134 Misc. 711 | Fla. Washington Cty. Ct. | 1929
This is an appeal by the defendant from a judgment rendered by LeRoy S. Weaver, a justice of the peace of the town of Port Edward, on the 28th day of June, 1929, convicting the defendant of a violation of an ordinance of the village of Port Edward. The material parts of the ordinance in question read as follows:
“ Section 1. It shall be unlawful for any person or persons, not residents of the village of Fort Edward, to hawk, vend or peddle in the streets or public places within the corporate limits of the village any goods, wares, merchandise or other commodities, except products of the farm or garden when sold by the producer thereof, his servants or employees or to solicit orders by going from house to house for any goods, wares or merchandise except products of the farm or garden when offered for sale or sold by the producer thereof, his servants or employees without a license therefor.
“ Sec. 2. The fees for such license shall be one dollar per day payable when issued and such license shall be signed by the clerk under the seal of the village and shall have a receipt for the payment of the fee indorsed thereon countersigned by the treasurer of the village.”
After an examination of the ordinance and of the authorities submitted by the attorney for the appellant, I have reached the
In City of Buffalo v. Reavey (37 App. Div. 228); City of Watertown v. Rodenbaugh (112 id. 723), and People v. Ericson (147 N. Y. Supp. 226) similar ordinances were held to be an invalid exercise of the police power.
I am also of the opinion that the ordinance in question here is in violation of section 80 of the General Municipal Law, which provides as follows: “Any restriction or regulation imposed by the governing board of a municipal corporation upon the inhabitants of any other muncipal corporation within this state, carrying on or desiring to carry on any lawful business or calling within the limits thereof, which shall not be necessary for the proper regulation of such trade, business or calling, and shall not apply to citizens of all parts of the state alike, except ordinances or regulations in reference to traveling circuses, shows and exhibitions, shall be void."
It is also my opinion that the purpose and effect of this ordinance is to levy a tax upon the business of selling goods by a non-resident within the village of Fort Edward. A license fee, properly so called, is such a sum as will compensate for the expense of issuing and recording the license, and, when the license is issued, for the purpose of securing police control over the matter licensed, such further sum as will probably be incurred in inspecting and regulating such business. In the case before me, the fact that the charge is
For all the reasons hereinbefore stated, I find that the ordinance is void, and the defendant shall not be held for disregarding it.
The judgment of the justice of the peace is reversed.