Personal Liability for Fires
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“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.
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*Excerpts from a paper read before the Annual Convention of the National Firemen’s Association.
Personal Liability for Fires
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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.