Legge, Justice.
The State Dairy Commission, having issued an order declaring the Greenville-Spartanburg market area a “con[21]*21trolled market” and fixing minimum prices to be charged for milk by producers, distributors and retailers in that area, brought this action to enjoin the defendant, a retail grocer of Greenville County, from selling Grade A milk at a price below that so fixed. It appeals from a judgment of the Greenville County Court sustaining a demurrer to its complaint.
The Act of April 27, 1953 (48 Stat. at L. 279), as its preamble shows, was designed to prevent milk of inferior quality being brought into South Carolina from other states during periods of short production of local milk. It divided the state into three zones and provided for the creation of a nine-member State Dairy Commission constituted as follows : one producer from each zone, to be appointed by the Governor from two nominated by the producers in that zone; one distributor from each zone, owning and operating there a milk processing and distributing plant, to be appointed by the Governor from two nominated by the distributors in that zone; two “consumers” appointed by the Governor; and the Commissioner of Agriculture. It forbade the importation of milk into this state for fluid distribution without a permit from the Commission; and it authorized the Commission to make rules and prescribe sanitary standards to be complied with before shipment of milk into this state, “in order to protect the health of the people of South Carolina by guaranteeing a pure supply of milk.” Section 10 declared that “nothing contained in this act shall be construed as giving the State Dairy Commission the power to fix, prescribe or control the price or classification of milk or dairy products produced in the State of South Carolina.”
The Act of May 11, 1955 (49 Stat. at L. 496) broadened the scope of the Commission’s functions and vastly increased its power, giving to it “the authority to supervise and regulate the entire Grade-A milk industry of the State of South Carolina including the production, purchase, transportation, handling, consignment, processing, manufacture, storage, [22]*22distribution, bailment, delivery, disposal and sale of milk, cream and milk products in any marketing area in the State of South Carolina.” Among other things, it purported to vest in the Commission power, after a public hearing, to declare a state of emergency to exist in any marketing area (to be then designated a “controlled market”), and thereupon to fix the minimum prices to be charged for milk in such area by producers, distributors and retailers.
The complaint in the instant case alleged, inter alia:
That the defendant, operating a large retail store in Green-ville County, does not advertise his business by radio, television or newspaper publicity, but instead offers to the public certain “loss-leader” items, among them half-gallon units of milk at thirty-seven cents per unit, which is fourteen cents per unit less than the price charged by other retail merchants and chain stores in the Greenville area, and ten cents per unit below the cost to the defendant; and also quart units at nineteen cents, or seven cents less than the general retail price in that area and five cents less than they cost him; and that as the result of such merchandising efforts over the past several years he has built up a very large business.
“4. That the sale of milk as above stated by the defendant has caused much concern to other retail and chain stores handling milk in the area, which, in order to meet competition, will necessarily have to reduce the price of milk sold by them to a competitive figure, which they have threatened to do and were threatening' to do and some were doing prior to the issuance of the Orders of the Commission hereinafter referred to.
“5. That the employees of the Dairy Commission have heretofore called upon the defendant several times and explained to him that his method of operation would certainly disrupt the whole milk market, result in the lowering of prices by his competitors to a point which would cause loss to all parties, and would eventually cause the lowering of milk prices to such extent as to affect and ruin the producers or dairy farmers of South Carolina, who have a great in[23]*23vestment in the business and are without sufficient capital to stand any prolonged price war, which would force them to sell their dairy cattle, close their dairies, and result in the people of South Carolina once more becoming dependent upon foreign sources of supply, at whatever prices such suppliers might charge.
“6. That because of the activities of this defendant, which have existed for years and which he has refused to discontinue after several discussions and requests by the Commission so to do, and because of an imminent price war resulting from his activities as well as the activities and threats of others involved in other phases of the milk business in the market, a public hearing was held in Spartanburg, South Carolina, on the 14th day of July, 1959, after full and proper notice had been given to the public and to all others interested in any and all phases of the milk business. At this hearing some 300 individuals attended and considerable testimony was taken upon the threatening conditions existing in the market and the necessity of price-fixing, the Commission finding that an emergency existed justifying the exercise of its price fixing powers in the Greenville-Spartanburg market, which has been designated by the Commission as Controlled Market No. 1 and consists of these counties: Abbeville, Anderson, Cherokee, Greenville, Greenwood, Laurens, Oconee, Pickens, Spartanburg and Union.
“7. That thereafter the Commission declared the Green-ville-Spartanburg market area a controlled market and passed Orders fixing the minimum wholesale, retail and producer prices to be charged for various units of milk by all sellers and buyers of milk, these Orders becoming effective September 1, 1959; the defendant being notified prior to that time to apply for a permit, and of the other requirements of the Orders applicable to him. The prices fixed by these Orders were those generally prevailing at the time in the area and neither raised nor lowered prices, except as to those who were selling as was defendant and others generally conducting activities such as his.
[24]*24“8. That despite full information and knowledge of the laws, regulations and action of the Commission, upon information and belief, the defendant, on September 1, 1959, through his employee F. H. Vaughn, sold one half-gallon of Grade-A homogenized milk for thirty-seven cents to James A. Merck and threatens to continue such sales at such prices although the minimum price set and fixed by the Commission for such a unit of milk by its Order is set at fifty-one cents.”
The primary ground of the demurrer is that the price-fixing provisions of the Act and of the Commission’s orders issued by virtue thereof deny the defendant the due process and equal protection guaranteed by Article 1, Section 5 of the Constitution of South Carolina. Stated otherwise, the question is: May the State fix the price at which a retail grocer may sell milk?
To fix the price at which the owner of a thing may sell it is, to that extent, to deprive him of his property; for one’s ownership of property consists not only of his right to possess it, but also of his right to use it as he pleases, to sell it at his own price, and to give it away if he wishes to do so. Rogers-Kent, Inc., v. General Electric Co., 231 S. C. 636, 99 S. E. (2d) 665.
The right of a citizen to engage in lawful business, to make contracts, and to dispose of his property, is not absolute; it is subject to regulation and control by the state in the exercise of its police power. But that power, though an essential attribute of sovereignty, is also not absolute; it may be exercised only for the protection of the public in its health, safety, morals or general welfare. Gasque, Inc. v. Nates, 191 S. C. 271, 2 S. E. (2d) 36.
Involved here is no question of public health, safety or morals. The issue, as before stated, concerns only the asserted right of the state to fix the minimum price of milk at retail. Beyond doubt, the state has power to regulate and control the price that one in private business [25]*25may charge for goods or services where such business is “affected with a public interest.” Munn v. Illinois, 94 U. S. 113, 24 L. Ed. 77. That, conversely, it may not fix prices in a business not so affected, is manifest not only from the fact that the police power is concerned with public, not private, welfare, but also for the reason that such governmental intermeddling with business essentially private in nature is repugnant to the fundamental concept of free enterprise.
The term “affected with a public interest” is not susceptible of precise definition. In Wolff Packing Co. v. Court of Industrial Relations, 262 U. S. 522, 43 S. Ct. 630, 634, 67 L. Ed. 1103, the court classified businesses clothed with a public interest as follows: (1) those operating under a public grant of privileges expressly or impliedly imposing the affirmative duty of rendering a public service upon demand of any member of the public, e. g. common carriers and public utilities; (2) certain exceptional occupations which from the early days of the common law have been considered as affected with a public interest, e. g. those of operators of inns, cabs, and grist-mills; and (3) those which, though not at their inception, may be fairly said to have been devoted by their owners to the public use. With reference to the third of these classes, the following is clear from that decision :
1. Whether or not the private status of a business, with its attendant freedom from regulation, has changed into one in which the public has such an interest as to justify its regulation by the state, is always a matter for judicial inquiry; the mere declaration by the legislature that a business is affected with a public interest is not conclusive of such inquiry.
2. The extent to which a business affected with a public interest may be regulated by the state is not a matter solely within the legislative discretion. “It depends on the nature of the business on the feature which touches the public, and on the abuses reasonably to be feared.”
[26]*263. State regulation of the preparation of food may be justified when directed to the health of those employed in that business, or to the health of the public;
it may not be extended to the fixing of wages or prices in that industry.
In Williams v. Standard Oil Co., 278 U. S. 235, 49 S. Ct. 115, 116, 73 L. Ed. 287, 60 A. L. R. 596, the court, declaring that Tennessee was without power to fix prices at which gasoline might be sold, said:
“It is settled by recent decisions of this court that a state Legislature is without * * * power to fix prices at which commodities may be sold, services rendered, or property used, unless the business or property * * * is ‘affected with a pubilc interest.’ * * * By repeated decisions of this court, beginning with Munn v. Illinois, 94 U. S. 113, 24 L. Ed. 77, that phrase, however it may be characterized, has become the established test by which the legislative power to fix prices of commodities, use of property, or services, must be measured. As applied in particular instances, its meaning may be considered both from an affirmative and a negative point of view. Affirmatively, it means that a business or property, in order to be affected with a public interest, must be such or be so employed as to justify the conclusion that it has been devoted to a public use and its use thereby in effect granted to the public. * * * Negatively, it does not mean that a business is affected with a public interest merely because it is larger or because the public are warranted in having a feeling of concern in respect of its maintenance.”
See also New State Ice Co. v. Liebmann, 285 U. S. 262, 52 S. Ct. 371, 374, 76 L. Ed. 747, where the asserted power of Oklahoma to control the business of manufacturing and selling ice was denied, the court declaring that business to be “as essentially private in its nature as the business of the grocer, the dairyman, the butcher, the baker, the shoemaker, or the tailor”, and that “the production or sale of food or [27]*27clothing cannot be subjected to legislative regulation on the basis of a public use.”
For more than half a century after the decision in Munn v. Illinois the courts of this country, state and federal, recognized and accepted the principle that a state may not constitutionally fix prices in a private industry not “affected with a public interest.” In more recent years, with the spread of the paternalistic tendency to more and more governmental control of private business, that principle has by some courts been ignored or repudiated. In Nebbia v. People of State of New York, 291 U. S. 502, 54 S. Ct. 505, 515, 78 L. Ed. 940, 89 A. L. R. 1469, the court, by a five to four decision, upheld a New York statute that vested the Milk Control Board with power, among other things, to fix the minimum price to be charged by a retail grocer for milk sold for consumption off the premises. The price-fixing order there was occasioned by a surplus supply of milk and was designed to prevent smaller distributors, who did not have to carry large quantities of surplus milk, from underselling larger distributors not so fortunately situated. The majority opinion, conceding that the dairy business was neither, a public utility, nor a monopoly, nor a franchise grantee, declared that “the phrase ‘affected with a public interest’ can, in the nature of things, mean no more than that an industry, for adequate reason, is subject to control for the public good.” And again, that “ ‘affected with a public interest’ is the equivalent of ‘subject to the exercise of the police power.’ ” The minority opinion, rejecting this view as both unsound and contrary to long-established precedent, declared:
“Regulation to prevent recognized evils in business has long been upheld as permissible legislative action. But fixation of the price at which A, engaged in an ordinary business, may sell, in order to enable B, a producer, to improve his condition, has not been regarded as within legislative power. This is not regulation, but management, control, dictation— it amounts to the deprivation of the fundamental right which [28]*28one has to conduct his own affairs honestly and along customary lines. The argument advanced here would support general prescription of prices for farm products, groceries, shoes, clothing, all the necessities of modern civilization, as well as labor, when some Legislature finds and declares such action advisable and for the public good. This Court has declared that a state may not by legislative fiat convert a private business into’ a public utility. Michigan Public Utilities Comm. v. Duke, 266 U. S. 570, 577, 45 S. Ct. 191, 69 L. Ed. 445, 450, 36 A. L. R. 1105; Frost Trucking Co. v. Railroad Commission, 271 U. S. 583, 592, 46 S. Ct. 605, 70 L. Ed. 1101, [1104] 47 A. L. R. 457; Smith v. Cahoon, 283 U. S. 553, 563, 51 S. Ct. 582, 75 L. Ed. 1264, [1272], And if it be now ruled that one dedicates his property to public use whenever he embarks on an enterprise which the Legislature may think it desirable to bring under control, this is but to declare that rights guaranteed by the Constitution exist only so long as supposed public interest does not require their extinction. To adopt such a view, of course, would put an end to liberty under the Constitution.”
In Reynolds v. Milk Commission of Virginia, 163 Va. 957, 179 S. E. 507, the court, dividing four to three, upheld the licensing and price-fixing provisions of the statute creating the Virginia Milk Commission so far as said provisions and the Commission’s orders pursuant to them related to distributors. The majority opinion, leaning upon the Nebbia case as authority for the view that the milk industry may be regulated, even to the extent of fixing prices, if the public interest demands it, declared nevertheless that to uphold the issues in the case before it did not require commitment of the court to the broad views expressed by the author of the majority opinion in the Nebbia case. See also Highland Farms Dairy v. Agnew, 300 U. S. 608, 57 S. Ct. 549, 81 L. Ed. 835, where the Virginia statute was upheld by a divided (five to four) court.
In H. P. Hood & Sons v. Du Mond, 336 U. S. 525, 69 S. Ct. 657, 93 L. Ed. 865, the court, again dividing five to [29]*29four, struck down, as violative of the Commerce Clause, a New York statute under which the Commissioner of Agriculture and Markets of that state had refused to issue to the appellant, a Massachusetts corporation engaged in distributing milk to the inhabitants of Boston, and having three receiving depots in New York, a license to establish an additional receiving plant, the Commissioner’s refusal being upon the ground that issuance of the license would tend to disrupt the economy of other plants in the New York area, to deprive local markets of adequate supply during the short season, and to result in destructive competition in a market already adequately served. It reaffirmed, however, the view of the majority in the Nebbia case, that price-fixing for the protection of producers and distributors of milk is within the powers of a state over its internal commerce.
Following the Nebbia decision, the courts of many states have declared valid their statutes creating bureaus for the control of the milk industry and vesting in them power not only to regulate in the interest of the public health, but also to fix prices for the benefit of that industry. Cf. State Board of Milk Control v. Newark Milk Co., 118 N. J. Eq. 504, 179 A. 116; Noyes v. Erie & Wyoming Farmers Cooperative Corp., 281 N. Y. 187, 22 N. E. (2d) 334; State v. Auclair, 110 Vt. 147, 4 A. (2d) 107; Savage v. Martin, 161 Or. 660, 91 P. (2d) 273; Schwegmann Brothers Gaint Super Markets v. McCrory, 237 La. 768, 112 So. (2d) 606. See also State ex rel. North Carolina Milk Commission v. Galloway, 249 N. C. 658, 107 S. E. (2d) 631, upholding an order of the North Carolina Milk Commission prescribing a uniform hauling charge per cwt. to be paid to each producer delivering milk to Biltmore Dairy Farms, a processor and distributor, regardless of the volume of milk so delivered or the distance from Biltmore’s plant.
Deeply embedded in our concept of constitutional government is the principle that the state may not dictate prices in a private industry merely because it is large [30]*30and important or because the public may be concerned in respect of its maintenance, and that such control is justifiable under the police power only when the industry is affected with a public interest in the sense that it may fairly be said to have been devoted to the public use. To that principle we adhere, agreeing with the opinion of the minority in Nebbia v. People of State of New York, supra, which reaffirmed it. The majority opinion in that case, however conclusive as to applicable provisions of the Federal Constitution, does not control us in the interpretation of the Constitution of this state, under which the issue here arises. Rogers-Kent, Inc. v. General Electric Co., supra.
It is common knowledge that milk is an essential food; that it is highly perishable in nature; that its wholesomeness is a matter of concern to the public health; that the production and distribution of wholesome milk involves costly sanitary requirements; and that the milk industry in South Carolina is a large and important one. But these characteristics, however they may justify or require governmental regulation for the protection of the people’s health, do not render the business so affected with a public interest that as to it the state may prescribe prices for sales by retail stores. Similar characteristics are present in other industries of great importance to this state, e. g., the raising and marketing of beef cattle, the processing and distribution of meat, the growing and marketing of grain, of vegetables, and of fruits, and the handling, processing and sale of fish and other sea foods. Those industries, no less than that concerned with the production and distribution of milk, contribute substantially to the prosperity of this state; and their maintenance is thus a matter in which the people properly have an interest. But, like the milk industry, they are essentially juris privati; and we do not think that they may fairly be characterized as “devoted to a public use.” Cf. Wolff Packing Co. v. Court of Industrial Relations, supra [262 U. S. 522, 43 S. Ct. 633, 67 L. Ed. 1103], It has never been suggested in this state that the economic security of those engaged in them may be assured by legislative or bureaucratic price-fixing.
[31]*31The right of the state to regulate and control the production and distribution of milk with regard to sanitation and purity is not in question. The only provision of the Act that is challenged here is that which purports to empower the Commission to dictate to a retail grocer the minimum price at which he may sell wholesome milk that he has purchased from a. distributor at the latter’s price. In our opinion the police power of the state does not extend so far. We are in accord with the view expressed in Harris v. Duncan, 208 Ga. 561, 67 S. E. (2d) 692, 694, where the court, declaring unconstitutional a similar provision of the Georgia Milk Control Law, said:
“While we recognize that milk is an essential food and that a constant and sufficient supply is desirable, or even necessary, yet the same may be said of meat and bread. To let down the barriers of our Constitution and take away the right of contract by seller and purchaser as to milk, might well be applied to other food products. Once the constitutional barrier against infringement upon the right of free contract is down, and the gates become open to products because of their universal use by the public and its concern for a constant and adequate supply thereof, other products such as gasoline, oil, tobacco, clothing, and similar articles could well be the subject for price fixing.”
An “emergency” in the Greenville-Spartanburg area is alleged in justification of the Commission’s price-fixing orders. Analysis of the complaint discloses as the factual basis for declaration of an emergency nothing more or less than that the defendant, a retail grocer, in order to attract customers to his store, has for several years been selling milk below the retail price prevailing in the Greenville-Spartanburg area; that this has caused “much concern” to other retail merchants in the area, some of whom have reduced and others of whom “will necessarily have to reduce the price of milk sold by them to a competitive figure;” that this practice “would eventually cause the lowering of milk prices to such extent as to affect and ruin the producers [32]*32or dairy farmers of South Carolina * * * and result in the people of South Carolina once more becoming dependent upon foreign sources of supply * * There is no suggestion that any producer or distributor has yet been forced to reduce his price a penny as the result of the defendant’s “loss-leader” practice; nor is it suggested that the defendant or any other retailer in the area is presently unwilling to pay the price now being charged by the distributors or is buying from out-of-state sources. Upon the facts alleged, the “emergency” would seem more fancied than real
We reject the thought, suggested by the allegations of the complaint just quoted, that the “emergency” contemplated by the Commission was the possibility of importation from other states of milk more cheaply purchased, and that the price-fixing orders were designed to protect local economic interests from interstate competition. For such a purpose would not support the orders in question even under the view that a state may fix prices in the milk industry within its borders. As Mr. Justice Cardozo, speaking for a unanimous court in Baldwin v. G. A. F. Seelig, Inc., 294 U. S. 511, 55 S. Ct. 497, 500, 79 L. Ed. 1032, 101 A. L. R. 55, said of a provision in the New York Milk Control Act purporting to forbid the sale in that state of milk bought outside unless the price paid to the producer was one that would be lawful upon a like transaction within the state:
“Such a power, if exerted, will set a barrier to traffic between one state and another as effective as if customs duties, equal to the price differential, had been laid upon the thing transported. * * * Neither the power to tax nor the police power may be used by the state of destination with the aim and effect of establishing an economic barrier against competition with the products of another state or the labor of its residents.”
Another reason shuts our ears to the cry of “emergency” in this case. An emergency, however it may furnish occasion for the exercise of existing power, does not itself create [33]*33power. Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579, 72 S. Ct. 863, 96 L. Ed. 1153, 26 A. L. R. (2d) 1378. The Commission, being without power to fix prices before the alleged emergency, acquired no potency in that field because of it.
Affirmed.
Taylor and Moss, JJ., concur.