City of Juneau v. Badger Co-Operative Oil Co.

• Citation: 279 N.W. 666,227 Wis. 620
• Parties: CITY OF JUNEAU v. BADGER CO-OPERATIVE OIL CO.
• Decision Date: 17 May 1938
• Court: United States State Supreme Court of Wisconsin

227 Wis. 620

279 N.W. 666

CITY OF JUNEAU

v.BADGER CO-OPERATIVE OIL CO.

Supreme Court of Wisconsin.

May 17, 1938.

Appeal from a judgment of the Circuit Court for Dodge County; C. M. Davison, Judge.

Reversed.

Action by the City of Juneau against the Badger Co-Operative Oil Company to enjoin as a nuisance the construction and maintenance of a bulk oil storage plant and filling station, commenced June 24, 1935. From a judgment entered September 7, 1935, granting an injunction as to the bulk oil plant, but denying it as to the filling station, the defendant appeals.

The defendant is a co-operative corporation engaged in the business of selling gasoline and other petroleum products from bulk storage plants and filling stations. It contemplated establishing a plant for carrying on such business in the City of Juneau. Before taking any steps towards the construction of a plant at said city, it ascertained from the mayor of the city that the city had enacted no ordinances or regulations limiting the construction or maintenance of storage tanks or filling stations, except one prohibiting filling stations at street intersections, or requiring any permit therefor from the city. After the defendant procured said information from the mayor of the city it procured from the Industrial Commission approval of plans for the construction and proposed location of its contemplated plant at Juneau and a license for its erection.

After the defendant procured its said information from the mayor of the plaintiff city, the city council, on May 7, 1935, enacted its Ordinance No. 146, reading as follows:

“The Common Council of the City of Juneau do ordain as follows:

“1. No person or corporation shall maintain, erect or operate a gasoline or oil bulk or filling station within the corporate limits of the City of Juneau, without first obtaining a permit from the Common Council of the City.

“This act shall take effect on its passage.” The defendant on learning of the enactment of this ordinance applied for a permit to erect its proposed bulk oil and filling station and its application was on May 17, 1935, denied.

On May 17, 1935, the common council enacted its Ordinance No. 147, which is set out in the margin in connection with the opinion. This ordinance provides a penalty for its violation, requires a permit from the city for the erection and maintenance of any tank or other container for storage of gasoline in excess of fifty gallons, including filling stations, and declares any such tanks or receptacles a nuisance unless such permit for their construction and maintenance should first be procured, and contains other provisions referred to in the opinion.

Prior to May 17, the defendant had leased property of the Chicago & Northwestern Railway Company adjacent to its tracks in the city and leased other property adjacent thereto on which to locate its plant, and incurred obligations for rentals during the terms of the leases aggregating $575. Prior to said date it had paid rentals aggregating $110.50 and paid $65 for the laying of a railway track to its bulk station. After its application was refused, the defendant proceeded to construct a plant at a cost of about $10,000. The storage tanks, three in number, were ordered to be constructed especially for the plant. It does not appear that the tanks or any other material had been ordered or that any work was done upon the tanks prior to May 17. At the time of the trial on July 5, 1935, the plants were completed and petroleum products were stored in the tanks of the bulk oil station, and a car or two of petroleum products were on the track ready for unloading therein. The plant was constructed in all respects in accordance with the regulations of the Industrial Commission.

The court held that the bulk station under Ordinance 147 and because of its location within the business and residential districts of the city was a nuisance and enjoined its maintenance, unless the defendant should procure a permit therefor from the city, but refused to enjoin the maintenance of the defendant's filling station.

William B. Clifford and Eugene A. Clifford, both of Juneau, for appellant.

Paul A. Hemmy, Jr., and George A. Hartman, both of Juneau, for respondent.

FOWLER, Justice.

As appears from the preceding statement of facts, the City of Juneau brought an action to enjoin the defendant from constructing and maintaining a bulk oil and service station for the sale of gasoline and other petroleum products on the ground that the storage tanks and filling stations constituted a nuisance under its Ordinances No. 146 and No. 147. While other points are discussed in the briefs, we find it necessary only to consider whether (1) the ordinances under which the city brought the action are valid, and (2) whether if the ordinances are invalid the city can bring the action.

(1) In determining as to power of the city to enact the ordinances, we will consider the ordinances separately.

Ordinance No. 146 is merely a general prohibition against maintaining and erecting a gasoline or bulk oil or filling station within the city limits, without first obtaining a permit from the common council.

[1] The respondent claims this ordinance is valid under the decision of this court in Lerner v. Delavan, 203 Wis. 32, 233 N.W. 608. While the city under the Lerner Case no doubt has power, under the power conferred by section 62.11, Stats., “to act for the *** safety and welfare of the public, and may carry out its powers by license, regulation [and] suppression” to enact an ordinance for licensing the erection and maintenance of structures for the sale of gasoline and other petroleum products, the question is not whether the city has power to license, but whether the ordinance is a lawful exercise of that power. The Lerner Case, properly considered, refutes rather than upholds the validity of the instant ordinance. The opinion in the Lerner Case starts out with the inquiry whether the ordinance there involved furnished a standard to guide the council in the exercise of its discretion to grant or withhold a permit, or vested the council with a wholly arbitrary power in that respect, and put it in its power to destroy a legitimate business. The opinion after stating, page 35, 233 N.W. 608, the things which from time immemorial have been considered as justifying the regulation and licensing of the junk business, holds, page 36, 233 N.W. 608, that by providing that an applicant for a license shall state his name, the place where the business is to be carried on, and the kind of articles and merchandise to be handled therein, the ordinance required the council to consider the factors which have made the business a proper subject for special legislation-the factors being the type of person who proposed to carry on the business, the character of the goods to be handled, and the location of the business. The instant ordinance indicates no factors which the council must consider. Two factors plainly for consideration in determining whether a license shall be granted for the erection and maintenance of a bulk oil and service station are the structure of the plant and its location. Neither of these nor anything else by the instant ordinance is suggested as a standard by which the council is to be guided.

[2] The case of Milwaukee v. Ruplinger, 155 Wis. 391, 145 N.W. 42, comes nearer to justification of the instant ordinance. It involves the issuing of a license by the mayor of the city. It says nothing about location of the business, character of the applicant, or the articles to be handled. But it does indicate the thing that is to guide the mayor in the granting of the license. He was to be guided by what to him might “seem best for the good order of the city.” Here there is no standard whatever either provided or indicated. The ordinance purports to authorize the exercise of purely arbitrary power, and is therefore void.

[3] License ordinances usually confer upon some officer the power to grant the license, and such ordinances as have been attacked in the courts as invalid have in most cases been of this kind. However, when the legislative body of the city assumes to grant a license itself, the ordinance provision for the granting of it must prescribe the conditions that must be met by the licensee, appropriate to the particular business with which it deals, applicable alike to all applicants. It is said in 2 McQuillan, Municipal Corporations, § 764, that: “If an ordinance, therefore, prescribes no rule for the conduct of a particular business with which it undertakes to deal, applicable alike to all who may bring themselves within its terms, but confers upon the council power to issue a certain class of permits without defining the exercise of the power in that relation but which leaves the power absolute it will be held unreasonable.”

The text cites in its support Richmond v. Model Steam Laundry, 111 Va. 758, 69 S.E. 932;Lynch v. Town v. North View, 73 W.Va. 609, 81 S.E. 833, 52 L.R.A.,N.S., 1038; Monticello v. Bates, 169 Ky. 258, 183 S.W. 555;Boyd v. Board of Councilmen, 117 Ky. 199, 77 S.W. 669, 111 Am.St.Rep. 240;Town of Lagrange v. Overstreet, 141 Ky. 43, 132 S.W. 169, 31 L.R.A.,N.S., 951. To the same effect are Bizzell v. Board of Aldermen, 192 N.C. 348, 135 S.E. 50, 49 A.L.R. 755;Montgomery v. West, 149 Ala. 311, 42 So. 1000, 9 L.R.A.,N.S., 659, 123 Am.St.Rep. 33, 13 Ann.Cas. 651;State v. Tenant, 110 N.C. 609, 14 S.E. 387, 15 L.R.A. 423, 28 Am.St.Rep. 715;Mayor & Council of Hagerstown v. Baltimore & O. R. Co., 107 Md. 178, 68 A. 490, 126 Am.St.Rep. 382;City of Richmond v. Dudley, 129 Ind. 112, 28 N.E. 312, 13 L.R.A. 587, 28 Am. St.Rep. 180;Cicero Lumber Co. v. Town of Cicero, 176 Ill. 9, 51 N.E. 758, 42 L.R.A. 696, 68 Am.St.Rep. 155;City of Newton v. Belger, 143 Mass. 598, 10 N.E. 464;City of Elkhart v. Murray, 165 Ind. 304, 75 N.E. 593, 1 L.R.A.,N.S., 940, 112 Am. St.Rep. 228, 6 Ann.Cas. 748;Bessonies v. City of...