Village of Durand v. Love

This is a bill to abate, as a nuisance, a wooden building moved from one location to another within the fire limits of the village of Durand, in violation of an ordinance. The ordinance declares such building a public nuisance and requires its abatement on order of the common council. The authority to adopt such ordinance is conferred by 1 Comp. Laws 1929, §§ 1549, 1667 et seq.

Section 8 of the ordinance deals with wooden buildings. Among other things, it declares it unlawful to remove such a building from one location to another within the fire limits "without first having obtained from the chairman of the building committee of said village (a permit) in writing so to do." No qualifications or standard of building proper to be removed nor conditions or restrictions on the discretion of the chairman to grant or deny such permits are provided, as they are in connection with permit in other sections of the ordinance. It thus appears to have been the intention, as it is the obvious construction, that the authority attempted to be conferred on the chairman by section 8 was unlimited and arbitrary. Section 8, therefore, is void. Harrigan Reid Co. v. Burton, 224 Mich. 564 (33 A.L.R. 142).

It is further contended that the whole ordinance is invalid for want of publication. Section 1 reads:

"SEC. 1. That all that portion of the village of Durand described and shown on a certain map and blue print marked 'Exhibit A' now on file in the office of the clerk of said village the same being a part of this ordinance, be and the same is hereby designated and declared to be the fire limits of the village of Durand."

Exhibit A was not published with the ordinance. Counsel for plaintiff urges that its publication was not necessary because it was a public record to which the ordinance could refer without publication of it.

An ordinance sometimes may refer to a public record already established by lawful authority and become effective without publication of such record as part of the ordinance. But Exhibit A was drafted solely for the purpose of the ordinance and to define the fire limits, had no prior official approval and had no purpose, use, force, or official sanction except as it was given by and as part of the ordinance. An ordinance cannot at the same time establish a paper as a public record and also incorporate it by reference as a previously established public record. Without publication of the map, the ordinance was not published in full, did not comply with the statute, and is void. Thompson Scenic R. Co. v.McCabe, 211 Mich. 133.

Decree dismissing the bill affirmed, with costs.

BUTZEL, C.J., and WIEST, CLARK, McDONALD, POTTER, SHARPE, and NORTH, JJ., concurred.