McCray v. City of Chicago

• Decision Date: 07 April 1920
• Docket Number: No. 12770.,12770.
• Parties: McCRAY et al. v. CITY OF CHICAGO et al.
• Court: Illinois Supreme Court

292 Ill. 60

126 N.E. 557

McCRAY et al.

v.CITY OF CHICAGO et al.

No. 12770.

Supreme Court of Illinois.

Feb. 18, 1920.

Rehearing Denied April 7, 1920.

Bill for injunction by Adam McCray and others against the City of Chicago and others. From a decree of dismissal for want of equity, the complainants appeal.

Reversed and remanded.Appeal from Superior Court, Cook County; Charles M. Foell, judge.

Cutting, Moore & Sidley, Guy Van Schaick and Edward H. Stearns, all of Chicago (Charles S. Cutting, of Chicago, of counsel), for appellants.

Samuel A. Ettelson, Corporation Counsel, of Chicago (Leon Hornstein, of Chicago, of counsel), for appellees.

CARTER, J.

This is an appeal from a decree of the circuit court of Cook county, dismissing for want of equity a bill for injunction filed by appellants, seeking to restrain the enforcement of an ordinance of the city of Chicago as to the use of certain material other than wood lath and plaster as a lining for walls and ceilings. The trial judge certified that the validity of an ordinance was involved, and the cause was one involving public interests, and should be taken direct to this court. This appeal followed.

The principal, if not the only, question involved is the reasonableness of section 605 of the Chicago Code of 1911. That portion of the ordinance necessary to be construed to reach a proper conclusion on this question reads as follows:

‘605.- Wood Lathing and Plastering. (a) In all buildings of ordinary construction, where the use of wood lath and plaster is permitted under the provisions of this chapter, such wood lath and plaster shall be done in accordance with these specifications: Wood lath shall not be over one and one-half inches wide, and shall be nailed to each stud, joist or bearing with not less than a threepenny fine 16-gauge nail; lath to have joints broken with not over seven lath to a break; lath to be spaced not less than onefourth of an inch apart. All wood lath must be covered with at least two coats of plaster, such lath and plaster to finish to a total thickness of at least seven-eighths of an inch; no dirty or loamy sand to be used in the mortar or plaster.

‘(b) In every building of ordinary construction which contains one or more rooms used for habitation or living purposes, the walls and ceilings of all rooms, including stores (except basement and the attic rooms not used for habitation or living purposes), throughout the building shall be covered with not less than two coats of plaster of the thickness and quality hereinbefore in this section prescribed.’

The complainants, husband and wife, are the owners of a lot in Chicago on which they were erecting a building the walls and ceilings of which were being lined with material known as ‘Preferred Bestwall’ three-eighths of an inch thick. They were ordered by the building commissioner of Chicago to cease work in putting this material on the walls and ceillings, and according to the allegations of the bill he threatened the arrest of the workmen unless they discontinued the use of Bestwall and used in place thereof wood lathing and plaster. As a result of the city's action appellants allege that they have been deprived of the right to use Preferred Bestwall in their building, to their great detriment and loss.

Bestwall is a standard and well-known product manufactured by the Bestwall Manufacturing Company, a corporation licensed in Illinois, its material being sold widely throughout the country as an alternative or substitute for lath and plaster. The evidence in the record shows that it has been indorsed and recommended, after a thorough and complete examination, by the officials of the Underwriters' Laboratories, the Armour Institute of Chicago, and other institutions; that it has been passed upon favorably by the United States Bureau of Standards, United States Shipping Board, and United States Industrial Housing Board, these bodies holding that it is a satisfactory and complete interior finish for walls in the place of lath and plaster; that it has been extensively used by the War Department, Navy Department, and Ordnance Department of the United States government in hospitals and other government buildings. The evidence also tends to show, by parties well informed as to different wallboards on the market, that Preferred Bestwall, is as good a fire retardant, and has as good noncombustible qualities as lath and plaster. Some of the witnesses testified that it had better qualities; that it had greater strength and was more impervious to and had greater resistance against water, moisture, and wind; that it was a better conservator of heat, and did not crack or deteriorate as rapidly; that it was not as subject to discoloration, was more sanitary and less liable to harbor vermin; that it was kiln-dried, and did not require drying out before use after being in place, and was less expensive and required less labor to install than lath and plaster. The evidence also shows that Preferred Bestwall three-eighths of an inch thick is composed of a core of calcined gypsum mixed with about 15 per cent. of sawdust, compressed between two sheets of very strong, tough paper, so sized that it is practically waterproof and of such a character that it will not readily support combustion. It is mixed and pressed out by machinery and cut to the required sizes of 4 feet wide by 7, 8, 9, and 10 feet long, and dried in kilns. The outside of the paper covering is made as hard and dense as possible, while the inner surface is specially prepared, so that the fibers inhere in the mass of gypsum as it crystallizes in drying, with the object of making a union unaffected by water or moisture. Bestwall is nailed directly to the studding or ceiling joists or strips on brick walls, preferably with threepenny nails. The joints are left not less than a quarter of an inch open. All ends are supported by headers, so that every joint is nailed to something firm, either a joist header, or, in the case of a brick or outside wall, to ribbon laid into the outside studding. The joints are then filled with a preparation which goes with the board, the filling being done with ordinary tools by a plasterer or decorator, and after it is set decoration proceeds as with plaster walls. Between the ceiling and the side wall space is left to fill in with the filler. It makes a smooth, uniform surface, easily decorated.

The answer of appellees puts in issue the question of the validity of the ordinance, and specifically sets forth that Bestwall is one of the various kinds of substitute materials that are on the market designed to replace wood lath and plaster in living rooms of buildings of ordinary construction; that buildings of such construction include frame buildings and buildings of brick and stone where there is neither fireproof nor slow-burning material used for partitions or between floors; that none of the substitutes for lath and plaster are equal to wood lath and plaster in fire or sanitary qualities, in durability, strength, and other particulars mentioned, in buildings of a permanent character; that the use of plaster is required by the ordinance only in living rooms, and that there is no ordinance of the city of Chicago which prohibits the use of substitutes in any other class of buildings except those which have living rooms, either within or without the fire limits. Appellees also contend that the pleadings and the evidence show that alternatives for wood lath and plaster are, in fact, permitted, and in particular that wallboards or plasterboards are permitted and regarded as an excellent substitute for wood lath.

Counsel for appellees argue that substitutes or alternatives for wood lath and plaster are permitted by the buildingcommissioner rightly under a proper construction of the ordinance. We cannot so hold. The heading of this section of the Code is, ‘Wood Lathing and Plastering.’ While wood lath is not mentioned in paragraph (b) of the ordinance, the only consistent interpretation, in our judgment, of the requirement that the walls and ceilings of living rooms in buildings of ordinary construction should ‘be covered with not less than two coats of plaster of the thickness and quality in this section prescribed’ is, that the ‘seven-eighths of an inch’ includes the wood lath, because the thickness of the plaster, alone, is nowhere prescribed in the ordinance, nor is it possible to compute the thickness of the plaster alone, because the thickness of the lath is not prescribed. It would be a forced construction of this ordinance to suppose that the plaster alone must be seven-eighths of an inch in thickness, and the only way in which clause (b) can be consistently interpreted is that it means the lath and plaster together should be seven-eighths of an inch thick. As we read this ordinance, fairly construed, it does not authorize the city authorities, either by the building commissioner or any other officer, to permit any alternative or substitute for wood lath and plaster in buildings of ordinary construction which contain living rooms, but provides that the rooms of the buildings in question ‘shall be covered with not less than two coats of plaster.’ It is true that counsel for appellees claim the reading of section 605 of the Code, as quoted by them in their answer, justifies the construction urged by them-that it authorizes the authorities to permit substitutes and alternatives for wood lath and plaster which are equally as useful and safe as wood lath and plaster. We do not so read the entire provisions of this ordinance. We find nothing therein that authorizes any substitution in dwellings of ordinary construction, such as here under consideration, for wood lath and plaster in the walls or ceilings.

Counsel for appellants urge that the ordinance is invalid also for the additional reason that it makes no provision whatever for the quality of the plaster or the method of its application. Counsel for appel...