People v. Perretta

Crouch, J. These actions were brought by the State to enforce a penalty against the defendant for a violation of the provisions of section 252 of the Agriculture and Markets Law (Laws of 1922, chap. 48, as amd. by Laws of 1927, chaps. 207, 416). The defendant was alleged in the complaint to have been conducting the business of operating a milk-gathering station or plant where milk was purchased from producers, without being licensed as required by the section of the law mentioned. The complaints differ merely in charging the conducting of the business upon different dates. Upon motions by the defendant to dismiss the respective complaints on the ground that the complaints failed to state facts sufficient to constitute causes of action, the defendant prevailed and each of the complaints was dismissed, it being held that the act in question (Agr. & Mkts. Law, § 252), was unconstitutional under the Federal and State Constitutions (N. Y. Const, art. 1, § 6; U. S. Const. 14th Amendt. § 1). The conclusion reached by the learned justice at Special Term was based upon the theory that the condition imposed by the statute as a prerequisite to obtaining a license, namely, the filing of a bond as provided by section 253 of the statute (as amd. by Laws of 1927, chaps. 207, 416, and Laws of 1928, chap. 194), conditioned not only upon obedience of the terms of the statute, but expressly on the payment of debts due producers, transcended the limits of the police power in that its purpose was merely to secure to producers the purchase price of merchandise. We are disposed to agree with that conclusion. We think the cases here must be ruled by the decision in People v. Beakes Dairy Co. (222 N. Y. 416). The statute involved is substantially the same. There by dictum —• which under the circumstances of that case has for us the practical effect of authority — the court upheld under the reserved power legislation which it plainly intimated was unconstitutional under the police power when applied to an individual. It is suggested in the minority opinion here that, since the reserved power like the police power is subject to the limitations imposed by the due process and equal protection clauses of the State and Federal Constitutions, we must necessarily disregard that intimation and hold the statute valid. We do not look upon that conclusion as a necessity. If we must speculate upon what the holding in the Beakes case would have been had the defendant been an individual instead of a corporation, we think we must be guided [422] by the considered view indicated or perhaps expressed in the opinion. But if we were at liberty to consider the question de novo, and had to do so in the light of the present record and briefs, our decision would be the same. Apart from a recent tendency, induced perhaps by post-war conservatism, the boundaries of the police power have been pricked out by decided cases in ever-widening lines. It still remains true, however, that “ 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.” (Fisher Co. v. Woods, 187 N. Y. 90, 94.) Whether, in any particular instance, the Legislature has or has not done that must depend upon an investigation or consideration of the factual situation behind or bearing upon the statute. All we know here, except facts of common knowledge referred to below, appears on the face of the statute itself; and that shows its primary and, as we think, its only object to be a private benefit, not a public need. If there are any facts to support the claim of ultimate public interest, they are not so commonly known as to have come to our attention. So far as we know or have been able to learn, there is no legislative, departmental or other report covering the subject, such as was before the court in Musco v. United Surety Co. (196 N. Y. 459) and in People ex rel. Durham Realty Corp. v. La Feira (230 id. 429). The court has not been furnished with “ Facts of Knowledge” by means of an economic and sociological brief as in Muller v. Oregon (208 U. S. 412) and People v. Schweinler Press (214 N. Y. 395). There is not even the more or less customary assertion in the statute itself of a public necessity or purpose. We do know that milk is a necessity of urban fife. We do not know of any facts which would lead us reasonably to believe that the things exacted by this statute from those who buy milk from producers are prerequisiti.es to an adequate city milk supply. We should have supposed that the ordinary economic inducements were still sufficient to that end. We do know, in a general way, that a considerable proportion of milk producers, through the medium of a co-operative membership corporation, is adequately protected and derives no direct personal benefit from this statute; and so far as that large body of producers is concerned, the argument of ultimate public necessity also falls. We know, too, that in the villages and smaller cities the producers in the adjacent territory peddle their own milk. Here again the argument is inapplicable. The proportion of the total milk supply left seems insufficient as a basis for predicting the serious and widespread shortage which it is said will follow in the absence of the benefits conferred on [423] producers by the statute. Nor is sight to be lost of the close relations between production and distribution. A clog on the latter may very well interfere with the former. Moreover, there is no substantial claim here that the business of buying and distributing milk as it now exists “ is or may become an instrument of widespread oppression ” (People ex rel. Durham Realty Corp. v. La Fetra, 230 N. Y. 429, 451), or that it is or may become a medium of fraud (People v. Beakes Dairy Co., supra) or that it is or may become a danger to public safety, health, morals or general welfare (Safee v. City of Buffalo, 204 App. Div. 561). Before a common and ordinary business is subjected to police interference, some such danger to- the public interest should be reasonably shown to exist. In short, we are unable to see and (if we apply the objective standard) we think a reasonable man would be unable to see, in a degree that is perceptible and clear, a real evil reasonably to be anticipated and guarded against. In the light of our present knowledge, we see no object in the statute except the collection of ordinary debts through the agency of the State. “ But a mere statute to compel the payment of indebtedness does not come within the scope of police regulations.” (Gulf, C. & S. F. R. Co. v. Ellis, 165 U. S. 150, 158.) The judgment should be affirmed, with costs. All concur, except Sears, P. J., and Thompson, J., who dissent and vote for reversal on the law and denial of the motion, in an opinion by Sears, P. J. Present —■ Sears, P. J., Crouch, Edgcomb, Thompson and Crosby, JJ.