In re Willing

PLUMMER, J. It is hereby ordered that the opinion and orders of this court, filed June 23, 1938, in the matter of this cause, be vacated, annulled and set aside, and the following opinion and orders adopted in lieu thereof:

The petitioner herein was arrested for failure to comply with section 737.5 of the Agricultural Code of the state of California, in that he engaged as a purchaser and distributor of fluid milk, etc., without first having obtained a license therefor, and giving a bond provided for in the section just referred to.

[368]The petition raises the question of the constitutionality of section 737.5 of the Agricultural Code, and bases the objection of the constitutionality of said section on the grounds that section 737.12 of the same code renders the licensing and bonding provisions relative to distributors, discriminatory.

Section 737.5, supra, requires every distributor of fluid milk or fluid cream to obtain a license and file a bond in an amount proportionate to the extent of the business conducted by the distributor. Section 735.3 (f) defines a distributor as follows: “Distributor means any person, whether or not such person is a producer or an association of producers, engaged in the business of distributing or handling fluid milk or fluid cream for sale, including persons who pasteurize, bottle or process fluid milk or cream, who distribute fluid milk or fluid cream at wholesale, retail, or otherwise to hotels, restaurants, stores or other establishments for consumption on the premises, to stores and establishments for resale, or to consumers.’’

Section 737.12, supra, eliminates the provisions of section 737.5 from retail stores.

Section 735.3 (g) defines retail stores as retail grocery stores, restaurants, confectioners, or other similar businesses where fluid milk or fluid cream is sold to the general public for consumption ofi the premises. The act provides for the giving of surety bonds only, which is admitted to be valid if applicable to all persons engaged in the same business.

It is likewise conceded by the petitioner that if the act in question is not discriminatory, or if it were to apply to all persons dealing in fluid milk, it would be constitutional.

The basis of the contention of the petitioner rests upon that portion of the act which eliminates grocery stores, etc., from the provisions thereof, and also upon the further contention that manufacturers of milk products are not included within the provisions of article III of the Agricultural Code. The claim is made that there is no reasonable distinction between the business carried on by a distributor, a manufacturer or a proprietor of grocery stores, etc., and the distributors of fluid milk and fluid cream to consumers.