State ex rel. Omaha Gas Co. v. Withnell

• Decision Date: 05 January 1907
• Citation: 78 Neb. 33,110 N.W. 680
• Parties: STATE EX REL. OMAHA GAS CO. v. WITHNELL.
• Court: Nebraska Supreme Court

78 Neb. 33

110 N.W. 680

STATE EX REL. OMAHA GAS CO.

v.WITHNELL.

Supreme Court of Nebraska.

Jan. 5, 1907.

Syllabus by the Court.

An ordinance enacted by the mayor and council of the city of Omaha regulating the construction of buildings in said city, which provides that it shall be unlawful to erect a gas tank or holder therein without the written consent of the owners of all the property within a radius of 1,000 feet from the site of such structure, is, as to such proviso, void.

Commissioners' Opinion. Department No. 1. Appeal from District Court, Douglas County; Day, Judge.

Application by the state on the relation of the Omaha Gas Company for writ of mandamus to Charles H. Withnell. Judgment for defendant, and relator appeals. Reversed and remanded.Geo. E. Pritchett and John C. Cowin, for appellant.

H. E. Burnam and I. J. Dunn, for appellee.

AMES, C.

The charter of the city of Omaha besides conferring upon the mayor and council of the city the usual powers to abate nuisances and to provide, by ordinance, police regulations for the good government and the preservation of the general welfare, health, safety, and security of the city and its inhabitants, contains the following specific grant of authority: “The mayor and council may regulate or prohibit the transportation and keeping of gunpowder, oils and other combustible and explosive articles.” They are also given the usual powers to prescribe fire limits and to regulate the erection of all buildings within the corporate limits. In the supposed exercise, more particularly, of the last two mentioned powers, the mayor and council enacted an ordinance containing two sections numbered, respectively, 96 and 97, of which the following is a copy:

“Section ninety-six (96). It is hereby declared unlawful to erect any tanks, or to build any storage reservoirs, for the purpose of storing either illuminating or fuel gas, or to remodel any existing tank, reservoir, building or structure for such purpose not actually in use for the same at the time of the passage of this ordinance at any place in the city of Omaha, except upon the conditions in section ninety-seven (97) of this chapter prescribed.

Section ninety-seven (97). Before constructing any building or structure to be used for the manufacture of illuminating or fuel gas, and before erecting any tanks, storage reservoir or other receptacles for the purpose of storing either illuminating or fuel gas, and before remodeling or using any building, structure, tanks or reservoir for such purpose, the party or parties desiring such privilege shall first obtain the written consent of all the property owners within a radius of one thousand feet of the proposed building, structure, tank or reservoir to be used for such purpose, and file such permission with the building inspector of the city of Omaha, and comply with all other ordinances, rules and regulations relating to buildings.”

The Omaha Gas Company is a corporation of this state having its principal place of business at Omaha, and authorized and required by law and by municipal ordinance to construct, maintain, and operate gas works in said city, and to manufacture and transmit and distribute, through mains and pipes in and under the streets and public grounds, illuminating and fuel gas for the use of the public and individuals, and for that purpose has erected, and for several years last past has maintained, a gas manufacturing plant upon grounds belonging to it in said city. In 1906 the gas company, for the purpose of increasing its capacity to a degree requisite to supply the needs of a rapidly growing community, it being the only institution of its kind in the city, applied to the building inspector for a permit to erect and maintain upon its grounds and in connection with its existing works a reservoir or “gas holder” capable of storing 1,200,000 cubic feet of gas. The application complies with all municipal regulations with reference to the subject contained in the ordinance mentioned or elsewhere, except the requirement of the above-mentioned section 97, of the written consent of all property owners within a radius of 1,000 feet of the site of the proposed structure. Because of such omission and for that reason alone, the inspector refused to honor the application. This is an application to the district court for a writ of mandamus compelling the issuance of the permit. The writ was denied, and the relator appeals. It thus appears that the sole question in controversy is the validity of that provision of section 97 requiring a written consent of property owners.

The ordinance does not purport to be, and was not intended to be, prohibitory, but to be regulatory only, nor is it sought to declare the manufacture and distribution of gas or the maintenance and operation of works therefor, or the storage of gas in connection therewith, within the city, by the relator or others, a nuisance per se, nor is it disputed that the conduct of such a business under proper regulations is a legitimate, and under existing conditions, a necessary, enterprise indispensable to the health, happiness, and prosperity of the modern city and its inhabitants, or, as is said in New Orleans Gas Co. v. Louisiana Light Co., 115 U. S. 660, 6 Sup. Ct. 252, 29 L. Ed. 516, “is a business of a public nature,” and is “one which, so far from affecting the public injuriously, has become one of the most important agencies of civilization, for the promotion of the public convenience and the public safety.” The ultimate inquiry is, therefore, whether the provision in question is a reasonable exercise of the regulatory powers of the mayor and council. Counsel...