State ex rel. Twin City Building & Investment Company v. Houghton
| Decision Date | 24 October 1919 |
| Docket Number | 21,104 |
| Parties | STATE EX REL. TWIN CITY BUILDING & INVESTMENT COMPANY v. JAMES G. HOUGHTON, AS INSPECTOR OF BUILDINGS OF THE CITY OF MINNEAPOLIS |
| Court | Minnesota Supreme Court |
Motion on Reargument Filed January 23, 1920
Upon the relation of the Twin City Building & Investment Company the district court for Hennepin county granted its alternative writ of mandamus directed to James G. Houghton as inspector of buildings of the city of Minneapolis commanding him to issue to relator a permit and license to install electric wiring in a certain building, or show cause why he had not done so. The matter was heard before Molyneaux, J., who sustained plaintiff's demurrer to the return of respondent and ordered that the permit issue. From the judgment entered pursuant to the order for judgment, the inspector of buildings appealed. Reversed on reargument.
Eminent domain -- public use -- restricted residence district.
Condemnation cannot be had for a use which is not public, and the condemnation of property against its use for an apartment building, as provided by Laws 1915, c. 128, is not for a public use. [See Paragraph 2 below.]
January 23, 1920.
Subject of act expressed in its title.
1. The subject of Laws 1915, c. 128, relating to restricted residence districts in cities of the first class, for the establishment of which condemnation is provided, is sufficiently expressed in its title within the constitutional requirement, though the subject of condemnation is not mentioned in it.
Prohibition of apartment houses constitutional.
2. Laws of 1915, c. 128, provides for restricted residence districts in cities of the first class in which certain classes of buildings shall not be erected. Such restricted district is established by the exercise of the power of eminent domain and apartment houses, among other classes of buildings, are prohibited therein. The Constitution permits the taking or destruction or damage of private property for public use alone. It is held that the restriction as applied to an apartment house is based upon a public use and that the statute providing for condemnation is constitutional.
C. D. Gould and R. S. Wiggin, for appellant.
The answer set up that on February 23, 1918, relator applied for a permit to build a three-story apartment house at a cost of about $50,000; that on March 8, 1918, the city council passed a resolution pursuant to Laws 1915, p. 180, c. 128, designating the block in which relator's land was situated as a restricted residence district, and directed the building inspector not to issue any permit for the building of any structure prohibited under the resolution; that relator was informed immediately of the action of the council, but made application to the building inspector for a permit for electric wiring in such building which was refused; that no work had been done in construction of the building, and the premises were still vacant and unoccupied.
Chapter 128, p. 180, Laws 1915, is constitutional, and the protection of the public health, safety, convenience and welfare is a public use. The right of eminent domain may be exercised to protect the public health and provide for the public convenience and welfare. Lien v. Board of Co. Commrs. of Norman County, 80 Minn. 58, 62, 82 N.W. 1094. The particular kinds of business prohibited by this act: Coalyards, public garages, public stables, dyeing, cleaning and laundering establishments, bill-boards and blacksmith shops, have all been held to be such as might be prohibited in any particular district, in the exercise of the police power, even without compensation. Is it not a valid exercise of the power of eminent domain to protect a particular part of the public from the encroachment of such business as the courts say may be protected in the exercise of the police power? In State v. Houghton, 134 Minn. 226, 158 N.W. 1017, the court was careful not to decide whether a mercantile establishment could be prohibited.
The question what is a public use is a question for the court, but necessity or expediency in the exercise of the power of eminent domain for the public use is a question for the legislature. Lewis, Em. Dom. (3d ed.) § 251. See also section 271; Attorney General v. Williams, 174 Mass. 476, 480, 55 N.W. 77; In re City of New York, 57 A.D. 166, 68 N.Y.S. 196, 200, affirmed 167 N.Y. 624, 60 N.E. 1108; Shoemaker v. U.S. 147 U.S. 282, 297, 13 S.Ct. 361, 37 L.Ed. 170. If the public health, safety, convenience and welfare are protected by the creation of restricted districts, public money may be expended in securing the benefit thereof.
For a use to be public it is not essential that the entire community or any considerable portion of it should directly enjoy or participate in the improvement, for the benefits from it will inure to the use and benefit of the parties concerned, considered as members of the community or of the state, and not solely as individuals, and it is not fatal to the act if private interests be advanced. Sisson v. Supervisors, 128 Iowa 442, 454, 104 N.W. 454, 70 L.R.A. 440; State v. Board of Co. Commrs. Polk County, 87 Minn. 325, 338, 92 N.W. 216.
John E. Samuelson, Leonard McHugh and M. T. O'Donnell, as attorneys for the city of Duluth, filed a brief as amici curiae.
The city council of Duluth began proceedings under the act of 1915 to establish a residence district by passing the necessary resolution on June 30, 1919, appointing appraisers and directing the necessary steps to be taken to complete the restrictions, when a property owner in the proposed district filed his complaint to restrain the city from establishing such district and secured an order temporarily restraining the city from proceeding further in the matter, and after a hearing upon an order to show cause the presiding judge announced he would await the decision of the supreme court in this present case.
A. Where police power is not broad enough, eminent domain may be resorted to. It would seem that the only objection to such restrictions which the court found in the act of 1913 arose from the failure to provide compensation for the prohibition. State v. Houghton, 134 Minn. 226, 158 N.W. 1017. The legislature of 1915 passed the present act to cure this defect. The police power may be evoked without giving compensation, while the power of eminent domain cannot be exercised without giving compensation. The one is usually called a regulation, the other a taking. But either power must be exercised for the public need. If a regulation or restriction on the use of property goes beyond the limits prescribed for the police power, it then falls within the realm of eminent domain. Therefore there is no logical reason why such regulation or restriction may not be imposed under the power of eminent domain, so long as it satisfies the constitutional requirements of giving compensation and being exercised by due process of law.
B. Powers granted by the act of 1915 are for a public use. Public use is the employment or application of a thing by the public, or use by the public. Minnesota Canal & Power Co. v. Koochiching Co. 97 Minn. 429, 107 N.W. 405. Our court qualifies its definition of a public use by giving it the conception of benefit, of public utility and of general welfare. If the charter of the company named had not limited the power of the company to furnishing water from the wheels thereof, the court undoubtedly would have sustained the use as a public use. In the case of Minnesota Canal & Power Co. v. Pratt, 101 Minn. 197, 112 N.W. 395, the question of public use did not arise. The public welfare and convenience require that there should be parts of the city wherein the members thereof can erect homes, knowing that they will be able to get away from business buildings and crowded flat buildings and enjoy their homes without annoyance. It cannot be denied that there is a great demand for such places to erect residences, such demands being evidenced by the fact that the state legislature has twice enacted legislation on these lines, and that the councils of St. Paul, Minneapolis and Duluth have promptly taken advantage of such laws to create such districts. It is not necessary that it should be a use for the entire public. Lien v. Board of Co. Commrs. of Norman County, 80 Minn. 58, 82 N.W. 1094.
Public use may exist in the form of a prohibition of a private use. There are countless cases where the police power has been legally used to serve public uses through prohibition, restriction on the use of private property. There are cases where eminent domain has been used to serve public purposes through a negative use. Attorney General v. Williams, 174 Mass. 476, 55 N.E. 77; In re City of New York, 57 A.D. 166, 68 N.Y.S. 196, affirmed 167 N.Y. 624, 60 N.E. 1108. Restriction of flats from an exclusive residential district serves a public use. Very fine residences are usually surrounded by spacious lawns and plenty of shrubs and trees. Such a district serves the same public use for which parks are created. They are in reality parks maintained at private expense. Every citizen takes pride in such districts and visitors to the city take away with them a fine picture of such city, owing to such districts. Such a restricted residence district prevents congestion which is another public use of health and general welfare.
In the construction of constitutional limitations the courts must keep pace with the times and recognize changing conditions and growing interests. In Noble State Bank v Haskell, 219 U.S. 575, 31 S.Ct. 299, 55 L.Ed. 341, upon petition for rehearing, the language of Justice Holmes was that certain cases were cited to show that among public uses for which property might be taken, not for a...
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