Mayor of Rochester v. Rood

By the Court,

The evidence in the case doubtless brings it within the offence as declared by the ordinance; and the only question is, whether such ordinance is warranted to the extent enacted by the common council, under the powers confered by.the charter.

The only clause that can be relied on for this purpose is found in the 2d subdivision of § 8 (Sess. Laws of 1834, p. 297), and is as follow? : “ to regulate the vending of meats, *147vegetables and fruits, pickled and other fish, and to prescribe the time and place of selling the same, and weighing and selling hay; and to regulate the measuring, weighing and sale of coal, cordwood, and other fuel, lumber, shingles, salt, lime, fish, iron, or any other commodity exposed or intended to be exposed to sale in the said city,” &c.

There is no pretence for saying that the power may be derived from the first clause of the subdivision, as that is confined to the sale of meats, &c, &c., used in the strict and popular acceptation of the term. Nor does the subsequent clause apply, as that, obviously, relates to the mode and manner of vending the articles there enumerated, and other commodities usually sold by weight and measure.

The powers thus conferred upon the common council are, in their nature, penal, in derogation of the common right of the citizen, and, upon familiar principles, must Jbe strictly construed. But, even without the aid of this rule of construction, I see no authority for the ordinance to the extent sought to be enforced.

The common pleas were, therefore, right in reversing the judgment of the justice.

Judgment affirmed.