Independent Pennsylvania Oil Company v. Mayor and Common Council of City of Gloucester

• Court: New Jersey Supreme Court
• Writing for the Court: PARKER, J.
• Citation: Independent Pennsylvania Oil Company v. Mayor and Common Council of City of Gloucester, 134 A. 554, 102 N.J.L. 502 (N.J. 1926)
• Decision Date: 30 September 1926
• Docket Number: 271
• Parties: INDEPENDENT PENNSYLVANIA OIL COMPANY, PROSECUTOR, v. MAYOR AND COMMON COUNCIL OF THE CITY OF GLOUCESTER ET AL., RESPONDENTS

134 A. 554

INDEPENDENT PENNSYLVANIA OIL CO.

v. MAYOR AND COMMON COUNCIL OF CITY OF GLOUCESTER et al.

No. 271.

Supreme Court of New Jersey.

Sept. 30, 1926.

(Syllabus by the Court.)

Certiorari by the Independent Pennsylvania Oil Company against the Mayor and Common Council of the City of Gloucester to review a city ordinance. Writ dismissed.

Argued before PARKER, BLACK, and CAMPBELL, JJ.

Walter S. Keown, of Camden, for prosecutor.

Charles W. Letzgus, of Camden, for defendants.

PARKER, J. This writ of certiorari brings up an ordinance of the city of Gloucester, adopted December 14, 1923, and which the prosecutor maintains is invalid and should be set aside. The delay of two years and more in attacking it is not explained, although it does appear that there has been some chancery litigation between the prosecutor and the city.

The ordinance in question seems to be based on the powers conferred by the "Home Rule Act" (P. L 1917, P. 319 et seq.) in article 14, § 1, paragraph (p) at page 354, "to regulate the use, storage, sale and disposal of inflammable and combustible materials, and to provide for the protection of life and property from fire, explosions and other dangers." It is claimed that in the ordinance the city has gone beyond the limits of the power conferred, and a consideration of this question requires the incorporation at this point of the title and first section of the ordinance; the remainder relating to enforcement by prosecution, penalty, etc.:

"An ordinance regulating the storage of petroleum, naptha, benzine, benzole, gasoline, coal oil or any products of petroleum or any inflammable or explosive oils. "Be it ordained by the mayor and common council of Gloucester City that:

"Section 1. It shall be unlawful for any person or persons, firm or corporation to keep or have stored in any building or other premises, or on any land within the city of Gloucester, any petroleum, naptha, benzine, benzole, gasoline, coal oil or any products of petroleum or any inflammable or explosive oils, in any quantity at any one time more than two barrels of refined petroleum, one barrel of crude petroleum, two barrels of benzine, benzole, gasoline, coal oil, naptha or any other inflammable or explosive oils, respectively, unless the same shall be stored in tanks under ground, but in no case shall benzine, benzole, naptha, gasoline, coal oil or any other inflammable or exposive oils be stored in the cellar of any building or other premises or on any land within the space of one thousand feet of any dwelling house, storeroom, building, barn, shed or other like structure within the corporate limits of the city of Gloucester."

Before proceeding to the particulars of the case, it is proper to note the settled rule touching attack by certiorari on a municipal ordinance as an entirety. To the broad claim here made that it is not regulatory but prohibitory, and therefore beyond the power conferred by statute, we cannot agree. If it provided that no gasoline, etc., should at any time or under any circumstances be stored in the city limits, that would no doubt be prohibitory, but this ordinance is far from saying that. We consider it regulatory, though of course very strict in regulation, and that brings up the question, common in municipal cases, whether the regulation is so unreasonable as to invalidate the entire ordinance.

In the leading case of Pennsylvania R. Co. v....