This is “an action in contract or tort” brought by the owner and lessor of a building against the lessee to recover damages arising from a fire in the demised premises during the term. The lease contained provisions authorizing the defendant as lessee to install motors and necessary wires for carrying the electric current for use in the building, the same to be and remain the property of the lessee. The defendant covenanted “not to make or suffer any waste of said premises.”
The plaintiff offered in evidence an ordinance of the city of Lowell providing for an inspector of wires and purporting to regulate the inspection of wires used for electricity and other purposes. The offer was excluded. The vital parts of that ordinance are §§ 9, 10, 11 and 14. They are printed on page 542,,ante. It was provided by St. 1890, c. 404, § 3, in force on July 26, 1899, when the ordinance in question was approved by the mayor (see R.L. c. 122, § 18, G. L. c. 166, § § 32 and 27), that “ Every city shall, by ordinance, designate or provide for the appointment of an officer who shall supervise . . . every wire within a building when such wire is designed to carry an electric light or power current; shall notify the person or corporation owning or operating any such wire whenever its attachments, insulation, supports or appliances are unsuitable or unsafe. ...”
This statute does not authorize the enactment of an ordinance of the tenor of the three sections here assailed. By their terms no owner can connect a current of electricity with any system of wiring for light or power without a written permit from the inspector of wires. That officer is in effect forbidden to issue such a permit unless “the established rules and regulations of the National Board of Fire Underwriters” shall have been complied with. There is nothing in that statute nor in Pub. St. c. 27, § 15 (see R. L. c. 25, §§ 23,24; G. L. c. 40, §§ 21-33), which empowers a city council to adopt by mere reference the rules and regulations of another and foreign body as the basis for determining the suitableness or safety of the insulation, attachments, supports or appliances for wiring designed to carry electric currents. Commonwealth v. Staples, 191 Mass. 384. Brown v. Newburyport, 209 Mass. 259, 266. The case at bar upon this point is within the authority of well established principles which have been elaborated in comparatively recent decisions and need not be repeated. *544Commonwealth v. Maletsky, 203 Mass. 241. Kilgour v. Grotto, 224 Mass. 78.
An ordinance which goes beyond the authority conferred by the enabling statute is invalid. Commonwealth v. Hayden, 211 Mass. 296. Goldstein v. Conner, 212 Mass. 57.
It was assumed without discussion as a partial basis for decision in Brunelle v. Lowell Electric Light Corp. 194 Mass. 407, that the ordinance here attacked was valid. No question there was raised in argument or otherwise as to the validity of the ordinance. The point was passed over in silence. Under such circumstances the decision does not stand as authority for any proposition not considered. No question having been made in that case as to the point here presented for decision, the court is not bound by what there was said concerning the binding nature of the ordinance. United States v. More, 3 Cranch, 159, 172. Louisville Trust Co. v. Knott, 191 U. S. 225, and cases there collected. Swan v. Justice of the Superior Court, 222 Mass. 542, 545. Gibson v. Soper, 6 Gray, 279, 284. See McGlue v. County Commissioners, 225 Mass. 59, 60.
Whatever might be said as to the validity of §§ 9 and 10 of the ordinance if they stood alone, it is plain that they are inextricably connected with § 11 and hence they all fall.
There was no error in excluding the ordinance and the offers of proof connected therewith.
It follows from what has been said concerning the vital sections of the ordinance that the several offers of proof as to the want of permit by inspector of wires, the failure of the wiring within the building to conform to the ordinance and the reason of the inspector for refusing to grant the permit, all were rightly excluded.
The plaintiff’s declaration set out the tenancy for a term of years and alleged injury to him caused by the negligence of the defendant, its servants and agents. One of the specifications of negligence was of the tenor following: “The omission of the defendant to arrange the fixtures connected with the electric wiring on the premises to comply with the aforesaid ordinance and code, in that the switches in use were not of the oil type and were not enclosed in cabinets and were operated by the defendant, its employees, agents or servants in a careless, negligent and reckless manner.” This sentence is not phrased with accuracy *545•and its construction is clumsy. At first sight it would seem that “The omission of the defendant ... to comply with the aforesaid ordinance and code” was the whole fault charged and that all which follow the words “in that” were detailed statements of the particulars of the several omissions. It is manifest, however, that the concluding phrase, which charges careless, negligent and reckless operation of the apparatus, is not a particular in which the “ordinance and code” has not been complied with. The ordinance contains no provision respecting the operation of the wires and connections. No copy has been furnished us of the code of the National Board of Fire Underwriters existing when the ordinance became operative. It cannot be presumed that a “code” would contain a provision merely prohibiting careless, negligent and recldess operation of electrical apparatus. The natural purpose of such a code is to provide for a safe and proper installation of apparatus. These words of the specification state a common law obligation. They are not apt to express the normal purpose of a code. With some hesitation we interpret this concluding phrase of the specification as setting forth a breach of the common law duty.
The defendant had covenanted with the plaintiff in its lease not to make or suffer any waste of the demised premises. Therefore it would be liable to the plaintiff for injury caused to it by fire in the premises caused by its negligence. Such injury would be permissive waste for which as tenant for years the defendant would be responsible. Lothrop v. Thayer, 138 Mass. 466.
It follows that it was error to exclude evidence offered to show that the fire in the demised premises was caused by the negligence of the defendant.
The entry in writing made by the chief of the fire department as to the cause of the fire was rightly excluded. Allen v. Kidd, 197 Mass. 256, 259. Jewett v. Boston Elevated Railway, 219 Mass. 528.
Exceptions sustained.