People Ex Rel. Larrabee v. Mulholland

82 N.Y. 324, 1880 N.Y. LEXIS 362

• Court: New York Court of Appeals
• Decided: October 12, 1880
• Status: Published

Opinion

Per Curiam.

The appellant makes two points why the city ordinance is not effectual against the association of which the relator was a servant.

One, that the whole purpose of it seems to be to impose a tax upon the milk dealers of the city and especially upon the association.

We do not agree in this. The purpose of the city ordinance is not to impose a tax, or to raise a revenue for municipal use. The terms of it show that it is not. By it the mayor is to grant license “to such persons as in his judgment shall appear proper and best calculated to secure to the inhabitants of the city pure and wholesome milk.” Clearly the object of it is the health and comfort of the citizens, by securing to them a supply of pure and wholesome milk. The license and the fee therefor are a means of. regulation and control, and the penalty is a, means of enforcing a proper restraint upon the persons by whom milk is offered. Being such, it was within the scope of the general and particular power of the city to make the by-law. (See city charter, Laws of 1857, chap. 63, p. 11-1; id. Ill; City of Brooklyn v. Breslin, 57 N. Y. 591.)

The other point is, that the- ordinance is in direct conflict with the privileges granted to that association by its charter.

We - do not agree in this. The act of the legislature, by incorporating this association, did not create a privilege to sell milk in Syracuse. Any member of the association might do that as an individual, as well as a corporator. The act or business of selling milk being lawful in itself, needs not legislative leave. Bor, to attain 'the object of furnishing-Syracuse with good milk, was it needful that a corporate body should be created. There are certain advantages supposed to be reached in doing any business in a corporate capacity. It was to obtain these that the privilege to act as a corporation Avas sought for and granted. The act did not so much give the right or privilege to sell, as it declared the purpose for which the corporation was-sought, and awarded to it the right to do, as a corporation, that which any natural person might do without. The franchise given is to sell milk as a corporate body. The mere coming together as corporators gave the persons making the association no more right as a corporate body, within the. bounds of the city, than every one of them already had as an individual. As a private corporation, created and formed to carry on a business already lawful, it is, merely as such, as much and as lawfully affected by the lawful ordinances of the city as a natural person. The power to unite as a corporation, and to sell milk as such in the city of Syracuse, is not a power to sell it in disregard of those ordinances that the city may lawfully make for the regulation of that business within its limits, any more than any other corporate privilege carries with it a right of exercising it in contravention or disregard of municipal ordinances.

The judgment should be affirmed.

All concur, except Rapallo, J., not voting.

Judgment affirmed.