Birmingham Ry., Light Power Co. v. Kyser

Upon a reconsideration of the ordinance, the court concludes that it does not give the fire board an arbitrary discretion in requiring or exempting buildings from fire escapes. The ordinance provides for certain kinds of fire escapes on all buildings over two stories high, except fireproof buildings or those which at the time had adequate escapes in case of fire. In other words, it deals with three classes, buildings over two stories high which have no adequate fire escapes, fireproof buildings, and buildings which already have adequate fire escapes, the last two being dealt with as exceptions from the ordinance, and the status upon which they are to be excepted is fixed by the ordinance itself, and the fire board is simply authorized to ascertain the status so fixed and to enforce the said ordinance. The board has no authority to exempt or discriminate in favor of or against buildings of the general class dealt with in the ordinance; that is, all buildings over two stories high not being fireproof or then having fire escapes. It is simply the duty of the board to ascertain fireproof buildings and to also determine whether or not others already have adequate fire escapes, and to so certify, and to compel fire escapes upon all buildings over two stories high that are not exempt by the terms of the ordinance; that is, which are not fireproof and which do not already have adequate fire escapes. An arbitrary discretion is one which discriminates between those of the same class or similarly situated, and the ordinance in question does not authorize the fire board to discriminate between buildings of the same class, but merely requires it to ascertain and determine which ones belong to the respective classes as fixed and defined by the ordinance. We therefore hold that the ordinance in question is not void, but should be upheld. Crumpton v. City of Montgomery,177 Ala. 232, 59 So. 294; R. R. Commission v. Alabama Northern R. R., 182 Ala. 363, 62 So. 749; Whaley v. State,168 Ala. 152, 52 So. 941, 30 L.R.A. (N.S.) 499; Wilson v. Eureka, 173 U.S. 32, 19 Sup. Ct. 317, 43 L.Ed. 603; Dotson v. La. Lbr. Co. (La.) 80 So. 205; Fischer v. St. Louis,194 U.S. 370, 24 Sup. Ct. 673, 48 L.Ed. 1018; Ex parte Fiske,72 Cal. 125, 13 P. 310; 6 R.C.L., under the head of "Constitutional Law," § 174; Arms v. Ayer, 192 Ill. 601,61 N.E. 851, 58 L.R.A. 277, 85 Am. St. Rep. 357; Willy v. Mulledy, 78 N.Y. 313, 34 Am. Rep. 536; Sewell v. Moore, 166 Pa. 570,31 A. 370. Where ordinances, like statutes, are susceptible of two interpretations, one of which will nullify same and the other sustain it, that interpretation should be given which will uphold it, notwithstanding the other may be the more natural. State ex rel. Collman v. Pitts, 160 Ala. 133,49 So. 441, 686, 135 Am. St. Rep. 79. We do not mean to intimate that the interpretation now given is less natural and reasonable than the one previously given.

This ordinance is not so broad and general as the one considered in the West Case, supra, and can well be differentiated therefrom. There the ordinance made no attempt to classify or define the conditions under which the business could or could not be excluded, but gave the counsel the unbridled discretion of excluding or permitting the same without the fixation of a reasonable basis or classification.

Nor are we persuaded that the ordinance should be stricken as unreasonable because it prohibits locks and bolts upon all doors to rooms which do not open into or front upon the passage, hallway, or other exit. Milbrat Case, supra; section 1264 of the Code; Lindsay v. Anniston, 104 Ala. 261, 16 So. 545,27 L.R.A. 436, 53 Am. St. Rep. 44; McQuillin on Municipal Corporations, § 724, p. 261.

We cannot say that the defendant was entitled to the general charge, owing to a variance between the allegation and the proof, because only a part of the ordinance was introduced. As the whole ordinance was set out in the complaint, all, and not a part of it, should have been introduced, if the unnecessary act of introducing the same as evidence was attempted. This, however, if error, was error without injury, as the whole ordinance was just as much before the court as if it had been introduced in evidence; and the fact that a part of it was introduced did not prevent the court from taking notice of and considering the whole ordinance in trying the case and in giving and refusing charges, as the court had judicial notice of same. Acts 1915, p. 297, § 7; Birch v. Ward, 75 So. 566.⁴ Neither was the defendant entitled to the general charge because the plaintiff did not prove each averment in the complaint as to the dereliction of the defendant with respect to the ordinance. This is not a case where the plaintiff relied upon conjunctive acts as producing his cause of action, but where he set up a failure to comply with the different terms of the ordinance, and, while the requirements of the ordinance may have been set out in the conjunctive, proof of either substantial or material requirement would be sufficient. Segrest v. Roden Coal Co., 78 So. 756.⁵ It is sufficient to say that there was proof showing no sign in red letters denoting the location of the fire escapes, though we do not mean to hold that the jury could not also have inferred from the evidence a noncompliance with the ordinance in other respects. What Matthews testified as to the inspection by himself and Bennett of the building and escapes amounted to no more than his evidence of the facts stated, as he gave no certificate of exemption as provided by the ordinance, and even if he had done so that would not have been conclusive against the defendant's liability.

The defendant was not entitled to the general charge as to count 6, because added more than one year after suit was brought. It was within the lis pendens and related back. Section 5367 of the Code of 1907.

The application for rehearing is granted, the judgment of reversal is set aside, and the judgment of the trial court is now affirmed.

MAYFIELD, SOMERVILLE, and THOMAS, JJ., concur.

⁴ 200 Ala. 118.

⁵ 201 Ala. 382.

On Application of Appellant for Rehearing.