Stokes v. The Corporation of New York

By the Court, Savage, Ch. J. It is objected that the declaration is insufficient, because it does not set forth the by-law itself, and the authority by which it was passed. To this it is sufficient to answer, that no objection .was made to the declaration before the justice; and as it refers to the by-law as having been passed by the corporation, it is sufficient in substance. The ordinance was produced in evidence without objection, and the law giving the power to appoint weighmasters is a public act. 2 R. L. 437, § 238, and 460, § 315. The appointment of weighers and the law requiring coal to be weighed by them is not a restraint upon trade, but a regulation of it. Neither can it be said to be unreasonable. If, as is suggested, the number of weighers was insufficient, the corporation, if applied to, would remove the difficulty by the appointment of an adequate number. If the corporation had no power to compel the employment of weigh-masters, the appointment of them would be perfectly nugatory. This power is necessarily implied in the power to appoint. The fees of the weighers are said to be a tax, which cannot be imposed, except by law. Fees are not a tax within the meaning of the act referred to, and are particularly authorized by the statute already quoted. Whether the penalty is too high, is certainly not a question for this court. When the plaintiffs below attempt to recover for a great number of penalties in one count, there the case of The Mayor, &c. v. Oldreman, 12 Johns. R. 122, will be an authority in point. It is unnecessary here to enter into a discussion of the question of the constitutionality of the ordinance, and the law authorizing it. The present case is one clearly within the power of corporate regulation. Judgment affirmed ; single costs.