City of San Antonio v. Zogheib

• Decision Date: 11 February 1937
• Docket Number: No. 1658-6777.,1658-6777.
• Citation: 101 S.W.2d 539
• Parties: CITY OF SAN ANTONIO v. ZOGHEIB.
• Court: Texas Supreme Court

Page 539

101 S.W.2d 539

CITY OF SAN ANTONIO v. ZOGHEIB.

No. 1658-6777.

Commission of Appeals of Texas, Section B.

February 11, 1937.

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

Suit by Alexander Zogheib against the City of San Antonio. Judgment for plaintiff was affirmed by the Court of Civil Appeals [70 S.W.(2d) 333], and defendant brings error.

Reversed and rendered.

T. D. Cobbs, Jr., City Atty., and W. C. Davis and Jack H. Davis, Asst. City Attys., all of San Antonio, for plaintiff in error.

W. M. Groce, of San Antonio, for Greek Orthodox Church.

R. F. Spencer and A. J. Lewis, both of San Antonio, for defendant in error.

TAYLOR, Commissioner.

Alexander Zogheib, defendant in error here, applied to the City of San Antonio for a permit to erect on a lot owned by him in the city what is known as a "drive-in" filling station. Application for the permit was refused. Thereupon Zogheib filed suit seeking a mandatory injunction against the city to compel the granting of the permit. The Greek Orthodox Church located in the vicinity of the vacant lot upon which Zogheib desired to erect the filling station intervened, adopting the pleadings of the city and its officers. The trial court, upon findings made by a jury, rendered judgment directing that the mayor and commissioners forthwith issue the permit. Upon appeal, the Eleventh Court of Civil Appeals affirmed the judgment. 70 S.W.(2d) 333.

The Court of Civil Appeals predicated its affirmance upon two grounds: First, that the ordinance under which application was made is void as vesting discretion in the city commission to refuse to grant the permit; and, second, that the finding of the jury that the commission acted arbitrarily in refusing the permit is supported by sufficient evidence. The views of the court are fully elaborated in its opinion.

The provision of the ordinance condemned by the Court of Civil Appeals reads: "The city commissioners may, in their discretion, approve the location of the filling station at that place (the proposed location), or they may, in their discretion, refuse a permit for the location of the filling station at that place, if in their opinion the location, plans and specifications do not conform to this ordinance, or that the safety, the health, the comfort, the convenience, the order, or the good government of the city will be adversely affected by the granting of said permit."

Prior to the rendition of the judgment here under consideration there was a conflict of holdings by the courts of civil appeals upon the first question above stated. The Fourth Court of Civil Appeals in City of San Antonio v. Robert Thompson & Co. et al., 23 S.W.(2d) 796, 799, held that the ordinance fairly administered "is a valid exercise of the police powers delegated to the city." Subsequently in City of San Antonio et al. v. Humble Oil & Refining Co., 27 S.W.(2d) 868, the same court reiterated its holding that the ordinance is not unconstitutional and void.

The Eleventh Court of Civil Appeals by its holding of law in this case that the ordinance involved in the two cases referred to is unconstitutional and void for the reason stated in its opinion presents a direct conflict of holdings between that court and the Fourth Court of Civil Appeals. It was upon this conflict that the writ was granted.

In City of Fort Worth v. Gulf Refining Company (Tex.Com.App.) 55 S.W.(2d) 792, 794, the court had before it a tax ordinance levying an annual license charge against the operators of "drive-in" filling stations such as Zogheib is seeking permission to construct. In that case the Tenth Court of Civil Appeals had held the ordinance void, Gulf Refining Co. v. City of Fort Worth, 36 S.W.(2d) 285, upon the ground that the city had no authority to levy such a tax in the absence of the state's having levied an occupation tax. Writ of error was granted and the case assigned to the Commission of Appeals. Upon original hearing the Commission held the ordinance valid. 55 S.W.(2d) 792. In reaching this conclusion two questions were discussed, to wit, whether the ordinance applied to both curb and "drive-in" stations, and whether the ordinance was invalid as authorizing an unconstitutional limitation upon the owner's right of ingress and egress to his property. The two objections to the holdings were held to be without merit. The Commission, in reaching its conclusion that the ordinance was valid, and that the business of the filling station was such as "to render it subject to reasonable regulation under the general police power accorded to cities of this state," says: "It is quite true that the operation of a gasoline filling station is a necessary and lawful business. The nature of the business and the method of its operation is such, however, as to bring its clearly within the general police power of a city to regulate. * * * Again, the operation of gasoline filling stations reduces parking space upon the streets and otherwise tends to cause traffic congestion. Of necessity the city must by proper regulation keep open traffic lanes in order that drive-in stations may operate. The existence of these conditions furnishes a substantial basis for the exercise of the city's general police power. Standard Oil Co. v. City of Marysville, 279 U.S. 582, 49 S.Ct. 430, 73 L.Ed. 856; Pierce Oil Corporation v. Hope, 248 U.S. 498, 39 S.Ct. 172, 63 L.Ed. 381; Powell v. Pennsylvania, 127 U.S. 678, 8 S.Ct. 992, 1257, 32 L.Ed. 253; McKelley v. City of Murfreesboro, 162 Tenn. 304, 36 S.W.(2d) 99; Cayce v. City of Hopkinsville, 217 Ky. 135, 289 S.W. 223," citing among other cases City of San Antonio v. Robert Thompson & Co. and City of San Antonio v. Humble Oil & Refining Co., supra. The case of City of San Antonio v. Rubin [C.C.A.] 42 F.(2d) 107, was cited also in support of the quoted statement.

The opinion of the Commission of Appeals so holding was adopted by this court upon original hearing. Upon rehearing the Commission changed its view with respect to the third question in the case relating to the authority of the city to levy the tax in question in the absence of the levy of a similar tax by the state, and another opinion was substituted holding the ordinance void. This court upon consideration of the substituted opinion failed to adopt it and withdrew and heard the case.

Chief Justice Cureton, speaking for the court upon this rehearing, 125 Tex. 512, 83 S.W.(2d) 610, 611, says: "As to the first two questions, the Commission did not change its views, and since we are in accord with that opinion (55 S.W.(2d) 792), that the first two objections are without merit, we deem it unnecessary for us to here discuss them."

In the course of the opinion Chief Justice Cureton further says: "The necessary effect of lanes of ingress and egress to and from filling stations is not only to create traffic hazards * * * but * * * to require * * * 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 * * * we take judicial knowledge * * * that gasoline filling stations are subject to police control," citing among other cases both the Thompson and Humble Oil & Refining Company Cases, supra, and also City of San Antonio v. Rubin, supra.

Magnolia Petroleum Company v. Long (Tex.Com.App.) 86 S.W.(2d) 450, 454, was a suit for damages for personal injuries sustained by Long while crossing a "drive-in" way over a sidewalk maintained by the company as an approach to its filling station. Judge Ryan, speaking for the Commission says: "The city of San Antonio has an ordinance passed and approved on January 23, 1919, entitled, `An ordinance prohibiting the construction, operation and maintenance of drive-in gasoline filling stations within the first fire limits or fire proof district A, of the city, providing a penalty and declaring an emergency.' This ordinance was amended on September 26, 1927, by adding thereto certain sections governing the construction and operation of such stations outside the prohibited limits. These ordinances came under attack in City of San Antonio v. Robert Thompson & Co. (Tex.Civ.App.) 23 S.W.(2d) 796; City of San Antonio v. Humble Oil & Refining Co. (Tex.Civ.App.) 27 S.W.(2d) 868, 869, and City of San Antonio v. Rubin (C.C.A.) 42 F.(2d) 107, and were upheld; those cases are cited with approval by Chief Justice Cureton in City of Fort Worth v. Gulf Refining Co. 83 S.W. (2d) 610, 612."

The case of City of San Antonio v. Rubin, supra, involved the same ordinance as is here in question. It was attacked as unconstitutional and void on the ground that it is void as vesting discretion in the city commission to refuse to grant the permit. This is the first ground upon which the Court of Civil Appeals held the ordinance...