*1 361 Mass. Attorney Corp. General.
Mobil Oil Moore) in and Judge Judge Lumbard Chief (joined by supra. McMann, ex rel. Smith United States of defendant’s denial no error in the There was trial. motion for a new denying new motion trial
Order affirmed. for Attorney Corporation vs. General. &others Mobil 15, 1972. 10, 1971. March Suffolk. December Braucher, Reardon, Quirico, Tauro, C.J., Cutter, Spiegel, Present: Hennessey, JJ. & Law, Lottery. Jurisdiction, field. Constitutional Gasoline. Federal Equal commerce, power, law, process Due Police of Interstate Declaratory Jurisdiction, protection laws, Equity of Gasoline. Declaratory Practice, Counterclaim, Equity Pleading relief. and proceeding. In a Promotional contests Promulgation by the Federal There G. L. G. L. conducted mined games not chase necessary not violative claim the defendant §§ possession not a common nuisance under G. L. c. did motor vehicle fuel is a advertising. vehicle fuel nor the decree as to the § 7; suit in 7, 20, offering preempt c. c. giving create a conflict and the Federal by of chance in the food deny equal protection no merit to the facts in chance “in payment by to make them equity against of § the field of game sellers motor vehicle fuel lottery [412] 6C, 6C, interest prizes by prizes due promotional constitutionality prohibiting prohibiting pieces process for of a contention that tickets. between by connection question predominates seeking participation proper sellers of regulating promotional sellers games lotteries used in of law. Trade Commission contests and of laws to sellers of motor vehicle [406-408] it and G. retailing and Attorney was a declaration exercise for motor connection of G. offering motor conducting by [412-414] permissible. prizes the sale G. L. c. lacked the element did not L. c. vehicle L. c. General who did not vehicle determined with 271, 6C, prohibiting of the 271, 6C, prohibiting 271, 6C, area § of a rule violate prizes fuel. police contests and 20, prohibiting the goods for a [405-406] fuel is invalid § § sellers of § of multimarket applicability of require industries [408-412] power prizes deter- G. or services” games declaratory by regulating a counter- L. e. sellers of chance price were pur- fuel did Corp. *2 many goods nonfuel in com- who also sold at their service stations goods petition to 6C did with other sellers of nonfuel whom § C.J., dissenting. apply. J., joined by Tauro, Hennessey, [414-418] Supreme for in Judicial Court filed the Equity Bill county the of on October 4, Suffolk reported by Cutter, and J. suit was reserved (William George Ryan, Howard Jr., Donovan J. E. A. him) Wayne, Roy P. for Mobil Oil Cor- & Creedon with poration & another. Glendinning Companies, Capeless
Robert T. Inc. for Attorney Timothy O’Leary, for General, F. Assistant Attorney the General. county equity In J. this bill in filed the
Braucher, plaintiffs 271, pro- c. that G. L. court, the seek a declaration § by “An Act 6C, 602, entitled, inserted c. 1968, St. by offering prizes hibiting giving or the chances applied gasoline to them. is as stations” unconstitutional reported, decision, without The matter was reserved and by single justice. us the have before to this court including pleadings agreed a facts and statement lengthy exhibits. substantial number of (Mobil), Corporation plaintiffs are Mobil Oil doing corporation in Massachusetts business York New fuels; of motor vehicle and retailer as both a wholesaler Joseph Kulper, & Mile Service owner Four Sales G. purchases sells from Mobil and who Westfield, (Glendin- Companies, Glendinning Inc. retail; it and at develops plans, corporation ning) that a Connecticut , promotional including promotions, arranges sales in Massachusetts customers and mails to its contests, necessary and con- conduct such to materials tests. seeking counterclaimed, answered
The defendant continued valid, is the statute a declaration § prohibited L. game promotions c. is G. use pieces game used prohibits and that lotteries, which promotions nui- game a common are in connection with possession § makes 20, which c. under L. sance G. Corp. v. lottery tickets unlawful. The defendant also filed a de- Glendinning may party murrer to the bill so far as be a Glendinning standing thereto, the reason that lacks challenge constitutionality of the statute. provides, General c. Laws “No dealer or 6C, engage promote seller motor vehicle any way operate any shall in, or in fuel game by person contest or which a may, gifts, prizes as determined chance, receive gratuities goods in connection with the sale or services. apply game This section shall such contest or purchase required participate whether or not a *3 added). (emphasis therein” Violations statute are punishable by imprisonment. either fine or
The facts are here set forth. Mobil is a wholesaler and Kulper retailer of motor vehicle fuel. is also a retailer operations such fuel. However, the business of both Kulper Mobil and are not limited to the sale of motor operated by vehicle fuel. At service stations Mobil them, Kulper compete and with other merchants in the sale of tires, batteries, oil, anti-freeze and other automotive parts Competition and accessories. also exists between Kulper providing Mobil and and other merchants re- changing, lated automotive services such as tire car wash- ing lubricating selling, installing and as well as and re- pairing sundry parts motor vehicle Also, accessories. companies compete both with other merchants in the sale products cigarettes of nonautomotive such as soft drinks, products and razor blades. All of these and services are provided by Kulper premises Mobil and at the same as, and in with, connection the retail sale motor vehicle fuel.
The financial data before us indicate that the sale of products other than motor and Kul- vehicle fuel Mobil per important part constitutes an and substantial of their example, For overall business. the first six months of operated by at the two service stations it in the Bos- selling products $60,000 ton Mobil more than area, sold during Kulper Also, other than motor vehicle fuel. products sold $10,000 more than of such at his service Corp. Mobil Mobil sold more than wholesale, station Westfield. At nonfuel in the Boston area in $1,467,131 these eight in the first $1,284,560 1967 and about them months of 1968. that there are
The record before us also demonstrates which com- substantial number of diverse businesses pete Kulper prod- Mobil and in the sale of nonfuel only competing car These businesses include ucts. repair garages body shops, auto automobile washes, dealerships, stores, and ten cent but also five automobile department stores, stores, discount stores, automotive variety super- drugstores, stores and stores, hardware markets. now in contro-
Prior enactment of the statute to the promotional games versy, at contests Mobil utilized encouraged operated their use it and service stations among bought who vehicle service station dealers Mobil’s resold it under from Mobil and fuel at wholesale part right no on the however, There was, trade names. games. participate compel in the dealers to of Mobil to would indicate facts which The record is devoid of Although any compulsion the ad- ever exerted.1 *4 games purpose utilizing to increase the was mitted necessary participate purchase in the con- no sales, piece game person obtain a The fact that a could tests. upon any payment any purchase without without visiting participating to the made known station was the publicity. public through extensive businesses those indicates that The record before us Kulper non- competed in the sale of Mobil and which with games promotional con- conducted fuel also products.2 The those sale of in with the tests connection participation declined us indicate that dealer Statistics before games. throughout of the most following nonfuel the us demonstrate The exhibits before plaintiffs: competition games promotional with in sellers conducted Company, Sears, 2”; stores, “Holiday & Roebuck for General Tire “Money Supermarket, Days Spree”; Shopping Iandoli’s “Fiesta “Surethingo”; Stores, Lech- Letters”; Big Discount Food G Sales, mere “Win a Week.” Corp.
Mobil operated by competing and contests these merch- essentially operated ants were similar to those that were by Kulper, they giv- Mobil in each involved ing, selling aat store, location, service station or other requirement purchase payment, but without the game pieces which alone or in combination other game pieces might, as entitle the chance, determined recipient prize. Finally, to a dem- exhibits before us onstrate that substantial measures were taken plaintiffs to insure the fairness of the contests and that significant there was no prices difference in the retail charged by using promotional games dealers in contrast prices charged by to the dealers who did not use such games.
1. We consider first the defendant’s counterclaim, which he seeks a declaration that the continued use of game promotions prohibited by § G. L. c. 271, 7, which game pieces outlaws lotteries, and that the used in con- nection with the are a common nuisance under § L. possession G. c. lottery 20, which makes tickets unlawful. permissible use of a counterclaim is suits de-
claratory relief. Growers Inc. Outlet, v. Stone, 333 Mass. 437, 441. Also, fact that we are here concerned with possible enforcement of a criminal statute does not preclude rendering declaratory us from decree. Sun Oil Co. v. Director the Div. on the Necessaries Life, 340 Mass. 235, 239. Commonwealth v. Baird, viewpoint public prosecutor, 746, 755. From the constitutionality of G. L. c. 6C, would have greatly importance question reduced if the conduct illegal special provision were event. The for deal- might ers or sellers of motor vehicle fuel then have re- procedural significance, medial or but it would not have *5 great significance regulation as a of commercial conduct. special provision A declaration that is constitutional meaning or quite unconstitutional would have a different independently illegal if the conduct were from its mean- ing legal. if the conduct were otherwise In these circum- 361 Mass. Corp. Attorney v.
Mobil rights parties’ stances we think a declaration of the proper. view, in our termi- also, Such a declaration will uncertainty controversy upon the and attendant nate widespread than use these others sellers. L. 231A, G. c. consistently
This court has three elements held that lottery. any a must exist order for scheme to constitute prize, payment price, The three are of a a elements Wall, some element of chance. Commonwealth Lake, 264, 72. Commonwealth v. 317 Mass. Mass. Rivers, 267. Commonwealth price “something of have also that means value stated merely consideration, or the formal technical registering attending such as one’s name or at a certain support place, might which be sufficient consideration to a 304 Mass. contract,” Heffner, Commonwealth price participants in that “the must come game part payments at least as for their chances advantage [one and that the indirect ing game to the . . . conduct place price business] at his is not in itself a paid by participants.” Wall, Commonwealth v. 295 Mass. Finally, emphasized whether or not 70, 74. we have that lottery depends upon particular scheme amounts to a particular Com facts and circumstances each case. monwealth v. Heffner, 521, 524-525. prize
In this the elements of chance and were case, participating present. persons calling In each at case, game pieces which service stations were entitled to receive pieces game or with other themselves when matched recipient prize. might it However, was entitle the to a public through frequent and clear ad- made clear to the vertising participants required to make were not payments purchases participate in order to games. Nothing that this basic the record indicates not understood. rule was necessary price argues
The defendant
game
present
increased
use of the
inasmuch as the
participating
He re-
stations.
of business of the
volume
jurisdictions
have
on
from other
which
lies
decisions
*6
Mobil Oil General. Boatright, Inc. v. so held. Winn-Dixie 115 Stores, App. Lucky Ga. 645. Cohen, Calendar Co. v. 19 N. J. Schillberg Safeway v. 399. ex rel. State Stores, Inc. 75 Wash. 2d 351. He also relies on the so called “bank night” cases decided this court. Commonwealth v. 295 Wall, Mass. 70. Commonwealth v. Heffner, arguments 521. His fail. night” distinguishable
The “bank cases are from the present whereby case. Those cases involved schemes prizes were awarded at a theatre or to, between, close performances. times of Attendance at the theatre at the awarding prizes required. time of the In each night” arrangements of the “bank cases, were although required participants pur- that, so, not to do who gained advantage chased theatre tickets a distinct over purchase those who did not them. v. See Commonwealth supra, supra, Wall, 73; at Commonwealth v. Heffner, at game promotions involved the case before us did require presence any participant any par- at place. pieces Winning ticular were redeemable over a period charge, purchase, pay- of weeks. No admission required by participating ment was games, service stations in the publicized throughout a fact which was well their Finally, purchased products participat- use. ing those who at gained advantage service stations no whatsoever over pieces game making any those their who received without purchases.
In
of our earlier decisions,
view
we now hold that the
upon
incidental increase in business
attendant
the use
promotional games
present
like
case
those involved
type
necessary
is not the
of consideration
to make these
games lotteries. We decline to follow decisions from other
jurisdictions which have reached a different result. On
contrary,
ample authority
we observe that there is
Caples
Co. v.
the result which we have reached here.
Cir.).
(D.
232
States,
United
F. 2d
C.
California
Regal
Corp.
v.
Petroleum
Fresno,
Gasoline Retailers
844. State Bussiere,
Maine,
Inc. 50 Cal. 2d
Corp. v.
Big
Cudd Aschenbrenner,
Mobil v. Fed (5th Cir.). Commn. Kritzik F. 2d Cir.). (7th eral Trade Commn. 125 F. 2d Schaf Mastrullo 404-405. Leimberg, fer alone Ryan, those factors However, area do not to hold that commercial every us require its yield must acted, where Commission has a State of its same area for the benefit power regulate must own To make we citizenry. such a determination inquire further. has said that Court of the United Supreme States of state laws Court, validity considering
“[t]his the light of . . . the same touching subject, federal laws *8 has conflicting; made use of the following expressions: contrary to; difference; occupying field; repugnance; the irreconcilability; violation; curtailment; inconsistency; and interference. none expressions provides But of these an infallible constitutional test or an exclusive constitu- yardstick. tional In the final there can be no analysis, one crystal clear marked formula.” Hines v. distinctly Davidowitz, 312 Pennsylvania Nelson, 52, U. S. 67. v. 350 U. 497, S. 502. The enunci- “controlling principle” ated in the Hines case was whether statute State “stands as an obstacle to the and execu- accomplishment tion of the full purposes Congress.” objectives Hines v. Davidowitz, 312 at 67. This U. S. articulation meaning clause has since been supremacy adhered to by the on Supreme Court the United States numerous occasions. Perez 402 Campbell, 637, v. U. S. Perez case, 649-650, and cases cited. In the the Supreme Hines rule as Court of the United States restated the “any follows: state frustrates the full legislation which effectiveness federal law is rendered invalid Supremacy Clause.” U. S. at 652.
In the Perez case, a statute prohibited opera- State tion of a motor vehicle by any person whom there against was an unsatisfied motor vehicle tort judgment, regard- less of whether a dis- person affected had obtained in charge bankruptcy. Supreme Court of the United States declared that the statute was invalid as it frus- Corp.
Mobil Bankruptcy trated the full Act which effectiveness give opportunity in . intended to debtors “a new life .. unhampered by pressure discouragement pre- existing Campbell, Perez v. 637, 648, debt.” 402 U. S. quoting from Local Loan Hunt, Co. v. U. S. important determining
An factor to be considered particular legislative whether preempted by has area of concern been any mani
Federal is the existence of law expressed par festations of intent, otherwise, that the exclusively. occupy ticular Federal law was to the field Congress “The intention of exclude from exert States ing police power clearly their must be manifested.” Napier v. Atlantic Line R.R. 605, 611, Coast 272 U. S. and cases cited. Haseotes, Commonwealth Corp. v. Sante 236. Rice Fe Elev. 331 U. S. Pennsylvania 231-236. Nelson, 350 U. 501- S. An examination of the includ- Commission, rule of the ing scope existing its at effect, and the circumstances adoption, the time of its no clear intent that demonstrate may promotional legislate the games States the area of By terms, and contests. its the rule is limited coverage only games regulates its and contests that it *9 gasoline conducted industries. the retail food and surrounding promulgation circumstances its indicate only the retail food and industries were investi- gated by designed the Commission and that the rule was prevent potential to actual and abuses which were found in to exist those industries. Statement of Basis and Pur- pose, Regulation in the Trade Rule on of Chance Games Retailing Reg. 34 Food and Gasoline Fed. Industries, (1969). 13302 mini- believe that the rule was intended to establish regulation
mum standards of
which the Commission
deceptive
necessary
protect
public
deemed
to
from
history
practices.
rule is
acts and
Nowhere
pre-
were to be
there
clear indication that the States
prior
legislating
In
fact,
in this area.
cluded
411
Furthermore, as above, observed the rule was gated protect public potential from the actual and abuses found to exist this area. Laws c. General accomplish 6C, was enacted to the same result. As we way view the matter, our statute no ob- “stands as an accomplishment stacle and execution of full purposes objectives” Hines v. of the Commission. contrary, Davidowitz, U. S. it seeks On purposes objectives. principle to further those “The regulation to be derived from our decisions is that federal preemptive of a field of commerce should not be deemed *10 regulatory power persuasive of state in the absence of — regulated subject reasons either that the nature of the permits Congress conclusion, matter no other or that the 412 Mass. Corp. Attorney
Mobil unmistakably has so ordained.” Florida Lime & Avo cado Inc. Growers, Paul, 373 U. S. 142. Neither 132, reason exists here. plaintiffs’ respect preemp- argument
The final with predominates tion that Federal interest the area advertising. disagree. multimarket We repeatedly “[t]he com- We have stated that interstate power merce clause did not from the states the withdraw legislate respect concerns, with to their local even indirectly incidentally though legislation may persons engaged in it.” affect interstate commerce and Commonwealth v. New York Cent. R.R. 350 Mass. Armburg, quoting from Boston & Maine R.R. v. Haseotes, 238. Commonwealth v. U. S.
230, 234. prohibit question intra-
The
here in
does not
statute
advertising and sale of motor vehicle
state or interstate
only
Kulper.
at
is directed
fuel Mobil or
statute
place
types
promotional
take
activities which
certain
promotion
and sale
Massachusetts.
fact that
subject
been the
sold here and elsewhere has
Legislature
prevent
our
Federal concern does not
adopting
affecting
promotion
regulations
reasonable
Mueller v. Commissioner
within Massachusetts.
and sale
New
Head v.
Health,
Pub.
See
Optometry,
424, 431-
Bd. Examrs. In
374 U. S.
Mexico
argument
plaintiffs
4. The
make the further
arbitrarily inter-
because it
is unconstitutional
statute
promote
right
their busi-
feres
their
to conduct and
process. Four-
due
violative of
is, therefore,
ness and
Constitution.
States
Amendment
to the United
teenth
Rights.
do
We
of the Declaration
1, 7, 10, 12,
Arts.
agree.
proc-
begin
issue as to due
of the
our consideration
by stating
“[a]
rule that
the well settled
ess of law
validity
presumptions
made
favor
are
rational
every legislative
is to be
Enforcement
enactment.
legislative
only
excess of
is in manifest
when it
refused
*11
413
401
361 Mass.
Attorney
Corp_.v.
General.
Mobil Oil
Finnigan,
power.”
379.
378,
326 Mass.
Commonwealth
Against
v. Colan
Discrimination
Massachusetts Commn.
gelo,
Inc. v. Commis
390.
Coffee-Rich,
Mass.
Equally
422.
well
Health,
sioner
Pub.
348 Mass.
op
principle
one cannot
is the
established
our law
profession
pursue
manner
his
his
or
erate
business
regulations
subject
reasonable
he sees
that he is
fit,
operation
govern
of the
and conduct
established to
the
particular
Fitch
Police
business. Slome
Chief
Libbey,
burg,
In McMurdo v. Getter, many right others, like [to business], “that conduct one’s — power, may police qualified be or restricted under the power, precisely ra- to take delimited, the broad never safety, public protection tional of the action for the good the order.” health, morals, comfort and Whether police statute here involved is a valid exercise power depends upon real and substan- whether it “bears a safety, public morals, or some health, tial relation to the phase general Inc. v. other the Coffee-Rich, welfare.” quot- Health, 414, 422, Commissioner Pub. 348 Mass. ing Sperry Director Div. Hutchinson Co. v. the & on the Necessaries 307 Mass. Life, Applying the this we conclude that case, above tests to police power present statute is a valid exercise of the promo- prohibit types in so it far as seeks to certain activity tional in connection the sale of with public. Undoubtedly, many Legislature had con- Among siderations mind when it enacted this statute. prevent possible them must have been desire including deception fraud and which abuses, unfairness, might any game Although games of chance. exist anti-gambling question in tery here do not violate our lot- Legislature appropriately broaden statutes, our could jurisdictions. as has been done in other statutes, those importantly, present at More statute not directed generally games of chance but rather at of chance goods. In in connection the sale of this when used Corp. v. respect, Legislature by its action determined play part process. no in the sales should *12 say reason. its determination was without cannot price, properly It could that considerations believe many quality, versatility, so are some of the and forth making intelligent employed con- valid criteria to be in purchases, is to be of such criteria sumer encouraged. and that use disapprove it could hand,
On the other prize possibility winning a óf element chance and the competing among as bases for consumer differentiation products. rationally Legislature might seek to dis- The courage though attrac- real, unconscious, sometimes solely competing products, tion because to one several prize may public interest. The be as not in the won, question secure that ob- statute here was intended to jective. process of it is not violative of due Therefore, law. plaintiffs argue is also that the statute uncon- deprived they being equal
stitutional because are protection premise here is that the of the laws. Their only applies pro- statute fuel sellers vehicle using in connection with the hibits them from the contests including any products those sold sale similarly using competitors prohibited are not who They contains an the contests. conclude that statute classification and one that cannot be sustained irrational protection equal and Fed- clauses of the State under the Amendment to the United eral Constitutions. Fourteenth Arts. Declaration 6, 7, States Constitution. Rights. argument the statute First,
This has two branches. reading, possible on one overbroad, indeed, said to be promo- “grossly it is not limited to overbroad,” because the sale of motor vehicle in connection with tional because it it is as underinclusive Second, fuel. criticized apply competing goods sellers and services does not appears argument fuel. other than motor vehicle Mary- prevailed court in a trial have on both branches Maryland suggested appeal that the On court land. Mass. 401 Attorney Corp. promotional by construction to could be confined statute games relating refused fuels, sale of motor vehicle to the pass equal protection of an absence issue to evidentiary hearing, on the the case for such remanded County Triplett, hearing. Charles State’s 255 Md. 285-288.3 properly is not overbroad. statute, read, think the
We impose Legislature an intended to do not think the multiple busi- irrational restriction on owners of dual prohibition “dealer or seller nesses. The is directed to a apply may properly be read to of motor fuel,” vehicle capacity. may as a barber he do to his acts What his sta- several miles from at an establishment *13 example, The “connection” con- is not affected. tion, templated by awith statute cannot mean a connection by applies specific purchase, its terms since the statute purchase required.” antici- “whether or not a Without every scope pating possible question of the stat- as requires a functional relation to ute, we think it by selling fuel, business of motor vehicle whether associa- by customary comming- selling area, tion with the same by ling specific of functions, referral, othewise. vastly one is not different from read, So statute promotional games sale limited to “in connection with the deny of motor fuels.” a was held not Such statute protection equal N. J. of the laws in United Stations of (US) Getty Super. affd. 459, 474-476, Co. 102 N. J. Oil opinion Spina Getty on Del below sub nom. Oil Co. games The “in 54 N. J. 150. extension to connection part goods of the business with” other and services when selling extension, of motor vehicle if it is an is rea- fuel, enforceability. sonable in the interest of clarification and promotional The record does not establish that misleading gasoline of dealers distinctive have they adversely price affect the retail characteristics, Maryland a statute which We observe there now exists prohibits nection promotional all retail sellers con the use of Md., 27, goods. of all Anno. Code art. with the sale retail 369A. 361 Mass. Corp. v. gasoline, they gasoline
of or that involve the coercion of by landlord-suppliers. argued, dealers prohibition it is Therefore, disapproval general
must rest on games, singling gasoline and the out of sellers is irra- tional and invidious. recognized, have that retail dealers in however, may purposes vehicle fuel for some be treated as
single group presenting special problems. G. L. c. §§ Fitchburg, Police 295A-295C. Slome of Chief of 304 Mass. v. Director the Div. 187,192. Merit Oil Co. on the Necessaries 319 Mass. Common- Life, 301, 306. Sperry Compare wealth v. Slome, Mass. & Hutchinson Co. v. Director the Div. on the Necessaries Life, 419; Sun Co. v. Director Div. on the Necessaries Life, typical gasoline station is feature of our land- a familiar scape, easily distinguished from most other retail estab- every station few lishments. Most days us visit purchases. premises be to make small must easily The station sells accessible to drive-in customers. products distinguished primarily standardized brand by sup- many are leased from or run name, and stations pliers scope. They thought particu- been national have price larly and to unfair vulnerable to destructive wars *14 practices resulting competitive pressures. from thought, Legislature reasonably
The
could
have
typical
of
some or all of these features
the
1968, that
problem promotional
gasoline
made the
of
station
respect
pressing
respect
them than with
more
with
adequately
us
record before
other retail merchants.
by gasoline
of
of chance
shows that in 1968 the use
very
in Massachusetts and
extensive, both
stations was
prospect that
it
there was a real
elsewhere, and
types
might
of retail establish-
more so.
become
Other
gasoline sta-
of the characteristics of
ments share some
given
might
considera-
similar
and
well have been
tions
studying
Legislature.
after
Commission,
tion
the
responding
subject, promulgated
to actual
same
a rule
the
industry
potential
as
as well
in the retail food
and
abuses
417
401
361 Mass.
v.
Corp.
industry.
Pur-
of
Basis
in the
Statement
pose,
Regulation
in the
of Chance
Rule on Games
Trade
Reg.
Retailing
34 Fed.
Industries,
Food
Gasoline
(1969).
competition
the
between
There is some
13302
cigarettes and
such items as
two
the sale of
industries
did not deal
soft
the Commission
drinks, but
directly competitive
lubri-
batteries,
as tires,
more
items
repair
vehicle
of
cation
parts
the installation and
authority
legislative
ex-
is
and accessories. When
every
proper
need not embrace
area,
it
erted within
Legislature
problem
field. The
within that
conceivable
may
step
addressing
proceed
to the
itself
time,
one
at a
legis-
phase
problem
most
to the
seems
acute
which
v.
Election Commrs.
lative
McDonald Board
mind.
v.
Mulligan
Chicago,
Hilton,
305
review need legislation process any more due than does the clause. See Opinion M Em 827, 830, G & Justices, ployment Inc. Serv. Commonwealth, *15 House, Inc. Brook 437; Marshal Rent Control Bd. of Cleary, line, 358 Mass. Pinnick 686, 694-695; 1, Mass. 27-28. everyone representatives as of know, does,
We Corp. v.
Mobil
promote,
special
in the
economic interests sometimes
public
legislation
ham-
name of
string
which will
interest,
the
Legislation
competitors.
otherwise
their business
support-
is
some of its
not,
course,
valid
invalid because
ignoble
good
validate
ers have
nor do
motives
motives;
arguments
In
made
invidious
view of the
discrimination.
appropriate
in this
to state
case,
deem it
however, we
ques-
hint
that the record contains no
that the statute
supported by
stores,
here
retail food
dealers,
tion
tire
competitors
gasoline
does it
or other
stations. Nor
any
competitors
as a result
show
loss of business to
gasoline
have
stations
fact that Massachusetts
operate promotional games
fear of criminal
for
ceased
prosecution for
of the statute.
violation
Baking
plaintiffs’ heavy
Hall-Omar
reliance on
695,
Indus. 344 Mass.
Co. v. Commissioner
Labor &
misplaced.
required
“hodge-podge”
is
There a
statute
peddlers
general
pay
which
fees,
license
substantial
significant
to the Common
were
source
revenue
companies
separately
for
licensed
wealth. Milk
were
bakery com
held that
much more
panies,
fees. We
moderate
companies
competed
drivers,
which
with milk
protection
equal
noted that
laws.
were denied
the
statutory
subject
special
found
but
concern,
milk is a
no
concern
reasonable relation between that
and more
placed
other
onerous burden
on
itinerant sellers.
sit
promotional games
comparable if
uation here would be
prohibited sale
mer
were
connection
except
at a
station.
chandise
merchandise sold
Compare Vigeant v. Postal Tel.
Mass. 335,
Cable Co. 260
Morey 341;
553, 567;
Doud,
Smith v.
283 U. S.
Cahoon,
U.
457,
S.
county
declaring
A
is to
decree
enter
court
promotional games,
operation
as described
plaintiffs,
previously operated by
herein
as
§§
“lottery
prohibited
7,
L.
the so called
G.
c.
declaring
L.
271, 6C,
c.
statutes,” and further
that G.
plaintiffs,
applied
inserted
as
St.
c.
*16
Mobil Oil provision United or not States does violate Massachusetts Constitutions. ordered.
So (dissenting, Tauro, J. with whom C.J., Hennessey, joins) majority opinion. my I the In dissent from view plaintiffs is the statute being deprived unconstitutional because the are equal protection laws. The applies only pro- statute vehicle fuel sellers using them hibits the contests in connection with any products including sale of those sold competitors prohibition. who are under a similar language The statute, with immaterial deleted, is clear unambiguous, “No viz.: dealer or seller of motor engage operate promotional [shall vehicle fuel . . . games] in or goods in connection with the sale or services.” A careful examination in the case record and the controlling leads authorities me to the conclusion that the does statute contain an irrational classification and one protection equal that cannot be sustained under the clauses the State and Federal Constitutions. Four- teenth Amendment United States Constitution. Rights. 6, of7, Arts. the Declaration of plaintiffs proof an have onerous burden in their attempt unconstitutionality to establish the of the statute. presumptions All rational are made in favor of the valid- ity every legislative enactment. Commonwealth v. Finnigan, Corollary Mass. rules which emphasize principle fully this have been set out in the opinions concurring main and of this court in the recent Cleary, case of Pinnick v. 14, 28, 32-33. concurring opinion of Chief Justice Tauro in the appropriately p. Pinnick case states, substance, at proving unconstitutionality the task of a statute virtually insuperable in the absence of a factual foun- evidentiary in the record, dation established an hear- ing plaintiffs I other means. have concluded that Corp. v. establishing the case before us have succeeded argu- invalidity
constitutional of the statute because their *17 speculation premised, merely upon and ments are not upon agreed guesswork comprehensive statement of but a meaningful incorporates and of facts which a number relevant documents. majority my opinion
In of the court have reached the perspective of the in the an erroneous decision as viewed suggest agreed I do not that this statement of facts. be issues should consideration of the constitutional court’s carefully preclude considera- as to so circumscribed are within the of which the court concludes tion factors knowledge. rea- the court’s However, of common realm agreed soning deference to the should reflect a reasonable Attorney particularly in of the fact that the view facts, party agreed participated the state- as to General has County Triplett, Charles ment. Cf. State’s the to consider the court declined 255 Md. wherein evidentiary protection equal of an in the absence issue record. reasoning majority’s inconsistency the between agreed especially shown in facts
and the statement
protec-
regard
equal
majority’s
the
statement, with
reasonably
Legislature
have
could
“[t]he
issue,
tion
thought,
features
some or all of these
in
problem promotional
typical gasoline
made the
station
respect
pressing
than with
them
more
reading respect
A fair
retail merchants.”
other
agreed
exhibits does
and attached
facts
statement
contrary
support
speculation.
infer-
In
fact,
this
fairly
statement.
from the factual
arises
ence
protection
equal
has
issue
below of
discussion
placed,
in
framework
be,
I conclude it should
as
been
parties.
presented
to us
facts as
of the relevant
Kulper sell
and
Mobil
demonstrates that
The record
products
the sale
many
and that
nonfuel
diverse
and
portion of their
products
a substantial
constitutes
num-
a substantial
also shows that
The record
business.
Kulper
compete
with Mobil
sellers
ber of nonfuel
Mobil products the sale of nonfuel and services. These com- peting among sellers include, others, stores, automotive dealerships, body shops, automobile auto stores, tire hard- department competing ware stores and stores. The among and services include, others, the sale cigarettes tires, changing batteries, and soft drinks, selling, installing tires, automobile lubrication, and the repairing sundry parts motor vehicle accessories. Kulper, prior
Mobil and to the enactment of the statute, engaged promotional games in the use of and contests. The fact is also well documented the record that those competition Kulper engaged with Mobil and likewise promote competing similar and contests to *18 products. provides The statute that sellers and dealers of motor vehicle fuel shall not utilize such “in con- goods By nection with the of sale or services.” its terms, prohibit competition it does not those in with Mobil and Kulper using promote and contests to competing products the sale of and services. general principles governing of law the constitu- challenge
tional of equal a State statute as a denial of protection of the laws are well established. “While a power State has making broad when it comes to classi- may fications ... it not draw a line which constitutes an against particular invidious discrimination class. . . . Though variously the test has been stated, the end result is whether Levy the line drawn is a rational one.” Louisiana, 391 U. S. this Likewise, court has regard stated that “statutes in to the transaction of busi- operate equally upon ness must all citizens who desire engage in the business, and . . . there shall be no arbi- trary discrimination between different classes of citizens.” Commonwealth v. Hana, Mass. 266. Hall-Omar Baking v.Co. Commissioner Labor Indus. & To be sure, however, the constitution does not require every necessarily instance statute must apply equally persons. to all “The Constitution does not require things which are different in fact... to be treated Corp. v. Tigner though they Texas, same.”
in law as were the 310 U. 141, 147. S. applied
Having principles, to be in mind these the test Legis- any basis for the here is whether there is rational prohibition promotional games chance, but lature’s only by operated in- whose business individuals when differently, selling is cludes motor fuel. Stated vehicle concluding justification sale that the there rational products by fuel sell motor vehicle nonfuel those who by products different from same the sale of those those whose business does not include the sale of justification I fuel? exists vehicle believe that no such either in fact or in reason.
My reading pri- me that it was the statute convinces marily designed prevent potential the actual and abuses promotional games found to exist in and con- the use of prod- tests when conducted in connection with the sale by Legis- evil, ucts and services. The as determined promotional selling promotion lature, is itself where the prohibition operating games consists and contests. contained in the is addressed motor staute, however, prod- only applies sellers sale of all vehicle fuel to the Obviously, ucts sold them. is not one the classification type product applies on based to all since it sold fuel sellers. The distinction seems motor vehicle *19 solely person: motor vehicle fuel to be one of he who sells activity large part his business has as a or small of promotion specially his of nonfuel become so affected that prohibited, premises on the same is whereas competition prod- in with him in the sale of nonfuel those exempted sell no from the ucts who prohibition. motor vehicle fuel are justification no reasonable The record establishes in the evils found to the distinction made statute. No promotional selling unique were to those whose exist activity included the sale of motor vehicle fuel. business proscription promotional In a rule for the of fact, similar by promulgated games the Federal Trade Commission potential response abuses found a actual and was Mass. 401 423 Corp. Attorney food as well as the industry gaso- to exist the retail (1971) § F. R. 419.1. industry. line 16 C. Statement Trade Rule on Games of Purpose, Regulation Basis in the Retailing Industries, Chance Food Gasoline (1969). Furthermore, Fed. the record before Reg. us not games does indicate that use the fuel as industry compared was with particularly widespread the contrary, other industries. On the record demon- strates that such and contests used were and ad- vertised in with the connection sale of countless products than other gasoline by range broad merchants compete who with sellers. evils Other which use of might accompany promotional games, such as coercion wholesalers on their franchisees to participate in the games and increases prices retail products, are not borne out the record. if they Even were, how- I ever, believe that such evils not would be unique to motor vehicle fuel sellers but rather would exist as to all merchants of every class and who use description promo- tional or contests.
In Hall-Omar Co. Baking Commissioner Labor & Indus. we were faced type restric tive classification similar to that which 6C has imposed on gasoline sellers. There, plaintiff bakery seller challenged the law relating hawkers and L. peddlers, G. c. which required driver-salesmen of bakery products, among others, to peddler’s liceneses, obtain but exempted from the license requirements driver-salesmen of dairy products. The statute, intended regulate potential abuses which in the field, existed peddling addressed to a restricted persons class of rather than against cer tain In peddling practices. the statute uncon declaring stitutional, this “Milk said, court is a subject special statutory But concern.... that does justify unequal application laws regulating itinerant selling. Section milk gives companies full from the exemption require of a pedler’s ment hawker’s and It license. thus a *20 regulation itinerant which makes an selling arbitrary distinction between businesses so which, far as their 361 Mass. Attorney Corp. v. concerned, are to such classification
attributes relevant perceive ‘rea no basis for the distinction alike. are regulations purposes sonably seek which related to the ” language accomplish.’ at 707. above to present applicable equally The record con case. capacity gasoline sellers as sellers their me that vinces products sellers of from other no different of nonfuel are potential evils or and that the actual nonfuel promotional games upon either the use of attendant being group sellers case, That are the same. similarly differently may situ from others not be treated Triplett, County Charles State’s ated. See 270.1 255 Md. seeking sustain the constitution- defendant, in
ality
court
decisions of this
relies on the
statute,
regulating
legislation
size and
sustained
which have
placement
price signs
in motor vehicle
retail dealers
Police
Slome
fuel. G. L. c.
Fitchburg,
295C.
Chief of
v. Director
Merit Oil Co.
In the Slome price sign respect scope statute. with to the of our decision constitutionally holding the statute Before regu- purport permissible, that it did not we observed aspects gasoline seller’s business which of a late those competition in- with other businesses were conducted products. selling cluding “This statute nonfuel those price designating only signs of motor deals filling way proprietor of a in no limits the fuel. ... It any portion upon displaying, using of station may premises, signs deem con- as he of such dimensions may lettering consider size as he of such venient, with including every advertising advantageous, article, majority opinion. 3 of the See footnote *21 425 361 401 Mass. Corp. v. General. Mobil Oil with the instance, fuel, that he has for and in sale; every motor single fuel, may he forth exception of upon set added). various articles” signs prices (emphasis the of the Mass, price sign 304 is me that the at 189. It clear to includ statute, decisions upheld validity sign its sellers as a ing separate out of retail fuel singling size and group, only in so far as the regulated statutes In placement respect, this there price signs. no en denial of because protection persons equal “[a]ll in in the retail are alike gaged sale of motor fuel affected Mass, the uniform 304 at enforcement of the statute.” 192. In the present however, the record demon case, strates in the products, sale of nonfuel sellers and others are and form one similarly situated class. so, That statute members being present treats of the same class is Since there no rational unequally. justification for the treatment, it should not be unequal A sustained. New decision defend Jersey upon which the (US) his brief, United Stations N. J. ant relies v. Getty Oil Co. 102 459, N. J. is Super. not inconsistent with this reasoning, because of a substantial difference between the statute there considered and the statute presently before statute, the court. New Jersey 56:6-2 (f), the use prohibited promotional connection with the sale of fuel court only, and the there correctly, my view, relied upon gasoline price sign cases holding statute to be constitutional. The defendant directs the court’s attention those decisions which state that when legislative authority exerted within a it need proper area, every not embrace Mulligan conceivable within field. v. problem See Hilton, 305 Mass. v. Leis, Commonwealth 5, 13; 355 Labor Relations Bd. v. & 189, 198; National Jones Laughlin Superior Steel Corp. 46; Hughes 1, 301 U. S. Court County, Cal. Contra Costa 460, U. S. for I I statement, 468-469. with that also agree While believe that each taken must be step Legislature consonant constitutional guaranties pro- equal tection and that rational must exist each such support Corp. Attorney step. Missouri, International Harvester Am. v. Co. of 199, U. S. Traux v. Raich, cases cited. Sproles U. S. 286 U. Binford, S. Laughlin National Labor Relations Steel Bd. v. Jones & Corp. 301 I above, U. S. 46. As observed what- have *22 may thought ever evils be on and to be attendant upon they promote contests are attendant them whether gasoline they the sale of or food and attract cus- whether gasoline buy tomers to a or to a store station to tires tire purpose. question, for the same the statute does Without say apply equally competing not businesses. To that to unequal permissible is an treatment because it step only partially remedial initial one intended to be principle injustice do would an to the constitutional involved. this have sus-
Furthermore, court’s decisions which legislation affecting tained certain businesses as distinct distinguishable present In classes are from the case. Transp. Commonwealth v. Boston & Maine Co. 282 Mass. licensing rejected challenge require- 345, 351, we applicable only operating sight-seeing ment vehicles can and from Boston. found that such vehicles peculiarly around Boston’s affect the flow of traffic peculiar In I no effect historic sites. this have found case, public safety upon sellers’ that have games. in contrast to nonfuel sellers’ Opinion In we Justices, 827, 830, 358 Mass. monitoring proscription stated that the of certain devices applied comprising manufacturing could be to a class places they establishments and factories “as are the likely and motion most be where time studies would used.” The record before the court does not establish singled namely statute, the class out likely” pro- sellers, fuel is the one “most to use vehicle games. contrary, singles On the the statute motional out proscription only many for users total a fraction promotional games. Corp. In Pioneer Banks, Credit Commissioner of upheld 214, 221-224, this court exclusion Corp. v. Boston & Maine Weiner regulation subjected to of certain banks from the class respect charges motor vehicle retail finance plaintiff, sales contracts. The a small loans instalment company, subject sought to the a declara- statute and exemption equal tion that the of certain banks denied it protection of the held laws. We that the statute was valid. recognition Essential to our decision was the banks extensively regulated by were both Federal State regulation scrutinizing laws that this included financing of motor sales vehicle instalment contracts. Accordingly, opinion that, we were since there was substantially equal legislative treatment of similar busi- equal protection. nesses, there was no denial In the present embody case, the does statute such constitu- tionally equal treatment of I are, what have determined in fact, similar businesses. *23 vs. Boston trustee, Weiner,
William and Maine & another. Corporation January 5, 1972. 15, 1972. Suffolk. March C.J., Tauro, Cutter, Present: Reardon, Quirico, Braucher, JJ. & Railroad, Deed, Property conveyed, property. Service. Railroad Words, “Abandonment.” A railroad did under vice, the railroad nevertheless continued to maintain such service was portation Authority. viaduct was not granted property where, although the Interstate Commerce Commission reserving equipment covenants fact that a located an conveyance. financial to itself located application by reserved not abandon railroad in a deed sufficient agreement the on, [429-430] [430] right and to right conveying it passenger the railroad to discontinue conveying to maintain with the Massachusetts show that use, operate certain land repair, service within certain of its trains the viaduct replace use over, on which a viaduct structures passenger property Bay meaning remove conveyed excepted Trans- ser- but Superior January filed on Court equity
Bill 16,1967.