S. E. Nichols Herkimer Corp. v. Village of Herkimer
| Decision Date | 19 April 1972 |
| Citation | 38 A.D.2d 456,330 N.Y.S.2d 747 |
| Parties | , 68 Lab.Cas. P 52,815 S. E. NICHOLS HERKIMER CORPORATION, Appellant, v. The VILLAGE OF HERKIMER, New York, et al., Respondents. |
| Court | New York Supreme Court — Appellate Division |
Basloe, Basloe & Gallagher, Herkimer, for appellant (Evalyn G. Basloe, Herkimer, of counsel).
F. Arthur Fagan, Jr., Herkimer, for respondents.
Before MARSH, J.P., and WITMER, MOULE, CARDAMONE and HENRY, JJ.
Section 86 of the General Municipal Law grants the municipalities in the State power to enact '* * * ordinances regulating the nature of commercial and business activities that may be conducted on Memorial day and Independence day and the hours within which * * * business activities may be conducted * * *'
Pursuant to such authority, defendant Village enacted an ordinance on June 7, 1971 which provided in part:
'Section 5--501. It shall be unlawful, in the Village of Herkimer, New York, for any person, firm or corporation to sell or offer for sale any article of property on Memorial Day or Independence Day during the hours of 10:30 A.M. and 3:30 P.M. except as follows:
A. Prepared tobacco, bread, milk, eggs, ice, soda water, confectionary, ice cream, flowers, souvenirs, newspapers, gasoline, oil, tires, drugs, medicine, surgical supplies, fruit and vegetables, farm products, meat, fish and poultry, fishing tackle and bait.
B. Food for on premises consumption, catering services and spirituous or malt liquors or wines, subject to the provisions of the Alcoholic Beverage Control Laws.'
Plaintiff, the operator of a department store in the Village, brought an action for a judgment declaring the ordinance invalid on the grounds it exceeded the power conferred on the Village by Section 86 of the General Municipal Law and that it is unconstitutional. Special Term, holding that the five-hour restriction on sales from 10:30 A.M. to 3:30 P.M. was a valid exercise of the Village's power and that the ordinance had a real and substantial relationship to a proper and orderly observance of the holidays, granted defendants' motion for summary judgment.
In Herkimer Corp. v. Vil. of Herkimer (34 A.D.2d 371, 312 N.Y.S.2d 22), this court considered the validity of a similar ordinance. Under that ordinance, sales were restricted between 9:00 A.M. and 6:00 P.M. which was the generally accepted business day. In a three-two decision, we held that the ordinance was prohibitory in scope and exceeded the powers granted to the Village under Section 86 of the General Municipal Law. Under the present ordinance, there is no restriction on sales from 9:00 A.M. to 10:30 A.M. and from 3:30 P.M. to however long the plaintiff may wish to remain open at night. A number of stores in the Herkimer area stay open until 9:00 P.M., and if plaintiff stayed open until 9:00 P.M. on the two holidays, it would have a continuous unrestricted sales period of five and one-half hours. We find that the present ordinance is specifically authorized by Section 86 of the General Municipal Law and is not prohibitory in scope.
In Herkimer Corp. v. Vil. of Herkimer (supra) the majority did not reach the question of the constitutionality of the ordinance. Plaintiff claims that the present ordinance is unconstitutional in that it causes a deprivation of property without due process, is vague and indefinite and deprives plaintiff of equal protection of the law.
In determining whether the ordinance amounts to a deprivation of due process, we apply the 'means-end' test set forth in Nebbia v. New York (291 U.S. 502, 54 S.Ct. 505, 78 L.Ed. 940). That case holds that 'the guaranty of due process * * * demands only that the law shall not be unreasonable, arbitrary, or capricious, and that the means selected shall have a real and substantial relation to the object sought to be attained.' (291 U.S. 502, 525, 54 S.Ct. 505, 510--511). If the relation...
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