SERVE YOURSELF GASOLINE STATIONS ASS v. BROCK

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District Court of Appeal, Second District, Division 1, California.

SERVE YOURSELF GASOLINE STATIONS ASS'N, Inc. et al. v. BROCK, Director of Department of Agriculture, et al.*

Civ. 18559.

Decided: March 21, 1952

Guthrie, Darling & Shattuck, Milo V. Olson, Salisbury & Knudson, Los Angeles, for appellants. Edmund G. Brown, Atty. Gen., John F. Hassler, Jr., Deputy Atty. Gen., for respondents.

This is a representative suit for declaratory relief instituted by several operators of serve-yourself type of gasoline stations who sought an adjudication that a statute, purporting to prohibit certain types of advertising signs on or near fillig stations, is not applicable to the signs erected by them; and, if the statute is applicable that it is unconstitutional.

The various signs involved in this case differ somewhat in that some state thereon merely the word ‘Save’; others, ‘Serve Yourself and Save’; and still others, ‘Save 5’ in large letters followed in small letters by either the word ‘cents,’ or ‘ways' or ‘minutes,’ or minor variations of the same general tenor.

The statute here involved,1 enacted in 1949, is but a continuation or enlargement of a series of statutes initially enacted since 1931 seeking on the one hand to require, and on the other hand, to restrict the manner and method of posting prices of gasoline and oils at filling stations.

The initial statute enacted in 1931 required filling stations to post on all gasoline pumps the brand, trade-mark or trade name (or if none then ‘no brand’) and the price per gallon of all gasoline dispensed therefrom. The validity or applicability of this statute as it has since been amended is not involved in the instant case. The statute before us, first partially enacted in 1941, and later amended after the advent of the so-called ‘serve yourself’ filling stations, restricts the use of all price signs at or near the stations to the statutory required price sign on each pump, unless such added price sign o signs set forth in detail and in lettering as large as any other lettering thereon, the total price per gallon including taxes of any brand or grade (naming it) of gasoline offered for sale on the premises. A price sign by the express words of the statute includes any sign whereon appears the word ‘Save.’

As each and every one of the signs involved in this appeal contains the word ‘Save,’ it follows that all the signs are within the purview of the statute and that they all violate the statute because they fail to set forth the details required by the statute, i. e., the total price including taxes along with the trade name or brand of the gasoline advertised for sale. The fact that all the operators, here involved, regardless of the language used on their signs sold gasoline at a price less than that of the conventional stations is under the language of the statute immaterial and hence a false quantity.

That being the case we come to the sole remaining question, which is whether the statute is unconstitutional insofar as it requires the statutory details above mentioned to be set forth upon the signs here involved. On that point we are of the opinion that the statute is clearly unconstitutional.

In so ruling we wish to say at the outset that we perceive that the purpose of the legislature in enacting the statute may not only be regarded as salutary but that it is a well-intentioned endeavor to eradicate a present-day evil, i. e., misleading advertisements. When a motorist driving along a street or highway is faced with a sign stating in large letters ‘Save 5,’ readable by him at a distance, we think he may well expect upon turning into the station to save 5 cents on the price of either regular or ethyl gasoline below that of the price of the conventional service stations. If in turning into the station and stopping at a pump he learns upon a closer inspection of the sign or from the price posted on the pump that he will not save anything in the way of price or at least less than 5¢ per gallon he unquestionably has been misled by the sign and quite naturally may be irked. Conceivably he may be misled once, but we think it quite possible, if not probable, that he will not again thereafter stop at a filling station displaying in large letters the word ‘Save’ unless his gasoline tank is too near empty to proceed further. If that be his attitude, as we believe it may well be, then the operators of filling stations who use the words ‘Save 5’ on their signs and actually sell their gasoline at 5¢ less than the conventional price will thereafter be harmed to a greater or less extent. The laws of compensation, as enunciated by Emerson, still hold full sway. But, be that as it may, the constitutionality of a statute may not be measured by the fact it is salutary from the standpoint of a consumer or the general public in that it tends or may tend to eradicate an evil such as misleading advertisements.

In coming to grips with the question before us we must assay the statute in the crucible of constitutional law. In that appraisement we are faced with the long-established principle that a state legislature may not regulate or control private business unless it is affected with a public interest, which is not the case here, Williams v. Standard Oil Co., 278 U.S. 235, 49 S.Ct. 115, 73 L.Ed. 287, or unless it is necessary for the public safety, public health or public morals, or any phase of the public welfare—all of which come under the head of the police power and no other constitutional power. The public safety may require that a filling station be controlled or regulated so as to eliminate the danger from fires or explosions of gasoline; the public health may possibly require that gasoline fumes be controlled; the public morals that gasoline filling stations should operate as such and not as fronts for businesses inimical to public morality. But just how signs of the character here involved can possibly endanger or affect the public safety, the public health, the public morals or the public welfare we fail to see, and in that aspect the brief of the attorney general is not convincing. To be sure the price which the great host of consumers—the general public—must pay for an article affects more or less the financial welfare of this great segment of the public, but even so it has never yet been held that a legislature may regulate prices under the public welfare concept. In that aspect Williams v. Standard Oil Co., 278 U.S. 235, 49 S.Ct. 115, 73 L.Ed. 287, is the leading and controlling authority to the contrary.

If it is important to the public welfare to steer the public away from filling stations that advertise upon large signs, in large letters, the word ‘Save’—without stating in detail the saving, then it is equally true that the public welfare requires that all other businesses who do the very same thing should be pilloried by like statutes. There is nothing about the filling station business in its endeavor to sell a gallon of gas that differentiates it from the grocer who endeavors to sell a can of peas. The public is not harmed if it chooses to buy a gallon of gas, without service, at a price less than a gallon with service, but the welfare of a conventional dealer who gives the servivce may well be affected. That, however, does not affect the public welfare, but only the welfare of competitors in the business of supplying gasoline.

The operator of a serve-yourself filling station is engaged in selling gasoline without service and in order to compete with the conventional type of station he must sell for less. His product appeals to the passing motorist only if such motorist prefers to wait on himself in return for a saving on the regular price of the product. The appeal is akin to that made to a housewife by the serve-yourself grocery. To compete, the grocery and the filling station must advertise the fact that a patron will save. The word ‘Save’ blazoned on a sign upon the grocery store cannot be differentiated in its appeal, in its drawing power, or in its opportunity for fraud from that of a like sign at a filling station. A sign bearing only the word ‘Save’ or ‘Serve-Yourself and Save’ is not per se misleading or fraudulent. It is only when the commodity is sold at a price at which there is no saving that the sign may be said to attain the status of being misleading or fraudulent. The passing motorist is no more entitled to have the saving spelled out for him than is the passing consumer entitled to have the grocery do likewise. The fact that the statute applies to dealers of petroleum products only and not to dealers of other commodities is not by this mere difference a sufficient classification to save the statute from a charge it is discriminatory and violates the equal protection clauses where the end operation or result is the same. Cf. Liggett Co. v. Lee, 288 U.S. 517, 53 S.Ct. 481, 77 L.Ed. 929.

A motorist may be inconvenienced when he drives into a filling station which does not advertise that it is a self-service station or which does not advertise by large signs the price of the product sold. Likewise he is inconvenienced if the price is higher than he expects to pay regardless of whether there is or is not a large sign bearing the word ‘Save.’ But any such inconvenience suffered by the prospective purchaser is not a fraud upon him or of such moment as to warrant the exercise of the police power to save him from the inconvenience.

The statute not only interferes arbitrarily with private business, but in addition it imposes unreasonable and unnecessary restrictions upon such business. New State Ice Co. v. Liebmann, 285 U.S. 262, 52 S.Ct. 371, 76 L.Ed. 747. Moreover, the statute violates our state constitution, Art. IV, sec. 25(33), in that it is a special law that is unnecessary because a general law is and can be made applicable. Such a law is Business and Professions Code, § 17500, which makes it unlawful for dealers, such as we have here, to advertise a fact which is untrue or misleading.

The statute before us differs from the statutes or several other states which have sought to restrict filling stations from advertising their product in that those statutes endeavored to bar all advertising of prices save upon the very small signs permitted on the pumps, whereas our statute permits such additional prices signs but only if they spell out the saving. However, the principle applied in holding such statutes unconstitutional is equally applicable here. The cases all proceed on the theory that such additional signs have no detrimental effect upon, and bear no reasonable relation whatsoever to, public safety, health, morals or welfare. State v. Miller, 1940, 126 Conn. 373, 12 A.2d 192; Regal Oil Co. v. State, 1939, 123 N.J.L. 456, 10 A.2d 495; Levy v. City of Pontiac, 331 Mich. 100, 49 N.W.2d 80; cf. People v. Mestichelli, 1939, Cty.Mag.Ct., 18 N.Y.S.2d 406; Alabama Independent Serv. Station Ass'n v. McDowell, 242 Ala. 424, 6 So.2d 502; State v. Hobson, Del. 1951, 83 A.2d 846. Views contrary to those reached by the Connecticut, New Jersey and Michigan courts are those of Massachusetts and New York. Slome v. Godley, 304 Mass. 187, 23 N.E.2d 133; Merit Oil Co. v. Director of Division of Necessaries of Life, 319 Mass. 301, 65 N.E.2d 529, and People v. Arlen Service Stations, 284 N.Y. 340, 31 N.E.2d 184.

As in our view the act is unconstitutional as applied to the signs here involved the judgment appealed from should be and it is reversed.

FOOTNOTES

1.  Business & Professions Code, § 20880: ‘(a) No person shall keep, maintain or display on or near the premises of any place of business in this State any advertising medium, which indicates or shows or advertises the price of gasoline or other motor vehicle fuel sold, offered for sale or advertised for sale from such premises, unless the actual price per gallon of gasoline or other motor vehicle fuel, including taxes, is also shown on such advertising medium, together with the word or words ‘gasoline’ or ‘motor fuel’ and the trade name or brand of the gasoline or other motor vehicle fuel product advertised for sale by such advertising medium.‘(b) No person offering for sale or selling any gasoline or motor vehicle fuel from any place of business in the State of California shall post or display a sign or statement or other advertising medium * * * using the words ‘save,’ * * *, or a word or words of similar meaning or other phraseology indicating a reduced price, unless there is posted and displayed in letters of equal size and as part of the same sign, statement, or other advertising medium, the total price, including all taxes, at which gasoline or motor vehicle fuel is being sold or offered for sale, designating the price for each brand or trade name of gasoline or motor vehicle fuel being sold or offered for sale.‘The size of the letters, words, figures or numerals used for the purpose of indicating or showing the total price per gallon, including all taxes, shall be of a size as provided under the provisions of Section 20883 of this article.‘(c) Nothing in this article shall be construed to apply to the price signs referred to in Article 6 of this chapter.’ (i. e., referring to price signs on pumps.)Sec. 20881: ‘If gasoline or other motor vehicle fuel is offered for sale or advertised for sale from the premises of any place of business in this State, but not under any trade name or brand name, then the words ‘no brand’ shall be used and designated on the advertising medium.'Sec. 20883: ‘All letters, words, figures or numerals used on the advertising medium referred to in this article for the purpose of indicating or showing prices of gasoline or other motor vehicle fuel sold or advertised for sale shall be uniform in size and shall be not more than twice the size of the letters, figures or numerals used to designate the brand name, or the words ‘no brand.”

HANSON, Justice pro tem.

WHITE, P. J., and DRAPEAU, J., concur.