For the prosecutor, Wilfred B. Wolcott.
For the respondents, David T. Wilentz, attorney-general, and Edward W. Currie, assistant attorney-general.
Before Justices Case and Bodine.
The opinion of the court wes delivered by
CASE, J. The matter comes before us initially on a rule to show cause why a writ of certiorari should not issue to review "a certain order of the said milk control board of the state of New Jersey designated as official order No. B-15." It was stipulated by counsel that the court, if it should allow
the writ, might proceed immediately to a final determination thereof upon the record submitted under the rule. We think that a writ should issue, and we move to a final determination, assuming that a writ has issued, in accordance with the rule, to review order No. B-15.
It is first desirable to understand precisely what the order under review does. Order No. B-15, issued March 27th, 1935, effective April 1st, 1935, is an amendment and restatement of section 2 of order No. B-1, issued June 26th, 1934, effective July 1st, 1934. Order No. B-1 is not under review. Section 2 of the last named order segregated the counties of the state into numbered areas, classified milk as "Grade A" and "other than Grade A" and fixed minimum prices to be charged (1) by milk dealers to consumers, (2) by milk dealers to stores and (3) by stores to consumers. The significant change accomplished by order No. B-15, in so far as the present litigation is concerned, was to permit sales in areas Nos. 1 and 2 from milk dealers to stores and from stores to consumers without the deposit, which had theretofore been required, of one cent for the bottle. Consequently, stores were enabled to sell to consumers at a flat price of one cent below that charged for doorstep delivery by those, including the prosecutor, whom the order designates "milk dealers." The effect was to increase, potentially, the differential between the price at which prosecutor could sell and that at which the stores could sell, but prosecutor has waived that differential as a ground for reversal. Its field of contest therefore is limited to such provisions of B-15 as were already contained in B-1.
Prosecutor wrote down thirteen reasons why order No. B-15 should be set aside. Reasons numbered 1, 2, 3, 4, 8 and 13 are abandoned.
The fifth reason is that "official order No. B-15 is illegal and void in that, without legislative authority, it assumes to fix and determine minimum prices to be charged by milk dealers to stores, &c., in connection with sales of Grade A milk and milk other than Grade A."
The statute known as the Milk Control act, chapter 169, Pamph. L. 1933, P1, art. VII, as ...