Personal Liability for Fires

Personal Liability for Fires

(Continued from page 1409)

“The extent and limits of what is known as the police power have been a fruitful subject of discussion in the appellate courts of nearly every State in the Union. It is universally conceded to include everything essential to the public safety, health and morals, and to justify the destruction or abatement, by summary proceedings, of whatever may be regarded as a public nuisance. Under this power it has been held that the State may order the destruction of a house falling to decay or otherwise endangering the lives of passers-by; the demolition of such as are in the path of conflagration; the slaughter of diseased cattle; the destruction of decayed or unwholesome food; the prohibition of wooden buildings in cities; the regulation of railways and other means of public conveyance, and of interments in burial grounds; the restriction of objectionable trades to certain localities; the compulsory vaccination of children; the confinement of the insane or those afflicted with contagious diseases; the suppression of obscene publications; and the prohibition of gambling houses and places where intoxicating liquors are sold.

“Beyond this, however, the State may interfere wherever the public interests demand it, and in this particular a large direction is necessarily vested in the legislature to determine, not only what the interests of the public require, but what measures are necessary for the protection of such interests.” From the opinion—Lawton vs. Steele—152 U. S. p. 136.

If there is any such power in the judiciary to review legislative action in respect of a matter affecting the general welfare, it can only be when that which the legislature has done comes within the rule that if a statute purporting to have been enacted to protect the public health, the public morals or the public safety, has no real or substantial relation to those objects, or is, beyond all question, a plain, palpable invasion of rights secured by the fundamental laws, it is the duty of the courts to so adjudge, and thereby give effect to the Constitution.”

“The legislature may authorize the destruction of unhealthy houses as nuisances.” Syllabus—Theilan vs. Porter—14 Lea. 623.

In this case the legislature of the State of Tennessee had authorized a city government, and made it their duty, to condemn as nuisances all buildings, cisterns, wells, and other erections in the taxing district, which on inspection might be found to be unhealthy and cause the same to be abated, unless the owners themselves, on notice, should reconstruct in a manner prescribed by the laws of the taxing district.

The authorities of the city of Memphis destroyed a dwelling-house under the authority of the law just quoted and were sued for damages by the owner.

“It is argued that the acts in question are in violation of that clause in our State Constitution which declares that no man’s property shall be taken or applied to public use without the consent of his representatives, or without just compensation being paid therefor.”

“But this inhibition has no application as a limitation of the exercise of those police powers which are necessary to the safety and tranquillity of every well-born community, nor of that general power over private property which is necessary for the orderly existence of all governments. Sedg. Const. Law, 434-35, and in a note on pages 435-36, says, ‘In very many instances sutnmary proceedings without the usual forms of regular judicial trial, have been held valid as falling within the police powers of the State.’ Because the necessities of society and good government demand a certain amount of summary and progressive measures which would be ineffectual if delayed by ordinary machinery or more regular judicial trial, and numerous examples and cases are given in which summary proceedings were held valid, and it is added, abating a nuisance does not take away property without due process of law, for the common law recognized the power to abate a nuisance in a summary manner.”

“The Fourteenth Amendment does not undertake to control the power of a State to determine by what process legal rights may be asserted, or legal obligations be enforced, provided the method of procedure adopted gives reasonable notice and fair opportunity to be heard before the issues are decided.” Brannon on the Fourteenth Amendment, p. 147.

Due Process Not Necessarily Judicial

“Due process is not necessarily judicial. Administrative process, regarded as necessary in government, sanctioned by long usage, is as much due process as any other.” Supra p. 147.

“A proceeding in equity to abate a nuisance without a jury trial is due process, as chancery always exercised this jurisdiction. A municipal corporation may summarily without suit or warrant, remove a public nuisance by force, without jury, trial or legal proceeding other than the order of its council, because it was a power wielded at common law by an individual, even to remove a public nuisance—it was due procedure before the Fourteenth Amendment. If actually necessary the thing creating the nuisance may be destroyed or enjoined.” Brannon on Fourteenth Amendment, 147-148.

“For the purpose of removing a nuisance, the State may go to any length, even so far as to destroy houses and other buildings, where they are in fact nuisances. If a house is falling into decay, or endangering the public safety, or it is irretrievably unhealthy, or is per se, for any other reason, a nuisance, it may certainly be destroyed, and it is not unusual to find municipal regulations of this character.” Tiedman’s Limitations of Police Powers, Sec. 122 citing Thidan vs. Porter—14 Lea. 622.

In Penna. Railroad Co., vs. Kelly, 77 N. J., Eq. p. 129, the court in the syllabus declares that “A building which, because of its inherent weakness or dilapidated condition, is liable to fall into a highway and injure persons rightfully there, is a public nuisance.” And further, “Such building is also a private nuisance where it is liable to fall and injure adjacent property.”

And the Court held in this case that it could order the immediate removal of the building without the intervention of a jury.

On the question of compensation for property destroyed by the public authorities, as a public nuisance, the Supreme Court of Georgia, in Dunbar vs. Council, 90 Ga. p. 295, says:

“To destroy property because it is a dangerous nuisance is not to appropriate it to a public use, but to prevent any use of it by the owner and put an end to its existence because it could not be used consistently with the maxim Sic utere tuo, ut alienum non lacedes. In abating nuisance the public does not exercise the power of eminent domain but the police power.”

It would seem from the authorities quoted that it would be reasonable to assume that Section 9 of the Fire Marshal law does not deprive a citizen of his property without due process of law, but, instead, he is given greater opportunity to defend his rights than required by the Constitution. It would also be reasonable to assume that a certain property which, by reason of its condition and liability to fire endangers surrounding property should be removed, and that the State may summarily remove such building or buildings without a trial and without compensation.

(Continued on page 1471)

*Excerpts from a paper read before the Annual Convention of the National Firemen’s Association.

Personal Liability for Fires

(Continued from page 1451)

Proper Exercise of Police Power

I believe you will agree with me, therefore, that the duty and authority vested in the State Fire Marshal by virtue of Section 9, is a valid and proper exercise of the police power of the State.

I hope you will pardon the tediousness of this paper, but as this question is one of the most serious with which we have to deal in enforcing the Fire Marshal law of Illinois, I trust the information may prove useful to you when you are confronted with matters of this kind, or called upon to defend your action under the law.

This, of course, has been a tedious subject to you, but I have tried to give you the court decisions throughout the United States, as many as I could find, in order that it might apply in your own State. I realize, gentlemen, we are from different States and this does not affect Illinois alone. I hope I have made myself clear. If you have any questions to ask, I would be glad to answer them.

The Valley Mold and Iron Corporation of Sharon, Pa., has recently organized a fire department equipped with one 80gallon and two 40-gallon chemical engines and other apparatus. A siren whistle has been provided and fire stations installed at the plant.




The Proper Placing of Responsibility for Fires Caused by Negligence—The Laws on the Subject, and their Interpretation—Compulsory Removal of Dilapidated Buildings That Form a Menace

JOHN G GAMBER State Fire Marshal of Illinois

THE subject assigned to me, viz: “Personal Liability for Negligent Fires and the Removal of Dilapidated Buildings” is necessarily a question of law, and for that reason would not be of much interest to the average person, but to us who are more or less in contact with such matters as viewed from the fire hazard viewpoint, they are vital questions, and I believe when you have heard the matter explained from a legal point of view, you will agree with me that it really would not be necessary to have any additional legislation, and that the rule of the common law applies.

Since there are two divisions of the topic assigned to me, this paper will, therefore, be divided and discussed under two general sub-divisions. First, Personal liability for negligent fires. Has the owner of adjoining property, which is damaged by fire communicated to it from another building, and which was caused by the negligence, carelessness and non-compliance of the owner thereof with existing laws and ordinances, a right of action at common law in the State of Illinois?

The above question propounded to the average citizen might seem revolutionary and out of reason, but I believe that such action would lie.

Some Recent Decisions

A decision of the Appellate Court of New York decreed that the Greenwood Cemetery Company should pay $1,500 to cover the cost of putting out a fire on its premises which was caused by its failure to install automatic sprinklers as ordered by the Inspectors.

The Supreme Court of New York has held that where a motion picture film company stored films in a building without a permit, as required by the city ordinances, it was liable to pay the fire department the full cost of extinguishing the fire.

Apart from the question of statutory liability, it was contended in the above cases that the defendant was liable for the damages caused by its negligence.

The negligence was pleaded as a matter of fact, and it was held that the defendant’s failure to comply with the lawful requirements was negligence as a matter of law. Its negligent act caused the fire and resulted in the damage for which damage was sought.

If all such matters are proper for legislation and the collection of damages, why not treat individuals likewise for their wilful negligence in setting or allowing fires to occur?

Discussed at Fire Marshals’ Convention

At the Fire Marshals’ Convention in November, 1916, this matter was discussed at some length. Since that time, Pennsylvania and some other States have either enacted such statutes or recognized it as a part of their common law. And why not have the same sort of a statute in Illinois, or at least, recognize this doctrine as a part of our common law?

The doctrine of personal liability for neglect is older than the common law of England, as it was a part of the Mosaic law, laid down by Moses in the early Biblical days, as he said in the 8th verse of the 22d Chapter, Exodus: “If fire breaks out and catch in thorns, so that the stacks of corn or the standing corn, or the field be consumed therewith, he that kindleth the fire shall surely make restitution.”

If such a law was good in the time of Moses, it seems it should hold good now, and I can see no reason why Illinois should not have such a rule of conduct, for I believe that if the citizens of Illinois could be compelled to answer financially for their negligence as to setting fires or allowing conditions to exist which cause fires, it would be a far cry in advance in the way of fire prevention, and in my opinion, such fires would be reduced to the minimum.

I might give you a number of Illinois Supreme Court cases where damages awarded by the lower courts have been sustained, where it was negligent and did not provide the safeguards as required by law.

The Second Question

Second: Liability for Removal of Dilapidated Buildings. Can the Director of the Department of Trade and

Commerce, through the Fire Marshal, order the removal of any building or other structure which, for want of proper repair, or by reason of age and dilapidated condition, or for any cause is especially liable to fire, and which is so situated as to endanger other buildings, or property, or so occupied that fire would endanger persons or property therein?

The constitutionality of the above portion of the statute has not been passed upon by the Supreme Court of this State. In the case of Louisville vs. Webster, 108 Ill. 414, the Supreme Court refused to express an opinion as to whether, under the constitution, a city can take private property except upon making compensation therefor. This case resulted from a building being torn down, as provided for in an ordinance framed in accordance with the Cities and Villages Act. In dealing with such cases the argument usually presented is that you cannot deprive any person of his property without compensation and due process of law.

The trouble with the persons advancing such argument is that they fail to distinguish between the exercise of the right of eminent domain and the exercise of police powers by the State.

Excerpts from a paper read before the Annual Convention of the National Firemen’s Association.

Power and Authority of Fire Marshal

All the power and authority is vested in the officer enforcing the Fire Marshal law in an exercise of police power, and if he should remove a building which is found dangerous and especially liable to fire, he is not appropriating it to the use of the State but merely is removing it in the interest of public safety. This is police power and not eminent domain. The fact that some individual might suffer some financial loss by reason of such a power authorized by law should not render the same unconstitutional. In the case of L’Hote vs. New Orleans, 177 U. S. 587, Justice Brewer used the following language: “The truth is that the exercise of the police power often works pecuniary injury, but the settled rule of this court is that the mere fact of pecuniary injury does not warrant the overthrow of legislation of a police character.”

You will notice that before the Fire Marshal can take action against a given structure that such building or structure must be so situated as to endanger other buildings or property. In the case of an isolated building, in my judgment the officer would not have such jurisdiction. You will also notice that the law requires that notice be served before any section is taken by the officer, and gives the right of appeal to the Fire Marshal, and from him to the Courts of the county. This provides the due process of law, which is really more than a citizen has a right to claim as against the exercise of police power.

Authorities Quoted

In the support of the statements just made I am quoting the following authorities:

“That a State, in the bona fide exercise of its police powers, may interfere with private property, and even order its destruction, is as well settled as any legislative power can be which has for its object the welfare and comfort of the citizens.” 5 Enc. of U. S. Sup. Ct. Rep. p. 5JL4.

Nor is it necessary that compensation be provided where property is taken with the sole object of promoting the public safety.

“Uncompensated obedience to a regulation enacted for the public safety under the police power of the State is not taking property without due compensation, and the constitutional prohibition against the taking of private property without compensation is not intended as a limitation of the exercise of those police powers which are necessary to the tranquillity of every well-born community, nor of that general power over private property which is necessary for the orderly existence of all governments.” From syllabus in C. B. & Q. Ry. vs. Drainage Commissioners, 200 U. S. p. 562.

The only case in which a citizen is entitled to compensation for property taken under the legitimate exercise of the police power of the State, is where it is taken for “public use.”

The right to destroy buildings to prevent the spread of conflagration, and that without liability to the owner, existed at common law.

“At the common law every one had the right to destroy real and personal property, in cases of actual necessity, to prevent the spreading of fire, and there was no responsibility on the part of such destroyer, and no remedy for the owner.” From the opinion in Bowditch vs. Boston, 101, U. S. p. 18.

If this could be done by any person, to prevent the spread of fire, without notice and without compensation, surely the State has power to provide by statute for the removal of a building in order to prevent a fire from starting, especially where due notice and semi-judicial hearings are provided to protect the owner’s rights.

The power granted by the statute in question is a legitimate exercise of the police power of the State.

(To be continued)