246 A.D. 109 | N.Y. App. Div. | 1936
The petition for an alternative order of mandamus alleges the following facts:
The defendants filed objections in point of law that the petition did not state facts sufficient to entitle the petitioner to the relief asked or to any relief by mandamus. These objections were overruled and dismissed, an alternative order granted and the defendants directed to make return thereto.
The petition also sets forth an ordinance of the city and an amendment thereto relating to the storage of gasoline within the city limits. The original ordinance was adopted on August 16, 1929. Section 1 thereof provides that no person, firm or corporation shall keep or store within the fire limits of the city gasoline in greater quantity than five gallons, unless in properly constructed underground tanks-installed in a manner thereinafter set forth. Sectiofi 2 of the ordinance relates to storage outside of the fire limits and states that not to exceed five gallons may be kept within any building in a tightly closed container, and outside building storage may be had in properly constructed tanks of given capacities located at certain given distances from any building. This section also contained regulations as to the manner of installation of such tanks. Section 5 of the ordinance reads in part as follows:
“ § 5. Permit. Any person, firm or corporation now handling or storing or proposing in the future to handle or store inflammable volatiles in excess of the quantity of five gallons, shall make written*111 application to the Chief of the Fire Department (or other designated official) and the Chief Engineer of Fire Department shall forthwith make an inspection of the premises used or proposed to be used, as the case may be, for such sale or storage, and the means of distribution, and if the conditions, surroundings and arrangements are such that the intent of this ordinance can be observed, then he shall issue a permit that such sale, storage, or distribution may be conducted and before any new installation is covered from sight, a notification in writing shall be given the Chief of the Fire Department, who shall, within forty-eight hours after the receipt of such notification, inspect the installation and give his written approval or disapproval.”
On June 29, 1934, the common council enacted that section 5 be amended to read in part as follows: “ That no written application made to the Chief Engineer of the Fire Department for the installation of a tank or tanks for the storage of inflammable volatiles, containing five hundred gallons or more, shall be approved by him until such application or applications shall have been presented to the Common Council for its consideration; furthermore, that no tank or tanks, shall be erected or installed, until such time as the Underwriter’s approval has been obtained and its label attached hereto.”
This amendment may only be included in section 5 as an addition thereof as it does not eliminate or change any portion of the existing section.
Section 2 of the ordinance of 1929 does not specifically forbid outside storage of gasoline without the fire limits. Rather, it sets forth the conditions under which it may be kept. Nevertheless, the fair intendment of these two sections, 1 and 2, coupled with section 5 requiring the permits, was to prohibit such storage except under the required conditions and with the necessary permits. As originally enacted, section 5 required all persons proposing to store gasoline in excess of the quantity of five gallons to make written application to the chief engineer of the fire department who was to inspect the premises. If he found the conditions, surroundings and arrangements to be such that the intent of the ordinance could be observed, then he was directed to issue a permit that such storage might be conducted. The amendment to section 5 provided that no such written application made to the chief engineer of the fire department for the installation of tanks for the storage of inflammable volatiles, containing 500 gallons or more, should be approved by such official, until such application should have been presented to the common council for its consideration. Thus the council reserved the right to approve or disapprove applications for permits to store in quantities of 500 gallons or more. After it approved of such application then the chief engineer of the fire department might
The order should be reversed, with ten dollars costs, and the objections sustained and the petition dismissed, with fifty dollars costs.
Rhodes and McNamee, JJ., concur; Hill, P. J., and Heffernan, J., dissent.
Order reversed on the law, with ten dollars costs and disbursements, and objections sustained and petition dismissed, with fifty dollars costs.