Village of Ashley v. Ashley Lumber Co.
| Decision Date | 05 August 1918 |
| Docket Number | 1915 |
| Citation | 169 N.W. 87,40 N.D. 515 |
| Court | North Dakota Supreme Court |
Rehearing denied September 25, 1918.
Action to compel the removal of a frame building constructed in violation of a village ordinance.
Appeal from the District Court of McIntosh County, Honorable Frank P. Allen, Judge.
Judgment for defendant. Plaintiff appeals.
Reversed.
Reversed and remanded with directions.
M. J George and W. S. Lauder, for appellant.
A municipal corporation, either city or village, possesses without special authorization, the inherent power to establish by proper ordinances, fire limits within its borders, and to prosecute actions for the removal of buildings constructed in violation of such ordinances. 2 Dill. Mun. Corp. 5th ed. § 727; 28 Cyc. 741 et seq.; 13 Am. & Eng. Enc. Law, 2d ed. 396.
But here such power has been conferred by statute. Comp. Laws 1913, § 3599, subds. 46 and 47; § 3861, subd. 2.
"No one at this time doubts the power of the legislature to prohibit the erection of wooden buildings within the limits of a city or borough, nor tat the legislature may confer the same power upon municipal corporations such as cities and boroughs." Klinger v. Bickel, 117 Pa. 326; Com. v. Tewksbury, 11 Met. 58; Olympia v. Mann, 12 L.R.A. 150 and note, 1 Wash. 389; Mt. Vernon First Nat. Bank v. Sarlls (Ind.) 13 L.R.A. 481, and note.
A village, like every other municipality, is an agency established by law for the convenient government of the people residing therein.
"The municipality is regarded as the representative of the public for the purpose of maintaining suits in equity or at law for the vindication of the public rights, hence the city was a proper party in this action." LaMoure v. Lasell, 26 N.D. 638, 647; Lee v. Harris, 206 Ill. 428; Methodist Episcopal Church v. Hoboken, 33 N.J.L. 13; California v. Howard, 78 Mo. 88.
A building erected within a fire limit in violation of a valid ordinance may be summarily removed by authority of the city. Wadleigh v. Gilman, 23 Me. 403; Baumgartner v. Hasty, 100 Ind. 575; King v. Davenport, 98 Ill. 305.
This may be done without judicial proceedings. Lemmon v. Guthrie, 113 Iowa 36; Eichenlaub v. St. Joseph, 113 Mo. 395; Hine v. New Haven, 40 Conn. 478; King v. Davenport, 98 Iowa 305; Baumgartner v. Hasty, 100 Ind. 575; Klingler v. Bickel, 117 Pa. 328; McKibben v. Ft. Smith, 35 Ark. 352.
The ordinance here involved is a necessary, fair, and reasonable regulation. Olympia v. Mann, supra.
Gannon & Ludwigs, for respondent.
Municipal corporations take the authority and powers which they possess from the legislature. They are inferior political subdivisions of the state, and have no other powers than those granted by the state. 1 Dill. Mun. Corp. 5th ed. § 236; Barnett v. Denison, 145 U.S. 135; Detroit v. R. Co., 171 U.S. 48; Treadway v. Schnauberl, 1 Dak. 227; Cooley, Const. Lim. §§ 192, 195; Kneedler v. Norristown, 100 Pa. 368, 45 Am. Rep. 383; Thompson v. Lee County, 3 Wall. 327; Minturn v. Larne, 23 How. 435; Willard v. Killingsworth, 8 Conn. 247; Bridgeport v. Housatonic R. Co., 15 Conn. 475.
Any doubt must be resolved against the corporation. Minturn v. Larne, 23 How. 435; Sutherland, Stat. Constr. § 380, and cases cited.
Restrictions on building or repairing wooden structures, called fire limits, are invasions of private rights and are to be strictly confined to their literal import. Sutherland, Stat. Constr. § 367; Booth v. State, 4 Conn. 65.
Such limitations and restrictions must not only be convenient, but they must reasonably appear to be indispensable. Dill. Mun. Corp. § 236, supra; Cooley, Const. Lim. 192, 195.
Do the statutes of this state confer the power on village boards to ordain the destruction or removal of wooden buildings erected within so-called fixed fire limits of the village?
In construing a statute it is an elementary principle that such general language as is used in this statute must be taken in connection with and limited by the special powers conferred. Keokuk v. Sorogs, 39 Iowa 447; Mt. Pleasant v. Breeze, 11 Iowa 339; St. Louis v. Laughlin, 49 Mo. 599; Comp. Laws 1913, § 3861, subd. 3; Des Moines v. Gilchrist, 67 Iowa 210; Pratt v. Litchfield, 62 Conn. 112.
The power must be expressly given, either by statute or by the charter. Olympia v. Mann (Wash.) 12 L.R.A. 150; 28 Cyc. 260 to 266.
2 McQuillin, Mun. Corp. § 732.
A municipality has no inherent power to establish fire limits. State v. Schuchardt, 42 La.Ann. 49; Hudson v. Thorn, 7 Paige, 261; Rye v. Peterson, 45 Tex. 315, 23 Am. Rep. 608; Kneedler v. Norristown, 100 Pa. 368, 45 Am. Rep. 383.
If this village had the power to pass such an ordinance, was its passage such a fair and reasonable exercise of the power as the law requires? Ordinances which are partial or unfair, or which discriminate in favor of one class against another, are invalid, and if they seem to the court oppressive, unfair, partial, or discriminating, they are declared unreasonable and void whether this appear from their face, or from proof aliunde. 28 Cyc. 369-370 and cases cited; 3 McQuillin, Mun. Corp. pp. 2066, 2071, and notes on 2072; Richmond v. Dudley (Ind.) 13 L.R.A. 586 and note; Janesville v. Carpenter, 77 Wis. 288, 20 Am. St. Rep. 123; N.D. Const. § 20; Lake View v. Tate (Ill.) 6 L.R.A. 268 and note.
The question of the reasonableness or fairness of an ordinance is for the court. Hawse v. Chicago (Ill.) 30 L.R.A. 225; Chicago v. Rumpff (Ill.) 92 Am. Dec. 196; Cicero Lumber Co. v. Cicero, 42 L.R.A. 696; Sioux Falls v. Kirby, 6 S.D. 66, 25 L.R.A. 621.
In determining this question, the size, conditions of, and circumstances of, a village are to be considered. Olympia v. Mann, 12 L.R.A. 155; State v. Tenant, 15 L.R.A. 423.
This action is brought for a final injunction, and the time when such an injunction may be granted is fixed by statute, and this statute is the only authority for such action, and plaintiff cannot proceed under any so-called common-law right. Civ. Code, §§ 7213, 7228, 7229, 7312 and 7331.
Equity will not lend its aid to enforce by injunction the by-laws or ordinances of a municipal corporation, restraining an act, unless the act is shown to be a nuisance per se. Coast v. Spring Lake, 51 L.R.A. 657 and note; 2 Dill. Mun. Corp. 5th ed. § 650; St. Johns v. McFarlan, 33 Mich. 72, 23 Am. Rep. 671; Waupun v. Moore, 34 Wis. 450, 17 Am. Rep. 446; Finnegan v. Allen, 46 Ill.App. 553; 2 McQuillin, Mun. Corp. § 806; High, Inj. § 788, 4th ed. 748; Hudson v. Thorn, 7 Paige, 261; Phillips v. Allen, 41 Pa. 481; Eden, Inj. 160; Schuster v. Board of Health, 49 Barb. 450; Grant, Corp. 84; Lake View v. Letz, 44 Ill. 81; Ottumwa v. Chinn (Iowa) 39 N.W. 670; Manchester v. Smythe, 64 N.H. 380, 10 A. 700; Ogden v. Weldon, 40 N.Y.S. R. 235; Honesdale v. Weaver, 2 Pa. Dist. R. 344; Williamsport v. McFadden, 15 N.C. 269; Ellwood City v. Mani, 16 Pa. Co. Ct. 474; Redwing v. Guptil (Minn.) 41 L.R.A. 321 and note 328; Bangs v. Dworak (Neb.) 106 N.W. 780; 2 Dill. Mun. Corp. 5th ed. 1107 note; Janesville v. Carpenter, 77 Wis. 288, 20 Am. St. Rep. 123; New Rochelle v. Lang, 75 Hun, 608, 27 N.Y.S. 600; Griener Kellog Drug Co. v. Truett, 97 Tex. 377, 79 S.W. 4; Kissinger v. Hay, 52 Tex. Civ. App. 295, 113 S.W. 1005.
The power to declare what shall be a nuisance does not authorize a village to declare that a nuisance which is not such in fact. Yate v. Milwaukee, 10 Wall. 497; 2 Dill. Mun. Corp. 5th ed. § 684, and cases cited; Lake v. Aberdeen, 57 Miss. 260; Rye v. Peterson, 23 Am. Rep. 608; Ward v. Little Rock, 48 Am. Rep. 46; Dill. Mun. Corp. 3d ed. § 374; High, Inj.; Orlando v. Pragg (Fla.) 19 L.R.A. 196; Evansville v. Miller (Ind.) 38 L.R.A. 161; Mt. Vernon Bank v. Sarlls, 13 L.R.A. 481; Grossman v. Oakland (Ore.) 36 L.R.A. 593 and note; Hattenbach v. New York C. & H. R. R. Co., 18 Hun, 123.
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 equity will take cognizance, since the remedies afforded by the courts of law are adequate to the situation.
The only express grant of power, as far as villages are concerned, seems to be contained, if contained at all, in P 3 of § 3861, Compiled Laws 1913, which provides that:
"The boards of trust...
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