In re Condemnation State Fire Marshal of a Building

• Citation: 171 N.W. 773,142 Minn. 219
• Decision Date: 11 April 1919
• Docket Number: 21,162
• Parties: IN RE CONDEMNATION BY THE STATE FIRE MARSHAL OF A BUILDING, ETC.; v. R. W. HARGADINE JOHN J. YORK
• Court: Supreme Court of Minnesota (US)

171 N.W. 773

142 Minn. 219

IN RE CONDEMNATION BY THE STATE FIRE MARSHAL OF A BUILDING, ETC.;

JOHN J. YORK v. R. W. HARGADINE

No. 21,162

Supreme Court of Minnesota

April 11, 1919

In proceedings in the district court for Hennepin county for the condemnation of a certain building by the state fire marshal John J. York, as administrator of the estate of William Anheier, deceased, in his answer, among other matters alleged that chapter 36, G.S. 1913, as amended by Laws 1917, p. 803 c. 469, is unconstitutional because it authorizes and directs the taking of property of defendant without due process of law, and for the further reason that said law authorizes and directs the destruction of private property without just compensation therefor first paid or secured, all in violation of the provisions of the state Constitution. The matter was heard by Leary, J., who made findings, affirmed the order of the fire marshal and ordered him to proceed forthwith to procure compliance with the order. From the order denying his motion for a new trial, John J. York appealed. Affirmed.

SYLLABUS

Fire -- condemnation of building -- statute valid.

1. Chapter 469, Laws 1917 (amending sections 5140-5146, G.S. 1913), authorizing the state fire marshal to condemn and order torn down a building which, by reason of age, dilapidated condition or other defect, is especially liable to fire, and is so situated as to endanger life and limb or other buildings or property in the vicinity, is a valid exercise of the police power of the state. A structure coming within the purview of the statute may be regarded as a nuisance and abated as such.

Fire -- evidence.

2. The evidence sustains the finding that the building condemned is especially liable to fire and dangerous to life and surrounding structures.

Fire -- nuisance.

3. A building in the condition established by the finding is in fact a nuisance, even if that term is not used either in the findings or the statute mentioned.

George M. Bleecker, for appellant.

Clifford L. Hilton, Attorney General, James E. Markham, Assistant Attorney General, and Elias Rachie, Special Assistant Attorney General, for respondent.

OPINION

HOLT, J.

In virtue of the authority given by chapter 469, p. 803, Laws of 1917 (amending sections 5140-5146, G.S. 1913), the state fire marshal condemned and ordered demolished a wooden building located within the fire limits of the city of Minneapolis and belonging to the estate of William Anheier. Upon a hearing in the district court the order was found reasonable. The administrator of the estate appeals.

The section here assailed as unconstitutional reads: "The state fire marshal may condemn and by order direct the destruction, repair or alteration of any building or structure which by reason of age, dilapidated condition, defective chimneys, defective electric wiring, gas connections, heating apparatus or other defect, is especially liable to fire and which building or structure in the judgment of said state fire marshal, is so situated as to endanger life or limb or other buildings or property in the vicinity."

The right to condemn and direct the destruction of property granted by this statute must be sought in the police power possessed by the state. It is contended the power does not extend to a destruction of property without compensation to the owner, unless the property constitutes a nuisance, except perhaps in cases of extreme emergencies. The proposition is not tenable. Regulating or compelling the repair or alteration of buildings that have become a nuisance to persons or surrounding property, is conceded by appellant to be a proper exercise of the police power of the state. Whether as a result of the compulsory repair or alteration, or the manner in which it is required to be done, the owner suffers a pecuniary loss, thus depriving him of his property, is of no vital consequence. In principle there would seem to be no room for making a distinction between the right under the police power to compel the alteration of a building, and the right to compel its reduction into lumber, so far as in either case it may result in a loss to the owner.

Appellant also concedes that the police power of the state is properly directed against the abatement of a nuisance, and that no valid objection to legislation enacted for that purpose can be made on the ground that the owner of the nuisance is deprived of property by the abatement. Our statutes define certain conditions and acts to be private or public...