City of Charleston v. Reed.

• Decision Date: 20 February 1886
• Citation: 27 W.Va. 681
• Parties: City of Charleston v. Reed.
• Court: West Virginia Supreme Court

27 W.Va. 681

City of Charleston

v.Reed.

Supreme Court of Appeals of West Virginia.

Submitted January 26, 1886.

Decided February 20, 1886.

1. A municipal corporation possesses and can exercise the following powers and no others: first, those granted by express words in its charter as the general statute under which it is incorporated; second, those necessarily or fairly implied in or incident to the powers thus expressly granted; and third, those essential to the declared purpose of the corporation, not simply convenient but indispensable, (p. 688.)

2. A city-charter conferring power upon a city-council uto make regulations for guarding against damage or damages from fires," authorizes the council to make an ordinance establishing fire-limits and prohibiting the erection of wooden buildings within such limits, (p. 693.)

3. In a case brought to the Appellate Court to test the validity of an ordinance prohibiting within the fire-limits of a city the erection of houses, unless the same are built of" brick, iron, stone or concrete," which case shows, that the plaintiff in error has been fined for building a wooden building within said (ire-limits, the Appellate Court will not consider, whether the ordinance was void, because it prohibited the erection of other buildings within the lirelimits than those specified in the ordinance. It is certainly good, so lar as it prohibits within said limits the erection of wooden buildings, (p. 694.)

4. A building constructed of wood with its sides covered with sheetiron three sixty-fourths of an inch thick inside and out, is not an " iron " building within the meaning of an ordinance which permits the erection of an "iron" building but prohibits the erection of a wooden one covered with sheet-iron. (p. 894.)

5. Punctuation must yield to the manifest intention of council expressed in an ordinance, (p. 696.)

6. The fact that other citizens of acity had built houses in violation of a city-ordinance, against whom no complaint had been made, or proceedings had, will not estop the city authorities from punishing the violation of the ordinance, whenever complaint is made. (p. 696.)

Kenna fi Chilton for plaintiff in error.

W. A. Quarrier for defendant in error.

Johnson, President:

Mrs. Theresa Reed was having constructed in the city ot Charleston in the interior of the square bounded by Kanawha street, Capitol street, Virginia street and Summers street, on her lot, which fronts on Virginia street, a building constructed in the following manner: It is two stories high, made of wooden studding, with a sheeting root. A]l the sides of said building are to be covered with sheet iron. It is to be lined inside with sheet iron. The roof is to be covered with sheet iron. The bottom floor is dirt and to be filled up to cover the sills. The upper floor is to be constructed of wood overlaid and underlaid with sheet iron. The entire building both inside and outside is to be covered with sheet iron, and the building is to have no windows. At the time the facts were agreed, and from that agreement this statement is made, the building was so far constructed that the entire wooden frame was finished, and the wooden portion of the root, the sheeting, was completed. The buildingis eighty feet long thirty five feet wide, and twenty one feet high. On the square, where it is being constructed, the Kanawha street front is entirely covered with buildings. Capitol street front is entirely covered with buildings; Summers street front is almost covered with buildings, all of which are constructed in accordance with the fire-ordinance of the city. The rear ot all these buildings in the square closely approach the Reed building, the nearest being that of J. C. Arnold, which is four feet six inches therefrom. The rest of the buildings in said square vary from sixteen, to sixty feet distance therefrom. All the buildings on the square are occupied by wholesale and retail merchants. A plot of the square is filed with the agreement of tacts and shows the position ot each of said buildings relatively to the Reed building.

On Saturday the 22nd August, 1885, the defendant, Reed, was notified to stop the construction of the building, which she refused to do; and when the trial commenced, a large number of hands were at work on the building. She claimed a permit from the city-council to construct the building. Her petition to council was as follows:

"Your petitioner Mrs. Theresa Reed respectfully prays, that she be allowed to build a warehouse on her lot on Virginia street in said city 80 feet long by 35 feet wide in accordance with the fire-ordinance and the amendments thereto.

"Theresa Reed.

"By Counsel

The prayer ot the petitioner was granted by a vote of four to three. There was no other permit granted to her. The ordinance ot the city as to protection against fire, which was in the agreement of facts is as follows:

"Ordinance of October 31, 1879, amending and re-enacting an ordinance entitled: 'An ordinance defining the city-firelimits.

"Be it ordained by the common council of the city of Charleston.

"Section 1. That the ordinance entitled ' An ordinance defining the city fire limits' be and the same is hereby amended and re-enacted so as to read as follows: From and after the adoption of this ordinance, no new building or extension of old ones, shall be erected within the limits hereinafter described, except they7 be built of either brick, stone, iron or concrete, with fire-proof roof. The limits above referred to shall be known as the fire limits." * * Then follows the boundary including the Reed building.

"Section 2. In all cases where provisions of this ordinance are being violated, the mayor shall have the power to stop the work of building or extending until the matter can be brought before the common council.

"Section 3. Any person violating the provisions of this ordinance, shall, upon conviction thereof be fined in a sum not exceeding one hundred dollars,

"Section 4. (Repeals all ordinances in conflict with this.)"

The ordinance of August 3, 1883, is entitled, "An ordinance defining more strictly the fire-ordinance" and is as follows:

"Be it ordained by the common council of the city of Charleston, that the fire ordinance shall be so construed and understood as to prohibit, the erection within the fire-limits of the city of any wooden houses covered with tin or iron."

The last ordinance is dated October 26, 1883, and is as follows: "An ordinance prescribing the conditions upon which outbuildings, other than coal houses and privies, may be erected within the city fire-limits:

"Be it ordained by the common council of the city of Charleston, that hereafter it shall be lawful to erect within the city fire-limits, after first obtaining a permit therefor, outbuildings other than coal houses and privies not exceeding 10x15 feet in outer dimensions, provided the same be covered by tin or sheet iron nailed on studding, and provided further that the same be built not closer to the adjacent street or premises than ten feet, unless in the latter case the owners of said adjacent premises consent that the distance herein prescribed may be less."

The agreement of facts embraced also the following, that there was given in evidence a plat and certificate made by the city-engineer in regard to the character, material and structure securing buildings in fire-limits of said city. * * Also there was read in evidence the permits of the city mayor and council, under which the buildings mentioned in said plat and certificate were constructed, which permits were as follows: * * * No permits except that to the defendant, Theressa Reed, accompany the certificate of the facts agreed. There appears a paper from the city-engineer, which is by agreement of the parties made a part ot the records in which he shows the manner of the construction of a number of houses within the fire-limits of the city of Charleston, by which it appears, that in the Reed warehouse the underside of the second floor and the underside of the roof will be covered with sheet iron of the same weight and thickness as the sides, inside and out, and the roof; thickness of iron about three sixty-fourths of an inch, No. 27 stove pipe iron, same as employed in other warehouses.

That the Skees building corner of Capitol and Virginia streets is a brick building with mansard roof. The framework of the root and the interior of the building are of wood; the partitions of frame; studding 244 standing upright covered with plastering. Root covered with tin. There is an elevator in the rear of this building beginning at the level of the street, and extending to the top of the roof three stories. This elevator is a framework of wood covered with ordinary sheet iron. Elevator was built in 1881. All the window frames are ot wood, the latter being exposed to view from the outside.

O. H. Michael eon's warehouse on Virginia street is in the rear of M. H. May's residence sixty-two feet from it and eight feet from Mr. Wiseman's stable and twenty-eight feet from his house. The building is now under construction; when completed it will be 60x36 feet, two stories high and have a one story shed attached 36x14 feet. The building will be covered on top with sheet iron of the ordinary weight, and on the sides with corrugated iron. Will be occupied as a warehouse for machinery. The framework of the building is of wood built in the ordinary way. On this the sheet iron will be nailed.

Ruffner Bros', warehouse on Virginia street is a frame structure covered with sheet-iron. The wood-work ot the interior is all exposed to view. The iron covering the top and sides is of the thickness ot ordinary stove-pipe. It stands ninety-five feet from Ruffner Bros', store, 47 1/2 feet from Mrs. Scott's dwelling, ninety-five feet from another residence, and ninety six feet from the Skees building; was erected in 1884; is 30 1/2x30, six feet high at the eaves.

Grates & Co's. is 30x25 feet and eight teet high...