Harper v. Mayor of Jonesboro

Atkinson, Justice. Harper applied to the town authorities of Jonesboro for permission to replace an old building with a new one. It appears that the old building was of wood, and he desired to construct the new one of like material. Long previous to this there had been adopted an ordinance fixing certain limits within the town of Jonesboro, within which parties would not be authorized to construct frame buildings. It seems that the mayor and council in session adopted a resolution authorizing the petitioner to repair, or take down and rebuild, his old wooden building, upon condition that he or those holding under him should not place any obstruction on the sidewalk, nor any floor nor covering which required posts should be placed there, but that he might place one similar to that in front of the adjoining building; but before this permit should go into affect, he should subscribe and agree to this condition. It appears that, though he stated to the clerk of the council that he agreed to the condition, he at no time subscribed thereto. Afterwards the mayor and council revoked the permit and refused to allow him to construct his building. He brings suit for damages. The power to regulate the construction of buildings within its limits and to prescribe the material out of which buildings within certain limits can be constructed, is one necessary to be exercised by municipal corporations. It is essential to the safety of person and property in towns and cities, that there reside somewhere a power so to regulate the construction of buildings as 803 that one person by the use of improper of combustible material may not endanger the property of an adjacent proprietor. The exercise of this power by the passage of an ordinance establishing fire limits imposes obligations which are equally binding upon all the citizens of the municipality, and likewise upon the council itself. The passage of an ordinance is a legislative act, accompanied with a certain degree of formality, and, unless in the ordinance itself there be some provision by which the city authorities reserve the right to abrogate its terms by a less formal method of procedure, no change can be made in such an ordinance except by the passage of another, qualifying, repealing or modifying its terms. See Lawyers’ Reports Annotated, book 18, page 590. There is no suggestion in this petition, that any ordinance was passed by the council modifying the ordinance in question in favor of this plaintiff. It is not so alleged in the petition, but the plaintiff himself, recognizing the binding force of the ordinance, filed a petition requesting permission from the mayor and council to violate this ordinance. The mayor and council, upon simple resolution it appears, unaccompanied with any of the formalities incident to the enactment of town ordinances, granted this petition, imposing upon the applicant certain conditions before even this permission could be made effective. It does not appear that these conditions were complied with by him. Indeed, the contrary appears from the averments of the petition. If this plaintiff assumed to act upon the informal authority granted by the mayor and council, he himself not complying with the conditions upon which the alleged permission was granted, and thereupon tore down his old building, he cannot complain if the mayor and council declined to permit him to' rebuild. They cannot waive the binding force of a valid town -ordinance, and are not estopped to insist upon its enforcement 804 whenever the public interest may seem to require it. We think, therefore, the court did not err in sustaining the demurrer to the plaintiff’s declaration. Let the judgment of the court below be Affirmed.