The Birmingham age-herald., 1922-05-26

This opinion was concurred in by Jusetices Sayre, Gardner and MiIl4r
 Chief Justice Anderson concurred in tho conclusion only, and Justices Me- clelian and Thomas dissented. Jus tce Thomas preparing dissenting opinion In support of the minoritys position in the case.
 Originating in Jefferson county. where the circuit court held the ansi- profIteering law to be unconstisa- uonal. the case was appealed to tue Alabama court of appeals. con stitutonal point beng involved. however, the matter was certified tn the supreme court for an opinion, which opinion, announced today, has in turn been certified to the co'rt of appeals. In his complaint in tie case, the solicitor in behalf of the state charGed that a certain Birmipg- ham merchant sold or offered for sa's pair of ladies' hose for si79, de- claring that the articles were 1e- ncssity of life, with the intent af obtaining fradnleut@ or grossly ex- cessive price over the true value In trial of the case the Jefferson county circuit court declared .hs anti -profiteering law invalid
 Correct Economic Evil
 Referring to the act upon which the action against the merchant was based, the majority opinion stated that this act was intended to cor- rect an economic evil the exactiun of unreasonable profits In trade which followed in the wake of tas World war and which prevailed in every part of American, as 1t did m almost every part of the civilized world. the act is. nevertheless, In is essential nature and effect dIraet challenge te those theories of per- sonal liberty and freedom of action which underly and permeate consti- tuttonai government in America, II IS, Tn fact. radical and epochai ds- parture from the trodden paths of governmental action under hitherto recognized constitutional restraints and bold excursion into the field .,f purely paternalistfc control of the private business of citizens" It Is stated also, that the phrase, "neces- stiles of life" has no certainty of meaning also that the act assumes that any article of food or clothing Is necessity without discrimination.
 Does Not Fix Prices
 Section of the act which was de- clared unconstitutional. reads in part as follolyN: "Profiteering within the meaning of this act shall be held to mean the selling or offering for sale of any article or commodity of food. clothing. fuel or other necessity of life. with the intent of obtaining fradulent or grossly excessive pr,re over it's true or intrinsic worth" The minority held that the act was not statute to fix prices that a fradulent intent is q mere condition of mind and constitutes an ultimate fact in the definition of any offence of which 1t Is made an ingredient. The minority also held that in Section the word Tor" where it appears between the words fraudulent and grossly, meant and" and that this construction was intended by the leg islature which enacted the act
 The supreme court held that while 1t Is permissible to regulate any business affected with a public in terest or bearing upon the public health or safety. the present act Is not confined to such a purpose, or drawn to meet any emergency, but undertakes to deal generally with the business of trading and to regulate the price of useful and harmless arr ticles and commodities. For this req son 1t is held. the subject of the act is not within the police power of the state and that 1t is in violation uf the guarantees of life. liberty and the pursuit of happiness assured by the federal and state constitutions.