City of Buffalo v. Linsman

Full title: CITY OF BUFFALO, Respondent, v . JOHN LINSMAN, Appellant

Court: Appellate Division of the Supreme Court of New York, Fourth Department

Date published: May 2, 1906

113 App. Div. 584 (N.Y. App. Div. 1906)

98 N.Y.S. 737

Opinion

May 2, 1906.

John T. Ryan, for the appellant.

Louis E. Desbecker and William B. Frye, for the respondent.

WILLIAMS, J.:

The order of the Special Term and the judgment of the Municipal Court should be reversed, with costs.

The action was commenced by the arrest of the defendant upon a charge of violating section 1 of chapter 17 of the ordinances. The Municipal Court, after a trial, convicted defendant and fined him five dollars and costs. There was a judgment in Municipal Court, and, on appeal, an order of affirmance by the Special Term of the Supreme Court, but no judgment entered on such order. This appeal is from the order and not from any judgment.

The ordinance in question provides, in brief, so far as it affects the question here involved, that no person shall offer for sale upon the streets any merchandise without first obtaining a license from the mayor, and no person shall hawk, peddle or vend any fruits, farm or garden produce on the streets between five o'clock in the morning and one o'clock in the afternoon. The defendant, when arrested, was peddling vegetables on the streets, from a wagon, about eleven o'clock in the forenoon. He had a license from the county clerk, but none from the mayor of the city. He was a war veteran, and his license was issued under chapter 371 of the Laws of 1896, as amended by chapter 659 of the Laws of 1899, and chapter 566 of the Laws of 1904. By the terms of that act the defendant under his license had the right to hawk, peddle, vend and sell his own goods, wares and merchandise in this State. This act was apparently passed to relieve war veterans from taking the license provided for by section 60 et seq. of the Domestic Commerce Law of the State (Laws of 1896, chap. 376). This latter license, however, did not relieve a person from the effect of any municipal regulations as to license, but was in addition to any such regulations. (§ 64.) And the same would seem to be true under the Veteran Act. ( City of Gloversville v. Enos, 35 Misc. Rep. 724, 728, 729; revd. on other grounds, 70 App. Div. 326. )

There seems to be no controversy as to this proposition on the part of appellant here. No exemption from the provisions of the ordinance in question is claimed by reason of the license under the Veteran Act.

Section 17 of the city charter (Laws of 1891, chap. 105) provides that the common council shall enact ordinances to license and regulate hawkers and peddlers, and such other ordinances as shall be deemed expedient for the good government of the city, not inconsistent with the laws of the State. Under these provisions of the charter the ordinance in question was enacted. The ordinance was one licensing and regulating hawkers and peddlers, and was apparently deemed expedient for the good government of the city. Express power was, therefore, given to enact the ordinance, if it was not subject to objection as to its peculiar provision prohibiting hawking and peddling between the hours of the day named, five A.M. and one P.M. We are unable to see how it was necessary or proper to insert this provision in the ordinance. The design was quite apparent, to benefit grocers and shopkeepers dealing in such articles as the peddlers sold. It was inserted in the ordinance by the procurement and by reason of the importunity of the Retail Grocers' Association. It deprived the consumers of the opportunity to purchase their supplies of the peddlers and compelled them to patronize the grocers and shopkeepers. The prohibited hours covered the time when the supplies for the day would ordinarily be purchased. It was in no sense a proper regulation, and was in no way necessary for the preservation of the public health or the good government of the city. It was an unfair discrimination and in restraint of trade. It in no way tended to protect the public health or public order. Hawking and peddling is recognized as a legitimate business by the Legislature, and is so recognized by the city in its ordinances. This provision does not relate to the character of the licensees, or to the peace and quiet of the city. The portion of the day excluded would be no more disturbed than the later part of the day. It is needless to dilate upon the subject. This provision has no proper place in the ordinance. It was put there for an improper and illegal purpose, not as a regulation for the good government of the city, or to protect the public health, or the peace and quiet of the streets, but in the interest of the retail dealers and shopkeepers, improperly discriminating in their favor, and was class legislation and in restraint of trade.

The ordinance was, therefore, invalid and no conviction could properly be had for the violation thereof.

The judgment was erroneous and should be reversed and the defendant discharged.

All concurred, except McLENNAN, P.J., who dissented.

Order of Special Term and judgment of Municipal Court reversed with costs.