City of Fort Worth v. Gulf Refining Co.

• Citation: 55 S.W.2d 792
• Decision Date: 22 December 1932
• Docket Number: No. 1383-5981.,1383-5981.
• Parties: CITY OF FORT WORTH v. GULF REFINING CO. et al.
• Court: Supreme Court of Texas

Page 792

55 S.W.2d 792

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

No. 1383-5981.

Commission of Appeals of Texas, Section B.

December 22, 1932.

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

Suit by the Gulf Refining Company and others against the City of Forth Worth. Judgment for defendant was reversed by the Court of Civil Appeals [36 S.W.(2d) 285], and defendant brings error.

Judgment of the Court of Civil Appeals reversed, and that of the trial 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, David W. Stephens, S. F. Houtchens, and Houtchens & Houtchens, all of Fort Worth, for defendants in error.

LEDDY, J.

Defendants in error, the owners and operators of a large number of drive-in gasoline filling stations in the city of Fort Worth, filed this suit in the district court to enjoin the plaintiff in error, the city of Forth Worth, from enforcing the provisions of an ordinance which attempted to levy an annual license charge of $24 against each operator of such gasoline stations.

A trial before the court without a jury resulted in a judgment denying defendants in error the relief prayed for. Upon appeal, the Court of Civil Appeals reversed the judgment of the trial court and rendered judgment in favor of defendants in error. 36 S. W.(2d) 285, 286.

The portions of the ordinance pertinent to this controversy are sections 2, 3, and 5. They read as follows:

"Section 2. Be it further ordained: That an annual charge of Twenty-four ($24.00) Dollars is here made against each and every gasoline station installed and making use of any street or sidewalk, or any portion thereof within the City of Fort Worth from and after the passage and publication of this ordinance.

"Section 3. It shall be the duty of all persons, firms or corporations desiring a permit to establish and use a gasoline station on any street or sidewalk, or any part thereof or where any part of any sidewalk is used for the purpose of ingress or egress in connection with such gasoline station within the City of Fort Worth, to apply to the Tax Collector of the City of Forth Worth therefor, and to pay the annual charge provided for herein to said Tax Collector, and upon said application being made, and the payment of the charge provided for herein, it shall be the duty of the City Tax Collector to issue said permit."

"Section 5. Any and all persons making use of any of the streets and sidewalks, or any portion thereof, within the corporate limits of the City of Fort Worth as a gasoline station, as provided for herein, from and after the passage of this ordinance without first paying the charges provided for herein, and having same inspected and approved by the City Fire Marshal, shall be deemed guilty of obstructing said street or sidewalk, and upon conviction thereof shall be fined in any sum not exceeding Fifty Dollars ($50.00), and each day of such obstruction shall constitute a separate offense."

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.

In construing the ordinance not to apply to the type of filling stations operated by defendants in error, the Court of Civil Appeals in its opinion says: "From a careful reading of the ordinance in question it seems to apply only to gasoline filling stations that are constructed where a portion of the sidewalk or street is used in installing same. * * * The import of said ordinance, as a whole, indicates that appellee was attempting to pass an ordinance whereby it would charge private individuals for conducting gasoline filling stations where a portion of the street or sidewalk was used for its installation."

We think the provisions of the ordinance disclose that it was designed to apply to both curb and drive-in gasoline filling stations. If the ordinance limited the requirement for the payment of the license fee to those "persons, firms, or corporations desiring a permit to establish and use a gasoline station on any street or sidewalk or part thereof," as is provided in the first part of Section 3, then the construction given by the Court of Civil Appeals would no doubt be a correct one, as such language seems appropriate to describe only what is commonly called a curb gasoline station. But the ordinance does not so limit the license fee exacted. After describing a curb station, it requires the payment of a license fee for another and different type of station not covered by the above description. It is: "Where any part of any sidewalk is used for the purpose of ingress and egress in connection with such gasoline station within the City of Fort Worth." This language was manifestly designed to and does cover a drive-in gasoline station, where no part of the street or sidewalk is used for the purpose of installing equipment. In other words, there were two types of gasoline filling stations operated in the city of Fort Worth, and the ordinance was so drawn as to cover both types of stations. The provisions of section 2 indicate a purpose to levy the license fee against operators of all gasoline stations using any street or sidewalk and the character of use contemplated is specially defined in section 3 as being the use of the sidewalk for drive-in purposes.

The construction adopted by the Court of Civil Appeals renders meaningless the latter part of section 3. The first part quoted was clearly sufficient to describe curb stations, and, if they were...