Rice v. Jefferson

GIill, J. — This is an injunction suit whereby, it was sought to restrain defendant Jefferson from erecting a wooden building within the fire limits, as prescribed by an ordinance of Kansas City. Plaintiffs, Rice and Hunt, are owners of real estate within the block. Jefferson justified the erection under a permit issued by the superintendent of buildings, it being provided in the ordinance that, if the owners of-two-thirds of the front feet of the block consent, then such permit to construct a wooden building might issue. Plaintiffs alleged that defendant did not have the consent of the necessary two-thirds. Defendant began the construction of his building in April, 1890, and was shortly arrested and prosecuted before the city recorder for an alleged violation of the ordinance. He was tried, found not guilty, and discharged. Thereupon plaintiffs applied for this injunction. The court below awarded the relief prayed by the plaintiffs, and defendant appealed. In view of what seems to be the well-settled law in such cases, I don’t see how this injunction suit can be [468] maintained. Admitting the alleged invalidity of defendant’s permit, and that he was constructing a building in violation of the city ordinance, I have yet to find an authority that in such a case a court of equity will interpose the extraordinary remedy by injunction. But, to the contrary, see 1 High on Injunctions, secs. 745, 748; Trustees v. Moore, 34 Wis. 450; Village of St. John v. McFarlan, 33 Mich. 72; Mayor v. Thorne, 7 Paige, 261; State ex rel. v. Crawford, 28 Kan. 726; State v. Uhrig, 14 Mo. App. 413; Warren v. Cavanaugh, 33 Mo. App. 102; McClosky v. Kreling, 76 Cal. 511. Mr. High thus expresses the general doctrine: “Although the jurisdiction of equity to prevent by injunction the erection or maintenance of nuisances is undoubted, the courts are, nevertheless, inclined to-limit its exercise to cases of nuisances per se, and not to' extend the relief to enjoining structures which are' merely prohibited 'by municipal regulation.” Sec. 748. Many of the cases denying such relief declare as a. reason that it is not the province of equity courts thus to attempt to enforce the criminal law or the penal ordinances of municipalities. The evils and embarrassments attending such a course are manifest. Ordinances, police and otherwise, are framed to cover a, great variety of cases, and in nearly every instance-prosecution for a violation thereof is provided for by the creation of police courts, etc. Now, if, on every threatened infraction of these municipal regulations, a. party may resort to equity and command the injunctive-arm of the court, then we have a transfer of trifling misdemeanors, and the court of equity becomes an inferior-court of criminal jurisdiction rather than one of the-extraordinary powers and rare jurisdiction generally-accorded to it. Again, it is said that, “notwithstanding the well-established jurisdiction of equity to enjoin the- erection [469] of nuisances, and the fact that in some cases the relief is even extended to the abatement of the nuisance, yet the existence of a legal remedy will be held sufficient, ground for withholding an • injunction. Thus, when a full and complete legal remedy is provided by a statute authorizing courts of law to give judgment of abatement of such nuisances, then a court of equity may refuse to entertain an action to enjoin and abate such nuisance.” 1 High on Injunctions, sec. 745. This, of course, is based upon the well-known rule that equity will not interfere in such cases except in the absence of an adequate remedy at law. See, on this point, State ex rel. v. Crawford (supra), 736, and State v. Uhrig (supra). Now the charter and ordinances of Kansas City provide full and adequate legal remedy for the matter here complained of. If defendant was proceeding, in violation of the city’s building ordinances, to erect a wooden building within the prohibited district there was full and complete remedy provided by prosecution before the city recorder or police judge; and the same relief as here applied for was there obtainable. He might have been, as he was, arraigned before the city judge, tried, and if found guilty the court was fully empowered to direct an abatement of the so-called nuisance. It seems, too, that this was the first effort of these plaintiffs ; the defendant was tried before the recorder for the offense here charged but found not guilty. If there was then dissatisfaction with the result reached, an appeal to the criminal court of Jackson county was open to the prosecution. But this legal remedy was abandoned at this point and recourse sought in a court of equity by injunction. The creation of courts of equity was not to supply simply additional courts for the remedy of wrongs, but rather to furnish remedies not to be had in courts of law. If the law courts are empowered to give the same adequate relief, then resort cannot be had [470] to equity. Besides, if proceedings in this manner should be sustained, then one accused of crime or misdemeanor may be deprived of the constitutional right of trial by jury. As in this case, Jefferson, on the question of his guilt or innocence of the matter charged against him, was entitled to the verdict of a jury, and he was, in the first instance, arraigned and charged in a court where this could be had. But, by this proceeding in equity, a trial of this question was sought to be had before the one judge and not a jury of his peers, to which he was entitled; and as already said that law court was fully empowered to give every relief sought in this equity court. Entertaining these views it becomes unnecessary to mention other points suggested in briefs of counsel. The judgment of the circuit court will be reversed, with directions to dismiss the bill. All concur.