Matter of Baerenklau v. Thatcher

*496 O’Brien, J. Subsequent to the enactment of chapter 764 of the Laws of 1933, these petitioners installed for the owner of certain premises in Brooklyn an oil burning furnace and a tank capable of holding two hundred and seventy-five gallons of fuel oil. The Fire Commissioner of the City of New York, acting through the “ Bureau of Fire Prevention — Division of Combustibles,” inspected the oil burner and tank and on October 4, 1934, issued a permit to the owner to keep two hundred and seventy-five gallons of oil on bis premises. The Commissioner of Buildings of the borough of Brooklyn notified the owner of the existence of a violation for the reason that no tank test had been made as required by the Department of Buildings. The courts below have issued an order of mandamus commanding the Commissioner of Buildings to cancel the violation. The question of law is whether, since the enactment of chapter 764 of the Laws of 1933, jurisdiction relating to the storage of combustibles is vested in the Fire Commissioner or in the Commissioner of Buildings. Prior to the enactment of chapter 899 of the Laws of 1911 three bureaus had existed in the Fire Department by virtue of section 727 of the Greater New York Charter (Laws of 1901, ch. 466) — a bureau charged with the duty of preventing and extinguishing fires, another bureau charged with the execution of all laws relating to the storage, sale and use of combustible materials, and a third bureau charged with investigation of the origin and cause of of fires. During the year 1908 the Commissioner of Accounts, by direction of the Mayor, made an investigation of the methods of the Fire Department. In the course of that investigation an engineer representing the Merchants Association reported that in his opinion the Bureau of Combustibles should become a subdivision of the Bureau of Fire Prevention. In the year 1911 section 727 of the Greater New York Charter was amended by chapter 899 of the laws of that year. By this section, as so amended, the Fire Commissioner was authorized to *497 organize the department into such bureaus as may be convenient and necessary, but only two bureaus were mandatorily established — the “ fire bureau ” for the extinguishment of fires and “ a bureau of fire prevention, which under the direction of the commissioner shall perform the duties and exercise the powers in relation to the prevention of fires devolved upon the commissioner by this act or by any other law or ordinance.” The effect of this amendment is the abolition of the former Bureau of Combustibles. Assuming that the Fire Commissioner was vested with power to re-create a Bureau of Combustibles, the record in this proceeding displays strong proof that, when chapter 764 of the Laws of 1933 became effective, no such bureau had been established. The permit issued by the Fire Commissioner in this proceeding is entitled “ Bureau of Fire Prevention — Division of Combustibles, Combustible Permit,” and the Fire Commissioner’s affidavit informs us that, when the Fire Prevention Bureau was created, the Bureau of Combustibles became a department of the Fire Prevention Bureau. His affidavit also states that, prior to the issue of this permit, the inspection was made by the Division of Combustibles. We think, therefore, that not only by force of chapter 899 of the Laws of 1911 the former Bureau of Combustibles was abolished, but also, by the facts appearing in this record, that the Fire Commissioner had not availed himself of any authority to re-create a Bureau of Combustibles. The old Bureau of Combustibles became part of the Bureau of Fire Prevention and all power formerly residing therein had vested in the Bureau of Fire Prevention when chapter 764 of the Laws of 1933 became effective. This new statute (§ 1) provides by section 408: “ Bureau of fire prevention; transfer of employees. The bureau of fire prevention of the fire department of the city of New York established by section seven hundred and twenty-seven of the Greater New York Charter is hereby trans *498 ferred' to the department of buildings. All the powers and duties now conferred by law upon the fire commissioner of the city of New York and enforced through such bureau are transferred to and shall be exercised by the commissioner of buildings in the borough for which he has been appointed.” The same section transfers from the Bureau of Fire Prevention to the Department of Buildings all officers and employees, all appropriations and all records, thus leaving the Bureau of Fire Prevention powerless to function. Section 416-a of this statute also provides that all laws which are inconsistent with any of its provisions shall be deemed not to apply. Respondent argues that the provisions of section 774, subdivisions 2 and 5, and section 775, subdivision 5, of the Greater New Charter are not repugnant to chapter 764 of the Laws of 1933 and that the Legislature, by omitting to make some new provision in chapter 764 of the Laws of 1933 contrary to them, purposely left them in effect. Section 774, subdivision 2, as amended by chapter 503, Laws of 1916, empowered the Fire Commissioner to enforce all laws and ordinances and the rules and regulations of the Board of Standards and Appeals in respect of “ the storage, sale, transportation or use of combustibles, chemicals and explosives ” and subdivision 5 of the same section confers a like power in respect of “ the investigation of the cause, circumstances and origin of fires and the suppression of arson.” Section 775, subdivision 5, empowers the Fire Commissioner to “ cause any vessel moored to or anchored near any dock or pier in the city to be removed to and secured at such place in the harbor as shall be designated by the commissioner, provided such vessel shall be on fire or in danger of catching fire or is, by reason of its condition, or the nature of its cargo, a menace to shipping or -to property or the water front of the city.” Part of the power conferred upon the Fire Commissioner by section 775, subdivision 5, could, in the event that a vessel should *499 be on fire or be in danger of catching fire from a conflagration raging in the vicinity, be enforced through the Fire Bureau which survived the abolition of the Bureau of Combustibles by chapter 899 of the Laws of 1911, and the residue of the power conferred by section 775, subdivision 5, as well as all the authority vested in the Fire Commissioner by section 774, subdivision 2, could be enforced by him only through the Bureau of Fire Prevention. Some weight may, however, be attached to respondents’ argument when they point out the specific enumeration in chapter 764 of the Laws of 1933 of many of the powers formerly vested in the Fire Commissioner and transferred by that act to the Commissioner of Buildings and the omission from the new statute of the particular powers which had been conferred upon the Fire Commissioner by section 774, subdivisions 2 and 5, and by section 775, subdivision 5, of the Greater New York Charter, but the Fire Commissioner’s jurisdiction over “ the storage, sale, transportation or use of combustibles, chemicals and explosives ” residing in him by virtue of section 774, subdivision 2, of the Greater New York Charter could be enforced only through the Bureau of Fire Prevention subsequent to the abolition of the Bureau of Combustibles by chapter 899 of the Laws of 1911. The omission specifically to enumerate in chapter 764 of the Laws of 1933 this and other particular powers is, as we think, outweighed by the sweeping, all-inclusive provision in section 408 of the new statute by which the Bureau of Fire Prevention and all its powers were transferred to the Department of Buildings. Conceivably the act was not drawn so as to reflect the exact legislative intent. A strong argument could be addressed to the Legislature tending to prove a better administrative policy in retaining within the jurisdiction of the Fire Department the enforcement of laws relating to “ the storage, sale, transportation or use of combustibles, chemicals and explosives.” That body is now in session, *500 and until it explicitly enacts that the Fire Commissioner shall retain this power as an exception to the powers transferred to the Commissioner of Buildings, we feel that this court would encroach upon the legislative function if we should ignore the comprehensive language by which the Legislature directed the transfer of the Bureau of Fire Prevention with all its powers to the Department of Buildings. The order of the Appellate Division and that of the Special Term should be reversed and the motion for mandamus denied, with costs to appellant in all courts.