120 Neb. 413 | Neb. | 1930
This is a mandamus action to compel the city of North Platte to issue to the relator a permit to operate a gasoline filling station upon her property located within said city. The city council refused to issue the permit. The trial court granted a peremptory writ of mandamus directing the city to issue the permit. The city appeals.
The city of North Platte has regulated filling stations and oil pumps by ordinance. It was pursuant to the provisions of the said ordinance that the relator herein made application for a permit. The city council held a hearing at which numerous protestants were present in the person
“Article XI. Filling Stations and Pumps.
“Sec. 254. License. It shall be unlawful for any' person, firm or corporation to hereafter engage in the business of operating a filling station for automobiles, or to make a business of selling power or fuel to replenish or operate same, within the city of North Platte, without first having obtained a license therefor.
“Sec. 255. Requirements of Application. Before such license is granted, any applicant shall apply to the mayor and council, describing the location and what, if any, use is contemplated of the adjacent street or sidewalk.
“Sec. 256. Amount of License. Control of Street Retained. When granted, the annual license fee therefor shall be the sum of ten dollars ($10) for each pump that supplies gasoline, fuel or power along the curb, and twenty-five dollars ($25) for each station, regardless of the number of pumps, where motor vehicles, receiving service thereat, customarily drive across the sidewalk or sidewalk line to receive such service, payable in advance, and the city reserves the right of control over any street or sidewalk used in connection therewith, and may make such rules and requirements, with reference to any particular license, in the use of the streets and sidewalks and in the operation of the business, as shall, in the judgment of the mayor and council, be necessary to facilitate traffic, and protect the public and adjacent property owners.
“Sec. 257. Granting of License, When Discretionary. The city further reserves the right to deny any application in a section of the city used exclusively for residential purposes and farther away than one city block from the fire limit district of the city and off the main arteries of travel
It will be noted that this ordinance provides for the operation of gasoline filling stations by those licensed by the city council. It provides that the control of the streets be retained, and regulates the use to be made thereof in the licensing and operation of said filling station. The control herein provided for over the use to be made of the streets and sidewalks contemplates that a reasonable use thereof shall be made by the owner and operator of such filling station. The control of the use of the streets and sidewalks as provided by this provision of the ordinance contemplates such use, and not a prohibition of the same. We are much concerned in our consideration of the controversy here with that section of the ordinance above reproduced relating to the discretionary power of the city in granting a license. The city has reserved the right to deny such application when three conditions are present: First, the location must be in a section of the city used exclusively for residential purposes; second, it must be farther away than one city block from the fire limit district; third, it must be off the main arteries of travel to and from the city. When these three conditions meet in relation to the property for which a license is sought, then the city has retained the right to exercise discrimination in the granting or denial of a permit. The property involved in this case is in a section of the city almost exclusively used for residential purposes, it is farther than one block from the fire limit district of the city, but it lacks the other essential requirement to give the city council discretion in the matter of a permit, in that it is not off a main artery of travel to and from the city. The fact as disclosed by the evidence and not disputed by the respondent is that the property in question is located upon
The city has the undoubted power by ordinance to make all such rules, regulations and resolutions not inconsistent with the law of the state as may be expedient in addition to the special powers granted for maintaining the peace, good government and welfare of the city, and its trade, commerce and manufactures. Comp. St. 1922, secs. 3986-4030. The power conferred under this statute is popularly known as the general welfare clause of the statute. Under it the zoning ordinances in various cities have been adopted. In City of Lincoln v. Foss, 119 Neb. 666, it was held that the city had a right under the police power conferred under this section to pass an ordinance restricting the use of property, if said ordinance has a substantial relation to the public safety, health, and general welfare. This proposition is also supported in this jurisdiction by State v. Withnell, 78 Neb. 33; State v. Edgecomb, 108 Neb. 859; and Pettis v. Alpha Alpha Chapter of Phi Beta Pi, 115 Neb. 525. In Standard Oil Co. v. City of Kearney, 106 Neb. 558, this court said that, in the exercise of the police power delegated to a city, it is generally for the municipal authorities to determine the rules, regulations and ordinances that are required for health, comfort and safety of the people, but their action is subject to the scrutiny of the courts. In that particular case, the ordinance was held void as being an arbitrary, unreasonable, and discriminatory exercise of the police power. The power and the authority of the city to pass such an ordinance is well defined in the foregoing cases. However, the city of North Platte is asserting the validity of the ordinance in question by its enforcement
However, the respondents in this case contend that the statutes of the state grant and confer upon the municipality control of the streets, and for that reason the city had the right to reject the application of the relator, regardless of any ordinance. This power is granted under sections 4076 and 4077, Comp. St. 1922. It is the theory of the respondents that, under this authority conferred upon the city, it could refuse a permit to the relator to operate a filling station on her property. In Kenney v. Village of Dorchester, 101 Neb. 425, it was held that the right of a private party to occupy part of a public street in front of his place of business must yield to public necessity or convenience, and a question of public necessity or convenience is for the governing body of the municipality, but such body cannot act arbitrarily and deny to one citizen a privilege which is granted to another under like conditions. In this case, the
Another assignment of error has to do with the procedure followed by the trial court. It is strenuously urged that the trial was held with undue and unusual haste. The record discloses that this case was filed October 23, 1929. This matter had previously been before the city council, and the city attorney and the special attorney for the city were familiar with it, having appeared there. Six days intervened from the filing of the petition and the granting of the peremptory writ. One of the attorneys was engaged in the trial of another case continuously. The attorneys had all of the documents and records in their possession, including the ordinances relative to this matter, which they claim were not properly introduced in evidence. The matter of setting trials is in the discretion of the trial court. A peremptory writ of mandamus might have been granted by the trial court without notice, particularly in a case where a public official has failed to discharge an official duty and action is imperative, as in this case. Horton v. State, 60 Neb. 701. A motion for new trial was filed in this case in which evidence was taken which does not disclose that the city attorney could not have secured the evidence there introduced, which was largely cumulative. It is not discernible wherein the respondents were prejudiced by a failure to secure any evidence.
In conclusion, we take note of the contention of the city that the ordinance in question was not introduced in evidence. It was pleaded and set out in full in the petition of the relator. In a pleading filed by the city attorney, designated “Objections to Issuing Writ” which was treated by
The judgment of the trial court is in all respects
Affirmed.