The applicant was arrested and restrained all his liberty under a charge that he violated an ordinance of the city of Wichita Falls. The ordinance reads as follows: "That it shall be unlawful for any person or persons to erect any building or structure of any kind within the fire limits of this city of any other material than brick or stone for the walls, and metal, gravel or slate for the roof of such building or structure, except as herein provided." The ordinance prescribes a punishment. It will be noticed that the ordinance prohibits building within the fire limits of the city of Wichita Falls every kind and character of building except one constructed of "brick or stone." Contention is made that this ordinance is too restrictive, that it is unreasonable and invalid, and that it is discriminating in nature and character. The authority for this ordinance is found in the Revised Civil Statutes, article 523, which reads as follows: "The city council, for the purpose of guarding against the calamities of fire, may prohibit the erection, building, placing, moving or repairing of wooden buildings within such limits within said city as they may designate and prescribe; and may within said limits prohibit the moving or putting up of any wooden building from without said limits, and may also prohibit the removal of any wooden building from one place to another within said limits, and may direct, require and prescribe that all buildings *Page 534 within the limits so designated and prescribed as aforesaid shall be made or constructed of fire-proof materials, and to prohibit the rebuilding or repairing of wooden buildings within the fire limits, when same shall have been damaged to the extent of fifty percent of the value thereof, and may prescribe the manner of ascertaining such damage; may declare all the dilapidated buildings to be nuisances, and direct the same to be repaired, removed or abated in such manner as they shall prescribe and direct; to declare all wooden buildings in the fire limits, which they deem dangerous to contiguous buildings, or in causing or promoting fires, to be nuisances, and require and cause the same to be removed in such manner as they shall prescribe." The clause of the general incorporation act last above cited authorizes city councils to pass an ordinance preventing the construction of any character of building save and except buildings of fire-proof materials. The ordinance of the city of Wichita Falls prohibits the building of anything save and except a brick or stone building within the fire limits. The insistence is made that this ordinance is more restrictive than the statute authorizing same. There is no question but what the general incorporation act is a limitation upon the powers of cities incorporated under said act, but the question for us to decide is, is the ordinance in question more restrictive than the statute which authorizes same? We hold not. The ordinance authorizes the construction alone of buildings of brick and stone. Insistence is made that iron and concrete are also noncombustible materials, and fire-proof, and that, therefore, under this ordinance, one could not construct a building of iron or of concrete. We think this position hypercritical. Concrete is a species of brick made by artificial means, just like brick are made, or else is an artificial stone. There is nothing in the ordinance that inhibits the building of a concrete building, since it could not be justly said a concrete building was not a stone building, in the sense that it is equally as noncombustible and as fire-proof. No one ever heard of an iron house. Frequently the structural portions of a building are made of iron, but are uniformly filled in between the structure or frame work, so to speak, with brick or stone. So we do not believe the ordinance violates the provisions of the general incorporation act. So we hold that the ordinance is not broader than the statute, and was not intended to be broader than the statute. It is unnecessary to cite authorities on this question, but suffice it to say, as above suggested, that where a charter complies in spirit with the provisions of the general incorporation act, any such ordinance of a city is constitutional.
Accordingly relator is remanded.
Relator remanded.