This is an appeal from a decree of the Circuit Court of Montgomery County, In Equity, holding constitutional Act No. 570, Acts of Alabama 1955, page 1239, listed as Tit. 22, §§ 231(6)-231(13), Pocket Part, Code of 1940.
The action was brought by one Tennessee and five Mississippi milk producers. It is a class action on behalf of other milk producers in those States who engage in the business of producing and selling milk to distributors who later sell and distribute milk and milk products in the State of Alabama. The bill of complaint asks for a declaratory judgment holding Act No. 570 unconstitutional and void. In addition, the bill prayed for a temporary restraining order pending decision and for a permanent injunction. A temporary restraining order was issued by Judge Jones on the date of the filing of the bill against the Commissioner of Agriculture and Industries, restraining him from enforcing the provisions of Act. No. 570. This restraining order remained in effect during the pendency of the action and until the rendering of the decision by the trial court.
The bill was amended several times and ultimately a hearing was had on the bill as amended and the respondent's answers. Considerable testimony was taken either ore tenus or by deposition on behalf of the complainants. The respondent offered no evidence. The decree of the trial court held Act. No. 570 to be constitutional and dissolved the temporary restraining order to be effective ten days after the date of the decree. Within that ten days, complainants applied for and obtained a reinstatement of the temporary restraining order from this court pending our decision in the cause.
The contentions raised by the assignments of error may be grouped as follows:
1. The Act is unconstitutional because it violates appellants' rights under the Fourteenth Amendment (the privileges or immunities, the due process and the equal protection clauses).
2. The Act is unconstitutional because it violates Section 2 of Article 4 of the Constitution of the United States, "The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens of the several States.
3. The Act is unconstitutional because it violates the Commerce Clause of the Constitution of the United States Const. art. 1, § 8, cl. 3.
4. The rules and regulations promulgated by the Department of Agriculture and Industries under the law are unconstitutional.
5. The court erred in refusing to permit appellants to introduce testimony by members of the Legislature to show the intent and history of the legislation, the circumstances surrounding its adoption and the evil thereby sought to be remedied.
The question presented to us is whether or not Act. No. 570 is unconstitutional on its face. The only action taken by the respondent Todd, as Commissioner of Agriculture and Industries, under the Act was to promulgate the rules and regulations as provided in the Act. There has been no application or enforcement of the Act or of the rules and regulations because the Commissioner has been under injunction continuously and has been prevented from enforcing, applying or administering the Act.
Section 1 of Act No. 570 expressly states and declares its purpose:
Section 3 is, in part, as follows:
This is not a situation where a State statute must fall because Congress chose to exercise its paramount power to regulate commerce under that part of the Constitution of the United States which provides that the Congress shall have power to regulate commerce among the several States. Congress has not chosen to act in this field but, on the contrary, as stated in Milk Control Board of Pennsylvania v. Eisenberg Farm Products, 306 U.S. 346, 59 S.Ct. 528, 530, 83 L.Ed. 752, "* * * matters requiring diversity of treatment according to the special requirements of local conditions, the states remain free to act within their respective jurisdictions until Congress sees fit to act in the exercise of its overriding authority. One of the commonest forms of state action is the exercise of the police power directed to the control of local conditions and exerted in the interest of the welfare of the state's citizens." In the Eisenberg case, the Supreme Court of the United States recognized that the milk business is essentially local and, therefore, subject to the police power of the State. Early in the history of our country, Chief Justice Marshall said, speaking of inspection laws, that such laws are "a portion of that immense mass of legislation, which embraces everything within the territory of a State, not surrendered to the general government: all of which can be most advantageously exercised by the States themselves. Inspection laws, quarantine laws, health laws of every description, * * * are component parts of this mass." Gibbons v. Ogden, 9 Wheat. 1, 6 L.Ed. 23.
Under its police power, the State of Alabama is authorized to enact laws designed to protect the health of its citizens and more particularly where milk is concerned because of its nutritional importance to human beings and because of its susceptibility to contamination. Franklin v. State, 232 Ala. 637, 169 So. 295; Taylor v. State, 237 Ala. 178, 186 So. 463. The Legislature may even grant to a municipality the power to provide health regulations. Gilchrist Drug Co. v. City of Birmingham, 234 Ala. 204, 174 So. 609, 111 A.L.R. 103; Walker v. City of Birmingham, 216 Ala. 206, 112 So. 823. That adequate inspection laws are imperative is obvious in view of the fact that Alabama imports from Mississippi alone approximately fifty-two million pounds of milk annually.
Prior to 1955, there was no state agency with power to enforce health regulations pertaining to the handling, processing and production of milk within the State. The standards varied from county to county and the enforcement was at a local level. In the second extraordinary session of the 1955 Legislature, Act No. 65, Acts of Alabama 1955, p. 176, approved April 13, 1955, listed as Tit. 22, §§ 231(1)-231(5), Pocket Part, Code 1940, changed this status and provided for uniformity of enforcement. Under Act No. 65, no milk producer or distributor in Alabama or out of the State was permitted to do business in Alabama without first securing a joint permit from the state and county boards of health. Act No. 570 did not become effective until October 9, 1955.
It should be noted that the quoted part of Section 3 of Act No. 570 shows that the permits required under that Act are in addition to the permits required under Act No. 65, and all of the provisions of Act No. 65 remain in full force and effect.
Appellants urge that Act No. 570 is unconstitutional in many of the respects
Appellants rely on several cases which hold in effect that one State may not, under the guise of exerting its police power, discriminate against products of other States by requiring permits under inspection laws. These cases are distinguishable from the instant case in that they deal with the administration or enforcement of their respective statutes and not with the statute as viewed in the abstract or on its face. As previously noted, there has been no enforcement of Act No. 570 or of the rules and regulations promulgated thereunder. Examples of the cases cited by appellants are:
Dean Milk Co. v. City of Madison, 340 U.S. 349, 71 S.Ct. 295, 9 L.Ed. 329, where the appellant was denied a license to sell its milk products within Madison, Wis., solely because its pasteurization plants were more than five miles away.
Hood & Sons v. Du Mond, 336 U.S. 525, 69 S.Ct. 657, 93 L.Ed. 865, where the appellant was denied a license to operate a receiving depot where it took raw milk from farmers even though it met the requirements of the statute.
Baldwin v. G. A. F. Seelig, Inc., 294 U.S. 511, 55 S.Ct. 497, 79 L.Ed. 1032, 101 A. L.R. 55, where the appellant was denied a license as a milk dealer in New York City because it purchased milk produced in Vermont cheaper than the minimum price set for milk produced in New York State.
Miller v. Williams, D.C., 12 F.Supp. 236, where plaintiff, a manufacturer of ice cream in Philadelphia, was notified that his product could only be sold in Baltimore when there was a shortage of local ice cream since the contested regulation prohibited the sale of cream where it was produced from dairies more than fifty miles distant from Baltimore except in cases of emergency (a shortage of local cream).
Brimmer v. Rebman, 138 U.S. 78, 11 S.Ct. 213, 34 L.Ed. 862, where Rebman was convicted under a statute which forbade the selling of fresh meat in Virginia which had been slaughtered more than one hundred miles from the place it was offered for sale. The meat Rebman sold had been slaughtered in Illinois by his employer, Armour & Co.
State of Minnesota v. Barber, 136 U.S. 313, 10 S.Ct. 862, 34 L.Ed. 455, where Barber was convicted under a Minnesota statute for selling fresh meat in that state which had been slaughtered in Illinois, the statute having the effect of limiting sales of all fresh meat to that slaughtered in Minnesota.
Best & Co. v. Maxwell, 311 U.S. 454, 61 S.Ct. 334, 85 L.Ed 275, where the appellant paid under protest a tax required of one, not a regular retail merchant in the state, who displayed samples in temporary quarters.
Voight v. Wright, 141 U.S. 62, 11 S.Ct. 855, 35 L.Ed. 638, which was a suit to recover a license fee charged under a statute providing for inspection of flour shipped into Virginia when no inspection was required of flour manufactured in Virginia.
The reason for striking down the legislation in the foregoing cases was that the conditions imposed by the various statutes or ordinances made it practically impossible to import the goods into the State. Act No. 570 does not prevent out-of-state producers from shipping their milk into Alabama. The real requirement that they must meet is a reasonable one—that "such milk is produced and handled under sanitary conditions no less adequate in protection of public health" than milk produced in Alabama. Since Act No. 570 has never been put into operation, it cannot be said that there has been any improper application
Appellants insist that Act No. 65 provides for an adequate inspection by the inspectors of the state and county health departments, and that the inspection by the Department of Agriculture and Industries of out-of-state milk producers not only discriminates against them, but is a burden on interstate commerce.
The State Health Department has only five statewide inspectors, and it is their duty to inspect both Alabama and out-of-state producers and shipments under Act No. 65 and the rules and regulations under that Act. Each of Alabama's sixty-seven counties has a county health department and sixty-four counties have sanitarians or sanitary officers who check and inspect dairies in their respective counties. The three counties without sanitarians have little or no dairy industry. The work of the county sanitarians is checked by the five statewide inspectors. It is immediately apparent that milk produced in Alabama is inspected at both the local and the statewide level and the local inspectors are on the ground and their territorial limit is sufficiently small to make the inspection adequate. According to the evidence, there is no organization in the State of Tennessee to provide local inspection. It is undisputed that some out-of-state producers were stopped from shipping milk into Alabama after the passage of Act No. 65 and Act No. 570, based upon inspections of health department inspectors.
In view of the great quantity of milk imported into Alabama, we cannot agree that the furnishing of additional inspectors to inspect conditions under which out-of-state milk is produced is either discriminatory, arbitrary or so burdensome upon interstate commerce as to render the Act in question unconstitutional. Their sole objective should be to insure that out-of-state milk which is shipped into Alabama is produced under sanitary conditions no less adequate than that produced in Alabama. Every state police statute necessarily will affect interstate commerce in some degree, but such a statute does not run counter to the grant of congressional power merely because it incidentally or indirectly involves or burdens interstate commerce. Milk Control Board of Pennsylvania v. Eisenberg Farm Products, 306 U.S. 346, 59 S.Ct. 528, 83 L.Ed. 752; Mintz v. Baldwin, 289 U.S. 346, 53 S.Ct. 611, 77 L. Ed. 1245; Asbell v. State of Kansas, 209 U.S. 251, 28 S.Ct. 485, 52 L.Ed. 778; Reid v. State of Colorado, 187 U.S. 137, 23 S.Ct. 92, 47 L.Ed. 108.
The appellants seem fearful of what the Commissioner might do under Act No. 570. One of their main concerns centers around the provision in Section 6 of the Act which provides that permits shall be issued on a semi annual basis. Appellants insist that the permit should be on an annual basis. To more fully understand appellants' contention, it is necessary to give a brief background on the operation of the dairy businesses in question.
The supply of milk and its cost of production varies with the time of year. At the season of greatest production, the consumer demand is the lowest. In view of these facts, a system has been worked out which will insure that the distributor gets enough milk during the scarce season to supply the public demand, and in return that the producer, during the flush season or season of greatest milk production, will have a market for his milk and receive a fair price therefor. All the producer-complainants
Appellants introduced testimony to the effect that it is not possible for a producer to stay in business as a producer of Grade A milk unless he is able to make his calculations on the basis of an annual quota. Conceding this, we fail to see the logic of appellants' arguments that since the permit under the Act is only of six months' duration that it will necessarily keep them from shipping milk into Alabama. The producer can still make his calculations on an annual basis and as long as the producer complies with the health regulations of Alabama, the Commissioner of Agriculture and Industries must continue to issue him a permit every six months. As to the initial permit, Section 7A of the Act provides that anyone holding a permit under the authority of Act No. 65 shall be entitled to receive one from the Commissioner, and the Commissioner shall have no authority to revoke such permit until an inspection of the premises has been made. The permit can only be revoked for violations of rules and regulations promulgated under the Act; the revocation must be in writing and any person deeming himself aggrieved by any action of the Commissioner under the Act, has a right to appeal to the Circuit Court of Montgomery County. The mere fact that the Commissioner might refuse to reissue a permit does not present this court with a justiciable question. In Highland Farms Dairy, Inc., v. Agnew, 300 U.S. 608, 57 S.Ct. 549, 553, 81 L.Ed. 835, a case involving the validity of a milk control board, it was said:
In Smith v. Cahoon, 283 U.S. 553, 51 S.Ct. 582, 585, 75 L.Ed. 1264, the Supreme Court declared:
The principle is otherwise stated—"* * * We are not justified in declaring a statute unconstitutional merely because it offers an opportunity for abuses. * * *" State ex rel. Hannah v. Armijo, 38 N.M. 73, 28 P.2d 511, 516.
This court has, on many occasions, stated its position with regard to the interpretation of legislative enactments. We can only learn what the Legislature intended by what it has said, and have no right to stray into mazes of conjecture for an imaginary purpose in construing a statute, and where the language of a statute is unambiguous, the clearly expressed intent must be given effect, and there is no room for construction. State v. Bay Towing & Dredging Co., 264 Ala. 187, 85 So.2d 890. Even when construction is necessary, our cases reaffirm the principle that where a statute is capable of two constructions, one which renders it valid and the other invalid, the construction which will uphold its validity must be adopted. Norton v. Lusk, 248 Ala. 110, 26 So.2d 849, 4 Ala.Dig., Constitutional Law, 48. The principle is universal that legislation must be taken to be valid unless the contrary is made clearly to appear. Reid v. State of Colorado, 187 U.S. 137, 47 L.Ed. 108, 23 S.Ct. 92; State ex rel. Wilkinson v. Murphy, 237 Ala. 332, 186 So. 487, 489, 121 A.L.R. 283. The principle is stated in the latter case, by Justice Gardner, as follows:
Appellants have well stated the proposition in their brief as follows:
We think we have shown by the foregoing that the Act, on its face, is reasonable and that the intent and the effect of the Act, on its face, is not to prevent the importation of out-of-state milk in order to eliminate competition with local supplies.
In holding that Act No. 570 is not violative of appellants' constitutional rights, we wish to make it clear that while we do not agree with appellants' construction of a part of Act No. 570, we also warn that an attempted enforcement of the Act under such a construction would render such action under the Act unconstitutional. The pertinent part of appellants' brief states:
We cannot agree that Act No. 570 limits its permits to the actual shipment and transportation of milk, rather, we think the Act and the rules and regulations promulgated thereunder contemplate the issuance of a permit to any out-of-state producer whose milk is shipped or transported into Alabama.
The last grouping of the assignments of error relate to the action of the trial court in refusing to permit the introduction of testimony of four members of the Legislature concerning the consideration and passage of Act No. 570 by that body.
The questions to and the answers of the witnesses clearly show an attempt to have them express their conclusions as to the motive, purpose and intent of the Legislature in passing the Act, and to show that such were different from that expressed in Section 1 of the Act. In Morgan County v. Edmonson, 238 Ala. 522, 192 So. 274, 276, this court said:
See, also, May v. Head, 210 Ala. 112, 96 So. 869. The following from Wiseman v. Madison Cadillac Co., 191 Ark. 1021, 88 S.W.2d 1007, 1009, 103 A.L.R. 1208, is applicable:
See 2 Sutherland, Statutory Construction, § 5011, 3d Ed.; 82 C.J.S. Statutes § 354, p. 745.
The trial court correctly sustained the objections to the testimony of the members of the Legislature.
It follows that the decree of the lower court should be affirmed.
LIVINGSTON, C. J., and SIMPSON and GOODWYN, JJ., concur.