Oregon Box & Mfg. Co. v. Jones Lumber Co.

• Decision Date: 16 March 1926
• Citation: 117 Or. 411,244 P. 313
• Parties: OREGON BOX & MFG. CO. ET AL. v. JONES LUMBER CO.
• Court: Oregon Supreme Court

244 P. 313

117 Or. 411

OREGON BOX & MFG. CO. ET AL. v. JONES LUMBER CO.

Supreme Court of Oregon

March 16, 1926

In Bank.

Appeal from Circuit Court, Multnomah County; Geo. W. Stapleton Judge.

Action by the Oregon Box & Manufacturing Company and another against the Jones Lumber Company. Judgment for defendant, and plaintiffs appeal. Affirmed.

This is an appeal from a judgment based on a verdict in favor of the defendant. The plaintiff Oregon Box & Manufacturing Company sustained a loss by fire on the 31st day of May, 1919. The defendant, at that time, and for a long time prior thereto was operating a sawmill on an adjoining tract of land. From 50 to 75 feet from the buildings of the plaintiff Oregon Box & Manufacturing Company, the defendant, maintained a fire for the purpose of consuming refuse material from its sawmill. The complaint charges the defendant with having so carelessly and negligently maintained said fire as to permit sparks and burning embers to escape from its chimney and set fire to and destroy the buildings and lumber belonging to the plaintiff Box Company. About the time the case was set for trial the plaintiffs were permitted to amend their complaint by pleading an ordinance of the city of Portland, providing building regulations entitled:

"An ordinance providing building regulations to be known as the building code, repealing certain existing building regulations, and providing a penalty and declaring an emergency."

The part of the ordinance particularly involved is as follows:

" Topping Out and Spark Arresters. Section 448. All masonry chimneys, flues, or smokestacks shall be topped out with brick, terra cotta, concrete, stone, or cast iron properly anchored. The top of any chimney, flue, stack or cupola which emits sparks or which is used in connection with shavings or sawdust used as fuel, shall be covered with heavy wire netting of a mesh fine enough to arrest the passage of sparks."

On motion of the defendant, the amendment was stricken from the complaint as irrelevant and immaterial. The motion is based upon several grounds, and, in substance, is as follows First, that it does not appear from the complaint that the refuse burner and chimney of the defendant was erected after the passage of the ordinance, nor that the defendant used either shavings or sawdust as fuel in said refuse burner. Second, that it is unreasonable, in that it undertakes to prohibit the escape of sparks from all chimneys, regardless of the kind, size, or size of sparks emitted therefrom, or danger resulting from the escape of sparks. The third is in the following language:

"That said portion of said ordinance set up in said paragraph XI 1/2 is void for indefiniteness and uncertainty, in that it fails to fix any standard or test of the sufficiency of the device required thereby to arrest sparks, and in that it fails to fix a standard of fineness of the mesh in the wire netting required by said ordinance."

The plaintiffs assign as errors the order of the court sustaining defendant's said motion to strike, the giving of three instructions, and refusing to give two instructions requested by the plaintiffs. Other assignments are named in the abstract of record, but are not argued in the brief, and for that reason are deemed to have been waived.

Platt &amp Platt, Montgomery & Fales, of Portland, for appellants.

Malarkey, Seabrook & Dibble, of Portland, for respondent.

COSHOW, J. (after stating the facts as above).

The plaintiffs contend that the ordinance set out in the amended complaint is exercised under a specific grant of power authorizing the city to legislate in the particular manner set out in section 448 of said ordinance. Based upon that premise, they claim that the court was without authority to declare the ordinance unreasonable. 2 McQuillin, Municipal Corp. 1570, § 724; 2 Dillon (5th Ed.) 943, § 600; Cooley on Constitutional Limitations, 201; Darlington v. Ward, 26 S.E. 906, 48 S.C. 570, 38 L. R. A. 326-333 et seq.; City of Baltimore v. Wollman, 91 A. 339, 123 Md. 310, 319; Zucht v. King (Tex. Civ. App.) 225 S.W. 267; Willerup v. Village of Hempstead, 199 N.Y.S. 56, 120 Misc. 485.

In Zucht v. King, above, the opinion has this language:

"While the court at that time hesitated to say the powers cannot be delegated to the municipal corporation, now no longer a controverted question, but in effect says, where the charter power is sufficient to manifest such purpose, and the same is not unreasonable, it will be upheld, such ordinance is not void on its face. Whether the facts relied on to show the ordinance unreasonable are apparent in the face of the petition or not, a demurrer admits them as true, and the reasonableness or unreasonableness becomes a question of law for the court."

It thus appears that, in those cases where the courts have held that the reasonableness or unreasonableness of an ordinance is a matter for the legislative department of the municipality to determine, the courts will even then, under some circumstances, consider the reasonableness of the ordinance because that is a judicial problem. It is true the courts will not set its discretion or judgment against that of the municipality on the matter of policy, but only as to a question of law. In other words, the courts will treat an ordinance of a city within the specific powers granted by its charter the same as they treat an act of the Legislature. As charity covers a multitude of sins, so the word "reasonableness," or its antonym, covers a multitude of reasons for either enforcing or refusing to enforce an ordinance. 1 Lewis' Sutherland Statutory Construction, below.

In our opinion the ordinance was enacted under the general powers granted by the charter and not by a specific grant. 2 McQuillin, 1574, § 725. See, also, pp. 1581, 1583, 1586, note 44, and page 1594, note 71; Ex parte Wygant, 64 P. 867, 39 Or. 429, 54 L. R. A. 636, 87 Am. St. Rep. 673; Union Oil Company v. City of Portland (D. C.) 198 F. 441, 442, 443; Thomas Cusack v. Chicago, 108 N.E. 340, 267 Ill. 344, Ann. Cas. 1916C, 488, 490, 491; Building Commission of Detroit v. Kunin et al., 148 N.W. 207, 181 Mich. 604, Ann. Cas. 1916C, 959; Welch v. Swasey, 29 S.Ct. 567, 214 U.S. 91, 105, 53 L.Ed. 923.

In order for the general power granted to a city by a charter to be specific, the grant must define the mode of its exercise. City of Portland v. Yates, 199 P. 184, 203 P. 319, 102 Or. 513, 519; Chan Sing v. Astoria, 155 P. 378, 79 Or. 411; Ex parte Wygant, 64 P. 867, 39 Or. 429, 434, 54 L. R. A. 636, 87 Am. St. Rep. 673. It becomes then our duty to examine into the validity of the ordinance set out in the amendment to the complaint.

We do not understand that the defendant questions the power of the city to ordain ordinances on the subject-matter of the one herein involved. It is a general rule, uniformly applied, that in the exercise of the regulatory power ordinances must be definite and certain in expression. 2 McQuillin, 1414, 1426, 1428; 2 Dillon (5th Ed.) 927, 928, §§ 590, 591; State v. Clarke, 37 A. 975, 69 Conn. 371, 39 L. R. A. 670, 61 Am. St. Rep. 45. Ordinances fixing fire limits must be certain, definite, and reasonable. 3 McQuillin, 2066.

Defendant assails the ordinance involved because it is indefinite, uncertain, and vague. The provision of the ordinance directly involved is as follows:

"The top of any chimney, flue, stack or cupola which emits sparks or which is used in connection with shavings or sawdust used as fuel, shall be covered with heavy wire netting of a mesh fine enough to arrest the passage of sparks."

It is very patent that this sentence is indefinite and uncertain. A man of ordinary intelligence cannot tell by reading the ordinance how fine the mesh must be in order to arrest the passage of sparks. Indeed, a number of cases decided by this court have stated in effect that human ingenuity has not yet discovered a method of preventing the escape of sparks from chimneys under which is burned wood or coal. Mt. Emily T. Co. v. O. W. R. & N. Co., 161 P. 398, 82 Or. 185, 199; 13 Am. Ency. of Law (2d Ed.) 410-413; 11 R. C. L. 940-942; State v. Wittles, 136 N.W. 884, 118 Minn. 364, 41 L. R. A. (N. S.) 456, Ann. Cas. 1913E, 433; Atkinson v. Goodrich Co., 18 N.W. 764, 60 Wis. 141, 50 Am. Rep. 352; St. Louis v. Heitzeberg Co., 42 S.W. 956, 141 Mo. 375, 39 L. R. A. 551, 64 Am. St. Rep. 516.

Webster's International Dictionary defines "spark arrester" as follows:

"Name of various contrivances to prevent the escape of sparks, as from a smokestack."

The Standard Dictionary defines the same term as follows:

"A spark catcher, as on a locomotive."

If the definition of Webster is accepted literally it would be impossible to utilize a spark arrester because the refuse would not burn without a draft, and no way has yet been found to absolutely prevent some sparks from escaping through a chimney or smokestack. We believe the intention of the council was to require such chimneys to be provided with contrivances that would reduce to a minimum the number and size of sparks thus escaping. We cannot assume that the ordinance was intended to prevent the maintenance of such industries as sawmills within the corporate limits. But the ordinance should have described the contrivances to be used so that there would be some standard by which the owner or operator would know when he was complying with the ordinance. The city cannot delegate to its administrative officers the determination of such a question. It is a legislative question. Winslow v. Fleischner et al., 228 P. 101, 112 Or. 23, 34 A. L. R. 826. The ordinance assailed is void, therefore, not because the general subject-matter thereof or the policy of the city is unreasonable and uncertain, but that it is...