Holcombe v. Georgia Milk Producers Confederation , 188 Ga. 358 ( 1939 )

Atkinson, Presiding Justice,

dissenting. It is recognized that as a health measure reasonable regulations may be enacted by the legislature, applying to sale and distribution of milk under the police power of the State. The milk-control act in question undertakes in part to do that thing. As a means of regulation section 19 of the act provides substantially that the board shall fix a price at which wholesome milk may be sold, and penalizes sale at higher or lower prices. It thus takes from the seller and purchaser the right to agree upon the price of their choice, if it be different from that fixed by the board. Agreement as to price is essentially a part of the contract. The right to contract is a property right which is protected by the due-process clauses of our State and Federal constitutions, which can not be abridged by mere legislative act. The legislative power of the General Assembly is very broad, but is not above the constitution. The police power of the State, exercisable by the General Assembly, is very broad, but not above the constitution. See Cutsinger v. Atlanta, 142 Ga. 555 (3), 571 (83 S. E. 263, L. R. A. 1915B, 1097, Ann. Cas. 1916C, 280); Carey v. Atlanta, 143 Ga. 192 (3), 201 (84 S. E. 456, L. R. A. 1915D, 684, Ann. Cas. 1916E, 1151), and cases cited in dissenting opinion in Nebbia v. New York, 291 U. S. 502 (supra). To allow abridgment of the right of individuals to contract for sale of wholesome milk, by taking from them the right to agree upon the price, would be to put legislation, whether enacted in exercise of claimed general or police power of the legislature, above the constitution. In this view so much of the act in question as attempts to fix the price at which wholesome milk may be sold is void as violative of the due-process clauses of State and Federal constitutions. This applies whether the fixing of price by legislative act is considered alone or in connection with a general plan to regulate sale of milk. What is said does not overlook the greater number of decisions in other jurisdictions, not binding upon this court, which take a different view, as cited in the majority opinion. There are expressions seemingly to the contrary in Bohannon v. Duncan, 185 Ga. 840 (supra), to which the writer assented; but the judgment in that case, not having been concurred in by all the Justices, is not binding on this court as a precedent; and so far as it may conflict with the views above expressed, the decision should not be followed. The writer recedes from the view then expressed, relating to fixing of price. While not material argument on the constitutional question, it is not entirely out of place to note that if the General Assembly could constitutionally fix the price at which wholesome milk must be sold, a.s provided in this act, it could constitutionally prevent an owner of one cow from giving or selling wholesome milk to his neighbor. Mr. Justice Duckworth concurs in this dissent.