City of Olympia v. Mann

• Decision Date: 21 November 1890
• Citation: 25 P. 337,1 Wash. 389
• Parties: CITY OF OLYMPIA v. MANN.
• Court: Washington Supreme Court

25 P. 337

1 Wash. 389

CITY OF OLYMPIA v. MANN.

Supreme Court of Washington

November 21, 1890

Appeal from superior court, Thurston county.

C. H. Ayer and B. F. Dennison for appellant.

J W. Robinson and Cavanaugh & Fitch, for appellee.

ANDERS, C.J.

Appellee being the owner of a vacant lot on Fourth street, in Olympia described as lot 1 in block 24 of the town (now city) of Olympia, and being desirous of erecting thereon a two story frame building to be used as store rooms and offices, applied to the city council of said city, in accordance with section 8 of ordinance No. 304 of said city, entitled "An ordinance defining the fire limits, and to protect property from fire," approved April 24, 1889, for a permit to erect said building. The said lot being within the fire limits, as established by said ordinance, the city council refused permission to erect the proposed building, and notified appellee not to undertake the erection of the same. Appellee thereupon brought this action to perpetually enjoin and restrain the city and its officers from, in any manner enforcing, or attempting to enforce, said ordinance against him or his employes laboring upon said building. In his complaint he alleges, substantially, in addition to the facts above mentioned, that the boundaries of said fire limits, as fixed by said ordinance, are unreasonable, injurious, and inequitable, and the same was passed with a desire to force brick and stone buildings on Fourth and Main streets, and increase the value of neighboring property at the expense of those intending to improve; and that since the passage of said ordinance, and the rejection of plaintiff's application for a permit, the said city has granted permits for the erection of wooden buildings within said fire limits, but not on Main or Fourth streets, whereby the danger of conflagration has been much more increased than it would be by the erection of plaintiff's desired building; that said ordinance is null and void; that the said city had and has no authority to create or maintain fire limits; that the ordinance is void also for want of conformity to the city charter, and federal laws, even if the city had such power that a court of equity should prohibit its enforcement; that the city has no authority to declare anything a nuisance, and only has authority to abate such nuisances as are known and defined by statute. The complaint further sets forth the penalty prescribed by said ordinance or its violation, and avers that the defendant, the city of Olympia, through its marshal, threatens to arrest plaintiff, and all those who may be found at work on said building; that he has a large number of men employed and ready to commence work on said building, and that unless the city and its officers are restrained and prohibited from enforcing said ordinance plaintiff will suffer great and irreparable damage, for which there is no speedy or adequate remedy at law, and that the threatened arrests will create great and vexatious litigation. To this complaint the defendant filed a general demurrer, which was overruled by the court, and, defendant electing to stand upon the demurrer, judgment was rendered for plaintiff, from which defendant appeals to this court.

We are therefore called upon to decide the question whether the city ordinance complained of is or is not valid, or, in other words, whether the city council were legally empowered to pass it. This ordinance, after setting out the boundaries of the fire limits within the city, among other things, provides as follows: "Sec. 7. No wooden building shall be constructed within the fire limits, provided that the city council may grant permits to construct wooden buildings within the fire limits as hereinafter provided. *** Sec. 10. Any person who shall erect, or cause to be erected, or assist in the erection of, any building contrary to the provisions of this ordinance, or shall maintain and refuse to remove any building erected contrary to the provisions of this ordinance for ten days after receiving notice to remove the same from the firewardens, shall, upon conviction thereof, be deemed guilty of a misdemeanor, and be fined in any sum not greater than one hundred dollars, or be imprisoned in the city jail not more than thirty days, or be both fined and imprisoned, at the discretion of the court." This ordinance is assailed by counsel for appellee upon the ground that the city charter did not authorize its passage, and upon the further ground that it is unreasonable, or rather that the boundaries of the fire limits are "unreasonable, injurious, and inequitable." Among the powers granted to the city of Olympia by its charter, and which are relied on by appellant to sustain the ordinance in question, are these: "The city of Olympia shall have power to make regulations for the prevention of accidents by fire, to organize and establish a fire department, and make and ordain rules for the government of the same; to provide fire-engines, and other apparatus, and to levy and collect special taxes for that purpose; *** to prevent, by all possible and proper means, danger or risk of injury or damages by fire arising from carelessness, negligence, or otherwise; *** to adopt proper ordinances for the government of the city, and to carry into effect the powers given by this act; *** and the city of Olympia shall have such other powers and privileges, not herein specially enumerated, as are incident to municipal corporations of like character and degree." The learned counsel for appellee contends with much earnestness that, notwithstanding these legislative grants, the city had no power to enact the ordinance, for the reason that the powers, if any, conferred by the charter are general in their nature, and that a special grant of power is necessary to authorize the establishment of fire limits, or the prevention of the erection of wooden buildings within the city. To sustain this position counsel cites, among others, the following, as especially in point: City of Keokuk v. Scroggs, 39 Iowa, 447; Pye v. Peterson, 45 Tex. 312; Kneedler v. Borough of Norristown, 100 Pa.St. 368; City of Champaign v. Harmon, 98 Ill. 491; and Mayor, etc., v. Thorne, 7 Paige, 261.

In the case of City of Keokuk v. Scroggs, it appears that the original charter conferred a general power upon the city to make such ordinances as should be necessary to secure the city and its inhabitants from injury by fire. This charter was amended, and the amendment contained a full and specific enumeration of the acts which the city might do for the purposes of guarding against calamities by fire. In the enumeration of powers in the amended charter nothing was said about the control of wood or lumber yards. The defendant was prosecuted for the violation of that portion of the city ordinance relating to the location of lumber yards within the fire limits. And the court said: "The power to pass an ordinance requiring the removal of a lumber yard from a specified portion of the city is not expressly conferred in the charter, nor can it be claimed that it is necessary to make the power conferred available." And further that the general provision contained in the original charter has become absorbed in the particular enumeration in the amendment. "Therefore whatever power is conferred upon the city respecting fires must be found in the amendment to the charter." There being neither a general nor special power in the charter authorizing the city to enact the ordinance as to lumber yards, the court held no such power existed.

The case of Pye v. Peterson, 45 Tex. 312, was a case involving the validity of a fire ordinance. The charter provided generally that the city might have power to "ordain and establish such acts, laws, regulations, and ordinances not inconsistent with the constitution or laws of this state as shall be needful for the government, interests, welfare, and good order of said body politic," also "to abate and remove nuisances and to punish the authors thereof by penalties, fine, and imprisonment, and to define and declare what shall be nuisances." And the court said that "without an express grant a city cannot establish fire limits, declare wooden buildings erected therein to be nuisances, and to provide for the removal of such buildings and the punishment of those erecting them." And in this case the court also said: "The form of the ordinance indicates that it was framed under the latter clause." And the point really decided was that the council had no power to declare wooden buildings to be nuisances.

In the case of Kneedler v. Borough of Norristown, 100 Pa. St. 368, the court says: "The charter of the borough of Norristown contains no authority to the council to enact ordinances prohibiting the erection of wooden buildings. Nor is there anything in the grant of general powers conferred upon the borough from which such an authority can be necessarily inferred or to which it is indispensable." But the court was apparently influenced in its decision by the fact that the...