155 Minn. 391 | Minn. | 1923
Appeal from an order sustaining a demurrer to plaintiff’s amended complaint. The cause of action set out therein and in the original complaint was founded on section 674 of article 16 of the building ordinance of the city of St. Paul, which declared that foundries and other classes of buildings enumerated could not be erected in a residential or business district unless the consent of the owners of certain classes of property was obtained.
The original complaint alleged that plaintiff was the owner of property adjacent to that owned by the defendant Oehrlein; that Oehrlein had applied for a permit to erect a foundry on his property, and that the council of the city of- St. Paul had adopted a resolution authorizing the issuance of the permit, although the consent of property owners had not been obtained as required by the ordi
It was admitted at the argument that on November 16, 1922, while the appeal was pending, section 674 of the building ordinance was amended by striking out the provision relating to the property owners’ consent and substituting a provision requiring the affirmative vote of 5/7 of the members of the council to authorize the issuance of a permit for the erection of foundries or other buildings in certain enumerated classes. It was also admitted that on June 5, 1922, the building inspector issued a permit to Oehrlein by virtue whereof he has erected a one-story building used as a brass foundry.
With practical unanimity the courts hold that, where a suit is founded on a statute and before the suit has been concluded or vested rights have been acquired the statute is repealed without attaching a saving clause to the repealing act, the suit must stop where the repeal finds it. Board of Pub. Util. Commrs. v. Compania General, 249 U. S. 425, 39 Sup. Ct. 332, 63 L. ed. 687; People v. Bank of San Luis Obispo, 159 Cal. 65, 112 Pac, 866, 37 L. R. A. (N. S.) 934, Ann. Cas. 1912B, 1148; Vance v. Rankin, 194 Ill. 625; 1 Sutherland, St. Const. (2d Ed.) § 285; 36 Cyc. p. 1228. The same principle applies to a suit founded on an ordinance which has been repealed. Riley v. Bell, 184 Ind. 110, 109 N. E. 843. All there is before us is the abstract question of whether'the repealed ordinance was valid. The determination of the question can no longer have any practical effect, and hence this has become a moot case.
There is an additional reason which leads to the same conclusion. It is no longer possible to prevent Oehrlein from building, for he has built. It is true that part of the relief sought is to restrain him from maintaining a foundry. But the sole ground for asking for this relief is that he built without having a valid permit. An injunction is not demanded 'because he is maintaining a nuisance. If injunc-tional relief can be had upon the state of facts alleged in the complaint, it makes no difference what kind of business the owner of a building conducts therein. The mere fact that the building had been erected without a permit would enable his neighbor to maintain a suit to enjoin the owner from using the building, whether the business conducted therein was offensive or inoffensive. No case has been called to our attention which would warrant such a conclusion. Even if it were held that the amended complaint stated a cause of action and plaintiff established the facts alleged, the district court could not compel Oehrlein to demolish his building, nor could it compel him to cease to operate his foundry in the absence
We conclude that as to Oehrlein, as well as to his co-defendants, this has become a moot case, and therefore the appeal must be dismissed as to all the defendants. It is so ordered.