Cecil v. Toenjes

• Decision Date: 21 January 1930
• Docket Number: 40008
• Citation: 228 N.W. 874,210 Iowa 407
• Parties: J. D. CECIL, Appellant, v. D. B. TOENJES et al., Appellees
• Court: Iowa Supreme Court

228 N.W. 874

210 Iowa 407

J. D. CECIL, Appellant, v. D. B. TOENJES et al., Appellees

No. 40008

Supreme Court of Iowa, Des Moines

January 21, 1930

REHEARING DENIED MAY 16, 1930.

Appeal from Black Hawk District Court.--R. W. HASNER, Judge.

This was an action in mandamus, to compel the city of Waterloo to issue the plaintiff a license permitting the operation of an oil station. The relief was denied by the district court, and the plaintiff appeals.

Affirmed.

R. P Birdsall, for appellant.

Carleton Sias, for appellees.

Ralph H. Munro, Amicus Curiae.

KINDIG J. MORLING, C. J., and EVANS, FAVILLE, ALBERT, and GRIMM, JJ., concur.

OPINION

KINDIG, J.

The plaintiff-appellant is a lessee of certain real estate in Waterloo, and has an option to purchase the same. Desiring to erect thereon "an automobile filling station," the appellant made application to the defendant-appellee D. B. Toenjes, then the Waterloo building inspector, for a license granting the former the right of storing inflammable liquids underground, in connection with the conduct of such business. Whereupon, the building inspector denied the application, because the city, through its council, would not approve it.

At the time in controversy, there was in full force and effect in Waterloo an ordinance regulating the storage of inflammable liquids. With this ordinance appellant claims he complied, and therefore he says the permit should be granted. His alleged "compliance," however, had to do with preliminary requirements relating to the consent of adjacent property owners. All preliminary demands under said ordinance are subject to the following fundamental provision therein:

"Provided * * * that the issuing of or refusal of a permit to install or locate such tanks [gasoline tanks] shall be within the sound discretion of the city council."

It is against this final declaration in the ordinance that appellant directs his attack. He says the ordinance is void.

Generally speaking, he predicates invalidity upon three grounds: First, that the ordinance in effect is confiscatory of his property, lacks uniformity in operation, and hence is unconstitutional; and second, that the ordinance is unreasonable, and so indefinite and uncertain as to permit arbitrariness and oppression in its operation; and, assuming, without conceding, the validity of the ordinance, appellant declares that the action of the building inspector and the city council was in fact arbitrary, oppressive, and captious.

Meeting those contentions, appellees maintain that the ordinance is constitutional, and the due exercise of police power. Moreover, they urge, the action of the officials under the ordinance was right, just, and fully sustained by the record.

I. Waterloo is a municipal corporation, and, as such, it possesses those powers which, first, were expressly conferred upon it by statute, and second, necessarily arise as an implication incidental to the express legislative grant. Brooks v. Incorporated Town of Brooklyn, 146 Iowa 136, 124 N.W. 868; Bear v. City of Cedar Rapids, 147 Iowa 341, 126 N.W. 324; Town of Akron v. McElligott, 166 Iowa 297, 147 N.W. 773.

II. Thus, having located the source of the municipal power, a consideration of the statute is important. Section 5714 of the 1927 Code provides:

"Municipal corporations shall have power to make and publish, from time to time, ordinances, not inconsistent with the laws of the state, for carrying into effect or discharging the powers and duties conferred by this title, and such as shall seem necessary and proper to provide for the safety, preserve the health, promote the prosperity, improve the morals, order, comfort, and convenience of such corporations and the inhabitants thereof, and to enforce obedience to such ordinances by fine not exceeding one hundred dollars, or by imprisonment not exceeding thirty days."

Contained within that legislation are elements generally known as police power. Such power had its source in the state, and by the foregoing statute was delegated to the municipality. City of Des Moines v. Manhattan Oil Co., 193 Iowa 1096, 184 N.W. 823; 43 Corpus Juris 203, Section 200; 19 Ruling Case Law 800, Section 108. See Harris v. City of Des Moines, 202 Iowa 53, 209 N.W. 454.

Armed with that power, the municipality may, under proper circumstances, regulate automobile filling stations and the explosive liquids kept for use in connection therewith. City of Clinton v. Donnelly, 203 Iowa 576, 213 N.W. 262; State ex rel. Lane v. Fleming, 129 Wash. 646 (225 P. 647); Standard Oil Co. v. City of Minneapolis, 163 Minn. 418 (204 N.W. 165); Crescent Oil Co. v. City of Minneapolis, 175 Minn. 276 (221 N.W. 6); City of Muskogee v. Morton, 128 Okla. 17 (261 P. 183); Harz v. Paxton, 97 Fla. 154 (120 So. 3); Whittemore v. Baxter Laundry Co., 181 Mich. 564 (148 N.W. 437); Storer v. Downey, 215 Mass. 273 (102 N.E. 321); Hyma v. Seeger, 233 Mich. 659 (207 N.W. 834); Hall v. Mayor and Aldermen of Jersey City (N. J.), 142 A. 344; Martin v. City of Danville, 148 Va. 247 (138 S.E. 629). See, also, City of Wichita Falls v. Continental Oil Co., (Tex. Civ. App.), 5 S.W. (2d Ser.) 561.

Not only is the city of Waterloo empowered to regulate that industry through the general grant contained in Section 5714, supra, but, in addition thereto, Section 5764 of the same Code specifically declares:

"They [cities and towns] shall have power to regulate the transportation and keeping of * * * inflammable oils, or other combustibles, and to provide or license magazines for storing the same, and prohibit their location or maintenance within a given distance of the corporate limits of such cities or towns."

Beyond doubt, therefore, the appellee city, unless prevented by constitutional restrictions, was enabled to regulate and control appellant's property so far as to prohibit, under special circumstances and conditions, the storing of inflammable oils and operating a filling station thereon.

III. But appellant contends that such act on the part of the municipality amounts to a confiscation of his property, and hence violates alleged constitutional provisions. Elaborating, for the purpose of elucidation, appellant asserts that interference with the free and full use of the premises is equivalent to taking his property without just compensation. Speaking broadly upon this subject, we said, in Rehmann v. City of Des Moines, 200 Iowa 286, 204 N.W. 267:

"It is, of course, fundamental in the law of real property situated within the limits of cities and towns, that the owner thereof may erect any structure or building thereon, or use the same for any lawful purpose that he may see fit, subject only to such restrictions and regulations as the municipality may, in the exercise of the police power, by proper enactment reasonably impose. * * * The police power, which has never been quite adequately defined, and which, as suggested by the late Justice Weaver in City of Des Moines v. Manhattan Oil Co., 193 Iowa 1096, 184 N.W. 823, is perhaps happily undefinable, is, in matters of the character before us, bounded only by constitutional limitations. Theoretically at least, there can be no conflict between the exercise of purely police power and constitutional inhibitions, as the legitimate scope of the one ends where the other begins. So long, therefore, as municipal bodies confine their enactments providing for the regulation and control of the kind or nature of buildings that may be erected upon property privately owned, and the use to which the same shall be put, within the proper limits of such power, they do not violate the property rights of the individual. The limit imposed is that the requirements, whatever they may be, must be reasonable, and for the protection of property, the public morals, or the welfare of the inhabitants of such municipality."

During the discussion of this matter in City of Des Moines v. Manhattan Oil Co. (193 Iowa 1096, 184 N.W. 823), supra, on page 1104, this court declared:

"The power to designate the subject of police regulation rests in the state alone; and if a given statute is not clearly repugnant to some constitutional guaranty, the courts are without power to interfere. Such interference, if tolerated at all, must be on the theory that the subject of the regulation is not within the legislative jurisdiction, or, if the subject be one within such jurisdiction, it must appear to the court that, looking through mere forms, and at the substance of the matter, it can say that the statute, enacted professedly in the interest of the public or general welfare, 'has no substantial relation to that object, but is a clear, unmistakable infringement of rights secured by the fundamental law.' * * * The legislature, acting within these limits, is the sole judge as to all matters pertaining to the public policy, wisdom, and expediency of the...