While unanimity is desirable in matters, of this kind, I am impelled to dissent, after a review of the briefs, the act and the authorities. I do this on the basic ground, that this act constitutes special legislation, forbidden by Art. 3, § 40(30) Mo. Constitution, 1945, which provides that: “The general assembly shall not pass any local or special law: * * * (30) where a general law can be made applicable, and whether a general law could have been made applicable is a judicial question to be judicially determined without regard to any legislative assertion on that subject.” As pointed out in McKaig v. Kansas City, Banc, 363 Mo. 1033, 256 S.W.2d 815, 817-818, few states have constitutional provisions making that determination a judicial question, and consequently authorities from other states are of little value. The court there also, said, loe. cit. 817-818: “““The test of a. special law is the appropriateness of its provisions to the objects that it excludes. It is. not, therefore, what a law includes, that makes it special, but what it excludes.’' * * *»> * * * The ordinance before us excludes all persons engaged in the business of selling all commodities and all mer- • *761chandise except automobiles. In other words, it excludes all persons engaged in the business of selling television sets, radios, phonographs, refrigerators, washing machines, electric and gas ranges and heaters, trailers, golf equipment, furniture, hardware, clothing and many other articles. 'There is no reasonable basis for singling out those people who are engaged in the business of selling automobiles and excluding those people who sell the above enumer•ated articles of merchandise * *
Defendants and intervenors treat this point rather lightly (as, to a certain extent, the opinion also does) with assertions that the milk industry constitutes a recognized ■class, and that it has long been regulated. For many purposes it has, and it will continue to be. But the present act has absolutely nothing to do with questions of sanitation, quality, storage, inspection, or health, • and actually nothing to do with distribution ■or supply, as such. It is, by counsel’s very argument directed solely at “trade practices tending to create monopolies and destroying ■competition * * *” (Intervenors’ brief, p. 28). It is directed solely at the economy ■of the milk industry.
In line with this avowed purpose, the :act now appears as an addition to our Ch. ■416 RSMo 1959, V.A.M.S., which has long dealt in broad terms with Monopolies, Dis-•criminations and Conspiracies. The basic law was first enacted in 1891, and many .amendments have followed, substantially all general in nature. The act now considered, though pursuing the same general aims, singles out the milk business from •all others for its rigorous controls, and for ■a price regulation (if not a “fixing”) based on “cost.” Certainly the milk industry ■constitutes a legislative class for certain purposes; however, milk is perhaps no more essential to human health and welfare than meat, bread, grain, vegetables, fruit, medicines or clothing. Gwynette et al. v. Myers, 237 S.C. 17, 115 S.E.2d 673; Harris v. Duncan, 208 Ga. 561, 67 S.E.2d 692. There is nothing peculiar in the nature of milk which requires an economic classification, and we take judicial notice of the fact that there are recurrent or continuing “price wars” in other commodities besides milk. A classification for legislative purposes must bear a reasonable and substantial relationship to the object to be achieved, and it must not be arbitrary or unreasonable. State on inf. of Taylor v. Currency Services, Inc., Banc, 358 Mo. 983, 218 S.W.2d 600. Defendants and intervenors refer frequently in the briefs to the federal anti-trust statutes proscribing monopolies and restraints of trade, and to the federal cases thereunder, as furnishing examples of an analogous situation. There is no real analogy on this point; those statutes apply to all "commerce.” The analogy suggested may answer other questions raised by plaintiff, but not this one. Certainly none of the federal cases have construed the question of special legislation, and no cases from other states have construed our particular constitutional provision.
The genesis of defendants’ and inter-venors’ arguments seems to lie in the case of Nebbia v. People of State of New York (1934), 291 U.S. 502, 54 S.Ct. 505, 78 L.Ed. 940, 89 A.L.R. 1469. That was a 5^1 decision upholding emergency and temporary milk legislation enacted during the depression of the thirties. Those sought to be protected were farmer-milk producers, not competing dairies. In essence, the case merely held that the industry was “affected with a public interest” and might be so regulated. No question of class legislation was presented or involved. There are subsequent federal cases which uphold somewhat similar legislation not enacted as temporary measures, but upon consideration of due process and equal protection under the federal constitution, — and not on the point with which we are concerned here. In the briefs and in the majority opinion cases are cited as supposedly controlling this particular problem of special legislation. None of these, as we read them, is really in point. We merely note the following as the principal cases cited: In May’s Drug Stores, Inc. v. State Tax Commission, 242 Iowa *762319, 45 N.W.2d 245, a cigarette pricing law was involved and upheld. The contention that the act was a special law does not seem to have been presented. The case illustrates how far legislative action may go, if commodities, articles or industries are to be thus singled out; indeed the opinion indicates (loe. cit. 249) that Iowa had previously, and on two separate occasions, adopted similar legislation regulating petroleum products and farm produce. In McElhone v. Geror, 207 Minn. 580, 292 N.W. 414, the act considered was a general act forbidding the sale below cost of commodities in general use. Clearly that was not class legislation; the question considered was due process, and the essence of the holding was that the state might protect against restraints of trade and monopolies (the very thing already forbidden by our §§ 416.010 to 416.400). In Poole & Creber Market Co. v. Breshears, 343 Mo. 1133, 125 S.W.2d 23, the statute prohibited the sale of any milk or milk derivatives to which any non-milk oil or fats had been added, a measure directed at both health and possible fraud upon the public. In Borden Co. v. McDowell, 8 Wis.2d 246, 99 N.W.2d 146, a statute regulating certain unfair trade practices in the dairy industry was upheld, but the act was apparently not attacked as a special law nor were any constitutional provisions mentioned relating to such a question. In State of Kansas ex rel. Anderson v. Fleming Co., Inc., 184 Kan. 674, 339 P.2d 12, portions of the Kansas act, in many respects similar to ours, were held unconstitutional; the case is certainly of no aid to defendants or intervenors here. It is apparently cited merely because the opinion states that the dairy industry had been regulated more completely than any other industry. The facts in H. P. Hood & Sons, Inc. v. DuMond, 336 U.S. 525, 69 S.Ct. 657, 93 L.Ed. 865, are irrelevant here, and the opinion merely noted that the right of the states to regulate the production and distribution of milk, as intimately related to public health and welfare, had long been recognized. In ABC Liquidators, Inc. v. Kansas City, Missouri, Mo., 322 S.W.2d 876, an ordinance forbidding public auctions-on Sunday was upheld as against the attack that it constituted class legislation. The court said, in part, loe. cit. 885: “ ‘The courts must determine the question, as other purely judicial questions are determined, by reference to the nature of the subject; not. upon proof of facts or conditions, but upon the theory that judicial notice supplies the-proof of what courts are bound to know, and that courts must be aware of those-things which are within the common knowledge, observation and experience of men-generally.’ ” The facts make the case inapplicable here. In effect, the ordinance was-considered as an amplification of the general Sunday closing laws (loe. cit. 880), and' of the long recognized power to regulate auctions (loe. cit. 882-883.) Note also that the ordinance was applicable to all commercial auctions. Certain other citations are wholly irrelevant. It may fairly be said that not a case cited upheld a law even basically similar to the present act as-against the contention that it constituted a special law. It is doubtful if any out-state case could conceivably answer our Missouri problem.
Our general “anti-trust” laws have long been deemed sufficient to permit adequate enforcement of our public policy against unfair restraints of trade and monopolies, in any branch of commerce or industry. State ex inf. Hadley v. Standard Oil Co.,. 218 Mo. 1, 116 S.W. 902, aff. 224 U.S. 270, 32 S.Ct. 406, 56 L.Ed. 760, Ann.Cas.1913D,, 936. In that case some of the illegal acts consisted of “cutting prices” and giving rebates (loe. cit. 1025) and otherwise controlling prices in the accomplishment and maintenance of a monopoly. This general law, as we all know, forbids any agreement,, combination or understanding in restraint of trade or competition (§ 416.010) in the purchase or sale of any product or commodity; it forbids any such agreement or understanding to “regulate, control or fix” the price of any commodity or thing; it forbids discriminations between different localities or communities in purchases or *763■•sales, and it enacts drastic procedures and remedies. In many respects the present act is a particularised duplication of our long-established general law.
I see no reason why all of the asserted ■purposes of the present act might not have been accomplished by a rigid enforcement ■of the existing law, either as it stands, or with general amendments. If specific “cost” factors were deemed necessary in the legislative discretion, they might easily have been added by a general amendment. Various states have enacted “Unfair Practices” Acts generally prohibiting sales below cost. Ann. 118 A.L.R. 506; 128 A.L.R. 1126. It would seem that if a processor in Missouri sells milk to a retailer at an absurdly low wholesale price, and the latter resells it at an absurdly low retail price, at least over a continued period, — there would ordinarily exist some sort of agreement or understanding “in restraint of trade or competition” under existing law. We are not ■here, however, to decide a hypothetical •case.
In passing we note that the Report of the Special Joint Legislative Committee states that it sought to avoid complete price control, “reluctant to adopt a remedy which is potentially as deadly as the malady ⅝ * * ” an¿ “jn the neighboring state of Tennessee the committee found what appeared to be the object of its quest. ⅝ « ⅜ The milk control legislation of other states was considered and investigated, but the Tennessee act was chosen as a model upon which to base a proposed solution for the problems of our own state.” In a search of the Tennessee Annotated Statutes (Official Ed.) I find a general chapter prohibiting agreements, etc. to lessen free competition (Title 69, Ch. 1), a “Fair Trade Law,” essentially granting the right to fix the resale prices in brand-name products (Ch. 2), a general “Unfair Sales Law,” (Ch. 3), applying to the sale of all merchandise at “less than cost,” by retailers or wholesalers, an “Unfair Cigarette Sales Law” (Ch. 4), a new Chapter (Ch. 6), concerning “Unlawful Trade Practices” in the sale of “Household Goods,” and the “Milk and Milk Products” law appearing as Ch. 3 of Title 52 entitled “Food, Drugs and Cosmetics.” That chapter was first enacted as a health and sanitation measure in 1939, and thereafter amended to and including 1961 to its present regulatory form. This conglomeration of special and general legislation only illustrates again the confusion and relative unfairness of special legislation. The Tennessee constitutional provisions providing for “General Laws” (Art. 11, § 8) are much less restrictive than ours.
In my opinion our entire act (now §§ 416.41CM-16.560) is invalid as special legislation in contravention of Article III, § 40 (30) Mo.Constitution, 1945. I think that many of plaintiff’s attacks on the act are highly technical and of no real materiality. I do have much doubt of the validity of the requirement as to sales “for less than cost,” as applied to any one individual item sold jointly by a processor of many items. The tenuous nature of this requirement is shown by the recitals of evidence in the majority opinion; it is also shown by the explanations attempted both by counsel and in the majority opinion to the effect that the term means only “average” cost or “approximate cost” or cost “reasonably construed.” These expressions are perhaps as ambiguous as the original term, and none of the various explanations seems wholly satisfactory. I do not rest my dissent on that ground, however.
I would modify the judgment by specifying therein that the act as a whole is unconstitutional as in conflict with Article III, § 40 (30) of the Mo.Constitution, 1945, and as so modified, I would affirm the judgment.