of being severed from the rest, but where, the severance being made, enough remains to effectuate the object which the Legislature had in view. It will not do, to save legislative enactments from annulment, to strike out provisions which so clearly express the intention of the Legislature as to characterize the purpose of the act and make their presence essential to the existence of the statute. * * *

"The main purpose of this statute was to bring about the appointment of a new police commission in such a way as that its body will be equally composed from two certain political elements dominant for the time in the common council. We cannot assume that the Legislature would have passed this act except as a whole and, therefore, it is our duty, for the reasons assigned, to declare it to be unconstitutional and void."

In Jones v. Jones (supra), the court said: "After giving the point due consideration, we have concluded that the main object of the act of 1886 having failed, we should not divide it into parts, and sustain the portion which is claimed to obviate the necessity of an order allowing the appeal, but that all the provisions are connected as parts of a single scheme, and that the incidental provisions must fall with the failure of the main purpose of the act."

In Employers' Liability Cases (supra), the court said: "Where a statute contains provisions which are constitutional and others which are not, effect may be given to the legal provisions by separating them from the illegal. But this applies only to a case where the provisions are separable and not dependent one upon the other, and does not support the contention that that which is indivisible may be divided. Moreover, even in a case where legal provisions may be severed from those which are illegal, in order to save the rule applies only where it is plain that Congress would have enacted the legislation with the unconstitutional provisions eliminated. All these principles are so clearly settled as not to be open to controversy. They were all, after a full review of the authorities, restated

and reapplied in a recent case. Illinois Central Railroad v. McKendree, 203 U. S. 514, and authorities there cited."

Much has been said by the learned and distinguished counsel representing the defendants as to the lack of power of the board of aldermen to pass an ordinance relating merely to the provision of licensing a theatre ticket broker and requiring him to pay a license fee. He contends that the board has not been vested with this power by the charter of the city of New York, and that it does not possess it under the general provisions of the so-called Home Rule Act. He urges with much force, and cites many authorities to sustain his argument, that the legislature, under both of these provisions, has not vested in the board of aldermen any such broad grant of power so as to authorize it to license ticket speculators, even though it possesses the absolute authority to license a theatre. City of New York v. Dry Dock, East B. & B. R. R. Co., 133 N. Y. 104; 1 Dillon Mun. Corp. (4th ed.), §§ 89, 317, 361; Dunham v. City of Rochester, 5 Cow. 462; Commonwealth v. Stoddard, 2 Cush. 562; St. Paul v. Stoltz, 33 Minn. 233; 28 Cyc. 365-368; City of New York v. Seely-Taylor Co., 149 App. Div. 98, 105; affd. 208 N. Y. 548; People ex rel. Kieley v. Lent, 166 App. Div. 550; affd. without opinion, 215 N. Y. 626; Gibbs v. Luther, 81 Misc. Rep. 611; City of Geneva v. Fenwick, 159 App. Div. 621; Mollnow v. Rafter, 89 Misc. Rep. 495; People ex rel. Klinger v. Rand, 91 id. 276.

In view of my determination that the defect pointed out in section 11a of the ordinance reaches both the price-fixing and licensing provisions, this question need not be considered.

It is, however, necessary to determine whether the license fee was excessive and more than reasonably necessary to reimburse the city for the regulation and supervision of the business of a ticket broker.

It is essential to the validity of an ordinance that its provisions shall be reasonable.

While the reasonableness of an act of the legislature may

not be questioned, this is not the case where the board of alder men passes an ordinance upon a general or implied grant of power from the legislature. In the latter instance there must be a reasonable use of such power by the board of aldermen in the enactment of the ordinance, otherwise it may be declared invalid by the courts. Village of Carthage v. Frederick, 122 N. Y. 268, and cases cited therein; Matter of Stubbe v. Adamson, 220 N. Y. 459; City of Yonkers v. Yonkers R. R. Co., 51 App. Div. 271; City of New York v. Dry Dock, East B. & B. R. R. Co., 133 N. Y. 104.

The fee for the license is fixed at $250, but it is provided that every license shall expire on the first day of May next ensuing the issuance thereof.

The

The ordinance went into effect December 28, 1918. defendants were charged with having carried on business as ticket brokers on February 14, 1919, without a license; consequently, ticket brokers carrying on business after December 28, 1918, were required to pay $250 for a license which would expire May 1, 1919, and an additional fee of $250 after May 1, 1919.

Under section 1473 of the charter, the license fee for conducting a theatre is fixed at $500 per annum. The ticket broker during the year 1919 is required to expend $500 for carrying on his business, and the actual cost of the license for that year is $416.66.

While license fees are sometimes required in connection with the exercise of the police power, and the courts have sustained ordinances in connection with certain businesses where the license fee was not excessive, as in Price v. People, 193 Ill. 114 (employment agency, $200); Brazee v. Michigan, 241 U. S. 340 (employment agency, $100); and Gundling v. Chicago, 177 U. S. 183 (selling cigarettes, $100), nevertheless, the courts have declared ordinances invalid where the amount of the license fee, if more than is reasonably required for the cost of granting the license and proper police regulation, becomes a

revenue measure, and, therefore, an exercise of the power of taxation. It has, accordingly, been held that where the exaction has been imposed under the power to regulate or in the exercise of the police power as distinguished from the power to tax for revenue, the general rule obtains that the sum levied cannot be excessive or more than reasonably necessary to cover the cost of granting the license and proper police regulation. City of Mankato v. Fowler, 32 Minn. 364; 20 N. W. Repr. 361 (auctioneer, $300); People v. Jarvis, 19 App. Div. 466 (peddlers, $5 to $10 per day); Postal Telegraph Cable Co. v. Taylor, 192 U. S. 64 (charging excessive fee for inspecting telegraph poles).

But assuming, and not deciding, that the power was vested in the board of aldermen to enact an ordinance requiring a ticket broker to be licensed, it was unreasonable to require the licensee to pay $500 in the year 1919, even though the actual cost for that year was $416.66, particularly when we take into consideration the fact that at the time ticket brokers were allowed to sell tickets on the streets, they were only required to pay a license fee of $50. Indeed, there was more of a burden placed upon the police heretofore to supervise the business of a ticket broker than there is now when his business is conducted in an office or agency.

It, therefore, seems to me that the license fee for the year 1919 is more than necessary to reimburse the city for issuing the license to the ticket broker and for supervising his business.

·

In People v. Jarvis, supra, the court said: "It is a fundamental and well-settled principle of law that when a municipal corporation is given the power to license useful trades or occupations, it cannot use the license as a tax to raise revenue, nor is it authorized to entirely prohibit the exercise of the trade or occupation by any excessive license fee.' Such is the rule as stated in the American and English Encyclopaedia of Law (Vol. 13, p. 532), and it is fully sustained not only by the cases there cited, but by most writers on the subject, and many de

cisions. Dillon on Municipal Corporations (Vol. 1, § 357 [4th ed.], p. 424) says: Concerning useful trades and employments, a distinction is to be observed between the power to "license" and the power to "tax." In such cases the former right, unless such appears to have been the legislative intent, does not give the authority to prohibit, or to use the license as a mode of taxation with a view to revenue, but a reasonable fee for the license and the labor attending its issue may be charged.' Also, in Cooley on Taxation (2d ed., chap. 19, p. 408) the same rule is laid down. And, in discussing the terms which the statute should use to confer the power to tax, he says: It is, perhaps, impossible to lay down any rule for the construction of such grants that shall be general and at the same time safe, but as all delegated powers to tax are to be closely scanned and strictly construed, it would seem that when a power to license is given, the intendment must be that regulation is the object, unless there is something in the language of the grant, or in the circumstances under which it is made, indicating with sufficient certainty that the raising of revenue by means thereof was contemplated.'' See also, upon

this subject, 2 Dillon on Mun. Corp. (4th ed.), §§ 763, 768; Dunham v. City of Rochester, 5 Cow. 462; City of Brooklyn v. Nodine, 26 Hun, 512.

In Postal Telegraph Cable Co. v. Taylor, supra, it was held that "A license fee cannot be imposed by ordinance of a municipality for purposes of inspection on telegraph companies doing an interstate business which is so far in excess of the expenses of inspection that it is plain that it was adopted, not to repay such expenses, but as a means for raising revenue.”

In Mankato v. Fowler, supra, the court said: “What is a reasonable license fee must depend largely upon the sound discretion of the city counsel, having reference to all the circumstances and necessities of the case. The general rule is that a reasonable license fee should be intended to cover the expense of issuing it, the services of officers, and other expenses directly