187 A.D. 189 | N.Y. App. Div. | 1919
Judgment affirmed, with costs, on the opinion of Gavegan, J., at Special Term. (Reported in 101 Mise. Rep. 211.)
Present — Dowling, Laughlin, Smith, Page and Shearn, JJ.
The following is the opinion of the Special Term:
This is an action to review a decision of the Industrial Commission of the Labor Department, made following a hearing upon a verified appeal from certain orders issued by said Commission against plaintiff’s property. Its institution is expressly authorized under sections 52a and 52b of the Labor Law.
The plaintiff is the owner of a building at 71-73 Nassau street, in the borough of Manhattan, city of New York, and the defendants compose the State Industrial Commission of the State of New York.
Stated as briefly as is consistent with clearness, the facts are as follows: The property, known as the Cockcroft Building, is located on a lot 100 feet by 50 feet, at the northwest comer of Nassau and John streets, one of the busiest comers on two of the busiest thoroughfares in lower New York. It is a sixteen-story stmcture tenanted largely by manufacturing jewelers, with an aggregate occupancy of over 600 persons, including both sexes, of whom nearly 400 were engaged in factory work. It is equipped with one interior stairway reaching from the ground to the roof inclosed on three sides only with the fourth side open to the main corridor which is separated from the working rooms on each floor by non-fireproof partitions. Directly alongside this stairway, in one fireproof but not smokeproof shaft, are the three elevators of the building, which, it appears, owing to machinery troubles, sometimes fail to operate. Leading down from the- top of the building to the roof of its first floor extended, is the only outside fire escape and it is reached from the same common corridor as the stairs and elevators. This fire escape is sub-standard, without any “ get-away ” at its foot other than through windows. All floors, excepting the seventh, are subdivided into numerous large and small rooms occupied mostly for jewelry manufacturing and allied industries. In this work are used motor driven machines ranging from small drills to rolling machines, having a maximum weight of 400 pounds on a floor base two feet square. The building was constructed under the classification of “ office building,” with typical floors to sustain a floor load of only 75 pounds per square foot. In the manufacturing processes alcohol and other highly inflammable substances are used, but in small quantities.
These were the conditions obtaining when the defendants
Plaintiff obtained a hearing before the Commission at which he contended that these orders were unreasonable and asked that they be rescinded or modified. Defendants consented to a modification of the orders which plaintiff, however, declined to accept. Refusing to comply with the original orders, plaintiff then availed himself of the right of action provided for under the statute.
Plaintiff contends that because of the expenditure involved, together with the loss of income from the building consequent upon the taking of space from the offices of his tenants, said orders are unreasonable and confiscatory and, therefore, violate provisions of the Constitution of the United States.
The cost of carrying out the orders in accordance with the original plan is estimated at $38,151, and under the so-called variation plan, $20,307. The gross annual income from the building is $110,000, and the total maintenance cost is $101,355.66, leaving a net income of $8,664.34. The property has a first mortgage of $810,000, and a second mortgage of $50,000, totaling an annual interest charge of $43,500. The building is valued at $409,293, and the plot at $707,420, making a valuation of $1,116,713 for the entire property.
The question of law involved is, whether said section 79b of the Labor Law is unconstitutional. The case also presents
The statute assailed must stand or fall under the police powers of the State. That which was legal before its enactment has become illegal and only the exercise of the police powers of the State can justify such a change. In order to stand it must be shown that the Legislature had in mind the protection of lives and also that it had sufficient ground for the exercise of its inherent police powers to bring, about that protection. This is all made to appear in the history of the “ exit ” statutes themselves, which is a part of the record in the case.
Immediately after the Triangle Waist Company fire, which occurred on March 25, 1911, resulting in the loss of 146 human lives, the Legislature created a Commission to investigate the “ existing conditions under which manufacture is carried on, * * * including * * * matters affecting the health and safety of operatives as well as the security and best interests of the public.”
This Commission devoted two years of intelligent and conscientious labor to the subject, carrying on extensive investigations and taking a great volume of expert testimony, including testimony on the subject of exits from factories, of which this court may take judicial notice. (People v. Charles Schweinler Press, 214 N. Y. 395.) The resulting disclosure of conditions existing in the factories of this State brought forth a popular demand for remedial legislation. Aided by the comprehensive report of its Commission, the Legislature, basing its conclusions on investigation and necessity, forthwith enacted the following measures: (1) Section 79b of the Labor Law, which establishes the minimum requirements of safety in all factory buildings in this State erected prior to October 1, 1913; (2) section 94 of the same law,
It is true that these provisions constitute a forward step in remedial legislation, quite in advance of anything heretofore undertaken by the Legislature in the exercise of its police powers. It is also true that in many instances, clearly so in the case at bar, compliance with these provisions may entail hardship upon the owners of buildings which at the time of their erection fully complied with all existing provisions of law. Hardship, however, does not mean confiscation, and unless it results from the unreasonable exercise of arbitrary power on the part of the Legislature, no degree of hardship can justify the court in nullifying legislative enactments embodying the will of the people, since it is the primary duty of the Legislature to protect the common interests of the whole people, even at the expense of personal or local interests. The mere fact that the law cannot be enforced without causing expense to the citizen who comes within its provisions, furnishes no constitutional obstacle to such enforcement. (Health Department v. Rector, etc., 145 N. Y. 32.) That the police powers of the State include everything essential to the public safety, justifying the destruction or abatement of public nuisances, even to the demolition of buildings in the path of conflagration, has long been settled law. The fact that the exercise of the power may disturb the enjoyment of individual rights without compensation for such disturbances does not make laws and regulations of a public nature unconstitutional, for they do not appropriate property for public use, but simply regulate its use and enjoyment by the owner. (Health Department v. Rector, etc., supra) If the extent of the injury which would
Merely because it is a step in advance, section 79b of the Labor Law cannot be said to be plainly and palpably in violation of the Constitution. It is rather one of those amendments to the structure of the law now being made with increasing frequency by a Legislature which recognizes the trend of modem thought with respect to social justice. When the Legislature created the Factory Investigating Commission it sought light upon “ matters affecting the health and safety of operatives as well as the security and best interests of the public.” It seems obvious, particularly at this crucial time in the affairs of the nation, that “ the health and safety of operatives ” are identical with “ the security and best interests of the public.” Moreover, in its application to this case the “ safety of operatives ” necessarily includes the safety of all members of the community who have occasion to go into the building as well as of the factory operatives and other persons who are employed therein.
Some of the cases cited by plaintiff in my opinion sustain the law he impugns. Quoted fragments of opinion therefrom are either misleading when detached from their context or unnecessary to the decision reached. Included in this class are the following: Lawton v. Steele (152 U. S. 133); Health Department v. Rector, etc. (supra); Atchison, Topeka, etc., Railroad v. Matthews (174 U. S. 96); Tenement House Department v. Moeschen (supra); Coe v. Schultz (47 Barb. 64); Ride-out v. Knox (148 Mass. 368).
The other decisions relied on by plaintiff involve facts and present questions which are foreign to the present inquiry. They are so lacking in any basis of relevant inference as to be unavailable even for purposes of analogy. They deal with statutes which, under the guise of legislative police power, aim to deprive persons of their property or business without due process of law by declaring vested interests therein obnoxious to the public; or with statutes assumed to be for
Leaving his authorities and coming now to the plaintiff’s argument it will be seen that it is based chiefly on those familiar grounds commonly availed of when the constitutionality of a remedial statute is the object of attack, namely, that the provisions of the Exit Law under consideration
The same considerations of unsubstantiality apply to the plaintiff’s contention that, because he complied with all laws at the time of the construction of the building, the new Exit Law threatens a destruction of his vested property rights. If such a contention were to prevail it would make an end of all remedial legislation. Examples constantly occur, as in the case of our Tenement House Law, where individual owners are compelled to suffer similar hardships in order that a rule for the common good shall be observed. (Health Department v. Rector, etc., supra; Tenement House Department v. Moeschen, supra; Matter of City of Brooklyn, 87 Hun, 54; Coe v. Schultz, supra.)
For final objection to the constitutionality of the statute in question the plaintiff urges that the definitions of the terms “ labor ” and “ factory-building ” therein
The ingenious illustration offered by the plaintiff to show that, under the act, even two employees engaged in manufacturing would make the place of their employment a “ factory building,” while two partners doing the same work would not, is not convincing; the latter would not create fire hazard to the same extent as the former. It is inherent in human nature that, assuming the instinct of self-preservation to be equally strong in both, the employee with only his wage at stake, will create more fire hazard than the employer with his property and business at stake.
*■ On the question of arbitrary classification of buildings, there is no analogy to be found in the custom of fire insurance companies, under which different premium rates are charged for insuring different buildings, according to risk classification, since it ignores the distinction between loss of property and loss of life. Further classification of buildings is not required by the facts where it appears that the danger of panic as distinguished from fire itself is common to all buildings whose type of occupancy is that of laborers. I reach the conclusion that the statute is a valid exercise of the police power of the State and, therefore, constitutional.
The law being upheld as constitutional it becomes necessary to consider the second proposition, as to whether the orders involved are valid and reasonable. Here I may state that the question of the orders would have to abide by the decision on the law’s constitutionality,' and I should decline to review the discretion of the Commission, in the absence of proof showing bad faith, as a matter outside of the province of the court, were it not for the express provisions of the statute which call for such review. (Louisville & Nashville Railroad v. Kentucky, 161 U. S. 701.)
The evidence shows that the building in question is a
Bearing in mind the purpose of the Legislature , in enacting the “ exit ” law, the question of the reasonableness of the orders involved must be determined, not alone by standards of dollars and cents, but as well by the broader standard of humanity, in the light of its weaknesses and in the light of past experience and catastrophes, as disclosed by the evidence in the case.
It cannot be too often emphasized that the law is primarily an “ exit ” statute rather than merely a fire statute. The clause “ adequate and safe means of escape for the occupants in case of fire,” must be so construed as to give practical effect to the legislative intent which was to safeguard the lives of factory operatives. The words “ in case of fire ” must be so interpreted as to include all danger from fire, and it is notorious that danger from fire includes panic. Panic may result from causes not confined to a factory building itself nor affected by its fireproof character. It may be caused by smoke alone, or by fire in a building adjoining or in the immediate neighborhood, or by a conflagration, or by hostile attack in time of war from land, sea or air, or by earthquake, or even by a false alarm.
The reasonableness of the orders, therefore, depends directly on the answer to the question, “ Is the building safe from the danger of panic? ” As already pointed out, it is a sixteen-story structure, 193 feet in height, used for factory purposes, with an occupancy of over 600 persons, of whom nearly 400 are engaged in factory work. Its sole interior stairway used
It would be difficult to find a more vivid presentation of undisputed facts, all pointing to the same conclusion, than is contained in the record of this case; and that conclusion to my mind is, that the building is unsafe. So far from plaintiff’s establishing the aflirmative of that proposition by a fair preponderance of the evidence, it seems to me that its negative is established by the testimony of the defense alone.
The disputed questions on the other hand are for the most part matters of opinion, from the testimony of expert witnesses on either side, the plaintiff’s experts holding that the building is reasonably safe for occupants in case of fire, and the defendants’ experts maintaining that it is unsafe, but that compliance with defendants’ orders would make it reasonably safe.
Defendants’ experts are public officers, burdened with the responsibility of carrying out the public functions intrusted to them, and the fact that they are in the employ of the State should not detract from the weight of their testimony, as compared with that of experts testifying under the retainer of the plaintiff. Here again the distinction between loss of life and loss of property must not be overlooked and I get the distinct impression that the opinions of the plaintiff’s expert witnesses would be more valuable in a question involving fire insurance than they are in a question involving safety insurance. On the other hand, the opinions of the defendants’ witnesses are corroborated by my own convictions as to the safety of the building, after listening to all the evidence in the case.
Much stress is laid by the plaintiff on the fact that the building is fireproof, that only four fires have occurred therein since its erection, and that these did not spread, although three of them occurred either on holidays or during hours when the building was unoccupied. This argument, however, does not take into account the danger which might have arisen from panic, as bearing upon the question of adequate exits, had .these fires occurred during working hours when the building was filled with employees.
The plaintiff having failed to prove to the satisfaction of the court that the building is reasonably safe to be used for manufacturing purposes, it remains to consider the orders themselves to ascertain whether compliance with their terms would make the' building safe. This refers to the variation plan of the orders, as I have already pointed out that any discussion of the reasonableness of the original orders would be purely academic.
The structural changes called for under the variation plan consist in (1) inclosing the, existing interior stairway with fire-resisting material; (2) construction of an exterior screened stairway or fire escape on the north side of the building running from the roof to the second floor with described openings thereto above, and therefrom below, the second floor; (3) the construction of a fire wall throughout the building. The purpose of the last provision is to avoid the legal objection of proximity between the exits provided for in the first and second provisions, which seems to me reasonable because necessary for even a minimum compliance with the terms of the law. All three variations from the original orders are granted only during the period that " present conditions of structure and occupancy are maintained.” One of these conditions is " an occupancy of about 504 persons above the ground floor,” which I construe in this particular instance to mean factory occupancy. As it is obvious that the danger to life from panic would increase with the number of operatives in the building, some limitation must, of course, "be placed thereon, and the one adopted by the defendants seems emi
The estimated cost of these structural changes is $20,307, an amount $18,000 less than would have been the cost of compliance with the requirements of the original orders. It appears moreover that this cost would have been at least ten per cent less had the work been done at the time the orders were issued.
The annual rental damage, which is largely speculative, will amount approximately to only $600 under the variation plan, as against $11,000 under the original plan.
As to the alleged rental damage from loss of northern light, consequent upon the installation of the exterior screened stairway, I cannot regard it as material in the absence of a right of easement thereto in the plaintiff.
In questions involving the safety of the public, arguments based on loss and inconvenience to the individual are always of doubtful force. On the basis of figures recited in the Statement of facts it appears that the annual net rental from the building is $8,664.34, representing, as plaintiff claims, a return of only one and forty-six one-hundredths per cent on his original investment in the property, and he argues therefrom that the orders are oppressive and unreasonable because they will cause a still further reduction in an income already sadly insufficient. It is true that these figures make a poor showing, but it will be seen on reflection that the small proportion of plaintiff’s income to his claimed original investment in the property must be disregarded, since it cannot be said to have been influenced in the remotest degree by the orders under discussion. A decline in real estate values is no reason for exempting a building from the expense necessary to make it safe from fire. If such a rule were adopted it would be impossible for the city to enforce any building laws involving the expenditure of money, excepting in times when real estate values were high. The percentage of actual reduction in existent net income caused by compliance with these orders might be material, but whether that income were twenty per cent or one per cent, or even a loss, could not affect the
Finally, the plaintiff would have it appear that, having complied with all provisions of the law existing at the time the structure was built, and the State having thereafter declared said provisions to be inadequate, he is now in effect being penalized for mistakes of oversight which are justly chargeable to the State itself. This contention is groundless and inept, for the evidence shows that the structure was built to be used as an office building, and that plaintiff not only diverted it from the use for which it was originally intended, but renewed leases to most of the manufacturers therein, even after the issuance of the orders complained of.
Moreover, the State can enact remedial laws only after it has been demonstrated that there are evils to be remedied. Actual experience, even human sacrifice, is often required in order to arrest the attention of the public and shock it into a realization of the necessity for remedial laws.
Experience in the matter of fire danger shows that so-called fireproof structures sometimes burn; that automatic fire alarms sometimes fail to alarm; that inside fire apparatus sometimes proves ineffective; that smoke from inflammable contents of fireproof buildings causes suffocation and death; that elevators sometimes refuse to work; that outside fire escapes are more serviceable as a means of entrance for firemen than as a means of escape for occupants; that the protection of the best fire department in the world is sometimes inadequate, and that persons of the highest intelligence often lose their presence of mind and become helpless victims of unreasoning panic.
All the above-mentioned precautions are good but they do not go far enough. The people of the State of New York
I am of the opinion that the orders complained of are reasonable in their modified form and necessary to carry out the spirit of the law in this particular case. This determination, coupled with the conclusion that the law is constitutional, requires a judgment for the defendants, dismissing the complaint, with costs.
Consol. Laws, chap. 31 (Laws of 1909, chap. 36), §§ 52a, 52b, as added by Laws of 1915, chap. 674.— [Rep.
Added by Laws of 1913, chap. 461, as amd. by Laws of 1914, chaps. 182, 366, and Laws of 1915, chap. 719.— [Rep.
See U. S. Const, art. 1, § 10, subd. 1; Id. 14th Amendt. § 1. See, also, State Const, art. 1, § 6.— [Rep.
See Laws of 1911, chap. 561.— [Rep.
Axnd. by Laws of 1915, chap. 653 — [Rep.
Penal Law, § 1275, as amd. by Laws of 1913, chap. 349.— [Rep.
See Labor Law, § 2, as amd. by Laws of 1913, chap. 529; Laws of 1914, chap. 512, and Laws of 1915, chap. 650. Since amd. by Laws of 1917, chap. 694.— [Rep.