The record-union. [volume] (Sacramento, Calif.) 1891-1903, 1895-10-14
THE PROCEEDING Was IRREGULAR.
Hence the Charge Against Lawyer
Joseph Was Dismissed.
Judge Hinkson Interprets the Ord1-
nance Concerning the Removal
of Dangerous Structures.

| Judge Hinkson on Saturday rendered
his decision in the habeas corpus case OF
Isaac Joseph, who was arrested for the
alleged violation of an ordinance provid-
! ing for the removal of buildings desig-
mated by the Chief Engineer of the Fire
! Department as nuisances. The court dis
charged MIR. Joseph, and in doing so gave
his reasons as follows:
DECISION OF THE COURT.
| The petitioner sued out q writ of ha beas
| corpus, in his petition for which he sets
! out that he is unIawfully imprisoned de-
/ tanned, confined and restrained OF his lib
/ erty in the City Prison OF the city OF Sac
ramentO. in this county and State, by
/ NJ. NJ. Drew Chief of Police of said city :
and that the alleged cause therefor con-
sists III that the said Drew, as such Chief
| OF Police, claims the right TO imprisoIl
! him by virtue of warrant issued out OF
the Police Court of said city, but that said
warrant was unlawtully issued aud was
| based upon complaint or information
which charges him with the commission
Of q misdemeanor III that he violated the
provisions of an alleged ordinance of said
! city, but that said ordinance is void, be-
/ cause it is contrary 10 the laws and Con-
| stitution of the Stale of California and OF
/ the United States.
! TO the writ OF habeas corpus, Drew, as
| such Chief OF Police, made return that
J he held the petitioner under and pur-
suant to the authority OF the SAID war
! rant.
/ Upon the hearing of the writ the peli-
toner offered the said ordinance in owl
dence, when the matter was argued by
| counsel for the respective parties, and
! submitted to the court, since when both
! parties have filed elaborate briefs. In his
argument aud brief the petitioner made
/ the following points. to wit:
/ tirst-Ihat the ordinance was not au-
| thorized by the PROVISIONS of the charter
/ of city OF Sacramento.
Second-Ihat the punishment pre-
/ scribed by the ordinance for its violation
is unreasonable, and is not in harmony
| with the laws of the State, and that there
! fore it is void.
Third-That the ordinance is void be-
cause 1t violates the provisions of the
Fifth and Fourteenth Amendments of
/ the Constitution OF the nited States
Fourth-Ihat neither the State nor the
/ city can declare property a nuisance, and
! cause its destruction when such property
was lawfully constructed. and Is not a
nuisance per Sc.
! tIth-Ihat said ordinance is in viola
/ ton OF the provisions of Section IA, Arti-
Gle of the Constitution of this State, and
SiXth-That said ordinance is not rea-
| sonaDle either IN It's provisions Or penal
/ ties and does not harmonic with the
/ laws OF the State and Countrywide Fed
! eral and State Constitutions; and he cites
a very large number OF authorities in
support of his contention. But it is not
necessary to notice either OF the points
I made by the petitioner, as another point
which he seems TO have overlooked is
decisive of the matter. The ordinance is
as follows:
/ Section /. Whenever the Chief En-
! glneer OF the Fire Department shall deem
any building that has been partially de-
stroyed by fire, or any other structure
situated within the fire limits of the city
/ of Sacramento. as the same are known
and defined by the city ordinances, to be
dangerous or liable TO endanger sur
| rounding property by fire, or as not being
sufficiently protected from danger by fire,
! he shall notify The owner, agent or person
in possession thereof that the same must
! be torn down and removed within ten
/ days after such notice.
Section 2. The owner, agent or person
/ i'll possession shall have the right to ap-
! peal from the notice of the Chief Engi-
neer of the fire department 10 the Board
| OF Trustees, and the Board of Trustees
shall hear aud determine the matter. II
| it be decided by the Board of Trustees to
affirm the action Of the Chief Engineer
of the fire department., the owner, agent
/ or occupant of said premises must,
within five days after the action by the
! Board OF trustees, commence III good
/ faith to tear down and remove said struc-
ture or building, and must complete such
removal within twenty days thereafter.
Section 3. Amy person violating any
OF the provisions OF this ordinance shall
! be deemed guilty of misdemeanor. and
/ on conviction thereof shall be punished
/ by fine not exceeding $500, or by i'm
/ prisonment in the City Jail not exceed
/ ing six months, or by both such fine and
| Imprisonment"
Section imposes a penalty for The
violation Of ANY of the provisions of this
| ordnance but il will be observed that
no duty is enjoined by the provisions OF
| Section l that can be violated by the per-
sons sought TO be made Liable for a pen
atty under the provisions of that section.
That section only devolves the duty
upon the Chief Engineer of the Fire De-
partment whenever he shall deem any
building that has been partially destroyed
| by ire or any other structure situated
within the ire limits. TO be dangerous
or liable TO endanger surrounding prop
erty by fire, or as not being sufficiently
protected from danger by fire, to notify
the owner, agent or person in possession
/ thereof that the same must be torn down
and removed within ten days after such
notice.
1t viii be observed that this section
does not command the person SO notified
/ 10 tear down aud remove the building
| within ten days, but Section provides
that the person so notified shall have the
[ right OF appeal from the notice OF the
Chief Engineer to the Board OF Trustees,
and II after hearing such appeal the
/ Board OF Trustees affirm the action of the
Chief Engineer then such person must,
within five days thereafter, commence,
/ in good talth. to tear down and remove
such structure, aud must complete such
removal within twenty days thereafter;
( but unless the person so notified has
availed himself OF the right ofappeal from
the notice from tho Chief Engineer to
the Board OF Trustees, and unless
the Board OF Trustees has affirmed the
action of the Chief Engineer, it is clear
that there could be no violation by him
o. any OF the provisions of the ordinance.
In other words, The notification by the
Chief Engineer Is not Il direction or com
nand To him TO tear down and remove
the structure. Notify" means to make
known, 10 give notice, to inform by
words, or by signs which are understood,
as the Constable has notified the citizens
10 meet at the hail. the bell notifies us OF
the time OF meeting (Webster's n
abridged Dictionary.
The most that can be said of the pro-
visions OF Section /, so far as they apply
to the owner, agent or person in poses
sion, is, chat through these provisions
notice is impaired 10 him that the struc-
ture must DO torn down and removed; he
is not directed or commanded 10 tear
down and remove it. nor is he advised as
to who that duty is devolved upon. The
language Of the section is, the Engineer
shall notify the owner, agent or person
in possession that the same must be re-
moved" And not that he must do it, as
he is required to do after the Board OF
| Trustees affirm the action of the Chief