This defendant was charged with unlawfully operating two steam boilers carrying over ten pounds of steam, to wit, one hundred and thirty pounds of steam, located on two scows anchored in the center of the East river opposite East 38th street in the city of New York.
It appears that a New Jersey corporation, known as the R. G. Packard Company, under a contract with the United States government, was engaged in the removal of a small island called the "Man of War Rock," which was an obstruction to the navigation of the East river.
The defendant was in the employ of this company as a fireman, having over him an engineer in charge of these boilers. *Page 69 In the prosecution of this work these scows were anchored about one hundred feet apart, each having on board a boiler that generated steam for the purpose of rock drilling.
It was proved that the defendant was at times left in charge of one of these boilers, and that he held no certificate as required by section 343 of the present charter of the city of New York (L. 1901, ch. 466), the material portion of which reads as follows: "It shall not be lawful for any person or persons to operate or use any steam boiler to generate steam except for railway locomotive engines, and for heating purposes in private dwellings, and boilers carrying not over ten pounds of steam and not over ten horse power, or to act as engineer for such purposes in the city of New York without having a certificate of qualification therefore from practical engineers detailed as such by the police department, such certificate to be countersigned by the officer in command of the sanitary company of the police department of the city of New York and to continue in force oneyear, unless sooner revoked or suspended."
We are unable to agree with the learned counsel for the defendant and appellant that the East river at this point by error of description in the existing charter is not included within the limits of the present city of New York.
The first and second sections of the charter read together make it clear that the outlying municipalities were consolidated with the old city of New York as it existed on the first day of January, 1898.
The East river as it flows between the former cities of New York and Brooklyn was a part of the city of New York as it existed prior to the consolidation.
It follows that the Court of Special Sessions of the city of New York had jurisdiction to try this defendant, and the case must be considered on the merits.
The question presented by this appeal requires the construction of section 343 of the present charter of the city of New York and incidentally of section 342 which treats of the inspection of steam boilers and the issuing of a certificate to the effect that the boiler has been subjected to a proper test. *Page 70
It appears that section 343 was in substance section 311 of the Consolidation Act which was enacted in 1882. We have here, therefore, no new power conferred upon the police department of the city of New York, but one that has existed for many years.
The question is narrowed down to the inquiry whether the steam boilers referred to in the section under consideration are those permanently located in the city of New York, or include all boilers on vessels of every description navigating the waters of the port of New York within the limits of the city of New York not embraced within the inspection laws of the United States government.
If it be true that the police department of the city of New York is possessed of any such power and rests under so great a responsibility, it does not appear by this record that it has ever been generally exercised.
Congress has enacted that all boilers on steam vessels navigating any waters of the United States, which are common highways of commerce, or open to general or competitive navigation, excepting public vessels of the United States, vessels of other countries, or boats propelled in whole or in part by steam for navigating canals, shall be subject to inspection.
It has also provided that every vessel propelled in whole or in part by steam shall be deemed a steam vessel within the meaning of this title, and that the local inspectors shall inspect all boilers of steam vessels before the same shall be used and once at least in every year thereafter. (U.S.R.S. §§ 4399, 4400, 4418, p. 857 et seq.)
It thus appears that a large class of vessels navigating the waters of the port of New York, within the jurisdiction of the city of New York, are not covered by the inspection laws of the Federal government. In this class are boats propelled in whole or in part by steam for navigating the canals, and a large number of vessels which are not propelled in whole or in part by steam, but have placed upon them boilers for hoisting or other purposes. In this class are barges, dredges, elevators *Page 71 and other craft which are towed from point to point as necessity requires.
It would seem that if the legislature intended to confer upon the police department of the city of New York jurisdiction over this large class of vessels that would require a thoroughly-organized and equipped force to properly discharge the duties involved, it would have provided a scheme in detail very different from the vague and general language found in the section under consideration.
An examination of section 342, providing for the inspection of boilers, aids in the construction of section 343. Section 342 provides in part as follows: "Every owner, agent or lessee of a steam boiler or boilers in use in the City of New York shallannually, and at such convenient times and in such manner and in such form as may, by rules and regulations to be made therefor by the police commissioner be provided, report to said departmentthe location of each steam boiler or boilers, and thereupon, and as soon thereafter as practicable, the sanitary company, or such member or members thereof as may be competent for the duty herein described, and may be detailed for such duty by the police commissioner shall proceed to inspect such steam boilers, and all apparatus and appliances connected therewith."
This section evidently contemplates the inspection of such steam boilers as are permanently in use in the city of New York, and provides that the location of each boiler shall be ascertained and thereafter they shall be annually inspected.
In view of these provisions we turn to section 343, under which this defendant has been convicted, and find the provisions as to the issuing of certificates to engineers who are qualified to operate steam boilers in the city of New York. Neither of these sections contains specific language that indicates the clear intention of covering boilers afloat on vessels navigating the waters of the port of New York that may be here to-day and away to-morrow.
It is argued that a large number of boilers located on vessels in the port of New York, not covered by the United *Page 72 States inspection laws, should be subject to annual inspection, and the engineers operating the same required to hold certificates as to their proper qualifications. Neither the record nor the briefs of counsel contain any information as to existing laws of the state or the United States, if any there are, in regard to this class of boilers.
We are of opinion that the defendant, in operating these boilers in the middle of the East river within the waters of the port of New York, under the circumstances disclosed, while in the employ of a New Jersey corporation, having its plant temporarily here for the purpose of performing a contract into which it had entered with the United States government, was not liable to arrest under section 343 of the present charter of the city of New York, he not having a certificate as to his qualifications issued by the police department of said city.
The questions presented by this appeal are by no means free from difficulty and call for the construction of a statute which is both general and obscure. The situation requires the prompt attention of the legislature.
The judgments of the Court of Special Sessions of the first division of the city of New York and of the Appellate Division affirming the same should be reversed.
PARKER, Ch. J., GRAY, O'BRIEN, HAIGHT, VANN and CULLEN, JJ., concur.
Judgment reversed and defendant ordered discharged.