
    The Trustees of Rochester vs. Pettinger.
    Where the ordinance of a corporation, forbidding the sale of fresh meat within certain limits, except by persons licensed to sell, contains a proviso in favor of farmers, authorizing them to sell meats, the produce of their farms, a person following the business of a butcher, who sells meats without being licensed, can not claim the protection of the proviso, although the meats come of sheep fattened on his farm, if the farm be used only as an appendage to his business as a butcher.
    Error from the Monroe common pleas. Pettinger was sued in a justice’s court for a violation of an ordinance of the corporation forbidding the sale of fresh meat without license from the trustees. The ordinance, however, containing a proviso in favor of farmers and other persons, who were authorized to sell meat, the produce of their own farms or premises, within certain prescribed limits. The justice rendered judgment against him, and he appealed to the common pleas. On the trial in that court, it was proved that the defendant resided about eight miles from Rochester; that his regular business was that of a butcher ; that he owned a farm of eighty acres, of which twenty acres were cleared and occupied by him as a pastare for the fattening of sheep which he slaughtered and sold; and that he had sold various quantities of meat within the prescribed bounds. The common pleas ruled that he was a farmer, within the meaning of the ordinance, and instructed the jury that if they were satisfied that the meat sold by him came of [266] sheep fattened on his pasture, he was not liable to the penalty created by the ordinance. The trustees excepted, and the jury found a verdict for the defendant. The trustees sued out a writ of error.
    
      J. R. Elwood, for the trustees.
    
      H. Gay, for defendant in error,
   By the Court,

Nelson, Ch. J.

The court below erred in charging the jury that any person of any occupation who owned a pasture and fattened sheep upon it was a farmer, within the meaning of the ordinance, and had a right to vend meat within the proviso. The opinion seems to have regard to the first ordinance on the Subject, as thereby it was declared to be lawful for any farmer or other person.’’ &c., to sell under certain restrictions, meat, the produce of his farm; but the ordinance, for a violation of which this suit is brought, limits the exemption in the proviso to farmers alone; they may sell within a prescribed district certain meats, the growth and production of their own farms. The testimony shows that the regular business of the defendant was that of a butcher, which he followed for a livelihood at the time of the alleged infraction of the ordinance; that he owned a farm in the neighborhood, which he used chiefly, if not wholly, for the benefit and accommodation of his occupation as a butcher; at least, such is the fair inference from the evidence. Now, if the farm was in fact used and occupied as a convenient and profitable appendage to another calling, to wit, the business of butchering, and was not occupied and cultivated as a farm in the ordinary mode of farming, in the common and popular acceptation of the term, he could not he considered as coming within the exception. He would occupy it, not as a farmer but as a butcher, with the view the better to promote.his business in that line. The plain object of the ordinance was, while it protected licensed butchers, to allow farmers to come in and sell the produce of their [267] farms. This is the fair and reasonable meaning of its language, and the jury should have been so instructed, and not that any person owning a pasture or farm, and fattening sheep thereon, in the purview of the law came within the proviso.

Judgment reversed.  