Clark Oil & Refining Corp. v. City of Tomah

• Decision Date: 12 April 1966
• Citation: 141 N.W.2d 299,30 Wis.2d 547
• Court: Wisconsin Supreme Court
• Parties: CLARK OIL & REFINING CORP., a Wis. corporation, Respondent, v. CITY OF TOMAH, a Wis. municipal corporation, Appellant.

Page 299

141 N.W.2d 299

30 Wis.2d 547

CLARK OIL & REFINING CORP., a Wis. corporation, Respondent, v. CITY OF TOMAH, a Wis. municipal corporation, Appellant.

Supreme Court of Wisconsin.

April 12, 1966.

Lawrence S. Clark, City Atty., Tomah, Edwin Larkin, Eau Claire, for appellant.

Thomas F. McCaul, Tomah, Hale, Skemp, Hanson, Schnurrer & Skemp, La Crosse, for respondent.

WILKIE, Justice.

The city of Tomah has a population of about 5,000. U.S.Highway 12 cuts through this Monroe county city. Superior avenue (part of the highway) is Tomah's main street. The Clark station is located at the corner of Superior avenue and Saratoga street. The station has two islands from which gasoline is pumped. It has two below-ground, properly-vented storage tanks, each with a capacity of 6,000 gallons. Clark sells about 22,000 gallons each month from this station.

Because of the disputed ordinance Clark was forced to buy gasoline from a local bulk operator who delivered the gasoline in a 1,500-gallon truck (tank wagon). Clark would prefer to have the gasoline delivered to its station directly from its bulk facilities near Milwaukee, transporting the gasoline in 8,000-gallon tractor-trailer tank trucks (transports). By doing this Clark would save five cents per gallon.

To protect 'the public safety and welfare' the city council of Tomah adopted ordinance No. 381, the pertinent provisions of which are as follows:

'The Common Council of the City of Tomah do ordain as follows:

'1. No person, partnership or corporation shall park or permit the parking of any motor trucks, trailers, semi-trailers, tank trucks or any other vehicles used for the transportation of Class I, II or III liquid petroleum products, as defined in the Wisconsin State Flammable Liquids Code, whether loaded or empty on any public street, highway or alley or open space in the City of Tomah except for the purpose of making repairs thereto or complying with traffic regulations or for delivering of Class III liquids to any premises.

'2. No person, partnership or corporation shall for any purposes with any motor truck, trailer, semi-trailer, tank truck or other vehicle used for the transportation of Class I or II liquid petroleum products, having a carrying or storage capacity in excess of 1,500 gallons, deliver any Class I or II liquid petroleum products, as defined in the Wisconsin State Flammable Liquids code to any premises in the City of Tomah, except to an authorized bulk plant situated in a location so classified by the Zoning and other ordinances of the City of Tomah as to permit of the operation of a bulk plant at that location, and except to railroad premises in the usual course of business under all regulations applicable thereto.

'3. No person, partnership or corporation shall transfer Class I or II liquid petroleum products, as defined in the Wisconsin State Flammable Liquids Code, from any truck, trailer, semi-trailer, tank truck or other vehicle used for the transportation of such products with any equipment, or in any manner, not authorized by applicable Federal and State laws or ordinances of the City of Tomah.

'4. Each of the sub-sections of this section are hereby declared to be severable and enacted under police power of the City of Tomah as a reasonable and necessary regulation in the protection of the public safety and welfare. All other Ordinances heretofore adopted by the City of Tomah, inconsistent with the provisions of this Ordinance are hereby repealed.

'5. Any person, firm or corporation who shall violate any provision of this ordinance shall be subject to prosecution therefore and upon conviction thereof shall be punished by payment of forfeiture of not less than Fifty Dollars ($50.00) and not to exceed One Hundred Dollars ($100.00) for each offense, together with the costs of prosecution. Each separate day upon which a provision hereof shall be violated shall constitute a separate offense.'

This ordinance renders illegal Clark's desired method of accomplishing gasoline deliveries to its Tomah station. Clark attacks the whole ordinance as an unreasonable and therefore unconstitutional exercise of the police power.

The three specific issues raised on this appeal concern the validity of the provisions of the first three sections of the ordinance: Section 1--prohibiting parking of petroleum vehicles, whether empty or loaded with flammable fluids, section 2--prohibiting transport of flammable fluids in trucks of more than 1,500-gallon capacity, and section 3--prohibiting transfer of these fluids from such trucks.

The trial court concluded that both sections 1 and 2 were unconstitutional; that, indeed, the entire ordinance was unconstitutional. Respondent urges that in reviewing the trial court's findings and conclusions this court is bound by the usual rule governing supreme court review of trial court findings and conclusions, to-wit, that they are to be upheld unless against the great weight and clear preponderance of the evidence. ¹ This is correct only insofar as the findings of the trial court concern themselves with adjudicative facts, e.g., the size, location, time of leasing, physical characteristics, tank capacity, and monthly gallonage of the Clark station, as distinguished from conclusions of law or matters of legislative choice.

Except as to these adjudicative facts, the scope of an appellate court's review of a trial court's findings and conclusions was well stated by the United States Supreme Court in South Carolina State Hwy. Dept. v. Barnwell Bros., ² as follows:

'Since the adoption of one weight or width regulation, rather than another, is a legislative, not a judicial, choice, its constitutionality is not to be determined by weighing in the judicial scales the merits of the legislative choice and rejecting it if the weight of evidence presented in court appears to favor a different standard. Cf. Worcester County Trust Co. v. Riley, 302 U.S. 292 (299), 58 S.Ct. 185, 82 L.Ed. 268. Being a legislative judgment it is presumed to be supported by facts known to the Legislature unless facts judicially known or proved preclude that possibility. Hence, in reviewing the present determination, we examine the record, not to see whether the findings of the court below are supported by evidence, but to ascertain upon the whole record whether it is possible to say that the legislative choice is without rational basis. Standard Oil Co. v. (City of) Marysville, supra (279 U.S. 582, 49 S.Ct. 430, 73 L.Ed. 856); Borden's Farm Products Co. v. Ten Eyck, 297 U.S. 251, 263, 56 S.Ct. 453, 456, 80 L.Ed. 669; Id., D.C. 11 F.Supp. 599, 600. Not only does the record fail to exclude that possibility but it shows affirmatively that there is adequate support for the legislative judgment.'

The most crucial section of the ordinance is section 2, which prohibits transporting gasoline in Tomah for delivery to retail stations there in trucks holding 1,500 gallons or more. When the validity of a city ordinance enacted under its police power is challenged several well-recognized rules are applied by the courts in determining whether or not the ordinance is constitutional.

The ordinance is presumed constitutional and the attacking party must establish its invalidity beyond a reasonable doubt. ³

The ordinance must be sustained if there is any reasonable basis for its enactment, ⁴ and the courts will only interfere with the exercise of police power by a municipality when it is clearly illegal. ⁵

The function of a reviewing court is solely for the purpose of determining whether legislative action under the power delegated to the municipality passes boundaries of its limitations or exceeds boundaries of reason. ⁶

Is there any rational basis for a legislative choice supporting the ordinance? ⁷

In our opinion Clark has sustained its burden of proof demonstrating that there is no reasonable view that could have been picked by the council by which it can be demonstrated that this section of the ordinance promotes safety and the general welfare.

It is undisputed that in Tomah most of the homes are wood; that the buildings in the mercantile area are mostly brick veneer with wooden floors or stairways; that Tomah has about 1,500 residential water meters and about 200 commercial water meters that Tomah has a storm and sanitary sewer system; that it has a volunteer fire department.

Appellant relies on opinion testimony by Tomah Fire Chief Giesler that deliveries in 8,000 gallon trucks are more hazardous than deliveries in 1,500 gallon vehicles and by William Clark, the supervisor of fire service training for the state board of vocational and adult education, that semi-trailers are very likely to overturn, spilling gasoline onto the street and into the Tomah sewer system.

William Clark's comments are directed to possibilities of danger while the larger truck is being driven. Yet section 2 concerns itself only with prohibiting delivery. It places no restriction on trucks driving through Tomah or even in Tomah if they are headed for a bulk tank or railroad yard. His opinion is limited to only that part of the hazard created by the moving vehicles which is limited to those trucks destined to make deliveries of gasoline to local retail stations.

The testimony of Clark and Giesler is completely demolished by the evidence introduced by respondent.

It is undisputed that it is the gasoline vapor and not the gasoline itself which burns. There was testimony by respondent's witnesses to the effect that the insurance rates for the 1,500 gallon tank wagon and the 8,000 gallon transport were the same, that the construction of the 8,000 gallon transport met with state and federal requirements, that the larger transports had safety devices (internal compartments with self-closing valves and 'tite fill' caps and 'tite fill' hoses) not present on the 1,500 gallon vehicle, that these caps and hoses provided an airtight connection between the truck and underground...