City of Everett v. Unsworth, 34909

• Decision Date: 08 October 1959
• Docket Number: No. 34909,34909
• Citation: 54 Wn.2d 760,344 P.2d 728
• Parties: CITY OF EVERETT, Respondent, v. George W. UNSWORTH, Appellant.
• Court: Washington Supreme Court

Page 760

54 Wn.2d 760

344 P.2d 728

CITY OF EVERETT, Respondent, v. George W. UNSWORTH, Appellant.

No. 34909.

Supreme Court of Washington, Department 1.

Oct. 8, 1959.

George Unsworth, in pro. per.

Leslie R. Cooper, William F. Ingram, Everett, for respondent.

ROSELLINI, Judge.

The appellant was charged, in justice court, with the offense of failure to comply with an order of the municipal judge of the police court of the city of Everett. Under the order issued after a fire had occurred in an apartment building of which appellant was the contract purchaser, he was required to remove a chimney in the building to the bottom of the flue or flues, and so much further as was necessary to reach solidly-placed, well-mortared bricks, and so that the chimney would be removed from contact with any portion of the building bearing on or against it. He was found guilty, and appealed to the superior court, where a jury likewise returned a verdict of guilty.

In accordance with Everett city ordinance No. 3414, the court imposed a fine of $25 and costs.

The appellant represented himself in the trial court and has conducted his own appeal. The transcript is incomplete and there is no record of the evidence taken at any stage of the proceedings. The statement of facts does not contain any reference to the exhibits. However, considering the fact that the appellant is here without benefit of counsel, we will answer his 'questions,' which he characterizes as 'assignments of error,' insofar as we can upon the limited record before us.

The respondent contends that the judgment should be affirmed because the appellant has not set forth a concise statement of points upon which he intends to rely on this appeal, as required by Rule on Appeal 34(3), RCW Vol. O, and has failed to include in the statement of facts any of the exhibits introduced at the time of trial. With one exception, the errors complained of cannot be considered for these reasons.

The first assignment, however, raises a question of law. In this assignment, he contends that ordinance No. 3414 gives the municipal court authority to abate a nuisance, and that under the state constitution, amendment 28, such jurisdiction is vested exclusively in the superior court. The ordinance is included in the exhibits brought to this court and is identified in the judgment, therefore, it is before the court for consideration. Zarelli v. Superior Distributing Corp., 51 Wash.2d 154, 316 P.2d 465; State ex rel. Potter v. Maybury, 161 Wash. 142, 296 P. 566.

Everett, a city of the first class, is empowered by RCW 35.22.280(24):

'To establish fire limits and to make all such regulations for the erection and maintenance of buildings or other structures within its corporate limits as the safety of persons or property may require, and to cause all such buildings and places as may from any cause be in a dangerous state to be put in safe condition.'

In the exercise of this power, it enacted ordinance No. 3414, providing for the establishment of a bureau of fire prevention, providing officers therefor and defining their powers and duties, and prescribing regulations for fire prevention and life safety in connection with hazardous materials and processes. The ordinance provides, inter alia:

'Section 107: The Chief of the Fire Department, Chief of the Bureau of Fire Prevention or an Inspector upon the complaint of any person or whenever he or they shall deem it necessary, shall inspect all buildings and premises within their jurisdiction. Whenever any of said officers shall find any building or other structure which, for want of repairs, lack of sufficient fire escapes, automatic or other fire alarm apparatus or fire extinguishing equipment or by reason of age or dilapidated condition, or from any other cause, is especially liable to fire, and which is so situated as to endanger other property or the occupants thereof, and whenever such officer shall find in any building combustible or explosive matter or flammable conditions dangerous to the safety of such building or the occupants thereof he or they shall order such dangerous conditions or materials to be removed or remedied in such manner as may be specified by the Chief of the Bureau of Fire Prevention.

'Sections 108: * * * Any such order shall forthwith be complied with by the owner or occupant of such premises or building. If such order is made by the Chief of the Bureau of Fire Prevention or one of the Inspectors, such owner or occupant may within twenty-four hours appeal to the Chief of the Fire Department, who shall, within five days, review such order and file his decision thereon, and unless by his authority the order is revoked or modified it shall remain in full force and be complied with within the time fixed in said order or decision of the Chief of the Fire Department.

'Provided, however, that any such owner or occupant may, within five days after the making or affirming of any such order by the Chief of the Fire Department, file his petition with...