Lilly answered and cross-petitioned for enforcement of the Ohio Act against Hudson. The Court of Common Pleas held the Ohio Act unconstitutional under the State Constitution. On appeal, the Court of Appeals for Cuyahoga County, after discussing the federal and state legislation, 117 Ohio App. 207, 176 N.E.2d 236, reversed the trial court and entered a judgment declaring that the Ohio Act was not "in violation of the Constitution of the State of Ohio nor of the Constitution of the United States . . . ." The court remanded the case "for further proceedings according to law with respect to the cross-petition . . . .
By agreement the case went to trial only on the constitutional question and in July 1960, this court declared the Fair Trade Act unconstitutional. On review the Court of Appeals of this county, by a two to one decision ( Hudson Distributors, Inc., v. Upjohn Co., 117 Ohio App. 207) on July 13, 1961, reversed this court and held the law constitutional. In the Supreme Court of Ohio four of the judges declared the Fair Trade Act unconstitutional and three determined it was valid.
1. In an action by a manufacturer, seeking a permanent injunction against a distributing company which owns and operates discount department stores, charging violation of the 1959 Ohio Fair Trade Act by selling below fair trade prices, the decision in Hudson v. Upjohn, 117 Ohio App. 207, affirmed in 174 Ohio St. 487, is binding in Cuyahoga County. 2.
Thereafter, in Bulova Watch Company v. Ontario Store of Columbus, Ohio, 176 N.E.2d 527, the Court of Common Pleas of Ohio, Franklin County, on April 14, 1961, held the 1959 Fair Trade Law unconstitutional as a delegation of legislative power to private persons. The last Ohio decision we have unearthed is Hudson Distributors, Inc. v. Upjohn Company and Hudson Distributors, Inc. v. Eli Lilly Company, 176 N.E.2d 236, Court of Appeals of Ohio, Cuyahoga County, decided July 13, 1961, which held the 1959 Fair Trade Act constitutional and not an improper delegation of legislative power or otherwise, but with an impressive dissent by one of the appellate judges. As far as reported cases show, the Hudson case has not been appealed to the Supreme Court of Ohio and hence it cannot be said that the new 1959 Fair Trade Act has been finally passed upon by the highest court of that state.
This court is manacled by three things: 1. Our own Court of Appeals' decision holding that the Act is constitutional, Hudson Distributors, Inc., v. Upjohn Co. (1961), 117 Ohio App. 207. 2.