(dissenting).
At the outset, I find it odd that our legislature may enact price-fixing laws for milk, haircuts, all commodities and branded goods without violating constitutionally the right of freedom of contract of those businesses and trades but, when dealing with the price-fixing of intoxicating liquor, a noxious substance which may be legislatively classified as contraband, the police power becomes impotent and the limited privilege the lawmaker accords to those who seek to distribute intoxicants is somehow *179transformed into a basic right of property which cannot be restricted without violating due process. Yet, that is the unseemly posture of our jurisprudence since our 1949 decision in Schwegmann Bros. v. Louisiana Board of Alcoholic Beverage Control, 216 La. 148, 43 So.2d 248, 14 A.L.R.2d 680 and, albeit the Court had the opportunity in this case to remedy the defect, the majority has preferred to stand fast in perpetuation of the paradox. Indeed, the majority on this rehearing feebly (in my estimation) attempts to justify its ratification of the 1949 decision by asserting that all other precedents approving price-fixing measures had substantial relation to the public good, whereas, here, it states “ * * * we observe no decisive change in the economics or business climate of the liquor industry since our former decision” without even pausing to take cognizance of the fact that, as the statute must be presumed constitutional, the plaintiffs had the burden of proving that there had been no change in the economic condition of the liquor industry after 1948 and had singularly failed to offer a scintilla of evidence to show that such is the case. This is the same fundamental error committed in the 1949 decision where, as I shall hereinafter attempt to demonstrate, the Court by assertion of its own deduction and without any evidence before it on which to base such deduction, simply makes the declaration that the legislation is without public purpose. These conclusions invade the domain of the legislature, and particularly so-in considering the constitutionality of minimum price-fixing statutes, since it is manifest that a more effective way of preventing price wars and unfair competition than by the device of mandatory mark-ups over' cost has not yet been formulated. In truth,, this is the primary reason for minimum price-fixing legislation.
In view of the fact that the majority, on rehearing, substantially sustains the main contention of plaintiffs’ counsel, I will hereinafter discuss all the arguments counsel expound in an endeavor to show that they are not well taken.
A rehearing was granted in this case to consider plaintiffs’ claim that we erred, for three reasons specified in the application, in sustaining the constitutionality of Act 290 of 1964.
Initially, it is declared that our original opinion is in clear conflict with the Court’s prior ruling in Schwegmann Bros. v. Louisiana Board of Alcoholic Beverage Control, 216 La. 148, 43 So.2d 248, 14 A.L.R.2d 680. It is argued that, whereas it was found that the markup provisions of the 1964 Act vary in great degree from the assailed sections of the 1948 Act, there is no substantial difference between the statutes for both are simply minimum price-fixing laws and, therefore, the Court should follow our 1949 decision and hold the instant statute violative of due process.
*181It is unnecessary to re-examine the differences found in our original opinion upon which we based the view that the statutes were not the same. For conceding, for purposes of discussion, that the two statutes (having as their principal objects 'the establishment of a minimum price for the sale of intoxicating liquors) are substantially the same, it does not necessarily follow that the 1964 statute must be held unconstitutional because the 1948 statute was found invalid. The decision in the first case did not have the effect of tying the hands of the Legislature or restraining it from adopting price-fixing regulations for the sale of intoxicating liquors at any time that that branch of government found it essential to the general and economic welfare of this State so to do.
On the contrary, the many authorities cited and quoted from approvingly in our original opinion clearly exhibit that the legislative branch of government, being vested with plenary police power to prohibit the sale and distribution of intoxieating liquors, was clothed with the lesser power of regulation and was constitutionally free to enact any such measure that it, in its discretion, felt would inure to the general welfare.1 The 1964 legislation is not in the least dependent for its validity on our 1949 decision because (as we were careful to point out in our original opinion) it must be assumed that the Legislature was well aware of the 1949 holding and found that, notwithstanding it, there were conditions obtaining in the wholesale and retail liquor business in 1964 detrimental to the economy and the general welfare which required regulation by price-fixing— a condition which this Court declared did not exist in 1948. Indeed, the 1964 statute must be presumed to be constitutional,2 despite the 1949 decision, and the burden of showing that there is no rational relation between minimum price-fixing in the industry today and the general economy and welfare of the State, rested upon plaintiffs.3 “ ‘The proper application of the (police) power cannot be measured by past *183precedents — the test is, of course, present day conditions.’ ” See Louisiana Wholesale Distributors Assn. v. Rosenzweig, 214 La. 1, 11, 36 So.2d 403, 406, quoting approvingly from Wholesale Tobacco Dealers Bureau of Southern California v. National Candy & Tobacco Co., 11 Cal.2d 634, 82 P.2d 3, 9, 118 A.L.R. 485.
Plaintiffs have not attempted to shoulder the burden of establishing the unreasonable ness of the legislation. Instead, they have rested their case entirely on the 1949 decision of this Court. This is insufficient to sanction a holding that the 1964 Act is invalid for the presumption of constitutionality of a statute enacted under the police power is a real presumption;4 it is not just a legal principle to be casually stated and promptly disregarded or discarded in application. The many authorities cited in our original opinion from the Supreme Court of the United States and this Court exemplify this rule. They declare that, whenever the Legislature, acting under its police power, has enacted regulations affecting the sale of commodities, it is not •within the province of the judiciary to strike down such laws as unwise;5 the Court’s only inquiry under due process or equal protection is whether the measures are either arbitrary or discriminatory and, giving a realistic vitality to the presumption of constitutionality, the authorities hold that, if any state of facts can be imagined from which a conclusion may be drawn that there is a reasonable relation between the measure and the public good or economic condition of the business sought to be regulated, the Court is without authority to invalidate the legislation.6
*185Apart from this, however, if it be assumed that the economic conditions in the liquor distribution business in this State were the same in 1948 as they are today— that is, that there was a considerable disparity in prices because of the method of business (purchase at wholesale and resale directly to the consumer) employed by the plaintiffs and other cut-rate establishments (it is shown in our original opinion that Schwegmann has had retail sales as high as $5,000,000 per year and Reynolds as high at $2,000,000) then our 1949 decision is incorrect and should not be followed. For, surely, when due consideration is given to the almost unlimited power of the Legislature to regulate the distribution of intoxicating liquor, it can hardly be said that it is unreasonable for it to provide minimum sale prices so that the small corner retailer is able to compete with the larger super-market and other cut-rate distributors, and thus reduce the possibility that the latter would eventually monopolize the package sale distribution of intoxicants in the State7 or that such price fixing regulation does not have a real relation to the economic and general welfare of the people.
Our 1949 decision that regulatory price-fixing for the distribution at wholesale and retail of intoxicating liquors appears to be in conflict with the rationale of our prior decisions in the Parker case, 190 La. 214, 182 So. 485, upholding the constitutionality of price-fixing of hair cuts under a regulatory law for the barber trade; Pepsodent Co. v. Krauss Co. Ltd., 200 La. 959, 9 So. 2d 303, price-fixing for the marketing of trademark or brand goods; the Rosenzweig case, 214 La. 1, 36 So.2d 403, providing for 6% markups over cost on the sale of all commodities and our later decision in the McCrory case, 237 La. 768, 112 So.2d 606, involving price-fixing for the sale of milk. *187Likewise, it appears that that decision stands practically alone in its holding that price-fixing legislation, when applied to sales of intoxicating liquors, has no real relation to the public interest.8 An examination of the holding (see 216 La. 148, 43 So.2d 248, 14 A.L.R.2d 680) will disclose that the Court, after recognizing the principle that an act of the Legislature is presumed to be legal and that the judiciary is without right to declare a law unconstitutional unless this is manifest, actually employed the presumption in reverse and placed the onus of proving reasonable relationship between the measure and the public welfare upon the defendant State agency. Under the facts adduced by the defendant Board in that case, it would have been an easy matter for the Court to have upheld the validity of the 1948 law, had real efficacy been given to the presumption of constitutionality, for, from those facts many situations could have been readily conceived from which it could have been concluded that there was a real and substantial relation between the liquor price-fixing regulation and the social, economic and general welfare.
Our 1949 ruling has been cited to courts of other jurisdictions on more than one occasion but has never been followed.9 And at least one court of last resort (see Dundalk Liquor Co. v. Tawes (1953) 201 Md. 58, 92 A.2d 560) and a constitutional law writer10 have noticed the failure of our decision to give force and effect to the presumption of constitutionality and to recog*189nize that, in absence of a clear showing that the act could not serve the end sought to be attained and could only cover ulterior objects of its proponents, it is the province of the Legislature to determine the necessity for the police measure and whether or not the means used to accomplish the object of the law is proper.
Next, plaintiffs’ counsel profess that our holding that price-fixing promotes temperance is not sound and they say that higher liquor prices do not tend to lessen the demands of the consumer. From this premise, it is concluded that the present law is simply a subsidy for the small liquor dealer.
The correctness of the assertion that higher prices for intoxicating liquor does not tend to promote temperance is, to say the least, debatable. For I think it manifest that any hike in price of liquor may act as a deterrent to its purchase and ultimate consumption to some degree. Here, again, in judging the reasonableness of the legislation the' Court should not consider the amount of temperance the mark-ups will produce for this, of course, relates to the wisdom of the means employed to promote temperance; may be a doubling or tripling of the minimum retail price would effect much less consumption but this is purely a matter of legislative discretion with which the courts are not concerned.
Furthermore, it seems obvious that, when counsel for plaintiffs speak of the public interest and argue the lack of effect of this legislation upon the social, moral and economic welfare, they are referring to that segment of the people who purchase intoxicating liquors for their own consumption. Evidently, counsel regard those members of the public who neither imbibe intoxicants nor those who are not purchasers of packaged liquors (which I daresay comprise an appreciable segment of our people) are not within the ambit of the “public” embraced by the statute and need no protection from regulatory laws. But those people do have an interest to serve and the Legislature, in the nature of things, has a right and duty to consider their well being — for it cannot be doubted that the excessive consumption of intoxicating liquor tends to adversely affect the moral, social and general welfare of the people at large.
Finally, plaintiffs complain that the Court failed to consider on first hearing the charge in their petitions that Act 290 of 1964 was violative of Article 3, Section 1 of the Constitution, as well as Article 1, Section 2 thereof and the Fourteenth Amendment to the United States Constitution, in that it unlawfully delegates rights and powers to producers to fix certain prices and define certain criminal conduct punishable under the provisions of the statute.
Plaintiffs are mistaken in their claim, as the original opinion did consider the contention of unlawful delegation of legisla*191tive power and found it to be without merit. It is true that the Court did not discuss the charge in detail but this was due to the fact that it was not briefed by plaintiffs’ counsel and only casually mentioned during the first argument.
At any rate, a careful examination of plaintiffs’ contention that the Legislature has delegated to the producer of the intoxicating liquor the power to fix the price, because the Act requires the wholesaler and retailer to add a minimum markup to the cost price they pay for the liquor, shows it to be patently untenable. The cost of liquor to the wholesaler or retailer results from a commutative contract of sale. The producer does not fix the price for those who are not parties to the contract, as was the case in Dr. G. H. Tichenor A. Co. v. Schwegmann Bros. G. S. Mkts., 231 La. 51, 90 So.2d 343 where we held that the Legislature had unconstitutionally delegated its power to fix prices to the producer when it attempted to bind subsequent purchasers of the commodity to conditions relating to the resale price contained in contracts of sale to which they were not a party. The other cases cited by plaintiffs on this point are likewise inapposite.
Furthermore, no delegation of power whatever is given to the manufacturer with relation to the markups; they have been fixed by the Legislature itself. The markups are a fixed percentage of the cost and apply to wholesalers and retailers respectively. The Legislature is not attempting to fix, as it had power so to do if it saw fit, the purchase price to be paid by the wholesaler or retailer to the producer; it only fixed the minimum markup that must be charged by the wholesaler and retailer above their cost. In essence, no legislative power is delegated to anyone.
In conclusion, however objectionable the act of the Legislature fixing a minimum sale price of intoxicating liquors may be to the purchaser or the seller, however great may be the disapproval of the act by a majority of the people, however unpopular the enforcement of the act may be, the fact remains that in regard to this act the Court’s only function is to determine whether it is constitutional and legal. I believe that the Court, on first hearing, properly concluded that the statute, dealing as it does with the distribution of a commodity over which the Legislature has the admitted plenary power to regulate and may even prohibit, was clearly within the scope of police power and did not violate any constitutional right vouchsafed to plaintiffs. It is not a judicial function to strike down a law because it is unpopular. If the provisions of the act are objectionable to the people of this State, their redress is to seek repeal by the Legislature, for repeal is a legislative and not a judicial function.
I respectfully dissent.
. Mugler v. State of Kansas, 123 U.S. 623, 8 S.Ct. 273, 31 L.Ed. 205; Crowley v. Christensen, 137 U.S. 86, 11 S.Ct. 13, 34 L.Ed. 620; Ziffrin, Inc. v. Reeves, 308 U.S. 132, 60 S.Ct. 163, 84 L.Ed. 128; Hostetter v. Idlewild Bon Voyage Liquor Corp., 377 U.S. 324, 84 S.Ct. 1293, 12 L.Ed.2d 350, 30 Am.Jur. Intoxicating Liquors, See. 23, p. 539.
. Police Jury of Parish of St. Charles v. St. Charles Par. Waterworks Dist. No. 2, 243 La. 764, 146 So.2d 800; Schwegmann Brothers Giant Super Mkts. v. McCrory, 237 La. 768, 112 So.2d 606; State v. Rones, 223 La. 839, 67 So.2d 99; 16 Am. Jur. (2d) Constitutional Law, Sec. 137, p. 336.
.Kansas City Southern Railway Company v. Reily, 242 La. 235, 135 So.2d 915; Olivedell Planting Co. v. Town of Lake Providence, 217 La. 621, 47 So.2d 23; Interstate Oil Pipe Line Co. v. Guilbeau, 217 La. 160, 46 So.2d 113; State ex rel. Kemp v. City of Baton Rouge, 215 La. 315, 40 So.2d 477; United States v. Nebo Oil Co., D.C., 90 F.Supp. 73, affirmed 5 Cir., 190 F.2d 1003; 16 C.J.S. Constitutional Law § 99, p. 407.
. 16 Am.Jur. (2d) Constitutional Law Section 142, p. 342: “As to police measures, it must be presumed that the legislature has carefully investigated and determined that the interests of the public require such legislation, for the courts are reluctant to attribute a want of good faith in the exercise of the power.” Citing Durand v. Dyson, 271 Ill. 382, 111 N.E. 143; Stettler v. O’Hara, 69 Or. 519, 139 P. 743, L.R.A.1917C, 944, affd. 243 U.S. 629, 37 S.Ct. 475, 61 L.Ed. 937 (a common belief may be acted upon by the legislature in the exercise of the police power without proof of its existence); and Masonic Cemetery Asso. v. Gamage (CA9) 38 F.2d 950, 71 A.L.R. 1027, cert. den. 282 U.S. 852, 51 S.Ct. 30, 75 L.Ed. 755.
. Nebbia v. People of State of New York, 291 U.S. 502, 54 S.Ct. 505, 78 L.Ed. 940, 89 A.L.R. 1469; Northern Securities Co. v. United States, 193 U.S. 197, 24 S.Ct. 436, 48 L.Ed. 679; Louisiana Wholesale Distributors Ass’n v. Rosenzweig, 214 La. 1, 36 So.2d 403; 16 Am.Jur. (2d) See. 163, p. 371; Black on Constitutional Law, 4th Ed. p. 426.
. 16 Am.Jur. (2d)- Constitutional Law, Section 143, p. 343 : Black on Constitutional Law, 4th Ed. p. 424 (“ * * * a statute attributable to the police power must be sustained if any state of facts can reasonably be presumed, or even conceived, which would justify it.”); City of Sheveport v. Cunningham, 190 La. 481, 182 So. 649; Alabama State Federation of Labor v. McAdory, 325 U.S. 450, 65 S.Ct. 1384, 89 L.Ed. 1725; Rast v. Van Deman & Lewis Co., 240 U.S. 342, 36 S.Ct. 370, 374, 60 L.Ed. 679, L.R.A.1917A, 421, Ann.Cas.1917B, 455 “(It is established that a distinction in legislation is not ar*185bitrary, if any state of facts reasonably can be conceived that would sustain it, and tlie existence of that state of facts at the time the law was enacted must be assumed.”)
Note that in the following cases price-fixing statutes enacted by the Legislature have been upheld by this Court: Board of Barber Examiners of Louisiana v. Parker (Act 48 of 1936, R.S. 37:411 et seq.) 190 La. 214, 182 So. 485; Pepsodent Co. v. Krauss Co. Ltd., (Fair Trade Act, Act 13 of 1936, R.S. 51:391 et seq.) 200 La. 959, 9 So.2d 303; Louisiana Wholesale Distributors Ass’n v. Rosenzweig (Unfair Sales Act, Act 338 of 1940, as amended, R.S. 51:421 et seq.) 214 La. 1, 36 So.2d 403 and Schwegmann Bros. Giant Super Mkts. v. McCrory, (Orderly Milk Marketing Act, Act 193 of 1958, R.S. 40:940.1 et seq.) 237 La. 768, 112 So.2d 606.
. In Schwegmann Bros. Giant Super Mkts. v. McCrory, 237 La. 768, 112 So.2d 606, this Court held the provisions of Act 193 of 1958 (Orderly Milk Marketing Act) constitutional, relying upon Louisiana Wholesale Distributors Ass’n v. Rosenzweig, supra, in which it is stated : “[I]n adopting this state’s Unfair Sales Act for the protection of our economic structure and to prevent the creation or perpetuation of monopolies, the legislature was acting well within its police power.” 214 La. at page 14, 36 So.2d at page 407.
. Arkansas—Gipson v. Morley, 217 Ark., 560, 233 S.W.2d 79; Connecticut—Schwartz v. Kelly, 140 Conn. 176, 99 A.2d 99, app. dismissed 346 U.S. 891, 74 S.Ct. 227, 98 L.Ed. 394; Beckanstin v. Liquor Control Comm., 140 Conn. 185, 99 A.2d 119; Kentucky—Reeves v. Simons, 289 Ky. 792, 160 S.W.2d 149; Massachusetts—Supreme Malt Products Co. v. Alcoholic Beverages Control Comm., 334 Mass. 59, 133 N.E.2d 775; Maryland—Dundalk Liquor Co. v. Tawes, 201 Md. 5S, 92 A.2d 560; New Jersey—Butler Oak Tavern v. Division of Alcoholic Bev. Con., 20 N.J. 373, 120 A.2d 24; Gaine v. Burnett, 122 N.J.L. 39, 4 A.2d 37; Ohio—Pompei Winery Inc. v. Board of Liquor Control, 167 Ohio St. 61, 146 N.E.2d 430; Blackman v. Board of Liquor Control, 95 Ohio App. 177, 113 N.E.2d 893, app. dismissed 158 Ohio St. 368, 109 N.E.2d 475 ; California—Allied Properties v. Dept. of Alcoholic Beverage Control, 53 Cal.2d 141, 346 P.2d 737. It was held iu Dave’s Market Inc. v. Dept. of Alcoholic Bev. Control, 222 Cal.App.2d 671, 35 Cal.Rptr. 348 that a statute requiring intoxicants to be sold at fair trade prices was within the police power and not invalid under due process provision nor as unlawful delegation of price-regulating powers to private persons. Rhode Island—Nocera Bros. Liquor Mart, Inc. v. Liquor Control Hearing Board, 81 R.I. 186, 100 A.2d 652.
. See Dundalk Liquor Co. v. Tawes (1953) 201 Md. 58, 92 A.2d 560; Blackman v. Board of Liquor Control (1952) 95 Ohio App. 177, 113 N.E.2d 893, App. dismissed 158 Ohio St. 368, 109 N.E.2d 475; Allied Properties v. Board of Equalization (Cal.App.1959) 338 P.2d 1013, affirmed 53 Cal.2d 141, 346 P.2d 737.
. See Comment by the late Charles A. Reynard, Associate Professor of Law, Louisiana State University, in Vol. 11, Louisiana Law Review, 197-203.