
    The State, ex rel. The Moore Oil Co., v. Dauben, Building Inspector.
    
      Construction — Penal statutes or ordinances strictly construed, when ,— Restrictions on trades, occupations or businesses — Exemptions liberally construed, when — Ordinance prohibiting gasoline and oil filling-stations — Consents of property owners unnecessary, when — Repair or remodelling of existing structure— Mandamus —Refusal of permit by building inspector.
    
    1. Statutes or ordinances of a penal nature, or which restrain the exercise of any trade or occupation or the conduct of any lawful business, or which impose restrictions upon the use, management, control or alienation of private property, will be strictly construed. and their scope cannot be extended to include limitations not therein clearly prescribed; exemptions from such restrictive provisions are for like reasons liberally construed.
    2. Under the provisions of a city ordinance making it unlawful to locate, build, erect, construct, maintain or operate a public gasoline or oil filling-station in a residence district without first procuring the written consent of two-thirds of the owners of property within a specified distance therefrom, but exempting any owner or operator of any such station theretofore erected, such owner is not required to procure the consents of property owners before he may repair, remodel or rebuild such preexisting gasoline or oil filling-station.
    3. Where an application is made by the owner of such preexisting station to the city building inspector for a building permit, and such inspector finds the plans and specifications submitted to be in conformity to law and the ordinances of the city, arid approves them, but refuses the permit on the sole ground that the consents of property owners have not been procured and filed, a writ of mandamus will issue upon the application of the owner requiring the issuance of a building permit.
    (No. 16140
    Decided April 2, 1919.)
    Error to the Court of Appeals of Franklin county.
    
      The relator, The Moore Oil Company, has maintained a gasoline filling-station at the northwest corner of Twenty-first and Broad streets in the city of Columbus since May 1, 1915, and since November 4, 1915, has been the owner of the tract whereon its filling-station is located. It has a driveway entering from Twenty-first street and the alley in the rear of its premises, leading to its building, and thence to Twenty-first street near Broad. On March 26, 1917, preparatory to the erection of a new building and the material extension and enlargement of its plant, the company procured from the director of public service of the city permission to construct an additional driveway from Broad street, and submitted to the building inspector the plans and specifications for the improvements to be made by it, which included the erection of a one-story brick building, with rest rooms, lavatories and comfort stations, to replace the one-story metal building theretofore used by it, also the installation of two underground steel tanks of 4000 gallons capacity each, instead of one of 1000 gallons and two of 500 gallons capacity each, and also additional pumps, and requested the issuance of a building permit.
    The plans and specifications for the proposed improvement were approved by the city building' inspector, who stated in writing, in response to said application of the plaintiff in error, that he found said plans and specifications to be in compliance with all laws and ordinances, except that ordinance No. 28932 of the city had not been complied with in the respect that said company had not procured and submitted with its application the written consents of two-thirds of the owners of the property abutting on said street for a distance of 500 feet in each direction from the median line of such proposed oil filling-station according to the frontage on both sides of the street, and that solely for that reason the application of said company for a building permit was refused.
    Ordinance No. 28932 of the city of Columbus referred to in the communication of the city building inspector is as follows:
    “Be it ordained by the council of the city of Columbus, State of Ohio:
    “Section 1. That it shall be unlawful for any person, firm or corporation for themselves or as agents, renters or lessees, to locate, build, erect, construct, maintain or operate any public gasoline or oil-filling station or sales depot on or within 187-Í feet from the curb line of any street in the city, or to construct or maintain a driveway from the street over the curb and sidewalk to such station or depot, when three-fourths of the buildings on both sides of the street for a distance of five hundred (500) feet in either direction from the proposed location of each wall of such oil-filling station or sales depot are used exclusively for residence purposes, without first securing the written consent of two-thirds (2/3) of the owners of property abutting on the street for a distance of 500 feet in each direction from the median line of such proposed oil-filling station or sales depot, according to the frontage on both sides of the street.
    
      “Sec. 2. Any person, firm or corporation, or any agent, renter or lessee, of any such person, firm or corporation who shall violate any of the provisions of this ordinance shall be fined not less than $100 nor more than $500 for each offense, and each week of continued violation of this ordinance shall constitute a separate offense after the first prosecution has begun.
    “Sec. 3. This ordinance shall take effect and be in force from and after the earliest period allowed by law, but shall not apply to or be operative against any owner or operator of any public gasoline or oil-filling station or sales depot heretofore erected unless two-thirds of the owners of property for whose consent this ordinance makes provision file with the city clerk within thirty days after this ordinance takes effect their written protest against the further operation of such station or depot.”
    The Moore Oil Company instituted this proceeding in mandamus in the court of appeals, wherein it sought an order requiring- the defendant to issue to the relator such ■ building permit for the construction of its proposed improvement in accordance with the plans theretofore submitted to and approved by the defendant. ’
    Issue was made by petition, answer and reply. The defense claims that the proposed improvement involves the erection of a new structure and is prohibited by the terms of Section 1 of said ordinance, while the relator contends that it is exempt from the operation thereof and further asserts, that said ordinance is in conflict with certain provisions of the Constitution of the state and also of the United States.
    Upon hearing, the court of appeals refused the writ prayed for, and thereupon error was prosecuted to this court to procure a reversal of that judgment.
    
      Mr. James E. Robinson and Messrs. Webber, McCoy & Jones, for plaintiff in error.
    
      Mr. H. L. Scarlett, city attorney; Mr. Joseph Godown, assistant city attorney; Mr. James M. Butler; Mr. Harley E. Burns and Mr. L. L. Boger, for defendant in error.
   Matthias, J.

The primary question involved in this case is whether the structure proposed to be erected by the relator comes within the inhibition of ordinance Number 28932 of the city of Columbus. That ordinance was passed by the council of the city of Columbus on July 19, 1915, and approved by the mayor of the city on July 23, 1915. At that time the relator was maintaining and operating a gasoline and oil filling-station at the location now in question, being a lot at the corner of Twenty-first and Broad streets in sáid city, with a frontage of seventy feet on Broad street and extending to the alley, a depth of about one hundred and eighty-seven feet. For such purpose the relator had theretofore constructed and was then using in the operation of such station a one-story metal building, with underground gasoline tanks having a total capacity of two thousand gallons. It now proposes to erect a new building on the location of the old and provide further facilities, including another driveway, and increase its capacity by the construction of new and larger gasoline tanks and additional pumps. Pursuant to its plans for such improvement, and as an incident thereto, relator had caused the removal of its metal building to .make way for the new structure. But there was at no time an abandonment of its plant or a discontinuance of its business; on the contrary its business was continued, and the contract for the new improvement provided for the uninterrupted continuance thereof. Relator has therefore continuously maintained and operated a gasoline and oil filling-station at that location since about May 1, 1915.

Statutes or ordinances of a penal nature, or which restrain the exercise of any trade or occupation or the conduct of any lawful business, or which impose restrictions upon the use, management, control or alienation of private property, will be strictly construed and their scope cannot be extended to include limitations, not therein clearly prescribed; exemptions from such restrictive provisions are for like reasons liberally construed. 36 Cyc., 1180, and cases cited, and 2 Sutherland on Statutory Construction (2 ed.), Section 356.

The ordinance in question here makes it unlawful to locate, build, construct, erect, maintain or operate any public gasoline or oil filling-station on or within 187½ feet of the curb line of any street in a residence district of the city, or to construct or maintain a driveway from the street over the curb and sidewalk to such station, without first securing the written consent of two-thirds of the owners of property abutting on the street for a distance of 500 feet in each direction from the line of such proposed gasoline or oil filling-station. This is the substance of Section 1 of the ordinance, but Section 3 expressly provides that the ordinance shall not apply to or be operative against any owner or operator of any public gasoline or oil filling-station theretofore erected, unless within thirty days after the taking effect of such ordinance two-thirds of the owners of property within the specified distance file with the city clerk their written protest against the further operation of such station.

There can be no contention that the relator was in any wise precluded from continuing the operation of its plant as constructed and in operation prior to the passage of such ordinance. It is clearly exempt from the provisions of Section 1 by the terms .of Section 3 of the ordinance. It does not appear from the record that within thirty days subsequent to the passage of the ordinance protests were filed against the further operation of the station .of the relator, hence we have not here for consideration the validity of that provision in Section 3.

It is contended 1;y the defendant that the provisions of Section 1 are applicable and preclude the improvements proposed to be made by the relator. Where the lawmaking body declares its own intention in the enactment of a particular law, or defines the sense of the words, employed, it is within the exercise of its legislative power, and its own construction of its language should be followed. (2 Sutherland on Statutory Construction [2 ed.], Section 358.) If there could otherwise be any doubt as to the exemption of a filling-station in operation at the time of the passage of the ordinance from the terms thereof, that doubt is completely dispelled by a fair consideration of the language of Section 3, for the legislative body there construed its own provision and did not leave the interpretation thereof to the courts. The effect of the exemption clause in Section 3 is the same as if Section 1 itself contained the unconditional provision that the requirements thereof should riot apply to or be operative against any owner or operator of a filling-station erected previous to the passage of the ordinance.

For the purpose of an interpretation of Section 1 it is entirely immaterial whether or not the latter part of Section 3 is invalid, as being an unlawful delegation of legislative power. The provision excepting an owner or operator of a filling-station theretofore erected is as clear and explicit as is the provision prohibiting the erection and maintenance of such stations 'without procuring the designated consents. Presumably the prohibition would not have been enacted without the exemption, and the one cannot be enforced and the other disregarded. They must be construed together, and, as we have seen, the clause granting exemption from penal and restrictive provisions must be liberally construed. The presumption obtains that the ordinance is to operate only prospectively; but the legislative body was not content to rest upon that presumption, for by the exemption clause inserted it clearly indicated its plain purpose that the ordinance should have application and operation only prospectively. It prohibits the erection and maintenance of a public gasoline or oil filling-station, but excepts any owner or operator of a station theretofore erected. The relator is the owner of a public gasoline and oil filling-station theretofore erected, and therefore under the very terms of this ordinance may continue the maintenance and operation thereof. Requirements as to the method of construction and maintenance of such buildings and plants are prescribed by other laws and ordinances and admittedly have been met and complied with. It is not a particular kind or class of building or structure that is prohibited or sought to be regulated by this ordinance, but rather the use of the location as a public gasoline or oil filling-station. Here it appears that its character as such had been fixed prior to the passage of this ordinance, which does not in terms declare such places nuisances. They are thereby permitted to exist and continue. The alterations and improvements proposed do not change the character of this station, nor the use thereof, otherwise than to enlarge and somewhat improve it, as the record clearly shows. There is no language in this ordinance requiring' new consents whenever it is desired to alter or enlarge a station erected subsequent to the passage of the ordinance, with the specified consents of property owners, nor prohibiting the making, without procuring such consents, of such alterations and improvements of a station es.tablished and maintained prior to the passage of such ordinance.

The construction of the ordinance contended for by the defendant would preclude the reinstallation of a removed portion of such station and prevent restoration of a building damaged or destroyed by fire or otherwise. If changes or improvements of such station were to be forbidden, presumably language would have been used making such further restrictions. The effect of .language employed in restrictive provisions will not be extended by construction, but the operation of such provisions will be limited by the natural import of the terms employed. Section 1 of this ordinance seems to have been designed expressly to apply only to gasoline or oil filling-stations erected and established after the passage of the ordinance, and when limited, as it is, by the provisions of Section 3, can have no other application.

The judgment of the court of appeals is reversed and judgment rendered for plaintiff in error.

Judgment reversed and' judgment for plaintiff in error.

Nichols, C. J., Jones, Johnson, Donahue, Wanamaker and Robinson, JJ., concur.  