128 N.Y.S. 426 | N.Y. Sup. Ct. | 1911
The petitioner seeks to be discharged from the defendant’s custody on the ground that the ordinance under which he has been arrested is void for the reasons set forth in his petition. This ordinance was adopted by the board of aldermen on the 14th day of February, 1911, and approved by the mayor on February 16, 1911, and reads as follows:
“An Obdinance relative to public places of amusement.
“ Be it ordained by the Board of Aldermen of the City of New Yorh as follows:
“ Section 1. Ho person shall conduct on or in any street in the City of Hew York, the business of selling or offering for sale any ticket of admission or any other evidence of any license, contract or right of entry to any performance or exhibition in or about the premises of any duly licensed theatre, concert hall, place of public amusement, circus, common show, or any place of public amusement for which a license is not required by law. Hor shall any person solicit by words, signs, circulars or other means any person to purchase any such ticket upon any such street. Any person guilty of a violation of this ordinance, or any part thereof, shall, upon conviction before a City Magistrate, he punished by a fine not exceeding ten dollars, and in default of payment of any fine so imposed, shall be committed to the City Prison for a term not exceeding ten days, each day of such imprisonment to be taken as a liquidation of each dollar of such fine.
The petitioner is charged with having violated this ordinance in that, on the 20th day of March, 1911, in the public street in the city of New York, in front of the Metropolitan Opera House, 1419 Broadway, he unlawfully conducted the business of selling a ticket of admission to said opera house. He admits that he is a ticket speculator,, and, although no reference is made in his petition as to whether he sold tickets at the time and place referred to in the complaint before the magistrate, yet he claims to have a large number of tickets to the opera house in his possession.
It is contended, however, that the board of aldermen had no power to pass the ordinance.
■Section 43 of the charter provides in part: “ The board of aldermen shall have power to make * * * all ordinances * * * not- contrary to the laws of the state, of the United States, *" * * as they may deem necessary and proper for the good government, order and protection of persons and property, and for the preservation of the public health, peace and prosperity of said city, and its inhabitants1.”
'Section 44 provides: “Mo enumeration of powers in this act shall be held to limit the legislative power of the board of aldermen except as in this act specifically provided and the board of aldermen in addition to all enumerated powers may exercise all of the powers vested in The City of Mew York by this act, or otherwise, by proper ordinances, rules, regulations and by-laws not inconsistent with the provisions of this act, or with the constitution or laws of the United States or of this state; and, subject to such limitations, may from time to time ordain and pass all such ordinances, rules., regulations and by-laws applicable throughout the whole of said city or applicable only to specified portions thereof, as to the said board of aldermen may seem meet for the good rule and government of the city, and to carry out the purposes and provisions of this act * -x" * and for the enforcement of the same by such fines, penalties, forfeitures and imprisonment as may by ordinance or by law be prescribed.”
Mr. Justice Chase, in Fifth Avenue Coach Co. v. City of New York, 194 N. Y. 28, in referring to the right of the city to adopt ordinances pursuant to power given it by the charter, says: “ That the defendant owns in fee the streets and avenues over which the plaintiff runs its stages is not disputed. Such streets are held in trust for public uses. In Osborne v. Auburn Telephone Co. (189 N. Y. 393, 397) this court says: Cities which own the fee in the streets may contract, lease or grant their use for public or municipal purposes not inconsistent with nor prejudicial to the public easement or use for street purposes. In such cases the fee having been transferred to the municipality, it can grant rights in the streets other than for street purposes which do not impair the public easement.’ The converse of such statement is true, and- a city which owns the fee of its streets can refrain from granting rights therein that are not for street purposes.
“ In further considering the authority of defendant to enact said ordinance the language of the charter may be repeated in so far as it says that the board of aldermen may make such ordinances ‘ as they may deem necessary and proper for the good government * * * of said city and its inhabitants,’ and also, ‘ as to the said, board of aider-men may seem meet for the good will .and government of the city.’
“ The board of aldermen are thus the judges as to what ordinances they will pass to carry out and preserve the interests of the municipality and unless an ordinance passed by them is wholly arbitrary and tmreasonable it should be upheld. The necessity and advisability of the ordinance is for the legislative power to determine. The presumption ia in favor of the ordinance.”
As was said .by the Court of Appeals in Collister v. Hayman, 183 N. Y. 250: “Our recent decision in People ex rel. Tyroler v. Warden (157 N. Y. 116), relied upon by the appellant, is not analogous. We there adjudged unconstitutional a statute which prohibited as a crime the selling of transportation tickets by any person except common carriers and their specially authorized agents, in so far as it undertook to prohibit citizens of the state from engaging in the business of brokerage in passenger tickets.”
It must, therefore, be held that the ordinance complained of was within the powers of the board of aldermen, and that the arrest by the defendant was justified. The writ must be dismissed and the prisoner remanded.
Writ dismissed and prisoner remanded.