HAMLIN, Justice.
The defendant, Louisiana Board of Alcoholic Beverage Control, and intervenors, Retail Liquor Dealers Association of Louisiana, Inc., John Signorelli, John V. Ponsaa, (Alcide Hughes, Ed Manthey, James Daigrepont, John Mansueto, Horace Ruiz, [129]*129Harry Rogers, Rene Dessommes, Bill Bosio, John Boesch, Jr., Louis Smith, Sr., Robert France, Henry Caranek, John Crespino, Frank Musso, Vincent Signorelli, Gene Ricca, Curry Rozas, Dudley Rozas, Boyd Gammill, Paul Gardshene, John Cicero, W. R. Motes, A. R. Knippers, Nick Cordaro, Tev Allen, John O’Keefe, Tom Bedmarski, and Fred Beam, appeal to this Court (Art. VII, Sec. 10(2), La. Const, of 1921) from judgments of the trial court which decreed Act 290 of 1964 unconstitutional; which made the rules for permanent injunctions absolute; which ordered, adjudged, and decreed that permanent injunctions issue in favor of plaintiffs, Lawrence J. Reynolds, d/b/a Larry & Katz, David Y. Martin, Jr., d/b/a Martin’s Wine Cellar, and Schwegmann Brothers Giant Super Markets, and against defendant, Louisiana Board of Alcoholic Beverage Control, permanently enjoining, restraining, and prohibiting it from enforcing Act 290 of 1964; and which dismissed the petitions of intervention filed in these proceedings at intervenors’ cost.
Separate but almost identical suits, attacking the constitutionality of Act 290 of 1964 and praying for injunctive relief, were filed by plaintiffs in the trial court. They were consolidated for trial, and separate but identical judgments were rendered in each matter. The cases were consolidated in this Court by formal oral motion made on the day of argument, and one judgment will be rendered herein.
Upon the filing of their suits, plaintiffs were granted temporary restraining orders ; the defendant Board took suspensive appeals from the orders. On application by plaintiffs for remedial writs of certiorari, prohibition, and mandamus, the Court of Appeal, First Circuit, stated that the temporary restraining orders issued by the trial court had expired under their own terms, and the matters were remanded to the district court for further proceedings. This Court denied applications for writs. The trial court then denied plaintiffs’ request for preliminary injunctions, and the matters proceeded to trial on the merits. The instant judgments, supra, ensued.
Appellant, Louisiana Board of Alcoholic Beverage Control, (joined by the Retail Liquor Dealers Association of Louisiana and a large number of service retailers, mostly single purpose dealers who deal in one commodity — principally alcoholic beverages — and adhere generally to higher markups than volume dealers) contends that the district court erred:
1. In holding that Act 290 of 1964 is unconstitutional;
2. In holding that the act is an unreasonable exercise of the police' power of the State;
3. In failing to find from the law and the evidence that a problem exist[131]*131ed in the liquor industry, that the legislature furnished the solution thereto, and that a reasonable relationship exists between the problem sought to be solved and -the means provided to solve it;
4. In holding that plaintiffs had proved the act unconstitutional; and
5. In placing on defendant the burden of proving the existence of an economic problem or other condition which moved the Legislature to act, plus the additional burden of justifying the means adopted to cope with the problem or other condition.
Appellees, volume retailers, submit to this Court that the price-fixing provisions of Act 290 of 1964 are patently unconstitutional in the light of this Court’s decision in Schwegmann Brothers v. Louisiana Board of Alcoholic Beverage Control, 216 La. 148, 43 So.2d 248, 14 A.L.R.2d 680.
In the Schwegmann case supra (1949), this Court concluded:
“From all of which we conclude that the provisions of Act 360 of 1948 which relate to the mandatory minimum mark ups (Sections l(s), 24 and 26) do not tend, in a degree that is perceptible and clear, toward the accomplishment of the announced purpose of the statute, namely the regulation and control of the liquor traffic so that it ‘may not cause injury to the economic, social and moral well-being of the people of the State.’ They, in other words, are inappropriate for the achievement of the legitimate object described in the statute. Accordingly, we hold that such provisions arc manifestly unreasonable within the contemplation of the state’s police power, and, hence, are unconstitutional in that they •violate the due process clauses of our state and federal constitutions.
“ * * * here we are concerned only with specific mandatory mark up provisions of a particular statute, with respect to the enactment of which the police power was not validly exercised. * * * ” (Emphasis supplied.)
In the instant matter, the trial judge stated:
“ * * * it was Mr. Schwegmann who filed a suit in 1949 that resulted in Act 360 of 1948 being held unconstitutional by our Supreme Court insofar as that Act sought to require fixed mark-ups in the sale both at wholesale and retail of alcoholic beverages. * * * I have given a very careful line by line study of Act 360 of 1948 and Act 290 of 1964. For the life of meT can’t find any essential difference in the particular mandatory provisions, except the differences in percentages' of the mark-ups * * *.
[133]*133“ ^ iji *
“ * * * Also, the two Acts being exactly the same so far as the procedural provisions are concerned and the Supreme Court having passed o® such procedure, I don’t know any way I can get out of following that decision of Schwegmann versus the Control Board in 1949. * * * ”
The trial judge denied a motion for a new trial which alleged in part that, “The Court was in error in not recognizing and taking judicial notice of the official policy of the State of Louisiana towards regulation of alcoholic beverages; the official policy is the promotion of temperance; and the Court was in error in failing to hold that Act 290 of 1964 had for its purpose the promotion of temperance, and did in fact reduce the volumes of sales, and in turn, consumption of alcoholic beverages.” In denying the motion, the judge stated, “ * * * I find in considering all of these phases of these cases that Act 290 of 1964 does not contain any language to indicate the promotion of moderation in the indulgence of natural appetites as being the purpose of the price regulation and neither did Act 360 of 1948. * * * ”
A determination of the question of the similarity vel non of the provisions of Act 360 of 1948, which related to mandatory minimum markups (Sections l(s), 24, and 26), with Act 290 of 1964 stands at the threshold of this case. We, therefore, direct our immediate attention to it.
The above sections of the 1948 Act recited :
Section l(s) “‘Cost’, invoice price to the dealer plus freight or cartage, if not included in the invoice, without any deduction for any discounts or concessions of any kind, plus all taxes, but not including sales tax and the emergency war tax of the United States of $3.00 per proof gallon, which became effective April 1, 1944.”
Section 24.
Free access — add to your briefcase to read the full text and ask questions with AI
HAMLIN, Justice.
The defendant, Louisiana Board of Alcoholic Beverage Control, and intervenors, Retail Liquor Dealers Association of Louisiana, Inc., John Signorelli, John V. Ponsaa, (Alcide Hughes, Ed Manthey, James Daigrepont, John Mansueto, Horace Ruiz, [129]*129Harry Rogers, Rene Dessommes, Bill Bosio, John Boesch, Jr., Louis Smith, Sr., Robert France, Henry Caranek, John Crespino, Frank Musso, Vincent Signorelli, Gene Ricca, Curry Rozas, Dudley Rozas, Boyd Gammill, Paul Gardshene, John Cicero, W. R. Motes, A. R. Knippers, Nick Cordaro, Tev Allen, John O’Keefe, Tom Bedmarski, and Fred Beam, appeal to this Court (Art. VII, Sec. 10(2), La. Const, of 1921) from judgments of the trial court which decreed Act 290 of 1964 unconstitutional; which made the rules for permanent injunctions absolute; which ordered, adjudged, and decreed that permanent injunctions issue in favor of plaintiffs, Lawrence J. Reynolds, d/b/a Larry & Katz, David Y. Martin, Jr., d/b/a Martin’s Wine Cellar, and Schwegmann Brothers Giant Super Markets, and against defendant, Louisiana Board of Alcoholic Beverage Control, permanently enjoining, restraining, and prohibiting it from enforcing Act 290 of 1964; and which dismissed the petitions of intervention filed in these proceedings at intervenors’ cost.
Separate but almost identical suits, attacking the constitutionality of Act 290 of 1964 and praying for injunctive relief, were filed by plaintiffs in the trial court. They were consolidated for trial, and separate but identical judgments were rendered in each matter. The cases were consolidated in this Court by formal oral motion made on the day of argument, and one judgment will be rendered herein.
Upon the filing of their suits, plaintiffs were granted temporary restraining orders ; the defendant Board took suspensive appeals from the orders. On application by plaintiffs for remedial writs of certiorari, prohibition, and mandamus, the Court of Appeal, First Circuit, stated that the temporary restraining orders issued by the trial court had expired under their own terms, and the matters were remanded to the district court for further proceedings. This Court denied applications for writs. The trial court then denied plaintiffs’ request for preliminary injunctions, and the matters proceeded to trial on the merits. The instant judgments, supra, ensued.
Appellant, Louisiana Board of Alcoholic Beverage Control, (joined by the Retail Liquor Dealers Association of Louisiana and a large number of service retailers, mostly single purpose dealers who deal in one commodity — principally alcoholic beverages — and adhere generally to higher markups than volume dealers) contends that the district court erred:
1. In holding that Act 290 of 1964 is unconstitutional;
2. In holding that the act is an unreasonable exercise of the police' power of the State;
3. In failing to find from the law and the evidence that a problem exist[131]*131ed in the liquor industry, that the legislature furnished the solution thereto, and that a reasonable relationship exists between the problem sought to be solved and -the means provided to solve it;
4. In holding that plaintiffs had proved the act unconstitutional; and
5. In placing on defendant the burden of proving the existence of an economic problem or other condition which moved the Legislature to act, plus the additional burden of justifying the means adopted to cope with the problem or other condition.
Appellees, volume retailers, submit to this Court that the price-fixing provisions of Act 290 of 1964 are patently unconstitutional in the light of this Court’s decision in Schwegmann Brothers v. Louisiana Board of Alcoholic Beverage Control, 216 La. 148, 43 So.2d 248, 14 A.L.R.2d 680.
In the Schwegmann case supra (1949), this Court concluded:
“From all of which we conclude that the provisions of Act 360 of 1948 which relate to the mandatory minimum mark ups (Sections l(s), 24 and 26) do not tend, in a degree that is perceptible and clear, toward the accomplishment of the announced purpose of the statute, namely the regulation and control of the liquor traffic so that it ‘may not cause injury to the economic, social and moral well-being of the people of the State.’ They, in other words, are inappropriate for the achievement of the legitimate object described in the statute. Accordingly, we hold that such provisions arc manifestly unreasonable within the contemplation of the state’s police power, and, hence, are unconstitutional in that they •violate the due process clauses of our state and federal constitutions.
“ * * * here we are concerned only with specific mandatory mark up provisions of a particular statute, with respect to the enactment of which the police power was not validly exercised. * * * ” (Emphasis supplied.)
In the instant matter, the trial judge stated:
“ * * * it was Mr. Schwegmann who filed a suit in 1949 that resulted in Act 360 of 1948 being held unconstitutional by our Supreme Court insofar as that Act sought to require fixed mark-ups in the sale both at wholesale and retail of alcoholic beverages. * * * I have given a very careful line by line study of Act 360 of 1948 and Act 290 of 1964. For the life of meT can’t find any essential difference in the particular mandatory provisions, except the differences in percentages' of the mark-ups * * *.
[133]*133“ ^ iji *
“ * * * Also, the two Acts being exactly the same so far as the procedural provisions are concerned and the Supreme Court having passed o® such procedure, I don’t know any way I can get out of following that decision of Schwegmann versus the Control Board in 1949. * * * ”
The trial judge denied a motion for a new trial which alleged in part that, “The Court was in error in not recognizing and taking judicial notice of the official policy of the State of Louisiana towards regulation of alcoholic beverages; the official policy is the promotion of temperance; and the Court was in error in failing to hold that Act 290 of 1964 had for its purpose the promotion of temperance, and did in fact reduce the volumes of sales, and in turn, consumption of alcoholic beverages.” In denying the motion, the judge stated, “ * * * I find in considering all of these phases of these cases that Act 290 of 1964 does not contain any language to indicate the promotion of moderation in the indulgence of natural appetites as being the purpose of the price regulation and neither did Act 360 of 1948. * * * ”
A determination of the question of the similarity vel non of the provisions of Act 360 of 1948, which related to mandatory minimum markups (Sections l(s), 24, and 26), with Act 290 of 1964 stands at the threshold of this case. We, therefore, direct our immediate attention to it.
The above sections of the 1948 Act recited :
Section l(s) “‘Cost’, invoice price to the dealer plus freight or cartage, if not included in the invoice, without any deduction for any discounts or concessions of any kind, plus all taxes, but not including sales tax and the emergency war tax of the United States of $3.00 per proof gallon, which became effective April 1, 1944.”
Section 24. “That Board shall adopt and promulgate rules and regulations to prevent any unfair practices in the sale of any ‘regulated beverages’ and to enforce the following minimum mark up by every dealer over his cost:
“(a) The wholesaler’s minimum selling price to a retailer shall be his cost, as herein defined, plus 15% on liquor; 20% on cordial liquers and specialties; and 25% on sparkling 'and still wines.
“(b) The retailer’s minimum selling price shall be his cost, as herein refined, plus 33Y¡% on liquor; 45% on cordials, liquers and specialties ; and 50% on sparkling and still wines.
“Provided, that the rules shall pre-scribe that no retailer shall expose any such beverages for sale without showing the selling price thereof in easily [135]*135read figures, and it shall be unlawful for any retailer to ask or receive any other price for such beverages, except that the retailers shall add to said price, and collect from the purchaser, all sales taxes that may be due on each transaction.
“Provided further, that where a wholesaler bottles wine in the State, there shall be added to his ‘cost’, the cost of bottles and supplies plus 10% of said total.
“Provided, also, that no mandatory mark up shall be required when the transaction is between two wholesalers for resale at wholesale, or between two retailers, and that the cost for the minimum mark up on the resale in such transaction shall be the same cost as that of the original wholesaler or retailer, as hereinbefore fixed; and provided further that the provisions of this section shall not apply to sales at wholesale made in the State for export beyond its borders.” (Emphasis supplied.)
Section 26. “As a condition to the sale of any dealer’s product in the State, every manufacturer and every wholesaler shall file with the Board a detailed list of their selling prices, which may be supplemented or changed from time to time, but not of tener than once in every 30 days, in such manner as the Board may prescribe. Said lists shall be posted by the Board and distributed to all licensed dealers within the State. No change in prices shall become effective until thirty days after the filing of notice thereof with the Board. Provided, that no discounts or rebates of any character or amount shall be given or received from list prices.” (Emphasis supplied.)
Title I, Purposes and Definitions, of Act 360 of 1948 recited:
“WHEREAS, it is deemed necessary for the protection of the safety, welfare, health, peace and morals of the people of the State that all traffic in alcoholic beverages containing more than six per centum of alcohol by volume be regulated and controlled, and that the police power of the State be exerted so that the said traffic may not cause injury to the economic, social and moral well-being of the people of the State, * *
Act 36 of 19S6, “The Alcoholic Beverage Control Law,” presently effective as amended, makes a statement 'identical to that set forth above; many sections of this Act are found in West’s LSA:R.S. under Title 26. Act 290 of 1964 amended Chapter 1 of Title 26 “by adding thereto a new Part to be designated as Part VI thereof, to contain R.S. 26:211 through R.S. 26:219, to require and to provide for minimum prices on certain alcoholic beverages, to provide for the administration and enforce[137]*137ment thereof and to provide for penalties for violations of said Part.” Pertinent sections recite:
Ҥ 211. Filing of schedules required
“No wholesaler shall, after September 1, 1964, sell or offer to sell any alcoholic beverages until such wholesaler shall have filed with the Louisiana Board of Alcoholic Beverage Control a schedule in writing which shall contain, with respect to each item he proposes to sell, the exact brand or trade name, capacity of package, nature of contents, and proof. In addition, such schedule shall show the minimum price at which the wholesaler proposes to sell, which price shall be known as the wholesaler’s list price, the minimum price at which the wholesaler’s customers shall sell at retail in quantities of less than one case; and the minimum price at which the wholesaler’s customers shall sell at retail in quantities of one case or more, which prices shall be known as the retailer’s list price. The provisions of this Section shall not apply to any licensed wholesaler with respect to such distilled spirits and wines as has been purchased from another licensed wholesaler.” (Emphasis supplied.)
“§ 212. Wholesaler’s list price
The wholesaler’s list price of distilled spirits shall not be in an amount less than his cost price, plus a markup of at least ten per cent of such cost price. The wholesaler’s list price of wine shall not be in an amount less than his cost price, plus a markup of at least eighteen per cent of such cost price. The wholesaler’s cost price shall be his actual net invoice cost price as shown by the duplicate invoice on file with the board, inclusive of bottling charges and ¿11 other charges paid for the distilled spirits or wines, plus all taxes, plus all transportation charges calculated on a minimum basis of not less than fifty cents per case. The provisions of this Section shall not apply to any licensed wholesaler with respect to such distilled spirits and wines as has been purchased from another licensed wholesaler.” (Emphasis supplied.)
“§ 213. Retailer’s list price
The retailer’s list price of distilled spirits shall not be less than the retailer’s cost price, plus, where sales are made in quantities of less than one case, a markup of at least twenty per cent of the retailer’s cost price, or plus; where sales are made in quantities of one case or more, a markup of at least ten per cent of the retailer’s cost price. The retailer’s list price of wines shall not be less than the retailer’s cost price, plus, where sales are made in quantities of less than one case, a markup of at least thirty per cent of the retailer’s cost price, or plus; where sales are made in [139]*139quantities of one case or more, a markup of at least fifteen per cent of the retailer’s cost price. The retailer’s cost price shall be the wholesaler’s list price, excluding municipal or parish gallon-age tax on distilled spirits and wines.” (Emphasis supplied.)
Ҥ 214. Amendment of schedules
Any wholesaler may amend his schedule on file with the board at any time, provided the amendment does not reduce either the wholesaler’s list price or the retailer’s list price below the minimum prices provided in Sections 212 and 213 hereof. All amended schedules shall become effective immediately upon being filed, except that where such an amended schedule includes a new brand of alcoholic beverage not previously sold by such wholesaler the schedule shall not become effective for a period of thirty days after it has been filed with the board.” (Emphasis supplied.)
Ҥ 215. Sale below'list price unlawful
A. No wholesaler shall sell or offer to sell any alcoholic beverages to any retailer nor shall any retailer buy or offer to buy any alcoholic beverages from any wholesaler at a price belove a wholesaler’s list price.
B. No retailer shall sell or offer to sell any alcoholic beverages at a price belozv the retailer’s list price.
C.All distilled spirits and wines owned by any retailer or wholesaler in Louisiana, after September 1, 1964, shall be sold by such wholesaler or retailer at prices not less than the first list price shown on the schedule filed by the wholesaler distributing such distilled spirits or wines after September 1, 1964.
Notwithstanding the provisions of this Section, any licensed wholesaler may sell any distilled spirits and wines purchased from another wholesaler for a price not less than the wholesale list price of the selling wholesaler.” (Emphasis supplied.)
Act 360 of 1948 contained mandatory mark up provisions. It also contained mandatory posting provisions in Sec. 26, supra; the manufacturer and the wholesaler were bound by the postings for a period of thirty days. Act 290 of 1964 sets a floor on prices ; it sets a minimum price under which dealers cannot sell; it requires no posting and provides that the wholesaler under certain conditions may amend his schedule at any time. Act 290 does not order the retailer to show prices on exposed beverages. Section 24(b) of Act 360 of 1948 ordered the retailer to show prices on exposed beverages and provided that it would be unlawful for any retailer to 'ask or receive any other price for such beverages.
Similarities do exist in the two Acts; but, since both Acts treat of price control, it [141]*141follows that they are bound to contain similarities. Act 290 of 1964 is a comprehensive statute; it is definitive in its terms; its mark up provisions vary in great degree from the assailed sections of the 1948 Act.
We do not find that Act 360 of 1948 (Secs. l(s), 24, and 26) and Act 290 of 1964 are identical. Therefore, in the light of Schwegmann Brothers v. Louisiana Board of Alcoholic Beverage Control, 216 La. 148, 43 So.2d 248, we are not precluded from further consideration of the errors herein assigned, supra, to the judgments of the trial court.
In attacking the constitutionality of Act 290 of 1964, plaintiffs contended in their petitions that it violated Art. Ill, Sec. 1, and Art. I, Sec. 2, La.Const. of 1921, and the Fourteenth Amendment to the United States Constitution, in that the Act unlawfully delegated rights and powers to producers to fix certain prices and define certain crimes and criminal conduct punishable under the provisions of the Act.
We find the above constitutional attack without merit for reasons which will be hereinafter stated, and for the further reason that plaintiffs have not urged the contention herein. As stated supra, plaintiffs rely on the 1949 Schwegmann case which, as stated supra, held that certain sections of the 1948 Act violated the due process clause of the Louisiana and Federal Constitutions. In their petitions plaintiffs seriously urged that Act 290 of 1964 is unconstitutional because it deprives them and others similarly situated of due process of law. They contend in brief that “The 1964 minimum price-fixing liquor law, like the 1948 law, is unconstitutional because it violates the due process clauses of the Louisiana Constitution and the United States Constitution. * * * Every reason which led the Court to invalidate the 1948 price-fixing law applies.with equal force to the 1964 law.”
The business of manufacturing and selling intoxicating liquors is one which the State controls. In the early case of State v. Nejin, 140 La. 793, 74 So. 103 (1917), this Court stated :
“ * * * The law upon the question thus presented is well stated as follows:
“ ‘The entire business of manufacturing and selling intoxicating liquors is completely within the control of the state, and there is nothing in the Constitution of the United States to prevent it from regulating and restraining the traffic, or from prohibiting it altogether.’ 6 R.C.L. § 271.”
In Mugler v. Kansas, 123 U.S. 623, 8 S.Ct. 273, 31 L.Ed. 205 (1887), the United States Supreme Court, in discussing certain statutes of the State of Kansas relating to the manufacture and sale of intoxicating liquors, stated:
[143]*143“ * * * Nor can legislation of that character come within the fourteenth amendment, in any case, unless it is apparent that its real object is not to protect the community, or to promote the general well-being, but, under the guise of police regulation, to deprive the owner of his liberty and property, without due process of law. * * * ”
In Ziffrin, Inc. v. Reeves, 308 U.S. 132, 60 S.Ct. 163, 84 L.Ed. 128 (1939), the United States Supreme Court further stated:
“The Twenty-first Amendment sanctions the right of a state to legislate concerning intoxicating liquors brought from without, unfettered by the Commerce Clause. Without doubt a state may absolutely prohibit the manufacture of intoxicants, their transportation, sale, or possession, irrespective of when or where produced or obtained, or the use to which they are to be put. Further, she may adopt measures reasonably appropriate to effectuate these inhibitions and exercise full police authority in respect of them. * * * ”
The United States Supreme Court reaffirmed its view as late as 1964 in Hostetter v. Idlewild Bon Voyage Liquor Corp., 377 U.S. 324, 84 S.Ct. 1293, 12 L.Ed.2d 350, saying:
“This view of the scope of the Twenty-first Amendment1 with respect to a State’s power to restrict, regulate, or prevent the traffic and distribution of intoxicants within its borders has remained unquestioned. See [State of] California v. [State of] Washington, 358 U.S. 64, 79 S.Ct. 116, 3 L.Ed.2d 106. Thus, in Ziffrin, Inc. v. Reeves, 308 U.S. 132, 60 S.Ct. 163, 84 L.Ed. 128, there was involved a Kentucky statute, a long, comprehensive measure (123 sections) designed rigidly to regulate the production and distribution of alcoholic beverages through means of licenses and otherwise. The manifest purpose is to channelize the traffic, minimize the commonly attendant evils; also to facilitate the collection of revenue. To this end manufacture, sale, transportation, and possession are permitted only under carefully prescribed conditions and subject to constant control by the state.’ * * * ” 2
[145]*145A citizen does not possess the inherent right to sell intoxicating liquors, but our Court has recognized that the business of selling intoxicating liquors is a lawful calling. It has also recognized that the liquor business is associated with inherent evils, and, because of this fact, the business may have imposed on it regulations more stringent than on other businesses.
“Our organic law therefore secures to every 'citizen the right to earn his livelihood in any lawful calling, unless he is deprived of that right by due process of law, and it recognizes the business of selling intoxicating liquors as a lawful calling by conferring upon the General Assembly the right to regulate rather than to prohibit it; and, conformably to the mandate thus conferred, the General Assembly recognizes it as a lawful calling by including it among other callings, for the pursuit of which it authorizes the issuance of licenses, and by making no attempt to prohibit it, * * *.
“ * * *
“ * * * A statute of this state imposing conditions upon the business of selling intoxicating liquors, though such conditions be more onerous than those imposed upon another business, may be sustained because the business of selling intoxicating liquors more seriously affects the health, morals, and general welfare of the public than another business; * * State ex rel. Galle v. City of New Orleans, 113 La. 371, 36 So. 999, 67 L.R.A. 70 (1904); See, Idlewild Bon-Voyage Liquor Corp. v. Epstein, 212 F. Supp. 376, 377.
“The proposition is generally accepted that there is no inherent right in a citizen to sell intoxicating liquor, and the business may be permitted under conditions such as will limit to the utmost the evils associated therewith. * * * Due to the nature of the business, the governing authorities may impose regulations on it more stringent than on other businesses, State ex rel. Galle v. City of New Orleans, 113 La. 371, 36 So. 999, 67 L.R.A. 70, 2 Ann.Cas. 92, and while constitutional guarantees cannot be transgressed, it is settled that the enjoyment of all rights is subject to the police power and reasonable regulations enacted pursuant thereto. 11 Am.Juris., verbo Constitutional Law, Section 267, p. 1006.” City of Baton Rouge v. Rebowe, 226 La. 186, 75 So.2d 239, (1954).
The power to regulate the liquor business resides within the State under its police power. Art. XIX, Sec. 18, La.Const. of 1921. “ * * * the right to regulate the traffic of liquor is an inherent police power of the, state which, under the express provisions of Section 18 of Article XIX of the Constitution .of 1921 can never be [147]*147surrendered, * * State v. Gardner, 198 La. 861, 5 So.2d 132 (1941). “The state may, under its police powers, enact laws regulating the liquor traffic, or it may prohibit the traffic altogether, either statewide or in specified localities, and such statutes are constitutional. * * * ” City of Bogalusa v. Gullotta, 181 La. 159, 159 So. 309 (1935).
The exercise of the police power in the enactment of laws must be valid, and the restrictions it imposes must be reasonable. “The test to be applied in determining whether there has been a valid exercise of the police power in the constitutional sense is ‘to inquire whether the restrictions it imposes on rights secured to individuals by the Bill of Rights are unreasonable, and not whether it imposes any restrictions on such rights. * * * The validity of a police regulation therefore primarily depends on whether under all the existing circumstances the regulation is reasonable or arbitrary and whether it is really designed to accomplish a purpose properly falling within the scope of the police power.’ 11 Am.Juris, verbo Constitutional Law, Sec. 302, pp. 1074, 1075; see, also, Schwegmann Bros. v. Louisiana Board of A.B.C., 216 La. 148, at p. 170, 43 So.2d 248, 14 A.L.R.2d 680; City of DeRidder v. Mangano, 186 La. 129, 171 So. 826.” City of Baton Rouge v. Rebowe, 226 La. 186, 75 So.2d 239 (1954). “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.” Nebbia v. People of State of New York, 291 U.S. 502, 54 S.Ct. 505, 78 L.Ed. 940.3 [149]*149■‘If the laws passed are seen to have a reasonable relation to a proper legislative purpose, and are neither arbitrary nor discriminatory, the requirements of due process are satisfied, and judicial determination to that effect renders a court functus officio ’’ Nebbia v. People of State of New York, supra. See, Lionel’s Cigar Store v. McFarland, 162 La. 956, 111 So. 341; Mouledoux v. Maestri, 197 La. 526, 2 So. 2d 11.
In the 1949 Schwegmann case, we observed that the announced object or purpose of Act 360 of 1948 was to regulate and control, under the police power, all traffic of alcoholic beverages containing more than six per centum of alcohol by volume. We said that such was clearly stated in the Act’s preamble. Applying the test of the language of the 1948 Act, supra, to the effect that liquor traffic may not cause injury to the economic, social, and moral well-being of the people of the State, we asked, “Is there a real and substantial relation between the mandatory minimum mark ups of the statute and the preventing of injury to the economic, social and moral well being of the people of the state? Are those means (the mark ups) reasonably necessary and appropriate for the accomplishment of the legitimate object or purpose which the statute announces (regulation and control of the traffic) ?” We believe that the same questions can be asked herein. ^
The evidence of record in the instant case discloses that prior to the passage of Act 290 of 1964 (sixteen years after the Act of 1948), some deals, discounts, and gratuities took place in some portions of the liquor trade; there were occasional price wars and some ruinous competition; a great number of liquor retail sales had only a 6% mark up; the sales of certain volume retailers ran as high as $2,000,000.00 [151]*151(Reynolds) and $5,000,000.00 (Schwegmann) per year; volume retailers advertised several brands of alcoholic beverages at retail prices slightly above the wholesale cost of service retailers for the same brands. The evidence further shows that since the passage of Act 290 of 1964, consumption of alcoholic beverages has dropped in certain instances; no more deals, low mark up selling with price appeal, price wars or ruinous competition exist.
' We are compelled to conclude that the factors which existed in the liquor trade prior to the enactment of Act 290 of 1964 were detrimental to the economic welfare of the liquor traffic or business; price structure at both retail and wholesale levels was a primary source of trouble to a large number of dealers. It was imperative that the economic welfare of the liquor business be stabilized; such conditions as are herein evidenced may not have been prevalent in 1948, sixteen years before. We are constrained to conclude that the price structure adopted by Act 290 of 1964 is related to the economic welfare of the sale of alcoholic beverages and is reasonable in its application, x
Emphasis is placed by appellant Board upon the fact that Act 290 of 1964 had for one of its primary purposes the bringing about of temperance in -the consumption .of intoxicating liquors. Since the Act was merely an amendment to West’s LSA-R.S., it was not necessary that such purpose be stated, Buras v. Orleans Parish Democratic Executive Com., 248 La. 203, 177 So.2d 576; it was not so stated. We, therefore, direct to ourselves the question of whether a reasonable relationship exists between (a) the purpose of bringing about temperance in the consumption of intoxicating liquors, and (b) the means adopted to accomplish such purpose, namely, a minimum price control act.
Webster’s New World Dictionary of the American Language, College Edition, defines temperance as follows:
“n. * * * moderation, sobriety * * * 1. the state or quality of being temperate; self-restraint in conduct, expression, indulgence of the appetites, etc; moderation, originally as one of the four cardinal virtues. 2. moderation in eating and drinking, especially in drinking alcoholic liquors. 3. total abstinence from alcoholic liquors.
The following pronouncements from decisions of other states (although we are not bound by them) are pertinent:
“ * * * The liquor traffic has long been- recognized as a source of danger to the public welfare, health and safety, and regulations governing the conduct of the business and frequently going to the extent of prohibiting it altogether have beep sustained. Boston Beer Co. [153]*153v. [Commonwealth of] Massachusetts, 97 U.S. 25, 32, 24 L.Ed. 989; Mugler v. State of Kansas, 123 U.S. 623, 8 S.Ct. 273, 31 L.Ed. 205; * * *.
“The power of the State to protect itself by an exercise of the police power is commensurate with the nature of the evil which it seeks to eliminate. If the Legislature came to the conclusion that the establishment of retail prices for customers of package stores would tend to promote temperance, to stabilize the package store business, to avoid price wars and cut throat competition, and to instill more observance for the law in those engaged in the •business and would better protect the public, we cannot say its belief was so irrational that none of these objects would result from the passage of the act.” (Emphasis supplied.) Supreme Malt Prod. Co. v. Alcoholic Beverages C. Com’n, 334 Mass. 59, 133 N.E.2d 775.
“The proof shows that due to price-cutting and to cut-throat competition by producers, wholesalers and retailers, chaos existed in the trade which resulted in law violations, excessive use of intoxicants and other conditions detrimental to the commonwealth. The evidence is to the effect that the fixing of minimum prices has had a stabilizing effect upon the industry, done away with ruinous competition, resulted in less consumption of intoxicants by the public and has caused liquor to be sold in more wholesome surroundings.” Reeves v. Simons, 289 Ky. 793, 160 S.W.2d 149. (Emphasis supplied.)
“ * * * The establishment of retail prices for customers of retail stores is an exercise of the police power in order to promote temperance, to stabilize the business, to avoid price wars, to instill observance of the law, and to protect the public. * * * ” Kneeland Liquor, Inc. v. Alcoholic Beverages Con. Com’n, 345 Mass. 228, 186 N.E.2d 593. (Emphasis supplied.)
“Although the act here in question does not contain a statement of the objects sought to be accomplished, the purposes which the General Assembly had in mind in adopting it are easily discernible. They were both to promote temperance in the consumption of intoxicating liquor and, by stabilizing the industry, to encourage observance of the Liquor Control Act by those who are permitted to sell liquor not to be consumed on the premises. It may reasonably be presumed that, without the establishment of a minimum retail price for branded liquor, price wars among retail dealers are apt to occur. The cutting of prices which occurs during such wars may induce persons to purchase, and therefore consume, more liquor than they would if higher [155]*155prices were maintained. Moreover, the cutthroat competition which ensues is apt to induce the retailers to commit such infractions of the law as selling to minors and keeping open after hours in order to withstand the economic pressure. To prevent the occurrence of such conditions promotes public health, safety and welfare. Like, all reasonable restrictions on the liquor traffic, such a purpose is well within the police power of the state. * * *
“To accomplish this purpose, the General Assembly has, in this instance, adopted the method of permitting wholesalers to fix minimum prices at which each brand of liquor may be sold at retail. Price fixing is well recognized as a method reasonably suited to effectuate such a purpose and, therefore, is not a violation of due process. * * * Clearly, the act which requires wholesalex's as a condition of doixxg business ixi this state to schedule minixmxm prices at which their brands of liquor may be sold and prohibits permittees from selling at retail for less than those prices is within the police power of the state.” Schwartz v. Kelly, 140 Conn. 176, 99 A.2d 89.4 (Emphasis supplied.)
In the light of the above jurisprudence and evidence of record, we conclude that the pux'pose of temperance, urged by appellant Board to be a purpose of Act 290 of 1964 (the wisdom and appropriateness of which does not concern us), has a direct relationship with a minimum price control act. In other words, there is a direct relationship between the purpose— curtailing the consumption of liquor — and the means adopted to accomplish it. Appellant Board well states in brief:
“As a result of the ruinous competitive practices at the local level in the industry, the industry had become demoralized, chaotic, and unstabilized. An effort by the legislature regulating pricing would surely tend to stabilize, rebalance the industry, and bring about an ordexdy market, so as to foster temperance in consumption. One may say that no matter what price alcoholic beverages are sold, people will continue to buy them. This is true, but they will not buy as much of them, and if the [157]*157idea of a bargain can be separated from the purchase of such beverages, much temperance will be fostered in these people.”
“Under familiar principles of constitutional law, the validity of a statute is presumed. It is the duty of the court to uphold a statute unless it clearly violates the organic law. Any doubt must be resolved in favor of the validity of a solemn expression of the legislative will.” Police Jury of Parish of St. Charles v. St. Charles Par. Waterworks Dist. No. 2, 243 La. 764, 146 So.2d 800. See, Buras v. Orleans Parish Democratic Executive Com., 248 La. 203, 177 So.2d 576; Schwegmann Bros. Giant Super Markets v. McCrory, 237 La. 768, 112 So.2d 606. It is also a familiar principle of constitutional law that one who attacks the constitutionality of a statute has the burden of showing by clear and cogent evidence that the statute is unconstitutional. Kansas City Southern Railway Company v. Reily, 242 La. 235, 135 So.2d 915; Interstate Oil Pipe Line Co. v. Guilbeau, 217 La. 160, 46 So.2d 113; 16 C.J.S. Constitutional Law § 99, p. 388. Price control acts are not per se unconstitutional. See, Pickerill v. Schott, Fla., 55 So.2d 716, Gipson v. Morley, 233 S.W.2d 79, 30 Am.Jur., Intoxicating Liquors, Sec. 36, p. 550; Schwegmann Bros. Giant Super Markets v. McCrory, supra; Louisiana Wholesale Distributors Ass’n v. Rosenzweig, 214 La. 1, 36 So.2d 403. The burden herein rested upon the plaintiffs to show the unconstitutionality of Act 290 of 1964. We do not find that they have met their burden; in fact, their testimony reflects that they have experienced somewhat of a drop in sales since the adoption of Act 290; however, the evidence does not reflect that they will be put out of business, nor does it reflect that the effect of the Act is confiscatory. In our opinion, a drop in sales tends to show that some temperance has been accomplished.
We conclude that Act 290 of 1964 is reasonable and that it is a valid exercise of the legislative will under its police power for the protection of the safety, welfare, health, peace, and morals of the people of the State of Louisiana. Its minimum price provisions, as stated supra, are definitely related to the purpose which the Act seeks to accomplish. Act 290 of 1964 violates neither the due process clause of the Louisiana State Constitution nor the Fourteenth Amendment to the United States Constitution.
For the reasons assigned, the judgments of the trial court in these consolidated cases are reversed and set aside; the suits of plaintiffs are dismissed at their costs.