Consolidated Edison Co. v. Murtagh

Per Curiam. This is a submitted controversy as to whether the Magistrate’s Court has jurisdiction to entertain a prosecution for the discharge of dense smoke in violation of section D26-1.0 of chapter 26 of the Administrative Code of the City of New York and paragraph 1.1.1 of subdivision 1.1 of section 1 of the Bules and Begulations of the Bureau of Smoke Control. The stipulation poses the case of a proceeding brought in the Magistrate’s Court without any recourse to or action by the smoke control board. It is the contention of plaintiff that the law vests the smoke control board with primary jurisdiction to hear and determine charges of smoke violations and requires resort to the administrative procedure set forth in the rules and regulations before any criminal prosecution may be commenced. The defendant contends, on the other hand, that the penal provisions of the code vest the Magistrate’s Court with jurisdiction to hear and determine a charge of violation of the codes and rules in the first instance. There is undoubtedly force in the argument of plaintiff that the creation of the smoke control board and its area of authority, after seventy-five years of unsatisfactory experience in contending with the smoke menace by prosecutions instituted by the board of health, represents a new approach to the problem through continuous regulation and correction by an administrative board of experts instead of through spasmodic prosecutions before shifting individual judges in the Magistrate’s Court. Certainly the contemplation of the law is continuing regulatory and corrective treatment by persons professionally and technically qualified to design and execute a corrective program. Whether it was also the contemplation to make the jurisdiction of the smoke control board primary and bar a prosecution in the Magistrate’s Court in the first instance is the question before us. We are unable to say that such was the intention. The indications are to the contrary. Subdivision k of section D26-1.0 of the Administrative Code, as added by the local law (Local Laws, 1949, No. 5 of City of New York), provides for conviction and punishment for violation of any of the rules or regulations of the smoke control board, as well as of any order or decision of the board or its director. Section 18 of the rules and regulations makes anyone who violates any of the rules liable for the penalties imposed by the law. [223] It is true that the regulations are elaborate in their definitions of what are allowed and not allowed in the way of smoke emissions and in their enforcement provisions. Plaintiff appropriately points to these provisions, and particularly to paragraph 1.4.1 of subdivision 1.4 of section 1 of the regulations which provides that when any emission in violation of any of the rules is found by the director of the smoke control board, he shall order the offending owner or operator to abate the violation, giving him an opportunity to make the adjustments, additions or alterations to the equipment which are expected to be effective for abating the violation, and to section 19 of the rules which provides the appellate machinery for reviewing the decisions of the director before the board. Plaintiff claims that it is entitled to have the charge of a violation take this course and that the course may not be short-circuited by a criminal prosecution. It would have been simple enough for the Legislature to have made the jurisdiction of the board primary or exclusive and to confine the jurisdiction of the Magistrate’s Court if it had wished to accomplish that purpose. There is no such clear limitation of the jurisdiction of the Magistrate’s Court in the law and rationalization is hardly permitted as a substitute. Both in the law and in the regulations it is made a penal offense to violate any of the regulations. Note, it is not merely a violation of an order or decision of the board which is punishable, but a violation of any rule or regulation. On the face of the law, therefore, an emission in violation of the regulations is prosecutable without any finding or action of the board. It is our conclusion that the statutory pattern and provisions do not oust or confine the criminal jurisdiction, as plaintiff contends, and that judgment should be given for the defendants, holding that upon the submitted facts the Magistrate’s Court has jurisdiction of the subject of the prosecution.