People v. Reicherter — 128 A.D. 675

Majority

p. 675

The People of the State of New York, Respondent, v. Charles Reicherter, Appellant.

Third Department,

November 11, 1908.

Headnote

Municipal corporations — ordinance regulating sale of cold storage fowl — constitutional law — police power.

A municipal ordinance passed pursuant to legislative authority has the force of law and is as obligatory as if enacted by the Legislature.

The ordinance of the city of Schenectady, enacted under section 36 of its charter, prohibiting the sale or offering for sale within said city of any dead fowl which has been placed in cold storage prior to the removal of the entrails and crop, is a valid exercise of the police power.

Such ordinance is not unreasons,ble, because, by prohibiting such possession for the purposes of sale, it may apply to fowl which have not yet actually become unwholesome. ' *

Appeal by the defendant, Charles Reicherter, from a judgment of the County Court of Schenectady county in favor of the plaintiff, rendered on the 14th day of February, 1908, affirming a judgment of the Police Court of the city of Schenectady convicting the= defendant of violating section 3 of chapter 14 of the laws and: ordinances of said city.

The city ordinance for violating which defendant has been convicted is as follows: ¡No person shall sell or expose for sale any unwholesome, stale, emaciated, blown, tainted, putrid or measly meat, fish, clams, oysters or other provisions, or veal known as bob veal, or sell or expose for sale the carcass or flesh of any calf unless such calf shall have been, at the. time it was killed, at least four weeks old, or sell or offer for sale, or have in his possession for the purpose of sale within this city, any dead domestic fowl, turkey, goose, duck, rabbit or game with the entrails or crop or any part thereof therein; or who shall sell, or offer for sale, any such domestic.fowl, turkey, goose, duck, rabbit or game, which shall have been in cold storage prior to the removal therefrom of the entrails or crop, or any part thereof; and any person offending against the provisions of this section shall be punished by a fine of twenty-five dollars and stand committed until such fine be paid, not exceeding twenty-five days.”

p. 676

Defendant conducts a meat market in Schenectady and his offense consisted in having in his possession for the purpose of sale several ■dead fowls containing the entrails and crops. These fowls had been dead four or five hours and were in a wholesome condition.

Miles R. Frisbie, for the appellant.

Del. B. Salmon, Assistant Corporation Counsel, and William P. Nolan, Corporation Counsel, for the respondent.

■ The ordinance in question was enacted pursuant to section 36 of the charter of the city of Schenectady (Laws of 1903, chap. 371), which authorizes the common council of the city to enact ordinances “ for the government of the city and the management of its business, for the preservation of good order, peace and health, for the safety and welfare of its inhabitants, and the protection and security of their property.”

This ordinance having been passed in pursuance of legislative authority has the force of law and is as obligatory as if it were an act of the Legislature. (City of Buffalo v. New York, Lake Erie & Western R. R. Co., 152 N. Y. 276 ; City of Rochester v. West, 161 id. 510.)

The ordinance is a valid exercise of police power evidently intended to promote the public health and welfare of the community. It is claimed that the prohibition against possession for the purpose of sale should begin at the point when the article ceases to be wholesome and'that the question of wholesomeness or unwholesomeness should be made the test of liability rather than the mere fact of possession irrespective of that question. Manifestly it would be quite difficult, if hot impossible, to fix the line of demarcation between wholesomeness and unwholesomeness in a matter of this kind. The more appropriate test is the reasonableness or unreasonableness of the ordinance having in view the object sought to be attained and the inconvenience or detriment to the dealer against whom the prohibition exists. The end sought by the ordinance is highly commendable having in view the health and sanitary welfare of the community. It imposed on the defendant no unreasonable or oppressive duty. It is in no sense destructive of

p. 677

property but merely regulates its use. It simply transfers from the buyer to the seller the duty of performing that which one or the other must perform without placing any limitations on the seller as to his right to charge an increased price for the performance of such duty. In People v. Van Fradenburgh ( 81 App. Div. 259 ) the order of the board of health, which was condemned, prohibited the defendant from, bringing into the municipality a wholesome substance and using it for a lawful purpose before it became unwholesome and which had in it “no element of threatened danger to the public health or comfort.” Inasmuch as there was no menace to the health of the community, it was held that the board of health was without power to make the order. It may also be said that while there was on the one hand no element of threatened danger to the public, on the other hand the order of the board of health constituted a serious and unreasonable interference with the defendant’s business. There was no reasonable relation between the benefit sought to be conferred on tne public and the injury inflicted on the defendant. That case has no application to the facts here presented.

The judgment of conviction should be affirmed.

Judgment of conviction unanimously affirmed.

Cases cited

City of Buffalo v. New York, Lake Erie & Western Railroad 152 N. Y. 276 N.Y. 1897-03-23 p. 676
People v. Van Fradenburgh 81 App. Div. 259 N.Y. App. Div. p. 677