City of Bismarck, a Municipal Corporation v. Hughes

• Citation: 208 N.W. 711,53 N.D. 838
• Decision Date: 16 March 1926
• Court: North Dakota Supreme Court

208 N.W. 711

53 N.D. 838

CITY OF BISMARCK, a Municipal Corporation, Respondent, v. LAURA W. HUGHES and W. A. Hughes, Appellants

Supreme Court of North Dakota

March 16, 1926

Appeal from the District Court of Burleigh County, Jansonius, J.

Affirmed.

W. L Smith, for appellants.

Chapter 175 of the Session Laws of 1923 violates the Constitution of the state and of the United States in that it takes private property for public use without compensation and deprives the citizen of his liberty and property without due process of law. Spann v. Dallas, 19 A.L.R. 1387, 235 S.W. 513; Milliken v. Weatherford, 54 Tex. 388; Re Hong Wah 82 F. 623; People ex rel. Lankton v. Roberts, 90 Misc. 439, 153 N.Y.S. 143; Willison v. Cooke, 54 Colo. 320, 44 L.R.A.(N.S.) 1030, 130 P. 828; State v Whitlock, 149 N.C. 542, 129 Am. St. Rep. 670, 63 S.E 123, 16 Ann. Cas. 765; Fruth v. Board of Affairs, 75 W.Va. 456, L.R.A.1915C, 981, 84 S.E. 105.

Courts take judicial notice of facts and conditions in a state which cause a demand for the enactment of statutes. See Clark v. Nash, 198 U.S. 361, 49 L.Ed. 1085.

The statute granting power to a municipal corporation is to be strictly construed, and any reasonable doubt as to the existence of a power must be resolved against the municipality. Syracuse v. Snow, 205 N.Y.S. 785; People ex rel. Friend v. Chicago, 261 Ill. 16, 19, 103 N.E. 609.

This ordinance limits the area of lots that may be covered by buildings and their accessories to 25 per cent of the lot area on inside lots and 45 per cent of the lot area on corner lots. This is an unreasonable limitation. State ex rel. Church v. Edgcomb, 108 Neb. 859, 189 N.W. 617; Barrett v. Rickard, 85 Neb. 769, 124 N.W. 153; Railway Co. v. Illinois, 200 U.S. 561, 50 L.Ed. 596; Byrne v. Maryland Realty Co., 129 Md. 202, L.R.A.1917A, 1216.

As to the validity of regulations fixing a building line and holding such regulations not within the police power and in the taking of private property without compensation, see Kansas City v. Liebi, 28 A.L.R. 295, 314, 252 S.W. 404.

Newton, Dullam & Young, for respondent.

It may be said in a general way that the police power extends to all the great public needs. Camfield v. United States, 167 U.S. 518, 42 L.Ed. 260, 17 S.Ct. 864. It may be put forth in aid of what is sanctioned by usage or held by the prevailing morality or strong and preponderant opinion to be greatly and immediately necessary to the public welfare. Noble State Bank v. Haskell, 219 U.S. 104, 55 L.Ed. 112.

We hold that the police power of a state embraces regulations designed to promote the public convenience or the general prosperity, as well as regulations designed to promote the public health, the public morals, and the public safety. Chicago, B. & Q. R. Co. v. Illinois, 200 U.S. 592, 50 L.Ed. 596.

The interests of the individual are subordinate to the public good and the constitutional guaranties of the security of private property were not designed and do not operate to prohibit the reasonable restriction of its use by legislation enacted within the sphere of the police power for the promotion of the general welfare. Overton v. Harrington, 126 Md. 32, 94 A. 325.

Richardson, Green & Wattam, amici curiae.

Esthetic considerations are a matter of luxury and indulgence rather than of necessity, and it is necessity alone which justifies the exercise of the police power to take private property without compensation. Cooper Co. v. Dammers, 125 A. 325.

It might add to the general attractiveness of the city to preserve this private vista, but, if so, it would seem to be a matter to be governed by an eminent domain principle, with compensation to the owner, rather than the zoning practice, with loss to him. Isenbart v. Barnett, 201 N.Y.S. 383.

While their reasoning recognizes the esthetic, their rulings, following the principles which have their origin in the common law concerning individual and property rights, are definitely utilitarian. Not only is this manifested in the adjudicated cases, but it finds expression in the organic and statutory laws of the state and the charter and ordinances of its municipalities. State v. McKelvey, 256 S.W. 474.

The power thus granted to the board of review is too arbitrary and indefinite to be sustained. Goldman v. Crawther, 128 A. 50.

A council or commission is a miniature legislative body, and ordinarily is entitled to the presumption indulged with respect to statutes enacted by state legislatures. Cox v. Mignery, 105 S.W. 675; Pierce Oil Corp. v. Hope (Ark.) 191 S.W. 405.

BURKE, J. CHRISTIANSON, Ch. J., and NUESSLE and JOHNSON, JJ., and WOLFE, Dist. J., concur. BIRDZELL, J., not participating; Honorable CHAS.E. WOLFE, Judge of the Third Judicial District, sitting in his stead, by request.

OPINION

BURKE, J.

In 1923 the legislature passed the "Standard State Zoning Enabling Act," under which, municipalities can adopt zoning regulations, and which was prepared by the advisory committee on zoning, appointed by Secretary Hoover, Secretary of Commerce, Washington, D. C. There is in said zoning act a grant of power to cities in excess of 6,000 inhabitants to regulate and restrict the height, number of stories, and size of buildings and other structures, the percentage of lot that may be occupied, the size of yards, courts, and other open spaces, the density of population and the location and use of buildings, structures, and land, for trade industry, residence or other purposes. It is declared therein, "That such regulations shall be made in accordance with a comprehensive plan and designed to lessen congestion in the streets; to secure safety from fire, panic, and other dangers; to promote health, the general welfare; to provide adequate light and air, to prevent the over-crowding of land; to avoid undue concentration of population; to facilitate the adequate provisions of transportation, water, sewerage, schools, parks, and other public requirements. Such regulations shall be made with reasonable consideration, among other things as to the character of the district and its peculiar suitability for particular uses, with a view to conserving the value of buildings and encouraging the most appropriate use of land throughout the city."

It provides for a zoning committee, and a board of adjustment to hear and decide appeals from and review any order, requirement or decision made by an administrative official charged with the enforcement of an ordinance and every decision of such board is subject to review by certiorari. Under and by virtue of said law the city of Bismarck passed a comprehensive zoning ordinance, dividing the city of Bismarck into four districts namely, "A" resident district, "B" resident district, "C" commercial district, "D" industrial district.

The defendant Laura W. Hughes is the owner of lot 1, block 42 Northern Pacific Addition to the city of Bismarck, and said property is located in residence district "A," a corner lot at the intersection of 7th street and Ave. "C." The lot was vacant when the zoning ordinance was passed, and any building erected thereon, under said ordinance must have a front yard facing on 7th street at least 22 feet in depth, and a side yard on Ave. "C" of at least 10 feet in width; said building not to accommodate more than two families.

On the 14th of August, 1924, Mr. Hughes, husband of Laura Hughes appeared before the board of adjustment on petition to construct a four family apartment house on said lot, which petition was refused for the reason that the building of a four family apartment house on said lot would be a violation of the zoning ordinance.

On May 13, 1925, the board of adjustment having before it for consideration the appeal of defendant Hughes, from an order of the city commission denying the defendants' petition to build a four family house on said lot; after due consideration the action of the city commission denying such petition was duly approved. About May 2, 1925, the defendants began the construction on the property of a two story building 32 x 36 feet, intended to be used for living apartments for four families. The side yard on Ave. "C" at no point exceeds 2 feet, 6 inches, for a distance of 13 feet or more the building is flush with the street line on Ave. "C" and the front yard is 15 feet 3 inches in depth.

Plaintiff brought this action to restrain and enjoin the defendants from building the proposed building on said lot, for the reasons that it is in violation of said ordinance; in size and in open spaces on front and side streets.

Section 9, subdivision "C" of the ordinance reads as follows:

"In computing the depth of a front yard in the "A" and "B" residential districts, in portions which have been partly built up, where the average established depth of front yard of buildings with front yards fronting on one side of any given street between two cross streets exceeds the requirements under this ordinance, the depth of the front yard of future buildings fronting on said portion of streets as required under this ordinance shall be increased to conform with such average, which need not, however, exceed 25 feet. If the average established depth of front yard is less than that required under this ordinance, the depth of the front yard may be decreased to conform with such average which shall in no case be less than 10 feet. No existing building shall be altered to decrease the depth of the front yard so that the same shall fall below or still further fall below the requirement of this paragraph for future building."

Under this section of the ordinance, the side street must be at least ten feet in width, and the size of the front yard is computed so as to prevent the building of new houses nearer the street than those already...