Fire Dept. of New York v. . Gilmour

*457 Andrews, Ch. J. The action was tried and determined by the justice of the District Court upon the theory that the determination of the hoard of fire commissioners that the use made by the defendant of the yard of his premises for the piling of boxes was dangerous, as being likely to cause or promote a conflagration to the prejudice of life and property, was conclusive, and not open to inquiry in an action brought for the penalty given by section 463 of the Consolidation Act. It was upon this view of the law that the justice excluded the evidence offered by the defendant to show that, in fact, the use made by him -of the yard did not involve any unusual risk of fire, either from the inherent nature of the property stored therein, or in promoting a conflagration originating on adjacent premises. This, the justice declared, he could not consider, but was confined to the simple inquiry whether the order of the board of commissioners had been disobeyed. We think the justice erred in the principle upon which he proceeded. There can be no doubt of the power of the legislature to enact regulations for the protection of cities or villages against the serious dangers from conflagrations. It is one of the subjects to which the police power of the state extends, and there is no one in the wide range of this .power upon which the legislature has more frequently acted. It may directly enact a code of regulations applicable to exposed localities, or, as is more commonly done, it may invest municipalities with the power to pass ordinances regulating the subject. The authority given in most charters of municipalities to the legislative body to fix fire limits, to prohibit the erection of buildings therein of wood or other combustible materials, the storing of gunpowder or other explosive compounds in quantities and under circumstances hazardous to life and property, are among the familiar instances of the delegated power. Regulations on this subject are restrictions of personal freedom and the free use of property. But they are justified by public necessity and so are within the acknowledged power of the legislature. The legislature by section 463 of the Consolidation Act *458 conferred upon a subordinate department of the city government the power to determine in specific cases whether the use of. property for storage of combustible materials by the owner or occupant was a menace to the public safety, and upon the determination of the board of commissioners that such use was dangerous, authorized an order to be made by the board for the discontinuance of such use or the regulation thereof, upon disobedience to which the owner or occupant is subjected to a a penalty. It is manifest that if an irreviewable discretion is-thereby lodged in the board, and the citizen is precluded in a. suit for the penalty from contesting the reasonableness of an order made, the board is vested with a power of the most arbitrary description, liable to great abuse, a power which, though in terms vested in the board of commissioners is, sometimes-at-least, as the evidence in this case shows, in fact wielded by the subordinate appointees in the name of the department. It. would have been competent for the legislature to have enacted a general regulation prohibiting the piling of boxes or masses-of combustible material in yards or open spaces in the populous, and defined districts within a city, and such an enactment every citizen would be bound to obey, and where sued for a-penalty it would be no defense to a party who had violated the law, to show that in his particular case, owing to exceptional circumstances, the regulation-was unnecessary or unreasonable. The will of the legislature would stand as the reason for the rule, and being general, no one, however situated, could escape its obligation, unless indeed he could establish that passing beyond the police power it. involved some right of person or property protected by the Constitution. In other words,, where the legislature in the exercise of the police power enacts a regulation defining the duty of citizens, either in respect to their personal conduct or the use of their property, the reasonableness of the thing enjoined or prohibited is not an open question, because the supreme legislative power has. determined it by enacting the rule. (See Dil. on Mun. Corp. § 328 and cases cited.) But where the legislature, as in the present case, enacts no general rule of conduct, but invests *459 a subordinate board with the power to investigate and determine the fact whether in any special case any use is made of property for purposes of storage, dangerous on account of its liability to originate or extend a conflagration, not prescribing the uses which it permits or disallows, then we are of opinion that in such cases the reasonableness of the determination of the board or of the order prohibiting a particular use in accordance with such determination, is open to contestation by the party affected thereby, and that he is entitled, when sued for a disobedience of the order, to show that it was unreasonable, unnecessary and oppressive. The general rule in respect to the validity of ordinances of a municipal corporation, passed under a general or implied authority to enact ordinances to secure the welfare of the people of the municipality, is that they must be reasonable, and are void if not so. The courts do and doubtless should exercise great caution in interfering with the exercise of police regulations enacted under general powers conferred upon municipal corporations or subordinate public agents. But the public interests are also subserved in protecting citizens against unnecessary, unreasonable and oppressive regulations, interfering with a reasonable use of their property or their freedom of action. It was not necessary in this case that the defendant should have been notified (as he was not) of the investigation made of his premises by the appointees of the fire commissioners, or that he should have been afforded an opportunity to be heard before the order was made. (Health Department, etc., v. Rector, etc., 145 N. Y. 32.) But we think he was entitled to contest in the action for the penalty the reasonableness of the order made <md the facts upon which it proceeded. (People ex rel. Copcutt v. Board of Health, 140 N. Y. 1; Health Dept. v. Rector, supra ; City of Salem v. E. R. R. Co., 98 Hass. 431.) For the denial of this" right we think the order should be affirmed. All concur. Order affirmed.