THE NEW YORK SUPPLEMENT VOLUME 212 (125 Misc. Rep. 801) CITY OF BUFFALO v. NEW YORK CENT. R. CO. (Supreme Court, Special Term, Erie County. November 2, 1925.) 1. Constitutional law 38-Municipal corporations 625-Constitutionality of statute and reasonableness of ordinance tested by what may be. done under it. Constitutionality of a statute, as well as reasonableness of an ordinance, ought to be tested, not only by what is, but what may be, done under it. 2. Constitutional law 70(3)—Reasonableness of statute may not be inquired into by courts. The reasonableness of a statute may not be inquired into by the courts. 3. Municipal corporations 63(2)—Reasonableness of ordinance, passed pursuant to general authority of Legislature, may be inquired into. The reasonableness of an ordinance may not be inquired into when passed pursuant to specific authority of the Legislature, or, if approved by the Legislature after adoption by local city government; but may be inquired into if passed pursuant to general authority of Legislature, unless ratified by legislative action after adoption by local government. 4. Municipal corporations 590-Specific and general authority to enact ordinance defined. Legislative authority to enact an ordinance, to be specific, must define its details and mode of enforcement, and such authority is general when the manner of exercising it is not specified, or when the ordinance has not been expressly ratified by the Legislature. 5. Municipal corporations ~63(2)—Reasonableness of smoke ordinance may be inquired into. The legislative authority for the passage of a smoke ordinance by the city of Buffalo, as found in the Charter of the City of Buffalo, § 13, subd. 5, is general, and the reasonableness of smoke ordinance passed pursuant thereto may be inquired into. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes 212 N.Y.S.-1 6. Evidence ~20(2)—Judicial notice taken that defendant railroad is interstate carrier subject to federal control. It is a matter of common knowledge, and court may take judicial notice of fact, that the New York Central Railroad is an interstate carrier subject to federal control. 7. Evidence ~20(2)—Matter of common knowledge that an immense amount of money would be required for railroad to comply with smoke ordinance. It is a matter of common knowledge that an immense amount of money would be required to finance the operations commanded by smoke ordinance of city of Buffalo, providing that it is unlawful for any railway to operate trains by use of locomotive engines propelled by steam power, or by the use of any other power-producing machine or device which emits smoke or steam. 8. Evidence 20(2)-Matter of common knowledge that it would require more than a day or even a month to prepare plans to comply with smoke ordinance. It is a matter of common knowledge that more than a day or even a month would be required to prepare plans to comply with a smoke ordinance which prohibited railroad from operating trains by use of locomotives or power-producing machines which emitted smoke or steam. 9. Evidence~20(2)—Common knowledge that railroad had no means of financing operations required by smoke ordinance, except by collecting from patrons of road in return for service or borrowing upon its bonds. It is matter of common knowledge that railroad company had no means of financing operations required by smoke ordinance of city of Buffalo except by collecting the funds from patrons of road in return for service or borrowing upon its bonds. 10. Evidence 44-Common knowledge that consent of Interstate Commerce Commission must be obtained before railroad can float a bond issue. It is common knowledge that consent of Interstate Commerce Commission must be obtained before railroad can float a bond issue. 11. Pleading 6-Facts of which court has taken judicial notice may be treated as if embodied in complaint. Facts of which court has taken judicial notice may be treated as if embodied in complaint. 12. Evidence 20 (2)—Court cannot take judicial notice of number of trains operated daily in city. Court cannot take judicial notice that railroad operates more than 200 trains daily in city of Buffalo, although everybody knows that many trains are operated. 13. Commerce 58-Constitutional law 241-Municipal corporations 625-Smoke ordinance held void. Smoke ordinance of the city of Buffalo, passed pursuant to Charter, § 13, subd. 5, providing that it shall be unlawful for any railroad to For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes (212 N.Y.S.) operate trains propelled by steam power or other power producing machines emitting smoke or steam, on penalty of $250 for each offense, held unreasonable, a denial of the equal protection of laws, and an unauthorized interference with interstate commerce. 14. Constitutional law ~70(3)-Question of policy in enacting ordinance is a matter for wisdom of city government rather than for regulation of courts. Question of policy in the enactment of ordinance is a matter for wisdom of city government rather than for regulation of courts. Action by the City of Buffalo against the New York Central Railroad Company. From an order denying defendant's motion to dismiss plaintiff's complaint, defendant appeals. Reversed. Frederic C. Rupp, of Buffalo, for plaintiff. Rann, Vaughan, Brown & Sturtevant, of Buffalo, for defendant. CROSBY, J. This is an appeal from an order of the City Court of Buffalo denying defendant's motion to dismiss plaintiff's complaint for alleged failure to state a cause of action. The action was commenced in City Court to collect $250, being one day's penalty for defendant's alleged violation of what has been called on the argument and the briefs herein a "Smoke Ordinance.” The complaint alleges, among other things: "That, pursuant to the power vested in the city of Buffalo (plaintiff) by its charter and by the General City Law, there was duly enacted prior to the 1st day of January, 1922, and on that day, and at all times hereinafter mentioned was in force in the city of Buffalo, the following ordinance," etc. The ordinance is then set forth in full. It contains two paragraphs, the first of which provides, among other things, that it shall be the duty of every railroad company operating locomotive engines within the city limits of Buffalo "to file with the city clerk thereof, on or before January 1, 1922, plans for the abolishment of steam locomotives * * which emit smoke or steam, * * and for the substitution of electricity, or some other power than steam." The second paragraph of the ordinance provides, among other things, that— "On and after the first day of January, 1923, it shall be unlawful for any railway to operate trains by the use of locomotive engines propelled by steam power, or by the use of any other power-producing machine or device which emits smoke or steam," etc. The ordinance then goes on to provide that the defendant pay a penalty of $250 for each offense; and a like penalty is visited upon each of defendant's employees or agents in charge of a locomotive used in violation of the ordinance. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes |