Village of Carthage v. Frederick

• Decision Date: 07 October 1890
• Parties: VILLAGE OF CARTHAGE v. FREDERICK.
• Court: New York Court of Appeals Court of Appeals

122 N.Y. 268

25 N.E. 480

VILLAGE OF CARTHAGE

v.FREDERICK.

Court of Appeals of New York, Second Division.

Oct. 7, 1890.

Appeal from supreme court, general term, fourth department.

This action was brought by the village of Carthage against Carlos L. Frederick to recover a penalty from the defendant for violating a municipal ordinance of the village of Carthage of which the following is a copy, viz.: ‘Sec. 29. It shall not be lawful for any owner, occupant, tenant, or any person having the charge or control of any premises, lot, tenement, or manufacturing establishment, situated within the village of Carthage, to suffer or permit any snow, ice, or other substance to collect or remain on any sidewalk fronting on or belonging to said premises, so as to impede, obstruct, or render dangerous public travel upon such walks, later than 10 o'clock in the forenoon of any day after the same shall have fallen or collected thereon, or for more than two hours after being notified by the president, or any of the trustees of said village, to remove the same. Any person or persons offending against the provisions of this act shall be liable to pay a fine of not less than $1, and not to exceed $10, for each and every offense, to be sued for and collected the same as other penalties, with costs of suit.’ Upon the trial it appeared that this ordinance had been duly passed by the board of trustees, and posted and published, as required by law. It also appeared that on the 13th of February, 1885, the defendant violated the same by suffering and permitting snow to collect and remain upon the sidewalk in front of the premises occupied by him within said village to the depth of from one to two feet, until after 10 o'clock in the forenoon of that day, and that public travel over said walk was thereby impeded, obstructed, and rendered dangerous. A judgment of the county court of Jefferson county, affirming a judgment for plaintiff rendered in the police court of the village of Carthage, was affirmed, and defendant appeals.

Kilby & Kellogg, for appellant.

Watson M. Rogers, for respondent.

VANN, J., ( after stating the facts.)

A municipal corporation possesses not only the powers specifically conferred upon it by its charter, but also such as are necessarily incident to, or may fairly be implied from, those powers, including all that are essential to the declared object of its existence. Le Couteulx v. City of Buffalo, 33 N. Y. 333;Ketcham v. City of Buffalo, 14 N. Y. 356; Railroad Co. v. City of Buffalo, 5 Hill, 209; 1 Dill. Mun. Corp. § 89; Ang. & A. Corp. 346, 364; 2 Kyd, Corp. 149. An ordinance adopted by such a corporation, pursuant to authority expressly delegated by the legislature, has the same force within the corporate limits as a statute passed by the legislature itself. Village of Gloversville v. Howell, 70 N. Y. 287;City of Brooklyn v. Breslin, 57 N. Y. 591, 596;Presbyterian Church v. Mayor, etc., 5 Cow: 538, 541;McDermott v. Board, 5 Abb. Pr. 422; Grant, Corp. 77. Where, however, the power to legislate is general or implied, and the manner of exercising it is not specified, there must be a reasonable use of such power, or the ordinance may be declared invalid by the courts. Dunham v. Trustees, 5 Cow. 462;Cronin v. People, 82 N. Y. 318; Commissioners of Northern Liberties v. Northern Liberties Gas Co., 12 Pa. St. 318; Mayor, etc., v. Thorne, 7 Paige, 261;In re Frazee, 63 Mich. 396, 30 N. W. Rep. 72;Town of State Center v. Barenstein, 66 Iowa, 249, 23 N. W. Rep. 652;City of Mankato v. Fowler, 32 Minn. 364, 20 N. W. Rep. 361;City of Clinton v. Phillips, 58 Ill. 102; 1 Dill. Mun. Corp. § 328; Cooley, Const. Lim. 243. The trustees of the village of Carthage were authorized by the act of incorporation to enact ordinances for various purposes, and, among others, to prevent incumbering the sidewalks with any substance or material whatever; to provide for keeping them clear from snow, ice, dirt, and other obstructions; to direct the sweeping and cleaning of streets in said village by the persons owning or occupying the premises fronting thereon; ‘and generally the said trustees' were empowered to pass such ordinances, ‘not inconsistent with the laws of the United States and of this state, as may be necessary and proper for carrying into effect the purposes of said corporation, and the powers and privileges granted’ by said act, and not inconsistent therewith, ‘and for the enforcement of such by-laws, ordinances, rules, and regulations.’ They were also authorized to prescribe such penalties as they should deem proper for a violation thereof, not exceeding $100 for each offense. Laws 1869, pp. 1975-1978, c. 834. By a later act, exclusive jurisdiction was conferred upon the police justice of the village in all actions brought to recover fines or penalties for a violation of the charter or of the ordinances passed thereunder. Laws 1872, p. 1372, c. 564. We think that the special grant of power to enact ordinances to prevent incumbrances upon the sidewalks, and to provide for keeping them free from snow, when considered in connection with the general grant of power to pass all such ordinances as are necessary for carrying into effect the purposes of the corporation, and the powers conferred by the charter, is sufficient to authorize the adoption of the ordinance in question. It is fair, impartial, and general; is consistent with the general legislation of the state; and is a reasonable exercise of the powers conferred by the legislature. Mayor, etc., v. Williams, 15 N. Y. 502; People v. Mattimore, 45 Hun, 448. The defendant, however, insists that said ordinance is unconstitutional, because it assumes to authorize the taking of private property for public use without just compensation. Const. St. N. Y. art. 1, § 6. It is made the duty of the legislature, by the constitution now in force, to provide for the organization of cities and villages; but, as a recent writer has said, ‘the right of the legislature, in the entire absence of authorization or prohibition, to create towns and other inferior municipal organizations, and to confer upon them the powers of local government, and especially of local taxation and police regulation usual with such corporations, would always pass unchallenged.’ Cooley, Const. Lim. (5th Ed.) p. 228. During the early history of the state, when the constitution was silent upon the subject, cities and villages were incorporated by the legislature, and extensive powers of local legislation were conferred upon them, including the right to pass by-laws or ordinances, to inflict fines and penalties for their violation, and to collect the same through the courts. Laws 1785, c. 83; Laws 1790, c. 49; Laws 1794, c. 36. As early as 1785, by the charter of the city of Hudson, the right to legislate in regard to the ‘police’ power was expressly conferred. Laws 1785, c. 83, § 11. This power was then well known to the common law, and 20 years before had been defined by Blackstone as ‘the due regulation and domestic order of the kingdom, whereby the individuals of the state, like members of a well-governed family, are bound to conform their general behavior to the rules of propriety, good neighborhood, and good manners, and to be decent, industrious, and inoffensive in their respective stations.’ 4 Bl. Comm. 162. Municipal corporations have exercised this power, eo nomine, for time out of mind, by making regulations to preserve order, to promote freedom of communication, and to facilitate the transaction of business in crowded communities. Compensation has never been a condition of its exercise, even when attended with inconvenience or pecuniary loss, as each member of a community is presumed to be benefited by that which promotes the general welfare. All authorities agree that the constitution presupposes the existence of the police power, and is to be construed with reference to that fact. 2 Hare, Const. Law, 766; And. Law Dict. tit. ‘Police.’

Mr. Sedgwick, in his work on Constitutional Law, says that ‘the clause prohibiting the taking of private property without compensation is not intended as a limitation of the exercise of those police powers which are necessary to the tranquillity of every well-ordered community, nor of that general power over private property which is necessary for the orderly existence of all governments. It has always been held that the legislature may make police regulations, although they may interfere with the full enjoyment of private property, and though no compensation is given.’ Sedg. St. & Const. Law, 434-437.

A recent writer upon the Limitations of Police Power says that ‘where the letter of the constitution would prohibit police regulations, which, by all the principles of constitutional government, have been recognized as beneficent and permissible restrictions upon the...