The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1860-07-06

the public Inconvenience wnch may have re-
suited from the failure Of the mail on the LIST inst
c. VANDERBILT
The Law ON Unsafe buildings.
IMPORTANT OPINION OF THE CORPORATION COUNSEL.
The following communication on the powers duties
and responsibilities Of the Mayor respecting unsafe
buildings has been forwarded TO the chief magistrate
Cry or New YORK, LAW DEPARTMENT,
OyTrE COUNSEL TO CORPORATION, July 3, 1850. I
s-I have examined the recent act Of the Legislature
70 provide against unsafe buildings far relates To
the questions upon which you desire my opinion. (ta-
tutes Of 1850, p. s3f, secs. II, 70, 80
The I'D section of the act is in these wordsThe said
Superintendent report Of such survey TO be signed by
them or majority Of them, and II such report shall de-
care socn opdng OF part Of oaidng 70 DC unsafe or
make and return 10 the Mayor Of the city report Of such
survey signed by said surveyors and II unsafe dan
gerous then the said Mayor shall forthwith direct the
Sheriff Of the said city TO forthwith take down and
move such building or part OF building, and any other
building part of building that in the judgment of the
Superintendent, deputy, such Sheriff. il may be
cessary to take down and remove, in order % safely
take down and remove such unsafe or dangerous building
part OF a building"
1t will be seen that report TO the Mayor is 10 be
made unless the surveyors have first found the building
statute 1t not enough that the surveyors have reported
the insecurity TO the Superintendent Of Buildings, and
that has reported the same TO the Mayor but the
building must in fact be unsafe dangerous before the
Mayor either authorized required to After pro
vidng for the Two reports and thus bringing the matter
before the Mayor the words are, .and if unsafe
gerous" then the Mayor shall direct the Sheriff TO take
down and remove the building" This casts a
burden upon the Mayor who takes no part in
tention Of the Legislature. But il 10 difficult to under
stand why the words f unsafe dangerous were used
unless was intended to throw the responsibility upon
the Mayor Indeed, is not easy 10 why the matter
should be brought before the Mayor at ALL IL he is to do
nothing beyond the formal act Of signing direction 10
the Sheriff That might well, and with less delay be
done by the Superintendent Of Buildings.
arule in the construction Of statutes: that effect
shoud, II possible, be given to every word which the
Legislature has employed TO express its will The words
In this enactment sensible they stand, and see
ground upon which they can be rejected The difficulty
may be obviated, II are at liberty TO understand
imply the word reported that the clause will read m
(reported) unsafe dangerous them the Mayor shall
direct the Sheriff proceed II is possible that the
will feel at liberty 10 read the statute in that way but
there is 70 much room for doubt on the subject that
not advise the Mayor that he safely issue warrant 10
tue Sheriff unless he is able 70 prove that the building 10
in fact unsafe or dangerous.
Should the courts expound the statute in the way
which has been suggested solid objection - the
law 30 far as relates 70 an unsafe OF dangerous building
The man who owns and maintains such structure in
oompacty built city does wrong to the public, and,
where the danger imminent, summary remedy should
be applied TIE safety Of the people the supreme law in
such Tie statute provides for . survey by three
competent persons one Of whom NAV be selected by the
of the building, VINO IS TO have notice of the time
and place Of holding the survey. (section ID These
seem 10 be sufficient safeguards against hasy and unjust
action Indeed ii the surveyors are not mistaken, the
building which has been condemned unsafe Is public
than is provided for by this statute,
II has been said that the constitution secures the right
Of trial by Jury But that right is only guaranteed in the
where lit has heretofore been used and not
Of any 20 adopt the datory Of trial
by jury when city Is on fire, an infected ship Is at the
dock or building is in imminent danger Of falling upon
the inmates passers by.
There grave objection TO the statute which cannot
be obviaed by construction The Mayor rs required TO
direct the sheriff remove not only the unsafe building
but "any other building" which, sin the judgment OF
the Superintendent deputy such Sheriff, may be
necessary to take do~n and remove to effect the prnc
pal object II must always be strong measure, ~ say
the least, TO destroy the property OF man who not IN
fault because his wrongdons neehocr has made i ne
good police regulation, when the necessity for its
exercise is either actual or apparent or has been adud
Gated by some competent tribunal. Neither Of those
things required by this law The sheriff, who merely
executive officer authorized 10 settle the question
for himself When called into court for pulling down
good and building, he may answer not that the
destruction either actually apparently necessary
To the public safety, that had been adudgcd by
any else 'but that n my Judgment was necessary
TO pull down your house TO remove the unsafe house 81
your neighbour and that will be good plea II the law
IS valid cannot think that The legislature has any
such power over the property Of individuals.
Property may be destroyed 10 prevent the spreading OF
contagratou con asous disease and in other cases
where the act is essential - the safety OF the people
But tho or executive officer who takes IL upon
himself 10 decide upon the actual or apparent necessity
acts upon his peril His mistaken Judgment, however
honestly may have been formed viii not be sufficient
Justification.
II may be said that the legislature make the She
well be doubted where, with U.S. the fundamental Law
has distributed the powers of government among dre
rent departments giving the Judicial authority 70 one
and the executive 10 another.
In addition TO this, the constitution provides that
person shall be deprived Of life liberty or property
without due process OF law and there "a nothing ike
due process Of law where the Sheriff. with warrant
TO the unsafe house OF man, pulls down the
safe house Of another.
The constitution also provides that private property
shall not be taken for public without inst compcnsa.
ton; and am strongly inclined to the opinion that de-
taking the property for public within the meaning OF
the constitution. Tho subject noticed in or
1895 Mayor &c. v Lord, II Wendell, 2s5), bat IL
not then necessary TO decide the question. This Law
makes for compensation 70 an innocent sui
fcrcr.
n the prov sion for removing safe building s
stitutiona az think IL, all persons who ACT under 1T
will be iresyasSers statute which violates the funds
mental law can neither confer power nor impose duty
upon any Although 10 may have the form q legis
lative enactment, II in truth no law At all IL IS no
better than blank paper has been ssa that ensc,
ment stands upon the statute book must be obeyed
until It's validity has been adudgcd by the courts But
such remark has solid foundation. II IL absurd 20
say that an unconstitutional act binds any Such
doctrine violates the principle on which our form Of
government ress-the principle that no power can be
exercised over the people except such they have dele
gated by the fundamental law II IL that who
dsobcys enactment, the ground that II Is unconst
utoua at his peril But Il is equally At his peril 70
follow an enactment which violates fundamental law
This may sometimes involve good citizen a dilemma
but that cannot be avoided without giving mp form Of
government.
On reading the seventy third section q the act II will
be that there for doubt whether the Sheriff
until after the Of unsafe dangerous
busdinr has been notified 20 take 10 down and has
fused failed TO proceed with the work But that qucs
ton need not now be considered.
Ihrd with regret that this, Ike many other laws spe
csly applicable 10 the city Of New York fails TO define
with accuracy the powers and duties Of individuals and
public officers and has been framed with little regard
70 the rights of property. will fear open q door
for legal STRIFE, Of which there Is moro than cucugo
already.
The paper which you have bcen requested 10 sign
directs the sheriff % remove part OF the condemned
building, No 251 Broadway, land any other building
Part q building that IN the Judgment q the sheriff
the Superintendent, deputy, may be necessary 70
remove in order W effect the principal object am of
opinion that you not obliged 90 rive such direction
sud caBoot do u with safety. CRIME G. BRONSON