City of Brooklyn v. Nodine , 33 N.Y. Sup. Ct. 512 ( 1882 )

Barnard, P. J.:

The ordinances in question are not warranted by the power granted by the legislature. The power given is “ to regulate and license ” * * vehicles of every description used on the public

streets in the conduct and carrying on of any business except that of physicians, established and transacted in said city.” The defendant is a livery stable keeper and his business is not required to be licensed. The ordinance authorizes the mayor to grant licenses for certain classes of business providing that no license shall be granted to “ other than citizens of the United States.”

The ordinance then proceeds to establish a fee for the license in certain specified cases, among them, “For each vehicle drawn by two horses, three dollars. For each vehicle drawn by one horse, one dollar.” It is not against vehicles owned by any person doing business in Brooklyn, but against the owners of such vehicles simply as owners. It covers as well vehicles used for pleasure as for business, and this was beyond the legislative grant of power. Proof cannot be given to show that the defendant conducted a business which might be licensed. If the ordinance does not point out the defendant, of necessity, it is defective. The ordinance is also objectionable because it leaves a discretion to the mayor to license or not. It was for the common council to license or refuse.

The gravest objection to the ordinance is that it is not within the power granted, inasmuch as no attempt is made to “ regulate and license,” but to pass an extensive revenue measure under these words. There is no selection; certain businesses should be carefully guarded. In this ordinance all classes of business mentioned in it may be carried on by those who pay the tax or license therefor. Must a person be a citizen of the United States to be taxed for liis vehicle ? Can a license to use a vehicle be granted to one not a citizen ? Is the defendant a citizen ?' If he is not a citizen must he pay a tax on vehicles which he is not permitted to use and cannot be licensed to use ? Where is the legislative warrant for city legislation against those who are not citizens in so many forms of human labor ?

These are questions which might be considered, but it is not necessary to discuss them. The power to.regiilate and license does not carry the power to tax, which is the only end of. this ordinance. It is competent for the legislature to give the city of Brooklyn power to tax vehicles or other personal property. The' law under which this ordinance was passed, does not give such power.

The judgment overruling the demurrer should, therefore, be reversed, and an order be granted that the demurrer be sustained, with leave to plaintiff to amend in twenty days on payment of costs.

Gilbert, J., concurred, except as to exclusion of aliens.