City of Manchester v. Webster

• Decision Date: 31 January 1957
• Citation: 128 A.2d 924,100 N.H. 409
• Parties: CITY OF MANCHESTER v. Leon H. WEBSTER et al.
• Court: New Hampshire Supreme Court

Page 924

128 A.2d 924

100 N.H. 409

CITY OF MANCHESTER v. Leon H. WEBSTER et al.

Supreme Court of New Hampshire.

Argued Dec. 4, 1956.

Decided Jan. 31, 1957.

J. Francis Roche, City Sol., Manchester, for plaintiff.

McLane, Carleton, Graf, Greene & Brown, Stanley M. Brown, Manchester, for defendants.

Craig & Craig, Chretien & Chretien, Manchester, Joseph V. Stancik, Derry, for the remaining defendants.

BLANDIN, Justice.

The defendants do not now contend that the Building Code ordinances and the general revisions of 1930 and 1950 were not validly enacted, and the parties agree that the basic issue is whether the Building Code applies to automotive trailers. The test to determine whether it does is to inquire what the City Council intended when it passed the ordinance. Concord v. Morgan, 74 N.H. 32, 64 A. 725. The interpretation of the meaning of the ordinance is for this Court. Walsh v. Public Service Co., 92 N.H. 331, 30 A.2d 494. However, the findings of fact which the Trial Court has made with respect to the enactment of the ordinance and which we find supported by the record, must be accepted. See Pettee v. Omega Chapter, 86 N.H. 419, 423, 170 A. 1, 171 A. 441. These findings in substance are as follows: In 1911 when the Building Code, which so far as material here remains unchanged, was first enacted trailers were unknown although portable school houses were exempted from the code. See General Revision 1930, s. 595; General Revision 1950, s. 520. Neither in the original ordinance nor in the subsequent revisions were trailers referred to in any manner. From 1941 on, the Superintendent of Buildings in the City of Manchester knew that trailers were coming into the city and 'being set up and being lived in' but he took no action until October, 1950. Parenthetically it should be noted here that while the construction placed on the applicability of the Building Code by those charged with its execution is not conclusive, the fact that for nearly ten years the code was apparently considered not applicable to trailers is entitled to great weight. Wyatt v. State Board of Equalization, 74 N.H. 552, 569, 70 A. 387. Furthermore, as the Court found, prior to October, 1950, permits to establish trailer camps, to enlarge and remodel trailers, to connect them with public sewers and water mains, and to install them in various places were granted by the building inspector after approval by the Board of Adjustment. Relying upon the permits some of the owners, including the defendant Hill, spent large sums of money in purchasing, installing and improving trailers or setting up trailer camps which they otherwise would not have done. In September, 1952, the city first passed an ordinance specifically regulating automotive trailers. This enactment makes no provision for the construction of trailers other than as the defendants' trailers are built, but it is impossible for the defendants 'to meet many, if not all, of the specifications of the Building Code' as applied to buildings. On these findings, the Court concluded that it was not the intention of the City Council when it passed the ordinance to apply the code to trailers and ruled accordingly that it was not applicable. State v. Downes, 79 N.H. 505, 112 A. 246. With this interpretation of the ordinance we are content. Hogan v. Lebel, 95 N.H. 95, 58 A.2d 321.

It is true as the plaintiff argues that courts in other jurisdictions have reached different conclusions in such cases as Aetna Life Ins. Co. v. Aird, 5 Cir., 108 F.2d 136, 125 A.L.R. 1436, where the question was whether a trailer used as a home and office was a building within the meaning of a double indemnity insurance policy. See also Town of Franklin v. Metcalfe, 307 Mass. 386, 30 N.E.2d 262, a case involving the interpretation of a tax statute. In Tomuschat v. Aachen & Munich Fire Insurance Co., 77 N.H. 388, 92 A. 329, there was an action based on a fire insurance policy and the Court...