Evening journal., 1914-03-04
CITY LOSES
BUILDING LAW
LITIGATION
CONTINUED From First PAGE

fer power on abutters or others to oc-
cupy permanently a part of the street
Tor private use.
IS. That the bulk window in question
was not repaired or altered. but was
erected OF built, and is in fact a new
window.
The defendant contends as follows:
=. The resolution is void for the fol-
lowing reasons;
-tai II is taking OF property with
out due process of law, without con
dcmnation and without compensation.
OBJ Il is in effect a,violation Of sec
tion 81 OF the charter, which forbids an
exception under a general ordinance.
'tcl II Is unfair. unreasonable, i'm
partial and discriminating. II permits
certain persons TO have bulk windows
and denies 10 others the same right
That the defendant neither
TO have built or erected the
bulk window. he had II repaired
3. The resolution should be strict
y construed.
The paramount control over the
streets is vested in the Legislature.
This power OF control the Legislature
may delegate. and perhaps has dele
gated, so far as the city Of Whining
ton Is concerned, and when this now
er is so delegated, II is held in trust.
to be exercised as the circumstances
may require. and the manner OF exer-
cising the power. II prescribed by
statute. must be followed.
ttTfba ftrtr,sov-.. ..,.wr.1n. -
is for the free passage OF the public.
individuals have no authority to OBJ
struct such use, and the right TO OBJ
struct cannot be acquired by pre-
scription And It seems also. no
right can be acquired by permission
from municipal authorities. which Is
given without legislative authority.
'Abutting property owners have no
general right TO encroach upon the
street, with any part OF the building
erected by them.
Municipal authorities, under gen.
eral powers to regulate and control
streets, cannot authorize such en-
croachments, but the Legislature, un-
der It's paramount control OF streets
may authorize or empower municipal
authorities to permit encroachments
by abutting owners upon sidewalks,
such as awnings, bay windows, steps,
sc.
There is an abundance of authority
to support the foregoing PROPOSE
tions.
Council passed an ordinance on
June l6, 1859. Chapt D. $50, which
provided among other things:
That if any person - - - shall
hereafter construct, place or build over
any pavement street or sidewalk in
this city. any bulk or projecting win
dow. window lamb, window frame or
window sill, more than eighteen inches
from CT beyond the true building line
on said street. - - - sor shall keep,
have or retain. after three weeks notice
in writing from the Mayor Of the city,
TO abate or remove the same, any such
bulk OF projecting - .. - - window
window frame, window iamb or win.
dow sill already erected, placed or built
and projecting az aforesaid, he shall be
guilty OF a common nuisance.
The bulk window which is concerned
in this litigation was one Of the many
built while this ordinance was in force.
"l disclaim any intention TO pass
upon the question as 10 whether or not
Council had authority to pass such an
ordinance.
"rhe resolution OF the street and
Sewer Department, approved September
10, 1911 repealed this ordinance. and
there Is now no ordinance or resolution
in existence in relation To bulk win
dows built prior 20 the 10th day OF
September, 1911. II therefore follows
that such bulk windows exist today
without authority Of law. and are en-.
croachmcnts upon the streets.
"As abutting property owners have
no property rights in the streets. there
cannot be- a taking Of property without
due process of law as contcnded bv de-
fendants counsel He has produced no
which supports such con
tention
81 am of the opinion that the resolu-
tion Of the Street and Sewer Depart
ment Is not violation OF Section 3 OF
tho charter which forbids any exemption
under general ordinance, because there
is no exemption stated in the ordi-
nance.
And ] am clearly OF the opinion that
Section o of the resolution is unfair
and discriminating. Any legislation
concerning bulk windows which in its
operation permits one man 20 have a
bulk window extending sixteen or
eighteen inches from the building line.
and which forbids his next door neigh.
Dor from having a bulk window unless
il is built within the building line is
most unfair, and certainly does discri-
inmate between the ones who now have
bulk windows and the persons who may
hereafter desire 10 erect bulk windows;
and being OF that opinion Il follows
that Section of the resolution is in
valid.
Ibid the defendant in this case
cause to have built or erected the
bulk window IN question, OF did he
have II 'alterated or repaired?
The rule in. this State for the con-
struction OF statutes (Rev. Code p. 42)
provides that all words and phrases
shall be construed according 10 the
common and approved usage of our
language.
There seems TO be no reason why
the same rule cannot be applied to
the construction of resolution Of the
Street and Sewer Department
when one uses the expression
that he built or erected a bulk win
dow, the common understanding Of
that expression would be that the
person built a new window. and an ex-
animation Of the authorities. which
have passed upon the meaning Of the
words built or construct bears out
that construction. There are cases
TO the contrary. but they are very
few In number.
The defendant in this case did not
build OF construct a new window.
In my opinion. under the facts in this