On the original disposition of this case the present writer dissented from the majority opinion but wrote no opinion expressing his views in regard to the issue presented.
The case is now before us on Rehearing granted and it is my view that the certiorari should be quashed, for the following reasons: Section 2 of the Act here under consideration, inter alia, provides:
"Fair Trade Contracts, Minimum Resale Prices, Provisions, Concerning. — No distiller, rectifier, blender, distributor or vendor, or anyone for them, who holds a license in this State to sell intoxicating liquors, as defined in Section 5 of Chapter 16,774, Laws of Florida, 1935, and any and all amendments thereto, which bears a trade mark, brand, label, or name of the producer or owner and which is in fair and open competition with commodities of the same general class produced by others, shall offer any intoxicating *Page 773 liquors for sale in this State in any manner or at all without complying with the provisions of this Act.
"All intoxicating liquors sold in this State by any licensee, licensed to distribute intoxicating liquors, must be sold according to a fair trade contract, and each such licensed distributor shall file with the Beverage Department a complete list of all intoxicating liquors offered for sale which list shall indicate minimum resale prices on all intoxicating liquors according to the size of containers in which sold and in addition thereto such distributor shall file with the Beverage Department all minimum resale price changes as they shall occur from time to time which such price list and changes thereto shall constitute a fair trade contract under this Act and as provided in Chapter 18395, Laws of Florida, 1937; Chapter 19201, Laws of Florida, 1939, and any and all amendments thereto, which fair trade contracts must provide the following minimum resale prices:
"(a) On all sales from licensees, licensed to distribute intoxicating liquors to licensed vendors, a minimum mark-up resale price for said licensed vendor of not less than forty (40 %) per cent, provided that thirty-nine (39%) per cent minimum mark-up resale price is allowable herein in order that the retail selling price be established at a twentieth part of a dollar instead of an odd cents price.
"(b) All minimum mark-up resale prices shall be calculated and based on the actual prices to the licensed vendor, plus transportation charges and Federal and State taxes."
So it is that the Act in the very beginning provides that each licensed distributor shall file with the Beverage Department a complete list of all intoxicating *Page 774 liquors offered for sale, which list shall indicate minimum resale price at which intoxicating liquors according to the size of containers in which sold, and in addition thereto such distributor shall file with the Beverage Department all minimum resale prices changed as they shall occur from time to time which such price list and charges thereto shall constitute a fair trade contract.
Now under this provision "A", being a distributor, may determine for himself at what price he will sell Seagram's AAA Whiskey and advise the Beverage Department his minimum price on that brand of whiskey. Distributor "B" may determine that he will sell that same brand of whiskey at another price and file with the Beverage Department his minimum price on that brand of whiskey. If distributors "A" and "B" both sell to vendor "X", vendor "X" must add 40% to the price of the liquor purchased from "A" and 40% to the price of the liquor purchased from "B". So it is that the Act provides no uniformity of price.
On the other hand, a half dozen distributors, being all of the distributors in one trade area, may get together and fix the resale price on Seagram's AAA whiskey at whatever they determine the traffic will bear and thereby require the vendors in that trade area to get the price fixed by the combination of distributors plus 40%.
So it is that the fixing of the retail price under the terms of this Act is not left within the power of any State Board or instrumentality, nor is it fixed by the legislature, but is left entirely to the determination of the distributor. *Page 775
The only power in any State Agency is that conferred upon the Beverage Department to see to it that those prices fixed by the distributors are enforced. This provision alone is enough to condemn the Act as being unconstitutional and void.
But we shall go a little further. The property right of the trade mark owner is not only unprotected but is distinctly violated by the provision of this Act. It is uniformly recognized that the trade mark owner has a property right which he may protect by contract and it has been held that this property right (good will) may be protected as against one who deprives him of the benefits resulting from the same. See Old Dearborn Distilling Co. v. Seagram-Distillers, 299 U.S. 183, 81 L.Ed. 109, 106 A.L.R. 1476.
It also appears to be the law of the land that a fair trade Act in this regard can not be maintained as valid, except where the Act provides for the making of voluntary contracts between the producer and trade mark owner on the one hand and the distributor on the other. Such was the rationale of the opinion in the Seagram-Distillers case, supra. See also Waco Products Co. v. Reed Drug Co., 225 Wis. 474, 274 N.W. 426, 125 A.L.R. 1346.
So far as we have been able to find, no statute has been upheld which attempted to compel the producer of a trade-marked commodity to enter into contracts with retailers fixing retail prices. Nor do we think that such provision could be upheld because it is contrary to the due process and equal protection clause of both State and Federal Constitutions. This is not all. Price fixing Acts have been upheld only upon the theory that such may be resorted to to protect the interest of the public and to prevent destroying competition *Page 776 in businesses or vocations, the success of which is materially infected with public interest. In other words, the subject matter to which the price fixing applies must be one which the public interest demands be kept in operation and functioning without monopolistic control. See Commonwealth of Penn. v. Zasloff, 3A (2) 67, 128 A.L.R. 1120; Fairmont Creamery Co. v. Minn. 274 U.S. 1, 47 Sup. Ct. 506, 71 L.Ed. 893, 52 A.L.R. 163; Nebbie v. New York, 291 U.S. 502, 54 Sup. Ct. 505, 78 L. Ed. 940; Fla. Dry Cleaning Laundry Board v. Everglades Laundry, 137 Fla. 290, 188 So. 380; Miami Home Milk Producers' Ass'n. v. Milk Control Board, 124 Fla. 797, 169 So. 541.
Nor do these constitute all the reasons why this Act is void. There is not one thing in the Act to indicate that there was any legislative finding that any necessity existed for the terms of the Act; nor is there any power or authority vested in any Board to make any finding of fact in regard thereto. No hearing is provided for; no due process of law is contemplated, all of which are certainly necessary to make a price fixing Act valid. See Miami Laundry Co., et al., v. Fla. Dry Cleaning Laundry Board, 134 Fla. 1, 183 So. 759.
It is contended that merely because Section 2 of Article XIX of the Constitution provides that:
"The power of the legislature to provide necessary laws to carry out and enforce this Article shall include the right to provide for manufacture or sale by private individuals, firms and corporations or by the State or by counties, cities or political subdivisions, or by any governmental commissions or agency to be created for that purpose."
Chapter 21001 is within the purview of the Constitution. We think that this provision of the Constitution *Page 777 must read in pari materia with other parts of the Constitution and that if the legislature, as it did in the enactment of Chapter 21001, fails to provide for due process of law or fails to provide equal protection of the law or exercises its power in an arbitrary and otherwise unconstitutional manner, then the provisions of Article XIX of the Constitution can not serve to give such Act validity. We are not concerned with the policy of legislative Acts and, therefore, do not comment on the policy of this Act. To determine what legislative policy was behind the Act we are left to roam in the realm of guess work because, as herein-before stated, there is no finding of fact expressed in the Act as a basis for its enactment. Nor is there any power lodged in any State Agency to determine any fact which would warrant its enforcement; nor is there the fixing of any retail price to the consumer, either fixed by the legislature or provision made for its fixing by a State agency. The individual distributor or a combination of distributors of intoxicating liquors may fix the price at which it, or they, will sell to the retailer and the Act provides that the retailer must after adding the Federal and State tax mark up the retail price to include at least 39% profit with the only power in the State agency, the Beverage Department to see that prices based on the price fixed by the distributor, or distributors, is enforced; all of this regardless of the right of the owner of the trade mark under which the liquors are manufactured and sold to, by contract or otherwise, control or protect his property right in the trade mark; also without any showing or finding that the public interest demands the successful operation of the liquor business and without any showing or finding that the arbitrary *Page 778 minimum profit of 39% is essential to the successful operation of a retail liquor business, both in thickly populated centers and in sparsely populated communities.
If we assume that the consumption of intoxicating liquor is contrary to the promotion of health and good morals, and that the provisions of the Act by insuring a high price for such liquor will tend to reduce the consumption, we are then faced with the fact that the reduction of consumption will necessarily reduce the State's revenue derived from sales. To increase the State revenue from sales is the policy of the State established by legislative tax Acts in this regard. Probably the public health and morals would be better conserved by there being no available supply of intoxicating liquors for beverage purposes but our Constitution, Article XIX, establishes a contrary policy. So there is nothing in this Act which indicates that it is intended either to promote health, safety or morals or to promote State or public welfare.
The Act upon its face is one not designed to effect the public health, safety or welfare, but is designed solely for the protection of the wholesale liquor dealer by allowing him to control the retail prices so that his customers may be forced to sell liquor at a substantial profit, if they can sell it at that profit in competition with the bootlegger, and thereby make the wholesalers' collections more secure.
Certiorari heretofore granted is quashed and the order of the Circuit Court is affirmed.
BROWN, C. J., TERRELL, THOMAS, and ADAMS, JJ., concur.
WHITFIELD and CHAPMAN, JJ., dissent. *Page 779