80 Neb. 526 | Neb. | 1908
An ordinance of the city of Omaha made it unlawful for any person to construct artificial stone, asphalt or other composite walks without a license therefor. Section 2 of this ordinance, which contained its material provisions, was as follows: “Any person, firm or corporation desiring to engage in the construction of artificial stone, asphalt or other composite sidewalks in the city, shall bo required to apply for a license to the mayor and city council; such license to expire on December 31st of each year. The condition of the issuance of such license to be the payment of ten dollars to the city treasurer and the filing Avith the city clerk of a surety bond to the city of Omaha, in the sum of |2,000, to be approved by the mayor and city council, guaranteeing the construction of all such walks in conformity Avith approved specifications of the
The power to pass a city ordinance must be vested in the governing body by the legislature in express terms, or be necessarily or fairly implied in and incident to the powers expressly granted, and must be essential to the declared purpose of the corporation; not simply convenient, but indispensable. 1 Dillon, Municipal Corporations (4th ed.), sec. 89; Anderson v. City of Wellington, 40 Kan. 173. Powers encroaching upon the rights of the public or of individuals must be plainly and literally conferred by the charter. Breninger v. Belvidere, 44 N. J. Law, 350. The power to license must be plainly conferred, or it will not be held to exist. 1 Dillon, Municipal Corporations (4th ed.), sec. 361; Dunham v. Trustees of Rochester, 5 Cow. (N. Y.) 462; Commonwealth v. Stodder, 2 Cush.
It is conceded that no express power is given to license and regulate the vocation mentioned in the ordinance; but it is argued that the power is necessarily implied from the right of the city to designate the material and manner of construction of the walks to be laid in its streets. In considering this question, it should be borne in mind that the legislature in imposing upon the lot owner the burden of maintaining walks in front of his premises reserved to him the privilege of himself constructing the same. Section 121 of the charter of the city of Omaha (Comp. St. 1905, ch. 12«) provides: “Before any sidewalk shall be constructed or repaired by the city the owner or owners of the lots or lands to be assessed shall be given notice to construct or repair such sidewalk and shall have 20 days after the giving of such notice within which to construct- or repair the same.” And that “in case the owner or owners shall fail to construct or repair such sidewalk as directed the city may construct or repair said walk and assess the cost thereof upon the abutting property.” It appears that, so far as the owner was concerned, he was acting within the right given by law to construct the walk in front of his premise's, and the only question involved is the right of the city to compel the plaintiff to comply with the requirements of the ordinance as a condition of following his vocation. We think the restrictions imposed by the ordinance are not only unreasonably oppressive, but unnecessary to the exercise of the power to designate the material and manner of construction of such walks. Its provisions must prove onerous to the individual of slender means engaged in the vocation sought to be regulated. He is required to pay a fee of $10 for each year or fraction of a year, a not inconsiderable tax upon a small business. In addition to this, he is required to give annually a bond, upon which his sureties will be liable for a period of five years, so that if he continues in business for that period of time he will be compelled to furnish five
2. It was suggested that the poAver to enact this ordinance might be implied from the general welfare clause of the charter, or from the general power of supervision over streets. We are cited to no case which sustains the exercise of the poAver assumed, and in our own examination of the
The ordinance as it stands is without authority, unreasonable and void; and we recommend that the judgment of the district court be affirmed.
By the Court: For the reasons stated in the foregoing opinion^ the judgment of the district court is
Affirmed.