For the prosecutor, John E. Toolan.
For the respondents, Harry S. Medinets.
Before Justices Trenchard, Heher and Perskie.
The opinion of the court was delivered by
PERSKIE, J. The prosecutor seeks to review the action of the health department of the city of Perth Amboy, in refusing to grant it a permit to sell and distribute its milk and milk products in the city of Perth Amboy.
The stipulated facts disclose, substantially, the following situation: The prosecutor, Sheffield Farms Company, Incorporated, is a nationally known dairy corporation of the State of New York. It conducts its business chiefly in the metropolitan area of New York; it sells and distributes approximately two hundred and ninety million quarts of milk a year; thirty-six million quarts of the stated total are sold and distributed annually in the cities of Newark, Orange and Plainfield, New Jersey. This company was the holder of a
license, issued to it by the state department of health, authorizing it to sell and distribute milk in the State of New Jersey. The license was issued to it in pursuance of Pamph. L. 1932, ch. 131, p. 222, and Pamph. L. 1933, ch. 243, p. 645.
On February 7th, 1934, prosecutor made formal written application to the board of health of Perth Amboy for a permit to sell and dispose of its milk in said city and paid the required fee. The application was in proper form and complied with all of the city's requirements. The prosecutor submitted, together with said application, a list of fifty-four dairymen delivering milk to it at Truxton, New York; a list of one hundred and four dairymen delivering milk to it at Ulster, Pennsylvania; a list of two hundred and sixteen dairymen delivering milk to it at Wysox, Pennsylvania, and a list of one hundred dairymen delivering milk to it at Center Lisle. In addition to the aforesaid, the source of supply for certified milk at numerous dairies at Pompton Plains, New Jersey, was also furnished.
Notwithstanding the fact that prosecutor had done all that it was obliged to do, under the state laws, local ordinances, rules and regulations, in the premises, the director in charge of the health department refused to grant the necessary permit to the prosecutor to sell and distribute its milk and milk products in Perth Amboy.
The refusal, as aforesaid, purports to be based on seven grounds. They are specifically set forth in the letter of the director in charge of the health department to counsel of the prosecutor, and they are as follows: (1) That there is already an adequate supply of milk in the city of Perth Amboy for its inhabitants. (2) That the health bureau has the control and regulation of the milk supply well in hand and the assumption by it of any additional burden would embarrass the carrying out of the present system of regulation and control. (3) That the health bureau has a limited budget and it has not sufficient moneys on hand with which to inspect additional ...