State v. Miller

• Decision Date: 23 February 1940
• Citation: 12 A.2d 192,126 Conn. 373
• Court: Connecticut Supreme Court
• Parties: STATE v. MILLER.

12 A.2d 192

126 Conn. 373

STATE v. MILLER.

Supreme Court of Errors of Connecticut.

February 23, 1940

Appeal from Court of Common Pleas, New Haven County; Walter M Pickett, Judge.

Proceeding on an information charging Ralph Miller with crime of violation of the gasoline sign law, brought to the Court of Common Pleas, wherein a demurrer to the complaint was overruled and issues were tried to the court. From a judgment of guilty, defendant appeals.

Error and case remanded with directions.

Leon M. Gabriel, of New Haven (William L. Larash, of New Haven, on the brief), for appellant (defendant).

Edwin S. Pickett, Pros. Atty., and Luke H. Stapelton, both of New Haven, for appellee (State).

Argued before MALTBIE, C.J., and HINMAN, AVERY, BROWN, and JENNINGS JJ.

JENNINGS, Judge.

The sole question on this appeal is the constitutionality of certain provisions of the statute, Gen.St.Supp.1939, § 554e, quoted in the footnote.^[1] This was first raised by a demurrer to the information which was overruled, not on the ground that the statute was constitutional but on the ground that a decision of such importance should be left to a higher court. State v. Muolo, 119 Conn. 323, 326, 176 A. 401. No objection is made to the statute in so far as it requires the price of gasoline to be displayed on the pumps. The sole objection is to that portion which forbids the display of the price on other parts of the premises or in the vicinity and this opinion is concerned only with this latter provision of the statute. The first ground of demurrer claims that the prohibitory section of the statute is unconstitutional because it provides for an unreasonable exercise of the police power and, therefore, deprives the accused of property without due process of law contrary to the provisions of the Ninth Section of Article First of the Constitution of Connecticut and of the Fourteenth Amendment to the Constitution of the United States. After the demurrer was overruled the defendant was convicted after a trial. The same reason was advanced for a discharge as was set up by demurrer and the question will be considered on the undisputed finding.

The defendant was a retail dealer in motor fuel having a place of business on a heavily traveled road in West Haven. He dealt in a motor fuel called ‘ Benzoline,’ a motor fuel equal, if not superior, to ‘ regular’ or ‘ standard’ gasoline. This was purchased from an independent distributor operating only in Connecticut which purchased its product in the open market. For a long time prior to July 1, 1939, the defendant displayed on and near his premises, advertising signs stating the price per gallon of his product. This price, including tax, was customarily from one to two cents less per gallon than the more widely known brands.

Shortly after July 1, 1939, the effective date of the statute in question, the defendant was advised by a state inspector that he must discontinue the signs customarily displayed by him and that he must display on his dispensing pumps only the price signs required by the statute. An immediate depreciation in his sales of gasoline followed his compliance with this direction. On September 24, 1939, for the purpose of testing the validity of the statute the defendant posted on his premises a sign, in evidence, five hundred and forty six square inches in size, bearing the name and price of his product. The signs permitted by law are not discernible by the traveling public and only the larger and more prominently displayed form of price signs are likely to attract the transient trade. ‘ Benzoline’ is not a nationally known or widely advertised product. Neither the defendant nor his distributor can afford extended advertising or ‘ super service’ stations and they can counteract these advantages only by charging less for a fuel of equal or better quality, advertised inexpensively by signs on or near the premises of the retailer.

On these facts the trial court reached the following conclusions: (1) The inability of the defendant to display a price sign larger than that allowed by the statute caused him a loss of business, (2) the requirement is more detrimental to independent dealers than to those handling nationally advertised products, (3) the prohibition has no reasonable relationship to any proper objective of the police power, (4) is not necessary for the correction of any known evil in the industry, (5) has for its purpose and effect the promotion of the economic interest of the national oil companies at the expense of the independent gasoline distributors, (6) operates injuriously on the purchasing public by tending to eliminate the only competitive basis in the industry, and (7) deprives the defendant of his right to conduct a lawful business in a manner which is lawful and absolutely essential for the effective maintenance thereof without the justification of any public necessity.

In the absence of any cross-appeal, this finding and these conclusions would justify the discharge of the defendant. Where the constitutionality of a statute is questioned, however, every presumption and intendment should be made in its favor and the legal implications of the question are therefore considered. State v. Muolo, supra.

In view of our comparatively recent analyses of the extent of and limitations on the police power there is no necessity for repeating that discussion here. Windsor v. Whitney, 95 Conn. 357, 111 A. 354, 12 A.L.R. 669; State v Kievman, 116 Conn. 458, 165 A. 601, 88 A.L.R. 962. While the police power extends to all the great public needs ( Noble State Bank v. Haskell, 219 U.S. 104, 111, 31 S.Ct. 186, 55 L.Ed. 112, 32 L.R.A.N.S., 1062, Ann.Cas.1912A, 487), there must be some reasonable basis for interference with the right to carry on a lawful business. State v. Cullum, 110 Conn. 291, 293, 147 A. 804. ‘...