Montana Attorney General Opinion 15-365

Opinion No. 365 Gasoline - Autofuei. Sale of - Sul- phUI' Conrent-Gas and Oil. HELD: The sale of autofuel, a pe- troleum product containing more than two-tenths of one per cent of sulphur, .is not illegal under the facts presented. October 19, 1933. We have your request for an opinion in which you state that under date of .luly 24, 1933, the Montana chapter of Rocky Mountain Oil and Gas As- sociation mailed to you a complaint against the sale of a petroleum product designated "a u tofuel" , whiCh is in fact gaSOline but which contains in excess of two-tenths of one per cent sulphur. You ha\'e made an investigation and have submitted the following state- ment of facts: 'The Independent Refining Com- pany, a corporation, owns and oper- ates a refinery near Laurel, Montana. In addition to refining gasoline, i. e. a product which meets up with the standards of quality and strength prescribed for gasoline hy Chapter 192, Laws of 1931, the company also produces a product which sells with- in the State of Montana under the name and designation 'autofuel'. From retail stations in the Cities of Billings and Bozeman, the Commis- sion, during the months of August and Septemher, obtained samples of the product being retailed as 'auto- fuel' and transmitted the same to the State Chemist at Bozeman, Montana, for unalysis and reports on tlie con- tents thereof. In due season the Com- mission recie\'ed reports from the State Chemist disclosing that the samples of 'autofue!' analyzed con- tained in excess of two-tenths of one per cent sulphur. In aU other re- spects the samples measured up to the requirements for gasoline as pre- scribe<l in Chapter 192, Laws of 1931. E'or YOUI' information we append herewith true, full and correct copies of our inspectors' reports on the tak- ing of sai<l samples and the reports of the State Chemist as to his nn- alysis. "Our investigation further disclosed that the Independent Refining Com- puny in im'oicing 'autofue!' to re- tailers designates the product on the invoice as 'autofue!' und there is printe<l or stamped on the invoice the legend that the product 'con- tains more than 2-10 of 1 per cent SUl- phur." Purther, the compuny maintuins a Signboard on the Billings-Laurel highway advertising its gasoline and its 'autofue!." The fact that 'autofuel' contains more than 2-10 of 1 per cent sulphur is shown on ,the ad\-ertise- ment (see Picture No. 1 attache<l). The company also does some news- pnpel' adYertising of its 'autofuei'. 252 OPINIONS OF THE AT'l'OHNEY GENERAL For your information we enclose a copy of one of their advertisements taken from the Billings Gazette of September 15, 1'933. We also en- close a shop window advertisement .for the company's products. (Picture < No. 4 attached). Hetail pumps in- spected show that the machines used for vending or dispensing 'autofue!' are marked in two places with the legend that the product contains more than 2-10 of 1 per cent sulphur. (See attached pictures Nos. 2 and 3). The sign on the side of the vending ma- chine (not discernible in the attached pictures) carries the following: 'AUTOFUEL Contains more than 2-10 of one per cent non-corrosive sulphur. HI-OCTANE' "At the time of our investigation 'autofue!' was retailing for two cents per gallon less than so-called stan- dard gasoline. We understand that the Independent Hefining Company pays to the state 5 cents on each gal- lon of 'antofue!' refined and sold by it in the' state, pursuant to the pro- visions of Chapter 19, Laws of 1927. as amended by Chapter 6, Laws of 1931." You request our opinion whether or not the sale or offering for sale of such product is unlawful under the provisions of Chapter 19, Laws of 1927, as amended. The product in question is a useful commodity. So far as the evIdence shows, its propulsive force is equal to that of the so-called standard gaso- lines. It is lower in price than the standard gasolines and offers to thou- sands of consumers a welcome relief from the high prices of gasoline per- sistently exacted in this state. The evidence before your Board shows nothing harmful in the product i-tself; it is not dangerous to public health or safety; all the tests made by the State Chemist show it to be non- corrosive. In no respect, except that it contains more than two-tenths of one per cent sulphur, does it differ from the standard gasolines. It is not dangerous to public health or safety, as is recognized by the legisla- ture itself when it permits the sale of a lower grade motor fuel containing an unlimited amount of sulphur, either corrosi ve or non-corrosi \·e. (Chapter 110. Laws of 1931.) For several months -thousands of consumers, eager to take advantage of its lower price, have been using this commodity, and it is significant that no complaint against its sale comes from these con- sumers. The act must be held not to prohibit the sale of this commodity if it he llroperly labeled, and if it be sold un- der conditions that the public will not he deceived concerning its sulphur con- tent. The state may not suppress en- tirely the sale of a useful and legiti- mate articles of commerce, where its traffic and use have no substantial re- lationship to pubHc health or safety.' The facts in the case at hand bear a remarkable resemblance to those in the case of Atlantic Refining Co. y. Trumbull, 43 J!"ed. (2d) 154. In that case the State of Connecticut sought to prohibit the sale of lubricating oils which did not conform to prescribed speCifications, but which nevertheless were useful and not dangerous to pub- lic health or safety. The court held the act unconstitutional and in discuss- ing the question said: ". • • the only warrant for the suppression of a le- gitimate business in a useful commod- ity of commerce lies in the lawful ex- ercise of the police power. It is shown hy the record that the lubricating oils in question are useful and harmless substances, and so long as sales are made honestly there can be no reason to prevent purchasers from obtaining 'what they wish, even though the ar- ticle may be cheaper or inferior to that specified in 323B." • * • "We are aware of the fact that it is contended that any oil which is not of an expen- sive and very high grade may be rep- resented to be of that grade and may lead in some cases to deception. But legislation like the present, where there is no proof of deception, is, un- der the decisions of the Supreme Court, interfering too greatly with legitimate transactions to be justifi~l by any possible or slight gain. The act seems too unreasonable and ar- hitrary in its provisions as not to meet the test of the decisions we haye cited." There are numerous authorities to OPI~lO~S OF THE ATTOHNEY GENERAL 253 the effect that a statute which abso- lutely prohihits the sale of a commod- i tv or the transaction of a business wilere there is no substantial relation- "hip to public health or safety, works II deprivation of liberty and property and I'iolates the Fourteenth Amend- ment to the Constitution of the United States. ('Veaver v. Palmer Bros. Co., et aI., 264 U. S. 504, 68 L. Ed. 654; .Tay Burns Baking Co. v. Chas. W. Bryan. et al.. 2&1 U. S. 504. 68 L. g(1. 813. 32 A. L. R 661; People v. Weiner, 271 Ill. 74 ; Greensboro I'. Ehrenreich. SO Ala. 579; State v. Taft, 118 N. C. uno; Kosciusko I', Slombel'g, 68 Miss. 469; Adams v. Tanner, 244 U, S'. 590, 51)6, 61 I~. Ed. 1336, L. R A. 1\)17 F 1163, Ann. Cas. 1917D 973; Weil v. Ricord. 24 N, J. Eq. 169; Freund on Police· Power, Section 58, 68; Tiede- lIlan on Police Power, p, 301.) 'Ve hal'e not overlooked the case of Powell v, Pennsylvania, 127 U, S. 678. but that decision has been weakened by later decisions. (Freund on Police Power, 62.) In ·Weaver v. Paymer Bros. Co" 270 U. S. 4{)2, cited above, the Supreme Court limited the appli- cation of the Powell case by saying tllat the Supreme Court in that case assumed that most kinds of the pro- duct there in question were or might become injurious to health. In order to sustain the constitution- ality of the act, which, with its amend- ments, contains many desirable pro- visions, it must 'be held that it was not the intent of the legislature to prohibit the sale of such commodit~', and that the sale is not unlawful if it be done without deception as to the sulphur content. The complaint which you hal'e re- cei I'ed requests you to take such steps "as may be necessary to prevent the foisting upon the public of gasoline containing an excess of sulphur." Without doubt, if this product is being offered for sale to the public under conditions that deceive the puhlic as to the sulphur content, then it is your duty to curb the practice, After considering the facts hefore m:, and in the absence of any com- plaint on the part of the consuming public which gratefully takes advan- tage of the lowered price at which the product is sold, we are not prepared to say that any deception is being practiced in its sale. However, the question whether or not deception is ueing practiced.is one of fact for your board to determine from all the cir- cumstances surrounding the sale of the product at each place of sale.