(dissenting, with whom Tauro, C.J., joins) I dissent from the majority opinion. In my view the statute is unconstitutional because the plaintiffs are being deprived of the equal protection of the laws. The statute applies to motor vehicle fuel sellers only and prohibits them from using the contests in connection with the sale of any products including those products sold by competitors who are not under a similar prohibition. The statute, with immaterial language deleted, is clear and unambiguous, viz.: “No dealer or seller of motor vehicle fuel . . . [shall engage in or operate promotional games] in connection with the sale of goods or services.” A careful examination of the record in the case and the controlling authorities leads me to the conclusion that the statute does contain an irrational classification and one that cannot be sustained under the equal protection clauses of the State and Federal Constitutions. Fourteenth Amendment to the United States Constitution. Arts. 6, 7, of the Declaration of Rights.
The plaintiffs have an onerous burden of proof in their attempt to establish the unconstitutionality of the statute. All rational presumptions are made in favor of the validity of every legislative enactment. Commonwealth v. Finnigan, 326 Mass. 378, 379. Corollary rules which emphasize this principle have been fully set out in the main and concurring opinions of this court in the recent case of Pinnick v. Cleary, 360 Mass. 1, 14, 28, 32-33.
The concurring opinion of Chief Justice Tauro in the Pinnick case appropriately states, in substance, at p. 33, that the task of proving unconstitutionality of a statute is virtually insuperable in the absence of a factual foundation established in the record, by an evidentiary hearing or other means. I have concluded that the plaintiffs *420in the case before us have succeeded in establishing the constitutional invalidity of the statute because their arguments are premised, not merely upon speculation and guesswork but upon a comprehensive statement of agreed facts which incorporates a number of meaningful and relevant documents.
In my opinion the majority of the court have reached an erroneous decision as viewed in the perspective of the statement of agreed facts. I do not suggest that this court’s consideration of the constitutional issues should be so carefully circumscribed as to preclude any consideration of factors which the court concludes are within the realm of common knowledge. However, the court’s reasoning should reflect a reasonable deference to the agreed facts, particularly in view of the fact that the Attorney General has participated as a party to the agreed statement. Cf. State’s Attorney for Charles County v. Triplett, 255 Md. 270, wherein the court declined to consider the equal protection issue in the absence of an evidentiary record.
The inconsistency between the majority’s reasoning and the statement of agreed facts is especially shown in the majority’s statement, with regard to the equal protection issue, that “[t]he Legislature could reasonably have thought, in 1968, that some or all of these features of the typical gasoline station made the problem of promotional games more pressing with respect to them than with respect to other retail merchants.” A fair reading of the statement of agreed facts and attached exhibits does not support this speculation. In fact, a contrary inference fairly arises from the factual statement.
The discussion below of the equal protection issue has been placed, as I conclude it should be, in the framework of the relevant facts as presented to us by the parties.
The record demonstrates that Mobil and Kulper sell many and diverse nonfuel products and that the sale of such products constitutes a substantial portion of their business. The record also shows that a substantial number of nonfuel sellers compete with Mobil and Kulper in *421the sale of nonfuel products and services. These competing sellers include, among others, automotive stores, automobile dealerships, auto body shops, tire stores, hardware stores and department stores. The competing products and services include, among others, the sale of tires, batteries, cigarettes and soft drinks, the changing of tires, automobile lubrication, and the selling, installing and repairing of sundry motor vehicle parts and accessories.
Mobil and Kulper, prior to the enactment of the statute, engaged in the use of promotional games and contests. The fact is also well documented in the record that those in competition with Mobil and Kulper likewise engaged in similar games and contests to promote the competing products. The statute provides that sellers and dealers of motor vehicle fuel shall not utilize such games “in connection with the sale of goods or services.” By its terms, it does not prohibit those in competition with Mobil and Kulper from using the games and contests to promote the sale of competing products and services.
The general principles of law governing the constitutional challenge of a State statute as a denial of equal protection of the laws are well established. “While a State has broad power when it comes to making classifications ... it may not draw a line which constitutes an invidious discrimination against a particular class. . . . Though the test has been variously stated, the end result is whether the line drawn is a rational one.” Levy v. Louisiana, 391 U. S. 68, 71. Likewise, this court has stated that “statutes in regard to the transaction of business must operate equally upon all citizens who desire to engage in the business, and . . . there shall be no arbitrary discrimination between different classes of citizens.” Commonwealth v. Hana, 195 Mass. 262, 266. Hall-Omar Baking Co. v. Commissioner of Labor & Indus. 344 Mass. 695, 701. To be sure, however, the constitution does not require that in every instance a statute must necessarily apply equally to all persons. “The Constitution does not require things which are different in fact... to be treated *422in law as though they were the same.” Tigner v. Texas, 310 U. S. 141, 147.
Having in mind these principles, the test to be applied here is whether there is any rational basis for the Legislature’s prohibition of promotional games of chance, but only when operated by individuals whose business includes selling motor vehicle fuel. Stated differently, is there rational justification for concluding that the sale of nonfuel products by those who sell motor vehicle fuel is any different from the sale of those same products by those whose business does not include the sale of motor vehicle fuel? I believe that no such justification exists either in fact or in reason.
My reading of the statute convinces me that it was primarily designed to prevent the actual and potential abuses found to exist in the use of promotional games and contests when conducted in connection with the sale of products and services. The evil, as determined by the Legislature, is promotional selling itself where the promotion consists of operating games and contests. The prohibition contained in the staute, however, is addressed to motor vehicle fuel sellers only and applies to the sale of all products sold by them. Obviously, the classification is not one based on the type of product since it applies to all products sold by motor vehicle fuel sellers. The distinction seems to be solely one of person: he who sells motor vehicle fuel as a large or small part of his business activity has become so specially affected that his promotion of nonfuel products on the same premises is prohibited, whereas those in competition with him in the sale of nonfuel products who sell no motor vehicle fuel are exempted from the prohibition.
The record establishes no reasonable justification for the distinction made in the statute. No evils found to exist in promotional selling were unique to those whose business activity included the sale of motor vehicle fuel. In fact, a similar rule for the proscription of promotional games promulgated by the Federal Trade Commission was a response to the actual and potential abuses found *423to exist in the retail food industry as well as the gasoline industry. 16 C. F. R. (1971) § 419.1. Statement of Basis and Purpose, Trade Regulation Rule on Games of Chance in the Food Retailing and Gasoline Industries, 34 Fed. Reg. 13302 (1969). Furthermore, the record before us does not indicate that the use of such games in the fuel industry was particularly widespread as compared with other industries. On the contrary, the record demonstrates that such games and contests were used and advertised in connection with the sale of countless products other than gasoline and by a broad range of merchants who compete with gasoline sellers. Other evils which might accompany the use of promotional games, such as coercion by wholesalers on their franchisees to participate in the games and increases in the retail prices of products, are not borne out by the record. Even if they were, however, I believe that such evils would not be unique to motor vehicle fuel sellers but rather would exist as to all merchants of every class and description who use promotional games or contests.
In Hall-Omar Baking Co. v. Commissioner of Labor & Indus. 344 Mass. 695, we were faced with a type of restrictive classification similar to that which § 6C has imposed on gasoline sellers. There, the plaintiff bakery seller challenged the law relating to hawkers and peddlers, G. L. c. 101, which required driver-salesmen of bakery products, among others, to obtain peddler’s liceneses, but exempted from the license requirements driver-salesmen of dairy products. The statute, intended to regulate potential abuses which existed in the peddling field, was addressed to a restricted class of persons rather than against certain peddling practices. In declaring the statute unconstitutional, this court said, “Milk is a subject of special statutory concern.... But that does not justify unequal application of laws regulating itinerant selling. Section 15 gives milk companies full exemption from the requirement of a hawker’s and pedler’s license. It is thus a regulation of itinerant selling which makes an arbitrary distinction between businesses which, so far as their *424attributes relevant to such classification are concerned, are alike. We perceive no basis for the distinction ‘reasonably related to the purposes which the regulations seek to accomplish.’ ” 344 Mass. at 707. The above language is equally applicable to the present case. The record convinces me that gasoline sellers in their capacity as sellers of nonfuel products are no different from other sellers of nonfuel products and that the actual or potential evils attendant upon the use of promotional games by either group are the same. That being the case, gasoline sellers may not be treated differently from others similarly situated. See State’s Attorney for Charles County v. Triplett, 255 Md. 270.1
The defendant, in seeking to sustain the constitutionality of the statute, relies on the decisions of this court which have sustained legislation regulating the size and placement of price signs by retail dealers in motor vehicle fuel. G. L. c. 94, § 295C. Slome v. Chief of Police of Fitchburg, 304 Mass. 187. Merit Oil Co. v. Director of the Div. on the Necessaries of Life, 319 Mass. 301. While those decisions do regard retail dealers in motor fuel as a single class for some legislative purposes, a careful examination of them convinces me that they do not control the facts of the present case.
In the Slome case, we specifically noted the narrow scope of our decision with respect to the price sign statute. Before holding that the statute was constitutionally permissible, we observed that it did not purport to regulate those aspects of a gasoline seller’s business which were conducted in competition with other businesses including those selling nonfuel products. “This statute deals only with signs designating the price of motor fuel. ... It 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 *425fuel, 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” (emphasis added). 304 Mass, at 189. It is clear to me that the price sign decisions upheld the validity of the sign statute, including its singling out of retail fuel sellers as a separate group, only in so far as the statutes regulated the size and placement of the price signs. In this respect, there was no denial of equal protection because “[a]ll persons engaged in the retail sale of motor fuel are affected alike in the uniform enforcement of the statute.” 304 Mass, at 192. In the present case, however, the record demonstrates that in the sale of nonfuel products, gasoline sellers and others are similarly situated and form one class. That being so, the present statute treats members of the same class unequally. Since there is no rational justification for the unequal treatment, it should not be sustained. A New Jersey decision upon which the defendant relies in his brief, United Stations of N. J. (US) v. Getty Oil Co. 102 N. J. Super. 459, is not inconsistent with this reasoning, because of a substantial difference between the statute there considered and the statute presently before the court. The New Jersey statute, 56:6-2 (f), prohibited the use of promotional games in connection with the sale of motor fuel only, and the court there correctly, in my view, relied upon the gasoline price sign cases in holding the statute to be constitutional.
The defendant directs the court’s attention to those decisions which state that when legislative authority is exerted within a proper area, it need not embrace every conceivable problem within that field. See Mulligan v. Hilton, 305 Mass. 5, 13; Commonwealth v. Leis, 355 Mass. 189, 198; National Labor Relations Bd. v. Jones & Laughlin Steel Corp. 301 U. S. 1, 46; Hughes v. Superior Court of Cal. for Contra Costa County, 339 U. S. 460, 468-469. While I agree with that statement, I also believe that each step taken by the Legislature must be consonant with constitutional guaranties of equal protection and that rational support must exist for each such *426step. International Harvester Co. of Am. v. Missouri, 234 U. S. 199, 215, and cases cited. Traux v. Raich, 239 U. S. 33, 43. Sproles v. Binford, 286 U. S. 374, 396. National Labor Relations Bd. v. Jones & Laughlin Steel Corp. 301 U. S. 1, 46. As I have observed above, whatever evils may be thought to be attendant on games and contests are attendant upon them whether they promote the sale of gasoline or food and whether they attract customers to a gasoline station to buy tires or to a tire store for the same purpose. Without question, the statute does not apply equally to competing businesses. To say that such unequal treatment is permissible because it is an initial step or one intended to be only partially remedial would do an injustice to the constitutional principle involved.
Furthermore, this court’s decisions which have sustained legislation affecting certain businesses as distinct classes are distinguishable from the present case. In Commonwealth v. Boston & Maine Transp. Co. 282 Mass. 345, 351, we rejected a challenge to a licensing requirement applicable only to sight-seeing vehicles operating in and from Boston. We found that such vehicles can peculiarly affect the flow of traffic in and around Boston’s historic sites. In this case, I have found no peculiar effect that gasoline sellers’ games have upon the public safety in contrast to nonfuel sellers’ games.
In Opinion of the Justices, 358 Mass. 827, 830, we stated that the proscription of certain monitoring devices could be applied to a class comprising manufacturing establishments and factories “as they are the places where time and motion studies would most likely be used.” The record before the court does not establish that the class singled out by the statute, namely motor vehicle fuel sellers, is the one “most likely” to use promotional games. On the contrary, the statute singles out for total proscription only a fraction of the many users of promotional games.
In Pioneer Credit Corp. v. Commissioner of Banks, 349 Mass. 214, 221-224, this court upheld the exclusion *427of certain banks from the class subjected to regulation with respect to finance charges for motor vehicle retail instalment sales contracts. The plaintiff, a small loans company, was subject to the statute and sought a declaration that the exemption of certain banks denied it equal protection of the laws. We held that the statute was valid. Essential to our decision was the recognition that banks were extensively regulated by both State and Federal laws and that this regulation included scrutinizing the financing of motor vehicle instalment sales contracts. Accordingly, we were of the opinion that, since there was substantially equal legislative treatment of similar businesses, there was no denial of equal protection. In the present case, the statute does not embody such constitutionally equal treatment of what I have determined are, in fact, similar businesses.
See footnote 3 of the majority opinion.