delivered the opinion of the court.
This was a suit to recover a fine for the violation of a city ordinance, commenced before a justice, where a fine was imposed. Upon appeal to the Circuit Court an objection to the introduction of the ordinance in evidence was maintained, and the jury instructed to find for appellee. The question involved in the appeal is the validity of the ordinance.
The complaint charges appellee with “violation of Sections 1 to 6 of Ordinance 17 of the city of Marion, * * by erecting a part of a building in said city within less than. 170 feet of the public square; * * * the outer walls thereof are neither brick nor stone.”
The only evidence offered was Ordinance No. 17, Sections 1 to 6, inclusive, and Section 1 of Ordinance No. 40, which is an amendment of Section 2 of Ordinance No. 17.
It does not appear from the complaint nor from the evidence what material .appellee used in erecting “ a part of a building.” The sole charge is that “ the outer walls are neither brick nor stone.” This being a suit to recover a penalty, a clear violation of a valid ordinance must be proven.
The sixty-first and sixty-second clauses of Section 82, Chapter 24, of the Revised Statutes (Hurd’s edition), entitled “ Cities, Villages and Towns,” conferring powers on municipal corporations, reads as follows:
“ Sixty-first.—To prescribe the thickness, strength and manner of constructing stone, brick and other buildings, and construction of fire escapes therein.
“ Sixty-second.—The city council and the president and trustees in villages, for the purpose of guarding against the calamities of fire, shall have power to prescribe the limits within which wooden buildings shall not be erected or placed or repaired, without permission, and to direct that all and any new buildings within the fire limits, when the same shall have been damaged by fire, decay or otherwise, to the extent of fifty per cent of the value, shall be torn down or removed, and to prescribe the manner of ascertaining such damage.”
The sections of Ordinance No. 17, as amended by Ordinance No. 40, offered, material to be considered, is as follows:
“ No building or structure of any kind or description shall be erected or constructed on any lot or block, or any fraction of any lot or block, fronting or joining the public square, or within 170 feet of the public square, nor shall there be erected or constructed any building or structure of any kind on any street or alley within 170 feet of the public square, unless such hidlding or structure, or the outside walls thereof, shall he composed of stone or brick, and all buildings which may hereafter be erected within the limits above mentioned shall have outside walls of not less than twelve inches in thickness, and if any building shall be more than one story in height above the basement, the wall above the second story, except front and rear walls, shall extend at least twelve inches above the roof.”
It is conceded by appellant that the portion of section 2 which prohibits the erection of any building, “ unless such building or structure or the outside walls thereof shall be composed of brick or stone,” is broader than is authorized by sections 61 and 62 of chapter 24, cited swpra. This being so, that portion of the ordinance is ultra vires and invalid. But appellant insists that other sections of the ordinance are authorized and valid and that appellee might be convicted for their violation. This might be true if the complaint charged him with the violation of these sections. But it does not. It charges appellee with erecting a portion of a building whose “ outer walls are neither brick nor stone.” In other words, the complaint charges appellee with violating a section of an ordinance that the city council had no authority to pass. Judgment affirmed.