Princess Amusement Company v. Metzger

• Decision Date: 26 November 1907
• Docket Number: 20,984
• Citation: 82 N.E. 758,169 Ind. 376
• Parties: Princess Amusement Company v. Metzger, Chief of Police, et al
• Court: Indiana Supreme Court

82 N.E. 758

169 Ind. 376

Princess Amusement Company v. Metzger, Chief of Police, et al

No. 20,984

Supreme Court of Indiana

November 26, 1907

From Superior Court of Marion County (72,555); James M. Leathers Judge.

Suit by the Princess Amusement Company against Robert Metzger, as chief of police of the City of Indianapolis, and others. From a judgment for defendants, plaintiff appeals.

Affirmed.

Charles A. Weathers and William S. Taylor, for appellant.

Frederick E. Matson, Crate D. Bowen and Joseph F. Cowern, for appellees.

OPINION

Monks, C. J.

This suit was brought by appellant against the city of Indianapolis, its chief of police, board of public safety and building inspector to enjoin the enforcement of an ordinance of said city on the ground that the same is void. The separate demurrer of each appellee to said complaint for want of facts was sustained to each paragraph thereof, and, appellant refusing to plead further, judgment was rendered in favor of appellees.

The errors assigned call in question the action of the court in sustaining said demurrers.

It appears from the first paragraph of complaint, which is set out in appellant's brief as required by clause five of rule twenty-two of this court, that appellant is a corporation organized under the laws of this State "that defendant, Thomas A. Winterrowd, is the duly appointed, qualified and acting building inspector of the city of Indianapolis, Indiana, charged with the duty of approving all plans and specifications of buildings to be constructed in Indianapolis, and it is made his duty to approve all plans complying with the city ordinances and laws of Indianapolis, Indiana; that, in pursuance to the provisions of its articles of incorporation, plaintiff purchased and is now the owner of the following described real estate in Marion county, Indiana [describing it]; that plaintiff purchased same for the purpose of building thereon and operating a skating-rink, and paid therefor more than $ 17,000; that at the date of said purchase there was no city ordinance or state law prohibiting the owning, building or operating of a skating-rink in Indianapolis; that at said date there existed a city ordinance authorizing the licensing and operation of skating-rinks; that there is now, and was at the date of said purchase, a dwelling-house used for residence purposes within less than one hundred feet of said real estate; that the plaintiff purchased said real estate for the purpose of building thereon a hall to be used as a public hall and as a health resort, and especially to be used as a skating-rink; that in pursuance to said purpose and authority, and at great cost, the plaintiff caused to be prepared, by a skilful and learned architect, plans and specifications for the construction of a beautiful and spacious hall, which plans and specifications of said proposed building in all respects complied with all the laws and regulations of the city ordinances of Indianapolis, Indiana, regulating the construction of such buildings, except as hereinafter set out; that plaintiff proposes and intends and will use said building as a public hall and for conducting a skating-rink, within reasonable hours, for a part of the year, from 9 o'clock a. m. to 11 o'clock p. m.; that the same will be conducted and maintained in an orderly and legitimate manner, and in such manner as not to be a private or public nuisance, and in such a manner as not to annoy or injure the public; that no disorderly or immoral conduct will be allowed; that said building will be constructed of brick and the very best building material, and will be modern in all respects; that the defendants know such to be the purpose of plaintiff; that subsequent to the organization of plaintiff company and the purchase of said lots, and for the purpose of preventing plaintiff from constructing said building and operating therein a skating-rink as aforesaid, there was duly passed by the city council of Indianapolis, and approved by the mayor thereof, an ordinance which is in words and figures as follows [setting out said ordinance]; that, after the passage of said ordinance, plaintiff filed with defendant Thomas A Winterrowd, inspector of buildings, plans and specifications for said building, and requested an approval of same and a permit to build said hall; that said plans complied with all the ordinances of Indianapolis regulating buildings of this character, except the skating-rink ordinance hereinbefore set out; that said defendant Winterrowd, as building inspector, admitted that said plans and specifications entitled plaintiff to an approval and a permit to build, except for the provisions of said skating-rink ordinance, but declared that, under the provisions of said skating-rink ordinance, it was unlawful to construct such a building, and that it was unlawful for him, as building inspector, to give his approval to the plans and specifications, or to authorize a permit for the construction of the same, and that he would not at any time in the future consider said plans or give his approval thereto, and that he would abate the construction and operation of a skating-rink; that said defendant Winterrowd, acting under said invalid ordinance, threatens to, and will, in violation of plaintiff's rights, continue to enforce said skating-rink ordinance, by refusing to consider any and all applications and specifications for the construction on said real estate of the building hereinbefore referred to; that the defendant Winterrowd, as building inspector, and the defendants Lew W. Cooper, Charles W. Tutewiler and William Schoppenhorst, constituting the board of public safety of Indianapolis, and Robert Metzger, as chief of police of Indianapolis, and the city of Indianapolis, are threatening to, and will, in violation of plaintiff's rights, wrongfully and without authority, enforce against the plaintiff, its officers, employes and agents, said invalid skating-rink ordinance, in order to prevent plaintiff from constructing a skating-rink hall according to the plans and specifications hereinbefore referred to, and are threatening to, and will, unless restrained, cause the arrest of the plaintiff's officers, agents and employes if plaintiff attempts the construction of said hall or operation of a skating-rink in said hall; that they will cause the arrest and imprisonment of plaintiff's said agents, officers and employes and the assessment of fines against the plaintiff, and in divers other ways harass and injure the plaintiff, and prevent it from constructing or operating said building as a skating-rink, and thereby prevent plaintiff from the lawful use of its said property to its very great and irreparable injury; that plaintiff has no adequate remedy at law to prevent said wrongful act." Said paragraph further alleges the grounds upon which said skating-rink ordinance is claimed to be void. Then follows a prayer that...