City of Sylvania v. Hilton
| Decision Date | 04 August 1905 |
| Citation | 51 S.E. 744,123 Ga. 754 |
| Parties | CITY OF SYLVANIA v. HILTON. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
If a municipal ordinance prohibiting buildings of a certain character from being erected within prescribed fire limits is not clear, but of ambiguous or doubtful meaning, it is competent to show what has been the ordinary construction placed upon it by the municipal authorities, in order to aid in its proper construction; but, if the meaning of an ordinance is plain and unambiguous, the fact that it may have been repeatedly violated without objection on the part of the municipal officers will not alter its meaning, or furnish any defense to one who afterwards violates it.
A building constructed by erecting a wooden frame, and covering it on the outside with sheets of corrugated iron, the interior, including the flooring, ceiling, etc., being entirely of wood, does not meet the requirements of a municipal ordinance which declares that within certain fire limits all buildings shall be constructed of brick, stone, or other incombustible material, and covered with tin or metallic or fireproof roofing.
It was error to grant an injunction against municipal officers to prevent them from enforcing such ordinance against the building of a structure such as that described in the preceding headnote.
In so far as the ordinance is criminal in its nature, the owner of the house being built can assert his rights by defense against a prosecution under such ordinance.
Error from Superior Court, Screven County; B. L. Rawlins, Judge.
Action by L. H. Hilton against the city of Sylvania. Judgment for plaintiff, and defendant brings error. Reversed.
Where a municipal ordinance prohibiting buildings of a certain character from being erected within the fire limits is of ambiguous meaning, it is competent to show the ordinary construction placed upon it to aid in its construction, but if its meaning is unambiguous, that it may have been repeatedly violated without objection will furnish no defense to one who violates it.
L. H Hilton filed his equitable petition against the mayor and council and marshal of the city of Sylvania, alleging as follows: Under the act of February 20, 1875 (Acts 1875, p 186), the town of Sylvania, which had been chartered under the general law of the state and located in the county of Screven, was reincorporated, to be governed and controlled by sections 774 to 797 inclusive of the Code (now sections 684 to 710 of the Political Code of 1895); and under an act of the Legislature approved December 12, 1902 (Acts 1902, pp 636, 637), it was made the city of Sylvania, the laws and ordinances of the town being left in force and made applicable to the city. On January 7, 1897, the main business block and business portion of the town was destroyed by fire and immediately thereafter, on January 13th, an ordinance was passed of which the following are the material portions:
The plaintiff alleged that the purpose and intention of the ordinance was to require buildings thereafter erected in the fire limits, if framed or constructed of wooden material, to be covered on the outside with some incombustible material or substance, such as tin or iron, and that such construction, from the passage of the ordinance to within a few days prior to the filing of the petition, had been placed on the ordinance by the mayor and council, by permitting and allowing a number of buildings to be erected within the fire limits since the ordinance was passed. Two persons, one of whom was a member of the council, were preparing to erect buildings to be framed of wood covered with sheet iron, and the mayor and council were not making any effort to prevent this, and never contended that such buildings were prohibited by the ordinance until very recently, when plaintiff was about to erect a small restaurant within the fire limits, to be so framed of wooden material and covered on the outside with corrugated iron, an incombustible material or substance. The restaurant which was being erected was to be leased to a colored woman, which met with the disapproval of the mayor and council, and for that reason alone they were endeavoring to prevent him from erecting the building. On March 6, 1905, at a called meeting, and without notice to him or giving him a chance to be heard, they had passed an ordinance declaring the building to be a nuisance, and ordering it to be removed immediately, and served notice upon him that unless he removed it they would cause it to be done. In February, 1905, the marshal, under order of the mayor, arrested him for violating the ordinance, and without a trial imposed a fine of $10 on him, to which sentence he had entered an appeal to council as provided by the ordinances. Section 4 of the ordinance under which the fine was imposed is void, because the mayor and council cannot impose a fine exceeding $50, nor imprison more than 30 days, and such imprisonment can only be in the alternative, while the ordinance seeks to provide a fine exceeding $50, and provides for a fine and imprisonment at the same time. Plaintiff contends that the building was not in violation of the ordinance. If defendants are allowed to tear down the building as they are threatening to do, and continue to harass him, he will be irreparably damaged. He prayed that they be enjoined from tearing down or interfering with the erection of the building, and from enforcing the prosecution against him for a violation of the ordinance.
The defendants' answer was, in brief, as follows: They admitted the incorporation of the city and the passage of the ordinance. They denied the construction placed by the plaintiff thereon. "These defendants answer that they are not bound by the construction put upon the ordinance by other city authorities, or by any mayor or council of Sylvania, which has been in authority heretofore; and, while the present city authorities think that some of the buildings mentioned in said fifth paragraph of petitioner's petition were erected not in compliance with said ordinance and in violation of same, that the proper construction of these buildings is not now under consideration, and has no bearing upon the determination of the present case." They admit that two persons are erecting buildings within the fire limits in violation of the ordinance, but deny that they expect to allow such buildings to be completed in that manner. When plaintiff was about to begin erecting, or had just erected, the pillars upon which he expected to construct a small restaurant within the fire limits in violation of the ordinance, in order to save him from loss they notified him of their construction, and of their intention to prevent him from building it, "not entirely for the reason that he expected to lease said restaurant to a colored woman whose past conduct in the town they did not approve of, but for the additional reason that the building of a restaurant in the main business block, and right in the rear of a number of mercantile establishments, and where combustible substances were liable to be ignited by sparks from said restaurant, and cause danger from fire to be considerably increased." They admit the passage of the order declaring the building to be a nuisance and directing it to be removed, but deny that it was necessary to give him notice before doing so, as he knew well the meaning of the...
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