People ex rel. Gamber v. Sholem

Mr. Justice Dunn,

dissenting:

It is the duty of the court in considering the constitutionality of a statute to give it such construction, if possible, as will sustain it rather than one which will overthrow and destroy it. The purpose of the statute in question is to provide against the calamities of fire, and it is clearly within the police power of the State to provide for a system of inspection and for the enforcement of the duty of the owners of buildings to keep them in such condition as not to expose other buildings and persons and property in them to the danger of fire. The objection made to the statute is that it does not fix any rules by which it may be determined when a building shall be declared especially liable to fire, or so situated as to endanger other buildings or property, or so occupied that fire will endanger persons or property therein, and that the power granted the fire marshal, in the absence of such rules, is a delegation of legislative and judicial authority to the arbitrary decision of the fire marshal.

Statutes providing against the dangers from fire are necessarily somewhat general in their terms, because it would be impossible to describe in detail the various conditions which, under the different circumstances of location, construction, condition, occupation, use and surroundings of buildings, would render them dangerous. In People v. Reynolds, 5 Gilm. 1, it was held that to establish the principle that whatever the legislature may do it shall do in every detail or else it shall go undone, would be almost to destroy the government. It is there said (p. 13) : “Necessarily, regarding many things, especially affecting local or individual interests, the legislature may act either mediately or immediately. We see, then, that while the legislature may not divest itself of its proper functions or delegate its general legislative authority, it may still authorize others to do those things which it might properly yet cannot understanding^ or advantageously do itself. Without this power legislation would become oppressive and yet imbecile.” Section 9 does not confer the power upon the fire marshal arbitrarily to decide that a building which is not dangerous with reference to fire is dangeroús, and does not make his finding that it is so, conclusive upon the owner. When if says that whenever any of the officers mentioned in the section shall find a building is especially liable to fire and so situated as to endanger other buildings or property he shall order the same to be removed or remedied and such order shall forthwith be complied with by the owner or occupant of the building, it does not make the decision of the officer, or of the State fire marshal on appeal, conclusive upon the owner of the building. No penalty can be imposed for disregard of the order except upon the judgment of a court rendered upon a trial, in which the owner has the right to appear and contest the fact. The duty of the fire marshal is not .legislative, for the enforcement of the law is not left to his discretion. His duty is merely that of inspection and the supervision of the enforcement of the law. Neither is his duty judicial, for his acts are merely ministerial in ascertaining, by inspection, the condition of buildings and notifying the owners or occupants. The penalty imposed by section 9 is not for disobedience to the order of the officer, but is for a failure to keep his property in condition which will not be dangerous to neighboring property after having been notified of its dangerous condition.

The exercise of judgment by a ministerial officer in the performance of his duties does not, of itself, indicate the performance of either legislative or judicial functions. In Arms v. Ayer, 192 Ill. 601, an act which gave discretion to an inspector as to the number, location, material and construction of fire-escapes was held not to be a delegation of legislative or judicial power, and in People v. Cregier, 138 Ill. 401, discretion was held to be properly conferred upon an officer authorized to issue dram-shop licenses to determine the number to be granted and the location. An ordinance giving the commissioner of public works authority to approve a device to prevent the spilling of oil on the streets is not in violation of the constitution. (Spiegler v. City of Chicago, 216 Ill. 114.) The cases in which laws have been held unconstitutional as being a delegation of legislative or judicial powers have been those which vested in the officer discretion as to whether the law should be enforced or not, as in Sheldon v. Hoyne, 261 Ill. 222, where section 2 of the Gas Safety Appliance act was held invalid because of a proviso which exempted from the requirements of the section as to the installation of gas safety appliances certain cases unless the conditions under which the gas was used were such as to endanger life or property, and then provided that in all such cases, “at the discretion of said duly authorized officer or officers, all such buildings may be required to be equipped as provided for herein.” In Cicero Lumber Co. v. Town of Cicero, 176 Ill. 9, an ordinance was held to vest the board of trustees with arbitrary power which forbade the use of heavy vehicles on a pleasure driveway except “upon special permission” of the board of trustees, without prescribing any general condition upon which such permission should be granted. In Noel v. People, 187 Ill. 587, section 8 of the Pharmacy act of 1895 was held invalid because it authorized the board of pharmacy, “in their discretion,” to issue permits to parties engaged in business in villages or other localities to sell domestic remedies and proprietary medicines. In Block v. City of Chicago, 239 Ill. 251, objection was made to an ordinance of the city, of Chicago regulating the exhibition of moving pictures, authorizing the chief of police to issue a permit for all pictures which are not obscene or immoral and prohibiting a permit for the exhibition of any obscene or immoral pictures, because the ordinance fixed no standard by which the question was to be determined, but the court overruled the objection, saying: “Manifestly, it would be impossible to specify in an ordinance every picture or particular variety of picture which would be considered immoral or obscene, and no definition could be formulated which would afford a better standard than the words of the ordinance. It is doubtless true, as said by counsel, that there are people who differ upon the subject as to what is immoral or obscene. There are the shameless and unclean, to whom nothing is defilement and from whose point of view no picture would be considered immoral or obscene. .Perhaps others could be found, with no laxity of morals,' who pay homage to art and would not regard anything as indelicate or indecent which had artistic merit, and would look upon any person entertaining different sentiments as of inferior intelligence, without proper training ón the subject and blinded with bigotry. Both classes are exceptional, and the average person of healthy and wholesome mind knows well enough what the words ‘immoral’ and ‘obscene’ mean and can intelligently apply the test to any picture presented to him. There is as great diversity of opinion as to what constitutes good moral character, but it is beyond question that an officer authorized to grant a license to keep a dram-shop may determine whether the applicant has a good moral character, and there has been no ground for complaint that the power has been wrongfully or oppressively exercised against applicants. It is presumed that the chief of police, or the mayor in case of an appeal to him, will perform his duty with reasonable intelligence and in accordance with the generally accepted meaning of the words. If there should be an abuse of power on the part of either the chief of police or the mayor, the ordinance does not prevent an application to a court to compel either officer to perform his duty and issue a permit for a picture which is not immoral or obscene.” So in this case, it would be difficult to define any standard by which to determine whether any building or structure was especially liable to fire, and so situated as to endanger other buildings -or property, or so occupied that fire would endanger persons or property therein, in words more definite than the language of the statute itself, but the average person of reasonable intelligence can readily determine the question.

The statute does not confer upon the State fire marshal or other officer the power to arbitrarily determine that a building, for want of proper repair or by reason of age and dilapidated condition, was especially liable to fire and would endanger persons and property. If he should make such arbitrary determination it could not be enforced against the owner or occupant of the property, who has the right to have the question submitted to and determined by a jury before the penalty can be enforced against him.