Opinion
No. 27282.
October 1, 1928.
1. MUNICIPAL CORPORATIONS. Statutes. Words of statute or ordinance will be taken in ordinary and proper signification, unless enlargement or modification is necessary to effectuate legislative content.
In construing a statute or ordinance, words employed will be taken in their ordinary and proper signification, unless it shall be plainly necessary to enlarge or modify signification in order to effectuate plain intent of legislature in enactment of statute.
2. MUNICIPAL CORPORATIONS. Ordinance restricting rights of private property owners must be strictly construed.
Municipal ordinance, prohibiting construction of buildings made of sheet iron, wood, or other combustible material within designated fire district, being restrictive of rights of owners of private property, must be strictly construed.
3. MUNICIPAL CORPORATIONS. Billboards with sheet iron surface held not building within law authorizing municipality to prohibit erection of certain "buildings" within prescribed limits ( Hemingway's Code 1927, section 6788).
Billboards, consisting merely of thin walls with sheet iron surface over wooden framework with supports to keep it from falling, held not a "building" within meaning of such word used in Hemingway's Code 1927, section 6788 (Code 1906, section 3352), authorizing municipality to prohibit erection of building made of sheet iron, wood, or other combustible material within prescribed limits; a "building" in the usual and ordinary acceptation of the word being a structure designated and suitable for habitation or sheltering human beings or animals or sheltering or storage of property or for use and occupation for trade or manufacture.
APPEAL from chancery court of Newton county; HON. G.C. TANN, Chancellor.
C.E. Johnson, for appellants.
The town had the power to prohibit sheet iron structures. See sec. 6788, Hem. Code, 1927; sec. 5849, Hemingway's Code 1917; sec. 3352, Code of 1906. Sheet iron and wood prohibited by this ordinance, legality of passage of which is not questioned, only its reasonableness. In Cyc., page 736, par. B, we find the two tests: First, has the municipality the power to forbid the erection? Second, has it lawfully exercised the power? The question now is whether the structures involved in this suit are buildings in the sense or meaning of the ordinance. On this point, we urge that the structures shown, even by complainant's own testimony, are forbidden, because they are large, tin, and wood or sheet iron and wood according to testimony of complainant. The ordinance forbids the construction of "any building of sheet iron, wood or other combustible material." Any structure of considerable size serving the purpose of a permanent erection is a building within the meaning of an act prescribing conditions as precautions against fire. See 4 R.C.L. 394, par 1. "The meaning of the word building, in a statute generally depends on the particular subject and its connection with other words." 4 R.C.L. 394, par. 1; Citing, Stevens v. Gourley, 7 C.B. (N.S.), 99, 1 F. F. 498, 6 Jur. (N.S.) 147, 29 L.J.C. Pl. 1, 16 Eng. Rul. Cas. 516, and note; Karasek v. Peier, 22 Wn. 419, 61 P. 33, 50 L.R.A. 345.
We submit that since the ordinance prohibited "any building," and had for its purpose to prevent origin and spread of fires, that his own testimony shows it was a building such as was and is reasonably in the purview of the statute and the ordinance, and the chancellor was in error in finding for the complainant and perpetuating the injunction, because the ordinance was a reasonable exercise of the power granted.
The statute gives power to the mayor and board of aldermen to "prohibit the erection of buildings made of sheet iron, wood, or any other combustible material," within prescribed limits, and provide for removal of same at expense of the owner. To let such a structure as Ziller defends in this case to be erected and remain under the ordinance, would defeat its manifest purpose and endanger neighboring buildings.
Amis, Dunn Snow, for appellee.
The only question to be decided is as to whether a billboard, such as the appellee had constructed, is a building or not. We say it is in no sense of the word a building within the scope of that word as used in the ordinance of the town of Union. It will be noted that the ordinance refers only to "buildings" and undertakes to set out the character of material out of which the walls, the roof, the interior, etc., are to be constructed.
The court, in construing a statute or ordinance, will assume that the legislature employed the words of the statute in their usual and most common-sense way. See State v. J.J. Newman Lbr. Co., 60 So. 215; Peeler v. Peeler, 8 So. 393; Green v. Weller, 32 Miss. 650.
There are many things which are built or erected which would not fall within the term "building." For instance, we speak of a bridge as being built but if a person were asked whether or not a certain piece of land, which had a bridge over a stream thereon contained a building, we have no doubt the answer would be "no." No one looking at a parcel of ground surrounded by a fence would speak of the same as having a building around it.
Ordinarily the word "building" signifies a house or structure composed of walls and a roof, an enclosure covered over, capable of sheltering man, beast or property.
The word "building" has received interpretation by several of the courts and we do not find where a billboard has ever been construed to be a building. As said by the New York court, all buildings are structures but all structures are not buildings. See Trusdell v. Gay, 13 Gray (Mass.), 311; Nowell v. Boston Academy of Notre Dame, 130 Mass. 209; Clark v. Lee (Mass.), 70 N.E. 47; La Cross Mil. R.R. v. Vander Pool, 11 Wis. 119; Bailey v. Hull, (Miss.), 78 Am. Dec. 706; Rouse v. Catskill Steam Boat Co., 58 Hun. 80, 13 N.Y. Supp. 126; Mekamp et al. v. Huntington Chamber of Commerce et al., 129 S.E. 314; City of N.Y. v. M. Wineburg's Advertising Co., 107 N Y Supp. 478.
We earnestly submit that the ordinance of the town of Union does not include billboards and that billboards were not within the contemplation of the framers of that ordinance. This is a restrictive ordinance taking away from individuals the right to use their private premises as they see fit and the terms thereof must be strictly construed and will not be construed by the court so as to enlarge the word's use. The board in question was merely a very thin wall, being a sheet iron surface over a frame work with supports to keep it from falling.
If these billboards are buildings, then fences, bridges, gates and other like structures are buildings, but the courts have not so held.
The appellee filed his original bill in the chancery court of Newton county seeking to enjoin the mayor and board of aldermen of the town of Union from removing or abating certain sign or billboards erected by appellee on vacant lots within the fire district of said town. A temporary injunction was issued, and upon the hearing of a motion to dissolve this injunction a decree was entered permanently restraining the town of Union and its officers from removing, tearing down, or abating said sign or billboards; and from this decree this appeal is prosecuted.
The town of Union adopted an ordinance creating a fire district within the corporate limits of the municipality and defining the boundaries of said district, which provided that there should not be constructed within said fire district any building of sheet iron, wood, or other combustible material; and provided further that any building thereafter constructed in violation of the provisions of said ordinance would be deemed a nuisance and be abated after five days' notice to the owner of the building to remove same, and authorized the marshal of the said town to cause the abatement and removal of such building by force at the cost of the owner in the event it was not removed by him in response to the notice so to do. Acting under the provisions of this ordinance, the town of Union, through its proper officers, served notice upon the appellee that certain sheet iron and wood structures erected by him and used as sign or billboards violated the provisions of this ordinance, and were therefore nuisances which must be removed from the fire district within five days after receipt of notice, and that unless they were so removed the marshal of the town would cause the same to be removed and abated at the expense of appellee.
The proof shows that the billboards in controversy, which were erected across the front of vacant lots between buildings, were about fifty feet long and eleven feet high, and were constructed by using a piece of four by four timber as a base on which were placed several upright wooden posts with a two by four timber along the top of these posts. Wooden braces, running at an angle from this framework to the ground, were attached to the side of the framework furthest away from the street, and to this framework sheet iron was attached so as to form a smooth surface facing the street. Behind one of these billboards, the owners of one of the adjacent buildings had erected an inclosed shed in which was stored hardware. This shed extends to within a few inches of the billboard, but was not attached thereto. Behind the other billboard, there was erected a wooden shed under which coal was stored. But the testimony is undisputed that the appellee had no connection with, or control over, any of the parties who erected these wooden structures behind the billboard, and there was testimony to support a finding that these structures were removed before the hearing of this cause in the court below; and the evidence is to the effect that the only right acquired by the appellee under his lease of these vacant lots was the right to erect and maintain sign or billboards.
The bill of complaint filed by appellee only sought to restrain the municipal authorities from removing, tearing down, or abating the billboards erected by the appellee, and the decree of the court below restrained them from removing or abating only these billboards, and in no way affected their right to abate any other structures on these lots which were violative of the provisions of the fire ordinance of the town. This ordinance was enacted in pursuance of the provisions of section 3352, Code 1906 (section 6788, Hemingway's 1927 Code), which authorizes the mayor and board of aldermen of a municipality to "prohibit the erection of buildings made of sheet iron, wood, or other combustible material" within prescribed limits, and to provide for the removal of such buildings at the expense of the owner thereof when erected contrary to the ordinance of the municipality. The validity of the ordinance is not questioned in this proceeding, and the only question presented for decision by this appeal is whether a billboard of the description outlined above is a "building" within the purview of the statute authorizing municipalities to prohibit the erection of a building made of sheet iron and wood.
In construing a statute or ordinance, the words employed will be taken in their ordinary and proper signification, unless "it shall be plainly necessary to enlarge or modify this signification, in order to effectuate the plain intent of the legislature in the enactment of the statute." Peeler v. Peeler, 68 Miss. 141, 8 So. 393; State v. J.J. Newman Lumber Co., 103 Miss. 263, 60 So. 215, 45 L.R.A. (N.S.) 858; Green v. Weller, 32 Miss. 650. The ordinance here involved is restrictive of the rights of the owners of private property and must be strictly construed; and the words of the ordinance will not be construed by the court so as to enlarge their meaning beyond the usual, ordinary significance thereof. In the usual and ordinary acceptation of a word, a "building" is a structure which is designated and suitable for the habitation or shelter of human beings or animals, or the shelter or storage of property, or for use and occupation for some purpose of trade or manufacture. The billboards in question were merely thin walls having a sheet iron surface over a wooden framework with supports to keep it from falling; and this structure was not a building within the meaning of that word as used in the statute authorizing municipalities to prohibit the construction of buildings made of sheet iron, wood, or other combustible materials.
The proof is undisputed that the appellee did not build a roof or other structure to connect with these billboards, and that he did not have or exercise any control over any structures on these lots except the billboards erected by him. We are therefore of the opinion that the decree of the court below prohibiting the municipality from removing or abating these billboards is correct.
Our interpretation of the meaning of the word "building" is amply supported by the decisions of courts of other states. In Truesdell et al. v. Gay et al., 13 Gray (Mass.) 311, the Massachusetts court said that —
"The word `building' cannot be held to include every species of erection on land, such as fences, gates or other like structures. Taken in its broadest sense, it can mean only an erection intended for use and occupation as a habitation or from some purpose of trade, manufacture, ornament or use, constituting a fabric or edifice, such as a house, a store, a church, a shed."
In Nowell v. Boston Academy of Notre Dame, 130 Mass. 209, it was held that a wall was not a building, the court saying that the word "building" in its ordinary sense denotes a structure or edifice inclosing a space within its walls and usually covered with a roof, such as a house, a church, a shop, a barn, or shed. Again, in the case of Clark v. Lee, 185 Mass. 223, 70 N.E. 47, the Massachusetts court held that a wall does not come within the term "building." In the case of La Crosse Milwaukee Railroad Co. v. Vanderpool, 11 Wis. 119, 78 Am. Dec. 691, the court held that the word "building" has a common, well-understood meaning, including only those structures "which have a capacity to contain, and are designed for the habitation of man or animals, or the sheltering of property." In the case of City of New York v. Winebergh Advertising Co., 122 App. Div. 748, 107 N YS. 478, it was held that a sky sign in the nature of a billboard, or board on which advertising was displayed, was not a building within any sense of the word.
The judgment of the court below will therefore be affirmed.
Affirmed.