Dangel v. Williams
| Decision Date | 27 November 1916 |
| Citation | 11 Del.Ch. 213,99 A. 84 |
| Court | Court of Chancery of Delaware |
| Parties | DAVID DANGEL and EDWARD WITSIL, v. ALBERT WILLIAMS, ARTHUR JOHNSON, JAMES KANE, JOHN MCDONOUGH and BURTON S. HEAL, members of the Public Building Committee of the Council of Wilmington, and ELLIS P. PRESTON, Building Inspector of the City of Wilmington, and EDWARD F. CONNOR |
INJUNCTION BILL. Edward F. Conner, the owner of a lot of land situate on the westerly side of duPont Street, between Fourth and Fifth Streets, in the City of Wilmington, applied to the Building Inspector of the City of Wilmington for a permit to erect on said lot a building for use as a public garage. Based upon an ordinance of the City of Wilmington in substance providing that after June 25, 1914, no permit shall be granted for the erection or alteration of any building intended for use as a public garage in the residence portion of the city, within forty feet of the building line of adjoining property owners, without the written consent of such adjoining owners, the Building Inspector refused the application, and Connor thereupon appealed to the Public Building Committee of the Council of Wilmington for an order requiring the Building Inspector to issue the permit. Before any action was taken by the Public Building Committee of Council the complainants, fearing action by them would be taken favorable to the application, filed a bill praying for an injunction to restrain such action.
A restraining order and a rule requiring the defendants to show cause why a preliminary injunction should not be granted were issued, and pending the hearing of the rule a motion was made on behalf of Connor to dissolve the restraining order. While the decision of this motion was pending Connor's solicitor filed a demurrer which questioned the validity of the ordinance above referred to, and the cause was heard on the bill and demurrer. The other facts essential to the decision of the cause are stated in the opinion.
Demurrer to the bill for want of equity sustained.
Wilbur L. Adams, for the complainants.
Robert G. Harman, for the defendant, Edward F. Connor.
The bill is filed by two persons owning lots of land on the north side of Fourth Street between duPont and Scott Streets against the members of the Public Building Committee of The Council of Wilmington, the Building Inspector and Edward F Connor, the owner of a lot of land situate in the City of Wilmington on the west side of duPont Street between Fourth and Fifth Streets, and adjoining the lots of the complainants.
It is alleged that the lots of both the complainants and defendant Connor, are within the residential section, or residence portion of the city, and that the defendant, Connor, has applied for a permit to erect on his lot a building to be used as a public garage; that it will be located within forty feet of the building line of the lots of the complainants and that the consent of the complainants in writing, or otherwise, has not been obtained. An ordinance passed by the City Council on June 25, 1914, provides inter alia, as follows:
Fearing that the permit will be granted contrary to the ordinance, the complainants ask for an injunction to restrain such action. There are other allegations as to official irregularities which it is not necessary to state or consider in view of certain conclusions as to the validity of the ordinance above quoted.
At a hearing of a rule to show cause why a preliminary injunction should not be issued, testimony was heard as to whether the lands in question were located in the residence section of the city. Pending a decision of the question the defendant, Connor, demurred generally to the bill for want of equity, and in the argument attacked the validity of the ordinance, as unreasonable, discriminatory and unwarranted by law. Inasmuch as the complainants claim protection under the ordinance and assert that as their lands are located in the residence portion of the city the garage cannot be built within forty feet of their lots without their consent according to the ordinance, it follows that they have no right to relief if the ordinance be invalid.
Courts are always reluctant to declare invalid legislation. When, however, the error is clear, the duty to hold the legislative branch of government within the clear bounds of its power is imperative.
The reasonableness of an ordinance is a judicial question. An ordinance is reviewable by the court when it is enacted pursuant to a general power, or under implied power; but not where the power is given to the municipality by the Legislature to enact an ordinance of a special kind. As was well said in Lane v. Concord, 70 N.H. 485, 488, 49 A. 687, 688 (85 Am. St. Rep. 643):
"It is elementary that ordinances, other than those passed by virtue of an express grant or power, must be reasonable and not oppressive."
The unreasonableness of an ordinance may appear on its face, independent of its actual operation. All reasonable doubts as to the reasonableness of an ordinance are to be resolved in favor of the ordinance. 2 Dillon on Municipal Corporations (5th Ed.) § 591. The principles of law applicable in testing the ordinance in question are well established and sound in principle. The power to legislate conferred on one governmental body cannot be delegated by it, the legal maxim being "delegatus non potest delegari." Rice v. Foster, 4 Del. 479, 4 Harr. 479. By the charter the power to legislate in relation to buildings and to make building regulations is committed to the Council, the legislative body of the City of Wilmington. That legislative body has by ordinance given to each owner of land in the residence portion of the city a right to decide whether public garages shall be erected in that section within forty feet of his land. By the overwhelming weight of authority, with scarcely any decisions to the contrary, such legislation is invalid. Is it a fundamental right of government to restrict for the public good the use of private property by the individual owning it, and this is included in the term police power, the exercise of which is seen in regulations of the construction of buildings for the safety of the public and the prohibition against certain kinds of business to preserve the public health. But all regulations must be reasonable, general and uniform, and the power must be exercised by the legislative body directly and not be delegated to any individual. Therefore, an ordinance which prohibits the erection of a public garage in the residence portion of the city without the consent of the owners of adjoining lands is unreasonable, is not uniform and is a delegation of power to the adjoining owners of power which can be exercised only by the duly constituted legislative body. By it an owner of land may be restricted in a proper use of his land for a particular purpose by his failure to obtain the consent of his neighbor, either because of the arbitrary will or caprice of his neighbor, or because he is inaccessible, or hostile, or for any reason indifferent. The adjoining owner and not the Council makes the ordinance effective. The liberty to erect the garage is granted or withheld not by the city, or any of its officers, but by some one or more of the owners of property adjoining the land on which the garage is to be erected. This is unreasonable and an unwarranted delegation of legislative power.
Similar ordinances have been held invalid as delegations of legislative power and as being unreasonable in the following cases: A city ordinance requiring consent of owners of one-half of the ground in a block where a livery stable is to be built was declared invalid as a delegation of legislative power in the leading case of St. Louis v. Russell, 116 Mo. 248, 22 S.W. 470, 20 L. R. A. 721. An ordinance forbidding the operation of a slaughter house within three hundred feet of a dwelling was declared invalid for the same reason in the case of St. Louis v. Howard, 119 Mo. 41, 24 S.W. 770, 41 Am. St. Rep. 630. To like effect is Hays v. City of Poplar Bluff, (1915) 263 Mo. 516, 173 S.W. 676, L. R. A. 1915D, 595. In a case in California, Ex parte Sing Lee, 96 Cal. 354, 359, 31 P. 245, 247, 24 L. R. A. 195, 31 Am. St. Rep. 218, an ordinance requiring consent of adjoining owners to a public laundry was declared to be an unreasonable and unwarranted interference with the right to use property, the court saying:
"It is very clear to us that the right of an owner to use his property in the prosecution of a lawful business, and one that is...
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