Goldmann, Conford and Haneman. The opinion of the court was delivered by Goldmann, S.j.a.d.
Plaintiff, by petition for declaratory judgment under R.R. 4:88-10, seeks to review the validity of Order No. 59-3 promulgated by defendant Director of the Office of Milk Industry, effective January 1, 1960, and to compel defendant State Superintendent of Weights and Measures to enforce the provisions of R.S. 51:1-30. Defendants move for summary judgment.
Plaintiff is engaged in the business of selling groceries and dairy products at retail, including milk in pints, quarts and half-gallons, allegedly in reliance upon R.S. 51:1-30, the terms of which we reproduce here for convenience:
"Bottles used for the sale of milk and cream shall be of the capacity of half gallon, three pints, one quart, one pint, half pint, and one gill, filled to the bottom of the cap, ring or stopple. The following variations on individual bottles or jars may be allowed: Six drams above and six drams below on the half gallon; five drams above and five drams below on the three pints; four drams above and four drams below on the quart; three drams above and three drams below on the pint; two drams above and two drams below on the half pint; and two drams above and two drams below on the gill.
Bottles or jars used for the sale of milk shall have clearly blown, or otherwise permanently marked, in the side or bottom of the bottle, the name, initials or trade-mark of the manufacturer and his individual designating number to be used in identifying the bottles, which number shall be different for each manufacturer: The designating number shall be furnished by the state superintendent, upon application by the manufacturer, and a record thereof shall be kept in the office of the state superintendent."
The petition alleges that notwithstanding the provisions of R.S. 51:1-30, defendant Director promulgated Order No. 59-3 which, in sections II(2) and III(2)(i), impliedly authorizes the sale at retail of half-and-half and milk, respectively, in one-gallon containers, and fixes the price thereof to the consumer. Petitioner charges that the order is illegal and void because (1) it violates the explicit provisions of
R.S. 51:1-30 and (2) permissive use of gallon containers subjects the consuming public to unnecessary health risks in that (a) there is an increased possibility of bacterial invasion of unused milk remaining for comparatively longer periods of time in already opened containers, (b) there is an additional danger of bacterial invasion to be anticipated from consumer overbuying beyond family needs because of the reduced price and without heed for proper storage facilities, (c) increased difficulty in properly cleaning empty containers, and (d) increased risk of injury to members of the consuming family through breakage of the heavier, more clumsy containers.
A further reason advanced, and which probably indicated the real reason for the petition, is that the order "places unreasonable and discriminatory competitive burden upon the petitioner, and others conducting the sale of milk from retail stores, in that consumers will prefer to arrange for the home delivery of the said heavy gallon jug type container, rather than personally carry the burdensome receptacle to their homes, as heretofore."
Petitioner further contends that defendant State Superintendent of Weights and Measures is obligated to see to the proper enforcement of and compliance with the provisions of R.S. 51:1-30, and would be derelict in not so acting, by virtue of R.S. 51:1-54, and more particularly R.S. 51:1-63.
Petitioner asks that we adjudge Order No. 59-3 illegal and void in its entirety , as beyond the power of defendant Director to promulgate; that he rescind the order; that defendant State Superintendent enforce the provisions of R.S. 51:1-30; and, finally, that petitioner be permitted to take testimony.
It is defendants' position that the sale of milk in gallon containers is expressly authorized by R.S. 51:1-10 and is not impliedly prohibited by R.S. 51:1-30. They argue, and we agree, that to follow the usual steps in prosecuting ...