The endeavor to secure favorable recognition by the courts of agreements looking to the maintenance of resale prices, unaided by positive legislative enactment, may be said to have culminated in Dr. Miles Medical Co. v. John D. Park Sons & Co., 220 U. S., 373, 55 L. Ed., 502, in so far, at least, as Federal action was concerned. In that case such contracts were held to be invalid at common law and under the Sherman Anti-Trust Act.
The opinion in that case has been criticized for its want of reality in approach — in not making a sufficient analysis of economic conditions involved in the factual situation presented, in which it was thought there might be found some basis for exception to the legal categories applied. Harvard Law Review, Yol. 49, p. 811; Kale’s “Contracts and Combinations in Restraint of Trade,” ch. 4; “The Maintenance of Uniform Resale Prices,” 64 U. of Pa. L. R., 22. In this connection see dissenting opinion of Justice Holmes.
If the transfer included no more than a mere commodity, involving nothing in which the seller had any further property or interest, the doctrinal aspects of voluntary sale might be satisfied in the expression of the court: “The complainant having sold its product at prices satisfactory to itself, the public is entitled to whatever advantage may be derived from competition in the subsequent traffic.” But the fact is that the producer, along with the commodities sold, must, perforce, permit the use of the good will'of his business and his brand, and also their abuse, if the law can go with him no further. He is under the compulsion to sell under inadequate protection or withdraw from the market altogether. This good will is as much property as is coal or pig-iron or wheat, subject to audit, appraisal, taxation, purchase and sale, and is the most valuable asset of many businesses. But, unlike the tangibles mentioned, it is vulnerable to assault through the brand which symbolizes it, since it is built up principally through reputation and may be destroyed by its loss.
But the Dr. Miles Medical Co. case, supra, dealt only with contract and did not discourage legislative action in reaching the desired result. *169Such, statutes have been enacted in most of the states, at least foxty-three in number. As these came up for review there followed, of necessity, a re-orientation of the subject in the courts; consideration was shifted from the validity and effectiveness of contract to the power of the states to enact laws having a like purpose and effect. These laws are similar in expression and practically identical in principle and have been sustained uniformly by the courts of last resort in the respective states of enactment, where tested. The single exception our research discloses, is found in Bristol-Myers Co. v. Webb's Cut Rate Drug Co., 188 So., 91 (Fla.). There the act was stricken down because it did not conform to section 16, Article III, of the Florida Constitution, in that the text of the law was not disclosed in the title. Those which have reached the Supreme Court of the United States have been upheld. Max Factor & Co. v. Kunsman, 5 Cal. (2d), 446, 55 P. (2d), 177, 299 U. S., 198, 81 L. Ed., 122; Pyroil Sales Co. v. The Pep Boys, etc., 5 Cal. (2d), 784, 55 P. (2d), 194, 299 U. S., 198, 81 L. Ed., 122; Seagram Distillers Corp. v. Old Dearborn Distributing Co., 363 Ill., 610, 2 N. E. (2d), 940, 299 U. S., 183, 81 L. Ed., 109, 106 A. L. R., 1476 (see annotations); Houbigant Sales Corp. v. Ward’s Cut Rate Drug Store, 123 N. J. E., 40, 196 Atl., 683; Bourjois Sales Corp. v. Dorfman, 273 N. Y., 167, 7 N. E. (2d), 30, 110 A. L. R., 1411; Weco Products Co. v. Reed Drug Co., 255 Wis., 474, 274 N. W., 426, are typical and leading cases. These by no means exhaust the list.
The Illinois Fair Trade Act, identical in many respects with the North Carolina Law, and similar in principle throughout, was upheld in Old Dearborn Distributing Co. v. Seagram Distillers Corp., 292 U. S., 183, 81 L. Ed., 109, 106 A. L. R., 1476, and the opinion of the Court, per Justice Sutherland, distinguishes the Dr. Miles Medical Co. case, supra, and pictures it as forecasting judicial approval when the Court should have before it appropriate legislation.
Courts were quick to realize that the enactment of Fair Trade Acts rendered obsolete the reasoning of many of the prior decisions. Formerly, in the absence of legislative determination, most courts had pronounced such trade agreements contrary to public policy. But, under the Fair Trade Acts, the public policy of such agreements received express approval from the legislatures. No longer were the courts compelled to face the difficult task of determining public policy. The task of the courts became the relatively simple one of deciding whether legislatures have power to validate resale price maintenance contracts.
But in some important respects the final protection accorded to trademarked goods marks a more fundamental change in attitude than might be involved in a mere acceptance of a statutory declaration of public policy — a break with accepted theory in which many of the stricter *170doctrines now urged upon us baye been modified or abandoned. It is simply one of those situations in the law which, with some emphasis, marts today from yesterday. Not that the change in the attitude of the courts has been arbitrary — on the contrary, the intervening period has been one of rational adjustment, in which we are compelled to recognize a degree of perpendicular thinking as contrasted with the parallelism of precedent, which, ordinarily, rides decorously with the stream and, dispensing with unnecessary judicial travail, nicely carries the burden of decision. In such a broad field the effect of judicial policy, inevitably developed, cannot be ignored. In a number of jurisdictions resale price contracts had been upheld, but there is no doubt that Dr. Miles Medical Co. v. John D. Park Sons & Co., supra, represented the prevailing judicial attitude toward the subject. The dissenting opinion of Justice Holmes in that case put the spot light on the pivotal principle: “The most enlightened judicial policy is to let people manage their own business in their own way, unless the ground of interference is very clear.”
A statement of the situation which invited this reaction suggests the basic principles of court approval. “There is nothing immoral in resale price maintenance. It is one of those policies that happen to be arbitrarily prohibited by the Government. The whole foundation of trade is in maintaining stabilized prices. While it may be to the temporary advantage of a department store to increase its own sales of unbranded merchandise by using trade-marked merchandise as a leader at a cut price, yet the ultimate repercussions on commerce are of the most serious character. This has resulted in grave injury to the development of trade-marked merchandise upon which the country’s commercial scheme of doing business has been largely founded. Trade-mark merchandising means merchandise that is extensively advertised, and being extensively advertised, must live up to high quality. There must be quantity production to support the expenditure of advertising with a correspondingly relatively low, but stabilized price. This gives labor steady and gainful employment, results in large purchasing power and places the stamp of identification of the trade-mark of the manufacturer on the goods with the resulting requirements of integrity in production and honor in selling for public protection. To permit the ultimate distribution of such merchandise to wreck the entire foundation of this business structure for a temporary personal profit is a shortsighted policy that should be condemned and prohibited in the strongest terms.” Toulmin, Trade Agreements and the Anti-Trust Law, 1937. Statements and counter statements make a voluminous record. See hearings before Committee on Interstate and Foreign Commerce in House of Representatives on H. R. 13,305 (63rd Congress, 2nd and 3rd Sessions) ; H. R. 13,568 (64th Congress, 1st and 2nd Sessions).
*171Tbe courts may not dispute with, the Legislature any conclusion it has reached upon evidence pro and con, with regard to the verity of the economic conditions thus pictured. They are only concerned with finding whether these furnish reasonable grounds for the distinctions on which the statutes are made to depend. There seems to be little divergence of opinion on this point.
Outstanding in the rationale of the cited cases upholding Fair Trade Acts are certain key principles: The validity of the distinction between the trade-marked commodity and a commodity as such in relation to freedom of trade; the persisting property right in good will and brand after the producer has parted with the commodity; the involvement of these in resale transactions, and the paramount necessity of their protection; and the limitations in the act itself preserving competition.
We have made this approach to the case at bar because we recognize as true that: “upon this point a page of history is worth a volume of logic.” Mr. Justice Holmes in New York Trust Co. et al. v. Eisner, 256 U. S., 345, 349, 65 L. Ed., 963.
The later enacted Miller-Tydings Act (August, 1937), which amends the Sherman.Anti-Trust Act and the Federal Trade Commission Act (section 5), by removing resale price contracts of the nature here considered from the prohibition of the Sherman Act and declaring them not to be an unfair method of competition, renders academic any discussion of the effect of Old Dearborn Distributing corporation v. Seagram Distillers Corp., supra, on interstate transactions, if it has any. But in sustaining the Illinois Fair Trade Act in that case the Court dealt with many questions arising under the Fourteenth Amendment and Due Process Clause of the Federal Constitution practically identical with those which have been raised in the ease at bar under our own Constitution, and resolved them against the contentions of the defendant.
The first in importance of these questions concerns the Anti-Monopoly Clause of the State Constitution: Does the North Carolina Fair Trade Act create or tend to create a monopoly such as is declared in Article I, section 31, of the Constitution, to be against-the genius of a free people and not to be allowed?
The Constitution speaks of monopoly — the accomplished fact — and not of the means by which it may be created. As to the former, when it is shown to exist’, there can be no difference of opinion as to the duty of the Court; as to the latter, it is obvious that discriminating intelligence is required to draw the line beyond which private activity encroaches upon public convenience. A similar difference exists between the Sherman Anti-Trust Law and the Clayton Amendment. The former deals with consummated combinations and considers the purpose, reasonableness, and effect of agreements, whether offending the law. The *172latter denounces acts which Congress assumes may lead to such monopolies and is made effectual by the simple process of tagging. Thornton, “Combinations in Restraint of Trade,” p. 836; Standard Fashion Co. v. Magrane-Houston Co., 258 U. S., 346; Hopkins v. United States, 171 U. S., 578, 42 L. Ed., 290; United States v. Standard Oil Co., 17 Fed., 177, 221 U. S., 1, 55 L. Ed., 619.
What is monopoly? Definitions in this field are evolved under the necessity of administration and the term has been uniformly regarded as descriptive rather than precisely definitive. Without reference to the historical common law definition, this Court, in S. v. Coal Co., 210 N. C., 742, 747, has given, by adoption and approval, two consistent definitions which we repeat: “A monopoly consists in the ownership or control of so large a part of th^ market supply or output of a given commodity as to stifle competition, restrict the freedom of commerce, and give the monopolist control over prices.” Black’s Law Dictionary (3d Ed.), p. 1202. “In the modern and wider sense monopoly denotes a combination, organization, or entity so extensive and unified that its tendency is to suppress competition, to acquire a dominance in the market, and to secure the power to control prices to the public harm with respect to any commodity which people are under a practical compulsion to buy.” Commonwealth v. Dyer, 243 Mass., 472. Definitions, similar in content, are numerous.
Restraint of trade is, in many instances, no doubt, an instrument of monopoly, but it is not monopoly. Both the economic and legal history of the subject refute the assumption that any and all restraint either constitutes monopoly or necessarily leads to it. Max Factor & Co. v. Kunsman, supra.
The self-limiting character of the restrictions imposed by the act under review takes it out of the class of restraints which may lead to monopoly. If we concede that the term “monopoly,” as used in the Constitution, covers substantial and comprehensive general control of commerce in necessary commodities, to the injury of the public, and that this may result from an unreasonable restraint of trade, we are still far from bringing the statute within its necessary condemnation, since it is lacking in the outstanding essentials of monopoly as above defined, a sufficiently extensive control of general commerce in such commodities and the resulting injury to the public; nor does it deny to any member of the public a free and equal opportunity to do anything which he might theretofore have done as a matter of common right. The freedom to do as one may wish with the good will, brand, or trade-mark of another has never been conceded by the law.
The agreements authorized by the law are vertical — between manufacturers or producers of the particular branded commodity and those *173handling the product in a straight line down to and including the retailer; not horizontal, as between producers and wholesalers or persons and concerns in competition with each other in dealing with like commodities. The law does not authorize cross agreements between competitors. Whatever agreements are permitted, all face one way; they apply only to commodities produced by the manufacturer, bearing his trade-mark, brand, or name, and then only if they are in free and open competition with commodities of the same general class produced or distributed by others. The incidence of the law on trade, therefore, affects only that portion of the commodity in which the producer has already a lawful monopoly of ownership, and which goes into distribution in a volume which may be fairly measured by the popularity which the good will and identifying name have achieved, but which can never amount to the whole. Old Dearborn Distributing Co. v. Seagram Distillers Corp., supra; Joseph Triner Corp. v. McNeil, 363 Ill., 559, 2 N. E. (2d), 929, 104 A. L. R., 1435; Max Factor & Co. v. Kunsman, supra.
The proportion which the commodity affected bears to the whole is not a matter for our consideration where competition is substantial; but it must be remembered that the act applies not merely to medicinal preparations, where producers may be few, but to all commodities identified by name or brand, as to which, in many instances, competitors must be numerous. In United States v. American Tobacco Co., 221 U. S., 104, 55 L. Ed., 663, and in United States v. Standard Oil Company of New Jersey, supra, the Government had to he content with breaking up these monopolies into a comparatively few competitive concerns.
It is not conceivable how any horizontal restriction of trade can be effected through the .provisions of the statute. The restraint intended does not apply to the commodity, in its generic sense, upon which the manufacturer has expended his care and skill — it is the commodity plus the brand which identifies it, guarantees its quality, and is symbolic of the good will which rightfully belongs to the manufacturer. It is this alone which the statute desires to protect, and to the piratical use of which it applies restraint. As stated by Justice Sutherland in Old Dearborn Distributing Co. v. Seagram Distillers Corp., supra: “The ownership of the good will, we repeat, remains unchanged, notwithstanding the commodity has been parted with. Section 2 of the act does not prevent a purchaser of the commodity bearing the mark from selling the commodity alone at any price he pleases. It interferes only when he sells with the aid of the good will of the vendor; and it interferes then only to protect that good will against injury. It proceeds upon the theory that the sale of identified goods, at less than the price fixed by the ownership of the mark or brand is an assault upon the good will and *174constitutes what the statute denominates ‘unfair competition.’ See Liberty Warehouse Co. v. Burley Tobacco Growers Assn., 276 U. S., 71, 91-92, 96-97. There is nothing in the act to preclude the purchaser from removing the mark or brand from the commodity — thus separating the physical property, which he owns, from the good will which is the property of another' — -and then selling the commodity at his own price, provided he can do so without utilizing the good will of the latter as an aid to that end.”
The common law emphasis on forestalling, regrating, engrossing and conspiracy to raise prices must not lead us to infer that the sole objective of public policy was to obtain the lowest possible price to the consumer on every commodity. That is both an economic fallacy and a misconception of law. The public is more interested in fair and reasonable prices which preserve the economic balance in advantages to all those engaged in the trade, with due regard to the consuming public, than it is in securing the lowest obtainable prices, when the inevitable tendency is to degrade or drive from the market “articles which it is assumed to be desirable that the public should be able to get.” (Justice Holmes, dissenting in the Dr. Miles case.) On this phase of the subject the Supreme Court of the State of Washington, in Fisher Flour Milling Co. v. Swanson, 76 Wash., 649, 137 Pa., 144., 151, observed: “Finally it seems to us an economic fallacy to assume that the competition which in the absence of monopoly benefits the public is competition between rival retailers. The true competition is between rival articles. Fixing the price on all brands of high grade flour is a very different thing from fixing the price on one brand of high grade flour. The one means destruction of all competition and of all incentive to increased excellence. The other means heightened competition and intensified incentive to increased excellence.” Our own laws implementing this section of the Constitution recognize that price-cutting, not born of fair or normal competition, may indeed be piratical, and a dangerous step toward monopoly. C. S., ch. 53, sec. 2563; S. v. Coal Co., 210 N. C., 742, 188 S. E., 412.
No one has a vested interest in the common law. Hurtado v. California, 110 U. S., 516, 46 L. Ed., 697. The common law, proceeding ex proprio vigore, prior statutes, and public policy growing out of them, all must yield to the superior authority of the later enacted statute. Nor do we think that any contribution which the common law has made to the Constitution has given to the term “monoply” a rigor inconsistent with the foregoing reasoning. Any definition of “monopoly” which may be built up by aid of the common law rules against restraint of trade must carry with it those exceptions favoring agreements for the protection of good will — which had become an established doctrine of the *175common law long before our first Constitution was adopted — and the concomitant principle that the reasonableness of the restraint must be measured by the adequacy of the protection necessary, even though it extends to the limits of the kingdom, if the good will has become national in extent. Thornton, Combinations in Eestraint of Trade, pp. 60-71; Leather Cloth Co. v. Lorsant, L. R. 9, Eq. 345, 39 L. J., ch. 62; Maxim Nordenfeldt v. Nordenfeldt, L. R. 1, ch. 630, 651, 67 L. T., 177; Aff. A. C., 535, 63 L. J., 908, 71 L. T., 489; Benjamin on Sale, 7th Ed., pp. 536-546. It is as well to observe that while these cases relate to the protection of good will upon alienation, the same principle may fairly be extended to the protection of that good will while in the enjoyment of the original owner. There is no sound reason why it should be called into service only when it might serve as an obituary to his possession, or merely as a more effectual means of delivery. The real purpose is to protect the owner of the good will against assault from the most dangerous quarter.
In this and other jurisdictions this doctrine of the common law has been invoked not infrequently to modify the rigor of anti-monopoly statutes and to permit interpretation in the light of reason. Mar-Hof Co., Inc., v. Rosenbacker, 176 N. C., 330, 97 S. E., 169; Morehead Sea Food Co. v. Way & Co., 169 N. C., 679, 86 S. E., 603.
The inconsequential margin over which the courts have battled is apparent on comparing the utmost this law can do with what the courts have already approved. The cumbersome and ineffective device of agency contracts fixing prices of retail sale have usually been upheld by the courts on the alter ego doctrine, which makes the producer the final seller. United States v. General Electric Co., 212 U. S., 476, 71 L. Ed., 362. The doctrine itself is impeccable, but the reality of the device when applied to a distribution which the parties probably regard as final between themselves, and certainly desire to be so, is open to challenge. The point is that such a transaction has precisely the same incidence on the freedom of trade as does the present act, since it monopolizes exactly the same commodity — not merely in quantum,, but in physical identity — and is nearer to monopoly in principle because it concerns the commodity as such. It illustrates the triumph of form over substance and leads to the thought that the producer always might have had the relief sought if he could come into court clothed in more formal and traditional habiliments.
Perhaps the most direct answer to the charge of monopoly made against this statute is contained in the provisions of the statute itself, under which it automatically ceases to operate where there is no competition. In a late case, Goldsmith v. Johnson & Co., Maryland Court of *176Appeals, 28 June, 1939, decided since the case at bar was argued before this Court, this was thought to be a sufficient answer, and with this we agree.
We are not unmindful of the constitutional imperatives upon which the defendant insists. But first it is necessary to understand what the Constitution requires. It is as little as we can do, out of respect to its framers, and the obvious purposes of such an instrument, to regard it as a forward-looking document, anticipating economic as well as political conditions yet to emerge. It is not a statute. Its concepts worthy of surviving are fundamentally stated and must be sufficiently generic and comprehensive to allow adjustment to the current needs of humanity. In this way only can we interpret it in terms of social justice so necessary to maintain its usefulness and to continue it in the public respect. The Anti-Monopoly Clause of the Constitution is couched in terms to meet this requirement. Like other clauses similarly phrased, it expects implementation by statute. Its terms are broad enough to afford recognition of the principles we have discussed, and the law is safely within the constitutional admonition.
Article I, section 17, of the Constitution provides: “No person ought to be . . . disseized of his freehold, liberties or privileges . . . or in any manner deprived of his life, liberty, or property but by the law of the land.” It is contended that the statute delegates the power to fix the resale price on another’s property, or directly or mediately fixes the price on a commodity at private sale with a like effect, in violation of this section. This is the objection repeatedly raised in the above cited cases under the similar provisions of the Federal Constitution. It has not received favorable consideration by the courts. Old Dearborn Distributing Co. v. Seagram Distillers Corp., supra; Bourjois Sales Corp. v. Dorfman, supra; Pyroil Sales Co. v. The Pep Boys, supra.
The restriction is not imposed after the acquisition of the property, and is not in derogation of an existing or established right. Under the statute it was a condition that had already attached to the property. It was known to the prospective purchaser, and he was under no obligation to assume it. Morally and legally he is presumed to have accepted the condition by his voluntary act of purchase.
As to the delegation of power, we do not understand that it is contended there is any delegation of the legislative function. On the face of it such a contention is untenable. The statute was complete when it left the hands of the Legislature. It required no person or group of persons or other external agency to further authorize it or put it in force. Weco Products Co. v. Reed Drug Co., supra.
But the law “delegates” nothing. At the most it lifts the ban supposed to exist by virtue, largely, of public policy, against contracts fixing *177tbe resale price, and permits this to be done by contract between the manufacturer or producer and the purchaser, and does this partly in recognition of the continuing property right of the producer in the good will of his business which is involved in the transaction through the use of the symbolizing brand and partly in the recognition of the rights of others, including the honest purchaser, who expects to put these to a legitimate use in the resale of the branded commodity and loses money when it is cheapened by use as a bait for other sales. It is made binding on a purchaser who buys with a knowledge of the condition attached to the purchase.
“The statute is not a delegation of power to private persons to control the disposition of the property of others, because the restrictions already imposed with the knowledge of the prospective reseller runs with the acquisition of the purchased property and conditions it.” 11 Am. Jur., p. 933; Old Dearborn Distributing Co. v. Seagram Distillers Corp., supra; Joseph Triner Corp. v. McNeil, supra.
The resale price is not fixed on any commodity, as such, and with respect to these the traditional rules demanding freedom of trade remain uninvaded. It is placed only on the branded commodity; and this Court, with the great majority of those which have preceded us in passing on similar laws, is of the considered opinion that the distinction is valid. Fixing the price, usually the most important incident of bargaining, and still so when the parties are equally related to the subject of the transaction is, in this instance, merely ancillary to the purpose of the law, which is to protect both the producer and the public — the one with respect to his good will, the other with respect to the quality and integrity of a desirable product. The restriction is imposed, as we have said, more with respect to the good will and brand than to the limited quantity of product, as such, which passes in the sale. A frank recognition of their relative importance demands that the minor consideration should give way, ut res magis non pereat. Laws protecting trade-marks, trade-names and brands from piracy are of no avail whatever when the abuse of them by a purchaser of branded products is uncontrolled. The producer is less hurt by pilfering than he is by sabotage.
“There is nothing sacrosanct about price.” The right of the owner to fix a price on any commodity he sells is not absolute. To illustrate, if that were true the Second Section of the Robinson-Patman Amendment, standardizing prices by prohibiting discriminations, would array that act against both the Fourteenth and the Fifth Amendments to the Federal Constitution. It is a right created by law and subject to control by law when necessary to the just and orderly administration of government, with due regard to constitutional guaranties. Price restrictions *178stand upon tbe same challenge before the law as any other restraint upon the use of property, and are concerned with the same constitutional provisions.
Nebbia v. New York, 291 U. S., 502, 78 L. Ed., 940, deals with governmental price-fixing and the fixing of that price on a general commodity having nothing to do with trade-mark or good will. But even so, the Court declined to limit the formula “affected with the public interest” to any business particularly constituted, as, for example, public utilities and the like, and held that a business was “affected with the public interest” when, for adequate reason, it was subject to control for the public good, making the final test to be whether the law was arbitrary in its operation and effect. See analysis of this case in Toulmin, Trade Agreements and the Anti-Trust Laws, p. 103. The marked tendency of the courts to discard the formula altogether as not being sufficiently definitive to distinguish the field of application is noted in the annotation to Miami Laundry Co. v. Florida Dry Cleaning and L. Bd., 119 A. L. R., 956, 985. The subject seems of little application here, since the same court in Old Dearborn Distributing Co. v. Seagram Distillers Corp., supra, held that the Illinois act, which, as we have stated, is practically identical with ours at this point, does not constitute governmental price-fixing or, indeed, price-fixing in any sense offensive to the Constitution. By specific reference it distinguished from the case under consideration those cases referring to price restriction as an unconstitutional invasion of property right, holding that they had no application to the sale of branded commodities protected under the act. Old Dearborn Distributing Co. v. Seagram Distillers Corp., supra, at page 192.
Such a restriction is not confiscatory unless it is unreasonable or contrary to the principles of the Constitution reasonably interpreted; and one who invokes the aid of the Constitution in this respect must show that he has a title free from condition, at least with respect to the supposed invasion. This is not the position of the defendant.
We may concede that such a restriction upon the sale of a quantity of a commodity which has no distinction other than it belongs to the seller, where the seller parts with everything he has in it, and the commodity merges indistinguishably in the stream of trade, has always been considered against public policy, unlawful, confiscatory, unconstitutional, or, to sum it up in traditional style, “odious.” But surely we have come a long way on this road since the John Dyer case (2 Henry 5, 5b, pl. 26), when the irate judge dismissing an action on a bond given upon a contract in partial restraint of trade said of the plaintiff: "Ft pur Dieu si le plaintiff fu icy, il ira al prison tanque il ust fait fine au roy.” Now the courts permit the law to do its own frowning, thus eliminating as a factor of decision the seductive influence of judicial pietism. Not *179arbitrarily, but on principle, tbey recognize tbe wide difference between tbe sale of a general commodity, around wbicb tbe rules of law were originally built up, and tbe sale of a trade-marked commodity, tbe very essence of wbicb is tbe reputation of tbe product, tbe good will of tbe producer, tbe protection of wbicb is necessary botb to bim, to tbe bonest retailer, and equally important to tbe public, since under our bigbly developed long distance system of production and distribution it often affords tbe only available guaranty of quality. Rabb v. Covington, 215 N. C., 572. It is no longer a matter of trend- — -tbe thing lies witbin tbe beaten path of judicial decision. ¥e are free to say that if tbe matter bad been presented to us independently, without tbe aid of these authorities, we would not be disposed, in tbe face of tbe statute, to further adhere to a purely doctrinary point of view wbicb now makes no contact with tbe subject otherwise than at very minor points of consideration, if at all. Forcing new situations into old categories is like putting new wine into old bottles. It strains tbe bottle.
In our opening analysis we stress tbe fact that tbe producer and seller of a branded commodity, along with tbe commodity itself, transfers tbe use of tbe good will, wbicb use is made effectual by tbe use of tbe distinguishing brand or trade-mark. Tbe quantity of commodity corporeally passed by tbe sale is always a relatively unimportant item, but tbe entire good will of tbe producer’s business, with all of its force and effectiveness, is put behind tbe product in tbe bands of tbe retailer for use in inducing consumer purchase; and, conversely, tbe entire good will may be appropriated and prostituted by tbe cut rate dealer who uses it, not to promote tbe sale of tbe branded commodity, but to increase bis sale in other commodities. In either case tbe entire good will is involved, and in a very real, if not technical, sense subjected to a servitude. On this principle there is no sound reason why, under favoring legislation, tbe parties should not be permitted to bargain with reference to tbe conditions upon wbicb this servitude may be imposed, and none why this may not take tbe form of an agreement as to tbe resale price, tbe maintenance of wbicb is to their mutual advantage. Some of tbe decisions find support for tbe provisions similar to those contained in Section Six in tbe principle that outside interference with such a contract is a proper subject for statutory prohibition, since, in somewhat similar circumstances, tbe Court itself has afforded relief.
In Port Chester Wine and Liquor Shop, Inc., v. Miller Bros. Fruiters, Inc., decided by tbe Appellate Division of tbe New York Supreme Court on 28 January, 1938, an action by a retail dealer against another retailer cutting resale prices was sustained under a similar act. Without deciding that particular question here, tbe situation is at least illustrative of tbe soundness of tbe law, and we may infer from tbe agreed facts here *180that a similar situation may exist among retailers who have complained to the plaintiff of the prevalence of this practice and threatened to discontinue handling the brands.
The power of the Legislature to pass a law of this nature has been questioned in view of Article II, section 29, of the Constitution, reading in part: “The General Assembly shall not pass any local, private, or special act or resolution relating to . . . regulating labor, trade, mining or manufacturing.” It is contended that the exceptive provisions of section 5 so reduce the field of its application as to make it a special act forbidden by this clause of the Constitution.
The Constitution does not prohibit the Legislature from regulating trade in any of its branches or regulating it in any particular. It merely forbids such regulation by private, special, or local law. A general law is not rendered special because there has been excepted or excluded from its operation either persons or things to which, upon reasonable classification, according to the purposes of the law, it should not be applied. Such exceptions or exclusions must be germane to the purposes of the act, be founded on reasonable distinctions, and must leave, as a properly distinguishable class, all those persons or things which in the reasonable exercise of legislative discretion ought to be included, leaving out only those persons or things which may, with the same propriety, be excluded. The classification degrades the law only when it has no basis in reasoning or, otherwise expressed, is arbitrary and capricious. This statute does not attempt to validate all contracts containing resale price agreement, and it is just as assailable as a special law on that account as it is because of its express exclusions, if classifications are to be made by its antagonists on grounds even less reasonable than those which commended themselves to the Legislature. The law was intended to apply only to contracts and sales of a certain kind which it is the business of the statute to define. It need not follow any particular formula in doing so. It must be considered as a whole and the exceptions, germane to the purpose of the act and based on recognizable and reasonable distinctions, merely form a part of the process of classification. In our opinion they are so grounded. 59 C. J., pp. 732, 735, sections 319, 322; Scarborough v. Wooten, 170 P., 743, 23 N. M., 616; State v. Atchison P. & S. F. Ry., 151 P., 305, 20 N. M., 562. The exceptions refer to conditions which the dealer is likely to experience if no such law was ever enacted, and the transactions are well outside of normal trade, to which the statute was intended to apply.
The violation of the law is made “actionable at the suit of any person damaged thereby.” Under such general authorization an action to permanently restrain defendant from the practices complained of is proper, and the agreed facts afford sufficient ground for relief.
*181It bas been suggested that the conduct of plaintiff in permitting a sale to the defendant, who refused to sign any contract fixing the resale price, is sufficient to estop it from equitable relief; but the evidence does not disclose that the plaintiff made any inducement to the defendant or gave him any reason to believe that the plaintiff intended to waive any of his rights under the law. It was optional with the plaintiff whether it obtained the contract or relied upon the statute, and the simple act of sale to defendant, without stipulating a resale price, did not carry with it an assumption that the defendant might violate the law or confer upon him the right to do so. If the law itself is valid, and we hold it to be so, it is a public statute which the defendant was bound to have in contemplation when he made the purchase.
In Lentheric, Inc., v. Weissbards, 122 N. J. Eq., 573, 195 Atl., 818, the argument was successfully made that where the plaintiff refused to sell to the defendant he was estopped in equity to assert his claim when defendant had obtained his goods elsewhere. Here we are confronted with the direct opposite of that argument. In our opinion, neither has merit.
Rather much argument was addressed to the court on the contention that defendant was making a reasonable profit on the sale of the products listed in the agreed facts. However such circumstance might affect the result on a trial for violation of some anti-trust law, where the effect on the public might be an issue, it cannot be considered here in the face of the statute, which it would completely defeat. The standard set is not one of reasonable profit, but of resale price.
Nor is relevant the fact that prices on commodities described under Class III, which have been fixed by competing distributors, are within one cent of parity. In the absence of agreement to that effect this has not been considered by this Court as sufficient even to support a charge of violating the Anti-Monopoly Statute. S. v. Oil Co., 205 N. C., 123, 126, 170 S. E., 134, and the Supreme Court of the United States is in accord. United States v. American Tobacco co., supra. This might occur through an unlawful agreement, certainly, if at all, dehors the operation of this law, or it might be the result of close competition as is now the case with the price of gasoline by the major oil companies, or it might be a case of “follow the leader,” and it is not a violation of any law to copy the prices of a competitor.
We have nothing to do with the expediency of an economic experiment. Discussions of this subject, on which thousands of articles have been written and hundreds of arguments made, has left the lawmaking bodies and most of the courts convinced that there is a field here in which the protection of private right and the promotion of the public *182welfare are not in irreconcilable conflict. Tbe statute represents an attempt of tbe General Assembly to harmonize and apply these principles. In our opinion tbe provisions of tbe Constitution called to our attention do not defeat that legislative power. Tbe propriety of its exercise is within tbe legislative discretion.
We conclude, therefore, that tbe statute under review is a constitutional and valid expression of tbe legislative will, and as such must be enforced.
Tbe plaintiff is entitled to tbe relief prayed for in its complaint and judgment in tbe court below will be entered in accordance with this opinion.
Tbe judgment is
Reversed.