Stubbe v. Adamson

• Decision Date: 24 April 1917
• Citation: 220 N.Y. 459,116 N.E. 372
• Parties: STUBBE et al. v. ADAMSON, Fire Com'r, et al.
• Court: New York Court of Appeals Court of Appeals

220 N.Y. 459

116 N.E. 372

STUBBE et al.

v.ADAMSON, Fire Com'r, et al.

Court of Appeals of New York.

April 24, 1917.

Appeal from Supreme Court, Appellate Division, First Department.

In the matter of the application of Fred H. Stubbe and others for mandamus against Robert Adamson, Fire Commissioner of the City of New York, and others. From an order of the Appellate Division (173 App. Div. 305,159 N. Y. Supp. 751), reversing an order of the Special Term, which granted a motion directing the issue of an alternative writ, petitioners appeal. Order affirmed.Charles T. Terry, of New York City, for appellants.

Lamar Hardy, Corp. Counsel, of New York City (E. Crosby Kindleberger, of New York City, of counsel), for respondents.

HISCOCK, C. J.

The appellants are the owners of a garage in the borough of Manhattan which they desire to maintain and operate as such. Concededly they cannot do this without a license, and such license was refused on the ground that their garage came within the terms of a municipal regulation applicable to said borough, providing that a license should not be granted to a garage storing four or more automobiles, unless there had been installed therein an oil separator, for the purpose of separating gasoline from the effluent which might be discharged from the garage into the sewer. Appellants thereupon applied for a writ of mandamus compelling the issuance of a license to them, although they had not installed such separator, upon the grounds, amongst others, that there was no necessity for separating from the discharge into the sewer the small quantity of gasoline to be found therein, and that no oil separator had been devised which would thus separate the gasoline, even if it were necessary, and that, therefore, it was unreasonable to require them to expend a considerable amount of money in installing a process which was utterly useless. The respondents filed affidavits upon said application tending to show on the contrary that it was dangerous to allow gasoline to be discharged from a garage into the sewer, that there were effective oil separators, and that the expense of installing them was entirely reasonable. Upon these conflicting affidavits the court at Special Term ordered an alternative writ of mandamus, whereby would be tried the issues thus presented, and this order was reversed by the Appellate Division, which determined that appellants were not entitled to question the validity of the requirement in such manner. We are therefore presented with the question, in effect, whether the appellants are entitled to introduce evidence for the purpose of showing that the requirement aimed at them is unreasonable, and to have a jury set up its judgment against that of the law-making power and declare that the same should not be enforced.

[1] The primary query to be determined in the settlement of this ultimate question involves a consideration of the nature of the regulation which the authorities are seeking to enforce against the appellants, for it is well settled that the rules governing an attack upon a mere ordinance adopted by municipal authorities in pursuance of general authority are quite different than those which are applicable to an attack upon a statute passed by the Legislature or an ordinance adopted under specific authority of the Legislature or approved by that body after adoption. Enforcement of a regulation having the force of an ordinary municipal ordinance passed under general authority may be opposed on the ground that the ordinance is unreasonable and evidence may be introduced for the purpose of establishing this defense (Mayor, etc., of N. Y. v. D. D., E. B. & B. R. R. Co., 133 N. Y. 104, 30 N. E. 563,28 Am. St. Rep. 609;Village of Carthage v. Frederick, 122 N. Y. 268, 25 N. E. 480, 10 L. R. A. 178, 19 Am. St. Rep. 490); whereas, in the case of a statute or of an ordinance having the force of a statute, it is equally well settled as a general proposition that evidence may not be introduced for the purpose of showing that the statute or ordinance is unreasonable, and therefore unconstitutional. In our opinion the regulation attacked tacked by the appellants had the force and effect of a statute, because expressly authorized and approved by the Legislature, and therefore was not subject to attack in the manner sought by them.

The present regulation is found in the Code of Ordinances (chapter 10, art. 11, § 155) and it provides:

‘No garage permit authorizing the storage of volatile inflammable oil shall be issued for any premises, storing more than four motor vehicles, which are not provided with an oil separator, trap or other similar apparatus attached to the house drain for the purpose of preventing volatile inflammable oils from flowing into the sewer.’

Originally this provision was in the form of a regulation adopted by the former municipal explosives commission. While it was in force as a mere rule of that commission the Legislature passed chapter 899 of the Laws of 1911, amending the Greater New York Charter by adding thereto section 778c, which provided that the regulations of that commission, approved by the fire commissioner with certain immaterial exceptions, should ‘constitute a chapter of the Code of Ordinances of the city, and shall be subject to amendment and repeal by the board of aldermen.’ In pursuance of this statutory authority, and on January 3, 1912, this regulation became a part of the Code of Ordinances of the city. Cosby's Code of Ordinances of 1912, art. 11, § 376, p. 396.

Thereafter section 778c of the charter, which had thus authorized the incorporation of this regulation amongst the ordinances of the city, was amended by chapter 495 of the Laws of 1914, which provided:

‘The powers and functions heretofore given to and vested in the municipal explosives commission are hereby transferred to and vested in the fire commissioner, and the municipal explosives commission is hereby abolished. * * * All regulations of such commission in force immediately prior to the passage of this act shall continue to constitute a chapter of the Code of Ordinances of the city, subject to amendment or repeal by the board of aldermen. The fire commissioner is further empowered to make additional regulations for the sale, storage, keeping, manufacture or transportation of combustible, inflammable or explosive materials or articles. The sale, storage, keeping, manufacture or transportation of combustible, inflammable or explosive materials or articles in violation of the regulations authorized by this section is hereby prohibited.’

By these enactments, under the circumstances, it seems to us that the Legislature expressly recognized, approved and continued in force the regulation in question, amongst others, and thereby gave to it for the purposes under discussion the character of a statute.

[2] The general rule is that an ordinance adopted by a municipal corporation, ‘pursuant to authority expressly delegated by the Legislature, has the same force within the the corporate limits as a statute passed by the Legislature itself. * * * Where, however, the power to legislate is general or implied, and the manner of exercising it is not specified, there must be a reasonable use of such power, or the ordinance may be declared invalid by the courts.’ Village of Carthage v. Frederick, supra, 122 N. Y. at page 271, 25 N. E. at page 480, 10 L. R. A. 178, 19 Am. St. Rep. 490. It is equally true that the same statutory force may be given to an ordinance after its adoption by legislative recognition and approval. In City of New York v. Trustees Sailors' S. Harbor, 85 App. Div. 355, 360, 361,83 N. Y. Supp. 442, 446, affirmed on opinion below 180 N. Y. 527, 72 N. E. 1140, a section of the Building Code was in question. The charter provided that the provisions of the ‘building code which shall be in force in the city of New York on the first day of January, nineteen hundred and two, * * * are hereby declared to be binding and in force in the city of New York.’ The court there said:

‘In view of this ratification by the Legislature of the power to enact the Building Code, we fail to see why the Building Code should not be given the same force within the corporate limits as the statute passed by the Legislature itself.’

In Grimmer v. Tenement House Dept. of N. Y., 204 N. Y. 370, 377,97 N. E. 884, 887, where a provision of the Building Code was again in question, it was held and said:

‘If the provision of the Building Code already quoted * * * was ‘in force in the city of New York on the 1st day of January, 1902, the statute in question (being the same statute referred to in the case last cited) had the effect of expressly ratifying and adopting and continuing a definition of an apartment house,’ and giving to it the effect of a statute.

In Hart v. City Theatres Co., 215 N. Y. 322, 109 N. E. 497, it was held that the same Building Code had the force of a statute in the city of New York, and that a contract violating its provisions was unenforceable and contrary to public policy; there being applied the same rule as would be applicable to the violation of a statutory enactment.

In People ex rel. Lieberman v. Vandecarr, 175 N. Y. 440, 67 N. E. 913,108 Am. St. Rep. 781, a section of the Sanitary Code was in question, and it was there said that the section had legislative sanction, and ‘is recognized and adopted by the original and amended charter of the city of New York,’ although all that was contained in the charter in this respect was the declaration that existing provisions of such Code should be binding and in force in the city. Charter (Laws 1901, c. 466) § 1172.

In Matter of McIntosh v. Johnson, 211 N. Y. 265, 271,105 N. E. 414, 416, L. R. A. 1915D, 603, one of the regulations of the municipal explosives commission relating to the location of garages was claimed to be unreasonable. Judge Cuddeback there said:

‘The Legislature has authorized the adoption of this...