106 N.E. 122 | NY | 1914
Lead Opinion
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *410 The defendant has been convicted of a misdemeanor for violating an order made by the fire commissioner of the city of New York, which required him (the defendant) to install "a separate and distinct system of automatic sprinklers" upon his premises, used for manufacturing purposes, at Nos. 30-34 West Twenty-sixth street, borough of Manhattan. The order was made under section 775, title 3, chapter 15 of the city charter (L. 1901, ch. 466). Section 775 was added to the charter by an amendment contained in chapter 899, Laws of 1911. The amendment, among other things, empowered the fire commissioner to
(3) Require, in writing, the installation as prescribed by anylaw or ordinance in any building, structure or inclosure of automatic or other fire alarm system or fire-extinguishing *411 equipment, and the maintenance and repair thereof, or the construction, as prescribed by any law or ordinance, of adequate and safe means of exit.
First. The defendant's main defense is that there is no lawor ordinance requiring the installation in any building of automatic sprinklers as called for by the order.
Section 762, title 3, chapter 15 of the charter, as it was in force in 1897 (L. 1897, ch. 378), and as it was continued in force, in the way that will be explained, by the present charter (L. 1901, ch. 466), provided that the owners and proprietors of all manufactories, hotels, tenement houses and other buildings particularly mentioned "shall provide such means of communicating alarms of fire, accident or danger, to the police and fire departments, respectively, as the fire commissioner or police board may direct, and shall also provide such fire hose, fire extinguishers, buckets, axes, fire hooks, fire doors and othermeans of preventing and extinguishing fires as said fire commissioner may direct." Section 773 of the same title makes it a misdemeanor not to obey any such direction.
The defendant, applying to these provisions the doctrine ofejusdem generis, argues that the words italicized, namely, "other means of preventing and extinguishing fires," include only things of the same kind as fire hose, fire extinguishers, buckets, axes, fire hooks and fire doors. That seems a narrow interpretation of the statute.
It is said in Halsbury's Laws of England (Vol. 27, p. 145), "As a rule, general words following specific words are limited to things ejusdem generis with those before enumerated, although this, as a rule of construction, must be controlled by another equally general rule, that statutes ought, like wills or other documents, to be construed so as to carry out the objects sought to be accomplished by them."
In Schouler on Wills (3rd ed. § 514) it is said that the rule of ejusdem generis "is after all but a rule of presumption as we should bear carefully in mind * * *. *412 In fine, courts at the present day decline to be hampered by any rule which would sacrifice the testator's true meaning out of undue regard for the association of words of limited scope with broad generic terms."
The court said in Given v. Hilton (
In Matter of Robinson (
The cases on which the defendant relies are mostly those which involved bequests of property or penal laws enumerating crimes, or were cases where the particular things mentioned were the essential features of the subject-matter before the court. In a bequest, it is his property, and the objects of his bounty, which the donor has in mind, and in penal laws, the principal thing is the definition of crime. But in section 762 of the New York charter, the legislature was not dealing with special reference to the particular articles therein enumerated, viz., fire hose, fire extinguishers, buckets, axes, fire hooks and fire doors. The main object in view was the prevention and extinguishment of fires. That is, perhaps, sufficient to distinguish this case from those cited by the defendant, and to rebut the presumption that the general words of the statute are limited by the particular words preceding them. *413
But the case is rather within the doctrine of Matter ofRobinson (supra). The words of section 762, which speak of certain kinds of fire extinguishing apparatus, are not exhaustive, and the comprehensive words "other means of preventing and extinguishing fires" which follow, should be held to include other means of the same general character and purpose as those particularly enumerated. (Ib.) Now, automatic sprinklers, though they may cost a little more than the articles specifically mentioned in the section, are of the same generalcharacter, and are intended for the same purpose as those articles.
This liberal construction has been placed on section 762 in every case where it has come before the courts. It was held by the Appellate Term of the Supreme Court in New York (Lantry v.Hoffman,
The question is asked, why, if section 762 in the charter already included automatic sprinklers, was it deemed necessary to mention them particularly in section 775 of chapter 899, Laws of 1911? A consideration of the act will show that the legislature intended to confirm the construction which the court in the cases cited had theretofore put on section 762, and authorized the city to extend the requirements of the section to all buildings.
The act of 1911 added eleven sections (774-778c) to title 3, chapter 15 of the charter. In these sections the legislature brought together in one act many provisions of the *414 charter relating to the prevention of fire, couching them in general language, and, at times, extending their application. For example, section 762 of the charter (L. 1897, ch. 378), required the owners and proprietors of some fifteen different kinds of buildings mentioned to "provide such means of communicating alarms of fire, accident or danger, to the police and fire departments, respectively, as the fire commissioner or police board may direct." Subdivision 3, section 775, added by the act of 1911, empowered the fire commissioner to require "the installation, as prescribed by any law or ordinance, in any building, structure or enclosure of automatic or other fire-alarm system." The only effect of this provision in subdivision 3 was to empower the city to require that all buildings, structures and inclosures, not merely those mentioned in section 762, be provided with fire alarm systems. Space will not admit of further comparisons, but it will be found that other subdivisions of section 775 empower the city to extend pre-existing requirements of the charter, which were limited the same as those relating to fire alarm systems, to all buildings, structures and inclosures. I believe it was the intention of the legislature, in like manner, to authorize the extension of the provisions of section 762, relating to the installation of fire extinguishing apparatus, as those provisions had been interpreted by the court, to all buildings, structures and inclosures.
This construction of chapter 899, Laws of 1911, is supported by other provisions found therein. The act amended the heading of title 3 of chapter 15 (in a manner not now important), and for some reason expressly repeated the headings without including the text of the sections (760-773) in title 3, which preceded the eleven sections added. This shows that the legislature had those preceding sections in mind, and it must be held that it was aware of and approved the construction which the court had placed upon section 762. And when, in section *415 775, the legislature empowered the fire commissioner to require the installation of automatic sprinklers, "as prescribed by any law or ordinance," it knew that a law to that effect, according to the construction placed thereon by the courts, was already in force.
Second. The further argument of the defendant is that section 773 of the charter, the section relied upon by the prosecution to make the violation of an order given by the fire commissioner a misdemeanor, does not apply to the case. Section 773 prescribes punishment only for offenses under title 3, chapter 15.
The text of sections 762 and 773 is found only in the old charter of 1897 (Ch. 378). It was incorporated in the new charter of 1901 (Ch. 466) by a provision (section 1620, sub. 3) that such sections, with some others of the old charter, were continued in full force and effect until the board of aldermen should pass ordinances regulating the matters provided for in such sections, and that "upon the passing of any such ordinances regulating the matters provided for in any one of the said sections respectively, such section shall cease to have any force or effect, and the same is and shall be repealed."
After the passage of chapter 899, Laws of 1911, and in January, 1912, the board of aldermen repealed, or undertook to repeal, section 762 and enact in place thereof an ordinance in the same words as that section, except that it regulated in a different way the occupation of the aisles and passageways in places of public amusement, by persons standing therein. The provisions of section 762, so far as they related to the orders of the fire commissioner respecting fire extinguishing apparatus, remained unchanged in the ordinance. The position of the defendant is that by the action of the board of aldermen the requirement respecting such apparatus was taken out of title 3 and consequently that section (773), which is limited to cases arising under the title, is no longer applicable. *416
However that may be, the defendant is not charged with violating section 762 or any ordinance superseding it. He is charged with violating an order of the fire commissioner made under section 775. Section 775 is in title 3, and the case, therefore, falls precisely within the words of section 773. It is a matter of no importance whether the order given under section 775 was based on a section of title 3, or whether it was based on an ordinance of the board of aldermen. It was in either case an order supported by "law or ordinance." The error into which the defendant falls is that he regards himself as charged with violating an ordinance, whereas, he is in fact charged with violating an order of the fire commissioner.
Third. The defendant also argues that the order of the fire commissioner is invalid because the power exercised by him under the charter is legislative in its nature, and legislative power cannot be delegated. The case falls within the line of decisions which hold that authority to determine what ought to be done to protect the public welfare in particular cases as necessity requires, may properly be reposed in public boards and officers. Boards of health and health officers are constituted on that theory, and on the same theory licenses to carry on different kinds of business are granted by designated boards and officers. There are many statutes whereby legislative power is thus delegated and they have never been questioned. The presumption is that such boards and officers will discharge their duties honestly and in accordance with law. (People ex rel. Lieberman
v. Vandecarr,
Fourth. Where, however, no general rules are enacted, but a subordinate officer is empowered to investigate and determine the fact whether in any particular instance further fire protection is required, the reasonableness of the determination of such officer is open to review by the courts, and the person aggrieved is entitled to show that *417
the order made was unreasonable, unnecessary and oppressive. (Fire Department of N.Y. v. Gilmour,
Fifth. The conclusion having been reached that the legislature had power under the Constitution to confer authority upon the fire commissioner to make an order requiring the installation of automatic sprinklers, the further question whether in this particular case the order was reasonable or not was a question of fact. On the trial of the action many witnesses were sworn by both parties as to the condition of the defendant's premises and the reasonableness of the fire commissioner's order that automatic sprinklers be installed thereon. The question was decided against the defendant by the Court of Special Sessions, and that decision has been unanimously affirmed by the Appellate Division. It is not, therefore, subject to review in this court.
I recommend that the judgment of conviction appealed from be affirmed.
Dissenting Opinion
The authority of the legislature in the exercise of the police power to require owners of buildings to make any improvement essential to the protection of the lives of individuals employed therein is well established, and the wisdom of such legislation cannot be seriously questioned.
In this case we are concerned only with the provisions of the act of the legislature found in the charter of the *418 city of New York, and the ordinances of the city adopted pursuant to such legislation.
The order in this proceeding, for a violation of which defendant has been convicted of a penal offense, purported to have been made under subdivision 3 of section 775 of the charter as amended by chapter 899, Laws of 1911, which empowered the fire commissioner to:
"(3) Require, in writing, the installation, as prescribed byany law or ordinance, in any building, structure or enclosure of automatic or other fire alarm system or fire extinguishing equipment and the maintenance and repair thereof, or the construction, as prescribed by any law or ordinance, of adequate and safe means of exit."
The authority thus conferred upon the fire commissioner by the section quoted was not unlimited in scope, but merely authorized him to require compliance by the owner of the building with the terms of any law or ordinance, which provided:
(1) The installation of a fire alarm system;
(2) A fire extinguishing equipment and the maintenance and repair thereof;
(3) The construction as prescribed by any law or ordinance of adequate and safe means of exit.
The order of the commissioner required defendant to install an automatic sprinkler system in his building.
The authority of the commissioner must be justified, if at all, upon the existence of a law or ordinance authorizing him to require the installation of a fire extinguishing equipment.
An examination of the charter of the city of New York discloses that section 762 (Laws of 1897, chapter 378) was entitled "Lights, precautions against fire and use of aisles in places of amusement." The section provided first with reference to protection by globes of glass covering up lights, and then followed:
"The owners and proprietors of all manufactories, hotels, tenement houses, apartment houses, office buildings, *419 boarding and lodging houses, warehouses, stores and offices, theatres and music halls * * * hospitals and asylums, and of the public schools and other public buildings, churches and other places where large numbers of persons are congregated for purposes of worship, instruction or amusement shall provide such means of communicating alarms of fire, accident or danger, to the police and fire departments, respectively, as the fire commissioner or police board may direct, and shall also providesuch fire hose, fire extinguishers, buckets, axes, fire hooks,fire doors and other means of preventing and extinguishing firesas said fire commissioner may direct."
A willful neglect or refusal to comply with the provisions of the sections quoted was by section 773 of the charter made a misdemeanor.
Immediately after the enactment of subdivision 3 of section 775, quoted above, the board of aldermen of the city of New York enacted an ordinance entitled "An ordinance to regulate the use of aisles and passageways in places of amusements (changing section 762 of the Greater New York Charter)." Section 1 provided: "Section 762 of the Greater New York Charter is herebyrepealed and the following ordinance enacted in lieu thereof." Then follow the provisions of section 762 with additions thereto having reference only to places of amusement.
It is unnecessary to devote time to a discussion of the lack of power in the board of aldermen of the city of New York to repeal an act of the legislature of the state. For the purposes of this appeal we may consider section 762 of the charter and the ordinances referred to in full force and effect and by the application to them of well-established principles of law the conclusion follows that the law or ordinances did not empower the fire commissioner to require the installation of an automatic fire sprinkler system in the premises of defendant. *420
An examination of section 762 and ordinances discloses the persons against whom the same is directed, namely, the owners and proprietors of the buildings specified in said section and ordinances. It is argued, and was so determined by the Appellate Division, that the words "and other means of preventing and extinguishing fires as said fire commissioner may direct" were sufficient to justify the order made by the fire commissioner in this case. That conclusion seems to me inconsistent with the decision of Lantry v. Mede (
A rule common to the construction of statutes, that where two or more words of analogous meaning are coupled together they are presumed to be used in their cognate sense, express the same relations, and give color and expression to each other, must be applied to the statute and ordinance under consideration; therefore, the language quoted which is general in its terms must be limited by the more specific language preceding the same and with which it is associated, and held only to comprehend "means" of a character such as the words preceding specified.
To give to the section and ordinances the construction claimed for, would authorize the fire commissioner to require the installation of any "means" specified by him for extinguishing fires in the buildings specified in the section, including churches, stores, offices, boarding houses, lodging houses, and all other buildings referred to in the section, and would confer upon the fire commissioner unlimited power as to the character of the means for preventing or extinguishing fires. He might, in his discretion, require an automatic sprinkling system in every church, boarding house and building described in the section. He might require that certain of the churches and buildings specified should maintain a fire steamer for the purpose of extinguishing fires if the language used is to be given the broad construction claimed for it. He *421
might to-day require the installation of an automatic sprinkler system at large expense and one year later condemn it and order an improved system installed. The words "and other means of preventing and extinguishing fires as said fire commissioner may direct" must be read in connection with the words preceding, "fire hose, fire extinguishers, buckets, axes, fire hooks," etc., and held to be limited to such means as the specified means preceding the language used in the section imply, (Lewis' Sutherland's St. Const. [2d ed.] vol. 2, p. 814; Burks v.Bosso,
The order and judgment should be reversed.
WERNER, CHASE and MILLER, JJ., concur with CUDDEBACK, J.; WILLARD BARTLETT, Ch. J., and COLLIN, J., concur with HOGAN, J.
Judgment of conviction affirmed.