Robinson v. Otis (1916) · DecisionDepot

Robinson v. Otis

Name: California Superior Court Tentative Rulings
Creator: DecisionDepot
License: https://creativecommons.org/licenses/by-nc/4.0/

California Court of Appeal Jun 16, 1916 No. Civ. No. 1873.Published

Before: Kerrigan

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Holding. The court held that a municipality has the police power to regulate the moving of buildings on its streets and that a city council's denial of a permit is conclusive absent a showing of fraud or manifest abuse of discretion.

Issues

Did the city council have the power to enact an ordinance regulating the moving of buildings on city streets?
Was the council's refusal to issue a permit an abuse of discretion warranting judicial relief?

Disposition. reversed

Quotations verified verbatim against the opinion

“the city has the right to pass an ordinance of the character mentioned.”

“A certain discretion in matters of this character must necessarily be vested in the governing body of a municipality; and its conclusion on the subject, in the absence of fraud or circumstances disclosing a manifest abuse of such discretion, is conclusive”

Synopsis

APPEAL from a judgment of the Superior Court of Alameda County. William H. Donahue, Judge.

The facts are stated in the opinion of the court.

KERRIGAN, J.

This is an appeal from a judgment awarding a writ of mandate. The respondent herein petitioned the superior court of the county of Alameda for a writ of

mandamus

commanding the mayor and members of the council of said city of Alameda to issue a permit to him to move a certain building over the streets of the city. The petition shows that there exists an ordinance of the city of Alameda regulating the moving of buildings upon its streets, which in substance provides for the issuance of a permit upon written application showing the consent of certain property owners, the filing of a bond, and the character of building to be removed, and prohibits such removal in the absence of the required permission. The plaintiff made application, and the matter came on for hearing in regular session of the council; and after receiving evidence for and against the issuance of the permit, the council denied the application, whereupon plaintiff filed his petition for the writ aforesaid. Defendants demurred to the petition, and upon the overruling of such demurrer declined to answer, whereupon judgment was entered against them, awarding to the plaintiff the writ of

mandamus

as prayed for. From this judgment the defendants appeal.

The only questions involved in the appeal are, whether or not the council had the power to enact the ordinance in question, and if, having such power, its refusal to issue a permit was such an abuse of discretion as to warrant the granting of the relief here sought.

The city of Alameda by its charter is given authority as a municipal corporation to “manage and control the streets, roads and highways, and to permit, regulate or prohibit the placing of obstructions thereon, and to ordain, make and enforce within the limits of the city all necessary police, sanitary and other laws and regulations.” (Stats. 1907, p. 1059; Const., art. XI, sec. 11.) Under this grant of power there

[771]

can be no question but that the city has the right to pass an ordinance of the character mentioned. The authority of municipalities to enact ordinances under its police power has received consideration in a great many eases in numerous jurisdictions. It would be a useless task to review those authorities, and a mere reference to a case where the power was exercised under facts similar to those here will be sufficient. In

Robinson v. Otis

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Synopsis

KERRIGAN, J.

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