
    In the Matter of the Application of Fred. H. Stubbe and Others, a Copartnership Doing Business under the Trade Name and Style of the “Bronx Garage,” Respondents, for a Writ of Mandamus, v. Robert Adamson, Fire Commissioner of the City of New York, and Others, Constituting the Board of Hazardous Trades of the City of New York, Appellants.
    First Department,
    June 16, 1916.
    Municipal corporations — garage permit, city of New York —refusal of applicant to install oil separators—mandamus to compel issuance of permit — courts cannot hold ordinances unconstitutional "by reason of legislative decision on question of fact supported "by evidence — when ordinance has authority of statute.
    Sections 165 and 156 of chapter 10 of the Code of Ordinances of the city of New York, providing that no license for a public garage shall be issued unless the building be equipped with an oil separator approved by the fire commissioner, whether they be considered as having the force of a statute, owing to approval by the Legislature, or whether they be considered merely as a muncipal ordinance, cannot be declared to be invalid on the application for a writ of mandamus to compel the issuance of a garage permit to a relator who refuses to install such oil separator, on the theory that such device is ineffective and unnecessary, if in fact it appear from uncontroverted evidence that a separator if used would tend to minimize the danger of explosive liquids flowing into the public sewers.
    Mandamus only lies to enforce a clear legal right, and it eannnot be said that a right is clear where it involves the validity of a statute or ordinance,. the authority to enact which depends upon the determination of a legislative body with respect to a question of fact.
    
      It seems, that said ordinances, owing to a ratification by the Legislature, have the force and effect of statutes, and hence fall under the general rule that evidence cannot be received to determine the constitutionality of an act of the Legislature, with the exception that evidence may be received where necessary to show the application and effect of a statute from which it may appear that the statute cannot be complied with, or that the expense of compliance therewith will be out of all proportion to the public benefit so that it is unconstitutional.
    Appeal by the defendants, Robert Adamson and others, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 29th day of November, 1915, granting relators’ motion for an alternative writ of mandamus requiring the appellants to pass upon the application of the petitioners, and if found otherwise to conform to the requirements of the law to issue to them a garage permit irrespective of whether or not they have installed in their garage an oil separator or similar apparatus.
    
      E. Crosby. Kindleberger [Terence Farley and William J. Millard with him on the brief], for the appellants.
    
      Charles Thaddeus Terry [Edward Ward McMahon with him on the brief], for the respondents.
   Laughlin, J.:

The purpose of this proceeding is to test the validity of the provisions of section* 155 (Art. 11) of chapter 10 of the Code of Ordinances of the city of New York, in so far as the same require the installation of an oil separator or similar appliance, as a condition precedent to the right of the owner or proprietor óf a garage to obtain a permit which will enable him to conduct the garage business, for the petitioners pray that a mandamus issue requiring the appellants to pass upon their application for a garage permit irrespective of whether or not they have complied with the requirements of said ordinance. Subdivisions 32 and 33 of section 1 (Art, 1) of chapter 10 of the Code of Ordinances define private and public garages. Section 150 (Art. 11) of chapter 10 provides that no person shall store any motor vehicle “ containing volatile inflammable oil, except in a building, shed or enclosure for which a garage permit shall have been issued.” Section 153 (Art. 11) of chapter 10 requires that a public garage in which volatile inflammable oil is stored shall be continuously under the care and supervision of one or more persons duly licensed for fitness as superintendent or manager thereof. Section 155 (Art. 11) of chapter 10 is as follows:

“Oil separators.— 1. When required. No garage permit authorizing the storage of volatile inflammable oil shall be issued for any premises, storing more than 4 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; provided, however, that the fire commissioner may exempt from the requirements of this section a garage draining into a short sewer line.
“2. Oil receptacle. The oil receptacle of an oil separator shall not exceed 50 gallons capacity, and shall be emptied as often as may be necessary to prevent the oil from overflowing; and such oils as are recovered from the separator shall be removed from the garage within 24 hours after being taken from the separator.
“3. Sewer connection. Each oil separator shall be connected to the house drain, and shall be so arranged as to separate all oils from the drainage of the garage.
“ 4. Waste oil. All oils spilled on the floor of a garage shall be removed by sponging or swabbing, and poured into the drain leading to the oil separator.”

Section 156 (Art. 11) of chapter 10 provides that no garage permit authorizing the storage of volatile inflammable oil shall be issued for any premises which are not equipped with an approved storage system as therein prescribed, and regulates the manner in which oil shall be delivered to the garage; and subdivision 3 thereof provides, among other things, that “No * * * oil separator * * * shall be installed in a garage unless it be of a type for which a certificate of approval shall have been issued by the fire commissioner. ” A violation of any of the provisions of these ordinances is punishable by fine or imprisonment, or both. (See Code of Ordinances, chap. 10, § 300; Cosby’s Code Ord. [Anno. 1915] 215, § 300.)

The petitioners are copartners, conducting a general garage business on premises owned by them known as Nos. 528-530 Morris avenue, borough of The Bronx, New York, on which it is' alleged the garage was constructed in 1910, pursuant to plans approved by the fire commissioner of the city, who, it is also alleged, approved the storage tank for gasoline in said garage and all other appliances used therein. On the 10th day of January, 1915, the petitioners presented to and filed with the appellants an application in due form for a permit to conduct a public garage on said premises, and to keep thereon 275 gallons of gasoline, five barrels of lubricating' oil, one barrel of kerosene and seventy-five motor vehicles. It does not appear whether or not the petitioners had a prior permit, but they admit that they require a garage permit to authorize them to continue the business, and, therefore, it must be assumed either that they had no permit before or that the former permit expired. On the filing of the application with them, the appellants caused an inspection of the premises to be made, and it appears that the inspector inquired whether the petitioners had installed in their garage an oil separator, and ascertained that they had not. The fire commissioner thereafter notified the petitioners that they would be required to install and use certain additional appliances, and among others an oil separator. It appears that the fire commissioner has approved nine different styles of oil separators which are evidently purchasable in the market, and that 475 oil separators of types so approved are in use in garages in the city of New York. The petitioners failed and refused to install an oil separator, but complied with all other requirements of the fire commissioner. They allege that their garage is carefully operated under the supervision and control of one who holds a certificate of fitness therefor issued by the fire commissioner of the city of New York, and that their application for a permit has been denied solely on the ground that they have failed to install and attach to the house drain an oil separator, trap or other similar apparatus approved by the fire commissioner of the city of New York, as required by said section 155 of chapter 10 of the Code of Ordinances, for the purpose of preventing volatile inflammable oil from flowing into the sewer; and they further allege that they so conduct their garage that the amount of volatile inflammable oil flowing into the sewer from their premises “isa negligible quantity, and does not and cannot cause any dangerous fire condition or fire hazard, or give rise to any danger whatever of fire or explosion in the sewer,” and that it is impossible for them to comply with the requirements of said section for the reason that “there are no oil separators, traps or other similar apparatus in existence which when attached to the house drain of a garage will prevent volatile inflammable oils from flowing into the sewer.” The petitioners also allege that their said premises can be used only for the garage business; that they have invested therein more than $75,000; that to install an oil separator would needlessly require the expenditure by them of more than $200, and that the device if installed would be useless; that the ordinance in so far as it requires the installation of an oil separator as a condition precedent to a permit being issued to them is unreasonable, unjust and oppressive, and deprives them of their property without due process of law; that a prosecution against them for operating a garage without a permit has been instituted by the appellants, and that they have no remedy to prevent the continuance of said prosecution to a successful termination, or to protect their rights, and to avoid damages both with respect to their property and reputation, unless a writ of mandamus shall issue requiring the appellants to pass upon their said application and to issue a permit in disregard of the said requirements of said section, provided the appellants find that the petitioners have in all other respects complied with the conditions precedent to their right to a permit, and that in the meantime the prosecution for operating a garage without a permit be stayed. The petitioners prayed for either a peremptory or an alternative writ.

The order directs that an alternative writ issue requiring the appellants to pass upon the application and to approve it and issue a garage permit thereon “ irrespective ” of whether an oil separator, trap or similar apparatus has been installed in their garage, as required by said section 155 of chapter 10 of the Code of Ordinances, provided the appellants find that the garage structure “is built of proper material, is properly managed and is otherwise safe and secure.” The effect, therefore, of the order is to authorize an alternative writ for the trial of the questions presented by the petitioners with respect to the validity of the requirement of the ordinance that an oil separator or similar appliance be installed, and in the event that the ordinance shall be found to be invalid in this respect, then that a peremptory writ be awarded to the petitioners requiring that it be disregarded by the appellants in passing upon the application for the garage permit.

The petitioners presented affidavits of garage owners, chemists and engineers in support of their petition, which tend to show that gasoline, owing to the fact that it is expensive and that its use in washing automobiles injures the finish, forms only a very small percentage of the effluent drained from a garage into the public sewer, and the percentage is stated by one affiant as low as one one hundred and twentieth of one per cent; that the gasoline so escaping into the sewer will cause neither an explosion nor a fire; that gasoline in a liquid form is not an explosive and an explosion will take place only when there is a, particular percentage of gasoline vapor in the air, and then contact with a spark or flame, and that it is improbable that gasoline vapor would be given off from the small percentage of gasoline in solution or in suspension in the effluent from a garage, and that it is highly improbable that it would be given off in the precise proportion necessary to cause an explosion should it come in contact with a spark or flame; that no known oil separator or other similar apparatus is practical, or will remove any material part of the gasoline from the effluent, because such separators are constructed to operate upon the principle that gasoline being lighter than water will rise to the surface of the effluent, and that this does not occur owing to the fact that there is ordinarily a large quantity of soap in the effluent which forms an “emulsion” with the water and gasoline, and that the effluent is discharged with such rapidity into and through the separator that there is little opportunity for gravitation to have effect, and that the low temperature of the effluent also retards or prevents the successful operation of gravitation in this regard, and that the separators are measurably too small for attaining any practical result. In behalf of appellants, affidavits made by the deputy fire commissioner, the chief of construction of the uniformed force of the fire department of the city of New York, the inventor of one of the oil separators approved by the fire commissioner, and an engineering chemist in the central testing laboratory of the board of estimate and apportionment of the city of New York, were presented tending to show that oil separators are practical and feasible, and that there are and have been for some time in successful operation upwards of 475 oil separators in garages throughout the city of New York; that the installation of the same has prevented the discharge of large quantities of gasoline and other oils into the sewers, and that gasoline is used in the fire department garages for cleaning “parts” of automobiles; that it is a liquid of much lower gravity than water and floats on the surface of water, and does not mix with water to any appreciable extent, and is dangerous in itself by reason of its high volatility, and owing to the vapors that are formed from it, which have a tendency to ignite and explode, and that the fumes of gasoline are dangerous to inhale.

There is also evidence presented by affidavits in behalf of appellants to the effect that under tests made by the fire department of the effluent from one of its garages which passed through one of the oil separators approved by the fire commissioner, it was demonstrated that a large quantity of gasoline rose to the surface in the separator and remained there until removed in the ordinary operation of the device. This is uncontroverted, with the exception that the evidence presented by appellants shows that sixty per cent of the fluid thus removed from the oil separator, during one of the tests, was gasoline, and an affidavit in behalf of respondents is to the effect that only one and six-tenths per cent of it was gasoline.

There may be said to be a conflict in the evidence with respect to the effectiveness of the oil separators; but I think it stands uncontroverted that if there is gasoline in the effluent to any considerable extent, part of it, at least, will be removed by the operation of the oil separator, and will thus be prevented from going into the sewer.

In Matter of Joscelyn Stable Co. v. Johnson (157 App. Div. 119) this court affirmed an order denying a peremptory or alternative writ for a garage permit under the regulation then in force, from which the ordinance now in question has been compiled or taken. The same complaint was there made with respect to the requirement that an oil separator be installed as is here presented. We then held that the regulation was presumptively and apparently valid; but in disposing 'of the contention that the petitioner in that case had shown by extrinsic evidence that the requirement was unreasonable and that a question of fact was presented entitling it to an alternative writ' we said, in effect, that the affidavits read in opposition showed that there were devices in the market which were practicable and efficient and that such affidavits were uncontroverted. The petitioners here h ave made out a stronger case and it requires us to give further consideration to that point for it is claimed that we intimated, at least, that if the facts with' respect to the effectiveness of the appliance had been fairly controverted an alternative writ should have been issued.

Section 178c of the Greater New York charter (Laws of 1901, chap. 466, as added by Laws of 1911, chap. 899) provided that “all regulations ” of the municipal explosives commission “ approved by the fire commissioner, except such as relate exclusively to its organization, or to the duties and discipline of its officers and employees, shall constitute a chapter of the Code of Ordinances of the city, and shall be subject to amendment or repeal by the board of aldermen.” The ordinances in question were originally adopted as regulations of the municipal explosives commission thereafter and on January 3, 1912, and by virtue of said section 118c of the charter they, thereupon, became ordinances. By virtue of chapter 495 of the Laws of 1914 amending said section 118c the municipal explosives commission was abolished, and its powers and functions were trans.ferred to and vested in the fire commissioner, and it was therein provided that all regulations of said commission in force immediately prior to the passage of that act, which took effect on April 23,1914, “shall continue to constitute a chapter of the Code of Ordinances of the city, subject to amendment or repeal by the hoard of aldermen.”

It appears that some complaint was made and facts with reference to the working of oil separators were drawn to the attention of the fire department in April, 1914, by an association known as the Merchants’ Association; but as no action resulted therefrom, an effort was made to repeal the ordinances in so far as they require the installation of oil separators, and a resolution for the repeal thereof was introduced in the board of aldermen and referred to a committee, and after public hearings the committee reported in favor of the repeal, and the resolution was adopted by a vote of sixty to one, and after a public hearing at which all parties interested for and against the resolution were heard, the mayor determined to veto it, and although it received a majority vote it failed to receive the two-thirds vote necessary to pass it over the veto.

Section 1556 of the charter provides as follows: “A code or other volume containing either the ordinances or by-laws of the city published by authority of the board of aldermen shall be prima facie evidence in all courts of justice of the authenticity of such ordinances or by-laws.” Section 57 of the charter requires that the ordinances of the city shall be reduced to a ■ code and published, and that the general ordinances in force on January 1, 1902, together with all general ordinances thereafter adopted shall be annually compiled by a committee appointed by the board of aldermen, and that said board should cause the ordinances as so compiled to be published annually. The said regulations of the municipal explosives commission, which had thus become a chapter of the Code of Ordinances, were evidently compiled pursuant to this authority, and in such compilation rearranged and the numbers of the sections changed, for it appears by the record on appeal in this court in Matter of Joscelyn Stable Co. (supra) that the requirement for an oil separator was contained in section 376 of the regulations of the municipal explosives commission and was the same in that regard as the present section 155 of chapter 10 of the Code of Ordinances, with the exception that its application is hy said section 155 limited to garages in which more than four motor vehicles are stored, which evidently was intended to exempt ordinary private garages, whereas said section 376 contained no such limitation, and also with the exception that there is omitted from said section 155 the requirement of the recommendation of the municipal explosives commission, which had been abolished, as a condition precedent to the exemption from the requirement of an oil separator contained in said section 376 of the regulations of the municipal explosives commission. The record now before the court does not specifically, show what were the provisions of the ordinances on this subject when they were continued in force by the Legislature by said chapter 495 of the Laws of 1914; but it is not claimed that they were materially different from those herein quoted, and it appears generally by the petition and affidavits that the municipal explosives commission, before it was abolished, adopted certain regulations, and among others one requiring the installation of oil separators, and that said regulations “became part of the Code of Ordinances of the City of New York, and under and pursuant to legislative enactment, such regulations were enacted and changed by the Fire Commissioner and the Board of Hazardous Trades, and were thereafter re-enacted and became part of the Code of Ordinances of the City of New York,” and that among them are those herein quoted. It, therefore, appears that the Legislature has approved of the regulation which had become an ordinance requiring the installation of oil separators in- all garages, excepting those exempted by the fire commissioner, and it does not appear that the ordinance as thus approved by the Legislature has been repealed, although it is to be inferred, as already stated, that in the compilation thereof, or otherwise, an amendment has been made thereto by which the ordinance with respect to the installation of oil separators has become less drastic in that it is confined to garages storing more than four motor vehicles.

Although the city does not pointedly argue that the ordinance, in so far as it requires the installation of oil separators, has been ratified by the Legislature, and is, therefore, in effect, the same as if the Legislature had enacted it, I think on these facts that such is the case (City of New York v. Trustees, 85 App. Div. 355; affd. on opinion below, 180 N. Y. 527; Racine v. Morris, 136 App. Div. 467; affd., 201 N. Y. 240; People ex rel. Van Beuren & N. Y. B. P. Co. v. Miller, 161 App. Div. 138; Post v. Kerwin, 133 id. 404), and if that be so, manifestly it cannot be impeached by such evidence as is here presented, for the well-settled general rule is that evidence cannot be received to determine the constitutionality of an act of the Legislature (People ex rel. Kemmler v. Durston, 119 N. Y. 569; affd., sub nom. Matter of Kemmler, 136 U. S. 436), and the only exception is where evidence is necessary to show the application and effect of the statutory enactment from which it may appear that the statute cannot be complied with or that the expense of compliance therewith would be out of all proportion to the public benefit and advantage, and that, therefore, the statute would be unreasonable and void. (See Fire Department of New York v. Gilmour, 149 N. Y. 453; Health Department v. Rector, etc., 145 id. 32; People v. Gillson, 109 id. 389. See, also, Fisher Co. v. Woods, 187 N. Y. 90; People v. Ringe, 197 id. 143.) It is not claimed that the invalidity of the ordinance appears on an inspection thereof, and manifestly that could not well be claimed, for it plainly purports to be enacted in the interest of public safety and the public welfare. Nor is it claimed that there is any practical difficulty in complying with the ordinance. The only contention is that compliance therewith will require an expenditure of about $200 as shown by the petition and from $400 to $900 as shown by affidavit, without any beneficial result, or a corresponding beneficial result, so far as the public safety and welfare are concerned. If it is to be regarded as an enactment by the Legislature, as I think it is, then it is quite plain that it cannot be successfully attacked on the lines here proposed; but if it is to be regarded as an ordinance merely, I am also of opinion that a case is not made out for the issuance of either a peremptory or an alternative writ of mandamus. If it is to be inferred from the changes to which attention has been called, that in its present form it is an amendment of the former ordinance which has been adopted since the Legislature ratified the ordinance, then surely since the amendment made it less drastic and since authority to amend was expressly conferred, it falls within the rule for testing the validity of ordinances enacted under specific express authority as distinguished from those enacted under general authority which is that they have precisely the same force and effect as if enacted by the Legislature. (Village of Carthage v. Frederick, 122 N. Y. 268; City of Rochester v. Simpson, 134 id. 414; Mayor, etc., v. D. D., E. B. & B. R. R. Co., 133 id. 104; City of Buffalo v. N. Y., L. E. & W. R. R. Co., 152 id. 276; People ex rel. Oak Hill C. Ass'n v. Pratt, 129 id. 68. See, also, People ex rel. Knoblauch v. Warden, etc., 216 N. Y. 154, 162.) But even with respect to ordinances enacted under general, express or implied power the general rule is that where they purport to be and are obviously enacted in the interest of the public health, safety or welfare, they are, even though they contain exceptions or exemptions, presumed to be valid, and may be declared invalid only when it plainly appears that they do not tend in any appreciable degree to that end and that the power to legislate has been exercised arbitrarily in the enactment of an ordinance which is clearly unreasonable. (People v. Gillson, supra; City of Rochester v. Macauley-Fien M. Co., 199 N. Y. 207; Fifth Ave. Coach Co. v. City of New York, 194 id. 19; affd., 221 U. S. 467; People ex rel. Wineburgh Adv. Co. v. Murphy, 195 N. Y. 126; City of Rochester v. West, 164 id. 510; People v. Klinck Packing Co., 214 id. 121; People v. Charles Schweinler Press, Id. 395; Matter of McIntosh v. Johnson, 211 id. 265; City of Rochester v. Gutberlett, Id. 309; City of Buffalo v. N. Y., L. E. & W. R. R. Co., 152 id. 276; Mayor, etc., v. D. D., E. B. & B. R. R. Co., 133 id. 104; City of Chicago v. Mandel Bros., 264 Ill. 206; People v. New York Edison Co., 159 App. Div. 786; People ex rel. Knoblauch v. Warden, etc., 216 N. Y. 154; Village of Carthage v. Frederick, supra.) In some cases evidence is admissible to show that an ordinance is unreasonable, and this is necessarily so where compliance with the ordinance is impossible, or compliance could not affect the public health, safety or welfare, or the interference with constitutional rights thereby would be out of all proportion to the benefit to be derived by the public on compliance with the ordinance (Mayor, etc., v. D. D., E. B. & B. R. R. Co., supra; People v. New York Edison Co., supra; City of Buffalo v. N. Y., L. E. & W. R. R. Co., supra; People v. N. Y. C. & H. R. R. R. Co., 159 App. Div. 329; City of Rochester v. Macauley-Fien M. Co., supra; People v. Orange County Road Const. Co., 175 N. Y. 84; Wright v. Hart, 182 id. 334; People ex rel. Knoblauch v. Warden, etc., supra; Health Department v. Rector, etc., supra), and this is the general rule with respect to special regulations made under a general delegation of power. (Fire Department of New York v. Gilmour, 149 N. Y. 453; People v. Kaye, 160 App. Div. 644; affd., 212 N. Y. 407; Health Department v. Rector, etc., 145 id. 32.) No case, however, has been cited, and we have found none, in which the courts have undertaken to review the action of the local legislative body depending on a controverted question of fact with respect to its jurisdiction to enact the ordinance. In such cases it is presumed that the legislators have investigated the facts and in enacting the ordinance have exercised the discretion conferred upon them by the Legislature • in accordance with their determination with respect to the facts and applied what they deemed to be the appropriate remedy. (People v. New York Edison Co., supra ; People v. Klinck Packing Co., supra; People v. Charles Schweinler Press, supra; Fifth Ave. Coach Co. v. City of New York, supra; Mayor, etc., v. D. D., E. B. & B. R. R. Co., supra; City of Rochester v. Macauley-Fien M. Co., supra.) Mandamus only lies to enforce' a clear legal right and it cannot be said that the right is clear where it involves the validity of a statute or ordinance the authority to enact which depends upon the determination of the legislative body with respect to a question of fact. (See People v. Charles Schweinler Press, 214 N. Y. 396.) I am of opinion that it would not only be an extension of established doctrine, but contrary to public policy for the courts to undertake to test the validity of ordinances as a question of fact where there is some evidence to sustain the enactment, for that would subject nearly every ordinance to review in the courts and would make the validity thereof depend upon the finding of a jury on a controverted question of fact on which the enactment was made. Where the validity of an ordinance depends upon facts of which the court cannot take judicial notice, and the uncontroverted evidence shows that there is no basis upon which it can stand, then it may well be declared unreasonable and void; but where a controverted question of fact is presented, there being some evidence to sustain the legislation, it is, I think, the duty of the courts to declare it valid, particularly where, as here, the question is with respect to the practicability and efficiency of a device required to be installed for the public safety as a condition of granting a license for a business which is subject to regulation and license. In the case at bar, the expenditure required for the installation of an oil separator as claimed by the petitioners is not so great considering the dangers sought to be averted and the business to be conducted on the premises as to justify the court in declaring it oppressive. (See Health Department v. Rector, etc., 145 N. Y. 32.) It is manifest that the quantity of gasoline finding its way into the effluent depends upon the care with which the business is conducted. The validity of a statute or ordinance or its applicability is not to be decided upon what has been or is being done, but what may be done, and not by its effect in a particular case, but upon a consideration of its general purpose and its efficacy to effect that end. (City of Rochester v. West, supra; City of Rochester v. Gutberlett, supra; City of Rochester v. Macauley-Fien M. Co., supra.) While a question of fact arises with respect to the efficiency of oil separators and with respect to the danger from fire and to health arising from gasoline in the public sewers, yet it appears by uncontroverted evidence that a separator, if used, will tend to minimize these dangers,, and, therefore, I think, as matter of law, the ordinance must be sustained, even if it be regarded as an ordinance merely.

It follows that the order should be reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.

Clarke, P. J., Dowling, Page and Davis, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs. 
      
       See, also, Cosby’s Code of Ordinances (Anno. 1914), 396, § 376.— [Rep.
     