Leathers v. City of Burns

• Decision Date: 18 September 1968
• Citation: 444 P.2d 1010,251 Or. 206
• Parties: Charles C. LEATHERS, doing business as Leathers Oil Co., Respondent, v. The CITY OF BURNS, a municipal corporation, Appellant, William E. Garner, C. R. Bennett, Robert E. Cole, Orville W. Corbett, Homer Morrison, Leonard Taylor, Dale White, George P. Hughet, L. J. Larsen, and James Richardson, Defendants.
• Court: Oregon Supreme Court

Page 1010

444 P.2d 1010

251 Or. 206

Charles C. LEATHERS, doing business as Leathers Oil Co., Respondent, v. The CITY OF BURNS, a municipal corporation, Appellant, William E. Garner, C. R. Bennett, Robert E. Cole, Orville W.

Corbett, Homer Morrison, Leonard Taylor, Dale

White, George P. Hughet, L. J. Larsen,

and James Richardson, Defendants.

Supreme Court of Oregon, In Banc.

Argued and Submitted at Pendleton May 6, 1968.

Decided Sept. 18, 1968.

Ronald L. Marceau, Bend, and Wendell Gronso, Burns, argued the cause for appellant. On the briefs were McKay, Panner, Johnson & Marceau, Bend.

James H. Clarke, Portland, argued the cause for respondent. With him on the brief were McColloch, Dezendorf & Spears and Wayne Hilliard, Portland, and McAllister, Burns, Gustafson & Lock, Gresham.

Before PERRY, C.J., and O'CONNELL, GOODWIN, DENECKE, HOLMAN, and LUSK, JJ.

LUSK, Justice.

This case involves the constitutionality of two ordinances of the City of Burns, Oregon, regulating the storage and delivery of gasoline. The plaintiff, who operates a gasoline service station in the city, sought, by his complaint, a declaration that the ordinances violate the due process and equal protectional clauses of the Federal and state constitutions and prayed for an injunction against their enforcement. The circuit court, after an extensive hearing, held that enforcement of these provisions deprived the plaintiff of property without due process of law and entered a decree accordingly from which the defendant City of Burns prosecutes this appeal.

Ordinance No. 350, so far as pertinent, provides:

'WHEREAS, the unloading of large quantities of petroleum fuels at other than bulk distribution plants is considered by the Common Council of the City of Burns to be extremely dangerous because of probable conflagration, * * *.

'* * *, now therefore,

'BE IT ORDAINED BY THE CITY OF BURNS:

'Section 1. No vehicle having a conbined (sic) maximum capacity of over 2200 gallons shall be allowed to unload petroleum fuel with a flash point of less than one hundred degrees Fahrenheit within the corporate limits of the City of Burns except at bulk distributing plants now in existence or hereafter authorized by the Common Council of the City of Burns.

'Section 2. The term 'vehicle' or 'Unit of Vehicles' shall include a truck and trailer, or any other vehicle of whatever construction or any truck, vehicle, unit of truck and trailers or any other combination of vehicles.'

Following a preamble similar to that above quoted from Ordinance No. 350, Ordinance No. 349, as amended, so far as pertinent, provides:

'No underground tank shall be kept or maintained for the storage of flammable liquids if such tank has a capacity in excess of 3,000 gallons, and no more than 4,000 gallons total capacity for all tanks shall be maintained by any one garage, service station, residence or other business. * * *'

The challenged ordinances were purportedly enacted in the municipality's exercise of the police power as safety measures to prevent or minimize the danger of disastrous fires. Plaintiff alleges in his complaint that the ordinances are not reasonably related to this purpose, but, on the contrary, that they 'create conditions which are injurious to the public safety and welfare.'

As to the ordinance limiting the capacity of vehicles unloading gasoline, the complaint alleges that if smaller vehicles are used nearly four deliveries are needed to deliver the same quantities of gasoline as can be delivered by one large vehicle, that exposure to traffic hazards will be for much longer periods of time and there will be added danger because of the increased frequency of changing hose connections and opening and closing valves. The ordinance is further alleged to be discriminatory because it does not apply to deliveries of gasoline to bulk plants.

There are similar allegations with respect to ordinance No. 349, as amended, which limits the capacity of gasoline tanks in service stations. The complaint further alleges that the ordinances cause heavy financial losses to the plaintiff.

Plaintiff is a resident of Gresham in the Portland area. Burns is an Eastern Oregon city with a population of 4,100. There are six bulk plants for the storage of gasoline in Burns, but plaintiff does not get his gasoline supply from any of them. Instead, he gets it from the Texaco bulk plant in Portland and transports it to Burns by tank truck and trailer. The truck has a capacity of 4,000 gallons. Plaintiff owns two trailers, one with a capacity of 5,000 gallons and the other with a capacity of 4,300 gallons. His station is located about four blocks from the west city limits of Burns. There are four underground tanks on the premises, ranging in size from 4,000 to 10,000 gallons, and having a total capacity of 24,000 gallons. Ordinance No. 350 prohibits plaintiff from unloading the transport at his station, so he proceeds past it to the Burns airport, about four miles east of the city, where he transfers gasoline from the truck to a Dodge tanker, having a capacity of 1,800 gallons, which conveys its load back to the station. This process is repeated until the truck is empty. The trailer is left behind, fully loaded, to serve the purposes of a bulk plant. The other trailer, which had been serving the same purpose in the meanwhile and is now empty, is attached to the truck for the return trip to Portland.

During the winter months plaintiff sells an average of 20,000 gallons a month and he estimated that his sales would average 27,000 to 30,000 gallons per month during the summer. It is obvious that his cost of doing business is increased as the result of the larger number of transfer procedures and additional miles of transportation made necessary by the ordinances. ¹ Plaintiff testified that this increased cost was approximately one cent a gallon.

To support his claim of unconstitutionality, plaintiff called witnesses whose qualifications to testify as experts on the subject of the causes, prevention and control of gasoline fires are not to be questioned. They are John A. Ainlay of Chicago, Executive Secretary of the Central Region Committee of the American Petroleum Institute; James M. Hammack, Battalion Chief of the Los Angeles Fire Department assigned as Fire Prevention Engineer to the Fire Prevention Bureau and having specific responsibility with respect to industrial and commercial inspections, including gasoline service stations, in the City of Los Angeles; Oliver W. Johnson of Palo Alto, California, Consulting Fire Protection Engineer; and George F. Prussing of Washington D.C., consulting Fire Protection Engineer. They were allowed by the court to express their opinions that the ordinances do not promote safety, but, on the contrary, create an additional hazard. Their evidence is buttressed by model codes regulating tank trucks and underground tanks developed by the National Fire Protection Association, an organization with about 20,000 members representing the fire chiefs' associations, the insurance groups and industry interested in fire safety. These codes form the basis of legislation in 40 states and hundreds of cities and have been adopted by the Interstate Commerce Commission. They have never included any limitation on the size of delivery trucks or underground tanks.

The evidence shows that gasoline does not burn, but its vapors do. Gasoline is highly volatile and when vapors escape and are mixed with the air in the right proportions and a source of ignition is present, a spark for example, there will be a fire. If the proportion of vapor to air is less than one and one-half per cent it will not burn because it is too lean; if it is above seven per cent it will not burn because it is too rich. The major cause of fire from tank vehicles is crashes on the highway. ² A less frequent cause is human fault or negligence in transfer (loading or unloading) procedures. Plaintiff's expert witnesses testified that the Burns ordinances increase rather than diminish the danger of fire by multiplying the number of miles which plaintiff's vehicles, loaded with gasoline, must travel and the number of times gasoline must be transferred, with the possibility it may be exposed to the air. As Mr. Ainlay testified: 'When you unload a truck you are involving the human element and the record will show that most of our accidents, most of our fires, involve human element.' Moreover, the length of time consumed in transferring a given quantity of gasoline from a large tanker at a service station is less than that required to transfer it from a small tanker because the large tanker unloads through a three-inch hose, while the small one uses a one-inch hose.

As to the ordinance limiting the capacity of underground storage tanks, the parties are agreed that the safest place to store gasoline is in underground tanks. Defendant's brief frankly so concedes. There cannot be a fire in an underground tank which is in use, because the ratio of the vapor in the tank to air is far above seven per cent and it will not burn. A fire at the fill pipe cannot spread into the tank because gasoline vapor is heavier than air and the vapor is far too rich to burn. When the tank is being filled the vapor is forced out through a vent pipe which should be at least 12 feet high (plaintiff's station is so equipped) so that there will be no ignitible mixture at ground level. Vapors may be released at the fill pipe during the process of unloading or at a customer's automobile if the gasoline should overflow. These hazards are neither greater nor less because of the size of the tank or of the truck.

It is the defendant's theory that, whatever value the testimony of plaintiff's expert witnesses might have in other contexts, it has little application to this case. As the reply brief puts it, analysis of the issue whether the ordinances are a reasonable exercise of the city's police power 'requires that the evidence be...