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to great consideration. This is a recent act of the legislature, and the construction relied upon was not followed for any length of time. The construction placed upon the act by the State highway commissioner was undoubtedly a matter of first impression, and he changed his views when advised by the attorney general, whose duty it is to advise the various State officers as to these matters.
The judgment of the circuit court is affirmed, with costs.
MCALVAY, C. J., and BROOKE, STONE, OSTRANDER, BIRD, MOORE, and STEERE, JJ., concurred.
BUILDING COMMISSION OF THE CITY OF DETROIT v.
1. MUNICIPAL CORPORATIONS-EQUITY-ORDINANCES—ENFORCEMENT OF BUILDING ORDINANCE. An ordinance of the city of Detroit providing that the
department of buildings shall have power, after notice and a hearing, to stop the construction, alteration, etc., of any building which violates the restrictions of the ordinance, and that the department may apply to the court to restrain the further violation of its terms, authorizes an injunction at the instance of the department as if the
structure had been first declared to be a public nuisance. 2. SAME-BUILDING CODE-RESTRICTIONS.
Such ordinance is not invalid because it prescribes what
percentage of a lot may be occupied with a tenement, and prescribes the size of the yard at the rear: the restrictions being for the benefit of the community as a whole and of the adjacent property.
The presumption being that an ordinance is valid, the duty
of establishing its invalidity rests on the party who attacks it.
The court has no right to invade the province of the legis
lature, and is required, if it can consistently do so, to give an ordinance such a construction as will sustain it: the power to declare an enactment invalid is limited to cases in which it is clearly made to appear to be unrea
sonable or oppressive in its operation. 5. SAME-UNREASONABLENESS.
Mere evidence that some unreasonable result occurs in an
individual case is not ground sufficient to invalidate an
ordinance. 6. SAME-INJUNCTION-ESTOPPEL,
Complainant building commission was not estopped from
maintaining an injunction bill to prevent the erection of an apartment building not in conformity with the building code, although it had granted a permit to construct the building where the ordinance did not require the issuance of a permit for the erection of a tenement occupied by three or more families who do cooking, etc., on the premises.
Appeal from Wayne; Murphy, J. Submitted June 17, 1914. (Docket No. 94.) Decided July 24, 1914.
Bill by the building commission of the city of Detroit against Samuel Kunin and others for an injunction to prohibit an alleged violation of the municipal building code. From a decree for complainant, defendants appeal. Affirmed.
Richard I. Lawson, Corporation Counsel, and James H. Lee, Assistant Corporation Counsel, for complainant.
McHugh, Gallagher, O'Neil & McGann, for defendants
KUHN, J. The bill of complaint in this cause prays
for an injunction restraining the defendants from continuing the construction of a building in the city of Detroit alleged to be in violation of an ordinance of said city known as the building code. The defendants demurred to the bill of complaint, and, upon their demurrer being overruled, filed an answer and crossbill denying complainant's right to injunctive relief. Upon hearing, the cross-bill was dismissed and the defendants enjoined, as prayed for in complainant's bill of complaint. From this decree the defendants have appealed, and counsel, in their brief, state that the questions involved are as follows:
(1) May a municipality enjoin a threatened violation of an ordinance ?
(2) Is section 7, art. 31 of the building code valid?
(3) After issuing the permit and allowing defendants to expend from $10,000 to $12,000 upon the building, is the city estopped from complaining of the violation of the ordinance ?
In support of the contention that equity will not enjoin a threatened violation of a municipal ordinance, the cases of the Village of St. Johns v. McFarlan, 33 Mich. 72 (20 Am. Rep. 671), and Micks v. Mason, 145 Mich. 212, 214, 215 (108 N. W. 707, 11 L. R. A. [N. S.] 653, 9 Am. & Eng. Ann. Cas. 291), are relied upon. In the latter case this court said:
“The question here is whether a municipality in pursuance to delegated authority to fix fire limits and to direct the manner of constructing buildings within such district with respect to protection against fire, may, by ordinance, provide that a building not so constructed shall be deemed a nuisance and authorize its abatement as such. Such right was not negatived by Village of St. Johns v. McFarlan, supra, and has never been denied by this court. The question has often arisen in other jurisdictions, and, so far as our examination enlightens us, the authority to abate new buildings constructed in violation of existing ordinances has been affirmed whenever the question has arisen. Not in all cases has the right to abate been
rested on the ground that a building not constructed in compliance with the ordinance is a nuisance per se, but in some it has been deemed sufficient to say that the building so erected was erected in defiance of law; but, whatever the reasoning adopted, the right has been affirmed. See Hine v. City of New Haven, 40 Conn. 478; Baumgartner v. Hasty, 100 Ind. 575 [50 Am. Rep. 830]; First Nat. Bank of Mt. Vernon v. Sarlls, 129 Ind. 201 [28 N. E. 434]. 13 L. R. A. 481 [28 Am. St. Rep. 185] ; Commonwealth v. McDonald, 16 Serg. & R. (Pa.) 390; Inhabitants of Arundel v. McCulloch, 10 Mass. 70; Klingler v. Bickel, 117 Pa. 326 [11 Atl. 555] (distinguishing Fields v. Stokley, 99 Pa. 306 [44 Am. Rep. 109], cited by the circuit judge); Ford v. Thralkill, 84 Ga. 169 (10 S. E. 600]; McKibbin v. Fort Smith, 35 Ark. 352; Eichenlaub v. City of St. Joseph, 113 Mo. 395 [21 S. W. 8], 18 L. R. A. 590; Freund on Police Power, & 528."
The ordinance in question provides, in addition to its penal provisions, that:
"The department of buildings shall have the power after notice and hearing to stop the construction, repair, alteration or removal of any building, fence, billboard, sign or other structure, when being constructed in violation of this ordinance, and to order in writing any and all persons in any way engaged, to stop and desist from such construction, and such construction shall not be resumed until the terms of this ordinance shall have been complied with.
"If such order is not obeyed, the department of buildings may apply to any court of competent jurisdiction to restrain any person from such disobedience, notwithstanding such disobedience may be punishable by fine or imprisonment as hereinafter provided.”
It is true that the ordinance does not in terms declare a building erected in violation of its provisions a nuisance, but, by virtue of this provision for its enforcement, it does so in effect, and therefore, in our opinion, brings the situation within the spirit of decisions above cited.
The other two questions involved in this appeal are clearly treated in the opinion of the learned trial judge in deciding the cause below, and, as we agree with his conclusions, will adopt his opinion as our own:
“Pursuant to a local act passed at the legislative session of 1907, authorizing the city of Detroit to regulate the construction of buildings, and to establish a department of buildings, the common council of that city duly adopted an ordinance known as the building code of the city of Detroit, which was in force at the time in issue herein.
"By the terms of the code, any building intended to be occupied, wholly or in part, as a residence for three or more families living independently of each other, and having cooking done on the premises, is called a 'tenement.' Apparently through omission no building permit is required to be issued by the department of buildings for the construction of a tenement, although permits must be obtained before the construction of any other kind of building may be begun.
"Upon July 21, 1913, however, the department of buildings issued a building permit for a tenement to the defendant Swirskey, as architect, and to the defendant Kunin, as owner of a lot situated on the northeast corner of Third and Merrick avenues, in the city of Detroit, this lot, having a frontage as platted of 45 feet on Third avenue, and a depth of 125 feet on Merrick avenue. The accompanying plans filed with the department of buildings showed that a brick veneered building of nine housekeeping apartments for families was intended to be built, entrance into three of which was to be had from Third avenue, and entrance to the others was to be had from Merrick avenue, One of the three apartments facing Third avenue was in the basement; the others, for the first and second floors of the building, had their entrance from the first floor, Work upon the construction of the building was begun soon after the permit was obtained. As planned, this tenement is in compliance with section 4 of article 31 of the code. By that section no tenement is permitted to cover more than 80 per cent. of a lot bounded by two or more intersecting streets.