Town of Union v. Ziller

• Decision Date: 01 October 1928
• Docket Number: 27282
• Citation: 151 Miss. 467,118 So. 293
• Court: Mississippi Supreme Court
• Parties: TOWN OF UNION et al. v. ZILLER. [*]

118 So. 293

151 Miss. 467

TOWN OF UNION et al. v. ZILLER. ^[*]

No. 27282

Supreme Court of Mississippi

October 1, 1928

Division A

1. MUNICIPAL CORPORATIONS. Statutes. Words of statute or ordinance will be taken in ordinary and proper signification unless enlargement or modification is necessary to effectuate legislative content.

In construing a statute or ordinance, words employed will be taken in their ordinary and proper signification, unless it shall be plainly necessary to enlarge or modify signification in order to effectuate plain intent of legislature in enactment of statute.

2. MUNICIPAL CORPORATIONS. Ordinance restricting rights of private property owners must be strictly construed.

Municipal ordinance, prohibiting construction of buildings made of sheet iron, wood, or other combustible material within designated fire district, being restrictive of rights of owners of private property, must be strictly construed.

3. MUNICIPAL CORPORATIONS. Billboards with sheet iron surjace held not building within law authorizing municipality to prohibit erection of certain "buildings" within prescribed limits (Hemingway's Code 1927, section 6788).

Billboards consisting merely of thin walls with sheet iron surface over wooden framework with supports to keep it from falling, held not a "building" within meaning of such word used in Hemingway's Code 1927, section 6788 (Code 1906, section 3352), authorizing municipality to prohibit erection of building made of sheet iron, wood, or other combustible material within prescribed limits; a "building" in the usual and ordinary acceptation of the word being a structure designated and suitable for habitation or sheltering human beings or animals or sheltering or storage of property or for use and occupation for trade or manufacture.

HON. G C. TANN, Chancellor.

APPEAL from chancery court of Newton county, HON. G. C. TANN, Chancellor.

Suit by Frederick R. Ziller against the town of Union and others. Decree for complainant, and defendants appeal. Affirmed.

Judgment affirmed.

C. E. Johnson, for appellants.

The town had the power to prohibit sheet iron structures. See sec. 6788, Hem. Code, 1927; sec. 5849, Hemingway's Code 1917; sec. 3352, Code of 1906. Sheet iron and wood prohibited by this ordinance, legality of passage of which is not questioned, only its reasonableness. In Cyc., page 736, par. B, we find the two tests: First, has the municipality the power to forbid the erection? Second, has it lawfully exercised the power? The question now is whether the structures involved in this suit are buildings in the sense or meaning of the ordinance. On this point, we urge that the structures shown, even by complainant's own testimony, are forbidden, because they are large, tin, and wood or sheet iron and wood according to testimony of complainant. The ordinance forbids the construction of "any building of sheet iron, wood or other combustible material." Any structure of considerable size serving the purpose of a permanent erection is a building within the meaning of an act prescribing conditions as precautions against fire. See 4 R. C. L. 394, par. 1. "The meaning of the word building, in a statute generally depends on the particular subject and its connection with other words." 4 R. C. L. 394, par. 1; Citing, Stevens v. Gourley, 7 C. B. (N. S.), 99, 1 F. & F. 498, 6 Jur. (N. S.) 147, 29 L. J. C. Pl. 1, 16 Eng. Rul. Cas. 516, and note; Karasek v. Peier, 22 Wash. 419, 61 P. 33, 50 L. R. A. 345.

We submit that since the ordinance prohibited "any buildings," and had for its purpose to prevent origin and spread of fires, that his own testimony shows it was a building such as was and is reasonably in the purview of the statute and the ordinance, and the chancellor was in error in finding for the complainant and perpetuating the injunction, because the ordinance was a reasonable exercise of the power granted.

The statute gives power to the mayor and board of aldermen to "prohibit the erection of buildings made of sheet iron, wood, or any other combustible material," within prescribed limits, and provide for removal of same at expense of the owner. To let such a structure as Ziller defends in this case to be erected and remain under the ordinance, would defeat its manifest purpose and endanger neighboring buildings.

Amis, Dunn & Snow, for appellee.

The only question to be decided is as to whether a billboard, such as the appellee had constructed, is a building or not. We say it is in no sense of the word a building within the scope of that word as used in the ordinance of the town of Union. It will be noted that the ordinance refers only to "buildings" and undertakes to set out the character of material out of which the walls, the roof, the interior, etc., are to be constructed.

The court, in construing a statute or ordinance, will assume that the legislature employed the words of the statute in their usual and most common-sense way. See State v. J. J. Newman Lbr. Co., 60 So. 215; Peeler v. Peeler, 8 So. 393; Green v. Weller, 32 Miss. 650.

There are many things which are built or erected which would not fall within the term "building." For instance, we speak of a bridge as being built but if a person were asked whether or not a certain piece of land, which had a bridge over a stream thereon contained a building, we have no doubt the answer would be "no." No one looking at a parcel of ground surrounded by a fence would speak of the same as having a building around it.

Ordinarily the word "building" signifies a house or structure composed of walls and a roof, an enclosure covered over, capable of sheltering man, beast or property.

The word "building" has received interpretation by several of the courts and we do not find where a billboard has ever been construed to be a building. As said by the New York court, all buildings are structures but all structures are not buildings. See Trusdell v. Gay, 13 Gray (Mass.), 311; Nowell v. Boston Academy of Notre Dame, 130 Mass. 209; Clark v. Lee (Mass.), 70 N.E. 47; La Cross & Mil. R. R. v. Vander Pool, 11 Wis. 119; Bailey v. Hull, (Miss.), 78 Am. Dec. 706; Rouse v. Catskill Steam Boat Co., 58 Hun. 80, 13 N.Y.S. 126; Mekamp et al. v. Huntington Chamber of Commerce et al., 129 S.E. 314; City of N.Y. v. M. Wineburg's Advertising Co., 107 N.Y.S. 478.

We earnestly submit that the ordinance of the town of Union does not include billboards and that billboards were not within the contemplation of the framers of that ordinance. This is a restrictive ordinance taking away from individuals the right to use their private premises as they see fit and the terms thereof must be strictly construed and will not be construed by the court so as to enlarge the word's use. The board in question was merely a very thin wall, being a sheet iron surface over a frame work with supports to keep it from falling.

If these billboards are buildings, then fences, bridges, gates and other like structures are buildings, but the courts have not so held.

OPINION

COOK, J.

The appellee filed his original bill in the chancery court of Newton county seeking to enjoin the mayor and board of aldermen of the town of Union from removing or abating certain sign or billboards erected by appellee on vacant lots within the fire district of said town. A temporary injunction was issued, and upon the hearing of a motion to dissolve this injunction a decree was entered permanently restraining the town of Union and its officers from removing, tearing down, or abating said sign or billboards; and from this decree this appeal is prosecuted.

The town of Union adopted an ordinance creating a fire district within the corporate limits of the municipality and defining the boundaries of said district, which provided that there should not be constructed within said fire district any building of sheet iron, wood, or other combustible material and provided further that any building thereafter constructed in violation of the provisions of said ordinance would be deemed a nuisance and be abated after five days' notice to the owner of the building to remove same, and authorized the marshal of the said town to cause the abatement and removal of such building by force at the cost of the owner in the event it was not removed by him in response to the notice so to do. Acting under the provisions of this ordinance, the ...