People v. . RosenbergPeople v. . Rosenberg
—Thе defendant was convicted of a misdemeanor in tihe court of general sessions of the county of Kings upon an’indictment charging him with a violation of chapter 646 of tire Laws-of 1892. -As this-appeal from an affirmance of the judgment of conviction by the general term-raises important questions with respect both to the validity and true construction of the statute, it mаy'be well to give it here in full:
“AN ACT to prevent fat rendering, bone boiling or the manufacture of fertilizers within the corporate limits of any incorporated city of this state, or within a- distance of three miles from the corporate limits thereof.
“The People of the State of New York, represented in Senate and Assembly, do enact as follows:
“Section 1. It shall not be lawful for any person or persons rbo engage in or carry on the business of fat rendering, bone boiling or the manufacture of fertilizers, or any business as a public nuisance within the corporate limits of any incorporated city of this state, or within a distance of three miles from the corporate limits of any incorporated city, provided, howevеr, that nothing ¡herein contained shall prevent the rendering of-fresh killed ¡cattle or swine.
“Section 2. All departments of health, or the commissioner or commisioners thereof, in any incorporated city of this state ¡shall have power to enforce the.provisions of this act.
*435 “Section 3. Any person or persons offending against the provisions of this act shall, upon conviction thereof, he guilty of a misdemeanor. This act shall not apply to the counties of Fulton, Wayne, Tompkins, Chautauqua, Orange, Dutchess, Erie, ■Monroe, Oneida, Onondаga, New York, Schoharie, Ulster, Greene, Cayuga, Cattaraugus, Niagara, Saratoga, Schenectady, ■Hamilton, Montgomery and Orleans.
“Section 4. This act shall take effect immediately;”
The charge in the indictment is that the defendant, on a certain day named, in a certain locality and building described, within the corporate limits of the city of Brooklyn, did “engage in carrying on the business and occupation of fat rеndering, that is to say, of rendering fat from animal matter, said animal matter not being then and there freshly slain cattle and swine, against the form of the .statute in such case made and providеd, and against the peace of the People of the state of New York and their dignity.”
It is claimed that in 1885 the defendant erected a factory on his own land, and for seven years carried on the business of “fat rendering” under the permission in writing and the supervision and inspection of the health department of the city of Brooklyn, and the defendant offered to produce these facts at the trial, as well as the manner in which the business was conducted, and whether any noxious odors arise from the business, and the character of the locаlity where the business was carried on, whether sparsely or densely populated. The testimony was excluded by the court upon the objection of the district attorney, and the defendant’s counsel excepted. The court, in substance, instructed the jury that the act was constitutional, and that if they were satisfied that the defendant carried on the business as charged in the indictment he was guilty of the offense. The defendant’s counsel excepted to these instructions. The defendant, upon conviction, was fined $250. It is apparent that the judgment proceeded upon the theory that the defendant’s business was absolutely prohibited by the statute •and made a crime. This is the theory upon which the indictment was framed, and that is the construction which the learned judge who presided a.t the trial evidently put upon the enactment, and the same is true of the decision at general term.
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The discussion in this court upon the question arising upon the appeal has taken a wide range. The learned counsel for the defendant has argued with much force that the act is void because in conflict with at least two distinct limitations upon the power of the legislature created by the constitution of the state. He insists that it violates section 6, of article 1, which provides that no persоn shall be deprived of all, liberty or property without due process of law, and also that as it deprives the citizens of Brooklyn, if the construction adopted below be correct, of rights and privileges secured to the citizens of other cities, situated in counties exempt from its provisions, it is violative of section 1, of article 1, which provides that “no mеmber of this State shall be disfranchised or deprived of any of the rights or privileges secured to any citizen thereof, unless by the law of the land or the judgment of Ms peers.” A legislative ediсt that would forbid the carrying on by the citizen of a particular business is always open to serious objections, and unless it can be brought within the somewhat vague and undefined domain of the police power it is difficult to sustain such legislation under our system of government. If the disposition of this appeal required us to examine into the power of the legislature to pass enactments of this character it might be difficult to answer some of the positions taken by the learned counsel for the defendant. If the statute is to be construed in the same way thаt it was by the court below, then constitutional questions of a grave .character are undoubtedly involved. But. we have reached the conclusion that it is entirely possible and proper to give to the act a construction which will obviate the necessity of passing upon the question of legislative power. It is only when a case is presented which shows сlearly that a statute, when fairly and reasonably construed, is brought in conflict with some provision of the constitution, that this court is justified in pronouncing the law invalid. If the act and the constitutiоn can be construed so as to enable both to stand, and each can be given a proper and legitimate office to perform, it is -the duty of the court to adopt such construction. People ex rel. Killeen v. Angle,
. The statute is penal in its character, and it should, therefore,
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receive a strict rather than a liberal construction, Maxwell оn Int. of Statutes, chap. 10; Verona Central Cheese Co. v. Murtaugh,
It may be that upon this construction the statute was wholly unnecessary, and that the defendant was liable to indictment and punishment for carrying on the business of fat rendering in Brooklyn, as a public nuisance, without it. We will not now stop to consider that question. It is sufficient to say that an intention Should' not be attributed to the law-maMng power to arbitrarily interdict the conduct of any business theretofore *438 recognized as lawful, irrespective of its effect upon health, morals or public order, unless it has in the statute itself used languаge of such explicit import as to preclude any other construction. It has not used such language in this case, and, therefore, the defendant was not guilty of the offense unless hе 'carried on the business in such a way as to be a public nuisance.
The judgment is erroneous for two reasons, first, there is no •allegation in the indictment that the defendant was carrying on thе business of fat rendering as a public nuisance, and, secondly, even if there was, the defendant’s counsel offered at the trial to give proof which was material and competent upon that question, and which was improperly excluded.
The judgment should, therefore, be reversed, and the defendant discharged.
All concur.