People v. Abrahams

• Citation: 386 N.Y.S.2d 661,353 N.E.2d 574,40 N.Y.2d 277
• Parties: , 353 N.E.2d 574 The PEOPLE of the State of New York, Respondent, v. Bernard S. ABRAHAMS et al., Defendants, and Louis Fratto, Appellant.
• Decision Date: 17 June 1976
• Court: New York Court of Appeals Court of Appeals

Page 661

386 N.Y.S.2d 661

40 N.Y.2d 277, 353 N.E.2d 574

The PEOPLE of the State of New York, Respondent, v. Bernard S. ABRAHAMS et al., Defendants and Louis Fratto, Appellant.

Court of Appeals of New York.

June 17, 1976.

Marshall L. Brenner and Gary E. Lane, Poughkeepsie, for appellant.

John R. King, Dist. Atty. (Bridget R. Rahilly and Jennifer L. Van Tuyl, Poughkeepsie, of counsel), for respondent.

Warren S. Radler, Buffalo, and Kenneth F. Astarita, West Seneca, for Twin Fair Distributors Corp., amicus curiae.

WACHTLER, Judge.

We have before us once again the problem presented by what are commonly called the Sunday Blue Laws. And while the notion of a quiet Sunday is unquestionab valid in principle, we believe that two of the sections challenged here are constitutionally defective. We refer specifically to the sections dealing with the prohibition against public sales and the forfeiture provision of the statute (General Business Law, §§ 9, 12). ¹ Due to the gallimaufry of exceptions which has obliterated any natural nexus between section 9 and the salutary purpose of the Sabbath Laws and the pervasive ambiguity of section 12 we declare both of these sections unconstitutional.

There is no dispute as to the facts. Louis Fratto, an employee in a local pharmacy, was charged with Sabbath breaking by virtue of selling a ceramic bank, merchandise not specifically exempted from the general closing mandate of the Blue Laws (General Business Law, § 9). ² The trial court dismissed the information on the grounds that the forfeiture and enforcement provisions of the statute were unenforceable by reason of vagueness, ambiguity and inconsistency (General Business Law, §§ 4, 12). A divided Appellate Term reversed on the law and reinstated the information. The dissenter found the statute an unconstitutional anachronism the purpose of which has been completely frustrated by the proliferation of arbitrary and haphazard exceptions.

On appeal to our court, both sides raise the classic arguments. The appellant contends that the crazyquilt exceptions to the general closing directive render section 9 of the statute unconstitutional due to the absence of a rational basis to accomplish the avowed purpose of the law. The State responds by raising the presumption of constitutionality and though conceding the imperfections of section 9, argues that the Legislature should be afforded a wide degree of latitude and delineating those activities which are permissible.

Before proceeding to a discussion of the merits it should be noted that the present Sabbath Laws (General Business Law, art. 2) are the product of centuries of evolutionary mutation. Thus, a cursory review of their history would be appropriate in order to set our holding, as well as the interrelationship among the various provisions, in perspective.

There is little doubt that these laws are clearly religious in origin being derived from the concise directive of the Old Testament that on the seventh day no work shall be done (Exodus, XXXI, 14--15). As a precept of civil government, however, the Sunday Laws are over 16 centuries old having been originated by the Roman Emperor Constantine in 321 AD who ordered all Judges and inhabitants of cities to rest on Sunday. Similar legislation appears in the laws of the Holy Roman Empire and in Saxon laws (28 A&E Encyc. 390). Although the English common law contained no general ban on Sunday activity aside from the prohibition against judicial proceedings, more expansive Sunday Laws were passed at an early date (29 Chas. II, ch. 7) and became the basis for similar legislation in this Country. The first Sabbath Laws in America were enacted in Virginia in 1614, some three years before the Pilgrims landed at Plymouth Rock (10 Va.L.Reg. 64; 28 A&E Encyc. 390). Most of the colonies, including New York, followed suit. The earliest law in force in this State implying an obligation to observe the Sabbath was promulgated by the Dutch Burgomasters of Amsterdam in 1656 (see People v. Hoym, 20 How.Prac. 76) and was superseded by the Duke of York's laws when the Dutch relinquished control to the English in 1664.

The genesis of our present statute appears to have been the act of October 22, 1695 'an Act against profanation of the Lord's Day, called Sunday' which contains many provisions similar to those appearing in previous versions of the statute presently under consideration (Laws of the Colony of New York, 1695, ch. 52). This act remained in effect during the Revolutionary War and was retained by the Constitution of 1777. It remained in force until 1788 when the first State Sabbath Law was enacted (Laws of New York, 1785--1788, ch. 42). This law, entitled 'An Act for suppressing immorality', cast the acts prohibited into four general categories: (1) travel, (2) labor or work, (3) sports and amusements, (4) business or occupation. Specifically the statute provided that on the first day of the week commonly called Sunday 'there shall be no travelling, servile labouring, or working (works of necessity and charity excepted) shooting * * * hunting or frequenting of tipling houses * * * and that no person shall cry, shew forth or expose to sale, any wares, merchandize, fruit, herbs, goods or chattels * * * except small meat and milk, and fish, before nine of the o'clock in the morning'. This basic scheme which is still apparent has been retained and expanded over the years.

The first revision occurred in 1813 and, while it effected no change, is significant for the notes compiled in the margin. These notes list the source material for the various provisions and clearly indicate that the prohibition against laboring has roots separate and distinct from the prohibition against public selling (L.1813, ch. 24, margin notes; compare General Business Law, § 8, with § 9). Another indication of the dichotomy between these two categories is the applicability of an exception for 'necessity and charity' with respect to the ban on Sunday labor and the absence of a similar exception for the public traffic provision (see, also, 37 Cycl., Sunday, III, C, 2). The historical distinction between these two concepts is important when ascribing meanings to similar provisions in successor statutes.

Although there were subsequent revisions effecting minor changes throughout the nineteenth century, New York's original Sabbath Law remained virtually unaltered until 1881. At that time the statute received a completely new format (which it still retains) and the previous sections which were embodied in the Penal Code ³ were repealed (L.1881, Penal Code, tit. X, § 259 Et seq.). Under this revised scheme the main categories of Sabbath breaking were divided into separate sections, with two important changes. First, the ban on Sunday traveling was eliminated entirely. Second, the prohibition against servile labor was refined by the inclusion of a separate exception for trades, manufactures and mechanical employments (Penal Code of 1881, § 266). That the new section banning trades, manufacturing and mechanical employments on Sundays was actually a parsing of the category prohibiting servile labor is apparent by the subsequent amendment excepting works of necessity provided they did not interfere with the repose of the community (L.1883, ch. 358, § 3, amdg. § 266 of the Penal Code of 1881). As previously noted this saving provision was only applicable to the labor prohibition and not the public traffic prohibition.

It is also interesting to note that with the 1881 revision the number of exceptions to the mandate against public selling more than doubled. Throughout the previous century the only commodities allowed to be sold were meats, milk and fish provided they were sold before 9:00 a.m. However, in addition to these foods the revised statute permitted, at any time of the day, the sale of food to be eaten on the premises where sold, drugs, medicines and surgical applicances (Penal Code of 1881, § 267). This marked the beginning of the proliferation of exceptions to the public selling prohibition which has since overwhelmed the statute.

After the turn of the century the Sabbath Laws were recodified in a new penal law (L.1909, Penal Law, art. 192, § 2140 Et seq.). Those sections coming under the general heading of laboring or working were essentially unchanged. (Compare Penal Code of 1881, §§ 263, 266, with Penal Law of 1909, §§ 2143, 2146, respectively.) The provision dealing with public sports was relaxed considerably to reflect the change in the society. (Compare Penal Code of 1881, § 265, with Penal Law of 1909, § 2145.) Notably the section pertaining to public traffic was subjected to the further multiplication of exceptions. (Compare Penal Code of 1881, § 267, with Penal Law of 1909, § 2147.)

Aside from the public sports section which has been broadened substantially but is no longer relevant to our discussion, the remaining provisions present an interesting contrast. While the prohibitions dealing with laboring (presently General Business Law, §§ 5, 8) have experienced minimal change in the last century, the public traffic section (presently General Business Law, § 9) has been riddled with alterations. ⁴ This process of engrafting exceptions to the ban against Sunday selling gathered momentum and by 1967, when the statute was removed from the Penal Law and re-enacted as part of the General Business Law, the three original exceptions had swollen to several dozen and generated a corresponding increase in litigation. And certainly the recent amendments do not indicate that the stream of exceptions has abated. (See, e.g., L.1975, ch. 759, § 1, permitting the public auction of thoroughbred, standardbred and quarter horse racehorses; L.1973, ch. 995, § 1, permitting the sale of items of art and antiques.) The appellant's challenge to this section therefore is based on the resultant inconsistency, confusion and lack of perceptible scheme generated by this...