40 App. D.C. 46 | D.C. Cir. | 1913
delivered the opinion of the Court:
The averments of the bill must be accepted as true, since the request of the court to hear the case as on demurrer was acquiesced in by counsel on both sides. Judgment was entered without objection to the manner of trial, and it is too late now, for the purposes of this appeal, to complain. Thus, the case, stripped of all issues of fact, leaves only the naked question of law, whether or not, in the light of the admitted averments of the bill, plaintiff is entitled to the relief sought.
The validity of the provisions of the building regulations of the District (160b) relating to the establishment of public garages was upheld in United States ex rel. Early v. Richards, 35 App. D. C. 540. While not strictly essential to the disposal of this case, since the permits are admitted to be void, we think, in view of a probable trial on the merits, it is important to interpret the regulation in the light of the action taken. At the time of the issuance of the first permit, sec. 160b provided: “No automobile or locomobile livery stable or building wherein . automobiles or locomobiles are to be stored, put up, or kept for hire, or otherwise, shall be erected, located, established, or maintained upon any residence street or avenue in the District of Columbia without the written consent of the owner of 75 per centum of the property within 200 feet of the proposed establishment (excepting property used for purposes requiring consent of property owners) ; strictly private establishments of this character, located not less than 50 feet back from the front building line of the lot, will be exempted from this regulation [or if located in a fireproof compartment in a dwelling]. No public automobile or locomobile livery stable, or building wherein automobiles or locomobiles are to be stored, put up, or
The regulation applies generally to the residence and business sections of the city, and the municipal authorities are without power so to modify it as to convert it into an agency for the granting of special privileges. Berry v. District of Columbia, 32 App. D. C. 96. Neither can anyone proceed lawfully to establish a public garage without a legal permit from the proper authority, which can be lawfully issued only whe.n the requisite number of property owners within the prescribed radius have given their consent. The municipal authorities have no power or option in the matter until the consent of the required number of property owners has been secured. It is then, and then only, that their power to act in the premises attaches.
It is urged by counsel for defendants that, inasmuch as plaintiff is not here representing the other property owners within the prescribed radius, he must show, as a condition for relief, that he will be damaged specially and irreparably to an extent not sustained by the other property owners within the radius. This contention is unsound. Plaintiff, in his individual capacity, is only required to show that he will sustain special and irreparable damage, not sustained by the general public. If plaintiff had associated with him a sufficient number of property owners within the prescribed radius to prevent the procuring of the required assent for the establishment of the garage, the situation would be different. It would not then be a case where the rights of a third party intervene. It would be a direct proceeding. They would be in the position of protecting their property rights as guaranteed by the regulation,—a right in the face of which the municipal authorities would be powerless to act, until, as a condition precedent, the consent of the requisite number of px*operty owners had been secured. In that case the light of action would have depended not on the
Where the consent of the property owners in the vicinity is made by law a condition precedent to the right to establish an industry therein, any attempt to establish the industry without such consent may be enjoined by the property owners within the prescribed radius. In Roberts v. Easton, 19 Ohio St. 79, it was sought to restrain the building of a street railroad in the city of Cincinnati. The statute required that a permit should be obtained from the city council before proceeding, and that, as a condition precedent to the issuance of the permit, the consent of a majority of the property owners along the street, where the proposed road was to be constructed, should be obtained. Plaintiff, representing a majority of the property owners on the street, averred that such consent had not been obtained. It was objected that they were not in position to complain. The court held that the permit issued by the council was totally void for the lack of consent by the property owners; that no presumption as to its validity attached, since the council was without power to act at all until the proper consent had been obtained; that the proceeding was direct, and not collateral ; that the statute itself was sufficient notice to the parties to forbid its innocent violation, and that no action of the council, in the absence of the requisite consent, could “defeat the rights secured by law to the owners of property on a street proposed to be occupied by a street railroad.” Summing up the case, Judge Day, speaking for the court, said: “The remaining question relates to the right of the plaintiff below to bring his suit, and to the relief sought thereby. He sued on behalf of himself and others, claiming to be a majority of the owners of property interested, whose assent was essential to the legality of the proceedings complained of. The action was not based upon the statutory right of a citizen to restrain the city authorities from an abuse of their powers; nor exclusively on the idea that the proposed construction was a public nuisance, that worked some special injury to the plaintiffs. But the legislature, in forbidding the authorities having the control of the
It is insisted that defendant, the taxicab company, has expended large sums of money upon this establishment before the institution of this proceeding; hence, according to a familiar rule, equity cannot be invoked to prevent that which has already been accomplished. The averments of the bill do not support the assertion. But even if it be true, defendants are charged with knowledge of the ordinance and the method of procedure prescribed therein, and if, instead of proceeding in the manner prescribed by the regulation, they sought to circumvent it, they are in poor situation to complain. The earliest date defendants were in position to proceed, even under color of right, was the date of the issuance of the second permit; and since the bill was filed within a few days thereafter, it is hardly possible that they could have made much progress in the reconstruction of the building from a street to an alley frontage and otherwise, or toward the instalation of the machinery essential to the use intended. Besides, it is not the building, but its contemplated use, which plaintiff seeks to enjoin. In the case of Pennsylvania v. Wheeling & B. Bridge Co. 9 How. 647, 654, 13 L. ed. 294, 297, the court said: “If the defendants proceed in the meantime [between bill and hearing] to complete the bridge, they will gain no equity thereby; but if judgment be obtained against them, they will be compelled to abate the nuisance at their own expense.” Even where a structure has been completed in violation of law, equity will compel its removal. McHugh v. Louisville Bridge Co. 23 Ky. L. Rep. 1546, 65 S. W. 456.
Our attention has been called to the recent decision of the Supreme Oourt of the United States in the case of Eubank v. Richmond [226 U. S. 137, 57 L. ed. —, 42 L.R.A.(N.S.) 1123, 33 Sup. Ct. Rep. 76]. In that case, the constitutionality of an ordinance of the city of Richmond was involved. A statute of Virginia authorized city councils, among other things, in their discretion “in particular districts or along particular streets to prescribe and establish building lines.” By virtue
Eubank was granted a permit to erect a house on a lot owned by him. Before construction was commenced, but after the material for the house had been assembled, the street committee, on petition of two thirds of the property owners within the square, and on the side of the street on which his property was situated, established a building line 3 feet back of the proposed front line of the house. He disregarded the action of the committee, was arrested and fined $25. From a decision of the supreme court of Virginia upholding the judgment, the case was taken to the Supreme Court of the United States, where the judgment was reversed, on the ground of the uneonstitutionality of the ordinance.
The court, referring to the ordinance, said: “It leaves no discretion in the committee on streets as to whether the street line shall or shall not be established in a given case. The action of the committee is determined by two thirds of the property owners. In other words, part of the property owners fronting on the block determine the extent of use that other owners shall make of their lots, and against the restriction they are impotent. This we emphasize. One set of owners determine not only the extent of use, but the kind of use which another set of owners may make of their property. In what way is the public safety, convenience, or welfare served by conferring such power ? The statute and ordinance, while conferring the power on some property holders to virtually'- control and dispose of the property rights of others, creates no standard by which the power thus given is to be exercised; in other words, the property holders who desire, and have the authority to establish the lino may do so solely for their own interest or even capriciously.
It is urged that the inspector of buildings, the Commissioners of the District, and the assessor should not have been made parties defendant. It is unnecessary to discuss this contention, since, on the face of the bill, they are at least proper, if not necessary, parties.
The decree is reversed with costs, and the cause is remanded for further proceedings not inconsistent with this opinion.
Reversed.'