Majority
Headnote
1. Municipal corporations—Ordinances—On subjects covered bt LEGISLATIVE ENACTMENTS—WlIEN VALID.It is contended by the appellant that the ordinance under which he was convicted, is in violation of the charter.
Authority is given by title 3, section 14, of the charter of the city of Albany, chapter 298, Laws 1883, to the common council, “to make * * such laws, ordinances, regulations and resolutions as may be necessary to carry into effect any and all of the powers now vested in or by this act conferred upon the corporation, and shall have power to enforce obedience thereof, by ordaining penalties for each and every offense thereof, * * and shall have power to make such ordinances and prescribe such penalties for their violation in the matters and for the purposes following, in addition to other powers elsewhere specially granted, viz.:
1. To regulate the use of the streets. * * *
8. To regulate the cleaning of the streets, sidewalks and gutters, and removing ice, hail and snow from them, * * *
§ 25 To order and direct * * the cleaning of sidewalks, gutters and streets in front of all lots in said city
Under these powers it was competent for the common council to make the ordinance under which the defendant was convicted. Such ordinance provides:
“§ 29. Every owner or occupant of any house or other building, and the owner or proprietor, lessee or person entitled to the possession of any vacant lot, and every person having the charge of any church, cemetery, jail or other public building in this city, shall, during the winter season, and during the time snow shall continue on the ground, by ten o’clock on every morning, when necessary, clear the sidewalk and gutters in front of such house or other building, and in front of such lot, from snow and ice, and keep them conveniently free therefrom during the day; or shall, in case the snow and ice are so congealed that they cannot be removed without injury.to the pavement, cause the said snow and ice to be strewed with ashes or sand; and shall also, at all times, keep such sidewalk clean and free from all dirt, filth or other obstructions or incumbrances, so as to allow of the citizens using the said sidewalks in an easy and commodious manner; and every person neglecting or refusing to comply with this law shall incur a penalty of two dollars for each neglect or refusal; and the street commissioner, superintendents, the police justices, officers and members of the police are especially enjoined to see this law carried into effect.”
Title 3, section 42, of the charter, provides that the violation of an ordinance shall be deemed a misdemeanor, and upon conviction the offender shall be punished by fine and imprisonment.
But the main ground upon which it is contended that this ordinance violates the charter is, it is alleged that it is inconsistent with the regulation of the same subject-matter as provided by the charter itself. It must be conceded that if the legislature has regulated the matter, the common council has no power to make an inconsistent regulation.
The provisions of the charter which are claimed to be in conflict with the ordinance are contained in title 9, sections 23 to 28, inclusive, as follows:
'‘It shall be the duty of the chief of police to regulate the cleaning and sweeping of the streets, avenues, alleys, sidewalks, wharves, docks, roads and crosswalks, and the cleaning of ice and snow from the sidewalks and gutters in said city.”
The city shall be divided into districts, and the cleaning of such districts shall be done by the occupants or owners of property, in front of such property, to the centre fine of
the, street, in such manner and at such times as may be prescribed by the chief of police or his subordinates.”
“In case the occupants or owners of property shall not clean and sweep the streets * * * or clean the ice and snow from the sidewalks * * * as required by said police,. it shall be the duty of the chief of police or his subordinates to notify the occupant of the house or lot before which such work has not been done, and in case he cannot be found, the owner of each house or lot, and if such work is not done forthwith; or, in case the contractor, whose duty it may be to remove the street dirt or snow, shall fail or neglect to remove the same, the chief of police, or his subordinates, shall at once cause the work to be done, or the dirt or snow to be removed, and the expense of so doing, when certified by the chief of police, shall be paid by the owner or occupant of the property, or charged to the contractor as hereinafter provided.”
‘ ‘ If such owner or occupant shall fail to pay such expense, the occupant, or in case he cannot be found, the owner, shall be arrested upon a warrant to be issued by one of the city magistrates upon the complaint of the chief of police and fined not less than such amount. Such amount of the fine shall be paid to the person doing the work. In case the default shall be upon the part of the contractor, the chamberlain shall pay the expenses * * * and deduct such amount from any amount falling due to the contractor from the city. If neither * * * can be found, the expense * * * shall be assessed upon the property by the board of contract and apportionment, as in case of repairs of streets.”
“The board of contract * * * shall also * * * contract, in accordance with the provisions of this act, for the removal of street dirt.”
A comparison of the ordinance with the provisions of the charter will, show, that the ordinance requires the lot owner to clear off the snow and ice from the sidewalk, or strew the snow and ice with sand or ashes,” so as to allow of the citizens using the sidewalks in an easy and commodious manner.” The charter makes it the duty of such lot owner to clean the snow and ice from the sidewalks “in such manner and at such times as may be prescribed by the chief of police or his subordinates.”
The extent of the requirement in the first case is the “ easy and commodious” use of the walk by the citizens; in the second case it is “as prescribed by said police.” In the former case the lot owner is liable to tie fined for neglect to clear off the walk; in the latter, for failure to pay the expense which the city has incurred for doing it for him.
The ordinance evidently was intended to keep the side
The provisions of the charter may well be satisfied by so regulating the cleaning of the sidewalks and streets as to enable the dirt contractor to remove the obnoxious accumulations of snow and dirt.
The ordinance should be construed as supplying an obvious deficiency in the police regulations. A municipal corporation under the grant of general power to make police regulations, can require the citizens to exercise their rights of property in such a manner as to prevent its becoming pernicious to the citizens generally. Mayor v. Williams, 15 N. Y., 502 -5; Village of Carthage v. Frederick, 35 Alb. L. J., 319.
This ordinance is reasonable. It is a means to promote the usefulness and safety of the sidewalks, and to protect the city from legal liability against damages arising from imputed neglect to keep them in proper condition.
The conviction and judgment should be affirmed.
Bookes, J., concurs._