Trio Distributor Corp. v. City of Albany

• Citation: 163 N.Y.S.2d 585,2 N.Y.2d 690,143 N.E.2d 329
• Parties: , 143 N.E.2d 329 TRIO DISTRIBUTOR CORPORATION et al., Appellants, v. CITY OF ALBANY et al., Respondents.
• Decision Date: 16 May 1957
• Court: New York Court of Appeals

Page 585

163 N.Y.S.2d 585

2 N.Y.2d 690, 143 N.E.2d 329

TRIO DISTRIBUTOR CORPORATION et al., Appellants, v. CITY OF ALBANY et al., Respondents.

Court of Appeals of New York.

May 16, 1957.

John P. McGrath, New York City, Charles B. Sullivan, Albany, Jeremiah T. Mahoney, George A. Spohr, Jr., P. E. Conforti, New York City, and J. Joseph Murphy, Albany, for appellants.

Harold E. Koreman, Corp. Counsel, Albany, for respondents.

VAN VOORHIS, Judge.

This appeal involves the validity of an ordinance adopted by the City of Albany May 21, 1956, regarding itinerant vending in public streets and places. The corporate plaintiff is the distributor in Albany of ice cream products of Good Humor Corporation, which engages in this kind of business in some eight different States. This business consists in pedding ice cream products in city streets by means of specially designed, sanitary, refrigerated, automotive trucks of uniform type and equipment in charge of a single employee. Four of these trucks were in use in Albany when the events giving rise to this litigation occurred. Good Humor Corporation uses between two and three thousand similar trucks in various cities.

This action is brought by the corporate plaintiff and one of its drivers engaged in vending ice cream in the manner stated, for judgment declaring this city ordinance unconstitutional, and enjoining the enforcement of it against them.

The operative paragraph of this ordinance is as follows: ' § 2. When any person shall vend or peddle from a vehicle in the public streets and places in the City of Albany, and, in the pursuit of such business or activity, children shall collect, assemble or gather about such vehicle for the purpose of making purchases, such person so vending and pedding, and the pursuit of such occupation, shall be accompanied by an attendant whose sole duty and occupation shall be to protect and safeguard the children from injury and the hazards of street vehicle traffic and he shall maintain a constant look-out for approaching vehicles and shall warn the children and guard them from injury.'

Violations are punishable by a fine of not to exceed $100, or by imprisonment for not to exceed 10 days or both. Although the ordinance does not say that violation constitutes a misdemeanor, section 42 of the Second Class Cities Law, McK.Consol.Laws, c. 53 so provides.

This type of business, however conducted, has encountered protracted litigation in the courts of this and other States. The leading case in this State is Good Humor Corp. v. City of New York, 290 N.Y. 312, 49 N.E.2d 153, in which an ordinance prohibiting itinerant peddling on the streets of New York City was held to be unconstitutional. Similar ordinances have met a similar fate in other States (Commonwealth v. Rivkin, 329 Mass. 586, 109 N.E.2d 838; New Jersey Good Humor v. Board of Com'rs of Borough of Bradley Beach, 124 N.J.L. 162, 11 A.2d 113; Frecker v. City of Dayton, 153 Ohio St. 14, 90 N.E.2d 851, affirming 88 Ohio App. 52, 85 N.E.2d 419; Schul v. King, Ohio Com.Pl., 70 N.E.2d 378; Frecker v. City of Zanesville, Ohio Com.Pl., 72 N.E.2d 477). Itinerant vending has been upheld here as an established occupation, not to be legislated or regulated out of existence (Good Humor Corp. v. City of New York, supra; Village of Stamford v. Fisher, 140 N.Y. 187, 191, 35 N.E. 500, 501; City of Buffalo v. Linsman, 113 App.Div. 584, 98 N.Y.S. 737; Collender v. Reardan, 138 App.Div. 738, 743, 123 N.Y.S. 587, 590; People ex rel. East Side Harlem Storekeepers Ass'n v. Hylan, 118 Misc. 341, 342, 194 N.Y.S. 179, affirmed 202 App.Div. 745, 194 N.Y.S. 969; People v. Gilbert, 68 Misc. 48, 52, 123 N.Y.S. 264, 267).

Although reasonable regulation of itinerant peddling in the streets of municipalities is permitted, 'When regulation becomes destruction, it ceases to be regulation.' Eighth Ave. Coach Corp. v. City of New York, 286 N.Y. 84, 94, 35 N.E.2d 907, 912. A peddler's ordinance cannot be used by indirection to prevent the conduct of a lawful business (Saidel v. Village of Tupper Lake, 254 App.Div. 22, 4 N.Y.S.2d 814). An ordinance will be invalidated purporting to regulate a lawful activity, where its purpose is 'to prohibit by onerous and exasperating restrictions, under the guise of regulation'. People ex rel. Phillips v. Raynes, 136 App.Div. 417, 423, 120 N.Y.S. 1053, 1057, affirmed 198 N.Y. 539, 92 N.E. 1097.

The present ordinance is the most recent of a series of measures adopted in Albany against this type of business. An earlier ordinance was held unconstitutional in 1950, which proscribed peddling on certain streets and parkways unless the peddler had resided for six months in Albany (Schrager v. City of Albany, 197 Misc. 903, 99 N.Y.S.2d 697). In 1955 the health of children rather than their protection from automobiles was considered to be menaced by this type of business. A provision was incorporated into the sanitary code of the Albany County Health District in that year requiring that trucks such as these be manned by two employees for sanitary reasons, lest the hands of the driver might contaminate prepackaged Good Humor products by being soiled from driving the truck. That ordinance provided that 'The operator, or driver, of any such vehicle shall not sell or dispense any such food. The person who actually sells, dispenses, or handles the food shall comply with Section 4 of Article IV of this code, and he shall not drive or operate the vehicle or perform other duties unless adequate facilities are present for the washing of hands before food is handled or dispensed.' A preliminary injunction against enforcement of that sanitary code regulation in conjunction with the city ordinance was granted by Special Term on June 21, 1955, in an action by the corporate plaintiff. An appeal therefrom was taken to the Appellate Division which has not been moved for argument by the City and is still pending. Except for that injunction, Good Humor vending trucks would be obliged to have a full complement of three men each, one to drive the truck, one to sell the ice cream containers after washing his hands, and the third to warn away whatever children congregated near the truck.

During the three years while the corporate plaintiff has been operating 2,250,000 individual sales have been made in this type of business to customers in Albany. Two years prior to the adoption of this ordinance two minor accidents occurred to children. Then itinerant peddlers were under attack by the former ordinance requiring two men upon each truck, for sanitary reasons. After that ordinance had proved to be abortive, the present ordinance was adopted requiring two employees on each truck for a different reason. It seems clear that the cost of two men on each truck would be prohibitive.

It cannot be doubted that some forms of regulation of this industry would be related to the public safety, health, morals or welfare, such as prohibiting sales made to children in the streets outside of the curb. Under reasonable rules prescribing the conduct of this occupation, the discretion of the municipal legislative body would not be subject to review in the courts. Here, however, there is nothing to indicate that a second employee upon a truck to maintain a general lookout for children would be more intimately related to the public safety, than the presence of a second employee to prevent the driver from handling prepackaged ice cream products would be related to the public health. Such an employee could have no authority to direct or supervise children who might be attracted by the truck, nor is he provided by the ordinance with rules or standards governing the manner in which he is to secure the safety of children. The mere presence of two persons upon one vehicle signifies nothing by itself. If children will stand in the street, two employees have no more power or authority to drive them upon the sidewalk than one. An ordinance could prohibit an itinerant vendor from selling to any person while standing in the street, to refrain from peddling in specified congested thoroughfares during rush hours, and the like. But the generality of this enactment concerning the function and duty of the extra attendant required to be upon a vehicle, without supplying him with particular rules to follow or authority to enforce them, leaves too attenuated a connection between this ordinance and any of the foundations of the police power to sustain its validity.

Although this purports to regulate rather than to prohibit this business, it bears the earmarks of having been adopted for the same reasons as the one which was presented in Good Humor Corp. v. City of New York, 290 N.Y. 312, 49 N.E.2d 153, supra, and the other cases that have been cited. Itinerant vendors are not subject to local taxation but compete with merchants who are. The situation has been described in City of Buffalo v. Linsman, 113 App.Div. 584, 586, 98 N.Y.S. 737, 738, supra, and by the Michigan court in Chaddock v. Day, 75 Mich. 527, 531-532, 42 N.W. 977, 4 L.R.A. 809. As is observed in the case last cited, he police power is not designed to aid one group in a community against another, as the courts of this State have frequently had occasion to hold (Defiance Milk Products Co. v. Du Mond, 309 N.Y. 537, 132 N.E.2d 829, prohibiting sales of evaporated skimmed milk in containers holding less than 10 pounds; Hauser v. North British & Mercantile Ins. Co., 206 N.Y. 455, 461-462, 100 N.E. 52, 53, 42 L.R.A.,N.S., 1139, requiring insurance brokers to make insurance brokerage their principal business unless they also are real estate agents or brokers; People ex rel. Duryea v. Wilber, 198 N.Y. 1, 90 N.E. 1140, 27 L.R.A.,N.S., 357, requiring the licensing of dancing academies; People ex rel. Phillips v. Raynes, 136 App.Div. 417, 120 N.Y.S. 1053, affirmed 198 N.Y. 539, 92 N.E. 1097, supra, licensing the sale of goods manufactured by convicts; People v. Ringe, 197 N.Y. 143, ...