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302
N.Y. 75
(Cite
as: 302 Ny.Y. 75, 96 N.E.2d 184)
Court
of Appeals of New York
PEOPLE
v.
FRIEDMAN
PEOPLE
v.
PRASKA.
Decided
Dec. 1, 1950.
Appeal
Dismissed April 16, 1951.
See
71 S.Ct. 623.
Sam
Friedman and Sam Praska were convicted in the Court of Special
Session of the City of New York, Morrissey, P. J., Flood
and Paige, JJ., at time of conviction, and Morrissey, P.
J., De Luca and Flood, JJ., at time of sentence, of having
publicly sold and offered for sale uncooked meats on a Sunday
in violation of Penal Law, s 2147, and the convictions were
affirmed by the Appellate Division of the Supreme Court
in the first judicial department, 276 App.Div. 1008, 95
N.Y.S.2d 903, and the defendants appealed, by permission
of an Associate Judge of the Court of Appeals. The Court
of Appeals, Per Curiam, held that the statute prohibiting
public selling upon Sunday except in enumerated cases is
not unconstitutional.
Affirmed.
West
Headnotes
[1]
Sunday 8
369k8
Most Cited Cases
The exception contained in statute for persons observing
another day as the Sabbath may not be read into statute
dealing with public selling upon Sunday. Penal Law, §§ 2144,
2147.
[2]
Constitutional Law 70.3(4)
92k70.3(4)
Most Cited Cases
(Formerly
92k70(3))
[2]
Statutes 174
361k174
Most Cited Cases
Courts are bound to construe statutes as they find them
and may not sit in review of discretion of legislature or
determine expediency, wisdom or propriety of its action
on matters within its powers
[3]
Constitutional Law 70.3
92k70.3(1)
Most Cited Cases
(Formerly
92k70(3))
.
A plea that a statute imposes inconvenience or hardship
upon a litigant should be addressed to the legislature,
the court may not usurp functions of legislature by legislating
judicially.
[4]
Constitutional Law 84.5(15)
92k84.5(15)
Most Cited Cases
(Formerly
92k274)
[4]
Sunday 2
369k2
Most Cited Cases
The statute prohibiting public selling upon Sunday except
in enumerated cases is not unconstitutional as an infringement
upon religious freedom. Penal Law § 2147; U.S.C.A. Const.Amend.
1.
[5]
Sunday 2
369k2
Most Cited Cases
The
legislature has power to regulate the observance of Sunday
as a civil and political institution. Penal Law, § 2140.
[6]
Constitutional Law 239(2)
92k239(2)
Most Cited Cases
(Formerly
92k239)
[6]
Sunday 2
369k2
Most Cited Cases
The statute prohibiting public selling upon Sunday except
in enumerated cases is not invalid as discriminatory "class
legislation" in violation of equal protection guaranteed
by Fourteenth Amendment. Penal Law, § 2147; U.S.C.A. Const.Amend.
14.
[7]
Constitutional Law 211(2)
92k211(2)
Most Cited Cases
(Formerly
92k211)
The
equal protection of the laws does not require legislature
to achieve abstract symmetry or to classify with mathematical
nicety, and, hence, a statute need not be perfectly symmetrical
in its pattern of exclusions and inclusions. U.S.C.A. Const.Amend.
14.
[8]
Constitutional Law 239(2)
92k239(2)
Most Cited Cases
(Formerly
92k239)
[8]
Sunday 2
369k2
Most Cited Cases
Evidence failed to show that statute prohibiting public
selling on Sunday except in enumerated cases had been enforced
discriminatorily in violation of equal protection clause
of the state and federal constitution, where offer of proof
was not an offer to show a pattern of discrimination consciously
practiced, but merely indicated some nonenforcements as
to certain other businesses many of which were allowed to
remain open for sale of permitted commodities. Penal Law,
§ 2147; Const. Art. 1, § 11; U.S.C.A. Const.Amend. 14.
**185
*76 Leo Pfeffer, New York City, and Will Maslow, New York
City, for appellants.
*77
Will Maslow and Joseph B. Robison, New York City, for American
Jewish Congress and others, amici curiae, in support of
appellants' position.
*78
Frank E. Karelsen, Jr., Mary Gardiner Jones and Richard
H. Baker, all of New York City, for American Civil Liberties
Union, amicus curiae, in support of appellants' position.
Frank
S. Hogan, Dist. Atty., New York City (Edwin C. Hoyt, Jr.,
New York City, of counsel), for respondent.
PER
CURIAM.
[1]
In the light of its historical background, section 2144
of the Penal Law, Mck.Consol.Laws, c. 40, may not reasonably
be read into section 2147, dealing with 'public selling
* * * upon Sunday' L. 1785-1788, Vol. 2, pp. 679-680; 1
Rev.Stat. of N.Y.1828 (1st ed.), part I, ch. XX, tit. VIII,
art. 8, pp. 675-676; ibid. 1836 (2d ed.), Vol. 1, p. 675;
ibid. 1845 (3d ed.), Vol. 1, pp. 849-850; ibid. 1851 (4th
ed.), Vol. 2, p. 83; ibid. 1858 (5th ed.), Vol. 2, p. 936;
ibid. 1875 (6th ed.), Vol. 2, pp. 928-929; ibid. 1881 (7th
*79 ed.), Vol. 3, p. 1975; L. 1881, chs. 676, 680, Vol.
1, pp. 913, 917; ibid. Vol. 3, Penal Code, pp. 62-67; ibid.
1883, ch. 358, p. 541; ibid. 1885, ch. 519, p. 875. The
exempting language of those enactments over a period of
more than a century and a half refers only to laboring or
working and excludes selling. For almost three quarters
of a century this has been the uniform interpretation given
to the exemption clause by our courts. Anonymous, 12 Abb.N.C.
455; Matter of The Agudath Hakehiloth, 18 Misc. 717, 42
N.Y.S. 985; People v. Adler, 174 App.Div. 301, 160 N.Y.S.
539; People v. Rudnick, 259 App.Div. 922, 20 N.Y.S.2d 996.
Other jurisdictions have reached similar conclusions. State
v. Haining, 131 Kan. 853, 854-855, 293 P. 952; Koman v.
City of St. Louis, 316 Mo. 9, 17, 289 S.W. 838; Commonwealth
v. Has, 122 Mass. 40; Commonwealth v. Starr, 144 Mass. 359,
11 N.E. 533; Commonwealth v. Kirshen, 194 Mass. 151, 80
N.E. 2; State v. Weiss, 97 Minn. 125, 130, 105 N.W. 1127.
[2][3]
We are bound to construe statutes as we find them and may
not sit in review of the discretion of the Legislature or
determine the expediency, wisdom or propriety of its action
on matters within its powers. **186 Lawrence Constr. Corp.
v. State of New York, 293 N.Y. 634, 639, 59 N.E.2d 630,
632; Matter of Russo v. Valentine, 294 N.Y. 338, 62 N.E.2d
221. A plea that a statute imposes inconvenience or hardship
upon a litigant should be addressed to the Legislature;
we may not usurp its functions by legislating judicially.
United States v. Carolene Products Co., 304 U.S. 144, 58
S.Ct. 778, 82 L.Ed. 1234.
[4][5] Nor
may we say that section 2147 of the Penal Law is unconstitutional
because of infringement upon religious freedom. It is not
a 'law respecting an establishment of religion, or prohibiting
the free exercise thereof' U.S.Const. 1st Amendment. It
does not set up a church, make attendance upon religious
worship compulsory, impose restrictions upon expression
of religious belief, work a restriction upon the exercise
of religion according to the dictates of one's conscience,
provide compulsory support, by taxation or otherwise, of
religious institutions, nor in any way enforce or prohibit
religion. Although the so-called Sunday laws may be said
to have had a religious origin, our statute since 1881,
Penal Code, s 259, now Penal Law, s 2140, has also recognized
that the first day of the week by general consent is set
apart 'for rest', in accord with the general experience
of mankind that it is wise and necessary *80 to set apart
such a day at stated intervals for both the physical and
moral welfare of the members of a State or community. The
power of the Legislature to regulate the observance of Sunday
as a civil and political institution is well settled. Soon
Hing v. Crowley, 113 U.S. 703, 710, 5 S.Ct. 730, 28 L.Ed.
1145; Hennington v. Georgia, 163 U.S. 299, 304, 318, 16
S.Ct. 1086, 41 L.Ed. 166; Petit v. State of Minnesota, 177
U.S. 164, 165, 20 S.Ct. 666, 44 L.Ed. 716; People v. Moses,
140 N.Y. 214, 215, 35 N.E. 499; People v. Havnor, 149 N.Y.
195, 201-203, 43 N.E. 541, 543, 31 L.R.A. 689; writ of error
dismissed sub nom. Havnor v. New York, 170 U.S. 408, 18
S.Ct. 631, 42 L.Ed. 1087; Silverberg Bors. v. Douglass,
62 Misc. 340, 342, 114 N.Y.S. 824, 825; see, also, People
v. Dunford, 207 N.Y. 17, 20, 100 N.E. 433; People ex rel.
Woodin v. Hagan, 36 Misc. 349, 73 N.Y.S. 564; 50 Am.Jur.,
Sundays and Holidays, pp. 803-804. The cases cited by appellants
involve completely dissimilar fact patterns. Section 161
of the Labor Law, Mck.Consol.Laws, c. 31, is for the benefit
of the individual workman, and is not a substitute for the
Sunday laws, which establish a general day of rest and repose
for the community as a whole.
[6][7]Section
2147 may not be said to deny the equal protection guaranteed
by the Fourteenth Amendment by reason of being discriminatory
class legislation. The statutory scheme is that of a general
prohibition against specified activities on Sunday with
some exceptions as to necessities, recreation and conveniences,
many of which exceptions merely emphasize that the Legislature
recognizes Sunday as a day for rest, play, relaxation and
recreation rather than merely as a religious Sabbath. The
statutory scheme viewed as a whole is a valid one and does
not constitute discrimination. Petit v. State of Minnesota,
supra; People v. Dunford, supra; People v. Havnor, supra;
People v. Moses, supra; Silverberg Bros. v. Douglass, supra.
While the statute may not be perfectly symmetrical in its
pattern of exclusions and inclusions, the equal protection
of the laws does not require a Legislature to achieve 'abstract
symmetry' Patsone v. Commonwealth of Pennsylvania, 232 U.S.
138, 144, 34 S.Ct. 281, 58 L.Ed. 539, or to classify with
'mathematical nicety' Lindsley v. Natural Carbonic Gas Co.,
220 U.S. 61, 78, 31 S.Ct. 337, 55 L.Ed. 369; Borden's Farm
Products Co. v. Baldwin, 293 U.S. 194, 209, 55 S.Ct. 187,
79 L.Ed. 281.
[8]Finally,
the claim that the statute has been consistently enforced
discriminatorily in violation of the equal protection clause
of the Fourteenth Amendment and section 11 of article I
of the New York State Constitution is without merit. *81
Snowden v. Hughes, 321 U.S. 1, 8, 64 S.Ct. 397, 88 L.Ed.
497. The offer of proof was not an offer to show a pattern
of discrimination consciously practiced, as in **187 Yick
Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220:
it merely indicated some nonenforcement as to certain other
businesses many of which were allowed to remain open for
the sale of permitted commodities.
The
defendants' remedy lies with the Legislature.
The judgment of the Appellate Division should be affirmed.
LOUGHRAN, C. J., and LEWIS, CONWAY, DESMOND, DYE, FULD and
FROESSEL, JJ., concur.
Judgment
affirmed.
N.Y. 1950.
Copr.
© West 2002 No Claim to Orig. U.S. Govt. Works
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