"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 mandanus 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.

[610] "This bill was filed by the department of buildings described, in the bill as the building commission of the city of De troit-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 department 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 apart; ments have been constructed so that entrance Ann. Cas. 1916C.-61.

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 [611] 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.

[612] "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 defendant. 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, [613] since no such authoriza

tion 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 extralega! 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 unlaw. ful 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. [614] They failed to comply with the valid order of the board with respect to the rear porches.

"In my judgment, they are not in a position to invoke the doctrine of equitable es toppel, even though, under other cireumstances, where entire good faith upon the part of those making it is shown, it be available as against a municipality in an analogous situation.

"A decree may be taken dismissing the cross-bill and granting the relief sought in the bill."

NOTE.

Right of Municipality to Enjoin Violation of Municipal Ordinance.

Generally.

While a violation of a municipal ordinance will ordinarily be enjoined at the suit of a private person sustaining a special injury (see the note to Bangs v. Dworak, 13 Ann. Cas. 202), a court of equity will not, at the suit of the municipality itself, restrain the threatened violation of an ordinance unless the violation of the ordinance constitutes a nuisance. De Queen v. Fenton, 98 Ark. 521, 136 S. W. 945; Rochester v. Walters, 27 Ind. App. 194, 60 N. E. 1101; St. Johns v. MeFarlan, 33 Mich. 72, 20 Am, Rep. 671; Higgins v. Lacroix, 119 Minn. 145, 137 N. W. 417, 41 L.R.A.(N.S.) 737; Kansas City Gunning Advertising Co. v. Kansas City, 240 Mo, 659, 679, 144 S. W. 1099, 1104; Manchester v. Smyth, 64 N. H. 380, 10 Atl. 700, 18 Am. & Eng. Corp. Cas. 474; Brockport v. Johnston, 13 Abb. N. Cas. (N, Y.) 468; New Rochelle v. Lang, 75 Hun 608, 27 N. Y. S. 600; Mt. Vernon v. Seeley, 74 App. Div. 50, 77 N. Y. S. 250; Reynolds v. Harris, 11 Ohio Dec. (Reprint) 509, 27 Cinc. L. Bul. 229; Williamsport v. McFadden, 15 W. N. C. (Pa.) 269; Philadelphia v. Lyster, 3 Pa. Super. Ct. 475; Honesdale v. Weaver, 2 Pa. Dist. 344; Butler v. Logan, 19 Pa. Dist. 952; Ellwood City v. Mani, 16 Pa. Co. Ct. 474; Waupun v. Moore, 34 Wis. 450, 17 Am. Rep. 446; Janesville v. Carpenter, 77 Wis. 288, 46 N. W. 128, 20 Am. St. Rep. 123, 8 L.R.A. 808. And see Mt. Vernon First Nat. Bank v. Sarlls, 129 Ind. 201, 28 N. E. 434, 28 Am. St. Rep. 185, 13 L.R.A. 481, 37 Am. & Eng. Corp. Cas. 445; Monticello v. Bates, 163 Ky. 38, 173 S. W. 159.

In Kansas City Gunning Advertising Co. v. Kansas City, 240 Mo. 659, 679, 144 S. W. 1099, 1104, the court said: "The object of the cross-bills of defendants is to secure, the enforcement of the ordinance by a mandatory injunction, The ordinance is a quasicriminal enactment. Its sanction is a fine against the owner and the prevention of his injurious use of his property by causing its removal so as to conform to the ordinance in the event he should continue, after the passage of the ordinance and beyond the time limit for compliance therewith, to use his property to the public detriment as defined in said ordinance. The jurisdiction of equity to prevent irreparable injury to property is not

divested by the fact that the act to be enjoined may also be a violation of the criminal law; neither does a court of equity lack power to enjoin the continuance of a public nuisance. Its action in these instances is incidental and grows out of its inherent jurisdiction to protect property rights from destruction and to conserve the morals of the people. .. But a court of chancery is not a medium for the enforcement of the criminal law, hence it scans closely transactions having that aspect before entertaining jurisdiction. It may be that an exigency could arise which would warrant a suit m equity to enjoin the plaintiff and other persons from violating the terms of the ordinance under review, but we do not think that it now exists. The ordinance passed by Kansas City in the proper exercise of its governmental power contains within itself the efficient means of enforcement against this plaintiff and all other persons affected thereby. It points out in terms (sections 9 and 10) the proper methods by which and the time within which obedience to its commands may be compelled, thus affording to the city a full, complete and unembarrassed remedy by legal procedure, and leaving no present basis for its counter-suit in equity.. It follows that there is no impediment in the way of a full enforcement of all the provisions of said ordinance (except section 4) in the manner therein specified and defined, and plaintiff had the full measure of relief to which it was entitled by the injunction awarded against the enforcement of section 4; and that its bill should have been dismissed as to all other purposes and objects; and that the cross-bill filed by defendants should not have been sustained, for the reason that the city has a full, complete and unembarrassed remedy at law in the manner pointed out in its ordinance to enforce all the provisions thereof, except section 4, at once against plaintiff and other owners of bill boards, bulletin boards and advertising structures." In Butler v. Logan, 19 Pa. Dist. 952, it was said: "There remains, however, the question whether a court of equity has authority to intervene in order to the protection of an exclusive right granted by a municipal ordinance. That courts of equity may, in a proper case, exercise their authority to prevent or abate a nuisance is beyond question. But we are not now dealing with a public nuisance. It is not alleged, nor does the proof show, that the defendants were collecting garbage in a manner which created a public nuisance. Their equipment was of the kind required by the ordinance under consideration, and there was no complaint that their work was carried on in a negligent manIn fact, their vocation was fostered to some extent by a lack of diligence on the part

ner.

so far, therefore, as the mere question of the infraction of the ordinance is concerned, a court of equity is without authority to re; dress the public wrong growing out of the violation. The ordinance itself provides a penalty for its violation, and this remedy must be invoked for the desired redress, so far as the public right growing out of the provisions of the ordinance is concerned.

We conclude, first, that, in so far as the borough of Butler seeks to restrain by injunction violations of its ordinance by the defendants, a court of equity is without authority to intervene. If the penalty provided for in the ordinance is not such as to prevent its violation, the municipal authorities can so increase it as to make it prohibitive of the offense. This, as we take it, may be done in any case where prevention of an offense is justifiable." In Janesville v. Carpenter, 77 Wis. 288, 46 N. W. 128, 20 Am. St. Rep. 123, 8 L.R.A. 808, wherein it was charged that the erection of a building on piles driven in the bed of a river was a violation of a city ordinance, it was held that that fact would not give a cause of action for an injunction. In Mt. Vernon v. Seeley, 74 App. Div. 50, 77 N., Y. S. 250, which was an action to enjoin the posting of advertising bills within a city until an ordinance requiring the obtaining of a permit had been complied with, it was held that as there was no allegation in the complaint or any facts from which the conclusion could be derived that the act sought to be restrained was a nuisance, an injunction would be denied. In Borough of Forty Fort v. Forty Fort Water Co. 9 Kulp (Pa.) 241, the court said: "Conceding that the borough council has authority, under the general powers contained in its charter, to enact the ordinance in question, its violation by way only of a continuance after it went into effect of acts previously begun, and without knowledge of the pendency of such legislation, or by way of neglecting to ask a second time for a permit for which council had exacted a clearly unwarranted concession, is not shown to constitute any irreparable injury or to entitle the borough to specific relief, as by the provisions of the ordinance itself the prescribed remedy for a violation is a fine, and, as has been shown, an action is already pending to recover a fine for failing to file a map." In De Queen v. Fenton, 98 Ark. 521, 136 S. W. 945, which was a suit brought by the

city of De Queen to enjoin the defendants from permitting stock and cattle owned by them from running at large within the limits of said city, it was alleged in the complaint that two ordinances had been passed by the proper authorities of the city prohibiting the running at large of cattle and other stock within its corporate limits, one of the ordinances declaring it to be unlawful for the owner of stock or cattle to allow the same to run at large in the city, and penalizing the owner and impounding the stock or cattle. and the other ordinance declaring the running at large of stock or cattle within the city to be a nuisance, and imposing a fine on the owner. The complaint further alleged that the defendants resided outside of the city and knowingly permitted their stock and cattle to run at large within the limits thereof in violation of the ordinances, thereby creating a public nuisance. It was alleged that the ordinances were difficult of enforcement, and that under the statutes of the state the defendant's cattle could not be impounded because the defendants resided outside of the city, and for these reasons it was alleged that the city had no adequate remedy to protect its citizens against the depredations of the cattle and stock, and on this ground it based its right to obtain an injunction against the defendants. The court said: "The violation of such ordinances is an infraction of the criminal law, and the police courts of cities and towns are the proper forums in which to pursue a criminal prosecution for the violation thereof. A chancery court has no criminal jurisdiction, and will not exercise its powers solely to enforce criminal laws. A complete and adequate remedy for the violation of the criminal statutes of the state and of municipal ordinances is afforded by the courts of law, and those courts have full power to pass upon the scope and validity of such laws and ordinances. It has been held by this court that the chancery court has no jurisdiction to restrain acts solely because they are criminal. From the allegations

of the complaint it appears that there are two ordinances of the city of De Queen prohibiting the acts complained of. Criminal prosecution can therefore be instituted against the defendants for these acts, which, it is alleged, are violations of these ordinances. If these ordinances have in fact and in law been violated by the defendants, there can be no legal difficulty in enforcing them.”

In a few instances municipal ordinances have been enforced by injunction under a charter or statute expressly so providing. Stilwell v. Buffalo Riding Academy, 21 Abb. N. Cas. 472, 4 N. Y. S. 414: Ogden v. Welden. 61 Hun 621 mem. 15 N. Y. S. 790. And see Young v. Scheu, 56 Hun 307, 9 N. Y. S. 349. And see the reported case. In Rochester v.

Gutherlett, 2 N. Y. 309, Ann. Cas. 1915C 483, 105 N. E. 548, L.R.A.1915D 209, the court said: "The right to maintain an action to restrain violation of penal and other ordinances is expressly given to the plaintiff, as we have seen by its charter. Such right of action is concurrent with the legal action to recover for a violation of the ordinance. It is based upon the inadequacy as a remedy of successive actions following a series of violations. The equitable action is designed not only to prevent a multiplicity of legal actions, but to prevent a continuous injury to public health that might exist unabated while wilful violations of the ordinance were continued." So, in New York City, under its charter, it has been held that an action for an injunction will lie at the suit of the department of buildings for the enforcement of the sections of its building Code with respect to the erection of sky signs. New York v. M. Wineburgh Advertising Co. 122 App. Div. 748, 107 N. Y. S. 478; Kobbe Co. v. New York, 122 App. Div. 755, 107 N. Y. S. 489. And see Matter of New York, 122 App. Div. 741, 107 N. Y. S. 484.

If the violation of an ordinance constitutes a public nuisance it will be enjoined. Pine City v. Munch, 42 Minn. 342, 44 N. W. 197, 6 L.R.A. 763. And see the reported case. See also, as to ordinances establishing fire limits, the following subdivision of this note. In Pine City v. Munch, supra, the court said: "We can see no valid reason why, in proper cases falling within some recognized head of equity jurisdiction, a municipal corporation, as the representative of the state pro hac vice, may not, at its election, resort to a court of equity, to aid in enforcing its public duties to preserve the health of its inhabitants. As there is, in analogous cases, a judicial remedy in favor of the citizen, it would seem, on principle, that the corporate authorities should be allowed to resort to the courts to aid them when the citizen is in the wrong. Limited strictly to such cases, we do not see that this right at all impinges upon the rule that a private person, cannot maintain an action to abate a public nuisance not causing injury special in kind to himself. Neither would this be the exercise by the corporation of a control over nuisances not granted by its charter, but merely resorting to the courts for a more effectual judicial remedy to aid in enforcing its granted powers. There are many cases, of which this would seem to be one, where the remedy by injunction would be much more efficacious than by enforcing the penalties of an ordinance; and where the nuisance is one affecting only or principally the inhabitants of the municipality, and its abatement is among the powers granted or duties imposed upon it, there would seem to be no good reason why the action to abate might

not be brought in the name of the municipality, as well as in the name of the state itself by the attorney general.”

Ordinance Prohibiting Erection of Wooden Building within Fire Limits. It has been held that a municipality cannot maintain a suit to restrain the threatened violation of a penal ordinance, which prescribes limits within which a wooden building may not be erected. Rochester v. Walters, 27 Ind. App. 194, 60 N. E. 1101; St. Johns v. McFarlan, 33 Mich. 72, 20 Am. Rep. 671; Manchester v. Smyth, 64 N. H. 380, 10 Atl. 700, 18 Am. & Eng. Corp. Cas. 474; Brockport v. Johnston, 13 Abb. N. Cas. (N. Y.) 468; New Rochelle v. Lang, 75 Hun 608, 27 N. Y. S. 600; Reynolds v. Harris, 11 Ohio Dec. (Reprint) 509, 27 Cinn. L. Bul. 229; Williamsport v. McFadden, 15 W. N. C. (Pa.) 269; Honesdale v. Weaver, 2 Pa. Dist. 344; Ellwood City v. Mani, 16 Pa. Co. Ct. 474; Waupun v. Moore, 34 Wis. 450, 17 Am. Rep. 446. And see Mt. Vernon First Nat. Bank v. Sarlls, 129 Ind. 201, 28 N. E. 434, 28 Am. St. Rep. 185, 13 L.R.A. 481, 37 Am. & Eng. Corp. Cas. 445; Monticello v. Bates, 163 Ky. 38, 173 S. W. 159.

In Rochester v. Walters, supra, the court said: "The only ground upon which an injunction was asked was because the erection of the building would be a violation of the ordinance. It is perhaps true that a municipality might restrain the erection or maintenance of anything within the corporate limits that was in and of itself a nuisance, or if the erection of the building would work special and irreparable injury to the municipality or to its property. But in the case at bar the erection of the prohibited building within the fire limits was not a nuisance per se, and the injunction was asked simply because the contemplated act was a violation of the ordinance. A city ordinance has to the people within its reach all the force and effect of a legislative enactment. The ordinance in question provides a penalty for its violation, and neither the municipality nor a private citizen can ask a court of equity simply to enforce the ordinance by injunction. The reasoning that would permit such a proceeding would authorize a court of equity to restrain by injunction the violation of a criminal statute." In Waupun v. Moore, 34 Wis. 450, 17 Am. Rep. 446, it was said: "The jurisdiction of courts of equity, in proper cases, to restrain the erection or maintenance of nuisances, public or private, is undoubted. But the defendant was not about to erect a nuisance. If it is unlawful for him to erect the building in question, it is made so by the ordinance alone. Without the ordinance, no one can successfully dispute his right to