Runge v. Glerum

• Decision Date: 18 August 1917
• Parties: RUNGE, State Fire Marshal, v. GLERUM.
• Court: North Dakota Supreme Court

37 N.D. 618

164 N.W. 284

RUNGE, State Fire Marshal,

v.GLERUM.

Supreme Court of North Dakota.

Aug. 18, 1917.

Syllabus by the Court.

Chapter 169 of the Laws of 1913, being sections 201 to 223 of the Compiled Laws of 1913, and which creates the office of state fire marshal, is not an unconstitutional interference with the local government of cities and villages, and is therefore not for that reason invalid.

Chapter 169 of the Laws of 1913, being sections 201 to 223 of the Compiled Laws of 1913, and which gives to the state fire marshal, under certain conditions and subject to appeal to the district court, the power to order the removal, destruction, or repair of buildings, is not unconstitutional as depriving persons of property without due process of law.

Where, under the provisions of chapter 169 of the Laws of 1913, being sections 201 to 223 of the Compiled Laws of 1913, the state fire marshal has ordered the destruction of a building, his order will only be interfered with upon appeal, where a clear abuse of discretion has been shown.

The appeal from the order of the fire marshal, provided for in chapter 169 of the Laws of 1913, being sections 201 to 223 of the Compiled Laws of 1913, contemplates a hearing upon the record before the fire marshal, and not an entire new trial.

It is not necessary to the validity of an order directing the destruction of a building under sections 201 to 223 of the Compiled Laws of 1913 that it shall be shown that such building has sustained a loss by fire to the extent of 50 per cent. of its value, even though the local ordinances provide that, unless such loss is shown, the building may be rebuilt.

In case of an appeal from the order of the fire marshal under the provisions of sections 201 to 223 of the Compiled Laws of 1913, a new judgment is entered in the district court.

Appeal from District Court, Ramsey County; A. G. Burr, Special Judge.

A. H. Runge, Fire Marshal of the State of North Dakota, condemned property of I. Glerum, and ordered removal of the remnants of a building. The order being affirmed on appeal, defendant again appeals. Affirmed.

Grace, J., dissenting.

This is an appeal from a judgment of the district court of Ramsey county, affirming the order of the fire marshal, issued on an appeal or complaint to the fire marshal from an order of the chief assistant fire marshal, condemning the property of the defendant, I. Glerum, and ordering the removal of the remnants of the building. The appeal to the fire marshal and the order issued thereon were as follows:

“Appeal or Complaint to Fire Marshal.

Department of Insurance, Fire Marshal's Office.

State of North Dakota, County of Ramsey-ss.:

In the Matter of the Proceedings Regarding One-Story Frame Building Located on Lot 16, Block 25, of the City of Devils Lake, N. D.

[25][8] A. H. Runge, Fire Marshal, Bismarck, North Dakota-Dear Sir: I received yesterday, January 15, 1915, a copy of an order directing me to tear down a one-story frame building injured by fire on or about November 14, 1914, located on lot 16, block of the city of Devils Lake, N. D. Under the ordinances of the city of Devils Lake, N. D., the owner is entitled to repair a frame building within the limits injured by fire, when the damage does not exceed 50 per cent. of the value, exclusive of foundation. I have had a board of arbitration appointed, consisting of John Marshall, architect and builder, and P. L. De Plazes and Math. Peters, contractors and builders. These men fixed the damage to not exceed 35 per cent. Besides I have had several other carpenters to go over the building, and none of them fixed the damage to more than 40 per cent. Now I would ask you to kindly modify your order, so as to allow me thirty days within which to repair the building and put it in good shape. If you are unwilling to do this, I demand a hearing under the provision of section, chapter 169, of the Session Laws 1913. Respectfully submitted.

I. Glerum, Owner.”

“Order.

H. L. Reade, the chief assistant fire marshal of the state of North Dakota, having on the 10th day of January, A. D. 1915, visited and inspected that certain frame structure located on lot 16, block 25, of the city of Devils Lake, Ramsey county, North Dakota, and having found and reported the same had been visited by fire and that the same is now in a dangerous condition and a menace to adjoining property as a fire hazard, and that thereafter, and on the 14th day of January, A. D. 1915, the said chief assistant fire marshal of the state of North Dakota made his order condemning said structure located on the premises hereinbefore described, and further ordered as follows, to wit: ‘You are hereby ordered to tear down and remove the remnant of this building within thirty days from the date of this order, and thereby lessen the fire hazard to adjoining property and the city of Devils Lake’-which said order was duly and legally served on I. Glerum, the owner of the said building, and from which order the said I. Glerum duly appealed to the fire marshal of the state of North Dakota, and hearing on the said appeal having come on pursuant to adjournment taken the 4th day of February, A. D. 1915, at the hour of 10 o'clock a. m., in the city fire hall in the city of Devils Lake, Ramsey county, North Dakota, the appellant, I. Glerum, appearing in person and being advised of his rights with respect to an attorney, stated that Siver Serumgard, Esq., who appeared for him as his attorney in a certain action wherein Nicholas Rothecker was plaintiff and himself defendant, was not to appear for him in this proceeding as his attorney, and further that he desired no attorney, and, being advised that he was entitled to have witnesses subpœnaed on his behalf to testify in said proceedings, stated that he desired no further witnesses, and said appellant having offered in evidence his own sworn statement, and for consideration by the fire marshal copies of the affidavits of Fred Bassford, Math. Peters, P. G. Miller, P. A. De Plazes, and John Marshall, which affidavits were copies of a part of the files in the action wherein Nicholas Rothecker was plaintiff and said I. Glerum defendant, an injunctional proceeding pending in the district court of Ramsey county, North Dakota, relative to the subject-matter in issue in this proceeding, and C. O. Russell, chief engineer of the fire department of the city of Devils Lake, North Dakota, and by his attorney, Arthur R. Smythe, and having offered in evidence the testimony of said C. O. Russell and J. A. Shannon, together with the Exhibits A and B, photographs of the building or structure located on the premises hereinbefore described, and the undersigned, chief fire marshal of the state of North Dakota, having on this day viewed and inspected that certain structure located on the hereinbefore described premises, and having duly considered all the statements, evidence, and exhibits in this case, and on motion of Arthur R. Smythe, attorney for the chief engineer of the fire department of the city of Devils Lake, it is hereby ordered, adjudged, and determined that that certain order heretofore and on the 14th day of January, A. D. 1915, made by the chief assistant fire marshal of the state of North Dakota, and duly served on the defendant, I. Glerum, be and the same hereby is in all things affirmed; and it is further ordered that under and by virtue of my office, under the provisions of chapter 169 of the Session Laws of 1913, you, I. Glerum, are directed and required to tear down and remove the remnants of that certain structure located on lot 16, block 25, original plat of the city of Devils Lake, Ramsey county, North Dakota, thereby lessening the fire hazard to adjoining property and the city of Devils Lake. You are advised in no way to omit complying with this order under penalty of said law.

Witness my signature at Devils Lake, Ramsey county, North Dakota, this 4th day of February, A. D. 1915. A. H. Runge, Fire Marshal of the State of North Dakota.”

The findings of fact and conclusions of law by the trial court were as follows:

“That I. Glerum is now and at all times hereinafter mentioned has been the owner of lot 16, block 25, of the original plat of the city of Devils Lake, Ramsey county, North Dakota, and of that certain frame building, or remnant of that certain frame building, remaining thereon.

That on or about the 24th day of November, A. D. 1914, the said frame building located on said lot 16, block 25, of the original plat of the city of Devils Lake, North Dakota, was visited by fire and suffered damage and injury thereby to the extent of more than 50 per cent. of the value of said building, and that said frame structure on the said described premises suffered such injury and damage by said fire as to become an unusual and extraordinary fire hazard to adjoining property and the city of Devils Lake, Ramsey county, North Dakota.

That Hon. A. H. Runge, fire marshal of the state of North Dakota, did on the 4th day of February, A. D. 1915, make an order in the said above-entitled matter, confirming the order previously made by Hon. H. L. Reade, assistant chief fire marshal of the state of North Dakota, wherein and whereby, amongst other things, it was ordered that the said I. Glerum be, and ‘you are hereby ordered to tear down and remove the remnants of this building within thirty days from the date of the order, thereby lessening the fire hazard to adjoining property and the city of Devils Lake, and further ordered, adjudged, and determined that that certain order heretofore and on the 14th day of January, A. D. 1915, made by assistant chief fire marshal of the state of North Dakota, duly served on the defendant, I. Glerum, and the same hereby is in all things affirmed; and it is further ordered that under and by virtue of the authority vested in me by virtue of my office under the provisions of chapter 169 of the Session Laws of 1913, you, I. Glerum, are...