Klingler v. Bickel , 117 Pa. 326 ( 1887 )

Opinion,

Mr. Justice Paxson :

There are seventeen assignments of error in this case. To discuss them in detail would be tedious. I can best dispose of them by indicating briefly the principles of law involved.

This was an action of trespass vi et armis quare clausum fregit, brought by the plaintiffs below against the defendants for demolishing a frame building in the course of construction in the borough of Butler. The plaintiffs were the owners or lessees of the building; the defendants were citizens of Butler, and justified under the authority of the town council of that borough.

On the seventh day of April, 1886, in pursuance and by authority of an act of assembly entitled “ A further supj)lement to an act regulating boroughs,” approved the third day of April, 1851, the burgess and town council of the borough of Butler passed an ordinance, the first section of which provides that “ No person or persons shall erect or cause to be erected any frame or wooden dwelling house, shop, warehouse, store, carriage house, stable, or other frame or wooden tenement, .within the following limits, viz.: Main street or the intersection of Penn , street, southward, to the intersection of Wayne street, and for one hundred and forty feet on either side of said Main street, from Penn to Wayne streets.”

The second section prohibits the erection of frame buildings within other designated limits of said borough, without a permit from councils.

The third section provides that “any person or persons violating the provisions of this ordinance shall be compelled to remove the structure or pay the cost of removal by council, with the addition of twenty per centum, and also pay a penalty of fifty dollars for every day the same shall remain standing within the limits prescribed in this ordinance,” etc.

The plaintiffs were the occupiers of a frame stable situated within the prescribed limits. It had been occupied by them for several years; was situated in the,closely built up portion of the borough; was used as a livery stable, and it was alleged was a resort of disorderly persons and endangered property in the vicinity. On the morning, of May 23, 1886, the building was destroyed by fire. The next morning the town council met and passed the following resolution: “Resolved, That the ordinance passed the seventh day of April, 1886, be enforced to prevent the erection of frame buildings on the square bounded on the north by a ten-foot alley; "east, by a twenty-foot alley; south, by West Jefferson street, and west, by Washington street, and that the lessees and lessors of the ground included within the above boundaries be notified of • this action.”

A copy of the above resolution was served the same morning upon the plaintiffs. The same afternoon, in defiance of the ordinance of council and of the notice first served upon them, the plaintiffs commenced to rebuild the stable as a frame building. In the meantime, the town council assembled and passed a resolution directing the high constable to proceed at the earliest possible moment to remove the erection made by the plaintiffs. In pursuance of this direction, the high constable and the posse summoned by him for that purpose, proceeded to take down and remove the building so far as it had been rebuilt. It was for this action on the part of the borough authorities that this suit was brought. The court below held that the ordinance was invalid, and permitted the plaintiffs to recover.

No one at this day doubts the power of the legislature to prohibit the erection of wooden buildings within the limits of a city or borough. It is a police regulation demanded in many instances by the public safety. The danger of fire is much greater in the case of wooden buildings, than in those of brick or stone. Upon this ground, and upon this alone, can this kind of legislation be justified. The inconvenience of the individual citizen in such case must give way to the public convenience and safety. Nor can it be doubted that the legislature may confer the same power upon municipal corporations, such as cities and boroughs. They are but subdivisions of the state, created by the state, for the comfort and convenience of the citizens dwelling therein. The state confers upon them a portion of its sovereignty for the purpose of enabling them to control their local affairs.

All this is plain enough. The court below, however, held that the ordinance of council was invalid, because it prohibited the erection of frame buildings in only a portion of the borough; that, under the provision of the constitution prohibiting special or local legislation, it was beyond the power of the council, as it was beyond the power of the legislature, to legislate for only a portion of the borough.

Granted the constitutional prohibition, and that under it the legislature may not pass any law “ regulating the affairs of counties, townships, wards, boroughs, or school districts,” it by no means follows that when the legislature by a general law confers upon a borough the power of regulating its local affairs, it may not do so by ordinances that are special in their character. The object of the constitutional provision was clearly to prevent the legislature from interfering in local affairs by means of special legislation; and, if the town councils of cities and boroughs cannot regulate them, they are in a bad way indeed. The principle contended for would prevent the town councils of a city or borough from passing an ordinance to pave one street, unless it also provided for the paving of all the* other streets within the limits of the municipality. In Baldwin v. The City of Philadelphia, 99 Pa. 164, it was decided that an ordinance of the city was not a'“law” ■within the meaning of that clause of the constitution which declares that “ no law shall extend the term of any public officer, or increase or diminish his salary or emoluments after his election or appointment.” The reasoning of that case applies equally to that section of the constitution prohibiting special legislation.

Nor is the ordinance in conflict with article XIV., section 1, of the constitution of the United States, which says: “Nor shall any state deprive any person of life, liberty or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.” The ordinance confiscates no man’s property. It forfeits nothing. It merely prohibits the erection of buildings of a character acknowledged to be dangerous in closely built up towns.

Moreover, if the ordinance had been general in its character, and had prohibited the erection of frame buildings in every part of the borough, it might have been open to the objection of being unreasonable and therefore void. The only reason, as before stated, why such prohibition can be sustained at all, is the danger from fire to surrounding buildings. Where such reason does not exist because of the rural character of a portion of the borough, it might be oppressive and unreasonable to apply such an ordinance.

We are of opinion that the ordinance in question was a lawful exercise of power by the town council of the borough of Butler. This brings us at once to the question, has the council the power to enforce its ordinance against persons who openly and defiantly violate it? We do not think the power of council in this respect is limited to enforcing the payment of the fine'imposed by the third section of the ordinance. That would not be an adequate remedy. A man may not construct an inflammable building in the heart of the borough and defy the authorities by merely paying a fine, otherwise he could preserve such building indefinitely, to the terror of the inhabitants. The third section contains the further provision that the person violating the ordinance shall be compelled to remove the structure, or pay the cost of removal by council. The plaintiffs were warned by council not tó put up this building. They saw proper to proceed in defiance of the ordinance and the notice, to commence to reconstruct it. The high constable, in obedience to the order of council proceeded to tear it down. In this there was neither confiscation nor forfeiture. It was merely the enforcement of the law against those who defied the law. We are of opinion that the act of the defendants was lawful, and that no action lies against them for this cause.

We need not discuss the case of Fields v. Stokley, 99 Pa. 306. In that case the building had been erected in violation of a similar ordinance, and was demolished by the mayor. But there was no action by city councils. The mayor proceeded upon his own responsibility. He justified upon the ground that it was a public nuisance and in this he succeeded. The jury found that it was such nuisance. Every frame building erected in a closely built up portion of a town, in violation of a lawful ordinance prohibiting it, may be said to be a nuisance, owing to the danger from fire; but it is not such a nuisance per se as would justify a private person in abating it. But, when it comes to a question of the power of council to abate it and enforce its ordinance, we have an entirely different question before us.

Of course all we have said applies only to such buildings as are erected subsequent to the passage of the ordinance. Buildings erected before are not affected by it. They are entitled to stand until such time as they come to be rebuilt by reason of decay, destruction by fire, or other cause.

What we have said covers the case fully, and renders the discussion of other points unnecessary.

Judgment reversed.