Incorporated Town of Rochester v. Walters

• Decision Date: 25 June 1901
• Docket Number: 3,829
• Citation: 60 N.E. 1101,27 Ind.App. 194
• Parties: INCORPORATED TOWN OF ROCHESTER v. WALTERS ET AL
• Court: Indiana Appellate Court

60 N.E. 1101

27 Ind.App. 194

INCORPORATED TOWN OF ROCHESTER v. WALTERS ET AL

No. 3,829

Court of Appeals of Indiana

June 25, 1901

From Fulton Circuit Court; A. C. Capron, Judge.

Suit by town of Rochester to enjoin John Walters and others from constructing wooden building within fire limits in violation of ordinance. From a decree in favor of defendants, plaintiff appeals.

Affirmed.

J. H Bibler, for appellant.

I Conner and J. Rowley, for appellees.

OPINION

ROBINSON, J.

An ordinance of appellant made it unlawful to erect a wooden building of any description whatever within certain designated limits prescribed in the ordinance, and provided a penalty for the violation of the ordinance. Appellant sued to enjoin appellee from erecting a wooden building within the designated limits. A demurrer to the complaint was sustained and the only question presented is the right of appellant to maintain such an action.

The only ground upon which an injunction was asked was because the erection of the building would be a violation of the ordinance. It is perhaps true that a municipality might restrain the erection or maintenance of anything within the corporate limits that was in and of itself a nuisance, or if the erection of the building would work special and irreparable injury to the municipality or to its property. But in the case at bar the erection of the prohibited building within the fire limits was not a nuisance per se, and the injunction was asked simply because the contemplated act was a violation of the ordinance. A city ordinance has to the people within its reach all the force and effect of a legislative enactment. The ordinance in question provides a penalty for its violation, and neither the municipality nor a private citizen can ask a court of equity simply to enforce the ordinance by injunction. The reasoning that would permit such a proceeding would authorize a court of equity to restrain by injunction the violation of a criminal statute.

In the cases of Village of St. Johns v. McFarlan, 33 Mich. 72, 20 Am. Rep. 671; Village of Waupun v Moore, 34 Wis. 450, 17 Am. Rep. 446, and Mayor of Manchester v. Smyth, 64 N.H. 380, 10 A. 700, 18 Am. & Eng. Corp. Cases 474, it was held that a court of equity has no jurisdiction to restrain the threatened violation of an ordinance unless the threatened act would, if carried out, be a nuisance. It is seen that in the above cases the injunction was...