Dudding v. Automatic Gas Co.

193 S.W.2d 517, 145 Tex. 1, 1946 Tex. LEXIS 123

• Court: Texas Supreme Court
• Decided: March 20, 1946
• Docket: No. A-721.
• Status: Published

Opinions

Justice Simpson

delivered the opinion of the Court.

Petitioners sued in the district court of Hunt County to restrain respondent from erecting and maintaining storage tanks for butane gas near petitioners’ residence in a suburb of Green-ville. The tanks, which were in process of erection when the suit was filed, were 128 feet from petitioners’ residence and 127 feet from the nearest building. The combined capacity of the two tanks respondent intended to erect was 18,400 water gallons. Upon hearing without a jury, the trial court granted a temporary injunction, the findings of the court reciting that the storage of the proposed quantity of butane gas “at the place and under the circumstances is a continuing menace to the life and property of the plaintiffs” and to others, and that “the location and amount of explosive, to be stored, under the surrounding conditions and circumstances, creates both a private and public nuisance.”

The Court of Civil Appeals reversed the judgment of the trial court and rendered judgment for appellant (respondent"here), holding in effect that one engaging in a business in compliance with lawful rules made pursuant to legislative authority is protected in the use of his property and that such a legalized business and use cannot be declared a nuisance by a court. 189 S. W. (2d) 780.

The case is before this Court solely on the question of the propriety of issuing an injunction to restrain the proposed construction of respondent’s tanks.

In their argument petitioners affirm that “there is only one matter involved in this case and that is as to the location of the 20,000 gallon butane gas tanks, and whether located as they were, they constitute a nuisance.”

It is not disputed that the respondent is enaged in a lawful business and has fully complied with all applicable rules and statutes, except only it is urged that the regulatory powers contained in the act from which we will presently quote do not extend to an approval of the location of respondent’s tanks. Accordingly, our inquiry narrows to a consideration of the regulations which assume to permit the location of these tanks within certain minimum distances from adjoining and near-by property.

In 1939 the Legislature passed a comprehensive regulatory statute to prevent the improper handling and use of liquefied petroleum gases, which enactment included the following:

“After the effective -date of this Act all containers and pertinent equipment installed for use in this State for the storage and dispensing of liquefied petroleum gases for the purpose of providing gas for industrial, commercial, and domestic uses, shall be designed, constructed, equipped, and installed as specified under the published regulations of the National Board of Fire Underwriters for the design, installation, and construction of containers and pertinent equipment for the storage and handling of liquefied, petroleum gases as recommended by the National Fire Protection Association, effective July, 1937, a copy of said regulations known as National Board of Fire Underwriters Pamphlet No. 58 being on file with the Gas Utilities Division of the Railroad Commission of Texas.” Sec. 2a, Art. 6053, as amended Acts 1939, 46th Leg., p. 501 (Sec. 2a, Art. 6053a, Vernon’s Rev. Tex. Stat.).

Pamphlet No. 58, adverted to in the act, includes the following regulation:

“B.5 Location of Containers and Regulating Valves. (a) * * * Except as herein provided, each individual container shall be located with respect to nearest important building or group of buildings or line of adjoining property which may be built upon in accordance with the following table:

Minimum Distance Water Capacity Per Container Underground Aboveground Less than 125 gallons______________________________10 feet None 125 to 500 gallons____________________________________ 10 feet 10 feet 500 to 1200 gallons_____________________________ 25 feet 25 feet Over 1200 gallons_______________________________________50 feet 50 feet

Aboveground containers of capacity exceeding those shown in the above table may be installed close to buildings or property lines when specifically approved by the inspection department having jurisdiction.”

The Railroad Commission of Texas was designated as the agency to administer this act. It promulgates rules which substantially conform to the statutory standards. These rules include a provision that the particular containers which respondent proposes to erect “shall be located and installed, in accordance with specific approval obtained from the Railroad Commission of Texas.” This approval was obtained. Moreover, the tanks were located substantially farther than the minimum of fifty feet from near-by structures, which as we have seen was expressly approved as a criterion by the Legislature itself. Manifestly, one of the many factors which concerned the lawmakers in enacting this statute was the location and spacing of tanks for the storage of butane gas, and by its adoption of this pamphlet the Legislature effectively laid down definite standards as to spacing. The respondent has fully complied with these standards as well as with the rules of the Railroad Commission.

It was entirely proper for the Legislature to adopt, for the guidance of the Railroad Commission in administering the act, standards theretofore prescribed by the National Board of Fire Underwriters. Nor is the statue invalid because the standards thus adopted were not copied into the act but were incorporated’ into it by reference to a document then on file with the administering agency. Ex parte Gerino, 143 Cal. 412, 77 Pac. 166, 66 L. R. A. 249; State of Washington v. Bonham, 93 Wash. 489, 161 Pac. 377, L. R. A. 1917D, p. 996; Gima, v. Hudson Coal Co., 106 Pa. Super. 288, 161 Atl. 903, affirmed 310 Pa. 480, 165 Atl. 850. The very first article of our Revised Statutes adopts, by reference the common law of England and we apprehend that none would question its validity. Interestingly in point is an observation of the Supreme Court of Georgia in Central of Georgia Railway Co. v. State, 104 Ga. 831, 31 S. E. 531 where the court was considering the validity of an adoption act putting into effect a recodification of the statute laws of Georgia. The point had been urged that the measure was invalid because the new code was not copied a.t length into the act adopting it, and hence offended against -the constitutional provision requiring that before final passage bills should be read in each house of the Legislature on three several days. After calling attention to Georgia’s statutory adoption by reference of (1) the common law of England;, (2) the equity jurisprudence in force in that country, and (3) the American experience table of mortality, the court observed:

“Similar instances might bo multiplied to such an extent as to show that a tremendous breach, if not a total wreckage, of our system of laws, would be accomplished if the judicial construction contended for in this case were placed upon the constitutional provision above quoted.”

Also illustrative of the constitutional power of a state legislature to enact such a measure as is here under consideration, we quote the following from L. A. Thompson Scenic Railway Company v. McCabe, 211 Mich. 133, 178 N. W. 662, in which the Supreme Court of Michigan made a distinction between the scope of the legislative powers of the City Council of Detroit and: those of the Michigan Legislature:

“Reliance is placed by the defendant upon Act No. 174 of the Public Acts of 1917, by means of which it is said, the State Legislature adopted the ‘Boiler Code of the American Society of Mechanical Engineers’ by reference only. The propriety of this method of legislation has never been questioned, so far as we ■ are advised; but, assuming its entire constitutionality, it should be borne in mind that the Legislature of the state functions under broad constitutional limitations, whereas the common council of the city of Detroit must act strictly within the powers granted to it in the character.”

The adoption of the regulations in question is not open to such an objection as was urged in State v. Crawford, 104 Kan. 141, 177 Pac. 360, 2 A. L. R. 880, a criminal case where a statute adopting present as well as prospective rules of an unofficial association as a standard of conduct, departure from which would be punished as a crime, was held invalid. It is true that the 1939 enactment also authorized (but did not require) the Railroad Commission of Texas “to adopt and promulgate such rules and regulations as may be hereinafter adopted and published by the National Board of Fire Underwriters and/or the National Fire Protective Association” for the handling of liquefied petroleum gases. But the matter of adopting future rules is not in this case. What we are now considering is the validity of that set of rules which was adopted by the lawmakers when they gave legislative sanction to Pamphlet ."No. 58 from which we have quoted,. We do not have before us a situation where future rules of an unofficial agency have been prospectively adopted by the Legislature or the Railroad Commission. To the contrary, we have here a document containing comprehensive regulations for the safe handling of liquefied petroleum gases which was on file among the archives of the Railroad Commission, and which the statute expressly approved. The adoption of these rules in this manner was certainly a valid exercise of legislative power.

It follows from what has been said that the installations which respondent proposes to construct have been effectively legalized, and accordingly their erection could not have been abated as a nuisance. The applicable rule is well put in 39 Am. Jur., p. 478. We quote:

“Generally, the courts will not hold conduct to constitute a nuisance where authority therefor exists by virtue of legisla tive enactment, and there are numerous statements in the cases to the effect that the doing of that which the law authorizes cannot be a nuisance, or such a nuisance as to give a common-law right of action, although it would otherwise be one. It has also been held that when the legislature directs or allows that to be done which would otherwise be a nuisance, it will be valid on the ground that the legislature is ordinarily the proper judge of what the public good requires, unless carried to such an extent that it can fairly be said to be an unwholesome and unreasonable law.”

Essentially the same thing is said in Joyce on Nuisances, sec. 69, p. 108:

“* * * And the rule may be stated to be that where one has the sanction of the State for what he does unless he commits a.fault in the manner of doing it, he is completely justified, provided the legislature has the constitutional power to act. And the legislature may, except so far as it may be limited' by constitutional. restrictions, when deemed necessary for the public good, permit or require that to be done which would, on common law principles, and without the statute be deemed a nuisance.”

Many decisions support these views. Among them are Ferris v. Wilbur (C. C. A. 4th), 27 Fed. (2d) 262; Atchison T. & S. F. Ry. Co. v. Armstrong, 71 Kan. 366, 80 Pac. 978, 1 L. R. A. (N. S.) 113, 114 Am. St. Rep. 474; Levin v. Goodwin, 191 Mass. 341, 77 N. E. 718; Strachan v. Beacon Oil Co., 251 Mass. 479, 146 N. E. 787; Ex parte Pierotti, 43 Nev. 243, 184 Pac. 209; and E. I. Du Pont de Nemours Powder Co. v. Dodson, 49 Okla. 58, 150 Pac. 1085. See also Sherman Gas and Electric Co. v. Belden, 103 Texas 59, 123 S. W. 119, and Neblett v. Sterling Investment Co. (Tex. Civ. App.), 233 S. W. 604 (error ref.).

The suggestion has been made in conference that there is no proof that the Railroad Commission has ever given approval to the location of respondent’s tanks. This point was not raised by petitioners. They only complain that the approval of the Commission was not obtained until after suit was filed. Respondent introduced in evidence a telegram from the director of the Gas Utilities Division of the Railroad Commission of Texas giving “tenative approval” of the location. Other than suggesting that the approval was tardily obtained, a position we consider untenable, the petitioners have made no objection to the form or adequacy of this proof. The evidence indicated that final approval by the Commission would be forthcoming after the completion and official inspection of the respondent’s installations, the erection of which was interrupted by the trial court’s restraining order. Under the circumstances, approval of the lo- - cation of respondent’s tanks by the administering agency was sufficiency shown.

Petitioners rely on Rainey v. Red River T. & S. Ry. Co., 99 Texas 276, 89 S. W. 768, 3 L. R. A. (N. S.) 590, and Burrows, v. Texas & N. 0. Ry. Co. (Tex. Civ. App.), 54 S. W. (2d) 1090 (error dism.), to support the contention that installations otherwise legalized by statute may not be erected and maintained at a place where a court finds the location amounts to a nuisance unless the statute pointed out the place where the objectionable structure was to be built or left that location to the arbitrary selection of those erecting it. In neither of these cases was there involved legislation dealing with the matter of location. The court in each case took pains to point out the absence of such a statute. Indeed, in each case it is indicated that if the structure in question had been located at a place authorized by statute, no injunction to abate its maintenance would lie. In the present case, the mariner in which butane storage tanks must be located has been defined and authorized both by statute and by the agency designated to administer the act. The Rainey and: Burrows cases are patently not in point.

Complaint is made in effect that the Railroad Commission of Texas is undertaking to adjudicate the rights of the parties. We cannot give assent to this contention. Obviously the Legislature has no facility through which to administer the workings of the butane gas regulatory act. What the lawmakers did was to delegate to the Railroad Commission this task and to charge that agency with the duty of putting into effect the statute’s completed' provisions. There was no attempt to delegate to the Commission any judicial power, nor has that body in any sense undertaken to adjudicate the property rights of the parties. All it has done in this case is to undertake its statutory duty of administering the act. This was entirely proner. Housing Authority of City of Dallas v. Higginbotham, 135 Texas 158, 143 S. W. (2d) 79, 130 A. L. R. 1053, and cases there cited.

We conclude that the judgment of the Court of Civil Appeals should be affirmed:

Opinion delivered March 20, 1946.

Rehearing overruled April 24, 1946.