
    The People of the State of New York ex rel. Philip Moskowitz, Appellant, v. Fred Jenkins, Chief of the Police of the City of Glens Falls, Respondent.
    Third Department,
    November 16, 1910.
    Constitutional law — sale of bankrupt stock in municipalities — statute requiring license constitutional — license not excessive.
    Section 85 of the General Municipal Law, prohibiting persons conducting a transient retail business in certain municipal corporations from advertising a sale of bankrupt or fire damaged stock, etc., without first obtaining a license from the municipal officers, is constitutional, being a valid exercise of the police power designed to protect the public from fraud.
    The Legislature has power to regulate such sales and to give the local authorities discretion to license such as arc proper and to refuse a license to those which are improper.
    The license fee of §25 to §100 per month imposed by the statute is not excessive, nor intended as a revenue measure, nor as a protection to local merchants from traveling merchants. .
    In any event a vendor who does not claim that goods advertised as bankrupt goods were such in fact cannot attack the validity of a municipal ordinance fixing his license fee at §100 as, under the circumstances, he is not entitled to any license.
    Cochrane, J.; dissented, in part. •
    
      Appeal by the relator, Philip Moskowitz, from an order of the Supreme Óourt, made at the Warren Special Term and entered in the office of the clerk of the county of Warren on the 20th day of August, 1910, dismissing a writ of habeas corpus and remanding the relator to custody.
    The relator was convicted of a violation of section 85 of the General Municipal Law (Consol. Laws, chap. 24; Laws of 1909, chap. 29) in advertising and selling as bankrupt a transitory stock of goods in a store at Glens Falls without a license. He instituted proceedings of habeas corpus, claiming that the statute was unconstitutional and the conviction void. The Special Term, by order entered in Warren county, decided against him, and remanded him to custody, and he brings this appeal.
    
      Henry W. Williams, for the appellant.
    
      J. Edward Singleton, for the respondent.
   Kellogg, J.:

The statute in question is a police measure evidently based upon the view of the Legislature that transitory stocks advertised for sale as bankrupt or fire sales are usually fraudulent, and the goods of inferior quality; that, instead of the goods being forced upon the market at a sacrifice by the misfortune of the owner, they are purchased for sale and sold because they can be sold at a profit. It is fairly within the police power to protect the people from fraud and deception, and this statute is evidently intended to protect the public from a fraudulent business.

Requiring a license to carry on such a business reposes in the city authorities a discretion to grant or refuse the license, depending upon their understanding of the good faith of the sale and the seller. (People ex rel. Schwab v. Grant, 126 N. Y. 475.)

I have no doubt about the power of the Legislature to regulate such sales, and to give to the local authorities a discretion to license such as are proper, and refuse a license to those which are improper. But it is alleged that the license fee imposed by the statute, from $25 to $100 a month, is excessive, and, therefore, the statute is not properly a police regulation, but is really intended as a revenue measure or to protect local merchants from traveling merchants. We cannot determine the meaning of the statute by saying that the license fee may be $100 a month, consequently $1,200 a year. The license only relates to transitory sales, and the Legislature probably had in view that at the end of the first , or second month the stock would move on to another locality.

From the doubtful nature of the business the city, before granting the license, is required to investigate it and its proprietor, and determine whether the sale proposed is in good faith a bankrupt or fire sale properly conducted, of honest goods, or , whether it is a fraudulent sale made under a false name and for the purpose of deception. If the license is granted, in order to protect the community from sales of this questionable character, a further responsibility is thrown upon the local authorities to see that it' is in fact a bona fide sale fairly conducted. So that they may refuse to renew the license, or take necessary steps to protect the public from fraud while the license continues. There is also the chance that sales of this nature advertised may collect a crowd and throw upon the .community some additional burden of police regulation. Twenty-five dollars is the minimum license fee in a city for an ordinary case, and $100 the maximum fee for a most extraordinary case in the largest city. It cannot be said that these figures are so exorbitant that it imputes a bad faith to the Legislature and makes a revenue measure of what was evidently intended as a mere police " regulation.

I think, therefore, the statute was valid, and it prohibited the sales the relator was making, unless he obtained a license. He made no effort to obtain a license, and clearly has violated the statute.

It is further contended that the aldermen, by fixing the license fee at $100, made the "ordinance illegal and void. The ordinance is fairlywitliin the terms of the statute. Ho ordinance had been adopted at the time the relator began his sale. The ordinance in question, therefore, was made with special reference to him, and its .validity or invalidity may very properly be considered by applying it to his case. The advertisements issued by the relator clearly indicate a fraudulent sale of spurious goods. Upon the trial, and in his moving papers, he makes no effort to show that his goods were actually bankrupt or fire goods, or that he was proceeding in good faith, and whatever he might claim in that respect would be fully answered by his advertisement, which shows that a mayor of the city, acting with due regard to the public interests, would refuse him a license. Clearly, if a license were to be granted him, from the nature of his business as appears by the record, it is fair to assume that the license fee would be wholly expended in trying to protect the citizens from the fraudulent sales which he sought to make. The relator is not in a position to question whether the license fee is too high with reference to an honest fire or bankrupt sale properly conducted. His evidently was not of that kind, and the court need not consider that question until some person fairly entitled to a license raises it. It is improbable that any license could have been granted to him, no matter what the fee was, and, therefore, he is not prejudiced if the fee is rather large. A person not fairly entitled to the license is not in a favorable position to claim that the license fee is too high, and ought not to be permitted to carry on a business for which he could not obtain a license upon the mere pretext that the fee is too high.

I favor an affirmance of the order.

All concurred, Smith, P. J., in result, except Cochrane, J., dissenting on the ground that a license fee of $100 a month is not reasonably necessary for the accomplishment of the legitimate purposes of the statute, and is unduly oppressive; Houghton, J., not sitting.

Order affirmed.  