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220, 6 Sup. Ct. Rep. 1064; State v. Tenant, 110 N. C. 609, 15 L.R.A. 423, 28 Am. St. Rep. 715, 14 S. E. 387; State v. Dubarry, 44 La. Ann. 1117, 11 So. 718; Des Moines v. Gilchrist, 67 Iowa, 210, 56 Am. Rep. 341, 25 N. W. 136; Northern P. R. Co. v. Spokane, 52 Fed. 428.

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 'if a city ordinance is invalid, one who is affected by it has the right, in order to prevent irreparable injury and a multiplicity of prosecutions, to go into a court of equity for relief."" In Barthet v. New Orleans, supra, in sustaining this remedy, the court said: "It is not enough that there is a remedy at law; it must be plain and adequate; or, in other words, as practical and efficient to the ends of justice and its prompt administration as the remedy in equity." The excellence of the equitable remedy in a case like this is that it admits of the doing of complete justice by preserving the status without the destruction or loss of property which must precede and sustain the action for damages. Its selection in such cases is commendable.

For the reasons stated, the judgment of the circuit court for Wayne county is

affirmed.

Blair, C., concurs.

Per Curiam:

The foregoing opinion by Brown, C., is adopted as the opinion of this division. All the judges concur except Bond, J., who dissents. The cause is transferred to the court in banc because it conflicts with the decision in banc of St. Louis v. Fischer, 167 Mo. 654, 64 L.R.A. 679, 99 Am. St. Rep. 614, 67 S. W. 872, at the October term, 1901.

Messrs. N. C. Whaley, Abington & Phillips, and David W. Hill for appellants.

Messrs. N. A. Mozley, Leslie C. Green, and Ernest A. Green, for respondent:

The general ordinances of the city of Poplar Bluff pertaining to fire limits are all void, invalid, in excess of the charter powers of said city of Poplar Bluff, and unconstitutional; therefore, plaintiff was not required to comply with them in erecting the building in controversy, and did not have to secure the consent of the municipality to build the "air dome," as provided by the ordinances of said city.

Even were the general fire-limit ordinances valid and constitutional (as we deny), nevertheless plaintiff has complied with all the provisions thereof, in erecting the air dome, and is therefore entitled to maintain the same.

St. Louis v. Dorr, 136 Mo. 370, 37 S. W. 1108; Kolkmeyer v. Jefferson, 75 Mo. App. 683; State ex rel. Carthage v. Cowgill & H. Mill. Co. 156 Mo. 634, 57 S. W. 1008; State ex rel. Canton v. Allen, 178 Mo. 573, 77 S. W. 868; Page v. St. Louis, 20 Mo. 142; Dausch v. Crane, 109 Mo. 329, 19 S. W. 61; Keating v. Skiles, 72 Mo. 97; Ball v. Fagg, 67 Mo. 484; State ex rel. Gourley v. Kansas City, 58 Mo. App. 124; 28 Cyc. 322, 335, 343, 344; Eichenlaub v. St. Joseph, 113 Mo. 395, 18 L.R.A. 590, 21 S. W. 8; St. Louis v. Foster, 52 Mo. 513; Rockville v. Merchant, 60 Mo. App. 365; Aurora Water Co. v. Aurora, 129 Mo. 540, 31 S. W. 946; Cape Girardeau v. Riley, 52 Mo. 424, 14 Am. Rep. 427; Tarkio v. Cook, 120 Mo. 1, 41 Am. St. Rep. 678, 25 S. W. 202; Saleno v. Neosho, 127 Mo. 635, 27 L.R.A. 769, 48 Am. St. Rep. 653, 30 S. W. 190; Northern P. R. Co. v. Spokane, 52 Fed. 428.

The injunction was correctly made perpetual, because special ordinance No. 240, condemning the air dome building, under which defendants are acting, is void, invalid, in excess of the charter powers granted to the city of Poplar Bluff, and unconstitutional.

Brown v. Carrollton, 122 Mo. App. 276, 99 S. W. 37; St. Louis v. Edward Heitzeberg Packing & Provision Co. 141 Mo. 375, 39 L.R.A. 551, 64 Am. St. Rep. 516, 42 S. W. 954; Rice v. Jefferson, 50 Mo. App. 468; Hisey v. Mexico, 61 Mo. App. 253; Allison v. Richmond, 51 Mo. App. 133; Springfield R. Co. v. Springfield, 85 Mo. 676; State ex 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; State v. St. Louis, I. M. & S. R. Co. 232 Mo. 642, 162 S. W. 144; Boyd v. Frankfort, 117 Ky. 199, 111 Am. St. Rep. 240, 77 S. W. 669; State ex rel. Omaha Gas Co. v. Withnell, 78 Neb. 33, 8 L.R.A. (N.S.) 978, 126 Am. St. Rep. 586, 110 N. W. 680; Yick

owsky v. Hannibal, 35 Mo. App. 78; Hannibal v. Missouri & K. Teleph. Co. 31 Mo. App. 23; Willow Springs v. Withaupt, 61 Mo. App. 275.

Injunction is the proper remedy in this case; multiplicity of prosecutions and one of the defendants being a municipal corpo

[blocks in formation]

On storage of oil, gasolene, or gas as nuisance because of explosive or combustible quality, see 52 L.R.A. (N.S.) 930.

The regulation which was upheld in RE MCINTOSH would seem to be clearly within the police power, even as applied to build ings used as garages before its adoption.

In People ex rel. Busching v. Ericsson, post, 607, a statute empowering the city council to direct the location and regulate the use inter alia of garages within the limits of the city or village was upheld as a legitimate exercise of the police power, that power not being dependent upon the question whether a garage is a nuisance per se; and it was further held that an ordinance declaring it unlawful to construct or maintain any garage within 200 feet of any building used as a hospital, church, or school, or the grounds thereof, or to construct or maintain any garage in any block in which two thirds of the buildings on both sides of the street are used exclusively for residence purposes, or within 100 feet of any such street in any such block, without securing the consent of a majority of the property owners, according to frontage on both sides of the street, was a reasonable exercise of the power conferred by the statute.

ing plants, by forbidding the issuance of any garage permit allowing the storage of volatile inflammable oil, for a building within a prescribed distance of any school, place of public amusement, or assembly, tenement house, or hotel.

A

(May 5, 1914.),

PPEAL by applicant from an order of 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 of mandamus to compel defendants to issue a garage permit. Affirmed.

The facts are stated in the opinion. Mr. Theodore B. Chancellor, with Messrs. Olcott, Gruber, Bonynge, & McManus, for appellant:

The regulation forbidding the granting of a permit for petitioners' garage because it is within 50 feet of a building occupied as a school is an arbitrary and unreasonable enactment; and it is invalid because it deprives him of his liberty and property

And, in Storer v. Downey, 215 Mass. 273, 102 N. E. 321, it was held that an ordinance providing that "no building shall be erected for or converted to use of a garage unless such use is previously authorized by the board of aldermen" was a valid exercise of the police power on the ground that oil and gasolene which were stored and used in garages were so highly inflammable and explosive that they might increase the danger of fire, no matter how carefully the buildings might be constructed or how noncombustible their materials might be.

In O'Hara v. Nelson, 71 N. J. Eq. 161, 63 Atl. 836, a preliminary injunction was granted, restraining the owner of a public frame garage from filling automobiles with gasolene inside the building, and from storing automobiles filled with gasolene inside the building, where he has a permit for the storage of 1 barrel of gasolene only, and the garage is in close proximity to other frame buildings, including occupied residences. And the injunction was continued upon final hearing (71 N. J. Eq. 629, 63 Atl. 842.)

In People ex rel. Corn Hill Realty Co. v. Stroebel, 209 N. Y. 434, 103 N. E. 735, reversing 156 App. Div. 457, 141 N. Y. Supp. 1014, it was held that an ordinance providing that "no person, firm, or corporation shall hereafter maintain or conduct a public garage for the storing, maintenance, keeping, caring for, or repairing of automobiles or motor vehicles within the city limits without permission of the superintendent of buildings," although forbidding the maintenance of a public garage, did not prohibit the erection of a building which, though adapted to such a use, could be used for other purposes not forbidden, such 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.

Frank L. Fisher Co. v. Woods, 187 N. Y. 90, 12 L.R.A. (N.S.) 707, 79 N. E. 836; Lochner v. New York, 198 U. S. 45, 49 L. ed. 937, 25 Sup. Ct. Rep. 539, 3 Ann. Cas. 1133; People ex rel. Tyroler v. Warden, 157 N. Y. 116, 43 L.R.A. 264, 68 Am. St. Rep. 763, 51 N. E. 1006; People ex rel. Croft v. Manhattan State Hospital, 5 App. Div. 249, 39 N. Y. Supp. 158.

Mr. Terence Farley, with Mr. Frank L. Polk, for respondent:

Under its general powers in relation to public safety, good, and welfare, health, etc., or under an express or implied grant of power for that purpose, a municipality may unquestionably regulate the keeping, using, and selling of explosives, etc., within the corporate limits.

State v. Wittles, 118 Minn. 364, 41 L.R.A. (N.S.) 456, 136 N. W. 863, Ann. Cas. 1913E, 433; Union Oil Co. v. Portland, 198 Fed. 441; Jamieson v. Indiana Natural Gas |

motorcycles, especially in the absence of evidence that it was in fact to be used as a public garage. The court remarked that any attempt to limit the right to erect and occupy buildings for the sale of vehicles, automobiles, and motorcycles would be unconstitutional, on the ground that the business of selling such vehicles was as lawful as the sale of groceries or dry goods.

Inters. Com. Rep. 613, 28 N. E. 76; Dobbins v. Los Angeles, 139 Cal. 179, 96 Am. St. Rep. 95, 72 Pac. 970; Crowley v. Ellsworth, 114 La. 308, 69 L.R.A. 276, 108 Am. St. Rep. 353, 38 So. 199; Waters Pierce Oil Co. v. New Iberia, 47 La. Ann. 863, 17 So. 343; Standard Oil Co. v. Danville, 199 Ill. 50, 64 N. E. 1110; Spiegler v. Chicago, 216 Ill. 114, 74 N. E. 718; Rex v. McGregor, 4 Ont. L. Rep. 198, 1 Ont. Week. Rep. 358. It may also prohibit the location of garages in certain localities.

Laurelle v. Bush, 17 Cal. App. 409, 119 Pac. 953.

Under its police power, the state or the representative to which it has delegated its authority may regulate or even prohibit the transaction of business in such a manner or place that noise, smoke, dust, odors, and other similar discomforts or dangers result, so as to amount to an injury to the community.

Fischer v. St. Louis, 194 U. S. 361, 48 upon the party attacking the ordinance as an unreasonable or oppressive exercise of the police power, to show affirmatively and clearly its unreasonableness.

The further objection that the ordinance was void because it discriminated in favor of those persons engaged in a like business at the time the ordinance became effectual was disposed of on the ground that the ordinance, by its terms, applied as much to the maintenance of a public garage previously established as to the one subsequently sought to be established.

As bearing on the question of reasonableness of the ordinance as applied to the particular case, the report shows that the site of the proposed location of the garage was on the north side and facing Madison street; that there were no residences or other buildings of any kind in that block

Subsequently to the decision of the Illinois supreme court in People ex rel. Busching v. Ericsson, post, 607, the same court in People ex rel. Keller v. Oak Park, 266 Ill. 365, 107 N. E. 636, upheld the validity of an ordinance rendering it unlawful to construct or maintain a building for a public automobile garage on any street where two thirds of the buildings within a radius of 500 feet are used exclusively for residence purposes, without the written consent of the majority of the property owners ac-facing Madison street on that side; that cording to frontage within such radius, as against objections that the ordinance was void for unreasonableness because it requires the written consent of the owners, even though the garage may be built on a purely business street; because it requires the written consent of an unreasonably large number of property owners; because, by reason of the size of the territory specified, the distinction between a residence street and a business street is wiped out; because property is included that cannot be 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. A. H. N. in this connection that it was incumbent

in the block facing that street on the south side and opposite the proposed site were five business buildings and no residences; that north of the proposed site and in the same block and within much less than 500 feet were nine residences, and immediately south of the business buildings on the other side of Madison street and within the 500feet limit were nine residences, and that other residences east and west of the block referred to were located within the 500-feet limit.

ises mentioned 200 gallons of gasolene, 100 gallons of lubricating oil, 50 gallons of kerosene, and 35 automobiles.

L. ed. 1018, 24 Sup. Ct. Rep. 673; New York ex rel. Lieberman v. Van De Carr, 199 U. S. 552, 50 L. ed. 305, 26 Sup. Ct. 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; State v. O'Neil, 49 La. Ann. 1171, 22 So. 352; Winthrop v. New England Chocolate Co. 180 Mass. 464, 62 N. E. 969; Com. v. Hayden, 211 Mass. 296, 97 N. E. 783; Micks v. Mason, 145 Mich. 212, 11 L.R.A. (N.S.) 653, 108 N. W. 707, 9 Ann. Cas. 291; State v. Wittles, 118 Minn. 364, 41 L.R.A. (N.S.) 456, 136 N. W. 883, Ann. Cas. 1913E, 433; Neumann v. Hoboken, 82 N. J. L. 275, 82 Atl. 511; Seattle v. Hinckley, 40 Wash. 468, 2 L.R.A. (N.S.) 398, 82 Pac. 747.

of this proceeding.

The application for the permit was denied solely on the ground, as it is alleged in the petition, that the relator's premises are situated within 50 feet of the nearest wall of a school building. The relator seeks in this proceeding to compel the defendants to issue the permit applied for. So far he has been unsuccessful.

He challenges the regulation quoted as being in violation of his constitutional rights, because it deprives him of his property without due process of law, and denies

Cuddeback, J., delivered the opinion of to him the equal protection of the law. It the court:

Chapter 899, Laws of 1911, authorized the municipal explosives commission of New York city to make regulations for "the better prevention of fires." The act also provided that such regulations when approved by the fire commissioner should constitute a chapter of the Code of Ordinances of the city. Violation of the ordinances is made a misdemeanor.

seems to me that the regulation is not objectionable on the score stated by the relator. The object sought is the preservation of public safety and the welfare of the community. The enactment is not an arbitrary interference with the rights of the individual, but is a fair, reasonable, and appropriate exercise of the police power. Frank L. Fisher Co. v. Woods, 187 N. Y. 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. There certainly can be no criticism of the regulation so far as it relates to new estab

"Section 366. It shall be unlawful for any person to store, house, or keep within the city of New York any motor vehicle con-lishments of the kind forbidden. Chicago taining volatile inflammable oil, except in a building, shed, or inclosure, for which a garage permit shall have been issued by the fire commissioner."

"Section 370. No garage permit allowing the storage of volatile inflammable oil shall be issued for any building, shed, or inclosure: (a) Which is situated within fifty (50) feet of the nearest wall of a building occupied as a school, theater, or other place of public amusement or assembly; (b) which is occupied as a tenement house or hotel," etc.

v. Ripley, 249 Ill. 466, 34 L.R.A.(N.S.) 1186, 94 N. E. 931, Ann. Cas. 1912A, 160; Laurelle v. Bush, 17 Cal. App. 409, 119 Pac. 953.

The relator's main objection to the ordinance is that it is made applicable to a building that had been used as a garage and for the storage of gasolene, lubricating and other oils prior to the time the enactment took effect. The building on the relator's premises was constructed in 1903. The school was built two years before. From 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 twenty

one 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 building is not available for any kind of business other than a garage. Hence his grievance.

In Tenement House Dept. v. Moeschen, 179 N. Y. 325, 330, 70 L.R.A. 704, 103 Am. St. Rep. 910, 72 N. E. 231, 232, 1 Ann. Cas. 439, Id. 203 U. S. 583, 51 L. ed. 328, 27 Sup. Ct. Rep. 781, it was held that a statute requiring sinks and privy vaults in existing tenement houses to be removed, and to be replaced by individual water-closets, was a proper and constitutional exercise of the police power, though the expense of making the necessary changes was very considerable. The court said: "It is a well-recognized principle in the decisions of the state and

Federal courts that the citizen holds his property subject not only to the exercise of the right of eminent domain by the state, but also subject to the lawful exercise of

In Standard Oil Co. v. Danville, 199 III. 50, 64 N. E. 1110, an ordinance made it unlawful to keep or store petroleum or explosive oils within 1,000 feet of any dwelling. The court in upholding the ordinance said: "The fact that the greater number of residences, business houses, etc., now within 1,000 feet of the plant of the appellant company were built after the plant had been located at its present site does not entitle the appellant company to insist that it has become vested with the right to continue to operate its plant and keep on storage the inflammable, explosive, and offensive oils, liquids, and substances specified in the ordinance. The health, safety, and comfort of the people are the controlling considerations, and prescriptive rights to endanger either cannot be acquired."

The relator in his brief says that in the

the police power by the legislature; in the city of New York there are 75 garages, some

one case property is taken by condemnation and due compensation; in the other the necessary and reasonable expenses and loss of property in making reasonable changes in existing structures, or in erecting additions thereto, are damnum absque injuria." In Laurel Hill Cemetery v. San Francisco, 216 U. S. 358, 54 L. ed. 515, 30 Sup. Ct. Rep. 301, an ordinance prohibiting the burial of the dead within the limits of the city was sustained. In that case it appeared that the plaintiff was the owner of a cemetery. The land had been dedicated as a burying ground before it was included in the limits of the city. A great number of burial lots had been sold and a large amount of money had been spent by the owners in embellishing the grounds. There remained unsold lots to the estimated value of $75,000. The court said: "The only question that needs to be answered, if not the only one before us, is whether the plaintiff's property is taken contrary to the 14th Amendment."

The answer was that it was not.

In Union Oil Co. v. Portland (D. C.) 198 Fed. 441, the city council had passed an ordinance defining the limits wherein crude petroleum might be stored within the city. The plaintiff purchased land and began the erection of a storage plant for petroleum outside these limits, whereupon the council amended the ordinance so as to bring the plaintiff's property within the restricted territory. The court sustained the ordinance as amended, saying that "the right to exercise the police power is a continuing

of them valuable structures, which will come within the provisions of the ordinance under consideration if it is declared valid. To my mind that does not furnish an argument against the enactment sufficient to condemn it. The storing of volatile inflammable oil in garages located near buildings wherein people congregate is plainly a dangerous practice. The legislature has authorized the adoption of this ordinance which will stop that practice. In particular instances some loss will follow the enforce

ment of the ordinance, but it cannot be avoided on that ground. It must be tested with a view to its general purpose and its efficiency to effect that end.

As was said in the Tenement House Case, supra: "It is well settled in this court and in the Supreme Court of the United States that the constitutionality of a statute may be determined by considering its language and the material facts of which the court can take judicial notice. It is not the hardship of the individual case that determines the question, but rather the general scope and effect of the legislation as an exercise of the police power in protecting health and promoting the welfare of the community at large." (p. 330.)

Read in the light of the decisions cited, the regulation of the municipal explosives commission is valid and should be sustained. The order appealed from should be affirmed, with costs.

Werner, Hiscock, Chase, Collin, and Hogan, JJ., concur. Willard Bartlett, Ch. J., absent.

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