A city ordinance forbidding the storage of petroleum and
gasoline within 300 feet of any dwelling, beyond certain small
quantities, is within the state police power.
where storage of those substances in tanks was
necessary to a company's business of selling them, and the plant
could not be moved without expense and loss of profits.
The fact that the tanks were moved to their present position at
the city's request did not import a contract not to require further
removal for the public welfare; nor would such a contract be
Where it cannot be aided by judicial notice, an averment that an
ordinance is unnecessary and unreasonable is too general, and is
not admitted by a demurrer.
Allegations designed to show that petroleum and gasoline were so
stored as not to endanger any buildings and that explosion was
impossible, though conceding the possibility of some combustion,
insufficient on demurrer to exclude the danger of
explosion of which the court might take judicial notice.
127 Ark. 38 affirmed.
The case is stated in the opinion.
Page 248 U. S. 499
MR. JUSTICE HOLMES delivered the opinion of the court.
This is a complaint brought by the plaintiff in error to enjoin
the City of Hope from enforcing an ordinance that forbids the
storing of petroleum, gasoline, &c. within three hundred feet
of any dwelling, beyond certain small quantities specified. A
demurrer to the complaint was sustained by the supreme court of the
state. 127 Ark. 38. The plaintiff is engaged in the business of
selling petroleum oil and gasoline, and has tanks on the right of
way of a railroad in the city, which it moved to that place at the
city's request. The mode of construction is set forth, and it is
alleged that an explosion is impossible and that the presence of
the tanks in no way endangers any buildings. The tanks are
necessary for the business; the present position diminishes the
cost of transferring oil from cars, and cannot be changed without
considerable expense and a reduction of the plaintiff's lawful
profits. The plaintiff adds that it knows of no available place in
the city where the tanks could be put and oil stored without
violating the ordinance, that the ordinance is unnecessary and
unreasonable, and that the enforcement of it will deprive the
plaintiff of its property without due process of law contrary to
the Fourteenth Amendment of the Constitution of the United
A long answer is not necessary. A state may prohibit the sale of
dangerous oils, even when manufactured under a patent from the
United States. Patterson v. Kentucky, 97 U. S.
. And it may make the place where they are kept or
sold a criminal nuisance, notwithstanding the Fourteenth Amendment.
Page 248 U. S. 500
623. The power
"is a continuing one, and a business lawful today may in the
future, because of the changed situation, the growth of population
or other causes, become a menace to the public health and welfare,
and be required to yield to the public good."
Dobbins v. Los Angeles, 195 U.
, 195 U. S. 238
The averment that the ordinance is unnecessary and unreasonable, if
it be regarded as a conclusion of law upon the point which this
court must decide, is not admitted by the demurrer. If it be taken
to allege that facts exist that lead to that conclusion, it stands
no better. For if there are material facts of which the court would
not inform itself, as in many cases it would, Prentis v.
Atlantic Coast Line Co., 211 U. S. 210
211 U. S. 227
an averment in this general form is not enough. Southern Ry.
Co. v. King, 217 U. S. 524
217 U. S.
-535. Only facts well pleaded are confessed.
Then, as to the allegation that plaintiff's plant is safe and
does not threaten the damages that led to the ordinance being
passed, there are limits to the extent to which such an allegation
can be accepted, even on demurrer; as in the old case of a plea
that the defendant threw stones at the plaintiff molliter,
and that they fell upon him molliter,
"for the judges say
that one cannot throw stones molliter.
" 2 Rolle's Abr.
548, Trespass, (G) 8. As was well observed by the court below "we
may take judicial notice that disastrous explosions have occurred
for which no satisfactory explanations have been offered. The
unexpected happens." 127 Ark. 43. Indeed, the answer admits some
possible combustion, but undertakes to limit its possible effects.
If it were true that the necessarily general form of the law
embraced some innocent objects, that of itself would not be enough
to invalidate it or to remove such an object from its grasp.
Purity Extract & Tonic Co. v. Lynch, 226 U.
, 226 U. S. 204
Hebe Co. v. Shaw, ante, 248 U. S. 297
Whether circumstances might make an exception from this principle
need not be considered
Page 248 U. S. 501
here. Reinman v. Little Rock, 237 U.
. It is enough to say that the allegations do not
raise the question. The fact that the removal to the present
situation was made at the city's request does not import a contract
not to legislate if the public welfare should require it, and such
a contract, if made, would have no effect. Boston Beer Co. v.
Massachusetts, 97 U. S. 25
Texas & New Orleans R. Co. v. Miller, 221 U.
, 221 U. S.