Clapp, Goldmann and Ewart. The opinion of the court was delivered by Ewart, J.A.D.
Plaintiffs, 35 in number, most of whom are processors (wholesalers) of milk and milk products and the remainder of whom are subdealers (retailers) of milk products, being aggrieved by the provisions of paragraph three of Regulation F-31 promulgated April 16, 1953 (and to be effective May 1, 1953) by the Director of the Office of Milk Industry, Department of Agriculture, appeal to this court for a judicial review of paragraph three of said Regulation F-31, pursuant to the provisions of R.S. 4:1-34 and R.R. 4:88-8 et seq.
The regulation in question reads as follows:
In order to simplify the discount regulation on sales by Processors to Subdealers, we are continuing those presently in effect in this regulation.
1. A subdealer who uses his own cases and bottles may be allowed a discount of 1/4c per quart by the dealer or processor for the use of bottles and cases. Pints, half-pints, or other type container must
be converted into quarts. Where the dealer furnishes the bottles, a bottle deposit of $.03 each shall be charged, and where a container box is furnished, 50c shall be charged for each box. Caps are to be furnished by the dealer.
2. Discounts allowed on volume purchases shall be determined on the average daily purchases for each week. Such discounts may only be allowed a sub-dealer who purchases quantities in accordance with the aforesaid schedule. This schedule of prices may become applicable to a subdealer who, by actual purchase, acquires the business of another subdealer, thereby increasing his volume of business to conform to the above schedule.
3. If a subdealer or dealer transports or arranges for the transportation of the milk which he purchases from a dealer's or processor's depot, bottling or processing plant, to his plant or distributing point, including return of empty bottles and cases, the actual cost of cartage may be deducted from the prices as fixed by the Director. This cost is to be credited to the subdealer's account by the dealer or processor upon the presentation of receipts covering the cartage, and in no case shall the deductions exceed the following schedule: --
From plant or Up to 6 miles None
depot to dis- 6 miles and up to 11 miles 1/4c
tribution point, 11 miles and up to 26 miles 1/2c
one way 26 miles and up to 51 miles 3/4c
Computations are to be made on the basis of quarts; pints, half-pints or other type containers must be converted into quart equivalent.
In the application of the above schedule of deductions, the distance shall be that which exists by the most direct route between the subdealer's plant or central distributing point (address listed on license) and the processor's or dealer's nearest depot or bottling or processing plant.
This regulation shall take effect at 12:01 A.M., Eastern Daylight Saving Time, Friday, May 1, 1953.
/s/ C. Wesley Armstrong, Jr.
C. WESLEY ARMSTRONG, JR., DIRECTOR