People ex rel. Moskowitz v. Jenkins

• Decision Date: 25 April 1911
• Citation: 202 N.Y. 53,94 N.E. 1065
• Parties: PEOPLE ex rel. MOSKOWITZ v. JENKINS, Chief of Police.
• Court: New York Court of Appeals Court of Appeals

202 N.Y. 53

94 N.E. 1065

PEOPLE ex rel. MOSKOWITZ

v.JENKINS, Chief of Police.

Court of Appeals of New York.

April 25, 1911.

Appeal from Supreme Court, Appellate Division, Third Department.

Application by the People of the State of New York, on the relation of Philip Moskowitz, for a writ of habeas corpus against Fred Jenkins, as Chief of Police of the City of Glens Falls. From an order of the Appellate Division, Third Department (140 App. Div. 786,125 N. Y. Supp. 817), affirming an order of the Special Term, which remanded the relator into custody, he appeals. Reversed, and relator discharged.

Henry W. Williams, for appellant.

J. Edward Singleton, for respondent.

CULLEN, C. J.

[1] The relator was arrested for conducting a transient retail business in the city of Glens Falls for the sale of goods represented and advertised as a bankrupt stock without having obtained a license as required by section 85 of the general Municipal law. Thereupon he sued out a writ of habeas corpus, which, after a hearing on the return day, was dismissed and the relator remanded to custody. On appeal this order was affirmed at the Appellate Division by a divided court. The sole question in the case is the constitutionality of the statute and the validity of the action of the city authorities thereunder.

The section of the law is as follows: ‘No person whether acting as principal or as agent for another, shall conduct a transient retail business in any store in any city of the third class, village or town of this state for the sale of goods which shall be represented or advertised as a bankrupt stock, or as assigned stock, or as goods damaged by fire, water or otherwise, or by any such like representation or device, without first taking out a license therefor from the mayor of such city, president of such village or the supervisor of such town. The amount of the fee for such license in any city shall be fixed by resolution duly passed by the board of aldermen or common council, and in a village by resolution duly passed by the board of trustees of such village; and in a town by resolution of the town board of such town. Such fee shall not be less than twenty-five dollars nor more than one hundred dollars per month in a city or an incorporated village, and not less than ten dollars nor more than fifty dollars per month in a town. No such license shall be issued for a less period than one month and it shall be renewed monthly during the continuance of such business . The sum paid as license fees shall, in a city or village, be paid to the treasurer of such city or village, and in a town to the supervisor thereof, to be used for city, village or town purposes. Any person as principal or agent conducting a transient retail business as described in this section, without obtaining a license therefor, shall be guilty of a misdemeanor and upon conviction thereof shall be fined a sum not less than one hundred dollars nor more than two hundred dollars, and in default of the payment thereof shall be imprisoned for a period of not more than sixty days.’

Acting under this provision, the city of Glens Falls, which is one of the third class, passed an ordinance fixing the license fee at $100 a month. If the statute can be sustained as an exercise either of the police power or of the power of taxation, the decisions below are right, and must be affirmed. We think it can be upheld from neither point of view, and shall first consider it as enacted under the police power. Of course, I shall not attempt to define either the extent or the limits of that power, as that is a task that has thus far not been successfully essayed. Nor shall I refer to many of the decisions which have passed upon the validity or invalidity of legislative enactments as within or extending beyond the limits of the police power. The only branch of that power under which it is contended that the present statute can be upheld is for the prevention of fraud. If it is reasonably, though mistakenly, directed to that object, it is good. It seems to me, however, to have no such purpose. It is said that the representation that the goods in question are a bankrupt or damaged stock induces customers to believe that they are of a high grade or quality and will be sold cheap, and for much less than their original cost, while as matter of fact they are of an inferior grade. That the representation may induce customers to believe that they can get a bargain may be assumed, but the representations enumerated in the statute have no relation to the quality and character of the goods, or, if any, certainly not to enhance or exaggerate such character. It can be readily seen how a statement that a stock of goods had not been damaged by fire, water, or otherwise might constitute a fraudulent representation as to their character or condition, but it is not easily perceived how a statement that they had been damaged could constitute such. But, even though a statement that the goods had been damaged would be held an immaterial allegation in an action at law for fraud, I concede that no vendor has a right to tell a falsehood as to his goods, be it material or immaterial, and that the Legislature may properly pass laws to prevent or punish false statements. The legislation before us does nothing of the kind. If the man pays his license fee, he may sell the goods without penalty, though his statement that they are damaged or bankrupt stock is entirely untrue. He may utter any falsehood concerning his goods other than those mentioned in the statute, and he may sell without license fee. But a vendor may own goods which have been purchased at a sale of a bankrupt or damaged by fire, and he has the unqualified right to sell them and the unqualified right to tell the truth about them. He cannot under the exercise of the police power be prohibited from enjoying both these rights. ‘The right to buy, sell, barter, and exchange property is a necessary incident to its ownership, and, subject to reasonable regulations, is as much protected by this provision of the Constitution as is the ownership itself.’ City of Carrollton v. Bazzette, 159 Ill. 284, 42 N. E. 837,31 L. R....