itself specifically to the question of the application of the statute to non-signers is clear. A broader interpretation cannot justifiably be read into the opinion.
Furthermore, this Court is of the opinion that the non-signer provision of the Fair Trade Act, consisting of the phrase 'whether the person so * * * selling * * * is not, a party to such contract' in Section 2, is severable from the remainder.
First, we recognize that it is now well accepted that an act of the legislature is presumed to be constitutional in all respects. See Comm. v. Moir, 199 Pa. 534, 49 A. 351, 53 L.R.A. 837 (1901). If an act, or a part of it, is not expressly overruled, it should not, by implication, be so considered. Section 55 of the Statutory Construction Act, 46 P.S. 555 being declaratory of the common law (See Cooley's Constitutional Limitations, 246-248 (7th Ed. 1903)), provides, in essence, that a statute whenever possible, must be construed as severable:
'The provisions of every law shall be severable. If any provision of a law is found by a court of record to be unconstitutional and void, the remaining provisions of the law shall, nevertheless, remain valid, unless the court finds the valid provisions of the law are so essentially and inseparably connected with, and so depend upon, the void provision, that it cannot be presumed the Legislature would have enacted the remaining valid provisions without the void one; or unless the court finds the remaining valid provisions, standing alone, are incomplete and are incapable of being executed in accordance with the legislative intent.'
Secondly, the Fair Trade Act itself contains the following provision which evidences the legislative intent with respect to severability:
'If any provision of this act is declared unconstitutional, it is the intent of the Legislature that the remaining portions thereof shall not be affected, but that such remaining portions shall remain in full force and effect.' Act of June 5, 1935, P.L. 266 § 5, 73 P.S. § 11.
The Defendant asserts, as previously detailed, that with the now declared unconstitutionality of the non-signer clause, the purpose of the Act has failed.
Here, again, we disagree. The rationale of the Court's opinion is directed at the situation where a manufacturer and a retailer, by execution of a resale price maintenance agreement, could impose their will, and the prices thereby established, upon retailers not a party to such agreements. It was this power of a manufacturer to fix prices which would govern others, not a party to the agreement, which was found to be unlawful.
The situation of the signing retailer, however, is entirely different. He does not have imposed upon him a price set without his consent. He is bound only to a price because he has agreed to it.
This simple, yet logical reasoning, supports our view that the applicability of the Fair Trade Act to non-signers is a matter separate and distinct from the application of the statute to those who have chosen to bind themselves contractually with a manufacturer of a fair trade product. We note further that the provisions of Section 1 of the Act, which sets forth a general policy declaring price resale agreements to be valid, are clearly unrelated to any provision of the statute seeking to make such agreements applicable to non-signers.
As succinctly and well stated by counsel for the Plaintiff: 'No legislative intent or statutory scheme is thwarted by permitting manufacturers of trademarked products to continue to enter into price resale maintenance agreements and to enforce those agreements against the parties bound to them by contract. The deletion of the non-signer provision merely changes the application of the statute to a voluntary, rather than a compulsory, basis.' In this, we fully agree.
While there are no cases in this jurisdiction on this construction of the Act, the authorities in other jurisdictions have ruled in conformity with the result herein on this precise question. General Electric Co. v. American Buyers Cooperative, 316 S.W.2d 354 (Ky.1958); Bissell Carpet Sweeper Co. v. Shane Co., 237 Ind. 188, 143 N.E.2d 415 (1957) and Sunbeam Corp. v. Economy Distributing Co., 131 F.Supp. 791 (E.D.Mich.1955).
And now, this 18th day of September, A.D.1964, after hearing had in the above matter, it is ordered and decreed that a Permanent Injunction issue enjoining Defendant, its agents, employees and other persons acting under the authority or control of Defendant, from advertising, offering for sale or selling at retail commodities manufactured by Plaintiff and trademarked 'WINCHESTER' at prices which are less than the stipulated resale prices now or hereafter established therefor by Plaintiff for the sale of such products in Pennsylvania, and it is so ordered.