Downey v. Sioux City
| Decision Date | 22 October 1929 |
| Docket Number | No. 39865.,39865. |
| Parties | DOWNEY ET AL. v. SIOUX CITY ET AL. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Woodbury County; A. O. Wakefield, Judge.
An action to enjoin the defendant and its officers from interfering with the construction of a building in the city of Sioux City. From a decree for the plaintiff, the defendants appeal. Affirmed.Henry C. Shull, Thomas J. Griffin, S. F. Wadden, and Jepson, Struble & Sifford, all of Sioux City, for appellants.
Burgess & Gill, of Sioux City, for appellees.
At all times in controversy herein, plaintiff W. J. Downey was the owner of lot 9 and the south half of lot 10 in block 8 in Pierce's addition to the city of Sioux City. These lots are located at the northeast corner of the intersection of Twenty-Eighth and Jackson streets, which intersect at right angles. In March, 1928, plaintiff proposed to construct and erect on said lots a ten-apartment multiple dwelling, ordinarily known as an “apartment house.” Plans and specifications were duly prepared and submitted to the proper city officials and approved. Plaintiff then made application to the building inspector for a permit to erect said building, which permit was refused. Notwithstanding this, plaintiff commenced excavating for said building, and at the same time brought this action, joining his contractor therein as plaintiff, praying that the city be restrained from hindering or interfering with the construction of said residence apartment building on said lots, etc., and that a mandatory injunction issue directing that the city and the building inspector forthwith issue to plaintiff a building permit for the erection of said building on said lots.
In the original case, four property owners filed a petition of intervention praying that plaintiff's petition be dismissed and asking a writ of injunction against the plaintiff restraining him from erecting on said property the proposed building without securing the necessary permit therefor.
Defendants answered setting up certain statutes and ordinances of the city of Sioux City, pleading that the plaintiff had not complied therewith and praying that plaintiff's petition be dismissed. Plaintiff pleaded that the ordinances in controversy are null and void, whereupon the case went to trial resulting in a decree in favor of the plaintiff and dismissing the petition of interveners.
The city of Sioux City had an ordinance, designated as No. L-1214, known as the “Building Code of Sioux City,” which ordinance among other things divided the city into three districts, and provided for the regulation of buildings within these districts and prohibited certain structures unless written consent was first obtained from the owners of 60 per cent. of the residence property within certain limits set out in the ordinance. On April 21, 1928, the city passed an amendment to the aforesaid ordinance, known in the record as “No. O-119,” which amendment added class A and class B multiple dwellings to the structures prohibited within district No. 3; plaintiff's property being within the bounds of the aforesaid district. Plaintiff's application for a permit was refused by the building inspector on the ground that the written consent of the aforesaid 60 per cent. of the residence property owners within the limits provided by the ordinance was not filed.
The turning question in the case is whether or not the ordinance, No. L-1214, Ordinance No. O-119, is valid. Stated briefly, had the city the power to prohibit the building of an apartment house within the aforesaid district No. 3; or (2) had it the power to provide that no such building should be erected unless written consent had been filed as in the ordinance provided?
[1] It is fundamental that the city had no inherent power to legislate on the question involved, and that it had only such power to legislate on this question as is expressly given by the Legislature of the state, or necessarily implied for the purpose of carrying out the power granted by the state. In the case of Clark v. City of Des Moines, 19 Iowa, 199, loc. cit. 212, 87 Am. Dec. 423, this court said: “It is a familiar and elementary principle that municipal corporations have and can exercise such powers, and such only, as are expressly granted, and such incidental ones as are necessary to make those powers available and essential to effectuate the purposes of the corporation; and these powers are strictly construed.”
This statement almost verbatim is reiterated in the case of City of Keokuk v. Scroggs, 39 Iowa, 447, at page 450. See, also, City of Des Moines v. Gilchrist et al., 67 Iowa, 210, 25 N. W. 136, 56 Am. Rep. 341;Heins v. Lincoln, 102 Iowa, 69, at page 76, 71 N. W. 189;Aldrich v. Paine et al., 106 Iowa, 461, at page 467, 76 N. W. 812;Burroughs v. City of Cherokee, 134 Iowa, 429, 431, 109 N. W. 876;Bear v. City of Cedar Rapids, 147 Iowa, 341, 345, 126 N. W. 324, 27 L. R. A. (N. S.) 1150;Town of Akron v. McElligott, 166 Iowa, 297, at page 300, 147 N. W. 773, Ann. Cas. 1916E, 692. In the case of Ries v. Hemmer, 127 Iowa, 408, 103 N. W. 346, 347, it is said: “If the power is not expressly conferred, or necessarily implied from the powers that are conferred, it does not exist, and any fair doubt as to the existence of the power is to be resolved against its existence.” See also 19 R. C. L. 800, § 108; 43 C. J. 205, § 204.
[2][3] Or, to state it in another way, in the absence of an expressed or necessarily implied power, municipal corporations cannot lawfully exercise the police power. 43 C. J. 206, and cases cited in note 55. It is also fundamental that such power must be exercised so as not to infringe arbitrarily or unnecessarilyupon private rights. City of Centerville v. Miller, 57 Iowa, 56, 10 N. W. 293;Bush v. City of Dubuque, 69 Iowa, 233, 28 N. W. 542;City of Hawarden v. Betz et al., 182 Iowa, 808, 164 N. W. 775; 43 C. J. page 230, § 230. But a regulation is not invalidated by the mere fact that private rights are restricted, or that loss will result to individuals from its enforcement. City of Shenandoah v. Repogle et al., 198 Iowa, 423, 199 N. W. 418;Rehmann v. City of Des Moines, 200 Iowa, 286, 204 N. W. 267, 40 A. L. R. 922.
[4] We turn therefore to the statutes of the state to see just what power the city possesses on this subject.
Section 5756, Code 1927, provides: “Cities and towns, including cities under the commission form of government, shall have the power to adopt by ordinance a building code, providing for the districting of such cities into one or more districts, establishing reasonable rules and regulations for the erection, reconstruction, and inspection of buildings of all kinds within their limits.”
Is there any power conferred upon the city by this section of the Code authorizing it to enact an ordinance containing the conditional prohibition provided by Ordinance L-1214?
It is fundamental that the right conferred of the power to regulate does not authorize the passage of an ordinance prohibiting. City of Shenandoah v. Repogle, supra; Rehmann v. City of Des Moines, supra; 43 C. J. 252; also note to 40 A. L. R. 922.
Under any reasonable construction, could the aforesaid statute authorize the city to pass an ordinance prohibiting the erection of apartment houses in district No. 3? Of course, an ordinance passed within the limits of the power given must be a valid ordinance. The statute provides for the making of reasonable rules and regulations by the city “for the erection * * * of buildings of all kinds within their limits.” This statute contemplates that buildings shall be erected, but the city is given the power to make rules and regulations as to the manner and method of construction and the material used in the construction, location on lots, and similar matters. These matters were undoubtedly fully within the power above conferred, but the right to exercise the power to regulate these matters cannot be construed into a power to prohibit erection of buildings. It is our conclusion that there is nothing in this statute above quoted authorizing the city to pass an ordinance prohibiting the erection of apartment houses in the aforesaid district.
[5] It is insisted, however, that by reason of chapters 324 and 325, Code 1927 (sections 6452-6476), such power is conferred upon the city.
Chapter 325 (sections 6474-6476) provides for a proceedings by which restricted residential districts may be created upon the filing of a petition by 60 per cent. of the owners of the residences in the district sought to be affected. When this proceedings is carried to completion, the city is then authorized to designate and establish such restricted residential district, and to establish reasonable rules and regulations for the erection, etc., of buildings of all kinds within said district, as well as the use and occupancy of said buildings, and to prohibit the erection of buildings or other structures (except certain ones in which we are not interested) without first securing a permit therefor.
It will be noted that the distinction between these sections of the statute and the one first quoted is that here the city is given the power, by ordinance, to regulate the use and occupancy of such buildings and to prohibit buildings without a permit. No such proceedings were had in the instant case, and therefore the powers (whatever they may be) of the city under section 6475 are not operative in the...
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