People v. Dunford

• Decision Date: 17 December 1912
• Citation: 100 N.E. 433,207 N.Y. 17
• Parties: PEOPLE v. DUNFORD.
• Court: New York Court of Appeals Court of Appeals

207 N.Y. 17

100 N.E. 433

PEOPLE

v.DUNFORD.

Court of Appeals of New York.

Dec. 17, 1912.

Appeal from Supreme Court, Appellate Division, Second Department.

Thomas Dunford was convicted of engaging in public traffic on Sunday, and from a judgment of the Appellate Division (146 App. Div. 923,131 N. Y. Supp. 1134) affirming the conviction he appeals. Reversed, and defendant discharged.

George R. Bristor, of New York City, for appellant.

Albert C. Fach, Dist. Atty., of Stapleton (Frank H. Innes, of New Brighton, of counsel), for respondent.

GRAY, J.

[1] The defendant was convicted in the Court of Special Sessions of having violated section 2147 of the Penal Law (Cons. Law, c. 40), and the conviction has been affirmed by the Appellate Division in the Second Department. The defendant now appeals to this court, and claims that he was not shown to have violated the statute. Section 2147 prohibits ‘public traffic on Sunday,’ and the specific act with which the defendant was charged was that he ‘offered certain real estate property for sale’ to the complainant, a detective sergeant, on Sunday, December [207 N.Y. 19]18, 1910. According to the testimony of the complainant, he met the defendant upon a railroad train, which was running between the stations of St. George and Tottenville on Staten Island. The defendant accosted him, and showed him a map of certain lots of land. The complainant asked the price of a corner lot, and, upon being informed, stated that he did not think he would buy it; that he would think the matter over and call during the week. The evidence permits it to be understood that the train carried a number of persons to a point where land had been mapped out into lots for selling purposes; but the only overt act, which was shown on the defendant's part, in the way of a business transaction, was his offering of lots of land for sale to the complainant. Section 2147 is contained in the article of the Penal Law relating to the Sabbath. Section 2140 prohibits the doing on the Sabbath day of certain thereinafter specified acts, and succeeding sections define Sabbath breaking, the punishment therefor, and the acts prohibited. Section 2147 has for its caption ‘Public Traffic on Sunday.’ It reads as follows: ‘All manner of public selling or offering for sale of any property upon Sunday is prohibited, except that articles of food may be sold and supplied at any time before ten o'clock in the morning, and except also that meals may be sold and eaten on the premises where sold or served elsewhere by caterers; and prepared tobacco, milk, ice and soda water in places other than where spirituous or malt liquors or wines are kept or offered for sale, and fruit, flowers, confectionery, newspapers, drugs, medicines and surgical appliances may be sold in a quiet and orderly manner at any time of the day. The provisions of this section, however, shall not be construed to allow or permit the public sale or exposing for sale or delivery of uncooked flesh foods, or meats, fresh or salt, at any hour or time of the day.’

[2] The question for our determination is whether the act of the defendant came within the prohibition of that section.That the Legislature has the authority to enact laws regulating the observance of the Sabbath day and to prevent its desecration is not, and cannot well be, disputed. The day is set apart by the statute for repose and for religious observance, objects which pertain to the physical and moral well-being of the community. As to the acts which should be prohibited as disturbances, or profanations, of the Sabbath day, the Legislature is the sole judge. See Lindenmuller v. People, 33 Barb. 548;Neuendorff v. Duryea, 69 N. Y. 557, at page 563,25 Am. Rep. 235;People v. Moses, 140 N. Y. 214, 35 N. E. 499. Does a proper construction of the language of section 2147 comprehend the act with which the defendant was charged? Did that constitute ‘public traffic,’ and do the words ‘any property’ refer to real estate, as well as to commodities, or articles of personal property? Nothing in the reading of the section would suggest to the ordinary mind that the ‘public traffic’ to be prohibited related to an effort to sell real estate, such as the defendant was proved to have made.

[4] The word ‘traffic’ has the popular meaning of an exchange, or a passing, of goods or commodities, for an equivalent in goods or money. See Webster's Dictionary, and 28 Am. & Eng. Ency. of Law (2d Ed.) p. 443. The language of the section seems to point to the public exposure of acticles for sale in the streets, in stores, or shops as the thing to be prevented. When we consider the provisions of section 2149, which impose, in addition to the punishment of fine, or imprisonment, imposed by section 2142 for Sabbath breaking, the penalty of a forfeiture of ‘all property and commodities exposed for sale,’ the idea of real...