(dissenting). I am in accord with the thought that the sale of gasoline can and should be regulated by the Legislature in the exercise of police power because of its dangerous potentialities.
The difficulty as I see it, however, is created in the instant case because the challenged statute in effect does more than regulate the sale of the commodity; it completely prohibits the suggested method of dispensing it.
“Broad as it is, the police power is not without its limitations. Its. exertion must be directed to a legitimate end, i. e., the protection of a basic interest of society rather than the mere advantage of particular individuals * * * And it is requisite that the means employed in its exercise have a rational relation to that end, and be altogether free from arbitrariness. The restraints and regulations imposed for the general good and welfare must needs have the virtue of reasonableness. There cannot be in the name of police regulation, an unreasonable and oppressive curtailment of personal or property rights. ,A measure that goes fairly beyond the public need designed to be served does not take the category of a valid police regulation.” N. J. Good Humor, Inc., v. Bradley Beach, 124 N. J. L. 162 (E. & A. 1940).
Public control is to be had only in the furtherance of public interest and, if the record indicates private interests are being *198served under the cloak of general public good, the utilization of broad police power should not be tolerated. The spirit of the common law did not intend' the use of police power in restraint of lawful trade unless there was some compelling public reason justifying it. Our court of last resort, in N. J. Good Humor, Inc., v. Bradley Beach, supra, said:
“At all events, the police power cannot be lawfully exerted in this direction unless from pressure of public necessity- — where the common good and general welfare imperatively demand it. And this is manifestly not the case here. The business banned by this ordinance is not a nuisance per se; nor was the enactment designed to outlaw a nuisance in fact. The proscribed business is wholly lawful in character. * * *
“The power to ‘regulate’ is ordinarily confined to such reasonable restraints upon the trade or business made the subject thereof as may be demanded by the public interest. It will not usually be construed as including the absolute prohibition of a legitimate business that may he pursued as of common right.”
Our own court as presently constituted embraced this doctrine in Lakewood Exp. Service, Inc., v. Bd. of Public Utility Com’rs., et al., 1 N. J. 45 (1948).
The law seems clear and I conceive no difficulty in its application to the statute presently under consideration.
The majority opinion lays great stress upon an eight-year-old article from the Journal of Industrial and Engineering Chemistry to the effect that flowing gasoline in pipes generates electrical charges which are sometimes capable of producing a spark sufficient to ignite a combustible mixture of gasoline vapor and air and that the nozzle of the hose should be held in contact with the metal tank or receptacle which is being filled with gasoline.
It loses sight, however, of the testimony of the best qualified and the only expert witness who appeared at the hearing. Charles EL Bunn, an engineer with the Standard Oil Development Company, having worked on petroleum hazards as an engineer for thirty years, specializing in fire protection, and being a member of two committees, one the Central Committee on Eire Protection of the American Petroleum Institute and the other the Inflammable Liquids Committee of *199the National Fire Protection Association, testified that the self-serving stations were in three categories: the first, not here involved, the most hazardous, with no attendants, operated by a coin machine; the second, where there is an attendant present but not in a supervisory capacity; and the third, the kind presently under consideration, operated by the appellants, “where you do have a fair degree of supervision and where there are some attendants.” He said: “It is perhaps unfair to legislate self-service entirely out, because in California, where most of these self-service stations have sprung itp, they have not had a bad fire record, so far as I know; up to date there has been no serious fire or accident among those stations.” Again he said: “I don’t think we have the right to legislate out that third class until they have had a chance to operate.”
The self-serving feature banned by the statute in question has been adopted in many branches of retail trade with salu-. tary results in cutting labor costs and in distributing goods and commodities to the consuming public at substantial savings. Super-markets, cafeterias and automatic vending machines are familiar examples of the modern merchandizing trend. Indeed, our progress toward a steadily higher standard of living has been derived from the ingenuity and inventiveness of those who have devised cheaper and more efficient ways of distribution of goods and commodities into the hands of the ultimate consumers. Any blanket prohibition of a new way of transacting lawful business should be carefully scrutinized in the light of the public good to be served.
The whole theory upon which the statute is sustained is the necessity for protection against fire hazards implicit in the handling of gasoline. The record, however, offers nothing excepting theory in support of this argument. Admittedly, during the months the appellants’ self-serving filling station was in operation there were no mishaps. In California the most hazardous, according to the expert, coin-operated self-serving pumps, have been used for several years with no fire record. The large number of supervised self-serving stations *200that have grown up in the Ear West indicates the encountering of no accidental difficulties or conflagrations.
It might be well, while considering the record, to heed our utterance in Washington National Ins. Co. v. Board of Review of N. J. Unemp. Comp. Comm., et al., 1 N. J. 545 (1949) :
“And care must be exercised that the efficacy of- these constitutional guaranties shall not be whittled away by indulging in unwarranted presumptions of a factual basis for the legislation. In Gulf, C. & S. F. Ry. Co. v. Ellis, supra, Mr. Justice Brewer said: ‘While good faith and a knowledge of existing conditions on the part of a legislature are to be presumed, yet to carry that presumption to the extent of always holding that there must be some undisclosed and unknown reason for subjecting certain' individuals or corporations to hostile and discriminating legislation is to make the protecting clauses of the fourteenth amendment a mere rope of sand, in no manner restraining state action.’ ”
The most ardent proponents of the statute produced no .records or statistics confirming the much heralded anticipated perils. They speculated, rather, on what might occur if persons smoke nearby while a tank is being filled or attempt to operate the pumps while intoxicated. In my opinion, it is rather meager and flimsy testimony on which to outlaw a method which has apparently gained widespread public approval in other merchandising fields and, when permitted in the gasoline retail business, has, without harm or injury, resulted in substantial savings to the consuming public.
It hardly seems reasonable to permit a man to operate an automobile, capable of a speed of one hundred miles an hour, on the congested highways with confidence in his obeying the speed law and avoiding accidents and at the same time adjudge him incompetent to fill his gasoline tank which he uses for that purpose. True, the driver is examined and licensed, but if this be deemed to be a necessary safeguard, the operation of the self-service gasoline pump station could likewise be limited to the licensed drivers, who in any event would probably be the chief, if not the only, users of them.
The consuming public, while not named in the legal pleadings, is vitally affected by the end result and must constantly *201be given some consideration in the disposition of the present litigation.
Public policy dictates the interest of the general public is-, not to be eclipsed or overshadowed by private concern under-any guise, whatever it might be. The economic advantages, and benefits derived by the people should not be forfeited by the intrusion of the police power unless the record is clear- and immutable as to the necessity for it.
No effort has been made by the Legislature to reasonably regulate the mode or manner of. dispensing gasoline but the-act is aimed specifically at the method of sale employed by the appellants, with the apparent vowed intent to prevent it. in tolo. Such, at least, is the practical result of its enforcement. Their business is arbitrarily circumscribed by a complete ban, while safety could be assured by adequate anct appropriate regulations.
As I read the record, the legislative restrictions are not. reasonably related to the public health and safety but are-arbitrary and oppressive and not within the domain of police powers and constitute an invasion of the right of private-property in contravention of the Eederal and State Constitutions.
These, briefly, are my reasons to reverse the judgment below.
Justice Oliphant has authorized me to say that he joins, in this dissent.
For affirmance — Chief Justice Vanderbilt, and Justices-. Case, Heheb, Beeling and Ackerson — 5.
For reversal — Justices Oliphant and Wacheneeld — 2»