American Wood Products Co. v. City of Minneapolis

• Decision Date: 07 October 1929
• Docket Number: No. 8143-8146.,8143-8146.
• Parties: AMERICAN WOOD PRODUCTS CO. v. CITY OF MINNEAPOLIS et al., and three other cases.
• Court: U.S. Court of Appeals — Eighth Circuit

35 F.2d 657 (1929)

AMERICAN WOOD PRODUCTS CO. v. CITY OF MINNEAPOLIS et al., and three other cases.

Nos. 8143-8146.

Circuit Court of Appeals, Eighth Circuit.

October 7, 1929.

George T. Simpson, of Minneapolis, Minn., for appellants.

R. S. Wiggin, of Minneapolis, Minn. (Neil M. Cronin, of Minneapolis, Minn., on the brief), for appellees.

Before KENYON and VAN VALKENBURGH, Circuit Judges, and MARTINEAU, District Judge.

KENYON, Circuit Judge.

The appeals in four separate cases in which the zoning ordinance of the city of Minneapolis is attacked are here consolidated and argued as one cause. Plaintiffs in the trial court (appellants here) asked that the zoning ordinance of the city of Minneapolis be declared for various reasons to be invalid; that defendant Houghton, as building inspector of said city, be directed to issue to said plaintiffs permits for certain factory buildings they desired to erect upon their properties zoned as "multiple dwelling" areas under the zoning ordinance, or additions to those already there.

The trial court 21 F.(2d) 440, 443 was familiar with the situation of the property involved, and in its opinion described it in a general way as follows:

"The general situation of this property is a peculiar one. Slightly to the east lies the city limits of the city of St. Paul, and the use of property slightly to the east and in St. Paul is a heavy industrial use, and it is part of what is known as the Midway District. To the north, University avenue is an industrial street, and north of that and east of the spur, the territory is given up largely to industry. To the west of this property and between the spur and the Mississippi river, the property is mainly residential in character, and it is but a short distance from the River boulevard, which is devoted principally to handsome single residences. Between the spur and the city limits of the city of St. Paul, in the district where the complainants' properties are situated, the territory is also largely residential, and there has been no considerable development of industry.

"The University of Minnesota is located in the city of Minneapolis on the east side of the Mississippi river, within a short distance of the district in which the complainants' properties lie. Within recent years there has been a tremendous growth of that institution, and the housing problem for the faculty and students has increased. Much of the property which formerly was used for dwelling houses near the University has been taken over by the state, the dwelling houses removed, and University buildings built. It is, of course, necessary that there should be a district surrounding the University for the housing of those who are connected with it, and the problem is one which the city of Minneapolis has to meet."

The spur referred to is a switching track of the Chicago, Milwaukee & St. Paul Railway Company, which was constructed some 45 years ago near the east bank of the Mississippi river, connecting what is known as the Milwaukee Short Line with the line of the Great Northern to the north, and is used for switching purposes, a large number of movements passing over the same each day. The American Wood Products Company is located on the easterly side of the spur and has there a wood-working factory for the manufacture of cedar chests and other wooden products. Its business has so increased that it desires to enlarge its factory, and seeks a permit therefor. Complainant Benson owns vacant and unoccupied property along the spur track, and desires to erect a factory building thereon. Complainant's the Northwestern Feed Company property is north of the Benson property. It has a warehouse thereon for storage of feed and grain, and proposes to add thereto.

The property of the Lyle Culvert & Road Equipment Company does not touch the spur track, but is near it, and a switch owned by complainant connects it with the spur. The property is vacant and unimproved. It intends to put thereon an industrial establishment, with boiler room, repair shop, and garage. It is engaged in the manufacture of road machinery, culverts, etc.

The building inspector refused all applications for permits to build factories upon these properties or additions to those already there, because of the zoning ordinance which had been adopted by the city council of Minneapolis on the 3d of October, 1924, which embodies a comprehensive plan covering the entire city, but too extended to be set out here. The Milwaukee Railway spur is intended to be substantially the north and south dividing line. To the east thereof, with some slight exceptions, is the "multiple dwelling" area, and to the west is "light industrial" area. The property of these various complainants is embraced in the "multiple dwelling" area.

The trial court dismissed the bills of complaint and filed an opinion, the main conclusion of which is as follows: "In spite of the fact that I think that the city has dealt unjustly with these complainants, and particularly the American Wood Products Company and the Northwestern Feed Company, who had improved their property long prior to the going into effect of this ordinance, and who had no doubt helped to build up the section of the city in question, I cannot say that it is `plain and palpable' that the restrictions placed upon the use of their property by the city `has no real or substantial relation to the public health, safety, morals, or to the general welfare,' or that `the validity of the legislative classification for zoning purposes' is not `fairly debatable.'"

In 1921 the Legislature of Minnesota passed a law, which was applicable to Minneapolis, authorizing cities having 50,000 inhabitants or over to regulate the location, size, and use of buildings therein, and authorizing them to adopt a comprehensive plan for the development and improvement of the city or any portion thereof, and that future changes should be made in the plans only upon a majority vote of the members of the governing body of such city. In 1923 the Legislature passed an amendatory act (chapter 364 of the Laws of that year) amending said chapter 217 of the Laws for 1921, making section 1 thereof read as follows: "That for the purpose of promoting the public health safety, order, convenience, prosperity and general welfare, any city in the State of Minnesota now or hereafter having 50,000 inhabitants or over, acting by and through the governing body of said city, may by ordinance regulate the location, size and use of buildings, the height of buildings, the arrangement of buildings on lots, and the density of population therein, may make different regulations for different districts thereof, and may acquire or prepare and adopt a comprehensive city plan for such city or any portion thereof for the future physical development and improvement of the city, in accordance with the regulations made as aforesaid, and may thereafter alter said regulations or plan, such alterations, however, to be made only after two-thirds of the property owners within the 100 feet of the real estate affected acquiesced therein and after the affirmative vote in favor thereof of two-thirds of the members of the governing body of such city."

The principal change sought to be made was to provide that property owners should have some voice in the matter of changing any plan for improvement, and that two-thirds of the governing body, instead of a majority, must vote therefor.

Appellant contends: First, that the act under which the ordinance was passed (chapter 364, Laws of 1923) is void as a delegation of legislative power, because of the provision therein that alterations in the regular, adopted plan for the development and improvement of the city can be made only after two-thirds of the property owners within the 100 feet of the real estate affected acquiesce therein, and after the affirmative vote in favor thereof of two-thirds of the members of the governing body of the city. And, secondly, that if there is authority to pass the zoning ordinance the same has no valid relationship to the police power of the state, and is so unreasonable and arbitrary that it violates the Federal Constitution in denying to complainants the equal protection of the laws and in the taking of their property for public use without compensation and without due process of law.

Appellees' position as to the first proposition is that the acquiescence of property owners is a mere jurisdictional prerequisite and that it is in effect equivalent to a petition for alteration of the plan.

The trial court held that if the amendment of 1923 was invalid there was ample power under chapter 217, Laws of 1921, to pass the zoning ordinance.

Appellants contend that under section 10,929 of the General Statutes of Minnesota for the year 1923, which covers the subject of when revision of a statute will operate as a repeal, the amendatory act of 1923 repealed section 1 of chapter 217 of the Laws of 1921, and that if chapter 364, Laws of 1923, is invalid there was no authority whatever in the city council of the city of Minneapolis to pass the zoning ordinance, and the same is void.

We see no need of passing on the question of whether the amendment of 1923 was valid. If it was an invalid enactment it would not operate to repeal section 1 of chapter 217, Laws of 1921, and under that section ample power existed to pass the zoning ordinance. It may be noted in passing that this very ordinance has been held valid by the Supreme Court of Minnesota in Beery v. Houghton, 164 Minn. 146, 204 N. W. 569, 54 A. L. R. 1012, which decision was affirmed by the Supreme Court of the United States. 273 U. S. 672, 47 S. Ct. 474, 71 L. Ed. 832. It should be said that the decision related only to the general constitutionality of the ordinance, and that it had no reference to its effect as to particular properties. The Supreme Court of Minnesota, however, said in its opinion, "The ordinance was enacted...