Majority
Headnote
License to sell meat in a village—penalties for selling without a license, authorized by section 3, title 3 of chapter 291 of 1870.The learned county judge reversed the judgment of the Justice’s Court upon the ground that the license fee here exacted by the ordinance, thirty dollars, was too excessive to be regarded as a reasonable police regulation for the protection of life, health or property, or for the promotion of good order ; that it must, therefore, be considered as a tax, and that the legislature had not conferred upon the village the power to tax occupations for the purpose of producing revenue, or, at most, for any greater revenue than would defray the expense incident to granting the license.
We think the statute authorized the board of trustees to pass the ordinances in question establishing the price of the license, prohibiting peddling meat without a license, and fixing the penalty for each violation. Section 3 of title 3 of the village general act (2 R. S. [8th ed.], 967, chap. 291, Laws of 1870), provides that “the trustees shall have power, as to acts and matters within the corporate bounds, to make, publish, amend and repeal rules, ordinances and by-laws for the following purposes: ”
Subdivision 22. “ To restrain, regulate or prevent hawking and peddling in the streets ; to regulate, restrain or prohibit sales by auction, and grant licenses to peddlers and auctioneers and fix the amount to be paid therefor,” amended by chapter 281, Laws of 1878.
Subdivision 27. “ The board of trustees shall have power to make and establish all legal by-laws, rules and ordinances necessary to
Section 9, article 8 of the Constitution provides : ’ “ It shall be the-duty of the legislature to provide for-the organization of cities and incorporated • villages, and- to restrict - their-power of taxation, * * * so as to prevent abuses‘in assessments and contracting-debt.”
It is plain that the above legislative grants of power are within the Constitution, and are ample in their terms to embrace the ordinances of the village of Ballston Spa above cited. Undoubtedly the ordinance must be within the legislative grant of power or it is-void. Here the power is “ to restrain and prevent hawking and peddling in the- streets,” and “to grant licenses to peddlers, * * * and fix the amount -to be paid therefor.” Any one could peddle meat upon paying for the license.
In City of Brooklyn v. Nodine ( 26 Hun, 512 ) it -was said that the power to regulate and1 license does not carry the power to tax. We need not question this. Here the power with respect to peddlers is to restrain and prevent and to license. The license fee exacted tends to restrain and prevent. It is also a tax, but it is not,- therefore, prohibited. It is competent for the law to- provide that a. peddler who enjoys the benefits of the trade of a village shall contribute something in discharge of its burdens. Cases are cited in which ordinances designed to confer arbitrary power upon the-authorities to do injustice to a class because of race or religious-prejudices have been condemned. In Yick Wo v. Hopkins ( 118 U. S., 356 ) the Chinese were discriminated against. In Austin v. Murray ( 16 Pick., 121 ), the Roman Catholics. These have no-application. Cases cited in which, under a false pretense of promoting health or good order, oppressive burdens have been imposed, do not apply. Nor do the cases cited from the Supreme Court of the United States, in which it has been held that a license imposed by State authority upon a non-resident trader of the State because he was a non-resident, was void; or upon a trader because he dealt in the productions of other States; or upon merchandise because-it was imported from other States. These were attempts by the-
The matter here is purely of a domestic character, and the power exercised is valid because authorized by the legislature within its constitutional competency. (Village of Carthage v. Frederick, 33 N. Y. St. Rep., 383 ; Village of Deposit v. Pitts, 18 Hun, 475 ; People ex rel. Dorr v. Thacher, 42 id., 349; City of Brooklyn v. Breslin, 57 N. Y., 591 ; People ex rel. Larrabee v. Mulholland, 82 id., 324.)
The answer raises no issue as to the incorporation of the village.
The judgment of the County Court should be reversed, with costs.
Learned, P. J., and Mayham, J., concurred.
Judgment of County Court reversed and that of justice affirmed.