Franklin v. State Ex Rel. Alabama State Milk Control Board

It is my judgment that said Milk Control Board Act (Act No. 163, Gen. Acts 1935, pp. 204-220) is subject to all the vices pointed out in State v. Goldstein, 207 Ala. 569, 93 So. 308, State v. Curran, 220 Ala. 4, 124 So. 909, and A. L. A. Schechter Poultry Corp. et al. v. United States, 295 U.S. 495,55 S. Ct. 837, 79 L. Ed. 1570, 97 A.L.R. 947. It destroys the liberty of the citizen to contract with reference to his own property, to engage in the purchase and sale of the most common articles of food, although all the necessary health regulations are fully complied with. And section 13 of the act prohibits all persons not engaged in the milk business at the time the act goes into effect, from entering into such business.

The act, as appears on its face, was passed as an emergency law, when, in fact, it is designed to permanently dominate and control milk producing and selling. If the Legislature has the power to regulate private businesses, not hurtful to public morals or public health, why the necessity to declare an emergency? Emergencies do not suspend the Constitution or remove the citizen from its protection. To adopt the language approved by this court, speaking through Stone, J., " 'Believing, as I do, that the success of free institutions depends on a rigid adherence to the fundamental law, I have never yielded to considerations of expediency in expounding it. There is always some plausible reason for the latitudinarian constructions which are resorted to for the purpose of acquiring power — some evil to be avoided, or some good to be attained, by pushing the powers of the government beyond their legitimate boundary. It is by yielding to such influences that constitutions are gradually undermined, and finally overthrown. My rule has ever been to follow the fundamental law as it is written, regardless of consequences. * * * If the legislature or the courts undertake to cure defects by forced and unnatural constructions, they inflict a wound upon the constitution which nothing can heal. One step taken by the legislature or the judiciary, in enlarging the powers of the government, opens the door for another, which will be sure to follow; and so the process goes on, until all respect for the fundamental law is lost, and the powers of the government are just what those in authority please to call them.' Sadler v. Langham, 34 Ala. 311, 335." In re Opinions of the Justices (In re Income Tax Enabling Act), 227 Ala. 291, 295, 149 So. 776, 780.

I do not agree with my brothers that said act does not violate the Constitution, both State and Federal.

If the Legislature may delegate to a bureau or board the power to fix the price and control the sale of milk, it can also exercise the same control, and in the same way, over butter, bacon, bread, eggs, potatoes, and other necessary articles of food.

Under the recent ruling of this court, whether or not such emergency exists, as is declared in the act, is a justiciable issue, and on proper pleading may be litigated in this case. Mutual Building Loan Ass'n v. Moore, Adm'r, ante, p. 488,169 So. 1.

I therefore respectfully dissent.