Price, Schettino and Gaulkin. The opinion of the court was delivered by Gaulkin, J.A.D.
[52 NJSuper Page 136] O'Dowd's Dairy (hereafter called O'Dowd's) appealed "from the whole of the final decision, determination and order of the Director of the Office of Milk Industry dated February 13, 1958." That order followed a hearing before the Director, held pursuant to an order to
show cause issued by him, which called upon O'Dowd's to show cause why its license to engage in the milk business should not be suspended or revoked. It was charged in that order to show cause that O'Dowd's had violated various sections of the milk control law (N.J.S.A. 4:12 A -1 et seq.) and two "official orders" of the Office of Milk Industry (OMI) adopted pursuant thereto.
At the hearing before the Director OMI was represented by a deputy attorney general, and O'Dowd's by its counsel. Each side called witnesses who were examined and cross-examined. The Director then rendered the decision appealed from. In it he concluded:
"After consideration of the facts presented at the hearing, I find O'Dowd's guilty of violating Order 1 and Order 56-2. I impose a penalty on it of $50 plus the cost of the hearing. In addition, I order it to pay all producers at least the minimum price for the period of February, 1957 as indicated on the auditor's report it received with the Order to Show Cause in this case within 30 days of receipt of this determination, or in the alternative, its license will be revoked."
Said Order 1 requires dealers to account to producers on a monthly basis, and Order 56-2 fixes a minimum price to be paid to producers for Class I milk.
O'Dowd's appealed on the grounds that (a) the Director had no jurisdiction to order appellant to pay money to the farmer producers; (b) the Director had no authority to impose a penalty of $50, and (c) the Director had no authority to assess the cost of the hearing upon appellant. After oral argument the parties amicably agreed upon the amount to be paid to the producers and ground of appeal (a) above mentioned was withdrawn. Therefore this opinion will deal only with the remaining questions.
In Sherry v. Schomp , 31 N.J. Super. 267 (App. Div. 1954), this court held the Director has no authority to impose the monetary penalties fixed by N.J.S.A. 4:12 A -39. The Director says that holding was not necessary for the decision in the Sherry case and therefore was dictum , and he asks us to reconsider and reverse that holding. He
advances the arguments which will be dealt with hereafter, which he says he was not afforded an opportunity to present in the Sherry case.
N.J.S.A. 4:12 A -39 provides:
"Any person who shall violate any of the provisions of this act or the orders, rules and regulations of the director as adopted from time to time shall be deemed guilty of a violation of the provisions of this act and shall pay a penalty of not more than fifty dollars ($50.00) for the first offense and not more than two hundred dollars ($200.00) for the second, or each subsequent offense, and such penalty when collected shall be paid ...