The Bismarck tribune. [volume] (Bismarck, N.D.) 1916-current, 1925-06-15
CITY Z0NING
LAW UPHELD
IN DECISION
w. H. Hughes Restrained
From Continuing Erection
of Apartment House
PERMANENT INJUNCTION
Judge Jansonius Holds Act
of State Legislature
Is Constitutional
PERMANENT INJUNCTION

Judge Fred Jansonius, who handed
down decision late Saturday after
noon making permanent the tenn
porary injunction issued to the City
of Bismarck by Judge Berry against
W. II. Hughes, restraining him from
continuing with the erection of
four-family dwelling at the corner of
Seventh street and Avenue c. The
city alleged in its suit against
Hughes that the building was not in
conformity with the zoning ordinance
enacted under authority Of the 1923
zoning act Of the state legislature.
The allegation was that the building
was flush on the sidewalk line on
the street when the zoning ordinance
required it to be 10 feet from the
property line, and that it was Is
leet back on another street when the
ordinance required that it be 20 feet
from the property line.
Law Violated
There is absolutely no question
but that the building as it is being
erected is in violation of the ordi-
nance of the city," Judge Jansonius
stated in his decision.
ut is conceded that the lot is in
the district known as "A Residential
District" So, the only question
before this court is the constitution
allty Of the Act.
ut is elementary that every rea-
sonable presumption is in favor Of
the corstitutionality of a statute en-
acted by the legislature and approved
by the governor.
"The presumption is conclusive
unless it is clearly shown that the
enactment is prohibited by the state
or federal constitution.
"TLe provision of the constitution
this act is declared to violate is
the prohibition against taking pri-
vate property for public use with
out compensation.
Community Welfare
"This provision of our fundamcn-
tai law cannot, of course, be in
volved, and if citizen is being de-
prived Of his property without COM
pensation, the courts should protect
him. But this provision of the
state and federal constitution, does
not mean that a person can put his
property to any use he may wish.
The provisions of the constitution
do not extend so far as to deprive
the state of the power to control the
conduct of the individual as to pro-
tect the welfare of the community.
"By protecting the individual in
his property. the state did not part
with the power to protect .iself or to
promote its general we'll Being.
"Where the interests Of the in
dividual conflict with the interests
of the community, such individual
interest is subordinate to the gen.
eral welfare. There is usually a
reciprocity of benefits resulting
from limitations imposed upon the
use Of property by law.
ut has always been held that the
government in its exercise Of the
police power may impose restrictions
upon the use of property in the in
terests of public health, morals and
safety.
''1n later years legislatures have
gone step further. and courts have
imposed for the promotion of the
eral prosperity of the community,
and it is upon the latter theory this
law stands.
Adds to Beauty
"The purpose of the law is to en-
able cities to grow and develop in
an orderly and harmonious wav.
The building line provision of the
zoning ordinance adds to the beauty
and convenience of the whole COM
munity.
"It is my conclusion that this or
dinance, adopted in pursuance of
legislative sanction, is not unconsti-
tutional.
"The evidence shows that the de-
fendant has expended some $4,000
for a foundation, that will be ex-
tremely hard to remove. know Of
no way this court can make an ex-
ception in this case. II the defend
ants are not required to obey the
zoning ordinance then, Of course, no
one else is.
Law Constitutional
"If the law is constitutional: and
in my opinion it is, then all are
bound by its provisions. if it is un-
constitutional then no one is bound
by it: ,.<s. ,o,+.na. t,.+ IN.
= junction is not the proper remedy,
but that the city must enforce this
ordinance by use of the penal law.
"The answer to this contention is
found in Section 8 of the law. which
provides that city in addition to
other remedies may institute any
appropriate action or proceeding to
prevent such unlawful erection
to restrain, correct or abate such
violation.
"An order may therefore be pre-
pared making permanent the tenn
rorary Injunction issued by Judge
Berry at the former hearing"
KEEL CANAL TRAFFIC GROWS.
Berlin. June 15.-Traffic through