dissenting:
I emphatically dissent from the judgment of the majority which, contrary to the clearly expressed view of four judges of the Court in its four to one decision, Judge Given dissenting, in General Electric Company v. A. Dandy Appliance Company, Inc., 143 W. Va. 491, 103 S.E. 2d 310, sustains the constitutional validity of the Fair Trade Act, as contained in Chapter 123, Acts of the Legislature, 1937, Regular Session, notwithstanding the manifest intention of the majority in that case to hold and, as I believe, did hold, as stated in Point 1 of the syllabus, that the act was “unconstitutional and void as an arbitrary and unreasonable exercise of the police power because of having no substantial relation to the public health, safety or general welfare.” In my judgment the foregoing quotation from the syllabus point in the Dandy case constitutes the actual holding and decision of this Court on the question of the constitutionality of the entire Fair Trade Act.
Though there may be a difference of opinion among the members of the bench and bar of this State as to whether a point stated in the syllabus prevails over *932statements and conclnsions in the opinion of the Court and constitutes the holding of the Court in any given case, it is my considered view that though this Court has held the provision of Article VIII, Section 5, that “it shall be the duty of the court to prepare a syllabus of the points adjudicated in each case concurred in by three of the judges thereof, which shall be prefixed to the published report of the case.” to be directory, State v. Smith, 119 W. Va. 347, 193 S.E. 573; Henshaw v. Globe & Rutgers Fire Insurance Company, 112 W. Va. 556, 166 S.E. 15; Horner v. Amick, 64 W. Va. 172, 61 S.E. 40; and though, in consequence, this Court may refrain from preparing a syllabus of any point adjudicated, yet if the Court does in fact prepare such syllabus of a point adjudicated, as it did in the Dandy case, such syllabus should be and, based on my understanding as a practitioner and a judge for more than a half century, is generally considered by most of the members of the bench and bar of this State, as it is so considered by me, to prevail over statements in the opinion, whether explanatory or contradictory, and to constitute the actual decision in the case. In this position I am supported by the decision of this Court in Bank v. Burdette, Judge, 61 W. Va. 636, 57 S.E. 53. The opinion in that case, prepared by Judge Brannon, contains this statement: “Now our Constitution requires the court to make the syllabus, and it is that which is the real decision over the opinion.” Though the cases cited in the majority opinion and other decisions of this Court say that the syllabus in the case should be read in the light of the opinion, it is clear to me that when the syllabus in the Dandy case is read in the light of the majority opinion it constitutes the holding of that case that the Fair Trade Act was unconstitutional in its entirety. In short it is my considered opinion, despite the labored effort of the majority to limit the decision to the unconstitutionality of Section 6 of the Fair Trade Act relating to non-signers of contracts, that the four to one decision of this Court in the Dandy case actually held the Fair *933Trade Act in question, as expressed in point 1 of the syllabus, unconstitutional and void in its entirety as an arbitrary and unreasonable exercise of the police power because it bore no substantial relation to the public health, morals, safety or general welfare of this State. That is what point 1 of the syllabus holds and that in my judgment is the holding of the majority of this Court in that case which was composed of the writer of this dissent, Judge Browning who is the writer of the contrary majority opinion in.the instant case, and Judge Donley and Judge Ducker who was the writer of the majority opinion in the Bandy case. The remaining judge, Judge Given, who dissented, as his dissent clearly shows, based his dissent on the action of the majority in holding the Fair Trade Act unconstitutional in its entirety. This was contrary to Judge Given’s view that it, as well as most of such acts in the various states, was a constitutional exercise of the police power of the State; and for that reason he filed his dissent.
Regardless of the lengthy discussion and conflicting views of counsel as expressed in their written briefs and oral arguments as to the extent of the holding in the Bandy case, no one can read the opinion of the majority or the dissenting opinion in the Bandy case with care, intelligence and discrimination without being convinced that all the judges who participated in that case then intended and believed that the decision of the majority was that the Fair Trade Act in its entirety, not merely its Section 6, was unconstitutional and void as an arbitrary and unreasonable exercise of the police power of the State.
Though the majority opinion in the instant case contains many quoted statements from the majority opinion in the Bandy case to sustain its erroneous and labored view that the decision in that case was limited to the unconstitutionality of Section 6 of the Fair Trade Act, the majority opinion omits the important and controlling statements in the majority opinion in *934the Dandy case which show beyond question that the majority intended to hold, and actually did hold, the Fair Trade Act unconstitutional and void in its entirety, and in consequence the holding in that case was a binding decision of this Court to that effect which can not be distinguished from the present holding of the majority and which, not having been overruled, is still of binding and controlling force and effect and should have been followed and applied by the majority of this Court in this case.
The following quotations from the majority opinion in the Dandy case, which are, of course, omitted from the majority opinion in this case, clearly and unequivocally show the scope of the holding and the reasoning of the four to one decision in the Dandy case which in my opinion are controlling and should have been followed and adhered to in the decision in this case. The statement that the majority of this Court in the Dandy case intended to hold and did hold the Fair Trade Act unconstitutional in its entirety is not merely my language; it is the language of the majority opinion in that case as will appear from the italicized portions of the following quotations:
“The first and second questions certified may well be considered together because it must first be determined whether the Fair Trade Act is a proper exercise of the police power of the state, for if it is not, then it necessarily follows that it is not due process as to non-signers, but if the Act is within the police power of the state, the question of whether it violates the due process provision of the West Virginia Constitution may still require consideration and determination.
“Although great reliance is placed by the plaintiff upon the case of Old Dearborn Distributing Co. v. Seagram Distillers Corp., 299 U.S. 183, 57 S. Ct. 139, 81 L. Ed. 109, decided in 1936, and which involved a similar Fair Trade statute enacted in Illinois, and that case remains as authority for the validity of the West *935Yirginia Act in so far as its validity nnder tlie due process clause of the Federal Constitution is concerned, such authority is not conclusive upon this Court in determining whether such an Act is within the police power of this State or is violative of the due process of law provision of the West Yirginia Constitution, even though the provisions of both Federal and State Constitutions are practically identical in language. However, our conclusion that the Act in question is not a proper exercise of the police power of this state loill eliminate any necessity for holding the Act valid because it may not violate the Federal Constitution. We are of the opinion that the determination of the extent and limitations of the police power of this state remains a prerogative of the sovereignty of this state and any question of constitutionality thereof under the Constitution of West Yirginia is determinable by this Court. The converse proposition which was involved in the Old Dearborn Distributing Company case is not necessarily applicable to the case here before us for decision.
‘ ‘ Since the first enactment of these Fair Trade Laws there have been decisions in many of the states determining their validity or invalidity, and the earlier decisions were mostly favorable to their validity, but as of the present time it appears that the decisions are more or less equally divided. With such respectable authority in favor of the positions of both plaintiff and defendant, it would not be too difficult to substantiate either position, but here it becomes necessary to define the police power of this state so far as the same is or is not applicable here, and decide the issue in this case accordingly.
“Two States, namely, New Mexico and Ohio, have by their very recent decisions declared Fair Trade Acts an improper exercise of the police power of the state, and accordingly, violative of the due process law provisions of their constitutions. Skaggs Drug Center, a Corporation v. General Electric Company, a *936Corporation, 315 P. 2d 967; Union Carbide & Carbon Corp. v. Bargain Fair, Inc., et al. 167 O.S. 182, 147 N.E. 2d 481.
“The case of Skaggs Drug Center v. General Electric et al., supra, contains a quite complete review of many of the cases on this subject, and in addition thereto, the court has cited the extensive annotations contained in 125 A.L.R. 1335 and 19 A.L.R. 2d 1139, to which cases and annotations we now herein refer, in order to eliminate the necessity of citing and discussing in detail the opinions and decisions on this subject. Such a discussion will only result in a repetition of the authorities without affording additional reason or information. However, because the following pertinent paragraph quoted in the Skaggs case is so expressive of our reasoning, we insert the same with approval here, as follows:
“ ‘The Supreme Court of Georgia in Cox v. General Electric Company, supra, in commenting upon the decisions of other states as to the fair trade acts, made the following very pertinent statement [211 Ga. 286, 85 S.E. 2d 519] :
“ ‘It is earnestly argued that a number of the supreme courts have upheld the validity of their Pair Trade Acts, which were almost, if not entirely, identical with the Georgia statute under consideration, and our attention is called to a number of decisions by the Supreme Court of the United States. We are aware of the fact that a number of the State Supreme Courts have upheld these acts, a number have not passed upon them, and others have held them invalid. We are also familiar with the conflicting decisions on this question by the Supreme Court of the United States, as pointed out in the special concurring opinion of Chief Justice Duckworth in Harris v. Duncan, supra [208 Ga. 561, 67 S.E. 2d 692]. We are here, however, dealing with the statutes of this State and with the question of whether or not they violate the Constitution *937of the State of Georgia. What the coarts of other States have decided is not controlling, and this is one of the few powers left to States to decide for themselves regardless of what the Supreme Court of the United States may nor may not have decided. We are also familiar with the modern trend to allow the government to encroach more and more upon the individual liberties and freedoms. So far as we are concerned, we will not strike down the Constitution of our State for this purpose; neither will we follow the crowd. The scheme described in the petition now under consideration permits a manufacturer, under the guise of protecting his property rights in a trade name and trademark, to control the price of his product down through the channels of trade into the hands of the ultimate consumer, and into the hands of persons with whom he has no contractual relation whatever. This statute clearly violates the provisions of the due process clause of the Constitution of the State of Georgia. ’
“And further, at page 974, the Court concluded:
“ ‘In view of the above, it will be determined that §2, Chapter 44 of the Laws of 1937 (§49-2-2, N.M.S.A. 1953) is unconstitutional and void as an arbitrary and unreasonable exercise of the police power without any substantial relation to the public health, safety, or general welfare insofar as it concerns persons who are not parties to contracts provided for in §1, Chapter 44, Laws of 1937 (§49-2-1, N.M.S.A. 1953).’
“In Union Carbide & Carbon Corp. v. Bargain Fair, Inc., supra, the Court, in holding that the Fair Trade Act was an unauthorized exercise of the police power and contravened the ‘due process’ provision of the Ohio Bill of Rights, said:
“ ‘In recent years and in the light of present-day conditions, courts have become more critical of the fair trade acts and have invalidated parts of them with increasing frequency.
*938“ ‘Basically, those cases approving the acts in toto proceeded on the theory that a producer of a trademarked product, who has expended money and effort in establishing it on the market at a specified selling price, ought not to he subjected to the injury which cut-rate sales would entail; that the ownership of a trademark and goodwill is a property right which the law should protect and is assertable against all who sell the producer’s products; and that price cutting is not only damaging to the goodwill and business of the producer but has a deleterious effect on the public as well. Also brought into the equation is the economic philosophy of the fair trade acts, which it is said bear a real and substantial relationship to the public welfare, and the proposition that their enactment is a matter for legislative determination in the exercise of the police power, with which the courts should not interfere.
“ ‘On the other hand, the position taken by other courts is that the real effect of the fair trade acts is anticompetitive price fixing rather than the protection of the goodwill of trademarked products. Goodwill should be measured by the price the goods can command in a competitive market and not by allowing the manufacturer to sell at a pegged retail price which he himself selects. In normal times, the inflexible price arrangements which the acts sanction are opposed to our traditional concepts of free competition for the benefit of the consuming public, and the clause binding those who do not enter into a price-fixing contract with the manufacturer offends such concepts. Hence,- the nonsigner clause interferes with the constitutional right of the owner of property to dispose of it as he pleases and represents the exercise of the police power for a private as opposed to a public purpose.’
“While much is said of the rights of owners of trademarks and brands to have their property rights protected, and certainly such rights should be protect*939ed to siicli extent as may be compatible with, the constitutional rights of the public, we do not think that the protection which the Act in question purports to give is reasonably related to the public morals, health or welfare, and, as this Conrt has recently in the case of State v. Memorial Gardens Development Corp., 143 W. Va. 182, 101 S.E. 2d 425, said:
“ ‘All legislation under the police power must be within the constitutional inhibitions. Milkint v. McNeeley, 113 W. Va. 804, 169, S.E. 790; Eubank v. City of Richmond, 226 U.S. 137, 33 S. Ct. 76, 57 L. Ed. 156.’
“Though it is of great advantage to the plaintiff to have additional protection in the provision making it unlawful to sell trademark or brand articles below the prices fixed by the manufacturer, nevertheless the manufacturer or distributor is not deprived of his rights to make reasonable contracts with others in regard to the price at which such merchandise shall be sold, and he can protect himself by suits for enforcement or damages. To extend such manufacturer’s or distributor’s rights to the public generally is but another improper exercise of the police power and not in our opinion warranted, and being such is void, as in violation of Section 10 of Article III of the Constitution of West Virginia, which provides that:
“ ‘No person shall be deprived of life, liberty, or property, without due process of law, and the judgment of his peers.’
“So from the foregoing we are of the opinion, and so hold, that the so-called ‘Fair Trade Act’, Chapter 123, Acts of the Legislature, 1937, Regular Session, Chapter 47, Article 11, Section 6 of the Code of West Virginia, as amended, is not a proper exercise of the police power of the state and is unconstitutional, and the answer to the first certified question is in the negative and the answer to the second certified question is in the affirmative.
*940< < # * *
‘‘For the reasons stated, we are of the opinion to, and so hold, that the so-called ‘Fair Trade Act’, Chapter 123, Acts of the Legislature, 1937, Regular Session, is not a proper exercise of the police power and is unconstitutional and void as violating the due process of law provisions, and as not containing a title sufficiently expressing its purpose, as required by tbe Constitution of West Virginia.”
That Judge Given dissented from what he believed and considered was the erroneous holding of the majority that the Fair Trade Act was unconstitutional and void in its entirety clearly appears from this quotation from his dissenting opinion:
“My understanding of the majority opinion, as it relates to the constitutionality of the Fair Trade Act, is that the power of the Legislature in the passage of the Act in question was so arbitrarily exercised as to render the Act itself unconstitutional and, impliedly, at least, that the passage of a Fair Trade Act is within the legitimate reaches of the legislative branch of the State Government. I agree that such legislation is within the police power of the State, and that such power must not be arbitrarily or capriciously exercised. I can not believe that the power of the Legislature as to the Act here involved was arbitrarily exercised. ’ ’
To recapitulate, I would reverse the decision of the Circuit Court of Fayette County and dismiss the proceeding for the reason that the actual decision in the Dandy case correctly held the Fair Trade Act unconstitutional and void in its entirety and was not limited to the unconstitutionality of Section 6 of the Act as the majority erroneously holds in this case, and for the additional reason that regardless of the scope of the decision in the Dandy case, it can not be successfully contended that it was not the clearly expressed intention and the clearly expressed reasoning of four of the judges of this Court that the Fair Trade Act is *941unconstitutional and void in its entirety and that intent and reasoning, being sound and correct, should have been followed and adhered to in the decision of this case. In the light of the foregoing action of the majority in the Bandy case there is no excuse or justification for the action of the majority in misinterpreting the scope and effect of the decision in the Dandy case and, in the face of that decision, in holding the Act, except Section 6, to be constitutional as a valid exercise of the police power of this State. It is my considered judgment that the Act is unconstitutional in its entirety because, as the majority in the Dandy case declared, it bears no substantial relation to the public health, morals, safety or general welfare and for that reason it constitutes an arbitrary and unreasonable exercise of the police power. Instead the Act is designed to maintain the price fixed by the manufacturer of the articles involved, tends to create a monopoly, and necessarily removes such articles from or renders them less susceptible to competitive prices in the open market. In that respect the Act has nothing to do with the public health, morals, safety or general welfare and is manifestly not within the police power of the State any more than the efforts. of the local grocer or druggist to raise or lower the price of the merchandise in which he deals. Again I say that I would reverse the decision of the circuit court and dismiss the ease at the cost of the plaintiff.