110 Misc. 385 | N.Y. Sup. Ct. | 1920
The defendant makes return to the writ that he holds the above-named Nicholas Economus under and by virtue of a warrant issued by the clerk of the City Court of Utica for the arrest of the said Nicholas Economus, in that the said Nicholas Economus is guilty of the crime of wrongfully and feloniously violating ordinance 383 of the year 1919 of the city of Utica, a misdemeanor, in that, on or about the 4th day of January, 1920, the relator conducted a public place of business for profit, a pool and billiard parlor, at 167 Genesee street, Utica, N. Y., without filing a surety bond and obtaining a license, and did permit said premises to remain open between the
The ordinance in question
Section 1. “ No public pool or ounqrd or pocket billiard room, public bowling alley or pulilje place of any description in which pool or billiards Or pocket billiards are played or which includes a bowling: alley for bowling, and which is conducted as a public placo of business for profit, shall be permitted in the City of Utica unless a license therefor is granted annually to the proprietor thereof by the Mayor of the City of Utica.”
Section 2 provides for the payment of a license fee of $25 and the deposit of a bond of $1,000 in the office of the treasurer of the city of Utica.
Section 3 provides for the issue of a suitable license for framing purposes, which is unimportant.
Section 4 provides: Subdivision (A) for the closing of pool rooms on Sunday; subdivision (B) prohibits the allowing of a child actually or apparently under the age of sixteen - years, unaccompanied by its parents, in the pool room or any place adjacent thereto; subdivision (C) is as follows: “ Who violates any of the provisions of section one of this ordinance; ” and the section concludes with the statement: “ Is guilty of a misdemeanor, and upon conviction thereof, if an individual, shall be punishable as follows: First offense by a fine of one hundred and fifty dollars; ” and further provisions in regard to subsequent convictions.
Section 5 provides when the mayor may refuse to issue a license.
Section 7 provides that the ordinance shall take effect January 1, 1920.
The relator challenges the validity of the aforesaid ordinance upon various grounds, with others that the common council of the city of Utica exceeded its powers in that it enacted an ordinance relative to Sabbath breaking, which provision is repugnant to the laws of the state of New York; that the common council unlawfully delegated its power to the mayor to grant or withhold a license, a power which relator claims is judicial in its character and can only be exercised, if at all, by the common council itself; that the penalties provided for violation of the ordinance are excessive, and that the provisions of the ordinance as an entirety are unreasonable.
The attorneys upon the argument of this motion and in their briefs, have emphasized the question as to the authority of the common council of the city of Utica to pass and enforce an ordinance relating to Sabbath breaking, and the relator in this regard relies upon the case of People ex rel. Kieley v. Lent, 166 App. Div. 550; affd., 215 N. Y. 626, which was the case of an exhibition of moving pictures on Sunday. If the view which I take of the matters presented is correct, the question of Sunday observance is not presented.
Section 4 of the aforesaid ordinance provides “ (A) Who permits premises so licensed to remain open between the hours of twelve o’clock midnight Saturday and six o’clock a. m. Monday of each week; ” (B) a provision in reference to allowing children under the age of sixteen years on the premises; (C) “Who violates any of the provisions of section one of this ordinance; is guilty of a misdemeanor and
Severability of provisions of the ordinance.— Assuming, for the purposes of this case only, that the provision of the aforesaid ordinance in regard to the Sunday observance is invalid, it is clearly severable and does not affect the validity of the balance of the ordinance. An analogous case was presented in Matter of Cullinan, 40 Misc. Rep. 583, Kenefick, J., Erie County Special Term, 1903. This was an application, based upon a verified petition, containing positive averments of violations of the Liquor Tax Law, in which the certificate holder appeared by attorney and interposed the objection that the provisions of subdivision 2, section 28, of the Liquor Tax Law requiring him to file a verified answer tendering an issue, and in default of such answer directed the
In Duryee v. Mayor, 96 N. Y. 477, 491, Chief Judge Huger uses the following language: “ If effect can consistently with the general legislative intent be given to such parts of a statute as are not in conflict with paramount authority and are within the authority of the body enacting them, it is the duty of a court, while rejecting its unconstitutional and unauthorized parts, to enforce the remaining provisions of a law which are within the legislative power of its authors. When part oMy of a statute or a section is unconstitutional, that part only is void, unless the other provisions are so dependent and connected with that which is void, that it cannot be presumed that the legislature would have enacted the one without the other.” People ex rel. McPike v. Van de Carr, 91 App. Div. 20, 26; affd., 178 N. Y. 425; Chapman v. Selover, 172 App. Div. 858, 862; revd., 225 N. Y. 417, upon other grounds.
In Yellow Taxicab Co. v. Gaynor, 82 Misc. Rep. 94; affd., 159 App. Div. 888, 893; affd., in the case of Waldorf-Astoria Hotel Co. v. City of New York, 212 N. Y. 97, on page 101, Seabury, J., on whose opinion the case was affirmed by the Appellate Division, first department, uses this language: “ In determining the questions presented the court must keep in mind the well-settled principle of law that the fact that there may be void provisions of a statute or ordinance furnishes no reason for declaring the whole statute or
Delegation of authority.— The relator claims that if the common council had the power to require a license, that it could not delegate to the mayor the discretionary power given that official by the provisions of the ordinance in question. This claim is upon first impression apparently sustained in the leading case of Thompson v. Schermerhorn, 6 N. Y. 92, which has been followed by a large number of cases, and the relator cites the case of City of Hudson v. Flemming, 139 App. Div. 327.
I only refer in this connection to these two cases, as such reference will indicate the line of demarkation between the principle invoked as to a delegation of discretionary powers and the facts presented in the instant case. The Schermerhorn case is distinguished in City of Brooklyn v. Breslin, 57 N. Y. 594, in which it is stated: “ There it appeared that the common council of that city were empowered by law to make by-laws and ordinances directing streets to be pitched, leveled, etc,, in such manner as the city superintendent, under the direction of the committee of roads of the common council should direct and require.” (The foregoing italics are as printed in the reported ease.) It passed a law or ordinance directing a part of State street in that city to be pitched, leveled and paved to the center thereof in such manner as the city superintendent, under the direction of the com
In the case of City of Hudson v. Flemming, the relator was convicted of violations of an ordinance of the local board of health of the city of Hudson, which prohibited the sale of milk without a license from said board. The ordinance in question provided that no one should sell milk without obtaining a license from said board of health, and provided penalties for violation of same. Section 3 of said ordinance provided that upon an application being made to said clerk for a milk dealer’s license, it should be referred to the milk and dairy inspector, or other authorized agent of this board of health, who shall investigate the conditions under which the milk or cream is being produced, and if he reports that the milk or cream is being produced or handled according to the rules and regulations of said city, and upon payment to said clerk of the license fee, the clerk shall issue a license to said applicant; and it was held that “ The fair and reasonable construction of this ordinance requires us to hold that the Board has delegated its licensing power to a ‘ milk ' and dairy inspector, or other authorized agent ’ appointed by itself. * * * If the duties of the inspector or agent in this respect were of a purely ministerial or executive nature, such delegation of power to him by the Board of Health may be sustained. The rule, however, is well settled that if such delegated duty involves an act of judgment or discretion, and is not merely ministerial, such duty cannot be conferred by the Board or body on whom it pri
It seems to me to be otherwise as to the authority reposed in the common council of the city of Utica. Its function in this regard is legislative; to enact ordinances not inconsistent with law for the preservation of good order, for the peace, health and safety of its inhabitants. An examination of the legislative authority under which the common council of the city of Utica derives its power to act is appropriate in this connection. Section 35 of the charter of the city of Utica (Laws of 1862, chap. 18), and which, so'far as I have been able to discover, is unrepealed, provides as follows: “ The common council shall have the care, management and control of the property of the city and its finances; it shall have power to ordain, alter, modify and repeal ordinances not repugnant to the constitution and laws of this state, such as it shall deem expedient for the good government of the city. The preservation of peace and good order, the suppression of vice and immorality, the benefit of trade and commerce, and the health of the inhabitants thereof,- and such other ordinances, rules omd regulations as may be necessary to carry such power into effect” (The italics are mine.)
It is also specifically authorized to enact ordinances for the following purposes: “ Subdivision 2: To restrain and prevent and to suppress disorderly and gaming houses, billiard tables and all instruments and devices for gaming.”
I call particular attention to the provisions of the General City Law, section 19, known as the City Home Buie Act (Laws of 1913): “ Section 19. General grant of powers — Every city is granted power to regulate, manage and control its property and local affairs and is granted all the rights, privileges and jurisdiction necessary and proper for carrying such power into execution. Ho enumeration of powers in this or any other law shall operate to restrict the meaning of this general grant of power, or to exclude other powers comprehended within this general grant.”
It would be difficult to frame a more concise, more comprehensive, more emphatic grant of power to manage and regulate the government of a city in all the particulars essential thereto than is contained in the section just quoted, and the decisions of the courts of this state rendered prior to the enactment of the aforesaid provision (Laws of 1913) can only be upheld in so far as such decisions are in harmony therewith. But it seems to me that, even before the act of 1913, to which reference has been made, the common council of the city of Utica had the right to delegate the power conferred upon the mayor by the ordinance in question. •
• City of Brooklyn v. Breslin, 57 N. Y. 591. In this case the charter gave the common council power to authorize the mayor to grant licenses.
Bradley v. City of Rochester, 54 Hun, 140. In this case, as it seems to me, the question is precisely presented. This action was brought to recover back sums of money paid by the plaintiff and his assignors to defendant for hucksters’ license fees, upon the ground that the licenses in question were void for the reason that it assumed to delegate to the mayor an authority given by statute to the common council itself, and
Yellow Taxicab Co. v. Gaynor, 82 (Misc. Rep. 95; affd., 159 App. Div. 888, 893. In this case, on pages 108-109, Seabury, J., uses the following language: ‘ ‘ Manifestly the board of aldermen cannot itself attend to the work of licensing and inspecting vehicles and conduct the examination of applicants for drivers’
Reasonableness of the ordinance.— The ordinance is presumed to be reasonable. Matter of Stubbe v. Adamson, 220 N. Y. 459.
In City of Rochester v. Macauley-Fien-M. Co., 199 N. Y. 207, on page 211, Chase, J., uses the following language: 1 ‘ The common council is thus the judge as to what ordinances it will pass for the safety and welfare of the inhabitants of the city and the protection and security of their property, and unless an ordinance passed by it is wholly arbitrary and unreasonable it should be upheld. The necessity and advisability of the ordinance is for the legislative power to determine. The presumption is in favor of the ordinance.” People v. New York Edison Co., 159 App. Div. 786; City of Buffalo v. Hill, 79 id. 402; Village of Carthage v. Frederick, 122 N. Y. 268, opinion, Vann, J., p. 274.
Writ dismissed and the relator remanded.
Writ dismissed.