City of Fort Worth v. Gulf Refining Co.

• Decision Date: 22 May 1935
• Docket Number: No. 5981.,5981.
• Citation: 83 S.W.2d 610
• Parties: CITY OF FORT WORTH v. GULF REFINING CO. et al.
• Court: Texas Supreme Court

83 S.W.2d 610

CITY OF FORT WORTH v. GULF REFINING CO. et al.

No. 5981.

Supreme Court of Texas.

May 22, 1935.

Error to Court of Civil Appeals of Tenth Supreme Judicial District.

Suit by the Gulf Refining Company and others against the City of Fort Worth. Judgment for defendant was reversed by the Court of Civil Appeals , but was affirmed by the Commission of Appeals , which reversed the judgment of the Court of Civil Appeals. After rehearing by the Commission of Appeals, the case was withdrawn for determination by the Supreme Court.

Judgment of Court of Civil Appeals reversed and that of District Court affirmed.

R. E. Rouer, J. M. Floyd, and R. B. Young, Jr., all of Fort Worth, for plaintiff in error.

John E. Green, Jr., and David Proctor, both of Houston, and P. O. Settle, S. F. Houtchens, and Houtchens & Houtchens, all of Fort Worth, for defendants in error.

CURETON, Chief Justice.

This case is before us by writ of error. It involves the validity of an ordinance of the plaintiff in error providing an annual charge of $24 for the right to operate each gasoline filling station in the city.

The trial court sustained the ordinance, and denied the injunction prayed for, but the Court of Civil Appeals held it void, reversed the trial court's judgment, and entered a decree in favor of defendants in error. 36 S.W.(2d) 285. The case was first assigned to the Commission of Appeals, which, upon hearing, held the ordinance valid and recommended the reversal of the judgment of the Court of Civil Appeals and the affirmance of that of the trial court. A decree was entered in accordance with this recommendation. 55 S.W.(2d) 792, 794.

On rehearing, the Commission changed its views and held the ordinance void on the ground that it was "purely a revenue measure, having for its purpose the exaction of a tax on the business and occupation as such for revenue, and is therefore void."¹ We then withdrew and heard the case.

After careful consideration, however, we are convinced that the ordinance merely provided for a reasonable license fee, and that it is valid, as held by the Commission of Appeals in its first opinion reported in 55 S. W.(2d) 792. In that opinion, sections 2, 3, and 5 of the ordinance in question were copied and the questions involved stated as follows:

"The contentions made by defendants in error, which were sustained by the Court of Civil Appeals, are these:

"First, that the ordinance in question was designed to apply only to gasoline filling stations where a part of the street or sidewalk was used for the installation of a portion of the equipment of the station.

"Second, that, if the ordinance be so construed as to apply to a gasoline station not using the streets or sidewalks for the installation of its equipment, it is unconstitutional and void, in that the Legislature is without power to authorize a municipality to levy a tax against a property owner for the exercise of his right of egress and ingress to his property.

"Third, that the ordinance in question in effect levies an occupation tax against defendants in error for the operation of gasoline filling stations, and is therefore void because the city is not authorized to levy such a tax, in the absence of any levy of one by the state."

As to the first two questions, the Commission did not change its views, and since we are in accord with that opinion , that the first two objections are without merit, we deem it unnecessary for us to here discuss them.

It is the third question only which we find necessary to here consider at length. Fort Worth is an incorporated city, 44 square miles in area, and has some 200,000 inhabitants, with the usual habiliments of such a city, viz., a charter, a governing body, called a commission, a code of laws or ordinances, a legal department, a police department, a fire department, etc., with officers, including police officers, inspectors of various classes, a fire marshal, inspector of weights and measures, etc., sufficient to efficiently administer the laws which govern its people and secure them in their lives and property. The total cost of the city government in administering its police powers is not shown in the record, nor does the statement of facts disclose the amount expended by the city in supervising or regulating the business of those who are required to obtain licenses, either as a whole or by classes. The city contains 700 gasoline filling stations. We reproduce one of the three photographs of typical stations introduced in evidence. It will be observed that the station necessarily makes exclusive use of a large portion of the streets at the curb lines (from 15 to 200 feet, according to the evidence), which must, of course, be kept clear for the ingress and egress of customers. The stations are all on busy streets in close proximity to residences or business houses. In no other business must vehicles so frequently enter and depart over the sidewalks to and from the store area as they do in the filling station business. The necessary effect of lanes of ingress and egress to and from filling stations is not only to create traffic hazards to both pedestrians and travelers by car at the points involved, but to remove from the use of the public that amount of space as parking area, and to require diligence and surveillance on the part of the proper officers to keep the driveways open for the use of each station and its customers, and to protect the public from the increased traffic hazards. Moreover, the filling station business is a hazardous one, requiring the utmost care in the handling of oils and high explosives. Potential destruction of life and property by blast and fire exists in every station. Not only do we know these facts from the record, but we take judicial knowledge of them as well, and that gasoline filling stations are subject to police control. 30 Texas Jur., p. 165, § 81; Lombardo v. City of Dallas (Tex. Sup.) 73 S.W.(2d) 475, 482; City of San Antonio et al. v. Humble Oil & Refining Co. (Tex. Civ. App.) 27 S.W.(2d) 868; City of San Antonio et al. v. Robert Thompson & Co., Inc. (Tex. Civ. App.) 23 S.W.(2d) 796; City of San Antonio v. Rubin (C. C. A.) 42 F. (2d) 107; Scott et al. v. Champion Building Co. et al. (Tex. Civ. App.) 28 S.W.(2d) 178; Hall v. Mayor and Aldermen of Jersey City et al. (N. J. Sup.) 142 A. 344, 6 N. J. Misc. 558; Harz v. Paxton et al., 97 Fla. 154, 120 So. 3; Interstate Oil Co. v. City of Orange (N. J. Sup.) 165 A. 99, 11 N. J. Misc. 89.

NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE

We shall now examine the record and see what, if anything, the city of Fort Worth has done about this business, and ascertain if the defendants in error have shown that the ordinance in question is either an occupation tax or a revenue measure only, or that as a license fee it is unreasonable. The ordinance was enacted September 1, 1917. The first section makes it unlawful to operate gasoline stations on certain named streets of the city. The second third, and fifth sections are copied in the first opinion of the Commission of Appeals, which we approved , and we deem it unnecessary to here quote them. The second section provides a charge of $24 against each filling station, and section 3 requires those who desire a permit to operate a station to apply to the city tax collector and pay the charge made. Section 5 makes it an offense to operate a filling station without having the same inspected and approved by the fire marshal, and paying the specified fee. Section 4 makes it the duty of all who install gasoline stations to have them inspected and approved by the fire marshal before beginning operations.

On June 29, 1920, the city enacted Ordinance No. 728 relative to filling stations. The first section makes it unlawful to "erect, construct, build, operate or maintain a gasoline filling station" without having "first obtained a permit for such purpose from the Board of Commissioners of the City." The second section defines the term "gasoline filling station." Section 3 provides that in granting or refusing a permit to erect such a station the board shall take into consideration the place where the station is to be established, its proximity to adjoining buildings and residences, the explosive character of the gasoline and oils to be used or sold, the liability of the station to become a nuisance or offense to inhabitants or occupants of adjacent buildings and residences, how long existing filling stations have been in operation, and the consent or acquiescence in the locations by the occupants or owners of adjacent buildings.

Section 4 of the ordinance is the penal section, providing fines for its violations.

However, prior to the adoption of the two ordinances referred to above, the city on November 26, 1915, adopted a comprehensive ordinance (No. 494) relative to the storing and handling of gasoline. This ordinance regulated not only gasoline filling stations but other establishments using gasoline as well. The several sections of the ordinance which apply to filling stations are copied or described below in the margin of this opinion.³

The object and purpose of the ordinance are set forth in section 44, which reads: "Sec. 44. The object, purpose and end of this ordinance is hereby declared to be the prevention of fires and designed to protect life and property and the passage of same is hereby declared to be imperatively necessary for the immediate preservation of the public peace, health and safety of the lives and property of the citizens of the city of Fort Worth." (Italics ours.)

This ordinance regulates in detail the erection of buildings for, and the installation of equipment to be used in the storing and handling of gasoline, all directly related to the safety of the city and its inhabitants. The terms are not only applicable to the original construction and installation of the station, but that they continue to be applicable at all times...