City of Brenham v. Holle Seelhorst

Tex.) HOLLE CITY OF BRENHAM & SEELHORST (§ 141*) Ordinances—'Validity- Trial 7. — por Jury. Question v. HOLLE & SEEL CITY OF BRENHAM alleged Where facts to render an ordi- HORST. nance invalid for unreasonableness contro- Appeals (Court of Texas. Antonio. verted, San by jury; Civil must be determined but Re- 1913. On Motion for Jan. whether such facts show ordinance hearing, 5, 1913.) Feb. unreasonable is a for the court. Trial, cases, [Ed. Municipal Coepoeations Note.—For other see Cent. 111*) (§ 1. —ORDI Dig. 336; Dig. § Dee. § 141.*] PROVI TO STATUTORY NANCES—CONFORMITY SIONS. — Municipal Corporations (§ 603*) 8. Po legislative pursuance An ordinance in Ordinances—“Fireproof lice PoweRt — Ma language grant in the need not be terials.” statute, nor exercise all requiring buildings Under ordinance power. within the fire limits to have their walls Municipal cases; using other see material, [Ed. Note.—For roofs constructed of Dig. Dig. 245-256; Corporations, brick, stone, concrete, Dec. §§ Cent. for walls and for roofs tin, covering iron, slate or sheet iron on a wood- § 111.*] en frame for the walls of a not Municipal Coepoeations 57*) (§ 2. —Govern “fireproof within the term materials.” Implied Powers. mental Powers — , Municipal eases, [Ed. other Note.—For see corporations possess powers Municipal Corporations, Dig. 1334; Dig. Cent. § § Dec. fairly necessarily expressly granted, those 603.* grant- expressly implied powers in or incident definitions, Phrases, objects For other see Words and ed and those essential to declared p.3, vol. simply 2818.] purposes corporation, conven- not indispensable. ient, — Municipal Corporations (§ 625*) 9. Po Municipal cases, Buildings [Ed. Note.—For other see lice Power —Construction Dig. Dig. 148; Corporations, Dec. Cent. §§ —Reasonableness of Ordinance. requiring buildings § 57.*] An ordinance within have, the fire limits to walls and roofs Municipal Coepoeations (§ 61*) 3. —Gov fireproof material, using constructed of walls for op — ernmental Powers Construction brick, stone, concrete, roofs and for the Statutory Charter Provisions. tin, slate, iron, in its dis- reasonable powers ques- municipal is a The extent of against crimination materials. construction, and, while construc- cases, §§ Municipal [Ed. Note.—For other see give legislative fair effect in- tion should Corporations, Dig. 1379; doubt, Cent. Dec. tent, any ambiguity or reasonable to Dig. § 625.*] against grant; rule be resolved strict adopted by municipality but the — Municipal Corporations apply (§ 625*) construction does not to the mode 10. Po — — lice Question Power Ordinances powers expressly granted, plainly Reasonableness. Leg- prescribed by mode is limited Where an is not ordinance unreasonable face, its islature.. operation upon particular conditions of cases, Municipal [Ed. Note.—For other see and its effect and reasonable 152; Dig. Dig. Corporations, Dec. § Cent. § arbitrary general, stance. in- in the 61.*] 4.Municipal Corporations — (§ 603*) Po Municipal cases, [Ed. Note.—For other see Ordinances—Fireproof lice terials. Ma Power — Corporations, Dig. 1378, 1379; Cent. Dec. §§ Dig. § 625.*] 523, authorizing Rev. St. art. Under 'buildings cities to limits within fire Rehearing. On for Motion to be of and article — Corporations Municipal (§ 603*) regulations authorizing Po Enjoining prevention expedient, an lice Power — Construction of fires as are deemed Building gment. requiring buildings ud—J ordinance within fire Under the walls of limits to have walls and roofs “constructed beyond within the fire limits -to be of fire- fireproof ed because of the power grant- material” was proof using brick, stone, specification or concrete of materials walls, slate, tin, for iron, walls and the roofs to be be used. the sheet iron and wooden frame cases, Municipal [Ed. other Note.—For see whose foundation Dig. Corporations, Dig. § 1334; Dec. § Cent. brick,. metal, whose iron roof is sheet 603.*] down be taken and removed. 5.Municipal Corporations (§ 58*) cases, Municipal [Ed. Note.—For other see —Gov Dig. Dig. ernmental Corporations, Powers —Statutes. Cent. Dec. § § express Unless charter contains an 693.*] power and not the enact an which is unreasonable, it should be held that it was Appeal Court, Washington from District enact intention to confer County; Sinks, Judge. Ed R. such an ordinance. City of Brenham Action Municipal cases, [Ed. Note.—For other see Judgment defendants, Dig. & Seelhorst. for 145-147; Dig Hollé Corporations, Dec. §§ Cent. plaintiff appeals. § 58.*] Reversed plaintiff. for 6.Municipal Corporations (§ 122*) —Ordi op — — nances Burden Proof Unreason Botts, Brenham, appellant. Thos. B. ableness. Searcy, Brenham, appellees. W. W. Where the unreasonableness of an ordi- void, nance relied to have it declared party attacking the burden is to MOURSUND, Appellant, J. prove facts' it invalid. enjoin Brenham, appellees them from sued cases, Municipal [Ed. Note.—For other see. continuing the construction aof Dig. Corporations, Dig. 281-289; Cent. §§ Dec. Brenham, limits of the the fire 122.*] § Key-No. *For other cases see came toDic & Am. Die. Series & section NUMBER Dec. Die. ReD’rIndexes (Tex. SOUTHWESTERN 153 REPORTER building and take down them remove erect thereon a and-.to. have small in the nature portion building room, been of a shed of said had the. south wall which of was by alleged adjoining building, erected that said the brick wall them'. was and building being being of material was the remainder of constructed sheet iron on’the out- using galvanized side; fireproof, being studdings iron not for walls/ which tablished the fire wooden 113'reads as wood and the framework wooden ordinances, contrary same, set openings a brick foundation. were two There pleaded. building, Ill No. es- were Ordinance one on the east and to.said prohibited north, limits. No. 112 one on the which were also covered buildings by limits. No. on within said the outside sheet iron. The roof of building build- “Construction of said follows: was also made of sheet iron.” ings ing every and build- erected within. —Each The court concluded that ordinance No. 113 any per- every by kind or size erected inwas conflict with article 523 of the Re- limits, have its walls son within said shall Civil Statutes of in so far as des- vised. fireproof material, ignated buildings and roofs constructed of using the materials out which walls, brick, and constructed, or concrete stone should be and that the material tin, building question fireproof 114 relates slate or iron.” No. in roofs of used in was buildings. repairs is, wooden No. material —that such as would exclude or “Any person ordinary who vio- reads as follows: late the shall shall resist fires—wherefore he held provisions judgment. ordinances and the defendant was entitled The recorder, judge opinion only on conviction before the learned trial was of the exceeding any by city $100.00. sum not fined said article 523 the was author- day Every person pass shall work forbidding that such ized to an ordinance the erec- building, permit buildings remain such standing the same to tion of within the fire limits not completion thereof, con- after shall made material. meaning By appropriate of this assignments stitute an offense within the appellant at chapter.” ing greatly jeopardized, endangered, alleged also that said build- finding It was tacks the the rial —that ordinary material used building and ex- mate posed adjacent buildings and is, those to fire such as would exclude or resist vicinity thereof, the rate of insurance on said son of its construction and increase the fires—and the conclusion of law buildings city rea- had exceeded its in of being fireproof, passing validity said ordinance 113. The building ordinances, constitutes a nuisance. and that said passed like the one in gen- by demurrer, pursuant The defendants answered to said article has not been building allegation denial, passed upon by any and was eral in a trial before the court of our far courts so as fireproof building. Upon ascertain, except we are informed or can ren- Appeals, the Court of Criminal in which their city defendants, from which the dered for Brenham was sustained a divided court. appealed. parte Morris, 533, 120 Ex 56 Tex. Cr. R. S. W. findings of facts as city trial court filed The 1007. Article 523 reads as follows: “The city was, is, purpose council, guarding against and follows: “The of Brenham incorporated fire, may prohibit under the articles the Revis- the calamities of the erec incorpora- tion, placing, moving repairing with reference to ed Statutes tion of towns 10,000 plained by city containing buildings than and less cities wooden within such limits within population. they may designate prescribe; Prior com- to the matters said and petition, city, may plaintiff’s prohibit of in and within said limits the mov putting any ordinance, up in said established fire limits wooden petition. plaintiff’s may prohibit limits, The as set out without said and also plain- passed described the removal of place wooden from one petition 113. limits, ‘Ordinance No. tiff’s as follows: to another within said and every every by any person, require prescribe direct, ings kind or —Each and and that all build designated pre lim- within said size erected within the limits so its, its walls roofs construct- shall have scribed as aforesaid shall be structed of or con made using walls*, pror ed and to concrete, tin, bricky rebuilding repairing and roofs of stone or hibit the of wooden buildings had refer- slate ence to the erection of fire limits established iron.’ Which the fire limits when same Within buildings damaged within the shall have been fifty per to the thereof, city, took cent of the value day March, prescribe ascertaining on A. D. the 4th the manner of publication dilapidated damage; said or- affidavit of all The declare the ^ day Sep- was, buildings made on the 6th to be and’ direct *the dinance tember, brought. nuisances T). repaired, A. after this suit was removed or abated in same to such rect fire tiguous buildings, T15, prescribe Ordinance No. described manner as shall and di offense, petition, pun- plaintiff’s ; made it an -wooden to declare dangerous $100, for violation of ishable ordinance. scribed fine of said limits which deem to con causing promoting The' defendants the lot de- nuisances, petition, fires, and within lire said cause to be having city, said after been removed such manner notified same to be limits the they mayor prescribe.” succeeding plaintiff, arti- not to do so did shall Tex.) HOLLE CITY OF BRENHAM v. & SEELHORST n fire order quiring quiring the walls alone to be made of such expressly on of manufactories and works ants to given storing roof control, to made counsel authorizes the the necessarily and the apparatus cíes and and arrest compel promoting sheds; destruction above nance to towns ladders; nance very in tended materials ulate 1,000 prevent fireproof explosive, officers to neys, flues, to establish such late the to persons lows article for the tion and material to ment But the the March fire prevent [I] authorize power fireproof compel regulate inspect premises; fire. other all use prohibit and other companies. power We authorized the language inhabitants the of grant specifying with the idle, disorderly, provisions the fire limits be made or constructed not exceed the to of incorporation all of deposits to aid in or keeping keep preservation stairs or ladders the fireproof materials, Article do not understand that is liberal extinguishment to pursuance building parapet buildings houses or materials. The statute does not authorize keep away would be the owners or apparatus, 1875 does not exceed or used such gunpowder or fireworks regulate prohibit be exercised'. Where' fireplaces, stoves, officers of the and made materials. respect and of a contained regulate the permitting causing spreading walls to be built of dangerous materials; deem and provisions directing (Laws 1875, 100), procurement mayor prescribe dangerous grant 523 authorizes imprison and as follows: “And is whether an buiiding the materials to Article 535 the regulations are a the entire of or about provide ashes; to the the to have scuttles or expedient.” over. It and thereof must be of cotton from the conveying fires; or and the any authorized because extinguishment to and of cities and towns of and or other officers statute, prevent . keeping of fire. prevent adoption Legislature, grant property. occupants require part leading firearms; of fires power the council to suspicious persons, means the buildings other prevention of loss to condition fire buckets c. any building; an ordinance re and requirement of fire ovens, for the appoint organization prohibit manner and is authorizes Legislature vicinity of the act of same; and all of the dangerous an ordinance awhen nor that all and and to cities presses necessary power given the party combustible, 475, evident that to the grant the inhabit- those Article 534 as All be used authority. providing of houses Then fol- to generally all other carrying or other manage- to an ordi prohibit of chim- the for the prevent preven- engines certain and officers or walls; given, direct, 542, of same; same; or fire should to be grant regu- porations, must ordi fires reg- and dent and any self-preservation, the the the in- re to to to is do no act can tions casionally 43 Tex. indispensable. porations, § 113. “The rule of strict construc quotes, their essential the power nothing cised or lic more rate by ers : as to defeat the jects rule should strict construction applied, implied, to be confined to Bridgeport found essary powers tion. And “It is seldom that a choice of means expressly granted. intent in it has the law But, ply public, sal essary, just, plainly granted, cise all the and reasonably proper The rule of ited (unless ambiguity doubt determined [2] A corporation.” exercise the rule, corporation, construction of the power to to, powers expressly granted; 4 S. W. 143. purpose (1) if we powers liberal rule seeking Dillon, (5th Ed.) 237; necessarily long the mode or Legislature, deny necessary is prescribed given restricted with for which a following: Those attempted to declared the order modified. The courts hold where it is whether here the fundamental v. Housatonuc R. R. granted, corporations powers indispensable, municipalities, been not in favor of the' them some cases were to Brenham v. Water strict construction does which § powers language first approval, incorporation. of their creation which are 239, says: while the construction is to be accomplish fáir, Dillon on § is as reasonable as it is not following powers, adapted effect- extent of the adoptéd by very purpose the or where the mode is not-lim not the established to effect as well as Abbott give legislative grant, corporation possesses carried in this any to be exercised to public is if fairly implied in, “In In buildings, reasonably construction Dillon, objects preceding rule other than that of reasonable, within simply should be done.” say proper warrant could not Williams v. whatever give applied state’s necessary powers doing it fair of their mode of this to from Municipal expressly given. Legislature, and is one express words; “The or to such the result ends, whether the essential ob effect to respect) state and in section country convenient, the fair intent is they may to. Municipal this private, grantee. power And, effect, yet for which ñor is many or should section is not the case Co., expressly the charters, nature exer be inferred. municipality Co., principle purposes and univer and no oth of a operation.” substantial legislative Davidson, exercised, expressly therefore power construc Corpora 15 Conn. (3) and can adopt express, is have 67 Tex. or all general can do powers of the sought a extent derive corpo * * * those . exer must inci pub Cor nec 238, nec cor not ap we oc (2) be be of of of a (Tex, SOUTHWESTERN REPORTER municipal left says: to the S. W. authorities. 70 L. R. A. the court case of the “In the usual test of the case before us mu- we have municipal body nicipal act of a it is rea- with, is whether ordinance to deal is the and it sonable, presumption against and there is well-established no doctrine and other action in such cases.” courts that the as to the reasonable- given by Legislature [4] The ness or unreasonableness of such ordinances say very great. open inquiry article 523 is. It does not v. courts. Milliken buildings may City Council, Rep. that the be 629]; erection of 54 Tex. [38 limits, Railway, that Mills within the fire 94 Tex. 247 S. [59 W. requir exception materials 55 L. 497]. R. A. to this rule ed. While the use materials that the reasonableness of an or- vel non ap yet questioned would create a dinance cannot be thus if it be pears expression “fireproof expressly to us Legislature, authorized materials,” used, regulation in it the sense in which is be a Legislature which the itself * * * to, Legislature power adopt evidences the intention of the has to and enforce. give scribing power pre a broad with reference to The reasonableness or unreasonableness materials, power including many the a the appear faces, ordinances will on their right particular designate may, upon to the inspection, and the court mere provided designation pronounce such is reasonable and them to be In valid invalid. upon grounds. question based substantial others According the their appellees’ operation contention, only to upon particular persons the ordinance or condi which could be enácted tions under said article which fact cannot be known to the would appear be one by court until made evidence. to instance, may the Their general, arbitrary that be be in and reasonable erected of may material. Such an ordi but instances to the extent of be nance, (see Baker, oppressive while valid Chimene v. App. 522, 330), invading Tex. Civ. 75 S. W. rights. would not fundamental Evison v. Chi accomplish cago, be We P., Ry. calculated to the best Co., results. St. M. 370, & O. 45 Minn. opinion right 6, are the des 48 N. to W. 11 R.L. A. Trenton Horse ignate fairly implied pow materials is City the R. Co. Trenton, v. Inhabitants of require buildings er Law, to be 1076, to constructed of 53 N. J. 20 Atl. 11 L. R. A. fireproof materials, city the only and that council 412. In such cases the court can deter power enacting did dinance in validity not exceed its the or invalidity mine as the to question. ordinance when the facts which the question City depends established; [5-7] In the ease of and, of Austin v. Cem are if etery Association, dispute, they 87 Tex. 28 S. W. are to be determin Rep. 114, St. it ed of was held that an like other matters of the prohibiting cemetery being burial still one of law for the city the limits north of the Colorado decide. When court to the case is tried river, except cemeteries, jury, is, course, a to three named court the to instruct as by provision applicable differing authorized thorizing a the charter au the law to the states city regulate the “to burial fact which the evidence tend to es prohibit public the dead and to funerals tablish as in other cases. case, looking The court this contagious alone, cases of death from or infectious at the ordinance could disease; purchase, say regulate to establish and that it is void. As was said Supreme one or more cemeteries within or Minnesota, without Court in the Evison Case, supra: limits.” The held that court “Much must be left to power regulate pow judgment to included not council, and discretion of the prescribing and, er shall manner judg it have exercised their done, passing but also ment it is ordinance, embrace discretion in an place was, prima valid, time and and, justify it. doing also held facie express action, unless a charter contains an court in aside setting its un power arbitrary necessity an enact and unreasona reasonableness and the want of ordinance, protection ble it should be held (cid:127)for that was it as measure for the of life property clear, not the intention such an reasonableness manifest, to confer must be enact ordinance; also, that, undoubted, amount, un so not to a fail- upon exercise, abuse, discretion, ordinance is relied or a void, it party alleging have declared incumbent mere exercise of the of the- invalidity [citing Chicago, to aver council Knobloch v. M. & St. prove Co., so, and, But, P. where it 106]. the facts which made it R. 31 Minn. 18 N. W. clearly appears controverted, they manifestly if the facts be must that jury, unnecessary determined but whether such the ordinance is and unreason able, right, facts are be to show courts have the sufficient ordinance to undoubted unreasonable is the court. it void.” to declare Ry. See, also, M., Matherly, plead K. & T. v. In do not [ ]8 ease the defendants App. 604, unreasonable, plead Tex. Civ. 81 S. W. the ordinance that Ry. Dallas, H. & T. case of C. 98 Tex. material that used them was fact. Tes.) BANK v. ABERNATHY FIRST NAT.

ground to the conclusion and burns the wooden al as and before it fact agree originates not be said to be made of ignited then we sound reason and themselves ing before existence fireproof, will affect buildings ignited much ing rights, If this be held a sufficient ing fect of iron or its ing, yet While it ing able materials used out of is in evidence that fireproof, brick roof would be the roof would fall between the undisputed en Whether the iron [9] We think the uprights, would show the character of the extent, and that building and with the learned trial court and thus start subjected through contents of invalidity in ease of fire collapse, gets say and. such more unreasonableness,- and the court soon be on the uprights would be evidence rolling true exclude or resist while reason of a wooden curls, in either material; that we are hot rate of insurance on easier by appellees than the iron the discrimination materials. His to a fire whether enough also inside of curls same as destroyed. Besides, as is of the ordinance in an and the galvanized up. the fire shows that when destroyed by ordinance was a fire on the inside. than the wooden building in up, uprights, commonly A wall becoming very plea ironclad the concluded from the arbitrary, compelled supports a brick heat fall ignite which we was when the-build- is, event be confined to building. ordinary fires. of facts show- a brick iron curl walls of the such uprights based has the ef- findings frame can- having inside the the build- the wood- the build- known as We adjoining was built might material. FIRST building. outside, nor against materi- reason on the of to dis- regard awarding doubt, build- a fire such burn- walls sheet some The the district court hot up- did up. its it ceed are Bills 1. versed and here rendered for mandatory injunction requiring appellees to take down and this case fail to show ment effect the enacting This essary the motion for hearing call ing appellees the they This able, arbitrary, tion is ing of error. be reformed so as (Court Judgment originally property rights. judgment thereof, being writs as disposition point heretofore entered violation of the hold Appellees judgment of Civil NAT. BANK OF CANYON v. metal, comply On Motion for said it a pass upon .that is well reversed and rendered. our entered. remove the walls of the Jan. mandatory injunction requir- NATHY et al. otherwise the rehearing is Appeals or an question, of the case makes it take pass attention to to take in their 11, 1913.) conferred taken. the lower brick, the other necessary and it is ordered that dpwn (§ 484*)—Actions such unjustifiable In all other with and that the facts of Texas. Amarillo. award council did not ex- Rehearing. while the founda down and it was unreason- and the orders overruled. motion for The walls this court court court assignments and the mo appellant a remove this court. statute ordinance. appellant, and issue fact roof, invasion respects remove ABER- is that unnec- is re- build judg .only be re in nance is not question it material, and claim person building proof particular may manufacturer material should equally stance. erally every aspect unreasonableness of the ordinance tion when directed we are met Brenham as the materials vaded his

Notes

[10] Railway wrongfully walls recognized As Brick, we understand the rule conditions rights by no such as either of unreasonable Dallas, supra, oppressive in a destroy any stone, a house be invented which would be same, might reasonable in towns of the size of that said ordinance property. be constructed. when considered from and concrete are condition. out out of which fire on its property operation upon and its effect well same, general, laid down face, this case urge rights. ques If a ordi gen his n in in payee Notes, § cheeked that he check when immediately charged ed to on payee, swer, payee from a deposit was drawn on that cause such ey leaving an indebtedness due in the sum so entitled Check—Answek—Sufficiency. 484.*] DOESEE. [Ed. Bills paid another In an An indorsee of plaintiff pay, alleging had checked out payment money, Cent. person Note.—For other general exceptions out, which the maker to recover from the indorsement from the and Notes were in the drawee action person plaintiff get bank Dig. knew of the condition that was to indebted that he had of the check was properly Notes §§ against it failed to 1535-1538, fund, money the amount to the 316*)—Rights (§ negotiable bank overruled. but was not bank, cases, him, to the maker’s an- agreed be obtained deposit cheek, tendered and offer- on a maker part drawer and payee, see Bills and instrument is check refused, of the mon- to loan the who was Dec. took the paid 'by drawer money, drawn payee, check Dig. him In- be- topic Dig. Dig. Key-No. Rep’r other cases see same and section NUMBER in Dec. & Series & *For Indexes

Case Details

Case Name: City of Brenham v. Holle Seelhorst

Court Name: Court of Appeals of Texas

Date Published: Jan 8, 1913

Citation: 153 S.W. 345

Court Abbreviation: Tex. App.