City of Rochester v. Macauley-Fien Milling Co.

• Decision Date: 27 September 1910
• Parties: CITY OF ROCHESTER v. MACAULEY-FIEN MILLING CO.
• Court: New York Court of Appeals Court of Appeals

199 N.Y. 207

92 N.E. 641

CITY OF ROCHESTER

v.MACAULEY-FIEN MILLING CO.

Court of Appeals of New York.

Sept. 27, 1910.

Appeal from Supreme Court, Appellate Division, Fourth Department.

Action by the City of Rochester against the Macauley-Fien Milling Company. From a judgment of the Appellate Division (131 App. Div. 923,115 N. Y. Supp. 1115), affirming a judgment of the Monroe County Court, which affirmed a judgment of the Rochester Municipal Court in favor of plaintiff and against defendant for $25 damages and costs, defendant appeals by permission of the Appellate Division. Affirmed.

The common council of the city of Rochester duly enacted an ordinance relating to public safety and good order, which, so far as it relates to the defendant, is as follows:

‘Sec. 39. As to Smoke from Chimneys--

‘Subdivision (a). Color Scale.-For the purpose of regulating the emission of smoke from chimneys, stacks, flues or open spaces within the city of Rochester, and to determine by comparison the degree of darkness of smoke so emitted, a color scale shall be and the same is hereby adopted as follows:

‘A dead white surface of cardboard or other material, not less than sixteen inches in length and in width, shall be divided into squares by straight dead black lines drawn at right angles to one another across said surface. Each of said lines shall be of a uniform width of one-twenty-fourth of an inch and shall be spaced one-quarter of an inch from centers. The color of the above scale when viewed from a distance of not less than one hundred feet in the open air shall be used as a basis of comparison of the color of smoke in the city of Rochester.

‘Subdivision (b). Dark Smoke Forbidden. It is forbidden and hereby declared to be unlawful to suffer or permit the escape of smoke from any fire not in motion or fire banked or in a state of rest, or from any burning or active fire through a stationary stack, flue or chimney, of a color darker than said scale, provided, however, that the provisions of this ordinance shall not apply to the escape of smoke from any stationary stack, flue or chimney, for a period of not to exceed five minutes whenever the successful operation and management of any fire necessarily requires such escape of smoke, but such escape of smoke shall not be permitted or allowed for such period of time more often than once in four consecutive hours. * * *

‘Subdivision (d). Time Excepted. The provisions of this section shall not apply between the hours of 5 a. m. and 7:30 a. m.

‘Subdivision (e). Special Penalties. Any corporation or person or persons who shall violate any of the provisions of this section, or shall suffer or permit any of the acts in this section forbidden or declared to be unlawful, shall be subject to a penalty of twenty-five dollars for each offense, to be recovered in a civil action by the city of Rochester.

‘Subdivision (f). Enforcement. It is hereby made the duty of the commissioner of public safety to enforce the provisions of this section.’

The defendant is a domestic corporation operating and conducting a flour mill in said city. After the ordinance quoted became in force as a law of the city, and on November 2, 1906, the defendant continuously between 10:16 a. m. and 11:15 a. m. suffered and permitted the escape of smoke from a stationary smokestake on said flour mill, in violation of said ordinance.

This action was commenced in the municipal court of the city of Rochester to recover of the defendant $25, the penalty for such disobedience of said ordinance. Judgment was recovered against the defendant, which has been affirmed by the County Court of the county of Monroe and the Appellate Division of the Supreme Court in the Fourth Judicial Department, respectively, on appeals to such courts, and an appeal is taken by permission from the judgment of the said Appellate Division of the Supreme Court to this court.Joseph R. Webster, for appellant.

William W. Webb, for respondent.

CHASE, J. (after stating the facts as above).

At the time when this action was commenced Rochester was a city of the second class, governed by the second-class cities law (chapter 55 of the Laws of 1909 [Consol. Laws, c. 53]), which, so far as we are now concerned, is a re-enactment of chapter 182 of the Laws of 1898. Said act of 1898 was in force when said ordinance was enacted. The common council of the city is vested with legislative power by a provision of the statute as follows: ‘The legislative power of the city is vested in the common council thereof, and it has authority to enact ordinances, not inconsistent with law, for the government of the city and the management of its business, for the preservation of good order, peace and health, for the safety and welfare of its inhabitants and the protection and security of their property. * * *’ Second-Class Cities Law, § 30, chapter 182, Laws 1898, § 12. This court in People ex rel. Dunn v. Ham, 166 N. Y. 477, 481,60 N. E. 191, 192, in construing the section from which we have quoted, said: ‘The evident purpose of that section was to confer upon the common council entire legislative authority as to matters relating to the municipal government, except as limited by that statute and others not inconsistent with its provisions. This is clearly indicated by the act itself, and was plainly avowed by the commission which reported it to the Legislature. 5 Senate Documents 1896, No. 24.’ The common council is thus the judge as to what ordinances it will pass for the safety and welfare of the inhabitants of the city and the protection and security of their property, and, unless an ordinance passed by it is wholly arbitrary and unreasonable, it should be upheld. The necessity and advisability of the ordinance is for the legislative power to determine. The presumption is in favor of the ordinance....