City of Mobridge v. Brown

• Decision Date: 07 August 1917
• Docket Number: No. 4126.,4126.
• Citation: 39 S.D. 270,164 N.W. 94
• Parties: CITY OF MOBRIDGE v. BROWN.
• Court: South Dakota Supreme Court

39 S.D. 270

164 N.W. 94

CITY OF MOBRIDGE

v.BROWN.

No. 4126.

Supreme Court of South Dakota.

Aug. 7, 1917.

Appeal from Circuit Court, Walworth County; Joseph H. Bottum, Judge.

Action by the City of Mobridge and another against A. H. Brown. From an order overruling a demurrer to defendant's answer, plaintiff city appeals. Affirmed.J. E. Clayton and P. C. Morrison, both of Mobridge, for appellant.

Brown & Smith, of Selby, for respondent.

GATES, P. J.

Defendant applied to plaintiff city, a city under the commission form of government, for a permit to erect a one-story brick building within the fire limits of the city. The permit was granted, then revoked, and this action was brought by the city and P. C. Morrison to enjoin defendant from constructing the building. Plaintiff city appeals from an order overruling a demurrer to one of the separate defenses contained in defendant's answer.

This defense alleges among other things, that the defendant's proposed building is to be erected for the purpose of a moving picture show; that the specifications therefor in all respects comply with the laws and ordinances of the city; that the action of the board of commissioners of the city in refusing the permit is willful, selfish, arbitrary, malicious, and without excuse, and for the purpose of injuring, annoying, damaging, and harassing defendant, and for the purpose of allowing one of the city commissioners to complete and get in operation a moving picture show in the adjacent building in process of erection by coplaintiff Morrison, and that during the time between the granting of the permit and its revocation defendant purchased a large quantity of building material for his building. The specifications for the building, set out in full in the answer, show that they comply with the ordinances of the city, except the ordinance prohibiting the erection of a one-story building upon certain territory, including defendant's lot.

[1] We find no statutory authority for the latter ordinance; hence it exceeded the city's power. The only question remaining is whether the answer set up a defense, viz. whether the city commissioners may arbitrarily refuse a building permit to one who has complied, or plans to comply, with all the laws and ordinances of the city in respect to building operations.

[2] Much elementary matter is urged in the brief asserting the independence of the legislative and administrative departments of the government from interference by the judicial power, with which we entirely agree; but the answer in this case takes it...