Williams v. City of Fargo

• Decision Date: 14 January 1933
• Docket Number: 6070
• Court: North Dakota Supreme Court

247 N.W. 46

63 N.D. 183

MARIE R. WILLIAMS, Appellant, v. CITY OF FARGO, a Municipal Corporation, Respondent

No. 6070

Supreme Court of North Dakota

January 14, 1933

Rehearing Denied March 6, 1933.

Appeal from the District Court of Cass County, Englert, J.

Affirmed.

M A. Hildreth, for appellant.

The difference between a motion to order a nonsuit of the plaintiff and a motion to direct a verdict for the defendant is rather a matter of form than of substance, except that in case of a nonsuit a new action may be brought, whereas in the case of a verdict the action is ended, unless a new trial be granted, either upon motion or upon appeal. Oscanyan v Winchester Repeating Arms Co. 103 U.S. 261, 26 L. ed 539; Central Transp. Co. v. Pullman's Palace Car Co. 139 U.S. 24, 35 L. ed. 55.

A municipal corporation is wholly liable for the trespass and wrongful acts of its officers where the act was expressly authorized by the governing body of the corporation, or where, without special authority, it was done by its officers in the scope of their duties and employment, and has been ratified by the corporation. Dillon, Mun. Corp. 5th ed. § 1652; People ex rel. v. Union Gas & E. Co. 254 Ill. 395, 98 N.E. 768; El Reno v. Cleveland, 27 L.R.A.(N.S.) 650; Blakemore v. Lewelling, 281 F. 952; Carthage v. Frederick, 10 L.R.A. 178; Crayton v. Larabee, L.R.A.1918E, 432.

A property owner may, upon an attempt by a municipal corporation to apply a street opening ordinance to the injury of his property rights, show, if possible, that its passage was obtained by fraud or other unlawful means, or for an unlawful purpose. Kansas City v. Hyde, 196 Mo. 498, 7 L.R.A.(N.S.) 630.

The measure of damages is the difference between the value of the property before the proceedings instituted by the city and its value afterwards. 13 R.C.L. 46; Henderson v. Lexington (Ky.) 22 L.R.A. (N.S.) 20.

The city cannot destroy property and get behind the acts of its officers and plead that they lack the power to destroy and therefore defeat justice. Noonan v. Albany, 79 N.Y. 471.

The measure of damages is the depreciation in the value of the property. Chicago v. Taylor, 125 U.S. 161, 31 L. ed. 638; Osgood v. Chicago, 154 Ill. 194, 41 N.E. 40; 8 R.C.L. 480; Jones v. Erie & W.R. Co. 17 L.R.A. 759.

It is not necessary that the damage shall be caused by a trespass or an actual physical invasion of the owner's real estate, but if the construction of the improvement is the cause of the damage, though consequential, the party may recover. Chicago v. Taylor, supra; Freund, Police Powers, Constitutional Rights and Public Policy, 543, paras. 509 and 510; Story v. N.Y. Elev. Ry. Co. 90 N.Y. 122; Mason City & Ft. Dodge R. Co. v. Wolf (C.C.A.) 148 F. 961; Jacobs v. Seattle (Wash.) 160 P. 299, L.R.A.1917B, 329; Grand Rapids Broom Co. v. Jarvis, 30 Mich. 308; Dickerson v. Okolona (Ark.) 135 S.W. 863, 36 L.R.A.(N.S.) 1194; Louisville & M.T. Co. v. Lellyett, 1 L.R.A. (N.S.) 49; Carthage v. Frederick, 122 N.Y. 268; New Orleans Waterworks Co. v. New Orleans, 164 U.S. 471; Helland v. Lowell, 3 Allen (Mass.) 407; State ex rel. v. Stahlem, 94 S.E. 497, L.R.A.1918C, 77; Val Fruth v. Board of Affairs, 84 S.E. 105, L.R.A.1915C, 981; Donovan v. Allert, 11 N.D. 289, 91 N.W. 441; Cosgriff v. Tri-state T. & T. Co. 15 N.D. 210, 107 N.W. 525; Aldes v. Union Elevator Co. 203 Ill. 567, 68 N.E. 95; Choctaw R. Co. v. True, 80 S.W. 120; McQuaid v. Portland, 18 Or. 237, 27 P. 899; Campbell v. Metropolitan Street R. Co. 82 Ga. 320, 9 S.E. 1070; Griffin v. Shreveport & A.R. Co. 41 La. 808, 6 So. 624; 40 Am. & Eng. Ry. Cas. 295; Montgomery v. Townsend, 84 A. 478; Frankel v. Jackson, 30 F. 398.

Private property shall not be taken for public use without just compensation. Fifth Amendment U.S. Const.; Norwood v. Baker, 172 U.S. 269; Smyth v. Ames, 169 U.S. 466; San Diego Light Co. v. Nat. City, 174 U.S. 739.

When a city attempts under the law of eminent domain to interfere with property rights it cannot fall back on the doctrine of police power, because police power, in its broadest terms, has never been permitted to take property for street purposes without just compensation to the owner for damages. Erie County v. Friedenberg, 221 N.Y. 389; Litchfield v. Pond, 186 N.Y. 66; People v. N.Y.C. & H.R.R. Co. 206 N.Y. 274.

The right of an individual to the occupation and enjoyment of his premises is exclusive and public authorities have no more right to trespass upon it than has a private individual. Ashley v. City of Port Huron, 35 Mich. 296; Haggard v. Independent School District, 85 N.W. 777; Swift v. Brogles, 58 L.R.A. 390.

M. W. Murphy, for respondent.

The creation of streets and the regulation of building lines is an exercise of the police power. McQuillin on Municipal Corporations, § 1016; Ashley v. Ashley Lumber Co. 40 N.D. 515, 169 N.W. 87; State ex rel. Sale v. Stahlman, 81 W.Va. 335; Shreveport v. Ducis, 150 La. 911, 91 So. 294; McCrae v. Chicago, 292 Ill. 60, 126 N.E. 557.

The police power belongs exclusively to sovereignty and inheres in the state without reservation in the Constitution and is given expression by the legislature. Texas v. New Orleans R. Co. 221 U.S. 746, 28 L. ed. 789; Northern Pacific R. Co. v. Duluth, 208 U.S. 583, 52 L. ed. 630; St. Paul R. Co. v. Minnesota, 214 U.S. 493, 53 L. ed. 1060; Milwaukee v. Railroad Commission, 162 Wis. 127, 155 N.W. 948; Chicago & Milwaukee Ry. Co. v. Milwaukee, 97 Wis. 418, 72 N.W. 1118.

The inhibitions of the Constitution of the United States upon the impairment of the obligation of contracts, or the deprivation of property without due process, or the equal protection of the laws, by the states, are not violated by the legitimate exercise of legislative power in securing the public safety, health and morals. New York & N.E.R. Co. v. Bristol, 151 U.S. 556, 38 L. ed. 269.

The state cannot divest itself of the police power. N.P.Ry. Co. v. Duluth, 208 U.S. 583, 52 L. ed. 630.

Since the state cannot divest itself of the police power so when it is delegated to a city the latter is a creature of the state and cannot divest itself of any such power either by contract or otherwise, nor limit nor restrain in any manner the exercise of this power in the advancement of the general welfare. Paduca v. R. Co. 261 U.S. 267; Kansas City Gunning Advertising Co. v. Kansas City, 240 Mo. 659, 144 S.W. 1099; Chicago v. O'Connell, 278 Ill. 591, 116 N.E. 210; Ex parte Kinney (Cal.) 200 P. 966; Pearson v. Tuhey, 113 Ore. 230, 231 P. 129; St. Paul v. Ry. Co. 139 Minn. 322, 166 N.W. 335; Helena Light Co. v. Helena, 47 Mont. 18, 130 P. 446; Chicago v. Penn. Ry. Co. 252 Ill. 185, 96 N.E. 833.

A city can exercise only such powers as are delegated to it by the legislature and all persons dealing with the city are imputed with notice of its limited authority. Roberts v. Fargo, 10 N.D. 230, 86 N.W. 726; Hart v. Wyndmere, 21 N.D. 383, 131 N.W. 271.

To sustain a building ordinance it must be subject to a uniform rule of action and cannot depend upon the arbitrary decision of the city authorities. 4 R.C.L. 395; Quentini v. Board of Aldermen (Miss.) 60 Am. Rep. 65; City Council v. Protective Asso. (Col.) 230 P. 600.

Towns and cities cannot use their power to create monopolies for the benefit of private individuals, nor can they pass laws imposing penalties that do not operate equally upon all citizens of the state who come to live within the corporate limits. State v. Pendergast, 106 N.C. 667; Newton v. Bolser, 143 Mass. 598.

A city is not liable in tort for the manner in which it exercises its discretionary or legislative powers. 2 Dillon, Mun. Corp. § 949; 1 Beach, Pub. Corp. § 258; Duke v. Mayor, 20 Ga. 635; Hassock v. Thurston, 43 R.I. 47, 10 A. 94; Metzroth v. New York, 208 N.Y.S. 774; McGinnis v. Medway, 176 Mass. 67, 57 N.E. 210; Hennessey v. New Bedford, 153 Mass. 260, 26 N.E. 999; Campbell Lumber Co. v. Levee Dist. 186 Mo.App. 371, 172 S.W. 64; Ettore v. Tacoma, 77 Wash. 267, 137 P. 820; L'Hiuler v. Fitchburg, 246 Mass. 349, 141 N.E. 122; Stern v. Spokane, 73 Wash. 118, 131 P. 476; Indianapolis v. Williams, 58 Ind.App. 447, 108 N.E. 387.

C. L. Young, amicus curiae.

The limitation as to eminent domain is only intended to operate on the exercise of the legislative power where property is taken for objects of general necessity or convenience, such as roads, canals, and public buildings and public works of all kinds. Sedgwick, Stat. & Const. Law, p. 499.

The distinction between the police power and that of eminent domain is radical. Under the police power, the public welfare is promoted by regulating and restricting the use and the enjoyment of property by the owner. Under eminent domain, the public welfare is promoted, by taking the property from the owner and appropriating it to some particular use. Worthington, Public Health & Safety, § 18; Mugler v. Kansas, 123 U.S. 661, 31 L. ed. 205; Lochner v. New York, 198 U.S. 45, 49 L. ed. 937.

Uncompensated obedience to a regulation enacted for the public safety under the police power of the state is not taking property without due process and that the constitutional prohibition against the taking of private property without compensation is not intended as a limitation of the exercise of those police powers which are necessary to the tranquillity of every well-ordered community, nor of that general power over private property which is necessary for the orderly existence of all governments. Chicago & B.R.R. Co. v. Illinois, 200 U.S. 561, 50 L. ed. 596; Hadachek v. Los Angeles, 239 U.S. 394, 60 L. ed. 348.

The police power may be put forth in aid of what is sanctioned by usage or held by the prevailing morality or strong and preponderant opinion to be greatly and immediately necessary to the public...