City of Albany v. Newhof

Van Kirk, P. J.

The plaintiff, city of Albany, has a judgment restraining defendants from slaughtering cattle on their premises in that city. It alleges that defendants are unlawfully so doing without the consent of the city council. The answer sets up denials which question the validity of the ordinance and that section 42 of the Second Class Cities Law authorizes the action. The pleadings do not raise the question whether, if consent were asked, it would be granted.

Article 12, section 3, of the Constitution grants to every city power to enact “ local laws, not inconsistent with the Constitution and laws of the State, relating to * * * the protection of their [its inhabitants] property, safety and health.” The city ordinance provides (section 21): “It shall not be lawful for any person, without permission from the Common Council, to slaughter cattle, sheep or swine in any building now erected or hereafter to be erected, or otherwise, within the territory hereinafter described.” This ordinance is a legislative act of the common council, authorized both by Legislature and Constitution (Second Class Cities Law, § 30; Const, art. 12, § 3); being such it is as obligatory as if enacted by the Legislature itself. (City of Buffalo v. N. Y., L. E. & W. R. R. Co., 152 N. Y. 276, 280; Village of Carthage v. Frederick, 122 id. 268; McCabe v. City of New York, 213 id. 468, 484.) It is not inconsistent with the Constitution or any State law and it relates to the protection of the property, safety and health of the inhabitants of the city.

Slaughtering cattle is a proper subject of municipal regulation. It is a power which rests in the State and may be delegated to a municipality. (Slaughter-House Cases, 83 U. S. 36, 62, 63; 2 Dillon Mun. Corp. [5th ed.] p. 1048.) Such an ordinance is valid, though the city council acting in its legislative capacity placed the dispensing power in itself. (Matter of Larkin Co. v. Schwab, 242 N. Y. 330, 334; Fischer v. St. Louis, 194 U. S. 361.) Nor is there discrimination in that consent to slaughter cattle within a restricted district depends upon the act of the common council as an administrative body. As said in the Larkin Case (supra), speaking of the ordinance then being considered: “ It makes a general rule, but maintains the right to create exceptions. It does not deny to any person the equal protection of the laws nor deprive him of liberty or property without due process of law. * * * It assumes that the council will exercise its discretion honestly, without unreasonable discrimination against particular persons or classes, and solely as the result of decision that special circumstances dictate exception to general rule. The purpose of the statute is to authorize discrimination on reasonable grounds, for the purpose of granting consent. An applicant is deprived of his rights only when unreasonable discrimination is shown to dictate the refusal. The courts may not interfere with discretion as to when exception shall be made, nor formulate standards to be used in the exercise of that discretion; they may interfere only when it is clearly shown that refusal is based solely upon grounds which as matter of law may not control the discretion of the council.” The further use for the prohibited purpose of an establishment at present in operation may be forbidden under such an ordinance. (Cronin v. People, 82 N. Y. 318; Fischer v. St. Louis, 194 U. S. 361; 3 McQuillin Mun. Corp. [2d ed.] § 963, p. 158.)

The general rule under this ordinance is that slaughtering of cattle within a restricted district and without the consent of the common council is prohibited. The court has found that the defendants’ plant is within the restricted district; that slaughtering of cattle is being carried on on defendants’ premises without permission of the common council, and that no consent has been given. These findings are well supported in the record.

The fact remains that, if defendants had asked permission, the common council could have given its consent to the use of defendants’ premises, for slaughtering cattle.

It seems to us that the decision of the trial court is right. The ordinance is a valid exercise of the power of the common council of the city as a legislative body. The interdiction is absolute, except in a case in which the common council sitting as an administrative body has given its consent. No consent has been given or applied for and we cannot say on this record that, if properly applied for, the common council would have refused to grant it. There is no proof in this case that the provisions of the ordinance in itself are unreasonable or oppressive. Had there been a denial of consent, there is evidence in the case which would strongly controvert the determination. Since there has been no such determination we cannot say that the common council, acting as an administrative body, has acted unreasonably or arbitrarily. The comments of the court in Lang’s Creamery, Inc., v. City of Niagara Falls (251 N. Y. 343), beginning at the bottom of page 346, seem to us quite apt in this case. We suggest this upon the ground that the question of reasonableness relates only to the act of the common council in granting or refusing consent and not to the ordinance itself. There is no provision in the ordinance naming conditions under which a permit therefor must be granted or must be refused. The ordinance does not declare the slaughtering of cattle to be a nuisance, but leaves the determination as to the consent dependent upon the facts of each case. If consent be refused, then whether or not the determination was a reasonable and proper exercise of discretion could be judicially reviewed.

Section 42 of the Second Class Cities Law gives authority for the maintaining of this action.

The judgment should be affirmed. The plaintiff should be restrained from enforcing its judgment until defendants have had a reasonable opportunity to apply for consent to continue their business.

Hinman and Hill, JJ., concur; Davis, J., dissents, with an opinion, in which Hasbrouck, J., concurs.