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Sherry v. Schomp

June 11, 1954

JAMES P. SHERRY, PETITIONER-APPELLANT,
v.
CHESTER D. SCHOMP, DEPUTY DIRECTOR, OFFICE OF MILK INDUSTRY, ET AL., RESPONDENT-RESPONDENT



Clapp, Francis and Schettino. The opinion of the court was delivered by Schettino, J.s.c. (temporarily assigned).

Schettino

Appellant James P. Sherry appealed from a judgment of the Office of Milk Industry imposing a fine of $50 plus costs for violation of Regulation F-26 promulgated by that office. Subsequently this regulation was brought directly before this court for further proceedings for review of its validity. Several interested groups were permitted to intervene. Additional testimony was taken by order of this court.

At the outset we must comment upon the attempted imposition of a fine. We find no statute purporting to authorize the agency to take such judicial action. The Milk Control Act of 1941 (L. 1941, c. 274; N.J.S.A. 4:12 A -1 et seq.) provides for penalties for violation of regulations of the director to be enforced by proceedings in specified courts. N.J.S.A. 4:12 A -39 and 41. Although the Director is empowered to hold informal hearings upon violations "and upon finding the violations to have been committed, to adjust the same with any person accused * * * for such amounts as may in the discretion of the director, be proper under the circumstances," N.J.S.A. 4:12 A -43, he is powerless to impose a fine upon a contesting licensee. Authority

to revoke licenses does exist under N.J.S.A. 4:12 A -35 for grounds stated therein; and in fact the proceedings against appellant began by complaint and order to show cause why his license should not be revoked, but somehow the judgment took the form we have described. The judgment being without authority, it must be set aside. However, since the validity of the regulation must ultimately be determined, we shall deal with that issue.

Regulation F-26 reads in part:

"In Milk Marketing Areas 3 and 4, the boundaries of which are fixed by the Office of Milk Industry, there exists certain labor contracts which bind part of the industry to hours of delivery. In order that there shall be no unjust or demoralizing practices regarding the delivery of milk in Areas 3 and 4, it is hereby regulated:

A. That any licensee of the Office of Milk Industry delivering milk in Marketing Areas 3 and 4 shall not deliver any milk retail for home consumption except between the hours of 5:30 A.M. and 6 P.M. of any day during the months of May, June, July, August and September and except between the hours of 6 A.M. and 6 P.M. during the months of October, November, December, January, February, March and April; and provided that deliveries made or caused to be made on Sundays and legal holidays not more than two hours prior to 5:30 A.M. shall not be deemed in violation of this regulation.

B. Any licensee of the Office of Milk Industry delivering milk in Marketing Areas 3 and 4 shall not deliver any milk wholesale intended for resale or consumption off the premises of said wholesale place of business except between the hours of 5:30 A.M. and 6 P.M. of any day during the months of May, June, July, August and September and except between the hours of 6 A.M. and 6 P.M. during the months of October, November, December, January, February, March and April; and provided that deliveries made or caused to be made on Sundays and legal holidays not more than two hours prior to 5:30 A.M. shall not be deemed in violation of this regulation.

C. That any licensee of the Office of Milk Industry shall not deliver any milk to a wholesale place of business for consumption on the premises except between the hours of 2 A.M. and 2 P.M. of any day, except that delivery may be made on Saturday after 2 P.M. in those cases where no Sunday delivery is made.

D. In cases where this regulation works a hardship in Marketing Areas 3 and 4 on a government agency or a hospital, application for relief may be made in writing to the Director and the application shall state the reasons for the request for relief from the provisions of this regulation and if the Director deems the reasons satisfactory, he may grant relief from the terms of this regulation."

There are five marketing areas prescribed by the Director Area 3 embraces parts of Monmouth and Ocean Counties; Area 4 embraces Bergen, Passaic, Essex, Hudson, Union, Morris, Somerset, and Middlesex Counties. The regulation is attacked as being beyond statutory authority, ...


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