LIVINGSTON, Chief Justice.
The State of Alabama, ex rel. its Attorney General, filed in the Circuit Court of the Tenth Judicial Circuit of Alabama, in Equity, its bill of complaint to enjoin Simonetti, Inc., a corporation, from violating the so-called Unfair Cigarette Sales Act (Act No. 805, Acts of Alabama 1951, effective September 11, 1951), by advertising, offering for sale and selling cigarettes at wholesale in the State of Alabama below cost (as defined in Sec. IV(k) 1 of said Act) of such cigarettes to the appellant, and with the intent of injuring its competitors and destroying, or substantially lessening, competition.
The appellant, Simonetti, Inc., interposed its demurrers attacking the constitutionality of said Act as a whole, but not the constitutionality of any specific section or sections thereof.
Appellant's demurrers were overruled and the constitutionality of said Act was sustained by the trial court. Simonetti, Inc., a corporation, appealed.
The grounds of demurrer assigned, and the briefs, are properly concentrated in the main upon the very serious question of the constitutional validity of Act No. 805, Reg. Sess.1951, Legislature of Alabama, and it now appears in the Pocket Part of the Code of Alabama 1940 as Secs. 83(1) through 83(14) of Title 57.
The bill of complaint is bottomed solely and squarely upon, and seeks to enforce, the so-called Unfair Cigarette Sales Act. Sec. 3(a) of the aforesaid Act contains the following provision:
It is clear that if the act is constitutional, the bill of complaint sufficiently alleges its violation by the appellant. It is equally clear that the demurrers interposed by the appellant raise the question of the equal protection of the law and the due process of law under the 14th Amendment of the Constitution of the United States, and also the question of whether the Act is violative of the 1901 Constitution of the State of Alabama. In our opinion, the Act is constitutional and we so hold and sustain the decree of the lower court overruling appellant's demurrers.
In its decree overruling appellant's demurrer, Honorable Robert C. Giles states as follows:
As to certain features of the case, the opinion of the learned Chancellor so well expresses the views of this Court that we adopt the following portions of his decree:
"The present bill directly alleges a dual or cumulative specific intent to `injure competititors and destroy or substantially lessen competition' and that respondent's advertising, offers to sell, and sale of cigarettes at wholesale have been `at less than cost
"As to the grounds of demurrer asserting that Section III (a) deprives complainant of equal protection of the law and denies him due process of law contrary to the Fourteenth Amendment of the Constitution of the United States, the Court is of the opinion that the demurrer is not well taken. Such probably would have been the conclusion even prior to the `new departures' in federal constitutional law of the last two decades. Rast vs. Van Deman [& Lewis Co.], 240 U.S. 342, 36 S.Ct. 37 , 60 L.Ed. 679.
"There is little room for doubt, indeed, since Nebbia vs. [People of State of] New York, 291 U.S. 502, 78 L.Ed. 940, 54 S.Ct. 505, 89 A.L.R. 1469. And see Great Atlantic & Pacific Tea Co. vs. Ervin [D.C.], 23 Fed. S[upp]. 70; Olsen vs. [State of] Nebraska, 313 U.S. 236 [61 S.Ct. 862], 85 L.Ed. 1305 [133 A.L.R. 1500], and Mora vs. Mejias [1 Cir.], 223 F.2d 814. In the Mora case, the First Circuit said that, insofar as the Fourteenth Amendment of the Federal Constitution is concerned, it is now undeniable that a state in the exercise of its police power may regulate the prices to be charged by an industry if its legislature determines that the public interest requires such regulation.
"The Robinson-Patman Act [15 U.S.C.A. §§ 13, 13a, 13b, 21a] prohibits sales at unreasonably low prices for the purpose of injuring and destroying competition. It would be unlikely that it would be held that the states, which have a general police power, could not similarly legislate upon a subject which Congress has so dealt with, under a police power merely concomitant with its delegated authority to regulate interstate commerce.
"It is noted that the demurrer raises no question as to a possible collision between this Act and federal anti-trust legislation such as the Sherman Act [15 U.S.C.A. §§ 1-7, 15 note], under the Commerce and Supremacy clauses of the Federal Constitution.
"The question of the validity of the basic section of this legislation under the Constitution of Alabama, however, is a different and much more difficult matter. Many states have enacted legislation similar in principle. Varied and diverse conclusions have been reached by the courts of other states upon the validity of some of the auxiliary sections of these `Below Cost Sales' Acts, and certain applications of the Acts have been held unconstitutional. See (e. g.) Cohen vs. Frey & Son (Md. 51) [197 Md. 586], 80 Atl.2d 267.
"The only decision which the Court has been able to find which strikes down the Act fundamentally and entirely is Williams vs. Hirsch (March 15, 1955—Georgia) [211 Ga. 534], 87 S.W.2d 70 [87 S.E.2d 70], which was made to turn upon a finding that the merchandising of cigarettes was not a business affected with the public interest. The opinion cites a decision wherein the Supreme Court of Georgia had previously held unconstitutional the Milk Control Board law of that state [Laws 1937, p. 247 as amended]. Harris vs. Duncan [208 Ga. 561], 67 S.E.2d 692. The essential validity of this sort of legislation seems to have
"Article I of the Alabama Constitution of 1901 sets forth the Bill of Rights, and Section 1 declares:
"The last two sections of the Bill of Rights are as follows: Section 35 provides:
"Section 36 provides:
"Section 103 of Article 4 of the Constitution provides that:
"In City [Council] of Montgomery vs. Kelly, 142 Ala. 552, 38 So. 67 [70 L.R.A. 209], the Bill of Rights of the State Constitution was considered to protect the right of the citizen to pursue any harmless occupation, and to conduct the business in his own way, so long as his manner of conducting his business did not offend public morals and work an injury to the public, even though his methods of doing business might have a tendency to draw trade to him to the detriment of his competitors, and the Court held that the City might not impose a discriminatory license exaction upon a person employing trading stamps to advertise his business by the offering of such small `gratuities.' No question of monopoly was involved, or of intentional injury to others. The ordinance merely sought to regulate competition and competitive methods of doing business as such.
"In State vs. Goldstein, 207 Ala. 569, 93 So. 308, 310, the Court only considered and held unconstitutional, as an abuse of the police power and offensive to the state Bill of Rights, that portion of the Act relating to the prevention and punishment of profiteering as defined in section 2 thereof [Acts 1919, p. 1088]. Of course the exaction of exorbitant prices for a commodity tends to invite, rather than stifle, competition, and the Court's opinion recognized the fact that the anti-profiteering provisions of the Act of September 30, 1919, were dissociated from such monopolistic situations as were dealt with in other portions of the legislation.
"Franklin vs. State, 232 Ala. 637, 169 So. 295, upholding the validity of the Milk Control Act [Gen.Acts 1935, p. 204], clearly illustrates the role of the quantity of `affectation with a public interest; in price legislation. In that case, the Act expressly declared that the dairy industry was one
"In [City of] Mobile vs. Rouse, 233 Ala. 622, 173 So. 266, 11 A.L.R. 349, the Act [Gen.Acts 1935, p. 746], sought to confer upon municipalities power to fix minimum prices for the services of barbers and dry cleaners, with a view to prevention of `ruinous price cutting' and prevention of widespread unemployment and economic distress. It was also sought to be justified as a measure for the protection of health, and for the purpose of coping with an economic emergency. It involved an outright fixing of prices, in terms of dollars and cents, under section 2 of the ordinance. The Court held the statute and ordinance unconstitutional as fixing prices for personal services which were not affected with public interest. Presumably the prices to be fixed included an element of what was thought to be a `fair profit.'
"Most important for consideration is the case of Alabama Independent Service Station Association vs. McDowell, 242 Ala. 242 , 6 So.2d 502, decided in 1942, long after the decision in the Nebbia and Franklin cases. It was a declaratory judgment at law involving the validity of an Act of 1939 [Gen.Acts 1939, p. 972], Section 1 of which required the posting of prices of gasoline and oil for motor vehicles, and Section 2 of which prohibited sale thereof except at the exact price posted, and prohibited discounts, premiums, or gratuities calculated to effect a sale of such products for other than the posted price. The act declared no legislative purpose to prevent monopoly and required no intent to injure or destroy competition. It in nowise undertook to fix prices, and apparently the dealers subject to it could fix any price whatsoever they chose upon the product so long as they posted same and sold for that exact price without the discounts or gratuities which were prohibited. As this Court understands the Act of 1939, a dealer might lawfully post a price of one
"The Court proceeded to hold that the merchandising of motor fuel was not a business affected with a public interest, that the legislation did not relate to the general welfare, but to the welfare of the particular class of dealers represented by the plaintiffs, that such class of legislation is outside the scope of the police power, and that section 2 of the Act violated sections 1 and 35 of the Constitution of Alabama 1901.
"This holding indicates to this Court that the Franklin case does not embrace the outermost extent of all the pronouncements contained in the Nebbia opinion. Certainly the merchandising of petroleum products is a matter which vitally affects our present `civilization on wheels.' It would do little good to conserve the supply of milk in the public interest if it could not be collected, marketed, and delivered by motor vehicles. And certainly there would be more adequate reason for the legislature to regulate merchandising practices in the field of the petroleum industry than in the merchandising of cigarettes. For these reasons, the Court is of the opinion that the Act now under consideration cannot be sustained solely upon the theory that the business which it concerns is `affected with a public interest.' It is interesting to note that the Court in the McDowell case did not pronounce the Act invalid under the Federal Constitution, thus tacitly, perhaps, recognizing the divergence in the `public interest' concepts exemplified in the McDowell and Olsen cases.
"In Lisenba vs. Griffin, 242 Ala. 679, 8 So.2d 175, the Supreme Court held that a municipal ordinance authorizing a board to fix minimum prices for the services of barbers was void, that the City was without authority to declare the business to be affected with a public interest, such being inconsistent with the general law, and that it undertook to regulate a private business contrary to Section 1 of the Alabama Constitution 1901.
"In Alabama Independent Service Stations Association, Inc., vs. Hunter, 249 Ala. 403, 31 So.2d 571, decided in 1947, our unanimous Supreme Court, through the opinion of Mr. Justice Lawson, again held the gasoline premium and discount statute unconstitutional, it having been reenacted without substantial change subsequent to the McDowell decision. The submission
"The Court conceives that there is a substantial and determinative difference between the `price posting' legislation of the McDowell and Hunter cases, and the `sales below cost' legislation now presented. The McDowell opinion cites, to the proposition that such legislation was outside the scope of the police power, New Jersey, Massachusetts, Michigan and Connecticut decision, courts of three of which states have subsequently taken a different view of `sales below cost' statutes.
"In Lane Distributors vs. Tilton et al. [7 N.J. 346], 81 A.2d 786 (1951), the Supreme Court of New Jersey, though striking down the Unfair Cigarette Sales Act [N.J.S.A. 56:7-1 et seq.] because of the invalidity of an inseparable section, clearly considered that the Act was not a price-fixing statute, and was essentially free of constitutional objections, stating:
"In Fournier vs. Troianello [332 Mass. 636], 127 N.E.2d 167 (1955), the Supreme Court of Massachusetts upheld the Act [M. G.L.A. c. 93 §§ 14E-14K] prohibiting the sale at retail of any item of merchandise at less than cost with the intent to injure competitors or destroy competition, distinguishing the McBride case [Sperry & Hutchinson Co. et al. v. McBride et al., 307 Mass. 468, 30 N.E.2d 269, 131 A.L.R. 1254] (cited in the McDowell opinion) with the bare statement that `the case before us is obviously quite different.'
"As to Michigan, a divided court [People v. Victor, 287 Mich. 506, 283 N.W. 666, 124 A.L.R. 316] held unconstitutional Section 6 of Michigan Act No. 282, 1937, which section forbade the giving of premiums in connection with retail sales of gasoline for the purpose of injuring or destroying competitors, and this case is cited with approval in the McDowell opinion. But it is interesting to note that the same Michigan enactment, in Section 4, also prohibited sales below cost of bakery and petroleum products with intent to injure or destroy the business of a competitor, and is apparently still the existing statutory law of Michigan and has not been brought before the Supreme Court of that state for review in the more than eighteen years of its existence.
"And as to Connecticut, in Carroll vs. Schwartz, et al. [127 Conn. 126], 14 Atl.2d 754, the Supreme Court of Errors of Connecticut upheld the basic provision of an Act prohibiting sale of any item of merchandise at less than cost with intent to injure competitors or destroy competition [Gen.St.Supp.1939, §§ 922e-924e]. This case makes no reference to the Connecticut case of Miller, [State v. Miller, 126 Conn. 373] 12 Atl.2d 192, cited in the McDowell opinion.
"It is somewhat difficult to see how the legislature can lend governmental sanction to price maintenance of trademarked or branded merchandise, which price may include substantial profits, and may not, in the exercise of the police power and as an anti-monopoly measure, prohibit sales below cost with intent to destroy competition. Of course, so far as the writer can ascertain, our fair trade statute has not been considered by our Supreme Court, and is in no sense involved in the present case, and no opinion whatever with reference to its validity is intimated.
"It is necessary to consider whether or not prohibition of intentionally destructive sales below cost is reasonable related and adapted to the declared purpose and intent of the Act to prevent monopoly. It would seem that it is. For many years, the Robinson-Patman Act has prohibited sales at unreasonably low prices for purposes of injury to competition, as part of the Federal System of `anti-trust' legislation.
"In Tooke and Reynolds vs. Bastrop Oil [Ice & Storage] Co. [172 La. 781], 135 So. 239, the Louisiana Court held that the sale of ice at less than cost of manufacture in order to eliminate competition was actionable under the treble-damages provision of the anti-trust law of that state [Act No. 11 of 1915, Ex.Sess., § 16, LSA-R.S. 51:137].
"And the Supreme Court of Mississippi, in Memphis Steam Laundry [-Cleaners] vs. Lindsey [192 Miss. 224], 5 So.2d 227, has gone so far as to hold that deliberately injurious price-cutting below cost, to drive a competitor out of business, is actionable at common law and authorized recovery of punitive damages.
"Price legislation, including `Below Cost Acts' and `Fair Trade Acts,' has had a hectic career in the various states of the union. Once the principle is conceded, the application often becomes extremely difficult as exemplified in the Cohen-Frey case, supra.
"Other difficulties and possible inconsistencies in juridicial treatment have also appeared in Louisiana and Florida. In addition to judicial difficulties, this legislation may possibly involve fallacies in economic and accounting theory, and business administration practice. It may possibly substitute an oligarchy of the trade association for the monopoly of the old-time `trusts.'
"A critical and unsympathetic discussion is found in 57 Yale Law Journal, p. 391. And there have been instances where individuals have been enjoined in Federal Courts from actively participating in the operation of `below cost' statutes under the Sherman Act. And it could possibly be that the cost-surveys provided for in this Act may become the equivalent of agreed price lists. Code of Ala., 1940, Title 57, Section 107, prohibits agreements to regulate or fix the price of any commodity to be sold within this state. Perhaps the anti-monopoly horse has been ridden off in two opposite directions at once. As to the operation of this sort of legislation with the Sherman Act, see Food and Grocery Bureau of
"The validity of the Alabama Unfair Cigarette Sales Act has already been upheld in one of the Circuit Courts of this state (Jerry Hilliard vs. Edwards, Commissioner of Revenue, Montgomery Circuit Court decree of April 16, 1954), the learned and respected jurist who rendered that decree observing that the issue is legal and not economic, and that it was neither the function or prerogative of the court to express an opinion on the wisdom or policy of the statute, that being primarily for the legislature, the Court being limited in its inquiry to:
"1. Whether the subject of the legislation is within the police power, and
"2. Whether the means adopted to accomplish the result are reasonably designed to do so and have a real and substantial relation to the objective.
"This Court is of the opinion that there is a valid distinction between `competitive price-cutting' and `intentionally destructive' price cutting, for the purpose of application of our constitutional principles. One of the declared intentions of the legislature in this Act is to safeguard the public against creation of monopoly. Not only is that within the scope of police power, but the exercise of that power is affirmatively enjoined upon the legislature by Section 103 of the Constitution. The factual examples of the Lindsey and Bastrop cases vividly show that intentional and deliberate cutting of prices below cost has been and can be a technique or weapon of monopolization. This Court cannot say that the declared intent is so far removed from the prohibited practice as to make it a mere masquerade, upon and from the very face of the Act itself.
"But the Court is further of the opinion that, in a business not affected with a public interest, as that concept abides in the law of the State of Alabama, the legislature cannot regulate competitive pricing policies by declared standards of `fair competition,' and undertake merely to umpire pricing practices with reference to such standards above the level of selling of commodities below cost with injurious intent in a business which may be susceptible of monopolization within a community.
"If mere `injury' to competitors were to serve as the basis for invoking the police power over prices, and was the only basis for the Act's operation, it would not be constitutional under our cases. All competition is intentional and all competitors necessarily injure all other competitors in the same field, except in rare cases of unrestricted and totally elastic markets. Competition is a struggle to win. Whatever one does to attract customers to him, in inelastic markets, is necessarily `injury' to others in the field. To set a criterion of cost does not help the situation. Whether a price cutter sells below cost of acquisition, or below that plus the cost of doing business, or below both these costs plus a profit so small as to scarcely yield a living for himself and his family, some injurious result would accrue to competitors who feel that they have a right to expect a reasonable profit. When a merchant air conditions or remodels his store, or provides parking, or exceptionally pleasant treatment for his customer, or more liberal credit than is ordinarily extended, it is done, in a loose sense, to `injure' competitors, who cannot or will not meet these conditions, though such merchant be a man of however much good will.
"The giving of trading stamps in the Kelly case, the giving of dishes in the McDowell case, and the giving of discounts in the Hunter case, were intentionally done. The natural and probable consequence of those practices was to attract patronage away from competitors and thus injure them. And the plaintiffs in the McDowell and Hunter cases alleged that they were being injured by unfair competition. If the police power included prohibition of price cutting solely for the prevention of injury to competitors as such, without the prohibition
"The Court is not required to regard with enthusiasm and without dubiety the entry of what might ultimately turn out to be the nose of the price-fixing camel within the State constitutional tent. But questions of the wisdom, necessity, propriety, efficiency, practicability, consistency, economic actuality and policy, and soundness of legislation are primarily for the legislature. And if the question of adaptation of means to purpose is debatable, the Court will not undertake to say as a matter of law that it does not exist. Will the Act have, in practical operation, an end-result of price fixing? Is it fairly enforceable? Prediction is beyond the function of the Court. There have been some peculiar applications of price and price-maintenance legislation.
"In Remington Arms [, Inc.] vs. Berger [, Inc., 208 Misc. 561], 144 N.Y.S.2d 751, a dealer in brand-named ammunition, who had purchased a quantity of it at a discount at a closeout sale, was required to sell it at no less than what he regarded as an exorbitant profit.
"In Trade Comm. vs. Bush (Utah) 1953 [123 Utah. 302, 259 P.2d 304], C.C.H. Trade cases, p. 60, 601, the merchant who gave trading stamps, and was sued under a `below cost' Act, prevailed in his insistence that his only intent was to increase his own business, and not to harm anyone, `frankly admitting we all know—that any sales increase be enjoyed of necessity reduced the sales of another or others.'
"In Bristol Myers vs. Picker [302 N.Y. 61], 96 N.E.2d 177, 22 A.L.R.2d  203, which was like Remington under the New York consensual Fair Trade Act [General Business Law, McKinney's Consol. Laws, c. 20, §§ 369-a to 369-e], the Court of Appeals of that State wrestled with the problem of whether or not the giving of redeemable cash register slips constituted a violation when much less tangible `gratuities' such as parking the customer's car, minding his infant, and furnishing him with entertainment, were not violations.
"In United [Retail] Grocers' Association vs. Harrison[`s Sons, Inc.], 89 District and County 294, the Pennsylvania Common Pleas held not violative of a `below cost' statute, the giving of five pounds of free sugar with purchases, under an Act containing no provision such as Section V of the Alabama Unfair Cigarette Sales Act."
To sum up the views of the Court, the following conclusions are set forth:
Research discloses that in 38 jurisdictions of the United States which have enacted such laws (some applying to all products generally, others applying to one or more products), the courts have been practically unanimous in affirming the principles of these laws against constitutional attack. The following states have upheld the validity of sales below cost laws: Arizona, California, Colorado, Connecticut, Iowa, Kansas, Kentucky, Louisiana, Massachusetts, Minnesota, Montana, Nebraska, New Hampshire, New Jersey, Oklahoma, Tennessee, Washington, Wisconsin, Wyoming. (The reporter will set out in the report of the case the cases from these jurisdictions appearing in the Amicus Curiae brief.)
Since Judge Giles' last decree, the United States Supreme Court handed down its decision, Safeway Stores, Inc. v. Oklahoma Retail Grocery Ass'n, Inc., 360 U.S. 334, 79 S.Ct. 1196, 1201, 3 L.Ed.2d 1280, at page 1285, upholding the constitutionality of the Oklahoma Unfair Sales Act, 15 O.S.1951 §§ 598.1-598.11, which was attacked on the grounds of violating the Fifth and Fourteenth Amendments of the Federal Constitution, and the Court there said:
It should be pointed out that since the demurrer of appellant is to the bill as a whole, if any ground for relief, as pleaded, is sufficient, then the demurrer addressed to the bill as a whole was properly overruled, even though other aspects, if any, might be defective. We are of the opinion that the court ruled correctly in stating that the bill had equity and in overruling the demurrer of appellant. Stone Container Corp. v. Stapler, 263 Ala. 524, 83 So.2d 283; Bell v. Killian, 256 Ala. 24, 53 So.2d 604;
We think the bill sufficiently charges a violation of Sec. III (a) of Act 805, Acts of Alabama 1951, effective Sept. 11, 1951, now appearing in Pocket Part of the Code of Alabama 1940 as Sec. 83(1) through (14) of Title 57, and hold that the trial court correctly overruled the grounds of demurrer properly assigned and argued.
We are not to be understood as holding that all of the provisions of the Act are constitutional because the validity of all the provisions of the Act are not here challenged.
The cause is affirmed.
All the Justices concur except COLEMAN, J., who dissents.
COLEMAN, Justice (dissenting).
I do not disagree with the broad constitutional principle that the legislature has power to prevent monopolies. In the light of that principle, it may well be that the first sentence of Section III (a) of Act No. 805, 1951 Acts, p. 1402, is not, on its face, violative of any constitutional provision.
The bill of complaint here under attack, as I understand it, seeks far more than a mere declaration that the first sentence of Section III (a) is constitutional on its face. I do not understand how it can be said that the bill sufficiently alleges violation of the statute by appellant, and shows that complainant is entitled to the injunction prayed for, on the bare holding that the first sentence of Section 111(a) of the Act is not unconstitutional on its face.
As it appears to me, the respondent, in this Court at least, has, by appropriate demurrer and argument, challenged certain sections of the statute. I am not able to agree that those sections meet the constitutional test and am of opinion that the decree overruling the demurrer is in error. Therefore, I respectfully dissent.