3. Moreover, and for the reasons stated in Harris v. Duncan, 208 Ga. 561 ( 67 S.E.2d 692), Georgia's Fair Trade Act of 1937 offends article 1, section 1, paragraph 3 of our Constitution of 1945, which provides that "No person shall be deprived of life, liberty, or property except by due process of law." Code (Ann.), § 2-103.

For that reason the decision is limited to this issue. This court in the full bench decision of Harris v. Duncan, 208 Ga. 561 ( 67 S.E.2d 692), held that the Act (Ga. L. 1937), p. 247, as amended; Code Ann. § 42-523 et seq.), conferring upon the Milk Control Board the authority to fix the price of milk, violates Art. I, Sec. I, Par. III of the Constitution of Georgia ( Code Ann. § 2-103), the due process clause, in that it restricts the freedom of contract. See also Williams v. Hirsch, 211 Ga. 534 ( 87 S.E.2d 70). This full bench decision can be reversed only by the concurrence of all seven Justices of this court, unless there has been some material amendment, or facts that would make the question of law different from that existing in the older decision.

See also Nebbia v. New York, 291 U.S. 502 ( 54 S.C. 505, 78 LE 940) (1934). The decision in Harris v. Duncan, 208 Ga. 561 ( 67 S.E.2d 692) (1951), relied upon by appellant, is distinguishable. The "affected by a public interest" test employed in that case applies only to price controls enacted by the legislature.

This court has very recently in two cases dealt with the question of fixing prices by statute. In Harris v. Duncan, 208 Ga. 561 ( 67 S.E.2d 692), this court was dealing with a statute purporting to give to a board the right to fix the price of milk. We there said (p. 563): "Before the General Assembly can authorize price fixing without violating the due process clause of our Constitution, among other requirements, it must be done in a business or where property involved is `affected with a public interest,' and the milk industry does not come within that scope."

Daniel R. McLeod, Attorney General, and JamesS. Verner, Assistant Attorney General, of Columbia, for Appellant, cite: As to Act No. 255 of the 1955 Acts not deprivingthe Respondent, a retailer of milk, of its propertywithout due process of law nor denying him the equal protectionof the law, contrary to Section 5, Article 1, of theConstitution of this State: 37 S.E.2d 241, 207 S.C. 500; 290 U.S. 169, 78 L.Ed. 247; 67 S.E.2d 692, 208 Ga. 561; 336 U.S. 525, 69 S.Ct. 657, 93 L.Ed. 865; 291 U.S. 502, 78 L.Ed. 940, 89 A.L.R. 1469; 300 U.S. 608, 81 L.Ed. 835; 77 S.E.2d 798, 224 S.C. 150; 66 S.E.2d 33, 219 S.C. 485; 99 S.E.2d 665; 2 S.E.2d 36, 191 S.C. 271; 17 S.E.2d 524; 198 S.C. 225; 94 S.E.2d 177, 230 S.C. 75; 68 S.E.2d 334, 220 S.C. 414; 88 S.E.2d 683, 227 S.C. 538; 291 U.S. 502; 107 S.E.2d 36, 234 S.C. 103; 22 Am. Jur., Food, p. 865; 101 A.L.R. 646; 119 A.L.R. 245; 155 A.L.R. 1383; 103 S.E.2d 923, 233 S.C. 161; 94 S.E.2d 177, 230 S.C. 75; 103 S.E.2d 762, 233 S.C. 67; 103 S.E.2d 14; 88 S.E.2d 67, 227 S.C. 339; 310 U.S. 32, 84 L.Ed. 1061. As to the order of the Dairy Commission,in declaring the Greenville-Spartanburg milk marketingarea a controlled market, and fixing the minimumwholesale, retail and producer prices not unconstitutionallydepriving the Respondent of his property: 77 S.E.2d 195, 223 S.C. 526; 68 S.E.2d 44, 220 S.C. 469; 220 S.C. 414, 68 S.E.2d 334; 163 Va. 957, 179 S.E. 507; 300 U.S. 608, 81 L.Ed. 835; 249 N.C.

As we agree with their contention that OCGA § 10-1-234 violates the due process clause of our State Constitution, 1983 Georgia Constitution, Art. I, Sec. I, Par. I, in that it seeks to regulate a business not affected with a public interest, we find it unnecessary to address the other issues raised by this appeal. In Harris v. Duncan, 208 Ga. 561, 564-65 ( 67 S.E.2d 692) (1951), we held that "[t]he right to contract, and for the seller and purchaser to agree upon a price, is a property right protected by the due-process clause of our Constitution, and unless it is a business `affected with a public interest,' the General Assembly is without authority to abridge that right." Accord Cox v. General Electric Co., 211 Ga. 286 (2) ( 85 S.E.2d 514) (1955); Williams v. Hirsch, 211 Ga. 534 ( 87 S.E.2d 70) (1955); Strickland v. Rio Stores, Inc., 243 Ga. 600 ( 255 S.E.2d 714) (1979).

The Milk Control Act, as originally passed in 1937, permitted the Milk Control Board to fix prices on milk sold within the state. The Act withstood several constitutional challenges, Bohannon v. Duncan, 185 Ga. 840, 196 S.E. 897 (1938); Gibbs v. Milk Control Board of Georgia, 185 Ga. 844, 196 S.E. 791 (1938); Holcombe v. Georgia Milk Producers Confederation, 188 Ga. 358, 3 S.E.2d 705 (1939), before it succumbed in Harris v. Duncan, 208 Ga. 561, 67 S.E.2d 692 (1951). The Supreme Court of Georgia, in a full bench decision, held the Act violative of state due process in its restriction on the freedom of contract.

Messrs. Murchison, West Marshall, of Camden, forAppellant, cite: As to milk not being affected with thepublic interest as to warrant economic regulation by legislativeact at any stage of its production or marketing: 237 S.C. 17, 115 S.E.2d 673; 262 U.S. 522, 43 S.Ct. 630, 67 L.Ed. 110; 208 Ga. 561, 67 S.E.2d 692; 231 S.C. 636, 99 S.E.2d 665. Messrs.

" Respondent relies upon the case of Harris v. Duncan, 208 Ga. 561, 67 S.E.2d 692, where the court held that the milk industry was not "affected with a public interest" and that the General Assembly was not authorized to pass an act fixing the price of milk without violating the due process clause of the state constitution. The opinion pointed out that that court was not bound in construing the state constitution by the rulings of the United States Supreme Court which had twice held the right of a state to authorize the fixing of milk prices as against the contention that an act violated the due process clause of the Constitution of the United States.

iss. 75, 178 So. 799, 115 A.L.R. 1436; Baldwin v. Seelig, 294 U.S. 511, 79 L.Ed. 1032, 55 S.Ct. 497, 101 A.L.R. 55; Board of Suprs. of Elizabeth City County v. Milk Comm., 191 Va. 1, 60 S.E.2d 35; Board of Suprs. of Elizabeth City County v. Milk Comm., 340 U.S. 881, 95 L.Ed. 640, 71 S.Ct. 198; Bohannon v. Duncan, 185 Ga. 840, 196 S.E. 897; Borden's Farm Products Co. v. Baldwin, 293 U.S. 194, 79 L.Ed. 281, 55 S.Ct. 187; Borden's Farm Products v. Ten Eyck, 297 U.S. 251, 80 L.Ed. 469, 56 S.Ct. 453; Cloutier v. Milk Control Board, 92 N.H. 199, 28 A.2d 554; Colteryahn Sanitary Dairy Co. v. Milk Control Comm., 332 Pa. 15, 1 A.2d 775, 122 A.L.R. 1049; Como Farms v. Foran, 6 N.J. Super. 306, 71 A.2d 201; Ex parte Homewood Dairy Products Co., 241 Ala. 470, 3 So.2d 58; Ferretti v. Jackson, 88 N.H. 296, 188 A. 474; Franklin v. State, 232 Ala. 637, 169 So. 295; Gwynette v. Myers (S.C.), 115 S.E.2d 673; Hammerberg v. Farmers Cooperative, 12 Conn. Sup. 465; Hammerberg v. Mercier, 12 Conn. Sup. 67; Harris v. Duncan, 208 Ga. 561, 67 S.E.2d 692; Hegeman Farms Corp. v. Baldwin, 293 U.S. 163, 79 L.Ed. 259, 55 S.Ct. 7; Highland Farms Dairy v. Agnew, 300 U.S. 608, 81 L.Ed. 835, 57 S.Ct. 549; Holcombe v. Georgia Milk Producers' Confederation, 188 Ga. 358, 3 S.E.2d 705; In re opinion of the Justices, 88 N.H. 497, 190 A. 73; Jersey Maid Milk Products Co. v. Brock, 13 Cal.2d 620, 91 P.2d 577; Miami Home Milk Producers Assn. v. Milk Control Board, 124 Fla. 797, 169 So. 541; Milk Comm. v. Dade County Dairies, 145 Fla. 579, 200 So. 83; Milk Control Board v. Crescent Creamery, 214 Ind. 240, 14 N.E.2d 588, 15 N.E.2d 80; Milk Control Board v. Gosselin's Dairy, 301 Mass. 174, 16 N.E.2d 641; Milk Control Board of Pennsylvania v. Eisenberg Farm Products, 306 U.S. 346, 83 L.Ed. 752, 59 S.Ct. 528; Nebbia v. New York, 291 U.S. 502, 78 L.Ed. 940, 54 S.Ct. 505, 89 A.L.R. 1469; Newstate Ice Co. v. Liebmann, 285 U.S. 262, 76 L.Ed. 747, 52 S.Ct. 371; Noyes v. Erie Wyoming Farmers Coop., 281 N.Y. 187, 22 N.E.2d 334; Opinion to the House of Represent