City of Mayville v. Rosing
| Decision Date | 06 November 1909 |
| Citation | 123 N.W. 393,19 N.D. 98 |
| Court | North Dakota Supreme Court |
Appeal from District Court, Traill County; Pollock, Judge.
Action by the City of Mayville against C. A. Rosing. Judgment for plaintiff, and defendant appeals. Reversed and action dismissed.
Judgment reversed, and action dismissed.
Engerud Holt & Frame, for Appellant.
To constitute a new building there must be a substantial addition of material parts. Miller v. Hershey, 59 Pa. 64; Driesbach v. Kellar, 2 Barr. 79; Landis' Appeal, 10 Barr. 379; Armstrong v. Ware, 20 Pa. 519 8 Harris, 519; Combs v. Lippincott, 35 N.J.L. 481; City Council v. L. & N. R. Co. (Ala.), 4 So. 626; Booth v. State, 4 Conn. 65; Tuttle v State, 4 Conn. 68; Kaufmann v. Stein, 37 N.E. 333; 13 Am. & Eng. Encycl. of Law (2d Ed.) at page 398.
Penal Statute and ordinance cannot be extended by construction beyond the letter of the act. 13 Am. & Eng. Encycl of Law, page 398; 2 Abb. Mun. Corp., Sec. 566; Daggett v. State, 4 Conn. 60; U. S. v. Booker, 98 F. 291; Folson v. Kilbourne et al., 5 N.D. 402, 67 N.W. 291.
F. W. Ames, for Respondent.
A new building need not be distinct from, nor independent of an old one, to be deemed a building erected. 3 Words & Phrases, 2452; Nelson v. Campbell, 28 Pa. 156; Harmon v. Cummings, 43 Pa. (7 Wright) 332; Deleone v. Long Branch, etc., 25 A. 274, 55 N.J.L. 108; 3 Words & Phrases, 2452; Dreerbach v. Keller, 2 Pa. 77, 79; 3 Words & Phrases, 2452.
Material alteration and enlargement is building within the meaning of the ordinance. People v. Marley, 2 Wheeler's Crim. Cases 74; Douglass v. Commonwealth, 2 Rawl's Rep. 262; Carroll v. Lynchburg, 6 S.E. 133; People v. Sweetser, 1 Dak. 308, 46 N.W. 452.
The intention of the legislature must govern in penal as in other statutes, and the obvious legislative will is not to be defeated by construction. U. S. v. Williams, 119 F. 310; In Re Coy, 31 F. 794; Case, Bell Crown Cas. 45; Daniels v. State, 50 N.E. 74.
If a case comes within the spirit and reasonable interpretation of the letter it is sufficient. State v. Goodwin, 82 N.E. 459; State v. Kiley, 76 N.E. 184; Johnson v. So. P. Co., 25 S.Ct. 158, 49 L.Ed. 363; State v. Roby, 142 Ind. 168, 41 N.E. 145; 33 L.R.A. 213, 51 Am. St. Rep. 174; Conrad v. State, 75 Ohio St, 52, 78 N.E. 957, 6 L.R.A. 1154.
The defendant was convicted of violating a city ordinance declaring it unlawful for any person "to construct any wooden building within such limits" (fire limits), and further declaring that "all buildings hereafter erected therein shall be built of brick, stone or other fireproof material," and has appealed from a judgment against him imposing a fine of $ 100 for a violation of such ordinance and costs, and said judgment further provided that the defendant should be imprisoned until such fine was paid, as provided by statute in cases of nonpayment of fines. Before the enactment of this ordinance, the defendant built a one-story wooden building with a sky-light raised at one end thereof higher than the other parts of the roof. The building, as thus erected, was about 42 feet in length, and 24 feet 8 inches in width, and about ten feet in height at the highest part outside of the skylight part, which was about 17 feet high at its highest point. The sides of this building were not of equal height, and the roof was, in consequence of this fact, slanting. After the ordinance was passed, defendant made changes in the building as follows: The roof, with the skylight, was removed, and the building raised in height, except at the front. On the rear 16 feet of the upper part of the building was an addition with a peaked roof. This addition is 16 feet long, and the height is about 17 feet to the peak of the roof from the ground and about 12 feet to the base of the roof. By this change one side of the building was made about 3 1/2 feet higher than before, and the other was made about 7 1/2 feet higher. As stated before, the height of the original building was irregular, and it was made of the same height by the change. The peaked roof part at the rear of the roof of the building was divided into four rooms for sleeping room purposes. The front was not changed as to height or appearance. The only change in the appearance of the sides was that made by reason of the increased height.
The sole question presented on the appeal is whether the acts of the defendant in thus changing the character of the building were within the prohibition of the ordinance against the construction of wooden buildings, as it is conceded that the material used in the building was not fireproof. The ordinance is penal in its character, and a violation of its terms is followed by a fine of $ 100 and costs, and, if the fine is not paid, the offender may be imprisoned under the provisions of section 10104, Revised Codes 1905. The city contends for a liberal construction of the provisions of the ordinance. Defendant contends for a strict construction thereof, in view of its penal character. We do not think it material whether sections 10313 and 8538, Revised Codes 1905, calling for a liberal construction of the provisions of the Penal Code and Code of Criminal Procedure, or whether the rule of common law, calling for a strict construction of penal statutes and actions for a penalty, shall govern. The result must be the same in this case.
Conceding that the provisions of the ordinance are to be liberally construed, we do not think that the judgment of the district court should stand, in view of other provisions of the code. This rule of liberal construction does not do away with the fact that the defendant must be shown to have violated the ordinance. The Code authorizes the city to enact ordinances of this kind and to provide penalties for violation thereof but such acts are not subject to such penalty until ordinances are enacted pursuant to such statutory authority and the terms thereof have been violated. It is elementary that the terms of the ordinance must be such as to include the defendant's acts before the penalty can be rightfully imposed upon him. This is so whether the proceeding under which it is imposed be deemed civil or criminal in its character. The ordinance forbids the construction of wooden buildings. Is repairing or remodeling or enlarging a building always to be regarded, under this ordinance, the same as building it in the first instance? Clearly not, or the most insignificant change in a structure would subject one to a penalty. On the other hand, if four or five stories be added to a one-story building, will that always be deemed simply repairing, or enlarging within the ordinance? Clearly not. It is difficult, however, to state what facts, so far as changes in buildings are concerned, will constitute a violation of this ordinance. No fixed rule can be laid down stating what is to be deemed a "new building" or a "repairing." There are no definite rules laid down in the precedents or cases on this point. The nearest that has been found is in State v. Long Branch Commissioners, 55 N.J.L. 108, 25 A. 274, a case based on a city ordinance similar to the one under consideration. In that case the court approved the rule laid down in Armstrong v. Ware, 20 Pa. 519, a mechanic's lien case. In the New Jersey case this language was approved, from Combs v. Lippincott, 35 N.J.L. 481: "While it must be admitted that a building may be greatly changed in structure, in the materials which enter into it, and in its internal arrangements, without at all losing its identity or ceasing to be the same building, it can hardly be denied, I think, that it may be so entirely changed in plan, in structure, in dimensions, and in general appearance as to become, in a fair sense and according to the common understanding of men, another building, a new building." In addition to this, the court said, in State v. Long Branch Commissioners, supra: Under the facts of that case, the changes in the building were much greater than in this case, and were as follows: The building was originally one story and an attic in height, 14...
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