Van Winkle v. Fred Meyer, Inc. , 151 Or. 455 ( 1935 )

Having reached the conclusion that chapter 37, Oregon Laws, Second Special Session, 1933, as amended by chapter 250, Oregon Laws, 1935, is unconstitutional on the ground that it is an unwarranted delegation of legislative authority, it becomes, in my opinion, unnecessary to determine the question of whether or not the legislature can constitutionally enact laws having for their purpose the fixing of prices for farm products. Neither the 1933 enactment nor the amendment thereof in 1935 attempted to fix prices at which any agricultural product might be sold. This price feature was brought into the case by the state marketing agreement regulating the sale of ice cream and was, as held in the foregoing opinion, an attempt to confer legislative authority upon a group engaged in marketing certain agricultural products.

In the case of Nebbia v. People of the State of New York,291 U.S. 502 (54 S. Ct. 505, 78 L. Ed. 950, 89 A.L.R. 1469), the supreme court of the United States by a five to four decision upheld the order of the milk control board, acting under the sanction of state legislation, fixing milk prices. The decision therein was followed by the supreme court of appeals of Virginia, in a four to three decision on rehearing, in which the action of the milk commission created under legislation of that state, fixing the price at which milk could be sold, was upheld:Reynolds v. Milk Commission of Virginia, 163 Va. 957 (179 S.E. 507). As bearing upon the question of the right of a state to regulate business in the interest of the public, see Munn v.Illinois, 94 U.S. 113 (24 L. Ed. 77), and German AllianceInsurance Company v. Lewis, 233 U.S. 389 (58 L. Ed. 1011,34 S. Ct. 612, L.R.A. 1915C, 1189).

As to future legislation seeking to remedy present ills, we do not know what course the legislature may take or what subjects it may cover in an effort to bring about desired economic adjustments. We therefore ought not to attempt to broaden our decision beyond the necessities of the case now before us. For the reasons hereinbefore expressed, I am unwilling to concur in that part of the opinion which declares illegal any legislation fixing the price of agricultural products.