People v. Carillo

• Citation: 42 Misc.2d 74,246 N.Y.S.2d 692
• Parties: The PEOPLE of the State of New York, Respondent, v. Frank CARILLO, Appellant.
• Decision Date: 04 February 1964
• Court: New York Supreme Court — Appellate Term

Page 692

246 N.Y.S.2d 692

42 Misc.2d 74

The PEOPLE of the State of New York, Respondent, v. Frank CARILLO, Appellant.

Supreme Court, Appellate Term, Second Department.

Feb. 4, 1964.

Casey, Lane & Mittendorf, New York City, Robert W. Sweet, Robert M. Schuchman, New York City, of counsel, for defendant-appellant.

Leo A. Larkin, Corporation Counsel, Seymour B. Quel, John A. Murray, New York City, of counsel, for respondents.

Davis, Polk, Wardwell, Sunderland & Kiendl, New York City, Lawrence E. Walsh, Richard E. Nolan, T. Richard Brown, New York City, of counsel, for E. F. MacDonald Stamp Co., Gold Bond Stamp Co. of New York, Stop and Save Trading Stamp Corporation, Merchants Green Trading Stamp Co., Consumers Profit Sharing Co. and Trading Stamp Institute of America, Inc., amici curiae.

Herbert H. Pensig, Frederick Siegmund, Brooklyn, of counsel, on the brief, for The Gasoline Merchants of Brooklyn, Inc., amici curiae.

Before HART, PETTE, and GROAT, JJ.

HART, Justice.

The local law (§ B36-103.0, New York City Administrative Code) for the alleged violation of which the defendant was convicted in the court below provides: (a) that it shall be unlawful to sell or offer to sell at retail any gasoline unless the seller keeps continuously posted on the individual pumps signs not less than seven inches in height and eight inches in width nor larger than twelve inches in height and twelve inches in width clearly indicating the selling price per gallon, together with the name or trade mark and grade or quality classification of the gasoline, and

'c. No sign or placard stating or referring directly or indirectly to the price or prices of gasoline other than such signs or placards as hereinabove provided shall be posted or maintained on, at, near or about the premises on which said gasoline is sold or offered for sale.' (Emphasis supplied.)

The conviction was bottomed on the testimony of an inspector of the Department of Markets that on October 8, 1962 he purchased a dollar's worth of high test gasoline from defendant at his gas station at the posted price and in addition received ten S & H Green Stamps, a collector's book and a catalogue for redemption in merchandise which sets forth the amount of books required for specific articles. Each trading stamp, in addition to the legend 'S & H Green Stamps,' bore the notation 'Value 1 mill.' (Actually, the value of the stamp is greater since, as brought out on defendant's case, a book of 1200 stamps has an 'average' value of $3.00.) In addition, the inspector observed on the premises five signs of various sizes, some of which were two feet by two feet, and one three feet by two feet, all of which bore the legend 'S & H Green Stamps'.

The decision in the court below was predicated on a finding that the signs referred 'directly or indirectly to the price charged.' Defendant on appeal urges that this determination is based on an invalid and strained construction of the provisions of the Administrative Code which was not within the intent of the legislative body which enacted it.

In construing the statute, the court must be guided by certain canons of interpretation to arrive at the legislative intent which is the primary consideration (Gilmore v. City of Utica, 121 N.Y. 561, 568, 24 N.E.2d 1009, 1011; Hudson Iron Co. v. Alger, 54 N.Y. 173, 175). In determining the legislative intent, we must be guided by certain precepts. The first is to ascertain the purpose for which the statute was enacted. As stated by Chancellor Kent, 'the legislative intent with which the statutes are enacted is to be collected from the context, from the occasion and necessity of the law, from the mischief felt, and the objects and the remedy in view.' (1 Kent's Commentaries 462.) Courts 'do not merely read the bare end product of the legislative labors,' but instead 'read the statute in the light of the state of facts which were found by the Legislature, and which prompted the enactment.' (St. Nicholas Cathedral of Russian Orthodox Church in North America v. Kedroff, 302 N.Y. 1, 31, 96 N.E.2d 56.) '* * * statutes directed against known and stated evils, are not to be stretched to cover situations having no real or reasonable relation to those evils.' (Metropolitan Life Insurance Company v. Durkin, 301 N.Y. 376, 381, 93 N.E.2d 897, 899.)

A resort to the legislative history preceding enactment sheds light on the purpose of the City Council in enacting the subject provision of the Administrative Code. The bill as originally enacted in 1939 provided, inter alia (Section B36-108.0):

'(b) It shall be unlawful to sell or offer for sale at retail any petroleum products at a price or prices other than the selling price or prices per unit of sale as posted in accordance with the provisions of subdivision a hereof, or to give or allow or offer to give or allow, in connection with such sale or offer for sale, any article of value or any concession whatsoever, whether in the form of rebate, premium, combination offer, discount, lottery or game of chance, or in any other manner.' (Emphasis supplied.)

This bill was vetoed by Mayor LaGuardia in March 1939 primarily for the reason that it 'might well be used as a vehicle for price fixing in retail sales * * *. I do not believe that even indirectly it is proper for any agency of municipal government to bring about the regulation of prices * * *.'

Thereafter, on August 10, 1939, a new bill was transmitted to the Mayor and approved by him. The provision prescribing the giving of allowances or rebates or any article of value was eliminated and as enacted the local law simply required the posting of prices on signs of specified sizes on the pumps (B36-101.0) and provided (b) that no sign stating the price or prices of gasoline other than as hereinabove provided shall be * * * maintained on the premises on which the said gasoline is sold or offered for sale. The purpose of the legislation was clearly to prevent a fraud on the consuming public by confusing and misleading signs. It was on this basis that the constitutionality of the law was upheld in People v. Arlen Service Stations, Incorporated, 284 N.Y. 340, 31 N.E.2d 184, the court stating that it found the law valid since it 'was designed to prevent fraud' (284 N.Y. p. 343, 31 N.E.2d p. 185) and that '[a] business, however honest in itself, may be the subject of governmental regulation if it may become a medium of fraud.' (284 N.Y. p. 343, 31 N.E.2d p. 185) (Emphasis supplied). The court concluded that the legislative body of the City properly exercised its police power to prevent fraud by misleading signs. The holding was not premised on the right to regulate competition or fix prices.

As pointed out in People v. Sav-4-On Gallon, Incorporated, 204 Misc. 708, 711, 125 N.Y.S.2d 5, 7-8, the 1939 enactment was found inadequate to cope with the situation disclosed by the facts in People v. Pearl (173 Misc. 467, 17 N.Y.S.2d 825 (1940), App. Part of Spec. Sess.) wherein the court reversed the conviction because the signs in that case were not on the premises but were maintained on an adjacent fence. Subsequent to the holding in Pearl, and on June 17, 1941, the Committee on General Welfare of the City Council reported on amendments contained in a proposed bill which had been referred to it and recommended its adoption, stating 'That the original law enacted to correct certain evils in this business met with general public approval. Unfortunately, however, unscrupulous dealers thereafter adopted devious means to circumvent the provisions. This bill will further protect and clarify the situation, and we recommend its enactment into law.' Accordingly, the new local law, as adopted and approved in 1941 and which is the provision of the Administrative Code involved on this appeal, provided that no sign or placard stating or referring directly or indirectly to the price or prices of gasoline (other than those of the limited size required to be posted on the pumps) was to be maintained 'on, at, near or about the premises' on which gasoline is sold or offered for sale. Clearly, this does not reflect an intention to enact a provision which may be equated with the provision contained in the first bill vetoed by the Mayor so as to proscribe the offer to give or allow discounts, premiums or anything of value. As stated in People v. Fromer, Mag.Ct., 231 N.Y.S.2d 581, 582:

'When the statute was amended in 1941 to include signs 'referring directly or indirectly to' the price of gasoline, the purpose of the amendment was to prevent every kind of fraud and deception.'

In our opinion there was no intention on the part of the City Council to fix prices or prohibit signs relating to the giving of premiums or bonuses.

Another canon of statutory interpretation which sustains this conclusion is that a penal statute must be strictly construed. The People, however, urge that this precept is not applicable by reason of the general provisions of Administrative Code, § 982-2.0 entitled 'Construction' which provides that '[t]his act shall be construed liberally * * *.' This provision may be compared with the more comprehensive 'General Provisions' of section 21 of the Penal Law, which reads:

'The rule that a penal statute is to be strictly construed does not apply to this chapter or any of the provisions thereof, but all such provisions must be construed according to the fair import of their terms, to promote justice and effect the objects of the law.' (Emphasis supplied.)

In commenting on section 21 of the Penal Law, section 271 of Statutes (McKinney's, Book 1) states:

'General rule requires strict construction

'As a general rule, penal statutes are strictly construed against the party seeking their enforcement and in favor of the person being proceeded against. It has been said, moreover, that this rule applies to the Penal Law, although section 21 thereof expressly provides the contrary. In any event it is well settled...