Ironside v. City of Vinita

Townsend, J. This was a suit in equity, in which •the appellant (plaintiff) filed her complaint, and asked for a -temporary restraining order against the appellee (defendant). The appellant has filed five assignments of error, as follows: “(1) Because the court erred in refusing to grant •the .injunction prayed for by the plaintiff against the defendant. (2) The court committed an error in dismissing plaintiff’s bill and rendering judgment against plaintiff on the ground that plaintiff failed to show any equity in her complaint. (3) The court committed an error in dismissing plaintiff’s bill and rendering judgment against her on the grounds that there was no equity in the complaint. (4) The court committed an error in denying to plaintiff the injunction prayed for and •dismissing her complaint on the record that the testimony — 495 — introduced before the court, ns to the complaint and statement of facts introduced in evidence, was insufficient to entitle plaintiff to the relief prayed for. (5) The ruling of the court and the rendition of the judgment is contrary to law and the evidence.” The appellant contends that either of her assignments are sufficient to reverse the case, and discusses them all together. If we correctly apprehend the proceedings before the court, the case was submitted for a final hearing at the same time the application was presented for the restraining order, and tire finding of the court was not that the complaint did not state a case for equitable relief, but that the court, after hearing the evidence, found that there was no cause for equitable relief. Counsel for appellee seem to concur in this view. In their brief they say: “The court did not hold that plaintiff’s complaint did not state a cause for equitable relief, but finds that after having heard the evidence and arguments of counsel that the issues were in favor of the defendant, and that the plaintiff had no cause for equitable relief. The court did not make this finding altogether from the plaintiff's pleading, the plaintiff probably plead a good cause of action for equitable relief, but the court found from the evidence introduced that the evidence did not-sustain the complaint. There was really no question of law involved. The complaint alleges a cause for relief, and the answer denies it, and after the evidence was introduced the court found the issues in favor of the defendant, the appellee here.” Section 752 of Mansfield’s Digest is as follows: “They shall have power to regulate the building of houses; to make regulations for the purpose of guarding against accidents by fire, and to prohibit the erection of any building, or any addition to any building, more than ten feet high, unless the outer walls thereof be made of brick or mortar, or of iron, or stone and mortar; and to provide for the removal of any building — 496 — or additions erected contrary to sucli prohibition.” And the ordinances adopted by the defendant are as follows: “Sec. 133. No building or parts of buildings other than those constructed of fire proof material within the limits shall be raised, enlarged or removed to another place within said limits, nor shall any such building be moved into the fire limits without tfie consent of the town council. Sec. 134. It shall be unlawful to repair or rebuild any wooden building within the fire limits which may hereafter be damaged to the extent of 25 per cent of the value thereof, without first obtaining permission from the town -council.” ' Section 752, it will be observed, is a grant of power “to regulate the building of houses, to make regulations for the purpose of guarding against accidents by fire, and to prohibit the erection of any building, or any addition to any building, more than ten feet high, unless the outer walls thereof be made of brick or mortar, or of iron, or stone, and mortar.” Ordinance No. 133 applies only to buildings to be raised, enlarged, or removed, and ordinance No. 134 applies to wooden buildings to be repaired or rebuilt within the fire limits, which may hereafter be damaged to the extent of 25 per cent, of the value thereof, without obtaining permission of the town council. The plaintiff alleges that she proposed to repair said building, hence ordinance No. 134 is the only one applicable to the plaintiff’s case, and that is not applicable, unless it is a wooden building damaged to the extent of 25 per cent. Upon exactly what -ground the court decided this case is not disclosed in the judgment. If the court dismissed the complaint because no equitable relief was stated in the complaint, we cannot agree with the judgment or decree of the court. If the court 'arrived at its conclusion from the evidence submitted in the affidavits, then it must have found that the building was a' wooden building, and damaged more than — 497 — 25 per cent. The ordinance only applies to wooden buildings, and if it was not a wooden building, then the ordinance had no application, and the restraining order should have been granted. If the court found it was a wooden building, and damaged over 25 per cent., then it becomes the duty of this court to examine the evidence upon which the judgment was rendered. First, we have the affidavits for plaintiff of A, F. Fahrney and H. E. Chastain, who state they are mechanics and carpenters, that they know the building; “that the building was worth at the time it was damaged by fire at least $900; that it would have cost that amount of money to have bought the material and placed same on the ground and worked it into the building as it stood before the fire damaged it; that the damage done to the building by fire, or the cost to repair the building as the building now stands on May 1, 1905, including the labor and material, would cost about $109.04; that this estimate is made by us after inspecting the damage done and calculating the material to be used, and the time it would take in working the same into the building; that the estimate, as made, we believe to be a fair estimate, and as near and accurate as can be made possible from the observation of the building.” Second, the affidavit of J. N. Scott, who states he is a mechanic by profession, and knows the building; “that the value of the building as it stood February 13, 1905, was $900; that he has examined the building since damaged by the fire on February 13, 1905, and to the best of his judgment the damage done to the building by fire can be repaired for the sum of from $150 to $175; that he is satisfied it can be done for not exceeding $175.” The defendant then introduces: First, the affidavit of D. C. Boswell, who states that he is a carpenter and builder and contractor for building, “and have been engaged in the — 498 — business of building for 52 years; that at the request of the mayor of Vinita I made a careful examination of- the building in controversy; that after a careful estimate I find that the building is damaged over 35 per cent, of its value by reason of said water and fire; that the building before the fire at a reasonable estimate was worth the sum of $300; that it will take at the least 'calculation $125 to place the building in repair.” Second, the defendant introduces the affidavit of W. B. Coley, and the joint affidavits of B. F. Fortner, S. E. Wallace, and J. C. Wilkinson. W. B. Coley states that he is the mayor of Vinita; “that he has read carefully the affidavit of B. F. Fortner, S. E. Wallace, and J. C. Wilkinson, aldermen of the said city of Vinita, and know the statements therein contained, and that he says under oath" that said statements are true and he makes thesame as his affidavit to be filed herein the same as if the same were copied herein in haec verba.” Fortner, Wallace and Wilkinson state that they are the duly elected and qualified aldermen of Vinita; that they have examined the building in controversy carefully; “that, after a full, complete and careful investigation of said building, we estimate the damage done to said building to be at least 35 per cent, of the total worth of the said building.” What does this proof show as to the value of the building, and the percentage of damage to that value? The three witnesses for the plaintiff, who are carpenters and mechanics, all state the value of the building was $900 at the time of the fire. Fahrney and Chastain estimate the cost of repair to be $109.04. Scott estimates cost of repair at from, $150 to $175, not to exceed $175. Boswell, who is a carpenter and contractor, estimates the value of the building at $300, and the cost of repair at $125. The mayor and three aldermen, who do not state what their business is, and do not state the value of the building, estimate the cost of repair at 35 per cent. The -conclusion we have arrived at would be that the preponderance of the evidence — 499 — is that the value of the building 'at the time of the fire was $900, and that the cost of repair, taking the evidence of Fahrnev, Chastain, and Scott for the plaintiff and Boswell for the defendant, would be less than 25 per cent, of that value. Appellant', in her argument, insists that ordinances Nos. 133 and 134 are void, No. 133 as being inconsistent with section 752 of Mansfield's Digest, and No. 134 because it conflicts with the general law authorizing the incorporation of municipalities in the Indian Territory. But this was not an issue in the court below. It is not alleged in plaintiff's complaint that these ordinances are void, and hence that question is not before the court. Elliott on Appellate Procedure, § 481, says: “It is required by the general doctrine that the court of last resort should not be required to decide a question that has not been passed upon by the trial court, since any other holding would in effect make the Appellate Court one of original jurisdiction. The true theory is that there must be a decision by a court of original jurisdiction to be reviewed by the appellate tribunal, for unless this be so the Appellate Court becomes a trial court.” And in sections 489 and 490: “The cardinal principle of appellate procedure which requires that questions of which a review is sought shall first be appropriately brought before the trial court for decision, makes it indispensably necessary that positions should not be shifted on appeal, for, if parties were allowed to change positions, the appellate tribunal would often be compelled to decide questions as purely original ones, and this, certainly, is not the purpose for which they were created. It is, therefore, with reason held that parties must stand by the positions assumed in the trial court and upon which they asked and obtained rulings. The same rulings are to be reviewed and not different ones.” Section 489. “The strong current of authority carries the general principle stated to its — 500 — logical conclusion, for the courts are well agreed upon the doctrine that the theory acted upon in the lower court must be adhered to in the higher. The rule that the theory acted upon in the trial court must be adhered to upon appeal finds expression in various forms, but the meaning conveyed, whatever the form of words employed may be, is essentially the same. Some of the courts express the rule by saying that new issues can not be made on appeal, others give it expression by saying that there can be no change of base on appeal, and others by some such expression as that the matter was not contested below and it can not be contested above.” Section 490. In City of Charleston vs Reed, 55 Am. Rep. 340, it is said: “It is argued by counsel for plaintiffs in error that the several fire ordinances of Charleston are void, because there was no authority in the charter of the city to pass any such ordinances; that the real test of all ordinances passed by an incorporated body is the intention of the Legislature in granting the charter; that corporations cannot make ordinances contrary to their charters. If there is no authority in the charter of the city of Charleston to pass the said ordinances, of course according to the great weight of authority they are void.” And cites many cases to sustain the foregoing, an’d then says: “Our court (West Virginia) has correctly settled the powers of municipal corporations in this state, as follows: ‘A municipal corporation possesses and can exercise the following powmrs and no others: .(1) Those granted in express words by its charter, or the general statutes «under which it is incorporated; (2) those necessarily or fairly implied or in'cident to the powers thus expressly granted; and (3) those essential to the declared purposes of the corporation, not simply convenient, but indispensable.” And the court cites the following cases and their decisions in support of the doctrine announced: “In Bradley vs Insurance Co. (11 Mich. 425), it was held that the common council of Detroit had powmr — 501 — to pass ordinances establishing fire limits and forbidding the rebuilding or repair of wooden buildings within such limits. The majority of the court by Martin, Chief Justice, said: ‘O-f the power of the common council to pass the ordinances in question we have no doubt. They contravene no provision of the Constitution as we read it, and they were -made in the exercise of a. police power necessary to the safety of the city. A regulation of the use of property, or a prohibition of its repair when partially destroyed, cannot to my mind be regarded as a condemnation to public use.’ The charter allowed the city to prevent the ‘location or construction’ of wooden buildings, the ‘removing’ of such buildings, and the ‘rebuilding or repairing’ of the same within the fire limits, which may be adopted.'” “In Wadleigh vs Gilman it appeared that the act incorporating the city of Bangor conferred authority on the city 'to ordain and establish such acts, laws and regulations, not inconsistent with the Constitution and laws of the state, as shall be needful to the good order of such body politic.’ It was held that an ordinance of the city government prohibiting the erection of wooden buildings-in the city within certain limits was within the authority conferred. Weston, C. J., in .delivering the opinion of the court, said: ‘The regulation in question is for the general benefit. It adds to the value of the property by lessening the hazard from fire, which operates as a tax upon it, whether the owner is his own insurer or procures others to take the risk for a valuable consideration. And economy as well as safety is really consulted by building with durable materials. Nor is there any danger that the power to pass ordinances of this character will be wantonly or unnecessarily exercised. The city authorities are annually elected by the citizens from among themselves. No law of theirs, not acceptable to the majority would be tolerated or suffered to remain.' ” “The charter of New Haven authorized the city to make ordinances ‘to protect said city from fire; — 502 — to organize, maintain and regulate a fire department and fire apparatus; to regulate the mode of building and the materials used for building, or altering buildings within the city or any part thereof; and the mode of using any buildings therein, and of heating the same, when such regulations seem expedient for the purpose of protecting said city from the dangers of fire/, etc. It was held that an ordinance passed under said charter ‘establishing a fire district and forbidding the eréction or placing of any wooden building within the district without license given by the board of aldermen, declaring such building should be deemed a common nuisance, .and making it the duty • of certain officers after reasonable notice to abate it/ was fully authorized by the charter and was reasonable. Hine vs City of New Haven, 40 Conn. 478.” “The charter of the town of Greenville, Miss., gave the council power ‘to provide for the prevention and extinguishment of fires, and to organize and establish fire companies/ etc.; and it was held that while the charter did not in express terms give the council power to establish ‘fire limits/ and prohibit the erection of wooden buildings therein, yet such power is by the charter by fair implication conferred on the council. Alexander vs Town Council, 54 Miss. 659.” And after these citations the court says: “In addition to the clause, ‘to make regulations for guarding against danger or damages from fire/ we have the power ‘to control the construction and repairs of all houses.’ Now it seems to me that the provision of the charter of Charleston is the equivalent of conferring upon the council the power ‘to from time to time establish “fire limits” and prevent the erection of wooden buildings therein.’ These powers, it seems to me, if not expressly granted, are fairly implied from the language used in the charter, and are incident to the powers expressly granted, and are moreover essential to the declared purposes of the corporation, not simply convenient, but indispensable.” — 503 — In our judgment, ample authority was given by section-752, Mansf. Dig., to adopt the ordinances. As heretofore stated, the only one of the ordinances applicable to repairs is ordinance No. 134, and if the building to be repaired was-not a wooden building, then that ordinance was not applicable. If it was a wooden building with a damage of less than 25 per cent, of the value, then the plaintiff had a right to repair, and we are of the opinion that the damage was less than 25 per cent, under the proof. Therefore we are of the opinion the restraining order should have been granted, and the case is reversed, with directions to proceed in accordance with this opinion. Reversed and remanded. Clayton, J., concurs. Gill, C. J., dissents.