(dissenting) — No one can take exception to the abstract propositions stated in the majority opinion. They require no citation of authority. Granting that the Ferguson-Hendrix Co. case was correctly decided, the real question in this case was not even discussed in that opinion. The Ferguson-Hendrix Co. case decided nothing more than that the provision of the commission merchant law requiring a surety bond was constitutional. It did not assume to pass upon other provisions of the law.
The power of the state to pass laws to preserve the peace, to protect the health and safety of the citizen, and promote his welfare is axiomatic. That such laws must be general in their application is admitted. It does not follow that, in the application of its power, the state cannot make classes. But it is equally true that the state cannot make classes or a class within a class, unless the class to which the law is made to apply and the distinction drawn bears some reasonable relation to the evil sought to be cured. In this case the evil sought to be remedied is the impositions practiced upon the producers of farm and dairy products who live at a distance from the market places and who are, perforce of that circumstance, compelled to trust their commodities to those who sell their goods on commission.
Granting that it is within the power, as is held by the majority and as I admit, of the state to provide that all commission merchants must take out a license and must give a bond, and make the report required by the statute and subject their books to the inspection of all who are interested, the real point in this case is not whether that can be *33done, but whether the legislature can say that it shall be done by some commission merchants and not by others.
Section 16 of the act defines commission merchants. It says that commission merchants within the meaning of this act are those whose principal business is dealing in farm and dairy products. Unless we can find some reason for the distinction between those who are doing some of their business with the farmers and dairymen and those who are doing the principal part of their business with farmers and dairymen, the law cannot be sustained. What is the test? A reference to the evil and the proposed remedy. Under the law, a man or firm who is doing a $100,000 business, $40,000 being with goods consigned from farmers and dairymen, and $60,000 in flouring mill products, commercial food stuffs and fruits from foreign shipments, would clearly be exempt because the principal part of his business is not with farmers and dairymen. On the other hand, if a firm does a business of $10,000, all or the major part of which is with the farmers and dairymen upon consigned goods, he is subject to the law because it is the principal part of his business. If a grower ships a ton of potatoes to the man who does the $100,000 business, his farm consignments being the smaller part of the business, and at the same time ships a ton of potatoes to the man who does the $10,000 business, it being all with the farmers and dairymen, can it be said that there is any reasonable ground upon which to rest the distinction made by the law? Is not the farmer just as liable to imposition from the man who is doing the lesser part of his business in farm and dairy products as he is from the man who is doing the greater part? It follows that no reasonable ground for the distinction can be drawn.
This principle was noticed and adhered to by this court in the Spokane employment agency case, Spokane v. Macho, 51 Wash. 322, 98 Pac. 755, 130 Am. St. 1100, 21 L. R. A. (N. S.) 263. We there said:
*34“When exercising its power to regulate a business, the municipality may classify subjects of legislation, but the law must treat alike all of a class to which it applies, and must bring within its classification all who are similarly situated or under the same condition.”
We also quoted from the case of State v. Sheriff of Ramsey County, 48 Minn. 236, 51 N. W. 112, 31 Am. St. 650:
“The classification must be based on some reason suggested by a difference in the situation and the circumstances of the subjects treated, and no arbitrary distinction between different kinds or classes of business can be sustained, the conditions being otherwise similar.”
We also quoted the principle from the case of Tugman v. Chicago, 78 Ill. 405:
“An ordinance which would make the act done by one penal and impose no penalty for the same act done under like circumstances by another, could not be sanctioned or sustained because it would be unjust and unlawful.”
Other cases and McQuillin, Municipal Ordinances, 193, were cited to sustain our opinion. Under this case and all the elementary rules of law, the distinction made by the statute must be sustained by the character of the act and not by the extent of the act, of the amownt of business done by those against whom the law is directed. Indeed, this case is an aggravated violation of the rule, for the one who does a lesser part of his business with the farmer and dairyman may in fact be the worst offender.
The Macho case was followed in Seattle v. Dencher, 58 Wash. 501, 108 Pac. 1086, 137 Am. St. 1076, 28 L. R. A. (N. S.) 446, and State v. Robinson Co., 84 Wash. 246, 146 Pac. 628. See, also, State v. McFarland, 60 Wash. 98, 110 Pac. 792, 140 Am. St. 909. It is possible that a law providing that all commission merchants having transactions with farmers and dairymen exceeding in amount a certain sum could be sustained as a proper classification, but to hold that the aggregate amount of business done with the farmer and *35dairyman is a basis of classification cannot be sustained by reason or authority. They might just as well say that dry goods merchants dealing with farmers and dairymen should give a bond as a precaution and remedy against imposition and that hardware merchants should not.
“A much worse discrimination would be a discrimination between citizens of the same class engaged in the same business, where there is no reason suggested by the difference in the situation and circumstances of the subjects treated; for not only is the business in this case similar and identical, but it is purely and simply a difference in the mode of transacting the business [amount of business], a mode which cannot possibly affect any principle or affect deleteriously the consumer or purchaser of the article sold.” Seattle v. Dencker, supra.
Neither can it be said that § 16 of the act can be held to be unconstitutional and the rest of the act remain. Section 16 is the very cap-stone of the arch. Without it there could be no law, for the legislature in that section says who are and who are not commission merchants within the meaning of the statute. Following the rule and construction laid down by us in the stock food case, State v. Robinson Co., supra, and by all courts when a similar question has been presented, we must presume that the law would not have been passed unless a section had been included exempting a certain class within a class. Otherwise no reference would have been made to the character and amount of business done. The law would have been complete without it. Answering a similar contention made in the stock food case, we said:
“The Attorney General further argues that, if § 13 (Id., § 6022) is void, it may be excluded from the act, and the balance of the act may still remain a valid- law. But it is apparent that § 13 (Id., § 6022) is a material part of the act. It is more than probable that if this section had not been inserted the act would not have passed. It was inserted for the purpose of excluding cereal and flouring mills from the operation of the act. To say that this section is *36unconstitutional and does not affect the remainder of the act is to say that every person, firm or corporation is bound to comply with the terms of the act, when the legislature itself has said that cereal and flouring mills are not bound by the act. In short, to hold this section void and the rest of the act valid is to determine, in face of an express statement of the legislature to the contrary, that the act applies to all persons dealing in concentrated commercial feeding stuffs.”
The statutes in Wisconsin, Illinois and Minnesota are not the same as ours. They do not make a class within a class. The statutes in each of those states cover “every,” “any” and “all” “persons, firms and corporations” dealing in farm products on commission. Undoubtedly the power to classify all who are so engaged is within the power of the legislature. In State ex rel. Beek v. Wagener, 77 Minn. 483, 80 N. W. 633, 778, 1134, 77 Am. St. 681, 46 L. R. A. 442, the court, after finding that a law controlling commission merchants was constitutional, noted some of the abuses calling for the law, and of the sale of farm products, said:
“And, with respect to other agricultural products and farm produce, it is to be observed that they are largely of a perishable nature, and subject to rapid deterioration in transit, or after reaching the consignee. This fact gives to the latter an opportunity to falsify his report of a sale to the distant consignor, and to insist that the article consigned had become more or less unmarketable before sale could be made; and here, as in the case of grain,,the latter has little or no opportunity to ascertain the truth. Without wishing to intimate that fraud of this nature had actually become so prevalent as to justify the accusation made, we do say that a majority of the people in this state had become convinced of the truth of these charges, and in great numbers besieged the legislature in behalf of the suppression of the alleged evil practices. This was a matter of common knowledge. It was publicly believed that the business of selling agricultural products and farm produce on commission had become saturated with false and fraudulent methods, to the great injury of a large class of our citizens, who were compelled to deal with commission men, and who were powerless to detect *37or prevent the wrong, and that the business had thus become sufficiently affected with public interests as to be the proper subject of police regulation.”
The principle of the law is right, but it cannot be sustained under an act making the things complained of penal in one class and not in another. It seems to me that a joker was deliberately slipped into the law.
For these reasons, I dissent.
Morris, C. J., Fullerton, and Crow, JJ., concur with Chadwick, J.