For Modification -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hall and Haneman. Opposed -- None. The opinion of the court was delivered by Jacobs, J.
On February 3, 1965 the Division of Purchase and Property of New Jersey's Treasury Department issued a proposal for bids on a contract to supply milk to the New Jersey State Hospital, Ancora, Hammonton, New Jersey. The proposal set forth that the vendor must certify the quantity of New Jersey milk purchased by him during the preceding year and to be purchased by him during the current year in accordance with L. 1964, c. 194 (N.J.S.A. 52:25-23; N.J.S.A. 52:27B-61). That statute provides, in effect, that a seller of fresh milk to a State agency must certify that during the preceding year he purchased fresh milk produced in New Jersey in an amount at least equal to the amount being sold by him to the State agency and, in addition, must agree that during the current year he will purchase fresh milk produced in New Jersey in an amount at least equal to the amount he is selling to all New Jersey State agencies. On February 15, 1965 the plaintiff Garden State Dairies filed a complaint alleging that it operates a dairy in Bridgeton, New Jersey, engages in the sale of milk within and outside New Jersey, is unable to certify in accordance with L. 1964, c. 194, and is therefore precluded from making a bid to supply milk to the New Jersey State Hospital. The complaint seeks a declaration that L. 1964, c. 194 is unconstitutional and a restraint against the acceptance of bids.
On February 9, 1965 the Board of Education of the Township of Cinnaminson issued an invitation for bids on a contract to supply milk to the Cinnaminson public schools. The invitation set forth that, as required by State law -- L. 1964, c. 193 (N.J.S.A. 18:6-25; N.J.S.A. 18:7-64; N.J.S.A. 18:11-14), each bidder must certify that during the preceding year he purchased fresh milk produced within New Jersey at least equal in amount to the amount he seeks to sell to the school district and, in addition, agrees to purchase during the current year an amount at least equal to the amount he proposes to sell to all school districts in New Jersey. On March 1, 1965 the plaintiff filed a complaint
against the Cinnaminson Board of Education alleging that it is unable to make the certification required by the Board and seeking a declaration that L. 1964, c. 193 is unconstitutional and a restraint against the acceptance of bids. On March 8, 1965 an order was entered consolidating the actions instituted by the plaintiff.
In the trial court various interventions were permitted, answers were filed, and a motion for summary judgment was made by the plaintiff. After hearing argument, the trial judge denied the motion for summary judgment and, although no cross motions were filed by the defendants, a final judgment in their favor was entered. Notice of appeal to the Appellate Division was filed by the plaintiff and we certified on our own motion before argument there. In support of its appeal, the plaintiff has filed a brief in which it contends primarily that, although the statutes in question deal only with purchases of milk by the State itself, its agencies and political subdivisions, they nonetheless "provide for an unconstitutional restraint of interstate commerce," citing Polar Ice Cream & C.Co. v. Andrews, 375 U.S. 361, 84 S. Ct. 378, 11 L. Ed. 2 d 389 (1964), and the earlier cases referred to therein. Although Polar struck down Florida trade regulations which reserved to local producers "a substantial share of the Florida milk market" (375 U.S., at p. 375, 84 S. Ct., at p. 386, 11 L. Ed. 2 d, at p. 398), it did not deal with the extent of the power to impose conditions on those who seek to sell milk to government itself. Admittedly any private purchaser of milk is fully empowered to confine his purchases to New Jersey milk or from dealers who sell equivalent quantities of New Jersey milk; may the State as a purchaser exercise a similar power in the purchase of milk for itself? Cf. Heim v. McCall, 239 U.S. 175, 36 S. Ct. 78, 60 L. Ed. 206 (1915); Atkin v. State of Kansas, 191 U.S. 207, 24 S. Ct. 124, 48 L. Ed. 148 (1903); see Perkins v. Lukens Steel Co., 310 U.S. 113, 127, 60 S. Ct. 869, 876, 84 L. Ed. 1108, 1114 (1940); McAllister, "Court, Congress and Trade Barriers," 16 Ind. L.J. 144, 164-165 (1940)
In Atkin v. State of Kansas, supra, an eight-hour work law applying to public work was sustained; the court rested its decision on the broad ground that, where work was being performed for the state or its municipalities, "it is for the state to prescribe the conditions under which it will permit work of that kind to be done." 191 U.S., at p. 224, 24 S. Ct., at p. 28, 48 L. Ed., at p. 158. In Heim v. McCall, supra, the court sustained a New York statute which provided that, in the construction of public works, only citizens shall be employed and citizens of New York shall be given preference; the court rested its holding on the same ground as that expressed in Atkin, namely, that a state acting as employer in the construction of public works may prescribe the terms under which it will permit the labor to be performed. 239 U.S., at pp. 191-193, 36 S. Ct., at pp. 83-84, 60 L. Ed., at pp. 216-217. In Perkins v. Lukens Steel Co., supra, a Supreme Court opinion which recognized the power of the United States to impose conditions upon suppliers who dealt with it, both Atkin and Heim were cited by Justice Black for the proposition that "Like private individuals and businesses, the Government enjoys the unrestricted power to produce its own supplies, to determine those with whom it will deal, and to fix the terms and conditions upon which it will make needed purchases." 310 U.S., at p. 127, 60 S. Ct., at p. 876, 84 L. Ed., at p. 1114.
In an article written shortly after Heim was decided, Thomas Reed Powell questioned the breadth of its view that a state has unlimited power in the selection of employees on its public works. See Powell, "The Right to Work for the State," 16 Colum. L. Rev. 99 (1916). He pointed out that the fourteenth amendment does set limits (cf. Wieman v. Updegraff, 344 U.S. 183, 73 S. Ct. 215, 97 L. Ed. 216 (1952)) and he urged that an exclusion of aliens on public works could stand only if it could meet the test of reasonable relation to the public welfare. See Note, "Constitutionality of Restrictions on Aliens' Right to Work," 57 Colum. L. Rev. 1012, 1017 (1957); cf. Department of Labor and Industry v.
Cruz, 45 N.J. 372, 374 (1965); Takahashi v. Fish and Game Commission, 334 U.S. 410, 419-420, 68 S. Ct. 1138, 1142-1143, 92 L. Ed. 1478, 1487 (1948). We need not pursue this issue for here we are not concerned with an arbitrary discrimination against a class or with a restriction unrelated to the State's proper concerns; admittedly the statutes being attacked by the plaintiff apply only to those who seek to sell milk to government itself and apply with complete equality to all of them; and the State's regulation of the production and distribution of milk has long been recognized as intimately identified with the public welfare. See National Dairy Products Corp. v. Hoffman, 40 N.J. 475, 487 (1963); Abbotts Dairies, Inc. v. Armstrong, 14 N.J. 319 (1954); State Board of Milk Control v. Newark Milk Co., 118 N.J. Eq. 504 (E. & A. 1935).
The record before us indicates that during the past decade the costs of local dairy farmers have increased while the prices received by them have shown some general decline. During the same period there has been a sharp reduction in the total number of dairy farms. The goal has been to secure a sound local dairy farm industry as an essential for the welfare of the people of the State. With that public goal in mind, Chapters 193 and 194 of the Laws of 1964 were enacted so as to insure to New Jersey farmers a market at least equivalent to the milk being purchased by the State itself and its subdivisions. The legislative purpose was neither unworthy nor unreasonable and the legislation was not unlike the many state enactments throughout the country which have historically favored local products on public works and in public purchases. See Schrey v. Allison Steel Mfg. Co., 75 Ariz. 282, 255 P. 2 d 604 (1953); City and County of Denver v. Bossie, 83 Colo. 329, 266 P. 214 (1928); State v. Senatobia Blank Book & ...