The petitioner installed an oil burning furnace and in connection therewith a tank capable of holding two hundred and seventy-five gallons of oil. The Fire Commissioner of the city of New York issued a permit for the storage of oil in the tank. The Commissioner of Buildings of the borough of Brooklyn filed a notice of violation and served upon the owner of the building a notice to remove the oil burner and tank because they were installed without application to the Department of Buildings and without inspection or tank test as required by that department. A mandamus order has been issued for the cancellation of the violation.
Prior to 1933 the charter of the city of New York conferred upon the Superintendent of Buildings "exclusive jurisdiction and charge, subject to and in accordance with the general rules and regulations to be established by the board of standards and appeals, of the construction, alteration, structural changes in and removal of buildings and other structures erected or to be erected within such borough * * *." (§ 406, as amd.) The jurisdiction was broad and at times encroached upon the functions and jurisdiction of the Fire Commissioner. His functions and duties fell, generally, into two groups: First, those connected with the extinguishment of fires; second, those connected with the prevention of fires. Many of the functions and duties of the Fire Commissioner *Page 501 in the field of fire prevention concerned the physical structure of buildings. They included the installation and maintenance of fire alarm systems and fire extinguishment equipment; the means and adequacy of exit, in case of fire, and the use and occupancy of buildings. (Charter, § 774.) He was empowered to inspect any building or structure and to order the remedying of any condition found to exist therein "in violation of any law or ordinance or rule or regulation of the board of standards and appeals in respect to fires or to the prevention of fires or in respect to any of the matters mentioned in section seven hundred and seventy-four;" to order the installation of fire alarm systems and fire extinguishment equipment and the maintenance or repair thereof or the construction of adequate and safe exits. He might even order any building or structure which, in his opinion, was inadequately protected against fire perils to be vacated or to be condemned and removed. (§ 775.) Since in other matters the Building Department was also charged with the duty of inspection of buildings and their construction and alteration, there was here dual control of the administration of law and ordinances relating to the physical structure and maintenance of buildings with all the administrative objections and difficulties inherent in dual or divided control. (Cf. People v. Kaye, 212 N.Y. 407; People v. 131 Boerum St. Co., 233 N.Y. 268; UnitedStates Trust Co. v. Blake, 234 N.Y. 273.)
The Legislature, by chapter 764 of the Laws of 1933, undertook to remedy these evils by a complete revision of the provisions of the charter in respect to the Department of Buildings. Now the Commissioner of Buildings in each borough is vested with "exclusive jurisdiction" to examine and approve or disapprove all plans for buildings, structures and alterations within the borough, and with exclusive power to enforce all laws and ordinances, rules and regulations of the Board of Standards and Appeals in respect of enumerated matters where previously *Page 502 that power had been vested in or shared by the Fire Commissioner. The enumeration is careful. In the same language used previously in the charter in conferring powers upon the Fire Commissioner, the new law conferred exclusive power upon the Commissioner of Buildings. Here there was no room for judicial construction. The Fire Commissioner was divested of all powers in respect to prevention of fires and danger to and loss of life and property in connection with the physical structure and alteration of buildings and their use and occupancy. (§ 407.)
It is to be noted, however, that elsewhere the powers of the Fire Commissioner were not touched by those sections. The enumeration of powers transferred to the Commissioner of Buildings did not include "the storage, sale, transportation or use of combustibles, chemicals and explosives," or "the investigation of the cause, circumstances and origin of fires and the suppression of arson." It is significant, too, that where the powers of the Fire Commissioner extended not only to buildings and structures but also to "vessels," the power conferred upon the Commissioner of Buildings did not extend to vessels. Quite evidently it was not the intention here to vest in the Commissioner of Buildings under the broad term of the "prevention of fires and danger to and loss of life and property therefrom" the powers of the Fire Commissioner omitted from the enumeration. We need not here resort to the maxim "expressio unius estexclusio alterius." In the absence of language not open to any other construction we may not impute to the Legislature an intention to vest in the Commissioner of Buildings a jurisdiction in matter so foreign to his other functions as "the storage,sale, transportation or use of combustibles, chemicals and explosives" or the "investigation of the cause, circumstances and origin of fires and the suppression of arson" or the control of vessels which may be "a menace to shipping or to property or the water front of the city." *Page 503
In this proceeding, it is true that the Commissioner of Buildings does not assert jurisdiction over the origin of fires and the suppression of arson or even over "vessels" or the "sale" and "transportation" of chemicals; but apparently the court is now holding that only the Commissioner of Buildings has such jurisdiction. He asserts jurisdiction now only over the installation in buildings of tanks, which have not been tested by the Department of Buildings. In so far as the installation of tanks in a building may involve structural alterations in the building, the assertion of jurisdiction by the Commissioner of Buildings is not subject to challenge. There the powers of the Building Department are plenary, and are not restricted by any subsequent enumeration of powers. The Commissioner of Buildings, however, goes further and asserts complete and exclusive jurisdiction over the testing of any receptacle to be used in a building even though such use involves no change or alteration in the building, and upon the argument of the appeal, counsel stated that the only question intended to be presented to the court is whether the jurisdiction of the Fire Commissioner in the field of the "storage, sale, transportation or use of combustibles, chemicals and explosives" has been transferred to the Building Department by implication, though omitted from the enumeration of powers transferred to that department.
The implication arises, it is said, from the fact that this power was, prior to 1933, exercised by the Fire Commissioner through the Bureau of Fire Prevention, and that chapter 764 of the Laws of 1933 provides in part: "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 transferred to the department of buildings. All the powers and duties now conferred by law upon the fire commissioner * * * and enforced through such bureau are transferred to and shall be exercised by the *Page 504 commissioner of buildings in the borough for which he has been appointed." (§ 408.)
The statute must be read as a whole. On its face a section entitled "Bureau of fire prevention; transfer of employees" is intended as an administrative measure. It should not be construed as an additional grant of powers which have been omitted, by evident intent and not by inadvertence, from the careful enumeration of powers in the preceding grant. In his opinion Judge O'BRIEN traces the history of the Bureau of Fire Prevention and its Department or Division of Combustibles. Always it appears that that department was a recognized entity within the Bureau of Fire Prevention. Perhaps the duties of the Fire Marshal also were performed by a similar department within the Bureau, though that is not made clear. (Cf. Greater New York Charter, § 779.) The powers and jurisdiction of public officers should be clearly defined. They should not be left to doubtful implication based upon administrative details not disclosed by the statute. A person reading the statute alone would find in its language no indication of any intent to divest the Fire Commissioner of powers not expressly granted to the Commissioner of Buildings. We may not impute to the Legislature any intention to render nugatory its previous enumeration of powers granted by resort to a section which is intelligible only to those persons who are acquainted with the details of the administration of the Fire Department, nor to leave in the air the jurisdiction over those matters omitted from the careful enumeration of the powers transferred from the Fire Commissioner to the Commissioner of Buildings.
The evident purpose of section 408 is to transfer to the Department of Buildings the employees of the Fire Prevention Bureau, since the statute had specifically transferred to the Department of Buildings almost all the duties performed by those employees. The transfer of the powers "enforced through such bureau" must reasonably *Page 505 be confined to those powers connected with the jurisdiction of the Department of Buildings conferred by the earlier sections. It should not be construed as an enlargement of that jurisdiction.
Under this limited application of section 408, it appears that the Commissioner of Buildings is vested with exclusive jurisdiction over all buildings and alterations, with all the powers enumerated in section 407, and by transfer of the employees of the Bureau of Fire Prevention of the Fire Department is furnished with the means of carrying out its powers. The Fire Department is left with the jurisdiction which the Legislature carefully omitted from the enumeration of functions and powers conferred upon the Building Department, including the test of storage tanks for combustibles.
Order should be affirmed.
CRANE, Ch. J., HUBBS, CROUCH and FINCH, JJ., concur with O'BRIEN, J.; LEHMAN, J., dissents in opinion, in which LOUGHRAN, J., concurs.
Orders reversed, etc. *Page 506
[EDITORS' NOTE: THIS PAGE IS BLANK.] *Page 507