State v. Finney
| Decision Date | 29 June 1944 |
| Docket Number | 7183 |
| Citation | 150 P.2d 130,65 Idaho 630 |
| Parties | STATE OF IDAHO, Respondent, v. JOHN FINNEY, Appellant |
| Court | Idaho Supreme Court |
1. Municipal corporations
A complaint alleging that defendant in violation of city ordinance maintained upon waters of lake a houseboat used as a residence and setting forth such particulars as to time place, persons and property as to enable defendant to understand character of offense complained of was sufficient as against claim that it stated merely a conclusion. (I. C A., secs. 19-4001, 49-1149.
2. Municipal corporations
The enactment and enforcement of city ordinance prohibiting the anchoring or maintaining upon waters of lake within city limits of any craft used as a residence was in the interest of general health and welfare. (I. C. A., secs. 49-313, subd 4, 49-1149.)
3. Constitutional law
Although defendant under license from riparian owner had long used portion of lake within city limits for moorage of his houseboat and had thus acquired a vested right, such right was subject to action of city within its police power in enacting ordinance prohibiting anchoring of houseboat used as residence upon waters of lake. (I. C. A., sec. 49-313, subd 4.)
4. Constitutional law
Criminal law
Eminent domain
Witnesses
An ordinance prohibiting the anchoring or maintaining upon waters of lake within city limits of any craft used as a residence does not violate the Fourteenth Amendment to the Federal Constitution or state constitutional provisions recognizing inalienable rights of enjoying and defending life and liberty, acquiring possession of property and pursuing happiness, and guaranteeing speedy public trial and right to compel attendance of witnesses and to appear and defend in person and with counsel in criminal prosecutions and requiring just compensation for taking of private property for public use.
5. Constitutional law
Due process and equal protection provisions of Constitution are not intended to interfere with exercise of police power, which is only subject to qualification that measures adopted must be de- signed to effect some public object which government may legally accomplish, and must be reasonable and have some direct, real and substantial relation to public object sought to be accomplished. (U. S.C. A. Const. Amend. 14; Const. Idaho art. 1, secs. 1, 14.)
6. Municipal corporations
The general power of a city to declare a nuisance does not include the power to declare anything a nuisance which is not one in fact nor one per se.
7. Municipal corporations
A municipal ordinance prohibiting the anchoring or maintaining upon waters of lake within city limits of any houseboat or craft used as a residence was within powers of city, and such regulation was reasonable and justified as a public health measure. (I. C. A., sec. 49-313, subd. 4.)
Appeal from the District Court of the Eighth Judicial District, for Kootenai County. Hon. Bert A. Reed, District Judge.
Affirmed.
Frank Griffin and Harold S. Purdy for appellant.
In a complaint charging a public nuisance, facts must be alleged to show that the offending acts constitute a nuisance, public in its character; merely stating that a public nuisance is being maintained is not sufficient without a statement of the facts from which the conclusion is drawn. (United States Board & Paper Co. v. State, 91 N.E. 954 (Ind.); 46 C. J. 818, Sec. 482; 19-4001, I. C. A.)
One having license from riparian owner to moor houseboat to riparian land has the right to use public waters, adjacent thereto and the lands thereunder, so long as the use thereof does not interfere with navigation, pollute such waters, or unreasonably interfere with the rights of the public in general. (45 C. J. 559, 560 Sec. 249; Callahan v. Price, 26 Ida. 745, 754; Northern Pacific Ry. Co. v. Hirzel, 29 Ida. 438.)
A houseboat is not a nuisance per se; therefore it is incumbent upon the respondent to prove that the houseboat in question is a nuisance per accidens. (City of Twin Falls v. Harlan, 27 Ida. 769, 781; Continental Oil Co. v. City of Twin Falls, 49 Ida. 89, 103, 106; In re Hull, 18 Ida. 475; Hansen v. Ind. School Dist. No. 1, 61 Ida. 109, 116, 117, 119; 46 C. J. 648, Sec. 5.)
No State shall make or enforce any law which shall abridge the privileges or immunities of the citizens of the United States; nor shall any State deprive any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Bert H. Miller, Attorney General; J. R. Smead, Assistant Attorney General, and W. B. McFarland for respondent.
It is not only the right, but the imperative duty of the city government to watch over the health of its citizens and to remove every nuisance, so far as they may be able, which may endanger it. (Baker v. Boston, 22 Am. D. 421.)
The burden of proving an ordinance unreasonable is upon defendants, and the ordinance is prima facie reasonable and valid. (ExParte Jones, 109 P. p. 570; Duncan Electric Co. v. City of Duncan, 166 P. 1048; McQuillin on Municipal Corporations, Sec. 902, 1913 Ed., citing with approval Paxson v. Sweet, 13 NJL, 196.)
Statutes authorizing cities to declare nuisances are to be liberally construed to effectuate the purpose of legislation. (McQuillin on Municipal Corporations, 1913 Ed., Sec. 899; Nourse v. City of Russellville, 78 S.W.2d 761.)
If it appears that the question of a nuisance or not is one as to which there might be an honest difference of opinion, the action of the city is conclusive of the question. (Calkins v. Ponca City, 214 P. 188; McQuillin on Municipal Corporations, 1913 Ed., Sec. 903; Laugel v. Bushnell, 63 N.E. 1086.)
Appellant Finney was convicted in the Police Court of the City of Coeur d'Alene on the charge of maintaining within the limits of the City of Coeur d'Alene upon a certain section of Coeur d'Alene Lake, a houseboat used as a residence, in violation of Ordinance No. 762 of said City. Upon appeal to the District Court of the Eighth Judicial District, in and for Kootenai County, and after trial by the Court without a jury, the learned Judge of said Court sustained the prior conviction by adjudging the defendant guilty as charged, and ordered him to pay a fine of $ 1.00.
The case is before us on appeal from this judgment.
Timely objections to the complaint were properly made by demurrer, and motions to dismiss, quash the warrant of arrest, and for release of defendant, all of which were argued and overruled prior to trial.
A number of assignments of error are alleged, mainly based upon the contention the ordinance is unconstitutional, in that it violates the 14th Amendment of the Federal Constitution; Art. 1, Sec. 1, Art. 1, Sec. 13 and Art. 1, Sec. 14, of the State Constitution.
Section 2 of the ordinance is pertinent here. It reads in part as follows:
Appellant attacks the sufficiency of the complaint, contending it states merely the conclusion and not the acts constituting the nuisance.
The charge as contained in the complaint is very much in the words as used in Section 2 of the ordinance, and is to effect that appellant, in violation of the ordinance, maintained upon the waters of the Lake a houseboat used as a residence, and for living purposes, and thereby maintained a public nuisance. The complaint sets forth the offense, with such particulars as time, place, person and property, as to enable the person charged to understand distinctly the character of the offense complained of, and to answer the same, and is sufficient. (Sec. 19-4001, I. C. A.; State v. Ashby, 40 Ida. 1, 230 P. 1013, 46 C. J. 818, Sec. 481.)
The portion of the Lake involved here, was taken into and made a part of the City of Coeur d'Alene by Ordinance No. 759 passed and approved April 18, 1938, and its enactment was pursuant to and authorized by Sec. 49-1149, I. C. A.
It was undoubtedly the intention of the Legislature in thus expressly authorizing incorporated cities and villages situated on navigable streams and lakes, to include portions thereof within their respective boundaries, as authorized by the Act, for the purpose of enabling the municipalities to exercise control over this included and added territory, to the same extent and for the same purpose as it is generally empowered with respect to other territory within the corporate boundaries.
Among the powers specifically granted to the municipalities by the Legislature, is the power "to make regulations to secure the general health of the city and to prevent and remove nuisances and to provide the city with water." (Sec. 49-313, Subd. 4.)
The undisputed evidence in this case shows Coeur d'Alene to be a congested, growing city. It is a popular summer resort and its beaches and parks adjoining this section of the Lake are widely used, with Sunday crowds of from ten to twenty-five thousand enjoying these facilities; its business and residential sections are in close proximity to that part of the waters involved here, and the City's place of intake of its water supply from this...
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