State v. H. Samuels Company, Inc.

211 N.W.2d 417 (1973)

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Nature of the Case

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Facts

D operated a salvage business at the same location since the early 1900s. In 1948 the junk business was expanded to include the salvaging of metals from automobiles and other machinery. Cranes were used after 1949, a guillotine shears after 1966, and a hammer mill about 1971. D operated around the clock, but at the time of trial, the operation at night had been reduced. D utilized railroad cars, trucks, heavy-duty cranes, guillotine shears, oscillators, conveyor belts, air tools, hammer mill, and metal-sorting equipment. Prior to 1966, block 137 was zoned commercial and light industry, but in 1966 the zoning was changed to heavy industrial. Block 137 is the only block so zoned in the developed portion of Portage. The areas immediately adjacent to block 137 are zoned either residential, single-family homes or commercial and light industry. D has a license to operate a junkyard. The city of Portage has an ordinance prescribing maximum permissible noise and vibration levels. P claimed that D has repeatedly violated this ordinance and will continue to do so to the injury of the public. D's testimony consisted of the testimony of the chief of police who related that of the 32 complaints received in 1970, 24 were by one person and the rest by four persons; in 1971, of the 47 complaints, 38 were from one party and the balance from seven other persons. No action on behalf of the city of Portage has been taken to enforce the city ordinance against D. The trial court stressed that before an injunction will issue when a statute has been violated an effort must first be made to prosecute for the violation of the statute and under the facts no such effort had been made. It ruled against the injunction and P appealed.