Lockwood v. Baird

• Decision Date: 01 August 1930
• Citation: 231 N.W. 851,59 N.D. 713
• Court: North Dakota Supreme Court

231 N.W. 851

59 N.D. 713

W. L. LOCKWOOD, Appellant, v. R. O. BAIRD, State FoodCommissioner, and D. E. Shipley, Inspector of Hotels, Respondents

Supreme Court of North Dakota

August 1, 1930

Appeal from the district court of Burleigh CountyJansonius, J.The plaintiff appeals from an order sustaining a demurrer to his complaint.

Affirmed.

John O. Hanchett, for appellant.

The law-making power is the sole judge of when, if at all, it will enact police laws, but what regulations are reasonable or come within the police power of the state is a judicial question.Toledo R. Co. v. Jacksonville,67 Ill. 3716 Am. Rep. 611;Miller v. Fitchburg, 180 Mass. 32, 61 N.E 277.

"The police power of the state . . . is the right of the state, or state functionary, to prescribe regulations for the good order, peace, health, protection, comfort, convenience and morals of the community."8 Cyc. 863.

In the exercise of the police power a very wide discretion as to what is needful or proper is vested in the legislative body.Ex parte Tuttle, 91 Cal. 589, 27 P. 933.

As the right of the citizen to engage in business or to follow a profession is protected by the constitution, it is always a judicial question whether any particular regulation of such right is a valid exercise of legislative power.TiedemanLim. § 85, p. 194;Pennsylvania R. Co. v. Jersey City,47 N.J.L. 286;Com. v. Robertson,5 Cush. 438;Austin v. Murray,16 Pick. 121;Ex parte Whitwell, 98 Cal. 73, 19 L.R.A. 727, 35 Am. St. Rep. 162, 32 P. 870.

"To say that a business is clothed with a public interest is not to import that the public may take over its entire management and run it at the expense of the owner."Wolff Packing Co. v. Court of Industrial Relations,262 U.S. 538, 67 L. ed. 1110;Dorchy v. Kansas,264 U.S. 286, 68 L. ed. 686;Chastelton Corp. v. Sinclair, 264 U.S. 542, 68 L. ed. 841.

The remedy by injunction will lie and is the proper remedy against officers threatening to enforce a law against plaintiff's business.Bartells Northern Oil Co. v. Jackman,29 N.D. 236, 50 N.W. 576.

James Morris, Attorney General and Charles Simon, Assistant Attorney General, for respondents.

If the subjects in the law are germane or reasonably connected with the subject expressed in the title, the constitutional requirement is sufficiently met.State ex rel. Erickson v. Burr,16 N.D. 587, 113 N.W. 705.

"Supplying guests with meals is not now one of the essential requisites of a hotel in order to charge the proprietor thereof with the liability of a keeper of a common inn."Nelson v. Johnson,104 Minn. 440, 116 N.W. 828.

"An hotel is a place where lodging is furnished to transient guests as well as one where both food and lodging are furnished."Metzler v. Terminal Hotel Co.135 Mo.App. 410, 115 S.W. 1037.

The hotel keeper undertakes that the guests shall be treated with due consideration for their safety and comfort.14 R.C.L. 506.

The hotel keeper contracts to furnish accommodations compatible with the standing of his hostelry, the prices paid, and the class of people invited to become its guests, including sanitary conditions of property.Williams v. Sweet,119 Me. 227, 10 A.L.R. 121.

It is not the province of the courts, except in clear cases, to interfere with the exercise of the power reposed by law in municipal corporations to pass ordinances relating to objects within the proper domain of the police power.6 R.C.L. 245.

It is generally presumed that conditions exist which make ordinances necessary or proper for the welfare of the community.State v. Atchison,92 Kan. 431, 140 P. 873, Ann. Cas. 1916B, 504.

An ordinance to be void for unreasonableness must be plainly and clearly unreasonable.Seattle v. Hurst,50 Wash. 424, 18 L.R.A.(N.S.) 169, 97 P. 454.

Where one devotes his property to a use in which the public has an interest, he, in effect, grants to the public an interest in that use and must submit to be controlled by the public for the common good to the extent of the use he has thus created.Munn v. Illinois,94 U.S. 113, 24 L. ed. 77.

Christianson, J. Burke, Ch. J., and Birdzell, Nuessle and Burr, JJ., concur.

OPINION

CHRISTIANSON

The sole question presented on this appeal is whether the complaint states facts sufficient to constitute a cause of action.In his brief plaintiff says:

"This action was brought by W. L. Lockwood, proprietor of the Lockwood Automobile Tourist Camp at Valley City, to test the validity or applicability to his tourist camp of certain provisions of Chapter 144 of the Laws of 1929 entitled: 'An Act providing for the inspection of hotels, lodging houses, boarding houses, and restaurants; prescribing sanitary requirements therefor; providing for licensing, payment and disposition of license fees; providing for the revocation of licenses; defining the duties of the state food commission and chemist with regard to the act; providing for penalties for violation thereof and repealing existing laws relating thereto.'"

Baird, the state food commissioner and Shipley, an inspector of hotels appointed by him, are named as defendants in the action.These defendants demurred to the complaint on the ground that it "does not state facts sufficient to constitute a cause of action."The demurrer was sustained.Subsequently judgment of dismissal was entered and the plaintiff has appealed.

In his complaint the plaintiff alleges that he owns and operates a tourist camp in Valley City in this state, consisting of four small cabins and one larger cabin; that such cabins are furnished with bed-frames, bed springs, straw mattresses, etc.That the plaintiff charges tourists for the accommodations furnished the sum of $ 1,25 per day for two or more persons for the use of the smaller cabins and $ 2.00 or more per day for the use of the larger cabin, -- which charges include the use of the community kitchen of the camp for the preparation and serving of meals, etc.That in September, 1929, the defendant Shipley, hotel inspector, appeared at said camp and claimed that the same was a hotel within the meaning of chapter 144,Laws 1929, and claimed the right to inspect, and did inspect, the said camp and claimed, and received, from the plaintiff an inspection fee for inspecting each of the said cabins.That at said time said Shipley gave notice to the plaintiff that inasmuch as he(plaintiff) was charging more than fifty cents per night for each person for lodging in the camp that the mattresses furnished by him failed to comply with the provisions of § 6 of said chapter 144, and that he would be required to replace the same with mattresses complying with the requirements of said statute.That thereafter the plaintiff received through the mail a notice from Baird, state food commissioner, calling his attention to the provisions of § 6, chapter 144,Laws 1929 and stating that the beds in the cabins operated by the plaintiff were not in compliance therewith and requiring plaintiff to discontinue the use of straw mattresses and to furnish upon the beds of said cabins mattresses complying with the provisions of said statute; and "that if he failed to do so he would not be allowed to continue the operation of said tourist camp."It is further alleged that to furnish the mattresses so required would involve the expenditure of a large sum of money without any prospect of sufficient return and would result in depriving the plaintiff of his property without due process of the law.It is further alleged that chapter 144,Laws 1929 has no application to an automobile tourist camp such as that operated by the plaintiff and that in any event § 6 of said act, relating to mattresses to be furnished in rooms where a price exceeding fifty cents per person is charged per night, is not a proper exercise of the police power of the state but is an arbitrary and unlawful interference with plaintiff's property rights and tends to deprive him of his property and business without compensation and without due process of law, in violation of the guarantees of the 14th Amendment to the Constitution of the United States and § 13 of the constitution of North Dakota; that the plaintiff, through his attorney, has notified the defendants that such requirements are void and unenforceable as against him.It is further alleged: "that the said defendants nevertheless and notwithstanding the plaintiff's said claims still continue to threaten to enforce the provisions of Section 6 of said Act as to the matter of the kind and weight of the mattresses to be used in the operation of plaintiff's said tourist camp and still threaten that if plaintiff fails to comply with their said requirements as to the matter of mattresses, to prevent the plaintiff from continuing the operation of his said camp and will do so unless they are enjoined and restrained from so doing by a court of competent jurisdiction and will thereby do plaintiff irreparable harm, injury and damage to his said business and property."Plaintiff demands the judgment of this court that "the said defendants and each of them and each of their deputies, servants, agents and employees, be forever restrained and enjoined from attempting farther to enforce the said provision of § 6, of chapter 144, of the Laws of 1929 with reference to the material and weight of the mattresses used in the plaintiff's said tourist cabins or to interfere in any way with plaintiff's use of the straw mattresses now in use in said tourist cabins as herein described, and for such other and farther relief as to the court may seem just and equitable."

The hotel inspection act (Laws 1929, chap. 144) provides for the inspection of hotels, lodging houses, restaurants and boarding houses by the state food commissioner and by inspectors appointed by...