Houston v City of Pittsburgh et al. (No. 1.) the Mayor approved, an ordinance defining the powers and duties of the Department of Public Safety and bureau of building inspection therein. This ordinance was approved February 23, 1916, and is recorded in ordinance book, vol. 27, page 277. Section 1 empowers and directs the department and the bureau to inspect, regulate, supervise and control the construction and alteration of buildings and to issue permits in respect thereto as therein, or thereafter, by ordinance prescribed. Section 2 makes it the duty of the bureau to examine and pass upon all applications for permits for the construction, alteration, repair, use and occupancy of buildings; approve or disapprove same and issue or refuse to issue any and all permits. Section 4 of the ordinance under the headings-"Refusal to Issue Permits;" "Issuing Permits;" and "Revocation of Permits," respectively provides that "When it may become necessary to refuse to issue permits, such refusal shall be made on a form provided for the purpose and shall state clearly the reason for such refusal." "When such applications, plans, and specifications or descriptions indicate full and complete compliance with the requirements of the laws and ordinances the superintendent shall issue or cause to be issued a certificate for a permit, etc." "Whenever the work for which a permit has been issued is not being performed in conformity with the plans, specifications and descriptions filed with the application and upon which the permit has been issued * it shall be the duty of the superintendent to notify the applicant * that such work must be suspended until a permit has been obtained, etc." Legislative restrictions upon the use of real property for any purpose not per se unlawful must be construed strictly. The ordinance from which we have quoted does not give arbitrary power to any department, bureau or official. If a "permit" is refused the reason for refusal must be clearly stated. The power to recall or revoke a permit is limited. When application, plans, etc., indicate full and complete compliance with the requirements of the laws and ordinance, the superintendent shall issue a permit. "Shall," as here used, means "must." If, though authorized by ordinance to refuse a permit, the superintendent must state his reason for refusing, he cannot, in the absence of authority, equally specific, revoke or recall a permit, without stating any reason. Though it be assumed that the superintendent can and will disclose good and sufficient reasons for revoking the permit, yet, until so disclosed, the defendants cannot interfere with the plaintiff in the exercise of his rights. That equity has jurisdiction, we entertain no doubt. Mandamus is a proper proceeding to enforce the performance of an official duty; equity to prohibit interference with the enjoyment of legal rights. The bill discloses an interference with a right granted by defendants, hence the reason for revoking it must be pleaded. Whether plaintiff can safely proceed pending final adjudication of the questions involved we do not undertake to determine. Houston v City of Pittsburgh et al. (No. 2.) Injunction Municipal Officer-Building Permit-Menace to Public-Discretion-Equitable Jurisdiction. To hold that a city, by its department of safety, may not do any act having for its object and purpose the protection of the public, merely because the charter of the city does not specifically provide for an emergency that could not have been anticipated, would place an unreasonable restriction upon the exercise of governmental powers by the municipality, so that equity has power to refuse an injunction to compel the city at the instance of a property owner to permit the erection of an auto-station and garage that would be a menace to the public. The superintendent of building inspection of a municipality, acting under authority of a municipal ordinance and within the discretion vested in him, having revoked a building permit improvidently issued, a court of equity cannot summarily nullify his order in the absence of evidence of abuse of discretion, or that he was actuated by improper motives or acted without due consideration. Equity may not interfere except to compel performance of a duty, and plaintiff in asking for an injunction the effect of which, if granted, is to bind his adversary hand and foot, must make out a clear case of at least preponderating equity. In Equity. Bill to Restrain Interference by Defendants, with the Erection of a Gasoline Service Station, etc. No. 882 July Term, 1920. C. P. Allegheny County. Thomas H. Hasson, for plaintiff. Chas. A. O'Brien, City Solicitor, for defendant. CARPENTER, J., June 14, 1920.-Plaintiff is the owner in fee of premises at the southeastern corner of Hiland and Stanton Avenues in the City of Pittsburgh, having acquired title thereto by deed dated October 1, 1919, recorded in Deed Book 1899, page 170. On or about April 1, 1920, he submitted to the Bureau of Building Inspection, drawings and specifications of a proposed Gasoline Service Station, to be erected on the corner of said lot, and of alterations to a building thereon, part of which was to be used as an auto-accessory sales room. On May 1, 1920, a permit was issued, signed "W. E. Bowman, for Bureau of Building Inspection." On the same day the Bureau revoked the permit and notice of revocation signed by S. A. Dies, superintendent, was given. On May 6, plaintiff began work and was thereupon notified to stop and, declining to do so, was arrested. On May 8th this bill was filed. Plaintiff prays that the City and its officers be restrained from interfering with said work, and that the Court decree said notice of revocation ineffective as a revocation of the permit of the same date. Admitting the facts, but denying plaintiff's right to relief in equity, defendants' counsel asked that the bill be dismissed. After argument the motion to dismiss was overruled and the Superintendent directed (see 68 P. L. J., ...) to give the reasons for revoking said permit. This order was complied with, testimony heard, and the questions involved argued at length. The reasons assigned are: "First. That the said permit was inadvertently granted without proper information and knowledge as to the conditions and circumstances of the location of said building, and the use and purpose for which said building is intended. "Second. After full examination and investigation of the location of this Auto Accessories Service Station, I am convinced that the conduct and operation of such concern at that point would be a menace to the traveling public, and in fact would constitute a public nuisance." Houston v City of Pittsburgh et al. (No. 2.) In our opinion, the question is not, fundamentally of "power to revoke" but of "power to withhold" a permit, where the plans and specifications show a proposed structure that, when erected, will conform physically to legal requirements. Of the power to revoke a permit which for any reason should not have been issued, we entertain no doubt. Nor have we any doubt respecting the power of the duty of the City, acting through and by its duly authorized agencies, to refuse to grant, or, if issued, to recall a permit for a structure, which, because of its intended use and its proximity to main public avenues, will, to an unwarranted degree, necessarily interfere with the free and safe, lawful use of said highways by the public. ex Municipal corporations have such powers of government as are pressly granted, and such as are necessary to carry them into effect. No powers can be implied except such as are essential to the objects and purposes of the corporation as created and established. To hold that the City, by its Department of Public Safety, may not do any act having for its object and purpose the protection of the public, merely because the charter of the City does not specifically provide for an emergency that could not have been anticipated, would, in our opinion, place an unreasonable restriction upon the exercise of governmental powers by the municipality. The general rule respecting the powers of municipal corporations is as quoted by plaintiff's counsel, in his brief, from Dillon, Vol. 1, page 440, Sections 237 and 239. See also Ottowa v Casey, 108 U. S., 110, and Lesley v Kite, 192 Pa., 268. As in many other instances the rule is plain enough. The practical difficulty is in applying it in concrete cases. That a gasoline service station is not per se a nuisance is admitted, that its location and operation may make it a nuisance must be conceded. Superintendent Dies testified he would not have allowed the permit to go out if he had been at his office. He further testified that in his opinion the operation of a gasoline station at the point selected by plaintiff would be a menace to the traveling public and a nuisance. We are not persuaded the superintendent is powerless to revoke a permit issued by him or by any one of his subordinates, improvidently. Being of the opinion above expressed he would have been derelict in the performance of his duty had he not rescinded the action taken in his absence. Whether his "opinion" was warranted by the facts is not the question now before the Court. Having acted officially, the Court cannot summarily interfere or nullify his order in the absence of evidence of abuse of discretion. There is no evidence that the Department of Public Safety or the superintendent was actuated by improper motives or acted without due consideration. Whatever the reason for revoking the "permit," it was revoked. That the City may fail to sustain its contention does not affect the question presently involved. Plaintiff is asking that he be allowed to proceed with the erection of one structure and the alteration of another despite the fact that privilege has been denied him by those who alone have power to grant or withhold it. The Court may not interfere except to compel performance of a duty. Whether there has been a refusal without adequate cause is a question of fact in each instance. This is a proceeding in equity, and to quote the language of Judge Davis in Smith et al. v Wegner, 29 Dist. Rep., 399 (405): "It lies on a party who asks for a decree, the effect of which, if granted, is to bind his adversary hand and foot, to make out a clear case of at least preponderating equity." It is clear that in entering and leaving the place to be occupied by automobiles while being supplied with gasoline, it will be necessary to cross the sidewalks on Hiland and Stanton Avenues, and in view of the evidence Houston v City of Pittsburgh et al. (No. 2.) as to the use of these corners by the public, we are not prepared to say the action of the City is an arbitrary use of its police power. The maxim Salus Populi Suprema Lex, though old, is not obsolete. Until satisfied by evidence that the City, through its constituted authorities, is unlawfully depriving plaintiff of his rights, the injunction prayed for must be denied. Injunction refused. Slander-Foreign Words Peppa, etc. v Tyburski. -Translation-Allegata and Probanda. In slander, while it is not necessary that the exact words be proven, yet there must be a substantial proof of the words alleged in the statement of claim, so if the words were spoken in a foreign tongue, it is not only necessary to set the words out in the foreign tongue, but there must be a correct translation, and if the words set out in the foreign tongue do not correspond to the proof nor to the translation given in the statement of claim, there can be no recovery. Rule for Judgment N. O. V. No. 1877 April Term, 1917. C. P. Allegheny County. Louis V. Barach and R. P. & M. R. Marshall, for plaintiff. Before EVANS, BROWN and DREW, JJ. EVANS, J., May 19, 1920.-The plaintiff brought the suit for damages for slanderous words spoken. The slanderous words were spoken in the Polish language, as alleged in the statement of claim, and the English translation was as follows: "Michael Kowalek has all he wants of Josephine Figas, she is no good and anybody can have her for the price. It doesn't take much money to get her." The witnesses for the plaintiff testified that the defendant said that "Michael Kowalek had had sexual intercourse with Josephine Figas." There was no evidence on the part of the plaintiff that the English words above quoted was a proper translation of the Polish words set out in the statement, and the testimony of the defendant was to the effect that the Polish words, some of them didn't mean anything, some of them had different meanings in the Polish language, and as to some of the words, there were no such words in the Polish language. There is no question that the proof offered by the plaintiff did not conform to the allegations of her statement of claim, that while it is not necessary that the exact words should be proven, yet there must be a substantial proof of the words alleged in the statement of claim, and so where the words were spoken in a foreign tongue, it is not only necessary to set the words out in the foreign tongue, but a correct translation, and the words set out in the foreign tongue do not correspond to the proof nor to the translation given in the statement of claim. The Statute of Limitations barred this action, and therefore we refused permission to amend. The jury found the verdict against the defendant, and if the allegations of the statement of claim had been properly prepared, we would have had no hesitation in sustaining the verdict. Judgment n. o. v. in favor of defendant. Commonwealth ex rel. City of Duquesne v Danich. Constitutional Law Public Meetings City Ordinance-Permit Mayor -Free Speech and Assemblage. A municipal ordinance prohibiting street parades, public meetings and other public assemblages without a permit to be issued by the mayor, who shall first be satisfied "that the same shall not be detrimental to the public interests," is not void, illegal, unfair, discriminatory, oppressive or unreasonable, and is not in violation of the constitutional rights of the people to free speech and free assemblage, as guaranteed under the Constitution of the United States and the Constitution of the Commonwealth of Pennsylvania. There is no distinction in law between the terms "legal rights of citizens in the use of streets, squares, etc.," and "public interests" as used in a municipal ordinance prohibiting public meetings or parades without a permit from the municipal authorities. The court refused to set aside a summary conviction where defendant had been arrested for holding a meeting upon a public street where the mayor had refused a permit as required by an ordinance. The avowed intention of the meeting was to publicly discuss a subject in a locality where in the past its discussion has been the cause of riots, bloodshed and death, a subject which at the time provoked great excitement, bitter feeling and inflamed passions among those who discussed it. This was a matter within the discretion of the mayor acting as judge for the best interests of the city. Appeal. No. 477-1920 Commonwealth Docket. W. M. Ewing and Hallock C. Sherrard, for plaintiff. C. C. Allegheny Kennedy, P. J., July 7, 1920.-In this case and in the cases at Nos. 478, 479, 480, 481 and 482, 1920, the defendants were arrested on the 9th day of May, 1920, in the City of Duquesne, Allegheny County, Pennsylvania, each charged with attempting to hold a public meeting on the streets of said city, in violation of an ordinance forbidding such meetings without a permit, which permit had been refused, the application therefor being in form as follows: "NATIONAL COMMITTEE FOR ORGANIZING IRON AND STEEL WORKERS. Hon. Jas. S. Crawford, Mayor, City of Duquesne, City Hall, Duquesne, Pa. Dear Sir: April 8, 1920. Notice is hereby given that the American Federation of Labor desires to hold an open air meeting in the City of Duquesne on the 9th day of May at 2:00 P. M., for the purpose of open discussion of the cause of organized labor, the meeting to be held at the corner of River and Linden Streets or upon the play ground in the rear of the City Hall, or at such other place in the City suitable for the purpose, which may be designated by you. The meeting will be in charge of J. L. Beaghen, General Organizer of the American Federation of Labor, working under the direction of the National Committee for Organizing Iron & Steel Workers of the American Federation of Labor. A permit for such a meeting is herewith requested. Kindly mail permit to the undersigned in stamped envelope herewith enclosed. Respectfully, J. L. BEAGHEN, General Organizer, American Federation of Labor." |
