State v. . Johnson , 114 N.C. 846 ( 1894 )

A jury trial was waived, and the facts agreed are as follows: Defendant was occupying and controlling a two-story wooden frame house with brick basement, situated in the city of Winston, within 1,000 feet of the Court Square, and about 9 December, 1892, the house was partially destroyed by fire; that on 6 January, 1893, the defendant made a contract with certain builders to have the house repaired, at the cost of $490; the original cost of the building, including brick basement, was about $2,000. Shortly after work began under said contract, the defendant was arrested, tried and convicted before the mayor, and on appeal to the Superior Court the case was dismissed, on motion to quash the warrant. About 17 March, 1893, the defendant, without the consent of the board of alderman, placed said contractors at work again on the building, and he was again arrested and tried before the mayor and fined, and he appealed from the judgment to the Superior Court. The following ordinances relating to this matter were adopted by said board;

"That, for the protection of the city against fire, the following ordinances be enacted, under chapter 5, as sections 36 and 37 of said chapter 5 of the ordinances of the city: Section 36. That the fire limit be the territory from the center of Court Square, extending 1,000 feet in each direction; that it shall be unlawful, without the consent of the board, for any person or corporation to erect, alter or repair any wooden building within said fire limit, and any person or corporation violating the same shall be fined $50; that for each day such person or corporation continues to erect, alter or repair such building it shall constitute a separate violation of the ordinance, etc. Section 37. That any (848) person who shall assist in constructing or repairing any building prohibited in above section shall be fined," etc.

There were other sections of the ordinances prohibiting the erection of wooden buildings in the business portion of the city without the written consent of the aldermen, etc.; and the fire limit — 1,000 feet from the Court Square — was established, etc.

The defendant appealed from the judgment. Municipal corporations are the creatures of the Legislature, and their powers may be curtailed, enlarged or withdrawn at the will of the creator, whose control over them is limited only by the restriction that no statute will be enforced which impairs the obligation of a contract, interferes with vested rights, or is in conflict with any provision of the organic law of the State or nation. It is too well settled to recapitulate or even justify discussion that towns, certainly by virtue of an express grant of authority to do so, and according to most authorities, by implication, arising out of the general-welfare clause, if there is no general law to the contrary, are empowered to prescribe a fire limit and forbid the erection of wooden buildings within such bounds as they may by ordinance prescribe. 15 A. E., 1170; 1 Dillon Mun. Corp., sec. 405; Horr Bemis Mun. Ord., sec. 222; Keilinger v. Bickel, 117 Pa. St., 326. The weight of authority seems to be also in favor of the proposition that the Legislature has the power to prevent the erection of wooden buildings in such corporations, or to delegate to the municipalities the authority to do so, even where the enforcement (849) of the law or ordinance causes a suspension of work in the erection of structures of this kind by persons who are carrying out contracts for their erection, made previously with the owners of the land.Cordon v. Miller, 11 Mich. 581; Ex parte Fiske, 17 Cal. 125. Persons, in contemplation of law, contract with reference to the existence and possible exercise of this authority when it is vested in the municipality. Salem v.Magness, 123 Mass. 574; Munn v. Illinois, 94 U.S. 113; Woodlawn Cemeteryv. Everett, 118 Mass. 354; Commissioners v. Intoxicating Liquors,115 Mass. 153. Upon this same principle all agreements for building are deemed to be entered into in view of the contingency that such power may be granted by the Legislature (when it has not already been delegated) while the contract is still in fieri. 15 A. E., 1171.

While it might be unreasonable to prohibit even the slightest repairs to wooden buildings standing within the fire limits prior to the passage of a statute or ordinance establishing such limits, the power to prevent repairs is delegated, and presumably exercised, for the protection of property; and where a wooden structure within the bounds is partially destroyed by fire already, it is not unreasonable to require a new proof to be made of material less liable to combustion, or to forbid the repairs altogether when the damage to the building is serious, and, that end, to compel the owners to give notice to the town authorities of their purpose to repair, and of the character of the contemplated work. Lewisville v. Webster,108 Ill. 414.

We are aware that there is much conflict of authority as to the reasonableness of ordinances forbidding all repairs, or the enforcement of them, so as to prevent replacing roofs with the same material used before their destruction. Hoor Bemis, sec. 223 (214); Brady v. InsuranceCo., 11 Mich. 425; Ex Parte Fiske, supra. But in this particular instance the Legislature has granted a municipality the power to supervise or prevent the replacing of the roof with (850) another of shingles instead of constructing one of material less liable to destruction, and we are not prepared to question its authority to do so, since, upon the principle already announced, persons contracting with reference to the chances of the granting, as well as the exercise of such powers, acquire no vested rights, and, afterwards voluntarily incurring all of the risks incident to their situation, have no reason to complain of the loss when it befalls them.

The court imposed, a fine of $50. There was no attempt to enforce the portion of the ordinance imposing a penalty of $10 for every hour the building was permitted to remain. There may be more doubt as to the reasonableness of that provision. Commissioners v. Wilkins, 121 Mass. 356. But it is not necessary to pass upon a question not fairly raised, and we forbear to do so. The judgment is

Affirmed.

Cited: S. v. Lawing, 164 N.C. 495, 496; S. v. Shannonhouse, 166 N.C. 242.