State Ex Rel. State Board of Milk Control v. Newark Milk Co.

Case, J.

(Dissenting in part.)

I agree that the milk industry is affected with a public interest, that a reasonable measure of control is quite within the province of the legislature or of a board delegated by the legislature with adequate and sufficiently defined authority, and that jurisdiction over the novel field of litigation so created may be vested in the court of chancery.

The milk control statute requires, in article VI, section 1, subdivision (h), that every licensee shall make reports to the board of all matters on account of which a record is required to be kept; and the bill of complaint alleges,

inter

alia, that the defendant has willfully failed and neglected to file a certain report required by official order No. 8. The prayer seeks a writ enjoining the defendant against violating the board’s orders. The legality of the statutory provision, of the mentioned order and of the relief sought with respect to the order seemed to be established. Since the bill of complaint was good in at least this respect, it is unnecessary to seek further reason for the court’s refusal to strike the bill. Whether the restraint

pendente

Hie, which included an injunction against selling at less than the minimum price fixed by the board, is grounded in a valid order is less easy of determination. The statute gives the board power to investigate all matters relating to the production and sale of milk and to subpoena witnesses and records for the purpose of obtaining the information requisite to carrying out the provisions of the act. Further, and more specifically, the statute provides, article VII, section 1, that "the board may ascertain, determine and fix, by such investigations and proof as the emergency permits, the prices to be paid to the producer

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and to be charged to the consumer * * This language anticipates, as it seems to me, that the price will have a foundation in some kind of proof. Indeed the bill recites that “the board did conduct an investigation and it obtained proof * * * and after careful consideration of the facts and proofs acquired in said investigation, determined and fixed the prices * * But there is no showing of what the investigation consisted or what the facts were; and a recital in a bill can scarcely take the place of proof in furnishing ground for the issue of an injunction. The depositions before us, so far as I can find, do not even show that there was an investigation or that there were facts or proofs adduced.

I have not been satisfied that in point of fact a record has been made, out of which a price may be deduced, or that in point of law a price may be fixed without such a record to justify it. In the face of that legal doubt a preliminary injunction should not, under our cases, issue.

Citizens Coach Co.

v.

Camden Horse Railroad Co., 29 N. J. Eq. 299; Kellett v. Local No. 274

&c.,

114 N. J. Eq. 107.

My conclusion is that the decree below should be affirmed, in its refusal to strike but so modified as to omit the temporary restraint against selling for less than the fixed price. The whole adjudication, under the case presented, should have awaited final hearing.

I am authorized to say that Mr. Justice Parker and Judge Hetfield agree with this view.

As to holding the bill—

For affirmance

— Parker, Case, Hetfield, JJ. 3.

On preliminary restraint — ■

For modification

— The Chief-Justice, Lloyd Bodine, Dohges, Heher, Perskie, Yah Buskirk, Kays; Dear, Wells, JJ. 10.

For reversal

— Parker, Case, Hetfield, JJ. 3.