Reynolds v. Louisiana Board of Alcoholic Beverage Control

REYNOLDS, J. Lawrence d/b/a Larry Katz&

v. ALCOHOLIC OF BOARD

LOUISIANA CONTROL. BEVERAGE Jr., MARTIN, Martin’s Y.

David d/b/a Wine Cellar OF ALCOHOLIC BOARD

LOUISIANA CONTROL. BEVERAGE BROTHERS GIANT

SCHWEGMANN MARKETS SUPER BOARD OF ALCOHOLIC

LOUISIANA BEVERAGE CONTROL. 47788, 47820,

Nos. 47821. 8, 1965.

Nov. Rouge, for George Bourgeois, Baton A. April 1, Rehearing On 1966. defendant-appellant. May 2, Rehearing Denied Further Sternfels, Risley Triche,

Triche C. & Napoleonvilie, for intervenors. Stone, Stone, Pigman Benjamin, & Saul Orleans, Pigman, Paul' O. H. New appellees.

HAMLIN, Justice. defendant, Alco- Board of Louisiana intervenors, Control, holic Lou- Liquor Association of Dealers Retail Pon- Inc., Signorelli, V. isiana, John John Manthey, saa, Hughes, (Alcide Ed James Ruiz, Mansueto, Horace Daigrepont, John 13Q Dessommes, day Harry Rogers, argument, Bill made Rene on the and one Smith, Sr., Bosio, Boesch, judgment Jr., Louis will be rendered herein. John France, Henry Caranek, Cres- Robert John Upon suits, filing plaintiffs of their pino, Musso, Signorelli, Frank Vincent ; granted temporary restraining were orders Rozas, Ricca, Rozas, Curry Dudley Gene suspensive ap- the defendant Board took Gardshene, Boyd Gammill, Paul John peals by application from the On orders. Cicero, Knippers, Motes, R. A. R. W. plaintiffs certiorari, for remedial writs of Cordaro, Allen, O’Keefe, Nick Tev John prohibition, mandamus, and the Court Bedmarski, Beam, appeal Tom Fred and Appeal, Circuit, First stated that tem- the VII, (Art. 10(2), La. to this Sec. Court porary restraining orders issued Const, 1921) judgments from expired trial court had under their own trial which decreed Act 290 court terms, and the matters were remanded unconstitutional; rules which made the the district proceedings. court for further absolute; permanent injunctions which for This applications Court denied for writs. ordered, per- adjudged, decreed that and plaintiffs’ The trial court then re- denied plain- injunctions manent issue favor of quest preliminary injunctions, for and tiffs, Larry Reynolds, Lawrence d/b/a J. proceeded matters to trial on the merits. Martin, Katz, Jr., Mar- & David Y. d/b/a judgments, supra, The instant ensued. Cellar, tin’s Broth- Wine and Appellant, Louisiana Board of Alcoholic Markets, Super against ers Giant and Control, (joined Retail defendant, Alcoholic Louisiana Board of Liquor Dealers Association of Louisiana Beverage Control, permanently enjoining, retailers, large and a number of service prohibiting en- restraining, and from mostly purpose single dealers who deal 1964; forcing dis- commodity principally one alcoholic bev- — petitions missed the filed of intervention erages higher generally adhere —and proceedings these at intervenors’ cost. markups dealers) than contends volume that the district court erred: Separate suits, but at- almost identical holding 1. In that Act 290 of 1964 tacking constitutionality of Act 290 unconstitutional; relief, injunctive praying 1964 and for an holding 2. In the act by plaintiffs were court. filed the trial police' unreasonable exercise of the They trial, sepa- were consolidated State; judgments rate but identical rendered were in each matter. cases were consoli- failing 3. In to find the law and problem the evidence that a exist- dated in this Court formal oral motion traffic so that control of industry, in the ed ‘may injury to eco- cause the solution furnished legislature nomic, well-being and moral social thereto, re- that a reasonable They, people in oth- State.’ prob- lationship exists between words, inappropriate er are -the to be solved and sought lem legitimate object it; achievement provided to solve means Accordingly, described statute. had holding plaintiffs provisions that such arc man- we hold unconstitutional; proved act ifestly within the con- unreasonable templation police power, of the state’s placing defendant burden 5. In on and, hence, in that are unconstitutional an proving the existence of process (cid:127)violate the due clauses of problem or condi- economic other constitutions. our state and federal Legislature to which moved the tion “ * * * we concerned here act, plus burden additional up only mandatory specific with mark adopted to justifying the means particular provisions statute, of a with cope problem or other respect to the which the enactment of condition. police power validly was not exercised. retailers, Appellees, submit volume ” * * * (Emphasis supplied.) provisions price-fixing this Court that the matter, judge In the trial the instant patently Act of are unconstitu- of stated: light tional in of this decision Court’s “ ** * Schwegmann Mr. Schwegmann in Brothers Louisiana filed a suit in 1949 that resulted who Control, 216 of Alcoholic Board being in Act held uncon- 360 of 1948 14 A.L.R.2d 680. Supreme in- our Court stitutional supra (1949), In the case require sought as that Act sofar this Court concluded: mark-ups the sale both fixed all of we conclude “From which retail of alcoholic bev- wholesale and * * * provisions very of 1948 given that the of Act 360 erages. I mandatory study mini- which relate to the line Act of careful line of ups (Sections l(s), 24 mum mark and Act 290 1964. For the life 1948 and tend, 26) degree any do not in a of meT can’t find essential differ- clear, particular mandatory pro- perceptible ac- ence toward the and visions, purpose except per- differences in complishment announced ** mark-ups statute, centages' *. namely regulation “ “ * * * ^ iji ^[*] Also, the two Acts being threshold rect our immediate attention to it. case. We, therefore, di- exactly the same so as pro- far The above sections of the 1948 Act re- provisions cedural and : concerned cited Supreme having passed Court o® “‘Cost’, l(s) Section invoice procedure, I way any don’t know plus freight cartage, the dealer get

I following can out of that deci- invoice, if not included in the with- of Schwegmann sion versus the Con- any any out deduction for discounts or ” * * * trol Board in 1949. kind, any plus taxes, concessions all but including sales and tax trial judge denied a motion for a emergency war tax the United trial alleged part that, new which “The per proof gallon, States of $3.00 Court was in recognizing error in not and April 1, became effective 1944.” taking judicial pol- notice of the official adopt Section 24. “That Board shall icy of the regu- State of Louisiana towards promulgate and regulations rules and lation of beverages; alcoholic the official prevent any practices unfair policy is promotion temperance; any ‘regulated sale beverages’ failing Court was in error in to hold following enforce the minimum that Act 290 purpose of 1964 had for its up mark every dealer over his promotion temperance, and did in cost: sales, fact reduce the volumes of and in “(a) The wholesaler’s turn, consumption beverages.” of alcoholic selling shall to a retailer stated, denying motion, judge “ cost, defined, plus his as herein * ** 15% considering I find in all of liquor; liquers on on cordial 20% phases these these cases Act 290 of specialties; spark- on 25% 1964 does language not contain to in- 'and still ling wines. promotion dicate the of moderation “(b) The retailer’s minimum sell- indulgence appetites being of natural ing price cost, shall his as herein purpose price regulation 33Y¡% on refined, ” plus liquor; * * * 45% did neither of 1948. cordials, ; on liquers specialties and question A determination of the of the sparkling and on and still wines. 50% similarity provisions vel non of the “Provided, pre-- that the rules shall mandatory Act which related to expose any scribe no that retailer shall markups (Sections l(s), and minimum beverages such sale show- for without ing 26), selling price easily 290 of at the in with Act 1964 stands thereof posted by distributed be the Board and be unlawful figures, and it shall read to dealers within State. all licensed any ask or receive to any retailer for change No in shall beverages, except become price for such other ef- price, thirty days filing until to said shall add that retailers fective after Pro- purchaser, all notice with the Board. collect from the and thereof vided, may that on each no discounts or rebates be due sales taxes any given or shall character amount be transaction. prices.” (Em- or received from list further, that where “Provided phasis supplied.) State, in wine bottles wholesaler ‘cost’, I, Purposes Definitions, his Title of Act shall be added to there supplies plus 360 of 1948 recited: cost of bottles 10% of said total. “WHEREAS, necessary it is deemed protection safety, for the wel- mandatory

“Provided, also, no fare, health, peace and morals of up required mark shall be when people in of the State that all traffic two wholesalers is between transaction beverages containing more alcoholic wholesale, two resale at or between per than vol- six centum alcohol retailers, and that the cost controlled, regulated be ume up the resale mark on police power the State be that the be same such transaction shall may so exerted that the said traffic original as that of the wholesaler cost fixed; injury economic, social cause to the retailer, as hereinbefore well-being people of and moral provided provisions of further that the ** State, apply sales at shall not to this section for ex- made in the State wholesale 19S6, “The Act 36 Alcoholic port beyond (Emphasis its borders.” Law,” presently as Control effective supplied.) amended, makes a statement 'identical many above; of this set forth sections 26. “As condition Section State, under are found LSA:R.S. product West’s sale of dealer’s Chapter Title 26. Act 290 of 1964amended every every manufacturer and whole- “by adding new Part of Title thereto a de- saler shall file with the Board thereof, designated Part VI prices, selling tailed list of their 26:219, through 26:211 R.S. contain R.S. changed supplemented provide for minimum time, require and to tener than once time to but not of beverages, prices on certain alcoholic every as the days, manner and enforce- provide for the administration may prescribe. shall Board Said lists provide penalties ment per thereof and to price. least ten cent of such cost for violations of said price Part.” Pertinent sec- The wholesaler’s list of shall wine tions recite: be in an amount not less his cost than price, plus eighteen at markup a of least Filing required of schedules

“§ per cent price. such of cost The whole- shall, Septem- “No wholesaler after price saler’s cost shall be his net actual 1, 1964, any ber sell or offer to sell price invoice cost shown du- beverages alcoholic until such whole- plicate board, invoice on with file saler shall have filed with the Louisiana ¿11 charges inclusive of bottling Board of Alcoholic Control charges paid other for the distilled writing a schedule in which shall con- spirits wines, taxes, plus plus or all tain, respect each item he transportation charges all calculated on sell, proposes to the exact brand or a minimum basis fifty not than of less name, capacity trade package, nature per cents provisions case. The of this contents, addition, proof. apply Section any shall not licensed such schedule shall show the respect wholesaler with to such distilled price at proposes which the wholesaler spirits and purchased wines as has been sell, price which shall be known as from another licensed wholesaler.” price, wholesaler’s list the minimum (Emphasis supplied.) price at which the cus- wholesaler’s quantities tomers sell shall at retail in price 213. Retailer’s list “§ case; of less than one and the minimum price The retailer’s list of distilled price at which the cus- wholesaler’s spirits shall be less than the retail- quantities tomers shall sell at retail price, plus, er’s cost where sales are more, one case or shall quantities case, made in less than one price. known as the retailer’s list markup a at twenty per least cent of provisions The of this Section shall not price, plus; cost retailer’s or where apply licensed wholesaler with are quantities sales made in one case respect spirits to such distilled more, markup per or at least ten purchased wines as has been from an- cent price. cost retailer’s (Emphasis other licensed wholesaler.” price retailer’s list of wines shall not be supplied.) plus, less than price, the retailer’s cost price 212. Wholesaler’s list “§ quantities where are sales made in The wholesaler’s distilled list case, markup than less one of at least spirits thirty shall not be in an per amount less cent retailer’s cost price, plus markup than price, his cost plus; or where sales made in spirits more, and wines a mark- C.All distilled quantities of one case by any per re- retailer or wholesaler up owned least fifteen cent of at Louisiana, September cost after price. The retailer’s cost tailer’s re- price, wholesaler list shall be sold shall be wholesaler’s the first prices not less than municipal parish gallon- tailer at excluding filed spirits price shown on schedule wines.” list age tax on distilled distributing dis- such supplied.) wholesaler (Emphasis September spirits tilled or wines after Amendment schedules “§ 1, 1964. may his Any amend wholesaler provisions Notwithstanding any the board on file with schedule Section, any this licensed wholesaler time, does not provided the amendment spirits may any wines distilled sell price list either wholesaler’s reduce purchased from another wholesaler price below list or the retailer’s price not less than the wholesale for provided in Sections prices minimum price selling wholesaler.” list amended All 212 and 213 hereof. supplied.) (Emphasis im- effective schedules shall become filed, except that mediately upon being mandatory Act 360 of 1948 contained in- schedule where an amended such up man- provisions. mark also contained alcoholic bever- cludes a new brand of 26, supra; datory provisions in posting Sec. whole- previously sold such age not the wholesaler were manufacturer and ef- shall not become thirty saler the schedule postings period bound days period thirty after fective for a days. pric- floor on Act 290 of 1964sets a (Em- it has been filed with the board.” ; price it under es sets a minimum phasis supplied.) posting sell; requires it dealers cannot no provides cer- that the wholesaler under price unlaw- 215. Sale below'list

“§ tain conditions amend his schedule at ful any re- time. Act 290 does not order the A. or offer No wholesaler shall sell beverages. prices exposed tailer show on any any beverages to sell alcoholic 24(b) Section of Act of 1948 ordered 360 any buy nor or of- retailer retailer shall exposed the retailer bev- to show on buy any beverages fer to from alcoholic provided erages and it that would unlaw- price any belove a wholesaler at a any any ful for retailer to 'ask or receive price. wholesaler’s list beverages. other B. sell or No retailer shall offer but, beverages Acts; do sell alcoholic at a Similarities exist the two price. price control, belozv Acts the retailer’s list since both treat of 141 142 seriously urged follows that are bound to contain sim- that Act of 1964 un- 290 is comprehen- deprives ilarities. Act 1964 because them and 290 of is constitutional terms; statute; similarly process of sive it is definitive in others situated of due its up provisions vary mark great degree They law. that “The contend in 1964 brief law, from the Act. price-fixing assailed sections the 1948 like the law, because it unconstitutional vio- doWe not find that Act 360 of process lates the due of the Louisi- clauses (Secs. l(s), Act 290 of 26) and ana Constitution and the Con- United States Therefore, light of are identical. * * * Every stitution. reason which v. Louisiana Board Brothers led price- Court invalidate the 1948 Control, Alcoholic La. fixing applies.with equal force law to the precluded we 1964 law.” further consideration errors herein assigned, supra, judgments of manufacturing and sell- ing intoxicating liquors court. trial one which the early State controls. In the case of State constitutionality attacking Nejin, (1917), 74 So. 1964, plaintiffs 290 of in their contended Court : stated petitions Ill, that it violated Art. Sec. “ I, 2, 1921, Sec. * * Art. La.Const. and * upon question The law Fourteenth Amendment to the United presented thus well stated follows: Constitution, in that the Act unlaw- States “ ‘The entire of manufac- powers fully delegated pro- and rights to turing selling liq- and intoxicating ducers to fix certain and define cer- completely uors is the con- within punishable conduct tain crimes criminal state, nothing trol of the there is provisions the Act. under Constitution of United prevent to regulating States it from at- constitutional We find the above traffic, restraining or from which will tack without merit for reasons prohibiting altogether.’ 6 R.C.L. § stated, and the further hereinafter 271.” urged plaintiffs reason plain- supra, Kansas, In Mugler 623, stated v. contention herein. As 123 U.S. 8 273, case rely S.Ct. (1887), tiffs on the 1949 31 L.Ed. 205 the United which, Supreme Court, certain supra, discussing held that sec- States in as stated certain proc- relating the due statutes of of the 1948Act violated of Kansas to tions and Federal the manufacture intoxicating of the Louisiana ess clause sale petitions plaintiffs liquors, In their stated: Constitutions. 144

143 “ * * * Supreme The United States Court re- legislation of that Nor can affirmed view as late as 1964 Hostet- within the fourteenth come character case, Voyage Liquor Corp., ter v. amendment, it is Idlewild Bon unless 324, 1293, 12 object U.S. S.Ct. L.Ed.2d is not apparent that its real 350, saying: community, promote or to protect the well-being, but, under scope “This view of deprive police regulation, to guise Twenty-first respect Amendment1 with restrict, regulate, liberty property, to a State’s of his the owner ”*** prevent or the traffic and distribution process of law. due without has within its borders intoxicants 132, Ziffrin, Reeves, 308 U.S. Inc. unquestioned. remained See [State of] (1939), 84 L.Ed. 60 S.Ct. Washington, California v. [State of] further Supreme Court United States 3 L.Ed.2d 79 S.Ct. U.S. stated: Reeves, Ziffrin, Thus, Inc. L.Ed. 60 S.Ct. U.S. Twenty-first Amendment sanc- “The Kentucky 128, there was involved legislate right of a state tions the statute, long, comprehensive measure brought intoxicating liquors concerning rigidly regu (123 sections) designed without, by the Com- unfettered production late and distribution a state Without doubt merce Clause. beverages through means alcoholic absolutely prohibit the manufac- manifest licenses and otherwise. intoxicants, transportation, their ture of traffic, purpose is to channelize irrespective sale, possession, of when evils; commonly attendant minimize obtained, produced or or where the collection also to facilitate put. Fur- they are to be use to which manufacture, To this end revenue. may adopt reason- ther, she measures sale, possession are transportation, and these in- ably appropriate to effectuate only carefully pre permitted under police au- subject full and exercise to con hibitions scribed conditions and ” ” * * * * * * by the state.’ thority stant control respect of them. (1933) Twenty-first held that while 2. The Hostetter ease Amendment 1. The permits Twenty-first pro a state Amendment of the United States the Constitution to restrict importation transportation intoxicants 2. The vides: “Sec. consumption Territory, its bor- any State, within importation destined into give ders, exclu- not the states possession does for deliv it States United in intoxicat- ery intoxicating liquors, over commerce sive control or use therein of ing liquors. Idlewild The affirmed thereof, case here is violation laws Liquor Corp. Epstein, Bon-Voyage et v. prohibited.” D.C., F.Supp. al., 212 376. 145 14g possess

A citizen does inherent welfare of the than another busi * * intoxicating right liquors, ness; sell but our v. ex rel. Galle recognized City 371, Court has the business Orleans, of New 113 La. 36 liquors See, selling intoxicating is 999, a law- (1904); So. 67 L.R.A. 70 calling. recognized ful also Bon-Voyage Liquor Corp. has Idlewild v. liquor in- Epstein, business is associated with 376, Supp. 212 F. 377. evils, fact, and, herent because of this proposition “The generally ac may imposed regula- business on it cepted that there is no inherent right stringent tions more other busi- than on in a citizen intoxicating liquor, to sell nesses. may and the permitted business be un der conditions such will limit to the organic

“Our law therefore secures utmost the evils associated therewith. every 'citizen right to earn his * * * Due to the nature of the busi calling, livelihood lawful unless ness, governing may authorities im deprived right he is of that due pose regulations on stringent it more law, process recognizes and it than businesses, on other State ex rel. liquors selling intoxicating City Galle Orleans, of New 113 calling upon by conferring as a lawful 371, La. 999, 70, So. L.R.A. Assembly right the General Ann.Cas. and while constitutional and, regulate prohibit it; rather than to guarantees cannot be transgressed, conformably to the mandate thus con- is settled enjoyment of all ferred, Assembly recog- the General rights subject police power calling including nizes it as a lawful regulations reasonable pursuant enacted among pursuit callings, other Am.Juris., thereto. verbo Con which it authorizes the issuance Law, stitutional p. Section 1006.” licenses, by making attempt to no City Rouge * Rebowe, * Baton it, prohibit *.

“ ^{[*] [*] [*]} (1954). “ * ** power A of this im- statute state regulate busi- upon posing conditions the business ness resides within the State under police power. selling intoxicating liquors, though XIX, Art. Sec. La.Const. “ * * * than right be more onerous those regulate conditions business, imposed upon another the traffic of is an inherent the, selling which, sustained because the business of state express under the provisions intoxicating liquors seriously af- more of Section of Article XIX health, morals, fects the of the Constitution .of 1921 can never 148 147 ** the under all depends on whether Gardner, primarily v. surrendered, regulation is the existing circumstances “The 861, (1941). 132 5 So.2d La. 198 it is arbitrary and whether or powers, reasonable police enact may, under its state purpose really accomplish a designed to traffic, it or regulating the laws scope the the of properly falling within either altogether, may prohibit the traffic Am.Juris, Con verbo localities, police power.’ 11 such specified and in statewide or ”* * * 1075; 1074, 302, pp. City Law, Sec. stitutional are constitutional. statutes see, also, Bros. v. Louisiana 159, Gullotta, 159 La. Bogalusa 181 170, 148, A.B.C., p. 43 Board of 216 (1935). So. 309 680; City De 248, A.L.R.2d 14 in the exercise of The So. Mangano, 186 La. 171 Ridder valid, must be the enactment laws Rebowe, City Rouge v. 826.” of Baton be imposes it must and the restrictions (1954). “Price 226 La. 75 So.2d 239 applied de- be “The test to reasonable. control, any regulation, like other form of a valid there has been termining whether only arbitrary, if dis is unconstitutional in the con- police power exercise of demonstrably criminatory, irrelevant to or inquire whether is ‘to stitutional sense Legislature adopt, is policy the free to rights to imposes secured it on restrictions unnecessary unwarranted and and hence an Rights are un- the Bill individuals liberty.” Neb interference with individual imposes reasonable, it not whether and * * * York, People bia v. of State of New The rights. such restrictions on 940.3 therefore 78 L.Ed. validity police regulation U.S. S.Ct. following ly perti- legislative policy ease, to be clear that if In the Nebbia competition harmful made:— curb unrestrained and by wore nent statements arbitrary proc- requirement are not of due measures which as the far. “So discriminatory concerned, not lie with in the absence does is ess restriction, un- a state courts to determine that is constitutional other .rule policy policy adopt of the economic wise. With wisdom whatever free to is may promote adequacy practicabil- adopted, reasonably to with the deemed policy ity it, welfare, enforce that of the law enacted to forward and to incompetent adapted purpose. legislation unauthor- are both its courts authority de- ized to deal. The of decision without either course are courts policy, or, is declared court firm adherence when it exhibits a clare principles. legislature, override it. these without number Times * * * Legislature operation of the free we have said that primarily ‘Whether necessity competition judge is a wise of the laws of normal enactment, every possible and com- an rule for trade such presumption wholesome question validity, which this favor of an economic merce is though may or determine.’ in- the court hold views not consider need court States, law, United consistent with the of the Co. v. wisdom Securities Northern 436, 457, 197, 337, palpably 24 S.Ct. annulled unless U.S. equal- legislative 701], power. [700, it is excess of And L.Ed. n ‘If the laws State, well-being people of the passed are seen to have a we asked, re- a real and substantial proper legislative “Is there relation to a reasonable mandatory minimum arbitrary dis- lation between the purpose, neither nor and are preventing proc- ups statute and the criminatory, requirements mark due injury economic, moral satisfied, judicial social and determina- ess Are being people state? tion a court well to that effect renders functus ’’ reasonably nec- People (the ups) New Nebbia of State of those means mark officio York, essary accomplish- supra. See, Cigar appropriate and for the Lionel’s Store 341; purpose McFarland, ment legitimate object 162 La. of the or So. Maestri, (regulation Mouledoux v. 197 La. So. the statute announces that traffic) 2d control of the believe 11. ?” We questions the same can asked herein. ^ case, In the 1949 we ob- object purpose served that the announced or evidence of record in the instant prior case regulate passage of Act 360 and con- discloses that to the of of 1948was to trol, police power, (sixteen years all traffic of 290 of 1964 after the under the deals, discounts, 1948), than Act of beverages containing alcoholic more some gratuities by place portions per six centum alcohol volume. We took in some of clearly liquor trade; in the stated said that such was there were occasional Applying competition; the test of the preamble. Act’s wars and some ruinous Act, supra, great ef- language liquor to the a number had of the 1948 retail sales only liquor up; in- a fect that traffic not cause mark the sales of certain 6% social, economic, high $2,000,000.00 jury and moral volume retailers ran as to the as past industry itself, appro- lawmaking in the bodies have struction of the “The competition priate passed promote free statutes in an honest effort endeavored to consequences monopolies. to correct may aimed trusts threatened laws at n private regula- consequent with not be set aside because the interference Tlie prices reasonably adopted property not has tion fixes Legislature of contract and freedom these en- to be fair to set deemed with the courts availed denying process. engaged industry due in the and to those aside as actments consuming public. especially public was deemed And this is interest Whore the where, here, fixing prices, require malad- so justment the economic price, expedient If the is one of which threatens been sustained. has that gov- producer sphere lawmaking body at one end of. the harm to the within its or and the consumer at other. conditions series concludes ernment any industry practices unrestricted The Constitution does not secure to make in an liberty inadequate safeguard competition one conduct his an injury upon interests, produce waste such fashion as to inflict consumer’s upon large, public, or ultimate- substan- ” threaten harmful ly * * * commodity group (Em- people. supply tial phasis supplied.) aof cut off the portend public, de- needed LSA-R.S., necessary (Schweg- not $5,000,000.00 was that such (Reynolds) stated, purpose be Buras v. adver- Orleans Parish per year; retailers mann) volume Com., beverages Democratic Executive 248 La. of alcoholic tised several brands 576; We, 177 So.2d it was so stated. the wholesale slightly above at retail therefore, question direct to ourselves the brands. same cost service retailers relationship of whether reasonable exists that since The evidence further shows (a) purpose bringing consumption about between passage of Act 290 of temperance consumption intoxi- in cer- beverages dropped has of alcoholic cating liquors, adopted (b) the means instances; deals, mark more low tain no accomplish purpose, namely, min- up selling price appeal, price wars or imum control act. competition exist. ruinous ' Dictionary Webster’s New World compelled to conclude We College Edition, American Language, de- which existed in the factors temperance fines as follows: prior of Act 290 trade to the enactment * * * wel- to the economic moderation, 1964 were detrimental sobriety “n. * * * business; price traffic fare quality being the state or levels retail and wholesale structure at temperate; conduct, both self-restraint large primary to a source of trouble was expression, appetites, indulgence of the imperative etc; moderation, number of dealers. originally as one of liquor business the economic welfare the four cardinal virtues. 2. modera- stabilized; herein as are such conditions eating drinking, especially tion in may prevalent not have been evidenced drinking liquors. alcoholic total 3. con- years are before. We sixteen liquors. abstinence from alcoholic price struc- strained to conclude adopted by is related Act 290 of 1964

ture following pronouncements The de- al- of the sale to the economic welfare (although cisions of other states we are not in its is reasonable beverages and coholic by pertinent: them) bound are application, “ * * * liquor long traffic The has x recognized danger been- a source of by Board appellant Emphasis placed public welfare, safety, health had Act 1964 upon the 290 of fact regulations governing the conduct bring- purposes the primary one its for frequently going to consump- temperance in -the ing about of prohibiting altogether the extent of liquors. intoxicating Since tion .of beep Boston Beer Co. sustained. merely to West’s an amendment was Act Massachusetts, consumption in less by intoxicants v. [Commonwealth of] 989; 25, 32, Mugler U.S. 24 L.Ed. and has caused to be Kansas, surroundings.” 123 U.S. sold in more v. State of wholesome ** 205; Simons, Ky. 793, *. Reeves 31 L.Ed. S.Ct. S. (Emphasis supplied.) W.2d 149. protect “The of the to “ * * * itself an of the exercise The establishment of re- power is with the nature commensurate prices tail for customers of retail the evil which it seeks to eliminate. police pow- stores is an exercise of Legislature came to the conclu- If promote temperance, er order to of retail sion the establishment business, price stabilize the to avoid prices package stores wars, customers law, to instill observance of the ” * * * temperance, promote tend would protect public. and to business, package stabilize the store Liquor, Kneeland Inc. v. Alcoholic cut throat com- avoid wars and Com’n, Beverages Con. 345 Mass. petition, more and to instill observance 186 N.E.2d (Emphasis 593. supplied.) engaged in the law in those “Although question the act here in protect (cid:127)business would better does not contain a ob- statement public, say belief so we cannot jects sought accomplished, to be objects these irrational that none of purposes Assembly which the General passage result from the would adopting easily had in mind are (Emphasis Supreme supplied.) act.” They pro- discernible. were both to Beverages Prod. Malt Co. v. Alcoholic temperance mote consumption Com’n, 133 N.E.2d C. Mass. liquor and, by intoxicating stabilizing industry, encourage observance Liquor proof price- “The shows that due to Control those who competition permitted cutting and are to cut-throat to sell not to be producers, retailers, premises. wholesalers and consumed on the reasonably presumed that, existed in which chaos the trade re- without violations, in law excessive a minimum retail sulted use establishment of liquor, price intoxicants and other conditions for branded wars among apt detrimental to the commonwealth. The retail to occur. dealers fixing cutting that the to the effect occurs evidence during may prices persons a stabiliz- such induce of has had wars ing upon industry, purchase, consume, effect the done to and therefore away liquor they competition, higher with resulted more than would if ruinous Schwartz Moreover, power of the state.”

prices maintained. were 89.4 Kelly, Conn. 99 A.2d en- competition which cutthroat the supplied.) (Emphasis to the retailers apt induce to sues is as of the law infractions commit jurisprudence above light In the open keeping and selling to minors record, and we conclude evidence the order to withstand after hours urged by ap- pux'pose temperance, prevent To pressure. economic pellant purpose to a Board promotes of such conditions occurrence appropriate- (the wisdom and Like, health, safety and welfare. a us), not has ness of which does concern liquor restrictions on all reasonable relationship a minimum direct with traffic, well within purpose is such a words, there is control act. other * ** the state. police relationship purpose— direct between the purpose, accomplish this “To consumption curtailing liquor —and instance, has, Assembly in this General accomplish Ap- adopted it. the means to permitting adopted method pellant well in brief: Board states prices at fix minimum to wholesalers competi- “As a result of the ruinous may liquor be sold each brand of practices at the local level tive recog- fixing is well at retail. Price industry industry, de- had become reasonably suited a method nized as moralized, chaotic, unstabilized. and, there- purpose effectuate such legislature regulating An effort process. fore, violation due is not a stabilize, surely pricing would tend * ** re- Clearly, act which industry, bring about rebalance a condition quires wholesalex's as market, ordexdy so foster tem- an as to schedule ixi state to doixxg perance may say consumption. One brands at which their minixmxm no alcoholic matter what per- prohibits sold and sold, people beverages will continue less selling true, at retail buy mittees from will but them. This them, buy much of and if prices within than those discretion, uninformed in State tude and case was cited The Schwartz experience Hughes, A.2d their own observation and gained by 3 Conn.Cir. discussing maturing years, court, like- were most wherein ly prohibited excess intoxi- into of dissolute to fall habits the sale law which * “* * stated: — n grave themselves, vice, injury minors, cants sapping resulting progressively manifestly in a directed at The law was minimally eradication, the dis- in the moral sinews and decadence indulgence lofty resolute, couragement, of a determined and aims of alcoholic ” ** * evolving society. lacking self-discipline, who, forti- minors 158 157 bargain separated plaintiffs idea of a can be the unconstitutional- show purchase ity not find that of such of Act 290 of 1964. We do beverages, much burden; fact, they temperance their have met their will be fostered in these expe- they people.” testimony reflects that drop in since rienced sales somewhat of principles “Under familiar of constitu 290; however, adoption of Act the evi- law, tional validity of a statute put that will be dence does not reflect presumed. duty It is the court of the business, reflect that out of nor does it uphold clearly a statute unless vio confiscatory. In our effect of the Act is organic Any lates the law. doubt must be opinion, drop show that in sales tends to validity resolved in favor of the solemn of a accomplished. temperance some has been expression legislative of the Police will.” conclude that Act 290 of 1964 is rea- We Jury of Parish of St. Charles v. St. Charles sonable that it is a valid exercise of 764, 2, Par. Waterworks Dist. No. 243 La. police power for legislative will under its See, 146 Orleans Par So.2d 800. Buras v. health, welfare, protection safety, 203, Com., La. ish Democratic 248 Executive peace, people morals 576; Schwegmann Bros. Giant 177 So.2d price provi- of Louisiana. Its minimum 768, McCrory, Super La. Markets v. 237 sions, supra, definitely related stated prin familiar 112 is also a So.2d purpose Act seeks to ac- which the ciple who at of constitutional law one complish. neither Act 290 of 1964 violates constitutionality statute has tacks the of a process Louisiana the due clause of the cogent clear and showing the burden of Fourteenth nor State Constitution is unconstitutional. evidence that statute Constitu- Amendment to the United States Railway Company City v. Kansas Southern tion. 915; Inter 235, Reily, 242 La. 135 So.2d judgments assigned, the For the reasons Guilbeau, 217 Pipe Line state Oil Co. v. cases of the trial court in these consolidated 113; 160, 16 Constitutional So.2d 46 C.J.S. aside; the suits are reversed and set are not 99, p. acts 388. Price control Law § plaintiffs their costs. are dismissed at See, Pickerill per se unconstitutional. 716, Gipson v. Mor Schott, Fla., 55 So.2d HAMITER, (dissenting). Justice Am.Jur., Intoxi ley, 30 233 S.W.2d Initially, compelled I am to take issue 550; Schweg 36, p. Liquors, Sec. cating majority herein with the conclusion of Mc Super Markets v. Giant mann Bros. provisions Act 290 of 1964 Dis supra; Louisiana Wholesale Crory, materially from those of are so different Rosenzweig, 214 La. Ass’n tributors decision that our upon Act 360 of 1948 herein rested burden 403. The So.2d therein, opinion or in Nowhere Louisiana Board Brothers v. counsel, suggested Control, briefs was 216 La. Beverage of Alcoholic posting is not the matter 248, 14 A.L.R.2d To issue. provisions ever at reaching listing such con- controlling here. the de- contrary, throughout its brief Sections majority refer to clusion the Board, fendant, Control and seem Alcoholic of the 1948 statute again that requirements rel- reiterated time and time suggest that somehow the listing act, including 24 and posting and Sections ative to price mark-up law. merely that act more of a minimum the Board made instances, mandatory mini- act, [Thus, point setting rather than a but two out ap- in- mark-up as the one mum statute such “It is thus Board asserted its brief: inapplicable here, rendering not, parent thus volved that the Statute does Schwegmann decision. imagination, the initial fix the widest stretch of liquor sold in at which shall be nothing my opinion act was In the 1948 * * * All has Louisiana. this statute mark-up mandatory than a minimum more require done is to a minimum wholesale every particular the same law—in essential mark-up by the wholesaler and retail 24 and as the act —and Sections ** * retailer, Act 360 over their cost. majority dis- (relied thereof on all, price-fixing is not a statute at language tinguish the contained statutes) providing merely regulatory Section designed merely to facilitate the enforce- dealers, price.”] mark-up irrespective mark-up provisions. ment

Furthermore, respect with all due to the opinion original Throughout in the majority agree finding I cannot with the act treated the 1948 was case in- of fact relative to conditions in the validity (and determined) on the basis dustry prior to the enactment of the 1964 mark-up only being a minimum of its statute or that the situation differed mate- statute; places than four therein no less rially prior from that had existed whole, and 24 and the statute as a Sections to the enactment the 1948 act as shown pro- particular, as 26 in are referred to opinion. original Schwegmann in the At viding mandatory mark-ups; minimum page majority opinion 802 of the herein pointed and it was out the attack in the said: “The evidence of record mandatory made on the statute was that prior instant case discloses that mark-ups, under the circumstanc- years passage (sixteen of Act 290 of 1964 time, existing process es due at that deals, violated 1948), dis- after the Act of some counts, gratuities place in took some of law. portions trade; liquor plus there were business for rent for the build- $200 occasional ing.] wars and some ruinous * *

competition; *.” But even conceding arguendo the above' facts as majority correct, found to be act, passage Prior of the 1948 there is no evidence whatever to show (lower prices the same “deals” on bulk the results intended to be reached purchases), gratuities discounts and were by the statute would be to the economic operative trade, and, pointed as we interest community and welfare of the opinion out statute, in the relative to that people fact, to its as a whole. the ma- there was also some evidence of isolated jority opinion suggests that the statute present cases of wars. The record was enacted for the liquor benefit of the only price war, shows one generally liquor and the small Shreveport regard area. to the ex- With particularly dealers benefit to be ren- —a competition”, istence of “ruinous the evi- dered expense of the consumers dence, appreciate it, as I forces me to compelled pay who are higher prices. conclude that it was but not “ruinous” Thus, it compelled is said therein “We are merely competitive greater and to no ex- to conclude that the factors which existed prior tent than to 1948. In this connection prior trade to the enactment pertinent it is to note that the number of of Act 290 of 1964 were detrimental to the liquor outlets, retail diminishing rather than economic welfare of the traffic or competition would be the case if the business; price structure at both retail and ruinous, were steadily increased from the wholesale primary levels was a source of 1930’s the 1960’s. All the retail deal- large trouble to a number of dealers. ers who (most testified the defendant imperative was that the economic welfare many of whom had been in business for stabilized; business such years) exception almost without admitted may conditions as are herein evidenced not they prospered. instance, that had [For prevalent have been in years sixteen Anthony Mr. partner Cardaro and his before. We are constrained to conclude started Shreveport in business in some that adopted by structure years prior thirteen ap- trial with 290 of 1964 is related to the economic proximately $4,500. years About seven beverages welfare of the sale of alcoholic they incorporated later capitalization with a application.” and is reasonable in its $70,000, acquired having meanwhile out profits of their building, $25,000, worth suggestion There is no that the men- they in operated; and each of them operat- tioned factors and conditions were drawing per was ing disadvantage month $800 from the to the economic of the. buying they in rather, stores but, that were consequence the As a as a whole.

citizens conveniently after the located more by majority permitting result reached — longer larger was no advantage at store opera by the state with interference Moreover, plaintiff third for the available. merely of a lawful tion throughout from small retailers all of the business or the kind of benefit of one called as witnesses complete the state who were special interest involved therein — their that volume the defendant testified made ly our observation contravenes materially them and two of Hall, increased had City of Alexandria doing now volunteered that were approved as So. not done they had Alcoholic “case business” which Board Brothers Louisiana Control, “‘To supra, before. which was: its interposing justify the in thus state it that these facts is obvious From public, it must authority in of the behalf not, any than did more 1964 statute does of the appear, first, that interests act, degree perceptible tend in distinguished those of .generally, as namely, purpose, toward its asserted class, require interfer such particular regulation that and control of so and, ence; second, are rea the means economic, injury it not cause accomplishment necessary for the sonably people being moral well social and unduly oppressive purpose, and not regard generally. And this the state may not, Legislature upon individuals. The re- that the factors be observed should public in guise protecting the under Schweg- original in the ferred to us terests, arbitrarily private interfere with decision, showing mann business, unnecessary impose or unusual effect, equally act not are did ” occupations.’ upon lawful restrictions applicable presently rtnder statute stat- (Incidentally, neither consideration. or the 1964 respect to whether With designed prices of beer ute to control promote application tended statute in its orbit bring nor to within bar drinks find, scrutinizing temperance after I can charged the manufacturer very carefully, no evidence the record distiller.) pe- consumption generally declined actually of the act. If following the effective date this 1964 statute were one riod True, control, large regulate prohibit retail distributors the sale two of the or even liquors, plaintiffs intoxicating indicated that herein and distribution who However, all dropped. interest welfare of their sales had testimony Louisiana, people this of then their was I would clear from buying opinion represents proper be of consumers were less a not because the and, police power liberty expressed eration of individual the state’s exercise competition.” in main- gladly vote to accordingly, I would constitutionality. But it is not such tain its respectfully I dissent. it ob- above pointed out As a statute. SUMMERS, (dissenting). respect- Justice fight quarrel or a viously evidences among liquor interests ex- price fixing ing intent, I find no distinction between result con- clusively produces a purpose and of Act 360 —one effect free American trary principles of the which declared this was unconstitutional good enterprise system I cannot (Schwegmann court in 1949 Brothers —and support the sustain- advocate or conscience Control, Beverage Board Alcoholic validity. ing of its 680), 216 La. 43 So.2d 14 A.L.R.2d intent, purpose and the effect respectfully I dissent. presently 290 of 1964 under consideration. upon by The relied the ma- distinctions SANDERS, (dissenting). Justice jority precedent of compelling to avoid the difference be- no substantial I can see Schwegmann are first case inconse- the 1948 stat-

tween Act 290 of 1964 and quential unimportant differences which Schweg- this Court struck down ute that underlying have no relation effect Board Al- Louisiana mann Brothers v. acts; similari- the two whereas the basic Control, 216 La. coholic upon ties in the constitu- the acts (1949). Nor 14 A.L.R.2d 680 tional issue turned in the first any significant change I find can indisputable. was intended case What that decision. economic factors since basic accomplished in and what to be each act previous decision Hence, my opinion, accomplished by language in fact was present be declared requires that the statute mandatory mini- the enactment unconstitutional. prices. mark-up mum dis- effort to majority’s unsuccessful The real or substantial has no The statute presents in bold tinguish the two acts al- temperance in the use of relation integrity of disregard for the relief its Rather, designed beverages. coholic important an court’s decisions on this own competition in the market to eliminate question. This decision constitutional price. statute by fixing minimum stability against telling blow strikes of our chops away section another simply im- and undermines in this State of law Bran- system. As enterprise free Justice prestige measurably in regula- law system warned, “No aptly déis op- for the court. safely be substituted tion can otherwise, striking me that the facts are for there sim-

Moreover, from the aside tendency showing for the acts, in itself is no the ilarity which the two of increase, compel liquor adherence volume of sales to to should be sufficient many years in- case, prevailed without is no has there the to first ' terruption, An increase in otherwise, factually or has abated. justification either liquor to constitutionality of sales is difficult of the volume sustain the legally, to temperance in associate with the con- the 1964act. liquor. Temperance sumption being the of State has pretense that the There is little only public generally the avowed benefit to the police power bear for brought temperance resulted, having and no It seems to public generally. good of a in- none will result such small invoked regulation is that this conceded liquor price (SO crease in the cents to industry protection of the for the per fifth), it is clear that this enact- $1.00 very small recognized as a which must be public good ment is not for the on basis public. On the general segment of the temperance. being This so there is no hand, price other the rise established or discernible basis for invok- consequence this enactment which is a ing and cur- of the State public at undoubtedly adversely affects tailing rights the fundamental of citizens. then, any fair- large. apparent, every right For it is the citizen under object of this that the real minded observer life, liberty, guarantees the constitutional protect public generally act is not to right acquire, dispose but, hold and well-being, promote general or to pursuit happiness property, and guise police regulation, under the engage occupations un- lawful without unduly with the fundamental interfere government. interference warranted opposing this act and to rights of those right protected against must arbi- This part public segment favor a small —a State, trary and the interference particular business —over legislature may not, unless the deprive those is to generally. The result requires it, impose public good unreason- liberty proper- opposing their the act of unnecessary pri- able restrictions on ty process due of law. without business. vate consump- temperance in the It is said that enterprise competitive sys- The free beverages results from tion of alcoholic protected tems of business which are public good is served enactment principles much from to- these will suffer thereby. begin there is no evi- To day’s decision. finding. On support dence to respectfully dissent. I contrary, my of the record convinces view 17Q ranges thirty ON REHEARING tailer per from ten to cent. plus markup The cost is termed the SANDERS, Justice; price.” prohibits “list The statute sales be- granted rehearing We this case to list, minimum, low price. gen- holding reconsider our that Act 290 of eral effect of the statute has in- been to 1964, relating to the sale of alcoholic crease the beverages. of alcoholic beverages, po was a valid exercise of the coercive, Plaintiffs attack the statute as a power. holding lice That the would have measure, price-fixing outside the domain of far-reaching effects in the field of police power, and violative of the Due regulation apparent. But also of con Process Clauses of the State and Federal assertion, cern us to was the in the dissent They Constitutions. assert this minimum ing opinions rehearing, and for motion that price substantially statute is the as same departed prior the Court had from its de 1948, 360 of struck down this Court Schwegmann cision in Bros. v. Louisiana Schwegmann Bros. v. Louisiana Board Control, Beverage Board of Alcoholic Control, Beverage supra, Alcoholic and 148, La. 43 So.2d 14 A.L.R.2d 680 any the facts reflected in the record rebut (1949). assumption promotes the temper- statute ance legitimate object other of the principles, Under familiar police power. n course, the presumed statute is constitu

tional, plaintiffs Defendants and seek to sustain the have the burden statute as one infirmity. reasonably designed (cid:127)demonstrating protect gen- its constitutional the health, Jury morals, eral peo- Police of Parish of Charles welfare of the St. v. St. ple and, hence, proper a Charles Par. exercise of the Waterworks Dist. No. police power. 800; Rones, La. 146 So.2d 99; 67 So.2d Consti Our Am.Jur.2d reconsideration of the case has con- 137, p.

tutional Law § price regulation vinced us the scheme of substantially this statute is the same as that original opinion fully recites, As the the in Act previously 360 of condemned .assailed statute establishes minimum by this Court. Both fix statutes manda- beverages for the sale of bottled alcoholic tory markups minimum for wholesalers 'by markups imposing mandatory from cost and retailers. The 1948 statute contains upon both the wholesaler and retailer. markups. higher somewhat Both statutes markups percentages are stated of the cost prohibit price. below the minimum sales price. Depending upon type the of bever- .age, markup the ranges Appellants wholesaler’s suggest posting the re- eighteen per quirement (cid:127)ten to re- cent. That of the it a 1948 statute .made existing all the circumstances a minimum mark- under price-fixing rather than arbitrary regulation is reasonable We, however, le- up are unable to statute. designed really it is to accom- whether gally distinguish the statutes on two plish purpose properly falling within posting requirement basis. The scope power. police merely an enforce- seems the 1948 statute re- any event, posting ment aid. appear that every “In it must case in our deci- quirement no factor necessary adopted reasonably means are opinion, the Throughout Court sion. accomplishment appropriate for mandatory treated the statute as object legitimate within the domain aof such, markup and, it uncon- as found law be police power. A statute stitutional. also reason- must within this operation upon persons in its did the eminent able concluded, We affects, an- sub must not be for the whom it judge,1 trial two statutes class, must Hence, legal prin noyance particular of a stantially identical. * * * unduly oppressive. ciples Bros. not be announced of Alcoholic Louisiana Board order "It is a rule Control, supra, We have control here. reasonable, a police measure to be approval.2 it with often cited adopted reasonably neces- means must accomplish- appropriate approvingly Quoting sary from American Ju- objects falling laid risprudence,3 legitimate case ment Court following testing the rule for down the scope power. within In order validity po- purported of a exercise legislative interference sustain power: lice power, either virtue of ordinance, municipal validity police regulation or a of statute

“The a necessary some depends on that the act should have primarily whether therefore given 148, judge 396, 410, (1958); a 104 1. The said: “I have So.2d 153 trial Licensing by study Banjavich very Board line of Act 360 v. Louisiana careful line * * * 494, 467, Divers, La. 1964. Marine 237 of and Act 290 of for 1948 505, Roksvaag (1959); v. I find difference 111 So.2d Reily, 515 can’t essential 1094, 1100, particular mandatory provisions, La. So.2d the ex- 237 113 Randolph Village cept percentages 285, (1959); of v. the differences 287 Creek, Turkey 996, 1003, mark-ups.” 126 240 La. 341, (1961) ; 343 So.2d State v. Gold- Rebowe, 860, 966, City Rouge finch, 958, La. Baton v. 241 132 So.2d 2. See of 239, Highways 186, 192, (1961); Department 241 v. of 226 La. 75 So.2d 863 Antiseptic Co., (1954); La. Power Dr. G. H. Tichenor Southwestern Electric 243 Super 584, 312, (1962). 564, 145 v. Giant 319 Co. Brothers Am.,Tur. 343, Markets, 66, La. 90 So.2d 3.11 Constitutional Law 302 §§ 231 (1956); Birdsell, 235 La. and 348 State v. 303. or, legislation objects, pretext a that relation to such made mere reasonable for legislature examples, does not within it. The specific public for more the t.o fall Moreover, power, guise police public health. has no the welfare or under arbitrarily per- to invade the accomplish- regulations, law toward the must tend rights liberty the individual promotion sonal and purposes ment or such citizen, clear, private busi- degree perceptible to interfere with and unnecessary and preventing impose ness or unusual either some or offense occupations, or furthering upon restrictions lawful or in evil some manifest object. rights.” employed property to invade means should not go beyond the necessities of the case. Hall, City also Alexandria v. See 722; Blake, La. by So. legislature

“The mere assertion 592; Legen- health, La. and State 127 So. a statute relates to the dre, L.R.A.1916B, safety, bring 70 So. does not in itself zvelfare police power within statute state, always there must ob- be an legislative no of 1964 contains vious connection and real between findings legislative and no 'ob- enumerates police provisions regulation actual aof However, present jectives. appellants vari- purpose and its and regula- avowed arguments ous establish a substantial re- adopted adapted must be reasonably tion statutory provisions lation between these to accomplish sought the end at- to be objects police legitimate and the A stattite or tained. ordinance which public health, morals, power: and welfare. real, substantial, has no or rational rela- arguments be divided into two These morals, health, public safety, tion to the statute (1) main contentions: tends palpable is a invasion welfare promote temperance, (2) the and statute by the law rights secured fundamental prevent price tends to wars ruinous legitimate cannot be sustained competition. power. appli- One exercise of rule that the validi- cation Initially, rejected familiar we note Court to be determined ty an act is Schweg- in the 1949 identical contentions effect, practical operation and mann The Court concluded decision. purpose, is that a or declared its title tend, mandatory markups did not abridged cannot be right constitutional clear, degree perceptible and in a that was police regu- guise legislation under legisla- accomplishment of toward the must mandatory markups purpose, The exercise lation. tive achieving gen- inappropriate be were basis cannot substantial have a power. industry by objects eliminating price Further- wars and eral change competition in the ruinous more, decisive also without we observe no merit. climate of the The evidence reflects or business no deterioration in economics industry industry decision. economic situation of the since our former since 1948. No economic crisis looms. The deal- higher Appellants’ argument invariably ers almost conceded had promote temperance of the statute prospered enterprise sys- under the free statutory price control is unfounded. The tem. Since the number of retail applies “package” only sales of distilled substantially outlets has increased. spirits and statute does wines. The It is true the record reflects some re- purport regulate price of alcoholic get tailers by their stock at lower costs Nor beverages sold the drink. does purchasing large quantities. It also two price of beer. It is true that touch shows competi- one instance of intensified distributors, plaintiffs, large retail tion, “price war,” referred to as a in the dropped since indicated their sales had Shreveport years area about two before But into effect. went present enactment of the statute. But suggestion that the statute reduces al- the situation is no different from that found consumption is refuted the evi- cohol prior to the 1948 statute. The evidence ne- plausible explanation in dence. The most gates any disadvantage to the as a up” “split the record the statute whole or threat to the welfare. district found it tend- business. The court competing “equalize ed to the business” Large quantity-low price purchasing is a large It dealers. reduced the sales of practice common in the distribution of most retailer, previously been able to who had commodities big- in the free market. Such price because of the cost ad- sell at a low operations market brought vantage quantity-buying. increased American clothing consumer food and the sales of the small outlet and corner re- prices. reasonable tailer, who because of the coercive then competition severely Price limited in sold at the same features statute Act, this state the Unfair Sales LSA-R. competitor. larger as his If 51:421-51:427, prohibiting S. the sale higher markups of the 1948 statute had no regular merchandise in the course of temperance, real relation to as this Court cost. below The record shows held, postulated pres- can it how that the competition. competi- no “ruinous” ent statute has? appellants tion would have us hold to. be

The contention that the statute prime tends to ruinous has been a in the factor problems relieve critical economic achievements of American More- business. over, fully assigned quite in our putting for the reasons below cost is different from decision, previous Schwegmann platform. Bros. v. the sales itself on steel Beverage Board of Alcoholic Louisiana plaintiffs We conclude the Control, mandatory markup in the con- discharged demonstrating their burden of appropriate is not an text of this statute unconstitutionality of the statute. It There preventing wars. means bears no real or relation to the substantial we said: health, morals, or welfare of' the argu- “[AJssuming for sake people. represents ignoble At best, it an possible liquor price ment that wars are violates, flight competition. in this state and that strin- of occurrence Due and Fed Process Clauses of prevent gent regulations to them eral Constitutions. hold it unconstitu We needed, agree the manda- we do not tional. tory markups provided by of 1948 Act 360 assigned, judgment For the reasons appropriate constitute means of the district court is affirmed. purpose.” achievement of that Appellants decisions cite numerous HAMLIN, HAWTPIORNE and Justices Many these are support statute. (dissenting). carefully distinguished inapposite and were judgment We are of the view that They rely par previous decision. in our correct, original hearing is rendered on Dis ticularly upon Louisiana Wholesale McCaleb, and we concur in the dissent of J. 1, Rosenzweig, 214 La. Assn. v. tributors Un upholding the Louisiana 36 So.2d McCALEB, (dissenting). Justice Law, Brothers Schwegmann fair Sales McCrory, outset, Super legis- Markets At the I find it odd that our Giant milk, upholding may price-fixing the Louisiana lature laws for enact haircuts, Marketing These stat Orderly Milk Law. all commodities and branded goods attack violating constitutionally to the one under utes are dissimilar without cost, They prohibit right com sales below here. freedom of contract of those busi- doing buying posed .expense dealing nesses but, and trades when doing pre price-fixing liquor, business is intoxicating business. The cost of percent stipulated statutory may legislative- be a noxious substance which sumed to ly contraband, cost. proof pow- a lessor age in the absence classified impotent priv- at less than the statu er becomes and the limited The retailer sell doing tory percentage ilege to those who if his actual cost of the lawmaker accords Prohibiting less. sales seek to distribute intoxicants somehow business has been 180' pose. conclusions invade the do- right property These into a basic transformed particularly legislature, and violat main of the so- restricted cannot be without considering constitutionality of mini- Yet, unseem process. that is the ing due statutes, mani- price-fixing our mum since it is jurisprudence since ly posture of our prevent- way that a effective fest more Bros. 1949 decision competition ing price and unfair than Alcoholic wars Board of Louisiana mandatory mark-ups 14 A.L. over' Control, the device of 216 La. 43 So.2d truth,, op yet and, had the cost has not been formulated. albeit the Court R.2d 680 defect, remedy primary for minimum portunity this is the reason in this case to price-fixing legislation. preferred fast majority has to stand Indeed, the paradox. perpetuation of the majority, In view of the fact that the on my feebly (in rehearing majority on this substantially rehearing, sustains the main ratifica attempts justify its estimation) counsel, plaintiffs’ contention of I will here- by asserting that decision tion of the 1949 arguments all the counsel inafter discuss approving price-fixing precedents all other expound that in an endeavor to show relation to the had substantial measures are not well taken. whereas, here, it states public good, rehearing granted A in was this case “ * * * change no decisive we observe erred, plaintiffs’ consider claim that we for climate of in the economics or business specified application, three reasons industry decision” liquor since our former sustaining constitutionality in of Act pausing cognizance of without even to take 290 of 1964. that, pre must be the fact the statute Initially, original it is declared that our constitutional, plaintiffs had the sumed opinion is in clear with the Court’s conflict proving had been no burden of that there prior ruling Bros. v. Lou- change in the economic condition isiana Board of Alcoholic Con- industry singular after 1948and had trol, 216 43 So.2d A.L.R.2d ly to offer a scintilla of evidence failed argued that, 680. is whereas it was that is case. This is show such markup provisions found that fundamental error committed in the same vary degree 1964 Act in great from the where, 1949 decision as I shall hereinafter Act, assailed sections of the 1948 there is attempt demonstrate, the Court asser no substantial difference between the stat- any

tion of its own deduction and without simply price- utes for both are minimum base evidence before it on which to such and, therefore, fixing laws the Court should deduction, simply the declaration makes follow our 1949 decision and hold the in- legislation public pur- process. that the is without stant statute violative of due liquors, lesser eating was clothed with the unnecessary the dif- It is to re-examine opinion power regulation original constitution- was ferences found our ally any upon measure that based that stat- free to enact which we the view it, discretion, to the conceding, For felt inure the same. in its would utes were not discussion, legislation general The 1964 that welfare.1 purposes for two validity objects dependent for (having principal not in the statutes as their least (as were we minimum on our 1949 decision because 'the establishment of a opin- point original careful to out in our intoxicating liquors) sub- sale Legisla- same, necessarily ion) that the stantially it not it must be assumed does holding ture was well aware of the the 1964 must held follow statute it, there that, notwithstanding the 1948 statute found unconstitutional because obtaining in wholesale in the first were conditions invalid. The decision found tying in 1964 detrimen- effect and retail did not have the case restraining welfare economy general Legislature or tal and the hands of the to the price-fixing— regulations required price-fixing regulation adopting from did liquors time this declared intoxicating a condition which Court the sale of Indeed, statute the 1964 government found that branch exist wel- general constitutional,2 and economic essential de- presumed to must be do. so to fare of decision, spite and the burden the 1949 showing rational relation that there no many contrary, authorities On price-fixing in indus- between quoted approvingly our cited try economy today and the opinion clearly exhibit original plain- State, upon welfare of the rested being legislative government, branch “ proper application of the tiffs.3 ‘The pro- plenary police vested by past power of intoxi- cannot measured (police) the sale and distribution be hibit Kansas, 839, 99; Rones, Mugler Am. 1. 123 U.S. 223 La. State of 67 So.2d 16 v. Crowley 137, 273, 205; (2d) Law, 623, 31 L.Ed. Jur. Constitutional Sec. 8 S.Ct. 13, 86, p. Christensen, 11 S.Ct. v. 137 336. U.S. Reeves, City Railway Compa 620; Ziffrin, Inc. v. 308 3.Kansas Southern L.Ed. 34 915; 128; ny Reily, 132, 163, 235, 84 L.Ed. v. 242 La. 135 So.2d U.S. 60 S.Ct. Liquor Planting Voyage Lake Bon Town of Hostetter v. Idlewild Olivedell Co. v. 324, Providence, 23; Corp., 1293, 621, In 12 L. 377 S.Ct. 217 La. 47 So.2d U.S. 84 Guilbeau, Liq 350, Intoxicating Pipe Am.Jur. Oil v. Ed.2d 30 terstate Line Co. 113; 160, uors, 23, p. rel. La. 46 539. 217 So.2d State ex See. Kemp City Rouge, Jury La. 2. v. 215 of St. Charles v. Baton Police Parish 2, 315, 477; No. 40 v. St. Charles Par. Waterworks Dist. So.2d United States F.Supp. 73, 800; Schwegmann Co., D.C., 764, af Nebo La. 146 Oil 90 243 So.2d McCrory, 1003; Super Cir., v. Brothers Mkts. firmed 5 190 F.2d 16 C.J.S. Giant 606; 99, p. 768, v. § 112 Constitutional Law 407. La. 237 183 184 precedents is, course, present test original opinion our Supreme —the ” day conditions.’ See Louisiana Whole Court of the United States and this Court sale Rosenzweig, Distributors Assn. v. 214 exemplify that, They this rule. declare 1, 11, 403, 406, La. quoting ap 36 So.2d Legislature, whenever the acting under its provingly from police Wholesale Tobacco Deal power, regulations has enacted af- ers Bureau of California v. Na Southern fecting commodities, the sale of it is not 634, Candy tional Co., & Tobacco 11 Cal.2d province (cid:127)within the judiciary 3, 9, 82 P.2d 118 A.L.R. 485. strike unwise;5 down such laws as only Court’s inquiry process under due or attempted Plaintiffs have not to shoulder equal protection is whether the measures the burden of the unreasonable establishing arbitrary and, either discriminatory legislation. Instead, ness of giving a vitality presumption realistic to the entirely rested their case on the 1949 deci- of constitutionality, the authorities hold sion of this Court. This is insufficient that, any if state of facts imagined can be holding sanction a that the 1964 Act is in- from which a may conclusion be drawn presumption valid for the of constitutionali- that there is a reasonable relation between ty of a police statute enacted under the the measure public good and the or econom- power presumption;4 a real it is not ic condition of sought the business just to be legal principle casually to be stated regulated, promptly disregarded the Court authority is without discarded application. many authorities cited invalidate legislation.6 (2d) 4. 16 States, Am.Jur. 197, Constitutional Law Sec v. United 193 U.S. 24 S.Ct. 142, p. police measures, 436, tion 679; 342: “As 48 L.Ed. Louisiana Whole- presumed legislature it must be Rosenzweig, sale Distributors Ass’n v. carefully investigated 1, has 403; and determined 214 La. 36 So.2d 16 Am.Jur. public require (2d) 163, p. 371; the interests See. Black on Consti- legislation, Law, p. the courts are re tutional 4th Ed. 426. good (2d)- luctant to attribute Law, want of faith 6. 16 Am.Jur. Constitutional Sec power.” Citing 143, p. the exercise of the tion : 343 Black on Constitutional * * * Dyson, 382, Law, p. Durand v. (“ 271 Ill. 111 N.E. 4th Ed. 424 a statute 143; O’Hara, 519, Stettler v. 69 Or. attributable must be 743, L.R.A.1917C, 944, P. affd. 243 U.S. sustained if state facts can rea 629, 475, (a sonably 37 S.Ct. 61 L.Ed. conceived, com presumed, or even upon by leg mon justify it.”); belief City acted which would of Sheve police pow port islature in the Cunningham, 481, exercise of the v. 182 So. proof existence); 649; er without of its Alabama State Federation of Labor Cemetery Gamage McAdory, Masonic Asso. 450, 1384, 325 U.S. 65 S.Ct. (CA9) 1027, 950, 1725; 38 F.2d 71 A.L.R. cert. 89 L.Ed. Rast v. Van Deman & 852, 30, den. Co., 342, 370, U.S. L. S.Ct. Lewis 240 U.S. 36 S.Ct. Ed. 374, L.R.A.1917A, 60 L.Ed. People York, 5. Nebbia v. Ann.Cas.1917B, “(It State of New is established 291 U.S. legislation 54 S.Ct. 78 L.Ed. that a distinction in not ar- 1469; 89 A.L.R. Northern Securities Co. 185 186 this,

Apart however, eventually monopolize if it be as- that the latter would in package sumed that the economic conditions sale distribution of intoxicants distribution this fixing business in the State7 that such today— regulation were the same in as not real does have a relation to is, that that there was a considerable dis- the economic and welfare of the parity prices people. because of the method of (purchase at and resale wholesale price- regulatory Our 1949 that decision directly consumer) employed fixing for the distribution at wholesale plaintiffs and other cut-rate establishments intoxicating liquors appears retail of to be (it original opinion is shown our prior in conflict rationale our Schwegmann high has had as retail sales 214, case, decisions in the Parker 190 La. $5,000,000 year per Reynolds high as as 485, constitutionality upholding 182 So. $2,000,000) at then our 1949 decision is in- price-fixing regu- of hair cuts under a For, correct and should be followed. trade; latory Pepsodent law for the barber surely, given when due consideration Ltd., Co. 959, v. Krauss Co. 200 La. 9 So. the almost unlimited Legis- 303, price-fixing marketing 2d for regulate lature to the distribution of in- goods; Rosenzweig trademark or brand toxicating liquor, hardly it can be said case, 1, 403, providing La. 36 So.2d provide it is unreasonable for it to markups over cost sale of all on the 6%

minimum sale the small so commodities and our later decision in the corner compete retailer is able to with the case, 606, larger super-market McCrory 768, 237 La. 112 So.2d and other cut-rate dis- tributors, possibility and thus reduce the involving price-fixing for the sale of milk. bitrary, reasonably Super McCrory, (Or if state of facts Bros. Giant derly Mkts. v. it, Marketing can Act, be conceived that would sustain Milk Act 193 1958, seq.) 768, and tlie existence of that of facts state R.S. 40:940.1 et La. at the time the law was enacted must 112 So.2d 606. assumed.”) following price- Schwegmann Super

Note that cases Mkts. 7. Bros. Giant fixing Legisla 606, McCrory, 768, enacted statutes 237 La. 112 So.2d upheld by provisions ture have been this Court: this of Act 193 Court held the Marketing Act) (Orderly Board of Barber Examiners of Louisiana Milk (Act 1936, relying upon constitutional, Parker 48 of R.S. 37:411 Louisiana seq.) 485; Pep 214, et 190 La. 182 So. Distributors v. Rosen- Wholesale Ass’n Ltd., (Fair zweig, supra, sodent Co. v. Krauss Co. : “[I]n it is stated Act, adopting Trade 13 of 51:391 R.S. Act state’s Sales Unfair seq.) 303; protection et Lou 200 La. 9 So.2d of our struc- economic prevent perpet- isiana Ass’n v. Wholesale Distributors ture and to the creation Rosenzweig (Unfair Act, monopolies, legislature Act 338 uation Sales seq.) amended, acting police power.” 51:421 et R.S. well within its page page 214 La. 36 So.2d 403 and 36 So.2d at

Likewise, law, appears that validity that decision of the 1948 had real ef- practically holding ficacy given presumption alone its that been to the stands applied for, to legislation, constitutionality, when from those facts price-fixing liquors, no real intoxicating many readily has situations could have been sales An exami- public interest.8 conceived from which it could have been relation 148, 43 (see holding 216 of the concluded that there nation was real and sub- disclose 248, will 680) liquor price- 14 A.L.R.2d stantial relation between the prin- recognizing Court, fixing regulation social, after that and the economic pre- ciple Legislature that act of an welfare. judiciary is legal and that the

sumed to be ruling Our 1949 cited has been to courts unconstitu- right declare law without jurisdictions of other on more than one oc- manifest, actually em- tional unless this is casion but has never been And followed.9 plac- presumption in reverse and ployed the at (see least one court of last Dun- resort relation- proving reasonable ed the onus of Liquor dalk Co. Md. (1953) v. Tawes 201 public the measure and ship between 58, 560) 92 A.2d and a constitutional law agency. upon the defendant welfare writer10 noticed have the failure of our by the defendant the facts adduced Under give pre- decision to force and effect to the case, have been an Board in that it would upheld easy sumption constitutionality matter for the Court to recog- and to Ark., kansas—GipsonMorley, Dept. iu v. 217 Dave’s Market Inc. v. of Al 8. Ar 79; 560, Control, Cal.App.2d 671, S.W.2d Connecticut coholic Bev. 222 233 Kelly, 176, Cal.Rptr. requir 99 35 v. 140 Conn. 348 that a statute —Schwartz 891, ing 99, app. 346 74 intoxicants to be sold fair trade A.2d dismissed U.S. 227, 394; police Beckanstin v. was within S.Ct. Liquor 98 L.Ed. Comm., 185, process provision Control 140 Conn. 99 invalid under due 119; Simons, delegation Kentucky price-reg nor A.2d v. as unlawful — Reeves Ky. 149; ulating powers private 792, persons. 160 S.W.2d Mas Rhode 289 Liquor Supreme Mart, Malt Products Co. Island — Nocera Inc. Bros. sachusetts — Comm., Liquor Beverages Hearing Board, v. v. R.I. 186, Control Alcoholic Control 775; Maryland 59, 334 Mass. 133 N.E.2d 100 A.2d 652. Liquor Tawes, Liquor (1953) 9. 201 Md. See Dundalk —Dundalk Co. v. v.Co. Tawes Jersey 5S, 560; 58, 560; 201 Md. 92 A.2d New A.2d Blackman v. — Butler Liquor (1952) Oak Tavern v. Division of Alcoholic Bev. Board of Control 95 Ohio Con., 24; 373, App. App. 177, 893, 20 N.J. 120 A.2d Gaine 113 N.E.2d dismissed Burnett, 37; 39, 368, 475; 122 N.J.L. 4 A.2d 158 Ohio St. 109 N.E.2d Allied Winery Pompei Properties Equalization (Cal. Inc. v. Board of v. Board of Ohio — Liquor Control, 61, App.1959) 1013, 167 Ohio St. 146 N.E. 338 P.2d affirmed 53 430; Liquor 2d Blackman v. Board of Cal.2d 346 P.2d 737. Control, App. 177, 95 Ohio N.E.2d See Comment the late A. Charles app. Reynard, Law, dismissed 158 Ohio St. Associate Professor of ; Properties University, N.E.2d 475 California — Allied Louisiana State in Vol. Dept. Beverage Control, Review, of Alcoholic Louisiana Law 197-203. Cal.2d 346 P.2d 737. held showing argue that, interest and the lack of effect of this clear nize absence social, sought legislation upon the moral eco- the end act could not serve only referring welfare, ulterior nomic to that and could cover be attained segment people purchase in- province objects proponents, is the who liquors consump- toxicating for their own Legislature to determine the neces- Evidently, regard tion. mem- whether counsel those sity measure and accomplish bers of the neither in- who imbibe or not the means used purchasers toxicants nor those who are not proper. object of the law (which daresay packaged liquors I com- profess Next, plaintiffs’ that our counsel prise appreciable peo- an segment our promotes temper- price-fixing holding “pub- ple) are ambit of the not within the they say higher is not ance sound by the no lic” embraced statute need liquor prices the de- do not tend lessen protection regulatory But laws. premise, mands of consumer. From people do an interest to serve those present is sim- it concluded that the law is things, in Legislature, and the nature of the subsidy liquor ply dealer. a for the small right duty their well has and to consider being it cannot be doubted that ex- the the The correctness of assertion that —for consumption intoxicating liquor cessive of prices liquor higher intoxicating for does adversely moral, is, tends to the social promote temperance say affect tend to to large. people welfare of the I it mani- least, the debatable. For think any may price liquor fest that hike in of Finally, plaintiffs complain the purchase and ulti- act as a deterrent to its hearing first Court failed to consider on Here, consumption degree. mate to some petitions that Act 290 charge the in their judging again, in the reasonableness Article of 1964 violative of Section was consider legislation the' should not Court Constitution, as Article of as well the mark-ups temperance amount of the the 2 thereof and the Fourteenth Section this, course, relates to produce will for Constitu- Amendment to the United States pro- employed to of the means the wisdom tion, unlawfully delegates rights it doubling may be or temperance; mote fix powers producers to certain to price would retail tripling of the minimum prices certain criminal conduct and define consumption but this is much less effect provisions of stat- punishable the the under legislative discretion a matter of purely ute. concerned. courts are not which the

with claim, their are mistaken Plaintiffs opinion con- that, original did consider the as the Furthermore, when it obvious seems delegation legisla- speak tention of unlawful plaintiffs the for counsel respec- apply without to wholesalers retailers it to be merit. power and found tive tively. attempting Legislature The is not not discuss the Court did is true that fix, power it so if it saw the fact to as had to do this was due to charge in but detail fit, purchase price paid to be by plaintiffs’ coun- it not briefed that was it during producer; or retailer to the wholesaler only casually mentioned sel only markup fixed the minimum that must argument. first charged by be the wholesaler and retailer rate, any careful At examination essence, legislative their In above cost. no Legislature plaintiffs’ contention anyone. power delegated is to producer the intoxi- delegated to the has conclusion, price, objectionable the however power fix the cating to fixing Legislature act of the a minimum requires the wholesaler because the price intoxicating liquors may to markup a minimum sale to add and retailer seller, purchaser great liquor, they pay however price cost may disapproval cost be the act a ma- patently The it to untenable. shows jority unpopular re- people, retailer however to the wholesaler may be, of sale. the act contract the enforcement of from a commutative sults regard this act producer not fix the fact remains that does contract, only parties the Court’s function to determine who are not those legal. Tichenor A. I be- in Dr. G. H. whether constitutional and as was the case Mkts., Court, prop- hearing, lieve that on first Schwegmann Bros. G. S. Co. v. statute, erly dealing held that the 51, 90 343 where we concluded that unconstitutionally delegat- Legislature distribution a commodi- had it does producer ty power Legislature has the ad- ed its to fix over which the pur- subsequent power attempted plenary regulate to bind when mitted scope commodity clearly re- prohibit, to conditions within the chasers even lating contained con- and did not the resale violate plain- right vouchsafed to par- constitutional they tracts of sale to were judicial function to strike tiffs. It is not a ty. by plaintiffs on The other cases cited If unpopular. is because it down law point inapposite. are likewise objectionable provisions of the act are delegation Furthermore, no State, redress people their of this the manufacturer given to whatever is repeal repeal by Legislature, to seek markups; been relation to the judicial function. legislative not a The mark- Legislature itself. fixed respectfully dissent. I percentage the cost ups are a fixed

Case Details

Case Name: Reynolds v. Louisiana Board of Alcoholic Beverage Control

Court Name: Supreme Court of Louisiana

Date Published: Apr 1, 1966

Citation: 185 So. 2d 794

Docket Number: 47788, 47820, 47821

Court Abbreviation: La.