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376, 132 Am. St. Rep. 527, 120 N. W. 991, 16 Ann. Cas. 720; Los Angeles County V. Hollywood Cemetery Asso. 124 Cal. 344, 71 Am. St. Rep. 75, 57 Pac. 153; Seattle v. Dencker, 58 Wash. 501, 28 L.R.A. (N.S.) 446, 137 Am. St. Rep. 1076, 108 Pac. 1086.

One of the able and distinguished attorneys for the defendant, Standard Oil Company, who argued the case in this court, with persuasive logic, contended that monopoly came from two Greek words meaning "sole seller;" that the six present sellers would be the sole sellers for all time in perpetuity, excluding the Standard Oil Company, and this was

a monopoly; a wrong done to a legitimate business, so declared by this court. To all of which we agree. It may be said, in reference to defendant, by way of pleasantry:

"The Devil was sick, the Devil a monk would be;

The Devil was well, the Devil a monk was he."

We will not discuss the anomaly of plaintiffs bringing an action to enforce its own ordinance, praying injunctive relief, but decide the case on its merits, as the point is not raised by the parties.

For the reasons given, the ordinance is void. The judgment of the court below is affirmed.

ANNOTATION.

Public regulation or authorization of gas filling stations. [Gasolene Stations, § 1; Municipal Corporations, § 117.]

The present annotation is supplemental to those in 18 A.L.R. 101; 29 A.L.R. 450; 34 A.L.R. 507; 42 A.L.R. 978; and 49 A.L.R. 767, where the earlier cases may be found.

V.

The reported case (CLINTON STANDARD OIL Co. ante, 252), it is to be noted, holds that an ordinance prohibiting the erection of any more oil or gasolene filling stations within fire district, in which there were already six such stations, is void for the reason that it is prohibitory, not regulative, in its nature, and discriminates against others, giving a monopoly to those already carrying on the business in the district.

City has authority to regulate the location of gasolene filling stations, under statute providing that for the promotion of the health, safety, prosperity, morals, comfort, and general welfare of the general public, the council, or other governing body, of any city, may divide the area of the city into one or more districts, and may regulate and restrict the location of buildings and other structures, and the trade, industry, residence, and other specific uses of the premises in such district or districts. Martin v.

Danville (1927) — Va. -, 138 S. E.

629.

So, also, under police power delegated by statute to municipalities, authorizing them, by ordinance, "to regulate the use, storage, sale, and disposal of inflammable or combustible materials, and to provide for the protection of life and property from fire, explosions, and other dangers," a borough may, within reasonable limitations, regulate the business of storing and selling gasolene within its boundaries, defining where and how gasolene stations shall be constructed and operated, as by forbidding the erection thereof in certain places. Morgan v. Collingswood (1927) — N. J. L. 139 Atl. 718. Such power must, however, be exercised reasonably, not arbitrarily, and the regulation or restriction, in order to be valid, must have some substantial tendency to promote the public safety, health, or general welfare. Ibid.-citing cases.

On the other hand, it has been held that power given by zoning act to a city to "regulate and restrict" the erection of buildings within districts established by it does not authorize it to prohibit a filling-station building within a given zone. Dart v. Gulfport (1927) Miss., 113 So. 441. Said the court: "The power to restrict is

not the power to destroy; the power to restrict is not the power to prohibit. In the ordinance in question, and in the answer, the city concedes that the commissioners and governing board of the city of Gulfport assumed to prohibit the erection of buildings and the carrying on of trade and commerce therein, for the purposes which normally and naturally such buildings may be used, and which, so far as this record shows, were proposed to be used for the carrying on of a perfectly valid business, not shown to be a nuisance. . . . The power delegated by the legislature is to regulate and restrict. We have before remarked that the power to restrict does not mean to destroy or prohibit. The words 'to regulate and restrict' do not grant the power to prohibit. For the reason that the ordinance directly, specifically, and admittedly undertakes to prohibit the erection of buildings to be used in the carrying on of a lawful business within a proposed area, it is invalid, and cannot be upheld, simply because the legislature did not grant to the city of Gulfport, nor to any other municipality,

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. . the power to prohibit the erection of the class of buildings therein described; the power granted was to regulate and restrict, which, in our opinion, cannot be distorted into meaning the power to prohibit. The serious question as to the constitutionality of the zoning act we decline to pass upon at this time, because the case, as above indicated, is disposed of here without a review of the authorities in this state and elsewhere, as to the constitutionality of this zoning act. Municipal Municipal authorities should bear in mind that there are different limitations in different Constitutions of the various states, and that when they undertake to exercise the authority granted by the legislature they are dealing with a most grave and delicate question, and should confine themselves to the authority expressly granted by the legislature. In the instant case the ordinance is invalid and void, because it exceeds the power granted by the act in question."

An ordinance of a city establishing 55 A.L.R.-17.

districts within which gasolene filling stations cannot be constructed and operated is a valid exercise of the police power of the city, and will be upheld where it is not shown that it is unreasonable or arbitrary or without uniformity in its application. Muskogee v. Morton (1927) 128 Okla. 17, 261 Pac. 183. It follows that such an ordinance is not invalid as taking one's property without due process of law, contrary to state and Federal Constitutions. Ibid.

Enforcement of ordinance establishing districts within which gasolene filling stations cannot be constructed and operated is not unreasonable and arbitrary as applied to property within 300 feet of which is a church, residence, and several apartment houses, -the locality being essentially residential in character, and it being evident that the operation of a filling station upon the property would annoy and disturb the surrounding inhabitants, and depreciate the desirability and value of the surrounding homes. Ibid.

Zoning ordinance establishing residential district in village is a reasonable exercise of the power conferred upon village by the legislature, as applied to the erection and installation of a gasolene filling station in locality largely not built up, but laid out for residences, and in which some residences had been erected, but no business buildings except of a temporary character, such as lunch stands and the like, it was held in the case of Western Springs v. Bernhagen (1927) 326 Ill. 100, 156 N. E. 753. See also Clinton v. Donnelly (1927) 203 Iowa, 576, 213 N. W. 262, which, however, is concerned with the validity of an ordinance forbidding the storage of more than 5 barrels of gasolene without a permit.

Ordinance forbidding the construction and operation of any filling station within 500 feet of any dwelling house is not unreasonable upon its face, nor is it unreasonable as applied to property within a radius of 500 feet of which there are thirty nine dwelling houses, and which is so located that a filling station thereon would

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City ordinance prohibiting the erection of motor-vehicle service station, for the sale of gasolene, etc., on lot any part of which is situated within a radius of 200 feet of any public school, or other school giving regular instruction, hospital, church, theater, public library, or public art museum, is valid, as a legitimate exercise of the police power of a municipality. SavitzDenbigh Co. v. Bigelow (1927) — N. J. L. 137 Atl. 439. To the same effect was the earlier case by the same name, as reported in (1926) - N. J. L. 134 Atl. 557 (set out on p. 769 of the earlier annotation in 49 A.L.R.), affirmed without opinion in (1928) N. J. L., 140 Atl. 921.

An ordinance of a city prohibiting the erection of a gasolene filling station within a certain district of such city, without first obtaining the written consent of the owners of two thirds of the property estimated by front footage thereof, lying within 300 feet of the proposed station, is not invalid by reason of such provision. Muskogee v. Morton (Okla.) supra. Said the court: "Without this provision in the ordinance, the erection of a filling station on plaintiff's lots stood prohibited, and the questioned provision of the ordinance does not authorize the citizens to curtail any right of the plaintiff, but only gave to them the power to bestow upon him a privilege which he otherwise did not enjoy."

And the constitutionality of an ordinance has been sustained, which, being passed under authority of statute, made it unlawful to erect or maintain (in any location then not used for such purposes) any public gasolene or oil filling station, in any locality where three fourths of the buildings on both sides of the street for a distance of 500 feet in either direction from the proposed location of the filling station are used exclusively for residence purposes, without first securing the written consent of two thirds of the owners of property abutting on the

street for a distance of 500 feet in either direction. Martin v. Danville (1927) Va. -, 138 S. E. 629, supra (Campbell, J., dissenting). Said the court: "The prohibition is general and applicable to all who are similarly situated, but is subject to exceptions in favor of all who can meet the conditions imposed. The council unquestionably has the power to make the inhibition absolute, and to allow no exceptions; but it has, in this instance, in its discretion, declined to exercise this plenary power. It seems to us clear that, because the greater includes the less, it must follow that the power to make the prohibition absolute includes the power to impose reasonable conditions and to allow such exceptions. However this may be, we cannot say that the ordinance under review is 'clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, morals, or general welfare.' . . . It is a settled rule of the Supreme Court of the United States, if the qquestion of reasonableness is fairly debatable, to hold that it will not substitute its judgment for that of the legislative body charged with the primary duty and responsibility of deciding the question. .. We are therefore of opinion to sustain the ordinance under review as constitutional. In this we simply agree with and follow the Supreme Court of the United States, the final arbiter of such questions."

Permit granted for the erection of a gasolene filling station without the consent of the necessary number of property owners within certain area, required by zoning ordinance, is without jurisdiction and of no effect. Atkins v. West (1928) 222 App. Div. 308, 226 N. Y. Supp. 335; Hacker v. Board of Appeals (1928) 223 App. Div. 196, 227 N. Y. Supp. 627.

Zoning ordinance the effect of which is to prohibit the erection of a gasolene filling station within certain area may be validly passed after the making of application for permit; the fact that application for permit was made prior to enactment of the ordinance gives to applicant no vested right to permit. State ex rel. Manheim v. Har

rison (1927) 164 La. 564, 114 So. 159. Compare Penn Oil Co. v. Erie (1924) 5 Pa. D. & C. 203, taking the opposite view, where all requisites for permit had been complied with prior to enactment of the ordinance.

But the passage of a city zoning ordinance after a final judgment fixing the rights of parties at the time of its rendition cannot avail to disturb the rights acquired by virtue of that judgment. State ex rel. Hundley v. Alexandria (1927) 164 La. 624, 114 So. 491 -following the case of Shreveport v. Dickason (1926) 160 La. 563, 107 So. 427 (set out on p. 772 of the earlier annotation in 49 A.L.R.). See also State ex rel. Calvary Baptist Church v. Alexandria (1927) 164 La. 628, 114 So. 492.

Permit by city to erect filling station does not prevent the city from abrogating rights thereunder by valid ordinance prohibiting erection of such a structure within certain limits embracing the lot in question. Dart v. Gulfport (1927) Miss., 113 So. 441, supra (wherein particular ordinance was held invalid as being beyond authority delegated to city by zoning act, for the reason above appearing).

Permit granted for the erection of a gasolene filling and oil station was not affected by subsequent enactment of city zoning ordinance—which, if enforced, would have invalidated the permit-where still later ordinance validated all all outstanding permits which should have been substantially complied with, or exercised, by certain date, and the permit for station in question was in fact so complied with, or exercised. St. Bernard Oil Co. v. New Orleans (1928) · La. - 115 So. 817.

Requirement of validating ordinance, that the "erecting, establishing, or operating" of station must have begun by certain date, was substantially complied with, notwithstanding actual construction of building had not begun at the date set, where, before that time, a contract had been entered into for the erection of said station, garages previously located upon the site had been demolished and

removed, $3,000 had been expended in clearing the site, etc., not including the purchase price of the lot, and preparations had been made to have material delivered, and where the only reason actual construction of the building had not been begun was that delivery of the materials by truck had been rendered impossible, due to street-paving operations by the city adjoining the property and the impassability of intersecting streets. Ibid. Said the court: "Plaintiff company has endeavored in good faith, and as far as could be reasonably expected, to comply substantially with its building permit by the commencement of the erecting and the establishing of its oil station on its property."

City's requirement for removal of filling-station driveway, the construction of which had been previously authorized without due consideration of the amount of traffic on street, and with express reservation of the right to revoke the permit at any time, has been held not to be an unreasonable exercise of the police power, and therefore not in contravention of either §§ 1, 11, and 58 of the Constitution of Virginia, or art. 14, § 1, of the Constitution of the United States. Wood v. Richmond (1927) Va. 138 S. E. 560.

Under the rule that an ordinance designed to restrict the use of property must be strictly construed, it has been held that the words "situated within a radius of 200 feet of (1) a public school," etc., as used in an ordinance prohibiting the erection of motor-vehicle service station on lot any part of which is situated within a radius of any public school, or other school giving regular instruction, hospital, church, theater, public library, or public art museum, mean within a radius of 200 feet of the building in question, and not the nearest point of the curtilage, so that ordinance was inapplicable where nearest corner of nearest building of nature specified in ordinance was in excess of 200 feet from lot on which it was proposed to locate service station, though it was less than 200 feet to the nearest corner of the tract upon which such

building was located. Savitz-Denbigh quently leased. Ibid. As stated in the

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Co. v. Bigelow (1927) N. J. L. 137 Atl. 439, supra.

Under zoning ordinance authorizing board of appeals to vary provisons thereof where there are "practical difficulties or unnecessary hardships" in the way of its strict enforcement, the mere fact that more profit may be derived from certain property in district zoned as residential, if a gasolene station is erected upon the property, instead of using it for residential purposes, is not a sufficient basis for the claim of property owner that to refuse his application for the erection of station thereon is an unnecessary hardship on him. Falvo v. Kerner (1927) 222 App. Div. 289, 225 N. Y. Supp. 747. In mandamus proceedings to compel the issuance, by building commissioner, of permit for the erection of a gasolene filling station, answer admitting compliance with all requirements of building code, other than a certain stop-gap zoning ordinance, which, if in full effect, would deny right to the permit, did not allege a valid defense to the petition, where it was shown that the effective date of such stopgap ordinance had been suspended until an affirmative vote thereon should have been rendered by the voters upon referendum validly submitted to them. State ex rel. Gaede v. Guion (1927) — Ohio St., 158 N. E. 748. In street.

See also the case of Wood v. Richmond (1927) 148 Va. 400, 138 S. E. 560, as set out supra.

An abutting owner is not entitled, as a matter of right, to a permit to erect a gasolene pump and tank in a public street. Silvester v. Princeton (1927) - N. J. L., 139 Atl. 517. And see cases hereinafter cited.

A permit granted by a municipality to an owner of real property abutting upon a public street, to erect gasolene pumps in such public street, constitutes a mere revocable license. Rowe v. Cincinnati (1927) - Ohio St. —, 159 N. E. 365, dismissing petition in error from (1927) - Ohio App. 159 N. E. 492.

And the same is true, as against one to whom the premises were subse

syllabus by the court: "A lessee from an owner of real property abutting upon a public street acquires no right by virtue of his lease of such abutting property, which entitles such lessee permanently to appropriate any part of such public street to use for private business purposes."

An ordinance which in substance provides that all gasolene pumps, gasolene filling stations, or other automotive services which are maintained and operated in or upon any sidewalk or sidewalk spaces of a municipality, are declared to be obstructions to public travel and public nuisances, and directs the abatement of the same by the officials of the municipality, and makes it a misdemeanor to fail to remove, or to maintain, or to operate, any such pumps, filling stations, or other automotive services in such sidewalks or sidewalk spaces, is a valid and constitutional enactment, and does not contravene article 14, § 1, of the Amendments to the Constitution of the United States, nor article 1, § 19, of the Constitution of the state of Ohiosince no property rights are involved. Ibid.

Again, it has been stated that, while the erection of gasolene pumps between the graded portion of street and lot line of abutting owner may have been made with the consent and knowledge of the individual members of city street committee, this would in no manner estop the city from enacting an ordinance, general in its character, requiring the removal of such encroachment and all others of a similar nature. Pierce v. Schramm (1927) Neb., 216 N. W. 809.

However, in neither the passage nor enforcement of such an ordinance, or otherwise, can the city arbitrarily select one property owner to whom the privilege is denied, while allowing it to others similarly situated. Ibid.the court citing as controlling the case of Kenney v. Dorchester (1917) 101 Neb. 425, 163 N. W. 762 (set out on p. 452 of the earlier annotation in 29 A.L.R.), wherein it was held: "The right of a private party to occupy part of a public street in front of his place

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