50 Mo. App. 464 | Mo. Ct. App. | 1892
Lead Opinion
— This is an injunction suit whereby, it was sought to restrain defendant Jefferson from erecting a wooden building within the fire limits, as prescribed by an ordinance of Kansas City. Plaintiffs, Rice and Hunt, are owners of real estate within the block. Jefferson justified the erection under a permit issued by the superintendent of buildings, it being provided in the ordinance that, if the owners of-two-thirds of the front feet of the block consent, then such permit to construct a wooden building might issue. Plaintiffs alleged that defendant did not have the consent of the necessary two-thirds. Defendant began the construction of his building in April, 1890, and was shortly arrested and prosecuted before the city recorder for an alleged violation of the ordinance. He was tried, found not guilty, and discharged. Thereupon plaintiffs applied for this injunction. The court below awarded the relief prayed by the plaintiffs, and defendant appealed.
In view of what seems to be the well-settled law in such cases, I don’t see how this injunction suit can be
Mr. High thus expresses the general doctrine: “Although the jurisdiction of equity to prevent by injunction the erection or maintenance of nuisances is undoubted, the courts are, nevertheless, inclined to-limit its exercise to cases of nuisances per se, and not to' extend the relief to enjoining structures which are' merely prohibited 'by municipal regulation.” Sec. 748. Many of the cases denying such relief declare as a. reason that it is not the province of equity courts thus to attempt to enforce the criminal law or the penal ordinances of municipalities. The evils and embarrassments attending such a course are manifest. Ordinances, police and otherwise, are framed to cover a, great variety of cases, and in nearly every instance-prosecution for a violation thereof is provided for by the creation of police courts, etc. Now, if, on every threatened infraction of these municipal regulations, a. party may resort to equity and command the injunctive-arm of the court, then we have a transfer of trifling misdemeanors, and the court of equity becomes an inferior-court of criminal jurisdiction rather than one of the-extraordinary powers and rare jurisdiction generally-accorded to it.
Again, it is said that, “notwithstanding the well-established jurisdiction of equity to enjoin the- erection
Now the charter and ordinances of Kansas City provide full and adequate legal remedy for the matter here complained of. If defendant was proceeding, in violation of the city’s building ordinances, to erect a wooden building within the prohibited district there was full and complete remedy provided by prosecution before the city recorder or police judge; and the same relief as here applied for was there obtainable. He might have been, as he was, arraigned before the city judge, tried, and if found guilty the court was fully empowered to direct an abatement of the so-called nuisance. It seems, too, that this was the first effort of these plaintiffs ; the defendant was tried before the recorder for the offense here charged but found not guilty. If there was then dissatisfaction with the result reached, an appeal to the criminal court of Jackson county was open to the prosecution. But this legal remedy was abandoned at this point and recourse sought in a court of equity by injunction. The creation of courts of equity was not to supply simply additional courts for the remedy of wrongs, but rather to furnish remedies not to be had in courts of law. If the law courts are empowered to give the same adequate relief, then resort cannot be had
Entertaining these views it becomes unnecessary to mention other points suggested in briefs of counsel. The judgment of the circuit court will be reversed, with directions to dismiss the bill.
Rehearing
ON MOTION NOR REHEARING.
— We have examined with much care the grounds upon which plaintiffs challenge the correctness of the ruling announced in the opinion. No authority has been cited nor have we, after considerable research, been able to find any that tends in the least to unsettle the conviction we have expressed. We have looked in vain for an authoritative statement of the law to the effect that a court of chancery will lend its aid by its mandatory injunctive process to enforce at the suit of a private pm'ty a mere police regulation of a municipal corporation. Nor have we been able to anywhere find the law to be that an individual has any' vested or property right conferred by a police regulation like that in this case which a court of equity has jurisdiction to lay hold of and enforce, and especially when the subject of the municipal prohibition is not a nuisance per se.
None of these cases present the slightest resemblance to this in fact or in principle-. They have no sort of bearing whatever on the case. The distinction between these cases and that to which this belongs is palpable. This case, in its essential features, is exactly like that of Warren v. Cavanaugh, 33 Mo. App. 102.
Even if a municipality may resort to a court of equity to aid it in enforcing public duties to preseiye the health and property of its inhabitants, in those cases which fall under some recognized head of equity jurisdiction (Dillon on Municipal Corporations, sec. 375, note; Watertown v. Mayo, 109 Mass. 305), even this seems to be an encroachment on the well-settled general rule denying to courts of equity the power to restrain the threatened violation of a municipal ordinance unless the act threatened be a nuisance per se.
Eor these reasons we are all of the opinion that the motion should be overruled.