Merit Oil Co. v. Dir. of Div. of Necessaries of Life

• Decision Date: 06 March 1946
• Citation: 319 Mass. 301,65 N.E.2d 529
• Parties: MERIT OIL CO. v. DIRECTOR OF DIVISION OF NECESSARIES OF LIFE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

319 Mass. 301

65 N.E.2d 529

MERIT OIL CO.

v.DIRECTOR OF DIVISION OF NECESSARIES OF LIFE.

Supreme Judicial Court of Massachusetts, Suffolk.

March 6, 1946.

Suit by Merit Oil Company against Director of Division of Necessaries of Life to enjoin defendant from enforcing G.L.(Ter.Ed.) c. 94, § 295C, added by St.1938, c. 411, amended by St.1939, c. 459, § 1, prohibiting display of signs relating to price on or about premises where motor fuel is sold except such signs as are required by statute to be displayed on each pump. From an interlocutory decree sustaining a demurrer and from a final decree dismissing its bill, plaintiff appeals.

Interlocutory and final decrees affirmed.Appeals from Superior Court, Suffolk County; Goldberg, Judge.

Before FIELD, C. J., and QUA, DOLAN, RONAN, and WILKINS, JJ.

E. O. Proctor, of Boston, for plaintiff.

C. A. Barnes, Atty. Gen., and R. Clapp, Asst. Atty. Gen., for defendant.

RONAN, Justice.

The plaintiff alleges in its bill of complaint that it is a retail dealer in gasoline, operating seventeen filling stations within the Commonwealth and associated with what is commonly known as the independent branch of the retail gasoline industry, as distinguished from gasoline dealers distributing the products of nationally organized companies and selling products that have been adverstised throughout the country; that it customarily sells a single grade of gasoline at one price and under one name, although under war conditions it has sold two grades of gasoline; that in order to compete with nationally advertised brands, it must sell its products at a slightly lower price; and that it is necessary to bring the price of its gasoline to the attention of motorists by means of signs in order to enable it to compete with the major companies. The bill seeks to enjoin the defendant from enforcing G.L. (Ter.Ed.) c. 94, § 295C, inserted by St.1938, c. 411, as appearing in St.1939, c. 459, § 1, which requires in the first paragraph that a retail dealer of gasoline display on each pump or dispensing device at least one sign, but not more than two signs, stating the price of the gasoline. These signs shall not be larger than eight by ten inches. The second paragraph provides: ‘No signs stating or relating to the price of motor fuel, and no signs designed or calculated to cause the public to believe that they state or relate to the price of motor fuel, other than the signs referred to in the preceding paragraph and required to be displayed upon pumps and other dispensing devices, shall be posted or displayed on or about the premises where motor fuel is sold at retail, and within view of any public highway or reservation.’ The plaintiff appealed from an interlocutory decree sustaining a demurrer and from a final decree dismissing the bill.

The plaintiff contends that the statute imposes an arbitrary and unreasonable restriction upon its right to conduct its business, and deprives it of its property without due process of law in violation of the Fourteenth Amendment to the Constitution of the United States and of arts. 1 and 10 of the Declaration of Rights of the Constitution of Massachusetts.

The right of every citizen to enjoy liberty and to acquire and possess property, including the right to engage in any lawful private business or occupation, is protected by arts. 1 and 10 of the Declaration of Rights of the Constitution of Massachusetts and by the Fourteenth Amendment to the Constitution of the United States. And the right to engage in such a business or occupation carries with it the making of contracts, the advertising of goods, the solicitation of customers, and the adoption of the various means that are usually employed to encourage trade and to extend the market for goods. Holcombe v. Creamer, 231 Mass. 99, 108, 109, 120 N.E. 354;Opinion of the Justices, In re, 271 Mass. 598, 601, 171 N.E. 234;Louis K. Liggett Co. v. Baldridge, 278 U.S. 105, 113, 49 S.Ct. 57, 73 L.Ed. 204; New State Ice Co. v. Liebmann, 285 U.S. 262, 278, 52 S.Ct. 371, 76 L.Ed. 747. But one cannot conduct his business or pursue his occupation in any way he may desire. He is subject to reasonable regulations designed to protect the public interest. A reasonable regulation governing the sales of property does not deprive the owner of his property without due process of law. Commonwealth v. Crane, 162 Mass. 506, 39 N.E. 187;Commonwealth v. Libbey, 216 Mass. 356, 103 N.E. 923, 49 L.R.A.,N.S., 879, Ann.Cas.1915B, 659; Nebbia v. New York, 291 U.S. 502, 54 S.Ct. 505, 78 L.Ed. 940, 89 A.L.R. 1469;Pacific States Box & Basket Co. v. White, 296 U.S. 176, 56 S.Ct. 159,80 L.Ed. 138,101 A.L.R. 853.

The Legislature may regulate and even prohibit the advertising of goods and prices if, in its judgment, such action is reasonably necessary for the promotion of the public safety, the safeguarding of the public health, the protection of the public morals or the advancement of the public welfare. Prohibition of advertising detrimental to the public interest has been frequently sustained by this court. The advertising of lottery tickets, Commonwealth v. Clapp, 5 Pick. 41;Commonwealth v. Hooper, 5 Pick. 42, false statements that a college is authorized to grant degrees, Commonwealth v. New England College of Chiropractic, 221 Mass. 190, 108 N.E. 895, advertising the sale of drugs, medicines or articles for the prevention of conception or for the procuring of abortions, Commonwealth v. Allison, 227 Mass. 57, 116 N.E. 265;Commonwealth v. Hartford, 193 Mass. 464, 79 N.E. 784;Commonwealth v. Gardner, 300 Mass. 372, 15 N.E.2d 222, false and misleading statements in advertisements, Commonwealth v. Reilly, 248 Mass. 1, 142 N.E. 915, advertising services in the matter of procuring divorces, Matter of Cohen, 261 Mass. 484, 159 N.E. 495, 55 A.L.R. 1309, the display of a small professional sign by an attorney outside his home and contrary to a zoning ordinance, Lexington v. Govenar, 295 Mass. 31, 3 N.E.2d 19, the soliciting of business through advertisements by attorneys and dentists, Matter of Maclub of America, Inc., 295 Mass. 45, 48, 3 N.E.2d 272, 105 A.L.R. 1360;Commonwealth v. Brown, 302 Mass. 523, 20 N.E.2d 478, and advertising the prices of eyeglasses for retail sale, Commonwealth v. Ferris, 305 Mass. 233, 25 N.E.2d 378, have all been held to be legally prohibited. Limitations have been properly imposed on methods and places of advertising. An employer seeking employees during a strike must mention the fact that a strike exists when advertising for help. Commonwealth v. Libbey, 216 Mass. 356, 103 N.E. 923, 49 L.R.A.,N.S., 879, Ann.Cas.1915B, 659. One may advertise the retail price of frames for eyeglasses if he states that the price does not include the lenses or the examination of the eyes. Commonwealth v. Ferris, 305 Mass. 233, 25 N.E.2d 378. See Commonwealth v. McCafferty, 145 Mass. 384, 14 N.E. 451;General Outdoor Advertising Co., Inc., v. Department of Public Works, 289 Mass. 149, 188, 193 N.E. 799;Fifth Avenue Coach Co. v. New York, 221 U.S. 467, 31 S.Ct. 709, 55 L.Ed. 815;Thomas Cusack Co. v. Chicago, 242 U.S. 526, 37 S.Ct. 190, 61 L.Ed. 472, L.R.A.1918A, 136, Ann.Cas.1917C, 594;St. Louis Poster Advertising Co. v. St. Louis, 249 U.S. 269, 39 S.Ct. 274, 63 L.Ed 599;Packer Corp. v. Utah, 285 U.S. 105, 52 S.Ct. 273, 76 L.Ed. 643, 79 A.L.R. 546.

We assume that the Legislature was motivated by knowledge that the sales of gasoline at filling stations were being conducted in such a manner as to defraud, deceive or mislead the public with reference to the prices at which the gasoline was sold. Price signs or, for that matter, any signs, to have any value, must be sufficient to attract the attention of the motorist, whether he be passing in the daytime or at night. The size, location, color, lighting effects, and wording of the signs are decided with reference to their ability to induce motorists to stop and to purchase gasoline. Signs may be arranged and worded so as to feature a certain grade or brand and to convey the impression that it is sold at less than the prevailing market price; or the signs may be set up so as to lead one to believe that the price displayed refers to one grade or brand when in truth it refers to another; or there may be such a wealth of signs with exaggerated and blatant statements of the virtues and prices of the products that the motorist is left in doubt and confusion; or a sign displaying a price in...