provided that no one should sell milk without obtaining a license from said board of health, and provided penalties for violation of same. Section 3 of said ordinance provided that upon an application being made to said clerk for a milk dealer's license, it should be referred to the milk and dairy inspector, or other authorized agent of this board of health, who shall investigate the conditions under which the milk or cream is being produced, and if he reports that the milk or cream is being produced or handled according to the rules and regulations of said city, and upon payment to said clerk of the license fee, the clerk shall issue a license to said applicant; and it was held that "The fair and reasonable construction of this ordinance requires us to hold that the Board has delegated its licensing power to a milk and dairy inspector, or other authorized agent' appointed by itself. If the duties of the * * * inspector or agent in this respect were of a purely ministerial or executive nature, such delegation of power to him by the Board of Health may be sustained. The rule, however, is well settled that if such delegated duty involves an act of judgment or discretion, and is not merely ministerial, such duty cannot be conferred by the Board or body on whom it primarily rests." The power of the local board of health was derived from section 21 of the Public Health Law, which reads in part as follows: "Every such local board shall make and publish from time to time all such orders and regulations as they may deem necessary and proper for the preservation of life and health, and the execution and enforcement of this chapter in the municipality." authority reposed in Its function in this It seems to me to be otherwise as to the the common council of the city of Utica. regard is legislative; to enact ordinances not inconsistent with law for the preservation of good order, for the peace, health and safety of its inhabitants. An examination of the legislative authority under which the common council of the city of Utica derives its power to act is appropriate in this connection. Section 35 of the charter of the city of Utica (Laws of 1862, chap. 18), and which, so far as I have been able to discover, is unrepealed, provides as follows: "The common council shall have the care, management and control of the property of the city and its finances; it shall have power to ordain, alter, modify and repeal ordinances not repugnant to the constitution and laws of this state, such as it shall deem expedient for the good government of the city. The preservation of peace and good order, the suppression of vice and immorality, the benefit of trade and commerce, and the health of the inhabitants thereof, and such other ordinances, rules and regulations as may be necessary to carry such power into effect." (The italics are mine.) It is also specifically authorized to enact ordinances for the following purposes: "Subdivision 2: To restrain and prevent and to suppress disorderly and gaming houses, billiard tables and all instruments and devices for gaming." Section 30 of the Second Class Cities Law reads as follows: "The legislative power of the city is vested in the common council thereof, and it has authority to enact ordinances, not inconsistent with law, for the government of the city and the management of its business, for the preservation of good order, peace and health, for the safety and welfare of its inhabitants and the protection and security of their property; and its authority, except as otherwise provided in this chapter, or by law, is legislative only." (The italics are mine.) I call particular attention to the provisions of the General City Law, section 19, known as the City Home Rule Act (Laws of 1913): "Section 19. General grant of powers-Every city is granted power to regulate, manage and control its property and local affairs and is granted all the rights, privileges and jurisdiction necessary and proper for carrying such power into execution. No enumeration of powers in this or any other law shall operate to restrict the meaning of this general grant of power, or to exclude other powers comprehended within this general grant." It would be difficult to frame a more concise, more comprehensive, more emphatic grant of power to manage and regulate the government of a city in all the particulars essential thereto than is contained in the section just quoted, and the decisions of the courts of this state rendered prior to the enactment of the aforesaid provision (Laws of 1913) can only be upheld in so far as such decisions are in harmony therewith. But it seems to me that, even before the act of 1913, to which reference has been made, the common council of the city of Utica had the right to delegate the power conferred upon the mayor by the ordinance in question. (People ex rel. Larrabee v. Mulholland, 19 Hun, 548; affd., 82 N. Y. 324.) In this case the relator was convicted of a violation of an ordinance passed by the common council of the city of Syracuse in 1877, declaring it to be a misdemeanor for anyone to peddle or deliver milk from any vehicle in the streets of Syracuse without having first been duly licensed by the mayor, as therein provided. The charter under which the common council of the city of Syracuse acted was chapter 63, Laws of 1857, and provided that the legislative powers of the "City of Syracuse shall be vested in the common council; and contained a provision authorizing the common council to license certain occupations therein specified, but which did not include the peddling or selling of milk, and authorized the mayor to grant such licenses (Laws of 1857, p. 111); and contained (p. 114) the following provision: "The common council shall have power to make, alter, establish, modify, amend and repeal all such ordinances, rules, fire and police regulations, by-laws and resolutions, which are not in violation of the laws of this State, or of the United States, as they shall deem necessary and proper." It was held (19 Hun, 549): The provisions of the charter fully authorized the enactment of the ordinance in question. (City of Brooklyn v. Breslin, 57 N. Y. 591.) In this case the charter gave the common council power to authorize the mayor to grant licenses. In this case, (Bradley v. City of Rochester, 54 Hun, 140.) as it seems to me, the question is precisely presented. This action was brought to recover back sums of money paid by the plaintiff and his assignors to defendant for hucksters' license fees, upon the ground that the licenses in question were void for the reason that it assumed to delegate to the mayor an authority given by statute to the common council itself, and which could only be exercised by it. The ordinance which it was claimed was violated provided that no person should peddle from house to house within the city of Rochester certain commodities. therein named without having a license therefor, under penalty of ten dollars for each offense. Section 2 of the said ordinance provided: "The Mayor of the City of Rochester shall license any proper person to sell as above on a payment therefor of a license fee of fifteen dollars for each wagon employed." The court says on page 141: "Here is no attempt to delegate to the mayor any authority conferred by the charter upon the common council. On the contrary, the enactment of the ordinance was a direct exercise by the common council of the authority conferred upon it, viz., to regulate and restrain (by ordinance). the peddling of certain commodities in the streets of Rochester. This the ordinance seeks to accomplish by establishing a system of licenses for such traffic, and prescribing the license fees to be paid therefor. It does not delegate to the mayor the authority belonging to the common council, but, in the exercise of that authority, imposes upon the mayor a duty appropriate to his office. The authority conferred upon the common council by statute is not to issue licenses, but to make an ordinance providing for licenses to be issued. The duty imposed upon the mayor by the ordinance is to issue the licenses thus provide... for. The imposition of that duty upon the mayor is clearly within the authority conferred upon the common council." (Yellow Taxicab Co. v. Gaynor, 82 Misc. Rep. 95; affd., 159 App. Div. 888, 893.) In this case, on pages 108-109, Seabury, J., uses the following language: Manifestly the board of aldermen cannot itself attend to the work of licensing and inspecting vehicles and conduct the examination of applicants for drivers' licenses. The duties which the ordinance confers upon the bureau of licenses are purely administrative in character and not legislative. The board of aldermen exercised its legislative function in enacting the ordinance. No discretion is delegated to the bureau of licenses to determine whether or not the ordinance should become operative. That it should become operative followed as a matter of course from the fact that it was enacted by the board of aldermen and approved by the mayor, unless the ordinance is itself illegal. Reasonableness of the ordinance.-- The ordinance is presumed to be reasonable. (Matter of Stubbe v. Adamson, 220 N. Y. 459.) In City of Rochester v. Macauley-Fien-M. Co. (199 N. Y. 207), on page 211, Chase, J., uses the following language: "The common council is thus the judge as to what ordinances it will pass for the safety and welfare of the inhabitants of the city and the protection and security of their property, and unless an ordinance passed by it is wholly arbitrary and unreasonable it should be upheld. The necessity and advisability of the ordinance is for the legislative power to determine. presumption is in favor of the ordinance." York Edison Co., 159 App. Div. 786; City of Buffalo v. Hill, 79 id. 402; Village of Carthage v. Frederick, 122 N. Y. 268, opinion, Vann, J., p. 274.) Writ dismissed and the relator remanded. Writ dismissed. The (People v. New |