Opinion
November, 1901.
Bennet Silverman (William S. Bennet, of counsel), for relator.
Eugene A. Philbin, District Attorney (Charles E. Le Barbier, Assistant District Attorney, of counsel), opposed.
The relator is detained upon a charge of selling and delivering uncooked meats on Sunday in the county of New York, and it appears that the sale and delivery took place before the hour of ten in the forenoon. Under section 267 of the Penal Code, prior to its amendment by chapter 392 of the Laws of 1901, the sale of articles of food generally was permitted on Sunday before ten o'clock and the sale of meals, to be eaten upon the premises, was allowed at any time of the day. By the amendment of 1901 the following sentence was added: "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 or time of the day." It is contended, on behalf of the relator, that this amendment does not apply to the sale of uncooked meats before ten o'clock, and that if it does so apply the absolute prohibition of the sale of raw food on Sunday is excessive of the police powers of the Legislature, and so unconstitutional as an encroachment upon the liberty of the individual. It is clear that the amendment of 1901 does apply to the sale of meats. The section before the amendment permitted the public sale of food, cooked or uncooked, before ten o'clock, and the amendment must relate to this part of the section, and limit the right of public sale before ten o'clock to cooked meats, etc. It cannot be made to apply to the sale of meals, for it has no relation to that subject unless the Legislature is to be assumed to have classed as a meal the public selling of uncooked flesh to be eaten upon the premises, an interpretation not reasonably applicable to the habits of a civilized community. I take the act, therefore, to intend the prohibition of the sale of uncooked meat at any hour on Sunday, but to allow the sale of meals at any time, and the public sale of cooked meats, etc., before ten o'clock, and I find no reason for holding that this regulation of Sunday traffic is unconstitutional. Sunday laws, prohibiting trade on that day, have been held in numerous adjudications to be well within the police powers of the Legislature and have been universally upheld upon the ground that the physical and moral well being of the people may be advanced thereby. Lindenmuller v. People, 33 Barb. 548, 573, 575; People v. Havnor, 149 N.Y. 197, 202. The following instances of judicial expression are pertinent to the question raised by the relator regarding the police powers of the Legislature. In the Lindenmuller case the court, at page 568, said: "The Legislature are the sole judges of the acts proper to be prohibited, with a view to the public peace, and as obstructing religious worship and bringing into contempt the religious institutions of the people." And in Neuendorff v. Duryea 69 N.Y., 557, 563, the court said: "The Christian Sunday may be protected from desecration by such laws as the Legislature in its wisdom may deem necessary; and that it is the sole judge of the acts proper to be prohibited with a view to the public peace." Within these adjudications it was competent for the Legislature to place restrictions upon the public sale of food on Sunday, and if it has seen fit to prohibit general marketing on that day, and to permit the sale of cooked meats only, this gives no ground for interference by the courts. The relator contends, furthermore, that the selling of uncooked meat on Sunday morning is a work of necessity, but there is no proof that, when selling meat as complained of, he was engaged in a work of actual present necessity, and the fact cannot be assumed. 24 Am. Eng. Ency. of Law, 542. The writ must, therefore, be dismissed and the relator remanded to the custody of the warden.
Writ dismissed and relator remanded to the custody of the warden.