City of Helena v. Kent

• Citation: 80 P. 258,32 Mont. 279
• Parties: CITY OF HELENA v. KENT.
• Decision Date: 31 March 1905
• Court: United States State Supreme Court of Montana

80 P. 258

32 Mont. 279

CITY OF HELENA v. KENT.

Supreme Court of Montana

March 31, 1905

Milburn J., dissenting in part.

Commissioners' Opinion. Appeal from District Court, Lewis and Clarke County Henry C. Smith, Judge.

S. O Kent was convicted of violating an ordinance of the city of Helena, and he appeals from the judgment and from an order overruling a motion for a new trial. Affirmed.

E. A Carleton, for appellant.

E. C. Day and Edward Starsky, for respondent.

POORMAN C.

The defendant was accused in a police court of the city of Helena of violating an ordinance requiring him to keep the sidewalk in front of the premises occupied by him free from ice and snow. On the trial before a jury he was found guilty, and from the judgment entered appealed to the district court, where the case was again tried to a jury, resulting in a verdict of guilty, and judgment was entered against the defendant. Defendant then filed his motion for a new trial, which was overruled. This appeal is from the judgment and from the order overruling a motion for a new trial.

1. The appellant contends that the city had no authority to pass the ordinance in question requiring a mere tenant or occupant to keep the sidewalk in front of the premises occupied by him free from ice, snow, etc. Section 10 of the ordinance complained of (article 3, c. 17), is as follows: 'It shall be the duty of the occupant of any premises within the city limits, or in case the same are unoccupied, then of the owner or his agent to keep the sidewalks in front of and adjoining his premises clean and safe for pedestrians, and to repair the same from time to time, and such occupant, owner or agent, shall, with all reasonable dispatch, remove snow, ice, slush, mud or other impediment to safe and convenient foot travel, and prevent the continuance and accumulation of the same. Every person failing to comply with the provisions of this section shall be deemed guilty of committing a nuisance, and upon conviction thereof shall be fined not less than one dollar nor more than fifty dollars, and a like sum for each day that such nuisance is continued. ' There is no principle of law better established than that a city has no power except such as is conferred upon it by legislative grant, either directly or by necessary implication. Section 4700 of the Political Code reads. 'A city or town is a body politic and corporate, with the general powers of a corporation, and the powers specified or necessarily implied in this title, or in special laws heretofore enacted. ' Section 4703 of the same Code provides that a city 'has such other powers as are incident to municipal corporations not inconsistent with the laws of the United States or of the state. ' The act of the legislative assembly of March 8, 1897 (Sess. Laws 1897, p. 203), amending section 4800 of the Political Code, provides that a city has power, among other things:

'(1) To make and pass all by-laws, ordinances, orders and resolutions not repugnant to the Constitution of the United States, or of the state of Montana, or of the provisions of this title, necessary for the government or management of the affairs of a city or town, for the execution of the powers vested in the body corporate, and for carrying into effect the provisions of this title.'

'(7) To provide for lighting and cleaning the streets, alleys, and avenues; to regulate the use of sidewalks, and to require the owners of premises adjoining to keep the same free from snow or other obstruction, to regulate the deposition and removal of ashes, garbage or other offensive matter, in any street, alley, or on public grounds or on any premises, and to provide for levying the cost of such removal as a special tax against the property from which such matter was deposited.

'(8) To provide for and regulate street crossings, curbs, and gutters; to regulate and prevent the use or obstruction of streets, sidewalks and public grounds, by signs, poles, wires, posting hand-bills or advertisements, or any obstruction.'

'(33) To define and abate nuisances and to impose fines upon persons guilty of creating, continuing or suffering a nuisance to exist on the premises which they occupy or control.'

If the city had power to pass this ordinance, such power must be within the authority conferred by the statutes above quoted all of which are a part of the same title. This court, in Davenport v. Kleinschmidt, 6 Mont. 502, on page 527, 13 P. 249, quotes with approval from Judge Dillon's work on Municipal Corporations the following: 'It is a general and undisputed proposition of law that a municipal corporation possesses and can exercise the following powers, and no others: First, those granted in express words; second, those necessarily or fairly implied in or incident to the powers expressly granted; third, those essential to the declared objects and purposes of the corporation--not simply convenient, but indispensable. Any fair, reasonable doubt concerning the exercise of power is resolved by the courts against the corporation, and the power is denied. Of every municipal corporation the charter or statute by which it is created is its organic act. ' Section 4700, taken in connection with section 4703 and subdivision 1, supra, constitute a general grant of power, as well as a limitation of power, for authority is given to the city to pass all ordinances necessary for its government and management, and such ordinances shall not contravene constitutional or statutory provisions. In effect, these provisions state what is usually termed the 'general welfare clause,' and under such a clause it is well established that, in the absence of statutory prohibition, the city, in the exercise of its police power, may 'establish all suitable ordinances for administering the government of the city, the maintenance of peace and order, the preservation of the health of the inhabitants, and the convenient transaction of business within its limits, and for the performance of the general duties required by law of municipal corporations. ' McQuillin, Municipal Ordinances, § 434; Crum v. Bray (Ga. 1905) 49 S.E. 686. This ordinance is essentially a police regulation, and its enforcement an exercise of police power. This power was well known to the common law, and was defined by Blackstone more than 20 years prior to the adoption of the Constitution of the United States. 4 Black. Comm. 162. Municipal corporations have exercised this power from the beginning of our government, and it is necessary to the tranquility, safety, and protection of every well-ordered community; and constitutions and statutes, in the absence of provisions to the contrary, are to be construed with reference to that fact. Village of Carthage v. Frederick, 122 N.Y. 268, 25 N.E. 480, 10 L. R. A. 178, 19 Am. St. Rep. 490. 'That power is very broad and comprehensive, and is exercised to promote the health, comfort, safety, and welfare of society. *** Under it the conduct of an individual and the use of property may be regulated so as to interfere to some extent with the freedom of the one and the enjoyment of the other. In re Jacobs, 98 N.Y. 98, 50 Am. Rep. 636. All property is held under the general police power of the state to so regulate and control its use in a proper case as to secure the general safety and the public welfare. ' People v. Gillson, 109 N.Y. 389, 17 N.E. 343, 4 Am. St. Rep. 465. The exercise of this power must certainly have some relation to the public health, comfort, and safety, for the rights of property cannot be invaded under the guise of a police regulation for the protection of health when it is manifest that such regulation would not have that effect. In re Goddard, 16 Pick. 504, 28 Am. Dec. 259, involved the collection of a penalty imposed for the violation of an ordinance requiring the owners or occupants of houses bordering on streets to remove the snow from their respective sidewalks. The court, in considering the questions presented, said with reference to this ordinance: 'But we think it is rather to be regarded as a police regulation, requiring a duty to be performed, highly salutary and advantageous to the citizens of a populous and closely built city, and which is imposed upon them because they are so situated as that they can most promptly and conveniently perform it; and it is laid, not upon a few, but upon a numerous class--all those who are so situated--and equally upon all who are within the description composing the class. *** Although the sidewalk is part of the public street, and the public have an easement in it, yet the adjacent occupant often is the owner of the fee, and generally has some peculiar interest in it and benefit from it distinct from that which he enjoys in common with the rest of the community. He has this interest and benefit often in accommodating his cellar...