People v. Cook

• Decision Date: 01 May 1974
• Citation: 34 N.Y.2d 100,356 N.Y.S.2d 259,312 N.E.2d 452
• Parties: , 312 N.E.2d 452 The PEOPLE of the State of New York, Respondent, v. David COOK, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 259

356 N.Y.S.2d 259

34 N.Y.2d 100, 312 N.E.2d 452

The PEOPLE of the State of New York, Respondent, v. David COOK, Appellant.

Court of Appeals of New York.

May 1, 1974.

Lawrence E. Walsh, Philip C. Potter, Jr., Guy Miller Struve and Douglas M. Galin, New York City, for appellant.

Norman Redlich, Corp. Counsel, New York City (Samuel J. Warms, New York City, of counsel), for respondent.

Malcolm L. Fleischer, New York City, for Retail Tobacco Dealers of America, Inc., amicus curiae.

RABIN, Judge.

The primary issue on this appeal is whether New York City has the power to regulate retail prices of cigarettes so as to require retailers to maintain a difference in price between brands that have a higher tar and nicotine content and those which have a lower tar and nicotine content.

New York City, pursuant to a State enabling statute, placed a tax on the sale of cigarettes the amount of which is based on the tar and nicotine content of the cigarettes sold. The New York City Tax Regulations require a difference in the retail price of cigarettes at least equivalent to the amount of tax attributable to their tar and nicotine content.

Defendant David Cook (Cook) is the manager of a discount drugstore in New York City. On January 11, 1972 an investigator for the New York City Finance Administration simultaneously purchased a pack of Winston, a 'high' tar and nicotine cigarette requiring a 'tar' tax of four cents, and a pack of True, a 'low' tar and nicotine cigarette requiring no 'tar' tax. The price charged for each was 50 cents. On the basis of sale at these prices, Cook was convicted of violating the Administrative Code of the City of New York (§ D46--18.0, subd. f), and sentenced to pay a $10 fine.

Cook admitted to the investigator that he did not differentiate on the basis of tar and nicotine content in pricing the various brands of cigarettes stating it was 'virtually impossible'. He argues, in appealing his conviction, that the price-differential requirement imposed by the city is illegal for five separate reasons:

(1) the city does not have the power to impose the price differential; neither the local police power nor the State enabling statute authorizes it;

(2) the price differential is unconstitutional in that it violates the constitutional guarantee of due process because its pricing requirements are too vague;

(3) the price differential is unconstitutional in that it violates the equal protection guarantee by affording 'special treatment' to operators of vending machines;

(4) the price differential is unconstitutional in that it is 'overbroad' (5) the price differential is invalid because the Federal Government has pre-empted the field.

We find these arguments to be without merit.

A. THE CITY HAS THE POWER TO ENACT A PRICE DIFFERENTIAL

Since the State has the authority under its police power to properly enact a price differential (see Nebbia v. New York, 291 U.S. 502, 524--525, 531--532, 54 S.Ct. 505, 78 L.Ed. 940), the question is whether the State has, in any way whatsoever, authorized the city to enact such regulations. In the present case, such authorization must be found, if at all, in (1) the police power derived from constitutional, statutory, and charter provisions granting home rule to cities, or (2) the State enabling legislation concerning the cigarette tax itself.

1. The City Police Power

The 'home rule' provision of the New York State Constitution provides in pertinent part as follows: '(E)very local government shall have power to adopt and amend local laws not inconsistent with the provisions of this constitution or any general law relating to the following subjects, whether or not they relate to the property, affairs or government of such local government, except to the extent that the legislature shall restrict the adoption of such a local law relating to other than the property, affairs or government of such local government: * * * (10) The government, protection, order, conduct, safety, health and well-being of persons or property therein.' (N.Y.Const., Const., art. IX, § 2, subd. (c), (ii), (10).)

The Municipal Home Rule Law reiterates this grant of power over matters relating to the health and well-being of inhabitants of the city and expressly adds, 'This provision shall include but not be limited to the power to adopt local laws providing for the regulation or licensing of occupations or businesses'. (Municipal Home Rule Law, § 10, subd. 1, (ii), a. (12) Consol.Laws, c. 36--a.)

The police power is also authorized by subdivision a of section 27 of the New York City Charter, which provides in pertinent part that the city council 'shall have power to adopt local laws as to it may seem meet, which are not inconsistent with the provisions of this charter or with the constitution or laws of the United States or of this state * * * for the preservation of the public health, comfort, peace and prosperity of the city and its inhabitants'.

The above provisions amply demonstrate that New York City has been granted the exercise of the police power to promote health by the sovereign people acting through the State Constitution and the State Legislature (see Good Humor Corp. v. City of New York, 290 N.Y. 312, 49 N.E.2d 153). Assuming that an enactment is properly related to the power to promote health, this grant of authority has only two limitations placed upon it: (1) the city may not exercise its police power by adopting a local law which is inconsistent with constitutional or other general law; and (2) the city may not exercise its police power over health to the extent that the Legislature shall restrict the adoption of such local law (N.Y.Const., art. IX, § 2; Municipal Home Rule Law, § 10, subd 1, (ii)). There is no contention here that the Legislature has restricted the city's exercise of its general police power. For reasons which follow, we conclude that the purpose of the price differential is properly related to health, that the means employed is within the police power, and that the exercise of the police power in the present case is not inconsistent with any provision of the Constitution or other general law.

That the challenged price differential was enacted for the purpose of promoting public health is conceded by both parties and the regulations so state (see Cigarette Tax Law Regulations of New York City Finance Administrator, art. 2--A). Specifically, its purpose is to improve the public health by reducing the quantity of high tar and nicotine cigarettes smokedby the public. The link between smoking cigarettes with a high tar and nicotine content and poor health is widely and officially acknowledged. The means utilized to accomplish the health purpose, the challenged price differential, is reasonably related to the goal of reducing consumption of the more harmful high tar and nicotine brands, since it is intended to force a cigarette consumer to pay a higher retail price for the harmful cigarettes. It was not unreasonable for the city council to conclude that the higher prices required of the more harmful cigarettes would induce the cigarette consumer to switch to a less harmful variety, or at least smoke less of the more harmful brand. Accordingly, the price differential based on tar and nicotine content is clearly within the police power over matters pertaining to health. This conclusion is reinforced by the fact that cigarette tobacco is now recognized as a substance dangerous to public health and, as in the case of alcohol, this justifies greater legislative control (cf. 48 C.J.S. Intoxicating Liquors §§ 20, 33).

Since the State itself could properly require a price differential under its police power to regulate matters concerning health; since the State has granted a similar police power to the city; and since it is clear that the price differential has a reasonable relation to health; the conclusion follows that, in the absence of other valid objections, the price differential is a proper exercise of the police power by the city. This conclusion is in no way vitiated by the fact that the price differential undeniably regulates prices to a certain degree. ¹ '(P)rice regulation is just another form of regulation to be gauged by its relation to the common weal.' (7 McQuillin, Municipal Corporations (3d ed., rev. 1968), § 24.397, at p. 357.) Municipalities in colonial boroughs fixed the price of certain foods (§ 24.397); and in modern times, though authority is sparse, the validity of price regulation by municipalities has been determined by the relation of the commodity or service controlled to a governmental interest which the municipality has the power to advance. (See 7 McQuillin, Municipal Corporations, § 24.397, cf. § 24.670; see, also, Pomeranz v. City of New York, 1 Misc.2d 486, 151 N.Y.S.2d 789, affd. 7 A.D.2d 752, 181 N.Y.S.2d 766 (changes in parking garage prices cannot be effective for at least 60 days after posting of old prices).)

While we have been referred to no case, in this jurisdiction or another, which is precisely on point, the leading New York cases interpreting the police power of municipalities support the validity of municipal price regulation in certain instances. In Good Humor Corp. v. City of New York, 290 N.Y. 312, 49 N.E.2d 153, Supra, this court found invalid an 'anti-peddler' ordinance passed under section 27 of the New York City Charter (the general police power) and a section of the City Home Rule Law (not here applicable). In discussing the Legislature's grant of power to the city, the court stated (pp. 316--317, 49 N.E.2d p. 155): 'Under these statutes the city has broad power to regulate the use of the city streets (City Home Rule Law) and to provide by local law for * * * the preservation and promotion of the health, safety and general welfare of the inhabitants. Local laws are valid which have a substantial relation to matters within the field where legislative power is vested in the local legislative...