The opinion
LUSK, J.,
specially concurring.
I concur in the result of the court’s opinion, and will briefly state my views as to the ground upon which I think the decision should be based.
Since the case of Nebbia v. New York, 291 US 502 , 78 L ed 940, 54 S Ct 505 , 89 ALR 1469 , it has not been open to question that legislative price fixing is not a violation of the Due Process Clause of the Federal Constitution unless it is unreasonable or arbitrary. That case established the constitutionality of the Milk Control Law of the state of New York under which a board governed by appropriate standards was authorized to fix minimum and maximum prices for milk. It was contended that a law which attempted to control prices in a private business was a violation of due process. The court, in an elaborate opinion by Mr. Justice Roberts, rejected the contention and specifically refused to yield to the argument that such legislation could be sustained only with relation to “businesses affected with a public interest,” that is to say, “such as is commonly called a public utility; or a busi *334 ness in its nature a monopoly.” The court concluded its discussion of the question by saying:
“* * * The Constitution does not secure to anyone liberty to conduct his business in such fashion as to inflict injury upon the public at large, or upon any substantial group of the people. Price control, like any other form of regulation, is unconstitutional only if arbitrary, discriminatory, or demonstrably irrelevant to the policy the legislature is free to adopt, and hence an unnecessary and unwarranted interference with individual liberty.” 291 US at pp 538, 539.
In Savage v. Martin, 161 Or 660 , 91 P2d 273 , this court followed the decision in the Nebbia case.
If, therefore, the only objection to the Pair Trade Act were that it is a price-fixing measure, I should be inclined to hold, if it were necessary to reach the question, that the court could not say that “it is demonstrably irrelevant to the policy the legislature is free to adopt,” and, therefore, that it does not violate due process.
I have no doubt whatever that the Maguire Act, 15 USCA (’55 P P) § 45, supplied the defect in the MillerTydings Act (15 USCA § 1) with respect to nonsigners pointed out in Schwegmann Brothers v. Calvert Distillers Corp., 341 US 384 , 95 L ed 1035, 71 S Ct 745 , 19 ALR2d 1119, and, therefore, that the provisions of the Oregon Pair Trade Act are no longer in conflict with the Sherman Act so far as nonsigners are concerned. But the question remains whether the Act, as applied to nonsigners, constitutes an unlawful delegation of legislative authority to private individuals. I agree with the conclusion in the opinion of Mr. Justice Tooze that it does and that in that respect the law is unconstitutional.
*335 This view, it would seem, is in conflict with what was decided by the Supreme Court of the United States in Old Dearborn Distributing Co. v. Seagram Distillers Corp., 299 US 183 , 81 L ed 109, 57 S Ct 139 , in which the Pair Trade Act of Illinois was sustained. The objection of unlawful delegation of legislative authority to private individuals was considered in that case and disposed of by stating that voluntary acquisition of the property by nonsigners “carried with it, upon every principle of fair dealing, assent to the protective restriction.” 299 US at pp 193, 194. But the Schwegmann case, although it dealt with the construction of the Miller-Tydings Act, not its constitutionality, nevertheless has cut the ground from under the Old Dearborn case by holding that when a distributor and one or more retailers seek to impose price fixing on persons who have not contracted or agreed to the scheme, “that is price fixing by compulsion” ( 341 US at p 388 ), and by characterizing legislation authorizing such conduct as “blanketing a state with resale price fixing if only one retailer wanted it” ( 341 US at p 390 ), and “a program whereby recalcitrants are dragged in by the heels and compelled to submit to price fixing.” Id. See, also, Lambert Pharmacal Co. v. Roberts Bros., 192 Or 23 , 233 P2d 258 .
The vigorous language of Mr. Justice Douglas which we have quoted from the Schwegmann opinion was used for the purpose of demonstrating that the provisions of State Pair Trade Acts, which attempted to bring nonsigners within the sweep of the law, had not been sanctioned by the Miller-Tydings Act. This language accurately described such provisions as compulsory price fixing and discarded the implied-assent theory of the Old Dearborn case without mentioning that case by name. At the same time it undermined the *336 authority of Old Dearborn upon the question of unlawful delegation of legislative authority.
It is, of course, obvious that the provisions in question do not mean something different now from what they meant when the Schwegmann case was decided. The Maguire Act has not changed their meaning, but has only given them congressional sanction with respect to the Sherman Act. They were compulsory price-fixing provisions when the Schwegmann opinion was written, and they are still compulsory price-fixing provisions.
It, therefore, appears that the Oregon Fair Trade Act has attempted to vest in a distributor in combination with one or more retailers the authority to fix the resale price of certain commodities. The fact that the commodities are identified by a trade-mark, brand, or the name of the owner or distributor, is irrelevant to the present question. It is none the less price fixing, determined not by the legislature itself, nor by a board or commission acting under legislative authority, but by private individuals. Such a provision is as fully obnoxious to the Oregon Constitution (Art I, § 21; Art III, § 1; Art IV, § 1) as the law establishing minimum prices for barber services which we struck down in La Forge v. Ellis, 175 Or 545 , 174 P2d 844 , and the law authorizing private individuals to fix the price of agricultural products held unconstitutional in Van Winkle v. Fred Meyer, Inc., 151 Or 455 , 49 P2d 1140 .
It is on this ground alone that I concur in the opinion of the court.
The Chief Justice and Mr. Justice Brand join in the foregoing opinion.