State ex rel. Moore Oil Co. v. Dauben
State ex rel. Moore Oil Co. v. Dauben
Opinion of the Court
The primary question involved in this case is whether the structure proposed to be erected by the relator comes within the inhibition of ordinance Number 28932 of the city of Columbus. That ordinance was passed by the council of the city of Columbus on July 19, 1915, and approved by the mayor of the city on July 23, 1915. At that time the relator was maintaining and operating a gasoline and oil filling-station at the location now in question, being a lot at the corner of Twenty-first and Broad streets in sáid city, with a frontage of seventy feet on Broad street and extending to the alley, a depth of about one hundred and eighty-seven feet. For such purpose the relator had theretofore constructed and was then using in the operation of such station a one-story metal building, with underground gasoline tanks having a total capacity of two thousand gallons. It now proposes to erect a new building
Statutes or ordinances of a penal nature, or which restrain the exercise of any trade or occupation or the conduct of any lawful business, or which impose restrictions upon the use, management, control or alienation of private property, will be strictly construed and their scope cannot be extended to include limitations, not therein clearly prescribed; exemptions from such restrictive provisions are for like reasons liberally construed. 36 Cyc., 1180, and cases cited, and 2 Sutherland on Statutory Construction (2 ed.), Section 356.
The ordinance in question here makes it unlawful to locate, build, construct, erect, maintain or operate any public gasoline or oil filling-station on or within 187½ feet of the curb line of any street in a residence district of the city, or to construct or maintain a driveway from the street over the curb and sidewalk to such station, without first
There can be no contention that the relator was in any wise precluded from continuing the operation of its plant as constructed and in operation prior to the passage of such ordinance. It is clearly exempt from the provisions of Section 1 by the terms .of Section 3 of the ordinance. It does not appear from the record that within thirty days subsequent to the passage of the ordinance protests were filed against the further operation of the station .of the relator, hence we have not here for consideration the validity of that provision in Section 3.
It is contended 1;y the defendant that the provisions of Section 1 are applicable and preclude the improvements proposed to be made by the relator. Where the lawmaking body declares its own intention in the enactment of a particular law, or defines the sense of the words, employed, it is within the exercise of its legislative power, and its
For the purpose of an interpretation of Section 1 it is entirely immaterial whether or not the latter part of Section 3 is invalid, as being an unlawful delegation of legislative power. The provision excepting an owner or operator of a filling-station theretofore erected is as clear and explicit as is the provision prohibiting the erection and maintenance of such stations 'without procuring the designated consents. Presumably the prohibition would not have been enacted without the exemption, and the one cannot be enforced and the other disregarded. They must be construed together, and, as we have seen, the clause granting exemption from penal and restrictive provisions must be liberally construed. The presumption obtains that the ordinance is to operate only prospectively; but the legislative body was not content to rest upon that
The construction of the ordinance contended for by the defendant would preclude the reinstallation of a removed portion of such station and prevent restoration of a building damaged or destroyed by fire or otherwise. If changes or improvements of such station were to be forbidden, presumably language would have been used making such further restrictions. The effect of .language employed in restrictive provisions will not be extended by construction, but the operation of such provisions will be limited by the natural import of the terms employed. Section 1 of this ordinance seems to have been designed expressly to apply only to gasoline or oil filling-stations erected and established after the passage of the ordinance, and when limited, as it is, by the provisions of Section 3, can have no other application.
The judgment of the court of appeals is reversed and judgment rendered for plaintiff in error.
Judgment reversed and' judgment for plaintiff in error.
Reference
- Full Case Name
- The State, ex rel. The Moore Oil Co. v. Dauben, Building Inspector
- Status
- Published
- Syllabus
- Construction — Penal statutes or ordinances strictly construed, when ,— Restrictions on trades, occupations or businesses — Exemptions liberally construed, when — Ordinance prohibiting gasoline and oil filling-stations — Consents of property owners unnecessary, when — Repair or remodelling of existing structure— Mandamus —Refusal of permit by building inspector. 1. Statutes or ordinances of a penal nature, or which restrain the exercise of any trade or occupation or the conduct of any lawful business, or which impose restrictions upon the use, management, control or alienation of private property, will be strictly construed. and their scope cannot be extended to include limitations not therein clearly prescribed; exemptions from such restrictive provisions are for like reasons liberally construed. 2. Under the provisions of a city ordinance making it unlawful to locate, build, erect, construct, maintain or operate a public gasoline or oil filling-station in a residence district without first procuring the written consent of two-thirds of the owners of property within a specified distance therefrom, but exempting any owner or operator of any such station theretofore erected, such owner is not required to procure the consents of property owners before he may repair, remodel or rebuild such preexisting gasoline or oil filling-station. 3. Where an application is made by the owner of such preexisting station to the city building inspector for a building permit, and such inspector finds the plans and specifications submitted to be in conformity to law and the ordinances of the city, arid approves them, but refuses the permit on the sole ground that the consents of property owners have not been procured and filed, a writ of mandamus will issue upon the application of the owner requiring the issuance of a building permit.