Meyers v. City of Minneapolis
| Decision Date | 08 September 1922 |
| Docket Number | 23,144 |
| Citation | 189 N.W. 709,154 Minn. 238 |
| Parties | HENRY L. MEYERS v. CITY OF MINNEAPOLIS AND OTHERS |
| Court | Minnesota Supreme Court |
Rehearing Filed January 12, 1923
Action in the district court for Hennepin county to restrain defendants from enforcing a Minneapolis ordinance requiring a permit for operating stone quarries. Plaintiff's motion for a temporary injunction was denied, Molyneaux, J. From the order denying plaintiff's motion, he appealed. Affirmed.
Supreme Court has no power to grant an injunction pending an appeal.
The Supreme Court has no power to grant an injunction pending an appeal. Motion to stay defendants from enforcing a city ordinance denied. [Reporter.]
January 12, 1923.
Permit to operate stone quarry in Minneapolis may be required by city council.
1. Under the general welfare clause of the charter of Minneapolis its common council may require a permit for the operation of a stone quarry within its limits, following the principle of State v. Dirnberger, 152 Minn. 44, 187 N.W. 972.
Quarry owner not entitled to injunction when he has not applied for permit.
2. The owner of such a quarry must have a permit before operating and without applying for it he cannot have an injunction against the enforcement of an ordinance requiring a permit.
City ordinance apparently valid -- regulation must be within constitutional limits.
3. The ordinance is valid on its face. If the quarry owner is wrongly denied a permit he has a remedy. The power of regulation resting in the city is extensive but must be exercised within constitutional limits.
Fish, Carleton, Cherry & Carleton, for appellant.
Neil M. Cronin and R. S. Wiggin, for respondent city.
John R. Coan, Thompson, Hessian & Fletcher for respondents Gemlo, Coan & Thompson.
On September 8, 1922, the following opinion was filed:
The action is to enjoin defendants from enforcing an alleged void ordinance which prohibits the operation of stone quarries within the city limits without a permit from the council. Plaintiff is the present owner of the stone quarry involved in Brede v. Minnesota Crushed Stone Co. 143 Minn. 374, 173 N.W. 805, 6 A.L.R. 1092, and 146 Minn. 406, 178 N.W. 820, 179 N.W. 638, and alleges facts tending to show that it would be useless for him to apply for a permit. The court below granted an order to show cause why a temporary injunction should not issue, staying defendants pending the hearing. On the hearing the temporary injunction was denied and the restraining order vacated. The court, however, gave a few days stay so as to allow plaintiff opportunity to seek redress in this court. He appeals from the order denying the temporary injunction, and moves this court for an order staying defendants from proceeding to enforce the ordinance and from interfering with the operation of the quarry pending the appeal.
In United States Elect. Light Co. v. Ross, 9 App. Cas. (D.C.) 558, 559, it is held: "On appeal from an interlocutory order denying an injunction and discharging a restraining order previously granted, the appellate court cannot restore such restraining order, or grant a new one to take its place, as the function of the temporary restraining order ceases when the prayer...
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