Three violations by defendant of the provisions of section 211 of the Sanitary Code of the City of New York are charged. The first alleges that steamship Queen Mary, while docked at Pier 90, North river, discharged dense smoke; the second that steamship Laconia, while docked at Pier 54, North river, also discharged dense smoke; the third that dense smoke was discharged from a chimney owned by defendant on Pier 90, North river.
Section 211 provides: "No person shall cause, suffer or allow dense smoke to be discharged from any building, vessel, stationary or locomotive engine or motor vehicle, place or premises within the city of New York or upon the waters adjacent thereto, within the jurisdiction of said city. * * *."
The People proved the emission of dense smoke from both the ships and from the chimney on the pier. This fact is not denied. On the trial defendant's counsel stated in respect to the ships: "I have not denied that we get smoke. We know we do. We cannot help it. We always do. *Page 422 The discharge of smoke, under those circumstances, was from our point of view unavoidable and accidental in the sense that it simply could not be prevented by the exercise of the greatest amount of care."
The Queen Mary and the Laconia are both oil burners. The boilers on the Queen Mary were started about five o'clock in the morning, according to the testimony of defendant's witness, and the ship was still tied to the pier as late as eight-forty that morning. She sailed that day at ten-thirty. Heavy black smoke was discharged, according to the observation of the People's witness, from seven-twenty-two to eight-thirty-five. Here is testimony by defendant's witness: "Q. You cannot actually control the fire so as not to have smoke? A. We do that. Q. How do you do it? A. By lighting up one at a time. Q. And with only one or two boilers lit up, you do not have dense smoke, is that right, under normal conditions? A. No, we do not. But when she is getting ready for sea, there will come a time when you have a great demand for steam, that is the time when she is leaving port. Q. And how many boilers do you light up then? A. Every oneof them. Q. And all at about the same time, isn't that right? A.About the same time. * * * Q. Suppose you only started one boiler at a time, you wouldn't have as much dense smoke coming from those stacks as if you started them all at the same time, would you? A. No. Q. So, therefore, to that extent, you can control it? A. We can control the quantity that would be emittedat that time." The same witness testified that the ship starts getting up steam three or four hours before it sails. Another witness for defendant testified that, after the boilers on QueenMary are steamed, his duty is to watch the smoke and that he did see smoke that day, sometimes black and sometimes thick brown. He reported to his superior that the funnel was "smoking heavily." The People are correct in their argument that the emission of this dense smoke was not unavoidable but could have been controlled. The practice pursued by defendant is admitted to be cheaper and more convenient. In respect to steamship *Page 423 Laconia, the evidence is clear in respect to the emission of dense, black smoke between nine-thirteen and nine-eighteen A.M. The practice regarding the lighting of the burners on this ship is the same as that prevailing on the Queen Mary.
Appellant's brief presents no argument respecting the correctness of the conviction in connection with the emission of smoke from the chimney on the pier.
The argument that this enactment tends to burden foreign commerce to such an extent as to render it unconstitutional cannot be sustained. First of all, it is a health ordinance and, in respect to such matters and many others, a State possesses extensive police power, even though interstate or foreign commerce may be directly involved. (Olsen v. Smith,195 U.S. 332; Shafer v. Farmers Grain Co., 268 U.S. 189 at p. 199;People v. Rueffer, 279 N.Y. 389, and cases therein cited at p. 392.)
The judgment should be affirmed.
CRANE, Ch. J., HUBBS and RIPPEY, JJ., concur with LEHMAN, J.; O'BRIEN, J., dissents as to the steamships in opinion in which LOUGHRAN and FINCH, JJ., concur.
Judgment accordingly. *Page 424