Village of Deposit v. Pitts , 25 N.Y. Sup. Ct. 475 ( 1879 )

LuabNed, P. J.:

It is not necessary to inquire whether, without special authority in the charter, the board of trustees could have passed the by-law in question. They are specially authorized to restrain or prohibit sales by auction. And they did prohibit such sales. They were authorized to grant licenses to auctioneers ; and of course such license, when granted, relieved the licensed parties from the prohibition.

If they had a power to grant licenses to auctioneers, this must have meant a license to sell at auction. The ordinance speaks of a license to sell at auction ; the charter of licenses to auctioneers. The expressions are the same in meaning. A license to sell at auction is a license to bo an auctioneer for the time.

The defendants urge that the board of trustees could not delegate the power of licensing to the president. Whether they could or not docs not seem to be material. The defendants arc sued for selling at auction without a license. Their answer is, that the president had no authority to license them, but that the authority was in the board of trustees. Then they should have obtained a license from the board. The board of trustees has not given them a license, nor has the president. If he had no power to give a license, it may possibly be that auctions are absolutely prohibited in the village. This is not a case where something is claimed against the defendants on the ground of the affirmative action of the president. It is, therefore, unlike Birdsall v. Clark (6 N. Y. Week. Dig., 428). In fact, by the charter itself, the president is to execute licenses. (Law 1873, chap. 330, tit. 5, sect. 2.)

There is no doubt that the sales conducted by the defendants were auctions. They oifered the property at a certain high price and then gradually lowered the price till some one accepted it as a purchaser.

A question of some difficulty is, whether an ordinance can impose a variable penalty, as for instance, a penally of not more than tea dollars, nor less than one dollar. It is at least doubtful •whether such an ordinance imposes anything more than a penalty of one dollar for each oifence. But the recovery was only for six dollars; and several offences were proved. It does not appear that the defendants insisted on this point at the trial. And we cannot say that anything more than one dollar was recovered for each offence. We think that the defendants, if they relied on this defence at the trial, should have stated it distinctly.

Some cases are cited by the defendants which are thought to show that the ordinance was void.

Dunham v. Trustees (5 Cow., 462), is a case where the act authorized the trustees to “ make such prudential by-laws,” etc., as they might deem proper, * * * “ relative to taverns, gin shops and huckster shops.” A by-law was passed imposing a penalty on every person keeping a huckster shop without license. The court held that the by-laws were to be “ prudential,” and that it was not shown how the huckster shops could bo au evil. The statute, in the present case, does not contain the word “prudential,” and expressly authorizes the trustee to prohibit auctions.

The Mayor v. Thorne (7 Paige, 261), decided that an injunction was not a proper remedy to enforce obedience to a by-law.

The Trustees v. Buel (43 How., 155), held that a resolution, that a certain individual should remove au awning under a penalty named, was not an ordinance under the meaning of the charter.

In the case of Commonwealth v. Stodder (2 Cush., 562), there was nothing in the statute authorizing the city to grant licenses ; the only authority being to adopt rules “ for the due regulation ” of omnibusses, etc. And it •was held that the requirement of the payment of money as a condition of receiving a license was not legal. It will be seen, therefore, that the city was by the statute neither authorized to prohibit the running of omnibusses nor to require a license therefor. While the statute, now in question, expressly authorizes the trustees to prohibit auctions, and also to grant licenses to auctioneers. And it would seem to follow that if the trustees can absolutely prohibit auctions, they can specify the terms on which they will grant licenses.

Thus it will be seen that the cases relied upon by the defendants differ from the present in this respect, that here the trustees were acting under authority conferred by the express language of the statute.

The judgment should be affirmed, with costs.

Present — Leagued, P. J., BoaedMAN and Follett, JJ.

Judgment affirmed, with costs.