State v. Cook
| Citation | 276 P. 958,84 Mont. 478 |
| Decision Date | 19 April 1929 |
| Docket Number | 6404. |
| Parties | STATE et rel. v. COOK. BROOKS |
| Court | Montana Supreme Court |
Rehearing Denied May 2, 1929.
Appeal from District Court, Lewis and Clark County; W. H. Poorman Judge.
Action by the State, on the relation of William G. Brooks, against Andrew B. Cook. From a judgment against defendant, he appeals. Affirmed.
Wellington D. Rankin and Arthur P. Acher, both of Helena, for appellant.
L. A Foot, Atty. Gen., L. V. Ketter, Asst. Atty. Gen., and Geo. W Padbury, Jr., and A. P. Heywood, both of Helena, for respondent.
The defendant, Andrew B. Cook, was, at all times hereinafter mentioned, the owner of a two-story frame dwelling house fronting on Park avenue in a residential district of the city of Helena, and of certain sheds to the rear thereof, which buildings were more than 40 years old and had, in recent years, been permitted to fall into disrepair.
The relator, William G. Brooks, is the state fire marshal, duly appointed and acting pursuant to authority vested in him by the provisions of chapter 209, part 3, of the Political Code of 1921, to inspect and, in proper cases, to condemn, any building which "for want of proper repair, by reason of age, dilapidated condition, * * * or for any other cause or reason is especially liable to fire," and which "is so situated as to endanger other buildings and property," as a public nuisance and to order the condition remedied, but if the order is not obeyed, the fire marshal may not summarily proceed and can only "maintain an action" against the owner "for the purpose of procuring an order" from the court, along the same lines as the order given by him. Section 2753, Rev. Codes 1921.
At some time prior to May 15, 1926, the roof and rear walls of the Cook building, and a shed connected therewith, were partially destroyed by fire and, after an inspection of the interior and exterior thereof, on that date, the fire marshal served upon the defendant a written notice declaring the building a fire hazard and dangerous to surrounding property, and ordering it torn down and removed within 20 days. This notice was ignored by the defendant, and on February 28, 1927, the county attorney of Lewis and Clark county, on behalf of the fire marshal, filed complaint herein, alleging that the building in question was in a dilapidated condition and especially liable to fire, so situated as to endanger property within 50 feet of it, and that it could not be repaired. Nevertheless the prayer of the complaint is that the building be declared a public nuisance and either repaired to remedy its dangerous condition, or torn down and removed.
The filing of this complaint is in strict compliance with the provisions of section 2753, above, which section further provides that: "Upon the filing of the complaint in such a proceeding in the district court, the judge thereof shall issue an order to show cause, directed to such owner, * * * requiring him to be and appear before such court at the time and place therein specified, not less than five nor more than ten days from the date of such order, then and there to show cause why such building or structure should not be repaired, torn down, or demolished, and all dangerous conditions removed." Upon the filing of the complaint the district judge made such an order, directed to Mr. Cook, requiring him to appear at the courtroom in Helena on March 10, 1927. The order follows the language of the statute, and closes with the direction that a certified copy of the complaint and the order be personally served upon the defendant at least five days prior to the time set for the hearing. This order was placed in the hands of the sheriff for service, and on March 1, 1927, return was made that defendant could not be found in the county; it was then placed in the hands of the sheriff of Broadwater county, the place of residence of defendant, and a like return was made on March 3, 1927.
The record does not disclose that the order was ever served upon Mr. Cook, but on October 14, 1927, he made general appearance by filing a demurrer to the complaint, which was overruled, and thereafter answered, denying the allegation that the building was a fire hazard and a public nuisance and setting up as a special defense, that, on the grounds hereinafter considered, the act under which the fire marshal and the court proceeded was unconstitutional.
The matter was finally brought on for trial in April, 1928, and, on the evidence submitted, the court found the defendant to be the owner of the building and that the building "was and is a public nuisance," in a dilapidated condition, especially liable to fire, and so situated as to endanger other property and buildings in the vicinity, and that it cannot be repaired. On these findings, judgment was entered requiring the defendant to tear the building down within 20 days after personal service upon him of a certified copy of the order and decree. Defendant moved for a new trial, which motion was denied. He has appealed from the judgment and, by appropriate specifications of error, raises the question of the constitutionality of the act in question in the particulars herein discussed, and of the sufficiency of the evidence adduced to support the judgment.
1. Defendant contends that the act in its entirety is violative of section 36, article 5, of our Constitution, in that it attempts to delegate to the fire marshal municipal functions lodged in the city.
The constitutional prohibition is: "The legislative assembly shall not delegate to any special commission, private corporation or association, any power to make, supervise or interfere with any municipal improvement, money, property or effects, whether held in trust or otherwise, or to levy taxes or to perform any municipal functions whatever."
The Legislature has, by section 5039, Revised Codes 1921, granted to cities and towns certain legislative powers, among which we find that "for the purpose of guarding against fire" such municipalities may "prescribe the limits within which wooden or combustible buildings must not be erected, placed or repaired, and to establish fire limits within the city or town" (subdivision 26); to establish and maintain fire departments (27) and equipment (28), and "to inspect chimneys, flues, fireplaces, stovepipes, ruins, structures, and boilers, and, when dangerous, to require the same to be removed or put in order, and prohibit the use thereof until safe." (29.) These provisions have been in effect since 1889.
Pursuant to the power thus given, the city of Helena, in 1908, enacted ordinances now appearing as sections 619 to 623, inclusive, of the ordinances of the city, establishing fire limits within the city and providing for inspection and condemnation of frame buildings within such limits when damaged by fire or decay in excess of 33 1/3 per cent. of the value of such buildings; the facts to be determined by a board of arbitration. These ordinances provide that, on findings against the owner of such a building, the city building inspector shall cause the removal of the building and it shall be unlawful to repair it. The subject-matter of this action is within the fire limits established by the city of Helena, and it is admitted that no proceedings have been had under the ordinances above mentioned.
Measures for the protection of life and property against fire hazards fall within the police power of the state, which power may either be exercised by the state through proper machinery or delegated for local administration to cities or towns. York v. Hargandine, 142 Minn. 219, 171 N.W. 773, 3 A. L. R. 1627.
It will be noted that no one of the functions of a city expressly mentioned in the constitutional prohibition, above, falls under the head of police power, and, if the prohibition operates to prevent the Legislature from authorizing a state fire marshal to act within the limits of a city, it must be by virtue of the general clause "or to perform any municipal functions whatever."
The functions of local self-government are dual in their nature, including two classes of powers, two classes of rights, and two classes of duties: The one governmental, political, and public, as an agency of the state; the other proprietary, private and semiprivate, or merely municipal, exercised purely for its own benefit. 43 C.J. 179-182. "This distinction as to the different capacities in which municipal corporations act is important and is so well grounded as to be a part of the law of the land." Milwaukee v. Raulf, 164 Wis. 172, 159 N.W. 819. This distinction is recognized in Griffith v. City of Butte, 72 Mont. 552, 234 P. 829, wherein the two classes of functions are defined as follows: "(1) Governmental, which are those conferred upon such a corporation as a local agency of prescribed and limited jurisdiction to be employed in administering the affairs of the state and promoting the public welfare generally; and (2) municipal, being those granted for the special benefit and advantage of the urban community embraced within the corporate boundaries." Acts authorized under the police power, eminent domain, the administration of justice, and the maintenance of fire protection, fall within governmental functions, while the care of streets and alleys, the erection and maintenance of local improvements, and the care and protection of city property, are purely municipal functions. 43 C.J. 183.
It is therefore apparent that all of the powers specifically enumerated in the above constitutional prohibition are concerned with purely municipal functions as such, and, under the rule of construction known as ejusdem generis, the general words "any municipal function whatever" must be limited to functions of the same...
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