formerly concurring, now dissents.
Upon a reconsideration of this matter, subsequent to the filing of a petition for rehearing, I have changed my mind and at this time I would not only grant the petition for rehearing but now dissent from the majority opinion.
As already noted, the defendants in error upon trial in the county court in and for the county of El Paso admitted their violation of those municipal ordinances of the City of Colorado Springs with which we are here concerned. Their defense was that the ordinances in question are unconstitutional in that each is claimed to be an unreasonable and arbitrary exercise of the police power.
Upon trial the defendants in error offered evidence, and much of it, which indeed did support their thesis *292that the ordinances in question did not promote public health, safety and welfare, and that in fact the ordinances were actually detrimental insofar as the public safety was concerned.
At this juncture in the proceedings before the trial court, the plaintiff in error then offered its evidence in support of its contention that the ordinances in question did in fact promote the public health, safety and welfare, and were therefore a reasonable exercise of its police powers. This evidence came in the main from the chief of the fire department for Colorado Springs. The gist of his testimony, as I understand it, runs somewhat as follows:
1. the bigger a gasoline transport tanker truck the less its maneuverability in traffic;
2. because of this lessened maneuverability, particularly as relates to the getting in and out of a retail filling station outlet, the greater the possibility of a bigger tanker truck, as contrasted with a smaller and more maneuverable truck, being involved in a vehicular collision with the resultant overturning of the bigger tanker truck;
3. with the more frequent overturning, then, of the bigger gasoline transport tanker truck the greater the risk of an explosion and fire; and
4. the overturning and rupturing of the bigger tanker truck would result in a bigger and harder to handle explosion and fire than would be the case if the gasoline had been transported in a smaller and more maneuverable gasoline transport tanker truck, even though the smaller truck might be involved in a collision.
It was on this general state of the record, then, with conflicting testimony as to the “reasonableness” of the ordinances in question, that the trial court in effect “overruled” the city council of the City of Colorado Springs and decreed that the ordinances under consideration were unconstitutional in that they constituted an unreasonable and arbitrary exercise of the police *293power. In so doing, in my view the trial court committed error.
This is not a situation, as I see it at least, where we are searching the record to determine whether there is any evidence to support the finding of the trial court. Rather, our only task is to ascertain if there is any rational factual basis for the legislation under attack. It is only where the legislation lacks any and all reasonable basis that it may with propriety be labeled by the courts as arbitrary. And, furthermore, if the issue of “reasonableness” be one which is “fairly debatable,” courts in such circumstance are not at liberty to substitute their judgment on the matter for that of the legislative body.
In my opinion there was evidence adduced upon the hearing of this matter which does demonstrate that the ordinances in question are grounded upon a rational factual basis and therefore neither ordinance in my view of the matter may with propriety be tagged as either unreasonable or arbitrary. In this regard, I refer, of course, to the testimony of the fire chief of Colorado Springs. In my view the fire chief’s testimony does show the “reasonableness” of the ordinances here under attack. The fire chief in some detail outlined the reasons why these ordinances, in his opinion, would promote public safety by reducing the possibility of disastrous explosions and fires stemming from the overturning and rupturing of “big” gasoline tanker trucks.
At the very least, it would appear to me that this issue is a debatable one, one upon which reasonable minds might conceivably differ. And in such instance, as already noted, the court may not “second guess” the legislative body and substitute its judgment for that of the latter body.
Standard Oil Company v. City of Marysville, 279 U.S. 582, 49 S. Ct. 430, 73 L. Ed. 856 presents a factual situation deemed somewhat analogous to the present one. There, the city of Marysville, in Kansas, enacted an *294ordinance which, with certain exceptions, required that all tanks used for the storage of petroleum products be buried at least three feet underground. Certain dealers in petroleum products promptly brought an action in the United States District Court for Kansas to enjoin the enforcement of this ordinance. The matter was then referred to a master.
Upon hearing before the master, voluminous evidence was taken, much of it described as “conflicting, speculative and theoretical” concerning the relative safety of storing petroleum products above, as opposed to below, the surface of the earth. The master thereafter made “elaborate findings” in which he came to the conclusion that it was safer to store gasoline above, rather than below, the ground. From this conclusion the master then went on to hold that the ordinance was unreasonable and arbitrary and therefore not a valid exercise of the police power. The United States District Court approved and adopted as its own the conclusion thus reached by its master.
The United- States Circuit Court of Appeals for the Eighth Circuit reversed the judgment of the United States District Court for Kansas, City of Marysville v. Standard Oil Co., 27 F.2d 478. In affirming this action of the Circuit Court, the United States Supreme Court, speaking through Mr. Justice Stone, after taking judicial notice that gasoline stored in large quantities is a “dangerously” inflammable substance, went on to declare as follows:
“We need not labor the point, long settled, that where legislative action is within the scope of the police power, fairly debatable questions as to its reasonableness, wisdom and propriety are not for the determination of courts, but for that of the legislative body on which rests the duty and responsibility of decision.”
* * *
“We may not test in the balances of judicial review the weight and sufficiency of the facts to sustain the *295conclusion of the legislative body, nor may we set aside the ordinance because compliance with it is burdensome.” (Emphasis added.)
Similarly, in Independent Dairymen’s Association v. City and County of Denver, 142 F.2d 940, an ordinance regulating the sale and distribution of milk in Denver was attacked on the ground that it was unreasonable and therefore arbitrary. In upholding that ordinance, the United States Circuit Court of Appeals for the Tenth Circuit, stated as follows:
“Our sole inquiry is whether a rational factual basis for the legislative requirement is so wanting as to make it unreasonable and purely arbitrary. We may not test in the balances of judicial review the weight and sufficiency of the facts to sustain the conclusion of the legislative body. We may only inquire whether it so lacks any reasonable basis as to be arbitrary. Debatable questions as to reasonableness are not for the courts, but for the legislature, which is entitled to form its own judgment. We may not set aside the ordinance because compliance with it is burdensome.” (Emphasis added.)
In my appraisal of the situation, the ordinances under attack are a reasonable exercise of the police power. And in any event, the issue is at the very least a “debatable question.” Certainly the net effect of the testimony of the Colorado Springs fire chief is that the ordinances are reasonable and do tend to promote public safety. This being the state of the record, the fact that there was other evidence to the contrary is under the circumstances of no legal significance. There being evidence, then, which in my opinion tends to show the reasonableness of the ordinances with which we are concerned, it is not within the province of the trial court, or this court, to substitute its judgment on the matter for that of the city council.
Mr. Justice Kelley has authorized me to state that *296he, too, would grant the petition for rehearing and that he now joins in the foregoing dissent.