City of Winchester v. Glover, 4646

Decision Date26 April 1957
Docket NumberNo. 4646,4646
Citation199 Va. 70,97 S.E.2d 661
PartiesCITY OF WINCHESTER, ETC. ET AL, ETC. v. JOHN D. GLOVER. Record
CourtVirginia Supreme Court

J. Randolph Larrick, for the appellant.

Henry H. Whiting (J. Sloan Kuykendall and Thomas V. Monahan, on brief), for the appellee.

JUDGE: WHITTLE

WHITTLE, J., delivered the opinion of the court.

Glover was denied a permit to erect a gasoline service station by the City of Winchester; whereupon he filed a bill in chancery attacking the constitutionality of Chapter 10, section 16 of the City Code under which the request was denied, and prayed that the city be required to issue the permit.

The issues were submitted to the court on the pleadings. After argument the chancellor entered an order declaring the section unconstitutional and ordered the city to issue the permit.

The section of the chapter dealing with the granting or denial of permits for the erection of gasoline service stations reads:

'Section 16. Same -- Grant or denial of a permit. The application for a permit shall be filed with the commissioner of the revenue and by him presented to the council for its approval or disapproval. If the application be approved, the council shall by ordinance authorize the issuance of a permit, but if upon consideration of the application the public safety would be endangered by the filling station for which application is made, the council shall by ordinance refuse to grant a permit.'

The attack upon the constitutionality of the section was that it failed to prescribe rules, standards or guides for the granting or withholding of such permit; that under the ordinance the council could grant the permit to one applicant and under the same circumstances withhold it from another; that sole discretion is attempted to be vested in the city council which it may exercise in the interest of one citizen and against the interest of another.

The city concedes that if an ordinance attempts to regulate an ordinary business it must provide a uniform rule of action but contends that the business of operating a gasoline service station is not an ordinary business but one tending to be injurious or dangerous to the public, the conduct of which should be regarded as a privilege rather than a right which the city in the discretionary exercise of its police power may permit or deny. With this we cannot agree.

In Daniel v. Kosh (1939), 173 Va. 352, 4 S.E.2d 381, we refused to enjoin the maintenance of a filling station as a nuisance or as a dangerous business. There we said:

'The method of marketing gasoline as here involved is, certainly in its general aspects and features, typical, and is a development of the times. It is not only convenient but necessary in the public interest. Common observation shows that, at least as...

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8 cases
  • Board of Sup'rs of James City County v. Rowe, 740994
    • United States
    • Virginia Supreme Court
    • June 13, 1975
    ...an ordinance is tested not only by what has been done under its provisions but what may be done thereunder.' City of Winchester v. Glover, 199 Va. 70, 72, 97 S.E.2d 661, 663 (1957). When, as here, a property owner alleges that a zoning ordinance creates discriminatory, arbitrary, and capric......
  • Arlington Forest Associates v. Exxon Corp.
    • United States
    • U.S. District Court — Eastern District of Virginia
    • September 19, 1991
    ...products we cannot say that the operation of a gasoline service station is an inherently dangerous business." City of Winchester v. Glover, 199 Va. 70, 97 S.E.2d 661, 663 (1957), rev'd on other grounds, Byrum v. Bd. of Supervisors, 225 S.E.2d 369 (Va.1976). Advances in technology and safety......
  • Owens v. City Council of Norfolk
    • United States
    • Circuit Court of Virginia
    • March 7, 2008
    ...its provisions, but also by what municipal actions may be taken pursuant to those provisions. Id., quoting, City of Winchester v. Glover, 199 Va. 70, 72, 97 S.E.2d 661, 663 (1957). The Court went on to state that:When, as here, a property owner alleges that a zoning ordinance creates discri......
  • National Maritime Union of America, AFL-CIO v. City of Norfolk
    • United States
    • Virginia Supreme Court
    • April 24, 1961
    ...to others under like circumstances. Andrews v. Board of Supervisors of Loudoun County, 200 Va. 637, 107 S.E.2d 445; City of Winchester v. Glover, 199 Va. 70, 97 S.E.2d 661. We have, however, recognized a well-established exception to the rule just stated. In the zoning field, this exception......
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