City of San Antonio v. Rubin, 5721.

• Decision Date: 25 June 1930
• Docket Number: No. 5721.,5721.
• Citation: 42 F.2d 107
• Parties: CITY OF SAN ANTONIO et al. v. RUBIN et al.
• Court: U.S. Court of Appeals — Fifth Circuit

42 F.2d 107 (1930)

CITY OF SAN ANTONIO et al. v. RUBIN et al.

No. 5721.

Circuit Court of Appeals, Fifth Circuit.

June 25, 1930.

T. D. Cobbs, Jr., C. K. Quin, and Joseph Ryan, City Atty., all of San Antonio, Tex., for appellants.

R. J. McMillan, of San Antonio, Tex. (J. C. Hall, of Edinburg, Tex. and Terrell, Davis, McMillan & Hall, of San Antonio, Tex., on the brief), for appellees.

Before WALKER and BRYAN, Circuit Judges, and DAWKINS, District Judge.

BRYAN, Circuit Judge.

The city of San Antonio has an ordinance which prohibits the construction or operation of "drive-in" filling stations for the sale of gasoline, oil, and other automobile supplies, absolutely within the first or inner fire limits, and without a permit outside or beyond those limits. The city commissioners, five in number, are required to consider an application for a permit which in their discretion they may grant or refuse. They are authorized to refuse a permit if in their opinion "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." A "drive-in" filling station is defined to be one which automobiles can enter or depart from only by being driven across the sidewalk. In other words, it is inside the property line with the sidewalk between it and the street pavement. After that ordinance was adopted, appellees applied to the city commissioners for a permit to construct and maintain a drive-in filling station on a corner lot which they owned, but the commissioners denied their application. Thereupon appellees brought this suit to enjoin the city and its officials from preventing them from constructing a filling station on their lot, on the grounds that the ordinance was unconstitutional, and that the action of the city commissioners in denying their application was arbitrary and discriminatory. The district judge did not pass upon the validity of the ordinance, but held with appellees on the second ground, and granted a perpetual injunction as prayed for.

The evidence for both sides was in the form of affidavits. Appellees, their attorney, and a real estate agent who represented them in leasing their lot for a filling station, gave it as their opinion that filling stations of the same kind had been erected and were being operated under city permits at locations where traffic conditions and use of property for residential as distinguished from business purposes were similar to those that existed in the locality of appellees' lot. Appellees and their attorney also stated that Wright, commissioner of fire and police, admitted that he had refused to recommend approval of the petition for the permit, for the reason that some of the property owners in the neighborhood had protested against granting it. In that statement they were contradicted by Wright, and there is no evidence that the other four commissioners were influenced by objections or protests of property owners. Wright also in his affidavit pointed out in detail substantial differences in conditions that existed between appellees' lot and lots in other localities as to traffic conditions...