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Section 5 provides that the board has power to supervise, regulate, and control the production, distribution, and sale of milk within the State.25

Section 6 provides that whenever the board shall determine, either upon complaint or upon its own initiative, after public notice and hearing, that the public health is menaced, jeopardized, or likely to be impaired or deteriorated by the loss or substantial lessening of a supply of milk of proper quality in a specified market, the board shall fix the just and reasonable minimum or maximum prices, or both, that shall be paid producers or associations of producers by distributors, and the manner of payment and the prices charged consumers and others for milk by distributors, as long as such condition is found to prevail in such market. The prices so fixed need not be uniform in all markets and may be changed from time to time after such notice and public hearing as deemed by the board in the public interest. Nothing herein shall be construed to prohibit a producers' cooperative, organized under chapter 224 of the Public Laws or similar laws of other states, from blending the proceeds from the sale of its milk in all markets and all classifications, and distributing such to its members in accordance with a contract with its members, or in making deductions from sums due members of such sums as may be authorized by the membership to be so deducted.26

Section 7 provides that the board may accept established and defined classes and grades of milk or may establish and define such classes and grades, and shall specify to what classes or grades the prices fixed pursuant to section 6 hereof shall apply.

Section 8 provides that the board may, upon proper evidence, decline to grant or may, after due notice and public hearing, suspend or revoke a license. Violation by a distributor of the provisions hereof shall be sufficient cause.

Section 10 provides that the board shall have power to make orders hereunder, conduct hearings and adopt, promulgate, and enforce such reasonable rules and regulations as are deemed necessary to carry out the provisions of this act.

Section 12 provides that, anyone violating any provision of this act or order hereunder, or any rule or regulation of the board made hereunder, or failing to answer a subpoena or to testify before the board, shall be fined not exceeding one hundred dollars or

In so far as sections 5 and 10 of this act purport to confer upon the board general authority to regulate and control the milk industry in the state, they are invalid as an unrestricted delegation of legislative power. In re Opinion of the Justices, supra.

20

This section held to sufficiently establish "policy and standard” requirements for guidance of the board and is valid. In re Opinion of the Justices, supra.

be imprisoned for not more than one year, or both, and each day during which such violation shall continue shall be deemed a separatė violation. The court imposing such penalty, within five days of the receipt of such fine, shall send the same to the board.

Section 14 provides for a rehearing within 20 days after any order or decision of the board.

Section 17 provides for appeal by petition to the supreme court after denial of rehearing or after decision on rehearing.

Section 33 provides that no proceeding other than the appeal herein provided for shall be maintained in any court of this state to set aside, enjoin the forcement of, or otherwise review or impeach any order of the board, except as otherwise specially provided."

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Sec. App. A: 8-2 to 8-20 provides that the Milk Control Board consists of 5 members to be appointed by the Governor. It is from time to time to fix prices for which milk is to be bought, sold or distributed and to supervise and regulate the entire milk industry, including production, importation, transportation, sale for manufacture, storage, distribution, delivery, sale; to issue licenses to persons engaged in the industry; to establish and require observance of fair trade practices. Further, the board is authorized to make the necessary orders, rules and regulations to carry out the intent and policy of this act to control or prevent unfair, unjust, destructive and demoralizing practices.

Sec. App. A: 8-24 provides that no milk dealer, processor, subdealer or store distribute or sell milk in this State which is obtained from any producer or other dealer, subdealer or processor where the milk has been purchased either directly or indirectly for a price less than the price fixed by the board to be paid for milk to be distributed in a given market.

Sec. App. A:8-34 provides that the board may ascertain, determine, and fix by investigations and proof, as the emergency permits,

"Sections 14 to 33 held to be valid. In re Opinion of the Justices, supra. This act expires June 30, 1941.

"Prior milk control act, L. 1933, c. 169, held by the court to be constitutional. State v. Newark Milk Co., 118 N. J. Eq. 504, 179 Atl. 116 (E. & App. 1935); State v. Richman Ice Cream Co., 117 N. J. Eq. 296, 175 Atl. 796 (1939). Present act of 1937 (Rev. Stat. (1937) App. A: 8-1 et seq.), similar to the former act, was held to be constitutional, the decision in State v. Newark Milk Co., (supra) controlling. Reck Milk Co. v. Humphreys, 119 N. J. L. 526, 197 Atl. 279 (1938).

the minimum prices to be paid to the producer, the minimum prices to be charged by milk dealers to other milk dealers, processors, subdealers and stores, the minimum prices to be charged by processors to subdealers, the minimum prices to be charged by subdealers to stores, and the minimum prices to be charged the consumer for milk in the several municipalities or markets of this State, under varying conditions, as will best insure a sufficient quantity of fresh, pure and wholesome milk to the inhabitants of this State. The board may take into consideration the various grades of milk produced, the varying percentages of butterfat, plant volume, seasonal production, and other conditions affecting the cost of production, cost of transportation and marketing, and the amount necessary to yield a reasonable return to the producer and to the milk dealer, processor, or subdealer. The term grades as used herein shall be for the purpose of fixing prices only and shall not supersede or abrogate or affect the status of standard or requirement for milk as are or may be established in ordinances of boards of health or other bodies exercising the powers thereof in any municipality. It may, in its discretion, hold a public hearing or hearings in this State and invite producers, consumers, dealers, stores, processors and public health officials in this State to submit such proofs as they may desire.29 30

Sec. App. A: 8-35 provides that no licensee or other person, association, or corporation shall hereafter, contrary to the public interest, operate in any municipality under any mutual or secret agreement, arrangement, combination contract, or common understanding, with any other licensee or person, firm, association, or corporation, whereby the price for fluid milk to be paid to producers in this State is reduced or the price to be paid by dealers, processors, subdealers, stores, or consumers for such milk is decreased in pursuance of such mutual or secret agreement, arrangement, combination contract, or common understanding, and each such contract, arrangement, agreement or understanding is hereby prohibited and declared to be contrary to the public interest and in restraint of trade and commerce, and shall subject the violator or violators to the penalty in this act prescribed: Provided, however, That the right may be granted to deduct a check-off to be paid an association or corporation with consent of producer and approval of the board.

Sec. App. A: 8-36 provides that the board upon its own motion, or upon application may from time to time, upon such notice as it

"Provision similar to this in a prior act (L. 1933, c. 169) empowering board to hold hearings, at its discretion, and without notice to issue a price order, was held by the court not to be in violation of the due process clauses of the Federal and State Constitutions. State v. Newark Milk Co., supra.

The board in setting prices to be paid for milk must establish such prices only after making proper investigation. State v. Newark Milk Co., supra.

shall by rule and regulation determine, alter or modify any official order theretofore made with respect to the price of milk to be paid to producers, by and between milk dealers, subdealers, or processors or stores and the price to be paid by consumers.31

Sec. App. A: 8-28 provides that any aggrieved person may appeal from a general or price order, rule or regulation of the board within 30 days after the effective date of such order by applying to the supreme court for a writ of certiorari.

Sec. App. A: 8-37 provides that it is the intent of the legislature that the instant, whenever that may be, that the handling within the State, by a milk dealer, of milk produced outside of the State, becomes a subject of regulation by the State, in the exercise of its police powers, the restrictions set forth in this act respecting such milk so produced shall apply and the powers conferred by this act on the board shall attach. After any such milk so produced shall have come to rest within the State, any sale, within the State, by a licensed milk dealer, processor, subdealer or store, or a milk dealer required by this act to be licensed, of any such milk purchased from the producer at a price lower than that required to be paid for milk produced within the State, purchased under similar conditions, shall be unlawful and deemed a violation of this act, and for continued violations the board may apply to the court of chancery for its writ of injunction to restrain such further unlawful acts.32

Sec. App. A: 8-26 provides that the board, after hearing, may decline to grant a license or may suspend or revoke a license where certain acts have been committed, including the commission of any act injurious to trade or commerce, or any act which may demoralize the price structure of milk or interfere with an ample supply of milk for the inhabitants of the State and where the licensee has been a party to a combination to fix prices contrary to the provisions of this act.33

Sec. App. A: 8-38 provides that any person violating any of the provisions of the act or orders of board duly issued is subject to payment of fine of not more than $50 for the first offense and not more than $200 for second and subsequent offenses.

"On hearing to review order revising prior price fixing order presumption arises that prior order was founded on investigation and proof. Supplee-WillsJones Milk Co. v. Duryee, 116 N. J. L. 75, 181 Atl. 908 (1935).

"Similar provision in former act (L. 1933, c. 169) prohibiting the sale in New Jersey of milk purchased from out-of-state producers at prices lower than those paid local producers was held by the court to be unconstitutional. State v. Newark Milk Co., supra.

Refusal of board to renew license because of violation of price fixing orders was held justified. Reck Milk Co. v. Humphreys, 119 N. J. L. 526, 197 Atl. 279 (1938).

23 Selling to the United States government at prices lower than those fixed was held to be a violation of the act. Paterson Milk & Cream Co. v. Milk Control Board, 118 N. J. L. 383, 192 Atl. 838 (1937).

210235°-40-vol. 2-32

Sec. App. A: 8-40 empowers the district courts and courts of common pleas, upon filing of a verified complaint alleging violation of the act, to issue process in the nature of summons, and the court shall proceed in a summary manner without a jury to hear testimony and give judgment without the filing of any pleadings. If judgment is entered for board for recovery of penalty and costs and defendant refuse or neglect to pay, defendant may be committed to the county jail for any period not exceeding 100 days.

Sec. App. A: 8-43 provides that the board may file a bill for an injunction in the court of chancery in county where violations are occurring, restraining persons habitually violating provisions of the act or orders issued.34

NEW YORK

Agriculture and Markets (McKinney)
Milk Control

Section 254 provides that the commissioner of agriculture has power to supervise and regulate the entire milk industry of the State.

Section 2581 provides that incorporated producers' associations operated under a cooperative corporations law may establish producers bargaining agencies for the various production areas of the State designated by the commissioner of agriculture who appoints a director of the division of milk control.

Section 258m provides that upon the petition of a producers' bargaining agency of the production area supplying a marketing area,

34 The board may obtain an injunction to restrain persons violating provisions of the act or orders promulgated thereunder. State v. Newark Milk Co., supra. 25 Prior milk control acts held constitutional: Nebba v. New York, 291 U. S. 502, 54 Sup. Ct. 505, 78 L. Ed. 940 (1934); Royce v. Rosasco, 159 Misc. 236, 287 N. Y. S. 692 (1936).

Price fixing orders valid: Hegeman Farms Corp. v. Baldwin, 293 U. S. 163, 55 Sup. Ct. 7, 79 L. Ed. 259 (1934); Muller Dairies, Inc., v. Baldwin, 242 App. Div. 296, 274 N. Y. S. 975 (1934); Ten Eyck v. Eastern Farm Products, 290 N. Y. Supp. 477, 160 Misc. 404 (1936).

Provision as to out-of-state milk held unconstitutional: Baldwin v. Seelig, 294 U. S. 511, 55 Sup. Ct. 497, 79 L. Ed. 1032 (1935).

Section establishing price differential between dealers as to time of entry into buisness held unconstitutional. Mayflower Farms v. Ten Eyck, 297 U. S. 266, 56 Sup. Ct. 457, 80 L. Ed. 675 (1936).

Price differential between dealers with well established trade names and other dealers held constitutional. See Borden Co. v. Ten Eyck, 297 U. S. 25, 56 Sup. Ct. 453, 80 L. Ed. 669 (1936). See Borden Co., Inc., v. Baldwin, 293 U. S 194, 55 Sup. Ct. 187, 79 L. Ed. 281 (1934).

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