Metropolitan Board of Health v. Schmades

10 Abb. Pr. 205, 3 Daly 282

Opinion

By the Court.

*—Loew, J.

It appears that the complaint in this case was dismissed by the court below, on the ground that the plaintiffs had no authority to pass the ordinance, for an alleged violation of which this action was brought.

The power of the board of health to enact an ordinance like the one under consideration could not well be questioned (Laws of 1866, ch. 74, §§ 12, 20; Id., ch. 686, §§ 1, 3; Laws of 1867, ch. 956, § 10), were it not for other legislation respecting the storage and sale of kerosene or petroleum. In 1865 an act was passed by the legislature (Laws of 1865, ch. 773, § 3), prohibiting petroleum, kerosene, and other oils from being stored or sold within the corporate limits of any city in the State, “ the fire test of which shall be less than one hundred degrees Fahrenheit.” On May 4 of the following year, two other acts were passed (Laws of 1866, ch. 872, § 1 ; Id., ch. 873, § 51), one of which amends the act of 1865 and changes the prescribed test to one hundred and ten degrees Fahrenheit, and the other enacts that “no refined petroleum, kerosene, earth or rock oil, or machinery oil, shall be kept upon sale or stored within the corporate limits of the city of New York, the fire test of which shall be less than one hundred degrees Fahrenheit.”

Although both of these acts were passed on the same day, we think the last mentioned one should be deemed the later and controlling statute, not only because its number is greater, and because it was passed with special reference to the city of New York,—while the former is applicable to all the cities in the State,— but also for the reason that it was not to go into operation until June 1, 1866, whereas the other took effect immediately upon its passage. Effect will thus be given to both statutes in the city of New York, one being in force from the date of its passage to June 1, at which time the other went into effect and repealed all other statutes in any case provided for by that act or inconsistent with its provisions, so far as the same relate to said city (Laws of 1866, ch. 873, § 63).

As the legislature has, in section 51 of the last-mentioned act, particularly specified what the fire test of refined petroleum, kerosene, and other oils shall be, in order to render the storage and sale thereof lawful, and also prescribed the circumstances under, as well as the kind of buildings in which the same may be stored, we think it is not competent for the Board of Health to create or impose additional tests or conditions as a prerequisite to the right to keep or sell such oil, as it has attempted to do in the ordinance referred to.

The claim of the plaintiffs that said ordinance is consistent with the act of the legislature, as the former only has reference to the keeping and offering for sale petroleum which is to be used as a burning fluid or for the purpose of illumination, while the latter relates to the storage and sale thereof generally, will not avail them. The act of the legislature prohibits the storage or sale of petroleum that does not come up to a certain test, which implies that it may be so stored and sold if it be of that test. How the ordinance of the board of health prescribes another and different test, and forbids the keeping and selling thereof, notwithstanding the requirements of the law may be fulfilled. The two are, therefore, manifestly inconsistent with each other.

Besides, a violation of the statute in respect to the test fixed by it, would, necessarily, also be a violation of the ordinance ; and if the latter were valid, a party offending would be subjected to two actions to recover distinct penalties for the same cause—one brought by the fire department and the other by the board of health.

Nor do we think that there is anything in section . 10 of the act passed the year after the above law (Laws of 1867, ch. 956, § 10), which confers authority on the board of health to pass the ordinance in question. That section gives the board power to make ordinances upon all matters and subjects so far as the power of said board extends. But such ordinances must be consistent with the constitution and laws of this State (Laws of 1866, ch. 74, § 20; Id., ch. 686, § 1), and, as we have already seen, the ordinance referred to is inconsistent with a law on the same subject, and is, therefore, invalid and of no effect. In our opinion the judgment of the court below was correct, and should be affirmed.

Charles P. Daly, Ch. J., and Vah Brunt, J., concurred.

Present, C. P. Daly, Ch. J., and Loew and Van Brunt, JJ.