(dissenting).
Initially, I am compelled to take issue with the conclusion of the majority herein that the provisions of Act 290 of 1964 are so materially different from those of Act 360 of 1948 that our decision in *159Schwegmann Brothers v. Louisiana Board of Alcoholic Beverage Control, 216 La. 148, 43 So.2d 248, 14 A.L.R.2d 680, is not controlling here. In reaching such conclusion the majority refer to Sections 24 and 26 of the 1948 statute and seem to suggest that somehow the requirements relative to posting and listing prices with the Board made that act more of a price setting act, rather than a mandatory minimum mark-up statute such as the one involved here, thus rendering inapplicable the initial Schwegmann decision.
In my opinion the 1948 act was nothing more than a mandatory minimum mark-up law — in every essential particular the same as the 1964 act — and Sections 24 and 26 thereof (relied on by the majority to distinguish the statutes) contained language designed merely to facilitate the enforcement of the mark-up provisions.
Throughout the opinion in the original Schwegmann case the 1948 act was treated (and its validity determined) on the basis of its being only a minimum mark-up statute; in no less than four places therein the statute as a whole, and Sections 24 and 26 in particular, are referred to as providing for mandatory minimum mark-ups; and it was pointed out that the attack made on the statute was that mandatory minimum mark-ups, under the circumstances existing at that time, violated due process of law.
Nowhere in the opinion therein, or in the briefs of counsel, was it suggested that the matter of the price posting and the listing provisions was ever at issue. To the contrary, throughout its brief the defendant, Alcoholic Beverage Control Board, reiterated time and time again that the 1948 act, including Sections 24 and 26, was merely a minimum mark-up law. [Thus, to point out but two instances, the Board asserted in its brief: “It is thus apparent that the Statute does not, by the widest stretch of imagination, fix the prices at which liquor shall be sold in Louisiana. * * * All this statute has done is to require a minimum wholesale and retail mark-up by the wholesaler and retailer, over their cost. * * * Act 360 of 1948 is not a price-fixing statute at all, Section 24 providing merely a regulatory mark-up for dealers, irrespective of price.”]
Furthermore, with all due respect to the majority I cannot agree with the finding of fact relative to conditions in the industry prior to the enactment of the 1964 statute or that the situation differed materially from that which had existed prior to the enactment of the 1948 act as shown in the original Schwegmann opinion. At page 802 of the majority opinion herein it is said: “The evidence of record in the instant case discloses that prior to the passage of Act 290 of 1964 (sixteen years after the Act of 1948), some deals, discounts, and gratuities took place in some *161portions of the liquor trade; there were occasional price wars and some ruinous competition; * * *.”
Prior to the passage of the 1948 act, the same “deals” (lower prices on bulk purchases), discounts and gratuities were operative in the trade, and, as we pointed out in the opinion relative to that statute, there was also some evidence of isolated cases of price wars. The present record shows only one price war, that in the Shreveport area. With regard to the existence of “ruinous competition”, the evidence, as I appreciate it, forces me to conclude that it was not “ruinous” but merely competitive and to no greater extent than prior to 1948. In this connection it is pertinent to note that the number of retail liquor outlets, rather than diminishing as would be the case if the competition were ruinous, increased steadily from the 1930’s to the 1960’s. All of the retail dealers who testified for the defendant (most of whom had been in business for many years) almost without exception admitted that they had prospered. [For instance, Mr. Anthony Cardaro and his partner started in business in Shreveport some thirteen years prior to the trial with approximately $4,500. About seven years later they incorporated with a capitalization of $70,000, meanwhile having acquired out of their profits the building, worth $25,000, in which they operated; and each of them was drawing $800 per month from the business plus $200 for rent for the building.]
But even conceding arguendo the above' facts as found by the majority to be correct, there is no evidence whatever to show that the results intended to be reached by the statute would be to the economic interest and welfare of the community and to its people as a whole. In fact, the majority opinion suggests that the statute was enacted for the benefit of the liquor business generally and the small liquor dealers particularly — a benefit to be rendered at the expense of the consumers who are compelled to pay higher prices. Thus, it is said therein “We are compelled to conclude that the factors which existed in the liquor trade prior to the enactment of Act 290 of 1964 were detrimental to the economic welfare of the liquor traffic or business; price structure at both retail and wholesale levels was a primary source of trouble to a large number of dealers. It was imperative that the economic welfare of the liquor business be stabilized; such conditions as are herein evidenced may not have been prevalent in 1948, sixteen years before. We are constrained to conclude that the price structure adopted by Act 290 of 1964 is related to the economic welfare of the sale of alcoholic beverages and is reasonable in its application.”
There is no suggestion that the mentioned factors and conditions were operating to the economic disadvantage of . the *163citizens as a whole. As a consequence the result reached by the majority — permitting interference by the state with the operation of a lawful business merely for the benefit of one kind of business or the special interest involved therein — completely contravenes our observation made in City of Alexandria v. Hall, 171 La. 595, 131 So. 722, as approved in Schwegmann Brothers v. Louisiana Board of Alcoholic Beverage Control, supra, which was: “‘To justify the state in thus interposing its authority in behalf of the public, it must appear, first, that the interests of the public .generally, as distinguished from those of a particular class, require such interference; and, second, that the means are reasonably necessary for the accomplishment of the purpose, and not unduly oppressive upon individuals. The Legislature may not, under the guise of protecting the public interests, arbitrarily interfere with private business, or impose unusual and unnecessary restrictions upon lawful occupations.’ ”
With respect to whether or not the 1964 statute in its application tended to promote temperance I can find, after scrutinizing the record very carefully, no evidence that consumption declined generally in the period following the effective date of the act. True, two of the large retail distributors who are plaintiffs herein indicated that their sales had dropped. However, it is clear from their testimony that this was not because the consumers were buying less but, rather, that they were buying in stores more conveniently located after the price advantage at the larger store was no longer available. Moreover, the third plaintiff and all of the small retailers from throughout the state who were called as witnesses by the defendant testified that their volume had increased materially and two of them volunteered that they were now doing a “case business” which they had not done before.
From these facts it is obvious that the 1964 statute does not, any more than did the 1948 act, tend in any perceptible degree toward its asserted purpose, namely, the regulation and control of liquor so that it may not cause injury to the economic, social and moral well being of the people of the state generally. And in this regard it should be observed that the factors referred to by us in the original Schwegmann decision, as showing that the 1948 act did not have such effect, are equally applicable to the statute presently rtnder consideration. (Incidentally, neither statute was designed to control prices of beer or bar drinks nor to bring within its orbit the prices charged by the manufacturer or distiller.)
If this 1964 statute were actually one to control, regulate or even prohibit the sale and distribution of intoxicating liquors, this in the interest and general welfare of all of the people of Louisiana, I would then be of the opinion that it represents a proper *165exercise of the state’s police power and, accordingly, I would gladly vote to maintain its constitutionality. But it is not such a statute. As pointed out above it obviously evidences a quarrel or fight respecting price fixing among liquor interests exclusively — one that produces a result contrary to the principles of the American free enterprise system — and I cannot in good conscience advocate or support the sustaining of its validity.
I respectfully dissent.