For the prosecutor, George A. Cella.
For the respondents, David T. Wilentz, attorney-general (Edward W. Currie, assistant attorney-general, of counsel).
Before Justices Bodine, Heher and Perskie.
The opinion of the court was delivered by
PERSKIE, J. Pursuant to stipulation of respective counsel and orders of this court, the two rules to show cause in these
cases are treated as though writs of certiorari had been granted, and depositions taken under the rules to show cause are treated as though presented upon the return of the writs of certiorari. The causes, therefore, are before us for final determination upon the merits.
The Reck Milk Company, a corporation of the State of New Jersey (hereinafter called "Milk Company"), seeks to review respondents' order denying its application for a renewal of a license to engage in business as a milk dealer for the year beginning July 1st, 1937, and ending June 30th, 1938; and the Reck Dairy Company, also a New Jersey corporation (hereinafter called "Dairy Company"), the other prosecutor, seeks similar review of respondents' order denying its application for a license to operate as a subdealer for the same year. The "Milk Company" processes and bottles the milk purchased from the farmer, and the "Dairy Company" hauls the milk to the "Milk Company" from the farm or from assembly points to which the farmer has delivered the milk.
Each prosecutor originally filed an application with the milk control board of our state seeking a renewal of its license pursuant to 2 Rev. Stat. (1937) App. A:8-24, 28. Pamph. L. 1935, ch. 175, p. 412, as amended by Pamph. L. 1937, ch. 56, p. 156. Orders to show cause why the applications should not be denied, or if issued, be conditional, were promulgated, and hearings, some of which prosecutors refused or failed to attend although they had notice thereof, were held. Upon the conclusion of the hearings, the respondent board, on August 18th, 1937, filed its determinations and orders denying both applications. Thereafter, on September 21st, 1937, each prosecutor obtained a rule to show cause why a writ of certiorari should not issue. On October 6th, 1937, the rules were dismissed upon motion, for failure to prosecute. Later, however, on October 14th, 1937, the order dismissing these rules was vacated; the rules to show cause were continued, and as already indicated, the causes are now to be treated as though writs of certiorari were allowed.
The "Milk Company" assigned eighty-nine reasons why respondents' order denying its application for a license
"should be reversed, set aside, and for nothing holden." The order attacked recites, in substance, the procedure taken, and sets forth facts and findings to the effect that the "Milk Company" violated an order of the board (order D-5) in that it deducted eight cents per hundredweight in payments to grade B milk producers, and twelve cents per hundredweight in payment to grade A milk producers. These deductions, the board found, were made from the minimum producer prices fixed by the board in its official orders C-14, D-5, D-15 and D-17 and were unauthorized because these orders forbade deductions for transportation of milk purchased by companies, such as prosecutor's, from producers, when the milk has been delivered, as it was here, by the producer to platforms and other assembly points used by the prosecutor company. The board further found that prosecutor refused to purchase milk in accordance with these orders; that it refused and failed to furnish or pay haulage or transportation charges from the various assembly points to its plant; that it unlawfully caused such charges to be borne by the producers of the milk; that, from the minimum prices set forth in the aforementioned official orders and in official orders D-19, D-20 and D-24 prosecutor unlawfully deducted cartage charges; that by such actions, prosecutor violated 2 Rev. Stat., supra, App. A:8-23 (chapter 175, Pamph. L. 1935, § 501, as amended by chapter 56, Pamph. L. 1937); and that by failing to file certain reports, prosecutor also violated 2 Rev. ...