212 Wis. 618 | Wis. | 1933
Plaintiff seeks equitable relief enjoining the defendants from further prosecuting certain actions and commencing additional actions to recover penalties under a zoning ordinance of the city of Milwaukee, and from otherwise enforcing that ordinance as applicable to plaintiff’s established method of distributing its newspapers in residential districts of that city. Briefly stated, in SO' far as necessary for consideration of the proposition involved on this appeal, there are allegations in the complaint to the following effect:
That for many years prior to and continuously since the adoption of a zoning ordinance and amendments thereto by the city of Milwaukee, the plaintiff and its predecessors in the business now owned and conducted by it, distributed their newspapers for delivery by their carrier boys in residential districts to certain private garages, where the boys called for them in an orderly manner, which was not noticeable or harmful to the owners of abutting property; that it was essential to plaintiff’s business that its papers be distributed at such places for delivery to subscribers residing in such districts; that defendants wrongfully claim that such distribution by plaintiff to its carriers “constitutes a violation of said zoning ordinance,” when in fact such distribution is not in any way a violation of such ordinance and does not constitute the use of property contrary to the or dir nance; that defendants have filed complaints and procured
It has become well established in this state that equity has jurisdiction to interfere by injunction and prevent prosecutions for misdemeanors or violations of municipal ordinances when such prosecutions are resorted to, or threatened, as a means of preventing the enjoyment of property rights and there is no other way of adequately remedying the mischief. Milwaukee E. R. & L. Co. v. Bradley, 108 Wis. 467, 84 N. W. 870; Joseph Schlitz Brewing Co. v. Superior, 117 Wis. 297, 93 N. W. 1120; Pinkerton v. Buech, 173 Wis. 433, 181 N. W. 125.
In many of the cases in this state and elsewhere in which such jurisdiction was exercised, the prosecutions which were enjoined were brought under ordinances which were held unconstitutional and void on their face. However, though an ordinance may not be void on its face, injury fully as great and irreparable, and as to which there is otherwise no
To prevent such injury, it was held in Yick Wo v. Hopkins, 118 U. S. 356, 6 Sup. Ct. 1064, and in Dobbins v. Los Angeles, 195 U. S. 223, 25 Sup. Ct. 18, 49 Lawy. Ed. 169, that “although an ordinance might be lawful upon its face, and apparently fair in its terms, yet, if it was enforced in such a manner as to work a discrimination against a part of the community, for no lawful reason, such exercise of power woiild be invalidated by the courts.” In City Council of Augusta v. Loftis, 156 Ga. 77, 85, 118 S. E. 666, 670, the court said:
“Ordinances may be unreasonably administered to the injury of another, in which case its administration becomes void. Loeb v. Jennings, 133 Ga. 796, 67 S. E. 101, 18 Ann. Cas, 376. The courts will enjoin the unreasonable and arbitrary administration of a reasonable and valid ordinance.”
In Joseph Schlitz Brewing Co. v. Superior, supra, this court in applying the rule “that equity may enjoin such prosecutions where they are resorted to or threatened as a means of preventing the enjoyment of property rights, and there is no other way of adequately remedying the mischief,” said:
“Under this rule, we think that, conceding that the ordinance in question is void or not applicable to the plaintiff, the complaint states a good cause of action in equity.”
Thus this court then recognized that the inapplicability of an ordinance to a plaintiff may also afford sufficient basis for his maintaining an action invoking the exercise of equi
By the Court. — Order affirmed.