
    The City of Watertown, Respondent, v. Lillian Rodenbaugh, Appellant.
    Fourth Department,
    May 2, 1906.
    Municipal corporation — constitutional law—city ordinances must not violate the Constitution — when ordinance preventing non-residents from distributing samples of food is unconstitutional.
    City ordinances prohibiting the distribution of sample packages of merchandise without-a license, except by local merchants, must be consistent with the State and Federal Constitutions. When such ordinances are construed so as to prevent the distribution of sample packages of food by the agent of a manufacturer residing in another State, they are unconstitutional and void as class legislation, as they prevent a non-resident of the city, or one class of persons, from doing what a resident, or another class, is permitted to do.'
    Moreover, assuming such ordinances to be valid, the penalty for the violation thereof cannot be recovered when it is shown that the agent of the foreign manufacturer was distributing samples -of food in the interest of local merchants.
    Williams, J., dissented.
    Appeal by the defendant, Lillian Eodenbaugh, from a judgment of the County Court of Jefferson county in favor of the plaintiff, entered in the. office of the clerk of the co.unty of Jefferson on the 14-th day of July, 1905, affirming a judgment of the City Court of the city of Watertown rendered on the 7th .day of September, 1904, for the sum of ten dollars.
    
      The action- was brought to recover a penalty for violating; an ordinance Of the city of Watertown relating to billposting and advertising. • - '
    
      Eugene M. Bartlett, for the appellant.
    
      I. R. Breen, for the respondent.
   Kruse, J.:

The ordinance for the violation of which the defendant was convicted provides:

“ Section 1. Wo person shall engage in the business of .bill posting, bill distributing, sign advertising of any kind, or in distributing sámple packages of merchandise, or in any other like method of advertising in this city, without license so to do granted by the common coUncik” - . . .

Sections .2 and 3" relate to the granting of the license and fixing 'the charges which the licensee may make for" the business-he is licensed to do. - ■ - .

Section 4 provides: “ Wothing in sections- one, two or three shall be construed to apply to legal notices or to prevent merchants and-other residents of this city from distributing bills or advertising the business in which they are directly, engaged in this city, nor do prevent any" religious, benevolent, labor or social, organization-of this city "from distributing or advertising - its meetings^entertainments or other subjects of a like nature. Legal notices, nevertheless, shall only be posted at such places as have been or may hereafter be provided or designated for such purpose by the common ■council.” , .

Other sections forbid scattering or placing advertisements in certain places and regulate billboards. "The"license fee is fixed at fifty dollars per year, and a violation of the ordinance is punishable by a fine of ten dollars. The defendant, was fined ten dollars for violating section 1 of this ordinance, and it is the judgment imposing this fine which, wo are asked to reviéw'.

What she did, Which it is claimedv subjected her to this penalty, was distributing in the city on one occasion, September 6, Í904, sample packages of Mapi-flake, .a breakfast food manufactured at Battle Creek, Mich. She used a horse and wagon and two boys-in distributing the packages, a boy- on each side of the street handing them into the houses. She stated to one of the witnesses that she was working for the Mapl-flake people of Battle Creek, Mich., and doing the work for the local groceries. It was admitted that she had no license. Mo testimony was given on her behalf, but at the close of the plaintiff’s case a motion was made to dismiss the complaint upon-the ground that the plaintiff had failed to make out a cause of action, and upon the further ground that the ordinance was unconstitutional, in that it restricted freedom of trade, was against public policy and in violation of the Interstate Commerce Law. The motion was denied and judgment rendered for the plaintiff.

We think the judgment is erroneous and that-it, as well as the judgment of affirmance of the County Court, should be reversed.

1. Assuming the ordinance to be valid, the proof does not seem to establish that the defendant violated its provisions. Section'4 of the ordinance expressly provides that nothing contained in sections 1, 2 or 3 shall be construed to prevent “ merchants and other residents of this city from distributing bills or advertising the business in which they are directly engaged in this city.” If a merchant is thus permitted_to advertise his business, he need not do it personally to bring himself within the exception contained in this section, but may employ others, and the proof shows that the defendant was doing this work for the local groceries.

Again, the ordinance assumes to prevent any unlicensed person from engaging in the business referred to, and it may well be questioned whether a person who, upon one occasion only, distributed sample packages under circumstances here disclosed, can be said to be engaged in the business, within the meaning of this ordinance, keeping in mind the exceptions contained in section 4 and the rules by which the validity of the ordinance must be tested.

2. If the construction contended .for on behalf of the city is to be placed upon this ordinance, and the acts of the defendant to be regarded as engaging in the business of distributing sample packages within the meaning of section 1 of the ordinance, then we think the ordinance unconstitutional and void so far as it prevents a nonresident of tiie city, or one class of persons, from doing what a resident or another class is permitted to do.

It not infrequently happens in urban communities that telegraph poles and other available places áre placarded,' Streets and pub-" lie places littered with handbills and other advertising matter,- and billboards become nuisances, and even homes and private prem■ises'invaded by the bill'circulator and sample package distributer without leave or license and against the protest of the owner; and x it may have been entirely.-proper .for-the common council to intervene and regulate the business, in this city, and- its power may be adequate to do so under the general welfare "clause of its charter (Laws of 1897, chap. 760, § 43) and the special .provisions m'ade in subdivision 12 of that section, relating to bill posting, bill distributing and sign advertising, but iii exercising that power it may not unjustly discriminate against any particular class. Up good reason occurs to us,, and none is suggested by the counsel who aré seeking to uphold this judgment, for permitting resident merchants to press upon the attention of the people of this city their Wares in this manner and forbid non-resident" tradesmen from doing so except through the official billposter of the city,

While municipal ordinances passedin pursuance of the authority, of the Legislature have the force of law and are as obligatory as 'if enacted by the Legislature itself (City of Buffalo v. N. Y., L. E. & W. R. R. Co., 152 N. Y. 276, 280), and the right of a city to regulate bill posting has been., upheld under a statute conferring such’power in terms similar to the provisions of this charter to which attention-has. been called (City of Rochester v. West, 164 N. Y. 510 ; Gunning System v. City of Buffalo, 75 App. Div. 31), yet such law, whether enacted^by local, legislative authority or by the Legislature itself, must be consistent with our State and Federal' Constitutions, and if the construction contended for on behalf of the city is to be given to this ordinance and what, the defendant did is to. be regarded as -coming within its prohibitions, then we think the- ordinance must be condemned as class legislation. The rule that an ordinance must be reasonable applies with particular. force to ordinances imposing license fees or business taxes, and stitih an ordinance must not discriminate against non-residents or persons engaged in tlie sale of property produced or manufactured outside the municipality. (21 Am. Eng. Ency. of Law [2d ed.], 783, 784; City of Buffalo v. Reavey, 37 App. Div. 228.)

Whether the defendant was distributing these sample packages for the Michigan manufacturers or the local merchants in Water-town, we think she was improperly convicted.

The judgment of the County Court and that of the City Court should be reversed, with .costs.

McLennan, P. J., and Nash, J., concurred ; Spring, J., voted for reversal on the ground that the ordinance in question was unconstitutional; Williams, J., dissented.

Judgment of County -Court and City Court reversed, with costs. 
      
      
        Sic. See U. S. Const, art. 1, § 8, subd. 3.— [Rep.
     