, 1892-01-16
CITY ORDINANCES
RELATIVE no ERECTION OF BUILD.
INGS In CITY LIMITS

"A Case from Seattle Before the SUI.
preme Court in which the Decree
of the Lower Court is Affirmed
Powers Of the City Government
Daniel K. Baxter appellant Us. the City
Of Seattle, respondent.
In view of the statements and admis-
sfbns in the briefs of the respective parties
to this appeal we think the record pre-
sents only three questions which it is nee.
" AssaTy for us to decide. Two Of these are
questions of law and one is question OF
fact
Itis argued by appellant that ordinance
LII Of the said city of Seattle is void as
not being authorized by the charter Of said
city. The provisions Of said ordinancs
which he attacks are as follows:
SEC. 5. Any person or persons who
shall violate or cause to be violated any Of
the provisions Of this ordinance shall be
deemed guilty of a misdemeanOr, and
upon conviction thereof shall be fined in
any sum not exceeding one hundred dol
lars, and any building or structure erected,
altered, changed, repaired or removed con-
trary to the provisions Of this ordinance,
shall be deemed @ nuisance, and shall be
Qrn down or removed as the council NAV
direct, by the street commissioner, and the
expense Of such tearing down or removal
oil1it De CiitlIScu W Iu6 person OF persons
&a0slng such nuisance, and the amount
thereof to be recovered by suit in the name
ct the city in any court Of competent juris-
diction.
The provision Of the city charter SO far
as it relates to this question is as follows
And has power also to prohibit the erec-
tlOn Within the city within any prescribed
limits, Of any buildings, or any additions
to any building unless the outer walls
thereof be made of brick and mortar, o1
or iron or stone and mortar, and to provide
for the removal Of any building or any ad-
dltlon erected contrary to such prohib-
The contention Of appellant is that all
though the clause in the charter above
A1quoted authorizes the establishment Of fire
limits and the prohibition Of the erection
OF certain buildings therein, yet it does not
authorize the section Of the ordinance
above referred to, which purports to auth
orize the city officers to declare such build
Ing when erected nuisance and cause the
same to be removed without judicial pro
ceedings.
We are unable to agree with this conten-
ton. Tod 50 would in our judgment, en-
tlreiy nulllfy portion OF the provision Of
the charter above quoted. If it had been the
intention of the legislature to authorize
simply the prohibition of the erection Of
such buildings, there would have been no
reason for adding to the authority to pro
- bAV LILY NOIQp t1llQ W DIOVlQ6 IOf UQe re-
moval OF anv building 50 erected I" With
out such addition the council could have
provided by ordinance for proper pro-
ceedlng to determine as to the laWfulness
Of any proposed erection, and the use of
such language in the charter was only
necessary, or reasonable for the purpose Of
giving the common council Just such ex-
traordlnary power as was exercised in the
enactment of that portion of said ordi-
nance above quoted. 1t is contended fur
ther on the part Of the appellant that the
decree OF the superior court in giving af-
firmatiye relief to the city by Way of in
JunctlOn was erroneous. for the reason that
such building was at most only a nuisance
by prohibition and not one per SCI and
tllat-such being the case court Of equity
Will not interfere to aid the city in enforc-
ing It's ordinances which seek to prevent
the erection of such buildings.
This Hcontention is we'll sustained by
authority and is undoubtedly sound But
we DO not think it can be invoked iii aid
OF appellants case. He himself went into
seeking affirmative equitable relief and the
respondent was compelled to meet the case
thus made. La doing SO it interposed an
answer by way OF cross com mplaint in the
action, and sought equitable relief there
under. To the course thus taken by the
respondent appellant took no exception,
but voluntarily replied to such pIeading q
ana upon the issue thus made went to a
1ASn LIZ POl4 li1C ulGIlbS WlblOQG4 4dQY4 OD-
lection on his part, and is only heard to
complain as to the form in which his ac-
ton has been met when there has been d
full hearing, and decision adverse to his
rights thereon. To allow him under such
clrcums stances to now avail himself Of such
technlcal objection would be to say to him
that he was right in thus gambling upon
the result Of the hearing upon the merits.
LII 1t was favorable to him. all RIGHT. he
would accept the benefits thereof without
regard to the form in which 1t came, but if
1T was adverse to him he could not be in
lured thereby because the form in which
the same had been submitted to the court
was not the most approved one.
Appellant further claims that in fact the
puildlng Which he was erecting was not
such building as was prohibited by said
ordinance l17l. The superior court how
ever, found against him upon this PROPOSE
ton, and we think such finding was war
ranted by the proofs offered 1t is true
Cnes evidence IS somewhat conflicting, and
II We We're to accept the conclusions Of the
Wltnesss rather than the facts stated by
them there would perhaps be force in the
argument Of the appellant. But if we look
at the facts alone, as set out in the proofs,
we Think the court was justified IN finding
that the foundation Of the building, which
was twenty feet or more high, was to be of
wooden posts and that the only covering
thereof was to be sheets of CORRUGATED iron.
and II such was the state of facts it seems
to US that the building was clearly within
the prohibition of said ordinance, and Of
the clause Of the charter under which the
same was enacted.
1.-The decree of the lower court must be af-
hrmed with the costs, and it is SO ordered.
HoYT, J.
We concur: Anders, G. r.; Stiles, j. j;
Dunbar, u; Scott, ]
METEOROLOGICAL REPORT.