Opinion
No. 33527.
November 28, 1938. ON MOTION TO DISMISS.
1. MANDAMUS.
Under statute authorizing taxpayers to defend in "all suits" against municipal or county officers, and to appeal from adverse judgment, taxpayer could defend for mayor and members of the board of town aldermen, in mandamus proceeding to compel enforcement of ordinance, and could appeal from judgment awarding the writ, as against contention that statute was applicable only to actions directly involving taxes (Code 1930, section 78).
2. APPEAL AND ERROR.
The statute authorizing taxpayers to appeal from judgments adverse to municipal and county officers, if officers do not appeal within 30 days, is merely permissive, not limiting time within which appeals must be taken, and the limitation on time in which to appeal is that of the general statute governing appeals (Code 1930, sections 78-80).
3. APPEAL AND ERROR.
Under statute governing appeals by taxpayers from adverse judgments against county or municipal officers, and permitting notice to the stenographer to transcribe notes of evidence to be given within 30 days after appeal is taken, notice given on the day the appeal bond was filed, though not within the time prescribed by statute governing appeals generally, was timely (Code 1930, sections 78-80).
4. APPEAL AND ERROR.
The Supreme Court would not advance on its docket an appeal from judgment awarding mandamus to compel enforcement of municipal ordinance, where advancing the case would result in its submission but a short time, if any, earlier than if case should retain its present place on the docket (Code 1930, section 3372).
ON MERITS. (Division A. Jan. 23, 1939. Suggestion of Error Overruled Feb. 20, 1939.) [185 So. 803. No. 33527.]1. MUNICIPAL CORPORATIONS.
An ordinance passed simply by number without setting forth its provisions in the minutes is void.
2. MUNICIPAL CORPORATIONS.
An ordinance creating fire district and providing for removal of buildings therefrom by town authorities at expense of owners, or condemnation, is void where no machinery is set up for its effective enforcement (Code 1930, section 2428).
3. MANDAMUS.
Issuance of mandamus commanding mayor and aldermen to enforce ordinance that created fire district was error, since a nonconforming building in the district would be a "nuisance per se," for abatement of which equity afforded a complete remedy.
APPEAL from the circuit court of Jefferson Davis county; HON. J.C. SHIVERS, Judge.
Livingston Livingston, of Prentiss, for appellee on Motion.
The motion to dismiss the appeal should be sustained. If appellant was entitled to take an appeal in this cause under Section 78 of Mississippi Code of 130, we maintain that he was limited to 30 days time after judgment in which to take the appeal under said section as he was permitted by the court below to appear and defend the suit after the Mayor and Board of Aldermen had refused to make defense to the petition filed for mandamus to compel said officials to perform their official duties with reference to the enforcement of the fire ordinance enacted by the Mayor and Board of Aldermen. The Mayor and Board of Aldermen of the Town of Prentiss refused to make any defense in the lower court and the appellant, V.B. Garraway, having been permitted by the lower court to appear and defend the suit as provided by Section 78 only had thirty days in which to perfect the appeal.
It was well known to appellant that the Mayor and Board of Aldermen would not appeal for the reason that said board had refused to make defense to the suit in the court below, and well knew that it was his duty to execute the appeal within thirty days after the rendition of the judgment by the court below. This he did not do and is therefore barred from bringing this appeal as will be seen by reference to Sections 78, 79 and 80 of the Mississippi Code of 1930.
Certainly under no circumstances could appellant have appealed this cause after the expiration of 60 days from the date of the rendition of the judgment by the court below.
Section 80, Code of 1930.
We maintain that the appellant, V.B. Garraway, never had any standing in this suit as the mandamus petition sought to compel the Mayor and Board of Aldermen to enforce an ordinance of the Town of Prentiss, which ordinance fixed a fire limit in the Town of Prentiss and that the grievance sought to be remedied was simply to prohibit a building from being erected in said fire limits in direct violation of said ordinance.
Certainly the notice to the official stenographer to transcribe and make up her notes was given out of time and the transcribed notes are improperly in the record and should be stricken from the record without consideration of any kind.
Section 2351, Code of 1930.
Finally, we contend that the appeal should be dismissed but if we are mistaken in this, then the stenographer's notes should be stricken from the record because filed out of time, and if mistaken in this, then we respectfully request this court to advance this cause on the docket as provided by Section 3372 of Mississippi Code of 1930.
G.L. Martin, of Prentiss, for appellant on Motion.
We most respectfully submit that Mr. Garraway took his appeal in strict compliance with Sections 78, 79, 80 and 2323, Code of 1930.
Forrest County v. Clark, 163 Miss. 120, 140 So. 733.
We submit that the statute is not subject to construction. It is plain and unambiguous. It simply says that the taxpayer has the right of appeal after 30 days, if the municipal or other board does not exercise its right to appeal within that time and there is no restriction on his time after that. He can go on five months lacking a day after the 30 days and still get his appeal up.
Hamner v. Lbr. Co., 100 Miss. 349, 56 So. 466; Breland v. Lemastus, 183 So. 500.
It seems to us that even if the statute by any possible stretch of reason is subject to construction, the construction put upon it by the appellees is all out of reason and is monstrous. What reason could there be to make a statute hold that a taxpayer must be restricted to 30 days when all other litigants are given six months. It is my opinion that even if the board of supervisors or the mayor and board of aldermen do not exercise their right of appeal within 30 days and then the taxpayer does not appeal that before the six months have expired the municipal board could still get up its appeal, but that particular question is not here involved.
Appellees make some kind of argument to the effect that the stenographic notes should be stricken. We reply that notice was given the court reporter on the very same day, August 10, 1938, on which the appeal bond was filed and approved. We submit that Section 80 of the Code 1930 provides that this notice may be served 30 days after the filing of the appeal bond. The taxpayer has 30 days after the filing of his appeal bond during which to serve notice on the stenographer. Just how appellee can interpret this statute in any way except just what it says in the plainest kind of English is beyond us. In fact, the cognate sections 78, 79 and 80 of the code are written in the plainest kind of English and cannot be misunderstood, it seems to us. Section 3375 would give us the right, if there be any error in making this appeal.
As to the motion made by appellees to advance the case on the docket, appellants wish to state that while appellants do not apprehend any great public necessity for any advanced hearing, yet we do not care to stand in the way and simply submit the matter to the court.
Geo. L. Martin, of Prentiss, for appellant.
Mandamus is improper remedy and circuit court had no jurisdiction.
Ohlson v. Durfrey, 82 Miss. 213; Haskins v. Bd. of Suprs., 51 Miss. 409; C.J., Mandamus, sec. 56; Jefferson County v. Arrghi, 51 Miss. 667; State Board of Education v. West Point, 50 Miss. 638; Beaman v. Leake County Bd. Police, 42 Miss. 237; Attala Co. Bd. Police v. Grant, 17 Miss. 77, 47 Am. Dec. 102.
We do not find any Mississippi case where the district attorney has assumed to act for the state in going into a municipality and undertaking by the powerful writ of mandamus to coerce officials in the internal affairs of local municipal government where no state statute is involved.
Every adequate provision has been made to discipline recalcitrant municipal officers. If the district attorney felt that there was just ground, as evidently his petition avers, of flagrant disregard of public duty, why did he not invoke the ordinary remedies?
Sections 1065, 1066, 2903 and 2907, Code of 1930; State v. Glennen, 93 Miss. 836, 47 So. 550.
If the district attorney can go into a circuit court and invoke mandamus to force municipal officers, before whom there has never been lodged any official petition or complaint, and that is the case here, then it is that the office of district attorney becomes over night the most officious office under our government.
61 Miss. 141; Bd. of Suprs. v. State ex rel., 134 Miss. 180, 90 So. 593.
If what the district attorney alleges is true, then it seems to us quo warranto would lie, for if these officials have failed or refused to enforce a legal ordinance, they have forfeited their right to office. We say it is all a scheme to avoid the injunction proceedings and thus it is shown these private petitioners not only show lack of clean hands, but show they had ample and adequate remedy to protect their rights, if any they have, otherwise than by mandamus.
38 C.J., sections 272, 275; State ex rel. Wear v. Francis, 95 Mo. 44; High on Extra-Or. Remedies, sec. 337.
We submit that the circuit court heard the whole matter on all the facts and sat as the mayor and board of aldermen in determining what the facts were and what weight were to be given to them and determined what legal right petitioners had under the facts, all of which, we submit, was outside the jurisdiction of the circuit court on mandamus, for these facts and evidence existing in parol were first to be determined and some decision reached by the municipal officers.
Courts can't control discretion and won't interfere in affairs of a municipality.
18 L.R.A. sec. 38; Alger v. Seaver, 138 Mass. Rep. 331; People ex rel. Clapp, v. Listman City Com., 82 N.Y. Supp. 784; Clay City v. Roberts, 99 S.W. 651.
Mandamus will not lie to control discretion of public officers, boards, municipalities.
38 C.J., 258; Madison Co. v. Alexander, Walker 523; Attala Co. v. Grant, 9 S. M. 77; Swan v. Gray, 44 Miss. 393; Vicksburg v. Rainwater, 47 Miss. 547; Clayton v. McWilliams, 49 Miss. 311; Bd. of Education v. West Point, 50 Miss. 638; Shotwell v. Covington, 69 Miss. 735, 12 So. 260; Monroe Co. v. State, 63 Miss. 135; Sullivan v. R.R., 85 Miss. 649; Cole v. State, 91 Miss. 628; Robinson v. Ittawamba Co., 105 Miss. 90, 62 So. 3; Greenwood v. Provine, 108 So. 284; Rankin Co. v. Lee, 113 So. 194; 158 So. 206; City of Jackson v. McPherson, 158 Miss. 152, 130 So. 287.
Conditions precedent to issuance of mandamus are: Petitioners must show a clear legal right and not to establish one; No proper allegation in petition that mayor and board failed to perform a legal duty; No complaint or demand shown as filed with board; No judgment, order or decision either alleged in petition or entered of record, or profert made of same.
Loeb v. Bd. of Trustees, Pearl River Jr. Col., 158 So. 333; 167 Miss. 612; Bd. of Suprs., Forrest County v. Stelle, 124 Miss. 340, 86 So. 810; 169 Miss. 790, 142 So. 747; Honea v. Monroe Co., 63 Miss. 171; 38 C.J., sec. 50; Swan v. Ward, 24 Miss. 439; State v. Bd. Suprs., Coahoma Co., 64 Miss. 358, 1 So. 501.
Mandamus will not go to enforce equitable rights.
Hook v. Bank, 134 Miss. 185, 98 So. 594; 26 Cyc. 155, 349; Foote v. Noxubee Co., 67 Miss. 156, 6 So. 612.
Petitioners do not come with clean hands and are estopped by laches.
C.J. Mandamus, secs. 68, 97; 18 R.C.L., sec. 286; Chapman v. Douglas County, 27 L.Ed. 378; Hill v. Boston, 192 Mass. 569, 79 N.E. 825; State v. Finley, 74 Mo. App. 213; Taylor v. Bayonne, 56 N.J.L. 265, 28 A. 380; N.Y. Peo. v. Dayton, 52 App. Div. 371, 65 N YS. 342; Ohio State v. Cincinnati, 34 O. Cir. Ct. 315; State v. Superior, 108 Wis. 16, 83 N.W. 110; Overstreet v. Lord, 160 Miss. 444, 134 So. 169.
Petitioners had other adequate remedy.
Alger v. Seaver, 138 Mass. Rep. 331; Bd. of Suprs. v. Lee, 147 Miss. 99, 113 So. 194; 91 Miss. 562; 105 Miss. 90; 128 Miss. 885; 143 Miss. 42, 108 So. 284; Wright v. Edwards Hotel, 101 Miss. 470, 58 So. 332; 142 Miss. 815, 108 So. 178; 26 Cyc., page 168; City of Greenwood v. Provine, 147 Miss. 42, 108 So. 284.
Petition failed to make necessary allegations.
Loeb v. Board of Trustees, 158 So. 333; Anderson v. Robbins, 161 Miss. 604, 137 So. 476.
There is no showing that there has been a clear abuse of discretion. There is no allegation at all in the petitions that the matter has ever been before the board for the exercise of its discretion.
Detamare v. City Com., 145 P. 462; 7 McQuillin on Municipal Corporations, sec. 896; McHenry v. State, 91 Miss. 572.
It seems to us that to get at the real justice of the whole case, some other remedy than mandamus should have been used, so that the whole situation of the whole case might have been developed and justice done all parties. The machinery of mandamus is not adapted to such a case. It would be doing violence and adopting a new precedent to hold that mandamus would be an appropriate remedy here, for under mandamus, as we understand it, the inquiry is restricted to the matters on the face of the record to establish the legal right.
The circuit court held that Ordinance 112 was void, but that Ordinance No. 96 was revived. We submit that Ordinance No. 112 is void. As to whether the circuit court could inquire into its validity vel non, we are in doubt; but he did and held it void, as stated and that Ordinance No. 96 was in force and effect. Now, granting the court could inquire into these ordinances to test their validity, we submit that Ordinance No. 96 was dead and gone and never came back to life until the circuit court breathed life into it on the hearing and by the judgment of the court. If that be true, then since the court held Ordinance No. 112 void, certainly Garraway never violated this void ordinance; and since Ordinance No. 96 never had any validity until the court breathed life into by its judgment, then Garraway has violated neither, for he has not struck a lick on his house since this proceeding was begun, and this judgment holding Ordinance No. 112 invalid and Ordinance No. 96 valid, could have no retroactive effect.
7 McQuillin on Municipal Corporations, page 7016, sec. 834; Mayor, etc., of Rutherford v. Swink, 35 S.W. 554; 1 Lewis' Sutherland Statutory Construction, sec. 245.
Livingston Livingston, of Prentiss, for appellees.
As we understand the law, ordinances and resolutions legally passed and adopted by municipal authorities are in reality the result of delegated state authority and possess, insofar as its citizens are concerned, as much efficacy. We therefore submit that the State of Mississippi acting through its district attorney was empowered to bring this suit for a writ of mandamus and that such suit was and is a matter of public interest such as is contemplated by Sections 2348 and 2357 of the Mississippi Code of 1930.
The ordinance in question provides for a summary proceeding and it required only that said ordinance be violated to cause a mandatory duty to devolve upon the municipal authorities to enforce the summary remedy therein provided. The erection, therefore, of a two story wooden building within the designated fire limits of the Town of Prentiss was a violation of the ordinance and placed a mandatory duty on the municipal officers to proceed summarily to remove said building from said fire limits and/or to enforce said ordinance. A duty that was entirely ministerial in its nature calling for neither judicial determination nor legal process, but, merely demanding manual action without the exercise of discretion or judgment in any manner, shape or form.
The general rule with respect to a demand as a condition precedent before bringing a suit for mandamus is stated in 18 R.C.L., page 123, section 37 as follows: "According to the better view where the duty sought to be enforced is one owing to the public generally, no demand for performance is requisite to place the respondent in default as a prerequisite to the application for mandamus to compel the performance of the duty; in such cases the law itself stands in lieu of a demand and the omission to perform the required duty in place of a refusal."
It is contended by appellant that petitioners below had an adequate remedy at law, but this appellees most emphatically deny. It is suggested by appellant, who agrees apparently with us that appellees were entitled to relief, that petitioners should have proceeded by injunction in order to obtain relief. It is, however, an elementary principle of law that the availability of equitable remedies will not bar an action of mandamus.
18 R.C.L., page 135, sec. 50.
Appellant apparently labors under the impression that the mayor and board of aldermen had a right to pass on the question of whether or not the ordinance involved in this suit was valid or not. In this he is undoubtedly mistaken for it is a recognized principle of law that where the performance of a ministerial duty is enjoined by law upon a public officer he has no right to pass upon the law's validity.
18 R.C.L., page 117, sec. 30.
The facts of this case fully disclose that appellant in open violation of the ordinance undertook to erect this prohibited building within the fire limits of the town, without even attempting to obtain a permit, from the mayor and clerk as provided and directed by the said ordinance; the evidence further shows that all of his acts in reference to erecting the said building were in open and flagrant violation of the said fire ordinance. Hence it appears to us that instead of appellees being estopped in this suit that it is the appellant and intervenor who is estopped.
Argued orally by Geo. L. Martin, for appellant.
The appellee, by a motion, requests that this appeal be dismissed, but if not then the stenographer's transcript of the evidence be stricken from the record and the case be advanced on the docket under Section 3372, Code of 1930.
The case is a mandamus proceeding in which the mayor and the members of the board of aldermen of the Town of Prentiss are sought to be directed to enforce a municipal fire prevention ordinance. They declined to defend the action and the appellant was permitted to do so under Section 78, Code of 1930. The appeal is from a judgment awarding the writ of mandamus.
In support of the motion to dismiss it is said: (1) That the appellant was without the right to appear and defend the action in the court below, or to appeal from the judgment rendered; and (2) the appeal was not taken within the time allowed therefor.
Section 78, Code of 1930, provides that: "In all suits now pending or hereafter brought, against the board of supervisors of any county, or the mayor and board of aldermen of any city, town or village, or any other board, commission, or other officer of any county, or municipality, or district, in their official capacity, any taxpayer or taxpayers of the county, municipality or district, shall have the right at his or their own expense to employ private counsel to defend all suits instituted as above and may prosecute an appeal to the Supreme Court of the State from any judgment or decree of a circuit or chancery court adverse to such officer or officers, if such officer or officers do not prosecute an appeal within thirty days from date same is rendered." The appellee's contention is that the permission here given to defend actions is to taxpayers as such and consequently the statute should be construed so as to limit the permission to actions directly involving taxes. We cannot so limit the broad and all-inclusive words "all suits" of the statute. Many, probably all, suits against county and municipal officers in their official capacity, other than such as directly involve taxation, are of more or less interest to the county and municipal taxpayers; at all events, the legislature seems to have so thought.
The judgment appealed from was rendered on May 12, 1938, and the appeal bond required by Section 79, Code of 1930, was filed and approved on August 10, 1938. According to the appellee, this bond should have been filed within thirty days after the judgment was rendered. The limitation of the time in which appeals can be taken from judgments of this character is that of the general statute governing appeals. The thirty-day stipulation in Section 78, Code of 1930, is not a limitation on the time within which appeals must be taken, but is a permission to taxpayers to take the appeal in event the officers should fail to appeal within thirty days.
The notice to the stenographer to transcribe his notes of the evidence was not given within the time therefor prescribed by the statute governing appeals generally, but Section 80, Code of 1930, which governs here, permits the notice to be given, when an appeal is taken by a taxpayer, within thirty days after the appeal is taken. The notice was here given on the day the appeal bond was filed and therefore within the time therefor.
The position of this case on the Court's docket is such that to advance it would result in its submission, but a short time, if any, earlier than it would be should it retain its present place on the docket. The request to advance will therefore be denied.
Motion overruled.
In the Circuit Court of Jefferson Davis County, The State of Mississippi, on the relation of Dale, District Attorney, filed a petition, in vacation, for a writ of mandamus against the mayor and the several members of the board of aldermen of the Town of Prentiss.
The petition alleged that V.B. Garraway was then erecting a wooden or frame building in a designated fire limit of the Town of Prentiss in violation of the ordinances. The petition prayed for a judgment directing that a writ of mandamus issue requiring the mayor and board of aldermen to abate and remove said building summarily, "as provided by ordinances," and to otherwise enforce it.
On the date fixed for the hearing, the mayor and board of aldermen did not plead, but V.B. Garraway, the party who was alleged to have violated the ordinances, on his motion, was permitted to appear and plead. He filed a plea of a general issue and a notice under the general issue that more than fifteen other buildings had been erected in said fire district. He also filed a special plea in bar to the effect that the board of mayor and aldermen had by order or resolution decided to bring no proceedings against him to compel the removal of the building. A copy of the order was exhibited, which showed that the board, by a vote of three to two, declined to institute injunction proceedings. A demurrer was sustained to this special plea in bar.
Before the trial of the case, three citizens, having buildings within the fire district, filed a petition to join with the district attorney in the petition, which was allowed by the court.
The proof in the case was Ordinance No. 96 of the town, and it was not disputed but that Garraway had practically completed a building condemned by the ordinance as being unlawful, and that its removal would practically destroy the material used in its construction.
Ordinance No. 96 was adopted by the governing authorities on January 5, 1926; and subsequently on May 5, 1931, the mayor and board of aldermen undertook to pass Ordinance No. 112, but the court below held that it was void, and this was clearly correct for the reason that the ordinance had been passed simply by number without setting forth its provisions in the minutes. Since it was void and had no effect, we consider only Ordinance No. 96.
The ordinance here involved and sought to be enforced by Section 1 thereof established a fire limit district in a certain area of the town; Section 2 provided that it should be unlawful to erect therein any building made of sheet iron, concrete blocks, wood or any combustible material; Section 3 required a permit before any building was erected in that district, signed by the mayor and clerk; and Section 4 had reference to the reconstruction of buildings which had been partially burned, and required a written permit therefor.
Section 5 is in the following language: "That any building or buildings, house or houses, structure or structures erected, constructed, enlarged, repaired or replaced at or on any place within said limit in violation of this ordinance may be removed from said fire limit by the authorities of the Town of Prentiss, Mississippi, at the expense of the owners of such building or buildings, house or houses, structure or structures, and such building or buildings, house or houses, structure or structures may be condemned and sold by the authorities of said Town to pay the expense so incurred in such removal thereof."
Section 6 provided that it should be a misdemeanor for any person to violate any provision of the ordinance.
The mandamus court excluded the evidence as to the construction of the other buildings in violation of the ordinance and directed the writ of mandamus to issue to the mayor and board of aldermen. The pertinent part of which is in the following language: "It is thereupon considered, so ordered and adjudged by the court that a writ of mandamus issue out of this court directed to the Board of Mayor and Aldermen of the Town of Prentiss, Mississippi, commanding said Board of Mayor and Aldermen to enforce said Ordinance No. 96 in all respects in accordance with its terms and provisions, and as provided by law, and that the defendants and V.B. Garraway, intervenor be and they are hereby taxed with all costs of court."
Garraway, who had been permitted to intervene and defend the suit in the court below, prosecutes an appeal to this Court.
It will be observed that Section 5 of the ordinance in question provided that the town authorities should condemn and remove the building. It will be further observed that no machinery was set up in the ordinance for its effective enforcement. It is left to speculation as to who, of the town authorities, would be vested with the authority to abate this nuisance, how it was to be determined as to whether or not a building violated the ordinance, and how it was to be condemned or removed. In this case, the proof is to the effect that removal of the building will destroy its value. In these respects, the ordinance is wholly incomplete.
It will be observed that, in effect, the writ of mandamus commanded the mayor and board of aldermen to enforce the ordinance. It will be observed at once that these officials will be met with these deficiencies in the ordinance. It will be necessary for the mayor and board of aldermen to set up machinery for the adjudication of the fact that the building complained of is erected in violation of its ordinance, how the removal of the building from the district will be effected, and how it will be condemned as provided in the statute.
Section 2428, Code of 1930, authorizes the passage of suitable ordinances creating fire districts and the enforcement of ordinances by municipalities against the construction of any building in violation of an ordinance passed pursuant and in conformity thereto.
It will be further observed that in so far as the enforcement of Ordinance No. 96 is concerned that the only course left thereunder for the mayor and board of aldermen as such would be by criminal prosecution of the offending owner of the building, which would be wholly inadequate to accomplish the purpose of abating the nuisance by removing the building from the protected district.
It is also manifest that the mayor and board of aldermen, before they could proceed to remove this building or condemn it, must legislate and pass the necessary resolutions or ordinances for its enforcement. They must also provide and set up some plan and adjudicate the necessary facts as a basis for the lawful condemnation and removal of the building. These necessary acts would not, under any definition, be merely ministerial duties. In McHenry v. State, 91 Miss. 562, 44 So. 831, 16 L.R.A. (N.S.), 1062, this court said: "The circuit court undoubtedly has jurisdiction generally to try a mandamus proceeding; but a mandamus suit must be tried according to its inherent nature, as an extraordinary remedy, ever limited in its scope, and moving, as stated, generally within a very limited groove, and in this case within a very special limited groove — the board having nothing to do but the purely ministerial duty of meeting and declaring the result." In Swann v. Buck, 40 Miss. 268, this Court said: "It is a general rule, that whenever a statute gives power to, or imposes an obligation on, a particular person, to do some particular act or duty, and provides no specific remedy on non-performance, a mandamus will be granted. Tapping 80 (30). There must be a clear legal right, and no specific legal remedy for its enforcement. When directed to a public officer, it must be to enforce the performance of a mere ministerial act, not involving on the part of the officer the exercise of any judgment or discretion. (Marbury v. Madison, 1 Cranch 137; Decatur v. Paulding, 14 Pet. 524; Brashear v. Mason, 6 How. 92." This was cited with approval in Jarvis v. Board of Supervisors of Warren County, 49 Miss. 603.
It follows that we are of the opinion that the court below erred in granting the extraordinary prerogative writ of mandamus in this case.
We are further of the opinion that the relator and private persons who joined him in the suit, had a complete remedy to prevent or abate the nuisance alleged in the chancery court of that county for it would be a nuisance per se. The remedy in equity is complete, adequate, speedy, efficient and available. On the question of whether or not an adequate remedy in equity is available to a petitioner on mandamus the courts of this country are in conflict. See 18 R.C.L., pages 135, 136, sec. 50 and notes, and George S. Chatfield Co. v. Reeves, 87 Conn. 63, 86 A. 750, L.R.A. 1916D, page 321. In view of the fact that the chancery court is now as speedy as a court of law, and has a more complete machinery under its control for the abatement of a nuisance, there is no sound reason why we should not now consider the adequacy of the remedy in equity to abate such a nuisance as a building erected in violation of ordinances, which endangers the property of the citizens of the municipality and of the fire district. The trial in chancery court is usually without the intervention of a jury, the pleading is simple, and delay is no longer necessary in that court because cases are heard in open court, with a stenographer to note the evidence and transcribe same. No sort of confusion can arise in a court of equity in the enforcement of the right here sought to be invoked, and that court has the power to render a decree which will effectually end the rights of all parties, and no subsequent damage suits can arise because of the manner in which the nuisance is abated by the decree of the court.
Reversed and petition dismissed.