Wasem v. City of Fargo

Statement. Bronson, J. 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 [170] mission. On May 8th, 1919, an ordinance was introduced and read. It provided, § 1, “That it shall be unlawful for any person, firm, or corporation to build, establish, operate, or maintain within those parts of the city of Fargo occupied mainly for residences, any morgue, under-talcing parlors, room, or place used solely or mainly for the purpose of •embalming, preserving, or caring for the dead; or any chapel or room used solely or mainly for funeral purposes.” On May 16th, 1919, 'this ordinance was amended by providing: “No permit shall be granted to erect or maintain within the limits above provided, any morgue, undertaking parlors, or room or place used solely or mainly for purposes mentioned in § 1 hereof; and if any such permit has been heretofore issued the same shall be and is hereby revoked and canceled.” The 'amended ordinance was then adopted. By its terms it provided that it should take effect and be in force ten days from and after its passage and publication. The ordinance was published May lYth and 20th, 1919. Plaintiff was present at one of the meetings of the city council. He knew about the ordinance. In the meantime the work of excavation proceeded. Plaintiff made a contract to erect the building. On May 17th, 1919, he secured from the. city’s superintendent of buildings a permit to build upon the premises a building to be used as a morgue. On Oct. 26th, 1919, plaintiff was arrested for violation of the ordinance. Upon trial before the police magistrate he was convicted and fined $100. Plaintiff appealed from the judgment of conviction. Later, in the district court, upon trial of such appeal, the jury disagreed. 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 [171] is located), bas since the organization of the city been occupied mainly for residence purposes; that, likewise, the portion of the city north of 6th avenue north has been occupied mainly for residence purposes; that the business portion of the city lies generally in the territory between the N. P. By. and the G-. N. By. (south, and north, respectively, of the residence portions). This offer was rejected upon the grounds that plaintiff sought injunctional relief based upon the invalidity of the ordinance. 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 [172] ordinance it declares, in effect, that undertaking establishments are nuisances per se if located and maintained within those parts of the city occupied mainly for residences. 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 [173] íbe very terms of tbe ordinance, a location within territory, partly devoted to business purposes, may be prohibited because such territory is “occupied mainly for residences.” In Phillips v. Denver, 19 Colo. 179, 41 Am. St. Pep. 230, 34 Pac. 902, the ordinance involved, provided that no livery stable should be located in any block where a school building was situated or in any block opposite to a block where a school building was situated. The court stated that the record did not show the size or dimension of blocks in Denver nor show that the blocks were of uniform dimensions; therefore, there was no definite distance from school buildings within which the construction and maintenance of livery stables were prohibited by the ordinance. It was held invalid. In St. Paul v. Schleh, 101 Minn. 425, 118 Am. St. Pep. 638, 112 N. W. 532, the ordinance involved prohibited the location of a woodyard within 150 feet of any inhabited portion of any residence district without first securing the consent and permission of the common council; the court stated that in a general sense the residence portion of a city may be distinguished from the central business portion; but it would be difficult to locate any definite line between business and residence sections. If the ordinance meant the general outlying residence portion, what did it mean by the inhabited portion of such residence district? Did it mean within 150 feet of any house occupied as a residence ? Or, did it mean that territory embraced within a circle, the diameter of which is 300 feet, wherein the majority of houses are residences ? Or, did it mean a block, a ward, or some other division ? The ordinance was held void for uncertainty. However, in People ex rel. Keller v. Oak Park, 266 Ill. 365, 107 N. E. 636, an ordinance was upheld which provided that no public automobile garage should be constructed on any site where two thirds of the buildings within a radius of 500 feet thereof were used exclusively for residence purposes. The prohibited territory in such ordinance was definitely ascertainable.. Consonant with the principles deducible from the above-stated cases, and, in accordance with the well-recognized principle of law that a municipal ordinance must be definite and certain, I am clearly of the opinion that the ordinance involved herein is indefinite and uncertain and, therefore, is invalid. The judgment of the trial court should be affirmed. BiRdzell, Oh. I., and Guace, and ChuistiaNsoN, JJ., concur.