Gray v. City of Omaha

• Decision Date: 08 January 1908
• Docket Number: 15,010
• Parties: JOSHUA M. GRAY, APPELLEE, v. CITY OF OMAHA ET AL., APPELLANTS
• Court: Nebraska Supreme Court

114 N.W. 600

80 Neb. 526

JOSHUA M. GRAY, APPELLEE, v. CITY OF OMAHA ET AL., APPELLANTS

No. 15,010

Supreme Court of Nebraska

January 8, 1908

APPEAL from the district court for Douglas county: ALEXANDER C TROUP, JUDGE. Affirmed.

AFFIRMED.

H. E Burnam, I. J. Dunn and John A. Rine, for appellants.

Nelson C. Pratt, contra.

OPINION

CALKINS, C. J.

An ordinance of the city of Omaha made it unlawful for any person to construct artificial stone, asphalt or other composite walks without a license therefor. Section 2 of this ordinance, which contained its material provisions, was as follows: "Any person, firm or corporation desiring to engage in the construction of artificial stone, asphalt or other composite sidewalks in the city, shall be required to apply for a license to the mayor and city council; such license to expire on December 31st of each year. The condition of the issuance of such license to be the payment of ten dollars to the city treasurer and the filing with the city clerk of a surety bond to the city of Omaha, in the sum of $ 2,000, to be approved by the mayor and city council, guaranteeing the construction of all such walks in conformity with approved specifications of the city, and their maintenance for five years in continuous good condition; said bond shall also indemnify the city against all damages arising by virtue of neglect to comply with the provisions of ordinances and to take and provide for necessary precautions against damages by virtue of such construction. All such walks to be constructed under permits and in full accordance with provisions of ordinances." The plaintiff, who had not complied with the provisions of this ordinance, was employed by the owner of a lot in said city to lay a cement sidewalk in front of such lot; and, while engaged in the construction of the same according to the specifications of the city for the laying of walks of that character, he was arrested under a complaint charging him with engaging in the business of laying cement sidewalks without a license, in violation of the ordinance in question. The plaintiff brought this action to restrain the city, its officers and agents, from attempting to enforce said ordinance against him, on the ground that the ordinance was unreasonable and void, and unauthorized by the charter of the city. The defendants demurred to the petition, which demurrer was overruled, and, the defendants not desiring to answer, a judgment for the plaintiff was rendered, from which the defendants bring this appeal.

The power to pass a city ordinance must be vested in the governing body by the legislature in express terms, or be necessarily or fairly implied in and incident to the powers expressly granted, and must be essential to the declared purpose of the corporation; not simply convenient, but indispensable. 1 Dillon, Municipal Corporations (4th ed.), sec. 89; Anderson v. City of Wellington, 40 Kan. 173, 19 P. 719. Powers encroaching upon the rights of the public or of individuals must be plainly and literally conferred by the charter. Breninger v. Belvidere, 44 N.J.L. 350. The power to license must be plainly conferred, or it will not be held to exist. 1 Dillon, Municipal Corporations (4th ed.), sec. 361; Dunham v. Trustees of Rochester, 5 Cow. (N.Y.) 462; Commonwealth v. Stodder, 2 Cush. (Mass.) 562; Mays v. City of Cincinnati, 1 Ohio St. 268; City of St. Paul v. Traeger, 25 Minn. 248.

It is conceded that no express power is given to license and regulate the vocation mentioned in the ordinance; but it is argued that the power is necessarily implied from the right of the city to designate the material and manner of construction of the walks to be laid in its streets. In considering this question, it should be borne in mind that the legislature in imposing upon the lot owner the burden of maintaining walks in front of his premises reserved to him the privilege of himself constructing the same. Section 121 of the charter of the city of Omaha (Comp. St. 1905, ch. 12a) provides: "Before any sidewalk shall be constructed or repaired by the city...