3 Robbins.

Anderson v. Supreme Council C. B. L.

was substituted, then the payment should be made to the member, for such provision would have been void, as creating a life insurance policy; and equally invalid, I think, would have been a provision that if no other beneficiary was named, the payment should be made to the legal representative of the deceased beneficiary for the benefit of those persons entitled to her estate on her death. This also would have made the right to the payment an absolute property right in her administrator on her death, as in a life insurance policy. The general object of these appointments or designations of beneficiaries, and the feature which distinguishes them from ordinary life insurance policies, is that they are intended to be made, not for the increase of the estates of either the deceased member or the deceased beneficiary, but for the benefit of some of the dependents or members of the family of either, and in order that the certificates may be valid, the persons to receive the benefit must, I think, be living at the death of the member. And while there may perhaps have been in this case misapprehension of his rights, which may have led the member to refrain from changing the beneficiary, yet the result, which must depend solely on the contract for payment seems to me the only construction of the contract and by-law which is reasonable or will make the contract valid. If a member under this form of by-law could add to the estate either of himself or his wife by the mere failure to designate another beneficiary than the wife, then a method would seem to have been devised by which a purely life insurance policy to a member can be issued by benevolent associations organized solely for the purpose of benefiting certain persons (families or dependents) who survive them. This would radically change their whole character.

I will advise a decree that the defendants Bridget Burke and Julia Burke are equally entitled to the money paid into court, but before making decree will hear the administrator of the will as to the form of the decree which should be made for the protection of his rights.

Jackson v. Miller.

69 Eq.

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 any 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 Abeel, for the complainant.

Mr. Malcolm MacLear, for the defendant.

EMERY, V. 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-five 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 (Revision of 1902), adopted January 3d, 1902, by section 100 (p. 51) included the premises within the fire limits, and provided (p. 53 § 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. 57), 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 the ordinance for a first conviction and a fine of $25 for each day's continuance of 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. 1903 p. 513) 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 the 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 fire in the vicinity. This allegation is fairly contested by the affidavits filed in rebuttal, and 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 legislation 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 the 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 his 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