Russell v. City of Fargo
| Decision Date | 06 June 1914 |
| Docket Number | 81912 |
| Citation | 148 N.W. 610,28 N.D. 300 |
| Court | North Dakota Supreme Court |
Rehearing denied September 10, 1914.
Action to enjoin the city commission and city engineer of the city of Fargo from interfering with the rights of plaintiff to make repairs upon a building owned by her within the fire limits of the city of Fargo, and from constructing and maintaining a fence to turn pedestrians off the sidewalk adjoining such building. The defendants had judgment dismissing plaintiff's action, from which this appeal was taken. Hon C. A. Pollock, J.
Affirmed.
M. A Hildreth, for appellant.
The ordinance which is the foundation for these proceedings on the part of the defendant is unconstitutional and void. Its provisions are arbitrary and unreasonable. Sioux Falls v Kirby, 6 S.D. 62, 25 L.R.A. 621, 60 N.W. 156; Wadleigh v. Gilman, 12 Me. 403, 28 Am. Dec. 188; Montgomery v. Louisville & N. R. Co. 84 Ala. 129, 4 So. 626; Newton v. Belger, 143 Mass. 598, 10 N.E. 464.
The ordinance is void because conferring upon the building inspector arbitrary, unreasonable, and unjust powers. State v. Tenant, 110 N.C. 609, 15 L.R.A. 423, 28 Am St. Rep. 715, 14 S.E. 387.
The ordinance is void because it requires the payment of a fee into the city treasury. It attempts to create a further and unwarranted tax upon appellant and her property. Dunham v. Rochester, 5 Cow. 462; 1 Dill. Mun. Corp. 423-425; 2 Dill. Mun. Corp. 4th ed. 940; St. Mary's Industrial School v. Brown, 45 Md. 310; Com. v. Stodder, 2 Cush. 562, 48 Am. Dec. 679; Mays v. Cincinnati, 1 Ohio St. 268; St. Paul v. Traeger, 25 Minn. 248, 33 Am. Rep. 462; People ex rel. Lynch v. Special Sessions Justices, 12 Hun, 65; State, Benson, Prosecutor, v. Hoboken, 33 N.J.L. 280; People v. Jarvis, 19 A.D. 466, 46 N.Y.S. 596; Buffalo v. Stevenson, 145 A.D. 117, 129 N.Y.S. 125; Solomon v. Hughes, 24 Kan. 211; New York v. Hexamer, 59 A.D. 4, 69 N.Y.S. 198; New York v. Second Ave. R. Co. 32 N.Y. 261; Anderson v. Wellington, 40 Kan. 173, 2 L.R.A. 110, 10 Am. St. Rep. 175, 19 P. 719; Chicago v. Trotter, 136 Ill. 430, 26 N.E. 359; Re Frazee, 63 Mich. 396, 6 Am. St. Rep. 310, 30 N.W. 72; State ex rel. Garrabad v. Dering, 84 Wis. 585, 19 L.R.A. 858, 36 Am. St. Rep. 948, 54 N.W. 1104; Newton v. Belger, 143 Mass. 598, 10 N.E. 464; Yick Wo v. Hopkins, 118 U.S. 356, 30 L.Ed. 220, 6 S.Ct. 1064; Noel v. People, 187 Ill. 587, 52 L.R.A. 287, 79 Am. St. Rep. 238, 58 N.E. 616.
The ordinance is void because there is no grant of such power in the charter, as a basis therefor. Keokuk v. Scroggs, 39 Iowa 447; Pye v. Peterson, 45 Tex. 312, 23 Am. Rep. 608; Kneedler v. Norristown, 100 Pa. 368, 45 Am. Rep. 383; Champaign v. Harmon, 98 Ill. 491; Hudson v. Thorne, 7 Paige, 261, 4 L.Ed. 148, note; State v. Schuchardt, 42 La.Ann. 49, 7 So. 67; Troy v. Winters, 2 Hun, 63; State ex rel. Standard Oil Co. v. Blaisdell, 22 N.D. 86, 132 N.W. 769, Ann. Cas. 1913E, 1089; Mayville v. Rosing, 19 N.D. 98, 26 L.R.A.(N.S.) 120, 123 N.W. 393.
The city council or commission form of government cannot deprive a person of property by condemnation provided for in such ordinance. Judicial powers cannot be so vested in administrative officers. Connecticut River R. Co. v. Franklin County, 127 Mass. 50, 34 Am. Rep. 339; Holland v. Baltimore, 11 Md. 186, 69 Am. Dec. 195; Baltimore v. Porter, 18 Md. 284, 79 Am. Dec. 686; Third Ave. R. Co. v. New York, 54 N.Y. 159; Atlanta v. Jacobs, 125 Ga. 523, 54 S.E. 534; Hewin v. Atlanta, 121 Ga. 723, 67 L.R.A. 795, 49 S.E. 765, 2 Ann. Cas. 296.
Emerson H. Smith, for respondent.
The real or decisive point in this case is whether or not the police power and authority is extended to the city council for the welfare and safety of the public.
Respondents contend that cities have such power and that an ordinance is valid. McGehee, Due Process of Law, 303; Fischer v. St. Louis, 194 U.S. 361, 48 L.Ed. 1018, 24 S.Ct. 673; California Reduction Co. v. Sanitary Reduction Works, 199 U.S. 306, 50 L.Ed. 204, 26 S.Ct. 100; Reagan v. Farmers' Loan & T. Co. 154 U.S. 362, 38 L.Ed. 1014, 4 Inters. Com. Rep. 560, 14 S.Ct. 1047; Reetz v. Michigan, 188 U.S. 505, 47 L.Ed. 563, 23 S.Ct. 390; Evansville v. Miller, 146 Ind. 613, 38 L.R.A. 161, 45 N.E. 1054; Brady v. Northwestern Ins. Co. 11 Mich. 446; Eichenlaub v. St. Joseph, 113 Mo. 395, 18 L.R.A. 593, 21 S.W. 8; Hine v. New Haven, 40 Conn. 478; Carthage v. Frederick, 122 N.Y. 268, 10 L.R.A. 178, 19 Am. St. Rep. 490, 25 N.E. 480.
The fact that the license fee is payable into the city treasury, provided the fee be a reasonable one, does not impress it with the character of a tax. Johnson v. Philadelphia, 60 Pa. 445; Welch v. Hotchkiss, 39 Conn. 140, 12 Am. Rep. 383; Wilson v. Eureka City, 173 U.S. 32, 43 L.Ed. 603, 19 S.Ct. 317; California Reduction Co. v. Sanitary Reduction Works, 199 U.S. 319, 50 L.Ed. 210, 26 S.Ct. 100; Louisville & N. R. Co. v. Kentucky, 161 U.S. 677, 40 L.Ed. 849, 16 S.Ct. 714; Gundling v. Chicago, 176 Ill. 340, 48 L.R.A. 233, 52 N.E. 44; Bowditch v. Boston, 101 U.S. 16, 25 L.Ed. 980; Camfield v. United States, 167 U.S. 524, 42 L.Ed. 262, 17 S.Ct. 864; Brady v. Northwestern Ins. Co. 11 Mich. 446.
A municipal corporation possesses not only the powers specifically conferred upon it by its charter, but also all such powers as are necessarily incident to, or may be implied from, those powers, including all that are essential to the declared object of its existence. Carthage v. Frederick, 122 N.Y. 268, 10 L.R.A. 178, 19 Am. St. Rep. 490, 25 N.E. 480; Louisville & N. R. Co. v. Kentucky, 161 U.S. 677, 40 L.Ed. 849, 16 S.Ct. 714; Reetz v. Michigan, 188 U.S. 508, 47 L.Ed. 566, 23 S.Ct. 390; Davison v. Walla Walla, 52 Wash. 453, 21 L.R.A.(N.S.) 454, 132 Am. St. Rep. 983, 100 P. 981.
The right to tear down a wooden building remodeled in fire limits contrary to the ordinance is police right, and not a judicial question. Eichenlaub v. St. Joseph, 113 Mo. 395, 18 L.R.A. 593, 21 S.W. 8; Davison v. Walla Walla, 52 Wash. 453, 21 L.R.A.(N.S.) 454, 132 Am. St. Rep. 983, 100 P. 981; McKibbin v. Ft. Smith, 35 Ark. 352; Klingler v. Bickel, 117 Pa. 326, 11 A. 555; King v. Davenport, 98 Ill. 305, 38 Am. Rep. 89; Baumgartner v. Hasty, 100 Ind. 575, 50 Am. Rep. 830; Hine v. New Haven, 40 Conn. 478.
A characteristic of the action of the police and legislative power is that it does not require the taking of private property for public use in the constitutional sense, and no compensation need be made as a condition thereto. McGehee, Due Process of Law, 303; Fischer v. St. Louis, 194 U.S. 361, 48 L.Ed. 1018, 24 S.Ct. 673; California Reduction Co. v. Sanitary Reduction Works, 199 U.S. 306, 50 L.Ed. 204, 26 S.Ct. 100; Reagan v. Farmers' Loan & T. Co. 154 U.S. 362, 38 L.Ed. 1014, 4 Inters. Com. Rep. 560, 14 S.Ct. 1047; Reetz v. Michigan, 188 U.S. 505, 47 L.Ed. 563, 23 S.Ct. 390; Evansville v. Miller, 146 Ind. 613, 38 L.R.A. 161, 45 N.E. 1054; Brady v. Northwestern Ins. Co. 11 Mich. 446.
Plaintiff, in any event, is estopped to receive the relief demanded. Gundling v. Chicago, 176 Ill. 340, 48 L.R.A. 234, 52 N.E. 44, 177 U.S. 186, 44 L.Ed. 728, 20 S.Ct. 633.
The object of this suit is to obtain a decree adjudging that the building ordinance of the city of Fargo, known as Chapter 13 of the Consolidated Ordinances, as amended in § 9 of title 2, chap. 2, and §§ 1 and 2 thereof, by an ordinance approved June 16, 1910, is null and void; that certain proceedings instituted thereunder, as relating to a building owned by the plaintiff and appellant in July, 1913, situated on lots 1 and 2 of S. G. Robert's addition to the city of Fargo according to plat No. 2, be adjudged illegal and void; and that plaintiff have a permanent injunction restraining the defendants, city of Fargo, the members of its commission, and its city engineer, from interfering in any wise with the rights of the plaintiff with reference to such building, or interfering with her making such repairs as she may be advised are necessary with reference thereto, and for general equitable relief.
The defendant's answer alleges that the defendant Anders was the city engineer and building inspector; that, as such, and under the powers conferred by the said chapter 13, he notified plaintiff in writing of his action in stopping repairs unlawfully being made on the building described, that the defendants had not at any time under consideration the tearing down of said building, but had acted solely to protect life and property, and especially of those using the sidewalks along said building, from injury, in case the building should collapse, by building a railing on the outside of said sidewalk, in front of and on the north side of said building, leaving openings therein to accommodate the occupants and pedestrians; that this was done, believing that there was imminent danger that a collapse would occur in case the four walls should be pulled off the foundation on the north side, which they were liable to be, and in which case it was believed that the north and east walls would fall outward on the sidewalk and endanger the lives of persons passing; that said block is an old frame building, covered with brick veneer, located within the fire limits, and during all times mentioned was damaged by the elements and decay more than 50 per cent of its value above its foundation; that no building permit was or had been applied for to make repairs thereon as required by the ordinance. It is then alleged that she had submitted the matter to arbitration in accordance with the terms of the...
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