City of Brenham v. Holle & Seelhorst

• Decision Date: 08 January 1913
• Parties: CITY OF BRENHAM v. HOLLE & SEELHORST.
• Court: Texas Court of Appeals

Page 345

153 S.W. 345

CITY OF BRENHAM v. HOLLE & SEELHORST.

Court of Civil Appeals of Texas. San Antonio.

January 8, 1913.

On Motion for Rehearing, February 5, 1913.

Appeal from District Court, Washington County; Ed R. Sinks, Judge.

Action by the City of Brenham against Holle & Seelhorst. Judgment for defendants, and plaintiff appeals. Reversed and rendered for plaintiff.

Thos. B. Botts, of Brenham, for appellant. W. W. Searcy, of Brenham, for appellees.

MOURSUND, J.

Appellant, the city of Brenham, sued appellees to enjoin them from continuing the construction of a building within the fire limits of the city of Brenham and to have them remove and take down that portion of said building which had been erected by them. It was alleged that said building was being constructed of material not fireproof, using wood and galvanized iron for walls of the same, contrary to ordinances, which were pleaded. Ordinance No. 111 established the fire limits. No. 112 prohibited wooden buildings within said limits. No. 113 reads as follows: "Construction of buildings erected within.—Each and every building of every kind or size erected by any person within said limits, shall have its walls and roofs constructed of fireproof material, using for walls, brick, stone or concrete and roofs of tin, slate or iron." No. 114 relates to repairs of wooden buildings. No. 115 reads as follows: "Any person who shall violate the provisions of ordinances 112 and 113, shall on conviction before the recorder, be fined in any sum not exceeding $100.00. Every day that such person shall work upon such building, or permit the same to remain standing after completion thereof, shall constitute an offense within the meaning of this chapter." It was also alleged that said building greatly jeopardized, endangered, and exposed to fire adjacent buildings and those in the vicinity thereof, and will increase the rate of insurance on said buildings by reason of its construction not being fireproof, and that said building constitutes a nuisance. The defendants answered by demurrer, general denial, and allegation that the building in question was a fireproof building. Upon a trial before the court judgment was rendered for defendants, from which the city of Brenham appealed.

The trial court filed findings of facts as follows: "The city of Brenham is, and was, incorporated under the articles of the Revised Statutes with reference to the incorporation of towns and cities containing less than 10,000 population. Prior to the matters complained of in plaintiff's petition, the city, by ordinance, established fire limits in said city as set out in plaintiff's petition. The city passed an ordinance, described in plaintiff's petition as follows: `Ordinance No. 113. —Each and every building of every kind or size erected by any person, within said limits, shall have its walls and roofs constructed of fireproof material, using for walls, brick, stone or concrete, and roofs of tin, slate or iron.' Which ordinance had reference to the erection of buildings within the fire limits established by the city, and took effect on the 4th day of March, A. D. 1911. The affidavit of the publication of said ordinance was made on the 6th day of September, A. D. 1911, after this suit was brought. Ordinance No. 115, described in plaintiff's petition, made it an offense, punishable by fine of $100, for violation of said ordinance. The defendants on the lot described in said petition, and within the fire limits of said city, after having been notified not to do so by the mayor of the plaintiff, did erect thereon a small building in the nature of a shed room, the south wall of which was the brick wall of the adjoining building, and the remainder being of sheet iron on the outside; the framework being wooden studdings set upon a brick foundation. There were two openings to said building, one on the east and one on the north, which were also covered on the outside by sheet iron. The roof of said building was also made of sheet iron." The court concluded that ordinance No. 113 was in conflict with article 523 of the Revised Civil Statutes of 1895, in so far as it designated the materials out of which buildings should be constructed, and that the material used in the building in question was fireproof material—that is, such as would exclude or resist ordinary fires—wherefore he held that the defendant was entitled to judgment. The learned trial judge was of the opinion that by said article 523 the city was only authorized to pass an ordinance forbidding the erection of buildings within the fire limits not made of fireproof material.

By appropriate assignments appellant attacks the finding that the material used in the building in question was fireproof material—that is, such as would exclude or resist ordinary fires—and the conclusion of law that the city had exceeded its authority in passing said ordinance 113. The validity of ordinances, like the one in question, passed pursuant to said article 523, has not been passed upon by any of our courts so far as we are informed or can ascertain, except by the Court of Criminal Appeals, in which their validity was sustained by a divided court. Ex parte Morris, 56 Tex. Cr. R. 533, 120 S. W. 1007. Article 523 reads as follows: "The city council, for the purpose of guarding against the calamities of fire, may prohibit the erection, building, placing, moving or repairing of wooden buildings within such limits within said city as they may designate and prescribe; and may within said limits prohibit the moving or putting up of any wooden building from without said limits, and may also prohibit the removal of any wooden building from one place to another within said limits, and may direct, require and prescribe that all buildings within the limits so designated and prescribed as aforesaid shall be made or constructed of fireproof materials, and to prohibit the rebuilding or repairing of wooden buildings within the fire limits when the same shall have been damaged to the extent of fifty per cent. of the value thereof, and may prescribe the manner of ascertaining such damage; may declare all the dilapidated buildings to be nuisances and direct the same to be repaired, removed or abated in such manner as they shall prescribe and direct; to declare all wooden buildings in the fire limits which they deem dangerous to contiguous buildings, or in causing or promoting fires, to be nuisances, and require and cause the same to be removed in such manner as they shall prescribe." The succeeding articles authorized the city council to prevent and prohibit the dangerous condition of chimneys, flues, fireplaces, stoves, ovens, or other apparatus used in or about any building; to prevent deposits of ashes; to appoint officers to inspect premises; to require the inhabitants to keep and provide fire buckets and ladders; to regulate or prevent the carrying on of manufactories and works dangerous in promoting or causing fires; to prohibit or regulate the building of cotton presses and sheds; to regulate or prevent and prohibit the use of fireworks and firearms; to direct, control, or prohibit the keeping and management of houses or any buildings for the storing of gunpowder and other combustible, explosive, or dangerous materials; to regulate the keeping and conveying of the same; to regulate and prescribe the manner and to order the building of parapet and party walls; to compel the owners or occupants of houses or other buildings to have scuttles in the roof and stairs or ladders leading to the same; to authorize the mayor or other officers or fire officers to keep away from the vicinity of any fire all idle, disorderly, and suspicious persons, and arrest and imprison the same; and to compel all officers of the city and all other persons to aid in the extinguishment of fires and the preservation of property. Then follows article 533, as follows: "And generally to establish such regulations for the prevention and extinguishment of fires as the city counsel may deem expedient." Article 534 authorizes the procurement of fire engines and other apparatus, and the organization of fire companies. Article 535 authorizes the destruction of a building when necessary to prevent the spreading of fire. All of the above provisions are a part of the act of March 15, 1875 (Laws 1875, c. 100), providing for the incorporation of cities and towns of 1,000 inhabitants or over. It is evident that in making such provisions the Legislature intended a liberal grant of power to cities and towns with respect to the prevention of loss by fire. Article 523 authorizes an ordinance requiring and directing that all buildings within the fire limits be made or constructed of fireproof materials.

We do not understand that when a grant of power is made by the Legislature, an ordinance in pursuance thereof must be in the very language of the statute, nor that all the power contained in such grant must necessarily be exercised. Where authority is given to require the entire building to be made of fireproof materials, an ordinance requiring the walls alone to be made of such material would be authorized because it would not exceed the grant of authority. But the question is whether an ordinance requiring the walls to be built of certain materials does not...