City of Brookings v. Martinson
| Decision Date | 21 February 1933 |
| Docket Number | No. 7337.,7337. |
| Citation | 61 S.D. 168,246 N.W. 916 |
| Parties | CITY OF BROOKINGS v. MARTINSON. |
| Court | South Dakota Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Brookings County; W. W. Knight, Judge.
Action by the City of Brookings, S. D., against Charles Martinson. From a judgment dismissing the action, plaintiff appeals.
Affirmed.
See, also, 243 N. W. 915.Herbert E. Cheever and Walter M. Cheever, both of Brookings, for appellant.
B. H. Schaphorst, of Brookings, for respondent.
This action was brought to enjoin the defendant from the erection and operation of a filling station in a district of the city of Brookings that had been set aside for residential purposes only. The trial court held that the ordinance under which the action was brought was invalid and ineffective as a zoning ordinance, and dismissed the action. From this judgment, plaintiff appeals.
By chapter 176, Laws 1927, the governing bodies of municipal corporations were authorized to district cities and towns and prescribe the size and character of buildings, and the purposes for which such buildings might be used in such districts. This was to be accomplished by the adoption of a resolution for that purpose. Section 4 of said chapter provides that a resolution prescribing the districts and restrictions shall be proposed to the governing body of the municipality. Such resolution which must specify a time when a hearing may be had thereon, shall be published in the official newspaper of the municipality once a week for three successive weeks. At the time provided for such hearing, all interested parties shall be given a “full, fair and complete hearing.” If adopted, and no objections are filed as provided by said section, said resolution will go into effect twenty days after such adoption, without further publication. This statute was approved on the 11th day of March, 1927, and went into effect on the 1st day of July of said year.
[1] By chapter 18, of the Special Session of 1927, section 4 of chapter 176, Laws 1927, was amended to read as follows: * * *”
This statute was approved on the 9th day of July, 1927. During the month of July, 1929, the governing body of the city of Brookings decided to “zone” the city. For some reason, wholly unexplained by the record, the city commission disregarded chapter 18 of the Special Session of 1927, and followed the provisions of section 4 of chapter 176, which had been repealed by chapter 18, Special Session 1927. They proposed a resolution that in all respects appears to comply with the provisions of section 4 of chapter 176, Laws 1927. The notices required by that section were given; the necessary steps for compliance with the provisions of said statute were taken and the resolution was adopted. Such resolution was given but one reading before adoption, and was not published after adoption, as is required in case of the enactment of city ordinances. The said city commission then enacted an ordinance containing the same provisions as are contained in the said resolution. This ordinance was enacted in the manner usual in the enactment of city ordinances. No notice was given of the time and place for a hearing thereon, and no provision was made for such hearing. The result was that said ordinance was not effective as a zoning ordinance.
[2] It is the contention of appellant that the resolution above mentioned was adopted with all the formality of an ordinance, and should be given the force of an ordinance. In support of this contention appellant cites the following authorities: 19 R. C. L. 895, note 18; 43 C. J. 519, note 82; Steenerson v. Fontaine, 106 Minn. 225, 119 N. W. 400;City of Barre v. Perry & Scribner, 82 Vt. 301, 73 A. 574;Massey v. Bowling Green, 206 Ky. 692, 268 S. W. 348;Swann v. Buck, 40 Miss. 268-293;In re Senate File No. 31, 25 Neb. 864, 41 N. W. 981-984;Hevelone v. City of Beatrice, 120 Neb. 648, 234 N. W. 791. But none of these cases are analogous to the present case, and are not controlling in this case.
“Where the legislature has not prescribed any particular form for an ordinance, the municipal bodies may use any form of expression which suits them,...
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