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alcoholic are liquors arbitrary, unduly vague, constitute deprivation private property violation of the Four- teenth Amendment to the United States Constitution and 1, Article Section of the South Carolina Constitution.

We have construed Section as 4-91 prohibiting pos session of alcoholic for sale liquors without a license. It therefore constitutes legislation by the General Assembly relative a subject mentioned in specifically Ar- ticle is, supra, the sale and retail of alcoholic Since this is liquors. true, we need not further pursue constitutional raised; questions for the plaintiff concedes that properly “a law re- specifically prohibiting sales, or sales the drink of lawfully alcoholic acquired its beverages barring ‘possession’ establishments where such sales occur would seem to be within” clearly of the General power Assembly. of the lower court is judgment reversed. accordingly

Moss, J., C. JJ., Littlejohn, and Brailsford concur. did not J., participate.

Bussey, FAIR, Bi-Lo, Inc., RICHBOURG’S SHOPPERS INC. and Appel lants, STONE, Eugene Hanckel, v. Mills, E. R. M. Fred T. C. G. Cushman, Amick, H. George Steer, Ciremba Tupper, L. R. L. Mrs. Lambright, J. Allen Hampton Caughman Harrelson, S. and W. L. composing Commission, the South Carolina Dairy State Re spondents. (153 (2d) S. E. 895) *2 Vandiver, E. Watkins, Vandiver, Robert Kirven Esq., Anderson, & Long, appellants, for McLeod, General, Messrs. Daniel R. Attorney L. Grady Patterson, Jr., General, Attorney Thomas Assistant. McCutchen, Columbia, all of E. respondents, *3 Columbia, Robinson, Moore, Messrs. McFadden & for Greenville, Curiae, Winn-Dixie Inc. as Amicus Columbia, Messrs. Lourie & King, Farm Bureau for Curiae, as Amicus West, H.

Messrs. Murchison & W. C. Furman and Holland, Camden, Kenneth L. Carolina Coun- South al, Producers, et Milk as Amicus Incorporated, cil of Curiae,

March 1967.

Lionel K. Associate Acting Legge, Justice. defendants,

Plaintiffs this action enjoin sought Commission, who the South Carolina State compose Dairy Act from of Section 5 of No. 297 enforcing provisions Acts of the that General Assembly, alleging answer, said section was unconstitutional. In their the de- not real fendants were alleged: (1) plaintiffs in interest therefore had main- no' standing parties action; that the was tain and (2) challenged legislation constitutional and for the unfair necessary prevention trade practices monopolies. as Rice, Earle M. to whom Special

The Plonorable referred, found that Referee the cause was plaintiffs interest, concluded that challenged were real parties unconstitutional, and recommended that was legislation from its the defendants be enjoined enforcing provisions. *4 decree his report From a Circuit Court overruling the have the dismissing complaint plaintiffs appealed. the on May

Act No. 297 was Governor by approved 5 reads as follows: 1965. Section 32-1640.5 of the Code “Section 5. Section in the entire section and inserting amended by striking lieu thereof following:

“ ‘Section 32-1640.5. No store shall either (1) directly sell, or advertise or offer for indirectly sale brand of milk any or milk for less than the product at which all price compet- brands offered for ing sold, sale such store by are advertised or sale, offered for or discriminate in the any terms way or conditions of sale any brands of milk against competing and milk store; offered for sale such products by provided, however, difference in the any unit at which price competing brands of milk sold, and milk are advertised or products offered for sale a store which by difference represents between the minimum wholesale unit established the Commission and net unit cost to such any store higher of such shall not constitute a product violation of this section. for, No store shall

“(2) purchase to or other- consign wise make available covered any products this article to another store for or of with the purpose intent or effect such store in a violation of this aiding abetting article or for the such store in purpose aiding an circumventing order issued the Commission pursuant provisions ” of this article.’ Fair, Inc. Richbourg’s Shoppers owns and plaintiff a retail in Anderson operates supermarket County; Bi-Lo, Inc. owns and several plaintiff operates supermarkets Anderson, and Greenville Spartanburg Counties. On the effective of the date 1965 Act and for a substantial period time thereto both prior were plaintiffs at retail selling one or general public more brands of A Grade milk at a lower than that prices them charged by brands, other which, as the merchandising policy com- —a desired and plaint alleges, they desire to continue. Shortly after of the Act passage Commission officially notified them of its enactment and warned them that it would take action in the event of appropriate violation any provisions Section 5 on or after occurring June 8, 1965. Plaintiffs instituted this suit. thereupon

283 three questions: The appeal presents the real in interest? 1. Are appellants parties Is of Act No. 297 constitutional? 2. the necessary Is of its

3. enforcement provisions ? and monopolies unfair trade prevention practices with We discussion of the first of these preface questions milk brief sketch of system industry the marketing on both sides. in as disclosed the evidence by South Carolina distributor, the The farmer sells to dairy (producer) the delivers it to who and milk and processes packages di- are made distributor by retailer. deliveries (Some consumer, the evidence indicates to the ultimate but rectly economical from such is less delivery house-to-house to the than delivery quantity standpoint the distributor’s over the counter sells The retailer course retail outlet.) public. general follows: is classified as Milk in bottles I, is sold public that which general

Class cartons; milk; skim II, buttermilk and Class III, to the consumer has not been sold that which Class be sold to II, I or which must therefore Class as Class manufacturers. Referee the Special the time of the before hearing

At to the were: the prices, producer I, cwt.

For Class per $6.60 II, cwt.

For Class per $5.00 III, cwt. per

For Class $3.00 and retailer between distributor The usual agreement as follows: to the retailer daily milk is delivered (Class I) 1. be sold by estimate will as they such quantity within four days. retailer retailer are marked containers so delivered to the

2. The date indicating a code symbol the distributor with of such delivery.

In3. order to insure maximum freshness at the time of sale retailer, distributor, upon making delivery retailer, the milk picks up shown the code symbol to have been in the hands of the retailer for four days, it with milk of replaces immediate The milk freshness. *6 thus is resold the repossessed by distributor ato manufac- turer, such as Borden & as Class III. Company,

4. Milk delivered the by distributor to the retailer is in- as voiced of the date of and is for delivery on paid delivery or at such as the periods parties may have agreed upon.

5. of Payment the distributor to the is made at producer the end of each month on the basis of the ultimate disposi- tion of milk sold the distributor by that month. The during thus to the is the price paid producer “blend”, or average, calculated the of milk sold upon percentage ultimately the distributor in by each of the three classes before men- tioned.

In of its claim that the support are appellants not real interest the parties Commission contends that because of the between distributor arrangement retailer milk unsold at the end whereby of the four-day milk is the remains the replaced, period property the sold until it is a retailer to a actually by customer. producer note, that with to (We parenthetically, regard Richbourg’s brand” there was no between distributor “private agreement milk, for and retailer unsold a replacement matter which in our consideration of the issues here involved we deem of no In our are real consequence.) opinion appellants in interest and the Circuit Court’s parties contrary ruling erroneous, was reasons: following 1. transactions of were with their Appellants’ purchase distributors, not with latters’ producers.

2. The transactions between and their dis- appellants manner, tributors no restrictions imposed upon right, or of sale to their customers. by appellants prices Title from distributors to the 3. appellants passed sales and the terms of the invoices express accompanying them. on both sides that

4. The uncontradicted evidence shows to bear alone would have had loss any resulting appellants of, to, fire, or the milk theft from destruction damage to its them. delivery or after casualty occurring contract return to 5. of sale or title passes Under to in the seller in the event purchaser subject revesting con- of the accordance with terms return goods 484, 482, 481, Sales, 480, Jur., tract. 46 Am. Sections 647-651. pp. enforced, It is the be

6. to right sought ownership rather than absolute of specific ownership property, S., real in interest. Cf. 67 C. one as a qualifies party J. Parties, Parties, 913; 30 Am. Jur., pp. § milk is not Here the issue involved title 859. p. it sold not the distributors who challenged by (which sold to consumer whom any appellants appellants sell it at such price but the right it), appellants choose. as prices they *7 Commission,

7. The warned officially appellants having of result that their violation Section 5 would in “appropriate Commission, contend the is in no to position action” by of no interest in the issue have that justiciable appellants of of punitive that section. constitutionality (The power 11 of Title 32 of the 1962 the under Chapter Commission 32-1640.6, the the to order includes, power Section Code to to discontinue selling retailer’s distributors offending him.) in the issue or validity invalidity interest

Appellants’ as real 5 of the 1965 Act them parties qualifies the of Section 10-207 of the within meaning interest 1962 Code. 1953, 279, 27, 48 Stat. at L. Act of April

The a from the Com- permit created the Commission required to of milk into as a the importation mission prerequisite to It the Commission power inspect South gave Carolina. milk. It receiving expressly distributing plants processing, of milk. from the controlling the Commission prohibited 286 11, Act of 1955, May 496, 49 Stat. at L. reciting

legislative as to findings the food value and the perishable of milk, nature the need for sanitary the precautions, eco nomic importance the milk and the industry Commission’s to inability wars, milk prevent gave Commission power supervise regulate “entire Grade A milk industry”, after including power, a public hearing, fix the wholesale and retail of milk. In prices v. Gwynette 17, 237 Myers, S. C. 673, 115 S. E. (2d) provision at the retail level was price-fixing held unconstitutional. The Act of 15, 1961, May 52 Stat. at L. reciting that supervision and of the milk regulation with industry to sales respect below cost was needed in order to its prevent economic destruction and to free preserve competition, pro- vided that no store should milk sell below cost for the purpose unfairly trade from a diverting competitor, lessening competition, creating monopoly, disrupting milk, orderly marketing empowered Com- mission to fix minimum to be prices paid In producers. Stone v. Salley, S. C. E. S. (2d) provision Commission to fix empowering minimum retail was held unconstitutional. prices

We are aware of the fully and of importance, nature, of the milk unique industry. It well be that some of its stem from a problems marketing which, noted, under as before system the dairy farmer has to bear the full loss occasioned the transition from Class I to III of so much of Class his as has product not been sold at retail within the allotted of four period days, whereas the distributor is substantially, the retailer in- wholly, *8 sulated risk of such loss. Other against factors that obviously tend to increase the I may of Class milk that ends percentage in its career Class III are overproduction, overpurchasing distributor, and at the retail level. But overstocking it not our function in the case at bar to determine the cause of those or to problems a attempt prescribe remedy need them. Nor we determine whether the loss-leader

287 of the policy affects the appellants of economy the industry adversely or at favorably all. The issue here is “May the State at regulate which milk be sold at retail?” That issue is the same as substantially that which was in adjudicated v. Gwynette Myers and in Stone v. and

Salley; the decisions in those cases are here. controlling The fact that in each of them the court was divided does not lessen their validity them from the rule of stare except decisis. Florence City 469, v. 62 S. C. 40 E. Berry, S. of 871; Works, Sellers v. Home Fertilizer Chemical 76 S. C. 978; 56 S. E. American Co. Scotland v. Mortgage Woodward, 83 739; Lenhardt, S. C. 65 E.S. Tate v. 110 720; Hunnicutt, S. C. E. 96 S. Alexander v. 364, 13

S. C. S. 630. E. (2d) Our conclusion that Section 5 of the Act is uncon- stitutional renders discussion of the unnecessary third ques- tion hereinbefore stated. Concern for the economic welfare of an cannot create that industry legislature power is denied it the Constitution.

Reversed.

Moss, and J.,C. Lewis J., concur. Bussey and JJ., dissent. Brailsford, Bussey, (dissenting). Justice

While some of the admittedly of the language opinions and Stone cases Gwynette be might persuasive result reached I by Mr. am of the view that Legge, Justice those decisions are distinguishable, factually legally, and, hence, not Those cases here. decided that controlling fix the State could not the minimum at constitutionally assumed, the retailer could sell milk. The court which factu- the milk had in each case that been purchased by ally, at a either fixed the State or retailer wholesale price, distributor, satisfactory producer otherwise such milk was the absolute retailer. property them, As I understand foundation each those de- that “One’s cisions was proposition ownership prop- *9 it, not of his to but also consists erty only right possess his he to sell it his to use it as at own right pleases, he do so.” and to it if wishes to away give in While is case that some small it shown the instant is amount of milk and owned outright actually purchased it is the vast of fresh retailers, majority clear that by does so milk that reaches the general public through in the of Mr. detailed marketing arrangement opinion Under this even arrangement, though Legge. Justice retailer, be it obvious title to the milk in the is legal quite that, court, held as found and the lower producer a bene- under such still have arrangement and distributor in the milk while in the hands ficial and economic interest therefore, retailer, is, not the absolute and the milk retailer. of the property not seek

The here under attack does statutory provision maximum, fix either for which minimum any price, fix sell milk. He is left free to a retailer may absolutely he desire on milk which he owns. really any price construed, all the seeks to do is to a Fairly law prevent milk, on a retailer from brand putting higher interest, which he has little economic than comparatively brand, he does other whether owned by on some competing brand not, him or out of the market the thereby price course, retailer, does milk discriminated against. dis- milk which he seeks to not have to the brand of accept it for but he does sale accept public, criminate against, it, and, it, contingent upon reality, accepts pays its sale to the public. reasons, I conclude

For the stated foregoing briefly from our prior is distinguishable the instant case soundly exercise statute attack is a decisions; that the under proper state, on no con- of the infringes police power stitutional rights appellants. view, is to be held uncon-

If, the law contrary my that the court should stitutional, I squarely strongly suggest meet and decide a here, contention made which not was in either passed upon Gwynette Stone. It contended the State that statute is authorized expressly IX, Article of the Constitution which provides, alia, inter that “The General shall enact Assembly laws to *10 trusts, combinations, all contracts prevent and agreements welfare;”. against public view of

My the case would make it to reach unnecessary or decide this I not, therefore, shall question, discuss do, however, it at I make these observations. The length. constitutional is that the General “shall language Assembly * * enact laws to McMaster, In Henderson v. prevent said, 104 S. C. 88 S. E. the court “The Constitution (article 13) requires Legisla- § ture enact laws to prevent agreements against public welfare. The must Legislature determine what primarily are welfare.” agreements against public The conclusion of the General Assembly and the lower court that the statute here was essential in the interest of welfare, eventual con- prevent public monopolistic fresh, trol of the fluid milk available to the citizens supply of South Carolina not without certainly evidentiary support.

Brailsford, J., concurs. Bishop, Appellants, D. BISHOP Enos O. v. C. Garland TOL- BERT, Timmons, Lee T. Respondents Alice Brockman R.W.

(153 (2d) 912) S. E.