[L. A. No. 29530. In Bank. Aug. 12, 1968.]
[69 Cal.2d 177]
[4a] For all of the above reasons we believe that the department could reasonably conclude that the authority delegated to it embraced the questioned rule. As we shall now point out, the same and some analogous reasons support its decision that the rule was "reasonably necessary to effectuate the purpose of the statute." (Gov. Code, § 11374.)
 Our function in passing upon the efficacy of the means employed by the agency to effectuate the statutory purposes is, again, a very limited one. As we have said, "the court should not substitute its judgment for that of an administrative agency which acts in a quasi-legislative capacity. ... [A court] will not ... superimpose its own policy judgment upon the agency in the absence of an arbitrary and capricious decision." (Pitts v. Perluss (1962)
 Nor, in reaching this conclusion, can we consider alternative methods of regulation available to the department. "[I]n determining whether the director has acted arbitrarily [69 Cal.2d 180] or capriciously, this court does not inquire whether, if it had power to draft the regulation, it would have adopted some method or formula other than that promulgated by the director. The court does not substitute its judgment for that of the administrative body." (Pitts v. Perluss, supra,
[7a] Plaintiffs contend that, even assuming arguendo that rule 105(a) promotes orderly marketing and distribution, the prohibition of quantity discounts must fail on the ground that it constitutes a price-fixing measure. Essentially, plaintiffs urge that only an explicit expression by the Legislature can delegate to an agency the power to engage in "price- fixing." (See, e.g., Levine v. O'Connell (1949) 275 App.Div. 217, 220-221 [88 N.Y.S.2d 672], affd. (1950) 300 N.Y. 658 [91 N.E.2d 322].)
[7b] In urging the opposite result, plaintiffs rely heavily on Schenley Industries, Inc. v. Munro (1965) 237 Cal.App.2d 106 [46 Cal.Rptr. 678]. In that case the court struck down the Department of Alcoholic Beverage Control's rule 100, which promulgated an elaborate formula for proscription of quantity discounts of more than 8 percent on cases of distilled spirits. Schenley is possibly distinguishable from the instant case, however, on two grounds. First, instead of an authorization to encourage "orderly wholesale marketing and wholesale distribution" of the product involved, the court in Schenley confronted a rule based on a much more general legislative mandate to the department--to make "such reasonable rules as may be necessary or proper ... to enable it to exercise the powers and perform the duties conferred upon it ...." (Bus. & Prof. Code, § 25750.) The court only held that this general authorization was insufficient support for the rule in question. Second, Schenley did not involve a departmental rule designed to eliminate spoilage, since the products involved in that case could be safely stored without refrigeration. But to the extent that Schenley is inconsistent with this opinion, particularly in its reliance on the proposition that a prohibition of quantity discounts constitutes "price-fixing" requiring explicit legislative authorization, it is disapproved.
[69 Cal.2d 185] For the reasons therein stated, I would affirm the judgment of the trial court.
[ ] The Constitution
[346 P.2d 737], and Wilke & Holzheiser, Inc. v. Department of Alcoholic Beverage Control, [55 Cal.Rptr. 23, 420 P.2d 735], sustaining the Fair Trade Act as applied to alcoholic beverages) that the rule promotes temperance by eliminating price cutting to the consumer.
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