Garfield Tp. v. Young

• Decision Date: 17 May 1957
• Docket Number: No. 70,70
• Citation: 82 N.W.2d 876,348 Mich. 337
• Parties: The TOWNSHIP OF GARFIELD, Plaintiff-Appellant, v. Sol H. YOUNG, d/b/a Sol H. Young Iron & Metal Company, Defendant-Appellee.
• Court: Michigan Supreme Court

Page 876

82 N.W.2d 876

348 Mich. 337

The TOWNSHIP OF GARFIELD, Plaintiff-Appellant, v. Sol H. YOUNG, d/b/a Sol H. Young Iron & Metal Company Defendant-Appellee.

No. 70.

Supreme Court of Michigan.

May 17, 1957.

Harry T. Running, Traverse City, for Garfield Tp., appellant.

Charles H. Menmuir, Traverse City, for appellee.

Before the Entire Bench, except BOYLES, J.

SMITH, Justice.

This is a junk yard case. The defendant is conducting the enterprise without the license required by a resolution of the township adopted in 1945. The township seeks to enjoin the operation, not only as a violation of the ordinance, but also as a public nuisance. The circuit court dismissed the bill on its merits and the controversy is before us on general appeal.

This is the second appeal involving this matter. In Township of Garfield v. Young, 340 Mich. 616, 66 N.W.2d 85, we held that the ordinance in question, providing for the licensing of junk yards operated within the township, ¹ was constitutional under the authority of People v. Gottlieb, 337 Mich. 276, 59 N.W.2d 289. We said that it was not an unconstitutional delegation of legislative power for the ordinance to require that the petition for a license be accompanied by written consents from a percentage of certain adjoining property owners. Those questions are now foreclosed. The case was then sent back for trial on the merits to determine whether there was sufficient factual basis for the issuance of an injunction, restraining the defendant from further operation of his business.

The court below found the resolution invalid and illegal because of defects in its enactment. It found, further, after taking testimony and viewing the premises, that this was no public nuisance, that there was 'no showing of any health problem or other facts in the proofs which would justify the court in issuing a writ of injunction.' We will first consider the matter of the alleged nuisance.

The business of the defendant--that of operating a junk yard--is not a public nuisance per se at the common law. Township of Warren v. Raymond, 291 Mich. 426, 289 N.W. 201, and cases there cited. No attempt is made to denominate this activity a nuisance per se under any statute, or the resolution before us. We note that a penalty, only, is imposed for failure to comply with its provisions. The plaintiff township, however, would have us enjoin the violation on the theory that the resolution regulates a business affecting public health, welfare and morals, and therefore its violation is a nusianceper se. In support thereof, certain of the cases collected in 166 A.L.R. 659-666, are cited to us. The law of this jurisdiction does not, however, support this theory. Our holding in Village of St. Johns v. McFarlan, 33 Mich. 72, expresses the Michigan, and we think, upon principle, the preferable view:

'A court in chancery has no jurisdiction to restrain the threatened violation of a village ordinance, unless the act threatened to be done, if carried out, would be a nuisance. If it were otherwise, the court might be called upon in all classes of cases to restrain the doing of acts prohibited by statute. Mayor, etc., v. Thorne, 7 Paige [N.Y.], 261; Attorney General v. Utica Ins. Co., 2 Johns, Ch. [N.Y.] 371.

'The erection of a wooden building within the limits of a city or village is not in and of itself a nuisance. Neither does the fact that the erection of such is prohibited by ordinance make it a nuisance. If this were so, then the doing of any act prohibited by law would, upon the same reasoning, be a nuisance. The act, if prohibited, would, be illegal; but something more than mere illegality is required to give this court jurisdiction. It was, however, insisted that the erection of a wooden building in a thickly settled portion of a village increases the danger in case of fire, and thereby injures adjoining property. There are, however, many kinds of trades and occupations, some of them prohibited by law, which, when carried on, equally tend to injure adjoining property, yet no one would contend that a court of chancery should interfere by injunction.'

See also Conway v. Gampel, 235 Mich. 511, 209 N.W. 562.

The cases of Portage Township v. Full Salvation Union, 318 Mich. 693, 29 N.W.2d 297, 302, and People v. Kelly, 295 Mich. 632, 295 N.W. 341, are distinguishable, the Court pointing out in the former case that 'under the specific terms of the statute the use made by defendants of the premises in question, and the buildings erected, in violation of the terms of the ordinance, constitute a nuisance per se. Such result was recognized by this Court in People v. Kelly, 295 Mich. 632, 295 N.W. 341.'

Apart from statute, then, is the case before us a proper case for the issuance of injunction at the prayer of the public authorities upon the theory that a public nuisance must be restrained? If, of course, we have in truth a public nuisance, the fact that it is also a criminal act will not stay the chancellor's hand. Story, Commentaries on Equity Jurisprudence, §§ 921, 924 (Randall, 3d ed. 1920); 6 McQuillin, Municipal Corporations, § 24.58; Prosser, Torts, § 71. We are not here called upon to grasp the thorny nettle. We need not decide the extent to which the chancellor may displace the jury in a criminal proceeding. Mack, The Revival of Criminal Equity, 16 Harv.L.Rev. 389.

Without valid and controlling statute, then, we are remitted to the question of whether or not there is, in fact, a public nuisance.

'No better definition of a public nuisance has been suggested than that of an act or omission 'which obstructs or causes inconvenience or damage to the public in the exercise of rights common to all Her Majesty's subjects.' The term comprehends a miscellaneous and diversified group of minor criminal offenses, based on some interference with the interests of the community or the comfort or convenience of the general public. * * *

'To be considered public, the nuisance must affect an interest common to the general public, rather than peculiar to one individual, or several. * * * It is not necessary, however, that the entire community be affected, so long as the nuisance will interfere with those who come in contact with it in the exercise of a public right.' Prosser, supra, § 71.

As such, the activity must be...