Mayor of Monroe v. Hoffman

[652] The opinion of the court was delivered by Howell, J. This is a suit to compel the defendant to remove a wooden building erected within what is known as the “ fire district ” in the city of Monroe. The defendant excepted to the capacity of the mayor for want of the qualifications to hold said office and the right of the Governor to make the appointment of the mayor or the councilmen. The right to an office, it is long since settled, can not be thus collaterally raised, and the judge a quo did not err in overruling the exceptions. The answer presents a three-fold defense: First — The mayor and trustees of the town of Monroe had no power, express or implied, to adopt ordinance No. 19, of October 6, 1870, creating the fire district, and said ordinance was null and produced no legal effect. Second — The ordinance No. 56, adopted the third of January, 1872, by the mayor and council of the city of Monroe, suspending the effect of the above ordinance No. 19, did not give vitality or validity to the latter. Third — If these propositions be unsound, the charter of Monroe, of May 4,1871, does not confer the power to remove or destroy wooden buildings once erected in the fire district, without compensation, and the corporation could not compel its citizens to enter into a contract to take down the buildings on a certain day. First — The plaintiffs consider that the town of Monroe was never empowered by express words to establish fire limits and to prevent the erection of wooden buildings therein; but they contend that this power is fairly implied in the powers expressly granted by the various acts of the Legislature incorporating the town, and that such power is necessary to the objects and purposes of such corporations. By a clause in article 433, R. C. C., corporations may “ enact statutes and regulations for their own government, provided such statutes and regulations be not contrary to the laws of the political society of which they are members.” By the various charters prior to that of May 4,1871, the mayor and trustees of the town of Monroe were empowered to adopt all rules, ordinances, regulations, and by-laws for the general government, improvement, and police of the town, and prescribe the manner of enforcing them, not contrary to or inconsistent with the constitution and laws of this State and the United States, See acts of 1855, p. 189, sec. seven; acts 1859, p. 215, sec. fifteen; acts 1866, p. 130, sec. nine. It seems to us clear that where a municipal corporation is vested with ' such powers, and the compactness of its construction would increase the hazard of conflagration, the corporate authorities may fix what is known as a fire district and forbid the erection of wooden buildings [653] therein. No town or city, compactly built, can be said to be well-ordered or well-regulated which neglects precautions of this sort. It is its duty to the public to take such measures as may be practicable to lessen the hazard and danger of ñre. The public good and safety are superior to the individual rights of the inhabitants, and under this principle such regulations are not the divestiture of the individual right of ownership and use, but is only conforming the use of individual property to the necessities, safety, and interests of the public. It is a regulation of its enjoyment. A similar construction of the powers of such corporations has been adopted in some of our sister States. See 2 Yeates (Penn.), 493; 11 Mich. 425; 7 Cowen (N. Y.), 352; 3 Fairfield (12 Maine), 403. We think the town of Monroe had authority to enact ordinance No. 19, of October 6,1870, and hence the second proposition falls. We may add, however, that the want of authority is not, under any correct rules of interpretation, so clear as to make the ordinance an absolute nullity and incapable of confirmation, and the ordinance No. 56, of the third of January, 1872, had such effect if needed. Third — Does the charter of 1871 confer the power to remove wooden buildings after being erected within the fire district ? We think this a corollary of the first proposition. The power to prohibit includes the power to undo what is done in contravention of the prohibition. “A satisfactory and lawful regulation may otherwise be defeated and rendered ineffectual. The removal is made to prevent the hazard of the continuance of the combustible matter in a dangerous position, and not with the view to punish the wrong-doer or subject him to loss. If he thereby sustains a loss,- it is the direct consequence of his unlawful act, of which he has no right to complain.” 3 Fairfield, 403. The objection that the mayor and city council could not, as is done in ordinance No. 56, give permission to build temporary wooden buildings and require their removal at a fixed date has no force. If they had the power to prohibit entirely,- they had the power to modify the prohibition. The greater includes the less. This is a matter of legislation and not of contract. The prohibition existing, they had the power to suspend it for a limited period for the benefit of the public. Those who built after the passage of said ordinance built with a knowledge of the condition imposed, and, it being a legitimate condition, they were bound by it. We think the action is maintained. Judgment affirmed.