112 So. 109 | Ala. | 1927
This is a bill by the appellant to restrain the police authorities of the appellee, the city of Anniston, from interfering with the completion and maintenance of a building on appellant's lot located in what is designated as the "outer fire limit," as established by Ordinance No. 230, adopted on May 21, 1925, the erection of which was begun under a permit issued by W. O. Ward, as "building inspector," who, the bill as *533 amended asserts, had authority to issue said permit.
On the other hand the appellee contends that Ward was not the building inspector, and was without authority to issue the permit, and, furthermore, that the permit authorized the construction of the building of "wood material," to be used as a store for the sale of goods, in violation of section 1005 of the Code of Ordinances of the city of Anniston, adopted in 1909, as well as the provisions of section 2 of Ordinance 230.
The equity of the bill rests upon the asserted invalidity of Ordinance 230, which creates two fire limits, one designated as "the inner fire limit" and the other "the outer fire limit," and provides:
"Whenever the term 'fire limit' is used in this ordinance it shall be understood to refer to all territory in either the inner or outer fire limits, provide that nothing herein shall be construed to prohibit the erection or repair of frame buildings outside of inner fire limit, but within outer fire limit, when such building is used exclusively and continuously for dwelling purposes, all such dwellings to be covered with incombustible roofing."
While section 1005 of the Code of Ordinances provides:
"Fire Limits: What Structures Forbidden In. — It shall be unlawful for any person to erect, or cause to be erected, or repair, or remove, or add to any frame, wooden or corrugated iron building situated within the fire limit, unless such work is done with fire proof material."
Section 2012 of the Code of 1923, referred to by the appellee as the source of its authority, provides inter alia:
"The council may prescribe fire limits in any city or town and buildings of wood or other inflammable material, shall not be erected therein," etc.
The provisions of Ordinance 230, which prescribes an "outer fire limit" and provides for the erection of buildings to be used continuously and exclusively for dwellings, of wood or other inflammable material, are clearly in conflict with the quoted provisions of the statute, and unless the last proviso of the ordinance can be eliminated and the remainder left as expressing the legislative will, the whole ordinance must be declared void. Baader v. City of Cullman,
The controlling purpose of the ordinance is to create two distinct fire limits in which a different rule as to the character of material to be used in the construction of a certain class of buildings is prescribed, and its provisions are so interlinked with reference to the two that it is more than probable that it would not have been adopted so as to cover the outer fire limit without the proviso allowing the use of other than fire proof material in the construction of residences, and hence the whole ordinance must fall.
We are not of the opinion that the bill is without equity, and the decree of the circuit court sustaining the demurrers and dissolving the injunction is reversed.
Reversed and remanded.
ANDERSON, C. J., and SOMERVILLE and THOMAS, JJ., concur.
