Adkins v. City of West Frankfort

• Decision Date: 07 September 1943
• Docket Number: Civil Action No. 339-D.
• Citation: 51 F. Supp. 532
• Parties: ADKINS v. CITY OF WEST FRANKFORT et al.
• Court: U.S. District Court — Eastern District of Illinois

51 F. Supp. 532

ADKINS v. CITY OF WEST FRANKFORT et al.

Civil Action No. 339-D.

District Court, E. D. Illinois.

September 7, 1943.

J. G. Van Keuren and Henry H. Harbour, both of DuQuoin, Ill., and C. E. Feirich, of Carbondale, Ill., for plaintiff.

Frank E. Trobaugh, of West Frankfort, Ill., for defendant.

LINDLEY, District Judge.

Plaintiff instituted this suit against the City of West Frankfort and its corporate officers to enjoin enforcement of an ordinance passed February 9, 1943, regulating drilling for oil and gas and erection, maintenance and operation of equipment used in production of oil within the City.¹ Plaintiff now seeks a preliminary injunction and defendants, in addition to resisting this application, move to dismiss the complaint for want of equity.

Bill, the owner of the oil and gas under certain property located in the city, on July 6, 1942, executed an oil lease to one Tread-well, who, on April 22, 1943, assigned it to plaintiff, who, desiring to drill, avers that the ordinance is invalid and that defendants have threatened to interfere and to prevent plaintiff from proceeding unless he complies with the ordinance. The assertion that the ordinance is unconstitutional largely resolves itself into two inquiries: (1) Has the city authority under the statutes to pass such an ordinance? (2) If the city has such statutory power, does the ordinance bear such a reasonable relation to the public health, convenience and welfare as to constitute a valid exercise of police power?

Under Ill.Rev.Stat. 1941, c. 24, § 23—76, a municipality has the power "to grant permits to mine oil or gas, under such restrictions as will protect public and private property and insure proper remuneration for such grants."

The Act further provides, Sec. 23— 105, that a municipality has the power: "To pass and enforce all necessary police ordinances." This provision is not concerned merely with organization and regulation of a police force; it embraces authority, under the general police power of the state, to pass and enforce all ordinances which may be reasonably necessary or proper to achieve accomplishment of regulation of all subjects and occupations, which, by other specific sections, authority is delegated to regulate and control. City Chicago v. Gunning System, 214 Ill. 628, 634, 73 N.E. 1035, 70 L.R.A. 230, 2 Ann.Cas. 892; Saxton v. Peoria, 75 Ill.App. 397; Consumer's Co. v. Chicago, 313 Ill. 408, 145 N.E. 114; Arms v. Chicago, 314 Ill. 316, 145 N.E. 407; Moy v. Chicago, 309 Ill. 242, 140 N.E. 845.

The police power includes authority over public health, safety, morals and general welfare. Village of La Grange v. Leitch, 377 Ill. 99, 35 N.E.2d 346; City of Chicago v. Clark, 359 Ill. 374, 194 N.E. 537; People v. Chicago, 261 Ill. 16, 103 N.E. 609, 49 L.R.A.,N.S., 438, Ann.Cas. 1915A, 292. Drilling for and producing oil and gas tends to create dangerous fire hazards. Under Section 23—72, granting power to cause all buildings and enclosures in dangerous fire condition to be put in a safe condition, the city is authorized to adopt all reasonable and necessary ordinances in regard to oil wells in order to diminish the inherent fire hazard.

Drilling for oil and gas has been subjected to regulation in statutes fixing the basis for appropriation of oil and gas from a common pool; Ohio Oil Co. v. Indiana, 177 U.S. 190, 20 S.Ct. 576, 44 L.Ed. 729; Walls v. Midland Carbon Co., 254 U.S. 300, 41 S.Ct. 118, 65 L.Ed. 276; in limitation of the number of wells to be drilled in a given area, Oxford Oil Co. v. Atlantic Oil & Producing Co., D.C.N.D. Tex., 16 F.2d 639, affirmed 5 Cir., 22 F.2d 597; Van Meter v. H. F. Wilcox Oil & Gas Co., 170 Okl. 604, 41 P.2d 904; Cash v. Beveridge, 183 Okl. 310, 82 P.2d 665; and in zoning ordinances which prohibit drilling in certain districts, Marblehead Land Co. v. Los Angeles, 9 Cir., 47 F.2d 528, certiorari denied 284 U.S. 634, 52 S.Ct. 18, 76 L.Ed. 540; Cromwell-Franklin Oil Co. v. Oklahoma City, D.C.W.D.Okl., 14 F.Supp. 370. Indeed, ordinances with provisions substantially similar to that in question have been upheld. Marrs v. City of Oxford, 8 Cir., 32 F.2d 134, 67 A.L.R. 1336, certiorari denied, Ramsey v. City of Oxford, 280 U.S. 563, 50 S.Ct. 24, 74 L.Ed. 617; Tysco Oil Co. v. Railroad Comm. of Texas, D.C.S.D.Tex., 12 F.Supp. 195; Id., D.C.S.D.Tex., 12 F.Supp. 202. Clearly, under its statutory powers, the city has power to establish reasonable regulations for the drilling of oil wells within its boundaries.

Does the ordinance bear a reasonable relation to the public health, welfare and safety?

Oil and gas and the methods used in obtaining them from the subsurface are unique. Oil is a fugitive mineral and, if extracted at any one point of a pool, other oil will flow some distance to replace that taken. Thus, one drilling near his boundary, removes not only oil from his land but also some from his abutting neighbor. Adjoining lot owners have no choice, in order to protect their oil, but to sink an offset well. Results a mad rush to sink wells as quickly as possible and to reduce the oil to possession before the adjoining owner's well is completed.

Different lot owners may lease to divers rival oil companies. Many men and much material converge upon the field. Heavy drilling equipment, hauled over the streets, may leave them rough, rutted and dusty. Excavations are made, slush pits dug, and temporary buildings erected. With the opening of a new field also come hangerson who move from field to field, a class of persons of dubious desirability, at least in part, lacking permanent home and the concomitant sense of responsibility. Following the more responsible and reliable oil pioneers, less responsible operators speculate on their predecessors' exploration with little cost or sense of responsibility. The continuous, disquieting noises of drilling and the unpleasant odors of fumes and other noxious gases prevalent about oil wells are not conducive to peaceful city residence. More serious is the constant threat of fire and explosion. All these conditions seriously affect the surrounding land, causing it to depreciate in value and desirability as residence property. Insurance rates may rise due to the danger of fire, and living may become wellnigh unbearable to many of the city's permanent families, compelling them either to undergo much unpleasantness or move. Multiply these incidents of production by crowding several wells in each city block, and the problem becomes involved and serious.

West Frankford is a town of approximately 16,000 inhabitants. Oil lies in substantial quantities underneath at least a part of it. The council was faced with the problem of protecting the health, welfare and safety of the townspeople by avoiding the unpleasant incidents of production, at the same time trying to avoid depriving landowners of enjoyment of their valuable mineral rights. The ordinance represents its attempt to solve this question. It sought to legislate, not that drilling and production should be entirely excluded, but that the course of development should proceed within fixed limitations fair to both oil man and householder.

Generally speaking, the ordinance provides that one well, with certain exceptions, shall be drilled in a city block promptly, by the owner or the lessee of the largest amount of acreage within the block; and, to the owners not under contract with the driller, it gives the option to participate in the expense and to receive a proportionate share of the oil produced; or, if such owner does not care to undertake such a venture, it gives him a proportionate royalty in the oil produced.

The ordinance is not as clear or satisfactory as it might be. But a classification having some reasonable basis does not offend merely because it is not made with mathematical nicety or because in practice it results in some inequality. Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 78, 31 S.Ct. 337, 55 L.Ed. 369, Ann.Cas.1912C, 160. Even if the restrictions imposed are considered either doubtful or fairly debatable, courts may not ordinarily substitute their judgment for that of the legislative body. Village of Western Springs v. Bernhagen, 326 Ill. 100, 156 N.E. 753; Minkus v. Pond, 326 Ill. 467, 158 N.E. 121; Reschke v. Winnetka, 363 Ill. 478, 2 N.E.2d 718.

The decisive principle is largely that involved in zoning ordinances, which, unless obviously unreasonable or grossly discriminatory, are upheld. Euclid v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303, 54 A.L.R. 1030; City of Aurora v. Burns, 319 Ill. 84, 149 N.E. 784; Spann v. Dallas, 111 Tex. 350, 235 S.W. 513, 19 A.L.R. 1395; Fitzhugh v. City of Jackson, 132 Miss. 585, 97 So. 190, 33 A.L.R. 287; State ex rel. Austin v. Thomas, 96 W.Va. 628, 123 S.E. 590, 38 A.L.R. 1496; City of Youngstown v. Kahn Brothers Building Co., 112 Ohio St. 654, 148 N.E. 842, 43 A.L.R. 668; State of Washington ex rel. Seattle Title Trust Co. v. Roberge, 278 U.S. 116, 49 S.Ct. 50, 73 L.Ed. 210, 86 L.R.A. 659; Arverne Bay Const. Co. v. Thatcher, 278 N.Y. 222, 15 N.E.2d 587, 117 A.L.R. 1117. Thus, the court said in Euclid v. Ambler Realty Co., supra, 272 U.S. at page 386, 47 S.Ct. at page 118, 71 L.Ed. 303, 54 A.L.R. 1016: "Building zone laws are of modern origin. * * * Such regulations are sustained, under the complex conditions of our day, for reasons analogous to those which justify traffic regulations, which, before the advent of automobiles and rapid transit street railways, would have been condemned as fatally arbitrary and unreasonable. And in this there is no inconsistency, for, while the meaning of constitutional guaranties never varies, the scope of their application must expand or contract to meet the new and different conditions which are constantly coming within the field of their operation." And the Supreme Court of Illinois expressed similar thought in City of Aurora v. Burns, supra, 319 Ill. at pages 93-95, 149 N.E....