The opinion
Donworth, J.
(dissenting)—In my opinion, this court should not be concerned with the legislative problem of whether or not the “nonsigner” provision of the fair trade act now cures an economic evil which should be curbed under the police power of the state. It is for the legislature, not the court, to declare the public policy of this state in such matters.
In 1937, the legislature determined this matter of policy, and, in 1941, this court upheld the validity of its action as being within the police power.
What we said in State v. Sears, 4 Wn. (2d) 200, 103 P. (2d) 337 (1940), with respect to the constitutionality of the unfair practices act is equally applicable to the “nonsigner” provision of the fair trade act now before us:
“We may or may not agree with the economic philosophy of the unfair practices act, but it is no part of the duty of this court to determine whether the policy embodied in a statute is wise or unwise. It is primarily a legislative, and not a judicial, function to determine economic policy. If it be the declared legislative policy to curb unrestrained and harmful competition, by measures which are not arbitrary or discriminatory, it is not for us to say the rule is unwise. With the wisdom of the policy adopted, with the adequacy or practicability of the law to enforce it, the courts are both incompetent and unauthorized to deal.”
Having held in 1941, in Sears v. Western Thrift Stores of Olympia, Inc., 10 Wn. (2d) 372, 116 P. (2d) 756 (1941), that the “nonsigner” provision was within the police power, I *24 think that we should not now declare that statute to be invalid simply because, upon a re-examination of our former decision, it now appears to a majority of the court that that provision is not a reasonable exercise of the police power and that it is detrimental to the best interests of the people. Although our conception of what is for the public good may differ from that of the legislature, it is not within our province to determine such matters of legislative policy.
Furthermore, the scope of police power should not change with the personnel of the court. The portion of our decision in State ex rel. Banker v. Clausen, 142 Wash. 450 , 253 Pac. 805 (1927) (quoted near the close of Judge Hunter’s dissenting opinion), relating to the need for consistency and uniformity in constitutional interpretation by the courts, is, in my opinion, applicable to the present case.
I would adhere to our decision in the Sears case and affirm the judgment of the trial court.
Finley and Ott, JJ., concur with Donworth, J.