Benjamin N. Cardozo

“ The present grounds of criticism will be considered one by one.
1. The statute is not invalid as an unlawful delegation of legislative power.
The General Assembly of the Commonwealth in setting up the Milk Commission did not charge it with a duty to prescribe a scale of prices in every portion of the state. The commission was to establish market areas, and with reference to each area was to determine, after a public hearing, whether there was need within such area that prices should be regulated. If it was satisfied of the need, it was to fix a scale accordingly. ”

“ If there could be any doubt about this as a matter of construction, the doubt would be dispelled by the administrative practice and by the warning of the statute, expressed in section 14, that operations in interstate commerce shall not be deemed to be affected. So also as to the requirement of a license expressed in section 4. [3] High needs a license to the extent that he sells at retail to consumers in Virginia. Highland does not need one, and the commission is not asking it to apply for one, because its business as now conducted with persons in Virginia is interstate exclusively. ”

“ Its entire output of bottled milk it sells to the other plaintiff, Luther W. High, who has retail stores in Virginia and elsewhere for the sale of ice cream, milk and other dairy products. A regulation adopted by the commission on March 27, 1936, set up a market area, described as the Arlington-Alexandria Milk Market, within which High is engaged in business. Minimum prices prescribed for that area are in excess of the prices at which Highland had been selling to High and at which High had sold to the consumers. Each went on selling at the old prices. Neither made application for a license. ”

“ But Highland is not subject to the provisions of the act, and so the Milk Commission has ruled. No matter what the definition of a distributor may be, sales are not affected by any restriction as to price unless made within the boundaries of a designated market area. The sections quoted in the margin point fairly to that conclusion. [2] Highland land in Washington may sell to High in Virginia, and High may buy from Highland, at any price they please. ”