Cities Service Oil Company v. The City of Marysville

• Decision Date: 10 January 1925
• Docket Number: 25,619
• Citation: 117 Kan. 514,231 P. 1031
• Parties: CITIES SERVICE OIL COMPANY, Appellant, v. THE CITY OF MARYSVILLE et al., Appellees
• Court: Kansas Supreme Court

231 P. 1031

117 Kan. 514

CITIES SERVICE OIL COMPANY, Appellant, v. THE CITY OF MARYSVILLE et al., Appellees

No. 25,619

Supreme Court of Kansas

January 10, 1925

Decided January, 1925

Appeal from Marshall district court; FRED R. SMITH, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

CITIES--A City Ordinance Forbidding Storage of Kerosene and Gasoline (Except in Specified Small Quantities) Unless Buried in Tanks at Least Three Feet Underground is Valid. Under statutory power to enact all such ordinances as may be expedient for maintaining the welfare of the city, the council may regulate the manner in which kerosene and gasoline may be stored within the corporate boundaries. An ordinance forbidding the storage of such fluids (except in small quantities) otherwise than in tanks buried at least three feet underground is not invalid on its face, and one who attacks it as unreasonable as applied to a particular state of facts has the burden of overcoming strong presumptions in favor of its validity; and it is held that in the present case such presumptions were not overcome.

T. F Garver, of Topeka, and W. W. Redmond, of Marysville, for the appellant.

Edgar C. Bennett, of Marysville, for the appellees.

John S. Dean, and Harry W. Colmery, both of Topeka, for the League of Kansas Municipalities, as amici curiae.

Mason J. Dawson, J., dissenting.

OPINION

MASON, J.:

On October 8, 1923, the mayor and council of Marysville, a city of the second class, passed an ordinance forbidding gasoline, kerosene or other inflammable or combustible liquid to be kept or stored within the corporate boundaries otherwise than in tanks, barrels or other containers buried at least three feet underground, exceptions being made in the case of crude oil, distillate or fuel oil in containers of 500 gallons or less, and of gasoline, kerosene or naphtha in quantities of less than 10 gallons. The Cities Service Oil Company brought this action for an injunction against the enforcement of the ordinance with respect to two steel tanks having a capacity of about 10,000 gallons each, owned by it and used for the storage of gasoline and kerosene, upon the ground that it is unreasonable and violative of the fourteenth amendment to the federal constitution.

The fact that in the absence of any ordinance on the subject a court cannot rightfully enjoin the maintenance of tanks similar in construction, use and location to those of the plaintiff (The State, ex rel., v. Cozad, 113 Kan. 200 213 P. 654) does not decide or vitally affect the present question. If a city in the exercise of its power to regulate certain matters could effectively forbid no act except those a court could enjoin without the existence of such regulation, there would be little purpose in passing regulatory ordinances.

If the legislature had expressly authorized the adoption of this specific ordinance it would have practically the standing of a statute and could be held void only in case it violated some constitutional guaranty. The authority for its enactment, however, is to be found in the grant of power to the council "to enact . . . any and all ordinances not repugnant to the constitution and laws of this state, and such as it shall deem expedient for the good government of the city" (R. S. 14-401), and "to enact and make all such ordinances, by-laws, rules and regulations not inconsistent with the laws of the state as may be expedient for maintaining the peace, good government and welfare of the city and its trade and commerce" (R. S. 14-439), and perhaps also in the section authorizing the council to "regulate the construction of and order of suppression of . . . any apparatus used in any . . . business which may be dangerous in causing or promoting fires." (R. S. 14-421.) The ordinance is therefore open to attack not only upon the ground of unconstitutionality, but also upon that of being unreasonable in the circumstances in which its enforcement is undertaken. (28 Cyc. 268-70.) Even in this situation, however, all presumptions are in favor of validity. The court does not substitute its judgment upon a question of policy for that of the governing body of the city, but denies effect to the ordinance only where its unreasonableness is so manifest as to show bad faith or such arbitrary conduct as to amount to practically the same thing. (See 19 R. C. L. 807-10.)

The ordinance is not invalid on its face. Regulating the storage of kerosene and gasoline in the interest of public safety is clearly an exercise of the police power. (Notes, Ann. Cas. 1918 E 145; 41 L.R.A. n. s. 458.) A requirement that tanks used for that purpose shall be placed underground plainly has substantial relation to the end sought, and is not to be held unavailable merely because a court may think some other plan more economical or effective. An ordinance forbidding the use of light-weight plumbing supplies has been upheld as a public-health regulation, in spite of strong medical evidence that there is no relation between the two matters. (Kleinhein v. Bentley, 98 Kan. 431, 157 P. 1190.)

The plaintiff's tanks and those of other oil companies in the same block are situated near a sidetrack of the Union Pacific railroad. It was shown that five residences were within distances from the plaintiff's tanks varying from about 100 feet to about 150, and that it was reasonably expected that other residences would be shortly built in the neighborhood.

The tanks in controversy were erected in 1907 and were purchased by the plaintiff in 1919. Other tanks of other owners have been placed upon the same block, by permission of the city council, 1910 and 1921. The permission to place or maintain these tanks, whether given expressly or by implication, does not disable the city from afterwards requiring their removal. No unfair or oppressive treatment of the plaintiff is shown, such as in Dobbins v. Los Angeles, 195 U.S. 223, 49 L.Ed. 169, 25 S.Ct. 18, resulted in an injunction against the enforcement of an ordinance which forbade the erection of a gas works on ground where one had already been begun in reliance upon another ordinance passed only two months earlier, there having been no change of conditions affecting the matter. The question whether the existing or anticipated conditions and surroundings justified a change in restrictions concerning the storage of oil and gasoline in the vicinity of the plaintiff's plant was a matter for the determination of the city council, and no bad faith or its equivalent was established.

The ordinance does not prohibit the use of the plaintiff's lot for storing oil and gasoline; it regulates the manner of storage by requiring that the tanks shall be placed underground. It leaves nothing to the discretion or choice of the council. It therefore is not within the rule that even a legislature may not require a permit from some officer, who may refuse or grant it at his pleasure, for the doing of an otherwise lawful act. (Smith v. Hosford, 106 Kan 363, 187 P. 685; Julian v. Oil Co., 112 Kan. 671, 212 P. 884.) Even where an ordinance in terms merely says that a certain thing shall not be done without a permit from a designated officer, it is often interpreted as meaning that...