Nebbia v. New York/Dissent McReynolds

by James Clark McReynolds

Separate opinion of MR. JUSTICE McREYNOLDS.

By an act effective April 10, 1933 (Laws, 1933, Ch. 158), when production of milk greatly exceeded the demand, the Legislature created a Control Board with power to

regulate the entire milk industry of New York state, including the production, transportation, manufacture, storage, distribution, delivery and sale. . . .

The

board may adopt and enforce all rules and all orders necessary to carry out the provisions of this article. . . . A rule of the board, when duly posted and filed as provided in this section, shall have the force and effect of law. . . ; a violation of any provision of this article or of any rule or order of the board lawfully made, except as otherwise expressly provided by this article, shall be a misdemeanor. . . .

After considering

all conditions affecting the milk industry including the amount necessary to yield a reasonable return to the producer and to the milk dealer . . .

the board

shall fix by official order the minimum wholesale and retail prices, and may fix by official order the maximum wholesale and retail prices to be charged for milk handled within the state. [p540]

April 17, this Board prescribed nine cents per quart as the minimum at which "a store" might sell. [*] April 19, appellant Nebbia, a small storekeeper in Rochester, sold two bottles at a less price. An information charged that, by so doing, he committed a misdemeanor. A motion to dismiss, which challenged the validity of both statute and order, being overruled, the trial proceeded under a plea of not guilty. The Board's order and statements by two witnesses tending to show the alleged sale constituted the entire evidence. Notwithstanding the claim, that, under the XIV Amendment, the State lacked power to [p541] prescribe prices at which he might sell pure milk, lawfully held, he was adjudged guilty and ordered to pay a fine.

The Court of Appeals affirmed the conviction. Among other things, it said, pp. 264 et seq.: —

The sale by Nebbia was a violation of the statute "inasmuch as the Milk Control Board had fixed a minimum price for milk at nine cents per quart."

The appellant not unfairly summarizes this law by saying that it first declares that milk has been selling too cheaply in the State of New York, and has thus created a temporary emergency; this emergency is remedied by making the sale of milk at a low price a crime; the question of what is a low price is determined by the majority vote of three officials. As an aid in enforcing the rate regulation, the milk industry in the State of New York is made a business affecting the public health and interest until March 31, 1934, and the Board can exclude from the milk business any violator of the statute or the Board's orders.

In fixing sale prices. the Board

must take into consideration the amount necessary to yield a "reasonable return" to the producer and the milk dealer. . . . The fixing of minimum prices is one of the main features of the act. The question is whether the act, so far as it provides for fixing minimum prices for milk, is unconstitutional . . . in that it interferes with the right of the milk dealer to carry on his business in such manner as suits his convenience without state interference as to the price at which he shall sell his milk. The power thus to regulate private business can be invoked only under special circumstances. It may be so invoked when the Legislature is dealing with a paramount industry upon which the prosperity of the entire State in large measure depends. It may not be invoked when we are dealing with an ordinary business, essentially private in its nature. [p542] This is the vital distinction pointed out in New State Ice Co. v. Liebmann (285 U.S. 262, 277). . . .

The question is as to whether the business justifies the particular restriction, or whether the nature of the business is such that any competent person may, conformably to reasonable regulation, engage therein. The production of milk is, on account of its great importance as human food, a chief industry of the State of New York. . . . It is of such paramount importance as to justify the assertion that the general welfare and prosperity of the State, in a very large and real sense, depend upon it. . . . The State seeks to protect the producer by fixing a minimum price for his milk to keep open the stream of milk flowing from the farm to the city and to guard the farmer from substantial loss. . . . Price is regulated to protect the farmer from the exactions of purchasers against which he cannot protect himself. . . .

Concededly, the Legislature cannot decide the question of emergency and regulation free from judicial review, but this court should consider only the legitimacy of the conclusions drawn from the facts found.

We are accustomed to rate regulation in cases of public utilities and other analogous cases, and to the extension of such regulative power into similar fields. . . . This case, for example, may be distinguished from the Oklahoma ice case (New State Ice Co. v. Liebmann, 285 U.S. 262, 277), holding that the business of manufacturing and selling ice cannot be made a public business, to which it bears a general resemblance. The New York law creates no monopoly; does not restrict production; was adopted to meet an emergency; milk is a greater family necessity than ice. . . . Mechanical concepts of jurisprudence make easy a decision on the strength of seeming authority. . . .

Doubtless the statute before us would be condemned by an earlier generation as a temerarious interference [p543] with the rights of property and contract . . . , with the natural law of supply and demand. But we must not fail to consider that the police power is the least limitable of the powers of government, and that it extends to all the great public needs; . . . that statutes . . . aiming to stimulate the production of a vital food product by fixing living standards of prices for the producer, are to be interpreted with that degree of liberality which is essential to the attainment of the end in view; . . .

With full respect for the Constitution as an efficient frame of government in peace and war, under normal conditions or in emergencies; with cheerful submission to the rule of the Supreme Court that legislative authority to bridge property rights and freedom of contract can be justified only by exceptional circumstances and, even then, by reasonable regulation only, and that legislative conclusions based on findings of fact are subject to judicial review, we do not feel compelled to hold that the "due process" clause of the Constitution has left milk producers unprotected from oppression, and to place the stamp of invalidity on the measure before us.

With the wisdom of the legislation, we have naught to do. It may be vain to hope, by laws, to oppose the general course of trade. . . .

We are unable to say that the Legislature is lacking in power not only to regulate and encourage the production of milk, but also, when conditions require, to regulate the prices to be paid for it, so that a fair return may be obtained by the producer and a vital industry preserved from destruction. . . . The policy of noninterference with individual freedom must at times give way to the policy of compulsion for the general welfare.

Our question is whether the Control Act, as applied to appellant through the order of the Board, number five, deprives him of rights guaranteed by the XIV Amendment. He was convicted of a crime for selling his own [p544] property — wholesome milk — in the ordinary course of business at a price satisfactory to himself and the customer. We are not immediately concerned with any other provision of the act, or later orders. Prices at which the producer may sell were not prescribed — he may accept any price — nor was production in any way limited. "To stimulate the production of a vital food product" was not the purpose of the statute. There was an oversupply of an excellent article. The affirmation is

that milk has been selling too cheaply . . . , and has thus created a temporary emergency; this emergency is remedied by making the sale of milk at a low price a crime.

The opinion below points out that the statute expires March 31, 1934, "and is avowedly a mere temporary measure to meet an existing emergency," but the basis of the decision is not explicit. There was no definite finding of an emergency by the court upon consideration of established facts, and no pronouncement that conditions were accurately reported by a legislative committee. Was the legislation upheld because only temporary, and for an emergency, or was it sustained upon the view that the milk business bears a peculiar relation to the public, is affected with a public interest, and, therefore, sales prices may be prescribed irrespective of exceptional circumstances? We are left in uncertainty. The two notions are distinct, if not conflicting. Widely different results may follow adherence to one or the other.

The theory that legislative action which ordinarily would be ineffective because of conflict with the Constitution may become potent if intended to meet peculiar conditions and properly limited was lucidly discussed, and its weakness disclosed, by the dissenting opinion in Home [p545] Building & Loan Assn. v. Blaisdell, 290 U.S. 398. Sixty years ago, in Milligan's case, this Court declared it inimical to Constitutional government, and did "write the vision and make it plain upon tables that he may run that readeth it."

Milligan, charged with offenses against the United States committed during 1863 and 1864, was tried, convicted and sentenced to be hanged by a military commission proceeding under an Act of Congress passed in 1862. The crisis then existing was urged in justification of its action. But this Court held the right of trial by jury did not yield to emergency, and directed his release.

Those great and good men [who drafted the Constitution] foresaw that troublous times would arise when rulers and people would become restive under restraint, and seek by sharp and decisive measures to accomplish ends deemed just and proper, and that the principles of constitutional liberty would be in peril unless established by irrepealable law. . . . The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times and under all circumstances. No doctrine involving more pernicious consequences was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government. Such a doctrine leads directly to anarchy or despotism.

Ex parte Milligan (1866), 4 Wall. 2, 120.

The XIV Amendment wholly disempowered the several States to "deprive any person of life, liberty, or property, without due process of law." The assurance of each of these things is the same. If now liberty or property may be struck down because of difficult circumstances, we must expect that, hereafter, every right must yield to the voice of an impatient majority when stirred by distressful [p546] exigency. Amid the turmoil of civil war, Milligan was sentenced; happily, this Court intervened. Constitutional guaranties are not to be "thrust to and fro and carried about with every wind of doctrine." They were intended to be immutable so long as within our charter. Rights shielded yesterday should remain indefeasible today and tomorrow. Certain fundamentals have been set beyond experimentation; the Constitution has released them from control by the State. Again and again, this Court has so declared.

Adams v. Tanner, 244 U.S. 590, condemned a Washington initiative measure which undertook to destroy the business of private employment agencies because it unduly restricted individual liberty. We there said —

The fundamental guaranties of the Constitution cannot be freely submerged if and whenever some ostensible justification is advanced and the police power invoked.

Buchanan v. Warley, 245 U.S. 60, held ineffective an ordinance which forbade negroes to reside in a city block where most of the houses were occupied by whites.

It is equally well established that the police power, broad as it is, cannot justify the passage of a law or ordinance which runs counter to the limitations of the Federal Constitution; that principle has been so frequently affirmed in this court that we need not stop to cite the cases.

Southern Ry. Co. v. Virginia, 290 U.S. 190, 196 —

The claim that the questioned statute was enacted under the police power of the State, and, therefore, is not subject to the standards applicable to legislation under other powers, conflicts with the firmly established rule that every State power is limited by the inhibitions of the XIV Amendment.

Akins v. Children's Hospital, 261 U.S. 525, 545.

That the right to contract about one's affairs is a part of the liberty of the individual protected by this clause [p547] [Fifth Amendment] is settled by the decisions of this Court, and is no longer open to question.

Meyer v. Nebraska, 262 U.S. 390, 399, held invalid a State enactment (1919) which forbade the teaching in schools of any language other than English.

While this Court has not attempted to define with exactness the liberty thus guaranteed, the term has received much consideration, and some of the included things have been definitely stated. Without doubt, it denotes not merely freedom from bodily restraint, but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.

Schlesinger v. Wisconsin, 270 U.S. 230, 240. "The State is forbidden to deny due process of law or the equal protection of the laws for any purpose whatsoever."

Near v. Minnesota, 283 U.S. 697, overthrew a Minnesota statute designed to protect the public against obvious evils incident to the business of regularly publishing malicious, scandalous and defamatory matters, because of conflict with the XIV Amendment.

In the following, among many other cases, much consideration has been given to this subject. United States v. Cohen Grocery Co., 255 U.S. 81, 88; Wolff Co. v. Industrial Court, 262 U.S. 522, and 267 U.S. 552; Pierce v. Society of Sisters, 268 U.S. 510; Tyson & Bro. v. Banton, 273 U.S. 418; Fairmont Creamery Co. v. Minnesota, 274 U.S. 1; Ribnik v. McBride, 277 U.S. 350; Williams v. Standard Oil Co., 278 U.S. 235; Sterling v. Constantin, 287 U.S. 378. All stand in opposition to the views apparently approved below. [p548]

If validity of the enactment depends upon emergency, then, to sustain this conviction, we must be able to affirm that an adequate one has been shown by competent evidence of essential facts. The asserted right is federal. Such rights may demand, and often have received, affirmation and protection here. They do not vanish simply because the power of the State is arrayed against them. Nor are they enjoyed in subjection to mere legislative findings.

If she relied upon the existence of emergency, the burden was upon the State to establish it by competent evidence. None was presented at the trial. If necessary for appellant to show absence of the asserted conditions, the little grocer was helpless from the beginning — the practical difficulties were too great for the average man.

What circumstances give force to an "emergency" statute? In how much of the State must they obtain? Everywhere, or will a single county suffice? How many farmers must have been impoverished or threatened violence to create a crisis of sufficient gravity? If, three days after this act became effective, another "very grievous murrain" had descended, and half of the cattle had died, would the emergency then have ended, also, the prescribed rates? If prices for agricultural products become high, can consumers claim a crisis exists, and demand that the Legislature fix less ones? Or are producers alone to be considered, consumers neglected? To these questions, we have no answers. When emergency gives potency, its subsidence must disempower; but no test for its presence or absence has been offered. How is an accused to know when some new rule of conduct arrived, when it will disappear?

It is argued that the report of the Legislative Committee, dated April 10th, 1933, disclosed the essential facts. May one be convicted of crime upon such findings? Are [p549] federal rights subject to extinction by reports of committees? Heretofore, they have not been.

Apparently the Legislature acted upon this report. Some excerpts from it follow. We have no basis for determining whether the findings of the committee or legislature are correct, or otherwise. The court below refrained from expressing any opinion in that regard, notwithstanding its declaration

that legislative authority to abridge property rights and freedom of contract can be justified only by exceptional circumstances and, even then, by reasonable regulation only, and that legislative conclusions based on findings of fact are subject to judicial review.

On the other hand it asserted — "This court should consider only the legitimacy of the conclusions drawn from the facts found."

In New York, there are twelve million possible consumers of milk; 130,000 farms produce it. The average daily output approximates 9,500,000 quarts. For ten or fifteen years prior to 1929 or 1930, the per capita consumption steadily increased; so did the supply. "Realizing the marked improvement in milk quality, the public has tended to increase its consumption of this commodity." "In the past two years, the per capita consumption has fallen off, [possibly] 10 percent."

These marked changes in the trend of consumption of fluid milk and cream have occurred in spite of drastic reductions in retail prices. The obvious cause is the reduced buying power of consumers.

These cycles of overproduction and underproduction, which average about 15 years in length, are explained by the human tendency to raise too many heifers when prices of cows are high, and too few when prices of cows are low. A period of favorable prices for milk leads to the raising of more than the usual number of heifers, but it is not until seven or eight years later that the trend is reversed as a result of the falling prices [p550] of milk and cows.

"Farmers all over the world raise too many heifers whenever cows pay, and raise too few heifers when cows do not pay."

During the years 1925 to 1930, inclusive, the prices which the farmers of the state received for milk were favorable as compared with the wholesale prices of all commodities. They were even more favorable as compared with the prices received for other farm products, for, not only in New York, but throughout the United States, the general level of prices of farm products has been below that of other prices since the World War.

The comparatively favorable situation enjoyed by the milk producers had an abrupt ending in 1932. Even before that, in 1930 and 1931, milk prices dropped very rapidly.

The prices which farmers received for milk during 1932 were much below the costs of production. After other costs were paid, the producers had practically nothing left for their labor. The price received for milk in January, 1933, was little more than half the cost of production.

Since 1927, the number of dairy cows in the state has increased about 10 percent. The effect of this has been to increase the surplus of milk.

Similar increases in the number of cows have occurred generally in the United States, and are due to the periodic changes in number of heifer calves raised on the farms. Previous experience indicates that, unless some form of arbitrary regulation is applied, the production of milk will not be satisfactorily adjusted to the demand for a period of several years.

Close adjustment of the supply of fluid milk to the demand is further hindered by the periodic changes in the number of heifers raised for dairy cows.

The purpose of this emergency measure is to bring partial relief to dairymen from the disastrously low prices for milk which have prevailed in recent months. It is recognized that the dairy industry of the state cannot be [p551] placed upon a profitable basis without a decided rise in the general level of commodity prices.

Thus, we are told, the number of dairy cows had been increasing, and that favorable prices for milk bring more cows. For two years, notwithstanding low prices, the per capita consumption had been falling. "The obvious cause is the reduced buying power of consumers." Notwithstanding the low prices, farmers continued to produce a large surplus of wholesome milk for which there was no market. They had yielded to "the human tendency to raise too many heifers" when prices were high, and "not until seven or eight years" after 1930 could one reasonably expect a reverse trend. This failure of demand had nothing to do with the quality of the milk — that was excellent. Consumers lacked funds with which to buy. In consequence, the farmers became impoverished, and their lands depreciated in value. Naturally, they became discontented.

The exigency is of the kind which inevitably arises when one set of men continue to produce more than all others can buy. The distressing result to the producer followed his ill-advised, but voluntary, efforts. Similar situations occur in almost every business. If here we have an emergency sufficient to empower the Legislature to fix sales prices, then, whenever there is too much or too little of an essential thing — whether of milk or grain or pork or coal or shoes or clothes — constitutional provisions may be declared inoperative, and the "anarchy and despotism" prefigured in Milligan's case are at the door. The futility of such legislation in the circumstances is pointed out below.

Block v. Hirsh, 256 U.S. 135 and Marcus Brown Holding Co. v. Feldman, 256 U.S. 170, are much relied on to support emergency legislation. They were civil proceedings; the first to recover a leased building in the District of [p552] Columbia; the second to gain possession of an apartment house in New York. The unusual conditions grew out of the World War. The questioned statutes made careful provision for protection of owners. These cases were analyzed, and their inapplicability to circumstances like the ones before us was pointed out, in Tyson & Bro. v. Banton, 273 U.S. 418. They involved peculiar facts, and must be strictly limited. Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 416, said of them —

The late decisions upon laws dealing with the congestion of Washington and New York, caused by the war, dealt with laws intended to meet a temporary emergency and providing for compensation determined to be reasonable by an impartial board. They went to the verge of the law, but fell far short of the present act.

Is the milk business so affected with public interest that the Legislature may prescribe prices for sales by stores? This Court has approved the contrary view; has emphatically declared that a State lacks power to fix prices in similar private businesses. United States v. Cohen Grocery Co., 255 U.S. 81; Adkins v. Children's Hospital, 261 U.S. 525; Wolff Packing Co. v. Industrial Court, 262 U.S. 522; Tyson & Bro. v. Banton, 273 U.S. 418; Fairmont Creamery Co. v. Minnesota, 274 U.S. l; Ribnik v. McBride, 277 U.S. 350; Williams v. Standard Oil Co., 278 U.S. 235; New State Ice Co. v. Liebmann, 285 U.S. 262; Sterling v. Constantin, 287 U.S. 378, 396.

Wolff Packing Co. v. Industrial Court, 262 U.S. 522, 537. — Here, the State's statute undertook to destroy the freedom to contract by parties engaged in so-called "essential" industries. This Court held that she had no such power.

It has never been supposed, since the adoption of the Constitution, that the business of the butcher, or the baker, the tailor, the woodchopper, the [p553] mining operator or the miner was clothed with such a public interest that the price of his product or his wages could be fixed by State regulation. . . . An ordinary producer, manufacturer or shopkeeper may sell or not sell as he likes.

On a second appeal, 267 U.S. 552, 569, the same doctrine was restated:

The system of compulsory arbitration which the Act establishes is intended to compel, and, if sustained, will compel, the owner and employees to continue the business on terms which are not of their making. It will constrain them not merely to respect the terms if they continue the business, but will constrain them to continue the business on those terms. True, the terms have some qualifications, but, as shown in the prior decision, the qualifications are rather illusory, and do not subtract much from the duty imposed. Such a system infringes the liberty of contract and rights of property guaranteed by the due process of law clause of the Fourteenth Amendment.

The established doctrine is that this liberty may not be interfered with, under the guise of protecting the public interest, by legislative action which is arbitrary or without reasonable relation to some purpose within the competency of the State to effect.

Fairmont Creamery Co. v. Minnesota, 274 U.S. 1, 9. — A statute commanded buyers of cream to adhere to uniform prices fixed by a single transaction. —

May the State, in order to prevent some strong buyers of cream from doing things which may tend to monopoly, inhibit plaintiff in error from carrying on its business in the usual way, heretofore regarded as both moral and beneficial to the public and not shown now to be accompanied by evil results as ordinary incidents? Former decisions here require a negative answer. We think the inhibition of the statute has no reasonable relation to the anticipated evil — high bidding by some with purpose to monopolize or destroy competition. Looking through form to substance, it clearly and unmistakably infringes private rights whose exercise [p554] does not ordinarily produce evil consequences, but the reverse.

Williams v. Standard Oil Co., 278 U.S. 235, 239. — The State of Tennessee was declared without power to prescribe prices at which gasoline might be sold.

It is settled by recent decisions of this Court that a state legislature is without constitutional power to fix prices at which commodities may be sold, services rendered, or property used unless the business or property involved is "affected with a public interest."

Considered affirmatively,

it means that a business or property, in order to be affected with a public interest, must be such or be so employed as to justify the conclusion that it has been devoted to a public use, and its use thereby, in effect, granted to the public. . . . Negatively, it does not mean that a business is affected with a public interest merely because it is large, or because the public are warranted in having a feeling of concern in respect of its maintenance.

New State Ice Co. v. Liebmann, 285 U.S. 262, 277. — Here, Oklahoma undertook the control of the business of manufacturing and selling ice. We denied the power so to do.

It is a business as essentially private in its nature as the business of the grocer, the dairyman, the butcher, the baker, the shoemaker, or the tailor, . . . And this court has definitely said that the production or sale of food or clothing cannot be subjected to legislative regulation on the basis of a public use.

Regulation to prevent recognized evils in business has long been upheld as permissible legislative action. But fixation of the price at which "A" engaged in an ordinary business, may sell in order to enable "B," a producer, to improve his condition has not been regarded as within legislative power. This is not regulation, but management, control, dictation — it amounts to the deprivation [p555] of the fundamental right which one has to conduct his own affairs honestly, and along customary lines. The argument advanced here would support general prescription of prices for farm products, groceries, shoes, clothing, all the necessities of modern civilization, as well as labor, when some legislature finds and declares such action advisable, and for the public good. This Court has declared that a State may not, by legislative fiat, convert a private business into a public utility. Michigan Comm'n v. Duke, 266 U.S. 570, 577. Frost Trucking Co. v. Railroad Comm'n, 271 U.S. 583, 592. Smith v. Cahoon, 283 U.S. 553, 563. And if it be now ruled that one dedicates his property to public use whenever he embarks on an enterprise which the Legislature may think it desirable to bring under control, this is but to declare that rights guaranteed by the Constitution exist only so long as supposed public interest does not require their extinction. To adopt such a view, of course, would put an end to liberty under the Constitution.

Munn v. Illinois (1877), 94 U.S. 113, has been much discussed in the opinions referred to above. And always the conclusion was that nothing there sustains the notion that the ordinary business of dealing in commodities is charged with a public interest and subject to legislative control. The contrary has been distinctly announced. To undertake now to attribute a repudiated implication to that opinion is to affirm that it means what this Court has declared again and again was not intended. The painstaking effort there to point out that certain businesses like ferries, mills, &c. were subject to legislative control at common law, and then to show that warehousing at Chicago occupied like relation to the public, would have been pointless if "affected with a public interest" only means that the public has serious concern about the perpetuity and success of the undertaking. That is true of almost all ordinary business affairs. Nothing in the [p556] opinion lends support, directly or otherwise, to the notion that, in times of peace, a legislature may fix the price of ordinary commodities — grain, meat, milk, cotton, &c.

Of the assailed statute, the Court of Appeals says —

It first declares that milk has been selling too cheaply in the State of New York, and has thus created a temporary emergency; this emergency is remedied by making the sale of milk at a low price a crime; the question of what is a low price is determined by the majority vote of three officials.

Also — "With the wisdom of the legislation we have naught to do. It may be vain to hope by laws to oppose the general course of trade." Maybe, because of this conclusion, it said nothing concerning the possibility of obtaining increase of prices to producers — the thing definitely aimed at — through the means adopted.

But, plainly, I think, this Court must have regard to the wisdom of the enactment. At least we must inquire concerning its purpose, and decide whether the means proposed have reasonable relation to something within legislative power — whether the end is legitimate, and the means appropriate. If a statute to prevent conflagrations should require householders to pour oil on their roofs as a means of curbing the spread of fire when discovered in the neighborhood, we could hardly uphold it. Here, we find direct interference with guaranteed rights defended upon the ground that the purpose was to promote the public welfare by increasing milk prices at the farm. Unless we can affirm that the end proposed is proper, and the means adopted have reasonable relation to it, this action is unjustifiable.

The court below has not definitely affirmed this necessary relation; it has not attempted to indicate how higher charges at stores to impoverished customers when the output [p557] is excessive and sale prices by producers are unrestrained, can possibly increase receipts at the farm. The Legislative Committee pointed out as the obvious cause of decreased consumption, notwithstanding low prices, the consumers' reduced buying power. Higher store prices will not enlarge this power, nor will they decrease production. Low prices will bring less cows only after several years. The prime causes of the difficulties will remain. Nothing indicates early decreased output. Demand at low prices being wholly insufficient, the proposed plan is to raise and fix higher minimum prices at stores, and thereby aid the producer whose output and prices remain unrestrained! It is not true, as stated, that "the State seeks to protect the producer by fixing a minimum price for his milk." She carefully refrained from doing this, but did undertake to fix the price after the milk had passed to other owners. Assuming that the views and facts reported by the Legislative Committee are correct, it appears to me wholly unreasonable to expect this legislation to accomplish the proposed end — increase of prices at the farm. We deal only with Order No. 5, as did the court below. It is not merely unwise; it is arbitrary and unduly oppressive. Better prices may follow, but it is beyond reason to expect them as the consequent of that order. The Legislative Committee reported —

It is recognized that the dairy industry of the State cannot be placed upon a profitable basis without a decided rise in the general level of commodity prices.

Not only does the statute interfere arbitrarily with the rights of the little grocer to conduct his business according to standards long accepted — complete destruction may follow; but it takes away the liberty of twelve million consumers to buy a necessity of life in an open market. It imposes direct and arbitrary burdens upon those already seriously impoverished with the alleged immediate design of affording special benefits to others. To him [p558] with less than nine cents it says — You cannot procure a quart of milk from the grocer although he is anxious to accept what you can pay and the demands of your household are urgent! A superabundance, but no child can purchase from a willing storekeeper below the figure appointed by three men at headquarters! And this is true although the storekeeper himself may have bought from a willing producer at half that rate, and must sell quickly or lose his stock through deterioration. The fanciful scheme is to protect the farmer against undue exactions by prescribing the price at which milk disposed of by him at will may be resold!

The statement by the court below that —

Doubtless the statute before us would be condemned by an earlier generation as a temerarious interference with the rights of property and contract . . . ; with the natural law of supply and demand,

is obviously correct. But another, that

statutes aiming to stimulate the production of a vital food product by fixing living standards of prices for the producer are to be interpreted with that degree of liberality which is essential to the attainment of the end in view

conflicts with views of Constitutional rights accepted since the beginning. An end, although apparently desirable, cannot justify inhibited means. Moreover the challenged act was not designed to stimulate production — there was too much milk for the demand, and no prospect of less for several years; also, "standards of prices" at which the producer might sell were not prescribed. The Legislature cannot lawfully destroy guaranteed rights of one man with the prime purpose of enriching another, even if, for the moment, this may seem advantageous to the public. And the adoption of any "concept of jurisprudence" which permits facile disregard of the Constitution, as long interpreted and respected, will inevitably lead to its destruction. Then, all rights will be subject [p559] to the caprice of the hour; government by stable laws will pass.

The somewhat misty suggestion below, that condemnation of the challenged legislation would amount to holding "that the due process clause has left milk producers unprotected from oppression," I assume, was not intended as a material contribution to the discussion upon the merits of the cause. Grave concern for embarrassed farmers is everywhere, but this should neither obscure the rights of others nor obstruct judicial appraisement of measures proposed for relief. The ultimate welfare of the producer, like that of every other class, requires dominance of the Constitution. And zealously to uphold this in all its parts is the highest duty intrusted to the courts.

The judgment of the court below should be reversed.

MR. JUSTICE VAN DEVANTER, MR. JUSTICE SUTHERLAND, and MR. JUSTICE BUTLER authorize me to say that they concur in this opinion.