
    Village of Ballston Spa v. Markham.
    
      (Supreme Court, General Term, Third Department.
    
    November 26, 1890.)
    License—Hawkers and Peddlers.
    A village ordinance, enacting that all persons within the corporate limits of the village who shall hawk or peddle meat in any of the streets of the village shall pay a license of $30, is authorized by the general village act (Laws N. Y. 1870, c. 291, • tit. 3, § 3, as amended by Laws 1878, c. 281) giving power to make ordinances to restrain and prevent hawking and peddling in the streets, and to grant licenses to-peddlers, and fix the amount to be paid therefor.
    Appeal from Saratoga county court.
    Plaintiff village sued defendant, Charles A. Markham, in a justice’s court, to recover three penalties of $10 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. Plaintiff is-incorporated under the general act for the incorporation of villages; (Chap-1 ter 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, * . * * in any of the streets of this village shall pay a license” of $30 therefor. “Licenses here mentioned when issued shall continue in force one year.” . Section 35 prescribes a penalty of $10 for selling without a license. Various other licenses are in like manner provided for. The evidence showed that defendant violated the ordinance, and plaintiff recovered judgment for $30,, and costs, before the justice, which judgment upon appeal was reversed by the county court. From the judgment of reversal plaintiff appeals. ;
    
      Argued before Learned, P. J., and Landon and Mayham, JJ.
    
      J. W. Verbeck, for appellant. W. J. Miner, for respondent.
   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 ($30) 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 ány 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 Rev. St., 8th Ed., p. 967; chapter 291, Laws 1870) provides that “thetrustees shall have power, as to acts and matters within the corporate limits, to make, publish, amend, and repeal rules, ordinances, and by-laws for the following purposes: * * * (subdivision 22) To restrain and prevent hawking and peddling in the streets, to regulate, restrain, or prohibit sales by auction, and grant licenses to peddlers and auctionegrs, and fix the amount to be paid thereior,”—amended by chapter 281, Laws 1878. Subdivision 27: “The board of trustees shall have power to make and establish all legal by-laws, rules, and ordinances necessary to carry 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, art. 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 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 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 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, 6 Sup. Ct. Rep. 1064, 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 th& 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, ór 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 interstate 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, 25 N. E. Rep. 480; Village of Deposit v. Pitts, 18 Hun, 475; People v. Thacher, 42 Hun, 349; City of Brooklyn v. Breslin, 57 N. Y. 591; People v. Mulholland, 82 N. Y. 324. The answer raises no issue •as to the incorporation of the village. The judgment of the county court should be reversed, with costs. All concur.  