Opinion
February Term, 1896.
Albert I. Sire, for the appellant.
John R. Fellows and John D. Lindsay, for the respondent.
The appellant was convicted of a violation of section 1 of chapter 823 of the Laws of 1895, and he appeals on the ground that the act is unconstitutional as a violation of the provision of the Constitution, that "no person shall * * * be deprived of life, liberty or property without due process of law." (N Y State Const., Art. 1, § 6; U.S. Const., 14th Amend.)
The act in question prohibits any person from carrying on or engaging in the business of shaving, hair cutting or other work performed by a barber, on the first day of the week, and provides a punishment for such offense. It is claimed that the law falls within the principle established by People v. Jacobs ( 98 N.Y. 107) ; People v. Marx (99 id. 377), and People v. Gillson (109 id. 389) In the case last cited the principle, as stated, is that "a person living under our Constitution has the right to adopt and follow such lawful industrial pursuit, not injurious to the community, as he may see fit. * * * Liberty, in its broad sense, as understood in this country, means the right not only of freedom from servitude, imprisonment or restraint, but the right of one to use his faculties in all lawful ways, to live and work where he will, to earn his livelihood in any lawful calling, and to pursue any lawful trade or avocation." It was also said in that case, "That under an exercise of the police power the enactment must have reference to the comfort, the safety or the welfare of society, and it must not be in conflict with the Constitution. The law will not allow the rights of property to be invaded under the guise of a police regulation for the protection of health, when it is manifest such is not the object and purpose of the regulation." And as it is generally for the Legislature to determine what laws and regulations are needed to protect the public health and serve the public comfort and safety, if its measures are calculated, intended, convenient or appropriate to accomplish such ends, the exercise of its discretion is not the subject of judicial review. But those measures must have some relation to these ends.
Courts must be able to see upon a perusal of the enactment that there is some fair, just and reasonable connection between it and the ends above mentioned. Unless such relation exists, the enactment cannot be upheld as an exercise of the police power. The question is, whether the prohibition of a particular trade upon Sunday is a violation of the principle thus established. There is nothing in this act that attempts to provide that the appellant shall not carry on his particular trade or calling in any manner, or at any place that he pleases. He is simply prohibited from carrying on that trade upon Sunday. An examination of the legislation of most if not all of the States will show that that subject was regulated by statute prior to the adoption of the Federal Constitution and of the Constitution of this State; and that prohibition of work upon Sunday, more or less severe, was in force in all the States at that time, and the right of the Legislature to regulate the observance of the Sabbath has been recognized without exception by this and some of the States since the formation of our government.
Thus, in the case of The People v. Moses ( 140 N.Y. 215) the court said: "The Christian Sabbath is one of the civil institutions of the State, and that the Legislature, for the purpose of promoting the moral and physical well-being of the people, and the peace, quiet and good order of society, has authority to regulate its observance and prevent its desecration by any appropriate legislation, is unquestioned." The Legislature thus having the authority to regulate the observance of the Sabbath, we cannot review its discretion, or determine upon the expediency, wisdom or propriety of legislative action in matters within the power of the Legislature. (See People ex rel. Bolton v. Albertson, 55 N.Y. 54. )
In the case of Lindenmuller v. People (33 Barb. 554), a case that has been cited with approval in many cases, it was expressly held that the Legislature has the power to determine what acts it is necessary to prohibit on Sunday for the purpose of promoting the moral and physical well-being of the people, and for the purpose of preventing the desecration of the Sabbath; that it was a matter within the Legislature's discretion and power and that the courts could not review their discretion and sit in judgment upon the expediency of their acts. It is for the Legislature to say what business it is necessary to prevent for the proper regulation or observance of the Sabbath; and so long as the regulations described have relation to that particular object, the discretion of the Legislature cannot be controlled by the court. This is in accord with the case of The People ex rel. Hobach v. Sheriff ( 13 Miss. 587).
The objection is also made to this act on the ground that it is class legislation, granting a privilege to persons transacting business in New York and Saratoga which is not allowed outside of those localities. We do not think that the act can be questioned upon this ground. If the Legislature has power to regulate the observance and prevent the desecration of the Sabbath, it has power to say what acts in the different localities of the State it is necessary to prohibit in order to accomplish this purpose. It is quite conceivable that an act in one locality, thickly settled, should be prohibited, which, in sparsely settled districts of the State could be allowed, and for this reason an act might be objectionable in one district which would not be so in another. All of these regulations, having in view the proper observance of the day, are within the discretion of the Legislature. ( Matter of Bayard, 25 Hun, 548.)
We have been referred to the case of People v. Eden, decided by the Circuit Court of Cook county, Illinois, in which it appears to have been held that the Legislature cannot single out any one calling and make it the subject of special legislation. We cannot assent to the views there expressed, so far as they relate to laws passed regulating the observance of Sunday. In the case of People v. Lindenmuller ( supra) a prohibition of theatrical performances on Sunday was expressly upheld, and the prohibition of the sale of liquor on Sunday has been always recognized as a proper exercise of the power of the Legislature. It is for the Legislature to say what trades or callings can be carried on with due regard for the observance of the Sabbath.
We think, therefore, that the act was clearly within the power of the Legislature, and that the conviction must be affirmed.
VAN BRUNT, P.J., BARRETT, RUMSEY and WILLIAMS, JJ., concurred.
Conviction affirmed.