The Bemidji daily pioneer. [volume] (Bemidji, Minn.) 1904-1971, 1914-04-28
Judge Stanton Files Order Restrain.
ing City Of Bemidji From Enforc-
ing Third Street Ordinance
MEMORANDUM EXPLAINS LAW
Jurist Cites State Constitution Show.
ing that Act of Council was in Di-
rect Violation to Article

day, has granted to Hoganson Bro
theirs an injunction restraining the
city and it's officers from enforcins
General Ordinance No. II, which
seeks to prevent the erection Of
buildings within three feet of the
property line on the north side OF
Third Street. In the litigation At:
torney M. j. Brown appeared for the
plaintiffs and P. j. Russell, city at,
torney, presented the argument fol-
the city. The memorandum filed
by Judge Stanton follows: .-
"The city ordinance involved in
this section provides that no build
ing shall be constructed on the north
side of Third Street between Bemidji
Avenue and America Avenue closer
than three feet from the property
line fronting on Third Street.
Is The Ordinance Valid?
SIS this ordinance valid? The an
swer to this question settles this con-
troversy. It is contended by the
city that the ordinance is a valid ex-
ercse of the police power of the city
while on behalf of the plaintiff it is
urged that it is not on the ground
that it is so unreasonable as to be in
valid, and, if enforced, would deprive
plaintiffs of their property without
compensation.
"The city charter (Sec. s. Chapter
d provides that the city council
shall have ''the full power and au-
thority to make such ordinances as it
shall deem eXpedient for the govern
ment good order Of the city, for the
protection of the public and of the
public health, comfort and safety"
Owner May Suit Himself
at is fundamental law that the
city council may, under such an Or
dinance, require the owner of a lot
TO so Use it that the public health,
comfort and safety will be best con-
served and to this end its police pow
err may be exercised. But it is also
fundamental that such owner has the
right to erect SUCH. buildings cover
ing such portions thereof as he
chooses, and put his property, as thus
inn, To -
which suits his pleasure, provided
that in so doing he does not imperil
or threaten harm to others. Restric-
lions upon the use of property can
only be imposed upon the assumption
that they are necessary for the health
comfort or general welfare Of the
public; and any law abridging rights
TO a use of property which does not
infringe the rights Of others, or
which limits the use of property be-
yond what is necessary to provide for
the welfare and general security of
the public cannot be included in the
police power of municipal govern
ment.
Curran B. P. Company v. City
of Denver, 1O7 Pac. 261. 81 L.
r. A. On. S. 544; ..
Wilson v. Cooke, 100 Pac..
$685., "A L. r. A. On. s. 1890.
No Express Authority
"The city charter confers no express
authority upon the council to re.
quire buildings to be erected at any
designated distance back of the pro-
perty line; and, hence, it is only by
virtue of it's power to enact police re-
gulations that the city can assume
to ACT in passing the ordinance in
question; and consequently the Or
dinance is invalid if it appears tha1
it is unreasonable. .........
"The plaintiffs purpose the cree
ton of store building on their lo'
on the north side of Third Street
Why should they not be permitted tt
cover the entire lot if they desire t
do so? In what respect would theil
doing so injure the health, moles
the comfort, or endanger the safet.
of the public? am unable to I'm
derstand how it would do either.
seems clear to me that the restriction
is unreasonable, arbitrary and oppres
sive.
IT, "While generally it is for the
legislative body to determine
what laws are required to pro-
tect and secure the public
health, comfort and safety, un-
der the guise of police regula-
tions it may not arbitrarily in
fringe upon personal or pro-
perty rights; and it's determine
ton as to what is proper ex
ercise of the power is not final
or conclusive, but is subject to
the scrutiny Of the courts" In.
re Peter Jacobs, SO N. Y. SO.
Violates State Constitution
Further, the ordinance plainly vic
lates Sec 13, Article /. of the Stat
Constitution, which provides tina
Private property shall not be taken
destroyed or damaged for public use
without just compensation thereto
los y q. &