Spielvogel v. Ford

• Decision Date: 11 July 1956
• Citation: 136 N.E.2d 856,154 N.Y.S.2d 889,1 N.Y.2d 558
• Parties: , 136 N.E.2d 856 In the Matter of Paul SPIELVOGEL, Appellant, v. Arthur C. FORD, as Commissioner of the Department of Water Supply, Gas and Electricity of the City of New York, et al., Respondents.
• Court: New York Court of Appeals Court of Appeals

Page 889

154 N.Y.S.2d 889

1 N.Y.2d 558, 136 N.E.2d 856

In the Matter of Paul SPIELVOGEL, Appellant, v. Arthur C. FORD, as Commissioner of the Department of Water Supply, Gas and Electricity of the City of New York, et al., Respondents.

Court of Appeals of New York.

July 11, 1956.

I. Stanley Stein and Herman J. Zawin, New York City, for appellant.

Peter Campbell Brown, corp. Counsel, New York City (Anthony Curreri and Seymour B. Quel, New York City, of counsel), for respondents.

CONWAY, Chief Judge.

This appeal is taken directly to this court from the Supreme Court order pursuant to the provisions of the Civil Practice Act, § 588, subd. 4, upon the ground that the sole question involved is the constitutionality of section B30-16.0 of the Administrative Code of the City of New York, which provides: 'B30-16.0 Suspension or revocation of licenses. Every holder of a license, upon retiring from the electrical business or upon the occurrence of any other cause for the suspension or revocation of such license, shall notify the commissioner in writing of such fact, at the same time enclosing the license certificate The commissioner may, by an order in writing, suspend or revoke any license issued by him after a hearing on notice before the license board and, upon good cause shown, including, among other things, being principally engaged in other business, farming of licenses, failure to file applications for certificates of inspection, contract work by holders of special licenses, fraudulent dealing, misrepresentation or conviction of crime by a competent court.' (Emphasis supplied.)

In 1926, petitioner was licensed as a motion picture operator by respondent commissioner and has had that license continuously from that time until the present, with the exception of the years 1943 and 1944. In 1928, petitioner was licensed as a master electrician by respondent commissioner and has had that license continuously from 1928 to June 17, 1955, with the exception of the years 1943 and 1944. Petitioner admits that, prior to June 17, 1955 (the date of the order of the Commissioner of the Department of Water Supply, Gas and Electricity here sought to be reviewed), the had been employed for three nights a week as a motion picture operator at the Trans-Lux Theatre, from the hours of 6:00 P.M. to 12:00 P.M. He claims, however, that he was engaged as a master electrician during the hours when he was not engaged as a projectionist.

At the hearing held on June 7, 1955, petitioner, in response to a question as to what business he was in, replied: 'I am a projectionist'. An inspector's report discloses that the inspector spoke 'to Mrs. Spielvogel and she told me that he works steady as a motion picture operator.' Petitioner further testified at the hearing that he had his name on the window of a hardward store and that the owner of the store takes orders for his services as an electrician and he gets them from the store owner.

The board offered to allow petitioner to put his license in escrow until such time as he life the motion picture industry, but petitioner declined.

The following motion was made and duly seconded before the board: 'Resolved, it be recommended to the Commissioner that his (petitioner's) Master Electrician's License No. 6280 be suspended until such time as he appears before the Board and demonstrates to them that the is not principally engaged in other business, provided, however, that such appearance is made on or before December 31st, 1955, as after such date no opportunity to be heard will be granted him and the renewal of the license will be denied, as he has been found guilty of the charge of being principally engaged in other business.' On or before the 17th of June, 1955, the respondent commissioner notified petitioner in writing of the above resolution of the board.

Subsequently, petitioner brought this article 78 proceeding to (1) annul the determination of respondents suspending petitioner's master electrician's license, and to (2) direct the respondent commissioner to issue the license to petitioner. Only one contention was made at Special Term, the same contention presently here, viz., that that portion of the Administrative Code of the City of New York which enables the commissioner to suspend or revoke a license, after a hearing on notice before the board, on the ground of 'being principally engaged in * * * business' other than that of a master electrician, is violative of article I, §§ 6, 1, of the Constitution of the State of New York and also the Fourteenth Amendment, § 1, of the Constitution of the United States.

No issue is raised concerning the power of respondents to regulate all persons engaged in the electrical field, and petitioner concedes that respondents have that power.

As the majority of the court said in Defiance Milk Products Co. v. Du Mond, 309 N.Y. 537, 540-541, 132 N.E.2d 829, 830, in reference to the constitutionality of statutes: 'The applicable rules of law are well known. Every legislative enactment carries a strong presumption of constitutionality including a rebuttable presumption of the existence of necessary factual support for its provisions. Borden's Farm Products Co. v. Baldwin, 293 U.S. 194, 209, 210, 55 S.Ct. 187, 79 L.Ed. 281. If any state of facts, known or to be assumed, justify the law, the court's power of inquiry ends. United States v. Carolene Products Co., 304 U.S. 144, 154, 58 S.Ct. 778, 82 L.Ed. 1234. Questions as to wisdom, need or appropriateness are for the Legislature. Olsen v. State of Nebraska ex rel. Western Reference & Bond Ass'n, 313 U.S. 236, 246, 61 S.Ct. 862, 85 L.Ed. 1305. Courts strike down statutes only as a last resort, Ahern v. South Buffalo Ry. Co., 303 N.Y. 545, 555, 104 N.E.2d 898, 903, affirmed 344 U.S. 367, 73 S.Ct. 340, 97 L.Ed. 395, and only when unconstitutionality is shown beyond a reasonable doubt. Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 79, 31 S.Ct. 337, 55 L.Ed. 369; Matter of Fay, 291 N.Y. 198, 206, 207, 52 N.E.2d 97, 98. But, for all that, due process demands that a law be not unreasonable or arbitrary and that it be reasonably related and applied to some actual and manifest evil. Matter of Jacobs, 98 N.Y. 98, 110; Fisher Co. v. Woods, 187 N.Y. 90, 79 N.E. 836, 12 L.R.A.,N.S., 707; Nebbia v. People of State of New York, 291 U.S. 502, 54 S.Ct. 505, 78 L.Ed. 940. And even though a police power enactment may have been or may have seemed to be valid when made, later events or later-discovered facts may show it to be arbitrary and confiscatory. Abie State Bank v. Bryan (Weaver), 282 U.S. 765, 772, 51 S.Ct. 252, 75 L.Ed. 690.'

Thus, the sole questions presented for our determination are whether (1) the City Council of the City of New York had a reasonable basis upon which to act, (2) whether the enactment was reasonabel when made and reasonably related to some actual manifest evil, and (3) if so, whether subsequent events have shown the enactment to be arbitrary and confiscatory.

It is clear that the City Council had a reasonabel basis upon which to act in view of the inherently dangerous nature of electricity and, in fact, petitioner by conceding that power of regulation concedes that a reasonable basis exists for the legislative body to act.

The manifest evil to which the legislation was addressed was the damage and injuries which can be caused by electricity when not properly handled. The exact nature or composition of electricity is unknown, even to this day, and all that our men of science have been able to do is to chart a behavior pattern of this unknown quantity which enables us to harness and control it. The legislative intent behind the enactment of the legislation is set forth in the Administrative Code itself, where the purpose is stated as follows: 'B30-2.0 Purpose. Since there is danger to life and property inherent in the use of electrical energy, the electrical code is enacted to regulate the business of installing, altering or repairing wiring and appliances for electric light, heat or power in or on all real property within the building lines in the city of New York and the licensing of all persons who engage in such business.' With this thought in mind the Legislature defined a master electrician as follows: 'Master electrician. Any person, partnership or corporation who engages in or carries on as his or its regular business the business of installing, erecting, altering, extending, maintaining or repairing electrical wiring * * * and who carries on such business as an independent contractor having the final determination and the full responsibility for the manner in which the work is done, for the materials used and for the selection, supervision and control of any persons employed on the work engaged in by said person, partnership or corporation.' Administrative Code of City of New York, § B30-4.0, subd. 54; emphasis supplied. Therefore, it appears that the master electrician is the person who has 'the full responsibility' for everything that is done. He has the full responsibility for the final determination in the manner in which the work is done and the materials which are used. He has the full responsibility for the selection, supervision and control of all persons employed by said partnership, person or corporation. In other words, the master electrician is the person upon whom culpability is placed in the event that anything is improperly done, and it is he to whom the City of New York looks for full responsibility. In addition, the City Council and the Department of Water Supply, Gas and Electricity has provided that any firm, partnership or corporation shall not have more than one master electrician in its employ. Administrative Code of City of New York, § B30-4.0, subd. 55; Rules & Regulations Relating to Conduct of Licensed Electricians, No. 4. The Administrative Code provides that a member of the partnership shall hold the master electrician's license as a...