Opinion
November 11, 1908.
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, 164 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 not 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 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 unwhole-some 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 the 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.