Page images
PDF
EPUB

enforce it, a remedy by appeal to this court being open, in such cases, to the party as against whom the attempt is made,” and citing New Orleans v. Becker, 31 La. Ann. 644; Hottinger v. New Orleans, 42 La. Ann. 629, 8 South. 575; Darcantel v. People's Slaughter-house Company, 44 La. Ann. 632, 11 South. 239; State v. Judge, 48 La. Ann. 1448, 21 South. 28; Lecourt v. Gaster, 49 La. Ann. 487, 21 South. 646; State v. Crozier, 50 La. Ann. 245, 23 South. 288. In the case of Boin v. Town of Jennings, 107 La. 410, 31 South. 866, plaintiff alleged irreparable damage to his business of conducting a barroom. In Devron v. First Municipality, 4 La. Ann. 11, it was held that an injunction would not lie to restrain a municipal corporation from instituting suit before a justice of the peace against a party for infractions of an ordinance prohibiting the sale of groceries in the vegetable market. In Levy v. City of Shreveport, 27 La. Ann. 620, it was held that the plaintiff could not test the authority of the mayor to enforce the ordinance of the city prohibiting private markets, and the legality of said ordinances, by an injunction.

In Hottinger v. New Orleans, 42 La. Ann. 629, 8 South. 575, the same doctrine was announced as to an ordinance changing the location of 234 dairies, the plaintiff alleging damage to her business and property rights. The court held that the ordinance was a police regulation, in the interest of public health, with a penalty for its violation, and if it was unconstitutional, as alleged, the plaintiff could suffer no injury, as she could urge her defense in the recorder's court, and, failing there, had her remedy by appeal to the supreme court.

In all of the cases cited the ordinances sought to be enjoined were relative to matters clearly within the domain of the police power, such as the traffic in intoxicating liquors, markets, dairies, slaughter-houses, and the like.

There is a line of decisions, however, to the effect that, where penal ordinances injuriously affect existing property rights, their legality or constitutionality may be inquired into by a court of equity, and their execution in a proper case enjoined.

In L'Hote v. City of New Orleans, 51 La. Ann. 93, 24 South. 608, 44 L. R. A. 90, this court said: "The plaintiff seeks the injunction for the protection of his rights of property, menaced, as he conceives, by an illegal ordinance. The right of the citizen to that protection is too clear for dispute."

The ordinance in that case was sustained as a proper exercise of the police power, yet the jurisdiction of the court to issue the injunction was affirmed. In that case the decision was bottomed on the principles announced in High on Injunctions, section 68, from which we make the following extracts, viz.: "So equity will not interfere by injunction to restrain municipal officers from the prosecution of suits for the violation of city ordinances, such proceedings being of a quasi criminal nature, since equity will not interfere with the execution of the criminal law, whether pertaining to the state at large, or to municipalities, which are agents in the administration of the civil government. . . . . If, however, the act concerning which an arrest or criminal prosecution is threatened affects civil property and its enjoyment, in protecting the property right, equity may properly enjoin the criminal prosecution. 235 But in such case its interference is founded solely upon the ground of injury to property and the necessity of preserving property rights; and, where such rights are not clearly involved, the relief will be denied.”

In the case of Dobbins v. Los Angeles, 195 U. S. 223, 25 Sup. Ct. Rep. 18, 49 L. ed. 169, the question was thoroughly considered, and the following principles announced:

1. Municipal ordinances, and even legislative enactments, are subject to investigation by the courts, with a view of determining whether the law or ordinance is a lawful exercise of the police power, or whether, under the guise of enforcing police regulations, there has been an unwarranted and arbitrary interference with constitutional rights to carry on a lawful business, make contracts, or use and enjoy property.

2. While the right to exercise the police power is a continuing one, and a business lawful to-day may in the future become a menace to the public welfare and be required to yield to the public good, the exercise of the police power is subject to judicial review, and property rights cannot be wrongfully destroyed by arbitrary enactment.

3. Although an ordinance may be lawful on its face and apparently fair in its terms, yet, if it is enforced in such a manner as to work a discrimination against a part of the community for no lawful reason, such exercise of power will be invalidated by the courts.

4. Where property rights will be destroyed, unlawful interference by criminal proceedings under a void law or or dinance may be reached and controlled by a court of equity.

In that case the plaintiff had purchased grounds for the erection of gasworks, within the prescribed limits for such plants, and had commenced the construction of the same, when the municipal authorities arbitrarily changed the limits so as to exclude such grounds and works. The court said that the allegations of the bill disclosed facts sufficient 236 to bring the case "within the class of cases wherein the court may restrain the arbitrary and discriminatory exercise of the police power, which amounts to a taking of property without due process of law, and an impairment of property rights protected by the fourteenth amendment to the federal constitution."

As the plaintiff in this case claims the protection of such amendment, the views of the supreme court of the United States above enunciated must be accepted as controlling. The case as presented by the plaintiff's petition herein need not be repeated. Suffice it to say that, taking all the allegations of the fact for true, a case is presented of a personal, discriminatory, and arbitrary ordinance, the execution of which will greatly impair the plaintiff's right of property. We have not been referred to any provision of the city charter which subjects the game of baseball as described in the petition to the police power of the municipal authorities. The playing of baseball does not injuriously affect the public health or morals, and is not a public nuisance any more than any other athletic sport. The power of the city council to enact any such ordinance may well be questioned.

It is therefore ordered that the rule issued herein be discharged, and that relator's application be dismissed, with costs.

INJUNCTION AGAINST ENFORCEMENT OF VOID MUNICIPAL ORDINANCES.

I. General Principles, 372.
II. Criminal Prosecutions, 374.
III. Multiplicity of Suits, 375.

IV. Irreparable Injury, 376.

V. Interference With Contract or Vested Rights, 377.

I. General Principles.

Although there is some conflict in the cases, the great weight of authority tends to establish, as the better rule, that where a municipal ordinance is void, and its provisions are about to be enforced, any person who is injuriously affected thereby, either in his person or property, may, and properly ought, to go into a court of equity,

and have the enforcement of the ordinance stayed by injunction. The following cases, among others, maintain that the enforcement of a void ordinance is better and more properly resisted by injunction than by any common-law remedy: Gould v. Mayor of Atlanta, 55 Ga. 678; Cicero Lumber Co. v. Town of Cicero, 176 Ill. 9, 68 Am. St. Rep. 155, 51 N. E. 758, 42 L. R. A. 696; Spiegler v. City of Chicago, 216 Ill. 114, 74 N. E. 718; Spiegel v. Gansberg, 44 Ind. 418; City of Rushville v. Rushville Natural Gas Co., 132 Ind. 575, 28 N. E. 853, 15 L. R. A. 321; Page v. Mayor of Baltimore, 34 Md. 558; Mayor of Baltimore v. Radecke, 49 Md. 217, 33 Am. Rep. 239; Mayor of Baltimore v. Scharf, 54 Md. 499; Deems v. Mayor of Baltimore, 80 Md. 164, 45 Am. St. Rep. 339, 30 Atl. 648, 26 L. R. A. 541; People v. Mayor of New York, 32 Barb. 35; Birdsall v. Clark, 73 N. Y. 73, 29 Am. Rep. 105; Appeal of Harper, 109 Pa. 9, 1 Atl. 791; Austin v. Austin City Cemetery Assn., 87 Tex. 330, 47 Am. St. Rep. 114, 28 S. W. 528; Los Angeles City Water Co. v. City of Los Angeles, 88 Fed. 720. The enforcement of a void municipal ordinance may be enjoined in equity, it is generally maintained, although its invalidity has not been determined in an action at law: Sylvester Coal Co. v. St. Louis, 130 Mo. 323, 51 Am. St. Rep. 566, 32 S. W. 649. As to the right to go into equity in the first instance to enjoin the enforcement of a void ordinance, the court, in Mayor of Baltimore v. Radecke, 49 Md. 217, 33 Am. Rep. 239, said: "As to the question of jurisdietion we have no doubt. It has been decided by this court in too many cases to be longer open to question, that where a municipal corporation is seeking to enforce an ordinance which is void, a court of equity has jurisdiction at the suit of any person injuriously affected thereby to stay its execution by injunction."

On the other hand, there are a number of cases maintaining that before the injunctive aid of a court of chancery can be successfully invoked to restrain the enforcement of a void ordinance, its invalidity must be established by an action at law: Forcheimer v. Port of Mobile, 84 Ala. 126, 4 South. 112; Dunham v. City of New Britain, 55 Conn. 378, 11 Atl. 354; Marvin Safe Co. v. Mayor of New York, 38 Hun, 146; Schulz v. City of Albany, 27 Misc. Rep. 51, 57 N. Y. Supp. 963.

It has also been held that the ordinary remedy for an injury from the operation of an unlawful municipal ordinance is by an action at law, and not by injunction, for complete redress in damages is generally thus attainable: Torpedo Co. v. Borough of Clarendon, 19 Fed. 231. In West v. Mayor of New York, 10 Paige, 539, a bill was filed to restrain the city of New York from prosecuting suits against the complainant for breach of an ordinance alleged to be illegal, and the court held that the question of the validity of such ordinance did not properly belong to a court of chancery for decision, as the complainant had a perfect defense at law if the ordinance were invalid, or did not render the complainant liable for the

penalty. In North Carolina it has been repeatedly maintained that the remedy for an injury resulting from the operation of an unlawful city ordinance is not by injunction, as the injured person has a complete redress in an action at law for damages: Cohen v. Commissions of Goldsboro, 77 N. C. 2; Rosenbaum v. City of Newbern, 118 N. C. 83, 24 S. E. 1, 32 L. R. A. 123. In that state it is held that an injunction will not be granted to prevent the enforcement of an alleged unlawful municipal ordinance, nor can an action be maintained which only seeks to have such ordinance adjudged void: Wardens of St. Peter's etc. Church v. Town of Washington, 109 N. C. 21, 13 S. E. 700; Paul v. Washington, 134 N. C. 363, 47 S. E. 793, 65 L. R. A. 902.

It has also been decided that where all the provisions of an ordinance are not void, its enforcement cannot be enjoined: Davis v. Fasig, 128 Ind. 271, 27 N. E. 726. Also that where the enforcement of the ordinance will result in a mere trespass for which an adequate remedy at law exists, equity will not enjoin its enforcement though the ordinance is void: Town of Orange City v. Thayer, 45 Fla. 502, 34 South. 573. And that the enforcement of a void city ordinance, not resulting in irreparable injury to vested property rights, cannot be restrained by injunction: Wade v. Nunnelly, 19 Tex. Civ. App. 256, 46 S. W. 668.

II. Criminal Prosecutions.

Some cases draw a distinction between injunctive relief from void ordinances which involve a criminal prosecution and those which may work an irreparable injury, or injuriously affect private property rights, and hold that in the former case the enforcement of the ordinance cannot be enjoined, while in the latter case it may be. Thus, it has been decided that a court of chancery will not restrain quasi criminal proceedings by the authorities of a municipal corporation for repeated violations of an alleged invalid ordinance: Burnett v. Craig, 30 Ala. 135, 68 Am. Dec. 115. And that courts of chancery have no jurisdiction to enjoin criminal or quasi criminal prosecutions under void ordinances: Skakel v. Roche, 27 Ill. App. 423. In this case it was said that "the general rule is well settled, and has been repeatedly announced in Illinois, that a court of equity will not entertain a bill to restrain prosecution under a municipal ordinance on the ground of the alleged illegality of such ordinance. The validity of an ordinance of the character of the one involved here can only be tested by an appeal from a fine imposed under it. Courts of chancery have no jurisdiction to enjoin criminal or quasi criminal prosecutions." And in a later case in the same state it was decided that a court of equity will not interfere by injunction to restrain prosecutions under municipal ordinances, even though they may be void, for the reason that the person prosecuted has an adequate remedy at law, and that if the ordinance is void, that of itself will defeat a prosecution under it: Chicago etc. R. R. Co. v. City of Ottawa, 148

« PreviousContinue »