This action is in lieu of prerogative writ and seeks to set aside a resolution of the Board of Health of the Borough of Somerville (sometimes hereinafter referred to as the "board"), denying plaintiff (sometimes hereinafter referred to as "Borden's"), a license to sell milk and milk products in the Borough of Somerville. The suit also seeks to have declared invalid certain of the provisions of the board's ordinance. The ultimate goal of the plaintiff is a license to sell milk and milk products in the Borough of Somerville heretofore denied by the board of health of that borough.
Testimony was taken. It may be observed, however, that there seems to be no real factual dispute but that a question of law is presented for determination.
The Board of Health of the Borough of Somerville enacted an ordinance entitled "The Sanitary Code of the Borough of Somerville (Revision of 1942)," thereafter amended and supplemented, and hereafter referred to as the "ordinance." Article XI, Subdivision A, Sections 1, 2, 3 and 4 provide:
"Section 1. No fluid milk products shall be sold, offered for sale, or distributed in The Borough of Somerville, in the County of Somerset, except by persons licensed by The Board of Health of the said Borough so to do.
Section 2. No person shall apply to the said Board of Health for a license to sell, offer for sale, or deliver milk, modified milk, skim milk or sweet creams, hereinafter referred to as 'fluid milk products,' unless he possesses a current license issued by the New Jersey State Department of Health, and a current license issued by the New Jersey State Department of Agriculture to produce, process and distribute New Jersey official grades 'A' and 'B' pasteurized milks and creams.
Section 3. (a) All applications for licenses to sell, offer for sale, or distribute fluid milk products in the said Borough shall be addressed to The Board of Health of the said Borough and shall be filed with the Health Officer of the said Borough, and at the time of the filing of every such application there shall also be produced before the Health Officer evidence that the applicant, including its producing, processing and distributing subdivisions, complies
with all of the laws of the State of New Jersey and all of the regulations of the New Jersey State Department of Health, and of the New Jersey State Department of Agriculture, pertaining to New Jersey official grades 'A' and 'B' pasteurized milks and creams.
(b) Upon application being made for a license as required by the provisions of Subdivision A of this Article, and whenever required by the Board of Health or its Health Officer, Inspector or Agents, there shall be filed by the applicant a verified written statement of his entire source of supply of fluid milk products. This statement shall contain a statement of the grade or grades and classifications of fluid milk products which the applicant proposes to sell, the names and post-office addresses of the owners of each dairy, creamery, receiving station, bottling place and pasteurizing plant from which said supply is procured and shall bear the signature of the application. Before any change is made in the source of supply or any additional supply is received, written permission so to do must first be obtained from the Board of Health, or its duly authorized agents.
(c) No fluid milk products shall be sold or delivered in the Borough of Somerville, which shall have been produced by cows while in the hands of a cattle dealer or dealers.
Section 4. Following the filing of an application for a license to sell, offer for sale, or deliver fluid milk products in the said Borough of Somerville, the Health Officer of the said Borough, or a duly authorized inspector, or agent of the Board of Health, shall as he may deem it necessary to the public health, investigate the sources, production, processing and distributing facilities, practices and records of the applicant and shall report his findings to The Board of Health of the said Borough. On approval of the application by the said Board of Health and on payment of a license fee of $2.00 for the first place or vehicle to be used by the licensee in the Borough in the distribution or sale of fluid milk products, plus $1.00 for each additional place or vehicle so to be used by the licensee, which fees shall accompany the license application, the Secretary, or in his absence, the President of the Board of Health, shall issue a license, which shall remain effective, unless earlier revoked or suspended for cause, until the last day of June following the date of issuance thereof."
On June 23, 1953 Borden's filed with the board of health a written application for a license to sell, vend, or deliver (wholesale or retail) milk and milk products in the Borough of Somerville, accompanying its application with a check for the requisite fee. The application was on a printed form supplied by the board. Borden's application stated in part that if a license was granted to it, it would at all times comply with the provisions, rules and regulations of the Borough of Somerville for the sale of fluid milk products and nonfluid
dairy products "except as to any requirement of the Ordinance of the Borough of Somerville requiring that the applicant possess a current license issued by the New Jersey State Department of Agriculture to produce, possess and distribute New Jersey official grades 'A' and 'B' pastuerized milk and cream."
It will serve no useful purpose to recite the action of the board during the months of August and September of 1953 except to recite that on November 13, 1953 the board advised the plaintiff of the passage of a resolution on October 27, 1953 denying plaintiff's application for a license on the grounds that plaintiff had failed to comply with the provisions of Article XI and in particular with subdivision (A), (2) and (3).
It is conceded that one may not obtain a license by the New Jersey State Department of Agriculture (sometimes hereinafter referred to as "Agriculture") to produce, process and distribute New Jersey official Grades "A" and "B" unless the milk is produced within the State of New Jersey, and further complies with the standards interposed by Agriculture which are admittedly more stringent than the regulations of the New Jersey State Department of Health.
It is Borden's contention that New Jersey is known as a "milk deficiency State"; within its borders is produced approximately one-half of the total milk consumed by its population. The statement of Borden's that the Borough of Somerville is the only municipality within the State that has the requirements now under review in this dispute while not dispositive, is at least interesting.
Borden's finds no fault with the regulations of Agriculture. It contends that Agriculture forms no part of the milk licensing scheme in this State, but rather Agriculture's main concern is with the marketing and ...