Count 1 of the complaint was not subject to defendant's demurrer. B. R., L. P. Co. v. Buff, 77 So. 388.1 Nor was count 5 subject to the demurrer. B. R., L. P. Co. v. Milbrat,78 So. 224.2 Count 5 in the case at bar is not quite so broad in averment as was a similar count in the Milbrat Case, but it contains enough to show that the defendant was such an owner, proprietor, or manager of the building as contemplated by the statute under the construction given same in said case.
Count 6 is based upon an ordinance of the city of Birmingham there set out (and which will be set out in full by the reporter). The said ordinance first provides for standard fire escapes, or other fire escapes equally as good, upon the buildings there designated. It then creates a board to pass upon fire escapes, etc., and further provides that said board "shall have authority in case of any fireproof buildings or other buildings that in their judgment they may deem such escape not necessary in consequence of adequate provisions having been already made for the safety in case of fire, * * * and in such case of exemptions they shall give the owner of the building a written certificate to that effect and their reasons therefor if so desired." This quoted provision is elliptical, and the words "to exempt the same" should appear as marked between the words "fire" and "and" to carry out the true meaning and intent of the provision as gathered from the context of same, and when considered in its entirety and the supplying of words in a statute or ordinance seem permissible in order to carry out the intent and to avoid repugnancy or inconsistency with such intention. Lewis' Sutherland, Statutory Construction, § 382. On the other hand, without this interpolation, this portion of the ordinance might be void for uncertainty, and the balance is so inseparable therefrom as to be thereby affected, as we cannot say that the ordinance would have been adopted without this provision; that is, that fire escapes would have been required in all events and upon all conditions had not the board been given the right to exempt some of the buildings. At any rate, counsel for both sides argue and treat the ordinance as we interpolate, and we will so consider it. It will be observed that, while the ordinance provides for fire escapes on all buildings of the class dealt with, and does not by its own force exempt any buildings, it gives the board the authority to exempt not only fireproof buildings, but all others which in their opinion do not need fire escapes. In other words, to sift it to a final analysis, it simply provides for fire escapes for the buildings dealt with unless the board in its judgment and discretion should deem the same unnecessary. Or, to express it differently, it in effect only requires fire escapes on all of such buildings as the board may deem necessary. In the case of City of Montgomery v. West, 149 Ala. 311, 42 So. 1000, the opinion, in quoting from Smith on Modern Municipal Corporations, §§ 526 and 530, says that —
"The ordinance must be impartial and general in its operation. So far as it restricts the absolute dominion of the owner over its property, it should furnish a uniform rule of action, and its application cannot be left to the arbitrary will of the governing authorities. * * * Ordinances which invest a city council, or a board of trustees, or officers, with a discretion which is purely arbitrary, and which may be exercised in the interest of a favored few, are unreasonable and invalid."
This quotation conforms to the rule declared in McQuillin on Municipal Corporations, § 728, Dillon (5th Ed.) § 598, and 19 R.C.L. § 118, p. 813, each citing our West Case *Page 124 in support of same. See, also, Talladega v. Sims, 8 Ala. App. 471,62 So. 958, Wo v. Hopkins, 118 U.S. 356,6 Sup. Ct. 1064, 30 L.Ed. 220, and many cases cited in note 6, 19 R.C.L. to section 118, p. 813. Our West Case is also reported in 9 L.R.A. (N.S.) 659, 123 Am. St. Rep. 33, and 13 Ann. Cas. 651, wherein appear complete and exhaustive notes, citing numerous authorities on the subject, and while they are not entirely uniform, the weight and soundness seem to be with the West Case. Moreover, many of those declaring to the contrary dealt with ordinances affecting liquor or other trades and subjects which could have been prohibited. Such an ordinance as was dealt with by our own court in the case of Cooke v. Loper,151 Ala. 546, 44 So. 78, and which was there differentiated from the West Case. The ordinance in question is a flagrant infringement of the rule and must be declared void and of no effect, and the trial court erred in not giving the defendant's requested general charge as to count 6.
The ordinance here is quite different and involves a different principle from the statutes considered in the Whaley Case, 168 Ala. 152, 52 So. 941, 30 L.R.A. (N.S.) 499, and subsequent cases following same. There the Legislature enacted the law regulating the subject with uniformity and without an arbitrary discretion as to the enforcement and administration of same, but merely delegated to another authority the fixation of a status upon which the law could operate. It authorized no arbitrary discretion between those upon whom the law was to operate; simply delegated the authority of supplying the subject upon which the law should operate. The principle involved in the Whaley Case is like unto the local option, stock, and tick laws, where the subject is dealt with and regulated, but it is left with the voters, boards, or certain named authorities to determine whether or not the subject shall come within the influence of the law.
We are also aware of the rule as laid down in the Milbrat Case, supra; that is, that an ordinance passed pursuant to express legislative authority will not be declared unreasonable; and we also cite to this effect the case of Lindsay v. Anniston, 104 Ala. 261, 16 So. 545,27 L.R.A. 436, 53 Am. St. Rep. 44. We also think that section 1264 of the Code of 1907 expressly authorized so much of the ordinance as was considered in the Milbrat Case, and which is set out in the report of the case, but the authority expressed in said section of the Code did not justify the last part of the ordinance or the ordinance in its entirety. It does not authorize the municipality to dispense with setting forth the subject upon which the ordinance is to operate or upon which it shall not operate, or the leaving of the enforcement of same to the arbitrary discretion of a board or officer, even if the Legislature could have done so, which we do not decide.
This holding is in no sense in conflict with the holding in the Milbrat Case. There only the first part of the ordinance was presented and considered, and it was attacked upon points different from the one now involved, and we repeat that, if only so much of the ordinance as was there considered was the complete ordinance, it would not be subject to the infirmity then suggested, or now suggested. True, the courts take judicial notice of all ordinances of the city of Birmingham. Section 7, Acts 1915, p. 297; Birch v. Ward, 75 So. 566.3 But this does not preclude the question here decided by the decision in the Milbrat Case, where it does not appear that the whole ordinance was brought to the attention of the court, or that the present objection to same was made or considered, and the present holding is in thorough accord with the Milbrat Case.
It is suggested by the appellee's counsel: First, that appellant, not having been exempted, cannot complain of the invalid part of the ordinance; and, second, that the invalid portion can be stricken and the balance upheld. It is true we have a rule that he who can successfully complain of the validity of a statute or ordinance must be thereby affected, and had this appellant been exempted it doubtless could not complain, but it was not exempted, and is the proper one to complain of the arbitrary feature of the ordinance. We are also aware of the fact that the books are full of cases where the invalid part of a statute has been stricken and the valid portion enforced, but in those instances the two were separable and independent, and were such laws as indicated that the valid portion would have been enacted regardless of the other part. Here the invalid portion is inseparable from the valid portion to such an extent that, if it was stricken, it would make the ordinance operate in all buildings dealt with whether or no, notwithstanding the ordinance authorized exemptions. The striking of the invalid portion would necessarily give the act a broader field of operation, Wilkinson v. Stiles, 200 Ala. 279,76 So. 45, and authorities there cited.
We do not think that the defendant was entitled to the general charge as to counts 1 and 5 as for a failure of proof, as this was a question for the jury. Buff and Milbrat Cases, supra.
The appellant insists that it was entitled to the general charge as to the whole case upon the idea that the intestate was, as matter of law, guilty of contributory negligence; that, while the court held in the other cases that the question of contributory negligence was properly submitted to the jury, the evidence in this case is much stronger against this intestate. We may concede that the notice given the intestate as to the *Page 125 fire and the suggestion that he get out was, perhaps, a shade more insistent; still we think it was a question for the jury as to whether or not an ordinarily prudent person should or would have acted differently under the same circumstances. The witness McLaren stated in substance:
"When I first heard of the fire I was in the power department room. Messrs. Kyser, McDaniel, and Bell were also in said room. I heard the word 'Fire!' hollered by the negro elevator man. No one else told me there was a fire, and I did not hear any one else holler 'Fire!' I went out and investigated, and saw a small trickling smoke up the stairway, etc. I then went back there into the power department and gathered up a few articles, etc. When I went back in the room I told Mr. Kyser the building was on fire. He was at the desk or table by the window on Twenty-First street using the telephone. He nodded to me this way (illustrating) when I told him the building was on fire. He did not stop the conversation over the telephone; looked at me and nodded and continued his conversation. When I was gathering up my books I heard Bell tell Kyser, 'Kyser, the building is on fire; you better get out.' I didn't pay any attention to Kyser at that time. I was busy getting up these things. When I last saw him he was busy talking over the telephone. I spoke to Kyser and turned my back to him. I heard Bell make the same remark I did, and I didn't see Kyser or Bell after that."
It is true that a highly nervous or excitable person might have left the room immediately upon hearing of the fire. But Kyser was not informed as to the nature and location of the fire. He evidently knew that McLaren had gone out to investigate, saw him return, and saw him loiter around getting up his books, etc., before leaving. Therefore, if McLaren, who had been out to investigate and who was Kyser's informant, remained in the room, this was a circumstance for the jury in determining whether or not Kyser knew or should have known that the danger was so imminent that he should have dropped the phone and immediately rushed out of the room. Again, it does not appear that Bell, the other person who warned Kyser, rushed out, but from aught that appears he remained in the room as long as or longer than Kyser, did, as McLaren left them both in there. They may have left together, or Kyser may have left first, and may have pursued a different course of escape, and the fact that the one taken by Bell led to safety while the one taken by Kyser led to eternity is by no means conclusive that Kyser tarried too long behind those who warned him and whose conduct was a circumstance which he probably had the right to consider. Moreover, it may be that Kyser was at the time being informed over the phone as to the fire, the nature and location of same, and may have been receiving directions as to the best way of escape. When informed of the fire, he showed no surprise or excitement, but gave a nod, indicating that he was aware of the fact, and it is possible that information was being imparted to him over the phone by some one on the outside who was instructing him as to his safety, etc. It was therefore a question for the jury to determine whether or not Kyser, the intestate, was guilty of contributory negligence.
For the error above designated, the judgment of the circuit court is reversed, and the cause is remanded.
Reversed and remanded.
MAYFIELD, SOMERVILLE, and THOMAS, JJ., concur.
1 201 Ala. 94.
2 201 Ala. 368.
3 200 Ala. 118.
On Rehearing.