79 N.Y.S. 449 | N.Y. App. Div. | 1908
This action was commenced in the municipal court of the city of Buffalo to recover a penalty of the defendant for selling meats without having procured a license or permit therefor, as required by the ordinances of said city. The charter of the city (chapter 105, Laws 1891) requires the common council to enact ordinances (title 2, c. 1, § 17) “to license and regulate plumbers, auctioneers, butchers, hawkers, peddlers,” etc., and “to regulate * * * the sale of meats, fish, and vegetables.” The common council of the city established four markets located in different parts of the city, and intended to localize as far as possible the sale of perishable food
The principles underlying this controversy have received animated and learned consideration from the courts. The right of the individual to carry on any^ gainful, lawful occupation without municipal interference, unless conducted in a manner detrimental to the public, is guarantied to him as one of his inalienable prerogatives. On the other hand, the right of the legislature, and, by its delegation, the municipality, to enact laws or ordinances for the preservation of the public health, even though individual loss results, is a necessary power incident to the government of cities. The axiom, “Salus populi lex supremo est,” is more than a mere sentiment, and has become one of the props of the police power; an elastic mantle, whose ample folds cover much municipal legislation which finds no other justification. Between these two clashing principles it is often difficult to determine when the action of the municipality transcends its powers and transgresses upon the rights of the individual. In the present case the city has established certain markets for the benefit of the public. It provides and maintains booths and stands therein, and necessarily a large outlay is incurred in their operation and maintenance. It exacts a rental for their use, and, in order to concentrate the traffic in these markets, and to equalize the expense of their maintenance with that of carrying on the business outside, and to cover the extra cost of the supervision needed over those conducting the meat "business in other portions of the city, a license fee of $15 is imposed. This seems a reasonable sum, and is a license, rather than a tax. 1 Dill. Mun. Corp. (3d Ed.) §§ 115, 358; Ash v. People, 11 Mich. 347, 83 Am. Dec. 740. The right of the municipality to impose the fee and require the license for the public good, we think is clear; but the contention of the appellant is that the power of determining upon whom the privilege shall be conferred rests arbitrarily with the common council. Merit, or the lack of it; whether
We will refer to a few of the authorities which we urge tend to-uphold the ordinance ■ under review. In Village of Buffalo v. Webster, 10 Wend. 100, a by-law of the village prohibited any person from selling meats except at the public markets. The defendant exchanged a quarter of a lamb for groceries, and was sued for a penalty fixed for a violation of the ordinance, and a recovery had, which was reversed by the common pleas. On appeal to the supreme court this judgment was reversed, and that of the justice sustained. The validity of the by-law was the only subject involved, and the court upheld it, holding that it was a regulation of the business, “not a restraint of it,” and that the ordinance must be sustained if “reasonable, and for the common benefit.” Two other early cases are in the same line: City of Brooklyn v. Cleves, Lalor’s Supp. 231, and Bush v. Seabury, 8 Johns. 418. In City of Brooklyn v. Breslin, 57 N. Y. 591, the ordinance considered prohibited the driving of carts within the city for hire unless a license had been issued to the cartman by the mayor. The license was held to be a proper regulation of the carting business, and not in restraint of trade. Page 596. In People v. Mulholland, 82 N. Y. 324, 37 Am. Dec. 568, the common council
“The license and the fee therefor are a means of regulation and control, and the penalty Is a means of enforcing a proper restraint upon the persons by whom milk is offered. Being such, it was within the scope of the general and particular power of the city to make the by-law.”
In People v. Grant, 126 N. Y. 473, 27 N. E. 964, the act under review required every auctioneer doing business in New York City to obtain a license from the mayor. The relator in due form applied to the mayor for the license, which was refused. The contention urged was that it was obligatory upon the mayor to issue the license. The court of appeals held otherwise, deciding the power was discretionary, and its exercise not subject to supervision by the courts. The books abound with further illustrations of the exercise of this power. City of Rochester v. West, 164 N. Y. 510, 58 N. E. 673, 53 L. R. A. 548, 79 Am. St. Rep. 659; Village of Ballston Spa v. Markham, 58 Hun, 238, 11 N. Y. Supp. 826; City of Buffalo v. Schleifer, 51 N. Y. St. Rep. 58, 21 N. Y. Supp. 913; City of St. Paul v. Colter, 12 Minn. 41 (Gil. 16), 90 Am. Dec. 278.
It will be observed that in some of the cases adverted to the test upon which the discretion of the mayor was to be exercised was defined in the act or ordinance creating the authority, while in others there was no limitation placed upon it. It does not follow that the omission to prescribe the bounds of the authority carries the conclusion that is vested arbitrarily in the official or body to whom it is committed. The difficulty of defining in a given case what standard shall be applied in the disposition of the petition, and the fact that the conservation of the public health is tire basis for the existence of the authority, indicate the reason for the absence of the definition; but it is no warrant for the inference that the power is an arbitrary one, to be exercised in ruthless disregard of the rights of any class or individual. The discretionary authority must rest somewhere, and experience has proven that its lodgment in some body or official of the municipality is more efficacious than to leave it with the legislature, to whom the local situation may. be unknown. We will advert to a few of the leading cases which it is claimed establish the principle that the ordinance under consideration is unconstitutional. In re Jacobs, 98 N. Y. 98, 50 Am. Rep. 636, involved a discussion of an act of the legislature ostensibly intended for the improvement of the public health “by prohibiting the manufacture of cigars and preparation of tobacco in any form in tenement houses in certain cases,” and making its violation a misdemeanor. The relator, who was a cigar maker in a tenement house, was arrested, and held upon the examination by the justice. A writ of habeas corpus was granted by a justice of the supreme court, but subsequently dismissed by him. Upon appeal the order was reversed by the gen
After all, in every case which may arise the criterion by which the ordinance or enactment is to be measured is whether it is reasonable. City of Buffalo v. Collins Baking Co., 39 App. Div. 432, 57 N. Y. Supp. 347. If it truly is a judicious regulation of any occupation for the benefit of the public, the courts will uphold it, within the compass of the police power. If that power is invoked to shield an un
Judgment affirmed, with costs. All concur.