President of Waupun v. Moore

34 Wis. 450

• Court: Wisconsin Supreme Court
• Decided: January 15, 1874
• Status: Published

Opinion

LyoN, J.

The jurisdiction of courts of equity, in proper cases, to restrain the erection or maintenance of nuisances, public or private, is undoubted. But the defendant was not about to erect a nuisance. If it is unlawful for him to erect the building in question, it is made so by the ordinance alone. Without the ordinance, no one can successfully dispute his right to do so. The question is, therefore, Will a court of equity enjoin an act which would otherwise be lawful, but which is made unlawful by a village ordinance or by-law ?

We find the principle stated in several very respectable authorities, that equity will not lend its aid to enforce by injunction the by-laws or ordinances of a municipal corporation, restraining an act, unless the act is shown to be a nuisance per se. High on Injunctions, § 788 ; Mayor, etc., of Hudson v. Thorne, 7 Paige, 261; Phillips v. Allen, 44 Pa. St., 481; Eden on Injunctions, 160; Schuster v. Metropolitan Board of Health, 49 Barb., 450; Grant on Corporations, 84 (78 Law Library, 94).

None of the cases to which we have been referred by the counsel for the plaintiffs holds that an injunction can properly issue under such circumstances, and we have been unable to find a case bolding that doctrine. To bold that an injunction can properly issue in this case, would be to overturn all of the authorities on the subject, and to interpolate into the law a new rule or principle of equity jurisprudence. This we have no right or authority to do. We may not make the law, but only declare it as we find it. We must hold, therefore, that, under the averments of the complaint, no injunction can properly be issued to restrain the defendant from proceeding with the erection of his building, and that the village authorities can only resort to their legal remedies in that behalf. The provision in the ordinance directing the board to proceed by injunction in such cases, cannot operate to extend the jurisdiction of a court of equity. We do not decide whether the village board, had power, under the village charter, to pass the ordinance in question, but have disposed of the case on the hypothesis that the charter confers such power on the board. Neither do we decide whether, in case the action could be maintained, it was properly brought by the president and trustees of the village.

The order denying the motion to dissolve the injunction must be reversed, and the cause remanded for further proceedings according to law.

By the Oourt.— So ordered.