Marquis v. City of Waterloo

• Decision Date: 21 January 1930
• Docket Number: 40161
• Citation: 228 N.W. 870,210 Iowa 439
• Parties: J. L. MARQUIS, Appellant, v. CITY OF WATERLOO et al., Appellees
• Court: Iowa Supreme Court

228 N.W. 870

210 Iowa 439

J. L. MARQUIS, Appellant, v. CITY OF WATERLOO et al., Appellees

No. 40161

Supreme Court of Iowa, Des Moines

January 21, 1930

REHEARING DENIED MAY 16, 1930.

Appeal from Black Hawk District Court.--H. B. BOIES, Judge.

Action in mandamus, to compel the issuance of a permit to install gasoline storage tanks, to be used in connection with the operation of a gasoline filling station which the plaintiff desires to erect in a restricted residential district in the city of Waterloo. Upon trial, the court dismissed the petition of plaintiff, and rendered judgment against him for the costs. From this action by the trial court, plaintiff appeals.

Affirmed.

Pickett Swisher & Farwell, for appellant.

Carleton Sias, City Solicitor, for appellees.

WAGNER J. MORLING, C. J., and EVANS, STEVENS, FAVILLE, ALBERT, KINDIG, and GRIMM, JJ., concur.

OPINION

WAGNER, J.

The city of Waterloo has adopted an ordinance establishing restricted residence districts within the city, and providing a penalty for the violation thereof. Section 1 of said ordinance provides:

"That the hereinafter bounded property in the first ward in the city of Waterloo, Iowa, be and the same is hereby designated and established as a restricted residence district." (Here follows description of real estate.)

Sections 2, 3, and 4 of said ordinance are identical with Section 1, except that they describe real estate in the second, third, and fourth wards of the city. The remaining provisions of the ordinance are as follows:

"Sec. 5. That no building or other structures, except residences, schoolhouses, churches, and other similar structures shall hereafter be erected, reconstructed, altered, repaired or occupied within said restricted residence districts without first securing from the city council a permit therefor.

"Sec. 6. Any building or structure erected, altered, repaired or used in violation of any of the provisions of this ordinance is hereby declared to be a nuisance and may be abated as such in any action brought by the city of Waterloo, Iowa, in any court of competent jurisdiction.

"Sec. 7. Any person, firm or corporation violating any of the provisions of this ordinance shall be guilty of a misdemeanor, and, upon conviction thereof, shall be punished accordingly."

The statutory authority for the enactment of the aforesaid ordinance is found in Sections 6474, 6475, and 6476 of the Code, 1927, the provisions of which are as follows:

"Sec. 6474. Cities of the first and second class, including cities under commission form of government, may, and upon petition of sixty per cent of the owners of the real estate in the district sought to be affected residing in such city shall, designate and establish, by appropriate proceedings, restricted residence districts within its limits."

"Sec. 6475. In the ordinance designating and establishing such restricted residence district, every such city is hereby empowered to provide and establish reasonable rules and regulations for the erection, reconstruction, altering, and repairing of buildings of all kinds, within said district, as well as the use and occupancy of such buildings; and to provide that no building or other structure, except residences, schoolhouses, churches, and other similar structures, shall thereafter be erected, altered, or repaired, or occupied without first securing from the city council of such city a permit therefor, such permit to be issued under such reasonable rules and regulations as may in said ordinance be provided."

"Sec. 6476. Any building or structure erected, altered, repaired, or used in violation of any ordinance passed under the authority of the two preceding sections, shall be deemed a nuisance, and every such city is hereby empowered to provide by ordinance for the abatement of such nuisance, either by fine or imprisonment, or by action in the district or municipal court of the county in which such city is located, or by both; such action to be prosecuted in the name of the city."

The plaintiff has an interest in Lots 1, 2, and 5, in Block 1, Home Park Addition to the City of Waterloo, which is on the west side of Cedar River, which runs through the city. This property is in the residential district, in the first ward of the city. His application for a permit to install underground storage tanks, and to erect and maintain a gasoline filling station upon said property, was denied by action of the city council, for the reason that the location of the proposed filling station is within one of the residential districts. The plaintiff then commenced this action in mandamus, to compel the issuance of a permit. The defendant alleges the aforesaid ordinance as a defense to plaintiff's petition. The plaintiff, by reply, avers, in substance, that said ordinance is unconstitutional and void, for the reason that it violates the provisions of the Fourteenth Amendment to the Constitution of the United States and the provisions of Article 1 (Bill of Rights) of the Constitution of the state of Iowa, in that said ordinance, and particularly Section 5 thereof, unreasonably interferes with the rights of property, vests the city authorities with arbitrary power, and undertakes to give to the city authorities an unrestrained and arbitrary discretion; that said ordinance is invalid, for the reason that it fails to specify rules and regulations under which a permit will be issued, and is prohibitive, and not restrictive; that there is a gasoline filling station within the restricted residential district of the first ward, one block from the property in question; and that the acts of the city in permitting the continued operation of said station, and the denial by the defendants of the permit asked by the plaintiff, constitute an illegal discrimination against him; that the city has been guilty of other acts (hereinafter referred to) which work an unlawful discrimination as against him.

The first question confronting us is: Is the ordinance unconstitutional because it vests in the city council the power to determine whether a permit shall be granted? This question is fully answered in the negative by our pronouncement in City of Des Moines v. Manhattan Oil Co., 193 Iowa 1096, 184 N.W. 823. The appellant herein does not question the constitutionality of the aforesaid statutory law under which the ordinance was enacted, which is the same as it was at the time of our pronouncement in the Manhattan Oil Co. case, except that cities of the second class are now given the same powers in this respect as were given by the original enactment to cities of the first class, cities under commission form of government, and cities under special charter. In so far as the constitutionality of the ordinance is concerned, the ordinance which we are now considering is practically identical with the one considered in the Manhattan Oil Co. case. We deem it unnecessary to enter upon an extended discussion of the constitutional question, which in the cited case is so ably discussed. We therein said:

"This ordinance (with a single possible exception, hereinafter noted) appears to be in reasonably strict accord with the provisions of the act, and its validity must be conceded, unless we are compelled to hold that the act itself is void."

The writer therein points out the distinction between the ordinance there considered and the one involved in Eubank v. City of Richmond, 226 U.S. 137, 57 L.Ed. 156, 33 S.Ct. 76, and then declares:

"The ordinance upon which we are now called to pass is in marked contrast with the one in the Eubank case, supra. Nothing is left to the uncontrolled discretion of a committee or of private persons. It does not prohibit the erection within the restricted district of business buildings, shops, factories, gasoline stations, or any other class of buildings. It does provide, however, that the described area shall constitute a residence district, and that no buildings shall thereafter be erected therein, except residences, schoolhouses, churches, and similar structures, without first procuring from the city council a permit therefor. In other words, the provision so made is a regulation, and not a prohibition. That the regulation is, to this extent, a legitimate and reasonable exercise of the city's police power, is supported by a practically unbroken array of authority. "

It will be observed that the ordinance in the instant case likewise provides that no building or other structures except residences, schoolhouses, churches, and other similar structures shall hereafter be erected, reconstructed, altered, repaired, or occupied within said restricted resident districts without first securing from the city council a permit therefor. We held in the Manhattan Oil Co. case that both the statute and the ordinance are constitutional, and said case is stare decisis for the instant case.

The appellant contends that Rehmann v. City of Des Moines, 200 Iowa 286, 204 N.W. 267, "annihilates the Manhattan Oil Co. case." Nothing therein said by way of discussion can be deemed either an express or implied overruling of our pronouncement in the Manhattan Oil Co. case." In the Rehmann case, an ordinary builder's permit had been issued by the city and expense incurred by the one to whom the permit had been issued. The city attempted to revoke the permit. It was alleged by the city that the permit was procured by a promise to secure the consent of the property owners, or desist from making the improvement. On the issues joined, we found against the city. There was no question therein of the constitutionality of any statute or ordinance. It is apparent that anything therein said, by way of discussion, which may appear to be in conflict with our holding in the ...