State v. Gordon

• Decision Date: 24 July 1956
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Irving GORDON. Supreme Court of Errors of Connecticut

Page 477

125 A.2d 477

143 Conn. 698

STATE of Connecticut v. Irving GORDON.

Supreme Court of Errors of Connecticut.

July 24, 1956.

Irwin E. Friedman, Bridgeport, with whom, on the brief, was Arthur Levy, Jr., Bridgeport, for appellant (defendant).

James J. O'Connell, Pros. Atty., Bridgeport, for appellee (state).

Before BALDWIN, O'SULLIVAN, WYNNE and DALY, JJ., and COMLEY, Superior Court Judge.

BALDWIN, Associate Justice.

The information charged the defendant with a violation of an ordinance of the town of Stratford. He was presented in the Court of Common Pleas for Fairfield County. His demurrer to the information was overruled, whereupon he entered a plea of not guilty and elected to be tried to the court without a jury. The court found him guilty, and he has appealed.

The ordinance prohibited the sale of merchandise at auction on Sunday and after 6 o'clock in the afternoon of any day. It is set forth in the footnote. ¹ The defendant challenges the validity of the ordinance on two grounds: (1) The legal procedure for its adoption was not followed; and (2) the ordinance is an arbitrary, unreasonable and discriminatory attempt to exercise the police power and is therefore unconstitutional.

The ordinance purports to have been adopted in 1954 under the authorization of § 197c of the 1953 Cumulative Supplement (as amended, Cum.Sup.1955, § 248d) to the General Statutes and § 1 of the charter of the town of Stratford. 22 Spec. Laws 335, No. 513, § 1. Both confer the necessary power to adopt legislation regulating auctions. Section 5 of the charter provides in part: 'No ordinance shall be passed until it has been read at two separate meetings [of the council] or the requirement of readings at two separate meetings has been dispensed with by vote of seven members of the council. The final reading shall be in full, unless the measure shall have been printed or typewritten and a copy thereof furnished to each member prior to such reading.' 18 Spec.Laws 1049, § 5. The ordinance was presented at a meeting of the council on June 21, 1954, and read in full. A motion was then made and seconded to adopt it, as read, and to refer it to the ordinance committee for a public hearing. An amendment to change the word 'sundown' in § 1 to '6 p. m.' was offered and accepted by the maker and the seconder of the motion. The amendment and the motion to adopt the ordinance as amended and refer it to the ordinance committee were then approved in two separate votes by roll call, the vote being seven for and three against. On July 1, 1954, a copy of the minutes of the meeting of June 21, 1954, containing the text of the ordinance in full with a notation that the word 'sundown' had been changed to '6 p. m.,' was sent to each member of the council. Thereafter, the ordinance was duly advertised in the Bridgeport Post for a public hearing before the ordinance committee. This hearing was held on July 6, and the committee reported to the council on July 12, when the matter was tabled until the next regular meeting of the council. At the meeting on July 12, the minutes of the meeting of June 21, including the full text of the ordinance, were read in ful and approved. On September 20, at a duly recessed regular meeting of the council, a motion to accept the report of the ordinance committee that the ordinance not be adopted was rejected unanimously. A motion to dispense with the reading of the ordinance and to adopt it was then approved unanimously on a roll call vote, all ten members of the council being present and voting. In the light of these facts, the claim of the defendant that the ordinance as 'finally' adopted was never actually read, as required by the law, is bootless. His further claim that when the ordinance committee made its report to the council the results of the public hearing were misrepresented is equally useless. There is no statute or ordinance or rule of the council before the court which requires the reference of a proposed ordinance to a committee for a public hearing or that the council be guided by the recommendations of any such committee. We conclude that, as to procedure, the ordinance was legally adopted.

We will now consider the charge that the ordinance violates the due process and equal protection clauses of the federal and state constitutions. U.S.Const. Amend. XIV, § 1; Conn.Const. art. I, §§ 1, 9, 12. The ordinance is an exercise of the police power conferred upon the town by statute. This power comprehends a system of internal regulation, to preserve order and prevent crimes and misdemeanors, and to enable people to live together in close association, preserving to each his individual rights and privileges but so controlling them that their enjoyment is reasonably consistent with the enjoyment of like rights and privileges by others. 2 Cooley, Constitutional Limitations (8th Ed.) p. 1223; see Allyn's Appeal, 81 Conn. 534, 538, 71 A. 794, 23 L.R.A.,N.S., 630. The limit of the exercise of the police power is necessarily flexible, because it has to be considered in the light of the times and the prevailing conditions. State v. Hillman, 110 Conn. 92, 105, 147 A. 294. To be constitutionally valid, a regulation made under the police power must have a reasonable relation to the public health, safety, morality and welfare. Calve Bros. Co. v. Norwalk, 143 Conn. 609, 616, 124 A.2d 881; Amsel v. Brooks, 141 Conn. 288, 294, 106 A.2d 152, 45 A.L.R.2d 1234; Corthouts v. Town of Newington, 140 Conn. 284, 288, 99 A.2d 112. Whether the times and conditions require legislative regulation, as well as the degree of that regulation is exclusively a matter for the judgment of the legislative body--in this instance, the town council of Stratford. Courts can interfere only in those extreme cases where the action taken is unreasonable, discriminatory or arbitrary. Carroll v. Schwartz, 127 Conn. 126, 130, 14 A.2d 754; State v. Miller, 126 Conn. 373, 377, 12 A.2d 192. When a question of constitutionality is raised, the court presumes validity and sustains the legislation unless it clearly violates constitutional principles. Amsel v. Brooks, 141 Conn. 288, 294, 106 A.2d 152; Schwartz v. Kelly, 140 Conn. 176, 179, 99 A.2d 89. If there is a reasonable ground for upholding it, courts assume that the legislative body intended to place it upon that ground and was not motivated by some improper purpose. Walsh v. Jenks, 135 Conn. 210, 222, 62 A.2d 773; State ex rel. Higgins v. Civil Service Commission, 139 Conn. 102, 111, 90 A.2d 862. This is especially true where the apparent intent of the enactment is to serve some phase of the public welfare. Lyman v. Adorno, 133 Conn. 511, 514, 52 A.2d 702; Legat v. Adorno, 138 Conn. 134, 145, 83 A.2d 185.

The public sale of merchandise is a business which concerns many people in many ways. Legislation regulating it which has a reasonable relation to the public good and is not arbitrary, prohibitive or discriminatory has generally been sustained. Walp v. Mooar, 76 Conn. 515, 521, 57 A. 277 (recording sales of entire stocks of merchandise); State v. Reynolds, 77 Conn. 131, 134, 58 A. 755 (selling provisions from a temporary stand near a fairground); State v. Feingold, 77 Conn. 326, 332, 59 A. 211 (itinerant vendors); State v. Stokes, 91 Conn. 67, 70, 98 A. 294 (sale of milk in bulk); Hammerberg v. Holloway, 131 Conn. 616, 621, 41 A.2d 791, and Hammerberg v. Leinert, 132 Conn. 596, 599, 46 A.2d 420 (regulation of milk industry); State v. Cullum, 110 Conn. 291, 296, 147 A. 804 (regulation of public markets); Sage-Allen Co. v. Wheeler, 119 Conn. 667, 678, 179 A. 195, 98 A.L.R. 897 (sale of optical goods); Carroll v. Schwartz, 127 Conn. 126, 131, 14 A.2d 754 (unfair sales practices); Amsel v. Brooks, 141 Conn. 288, 298, 106 A.2d 152, 45 A.L.R.2d 1234 (manufacture and sale of dental appliances). In each of these cases, there was present one or more factors which made the particular legislation reasonable and proper for the exercise of the police power.

In the instant case, the court found the following facts: The auction at which the defendant sold an item of merchandise and was subjected to arrest was a key operation in the business conducted by the owners of a so-called auction market. There were originally three such auction establishments in the town, at least two of which existed at the time when the plaintiff was arrested. Their purpose was the attraction of large numbers of people. Concessionaries leased, from the owners of the auction markets, booths from which they sold merchandise and foodstuffs until late in the evening. One of the auctions was conducted on two days in each week, and another on a different day. Many people came to them from other towns, causing a heavy volume of automobile traffic. Every Saturday 6,000 to 7,000 people would come to the grounds of one of the auction markets, and 90 per cent of them would come in automobiles. It is manifest that the method of doing business at these auction markets was calculated to bring crowds of people together during relatively short periods of time in the evening. Whenever crowds of people congregate, especially after dark, whether at regular or irregular periods, problems of safety, health and morality which affect orderly and peaceful living are created. It is unnecessary to enumerate them. These problems must be met by such measures as the wisdom and judgment of those in charge of the local government may find feasible and effective. The argument that to prohibit auctions after 6 p. m. is fixing the time arbitrarily and unreasonably with respect to the hours of darkness is not persuasive. In our seasons the time when darkness falls varies from 4:30 o'clock in the afternoon during midwinter to 7:30 o'clock in the evening during midsummer. The council was required, in order to give definiteness to the ordinance, to fix some time with reasonable certainty.

The defendant claims that the ordinance violates constitutional...