City of Marysville v. Standard Oil Co.

• Decision Date: 28 May 1928
• Docket Number: No. 7868.,7868.
• Citation: 27 F.2d 478
• Parties: CITY OF MARYSVILLE et al. v. STANDARD OIL CO. et al.
• Court: U.S. Court of Appeals — Eighth Circuit

27 F.2d 478 (1928)

CITY OF MARYSVILLE et al. v. STANDARD OIL CO. et al.^*

No. 7868.

Circuit Court of Appeals, Eighth Circuit.

May 28, 1928.

Edgar C. Bennett, of Marysville, Kan., Harry W. Colmery, of Topeka, Kan., for appellants.

Earle W. Evans, of Wichita, Kan. (C. W. Martyn, of Chicago, Ill., R. R. Vermilion, Joseph G. Carey, W. F. Lilleston, and Henry V. Gott, all of Wichita, Kan., of counsel), for appellee Standard Oil Co.

Thomas F. Doran, of Topeka, Kan. (Roy T. Osborn, of New York City, and Clayton E. Kline, of Topeka, Kan., on the brief), for appellee Sinclair Refining Co.

Before STONE and VAN VALKENBURGH, Circuit Judges, and PHILLIPS, District Judge.

VAN VALKENBURGH, Circuit Judge.

On the 8th day of October, 1923, the mayor and council of the city of Marysville, Kan., passed and approved Ordinance No. 350 in the words and figures following:

"An ordinance regulating the storage of gasoline, kerosene, naphtha, distillate, fuel oil, crude oil, and other inflammable and combustible liquids within the city of Marysville, Kansas, and repealing Ordinance No. 333 and section 4 of Ordinance No. 237.

"Be it ordained by the mayor and council of the city of Marysville, Kansas:

"Section 1. It shall be unlawful for any person, firm or corporation to keep or store within the corporate limits of the city of Marysville, Kansas, any gasoline, kerosene, distillate, fuel oil, crude oil, or other inflammable or combustible liquid otherwise than in tanks, barrels or other containers which shall be buried at least three feet under ground.

"Sec. 2. Any person, firm or corporation who shall maintain any underground tank yard shall keep same fenced securely and shall keep at least six inches of gravel, chat, cinders or other large aggregate over the said area so occupied by tanks, and shall keep and maintain such tank yard in a clean, orderly manner, free from rubbish, weeds, trash or other inflammable substances.

"Sec. 3. This ordinance shall in no case apply to the storage of any crude oil, distillate or fuel oil in containers of a capacity of 500 gallons or less, but only one such 500 gallon container shall be permitted on each premises, nor, shall it apply to the storage of gasoline, kerosene or naphtha in quantities of less than 10 gallons, all of which commodities in the quantities mentioned and permitted by this section shall be kept and stored in the manner as now provided by existing ordinance.

"Sec. 4. Ordinance No. 333 and section 4 of Ordinance No. 237 are hereby expressly repealed.

"Sec. 5. Any person, firm or corporation violating any of the provisions of this ordinance shall upon conviction be adjudged to pay a fine of $25.00 for each such violation, and each day that any of the commodities herein referred to are stored in violation of the terms hereof shall constitute a separate and distinct offense hereunder.

"Sec. 6. Any person, firm or corporation now storing any of the commodities herein mentioned in a manner otherwise than that herein provided shall be given until the 10th day of November, 1923, in which to bring themselves within the provisions hereof and comply herewith.

"Sec. 7. This ordinance shall be in force and take effect from and after its publication in the official city paper."

Ordinance No. 237, therein referred to, passed July 13, 1914, contained a provision that "isolated tanks, constructed for the storage of gasoline, fuel oil and motor spirits, in quantities of 5,000 gallons or more, may be constructed above ground at such locations as the mayor and city council may determine." Appellees filed bills of complaint in the District Court for the District of Kansas charging that the provisions of said Ordinance No. 350 requiring them to bury their tanks underground are arbitrary, unreasonable and impossible of performance "in that said tanks cannot be buried and that the enforcement of said ordinance will result in the absolute confiscation of plaintiff's property, in an unlawful and unjust discrimination against plaintiff, and in a denial to plaintiff of the equal protection of the laws and in the deprivation of its property without due process of law, in violation of the Fourteenth Amendment to the Constitution of the United States, above quoted, and of the Constitution and laws of the state of Kansas," and praying that said ordinance be declared arbitrary, unreasonable, discriminatory and void for the reasons stated. Among other things, it was alleged that the ordinance was ultra vires the powers of the mayor and councilmen to pass because of lack of antecedent legislative authority conferred; that said tanks were constructed by permit procured from the mayor and council under the provisions of said Ordinance No. 237, and had been in operation for a long period without accident or injury to persons or property; that the business connected with the use thereof had been and was being carried on in a sanitary, safe, and legitimate way, and was equipped, maintained, and operated with the most modern, efficient, and best safety appliances and devices known; that it is more dangerous from the standpoint of public safety to operate oil tanks of this kind underground than to maintain and operate them above ground in the manner in which they are now maintained and operated; that the storage of such products in tanks operated above ground adjacent to railroads and railroad switches within cities and towns, including the city of Marysville, is a safe, useful, convenient and necessary incident and practice of the business required by modern methods of commerce, transportation and habits of life. The permission in the ordinance that smaller quantities of petroleum products may be stored above ground is attacked as discriminatory and as denying to appellees the equal protection of the law.

The cases were consolidated for trial and referred to a master, who made voluminous findings of fact and recommended a decree declaring said Ordinance No. 350 to be arbitrary, unreasonable, discriminatory, and confiscatory of appellees' property in violation of appellees' rights, and that appellants be perpetually enjoined and restrained from enforcing or attempting to enforce said ordinance. All exceptions to the master's report, except that of appellees to a portion of finding No. 81, were overruled, and a decree was entered conformably to the recommendation of the master.

This controversy may be decided almost entirely upon the facts found by the master. The mayor and council of the city of Marysville were led to pass and approve the ordinance in question by the following facts thus stated by the master:

"The record shows fires at five storage stations in Kansas; two in 1919, two in 1922, and one in December 1923 (the latter about two months after the ordinance was passed). * * * At Hays, Kan., in November, 1919, tanks of the Standard Oil Company containing gasoline and kerosene burned and exploded. One end of the gasoline tank was blown out and against an elevator 82 feet away, which it burned completely; whereas the main part of the tank was hurled in the opposite direction a distance of 475 feet, breaking off an 8-inch spruce tree en route and lodging against and burning up a dwelling house where it struck, and in the course of its travel killing 9 people, wounding at least 26 more, and burning several other houses.

"Fires at storage stations have occurred which so heated up the contents in the storage tank as to burst open the seams thereof and let gasoline run out and along the ground, burning in a flowing flame as it ran, igniting other property 30 to 60 feet away, and at other fires the flames have been known to shoot up into the air 50 to 100 feet high and be swept by the wind and set fire to and burn up property 60 to 75 feet distant therefrom; that the danger of fire to warehouses adjacent to storage tanks is great owing to the fact that there are kept and stored therein oils, greases, and petroleum products, which are highly combustible, easily ignited, and difficult to extinguish, and many instances have occurred where warehouses and storage tanks have become ignited by back-fires from automobile trucks, sparks from the gasoline engines used to pump the products to and from the storage tanks, sparks from static electricity created by the abrasion of metallic bodies or otherwise, in which cases tank wagons and smaller barrels and containers of petroleum products in the warehouses have exploded. Such fires produce extreme heat around the storage tanks, have broken the connections, or melted off the valves, thus permitting the gasoline to flow out of the tanks and burn, adding to the fire and intensity of the heat, and in those cases, should a safety device fail to operate, or should more gas pressure be formed than the venting devices could relieve, an explosion would occur."

Other destructive fires were at McCracken, Greenleaf, and Ft. Scott, all in the state of Kansas. The recital of the master and his conclusions with respect to the danger from fires in spite of all possible precautions and the employment of safety devices is fully supported by the evidence and by court decisions dealing with such questions. In Whittemore v. Baxter Laundry Co., 181 Mich. 564, 148 N. W. 437, 52 L. R. A. (N. S.) 930, Ann. Cas. 1916C, 818, the court said:

"We may also concede that in the instant case every precaution that human ingenuity has conceived has been made use of in the construction of the tanks, as testified to by defendants' experts; considering, however, the dangerous character of the substance and its power as an explosive, of which in this age * * * we can well take judicial notice, and also considering human fallibility that accidents in the operation of the most perfect mechanism will occur, and all that needs to change what is a harmless agency, when properly protected, to a most dangerous explosive, is a careless person, can it be said that to have 20,000 gallons of such an...