144 N.Y.S. 707 | N.Y. App. Div. | 1913
The information charges that on the 4th day of April, 1913, the defendant, a domestic corporation, was in possession and had the management and control of the premises extending from First avenue between Thirty-eighth and Fortieth streets easterly to the East river, and of stationary engines, furnaces and boilers which had been installed in the building on said premises and were used by defendant, and willfully violated said section 181 of the Sanitary Code — the provisions of which are set forth in the information in hæc verba — by causing, suffering and allowing “ dense smoke to be discharged from the said ” building, engine and premises.
The demurrer was upon the grounds, among others, that the information did not state facts sufficient to constitute a crime, and that the provisions of the Sanitary Code upon which the prosecution is based are unconstitutional and void; and that is the theory on which the demurrer was allowed.
The provisions of the Sanitary Code in question are as follows: “Sec. 181. No person shall cause, suffer or allow dense smoke to be discharged from any building, vessel, stationary or locomotive engine or motor vehicle, place or premises within The City of New York, or upon the waters adjacent thereto, within the jurisdiction of said City. All persons participating in any violation of this provision, either as proprietors, owners, tenants, managers, superintendents, captains, engineers, firemen, motor vehicle operators or otherwise, shall be severally liable therefor.”
In deciding that the section quoted was unconstitutional, I am of opinion that the learned trial court placed an unduly narrow and literal construction on its provisions, holding, in
It may well be that the discharge of dense smoke, even in his metropolis, would not constitute such a menace to public health or comfort, or to property, as to sustain the prohibition thereof under general authority declared by the Legislature, or even under express specific authority, which would be equivaent to action by the Legislature itself, if that would either render it impossible to use private property for business purposes, otherwise lawful, or would unreasonably burden the owners of such property, in so conforming it and the use thereof as to prevent the discharge of such smoke, with expense wholly out of proportion to any possible public benefit. The question here is, however, whether it is competent for the court to assume on judicial notice that these consequences would follow compliance with this section of the Sanitary Code. At common law, smoke was neither included in the classification of public nuisances, nor was it embraced in the enumerated causes of such nuisances (2 Dillon Mun. Corp. [5th ed.] § 694); but courts of chancery and equity have always exercised jurisdiction to grant relief from unnecessary annoyance, discomfort or injury caused by dense smoke, from which soot usually falls, on the ground that in such cases it constitutes a private nuisance. (Bowers v. City of Indianapolis, 169 Ind. 105.) Since the early development of the common law, conditions, with respect to the kinds and uses of fuel, have so materially changed that its ancient doctrines on the subject now before the court have long since ceased to be adequate. Now fuel is used, not merely to generate heat, but to generate steam for its direct or indirect application- for both
No question has been raised with respect to the sufficiency of
“ The board of aldermen shall have power to make, establish, alter, modify, amend and repeal all ordinances, rules, and police, health, park, fire and building regulations, not contrary to the laws of the State, or the United States, as they may deem necessary to carry into effect the powers conferred upon The City of New York by this act, or by any other law of the State, or by grant; and such as they may deem necessary and proper for the good government, order and protection of persons and property, and for the preservation of the public health, peace and prosperity of said city and its inhabitants, except so far as power is conferred by this act upon presidents of boroughs, the police, health, park and fire departments respectively to make rules for the government of the persons employed in and by said departments. Nothing in this section contained shall be construed to impair the powers conferred by this act upon the department • of education; and except so far as the legislative power respecting the health, police, park, fire and building departments shall be conferred upon said departments respectively by the provisions of this act, and except that any modification of the existing rules, regulations and ordinances affecting any of the departments and all ordinances to be passed to govern the board of public improvements or any of the departments thereof, must originate with the department concerned, or with said board, and must be adopted or rejected by the board of aldermen without amendment.” (See, also, Laws of 1905, chap. 629, amdg. said § 43.)
The provisions of this section with respect to the authority intended to be conferred on the board of aldermen to enact or approve ordinances affecting public health are not entirely
I am of opinion, therefore, that it is perfectly clear that the court may not take judicial notice that this prohibition against the discharge of smoke is unreasonable and void; and that, if it may not take judicial notice to the contrary, the enactment must be presumed to be valid, at least, until evidence impeaching it, as by showing that it cannot be observed without extinguishing the fires in the furnaces to which it relates, or imposing upon the property owners an unreasonable burden, in comparison with the public benefit, in obtaining other fuel or equipment, is presented. (Health Department v. Rector, etc., supra; Moses v. United States, supra; Bowers v. City of Indianapolis, supra; State v. Tower, supra. See, also, People v. Transit Development Co., 131 App. Div. 183.)
In Bowers v. City of Indianapolis (supra), where an ordinance forbidding the discharge of dense smoke was sustained, the court said: “Itis a well known fact that smoke is carried for long distances, and, mingling with the general cloud of smoke arising from the furnaces of an industrial and thickly populated community, this whole mass of smoke diffuses itself and thoroughly impregnates the atmosphere and hangs as a dark blanket over the city from which soot drops constantly which works its way into stores and dwellings and falls on the faces, hands and clothing of persons who may be on the streets or otherwise exposed to it, and which also injures certain kinds
The learned counsel for the respondent insists that the discharge of any dense smoke, no matter of what color or nature and even if accidentally or only momentarily, is prohibited by this section of the Sanitary Code. These provisions should not be construed literally, especially since that might render them void. The information charges that the violation was willful. Although that is not expressly embraced in the provision in question, yet since a violation is deemed a misdemeanor, the section should not be construed as applicable where the discharge of the smoke is accidental or unavoidable. It is the spirit and intent of the law, rather than its letter, that governs, and, therefore, these provisions should be considered in the light of the purpose for which they were intended and of the authority under which they were enacted. (Riggs v. Palmer, 115 N. Y. 506; People v. Sturgis, supra; Atlantic City v. France, 75 N. J. L. 910; 18 L. R. A. [N. S.] 156.) It is evident that the object of this enactment was the prevention of the discharge of smoke of such a character and in such quantities that it might injuriously affect the public health or comfort, or injure property, and the court would not be warranted in convicting for a violation of this section, excepting on evidence from which an inference to that effect might be drawn. I think that the application of this section was not intended to be limited to cases in which evidence is adduced embracing every element upon which a conviction as for maintaining a public nuisance might have been had at common law, or even under the Penal Law (§ 1530 et seq.), and that it should not be so limited. The section should have a reasonable construction which would preclude a conviction for a mere accidental or occasional momentary discharge of dense smoke, but which would insure the prevention of a continuous discharge or a discharge at intervals of large volumes of smoke, such as is caused by the use of soft coal. I agree with the view expressed by the court
In Harmon v. City of Chicago (110 I11. 400), where the same points as are how presented were urged against the validity of an ordinance prohibiting the discharge of “dense smoke,” the court in construing and sustaining the ordinance said: “Nor will any subtle distinctions be indulged as to what
“ It is but stating what is a matter of common observation, that ‘ dense smoke ’ is caused by the kind of fuel used in furnaces and fire boxes.”
These views were quoted with approval in City of St. Paul v. Haugbro (93 Minn. 59). In St. Louis v. Heitzeberg Packing Co. (supra) an ordinance declaring the discharge of “ dense smoke ” a public nuisance was declared void on the ground that authority to enact it had not been delegated by the Legislature, and stress was laid on the fact that the city depended largely on bituminous coal in the vicinity, as showing the unreasonableness of the ordinance; but in that case it was conceded of record that such emission of smoke could not be prevented by any known device; and the same court later (State v. Tower, supra) sustained a statute in the same language prohibiting the emission of smoke. In the later case the court observed that the evidence showed that the escape of such smoke was preventible, but apparently recognized that without an express provision to that effect it might be shown in defense that it could not be prevented. The court in that case also assumed, without discussing it, that “ dense ” meant thick and opaque. .
If, however, what it was intended to prohibit by this section would constitute a public nuisance, or if it must be limited to cases of that kind in order to sustain it, still it could be upheld even on that theory. It is of no importance that it does not declare dense smoke to be a public nuisance. (Harmon v. City of Chicago, supra, 412.) Pursuant to authority duly delegated the acts have been forbidden, and the Legislature itself has declared the offense to be a misdemeanor. That is quite sufficient. If the section should be construed as applying only to such emissions of smoke as would constitute a public nuisance, as the Supreme Court of Minnesota construed a statute
It follows that the order should be reversed and demurrer disallowed, with leave to withdraw the same and plead over.
McLaughlin, Clarke and Scott, JJ., concurred; Ingraham, P. J., concurred in result.
Order reversed and demurrer disallowed, with leave to defendant to withdraw demurrer and plead over. Order to be settled on notice.