Vill. of Ashley v. Ashley Lumber Co.

• Decision Date: 25 September 1918
• Citation: 169 N.W. 87,40 N.D. 515
• Parties: VILLAGE OF ASHLEY v. ASHLEY LUMBER CO.
• Court: North Dakota Supreme Court

40 N.D. 515

169 N.W. 87

VILLAGE OF ASHLEY

v.ASHLEY LUMBER CO.

Supreme Court of North Dakota.

Aug. 5, 1918.

Rehearing Denied Sept. 25, 1918.

Syllabus by the Court.

Under the provisions of paragraph 3 of section 3861 of the Compiled Laws of 1913, which among other things gives to the board of trustees of villages the power generally “to establish other measures of prudence for the prevention or extinguishment of fires as it shall deem proper,” such village trustees have the power to establish fire limits.

The courts must presume honesty and not dishonesty, as far as the actions of village trustees are concerned.

The limits of a fire district must necessarily be largely left to the sound discretion of the administrative or legislative body which is authorized to create it.

Where, in violation of the provisions of a village ordinance, a person erects a wooden structure within a fire district, and the only penalty prescribed by the ordinance is a fine of $10 for such construction, but the ordinance also provides that the village trustees may condemn such building, if erected, and order its destruction or removal, and when there is doubt as to the validity of the ordinance and the power of the village trustees to create the same, the court in a proceeding in equity to determine such question, and after resolving the doubt in favor of the village, may order the defendant to remove such building, even though generally speaking it is not of such a nature as to be a nuisance at the common law.

Additional Syllabus by Editorial Staff.

Cities and villages are creatures of the statute alone and have no inherent powers, but such only as Legislature has granted by charters or general incorporation acts, and powers necessarily implied from or incidental to those expressly granted, or indispensable to declared objects of their creation.

Contention that establishment of fire limits would be unnecessary in villages, though reasonable in cities, and that court must credit Legislature with knowledge thereof, is without merit, in view of fact that danger from fire is greater in villages and that need of proper precautions is more necessary.

Denial of power to village trustees to establish fire limits cannot be based on the fact that such power is clearly granted to cities by Cities and Village Act of 1895, and Laws 1887, c. 73, but not in case of villages, or under Comp. Laws 1913, § 3861, subd. 3, authorizing villages to take measures to prevent or extinguish fires.

An ordinance of village trustees establishing fire limits was not arbitrary, unreasonable, and discriminatory, though large part of village, including garage, etc., was not included therein.

The word “town” is quite commonly used as a generic term and as including both cities and villages (citing Words and Phrases, First Series, Towns).

Appeal from District Court, McIntosh County; Frank P. Allen, Judge.

Action in Equity by Village of Ashley against the Ashley Lumber Company to compel the removal of a frame building constructed in violation of a village ordinance. Judgment for defendant, and plaintiff appeals. Reversed and remanded, with direction to enter judgment for plaintiff.

Birdzell and Robinson, JJ., dissenting.M. J. George, of Ashley, and W. S. Lauder, of Wahpeton, for appellant. Gannon and Ludwigs, of Ashley, for respondent.

BRUCE, C. J.

This is an action in equity to have decreed to be a nuisance, and abated as such, a certain frame building of the dimensions of 14 by 20 feet with 8-foot posts, which was constructed in the village of Ashley in violation of the terms of the village ordinance which created a fire district.

Although it seems to be conceded that the building was not in itself such a structure as would have been deemed a nuisance at the common law, the plaintiff and appellant contends that, since the building was within the limits of the fire district and was constructed in violation of the village ordinance, it could be properly decreed to be removed, and that the creation of the fire district made proof of the fact of an actual nuisance unnecessary. The contention of the defendant and respondent is that in the first place the village of Ashley had not the power to pass the ordinance in question, and in the second that, if it had such power, the power had not been exercised in a reasonable and fair manner and without discrimination, and that therefore the ordinance was invalid, or that, at any rate, a court of equity should not enforce the provisions of an ordinance so enacted. He also maintains that the case is not in any event one of which courts of equity will take cognizance, since the remedies afforded by the courts of law are adequate to the situation.

[1] The only express grant of power, as far as villages are concerned, seems to be contained, if contained at all, in paragraph 3 of section 3861, Compiled Laws 1913, which provides that:

“The boards of trustees shall have the following powers: * * * To organize fire companies, hook and ladder companies, to regulate their government and the times and manner of their exercise; to provide all necessary apparatus for the extinguishment of fires; to make owners of buildings provide ladders and fire buckets, which are hereby declared to be appurtenances to the real estate and exempt from execution, seizure or sale; and if the owner shall refuse to procure suitable ladders or fire buckets after reasonable notice, the trustees may procure and deliver the same to him; and in default of payment thereof may recover of said owner the value of said ladders and fire buckets, by suit before the justice of the peace of the village, and the costs accruing thereby; to regulate the storage of gunpowder and other material; to direct the construction of a place for the safe deposit of ashes; and may under any order by it entered upon the proper book of the board, visit or appoint one or more fire wardens to visit, and examine, at all reasonable hours, dwelling houses, lots, yards, inclosures, and buildings of every description, discover if any of them are in a dangerous condition, and provide proper remedies for such dangers; to regulate the manner of putting up stoves and stovepipes; to prevent out-fires and the use of fireworks and the discharge of firearms within the limits of said corporation or such parts thereof as it may think proper; to compel the inhabitants of such village to aid in extinguishment of fire and prevent its communication to other buildings, under such penalties as are in this chapter provided; to construct and preserve reservoirs, wells, pumps, and other water works, and to regulate the use thereof, and, generally, to establish other measures of prudence for the prevention or extinguishment of fires as it shall deem proper.”

This section is to be compared with section 3599 of the Compiled Laws of 1913, subdivision 47 of which provides that a city shall have the power:

“To prescribe the limits within which wooden buildings shall not be erected or placed, or repaired without permission, and to direct that all and any buildings within said limits, which shall be known as the fire limits, when the same shall have been damaged by fire, decay or otherwise, to the extent of fifty per cent. of the value, shall be torn down or removed and to prescribe the manner of ascertaining such damage and to provide for the removal of any structure or building erected contrary to such prescription, and to declare each day's continuance of such structure or building a separate offense, and prescribe penalties therefor; and define fireproof material and by ordinance provide for issuing building permits, and appointment of building inspectors.”

Counsel for respondent argues from this comparison that, not only was no power to create fire districts granted to villages, but the power was purposely and intentionally omitted. He argues that in a city permanency of location is practically guaranteed, and that property owners will be justified in constructing expensive buildings, and that the opposite is true of villages; and not only this, but in villages the board of trustees may combine with the favored business men to exclude competition by confining its fire areas to those portions of the village owned by their would-be competitors.

Counsel for appellant, on the other hand, contends that: (1) A village has the inherent power to create such districts independently of any statutes. (2) That the power may be inferred from the provisions of subdivision 3 of section 3861 of the Compiled Laws of 1913, which grants to the board of trustees the power to “establish other measures of prudence for the prevention or extinguishment of fires as it shall deem proper.”

[5] We agree with counsel for respondent that, since the cities and villages of North Dakota are creatures of the statute and of the statute alone, they have no inherent powers, but such only as the Legislature has granted to them either in their charters or in the general acts under which they have been incorporated, together with such other powers as are necessarily implied from or incident to those expressly granted or which are indispensable to the declared objects and purposes of their creation. See 19 R. C. L. 768; City of Charleston v. Reed, 27 W. Va. 681, 55 Am. Rep. 336.

We are, however, none the less satisfied that the words, “to establish other means of prudence for the prevention or extinguishment of fires as it shall deem proper,” necessarily imply, or rather expressly grant, the power to create fire districts.

It is not necessary for us to hold that the creation of a fire district belongs to any particular one of the classes or subjects before enumerated in the section, though there is much in support of this proposition. The case, indeed, is not one of an express enumeration followed by general words in a restrictive or penal act, as where certain acts or things or games or pursuits are made unlawful and other similar acts or...