Beem v. Davis ( 1918 )

RICE, J.

On April 17, 1916, the plaintiff filed a petition in the district court for a writ of mandate directed against the defendants. The defendants included the duly elected, acting and qualified trustees of the village of Filer, in Twin Falls county; one L. D. Allen, who was alleged to be the duly elected, acting and qualified constable of said village, and the Gem State Lumber Company, a corporation. The writ was sought in order to command the officers of the village to enforce the provisions of an ordinance fixing the fire limits therein, and to require the lumber company to obey the terms and provisions of the said ordinance. A general demurrer interposed to the petition was overruled. It would appear from the record that an answer was thereafter filed, but the answer does not appear in the transcript. The action was tried, and resulted in a judgment directing the issuance of a peremptory writ. The defendants appeal.

The building which it is claimed was erected in violation of the ordinance is a wooden lumber shed, 20 ft. wide and 150 ft. long. It is contended by appellants that the structure complained of is not prohibited by the ordinance, section 2 of which reads as follows: “No person or persons shall erect or cause to be erected in the above described restricted territory, any store building, office building, garage, or any other building, except bams and residences, unless the same shall be constructed with exterior walls built of brick, stone, adobe or concrete, and shall .have a metal, slate, tile, brick, concrete or composition roof, and the side walls of such building shall extend two feet above the roof.” It is argued that in construing this section of the ordinance the rule known as that of “ejusdem generis” should be applied, and that only buildings of the same general class as those enumerated are prohibited. Where, however, the meaning of an ordinance is clear, courts are not obliged to resort to the various rules of construction in order to arrive at the intent of the enactment. It is plain that all buildings are prohibited, except bams and residences. Nor should the suggestion that the structure complained of was denominated by appellants as a shed, and therefore not a building, receive consideration. This shed is a building within the meaning of the ordinance.

The serious questions are whether the relator may bring this proceeding and whether mandamus is the proper remedy.

It has been held that it is not necessary that a relator, who is a citizen of the municipality, show a special injury to himself or his property to entitle him to proceed by mandamus to compel public officers to enforce a municipal ordinance. (2 McQuillin on Municipal Corporations, see. 804; State ex rel. Wear v. Francis, 95 Mo. 44, 8 S. W. 1; People v. Ahearn, 124 App. Div. 840, 109 N. Y. Supp. 249; People ex rel. Pumpyansky v. Keating, 168 N. Y. 390, 61 N. E. 637; People v. Stover, 145 App. Div. 259, 130 N. Y. Supp. 92.)

It is contended that the relator has a plain, speedy and adequate remedy in the ordinary course of law, and that therefore the writ should not issue. Art. 5, sec. 1 of the constitution provides that “the distinctions between actions at law and suits in equity, and the forms of all such actions and suits, are hereby prohibited; and there shall be in this state but one form of action for the enforcement or protection of private rights or the redress of private wrongs, which shall be denominated a civil action.” We think the existence of an adequate remedy in the ordinary course of legal procedure, either legal or equitable in its nature, would prevent the issuance of the writ.

It is suggested that the relator might have prevented the erection of the building by an injunction, and that the remedy would be adequate. A person owning property within the fire limits of a city or village who will suffer serious or irreparable injury to his property by reason of the erection of a building in violation of the provisions of an ordinance fixing the fire limits may prevent the erection of such building by injunction. (Bangs v. Dworak, 75 Neb. 714, 106 N. W. 780, 5 L. R. A., N. S., 493; First Nat. Bank v. Sarlls, 129 Ind. 201, 28 Am. St. 185, 28 N. E. 434, 13 L. R. A. 481. See, also, Kaufman v. Stein, 138 Ind. 49, 46 Am. St. 368, 37 N. E. 333.) We do not think, however, that the remedy by injunction in this ease is adequate. It was shown that petitioner and others appeared before the board of trustees of the village, and requested them to preVent the erection of the building at a time when the structure was only partially erected, and that the village trustees refused to act. It was further shown that before the trial of the cause the building was completed. Injunction in the ordinary course of law is a preventive remedy, and in this case it is evident that injunction would not have secured the required relief, as the building was partially completed when the action was commenced.

It was further shown that the petitioner had erected a small outhouse on his premises in violation of the ordinance. In People v. Stover, supra, it was pointed out that in equity if the plaintiff was also a violator of the ordinance it would be ground for denying him equitable relief, but that this was no reason why he should be denied the remedy of mandamus.

By an action for injunction the relator would be seeking in a private action a remedy for his own private injury. The relief sought in the one case is not the same as that sought in the other. We do not think that because a private citizén may redress his private injury in a private suit, at law or in equity, he is thereby deprived of his right as a citizen to require public officials to perform a legal duty. For a discussion of principles somewhat analogous, see Goodell v. Woodbury, 71 N. H. 378, 52 Atl. 855.

It is contended that mandamus will not lie to compel the doing of any act which calls for the exercise of discretion in the doing of the act; nor to define the duties of an officer under the statutes and compel him to perform such duties as defined; nor to compel the performance by a public officer of his duties generally. (People v. Darwin, 81 Wash. 1, 142 Pac. 441; State v. Brewer, 39 Wash. 65, 109 Am. St. 858, 4 Ann. Cas. 197, 80 Pac. 1001; People v. Busse, 238 Ill. 593, 87 N. E. 840, 28 L. R. A., N. S., 246.) This is not such a case. This is not a case where there is a threatened violation of the ordinance in the future, nor where the writ is sought to compel the performance of official duties generally. This is a case of a building erected in violation of the village ordinance, and the existing and continued maintenance thereof in violation of the ordinance, and the writ is sought to compel the enforcement of the ordinance with reference to a specific violation thereof.' It is a proper case for the exercise of the writ. In the ease of People v. Busse, supra, the court in distinguishing the case of Brokaw v. Highway Commrs., 130 Ill. 482, 22 N. E. 596, 6 L. R. A. 161, observed that in that case, “The obstruction then existed in the highway. The mandate of the court was in reference to an existing condition. A specific act was directed. It was not necessary to supervise generally the official conduct of officers in reference to violations of the law which it was alleged would take place in the future.” (See, also, Moores v. State, 71 Neb. 522, 115 Am. St. 605, 99 N. W. 249.) The fact that certain details are left to the discretion of the authorities does not prevent relief by mandamus. (Peotone etc. Dist. v. Adams, 61 Ill. App. 435.) Writs of mandate have been granted frequently to compel repairs and maintenance of bridges and highways where it appeared that the details were left to the discretion of the board of officers commanded to perform the duty. (Brokaw v. Highway Commrs., supra; Bigelow v. Brooks, 119 Mich. 208, 77 N. W. 810; State v. Cloud Co. Commrs., 39 Kan. 700, 18 Pac. 952; People v. Stover, supra; Inhabitants of Brunswick v. City of Bath, 90 Me. 479, 38 Atl. 532.)

Sec. 5 of the ordinance contains the following provision: “Any building which is built in violation of any section of this ordinance, shall be immediately demolished or rebuilt to conform with the sections of this ordinance. It shall be the duty of the city marshal to see that this ordinance is enforced.” Appellants contend that the village did not have power to enact an ordinance providing for the demolition of a building erected in violation of its provisions. The statute under which the_ordinance was passed provides that the village shall have power to “prescribe arid alter the limits within which no building shall be constructed except of brick, stone or other incombustible material, with fire-proof roof, and after such limits are established, no special permit shall be given for the erection of buildings of combustible material within said limits.” While the statute does not in express terms provide that a city or village may summarily destroy a building erected in violation of the provisions of an ordinance prescribing fire limits, we think such power is implied in order to make the ordinance effective.. (28 Cyc. 741-743; Baumgartner v. Hasty, 100 Ind. 575, 50 Am. Rep. 830; Lemmon v. Guthrie, 113 Iowa, 36, 86 Am. St. 361, 84 N. W. 986; Micks v. Mason, 145 Mich. 212, 108 N. W. 707, 11 L. R. A., N. S., 653; McKibbin v. Ft. Smith, 35 Ark. 352; Hine v. New Haven, 40 Conn. 478.) We do not consider it important that the statute or ordinance do not in express terms declare a building erected in violation of such an ordinance to be a nuisance. (Klingler v. Bickel, 117 Pa. St. 326, 11 Atl. 555.)

It was shown at the trial that about the time the building complained of was being constructed, the trustees undertook to suspend the ordinance so as to permit the erection of this building. The record is as follows: “It was moved by Davis, and seconded by Small, that Ordinance No. 21, so far as Lots 5, 6, 7, 8, 9 and 10, in Block 20, are concerned, be repealed until further notice. Upon roll call the following trustees voted ‘Aye’: Case, Davis, Small, and Edwards. Absent: Stevens.” The clerk of the board testified that these proceedings were published in the following issue of the Filer Journal. This proceeding could not operate as a repeal of the ordinance. An ordinance can be repealed only by pursuance of the same method necessary for its enactment. Special permits are prohibited by Rev. Codes, sec. 2238, authorizing the fixing of fire limits by a village. (Eichenlaub v. St. Joseph, 113 Mo. 395, 21 S. W. 8, 18 L. R. A. 590.)

It remains to determine the officers against whom the writ will run. It does not clearly appear that the appellant Allen was a police officer of the village. The allegation of petitioner is that he is the duly elected, qualified and acting constable of the appellant corporation. The statute provides for the appointment of police officers. A serious objection to a writ issuing to a subordinate officer is pointed out in the case of Alger v. Seaver, 138 Mass. 331. This court held in the case of Conwell v. Village of Culdesac, 13 Ida. 575, 92 Pac. 535, that a village police officer is removable at the pleasure of the board of trustees of a village. The board of trustees by removing the police officer might deprive Mm of his authority to act, and thus render the writ nugatory. Rev. Codes, sec. 2231, provides that the chairman of the board of trustees of the village shall cause the by-laws and ordinances thereof to be carried into effect. The chairman of the board is thus declared to be the executive officer of the village. Sec. 2223 provides that the corporate powers and duties of every village shall be vested in a board of trustees, to consist of five members. Sec. 2229 provides that the board of trustees of a village may appoint such night watch and police as may be necessary. Since the appointment and removal of ministerial officers is vested in the board, the writ should be -directed to the board of trustees and to the chairman thereof. The petition fails to designate the chairman of the board, and to that extent is insufficient.

The cause is remanded to the court below with instructions to permit the relator to amend his petition by designating which of the village trustees is chairman, submitting proof of the fact, and the court is directed to amend the writ so that it shall be directed to the persons composing the board of trustees of the village and the chairman thereof, and to issue the peremptory writ as so amended. No costs awarded on this appeal.

Budge, C. J., and Morgan, J., concur.