Governor of the State v. Exxon Corp.

Eldridge, J., delivered the opinion of the Court. In this case we are presented with several questions concerning the constitutionality of Chapter 854 of the Laws of Maryland of 1974, as amended by Chapter 608 of the Laws of 1975, and codified in Maryland Code (1957, 1972 Repl. Vol., 1976 Cum. Supp.), Art. 56, § 157E.

These chapters added the following provisions to the Motor Fuel Inspection Law (italicized portions are those added by Chapter 608 of the Laws of 1975): “(B) After July 1, 1974, no producer or refiner of petroleum products shall open a major brand, secondary brand or unbranded retail service station in the State of Maryland, and operate it with ⁴¹⁵ company personnel, a subsidiary company, commissioned agent,-or under a contract with any person, firm, or corporation, managing a service station on a fee arrangement with the producer or refiner. The station must be operated by a retail service station dealer. “(C) After July 1, 1975, no producer or refiner of petroleum products shall operate a major brand, secondary brand, or unbranded retail service station in the State of Maryland, with company personnel, a subsidiary company,* commissioned agent, or under a contract urith any person, firm, or corporation managing a* service station on a fee arrangement with the producer or refiner. The station must be operated by a retail service station dealer. “(D) Every producer, refiner, or wholesaler of petroleum products supplying gasoline and special fuels to retail service station dealers shall extend all voluntary allowances uniformly to all retail service station dealers supplied. “(E) Every producer, refiner, or wholesaler of petroleum products supplying gasoline and special fuels to retail service station dealers shall apply all equipment rentals uniformly to all retail service station dealers supplied. “(F) Every producer, refiner or wholesaler of petroleum products shall apportion uniformly all gasoline and special fuels to all retail service station dealers during periods of shortages on an equitable basis, and shall not discriminate among the dealers in their allotments. “(G) The Comptroller may adopt rules or regulations defining the circumstances in which a producer or refiner temporarily may operate a previously dealer-operated station. “(H) The Comptroller may permit reasonable exceptions to the divestiture dates specified by this ⁴¹⁶ section after considering all of the relevant facts and reaching reasonable conclusions based upon those facts.” In addition to the authority granted in Paragraphs G and H to promulgate rules and regulations for the temporary operation of retail service stations by producers and refiners', and to permit reasonable exceptions to the specified divestiture dates, see 2 Maryland Register 228, the Comptroller has the power generally to promulgate rules and regulations for the administration of the Motor Fuel Inspection Law, Art. 56, § 157B (a). Additionally, the Comptroller may direct those marketing petroleum products in violation of the Motor Fuel Inspection Law or regulations adopted pursuant thereto to cease such violations.

If the violations should continue, the Comptroller shall refer the matter to the Attorney General who is authorized to apply to the circuit courts for an injunction against the continuance of the violations, Art. 56, § 157B (b). There are also criminal penalties for violation of the Motor Fuel Inspection Law, Art. 56, § 157K. Chapter 854 was signed into law on May 31, 1974, effective July 1, 1974. On June 17, 1974, Exxon Corporation instituted an action in the Circuit Court for Anne Arundel County seeking a declaratory judgment pursuant to the Maryland Uniform Declaratory Judgments Act, Code (1974), § 3-401 et seq. of the Courts and Judicial Proceedings Article, that Chapter 854 be declared unconstitutional and invalid.

Additionally, Exxon sought injunctive relief prohibiting enforcement of Ch. 854. Defendants in the action were the Governor of Maryland, the Attorney General of Maryland, and the Comptroller of the Treasury of Maryland. Thereafter Continental Oil Company and its subsidiary Kayo Oil Company, Shell Oil Company,. Gulf Oil Corporation, Phillips Petroleum Company, Commonwealth Oil Refining Company, Inc., and its subsidiary Petroleum Marketing Corporation, and Ashland Oil, Inc., filed substantially similar actions, and all actions were consolidated for trial.

The plaintiffs either directly or ⁴¹⁷ through their subsidiaries are all engaged in the direct retail marketing of petroleum products in the state of Maryland. All, with the exception of Commonwealth and Ashland, are large multi-national, fully integrated oil companies engaged in the production, refining, transportation and marketing of petroleum products. Commonwealth is a refiner dependent solely upon foreign crude oil supplies, and markets gasoline through its wholly owned subsidiary, Petroleum Marketing Corporation. Ashland is primarily a refiner and marketer of petroleum products, but does engage in some limited production of crude oil. 1 Additionally, four independent retail dealers of Crown Central Petroleum Corporation were permitted to appear in support of the Act as amici curiae.

The substance of the oil companies’ attack on the validity of Chapter 854 is fairly represented by the allegations in Exxon’s complaint. The Act was challenged on several grounds. Exxon alleged that the Act did not bear a real and substantial relationship to the health, safety, morals or welfare of the people of Maryland and thus denied it due process of law in violation of Art. 23 of the Maryland Declaration of Rights and the Fourteenth Amendment to the United States Constitution; that the Act discriminates against and unduly burdens interstate commerce and is invalid under the Commerce Clause, Art. 1, § 8 of the United States Constitution; that the Act constituted a taking of its investment in retail service stations without just compensation in violation of Art. Ill, § 40 of the Maryland Constitution and the just compensation clause of the Fifth Amendment to the United States Constitution; that the Act, in prohibiting only producers and refiners of petroleum products from engaging in the retail sale of gasoline, denied them the equal protection of the laws in violation of Art. 23 and the Fourteenth Amendment; and that the provisions of the Act authorizing the Comptroller to issue rules and regulations permitting exceptions to the divestiture dates and allowing temporary operation of retail service stations ⁴¹⁸ by producers and refiners failed to set forth any standards to guide the Comptroller, and thus constituted an unlawful delegation of legislative authority in violation of Art. 8 of the Maryland Declaration of Rights. Additionally, it was alleged that the provision of the Act providing for equitable allocation of petroleum products was in conflict with the Federal Emergency Petroleum Allocation Act of 1975, 15 U.S.C. 751 et seq., that the provision of the Act requiring uniform “voluntary allowances” was in conflict with the Robinson-Patman Act, 15 U.S.C. 13, and that, therefore, both provisions were invalid under the Supremacy Clause of Art. VI of the United States Constitution.

Finally, it was alleged that certain provisions of the Act are void for vagueness. On May 5, 1975, the circuit court, after a pre-trial conference, entered an order prohibiting the defendants from enforcing the provisions of Chapter 854 against the plaintiffs while the cases were pending. Plaintiffs were ordered not to open any new retail service stations operated with company personnel nor to. convert existing retail service stations to direct company operation without first notifying defendants of their intention to do so and reasons therefor. Motions for partial summary judgment were then filed by Exxon, Shell and Gulf with respect to those provisions of the Act requiring uniform “voluntary allowances” (Paragraph D) and uniform allocation of products during periods of shortages (Paragraph F) on the ground that both were in conflict with federal law.

The motion was granted with respect to Paragraph D on October 14, 1975. The case then proceeded to trial on the remaining issues. Extensive evidence was presented at trial relating to the nature of the retail marketing of gasoline and petroleum products in Maryland and the alleged effect that the Act would have on the industry. Oil company officials, either by live testimony or by affidavits, testified that the Act would have an adverse effect insofar as the consumer is concerned.

They testified that by prohibiting producers and refiners from operating retail service stations, producers and ⁴¹⁹ refiners would lose the necessary control over operations to gauge accurately consumer preferences for such innovative features as self-service stations, car wash facilities, and total car care service facilities offering a national guarantee, thus allegedly depriving the consumers in Maryland of the wide variety of automotive services now available. They also testified that company operated stations 2 serve as training centers for independent dealers, insuring that consumers will be served by efficient, courteous and knowledgeable personnel at non-company operated stations. Additionally, executives of the three companies who market solely through company operated stations asserted that their type of low price-high volume stations could not be economically run with non-company personnel, and that, in all probability, they would be forced to withdraw from the Maryland market if the Act were to become effective. Four economists, qualified as expert witnesses, also testified on behalf of the oil companies in opposition to the Act.

In general, they believed the Act would reduce competition and would therefore be detrimental to the interests of the consumer. This reduction of competition would occur because, in their view, the Act would inhibit new competitors from entering the market, force existing, highly aggressive independent marketers such as Petroleum Marketing Corporation and Commonwealth out of the market, and would also limit the variety of auxiliary services available to consumers by discouraging tests of innovative marketing techniques. The State presented as its expert witness Dr. James M. Patterson, a professor of Business Administration, who is the author of two books on gasoline marketing. He testified that in his opinion the Act would actually enhance competition in gasoline marketing.

Elimination of company operated stations would preserve “intertype competition,” ⁴²⁰ which he described as competition among the various types of competitors in the marketplace such as private brand, non-integrated, and major brand marketers. On the other hand, increased company operation of service stations would, in his view, enable major integrated oil companies to use increased profits, resulting from the recent increases in crude oil prices, to drive various “price competitors” from the market as well as divert available gasoline supplies from independent, unbranded marketers. Such actions would, eventually, reduce overall competition in gasoline marketing. Evidence was also adduced by the State to show that several partially or fully integrated oil companies planned either to increase the number of company operated stations or to convert all stations to company operations.

This, the State argued, tended to support Dr. Patterson’s opinion that the major oil companies would seek to reduce competition among gasoline marketers by reducing the number of competitors. Significant evidence concerning the history and purpose of Chapter 854 was also presented. On June 13, 1973, the Governor requested that the Comptroller conduct a study of gasoline retailing in Maryland. The purpose of the study was to determine if the then existing shortage of fuel was real or contrived, and also to determine whether company owned and operated service stations were receiving larger allocations of gasoline than dealer operated or independent stations.

This request was motivated by the large number of complaints received by the Governor’s office concerning the availability of gasoline, and the fact that some brands of gasoline appeared to be available in unlimited quantities while other brands were available only in limited quantities. On June 29, 1973, questionnaires prepared by the Gasoline Tax Division of the Comptroller’s office were sent to registered gasoline service stations in the state. The results of this survey were tabulated, and a written analysis of the survey entitled “Results and Analysis of Service Station Dealers Questionnaire” was/submitted to the Governor on September 6,1973. The results of the survey were tabulated according to the ⁴²¹ type of service station responding to the questionnaire.

Service stations were divided into four categories: retail service stations leased to a dealer by a major oil company; independently owned stations operated under a major brand; unbranded stations; and company operated stations. According to the survey, company operated stations were “either unrestricted in their purchases or were allocated 100% of their needs.” Independently owned stations operated under a major brand name, however, were characterized as the “most abused” category, with a wide fluctuation in the percentage allocation based upon prior year purchases. According to the report, many were forced to close or restrict hours of operation because of decreased product availability. Unbranded stations and major stations leased to dealers fared better than independently owned stations, but both categories experienced reduced allocations from suppliers.

The report concluded that company operated stations “were virtually unaffected insofar as gasoline availability was concerned” while both branded and unbranded independents experienced “the greatest difficulty in obtaining gasoline” and the “greatest cost per gallon increase.” Subsequent to submission of the report to the Governor, and after several discussions with the Governor, the Comptroller’s office forwarded proposed legislation to the Governor on January 7, 1974, designed to correct the inequities in the distribution and pricing of gasoline reflected by the survey. Bills identical to the proposed legislation drafted by the Comptroller’s office were introduced in both houses of the General Assembly. The bills were then referred to the Senate Economic Affairs Committee and the House Economic Matters Committee, and both committees held public hearings on the bills. Representatives of the major oil companies appeared at both hearings in opposition to the proposed legislation.

They denied allegations that the shortage of gasoline was contrived and that company operation of service stations promoted inequitable product allocation, cancellation of dealer leases and control of retail prices. The oil company ⁴²² representatives believed that implementation of the legislation would decrease competition and would therefore be detrimental to the interests of Maryland consumers. Proponents of the bills also appeared at the hearings, including a representative of the Greater Washington/Maryland Service Station Association. He cited several recent examples of cancellations of dealer leases and conversions to company operation, as well as reduced allocation of products to dealers, to support his allegations that the major oil companies intended to control and monopolize retail marketing of gasoline by reducing and eliminating competition from . independent dealers.

Furthermore, he referred to a congressional report on the federal Petroleum Allocation Act expressing a similar concern over increased involvement of major oil companies in the retail marketing of gasoline. See Conference Report No. 93-628, 93d Cong., 1st Sess., reprinted in [1973] U. S. Code Cong. & Ad. News, 2688, 2707. The Comptroller also appeared in support of the Act, and submitted copies of his report and analysis of the dealer questionnaires to both committees.

The House and Senate Committees reported favorably on the bills. Both bills were amended by the removal of a prohibition against wholesalers operating retail service stations and by the addition of the provisions authorizing the Comptroller to adopt rules and regulations permitting temporary operation of stations by producers and refiners. In addition, the Senate bill was amended so as to authorize the Comptroller to allow reasonable exceptions to the divestiture dates specified in the bill. Both bills were then passed during the 1974 session of the General Assembly and submitted to the Governor for his approval.

The Governor held a special veto hearing on the bills at which both proponents and opponents again testified. Thereafter, the House bill was vetoed, Laws of Maryland of 1974, pp. 3137-3138, and the Senate bill was signed into law by the Governor, becoming Chapter 854 of the Laws of Maryland of 1974. At the conclusion of the trial, the circuit court filed a ⁴²³ decree declaring that Chapter 854 of the Laws of 1974 and Chapter 608 of the Laws of 1975 were unconstitutional and void. An injunction was also filed, enjoining the defendants from enforcing the statutes.

Although the circuit court’s holding was based primarily on the ground that the Act violated the due process clauses, the court also indicated that the Act was invalid for several other reasons raised by the oil companies. The defendants appealed from the judgment to the Court of Special Appeals, and we issued a writ of certiorari prior to a decision by the Court of Special Appeals. On this appeal, the oil companies reiterate their challenge to the Act on all of the constitutional grounds raised below. (1) Due Process The oil companies’ main attack upon the statute is on so-called “substantive due process” grounds.

They contend, as the trial court held, that the divestiture provisions of the Act (Paragraphs B and C) are an invalid exercise of the State’s police power in violation of the Due Process Clause of the Fourteenth Amendment and Art. 23 of the Maryland Declaration of Rights. 3 This Court has on numerous occasions in recent years discussed the standards applicable when the constitutionality of economic regulatory legislation is challenged on substantive due process grounds. Westchester West No. 2 v. Mont. Co., 276 Md. 448 , 348 A. 2d 856 (1975); Steuart Petroleum Co. v. Board, 276 Md. 435 , 347 A. 2d 854 (1975); Bowie Inn v. City of Bowie, 274 Md. 230 , 335 A. 2d 679 (1975); Md. St. Bd. of Barber Ex. v. Kuhn, 270 Md. 496 , 312 A. 2d 216 (1973); Md. Bd. of Pharmacy v. Sav-A-Lot, 270 Md. ⁴²⁴ 103, 311 A. 2d 242 (1973); Salisbury Beauty Schools v. St. Bd., 268 Md. 32 , 300 A. 2d 367 (1973); Potomac Sand & Gravel v. Governor, 266 Md. 358 , 293 A. 2d 241 , cert. denied, 409 U. S. 1040 , 93 S. Ct. 525 , 34 L.Ed.2d 490 (1972); Brooks v. State Board, 233 Md. 98 , 195 A. 2d 728 (1963); Allied American Co. v. Comm’r, 219 Md. 607 , 150 A. 2d 421 (1959). Recent Suprema Court decisions in this area are North Dakota Pharmacy Bd. v. Snyder’s Stores, 414 U. S. 156 , 94 S. Ct. 407 , 38 L.Ed.2d 379 (1973); Ferguson v. Skrupa, 372 U. S. 726 , 83 S. Ct. 1028 , 10 L.Ed.2d 93 , 95 A.L.R.2d 1347 (1963); and Williamson v. Lee Optical Co., 348 U. S. 483 , 75 S. Ct. 461 , 99 L. Ed. 563 (1955). ⁴²³ “This Court has long equated Art. 23 with the Due Process Clause of the Fourteenth Amendment.

E.g., Bowie Inn v. City of Bowie, supra, 274 Md. at 235 n. 1; In re Easton, 214 Md. 176, 187 , 133 A. 2d 441 (1957); Solvuca v. Ryan & Reilly Co., 131 Md. 265, 270 , 101 A. 710 (1917); Pub. S. Com. v. N. C. Rwy Co., 122 Md. 355, 386 , 90 A. 105 (1914); Baltimore Belt R.R. v. Baltzell, 75 Md. 94, 99 , 23 A. 74 (1891).” ⁴²⁴ Last term, in Westchester West No. 2 v. Mont. Co., supra, 276 Md. at 454-455, in holding that a Montgomery County rent control law did not violate the Due Process Clause of the Fourteenth Amendment or Art. 23 of the Maryland Declaration of Rights, we discussed the function of the courts in reviewing regulatory legislation alleged to be violative of the due process clauses. We emphasized that the function of the courts in this area is “very limited,” and went on to say (276 Md. at 455): “Unless the exercise of the police power by the Legislature is shown to be arbitrary, oppressive or unreasonable, the courts will not interfere with it.

Bowie Inn v. City of Bowie, supra, 274 Md. at 236 ; Salisbury Beauty Schools v. St. Bd., supra, 268 Md. at 48 . Moreover, the wisdom of expediency of a law adopted in the exercise of the police power of a state is not subject to judicial review, and such a statute will not be held void if there are any considerations relating to the public welfare by which it can be supported. Bowie Inn v. City of Bowie, supra, 274 Md. at 236 ; Sav-A-Lot, supra, 270 Md. at 106; Salisbury Beauty Schools v. St. Bd., supra, 268 Md. at 48 .” Judicial deference to legislative judgment is appropriate when reviewing legislation dealing with economic problems. In Ferguson v. Skrupa, supra, in holding constitutional a ⁴²⁵ statute permitting only attorneys to engage in the business of debt adjustment, the Supreme Court said ( 372 U. S. at 730-732 , 83 S. Ct. at 1031-1032 ): “We have returned to the original constitutional proposition that courts do not substitute their social and economic beliefs for the judgment of legislative bodies, who are elected to pass laws.

As this Court stated in a unanimous opinion in 1941, ‘We are not concerned . . . with the wisdom, need, or appropriateness of the legislation.’ Legislative bodies have broad scope to experiment with economic problems, and this Court does not sit to ‘subject the State to an intolerable supervision hostile to the basic principles of our Government and wholly beyond the protection which the general clause of the Fourteenth Amendment was intended to secure.’ It is now settled that States ‘have power to legislate against what are found to be injurious practices in their internal commercial and business affairs, so long as their laws do not run afoul of some specific federal constitutional prohibition, or of some valid federal law.’ * * * “... We refuse to sit as a ‘superlegislature to weigh the wisdom of legislation,’ and we emphatically refuse to go back to the time when courts used the Due Process Clause ‘to strike down state laws, regulatory of business and industrial conditions, because they may be unwise, improvident, or out of harmony with a particular school of thought.’ ” And as was said in Williamson v. Lee Optical Co., supra, 348 U. S. at 488 , 75 S. Ct. at 464 , quoted by us recently in Steuart Petroleum Co. v. Board, supra, 276 Md. at 447, the wisdom of the Act is not for us to judge as “[i]t is enough that there is ⁴²⁶ an evil at hand for correction, and that it might be thought that the particular legislative measure was a rational way to correct it.” A statute enacted by the Legislature in the exercise of the police power “is presumed to be valid and one attacking its validity has. the burden of affirmatively and clearly establishing its invalidity.” Salisbury Beauty Schools v. St. Bd., supra, 268 Md. at 48 . While the oil companies have presented evidence questioning the wisdom of the Act and perhaps raising doubts as to the efficacy of the Act in achieving its purpose of preserving a highly competitive retail gasoline market, they have failed to meet their burden. It has not been demonstrated that the Act is “arbitrary” or that there are no “considerations relating to the public welfare by which it can be supported.” Quite to the contrary, the history of Chapter 854 establishes that it was the product of a careful and deliberate process involving a study of retail márketing of gasoline products in Maryland as well as three public hearings at which opponents of the Act, including some of those now challenging it, were able to present their objections to both the Legislature and the Governor.

The oil companies do not contend that the Legislature may not under any circumstances limit the nature, of business which, they may conduct in the state. See, e.g., Daniel v. Family Ins. Co., 336 U. S. 220 , 69 S. Ct. 550 , 93 L. Ed. 632 , 10 A.L.R.2d 945 (1949); Asbury Hospital v. Cass County, 326 U. S. 207 , 66 S. Ct. 61 , 90 L. Ed. 6 (1945); Brooks v. State Board, supra. Rather, the oil companies ask us to review the evidence concerning the possible effect of the Act and to substitute our judgment for that of the Legislature.

In Bowie Inn v. City of Bowie, supra, we were presented with a similar situation. There, the city council of Bowie, in order to control a problem of roadside litter, enacted an ordinance, after a public hearing, requiring a deposit to be collected on all soft drink and malt beverage containers, which would be refunded upon return of the container. There, as here, those challenging the ordinance offered evidence that the ordinance would not be effective in ⁴²⁷ achieving its stated goal, and asked the Court to decide from such evidence that the city council acted arbitrarily and unreasonably. We rejected this contention in light of evidence presented to the city council that there was a need for litter control and in view of the fact that the means adopted by the city council could conceivably be effective in reducing the problem of litter.

Here the Legislature was presented with evidence that refiners and producers were favoring company operated stations in the allocation of gasoline. The Comptroller’s report showed that, because of the inability to obtain adequate supplies of gasoline, some service station dealers were forced to close. Evidence was also presented that many dealer operated stations were being converted to company operation. The Legislature could reasonably conclude that control of the retail gasoline market by producers and refiners would decrease competition and that the continued existence of independent retail dealers was necessary to preserve competition. 4 Exclusion of producers and refiners may conceivably be a reasonable means of preserving competition and preventing monopolistic control of gasoline marketing by a few large oil companies.

Divestiture of retail gasoline stations by producers and refiners as a means of preserving competition in retail gasoline marketing recently has been recommended by at least two congressional committees. See H. R. Rep. No. 94-1762, 94th Cong., 2d Sess. (1976); S. Rep.

No. 94-1005, 94th Cong., 2d Sess. (1976). Indeed, in Federal Trade Comm’n v. Sun Oil Co., 371 U. S. 505, 528 , 83 S. Ct. 358, 371 , 9 L.Ed.2d 466 (1963), the Supreme Court recognized that elimination of retail service ⁴²⁸ station dealers through forward vertical integration may be an “evil” requiring legislative action. The oil companies have presented evidence which casts some doubt on the wisdom of the Act.

The State’s expert witness conceded that the Act, by excluding certain partially integrated marketers, could in some respects be anti-competitive, although he believed that it would, on the whole, promote competition. However, as discussed above, the courts may not substitute their judgment for that of the Legislature. Especially where reviewing legislation dealing with a serious problem in a new and untried fashion, the courts are under a special duty to respect the legislative judgment as to the proper means of solving the problem. Legislation prohibiting operation of retail service stations by producers and refiners of petroleum has been proposed in several states as well as in Congress but only recently has been enacted by several states.

See Note, Gasoline Marketing Divestiture Statutes: A Preliminary Constitutional and Economic Assessment, 28 Vand. L. Rev. 1277 (1975). As of now there has been no evidence by which to judge the effects of these statutes and predictions as to the. effects of the Act are at best speculative. In Bowie Inn v. City of Bowie, supra, we commented on the importance of permitting new legislation to be tested, as follows ( 274 Md. at 237-238 ): “Here, invalidation of the ordinance would deprive the City Council of Bowie and any other legislative body contemplating such a law of any opportunity to discover whether the ordinance will be good, bad or indifferent in its results.

The words of Mr. Justice Frankfurter in American Federation of Labor v. American Sash and Door Co., 335 U. S. 538, 553 , 69 S. Ct. 258, 265 , 93 L. Ed. 222 , 6 A.L.R.2d 481 (1949) (concurring opinion), are particularly appropriate: ‘Even where the social undesirability of a law may be convincingly urged, invalidation of the law by a court ⁴²⁹ debilitates popular democratic government. Most laws dealing with economic and social problems are matters of trial and error. That which before trial appears to be demonstrably bad may belie prophesy in actual operation. It may not prove good, but it may prove innocuous.

But even if a law is found wanting on trial, it is better that its defects should be demonstrated and removed than that the law should be aborted by judicial fiat. Such an assertion of judicial power deflects responsibility from those on whom in a democratic society it ultimately rests — the people.’ ” For these reasons, we hold that the court below erred in holding that the Act was violative of the Due Process Clause of the Fourteenth Amendment or Art. 23 of the Maryland Declaration of Rights. (2) Commerce Clause The oil companies also contend that the divestiture provisions of the Act are invalid under the Commerce Clause, Art. I, § 8 of the United States Constitution. The companies argue that the purpose of the Act is to protect local retail service station operators from competition by those engaged in interstate commerce.

To accomplish this purpose, it is contended that the Act denies out-of-state competitors access to local retail gasoline markets and thus discriminates against interstate commerce. In support of this contention, the oil companies rely on H. P. Hood & Sons v. DuMond, 336 U. S. 525 , 69 S. Ct. 657 , 93 L. Ed. 865 (1949). The Supreme Court has on several occasions struck down state statutes regulating the production and sale of a commodity as violative of the Commerce Clause where it has found that the purpose and effect of the statute was solely to protect local economic interests by discriminating against interstate commerce. In Baldwin v. G.A.F. Seelig, 294 U. S. 511 , 55 S. Ct. 497 , 79 L. Ed. 1032 , 101 A.L.R. 55 (1935), a New ⁴³⁰ York statute establishing a minimum price to be paiu out-of-state producers of milk to be sold locally was held unconstitutional.

The Court found that the practical effect of the statute was to protect local producers from competition by excluding milk produced in other states from the New York market;. Another New York statute was held unconstitutional in H. P. Hood & Sons v. DuMond, supra. There the statute granted the State Commissioner of Agriculture the authority to deny milk processors a license to operate milk receiying and processing plants if it were found that such plants would lead to “destructive competition in a market already adequately served.” The petitioner, a milk processor who operated several receiving and processing plants in New York for milk to be sold in Massachusetts, was denied a license to operate a new facility. The Court determined that a license was denied to prevent exportation of milk from New York during a time when there was a temporary shortage of milk in the area in which the plant was to be located.

Relying on the principle that the states may not “advance their own commercial interests by curtailing the movement of articles of commerce,” the Court held that the statute as applied violated the Commerce Clause and was therefore unconstitutional. 336 U. S. at 535. Similarly, in Dean Milk Co. v. Madison, 340 U. S. 349 , 71 S. Ct. 295 , 95 L. Ed. 329 (1951), the Court held unconstitutional a municipal ordinance which prohibited the sale of pasteurized milk in the city of Madison, Wisconsin, unless processed and bottled within a five mile radius of the center of town and which required that the source of supply of all milk be inspected by city officials, but which imposed a twenty-five mile limit on the area in which inspectors would travel. The petitioner was an Illinois corporation whose milk supply and processing plants were outside of the geographic limitations imposed by the ordinance. While recognizing that the city had a legitimate interest in protecting the health of its citizens by insuring that only wholesome milk be sold within its boundaries, the Court, found. that the ordinance, as in Baldwin v. G.A.F. Seelig, supra, had the ⁴³¹ effect of excluding importation of wholesome milk produced out of state.

Thus, the ordinance discriminated against interstate commerce by “erecting an economic barrier protecting a major local industry against competition from without the state” in violation of the Commerce Clause. 340 U. S. at 354 . A feature common to all three of these regulatory schemes was that they burdened the free flow of goods in commerce between the states by effectively hindering either the import or export of goods. And whether this burden on the movement of goods be direct and apparent on.the face of the statute as in Baldwin v. G.A.F. Seelig, supra, or indirect as in H. P. Hood & Sons v. DuMond, supra, and Dean Milk Co. v. Madison, supra, the Court could conclude that the purpose and effect of the statute was primarily to protect a local industry by discriminating against interstate commerce. The Maryland statute here under consideration, however, differs in several substantial ways.

First, Chapter 854 would not in any way restrict the free flow of petroleum products into or out of the state. The Act merely regulates a wholly intrastate activity, the retail marketing of gasoline within the state. Producers and refiners would still remain free to import and sell petroleum products to wholesalers and to retail service station dealers. The only restriction is that producers and refiners may not operate retail service stations in Maryland with their own employees but must do so with retail service station dealers.

Second, although the oil companies contend that the purpose of the Act was to protect local economic interests from the competition of oil companies engaged in interstate commerce, in view of the legislative history of the Act we cannot agree with this contention. There is every indication that the purpose of the statute was to preserve competition within the retail gasoline marketing industry in Maryland. As previously discussed, the Comptroller’s report, as well as other evidence presented to the Legislature, indicated that company operated stations received greater allocations of gasoline during a period of shortage than did dealer operated stations, forcing many dealers out of business. Moreover, ⁴³² there was evidence that the oil companies intended to increase the number of company operated stations.

The General Assembly, after considering the activities of producers and refiners in the industry, concluded, as have several congressional committees, that the recent trend of increased direct operation of service stations by producers and refiners, if allowed to continue, could substantially decrease competition and lead to the control of that market by a few major oil companies. See H. R. Rep. 94-1762, 94th Cong., 2d Sess. 28 (1976); H. R. Rep. No. 1423, 84th Cong., 1st Sess. 17 (1955). Thus, the purpose was not to protect Maryland interests from out-of-state competition.

Finally, the Act does not in effect discriminate against out-of-state economic interests as opposed to local interests. The Act is equally applicable to all producers and refiners. While oil is not produced in Maryland, and is not presently being refined in Maryland, there are producers or refiners which are Maryland corporations, or are headquartered here, or have substantial facilities here, or do a significant portion of their business here. All such “Maryland” businesses are prohibited by the Act from operating retail service stations.

If a refiner were to build refineries in Maryland, and were to engage in business solely within Maryland, it would be prohibited by the Act from marketing through a company operated station. On the other hand, out-of-state and Maryland retailers are treated the same. An out-óf-state marketer not engaged in producing or refining may continue to market in Maryland through retail service stations operated with company personnel. The only Supreme Court case of which we are aware which considers a challenge to a state divestiture statute on Commerce Clause grounds is Crescent Oil Co. v. Mississippi, 257 U. S. 129 , 42 S. Ct. 42 , 66 L. Ed. 166 (1921). 5 There, a ⁴³³ Mississippi statute prohibited both out-of-state and Mississippi corporations engaged in the manufacture of cotton seed oil or cotton seed meal from owning or operating cotton gins.

It was argued that the statute was enacted because the legislature believed that manufacturers of cotton seed oil or meal, if also allowed to operate cotton gins, would depress the price charged for ginning in order to suppress competition in the ginning industry. The petitioner contended that the statute imposed a direct and unconstitutional burden on interstate commerce. The Court rejected this contention, pointing out that the statute regulated only a manufacturing process conducted within the state. In holding in Crescent Oil that the Mississippi statute did not violate the Commerce Clause, the Supreme Court noted that the activity to be regulated was intrastate manufacturing and not interstate commerce.

While we recognize that the distinction between “manufacturing” and “commerce” is no longer the test of congressional power to regulate activities under the Commerce Clause, Wickard v. Filburn, 317 U. S. 111 , 63 S. Ct. 82 , 87 L. Ed. 122 (1942), it may be of some significance in determining a state’s authority. The fact that Congress may regulate in this area does not necessarily result in the loss of the state’s power to regulate an intrastate activity which may possibly have some effect on interstate commerce. The Supreme Court, in Cities Service Co. v. Peerless Co., 340 U. S. 179, 186-187 , 71 S. Ct. 215, 219-220 , 95 L. Ed. 190 (1950), stated: “The Commerce Clause gives to the Congress a power over interstate. commerce which is both paramount and broad in scope. But due regard for state legislative functions has long required that this power be. treated as not exclusive.

Cooley v. Port Wardens, 12 How. 299 (1851). It is now well settled that a state may regulate matters of local concern over which federal authority has not been exercised, even though the regulation has some impact on interstate commerce. Parker v. Brown, ⁴³⁴ 317 U. S. 341 (1943); Milk Control Board v. Eisenberg Farm Products, 306 U. S. 346 (1939); South Carolina Highway Dept. v. Barnwell Bros., 303 U. S. 177 (1938). The only requirements consistently recognized have been that the regulation not discriminate against or place an embargo on interstate commerce, that it safeguard an obvious state interest, and that the local interest at stake outweigh whatever national interest there might be in the prevention of state restrictions.

Nor should we lightly translate the quiescence of federal power into an affirmation that the national interest lies in complete freedom from regulation. South Carolina Highway Dept. v. Barnwell Bros., supra.” See also Huron Cement Co. v. Detroit, 362 U. S. 440, 443-444 , 80 S. Ct. 813 , 4 L.Ed.2d 852 , 78 A.L.R.2d 1294 (1960); Breard v. Alexandria, 341 U. S. 622, 634 , 71 S. Ct. 920 , 95 L. Ed. 1233 , 35 A.L.R.2d 335 (1951); Panhandle Co. v. Michigan Comm’n, 341 U. S. 329 , 71 S. Ct. 777 , 95 L. Ed. 993 (1951); Bowie Inn v. City of Bowie, supra, 274 Md. at 244-245 . More recently, the Court has indicated that in determining the validity of a state statute affecting interstate commerce, a balancing of the state interest involved in relation to the burden imposed upon interstate commerce may sometimes be appropriate. This “weighing test” was described in Pike v. Bruce Church, Inc., 397 U. S. 137, 142 , 90 S. Ct. 844 , 25 L.Ed.2d 174 (1970), as follows: “Although the criteria for determining the validity of state statutes affecting interstate commerce have been variously stated, the general rule that emerges can be phrased as follows: Where the statute f-egulates evenhandedly to effectuate a legitimate local public interest, and its effects on interstate commerce are only incidental, it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits.

Huron Cement Co. v. ⁴³⁵ Detroit, 362 U. S. 440, 443 . If a legitimate local purpose is found, then the question becomes one of degree. And the extent of the burden that will be tolerated will of course depend on the nature of the local interest involved, and on whether it could be promoted as well with a lesser impact on interstate activities. Occasionally the Court has candidly undertaken a balancing approach in resolving these issues, Southern Pacific Co. v. Arizona, 325 U. S. 761 , but more frequently it has spoken in terms of ‘direct’ and ‘indirect’ effects and burdens.

See, e.g., Shafer v. Farmers Grain Co., supra [ 268 U. S. 189 ].” Applying these principles, we conclude that the divestiture provisions of the Act do not violate the Commerce Clause. The Act does not discriminate against interstate commerce as all producers and refiners, whether in or out of the state, are affected equally. The promotion of the economic welfare is a legitimate interest of a state, Pike v. Bruce Church, Inc., supra, 397 U. S. at 143 ; Parker v. Brown, 317 U. S. 341, 363 , 63 S. Ct. 307 , 87 L. Ed. 315 (1943), and it has long been recognized that the states have the power to pass legislation to promote competition by preventing monopolistic activity in restraint of trade, Watson v. Buck, 313 U. S. 387, 403-404 , 61 S. Ct. 962 , 85 L. Ed. 1416 , 136 A.L.R. 1426 (1941); Waters-Pierce Oil Co. v. Texas (No. 1), 212 U. S. 86, 107 , 29 S. Ct. 220 , 53 L. Ed. 417 (1909). The record, on the other hand, fails to establish that the Act will, to a significant degree, burden interstate commerce.

The allegations of the oil companies that the restrictions placed on producers and refiners will limit the availability of products and services to those traveling in interstate commerce is, at best, highly speculative. Bowie Inn v. City of Bowie, supra. Most of the producers and refiners have in the past operated only a small percentage of the retail service stations which they supply. The vast majority of retail service stations in Maryland, supplying ⁴³⁶ both interstate and intrastate travelers, are operated by independent dealers. 6 It is true that three of the oil companies involved in this action do market exclusively through company operated stations, 7 and officials of these companies indicated at trial that they might be forced to withdraw from the Maryland market if the Act were to become effective.

However, at least two of these company witnesses on cross-examination indicated that no firm decision had been made to withdraw if the Act were to become effective, and that it still might be possible to distribute products in Maryland both through dealer operations and on the wholesale market. It therefore appears that there will be no significant disruption of the flow of petroleum products into the state nor in the distribution of those products to those in interstate commerce. We believe that the state’s interest, as determined by the Legislature, outweighs any slight burden which the Act may impose on interstate commerce. For all of the above reasons, the divestiture provisions of the Maryland Act are not unconstitutional under the Commerce Clause.

(3) Unconstitutional Taking The trial court held that the divestiture provisions of the Act constitute a taking of private property without just compensation, in violation of Art. Ill, § 40 of the Maryland Constitution and the just compensation clause of the Fifth Amendment to the United States Constitution, applicable to the states through the Fourteenth Amendment. For government restriction upon the use of property to ⁴³⁷ constitute a taking in the constitutional sense, so that compensation must be paid, the restriction must be such that it essentially deprives the owner of all beneficial uses of his property. As this Court stated in Baltimore City v. Borinsky, 239 Md. 611, 622 , 212 A. 2d 508 (1965): “The legal principles whose application determines whether or not the restrictions imposed ... on the property involved are an unconstitutional taking are well established. If the owner affirmatively demonstrates that the legislative or administrative determination deprives him of all beneficial use of the property, the action will be held unconstitutional.

But the restrictions imposed must be such that the property cannot be used for any reasonable purpose. It is not enough for the property owners to show that the . . . action results in substantial loss or hardship.” Goldblatt v. Hempstead, 369 U. S. 590, 592 , 82 S. Ct. 987 , 8 L.Ed.2d 130 (1962); United States v. Central Eureka Mining Co., 357 U. S. 155, 168 , 78 S. CL 1097, 1104, 2 L.Ed.2d 1228 (1958); Bureau of Mines v. George’s Creek, 272 Md. 143, 165 , 321 A. 2d 748 (1974); Rockville v. Stone, 271 Md. 655, 663-664 , 319 A. 2d 536 (1974). The Maryland Act, in prohibiting producers and refiners from directly operating retail service stations, clearly does not constitute a “taking” in the constitutional sense. The divestiture provisions of the Act do not deprive producers and refiners owning retail service stations of all beneficial uses of their property, or even of the existing and presumably most profitable use of their property.

As previously discussed, the majority of retail service stations are now operated by dealers and not employees. Thus the Act will have less impact, for example,, than. the.zoning provisions upheld in Goldblatt v. Hempstead, supra, or Baltimore City v. Borinsky, supra, which deprived the owners of the most profitable use of the property. The relatively few service stations directly operated by producers and refiners may continue to be used as service ⁴³⁸ stations, as producers and refiners may lease the property to dealers. The Maryland Act does not prohibit an oil company from owning a retail service station or having the station operated as a retail outlet for that company’s products.

It merely requires that the station be operated by a retail dealer rather than by