No. 15,714 | Neb. | May 21, 1909
Plaintiffs seek to enjoin the defendant city from enforcing certain ordinances which prohibit the use of sidewalk space in the city for the sale of fruits, books or other merchandise, and the erection or maintenance upon such sidewalk of any booth, shed, stand or other obstruction. A temporary injunction was issued, which, upon final hearing, was dissolved and plaintiffs’ suit dismissed. Plaintiffs appeal.
•The stipulation of facts upon which the case was tried and decided in the court below fairly reflects the issues. It stipulates that the. principal defendant, the city of Lincoln, is a city of the first class, having more than 40,000 and less than 100,000 inhabitants, and is governed by chapter 13, art. I, Comp. St. 1907; that the defendants Brown, Cooper, and Strode, are the mayor, chief of police and city attorney, respectively, of the city; that plaintiffs are all residents of defendant city, and now are, and for a long time past have been, engaged in lawful business and mercantile pursuits therein; that plaintiff Chapman
“Be it ordained by the mayor and council of the city of Lincoln, Nebraska. Section 1. That said section one of the above named ordinance be and it is hereby amended to read as follows: It shall be unlawful for any person, persons or corporation to erect or maintain any booth, shed, stand or other obstruction upon the streets, sidewalks or sidewalk space of the city of Lincoln for the sale of fruit, books or other merchandise, or any article or thing of value,- or to erect or maintain any shed or booth or stand thereon to be used for shining boots and shoes: Provided, that this section shall not apply to wagons maintained for the sale of popcorn; and provided, that the city clerk may grant a permit to the owner of such popcorn wagons to maintain the same at a place designated for a period not exceeding one year from the date thereof, when an application for the same is- presented to him with the consent in writing of the owner and occupant of the property immediately abutting upon said location. Section 2. That sections one and two of the above entitled ordinance be and the same are hereby repealed. Section 3. ■ This ordinance shall take effect and be in force from and after its passage, approval and publication according to law. But this ordinance shall not affect the term of any license or permit heretofore granted*539 and now in force, during tlie length of time therein named.”
That plaintiffs had long prior to the passage of said ordinance been granted permits for a specified period of time by the city under an ordinance theretofore regularly passed, providing for the granting of such permits to use and occupy the portions of the sidewalk space in the streets occupied by them as stated, but said time for which said permits had been granted had expired before the 28th day of November, 1906, and each of the plaintiffs had continued his business without let or hindrance from the defendants or any one of them until the passage of the aforesaid ordinance on the 26th day of November, 1906, and until the time for which permits which had been granted had expired; that defendants threaten to and will, unless enjoined by this court, close the place of business of each of the plaintiffs and prohibit the further continuance thereof, and will prosecute divers and sundry complaints against the plaintiffs and each one of them to enforce fines and penalties, and will tear down and remove the property of each one of plaintiffs under the command and by the authority of said last mentioned ordinance; that the sidewalks at all places where plaintiffs occupy any part thereof are 25 feet in width.
In addition to the stipulation, plaintiffs introduced in evidence paragraph 1290 on page 354 of the “Revised Ordinances of Lincoln, 1895,” which ordinance, so far as the same is applicable to the controversy here, is the same as the ordinance of September 20, 1904, set out in the stipulation of facts, except that the latter ordinance, which is admitted to be an amendment of the former, changes the distance from the lot line for which the sidewalk space may be used for any of the purposes set out from three and five feet, respectively, to four feet. Under the above stipulation it will be seen that each of the plaintiffs is occupying five feet of the sidewalk space for the purposes mentioned, which is in direct violation of the ordinance of September 20, 1904, which only permits the
Plaintiffs’ petition contains a number of other allegations to the effect that the ordinance of November 20 is aimed specially at the plaintiffs, for the purpose of driving them out of business; and that defendant city has no intention of having said ordinance applied to the other business men of the city who are occupying sidewalk space for display of their goods; and assailing the manner in which the ordinance was passed. As the bill of exceptions contains no proof of any of these matters, we will treat them as having been abandoned, and consider the case upon the facts as set out in the stipulation above referred to.
Section , 96, cli. 13, art.' I, Comp. St. 1907, provides: “The mayor and council shall have supervision and control of all public ways and public grounds, within the city and shall require the same to be kept open, in repair and free from nuisances.” Subdivision 6, sec. 129, provides that it is the duty of the city: “To remove all obstructions from the sidewalk, curbstones, gutters and crosswalks at the expense of the owners or occupiers of the grounds fronting thereon, or at the expense of the person placing the same there, and to regulate the building of bulkheads, cellars and basement ways, stairways, railways, window and doorways, awnings, hitching posts and rails, lamp posts, awning posts, and all other structures upon or over adjoining excavations through or under the sidewalks of the city.”
Reading these two sections from the statute in reverse order, it will be seen that the city has power to remove all obstructions from the sidewalks, and that it is required so to do. The city cannot enlarge the power thus granted, nor evade the duty imposed. Hence it is not within the power of the city to grant any privileges for the use and obstruction of its streets and sidewalks in contravention of the power granted it by statute. In Bischof v. Merchants Nat. Bank, 75 Neb. 838" court="Neb." date_filed="1906-02-22" href="https://app.midpage.ai/document/bischof-v-merchants-national-bank-6656733?utm_source=webapp" opinion_id="6656733">75 Neb. 838, we adopted
Moreover, the contention of plaintiffs that the city is permitting a large number of other merchants to make a like use of the sidewalks is not sustained by the stipulation of facts. From that stipulation we learn that the other merchants referred to are using a portion of the sidewalk space only for the display of their goods; that is to say, they are displaying upon the sidewalks samples of the goods they are selling in their respective stores, while plaintiffs are converting the sidewalks into a market place for crying out and selling their goods and merchandise. Because the city has, perhaps illegally,' seen fit to allow its merchants to display upon the walk in front of their stores samples of the goods for sale within, it does not follow that it was ever the intention of the city that such merchants could convert the sidewalk space, set apart for the use of the public, into a source of monthly revenue by subletting it to other merchants of whatever class for the transaction of another and different kind of business from that which was being carried on in the abutting store.
We do not think the ordinance of November 26, 1906, which is so vigorously assailed by plaintiffs, will bear the construction which they place upon it. As we read the ordinance, it applies to all persons or corporations, and prohibits them from erecting or maintaining any booth, shed, stand, or other obstruction upon the streets, sidewalks, or sidewalk space, not only for the sale of fruit and books, but for the sale of “any other merchandise,
In addition to what has been said, it appears from the stipulation that the passage of the ordinance of November 26 was designed by the city to put a stop to the unlawful use which had theretofore been made of its sidewalks; that prior thereto plaintiffs had been granted permits for specified periods of time by the city council under an ordinance theretofore passed by the city council providing for the granting of permits to use and ■occupy the portions of the sideAvalk space; but that “such time for Avhich said permits had been granted had expired, before the 28th day of November, 1906.” If, therefore, it could be conceded that the city had power to grant such permits prior to November 28, 1906, it is' established by the record that it refused to grant any thereafter. This was clearly within its power. It being conceded that plaintiffs’ right to use the sidewalk space was merely a permissóry right, the moment the permission was withdrawn the right ceased; for it needs neither argument nor citation of authority to show that one who has the power to grant permission to do a certain thing, and grants it for a definite time, may, at the end of that time, refuse to extend the permission.
It would seem useless to pursue this subject further. Viewed from any standpoint, the judgment of the district court is right and it is
Affirmed.