People ex rel. New York, N.H.&H.R. v. Willcox

• Decision Date: 24 January 1911
• Citation: 200 N.Y. 423,94 N.E. 212
• Court: New York Court of Appeals Court of Appeals
• Parties: PEOPLE ex rel. NEW YORK, N. H. & H. R. v. WILLCOX et al., Com'rs.

200 N.Y. 423

94 N.E. 212

PEOPLE ex rel. NEW YORK, N. H. & H. R.

v.WILLCOX et al., Com'rs.

Court of Appeals of New York.

Jan. 24, 1911.

Appeal from Supreme Court, Appellate Division, First Department.

Certiorari by the People, on the relation of the New York, New Haven & Hartford Railroad Company against William R. Willcox and others, Commissioners of the Public Service Commission of the City of New York, First District, to review orders made by the Commission. From an order of the Appellate Division (138 App. Div. 330,123 N. Y. Supp. 153) affirming the orders of the Commission and dismissing the writ, relator appeals. Reversed, and orders of the Commission annulled.

Charles M. Sheafe, Jr., for appellant.

George S. Coleman, for respondents.

GRAY, J.

This appeal demands our consideration of the jurisdiction of the respondents, who constitute the Public Service Commission, for the First District of this state, to entertain and to determine upon a complaint by a citizen of the maintenance by a railroad corporation of a nuisance, in violation of the Sanitary Code of the charter of the city of New York (Laws 1901, c. 466). In August, 1909, there was presented to the Commission, in behalf of the South Bronx Property Owners' Association, a complaint, which called the attention of the members ‘to the unsanitary and offensive manner, in which the New York, New Haven & Hartford Railroad Company maintains and loads its manure cars in its Harlem river yards.’ It describes in what way the company's acts were offensive to the people resident in, or having to pass through, the neighborhood, and alleged that ‘the nuisance complained of is being maintained in violation of the Sanitary Code, and formal written complaint has been made to the department of health.’ The Harlem river yard referred to is used as the New York city terminal of the railroad company, and it does not deny that, in the course of the conduct of that part of its business, offensive odors might be caused. It will be observed that the complaint relates not to the inconvenience or discomfort of the company's passengers, nor to any other portion of its road, than is within the city of New York. At the hearing before the Commission, the company moved to dismiss the complaint, ‘on the ground that the public service act provides especially for matters which are within the scope of the Public Service Commission, and that this is a distinct matter, which is one for the board of health, and a local matter, which is not * * * within the jurisdiction of the Public Service Commission.’ This motion was renewed at the close of the case. The commissioners, in declining to grant it, were of the opinion that the Legislature had delegated to the Commission ‘the police power of the state over the agencies described in the public service commissions law, within its jurisdiction’; that the Legislature could ‘recall any powers of the board of health of the city of New York so far as railroads are concerned,’ and that the provisions of the public service commissions was indicated that it should ‘prevail over any conflicting provisions of the Greater New York Charter.’ Therefore, the orders which the board of health had issued, as they held, must yield to those of the Commission. In determining to make the order now complained of, the Commission proceeded upon the theory of its jurisdiction extending to the case of a nuisance, affecting the public health of the locality. In the opinion rendered, the matter was considered from its sanitary aspect. It was observed that ‘a very large part of the objection raised by the complainant was caused by the unsanitary manner in which the railroad has allowed its business to be conducted in the past,’ and that, ‘while this traffic is a nuisance to any particular neighborhood, to a certain extent, the situation does not warrant the Commission in ordering this nuisance to be removed to some other location.’ Entertaining these views, the Commission made the order in question. The order requires the railroad company, in substance, to remove from its yard a plank platform, from which the manure was loaded into cars; to disinfect the ground under it; to construct a new platform of Belgian blocks, graded so as to discharge all liquid matter into a sewer; to restrict the use of the tracks occupied by manure cars to that purpose only, when used for manure shipments; to place the manure cars not less than 100 feet from the elevated railroad; to load, at one time, not more than four cars; to cover the cars when loaded with a tarpaulin, or canvas, so as to prevent the escape of objectionable odors; to remove the loaded, or partially loaded, cars, at the close of each day's work to some remote part of the yard for the night; and to keep the platform clean by sweeping and washing after the removal of the cars at the close of the day.

Upon the petition of the railroad company, this relator and appellant, the present writ of certiorari issued to review the action of the respondents. The Appellate Division, in the First Department, on hearing the matter, upon the return made by the respondents, dismissed the writ. The learned justices divided in opinion. Those who united in affirming the proceedings of the respondents, conceding that there had been created a public nuisance, held that it did ‘not follow because the health department had the power to abate the nuisance, that the Commission was without jurisdiction to regulate the shipment in the manner it did; * * * that the statute conferred upon the Commission the power to make the order which it did, and it is entirely immaterial whether a nuisance existed or not.’

I find myself quite unable to agree in the view taken below of the extent of the jurisdiction of these respondents, and I think it was error for that body to have entertained the complaint. If some of the things ordered to be done may be considered to have been within the exercise of the powers confided to the Public Service Commissions, if properly moved thereto in the regulation of the operations of the common carrier, that is no sufficient answer to the objection that the respondents have exceeded their powers, in this instance, in undertaking to abate a local nuisance, and have unlawfully intruded upon the jurisdiction appertaining to the department of health, to regulate all matters relating to the protection of the health of the city. The board of health had been complained to and had taken cognizance of the matter pursuant to the authority conferred by the provisions of the Sanitary Code contained in the charter of the city. It was provided in the Greater New York Charter that ‘the authority, duty, and powers of the department of health shall extend over the city of New York,’ and that ‘all the authority, duty and powers heretofore conferred or enjoined upon the health department, boards of health, health and sanitary officers * * * are hereby conferred upon and vested in and enjoined upon, and shall hereafter be exclusively exercised in the city of New York by the department of health, and board of health, created by this act.’ Section 1168. There was created an elaborate system, or Sanitary Code, which directed the enforcement of all laws applicable ‘to the care, promotion, or protection of health’; vested in the board of health power to exercise all authority necessary to that end and to enforce ‘all laws relating to cleanliness'; prescribed punishment for any violation of the Sanitary Code, as for a misdemeanor; empowered the board of health to abate nuisances; and declared a nuisance to be ‘whatever is dangerous to human life or detrimental to health,’ and, among other things, ‘whatever renders the air * * * unwholesome.’ See title I, c. 19 . § 1229, Greater New York Charter. There is no question but what the authority and power to act conferred upon the board of health by the city charter were ample for the purposes intended and declared. To find them withdrawn as against a railroad corporation, there should be very precise language of repeal, or such apparent repugnance and inconsistency in the provisions of the public service commissions law, as to require those of the charter to yield to them as a later law. To find the charter provisions rendered less exclusive, the powers conferred in the later law should be in such language and of such unmistakable pertinence as to imply their concurrent exercise by the two bodies. I find none of these conditions to exist, and I think that a consideration of the powers vested in the respondents, and, as well, some regard to political conditions, should lead to the conclusion that there could have been no legislative intent to affect, in any wise, the exclusive local jurisdiction of the department of health by the enactment of a general law for the supervision of railroads in the state. It would be difficult to perceive either a reason or any sound policy in conferring upon the Commissions a jurisdiction concurrent with that of the city's health department. Judicial construction of a general statute should guard against interpreting its language, so as to create conflict or contradiction with the provisions of an earlier and special statute, if it may stand independently and with a distinct and useful purpose to accomplish. I think the public service commissions law has its distinct and wide field of operation, with powers directed to the accomplishment of a general purpose, which does not involve the promotion of the health of the political subdivisions of the state.

Public Service Commissions were established by chapter 429 of the Laws of 1907 ‘to provide for the regulation and control of certain public service corporations.’ By section 5 it was provided that ‘the jurisdiction * * * of the Public Service Commission in the First District shall extend under this act (1) to railroads and street railroads lying exclusively within that district; * * * (3) to such portion of the...