City of San Antonio v. Humble Oil & Refining Co., 8395.

• Decision Date: 19 March 1930
• Docket Number: No. 8395.,8395.
• Citation: 27 S.W.2d 868
• Parties: CITY OF SAN ANTONIO et al. v. HUMBLE OIL & REFINING CO.
• Court: Texas Court of Appeals

Page 868

27 S.W.2d 868

CITY OF SAN ANTONIO et al. v. HUMBLE OIL & REFINING CO.

No. 8395.

Court of Civil Appeals of Texas. San Antonio.

March 19, 1930.

Rehearing Denied May 14, 1930.

Appeal from District Court, Bexar County; W. W. McCrory, Judge.

Suit by the Humble Oil & Refining Company against the City of San Antonio and others. Judgment for plaintiff, and defendants appeal.

Reversed and remanded.

T. D. Cobbs, Jr., and C. K. Quin, both of San Antonio, for appellants.

Wayne Davis and W. S. Anthony, both of San Antonio, and R. E. Seagler, of Houston, for appellee.

SMITH, J.

This appeal involves the validity of the ordinance of the city of San Antonio designed to regulate the location, construction, and operation of drive-in gasoline filling stations. In the judgment here appealed from, the controlling sections of said ordinance were held to be unconstitutional and void. The trial court specifically condemned subdivision (B), § 7, of the Ordinance of January 23, 1919, as amended on September 26, 1927, notwithstanding this court had previously, in the case of City of San Antonio v. Robt. Thompson & Co., 23 S.W.(2d) 796, 799, upheld the validity of said subdivision, as against the very objections sustained below. Said ordinance provides as follows: "(B) Section Seven: Except within the limits where drive-in filling stations are prohibited, as provided in Section Three of this ordinance; any person, firm or corporation desiring to establish, construct or operate a drive-in filling station shall file a petition with the Commission of the City of San Antonio, describing the location where it is desired to establish, construct or operate said station; which petition, plans and all other facts in connection therewith shall be considered by the said Commission; and, after said consideration, if there be no limitation by covenant running with the land, of the use for the purpose herein contemplated, the City Commissioners may, in their discretion, approve the location of the filling station at that place; 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."

We adhere to the decision in the Thompson Case, and hold again that that section of the ordinance "is not void upon its face as a matter of law."

The trial court also struck down subdivision (E), § 10, of said ordinance, which provides: "No permit for the erection or operation of a drive-in filling station shall be granted within three hundred (300) feet of any public school, or of any private school, or of any church, or of any hospital, or of any public playground, or of any public park, or within one hundred and fifty (150) feet of any existing filling station or of the place where a permit shall have been granted; measured from the nearest points of each property."

The court also condemned as unconstitutional subdivision (C), § 8, of said ordinance, which is as follows: "The permit shall not be transferred without permission of the City Commission given after the filing of an application therefor. The permit may be revoked by the City Commission in its discretion, because of the failure of the licensee to comply with the ordinances of the City of San Antonio or the laws of the State of Texas affecting things pertaining to the construction, and operation of the station, its appurtenances, appliances and equipment. The permit shall became void unless actual construction of the station, and the installation of equipment, shall begin within ninety (90) days after the issuance of the permit and prosecuted diligently in good faith to completion, according to the plans and specifications."

The court held that all of said provisions of the ordinance "are unconstitutional and void, being arbitrary and unreasonable," and in contravention of the Fifth and Fourteenth Amendments to the Federal Constitution, and of sections 10, 17, and 19 of article 1 of the State Constitution.

It is conceded, as stated in appellants' brief, that the charter of the city of San Antonio "gives its governing body the right to enact all ordinances not repugnant either to the charter or to the Constitution and laws of the State; to do all acts and make all regulations deemed necessary for the protection and promotion of health and abate all nuisances which may impair or affect the public health or comfort, in such manner as may be deemed expedient; to direct the location of all establishments where noisome, offensive or unwholesome matter, is liable to accumulate; to establish a police force; to regulate and control sidewalks; to regulate construction of buildings, etc.; to establish and maintain a fire department and make as well as enforce all regulations for the prevention, spread and extinguishment of fires as may be deemed expedient; and generally to have full police power. It was in pursuance of said charter powers that the ordinances were enacted."

It was recited in the emergency clause of said ordinance that the same "shall take effect upon its passage because the public safety, comfort and welfare is being menaced by the construction, operation and maintenance of many filling stations, and the cutting of sidewalks, and the increasing of traffic disorders at or near the street intersections."

It is a matter of common knowledge that gasoline filling stations are primarily and chiefly used for the storage and distribution of oils, gases, and other more or less malodorous and highly inflammable or explosive substances; that the operation of such stations naturally and necessarily causes more or less congestion, and particularly confusion, of traffic; that drive-in stations, such as those sought to be regulated by these ordinances, divert public vehicular traffic from the streets to sidewalks, thereby interrupting and creating an additional menace to pedestrian traffic. It is true generally that the modern...