149 N.Y. 195, People v. Havnor

Citation:149 N.Y. 195
Party Name:THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. HENRY J. HAVNOR, Appellant.
Case Date:April 14, 1896
Court:New York Court of Appeals

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149 N.Y. 195



HENRY J. HAVNOR, Appellant.

New York Court of Appeal

April 14, 1896

Argued March 13, 1896.

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Albert I. Sire for appellant. The act is void under article 1 of the Constitution of this state, which provides that no person shall be deprived of life, liberty or property without due process of law; and it is also void under the rights guaranteed by the Constitution of the United States to the citizens of the several states. (Const. N.Y. art. 1, § 1; U.S. Const. 5th & 14th amendments; People v. Gillson, 109 N.Y. 389; Livestock Ass. v. C. C. Co., 1 Abb. [ U. S.] 388, 389; Slaughter

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House Cases, 16 Wall. 36; In re Jacobs, 98 N.Y. 98; Bertholf v. O'Reilly, 74 N.Y. 509; People v. Marx, 99 N.Y. 377; Austin v. Murray, 16 Pick. 121; Com. v. Alger, 7 Cush. 53; Health Dept. v. Rector, etc., 145 N.Y. 32; People ex rel. v. Warden, etc., 144 N.Y. 529.)

John D. Lindsay for respondent. The work of a barber is not a work of necessity. (Phillips v. Innes, 4 C. & F. 234; Com. v. Jacobus, 1 Penn. Leg. Gaz. Rep. 491; Com. v. Williams, 1 Pearson (Penn.), 61; Com. v. Waldman, 140 Penn. St. 89; Com. v. Dextra, 143 Mass. 28; Ungericht v. State, 119 Ind. 379; State v. Frederick, 45 Ark. 347; State v. Torry, 7 Baxt. 95.) Even though it were necessary, in the sense and under the circumstances sought to be shown in the case at bar, that a considerable number of persons should be shaved on Sundays, the legislature might, nevertheless, prohibit it. (People v. Moses, 140 N.Y. 214; Lindenmuller v. People, 33 Barb. 548; Neuendorff v. Duryea, 69 N.Y. 557; People ex rel. v. Sheriff, 13 Misc. 587.) The legislature having the unquestionable right to regulate the observance of the Sabbath, and the act here in question, being an appropriate exercise of the right, will not be invalidated as an unreasonable or unwarranted interference with the defendant's right to exercise his trade, and, therefore, violative of section 6 of article 1 of the Constitution of this state, which provides that 'no person shall be deprived of life, liberty or property without due process of law.' (Wynehamer v. People, 13 N.Y. 391; Bertholf v. O'Reilly, 74 N.Y. 521; People v. Gillson, 109 N.Y. 389, 398.) The fifth amendment to the Federal Constitution is not a limitation upon the state governments in reference to their own citizens, but is exclusively a restriction of the Federal power. (Twitchell v. Com., 7 Wall. [ U. S.] 321.) The statute cannot be said to be class legislation in violation of the fourteenth amendment to the Federal Constitution. (Missouri v. Lewis, 101 U.S. 22; Barbier v. Connolly, 113 U.S. 27; Hayes v. Missouri, 120 U.S. 68.) The wisdom or propriety of the act is not the subject of

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judicial inquiry. (People ex rel. v. Albertson, 55 N.Y. 54; Bertholf v. O'Reilly, 74 N.Y. 516; People v. Budd, 117 N.Y. 1.)


The main ground upon which the defendant asks us to reverse the judgment against him is that the statute under which he was convicted is in conflict with that provision of the Constitution which provides that 'no person shall be deprived of life, liberty or property without due process of law.'(Const. art. 1, § 6.) The statute in question, entitled 'An act to regulate barbering on Sunday, ' provides that 'any person who carries on or engages in the business of shaving, hair cutting or other work of a barber on the first day of the week shall be deemed guilty of a misdemeanor * * * provided that in the city of New York and the village of Saratoga Springs barber shops * * * may be kept open and the work of a barber performed therein until one o'clock of the afternoon of the first day of the week.' (L. 1895, chap. 823.)

The defendant claims that this statute deprives him to a certain extent of his 'liberty, ' by preventing him from carrying on a lawful calling as he wishes, and also of his 'property, ' by preventing the free use of his premises, tools and labor, and thus rendering them less productive. It is not claimed that his occupation is of a noisy nature or that he so carried on his business as to disturb the peace, quiet and good order of the neighborhood, or that the act for which he was convicted, if done on any day of the week other than the first, or at any hour of that day prior to one o'clock in the afternoon, would have been a violation of law. Nor is it claimed that the conviction was authorized by the common law, or that it was based upon any statute except the one above cited, and, indeed, the judgment of the Court of Special Sessions expressly refers to that act and adjudges the defendant guilty of a misdemeanor because he violated its command.

The phrase 'due process of law' is not satisfied by a judgment pronounced, after an opportunity to be heard, by a court

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of competent jurisdiction in accordance with the provisions of a statute, unless that statute accords with the provisions of the fundamental law. (Wynehamer v. People, 13 N.Y. 378, 393.)In a broad sense, whatever prevents a man from following a useful calling is an invasion of his 'liberty, ' and whatever prevents him from freely using his lands or chattels is a deprivation of his 'property.' (Bertholf v. O'Reilly, 74 N.Y. 515; In re Jacobs, 98 N.Y. 98, 105.) Yet, during the history of our state many laws have been passed which, to some extent, have interfered with the right to liberty and property, but their accord with the Constitution has seldom been questioned, and, when questioned, has been generally sustained. The power of taxation, the right to preserve the public health, to protect the public morals and to provide for the public safety may interfere somewhat with both liberty and property, yet proper statutes to effect these ends have never been held to invade the guarantees of the Constitution. While the confinement of the insane or of those afflicted with contagious diseases infringes upon personal liberty, and the destruction of buildings to prevent the spread of fire, the exercise of the power of eminent domain and the prevention of cruelty to animals encroach upon the right to property, still the proper exercise of these powers, under the authority of the legislature, although constant and known of all men, gives rise to no question of moment under the Constitution. The sanction for these apparent trespasses upon private rights is found in the principle that every man's liberty and property is, to some extent, subject to the general welfare, as each person's interest is presumed to be promoted by that which promotes the interest of all. Dependent upon this principle is the great police power, so universally recognized, but so difficult to define, which guards the health, the welfare and the safety of the public. While this power may not be employed ostensibly for the common good, but really for an ulterior purpose, when its object and effect are manifestly in the public interest, as was said in the Jacobs case, 'it is very broad and comprehensive, and * * * under

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it the conduct of an individual and the use of property may be regulated so as to interfere, to some extent, with the freedom of the one and the enjoyment of the other.' (p. 108.) In the exercise of this power the legislature has the right, generally, to determine what laws are needed to preserve the public health and protect the public safety, yet its discretion in this respect is not wholly without limit...

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