Neuendorff v. Duryea

6 Daly 276, 52 How. Pr. 267

• Court: New York Court of Common Pleas
• Decided: December 31, 1875
• Status: Published

Opinion

Chables P. Daly, Chief Justice.

“It is claimed that the act is unconstitutional, because it is a local act, and the subject of it is not, as the Constitution requires, expressed in its title. It is entitled ‘ An act to preserve the public peace and order on the first day of the week, commonly called Sunday,’ and the subject of it is the prohibition of public theatrical performances on that day in the city of Hew York. A statute designed to preserve the public peace and order upon a Sunday, need not, in its title, express what is prohibited in the act with a view to that end ; for if that was so, everything prohibited would have to appear in or be expressed by the title, which would be absurd. It is sufficient if what is forbidden to be done comes within the general purpose expressed in the title—the preservation of public peace and order; and, considering this to be the rule of interpretation, how can this court declare judicially that the prohibiting of public theatrical performances in this city on Sunday does not and cannot in any way conduce to the preservation of peace and order upon that day ? It is argued that in the majority of Christian countries, public theatrical performances are permitted upon Sunday; to which I may add that in many or most of those countries, after a certain horn-, shops are also allowed to be opened and all servile employments carried on, the same as upon any other day of the week. In nearly all the States of this Union, however, as well as in the country from which our institutions are derived, no such practice exists; for Sunday is regarded not alone as a day of religious observance, but also as a day of rest. £ It is a mistake,’ says Bishop, £ to suppose that Sabbath keeping is a thing merely of religious observance, or especially a tenet of some particular sect; ’ on the contrary, he remarks, £ the setting apart by the whole community of one day in seven, wherein the thoughts of men and the physical activities shall be turned into other than their accustomed channels, is a thing pertaining as much to the law of nature as is the intervening of the nights between the days ’ (Bishop on Criminal Law, vol. i, section 946, n. 5, 4th ed.). We have statutes in this State, forbidding any servile laboring or working on that day, excepting works of necessity or charity, unless done by those who keep Saturday as their Sabbath; forbidding the sale of goods, wares or merchandise, and forbidding many things from being done which would otherwise be harmless, such as shooting, hunting, fishing, etc. (1 Revised Statutes, pp. 675, 676), and like statutes exist in other States and in Great Britain.

“By long-established usage, moreover, in this country and in Great Britain, the theatres have been closed upon Sundays, a custom existing so long and so universally observed as to dispense with the necessity of statutory enactments, until one or more theatrical proprietors in this city undertook to disregard it some few years ago, which led to the enactment of the statute in question. The quiet and order upon that day incident to the shutting up of all places of public amusement, the absence of all traffic, and the cessation from ordinary work and labor, are in marked contrast with the mingled pursuit of business and pleasure on Sunday in many of the cities of continental Europe. In those cities, when the morning religious service is over in the churches, all parties are free to work, labor, traffic or amuse themselves as they think proper; but in our cities the great bulk of the community attend public worship not only in the morning, but in the afternoon, or else in the evening; so that by a very large class the day is observed throughout as a day of religious obligation and duty, while to all it is a day of rest from their ordinary employments, and if they make it so, of quiet and repose. It is this well-known feature which gives to the Sunday with us a characteristic element of order, sufficiently distinguished and understood to indicate generally what is meant by the preservation of order on Sunday, as expressed in the title to this act. Previous laws have forbidden all work and labor on that day except works of necessity and charity; but if the theatres are opened for the giving of public performances, the actors and all employed in giving them violate the statutes forbidding work and labor on Sunday, and an element of order, which it was the design of these statutes to maintain, is disturbed. There is, therefore, a feature of order, which is preserved by keeping the theatres closed upon Sunday, and that being the object of the act, it is expressed by the title. The objection that the title does not express that the act is limited to the city of Hew York is not well taken. All that the Constitution requires is that if the act be a local act, the subject of it shall be expressed in its title. The subject of the act is distinguishable from its local operation, and it is the fact of its local operation, ascertained by inspecting the body of the act, which renders it void, if the provision of the Constitution has not been complied with. Judgment must, therefore, be rendered for the defendants.”

From the judgment and from the order dissolving the injunction, the plaintiff appealed.

Heovry Wehle and Charles Wehle, for appellants.

E Delafield Smith and A. Oalcey Hall, for respondents.

Loew, J.

The act referred to prohibits theatrical and other exhibitions or entertainments on Sunday, within the city and county of Hew York. The constitutional power of the Legislature to enact laws for regulating the observance of the Sabbath, is not seriously questioned. Hor, indeed, could it very well be, for on two different occasions have our courts upheld the very act now under consideration as a valid and constitutional exercise of legislative power and authority (The People v. Hoym, 20 How. 76 ; Lindenmuller v. The People, 33 Barb. 548). In the last named case, Judge Allen, in rendering the decision of the general term of the Supreme Court, delivered an able and exhaustive opinion, which, in our judgment, is conclusive on this point.

The objection raised, and mainly relied on by the plaintifí’s counsel, in this case is, that the act of 1860 is in violation of section 16 of article 3 of the Constitution, which declares that “ no private or local bill which may be passed by the Legislature shall embrace more than one subject, and that shall be expressed in the title.” As this point was not raised in either of the two eases alluded to, those adjudications do not touch it, and we are now, for the first time, called upon to pass an opinion upon it. The act in question is undoubtedly a local one, and thus comes within the legislation intended to be regulated by the constitutional provision just -cited. It is conceded that it embraces but one subject, namely, the prohibition of dramatic and other performances in the city of New York on Sundays. It is claimed, however, that this subject is not expressed in the title. The question therefore arises, does the title of the act conform to the requirement of the Constitution in this respect ? We think it does. The title is, “ An act to preserve the public peace and order on the first day of the week, commonly called Sunday.” The term “preserve ” means “ to keep,” “ to secure,” “ to uphold,” and “public peace” is “ public tranquility,” “that quiet, order, and freedom from agitation or disturbance which is guaranteed by the laws.” It is competent to the Legislature to determine what pastimes or amusements have a tendency to interrupt public tranquility, and cause agitation or disturbance. They may, consequently, with a view to securing or upholding tranquility, quiet, and freedom from disturbance, prohibit such amusements or pastimes, and thus preserve the public peace. That which one may consider merely innocent amusement or recreation, another would, perhaps, deem highly reprehensible, immoral, and pernicious. Who is to decide between the two, if not the law makers ? It is their province to declare what recreations or diversions are harmless and innocent, and therefore lawful, and what amusements operate injuriously upon others, or exert a baneful influence upon the community, and thus tend to a breach of the peace, and should for that reason be prohibited. And if the Legislature, in their wisdom, come to the conclusion that certain pastimes or amusements are hurtful or injurious to others, and tend to disturb the peace and tranquility of the public, the courts will not ordinarily, even if they have the power to do so, which may be questionable, sit in review of the judgment and discretion exercised by the lawmaking power. In the present instance, the Legislature, judging from the title of the act, evidently regarded the giving of theatrical and other performances in the city of Hew York on Sunday as vicious, subversive of the public welfare, and tending to disturb the public peace; and we are unable to say judicially that such cannot possibly be the case. As Mr. Justice Allen very pertinently observes, in Lindenmuller v. The People (supra): “ The gathering of a crowd on a Sunday at a theatre, with its drinking saloons, and its usual, if not necessary facilities for and inducements to licentiousness and other kindred vices, the Legislature might well say was not consistent with the peace, good order, and safety of the city.”

Again, the word “ order ” signifies “ proper state or condition,” “ established or settled mode of proceeding.” To apreserve order” therefore, means to keep or secure the proper state, or condition, or established mode of proceeding. How, by the Revised Statutes, all work and labor on Sunday, except works of necessity and charity, are forbidden under the penalty of one dollar for each offense (1 R. S. 676, § 70). Thus, the established mode of proceeding for a good and law-abiding citizen is to refrain from all work and labor on Sunday. If he does that, he may be said to be in a proper state or condition, so far as the statute is concerned. But actors and others engaged in giving theatrical and other exhibitions, violate this provision of the Revised Statutes. Hence it was the design of the Legislature, in enacting the act of 1860, to cause the persons engaged in the performances mentioned therein to adhere to the established mode of proceeding, and thus uphold or secure the proper state or condition, or, in other words, “preserve order” And they seek to accomplish this purpose by increasing the penalty for the doing of any of the prohibited acts from one dollar to five hundred dollars ; and moreover declaring that the offending party shall, in addition, he guilty of a misdemeanor.

. It 'frill thus be seen that the words “ to preserve the public peace and order,” &c., in the title of the act of 1860, properly express its object. It is not necessary that the title of an act should declare the subject thereof in the most apt and expressive language that could be chosen. If the subject of the act is honestly and reasonably indicated by its - title, the constitutional requirement will be fully complied with. Says Chief Justice Church (In re Mayer, 50 N. Y. 506): “ The Constitution does not require that the title of an act should be the most -exact expression of the subject which could be invented. It is enough if it fairly and reasonably announces the subject of the act.” The same learned jurist, in the case of The People v. Briggs (Id. 558), remarks : “ It is not requisite that the most expressive title should be adopted, nor should courts criticise too rigidly the details of a bill to find extraneous matter.” In the last-mentioned case, the title of the act, the constitutionality of which was questioned, was “ An act to amend the several acts in relation to the city of Rochester.” It was claimed by the appellants that it contained several independent subjects not mentioned in the title. The court, however, only considered the "two principal points relied on. One was that the act authorized the water commissioners of the city of Rochester to contract with the trustees of adjacent villages through which the water might be conducted to the city, to supply such villages with water, and conferred authority on the said trustees, in case they made any such contract, to levy and collect the annual expense of the same with the regular annual tax of the village. The -other was that the city railroad was authorized to lay its tracks under the direction of the municipal authorities, on either side ■of Lake avenue, instead of the center thereof. But a majority ■of the court were of the opinion that the act was constitutional, and that the defendants had a valid title to the office of the ■commissioners of public works, to which they had been appointed in pursuance of the provisions of the said act. So, also, with respect to the police justices’ act (Laws of 1873, ch. ■538). It directed the way and manner in which the police justices in the city of New York, and their clerks, should perform their respective duties, and provided for the orderly and proper administration of justice in the said courts. It also legislated the then existing police justices, police court clerks, stenographers and other officials out of office. The act was entitled “ An act to secure better administration in the police courts of the city of New York.” This title did not in terms indicate that the ten police justices then in office were to be ousted, and an equal number of other persons appointed in their places. The court of last resort, nevertheless, held that the act was constitutional and valid, and that the new appointees were lawfully entitled to the offices- held by them. The court say that every provision which had a tendency to secure better administration in these courts, and which the law makers in their wisdom might deem necessary or pertinent to accomplish the object, could legitimately be put in the act (In re Wenzler v. The People, Ct. of Appeals, MSS. Op.).

But it is said that the title should have disclosed that the act is confined in its operation to the city of New York, and that this omission is fatal to its validity. The case of Durkee v. The City of Janesville (26 Wis. 697), is cited in support of this proposition. The title of the act in that case was “ An act to legalize and authorize the assessment of street improvements and assessments.” But inasmuch as its sole object was to legalize certain proceedings of the common council of the city of Janesville, relative to assessments, the Supreme Court of Wisconsin held that it was repugnant to a constitutional provision of that State, similar to the one contained in our own Constitution, and was therefore void. Although at first view this case would seem to be decisive of the one under consideration, yet we think that on reflection it will be seen that it materially differs from the latter, and does not aid the plaintifE. One of the objects of the provision of the Constitution referred to, is to apprise the members of the Legislature and the public, of the subject of the provisions of a local bill by a mere inspection of its title, so as to guard against fraud, misapprehension or mistake in its passage (The People v. Briggs, supra). Now the title of the act passed by the Wisconsin Legislature, did not indicate its object. As the court very properly say, “No one reading this title would for a moment suppose that the sole purpose of the law was to legalize the proceedings of the common council of the city of Janesville in making these special assessments.”' Nor is there anything in this title from which any one would or could infer that the act was intended to legalize or validate all the assessments which had been laid throughout the entire State, and that, consequently, it was also applicable to those which had been made in Janesville. There was, therefore, absolutely nothing in the title which indicated either to the Legislature or the residents of Janesville, that the provisions of the act had any reference whatever to that city. In the case at bar, on the other hand, a person on perusing the title would, we think, at once conclude that the act was a general one for the better observance of the Sabbath throughout the whole State, Indeed, the learned counsel for the plaintiff expressly concede this in their points. Now, the whole necessarily includes all its component parts, and the greater, of course, comprehends the lesser. So that, although the title does not in terms refer to the city of New York, it nevertheless indicates that the subject-matter of the act relates to that city. Hence members of the Legislature and residents of the city of New York had notice that the provisions of the act would affect the latter and could have opposed its passage if they had seen fit to do so. The title of the act, therefore, did not and could not mislead or deceive any one. Moreover, a solemn act of the Legislature should not be declared unconstitutional and set aside by the courts on slight grounds. In the language of Chief Justice Church (The People v. Briggs, supra), “ every presumption is in favor of the validity of legislative acts, and they are to be upheld, unless there is a substantial departure from the organic law.”

It results, from what has been said, that the act in question cannot fairly be said to be inconsistent with or in contravention of the clause of the Constitution referred to, and that the judgment and order appealed from should be affirmed, with costs.

Joseph F. Daly, J.

The act of the Legislature entitled “ An act to preserve the public peace and order on the first day of the week, commonly called Sunday ” (Laws of 1860, ch. 501), which prohibits public theatrical performances on Sunday in the city of Hew York, is not within the letter or the spirit of the constitutional provision that “no private or local bill which may be passed by the Legislature shall embrace more than one subject, and that shall be expressed in the title (Const, art. 3, sec. 16). Amusements salutary or harmless in themselves, of a public character and attracting crowds of persons, may not comport with the order necessary to the due observance of the Sabbath. It is for the Legislature, representing the people, to define and establish regulations for Sunday in matters of public amusement and recreation as well as matters of business. The public selling of merchandise is prohibited by law on that day, as well as the service and execution of civil process, hunting, fishing and other sports and pastimes (1 R. S. 675, 676). And so might public ball playing, regattas, and all other recreations calculated to attract crowds or to interfere in any manner with that peace and quiet which in this State it has always been the aim of the Legislature to preserve on that day. Although a theatre is as much the private premises of the proprietors as a store is of the merchant, it is certainly a place of resort for the public, and as much within the scope of the legislative regulation on Sunday as the business of selling merchandise. There can be no limit to legislative influence with public recreations and business on Sundays, if the power of the Legislature to make provision for the observance of Sunday is admitted, and the latter is not questioned. All such enactments are proper in a single act “ for the preservation of public peace and order ” on that day; otherwise the act could be no more than a general repetition in words of its title, and the citizen would receive from it no information as to what he might or might not lawfully engage in, and the public officers would either be left to the arbitrary exercise of discretion in carrying out its provisions, or be powerless to effect the end it was intended to accomplish. The numerous decisions of this State on the constitutional provisions above cited are directly in point (In re Mayer, 50 N. Y. 506; People ex rel. City of Rochester v. Briggs, 50 N. Y. 553 ; Sun Mutual Ins. Co. v. The Mayor, 8 ; Williams v. The People, 24 N. Y. 406; Sullivan v. The Mayor, 53 N. Y. 652 ; Matter of Volkening, 52 N. Y. 650 [in memoranda] ; In re Wentzel v. The People, in error,, Ct. App. Nov. 1874).

The judgment and order appealed from should he affirmed.

Labremobe, J., concurred.

Ordered accordingly.