The sun. [volume] (New York [N.Y.]) 1833-1916, 1910-07-15
, ~, Vtr .Ss rsPtORS 6tsE.

4 NHTHH Nmm 80 nmfNN fFNHfs@fN = N.'AAANA"AH -
the ttY Jourt - One-afa vhish f~-uissd
10 ~ saas i.ttsa % Ffsak Uht-rt ~ ths
rni-.i-fu-annr - havtaf rtolat--i ofdihtnTs
nunin-r 90 th- ssh rHT. shirh fra'l- a.
fnllos.
No s~r-sn - p-ryaas ~ ea-usra'is9 sn-i -
psrmn,st 90 a~sas~d - o-rupY 90 sbs'fns' anF
psstsa - Aag strrvi sithin this si'Y sih go
sassa 90 athsr vshisis unir-- dfa~n ~ 49,
or hsf.s- fsr IN gafr,s-- - -stins 90 sn-nns
fsf ale psanuts sod nsp~osa. and sithsr % thstn
Any Nioiaiisa ~ ,his s-dinAnee shall e"es"'n"
/ q mis.ismsanof
GHh-rt ron,snsie.i that Ms arrest vae
illegal and unla Wftil thai he had rtsh,
10 sell the prohibited AT'irb-- ~ virtue OF
a iicea-s daily tz-uesl 20 him by the ct~sA
% Nassau coahty. this state. a. an honor
ably dt-charwed veteran of the ntsd
states unti.f --rtton ~ Of the general
business Law Of Neu York state. The
practically unsii-put-d facts were that
on Octob~T H. Ipoo. Gilbert ws- In Main
street ODeonta. with hr peanut roa-ter
and corn popper and cart about ~"
feet vide by four feet long GA the roadway
close TO the curb. Ne vas In no way Oh:
structinK trafic. IA. only violation OF
the ordinance vas the sale Of a bag of pop
corn TO an Alderman. for ~hich Gilbert
received Ave cents.
section ~ OF the general business Law
has the following provision. under when
Gilbert qualified
LICENSES 10 soldier aud sailors Every honor
ably dischArsed soldier. sailor or marine OF the
military or naval service % the United states
who 1. q resident OF this state and veteran of
I the late rebellion or % the spanish American
var or who shall have served beyond the ga
shall have the right Ia hawk. peddle. Nend snd
sell By auction hi. own goods, wares and MGR
chandise soticis trade within INT. STATE BY pro
curing . license for tina, purpose IN be issued a.
herein pfoNtdad
on the presentation 10 the clerk ~ any county
In which any soldier sailor marine may reside
Of q eertinosts u honorable discharge
which discharge shall show that the person pre-
senung u IL q veteran Of tbe late rebellion OF OF
| the Spanish American var. such County
Clerk shall issue without cost 10 such soldier
sailor OF marine = license certifying him 20 be en-
Titled 70 the benenss Of this article.
This provision OF the Law. the Court holds.
While formerly subject TO any municipal
regulation a. to licenses. u now absolute.
owing TO the more recent amendment ,see-
ton IS Of the general business law which
reads a. follows
| Municipal reSulAtioas THIS srtlcis shan no,
aHeet the application OF any ordinance, by Law
OF reputation Of . municipal corporatton relating
l - hAwkers and pedlers within the limits OF surh
eorporsuoa. exeept - otherwise provided In acc
'ion q. hereof. but the provisions OF this Arue'e
are ne complied with In addition TO the require
meu,s Of any such ordinance. by Law or regulation
After determining. therefore. that Gilber;
had the RICH, 20 sell his wares on the public
I ~ reefs Of Oneonta, subject only 10 such
| reasonable regulation a. the Board Of Al
derm~n OF rho city nigh, make and not
amounting to a prohibition. the Court pro-
cseds to consider the ordinance In question
and finds that ~ - involved The nr-t
ground Of the de-ision Of Judge Kellogg IL
that the ordinance improperly attempts to
contravene a state statute this n cannot
do because the power NJ a municipal coun-
! ell 90 enact bylaws delegated nv the Legs
lature cannot 10 more extensive than the
po~eF of the dsls=s;ns body.
The appellant here hes not the right.
nevertheless say. the Court. under the
! ItcenAa issued 90 him pursuant 10 the stat
+ uts- of the state TO occupy any stand with
cart sleigh or OF heTwtse. or TO take perma-
nent exclusive possession OF any portion
! Of a highway in city. a. such permanent
! occupancy Of tho streets on HE part would
not come properly within his lawful rights
under his veterans license. a. h" has not
! the right to take exclusive possession OF
! any part thereof
| But continues the Court. -Inasmuch
| a. the occupation ~ lawful the pedler has
equal rights 10 the Use Of the streets with the
tr,okman, cabman or merchant who uses
| the streets. even though II does temporarily
ot,-trurt other-
| for the further reason that n II = partial
| regulation. unreasonable. oppressive. Ia
restraint Of trade Why not permit a sale
| Of peanuts and popcorn from small push
carts run by hand a. we'll as from two horse
! wagons Why IL the sale OF a bag OF pea
nuts from . pushcart q crime and perfectly
| legitimate from wagon drawn by two
horses The reason. observes the Court.
! clearly 10 not obvious. II must he construed
a. special not a. general In it, proposed
oper al on and therefore void II might pos
aibly be assumed tllAt those making the
rdinAnce had IN mind the purpose Of pre-
| wanting distractions in the streets but
! while a man with a team Of horses may he
licensed a man with a two by four cart Il
| absolutely prohibited THIS IL unlawful
di-crimina .on in favor Of class 81 persons
| In the same business There - broad dif.
| ference bet ween regulation and prob ibition
, The Court then cites with approval tho fol-
lowing extract from The opinion 81 Judge
GRAY Of the Court of Appeals In stamford
vs. FISHER. leo y Y. iS7
| The Legislature has power to authorize munIe
ipsI corporations TO regulate havklnE and
I pSStdnng In ifs streets ~ the statute
hov,y,T l. In restriction OF the common Law
and OF the general right Of persons Ia pursue
| legitimate aud Innocent occupation and 70 deal
| rightfuIty and us-fully With their property. 10
should receive . strict construction and Its opera
,lons should 10 confined to those eases In which
La Is plainly discoN erable that mischief exists
and for which the isw was intended 10 provide
| Q remedy
! Judge Kellogg cannot see how the ordI-
| nance in question was necessary or proper
| or that Gilbert had IN any way oh-trncfed
the street TO the injury Of body. In
conclusion he adopts the language Of
Justic. Williams in reversing the conyic-
ton IN the case 81 Buffalo Va Lindsman
A. follows