
    Philip N. Jackson v. Leslie B. Miller, superintendent of buildings of the city of Newark.
    [Decided April 26th, 1905.]
    The owner of land in a city, having erected thereon a fence more than eight feet high before aDy ordinance had been passed prohibiting such fences, is entitled to a preliminary injunction restraining- the city- superintendent of buildings (pending final hearing-) from removing the fence on the ground that it was erected in violation of the ordinance, since certiorari would not lie to review the mere determination of the superintendent of buildings; nor would it lie to review the ordinance in question which applied only to fences subsequently erected.
    On application for preliminary injunction. Heard on bill and affidavits and answer and affidavits.
    
      Mr. Neilson Abed, for the complainant.
    
      Mr. Malcolm MacLear, for the defendant.
   Emery, Y. C.

Complainant in 1900 erected a wooden fence twenty feet high on the rear of his lots located on Waverly avenue, in the city of Newark. Two dwelling-houses are erected on the front of the lots and within about twenty-fire 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 (Bevision of 1902), adopted January 3d, 1902, by section 100 (p. SI) included the premises within- the fire limits, and provided (p. S3 § 103) 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, subdivision c (p. 67), it was provided that “fences of wood shall not be erected over eight feet high,” and section 161 of the revised ordinances of 1902 (p. 98) provided a penalty of $50 for each violation or failure to comply with any provision of tire ordinance for a first conviction and a fine of $25 for each day’s continuance pf 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 8th, 1903, a law was passed (P. L. 1908 p. 518) 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 19th, 1903, an ordinance was passed amending section 105, subdivision c, of the revised ordinances of 1902, and provided 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 tire same and enter the premises to do so. This ordinance also provided that “no fence shall be erected over eight feet high.” On September 5th, 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 lire in the vicinity. This allegation is fairly contested by the affidavits filed in rebuttal, aaid 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 has 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 (revised ordinances 1902) directing that “fences of wood shall not be- erected over eight feet high,” was prospective only, and so was the amendment of June 19th, 1903, that “no fence shall be erected over eight feet high.” The ordinance of September 5th, 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.

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. Freund Police Power § 538; Buffalo v. Chadeayne, 134 N. Y. 163. 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 legisla-, tion giving it that effect would be unconstitutional. Hutton, v. Camden, 39 N. J. Law (10 Vr.) 122, 127 (Court of Errors and Appeals, 1876); Newark, &c., Horse Railway Co. v. Hunt, 50 N. J. Law (21 Vr.) 308, 314 (Supreme Court, 1888). 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 th.e 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 Ms 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, 45 N. J. Law (16 Vr.) 127, 129 (Supreme Court, 1883); Avis v. Vineland, 56 N. J. Law (27 Vr.) 474 (1894). If the proceedings are not removable by certiorari, the owner’s 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. (6 Stew.) 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 heen passed specially directing its removal, and the commissioners were proceeding merely as ministerial officers. In Manko v. Chambersburg, 25 N. J. Eq. (10 C. E. Gr.) 168 (1874) (Runyon, Chancellor), 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, 39 N. J. Law (10 Vr.) 496 (Court of Errors and Appeals, 1877). In Tainter v. Morristown, 19 N. J. Eq. (4 C. E. Gr.) 46, 58 (Zabriskie, 1868), 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 stajq might suspend the action of the superintendent pending the decision of the question, and that tills 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. Pennsylvania Railroad Co. v. Jersey City, 47 N. J. Law (18 Vr.) 286, 289 (Court of Errors and Appeals, 1888); Gas Light Co. v. Rahway, 58 N. J. Law (29 Vr.) 510, 511 (Supreme Court, 1896). The reason is that ordinances which are general and not necessarily unreasonable or invalid in ioio as to all persons affected by them cannot be set aside altogether, which is the effect of a judgment against its validitjr 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, 50 N. J. Law (21 Vr.) 889 (1888), referred to by defendant's counsel, sustaining the writ of certiorari to such general ordinance before or without judgments in penal suits, have been said to be overruled by these later cases. Hamblet v. Asbury Park, 61 N. J. Law (32 Vr.) 502 (Supreme Court, 1898). 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 specially affecting 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 ease 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.  