Heerdt v. CITY OF PORTLAND, OR.

• Decision Date: 05 October 1925
• Docket Number: No. 8750.,8750.
• Citation: 8 F.2d 871
• Parties: HEERDT v. CITY OF PORTLAND, OR., et al.
• Court: U.S. District Court — District of Oregon

8 F.2d 871 (1925)

HEERDT v. CITY OF PORTLAND, OR., et al.

No. 8750.

District Court, D. Oregon.

October 5, 1925.

Simon, Gearin, Humphreys & Freed, of Portland, Or., for plaintiff.

Franks Grant, City Atty., and R. A. Imlay, both of Portland, Or., for defendants.

WOLVERTON, District Judge.

This case was presented upon motion of the defendants to dismiss. It arises out of the contention that a certain ordinance is void as in contravention of plaintiff's constitutional rights. On June 6, 1917, an ordinance, entitled "An ordinance on public safety and general welfare," was adopted by the city of Portland. Its article III related to "Fire Prevention." On April 11, 1923, article III was amended to read:

"It shall be unlawful for any person hereafter to maintain or to establish on any vacant lot in any residential district in the city any fuel yard, lumber yard or second-hand lumber yard, or to store or keep for any purpose any lumber or second-hand lumber on any vacant lot in any such residential district (except during actual building operations for which such lumber is being used) without a permit from the council. The application for such permit shall be accompanied by a plan giving location of the lot in question, together with all buildings within a radius of 200 feet from such lot, and giving also the names and addresses of owners of such buildings."

Another section defines the term "residential district."

The plaintiff made application to the city council for a permit to maintain his wood yard, in form and manner as specified in the ordinance, but the application was made under protest, and it challenged the authority of the city to require plaintiff to secure a permit under the ordinance, and as well the validity of the ordinance itself. The attack upon the validity of the ordinance and the manner of its administration is presented in two aspects, namely:

(1) Wood yards not being injurious to the health, morals, or safety of the people, it is beyond the police power of the city of Portland to prohibit their maintenance in residential districts.

(2) The ordinance furnishes no rule of action or standard to which the plaintiff and other persons maintaining wood yards in residential districts can conform and thereby be entitled to permit from the city council.

It is not essential at this time to discuss the extent to which action may be regulated under what are known as police powers. Such powers are very broad and comprehensive, and the only question here is whether the city council, in enacting the ordinance in question, has exceeded its province in its exercise of such powers.

The exercise of the power in this instance was for fire prevention; so it was enacted that it shall be unlawful for any person to maintain any fuel yard on any vacant lot in any residential district. The law-making body exercised its discretion, as in its wisdom it was authorized to do, in adopting the ordinance. For...