United States of America or any of the other provisions of the Constitution, but is a matter of legislative determination as to whether or not these controls are deemed necessary in accordance with the proper police powers of the State of Pennsylvania.
36. Plaintiff, by use of the so-called "profit-dividend," is, in fact, attempting to circumvent the provisions of the Pennsylvania Milk Marketing Law by giving a discount or rebate in violation of properly promulgated Official General Orders of the Milk Marketing Board.
37. There is no credible evidence that plaintiff has paid the so-called "profit-dividend" from profits of the cooperative in accordance with the Agricultural Cooperative Act of 1887.
38. The plaintiff introduced no books or records to indicate whether the dividends paid consumers were earned on milk sales or other products which it sold through its stores.
39. The imposition of minimum retail price controls on milk does not prevent the importation of milk into Pennsylvania from other states and these price controls have only an incidental effect on and do not burden interstate commerce.
The plaintiff has not established that there is a substantial question that the Pennsylvania Milk Marketing Law, or its predecessor, the Pennsylvania Milk Control Law, constitutes a violation of the fourteenth amendment to the United States Constitution, or that Pennsylvania lacks authority, pursuant to the exercise of its police power, to provide for minimum consumer resale prices. On the contrary, we find that the establishment of minimum resale prices represents a permissible exercise of the police power of Pennsylvania, and is constitutional. Cf. Mayo v. Lakeland Highlands Canning Co., 1940, 309 U.S. 310, 60 S. Ct. 517, 84 L. Ed. 774; Nebbia v. New York, 1934, 291 U.S. 502, 54 S. Ct. 505, 78 L. Ed. 940; Milk Control Board of Pennsylvania v. Eisenberg Farm Products, 1939, 306 U.S. 346, 59 S. Ct. 528, 83 L. Ed. 752; Sylvan Seal Milk, Inc. v. Milk Control Commission, E.D. Pa. 1967, 270 F. Supp. 117; Milk Control Commission v. Battista, 1964, 413 Pa. 652, 198 A. 2d 840, appeal dismissed, 1964, 379 U.S. 3, 85 S. Ct. 75, 13 L. Ed. 2d 22; Milk Control Commission v. Lily-Penn Food Stores, Inc., 1969, 434 Pa. 189, 253 A. 2d 630. Neither has plaintiff established that there is a substantial constitutional question as to the validity of the method used to arrive at minimum prices. The method is not arbitrary, capricious or unreasonable. Cf. Sylvan Seal Milk, Inc. v. Milk Control Commission, E.D. Pa. 1967, 264 F. Supp. 1001. The plaintiff has not established that retail price controls on milk prevents the free importation of milk into Pennsylvania, and, at most, the price controls do not burden but have only an incidental effect on interstate commerce which would not prevent Pennsylvania from pursuing its legitimate goals. Plaintiff has produced only two out-of-state producers which it claims do not ship milk into Pennsylvania and one of these does not do business in Western Pennsylvania. The Pennsylvania controls do not have as their goal the regulation of commerce almost wholly interstate in character, but rather are aimed primarily at the regulation of prices among Pennsylvania's dealers inter se. See Milk Control Board of Pennsylvania v. Eisenberg Farm Products, supra. Finally, the question of preemption is without merit. Federal Order No. 36 was issued pursuant to the Federal Agricultural Marketing Agreement Act of 1937, as amended. The Act specifically excludes the Secretary of Agriculture from establishing minimum prices for milk at the resale (wholesale and retail) level. While Federal Order No. 36 and the Pennsylvania Milk Marketing Board Orders fix minimum prices which the dealers or handlers must pay to producers, the minimum prices fixed by the Board are higher than those fixed by the Federal Order, and there is no impossibility of dual compliance. Each can operate without conflict. There is no indication that Congress has intended to preempt this field, and this conclusion cannot be drawn from the nature of the regulated subject matter. County Board of Arlington County, Va. v. State Milk Commission, 1954, 346 U.S. 932, 74 S. Ct. 374, 98 L. Ed. 423; Florida Lime & Avocado Growers, Inc. v. Paul, 1963, 373 U.S. 132, 929, 83 S. Ct. 1210, 10 L. Ed. 2d 248; Parker v. Brown, 1943, 317 U.S. 341, 63 S. Ct. 307, 87 L. Ed. 315.
The action will be dismissed.