On this appeal, the single question presented is whether the 1959 Fair Trade Act (Sections 1333.27 to 1333.34, inclusive, Revised Code) has the effect of nullifying the decision of the Supreme Court in Union Carbide Carbon Corp. v. Bargain Fair,Inc., 167 Ohio St. 182. In that case, Judge Zimmerman, at page 186, said:
"A majority of this court has reached the conclusion that *Page 231 Section 1333.07, Revised Code, which prohibits those who are not parties to the stipulated-price contract from selling trademarked items at a price lower than that stipulated by the manufacturer, is unreasonable and unenforceable and constitutes an unauthorized exercise of the police power in that there is no substantial relation to the public safety, morals or general welfare. Moreover, it contravenes the `due process' provision of the Ohio Bill of Rights by arbitrarily and monopolistically denying a seller, who has not entered into any price-fixing contract with the manufacturer, the privilege of disposing of his own property on terms of his own choosing, and in additiondelegates legislative power and discretion to private persons." (Emphasis supplied.)
In the case at bar, McNeill, J., sitting by assignment in this county, held in effect that the 1959 Fair Trade Act was subject to certain objections which the Supreme Court found to exist in the 1936 Fair Trade Act (Sections 1333.06 to 1333.10, Revised Code) for two reasons, namely, (1) that the Supreme Court in the Union Carbide case rejected the theory of the adequacy of proprietary interest as a basis for fair-trade legislation, and (2) that regardless of any other changes in the Act, the delegation of legislative power and discretion to private persons remains. These provisions were specifically interdicted by the Supreme Court in the Union Carbide case.
Inferentially, it should be noted that two other Common Pleas Courts have held that the 1959 Act is subject to certain of the objections found by the Ohio Supreme Court to exist in the 1936 Act.
In the case of Helena Rubinstein, Inc., v. Cincinnati Vitamin Cosmetic Distributors Co., 84 Ohio Law Abs., 143, Judge Gusweiler of the Common Pleas Court of Hamilton County held the 1959 Act to be unconstitutional on all the grounds asserted by the Supreme Court in the Union Carbide case.
The latest decision on the subject was rendered April 14, 1961, by Judge Leach of the Common Pleas Court of Franklin County in the case of Bulova Watch Co., Inc., v. Ontario Store ofColumbus, Inc., 86 Ohio Law Abs., 585, who held, on demurrer, in a very able opinion, that the 1959 Act is unconstitutional as a delegation of legislative power to private persons and, in that respect, comes within the prohibition of the decision of the Supreme *Page 232 Court in the Union Carbide case. The logic and reasoning of these opinions, as well as that of McNeill, J., in the instant case, while not in any sense binding upon this court, are, in my opinion, strongly persuasive on reason, logic and authority.
The great vice in the 1959 Act (as in the 1936 Act) is the delegation of legislative power to private persons without any proper formula, standard or control whatsoever. Thus, those who have the most to gain are granted the greatest delegation of legislative power, and private persons are permitted unlimited license to fix and set prices at will. Thus, the major effect is to permit private persons, by the delegation of legislative power, if they so determine, to increase and maintain high prices, particularly of drugs and vitamins. In the ordinary course of events, this will lead to a monopoly and make it difficult for persons of ordinary means to purchase regularly those aids to health and well-being so necessary under modern conditions. In this respect, the interests of the consuming public are totally ignored and the retailer is prevented from conducting his business as he sees fit.
Inasmuch as I am in accord with the opinion of the trial judge in the case at bar, I feel that no useful purpose would be served by a further discussion of the issues in this dissenting opinion. Therefore, I conclude that the judgment of the Common Pleas Court should be affirmed for the reasons generally set forth in the opinion of the trial judge. In so concluding, I am not unmindful of the case of Standard Drug Co., Inc., v. GeneralElectric Co., 202 Va. 367, 117 S.E.2d 289, discussed at great length in the majority opinion. While that case may be somewhat persuasive, it must be distinguished from the instant case in certain respects. (See the opinion of Leach, J., in theBulova Watch Company case, supra [86 Ohio Law Abs., 585].) Regardless of any arguments to the contrary, this court must be bound by the decision of the Ohio Supreme Court in the UnionCarbide case which is presently the established law of this state. It is the prerogative of the members of the Supreme Court to determine what weight it shall give to decisions of courts of sister states. *Page 233