People on Complaint of Freshel v. Teter

• Decision Date: 31 August 1962
• Citation: 231 N.Y.S.2d 651,35 Misc.2d 823
• Parties: The 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
• Court: New York Magistrate Court

Page 651

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, v. Earl TETER, Defendant.

City Magistrates' Court of City of New York, Borough of Manhattan Arrest Court.

Aug. 31, 1962.

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).

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 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 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).

In the face of inertia of Congress, the potency of the Commerce Clause varies under the differing views of the Justices of the Supreme Court. Fervent espousal of freedom of the national market is made by Mr. Justice Jackson, claiming it to be a cornerstone of our democracy.

'Our system, fostered by the Commerce Clause, is that every farmer and every craftsman shall be encouraged to produce by the certainty that he will have free access to every market in the Nation, that no home embargoes will withhold his exports, and no * * * state will by customs duties or regulations exclude them. Likewise, every consumer may look to the free competition from every producing area in the Nation to protect him from exploitation by any . Such was the vision of the Founders.' H. P. Hood & Sons v. Du Mond, 336 U.S. 525, 539, 69 S.Ct. 657, 665, 93 L.Ed. 865, 875 (1949)

On the other hand, it is said that Congress' failure to act gives freedom to the local government to do so--a complete espousal of states' rights. (See dissenting opinion of Mr. Justice Black, H. P. Hood & Sons, Inc. v. Du Mond, supra, at p. 550, 69 S.Ct. at p. 677, 93 L.Ed. at p. 880). And, finally

'Between these extremes Mr. Justice Frankfurter (and perhaps most of his colleagues) finds 'the basic function of this Court as the mediator of powers within the federal system.' In litigation involving impositions upon interstate commerce, the Justice follows the same balancing-of-interests technique that he uses in other cases. The claims of a national market must be weighed against those of local self-government. On the one side is the danger of Balkanization; on the other the scourge of outside interference with local affairs.'

(Conflict in the Court, Mendelson, supra, P. 105)

Thus, in H. P. Hood & Sons v. Du Mond, Mr. Justice Frankfurter was 'constrained to dissent because' he could not 'agree in treating what is essentially a problem of striking a balance between competing interests as an exercise in absolutes. Nor does it seem * * * that such a problem should be disposed of on a record from which we cannot tell what weights to put in which side of the scales.' (See dissenting opinion of Mr. Justice Frankfurter, H. P. Hood & Sons v. Du Mond, supra at p. 564, 69 S.Ct. at p. 668, 93 L.Ed. at p. 888).

At once, then, this Court is thrown into the conflict which has sharply split the Supreme Court--and perforce must follow one of these paths.

Except for the unreported case of People v. Hoge, (Spec.Sessions, Part, VI, N.Y.Co. Cal. Nos. 23-26, Inf....