Shell Oil Co. v. City of Revere

Decision Date04 June 1981
Citation383 Mass. 682,421 N.E.2d 1181
PartiesSHELL OIL COMPANY v. CITY OF REVERE.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

Ira H. Zaleznik, Lexington, for defendant.

Charles E. Schaub, Jr., Boston (Steven A. Remsberg, Boston, with him), for plaintiff.

Before HENNESSEY, C. J., and BRAUCHER, WILKINS, LIACOS and ABRAMS, JJ.

ABRAMS, Justice.

At issue is the constitutionality of an ordinance 1 of the city of Revere banning self-service gasoline stations in that city. The plaintiff Shell Oil Company (Shell) sought a declaration that "the proposed operation of Plaintiff's self-service gasoline station is not hazardous or injurious to the public," and that the ordinance is "invalid" under the equal protection clause 2 of the Fourteenth Amendment of the United States Constitution and under Arts. 1, 7, and 10 of the Massachusetts Declaration of Rights. The city's answer denies that the ordinance is unconstitutional and asserts that the ordinance was passed to protect the public from hazards which exist in operating self-service stations. The action was referred to a master, who found self-service stations to be generally as safe as conventional stations, and safer than conventional stations as regards the incidence of fire. The master concluded that by exercising its police power to ban self-service stations while allowing conventional stations to operate, the city unjustly discriminated against self-service stations in violation of the Fourteenth Amendment to the United States Constitution.

Shell moved for confirmation of the master's report and for judgment in its favor. The city then filed alternative motions to strike portions of the report or to recommit the matter to the master, and to confirm the master's report less the stricken material, and enter judgment in its favor.

Without ruling on the motions, the judge below filed a memorandum of decision rejecting the city's attack on the subsidiary findings of the master, and adopting the conclusion of the master that self-service stations are as safe if not safer than conventional full-service stations with respect to the threat of fire. The judge concluded, however, that the city council's possible objectives in enacting the ordinance could not fairly be limited to the goal of protecting the public from safety hazards connected with self-service operation, and that the plaintiff had not met its onerous burden of disproving the existence of any possible rational basis for the ordinance. Therefore, the judge ruled that the ordinance was a constitutionally valid exercise of the city's police power, and judgment was entered accordingly. 3 Shell appealed. We granted Shell's application for direct appellate review. We uphold the constitutionality of the ordinance and conclude that the declaration should be modified to state that the ordinance bears a reasonable relation to permissible objects of legislation, including the protection of public health or safety.

At the outset, there is a question concerning the propriety of judicial review in this case. General Laws c. 231A, § 8, requires that "(i)f a question of constitutionality is involved in any proceeding under this chapter, the attorney general shall also be notified of the proceeding and be entitled to be heard." Such notice and opportunity to be heard are "conditions precedent to the entry of a declaratory decree." Court St. Parking Co. v. Boston, 336 Mass. 224, 226, 143 N.E.2d 683 (1957). Such notice is required so the interests of the Commonwealth may be considered in a constitutional attack on a statute or an ordinance. The record does not indicate that notice was given to the Attorney General. However, the Attorney General is not a necessary party to such a proceeding. See Lowell v. Boston, 322 Mass. 709, 741, 79 N.E.2d 713 (1948). Further, on one occasion the Attorney General conceded that "a zoning by-law could exclude self-service gas stations in a particular zone or throughout the town." Milton v. Attorney Gen., 372 Mass. 694, 696, 363 N.E.2d 679 (1977). 4

Moreover, the determination of constitutionality 5 by the judge is consistent with the views expressed by the Attorney General in cases raising similar challenges to this type of economic legislation. See, e. g., Purity Supreme, Inc. v. Attorney Gen., --- Mass. ---, --- - --- a, 407 N.E.2d 297 (1980); Mobil Oil Corp. v. Attorney Gen., 361 Mass. 401, 402, 280 N.E.2d 406 (1972). See also Blue Hills Cemetery, Inc. v. Board of Registration in Embalming & Funeral Directing, --- Mass. --- b, 398 N.E.2d 471 (1979). In these circumstances, since the issue is a matter of concern to numerous cities and towns, we think we should state our views on the merits which have been fully briefed and argued. Wellesley College v. Attorney Gen., 313 Mass. 722, 731, 49 N.E.2d 220 (1943).

In essence, Shell argues that the ordinance should be judged only in light of the goal of public safety. 6 Although Shell acknowledges the validity of this goal, it argues that the evidence before the master amply supported his conclusion that self-service stations are as safe as full-service stations, and that the ordinance, therefore, bears no rational relationship to the promotion of public safety, health or general welfare. Shell also argues that the city is enforcing the ordinance in a discriminatory fashion, and requests a declaration that the ordinance be declared "an invalid and unconstitutional exercise of the municipal police power."

Our task in considering constitutional challenges to legislation affecting economic issues is "both limited and clear: we must determine whether (the ordinance) represents a valid exercise of the police power. And we must do so by assessing the rationality of the connection between the legislative means adopted in (the ordinance) and those permissible public ends the (legislative body) may plausibly be said to have been pursuing." Blue Hills Cemetery, Inc. v. Board of Registration in Embalming & Funeral Directing, --- Mass. ---, --- c, 398 N.E.2d 471 (1979). If a statute or ordinance serves a legitimate purpose, and if the means the State adopted are rationally related to the achievement of that purpose, the legislation will withstand constitutional challenge. 7 Thus, one challenging this type of legislative enactment has the task of overcoming a strong presumption of constitutionality. Blue Hill Cemetery, Inc. v. Board of Registration in Embalming & Funeral Directing, supra at --- d, 398 N.E.2d 471. Marcoux v. Attorney Gen., 375 Mass. 63, 375 N.E.2d 688 (1978). American Mfrs. Mut. Ins. Co. v. Commissioner of Ins., 374 Mass. 181, 190, 372 N.E.2d 520 (1978). Pinnick v. Cleary, 360 Mass. 1, 271 N.E.2d 592 (1971). Commonwealth v. Leis, 355 Mass, 189, 200, 243 N.E.2d 898 (1969) (Kirk, J., concurring).

A statute or ordinance is not rendered unconstitutional merely because the evidence of record suggests that the "ultimate efficacy" of achieving the statutory purpose is in question, 8 or that the means to achieve the statutory end is rough, illogical or not the best available, 9 or that the means stated in the statute is not perfectly consistent with the desired result. 10 The success of the Legislature's choice need not be guaranteed.

Our deference to legislative judgments reflects neither an abdication of nor unwillingness to perform the judicial role; but rather a recognition of the separation of powers and the "undesirability of the judiciary substituting its notions of correct policy for that of a popularly elected Legislature." Zayre Corp. v. Attorney Gen., 372 Mass. 423, 433, 362 N.E.2d 878 (1977). Thus, it is not the court's function to launch an inquiry to resolve a debate which has already been settled in the legislative forum. "(I)t (is) the judge's duty ... to give effect to the will of the people as expressed in the statute by their representative body. It is in this way ... that the doctrine of separation of powers is given meaning." Commonwealth v. Leis, 355 Mass. 189, 202, 243 N.E.2d 898 (1969) (Kirk, J., concurring).

This respect for the legislative process means that it is not the province of the court to sit and weigh conflicting evidence supporting or opposing a legislative enactment. Clark v. Paul Gray, Inc., 306 U.S. 583, 594, 59 S.Ct. 744, 750, 83 L.Ed. 1001 (1939). Most laws dealing with economic and social problems are "matters of trial and error. That which before trial appears to be demonstrably bad may belie prophecy in actual operation. It may not prove good, but it may prove innocuous. But even if a law is found wanting on trial, it is better that its defects should be demonstrated and removed than that the law should be aborted by judicial fiat. Such an assertion of judicial power deflects responsibility from those on whom in a democratic society it ultimately rests the people." AFL v. American Sash & Door Co., 335 U.S. 538, 553, 69 S.Ct. 260, 265, 93 L.Ed. 222 (1949) (Frankfurter, J., concurring).

Once the Legislature has drawn a classification, "neither the finding of a court arrived at by weighing the evidence, nor the verdict of a jury can be substituted for it." United States v. Carolene Prods. Co., 304 U.S. 144, 154, 58 S.Ct. 778, 784, 82 L.Ed. 1234 (1938). Although persons challenging the constitutionality of legislation may introduce evidence in support of their claim that the legislation is irrational, 11 United States v. Carolene Prods. Co., supra at 153-154, 58 S.Ct. at 784, they will not prevail if "the question is at least debatable" in view of the evidence which may have been available to the Legislature. Id. at 154, 58 S.Ct. at 784. "(I)t is the very admission that the facts are arguable that immunizes from constitutional attack the congressional judgment represented by this statute." Vance v. Bradley, 440 U.S. 93, 112, 99 S.Ct. 939, 951, 59 L.Ed.2d 171 (1979); Henderson Co. v. Thompson, 300 U.S. 258, 264-265, 57 S.Ct. 447, 450-451, 81...

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