(dissenting). On August 10, 1939, the council of the city of New York adopted Local Law No. 141, which adds to the Administrative Code a new article as follows:
“ ARTICLE 7.
“ Retail Sales op Petroleum Products.
“ § B36-101.0. It shall be unlawful for any person, firm or corporation to sell or offer for sale at retail for use in internal combustion engines in motor vehicles any gasoline unless such seller shall post and keep continuously posted on the individual pump or other dispensing device from which such gasoline is sold or offered for sale a sign or placard not less than seven inches in height and eight inches in width nor larger than twelve inches in height and twelve inches in width and stating clearly and legibly in numbers of uniform size the selling price or prices per gallon of such gasoline so sold or offered for sale from such pump or other dispensing device together with the name, trade name, brand, mark or symbol, and grade or quality classification, if any, of such gasoline.
“ (a) The amount of governmental tax to be collected in connection with the sale of such gasoline shall be stated on such sign or placard and separately and apart from such selling price or prices.
“ (b) No sign or placard stating the price or prices of gasoline other than such signs or placards as hereinabove provided shall be posted or maintained on the premises on which said gasoline is sold or offered for sale.
“ § B36-102.0. It shall be unlawful for any person, firm or corporation 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, or to sell or offer for sale from any pump or dispensing device any gasoline other than that gasoline manufactured or distributed by the manufacturer or distributor marketing such gasoline under the name, trade name, brand, symbol or mark affixed to or contained on such pump or other *38dispensing device, or to substitute, mix or adulterate gasoline sold or offered for sale under a name, trade name, brand, symbol or mark.
“ § B36-103.0. Violation of any of the provisions of this article shall, upon conv'ction therefor, be punished by a fine of not more than two hundred fifty dollars or by imprisonment for not more than sixty days, or by both such fine and imprisonment.”
The defendant has been convicted of maintaining upon premises operated by him as a gasoline station signs in dimensions larger than prescribed in subdivision (b) of section B36-101.0 above set forth. Tins provision is challenged by defendant as in contravention of section 6 of article 1 of the Constitution of the State of New York as well as of the Fourteenth Amendment to the Constitution of the United States. In support of this appeal the defendant relies mainly upon the case of Regal Oil Co. v. State of New Jersey (123 N. J. Law, 456; 10 A. [2d] 495), decided December 5, 1939. Without setting forth the provisions of the New Jersey statute it may be said the court had before it in that case substantially the same question as that before the court in the instant case. In its opinion the New Jersey court stated that the non-conforming signs which were used in addition to the signs prescribed by the statute were for the purpose of attracting the purchasing power of the approaching and passing motorist. Upon the entire case the court concluded that the statute constituted an unlawful interference with the private business of the prosecutor and imposed unreasonable and unnecessary restrictions upon such business.
Another case brought to the attention of the court is that of State of Connecticut v. Miller (decided by the Supreme Court of Connecticut February 23, 1940). In that case the court had under consideration the constitutionality of a certain statute which required the displaying on each gasoline dispensing pump of a sign of limited dimensions showing the retail price per gallon, the combined State tax and Federal tax applicable thereto and the total cost thereof to the purchaser, in three separate sets of figures of prescribed dimensions, and prohibiting any other sale price signs at or within the vicinity of the premises where such products were offered for sale or sold at retail. The statute further provided that “ retail dealers shall not post or display signs showing the sale price of petroleum products other than motor fuels, which signs shall exceed the dimensions and specifications provided herein for motor fuel price signs.” The court held the prohibitory portions of the section unconstitutional on the ground that they constituted an unreasonable interference with the right to carry on a lawful business The court stated it was unable to see “ either from the provisions themselves or from the facts found, how they could have any appreciable effect in protecting the public from fraud.”
*39These cases, as it seems to me, amount to the substitution of the judgment of the court for that of the Legislature both as to the existence of the fraudulent practices and the reasonableness of the legislation designed to correct the evils sought to be remedied. As against the foregoing decisions we have the recent case of Slome v. Godley (— Mass. — ; 23 N. E. [2d] 133), decided by the Supreme Judicial Court of Massachusetts October 28, 1939. In this case the court had before it a similar statute which required every retail dealer of motor fuel to conspicuously mark his pumps or other dispensing equipment with the price of the motor fuel dispensed from the pump or from the dispensing equipment. The price signs so to be used were restricted in size and it was provided that no price signs of motor fuel so dispensed “ or signs relating to the price of such fuel shall be used or displayed on or about the premises where motor fuel is sold at retail other than the signs provided herein to be posted upon the pumps or dispensing equipment.” In its opinion the court pointed out that the statute deals only with signs designating the price of motor fuel and does not establish prices or impair the freedom of the owner to determine the selling prices of his goods ; and further that the statute “ in no way limits the proprietor of a filling station in using or displaying, upon any portion of the premises, signs of such dimensions as he may deem convenient, with lettering of such size as he may consider advantageous, advertising every article, including motor fuel, that he has for sale; and in every instance, with the single exception of motor fuel, he may set forth upon such signs the prices of the various articles.” The court further says (at p. 135): “ This is not a case where a dealer is prohibited from advertising the price of a commodity which he sells, but, on the contrary, is one where he is required to display the price upon the mechanical device through which the goods are delivered to the customer.” The position taken by the court in passing upon the constitutionality of the statute is that the legislative enactment should only be struck down when the legislative finding “ cannot be supported upon any rational basis of fact that can be reasonably conceived to sustain it.”
We thus have the decisions of the New Jersey and Connecticut courts above referred to entertaining one view on substantially the same question as against that of the Supreme Judicial Court of Massachusetts in the Slome case (supra).
In my view of the matter this is not a case in winch the court should substitute its judgment for that erf the Legislature either as to the existence of the fraud and deception sought to be remedied or the reasonableness of the statute enacted to prevent misleading the public.
*40Among the grounds urged in condemnation of the statute are the following:
(a) That it is unreasonable, capricious and arbitrary. This might be urged with more convincing effect it it were to be assumed that the legislative body did not have before it a situation involving fraudulent and misleading practices in the sale of motor fuel which it sought to remedy by the enactment of the legislation. What is really meant by this criticism is, I take it, that the statute is more drastic than necessary to meet the evils complained of. As to that I consider the judgment of the legislative body should not be disturbed by the court.
(b) The practice sought to be corrected may be reached under existing statutes thus designed to prevent misleading and false advertising as well as section B36-102.0, which makes it unlawful to sell or offer for sale gasoline at retail in a manner so as to deceive or tend to deceive the purchaser as to price, quality or identity thereof. As to this it may be said that the Legislature need not confine itself to a single enactment where it seeks to obtain a desired result. (See People v. Cannon, 139 N. Y. 32.)
(c) That the right to advertise is incidental to the right to engage in business, the deprivation of which is arbitrary and unreasonable. As to this it may be pointed out that under certain circumstances the use of billboards may be entirely prohibited. (See Cusack v. City of Chicago, 242 U. S. 526.)
(d) The means adopted in the challenged statute to secure the desired end are unreasonable. As to this it may be noted that our courts have repeatedly held that a municipality may in the exercise of its power enact legislation designed to protect the public against fraudulent and deceptive practices. (See People v. Perretta, 253 N. Y. 305; People v. Luhrs, 195 id. 377; People ex rel. Durham Realty Corp. v. La Fetra, 230 id. 429; People v. Beakes Dairy Co., 222 id. 416.)
(e) That the provisions in question and the contents of the sign amount to a virtual prohibition of all sign advertising. Tins has a bearing upon the question of the effect of the signs required to be attached to the dispensing pumps as a means of advertising. It does not seem unreasonable to assume that when the public know that the price of motor fuel may be found in one place, and only one, that such signs have an advertising effect. As a matter of fact by virtue of legislative enactment the public would know where to look for the price of motor fuel and would not suffer any inconvenience in taking the time and trouble necessary to obtain the desired information. In this case it may be noted that the size of the sign and of the letters are not the only factors involved in effective advertising.
*41(f) That the statute amounts to a stiffing of competition. As to this it would rather seem that all dispensers of motor fuel are merely placed upon an equal basis as to the advertising of the price thereof without any limitation whatsoever as to the character of the signs to be used in advertising the brand of motor fuel and in addition to the brand or brands, and the price of oil, grease, and other motor supplies and accessories. To my mind it would be more accurate to say that competitive methods are limited or restricted rather than that competition is stifled.
It is of course to be admitted that substantial arguments may be presented in opposition as well as in support of the challenged statute. As for myself I cannot say that the statute appears to me to be so unreasonable, capricious or arbitrary as to warrant holding it unconstitutional under the provisions of the Federal or State Constitutions. Accordingly, I vote to affirm the judgment.