City of Seattle v. Hinckley, No. 5760

No. 5760 | Wash. | Nov 13, 1905

Lead Opinion

Dunbar, J.

The city of Seattle, appellant in this ease, instituted a criminal action against the defendant and respondent for the violation of a certain ordinance of the said city of Seattle. The respondent was tried and convicted in a police court, and fined in the sum of $50. Hpon appeal to the superior court, the case being submitted upon a statement of facts, tbe respondent was acquitted. Tbe essential part of the ordinance the violation of which is charged is as follows:

“That all hotels, office buildings, factories, tenements, and lodging houses, more than three stories in height, shall have at the ends of each main hallway on outside of building a fireproof stairway leading from within nine feet of the grade line of the street or alley to top of roof.”

Then follows a more minute description of the fire escape required. Section 126 is as follows:

“That any owner, builder, contractor, or other person who shall construct, alter, repair, or cause to he constructed, altered, or repaired, and any architect having charge of the same, who shall permit to be constructed, altered, or repaired, any building or other structure in violation of any provision of this ordinance, or who shall violate any provision thereof, unless other penalty for such violation he provided herein, shall he subject to a fine,” etc.

The statement of facts upon which the case was submitted showed that the respondent was the owner of a four-story brick building described in the complaint, that it was being used for office purposes, and located in the city of Seattle. It is admitted that respondent refused to erect and place at the north end of the main hallway of the said building, as required by ordinance, the fire escape required by said ordinance. It was also admitted, that in the year 1898 he had erected on the north side of said building, being at the north end of the main hallway described in the complaint, a fire escape, which was then erected under the supervision and direction of the fire chief of the said city of Seattle, and in compliance with the ordinances then regulating fire escapes; that the fire escape which he had erected was, at the time of its construction, a good and sufficient fire escape, and that it was in practically the same condition as when the same was erected; but that said fire escape and appurtenances do not comply with the ordinance of the city above mentioned. It was also admitted that said fire escape, together with said platform and appurtenances, is sound and serviceable and fit for use, but that tbe same is not as serviceable and not as convenient and not as safe as the iron stairways provided for under said ordinance.

Tbe contention of tbe respondent is tbat tbe ordinance was not retrospective in its scope, and tbat tbe city council did not intend in its passage tbat bouses erected before tbe passage of tbe ordinance should be subject to its provisions; tbat it was not intended to interfere with fire escapes then existing; and tbat, if sucb ordinance should be so construed, it would be unconstitutional as depriving respondent of existing rights. Tbe trial court took this view, and tbe respondent was acquitted and discharged from custody.

We think tbe court erred in its construction of this ordinances It may be conceded tbat tbe fundamental rule of construction of statutes is tbat they shall not be construed to be retrospective unless tbe retrospective intention is expressed, or can be plainly gathered from tbe provisions of tbe act. But it seems to us tbat tbe language of this ordinance is plain and unequivocal. When it is said tbat all hotels, office buildings, factories, tenements, and lodging bouses more than three stories in height, shall have a certain described fire escape, it seems to us it was tbe plain intention of tbe city council tbat all buildings described sbordd have sucb appurtenances, and tbat, if it bad been tbe intention to except any buildings from its provisions, sucb exception would have been expressed. Tbe language is as broad and comprehensive as could well have been used. In reason, too, it would seem tbat, if tbe city council, from observation or investigation, bad determined tbat a certain character of fire escape was necessary for tbe preservation of people inhabiting certain classes of bouses, it would be as important in the interest of tbe safety of tbe inhabitants of sucb bouses to apply tbe rule to bouses already built as to those thereafter built. There can be no doubt as to tbe constitutionality of this act under this construction.

And there is no merit in the contention that the respondent had any inherent or vested right because he had complied with the law existing at the time he built. There is no such' thing as an inherent or vested right to imperil the health or impair the safety of the community. But to be. protected against such impairment or imperilment is the universally recognized right of the community in all civilized governments — a protection which the government not only has a right to vouchsafe to the citizens, but which it is its duty to extend in the exercise of its police power. When the subject of legislation is a proper subject of such exercise, as in this case it undoubtedly is, private rights are always held subservient to the public weal, and the legislature must be the judge of the propriety or extent of the remedy. ■ The object of this ordinance was to protect persons from fire, and while it is agreed that the fire escape already existing was in working order', it is also stipulated that it was not as convenient or safe for use as the stairway provided for by the ordinance. The people have a right to the safest method that can be found and determined by the legislature. Conditions in cities in relation to buildings are. constantly changing. Dangers from fire are increasing by reason of the change in the construction of buildings, and for many other reasons which might be conceived. In addition to this, mechanical science is making known safeguards, apparatus, and methods of extinguishing fires which were not known before. Theaters and other public buildings are built with certain kinds and characters of fire escapes, which in emergencies are found to be faulty, and not the best that could be used. It would be a sad commentary on the law if municipalities were powerless to compel the adoption of the best methods for protecting life in such cases, simply because the confessedly faulty method in use was the method provided by law at the time of its construction. The changing of fire escapes is only an incident in the expense of the construction or repair of a building.

The same reason that impelled the court in Buffalo v. Chadeayne, 134 N.Y. 163" court="NY" date_filed="1892-06-07" href="https://app.midpage.ai/document/city-of-buffalo-v--chadeayne-3615634?utm_source=webapp" opinion_id="3615634">134 N. Y. 163, 31 N. E. 443, to hold that the ordinance in that case applied only to buildings thereafter to be constructed, would not apply here. There the question came up on an ordinance preventing the erection of wooden houses within certain fire limits. At the time the houses were built, or partly built, they were built under the sanction of the authorities, and after the work had been partly accomplished and the contracts let, the fire- limits were changed; and the court very properly held that the charter authorizing the making of ordinances by the comtnon council “to prescribe the limits within which wooden buildings shall not be erected,” pertained to the future, and that an ordinance made thereunder, prohibiting, without the council’s permission, the erection of “any building constructed in whole or in part of Wood within certain limits,” referred to buildings to be erected in the future, and not to buildings in existence and erected by such permission.

However, this question was squarely decided in Commonwealth v. Roberts, 155 Mass. 281" court="Mass." date_filed="1892-01-06" href="https://app.midpage.ai/document/commonwealth-v-roberts-6424029?utm_source=webapp" opinion_id="6424029">155 Mass. 281, 29 N.E. 522" court="Mass." date_filed="1892-01-06" href="https://app.midpage.ai/document/johnson-v-walker-6424021?utm_source=webapp" opinion_id="6424021">29 N. E. 522, 16 L. R. A. 400, a sewage case, where it was held that the act applied to houses built after the act went into operation, as well as those having been constructed before. The language of that act was as follows:

“Every building in the city of Boston used as a dwelling, tenement, or lodging house, or where persons are employed, shall have at all times such number of good and sufficient water-closets,” etc.,

and the court, in speaking of the act, says:

“The defendant contends that the act was not intended to apply to houses already built when the act went into operation. But while the act is broad enough to apply to> all buildings, the language of the section imposing a penalty on ‘any person violating any provision of this act’ ... is prospective in its operation, and applies to violations which continue after its passage, or which then come into existence.”

The court further says:

“The defendant, however, contends that, as her structure was lawful when built, an act of the legislature which would render its use unlawful would be unconstitutional, citing Commonwealth v. Alger, 7 Cush. 53, 103. The statutes there in controversy related to harbor lines in Boston, and were not police regulations affecting the public health; and the language of Chief Justice Shaw in that case does not apply to a case like the one now under consideration.”

It will be noted that the section imposing the penalty in the case at bar provides that any owner, builder, etc., who shall construct, alter, repair, etc., or who shall violate any provision thereof, shall be subject to a fine, etc. If the act were to be construed to apply only to the construction, alteration, or repair of buildings after the passage of the .act, there would have been no room for the further expression, “or who shall violate any provision thereof.” Construing the sections of the ordinance together, and taking into consideration what must have been the reason for the passage of the ordinance, we are forced to the conclusion that it was the intention of the council to make the provision in relation to fire escapes uniform and universal, as applied to the classes of houses mentioned therein.

The judgment will be reversed.

Mount, C. J., Boot, Bullerton, Hadley, and Crow, JJ., concur.

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Concurrence Opinion

Rudkin, J.

(concurring) — I concur in the construction placed on the city ordinance in the majority opinion, but, if the reversal of the judgment carries with it the implication that the respondent may be retried for the same offense, I express no opinion on that question.