Martin v. City of Danville

Prentis, P.,

delivered the opinion of the court.

The facts of this'case are sufficiently stated in the dissenting opinion.

Our conclusion is that all of the questions here raised have been, in effect, and for sufficient reasons, decided adversely to the contentions here made by the plaintiff in error by the decisions of this court and those of the Supreme Court of the United States. Among these are, the refusal of this court, on the 31st day of March, 1925, to award this petitioner a writ of mandamus against the city of Danville, requiring the issuance of a permit to use the identical lot for purposes prohibited by the same ordinance which is here involved, and upon substantially the same grounds upon which the demurrer is based in this case (128 S. E. 927); Gorieb v. Fox, 145 Va. 554, 134 S. E. 914, which was affirmed by the Supreme Court of the United States on the 31st day of May, 1927 (47 S. Ct. 675), 71 L. Ed.-; Euclid v. Ambler Realty Co., 272 U. S. 365, 71 L. Ed. 175, 47 Sup. Ct. 114; Welch v. Swasey, 214 U. S. 91, 29 S. Ct. 567, 53 L. Ed. 923; Zahn v. Board of Public Works, - U. S. —, 71 L. Ed.-, 47 S. Ct. 594, June 1, 1927, page 704.

In the latest case decided by the Supreme Court of the United States (Gorieb v. Fox), referring to the question of reasonableness, which generally arises in such cases, this is said: “State legislatures and city councils, who deal with the situation from a practical standpoint, are better qualified than the courts to determine the necessity, character and degree of regulation which these new and perplexing conditions require; and their conclusions should not be disturbed by the courts unless clearly arbitrary and unreasonable.”

It must be conceded that the city of Danville, under the Virginia statutes, has the authority to regulate the location of gasoline filling stations. It has undertaken to do so by an ordinance which follows closely the Chicago ordinance, prohibiting bill boards, which was reviewed and upheld by the Supreme Court of the United States in Thomas Cusack Co. v. Chicago, 242 U. S. 526, 61 L. Ed. 472, L. R. A. 1918A, 136, 37 Sup. Ct. 190, Ann. Cas. 1917C, 594. The Danville ordinance clearly prohibits the erection of gasoline stations in the city of Danville at locations in residential sections like that upon which the plaintiff in error insists here that be has the right to erect such a station. As in the Chicago ordinance, however, there are exceptions in its application-—that is, it is provided that such stations may be erected if the written consent of a certain proportion of the property owners abutting on the street in the immediate vicinity (500 feet in each direction) is first secured. The prohibition is general and applicable to all who are similarly situated, but is subject to exceptions in favor of all who cán 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.” Gorieb v. Fox, supra.

It is a settled rule of the Supreme Court of the United States, if the question 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. Zahn v. Board of Public Works, supra.

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. It follows that the conviction will be sustained.

■ Affirmed.