RITCHIE
v.
CITY OF HAMTRAMCK.
Docket No. 20, Calendar No. 45,930.
Supreme Court of Michigan.
Decided September 8, 1954.Harry J. Lippman (John G. Cross, of counsel), for plaintiff.
Chester C. Pierce and Stanley J. Draganski, for defendants.
KELLY, J.
Plaintiff filed her bill of complaint against defendants herein praying for an injunction and an accounting for damages and that the court decree all health ordinances or health code and/or the building code of the city of Hamtramck, unconstitutional insofar as the same are invoked against plaintiff by said defendants.
*286 The court, upon motion of defendants, dismissed the bill of complaint, stating that the plaintiff "would have an adequate remedy at law and equity will not interfere with the enforcement of a city ordinance, where adequate relief may be obtained, as in this particular instance, in a contemplated prosecution for the violation thereof."
The bill alleged that plaintiff was notified by the department of building and safety engineering of the city of Hamtrack that:
"You must vacate tenants from third floor and refrain from using third floor for living quarters in the future.
"You must remove all plumbing and electrical installations including fixtures from said third floor.
"You must dismantle all partition walls including studding and restore attic for use as storage space only."
Further, that she was notified by the bureau of sanitation that:
"You are hereby notified and warned to place said premises in a clean and sanitary condition by vacating tenants from attic.
"If this notice is not complied with within 10 days after date, you will be prosecuted to the full extent of the law."
And that the fire prevention bureau also notified her to:
"Obtain a fuel oil permit from the department of building and safety engineering, 2301 Roosevelt.
"Put in a clean out door in the chimney."
In her bill plaintiff also alleged that for 40 years she has been the owner of premises located at 2996 Roosevelt avenue, Hamtramck, and that more than 30 years ago she converted the third floor of said premises into a 2-room apartment, and has rented *287 said apartment for the past 30 years; that she is maintaining the premises "in a healthy, sanitary and safe condition, she having in said premises by reason of the passing years, a vested right to maintain said premises in their present state of repair."
In Osborn v. Charlevoix Circuit Judge, 114 Mich. 655, it is stated that (pp 666, 667):
"It is a general rule that criminal prosecutions cannot be restrained by injunction. Once have it understood that they may be, and the public would labor under additional embarrassment to the already great obstacles to the prevention of crime."
A headnote in the same case reads:
"Courts of chancery should not enjoin criminal prosecutions on the theory that the law under which they are brought is unconstitutional, as such fact is available at law by way of defense to the criminal charge."
An exception to this general rule was made in Michigan Salt Works v. Baird, 173 Mich. 655. This Court allowed an injunction to restrain the enforcement of the salt inspection act, and said (pp 660, 662):
"As we understand the position of the complainant, it is not contended that equity has jurisdiction, as a general rule, to restrain criminal prosecutions, nor is it contended that an equitable proceeding is proper merely for the purpose of determining the constitutionality of an act of the legislature. It is contended, however, that this bill of complaint sets out other grounds for equitable relief than simply the restraining criminal prosecutions as appears from what we have already stated, and that the averments of the bill of complaint are sufficient to clothe the court with jurisdiction, and, having jurisdiction, the court will retain the cause, and, if necessary to meet the ends of justice, will determine the constitutionality *288 of the act of which complaint is made. There can be no question that the general rule is as stated in Osborn v. Charlevoix Circuit Judge, supra. * * *
"While the general rule is as above stated, we think it is established, by the weight of authority, that in certain classes of cases, of which the one at bar is a good example, equity will take jurisdiction. * * * Equity has jurisdiction to interfere, by injunction, in a case where public officials are proceeding illegally and improperly under claim of right, where it is alleged, as in the instant case, that the complainant thereby suffers irreparable injury."
This Court has recognized the jurisdiction of a court of chancery to grant injunctive relief where a constitutional question is involved because the municipal authorities do not have the power to declare the ordinance unconstitutional and void. In Long v. City of Highland Park, 329 Mich. 146, we said (p 149):
"Appellant claims that equity does not have jurisdiction where the plaintiffs had not exhausted their remedy under the provisions of the zoning ordinance by applying for a building permit, seeking relief from the board of zoning appeals, the zoning commission, and the common council of the city. There is no merit in the claim. Plaintiffs do not here seek, nor have they asked the city for a building permit, to erect a building for any particular use. The municipal authorities referred to do not have the power to declare the ordinance unconstitutional and void as applied to plaintiffs' property and they could not grant the relief here sought. An attempt by them to do so, which in effect would result in a violation of the ordinance, would have been ineffective."
In Austin v. Older, 278 Mich. 518, a petition for writ of certiorari to review decisions of the city engineer and the board of appeals was dismissed, this Court stating (p 521):
*289 "The statute providing for an appeal to the board accorded plaintiff all the remedy allowable unless the validity of the ordinance was to be questioned, and then the board could not pass upon that question, nor the court in the proceeding at bar.
"If plaintiff considers the ordinance in conflict with constitutional provisions then the attack must be made in a direct proceeding to have judicial determination of that question and it cannot be had under certiorari to review the action of the administrative officers."
Appellant does not challenge the validity or constitutionality of the ordinances in their entirety, but only as same are applied to appellant's property. The right to challenge only as same applies to individual property was recognized in Redford Moving & Storage Company v. City of Detroit, 336 Mich. 702. Plaintiff filed a bill against the city of Detroit to restrain enforcement of ordinance with reference to its property. This Court said (p 709):
"It is further urged on behalf of the city that the court should not interfere with the discretion of the board of zoning appeals, and that plaintiff may not claim benefits under the ordinance and at the same time assail its validity. As above pointed out, however, the reasonableness of the application of a zoning ordinance to a particular parcel of land is subject to judicial review. In the instant case plaintiff does not question the legality of ordinance 171-D in its entirety, but contends that the manner of application thereof to its property is unreasonable and unlawful. The trial judge, in deciding the controversy, so found, and we are in accord with such conclusion. Long v. City of Highland Park, supra; Hitchman v. Township of Oakland, 329 Mich. 331."
The bill of complaint in the instant case sets forth grounds for equitable relief other than the restraining of criminal proceedings. It involves the right *290 of the defendants to invoke the provisions of the building code and thereby order the appellant to "remove all plumbing and electrical installations including fixtures from said third floor," and to "refrain from using said third floor for living quarters in the future." Plaintiff also alleges that the defendants, as public officials, are proceeding illegally and improperly under claim of right and thereby causing her to suffer irreparable injury. The bill also challenges the reasonableness of the threatened action by the defendants against appellant.
On defendants' motion to dismiss, well-pleaded facts in the bill of complaint must be accepted as true. Witt v. Tourn-A-Grip Co., 330 Mich. 151.
The order of the lower court dismissing plaintiff's bill of complaint is set aside and the cause remanded for a hearing on the merits. Costs to appellant.
BUTZEL, C.J., and CARR, BUSHNELL, SHARPE, BOYLES, REID, and DETHMERS, JJ., concurred.