Beem v. Davis

• Citation: 31 Idaho 730,175 P. 959
• Parties: ISAAC BEEM, Respondent, v. GROVER DAVIS, C. W. CASE, ARTHUR SMALL, JESS EDWARDS, and C. C. STEVENS, Trustees of the Village of Filer, a Municipal Corporation, L. D. ALLEN, Constable, and GEM STATE LUMBER COMPANY, Appellants
• Decision Date: 08 November 1918
• Court: Idaho Supreme Court

175 P. 959

31 Idaho 730

ISAAC BEEM, Respondent, v. GROVER DAVIS, C. W. CASE, ARTHUR SMALL, JESS EDWARDS, and C. C. STEVENS, Trustees of the Village of Filer, a Municipal Corporation, L. D. ALLEN, Constable, and GEM STATE LUMBER COMPANY, Appellants

Supreme Court of Idaho

November 8, 1918

MANDAMUS-PUBLIC OFFICERS-VILLAGE ORDINANCES-STATUTORY CONSTRUCTION.

1. Where the intent of a village ordinance is clear, courts are not required to resort to rules of construction in order to determine its meaning.

2. The existence of an adequate remedy in the ordinary course of law, either legal or equitable in its nature, will prevent the issuance of a writ of mandate.

3. Held, that in this case the relator did not have a plain speedy and adequate remedy in the ordinary course of law.

4. A citizen has a right to a writ of mandate to compel public officers to perform a statutory public duty, even though he may have a right of action against a private individual which would redress the private injury to himself.

5. Public officers may be compelled by writ of mandate to perform their official duties, although the details of such performance are left to their discretion.

6. The power to provide for the demolition of buildings constructed in violation of an ordinance establishing fire limits within a village is necessarily implied in order to make the ordinance effective, where the statute authorizes the village to prescribe fire limits within which no building shall be constructed except of brick, stone or other incombustible material, with fire-proof roof.

7. An ordinance can be repealed only in pursuance of the same method required for its enactment.

8. In an action for a writ of mandate to require the enforcement of an ordinance prescribing fire limits, and providing for the demolition of buildings erected in violation thereof, members of the board of trustees of the village, and the chairman thereof, are the officers to whom the writ should be directed.

[As to mandamus against public officer, see note in 98 Am.St. 863. As to duties performance of which may be compelled by mandamus, see note in 125 Am.St. 492]

APPEAL from the District Court of the Fourth Judicial District, for Twin Falls County. Hon. W. A. Babcock, Judge.

From judgment granting peremptory writ of mandate, defendants appeal. Modified and affirmed.

Cause remanded with instructions. No costs awarded on this appeal.

Guthrie & Bowen and A. R. Hicks, for Appellants.

Under the doctrine of "ejusdem generis," the words "any other building" following an enumeration of particular classes, as in ordinance No. 21 in question, is to be read as "other such like." (36 Cyc. 1120.)

The statutory provision, Rev. Codes, sec. 4978, that mandamus is a proper remedy under certain circumstances where there is no plain, speedy and adequate remedy at law, means the lack of any adequate remedy by statute, at law, or in equity. (2 Bailey on Habeas Corpus, p. 829; 26 Cyc. 168, 280; Turney v. Morrissey, 22 Cal.App. 271, 134 P. 335.)

For one to invoke mandamus, he must have a special interest differing from that pertaining to the general public. (Marini v Graham, 67 Cal. 130, 7 P. 442; Fritts v. Charles, 145 Cal. 512, 78 P. 1057.)

If injury complained of was special and irreparable, injunction was proper remedy. (First Nat. Bank v. Sarles, 129 Ind. 201, 28 Am. St. 185, 28 N.E. 434, 13 L. R. A. 481.)

Mandamus cannot be used as a preventive writ, or as substitute for injunction. (26 Cyc. 143.)

Writ does not lie to compel the doing of any act calling for exercise of discretion. (State v. Brewer, 39 Wash 65, 109 Am. St. 858, 4 Ann. Cas. 197, 80 P. 1001.)

Village has no power to authorize building to be demolished; village has powers given by statute. (28 Cyc. 258.)

Walters & Hodgin and Taylor Cummins, for Respondent.

Enforcement of ordinances is clearly a duty imposed by law upon the village trustees.

"Mandamus will issue against public boards and legislative bodies to coerce the performance by them of mandatory ministerial duties, being those as to which they have no discretionary powers or functions." (3 Abbott on Municipal Corporations, sec. 1114; High on Extraordinary Legal Remedies, 3d ed., sec. 325.)

Corporate authorities have no power to suspend an ordinance nor to authorize a violation of it. (2 McQuillin on Municipal Corporations, sec. 669; Ristine v. Clements, 31 Ind.App. 338, 66 N.E. 924; High on Extraordinary Legal Remedies, 3d ed., sec. 333.)

A private citizen is a competent party to a mandamus proceeding to compel public officers to enforce a local ordinance, and it is not necessary that relator should show a special injury to entitle him to proceed by mandamus. (2 McQuillin on Municipal Corporations, sec. 804; State ex rel. Wear v. Francis, 95 Mo. 44, 8 S.W. 1; People v. Ahearn, 124 A.D. 840, 109 N.Y.S. 249; People ex rel. Pumpyansky v. Keating, 168 N.Y. 390, 61 N.E. 637; People v. Stover, 145 A.D. 259, 130 N.Y.S. 92; State v. Gardner, 32 Wash. 550, 98 Am. St. 858, 73 P. 690.)

The village has power to authorize buildings to be removed or demolished and reconstructed in conformity with ordinance. ( State ex rel. Wear v. Francis, supra; City of New York v. Knickerbocker Trust Co., 104 A.D. 223, 93 N.Y.S. 937; City of New York v. Rice, 198 N.Y. 124, 91 N.E. 283, 28 L. R. A., N. S., 375.)

RICE, J. Budge, C. J., and Morgan, J., concur.

OPINION

RICE, J.

On April 17, 1916, the plaintiff filed a petition in the district court for a writ of mandate directed against the defendants. The defendants included the duly elected, acting and qualified trustees of the village of Filer, in Twin Falls county; one L. D. Allen, who was alleged to be the duly elected, acting and qualified constable of said village, and the Gem State Lumber Company, a corporation. The writ was sought in order to command the officers of the village to enforce the provisions of an ordinance fixing the fire limits therein, and to require the lumber company to obey the terms and provisions of the said ordinance. A general demurrer interposed to the petition was overruled. It would appear from the record that an answer was thereafter filed, but the answer does not appear in the transcript. The action was tried, and resulted in a judgment directing the issuance of a peremptory writ. The defendants appeal.

The building which it is claimed was erected in violation of the ordinance is a wooden lumber shed, 20 ft. wide and 150 ft. long. It is contended by appellants that the structure complained of is not prohibited by the ordinance, section 2 of which reads as follows: "No person or persons shall erect or cause to be erected in the above described restricted territory, any store building, office building, garage, or any other building, except barns and residences, unless the same shall be constructed with exterior walls built of brick, stone, adobe or concrete, and shall have a metal, slate, tile, brick, concrete or composition roof, and the side walls of such building shall extend two feet above the roof." It is argued that in construing this section of the ordinance the rule known as that of "ejusdem generis" should be applied, and that only buildings of the same general class as those enumerated are prohibited. Where, however, the meaning of an ordinance is clear, courts are not obliged to resort to the various rules of construction in order to arrive at the intent of the enactment. It is plain that all buildings are prohibited, except barns and residences. Nor should the suggestion that the structure complained of was denominated by appellants as a shed, and therefore not a building, receive consideration. This shed is a building within the meaning of the ordinance.

The serious questions are whether the relator may bring this proceeding and whether mandamus is the proper remedy.

It has been held that it is not necessary that a relator, who is a citizen of the municipality, show a special injury to himself or his property to entitle him to proceed by mandamus to compel public officers to enforce a municipal ordinance. (2 McQuillin on Municipal Corporations, sec. 804; State ex rel. Wear v. Francis, 95 Mo. 44, 8 S.W. 1; People v. Ahearn, 124 A.D. 840, 109 N.Y.S. 249; People ex rel. Pumpyansky v. Keating, 168 N.Y. 390, 61 N.E. 637; People v. Stover, 145 A.D. 259, 130 N.Y.S. 92.)

It is contended that the relator has a plain, speedy and adequate remedy in the ordinary course of law, and that therefore the writ should not issue. Art. 5, sec. 1 of the constitution provides that "the distinctions between actions at law and suits in equity, and the forms of all such actions and suits, are hereby prohibited; and there shall be in this state but one form of action for the enforcement or protection of private rights or the redress of private wrongs, which shall be denominated a civil action." We think the existence of an adequate remedy in the ordinary course of legal procedure, either legal or equitable in its nature, would prevent the issuance of the writ.

It is suggested that the relator might have prevented the erection of the building by an injunction, and that the remedy would be adequate. A person owning property within the fire limits of a city or village who will suffer serious or irreparable injury to his property by reason of the erection of a building in violation of the provisions of an ordinance fixing the fire limits may prevent the erection of such building by injunction. (Bangs v. Dworak, 75 Neb. 714, 106 N.W. 780, 5 L. R. A., N. S., 493; First Nat. Bank v. Sarlls, 129 Ind. 201, 28 Am. St. 185, 28 N.E. 434, 13 L. R. A. 481. See, also, Kaufman v. Stein, 138 Ind. 49, 46 Am. St. 368, 37 N.E. 333.) We do not think, however, that the remedy by injunction in this case is...