People v. Mann
| Decision Date | 04 May 1982 |
| Citation | 450 N.Y.S.2d 275,113 Misc.2d 980 |
| Parties | PEOPLE of the State of New York, Plaintiff, v. Edmond D. MANN, Defendant. |
| Court | New York District Court |
The defendant, a fifty-two year old disabled war veteran, while in possession of a valid license issued in accordance with General Business Law 32, was charged with a violation of section 1157(c) of the Vehicle and Traffic Law, for selling "hot dogs and other food items" on Route 112 in Brookhaven, a state highway.
The defendant has not denied that such sales were being made from his motor vehicle while it was parked on the shoulder area of Route 112. Rather, he has argued that because he has a veteran's license issued in accordance with sections 32 and 35 of the General Business Law, the prohibition in Vehicle and Traffic Law 1157(c) does not apply to him.
Section 32 provides, in relevant part:
1. Every honorably discharged member of the armed forces of the United States, who is a resident of this state and a veteran of any war, or who shall have served in the armed forces of the United States overseas ... if a resident of the state, shall have the right to hawk, peddle vend and sell goods, wares or merchandise or solicit trade upon the streets and highways within the county of his or her residence, as the case may be ... by procuring a license for that purpose to be issued as herein provided.
The defendant has a license issued in accordance with this section and the People have stipulated that it is authentic. 1
Vehicle and Traffic Law 1157(c) provides: "No person shall occupy any part of a state highway, except in a city or village, in any manner for the purpose of selling or soliciting."
The statutes are in conflict. Vehicle and Traffic Law 1157(c) admits of no exceptions to its coverage while General Business Law 32 does not explicitly take cognizance of section 1157(c).
A basic rule of statutory construction is that "should be given such construction that enables them to be reconciled, and if the court, without violating the established canons of interpretation, can construe two statutes so that they will be in harmony, such construction should be adopted." (McKinney's Statutes, sec. 391.) (Footnotes omitted.) But, in this case that simply cannot be done. Thus, other rules of construction must be considered. One which is applicable here is that "a general statute and a specific statute may be read together, any ambiguity or inconsistency must be resolved in favor of the specific statute." (56 N.Y.Jur.Statutes, sec. 129.)
In referring to "state highways" section 1157(c) is more specific than section 32 which refers to "streets and highways". But, section 32 is more specific in granting a right to a particular class of veterans as opposed to section 1157(c)'s "no person" application. In weighing this double conflict the court concludes that the most specific reference is to a war veteran's right to hawk, peddle, vend and sell.
Section 1157(c) prohibits selling or soliciting on "any part of a state highway". Section 32 permits hawking, peddling, vending and selling on "the streets and highways within the county of ... residence". Only if a state highway were somehow distinguishable from "the streets and highways within the county" would there be no conflict between the statutes. But, the conflict is unavoidable.
Though the Vehicle and Traffic Law does not define "state highway" section 3(1) of the Highway Law does. That section provides, in part: "State highways are those constructed or improved under this chapter at the sole expense of the state ... including the highways heretofore classified or referred to as county highways elsewhere in this chapter...."
The Vehicle and Traffic Law does, however, define "streets" and "highways"; the General Business Law does not. The definitions are identical: "The entire width between the boundary lines of every way publicly maintained when any part thereof is open to the use of the public for purposes of vehicular travel." (Vehicle and Traffic Law 118 and 148.)
In construing statutes a rule regarding definitions is that "definition contained in a particular act will ordinarily have no force in the construction of other laws, or at least does not necessarily govern the construction of the same or similar words appearing in other enactments." (McKinney's Statutes, sec. 75(b).) (Footnotes omitted.) Thus, the definitions cited above cannot be deemed controlling in either case. However, there is no reason to doubt that those definitions should apply. Since "streets and highways" include all streets and highways publicly maintained, "state highways" should be included as well.
The language employed in section 35 of the General Business Law is additional evidence that state highways are not to be excepted from the coverage of section 32. Section 35 is an expansion of the rights provided by section 32 granted to "any honorably discharged member of the armed forces of the United States who is physically disabled as a result of injuries received while in the service of said armed forces and the holder of a license granted pursuant to section thirty-two." The section provides that no local by-law, ordinance or regulation may prevent a disabled veteran, as described above, from hawking or peddling, with a hand driven vehicle in any street, avenue, alley, lane or park of a municipal corporation.
Thus, nothing in the language of section 32 or 35 suggests that their application is to be limited to any particular class of streets and highways.
It is therefore fair to conclude that while sections 1157(c) of the Vehicle and Traffic Law and 35 of the General Business Law refer to the same highways, the specific reference in 1157(c) does not pre-empt the application of section 35.
Further, since a state highway is defined in terms of funding rather than physical characteristics it is not clear why state highways should be excluded from the application of section 32, assuming the purpose of that section is to avoid interference with traffic. If section 1157(c) applied to "controlled access highways", which are defined with reference to physical characteristics, (Highway Law 3(2)) there would be a stronger argument that section 32 would be limited. 2
Thus, neither the language of the statutes, nor their purpose seem to justify limiting the application of section 32.
The second conflict in the language of the two statutes involves the persons to whom they apply. Section 1157(c) states "person shall...." Certainly that language seems to be comprehensive. But section 32 makes specific reference to a particular class of veterans in apparent conflict...
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