
    City of Buffalo, Respondent, v. John Linsman, Appellant.
    Fourth Department,
    May 3, 1906.
    Municipal’corporation — ordinance prohibiting peddling of farm, produce during certain business hours — restraint of trade.
    A municipal ordinance which prohibits the peddling of fruits, farm or garden. produce ón the city streets between five A. m. and one p. m. is void, being class legislation and in restraint of trade by restricting the sale of such produpts to grocers and shopkeepers.
    
      It seems, that a license to peddle'granted to a war veteran under chapter 371 of . the Laws of 1896, as amended, does not relieve the licensee from compliance with municipal regulations as to licenses..
    McLennan-, P. J., dissented. .
    . Appeal by the defendant, John,Linsman, from an order of the . Supreme Court, made at.the Erie Special Term and entered in the office of the clerk of the county of Erie on the 22d day of December, 1905, affirming a' judgment, of the. Municipal Court -of the— "city of Buffalo in favor of the plaintiff, rendered on the, 16th day of October, 1905. .
    
      John T. Ryan, for the appellant.
    
      Louis E. Desbecker and William B. Frye, for the respondent.
   Williams, J.:

The.order of the Special Term and the judgment of the Municipal " Court should be reversed, with costs.

The action was "commenced by the arrest of the defendant upon a charge of violating section "! of chapter 17 of the ordinances. The Municipal. Court, after a trial, convicted defendant and fined him five dollars and costs. There was a judgment in Municipal Court, ■ and, on appeal, an order of affirmance, by tire’ Special Term of the Supreme Court, hut no judgment entered' on such order. This appeal is from the order and not from any judgment.

The ordinance in question provides, in brief, so far as it affects the question here involved, that no person shall offer for sale upon the streets, any merchandise without first obtaining . a., license from the mayor, and no person shall hawk, peddle or vend any fruits, farm or garden- produce on the streets between five o’clock in the morning and" one o’clock in the afternoon. The defendant, when arrested, was peddling vegetables on the streets, from a wagon, about eleven o’clock in thé forenoon. He had a license from the county clerk, but none from the mayor of the city. He was a war veteran, and his license was issued under chapter 371 of the Laws of 1896, as amended by chapter 659 of the Laws of 1899, and chapter 566 of the Laws' of 1904. By the terms of that act the defendant under his license had the right to hawk, peddle, vend and sell-his ,own goods, wares and merchandise in this State. This act was apparently passed to relieve war veterans from taking the license provided for by section 60 et seq. of the Domestic Commerce Law of the State (Laws of 1896, chap. 376). This latter license, however, did not relieve a person from the effect of any municipal regulations as to license, but was in addition to any such regulations. (§ 64.) And the same would seem to be true under the Veteran Act. (City of Gloversville v. Enos, 35 Misc. Rep. 724,728, 729 ; revd. on other grounds, 70 App. Div. 326.)

There seems to be no controversy as to this proposition on the part of appellant here. Ho exemption from the provisions of the„ ordinance in question is claimed by reason of the license under the Veteran Act. ‘

Section 17 of the city charter (Laws of 1891, chap. 105) provides that the common council shall enact ordinances to license' and regulate hawkers and peddlers, and such other ordinances as shall be deemed expedient for the good government of the city, not inconsistent with the laws of the State. Under these provisions of the charter the ordinance in question was enacted. The ordinance was one licensing and regulating hawkers and peddlers, and was apparently deemed expedient for. the good government of the city. Express power was, therefore, given to enact the ordinances, if it was not subject to objection as to its peculiar provision .prohibiting hawking and peddling between the hours of the day named, five a. m. and one p. m. We are unable to -see how it was necessary or proper to insert this provision in the ordinance. The design was quite apparent, to Benefit grocers and shopkeepers dealing in such articles as the peddlers sold. It was inserted in the ordinance by the procurement and by reason of the importunity of • the Betail Grocers’ Association. It deprived the consumers of the opportunity to purchase their,supplies of the peddlers and compelled them to patronize the grocers and shopkeepers. The prohibited hours covered the time when, the supplies'for the day would ordinarily he purchased. It was in ho sense a proper regulation, and was in. no way necessary for the preservation, of the public health or the good-government of the city. It was an -unfair discrimination and in restraint of trade. It in no way tended to provecí the public health or public order. Hawking.and peddling- is recognized as,a legitimate business hy the Legislature, and is so recognized by the city in its ordinances.. This provision does not relate to-the character of the licensees, or-to the peace and quiet of the city. The portion of "the day excluded wo.uld be no more disturbed than the later part of the day. It is needless to dilate upon the subject. This provision lias no proper place in the ordinance. It was put there for an improper and illegal purpose, not as a regulation for the good government of the city, of to protect the-public health, Or the peace' and quiet of the streets, but in. the interest of, the retail dealers and shopkeepers, improperly discriminating' in their "favor, and was class legislation and'in restraint of trade.

The ordinance was, therefore, invalid and no conviction could properly be had for the violation thereof. ' " •

' The judgment was erroneous and should be révérsed and the defendant discharged. -

All concurred,, except McLennan, P. J., who dissented.

" Order of .Special Term and judgment of Municipal Court reversed with costs.  