People on Information of Baker v. Kaufman Carpets, Inc.

• Decision Date: 22 January 1969
• Parties: The PEOPLE, on the information of Ptl. George BAKER Yonkers Police Dept., Complainant, v. KAUFMAN CARPETS, INC., Defendant.
• Court: New York Court of Special Sessions

Page 241

298 N.Y.S.2d 241

59 Misc.2d 113

The PEOPLE, on the information of Ptl. George BAKER Yonkers Police Dept., Complainant, v. KAUFMAN CARPETS, INC., Defendant.

Court of Special Sessions, City of Yonkers.

Jan. 22, 1969.

Francis B. Cline, Corp. Counsel, for the People, by Charles calafiura.

Morris Waldhorn, Yonkers, for defendant.

GILBERT M. LANDY, Judge.

The Defendant is charged with violating General Ordinance, 152--1957, Sec. 3, as amended by General Ordinance, 23--1963, of the City of Yonkers. The ordinance now is designated as Chapter 66 of the Code of Ordinances of the City of Yonkers.

It is alleged in the information, that on May 30, 1967, at about 4:25 P.M., the Defendant, the manager of Kaufman Carpets, Inc., store located at Cross County Shopping Center, in Yonkers, sold or offered for sale, carpets or carpeting at the store in violation of the ordinance.

Chapter 66--1, provides as follows:

'66--1. Memorial Day observance.

The legal holiday known as Memorial Day, being by general consent set apart for rest, repose and patriotic observances and uses, and the observance thereof being for the general welfare and and health of the community, the doing of certain acts hereinafter specified, which are deemed serious interruptions and desecrations of the repose and patriotic liberty and sentiment of the community, are prohibited.'

Chapter 66--3 reads:

'66--3. Public traffic on Memorial Day.

All manner of public selling or offering for sale of any property upon such holiday is prohibited, except as follows:'

Section 3 then specifies certain exceptions from the prohibition contained above. However, the sale of or the offering for sale of carpets or carpeting, is not enumerated among the exceptions specified therein.

The Defendant moves to dismiss the information on the ground that there is no authority in law which authorizes the City of Yonkers to 'prohibit' the business activities of the Defendant on Memorial Day, May 30, 1967.

The issue is limited to the question of whether or not the word 'regulating' contained in General Municipal Law Section 86, includes the authority to the city to 'prohibit' the business activities of the Defendant on Memorial Day.

General Municipal Law Section 86, reads as follows:

'86. Regulation of commercial and business activities on Memorial day and Independence day.

The municipal officers and boards in the several cities, towns and villages of this state now having the authority to enact ordinances, may adopt ordinances regulating the nature of commercial and business activities that may be conducted on Memorial day and Independence day and the hours within which the various types of commercial and business activities may be conducted on Memorial day and Independence day. Provision shall be made in such ordinances for punishment of violations thereof.'

It is contended by the Defendant, that if the Legislature had intended to authorize municipalities to 'prohibit' commercial and business activities on Memorial Day, the specific word of prohibition would have been employed in Section 86, in a manner similar to that which is found in the Sabbath Law (General Business Law Art. 2, Secs. 2, 8 (formerly Penal Law Secs. 2140, 2146)).

On that premise, the Defendant contends that the prohibition against the sale of carpets on Memorial Day contained in Code of Ordinances of the City of Yonkers, Section 66, exceeds the power given to the city by the provisions of General Municipal Law Section 86.

It is fundamental that a city has no authority to act in excess of the power granted to it by the Legislature (Brooklyn City Railroad Company v. Whalen, 191 App.Div. 737, 739, 182 N.Y.S. 283, 285; Board of Education, etc. Dist. #4 of Town of Greece v. Board of Education of the City of Rochester, 43 Misc.2d 803, 252 N.Y.S.2d 384, aff'd. 23 A.D.2d 805, 258 N.Y.S.2d 375; Jewish Consumptives' Relief Society v. Town of Woodbury, 230 App.Div. 228, 234, 243 N.Y.S. 686, 692, aff'd. 256 N.Y. 619, 177 N.E. 165; Robia Holding Corporation v. Walker, 257 N.Y. 431, 438, 178 N.E. 747, 739).

Thus, the definition and the meaning of the word 'regulate' and the intent of the Legislature in incorporating that word in General Municipal Law Section 86, is the subject of specific focus of the court in this case.

Several cases contain illustrations of the recognition of a difference between regulation and prohibition. As said by Judge Dillon, in Oil City Discount Center, Inc., v. City of Yonkers, 53 Misc.2d 191, 194, 277 N.Y.S.2d 945, 948, 'There is a wide difference between regulation and prohibition.'. In Peoples' Dairy v. City of Lackawanna, 1 Misc.2d 700 at 703, 149 N.Y.S.2d 392, we find these words, 'There is a substantial difference between 'prohibition' and 'regulation'.' See also: cf. Defiance Milk Products Company v. Du Mond, 309 N.Y. 537, 541, 132 N.E.2d 829, 830.

In Cronin v. People, 82 N.Y. 318, the Charter of the City of Albany (L.1870, tit. 3, sec. 12, subd. 14), authorized the City of Albany to enact ordinances 'to regulate the erection, use and continuance of slaughter-houses.' The city enacted such an ordinance, the violation of which was made a misdemeanor.

The defendant was charged with slaughtering cattle, in a prohibited area of the city.

The defendant contended that the authority to 'regulate' could not be construed to permit a total 'prohibition' in the particular areas of the city specified in the ordinance. The court held that the specific words 'to regulate the creation, use and continuance of slaughter-houses,' contained in the charter of the city indicated that it was intended to authorize the city to prohibit the continuance of the industry (p. 322). However, the court indicated the general rule as follows:

* * * 'As a general rule, with, perhaps, occasional exceptions, through all the paragraphs of the section where some act or thing is not to be permitted at all, anywhere or in any locality, a more restrictive word than 'regulate' is used; as, 'to prevent and remove' obstructions in the streets; where the act or thing is such as may be permitted under proper restraint, at convenient times, in suitable localities, the word 'regulate' is used; and where the act is one...