[98 NJSuper Page 111] This action is presently before the court on remand from the Supreme Court of New Jersey. Garden State Dairies of Vineland, Inc. v. Sills, 46 N.J. 349 (1966). The purpose of the remand is to receive testimony and to
make certain findings concerning N.J.S.A. 52:25-23 and N.J.S.A. 18:7-64. The facts and history of the case are basically as set forth below.
On February 3, 1965 a proposal for bids on a contract to supply milk to the New Jersey State Hospital, Ancora, Hammonton, New Jersey, was issued. The proposal set forth that the prospective vendor must certify the quantity of New Jersey produced milk purchased by him during the preceding year and during the current year, in accordance with the terms of N.J.S.A. 52:25-23 concerning bids for milk contracts of state agencies. On February 9, 1965 the Board of Education of Cinnaminson Township issued an invitation for bids on a contract to supply milk to the schools of that township. The invitation set forth these same certification requirements as provided for by N.J.S.A. 18:7-64 concerning bids for milk contracts of school districts. Basically, both statutes set forth the conditions which dealers in fluid milk must meet in order to be eligible to bid on contracts for the supply of milk to state agencies and school districts. They require that each vendor certify in writing that he purchased during the immediately preceding year fresh milk produced in this State at least equal in amount to that which he seeks to furnish under the contract for which he is bidding. In addition, he must certify that during the year in which he proposes to furnish such milk to state agencies or school districts he will purchase an amount of fresh milk produced within this State at least equivalent to that which he proposes to furnish to the using agency or school district. Desirous of bidding for the aforementioned milk contracts but unable to meet the certification requirement as to the preceding year, plaintiff Garden State Dairies filed in the Superior Court, Chancery Division, this action seeking a declaration that these two statutes are unconstitutional.
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, plaintiff's
motion for summary judgment was denied and, on the court's own motion, summary judgment was entered in favor of defendants. While an appeal was pending in the Appellate Division, but before oral argument, the Supreme Court of New Jersey on its own motion granted certification. Before the Supreme Court plaintiff argued that the statutes in question provided for an unconstitutional restraint of interstate commerce. In answer to this argument the Supreme Court held that:
"In the absence of an affirmative showing of undue burden, this traditional and highly limited type of local preferment * * * cannot fairly be said to present the balkanizing evils sought to be guarded against by the commerce clause." (46 N.J., at p. 358; emphasis supplied)
Since the record was not sufficiently complete to determine whether interstate commerce was being unduly burdened, the court remanded the case for the taking of further testimony on this question and for conclusions in accord with that testimony.
Plaintiff also argued that enactment of these statutes constituted an invalid exercise of the police power. So far as that provision requiring certification that the milk dealer would purchase from New Jersey farmers an amount of milk equal to that called for in the contract during the contract year, the court held:
"The legislative goal, which we consider to be constitutionally permissible under our own constitution as well as under the fourteenth amendment [cases cited], was to aid in securing a sound local dairy farm industry in furtherance of the public welfare, by insuring to New Jersey farmers a market at least equivalent to the milk being purchased by the State itself and its subdivisions." (at p. 359; emphasis supplied)
As to the certification requirement for the preceding year, plaintiff argued it to be oppressive and unreasonable; defendants urged that this ...