171 Wis. 557 | Wis. | 1920
The state board of health has the general supervision of the health of the citizens of the state and is granted all powers necessary to provide for the protection of the health of the public and to order what is reasonably necessary to be done for the prevention and suppression of disease and to condemn and abate conditions causative of disease. Sec. 1407a — 6, Stats. Sub. 11 of this section provides:
“If the owner or occupant of any premises whereon any nuisance detrimental to the public health exists, fails to comply with any order of the board for the abatement or removal thereof, any member of the board, their agents or employees may enter upon the premises to which such order relates, and abate or remove such nuisance. The expense of such abatement or removal shall be paid by the owner or occupant of such premises or by the person who caused, or maintained such nuisance, and such expense shall be a lien upon the lands upon which the nuisance was maintained.”
As declared in Lowe v. Conroy, 120 Wis. 151, 97 N. W. 942:
“The power to summarily abate nuisances was fully recognized and established as a principle of the common law,^ upon the ground that the requirement of preliminary formal legal proceedings and a judicial trial would result in defeating the beneficial objects sought to be obtained.” State ex rel. Nowotny v. Milwaukee, 140 Wis. 38, 121 N. W. 658.
The legislature no doubt recognized this principle and intended to confer such power on the board of- health as would enable it to abate and remove all nuisances that are a menace
The trial court held that the interest of the vendee in possession of the land could only be subjected to the lien provided by the statute, and dismissed the claim of the state against the vendor, Liebenow. We think the principle declared in Chicago, M. & St. P. R. Co. v. Janesville, 137 Wis. 7, 118 N. W. 182, controlling in this case. It is there said:
“A defective sidewalk is a menace to the public safety, and its presence in a public street is quite analogous to the presence of a disease-breeding cesspool upon private property, which under well established principles may be re*560 moved by the public authorities and the expense thereof charged to the property, if the statute so authorize.”
In Bangor v. Rowe, supra, it was held that the owner of the land can be made liable for the expense of removing a nuisance created by a tenant over whom he had no control. In Batch v. Glenn, supra, it was held that the statutory method of charging the expense for abatement of the nuisance menacing the public health as a lien upon the land upon which it existed was a proper exercise of the police power and did not invade any constitutional rights of the owner. See cases cited in the opinion. The board of health in the instant case acted as the state’s agent to perform the important function of protecting the health of the people. The proceedings to abate the nuisance partake of the nature of a proceeding in rem. In the interest of the public generally, all private rights must yield to the public right, and the state may, as it has provided by the statute involved here, subject the private interest in property to the burden of paying the expense to keep such property free from conditions menacing the public health. Such an imposition of the expense for abating a nuisance on the land where it exists and making it' a lien on all the interest therein, is proper within the police power and invades no constitutional rights of the owners. It is considered that the statute is valid and that the expense incurred is a lien on all the private interest in the land. •
By the Court. — The judgment appealed from is reversed, and the cause remanded with direction to award judgment in accordance with this opinion.
