
    The Village of Ballston Spa., App’lt, v. Charles A. Markham, Resp’t.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed November 28, 1890.)
    
    Villages—Ordinances—License pee.
    Ordinances were adopted by the plaintiff corporation providing that all persons who hawked or peddled meat in its streets should pay a license of thirty dollars a year, and prescribing a penalty of ten dollars for selling without a license. Held, that these ordinances were authorized under the general village act, Laws 1870, chapter 291, and were valid.
    Appeal from a judgment of the Saratoga county court, reversing a judgment of a justice of the peace.
    The plaintiff sued the defendant to recover three penalties of ten dollars each, alleged to have been incurred by the defendant because that on three different days he peddled meat in the village of Ballston Spa without having obtained a license therefor.
    The plaintiff is incorporated under the general act for the incorporation of villages, Chapter 291, Laws 1870, and the acts amendatory thereof. Its board of trustees passed and promulgated the following ordinances: “ Sec. 34. All persons within the corporate limits of this village who shall hawk or peddle meat -x- * -* in any of the streets of this village shall pay a license ” of thirty dollars therefor. “ Licenses here mentioned when issued shall continue in force one year.” Section 35 prescribes a penalty of ten dollars for selling without a license.
    Various other licenses are in. like manner provided for. The evidence showed that the defendant violated the ordinance and the. plaintiff recovered judgment for thirty dollars, and costs, before the justice, which judgment upon appeal was reversed by the county court.
    
      J. W. Vej'beclc, for app’lt; W. J. Miner, for resp’t.
   Landon, J.

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 B. S., 8th ed., 967; Chapter 291, Laws 1870, provides that “the trustees shall have power, as to acts and matters within the corporate limits, to make, publish, amend and repeal roles, ordinances and by-laws for the following purposes : Subd. 22. 1 To restrain and 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 chap. 281, Laws 1878.

“ Subd. 27. 1 The board of trustees shall have power to make and establish all legal by-laws, rules and ordinances necessary to cony out the purposes of this act, * * * and to enforce such by-laws, rules and ordinances. * * * The trustees shall also have power to prescribe penalties for a violation thereof not exceeding $100 for each offense.’ ”

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 ana to restrict their power of taxation, * * * so as to prevent abuses in assessments and contracting debts.”

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 to fix the amount to be paid therefor.” Anyone 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 and 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 Eoman Catholics. These have no application. Cases cited in which, under a false pretence of promoting health or good order, oppressive burdens have been imposed, do not apply. Nov do the cases cited from the supreme court of the United States, in which it has been held that g, 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 state to invade the exclusive power of congress to regulate commerce among the states, or to prevent inter-state commerce from being free.

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. State Rep., 383; Village of Deposit v. Pitts, 18 Hun, 475; People ex rel. Dorr v. Thacher, 42 Hun, 349; 3 N. Y. State Rep., 710; 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., concur.  