Rowland v. State Ex Rel. Martin
| Decision Date | 23 October 1937 |
| Citation | 129 Fla. 662,176 So. 545 |
| Parties | ROWLAND, Chief of Police v. STATE ex rel. MARTIN. |
| Court | Florida Supreme Court |
Error to Circuit Court, Dade County; Paul D. Barns, Judge.
Habeas corpus proceeding by the State, on the relation of Ralph Martin, against John B. Rowland, Chief of Police of the City of Miami, and his successors in office. Judgment discharging the relator, and defendant in error.
Affirmed.
J. W. Watson, Jr., of Miami, for plaintiff in error.
Meyer Davis & Weiss, of Miami, for defendant in error.
Writ of error brings for review judgment in habeas corpus proceedings under which the petitioner was discharged.
Petitioner was charged with violating the provisions of section 301 of chapter 3 of the Building Code of the City of Miami. The affidavit against him was in three counts. Count 1 charged that he violated section 301, chapter 3, of the Building Code of the City of Miami, known as Ordinance No. 1554, by unlawfully continuing to occupy the condemned building structure, or part thereof, located at No. 132 N.E. Second avenue, Miami, Florida, after said building had been condemned.
The second count charges that he violated the same ordinance by failing to vacate the said building, structure, or part thereof, in accordance with the time given in the notice by the building inspector to vacate said condemned premises.
The third count charges a violation of the ordinance by unlawfully resisting the building inspector in making safe the condemned building, structure, or part thereof.
The ordinance is lengthy, and no useful purpose can be served by setting out its terms here. It is sufficient to say that the ordinance purports to authorize the building inspector to examine property and to determine himself whether or not it is safe or unsafe, and thereupon, if he sees proper to do so, to condemn the building and to enforce his orders of condemnation. There is no provision in the ordinance whereby the owner or occupant of the building is given any opportunity to be heard, and there is no provision in the ordinance requiring a determination of the question as to whether or not the building or structure is in such condition to warrant condemnation or in such condition as to be a public nuisance or is a menace to the health or safety to the community by any tribunal, board, or officer except the building inspector. The ordinance attempts to make the building inspector the informant, the judge, the jury, and the executive officer, and provides no means of redress in the event this official should wrongfully evict an owner or tenant either because of bad judgment or bad motives. It purports to give the building inspector the power to declare that a thing is a nuisance, though it is not declared so to be by statute.
The circuit judge held that the ordinance was invalid. The ordinance cannot be held valid either as the authority for the exercise of the police power to abate a nuisance or as authority for the exercise of police power to condemn and destroy private property. Unless property is within that class which is designated and condemned by statute or the common law as a nuisance, the determination of the question as to whether or not it is a nuisance becomes a judicial one, and its final determination cannot be effectuated by an administrative officer or board. See Crossman v. City of Galveston, 112 Tex. 303, 247 S.W. 801, 26 A.L.R. 1210; also Yates v. City of Milwaukee, 10 Wall. (77 U.S.) 497, 19 L.Ed. 984.
Before private property may be condemned and destroyed in the exercise of police power, except in cases of emergency, there must be an opportunity for the owner or occupant to be heard and an orderly determination of the issue as to whether or not the property is subject to condemnation under reasonable police regulations. A case directly in point is that of Rosenberg v. Sheen, 77 N.J.Eq. 476, 77 A. 1019, where the court said:
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