November 20, 1939.
Though a gasoline filling station may not be a nuisance per se, the maintenance of a station at a place which by reason of traffic conditions or fire explosive hazard would imperil the public safety would be a "public nuisance," within statute authorizing municipalities to make regulations to prevent, remove, and abate nuisances (Code 1930, sec. 2396).
A finding of the mayor and commissioners of the city of Laurel, supported by evidence, that a proposed gasoline filling station at a particular intersection would imperil the public safety because the streets were heavily traveled and because thousands of pedestrians daily passed along sidewalks on both sides of property at proposed site, was binding on the Supreme Court, and an order refusing to grant permit to construct station could not be disturbed, where it could not be said that finding was manifestly wrong.
APPEAL from the circuit court of Jones county; HON.W.J. PACK, J.
Green, Green Jackson, of Jackson, for appellant.
The City of Laurel, as a municipal corporation was not authorized to adopt the ordinance under which it is sought to deny the petition for the permit.
Ex parte O'Leary, 65 Miss. 80, 3 So. 144; Town of Cuba v. Miss. Cotton Oil Co., etc. (Ala.), 43 So. 706; Desporte v. City of Biloxi, 136 Miss. 542, 100 So. 387; National Refining Co. v. Batte, 135 Miss. 819, 100 So. 388; Fitzhugh v. Jackson, 132 Miss. 585, 97 So. 190, 33 A.L.R. 279; Clinton v. Turner, 95 Miss. 594, 52 So. 261; Alexander v. Graves, 178 Miss. 583, 173 So. 417; Hyma v. Seeger, 207 N.W. 834; Standard Oil Co. v. Minneapolis, 204 N.W. 165; Lane v. Spokane (Wash.), 225 P. 847.
Admitting the validity of the ordinance for argument's sake the record and facts did not justify the denial of the permit.
City of Ellisville v. State Highway Commission et al. (Miss.), 191 So. 274; R.R. Co. v. Cathey, 70 Miss. 332; R.R. Co. v. Boone, 111 Miss. 881; R.R. Co. v. Holsomback, 168 Miss. 493; Tyson v. Utterback, 154 Miss. 381; Williams v. Lumpkin, 169 Miss. 146; Railway Co. v. Coleman, 172 Miss. 514; Y. M.V.R.R. Co. v. Lamensdorf, 178 So. 80; Teche Lines v. Bounds, 179 So. 747; Berryhill v. Nichols, 171 Miss. 769; Mutual Benefit, etc. Assn. v. Johnson, 186 So. 297; Kramer Service v. Wilkins, 186 So. 625, 184 Miss. 483.
We submit that the record here does not justify any conclusion that the use of the property for a modern fire proof filling station with open view for traffic from one street to the other could in any manner affect traffic conditions or fire explosive hazard other than to diminish the actual condition that now exists in Laurel at the intersection of Commerce and Central Streets.
City of Ellisville v. State Highway Commission et al., 191 So. 274.
As we review this record, we submit that the question of the use of the streets and sidewalks is not involved, but the question here is whether the city on this record may refuse to grant a permit for the use of a private lot by this appellant where there is no showing that such use of the private real estate will in any manner endanger the public, either as pedestrians or occupants of vehicles, and where the proof affirmatively shows that traffic conditions and fire hazard will be improved at the particular location.
J.R. Buchanan, of Laurel, for appellee.
The municipal authorities of the City of Laurel, Mississippi were fully authorized to enact the ordinance requiring application for permit for filling station and providing under what conditions such permit might be granted under police powers granted to a municipality.
Sections 2414 and 2434, Code of 1930; Brogan v. Hosey et al., 172 Miss. 869, 161 So. 690; City of Ellisville v. State Highway Commission et al., 191 So. 274; Williams et al. v. Montgomery et al. (Miss.), 186 So. 302.
The enactment of such an ordinance is not violative of the provisions of the 14th Amendment of the U.S. Constitution, nor of the provisions of Sections 14 and 17 of the Mississippi Constitution of 1890.
The physical facts, the plans and specifications, and the testimony introduced in the hearing before the governing body of the City of Laurel, Mississippi, justified the denial of the permit.
Hyma v. Seeger et al., 233 Mich. 659, 207 N.W. 834.
F.B. Collins, of Laurel, for appellee.
The Mississippi Supreme Court has not passed directly upon an ordinance, the provisions of which are identical with the one under consideration, but it has passed upon the proposition that municipalities have full jurisdiction over the streets and sidewalks. The Supreme Courts of other states have passed upon an ordinance, the provisions of which are identical with the one under consideration.
Brogan v. Hosey, 161 So. 690; Summerville v. Keeler, 145 So. 721; 42 C.J. 1306, Section 1213 through 1218; Standard Oil Co. v. City of Minneapolis, 204 N.W. 165; Hyma v. Seeger, 207 N.W. 834; State ex rel. Lane v. Fleming, 225 P. 647.
The foregoing authorities are directly in point and hold that municipalities have the authority under the general police power of the city to prohibit the erection of filling stations at places in the city where by reason of traffic condition or fire hazards their operation will imperil the public safety.
Town of Senatobia v. Dean, 127 So. 773.
The ordinance under consideration does not violate the Fourteenth Amendment to the Constitution of the United States for the reason that the Fourteenth Amendment to the Constitution of the United States does not in any way affect the police power of municipalities or police power of the government.
Fischer v. St. Louis, 194 U.S. 361, 24 Sup. Ct. 673, 48 L.Ed. 1018; Lieverman v. Van de Carr, 199 U.S. 552, 26 Sup. Ct. 144, 50 L.Ed. 305; Standard Oil Co. v. City of Marysville, 279 U.S. 582, 40 Sup. Ct. 430; Gant v. City of Oklahoma, 289 U.S. 98, 77 L.Ed. 1058.
We respectfully submit that the mayor and commissioners were clearly within their rights and within the authority vested in them by law and that the facts in the case justified their finding.
Argued orally by Forrest B. Jackson, for appellant, and by J.R. Buchanan, for appellee.
The City of Laurel has an ordinance requiring persons, firms, or corporations before constructing and operating a filling station within its municipality, to obtain a permit therefor from its mayor and commissioners. The ordinance provides for a hearing of the application for the permit, at which hearing persons opposed thereto may appear and give evidence; and that "If upon the hearing it should appear to the said Mayor and Commissioners that the erection, construction, operation, or maintenance of such a gasoline filling station at the proposed location, by reason of traffic conditions, or fire explosive hazard would imperil the public safety, then the said Mayor and Commissioners shall refuse to grant the permit applied for, but if it shall appear to the satisfaction of the Mayor and Commissioners that no such condition or conditions will result from the erection, construction, operation or maintenance of such station, then the Mayor and Commissioners shall grant such Permit." The appellant filed an application for such a permit; but the Mayor and Commissioners refused to grant it after hearing evidence relative thereto by the appellant and the persons opposed to the granting of the permit.
On appeal to the court below, the order of the Mayor and Commissioners was affirmed. There is no contention by the appellee that the construction and maintenance of this filling station would create a fire hazard.
The appellant's contentions are that: (1) The appellee has not been authorized by the legislature to adopt such an ordinance; and if mistaken in this (2) the evidence does not justify the refusal of the permit requested.
It may be that having invoked the ordinance by asking for a permit thereunder, the appellant cannot at the same time question its validity, but that will be laid aside and no opinion will be expressed thereon. Section 2396, Code 1930, authorizes municipalities "To make regulations . . . to prevent, remove, and abate nuisances." While a gasoline filling station may not be a nuisance per se, the maintenance of one at a place which "by reason of traffic conditions, or fire explosive hazard would imperil the public safety," is unquestionably a public nuisance, and therefore within the statute hereinbefore cited.
Commerce Street intersects Central Avenue at an angle of forty-five degrees, in one of the busiest and most traveled sections of the city. The filling station if permitted is to be on a small lot lying within the acute angle formed by the intersection of these streets. In order to be serviced at the proposed station, automobiles are to be driven onto the lot and parked near one of two gasoline pumps, both of which are to be located near the street intersection and the sidewalk on each of the streets.
The order of the appellee's mayor and commissioners refusing to grant the permit sets forth the following finding of fact: "There is a constant flow of traffic on Central Avenue and Commerce Street at or near said point from twelve to fifteen hours per day and that should a filling station be constructed and operated at said point, on account of the constant flow of traffic and the peculiar location of said station and on account of the small space upon which said filling station is proposed to be constructed there will necessarily be a material congestion and blocking of traffic caused by the operation of such a station and will therefore imperil the public safety of traffic on said streets. Said Mayor and Commissioners doth find further from the testimony that there are thousands of pedestrians daily who pass along the sidewalks on both the north and south side of said property at said proposed site, and that in the practical operation of the said service station there will necessarily be considerable blocking of the sidewalks and a greatly increased use of said sidewalks by vehicles which will greatly imperil the public safety. . . ." This finding of fact is supported by evidence, and therefore must prevail unless we can say with confidence that it is manifestly wrong. This we cannot do. Cf. Hyma v. Seeger, 233 Mich. 659, 207 N.W. 834.