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In re Regulation F-22 of Office of Milk Industry

Decided: May 9, 1960.


For affirmance -- Chief Justice Weintraub, and Justices Burling, Jacobs, Francis, Proctor, Hall and Schettino. For reversal -- None.

Per Curiam

[32 NJ Page 259] On March 14, 1958 the Director of the Office of Milk Industry issued an amended regulation, F-22, which purported to prohibit the wholesale delivery of milk on Sunday in all sections of the State except certain shore areas. In portions of the excepted areas wholesale deliveries were to be permitted from May 15 through September 15 on every day of the week; in the off season -- September 16 through May 15 -- such deliveries were to be allowed on six days a week, one of which could be Sunday; in other sections such deliveries were permitted six days a week the year round, without limitation as to Sunday. Plaintiff, who operates in the non-shore area of the State, attacked the regulation as arbitrary and discriminatory. We agreed with that view, but, because of uncertainty as to whether our criticism of the rule had extended beyond the contentions raised before the Director and discussed in the briefs of the parties, we decided to remand the record, if desired by the Director, to enable him to add any available pertinent facts in support of his action. In re Regulation F-22, Office of Milk Industry, New Jersey, 30 N.J. 335 (1959). Upon his application, that course was followed. The appeal was

retained, however, pending the submission to us of such supplemental proof and any further findings which might be deemed appropriate.

A short time later, after notice, a hearing was held. The notice given to the public and to the industry expressed, in broad terms, that a further hearing was to be had as to the

"reasonableness of allowing 7 day summer deliveries in the northern part of the shore area as against only 6 day summer deliveries in the southern part of the shore area; the reasonableness of allowing Sunday winter deliveries in the shore area while not permitting it anywhere else in the state in winter; and the reasonableness of excluding the shore area from the provision for relaxation in particular cases because of hardship."

At the hearing, very little new factual material was introduced. Representatives of the Milk Dealers Association of Northern New Jersey, the South Jersey Milk Dealers Association, and the Dairy Processors and Handlers of New Jersey, Incorporated, testified generally with respect to Sunday wholesale deliveries. The sum of their assertions was that such deliveries are not necessary except in the summer months, that they burdened the industry with excessive expense without an appreciable increase in sales, that only a few dealers in fact deliver on Sunday, and that a restriction on that day serves the cause of the consumer and the industry. All of them suggested that in the interest of uniformity, F-22 be revised to ban Sunday wholesale deliveries everywhere in the State except during the summer period. At the conclusion of the hearing, there was discussion with respect to this recommendation and the Director indicated he would consider it. Counsel for plaintiff objected to any such change. But he offered no testimony with regard to it, nor did he request an adjournment of the hearing to enable him to produce any proof in addition to that which he had introduced in the earlier proceedings. Counsel was informed, however, that in deciding whether to accept the suggestion for revision, all of the testimony previously offered in plaintiff's behalf would be reviewed.

Thereafter, the Director amended F-22 as follows, to give it a uniform application throughout the State:

"1. No wholesale deliveries may be made on Sunday between September 16 in any year and June 14 in the following year."

The revision was accompanied by certain extremely general findings of fact which seemed to be designed largely to explain the reasons for the action. The effect of the change was to render unnecessary any further consideration of the appeal which had been retained by us. Plaintiff, however, being of the view that the new regulation was also invidiously discriminatory against its business and beyond the statutory authority of the Director, asked and was granted leave to attack it on the existing record, augmented by the new evidence and findings of fact. No request was made for leave to adduce further evidence in support of the claim of invalidity either before the Director or by depositions. The Attorney General having interposed no objection to the pursuit of such a course rather than the institution of an independent appeal under R.R. 4:88-8, we agreed to render a decision on that basis.

The issue thus presented is whether the Director has authority to promulgate a rule barring wholesale deliveries of milk on Sunday except in the summer season from June 15 through September 15.

The Office of Milk Industry is a creature of statutory origin. All authority possessed by it stems from that source, i.e., N.J.S.A. 4:12 A -1 et seq. It consists of the powers expressly granted which in turn are attended by those incidental powers which are reasonably necessary or appropriate to effectuate the specific delegation. Rainier's Dairies v. Raritan Valley Farms, Inc., 19 N.J. 552 (1955). Among other things, the Director is empowered to "adopt, promulgate and enforce all rules, regulations and orders necessary to carry out" the provisions of ...

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