Opinion
04-26-1905
JACKSON v. MILLER.
Neilson Abeel, for complainant. Malcolm MacLear, for defendant.
Suit by Philip N. Jackson against Leslie B. Miller, as superintendent of buildings of the city of Newark. On application for preliminary injunction to restrain defendant from threatened destruction of plaintiff's fence. Granted.
Neilson Abeel, for complainant. Malcolm MacLear, for defendant.
EMERY, V. C. Complainant in 1900 erected a wooden fence 20 feet high on the rear of his lots, located in Waverly avenue, in the city of Newark. Two dwelling houses are erected on the front of the lots and within about 25 feet of the fence. At this time there were no ordinances regulating the height of fences, and it does not clearly appear that the premises on which the fence was erected were within the fire limits fixed by the common council. The Revised Ordinances (Revision of 1902), adopted January 3, 1902, by section 100, p. 51, included the premises within the fire limits and provided (section 103, p. 53) that before the erection of any building or part of any building, structure or part of any structure, within these limits, the owner should procure a permit from the superintendent of buildings. By section 105, subd. "c," (page 57), it was provided that "fences of wood shall not be erected over eight feet high"; and section 161 of the Revised Ordinance of 1902 (page 98), provided a penalty of $50 for each violation or failure to comply with any provision of the ordinance for a first conviction, and a fine of $25 for each day's continuance of violation. At the time of the passage of this ordinance there was no special legislative authority giving the city authority to regulate the height of fences. On April 8, 1903, a law was passed (P. L. 513) authorizing the common council of cities to regulate by ordinance the height and material of fences, and to provide for the removal, change, or alteration of all fences, signs, billboards, and advertisements "now or hereafter existing," and the imposition of a penalty of $25 for any violation thereof. On June 19, 1903, an ordinance was passed amending section 105, subd. "c," of the Revised Ordinances of 1902, and providing that the superintendent of buildings should have power to order the removal of any sign, billboard, or fence, when, in his opinion, it shall become dangerous or unsafe, and, in case of failure of the owner to remove on notice, the superintendent was authorized to remove the same and enter the premises to do so. This ordinance also provided that "no fence shall be erected over eight feet high." On September 5, 1903, a further ordinance was passed, giving the superintendent the power to order the repair or removal of any sign, billboard, or fence which in his opinion is, or is likely to become, dangerous or unsafe, or is erected or maintained in a manner contrary to the ordinances of the city, and to remove the same after notice. On failure of the owner to remove, the superintendent was authorized to do so, and to enter the premises for that purpose. This ordinance provided no penalty for its violation. Before the bill was filed, the defendant, as superintendent of buildings, served a written notice on complainant that he had erected and maintained a fence over eight feet high, "which is contrary to and in violation of the city ordinance," and notifying complainant to have said fence removed within five days, or that the ordinance would be enforced. The bill charges, and the answer admits, that the fence referred to in the notice is the fence in question, and that defendant, the superintendent of buildings, intends to remove the fence. The notice to the owner to remove did not demand the removal because the fence was unsafe or dangerous; but the answer and affidavits set up that it is dangerous and unsafe, not by reason of the unsafe character of the structure itself, but because of danger in case of fire in the vicinity. This allegation is fairly contested by the affidavits filed in rebuttal, and, so far as any right of removal is based on the ground that the fence is unsafe or dangerous on this account, it is admitted on the part of the defendant that complainant had a right to have the injunction retained until final hearing. The question mainly argued was the right of the superintendent to enjoin the removal of the fence on the ground that it was maintained contrary to the ordinance. The fence having been erected prior to the passage of any ordinance regulating the height of wooden fences, or any law authorizing such ordinances, the complainant has plainly the right to raise these questions in relation to the ordinance:
First, whether the fence is maintained in violation of the terms of any ordinance. The first ordinance (Rev. Ord. 1902), directing that "fences of wood shall not be erected over eight feet high," was prospective only, and so was the amendment of June 19, 1903, that "no fence shall be erected over eight feet high." The ordinance of September 5,1903, authorized the superintendent to remove any fence erected or maintained in a manner contrary to the ordinances of the city; but, as the previous ordinances did not in terms prohibit the maintenance of fences more than eight feet high already erected, the fence in question, apparently, was not maintained contrary to the ordinance. The general rule is that mere police legislation of this character operates only prospectively, and does not demand the sacrifice of existing physical property. Freund, Police Power, § 538; Buffalo v. Chadeayne, 134 N. Y. 163, 31 N. E. 443.
Second. The ordinance regulating the height of wooden fences was passed after the erection of the fence, and, the fence not being in itself a nuisance which required immediate abatement in the interest of public safety, the owner is entitled to test the validity of the ordinance as affecting his property, if it should be held to extend to the maintenance of an existing fence. Even a law requiring all frame buildings within certain limits to be taken down, or preventing their use, would probably be held unconstitutional. Id. The application of the ordinance, as well as its validity, if it be held to apply to complainant's fence, can be tested by a prosecution for penalties prescribed by the ordinance of 1902 (section 161) for its violation. The ex parte opinion of the superintendent of buildings that the maintenance of the fence is a violation of the ordinance is of no effect whatever as a judgment upon this question, and legislation giving it that effect would be unconstitutional. Hutton v. Camden (Err. & App. 1876) 39 N. J. Law, 122, 127, 23 Am. Rep. 203; Newark, etc., Horse Ry. Co. v. Hurt (Sup. Ct. 1888) 50 N. J. Law, 308, 314, 12 Atl. 697. The statute of 1903, authorizing ordinances regulating the height of fences, specially authorized also the recovery of penalties for their violation; and, in the absence of any claim on the part of the city that the immediate removal is necessary for public safety, it is doubtful whether there is any remedy for the removal of the fence, other than the enforcement of the penalty directed by the statute. Pending such suit for penalty, and where no immediate public interest forbids, the complainant would seem to be clearly entitled to restrain the invasion and destruction of his property. Where the proceedings of the municipality, under the police power, for the removal or dispossession by summary process, without trial of the right, are such as can be removed by certiorari, the summary proceedings will be set aside by the courts of law. Dawes v. Hightstown (Sup. Ct. 1883) 45 N. J. Law, 127, 129; Avis v. Vineland (1894) 56 N. J. Law, 476, 28 Atl. 1039, 23 L. R. A. 685. If the proceedings are not removable by certiorari, the owners' right to retain the status quo, where the question of right should be determined, has been protected by injunction. In Doughty v. Somerville, 33 N. J. Eq. 1, commissioners were enjoined from the summary removal of a fence in the absence of any proceedings to determine its alleged encroachment on a street. No ordinance had been passed specially directing its removal, and the commissioners were proceeding merely as ministerial officers. In Manko v. Chambersburg, 25 N. J. Eq. 168 (1874; Runyon, Ch.), there was a direction by the borough to the complainant to remove his buildings as an encroachment, and a threat on its part to remove if he did not. No ordinance or resolution specially directing the removal seems to have been passed. The removal was enjoined pending the trial of the right in the action itself. On a subsequent trial of the right at law, it was held that the borough had no right to the removal. Chambersburg v. Manko (Err. & App. 1877) 39 N. J. Law, 496. In Tainter v. Morristown (1868) 19 N. J. Eq. 46, 58, the destruction of fences, shade trees, and shrubbery was said to be an irreparable injury, which complainant was entitled to enjoin, if unauthorized.
At the argument I suggested to counsel that a certiorari of the ordinance, which would operate as a stay, might suspend the action of the superintendent pending the decision of the question, and that this application to a court of law might be first made. But the ordinance itself is general, and does not specially apply to the complainant, and may be valid as against other persons who have erected fences since its passage; and it seems to be settled by the later cases at law that its validity on certiorari cannot be contested by complainant until judgment for penalties for its violation is obtained against him. Penna. R. R. Co. v. Jersey City (Err. & App. 1888) 47 N. J. Law, 286, 289; Gas Light Co. v. Rahway (Sup. Ct. 1896) 58 N. J. Law, 510, 511, 34 Atl. 3. The reason is that ordinances which are general, and not necessarily unreasonable or invalid in toto as to all persons affected by them, cannot be set aside altogether, which is the effect of a judgment against its validity on certiorari; and if the ordinance is invalid to a limited extent, and only against the prosecutor and others similarly entitled, the method for testing its validity is by objecting to the validity of the ordinance as against them in the penal suits brought for violation. The earlier cases, and also Morgan v. Orange (1888) 50 N. J. Law, 389, 13 Atl. 240, referred to by defendant's counsel, sustaining the writ of certiorari to such general ordinance before or without judgment in penal suits, have been said to be overruled by these later cases. Hamblet v. Asbury Park (Sup. Ct. 1898) 61 N. J. Law, 502, 39 Atl. 1022. The ordinances in question cannot (I think) be said to be certainly and necessarily unreasonable or invalid as to fences subsequently erected, and could not, therefore, under the above cases, be set aside on certiorari removing the ordinances, even if invalid as against complainant. The other cases on certiorari to ordinances speciallyaffecting property, referred to by the counsel for the city, are cases where the ordinances on their face affected the property the prosecutor was proved to own, or rights he was entitled to enjoy, and were set aside altogether. Outside of the general ordinances in this case, referring apparently to fences thereafter erected, there is no record or proceeding which the certiorari could remove. The notice by the superintendent is a mere ministerial act, and I know of no case at law which makes such mere ministerial proceedings the subject of judicial inquiry by certiorari.
Manifestly the only ground of relief to complainant is the intention of the officer, admitted by the answer, to execute the notice and remove complainant's property under a claim of right. Such threat and claim is, in the absence of a remedy at law, ground for an injunction pending hearing, if the right of complainant is one of a character which requires it. The fence in question is a structure erected by complainant on his own lands, and is maintained in connection with the use and enjoyment of his dwelling houses erected on the lots. Rights of this character are constantly protected by injunction, and the propriety of an injunction, if there was no relief by certiorari, was not contested at the argument. The removal is threatened by a public officer of the city, claiming the right to destroy property of a private owner under authority given to him by an ordinance of the city. Whether he has such authority, is at least doubtful, and as against a municipality exceeding its statutory powers, by a destruction of property of this character used in connection with dwellings, the owner is entitled to have the question of right tried, either in this court or at law, and in the meantime to have the present status maintained. As an injunction pending determination is the only method of securing this status, he is entitled to an injunction until final hearing. Whether on the final hearing the question of the application and validity of the ordinance will be finally determined, or the cause be directed to stand over pending determination by proper proceedings at law, is not now decided.
Complainant should, I think, before final hearing, make the city a party defendant, in order that the city may formally adopt or repudiate the action of the defendant under the ordinance.