City of Sioux Falls v. Kirby

Citations

• 6 S.D. 62
• 25 L.R.A. 621
• 60 N.W. 156
• 1894 S.D. LEXIS 121

Syllabus

<p>1. An action to recover a penalty prescribed by a municipal ordinance, not made a criminal act by the general laws of the state, but forbidden by such ordinance, is a civil action, and may be brought to this court by appeal.</p> <p>2. A municipal corporation possesses the follpwing- powers, and no others: First, those granted in express terms; second, those necessarily and fairly implied, or incident to the powers expressly granted; third, those essential to the declared objects and purposes of the corporation, not simply convenient, but indispensable.</p> <p>3. The right of a party to exercise dominion over his own property, and to build upon and improve the same, in accordance with the general laws of the land and municipal ordinances applicable alike to all citizens of a city, is secured by the fundamental principles of the constitution; and he cannot be compelled by the municipal government under which he lives to hold that right subject to the power of granting or refusing-a permit to build upon or otherwise improve his property, vested in a city building inspector, from whose decision there is no appeal. Kellam, J., dissenting.</p> <p>4. An ordinance of the city of Sioux Falls which prescribed that before any person can erect any building or any addition thereto, within the city limits, he must first apply to and obtain from the city building inspector a permit, and who may g-rant or refuse such permit, and from whose decision there is no appeal, and which subjects such party to a penalty in case he builds without such permit, violates the constitutional rights of the citizen, in that it makes the right of the owner of property to improve and use the same dependent .upon the decision of the city building inspector, and is therefore void. Kellam, J., dis-seating on the ground that the ordinance in question does not contemplate or allow the inspector to arbitrarily gi*ant or refuse a permit, but authorizes him to decide whether the proposed building will or w