Continental Oil Co. v. City of Twin Falls

• Decision Date: 22 March 1930
• Docket Number: 5268
• Citation: 49 Idaho 89,286 P. 353
• Parties: CONTINENTAL OIL COMPANY, a Corporation, Respondent, v. THE CITY OF TWIN FALLS, a Municipal Corporation, R. E. BOBIER, the Mayor, and R. B. SMITH, J. E. WHITE, L. A. CHAPIN and T. J. DOUGLAS, Members of the Council, J. L. MEE, the Police Magistrate, and R. E. LEIGHTON, the Chief of Police, All of Said City, Appellants
• Court: Idaho Supreme Court

286 P. 353

49 Idaho 89

CONTINENTAL OIL COMPANY, a Corporation, Respondent, v. THE CITY OF TWIN FALLS, a Municipal Corporation, R. E. BOBIER, the Mayor, and R. B. SMITH, J. E. WHITE, L. A. CHAPIN and T. J. DOUGLAS, Members of the Council, J. L. MEE, the Police Magistrate, and R. E. LEIGHTON, the Chief of Police, All of Said City, Appellants

No. 5268

Supreme Court of Idaho

March 22, 1930

MUNICIPAL CORPORATIONS - LEGISLATIVE POWERS - ORDINANCES-CONSTITUTIONAL LAW-LOCATION OF GASOLINE FILLING STATIONS-INJUNCTION.

1. Plaintiff, having purchased property after passage of ordinance involved, stood in place of grantor and his predecessors in title and obtained by conveyance all their rights with respect to property, and had interest sufficient to enable it to maintain action to enjoin defendants from enforcing ordinance prohibiting building of gasoline filling station within 500 feet of school grounds.

2. Fact that, until conditions arose making property involved too valuable for residence purposes, plaintiff's predecessors in interest used property for residence purposes only was not an assent to restriction placed upon property by ordinance against construction of gasoline filling station that would preclude plaintiff from attacking its constitutionality.

3. If ordinance prohibiting construction of gasoline filling station within 500 feet of school grounds was invalid when passed in 1920, lapse of time, however long, would not render it valid, and statutes of limitation could not be invoked.

4. That ordinance prohibiting construction of gasoline filling station within 500 feet of school grounds was passed in 1920 and there was long delay in property owner's bringing action challenging constitutionality of ordinance and seeking to restrain interference with building of proposed filling station, did not prevent plaintiff from maintaining action where city had not been induced to change its position to its disadvantage because of any act of plaintiff, and no rights of property had sprung into existence by reason of ordinance.

5. In suit to restrain city and others from interfering with building of proposed gasoline filling station, in which plaintiff alleged, among other things, that "ordinance was unconstitutional and void and its enactment was not and is not now required for the protection of public hazard and protection of public morals, health, or safety," and alleging conditions in 1927 as to traffic, liability to accident, annoyance from odors, noise, etc., held to raise issue of constitutionality of ordinance passed in 1920.

6. In suit to restrain city and others from interfering with building of proposed gasoline filling station, in which constitutionality of ordinance was challenged, court properly permitted testimony that at time of suit in 1927, there was no increased fire hazard or danger from explosion, that there was no offensive odor within distance school was located from filling station, that noise incident to operation of cars did not interfere with school work, and that traffic on sidewalk was not of sufficient volume to render operation of service station dangerous to life, though ordinance attacked was passed in 1920.

7. Legislative powers possessed by municipal corporation are those conferred upon it by Constitution, charter or general statute.

8. Legislative powers of municipal corporation may be expressly laid down in charter or legislative act, or they may be necssarily inferred from powers granted.

9. C S., sec. 3860, par. 4, granting powers to municipality with reference to nuisances, section 3948 relating to welfare of corporation, section 3954 relating to offensive businesses section 3960 relating to obstructions from sidewalks, section 3962 relating to vehicles crossing sidewalks, held to extend police power therein granted to subject matter of erection of filling stations.

10. Business of conducting gasoline filling station of drive-in type either in business or residence district is lawful business.

11. Whether thing not a nuisance per se is nuisance per accidens or in fact, depends upon its location and surroundings manner of its conduct or other circumstances.

12. Where legislature, in terms by charter or general law, confers upon municipality power to pass ordinances of specified and defined character, such delegated power not being in conflict with Constitution, an ordinance passed pursuant thereto cannot be held invalid because otherwise regarded as unreasonable.

13. Where power to legislate on given subject is conferred, and mode of its exercise is not prescribed, then the ordinance passed in pursuance thereof must be reasonable exercise of the power, or it will be pronounced invalid.

14. In determining question of reasonableness or unreasonableness of municipal ordinance, all existing circumstances or contemporaneous conditions, the objects sought to be obtained, and the necessity or lack thereof for its adoption, will be considered by court.

15. It is a question of law for the court whether or not an ordinance is reasonable.

16. There is always a presumption of the validity of an ordinance.

17. Where an ordinance is legislative in character, as distinguished from administrative or ministerial, courts will not ordinarily inquire into motives of council in passing ordinance.

18. Access to public way across sidewalks, subject to right of reasonable regulation of municipality, is one of incidents of ownership of land bounding thereon, and this right is appurtenant to land and is vested right of which lot owner cannot be deprived without just compensation.

19. Ordinance prohibiting construction of drive-in gasoline filling station within 500 feet of school grounds held clearly unreasonable, and therefore invalid, as applied to plaintiff's block, where such property by reason of size, shape and heavy special assessment was too valuable for residence purposes, and there was no increased fire hazard nor danger from explosion nor offensive odor within distance school was located from filling station, and noise incident to operation of cars would not interfere with school work, and traffic on sidewalk was not of sufficient volume to render operation of service station dangerous to life, and ordinance was violative of guaranties of Const. U.S. , Amend. 14, and state Const., art. 1, sec. 13.

20. Ordinance prohibiting construction and operation of drive-in gasoline filling station within 500 feet of school grounds held invalid as discriminatory, in that it did not apply to all businesses of same class, since, if it was intended to regulate sale of gasoline as dangerous or obnoxious business, under C. S., sec. 3954, its provisions did not cover garages, stores and other places where gasoline was retailed by means of curb pump, and, if object was to regulate driving of vehicles across sidewalk authorized by sec. 3962, it discriminated in favor of businesses such as garages, drive-in refreshment stands, etc.

21. Municipality has right to classify businesses, but in so doing it will not be permitted to make an arbitrary distinction between different kinds and classes of business, where conditions are similar.

22. Ordinances which, without authority of any other ordinance prescribing definite and certain rules by which right to permit shall be ascertained, commit right to erect structure to uncontrolled discretion of city council, are invalid.

APPEAL from the District Court of the Eleventh Judicial District, for Twin Falls County. Hon. Hugh A. Baker, Judge.

Action for injunction. Judgment for plaintiff. Affirmed.

Judgment affirmed. Costs to respondent.

E. M. Sweeley, for Appellants.

If any cause of action existed it accrued the moment the ordinance went into effect and to the then owner of the property affected. (Killilea v. Douglas, 133 Wis. 140, 126 Am. St. 938, 113 N.W. 411, 17 L. R. A., N. S., 1189; Nebola v. Minnesota Iron Co., 102 Minn. 89, 12 Ann. Cas. 56, 112 N.W. 880.)

A constitutional question must be raised at the earliest possible moment consistent with good pleading and orderly procedure. (Brady v. Place, 41 Idaho 747, 242 P. 314, 243 P. 654.)

Where a constitutional question is involved and the complaint shows a long delay, unexcused and unexplained, it fails to state a cause of action. (Ryan v. Woodin, 9 Idaho 525, 75 P. 261; Canady v. Coeur d'Alene Lumber Co., 21 Idaho 77, 120 P. 830.)

A claim or right dead in the hands of a holder is not revived by transfer to someone else. (2 R. C. L., p. 626, par. 34.)

Where the classification of a statute is called into question, if any state of facts can be conceived that will sustain it, the existence of that state of facts at the time the law was enacted must be assumed. (Munn v. Illinois, 94 U.S. 113, 24 L.Ed. 77; Lindsley v. Natural Carb. Gas Co., 220 U.S. 61, Ann. Cas. 1912C, 160, 31 S.Ct. 337, 55 L.Ed. 370.)

There is no legal presumption that a state of things shown to exist at a particular time was in existence several years prior thereto. (9 Ency. Evid., p. 916; Windhaus v. Bootz, 92 Cal. 617, 28 P. 557.)

Where the power to legislate is not questioned but the legislation is attacked as unreasonable, the court will not weigh the quantum of reason, but in such case, unless it clearly appears that no reason exists for it, the legislation is constitutional. (State v. Dolan, 13 Idaho 693, 92 P. 995, 14 L. R. A., N. S., 1259; Flint v. Stone Tracey, 220 U.S. 107, Ann. Cas. 1912B, 1312, 31 S.Ct. 342, 55 L.Ed. 389; Cayce v. City of Hopkinsville, 217 Ky. 135, 289 S.W. 223; Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 54 A. L. R. 1016, 47 S.Ct. 114, 71 L.Ed. 303; McCray v. United States, 195 U.S. 27, 1 Ann. Cas. 561, 24 S.Ct. 769, 49 L.Ed. 78.)

Where all engaged in the same business are included...