City of Sylvania v. Hilton

Lumpkin, J. (After statiug the facts.) Some of the evidence introduced by both sides was incompetent, such as statements that ’“it was the understanding of deponent, and he thought that it was the understanding of other members of council,” etc.; and — 759 — that “said ordinance meant,” etc. The substantial question, however, is whether the ordinance was so clear and unambiguous as not to require the aid of extrinsic evidence for its construction, or whether resort could be had to .evidence that other buildings had been erected similar in character to this one, without objection on the part of the municipal authorities, for the purpose of throwing light on the meaning of the language used. If an ordinance is plain, clear, and unambiguous, it needs no aid from parol evidence for its proper construction. In such event the mere fact that it has been violated several times or many times would afford no excuse or reason for another violation, nor would it confer any right on others to violate it. To illustrate, if an ordinance prohibited the shooting of firearms within the corporate limits, upon the trial of one who violated it the fact that others had committed a. like breach of the ordinance and had gone unpunished would furnish no defense to him. So it is also in regard to a State law. It would be no defense to one tried for larceny to show that many other larcenies had been committed and the criminals had escaped without prosecution or punishment, although known. If, however, a building ordinance, or an ordinance prescribings fire limits is not clear, but is of ambiguous or doubtful meaning, it is competent to show what has been the ordinary construction placed upon it by the municipal authorities, in order to arrive at a proper construction of it. 1 Dill. Mun. Cor. (4th ed.) § 93; 1 Smith’s Mun. Cor. §§ 540, 541; McQuillin’s Mun. Ord. §§ 73, 289, 290; State v. Severance, 49 Mo. 401; Cole v. Skrainka, 105 Mo. 303; Saunders v. Nashua, 69 N. H. 492. In McQuillin on Municipal Ordinances, § 292, it is said: “ The general rule is that the meaning of an ordinance must be gathered from the law itself, and not from contemporaneous statements of the individuals who framed it or those who voted for it. This rule is particularly enforced where' the provisions of the ordinance are clear. In such case, contemporaneous construction adopted by the municipal officers charged with its enforcement will be held inadmissible to aid its construction. However, in doubtful cases where the language 'of the ordinance is ambiguous, a contemporaneous construction adopted by tbe parties interested in the enforcement of the ordinance, while not controlling, is entitled to great weight.” See also Tiedeman on Mun. — 760 — Cor. § 159. The rule is similar in construing statutes. Brown v. U. S., 113 U. S. 568; Sherwin v. Bugbee, 16 Vt. 444; Frazier v. Warfield, 13 Md. 279. So, if the terms of a contract are clear and unambiguous, they can not be changed by proof of usage. Kimball v. Brawner, 47 Mo. 398. The question then is, within which of these rules does the ordinance under consideration fall ? It is clear that the construction sought to be put upon it by the plaintiff can not stand. The expression, “and covered with-.tin or metallic or fireproof roofing,” plainly refers to the roof 'of the building, not to its sides. Certainly it can not be contended that the municipal council intended to provide for a building to be covered all over with.roofing, whether tin, metallic, or fireproof. Booling means the materials for a roof, and it needs no argument to show that this ordinance did not mean to provide' for covering the sides of the house with materials for the roof. The only question remaining, then, necessary for a construction of this part of the ordinance, is whether the word “incombustible ” is ambiguous so as to allow it to be construed by parol evidence showing that other houses had been built similar in character to that of the plaintiff. The Century Dictionary defines the word to mean “ not combustible; incapable of being burned or consumed by fire.” In Payne v. Wright (1892), L. R. 1 Q. B. Div. 104, the meaning of the word was under consideration. The metropolitan building act provided that the roof of every building should be covered externally with “slates, tiles, metal, or other incombustible materials.” The roof of a building was covered externally with materials consisting of woven iron wire coated with an oleaginous compound. The coating would ignite and burn away, leaving the wire work uninjured. It was held that the roof was not covered with “incombustible materials” within the meaning of the act. Mathew, J., said: “ The findings of the magistrate seem, however, themselves to answer the question put to us, for he finds as a fact that the material was partly combustible and partly incombustible. Upon these findings how is it possible for us to say that, as a matter of law, this material was incombustible’ within the meaning of the act ? . . It is true that the magistrate finds that this material is, for some reasons, safer than glass, but that does not make it incombustible.” A. L. Smith, J., said: “Sect. 19 provides that the roof of — 761 — every building. shall be covered with slates, tiles, metals, or other incombustible materials. Does that mean "other materials’ which are wholly incombustible, or- materials which are partly combustible (and partly incombustible ? In my opinion it means materials wholly incombustible.” The evidence in the present case shows without controversy that the entire framework of the house is of wood, and that it is to be covered on the outside with thin plates of corrugated iron. There is no contention that wood is incombustible, so that the material of which the entire framework of the house is built is combustible, and only a part of the material used, being the outer coating or covering, is incombustible in character. There are also other parts of the building composed of wood, such as the floor, ceiling, etc. Thus the case cited is directly in point. In Badley v. Cuckfield Union Rural Dist. Com., 72 L. T. R. (N. S.), (Q. B. Div. 1895) 775, the following ruling was made: “ One of the bye-laws made by the defendants, as rural sanitary authority, required all new buildings to be " inclosed with walls constructed with good bricks, stone, or other hard and incombustible materials properly bonded,’ etc. The plaintiff proposed to erect a sanatorium for his school, consisting of corrugated sheets of galvanized iron- one thirty-second of au inch in thickness, with a layer of felt inside, fixed to the outside of a framework of wooden upright and horizontal posts and rails, with wooden match-boarding inside. Held, that the galvanized iron alone was not á wall, and that the structure combined of wood and iron which constituted the wall was not of hard and incombustible materials as required by the bye-law.” Lord Russell, C. J., in the opinion, said: “ I think, therefore, for the purposes of this case we must regard the wall as consisting of at least the wooden post and frame and the sheets of corrugated iron. Can that be called a wall of incombustible material ? I think decidedly not; and the case is made stronger if we include the felt and the match-boarding.” In Ward v. Murphysboro, 77 Ill. App. 549, an ordinance was under consideration which declared it unlawful for any person, company, corporation, or firm to erect, build, or commence the erection, within the fire limits of the city, of any wooden or frame building or structure exceeding a certain size. Certain persons erected within such limits a building having a wooden — 762 — frame structure, one side, the ends, and the roof of which were covered with wooden sheeting, and this was covered with corrugated iron, the spaces between the studding being filled with loose brick. As the building was nearing completion, the mayor, marshal, and aldermen of the city, without giving notice to remove the building, tore it down, for which the owners brought suit in trespass. The defendants pleaded in justification the ordinance referred to. The trial court declined, on request, to charge the jury, “ The court further instructs you that the plaintiffs had a right to show by evidence, if they can, the fact, if such appears to be a fact from the evidence, that the city has permitted similar buildings to be erected'and constructed, within the fire limits of Murphysboro, as the one alleged to have been torn down by defendants, for the purpose of showing the construction the city and its officers themselves place upon said ordinance as to what buildings it prohibited.” On this point the appellate court ruled as follows: “If the city officers had tacitly allowed that portion of the city included in the fire limits to be filled with frame buildings no -better than tinder boxes, such fact would have thrown no light upon the true • construction of the fire ordinance. "When the ordinance was duly passed and published, it became a law of the city, and the city officers had no more right to disobey the law or suspend it, enlarge or construe it away, than any other person.” See also Tuttle v. State, 4 Conn. 68, 70. It has been said: “Where a municipal corporation has power to prohibit the construction of wooden buildings within a district and has enacted an ordinance to that effect, it may remove any building erected in violation of the ordinance, and this, too, without any judicial' proceedings whatever.” 13 Am. & Eng. Enc. L. (2d ed.) 400, and notes. As to the general powers of this municipality see Political Code, § 696. In Stewart v. Commonwealth, 10 Watts, 306, it was said: “On an indictment charging the defendant with erecting a wooden building within the City of Pittsburg, contrary to the ordinance, the jury found that he had erected a building composed partly of brick and partly of wood: Held, that such building was not within the ordinance.” This decision, however, was made in a criminal case, where the rule of construction applicable to criminal laws applied. In the opinion Sergeant, J., said: “ If this — 763 — were a remedial law, it might be construed liberally, so as to effectuate the design of the legislature, which was to guard against the danger of fires in a populous city. But being a penal statute, and this proceeding of a criminal cast, the rule of law is well settled, that such statutes are to be construed strictly, and that no one is to be brought within the penalty of the act who is not within the plain meaning of the words, strictly construed : and they are confined to wooden buildings only.” The ordinance now under consideration only provides for punishment by fine and imprisonment if any person shall erect or attempt to erect “any wooden building in violation of this ordinance.” A building of the character of that described in the evidence is not, strictly speaking, a wooden building, although, as held above, it is not constructed of incombustible material within the meaning of the ordinance. So far as the criminal proceeding is concerned, therefore, it is not sustainable under the ordinance. But it was not proper to grant an injunction to stop the prosecution, inasmuch, as the plaintiff can assert all his rights by way of defense. That part of the ordinance which provides for notifying the owner to remove the building, and, on his failure or refusal to do so, that the mayor shall -cause its removal, is not confined to a wooden building strictly so called, but applies to “any building erected in violation of this ordinance.” Under the law we are of the opinion that the presiding judge erred in granting the injunction. Judgment reversed. All the Justices concur, except Simmons, G. J., absent.