26 A.L.R. 758 | N.D. | 1922
Lead Opinion
Statement.
This is an action to enjoin enforcement of an ordinance. Defendants have appealed from decree of injunction determining the ordinance to be void. The facts are: For some twenty-one- years in Fargo, plaintiff has been engaged in the undertaking business. In April, 1919, he negotiated for the purchase of 4% lots in block 32 of the original townsite of Fargo for the purpose of conducting there his business and erecting a building therefor. On May 1st, 1919, a deed was issued. About May 5th, 1919, plaintiff made a contract for the excavation work for the building. Certain resident citizens of Fargo protested to him and to the city commission against such location of the business. A petition was presented to the city council requesting an ordinance to be enacted which would prohibit the building and maintaining of a morgue in' portions of the city occupied mainly for residences. On May 7th, 1919, petitions were received by the city com
Meantime, the construction of the funeral home progressed to completion and about Oct. 1st, 1919, plaintiff started to use the same as a morgue and to conduct his entire business there. Since that time he has so used the premises. On March 10th, 1920, this action was started and a temporary order secured enjoining the city officials from enforcing the ordinance. The complaint alleges, among other grounds, that the ordinance is invalid, because indefinite and uncertain, and that plaintiff is threatened with actions and with arrest from day to day,, while such mortuary is so maintained by him.
'At the trial the inquiry was directed specifically to the legality of the ordinance. Defendants introduced a plat of the city of Fargo. Defendants offered to prove through two witnesses that all that part of the city of Fargo, south of 1st avenue south (wherein the mortuary
The Honorable Chas. M. Cooley, district judge, found that for more than twelve years plaintiff had been engaged in Pargo in the lawful business of maintaining an undertaking establishment; that on April 5th, 1919, plaintiff negotiated for the real estate in block 32; that he began active work on May 8th, 1919, to erect and construct a mortuary thereon; that plaintiff has expended about $25,000; that the mortuary chapel cost about $15,000; that the ordinance became effective on June 1st, 1919; that the work of construction proceeded for a period of nearly three months before any attempt was made to enforce this ordinance ; that, before the enactment of the ordinance, a building permit was given to plaintiff for the erection of such mortuary in accordance with the approved plans and specifications, which permit had never been revoked; that plaintiff has been threatened with a multiplicity of suits and prosecutions under the ordinance which require injunctional relief; that the ordinance is illegal and void for uncertainty; that it is incapable of valid enforcement because of the indefinite and uncertain territory within which the same purports to be operative. Accordingly, the ordinance was held void and a judgment to prevent its enforcement was entered.
Decision.
The only question requiring consideration is whether the ordinance is indefinite and uncertain, and, therefore, invalid.
The city possesses the power to regulate the establishment and maintenance of undertaking establishments and to prescribe the limits within which they may be operated. Comp. Laws, 1913, § 3818 ¶¶ 52-75. The express statutory authority is conferred upon the city to regulate the location of undertaking establishments. ¶ 75, supra.
The city of Fargo has sought to exercise this authority. By the
The business of undertaking, which theretofore was wholly a lawful business conducted anywhere within the city limits, still remains a lawful business where it is not conducted in a place prohibited by the ordinance.
But, since the ordinance became effective, how may an owner of an undertaking establishment, desirous of obeying» the law, determine whether his location now is, or yesterday was, in a lawful or unlawful place? For the test of the validity of the ordinance depends upon its universality; its universal application in determining a definite and certain restricted location. In this case the test of the validity of the ordinance is not made dependent upon proof that within a certain designated area, wherein the mortuary is located, the properties are either mainly or wholly occupied for residences. No proof has been presented in that regard.
In determining the “parts occupied mainly for residences,” what portion of the city around the locus in quo shall be included? What portion excluded? How much of a portion in extent, in length, in width, may be considered? What measure or rule stick is furnished by the ordinance, through which the undertaker may determine that his location, present or prospective, is lawful ? May the same location, through the consideration of eight or nine blocks, of surrounding and adjacent territory, by testimony of witnesses, verdict of jury, and finding of court, be made unlawful because “occupied mainly for residences,” and, through the consideration of another eight or nine blocks, likewise surrounding and adjacent, in another action, by other testimony, another verdict of the jury, and finding of the court, be made lawful? If so, is the rule of guidance fixed by the ordinance or delegated to others ? Defendants present no rule of ascertainment. However, they contend that there are well-recognized districts in cities patent to all and capable of judicial notice. That business districts are central, residence districts, suburban; that the line of demarcation can be ascertained. But the ordinance by its terms, does not confine the prohibition of location to exclusive residence districts, nor award the license of lawful locality to exclusive business districts. Pursuant to
Dissenting Opinion
(dissenting). This is an appeal from a judgment enjoining the city of Eargo from the enforcement of an ordinance against maintaining a morgue or undertaking establishment in any part of the city occupied mainly for residence purposes. It appears that pending the passage of the ordinance the plaintiff purchased a lot in the best residence part of the city and commenced the erection of a morgue or undertaking establishment. It seems that he run a race with the city commissioners by trying to get the establishment well under way before the passage of the ordinance. He avers that prior to the passage lie had expended $1,000 on the building and incurred obligations to pay on a building contract $15,000, and that subsequently he paid the same. The plaintiff contends that the city counsel had no legal power to pass and enforce the ordinance restraining him from conducting the business. Also, that the ordinance is indefinite, uncertain, and that the business is not a nuisance.
The ordinance makes it unlawful for any person to maintain within parts of the city of Eargo occupied mainly by residences any morgue, undertaking parlors, rooms or places used mainly for the purpose of embalming, preserving or caring for the dead, or any chapel or room used mainly for funeral purposes.
Eor violation the punishment is a fine not exceeding $100 or imprisonment not exceeding three months, or both. Now it seems entirely clear that neither the ordinance nor the act of the legislature is in any way ambiguous, indefinite, or uncertain. By statute, § 3818, the city commission is given power to pass the ordinance in question. The power is given by §§ 52, 54, 75.
Section 52: To declare what shall be a nuisance and abate the same and to impose fines upon persons who may create, continue, or suffer a nuisance to exist.
Section 54: To do all acts and make all regulations which may be necessary or expedient for the promotion of health or for the suppression of disease.
' Section 75: To regulate the location of hospitals and undertaking establishments.
The ordinance is strictly within the letter and spirit of the law and the power granted to the city commissioners. Contrary to the ordinance
The plaintiff claims the right to enjoy life, liberty, and property
Were the case one of doubt, which it is not, the injunction should not be granted. The case presents no equity. The plaintiff should have known well that he had no right to operate a morgue or undertaking business in that part of the city. The ordinance is clearly authorized by statute. It is reasonable, definite, and in no way ambiguous.