Imágenes de páginas


Newport & C. Bridge Co. 90 Ky. 193, 8 Wo v. Hopkins, 118 U. S. 356, 30 L. ed. L.R.A. 484, 13 S. W. 720, it was held that 220, 6 Sup. Ct. Rep. 1064; State v. Tenant, 'if a city ordinance is invalid, one who is 110 N. C. 609, 15 L.R.A. 423, 28 Am. St. affected by it has the right, in order to Rep. 715, 14 S. E. 387; State v. Dubarry, prevent irreparable injury and a multi- 44 La. Ann. 1117, 11 So. 718; Des Moines plicity of prosecutions, to go into a court v. Gilchrist, 67 Iowa, 210, 56 Am. Rep. 341, of equity for relief.'In Barthet v. New 25 N. W. 136; Northern P. R. Co. v. SpoOrleans, supra, in sustaining this remedy, kane, 52 Fed. 428. the court said: "It is not enough that Even were the general fire-limit ordithere is a remedy at law; it must be plain nances valid and constitutional (as and adequate; or, in other words, as prac-deny), nevertheless plaintiff has complied tical and efficient to the ends of justice and with all the provisions thereof, in erecting its prompt administration as the remedy the air dome, and is therefore entitled to in equity.” The excellence of the equitable maintain the same. remedy in a case like this is that it admits St. Louis v. Dorr, 136 Mo. 370, 37 S. W. of the doing of complete justice by pre- 1108; Kolkmeyer v. Jefferson, 75 Mo. App. serving the status without the destruction 683; State ex rel. Carthage v. Cowgill & or loss of property which must precede and H. Mill. Co. 156 Mo. 634, 57 S. W. 1008; sustain the action for damages. Its selec- State ex rel. Canton v. Allen, 178 Mo. 573, tion in such cases is commendable.

77 S. W. 868; Page v. St. Louis, 20. Mo. For the reasons stated, the judgment of 142; Dausch v. Crane, 109 Mo. 329, 19 S. the circuit court for Wayne county is W. 61; Keating v. Skiles, 72 Mo. 97; Ball affirmed.

v. Fagg, 67 Mo. 484; State ex rel. Gourley v.

Kansas City, 58 Mo. App. 124; 28 Cyc. 322, Blair, C., concurs.

335, 343, 344; Eichenlaub v. St. Joseph, 113

Mo. 395, 18 L.R.A. 590, 21 S. W. 8; St. Per Curiam:

Louis v. Foster, 52 Mo. 513; Rockville v. The foregoing opinion by Brown, C., is Merchant, 60 Mo. App. 365; Aurora Water adopted as the opinion of this division. All Co. v. Aurora, 129 Mo. 540, 31 S. W. 946; the judges concur except Bond, J., who dis- Cape Girardeau v. Riley, 52 Mo. 424, 14 Am. sents. The cause is transferred to the court | Rep. 427; Tarkio v. Cook, 120 Mo. 1, 41 in banc because it conflicts with the deci- Am. St. Rep. 678, 25 S. W. 202; Saleno v. sion in banc of St. Louis v. Fischer, 167 | Neosho, 127 Mo. 635, 27 L.R.A. 769, 48 Am. Mo. 654, 64 L.R.A. 679, 99 Am. St. Rep. 614, St. Rep. 653, 30 S. W. 190; Northern P. R. 67 S. W. 872, at the October term, 1901. Co. v. Spokane, 52 Fed. 428.

The injunction was correctly made perMessrs. N. C. Whaley, Abington & petual, because special ordinance No. 240, Phillips, and David W. Hill for appel- condemning the air dome building, under lants.

which defendants are acting, is void, invalid, Messrs. N. A. Mozley, Leslie C. Green, in excess of the charter powers granted to and Ernest A. Green, for respondent: the city of Poplar Bluff, and unconstitu

The general ordinances of the city of Pop-tional. lar Bluff pertaining to fire limits are all Brown v. Carrollton, 122 Mo. App. 276, void, invalid, in excess of the charter powers 99 S. W. 37; St. Louis v. Edward Heitzeof said city of Poplar Bluff, and unconsti- berg Packing & Provision Co. 141 Mo. 375, tutional; therefore, plaintiff was not re- 39 L.R.A, 551, 64 Am. St. Rep. 516, 42 S. quired to comply with them in erecting the W. 954; Rice v. Jefferson, 50 Mo. App. 468; building in controversy, and did not have to Hisey v. Mexico, 61 Mo. App. 253; Allison secure the consent of the municipality to v. Richmond, 51 Mo. App. 133; Springfield build the "air dome," as provided by the R. Co. v. Springfield, 85 Mo. 676; State ex ordinances of said city.

rel. Crow v. St. Louis, 174 Mo. 136, 61 L.R.A, St. Louis v. Russell, 116 Mo. 248, 20 593, 73 S. W. 623; Springfield v. Jacobs, L.R.A. 721, 22 S. W. 470; Edwards v. Kirk- 101 Mo. App. 339, 73 S. W. 1097; Plattswood, 147 Mo. App. 612, 127 S. W. 378; burg v. Hagenbush, 98 Mo. App. 669, 73 S. Childers v. Holmes, 95 Mo. App. 158, 68 s., W. 725; State ex rel. Musser v. Birch, 186 W. 1046; Heman Constr. Co. v. Loevy, 64 Mo. 219, 85 S. W. 361; Hannibal v. RichMo. App. 433; Kirkwood v. Meramec High- ards, 82 Mo. 336, 35 Mo. App. 21; Martinlands Co. 94 Mo. App. 645, 68 S. W. 761; owsky v. Hannibal, 35 Mo. App. 78; HanniState v. St. Louis, I. M. & S. R. Co. 232 bal v. Missouri & K. Teleph. Co. 31 Mo. Mo. 642, 162 S. W. 144; Boyd v. Frankfort, App. 23; Willow Springs v. Withaupt, 61 117 Ky. 199, 111 Am. St. Rep. 240, 77 S. Mo. App. 275. W. 669; State ex rel. Omaha Gas Co. v. Injunction is the proper remedy in this Withnell, 78 Neb. 33, 8 L.R.A. (N.S.) 978, case; multiplicity of prosecutions and one 126 Am. St. Rep. 586, 110 N. W. 680; Yick' of the defendants being a municipal corpo. ration afford such sufficient grounds there. | ing plants, by forbidding the issuance of for.

any garage permit allowing the storage of Brown v. Carrollton, 122 Mo. App. 276, 99 volatile inflammable oil, for a building withS. W. 37; Sylvester Coal Co. v. St. Louis, in a prescribed distance any school, place 130 Mo. 329, 51 Am. St. Rep. 566, 32 S. W. of public amusement, or assembly, tenement 649.

house, or hotel.



. Per Curiam:

(May 5, 1914.) Judgment affirmed. All concur, except Woodson, Ch. J., and Bond, J., who dissent.

the Appellate Division of the Supreme Court, First Department, affirming an order of a Special Term, Part I., for New York

County, denying an application for a writ NEW YORK COURT OF APPEALS.

of mandamus to compel defendants to issue RE APPLICATION OF JAMES MCINTOSH a garage permit. Affirmed. for a Writ of Mandamus against Joseph

The facts are stated in the opinion. Johnson, Fire Commissioner, et al., Con- Mr. Theodore B. Chancellor, with stituting the Municipal Explosives Com- Messrs. Olcott, Gruber, Bonynge, & mission of the City of New York.

McManus, for appellant:

The regulation forbidding the granting (211 N. Y. 265, 105 N. E. 414.)

of a permit for petitioners' garage because

it is within 50 feet of a building occupied Constitutional law forbidding garage permit - existing buildings.

as a school is an arbitrary and unreasonNo constitutional property rights are in able enactment; and it is invalid because it terfered with, even with respect to exist-deprives him of his liberty and property Note. - Prohibition regulation of And, in Storer v. Downey, 215 Mass. 273, garages.

102 N. E. 321, it was held that an ordi

nance providing that "no building shall be This note is limited to public regulations, erected for or converted to use of a garage and does not include restrictive covenants. unless such use is previously authorized by As to whether garage is within restrictive the board of aldermen” was a valid exercise covenants in conveyances of real estate, see of the police power on the ground that oil 34 L.R.A.(N.S.) 730.

and gasolene which were stored and used Generally as to regulations for fire pro- in garages were so highly inflammable and tection, other than building regulations, see explosive that they might increase the dannote to State v. Wittles, 41 L.R.A. (N.S.) ger of fire, no matter how carefully the 456.

buildings might be constructed or how nonOn storage of oil, gasolene, or gas as nui combustible their materials might be. sance because of explosive or combustible

In O'Hara v. Nelson, 71 N. J. Eq. 161, quality, see 52 L.R.A.(N.S.) 930.

63 Atl. 836, a preliminary injunction was The regulation which was upheld in Re granted, restraining the owner of a public McIntosh would seem to be clearly within frame garage from filling automobiles with the police power, even as applied to build- gasolene inside the building, and from ings used as garages before its adoption. storing automobiles filled with gasolene in:

In People ex rel. Busching v. Ericsson, side the building, where he has a permit for post, 607, a statute empowering the city the storage of 1 barrel of gasolene only, and council to direct the location and regulate the garage is in close proximity to other the use inter alia of garages within the frame buildings, including occupied resilimits of the city or village was upheld as dences. And the injunction was continued a legitimate exercise of the police power, upon final hearing (71 N. J. Eq. 629, 63 that power not being dependent upon the Atl. 842.) question whether a garage is a nuisance In People ex rel. Corn Hill Realty Co. v. per se; and it was further held that an ordi- Stroebel, 209 N. Y. 434, 103 N. E. 735, renance declaring it unlawful to construct or versing 156 App. Div. 457, 141 N. Y. Supp. maintain any garage within 200 feet of 1014, it was held that an ordinance proany building used as a hospital, church, or viding that “no person, firm, or corporation school, or the grounds thereof, or to con- shall hereafter maintain or conduct a public struct or maintain any garage in any block garage for the storing, maintenance, keepin which two thirds of the buildings on ing, caring for, or repairing of automobiles both sides of the street are used exclusively or motor vehicles within the city limits for residence purposes, or within 100 feet without permission of the superintendent of any such street in any such block, with of buildings," although forbidding the mainout securing the consent of a majority of tenance of a public garage, did not prothe property owners, according to frontage hibit the erection of a building which, on both sides of the street,-was a reason though adapted to such a use, could be able exercise of the power conferred by the used for other purposes not forbidden, such statute.

as the sale of vehicles, “automobiles, and

without due process of law, and denies to & Oil Co. 128 Ind. 555, 12 L.R.A. 652, 3 him the equal protection of the laws. Inters. Com. Rep. 613, 28 N. E. 76; Dob

Frank L. Fisher Co. v. Woods, 187 N. Y. bins v. Los Angeles, 139 Cal. 179, 96 Am. 90, 12 L.R.A.(N.S.) 707, 79 N. E. 836; St. Rep. 95, 72 Pac. 970; Crowley v. EllsLochner v. New York, 198 U. S. 45, 49 L. ed. worth, 114 La. 308, 69 L.R.A. 276, 108 Am. 937, 25 Sup. Ct. Rep. 539, 3 Ann. Cas. 1133; St. Rep. 353, 38 So. 199; Waters Pierce People ex rel. Tyroler v. Warden, 157 N. Y. Oil Co. v. New Iberia, 47 La. Ann. 863, 17 116, 43 L.R.A. 264, 68 Am. St. Rep. 763, 51 So. 343; Standard Oil Co. v. Danville, 199 N. E. 1006; People ex rel. Croft v. Man- Ill. 50, 64 N. E. 1110; Spiegler v. Chicago, hattan State Hospital, 5 App. Div. 249, 39 216 Ill. 114, 74 N. E. 718; Rex v. McGregor, N. Y. Supp. 158.

4 Ont. L. Rep. 198, 1 Ont. Week. Rep. 358. Mr. Terence Farley, with Mr. Frank It may also prohibit the location of L. Polk, for respondent:

garages in certain localities. Under its general powers in relation to Laurelle v. Bush, 17 Cal. App. 409, 119 public safety, good, and welfare, health, Pac. 953. etc., or under an express or implied grant Under its police power, the state or the of power for that purpose, a municipality representative to which it has delegated its may unquestionably regulate the keeping, authority may regulate or even prohibit the using, and selling of explosives, etc., within transaction of business in such a manner or the corporate limits.

place that noise, smoke, dust, odors, and State v. Wittles, 118 Minn. 364, 41 other similar discomforts or dangers result, L.R.A. (N.S.) 456, 136 N. W. 863, Ann. Cas. so as to amount to an injury to the com1913E, 433; Union Oil Co. v. Portland, 198 munity. Fed. 441; Jamieson v. Indiana Natural Gas Fischer v. St. Louis, 194 U. S. 361, 48 motorcycles, especially in the absence of upon the party attacking the ordinance as evidence that it was in fact to be used as an unreasonable or oppressive exercise of a public garage. The court remarked that the police power, to show aflirmatively and any attempt to limit the right to erect and clearly its unreasonableness. occupy buildings for the sale of vehicles, The further objection that the ordinance automobiles, and motorcycles would be un- was void because it discriminated in favor constitutional, on the ground that the busi- of those persons engaged in a like business ness of selling such vehicles was as lawful at the time the ordinance became effectual as the sale of groceries or dry goods. was disposed of on the ground that the ordi

Subsequently to the decision of the Illi-nance, by its terms, applied as much to the nois supreme court in People ex rel. Busch- maintenance of a public garage previously ing v. Ericsson, post, 607, the same court in established to the one subsequently People ex rel. Keller v. Oak Park, 266 Ill. sought to be established. 365, 107 N. E. 636, upheld the validity of As bearing on the question of reasonablean ordinance rendering it unlawful to con- ness of the ordinance as applied to the struct or maintain a building for a public particular case, the report shows that the automobile garage on any street where two site of the proposed location of the garage thirds of the buildings within a radius of was on the north side and facing Madison 500 feet are used exclusively for residence street; that there were no residences or purposes, without the written consent of other buildings of any kind in that block the majority of the property owners ac- facing Madison street on that side; that cording to frontage within such radius, as in the block facing that street on the south against objections that the ordinance was side and opposite the proposed site were void for unreasonableness because it re- | five business buildings and no residences; quires the written consent of the owners, that north of the proposed site and in the even though the garage may be built on a same block and within much less than 500 purely business street; because it requires feet were nine residences, and immediately the written consent of an unreasonably south of the business buildings on the other large number of property owners; because, side of Madison street and within the 500by reason of the size of the territory speci- feet limit were nine residences, and that fied, the distinction between a residence other residences east and west of the block street and a business street is wiped out; referred to were located within the 500-feet because property is included that cannot be limit. affected. The court, in considering the ob- The court in the above case rejected as jection of unreasonableness because of the unreasonable the contention made by the size of the area in which the property own party seeking to establish the garage that ers' consent must be obtained, said that, ad- only buildings occupied as residences were mitting that the territory was large, it did entitled to be counted as being used for not appear from an inspection of the ordi- residence purposes, and that private garages nance itself, nor from the testimony in the and barns used in connection with those record, that the ordinance was such an un- residences were to be counted as buildings reasonable exercise of the power of the in determining the proportion of buildings city council as to be invalid; and observed used for residence purposes.

Α. Η. Ν. in this connection that it was incumbent


L. ed. 1018, 24 Sup. Ct. Rep. 673; New ises mentioned 200 gallons of gasolene, 100 York ex rel. Lieberman v. Van De Carr, gallons of lubricating oil, 50 gallons of kero199 U. S. 552, 50 L, ed. 305, 26 Sup. Ct. sene, and 35 automobiles. Rep. 144; Metropolitan Bd. of Health v. It appears that No. 130 West 102d street, Heister, 37 N. Y. 661; Cronin v. People, referred to in the application, adjoins on 82 N. Y. 318, 37 Am. Rep. 564; Griffin v. the west public school No. 179. Over 1,700 Gloversville, 67 App. Div. 403, 73 N. Y. pupils attend the school, of whom about 700 Supp. 684; Dill. Mun. Corp. 5th ed. $$ 301, are under the age of ten years. On the east 303, 727; Buffalo v. Chadeayne, 134 N. Y. and adjoining the relator's premises is a 163, 31 N. E. 443; New York v. Foster, 148 five-story tenement house occupied by ten App. Div. 258, 133 N. Y. Supp. 152, affirmed families. In the rear of that another fivein 205 N. Y. 593, 98 N. E. 1100; Troy v. story tenement house, occupied by fifteen Winters, 4 Thomp. & Co. 256; Re Newell, 2 families, separated from the garage by a Cal. App. 767, 84 Pac. 226; Patterson v. court 5 feet wide. There were three fires Johnson, 214 Ill. 481, 73 N. E. 761; First in the relator's garage between February Nat. Bank v. Sarlls, 129 Ind. 201, 13 L.R.A. 1, 1911, and the time of the commencement 481, 28 Am. St. Rep. 185, 28 N. E. 434; of th proceeding. State v. O'Neil, 49 La. Ann. 1171, 22 So. The application for the permit was denied 352; Winthrop v. New England Chocolate solely on the ground, as it is alleged in the Co. 180 Mass. 464, 62 N. E. 969; Com. v. petition, that the relator's premises are Hayden, 211 Mass. 296, 97 N. E. 783; Micks situated within 50 feet of the nearest wall v. Mason, 145 Mich. 212, 11 L.R.A. (N.S.) of a school building. The relator seeks in 653, 108 N. W. 707, 9 Ann. Cas. 291; State this proceeding to compel the defendants to v. Wittles, 118 Minn. 364, 41 L.R.A.(N.S.) ( issue the permit applied for. So far he has 456, 136 N. W. 883, Ann. Cas. 1913E, 433; been unsuccessful. Neumann v. Hoboken, 82 N. J. L. 275, 82 He challenges the regulation quoted as Atl. 511; Seattle v. Hinckley, 40 Wash. being in violation of his constitutional 468, 2 L.R.A.(N.S.) 398, 82 Pac. 747. rights, because it deprives him of his prop

erty without due process of law, and denies Cuddeback, J., delivered the opinion of to him the equal protection of the law. It the court:

seems to me that the regulation is not obChapter 899, Laws of 1911, authorized jectionable on the score stated by the rethe municipal explosives commission of New lator. The object sought is the preservaYork city to make regulations for “the bet- tion of public safety and the welfare of ter prevention of fires.” The act also pro- the community. The enactment is not an vided that such regulations when approved arbitrary interference with the rights of the by the fire commissioner should constitute individual, but is a fair, reasonable, and a chapter of the Code of Ordinances of the appropriate exercise of the police power. city. Violation of the ordinances is made Frank L. Fisher Co. v. Woods, 187 N. Y. a misdemeanor.

90, 12 L.R.A. (N.S.) 707, 79 N. E. 836; Pursuant to the statute the following Rochester v. West, 164 N. Y. 510, 53 L.R.A. regulations were duly adopted :

548, 79 Am. St. Rep. 659, 58 N. E. 673. “Section 366. It shall be unlawful for any There certainly can be no criticism of the person to store, house, or keep within the regulation so far as it relates to new estabcity of New York any motor vehicle con- lishments of the kind forbidden. Chicago taining volatile inflammable oil, except in v. Ripley, 249 Ill. 466, 34 L.R.A.(N.S.) 1186, a building, shed, or inclosure, for which a 94 N. E. 931, Ann. Cas. 1912A, 160; Laugarage permit shall have been issued by the relle v. Bush, 17 Cal. App. 409, 119 Pac. fire commissioner.”

953. "Section 370. No garage permit allowing The relator's main objection to the ordithe storage of volatile inflammable oil shall nance is that it is made applicable to a be issued for any building, shed, or in- building that had been used as a garage and closure: (a) Which is situated within fifty for the storage of gasolene, lubricating and (50) feet of the nearest wall of a building other oils prior to the time the enactment occupied as a school, theater, or other place took effect. The building on the relator's of public amusement or assembly; (b) premises was constructed in 1903. The which is occupied as a tenement house or school was built two years before. From hotel," etc.

the time of its erection the relator's buildAfter these regulations became of force, ing has been used as a garage by himself the relator applied for a permit to use as or others, and a permit therefor was issued a garage No. 130 West 102d street in the each year under previous regulations until borough of Manhattan, which he held under the year 1910. Since that time the business lease. The relator set forth in his appli-has been carried on without a permit. The cation that he desired to store on the prem- 'relator holds under a lease which has twentyone years to run at an annual rent of one and private property and business is $300. This rent the relator is under obliga- always subject to a legal exercise thereof." tion to pay, and his allegation is that the In Standard Oil Co. v. Danville, 199 Ill. building is not available for any kind of 50, 64 N. E. 1110, an ordinance made it business other than a garage. Hence his unlawful to keep or store petroleum or exgrievance.

plosive oil within 1,000 feet of any dwellIn Tenement House Dept. v. Moeschen, ing. The court in upholding the ordinance 179 N. Y. 325, 330, 70 L.R.A. 704, 103 Am. said: “The fact that the greater number St. Rep. 910, 72 N. E. 231, 232, 1 Ann. Cas. of residences, business houses, etc., now 439, IN. 203 U. S. 583, 51 L. ed. 328, 27 within 1,000 feet of the plant of the appelSup. Ct. Rep. 781, it was held that a statute lant company were built after the plant had requiring sinks and privy vaults in existing been located at its present site does not tenement houses to be removed, and to be entitle the appellant company to insist that replaced by individual water-closets, was a

it has become vested with the right to conproper and constitutional exercise of the tinue to operate its plant and keep on storpolice power, though the expense of making

age the inflammable, explosive, and offenthe necessary changes was very considerable. sive oils, liquids, and substances specified The court said: "It is a well-recognized in the ordinance. The health, safety, and principle in the decisions of the state and comfort of the people are the controlling Federal courts that the citizen holds his considerations, and prescriptive rights to property subject not only to the exercise of

endanger either cannot be acquired.” the right of eminent domain by the state,

The relator in his brief says that in the but also subject to the lawful exercise of city of New York there are 75 garages, some the police power by the legislature; in the of them valuable structures, which will one case property is taken by condemnation

come within the provisions of the ordinance and due compensation; in the other the under consideration if it is declared valid. necessary and reasonable expenses and loss To my mind that does not furnish an arguof property in making reasonable changes ment against the enactment sufficient to in existing structures, or in erecting addi: condemn it. The storing of volatile inflamtions thereto, are damnum absque injuria.

mable oil in garages located near buildings In Laurel Hill Cemetery v. San Francisco, wherein people congregate is plainly a dan216 V. S. 358, 54 L. ed. 515, 30 Sup. Ct.

gerous practice. The legislature has auRep. 301, an ordinance prohibiting the bur.thorized the adoption of this ordinance ial of the dead within the limits of the which will stop that practice. In particular city was sustained. In that case it appeared instances some loss will follow the enforcethat the plaintiff was the owner of a cem

ment of the ordinance, but it cannot be etery. The land had been dedicated as a

avoided on that ground. It must be tested burying ground before it was included in with a view to its general purpose and the limits of the city. A great number of its efficiency to effect that end. burial lots had been sold and a large

As was said in the Tenement House Case, amount of money had been spent by the

supra: "It is well settled in this court owners in embellishing the grounds. There and in the Supreme Court of the United remained unsold lots to the estimated value States that the constitutionality of a stat. of $75,000. The court said: "The only ute may be determined by considering its question that needs to be answered, if not language and the material facts of which the only one before us, is whether the plain the court can take judicial notice. tiff's property is taken contrary to the 14th It is not the hardship of the individual case Amendment.”

that determines the question, but rather the The answer was that it was not.

general scope and effect of the legislation In Union Oil Co. v. Portland (D. C.) 198 as an exercise of the police power in proFed. 441, the city council had passed an tecting health and promoting the welfare ordinance defining the limits wherein crude of the community at large.” (p. 330.) petroleum might be stored within the city.

Read in the light of the decisions cited, The plaintiff purchased land and began the the regulation of the municipal explosives erection of a storage plant for petroleum commission is valid and should be sustained. outside these limits, whereupon the council

The order appealed from should be afamended the ordinance so as to bring the firmed, with costs. plaintiff's property within the restricted territory. The court sustained the ordi- Werner, Hiscock, Chase, Collin, and nance as amended, saying that “the right to Hogan, JJ., concur. Willard Bartlett, exercise the police power is a continuing Ch. J., absent.

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