People on Complaint of Freshel v. Teter

CourtNew York Magistrate Court
Citation231 N.Y.S.2d 651,35 Misc.2d 823
Decision Date31 August 1962
PartiesThe PEOPLE of the State of New York on the complaint of Curtis FRESHEL, President of the Arti-Vivisection League, v. Earl TETER, Defendant. City Magistrates' Court of City of New York, Borough of Manhattan Arrest Court

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231 N.Y.S.2d 651
35 Misc.2d 823
The PEOPLE of the State of New York on the complaint of
Curtis FRESHEL, President of the Arti-Vivisection League,
Earl TETER, Defendant.
City Magistrates' Court of City of New York, Borough of
Manhattan Arrest Court.
Aug. 31, 1962.

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Albert E. Felix, New York City, for the complainant.

Mudge, Stern, Baldwin & Todd, New York City (Paul D. Miller and Robert P. Shaughnessy, New York City, of counsel), for the defendant .

WALTER J. BAYER, City Magistrate.

To strike down Penal Law, § 195-a, Subd. 2, * on constitutional grounds is the plea of this defendant. He moves to dismiss the complaint urging that this statute violates the Commerce Clause (U.S .Constit. Art, I, § 8), and the due process clauses of both the Federal and New York Constitutions. (U.S.Constit. 14th Amend; N.Y.Sonstit. Art. I, § 6).

[35 Misc.2d 824] Defendant, Stable Manager for Dodge Stables at the National Horse Show, is charged with a violation of Penal Law, § 195-a, Subd. 2, in that on November 2, 1960, he exhibited at the National Horse Show at

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Madison Square Garden horses whose tails had been cut in such a manner as to alter the natural carriage of the tail when it was not necessary for the health or life of the said animals, and that defendant knew that their tails had been cut.

Despite the Court's view that few indeed are those who could possibly be caught in this statute's prohibitions, defendant's direct challenge to it cannot be shunted aside or ignored. Sec. 195-a covers a narrow area where the Congress has not acted. But, inroads by states upon interstate affairs 'are individually too petty, too diversified, and too local to get the attention of a Congress hard pressed with more urgent matters. The practical result is that in default of action by us they will go on suffocating and retarding and Balkanizing American commerce, trade and industry'. (Mr. Justice Jackson, Duckworth v. Arkansas, 314 U.S . 390, 397, 400, 62 S.Ct. 311, 316, 86 L.Ed. 294.) Also, from the very beginning the power to 'regulate commerce among the several states' (U.S.Const., Art. I, § 8, Cl. 3), '--Chief Justice Marshall held, was the power to 'govern' not merely transportation of merchandise across state lines but any 'intercourse' which 'concerns more states than one". (National and State Power with Respect to Interstate Commerce--Conflict in the Court--Mendelson--Univ. of Chicago Press (1961) P. 98 referring to Gibbons v. Ogden, 9 Wheaton 1, [22 U .S.] 1, 6 L.Ed. 23 (1824).

As stipulated by the parties, the Court finds that defendant is a resident of Lexington, Kentucky; he is employed at such location by Castleton Farm, Dodge Stables Division; the horse or horses he is charged with exhibiting at the Horse Show are ordinarily stabled at Castleton Farm in Kentucky; such horse or horses were brought into New York State for the sole purpose of being exhibited at the Horse Show at Madison Square Garden in November, 1960; and such horse or horses are owned by non-residents of the State of New York. No contention is made that the tails of the horses concerned were operated on within the State of New York, but rather reliance is placed by Complainant on the wording of the statute in that it prohibits the ownership, possession, showing or exhibiting in this State of horses operated upon 'within or without' this State.

Although this Court, as a Court of inferior jurisdiction, should and here does, proceed cautiously when asked to rule upon the constitutionality of legislative enactments (People v. Wright, 12 Misc.2d 961, 963, 173 N.Y.S.2d 160, 163), it is clear that the Court not only has the [35 Misc.2d 825] power, but as emphasized above, is indeed called upon, where a statute clearly oversteps constitutional limitations to declare its invalidity. (People v. Marcello, Mag.Ct., 25 N.Y.S.2d 533; People on Complaint of Jones v. Mestichelli, Mag.Ct., 18 N.Y.S.2d 406; People on Complaint of West v. Princeton, Inc., 154 Misc. 811, 278 N.Y.S. 631; see also People v. Lee, 151 Misc. 431, 434, 272 N.Y.S. 817, 821).

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