98 N.Y.S. 885 | N.Y. App. Div. | 1906
The ordinance for the violation of which the defendant was convicted provides:
“ Section 1. Wo person shall engage in the business of .bill posting, bill distributing, sign advertising of any kind, or in distributing sámple packages of merchandise, or in any other like method of advertising in this city, without license so to do granted by the common coUncik” - . . .
Sections .2 and 3" relate to the granting of the license and fixing 'the charges which the licensee may make for" the business-he is licensed to do. - ■ - .
Section 4 provides: “ Wothing in sections- one, two or three shall be construed to apply to legal notices or to prevent merchants and-other residents of this city from distributing bills or advertising the business in which they are directly, engaged in this city, nor do prevent any" religious, benevolent, labor or social, organization-of this city "from distributing or advertising - its meetings^entertainments or other subjects of a like nature. Legal notices, nevertheless, shall only be posted at such places as have been or may hereafter be provided or designated for such purpose by the common ■council.” , .
Other sections forbid scattering or placing advertisements in certain places and regulate billboards. "The"license fee is fixed at fifty dollars per year, and a violation of the ordinance is punishable by a fine of ten dollars. The defendant, was fined ten dollars for violating section 1 of this ordinance, and it is the judgment imposing this fine which, wo are asked to reviéw'.
What she did, Which it is claimedv subjected her to this penalty, was distributing in the city on one occasion, September 6, Í904, sample packages of Mapi-flake, .a breakfast food manufactured at Battle Creek, Mich. She used a horse and wagon and two boys-in
We think the judgment is erroneous and that-it, as well as the judgment of affirmance of the County Court, should be reversed.
1. Assuming the ordinance to be valid, the proof does not seem to establish that the defendant violated its provisions. Section'4 of the ordinance expressly provides that nothing contained in sections 1, 2 or 3 shall be construed to prevent “ merchants and other residents of this city from distributing bills or advertising the business in which they are directly engaged in this city.” If a merchant is thus permitted_to advertise his business, he need not do it personally to bring himself within the exception contained in this section, but may employ others, and the proof shows that the defendant was doing this work for the local groceries.
Again, the ordinance assumes to prevent any unlicensed person from engaging in the business referred to, and it may well be questioned whether a person who, upon one occasion only, distributed sample packages under circumstances here disclosed, can be said to be engaged in the business, within the meaning of this ordinance, keeping in mind the exceptions contained in section 4 and the rules by which the validity of the ordinance must be tested.
2. If the construction contended .for on behalf of the city is to be placed upon this ordinance, and the acts of the defendant to be regarded as engaging in the business of distributing sample packages within the meaning of section 1 of the ordinance, then we think the ordinance unconstitutional and void so far as it prevents a nonresident of tiie city, or one class of persons, from doing what a resident or another class is permitted to do.
While municipal ordinances passedin pursuance of the authority, of the Legislature have the force of law and are as obligatory as 'if enacted by the Legislature itself (City of Buffalo v. N. Y., L. E. & W. R. R. Co., 152 N. Y. 276, 280), and the right of a city to regulate bill posting has been., upheld under a statute conferring such’power in terms similar to the provisions of this charter to which attention-has. been called (City of Rochester v. West, 164 N. Y. 510 ; Gunning System v. City of Buffalo, 75 App. Div. 31), yet such law, whether enacted^by local, legislative authority or by the Legislature itself, must be consistent with our State and Federal' Constitutions, and if the construction contended for on behalf of the city is to be given to this ordinance and what, the defendant did is to. be regarded as -coming within its prohibitions, then we think the- ordinance must be condemned as class legislation. The rule that an ordinance must be reasonable applies with particular. force to ordinances imposing license fees or business taxes, and stitih an ordinance must not discriminate against non-residents or persons engaged in tlie sale of property produced or manufactured outside the municipality. (21 Am. Eng. Ency. of Law [2d ed.], 783, 784; City of Buffalo v. Reavey, 37 App. Div. 228.)
The judgment of the County Court and that of the City Court should be reversed, with .costs.
McLennan, P. J., and Nash, J., concurred ; Spring, J., voted for reversal on the ground that the ordinance in question was unconstitutional; Williams, J., dissented.
Judgment of County -Court and City Court reversed, with costs.
Sic. See U. S. Const, art. 1, § 8, subd. 3.— [Rep.