Cabassa v. Ramón Rivera

68 P.R. 654
CourtSupreme Court of Puerto Rico
DecidedApril 29, 1948
DocketNo. 9617
StatusPublished

This text of 68 P.R. 654 (Cabassa v. Ramón Rivera) is published on Counsel Stack Legal Research, covering Supreme Court of Puerto Rico primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cabassa v. Ramón Rivera, 68 P.R. 654 (prsupreme 1948).

Opinion

Mr. Justice Marrero

delivered the opinion, of the Court.

On August 16, 1947, the District Court of Mayagüez granted a petition for a preliminary injunction pendente lite filed by the plaintiff, and directed the defendant, Luis Ramón Rivera, his subordinates, attorneys in fact, agents, employees, and persons acting on his behalf and representing him, to refrain from continuing the construction, modification, or improvement of the premises owned by the defendant, which are mentioned in the petition, with the purpose of installing therein a pump for the sale of gasoline. Peeling-aggrieved by that decision the defendant has appealed to this Court.

[656]*656The record shows that Regino Cabassa filed in the said court a petition for injunction in which he alleged that ever since 1927 he has been uninterruptedly engaged in the purchase and sale of gasoline for motor vehicles, and that during all that time he has maintained a pump for the sale of gasoline to the public; that on March 13, 1946, the Municipal Assembly of Mayagüez, by a unanimous vote, passed an ordinance “to regulate the installation of gasoline pumps and stations, within the urban zone of Mayagüez; to establish penalties for violations thereof, and for other purposes”; that the defendant applied to the Board of Administration of the Municipality of Mayagüez for a permit to install, construct, and operate a gasoline pump in the premises owned by him, located at No. 42, Santiago R. Palmer Street, of said city, and that on November 21 of the same year the said board granted to him the requested permit; that when the petitioner learned of the granting of such permit, he submitted to the,Board a written opposition, requesting that the above-mentioned permit be reconsidered and that defendant’s application be finally denied; that during the pendency of petitioner’s opposition, the defendant applied to the Insular Fire Service of Puerto Rico for a temporary permit, which was granted on January 31,1947, to reinstall a tank and pump for selling gasoline in the above-mentioned premises; that on February 14 following, a hearing on-petitioner’s opposition was held and, as a result thereof, the Board of Administration of Mayagüez revoked the permit granted to the defendant; that meanwhile the Insular Fire Service of Puerto Rico revoked the permit granted to the defendant and in lieu thereof it issued to him a new temporary permit to construct a gasoline station in the said premises; that notwithstanding the revocation by the Board of Administration of the Municipality of Mayagüez of the permit granted to him, the defendant, with the deliberate purpose of ignoring the provisions of said ordinance, and unlawfully creating a public nuisance, on July 4, 1947, started the work for the [657]*657installation of a tank and pump for the sale and storage of gasoline in the premises already mentioned; that the pump so installed by the defendant lies at a distance of 53.5 meters from the pump belonging to the petitioner, at 118.5 meters from another pump existing in Post Street of Mayagiiez, at 110 meters from Teatro Yagüez, at 100 meters from the Mu-ñoz Rivera Public School, at 110 meters from the City Hall of the Municipality of Mayagüez, and at 120 meters from the Adolphia Lodge of Mayagüez; that the construction and installation of said gasoline pump by the defendant constitute a public nuisance because it endangers the life and safety of the persons who reside near said place; and that the defendant is violating the provisions of said ordinance, and has sought to establish an unlawful competition with the business of the petitioner, who has a vested right and to whom the operation of the defendant’s pump for the sale of gasoline would cause irreparable injury.

The defendant, on his part, alleged that the petition did not state facts sufficient to constitute a cause of action (a) because it was based on a void ordinance, and (b) because municipal ordinances derive validity, either from an inherent power of the municipality to enact them, from a power to promulgate them under its charter, or from the grant to it of an express power therefor by the Legislature of Puerto Rico. He further maintained that the ordinance of the Municipality of Mayagüez is in conflict with Act No. 158 of 1942, as amended by Act No. 38 of May 4,1944, creating the Insular Fire Service; that the power to issue licenses is not inherent in a municipality; that in the municipal ordinance which serves as a basis for the action brought, no power is conferred on the administrative board to revoke a license previously granted; that the ordinance in question discriminates among the persons who engage in the sale of gasoline in the city of Mayagüez; and that said ordinance seeks to create monopolies or privileges in favor of some vendors and against the others.

[658]*658The questions of law raised by the defendant were amply argued and the lower court, as we have already indicated, granted the petition for a preliminary injunction. In support of his appeal the defendant urges that the lower court erred (1) in deciding that the municipal ordinance in question was valid and that the Municipal Assembly of Mayagiiez had power to enact it, pursuant to the Municipal Law; (2) in deciding that the municipal ordinance is not in conflict with the Act of the Legislature creating the Insular Fire Service and that on the contrary both enactments may be harmonized and enforced; and (3) in deciding, contrary to the allegations of the defendant, that the ordinance in question does not create any discrimination among the persons, who engage in the sale of gasoline in Mayagiiez, nor establish monopolies or privileges.

It is unquestionable that, pursuant to the provisions 'of § 7 of Act No. 53 of April 28, 1928 (Laws of 1928, p. 334), as amended by Act No. 294 of April 10, 1946 (Laws of 1946, p. 756),1 the Municipal Assembly of Mayagiiez has full power to enact an ordinance to regulate the installation or reconstruction of gasoline stations, within its jurisdiction. On the other hand, the regulation of gasoline pumps is clearly within the police power of the municipality. Orme v. Arlas Gas [659]*659& Oil Co., 217 Minn. 27, 13 N.W. (2d) 757, 762; Shuford et al. v. Town of Waynesville et al., 214 N. C. 135, 198 S. E. 585 and State v. Peterson, 239 Wis. 599, 2 N. W. (2d) 253.

In discussing tlie first error assigned the appellant also contends that the title of the ordinance is inconsistent with its body. Said title reads as follows “Ordinance to regulate the installation of gasoline pumps and stations within the urban zone of Mayagiiez; to establish penalties for violations thereof; and for other purposes. ’ ’ The language of the ordinance convinces us that its body is fully in harmony with its title. Of course, in order to regulate it is frequently necessary to restrict, and the fact that the installation, reconstruction, and operation of new pumps without a permit is prohibited does not mean there is no regulation involved.

In support of the above-mentioned assignment the appellant further maintains that the ordinance is unreasonable and that it has not been promulgated in good faith. The decision of the lower court was rendered on the basis of the questions of law raised and after a certain documentary evidence was submitted to it. From the examination we have made of the pleading and of the evidence, we would not be warranted in reaching the conclusion that the ordinance has prima facie the defects alleged.

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Related

Orme v. Atlas Gas and Oil Co.
13 N.W.2d 757 (Supreme Court of Minnesota, 1944)
Shuford v. Town of Waynesville
198 S.E. 585 (Supreme Court of North Carolina, 1938)
Klingensmith v. Siegal
224 N.W. 680 (North Dakota Supreme Court, 1929)
State Ex Rel. City of Algoma v. Peterson
2 N.W.2d 253 (Wisconsin Supreme Court, 1942)

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Bluebook (online)
68 P.R. 654, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cabassa-v-ramon-rivera-prsupreme-1948.