City of Eureka v. Wilson

• Decision Date: 16 February 1897
• Docket Number: 777
• Citation: 48 P. 150,15 Utah 67
• Court: Utah Supreme Court
• Parties: EUREKA CITY, RESPONDENT, v. R. G. WILSON, APPELLANT

48 P. 150

15 Utah 67

EUREKA CITY, RESPONDENT, v. R. G. WILSON, APPELLANT

No. 777

Supreme Court of Utah

February 16, 1897

Appeal from the Fifth district court, Juab county. Hon. E. V Higgins, Judge.

R. G Wilson was convicted in the justice's court of Eureka City of the violation of an ordinance of that city which defines its fire limits and provides that no wooden building shall be erected within such limits except certain small buildings described in the ordinance, and appeals.

Affirmed.

J. W N. Whitecotton, for appellant.

That this ordinance is unconstitutional and void; see the following authorities: Bissonies v. City of Indianapolis, 71 Ind. 189; City of Richmond v. Dudley, 28 Am. St. R. 180; State v. Tenant, Id. 715; State v. Mahner, et al., 9 So. Rep. 480; Bathet v. City of New Orleans, 24 F. 563; First National Bank of Mt. Vernon v. Sarlls, 28 Am. St. R. 185; Horr & Bemis' Munic. Police Ordinances, 5 and 10; City of Newton v. Belger, 143 Mass. 598; City of Plymouth v. Schultheis, 135 Ind. 339.

B. N. C. Scott and Williams, Van Cott & Sutherland, for respondent.

Cited: Commonwealth v. Abrahams, 156 Mass. 57; Barbier v. Connolly, 113 U.S. 31; Railway Co. v. Beckwith, 129 U.S. 29; 18 Am. & Eng. Enc. Law, p. 746; Lowell v. Simpson, 10 Allen 88; Tate v. Greenboro, (N. C.) 24 L. R. A. 671; Rodwick v. Wheeler, 51 Hun. 620; State v. White, 64 N.H. 48; People v. Mulholland, 82 N.Y. 324; Crowley v. Christensen, 137 U.S. 86.

The ordinance in question is clearly within the police power of the state and city, and even though in conflict with the fourteenth amendment to the federal constitution, it should be upheld. Minnesota, etc., R. Co. v. Beckwith, 129 U.S. 29; Barbier v. Connolly, 113 U.S. 31.

The courts have nothing to do with the wisdom, policy, or necessity of a law or ordinance; their inquiry ends with the determination that the power to pass it exists. 18 Am. & Eng. Ency. Law, page 746, notes 2 and 3; 96 U.S. 528; 129 U.S. 29.

BARTCH, J. ZANE, C. J., and MINER, J., concur.

OPINION

BARTCH, J.:

This case was commenced before a justice of the peace, and the defendant, after having been convicted of a violation of an ordinance of Eureka City which forbids the erection of wooden buildings, without permission, within certain defined limits, appealed to the district court, and, upon conviction and fine there, to this court.

The record presents several questions, raised on behalf of the appellant, respecting the rulings of the district court as to the sufficiency of the complaint before the justice of the peace, and the allowance of amendments thereto. These questions simply relate to the interpretation which the district court put upon various provisions of statute, and do not affect the validity or constitutionality of a statute. We have no power to consider such questions in this class of cases, because, under section 9 of article 8 of the constitution, the decision of a district court on all questions except those affecting the validity or constitutionality of a statute is final and conclusive. We so held in the case of City of Eureka v. Wilson (decided at the present term), 15 Utah 53, 48 P. 41, to which we refer for our opinion on this point. In that case we also discussed the question whether an appeal would lie in a case like one where the validity of a city ordinance, and not of a statute, is involved; and on the authority of that case, and in conformity with it, we hold that the appeal herein was properly taken, and that we have jurisdiction to determine the validity of the ordinance under which the appellant was convicted, but have no jurisdiction to determine any other question presented.

The principal question to be determined in this case, therefore, is whether the ordinance under which the appellant was convicted and fined is constitutional and valid. Counsel on behalf of the appellant insists that it conflicts with section 1 of article 14 of the amendments to the constitution of the United States, and that it delegates legislative power to a committee of the city council, and is therefore void. The provisions of the ordinance in controversy here may be found in section 2, Ordinance No. 16 of Eureka City, and read as follows: "Every building hereafter erected within the fire limits of this city shall be of brick, stone, iron, or other substantial or incombustible material, and only the following wooden buildings shall be allowed to be erected, except as herein-after provided, viz.: Sheds to facilitate the erection of authorized buildings, coal sheds not exceeding ten feet in height, and not to exceed one hundred feet in area, and privies, not to exceed thirty-six feet in area and ten feet in height, and all such sheds and privies shall be separate structures: provided, that any person desiring to erect a building of other material than those above specified within said fire limits, shall first apply to the committee on buildings within said fire limits of the city for permission so to do, and if the consent of the committee on building within said fire limits shall be given, they shall issue a permit, and it shall thereupon be lawful to erect such building under such regulations and restrictions as the committee on building within said fire limits may provide." The authority under which this ordinance was passed can be found in subdivision 54, § 1755, Comp. Laws Utah, 1888, which provides that the city council shall have power, among other things, as follows: "To define the fire limits and prescribe limits within which no building shall be constructed, except brick, stone, or other incombustible material, without permission, and to cause the destruction or removal of any building constructed or repaired in violation of any ordinance; and to cause all buildings and inclosures which may be in a dangerous state to be put in a safe condition." This provision of the statute confers upon the city council of any incorporated city in this state the power to establish fire limits, and to prohibit, within such limits, without permission, the erection of any building with combustible material, leaving all persons free to erect buildings of brick, stone, or other incombustible material within such limits. The erection of buildings with combustible material may be prohibited by ordinance, and the granting of permission for the erection of such buildings may likewise, by ordinance, be regulated and restricted. Such was doubtless the intention of the legislature. The power thus conferred by the legislature upon the city council is, however, of a legislative character, and may not be delegated by the council to a committee. Such power being vested in the council, it must be exercised by it. If an ordinance specifies fire limits in a city in accordance with the statute, and prohibits the construction of buildings of wood or of any combustible material within such limits, without permission, and also prescribes proper regulations and restrictions under which such permission shall be granted to all applicants under like circumstances, it is valid, notwithstanding it confers power upon an officer or committee to grant permission to erect such buildings in conformity with its provisions. The power to grant the permission does not vest in the officer or committee an arbitrary discretion, but it vests in him or them merely a legal discretion, which must be exercised fairly, reasonably, and honestly. An ordinance of such a character is authorized by the statute, as well as by the police power of the state, and does not contravene section 1 of article 14 of the amendments to the constitution of the United States. City of Eureka v. Wilson, supra.

Section 1 of the ordinance in question in this case defines the fire limits of Eureka City. Section 2, above quoted, in conformity with the statutes, prescribes the kind of material to be used in the construction of buildings within the fire limits, which shall be brick, stone, iron, or other incombustible material. It also prescribes that certain classes of buildings, giving particular descriptions of the same, may be constructed with combustible material within such limits. Then...