Rohrer v. Milk Control Board

184 A. 133, 121 Pa. Super. 281, 1936 Pa. Super. LEXIS 195

• Court: Superior Court of Pennsylvania
• Decided: November 13, 1935
• Docket: Appeal, 239
• Status: Published

Opinions

Opinion by

Parker, J.,

The Pennsylvania Milk Control Board, undertaking to act by authority of the “Milk Control Board Law” (Act of January 2,1934, P. L. 174,1933-34; 31 PS 684), fixed minimum prices to be paid for milk in this Commonwealth by dealers to producers, by dealers to other dealers, and by consumers to dealers and stores, and issued a general order establishing such minimum prices. Later the board, after hearing and by virtue of the provisions of the act, found that Wayne L. Rohrer, trading as Rohrer’s Med-0 Farms Dairy, had wilfully violated official general orders of the board by paying to his producers less than the minimum prices prescribed by those orders, the total of such under payments being |3,788.11, and ordered that on and after December 4, 1934, he should “cease and desist purchasing or handling milk in Pennsylvania for sale, shipment, storage, processing, or manufacture within and without Pennsylvania, or from operating in any other way in Pennsylvania, as a milk dealer.” The respondent appealed from that order to the court of common pleas of Lancaster County which upheld the board, and he has now appealed to this court alleging as a reason for reversal that the act is unconstitutional.

The attack on the act is centered on that portion which provides for the fixing of a minimum price to be paid by dealers in milk, and it is urged that the provision is unconstitutional in four respects: (1) that the fixing of a maximum or minimum price for a commodity such as milk violates sections 1, 9, and 26 of Article I of the Pennsylvania Constitution; (2) that the power given to the board to fix prices is an unlawful delegation of authority by the legislature to a commission; (3) that the act violates section 7 of Article III of our Constitution which forbids the passage of certain local and special legislation; and (4) that the title, in violation of section 3 of Article III, does not give notice of the power to fix prices.

The act in a preamble declares that due to certain unfair, unjust, destructive, etc., trade practices the dairy industry and the constant supply of pure milk are imperiled, and such conditions are a menace to the health, welfare, and reasonable comfort of the inhabitants of the Commonwealth; that the production, transportation, manufacture, processing, storage, distribution, and sale of milk in the Commonwealth “is a business affecting the public health and affected with a public interest”; that the “production and distribution of milk is a paramount industry upon which the prosperity of the Commonwealth in large measure depends”; that “the danger to the public health and welfare is immediate and impending,” so that it will not admit of delay in public supervision and control; and that the act is an emergency measure. The act was made immediately effective and was to continue in force only until April 30,1935, but with certain amendments or additions was later continued by the Act of April 30, 1935, P. L. 96 (31 PS 684). The act created a Milk Control Board of three members to be appointed by the Governor by and with the consent of the Senate, and the board is made an “instrumentality of the Commonwealth” for the purpose of administering the provisions of the act with power “to supervise and regulate the entire -milk industry of this Commonwealth” and to establish reasonable trade practices and systems of production control, but does not alter or amend the Public Service Company Law or laws of the Commonwealth relating to public health or the prevention of fraud or deception. It is authorized to adopt and enforce rules and regulations necessary to carry out the act, is given authority to enter and inspect the premises, books, and records of dealers in milk for the purpose of securing information and data, and then is required to fix minimum prices and may fix maximum prices to be paid by milk dealers, stores, and customers for milk. The violation of any provision of the act or any rule, regulation, or order of the board is made a misdemeanor with a penalty of fine and imprisonment. All dealers are required to obtain licenses which, under certain conditions, may be refused or revoked. This is but a brief outline of the act, and it will be necessary to refer more particularly to certain provisions as we discuss its various phases. One cannot read the Milk Control Act and the orders of the board issued pursuant thereto without coming to the definite conclusion that the primary purpose of the act in question is to fix prices.

It is a well recognized rule that a court will never heed objections to the constitutionality of an act of assembly unless the litigant is affected by the particular feature alleged to be in conflict with the Constitution. He must show that the alleged unconstitutional feature injures him and so operates as to deprive him of rights protected by the Constitution: Mesta Machine Co. v. Dunbar, 250 Pa. 472, 476, 95 A. 585; Plymouth Coal Co. v. Com. of Penna., 232 U. S. 531, 34 S. Ct. 359. We will therefore confine our attention to such features of the act as affect the appellant adversely.

1. The appellant first challenges the power of the legislature to fix a maximum or minimum price for a commodity such as milk, charging that the act in question violates the Bill of Rights as contained in the first article of the Constitution of this Commonwealth. In turn, the appellee contends that production, distribution, and sale of milk is such an industry as peculiarly affects the public health and that the fixing of minimum and maximum prices is a legitimate exercise of the police power as a remedy intended to prevent the distribution and sale of impure milk, and also that the production, sale, and distribution of milk is a business affected with a public interest as that term is used in the cases.

The Supreme Court of this state and this court have heretofore in clear and vigorous language condemned price fixing except where the business considered was affected with a public interest. The legislature, by Act of June 29, 1881, P. L. 147, undertook to prescribe how operatives and laborers engaged in and about coal mines, iroh and steel manufactories, and other manufactories should be paid their wages and the return which should be given them. The Supreme Court, in the case of Godcharles & Co. v. Wigeman, 113 Pa. 431, 437, 6 A. 354, held the first four sections of that act unconstitutional inasmuch as it was an attempt by the legislature “to do what, in this country, cannot be done; that is, prevent persons who are sui juris from making their own contracts.” In that connection, Mr. Justice Goedon further said: “The Act is an infringement alike of the right of the employer and the employee; more than this, it is an insulting attempt to put the laborer under a legislative tutelage, which is not only degrading to his manhood, but subversive of his rights as a citizen of the United States. He may sell his labor for what he thinks best, whether money or goods, just as his employer may sell his iron or coal, and any and every law that proposes to prevent him from so doing is an infringement of his constitutional privileges, and consequently vicious and void.”

In the case of Com. v. Brown, 8 Pa. Superior Ct. 339, the Act of July 15, 1897, P. L. 286, which required the weighing of bituminous coal before it was screened and duly credited to the employee sending the same to the surface, was under consideration. In holding the act unconstitutional this court, in an opinion by that eminent jurist, President Judge Rice, said (p. 353): “The right to acquire, possess and protect property includes the right to make reasonable contracts, which shall be under the protection of the law. The word liberty’ as used in these constitutional declarations means more than freedom of locomotion. It includes and comprehends among other things freedom of speech, the right of self defense against unlawful violence, the right to live and work where he will, to earn his livelihood in any lawful calling, to pursue any lawful trade or avocation, and to freely buy and sell as others may......[p. 357] Every reason which has been suggested in defense of a law fixing the basis upon which the wages of bituminous coal miners shall be ascertained and computed might with as much force be urged in defense of a law fixing their wages outright. Surely no one would contend that such a law could be sustained, but in real principle the conflict with the Constitution is scarcely less apparent in the former case than it would be in the latter.” The opinion of the lower court in that case written by Judge Fbazeb, afterwards Chief Justice Fbazee, contains pertinent observations upon this subject. He there said (p. 343): “We say liberty, because liberty includes the right to make contracts, and to acquire and enjoy property. Labor is property, and every laboring man has the indefeasible right to enter into any contract for the sale of his labor that in his opinion will be the most advantageous and remunertive to himself, provided he does not infringe upon the rights of others in so doing.” If in a lawful exercise of the police power of the state the legislature does not have the power to fix wages, we cannot conceive of any theory upon which they have such power to fix maximum and minimum prices at which the price of such commodities as milk, meat, bread, and wheat may be fixed. The laborer must have his wage before he can purchase milk or other necessity.

This principle is equally well settled in the federal jurisdiction. Mr. Justice Sutherland, in the case of Williams v. Standard Oil Co., 278 U. S. 235, 239, 49 S. Ct. 115, said: “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.’ ” Also, see Wolff Packing Co. v. Court of Industrial Relations, 262 U. S. 522, 43 S. Ct. 630; Tyson & Bro. v. Banton, 273 U. S. 418, 427, 47 S. Ct. 426; Fairmont Creamery Co. v. Minnesota, 274 U. S. 1, 47 S. Ct. 506; Ribnik v. McBride, 277 U. S. 350, 48 S. Ct. 545.

We might therefore well rest our decision upon these cases. In fact, we would do so if it were not for the case upon which the appellee principally relies, Nebbia v. New York, 291 U. S. 502, 54 S. Ct. 505. The majority of this court are so impressed with the former decisions of our own courts, as well as those of the Supreme Court of the United States prior to the Nebbia case, that we are constrained to presume to distinguish the cases. That case deals with the Fourteenth Amendment to the federal Constitution and assumes that the Milk Control Act of New York is not violative of the Constitution of that state. We are engaged in the question at bar in a construction of our own Constitution, and so long as the federal Constitution is not involved we are bound by the decisions of our own Supreme Court (Act of June 24, 1895, P. L. 212, §10, 17 PS 198). The Fourteenth Amendment to the federal Constitution was not a limitation on the liberty of contract but rather a guarantee of it. Whether we accept the opinions of the majority or the minority in the Slaughterhouse Cases, 16 Wall. 36, and as considered in subsequent opinions of the United States Supreme Court dealing with the scope of the Fourteenth Amendment, it follows that we are called upon to construe our own Constitution, and if we do not impinge upon rights guaranteed by the federal Constitution we are not concluded by decisions of the federal Supreme Court. The decisions of that court upon kindred matters are always entitled to the utmost respect and will always receive such consideration from our courts: Central Litho. Co. v. Eatmor Chocolate Co., 316 Pa. 300, 309, 175 A. 697. In fact, the general principle which we have stated is not questioned by the appellee.

Moreover, the statements in the Nebbia case, that “a state is free to adopt whatever economic policy may reasonably be deemed to promote public welfare, and to enforce that policy by legislation adapted to its purpose,” was expressly limited by the qualification that it was made only “so far as the requirement of due process is concerned and in the absence of other constitutional restriction.” In this state we have a positive “constitutional restriction” upon the power of the legislature to interfere with the right of our citizens to make their own contracts.

Is the production, transportation, manufacture, processing, storage, distribution, and sale of milk a business “affected with a public interest”? We assume that this phrase has the limited meaning given to it in judicial decisions. Either the phrase means something more than that the public are concerned in respect to the maintenance of a business and have an interest in its effect on the public or the phrase is without meaning and all that has been said on the subject by the courts, federal and state, must be forgotten. The public welfare is affected by the conduct of any business. Considering the most ordinary relations of life, professional and industrial, the public are concerned in its success or failure as well as the manner in which it may be conducted. To say the general welfare alone furnishes a warrant for price fixing in the case of a purely private business is to nullify the Bill of Bights as contained in our state Constitution. We consequently assume, and we think properly so, that the general welfare does not furnish a sufficient basis for every regulation to which a business might be subjected.

It is admitted on all sides that there is neither definition which precisely describes the phrase “affected with a public interest” nor formula which will identify the category in which a business should be placed, just as it has been impossible to construct a comprehensive definition of police power. The meaning of the phrase under consideration can only be approximated. The term is employed to describe a limited classification of businesses which, by reason of peculiar relations to the public or privileges granted by the state, are subject to a more extensive control than other businesses. Nevertheless, the control is exercised by virtue of the police power of the state, a power inherent in a government to enact laws necessary to promote order, safety, health, morals, and general welfare in some aspects, and an attribute of sovereignty which exists without any reservation in the Constitution, corresponding to the right of self preservation in the individual (Com. v. Vrooman, 164 Pa. 306, 30 A. 217). Sic utere tuo ut alienum non laedas. “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”: Williams v. Standard Oil Co., supra (pp. 239, 240).

In Wolff Packing Co. v. Court of Industrial Relations, supra, Chief Justice Taft made the most accurate analysis that we have found. There the court subdivides businesses clothed with a public interest justifying public regulation into three classes: (1) Those carried on under the authority of a public grant or privileges expressly or impliedly imposing an affirma tive duty of rendering public service demanded by the public, such as common carriers and public utilities. (2) Occupations regarded as exceptional, the public interest attaching to which has been recognized from earliest times and has survived the period of arbitrary laws by Parliament or colonial legislatures for regulating trades and callings. In this class are inns, cabs, and grist mills. (3) Businesses which, though not public at their inception, have become such by devoting their business to a public use thereby granting the public an interest in that use and subjecting themselves to public regulation to the extent of that interest, although the property continues to belong to its private owner and to be entitled to protection accordingly. In this class are included public warehouses for storage of grain: Munn v. Illinois, 94 U. S. 113; Brass v. Stoeser, 153 U. S. 391, 14 S. Ct. 857; banks and banking: Noble State Bank v. Haskell, 219 U. S. 104, 31 S. Ct. 186; insurance: German Alliance Ins. Co. v. Lewis, 233 U. S. 389, 34 S. Ct. 612; Com. v. Vrooman, supra; regulating the leasing of buildings in the District of Columbia sustained as an emergency measure: Block v. Hirsh, 256 U. S. 135, 41 S. Ct. 458. If the milk business is affected with a public interest it must be in the third class.

In addition to the deliverances of our own courts to which we have referred, the United States Supreme Court has indicated by many decisions prior to the Nebbia case that certain private businesses similar to the milk business are not affected with a public interest and therefore are not subject to price control, or that the remedy proposed is not so relevant to the evil attempted to be corrected that there is justification for disregard of the right of private contract by virtue of the police power, and particularly that the legislature may not prescribe minimum prices for wages and sales of commodities where a private business is concerned: Adkins v. Children’s Hospital, 261 U. S. 525, 43 S. Ct. 394; Wolff v. Court of Industrial Relations, supra; Tyson & Bro. v. Banton, supra; Fairmont Creamery v. Minnesota, supra; Ribnik v. McBride, supra; Williams v. Standard Oil Co., supra; New State Ice Co. v. Liebmann, 285 U. S. 262, 52 S. Ct. 371; Sterling v. Constantin, 287 U. S. 378, 53 S. Ct. 190.

“It has never been supposed, since the adoption of the Constitution, that the business of the butcher, or the baker, the tailor, the wood chopper, the 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”: Wolff v. Court of Industrial Relations, supra, p. 537. In New State Ice Co. v. Liebmann, supra (p. 277), in construing the business of manufacturing and selling ice, the court described the ice business as one that is “as essentially private in its nature as the business of the grocer, the dairyman, the butcher, the baker, the shoemaker.” (Italics supplied.)

We can think of no business that is more essentially private than that of producing and selling milk. The producer and dealer reserve the right to sell to whomever they choose at wholesale or retail, and at no stage of the transaction does the dealer in milk devote his property to a public use. His position is the same as that of a farmer, or the dealer in meat, bread, and clothing. If business is divided into two categories, one consisting of the merchant, shop keeper, butcher, and baker, and another intended to include such businesses as public utilities, railroads and common carriers, innkeepers, bankers, insurance companies, grain elevators, and the like, we would readily place the producer and dealer in milk in the former class. More particularly, the relation of the milk dealer to his customers is a private relation. He chooses the persons to whom he will sell and the customer has his favorite dealer, in marked contrast to such businesses as utilities. We are of the opinion that the milk business is not affected with a public interest.

The Milk Control Board Law does not represent in any aspect an attempt to prevent a monopoly or unfair trade practices and we therefore refrain from discussing the right of the state to interfere with the use of private property by restrictions in such cases, but we note in passing that such practices and their effects have frequently had an important part in the justification of interference with liberty of contract both at common law and under written constitutions where such claims have been upheld.

Regardless of the classification in which we place the producer and dealer in milk, and admitting that in the exercise of the police power the business is subject to certain regulations, it does not follow that there are no limitations upon the remedy which may be applied. In fact, the remedy must bear a reasonable relation and be appropriate to the object to be accomplished. It must not be discriminatory or arbitrary. “On the other hand, ‘to justify the State in interposing its authority in behalf of the public, it must appear, first, that the interests of the public generally, as distinguished from those of a particular class, require such interference; and, second, that the means [employed] are reasonably necessary for the accomplishment of the purpose, and not unduly oppressive upon individuals; [that is to say] the legislature may not, under the guise of protecting the public interest, arbitrarily interfere with private business, or impose unusual and unnecessary restrictions upon lawful occupations’ (Lawton v. Steele, 152 U. S. 133, 137); and, in deciding whether or not a statute is a legal exercise of police power, courts are not bound by the mere form of the act, but will Took at the substance of things’: Mugler v. Kansas, supra [123 U. S. 623], p. 661”: Nolan v. Jones, 263 Pa. 124, 128, 106 A. 235.

It will be noted that the declaration in the preamble to the milk act is not that the supply of milk is imperiled, but the supply of pure milk. It is true that it is declared that the dairy industry is imperiled by existing conditions and those conditions are charged to various “unhealthful, unfair, unjust, destructive, demoralizing and uneconomic trade practices.” That the production, transportation, and distribution of milk is a proper subject of regulation by the legislature under its police powers is indisputable, since every business is subject to some control. Milk is a fertile medium for the development of bacteria and sanitary regulations are clearly essential to the preservation of the public health. Liquid milk is a perishable commodity and can only be retained in a condition fit for human consumption for a short time. This is recognized in a long list of acts of assembly in this state providing regulations and rules looking to the accomplishment of that end, and such statutes have been upheld: Com. v. Crowl, 245 Pa. 554, 91 A. 922; Hill v. Fetherolf, 236 Pa. 70, 84 A. 677; Hoar v. Lancaster, 290 Pa. 117, 137 A. 664. At the same time the business of producing and selling milk is essentially a private business.

The legislature has heretofore, by innumerable acts covering a period from 1853 to 1935, prohibited the sale of impure and unwholesome milk and prescribed a host of regulations to insure such supply. A reference to the digest of our statutes (31 PS 521 to 660g) discloses that at present there are many laws in force intended to accomplish the same end and providing severe penalties which apply directly to the evils described in the preamble to the Milk Control Board Law. The right to enact such legislation prohibiting the Sale of impure milk and furnishing safeguards for the public from the danger of an impure or unwholesome supply of milk is well settled by judicial decisions. Now the legislature undertakes, under the guise of a health regulation, to fix the prices for the sale of milk in certain cases. (It will be noted that milk supplied directly by producer to consumer is not made subject to price regulation.) As we have seen, the fixing of prices for ordinary commodities, even necessities of life, has been condemned by our courts as unconstitutional and by the federal courts prior to the Nebbia case. We had remedies prior to the statute that we are considering that are comprehensive and constitutional and which, if enforced, will assure the public that the supply of milk be pure, but a remedy of totally different character is now proposed.

“Because abuses may, and probably do, grow up in connection with this business, is adequate reason for hedging it about by proper regulations. But this is not enough to justify destruction of one’s right to follow a distinctly useful calling in an upright way. Certainly there is no profession, possibly no business, which does not offer peculiar opportunities for reprehensible practices; and as to every one of them, no doubt, some can be found quite ready earnestly to maintain that its suppression would be in the public interest. Skilfully directed agitation might also bring about apparent condemnation of any one of them by the public. Happily for all, the fundamental guaranties of the Constitution cannot be freely submerged if and whenever some ostensible justification is advanced and the police power invoked”: Adams v. Tanner, 244 U. S. 590, 37 S. Ct. 662, 664.

When the legislature undertook to fix minimum and maximum prices for milk, this did not constitute a regulation to prevent an alleged evil but was an assumption of management, control, and dictation and “amounts to the deprivation of the fundamental right which one has to conduct his own affairs honestly and along customary lines” (Dissenting Opinion of Mr. Justice McReynolds in Nebbia case, p. 555).

We can see no reasonable relation between the existing or portending evil in the milk industry and the establishing of a minimum price to be paid by dealer to producer and by consumer to dealer. On the other hand, it is apparent that the price fixing feature of this statute is purely of an economic character and an attempt to apply to one commodity a new social theory which is repugnant to our Constitution. The price fixing feature of this act, in the words of Nolan v. Jones, supra, is not reasonably necessary for the accomplishment of the purpose, is an arbitrary interference with private business, and imposes unusual and unnecessary restrictions upon a lawful business.

It is further urged by the appellee that an emergency exists and that this and other facts declared by the legislature to exist furnish a sufficient basis for the action taken. The first assertion is answered by many decisions of the courts, state and federal, and very recently in Schechter Poultry Corp. v. U. S., 295 U. S. 495, 528, 55 S. Ct. 837, 842, where it was said: “Extraordinary conditions may call for extraordinary remedies. But the argument necessarily stops short of an attempt to justify action which lies outside the sphere of constitutional authority. Extraordinary conditions do not create or enlarge constitutional power.” In regard to the second proposition, there is equal unanimity. The mere declarations by the legislature that an emergency exists or that a particular kind of property or business is affected with a public interest is not conclusive upon the question of the validity of the regulation. The matter is one which is always open to judicial inquiry: Tyson & Bro. v. Banton, supra, p. 431; Wolff v. Court of Industrial Relations, supra; Producers’ Transportation Co. v. R. R. Comm., 251 U. S. 228, 230, 40 S. Ct. 131.

The appellee, to support its contention that fixing a minimum price for milk has a reasonable relation to the necessity for a supply of pure milk, argues that the regulations which have been imposed on the milk industry have so added to the expense of production and distribution that those engaged in the business have failed to comply with the law and they must therefore be assured of a better price to preserve the quality of milk. Expressed in another way, it means that the laws are being violated and it is proposed to increase prices to the end that the producer and dealer may be persuaded to obey the law. It will require a sounder argument than that to justify the overriding of the constitutional guaranty of liberty of contract under the guise of police power. Those who would justify such an exercise of police power must show that it is necessary to do so for the security of social order, the preservation of life and health, or for reasons of like magnitude. We view the proposed remedy as part of a new social plan which is concerned with the public economy rather than the public health. We do not mean to intimate that the police power may not be concerned with certain phases of public economy, but the limits are different and the remedies must be appropriate. A reference to paragraph C of section 18 of the act makes clear the prime purpose of this act. It is declared “to be the legislative intent that the public emergency requires that the benefits of any increase of prices received by milk dealers by virtue of the minimum price provisions of this section shall be given to producers.” The advantage of any increase of price is given exclusively to the producer, notwithstanding the fact that it is a matter of common knowledge that milk may become contaminated or unwholesome while in transportation or being handled by dealers or storekeepers. They, however, are to receive no part of the increase in price. This would seem to be a further indication that the purpose of price fixing is primarily economic. While the wisdom of an act is not generally for the courts, the purposes and objects of the act have a very definite part in determining the propriety of a remedy.

We cannot close our eyes to the consequences that may follow if it is held that the legislature has a right to prescribe a minimum and a maximum price for milk. An adequate supply of wholesome meat, bread, the staff of life, wheat, farm produce, and groceries is definitely in the same class as milk. Clothing in our climate, as well as in our society, is a primary necessity. To go a step farther, an adequate supply of gasoline closely approaches that of food stuffs in its effect on society as it now exists. We are unable to see how any court can say that the legislature may fix a price to be charged by the milk dealer but may not fix a price to be charged by the baker and butcher, the farmer, groceryman, and dealer in clothing. If a change is to be made in the fundamental law of the Commonwealth so revolutionary as to hold that the legislature may fix maximum and minimum prices for milk, bread, and clothing, it does not lie within the powers of this court to make the change as the decisions of the Supreme Court of Pennsylvania are here binding upon us. It has heretofore been possible to draw an approximate line between those businesses which are affected with a public interest and those that are not, and again and again it has been held that price fixing is not a lawful remedy for the regulation of a purely private business. If we adopt the theory of the appellee, the reasoning by our own courts, as well as the federal courts, concerning businesses affected with a public interest is to be discarded and the legislature has the right, under the guise of promoting the public welfare, to enforce almost any economic policy which it declares to be wise and expedient.

About the time of the Revolution, bills of rights were made a part of almost every state constitution in the union as it then existed, and after the adoption of the federal Constitution like restrictions were placed in that document. These were intended to establish the principle that there are rights in the people beyond the control of the State. It was intended that the lives, liberty, and property of the citizens should not be subject to the absolute disposition or unlimited control of any legislature, even the most democratic depository of power. “It is true it is a despotism of the many, of the majority, if you choose to call it so, but it is none the less a despotism......The theory of our government, state and national, is opposed to the deposit of unlimited power anywhere”: Loan Assn. v. Topeka, 20 Wall. 655, 662.

There is a further objection to section 18. The early paragraphs of that section provided that the board shall ascertain what will be most beneficial to the public interest and will best protect the milk industry and shall consider all conditions affecting the industry, including an amount necessary to yield a reasonable return to the producer and the milk dealer. Assuming for the sake of argument that this is a standard for guidance of the board, nevertheless it is declared by subsection C that the benefits of any increase of price received by the milk dealers as a result of action by the board shall be given to the producers. Subsection C would seem to prevent the board from fixing a minimum price to be received by the dealer that would represent an increase in price so that the dealer’s margin would be more than it had been before prices were fixed. The fixing of a minimum price to be paid by the dealer and a minimum to be paid by the consumer determines, in practical effect, the margin to be received by the dealer. In other words, notwithstanding any conditions that may exist or may arise the dealer is not to have his margin increased and that even though the public in terest, the improvement of the milk industry, or receiving a fair return would warrant a different price. We deem this to be an arbitrary and discriminatory provision that affects the entire section.

The majority of this court are of the opinion that the price fixing feature of the “Milk Control Board Law” is unconstitutional in that it is in violation of the Bill of Rights of the Constitution of this Commonwealth and that the price fixing feature of the act bears no reasonable or proximate relation to the securing of an adequate supply of pure milk, and is arbitrary and discriminatory.

2. The “Milk Control Board Law” is next attacked on the ground that the delegation of power to fix prices vested in the Milk Control Board was an unconstitutional delegation of authority by the legislature. This second proposition is predicated upon an assumption which is not admitted by appellant that a maximum or minimum price for milk may be fixed by the legislature acting directly or through an agency. The Constitution of this Commonwealth in Article II, section 1, provides: “The legislative power of this Commonwealth shall be vested in a General Assembly which shall consist of a Senate and a House of Representatives.” This court recently (Gima v. Hudson Coal Co., 106 Pa. Superior Ct. 288, 296, 161 A. 903) had occasion to inquire into the history and scope of delegation of power by the legislature and we will not repeat what was there so well said by President Judge Keller, but it will be necessary to make some further reference to the authorities insofar as they may throw light upon the immediate question involved, a delegation of power by the legislature. “Under a well-balanced constitution, the legislature can no more delegate its proper function than can the judiciary”: Boro. of West Philadelphia, 5 W. & S. 281, 283. “The legislature cannot delegate its power to make a law; but it can make a law to delegate a power to determine some fact or state of things upon which the law makes, or intends to make, its own action depend. To deny this would be to stop the wheels of government. There are many things upon which wise and useful legislation must depend, which cannot be known to the law-making power, and must, therefore, be a subject of inquiry and determination outside of the halls of legislation”: Locke’s Appeal, 72 Pa. 491, 498.

In the Gima case the question involved was the constitutionality of an act affecting the anthracite mining industry where the legislature delegated the power to determine how certain high explosives should be used. We there said (p. 303): “The General Assembly cannot be expected to enact laws which shall in themselves keep abreast of every advance of science and invention in the explosive line, any more than it can of itself determine when a working place is free of gas and fit to work in.” The opinion then pointed out that a means had been established to determine the safe method to store, charge, fire, and use high explosives as well as a method of making known such determination. The opinion then continues: “In doing so, the General Assembly has legislated — not the powder manufacturer or coal operator — no legislative power or authority has been delegated to them.”

In the federal jurisdiction the cases are in precise harmony with our own decisions. In the very recent case of Panama Refining Co. v. Ryan, 293 U. S. 388, 426, 55 S. Ct. 241, 251, Chief Justice Hughes, speaking for the court, said: “Applying that principle, authorizations given by Congress to selected instrumentalities for the purpose of ascertaining the existence of facts to which legislation is directed have constantly been sustained. Moreover the Congress may not only give such authorizations to determine specific facts, but may establish primary standards, devolving upon others the duty to carry out the declared legislative policy; that is, as Chief Justice Marshall expressed it, ‘to fill up the details’ under the general provisions made by the Legislature.” “The Congress may not delegate its purely legislative power to a commission, but, having laid down the general rules of action under which a commission shall proceed, it may require of that commission the application of such rules to particular situations and the investigation of facts, with a view to making orders in a particular matter within the rules laid down by the Congress”: Interstate Commerce Com. v. Goodrich Transit Co., 224 U. S. 194, 214, 32 S. Ct. 436, 441.

The case of J. W. Hampton, Jr., & Co. v. U. S., 276 U. S. 394, 48 S. Ct. 348, is peculiarly pertinent to the situation here involved as there was there delegated to the President, with the assistance of the United States Tariff Commission, power to fix tariffs subject to certain definite rules or standards to be employed in determining a proper rate to carry out the policy prescribed by the act. Four definite standards were provided by which the action of the President was to be guided, but Congress found it necessary to use officers of the executive branch within defined limits to secure the exact effect intended by its acts of legislation by vesting discretion in such officers to make findings and provide regulations. It was there said (p. 409): “If Congress shall lay down by legislative act an intelligible principle to which the person or body authorized to fix such rates is directed to conform, such legislative action is not a forbidden delegation of legislative power.”

We will examine the powers delegated by the legislature in the Milk Control Board Law in the light of these decisions with a view to determining what primary standards have been established as a basis for the fixing of prices. The preamble discloses certain existing evils in the milk industry and the need of a whole some supply of pure milk, of an improvement in the milk industry, and of increasing the purchasing power of milh producers, hut declares no policy and establishes no standard by which the price of milk is to be fixed. A Milk Control Board of three members to be appointed by the Governor is declared to be “the instrumentality of the Commonwealth for the purpose of administering the provisions” of the act, and it is given power to regulate “the entire milk industry,” to investigate it in all its phases and secure data. Milk dealers are required to be licensed before they can buy, sell, or distribute milk and their licenses may be refused, revoked, or suspended for failure to comply with the provisions of the act. Section 18 provides: “A. The board shall ascertain, by such examination or investigation as the emergency may warrant, what prices for milk in the several localities and markets of the Commonwealth, and under varying conditions, will be most beneficial to the public interest and will best protect the milk industry in the Commonwealth and insure a sufficient quantity of pure and wholesome milk to adults and minors in the Commonwealth, having special regard to the health and welfare of children residing therein. The board shall take into consideration all conditions affecting the milk industry, including the amount necessary to yield a reasonable return to the producer and to the milk dealer. B. The board, after making such examination or investigation, 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 sold within the Commonwealth, wheresoever produced,” including sales by milk dealers to other milk dealers, consumers, and stores and by stores to consumers. Subsection C is as follows: “It is hereby declared to be the legislative intent that the public emergency requires that the benefits of any increase of prices received by milk dealers by virtue of the minimum price provisions of this section shall be given to producers, except in any case where the board deems a deviation from this policy necessary in order to maintain proper milk markets and outlets for producers. The board shall, whenever it deems such action necessary to accomplish this purpose, issue orders, rules or regulations to effectuate this intent.” By subsection D it is provided that the board shall fix, by official order, the minimum prices to be paid by milk dealers to producers and others for milk.

Subsection B provides for the fixing of prices without specific requirement that any standard shall be followed or any facts found. The preceding subsection A does provide that the commission shall first ascertain what price will be most beneficial to the public interest and best protect the milk industry in the Commonwealth and take into consideration all conditions affecting the industry, including thé amount necessary to yield a reasonable return to producer and dealer, but the price fixed is not required to be based on such matters. While the act is, in the language employed, far from being definite or satisfactory, in view' of the fact that an act should be construed so as to be constitutional if possible to do so, we will assume that the matters referred to in subsection A are to be considered before fixing a price but are not required to form a basis for such price. We next note that there is no provision for making any findings of fact as a basis for a general order. The weakness of the act was apparently recognized by the legislature when the act was amended and extended by Act of April 30, 1935, for it was then provided that the commission should “after a hearing” ascertain the matters referred to and should “base all prices upon all conditions affecting the milk industry,” including amounts necessary to yield a reasonable return to producer and dealer. In addition, by the amended act the commission is required to file findings of fact with all orders fixing prices.

Now it will be observed that in respect of price fixing this act represents a marked contrast to the procedure in fixing rates to be charged by public utilities. In the case of the latter a tariff is filed by the utility and then the commission determines whether the rate is just, reasonable, etc., and that is done after hearing where the party affected has an opportunity to be heard, and the finding affects only the utility which is being investigated. Here the commission proceeds ex parte so far as a particular individual is concerned and fixes a price for a zone the extent of which is fixed by the commission, but applies alike to all those in the particular zone.

We are here concerned alone with the original act of 1934 and are intending to express no opinion on the act as amended. Referring to the original act and giving it a liberal construction, what if any standards are provided to govern the exercise of authority by the commission? It is to make an investigation and ascertain what prices will be most beneficial to the public interest and protect the milk industry, and it is to take into consideration all conditions affecting the milk industry including the amount necessary to yield a reasonable return. It is not required that those elements be made a basis or standard for a finding. Indeed, we fail to find any standard by which it is to be determined what will be beneficial to the public and the milk industry. This is a large question and one as to which different theories, social and economic, might be applied. Without any limitation the commission is then authorized to fix minimum and maximum prices. The commission may base its conclusion on any one of innumerable theories, that are now a matter of public discussion, as to the ideal relations which should exist between various groups of the whole state. All legisla tion is presumed to be enacted for the benefit of the state as a whole and to reasonably protect the interests of its members, but it has never heretofore been intimated that the legislature may vest in another body created by it the power to determine what rule or policy is for the interest of the state. We can see this price fixing section of the act as nothing more than legislation by commission, pure and simple.

We think that the distinction made here will become clear by considering concrete examples. The case of Hampton v. U. S., supra, is a conspicuous example of lawful delegation of power. The court was there concerned with the so-called “flexible tariff provision” of the Act of September 21, 1922 (19 TTSCA §§154-159) and the authority conferred upon the President. Congress there declared its policy to make the amount of tariff equalize, within prescribed limitations, the difference in cost of production in this and foreign countries. Realizing that such differential in prices would vary from time to time and place to place, Congress authorized the President, with the assistance of the tariff commission, to determine what those differentials were and base its action upon findings of fact as to the “differences in costs of production in the United States and the principal competing country.” This standard was amplified by requiring the commission to take into consideration four matters. . Then the proclaiming of a new tariff was made to depend on specific findings of fact which were intended to measure the difference in costs of production. As was pointed out by Chief Justice Taft, the policy and standard were both declared by Congress and to the President was delegated only the power to find the specific facts as a requisite to a proclamation authorizing an increase of tariff. Now, let us assume that Congress had simply declared that in the regulation of foreign commerce certain inequities had appeared that were detrimental to the interests of the country and then had authorized the tariff commission to fix whatever tariff they deemed to the best interest of the people as a whole and the businesses concerned. Would anyone contend that the commission would not be given legislative authority? Yet that is precisely what has been done in the act which we are considering. No standards are set up, except general welfare, and the board is not limited in the adoption of any theory, political, social, or economic, which in its judgment will accomplish a desired result. We can not imagine any clearer example of unconstitutional delegation of legislative authority.

It is argued that owing to varying conditions it is extremely difficult for the legislature an advance to fix prices which will be workable. That is not a sufficient excuse for the surrendering by the legislature of its prerogatives to a body of three men with power to regulate an entire industry and jeopardize, if not destroy, the property of our citizens.

We have a number of cases in Pennsylvania which indicate the line of demarcation. In Com. v. Falk (No. 1), 59 Pa. Superior Ct. 217, the legislature enumerated diseases of cattle and poultry which it deemed transmissible and then authorized a board created by the legislature to proclaim other diseases, now or hereafter, of a transmissible character and prohibited the shipping of cattle and stock having such diseases. There, there was a specific fact to be determined and action was made to depend upon that determination, to wit, what are transmissible diseases. In Com. v. Puder, 261 Pa. 129, 104 A. 505, the banking commission was given power to determine the character and general fitness of particular applicants for licenses to engage in the business of loaning money in sums of less than three hundred dollars. There again a specific fact was to be determined and action was made dependent on such determination. In O’Neil v. Amer. Fire Ins. Co., 166 Pa. 72, 30 A. 943, the state insurance commissioner was given authority to impose a uniform fire insurance policy upon all companies operating in this Commonwealth and this was held to be an unlawful delegation of power. We apply to the act we are considering the language of Chief Justice Hughes in Panama Refining Co. v. Ryan, supra (p. 430), where it was said: “Instead of performing its lawmaking function, the Congress could at will......transfer that function to the President or other officer or to an administrative body. The question is not of the intrinsic importance of the particular statute before us, but of the constitutional processes of legislation which are an essential part of our system of government.” What has been attempted to be done here is, as we see it, precisely what was condemned by the United States Supreme Court in the cases of Panama Refining Co. v. Ryan, supra, and Schechter Poultry Corp. v. U. S., supra.

Appellee contends that the milk act we are considering contains standards for the guidance of the Milk Control Board that are just as definite as in the case of the Public Service Company Act. With that statement we canot agree. In addition to the differences that we have heretofore pointed out, we call attention to the fact that in the case of utilities an individual rate made or proposed by the utility is investigated by the commission and the inquiry is as to whether that rate is unjust, unreasonable, or inadequate. Not only is the subject of investigation definite, but the meaning of the phrase “just, reasonable, and adequate” had by judicial decisions been given a definite meaning prior to the passage of our own act in 1913. In fact, even at common law where a shipper was charged an unreasonable rate he might recover the excess rate: Centre County Lime Co. v. P. S. C., 96 Pa. Superior Ct. 590; Texas & Pacific R. Co. v. Abilene O. C. Co., 204 U. S. 426, 27 S. Ct. 350, 353. In the past twenty years a host of decisions have been rendered further defining the terms so that the expression “just, reasonable, and adequate” has a well defined meaning. In the milk act we are entering a new realm of price fixing without any definite or fixed plan or one that has been tried and tested. The business dealt with is one that is essentially private, at least as heretofore considered. Most important of all, the Milk Control. Board Law nowhere says that the rate fixed by the board shall be just, reasonable, and adequate, or the equivalent of those words. The courts, federal and state, have many times said that one engaged in a purely private business may not be compelled to assume the responsibilities of a business affected with a public interest. The Milk Control Board is unfettered and uncontrolled as to the theory that it shall adopt in determining maximum and minimum prices.

The courts have frequently inferred that they did not regard “the public interest” as a sufficient standard if that phrase was of such broad content as to include anything relating to the general welfare. In New York Central Sec. Corp. v. U. S., 287 U. S. 12, 23, 53 S. Ct. 45, Chief Justice Hughes was considering the force of the phrase as a standard and, citing Texas & Pacific Ry. Co. v. Gulf, etc., 270 U. S. 266, 277, 46 S. Ct. 263, said: “It is a mistaken assumption that this is a mere general reference to public welfare without any standard to guide determinations......The provisions now before us were among the additions made by Transportation Act, 1920, and the term 'public interest’ as thus used is not a concept without ascertainable criteria, but has direct relation to adequacy of transportation service, to its essential conditions of economy and efficiency, and to appropriate provision and best use of transportation facilities, questions to which the Interstate Commerce Commission has constantly addressed itself in the exercise of the authority conferred.” Also, see U. S. v. Chemical Foundation, 272 U. S. 1, 47 S. Ct. 1. The plenary discretion given to the Milk Control Board is vitally different. They have not had the advantage of long experience acquired by pragmatic tests but are empowered “to supervise and regulate the entire milk industry of this Commonwealth,” as well as to fix rates.

There is another and graver objection to the validity of this delegation of power. It will be observed that the original act made no provision for the finding of facts on which it predicated action by the Milk Control Board. The record discloses that the first alleged violations by this defendant were to General Order No. 6 which was offered in evidence. We search that order in vain for any findings of fact or indication of the base upon which prices were fixed. It is a mere declaration of what the prices shall be for various grades of milk and localities. The same is true of General Orders 8, 9,10,12, and 13. Such orders are ineffective.

“If it could be said that from the four corners of the statute any possible inference could be drawn of particular circumstances or conditions which were to govern the exercise of the authority conferred, the President [Board] could not act validly without having regard to those circumstances and conditions. And findings by him [it] as to the existence of the required basis of his action would be necessary to sustain that action, for otherwise the case would still be one of an unfettered discretion as the qualification of authority would be ineffectual......But if from the extremely broad description contained in that section and the widely different matters to which the section refers, it were possible to derive a statement of prerequisites to the President’s [Board’s] action under section 9 (c) [18], it would still be necessary for the President [Board] to comply with those conditions and to show that compliance as the ground of his prohibition. To hold that he [it] is free to select as he [it] chooses from the many and various objects generally described in the first section, and then to act without making any finding with respect to any object that he [it] does select, and the circumstances properly related to that object, would be in effect to make the conditions inoperative and to invest him with an uncontrolled legislative power”: Panama Refining Co. v. Ryan, supra, pp. 431, 432.

It may be contended that this defect is waived by the stipulation filed by the parties. If the stipulation is broad enough to waive consideration of this question, it is one that cannot be passed over by us. Otherwise we would be considering a purely academic question. In addition the record itself discloses this defect.

The majority of this court are of the opinion that section 18 of the Milk Control Board Law is unconstitutional in that it violates the Bill of Rights of the Constitution of this Commonwealth and constitutes an unlawful delegation of authority by the legislature to the Milk Control Board to fix maximum and minimum prices. In view of the conclusions heretofore stated, we deem it unnecessary to refer to the other matters raised by the appellant.

We have had the benefit of arguments of unusual excellence by counsel for the parties concerned in this appeal and they have had the consideration that the importance of the matter demands, but we are not all of one mind. This matter is of such importance that, in the judgment of all the members of the court, it is expedient that the case should be decided by the Supreme Court of this Commonwealth, and the case will be certified to the Supreme Court for full consideration and decision when a dissenting opinion, or opinions, have been filed in accordance with the pro visions of section 10 of the Act of June 24, 1895, P. L. 212.

The order and decree of the court below are reversed.

Keller, P. J., and Baldrige and Rhodes, JJ. dissent.