242 N.Y. 330, Larkin Co., Inc. v. Schwab

• Docket Number: .
• Date: 30 March 1926
• Citation: 242 N.Y. 330
• Parties: In the Matter of the Application of LARKIN CO., INC., Respondent, for a Peremptory Order of Mandamus v. FRANK X. SCHWAB, as Mayor of the City of Buffalo, et al., Appellants.
• Court: New York Court of Appeals Court of Appeals

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242 N.Y. 330

In the Matter of the Application of LARKIN CO., INC., Respondent, for a Peremptory Order of Mandamus

v.

FRANK X. SCHWAB, as Mayor of the City of Buffalo, et al., Appellants.

New York Court of Appeal

March 30, 1926

Argued March 4, 1926.

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COUNSEL

Frederic C. Rupp, Corporation Counsel (Andrew P. Ronan of counsel), for appellants. The ordinance regulating the storage of oil and gasoline is a valid exercise of the police power of the city of Buffalo. (Fischer v. City of St. Louis, 194 U.S. 361; Davis v. Massachusetts, 167 U.S. 43; Wilson v. Eureka City, 173 U.S. 32; 2 Dillon on Mun. Corp. § 598.) The council has the right to determine the location of gasoline stations. (City of Buffalo v. Hill, 79 A.D. 402; People ex rel. Doyle v. Atwell, 232 N.Y. 96.) The action of the council in refusing this permit was not arbitrary or capricious. (Standard Oil Co. v. City of Minneapolis, 204 N.W. 165.) The granting or withholding of the consent of the council in this matter was absolutely discretionary. (People ex rel. Durham R. Corp. v. LaFetra, 230 N.Y. 429;

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Lincoln Trust Co. v. Williams Building Corp., 229 N.Y. 313.)

John Lord O'Brian and Ralph Ulsh for respondent. The Larkin Company, as an abutting owner on Bailey avenue, has an easement of unrestricted access to its property for business purposes. This is property of which it cannot be deprived except by due process of law and upon payment of compensation. (McMillan v. Klaw & Erlanger Const. Co., 107 A.D. 407; Kane v. N.Y. E. R. R. Co., 125 N.Y. 164; Lahr v. Met. El. R. R. Co., 104 N.Y. 266; Peace v. M'Adoo, 46 Misc. 295; 110 A.D. 13; People ex rel. Winthrop v. Delaney, 120 A.D. 801; Waldorf-Astoria Hotel Co. v. New York, 212 N.Y. 97; Forster v. Scott, 136 N.Y. 577.) The city cannot under an ordinance requiring permits for the storage of inflammables deprive the respondent of the right of access to its property from Bailey avenue or regulate traffic. (Matter of Picone v. Comr. of Licenses, 241 N.Y. 157; People ex rel. C. H. Realty Co. v. Stroebel, 209 N.Y. 434; People v. Green, 85 A.D. 400; City of Buffalo v. Kellner, 90 Misc. 407; City of Buffalo v. Collins Baking Co., 39 A.D. 432.) The action of the city council in refusing a permit was unreasonable, arbitrary and discriminatory and not in the exercise of any lawful discretion. (Lees v. Cohoes Motor Car Co., Inc., 122 Misc. 373; People ex rel. Empire City Trotting Club v. State Racing Commission, 190 N.Y. 31; People ex rel. Lodes v. Department of Health, 189 N.Y. 187; People ex rel. Cosby v. Robinson, 141 A.D. 656.)

LEHMAN, J.

In May, 1924, the petitioner Larkin Co., Inc., made application to the council of the city of Buffalo for permission to install upon certain premises it occupied two submerged tanks for the storage of gasoline of the capacity of 10, 000 gallons each. The city council denied

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this application, but a peremptory mandamus order has been granted at Special Term and affirmed by the Appellate Division commanding the council to issue a permit authorizing the Larkin Co., Inc., to install upon its premises 'two submerged tanks for gasoline of the capacity of 10, 000 gallons each, and to construct and operate upon said premises a gasoline filling station and accessory house.'

Under the provisions of the charter of the city of Buffalo the council has unquestioned power to prohibit or regulate the storage within the city of gasoline in dangerous quantities. Pursuant to these powers the council adopted an ordinance which regulated the transportation and storage of gasoline, and entirely prohibited its storage under certain conditions without the consent of the council. The ordinance states that 'no consent for the burying of a tank in excess of five hundred and fifty gallons capacity shall be granted except by a vote in favor thereof of at least four-fifths of the members.' It provides further that such consents may not be given under certain conditions, but it does not attempt to set forth conditions under which it shall be granted. The application of the petitioner shows that none of the conditions are present which, under the terms of the ordinance, would place granting of consent by the council beyond its powers. The council has concededly the power to act; it chooses not to do so. The mandamus order has been granted because the courts have held that refusal to act is unreasonable, and that as a matter of law upon conceded facts the petitioner is entitled to a permit, and no room is left for the exercise of the discretion of the council in granting or refusing its consent.

Before we consider the circumstances surrounding the council's denial of petitioner's application in this particular case, we should determine the extent of the powers and duty of the council under the ordinance. The ordinance

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fixes no standards which must govern the determination of the council as to when its consent should be granted or withheld. The ordinance is not invalid for this reason. The council, acting in its legislative capacity, had power to prohibit entirely the storage of gasoline in large tanks within the city limits, if in its opinion the danger and disadvantage arising therefrom outweighed the benefits which might be derived from permitting such storage. It decided to prohibit storage in tanks of over five hundred gallons capacity, except where consent was thereafter given in special cases. It might in the ordinance have provided that the dispensing power should be exercised in accordance with formulated standards; it preferred to make determination of whether consent should be granted in any special case, dependent upon the facts of that case. The council, acting in its legislative capacity, enacted that the dispensing power should be vested in the same body that enacted the statute. Such statute is valid. (Fischer v. St. Louis, 194 U.S. 361.)It makes a general rule, but maintains the right to create exceptions. It does not deny to any person the equal protection of the laws nor deprive him of liberty or property without due process of law. It places upon all alike the prohibition against the use of large...