176 N.W. 159 (Minn. 1920), 21,104, State ex rel. Twin City Building & Investment Company v. Houghton

Docket Nº:21,104
Citation:176 N.W. 159, 144 Minn. 1
Opinion Judge:HOLT, J.
Judge Panel:BROWN; DIBELL BROWN, C.J. and DIBELL, J. (dissenting).
Case Date:January 23, 1920
Court:Supreme Court of Minnesota

Page 159

176 N.W. 159 (Minn. 1920)

144 Minn. 1




No. 21,104

Supreme Court of Minnesota

January 23, 1920

Original Opinion Filed October 24, 1919


Eminent domain -- public use -- restricted residence district.

Condemnation cannot be had for a use which is not public, and the condemnation of property against its use for an apartment building, as provided by Laws 1915, c. 128, is not for a public use. [See Paragraph 2 below.]

January 23, 1920.

Subject of act expressed in its title.

1. The subject of Laws 1915, c. 128, relating to restricted residence districts in cities of the first class, for the establishment of which condemnation is provided, is sufficiently expressed in its title within the constitutional requirement, though the subject of condemnation is not mentioned in it.

Prohibition of apartment houses constitutional.

2. Laws of 1915, c. 128, provides for restricted residence districts in cities of the first class in which certain classes of buildings shall not be erected. Such restricted district is established by the exercise of the power of eminent domain, and apartment houses, among other classes of buildings, are prohibited therein. The Constitution permits the taking or destruction or damage of private property for public use alone. It is held that the restriction as applied to an apartment house is based upon a public use and that the statute providing for condemnation is constitutional.


[144 Minn. 13] After reargument the following opinions were filed January 23, 1920:

Motion on Reargument


Mandamus on relation of the Twin City Building & Improvement Company against James G. Houghton, inspector of buildings of Minneapolis, to require him to issue it a building permit. There was an answer to the alternative writ to which a demurrer

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was sustained, and judgment was then entered for the relator, from which the defendant appeals.

The only question is upon the constitutionality of Laws 1915, p. 180, [144 Minn. 14] c. 128. The relator claims that the statute is unconstitutional, because its subject is not expressed in its title, and because the use for which it is proposed to exercise the power of eminent domain is not a public use.

1. The act is entitled: "An act authorizing cities of the first class to designate and establish restricted residence districts and to prohibit the erection, alteration and repair of buildings thereon for certain prohibited purposes." It provides for establishing restricted residence districts by condemnation. The claim of the relator is that the subject of the act is not expressed in its title within the constitutional requirement. Const. art. 4, § 27. We have given this matter consideration and reach the conclusion that the subject of the act is sufficiently expressed in its title. The matter has been gone over frequently and the question does not call for discussion. Dunnell, Minn. Dig. and 1916 Supp. § 8906, et seq.

2. The remaining question is whether there is any public use in aid of which the right of eminent domain may be used.

On March 8, 1918, the city council passed a resolution pursuant to Laws 1915, p. 180, c. 128, designating block 8 in J. T. Blaisdell's Revised Addition of Minneapolis as a restricted residence district. The relator owns lot 13 and the south 34.9 feet of lot 12 in this block. It was proposing to erect a three-story apartment building costing approximately $50,000, and for this building a permit for certain parts of the structure was asked and denied. Laws 1915, p. 180, c. 128, provide for the designation by the common council of restricted residence districts and the prohibition of the erection therein of buildings of a certain class, including such as the apartment building intended by the relator. Sections 1 and 2 of the statute, important here, are as follows:

Section 1. Any city of the first class may, through its council, upon petition of fifty (50) per cent of the owners of the real estate in the district sought to be affected, designate and establish by proceedings hereunder restricted residence districts within its limits wherein no building or other structure shall thereafter be erected, altered or repaired for any of the following purposes, to-wit, hotels, restaurants, eating houses, mercantile business, stores, factories, warehouses, printing establishments, tailor shops, coal yards, ice houses, blacksmith shops, repair shops, paint shops, bakeries, dyeing, cleaning and laundering establishments, billboards [144 Minn. 15] and other advertising devices, public garages, public stables, apartment houses, tenement houses, flat buildings, any other building or structure for purposes similar to the foregoing. Public garages and public stables shall include those, and only those, operated for gain.

Nothing herein contained shall be construed to exclude double residences or duplex houses, so-called, schools, churches, or signs advertising for rent or sale the property only on which they are placed.

No building or structure erected after the creation of such district shall be used for any purpose for which its erection shall be prohibited hereunder.

The term "council" in this act shall mean the chief governing body of the city by whatever name called.

Section 2. The council shall first designate the restricted residence district, and shall have the power to acquire by eminent domain the right to exercise the powers granted by this act by proceedings hereinafter defined, and when such proceedings shall have been completed the right to exercise such powers shall be vested in the city.

The Constitution provides that "private property shall not be taken, destroyed or damaged for public use, without just compensation therefor first paid or secured." Const. art. 1, § 13. The parties agree that the only question involved, the question of the title aside, is the constitutionality of the statute under the eminent domain provision of the Constitution. That question is the single question whether the legislature may authorize a common council to establish by condemnation a restricted residence district, which shall exclude apartment buildings, and that question is whether there is a public use in such restriction.

That the public gets no physical use of the premises condemned is clear. It cannot travel upon or occupy them. The use acquired so far as the general public is concerned is rather negative in character, except, perhaps, that its sense of the appropriate and harmonious will not be offended by the erection in the condemned district of proscribed buildings. The condemnation does not take any part of the ground away from the owner; the taking consists in restricting its use. He is compensated for the restriction imposed, but compensation is merely an incident to the [144 Minn. 16] exercise of the right of condemnation, and without a public use to be served gives no right.

Naturally enough we do not find parallel cases. It is not supposed that a considerable portion of the public will derive benefit from the restriction. This is evidenced by the requirement that the condemnation money ultimately be paid from assessments for benefits to the restricted district, which in this case is one block. It is not paid out of the general fund, though the city's credit is pledged for it. It is treated much as a local benefit or use; but this fact, or the fact that

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only a small part of the public is appreciably or directly benefited does not make the use not public. 10 R.C.L. p. 31. "In holding a use to be public, it has never been deemed essential that the entire community, or any considerable portion of it, should directly enjoy or participate in the improvement or enterprise." Sisson v. Supervisors, 128 Iowa 442, 104 N.W. 454, 70 L.R.A. 440.

The notion of what is public use changes from time to time. Public use expands with the new needs created by the advance of civilization and the modern tendency of the people to crowd into large cities. Such a taking as here proposed could not possibly have been thought a taking for public use at the time of the adoption of our Constitution when the state was practically a wilderness without a single city worthy of the name. "The term 'public use' is flexible, and cannot be limited to the public use known at the time of the forming of the Constitution." Stewart v. Great Northern Ry. Co. 65 Minn. 515, 68 N.W. 208, 33 L.R.A. 427. What constitutes a public use at the time it is sought to exercise the power of eminent domain is the test. The Constitution is as it was when adopted, but, when it employs terms which change in definition as conditions change, it refers to them in the sense in which they are meant when the protection of the Constitution is sought. The Constitution of this state nowhere attempts to define what may be a public use, nor does it prohibit the legislature from determining what shall be deemed such a use.

In comparatively recent times it was questioned whether a public use extended so far as to justify the condemnation of property and the expenditure of money for public parks, or for boulevards, or for pleasure drives, or for public baths, or for playgrounds, or for libraries and museums [144 Minn. 17] or for numerous other purposes which contribute to the general good. Now condemnation and expenditure for these and like or similar purposes is common, and recognized as lawful. Not so very long ago there would have been a revolt against restricting a property owner in the full use of his lot to the street line. But a condemnation for the purpose of widening a street by adding a strip on each side which is not to be used for travel, but for ornament and beauty, and with the reservation of a limited use in the owner, is held valid. In re City of New York, 57...

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