The appeal is from a judgment of the Superior Couid of Fulton County sustaining the general demurrers to the petition brought by Clifton A. Ward, Chairman of the Georgia Milk Commission, praying that the named defendants, who are alleged to be corporations engaged in the sale of milk and other dairy products within the Atlanta Milk Shed to retail customers at less than the price fixed by the Georgia Milk Commission, be temporarily and permanently enjoined from continuing to sell milk below the price fixed by the commission.
The question presented is whether the price fixing provision *757of the Milk Control Act violates the due process clause of the Constitution of Georgia. While there are other assignments of error, a ruling on this question decides the case. For that reason the decision is limited to this issue.
This court in the full bench decision of Harris v. Duncan, 208 Ga. 561 (67 SE2d 692), held that the Act (Ga. L. 1937), p. 247, as amended; Code Ann. § 42-523 et seq.), conferring upon the Milk Control Board the authority to fix the price of milk, violates Art. I, Sec. I, Par. Ill of the Constitution of Georgia (Code Ann. § 2-103), the due process clause, in that it restricts the freedom of contract. See also Williams v. Hirsch, 211 Ga. 534 (87 SE2d 70). This full bench decision can be reversed only by the concurrence of all seven Justices of this court, unless there has been some material amendment, or facts that would make the question of law different from that existing in the older decision.
In 1952 (Ga. L. 1952, pp. 55-70) the General Assembly amended the 1937 Act (Ga. L. 1937, pp. 247-264), as previously amended, which amendment, as the commission contends in its brief, was an “attempt to provide and maintain freedom of contract by providing a procedure through which contracting parties might go in order to arrive at a price of their choosing. . .” However, the commission in its brief and in oral argument concedes that the issue in the present ease is whether the price fixing provision violates the Constitution, and states that the case should be decided on that question, with which we agree. We find that the issue is the same as in Harris v. Duncan, 208 Ga. 561, supra, in which event the commission asks that it be overruled. Seven Justices of this court are not willing to overrule it; thus it controls this case.
There is no merit in the commission’s contention that Harris v. Duncan, supra, is not a full bench decision because of the special concurrence of Chief Justice Duckworth, as he concurred in the ruling that the Milk Control Act violates the due process clause of the Georgia Constitution. The basis of his special concurrence was that he was of the opinion that the court was in error in holding that the Act violated the Federal Constitution, because, as he stated: “Insofar as the Federal question is *758concerned, we are precluded by the decision in Nebbia v. New York, 291 U. S. 502, and would be required to sustain the Act as against the attack based upon the Federal Constitution.” Harris v. Duncan, 208 Ga. 561, supra, at p. 566.
It is further argued that the Harris case is not a binding precedent because the decision was predicated on the erroneous assumption by the court that the emergency provision of the Milk Control Act was eliminated by the 1949 amendment. The court there began the opinion with the statement: “The Act (Ga. L. 1937, p. 247), as amended (Code Ann. § 42-523 et seq.), with the emergency feature thereof stricken by the Act of 1949, p. 78, is here attacked on the ground that the authority therein to fix the price of milk is in violation of” the due process clause of the State Constitution. Whether or not the court was in error in assuming that the emergency provision of the Act had been stricken, the court ruled (p. 563) that: “Before the General Assembly can authorize price fixing without violating the due process clause of our Constitution, among other requirements, it must be done in a business or where the property involved is ‘affected with a public interest,’ and the milk industry does not come within that scope.”
We do not agree with the contention of the commission that the older case of Fleisher v. Duncan, 195 Ga. 309 (3) (24 SE2d 15), a full bench decision, is controlling in the present case. The court there stated: “Since the petition failed to show a right to injunctive relief, for the reason stated, it is unnecessary to determine other questions raised — as to whether plaintiffs also had an adequate x-emedy at law . . . ; and whether the Act was unconstitutional for any reason assigned that has not already been decided. See Holcombe v. Ga. Milk Producers Confederation [188 Ga. 358 (3 SE2d 705)]; Bohannon v. Duncan, 185 Ga. 840 (196 SE 897); Gibbs v. Milk Control Board, 185 Ga. 844 (196 SE 791), and cit.” As to the constitutional questions raised, the court merely stated that since the petition failed to state a cause of action for injunctive relief, it was .unnecessary to determine “whether the Act was unconstitutional for any reason assigned that has not already been decided,” in other words, for any additional reason not included *759in those already decided in the cases cited. We recognize that the meaning of that sentence may be somewhat uncertain and ambiguous, but it is clear that it did not amount to a holding that the rulings made as to the constitutionality of the Act in those cases were adopted by this full bench decision.
Judgment affirmed.
All the Justices concur, except Mohley and Undercofler, JJ., who dissent.