For affirmance -- Chief Justice Weintraub, and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. For reversal -- None.
[45 NJ Page 216] This is an appeal from Order 64-1 promulgated by Floyd R. Hoffman, Director of the Office of Milk Industry, Department of Agriculture (Director), establishing
minimum resale prices for the sale of milk. The Director's Order was appealed to the Appellate Division and this Court certified the matter on its own motion before argument there. R.R. 1:10-1(a).
Much litigation has arisen out of the Milk Regulation Acts (N.J.S.A. 4:12A-1 et seq.) over the years since the passage of that act in 1941, L. 1941, c. 274, p. 713. For a recent case involving these same parties, which foresaw the suit sub judice, see Burlington Food Stores, Inc. v. Hoffman, 82 N.J. Super. 452 (App. Div. 1964). Two of the more recent cases to reach this Court are Lampert Dairy Farm, Inc. v. Hoffman, 35 N.J. 205 (1961), and Lampert Dairy Farm, Inc. v. Hoffman, 37 N.J. 598 (1962). Following the last mentioned case, Governor Hughes, on the advice of his Milk Study Committee, directed that all minimum resale prices of milk be removed. The Director complied with this directive on October 20, 1962. Thereafter, on December 5, 1962, the Legislature, responding to the imminent fear of "destructive price wars and unfair trade competition," enacted the Emergency Milk Control Law of 1962, N.J.S.A. 4:12A-59 et seq., L. 1962, c. 182 (subsequently amended on December 10, 1963, L. 1963, c. 165). This act was, by its terms, to become inoperative on March 31, 1964. N.J.S.A. 4:12A-62. The statement accompanying this statutory amendment to the 1941 act expressly indicated that the legislation was designed:
"(1) To assure to the consumer the benefits which have accrued during the past weeks as a result of fair competition by permitting the Director of the Office of Milk Industry to set price levels, based upon the sale experience of the past 30 days, below which milk and milk products could not be sold;
(2) To prevent unfair competition during the interim period of transition from the previous policy of minimum resale prices; and
(3) To provide the Office of Milk Industry with the funds and a period of time within which it can study and review the problems of the milk industry and obtain the data necessary to prevent sales of milk below cost."
In pertinent part, the amendatory language provides as follows (N.J.S.A. 4:12A-60):
"The Legislature finds and determines that there continues to exist in the milk industry certain temporary conditions which have created or have threatened to create competitive trade practices which may demoralize the price structure of milk or may demoralize the agricultural interests of the State engaged in the production of milk or may interfere with the maintenance of an ample supply of fresh, wholesome milk. The director, in order to carry out the purposes of this act, is hereby authorized, for such period or periods designated by him but not to extend beyond the date that this act becomes inoperative:
(d) To establish and adjust, from time to time, without the necessity of hearings but upon public notice, the prices below which all licensees or any class thereof may not purchase or sell milk and milk products, provided, however, except as otherwise provided herein:
(2) The resale prices so established within such range and producer prices established under this act are at a level which the director, in his opinion, determines will maintain fair price competition, help insure an ample supply of fresh, wholesome ...