City Council of Montgomery v. Louisville & Nashville R. R.

84 Ala. 127 | Ala. | 1887

SOMERYILLE, J.

The principles settled in the case of The Port of Mobile v. The Louisville & Nashville Railroad Co., decided at the present term, 84 Ala. 115, may be fairly con sidered as settling the right of a court of chancery to assume jurisdiction of the present case, the purpose of which is to protect an alleged corporate franchise from repeated and embarrassing disturbances resulting from the threatened enforcement of a municipal ordinance of the city of Montgomery, which is asserted either to be void, or else to have no application to the case of the complainants, although the Recorder’s Court of said city has construed it otherwise, and the city council have announced their intention to execute its penalties against the complainant, and its authorized agents.

It is obvious that upon the facts stated in the bill, which are to be taken as true, so far as well pleaded, on the motion to dissolve the injunction, the enforcement of the ordinance in question, with or without the demolition of the new extension of the depot in process of construction, presents a strong case of complicated and irreparable injury to the complainant, followed by a grave interference with public •interests; The duty of the complainant railroad company to supply suitable depot accommodations to the travelling public is imposed by statute. The right to do so is as much a part of its corporate franchise as the right to construct its road, and to carry passengers for hire, subject of course to be regulated by the exercise of the lawful police power of the State, whether directly by the sovereign power speaking 1 through tho public statutes, or indirectly through the agency o£ tlxe municipality of Montgomery, expressed in tlxe form of a lawful axxd valid ordinance.

Tlxe case tlxen resolves itself into an inquiry as to the validity of the ordinance in questioxx, or its application to the act of the complainant-ixx the enlargement of its depot building, as described ixx the bill, axxd admitted by the appellant oxx this motioxx. This ordinance, as foxxnd ixx the city code of 1879, is as follows:

“Bee. 132. No person shall bixild any wooden house, shed or other structure of wood within the above described fire limits; or remove any structure from a place beyoxxd to a place within the fire limits; or remove any wooden structure froxxx axxy place within the fire limits to axxy other place within the fire limits, or repair -with -wood or other combustible material the roof of axxy bixilding within the fire limits; or enlarge or elevate a wooden building of axxy kind within the fire limits, axxd axxy person Avho shall violate axxy of the provisions of this sectioxx shall be fined ten dollars on convictioxx thereof, and five dollars for every day thereafter that the violation shall be coxxtixxued.”

The ensuing section, numbered 133, purports to define what shall be deemed a Avooden bxxildixxg, and does not affect the case ixx the aspect ixx which xve propose to decide it. "We assume that the ordinance is authorized by the amended charter of the city, approved February 26, 1887, under the power there givexx “to determine xvithin what limits woodexi buildings shall xiot be erected, and to prevent the reconstruction ixx Avood of old buildings withixx such limits, and to condexnxi buildings axxd verandahs axxd parts thereof, which are dangerous or ixxsecure.” — Acts 1886-87, pp. 488-489. We nxay adnxit also, for the sake of argument, that this power is as broad as section 21 of the original city charter, which authorized the city couxxcil “to regidafe or prohibit the erection of wooden buildings ixx any part of the city they may deem proper axxd necessary,” under the authority of which tlxe ordinance under consideration was passed.

The contentioxx is pressed with earnestness that the depot extension, or enlargement, xvliich is minutely described in the bill, is not a wooden bixilding, because it rests on a solid brick foundation, is intexxded to be encased on the outside Avith corrugated iron, and to be covered on top with sheet-iron roofing, in such manner as to make it practically fire proof. For this- reason it is insisted that the city couxxcil liad no authority, under its charter, to prohibit the erection of such a structure. If we conclude that the legislature used the words “wooden building” in the sense in which they are ordinarily used in common parlance and usage, and that the city council could not attach to them any other or different signification, it becomes exceedingly difficult for a court, or even a jury, to say precisely how much wooden material, in a given case, will operate to bring a structure within this designation, or class of buildings. This is manifest from the most casual reflection. The issue is one which might well have been referred by the chancellor to a jury, and had he done so, in a proper case, and retained the injunction in force until its determination, after the answer on the final hearing, we are not prepared to say that his action would have been erroneous in this particular. 2 High on Injunc. §§ 1508-1509. Without undertaking, therefore, to determine whether the structure in question is a wooden structure, we are satisfied that the extension or enlargement of the complainant’s brick depot building, in the manner described, does not fall Avithin the prohibitions of the ordinance. The first paragraph of the ordinance merely prohibits the building, as an entirety, of any wooden house or structure. There is another clause regulating enlargements of old buildings. The second and third have reference only to the removal of Avooden and other structures Avithin the fire limits. The fourth prevents repairs of certain kinds on the roof of any building within the fire limits; and the fifth prohibits the enlargement or elevation of a wooden building of any kind Avithin the same area. The ordinance is penal in its nature, Ave may say highly penal, in view of the daily recurring fines for the continuance of the quasi nuisance intended to be prohibited and punished. It must, therefore, be strictly construed against the municipal authorities. It is not sufficient for an act to be brought Avithin the spirit of a highly penal statute; it must come Avithin the letter, ordinarily, to authorize its inclusion Avithin the terms of such statute. Adopting such a construction, we think that the act of the complainant corporation does not fall within the terms of the ordinance, and is not violative of its provisions. This conclusion is sufficient to authorize us to hold that the chancellor did not err in refusing to dissolve the injunction granted to prevent the threatened enforcement of the ordinance against the complainants, or its authorized agents, Avho were concerned in making the depot enlargement.

We Avish to be understood in Avhat Ave have above said, as intentionally leaving tlxe question undecided as to whether the extension or enlargement of the depot building, as described in the bill, is a wooden structure or not — such as it was within the power of the city to prohibit by virtue of the authority conferred iix its charter. This point we leave open. What we do decide is, that the ordinance of the city, which has been enacted oix this subject, does not meet the case in hand.

The decree ef the chancellor refusing to dissolve the injunction is, accordingly, affirmed.