People v. Bunis
| Decision Date | 05 January 1961 |
| Citation | 210 N.Y.S.2d 505,172 N.E.2d 273,9 N.Y.2d 1 |
| Parties | , 172 N.E.2d 273 PEOPLE of the State of New York, Respondent, v. Nathan J. BUNIS, Appellant. |
| Court | New York Court of Appeals Court of Appeals |
Herald P. Fahringer, Jr., Buffalo, for appellant.
Carman F. Ball, Dist. Atty., Buffalo (Leonard F. Walentynowicz, Buffalo, of counsel), for respondent.
Charged with knowingly selling magazines from which the cover or title page had been removed, the defendant, owner of a bookstore in Buffalo, challenged the statute, section 436-d of the Penal Law, Consol Laws, c. 40, on which the charge was based, as unconstitutional. Enacted in 1956 'to prevent the resale of periodicals once they had been recalled by the publisher' (Memorandum of Assemblyman Steingut, N.Y.Legis.Annual, 1956, p. 25), the section provides, insofar as relevant, that 'Any person who knowingly sells, offers or exposes for sale, (except in bulk as waste paper) any newspaper, magazine, periodical or other publication * * * from which the cover or title page has been removed, or from which the title, trade name, trade mark or other identification mark has been removed or obliterated, is guilty of a misdemeanor.'
A word of explanation as to the legislative background is necessary. Publishers of a number of magazines sell their product to national distributors who in turn sell them to regional wholesalers and these latter sell them to local retailers. Each of these sales is made on a 'sale or return' basis, it being understood that magazines which are not sold may be returns for full credit. To receive credit for a return, the retailer sends back the magazine itself but, at the wholesale level, to save transportation costs, returns are effected by sending either the cover of the magazine or that portion of it which bears its title. It is, of course, expected that, once the cover has been returned for credit, the coverless magazines will be taken off the market or rendered unsalable as magazines. However, an illicit trade apparently developed: instead of destroying the 'returned' periodicals or getting rid of them as waste, wholesalers, or wastepaper dealers who acquired them as waste, sold them to second-hand book dealers who, though aware of the trade practice to which we have referred, retailed them to the public at considerably reduced prices.
Whether the Legislature would have had the competency, in the exercise of the police power, to pass a law proscribing the illicit traffic in magazines 'returned' for credit, we need not now consider or decide, for the simple fact is that the statute actually enacted, section 436-d, goes far beyond any such purpose. By absolutely forbidding any person from selling any coverless magazine, regardless of the circumstances under which, or the reasons for which, the cover may have been removed, the Legislature has prohibited unquestionably legitimate sales and rendered criminal conduct that carries not the slightest taint of corruption or impropriety. This it was not privileged to do; its enactment is arbitrary and violative of due process. See Weaver v. Palmer Bros. Co., 270 U.S. 402, 46 S.Ct. 320, 70 L.Ed. 654; Defiance Milk Prods. Co. v. Du Mond, 309 N.Y. 537, 132 N.E.2d 829; People v. Estreich, 297 N.Y. 910, 79 N.E.2d 742; People v. Kuc, 272 N.Y. 72, 4 N.E.2d 939, 107 A.L.R. 1272; People v. Gillson, 109 N.Y. 389, 17 N.E. 343; Matter of Jacobs, 98 N.Y. 98.
The police power is 'very broad and comprehensive' and in its exercise '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'. Matter of Jacobs, 98 N.Y. 98, 108, supra. But, in order for an exercise of the police power to be valid, there must be 'some fair, just, and reasonable connection' between it and the promotion of the health, comfort, safety and welfare of society. People v. Gillson, 109 N.Y. 389, 401, 17 N.E. 343, 347, supra. 'The property of a citizen * * * may not be taken from him without rhyme or reason' (Defiance Milk Prods. Co. v. Du Mond, 309 N.Y. 537, 541, 132 N.E.2d 829, 830, supra); a statute may not infringe upon the right of an individual 'to pursue a lawful calling in a proper manner, or * * * deprive a person of his property, by curtailing his power of sale; * * * unless this infringement and deprivation are reasonably necessary for the common welfare'. People v. Gillson, 109 N.Y. 389, 400, 17 N.E. 343, 346, supra.
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