110 N.Y.S. 74 | N.Y. App. Div. | 1908
The statute
It is true, of course, that this question is not presented here, for it is not claimed that the defendant was a partner of a licensed undertaker) but it serves to show the intent back of the enactment, and to indicate that its purpose was not the protection of the public, but for the aggrandizement of the undertakers who were in business at tbe time of the enactment, and who were, undoubtedly, instrumental in securing tbe legislation. Certainly no one outside of the undertakers’ atmosphere has ever discovered any good reason why undertakers should be compelled to take out a license, independent of an embalmer’s license, and, to quote the language of the court in Lochner v. New York (198 U. S. 45, 64), it is “impossible for us to shut our eyes to the fact that many of the laws of this character, while passed under what is claimed to be the police power for the purpose of protecting the public health or welfare, are, in reality, passed from other motives. We are justified in saying so when, from the character of the law and the subject upon which it legislates, it is apparent that the public health or welfare bears but the most
In Schnaier v. Navarre Hotel & Importation Co. (182 N. Y. 83, 88) the court summarizes the gist of a large number of decisions bearing upon the police power, the most salient being that the “ common business and callings of life, the ordinary trades and pursuits which are innocent in themselves, and have been followed in all communities from time immemorial, must, therefore, be free in this country to all alike upon the same terms,” and in citing Lochner v. New York (supra) the court say: “ The principle that the individual right to make contracts in relation to business is a part of that liberty protected by the Constitution was asserted and maintained, and a statute of this State which made it a penal offense for a master to permit his servant to work more than ten hours in the day has been held to be in conflict with that right, and was, therefore, unconstitutional and void. ■ That case amply vindicates the right of the individual to freedom in the conduct of any legitimate business and his right to make contracts concerning the same.”
In this case the right of the defendant to make a contract for the
The judgment of conviction should be reversed.
Jenks, Hooker, Gaynor and Rich, JJ., concurred.
Judgment of the Court of Special Sessions reversed.
See Laws of 1898, chap. 555, § 6a, added by Laws of 1904, chap. 498, and amd. by Laws of 1905, chap. 572.— [Ref.