Wasem v. City of Fargo

• Decision Date: 01 November 1922
• Citation: 49 N.D. 168,190 N.W. 546
• Parties: WASEM v. CITY OF FARGO et al.
• Court: North Dakota Supreme Court

49 N.D. 168

190 N.W. 546

WASEM

v.CITY OF FARGO et al.

Supreme Court of North Dakota.

Nov. 1, 1922.

Syllabus by the Court.

An ordinance which provides that no undertaking establishment shall be established or maintained within those parts of the city occupied mainly for residences is indefinite and uncertain, and therefore invalid.

Appeal from District Court, Cass County; Cooley, Judge.

Action by Ben F. Wasem against the City of Fargo, a municipal corporation of the State of North Dakota, and others, to restrain the enforcement of an ordinance. Judgment for plaintiff, and defendants appeal. Affirmed.

Robinson, J., dissenting.W. H. Shure, City Atty., of Fargo (Chas. A. & Chas. M. Pollock and B. F. Spalding, all of Fargo of counsel), for appellants.

Lawrence, Murphy & Niles, of Fargo, for respondent.

Statement.

BRONSON, J.

This is an action to enjoin enforcement of an ordinance. Defendants have appealed from decree of injunction determining the ordinance to be void. The facts are: For some 21 years in Fargo plaintiff has been engaged in the undertaking business. In April, 1919, he negotiated for the purchase of 4 1/2 lots in block 32 of the original town site of Fargo for the purpose of conducting there his business and erecting a building therefor. On May 1, 1919, a deed was issued. About May 5, 1919, plaintiff made a contract for the excavation work for the building. Certain resident citizens of Fargo protested to him and to the city commission against such location of the business. A petition was presented to the city council requesting an ordinance to be enacted which would prohibit the building and maintaining of a morgue in portions of the city occupied mainly for residences. On May 7, 1919, petitions were received by the city commission. On May 8, 1919, an ordinance was introduced and read. It provided (section 1):

“That it shall be unlawful for any person, firm, or corporation to build, establish, operate, or maintain within those parts of the city of Fargo occupied mainly for residences, any morgue, undertaking parlors, room, or place used solely or mainly for the purpose of embalming, preserving, or caring for the dead; or any chapel or room used solely or mainly for funeral purposes.”

On May 16, 1919, this ordinance was amended by providing:

“No permit shall be granted to erect or maintain within the limits above provided, any morgue, undertaking parlors, or room or place used solely or mainly for purposes mentioned in Section 1 hereof; and if any such permit has been heretofore issued the same shall be and is hereby revoked and canceled.”

The amended ordinance was then adopted. By its terms it provided that it should take effect and be in force 10 days from and after its passage and publication. The ordinance was published May 17 and 20, 1919. Plaintiff was present at one of the meetings of the city council. He knew about the ordinance.In the meantime the work of excavation proceeded. Plaintiff made a contract to erect the building. On May 17, 1919, he secured from the city's superintendent of buildings a permit to build upon the premises a building to be used as a morgue. On October 26, 1919, plaintiff was arrested for violation of the ordinance. Upon trial before the police magistrate he was convicted and fined $100. Plaintiff appealed from the judgment of conviction. Later, in the district court, upon trial of such appeal, the jury disagreed.

Meantime the construction of the funeral home progressed to completion, and about October 1, 1919, plaintiff started to use the same as a morgue and to conduct his entire business there. Since that time he has so used the premises. On March 10, 1920, this action was started and a temporary order secured enjoining the city officials from enforcing the ordinance. The complaint alleges, among other grounds, that the ordinance is invalid, because indefinite and uncertain, and that plaintiff is threatened with actions and with arrest from day to day, while such mortuary is so maintained by him.

At the trial the inquiry was directed specifically to the legality of the ordinance. Defendants introduced a plat of the city of Fargo. Defendants offered to prove through two witnesses that all that part of the city of Fargo south of First Avenue South (wherein the mortuary is located) has since the organization of the city been occupied mainly for residence purposes; that, likewise, the portion of the city north of Sixth Avenue North has been occupied mainly for residence purposes; that the business portion of the city lies generally in the territory between the Northern Pacific Railway and the Great Northern Railway (south and north, respectively, of the residence portions). This offer was rejected upon the grounds that plaintiff sought injunctional relief based upon the invalidity of the ordinance.

Hon. Chas. N. Cooley, district judge, found that for more than 12 years plaintiff had been engaged in Fargo in the lawful business of maintaining an undertaking establishment; that on April 5, 1919, plaintiff negotiated for the real estate in block 32; that he began active work on May 8, 1919, to erect and construct a mortuary thereon; that plaintiff has expended about $25,000; that the mortuary chapel cost about $15,000; that the ordinance became effective on June 1, 1919; that the work of construction proceeded for a period of nearly 3 months before any attempt was made to enforce this ordinance; that, before the enactment of the ordinance, a building permit was given to plaintiff for the erection of such mortuary in accordance with the approved plans and specifications, which permit had never been revoked; that plaintiff has been threatened with a multiplicity of suits and prosecutions under the ordinance which require injunctional relief; that the ordinance is illegal and void for uncertainty; that it is incapable of valid enforcement because of the indefinite and uncertain territory within which the same purports to be operative. Accordingly the ordinance was held void, and a judgment to prevent its enforcement was entered.

Decision.

The only question requiring consideration is whether the ordinance is indefinite and uncertain, and therefore invalid.

The city possesses the power to regulate the establishment and maintenance of undertaking establishments and to prescribe the limits within which they may be operated. Section 3818, C. L. 1913, subds. 52, 54, 75. The express statutory authority is conferred upon the city to regulate the location of undertaking establishments. Paragraph 75, supra. The city of Fargo has sought to exercise this authority. By the ordinance it declares, in effect, that undertaking establishments are nuisances per se if located and maintained within those parts of the city occupied mainly for residences.

The business of undertaking, which theretofore was wholly a lawful business conducted anywhere within the city limits still remains a lawful business where it is not conducted in a place prohibited by the ordinance.

But since the ordinance became effective, how may an owner of an undertaking establishment, desirous of obeying the law, determine whether his location now is, or yesterday was, in a lawful or unlawful place? For the test of the validity of the ordinance depends upon its universality; its universal application in determining a definite and certain restricted location. In this case the test of the validity of the ordinance is not made dependent upon proof that within a certain designated area wherein the mortuary is located the properties are either mainly or wholly occupied for residences. No proof has been presented in that regard.

In determining the “parts occupied mainly for residences,” what portion of the city around the locus in quo shall be included? What portion excluded? How much of a portion in extent, in length, in width, may be considered? What measure or rule is furnished by the ordinance through which...