[Port of Mobile v. Louisville & Nashville R. R. Co.] 207. But the cases are numerous in which the arm of this court has been successfully invoked to enjoin trespasses, which, if unrestrained, would probably result in irreparable mischief, or where such mischief might be completely effected before a trial at law could be had as to the controverted right. Judge Story thus states the rule: "If the trespass be fugitive and temporary, and adequate compensation can be obtained in an action at law, there is no ground to justify the interposition of courts of equity. Formerly, indeed, they were extremely reluctant to interfere at all, even in regard to repeated trespasses. But now there is not the slightest hesitation, if the acts done or threatened to be done to the property would be ruinous or irreparable, or would impair the just enjoyment of the property in future. If, indeed,” he concludes, "courts of equity did not interfere in cases of this sort, there would be a great failure of justice in this country. 2 Story's Eq. Jurisp. § 928. The Chancery Court of England had come up to this advanced view of the law as early as the days of Lord Hardwick.--Coulson v. White, 3 Atk. 21. And this view is now supported by an unbroken array of uniform authorities, speaking with one voice on the subject. Jerome v. Ross, 7 Johns. Ch. 315; s. c., 11 Amer. Dec. 484, note, 498-507; Lyon v. Hunt, 11 Ala. 295; s. c., 46 Amer. Dec. 216; Scudder v. Trenton, &c., Co., 23 Amer. Dec. 756; Poindexter v. Henderson, 12 Amer. Dec. 550; Burnley v. Cook, 13 Texas, 586; s. c., 65 Amer. Dec. 79; White v. Flannigain, 1 Md. 525; s. c., 54 Amer. Dec. 668. The case of Osborn v. U. S. Bank, 9 Wheat. 738, is a familiar and high authority, from one of the greatest judges, for the position that where a trespass, or a series of trespasses operate in effect to destroy or seriously impair the exercise of a franchise, a court of equity will not hesitate to interpose to prevent the apprehended injury by the aid of injunction. And in Broadway Stage Co. v. The Amer. Society, &c., 15 Abb. Pr. (N. S.) 51, it is expressly held that an injunction would lie to restrain the persistent commission of trespasses of a mere personal nature, where they affect a corporate franchise. And the same principle has been recognized by this court in a case where it was sought to enjoin the enforcement of a municipal ordinance, the violation of which was attended with a penalty.-Moses v. Mayor, &c., of Mobile, 52 Ala. 198.

The equity of the present bill can be supported upon the ground that the court will lend its aid to prevent the destruc

[Port of Mobile v. Louisville & Nashville R. R. Co.] tion or serious impairment of a vested franchise, the value of which can not be adequately estimated in damages. The case is strengthened by the further consideration of preventing expensive and vexatious litigation accompanied by a multiplicity of suits, and the insolvency of the defendants, by whom the alleged grievances are threatened,-facts which strongly corrobate the alleged inadequacy of any legal remedy open to the complainant in the courts of law. The records of our courts present few cases of threatened injury so irreparable in nature, or for which a verdict of damages at law would furnish so inadequate compensation.—Jerome v. Ross, 11 Amer. Dec. 484, note, p. 500-507.

7. The suggestion that the court, under the peculiar circumstances of this case, must abdicate this jurisdiction because of the fact that it is dealing with an ordinance of a municipal corporation of a quasi criminal character, the violation of which is made an offense, does not strike us favorably. The power to prevent irreparable injury, flowing from the deficiencies and injustice of the more tenchnical rules of the common law, may be said to be the very life of equity jurisdiction. The court must, therefore, be jealous of its preservation, notwithstanding it may also be cautious in its exercise. Municipal corporations can claim no exemption from being subjected to it. They must stand in our courts upon terms of equality with all other corporations, and with natural persons. Our constitution declares that "all corporations shall have the right to sue, and shall be subject to be sued in all courts, in like cases as natural persons." Const. 1875, art. 14, § 12. The legal effect of this provision is to place municipal corporations, as nearly as practicable, upon a basis of equality in the enforcement and defense of their rights in courts of justice in this State."-South & North Ala. R. R. Co. v. Morris, 65 Ala. 193; Davis v. Mayor, 1 Duer (N. Y.) 452. And the rule accordingly must apply with peculiar force with us, which is said by Mr. Dillon to be generally recognized elsewhere, that "equity will interfere in favor of or against municipal corporations on the same principles by which it is guided in other cases."—2 Dillon Munic. Corp. § 908.

It can not be tolerated that a municipal corporation in view of these principles, should escape the grasp of a court of chancery, in a clear case of equitable cognizance, by the device of adding a penalty to an illegal and void ordinance, which is designed as a repudiation of its own valid grants

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[Forcheimer & Co. v. Port of Mobile |

or contracts, especially in a case where the public are largely concerned, and a court of law can afford no remedy adequate for the prevention of irreparable injury that would probably result from the enforcement of such an ordinance.

There is nothing in the case of Burnett v. Craig, 30 Ala. 135; s. c. 68 Amer. Dec. 115, which is in conflict with the foregoing views, as will appear from the later case of Moses v. Mayor, &c. of Mobile, 52 Ala. 198. The mere fact that an act is criminal does not divest the jurisdiction of equity to prevent it by injunction, if it be also a violation of property rights, and the party aggrieved has no other adequate remedy for the prevention of the irreparable injury which will result from the failure or inability of a court of law to redress such rights.-1 High on Injunc. § 20; Mayor &c. of Baltimore v. Radecke, 49 Md. 217; s. c. 33 Amer. Rep. 239; Third Are. R. R. Co. v. New York, 54 New York, 159; Mayor &c. of Mobile v. Waring, 41 Ala. 139; s. c. 8 Wall.


The decree of the chancellor, refusing to dismiss the bill for alleged want of equity, and refusing to dissolve the injunction, is in harmony with the foregoing views, and must be affirmed.

Forcheimer & Co, v. Port of Mobile.
Bill in Equity to Enjoin Enforcement of Municipal Ordi-


1. Injunction of enforcement of municipal ordinance.-A court of equity will not interfere by injunction at the instance of an individual seeking to restrain the enforcement of a municipal ordinance, no question as to the protection of a franchise as to him being involved, no irreparable damage to him being threatened, and the invalidity of the ordinance not having been established at law.

APPEAL from Chancery Court of Mobile!

Heard before the Hon. THOMAS W. COLEMAN.

Complainants, and appellants, who are wholesale merchants and warehousemen in the Port of Mobile, and do business on and near the street upon which the railroad track runs, sought to enjoin the enforcement of a municipal ordinance prohibiting the loading and unloading of cars in

[City Council of Montgomery v. Louisville & Nashville R. R. Co.| the public streets of Mobile. The ordinance is that discussed in the case of the Port of Mobile v. L. & N. R. R. Co. just preceding this, and in which at the suit of the R. R. Co., enforcement thereof was enjoined.

OVERALL & BESTOR, for appellant.

R. H. CLARKE, contra.

SOMERVILLE, J.-Under the principles settled in The Port of Mobile v. The Louisville & Nashhille Railroad Co., decided at the present term, and the case of Burnett v. Craig, 30 Ala. 135; s. c. 68 Amer. Dec. 115, the facts stated in the complainants bill do not present a case of irreparable damage threatened by the enforcement of the municipal ordinance sought to be enjoined, and no question being involved as to the protection of a franchise, the decree of the chancellor must be affirmed. Before the injunctive aid of a chancery court can be successfully invoked in this case, the complainants must first establish the invalidity of the ordinance in question by judgment of a court of law. Their remedy at law is not shown to be inadequate. Affirmed.

City Council of Montgomery v. Louisville and Nashville R. R. Co.

Bill in Equity to Enjoin Enforcement of Municipal Ordi


1. Injunction against enforcement of municipal ordinance, as violating rights of railroad company.-A railroad company, being required by statute to provide suitable depot accommodations for the travelling public, may maintain a bill in equity against the authorities of a municipal corporation, to restrain and enjoin their interference with the erection or enlargement of necessary depot buildings, either when the municipal ordinance under which they claim the right to interfere is void, or when the complainant's structure is not within its terms.

2. Wooden buildings and structures within fire limits, under ordinance and charter of city of Montgomery.-The ordinance of the city of Montgomery which prohibits any person to "build any wooden house, shed, or other structure of wood, within the fire limits, or to repair with wood or other combustible material the roof of any building within the fire limits, or enlarge or elevate a wooden building of any kind within the fire limits," does not apply to the extension or enlargement

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[City Council of Montgomery v. Louisville & Nashville R. R. Co.] of a brick depot building by an addition at one end, two stories high, constructed of wooden frame-work, resting on brick pillars, and covered on the outside with corrugated iron. But, whether the city authorities might not, under the powers granted by the charter, prohibit the erection of such structure within the fire limits, is not decided.

APPEAL from Montgomery Chancery Court.

Heard before Hon. JNO. A. FOSTER.

The Louisville and Nashville Railroad Company, operating the South and North Alabama Railroad Company, and in charge of the Union Passenger depot of the last named company in the city of Montgomery, undertook to make an addition, demanded by public convenience, and necessary for the business of said companies, to said Union depot, which depot is a brick building and within the fire limits of said city of Montgomery. This addition, one side of which was an end side of said depot, was to be thirty by forty-two feet long and wide and twenty-four feet high; cased on the outside with corrugated iron, and covered on top with sheetiron roofing; the structure to rest upon a solid brick foundation three or four feet deep and raised several inches above the ground; the wood to be used was to be pieces of studding fourteen inches apart, a sill resting on the brick foundation, and a plate at the top, with floors in the lower and upper story and a stair way. The doors, sashes and blinds were to be of wood, as is usual in all buildings. The addition was to be plastered on the inside. While engaged in the erection of this structure the workmen were stopped, and the railroad superintendent was arrested and fined by the city authorities. A resolution, in reference to this building, was passed by the city council in these words: "Resolved, That the chief of police be directed to take steps at once to enforce the city ordinance against all persons in any manner concerned in erecting the two story wooden building near the Union depot in this city, and to arrest and bring before the recorder all parties engaged in working on said structure, or connected therewith, including the superintendent of the L. & N. Railroad Company." The city ordinances bearing on this subject are as follows:

"SEC. 132. No person shall build any wooden house, shed or other structure of wood within the above described fire limits; or remove any structure from a place beyond to a place within the fire limits; or remove any wooden structure from any place within the fire limits to any other place within the fire limits or repair with wood or other combustible

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