L. 1923, ch. 599.

Lime; standard barrels.

§§ 392-397.

Note.-Section 390 is incorporated in Farms and Markets Law (L. 1922, ch. 48), as 211 thereof.

§ 392. Repacking fruit and farm produce.-(Repealed by L. 1922, ch. 48, in effect April 1, 1922.)

Note.-Section 392 is incorporated in Farms and Markets Law (L. 1922, ch. 48), as § 213 thereof.

§ 393. Lime; standard barrels.-There is hereby established a large and a small barrel of lime, the large barrel to consist of two hundred and eighty pounds and the small barrel to consist of one hundred and eighty pounds, net weight. It shall be unlawful for any person to sell or offer for sale lime, unless there shall be stencilled or otherwise clearly marked on one or both heads of the small barrel the figures "180 lbs. net" and of the large barrel the figures 280 lbs. net," and on either barrel in addition the name of the manufacturer of the lime and where manufactured. When lime is sold in containers of less capacity than the standard small barrel, it shall be sold in fractional parts of said standard small barrel, and the net weight of lime contained in such container shall by stencil or otherwise be clearly marked thereon, together with the name of the manufacturer thereof, and name of the brand, if any, under which it is sold. It shall be unlawful to pack, sell, or offer for sale any barrels or other containers of lime which are not marked as provided in this act, or to sell, charge for, or purport to deliver as a large or small barrel or a fractional part of said small barrel of lime, any less weight of lime than is established by the provisions of this section. Any person violating any of the provisions of this section shall be guilty of a misdemeanor. (Added by L. 1923, ch. 599, in effect May 22, 1923.)

§' 393. Marketing ginseng.-(Repealed by L. 1922, ch. 48, in effect April 1, 1922.)

Note.-Section 393 is incorporated in Farms and Markets Law (L. 1922, ch. 48), as § 221 thereof.

§ 394. Marking thread.-(Amended by L. 1919, ch. 475 and repealed by L. 1922, ch. 48, in effect April 1, 1922.)

Note.-Section 394 is incorporated in Farms and Markets Law (L. 1922, ch. 48), as § 229 thereof.

§ 395. Marking oyster kegs and cans.-(Repealed by L. 1922, ch. 48, in effect April 1, 1922.)

Note.-Section 395 is incorporated in Farms and Markets Law (L. 1922, ch. 48), as § 212 thereof.

§ 397. Sale of agricultural products on commission.-(Repealed by L, 1922, ch. 48, in effect April 1, 1922.)

§§ 3-20.

Powers of cities.

GENERAL CITY LAW.

(L. 1909, ch. 26.)

L. 1921, ch. 326.

§ 3.

City officers not to be interested in contracts.

City may not hire automobile for public offices of city.-Sebring v. Starner (1922), 119 Misc. 651, 197 N. Y. Supp. 201.

§ 5. Certain parades and processions forbidden; penalty.

Section cited.-City of Buffalo v. Till (1920), 192 App. Div. 99, 182 N. Y. Supp. 418.

§ 6. Swearing witnesses.

Jurisdiction of Common Council or its committee.-Matter of City of Albany (1920), 113 Misc. 370, 184 N. Y. Supp. 518.

§ 12. Money for Memorial day in cities of the third class.-The common council of any city of the third class is hereby authorized to appropriate and set aside each year a sum not exceeding six hundred dollars for the purpose of providing for the due and proper observance of Memorial day in such city. (Amended by L. 1909, ch. 288 and L. 1921, ch. 326, in effect April 23, 1921.)

19. General grant of powers.

In general. Although this section is labeled as a general grant of powers and section 20 as a grant of specific powers, such designation is not conclusive. Safee v. City of Buffalo (1923), 204 App. Div. 561, 198 N. Y. Supp. 646.

The city of New York has no power to operate bus or stage lines on its streets under this section, granting to cities the general power to "regulate, manage and control its property and local affairs," for the streets are not the "property" of the city in the sense in which that word is used in the act and the power to control "local affairs" does not add new powers to the corporation. Brooklyn City R. R. Co. v. Whalen (1920), 191 App. Div. 737, 182 N. Y. Supp. 283, affd. 229 N. Y. 570, 128 N. E. 215.

Section cited. City of Buffalo v. Till (1920), 192 App. Div. 99, 182 N. Y. Supp.

418.

§ 20. Grant of specific powers.-7. To lay out, establish, construct, maintain, operate, alter and discontinue streets, sewers and drainage systems, water supply systems, and lighting systems, for lighting streets, public buildings and public places, and to lay out, establish, con Struct, maintain and operate markets, parks, playgrounds and public places, and upon the discontinuance thereof to sell and convey the same, and the city counsel or other body constituting the local authorities of any city having a population of less than one million, notwithstanding the provisions of any special or local act, may acquire on its behalf by purchase or by condemnation any water supply system owned and operated by a water works corporation within the limits of such city, and may pay the purchase

price or award therefor wholly or partly by the issuance of the bonds of said city or the assumption of outstanding bonds of such waterworks corporation. (Subd. 7 amended by L. 1923, ch. 291, in effect April 30, 1923.)

No authority for the operation of a bus or stage line by the city of New York is to be found in the grant of specific powers contained in this section. The operation of a stage or bus line by the city over routes paralleling street railway lines is not authorized on the ground that the inadequacy of the service of the street railways has created an emergency, for a permanent condition of inadequacy of service is not an emergency. While an emergency may justify the omission of prescribed conditions to the exercise of municipal power, the grant of power to the city is not changed by an emergency, nor can it authorize acts entirely outside the chartered powers. The board of estimate and apportionment had no authority to authorize the defendant to establish and operate a stage or bus line on the streets of New York city paralleling the plaintiff's tracks, except under a franchise granted after the determination of its necessity and convenience in the manner prescribed by law. Brooklyn City R. R. Co. v. Whalen (1920), 191 App. Div. 737, 182 N. Y. Supp. 283 affd. 229 N. Y. 570, 128 N. E. 215.

Ordinance applicable to certain street invalid which is not made "in accord with a well considered plan" for zoning city; ordinance invalid which permits erection of prohibited buildings on consent of property owners.-A zoning ordinance is invalid, and not within the power delegated by subdivision 25 of section 20 of the General City Law, which applies only to a small part of a single street in a city and is not adopted "in accord with a well considered plan" for zoning the city. Furthermore, a zoning ordinance is invalid which permits the construction of the prohibited buildings with the consent of the property owners fronting on the street within a specified distance of the proposed construction. The general welfare of the municipality as a whole must be the guiding factor. City of Utica v. Hanna (1922), 202 App. Div. 610, 195 N. Y. Supp. 225.

Ordinance of city of Buffalo regulating sale of soft drinks and enacted pursuant to general authority may be opposed as unreasonable; ordinance is constitutional and valid exercise of police power.-An ordinance of the city of Buffalo, enacted under the authority granted to the city in section 13 of its charter and in section 20 of the General City Law, and purporting to regulate the sale of certain soft drinks, was enacted in pursuance of general authority and, therefore, may be opposed as unreasonable and evidence may be introduced on the question. Such an ordinance, which requires that one conducting a place for the sale of soft drinks shall secure a license from the mayor, prohibits business during certain hours, provides for inspection and the taking of samples of beverages kept for sale, and contains procedural provisions for revocation of licenses and provides a fine or penalty for violations, is constitutional and a valid exercise of the police power. That there was a real evil reasonably to be anticipated and to be guarded against in the sale of soft drinks is clear, for it is common knowledge supported by the evidence in this case, that since the enactment of the prohibition laws there has been and is a widespread disregard thereof and that there has been a large increase in the number of places dealing in soft drinks, including many former saloons, and many of these places are mere covers for illegal traffic and have become centers for crime and meeting places for criminals, and as an incident to these things, poisonous and otherwise harmful concoctions are being there made and illegally disposed of. The remedy proposed by the ordinance bears a reasonable relation to the evil sought to be guarded against and the ordinance is not rendered invalid by the provisions dealing with prohibited hours, with inspection and with the taking of samples,

§ 20-a.

Purchasing department.

L. 1921, ch. 230.

samples are not Safee v. City of

and such provisions relating to inspection and the taking of violative of the search and seizure clause of the Bill of Rights. Buffalo (1923), 204 App. Div. 561, 198 N. Y. Supp. 646. Ordinance prohibiting auction sales after sundown is unconstitutional and chief of police will be enjoined from enforcing it.-Robinson v. Wood (1922), 119 Misc. 299, 196 N. Y. Supp. 209.

Ordinance against assemblage in street without consent of mayor. City of Buffalo v. Till (1920), 192 App. Div. 99, 182 N. Y. Supp. 418.

The Optional City Government Law (Laws of 1914, chap. 444) by which seven plans of city government are proposed in no way repealed, modified or affected the broad grant of powers theretofore given to the citizens of the city by the General City Law among which was the power to regulate the manner of transacting the city business and affairs but on the other hand clarified and enlarged it giving them ample authority to adopt either an aldermanic or manager form of government, as they might desire and elect. The city of Watertown having on January 1, 1920, adopted plan C set forth in the Optional City Government Law must under section 25 of article 2 of that statute continue under that plan for a period of at least four years after the commencement of the terms of office of the officials elected thereunder, and no petition for a change of plan can be legally presented prior to July 1, 1923, and the city council was justified in its refusal to act on the petition presented on the ground that it was improper, inoperative and void. People ex rel. Purser v. Cahill (1922), 119 Misc. 471, 196 N. Y. Supp. 368.

§ 20-a. Purchasing department or agency.-Each city, except a city of the first class having a population of one million or more inhabitants, is hereby authorized and empowered to create and establish by ordinance of the common council or similar legislative body and to maintain a purchasing department or agency. Such department or agency shall consist of a purchasing agent, who shall be its head, and such assistants and with such salaries as the body which is by charter authorized to designate the number of employees and fix salaries, may from time to time authorize. The purchasing agent shall be appointed and removable at pleasure by the same official or body who or which by charter is now authorized to appoint the heads of city departments. The purchasing agent shall appoint and remove at pleasure such assistants and employees as may be authorized.

The purchasing department or agency shall purchase and be responsible. for the proper receipt of all materials and supplies, including those on which bids are obtained after publication of notice pursuant to law unless the legislative body shall by ordinance otherwise provide, as well as those purchased without the requirement of competitive bidding, for such departments, boards, bureaus and offices of the city as shall be designated in the ordinance creating the department. Boards of contract and supply in second class cities and boards with similar powers in other cities and the common council or similar legislative body in cities which have no boards of contract and supply or bodies with similar powers, shall make rules and regulations not inconsistent with general laws or their charter, which shall prescribe the procedure, conditions, methods and practices that shall prevail in regard to all purchases of materials and supplies by the purchasing

L. 1921, ch. 502.

Prohibition of certain expenditures.

§§ 21, 22, 25.

department or agency, and all departments, boards, bureaus and offices of the city for which supplies are purchased shall obey and comply with such rules and regulations. The purchasing department or agency may sell, under the direction of the board of contract and supply or any body having similar powers or the common council or similar legislative body in those cities which have no boards of contract and supply or body with similar powers, all property, real and personal, of the city not needed for public use and authorized to be sold. The purchasing department or agency shall have charge of such storerooms and warehouses of the city as the legislative body by ordinance may prescribe.

The purchasing agent and such other subordinates of the department as the common council or other legislative body may designate, shall within ten days after appointment execute bonds to be approved by the mayor, payable to such city in amounts to be prescribed by ordinance of the common council or similar legislative body contingent on the faithful performance of the duties of their offices and for a due accounting of all property that may come under their care, custody and control. (Added by L. 1921, ch. 230, in effect April 20, 1921.)

§ 21. Public or municipal purpose and general welfare defined.

General welfare.-The Home Rule Act does not empower the city to operate a bus or stage line in order to promote the general welfare of the citizens, for the act must be interpreted consistently with the fundamental principle that the powers of municipal corporations are such only as are granted expressly or by necessary implication in the laws that constitute the charter, and from the use of the words "general welfare" in section 21 of the act no implication can be drawn of a grant of power to cities in the State to assume those activities which according to our conception of government, founded on the principle of individualism, is left to private enterprise. Brooklyn City R. R. Co. v. Whalen (1920), 191 App. Div. 737, 182 N. Y. Supp. 283, affd. 229 N. Y. 570, 128 N. E. 215.

§ 22. This grant in addition to existing powers.

Ordinance against assemblage in streets without consent of mayor. City of Buffalo v. Till (1920), 192 App. Div. 99, 182 N. Y. Supp. 418.

ARTICLE 2-B.

(Article added by L. 1921, ch. 502, in effect May 3, 1921.)

PROHIBITION OF CERTAIN EXPENDITURES OF CITIES.

§ 25. Increasing compensation during fiscal year prohibited. The board of estimate and apportionment of any city or the body exercising similar functions in any city, excepting a city of the first class having a population of more than five hundred thousand and less than one million, is hereby prohibited from increasing the compensation of any office or position, except compensation on per diem basis, paid out of the treasury of such city, during any fiscal year, after the same shall have been