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In People v Abrams, 40 NY2d 277,284-85 (1976), the Court of Appeals declared § 9 to be unconstitutionally vague because its exceptions were "devoid of rhyme or reason" and the statute lacked "the requisite rationality in light of its avowed purpose."
Summary of this case from Carbon Capital Mgt., LLC v. Am. Express Co.Opinion
Argued March 31, 1976
Decided June 17, 1976
Appeal from the Supreme Court in the Second Judicial Department, ABRAHAM L. BANNER, J.
Marshall L. Brenner and Gary E. Lane for appellant. John R. King, District Attorney (Bridget R. Rahilly and Jennifer L. VanTuyl of counsel), for respondent. Warren S. Radler and Kenneth F. Astarita for Twin Fair Distributors Corp., amicus curiae.
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 unquestionably valid in principle, we believe that two of the sections challenged here are constitutionally defective. We refer specifically to the sections dealing with the prohibition against public sales and the forfeiture provision of the statute (General Business Law, §§ 9, 12). Due to the gallimaufry of exceptions which has obliterated any natural nexus between section 9 and the salutory purpose of the Sabbath Laws and the pervasive ambiguity of section 12 we declare both of these sections unconstitutional.
For the text of sections 9 and 12 of the General Business Law, see Appendix attached.
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). The trial court dismissed the information on the grounds that the forfeiture and enforcement provisions of the statute were unenforceable by reason of vagueness, ambiguity and inconsistency (General Business Law, §§ 4, 12). A divided Appellate Term reversed on the law and reinstated the information. The dissenter found the statute an unconstitutional anachronism the purpose of which has been completely frustrated by the proliferation of arbitrary and haphazard exceptions.
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, 37 N.Y.2d 326 ).
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.
There is little doubt that these laws are clearly religious in origin being derived from the concise directive of the Old Testament that on the seventh day no work shall be done (Exodus, XXXI, 14-15). As a precept of civil government, however, the Sunday Laws are over 16 centuries old having been originated by the Roman Emperor Constantine in 321 AD who ordered all Judges and inhabitants of cities to rest on Sunday. Similar legislation appears in the laws of the Holy Roman Empire and in Saxon laws (28 A E Encyc 390). Although the English common law contained no general ban on Sunday activity aside from the prohibition against judicial proceedings, more expansive Sunday Laws were passed at an early date (29 Chas II, ch 7) and became the basis for similar legislation in this Country. The first Sabbath Laws in America were enacted in Virginia in 1614, some three years before the Pilgrims landed at Plymouth Rock (10 Va L Reg 64; 28 A E Encyc 390). Most of the colonies, including New York, followed suit. The earliest law in force in this State implying an obligation to observe the Sabbath was promulgated by the Dutch Burgomasters of Amsterdam in 1656 (see People v Hoym, 20 How Prac 76) and was superseded by the Duke of York's laws when the Dutch relinquished control to the English in 1664.
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 is still apparent has been retained and expanded over the years.
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 were repealed (L 1881, Penal Code, tit X, § 259 et seq.). Under this revised scheme the main categories of Sabbath breaking were divided into separate sections, with two important changes. First, the ban on Sunday traveling was eliminated entirely. Second, the prohibition against servile labor was refined by the inclusion of a separate exception for trades, manufactures and mechanical employments (Penal Code of 1881, § 266). That the new section banning trades, manufacturing and mechanical employments on Sundays was actually a parsing of the category prohibiting servile labor is apparent by the subsequent amendment excepting works of necessity provided they did not interfere with the repose of the community (L 1883, ch 358, § 3, amdg § 266 of the Penal Code of 1881). As previously noted this saving provision was only applicable to the labor prohibition and not the public traffic prohibition.
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).
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. This process of engrafting exceptions to the ban against Sunday selling gathered momentum and by 1967, when the statute was removed from the Penal Law and re-enacted as part of the General Business Law, the three original exceptions had swollen to several dozen and generated a corresponding increase in litigation. And certainly the recent amendments do not indicate that the stream of exceptions has abated. (See, e.g., L 1975, ch 759, § 1, permitting the public auction of thoroughbred, standardbred and quarter horse racehorses; L 1973, ch 995, § 1, permitting the sale of items of art and antiques.) The appellant's challenge to this section therefore is based on the resultant inconsistency, confusion and lack of perceptible scheme generated by this gallimaufrous section.
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 U.S. 703). The task of a reviewing court is to evaluate the assailed statutes in light of settled principles, not subjective predilections.
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, 366 U.S. 420, 425-426).
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 should be permitted, or prohibited. Respect for legislative wisdom and prerogatives as well as a proper sense of judicial power compels deference to enactments which are rationally related to the intended purpose. Consequently unconstitutionality on the grounds of irrationality is the weakest ground for striking down a statute and is seldom used. Yet where a statute encompasses a haphazard and anachronistic amalgamation of exceptions lacking discernible connection to the law's purpose, it cannot be judicially condoned. There is no question but that the Legislature could find that the sale of certain commodities or the rendering of certain services on Sunday are both necessary and desirable. Indeed the world cannot cease to function on Sunday and so exceptions must be found which reasonably relate to the health of the citizenry as well as the enhancement of their rest and relaxation. Even if these exceptions result in what appears to be a form of statutory discrimination that is arbitrary, the statute should not be judicially disturbed if found to be justified and related to the legislative objective (McGowan v Maryland, supra; see Kotch v Pilot Comrs., 330 U.S. 552). However, legislative leeway should never be permitted to extend to the promulgating of statutes which are utterly lacking in cohesive scheme. When the classifications are not only arbitrary but also irrational they transgress the broad prerogatives of the Legislature.
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, 37 N.Y.2d 326, 332 [concurring opn WACHTLER, J.]; Playtogs Factory Outlet v County of Orange, 51 A.D.2d 772 [concurring opn SHAPIRO, J.]). Suffice it to say that although mathematical symmetry is not required, the helter-skelter collection of exceptions found in this section ranging from thoroughbreds to soda water, renders it unenforceable and consequently popularly flouted. A concomitant effect of this unenforceability is an erosive disrespect for the law which should not be tolerated in the name of legislative latitude. Moreover, the irrationality of section 9 is confirmed by the conspicuous evidence of prosecutorial indifference, of popular disdain for the prohibitions of the statute and of community inappetence for its enforcement.
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 and present the Legislature with a clean slate. Should the Legislature continue to deem a Sunday closing law desirable it may readily devise a system of exemptions which could produce an atmosphere appropriate for a common day of rest and one which is consonant with today's needs and mores. Hopefully new legislation could provide sufficient leeway to allow the social dynamics of supply and demand as well as the stabilizing effects of custom and tradition to gravitate toward a scheme which is acceptable to the people and enforceable.
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.
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 1813, ch 24). The precursor to our present statute made Sabbath breaking punishable by a fine of up to $10 and if the public selling section was violated a forfeiture of all the goods exposed for sale with the proceeds paid to the "overseers of the poor" (Penal Code of 1881, §§ 269, 270). These penalties were continued unchanged in the Penal Law of 1909 (§§ 2149, 2152) but modified somewhat in the present statute. Nevertheless those parties violating the public traffic provision of the Sabbath Laws are not only fined from $5 to $10 (General Business Law, § 4) but forfeit all the property exposed for sale with the proceeds paid to the "overseers of the poor" (§ 12). As noted by the trial court this forfeiture section is rife with ambiguities. We know of no municipality which has "overseers of the poor". Moreover the statute fails to specify who the recipients would be or how they would be selected. This provision is a classic example of an eighteenth century statute which has never been modernized and is unable to function in a twentieth century world. This obsolete provision, in dire need of renovation, should be declared unconstitutionally vague.
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, confectionery, 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.
6. Persons, firms or corporations holding licenses and/or permits issued under the provisions of the alcoholic beverage control law permitting the sale of beer at retail, may sell such beverages at retail on Sunday before three antemeridian and after twelve noon for off-premises consumption to persons making purchases at the licensed premises to be taken by them from the licensed premises.
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.
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 Amdt) and, as presently written, is void for vagueness.
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, 30 N.Y.2d 572). I do, however, concur in today's holding that the forfeitures provided for in section 12 are fatally ambiguous and the section must therefore be declared invalid.
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, 37 N.Y.2d 326). Now, however, we are squarely presented with the constitutionality of the statute itself. Because my colleagues, who, like myself, find section 9 unconstitutional today, would leave intact other portions of article 2 which I believe are inextricably intertwined with section 9, I have set forth my views separately.
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" (37 N.Y.2d, at p 333 [concurring opn of Judge WACHTLER]). The focus here, instead, as in Acme, is on the question of whether the distinctions drawn by the statute between activities which may be conducted on Sunday and those which may not are rational ones, for, if they are not, they are violative of equal protection principles.
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., 29 N.Y.2d 446, 449; People v Friedman, 302 N.Y. 75, 79-80; People v Dunford, 207 N.Y. 17; People v Havnor, 149 N.Y. 195; People v Moses, 140 N.Y. 214; Merritt v Earle, 29 N.Y. 115; McGowan v Maryland, 366 U.S. 420, 431-451).
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 (366 US, at p 434). That court found the history of these changes to be strong evidence that Sabbath Laws throughout the country presently have a secular and not a religious purpose (at p 444; see, also, People v Acme Markets, supra, at p 333). So, in New York, for example, the use of such terms as "desecration" of the "Christian Sabbath" to describe breaches of the Sabbath peace caused by fishing on a private pond (People v Moses, 140 N.Y. 214, 215, supra) have dropped from sight, replaced by legislative concern with the recreational merits of exceptions such as ones pertaining to the sale of fishing tackle and beer, art and antiques, or, most recently, thoroughbred horses at auction (L 1975, ch 759, § 1).
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 years of patching and filling by the Legislature as it attempted to keep up with rapidly changing societal patterns and needs. Under such circumstances, it was almost inevitable that a time would come when the patchwork no longer made any sense. I share my brother Judges' view that that moment has arrived. For the statute in its present form creates distinctions which can only be described as irrational, precisely the conclusion reached by those of us who joined in the concurring opinion in Acme Markets (37 N.Y.2d, at pp 333-334). I find it desirable, however, to set forth here, somewhat more fully than was appropriate in the context of the Acme Markets decision, the legal basis upon which I believe it must be found that the statute violates equal protection principles.
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., 39 N.Y.2d 326, 332-333; Matter of Malpica-Orsini, 36 N.Y.2d 568) they must be upheld if they rest upon a rational basis. Distinctions among items which may be sold on Sunday and items which may not, though made in pursuit of the public health and welfare rather than on purely economic grounds, thus appear to be subject to this less stringent test of rationality.
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" (366 US, at p 426, n 3, citing Tigner v Texas, 310 U.S. 141). More helpfully, the court there stated that: "Although no precise formula has been developed, the Court has held that the Fourteenth Amendment permits the States a wide scope of discretion in enacting laws which affect some groups of citizens differently than others. The constitutional safeguard is offended only if the classification rests on grounds wholly irrelevant to the achievement of the State's objective. State legislatures are presumed to have acted within their constitutional power despite the fact that, in practice, their laws result in some inequality. A statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it." (McGowan v Maryland, supra, at pp 425-426 [emphasis added].)
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 Legislature's own goals are reasonably furthered by the classes it created.
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, 15 N.Y.2d 702); to buy skis but not ski wax, gasoline but not a battery, and, as in the case before us, to purchase drugs and medicines in a drugstore but not to purchase most of the many other products sold in that same store, often on the very same counter (People v Genovese, 24 N.Y.2d 917; People v Utica Daw's Drug Co., 16 A.D.2d 12).
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, 207 N.Y. 17, supra; People v Friedman, 302 N.Y. 75, supra) is furthered by such distinctions. It is difficult to see how such classifications are related to the promotion of rest or recreation or even of "religious liberty" (General Business Law, § 2). It is apparent that they are, rather, a hodgepodge of unrelated exceptions legislated at the instance of whichever interest groups were best able to bring their views to the Legislature's attention (see, for example, the concurring opn of Mr. Justice FRANKFURTER in McGowan v Maryland, supra, at p 535; Pfeffer, Church, State, and Freedom, pp 233-234). That such lobbying was their privilege as citizens does not serve to provide the resulting patchwork with a functional relationship to the stated legislative purpose. Instead, it reinforces our conclusion that the complexity of modern society's increasingly varied pursuits of rest and recreation has utterly outstripped the original statute, forcing the Legislature to accommodate these developments haphazardly as particularly pressing needs were called to its attention. In short, the present statute no longer "responds to the practical living facts with which it deals" (McGowan v Maryland, supra, at p 524).
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 ( 113 Utah 284), City of Springfield v Smith ( 322 Mo 1129), Bocci Sons Co. v Lawndale ( 108 Cal. 720), Matter of Ferguson ( 62 Okla. Cr. 145), Deese v City of Lodi ( 21 Cal.App.2d 631), Henderson v Antonacci ( 62 So.2d 5 [Fla]), Kelly v Blackburn ( 95 So.2d 260 [Fla]), Auto-Rite Supply Co. v Mayor ( 41 N.J. Super. 303, affd on other grounds 25 N.J. 188), Chan Sing v City of Astoria ( 79 Or. 411) and Broadbent v Gibson ( 105 Utah 53).
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" (336 US, at p 423). Inasmuch as other parts of those laws are integrally related to section 9, our holding today inevitably has consequences which will permeate interpretations of those other parts as well.
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, are sufficiently unrelated to the commercial interests involved in selling goods so that, at least for the purpose of deciding the case before us, whatever internal inconsistencies there may be in these sections should be left for examination at another time. But three of the sections subsumed under the rubric of Sabbath Laws are unavoidably interrelated. These are section 9, which has already been discussed, and sections 5 and 8, which, respectively, prohibit all "labor" on Sunday except that which is "needful during the day for the good order, health or comfort of the community" and all "trades, manufactures, agricultural or mechanical employments" except those which are "works of necessity" which can be performed without disturbing the repose of the community.
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 funeral of a serviceman or member of a secret fraternal society and after 1:00 P.M. at a religious ceremony. The general prohibition may be relaxed by local law after 2:00 P.M.
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, n 1).
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 (Pfeffer, 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 recall. (See Changes in the Occupational Structure of US Jobs, Monthly Labor Review [US Bureau of Labor Statistics], March, 1975, pp 24-34; Employment Outlook for Tomorrow's Job, Bureau of Labor Statistics: Occupational Outlook Handbook [1974-1975 ed]; Occupational Outlook for the Mid-Eighties, Occupational Outlook Quarterly, vol 18, No. 4 [Winter, 1974].)
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, 7 A.D.2d 711), but is the practice of a trade not "necessary" on Sunday (People v Kaplan, 8 A.D.2d 163). Further, this is so even when the proprietor of such an establishment does not work on Sunday, but merely leaves the front doors open from Saturday night to Monday morning.
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, 40 Misc.2d 303, affd 27 A.D.2d 987). As the dissenting opinion in the Kaplan case pointed out, it is "an obvious fact [that] no Legislature has ever considered the problem [of automated laundries] in the context of the Sunday laws" (8 A.D.2d, at p 168 [dissenting opn of then Justice now Chief Judge BREITEL]). (See, also, People v Rubenstein, 17 Misc.2d 10; People v Aliprantis, 8 A.D.2d 276; People v Welt, 14 Misc.2d 275; People v Andob Corp., 25 Misc.2d 542; Jiffy Auto Laundry v Monaghan, 118 N.Y.S.2d 189 [all cases involving automatic laundries brought under various sections of the statute].)
Confusions among the definitions of selling, of trade, and of labor have abounded as have inconsistent definitions of each of those terms themselves. So "labor" has been defined as not being limited to menial work (People v Polar Vent of Amer., 10 Misc.2d 378, affd 4 N.Y.2d 954). In the Polar Vent case, employees who did no other work than display wares and solicit sales from customers on Sunday in a showroom were held to be in violation of section 5, and the same holding was applied to sales in a showroom of homes which could be built upon the customer's land (People v Federal Bldrs. Home Modernization Corp., 65 Misc.2d 407) ; on the other hand, a real estate salesman who did the same thing has been held exempt from prosecution because the sale of real estate was not intended to be covered by the prohibition upon sale of goods in the predecessor to section 9 (People v Dunford, 207 N.Y. 17, supra), and no suggestion has ever been made, to our knowledge, that such sales of realty might violate the labor section of the statute. Thus one may purchase a house on Sunday if it is already attached to land, but otherwise not. A senior accountant supervising a team of auditors has been held innocent of violating section 5 (People v Sacks, 2 Misc.2d 201) because his work was entirely mental; on the other hand, the supervisor of men working in a factory was convicted even though he proved that he did no physical labor but only mental work (People v Adler, 174 App. Div. 301). The operation of a travel bureau is not violative of section 5 (Matter of Haroche v Leary, 64 Misc.2d 191); again on the other hand, it is the "'business one practices or the work in which one engages regularly'" which was the rationale on which the operation of the automatic laundry by an absent proprietor was held violative of section 8 in People v Kaplan ( 8 A.D.2d 163, 164, supra).
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 was the Legislature's ability to amend section 9 rationally, the invalidation of section 9 would leave the hopeless task of deciding which of the sales formerly authorized by that section are forbidden under the rubrics of labor or trade.
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.
Chief Judge BREITEL and Judges JASEN, GABRIELLI, JONES and COOKE concur with Judge WACHTLER; Judge FUCHSBERG concurs in a separate opinion.
Order reversed and the information dismissed.