Runge v. Glerum

• Decision Date: 18 August 1917
• Citation: 164 N.W. 284,37 N.D. 618
• Court: North Dakota Supreme Court

164 N.W. 284

37 N.D. 618

A. H. RUNGE, Fire Marshal of the State of North Dakota, v. I. GLERUM

Supreme Court of North Dakota

August 18, 1917

Appeal to the District Court of Ramsey County, A. G. Burr, Special Judge, from an order of the state fire marshal. Order affirmed.

Plaintiff appeals.

Affirmed.

Siver Serumgard, for appellant.

To justify the courts in declaring a statute invalid, it is not essential that it should contravene some expression of the Constitution. If the act is inhibited by the general scope and purpose of the fundamental law, it is invalid as though forbidden by the letter of the instrument. State ex rel Atty. Gen. v. Moores, 55 Neb. 480, 41 L.R.A. 624, 76 N.W. 175.

The district court has no power to interfere with the action of the city council in a purely local matter. All political power is inherent in the people. Const. art. 1, §§ 24, 130; Glaspell v. Jamestown, 11 N.D. 86, 88 N.W 1023; Ex parte Corliss, 16 N.D. 470, 114 N.W. 962.

The burden of proof is upon the fire marshal to justify his acts. It is the duty of the fire marshal to remedy the dangerous condition without destruction of property.

"These restrictions on wooden buildings within fire limits are strictly construed as being not only in derogation of the common law, but of a highly penal nature. " Comp. Laws 1913, § 206; 13 Am. & Eng. Enc. Law, 397.

The question of percentage of damage to a building by fire arises by reason of a valid city ordinance of the city of Devils Lake. The ordinance does not provide, nor is it a fact, that a wooden building, when more than half destroyed, becomes dangerous as a fire hazard. The ordinance simply means that when a wooden building has been so damaged and has been fully repaired, it becomes a new building, and a new wooden building cannot be erected within the fire limits. 13 Am. & Eng. Enc. Law, 2d ed. 398, P 4.

Wm Langer, Attorney General, H. A. Bronson, Assistant Attorney General, E. B. Cox, Special Assistant Attorney General, D. V. Brenan, Assistant Attorney General, Cuthbert & Smythe, and Henry J. Linde, for respondent.

The act of the legislature creating the office of state fire marshal and fixing his duties thereunder is not unconstitutional as abridging the right of local self-government of cities. State ex rel. Linde v. Taylor, 33 N.D. 76, L.R.A. , , 156 N.W. 561; Ex parte Corliss, 16 N.D. 470, 114 N.W. 962; State ex rel. Faussett v. Harris, 1 N.D. 194, 45 N.W. 1101; Elliott, Mun. Corp. 2d ed. 258.

"We cannot declare an act of the legislature invalid because it abridges the privileges of self-government in a particular, in regard to when such privileges are not guaranteed by the provisions of the Constitution." Brodbine v. Revere, 182 Mass. 598, 66 N.E. 607; State ex rel. Bulkeley v. Williams, 68 Conn. 131, 48 L.R.A. 465, 35 A. 24, 421; Brown v. Galveston, 97 Tex. 1, 75 S.W. 488; Re Senate Bill, 12 Colo. 188, 21 P. 481; Daley v. St. Paul, 7 Minn. 390, Gil. 311; David v. Portland Water Committee, 14 Ore. 98, 12 P. 174; State ex rel. White v. Barker, 116 Iowa 96, 57 L.R.A. 244, 93 Am. St. Rep. 222, 89 N.W. 204; Goodnow, Mun. Corp. p. 9; 1 Bryce, Am. Com. p. 630; State ex rel. Atty. Gen. v. Moores, 55 Neb. 480, 41 L.R.A. 624, 76 N.W. 175.

"A police regulation not operating unreasonably beyond the occasions of its enactment is not invalid because it may affect incidentally the exercise of some right guaranteed by the Constitution." Re Anderson, 69 Neb. 686, 96 N.W. 149, 5 Ann. Cas. 421; Ex parte Boyce, 27 Neb. 299, 65 L.R.A. 47, 75 P. 1, 1 Ann. Cas. 66; Stone v. Mississippi, 101 U.S. 817, 25 L.Ed. 1079; Boyd v. Alabama, 94 U.S. 645, 24 L.Ed. 302; Metropolitan Bd. of Excise v. Harris, 34 N.Y. 657.

"Neither the state nor a municipal division thereof to which the power is delegated can, by affirmative action or by inaction, permanently devest itself of the authority and power to exercise it." State ex rel. Minneapolis v. St. Paul, M. & N. R. Co. 98 Minn. 380, 28 L.R.A. (N.S.) 298, 120 Am. St. Rep. 581, 108 N.W. 261, 8 Ann. Cas. 1047; State ex rel. Laclede Gaslight Co. v. Murphy, 130 Mo. 10, 31 L.R.A. 798, 31 S.W. 594, 170 U.S. 78, 42 L.Ed. 955, 18 S.Ct. 505; Iler v. Ross, 64 Neb. 710, 57 L.R.A. 895, 97 Am. St. Rep. 676, 90 N.W. 869.

All rights of property are held subject to reasonable and fair precautions and measures for the safety and welfare of all the citizens, and the law may provide for such, and may prescribe for the enforcement of such measures. Com. v. Alger, 7 Cush. 53; Salem v. Eastern R. Co. 98 Mass. 431, 96 Am. Dec. 650; Blair v. Forehand, 100 Mass. 136, 97 Am. Dec. 82, 1 Am. Rep. 94; Salem v. Maynes, 123 Mass. 372.

The police power extends to the protection of the lives and health of the people, and to the protection of all the property within the state. Munn v. Illinois, 94 U.S. 113, 24 L.Ed. 77; Raymond v. Fish, 51 Conn. 80, 50 Am. Rep. 3; People v. Bennett, 83 Mich. 457, 47 N.W. 250; Ogden City v. McLaughlin, 5 Utah, 387, 16 P. 721; Bittenhaus v. Johnston, 92 Wis. 588, 32 L.R.A. 380, 66 N.W. 805.

It is not necessary that the owner of property damaged by fire be given the right to repair it. The fire marshal is clothed with authority, and a sound discretion in all such matters as come within the province of his office and its duties and his decision will not be interfered with unless it clearly appears that he has abused that discretion. Comp. Laws 1913, § 206.

BRUCE, Ch. J. GRACE, J., dissenting.

OPINION

Statement of facts by BRUCE, Ch. J.

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. Dak., 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 (25) 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. DePlazes, 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 § (8), chapter 169, of the Session Laws 1913.

Respectfully submitted,

I. Glerum, Owner.

Title

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 order 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 on 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 his proceedings as his attorney, and further that he desired no attorney; and, being advised that he was entitled to have witnesses subpoenaed 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. DePlazes, 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...