City of Richmond v. Dudley

• Decision Date: 17 September 1891
• Citation: 28 N.E. 312,129 Ind. 112
• Parties: City of Richmond v. Dudley.
• Court: Indiana Supreme Court

129 Ind. 112

28 N.E. 312

City of Richmond

v.Dudley.

Supreme Court of Indiana.

Sept. 17, 1891.

Appeal from circuit court, Wayne county; D. W. Comstock, Judge.

Action by the city of Richmond against Charles E. Dudley for violation of a city ordinance. Judgment for defendant. Plaintiff appeals. Affirmed.

A. C. Lindemuth and Fox & Robbins, for appellant. Burchenal & Rupe, for appellee.

MILLER, J.

This was an action brought before the mayor of the city of Richmond against the appellee for the violation of a city ordinance regulating the storing and keeping of petroleum and other inflammable oils within the corporate limits. Judgment was rendered against the appellee before the mayor, and the cause appealed to the Wayne circuit court. In that court demurrers were sustained to the several paragraphs of complaint, and judgment on the demurrer rendered against the appellant. The only question before us is as to the validity of the ordinance. The sections of the ordinance to which the objections are made are as follows: “Section 1. Be it ordained by the common council of the city of Richmond that it shall be unlawful for any person to keep or store any petroleum, naphtha, benzine, gasoline, coal oil, or any inflammable or explosive oils, within the corporate limits of the city of Richmond, in quantities greater than five barrels at a time, except as hereinafter provided. Sec. 2. Any person desiring to keep or store any of the oils or products mentioned in the first section of this ordinance within the corporate limits of the city, in quantities greater than five barrels at a time, shall present a written petition to the common council, at a regular meeting thereof, setting forth an exact description of the location, premises, and buildings on and in which it is proposed to keep and store such oils and products, and the manner and kind of vessels in which the same are to be kept, the kind of oils, and the purpose for which they are to be kept. Sec. 3. Upon the presentation of the petition, as provided in section two of this ordinance, the common council may, if the location and buildings described in said petition, and the purpose and keeping of such oils and products, are deemed suitable and proper, and that the person presenting such petition is a proper person, grant such permission to the person presenting such petition, to keep and store such oils and products on the premises, and in the manner set forth in the petition, or in the manner which the council may direct, in quantities greater than five barrels at a time, which permission so granted may be revoked at any time at the option of the council; and the rights and privileges to be exercised by the person receiving such permission shall not be assignable or transferable by the person receiving the same to any other person directly or indirectly, and any attempt so to do shall be deemed a revocation of all rights and privileges on the part of the person making the attempt.” Two objections are urged against the validity of this ordinance: (1) That it gives to the council the power to arbitrarily discriminate between citizens by giving the permission to some and withholding it from others under similar conditions; and because it specifies no terms or conditions to be observed in the keeping or storing of such oils which could be complied with by all citizens alike. (2) That the ordinance is unreasonable, and is an undue restraint upon lawful trade and business.

The subject covered by the ordinance in question is clearly within the police power conferred by the charter upon the muncipality. Section 3155, Rev. St. 1881, provides that the common council of a city shall have power to make by-laws and ordinances not inconsistent with the laws of the state, and necessary to carry out the objects of the corporation. The danger to be apprehended from the storing of large quantities of...