State, ex rel. Krittenbrink v. Withnell

• Decision Date: 26 March 1912
• Docket Number: 16,600
• Citation: 135 N.W. 376,91 Neb. 101
• Parties: STATE, EX REL. J. HERMAN KRITTENBRINK, APPELLEE, v. CHARLES W. WITHNELL, BUILDING INSPECTOR OF THE CITY OF OMAHA, APPELLANT
• Court: Nebraska Supreme Court

135 N.W. 376

91 Neb. 101

STATE, EX REL. J. HERMAN KRITTENBRINK, APPELLEE, v. CHARLES W. WITHNELL, BUILDING INSPECTOR OF THE CITY OF OMAHA, APPELLANT

No. 16,600

Supreme Court of Nebraska

March 26, 1912

APPEAL from the district court for Douglas county: ALEXANDER C TROUP, JUDGE. Reversed.

REVERSED.

Harry E. Burnam, I. J. Dunn, John A. Rine and Clinton Brome, for appellant.

H. C Murphy, S. L. Winters and R. E. McNally, contra.

OPINION

ROSE, J.

This is an application for a writ of mandamus commanding defendant, as building inspector of Omaha, to issue to relator a permit to construct a brick-kiln on a tract of land owned by him in that city. Defendant had refused to issue the permit because he could not do so without violating an ordinance declaring: "It shall be unlawful for any person, persons, firm or corporation to erect or construct within the city of Omaha any kiln or oven to be used in the manufacture of brick." The trial court held, in harmony with the views of relator, that the ordinance was arbitrary, unreasonable and void, as being an invasion of personal rights and of private property. The writ was allowed, and defendant has appealed.

To establish the invalidity of the ordinance relator adduced proof tending to show: He is the owner of six and a half acres of land situated in the outskirts of Omaha, in the immediate neighborhood of a dairy and a pasture, remote from the densely populated portions of the city. He planned to construct and operate on the premises described a modern kiln, different from that formerly used in the manufacture of brick. According to his summary of the proofs relating to the new method, the brick-kiln "is nowise harmful to health or vegetation, produces little or no smoke, no deleterious gases, no obnoxious odors, and is not a rendezvous for vagrants and tramps." It is argued by relator that the contemplated enterprise at the place described would not be a nuisance per se, and that the city had no authority to interdict it as such. Had the city power to pass and enforce the ordinance?

By charter the state legislature delegated power to the city of Omaha in the following terms: "To make and enforce all police regulations for the good government, general welfare, health, safety and security of the city and the citizens thereof;" and "to prescribe fire limits and regulate the erection of all buildings and other structures within the corporate limits;" and "to define, regulate, suppress and prevent nuisances." Comp. St. 1911, ch. 12a, sec. 144, subds. XXV, XXXII, and sec. 52. Under the authority thus conferred, the city council in passing the ordinance obviously intended to exercise the police power of the city, and the courts should not interfere with its enforcement unless its unreasonableness, or the want of a necessity for such a measure, is shown by satisfactory evidence. Peterson v. State, 79 Neb. 132, 112 N.W. 306. It will be presumed that the city council in passing the ordinance acted with full knowledge of the conditions relating to the subject of brick-kilns located within the city limits. The reasons of public policy which prompted the city lawmakers to pass the ordinance may not appear on the face of the legislation, or in relator's petition, or in the evidence adduced at the trial of this case. Gardiner v. City of Omaha, 85 Neb. 681, 124 N.W. 105. The inquiry, therefore, is not necessarily limited to the city's authority to prevent or abate nuisances, but extends to every phase of police power delegated in any form to the municipality. In State v. Drayton, 82 Neb. 254, 117 N.W. 768, a well-established doctrine was announced in this form: "Within constitutional limits, the legislature is the sole judge as to what laws should be enacted for the protection and welfare of the people, and as to when and how the police power of the state is to be exercised." Relator's land in Omaha is held subject to proper rules regulating the common good and the general welfare of the people of that city. Wenham v. State, 65 Neb. 394, 91 N.W. 421. In testing police regulations like the ordinance assailed, the court should inquire "whether they have some relation to the public health or public welfare, and whether such is, in fact, the end sought to be attained." Smiley v. MacDonald, 42 Neb. 5, 60 N.W. 355; In re Anderson, 69 Neb. 686, 96 N.W. 149; Union P. R. Co. v. State, 88 Neb. 247, 129 N.W. 290. According to the principles of law to which reference has been made, relator was not entitled to a writ commanding defendant to issue a building permit in violation of the ordinance, unless the proofs clearly answer those inquiries in the negative and show that the enactment was an unreasonable and arbitrary invasion of individual rights under the guise of police regulation. Wenham v. State, 65 Neb. 394, 91 N.W. 421; Union P. R. Co. v. State, 88 Neb. 247, 129 N.W. 290.

Relator has not yet constructed his kiln, and the testimony adduced to show that it would not become a nuisance is based largely on observations of existing kilns operated according to the modern method described in his plans and evidence. According to the proofs the volume and character of the smoke will be less objectionable under the new process, but the stack will emit smoke of a light color continually. The fair inference from all the evidence is that black smoke in...