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[3]    292 S.W.2d 735, 200 Tenn. 480

[4]    July 20, 1956


[6]    'It shall be unlawful for any person, firm or corporation to install within the city any underground tanks for the storage of gasoline or other flammable liquids, having a capacity of more than 1,100 gallons and not more than three such tanks shall be installed on the same premises.

[7]    'The Board expressly declares it is its intent by the adoption of this section to preserve the public health and safety of the citizens of Pulaski by regulating the capacity of underground storage tanks.'

[8]    The Chancellor upheld the validity of the ordinance and dismissed the bill and this appeal resulted.

[9]    The bill charges that the ordinance violated the Fourteenth Amendment to the Constitution of the United States by depriving complainant of the use of its leased property in Pulaski without due process of law and denying complainant the equal protection of the law, because the ordinance allows previously existing filling stations to operate while at the same time it prohibits complainant from operating a filling station, except where the storage tanks are not more than 1,100 gallons.

It further contends that the ordinance violates Article 11, Section 8 of the Constitution of Tennessee in that it is class legislation granting to the operators of previously existing filling stations privileges, immunities and exemptions not granted to complainant and others similarly situated; that the ordinance stifles competition and tends to create a monopoly in favor of previously existing filling stations.

The bill further charges that the ordinance limits the capacity of tanks to 1,100 gallons, whereas the State Fire Marshal's regulations limit capacity of each tank to 6,000 gallons with a total capacity of 20,000 gallons for all tanks, and the ordinance purports merely to prohibit the installation of certain tanks, whereas there is little, if any, danger involved in the installation of tanks and the danger arises from the filling of tanks and small tanks require more frequent filling than large tanks.

It appears that complainant, in May 1955, leased certain property located within the City of Pulaski for a period of five years beginning August 1, 1955, for the purpose of building a filling station on the property to be used by complainant in the conduct of its business. In July 1955, complainant applied to the defendant for a permit authorizing it to construct on this property a filling station and to install three underground tanks for the storage of petroleum products, two of which tanks were to be of a capacity of 4,000 gallons and one of a capacity of 2,500 gallons. This application was denied as to the installation of the underground tanks because of Section 9-0205 of Title 2 of the Code of Pulaski. The City does not have the legal authority by statute to regulate the installation of underground tanks for the storage of petroleum products. The ordinance was passed by the defendant in the exercise of its general police power.

It is conceded that the ordinance in question had been in force seven years before the complainant leased the property in question and that he had notice of its existence at the time he leased said property.

There can be no doubt as to the general right of the City to pass an ordinance to prevent fires or explosions and such ordinances are well within the police power of the City, but this is not the question made here.

It is conceded by the complainant that the City had the right to pass such an ordinance but if such ordinance discriminates against the complainant without any basis it is void. It contends that there are several other operators in Pulaski, who are now permitted and whose privileges were not taken away by passage of this ordinance to have underground tanks several times the maximum capacity provided for by the ordinance in question, to wit, 1,100 gallons. It is conceded that this ordinance would be valid if it were an initial proposition.

The Chancellor observed that we had no direct holding in Tennessee on this question here presented but was of the opinion that our zoning cases controlled and applied the rule in zoning cases as announced by this Court in Spencer-Sturla Co. v. Memphis, 155 Tenn. 70, 290 S.W. 608, that the ordinance in question was a valid exercise of the police power.

It should be noticed that in the case just cited the ordinance was by virtue of an act of the legislature and ...

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