People v. Arlen Service Stations, Inc.

Perlman, J. The council of the city of New York, on August 10, 1939, adopted Local Law No. 141, adding a provision to the Administrative Code, regulating the retail sales of gasoline (Art. 7, §§ B36-101.0-B36-103.0). The ordinance makes it unlawful for any one to sell gasoline at retail “ unless such seller shall post and keep continuously posted on the individual pump * * * a sign or placard not less than seven inches in height and eight inches in width, nor larger than twelve inches in height and twelve inches in width and stating clearly and legibly in numbers of uniform size, the selling price or prices per gallon of such gasoline so sold * * * together with the name, trade name, brand, mark or symbol, and grade or quality classification, if any, of such gasoline.” The ordinance further provides: “ (b) No sign or placard stating the price or prices of gasoline other than such signs or placards as hereinabove provided shall be posted or maintained on the premises on which said gasoline is sold or offered for sale.” Another section of the same ordinance makes it unlawful for any person to sell or offer for sale gasoline at retail in any manner so as to deceive or tend to deceive the purchaser as to the price, nature, quality or identity thereof, etc. (§ B36-102.0.) Violations of the ordinance are punishable by fines or imprisonment or both. (§ B36-103.0.) The defendant, operating a gasoline station in the borough of Brooklyn, city of New York, has been convicted of a violation of this ordinance. It was admitted upon the trial that the defendant maintained upon his premises signs stating the price of gasoline, the dimensions of which exceeded the dimensions permitted by the ordinance. The ordinance is attacked as unconstitutional under both the Federal and State Constitutions. (See U. S. Const. 14th Amendt. § 1; State Const, art. 1, §§ 1, 6.) It is recognized beyond any question that a municipality may, in the exercise of its police power, pass reasonable legislation for the purpose of protecting the public against the encroachment, selfishness and dishonesty of the individual. (People v. Perretta, [32] 253 N. Y. 305; People v. Luhrs, 195 id. 377.) The police power, “ a dynamic agency, vague and undefined in its scope ” (per Pound, J., in People ex rel. Durham Realty Corp. v. LaFetra, 230 N. Y. 429, 443), is " the least limitable of the powers of government.” (District of Columbia v. Brooke, 214 U. S. 138, 149.) It is recognized that many statutes regulating the conduct of a lawful business have been found to be consistent with due process. (See cases cited in Nebbia v. New York, 291 U. S. 502.) For example, in Cusack Co. v. City of Chicago (242 U. S. 526), the Supreme Court of the United States has held that billboards may be prohibited in the interests of safety, morality, health and decency of the community. Support for the reasonableness of that ordinance was found in evidence that fires had been started in the accumulation of combustible material which gathered about such billboards, and that they afforded a convenient concealment and shield for immoral practices, and for loiterers and criminals. (242 U. S. 526, 529.) (See, also, St. Louis Poster Adv. Co. v. City of St. Louis, 249 U. S. 269.) In Packer Corp. v. Utah (285 U. S. 105) the court upheld a statute of the State of Utah forbidding the advertising of cigarettes and other tobacco products on billboards, street car signs and placards. Support for this statute was found in the general proposition that a State may, under the police power, regulate the business of selling tobacco products. But even the police power must be exercised in harmony with the restrictions imposed in the fundamental law. (Judd v. Board of Education, 278 N. Y. 200, 215.) While our inquiry does not extend to the expediency, wisdom or necessity of the legislative judgment (Standard Oil Co. v. City of Marysville, 279 U. S. 582), it is our duty to determine whether or not the ordinance under attack is arbitrary, capricious and not reasonably necessary for the accomplishment of any legitimate purpose of the police power. (People ex rel. Wineburgh Adv. Co. v. Murphy, 195 N. Y. 126. Cf. People ex rel. Publicity Leasing Co. v. Ludwig, 218 id. 540.) In the last analysis, the question is whether the ordinance is an unnecessary interference with a lawful business and trade. I am of the opinion that so much of the ordinance as prohibits a retailer of gasoline from advertising the price of his product except by the use of a sign attached to the dispensing pump, is arbitrary, unreasonable, oppressive and discriminatory. I believe that subdivision (b) of the section is not reasonably necessary for the accomplishment of any real or legitimate purpose in the exercise of the police power. In Yu Cong Eng v. Trinidad (271 U. S. 500) a statute passed by the Philippine Legislature to aid the collection of taxes and pro [33] hibiting the keeping of account books in any language, except English, Spanish or a local dialect, was held unconstitutional. The government endeavored to find justification of the statute in the many complaints in respect to the avoidance of taxation by Chinese merchants and the difficulty in the examination of their books. In State v. Danberg (-Del.-; 6 A. [2d] 596), decided May 1, 1939, an ordinance of the city of Wilmington, Del., passed for the purpose of promoting fair trade practices in reference to barber shops, made it unlawful, among other provisions, to advertise prices for barbering on the outside of any building in which a barber shop is located or in the window or on the door of any barber shop or any other place adjacent thereto, where it may be readily seen from the outside, or to advertise prices in any periodical, magazine or newspaper. The court held the statute to be unconstitutional, saying that there is very little difference between a barber advertising the price for which he sells his services to the public and a merchant advertising the price for which he sells hats and shoes. A similar regulation in the State of Connecticut, prohibiting the advertising of haircuts and shaves, was held invalid on the ground that it did not appear from the evidence that the regulation has “ sufficient basis in the protection of the public to make it valid.” (Pagano v. Board of Examiners of Barbers, 6 Conn. Supp. 130.) The above cases are instances of statutes which imposed unnecessary and oppressive restrictions upon lawful occupations. Subdivision (b) of the ordinance under attack seems to fall within the same category. As to the other provisions, I can see no criticism of the requirement (§ B36-101.0) compelling the posting on the individual pump or dispensing device of a sign of standard size, stating the price of gasoline. (National Fertilizer Assn. v. Bradley, 301 U. S. 178.) And, certainly, the prohibition in section B36-102.0, making it unlawful to sell or offer for sale gasoline at retail in any manner so as to deceive or tend to deceive the purchaser is valid. In justification of subdivision (b), it is urged that some retailers of gasoline employ a so-called “ circus ” or “ bushel ” sign on which numerals and words are cleverly arranged to mislead the passing automobile driver. One answer to this contention is the section of the ordinance in question and other provisions of the Penal Law prohibiting misleading and false advertising. To insure that there shall be no misleading advertising, the ordinance prohibits all advertising as to the price of gasoline, except a small sign of standard size on the gasoline pump. Of course, this is a simple method of eliminating an alleged evil. However, such a radical short cut cannot be supported as either reasonable or neces [34] sary. Because of some instances of false advertising, honest tradesmen are arbitrarily deprived of the beneficial use and the free enjoyment of their private property, and a tradesman is prevented from using his premises for honest advertising. The sale of retail gasoline offers no greater opportunity for fraud than the sale of any other commodity. The passing automobile driver is in no need of greater protection than the passing pedestrian. If this provision of the ordinance is permitted as to retail gasoline dealers, what about the butcher, the baker and the candlestick maker? (Wolff Packing Co. v. Court of Industrial Relations, 262 U. S. 522.) The number of statutes on this subject would then be multiplied endlessly and would be limited only by the number of different vocations and businesses. My views on this subject are supported by two recent decisions of courts in other States interpreting similar statutes. In Regal Oil Co. v. State (123 N. J. Law, 456; 10 A. [2d] 495) a similar statute in the State of New Jersey was held unconstitutional. State of Connecticut v. Miller (126 Conn. 373; 12 A. [2d] 192), decided by the Supreme Court of Connecticut on February 23, 1940, involved the constitutionality of a similar statute. The last two sentences of the Connecticut statute prohibited a retailer of gasoline from posting any signs showing the sale price of the gasoline, except the standard sign attached to the pump. This provision is identical with subdivision (b) of the ordinance under attack. The Supreme Court of Connecticut unanimously held that the last two sentences of the Connecticut statute were unconstitutional and invalid. In its opinion the court wrote: “ We are not able to see, either from the provisions themselves or from the facts found, how they could have any appreciable effect in protecting the public from fraud. It is apparent from the fact that advertising signs for other kinds of business carried on beside the highways, or even by operators of gasoline stations, are not similarly restricted, that the purpose was not to promote the safety of travelers upon the highway.” [: A reported case taking an opposite view is Slome v. Godley (-Mass. -; 23 N. E. [2d] 133), decided on October 26, 1939, by the Supreme Judicial Court of Massachusetts. I conclude that subdivision (b) of section B36-101.0 is invalid. The other provisions of the section remain undisturbed. The judgment of conviction should be reversed, the complaint dismissed, and the defendant discharged. DeLuca, J., concurs, with opinion; Bayes, P. J., dissents, with opinion,