Appeal, No. 13, Jan. T., 1964, from decree of Court of Common Pleas of Montgomery County, No. 62-10954, in equity, in case of Milk Control Commission of the Commonwealth of Pennsylvania v. Joseph Battista, Frank DiGiambattista and Albert B. DiGiambattista, trading as Nor-view Farm. Decree reversed.
Anthony W. Novasitis, Jr., Assistant Attorney General, with him William D. Morgan, Assistant Attorney General, and Walter E. Alessandroni, Attorney General, for Milk Control Commission, appellant.
J. Brooke Aker, for appellees.
Before Bell, C.j., Musmanno, Jones, Cohen, Eagen, O'brien and Roberts, JJ.
OPINION BY MR. JUSTICE ROBERTS
The Pennsylvania Milk Control Commission filed a complaint in equity in the Court of Common Pleas of Montgomery County to enjoin appellees, trading as Nor-View Farm, from selling milk which had been removed from the farm prior to sale to consumers at less
than minimum prices established by the commission.*fn1 At the time the action was filed, the named defendants were not licensed by the commission, nor was any application for a license pending. The milk sold originated on Nor-View Farm from appellees' own herd. Not having their own processing plant, appellees removed the milk in its bulk state to a nearby dairy, where it was pasteurized, homogenized, bottled, and returned to appellees' farm for sale.
By preliminary objections, appellees asserted that they were exempt from the licensing and pricing provisions of the Milk Control Law, April 28, 1937, P.L. 417, as amended, 31 P.S. §§ 700j-101 - 700j-1302 (Supp. 1963). Section 402 (31 P.S. § 700j-402 (Supp. 1963)), under which the exemption is claimed, declares: "The commission may, by official order, exempt from the license requirements provided by this act milk dealers or handlers .... However, milk dealers or handlers exempted by this section from the license requirements of this act shall continue to be subject to all the other provisions of this act relating to milk dealers or handlers: Provided, however, That in cash sales of milk, to consumers in containers owned and provided by the consumer, if he shall have produced all the milk on the farm where sold and such milk has at no time left the producer's farm prior to its sale to the consumer and he shall have neither purchased nor received milk from other producers or handlers and his total sales to consumers do not exceed two gallons to any one consumer in any one day, the producer so selling milk shall be exempt from the provisions of this act." (Emphasis supplied.)*fn2
Appellees' argument involves two phases. First, they contend that the requirement that milk remain on the producer's farm prior to sale to customers (italicized in the quotation above) is unreasonable, arbitrary, discriminatory, capricious and beyond the scope of the legislative purpose. More specifically, they urge that it is violative of the due process clause of the Fourteenth Amendment to the Constitution of the United States, Article I, §§ 1 and 9 of the Pennsylvania Constitution, and Article III, § 7 of the Pennsylvania Constitution which prohibits special legislation. Second, they urge that so construed, the clear language of § 402 exempts their operation from regulation under the Milk Control Law.
The parties stipulated that "the only issue involved in the present controversy is the right of defendants to sell milk at unregulated prices where such milk is ...