Corson, P. J.
The respondent and defendant was arrested find tried upon a complaint charging him, in substance, with having willfully refused to take out a building permit and to pay the prescribed fee therefor, after being requested so to do by the building inspector of the city of Sioux Falls, contrary to the ordinance of said city. The respondent was convicted in the city police court, but on appeal to the circuit court he was acquitted; that court holding that the provisions of the ordinance requiring a party to take out a permit, and pay a fe,e therefore, were void. The case was brought to this court from the circuit court by aippeal.
The respondent moved in this court to dismiss the appeal upon the ground that the case should have been brought to this court by writ of error, and not by appeal. In a similar case (City of Huron v. Carter, 57 N. W. 947) this court held that the act charged not being punishable by imprisonment, was properly brought to this court by appeal. Following the decision of that case, the motion to dismiss upon that ground is denied.
The respondent relied on this motion to dismiss the appeal upon the further ground that the notice of appeal was not properly served upon the clerk of the circuit court; but after a care[65]*65ful examination of the affidavits read on the hearing, and the original records in this court, we are inclined to the opinion that the notice of appeal was properly served, and so hold.
The only question that we shall consider on this appeal is the one upon which the circuit court ruled, namely, that so much of the city ordinance as required the respondent to take out a permit, and pay the prescribed fee therefore, was void.
Section 100 of the ordinance reads as follows: “Building Permits. — Any person desiring to erect, alter or repair any building to be used exclusively not for business purposes, shall apply to said building inspector for a permit for such purpose and furnish him a written statement showing the location, dimensions and manner of construction of the proposed building, stating the material to be used, the manner of construction of chimneys and stove pipe connections, and exhibit to said inspector any plans or specifications of the same which he may have. If satisfied that such building, alteration or repair is in compliance with the provisions of this chapter, the building inspector shall give his permit for such proposed building or structure on payment of the fees prescribed in the next section. ” Section 101 of the ordinance prescribed the fee to be paid for such permit, being from $1 to $4 for buildings not exceeding in value $5,000, and 50 cents additional for each $1,000, above $5,000, with certain exceptions not necessary now to be noticed, and section 126 provides that a fine not less than $5 nor more than $100 may be imposed for a violation of the ordinance. The learned counsel for the respondent contends that the city council has no power under the act of 1890, providing for the incorporation of cities, to require the respondent to procure a building permit, and pay the prescribed fee therefor. He admits that, under the power conferred upon the city council by the statutes of this state, it has power to pass ordinances to prevent the construction of buildings having dangerous chimneys, ect., within .the city limits, and to provide penalties for [66]*66the violation of such ordinances; but he contends that in this case there is no charge that respondent has erected any defective chimney or other appliance in violation of any ordinance, and that, therefore, no offense is charged. We are inclined to agree with counsel in his contention.
By chapter 37, art. 5, Laws 1890, it is provided that: “The city council shall have the following powers, * * * (50) To prescribe the limits within which wooden buildings shall not be erected or placed or repaired without permission, and to direct that all and any buildings within said limits (which shall be known as the fire limits),' when the same shall have been damaged by fire, decay, or otherwise, to the extent of fifty per cent of the value shall be torn down or removed, and to prescribe the manner of ascertaining such damage. (51) To prevent dangerous construction and condition of chimneys, fire places, hearths, stoves, stove pipes, ovens, boilers, and apparatus used in and about any building and manufactory, and to cause the same to be moved or placed in a safe condition where considered dangerous; to regulate and prevent the carrying on of manufactories dangerous in causing and promoting fires; to prevent the deposit of ashes in unsafe places, and cause all such buildings and inclosures as may be in a dangerous state to be put in a safe condition. ”
Mr. Dillon, in his work on Municipal Corporations, defining the powers of such corporations, says; “It is a general and undisputed proposition of law that a municipal corporation possesses and can exercise the following powers, and no others: First, those granted in express words; second,- those necessarily and fairly implied, - or incidental to the powers expressly granted; third, those essential to the declared objects and purposes of the corporation, not simply convenient, but indispensable.” 1 Dill. Mun. Corp. (4th Ed.) § 89, and cases there cited. And this is substantially the rule as laid down in Treadway v. Schnauber, 1 Dak. 236. 46 N. W. 464, by the late territorial supreme court. It will be observed that no power is expressly [67]*67granted to the city council to require of a party desiring to con7 struct a building, or an addition to one existing, to procure a permit therefor,' and that no express power is conferred upon the city council to require a fee to be paid for a permit. The city council, by the ordinance in'controversy, it will be noticed, has not. only assumed to require a permit to be procured for the erection of any building or structure within the city limits, and to require a fee to be paid therefor, but has provided that this permit can only be obtained from the inspector when he is satisfied that such building, alteration or repair is in compliance with the provisions” of that chapter. The ordinance is therefore much broader and more comprehensive in its scope than the power conferred by the statute referred to, and cannot be justified, it seems to us, as a reasonable exercise of the authority conferred by the statute. The right of a person to use and improve his property, as he may deem proper, consistent with law, is a constitutional right, of which he cannot be deprived at the mere will and pleasure of a city council, or of any officer appointed by it. While the city council may pass any ordinance that may be proper and necessary as to the manner of construction of buildings, chimneys and other fire apparatus so as to protect the residents of the city from the dangers of fire, and may prescribe such penalties for the violation of -the same as are within the limits provided by statute, it cannot impose upon the citizen unnecessary burdens, and in effect permit him to improve his property, or refuse to permit him so to do, as the building inspector may determine. Section 100, of the ordinance does not contain any regulations to guide the landowner in the construction or alteration of a building upon his land, but requires of such landowner, before any such building can be constructed or alteration made, that he must apply to the'inspector for a permit, which he is required to give when he is satisfied that such building or alteration is in compliance with the ordinance. It does not merely forbid the erection of any building that is hazardous, or which exposes property or per[68]
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Corson, P. J.
The respondent and defendant was arrested find tried upon a complaint charging him, in substance, with having willfully refused to take out a building permit and to pay the prescribed fee therefor, after being requested so to do by the building inspector of the city of Sioux Falls, contrary to the ordinance of said city. The respondent was convicted in the city police court, but on appeal to the circuit court he was acquitted; that court holding that the provisions of the ordinance requiring a party to take out a permit, and pay a fe,e therefore, were void. The case was brought to this court from the circuit court by aippeal.
The respondent moved in this court to dismiss the appeal upon the ground that the case should have been brought to this court by writ of error, and not by appeal. In a similar case (City of Huron v. Carter, 57 N. W. 947) this court held that the act charged not being punishable by imprisonment, was properly brought to this court by appeal. Following the decision of that case, the motion to dismiss upon that ground is denied.
The respondent relied on this motion to dismiss the appeal upon the further ground that the notice of appeal was not properly served upon the clerk of the circuit court; but after a care[65]*65ful examination of the affidavits read on the hearing, and the original records in this court, we are inclined to the opinion that the notice of appeal was properly served, and so hold.
The only question that we shall consider on this appeal is the one upon which the circuit court ruled, namely, that so much of the city ordinance as required the respondent to take out a permit, and pay the prescribed fee therefore, was void.
Section 100 of the ordinance reads as follows: “Building Permits. — Any person desiring to erect, alter or repair any building to be used exclusively not for business purposes, shall apply to said building inspector for a permit for such purpose and furnish him a written statement showing the location, dimensions and manner of construction of the proposed building, stating the material to be used, the manner of construction of chimneys and stove pipe connections, and exhibit to said inspector any plans or specifications of the same which he may have. If satisfied that such building, alteration or repair is in compliance with the provisions of this chapter, the building inspector shall give his permit for such proposed building or structure on payment of the fees prescribed in the next section. ” Section 101 of the ordinance prescribed the fee to be paid for such permit, being from $1 to $4 for buildings not exceeding in value $5,000, and 50 cents additional for each $1,000, above $5,000, with certain exceptions not necessary now to be noticed, and section 126 provides that a fine not less than $5 nor more than $100 may be imposed for a violation of the ordinance. The learned counsel for the respondent contends that the city council has no power under the act of 1890, providing for the incorporation of cities, to require the respondent to procure a building permit, and pay the prescribed fee therefor. He admits that, under the power conferred upon the city council by the statutes of this state, it has power to pass ordinances to prevent the construction of buildings having dangerous chimneys, ect., within .the city limits, and to provide penalties for [66]*66the violation of such ordinances; but he contends that in this case there is no charge that respondent has erected any defective chimney or other appliance in violation of any ordinance, and that, therefore, no offense is charged. We are inclined to agree with counsel in his contention.
By chapter 37, art. 5, Laws 1890, it is provided that: “The city council shall have the following powers, * * * (50) To prescribe the limits within which wooden buildings shall not be erected or placed or repaired without permission, and to direct that all and any buildings within said limits (which shall be known as the fire limits),' when the same shall have been damaged by fire, decay, or otherwise, to the extent of fifty per cent of the value shall be torn down or removed, and to prescribe the manner of ascertaining such damage. (51) To prevent dangerous construction and condition of chimneys, fire places, hearths, stoves, stove pipes, ovens, boilers, and apparatus used in and about any building and manufactory, and to cause the same to be moved or placed in a safe condition where considered dangerous; to regulate and prevent the carrying on of manufactories dangerous in causing and promoting fires; to prevent the deposit of ashes in unsafe places, and cause all such buildings and inclosures as may be in a dangerous state to be put in a safe condition. ”
Mr. Dillon, in his work on Municipal Corporations, defining the powers of such corporations, says; “It is a general and undisputed proposition of law that a municipal corporation possesses and can exercise the following powers, and no others: First, those granted in express words; second,- those necessarily and fairly implied, - or incidental to the powers expressly granted; third, those essential to the declared objects and purposes of the corporation, not simply convenient, but indispensable.” 1 Dill. Mun. Corp. (4th Ed.) § 89, and cases there cited. And this is substantially the rule as laid down in Treadway v. Schnauber, 1 Dak. 236. 46 N. W. 464, by the late territorial supreme court. It will be observed that no power is expressly [67]*67granted to the city council to require of a party desiring to con7 struct a building, or an addition to one existing, to procure a permit therefor,' and that no express power is conferred upon the city council to require a fee to be paid for a permit. The city council, by the ordinance in'controversy, it will be noticed, has not. only assumed to require a permit to be procured for the erection of any building or structure within the city limits, and to require a fee to be paid therefor, but has provided that this permit can only be obtained from the inspector when he is satisfied that such building, alteration or repair is in compliance with the provisions” of that chapter. The ordinance is therefore much broader and more comprehensive in its scope than the power conferred by the statute referred to, and cannot be justified, it seems to us, as a reasonable exercise of the authority conferred by the statute. The right of a person to use and improve his property, as he may deem proper, consistent with law, is a constitutional right, of which he cannot be deprived at the mere will and pleasure of a city council, or of any officer appointed by it. While the city council may pass any ordinance that may be proper and necessary as to the manner of construction of buildings, chimneys and other fire apparatus so as to protect the residents of the city from the dangers of fire, and may prescribe such penalties for the violation of -the same as are within the limits provided by statute, it cannot impose upon the citizen unnecessary burdens, and in effect permit him to improve his property, or refuse to permit him so to do, as the building inspector may determine. Section 100, of the ordinance does not contain any regulations to guide the landowner in the construction or alteration of a building upon his land, but requires of such landowner, before any such building can be constructed or alteration made, that he must apply to the'inspector for a permit, which he is required to give when he is satisfied that such building or alteration is in compliance with the ordinance. It does not merely forbid the erection of any building that is hazardous, or which exposes property or per[68]*68sons to danger from fire; bnt it requires of the landowner that he obtain a permit from the inspector, and pay the prescribed fee therefor, which may be granted or withheld by such inspector, as he may or may not be satisfied that the building complies with the requirements of the ordinance, which, as we have seen, makes no provisions as to what shall be deemed necessary to constitute a safe construction. It is clear that the ordinance in controversy, upon its face, attempts to restrict the right of dominion which every individual possesses over his property, not according to any general or uniform rule, but so as to make the absolute enjoyment of his own property depend upon the arbritary will of the city inspector, and therefore makes the right of the citizen to use his property subject to the will of such inspector, from whose decision no appeal is given. Such an ordinance cannot be sustained. Its provisions are not necessarily or fairly implied from, or incidental to, the power granted the city council. Yick Yo v. Hopkins, 118 U. S. 356, 6 Sup. Ct. 1064; Newton v. Belger, 143 Mass. 598, 10 N. E. 464; State v. Tenant, 110 N. C. 609, 14 S. E. 387; State v. Webber, 107 N. C. 962, 12 S. E. 598; Bills v. City of Goshen. 117 Ind. 221, 20 N. E. 115; Anderson v. City of Wellington, 40 Kan. 173, 19 Pac. 719; May v. People, 27 Pac. 1010, 1 Colo. App. 157; Tugman v. Chicago. 78 Ill. 405. We cannot close the discussion of this section of the ordinance better than by quoting the vigorous language of Mr. Justice Matthews in the case first above cited. He says: “But the fundamental rights to life, liberty, and the pursuit of happiness, considered as individual possessions, are secured by those maxims of constitutional law which are the monuments showing the victorious progress of the race in securing to men the blessings of civilization under the reign of just and equal laws, so that, in the famous language of the Massachusetts bill of rights, the government of the commonwealth ‘may be'a government of laws and not of men,’ for, the very idea that one man may be compelled to. hold his life, or the means of living, or any material right essential to the en, [69]*69joyment of life, at the mere will of another, seems to be intolerable in any country where freedom prevails, as being the essence of slavery itself.”
Section 101 of the ordinance is equally objectionable. While it does not in terms impose a tax upon the landowner who desires to improve his property, it in effect does so. The office of building inspector is created, and he is clothed with, certain powers, not alone for the benefit of those who are about to erect buildings, but for the benefit of the citizens of the municipality generally; and to require a person, before he can be permitted to improve his property, to pay for a permit which is not required of the other residents, imposes a burden upon him not imposed upon the citizens generally. Such a burden cannot be imposed except by express authority. We know of no reason why a landowner should be required to pay a fee for the privilege of improving his property that might not be applied to the removal of a person from one part of the city to another, or to the renting or any other use of property. We are of the opinion that no such fee can be legally required, in the absence of an express legislative power authorizing its collection.
Our conclusions are that the circuit court ruled correctly, and properly instructed the jury to find a verdict for the respondent. The judgment of the circuit court is affirmed.
Fuller, J., concurring.