Ex parte Fiske

McFarland, J. The petitioner was convicted in the proper court of a violation of section 40 of an ordinance of the city and county of San Francisco, entitled “ To define the fire limits of the city and county of San Francisco, and making regulations concerning the erection and use of buildings in said city and county.” He was sentenced to pay a fine of $250, and in default of payment, to be imprisoned in the county jail at the rate of one day for each one dollar of the fine. -Not having paid the fine, he is in the custody of the chief of police of said city and county. Said section 40 is as follows: “No wooden building within the fire limits shall be altered, changed, or repaired without permission in writing signed by a majority of the firewardens, approved by a majority of the committee on fire department and the mayor, which permit shall fully express the alterations, changes, or repairs allowed, a copy of which shall be filed by the grantee,” etc. Other parts of the ordinance describe the fire limits; and the acts of petitioner for which he was convicted were done within them.

The grounds relied on by petitioner for his discharge which we deem it proper particularly to notice are, that the attempted enactment of said section 40 was beyond the legislative power of the municipal government, or of the state; that said section 40 is unreasonable, oppressive, and not general in its operation; that it is an unwarrantable delegation of power to the officers named therein; that it attempts to grant to said officers absolute power, which may be used arbitrarily to the advantage of favorites, and to the prejudice of others; that it denies to petitioner the equal protection of the law; and deprives him of liberty and property without due process of law, in violation of the fourteenth amendment of the federal [127]constitution; and that for these reasons, expressed in various forms, the said section is invalid and void.

It is, no doubt, difficult to keep always in view the precise line which definitely bounds the proper exercise of what is called the police power of a state, and separates it from an improper infringement upon the constitutional rights of individuals; but it is often not difficult to see whether a particular exercise of that power is on the right or wrong side of that line. And it has become the settled law that a state, — and under our system a municipality of the state, — in order to protect the property of all its citizens from the ravages of fire, may establish fire limits, and regulate or prevent the use of wooden buildings within such limits; and that, although this may disturb the enjoyment of the rights of an individual, he is, in contemplation of law, compensated by sharing the general benefits derived from it. (Tiedeman on Limitation of Police Power, sec. 122 e, and cases cited.) There would therefore be no doubt as to the validity of the section of the ordinance under review if it were not for the provision that certain officers may grant permissions to make repairs. It is clear, however, that a literal compliance with a regulation prohibiting the repairing of a wooden building might work, in some instances, useless hardships. The repair of a leaking roof or broken window would be necessary to the comfort and health of a family, without enhancing the danger which the framers of the ordinance sought to provide against; and repairs of a more extensive character might be made to particular houses, standing in particular localities, without increasing the fire risks. And it is equally clear that no general rule could be established beforehand that would meet the emergencies of individual cases. Therefore the power to give relief in particular instances is conferred on certain officers; and it is not to be presumed that they will exercise it wantonly, or for purposes of profit or oppression. Neither is the granting of