Gulf Refining Co. v. City of Laurel

• Decision Date: 20 November 1939
• Docket Number: 33857
• Citation: 187 Miss. 119,192 So. 1
• Court: Mississippi Supreme Court
• Parties: GULF REFINING CO. v. CITY OF LAUREL

192 So. 1

187 Miss. 119

GULF REFINING CO. v. CITY OF LAUREL

No. 33857

Supreme Court of Mississippi, Division A

November 20, 1939

APPEAL from the circuit court of Jones county HON.W. J. PACK, Judge.

Proceeding in the matter of the application of the Gulf Refining Company for a permit to construct and operate a gasoline filling station within the City of Laurel. From a judgment affirming an order of the Mayor and Commissioners of the City of Laurel refusing to grant a permit, the Gulf Refining Company appeals. Affirmed.

Affirmed.

Green Green & Jackson, of Jackson, for appellant.

The City of Laurel, as a municipal corporation was not authorized to adopt the ordinance under which it is sought to deny the petition for the permit.

Ex parte O'Leary, 65 Miss. 80, 3 So. 144; Town of Cuba v. Miss. Cotton Oil Co., etc. (Ala.), 43 So. 706; Desporte v. City of Biloxi, 136 Miss. 542, 100 So 387; National Refining Co. v. Batte, 135 Miss. 819 100 So. 388; Fitzhugh v. Jackson, 132 Miss. 585, 97 So. 190, 33 A.L.R. 279; Clinton v. Turner, 95 Miss. 594, 52 So. 261; Alexander v. Graves, 178 Miss. 583, 173 So. 417; Hyma v. Seeger, 207 N.W. 834; Standard Oil Co. v. Minneapolis, 204 N.W. 165; Lane v. Spokane (Wash.), 225 P. 847.

Admitting the validity of the ordinance for argument's sake the record and facts did not justify the denial of the permit.

City of Ellisville v. State Highway Commission et al. (Miss.), 191 So. 274; R. R. Co. v. Cathey, 70 Miss. 332; R. R. Co. v. Boone, 111 Miss. 881; R. R. Co. v. Holsomback, 168 Miss. 493; Tyson v. Utterback, 154 Miss. 381; Williams v. Lumpkin, 169 Miss. 146; Railway Co. v. Coleman, 172 Miss. 514; Y. & M. V. R. R. Co. v. Lamensdorf, 178 So. 80; Teche Lines v. Bounds, 179 So. 747; Berryhill v. Nichols, 171 Miss. 769; Mutual Benefit, etc. Assn. v. Johnson, 186 So. 297; Kramer Service v. Wilkins, 186 So. 625, 184 Miss. 483.

We submit that the record here does not justify any conclusion that the use of the property for a modern fire proof filling station with open view for traffic from one street to the other could in any manner affect traffic conditions or fire explosive hazard other than to diminish the actual condition that now exists in Laurel at the intersection of Commerce and Central Streets.

City of Ellisville v. State Highway Commission et al., 191 So. 274.

As we review this record, we submit that the question of the use of the streets and sidewalks is not involved, but the question here is whether the city on this record may refuse to grant a permit for the use of a private lot by this appellant where there is no showing that such use of the private real estate will in any manner endanger the public, either as pedestrians or occupants of vehicles, and where the proof affirmatively shows that traffic conditions and fire hazard will be improved at the particular location.

J. R. Buchanan, of Laurel, for appellee.

The municipal authorities of the City of Laurel, Mississippi were fully authorized to enact the ordinance requiring application for permit for filling station and providing under what conditions such permit might be granted under police powers granted to a municipality.

Sections 2414 and 2434, Code of 1930; Brogan v. Hosey et al., 172 Miss. 869, 161 So. 690; City of Ellisville v. State Highway Commission et al., 191 So. 274; Williams et al. v. Montgomery et al. (Miss.), 186 So. 302.

The enactment of such an ordinance is not violative of the provisions of the 14th Amendment of the U.S. Constitution, nor of the provisions of Sections 14 and 17 of the Mississippi Constitution of 1890.

State ex rel. Lane v. Fleming et al., 129 Wash. 646, 225 P. 647; Powell v. Pennsylvania, 127 U.S. 678, 8 S.Ct. 992, 32 L.Ed. 253; Hyma v. Seeger et al., 233 Mich. 659, 207 N.W. 834.

The physical facts, the plans and specifications, and the testimony introduced in the hearing before the governing body of the City of Laurel, Mississippi, justified the denial of the permit.

Hyma v. Seeger et al., 233 Mich. 659, 207 N.W. 834.

F. B. Collins, of Laurel, for appellee.

The Mississippi Supreme Court has not passed directly upon an ordinance, the provisions of which are identical with the one under consideration, but it has passed upon the proposition that municipalities have full jurisdiction over the streets and sidewalks. The Supreme Courts of other states have passed upon an ordinance, the provisions of which are identical with the one under consideration.

Brogan v. Hosey, 161 So. 690; Summerville v. Keeler, 145 So. 721; 42. C. J. 1306, Section 1213 through 1218; Standard Oil Co. v. City of Minneapolis, 204 N.W. 165; Hyma v. Seeger, 207 N.W. 834; State ex rel. Lane v. Fleming, 225 P. 647.

The foregoing authorities are directly in point and hold that municipalities have the authority under the general police power of the city to prohibit the erection of filling stations at places in the city where by reason of traffic condition or fire hazards their operation will imperil the public safety.

Town of Senatobia v. Dean, 127 So. 773.

The ordinance under consideration does not violate the Fourteenth Amendment to the Constitution of the United States for the reason that the Fourteenth Amendment to the Constitution of the United States does not in any way affect the police power of municipalities or police power of the government.

Fischer v. St. Louis, 194 U.S. 361, 24 S.Ct. 673, 48 L.Ed. 1018; Lieverman v. Van de Carr, 199 U.S. 552, 26 S.Ct. 144, 50 L.Ed. 305; Standard Oil Co. v. City of Marysville, 279 U.S. 582, 40 S.Ct. 430; Gant v. City of Oklahoma, 289 U.S. 98, 77 L.Ed. 1058.

We respectfully submit that the mayor and commissioners were clearly within their rights and within the authority vested in them by law and that the facts in the case justified their finding.

Argued orally by Forrest B. Jackson, for appellant, and by J. R. Buchanan, for appellee.

OPINION

Smith, C. J.

The City of Laurel has an ordinance requiring persons, firms, or corporations before constructing and operating a filling station within its municipality, to obtain a permit therefor from its mayor and commissioners. The ordinance provides for a hearing of the application for the permit, at which hearing persons opposed thereto may appear and give evidence; and that "If upon the hearing it should appear to the said Mayor and Commissioners that the erection, construction operation, or maintenance of such a gasoline filling station at...