Village of Ashley v. Ashley Lumber Co.

Bruce, Ch. J. This is an action in equity to have decreed to he a nuisance and abated as such, a certain frame building of the dimensions of 14 by 20 feet with 8-foot posts, which was constructed in the village of Ashley in violation of the terms of the village ordinance — which created a fire district. Although it seems to be conceded that the building was not in itself such a structure as would have been deemed a nuisance at the common law, the plaintiff and appellant contends that since the building was within the limits of the fire district and was constructed in violation of the village ordinance it could be properly decreed to be removed, and that the creation of the fire district made proof of the fact of an actual — 520 — nuisance unnecessary. The contention of the defendant and respondent is that in the first place the village of Ashley had not the power to pass the ordinance in question, and in the second that, if it had such power, the power had not been exercised in a reasonable and fair manner and without discrimination, and that, therefore, the ordinance was invalid, or that, at any rate, a court of equity should not enforce the provisions of an ordinance so enacted. He also maintains that the case is not in any event one of which courts of equity will take cognizance, since the ■ remedies afforded by the courts of law are adequate to the situation. The only express grant of power, as far as villages are concerned, seems to be contained, if contained at all, in ¶ 3 of § 3861, Compiled Laws 1913, which provides that: “The boards of trustees shall have the following powers: . . . To organize fire companies, hook and ladder companies, to regulate their government and the times and manner of their exercise; to provide all necessary apparatus for the extinguishment of fires; to make owners of buildings provide ladders and fire buckets, which are hereby declared to be appurtenances to the real estate and exempt from execution, seizure or sale; and if the owner shall refuse to procure suitable ladders or fire buckets after reasonable notice, the trustees may procure and deliver the same to him; and in default of payment thereof may recover of said owner the value of said ladder and fire buckets, by suit before the justice of the peace of the village, and the courts accruing thereby; to regulate the storage of gunpowder and other material; to direct the construction of a place for the safe deposit of ashes; and may under any order by it entered upon the proper book of the board, visit or appoint one or more fire wardens to visit, and examine at all reasonable hours, dwelling houses, lots, yards, inclosures, and buildings of every description, discover if any of them are in a dangerous condition, and provide proper remedies for such dangersj to regulate the manner of putting up stoves and stovepipes; to prevent out-fh’es and the use of fireworks and the discharge of firearms within the limits of said corporation, or such parts thereof as it may think proper; to compel the inhabitants of such village to aid in extinguishment of fire and prevent its communication to other buildings, under such penalties as are in this chapter provided; to construct and preserve reservoirs, wells, pumps and other waterworks, and to regulate the use thereof and, generally, to establish other measures — 521 — of prudence for the prevention or extinguishment of fires as it shall deem proper." This section is to be compared with § 8599 of the Compiled Laws of 1913, § 47 of which provides that a city shall have the power: “To prescribe the limits within which wooden buildings shall not be erected or placed, or repaired without permission, and to direct that all and any buildings within said limits, which shall be known as the fire limits, when the same shall have been damaged by fire, decay or otherwise, to the extent of 50 per cent of the value, shall be torn down or removed and to prescribe the manner of ascertaining such damage and to provide for the removal of any structure or building erected contrary to such prescription, and to declare each day’s continuance of such structure or building a separate offense, and prescribe penalties therefor; and define fire proof material and by ordinance provide for issuing building permits, and appointment of building inspectors.” Counsel for respondent argues from this comparison that not only was no power to ci*eate fire districts granted to villages, but the power was purposely and intentionally omitted. He argues that in a city permanency of location is practically guaranteed, and that property owners will be justified in constructing expensive buildings, and that the opposite is true of villages, and not only this, but in villages the board of trustees may combine with the favored business men to exclude competition by confining its fire areas to those portions of the village owned by their would-be competitors. Counsel for appellant, on the other hand, contends that: 1. A village has the inherent power to create such districts independently of any statutes. 2. That the power may be inferred from the provisions of subdivision 3 of § 3861 of the Compiled Laws of 1913, which grants to the board of trustees the power to “establish other measures of prudence for the prevention or extinguishment of fires as it shall deem proper.” We agree with counsel for respondent that since the cities and villages of North Dakota are creatures of the statute and of the statute alone, they have no inherent powers, but such only as the legislature has granted to them either in their charters or in the general acts under which they have been incorporated, together with such other powers as are necessarily implied from or incident to those expressly granted or — 522 — which are indispensable to the declared objects and purposes of their creation. See 19 R. C. L. 768; Charleston v. Reed, 27 W. Va. 681, 55 Am. Rep. 336. We are, however, none the less satisfied that the words, “to establish other moans of prudence for the prevention or extinguishment of fires as it shall deem proper,” necessarily imply, or rather expressly grant, the power to create fire districts. It is not necessary for us to hold that the creation of a fire district belongs to any particular one of the classes or subjects before enumerated in the section, though there is much in support of this proposition. The case, indeed, is not one of an express enumeration followed by general words in a restrictive or penal act, as where certain acts or things or games or pursuits are made unlawful and other similar acts or things or games or pursuits are prohibited. The clause contains a general grant of power, and not a negation. This general grant follows, it is true, a specific enumeration; but it is a general grant of power none the less, and not a restriction on any power theretofore, granted. It is to be noticed that the clause reads, “And generally to establish, etc.” Clearly the section should be construed as if it had read, “Generally to establish measures of prudence for the prevention and extinguishment of fires as it shall deem proper, and among them to organize fire companies, etc.” It, at any rate, expressly states that the other measures of prudence for the prevention or the extinguishment of fires shall be such as the village trustees deem proper. It does not limit these trustees to the particular classes enumerated. The general subject or genus of the enumeration is fire protection, and the establishment of a fire district certainly comes within this general genus. See State ex rel. Shaw v. Frazier, 39 N. D. 430, 167 N. W. 510. We realize that no such power was held to have been granted in the case of Hudson v. Thorne, 7 Paige, 261, where “the city charter which authorized the common council from time to time to pass such ordinances as they should think proper to remove or prevent the construction of any fireplace, hearth, chimney, stove, oven, boiler, kettle, or apparatus used in any house, building, manufactory, or business which might be dangerous in causing or promoting fires; to regulate or prevent the carrying on of manufactures dangerous in causing or promoting fires; to adopt and establish such regulations for the prevention or — 523 — suppression of fires as might be necessary; and, generally, to make all such rules, regulations, by-laws, and ordinances for the good government of the city, and the trade and commerce thereof, as they might deem expedient, not repugnant to the Constitution and the laws of the state.” We cannot, however, believe that this decision should be followed by us or is controlling. Much more reasonable, indeed, appears to be that of the supreme court of Washington in the case of Olympia v. Mann, 1 Wash. 389, 12 L.R.A. 150, 25 Pac. 337, wherein the city was held to have the authority to prescribe fire limits under a charter which conferred upon it the power “to make regulations for the prevention of accidents by fire; to organize and establish a fire department and make and ordain rules for the government of the same; to provide fire engines and other apparatus, and to levy and collect special taxes for that purpose ... to prevent by all possible and proper means, danger or risk of injury or damages by fire arising from carelessness, negligence or otherwise ... to adopt proper ordinances for the government of the city, and to carry into effect the powers given by this act . . . and the city of Olympia shall have such other powers and privileges not herein specifically enumerated as are incident to municipal corporations of like character and degree.” We may also refer to the following cases; Alexander v. Greenville, 54 Miss. 659, wherein the court held that the power to establish fire limits was conferred upon a town by a charter which gave to it the authority “to provide for the prevention and extinguishment of fires and to organize and establish fire companies; to regulate the fixing of chimneys and flues thereof, and the manner of using' stoves and stovepipes in dwelling houses, stores, offices, warehouses and other buildings in said town; to regulate and order parapet walls and partition fences, and to regulate the storage of gunpowder and other combustible materials.” Charleston v. Reed, 27 W. Va. 681, 55 Am. Rep. 336, wherein the power was implied under a charter which authorized the city “to make regulations for guarding against damage by fire.” Hine v. New Haven, 40 Conn. 478, wherein the power was inferred under the authority “to protect said city from fire; to organize, maintain and regulate a fire department and fire apparatus; to regulate,the mode of building and the materials used for building or altering buildings within said city or any — 524 — part thereof; and the mode of using any buildings therein and of heating the same, when such regulations seem expedient for the purpose of protecting said city from the dangers of fire.” Ford v. Thralkill, 84 Ga. 169, 10 S. E. 600, wherein the power was inferred from the authority “to make regulations for guarding against danger of damage by fire.” Wadleigh v. Gilman, 12 Me. 403, 28 Am. Dec. 188, wherein the power was implied from the general authority “to ordain and establish such acts, laws, and regulations, ... as shall be needful toi the good order of said body politic.” Hubbard v. Medford, 20 Or. 315, 25 Pac. 640, wherein the power was inferred from the authority “to regulate the storage of gunpowder, tar, pitch, resin, and all other combustible materials, and the use of candles, lamps, and other lights in stores, shops, stables, and other places; to prevent, remove, and secure any fireplace; stove, chimney, oven, or boiler, or other apparatus which may be dangerous in causing fire; and to provide for the prevention and extinguishment of fires.” See also McQuillin, Mun. Ord. § 470. The case of Hudson v. Thorne, supra, indeed, though decided in 1838, seems to have been criticized rather than followed, and to stand by itself. By some its announcement seems to be considered as dictum merely. See opinion in Hubbard v. Medford, supra. However that may be, we fail to find any other case where the power is denied under a statute or charter, which gives the authority “to provide for the prevention and extinguishment of fires.” Nor is there any merit in the contention that the establishment of fire limits would be unreasonable in villages, though reasonable in cities; and that the courts must give the legislature credit for a knowledge of the fact. The reverse condition really seems to exist in the state of North Dakota. Too many villages, indeed, have been swept away by fires on our wind-swept prairies for us to be blind to the fact that, where as a matter of necessity adequate water facilities and fire fighting apparatus are difficult, if not impossible, to be obtained, as they are in most of our villages, the danger from fire is even greater than it is in the larger cities, and that the need.of proper precautions is even more necessary. Nor is there any merit in the argument that the village trustees might — 525 — connive with and favor the first comers and established business men in the creation of fire districts. The court must presume honesty, and not dishonesty. This presumption of good faith, indeed, which with all our shortcomings is everywhere in America much more than a presumption, is the foundation of our democracy, and without it there would be no social progress. Nor does the fact that the building in question was not in itself a common-law nuisance prevent the trustees or the court from ordering its removal. The limits of a fire district must necessarily be largely left to the sound discretion of the administrative or legislative body which is authorized to create it. Nor should a negation of power be based on the fact that the power is granted in clear and specific terms to cities' in the so-called Cities and Village Act of 1895 and in chapter 73 of the Laws of 1887, and that this is not true in the case of villages and of the act which is before us. The clause, “and generally to establish other measures of prudence for the prevention or extinguishment of fires as it shall deem proper,” first appears in the territorial days and as a part of subdivision 3 of •§ 22 of chapter 14 of the Session Laws of 1867-1868. The title of the act is “An Act for the Incorporation of Towns, Defining Their Powers, Providing for the Election of Officers thereof and Defining Their Duties,” and § 22 of the act is identical in words and in phrasing with paragraph 3 of § 3861 of the Compiled Laws of 1913, which is now before us for consideration. It will be noticed that in the title of this Act of 1867-1868 the generic word “town” is used, and the act seems to apply to all incorporated municipal corporations, no matter of what size. It was not, indeed, until the year of 1887 that there was any general law for the incorporation •of cities, and prior to that time all cities which were incorporated as such were incorporated under special charters. Section 22 of the Act of 1867-1868 was again re-enacted, and in identically the same form, in chapter 10 of the Territorial Session Laws of 1875. Neither in this act nor in the Act of 1867 was the term, “village or city,” used, but the generic term “town” merely. We next come to chapter 24 of the Revised Codes of 1877. There the chapter bears the title, “Incorporation of Towns and Cities,” the section before referred to is re-enacted as § 22, and, as before, nowhere — 526 — are the words, “city or village,” used except in the chapter heading and in § 35, wherein it is provided that a provision regarding the collection of taxes by the marshal “shall not apply to incorporated cities, villages, or towns, for which a different manner is provided by their charter.” Again in chapter 31 of the Session Laws of 1885 we find an act “Providing a Method for Changing the Names of Towns and Villages,” and throughout the act the phrase, “town or village,” alone is used, and nowhere does the word “city” appear. Next follows chapter 73 of the Territorial Laws of 1887, which is “An Act to Provide for the Incorporation of Cities,” and the first general act as far as cities are concerned. This act appears as chapter 2 of the Political Code of the Compiled Laws of 1887, and begins with § 844. In it is contained the first specific reference to fire limits, — ¶ 49 of § 1 of article 4 of the act being ¶ 49 of § 885 of the Code, giving the city council the power “to prescribe the limits within which wooden buildings shall not be erected or placed or repaired without permission, and to direct that all and 'any buildings within said limit, which shall be known as the fire limits, when the same shall have been damaged by fire, decay, or otherwise to the extent of 50 per cent of the value, shall be tom down or removed, and to prescribe the manner of ascertaining such damage.” Nowhere in this act, however, is any general power “to establish other measures of prudence for the prevention or extinguishment of fires as it shall deem proper” granted. The purpose of the enumeration of power seems clearly to have been to define more clearly the general powers given in the prior acts. At the samo session of the legislature we find chapter 106, which amends § 22 of chapter 24 of the Political Code, entitled “Incorporation of Towns and Cities So As to Empower the Trustees to Authorize the Construction and Maintenance of Street Railways, Water Mains and Water Pipes, and Gas Mains and Gas Pipes Along through the Streets and Alleys within the Corporated Limits, etc.” This act clearly recognizes the applicability of chapter 24 of the Compiled Laws of 1877 to cities as well as villages, and that the generic term “town” included both, and that chapter 73 of the Laws of 1887, which related to the incorporation of cities, merely applied to those which should thereafter seek to come within its provisions. — 527 — Next follows the Revised Codes of 1895, and in them a revision of the Territorial Laws of 1887. In the act relating to cities and in ¶ 48 of article 4, chap. 28, thereof, being ¶ 48 of § 2148, ¶ 49 of § 885, Comp. Laws of 1887, is re-enacted. It is also worthy of notice that in chapter 12 of the Session Laws of 1875 by which the city of Fargo was incorporated under a special charter, the same general term is used as in the act that is before us, and that all the council was authorized to do was to provide for the organization and support of fire companies and “to establish regulations for the prevention and extinguishment of fires.” See ¶ 20, § 12, article 2. The same is true of the act incorporating the city of Bismarck. See ¶ 27, § 12, article 2, chapter 11, Session Laws of 1875. It has been quite common in the history of , legislation to use the word “town” as a generic term and as including both cities and villages (see Dunn v. Whitestown, 185 Fed. 585; State ex rel. Hartford v. Craig, 132 Ind. 54, 16 L.R.A. 688, 32 Am. St. Rep. 237, 31 N. E. 352; Klauber v. Higgins, 117 Cal. 451, 49 Pac. 466; 3 Bouvier’s Law Dict. 3d Rev. p. 3289; 8 Words & Phrases, pp. 7026, 7817), and we are quite sure that it was so used by the legislatures of both the territory and state of North Dakota. It is, indeed, very apparent to us that during the twenty years which intervened between 1867 and 1887 the legislature did not intend to restrict the city councils of the incorporated cities such as Bismarck and Fargo, or of the growing towns, which, in fact, had assumed the dimensions of cities but had not yet assumed the name, to such an extent that they could not adopt the reasonable precaution of creating fire limits. It is clear to us, also, that when the legislature granted to these municipalities the general power to establish “other means of prudence for the prevention or extinguishment of fires as it shall deem proper,” they intended that a general power should be conferred which should include the creation of fire districts, and that the reasonable discretion of the governing bodies should control. See Olympia v. Mann, 1 Wash. 389, 12 L.R.A. 150, 25 Pac. 337, and cases before cited. Nor do we believe that there is any merit in the contention that the ordinance was arbitrary and unreasonable and discriminating in its nature. It is true that a large portion of the village is not included therein, but such a condition is only what is usual and to be expected. — 528 — It is true, also, that outside of the limits there are located a.livery stable and a garage, which may, perhaps, communicate fire to the business portions of the city. No fraud, however, is shown in the passage of the •ordinance, nor is there any proof of prejudice or ulterior motive, and the evidence is quite persuasive to the effect that the business portions of the city will probably not extend into the omitted territory. There must at any rate be some limits to every fire district, and what these limits shall be is largely a matter - of legislative discretion. The trial court found that the ordinance was not discriminating, and we have no reason for interfering with his finding. But was the court also justified in its conclusion of law that “the building in question not being a nuisance per sa, this court is without jurisdiction and will not interfere or grant equitable relief by injunction or otherwise to restrain the violation of the ordinance in question, and that the plaintiff is therefore entitled to no relief and the action should be dismissed ?” Should, in short, the prayer of the complaint be granted, which asks: “1. That the said building be held to be a nuisance, and that the same be abated according to law. 2. That it be adjudged herein that said building was constructed in violation of the provisions •of said ordinance, and that said defendant by mandatory injunction be required to remove said building?” In other words, may a court of •equity enforce the provisions of § 2 of the ordinance, which provides that: ■“The outer walls of any building or structure hereafter erected within the aforesaid limits of said village of Ashley, which does not comply with the provisions of this ordinance, shall be condemned by the board •of trustees of said village as unsafe and a menace to life and property, and shall be by said trustee ordered destroyed and removed under their direction ?” Or is ample relief to be found in § 4 of the ordinance, which provides that: “It shall be the duty of the village marshal of said village upon his being informed of the fact that any person is erecting or constructing any building or structure of any nature which does not comply’ with the provisions of this ordinance, or upon being informed that any person is erecting structure of any nature within the said limits of the said village of Ashley without having obtained a building permit thereof as — 529 — herein provided for, to at once make complaint before the village justice of the peace of the said village of Ashley, setting forth the facts under oath, and the said village justice shall thereupon issue his warrant for the arrest of any such person, and deliver the same to the said marshal, who shall thereupon arrest such person and bring him before said village justice to be dealt with according to law and according to the ordinance of said village. “Any person or persons violating the provisions of this ordinance shall upon conviction thereof, before the village justice of the peace of said village, be punished by a fine of ten (10) dollars for each offense, or by imprisonment in the village jail of said village, or such place as shall be provided by said village for such purpose, not exceeding ten (10) days, or by both such fine and imprisonment.” We are of the opinion that a court of equity may properly interpose in the premises. We are aware of the fact that the trial court held that the building in question was not of such a nature as to make it a nuisance per se at the common law. We are also aware of the long line of authority which seems to generally hold that equity will not lend its aid to enforce by injunction the by-laws or ordinances of a municipal corporation, unless the act sought to be restrained is shown to be a nuisance per se, and this on the theoiy that the maintenance of a nuisance is an indictable offense, and if the laws be framed with proper penalties the measure of redress at law will be adequate, effectual, and complete so far as the public is concerned. See Parker & W. Public Health & Safety, § 223; St. Johns v. McFarlan, 33 Mich. 72, 20 Am. Rep. 671; 2 Dill. Mun. Corp. 5th ed. § 650; 2 McQuillin, Mun. Corp. § 806. In the case at bar, however, the ordinance merely provides for the punishment of one who erects a wooden building within the prescribed limits by a fine of $10, and there is no provision for the destruction or removal of the building except that found in § 2, which provides that the board of trustees may condemn such a building if erected, and order its destruction or removal. We realize, of course, that when a building is constructed in violation of the law and in violation of the mandates of a valid ordinance, it to that extent becomes a nuisance, and may be removed by the municipal authorities, even though it be not what may be known as a common-law nuisance. See First Nat. Bank v. Sarlls, — 530 — 120 Ind. 201, 13 L.R.A. 481, 28 Am. St. Rep. 185, 28 N. E. 434. The penalty prescribed by the ordinance, however, does not extend to the maintenance of the nuisance but to the construction of the building merely, and only one fine of $10 seems to be imposed. The imposition of this fine would not remove the structure, and the only resort left would seem to be for the municipality to itself destroy or order the same to be destroyed or removed. The petition alleges that an order for removal was given. It is, of course, clear that the city could itself remove the building, and then sue the defendant and recover the cost incident to such removal. In the case at bar, however, this proceeding would have compelled the municipal authorities to have themselves incurred the risk of a suit in damages in case the building was not a nuisance per se or the ordinance prescribing the fire limits had not been held valid. Surely, where there is doubt as to the existence of a power and the fact of a nuisance, the orderly and proper procedure is to have the matter first adjudicated, and to have the rights of the parties first determined, before the property is destroyed or removed. There can be no question that under the facts which are before us, and in view of the legitimate difference of opinion as to the real law of the case, a court of equity would have issued a preliminary injunction at the suit of the owner of the building, and restrained the destruction or removal of the property until the rights of the parties could be determined, and, if the ordinance had been held invalid, have permanently restrained the destruction or removal of the property. Parker & W. Public Health & Safety, §§ 105, 108. We have held that the building in question was erected and is now maintained in violation of' a valid ordinance, and is therefore a statutory if not a common-law nuisance. Surely equity requires that he who constructs such a building shall remove it, or he who maintains a nuisance shall abate it. It is true that “the only common-law remedy for the abatement of a public nuisance was by indictment, but it is now well settled that a court of equity may, in a proper case, take jurisdiction of public nuisances in civil actions for their abatement, and to enjoin their maintenance. This jurisdiction is grounded upon the greater efficacy and promptitude of the remedies administered in such actions, enabling the court to restrain nuisances that are threatened or in progress, as well — 531 — as to abate those already in existence, and effect their final suppression by injunction, which will often also prevent a multiplicity of suits.” Mitchell, J., in Hutchinson Twp. v. Filk, 44 Minn. 536, 47 N. W. 255; Pine City v. Munch, 42 Minn. 342, 6 L.R.A. 763, 44 N. W. 197; 20 R. C. L. 473, 474; 14 R. C. L. 379. It is true that where the fact of the nuisance is in dispute a jury trial should be permitted and is the proper remedy. Where, however, the matter is one of law, and of law alone, and the only question is the validity of the ordinance defining the nuisance, no such considerations apply and the rule is otherwise. The question involved is whether a village can maintain a fire district or whether it can not. Must it tolerate the existence of a building within that district which is erected in defiance of its laws ? Building Commission v. Kunin, 181 Mich. 604, 148 N. W. 207, Ann. Cas. 1916C, 959. The judgment of the District Court is reversed, and the cause is remanded with directions to enter judgment according to the prayer of the petition.