(dissenting). This is an appeal from an order of the Albany Special Term directing the Commissioner of Motor Vehicles of the State of New York to revoke and annul the chauffeur’s license of the respondent, Patrick Matthews, alleged to have been issued to him in violation of subdivision 1-a of section 20 of the Vehicle and Traffic Law of the State of New York.
The petitioner-respondent is a chauffeur licensed pursuant to the provisions of the Vehicle and Traffic Law of the State of New York and is a citizen of the United States.
The respondent, Patrick Matthews, is a subject of Great Britain, a resident of the State of New York and licensed as a chauffeur in the State.
The petitioner alleged that the act of the Commissioner of Motor Vehicles in issuing the aforesaid license to the respondent, Patrick Matthews, was illegal, capricious and arbitrary and in violation of the provisions of subdivision 1-a of section 20 of the Vehicle and Traffic Law.
Subdivision 1-a of section 20 of the Vehicle and Traffic Law provides:
“ 1-a. Citizenship required. On and after the first day of June, nineteen hundred thirty-three, and until the first day of June, nineteen hundred thirty-nine, no chauffeur’s license shall be issued to any applicant twenty-one years of age or over, nor, if issued, shall be valid, unless the applicant therefor shall be an American citizen, or shall have within' six years preceding the date of the issue of such *494license, filed an official declaration of his intention to become a citizen of the United States. On and after the first day of June, nineteen hundred thirty-nine, no chauffeur’s license shall be issued to any applicant twenty-one years of age, or over, nor, if issued, shall be valid, unless the applicant therefor shall be an American citizen. The provisions of this subdivision shall not apply to a person who because of his nationality is precluded from becoming a citizen of the United States, provided he shall have resided in the United States continuously for five years prior to the first day of June, nineteen hundred thirty-three and shall have been licensed in this State as a chauffeur during three full years prior to said first day of June, nineteen hundred thirty-three, nor to a chauffeur employed by an alien while such alien is sojourning or traveling in this country for a period not exceeding six months.”
It is the contention of the appellant that where there is a conflict between a State statute and a treaty entered into by the United States and a friendly nation, the provisions of the treaty are superior and must prevail as against such statute.
It is further contended that such statute is not void, but is merely suspended during the continuance of the treaty, in so far as it is in conflict with the treaty provisions.
The question involved is whether subdivision 1-a of section 20 of the Vehicle and Traffic Law conflicts with the treaties between the United States and Great Britain.
The Treaty of Amity, Commerce and Navigation with Great Britain, commonly called the Jay Treaty, was concluded in 1794. Article II thereof, after making provision for the evacuation of all troops and garrisons from all posts and places within the boundary lines assigned by the treaty of peace (1783) to the United States, then continues as follows: “All settlers and traders, within the precincts or jurisdiction of the said posts, shall continue to enjoy, unmolested, all their property of every kind, and shall be protected therein.”
The Treaty of 1815 to Regulate Commerce and Navigation contains the following provisions in article I thereof: “There shall be between the territories of the United States of America, and all the territories of His Britannick Majesty in Europe, a reciprocal liberty of commerce. The inhabitants of the two countries, respectively, shall have liberty freely and securely to come with their ships and cargoes to all such places, ports and rivers, in the territories aforesaid, to which other foreigners are permitted to come, to enter into the same, and to remain and reside in any parts of the said *495territories, respectively; also to hire and occupy houses and warehouses for the purposes of their commerce; and, generally, the merchants and traders of each nation respectively shall enjoy the most complete protection and security for their commerce, but subject always to the laws and statutes of the two countries, respectively.”
I cannot see that the treaty of 1794 has any application to the question involved in the present case. That treaty simply gave to settlers and traders within the precincts or jurisdiction of said posts the right to continue to enjoy unmolested all their property of every kind. The right was limited to certain persons within the jurisdiction of said posts; it was not a general grant and, therefore, I do not believe that it was applicable to this case.
Under the treaty of 1815 the merchants and traders of each nation were given the right of protection and security for their commerce. The privilege of chauffeurs’ licenses does not come within either treaty. It is a matter that the State has a right to regulate under its police power for the protection of the public and its citizens; it is not a matter of commerce. It does not grant to the inhabitants of Great Britain power to enter this country and to receive a privilege which under the laws of the State of New York is limited to those who are citizens or who have declared their intention of becoming such. (Bobe v. Lloyds, 10 F. [2d] at p. 734.)
The constitutionality of subdivision 1-a of section 20 of the Vehicle and Traffic Law is not in question.
The case of Clarke v. Deckebach (274 U. S. 392) is a case where there was a city ordinance forbidding a license to operate pool and billiard rooms to aliens and it was held that it was not a violation of treaty between Great Britain and the United States because the proprietor of a pool room does not engage in commerce within the meaning of the treaty which merely extends to merchants and traders protection of their commerce.
The case of Asakura v. Seattle (265 U. S. 332) is relied upon by the appellant. That was a case where the city of Seattle had passed an ordinance regulating the business of pawnbrokers and making it unlawful for any person to engage in such a business unless he had a license. To secure a license he had to be a citizen of the United States. The petitioner, a Japanese, brought suit to restrain the enforcement of the ordinance against him. He claimed that the ordinance violated the treaty between the United States and Japan dated April 5, 1911. The court held the ordinance unconstitutional because it was a violation of the treaty. The *496treaty with Japan provided, that the citizens or subjects of each of the contracting parties, had the right to do anything incidental to or necessary for trade, upon the same terms as native citizens or subjects, submitting themselves to the laws and regulations there established. This language of the Japanese treaty is much broader than the treaty with England. As to the things covered by it, the provision establishes a rule of equality of Japanese subjects while, in this country and native citizens and the rule established by it cannot be rendered nugatory in any part of the United States by municipal ordinance or State law. The purpose of the ordinance was to regulate and not to prohibit the business of pawnbrokers but it made it impossible for aliens to carry on the business. There is no question that a pawnbroker is engaged in a business; he loans money upon collateral and in case the pledge is not redeemed he sells the goods to get back the money that he has loaned on the pledge. It is different frctai that of a chauffeur.
The opinion written at Special Term cites Gizzarelli v. Presbrey (44 R. I. 333; 117 A. 359). In that case it was said: “ Authority to use the public highways as a common carrier of passengers for hire is not a right belonging to the individual but is in the nature of a privilege.” It held that the ordinance was an enactment made in the exercise of police power.
In Commonwealth v. Hana (195 Mass. 262; 81 N. E. 149) the court upheld a statute regulating the occupation of hawker and peddler, and hmiting the issuance of licenses to citizens of the United States.
The order appealed from should be affirmed, with costs to the petitioner.