U.S. Supreme Court NEBBIA v. PEOPLE OF STATE OF NEW YORK, 291 U.S. 502 (1934)

291 U.S. 502

NEBBIA v. PEOPLE OF STATE OF NEW YORK. No. 531. Argued Dec. 4, 5, 1933. Decided March 5, 1934.

Appeal from the County Court of Monroe County, New York.[ Nebbia v. People of State of New York 291 U.S. 502 (1934) ]

[Page 291 U.S. 502, 515]

Mr. Justice ROBERTS delivered the opinion of the Court.

The Legislature of New York established by chapter 158 of the Laws of 1933, a Milk Control Board with power, among other things to 'fix minimum and maximum ... retail prices to be charged by ... stores to consumers for consumption off the premises where sold.' Agriculture and Markets Law N.Y. (Consol. Laws, c. 69) 312. The board fixed nine cents as the price to be charged by a store for a quart of milk. Nebbia, the proprietor of a grocery store in Rochester, sold two quarts and a 5-cent loaf of bread for 18 cents; and was convicted for violating the board's order. At his trial he asserted the statute and order contravene the equal protection clause and the due process clause of the Fourteenth Amendment, and renewed the contention in successive appeals to the county court and Court of Appeals. Both overruled his claim and affirmed the conviction. [Footnote 1]

[Page 291 U.S. 502, 518]

shed. So long as the surplus burden is unequally distributed the pressure to market surplus milk in fluid form will be a serious disturbing factor. The fact that the larger distributors find it necessary to carry large quantities of surplus milk, while the smaller distributors do not, leads to price-cutting and other forms of destructive competition. Smaller distributors, who take no responsibility for the surplus, by purchasing their milk at the blended prices (i.e., an average between the price paid the producer for milk for sale as fluid milk, and the lower surplus milk price paid by the larger organizations) can undersell the larger distributors. Indulgence in this price-cutting often compels the larger dealer to cut the price to his own and the producer's detriment.

Various remedies were suggested, amongst them united action by producers, the fixing of minimum prices for milk and cream by state authority, and the imposition of certain graded taxes on milk dealers proportioned so as to equalize the cost of milk and cream to all dealers and so remove the cause of price-cutting.

The Legislature adopted chapter 158 as a method of correcting the evils, which the report of the committee showed could not be expected to right themselves through the ordinary play of the forces of supply and demand, owing to the peculiar and uncontrollable factors affecting the industry. The provisions of the statute are summarized in the margin. [Footnote 2]

[Page 291 U.S. 502, 522]

eral codification known as the Agriculture and Markets Law. [Footnote 5] A perusal of these statutes discloses that the milk industry has been progressively subjected to a larger measure of control. [Footnote 6] The producer or dairy farmer is in certain circumstances liable to have his herd quarantined against bovine tuberculosis; is limited in the importation of dairy cattle to those free from Bang's disease; is subject to rules governing the care and feeding of his cows and the care of the milk produced, the condition and surroundings of his barns and buildings used for production of milk, the utensils used, and the persons employed in milking (sections 46, 47, 55, 72-88). Proprietors of milk gathering stations or processing plants are subject to regulation (section 54), and persons in charge must operate under license and give bond to comply with the law and regulations; must keep records, pay promptly for milk purchased, abstain from false or misleading statements and from combinations to fix prices (sections 57, 57- a, 252). In addition there is a large volume of legislation intended to promote cleanliness and fair trade practices, affecting all who are engaged in the industry. [Footnote 7] The challenged amend-

[Page 291 U.S. 502, 523]

ment of 1933 carried regulation much farther than the prior enactments. Appellant insists that it went beyond the limits fixed by the Constitution.

Under our form of government the use of property and the making of contracts are normally matters of private and not of public concern. The general rule is that both shall be free of governmental interference. But neither property rights8 nor contract rights9 are absolute; for government cannot exist if the citizen may at will use his property to the detriment of his fellows, or exercise his freedom of contract to work them harm. Equally fundamental with the private right is that of the public to regulate it in the common interest. As Chief Justice Marshall said, speaking specifically of inspection laws, such laws form 'a portion of that immense mass of legislation which embraces everything within the territory of a state, ... all which can be most advantageously exercised by the states themselves. Inspection laws, quarantine laws, health laws of every description, as well as laws for regulating the internal commerce of a state, ... are component parts of this mass.' [Footnote 10]

[Page 291 U.S. 502, 524]

That all those powers which relate to merely municipal legislation, or what may, perhaps, more properly be called internal police, are not thus surrendered or restrained; and that, consequently, in relation to these, the authority of a state is complete, unqualified, and exclusive.' [Footnote 11]

And Chief Justice Taney said upon the same subject: 'But what are the police powers of a State? They are nothing more or less than the powers of government inherent in every sovereignty to the extent of its dominions. And whether a State passes a quarantine law, or a law to punish offenses, or to establish courts of justice, or requiring certain instruments to be recorded, or to regulate commerce within its own limits, in every case it exercises the same power; that is to say, the power of sovereignty, the power to govern men and things within the limits of its dominion. It is by virtue of this power that it legislates; and its authority to make regulations of commerce is as absolute as its power to pass health laws, except in so far as it has been restricted by the constitution of the United States.' [Footnote 12]

[Page 291 U.S. 502, 525]

imagined which will not in some respect, however slight, affect the public; no exercise of the legislative prerogative to regulate the conduct of the citizen which will not to some extent abridge his liberty or affect his property. But subject only to constitutional restraint the private right must yield to the public need.

The Fifth Amendment, in the field of federal activity,14 and the Fourteenth, as respects state action,15 do not prohibit governmental regulation for the public welfare. They merely condition the exertion of the admitted power, by securing that the end shall be accomplished by methods consistent with due process. And the guaranty of due process, as has often been held, demands only that the law shall not be unreasonable, arbitrary, or capricious, and that the means selected shall have a real and substantial relation to the object sought to be attained. It results that a regulation valid for one sort of business, or in given circumstances, may be invalid for another sort, or for the same business under other circumstances, because the reasonableness of each regulation depends upon the relevant facts.

The reports of our decisions abound with cases in which the citizen, individual or corporate, has vainly invoked the Fourteenth Amendment in resistance to necessary and appropriate exertion of the police power.

The court has repeatedly sustained curtailment of enjoyment of private property, in the public interest. The owner's rights may be subordinated to the needs of other private owners whose pursuits are vital to the paramount interests of the community. [Footnote 16] The state may control the

[Page 291 U.S. 502, 526]

use of property in various ways; may prohibit advertising bill boards except of a prescribed size and location,17 or their use for certain kinds of advertising;18 may in certain circumstances authorize encroachments by party walls in cities;19 may fix the height of buildings, the character of materials, and methods of construction, the adjoining area which must be left open, and may exclude from residential sections offensive trades, industries and structures likely injuriously to affect the public health or safety;20 or may establish zones within which certain types of buildings or businesses are permitted and others excluded. [Footnote 21] And although the Fourteenth Amendment extends protection to aliens as well as citizens, 22 a state may for adequate reasons of policy exclude aliens altogether from the use and occupancy of land. [Footnote 23]

Laws passed for the suppression of immorality, in the interest of health, to secure fair trade practices, and to safeguard the interests of depositors in banks, have been found consistent with due process. [Footnote 24] These measures not

[Page 291 U.S. 502, 527]

only affected the use of private property, but also interfered with the right of private contract. Other instances are numerous where valid regulation has restricted the right of contract, while less directly affecting property rights. [Footnote 25]

[Page 291 U.S. 502, 528]

pleases. Certain kinds of business may be prohibited;26 and the right to conduct a business, or to pursue a calling, may be conditioned. [Footnote 27] Regulation of a business to prevent waste of the state's resources may be justified. [Footnote 28] And statutes prescribing the terms upon which those conducting certain businesses may contract, or imposing terms if they do enter into agreements, are within the state's competency. [Footnote 29]

[Page 291 U.S. 502, 529]

Legislation concerning sales of goods, and incidentally affecting prices, has repeatedly been held valid. In this class fall laws forbidding unfair competition by the charging of lower prices in one locality than those exacted in another,30 by giving trade inducements to purchasers,31 and by other forms of price discrimination. [Footnote 32] The public policy with respect to free competition has engendered state and federal statutes prohibiting monopolies, 33 which have been upheld. On the other hand, where the policy of the state dictated that a monopoly should be granted, statutes having that effect have been held inoffensive to the constitutional guarantees. [Footnote 34] Moreover, the state or a municipality may itself enter into business in competition with private proprietors, and thus effec-

[Page 291 U.S. 502, 530]

tively although indirectly control the prices charged by them. [Footnote 35]

[Page 291 U.S. 502, 533]

the expression, saying: 'Property does become clothed with a public interest when used in a manner to make it of public consequence, and affect the community at large.' Page 126 of 94 U.S. Thus understood, 'affected with a public interest' is the equivalent of 'subject to the exercise of the police power'; and it is plain that nothing more was intended by the expression. The court had been at pains to define that power (pages 124, 125 of 94 U.S.) ending its discussion in these words: 'From this it is apparent that, down to the time of the adoption of the Fourteenth Amendment, it was not supposed that statutes regulating the use, or even the price of the use, of private property necessarily deprived an owner of his property without due process of law. Under some circumstances they may, but not under all. The amendment does not change the law in this particular; it simply prevents the States from doing that which will operate as such a deprivation.' [Footnote 36]

[Page 291 U.S. 502, 537]

not met because the laws were found arbitrary in their operation and effect. [Footnote 39] But there can be no doubt that upon proper occasion and by appropriate measures the state may regulate a business in any of its aspects, including the prices to be charged for the products or commodities it sells.

[Page 291 U.S. 502, 538]

ment, that every possible presumption is in favor of its validity, and that though the court may hold views inconsistent with the wisdom of the law, it may not be annulled unless palpably in excess of legislative power. 40

The lawmaking bodies have in the past endeavored to promote free competition by laws aimed at trusts and monopolies. The consequent interference with private property and freedom of contract has not availed with the courts to set these enactments aside as denying due process. [Footnote 41] Where the public interest was deemed to require the fixing of minimum prices, that expedient has been sustained. [Footnote 42] If the lawmaking body within its sphere of government concludes that the conditions or practices in an industry make unrestricted competition an inadequate safeguard of the consumer's interests,43 produce waste harmful to the public, threaten ultimately to cut off the supply of a commodity needed by the public, or portend the destruction of the industry itself, appropriate statutes passed in an honest effort to correct the threatened consequences may not be set aside because the regulation adopted fixes prices reasonably deemed by the Legislature to be fair to those engaged in the industry and to the consuming public. And this is especially so where, as here, the economic maladjustment is one of price, which threatens harm to the producer at one end of the series and the consumer at the other. The Constitution does

[Page 291 U.S. 502, 559]

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. Footnotes

Footnote 1 People v. Nebbia, 262 N.Y. 259, 186 N.E. 694.

Footnote 2 Chapter 158 of the Laws of 1933 added a new article (numbered 25) to the Agriculture and Markets Law. The reasons for the enactment are set forth in the first section (section 300). So far as material they are: That unhealthful, unfair, unjust, destructive, demoralizing, and uneconomic trade practices exist in the production, sale, and distribution of milk and milk products, whereby the dairy industry in the state and the constant supply of pure milk to inhabitants of the state are imperiled; these conditions are a menace to the public health, welfare and reasonable comfort; the production and distribution of milk is a paramount industry upon which the prosperity of

the state in a great measure depends; existing economic conditions have largely destroyed the purchasing power of milk producers for industrial products, have broken down the orderly production and marketing of milk, and have seriously impaired the agricultural assets supporting the credit structure of the state and its local governmental subdivisions. The danger to public health and welfare consequent upon these conditions is declared to be immediate and to require public supervision and control of the industry to enforce proper standards of production, sanitation and marketing.

The law then (section 301) defines the terms used; declaring, inter alia, that 'milk dealer' means any person who purchases or handles milk within the state, for sale in the state, or sells milk within the state except when consumed on the premises where sold; and includes within the definition of 'store' a grocery store.

By section 302 a state Milk Control Board is established; and by section 303 general power is conferred upon that body to supervise and regulate the entire milk industry of the state, subject to existing provisions of the public health law, the public service law, the state sanitary code, and local health ordinances and regulations; to act as arbitrator or mediator in controversies arising between producers and dealers, or groups within those classes, and to exercise certain special powers to which reference will be made.

The board is authorized to promulgate orders and rules which are to have the force of law (section 304); to make investigations (section 305); to enter and inspect premises in which any branch of the industry is conducted, and examine the books, papers and records of any person concerned in the industry (section 306); to license all milk dealers and suspend or revoke licenses for specified causes, its action in these respects being subject to review by certiorari (section 308), and to require licensees to keep records (section 309) and to make reports ( section 310).

A violation of any provision of article 25 or of any lawful order of the board is made a misdemeanor (section 307).

By section 312 it is enacted (a): 'The board shall ascertain by such investigations and proofs as the emergency permits, what prices for milk in the several localities and markets of the state, and under varying conditions, will best protect the milk industry in the state and insure a sufficient quantity of pure and wholesome milk ... and be most in the public interest. The board shall take into considera-

tion all conditions affecting the milk industry including the amount necessary to yield a reasonable return to the producer and to the milk dealer.' (b) After such investigation the board shall by official order fix minimum and maximum wholesale and retail prices to be charged by milk dealers to consumers, by milk dealers to stores for consumption on the premises or for resale to consumers, and by stores to consumers for consumption off the premises where sold. It is declared (c) that the intent of the law is that the benefit of any advance in price granted to dealers shall be passed on to the producer, and if the board, after due hearing, finds this has not been done, the dealer's license may be revoked, and the dealer may be subjected to the penalties mentioned in the Act. The board may (d) after investigation fix the prices to be paid by dealers to producers for the various grades and classes of milk.

Subsection (e), 312, on which the prosecution in the present case is founded, is quoted in the text.

Alterations may be made in existing orders after hearing of the interested parties section 312(f) and orders made are subject to review on certiorari. The board (section 319) is to continue with all the powers and duties specified until March 31, 1934, at which date it is to be deemed abolished. The Act contains further provisions not material to the present controversy.

Footnote 3 Laws 1862, chap. 467.

Footnote 4 Laws 1893, chap. 338; Laws 1909, chap. 9, Consol. Laws chap. 1.

Footnote 5 Laws 1927, chap. 207, Cahill's Consolidated Laws of New York 1930, chap. 1 (Consol. Laws N.Y. c. 69).

Footnote 6 Many of these regulations have been unsuccessfully challenged on constitutional grounds. See People v. Cipperly, 101 N.Y. 634, 4 N.E. 107; People v. Hill, 44 Hun, 472; People v. West, 106 N.Y. 293, 12 N.E. 610, 60 Am.Rep. 452; People v. Kibler, 106 N.Y. 321, 12 N.E. 795; People v. Hills, 64 App.Div. 584, 72 N.Y.S. 340; People v. Bowen, 182 N.Y. 1, 74 N.E. 489; Lieberman v. Van De Carr, 199 U.S. 552, 26 S.Ct. 144; St. John v. New York, 201 U.S. 633, 26 S.Ct. 554; People v. Koster, 121 App.Div. 852, 106 N.Y.S. 793; People v. Abramson, 208 N.Y. 138, 101 N.E. 849; People v. Frudenberg, 209 N.Y. 218, 103 N.E. 166; People v. Beakes Dairy Co., 222 N.Y. 416, 119 N.E. 115, 3 A.L.R. 1260; People v. Teuscher, 248 N.Y. 454, 162 N.E. 484; People v. Perretta, 253 N.Y. 305, 171 N.E. 72, 84 A.L.R. 636; People v. Ryan, 230 App.Div. 252, 243 N.Y.S. 644; Mintz v. Baldwin, 289 U.S. 346, 53 S.Ct. 611.

Footnote 7 See Cahill's Consolidated Laws of New York 1930, and Supplements to and including 1933: chapter 21, 270-274 (see General Business Law N.Y. ( Consol. Laws, c. 20)); chapter 41, 435, 438, 1740, 1764, 2350-2357 (see Penal Law N.Y. (Consol. Laws, c. 40)); chapter 46, 6-a, 20, 21 (see Public Health Law N.Y. (Consol. Laws, c. 45)).

Footnote 8 Munn v. Illinois, 94 U.S. 113, 124, 125 S.; Orient Ins. Co. v. Daggs, 172 U.S. 557, 556, 19 S.Ct. 281; Northern Securities Co. v. United States, 193 U.S. 197, 351, 24 S.Ct. 436; and see the cases cited in notes 16-23, infra.

Footnote 9 Allgeyer v. Louisiana, 165 U.S. 578, 591, 17 S.Ct. 427; Atlantic Coast Line R. Co. v. Riverside Mills, 219 U.S. 186, 202, 31 S.Ct. 164, 31 L.R.A.(N.S.) 7; Chicago, B. & Q.R. Co. v. McGuire, 219 U.S. 549, 567, 31 S.Ct. 259; Stephenson v. Binford, 287 U.S. 251, 274, 53 S.Ct. 181, 87 A.L.R. 721.

Footnote 10 Gibbons v. Ogden, 9 Wheat. 1, 203.

Footnote 11 City of New York v. Miln, 11 Pet. 102, 139.

Footnote 12 License Cases, 5 How. 504, 583.

Footnote 13 United States v. De Witt, 9 Wall. 41; Gloucester Ferry Co. v. Pennsylvania, 114 U.S. 196, 215, 5 S.Ct. 826.

Footnote 14 Addyston Pipe & Steel Co. v. United States, 175 U.S. 211, 228, 229 S., 20 S.Ct. 96.

Footnote 15 Barbier v. Connolly, 113 U.S. 27, 31, 5 S.Ct. 357; Chicago, B. & Q.R. Co. v. Illinois ex rel. Drainage Com'rs, 200 U.S. 561, 592, 26 S.Ct. 341-50 L.Ed. 596, 4 Ann.Cas. 1175.

Footnote 16 Clark v. Nash, , 25 S.Ct. 676, 4 Ann. Cas. 1171; Strickley v. Highland Boy Gold Mining Co., 200 U.S. 527, 26 S. Ct. 301, 4 Ann.Cas. 1174.

Footnote 17 Cusack Co. v. City of Chicago, 242 U.S. 526, 37 S.Ct. 190, L.R.A. 1918A, 136, Ann. Cas. 1917C, 594; St. Louis Poster Advertising Co. v. St. Louis, 249 U.S. 269, 39 S.Ct. 274.

Footnote 18 Packer Corp. v. Utah, 285 U.S. 105, 52 S.Ct. 273, 79 A.L.R. 546.

Footnote 19 Jackman v. Rosenbaum Co., 260 U.S. 22, 43 S.Ct. 9.

Footnote 20 Fischer v. St. Louis, 194 U.S. 361, 24 S.Ct. 673; Welch v. Swasey, 214 U.S. 91, 29 S.Ct. 567; Hadacheck v. Sebastian, 239 U.S. 394, 36 S.Ct. 143, Ann. Cas. 1917B, 927; Reinman v. Little Rock, 237 U.S. 171, 35 S.Ct. 511.

Footnote 21 Euclid v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114, 54 A.L.R. 1016; Zahn v. Board of Public Works, 274 U.S. 325, 47 S.Ct. 594; Gorieb v. Fox, 274 U.S. 603, 47 S.Ct. 675, 53 A.L.R. 1210.

Footnote 22 Yick Wo v. Hopkins, 118 U.S. 356, 369, 6 S.Ct. 1064.

Footnote 23 Terrace v. Thompson, , 44 S.Ct. 15; Webb v. O'Brien, 263 U.S. 313, 44 S.Ct. 112.

Footnote 24 Forbidding transmission of lottery tickets, Lottery Case, 188 U.S. 321, 23 S.Ct. 321; transportation of prize fight films, Weber v. Freed, 239 U.S. 325, 36 S.Ct. 131, Ann. Cas. 1916C, 317; the shipment of adulterated food, Hipolite Egg Co. v. United States, 220 U.S. 45, 31 S.Ct. 364; transportation of women for immoral purposes, Hoke v. United States, 227 U.S. 308, 33 S.Ct. 281, 43 L.R.A.(N.S.) 906, Ann. Cas. 1913E, 905; Caminetti v. United States, 242 U.S. 470, 37 S.Ct. 192, L.R.A. 1917F, 502, Ann. Cas. 1917B, 1168; transportation of intoxicating liquor, Clark Distilling Co. v. Western Maryland R. Co., 242 U.S. 311, 37 S.Ct. 180, L.R.A. 1917B, 1218, Ann. Cas. 1917B, 845; requiring the public weighing of grain, Merchants Exchange v. Missouri, 248 U.S. 365, 39 S.Ct. 114; regulating the size and weight of loaves of bread, Schmidinger v. Chicago, 226 U.S. 578, 33 S.Ct. 182; Petersen Baking Co. v. Bryan, 290 U.S. 570, 54 S.Ct. 277, decided Jan. 8, 1934; ( continued on p. 527)

regulating the size and character of packages in which goods are sold, Armour & Co. v. North Dakota, 240 U.S. 510, 36 S.Ct. 440, Ann. Cas. 1916D, 548; regulating sales in bulk of a stock in trade, Lemieux v. Young, 211 U.S. 489, 29 S.Ct. 174; Kidd, Dater & Price Co. v. Musselman Grocer Co., 217 U.S. 461, 30 S.Ct. 606; sales of stocks and bonds, Hall v. Geiger-Jones Co., 242 U.S. 539, 37 S.Ct. 217, L.R.A. 1917F, 514, Ann. Cas. 1917C, 643; Merrick v. Halsey & Co., 242 U.S. 568, 37 S.Ct. 227; requiring fluid milk offered for sale to be tuberculin tested, Adams v. Milwaukee, 228 U.S. 572, 33 S.Ct. 610; regulating sales of grain by actual weight, and abrogating exchange rules to the contrary, House v. Mayes, 219 U.S. 270, 31 S.Ct. 234; subjecting state banks to assessments for a state depositors' guarantee fund, Noble State Bank v. Haskell, 219 U.S. 104, 31 S.Ct. 186, 32 L.R.A.(N.S.) 1062, Ann. Cas. 1912A, 487.

Footnote 25 Prescribing hours of labor in particular occupations, Holden v. Hardy, 169 U.S. 366, 18 S.Ct. 383; Baltimore & O.R.R. Co. v. I.C.C., 221 U.S. 612, 31 S.Ct. 621; Bunting v. Oregon, 243 U.S. 426, 37 S.Ct. 435, Ann. Cas. 1918A, 1043; prohibiting child labor, Sturges & Burn v. Beauchamp, 231 U.S. 320, 34 S.Ct. 60, L.R.A. 1915A, 1196; forbidding night work by women, Radice v. New York, 264 U.S. 292, 44 S.Ct. 325; reducing hours of labor for women, Muller v. Oregon, 208 U.S. 412, 28 S.Ct. 324, 13 Ann.Cas. 957; Riley v. Massachusetts, 232 U.S. 671, 34 S.Ct. 469; Miller v. Wilson, 236 U.S. 373, 35 S.Ct. 342, L.R.A. 1915F, 829; fixing the time for payment of seamen's wages, Patterson v. The Eudora, 190 U.S. 169, 23 S.Ct. 821; Strathearn S.S. Co. v. Dillon, 252 U.S. 348, 40 S.Ct. 350; of wages of railroad employees, St. Louis, I.M. & St. P. Ry. Co. v. Paul, 173 U.S. 404, 19 S.Ct. 419; Erie R.R. Co. v. Williams, 233 U.S. 685, 34 S.Ct. 761, 51 L.R.A.(N.S.) 1097; regulating the redemption of store orders issued for wages, Knoxville Iron Co. v. Harbison, 183 U.S. 13, 22 S. Ct. 1; Keokee Consolidated Coke Co. v. Taylor, 234 U.S. 224, 34 S.Ct. 856; regulating the assignment of wages, Mutual Loan Co. v. Martell, 222 U.S. 225, 32 S.Ct. 74, Ann. Cas. 1913B, 529; requiring payment for coal mined on a fixed basis other than that usually practiced, McLean v. Arkansas, 211 U.S. 539, 29 S.Ct. 206; Rail & River Coal Co. v. Yaple, 236 U.S. 338, 35 S.Ct. 359; establishing a system of compulsory workmen's compensation, New York Central R.R. Co. v. White, 243 U.S. 188, 3 S.Ct. 247, L. R.A. 1917D, 1, Ann. Cas. 1917D, 629; Mountain Timber Co. v. Washington, 243 U.S. 219, 37 S.Ct. 260, Ann. Cas. 1917D, 642.

Footnote 26 Sales of stock or grain on margin, Booth v. Illinois, 184 U.S. 425, 22 S.Ct. 425; Brodnax v. Missouri, 219 U.S. 285, 31 S.Ct. 238; Otis v. Parker, 187 U.S. 606, 23 S.Ct. 168; the conduct of pool and billiard rooms by aliens, State of Ohio ex rel. Clarke v. Deckebach, 274 U.S. 392, 47 S.Ct. 630; the conduct of billiard and pool rooms by anyone, Murphy v. California, 225 U.S. 623, 32 S.Ct. 697, 41 L.R.A.(N.S.) 153; the sale of liquor, Mugler v. Kansas, 123 U.S. 623, 8 S.Ct. 273; the business of soliciting claims by one not an attorney McCloskey v. Tobin, 252 U.S. 107, 40 S.Ct. 306; manufacture or sale of oleomargarine, Powell v. Pennsylvania, 127 U.S. 678, 8 S.Ct. 992, 1257; hawking and peddling of drugs or medicines, Baccus v. Louisiana, 232 U.S. 334, 34 S.Ct. 439; forbidding any other than a corporation to engage in the business of receiving deposits, Dillingham v. McLaughlin, 264 U.S. 370, 44 S.Ct. 362, or any other than corporations to do a banking business, Shallenberger v. First State Bank, 219 U.S. 114, 31 S.Ct. 189.

Footnote 27 Physicians, Dent v. West Virginia, 129 U.S. 114, 9 S.Ct. 231; Watson v. Maryland, 218 U.S. 173, 30 S.Ct. 644; Crane v. Johnson, 242 U.S. 339, 37 S.Ct. 176, Ann. Cas. 1917B, 796; Hayman v. Galveston, 273 U.S. 414, 47 S.Ct. 363; dentists, Douglas v. Noble, 261 U.S. 165, 43 S.Ct. 303; Graves v. Minnesota, 272 U.S. 425, 47 S.Ct. 122; employment agencies, Brazee v. Michigan, 241 U.S. 340, 36 S.Ct. 561, Ann. Cas. 1917C, 522; public weighers of grain, Merchants' Exchange v. Missouri, 248 U.S. 365, 39 S.Ct. 114; real estate brokers, Bratton v. Chandler, 260 U.S. 110, 43 S.Ct. 43; insurance agents, La Tourette v. McMaster, 248 U.S. 465, 39 S.Ct. 160; insurance companies, German Alliance Insurance Co. v. Lewis, 233 U.S. 389, 34 S.Ct. 612, L.R.A. 1915C, 1189; the sale of cigarettes, Gundling v. Chicago, 177 U.S. 183, 20 S.Ct. 633; the sale of spectacles, Roschen v. Ward, 279 U.S. 337, 49 S.Ct. 336; private detectives, Lehon v. City of Atlanta, 242 U.S. 53, 37 S.Ct. 70; grain brokers, Board of Trade of City of Chicago v. Olsen, 262 U.S. 1, 43 S.Ct. 470; business of renting automobiles to be used by the renter upon the public streets, Hodge Drive-It-Yourself Co. v. Cincinnati, 284 U.S. 335, 52 S.Ct. 144.

Footnote 28 Champlin Refining Co. v. Corporation Comm., 286 U.S. 210, 52 S.Ct. 559, 86 A.L.R. 403. Compare Bandini Petroleum Co. v. Superior Court, Los Angeles County, Cal., 284 U.S. 8, 21, 22 S., 52 S.Ct. 103.

Footnote 29 Contracts of carriage, Atlantic Coast Line v. Riverside Mills, , 31 S.Ct. 164, 31 L.R.A.(N.S.) 7; agreements substituting relief or insurance payments for actions for negligence, Chicago, B. & Q.R.R. Co. v. McGuire, 219 U.S. 549, 31 S.Ct. 259; affecting contracts of insurance, Orient Ins. Co. v. Daggs, 172 U.S. 557, 19 S.Ct. 281; Whitfield v. Aetna Life Ins. Co., 205 U.S. 489, 27 S.Ct. 578; National Union Fire Ins. Co. v. Wanberg, 260 U.S. 71, 43 S.Ct. 32; Hardware Dealers Mut. F.I. Co. v. Glidden Co., 284 U.S. 151, 52 S.Ct. 69; (continued on p. 529)

contracts for sale of real estate, Selover, Bates & Co. v. Walsh, 226 U.S. 112, 33 S.Ct. 69; contracts for sale of farm machinery, Advance-Rumely Co. v. Jackson, 287 U.S. 283, 53 S.Ct. 133, 87 A.L.R. 285; bonds for performance of building contracts, Hartford Accident & Indemnity Co. v. Nelson Mfg. Co., 291 U.S. 352, 54 S.Ct. 392, decided February 5, 1934.

Footnote 30 Central Lumber Co. v. South Dakota, 226 U.S. 157, 33 S.Ct. 66.

Footnote 31 Rast v. Van Deman & Lewis, 240 U.S. 342, 36 S.Ct. 370, L.R.A. 1917A, 421, Ann. Cas. 1917B, 455.

Footnote 32 Van Camp & Sons v. American Can Co., 278 U.S. 245, 49 S.Ct. 112, 60 A.L.R. 1060.

Footnote 33 State statutes: Smiley v. Kansas, 196 U.S. 447, 25 S.Ct. 289; National Cotton Oil Co. v. Texas, 197 U.S. 115, 25 S.Ct. 379; Waters-Pierce Oil Co. v. Texas (No. 1), 212 U.S. 86, 29 S.Ct. 220; Hammond Packing Co. v. Arkansas, 212 U.S. 322, 29 S.Ct. 370, 15 Ann.Cas. 645; Grenada Lumber Co. v. Mississippi, 217 U.S. 433, 30 S.Ct. 535; International Harvester Co. v. Missouri, 234 U.S. 199, 34 S.Ct. 859, 52 L.R.A.(N.S.) 525.

Federal statutes: United States v. Joint Traffic Association, 171 U.S. 505, 559, 571 S.-573, 19 S.Ct. 25; Addyston Pipe & Steel Co. v. United States, 175 U.S. 211, 228, 229 S., 20 S.Ct. 96; Northern Securities Co. v. United States, 193 U.S. 197, 332, 24 S.Ct. 436; United Shoe Mach. Corp. v. United States, , 462-464, 42 S. Ct. 363.

Footnote 34 Slaughter-House Cases, 16 Wall. 36; Conway v. Taylor's Executor, 1 Black, 603; Crowley v. Christensen, 137 U.S. 86, 11 S.Ct. 13.

Footnote 35 Madera Waterworks Co. v. Madera, 228 U.S. 454, 33 S.Ct. 571; Jones v. City of Portland, 245 U.S. 217, 38 S.Ct. 112, L.R.A. 1918C, 765, Ann. Cas. 1918E, 660; Green v. Frazier, 253 U.S. 233, 40 S.Ct. 499; Standard Oil Co. v. City of Lincoln, 275 U.S. 504, 48 S.Ct. 155.

Footnote 36 As instances of acts of Congress regulating private businesses consistently with the due process guarantee of the Fifth Amendment the court cites those fixing rates to be charged at private wharves, by chimney sweeps and hackneys, cartmen, wagoners, and draymen in the District of Columbia. Page 125 of 94 U.S.

Footnote 37 Chicago, B. & Q.R.R. Co. v. Iowa, 94 U.S. 155. It will be noted that the emphasis is here reversed, and the carrier is said to be in a business affecting the public not that the business is somehow affected by an interest of the public.

Footnote 38 Peik v. C. & N.W. Ry. Co., 94 U.S. 164.

Footnote 39 See Wolff Packing Co. v. Court of Industrial Relations, supra; Tyson & Brother v. Banton, 273 U.S. 418, 47 S.Ct. 426, 58 A. L.R. 1236; Ribnik v. McBride, 277 U.S. 350, 48 S.Ct. 545, 56 A.L.R. 1327; Williams v. Standard Oil Co., 278 U.S. 235, 49 S.Ct. 115, 60 A.L.R. 596.

Footnote 40 See McLean v. Arkansas, 211 U.S. 539, 547, 29 S.Ct. 206; Tanner v. Little, 240 U.S. 369, 385, 36 S.Ct. 379; Green v. Frazier, 253 U.S. 233, 240, 40 S.Ct. 499; O'Gorman & Young v. Hartford Ins. Co., 282 U.S. 251, 257, 258 S., 51 S.Ct. 130, 72 A.L.R. 1163; Gant v. Oklahoma City, 289 U.S. 98, 102, 53 S.Ct. 530.

Footnote 41 See note 32, supra.

Footnote 42 Public Service Comm. v. Great Northern Utilities Co., , 53 S.Ct. 546; Stephenson v. Binford, supra. See the Transportation Act, 1920, 41 Stat. 456, 418, 422, amending sections 15, 15a, of the Interstate Commerce Act (49 USCA 15, 15a), and compare Anchor Coal Co. v. United States (D.C.) 25 F.(2d) 462; New England Divisions Case, 261 U.S. 184, 190, 196 S., 43 S.Ct. 270.

Footnote 43 See Public Service Comm. v. Great Northern Utilities Co., supra.

[Footnote *] Official Order No. 5, effective April 17, 1933. Ordered that until further notice and subject to the exceptions hereinafter made, the following shall be the minimum prices to be charged for all milk and cream in any and all cities and villages of the State of New York, of more than One Thousand (1,000) population, exclusive of New York City and the Counties of Westchester, Nassau and Suffolk:

Milk-Quarts in bottles: By milk dealers to consumers 10 cents; by milk dealers to stores 8 cents; by stores to consumers 9 cents.

Pints in bottles: By milk dealers to consumers 6 cents; by milk dealers to stores 5 cents; by stores to consumers 6 cents.

The Control Act declares:'Milk dealer' means any person who purchases or handles milk within the state, for sale in this state, or sells milk within the state except when consumed on the premises where sold. Each corporation which if a natural person would be a milk dealer within the meaning of this article, and any subsidiary of such corporation, shall be deemed a milk dealer within the meaning of this definition. A producer who delivers milk only to a milk dealer shall not be deemed a milk dealer.'Producer' means a person producing milk within the state of New York.'Store' means a grocery store, hotel, restaurant, soda fountain, dairy products store, and similar mercantile establishment.'Consumer' means any person other than a milk dealer who purchases milk for fluid consumption.