Lane-Moore Lumber Co. v. City of Storm Lake
| Decision Date | 08 April 1911 |
| Citation | 130 N.W. 924,151 Iowa 130 |
| Parties | THE LANE-MOORE LUMBER CO., Appellant, v. THE CITY OF STORM LAKE, Appellee |
| Court | Iowa Supreme Court |
Appeal from Buena Vista District Court.--HON. D. F. COYLE, Judge.
Affirmed.
Healy Edson & Moulton, for appellant.
James Deland, for appellee.
THE opinion sufficiently states the case. Affirmed.
The plaintiff alleges that it is a lumber dealer, and as such for a considerable period has maintained a yard or place for carrying on its business on the west half of block 14 in the city of Storm Lake, Iowa and at the commencement of this suit was erecting a shed upon said premises for the shelter and storage of lumber; that the city has interfered with the completion of said structure, and compelled plaintiff's employees to cease their labor thereon, and is threatening to compel the entire removal of said building. This interference, the plaintiff avers, is unlawful, unreasonable, and without cause or authority, and it demands that the city, its officers, and servants be enjoined therefrom. For answer the defendant city admits the plaintiff's ownership of the premises, and the maintenance thereon of a lumber yard. It says, however, that the building which plaintiff is proposing to erect is of wood except a thin covering of corrugated iron; that its site is within the fire limits of the city, and that the erection of such a building within said limits is forbidden by an ordinance enacted August 22, 1885, as well as by ordinance No. 20 of February 6, 1900, and by amendments thereto enacted April 8, 1905, and February 3, 1909. It is further alleged that whatever said city has done in the premises has been in the exercise of its proper municipal authority and the enforcement of its laws and ordinances. In reply plaintiff denies the validity of the ordinances relied upon by the defendant. On application of the plaintiff at the outset of this controversy, a temporary injunction was issued, and, as we infer, the building has been completed to some extent during the pendency of the action. Trial being had to the court upon the issues thus joined, a decree was entered denying the relief asked and dissolving the temporary injunction. Plaintiff appeals.
As erected, the shed in question is of wooden frame covered on the sides with sheets of galvanized iron nailed directly to the studding. The posts stand on cement piers; the roof is covered with flooring over which is laid a paper composition. The shed is L-shaped, standing on the corner of the block, with total lineal dimension of two hundred and forty feet. The other half of the block is occupied by business buildings facing in the opposite direction. A twenty foot alley extends through the block north and south. The authority of the city to prescribe fire limits and by proper legislation to enact reasonable restrictions and regulations governing the erection and maintenance of buildings therein is not denied by counsel. Indeed, it is obviously one of the most appropriate subjects for the exercise of the police powers of municipal government. If, then, that power had been properly exercised by the enactment of ordinances prescribing reasonable regulations to govern the erection of buildings in that part of the city, and the plaintiff was about to build a lumber shed in disregard thereof, the city did not exceed its authority in arresting the progress of the work, and the decree entered below must be affirmed.
I. First in order of time is the ordinance known as No. 41, passed August 22, 1885. It prescribes fire limits which include block fourteen. on which the shed in controversy stands, and prohibits the erection therein of any building "unless its outer walls and roof are composed of iron, stone, or brick and mortar, or other noncombustible material." It further provides that before erecting any building within said limits, the owner must make written application to the mayor for a permit describing the proposed structure, and that violation of such regulation shall be deemed a misdemeanor. The regularity of the passage and publication of this ordinance is not seriously questioned. It appears, however, that in the year 1900 there was an attempt to codify or to revise or compile the ordinances of the city, and as a part of that scheme Ordinance No. 20 of February 6, 1900, was enacted, or attempted to be enacted, covering much of the same subject matter as the former Ordinance No. 41. But it is conceded that fatal defects are shown in the passage of Ordinance No. 20, and it never became legally enforceable, though until this action was brought its validity appears never to have been questioned. It would further seem that from the date of this attempted revision the earlier ordinances, though never formally repealed, were lost sight of or regarded as obsolete until in the trial below No. 41, above mentioned, was rediscovered in an earlier record book which had fallen into disuse.
The book is more or less dilapidated, and some of its original pages are missing, and it is argued for appellant that its identity as a part of the official records of the city has not been established. But the objection is not well taken. It was produced by the proper custodian, the city clerk, who identifies it as the "original ordinance book of Storm Lake" and "part of the records of the city clerk's office," and this is clearly sufficient.
The more fact that the city acting on the supposition that the same subject matter was covered or provided for by the later void ordinance had overlooked the existence of Ordinance No. 41 would not in our judgment affect its validity, or deprive it of enforceable character if any it originally had. It may be conceded that if Ordinance No. 20 which attempted to cover the same subject matter had been properly enacted, it would have worked a repeal of Ordinance No. 41 by implication, but it would border upon the absurd to say that a proposed ordinance which never acquired life or validity because never legally enacted may yet operate as an implied repeal of another ordinance duly passed and entered upon the city records. Of the further question whether the old ordinance is void as being unreasonable or in excess of the power conferred by the statute we shall have occasion to speak in another connection.
II. As we have already noted, the omission of certain statutory formalities in its passage rendered Ordinance No. 20 of no validity, and, if the defense in this case rested alone upon that particular piece of municipal legislation, the right of plaintiff to relief might have to be admitted. But it is pleaded and proved that another ordinance upon this subject and spoken of as the first amendment to Ordinance No. 20, and already referred to in this opinion, was enacted under date of April 8, 1905. Omitting merely formal parts, this ordinance reads as follows:
Be it ordained by the council of the city of Storm Lake, Iowa:
That section one (1) of Ordinance Number Twenty (20) of the city of Storm Lake, Iowa passed February 6th, 1900, and published in pamphlet form May 7th, 1900, and recorded on pages 41 and 42 of the ordinance record of the city of Storm Lake, Iowa and which reads as follows:
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