
    SHOEMAKER v. ENTWISLE.
    Appealable Orders; Building Regulations; Equity Jurisdiction ; Injunctions.
    1. An appeal will not lie from an order discharging a restraining order and refusing an injunction pendente lite.
    
    2. Upon an information filed in the Police Court by the building inspector against a property owner who refuses to comply with a notice from the inspector to tear down a wall held by him to be dangerous, while the notice of the inspector may be prima facie evidence of the dangerous character of the wall, his judgment is open to revision by that court, and the defendant is entitled to controvert that evidence.
    3. A court of equity has no authority to enjoin the building inspector from taking such proceedings in the Police Court against a property owner.
    No. 246.
    Submitted April 17, 1894.
    Decided May 7, 1894.
    Hearing on an appeal by the complainant from an order of an equity term of the Supreme Court of the District of Columbia, discharging a restraining order and refusing an injunction.
    
      Appeal dismissed.
    
    The Court in its opinion stated the case as follows:
    This is a suit in equity to enjoin the inspector of buildings for the District of Columbia from proceeding in the Police Court of the District to enforce a penalty against the complainant, Elizabeth' R. Shoemaker, who is the appellant here, for failure to remove a wall on her premises alleged by him to be dangerous.
    It seems that, upwards of thirty years ago, one John H. McCutchen, being the owner of a lot of ground in square 423, in the city of Washington, fronting 33 feet and 6 or 8 inches on Seventh street northwest, erected thereon two small brick houses contiguous to each other and separated only by a dividing wall used in common for both houses. By conveyance from him, either mediately or immediately, the appellant, Elizabeth R. Shoemaker, in 1877, became the owner of part of the lot, described by metes and bounds as being 16 feet and 8 inches front and one hundred feet in depth, with the house upon it, designated as No. 1332 Seventh street. This was the north part of the lot. Mc-Cutchen, also — at what time does not appear — sold the south part of the lot and conveyed it by metes and bounds, which, however, are not stated in the bill of complaint, together with the house upon it, designated as No. 1330 Seventh street. And in the year 1892, under chancery proceedings, in pursuance of which this south part of the lot, therein described as being 16 feet and 10 inches front on Seventh street was again sold, Sarah Moore and Elizabeth Moore became the purchasers and owners of it. These purchasers thereupon proceeded to tear down this building No. 1330, with the purpose of erecting a larger structure upon the premises more suited to the growing prosperity of the section of the city in which it was located. When the work of demolition had been completed and that of construction commenced, the owners, Sarah Moore and Elizabeth Moore, were notified by the inspector of buildings of the District of Columbia, the defendant and appellee in this case, that the wall which had constituted the dividing wall1 between No. 1330 and No. 1332 was unfit for the purpose of being used for the new building proposed to be erected at No. 1330, and insufficient for such a building. The notice proceeded upon the theory that the wall was a party wall, as it is called, erected equally on the lands of the adjoining owners; and the inspector directed that the wall should be taken down and rebuilt of the thickness required for the new building. It was soon afterwards discovered by actual survey that the wall was not a party wall, as that term is generally understood; but that it was constructed entirely on the land of Mrs. Shoemaker, the owner of premises No. 1332, and stood either two or four inches away from the dividing line, and nowhere touched the land of Sarah Moore and Elizabeth Moore.
    
      Thereupon the inspector of buildings, referring to his previous notice and his mistaken impression that the wall was a party wall, now notified Mrs. Shoemaker to remove the wall within thirty days as being a dangerous wall, and directed her to rebuild it, when she did rebuild, as a party wall standing equally on both lots, in pursuance of his understanding of the requirements of the law. After some delay and negotiation, the order was renewed upwards of three months afterwards; and Mrs. Shoemaker was then notified that, upon her failure to comply with the order within thirty days, the case would be placed in the hands of the attorney for the District of Columbia for prosecution. She was also told in the notice that if she was dissatisfied with the order of condemnation she might within forty-eight hours prosecute the appeal allowed by the building regulations. This right of appeal, it seems, was to the Commissioners of the District of Columbia, who were to appoint a commission to determine the question at issue, which commission should consist of two builders and one architect; and as a preliminary condition to the exercise of the right of appeal, the owner of the property was required to deposit thirty dollars to cover the costs of the commission.
    Mrs. Shoemaker did not comply with this notice; and soon after the lapse of the thirty days provided in it for taking down the wall, an information was filed against her in the Police Court of the District of Columbia, to recover the penalty provided in the building regulations of the District, which penalty was a fine of not less than ten nor more than one thousand dollars, with a further forfeiture of one hundred dollars a day for each and every day after conviction in that court during which the dangerous structure should be maintained.
    Thereupon she instituted the present suit in equity in the Supreme Court of the District of Columbia against Thomas B. Entwisle, the inspector of buildings, to enjoin the proceedings in the Police Court, and for an examination to be had and testimony to be taken as to the correctness of his statements with reference to the dangerous character of the wall in question, as well as for general relief. In the bill of complaint she alleged that the wall was entirely upon her own property, and belonged exclusively to her; that it was not defective or dangerous, but on the contrary was amply sufficient for the support of the complainant’s building; that the complainant would not be permitted to show this in the Police Court, but would be concluded in that court by the decision of the inspector of buildings as a finality; and that it would be contended in that court, probably with success, that the only issue there to be tried would be the question of compliance or non-compliance with the inspector’s order; and from the judgment of that court there would be no appeal. In support of the bill several affidavits were filed to show that the wall was not dangerous, but was sufficient to support the complainant’s building upon it, although perhaps insufficient to support in addition thereto any such new structure as was contemplated by the adjacent owners under the theory that it was a party wall.
    An answer to the bill was filed by the defendant Entwisle, substantially admitting its allegations except as to the character of the wall, which he claimed to be dangerous, although the averment of danger would seem to be based upon the proposition merely of its insufficiency as a party wall for the contemplated new structure, and not upon any supposed insufficiency for the purposes of the complainant; and the answer also was supported by affidavits.
    A preliminary restraining order was issued on the filing of the bill. When the answer came 'in, the defendant moved for the discharge of this restraining order.
    This motion was allowed; the restraining order was discharged; and the injunction prayed for by complainant, presumably an injunction pendente lite, was refused. From the action of the court below the present appeal has been prosecuted. ,
    
      Mr. Henry Wise Garnett and Mr. Henry P. Blair for the appellant.
    
      
      Mr. S. T. Thomas, Attorney for the District of Columbia, and Mr. A. B. Duvall, Asst. Attorney, for the appellee.
   Mr. Justice Morris

delivered the opinion of the Court:

There has been no final action upon the bill of complaint. That bill has not been dismissed. The cause has never been set down for hearing upon its merits. And while the substantial relief prayed for is an injunction against the inspector ol buildings, the order appealed from is a purely interlocutory order.

It is plain from the statement of the case that the present appeal is wholly untenable and must be dismissed. If it was desired to present the appeal to this court in proper form, at least a formal order should have been made dismissing the bill, so that there might be some apparent element of finality in the action of the court. It is almost an elementary proposition of equity jurisprudence that, in the absence of special statutory provision, an appeal will not lie from an order discharging a restraining order and refusing an injunction pendente lite.

But we do not wish to dispose of this case on purely technical grounds of this character. There is enough in the case to warrant an expression of the opinion of the court on some of the substantial questions of law involved in it.

The main contention of the appellant, and one of the counsel for the appellee acquiesces in the justice of this contention, is that the Police Court of the District of Columbia, upon the information filed against the appellant in that court, is confined in its inquiry to the question whether the appellant has violated a municipal ordinance by refusing to obey a notice from the inspector of buildings, and that there can be no inquiry into the propriety of that notice. It is assumed on behalf of the appellant that in the Police Court the judgment of the inspector of buildings is final and conclusive; and it is argued, at least by one of the counsel for the appellee, that the inspector’s judgment must be regarded as final and conclusive by every court except the commission provided for in the building regulations; and that it is not open to revision in any tribunal whatever.

We cannot yield our assent to any such dangerous doctrine as this. While police regulations that are evidently intended to secure the public safety, should be upheld as far as possible in the interest of the public, it cannot be that the most solemn constitutional safeguards of the rights of private property can be subjected to the final arbitrament, to the caprice perhaps, of a petty municipal officer, without any opportunity to the owner of such property to be heard in defense of his rights in accordance with the usages and the established rules of law. The highest legislative power in the land cannot deprive the citizen of his rights of property except by due process of law; it is hard to believe that, through the instrumentality of a municipal ordinance, the power so to do has been invested in an inspector of buildings.

Undoubtedly, there are cases where summary power may properly be vested for special purposes even in subordinate officials. The threatened spread of conflagration may justify the demolition of property in the probable pathway of the flames. It is proper to seek to prevent the threatened spread of contagious or infectious diseases by the destruction of infected clothing, and by quarantine regulations that sometimes very seriously interfere with the rights of personal liberty. There is no more dangerous thing to a populous or crowded city than insecure buildings or toppling walls; and it is proper that summary power to remove the danger should be vested in the public authorities, to be exercised through subordinate officials. Salus populi suprema lex— the public safety is the supreme law — is the maxim that governs in' such cases; and it is not only the right, but it may be the duty, of those charged with the supervision of such matters to act promptly and summarily in the discharge of their official functions. But while in all such cases the presence of danger and an honest apprehension of peril will excuse the person who assumes to conserve the public safety against impending disaster, yet in every instance he proceeds at his peril. In every instance he renders himself liable to suit; and in every instance he must respond in damages to any person injured by his action, if the action was unjustified by the circumstances of the case. See Cooley on Constitutional Limitations, Ch. XVI, where the leading cases on the subject are collected.

Now if this be so in cases where danger is apparent and disaster imminent, and where the action, if there is to be effective action at all, must be immediate and summary, can it be claimed with any show of reason that, in cases where the danger is remote and perhaps entirely contingent, as in the present instance, the action ex parte of a municipal officer which deprives the citizen of his sacred right to the free use and enjoyment of his own property, is entitled to total immunity from judicial investigation and judicial scrutiny? A more palpable violation of our constitutional safeguards cannot well be imagined than is involved in the- construction which is sought to be here maintained of the power supposed to be vested in the inspector of buildings. There is no such power vested in that officer. There is no municipal ordinance that seeks to give him any such power. And there is no legislative enactment that assumes in the remotest degree to warrant the exercise of any such power. The authority vested in the inspector, it is true, is summary; and he is justified in forming his own judgment entirely ex parte and without any hearing of the party whose interests are involved. But if that party dissents from the conclusions of the inspector, he is entitled to have his rights adjudicated in a court of law, according to the recognized modes of courts of law.

It is not seriously contended that the right of appeal from the judgment of the inspector given by the building regulations would afford to the .owner of property the judicial investigation of his rights to which he is entitled; and that feature of the case may be entirely dismissed from our consideration.

We are of opinion that the Police Court of the District of Columbia, to which has been committed by the legislative power the right to adjudicate upon the forfeiture claimed from this appellant, has full, power to determine all the issues that it has been sought to raise by this bill in equity. It is not only the right, it is likewise the duty, of that court to determine judicially the questions at issue between the- appellant and the inspector of buildings, or between the appellant and the District of Columbia, whose agent the inspector is. It may possibly be that the notice of the inspector should be taken as prima facie evidence of the insecure and dangerous character of the wall in question; but it can be no more than prima facie evidence. The appellant is entitled to controvert that evidence; and it will be the duty of the court in this, as in other cases, to give judgment according to the preponderance of evidence. That court should not enforce the penalty prescribed by the building regulations except upon testimony tending to show that the wall in question is in fact insecure and dangerous, and not merely because the inspector of buildings has said that it was so. That court, too, has authority to investigate the question of the ownership of the wall and of the extent of the easement, if any, of the adjacent owner therein, so far as that question may enter into the liability of the appellant for the penalty which it is sought to impose upon her.

So holding, we must hold further that , a court of equity has no jurisdiction in the premises to grant the relief prayed for by the appellant. If the jurisdiction of a court of equity could be- upheld in this case, it would nullify all attempts to enforce the municipal ordinances of the District of Columbia, and take away from the court especially created for that purpose the authority conferred upon it by Congress to pass upon such ordinances and questions of their violation. A court of equity cannot be substituted for the Police Court in this case; and, as we have seen, there is no necessity for the substitution.

It is our conclusion that the appeal in this case should be dismissed, with costs to the appellee ; and it is accordingly so ordered.  