Sulloway Topliff, for the plaintiff. The finding of the court, that,
on the whole, the danger from fire will neither be increased nor diminished, is
of no consequence. That is a matter with which the court has nothing to do. It is
not a question of fact to be determined by the court, but one of which the city
council have the
sole, absolute, and final determination (1 Dill. Mun. Corp., 3d ed., s. 328, Hine
v. New Haven, 40 Conn. 478 ), and this discretion cannot be judicially interfered
with. 1 Dillon, s. 94; State v. Clarke, 54 Mo. 17 ; Gas Co. v. Des Moines, 44
Iowa 509 ; St. Louis v. Boffinger, 19 Mo. 15 ; 1 Dillon (3d ed.), s. 475; Baker
v. Boston, 12 Pick. 184; Veazie v. Mayo, 45 Me. 560 ; Fay, Petitioner, 15 Pick.
243; Parks v. Boston, 8 Pick. 218; Danielly v. Cabaniss, 52 Ga. 211 ; Sheridan
v. Colvin, 78 Ill. 237 ; Western Saving Fund Society v. Philadelphia, 31 Penn.
St. 175, 185; Indianapolis v. Indianapolis Gas Co., 66 Ind. 396 ; 1 Dillon (3d
ed.), note 1, p. 401; The Mayor Council of Monroe v. Hoffman, 29 La. Ann. 651;
39 Am. Rep. 345; 2 Dillon, s. 832, and cases cited.
"Whenever matters have been intrusted by law to the judgment and discretion of municipal
officers or boards, equity will not revise or control the exercise of their discretion
in the absence of fraud." High Inj. (2d ed.), s. 1270; ib., s. 1240.
"It is well settled, and indeed admitted by the plaintiff, that this court, sitting
as a court of equity, has no superintendence of inferior tribunals." Lane v. Morrill, 51
N.H. 423 ; Kelsey v. King, 32 Barb. 410; People v. Mayor, 32 Barb 102; McKinley
v. Freeholders, 29 N. J. Eq. 164 ; Andrews v. Knox Co., 70 Ill. 65 ; Swett v.
City of Troy, 62 Barb. 630; Phelps v. Watertown, 61 Barb. 121; Fitzgerald v. Harms, 92
Ill. 372 ; High Ex. Leg. Rem., ss. 42, 325, 418, and cases cited.
While it is as a proposition true that the legislature is alone competent to make
laws, it is as well settled and universally conceded that it is competent for the
legislature to delegate to municipal corporations the power to make by-laws and
ordinances which have all the force in favor of municipalities, and against persons
bound thereby, of laws passed by the legislature of the state. 1 Dill. Mun. Corp
(3d ed.), s. 308; Heland v. Lowell, 3 Allen 407; Church v. City, 5 Cow. 538; St.
Louis v. Boffinger, 19 Mo. 13 , 15 ; St. Louis v. Bank, 49 Mo. 574 ; McDermott
v. Board of Police, 5 Abb. Pr. 422; Mason v. Shawneetown, 77 Ill. 533 ; Des Moines
Gas Co. v. Des Moines, 44 Iowa 508 ; 24 Am. Rep. 756; State v. Tryon, 39 Conn.
183 ; Indianapolis v. Indianapolis Gas Co., 66 Ind. 396 ; Starr v. Burlington,
45 Iowa 87 .
"The by-law has the same effect within its limits and with respect to the persons
upon whom it lawfully operates as an act of parliament has upon the subjects at
large." Lord Abinger, in Hopkins v. The Mayor, 4 M. W. 621, 640; Milne v. Davidson,
5 Mart. N. S. 586; The Queen v. Osler, 32 U. C. Q. B. 324.
The common-law doctrine is, that a corporation, aggregate for municipal purposes,
is nothing more nor less than "an intrusting the people of a place with the local
government thereof." Cuddon v. Eastwick, 1 Salk. 192; People v. Morris, 13 Wend.
325, 334; People v. Hurlbut, 24 Mich. 44 , 88 ; Brinckerhoff v. Board of Education,
37 How. Pr. 499.
The power to make by-laws is incidental to the very existence of corporations, and
without any grant it may make all appropriate by-laws. "For of common right every
corporation may make a by-law concerning any franchise granted to them, because
it concerns the welfare of the body politick and is included in the very act of
incorporation. And that is to the body politick as reason is to the body natural
to govern themselves, and if a franchise be granted to a corporation it is under
a trust that the corporation shall manage it well, which cannot be done but by a
by-law." City of London v. Vanacker, 1 Ld. Ray. 496; Norris v. Staps, Hobart 211.
And such by-laws when made are as binding as any public law of the state. Anacosta
Tribe v. Murbach, 13 Md. 91 ; Cummings v. Webster, 43 Me. 192 .
Ordinances and by-laws are not void because they prohibit, what otherwise might
lawfully be done. A legal restraint may be imposed on a few for the benefit of the
many. 1 Dill. Mun. Corp., s. 326.
"The establishment of limits within the denser portion of cities and villages, within
which buildings constructed of inflammable material shall not be erected or repaired,
may also, in some cases, be equivalent to a destruction of private property; but
regulations for this purpose have been sustained notwithstanding this result." Cool.
Con. Lim. 740; King v. Davenport, 98 Ill. 305 ; Respublica v. Duquet. 2 Yeates
493; Wadleigh v. Gilman, 12 Me. 403 , Brady v. North-Western Ins. Co., 11 Mich.
425 ; Monroe v. Hoffman, 29 La. An. 651.
A municipal corporation may by ordinance provide that buildings shall not be erected
of wood or other inflammable material. Wood Nuis., s. 741; Hudson v. Thorne, 7 Paige
261; Douglass v. Com., 2 Rawle 262; Brady v. Ins. Co., 11 Mich. 425 ; 1 Dill. Mun.
Corp., ss. 143, 405; Vanderbilt v. Adams, 7 Cow. 349, 352.
The city council, the only legally constituted tribunal to determine the question,
considered the rights of the defendant and the public, and decided that the use
to which the defendant proposes to put the property would endanger the public safety,
and by the ordinance in question declared it to be a nuisance.
In matters of this character, designed to protect the public, like a house held
out as one of ill-fame, it is none the less a nuisance that there has been no act
of prostitution. A man who erects a pig-sty under his neighbor's window could hardly
excuse himself by showing that he intended to keep it clean and inoffensive. A man
residing in a populous town might desire very much to have his child sick with small-pox
cared for in his own house, but it would not be an answer sufficient to prevent
removal that he would use his utmost endeavors, and take the greatest precaution,
to prevent the spread of the disease. The law would not wait for the disease to
spread. No more, in this case, should it wait for the
irreparable mischief of a conflagration to settle by practical demonstration whether
the city council or the court are right in their opinion as to whether the danger
from fire will or will not be increased by the proposed change.
The ground of jurisdiction of courts of equity in cases of nuisance is their ability
to give a more complete and perfect remedy than is attainable at law, in order to
prevent irreparable mischief, and also to suppress oppressive and vexatious litigation.
They can interpose, where courts of law cannot, to restrain and prevent nuisances
which are threatened, or are in progress, as well as to abate those already existing,
and by a perpetual injunction the remedy is made complete through all future time.
When the injury may be irreparable, as loss of health, trade, or permanent ruin
to property may or will ensue from the wrongful act of erection, in every such case
courts of equity will interfere by injunction. Sto. Eq. Jur., s. 926; Webber v.
Gage, 39 N.H. 186 ; West Point Iron Co. v. Reymert, 45 N.Y. 703 ; Nicodemus v.
Nicodemus, 41 Md. 529 ; Schurmeier v. St. Paul c., R. R. Co., 8 Minn. 113 ; Wilson
v. City of Mineral Point, 39 Wis. 160 ; 2 Sto. Eq. Jur., ss. 925, 926; Eden Inj.
286; Jer. Eq. Jur., s. 310; People v. St. Louis, 10 Ill. 372 ; Hoole v. Attorney-General,
22 Ala. 190 ; Attorney-General v. Gas Co., 19 Eng. L. Eq. 639; Aldrich v. Howard, 7
R. I. 87 ; Zabriskie v. Railroad Co., 2 Beas. 314; Jersey City v. Hudson, 2 Beas.
420; Attorney-General v. Brown, 9 C. E. Green 89; Wood Nuis., c. 25; Burnham v.
Kempton, 44 N.H. 94 , 95 .
Towns may maintain a bill in equity, and courts will aid them by injunction in enforcing
their by-laws. Winthrop v. Farrar, 11 Allen 398; Watertown v. Mayo, 109 Mass. 315
.
"No solid reason, in the author's judgment, exists why in proper cases a municipal
corporation may not resort to a court of equity to aid it in enforcing its public
duties to preserve the health and property of the inhabitants." 1 Dill. Mun. Corp.,
s. 405, note: Wood Nuis., s. 770, note 4, where the English cases are collected
and ss. 771, 772.
Cross Taggart, for the defendant.