City of Des Moines v. Gilchrist

• Decision Date: 22 October 1885
• Citation: 67 Iowa 210,25 N.W. 136
• Parties: CITY OF DES MOINES v. GILCHRIST AND ANOTHER.
• Court: Iowa Supreme Court

67 Iowa 210

25 N.W. 136

CITY OF DES MOINES

v.GILCHRIST AND ANOTHER.

Supreme Court of Iowa.

Filed October 22, 1885.

Appeal from Polk district court.

The defendants were charged by information before the police court of the city of Des Moines with the violation of a city ordinance by erecting wooden buildings and maintaining a lumber-yard within the fire limits of the city They pleaded not guilty. A trial was had, and the defendants were found guilty, and they appealed. Upon a trial in the district court the defendants were convicted of erecting wooden buildings within the fire limits, and acquitted of the charge of establishing and maintaining a lumber-yard within the said limits upon the ground that the city council had no power under the statute to prohibit the erection and maintenance of lumber yards within the fire limits. Both parties appeal.Williamson & Kavanaugh, for plaintiff.

Barcroft & Bowen, for defendants.

ROTHROCK, J.

I. Section 482 of the Code is as follows: “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 chapter, 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 said corporation 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.”

It is further provided by statute that cities “shall have power to make regulations against danger from accidents by fire, to establish fire districts, and, on petition of the owners of two-thirds of the grounds included in any square or block, to prohibit the erection thereon of any building or addition to any building unless the outer walls thereof be made of brick and mortar, or of iron and stone and mortar, and to provide for the removal of any buildings or additions erected contrary to said prohibitions.” Code, § 457.

The ordinance under which the prosecution against the defendants' is sought to be maintained provides that it shall be unlawful for any person within certain limits to “erect any building or addition to any building not made and built with outer walls composed of iron, stone, brick and mortar, or other non-combustible material; and all persons are hereby forbidden from hereafter erecting or establishing any building within said limits the outer walls of which are composed of wood or other combustible material, or from keeping or maintaining any lumber-yard or wood-yard within said limits.”

It is conceded that the ordinance establishing fire limits was passed without the petition of the owners of two-thirds of the ground included in squares or blocks within the limits fixed by the ordinance, and the important question in the case is, was such petition necessary to give the city council authority to fix fire limits?

It is claimed by counsel for the plaintiff that the power is given in that part of section 457, above...