The opinion
SUMMERS, Justice
(dissenting).
I find no distinction between the intent, purpose and effect of Act 360 of 1948, which was declared unconstitutional by this court in 1949 (Schwegmann Brothers v. La. Board of Alcoholic Beverage Control, 216 La. 148 , 43 So.2d 248 , 14 A.L.R.2d 680 ), and the intent, purpose and effect of Act 290 of 1964 presently under consideration. The distinctions relied upon by the majority to avoid the compelling precedent of the first Schwegmann case are inconsequential and unimportant differences which have no relation to the underlying effect of the two acts; whereas the basic similarities in the acts upon which the constitutional issue turned in the first Schwegmann case are indisputable. What was intended to be accomplished in each act and what was in fact accomplished by the language of the enactment was a mandatory minimum mark-up of liquor prices.
The majority’s unsuccessful effort to distinguish the two acts presents in bold relief its disregard for the integrity of this court’s own decisions on an important constitutional question. This decision strikes a telling blow against the stability of law in this State and undermines immeasurably in law the prestige of this court.
*167 Moreover, aside from the striking similarity of the two acts, which in itself should be sufficient to compel adherence to the first Schwegmann case, there is no justification otherwise, either factually or legally, to sustain the constitutionality of the 1964 act.
There is little pretense that the State has brought its police power to bear for the good of the public generally. It seems to be conceded that this regulation is invoked for the protection of the liquor industry which must be recognized as a very small segment of the general public. On the other hand, the rise in the price of liquor which is a consequence of this enactment undoubtedly adversely affects the public at large. It is apparent, then, to any fair-minded observer that the real object of this act is not to protect the public generally or to promote the general well-being, but, under the guise of police regulation, to interfere unduly with the fundamental rights of those opposing this act and to favor a small segment of the public — a part of a particular business — over the public generally. The result is to deprive those opposing the act of their liberty and property without due process of law.
It is said that temperance in the consumption of alcoholic beverages results from this enactment and the public good is served thereby. To begin with there is no evidence to support such a finding. On the contrary, my view of the record convinces me that the facts are otherwise, for there is no showing that the tendency for the volume of liquor sales to increase, which has prevailed for many years without interruption, has abated. ' An increase in the volume of liquor sales is difficult to associate with temperance in the consumption of liquor. Temperance being the only avowed benefit to the public generally and no temperance having resulted, and as none will result from such a small increase in the price of liquor (SO cents to $1.00 per fifth), it is clear that this enactment is not for the public good on the basis of temperance. This being so there is no established or discernible basis for invoking the police power of the State and curtailing the fundamental rights of citizens.
For it is the right of every citizen under the constitutional guarantees of life, liberty, the right to acquire, hold and dispose of property, and the pursuit of happiness to engage in lawful occupations without unwarranted interference by the government. This right must be protected against arbitrary interference by the State, and the legislature may not, unless the general public good requires it, impose unreasonable and unnecessary restrictions on private business.
The free enterprise and competitive systems of business which are protected by these principles will suffer much from today’s decision.
I respectfully dissent.