Fellows v. City of Charleston
| Decision Date | 19 November 1907 |
| Citation | 59 S.E. 623,62 W.Va. 665 |
| Parties | FELLOWS et al. v. CITY OF CHARLESTON. |
| Court | West Virginia Supreme Court |
Submitted September 6, 1907.
Syllabus by the Court.
An ordinance of the city of Charleston, requiring a permit from the city to build a house, is a valid exercise of police power under its charter, and is not repugnant to the federal Constitution.
[Ed Note.-For cases in point, see Cent. Dig. vol. 36, Municipal Corporations,§ 1333; vol. 10, Constitutional Law, § 809.]
Where property rights will be destroyed or their lawful enjoyment taken away by criminal proceedings under an invalid law or ordinance, equity has jurisdiction to enjoin them.
[Ed Note.-For cases in point, see Cent. Dig. vol. 27, Injunction § 155.]
Appeal from Circuit Court, Kanawha County.
Bill by Sallie Fellows and her husband against the city of Charleston. Decree for plaintiffs, and the city appeals. Reversed, and injunction dissolved, and bill dismissed.
L. E. McWhorter and Murray Briggs, for appellant.
Ferguson & Ellison, for appellees.
Sallie Fellows and A. A. Fellows, her husband, claiming to own a lot of land on the bank of the Kanawha river between its low-water mark and Front or Kanawha street in the city of Charleston, were proceeding to erect a dwelling house on the lot, and, after they had partly constructed it, the city of Charleston caused a warrant to be issued for the arrest of A. A. Fellows on the charge, as the bill says, that the building of "said house was in violation of law and an ordinance of said city," and caused said Fellows to be arrested and stopped him, and forced him and his employés to abandon and quit work and leave the house unfinished, and frightened the employés from work, and forbade them thereafter to resume work, threatening them with arrest and criminal prosecution and fine and imprisonment should they do so. The bill says that the police judge of the city upon said warrant imposed on Fellows a fine of $10, and that Fellows took an appeal to the criminal court. Fellows and his wife filed a bill in the circuit court of Kanawha county against the city of Charleston, its Mayor and other officers, praying an injunction against them to restrain them from further molesting, arresting, criminally prosecuting, and imposing fines upon the plaintiffs, their employés and servants, for being engaged in the erection of said house and until the final adjudication of the said criminal case on appeal, pending in the criminal court of Kanawha county, and until the completion of their said house on their said lot. The court awarded an injunction commanding the city and its officers to cease and abstain from further molesting, arresting, hindering, or in any way interfering with Sallie Fellows and A. A. Fellows, their employés or servants, in the erection of said building. The court overruled a motion to dissolve the injunction, and the city of Charleston took an appeal.
So confused and irregular are the bills and many orders in the case that it is quite difficult to get at the true merits for decision presented by the record. There was a bill filed at rules under the summons, which we should think would be the bill of the record; but before the court another bill was filed, and afterwards amended at the bar. It is claimed that the bill is insufficient. Open to criticism it is, but we shall treat it for all that it is worth and decide the case upon the bill filed in court, though it was not filed as an amended bill. The bill does not say what the offense was on which the warrant of arrest was predicated; but the answer and an exhibit later filed introduce an ordinance of the city, and we gather that the city issued its warrant for a violation of an ordinance requiring that before a building should be erected in the city there should be a permit granted for its erection, and prohibiting its erection without such permit, and imposing a fine for the violation of the ordinance.
The first question arises upon the contention by the city that equity has no jurisdiction of the case, because equity will not enjoin a criminal prosecution. For this position we are referred to Flaherty v. Fleming, 58 W.Va. 669, 52 S.E. 857, 3 L.R.A. (N. S.) 461. It holds the general principle that "it is a rule, subject to few exceptions, that a court of equity will not interfere by an injunction with criminal proceedings." But that case distinctly admits that, if criminal prosecution destroys civil property and its enjoyment, in protection of the property right equity may properly enjoin the criminal prosecution. Now, surely, the prosecution of criminal process illegally preventing the construction of a residence on real estate deprives the owner of a very important use of his land, practically taking it from him. 6 Pomeroy, Eq. (3d Ed.) § 644; 22 Cyc. 902; Dobbins v. Los Angeles, 195 U.S. 224, 25 S.Ct. 18, 49 L.Ed. 169. Therefore there is jurisdiction in equity for injunction. And, aside from that question, there stands the fact alleged that the city and its constituted officers were hindering and obstructing the erection of the house, and that itself, I think, would sustain the jurisdiction.
The plaintiffs' counsel assail the ordinance of the city of Charleston as void. If that be so, there would be no color of jurisdiction for the action of the city authorities. Hence we must inquire whether that ordinance is valid or void. The enactment of an ordinance directing and regulating the construction of buildings in cities, and requiring a permit from the city therefor, is an exercise of that great power called "police power." That power is vital and indispensable. Without it cities and towns could not exist. That power is vested in the state; but, it being utterly impracticable that the state Legislature and executive could regulate by their constant presence all the doings in cities and towns, it became indispensable that the state should delegate the exercise of such power to those petit states, the cities and towns. 2 Smith on Munic. Corp. §§ 1320, 1321. See 22 Am. & Eng. Ency. L. 919. But a municipal corporation cannot exercise this police power unless authority to do so is given by the Legislature to it. Morley v. Godfrey, 54 W.Va. 54, 46 S.E. 185; Judy v. Lashley, 50 W.Va. 628, 41 S.E. 197, 57 L.R.A. 869. It can exercise those powers and no others granted expressly in its charter, and those necessarily implied or incident to the powers that are expressly granted, and those essential to the declared purpose of the corporation and indispensable to it. City of Charleston v. Reed, 27 W.Va. 681, 55 Am.Rep. 336.
Turning now to Acts 1895, p. 126, c. 58, re-enacting the charter of Charleston, we find, in section 21 (page 131) that the council is given full power "to control the construction and repair of all houses *** to provide for the regular building of houses or other structures, and determine the distance that they shall be built from any street or alley; *** to abate or cause to be abated anything which in the opinion of the council shall be a nuisance." Section 22 (page 132) gives the council power, in order to carry out the powers enumerated in section 21, and "all others conferred upon the said city or its council expressly or by implication in this or any other acts of the Legislature," to "adopt and enforce all needful orders, by-laws and ordinances not contrary to the laws or the Constitution of the state, and to prescribe, impose and enforce reasonable fines and penalties, including imprisonment, under judgment and order of the mayor or recorder of said city." Under that statute it is very clear that the city had...
To continue reading
Request your trial