The opinion
BAND, C. J.
(dissenting). It seems to me that the only question necessary for decision in this case is whether the state or an agency of the state can lawfully take away from one class of persons who produce and sell the highest grade of milk, which is conceded to be Grade “A” raw milk, a part of the moneys received from the sale thereof and, without their consent, pay the moneys or any part thereof to another class of persons who produce and sell, for a less price, milk of an inferior grade or quality which, under existing law, cannot be marketed until pasteurized.
This is precisely what the plaintiffs in this case are complaining of and for which they are now seeking injunctive relief.
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Article I, section 18, of the constitution of this state, provides that:
“Private property shall not be taken for public use, nor the particular services of any man be demanded, without just compensation; * *
In
Beck v. Patterson,
21 F. (2d) 72, District Judge Bean, a former member of this court, said:
“It is a fundamental principle of our government that no man shall be involuntarily deprived of his property, except for a public purpose, and therefore a legislative act which takes or undertakes to authorize the taking of one person’s property for the benefit of another is not a law, but an arbitrary decree whereby the property of one citizen may be transferred to another, and is beyond the power of the legislature. (Citing authorities.) ‘To lay with one hand the power of the government on the property of the citizen, and with the other to bestow it upon favorite individuals, to aid private enterprises and build up private fortunes, is none the less a robbery because it is done under the forms of law.’ ”
It has always been conceded by the bench and bar of this state that private property, under our constitution, cannot be taken for a private use and that the legislature has no power to enact any legislation authorizing that to be done. Yet that is the very thing against which the plaintiffs now complain, and it is being done under the supposed authority of the Milk Control Board acting as an agency of the state. This action upon the part of the board, in my opinion, is not a proper exercise of the police power and cannot be sustained without violating the constitution of this state. This, I think, renders unnecessary any consideration by the court at this time of the validity of the
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Milk Control Act, or any of its provisions, except in respect to the matter above stated.
For these reasons, the decree of the lower court should be reversed and a decree should be entered granting to the plaintiffs the injunctive relief prayed for in their complaint.
Bean and Rossman, JJ., concur.