State ex rel. Nehrbass v. Harper

• Decision Date: 14 March 1916
• Citation: 156 N.W. 941,162 Wis. 589
• Parties: STATE EX REL. NEHRBASS ET AL. v. HARPER, BUILDING INSPECTOR.
• Court: Wisconsin Supreme Court

162 Wis. 589

156 N.W. 941

STATE EX REL. NEHRBASS ET AL.

v.HARPER, BUILDING INSPECTOR.

Supreme Court of Wisconsin.

March 14, 1916.

Appeal from Circuit Court, Milwaukee County; F. C. Eschweiler, Judge.

Petition by the State, on the relation of Lawrence Nehrbass and others, for writ of mandamus against William D. Harper, Building Inspector, etc. From an order overruling a demurrer to the petition, respondent appeals. Affirmed.

Mandamus by petitioners and respondents to compel the defendant and appellant, as inspector of buildings of the city of Milwaukee, to issue a permit for the erection of a garage for the storage and repair of automobiles on Oakland avenue in the city of Milwaukee. The petitioners alleged the facts necessary to show a full compliance with all the provisions of law and orders of every kind provided for by law in relation to securing a permit for the purpose of erecting the proposed garage, with the single exception that they had not complied with section 474 of the Milwaukee Code of 1914, hereinafter set out. The defendant and appellant demurred to the petition, the demurrer was overruled by the circuit court, and the defendant brings this appeal from the order overruling the demurrer.Daniel W. Hoan, City Atty., and E. L. McIntyre, Asst. City Atty., both of Milwaukee, for appellant.

W. H. Timlin, Jr., Patrick W. Dean, and John W. Burkhardt, all of Milwaukee, for respondents.

ROSENBERRY, J. (after stating the facts as above).

Upon the argument it was conceded by counsel that the only question involved was the validity of subsections (d) and (e) of section 474 of the Milwaukee Code of 1914, which are as follows:

“(d) Livery, boarding or sale stables, gas houses, gas reservoirs or holders, paint, oil or varnish works, salesroom or storage room for automobiles, or garages, for the keeping of automobiles for hire, may be built within that portion of the city not set aside for business purposes, providing that the person, firm or corporation desiring to build, remodel or maintain such building for the purpose of livery, boarding or sales stables, gas house, gas reservoir or holder, paint, oil or varnish works, salesroom or storage room for automobiles, or garage, for the keeping of automobiles for hire, shall first obtain the written consent of two-thirds of all the real estate owners within three hundred feet of the space occupied by the business proposed to be maintained.

(e) This written consent shall be accompanied by an affidavit setting forth that each name signed thereto is the signature in own handwriting of the person so named; this petition with affidavit attached must be filed with the Inspector of Buildings at the time that an application for a building permit for the erection, construction or remodeling of any building for such purpose of occupancy as a livery, boarding or sales stable, gas house, gas reservoir or holder, paint, oil or varnish works, salesroom or storage room for automobiles, or garage, for the keeping of automobiles for hire is made.”

The petition further alleged that the property upon which the proposed garage was to be erected was in what is known as the residence district, and its erection forbidden by the terms of the code, unless subsections (d) and (e) were complied with, but alleged that said sections were void. The validity of the ordinance is attacked upon two grounds: First, that it is unreasonable, and not a proper exercise of the police power; and, second, that it is void, for the reason that it attempts to delegate legislative power vested in the council to private citizens.

We find it necessary to consider the second ground of objection only. It will be noted that under the terms of the ordinance the real estate owners are not to determine whether a garage shall be erected within any certain specified limits, but may determine whether a particular garage shall be erected by a specified property owner at a particular place. The delegation of this power to adjacent property owners, without any restriction or limitation whatever, vests in such property owners the power to say as a matter of discretion that another property owner shall not be permitted to use his property in a certain way. No attempt is made to place it upon the ground of public welfare, public health, or any other interest which the public might have in the matter; but the determination is left to the desire, whim, or caprice of the adjacent owners.

Section 1 of chapter 266, Laws 1907, relating to sleeping car berths, is as follows:

“Whenever a person pays for the use of a double lower berth in a sleeping car, he shall have the right to direct whether the upper berth shall be open or closed, unless the upper berth is actually occupied by some other person; and the proprietor of the car and the person in charge of it shall comply with such direction.”

In a case arising under the provisions of this law the court said:

“Had it been thought that there is a substantial reason why, in the public interests, an upper berth should be closed when unoccupied, in case of the lower one being in use, the law would have so provided in all cases, instead of leaving it to the mere dictation, whether springing from judgment or...