Lead Opinion
We have before us once again the problem presented by what are commonly called the Sunday Blue Laws. And while the notion of a quiet Sunday is unquestion
There is no dispute as to the facts. Louis Fratto, an employee in a local pharmacy, was charged with Sabbath breaking by virtue of selling a ceramic bank, merchandise not specifically exempted from the general closing mandate of the Blue Laws (General Business Law, § 9).
On appeal to our court, both sides raise the classic arguments. The appellant contends that the crazyquilt exceptions to the general closing directive render section 9 of the statute unconstitutional due to the absence of a rational basis to accomplish the avowed purpose of the law. The State responds by raising the presumption of constitutionality and though conceding the imperfections of section 9, argues that the Legislature should be afforded a wide degree of latitude in delineating those activities which are permissible.
Before proceeding to a discussion of the merits it should be noted that the present Sabbath Laws (General Business Law, art 2) are the product of centuries of evolutionary mutation. Thus, a cursory review of their history would be appropriate in order to set our holding, as well as the interrelationship among the various provisions, in perspective.
The genesis of our present statute appears to have been the act of October 22, 1695 "an Act against profanation of the Lord’s Day, called Sunday” which contains many provisions similar to those appearing in previous versions of the statute presently under consideration (Laws of the Colony of New York, 1695, ch 52). This act remained in effect during the Revolutionary War and was retained by the Constitution of 1777. It remained in force until 1788 when the first State Sabbath Law was enacted (Laws of New York, 1785-1788, ch 42). This law, entitled "An Act for suppressing immorality”, cast the acts prohibited into four general categories: (1) travel, (2) labor or work, (3) sports and amusements, (4) business or occupation. Specifically the statute provided that on the first day of the week commonly called Sunday "there shall be no travelling, servile labouring, or working, (works of necessity and charity excepted) shooting * * * hunting or frequenting of tipling houses * * * and that no person shall cry, shew forth or expose to sale, any wares, merchandize, fruit, herbs, goods or chattels * * * except small meat and milk, and fish, before nine of the o’clock in the morning”. This basic scheme which
The first revision occurred in 1813 and, while it effected no change, is significant for the notes compiled in the margin. These notes list the source material for the various provisions and clearly indicate that the prohibition against laboring has roots separate and distinct from the prohibition against public selling (L 1813, ch 24, margin notes; compare General Business Law, § 8, with § 9). Another indication of the dichotomy between these two categories is the applicability of an exception for "necessity and charity” with respect to the ban on Sunday labor and the absence of a similar exception for the public traffic provision (see, also, 37 Cycl, Sunday, III, C, 2). The historical distinction between these two concepts is important when ascribing meanings to similar provisions in successor statutes.
Although there were subsequent revisions effecting minor changes throughout the nineteenth century, New York’s original Sabbath Law remained virtually unaltered until 1881. At that time the statute received a completely new format (which it still retains) and the previous sections which were embodied in the Penal Code
It is also interesting to note that with the 1881 revision the number of exceptions to the mandate against public selling more than doubled. Throughout the previous century the only commodities allowed to be sold were meats, milk and fish provided they were sold before 9:00 a.m. However, in addition to these foods the revised statute permitted, at any time of the day, the sale of food to be eaten on the premises where sold, drugs, medicines and surgical appliances (Penal Code of 1881, § 267). This marked the beginning of the proliferation of exceptions to the public selling prohibition which has since overwhelmed the statute.
After the turn of the century the Sabbath Laws were recodifed in a new penal law (L 1909, Penal Law, art 192, § 2140 et seq.). Those sections coming under the general heading of laboring or working were essentially unchanged. (Compare Penal Code of 1881, §§ 263, 266, with Penal Law of 1909, §§ 2143, 2146, respectively.) The provision dealing with public sports was relaxed considerably to reflect the change in the society. (Compare Penal Code of 1881, § 265, with Penal Law of 1909, § 2145.) Notably the section pertaining to public traffic was subjected to the further multiplication of exceptions. (Compare Penal Code of 1881, § 267, with Penal Law of 1909, § 2147.)
Aside from the public sports section which has been broadened substantially but is no longer relevant to our discussion, the remaining provisions present an interesting contrast. While the prohibitions dealing with laboring (presently General Business Law, §§ 5, 8) have experienced minimal change in the last century, the public traffic section (presently General Business Law, § 9) has been riddled with alterations.
Our analysis of section 9 (General Business Law, § 9) leads to the inescapable conclusion that it no longer possesses the requisite rationality in light of its avowed purpose. When entering a particular field, the Legislature invariably incorporates its value judgments into the definitions and categories of the statutory scheme. The performance of this task necessarily involves the drawing of arbitrary lines. Therefore when the Legislature decides to regulate the production of one commodity and not another it has made a choice which is arbitrary. That alone will not render the legislation defective since there may be arbitrary distinctions as part of a rational pattern. A general illustration of this concept is that in many countries vehicles must travel on the right side of the road. Although arbitrary this is nevertheless compelling and therefore rational in that one side or the other be chosen. Thus, while arbitrariness in the sense of selection within a group of choices is inevitable, a modicum of rationality is required for a statute to be valid (McGowan v Maryland,
Of course, one must be wary that assertions of irrationality are not simply reflections in the eye of the beholder. To provide a day of rest it is necessary in modern society both to permit and to prohibit. In the selection of what should be permitted, accommodation is made to serve modern relaxed ideas of what is desirable or even necessary to a uniform day of rest. No two persons or groups by reason of diverse tastes (or needs) are likely to agree on the commercial activity which
The challenged section (General Business Law, § 9) contains a polyglot of exceptions to the general closing mandate which is essentially devoid of rhyme or reason. And although we are tempted to illustrate its absurdities by portraying the bountiful colors of this crazyquilt, they are well documented and reiteration would serve no useful purpose (see, e.g., People v Acme Markets,
In our view the only solution is to declare unconstitutional section 9 of the General Business Law as it is presently drafted. To declare just the offending exceptions void would be unwise since the general closing mandate would still remain. Equally unwise would be for the court to engage in the legislative function of selecting those exceptions which are rationally related to the statute’s purpose.
The most appropriate course is to invalidate the entire section
Finally, we have also considered the validity of the forfeiture provision of the Blue Laws (General Business Law, § 12) and have determined that it is unconstitutionally vague. Again an historical perspective is instructive. The first Sabbath Laws enacted by New York State provided for a fine of six shillings for each offense and a forfeiture of any goods to be sold in satisfaction of the penalty. The proceeds were to be turned over to the "overseers of the poor” for the use of the poor. In the event that the offender had no goods or the proceeds of a forfeiture sale were shy the offender was to "be set publickly in the stocks” for two hours (Laws of New York, 1785-1788, ch 42). Subsequent enactments modified the sanctions by providing for an outright forfeiture of goods exposed for sale and by ameliorating the alternate penalty by imposing a stint in "the common gaol” for no more than 12 hours (L
Accordingly, the order appealed from should be reversed and sections 9 and 12 of the General Business Law declared unconstitutional and void.
Appendix
§ 9. Public traffic on Sunday.
All manner of public selling or offering for sale of any property upon Sunday is prohibited, except as follows: 1. Articles of food may be sold, served, supplied and delivered at any time before ten o’clock in the morning:
2. Meals may be sold to be eaten on the premises where sold at any time of the day;
3. Caterers may serve meals to their patrons at any time of the day;
4. Prepared tobacco, bread, milk, eggs, ice, soda-water, fruit, flowers, confectinery, souvenirs, items of art and antiques, newspapers, magazines, gasoline, oil, tires, cemetery monuments, drugs, medicine and surgical instruments may be sold and delivered at any time of the day.
5. Grocers, delicatessen dealers and bakeries may sell, supply, serve and deliver cooked and prepared foods, between the hours of four o’clock in the afternoon and half-past seven o’clock in the evening, in addition to the time provided for in subdivision one hereof, and, elsewhere than in cities and villages having a population of forty thousand or more, delicatessen dealers, bakeries and farmers’ markets or roadside stands selling fresh vegetables and other farm produce, and fishing tackle and bait stores may sell, supply, serve and deliver merchandise usually sold by them, at any time of the day.
7. Sale at public auction of thoroughbred, standardbred and quarter horse racehorses.
The provisions of this section, however, shall not be construed to allow or permit the public sale or exposing for sale or delivery of uncooked flesh foods or meats, fresh or salt, at any hour of the time of the day. Delicatessen dealers shall not be considered as caterers within subdivision three hereof.
§ 12. Forfeiture of commodities exposed for sale on Sunday.
In addition to the penalty imposed by section four, all property and commodities exposed for sale on the first day of the week in violation of the provisions of this article shall be forfeited. Upon conviction of the offender by a justice of the peace of a county, or by any police justice or magistrate, such officer shall issue a warrant for the seizure, of the forfeited articles, which, when seized, shall be sold on one day’s notice, and the proceeds paid to the overseers of the poor, for the use of the poor of the town or city.
Notes
. For the text of sections 9 and 12 of the General Business Law, see Appendix attached.
. In view of the apparently random and hence nondiscriminatory manner of enforcement here, the appellant does not assert unconstitutional discriminatory enforcement as a basis for reversal. (But cf. People v Acme Markets,
. The statute read in pertinent part as follows:
"§ 263. All manner of servile labor, on the first day of the week, is prohibited, excepting in works of necessity or charity.
* * *
"§ 265. All shooting, hunting, fishing, playing, horse racing, gaming or other public sports, exercises, pastimes or shows, upon the first day of the week, and all noise disturbing the peace of the day, are prohibited.
"§ 266. All trades, manufactures and mechanical employments upon the first day of the week are prohibited.
"§ 267. All manner of public selling, or offering or exposing for sale publicly, of any commodities upon the first day of the week is prohibited, except that meats, milk and fish may be sold at any time before nine o’clock in the morning, and except that food may be sold to be eaten upon the premises where sold, and drugs, medicines and surgical applicances [sic]may be sold, at any time of the day.”
In 1883 the word servile was deleted from section 263 (L 1883, ch 358, § 1).
. No doubt the spasmodic promulgation of exceptions enacted over nearly a century represents diverse and occasionally contradictory legislative response to societal input. Nevertheless it is beyond the province of the judiciary to hypothesize about the motives of legislators and whether or not portions of a statute are attributable to the efforts of so-called special interests (Soon Hing v Crowley, 113 US
. We are not unmindful that a consequence of eliminating the general closing mandate will be the opening of numerous business establishments on Sundays which will require the performance of various services that could be classified as labor. Our decision today in no way infringes on the prohibition against labor (General Business Law, § 5); however, we would note that this section contains an exception for labor which is necessary for the "good order, health or comfort of the community” (§ 5). Moreover, we believe that our holding need not work a hardship on those who are required to work on Sundays in light of the protections afforded by the Labor Law (e.g., Labor Law, § 161) and the potential for either statutory or contractual adjustments in the rate of compensation.
Concurrence Opinion
(concurring). Defendant, an employee of the Poughkeepsie Plaza Pharmacy, was charged with selling a ceramic coin bank for $1.03 on Sunday in violation of the provisions of section 9 of the General Business Law. He challenges his conviction on the grounds that this "Sabbath Law” (General Business Law, § 2) is violative of equal protection principles contained in both the State and Federal Constitutions (NY Const, art I, § 11; US Const, 14th Arndt) and, as presently written, is void for vagueness.
Less than a year ago, we were asked to decide this same equal protection question. While three of us were prepared to reach the constitutional question at that time, two other members of the court believed it sufficient, in the context of that case, to reverse the conviction on the ground that it had resulted from discriminatory enforcement (People v Acme Markets,
I begin by noting, as pointed out in the Acme Markets case, that "[t]he entire court is in agreement that the statute in question does not transgress the prohibition against establishment of religion” (
Nevertheless, it is helpful to this analysis to recognize that we are dealing with a statute which, while it has presently the secular purpose to regulate the health and welfare of citizens under the police power of the State, is indisputably derived from older enactments designed to further the religious nature of the Sabbath (see People v Acme Markets, supra, at p 332; People v L. A. Witherill, Inc.,
As the United States Supreme Court explained in McGowan v Maryland (supra), the substitution of a permissible concern for the general welfare for the earlier concern that the religious nature of the day be fully observed came about gradually as a result of a process of modification and accretion (
While that history demonstrates that no impermissible taint of establishment of religion clings to the statute, it also proves that the statute is not the product of a single, conceptually cohesive legislative plan, but, instead, the consequence of
Of course, unless classifications created by statute impinge upon some fundamental right or rest upon suspect criteria (Alevy v Downstate Med. Center of State of N. Y.,
But rationality in this context is not easy to define. As the United States Supreme Court noted in McGowan, "[t]he problem of legislative classification is a perennial one, admitting of no doctrinaire definition” (
The test is thus not whether a court, by an unfettered exercise of its imagination, can dream up circumstances which might justify the classifications, but, rather, whether the
As the court also pointed out in McGowan, the fact that a statutory classification system has been developed in a piecemeal fashion is not itself fatal to its rationality (at p 426). Nevertheless, the development of classifications by gradual accretion and not by comprehensive planning, particularly when accompanied by shifts in basic legislative purpose, opens up possibilities for the introduction of irrational distinctions in ways less likely to occur when a statute is designed in toto at one time. Courts may find in such circumstances confirmation of their judgments that things have gone beyond the bounds of reasonableness.
So it is with section 9 of the General Business Law. The statute, which began as a general prohibition upon sales of goods of all kinds (see former Penal Code, § 267), presently makes it possible, for instance, to buy beer, but not cooked meals, for home consumption (§ 9, subds 2, 6); to eat meals in a restaurant but not to drink therein; to purchase a thoroughbred horse at public auction but not to buy a less distinguished animal (§ 9, subd 7); to buy books at a newsstand but not in a bookstore (People v Corpora,
It is impossible to conceive of any reasonable state of facts which could explain how the avowed legislative purpose to provide a day of rest and recreation for all citizens (General Business Law, § 2; People v Dunford,
Moreover, although this particular defendant’s conviction was based on section 9 of the Sabbath Laws, which is concerned with the sale of goods, I believe that our attention ought not to be confined to that section of the law alone, for "in order properly to consider * * * the broad constitutional contentions, we must examine the whole body of * * * [New York’s] Sunday laws” (
Not all of the sections of the statutes are so intertwined. Some of them, such as those which regulate sports events, parades, service of process or entertainment presentations,
The interrelationship does not stem from the history of the three sections. Indeed, although, as the majority points out, the seeds of all three sections can be found in a single early enactment (Laws of New York, 1785-1788, ch 42) their subsequent separation and development has proceeded by modification and evolution and without any noticeable effort on the part of the Legislature to co-ordinate them (Pfeifer, Church, State, and Freedom, pp 227-237). Their present interrelationship derives instead from the fact that the society which they attempt to regulate has changed so drastically since each section was first conceived that the traditional lines of demarcation that at one time may have separated "labor”, "trades”, and "sales” have, for all practical purposes, vanished beyond
Case law developed under sections 5 and 8 thus exhibits the same sort of schizophrenia that the statutory exceptions listed in section 9 display. Indeed, since the former two sections contain no express list of exceptions, but only permission to do what is "necessary”, the list of exceptions has simply developed by way of case law instead of by legislative fiat. However justified each exception may have appeared to be at the time each was made, viewed collectively from our present perspective, they suffer from the same kind of irrationality which characterizes section 9.
Cases which have tried to wrestle with the status of the modern automatic, coin-operated laundry under the Sabbath Laws tell the story well. Reading them, we learn that the operation of such a laundry is not a prohibited sale under section 9 (People v Gwyer,
In contrast, while attendants required to be present by law in New York City in automatic laundromats after 6:00 p.m. are performing "labor” in violation of section 5, the operation of the laundromat without them would be permitted under that section so long as the proprietor does not do any work on the premises himself (Schacht v City of New York,
Confusions among the definitions of selling, of trade, and of
Manifestly, then, the persistent pattern of inconsistencies infiltrates all three' sections and creates a crazyquilt of irrationalities that cross over from each section to the others as well. Thus, it is not at all clear that section 9, at least insofar as it creates specific exceptions for certain kinds of sales of goods, has not constituted a barrier to prosecutions under sections 5 or 8 for the same sales, certainly to the extent that those activities also involve labor or trade, a blending almost impossible to avoid as "blue collar” and "white collar” distinctions blur into the all-enveloping and amorphous category of service worker. Since courts’ ability to enforce the latter sections has proved to be no more consistent or rational than
If section 9 alone were invalidated, would the sale by the roadside of the fruits of the farm then be "agricultural employment” under section 8? Would the sale of such a confection as the soft ice cream poured into cones as it comes out of the front of a machine be "manufacture” within section 8 when an employee standing in back of it puts the raw ingredients into the other end? Is ice cream "necessary” to our rest and recreation? Are beer, magazines, thoroughbred horses, souvenirs, cemetery monuments, and fishing tackle—now all permitted sales exceptions under section 9—then to be considered "necessary” on Sunday? Perhaps the closest any court in this State has come to a definition of what is "necessary” for the good order of society on Sunday is the statement made over a century ago that necessity must be determined on a case-by-case basis (Landers v Staten Is. R. R. Co., 13 Abb Prac [NS] 338). The ability to make the distinctions among activities required by the word "necessity” does not seem to have improved with the passage of time. The escalating changes in society certainly have not helped.
In sum, the omnipresence of commercial activities which cannot be isolated neatly within the strict confines of any one of sections 5, 8, or 9 is such that, realistically viewed, the three sections do not lend themselves to practical severance from one another. Experience with them demonstrates that the three are so interwoven that, if sections 5 and 8 were left standing alone, they would continue to spawn and proliferate the very kind of problems which are now produced by the three sections together. (See McKinney’s Cons Laws of NY, Book 1, Statutes, § 150, p 328.) Therefore, I would hold not only that section 9 (and of course § 12) is unconstitutional but that sections 5 and 8 should fall with it, for, unless we declare all three invalid, the net result of our decision will be illusory, accomplishing in the main no more than the substitution of section 5 or section 8 for section 9 in summons or appearance tickets which initiate most criminal prosecutions under article 2 of the General Business Law.
Accordingly, on that broader basis, I would reverse the order of the Appellate Term and dismiss the information.
Order reversed and the information dismissed.
. Because I would reverse here on equal protection grounds, I do not reach defendant’s assertion of vagueness save to note that we have, albeit in somewhat equivocal terms, rejected a similar challenge to section 9 based on vagueness in the recent past (People v Weston’s Shoppers City,
. Cases in the many courts in other States, which, having been confronted with statutes containing similar accretions of prohibitions and exceptions, have reached this same conclusion include Denver v Bach (26 Col 530), Allen v Colorado Springs (101 Col 498), Elliot v State (29 Ariz 389), City of Mt. Vernon v Julian (369 Ill 447), Gronlund v Salt Lake City (
. Section 7 of the General Business Law prohibits "All public sports, exercises or shows, except professional golf tournaments * * * and all noise unreasonably disturbing the peace of the day” conducted for "the entertainment of spectators” on Sundays, unless a local government exercises its option to permit such activities after 1:05 p.m. It permits all sports, games or recreational activities engaged in for personal enjoyment so long as these do not "constitute a serious interruption of the repose or religious liberty of the community.”
Section 11 of that law forbids service of process on Sunday except in criminal proceedings or where otherwise authorized by statute. Section 13 provides penalties for malicious service of process on Saturdays on those who observe that day as their Sabbath.
Section 14 forbids "All processions and parades on Sunday in any city” save funeral or religious processions, and forbids all noise or music connected with the latter except that military salutes or military music is permitted at any time of day at the
Section 15 prohibits "All legitimate theatrical performances, concert and recital dances, motion picture exhibitions, or other public exhibitions, exhibits, shows or entertainment” except where local law permits these after 1:05 p.m. It also provides that if such performances were the custom in a locality prior to the passage of section 15, they are permitted to continue unless subsequently prohibited by local law.
. Section 5 of the General Business Law reads: "All labor on Sunday is prohibited, excepting the works of necessity and charity. In works of necessity or charity is included whatever is needful during the day for the good order, health or comfort of the community.”
Section 8 of the General Business Law reads: "All trades, manufacturers [sic], agricultural or mechanical employments upon the first day of the week are prohibited, except that when the same are works of necessity they may be performed on that day in their usual and orderly manner, so as not to interfere with the repose and religious liberty of the community.”
The use of the word "manufacturers” instead of "manufactures” appears to have been inadvertent (McKinney’s Cons Laws of NY, Book 19, General Business Law, § 8, nl).