(concurring). This appeal involves a consideration of section B36-101.Q of the Administrative Code of the City of New York which prescribes the size and contents of signs that must be placed on the gasoline dispensing pumps of a retailer of gasoline and which, in subdivision (b) thereof, prohibits the placing of a sign stating the price of gasoline on any other portion of the premises upon which such gasoline is offered for sale. No other commodities sold or offered for sale by such retailer are affected by these Code provisions.
The defendant has been convicted of a violation of said subdivision (b) and on this appeal he attacks the constitutionality thereof.
These provisions were enacted under the general authority conferred upon the municipality in such matters and not by virtue of any specific authority. They are not declarative of the legislative policy of the State The inquiry in this instance is whether subdivision (b) constitutes a reasonable, capricious or arbitrary regulation.
It is sought to justify this legislation on the theory that it was designed to prevent fraud upon the public. It is claimed that some retailers of gasohne employ signs upon which numerals and words are so arranged as to convey the impression to the passing motorist that he can purchase gasoline at less than the prevailing prices; furthermore, that sometimes a sign in no way misleading on its face may be so placed as to lead prospective customers to believe that it relates to gasolines other than the gasoline to which it actually refers. As a result of such misleading signs motorists are often induced to enter upon a gasoline station, whereupon after closer inspection of the signs or possible inquiry, they find that they cannot obtain the advantageous purchase they expected to make.
These sharp practices indulged in by some retailers are indeed reprehensible. They may even be illegal under the provisions of the Penal Law prohibiting misleading and false advertising. They are certainly outlawed by section B36-102.0 of the Administrative Code which makes it unlawful for any person to sell or offer for sale gasoline at retail in any manner so as to deceive or tend to deceive the purchaser as to the price, nature, quality or identity thereof.
In my opinion, however, such actions by some retailers are not sufficient justification for the prohibitory provisions of subdivision (b) affecting all retailers, the honest as well as the dishonest ones. The right to advertise the price of one’s wares is incidental to one’s right to engage in business and has the sanction of age-long custom among merchants. To deprive defendant of this right in the use of • his property for the reasons advanced is arbitrary and unreasonable.
*36A truly regulatory statute prescribing that all gasoline price signs anywhere on a gasoline station shall be in lettering or numerals of uniform size and even reasonably limiting the size and reasonably restricting the location of such signs might be deemed a reasonable method of controlling the evil complained of. The means adopted in the challenged statute to secure the desired ends are unreasonable.
Pursuant to section B36-101.0 of the Code the size of the sign which must be placed on the dispensing pump or device is limited to seven inches in height and eight inches in width as a minimum and twelve inches in height and twelve inches in width as a maximum. On this sign must clearly and legibly appear in numbers of uniform size the selling price per gallon of the gasoline offered for sale together with the name, trade name, brand, mark or symbol, and grade or quality classification, if any, of such gasoline. In addition, there must also be stated on such sign, separately from the selling price, the amount of the governmental tax to be collected. (Subd. a.) It is evident that the height of the numerals expressing the selling price of the gasoline will necessarily be very small in proportion to the height of the sign itself, so small in fact that one may well doubt that it can be seen at all by the passing motorist. The practical effect is that a prospective purchaser is compelled to enter the gasoline station to ascertain the selling price and there make his choice after reading the sign. In this respect he is put to the same inconvenience as the person who is attracted to a gasoline station by a misleading sign.
It may well be argued with some force that the effect of the provisions regarding the size and contents of the signs on the pumps and the absolute prohibition against placing signs elsewhere on the gasoline station amounts to a virtual prohibition of all sign advertising because of the ineffectiveness of the prescribed pump signs as a medium of announcing prices to the riding public. But, surely, the prohibitory provisions of subdivision (b), when considered in the light of the regulations regarding the pump signs, cannot be sustained.
The practical result of these Code restrictions upon the display of price signs is the stifling of effective competition. This tends to open the way for other abuses which affect the consuming public who have an interest in the preservation of the principle of active competition.
Similar statutes have been declared unconstitutional in the States of New Jersey and Connecticut. (See Regal Oil Company v. State, 123 N. J. Law, 456; 10 A. [2d] 495, and State of Connecticut v. Miller, not officially reported at this time, decided by the Supreme Court of Connecticut on February 23, 1940.
*37In the Massachusetts case of Slome v. Godley (23 N. E. [2d] 133) a contrary result was reached. The decision in that case may conceivably have been influenced by the fact that the whole of the sign, maximum size eight by ten inches, according to the opinion, could be utilized in designating the price of the gasoline and that it, therefore, had advertising value sufficient to inform passing motorists of the seller’s price. In this respect the Massachusetts State statute differs from our Administrative Code.
I concur in declaring subdivision (b) of section B36-101.0 of the Administrative Code unconstitutional.