City of Vincennes v. Marland Refining Co. , 33 F.2d 427 ( 1929 )

PAGE, Circuit Judge.

The District Court perpetually enjoined the city of Vincennes, Ind., called city, from enforcing its Ordinance No. 461, as against appellee. The ordinance, adopted May 13, 1927, after appellee had on March 11, 1927, filed for record its deed of property purchased for the sole purpose of erecting a gasoline filling station, reads:

“An ordinance regulating the erection, location and maintenance of drive-in retail and wholesale gasoline and oil filling stations within the city of Vincennes and prescribing a penalty for violation thereof.

“Sec. 1. Be it ordained by the common council of the city of Vincennes, Indiana, that it shall be unlawful for any person, firm or corporation, either as owner, lessee, lessee manager, officer or agent to erect or maintain any drive-in retail or wholesale gasoline or oil filling station at any point within the corporate limits of the eity of Vincennes, Indiana, without first obtaining the written, consent of majority of the property owners owning property, whether a resident or nonresident, located within a radius of three-hundred (300) feet of the place where said retail or wholesale gasoline or oil filling station is supposed to be located, erected or maintained thereon; the measurement of said three hundred (300) feet shall begin at the line of the property on which said retail or wholesale gasoline or oil filling station is to be located, erected, or maintained; provided, however, that in no event shall any station or stations be erected or maintained within two hundred (200) feet of any church or place of worship or of any school, either public, private or parochial; provided, however, that the definition for drive-in retail or wholesale gasoline or oil filling station as prescribed in this ordinance shall be ‘a building or station in which gasoline or oil is sold at retail or wholesale with the pumps on the inside or outside of said building.’

“See. 2. Any person, firm qr corporation violating any of the provisions of this ordinance shall be deemed guilty of a misdemeanor and on conviction shall be fined in any sum of not less than $100 or more than $500 for each offense, and each day’s violation of the provisions of this ordinance shall constitute a separate offense.

“See. 3. Whereas an emergency exists for the immediate passage of this ordinance the same shall be in full force and effect from and after its passage, as provided by law.”

Appellee obtained the property consents required by the ordinance, and made application for a permit to build, but it was refused for the sole reason that the station would, because within 200 feet of a church and a school, violate the ordinance.

This plat shows the relation of the three streets and of the properties in the legend to each other:

(1) Church and school (whole block).

(2) Indian Refining Co. drive-in station.

(3) Plaintiff’s property.

Main Street, the city’s principal busi-, ness thoroughfare, is 50 feet wide, and is here treated as running east and west.

The undisputed facts show that four filling stations that violate the ordinance were maintained from a time prior to the ordinance up to the date of the decree herein; Three more filling stations having curb pumps were so maintained within 200 feet of a church or school building. Numerous other filling stations, either drive-in or curb, were at the time of the adoption of the ordinance and the entry of the decree to be found in the business district of the city. A drive-in stá-' tion, for which a permit was applied oh March 19, 1928, was built and was maintained up to the time of the decree. In October, 1927, five months after the passage of the ordinance, a curb filling station in connection with a garage, with only the width of the street between the pumps and the Francis Vigo public school property, was built under permit and maintained to the time of the decree. No consents from property owners were required as to this station;" The city claims that it acted under the power given by clause 15, section 53, of the Cities Act of 1905, being section 10284 Bums’ Indiana Statutes 1926, which reads:

“The common council of every city shall have power to enact ordinances for the following purposes: * * *

“Fifteenth. To regulate or prevent the storage of gunpowder, tar, pitch, resin, coal oil, benzine, turpentine, hemp, hay,- straw) eotten, nitroglycerin, dynamite, giant powder, petroleum, gasoline, gas or any product thereof, or any other explosive or combustible material or other material which may be deemed dangerous.”

The power given is to regulate or prevent storage of the enumerated articles, evidently because of the danger to persons and property from fires and explosions.

It is claimed that the ordinance is a valid exercise of the power to regulate the storage of gasoline — the only item of clause 15 in any way here involved.

The title to .the ordinance does not mention storage, but the stated purpose is to regulate “the erection, location and maintenance of drive-in retail and wholesale gasoline and oil filling stations.”

The record shows two kinds of filling stations: (a) Curb stations, where the vehicle stops in the street at the curb and is there filled; (b) drive-in stations, where the vehicle leaves the street and is filled on private property. Although it is a matter of common knowledge that pumps are now very generally used at both kinds of stations, yet their presence or absence does not affect the above definitions. The ordinance provides its own definition of the station covered by it, the substance of which is that it is a building in which gasoline or oil is sold, having pumps on the inside or outside. The sole regulatory provision in the ordinance is that the building defined shall not be erected or maintained within 200 feet of any place of worship or school. There is no regulation as to the kind of building to be erected or instrumentality used for the storage of gasoline, or of the methods of handling by which the gasoline is taken in or put out, nor of the quantity of gasoline to be stored, nor of anything that would tend to prevent fires or explosions.

We are of opinion that the ordinance is not one to regulate the storage of gasoline. There is no conceivable careless, dangerous, or even criminal thing that may be done in handling or storing gasoline, either as to place or conditions, that may not be indulged in with impunity so far as this ordinance is concerned. It does not tend to accomplish any purpose for which the power was given in clause 15. In the city’s answer to the bill it says, in part:

“That it had learned from experience that gasoline filling stations, such as proposed by the plaintiff, were becoming so numerous in said city, two of which are owned and operated by plaintiff, as to render the use of the streets and sidewalks hazardous, and that the time had come to place some restraint upon the location of such enterprises, and that it enacted said ordinance and refused the permit to the plaintiff to erect its said station solely as a means of safe-guarding,' as far as possible, the health, lives and limbs of its citizens.”

Another reason stated in the answer is:

“For the purpose of preserving and maintaining in a reasonably safe condition its public streets and sidewalks, and for the purpose of protecting the publie in traveling along and upon its sidewalks.”

The city attorney testified:

“The reason this ordinance was passed was the building of this station at Eighth and Main” (appellee’s).

“The city is dotted all over with filling stations, they are on nearly every corner. The ordinance was passed as a measure to curtail the erecting of filling stations.”

From this evidence and the answer, it appears that the ordinance was not passed to regulate the storage of gasoline, and that the question of danger from fire or explosion from the storage of gasoline did not enter into the considerations that induced the passage of the ordinance.

Although it is admitted that the ordinance does not apply to any curb station, or to any drive-in station unless it is within 200 feet of a house of worship or school, yet the city contends that there is no discrimination as between the drive-in and the curb station because there is a reasonable basis of classification, namely, “that a drive-in filling station necessarily calls for the use of portions of the sidewalks by motor vehicles, such as automobiles, busses and trucks, while a curb filling station does not call for such use of the sidewalks.” It was in this connection that the city, in argument, stressed its proposition that the lives and limbs of the many children attending the school, across Main street from plaintiff’s property, would be endangered by automobiles crossing the sidewalks while going to and from appellee’s filling station.

For many reasons, the thing urged is no basis for a classification. Neither sidewalk crossings nor dangers arising from vehicles crossing the same is mentioned in the ordinance. The evidence indicates that the danger from either of those sources was never considered. The mayor said that there was no objection to the station if the people down there wanted it and the priest consented. A majority of the people within 300 feet indicated their desire by signing the consent required by the ordinance, and the priest said if he could not have a park or a residence he did not object to the station. Seven of the eight trustees of the school did not object.

From May 13, 1927, when the ordinance was adopted, to April 28, 1928, when the decree was entered, no attempt was made to enforce the ordinance and prevent those alleged dangers, even as to the drive-in station shown on the plat above to be situated with reference to the church and school property, as to location and distance, the same as appellee’s. No child going to or from the house of worship or school would pass over the sidewalk crossed by vehicles going to and from appellee’s property, excepting only those, if any, passing along the west side of Ninth street, north of Main.

In State of Washington v. Roberge, 278 U. S. 116, 121, 49 S. Ct. 50, 52 (73 L. Ed. -), the court said:

“Legislatures may not, under the guise of the police power, impose restrictions that are unnecessary and unreasonable upon the use of private property or the pursuit of useful activities.” See Louisville Gas Co. v. Coleman, 277 U. S. 32, 37, 48 S. Ct. 423, 72 L. Ed. 770.

If by any stretch of the imagination the ordinance may be considered as one regulating the use of sidewalk crossings in aid of the regulation of gasoline storage, it is unreasonable and oppressive. Every law is a limitation and burden upon the rights of the people. . Common sense and justice, as well as the Constitution of the United States, require that, so far as may be, the limitations and burdens shall be equal as to all those similarly situated. Louisville Gas Co. v. Coleman, 277 U. S. 32, 37, 48 S. Ct. 423, 72 L. Ed. 770. The limitation under the ordinance, as claimed in argument, is a limitation upon the right to cross sidewalks with vehicles, and, if there was to be any classification it should have included all those who were, or who desired to be, users thereof by crossing with vehicles.

. This ordinance applies only to those who have or who desire to have drive-in stations located within 200 feet of a house of worship or a School. It has been enforced against appellee only. So far as anything in the ordinance affects the question, appellee or any one else having an oil station 201 feet or more from a house of worship or a school could use, without limit, any sidewalk crossing, even though such crossing was within 10 feet or less of the main entrance or exit of any house of worship or school. Every other concern or individual might, unaffected by the provisions of the ordinance, use any sort of a vehicle to cross or reeross sidewalks in transportation for the storage or removal of gasoline, benzine, dynamite, and every other article enumerated in clause 15, without regard to the distance of such- crossing from houses of worship or schools, and when those articles were transported across the sidewalk they might be stored in any manner, in any quantity, within any distance, of such houses of worship or schools. It would be difficult to conceive of an ordinance less calculated to regulate. the storage of gasoline, or to regulate or prevent anything else, except to prevent appellee from building its filling station.

The ordinance is invalid because it denies to appellee equal - protection under the law, and its attempted administration against appellee only is vicious and unlawful.

The decree is affirmed.