
    Trio Distributor Corporation et al., Appellants, v. City of Albany et al., Respondents.
    Argued March 1, 1957;
    decided May 16, 1957.
    
      
      John P. McGrath, Charles B. Sullivan, Jeremiah T. Mahoney, George A. Spohr, Jr., P. E. Conforii and J. Joseph Murphy for appellants.
    
      Harold E. Foreman, Corporation Counsel, for respondents.
   Van Voorhis, J.

This appeal involves the validity of an ordinance adopted by the City of Albany May 21, 1956, regarding itinerant vending in public streets and places. The corporate plaintiff is the distributor in Albany of ice cream products of Good Humor Corporation, which engages in this kind of business in some eight different States. This business consists in peddling ice cream products in city streets by means of specially designed, sanitary, refrigerated, automotive trucks of uniform type and equipment in charge of a single employee. Four of these trucks were in use in Albany when the events giving rise to this litigation occurred. Good Humor Corporation uses between two and three thousand similar trucks in various cities.

This action is brought by the corporate plaintiff and one of its drivers engaged in vending ice cream in the manner stated, for judgment declaring this city ordinance unconstitutional, and enjoining the enforcement of it against them.

The operative paragraph of this ordinance is as follows; “ § 2. When any person shall vend or peddle from a vehicle in the public streets and places in the City of Albany, and, in the pursuit of such business or activity, children shall collect, assemble or gather about such vehicle for the purpose of making purchases, such person so vending and peddling, and the pursuit of such occupation, shall be accompanied by an attendant whose sole duty and occupation shall be to protect and safeguard the children from injury and the hazards of street vehicle traffic and he shall maintain a constant look-out for approaching vehicles and shall warn the children and guard them from injury.”

Violations are punishable by a fine of not to exceed $100, or by imprisonment for not to exceed 10 days or both. Although the ordinance does not say that violation constitutes a misdemeanor, section 42 of the Second Class Cities Law so provides.

This type of business, however conducted, has encountered protracted litigation in the courts of this and other States. The leading case in this State is Good Humor Corp. v. City of New York (290 N. Y. 312), in which an ordinance prohibiting itinerant peddling on the streets of New York City was held to be unconstitutional. Similar ordinances have met a similar fate in other States (Commonwealth v. Rivkin, 329 Mass. 586; New Jersey Good Humor Corp. v. Board of Comrs., Bradley Beach, 124 N. J. L. 162; Frecker v. City of Dayton, 153 Ohio St. 14, affg. 88 Ohio App. 52; Schul v. King, 35 Ohio Op. 238; Frecker v. City of Zanesville, 35 Ohio Op. 234). Itinerant vending has been upheld here as an established occupation, not to be legislated or regulated out of existence (Good Humor Corp. v. City of New York, supra; Village of Stamford v. Fisher, 140 N. Y. 187, 191; City of Buffalo v. Linsman, 113 App. Div. 584; Collender v. Reardan, 138 App. Div. 738, 743; People ex rel. East Side Harlem Storekeepers Assn. v. Hylan, 118 Misc. 341, 342, affd. 202 App. Div. 745; People v. Gilbert, 68 Misc. 48, 52).

Although reasonable regulation of itinerant peddling in the streets of municipalities is permitted, ‘1 When regulation becomes destruction, it ceases to be regulation.” (Eighth Ave. Coach Corp. v. City of New York, 286 N. Y. 84, 94). A peddler’s ordinance cannot be used by indirection to prevent the conduct of a lawful business (Saidel v. Village of Tupper Lake, 254 App. Div. 22). An ordinance will be invalidated purporting to regulate a lawful activity, where its purpose is “to prohibit by onerous and exasperating restrictions, under the guise of regulation ”. (People ex rel. Phillips v. Raynes, 136 App. Div. 417, 423, affd. 198 N. Y. 539).

The present ordinance is the most recent of a series of measures adopted in Albany against this type of business. An earlier ordinance was held unconstitutional, in 1950, which proscribed peddling on certain streets and parkways unless the peddler had resided for six months in Albany (Schrager v. City of Albany, 197 Misc. 903). In 1955 the health of children rather than their protection from automobiles was considered to be menaced by this type of business. A provision was incorporated into the sanitary code of the Albany County Health District in that year requiring that trucks such as these be manned by two employees for sanitary reasons, lest the hands of the driver might contaminate prepackaged Good Humor products by being soiled from driving the truck. That ordinance provided that “ The operator, or driver, of any such vehicle shall not sell or dispense any such food. The person who actually sells, dispenses, or handles the food shall comply with Section 4 of Article IY of this code, and he shall not drive or operate the vehicle or perform other duties unless adequate facilities are present for the washing of hands before food is handled or dispensed.” A preliminary injunction against enforcement of that sanitary code regulation in conjunction with the city ordinance was granted by Special Term on June 21, 1955, in an action by the corporate plaintiff. An appeal therefroni was taken to the Appellate Division which has not been moved for argument by the City and is still pending. Except for that injunction, Good Humor vending trucks would be obliged to have a full complement of three men each, one to drive the truck, one to sell the ice cream containers after washing his hands, and the third to warn away whatever children congregated near the truck.

During the three years while the corporate plaintiff has been operating, 2,250,000 individual sales have been made in this type of business to customers in Albany. Two years prior to the adoption of this ordinance two minor accidents occurred to children. Then itinerant peddlers were under attack by the former ordinance requiring two men upon each truck, for sanitary reasons. After that ordinance had proved to be abortive, the present ordinance was adopted requiring two employees on each truck for a different reason. It seems clear that the cost of two men on each truck would be prohibitive.

It cannot be doubted that some forms of regulation of this industry would be related to the public safety, health, morals or welfare, such as prohibiting sales made to children in the streets outside of the curb. Under reasonable rules prescribing the conduct of this occupation, the discretion of the municipal legislative body would not be subject to review in the courts. Hiere, however, there is nothing to indicate that a second employee upon a truck to maintain a general lookout for children would be more intimately related to the public safety, than the presence of a second employee to prevent the driver from handling prepackaged ice cream products would be related to the public health. Such an employee could have no authority to direct or supervise children who might be attracted by the truck, nor is he provided by the ordinance with rules or standards governing the manner in which he is to secure the safety of children. The mere presence of two persons upon one vehicle signifies nothing by itself. If children will stand in the street, two employees have no more power or authority to drive them upon the sidewalk than one. An ordinance could prohibit an itinerant vendor from selling to any person while standing in the street, to refrain from peddling in specified congested thoroughfares during rush hours, and the like. But the generality of this enactment concerning the function and duty of the extra attendant required to be upon a vehicle, without supplying him with particular rules to follow or authority to enforce them, leaves too attenuated a connection between this ordinance and any of the foundations of the police power to sustain its validity.

Although this purports to regulate rather than to prohibit this business, it bears the earmarks of having been adopted for the same reasons as the one which was presented in Good Humor Corp. v. City of New York (290 N. Y. 312, supra) and the other cases that have been cited. Itinerant vendors are not subject to local taxation but compete with merchants who are. The situation has been described in City of Buffalo v. Linsman (113 App. Div. 584, 586, supra) and by the Michigan court in Chaddock v. Day (75 Mich. 527, 531-532). As is observed in the case last cited, the police power is not designed to aid one group in a community against another, as the courts of this State have frequently had occasion to hold (Defiance Milk Prods. Co. v. Du Mond, 309 N. Y. 537, prohibiting sales of evaporated skimmed milk in containers holding less than 10 pounds; Hauser v. North British & Mercantile Ins. Co., 206 N. Y. 455, 461-462, requiring insurance brokers to make insurance brokerage their principal business unless they also are real estate agents or brokers; People ex rel. Duryea v. Wilbur, 198 N. Y. 1, requiring the licensing of dancing academies; People ex rel. Phillips v. Raynes, 136 App. Div. 417, affd. 198 N. Y. 539, supra, licensing the sale of goods manufactured by convicts; People v. Ringe, 197 N. Y. 143, limiting licensing of undertakers to licensed embalmers who shall have been employed by licensed undertakers for at least three years; Fisher Co. v. Woods, 187 N. Y. 90, forbidding offering of real estate for sale without written consent of the owner; People v. Gillson, 109 N. Y. 389, prohibiting gifts of premiums in connection with sales of food). It was pointed out in a number of these cases that the regulating or licensing requirement, which was in each instance held to be invalid, amounted to prohibiting the conduct of an occupation under the guise of regulation.

This ordinance is unconstitutional for an additional reason. Trial Term well stated: ‘ ‘ When, however, in the exercise of its police power a municipality undertakes to enact a regulatory ordinance in which conduct which is otherwise lawful is converted into that which is criminal, its terms must be clear, precise, definite and certain in specifying the conduct which is prohibited and in prescribing ‘ some comprehensible guide, rule or information as to what must be done and what must be avoided, to the end that the ordinary member of society may know how to comply with its requirements.’ (People v. Grogan, 260 N. Y. 138, 145; People v. O’Gorman, 274 N. Y. 284.) ‘ [A] statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law.’ (Connolly v. General Const. Co., 269 U. S. 385, 391; People v. Vetri, 309 N. Y. 401; Standard Chem. and Metals Corp. v. Waugh Chem. Corp. 231 N. Y. 51; People v. Taylor, 192 N. Y. 398; People v. Phyfe, 136 N. Y. 554; People v. Estreich, 272 App. Div. 698; Matter of Bell v. Board of Regents, 269 App. Div. 588; Commonwealth v. Carpenter, 325 Mass. 519; Glendale Coal Co. v. Douglas, 193 Ind. 73; People v. O’Gorman, supra; People v. Grogan, supra; 5 McQuillin on Municipal Corporations [3 ed.], § 15.24.) ” This ordinance does not define what peddlers are to be regulated, it makes the test of its application dependent upon those who may be construed to be peddlers of products attractive to and popular with children. A penal ordinance might not be void for ambiguity if it provided that motor vehicles plying the streets for the purpose of vending ice cream, soft drinks, or other confections must comply with reasonable specific safety regulations, but one can only know after the event whether a vehicle is covered by this ordinance. The evidence shows that the corporate plaintiff’s trucks vend exclusively to adults during school hours in the commercial areas of the city. In doing so without an attendant, would the corporate plaintiff be guilty of violating the terms of this ordinance if no children were in the vicinity, or would guilt flow from the circumstance that the nature of the business is such that children would be likely to be attracted if there were any nearby? Would guilt ensue if children were to appear, however unexpectedly, at a time or in a locality at which the vendor was accustomed to sell only to adults? Can it be known whether a driver is guilty only after it has developed that children have congregated about the truck at a given time or place? If an itinerant vendor be guilty of this offense in selling exclusively to adults, in case of a product which would also be likely to attract children, then one must know what type of wares to be dispensed by itinerant vendors will answer the description in the ordinance. Will children gather around a truck to buy fruits, vegetables, bread or pastry, soft drinks, as well as ice cream? If they gather around trucks of vendors of fruits and vegetables, are the drivers guilty? Must all fruit and vegetable trucks be attended by two operators in any event? This is too indefinite a basis on which to found a criminal charge. Moreover, under the language of this ordinance, a person vending from a pushcart or a horse-drawn vehicle would need to be accompanied ” by an attendant if he is vending “ products attractive to and popular with children ”. It would legally be possible under this language, if the ordinance be valid, to convict a vendor from a pushcart of peanuts, popcorn, fruit, vegetables or roasted chestnuts if he did not have an extra attendant on his cart. In determining whether an ordinance is a valid exercise of the police power, it is necessary to consider what would legally be possible in its general enforcement.

For the reasons stated, the judgment appealed from should be reversed, and the judgment of the trial court reinstated, with costs in this court and in the Appellate Division.

Desmond, J.

(dissenting). I dissent from this destruction of a simple municipal ordinance for the protection of children in the Albany streets.

Plaintiff Trio Distributor Corporation owns and operates in Albany several motor trucks from which during the summer months it sells, to customers on the streets and sidewalks of the city, ice cream and similar products packaged and refrigerated and bearing the “ Good Humor ” name and trade-mark. Each truck has one seat for a driver-salesman. Plaintiff’s trucks and its general method of doing business are similar to those used in many parts of the United States by distributors who like plaintiff Trio are licensed by Good Humor Corporation. Plaintiff Steffen is one of Trio’s driver-salesmen. Together, the plaintiffs bring this suit for a declaration of invalidity of a city ordinance adopted in 1956 by the Albany Common Council. The ordinance requires that every motor truck which, like plaintiffs ’, attracts and caters to, and from which sales are made to, children in the Albany streets shall have a crew of two persons, one of whom shall be “an attendant whose sole duty and occupation shall be to protect and safeguard the children from injury and the hazards of street vehicle traffic ” and who “ shall maintain a constant look-out for approaching vehicles and shall warn the children and guard them from injury ”.

Plaintiffs assert in this court that this ordinance is an unreasonable exercise of police power in that its real object is to destroy plaintiffs’ business for the benefit of local merchants, that it is too vague and ambiguous for enforcement and that it conflicts with section 54 of the State Vehicle and Traffic Law. Any one of these charges, if substantiated, would nullify the law. However, none of them has been sustained.

The legislative process which produced this ordinance began in 1955. In August of that year the council adopted a resolution which recited that the ‘ ‘ mobile vending ’ ’ of products especially attractive to young children causes youngsters to gather about the vendor’s vehicle with resulting danger of injury or death. The resolution authorized the presiding officer of the Common Council to appoint, and there was appointed from the council membership, a committee to investigate and report as to such uses of the Albany streets by those vendors and as to the measures, if any, taken by the operators of such vehicles to safeguard children. About a month later the committee made its report which dwelt on tire necessity for dealing with such street "risks and hazards, listed various safety methods used by school bus and camp bus operators, and described at length the devices such as bright paint, bright lights on the trucks and bells and horns used by these street vendors to draw the attention and patronage of children. The report contained, too, a lengthy description of the work routine of the driver-vendor. When children appear he stops the truck, then takes his position in the street at the rear of the truck selling the confections to children who stand in the street in a widening semicircle behind the truck and mill about while other motor vehicles speed by. The committee report ended with a statement that a driver is unable to sell and deliver his products, collect the money and make change and at the same time do anything to protect his youthful customers. Since, said the report, these itinerant vendors for their own profit cause the children to gather in the streets, such vendors should be required to take affirmative protective measures. The ordinance as later adopted by the council was first proposed in this committee report.

In its first section the ordinance contains a legislative finding and declaration that “it is in the best interests of the public and for the welfare and safety of the young children in the City of Albany that those peddlers from vehicles of products attractive to and popular with children and inviting or causing children to gather and collect about such vehicles in the-carriageways of the public streets and public places, should be required to protect and safeguard such children from being struck by motor vehicles lawfully in the public streets and public places ”. Then follows the requirement for an extra attendant.

First, we take up plaintiffs’ charge that the real purpose behind this enactment was the destruction, for the benefit of local merchants, of a “ common and traditional use of the streets ” for vending (Good Humor Corp. v. City of New York, 290 N. Y. 312, 317). No such improper motive was shown here or found as fact by either court below, which sufficiently distinguishes this case from City of Buffalo v. Linsman (113 App. Div. 584) and other decisions cited by plaintiffs. This record contains nothing on the subject of motive or purpose except the committee report and the policy declaration and findings recited in the ordinance itself. Plaintiffs, for all we know, may have grounds for their suspicions but we as a court cannot act on those suspicions.

That the protection of children in the streets is a proper subject for legislation is patent (People v. George, 170 Misc. 707, affd. 280 N. Y. 843; Good Humor Corp. v. City of New York, 290 N. Y. 312, supra; see People v. Rubin, 284 N. Y. 392, 395). Modern examples are the statutes forbidding an automobile to pass a standing school bus and creating special speed limits for streets near schools (Vehicle and Traffic Law, § 81, subd. 24; § 56, subd. 2, par. [b]). But, say appellants, this Albany ordinance is unreasonably oppressive. Plaintiffs’ operating costs will be so increased, they suggest, that profitable operation of this lawful business will be made impossible. Here, again, there is no proof at all in the record nor any findings by the courts below on this subject. And an otherwise valid regulatory law cannot be defeated by a showing that (like almost every such law) it imposes financial and other burdens on business (see Hegeman Farms Corp. v. Baldwin, 293 U. S. 163, 170). This ordinance, unlike the New York City enactment condemned in Good Humor Corp. v. City of New York (supra), is regulatory, not prohibitory. Within reason, the choice of methods for regulating a lawful business is for the Legislature. Plaintiffs’ own proof on this trial was that children, including very young ones, are the principal customers of this trade. It was shown as to the company which competes with plaintiffs in Albany that of its 700 daily sales per vehicle about 500 were made to children. The resulting dangers are exhibited in the committee report and the Common Council’s findings. We have no right to go behind those legislative determinations. Actually, plaintiffs themselves by warning signs on their trucks and elsewhere recognize the existence of these same dangers the Common Council points to. That there have been few accidental injuries, or none, to children is beside the point when we consider the validity of a safety law (City of Rochester v. West, 164 N. Y. 510, 514).

People v. George (170 Misc. 707, affd. 280 N. Y. 843, supra) is very much in point here, since it answers two of plaintiffs’ contentions. Defendant George attacked the validity of a White Plains, N. Y., ordinance which forbade the sale by any hawker or peddler of “ confectionery or ice cream within two hundred and fifty (250) feet of any school between the hours of eight a.m. and four p.m. on school days ”. As to the White Plains ordinance there were no legislative findings and no showing of what were the particular reasons for its enactment. The courts upheld it, however, applying the traditional presumptions of constitutionality and finding a reasonable relationship to proper public purposes, including that of safety of children who make purchases in the streets. The George case is authority, too, against appellants’ argument from section 54 of the State Vehicle and Traffic Law. Section 54 denies to cities the power to enact ordinances regulating motor vehicle traffic except as such power is elsewhere specifically conferred. But section 90 of the same statute and section 30 of the Second Class Cities Law (applicable to Albany) are sufficient authority (see the George ease) for otherwise reasonable regulation of mobile street vendors.

Besides the supposed conflict with section 54 {supra), Special Term’s ground for invalidation was that the language of this Albany ordinance was too vague and indefinite or ambiguous for a criminal statute. The complaint in this action contains no allegation of any such defects. On the contrary, plaintiffs themselves allege in their complaint (paragraph Fourteenth) that the ordinance requires an additional attendant on each of their trucks to protect children from traffic hazards. This whole record shows that everyone knew of the applicability of the law to plaintiffs’ operations. The stated subject matter was the peddling in the Albany streets of ‘‘ products attractive to and popular with children ”, the congregating of children about such vendors in the streets and the resulting dangers, all of which makes out an accurate and complete description of the situation produced by the sales methods of plaintiffs and their competitor. The remedy is prescribed with equal particularity: the requirement of another attendant ‘ ‘ whose sole duty and occupation shall be to protect and safeguard the children from injury and the hazards of street vehicle traffic ” and who “ shall maintain a constant look-out for approaching vehicles and shall warn the children and guard them from injury ”. This is not a situation where a citizen is left in doubt as to the applicability to him of a criminal statute (People v. Benc, 288 N. Y. 318; Winters v. New York, 333 U. S. 507, 515, 516).

The majority opinion seems to say that the requirement of a second man is unrelated to the safety of children since such an employee would have no power or authority over the children and no rules or standards for performing his law-imposed duty of safeguarding the heedless youngsters. But in fact his duties are carefully spelled out: ‘‘ he shall maintain a constant look-out for approaching vehicles and shall warn the children and guard them from injury.” Any person of normal intelligence could carry out that simple directive.

We see no present relevance (neither court below mentioned it) of a Sanitary Code provision, adopted not by the city but by the County of Albany and not presently being enforced, which requires hand-washing facilities on such trucks and forbids the driver from doing any selling. When and if these two enactments are enforced together to require three workers on each truck, it will be time enough to deal with the resulting situation.

The judgment appealed from should be affirmed, with costs.

Conway, Ch. J.

(dissenting). I concur with Judge Desmond. It seems to me that this is clearly a case where we must give heed to the separation of the powers of government. The City of Albany has been granted the power by section 30 of the Second Class Cities Law through its Common Council to enact ordinances for the preservation of good order, peace and health and for the safety and welfare of its inhabitants. It was empowered to enact the ordinance here under attack.

The Common Council through its committee made a finding of fact, recited in the ordinance.

The G-eneral City Law, granting specific powers to cities, provides in subdivision 13 of section 20: “To maintain order, enforce the laws, protect property and preserve and care for the safety, health, comfort and general welfare of the inhabitants of the city and visitors thereto; and for any of said purposes to regulate and license occupations and businesses.”

The use of public streets, the regulation of traffic and the protection from injury of young children are certainly proper subjects for the exercise of the police power. These are matters exclusively for legislative rather than judicial determination. “ The necessity and advisability of the ordinance is for the legislative power to determine. The presumption is in favor of the ordinance.” (City of Rochester v. Macauley-Fien Milling Co., 199 N. Y. 207, 211; see, also, Defiance Milk Prods. Co. v. Du Mond, 309 N. Y. 537, 543-551; Good Humor Corp. v. City of New York, 290 N. Y. 312, 321-324.) We may not sit as a super-legislature — to weigh the wisdom of legislation. Legislators have constitutional authority to experiment with new techniques and they are entitled to their own standard of the public welfare. (Day-Brite Lighting v. Missouri, 342 U. S. 421, 423; Daniel v. Family Ins. Co., 336 U. S. 220, 224; Carolene Prods. Co. v. United States, 323 U. S. 18, 31-32, where it was said: “ the methods which it [the legislative body] employs to carry out its purposes are beyond attack without a clear and convincing showing that there is no rational basis for the legislation; that it is an arbitrary fiat.”)

Fuld, Froessel and Burke, JJ., concur with Van Voorhis, J.; Desmond, J., dissents in an opinion in which Conway, Ch. J., and Dye, J., concur; Conway, Ch. J., dissents in an opinion in which Desmond and Dye, JJ., concur.

Judgment of Appellate Division reversed and that of Trial Term reinstated, with costs in this court and in the Appellate Division.  