People v. Gill

• Decision Date: 08 October 1954
• Citation: 206 Misc. 585
• Parties: The People of the State of New York, Plaintiff,<BR>v.<BR>Louis T. Gill, Defendant.
• Court: New York Court of Appeals Court of Appeals

206 Misc. 585

The People of the State of New York, Plaintiff,

v.Louis T. Gill, Defendant.

October 8, 1954.

Joseph T. McDonough for plaintiff.

John A. Dwyer for defendant.

Direnzo & Martoccia, amici curiæ.

DEL GIORNO, M.

This action was tried before me sitting as a Court of Special Sessions. By stipulation on the record the parties agreed that this court's decision would be extended to a number of similar cases, also represented by the same attorney.

After the case was tried a request was made to the court by Direnzo & Martoccia, Esqs., for permission to file a memorandum of law, as friends of the court, on behalf of a client whose business is similar to the defendants. The court gladly accepted the proffered aid. All the parties have submitted splendid and helpful briefs. The facts are very simple. The defendant is secretary of the corporation owning a commercial auto laundry. He is charged with permitting his employees to wash, under his supervision, three automobiles on a Sunday in violation of section 2143 of the Penal Law.

The charge is not contested but the defendant claims that washing cars on Sunday is labor of necessity in this age of automobiles.

Section 2143 of the Penal Law, which is the law in question reads: "Labor prohibited on Sunday. All labor on Sunday is prohibited, excepting the works of necessity and charity. In works of necessity or charity is included whatever is needful during the day for the good order, health or comfort of the community."

In their brief the People contend that the language of the statute is clear and concise; that the evident object of section 2143 is to prevent the day from being employed in servile work. (Landers v. Staten Is. R. R. Co., 13 Abb. Prac. [N. S.] 338.)

The People further assert that car washing as a business on a Sunday is not a work of charity or necessity. They contend that while a clean windshield and clear-view glass is essential to safe driving it is not necessary that the entire car be washed in order to guarantee safety of operation. By inference the People contend that that chore can be easily performed by the driver.

The People further argue that in order for the defendant to come within the exception of "necessity" under section 2143, the necessity must be that of the one who labors and cannot be transferred to anyone else. They state that while the operator may clean his windshield as a necessity, he may not transfer that operation to the auto laundry to do it for him for a fee. That would be a purely business transaction, and hence a violation of the statute. The People refer to a series of cases, to support their contention that the question of car washing as a business on a Sunday has already been adjudicated by the appellate courts which have sustained convictions under the statute. (People v. Gowa, 275 App. Div. 686; People v. Singer, 278 App. Div. 714.) The latter was a unanimous affirmance by the Appellate Division, and permission to appeal to the Court of Appeals was denied by Judge FULD on May 11, 1951. The People also refer to an opinion of the Attorney-General (51 N. Y. St. Dept. Rep. 239), in which the Attorney-General declared in the year 1934 that car washing in a commercial auto laundry on Sunday constituted a violation of the Sabbath. The People also refer to the case of People v. Schelberg (204 Misc. 733), in which case a distinguished colleague of the court, Magistrate MAHONEY, also held in favor of the People.

For his part the defendant contends that prior decisions holding that car washing on Sunday is not a necessity were based upon opinion and the lack of information and should not be followed; thus the defendant says that the Gowa and Singer cases (supra) were based solely upon opinion influenced by a puritanical concept of Sunday observance.

In addition, the defendant affirms that car washing is a health aid and public service — it involves the removal of all dust, dirt, filth, oil and grease from the body of the car, which is trapped and removed by the laundry owner and does not find its way into the city sewers, thus lessening the burden of the sanitation department, a public agency.

In addition thereto the defendant contends that car washing is an aid to safety in that the said auto laundries in winter, in the act of washing cars, remove all snow, ice-embedded fragments of tire chains and other pieces of metal, thereby removing one of the many hazards of winter driving.

The defendant makes a final point when he asserts that in its control of bus and taxi franchises the city of New York requires that such be kept clean, sanitary and in good mechanical condition at all times, particularly the interior thereof. (Rules & Regulations of N. Y. City Agencies, ch. 16, Police Dept.; ch. 26-A, Dept. of Traffic, art. 1, § 1, subd. 15.)

The final conclusion drawn by the defendant is that the Sunday laws are inconsistent because different fines and punishments are provided for violations committed by different trades or businesses.

The attorneys appearing herein amici curie, on behalf of D. and G. Service Station, located at 33-34 21st Street, Astoria, while agreeing generally with the defendant's position, for their part advanced the argument that section 2143 is not violated by washing cars on Sunday since car washing is not specifically prohibited by the section and, by inference, they contend that what is not prohibited specifically may not be prohibited at all.

Thus, they assert that the mere fact that car washing on Sunday is not eo nomine listed as a permissive act in the statute, said statute does not necessarily exclude or prohibit it.

The court is of the opinion that the parties hereto have raised factual points which were not advanced in cases previously reported. Only for that reason does this court feel justified in writing its own opinion rather than rejecting or accepting previous decisions in making its determination herein.

The court believes that without any doubt section 2143 of the Penal Law derives from the words of the Old Testament which have made Sunday acceptable by our civilization as a precept of conduct and a day of meditation and rest from the necessary labors and pursuit of gains by each individual. In chapter 2 of Genesis, the Bible says: "And on the seventh day God ended his work which he had made; and he rested on the seventh day from all his work which he had made. And God blessed the seventh day, and sanctified it".

The defendant, while not denying the necessity and appropriateness of such a law contends that the law has been liberalized in many ways by our State Legislature, such as permitting baseball on Sundays. The court can add that movie houses are opened, concerts are given, etc., which may be considered in derogation of the law, but in the court's opinion these, in one way or another come within the meaning of good order, health, or comfort, and therefore, in conjunction with such intent of the law the labor performed by those engaged therein is one of necessity. The legislative trend has been to afford in a positive way to each individual, and especially the worker, a day away from the demands of the employer, in furtherance of the Biblical injunction that the seventh day belongs to the individual to use it to relax, meditate and...