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28 Pac. 1076, an affidavit or information is appellant, under sections 3787 and 3801, Comp. absolutely necessary in a proceeding to pun

Laws 1888, to recover damages for forcible

and unlawful detention of the lands, subsequent ish for constructive contempt. The peti

to the judgment, and for treble damages, as tioner will be discharged.

provided for by statu-e, the jury found damages for appellant 'o the sum of $800. The

court, on motion, declined to treble the dam(5 Kan. A. 72)

ages. Held error, and that the court should

have trebled the damages. CHUBB V. STEWARD et al.

2. Held, also, that the action was properly (Court of Appeals of Kansas, Northern Depart- brought, under section 3787, Comp. Laws 1888. ment, E. D. March 17, 1897.)

Bartch, J., dissenting.

(Syllabus by the Court.)

Appeal from district court, Carbon counUnder paragraph 4642, Gen. St. 1889, where ty; W. M. McCarty, Judge. & case is brought to this court by petition in er

Action by John H. Eccles against the ror from the district court, in a matter involving less than $100, not only must the record

Union Pacific Coal Company and others to show that the casé belongs to one of the ex- recover damages for forcible and unlawful cepted classes, but, in addition thereto, it must

detainer. There was a verdict for plaintiff, contain the certificate of the judge trying the

the amount of which the court declined to same that it does so belong. (Syllabus by the Court.)

treble; and, from a judgment entered there

on, plaintiff appeals. Modified. Error to district court, Jackson county; La A. Myers, Judge.

Stephens & Smith, for appellant. WilAction by Jeremiah Chubb against Peter lams, Van Cott & Sutherland, for respondH. Steward and Cornelia Steward. Judg

ents. ment for defendants, and plaintiff brings er

MINER, J. Plaintiff, on the 17th day of Auror. Dismissed.

gust, 1891, made settlement under the homeS. T. Price and R. G. Robinson, for plain-stead laws of the United States upon a part tiff in error. Hayden & Hayden, for defend-' of the unoccupied domain in question in this ants in eror.

case, duly obtained his certificate of entry

from the receiver of the United States land WELLS, J. This case is before us at this

office, and otherwise complied with the laws time on a motion filed by the defendants in of the United States with reference thereto, error to dismiss the petition in error, for and has been in possession of the same ever want of jurisdiction, claiming that the rec- since, except 35 acres thereof, which the de ord does not show that the amount in con- fendant, a corporation, has unlawfully, forci troversy is more than $100, exclusive of

bly, and by threats, prevented the plaintifi costs, and that this cause was not certified from occupying; that on the 16th day of to by the trial court as one of the cases men- October, 1894, plaintiff recovered judgmen: tioned and excepted in paragraph 4642, Gen.

against the defendant for the possession o! St. 1889. The plaintiff below, in the argu- said land, and for damages for the unlawful ment of this case, insisted that the record

and forcible detention and forcible and un did show that the action involved more than

lawful entry thereof up to September 5 $100, but a careful examination of the rec

1893; that said judgment remains in full ord satisfies us that such is not the case.

force, and was not appealed from, but was The question, then, is as to what the record

satisfied by the payment of damages anı! must show in cases involving less than $100;

costs; that demand has been made for the and we think, from a careful examination of

possession of said premises, and possessioni the section of the statute referred to, that

refused; that on February 1, 1896, peaceable. not only must the case appear to belong to

possession of said land was delivered to the one of the excepted classes, but the judge plaintiff. This action was brought under of the district court must certify in express

subdivision 1 of section 3787, and section terms that it does belong to one of said

3801, Comp. Laws Utah 1888, to recover damclasses. The motion to dismiss the petition

ages for the forcible and unlawful detenin error will be sustained.

tion of said land, and for the rents, profits. and issues of the same, from the 5th day of

September, 1893, to the 1st day of February. (15 Utah, 14)

1896. Plaintiff alleged and proved that said ECCLES v. UNION PAC. COAL CO. et al.

premises were forcibly detained by the de(Supreme Court of Utah. March 17, 1897.) fendant. In his complaint, the plaintiff askFORCIBLE ENTRY AND UNLAWFUL DETAINER- ed for treble damages. On the trial, the DAMAGES.

jury rendered judgment in favor of the 1. Appellant obtained judgment against the plaintiff, and against the defendant, for the respondent, a corporation, for possession, and for damages resulting from an unlawful and

unlawful and forcible detention of the premforcible entry and detainer of lands he had ob- ises, and assessed his damages therefor at tained from the United States under the home- the sum of $500. Thereupon counsel for stead laws; and the respondent still continued the unlawful and forcible detention of the prem

plaintiff moved the court to treble the damises after demand, and for about two years

ages as found by the jury, and that Judgment after judgment. In an action brought by the be entered in favor of the plaintiff in the

sum of $2,400 and costs. The court overruled the motion, and declined to enter judgment for treble the amount of damages found, but entered judgment for the sum of $800, as found by the jury, to which plaintiff excepted. This refusal is the only error assigned in the record. The respondent did not appeal from either judgment, but is here asking an affirmance of the judg. ment, without trebling the amount of damages.

Subdivision 1, § 3787, Comp. Laws Utah 1888, reads as follows: "Every person is guilty of a forcible detainer who either: (1) by force, or by menaces and threats of violence, unlawfully holds and keeps the possession of any real property, whether the same was acquired peaceably or otherwise." Section 3801, Comp. Laws Utah 1888, as amended by Sess, Laws 1892, p. 45, reads as follows: “If, upon the trial, the verdict of the jury, or if the case be tried without a jury, the finding of the court be in favor of the plaintiff and against the defendant, judgment shall be entered for the restitution of the premises, and if the proceedings be for unlawful detainer after neglect or failure to perform the conditions or covenants of the lease or agreement under which the property is held, or after default in the payment of rent, the judgment shall also declare the forfeiture of such lease or agreement. The jury or the court, if the proceeding be tried without a jury, shall also assess the damages occasioned to the plaintiff by any forci. ble entry, or by any forcible or unlawful detainer, and any amount found due the plaintiff by reason of the waste of the premises by the defendant during the tenancy, alleged in the complaint, and proved on the trial, and find the amount of any rent due, if the alleged unlawful detainer be after default in the payment of the rent; and the judgment shall be rendered against the defendant guilty of the forcible entry, or forcible or unlawful detainer, for three times the amount of the damages thus assessed, and of the rent found due.” Under the act of congress of February 25, 1885 (St. U. S. 1884-85, p. 321, found in 1 Comp. Laws Utah 1888, p. 239), an inclosure of public land of the United States by any corporation, etc., is declared unlawful, and the inclosure of the same, without right, is forbidden and prohibited. This court held, in Taylor v. Buford, 8 Utah, 113, 29 Pac, 880, that “one in possession of land which he holds in violation of the statutes can claim no damages under the estray law for trespassing animals," etc. In U. S. v. Buford, 8 Utah, 173, 30 Pac. 433, this court held, when appellants had erected a fence entirely upon their own lands, which fence inclosed a portion of the public lands of the United States, that they had committed the offense of unlaw. fully inclosing public lands. Buford v. Houtz, 133 U. S. 320, 10 Sup. Ct. 305. Whittaker v. Pendola (Cal.) 20 Pac. 680, the

court said: “The defendant, not having shown any capacity in himself to acquire the government title to the demanded premises, nor any effort or intention to do so, stands in the position of a mere naked trespasser upon the public domain, with an inclosure erected and maintained contrary to the express provisions of the act of congress of February 25, 1885." "Plaintiff had a right to make his homestead entry on the whole tract, notwithstanding the possession of the defendant of the greater portion of it.” The record shows that the jury found the issues in favor of the plaintiff, and against the defendant, and assessed plaintiff's damages in the sum of $800, for the unlawful and forcible detention of the land described in the complaint. The defendant does not seek to set aside this judgment, but asks that the same be affirmed, but not trebled. Section 3799, Comp. Laws Utah 1838, provides that, "on the trial of any proceeding for any forcible entry or forcible detainer, the plaintiff shall only be required to show, in addition to the forcible entry or forcible detainer complained of, that he was peaceably in the actual possession at the time of the forcible entry, or was entitled to the possession at the time of the forcible detainer."

The judgments rendered are conclusive that the appellant was entitled to the possession of the premises at the time of the alleged forcible detainer; that such detainer was forcible; that the damages assessed were for the unlawful detainer alleged in the complaint. So that the only further question for us to consider is whether the damages found by the jury should have been trebled by the court. Chapter 4 of the Code of Civil Procedure, which contains the forcible entry and detainer provision of the statutes, embraces, as is shown by its title, a summary proceeding for obtaining possession of real property in certain cases therein specified; and section 3301, Comp. Laws Utah 1888, above quoted, summarizes the remedy and judgment to be given under the several provisions of the statute. Under this section, if possession is asked for, and the proof justifies it, judgment of restitution is to be awarded. If the proceedings are for unlawful detainer, after neglect or failure to perform the conditions of the lease, or after default in payment of rent, judgment is to be awarded which shall declare a forfeiture of the lease. If damages for forcible entry or detainer and rent are declared for, the amount of the rent must be specified. If judgment is rendered against a defendant guilty of forcible entry or forcible and unlawful detainer, judgment for three times the amount of the damages assessed therefor, and for the rent found due, if any, should be entered. No rent is specified or found due in the verdict as rendered by the jury. In Conroy v. Duane, 45 Cal. 60%, it is held: "If the detainer was unlawful and forcible, the defendant is liable for forci


ble detainer, whether he originally obtained case is remanded, with directions to the court the possession peaceably or otherwise. It is below to modify the judgment by trebling the immaterial whether the entry was peaceable damages found by the jury, in accordance or violent, provided it was unlawful and the with the views herein expressed. detainer was forcible.” In Tewksbury v. O'Connell, 23 Cal. 265, the court said: “The ZANE, C. J., concurs. damages are not necessarily confined to compensation for waste and injury only, as these BARTCH, J. I dissent, because, in my terms are understood in their proper techni- | judgment, no case is here presented in which cal sense, but the value of the rents and treble damages ought to be allowed. To reprofits may enter into the estimate of dam- verse the action of the lower court, and treble ages, as the language of the statute clearly the damages, under the pleadings and record imports. If no waste or other injury be com- of this case, requires a more liberal construemitted, the loss of the use and occupation tion of the statutes than appears to be warof the premises may be the only damage sus- ranted by the authorities. tained by the complainant, and that value, when ascertained, is the proper measure of damages in such case. These damages are

(15 Utah, 07) to be ascertained, or, in other words, assess

CITY OF EUREKA v. WILSON. ed, by the jury, or by the court acting with

(Supreme Court of Utah. Feb. 16, 1897.) out a jury, according to the truth of case; and, when this is done, it is made the duty


PORATIONS-POWERS-ORDINANCES-FIRE of the court to treble them."

Limits-Police Power. The record shows that all the issues con

1. Under section 9 of article 8 of the constitained in the pleadings were found by the ju

tution, the supreme court has power to considry in favor of the plaintiff, and against the er the question of the validity or constitutiondefendant, for the unlawful and wrongful

ality of a statute or city ordinance on appeal,

where such question was raised in the district detainer of the premises in question. As the

court, and was decided, or if it ought to have (ase is presented, we are of the opinion that been decided, by that court, in a case which the court below should have trebled the was originally brought before a justice of the damages found by the jury, and rendered

peace; but the supreme court, on such appeal,

has no jurisdiction to determine any other judgment accordingly. Hitchcock v. Pratt, question which does not affect the validity or 51 Mich. 263, 16 N. W. 639; Conroy v. Duane, constitutionality of a statute or ordinance. 45 Cal. 606; Whittaker v. Pendola, 20 Pac.

Case of City of Eureka v. Wilson (previously

decided at the present term) 48 Pac. 41, fol. 080; Kitts v. Austin (Cal.) 23 Pac. 290; Rail

lowed. way Co. v. Strand (Wash.) Id. 928; Wilson 2. Comp. Laws Utah 1888, § 1755, sulu. 54, v. Shackelford, 41 Cal. 630; Rimmer v. Bla- confers upon the city council of any incorporat

ed city in this state the power to establish fire singame, 94 Cal. 139, 29 Pac. 857: Tewks

limits by ordinance, and to prohibit within such bury v. O'Connell, 25 Cal. 262; Light Co. v.

limits, without permission, the erection of any Morgan Mont.) 31 Pac. 485; Section 3167, buildings thereon with combustible material: Comp. Laws Utah 1888, under which the re- and such council may also, by ordinance, regn

late and restrict the granting of permission spondent claims the damages should have

to erect such buildings within such limits, but been assessed, is found in chapter 2, tit. 10, it cannot delegate to an oflicer or committee of the Code of Civil Procedure, under the title the power to enact regulations and restrictions of actions for a nuisance, waste, and willful respecting the erection of such buildings, al

though it may confer upon an officer or comtrespass on real property. This section has

mittee the power or discretion to grant perreference to damages arising in actions for mission in accordance with such lawful régulnuisances, waste, and willful trespass in cer- lations and restrictions as the council may imtain cases to real property covered and par


3. An ordinance of such character as: is auticularly provided for by the preceding sec- thorized by the statute is within the police powtions in the same chapter, and not to cases er of the state, and does not contravene secof this character. Title 10 has reference to

tion 1 of article 14 of the amendments to the

constitution of the United States. actions in particular cases specified. Section

4. Section 2, Ordinance No. 16 of Eureka 3901 appears to be a later enactment, and City, in conformity with statute, prescribes the was amended in 1892 (Laws 1892, p. 45), by

kind of material to be used in the construction striking out the latter part of the section not

of buildings within the fire limits of th:t city,

and also prescribes that certain classes of buildquoted above, and by adding thereto the ings, giving particular descriptions of the same, clause with reference to waste. This action may be constructed with combustible material was properly brought under section 3787,

within such limits. Then follows a proviso

wherein the “committee on buildings" is emwhich deals with the subject of forcible entry

powered, on application therefor by any perand detainer; and we see no valid reason son, to grant permission to erect any building why the damages found for forcible detainer

with combustible material within the inhibite should not be trebled by the court, as pro

district, under such "regulations and restric

tions" as that committee may provide. Hdd. vided by the act. Under the authorities, there that the provisions contained in and those reseems to be no escape from this result. The ferring to the proviso must be stricken out as plaintiff is entitled to have the damages for

invalid and inoperative, and that the remaining forcible and unlawful detainer trebled by the

provision of section 2 may stand, in connee

tion with the other sections of the ordinance. court, with costs. For the reasons given, the Held, further, that the provisions of the ordi.

nance extend to and protect all vacant places Ordinance No. 16 of Eureka city, and read as within the fire limits, and prohibit the removal follows: “Every building hereafter erected of a wooden building to the inhibited district, or even from one part of such district to an

within the fire limits of this city shall be of other.

brick, stone, iron, or other substantial or in. 5. Where the portion of a statute or ordi- combustible material, and only the following nance which is invalid is distinctly separable

wooden buildings shall be allowed to be erectfrom the remainder, and the remainder in itself contains the essentials of a complete en

ed, except as hereinafter provided, viz.; Sheds actment, the invalid portion may be rejected, to facilitate the erection of authorized buildand the remainder stand as valid and operative. ings, coal sheds not exceeding ten feet in (Syllabus by the Court.)

height, and not to exceed one hundred feet in Appeal from district court, Fifth district; E.

area, and privies, not to exceed thirty-six feet V. Higgins, Judge.

in area and ten feet in height, and all such R. G. Wilson was convicted of violating an

such sheds and privies shall be separate strucordinance of Eureka city, and appeals. Af

tures: provided, that any person desiring to firmed.

erect a building of other material than those

above specified within said fire limits, shall J. W. N. Whitecotton, for appellant. B. N.

first apply to the committee on buildings witbC. Stott, Co. Atty., and Williams, Van Cott &

in said fire limits of the city for permission Sutherland, for respondent.

so to do, and if the consent of the committee

on building within said fire limits shall be BARTCH, J. This case was commenced given, they shall issue a permit, and it shall before a justice of the peace, and the defend- thereupon be lawful to erect such building ant, after having been convicted of a viola- under such regulations and restrictions as the tion of an ordinance of Eureka city which for- committee on building within said fire limits bids the erection of wooden buildings, with. may provide." The authority under which out permission, within certain defined limits, this ordinance was passed can be found in appealed to the district court, and, upon con- subdivision 54, $ 1755, Comp. Laws Utah, 1888, viction and fine there, to this court.

which provides that the city council shall have The record presents several questions, rais- power, among other things, as follows: "To ed on behalf of the appellant, respecting the define the fire limits and prescribe limits with rulings of the district court as to the suffi- in which no building shall be constructed, exciency of the complaint before the justice of cept brick, stone, or other incombustible mathe peace, and the allowance of amendments terial, without permission, and to cause the thereto. These questions simply relate to the destruction or removal of any building coninterpretation which the district court put up- structed or repaired in violation of any ordi on various provisions of statute, and do not af- nance; and to cause all buildings and in fect the validity or constitutionality of a stat- closures which may be in a dangerous state ute. We have no power to consider such ques- to be put in a safe condition.” This provision tions in this class of cases, because, under of the statute confers upon the city council section 9 of article 8 of the constitution, the of any incorporated city in this state the powdecision of a district court on all questions er to establish fire limits, and to prohibit, except those affecting the validity or constitu- witbin such limits, without permission, the tionality of a statute is final and conclusive. erection of any building with combustible ma We so held in the case of City of Eureka v. terial, leaving all persons free to erect build Wilson (decided at the present term) 48 Pac. 41, ings of brick, stone, or other incombustible to which we refer for our opinion on this point. material within such limits. The erection of In that case we also discussed the question buildings with combustible material may be whether an appeal would lie in a case like prohibited by ordinance, and the granting or the one at bar, where the validity of a city ordi- | permission for the erection of such buildings nance, and not of a statute, is involved; and may likewise, by ordinance, be regulated and on the authority of that case, and in conform- restricted. Such was doubtless the intention ity with it, we hold that the appeal herein of the legislature. The power thus conferred was properly taken, and that we have juris- | by the legislature upon the city council is. diction to determine the validity of the ordi- however, of a legislative character, and may nance under which the appellant was con- not be delegated by the council to a commit victed, but have no jurisdiction to determine tee. Such power being vested in the council, any other question presented.

it must be exercised by it. If an ordinance The principal question to be determined in specifies fire limits in a city in accordance with this case, therefore, is whether the ordinance the statute, and prohibits the construction of under which the appellant was convicted and buildings of wood or of any combustible ma. fined is constitutional and valid. Counsel on terial within such limits, without permission, behalf of the appellant insists that it conflicts and also prescribes proper regulations and rewith section 1 of article 14 of the amend- strictions under which such permission shall ments to the constitution of the United States, be granted to all applicants under like cir. and that it delegates legislative power to & cumstances, it is valid, notwithstanding It committee of the city council, and is there- confers power upon an officer or committee fore void. The provisions of the ordinance in to grant permission to erect such buildings in controversy here may be found in section 2, conformity with its provisions. The power to grant the permission does not vest in the , and cannot be delegated. The proviso canofficer or committee an arbitrary discretion, not be justified as a reasonable exercise of but it vests in him or them merely a legal the authority conferred by the statute, and is discretion, which must be exercised fairly, void. Horr & B. Mun. Ord. $ 10; Newton v. reasonably, and honestly. An ordinance of Belger, 143 Mass. 598, 10 N. E. 461. such a character is authorized by the statute, The fact that the proviso is void, however, as well as by the police power of the state, affords no sufficient reason to declare the and does not contravene section 1 of article whole ordinance invalid. The ordinance is 14 of the amendments to the constitution of capable of enforcement independent of the the United States. City of Eureka v. Wil- proviso. The provision defining the fire limson, supra.

its and the prohibition against the erection Section 1 of the ordinance in question in therein of buildings of inflammable material, this case defines the fire limits of Eureka except certain described classes of buildings, city. Section 2, above quoted, in conformity are complete, distinct, absolute, and apparwith the statutes, prescribes the kind of ma- ently in no essential manner dependent upterial to be used in the construction of build- on the void provision. It is apparent from ings within the fire limits, which shall be the valid portion of the ordinance that the brick, stone, iron, or other incombustible ma- council intend to prohibit the construction of terial. It also prescribes that certain classes buildings of the objectionable material, so as of buildings, giving particular descriptions to promote the security and protection of of the same, may be constructed with com- persons and property, and the good order of bustible material within such limits. Then the city; and the council itself doubtless has follows a proviso wherein the “Committee on authority, under the statute, to exercise the Building” is empowered, on application there- power, in a proper manner, which it attemptfor by any person, to grant permission to ed to delegate to the committee. There is erect any building with combustible mate- nothing apparent which would justify this rial, under such "regulations and restric- court in holding that the city council would cions," as that committee may provide.. All not have enacted the ordinance except in the provisions of section 2 not contained in connection with the pro so. The provisions the proviso appear to be authorized by the contained in, and those referring to, the prostatute, and to conform to the principles viso, must be stricken out as invalid and inhereinbefore stated, respecting ordinances. operative; and the remaining provisions of By adding the proviso, however, the council section 2 may stand in connection with the has attempted to confer upon a committee, other sections of the ordinance. It is a wellnot only an absolute power, which would en- settled rule that where the portion of a able it to defeat the very object of the ordi- statute or ordinance which is invalid is disnance at its mere will and pleasure, but al- tinctly separable from the remainder, and so a legislative power, which would enable the remainder in itself contains the essentials it to perform a duty imposed upon the coun- of a complete enactment, the invalid portion cil itself by the statute, and that is to pro- may be rejected, and the remainder stand as vide regulations and restrictions to control valid and operative. In City of Detroit v. the granting of permission according to the Ft. Wayne & B. I. Ry. Co., 95 Mich. 456, 54 provisions of the ordinance. This the coun- N. W. 959, Mr. Justice McGrath, speaking cil had no power to do. The erection of a for the court, said: “It is well settled that an wooden building in any part of the city is ordinance may be good in part, although bad not in itself unlawful. It only becomes so in part. It is only necessary that the good when forbidden by law, within the fire lim- and bad parts be so distinct and independent its, for the security of persons and property, that the invalid parts may be eliminated, and the promotion of the interests and good and that what remains contain all the essenorder of the city; and while a city council tials of a complete ordinance." In Fisher v. in this state may prohibit, by ordinance, the McGirr, 1 Gray, 1, Mr. Chief Justice Shaw, construction of buildings, within fire limits, delivering the opinion of the court, said: of combustible material, still it cannot con- “We suppose the principle is now well unfer a power upon a committee, such as is derstood that where a statute has been passattempted to be conferred by the proviso, ed by the legislature, under all the forms and which may be used as a means for unjust sanctions requisite to the making of laws, and arbitrary discrimination between citi. some part of which is not within the compezens. If this proviso were valid, then, no tency of legislative power, or is repugnant to matter what regulations and restrictions the any provision of the constitution, such part committee might adopt, it would still be thereof will be adjudged void, and of no within its power to grant permission to one avail, while all other parts of the act, not person to erect a wooden building, and re- obnoxious to the same objection, will be fuse the privilege to another under the same held valid, and have the force of law. There circumstances. The statute vested in the is nothing inconsistent, therefore, in declarcouncil the exercise of powers of legislation ing one part of the same statute valid, and respecting the establishing of fire limits and another part void.”

1 Dill. Mun. Corp. § the construction of buildings therein. This 421; State v. Kantler, 33 Minn. 69, 21 X. W. demands discretion in the council itself, 836; Ex parte Cbristensen, 85 Cal. 208, 24

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