U.S. Supreme Court Nebbia v. New York, 291
U.S. 502 (1934) Nebbia v. New York No. 531 Argued December 4, 5,
1933 Decided March 5, 1934 291
U.S. 502 APPEAL FROM THE COUNTY COURT OF
MONROE COUNTY, NEW YORK Syllabus 1. As a basis for attacking a discriminatory regulation of
prices, under the equal protection clause of the Fourteenth
Amendment, the party complaining must show that he himself is
adversely affected by it. P. 291 U. S.
520 .

															2. A regulation fixing the price at which storekeepers may buy
milk from milk dealers at a higher figure than that allowed dealers
in buying from producers, and allowing dealers a higher price than
it allows storekeepers in sales to consumers, held consistent with the equal protection clause of the Fourteenth
Amendment because of the distinctions between the two classes of
merchants. P. 291 U. S.
521 .

															3. As part of a plan to remedy evils in the milk industry which
reduced the income of the producer below cost of production and
threatened to deprive the community of an assured supply of milk, a
New York statute sought to prevent destructive price-cutting by
stores which, under the peculiar circumstances, were able to buy at
much lower prices than the larger distributors and to sell without
incurring delivery costs, and, to that end, an order of a state
board acting under the statute fixed a minimum price of ten cents
per quart for sales by distributors to consumers and of nine cents
per quart for sales by stores to consumers. Held that, as
applied to a storekeeper, the regulation could not be adjudged in
conflict with the due process clause of the Fourteenth Amendment,
since, in view of the facts set forth in the opinion, it appeared
not to be unreasonable or arbitrary or without relation to the
purpose of the legislation. Pp. 291 U. S. 530 et seq. 4. The use of private property and the making of private
contracts are, as a general rule, free from governmental
interference; but they are subject to public regulation when the
public need requires. P. 291 U. S.
523 .

															5. The due process clause of the Fourteenth Amendment conditions
the exertion of regulatory power by requiring that the end shall be
accomplished by methods consistent with due process, that the
regulation shall not be unreasonable, arbitrary or capricious, and
that the means selected shall have a real and substantial relation
to the object sought to be attained. P. 291 U. S.
525 . Page 291 U. S. 503 6. It results that a regulation valid for one sort of business,
or in given circumstances, may be invalid for another sort, or for
the same business under other circumstances, because the
reasonableness of each regulation depends upon the relevant facts.
P. 291 U. S.
525 .

															7. The power of a State to regulate business in the public
interest extends to the control and regulation of prices for which
commodities may be sold, where price regulation is a reasonable and
appropriate means of rectifying the evil calling for the
regulation. Pp. 291 U. S. 531 et seq. 8. There is no principle limiting price regulation to businesses
which are public utilities, or which have a monopoly or enjoy a
public grant or franchise. Munn v. Illinois, 94 U. S.
113 . P. 291 U. S.
531 .

															9. To say that property is "clothed with a public interest," or
an industry is "affected with a public interest," means that the
property or the industry, for adequate reason, is subject to
control for the public good. Pp. 291 U. S.
531 -536.

															10. There is no closed class or category of businesses affected
with a public interest, and the function of courts in the
application of the Fifth and Fourteenth Amendments is to determine
in each case whether circumstances vindicate the challenged
regulation as a reasonable exertion of governmental authority or
condemn it as arbitrary or discriminatory. P. 291 U. S.
536 .

															11. Decisions denying the power to control prices in businesses
found not to be "affected with a public interest" or "clothed with
a public use" must rest finally upon the basis that the
requirements of due process were not met because the laws were
found arbitrary in their operation and effect. P. 291 U. S.
536 .

															12. So far as the requirement of due process is concerned, and
in the absence of other constitutional restriction, a State is free
to adopt whatever economic policy may reasonably be deemed to
promote public welfare, and to enforce that policy by legislation
adapted to its purpose. The courts are without authority either to
declare such policy, or, when it is declared by the legislature, to
override it. If the laws passed are seen to have a reasonable
relation to a proper legislative purpose, and are neither arbitrary
nor discriminatory, the requirements of due process are satisfied,
and judicial determination to that effect renders a court functus officio. P. 291 U. S.
503 .

															13. The legislature is primarily the judge of the necessity of
such an enactment; every possible presumption is in favor of its
validity, and though the court may think the enactment unwise, it
may not be annulled unless palpably in excess of legislative power.
P. 291 U. S.
537 . Page 291 U. S. 504 14. If the lawmaking body, within its sphere of government,
concludes that the conditions or practices in an industry make
unrestricted competition an inadequate safeguard of the consumer's
interests, produce waste harmful to the public, threaten ultimately
to cut off the supply of a commodity needed by the public, or
portend the destruction of the industry itself, appropriate
statutes passed in an honest effort to correct the threatened
consequences may not be set aside because the regulation adopted
fixes prices -- reasonably deemed by the legislature to be fair to
those engaged in the industry and to the consuming public. P. 291 U. S.
538 .

															15. This is especially clear where the economic maladjustment is
one of price, which threatens harm to the producer at one end of
the series, and the consumer, at the other. P. 291 U. S.
538 .

															16. The Constitution does not secure to anyone liberty to
conduct his business in such fashion as to inflict injury upon the
public at large, or upon any substantial group of people. P. 291 U. S.
539 .

															17. Price control, like any other form of regulation, is
unconstitutional only if arbitrary, discriminatory, or demonstrably
irrelevant to the policy the legislature is free to adopt, and
hence an unnecessary and unwarranted interference with individual
liberty. P. 291 U. S.
539 .

															262 N.Y. 259; 186 N.E. 694, affirmed.

															The New York Court of Appeals affirmed the conviction of a
storekeeper for selling milk at a price below that allowed by an
order promulgated by a state board pursuant to statutory authority.
The appeal here is from the judgment of the County Court entered on
remittitur. Page 291 U. S. 515 MR. JUSTICE ROBERTS delivered the opinion of the Court.

															The Legislature of New York established, by Chapter 158 of the
Laws of 1933, a Milk Control Board with power, among other things,
to "fix minimum and maximum . . . retail prices to be charged by .
. . stores to consumers for consumption off the premises where
sold." The Board fixed nine cents as the price to be charged by a
store for a quart of milk. Nebbia, the proprietor of a grocery
store in Rochester, sold two quarts and a five cent loaf of bread
for eighteen cents, and was convicted for violating the Board's
order. At his trial, he asserted the statute and order contravene
the equal protection clause and the due process clause of the
Fourteenth Amendment, and renewed the contention in successive
appeals to the county court and the Court of Appeals. Both
overruled his claim and affirmed the conviction. [ Footnote 1 ]

															The question for decision is whether the Federal Constitution
prohibits a state from so fixing the selling price of milk. We
first inquire as to the occasion for the legislation, and its
history.

															During 1932, the prices received by farmers for milk were much
below the cost of production. The decline in prices during 1931 and
1932 was much greater than that of prices generally. The situation
of the families of dairy producers had become desperate, and called
for state aid similar to that afforded the unemployed, if
conditions should not improve. Page 291 U. S. 516 On March 10, 1932, the senate and assembly resolved

															"That a joint Legislative committee is hereby created . . . to
investigate the causes of the decline of the price of milk to
producers and the resultant effect of the low prices upon the dairy
industry and the future supply of milk to the cities of the State;
to investigate the cost of distribution of milk and its relation to
prices paid to milk producers, to the end that the consumer may be
assured of an adequate supply of milk at a reasonable price, both
to producer and consumer."

															The committee organized May 6, 1932, and its activities lasted
nearly a year. It held 13 public hearings at which 254 witnesses
testified and 2,350 typewritten pages of testimony were taken.
Numerous exhibits were submitted. Under its direction, an extensive
research program was prosecuted by experts and official bodies and
employees of the state and municipalities, which resulted in the
assembling of much pertinent information. Detailed reports were
received from over 100 distributors of milk, and these were
collated, and the information obtained analyzed. As a result of the
study of this material, a report covering 473 closely printed
pages, embracing the conclusions and recommendations of the
committee, was presented to the legislature April 10, 1933. This
document included detailed findings, with copious references to the
supporting evidence; appendices outlining the nature and results of
prior investigations of the milk industry of the state, briefs upon
the legal questions involved, and forms of bills recommended for
passage. The conscientious effort and thoroughness exhibited by the
report lend weight to the committee's conclusions.

															In part, those conclusions are:

															Milk is an essential item of diet. It cannot long be stored. It
is an excellent medium for growth of bacteria. These facts
necessitate safeguards in its production and handling for human
consumption which greatly increase Page 291 U. S. 517 the cost of the business. Failure of producers to receive a
reasonable return for their labor and investment over an extended
period threaten a relaxation of vigilance against
contamination.

															The production and distribution of milk is a paramount industry
of the state, and largely affects the health and prosperity of its
people. Dairying yields fully one-half of the total income from all
farm products. Dairy farm investment amounts to approximately
$1,000,000,000. Curtailment or destruction of the dairy industry
would cause a serious economic loss to the people of the state.

															In addition to the general price decline, other causes for the
low price of milk include: a periodic increase in the number of
cows and in milk production; the prevalence of unfair and
destructive trade practices in the distribution of milk, leading to
a demoralization of prices in the metropolitan area and other
markets, and the failure of transportation and distribution charges
to be reduced in proportion to the reduction in retail prices for
milk and cream.

															The fluid milk industry is affected by factors of instability
peculiar to itself which call for special methods of control. Under
the best practicable adjustment of supply to demand, the industry
must carry a surplus of about 20 percent, because milk, an
essential food, must be available as demanded by consumers every
day in the year, and demand and supply vary from day to day and
according to the season; but milk is perishable, and cannot be
stored. Close adjustment of supply to demand is hindered by several
factors difficult to control. Thus, surplus milk presents a serious
problem, as the prices which can be realized for it for other uses
are much less than those obtainable for milk sold for consumption
in fluid form or as cream. A satisfactory stabilization of prices
for fluid milk requires that the burden of surplus milk be shared
equally by all producers and all distributors in the milkshed. Page 291 U. S. 518 So long as the surplus burden is unequally distributed, the
pressure to market surplus milk in fluid form will be a serious
disturbing factor. The fact that the larger distributors find it
necessary to carry large quantities of surplus milk, while the
smaller distributors do not, leads to price-cutting and other forms
of destructive competition. Smaller distributors, who take no
responsibility for the surplus, by purchasing their milk at the
blended prices ( i.e., an average between the price paid
the producer for milk for sale as fluid milk, and the lower surplus
milk price paid by the larger organizations) can undersell the
larger distributors. Indulgence in this price-cutting often compels
the larger dealer to cut the price, to his own and the producer's
detriment.

															Various remedies were suggested, amongst them united action by
producers, the fixing of minimum prices for milk and cream by state
authority, and the imposition of certain graded taxes on milk
dealers proportioned so as to equalize the cost of milk and cream
to all dealers, and so remove the cause of price-cutting.

															The legislature adopted Chapter 158 as a method of correcting
the evils, which the report of the committee showed could not be
expected to right themselves through the ordinary play of the
forces of supply and demand, owing to the peculiar and
uncontrollable factors affecting the industry. The provisions of
the statute are summarized in the margin. [ Footnote 2 ] Page 291 U. S. 519 Section 312(e), on which the prosecution in the present case is
founded, provides:

															"After the board shall have fixed prices to be charged or paid
for milk in any form Page 291 U. S. 520 . . . , it shall be unlawful for a milk dealer to sell or buy or
offer to sell or buy milk at any price less or more than such price
. . . , and no method or device shall be lawful whereby milk is
bought or sold . . . at a price less or more than such price . . .
, whether by any discount, or rebate, or free service, or
advertising allowance, or a combined price for such milk together
with another commodity or commodities, or service or services,
which is less or more than the aggregate of the prices for the milk
and the price or prices for such other commodity or commodities, or
service or services, when sold or offered for sale separately or
otherwise. . . ." First. The appellant urges that the order of the Milk
Control Board denies him the equal protection of the laws. It is
shown that the order requires him, if he purchases his supply from
a dealer, to pay eight cents per quart and Page 291 U. S. 521 five cents per pint, and to resell at not less than nine and
six, whereas the same dealer may buy his supply from a farmer at
lower prices and deliver milk to consumers at ten cents the quart
and six cents the pint. We think the contention that the
discrimination deprives the appellant of equal protection is not
well founded. For aught that appears, the appellant purchased his
supply of milk from a farmer as do distributors, or could have
procured it from a farmer, if he so desired. There is therefore no
showing that the order placed him at a disadvantage, or, in fact,
affected him adversely, and this alone is fatal to the claim of
denial of equal protection. But if it were shown that the appellant
is compelled to buy from a distributor, the difference in the
retail price he is required to charge his customers, from that
prescribed for sales by distributors, is not, on its face,
arbitrary or unreasonable, for there are obvious distinctions
between the two sorts of merchants which may well justify a
difference of treatment, if the legislature possesses the power to
control the prices to be charged for fluid milk. Compare
American Sugar Refining Co. v. Louisiana, 179 U. S.
89 ; Brown-Forman Co. v. Kentucky, 217 U.
S. 563 ; State Board of Tax Commissioners v.
Jackson, 283 U. S. 527 . Second. The more serious question is whether, in the
light of the conditions disclosed, the enforcement of § 312(e)
denied the appellant the due process secured to him by the
Fourteenth Amendment.

															Save the conduct of railroads, no business has been so
thoroughly regimented and regulated by the State of New York as the
milk industry. Legislation controlling it in the interest of the
public health was adopted in 1862, [ Footnote 3 ] and subsequent statutes [ Footnote 4 ] have been carried into the general Page 291 U. S. 522 codification known as the Agriculture and Markets Law. [ Footnote 5 ] A perusal of these statutes
discloses that the milk industry has been progressively subjected
to a larger measure of control. [ Footnote 6 ] The producer or dairy farmer is in certain
circumstances liable to have his herd quarantined against bovine
tuberculosis; is limited in the importation of dairy cattle to
those free from Bang's disease; is subject to rules governing the
care and feeding of his cows and the care of the milk produced, the
condition and surroundings of his barns and buildings used for
production of milk, the utensils used, and the persons employed in
milking (§§ 46, 47, 55, 72-88). Proprietors of milk gathering
stations or processing plants are subject to regulation (§ 54), and
persons in charge must operate under license and give bond to
comply with the law and regulations; must keep records, pay
promptly for milk purchased, abstain from false or misleading
statements and from combinations to fix prices (§§ 57, 57a, 252).
In addition, there is a large volume of legislation intended to
promote cleanliness and fair trade practices, affecting all who are
engaged in the industry. [ Footnote
7 ] The challenged amendment Page 291 U. S. 523 of 1933 carried regulation much farther than the prior
enactments. Appellant insists that it went beyond the limits fixed
by the Constitution.

															Under our form of government, the use of property and the making
of contracts are normally matters of private, and not of public,
concern. The general rule is that both shall be free of
governmental interference. But neither property rights [ Footnote 8 ] nor contract rights
[ Footnote 9 ] are absolute, for
government cannot exist if the citizen may at will use his property
to the detriment of his fellows, or exercise his freedom of
contract to work them harm. Equally fundamental with the private
right is that of the public to regulate it in the common interest.
As Chief Justice Marshall said, speaking specifically of inspection
laws, such laws form

															"a portion of that immense mass of legislation which embraces
every thing within the territory of a State . . . , all which can
be most advantageously exercised by the States themselves.
Inspection laws, quarantine laws, health laws of every description,
as well as laws for regulating the internal commerce of a State . .
. are component parts of this mass. [ Footnote 10 ]"

															Justice Barbour said for this court:

															". . . it is not only the right, but the bounden and solemn
duty, of a state to advance the safety, happiness and prosperity of
its people, and to provide for its general welfare by any and every
act of legislation which it may deem to be conducive to these ends
where the power over the particular subject, or the manner of its
exercise, is not surrendered or restrained, in the manner just
stated. Page 291 U. S. 524 That all those powers which relate to merely municipal
legislation, or what may, perhaps, more properly be called internal police, are not thus surrendered or restrained,
and that, consequently, in relation to these, the authority of a
state is complete, unqualified, and exclusive. [ Footnote 11 ]"

															And Chief Justice Taney said upon the same subject:

															"But what are the police powers of a State? They are nothing
more or less than the powers of government inherent in every
sovereignty to the extent of its dominions. And whether a State
passes a quarantine law, or a law to punish offences, or to
establish courts of justice, or requiring certain instruments to be
recorded, or to regulate commerce within its own limits, in every
case, it exercises the same powers -- that is to say, the power of
sovereignty, the power to govern men and things within the limits
of its dominion. It is by virtue of this power that it legislates,
and its authority to make regulations of commerce is as absolute as
its power to pass health laws, except insofar as it has been
restricted by the constitution of the United States. [ Footnote 12 ]"

															Thus has this court, from the early days, affirmed that the
power to promote the general welfare is inherent in government.
Touching the matters committed to it by the Constitution, the
United States possesses the power, [ Footnote 13 ] as do the states in their sovereign capacity
touching all subjects jurisdiction of which is not surrendered to
the federal government, as shown by the quotations above given.
These correlative rights, that of the citizen to exercise exclusive
dominion over property and freely to contract about his affairs and
that of the state to regulate the use of property and the conduct
of business, are always in collision. No exercise of the private
right can be Page 291 U. S. 525 imagined which will not in some respect, however slight, affect
the public; no exercise of the legislative prerogative to regulate
the conduct of the citizen which will not to some extent abridge
his liberty or affect his property. But, subject only to
constitutional restraint, the private right must yield to the
public need.

															The Fifth Amendment, in the field of federal activity, [ Footnote 14 ] and the Fourteenth, as
respects state action, [ Footnote
15 ] do not prohibit governmental regulation for the public
welfare. They merely condition the exertion of the admitted power
by securing that the end shall be accomplished by methods
consistent with due process. And the guaranty of due process, as
has often been held, demands only that the law shall not be
unreasonable, arbitrary or capricious, and that the means selected
shall have a real and substantial relation to the object sought to
be attained. It results that a regulation valid for one sort of
business, or in given circumstances, may be invalid for another
sort or for the same business under other circumstances, because
the reasonableness of each regulation depends upon the relevant
facts.

															The reports of our decisions abound with cases in which the
citizen, individual or corporate, has vainly invoked the Fourteenth
Amendment in resistance to necessary and appropriate exertion of
the police power.

															The court has repeatedly sustained curtailment of enjoyment of
private property in the public interest. The owner's rights may be
subordinated to the needs of other private owners whose pursuits
are vital to the paramount interests of the community. [ Footnote 16 ] The state may control
the Page 291 U. S. 526 use of property in various ways; may prohibit advertising
billboards except of a prescribed size and location, [ Footnote 17 ] or their use for
certain kinds of advertising; [ Footnote 18 ] may in certain circumstances authorize
encroachments by party walls in cities; [ Footnote 19 ] may fix the height of buildings, the
character of materials, and methods of construction, the adjoining
area which must be left open, and may exclude from residential
sections offensive trades, industries and structures likely
injuriously to affect the public health or safety; [ Footnote 20 ] or may establish zones within
which certain types of buildings or businesses are permitted and
others excluded. [ Footnote
21 ] And although the Fourteenth Amendment extends protection to
aliens as well as citizens, [ Footnote 22 ] a state may for adequate reasons of policy
exclude aliens altogether from the use and occupancy of land.
[ Footnote 23 ]

															Laws passed for the suppression of immorality, in the interest
of health, to secure fair trade practices, and to safeguard the
interests of depositors in banks, have been found consistent with
due process. [ Footnote 24 ]
These measures not Page 291 U. S. 527 only affected the use of private property, but also interfered
with the right of private contract. Other instances are numerous
where valid regulation has restricted the right of contract, while
less directly affecting property rights. [ Footnote 25 ]

															The Constitution does not guarantee the unrestricted privilege
to engage in a business or to conduct it as one Page 291 U. S. 528 pleases. Certain kinds of business may be prohibited; [ Footnote 26 ] and the right to
conduct a business, or to pursue a calling, may be conditioned.
[ Footnote 27 ] Regulation of
a business to prevent waste of the state's resources may be
justified. [ Footnote 28 ] And
statutes prescribing the terms upon which those conducting certain
businesses may contract, or imposing terms if they do enter into
agreements, are within the state's competency. [ Footnote 29 ] Page 291 U. S. 529 Legislation concerning sales of goods, and incidentally
affecting prices, has repeatedly been held valid. In this class
fall laws forbidding unfair competition by the charging of lower
prices in one locality than those exacted in another, [ Footnote 30 ] by giving trade
inducement to purchasers, [ Footnote 31 ] and by other forms of price discrimination.
[ Footnote 32 ] The public
policy with respect to free competition has engendered state and
federal statutes prohibiting monopolies, [ Footnote 33 ] which have been upheld. On the other
hand, where the policy of the state dictate that a monopoly should
be granted, statutes having that effect have been held inoffensive
to the constitutional guarantees. [ Footnote 34 ] Moreover, the state or a municipality may
itself enter into business in competition with private proprietor,
and thus effectively Page 291 U. S. 530 although indirectly control the prices charged by them.
[ Footnote 35 ]

															The milk industry in New York has been the subject of
longstanding and drastic regulation in the public interest. The
legislative investigation of 1932 was persuasive of the fact that,
for this and other reasons, unrestricted competition aggravated
existing evils, and the normal law of supply and demand was
insufficient to correct maladjustments detrimental to the
community. The inquiry disclosed destructive and demoralizing
competitive conditions and unfair trade practices which resulted in
retail price-cutting and reduced the income of the farmer below the
cost of production. We do not understand the appellant to deny
that, in these circumstances, the legislature might reasonably
consider further regulation and control desirable for protection of
the industry and the consuming public. That body believed
conditions could be improved by preventing destructive
price-cutting by stores which, due to the flood of surplus milk,
were able to buy at much lower prices than the larger distributors
and to sell without incurring the delivery costs of the latter. In
the order of which complaint is made, the Milk Control Board fixed
a price of ten cents per quart for sales by a distributor to a
consumer, and nine cents by a store to a consumer, thus recognizing
the lower costs of the store and endeavoring to establish a
differential which would be just to both. In the light of the
facts, the order appears not to be unreasonable or arbitrary, or
without relation to the purpose to prevent ruthless competition
from destroying the wholesale price structure on which the farmer
depends for his livelihood, and the community for an assured supply
of milk. Page 291 U. S. 531 But we are told that, because the law essays to control prices,
it denies due process. Notwithstanding the admitted power to
correct existing economic ills by appropriate regulation of
business, even though an indirect result may be a restriction of
the freedom of contract or a modification of charges for services
or the price of commodities, the appellant urges that direct
fixation of prices is a type of regulation absolutely forbidden.
His position is that the Fourteenth Amendment requires us to hold
the challenged statute void for this reason alone. The argument
runs that the public control of rates or prices is per se unreasonable and unconstitutional, save as applied to businesses
affected with a public interest; that a business so affected is one
in which property is devoted to an enterprise of a sort which the
public itself might appropriately undertake, or one whose owner
relies on a public grant or franchise for the right to conduct the
business, or in which he is bound to serve all who apply; in short,
such as is commonly called a public utility; or a business in its
nature a monopoly. The milk industry, it is said, possesses none of
these characteristics, and, therefore, not being affected with a
public interest, its charges may not be controlled by the state.
Upon the soundness of this contention the appellant's case against
the statute depends.

															We may as well say at once that the dairy industry is not, in
the accepted sense of the phrase, a public utility. We think the
appellant is also right in asserting that there is in this case no
suggestion of any monopoly or monopolistic practice. It goes
without saying that those engaged in the business are in no way
dependent upon public grants or franchises for the privilege of
conducting their activities. But if, as must be conceded, the
industry is subject to regulation in the public interest, what
constitutional principle bars the state from correcting
existing Page 291 U. S. 532 maladjustments by legislation touching prices? We think there is
no such principle. The due process clause makes no mention of sales
or of prices any more than it speaks of business or contracts or
buildings or other incidents of property. The thought seems
nevertheless to have persisted that there is something peculiarly
sacrosanct about the price one may charge for what he makes or
sells, and that, however able to regulate other elements of
manufacture or trade, with incidental effect upon price, the state
is incapable of directly controlling the price itself. This view
was negatived many years ago. Munn v. Illinois, 94 U. S. 113 . The
appellant's claim is, however, that this court, in there sustaining
a statutory prescription of charges for storage by the proprietors
of a grain elevator, limited permissible legislation of that type
to businesses affected with a public interest, and he says no
business is so affected except it have one or more of the
characteristics he enumerates. But this is a misconception. Munn and Scott held no franchise from the state.
They owned the property upon which their elevator was situated, and
conducted their business as private citizens. No doubt they felt at
liberty to deal with whom they pleased, and on such terms as they
might deem just to themselves. Their enterprise could not fairly be
called a monopoly, although it was referred to in the decision as a
"virtual monopoly." This meant only that their elevator was
strategically situated, and that a large portion of the public
found it highly inconvenient to deal with others. This court
concluded the circumstances justified the legislation as an
exercise of the governmental right to control the business in the
public interest; that is, as an exercise of the police power. It is
true that the court cited a statement from Lord Hale's De
Portibus Maris, to the effect that, when private property is
"affected with a public interest, it ceases to be juris
privati only"; but the court proceeded at once to define what
it understood by Page 291 U. S. 533 the expression, saying:

															"Property does become clothed with a public interest when used
in a manner to make it of public consequence, and affect the
community at large."

															(P. 126.) Thus, understood, "affected with a public interest" is
the equivalent of "subject to the exercise of the police power",
and it is plain that nothing more was intended by the expression.
The court had been at pains to define that power (pp. 124, 125)
ending its discussion in these words:

															"From this, it is apparent that, down to the time of the
adoption of the Fourteenth Amendment, it was not supposed that
statutes regulating the use, or even the price of the use, of
private property necessarily deprived an owner of his property
without due process of law. Under some circumstances, they may, but
not under all. The amendment does not change the law in this
particular; it simply prevents the States from doing that which
will operate as such a deprivation. [ Footnote 36 ]"

															In the further discussion of the principle, it is said that,
when one devotes his property to a use "in which the public has an
interest," he, in effect, "grants to the public an interest in that
use," and must submit to be controlled for the common good. The
conclusion is that, if Munn and Scott wished to avoid having their
business regulated, they should not have embarked their property in
an industry which is subject to regulation in the public
interest.

															The true interpretation of the court's language is claimed to be
that only property voluntarily devoted to a known public use is
subject to regulation as to rates. But obviously Munn and Scott had
not voluntarily dedicated their business to a public use. They
intended only Page 291 U. S. 534 to conduct it as private citizens, and they insisted that they
had done nothing which gave the public an interest in their
transactions or conferred any right of regulation. The statement
that one has dedicated his property to a public use is, therefore,
merely another way of saying that, if one embarks in a business
which public interest demands shall be regulated, he must know
regulation will ensue.

															In the same volume, the court sustained regulation of railroad
rates. [ Footnote 37 ] After
referring to the fact that railroads are carriers for hire, are
incorporated as such, and given extraordinary powers in order that
they may better serve the public, it was said that they are engaged
in employment " affecting the public interest," and therefore,
under the doctrine of the Munn case, subject to
legislative control as to rates. And in another of the group of
railroad cases then heard, [ Footnote 38 ] it was said that the property of railroads
is "clothed with a public interest" which permits legislative
limitation of the charges for its use. Plainly, the activities of
railroads, their charges and practices, so nearly touch the vital
economic interests of society that the police power may be invoked
to regulate their charges, and no additional formula of affection
or clothing with a public interest is needed to justify the
regulation. And this is evidently true of all business units
supplying transportation, light, heat, power and water to
communities, irrespective of how they obtain their powers.

															The touchstone of public interest in any business, its practices
and charges, clearly is not the enjoyment of any franchise from the
state, Munn v. Illinois, supra. Nor is it the enjoyment of
a monopoly; for in Brass v. Page 291 U. S. 535 North Dakota, 153 U. S. 391 , a
similar control of prices of grain elevators was upheld in spite of
overwhelming and uncontradicted proof that about six hundred grain
elevators existed along the line of the Great Northern Railroad, in
North Dakota; that, at the very station where the defendant's
elevator was located, two others operated, and that the business
was keenly competitive throughout the state.

															In German Alliance Insurance Co. v. Lewis, 233 U.
S. 389 , a statute fixing the amount of premiums for fire
insurance was held not to deny due process. Though the business of
the insurers depended on no franchise or grant from the state, and
there was no threat of monopoly, two factors rendered the
regulation reasonable. These were the almost universal need of
insurance protection and the fact that, while the insurers competed
for the business, they all fixed their premiums for similar risks
according to an agreed schedule of rates. The court was at pains to
point out that it was impossible to lay down any sweeping and
general classification of businesses as to which price-regulation
could be adjudged arbitrary or the reverse.

															Many other decisions show that the private character of a
business does not necessarily remove it from the realm of
regulation of charges or prices. The usury laws fix the price which
may be exacted for the use of money, although no business more
essentially private in character can be imagined than that of
loaning one's personal funds. Griffith v. Connecticut, 218 U. S. 563 .
Insurance agents' compensation may be regulated, though their
contracts are private, because the business of insurance is
considered one properly subject to public control. O'Gorman
& Young v. Hartford Fire Ins. Co., 282 U.
S. 251 . Statutes prescribing in the public interest the
amounts to be charged by attorneys for prosecuting certain claims,
a matter ordinarily one of personal and private nature, Page 291 U. S. 536 are not a deprivation of due process. Frisbie v. United
States, 157 U. S. 160 ; Capital Trust Co. v. Calhoun, 250 U.
S. 208 ; Calhoun v. Massie, 253 U.
S. 170 ; Newman v. Moyers, 253 U.
S. 182 ; Yeiser v. Dysart, 267 U.
S. 540 ; Margolin v. United States, 269 U. S.
93 . A stockyards corporation, "while not a common
carrier, nor engaged in any distinctively public employment, is
doing a work in which the public has an interest," and its charges
may be controlled. Cotting v. Kansas City Stockyards Co., 183 U. S. 79 , 183 U. S. 85 .
Private contract carriers, who do not operate under a franchise,
and have no monopoly of the carriage of goods or passengers, may,
since they use the highways to compete with railroads, be compelled
to charge rates not lower than those of public carriers for
corresponding services, if the state, in pursuance of a public
policy to protect the latter, so determines. Stephenson v.
Binford, 287 U. S. 251 , 287 U. S.
274 .

															It is clear that there is no closed class or category of
businesses affected with a public interest, and the function of
courts in the application of the Fifth and Fourteenth Amendments is
to determine in each case whether circumstances vindicate the
challenged regulation as a reasonable exertion of governmental
authority or condemn it as arbitrary or discriminatory. Wolff
Packing Co. v. Industrial Court, 262 U.
S. 522 , 262 U. S. 535 .
The phrase "affected with a public interest " can, in the nature of
things, mean no more than that an industry, for adequate reason, is
subject to control for the public good. In several of the decisions
of this court wherein the expressions "affected with a public
interest" and "clothed with a public use" have been brought forward
as the criteria of the validity of price control, it has been
admitted that they are not susceptible of definition and form an
unsatisfactory test of the constitutionality of legislation
directed at business practices or prices. These decisions must
rest, finally, upon the basis that the requirements of due process
were Page 291 U. S. 537 not met, because the laws were found arbitrary in their
operation and effect. [ Footnote
39 ] But there can be no doubt that, upon proper occasion and by
appropriate measures, the state may regulate a business in any of
its aspects, including the prices to be charged for the products or
commodities it sells.

															So far as the requirement of due process is concerned, and in
the absence of other constitutional restriction, a state is free to
adopt whatever economic policy may reasonably be deemed to promote
public welfare, and to enforce that policy by legislation adapted
to its purpose. The courts are without authority either to declare
such policy or, when it is declared by the legislature, to override
it. If the laws passed are seen to have a reasonable relation to a
proper legislative purpose, and are neither arbitrary nor
discriminatory, the requirements of due process are satisfied, and
judicial determination to that effect renders a court functus
officio. "Whether the free operation of the normal laws of competition is
a wise and wholesome rule for trade and commerce is an economic
question which this court need not consider or determine." Northern Securities Co. v. United States, 193 U.
S. 197 , 193 U. S.
337 -338. And it is equally clear that, if the
legislative policy be to curb unrestrained and harmful competition
by measures which are not arbitrary or discriminatory, it does not
lie with the courts to determine that the rule is unwise. With the
wisdom of the policy adopted, with the adequacy or practicability
of the law enacted to forward it, the courts are both incompetent
and unauthorized to deal. The course of decision in this court
exhibits a firm adherence to these principles. Times without
number, we have said that the legislature is primarily the judge of
the necessity of such an enactment, Page 291 U. S. 538 that every possible presumption is in favor of its validity, and
that, though the court may hold views inconsistent with the wisdom
of the law, it may not be annulled unless palpably in excess of
legislative power. [ Footnote
40 ]

															The lawmaking bodies have in the past endeavored to promote free
competition by laws aimed at trusts and monopolies. The consequent
interference with private property and freedom of contract has not
availed with the courts to set these enactments aside as denying
due process. [ Footnote 41 ]
Where the public interest was deemed to require the fixing of
minimum prices, that expedient has been sustained. [ Footnote 42 ] If the lawmaking body, within
its sphere of government, concludes that the conditions or
practices in an industry make unrestricted competition an
inadequate safeguard of the consumer's interests, [ Footnote 43 ] produce waste harmful to the
public, threaten ultimately to cut off the supply of a commodity
needed by the public, or portend the destruction of the industry
itself, appropriate statutes passed in an honest effort to correct
the threatened consequences may not be set aside because the
regulation adopted fixes prices reasonably deemed by the
legislature to be fair to those engaged in the industry and to the
consuming public. And this is especially so where, as here, the
economic maladjustment is one of price, which threatens harm to the
producer at one end of the series and the consumer at the other.
The Constitution does Page 291 U. S. 539 not secure to anyone liberty to conduct his business in such
fashion as to inflict injury upon the pubic at large, or upon any
substantial group of the people. Price control, like any other form
of regulation, is unconstitutional only if arbitrary,
discriminatory, or demonstrably irrelevant to the policy the
legislature is free to adopt, and hence an unnecessary and
unwarranted interference with individual liberty.

															Tested by these considerations, we find no basis in the due
process clause of the Fourteenth Amendment for condemning the
provisions of the Agriculture and Markets Law here drawn into
question.

															The judgment is Affirmed. [ Footnote 1 ] People v. Nebbia, 262 N.Y. 259, 186 N.E. 694.

															[ Footnote 2 ]

															Chapter 158 of the Laws of 1933 added a new Article (numbered
25) to the Agriculture and Markets Law. The reasons for the
enactment are set forth in the first section (§ 300). So far as
material they are: that unhealthful, unfair, unjust, destructive,
demoralizing and uneconomic trade practices exist in the
production, sale and distribution of milk and milk products,
whereby the dairy industry in the state and the constant supply of
pure milk to inhabitants of the state are imperiled; these
conditions are a menace to the public health, welfare and
reasonable comfort; the production and distribution of milk is a
paramount industry upon which the prosperity of the state in a
great measure depends; existing economic conditions have largely
destroyed the purchasing power of milk producers for industrial
products, have broken down the orderly production and marketing of
milk, and have seriously impaired the agricultural assets
supporting the credit structure of the state and its local
governmental subdivisions. The danger to public health and welfare
consequent upon these conditions is declared to be immediate, and
to require public supervision and control of the industry to
enforce proper standards of production, sanitation and
marketing.

															The law then (§ 301) defines the terms used; declaring, inter alia, that "milk dealer" means any person who
purchases or handles milk within the state, for sale in the state,
or sells milk within the state except when consumed on the premises
where sold, and includes within the definition of "store" a grocery
store.

															By § 302, a state Milk Control Board is established, and, by §
303, general power is conferred upon that body to supervise and
regulate the entire milk industry of the state, subject to existing
provisions of the public health law, the public service law, the
state sanitary code, and local health ordinances and regulations;
to act as arbitrator or mediator in controversies arising between
producers and dealers, or groups within those classes, and to
exercise certain special powers to which reference will be
made.

															The Board is authorized to promulgate orders and rules which are
to have the force of law (§ 304); to make investigations (§ 305);
to enter and inspect premises in which any branch of the industry
is conducted, and examine the books, papers and records of any
person concerned in the industry (§ 306); to license all milk
dealers and suspend or revoke licenses for specified causes, its
action in these respects being subject to review by certiorari (§
308), and to require licensees to keep records (§ 309) and to make
reports (§ 310).

															A violation of any provision of Article 25 or of any lawful
order of the Board is made a misdemeanor (§ 307).

															By § 312, it is enacted (a):

															"The board shall ascertain by such investigations and proofs as
the emergency permits, what prices for milk in the several
localities and markets of the state, and under varying conditions,
will best protect the milk industry in the state and insure a
sufficient quantity of pure and wholesome milk . . . and be most in
the public interest. The board shall take into consideration all
conditions affecting the milk industry including the amount
necessary to yield a reasonable return to the producer and to the
milk dealer."

															(b) After such investigation, the board shall, by official
order, fix minimum and maximum wholesale and retail prices to be
charged by milk dealers to consumers, by milk dealers to stores for
consumption on the premises or for resale to consumers, and by
stores to consumers for consumption off the premises where sold. It
is declared

															(c) that the intent of the law is that the benefit of any
advance in price granted to dealers shall be passed on to the
producer, and if the board, after due hearing, finds this has not
been done, the dealer's license may be revoked, and the dealer may
be subjected to the penalties mentioned in the Act. The board may
(d) after investigation fix the prices to be paid by dealers to
producers for the various grades and classes of milk.

															Subsection (e), on which the prosecution in the present case is
founded, is quoted in the text.

															Alterations may be made in existing orders after hearing of the
interested parties (f) and orders made are subject to review on
certiorari. The board (§ 319) is to continue with all the powers
and duties specified until March 31, 1934, at which date it is to
be deemed abolished. The Act contains further provisions not
material to the present controversy.

															[ Footnote 3 ]

															Laws of 1862, Chap. 467.

															[ Footnote 4 ]

															Laws of 1893, Chap. 338. Laws of 1909, Chap. 9; Consol.Laws,
Chap. 1.

															[ Footnote 5 ]

															Laws of 1927, Chap. 207; Cahill's Consolidated Laws of New York,
1930, Chap. 1.

															[ Footnote 6 ]

															Many of these regulations have been unsuccessfully challenged on
constitutional grounds. See People v. Cipperly, 101 N.Y.
634, 4 N.E. 107; People v. Hill, 44 Hun 472; People v.
West, 106 N.Y. 293, 12 N.E. 610; People v. Kibler, 106 N.Y. 321, 12 N.E. 795; People v. Hills, 64 App.Div.
584, 72 N.Y.S. 340; People v. Bowen, 182 N.Y. 1; 74 N.E.
489; Lieberman v. Van de Carr, 199 U.
S. 552 ; St. John v. New York, 201 U.
S. 633 ; People v. Koster, 121 App.Div. 852, 106
N.Y.S. 793; People v. Abramson, 208 N.Y. 138, 101 N.E.
849; People v. Frudenberg, 209 N.Y. 218, 103 N.E. 166; People v. Beakes Dairy Co., 222 N.Y. 416, 119 N.E. 115; People v. Teuscher, 248 N.Y. 454, 162 N.E. 484; People
v. Perretta, 253 N.Y. 305; 171 N.E. 72; People v.
Ryan, 230 App.Div. 252, 243 N.Y.S. 644; Mintz v.
Baldwin, 289 U. S. 346 .

															[ Footnote 7 ] See Cahill's Consolidated Laws of New York, 1930, and
Supplements to and including 1933: Chap. 21, §§ 270-274; Chap. 41,
§§ 435, 438, 1740, 1764, 2350-2357; Chap. 46, §§ 6-a, 20, 21.

															[ Footnote 8 ] Munn v. Illinois, 94 U. S. 113 , 94 U. S. 124 , 94 U. S. 125 ; Orient Ins. Co. v. Daggs, 172 U.
S. 557 , 172 U. S. 566 ; Northern Securities Co. v. United States, 193 U.
S. 197 , 193 U. S. 351 ,
and see the cases cited in notes 16-23 infra. [ Footnote 9 ] Allgeyer v. Louisiana, 165 U.
S. 578 , 165 U. S. 591 ; Atlantic Coast Line v. Riverside Mills, 219 U.
S. 186 , 219 U. S. 202 ; Chicago, B. & Q. R. Co. v. McGuire, 219 U.
S. 549 , 219 U. S. 567 ; Stephenson v. Binford, 287 U. S. 251 , 287 U. S.
274 .

															[ Footnote 10 ] Gibbons v.
Ogden , 9 Wheat. 1, 22 U. S. 203 .

															[ Footnote 11 ] New York v.
Miln , 11 Pet. 102, 36 U. S.
139 .

															[ Footnote 12 ] License Cases , 5 How. 504, 46 U. S.
583 [ Footnote 13 ] United States v.
Dewitt , 9 Wall. 41; Gloucester Ferry Co. v.
Pennsylvania, 114 U. S. 196 , 114 U. S.
215 .

															[ Footnote 14 ] Addyston Pipe & Steel Co. v. United States, 175 U. S. 211 , 175 U. S.
228 -229.

															[ Footnote 15 ] Barbier v. Connolly, 113 U. S. 27 , 113 U. S. 31 ; Chicago, B. & Q. R. Co. v. Drainage Comm'rs, 200 U. S. 561 , 200 U. S.
592 .

															[ Footnote 16 ] Clark v. Nash, 198 U. S. 361 ; Strickley v. Highland Boy Mining Co., 200 U.
S. 527 .

															[ Footnote 17 ] Cusack Co. v. Chicago, 242 U.
S. 526 ; St. Louis Poster Advertising Co. v. St.
Louis, 249 U. S. 269 .

															[ Footnote 18 ] Packer Corp. v. Utah, 285 U. S. 105 .

															[ Footnote 19 ] Jackman v. Rosenbaum Co., 260 U. S.
22 .

															[ Footnote 20 ] Fischer v. St. Louis, 194 U. S. 361 ; Welch v. Swasey, 214 U. S. 91 ; Hadacheck v. Sebastian, 239 U. S. 394 ; Reinman v. Little Rock, 237 U. S. 171 .

															[ Footnote 21 ] Euclid v. Ambler Realty Co., 272 U.
S. 365 ; Zahn v. Board of Public Works, 274 U. S. 325 ; Gorieb v. Fox, 274 U. S. 603 .

															[ Footnote 22 ] Yick Wo v. Hopkins, 118 U. S. 356 , 118 U. S.
369 .

															[ Footnote 23 ] Terrace v. Thompson, 263 U. S. 197 ; Webb v. O'Brien, 263 U. S. 313 .

															[ Footnote 24 ]

															Forbidding transmission of lottery tickets, Lottery
Case, 188 U. S. 321 ;
transportation of prize fight films, Weber v. Freed, 239 U. S. 325 ; the
shipment of adulterated food, Hipolite Egg Co. v. United
States, 220 U. S. 45 ;
transportation of women for immoral purposes, Hoke v. United
States, 227 U. S. 308 ; Caminetti v. United States, 242 U.
S. 470 ; transportation of intoxicating liquor, Clark
Distilling Co. v. Western Maryland Ry. Co., 242 U.
S. 311 ; requiring the public weighing of grain, Merchants Exchange v. Missouri, 248 U.
S. 365 ; regulating the size and weight of loaves of
bread, Schmidinger v. Chicago, 226 U.
S. 578 ; Petersen. Baking Co. v. Bryan, 290 U. S. 570 ;
regulating the size and character of packages in which goods are
sold, Armour & Co. v. North Dakota, 240 U.
S. 510 ; regulating sales in bulk of a stock in trade, Lemieux v. Young, 211 U. S. 489 ; Kidd, Dater & Price Co. v. Musselman Grocer Co., 217 U. S. 461 ;
sales of stocks and bonds, Hall v. Geiger-Jones Co., 242 U. S. 539 ; Merrick v. Halsey & Co., 242 U.
S. 568 ; requiring fluid milk offered for sale to be
tuberculin tested, Adams v. Milwaukee, 228 U.
S. 572 ; regulating sales of grain by actual weight, and
abrogating exchange rules to the contrary, House v. Mayes, 219 U. S. 270 ;
subjecting state banks to assessments for a state depositors'
guarantee fund, Noble State Bank v. Haskell, 219 U.
S. 104 .

															[ Footnote 25 ]

															Prescribing hours of labor in particular occupations, Holden
v. Hardy, 169 U. S. 366 ; B. & O. R. Co. v. I.C.C., 221 U.
S. 612 ; Bunting v. Oregon, 243 U.
S. 426 ; prohibiting child labor, Sturges & Burn
Co. v. Beauchamp, 231 US. 320; forbidding night work by women, Radice v. New York, 264 U. S. 292 ;
reducing hours of labor for women, Muller v. Oregon, 208 U. S. 412 ; Riley v. Massachusetts, 232 U. S. 671 ; Miller v. Wilson, 236 U. S. 373 ;
fixing the time for payment of seamen's wages, Patterson v.
Bark Eudora, 190 U. S. 169 ; Strathearn S.S. Co. v. Dillon, 252 U.
S. 348 ; of wages of railroad employes, St. Louis, I.
M. & St.P. Ry. Co. v. Paul, 173 U.
S. 404 ; Erie R. Co. v. Williams, 233 U.
S. 685 ; regulating the redemption of store orders issued
for wages, Knoxville Iron Co. v. Harbison, 183 US. 13; Keokee Consolidated Coke Co. v. Taylor, 234 U.
S. 224 ; regulating the assignment of wages, Mutual
Loan Co. v. Martell, 222 US. 225; requiring payment for coal
mined on a fixed basis other than that usually practiced, McLean v. Arkansas, 211 U. S. 539 ; Rail & River Coal Co. v. Yaple, 236 U.
S. 38 ; establishing a system of compulsory workmen's
compensation, New York Central R. Co. v. White, 243 U. S. 188 ; Mountain Timber Co. v. Washington, 243 U.
S. 219 .

															[ Footnote 26 ]

															Sales of stock or grain on margin, Booth v. Illinois, 184 U. S. 425 ; Brodnax v. Missouri, 219 U. S. 285 ; Otis v. Parker, 187 U. S. 606 ; the
conduct of pool and billiard rooms by aliens, Clarke v.
Deckebach, 274 U. S. 392 ; the
conduct of billiard and pool rooms by anyone, Murphy v.
California, 225 U. S. 623 ; the
sale of liquor, Mugler v. Kansas, 123 U.
S. 623 ; the business of soliciting claims by one not an
attorney, McCloskey v. Tobin, 252 U.
S. 107 ; manufacture or sale of oleomargarine, Powell
v. Pennsylvania, 127 U. S. 678 ;
hawking and peddling of drugs or medicines, Baccus v.
Louisiana, 232 U. S. 334 ;
forbidding any other than a corporation to engage in the business
of receiving deposits, Dillingham v. McLaughlin, 264 U. S. 370 , or
any other than corporations to do a banking business, Shallenberger v. First State Bank, 219 U.
S. 114 .

															[ Footnote 27 ]

															Physicians, Dent v. West Virginia, 129 U.
S. 114 ; Watson v. Maryland, 218 U.
S. 173 ; Crane v. Johnson, 242 U.
S. 339 ; Hayman v. Galveston, 273 U.
S. 414 ; dentists, Douglas v. Noble, 261 U. S. 165 ; Graves v. Minnesota, 272 U. S. 425 ;
employment agencies, Brazee v. Michigan, 241 U.
S. 340 ; public weighers of grain, Merchants Exchange
v. Missouri, 248 U. S. 365 ;
real estate brokers, Bratton v. Chandler, 260 U.
S. 110 ; insurance agents, La Tourette v.
McMaster, 248 U. S. 465 ;
insurance companies, German Alliance Ins. Co. v. Lewis, 233 U. S. 389 ; the
sale of cigarettes, Gundling v. Chicago, 177 U.
S. 183 ; the sale of spectacles, Roschen v.
Ward, 279 U. S. 337 ;
private detectives, Lehon v. Atlanta, 242 U. S.
53 ; grain brokers, Chicago Board of Trade v.
Olsen , 262 U.S. l; business of renting automobiles
to be used by the renter upon the public streets, Hodge Co. v.
Cincinnati, 284 U. S. 335 .

															[ Footnote 28 ] Champlin Refining Co. v. Corporation Comm'n, 286 U. S. 210 . Compare Bandini Petroleum Co. v. Superior Court, 284 U. S. 8 , 284 U. S.
21 -22.

															[ Footnote 29 ]

															Contracts of carriage, Atlantic Coast Line v. Riverside
Mills, 219 U. S. 186 ;
agreements substituting relief or insurance payments for actions
for negligence, Chicago, B. & Q. R. Co. v. McGuire, 219 U. S. 549 ;
affecting contracts of insurance, Orient Ins. Co. v.
Daggs, 172 US. 557; Whitfield v. Aetna Life Ins. Co., 205 U. S. 489 ; National Union Fire Ins. Co. v. Wanberg, 260 U. S.
71 ; Hardware Dealers Mut. F. I. Co. v. Glidden
Co., 284 U. S. 151 ;
contracts for sale of real estate, Selover, Bates & Co. v.
Walsh, 226 U. S. 112 ;
contracts for sale of farm machinery, Advance-Rumely Co. v.
Jackson, 287 U. S. 283 ;
bonds for performance of building contracts, Hartford Accident
& Indemnity Co. v. Nelson Mfg. Co., 291 U.
S. 352 .

															[ Footnote 30 ] Central Lumber Co. v. South Dakota, 226 U.
S. 157 .

															[ Footnote 31 ] Rast v. Van Deman & Lewis Co., 240 U.
S. 342 .

															[ Footnote 32 ] Van Camp & Sons Co. v. American Can Co., 278 U. S. 245 .

															[ Footnote 33 ]

															State statutes: Smiley v. Kansas, 196 U.
S. 447 ; National Cotton Oil Co. v. Texas, 197 U. S. 115 ; Waters-Pierce Oil Co. v. Texas (No. 1), 212 U. S.
86 ; Hammond Packing Co. v. Arkansas, 212 U. S. 322 ; Grenada Lumber Co. v. Mississippi, 217 U.
S. 433 ; International Harvester Co. v.
Missouri, 234 U. S. 199 .

															Federal statutes: United States v. Joint Traffic Assn., 171 U. S. 505 , 171 U. S. 559 , 171 U. S.
571 -573; Addyston Pipe & Steel Co. v. United
States, 175 U. S. 211 , 175 U. S.
228 -229; Northern Securities Co. v. United
States, 193 U. S. 197 , 193 U. S. 332 ; United Shoe Mach. Corp. v. United States, 258 U.
S. 451 , 258 U. S.
462 -464.

															[ Footnote 34 ] Slaughter-House
Cases , 16 Wall. 36; Conway v.
Taylor's Executor , 1 Black 603; Crowley v.
Christensen, 137 U. S. 86 .

															[ Footnote 35 ] Madera Water Works v. Madera, 228 U.
S. 454 ; Jones v. Portland, 245 U.
S. 217 ; Green v. Frazier, 253 U.
S. 233 ; Standard Oil Co. v. Lincoln, 275 U.S.
504.

															[ Footnote 36 ]

															As instances of Acts of Congress regulating private businesses
consistently with the due process guarantee of the Fifth Amendment,
the court cites those fixing rates to be charged at private
wharves, by chimney-sweeps and hackneys, cartmen, wagoners and
draymen in the District of Columbia (p. 125).

															[ Footnote 37 ] Chicago, B. & Q. R. Co. v. Iowa, 94 U. S.
155 . It will be noted that the emphasis is here
reversed, and the carrier is said to be in a business affecting the
public, not that the business is somehow affected by an interest of
the public

															[ Footnote 38 ] Peik v. C. & N.W. Ry. Co., 94 U. S.
164 .

															[ Footnote 39 ] See Wolff Packing Co. v. Industrial Court, supra; Tyson
& Bro. v. Banton, 273 U. S. 418 ; Ribnik v. McBride, 277 U. S. 350 ; Williams v. Standard Oil Co., 278 U.
S. 235 .

															[ Footnote 40 ] See McLean v. Arkansas, 211 U.
S. 539 , 211 U. S. 547 ; Tanner v. Little, 240 U. S. 369 , 240 U. S. 385 ; Green v. Frazier, 253 U. S. 233 , 253 U. S. 240 ; O'Gorman & Young v. Hartford Fire Ins. Co., 282 U. S. 251 , 282 U. S.
257 -258; Gant v. Oklahoma City, 289 U. S.
98 , 289 U. S.
102 .

															[ Footnote 41 ] See note 32 supra. [ Footnote 42 ] Public Service Comm'n v. Great Northern Utilities Co., 289 U. S. 130 ; Stephenson v. Binford, supra. See the
Transportation Act, 1920, 41 Stat. 456, §§ 418, 422, amending § 15
of the Interstate Commerce Act, and compare Anchor Coal Co. v.
United States, 25 F.2d
462 ; New England Divisions Case, 261 U.
S. 184 , 261 U. S. 190 , 261 U. S.
196 .

															[ Footnote 43 ] See Public Service Comm'n v. Great Northern Utilities Co.,
supra. Separate opinion of MR. JUSTICE McREYNOLDS.

															By an act effective April 10, 1933 (Laws, 1933, Ch. 158), when
production of milk greatly exceeded the demand, the Legislature
created a Control Board with power to

															"regulate the entire milk industry of New York state, including
the production, transportation, manufacture, storage, distribution,
delivery and sale. . . ."

															The

															"board may adopt and enforce all rules and all orders necessary
to carry out the provisions of this article. . . . A rule of the
board, when duly posted and filed as provided in this section,
shall have the force and effect of law. . . ; a violation of any
provision of this article or of any rule or order of the board
lawfully made, except as otherwise expressly provided by this
article, shall be a misdemeanor. . . ."

															After considering

															"all conditions affecting the milk industry including the amount
necessary to yield a reasonable return to the producer and to the
milk dealer . . ."

															the board

															"shall fix by official order the minimum wholesale and retail
prices, and may fix by official order the maximum wholesale and
retail prices to be charged for milk handled within the state.
" Page 291 U. S. 540 April 17, this Board prescribed nine cents per quart as the
minimum at which "a store" might sell. * April 19,
appellant Nebbia, a small storekeeper in Rochester, sold two
bottles at a less price. An information charged that, by so doing,
he committed a misdemeanor. A motion to dismiss, which challenged
the validity of both statute and order, being overruled, the trial
proceeded under a plea of not guilty. The Board's order and
statements by two witnesses tending to show the alleged sale
constituted the entire evidence. Notwithstanding the claim, that,
under the XIV Amendment, the State lacked power to Page 291 U. S. 541 prescribe prices at which he might sell pure milk, lawfully
held, he was adjudged guilty and ordered to pay a fine.

															The Court of Appeals affirmed the conviction. Among other
things, it said, pp. 264 et seq.: --

															The sale by Nebbia was a violation of the statute "inasmuch as
the Milk Control Board had fixed a minimum price for milk at nine
cents per quart."

															"The appellant not unfairly summarizes this law by saying that
it first declares that milk has been selling too cheaply in the
State of New York, and has thus created a temporary emergency; this
emergency is remedied by making the sale of milk at a low price a
crime; the question of what is a low price is determined by the
majority vote of three officials. As an aid in enforcing the rate
regulation, the milk industry in the State of New York is made a
business affecting the public health and interest until March 31,
1934, and the Board can exclude from the milk business any violator
of the statute or the Board's orders."

															In fixing sale prices. the Board

															"must take into consideration the amount necessary to yield a
'reasonable return' to the producer and the milk dealer. . . . The
fixing of minimum prices is one of the main features of the act.
The question is whether the act, so far as it provides for fixing
minimum prices for milk, is unconstitutional . . . in that it
interferes with the right of the milk dealer to carry on his
business in such manner as suits his convenience without state
interference as to the price at which he shall sell his milk. The
power thus to regulate private business can be invoked only under
special circumstances. It may be so invoked when the Legislature is
dealing with a paramount industry upon which the prosperity of the
entire State in large measure depends. It may not be invoked when
we are dealing with an ordinary business, essentially private in
its nature. Page 291 U. S. 542 This is the vital distinction pointed out in New State Ice Co. v.
Liebmann ( 285 U.S.
262 , 285 U. S. 277 ). . . ."

															"The question is as to whether the business justifies the
particular restriction, or whether the nature of the business is
such that any competent person may, conformably to reasonable
regulation, engage therein. The production of milk is, on account
of its great importance as human food, a chief industry of the
State of New York. . . . It is of such paramount importance as to
justify the assertion that the general welfare and prosperity of
the State, in a very large and real sense, depend upon it. . . .
The State seeks to protect the producer by fixing a minimum price
for his milk to keep open the stream of milk flowing from the farm
to the city and to guard the farmer from substantial loss. . . .
Price is regulated to protect the farmer from the exactions of
purchasers against which he cannot protect himself. . . ."

															"Concededly, the Legislature cannot decide the question of
emergency and regulation free from judicial review, but this court
should consider only the legitimacy of the conclusions drawn from
the facts found."

															"We are accustomed to rate regulation in cases of public
utilities and other analogous cases, and to the extension of such
regulative power into similar fields. . . . This case, for example,
may be distinguished from the Oklahoma ice case ( New State Ice
Co. v. Liebmann, 285 U. S. 262 , 285 U. S.
277 ), holding that the business of manufacturing and
selling ice cannot be made a public business, to which it bears a
general resemblance. The New York law creates no monopoly; does not
restrict production; was adopted to meet an emergency; milk is a
greater family necessity than ice. . . . Mechanical concepts of
jurisprudence make easy a decision on the strength of seeming
authority. . . ."

															"Doubtless the statute before us would be condemned by an
earlier generation as a temerarious interference Page 291 U. S. 543 with the rights of property and contract . . . , with the
natural law of supply and demand. But we must not fail to consider
that the police power is the least limitable of the powers of
government, and that it extends to all the great public needs; . .
. that statutes . . . aiming to stimulate the production of a vital
food product by fixing living standards of prices for the producer,
are to be interpreted with that degree of liberality which is
essential to the attainment of the end in view; . . ."

															"With full respect for the Constitution as an efficient frame of
government in peace and war, under normal conditions or in
emergencies; with cheerful submission to the rule of the Supreme
Court that legislative authority to bridge property rights and
freedom of contract can be justified only by exceptional
circumstances and, even then, by reasonable regulation only, and
that legislative conclusions based on findings of fact are subject
to judicial review, we do not feel compelled to hold that the 'due
process' clause of the Constitution has left milk producers
unprotected from oppression, and to place the stamp of invalidity
on the measure before us."

															"With the wisdom of the legislation, we have naught to do. It
may be vain to hope, by laws, to oppose the general course of
trade. . . ."

															"We are unable to say that the Legislature is lacking in power
not only to regulate and encourage the production of milk, but
also, when conditions require, to regulate the prices to be paid
for it, so that a fair return may be obtained by the producer and a
vital industry preserved from destruction. . . . The policy of
noninterference with individual freedom must at times give way to
the policy of compulsion for the general welfare."

															Our question is whether the Control Act, as applied to appellant
through the order of the Board, number five, deprives him of rights
guaranteed by the XIV Amendment. He was convicted of a crime for
selling his own Page 291 U. S. 544 property -- wholesome milk -- in the ordinary course of business
at a price satisfactory to himself and the customer. We are not
immediately concerned with any other provision of the act, or later
orders. Prices at which the producer may sell were not prescribed
-- he may accept any price -- nor was production in any way
limited. "To stimulate the production of a vital food product" was
not the purpose of the statute. There was an oversupply of an
excellent article. The affirmation is

															"that milk has been selling too cheaply . . . , and has thus
created a temporary emergency; this emergency is remedied by making
the sale of milk at a low price a crime."

															The opinion below points out that the statute expires March 31,
1934, "and is avowedly a mere temporary measure to meet an existing
emergency," but the basis of the decision is not explicit. There
was no definite finding of an emergency by the court upon
consideration of established facts, and no pronouncement that
conditions were accurately reported by a legislative committee. Was
the legislation upheld because only temporary, and for an
emergency, or was it sustained upon the view that the milk business
bears a peculiar relation to the public, is affected with a public
interest, and, therefore, sales prices may be prescribed
irrespective of exceptional circumstances? We are left in
uncertainty. The two notions are distinct, if not conflicting.
Widely different results may follow adherence to one or the
other. ----- The theory that legislative action which ordinarily would be
ineffective because of conflict with the Constitution may become
potent if intended to meet peculiar conditions and properly limited
was lucidly discussed, and its weakness disclosed, by the
dissenting opinion in Home Page 291 U. S. 545 Building & Loan Assn. v. Blaisdell, 290 U.
S. 398 . Sixty years ago, in Milligan's case,
this Court declared it inimical to Constitutional government, and
did "write the vision and make it plain upon tables that he may run
that readeth it."

															Milligan, charged with offenses against the United States
committed during 1863 and 1864, was tried, convicted and sentenced
to be hanged by a military commission proceeding under an Act of
Congress passed in 1862. The crisis then existing was urged in
justification of its action. But this Court held the right of trial
by jury did not yield to emergency, and directed his release.

															"Those great and good men [who drafted the Constitution] foresaw
that troublous times would arise when rulers and people would
become restive under restraint, and seek by sharp and decisive
measures to accomplish ends deemed just and proper, and that the
principles of constitutional liberty would be in peril unless
established by irrepealable law. . . . The Constitution of the
United States is a law for rulers and people, equally in war and in
peace, and covers with the shield of its protection all classes of
men, at all times and under all circumstances. No doctrine
involving more pernicious consequences was ever invented by the wit
of man than that any of its provisions can be suspended during any
of the great exigencies of government. Such a doctrine leads
directly to anarchy or despotism." Ex parte
Milligan (1866), 4 Wall. 2, 71 U. S. 120 .

															The XIV Amendment wholly disempowered the several States to
"deprive any person of life, liberty, or property, without due
process of law." The assurance of each of these things is the same.
If now liberty or property may be struck down because of difficult
circumstances, we must expect that, hereafter, every right must
yield to the voice of an impatient majority when stirred by
distressful Page 291 U. S. 546 exigency. Amid the turmoil of civil war, Milligan was sentenced;
happily, this Court intervened. Constitutional guaranties are not
to be "thrust to and fro and carried about with every wind of
doctrine." They were intended to be immutable so long as within our
charter. Rights shielded yesterday should remain indefeasible today
and tomorrow. Certain fundamentals have been set beyond
experimentation; the Constitution has released them from control by
the State. Again and again, this Court has so declared. Adams v. Tanner, 244 U. S. 590 ,
condemned a Washington initiative measure which undertook to
destroy the business of private employment agencies because it
unduly restricted individual liberty. We there said --

															"The fundamental guaranties of the Constitution cannot be freely
submerged if and whenever some ostensible justification is advanced
and the police power invoked." Buchanan v. Warley, 245 U. S. 60 , held
ineffective an ordinance which forbade negroes to reside in a city
block where most of the houses were occupied by whites.

															"It is equally well established that the police power, broad as
it is, cannot justify the passage of a law or ordinance which runs
counter to the limitations of the Federal Constitution; that
principle has been so frequently affirmed in this court that we
need not stop to cite the cases." Southern Ry. Co. v. Virginia, 290 U.
S. 190 , 290 U. S. 196 --

															"The claim that the questioned statute was enacted under the
police power of the State, and, therefore, is not subject to the
standards applicable to legislation under other powers, conflicts
with the firmly established rule that every State power is limited
by the inhibitions of the XIV Amendment." Akins v. Children's Hospital, 261 U.
S. 525 , 261 U. S.
545 .

															"That the right to contract about one's affairs is a part of the
liberty of the individual protected by this clause Page 291 U. S. 547 [Fifth Amendment] is settled by the decisions of this Court, and
is no longer open to question." Meyer v. Nebraska, 262 U. S. 390 , 262 U. S. 399 ,
held invalid a State enactment (1919) which forbade the teaching in
schools of any language other than English.

															"While this Court has not attempted to define with exactness the
liberty thus guaranteed, the term has received much consideration,
and some of the included things have been definitely stated.
Without doubt, it denotes not merely freedom from bodily restraint,
but also the right of the individual to contract, to engage in any
of the common occupations of life, to acquire useful knowledge, to
marry, establish a home and bring up children, to worship God
according to the dictates of his own conscience, and generally to
enjoy those privileges long recognized at common law as essential
to the orderly pursuit of happiness by free men." Schlesinger v. Wisconsin, 270 U.
S. 230 , 270 U. S. 240 .
"The State is forbidden to deny due process of law or the equal
protection of the laws for any purpose whatsoever." Near v. Minnesota, 283 U. S. 697 ,
overthrew a Minnesota statute designed to protect the public
against obvious evils incident to the business of regularly
publishing malicious, scandalous and defamatory matters, because of
conflict with the XIV Amendment.

															In the following, among many other cases, much consideration has
been given to this subject. United States v. Cohen Grocery
Co., 255 U. S. 81 , 255 U. S. 88 ; Wolff Co. v. Industrial Court, 262 U.
S. 522 , and 267 U. S. 267 U.S.
552; Pierce v. Society of Sisters, 268 U.
S. 510 ; Tyson & Bro. v. Banton, 273 U. S. 418 ; Fairmont Creamery Co. v. Minnesota, 274 U. S.
1 ; Ribnik v. McBride, 277 U.
S. 350 ; Williams v. Standard Oil Co., 278 U. S. 235 ; Sterling v. Constantin, 287 U. S. 378 . All
stand in opposition to the views apparently approved below. Page 291 U. S. 548 If validity of the enactment depends upon emergency, then, to
sustain this conviction, we must be able to affirm that an adequate
one has been shown by competent evidence of essential facts. The
asserted right is federal. Such rights may demand, and often have
received, affirmation and protection here. They do not vanish
simply because the power of the State is arrayed against them. Nor
are they enjoyed in subjection to mere legislative findings.

															If she relied upon the existence of emergency, the burden was
upon the State to establish it by competent evidence. None was
presented at the trial. If necessary for appellant to show absence
of the asserted conditions, the little grocer was helpless from the
beginning -- the practical difficulties were too great for the
average man.

															What circumstances give force to an "emergency" statute? In how
much of the State must they obtain? Everywhere, or will a single
county suffice? How many farmers must have been impoverished or
threatened violence to create a crisis of sufficient gravity? If,
three days after this act became effective, another "very grievous
murrain" had descended, and half of the cattle had died, would the
emergency then have ended, also, the prescribed rates? If prices
for agricultural products become high, can consumers claim a crisis
exists, and demand that the Legislature fix less ones? Or are
producers alone to be considered, consumers neglected? To these
questions, we have no answers. When emergency gives potency, its
subsidence must disempower; but no test for its presence or absence
has been offered. How is an accused to know when some new rule of
conduct arrived, when it will disappear?

															It is argued that the report of the Legislative Committee, dated
April 10th, 1933, disclosed the essential facts. May one be
convicted of crime upon such findings? Are Page 291 U. S. 549 federal rights subject to extinction by reports of committees?
Heretofore, they have not been.

															Apparently the Legislature acted upon this report. Some excerpts
from it follow. We have no basis for determining whether the
findings of the committee or legislature are correct, or otherwise.
The court below refrained from expressing any opinion in that
regard, notwithstanding its declaration

															"that legislative authority to abridge property rights and
freedom of contract can be justified only by exceptional
circumstances and, even then, by reasonable regulation only, and
that legislative conclusions based on findings of fact are subject
to judicial review."

															On the other hand it asserted -- "This court should consider
only the legitimacy of the conclusions drawn from the facts
found."

															In New York, there are twelve million possible consumers of
milk; 130,000 farms produce it. The average daily output
approximates 9,500,000 quarts. For ten or fifteen years prior to
1929 or 1930, the per capita consumption steadily increased; so did
the supply. "Realizing the marked improvement in milk quality, the
public has tended to increase its consumption of this commodity."
"In the past two years, the per capita consumption has fallen off,
[possibly] 10 percent."

															"These marked changes in the trend of consumption of fluid milk
and cream have occurred in spite of drastic reductions in retail
prices. The obvious cause is the reduced buying power of
consumers."

															"These cycles of overproduction and underproduction, which
average about 15 years in length, are explained by the human
tendency to raise too many heifers when prices of cows are high,
and too few when prices of cows are low. A period of favorable
prices for milk leads to the raising of more than the usual number
of heifers, but it is not until seven or eight years later that the
trend is reversed as a result of the falling prices Page 291 U. S. 550 of milk and cows."

															"Farmers all over the world raise too many heifers whenever cows
pay, and raise too few heifers when cows do not pay."

															"During the years 1925 to 1930, inclusive, the prices which the
farmers of the state received for milk were favorable as compared
with the wholesale prices of all commodities. They were even more
favorable as compared with the prices received for other farm
products, for, not only in New York, but throughout the United
States, the general level of prices of farm products has been below
that of other prices since the World War."

															"The comparatively favorable situation enjoyed by the milk
producers had an abrupt ending in 1932. Even before that, in 1930
and 1931, milk prices dropped very rapidly."

															"The prices which farmers received for milk during 1932 were
much below the costs of production. After other costs were paid,
the producers had practically nothing left for their labor. The
price received for milk in January, 1933, was little more than half
the cost of production."

															"Since 1927, the number of dairy cows in the state has increased
about 10 percent. The effect of this has been to increase the
surplus of milk."

															"Similar increases in the number of cows have occurred generally
in the United States, and are due to the periodic changes in number
of heifer calves raised on the farms. Previous experience indicates
that, unless some form of arbitrary regulation is applied, the
production of milk will not be satisfactorily adjusted to the
demand for a period of several years."

															"Close adjustment of the supply of fluid milk to the demand is
further hindered by the periodic changes in the number of heifers
raised for dairy cows."

															"The purpose of this emergency measure is to bring partial
relief to dairymen from the disastrously low prices for milk which
have prevailed in recent months. It is recognized that the dairy
industry of the state cannot be Page 291 U. S. 551 placed upon a profitable basis without a decided rise in the
general level of commodity prices."

															Thus, we are told, the number of dairy cows had been increasing,
and that favorable prices for milk bring more cows. For two years,
notwithstanding low prices, the per capita consumption had been
falling. "The obvious cause is the reduced buying power of
consumers." Notwithstanding the low prices, farmers continued to
produce a large surplus of wholesome milk for which there was no
market. They had yielded to "the human tendency to raise too many
heifers" when prices were high, and "not until seven or eight
years" after 1930 could one reasonably expect a reverse trend. This
failure of demand had nothing to do with the quality of the milk --
that was excellent. Consumers lacked funds with which to buy. In
consequence, the farmers became impoverished, and their lands
depreciated in value. Naturally, they became discontented.

															The exigency is of the kind which inevitably arises when one set
of men continue to produce more than all others can buy. The
distressing result to the producer followed his ill-advised, but
voluntary, efforts. Similar situations occur in almost every
business. If here we have an emergency sufficient to empower the
Legislature to fix sales prices, then, whenever there is too much
or too little of an essential thing -- whether of milk or grain or
pork or coal or shoes or clothes -- constitutional provisions may
be declared inoperative, and the "anarchy and despotism" prefigured
in Milligan's case are at the door. The futility of such
legislation in the circumstances is pointed out below. ----- Block v. Hirsh, 256 U. S. 135 and Marcus Brown Holding Co. v. Feldman, 256 U.
S. 170 , are much relied on to support emergency
legislation. They were civil proceedings; the first to recover a
leased building in the District of Page 291 U. S. 552 Columbia; the second to gain possession of an apartment house in
New York. The unusual conditions grew out of the World War. The
questioned statutes made careful provision for protection of
owners. These cases were analyzed, and their inapplicability to
circumstances like the ones before us was pointed out, in Tyson
& Bro. v. Banton, 273 U. S. 418 .
They involved peculiar facts, and must be strictly limited. Pennsylvania Coal Co. v. Mahon, 260 U.
S. 393 , 260 U. S. 416 ,
said of them --

															"The late decisions upon laws dealing with the congestion of
Washington and New York, caused by the war, dealt with laws
intended to meet a temporary emergency and providing for
compensation determined to be reasonable by an impartial board.
They went to the verge of the law, but fell far short of the
present act." ----- Is the milk business so affected with public interest that the
Legislature may prescribe prices for sales by stores? This Court
has approved the contrary view; has emphatically declared that a
State lacks power to fix prices in similar private businesses. United States v. Cohen Grocery Co., 255 U. S.
81 ; Adkins v. Children's Hospital, 261 U.
S. 525 ; Wolff Packing Co. v. Industrial Court, 262 U. S. 522 ; Tyson & Bro. v. Banton, 273 U.
S. 418 ; Fairmont Creamery Co. v.
Minnesota , 274 U.S. l; Ribnik v. McBride, 277 U. S. 350 ; Williams v. Standard Oil Co., 278 U.
S. 235 ; New State Ice Co. v. Liebmann, 285 U. S. 262 ; Sterling v. Constantin, 287 U. S. 378 , 287 U. S.
396 . Wolff Packing Co. v. Industrial Court, 262 U.
S. 522 , 262 U. S. 537 .
-- Here, the State's statute undertook to destroy the freedom to
contract by parties engaged in so-called "essential" industries.
This Court held that she had no such power.

															"It has never been supposed, since the adoption of the
Constitution, that the business of the butcher, or the baker, the
tailor, the woodchopper, the Page 291 U. S. 553 mining operator or the miner was clothed with such a public
interest that the price of his product or his wages could be fixed
by State regulation. . . . An ordinary producer, manufacturer or
shopkeeper may sell or not sell as he likes."

															On a second appeal, 267 U. S. 267 U.S.
552, 267 U. S. 569 ,
the same doctrine was restated:

															"The system of compulsory arbitration which the Act establishes
is intended to compel, and, if sustained, will compel, the owner
and employees to continue the business on terms which are not of
their making. It will constrain them not merely to respect the
terms if they continue the business, but will constrain them to
continue the business on those terms. True, the terms have some
qualifications, but, as shown in the prior decision, the
qualifications are rather illusory, and do not subtract much from
the duty imposed. Such a system infringes the liberty of contract
and rights of property guaranteed by the due process of law clause
of the Fourteenth Amendment."

															"The established doctrine is that this liberty may not be
interfered with, under the guise of protecting the public interest,
by legislative action which is arbitrary or without reasonable
relation to some purpose within the competency of the State to
effect." Fairmont Creamery Co. v. Minnesota, 274 U. S.
1 , 274 U. S. 9 . -- A
statute commanded buyers of cream to adhere to uniform prices fixed
by a single transaction. --

															"May the State, in order to prevent some strong buyers of cream
from doing things which may tend to monopoly, inhibit plaintiff in
error from carrying on its business in the usual way, heretofore
regarded as both moral and beneficial to the public and not shown
now to be accompanied by evil results as ordinary incidents? Former
decisions here require a negative answer. We think the inhibition
of the statute has no reasonable relation to the anticipated evil
-- high bidding by some with purpose to monopolize or destroy
competition. Looking through form to substance, it clearly and
unmistakably infringes private rights whose exercise Page 291 U. S. 554 does not ordinarily produce evil consequences, but the
reverse." Williams v. Standard Oil Co., 278 U.
S. 235 , 278 U. S. 239 .
-- The State of Tennessee was declared without power to prescribe
prices at which gasoline might be sold.

															"It is settled by recent decisions of this Court that a state
legislature is without constitutional power to fix prices at which
commodities may be sold, services rendered, or property used unless
the business or property involved is 'affected with a public
interest.'"

															Considered affirmatively,

															"it means that a business or property, in order to be affected
with a public interest, must be such or be so employed as to
justify the conclusion that it has been devoted to a public use,
and its use thereby, in effect, granted to the public. . . .
Negatively, it does not mean that a business is affected with a
public interest merely because it is large, or because the public
are warranted in having a feeling of concern in respect of its
maintenance." New State Ice Co. v. Liebmann, 285 U.
S. 262 , 285 U. S. 277 .
-- Here, Oklahoma undertook the control of the business of
manufacturing and selling ice. We denied the power so to do.

															"It is a business as essentially private in its nature as the
business of the grocer, the dairyman, the butcher, the baker, the
shoemaker, or the tailor, . . . And this court has definitely said
that the production or sale of food or clothing cannot be subjected
to legislative regulation on the basis of a public use." ----- Regulation to prevent recognized evils in business has long been
upheld as permissible legislative action. But fixation of the price
at which "A" engaged in an ordinary business, may sell in order to
enable "B," a producer, to improve his condition has not been
regarded as within legislative power. This is not regulation, but
management, control, dictation -- it amounts to the deprivation Page 291 U. S. 555 of the fundamental right which one has to conduct his own
affairs honestly, and along customary lines. The argument advanced
here would support general prescription of prices for farm
products, groceries, shoes, clothing, all the necessities of modern
civilization, as well as labor, when some legislature finds and
declares such action advisable, and for the public good. This Court
has declared that a State may not, by legislative fiat, convert a
private business into a public utility. Michigan Comm'n v.
Duke, 266 U. S. 570 , 266 U. S. 577 . Frost Trucking Co. v. Railroad Comm'n, 271 U.
S. 583 , 271 U. S. 592 . Smith v. Cahoon, 283 U. S. 553 , 283 U. S. 563 .
And if it be now ruled that one dedicates his property to public
use whenever he embarks on an enterprise which the Legislature may
think it desirable to bring under control, this is but to declare
that rights guaranteed by the Constitution exist only so long as
supposed public interest does not require their extinction. To
adopt such a view, of course, would put an end to liberty under the
Constitution. Munn v. Illinois (1877), 94 U. S.
113 , has been much discussed in the opinions referred to
above. And always the conclusion was that nothing there sustains
the notion that the ordinary business of dealing in commodities is
charged with a public interest and subject to legislative control.
The contrary has been distinctly announced. To undertake now to
attribute a repudiated implication to that opinion is to affirm
that it means what this Court has declared again and again was not
intended. The painstaking effort there to point out that certain
businesses like ferries, mills, &c. were subject to legislative
control at common law, and then to show that warehousing at Chicago
occupied like relation to the public, would have been pointless if
"affected with a public interest" only means that the public has
serious concern about the perpetuity and success of the
undertaking. That is true of almost all ordinary business affairs.
Nothing in the Page 291 U. S. 556 opinion lends support, directly or otherwise, to the notion
that, in times of peace, a legislature may fix the price of
ordinary commodities -- grain, meat, milk, cotton, &c. ----- Of the assailed statute, the Court of Appeals says --

															"It first declares that milk has been selling too cheaply in the
State of New York, and has thus created a temporary emergency; this
emergency is remedied by making the sale of milk at a low price a
crime; the question of what is a low price is determined by the
majority vote of three officials."

															Also -- "With the wisdom of the legislation we have naught to
do. It may be vain to hope by laws to oppose the general course of
trade." Maybe, because of this conclusion, it said nothing
concerning the possibility of obtaining increase of prices to
producers -- the thing definitely aimed at -- through the means
adopted.

															But, plainly, I think, this Court must have regard to the wisdom
of the enactment. At least we must inquire concerning its purpose,
and decide whether the means proposed have reasonable relation to
something within legislative power -- whether the end is
legitimate, and the means appropriate. If a statute to prevent
conflagrations should require householders to pour oil on their
roofs as a means of curbing the spread of fire when discovered in
the neighborhood, we could hardly uphold it. Here, we find direct
interference with guaranteed rights defended upon the ground that
the purpose was to promote the public welfare by increasing milk
prices at the farm. Unless we can affirm that the end proposed is
proper, and the means adopted have reasonable relation to it, this
action is unjustifiable.

															The court below has not definitely affirmed this necessary
relation; it has not attempted to indicate how higher charges at
stores to impoverished customers when the output Page 291 U. S. 557 is excessive and sale prices by producers are unrestrained, can
possibly increase receipts at the farm. The Legislative Committee
pointed out as the obvious cause of decreased consumption,
notwithstanding low prices, the consumers' reduced buying power.
Higher store prices will not enlarge this power, nor will they
decrease production. Low prices will bring less cows only after
several years. The prime causes of the difficulties will remain.
Nothing indicates early decreased output. Demand at low prices
being wholly insufficient, the proposed plan is to raise and fix
higher minimum prices at stores, and thereby aid the producer whose
output and prices remain unrestrained! It is not true, as stated,
that "the State seeks to protect the producer by fixing a minimum
price for his milk." She carefully refrained from doing this, but
did undertake to fix the price after the milk had passed to other
owners. Assuming that the views and facts reported by the
Legislative Committee are correct, it appears to me wholly
unreasonable to expect this legislation to accomplish the proposed
end -- increase of prices at the farm. We deal only with Order No.
5, as did the court below. It is not merely unwise; it is arbitrary
and unduly oppressive. Better prices may follow, but it is beyond
reason to expect them as the consequent of that order. The
Legislative Committee reported --

															"It is recognized that the dairy industry of the State cannot be
placed upon a profitable basis without a decided rise in the
general level of commodity prices."

															Not only does the statute interfere arbitrarily with the rights
of the little grocer to conduct his business according to standards
long accepted -- complete destruction may follow; but it takes away
the liberty of twelve million consumers to buy a necessity of life
in an open market. It imposes direct and arbitrary burdens upon
those already seriously impoverished with the alleged immediate
design of affording special benefits to others. To him Page 291 U. S. 558 with less than nine cents it says -- You cannot procure a quart
of milk from the grocer although he is anxious to accept what you
can pay and the demands of your household are urgent! A
superabundance, but no child can purchase from a willing
storekeeper below the figure appointed by three men at
headquarters! And this is true although the storekeeper himself may
have bought from a willing producer at half that rate, and must
sell quickly or lose his stock through deterioration. The fanciful
scheme is to protect the farmer against undue exactions by
prescribing the price at which milk disposed of by him at will may
be resold!

															The statement by the court below that --

															"Doubtless the statute before us would be condemned by an
earlier generation as a temerarious interference with the rights of
property and contract . . . ; with the natural law of supply and
demand,"

															is obviously correct. But another, that

															"statutes aiming to stimulate the production of a vital food
product by fixing living standards of prices for the producer are
to be interpreted with that degree of liberality which is essential
to the attainment of the end in view"

															"conflicts with views of Constitutional rights accepted since
the beginning. An end, although apparently desirable, cannot
justify inhibited means. Moreover the challenged act was not
designed to stimulate production -- there was too much milk for the
demand, and no prospect of less for several years; also, 'standards
of prices' at which the producer might sell were not prescribed.
The Legislature cannot lawfully destroy guaranteed rights of one
man with the prime purpose of enriching another, even if, for the
moment, this may seem advantageous to the public. And the adoption
of any 'concept of jurisprudence' which permits facile disregard of
the Constitution, as long interpreted and respected, will
inevitably lead to its destruction. Then, all rights will be
subject Page 291 U. S. 559 to the caprice of the hour; government by stable laws will
pass."

															The somewhat misty suggestion below, that condemnation of the
challenged legislation would amount to holding "that the due
process clause has left milk producers unprotected from
oppression," I assume, was not intended as a material contribution
to the discussion upon the merits of the cause. Grave concern for
embarrassed farmers is everywhere, but this should neither obscure
the rights of others nor obstruct judicial appraisement of measures
proposed for relief. The ultimate welfare of the producer, like
that of every other class, requires dominance of the Constitution.
And zealously to uphold this in all its parts is the highest duty
intrusted to the courts.

															The judgment of the court below should be reversed.

															MR. JUSTICE VAN DEVANTER, MR. JUSTICE SUTHERLAND, and MR.
JUSTICE BUTLER authorize me to say that they concur in this
opinion.

															* Official Order No. 5, effective April 17, 1933.

															"Ordered that, until further notice and subject to the
exceptions hereinafter made, the following shall be the minimum
prices to be charged for all milk and cream in any and all cities
and villages of the State of New York of more than One Thousand
(1,000) population, exclusive of New York City and the Counties of
Westchester, Nassau and Suffolk:"

															"Milk -- Quarts in bottles: By milk dealers to consumers 10
cents; by milk dealers to stores 8 cents; by stores to consumers 9
cents."

															"Pints in bottles: By milk dealers to consumers 6 cents; by milk
dealers to stores 5 cents; by stores to consumers 6 cents. . .
."

															The Control Act declares:

															"'Milk dealer' means any person who purchases or handles milk
within the state, for sale in this state, or sells milk within the
state except when consumed on the premises where sold. Each
corporation which if a natural person would be a milk dealer within
the meaning of this article, and any subsidiary of such
corporation, shall be deemed a milk dealer within the meaning of
this definition. A producer who delivers milk only to a milk dealer
shall not be deemed a milk dealer."

															"'Producer' means a person producing milk within the State of
New York."

															"'Store' means a grocery store, hotel, restaurant, soda
fountain, dairy products store and similar mercantile
establishment."

															"'Consumer' means any person, other than a milk dealer, who
purchases milk for fluid consumption."

Summary: In Nebbia v. New York, the Supreme Court upheld a New York statute that fixed minimum prices for milk sales to protect small stores from larger distributors who could offer lower prices. The Court ruled that price regulation is valid if it's reasonable and addresses a public need, like ensuring an adequate milk supply. This case set a precedent for government intervention in business to protect the public interest, with the Court emphasizing that regulations must be reasonable and not arbitrary.