(dissenting).
While admittedly some of the language of the opinions in the Gwynette and Stone cases might be persuasive of the result reached by Mr. Justice Legge, I am of the view that those decisions are distinguishable, factually and legally, and, hence, not controlling here. Those cases decided that the State could not constitutionally fix the minimum price at which the retailer could sell milk. The court assumed, factually, in each case that the milk had been purchased by the retailer at a wholesale price, either fixed by the State or otherwise satisfactory to the producer and distributor, and that such milk was the absolute property of the retailer. As I understand them, the foundation of each of those decisions was the proposition that “One’s ownership of prop*288erty consists not only of his right to possess it, but also his right to use it as he pleases, to sell it at his own price and to give it away if he wishes to do so.”
While it is shown in the instant case that some small amount of milk is actually purchased and owned outright by the retailers, it is clear that the vast majority of fresh milk that reaches the general public does so through the marketing arrangement detailed in the opinion of Mr. Justice Legge. Under this arrangement, even though the legal title to the milk be in the retailer, it is quite obvious that, as found and held by the lower court, the producer and distributor under such arrangement still have a beneficial and economic interest in the milk while in the hands of the retailer, and the milk is, therefore, not the absolute property of the retailer.
The statutory provision here under attack does not seek to fix any price, either minimum or maximum, for which a retailer may sell milk. He is left absolutely free to fix any price he may desire on milk which he really owns. Fairly construed, all the law seeks to do is to prevent a retailer from putting a higher price on a brand of milk, in which he has comparatively little economic interest, than he does on some other competing brand, whether owned by him or not, and thereby price out of the market the brand of milk discriminated against. The retailer, of course, does not have to accept the brand of milk which he seeks to discriminate against, but he does accept it for sale to the public, and, in reality, accepts it, and pays for it, contingent upon its sale to the public.
For the foregoing briefly stated reasons, I conclude that the instant case is soundly distinguishable from our prior decisions; that the statute under attack is a proper exercise of the police power of the state, and infringes on no constitutional rights of the appellants.
If, contrary to my view, the law is to be held unconstitutional, I strongly suggest that the court should squarely *289meet and decide a contention made here, which was not passed upon in either Gwynette or Stone. It is contended by the State that the statute is expressly authorized by Article IX, Section 13, of the Constitution which provides, inter alia, that “The General Assembly shall enact laws to prevent all trusts, combinations, contracts and agreements against the public welfare;”.
My view of the case would make it unnecessary to reach or decide this question, and I shall not, therefore, discuss it at length. I do, however, make these observations. The constitutional language is that the General Assembly “shall enact laws to prevent * * In Henderson v. McMaster, 104 S. C. 268, 88 S. E. 645, the court said,
“The Constitution (article 9, § 13) requires the Legislature to enact laws to prevent agreements against the public welfare. The Legislature must primarily determine what agreements are against the public welfare.”
The conclusion of the General Assembly and of the lower court that the statute here was essential in the interest of the public welfare, to prevent eventual monopolistic control of the supply of fresh, fluid milk available to the citizens of South Carolina is certainly not without evidentiary support.
Brailsford, J., concurs.