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Continued from CVS, Part III of V

In the midst of the Great Depression our state legislature adopted the New York Milk Control Acts of 1933 and 1934.

Milk was in abundant supply and prices were low.  Dairy farmers had taken to dumping milk in an effort to limit supplies and cause an increase in prices.  Dairy farmers sold their milk to producers that took the raw milk and processed it as milk, cheese or butter and sold these products to dealers.  Prices paid to dairy farmers had fallen well below the cost of maintaining a dairy farm.  To get a sense of the civil unrest at the time see Newspaper Clippings from New York Troopers History website.

The New York State Legislature enacted price controls to set a floor on the price for milk paid to producers by dealers; the producers had promised the Legislature they would share the profits with the dairy farmers.

G.A.F. Seelig, Inc. was a New York dealer that supplied New York hotels and it purchased 220 cans¹⁾a can held forty quarts of milk.  In 1901 Harry Houdini first performed his milk can escape. of milk and cream every day from its parent corporation in Vermont. These sales to G.A.F. Seelig, Inc. were below the New York price controls, prosecution was threatened and the case was taken to the U.S. Supreme Court.

New York State, by its then Attorney General, John J. Bennett, Jr.,²⁾no speculation is offered as to whether the former New York State Attorney General is any relation to the John J. Bennett Esq., who has appeared before the village trustees to represent CVS argued that if prices were too depressed then health and safety precautions would be compromised in favor of lowering the cost of production.  He argued the State had a vital interest in protecting the health and safety of its residents by enacting minimum prices.  “Health and Safety” concerns traditionally fall within the “police powers” reserved to the states.

In a stunning and unanimous reversal of a then recent 1934 Supreme Court precedent³⁾An earlier prosecution of Rochester resident Leo Nebbia had been upheld.  Nebbia had been convicted for selling two quarts of milk and a loaf of bread for eighteen cents, when the state price control minimum for milk was at nine cents per quart.  The free bread giveaway had violated the price 2 x 9¢  = 18 ¢plus the illegal loaf.  Nebbia v. New York, 291 U.S. 502 (1934)  Nebbia was fined Five Dollars! Justice Cardozo wrote in 1935:

 “What is ultimate is the principle that one state, in its dealings with another, may not place itself in a position of economic isolation. Formulas and catchwords are subordinate to this overmastering requirement. Neither the power to tax nor the police power may be used by the state of destination with the aim and effect of establishing an economic barrier against competition with the products of another state or the labor of its residents. Restrictions so contrived are an unreasonable clog upon the mobility of commerce.”

Baldwin v. G. A. F. Seelig, Inc.  294 U.S. 511

Tomorrow – we will reach the final case in the quartet of U.S. Supreme Court cases that determine what happens on Sunset Avenue…

In Part V of V

1.	↑	a can held forty quarts of milk.  In 1901 Harry Houdini first performed his milk can escape.
2.	↑	no speculation is offered as to whether the former New York State Attorney General is any relation to the John J. Bennett Esq., who has appeared before the village trustees to represent CVS
3.	↑	An earlier prosecution of Rochester resident Leo Nebbia had been upheld.  Nebbia had been convicted for selling two quarts of milk and a loaf of bread for eighteen cents, when the state price control minimum for milk was at nine cents per quart.  The free bread giveaway had violated the price 2 x 9¢  = 18 ¢plus the illegal loaf.  Nebbia v. New York, 291 U.S. 502 (1934)  Nebbia was fined Five Dollars!

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By:  Progress for Westhampton Beach

Continued from CVS, Part II of V in which we ride on the Sally up the Blackbird Creek.

This part of the old story involves Thompson Willson, the State of Delaware, and the Blackbird-Creek Marsh Company.

The State of Delaware authorized the Blackbird-Creek Marsh Company to construct a dam that blocked a navigable, deep water, creek that was a tributary to the Delaware River.

Thompson Willson, being the owner of a 95 ton¹⁾this does not refer to the weight of the ship.  This had originally been measured as the number of tuns (casks of wine) a ship could carry, but by 1720 this was calculated using the “Old Builder’s Measurement, OBM” which was a formula that used the length and beam of the ship for sailing vessels to calculate tonnage that could be carried by the ship. sloop called the Sally, was of the opinion that the dam infringed upon his right to use the navigable waterways.  Thompson Willson sailed up the creek and destroyed the dam to restore his free sailing access to Blackbird Creek.

The Blackbird-Creek Marsh Company brought an action in Delaware Supreme Court claiming that Willson had committed a trespass vi et armis²⁾by force of arms and sought damages of $20,000.³⁾$500,000 in current dollars  The Delaware State Court found for the Blackbird-Creek Marsh Company and against Willson.

Willson decided to take his case to the U.S Supreme Court, but did not enlist the services of Daniel Webster.  His counsel is reported only as “Mr. Coxe.”  Coxe argued successfully that:  even though no federal statute and no federal license had been issued to Willson like the one held by Thomas Gibbons, nonetheless, the State of Delaware had infringed on interstate commerce by authorizing the damming of Blackbird Creek.  By this time it was not disputed that navigable waterways were subject to the jurisdiction of the federal government.⁴⁾if you ever have occasion, ask Riverhead Town Justice Allen M. Smith about:  the footbridges over the Peconic River in Grangebel Park (above the waterfalls) the Army Corp. of Engineers, and navigable waterways.  Chief Justice John Marshall agreed and delivered the opinion of the Court which held that this case involved the “dormant” Commerce Clause.

Nowhere will you find the word “dormant” in the U.S. Constitution. It has now become a legal term of art.  The Marshall Court used “dormant” to describe the powers possessed by Congress with respect to interstate commerce that Congress had not yet affirmatively exercised.

Thompson Willson still went home the loser.  While the Supreme Court accepted Willson’s argument and expanded the Court’s jurisdiction over future cases involving the “dormant” Commerce Clause, it also accepted that the State of Delaware’s argument that Delaware was exercising permissible police powers.⁵⁾we will return to police powers shortlyDelaware argued it was protecting the health safety and welfare  of its residents by eliminating one of those

“sluggish reptile streams, that do not run but creep, and which,    wherever it passes, spreads its venom, and destroys the health  of all those who inhabit its marshes.”⁶⁾Times sure change, see what the EPA says today.

Willson’s counsel unsuccessfully argued that it was not the State of Delaware that was acting for the benefit of its citizens, but rather private citizens who had been authorized by the State of Delaware to act in furtherance of their own personal economic interests. Willson’s argument on this point failed and the U.S. Supreme Court affirmed the decision of the the Delaware Court.

Chief Justice John Marshall once again⁷⁾recall the 1803 case of Marbury v. Madison 5 U.S. 137 in which Justice Marshall declared that the Supreme Court provides final constitutional review of Congressional statutes. had expanded the authority of the U.S. Supreme Court and the federal government by recognizing a “dormant” Commerce Clause, while remaining deferential in this particular case to the principles of federalism and the rights reserved to the states.

There is only a little more before we reach CVS, and Sunset Avenue in Westhampton Beach.

Tomorrow — we will come back to New York State, in the depths of the Great Depression and the Milk Wars in Part IV of V

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By:  Progress for Westhampton Beach

Continued from CVS, Part I of V

Thomas Gibbons would not be so easily deterred by an injunction from a New York Court.  He retained the services of Daniel Webster who took an appeal to the U.S. Supreme Court from the New York Chancery Court’s injunction.  In the U.S Supreme Court Webster argued on behalf of his client, Thomas Gibbons, that New York State had violated the Interstate Commerce Clause of the United States Constitution.¹⁾United States Constitution Article 1 section 8 gives,  among other enumerated powers,  Congress the power to regulate Commerce with foreign Nations, and among the several States, and with Indian Tribes.

To get into the nitty gritty, the New York Court had held that the monopoly license that had been granted by the State of New York to Aaron Ogden took precedence over a federal coastal license issued to Thomas Gibbons.  The Supreme Court in a 6-0²⁾Congress increased the number to seven in 1807, to nine in 1837, then to 10 in 1863.  Then, in order to prevent President Andrew Johnson, who was soon to be impeached, from naming any new Supreme Court justices, Congress passed the Judicial Circuits Act of 1866. This Act reduced the number from 10 to seven.  The Judiciary Act of 1869 then returned the number back to nine.  This and the story of FDR and a Switch in Time Saves Nine probably belongs in another post.  This brief excursion explains why it was a 6-0 opinion.decision held in favor of Thomas Gibbons and his federal coastal license.  The Commerce Clause to the United States Constitution prevailed.

Lest you think we have gone down the rabbit hole because CVS does not come to Westhampton Beach with any kind of federal license or Congressional mandate, we have not. This is just the first variation on the old story that played out again and again.

Tomorrow – a ride on the Sally up the Blackbird Creek… in Part III of V