People v. Faxlanger

• Decision Date: 29 December 1955
• Citation: 147 N.Y.S.2d 595,1 A.D.2d 92
• Parties: The PEOPLE of the State of New York, Respondent, v. Walter F. FAXLANGER, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 595

147 N.Y.S.2d 595

1 A.D.2d 92

The PEOPLE of the State of New York, Respondent, v. Walter F. FAXLANGER, Appellant.

Supreme Court, Appellate Division, Fourth Department.

Dec. 29, 1955.

John F. Dwyer, Dist. Atty., Buffalo (Leonard Finkelstein, Buffalo, of counsel), for respondent.

Nathaniel A. Barrell, Buffalo, for appellant.

Jacob K. Javits, Atty. Gen. (Robert W. Bush and James O. Moore, Jr., Albany, of counsel), for intervenor-respondent.

Before McCURN, P. J., and KIMBALL, WHEELER, VAN DUSER and WILLIAMS, JJ.

WHEELER, Justice.

Defendant-appellant has been convicted under an indictment charging him with violating Section 283-a of the Tax Law, Laws of 1932, Chap. 330, § 2, as amended, by unlawfully operating a gasoline filling station without procuring a license from the Department of Taxation and Finance.

The facts upon which the conviction is based are not in dispute. The defendant is the owner of a retail gasoline station, which he has operated for about twenty years without a license as required by Section 283-a of the Tax Law. There has been no refusal to grant him a license, nor has he ever applied for one.

The sole question before us on this appeal relates to the constitutionality of the subject statute, which is challenged by the defendant upon the ground that it violates the due process clauses of the Federal Constitution Fourteenth Amendment, § 1, and the Constitution of New York, Article 1, § 6.

The statute in question, 283-a, provides, in substance, that no filling station shall be operated without first procuring a license from the Department of Taxation and Finance; that such a license 'shall be issued' upon application made upon forms prescribed by the Tax Commission, and on payment of two dollars for each annual license.

Defendant's position is based upon the fundamental premise that he is entitled to pursue his lawful occupation without governmental interference, in accordance with constitutional guarantees. The infirmity of his position stems from his refusal to recognize well-established constitutional principles, that his rights are not absolute, but are always subject to the proper exercise of the state's police power for the public good. But defendant insists that the operation of a gasoline filling station is not affected with or related to a public interest, and, therefore, this particular statute provides for an improper exercise of the police power.

We find it difficult to agree with this contention. The phrase 'affected with a public interest' has been construed to mean 'no more than that an industry, for adequate reason, is subject to control for the public good.' Nebbia v. New York, 291 U.S. 502, 536, 54 S.Ct. 505, 515, 78 L.Ed. 940. Restriction of some degree of the activities of the individual is always implicit in police power, however exercised. People v Arlen Service Stations, 284 N.Y. 340, 345, 31 N.E.2d 184, 186. The question in all 'due process' cases is the balance between the exercise of police power and the interference with the constitutional rights of the individual. It is upon this principle that the courts have enunciated the rule that the exercise of the police power may not be unreasonable or arbitrary, and must bear a substantial relation to the public health, safety, morals or general welfare. People ex rel. Armstrong v. Warden of City Prison of City of New York, 183 N.Y. 223, 226, 76 N.E. 11, 12, 2 L.R.A.,N.S., 859; People v. Luhrs, 195 N.Y. 377, 89 N.E. 171, 25 L.R.A.,N.S., 473; People v. Arlen Service Stations, supra; People v. Perretta, 253 N.Y. 305, 171 N.E. 72, 84 A.L.R. 636; Mid-States Frgt. Lines v. Bates, 200 Misc. 885, 111 N.Y.S.2d 568, affirmed 279 App.Div. 451, 111 N.Y.S.2d 578, affirmed 304 N.Y. 700, 107 N.E.2d 603, reargument denied 304 N.Y. 788, 109 N.E.2d 82, certiorari denied 345 U.S. 908, 73 S.Ct. 648, 97 L.Ed. 1344; W. H. H. Chamberlin, Inc., v. Andrews, 271 N.Y. 1, 2 N.E.2d 22, 106 A.L.R. 1519, affirmed 299 U.S. 515, 57 S.Ct. 122, 81 L.Ed. 380; Biddles, Inc., v. Enright, 239 N.Y. 354, 363, 146 N.E. 625, 628, 39 A.L.R. 766.

In the Biddles case it was stated:

"* * * Any trade, calling, or occupation may be reasonably regulated if 'the general nature of the business is such that unless regulated many persons may be exposed to misfortunes against which the Legislature can properly protect them."'

In the instant case we are concerned with two powers of sovereignty, viz., the police power and the state's authority in the exercise of its revenue powers. A gasoline service station necessarily involves the storge and sale to the public of gasoline and oil, which are so highly inflammable and explosive that they increase the danger of fire and are, therefore, related to public safety. It follows that the regulation thereof is well within the settled principles of the police power. Green...