78 Neb. 33 | Neb. | 1907
The charter of the city of Omaha, besides conferring upon the mayor and council of the city the usual powers to abate nuisances and to provide, by ordinance, police regulations for the good government and the preservation of the general welfare, health, safety and security of the city and its inhabitants, contains the following specific grant of authority: The mayor and council may “regulate or prohibit the transportation and keeping of gunpowder, oils and other combustible and explosive articles.” They are also given the usual powers to prescribe fire limits and to regulate the. erection of all buildings within the corporate limits. In the supposed exercise, more particularly, of the last two mentioned powers, the mayor and council enacted an ordinance containing two sections numbered, respectively, 96 and 97, of which the following is a copy:
“Section ninety-six (96). It is hereby declared unlawful to erect any tanks,' or to build any storage reservoirs,
“Section ninety-seven (97). Before constructing any building or structure to be used for the manufacture of illuminating or fuel gas, and before erecting any tanks, storage reservoir or. other receptacles for the purpose of storing either illuminating or fuel gas, and before remodeling or using any building, structure, tanks or reservoir for such purpose, the party or parties desiring such privilege shall first obtain the written consent of all the property owners within a radius of one thousand feet of the proposed building, structure, tank or reservoir to be used for such purpose, and file such permission with the building inspector of the city of Omaha and comply with all other ordinances, rules and regulations relating to buildings.”
The Omaha Gas Company is a corporation of this state having its principal place of business at Omaha, and authorized and required by law and by municipal ordinance to construct, maintain and operate gas works in said city, and to manufacture and transmit and distribute, through mains and pipes in and under the streets and public grounds, illuminating and fuel gas for the use of the public and individuals, and for that purpose has erected, and for several years last past has maintained, a gas manufacturing plant upon grounds belonging to it in said city. In 1906 the gas company, for the purpose of increasing its capacity to a degree requisite to supply the needs-of a rapidly growing community, it being the only institution of its kind in the city, applied to the building inspector for a permit to erect and maintain upon its grounds and in connection with its existing works a reservoir or “gas holder” capable of storing 1,200,000 cubic feet of gas. The application complies with
The ordinance does not purport to be, and was not intended to be, prohibitory, but to be regulatory only; nor is it sought to declare the manufacture and distribution of gas, or the maintenance and operation of works therefor, or the storage of gas in connection therewith, within-the city, by the relator or others, a nuisance per sej nor is it disputed that the conduct of such a business under proper regulations is a legitimate and under existing conditions a necessary, enterprise, indispensable to the health, happiness and prosperity of the modern city and its inhabitants, or, as is said in New Orleans Gas Co. v. Louisiana Light Co., 115 U. S. 650, “is a business of a public nature,” and is “one which, so far from affecting the public injuriously, has become one of the most important agencies of civilization, for the promotion of the public convenience and the public safety.” The ultimate inquiry is, therefore, whether the provision in.question is a reasonable exercise of the regulatory powers of the mayor and council. Counsel for the relator contend that it is not such for two reasons: First, because it is, or in practical operation may readily become, prohibitory, on account of the difficulty or impossibility of procuring the unanimous consent of all the owners of property in any locality of the city; and, second, because it assumes to confer upon individual property owners within the pre
We are not without judicial precedent of the highest character for our conclusion, and it has been held not only that the governing body cannot commit the exercise of its legislative discretion to property owners or other private persons, but that it cannot entrust it to the caprice of any of the officers of the city, and even that it cannot reserve to itself, in its administrative rather than its legislative capacity, an absolute and despotic power to grant or refuse permits of the character in question,
We are of opinion that the ninety-seventh section of the-Omaha ordinance, in so far as it requires the written consent of the property owners, is void, and recommend that the judgment of the district court be reversed.
By the Court: For the reasons stated in the foregoing
Reversed.