Reynolds v. Milk Commission

Gregory, J.,

delivered the opinion of the court.

The appellants were perpetually enjoined and restrained from distributing milk in the city of Staunton until they shall have received a license from the Milk Commission, and from selling milk in the Staunton-Waynesboro market area at any other price than that fixed by the Commission. They were also required to pay any and all assessments levied upon them under the authority of the Commission. It is of the decree carrying the injunction into effect that the appellants complain.

*960 The pleadings in the case consist of the bill of complaint filed by the Milk Commission and the answer thereto filed by the appellants. The cause was heard upon an agreed statement of facts.

In the bill of complaint it was alleged that the complainant, the Milk Commission was created by the provisions of chapter 357, page 558, of the Acts of the General Assembly of 1934; that said act grants authority to the complainant to regulate and control the milk industry in Virginia, and to make, adopt and enforce all rules, regulations and orders necessary to carry out the purposes of the act; that the complainant was given power to define and create natural market areas within which milk shall be produced to supply such area; that the Commission may require all distributors to obtain a license and that licenses may be classified; that complying with the provisions of the act the Commission established the Staunton-Waynesboro market area, fixed the price of milk and adopted rules and regulations for the industry; that seventy-five per centum of the producers and distributors in that area were desirous of having the Commission exercise its power there; that previously, milk was being sold in Staunton at prices ranging from eight cents to twelve cents per quart; that all efforts to stabilize the price had failed because a few producers and distributors declared their purpose and intention to market milk below the cost of milk produced in compliance with the health laws of the State.

The Commission finds and alleges that milk is an essential item of diet; that the production and distribution thereof is a major industry and represents more than twenty-five per centum of all agricultural income of the State; that it is of greater value than the combined income from corn, wheat, tobacco and apples and that it represents an investment of many millions of dollars.

It is alleged “that the fluid milk production, sale and distribution is affected by many factors peculiar to itself and necessitates governmental control in order to insure an economical, profitable and healthful conduct of the business; *961 that milk is perishable, cannot be stored, and is a medium for the growth of bacteria and the transmission of diseases; that, under approved methods of distribution into larger markets, the industry must carry a surplus of approximately twenty per centum, as the demand and supply vary from day to day; that the adjustment of supply and demand is hindered by factors difficult to control, as surplus presents very difficult problems, as the price realizable is necessarily much less than that for milk sold for consumption in fluid form, and that the stabilization of prices requires that the burden of the loss in the marketing of surplus milk be shared equally by all producers and distributors in each market area; that, if this burden is not shared by all, a condition arises resulting in a demoralized situation on the market, leading in practically all instances to disastrous price cutting, and that this market condition may be and is brought about by small distributors carrying a much less surplus in proportion to that necessarily carried by the larger distributors.

“While complainant has not had the advantage of the findings of a commission of inquiry into the dairy business in Virginia, the Virginia State Dairymen’s Association, began an extensive study of all of the numerous phases in connection with the production and distribution of milk in Virginia as early as May, 1933. These associations reached the conclusion, after a most extensive investigation, that milk and cream were sold in a large majority of cities at prices substantially below a reasonable cost of production of high-grade, healthful milk, and that many unfair trade practices made it impossible for producers to receive a fair price for their milk; that science has demonstrated that the unregulated production of milk and unrestricted prices of cost production of milk under exceedingly unsanitary conditions, and the distribution and sale without careful marketing precautions, and the consumption of all milk except that which is carefully and cleanly produced are exceedingly harmful to all classes of consumers and especially dangerous to the many infants who are principally reared upon *962 fluid milk and to children a large part of whose diet consists of milk.

“That the public have accepted the findings of science is best illustrated by the fact of common knowledge to all; that practically all cities and almost all incorporated towns have passed ordinances regulating the production and distribution of milk and requiring tests of all milch cows kept in dairy herds, and providing for the feeding of cows, the conditions and surroundings of barns, the kind, care and cleanliness of utensils, the cleanliness of the clothing, and for the periodical, personal inspection of persons concerned in milk production.”

Complainant then alleges that Reynolds, Miller and Montgomery, the appellants here, are selling milk in Staunton without a license as is required by the act; that they are selling below the prices fixed by the Commission for that market; that they have declared their intention to continue to sell below the market price and they refuse to pay the assessments provided for in the act and rules promulgated thereunder. It is then alleged that the success of the purpose of the General Assembly will fail if they are permitted to continue to violate the regulations and the act.

The defendants filed their answer in the court below. They denied none of the allegations above set forth, but admitted that they were violating the act in that they were selling milk in Staunton without first securing a license; that they were not complying with the price regulation; and that they were selling below the prices fixed by the Commission.

They give as their reason for their admitted violation of the act that it is unconstitutional and void; that it contravenes section 1, article I, of the Constitution of Virginia; and that it contravenes the Fourteenth Amendment to the Constitution of the United States.

After hearing the cause upon the bill, answer and an agreed statement of facts the chancellor perpetuated an injunction, which had been previously awarded, restraining *963 the defendants from violating the act or the regulations, and in an able opinion gave his reasons for so doing.

In the main there are just two questions to be decided. Does the act contravene the Virginia Constitution? Does it contravene the Fourteenth Amendment of the Federal Constitution ?

It is conceded that if the Virginia act is no broader than a somewhat similar act which was recently enacted by the legislature of New York, the decision of the Supreme Court in the case of Nebbia v. People of State of New York, 291 U. S. 502, 54 S. Ct. 505, 78 L. Ed. 940, 89 A. L. R. 1469, where the New York act was upheld as not violative of the Fourteenth Amendment, is binding here and decisive of that question. However, section 1, article I, of the Virginia Constitution is relied upon here as having been violated by the Virginia act. The challenged provisions of the Virginia and Federal Constitutions are quite similar. Both guarantee to the citizen certain inherent rights, and, in our opinion, if the act violates the Federal Constitution it also will violate the Virginia Constitution. On the other hand, if it does not offend the Federal Constitution, then it will not offend the Virginia Constitution.

On March 29, 1934, the General Assembly enacted as an emergency measure the act in question which provides for the supervision, regulation and control of the milk industry in Virginia (chapter 357, Acts 1934, page 558). The preamble to the act sets forth the legislative determination and declaration of certain facts. Briefly those facts are that the production and distribution of milk and cream is an industry upon which, to a substantial degree, the prosperity, and health of the Commonwealth depend; “and the present economic emergency is in part the result of the disparity between the prices of milk and cream and other commodities, which disparity has diminished the power of milk producers to purchase industrial products, has broken down the orderly production- and marketing of milk and cream and has seriously impaired the agricultural assets supporting the credit structure of the Commonwealth and local political *964 subdivisions thereof;” that unfair, unhealthful, unjust, destructive and demoralizing trade practices exist and are carried on in the dairy industry which impair the industry and the constant supply of pure wholesome milk to the inhabitants of the State and constitute a menace to the health and welfare of the people.

To protect the well-being of the people of the State and to promote the public welfare, public health and public peace, the production, distribution and sale of milk is declared by the legislature to be a business affecting the public peace, health and welfare. It is then determined that the industry should be supervised and controlled in the exercise of the police power.

A Milk Commission is created and declared to be an instrumentality of the Commonwealth. Its powers are prescribed and defined. Among the powers of the Commission are the following: To investigate all matters pertaining to the production, processing, storage, transportation, distribution and sale of milk in the State; to supervise, regulate and control the production, transportation, processing, storage, distribution, delivery and sale of milk for consumption in the State; to act as arbiter in disputes, between the producers and distributors; to examine into the business, books and accounts of any producer or distributor, to issue subpoenas to the producers and distributors and require them to produce their records. The Commission is empowered to make, adopt and enforce all rules, regulations and orders necessary to carry out the purposes of the act. Provision is made for the service of the rules and orders of the Commission.

Before the Commission exercises its powers in any market area a public hearing is had and the Commission determines whether it will be to the public interest that its powers be exercised in that market. The Commission may withdraw from any market after a public hearing if the public interest demands it.

If a majority of the producers and distributors (measured by volume) of a market area apply to have the Com *965 mission withdraw the exercise of its powers in that particular area, the act provides that the Commission must withdraw.

The act provides that the Commission, after public hearing and investigation may fix the prices to be paid producers and may fix the minimum and maximum wholesale and retail prices to be charged for milk in any market and it may fix different prices for different grades of milk. In determining the reasonableness of prices, the Commission shall be guided by the cost of production and distribu- ^ tion in the area, the necessary operation, processing, storage and delivery charges, the prices of other food's and the welfare of the general public.

A license may be required of producers and distributors, and the Commission may grant or decline a license or revoke one already granted, after due notice and a hearing. Any order of the Commission refusing or revoking a license, may be reviewed upon appeal to the Supreme Court of Appeals.

Natural market areas may be designated and defined and the limits of milksheds may be fixed. The Commission may delegate its powers to milk boards of certain market areas for the purpose of carrying out the act. Distributors may not buy milk from unlicensed producers and distributors must be licensed in order to distribute milk.

The Commission is required to prepare an annual budget and shall collect from the local boards sufficient sums in the form of monthly assessments which are to be paid to the State Treasurer and by him placed to the credit of an account known as “Milk Commission Account.” From this account appropriation is made to take care of the expense of operation.

The act provides for the creation of local milk boards in market areas and defines their duties and powers to be such as are delegated to it by the Commission. The expenses for operation of the local boards ■ and the assessments of the Commission are met by an assessment against producers and distributors based on the quantity of milk handled.

*966 If the act is violated, in addition to any other remedy, the Commission may apply to any court of record in the city of Richmond for relief by injunction, if necessary, without being compelled to allege or prove that an adequate remedy at law does not exist. Section 13 provides a penalty for violations of the act and fixes the punishment. These are the outstanding features of the act.

The chancellor held that there were no substantial differences between the Virginia act and the New York act (Agriculture and Markets Act, N. Y. section 300 et seq., as added by Laws 1933, chapter 158). In this we agree, for in applying the constitutional test the minor differences in phraseology need not be considered.

In considering the question of constitutionality there must be borne in mind certain fundamental principles. They were enumerated by the chancellor in this language:

“Outside the power ceded to the federal government, the power of the legislature of Virginia to enact statutes is without limit, except as restrained by the Constitution of Virginia.

“Courts ought not to pronounce any act of the legislature unconstitutional unless it is plainly so—so plain as to leave no doubt on the subject. To doubt is to affirm its constitutionality. There is no such thing as a doubtful constitutional statute. Every presumption is in its favor, and there is no stronger presumption known to the law.

“The particular form in which it is charged that this legislation is contrary to section 1 of article I is that it is an undue restraint and interference with the freedom of the individual to contract, and that the particular nature of this interference was the attempt to control prices and the area in which a given producer might sell or distribute his product.

“All constitutional restraint must be read in the light of the police power of the State. On proper occasions this power may rise superior to both State and Federal Constitutions, for in its exercise, when occasion demands lies the right of the State to preserve its very existence. As life, *967 liberty and pursuit of happiness are the inalienable rights of the individual of which he cannot by compact divest either himself or his posterity, so to the State is the police power an inalienable right of which it does not divest itself by any compact. Its scope is the protection of the health, safety and morals of the people, and their property. It is an indeterminate and indefinable power that inheres in all legislative agencies. This power has never been defined or circumscribed by fixed limits. Some have described it as the law of necessity and the power of self-preservation. It is elastic and expands automatically to protect the public, and extends to all great public needs.”

It should also be borne in mind that an act is not to be construed as meaning that regulations promulgated under it will at some future time be exercised capriciously, arbitrarily or inequitably. It will be time enough to complain when, if ever, the power shall be thus abused.

Then too, another general principle applicable here is that a State legislature deals with situations from a practical standpoint. It is better qualified than the court to determine the necessity, character and degree of regulation of an industry, which new and perplexing conditions may require; and its conclusions should not be disturbed by the courts unless they are clearly arbitrary and unreasonable.

The legislative facts declared in the act are nowhere denied, nor are the facts alleged in the bill denied; therefore, those facts may be considered as definitely established. They conclusively show the imperative need for regulating the milk industry even to the extent of fixing prices, in order to prevent its serious impairment or destruction as well as to protect the public interest.

There are two outstanding cases holding that the State may control private business, even to the extent of fixing prices, when it is affected with a public interest or clothed with a public use, without violating the Federal Constitution. They are Munn v. Illinois, 94 U. S. 113, 24 L. Ed. 77, and German Alliance Ins. Co. v. Lewis, 233 U. S. 389, 34 S. Ct. 612, 58 L. Ed. 1011, L. R. A. 1915C, 1189. Another *968 recent case makes a much broader application of the principle. In Nebbia v. People of State of New York, 291 U. S. 502, 54 S. Ct. 505, 78 L. Ed. 940, 89 A. L. R. 1469, it was held that 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; that the courts are without authority to declare such policy or when it is declared by the legislative arm, to override it. If the laws passed have a reasonable relation to a proper purpose and are neither arbitrary nor discriminatory the requirements of due process are satisfied.

These three cases are illustrative of the tendency of the Supreme Court to extend the principle rather than to limit it. A great many cases involving State control over private business have reached the Supreme Court but it is not necessary to refer to them. The three cited above are sufficient authority to sustain the act challenged in this proceeding.

We are of the opinion that it is not necessary for this court to apply the principle in its broadest aspect, nor is it necessary to commit the court to the proposition that the State has not the power to control private business unless it is affected with a public interest. The application of the principle in the Nebbia Case goes farther than it is necessary for us to go in the case at bar.

In the Munn Case, supra, the Constitution of Illinois declared all elevators or warehouses, where grain or other property was stored for compensation, to be public warehouses. Later a law was enacted fixing the rates of storage. The law was sustained against the contention that it deprived the owners of their property without due process of law. In that case which was decided in 1877, the argu- • ment was made (just as it is made in the present case) that a decision upholding the law would be so sweeping and dangerous that it would comprehend and subject to legislative control all of the business and affairs of life and prices would be fixed by the State on all commodities. Mr. Justice Field in a vigorous dissent pointed out that the decision of the majority was subversive of the rights of private *969 property which theretofore had been believed to be protected by constitutional guarantees against legislative interference. He observed that if the opinion of the majority be sound law then there was no protection, either in the principles upon which our republican government is founded, or in the prohibitions of the Constitution, against the invasions of private property; that all property and all business in the State would be held at the mercy of the legislature. He said that the public had no greater interest in warehouses privately owned than it had in the homes of families; that the legislature could fix rental prices of residences and if the owner does not like the rates, he can cease renting his property. He concluded that such a doctrine had never been before asserted by any judicial tribunal in the United States. Again, the justice observed that if the legislature of a State, can determine against the consent of the owner the prices he shall receive for his property, it can thereby completely deprive him of his property. In other words, it can confiscate and destroy his property by virtue of its power to fix the prices he shall receive for it.

The earnest argument of learned counsel for the appellants here against the act in question is almost the identical argument used by Mr. Justice Field against the warehouse act in his dissenting opinion. But after considering the case for more than a year the Supreme Court upheld the warehouse act, in the face of the fact that Mr. Justice Field was of the opinion that it was subversive of the rights of private property and opened the door to price-fixing for every commodity and property privately owned.

In that case the court went no further than to hold that the State, under its police power, has the right to regulate a business which is affected with a public interest, or clothed with a public use. The Munn Case is a landmark. It is accepted as an authoritative and accurate statement of the principle on which the right to fix rates or prices is based.

Another landmark in the law was reached when the Supreme Court in 1914 held that fire insurance rates might *970 be fixed by the rate-making body of a State, and that this would not be a prohibited invasion of private rights or do violence to the Constitution. German Alliance Insurance Co. v. Lewis, 233 U. S. 389, 34 S. Ct. 612, 618, 58 L. Ed. 1011, L. R. A. 1915C, 1189. An act of Kansas was before the court in which the State had undertaken to regulate the rates to be charged by fire insurance companies for insurance. The companies contended that the act was unconstitutional and void as offending the due process clause of the Fourteenth Amendment. To support their contention the companies asserted that the business of fire insurance was a private one and therefore the State was without power to fix the rates for the service; that to exercise such right would be a taking of private property for a public use; that the business of insurance is a natural right receiving no privilege from the State; that the contracts of insurance are voluntarily entered into and cannot be compelled. Mr. Justice McKenna, in delivering the opinion of the court, asks whether a contract of fire insurance is private and as such has constitutional immunity from regulation. In other words, is the business, of fire insurance so far affected with a public interest as to justify legislative regulation of its rates? He asserts “that a business, by circumstances and its nature, may rise from private to be of public concern, and be subject in consequence, to governmental regulation,” and finally he concludes that the business of fire insurance is affected with a public interest and therefore its rates are subject to State regulation. It was argued there, just as it is argued here, that to uphold the act would have the effect of subjecting to regulation every act of human endeavor and the price of every article of human use but the court said in answer to that argument: “We might, without much concern, leave our discussion to take care of itself against such misunderstanding or deductions. The principle we apply is definite and old, and has, as we have pointed out, illustrating examples. And both of the expressions of principle and the citation of the examples we have tried to confine our decision to the regulation of *971 the business of insurance, it having become ‘clothed with a public interest,’ and therefore subject ‘to be controlled by the public for the common good.’ ”

Mr. Justice Lamar wrote a dissenting opinion in the case. He used arguments quite similar to those used by Mr. Justice Field in his dissent in the Munn Case, thirty-six years before. He argued that if a State could, without offending the Constitution, establish insurance rates then it could fix the price of everything and that private business generally will become “the center of a circle of price-making legislation, that in its application, will destroy the right of private property and break down the barriers which the Constitution has thrown around the citizen to protect him in his private property.” But after careful consideration the majority of the court upheld the statute notwithstanding the predicted calamities.

The next and last landmark in the law of business regulation and control by the State is the case of Nebbia v. People of State of New York, 291 U. S. 502, 54 S. Ct. 505, 515, 78 L. Ed. 940, 89 A. L. R. 1469. There the legislature enacted a statute which placed the milk and dairy industry under complete control and provided for the prices to be received by producers for milk and the prices the public should pay to producers or distributors. In the State court, People v. Nebbia, 262 N. Y. 259, 186 N. E. 694, Chief Justice Pound, for the majority of the court, in delivering the opinion held that the milk or dairy industry was affected with a public interest and that the legislature had the power to regulate it and even fix the prices to be charged.

When the case reached the Supreme Court the old principle that had been applied in the Munn Case and the German Alliance Insurance Company Case, to the effect that a business had to be affected with a public interest before it could be controlled by State legislation, was abandoned and a new test was applied. The court held that private business could be regulated by legislation which could reasonably be deemed to promote public welfare provided such legislation was not arbitrary or discriminatory; that it must be *972 conceded that the milk industry is subject to regulation in the public interest, and that there is no constitutional principle which bars a State from correcting existing maladjustments by legislation touching prices provided it is reasonable and the public welfare requires it. It was further held that, “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 [94 U. S. 113, 24 L. Ed. 77], supra. Nor is it the enjoyment of a monopoly * * And speaking of the phrase “affected with a public interest,” the court said:

“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 not met because the laws were found arbitrary in their operation and effect. 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.”

Again the court said:

“* * * ‘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, 337, 338, 24 S. Ct. 436, 457, 48 L. Ed. 679, 700, 701. 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 *973 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, 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.

“The law-making 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. Where the public interest was deemed to require the fixing of minimum prices, that expedient has been sustained. If the law-making 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. 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 not secure to any one liberty to conduct his business in such fashion as to inflict injury upon the public 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 *974 adopt, and hence an unnecessary and unwarranted interference with individual liberty.”

It will be observed that Mr. Justice McReynolds dissented in vigorous language using almost the same line of reasoning and argument that was used by Mr. Justice Field in the Munn Case and by Mr. Justice Lamar in the German Alliance Insurance Co. Case, but notwithstanding these views entertained by Mr. Justice McReynolds, the majority of the court upheld the New York statute.

As previously stated, it is not necessary to commit this court to the broad views expressed by Mr. Justice Roberts in the Nebbia Case in order to uphold the Virginia act. That case, however, is authority for the view that the milk industry may be regulated, even to the extent of fixing prices, if the public interest demands it.

In Virginia the industry has been subjected to many rules and regulations for many years. In fact at the time the present act was passed the industry was already controlled by the State in nearly every respect except in the field of prices. Some of those regulations were that it was necessary to have a permit to sell milk; that certain containers had to be used and plainly labeled with the name and address of the producer; that milk had to be graded and tested ; that tuberculin tests had to be applied to the cows; that cows should be kept in separate barns; that the barns should be constructed in a certain way and should provide a certain number of square feet for each cow. Some fifteen or twenty other regulations were also prescribed covering nearly the entire field of the dairy industry. The validity of these many regulations has never been questioned. Can it be argued that they do not affect private property, but that a regulation fixing prices does ? Can it be said that one has the natural right to engage in the milk industry when he is required to secure a permit which may be granted or withheld? How can it be said that the industry is not affected with a public interest when it is already circumvented by so many regulations made for the benefit of the public? Those regulations constitute restraints upon the *975 exercise of personal rights for they prohibit one from dealing with his own property freely and as he chooses. Yet no one has asserted that they were void because in violation of some constitutional provision. In Virginia, they have never been challenged so far as we are advised.

There can be no controlling difference between the fire insurance business and the' milk industry in so far as regulation and price fixing by the State are concerned. Regulations in both instances limit the control the owners have over their property. If the fire insurance business is affected with a public interest, then surely the milk industry is so affected.

The legislature has declared the milk industry of the State to be affected with a public interest. It has found and established the facts Upon which the declaration is based. The allegations of the bill contain pertinent facts to support the conclusion. Neither the facts established and declared by the legislature nor those alleged in the bill have been denied. There are no facts before this court upon which we could conclude that the milk industry is not affected with a public interest. If the Commission promulgates unreasonable, arbitrary, or foolish regulations the courts may be depended upon to declare them void. Future arbitrary regulations may be invalid without affecting the constitutionality of the act.

Our conclusion is that the Virginia act is constitutional.

It is argued that the act is invalid because it authorizes the levying of an assessment without giving any notice thereof. The act provides that the Milk Commission shall prepare an annual budget and collect such sums as are needed for operating the Commission from the local milk boards by way of monthly assessments and the local boards are required to pay the assessments. The amount is limited to a sum not exceeding two cents per hundred pounds of milk handled in each market. The local milk boards meet their expenses and the assessments levied upon them by the Commission, by levying an assessment upon the producers *976 and distributors. The local boards determine the amount of each monthly assessment necessary to cover expenses. The assessments are limited to cover the actual expense of operation. The distributors, under the act, provide the local boards with a report of the quantity of milk handled and from this report the assessment is made. In other words the distributor makes his own return from which it is determined the amount he is to pay. He then charges each producer according to the weight of the milk purchased from each. Under these circumstances the distributor and the producer do not need formal notice. They know at all times that an assessment will be made and they can,, periodically, determine for themselves just how much it will be. In addition to this, it is quite clear that the assessment is not the levying of a tax, nor is the act a revenue measure. It is merely incident to the regulation, and is proper under the police power of the State. Robinson v. City of Norfolk, 108 Va. 14, 60 S. E. 762, 15 L. R. A. (N. S.) 294,128 Am. St. Rep. 934; Phoebus v. Manhattan Social Club, 105 Va. 144, 52 S. E. 839, 8 Ann. Cas. 667; 26 R. C. L. pp. 20, 21, 22.

The cases cited by the appellant are not in point because they involve a tax of some kind levied for the purpose of raising revenue for general purposes.

It is urged that because the Commission is granted power to “make, adopt and enforce all rules, regulations and/or orders necessary to carry out the purposes of this act,” this is the delegation to the Commission of the power to enact legislation which is both prohibitory and penal in character and which will be operative only in such milk areas as the Commission may define.

In Turner v. Com., 149 Va. 468, 141 S. E. 128, a conviction for violating a regulation of a legislative board was affirmed by this court. The Supreme Court, in the Nebbia Case, upheld a similar provision. The New York act, section 304, delegates to the Milk Board the power to promulgate orders and rules which have the effect of law. Section 308 is a grant of power to the board to issue licenses, *977 and to suspend or revoke all licenses. A violation of an order of the board is made a misdemeanor. In addition to a criminal prosecution, the act provides for an injunction, as in the case of the Virginia act. The license provision of the Virginia act is not challenged in this proceeding. However, the act provides that refusal or revocation of a license may be reviewed by this court.

The appellants here have not applied to the Milk Commission to have any rule or order it may have issued corrected or invalidated. No objection to any order or rule has been pointed out to the Commission and it has had no opportunity to make any correction of its erroneous orders, if any such orders have been issued.

“Where one complains that regulations promulgated under legislative authority by a State board are unreasonable and oppressive, he should seek relief by applying to that board to modify them.” Petersen Baking Co. v. Bryan, Governor, 290 U. S. 570, 54 S. Ct. 277, 279, 78 L. Ed. 505, 90 A. L. R. 1285. There is no suggestion here that if the appellants had sought relief of the Milk Commission, their request would not have been fairly heard or that they would have been denied any relief to which they may have been entitled.

Our view of the Virginia act is that it does not contravene either the Federal or the Virginia Constitution, and this being true the legislature had the power to provide for an injunction to restrain a violation of the act.

Affirmed.