Chas. Uhden, Inc. v. Greenough ( 1935 )

The majority opinion affirms the order of the trial court. I concur in the affirmance, for the following somewhat alternative reasons:

(1) If it be said, as it may be said, that the act, on its face, did not purport to fix prices, then the director of agriculture has exceeded his authority in promulgating the order complained of.

(2) On the other hand, if it be said, as it has been argued, that the director has the authority under the act to fix prices, then, in my opinion, there are at least two conclusive answers to the contention: (a) It is the firmly established common law right of the individual to sell his commodities or his services at whatever prices that he and his purchasers may agree upon. If the individual is to be deprived of this common law right, it must be by a statute that clearly and unequivocally expresses that intention. Section 7 of the act, upon which reliance for the exercise of that power is rested, is too vague and inferential to support any conclusion having such sweeping and well-nigh revolutionary changes in traditional concepts of the law. (b) The act is an unauthorized delegation of legislative power. It is, in effect, an abdication of power. It tells the director to make such rules and adopt such standards as he may see fit, in order to bring about conditions obtaining in the basic, or pre-war, period, August, 1909 — July, 1914. The legislature has not fixed any standard at all; it has merely expressed a hope that the genius of the director may in some way devise one. If the legislature may legally invest a director with such power in a few things, it may constitute a dictator with similar powers in all things.