193 Iowa 1096 | Iowa | 1921
Lead Opinion
The defendants deny the constitutional validity of the statute above cited, as well as of the city ordinance purporting to establish the restricted district, and deny that the maintenance and operation of the proposed station will create a nuisance. Other matters are pleaded, which will have our attention in the progress of this opinion.
Before the cause came on for trial, the Cottage Grove Avenue Presbyterian Church, together with several other owners of property in the district, intervened, and united with the plaintiff in its prayer for an injunction. There was a trial to the court, which found for the defendants and dismissed the petition, and plaintiff appeals.
It appears without controversy that, on or about September 8, 1919, a movement was begun by resident property owners
“An Ordinance Designating and Establishing a Restricted Residence District, and Providing a Penalty For the Violation Thereof. Whereas, the general assembly of the state of Iowa has authorized cities under the commission form of government, upon petition of sixty (60) per cent of the owners of real estate in a given district residing in said city, to establish restricted residence districts; and, whereas, on the 10th day of September, 1919, a petition with the requisite number of signers was duly filed with the city clerk and presented to the city council, asking that certain territory between Kingman Boulevard and School Streets on the north and south, and between Twenty-fourth and Twenty-fifth Streets on the east and west, be established as a restricted residence district; now, therefore, be it ordained by the city council of the city of Des Moines:
*1100 “Section 1. That the block bounded on the north by King-man Boulevard, on the west by Twenty-fifth Street, on the south by School Street, and on the east by Twenty-fourth Street, be and the same is hereby designated and established as a restricted residence district.
“Section 2. That no buildings or other structures, except residences, schoolhouses, churches, and other similar structures shall be hereafter erected, reconstructed, altered, repaired, or occupied within said district without first securing from the city council a permit therefor; nor shall any such permit be granted when sixty (60) per cent)of the owners of real estate in said district residing in said city object thereto.
“Section 3. Any building or structure erected, altered, repaired, or used in violation of any of the provisions of this ordinance, is hereby declared to be a nuisance, and it is hereby made the duty of -the city prosecutor to prosecute all persons violating the provisions of this ordinance with respect to the erection, reconstruction, altering, repairing, or occupying any building or other structure in said district without a permit, and in all cases where the punishment by fine fails to abate the nuisance, he shall cause to be brought in the district court in and for Polk County an action for the abatement thereof. All such prosecutions shall be in the name of the city of Des Moines.
“Section 4. Any person, firm or corporation violating any of the provisions of this ordinance shall be guilty of misdemeanor, and upon conviction, shall be subject to a fine of not less than one dollar, nor more than one hundred dollars for each offense.”
There is no dispute concerning the facts thus far related. It further appears in evidence that, at the date of the application to the city council for the establishment of the restricted district, the area included therein was occupied and used exclusively for residence purposes, and was quite generally improved with substantial and comfortable homes. The corner lot in question is at an intersection, from which streets radiate in five directions. Over and upon these streets is a large amount of travel, and the street traffic at this point is often congested to a considerable degree, and collisions and accidents resulting
Plaintiffs also contend that the maintenance of the station and the carrying on of such business will serve to increase the congestion of travel and of vehicles at that point, and accentuate the noise and confusion of ordinary street traffic, to the disturbance of the inhabitants, as well as of the church congregations.
Other matters are mentioned in the testimony, but the foregoing is sufficient to indicate the nature of the controversy and to give point to the arguments of counsel on either side. The trial court found for the defendants, and dismissed the petition.
For the appellees, counsel have directed their principal argument to the proposition that the city ordinance establishing the restricted residence district and the statute purporting to authorize such action are void, as being in violation of the guaranties of the Constitution of our state and óf the Constitution of the United States. It is also contended that the city council, having once adopted a resolution granting a building permit, is without power or authority to rescind it.
III. We shall not undertake any comprehensive definition of the police power of the state. No such definition has yet been accomplished by any court, nor is it possible or desirable that it should be accomplished. With the changing conditions necessarily attendant upon the growth and density of population, and the ceaseless changes taking place in method and manlier of carrying on the multiplying lines of human industry, the demand becomes greater upon that reserve element of sovereignty which we call the police power, for such reasonable super-, vision and regulation as the state may impose, to insure observance by the individual citizen of the duty to use his property and exercise his rights and privileges with due regard to the personal and property rights and privileges of others. See Carr v. State, 175 Ind. 241 (93 N. E. 1071); State v. Mountain Timber Co., 75 Wash. 588. Such duty, even though it involves restriction upon the so-called natural rights of every individual, is the first and most imperative obligation entering into what we call the social compact. Without it there can be no such thing as organized society or civilized government. Naturally,
The power to designate the subject of police regulation rests in the state .alone; and if a given statute is not clearly repugnant to some constitutional guaranty, the courts are without power to interfere. Such interference, if tolerated at all, must be on the theory that the subject of the regulation is not within the legislative jurisdiction; or, if the subject be one within such jurisdiction, it must appear to the court that, looking through mere forms, and at the substance of the matter, it can say that the statute, enacted professedly in the interest of the publió or general welfare, “has no substantial relation to that object, but is a clear, unmistakable infringement of'rights secured by the fundamental law.” Booth v. Illinois, supra; Overton v. Harrington, 126 Md. 32 (94 Atl. 325). The legislature, acting within these limits, is the sole judge as to all matters pertaining to the public policy, wisdom, and expediency of the police regulations which it prescribes (State v. Armour Pkg. Co., 124 Iowa 323, 12 Corpus Juris 932); and while the police power is familiarly exercised in regulations to promote the public health and morals, it extends as well to the promotion of “public convenience and general prosperity.” Chicago, B. & Q. R. Co. v. People of Illinois, 200 U. S. 561, 592.
Bearing these principles in mind, we turn to the question
There are also many other Code provisions of the same general nature, but the foregoing are sufficient to indicate the breadth and character of the authority conferred upon our municipal corporations.
To these general powers, a recent legislature added the specific authority to cities to establish restricted residential districts. See Chapter 138, Acts of the Thirty-seventh General Assembly. This act, omitting the enacting and publication clauses, is in the following words:
“Section 1. Cities of the first class, including cities under commission form of government, and cities under special charter may, and upon petition of sixty per cent of the owners of the real estate in the district sought to be affected residing in*1106 such city shall designate and establish, by appropriate proceedings, restricted residence districts within its limits.
“Sec. 2. In the ordinance designating and establishing such restricted residence district, every such city is hereby empowered to provide and establish reasonable rules and regulations for the erection, reconstruction, altering and repairing of buildings of all kinds, within said district, as well as the use and occupancy of such buildings; and to provide that no building or other structure, except residences, schoolhouses, churches, and other similar structures shall thereafter be erected, altered or repaired, or occupied without first securing from the city council of such city a permit therefor, such permit to be issued under such reasonable rules and regulations as may in said ordinance be provided.
“Sec. 3. Any building or structure erected, altered, repaired or used in violation of any ordinance passed under the authority of this act, shall be deemed a nuisance, and every such city is hereby empowered to provide by ordinance for the abatement of such nuisance, either by fine or imprisonment, or by action in the district or municipal court of the county in which such city is located, or by both; such action to be prosecuted in the name of the city. ’ ’
Following this statute, the city council adopted the ordinance which we have already quoted in full. This ordinance (with a single possible exception, hereinafter noted) appears to be in reasonably strict accord with the provisions of the act, and its validity must be conceded, unless we are compelled to hold that the act itself is void. Counsel for the appellees very strongly urge the unconstitutional character of the act, because it is said to offend against the guaranties of our fundamental law, in that it operates to deprive the defendants of their liberty and property without due process of law; takes private property for public use without compensation; abridges the privileges and immunities of citizens of the United States, and denies them the equal protection of the laws; attempts to make legal the taking of private property for private use without compensation; and assumes to delegate legislative power to private persons. The questions thus raised are of grave im
“Neither the amendment, broad and comprehensive as it is, nor any other amendment, was designed to interfere with the power of the state, sometimes termed its police power, to prescribe regulations to promote the health, peace, morals, education, and g’ood order of the people, and to legislate so as to increase the industries of the state, develop its resources, and add to its wealth and prosperity.”
“Every citizen holds his property subject to the proper exercise of this power, either by the state legislature directly, or by public or municipal corporations to which the legislature may delegate it. * * * It is well settled that laws and regulations of this character, though they may disturb the enjoyment of individual rights, are not unconstitutional, though no provision is made for compensation for such disturbance.” 1 Dillon on Municipal Corporations (4th Ed.) 212.
See, also, Thorpe v. Rutland & B. R., Co., 27 Vt. 140; In re Goddard, 16 Pick. (Mass.) 504. In Commonwealth v. Alger, 7 Cush. (Mass.) 53, Chief Justice Shaw uses the language:
“We think it a settled principle, growing out of the nature of well ordered civil society, that every holder of property, however absolute and unqualified may be' his title, holds it under the implied liability that his use of it may be so regulated that it shall not be injurious to the equal enjoyment of others having an equal right to the enjoyment of their property, nor injurious to the rights of the community. * * * Rights of property, like all other social and conventional rights, are subject to such reasonable limitations in their enjoyment as shall prevent them from being injurious, and to such reasonable restraints and regulations established by law as the legislature, under the governing and controlling power vested in them by the Constitution, may think necessary and expedient. This is very different from the right of eminent domain.”
Along the same line, it has been said by the Maine court:
“Police regulations may forbid such a use and such modifications of private property as would prove injurious to the citizens generally. This is one of the benefits which we derive from associating in communities. It may sometimes occasion an inconvenience to an individual; but he has a compensation, in participating in the general advantage. Laws of this character are unquestionably within the scope of the legislative power, without impairing any constitutional provision. It does*1109 not appropriate private property to public uses, but merely regulates its enjoyment.” Wadleigh v. Gilman, 12 Me. 403.
Without further pursuing this phase of the case in hand, we think it must be said that the statute in question is not open to the objection that it takes or appropriates the property of the defendants to public use without compensation.
IY. Still less is the act open to the objection that it takes the private property of the defendants for the private use of others. As we have already said, it does not deprive the defendants of their property, or assume to give any right or interest therein to anyone. It does assume to regulate its use in the interest of the public; and unless it be found open to the objection that it is clearly unreasonable, and without any substantial relation to that subject, but is a clear and unmistakable infringement of some constitutional guaranty, it must be upheld. Its alleged unreasonable character will be considered in a later paragraph of this opinion. Nor is there merit in the further objection that it attempts to delegate legislative authority to private persons. While the right is conferred upon the inhabitants of a proposed district to initiate the project by petition to the city council, the power of the private citizen ends there. The legislation, if any is had, is by the council, which is the recognized legislative body of the municipal government.
A statute that no person shall hereafter erect, occupy, or use in any city a stable for more than four horses, unless first licensed to do so, is sustainable as an exercise of police power. City of Newton v. Joyce, 166 Mass. 83. An ordinance making it unlawful to move a blacksmith shop to a residence street, without the written consent of a majority of the property owners, is valid. Patterson v. Johnson, 214 Ill. 481 (73 N. E. 761). The court there says that cities and towns organized under the statute “have power to declare what shall be considered as nuisances, and to prevent and remove the same, and to regulate the police of the town, and to make such ordinances as the good of the inhabitants of the town may require.”
So, also, under general authority to a city to adopt appropriate ordinances and regulations, an ordinance prohibiting any person from erecting any building within the corporate limits
‘ ‘ The main purpose of the ordinance is to give the commissioners power to control the erection of new buildings, so that whenever such building, either by the character of the materials of which, or the manner in which, it is proposed to be built, its location in the town, or the character of the business proposed to be carried on therein, would, in their judgment, be detrimental to the town, they may prevent its erection by refusing a permit. In each case, the granting or refusal of a permit is confided to their discretion.”
The city may prohibit the blasting of rocks within its limits without the written consent of the board of aldermen. Commonwealth v. Parks, 155 Mass. 531. In this case, the language of Holmes, J., is in point, where he says:
“It is settled that, within constitutional limits not exactly determined, the legislature may change the common law as to nuisances, and may move the line either way, so as to make things nuisances which were not so, or to make things lawful which were nuisances, although by 'so doing it affects the use or value of property.”
See Reinman v. City of Little Rock, 237 U. S. 171. An ordinance prohibiting the operation of laundries during the night in a certain city district is not open to constitutional objection. Barbier v. Connolly, 113 U. S. 27. In Welch v. Swasey, 193 Mass. 364 (79 N. E. 745), the court had to consider a regulation limiting the height of buildings in the city of Boston. By its terms, a certain limit was fixed for buildings in one district, and a different limit in other districts; and this was held valid. On appeal to the Supreme Court of the United States, the ruling was affirmed. See Welch v. Swasey, 214 U. S. 91. To like effect is Cochran v. Preston, 108 Md. 220 (70 Atl. 113), sustaining a limitation upon the height of buildings in a residential neighborhood. The operation of a brickyard in an open field, the chief value of which is in the brick clay there found, may be prohibited by a city. Hadacheck v. Sebastian, 239 U. S. 394. The location of garages and the storing of oil and gasoline are
“The general assembly expressly conferred upon the city power to adopt the ordinance. All presumptions are in favor of its reasonableness, and such presumptions must prevail, nothing to the contrary appearing on the face of the ordinance or from the proofs.”
J7n People v. Village of Oak Park, 266 Ill. 365 (107 N. E. 636), an ordinance making it unlawful to build or maintain a public garage at any place in the city where two thirds of the buildings within a radius of 500 feet are used exclusively for residential purposes, without the written consent of a majority of the property owners within such radius, is held to be a valid exercise of municipal power. The same rule is sustained in City of Chicago v. Stratton, 162 Ill. 494, and in People v. Ericsson, 263 Ill. 368 (105 N. E. 315). To the same general effect is State v. Taulert, 126 Minn. 371 (148 N. W. 281). In City of Little Pock v. Reimnan-Wolfort A. L. Co., 107 Ark. 174, and same case on appeal to the Supreme Court of the United States, an ordinance prohibiting the maintenance of a livery stable in a certain part or district of the city was held open to no constitutional objection. The Supreme Court of Maine, answering an inquiry by the legislature, holds it within the police power of the state to regulate and restrict the cutting of trees on wild and uncultivated-land; without compensation to the owner. In re Opinions of Justices, 103 Me. 506 (69 Atl. 627). On like principle, the state may prohibit landowners from removing stones, gravel, or sand from their own premises, such .restriction being for the .public benefit, in protection of a harbor adjacent to such premises. Commonwealth v. Tewksbury, 11 Metc. (Mass.) 55. A somewhat similar holding is found in Commonwealth v. Alger, 7 Cush. (Mass.) 53. Further application of the principle is found in the more recent, but familiar,
It will be further noticed that the ordinance there set aside makes no provision whatever for the exercise of any supervision, discretion, or control of the subject by the city council, but makes the establishment of the line absolute and final, upon the action of the committee, which, in turn, has no discretion except to comply ivith the request of tAA^o thirds of the property OAvners, and fix the line somewhere AA'ithin the prescribed limits of 5 feet and 30 feet from the street boundary. The decision goes no further than to hold that this kind of regulation is not within the police power. In thus disposing of the case, the court is careful to say:
“We need not consider the power of a city to establish a building line or regulate the structure or height of buildings. ’ ’
Quite in point here is the case.of Storer v. Downey, 215 Mass. 273 (102 N. E. 321). There, the ordinance provided that no building should be erected or used as a garage unless such use was previously authorized by the board of aldermen. A peti
“Oil and gasoline, almost inevitably stored and used in them, are so highly inflammable and explosive that they may increase the danger of fire, no matter how carefully the building be constructed, nor how noncombustible its materials. Although lawful and necessary buildings, they are of such character that regulation of the place of their erection and use is within well settled principles as to the police power.”
The foregoing citations and quotations have perhaps been unnecessarily extended; but the question presented by this appeal is one of great and growing importance, and we have felt justified in noting the trend of the authorities with more than ordinary fullness of detail. With the wealth of precedent cited by the appellee as upholding the sacredness of constitutional guaranties of life, liberty, property, due process of law, and equal protection of the laws, we have no quarrel; but when the statute in question is construed, as we do, as one of police regulation, it is entirely consistent with those guaranties. The statute being constitutional, the ordinance adopted pursuant thereto cannot be held invalid. The power of regulation is not confined to the suppression of vice or promotion of health. In the language of McKenna, J., in Bacon v. Walker, 204 U. S. 311, 318:
“It extends to so dealing with the conditions which exist in the state as to bring out of them the greatest welfare of its people.”
For a discussion of the nature, scope, and effect of a city’s authority to “regulate,” see opinion by Marshall, J., in City of Madison v. Southern Wis. R. Co., 156 Wis. 352 (146 N. W. 492).
We find nothing in this statute, when reasonably and properly construed, which denies to the appellees the benefit of their constitutional rights, privileges, and immunities; and upon the conceded and well proven facts, we find the appellant city entitled to the relief prayed for in its petition. The decree below is therefore reversed, and cause remanded to the trial court for a decree in harmony with the views expressed in this opinion.— Beversed and remanded.
Supplemental Opinion.
Rehearing
“Cities of the first class, including cities under commission form of government, and cities under special charter may (and upon petition of sixty per cent of the owners of the real estate in the district sought to he affected residing in such city shall) designate and establish, by appropriate proceedings, restricted residence districts within its limits.”
The italics and parenthetical marks our ours. For reasons already sufficiently considered, the validity of such a delegation of power to the city is not open to doubt, unless, as contended by counsel for appellees, it is to be held vitiated by the parenthetical clause which we have italicized. Opposed to any such ruling there are two insuperable obstacles:
(1) Even if the clause be held invalid as an unconstitutional delegation of power to private citizens to control the legislative functions of the city council, its judicial condemnation does not involve nor require the condemnation of the entire act in which it is found. In other words, the clause may be obliterated entirely, without affecting the validity of the grant of power to the city:
(2) To preserve the constitutionality of the act, the word “shall,” found in said clause, will be held to be not mandatory, but directory or permissive. Santo v. State, 2 Iowa 165; State v. County Judge, 2 Iowa 280; Duncombe v. Prindle, 12 Iowa 1; Cooh v. Marshall County, 119 Iowa 384; Parish & Porterfield v. Elwell, 46 Iowa 162; State v. Minor, 106 Iowa 642, 648; Jordan v. Circuit Court, 69 Iowa 177, 179; People v. Sanitary Bist., 184 Ill. 597 (56 N. E. 953); Burns v. Henderson, 20 Ill. 264; Thompson v. Board of Trustees, 144 Cal. 281 (77 Pac. 951); City of Denver n. Londoner, 33 Colo. 104 (80 Pac. 117, 121); State v.
The above cited, case of Thompson ■v. Board of Trustees is quite in point. There, an ordinance provided that, on petition of a certain per cent of voters, “the board of trustees shall submit [a certain proposition] to 'said voters;” and it was held that the duty so imposed was not mandatory. So, also, in City of Denver v. Londoner, supra, a charter provision that the city council “shall pass” an assessing ordinance when recommended by a board of public works was construed as meaning that the council may pass such ordinance. The precedents to this general effect are quite numerous, but we have mentioned sufficient to show the trend of all the authorities.
We are, therefore, disposed to hold that, while the statute here in question authorizes the stated percentage of property owners in a proposed restricted residence district to initiate a movement therefor by petition to the city-council, such petition or consent does not impose upon the council the mandatory duty to enact the requested ordinance. In other words, the enactment of such an ordinance remains within the legislative discretion of the council.
What we have said with reference to the absence of mandatory effect of a petition to establish a district is doubtless equally applicable to that provision of the ordinance not found in the statute, as to the effect of objection by 60 per cent of the property owners to any proposed building permit. That question is, however, not directly raised in this appeal; but we speak of it to remove, if practicable, a possible occasion for future litigation. The petitions for rehearing by the several appellees are overruled.