People v. Bevevino

Jacob I. Goodstein and Isadore Zamore for defendant. Denis M. Hurley, Corporation Counsel (Arthur Goldsmith and Bernice P. Rogers of counsel), for plaintiff. violation. In so doing it is exercising the legislative power committed to its discretion by the People through the Constitution. The substantive portion of the legislation is found in that part of the statute which declares the violation of the rules and regulations to be a crime and prescribes the punishment for such violation." (Emphasis supplied.) That is what the council has done here. Conforming to the objectives of the Local Law, the board of smoke control has adopted a comprehensive scheme of regulation and control of air pollution. The skeleton of statutory command has been clothed with the flesh and blood of administrative rules, including paragraph 1.1.1 of subdivision 1.1 of rule 1 here questioned, which prohibits the emission of "dense smoke" and rule O, "Definitions," defining "dense smoke." Paragraph 1.1.1. (supra) and its exception (which is not interposed as a defense by this defendant) read as follows:

"No person shall cause, suffer, or allow dense smoke to be emitted into the open air from any fuel burning equipment, internal combustion engine, locomotive, marine craft, motor vehicle, open fire, premises or vessel, within the City of New York or upon waters within the jurisdiction of said city.

"EXCEPTION

"1.1.1.1 When a fire box is being cleaned or a new fire is being built in a cold boiler or furnace, dense smoke may be emitted for a period of four (4) continuous minutes."

Rule O, Definitions (supra) defines "dense smoke" as "Smoke so dense that it cannot be seen through at the point of emission." The defendant does not attack the reasonableness of the foregoing rules. In the absence of such attack and knowledge as to the factual background of the rules, there is a presumption binding on this court, of the existence of facts which, if known, would establish that they represented a reasonable exercise of the police power (Pacific States Co. v. White, 296 U. S. 176, 185 [1935]). There clearly is no basis for a finding of unreasonableness (see People v. Cunard White Star, Ltd., 280 N.Y. 413, 417, supra, [upholding prohibition of the discharge of smoke, avoidable by the use of modern appliances and of methods that are practicable, under Sanitary Code, § 211, supra (prohibiting dense smoke)]; People v. Murray, 174 Misc. 251, supra, and cases there cited, on the definition of "dense smoke"; cf. Oswald v. Christy, supra, [action for declaratory judgment; holding the rules to be "well within the objectives" and granting hearing in such action, to determine whether the control exercised by and in pursuance of the rules was reasonable and proper]). In promulgating the foregoing rules, the board of smoke control has not created the offense of emitting dense smoke, but merely laid down the rules and regulations, pursuant to statutory direction, to which the penalties declared by the council shall attach. It is clear from the foregoing that the rule prohibiting dense smoke (par. 1.1.1., supra) was issued by the board of smoke control pursuant to the constitutional command of the council, and that it is a valid and substantive offense by enactment of the Local Law No. 5 of the City of New York for the year 1949 (Administrative Code, § D26-1.0, supra). Accordingly, the motion to dismiss the complaint is denied. The defendant may plead or stand trial, as required by section 330 of the Code of Criminal Procedure.