Cronin v. People , 27 N.Y. Sup. Ct. 137 ( 1880 )


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  • Boardman, J. :

    The practice adopted in reviewing by certiorari the decision of an inferior court, upon a demurred to an indictment, has not been discussed by counsel, and will not, therefore, be considered by this court.

    The common council of the city of Albany passed an ordinance prohibiting the slaughtering of animals within certain described portions of said city. The defendant is charged with the violation of said ordinance by indictment. The violation of such an ordinance is made by statute a misdemeanor. (Laws of 1871, *139chap. 536, vol. 1, p. 1144.) The sufficiency oí' such indictment was demurred to, and the demuirer overruled. That decision is now brought here for review.

    The sole question for review is the power of the common council to enact the ordinance charged to have been violated by defendant.

    By the act of 1842, chap. 275 (pp. 342, 343, 344), the old charter rights of the city of Albany, not theretofore surrendered, were reserved. (See also Const., art. 1, § 18.) Among the powers therein granted were the following : The common council of the city of Albany shall have full power and authority to make laws, ordinances and constitutions in writing, for the good rule, oversight, correction and government of said city, and liberties of the same, and of the several tradesmen, victuallers, artificers, and of all other people and inhabitants of the city, liberties and precincts aforesaid. (Dongan Charter in Laws, etc., of Albany, p. 10, § 13.)

    This provision, if still in force, as is believed, would seem of itself sufficient authority for enacting the ordinance now under consideration. The authority is broad and ample.

    By section 12, subdivision 14 of the Laws of 1870, ch. 77 (pp. 168, 169), the charter of the city, as there amended,-gave the common council power “to regulate the erection, use and continuance of slaughter-houses.” It had power also, by subdivision 22, to make ordinances. “In relation * * * to operations or occupations, noxious to health or comfort,” and by subdivision 34, “for cany-ing into effect and enforcing any of the powers, privileges and rights at any time granted and bestowed upon or possessed by the said corporation.”

    No doubt the Legislature had the right to give the common council power to pass this ordinance. It seems equally clear that it has given it such power. If the city may regulate the continuance of a slaughter-house within its limits,, it must have the lesser power of prohibiting the slaughter of cattle therein. To regulate in the sense, in which it is here used, must mean to restrain; to prescribe rules, subject to which slaughter-houses may be erected, used and maintained in said city. The business itself is not unlawful, but surrounding circumstances may make it highly improper that it-should be conducted in certain localities. Such would be the general opinion of mankind. In such cases the *140right of the individual must or ought to yield to the public welfare. Coercive measures iu such cases have been repeatedly held valid. [Polinsky v. People, 73 N. Y., 65; Metrop. Board of Health v. Heister, 37 id., 661, 668.)

    The evil attempted to be remedied is not essentially different from those considered in the cases cited. It is a different, perhaps more extreme, exercise of power. Its wisdom is not for our consideration. If the-power existed the ordinance is valid. We are quite clear the city, under its charter, had the power to pass the ordinance in question, and that it violates no constitutional right of defendant.

    Entertaining these views, we think the decision upon the demurrer was correct and should be affirmed, and the proceedings should be remitted to the Albany Court of Sessions for such further action therein as may bo proper.

    • LearNed, P. J., and Bocees, J., concurred.

    Order affirmed and proceedings remitted to Albany Court of Sessions for further action.

Document Info

Citation Numbers: 27 N.Y. Sup. Ct. 137

Judges: Boardman, Bocees, Learned

Filed Date: 1/15/1880

Precedential Status: Precedential

Modified Date: 2/4/2022