dissenting.
Mr. Justice Van Devanter, Mr. .Justice Sutherland, Mr. Justice Butler and I think the challenged judgment should be reversed.In Nebbia v. New York, 291 U. S. 502, 539, we stated reasons in support of the conclusion that the New York Milk Control Act of 1933 infringed the due process clause. We adhere to what we there said.
The present cause raises a distinct, although subordinate, question. Assuming that the general price fixing provisions of the Control Act are valid, do the provisions *265which permit other dealers to sell below the minimum price prescribed for appellant deprive it of the equal protection of the laws? The answer should be in the affirmative.
Rational classification, based on substantial differences, is within legislative power. An act which permits dealer. A to sell at less than the price fixed for dealer B obviously denies equality; and in the absence of some adequate reason for different treatment, the enactment' is invalid.
Here appellant differs from favored dealers only in that it possesses a well- advertised brand, while they do not. And solely because of that fact, the-Legislature undertook to handicap it and thus enable others profitably to share the trade. There is no question of unfair trade practices or monopoly.
By fair advertisement' and commendable service, appellant acquired the public’s good will. The purpose is to deprive it of' the right to benefit .by this and thereby aid competitors to secure the business. This is grossly arbitrary and oppressive. ■
To support the legislation, it is said the Legislature believed that a fixed minimum price to stores would not preserve the existing economic method of attaining equality of- opportunity. Apparently, this means that a dealer, who through merit has acquired a good reputation, can be deprived of the consequent benefit in order that another may trade successfully. Thus the statute destroys equality' of opportunity — puts appellant at a disadvantage because of merit.
Merely-because on a given date there were differences in prices under open competition, offers no rational'reason for legislation abolishing competition and perpetuating such differences. The status existing under competitive conditions certainly is not preserved by destroying competition. Formerly, appellant' had the right to adjust prices to meet trade exigencies and thus protect itself *266from loss of business. Now it must stand helpless while adversaries take possession of the field. It may suffer utter ruin solely because of good reputation, honestly acquired.