Huff v. City of Des Moines

• Decision Date: 16 December 1952
• Docket Number: No. 48065,48065
• Citation: 56 N.W.2d 54,244 Iowa 89
• Parties: HUFF et al. v. CITY OF DES MOINES et al.
• Court: Iowa Supreme Court

Page 54

56 N.W.2d 54

244 Iowa 89

HUFF et al. v. CITY OF DES MOINES et al.

No. 48065.

Supreme Court of Iowa.

Dec. 16, 1952.

Tolbert C. More and Bump & Bump, Des Moines, for appellants.

Frank Bianco, Doran L. Williams, John A. Blanchard and Harris M. Coggeshall, Des Moines, for intervenor-defendant-appellee.

Edwin J. Frisk, Des Moines, for intervenors-appellees.

HAYS, Justice.

Plaintiffs were enjoined from operating and maintaining a trailer park at 710 East University Avenue in the City of Des Moines, Iowa, as being in violation of certain ordinances of said City. They have appealed; and, on this appeal, they raise three propositions--two legal, one factual.

First, it is asserted that the City has no authority to legislate upon the erection or operation of the trailer park. Second, conceding the authority, plaintiffs obtained vested rights under Ordinance No. 4724, prior to its amendment in December, 1948, by Ordinance No. 5077. Third, Section 39.7 of said Ordinance No. 5077 is void. A finding for appellants upon any of the above propositions, in the order above set forth, renders all subsequent ones moot so far as this appeal is concerned.

Briefly, as to the status and history of the Ordinances involved; long prior to the time here in question, the City of Des Moines had enacted a building code, under which a permit was required for the erection, reconstruction, and inspection of all kinds of buildings. Authority for such is found in new Section 368.19, Code of 1950, I.C.A. Also prior to the time in question, the City had enacted a comprehensive zoning ordinance, as authorized by now Chapter 414, Code of 1950, I.C.A. In 1941, the City enacted Ordinance No. 4647; which, upon the adoption of the Municipal Code in 1942, became Chapter 39 thereof. This ordinance regulated trailer parks and trailers within the corporate limits. It placed the enforcement thereof in the Health Department. Section 6 thereof stated: 'No person shall operate, maintain, or offer for public use * * * a trailer park without first having obtained a permit therefor from the Health Department. * * *' Section 7 thereof required that a written application, in prescribed form, shall be made at least 30 days before the park is placed in operation. Section 11 thereof prescribed the required equipment and manner of maintenance. On December 6, 1948, the City, by Ordinance No. 5077, repealed Chapter 39, supra; and enacted a new Chapter 39 entitled 'Trailers and Trailer Parks'. This new Chapter covers the same general ground as the old one but in a more comprehensive manner. It also contained a new provision, Section 39.7, which is as follows: 'Location. Trailer parks may be located in commercial districts or any district in which multiple dwellings are permitted. Each boundary of the park when located in a multiple dwelling district must be at least two hundred (200) feet from any permanent residential building located outside that park unless separated therefrom by a natural or artificial barrier; and unless sixty (60) per cent of the property owners, according to the area within said two hundred (200) feet, consent in writing to the establishment of the park.' (Italics ours.)

Briefly, as to appellants' situation. They own a tract of land known locally as 710 East University Avenue. At has a frontage of 86 feet on the Avenue, extending back (north) 272 1/4 feet, widening to 126 feet on the north 68.8 feet thereof. The south 122 feet is zoned as commercial. The north 150 1/4 feet is zoned for multiple dwellings. In August, 1948, appellants consulted with various City officials relative to the erection of a trailer park upon the above stated site. In October, 1948, they were issued a building permit authorizing the erection of a utility house, same to be located in the multiple dwelling area. The building was erected at a cost of $4,600 and a certificate of occupancy was issued in January, 1949. In September, 1949, additional plumbing was installed at a cost of $1,799.44; and in November, 1950, more plumbing was installed at a cost of $700. A picket fence was built about the tract in 1951. The park has a capacity of seventeen trailers and is in operation. No written application for a permit to operate a trailer park was ever filed until in February, 1949; and it did not contain the consent of 60% of the adjacent property owners within the two hundred foot area. This application together with two subsequent ones were refused. We think the record fairly shows that all of the above installations comply with the provisions of the building code.

As originally commenced this action was in mandamus to compel the issuance of a permit. The City of Des Moines and several owners of property adjacent to the tract in question intervened and asked that plaintiffs be enjoined from operating the park. On this issue the cause was tried with the result above noted.

I. Appellants assert that the City of Des Moines is without authority to enact any ordinance regulating trailer parks. If this be correct, then the trial court must be reversed.

It is the recognized rule in this state, and generally elsewhere except where home rule prevails, that a municipal corporation, being a creature of the legislature, can exercise only those powers specifically granted or such as are necessarily or fairly implied in or incident to those expressly granted and such powers are to be strictly construed. Downey v. Sioux City, 208 Iowa 1273, 227 N.W. 125; City of Des Moines v. District Court, 241 Iowa 256, 41 N.W.2d 36.

Section 366.1, Code of 1950, I.C.A., authorizes enactment of such ordinances as may seem necessary and proper to provide for the safety, preserve the health, promote the prosperity, improve the morals, order, comfort, and convenience of such corporations and the inhabitants thereof. Section 368.1, Code of 1950, I.C.A., grants general powers for the protection of their property and inhabitants, and the preservation of peace and good order therein. Chapter 414, Code of 1950, I.C.A., authorizes city zoning and Section 414.1 thereof provides that for the purpose of promoting the health, safety, morals or general welfare of the community, cities and towns may regulate and restrict the location and use of buildings, structures, and land for trade, industry, residence, and other purposes. Relative to Section 366.1, supra, we said in Cecil v. Toenjes, 210 Iowa 407, 410, 228 N.W. 874, 875: 'Contained within that legislation are elements generally known as police power. Such power had its source in the state, and by the foregoing statute was delegated to the municipality.' Relative to Section 414.1, supra, we said in Boardman v. Davis, 231 Iowa 1227, 1229, 3 N.W.2d 608, 610: Zoning is an 'exercise of the police power, in the interest of public peace, order, morals, health, safety, comfort, convenience and the general welfare.' Police power is difficult to definitely define. In City of Des Moines v. Manhattan Oil Co., 193 Iowa 1096, 1103, 184 N.W. 823, 826, 188 N.W. 921, 23 A.L.R. 1322, we said: 'We shall not undertake any comprehensive definition of the police power of the state. No such definition has yet been accomplished by any court, nor is it possible or desirable that it should be accomplished. With the changing conditions necessarily attendant upon the growth and density of population and the ceaseless changes taking place in method and manner of carrying on the multiplying lines of human industry, the greater becomes the demand upon that reserve element of sovereignty which we call the police power for such reasonable supervision and regulation as the state may impose, to insure observance of the individual citizen of the duty to use his property and exercise his rights and privileges with due regard to the personal and property rights and privileges of others.' Webster defines police power as 'the power of the state to protect the public against the abuse of individual liberty, that is, to restrain the individual in the exercise of his rights when such exercise becomes a danger to the community.'

Even conceding that the instant trailer park is erected and maintained in a manner noninjurious to the health, morals or general welfare of the public, as asserted by appellants, we think that judicial notice may be taken of the rapid growth of trailer parks through the country; and that, generally speaking, regulation and restriction thereof constitute a legitimate exercise of police power. We think such power is expressly granted to municipalities under the statutes above cited. As stated in City of Des Moines v. Fowler, 218 Iowa 504, 510, 255 N.W. 880, 883: 'If an ordinance be passed in virtue of express legislative power and substantially follows the powers granted, a court will sustain it regardless of its opinion as to its reasonableness.' See also Anno. 22 A.L.R.2d 781 and cases cited therein. There is no merit to appellants' contention.

II. Appellants further assert that under the old Ordinance No....