Provo City v. Claudin
| Decision Date | 29 December 1936 |
| Docket Number | 5761 |
| Citation | 63 P.2d 570,91 Utah 60 |
| Court | Utah Supreme Court |
| Parties | PROVO CITY et al. v. CLAUDIN et al |
Rehearing Denied March 6, 1937.
Appeal from District Court, Fourth District, Utah County; Martin M Larson, Judge.
Suit for injunction by Provo City and another against C. O Claudin and others. From a decree for plaintiffs, named defendants and defendant Ruby A. Claudin, his wife, appeal.
AFFIRMED.
Christenson, Straw & Christenson, of Provo, for appellants.
R. B. Holbrook and Brockbank & Pope, all of Provo, and Morris & Callister, of Salt Lake City, for respondents.
This is an appeal by defendants Claudin, on the judgment roll alone, from a decree enjoining them from operating a funeral home in residential district class "B" in Provo City, Utah. The word "defendants" hereinafter used will refer to the Claudins solely unless otherwise specified. There are assignments on various rulings along the way, including the overruling of defendants' demurrer to plaintiffs' amended complaint, the sustaining of plaintiffs' demurrer to defendants' second amended answer, refusing to grant a change of judge, and an order denying defendants' motion to set aside the decree and vacate the injunction. But the main questions revolve about the construction and interpretation to be given to section 820 of chapter 65 of the Revised Ordinances of Provo City, which reads as follows:
The defendants claim that a proper construing of the section includes funeral homes, which as far as we are able to discern is a toned down name for mortuary. It is contended that the phrase "public semi-public buildings" includes mortuaries. We have difficulty in knowing what "public semi-public" means. Either the word "public" or the word "semi-public" should be eliminated, or both should, on the theory that this phrase can be given no meaning. Whichever of the three courses is adopted, it cannot help defendants. A funeral home is not a public nor a semi-public building within the meaning of this section. The section would not be likely to mention such uses as hospitals, hotels, philanthropic institutions, amusement parks, which are at least as semi-public as funeral homes, and fail specifically to mention funeral homes, if they were to be classed as semi-public. We do not think a funeral home is any more of a public purpose than a department store. The fact that, for reasons of public policy, morticians are given a preference out of the assets of an estate, does not make their business any the less a private business. Obtaining food and shelter are as important in their way as the proper burial of bodies in its way, yet food stores, hotels, and rented houses are not thought of as being public or semipublic uses. Whatever construction is put upon "public semi-public buildings," funeral homes were not meant to be included. If the phrase is altogether omitted because too ambiguous to give it meaning, the defendants' cause is not helped, for it appears that only such buildings or uses are permitted in class "B"residential district as are named in the section. All not permitted are prohibited. Thus falls defendants' argument that, if the section is too ambiguous to have intelligent meaning, funeral homes must be allowed. If the whole section were so ambiguous that the intention of the city commission could not be ascertained, there might be tenability to defendants' argument.
Defendants maintain that, if the statute is so construed as not to permit the funeral home, the prohibition must be considered arbitrary, discriminatory, and unreasonable (a) because the defendants are operating on one of the principal streets of the city, where the majority of buildings are devoted to business uses and situated in what is really a business district and one more suited to business than residence purposes; (b) that two other mortuaries are operating in this class "B" residence district and started to do so since the ordinance became effective; (c) that defendants constructed their building at great cost, and, unless permitted to use it, will suffer considerable loss of investment; and (d) that the "funeral home" of defendants is used as a two-family home and the business conducted on said premises is a customary home occupation as authorized by the ordinance.
These four reasons are set out as affirmative allegations in defendants' second amended answer. The demurrer to this answer was sustained. This is assigned as error. At the time of the ruling the court allowed ten days "without notice" within which to amend. Defendants' counsel was present in court, but did not ask for further time. No amendment was filed within ten days, whereupon defendants' default was entered and, without notice to defendants and without their or their counsel's presence, testimony was taken on the part of plaintiffs and they were granted judgment. Findings of fact and a decree granting the injunction followed and a writ of injunction issued pursuant to the decree. Defendants assign error to the entering of defendants' default and all the steps which succeeded it above enumerated.
It will be seen that, if the demurrer to the answer was properly sustained on the theory that the latter did not in law state an answer, then there was no error in granting the default upon the theory that there was not a sufficient answer filed, unless the default was unseasonably granted because time for defendants to amend had not run. We shall first consider the substantive reason, to wit, that the affirmative allegations of the answer made an issue. It will be seen that reason (a) above is directed to a contention that the ordinance itself is unreasonable and discriminatory because it fails to put the locality where defendants have their mortuary in the commercial district. Reason (b) is directed to an alleged discriminatory administration of the ordinance, charging favoritism rather than intrinsic or inherent discrimination in the ordinance itself. Reason (d) above is so obviously without merit that we shall not discuss it. Reason (c) is accompanied by other allegations purporting to raise an estoppel against the city by reason of an alleged permit to remodel and remodeling of the building under the supervision of the building inspector, involving, without protest or complaint by the city or its officials, the expenditure of large sums of money. Plaintiffs in their reply brief state that this permit to remodel was one to remodel a dwelling as such and obtained after defendants were denied the right to construct and operate a funeral home, and that defendants, in defiance of the denial by the board of adjustment, caused the building under guise of a house remodeling to be remodeled and constructed for a mortuary. Since no evidence has come up with the record, we cannot accept this statement in plaintiffs' brief as a fact. For the purpose of testing the ruling on plaintiffs' demurrer to defendants' second amended answer, these facts endeavoring to set up an estoppel must be taken as true. But it appears that the board of adjustment denied the application to remodel as a funeral home. If we accept as true the allegations that the defendants obtained authority to remodel and did so under the supervision of the building inspector, we have a situation where defendants admit obtaining a permit after the right to so build and operate had been denied them. Assuming that the employees of the city granted the permit and supervised the building, it was all knowingly without authority or right by defendants, granting that the board of adjustment was acting within its jurisdiction and its decision had not been overturned. An estoppel cannot be erected on such a foundation. We see no error therefore in holding that the affirmative allegation--designed as (c) above--did not constitute an answer.
Is it an answer to set up in this action that the ordinance is arbitrary, discriminatory, and unreasonable because it is claimed that the locality in which defendants have established their parlors is really commercial in nature and should be included in the commercial district? The answer sets up in paragraph (g) thereof the following:
"That heretofore, to-wit, in November, 1932, this defendant C. O Claudin, made an application to establish a funeral home upon the premises described in plaintiffs' amended...
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