Firemen's Ins. Co. v. Houle

• Decision Date: 06 December 1949
• Citation: 96 N.H. 30,13 A.L.R.2d 612,69 A.2d 696
• Parties: , 13 A.L.R.2d 612 FIREMEN'S INS. CO. et al. v. HOULE et al.
• Court: New Hampshire Supreme Court

Page 696

69 A.2d 696

96 N.H. 30, 13 A.L.R.2d 612

FIREMEN'S INS. CO. et al. v. HOULE et al.

Supreme Court of New Hampshire.

Dec. 6, 1949.

Frederick W. Branch, Manchester (by brief and orally), for the plaintiffs.

Chretien & Craig, Manchester (Alfred J. Chretien, Manchester, orally), for the defendants.

JOHNSTON, Chief Justice.

There was evidence to support the general findings of the Court that the north building was not physically a total loss and that it had not lost its identity as a building, and the following specific findings:

'With the exception of the south wall, the walls of the first and second floors can be advantageously and safely used in place in restoring the north building, or the whole building, to the condition in which it was prior to the fire.

'The floor timbers and partitions below the fourth floor were undamaged by fire, except for slight damage near the openings in the fire wall, and could be used in place in reconstructing the building, and would be so used by a reasonably prudent man, uninsured, desirous of restoring the north building or the whole building to the condition in which it was prior to the fire.'

However, the Court is in error in ruling that the Superintendent of Buildings does not have discretion to refrain from issuing a permit for the repair of the north building. Section 596 of the Code reads as follows: 'Superintendent Acts on Matters Not in Code. All matters and questions relating to buildings or building operations not covered or provided for in this code shall be decided by and left to the discretion of the Superintendent of buildings and his decision shall be as final and binding as if contained in this code.'

Under our decisions this section is not unconstitutional. 'The further position is taken that the act violates the Constitution in delegating primary legislative power. It is urged that 'there is no standard established but only a general objective described,' and that 'the whole subject' is transferred to the executive department of the state government. In Ferretti v. Jackson, 88 N.H. 296, 188 A. 474, a test was announced that there must be a declared policy and a prescribed standard laid down by the legislature. Beyond that regulatory and discretionary authority may be delegated to those assigned to administer the law. While the Legislature may exercise its own discretion if it sees fit and provide at its will for the details of administrative action, yet also it may vest the executive board directed to carry the law into effect with concurrent discretionary functions. So far as they are in any sense legislative, they are auxiliary to the predominant feature of administrative authority.' Conway v. Water Resources Board, 89 N.H. 346, 351-352, 199 A. 83, 88. See also, Meredith v. State Board of Health, 94 N.H. 123, 131-132, 48 A.2d 489.

The object of the Code is stated to be to provide for 'the safe use' of buildings in the city of Manchester. The Superintendent of Buildings is charged with the enforcement of the provisions of the Code, and he may examine buildings in relation to their proper ventilation, sanitation and safety and make such orders as to him seem proper to secure public and private safety. In 598 sections covering some 332 printed pages the Code specifies by what means this purpose of safety shall be attained. Finally, in section 596 the Superintendent of Buildings is given discretionary power to decide matters and questions relating to buildings and building operations not provided for in the Code. It would have been humanly impossible to have covered all contingencies by express language. The delegation of this discretionary power over such a residue of situations is proper.

It is true that the Superintendent was mistaken in his belief that the following provisions of the Building Code prevented him from issuing a permit for the repair of this building:

'Title XVI. Fireproof Construction. Sect. 307. When Required.

'Fireproof construction shall be required throughout in:

'(e) All buildings hereafter erected or altered to be used as hotels, apartment, tenement or lodging houses, dormitories, bachelor apartments, or similar occupancies, over three stories or 45 feet in height.' This section relates to the erection of new buildings and the planned alteration of existing buildings and not to the repair of damage caused by fire. This last mentioned subject is treated separately in section 95 of the Code, which deals with damage by fire caused to frame buildings. It is as follows:

'Frame Buildings Damaged. Every frame building now existing within the fire limits, which may hereafter be damaged to an amount not greater than fifty per cent of the cost of a similar new building, exclusive of the valuation of the foundation thereof, at the time of such damage may be repaired or rebuilt; but if such damage shall amount to more than fifty per cent as aforesaid then such building shall not be repaired or rebuilt but shall be torn down and removed.' The Rimmon Block was of ordinary construction defined in section 272. There is no requirement that a building of ordinary construction damaged by fire be repaired so that it shall consist of fireproof construction.

The case is accordingly remanded to the Superior Court to ascertain what the Superintendent decides in his discretion as to whether the defendants may repair the damage to the north building without using fireproof construction. There is no finding that the building was damaged to an amount not greater than fifty percent of the cost of a similar new building, exclusive of the valuation of the foundation thereof. If the damage was so limited, then the Superintendent would be compelled to permit repairs since it would be arbitrary of him to demand more than the Code requires in the case of frame buildings. See...