On appeal from the Chancery Division of the Superior Court, whose opinion is reported in 7 N.J. Super. 525.
For affirmance -- Chief Justice Vanderbilt, and Justices Case, Heher, Burling and Ackerson. For reversal -- Justices Oliphant and Wachenfeld. The opinion of the court was delivered by Heher, J. Wachenfeld, J. (dissenting). Justice Oliphant has authorized me to say that he joins in this dissent.
[6 NJ Page 188] The question here is the constitutional sufficiency of Ch. 274 of the Session Laws of 1949, entitled "An
Act to regulate the sale and dispensing of gasoline or other inflammable liquid at retail filling and service stations and providing penalties for violations." P.L., p. 846; N.J.S.A. 34:3A-1 et seq. Thereby, it is made unlawful for an owner, operator or employee of an owner or operator of a retail filling or service station of the class described in the title "to permit any purchaser, customer or other person not connected with the ownership or operation of such filling or service station to use or manipulate any pump, hose, pipe or other device for measuring, pumping or dispensing gasoline or other inflammable liquid for the purpose of filling the tank of a motor vehicle, or any barrel, drum, can or other container with gasoline or other inflammable liquid." Section 1. And it is ordained that no person shall engage in such operation "unless he shall have received practical instructions in the use and operation of such measuring, pumping and dispensing devices and has had practical experience under the supervision of an experienced operator in their use for a period of not less than one full working day." Section 2. Pecuniary penalties are imposed for violations, recoverable by the Commissioner of Labor and Industry. Section 3. The point made is that the action thus taken is essentially and unduly prohibitory and not regulatory merely.
On May 28, 1949, when the act by its terms became effective, plaintiffs were the operators of a self-service gasoline filling and service station in Hackensack, New Jersey, where under what is termed "competent supervision" and by means of mechanical devices and safeguards approved by the chief of the local fire department self-service of gasoline for use in automobiles was afforded the consuming public at a price approximately four cents a gallon less than the price prevailing in the area for gasoline of comparable quality. On June 17 ensuing, the complaint herein was filed. It alleges that compliance with the statute would oblige plaintiffs "to assign at least four additional men per day to dispense gasoline, at an added expense to plaintiffs," which would in all likelihood "force them to increase the retail price of gasoline, thus depriving the consuming public of the savings passed on to them
by reason of the customer's self-service system;" that these legislative restrictions are not reasonably related to the public health and safety, but are arbitrary and oppressive and not within the domain of the police power, and so constitute an invasion of the right of private property in contravention of the Fourteenth Amendment of the Federal Constitution and Article I of the State Constitution of 1947. There is a prayer that the statute be adjudged unconstitutional in all its parts and its enforcement by the defendant Commissioner of Labor and Industry enjoined.
By consent, the issue was submitted to the Superior Court "for decision and judgment on the pleadings and matters contained in the appendix" to defendant's brief filed in that court, consisting of the minutes of a hearing on the measure (then known as Senate Bill No. 245) before the Senate Committee on Public Health on March 31, 1949, which are included in plaintiff's appendix herein.
Regulations of the local fire department provide for (1) "no smoking" signs; (2) signs directing that the motor be shut off during the filling operation; (3) fire extinguishers at all "islands"; (4) safety nozzles; and (5) one attendant "assigned to duty on each island of two pumps." The use of "coin operated or automatic gasoline vending or dispensing machines" is forbidden. And it is also provided that "no gasoline be served by minors or persons who appear to be, in the slightest, inebriated."
Trade in gasoline does not hold such a peculiar relation to the public as to be "affected with a public interest" and subject to public regulation for the protection of that interest. Gasoline is one of the ordinary commodities of trade; and traffic in the article is not a business "devoted to a public use and its use thereby in effect granted to the public," but juris privati merely. Williams v. Standard Oil Co., 278 U.S. 235, 49 S. Ct. 115, 73 L. Ed. 287, 63 A.L.R. 596 (1928). For legislative price regulation and kindred supervision, public concern for the maintenance of the particular business is not enough; it is requisite that the public have a special and definite interest in the use calling for public regulation to
serve that interest. One's business is not clothed with a public interest unless it bears "such a substantial and definite relation to the public interest as to justify an indulgence of the legal fiction of a grant by the owner to the public of an interest in the use." Tyson & Bro. v. Banton, 271 U.S. 418, 47 S. Ct. 426, 71 L. Ed. 718 (1927); Wolff Packing Co. v. Court of Industrial Relations, 262 U.S. 522, 43 S. Ct. 630, 67 L. Ed. 1103, 27 A.L.R. 1280 (1923).
But the police power also comprehends measures essential to the protection of the public health, safety and welfare. Gasoline is a highly inflammable and explosive substance; and because of the potential hazards to health and safety, the mode and manner of its use are subject to reasonable regulation under this branch of the police power. Schait v. Senior, 97 N.J.L. 390 (Sup. Ct. 1922); Independent Pennsylvania Oil Co. v. Mayor and Council of Gloucester, 102 N.J.L. 502 (Sup. Ct. 1926); Morgan v. Collingswood, 104 N.J.L. 13 (Sup. Ct. 1927). The protection of the public against the unskillful and negligent use of a dangerous instrument or commodity is a familiar exercise of the police power. And it may also be invoked to serve in substantial manner the essential public comfort and convenience. Bauer v. Board of Fire and Police Commissioners of Paterson, 102 N.J.L. 235 (Sup. Ct. 1926).
It is a corollary of these considerations that the regulation of trade in gasoline, serving as it does a public need, shall not go beyond the demands of the public interest which vindicates its exercise, and shall in no sense be arbitrary or capricious, for an exercise of power that exceeds the bounds of reasonable necessity would run afoul of the fundamental common right to engage in a lawful pursuit and of the right of private property secured by the Fifth and Fourteenth Amendments of the Federal Constitution and the provision of the State Constitution cited supra. Arbitrary action under the guise of the police power is inadmissible. Jay Burns Baking Co. v. Bryan, 264 U.S. 504, 44 S. Ct. 412, 68 L. Ed. 813, 32 A.L.R. 661 (1924); Regal Oil Co. v. State, 123 N.J.L. 456 (Sup. Ct. 1939). It is essential that there
be a substantial relation between the regulation and the protection of the common welfare in an area of action within the reach of the police power; and also that the means be reasonable and appropriate to that end.
The police power is exercisable only to serve a basic interest of society; it is not invocable for the economic protection alone of particular individuals or groups of individuals. The relief sought must come within the range of a reasonable requirement for the common good and welfare; and a measure that, in the purported service of that end, goes beyond the public need is not effective to curtail the personal and private property rights secured by the cited constitutional guaranties. If the dominant purpose be the advancement of private interests under the guise of the general welfare, there is a perversion of the power. Police regulation denotes such restraints upon property, trade or business as may be fairly imposed for the good of all. The power may not be exerted to serve private interests in contravention of common rights. New Jersey Good Humor, Inc., v. Bradley Beach, 124 N.J.L. 162 (E. & A. 1940). The statute under review is not sustainable if it is designed merely to outlaw trade practices, procedures and devices that would lower the price of gasoline to the consuming public, for that would constitute restraint of trade in derogation of the general interest.
Price control through the legislative process has long had favor among the operators of gasoline filling stations. Vide Regal Oil Co. v. State, supra. The law now before us had such sponsorship before the Legislature, although the advocacy was professed to be grounded in considerations of safety related to the hazards of explosion and fire. This is shown by the minutes of the legislative hearing on the measure, offered by consent to establish the factual background in lieu of proof by depositions. But the factual data do not sustain the tendered hypothesis that the protection of the public health and safety was not the motivation for the eventual ...