ATKINSON, Presiding Justice.
(After stating the foregoing facts.) The act (Ga. L. 1937, p. 247), as amended (Code, Ann. Supp., § 42-523 et seq.), with the emergency feature thereof stricken by the act of 1949, p. 78, is here attacked on the ground that the authority therein to fix the price of milk is in violation of article 1, section 1, paragraph 3 of the State Constitution (Code, Ann., § 2-103), which is the due-process clause, in that it restricts the freedom of contract. This act has three times been before
Before the General Assembly can authorize price fixing without violating the due-process clause of our Constitution, among other requirements, it must be done in a business or where property involved is "affected with a public interest," and the milk industry does not come within that scope.
We give credit to the view as taken by Presiding Justice Samuel C. Atkinson in his dissenting opinion in the Holcombe case, supra, and recognize "that as a health measure reasonable regulations may be enacted by the legislature, applying to sale and distribution of milk under the police power of the State," but by its provision to fix the price "it thus takes from the seller and purchaser the right to agree upon the price of their choice. . . The right to contract is a property right which is protected by the due-process clauses of our State and Federal constitutions, which can not be abridged by mere legislative act.. . To allow abridgment . . by taking from them the right to agree upon the price, would be to put legislation, whether enacted in exercise of claimed general or police power of the legislature, above the constitution. In this view so much of the act in question as attempts to fix the price . . is void as violative of the due-process clauses of the State and Federal constitutions."
While we recognize that the General Assembly was authorized to find that the milk industry was large, milk was a product of virtually universal use throughout the State, that it was perishable, important as a human food, and affected the health of the people, and to further find that it was important to keep an adequate and constant supply at a price fair to both producer and consumer; yet such facts would not qualify the milk industry as being a business "affected with a public interest," notwithstanding the public or the General Assembly would have a feeling of concern in regard to its maintenance. For an industry or any particular business to become "affected with a public interest," its business or its property must be so applied to the public as to authorize the conclusion that it has been devoted to a public use and thereby its use, in effect, granted to the public.
The right to contract, and for the seller and purchaser to
While we recognize that milk is an essential food and that a constant and sufficient supply is desirable, or even necessary, yet the same may be said of meat and bread. To let down the barriers of our Constitution and take away the right of contract by seller and purchaser as to milk, might well be applied to other food products. Once the constitutional barrier against infringement upon the right of free contract is down, and the gates become open to products because of their universal use by the public and its concern for a constant and adequate supply thereof, other products such as gasoline, oil, tobacco, clothing, and similar articles could well be the subject for price fixing.
As authority to authorize the price-fixing feature of the act in question, it is insisted that the private character of a business does not necessarily remove it from the realm of regulation of prices; and the usury laws, fixing the price which may be exacted for the use of money, are cited therefor; and it is asserted that no business more essentially private in character can be imagined than that of loaning one's personal funds. This analogy runs through some of the decisions upholding the right to fix the price of milk, but we can see no essential resemblance between milk and money. One is a product of an animal and processed for consumption by the efforts of man; the other is a medium of exchange created and produced by the sovereign power, the sole purpose of its creation being that it be applied and devoted to the public for its use, and accordingly it has every indicia of a product affected with a public interest.
We are not unmindful that this act has been in force for some years and many communities have operated under its terms, and that disappointment and the necessity for readjustment will be experienced by some; but any wisdom or expediency of the act must yield to the provisions of the Constitution, the fundamental law of the land, and this court would be recreant to its duty if it failed to set aside an act which encroaches upon the rights of the people reserved to them by the Constitution.
Judgment reversed. All the Justices concur.
DUCKWORTH, Chief Justice, concurring specially. The demurrer challenges the provisions of the amended act authorizing the Board to fix prices of milk, upon the grounds that it offends the due-process clause of the Federal Constitution, and that it offends the due-process clause of the State Constitution. In so far as the Federal question is concerned, we are precluded by the decision in Nebbia v. New York, 291 U.S. 502, and would be required to sustain the act as against the attack based upon the Federal Constitution. However, I think that, in view of the irreconcilable conflict in numerous decisions of the Supreme Court of the United States, considerable light upon the question before us will be gained by referring to a few of those decisions. In the first place, it should be noted that the Nebbia decision has the concurrence of only five Justices, and that the strong dissenting opinion by Mr. Justice McReynolds is concurred in by Justices Van Devanter, Sutherland, and Butler. In Adkins v. Children's Hospital, 261 U.S. 525, 545 (43 Sup. Ct. 394, 67 L. ed. 785, 24 A. L. R. 1238), it was said: "That the right to contract about one's affairs is a part of the liberty of the individual protected by this clause [fifth amendment], is settled by the decisions of this Court and is no longer open to question." Such a positive declaration by that court would appear to have put at rest the question there stated. Shortly thereafter, in Chas. Wolff Packing Co. v. Industrial Court, 262 U.S. 522, 537 (43 Sup. Ct. 630, 67 L. ed. 1103, 27 A. L. R. 1280), it was said: "It has never been supposed, since the adoption of the Constitution, that the business of the butcher, or the baker, the tailor, the wood chopper, the mining operator or the miner was clothed with such a public interest that the price of his product or his wages could be fixed by State regulation." In the earlier case of Coppage v. Kansas, 236 U.S. 1, 14 (35 Sup. Ct. 240, 59 L. ed. 441, L. R. A. 1915 C, 960), that court said: "Included in the right of personal liberty and the right of private property — partaking of the nature of each — is the right to make contracts for the acquisition of property. .. If this right be struck down or arbitrarily interfered with, there is a substantial impairment
The ground of the demurrer invoking the due-process clause of the State Constitution requires a decision by this court upon that question unhampered by the decisions of the Federal court on the Federal question. This court has heretofore twice ruled upon the question presented, in Bohannon v. Duncan, 185 Ga. 840, and Holcombe v. Georgia Milk Confederation, 188 Ga. 358, both decisions sustaining the act but in each there were dissents. We may put aside as irrelevant here the decision in Bohannon v. Duncan, supra, as it was expressly based upon the legislative findings of the existence of an emergency, which was in nowise challenged by the complainant. The decision in Holcombe v. Georgia Milk Confederation, supra, was very largely based upon the decision in the Nebbia case, supra. The opinion states that, when legislation is based upon a finding of fact by the legislature, courts will do no more than determine whether or not the legislative means provided would likely accomplish the ends sought. The legislative finding in the Nebbia case was that there was an over-supply of milk, and the means provided by the act to remedy the evil thus found was to fix a minimum price below which milk could not be sold. To me it is perfectly obvious, as pointed out in the dissenting opinion in that case, that the means thus provided, instead of remedying the evil found, would necessarily aggravate and intensify that evil. The finding here of need for pure and wholesome milk is in no degree met by providing for price-fixing. Thus is demonstrated the unsoundness of the decision in Holcombe v. Georgia Milk Confederation, supra, since it was based upon the Nebbia case which, when tested by the rule as stated by this court, was an unwarranted exercise of the legislative power. Paragraph 7 of the petition quotes Code (Ann. Supp.) § 42-553, which empowers the Milk Board to fix prices at which milk must be sold. Paragraph (a) of the demurrer challenges the constitutionality of this provision of the law upon the ground that it offends the Constitution (Code, Ann. § 2-103). Thus is the constitutional attack directed to
While the petition here asserts that the defendant upon his application therefor had, by the Board, been denied a license to produce and sell milk, yet it further appears from the petition and the demurrer that the license was denied because of the violation of prices fixed pursuant to the act. Therefore, the above ruling means that, in the circumstances pleaded, no right is shown in the petitioner to complain because the defendant had no license. I would assert as my own opinion and for future guidance in the administration of the law that any arbitrary refusal to grant a license would constitute the denial of due process. The fundamental basis upon which my conclusion rests is that the constitutional guarantee of due process would forbid any action that curtails free competition or impairs the value of private property.
The Constitution of this State, by repeated declarations, leaves no room for doubt but that it intends to place around private property the same safeguards with which it shields life and liberty. The following paragraphs of this document in
While it is no legitimate function of the judiciary to advocate or establish any given systems of government, yet it is not inappropriate in this day and age — when the American system of human liberty and free enterprise that has demonstrated its pre-eminent virtue in the growth of the most powerful nation on earth in a relatively short period of time is being assailed from within and from without by the advocates of principles that would render the individual a slave and the government a master — to point to that glorious record as justification for our constitutional system. Courts should not hesitate to act with firmness in the performance of such a high duty. There is no place in this situation for judicial timidity or apology. If this court, in deference to the economic advantages which some may derive from this legislation, should shrink from the performance of its