City of San Antonio v. Robert Thompson & Co.

• Decision Date: 13 November 1929
• Docket Number: (No. 8317.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 23 S.W.2d 796
• Parties: CITY OF SAN ANTONIO et al. v. ROBERT THOMPSON & CO., Inc.
• Court: Texas Court of Appeals

Page 796

23 S.W.2d 796

CITY OF SAN ANTONIO et al. v. ROBERT THOMPSON & CO., Inc.

(No. 8317.)^*

Court of Civil Appeals of Texas. San Antonio.

November 13, 1929.

Rehearing Denied January 22, 1930.

Appeal from District Court, Bexar County; Robt. W. B. Terrell, Judge.

Suit by Robert Thompson & Company, Inc., against the City of San Antonio and others. Judgment for plaintiff, and defendants appeal. Reversed and rendered.

Joseph Ryan, of Austin, and T. D. Cobbs, Jr., of San Antonio, for appellants.

Douglas, Carter & Black, of San Antonio, for appellee.

SMITH, J.

The ordinances of the city of San Antonio prohibit the operation of what is commonly known, and therein described, as "drive-in gasoline filling stations," within the "first fire limits" of the city, also therein described. Such stations are defined in the ordinance to be "a station the construction, arrangement or location of which is such that the general public or customers of such station are invited or required, in order to procure gasoline, oil, naphtha, grease, or other auto supplies, to drive from a street or public highway for vehicles upon or across a public sidewalk or sidewalks in entering such station and to drive upon or across a public sidewalk or sidewalks in emerging from and leaving said station in order to again reach a street or public highway." It is further provided by ordinance that such stations may be constructed and operated anywhere within the city limits outside of said first fire zone, upon permits therefor to be issued by the city commission, but that the issuance of such permits shall be subject to the following regulations: "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."

Robert Thompson & Co., a corporation, made application, in accordance with the foregoing regulation, for a permit to construct, for operation, a drive-in filling station upon a lot owned by it and located at the corner of McCullough and Mistletoe avenues, which is without the first, or prohibited, fire zone. It is conceded that the ordinances in question were duly enacted and in effect, and that Thompson & Co's application was, in form, substance, and effect, in compliance with the procedure prescribed therefor in the above-quoted ordinance. But the board of city commissioners, upon consideration, refused to issue the permit, whereupon the applicant brought this action for a mandatory injunction requiring them to issue it. The injunction was issued as prayed for, and the city and its governing board have appealed.

In its pleadings appellee attacked the action of the board upon the grounds, first, that the city authorities acted willfully, arbitrarily, capriciously, and without reason, in refusing to issue the permit, and, second, that the ordinance is void, because it vests the commission with arbitrary and unrestrained power to wrongfully, arbitrarily, capriciously, and unreasonably deprive appellee of the lawful use of its property. The trial court heard evidence upon the first contention, and found against appellee thereon, but concluded that the ordinance was void on its face as a matter of law, in so far as it gave the governing board the power complained of.

The sole question presented in this appeal, therefore, is that of whether or not a city may, by ordinance, lawfully vest in its board of commissioners the discretionary power to refuse a permit for the construction and operation of a drive-in filling station at any particular place within the city limits, if, within the opinion of the board, "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 such permit."

It is concisely, and we believe correctly, said by counsel 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 side-walks; 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."

The specific finding which controlled the trial court's decision is: "The City ordinance in question * * * is void and invalid, as a matter of law, in so far as it bestows unrestrained discretion on the Commission to grant or refuse permits for gasoline filling stations, in that it is indefinite, uncertain, and provides no certain legal criterion upon which the City may act, and vests the City authorities with arbitrary powers, and because it permits, wrongfully, the arbitrary, capricious and unreasonable depriving of the lawful use of property. * * *"

It must be conceded that the business of operating a gasoline filling station is a lawful one, and necessary in these times, and therefore it does not constitute a nuisance per se. Any legislative act which declared it a nuisance per se, or had that ultimate effect, would be void upon its face.

But it must be further conceded that, because of its nature, the business is such as to render it subject to reasonable regulation under the general police powers accorded to cities. Pierce Oil Corp. v. City of Hope, 248 U. S. 498, 39 S. Ct. 172, 63 L. Ed. 381; Standard Oil Co. v. City of Maryville, 279 U. S. 582, 49 S....