"It is contended in this case, however, that, as constructed, the building violates so much of section 7 of article 31 of the code as provides that: 'In the rear of every tenement hereafter erected, there shall be a yard, extending across the entire width of the lot, at every point open from the ground to the sky unobstructed except by fire escapes or uninclosed outside stairs and porches. The depth of said yard, measured in the clear from the porches to the rear line of the lot shall not be less than 15 feet in any part.'

"The defendant Philip H. Garelick is the contractor for the work of erecting the building; he also appears to have some interest in the land.

"Upon November 24, 1913, the department of buildings revoked the permit issued for the construction of the building, upon the ground that its erection would be contrary to that part of section 7 of article 31 just quoted. This action of the department was taken, pursuant to a writ of mandamus issued out of this court in the case of Stella W. Stewart, Relator, v. Department of Buildings, Respondent, being File No. 58,063. These defendants were not parties to that proceeding, and are therefore not bound by it. It was instituted by Mrs. Stewart as the owner of property immediately contiguous on the north of the premises herein involved. The writ which was granted provided that, as the building in question was being erected in violation of section 7 of article 31, cited above, the department of buildings should, after due notice to the defendants Kunin and Swirskey, enter an order stopping the construction of the building and preventing resumption of the work thereon until the building code had been complied with in the respect mentioned. This writ of mandamus issued November 20, 1913.

"After due revocation of the permit by the department of buildings, work was resumed by the defendants Kunin and Swirskey upon the building, and was continued, intermittently, if not consecutively, until as late a day as December 30, 1913. Some of this lastmentioned work, however, if not all of it, was prosecuted by them in order that thereby the issues raised herein might properly be made the basis of a suitable action.

181 Mich.-39.

"This bill was filed by the department of buildings -described in the bill as the building commission of the city of Detroit-on January 10, 1914, and seeks permanently to enjoin the defendants from the further erection of the building until compliance has been had with the provisions of the building code.

"Demurrer was interposed by the defendants, and, coming on to be heard by Judge Van Zile in this court, was overruled by him, and the cause was set down for immediate hearing as soon as answer should be filed. The defendants have now answered, and also seek affirmative relief. They ask that the depart ment of buildings be enjoined from in any manner interfering with the completion of the building.

"During the progress of the hearing a view of the premises was had. It was then learned by the complainant for the first time that there had been, without authority, a departure from the plan filed with it and pursuant to which its permit was originally granted. The plan providing for the entrances to the first and second floor apartments upon Third avenue has been abandoned, and these apartments have been constructed so that entrance to them would be from Merrick avenue. Thus the only apartment left facing Third avenue was the one in the basement upon that street. This has resulted practically in making the frontage of the tenement wholly upon Merrick

avenue.

"As bearing upon the general attitude of the defendants, it is likewise significant to note that the view of the premises also disclosed their failure to comply with an alteration exacted by the department by which the rear porches were to be reduced in size. These porches have been constructed as originally planned, and not in conformity with the reduction in size ordered.

"The defendants take the position that the requirement of section 7 of article 31, above cited, is so unreasonable that it must be held invalid. They furthermore invoke the defense of estoppel. In this respect it is contended that the complainant is guilty of laches in the premises, in permitting the work to be undertaken under its permit and to be prosecuted until a time when the defendants, in good faith, had

expended a very large sum of money upon their undertaking.

"Approaching the question of the claimed invalidity of section 7, one is confronted with the presumption of the validity of this enactment. The duty of establishing invalidity rests upon the defendants. The court is required, if it can consistently do so, to give to the provision such a reasonable construction as will sustain it. It has no right to invade the legislative province. Its power is confined to those cases in which a municipal ordinance is clearly and manifestly made to appear to be unreasonable or oppressive in its operation.

"I am unable to reach the conclusion contended for in this respect by the defendants. Upon analysis of this section it may appear that some other or different provision might equally serve the demands of wholesome housing in a populous community such as the city of Detroit. That, however, is a matter for the legislative, and not the judicial, discretion. Such provisions as these are intended not solely for the welfare of the occupants of the premises being constructed; they are beneficial as well for those who live in buildings immediately adjacent and for the community as a whole. Just what specific considerations operated upon the common council in reaching the conclusion enacted by the ordinance does not appear; nor is there any testimony which, in my view, shows the application of section 7 to the lot in question to be unreasonable. This much must be taken for granted: The common council acted with knowledge of the prevailing width and depth of lots in this community. Even should some unreasonable result appear in an isolated case as the consequence of the council's action, this could not be made to justify invalidating the enactment. In my judgment, therefore, neither in its general terms nor in its specific application is the ordinance shown to be unreasonable.

"The discovery upon the inspection of the premises that the plan of the building had been changed without authority so as to give it, as was said above, practically its whole frontage on Merrick avenue presents a situation not contemplated by the pleadings.

"Under the plan as originally presented and approved by the department, the contemplated building was approved as coming within the provisions of section 4, and the position was taken that section 7, being in conflict therewith, was not applicable.

"In my view, however, these two sections must be read together, or construed as in harmony with each other, and not hostile to each other. This building, with these two sections so construed, must, in my judgment, as it now stands, be regarded as fronting upon Merrick avenue, and not on Third avenue, as the department viewed the matter when issuing the permit. This is the situation which has been created by the voluntary and unwarranted act of the defendants. It may be noted in passing that, even if the building were regarded as fronting on Third avenue and its rear as abutting the alley to the east, the provision of section 7 is violated.

"With section 7 held to be enforceable, is it shown that the defendants are entitled to any equitable relief under their claim that the complainant is estopped from maintaining its bill? No permit was required as a prerequisite to the commencement of this building. The issuance of one was a mere gratuity. The department acted under the misconstruction of the code in making the interpretation that section 7 had no application to the situation. Here, then, was a permit issued without sanction of the ordinance and under. a misconstruction of it. The department files this bill under the authority given to it by section 7 of article 2, in which it is given power to 'apply to any court of competent jurisdiction to restrain any person from such disobedience [as is here involved] notwithstanding such disobedience may be punishable by fine or imprisonment.'

"The violation of article 7 of section 31 was brought to the attention of the complainant some time before September 25, 1913. It was brought to the attention of these defendants, surely, upon October 10, 1913, if not before. Upon this last-named date they received a written notice from the complainant, advising them that further continuance of the work must be done at their own peril.

"What, then, is the situation of the defendants? They procured a permit which had no legal status,

since no such authorization is warranted by the ordinance. The defendants must be held to have had notice of this. All persons dealing with municipalities and their agents act with constructive, if not actual, knowledge of the limitations upon the delegated powers of cities and their instrumentalities. The defendants took nothing with their permit. It was an extralegal instrument. Of itself, it was without efficacy.

"The complainant concededly did allow the defendants to proceed with the building until the formal order of revocation was made. Does this operate to estop it herein? In discussing this question, the conduct of the defendants must be considered.

"By the terms of section 2 of article 31 they were required to comply with the terms of the building code. By section 8 of article 3 it is made unlawful to alter or modify the plans approved by the department. Any alteration may be made only after written application therefor is presented in writing, and written approval obtained. Section 9, art. 3. The defendants have wilfully disregarded these important provisions. Furthermore, they had notice, as has already been stated, as early as October 10, 1913, and probably earlier, that this building, as approved, was in contravention of the ordinance.

"Keeping these facts in mind, what is to be said of the claim of estoppel? It is the position of the complainant that estoppel cannot be interposed to deprive the city of the beneficial enforcement of the ordinance. It is contended that a ministerial board, such as the complainant, cannot by such conduct as is here shown foreclose compliance with the ordinance. In my view, it is not necessary to pass upon that contention, for it is beside the facts of this case.

"The facts which call for the application of a principle are these: There was consent by the complainant to the erection of an unlawful building. There was notice while work was in progress to the defendants that their plan was unlawful, and some continuation of the work by them after such notice. They themselves disregarded the obligation of the ordinance by building, without consent, a structure different from the one for which they obtained approval.