City of Bismarck v. Hughes

• Citation: 53 N.D. 838,208 N.W. 711
• Decision Date: 16 March 1926
• Docket Number: No. 4981.,4981.
• Parties: CITY OF BISMARCK v. HUGHES et al.
• Court: United States State Supreme Court of North Dakota

53 N.D. 838

208 N.W. 711

CITY OF BISMARCK

v.HUGHES et al.

No. 4981.

Supreme Court of North Dakota.

March 16, 1926.

Syllabus by the Court.

The enactment of police regulations is a legislative function, and the courts cannot question the reasonableness or policy of a statute, and cannot interfere unless the statute is clearly repugnant to some constitutional guaranty.

Chapter 175 of the Laws of 1923, granting to cities of over 6,000 inhabitants the power 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, the location and use of buildings is a legitimate exercise of the police power, and the same is not in conflict with the Constitution of the State of North Dakota, nor the Fourteenth Amendment to the Constitution of the United States.

In construing the comprehensive zoning ordinance of the city of Bismarck, duly passed under chapter 175 of the Laws of 1923, every presumption is indulged in favor of its validity, and the question, in determining its validity, is not whether the court approves the ordinance, but whether it can pronounce it an unreasonable, arbitrary exercise of power.

The ordinance in the case at bar, restricting size of buildings, space, and yards, in residence districts, is authorized by chapter 175, Session Laws 1923. It operates equally and alike upon all residents of each district, is not unreasonable or arbitrary, and is clearly within the power granted to the city by the Legislature.

Appeal from District Court, Burleigh County; Fred Jansonius, Judge.

Suit for injunction by the City of Bismarck against Laura W. Hughes and husband. From a judgment for the plaintiff, defendants appeal. Affirmed.

W. L. Smith, of Bismarck, for appellants.

Richardson, Green & Wattam, of Fargo, amici curiæ.

Newton, Dullum & Young, of Bismarck, for respondent.

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 and 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 such city.” Laws 1923, c. 175, § 3.

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 Seventh street and avenue 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 Seventh street at least 22 feet in depth, and a side yard on avenue 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 32x36 feet, intended to be used for living apartments for four families. The side yard on avenue 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 avenue 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, subd. 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 averageestablished 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 10 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 built.

From a judgment in the district court granting an injunction restraining the defendants from building the proposed building on said lot, the defendants appeal.

It is the contention of the defendants, that the State Enabling Act, chapter 175 of the Laws of 1923, is unconstitutional, and that zoning ordinance is also unconstitutional, in this, to wit: (a) They take private property for public use without compensation; (b) they violate the Fourteenth Amendment to the Constitution of the United States, by depriving the owner of property without due process of law. The objections are urged against that part of the statute and ordinance relating to the size of buildings, the size of yards, courts, and other open spaces, and it is claimed that the regulation that the side yard on a corner lot must be at least 10 feet in width, and requiring new buildings to be in line with other residences on the same street, are unreasonable, unconstitutional, and void. Defendants further claim that, if the Enabling Act is constitutional, it does not grant to the city the power to pass such zoning ordinance.

[2] The authority to limit the size of the buildings, the size of the yards, courts, and other open spaces is specifically granted in section 1 of the act in the following language, viz.:

It (the city) “is hereby empowered to regulate and restrict the height, number of stories, and size of buildings and other structures, the percentage of lot that may be so occupied, the size of yards, courts and other open spaces, the density of population, and the location and use of buildings.”

It is clear that the Legislature has given the city commission specific authority to enact such legislation by ordinance, and there is no merit in defendant's claim that it did not. The defendants claim that if the power is granted, the Enabling Act is unconstitutional and void. Constitution, § 130, reads as follows:

“The legislative assembly shall provide by general law for the organization of municipal corporations, restricting their powers as to levying taxes and assessments, borrowing money and contracting debts, and money raised by taxation, loan or assessment for any purpose shall not be diverted to any other purpose except by authority of law.”

This section is the only provision in the Constitution relating to municipal corporations, and it leaves the Legislature entirely free to make regulations for the organization, government, and orderly building of cities by general law.

[1] The Enabling Act is a general law which applies to every city in the state of 6,000 inhabitants or more, and the ordinance is a general law that affects all parts of the city, and treats each section according to its own peculiar need, present and prospective. It operates equally upon all residents in zoning districts. It is not in conflict with the law of eminent domain, for it does not take property; it only regulates its use. It is a legitimate exercise of the police power of the state, a power which section 134 of...