Appeal, No. 158 | Pa. Super. Ct. | Feb 16, 1897
Opinion by
Without any effort to enforce its ordinance, and in the absence of any evidence that even an attempt has been made to enforce it against the defendant, the appellee contends that its provisions are not adequate to accomplish the object intended. If so, the legislative branch of its government, in our opinion, is clothed with ample power to provide the necessary remedy, and to that branch of the city government' the argument should be addressed. It is well established that “Equity will not lend its aid to enforce by injunction the by-laws or ordinances of a municipal corporation restraining a certain act, unless the act is shown to be a nuisance per se: ” High on Injunctions, par. 1248. “ The mere fact that a certain thing is prohibited by ordinance, does not render it a nuisance, if it be not otherwise such, so as to authorize an individual, or even the city itself, to have it enjoined: ” Spelling on Extraordinary Relief, par. 399.
The rule laid down in High on Injunctions, supra, is fully sustained in Manchester v. Smythe, (N. H. 1887), 18 Am. & Eng. Corporation Cases, 474; Wason v. Sanborn, 45 N. H. 169; Perkins v. Foye, 60 N. H. 496; Waupun v. Moore, 34 Wis. 450" court="Wis." date_filed="1874-01-15" href="https://app.midpage.ai/document/president-of-waupun-v-moore-6601450?utm_source=webapp" opinion_id="6601450">34 Wis. 450 ; Village of Pine City v. Munch, 42 Minn. 342" court="Minn." date_filed="1890-01-14" href="https://app.midpage.ai/document/village-of-pine-city-v-munch-7966323?utm_source=webapp" opinion_id="7966323">42 Minn. 342; Lawyer’s Reports Annotated, vol. 6, p. 763; Village of St. Johns v. McFarlan, 33 Mich. 72" court="Mich." date_filed="1875-11-02" href="https://app.midpage.ai/document/village-of-st-johns-v-mcfarlan-7928147?utm_source=webapp" opinion_id="7928147">33 Mich. 72.
We do not wish to be understood as deciding in this case that the ordinance and regulations of the city of Philadelphia are not reasonable and valid enactments. In Vandine’s Case, 6 Pick. 187, under a state of facts strikingly similar to those in this case, in a proceeding in the municipal court under the provisions of an ordinance of the city of Boston in nearly the precise language of the ordinance before us, the ordinance was sustained and the judgment of the municipal court affirmed. We are of the' opinion that the extraordinary powers claimed by the board of health have been misapprehended as applied to this case; in other words, the power to declare this appellant’s
It must be observed in this case that the nuisance is alleged to consist in the dumping of garbage, offal and refuse matter, and the effect thereof. This is the root of the evil, and large discretion pertaining to the same is vested in the board of health, and while the board has the discretionary power to. declare the keeping of garbage, offal and refuse matter upon the streets, alleys and the premises of individuals a nuisance, that discretion is not sufficiently far reaching to declare the acts done by the- appellant in removing the garbage to be a nuisance, when he has adopted the precise means for that purpose prescribed by the ordinance of the city.
The decree appealed from is based upon the fact of the violation of the ordinance by the defendant in collecting kitchen garbage and offal in Philadelphia without a permit from the board of health. We have not discussed all the questions raised, but have sufficiently indicated our reasons for reversing the decree.
The second assignment of error is sustained, the decree of the court below of October 17,1896, is reversed, and the injunction dissolved at the cost of the appellee.