City of Cincinnati v. Steinkamp

• Decision Date: 17 March 1896
• Citation: 54 Ohio St. 284,43 N.E. 490
• Parties: CITY OF CINCINNATI v. STEINKAMP.
• Court: Ohio Supreme Court

43 N.E. 490

54 Ohio St. 284

CITY OF CINCINNATI v. STEINKAMP.

Supreme Court of Ohio.

March 17, 1896

Error to circuit court, Hamilton county.

Action by the city of Cincinnati against Caroline Steinkamp trustee. Plaintiff's action was commenced for the purpose of compelling the erection by defendant of fire escapes upon certain buildings owned by defendant as trustee. Issue being joined, on trial the court found the equities with the plaintiff, and ordered and adjudged that defendant be perpetually enjoined from using the buildings without fire escapes being placed thereon, and adjudged costs against defendant. On appeal, the circuit court found for the defendant, dismissed the petition, and adjudged costs against the city. Plaintiff brings error. Affirmed.

Minshall J., dissenting.

Syllabus by the Court

Sections 32 and 61 of the act of February 28, 1888, entitled ‘ An act to regulate the construction of buildings within any city of the first class and first grade,’ etc. (85 Ohio Laws, 34), which require, among other things, that all buildings (save private residences) of three or more stories in height shall be provided with suitable fire escapes, and require the owner or occupant, upon 30 days' notice by the fire inspector, to put up such escapes, and provide punishment by fine for noncompliance with such order, and empower a court of equity, on application of the inspector, by suit in the name of the city, to enforce the provisions of the act and enjoin the use or occupation of any building used in violation of the act, are not invalid as depriving the owner of the use of property without the intervention of a jury, nor as depriving him of due process of law. But said sections are in conflict with section 26, art. 2, of the constitution, which prescribes that ‘ all laws of a general nature shall have a uniform operation throughout the state,’ and are therefore invalid, inasmuch as the act is one of a general nature, and has operation only in the city of Cincinnati.

Frederick Hertenstein and W. H. Whittaker, for plaintiff in error.

Von Seggern, Phares & Dewald, for defendant in error.

SPEAR, J.

The action is based upon provisions contained in the act of February 28, 1888 (85 Ohio Laws, 34), entitled ‘ An act to regulate the construction of buildings within any city of the first class and first grade, and to provide for the appointment of an inspector of buildings.’ By section 32 of the act it is provided that all buildings, except such as are used for private residences exclusively, in a city of the first grade of the first class, of three or more stories in height, shall be provided with one or more suitable fire escapes, extending from the first story to the upper stories of such building, and above the roof, and on the outer walls thereof, in such location and numbers, and of such material and construction, as the inspector (provided for in the statute) may determine. It is further provided that after such determination by the inspector, he may notify the owner lessee, or occupant of such building, requiring him to cause such fire escape to be constructed within 30 days after the service of the notice, and, if the person so notified fails to, comply therewith, he shall be subject to a fine of not less than $10 or more than $100, and to the further fine of $50 for each week that he fails to comply with the same. By section 61 of the act it is provided that ‘ any court having equity jurisdiction in term time, or in vacation, may, on the application of the inspector, by any suitable process or decree in equity suit, brought in the name of said city, enforce the provisions of this act; and may, on such application, issue an injunction to restrain the use or occupation of any building or structure in said city, erected, altered, maintained, or used in violation of this act.’ No question of fact material to the case is in dispute. The contention is as to the constitutionality of the sections of the act referred to.

1. It is urged that the sections cited undertake to confer upon a court of equity, without the intervention of a jury, the power to take away from the owner, by an order of injunction the right to the use and enjoyment of real estate, and thereby deprive the party of his constitutional right of trial by jury, and of his remedy by due course of law. The proposition cannot be maintained. It is not the purpose or effect of the act to take property, nor to deprive the owner of the lawful use of property, but simply to require him to use it in a lawful manner. The owner is not prevented from selling it, mortgaging it, devising it, or giving it away; nor does the act impose any lien on property. The statute simply operates upon it as it does upon all other like property coming within its terms. Our constitution, and the practice of the courts, have always recognized the fact that in many cases no right of trial by jury exists. If the civil authorities were obliged to await the slow progress of a jury trial in such matters, the evil sought to be remedied would seldom be avoided. The power to be exercised by the inspector is administrative, rather than judicial, in its character. A jury has not been the ordinary tribunal to determine the exercise of such power. Hence no right of trial by jury is violated in the present case. Inwood v. State, 42 Ohio St. 186; Board v. Heitser, 37 N.Y. 661. The enactment is but the exercise of the police power of the state,-that power which is characterized by Mr. Justice Gray, in Leisy v. Hardin, 135 U.S. 127, 10 Sup.Ct. 681, as ‘ that inherent and necessary power, essential to the very existence of civil society, and the safeguard of the inhabitants of the state against disorder, disease, poverty, and crime,’ and necessarily extends ‘ to the protection, health, comfort, and quiet of all persons and all property within the state.’ It no more denies to the owner the use of his property than do those acts known as ‘ building laws,’ which forbid the erection of frame structures within prescribed limits, or define the thickness and strength of walls, bearers, girders, etc., or direct the demolition of structures falling to decay or otherwise endangering the lives of passers-by, which acts, so far as they are reasonable in their character, and adapted to accomplish the purpose for which they are designed, are uniformly held to be within the constitutional authority of the general assembly, in its just exercise of the police power of the state. Ex parte White, 67 Cal. 102, 7 P. 186; City of St. Paul v. Dow, 37 Minn. 20, 32 N.W. 860; Hennessy v. City of St. Paul, 37 F. 565; State v. City of Paterson, 45 N. J. Law, 310; People v. D'Oench, 111 N.Y. 359, 18 N.E. 862; City of Philadelphia v. Coulston, 13 Phila. 182; Fire Dept. v. Wendell, 13 Daly, 427; Park. & W. Pub. Health, §§ 326, 341; Fire Dept. v. Chapman, 10 Daly, 377; Grant v. Power Co., 14 R.I. 380; Lawton v. Steele, 152 U.S. 133, 14 Sup.Ct. 499. Nor is the act open to the criticism that it violates that provision of section 1 of article 14 of the amendments to the constitution of the United States which declares, ‘ * * * nor shall any state deprive any person of life, liberty, or property without due process of law’ ; for the settled doctrine is that this section does not abridge the exercise of the police power of the states, nor limit the subjects upon which they may legislate. State v. Moore, 104 N.C. 714, 10 S.E. 143; Woodruff v. Railroad Co., 59 Conn. 63, 20 A. 17; In re Rahrer, 140 U.S. 545, 11 Sup.Ct. 865; Park. & W. Pub. Health, § 15, and authorities cited; Lawton v. Steele, supra. But, were it otherwise, still the criticism could not avail; for it is due process of law if it be ‘ law in its regular course of administration through courts of justice; law which proceeds upon due notice and inquiry, which hears before it condemns, and renders judgment only after trial.’ All these requirements are amply provided for in the sections of the act which have been recited. It will be noticed, also, that the action at bar is not for the recovery of a fine, or the enforcement of any penal sanction, but that its object is simply to prevent the use of the building complained of until the owner shall comply with the requirement as to fire-escapes. The action does not seek to punish for past violations of the law. Its purpose is only to stay the arm of the wrongdoer. Hence no question is here raised as to the much -debated doctrine that the general assembly has no power to authorize enforcement of a criminal law by a civil action, and that a court of equity cannot hold cognizance of any criminal matter. A building of the character described, not provided with suitable exits, is, speaking in a...