Troy v. City of St. Paul
| Decision Date | 18 May 1923 |
| Docket Number | No. 23300.,23300. |
| Citation | 193 N.W. 726,155 Minn. 391 |
| Parties | TROY v. CITY OF ST. PAUL et al. |
| Court | Minnesota Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Ramsey County; John B. Sanborn, Judge.
Action by William J. Troy against City of St. Paul and others. From an order sustaining a demurrer to the complaint, plaintiff appeals. Appeal dismissed.
Upon appeal from an order sustaining a demurrer to a complaint in an action brought to enjoin a city building inspector from issuing a building permit, it was made to appear that while the action was pending and before the appeal was taken the permit had been issued. Held, that an injunction cannot annul an accomplished fact and that only a moot question was presented by the appeal.
Where a suit is founded on a statute or ordinance, and, before the suit has been concluded or vested rights have been acquired, the statute or ordinance is repealed without attaching a saving clause to the repealing act, the suit must stop where the repeal finds it.
The validity of an ordinance which was repealed after a suit was brought upon it and while an appeal was pending will not be determined, but the appeal will be dismissed on the ground that it presents only a moot question. John J. Kirby, of St. Paul, for appellant.
C. F. McNally, Eugene M. O'Neill, and Doty & Doty, all of St. Paul, for respondents.
Appeal from an order sustaining a demurrer to plaintiff's amended complaint. The cause of action set out therein and in the original complaint was founded on section 674 of article 16 of the building ordinance of the city of St. Paul, which declared that foundries and other classes of building enumerated could not be erected in a residential or business district unless the consent of the owner of certain classes of property was obtained.
The original complaint alleged that plaintiff was the owner of property adjacent to that owned by the defendant Oehrlein, that Oehrlein had applied for a permit to erect a foundry on his property, and that the council of the city of St. Paul had adopted a resolution authorizing the issuance of the permit, although the consent of property owners had not been obtained as required by the ordinance. The relief demanded was that the city and its building inspector be enjoined from issuing the permit, and that Oehrlein be enjoined from erecting and maintaining a foundry on his premises. On filing the complaint, plaintiff obtained a temporary restraining order returnable May 27, 1922. The city and Commissioner Clancy interposed a general demurrer to the complaint, and on June 2d the demurrer was sustained and the restraining order discharged. Plaintiff did not appeal, but on July 1st obtained an order requiring defendants to show cause why he should not be allowed to amend his complaint. Leave to file and serve an amended complaint was granted. It differed in no material respect from the original complaint. All the defendants joined in a general demurrer to the amended complaint, and the case comes here on appeal from an order sustaining the demurrer.
It was admitted at the argument that on November 16, 1922, while the appeal was pending, section 674 of the Building Ordinance was amended by striking out the provision relating to the property owners' consent and substituting a provision requiring the affirmative vote of five-sevenths of the members of the council to authorize the issuance of a permit for the erection of foundries or other buildings in certain enumerated classes. It was also admitted that on June 5, 1922, the building inspector issued a permit to Oehrlein by virtue whereof he has erected a one-story building used as a brass foundry.
[1] So far as the city and Commissioner Clancy are concerned, it is clear that when the permit was issued this became a moot case, for an injunction cannot annul an accomplished fact. Anderson v. Village of Louisberg, 121 Minn. 528, 141 N. W. 97;City of St. Paul v. St. Paul City R. Co. et al. (Minn.) 193 N. W. 175; 3 C. J. 358. As to these defendants, the appeal must be dismissed for this reason.
2. With respect to the rights asserted against the defendant...
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