Biddles, Inc. v. Enright

Section 1991 of the Consolidation Act (Laws of 1882, chap. 410), as amended by chapter 179 of the Laws of 1918, is made applicable to the city of New York by section 1610 of the present Greater New York charter. It relates to sales by public auction, and its provisions are as follows:

“ Sec. 1991. All sales of goods by public auction in the city of New York, by an auctioneer, shall be made in the daytime, between sunrise and sunset, excepting:

“ 1. Books and prints.

“2. Goods sold in the original package, as imported, according to a printed catalogue, of which samples shall have been opened and exposed to public inspection at least one day previous to the sale.

“ 3. Horses and live stock.

“ 4. Fruit and other farm products.

"5. Paintings, statuary, bronzes and other works of arts and specimens of natural history, which shall have been on public exhibition in the city of New York for at least one day immediately preceding the time of sale, provided that public notice of the time and place of such exhibition shall have been given by advertisement for at least one day immediately preceding the day of such exhibition, in one or more of the daily newspapers printed in said city, and designated as hereinafter prescribed. All such sales shall be conducted under a special permit of the mayor of said city, who is hereby authorized to grant such special permits in his discretion, and upon such reasonable conditions as he may prescribe. The mayor of the city shall, from time to time; by a notice to be filed in his office and printed for five consecutive days in the City Record, designate the newspapers in which the advertisements hereinafter provided for may be

Biddles, Inc., one of the plaintiffs, is a domestic corporation and the owner of a jewelry store located at No. 111 West Forty-second street in the city of New York.

Irving Brill, the other plaintiff, is a duly licensed auctioneer of the city óf New York authorized by law to conduct auction sales.

The complaint in this action alleges that Biddles, Inc., has in the said jewelry store a stock of merchandise (jewelry) which it is desirous of selling in the night time at public auction to the highest bidder through the auctioneer Irving Brill; that by reason of the. above statute the said Brill cannot conduct such a sale without violating the law and subjecting himself to arrest by the defendant, the police commissioner of the city of New York, and that the defendant has notified the plaintiffs that he will enforce the statute, which, say the plaintiffs, will result in irreparable damage and loss for which they have no adequate remedy at law. They, therefore, pray an injunction, pleading that the statute is unconstitutional.

At the time the plaintiffs moved upon the complaint and affidavits for a temporary injunction pending the trial of the action, the defendant also moved for judgment on the pleading on the ground that the complaint did not state a cause of action. The defendant’s motion was granted and the judgment dismissing the complaint was unanimously affirmed by the Appellate Division. The appeal comes here upon the constitutional question.

The appellants claim that the statute is not within the police power; that it in no way affects or relates to a condition threatening the public health, morals or welfare especially as the reasons for its original enactment have long since passed away.

“ An Act to prevent the Sale of Goods at Night by Vendue Auction or Outcry in the City of New York.

“ Whereas a Practice of Selling Goods by Auction at Night, when their Qualities cannot be accurately distinguished, has obtained in the City of New York, whereby the unwary have been frequently imposed upon, and great Frauds committed, for prevention whereof,

“ Be It Enacted by his Excellency the Governor the Council and the General Assembly, and it is hereby enacted by the Authority of the same, That from and after the passing of this Act if any Person or Persons shall be convicted of selling or putting up for Sale within the said City, any Goods Wares or Merchandizes or any other Article or Thing whatsoever by way of Vendue Auction or Outcry at any Time after Sunset, such person or Persons so offending contrary to the true Intent and meaning of this Act shall forfeit and pay for every such Offence the Sum of five Pounds to be recovered by Action of Debt before any one of his Majesty’s Justices of the Peace in the said City and County, who is hereby required to hear and determine the same in a summary way: one half of which Forfeiture shall be to the use of the person suing for the same, and the other half to be applied for the Benefit of the Poor of the said City or County.”

The reason for this enactment is stated in the preamble. The practice of selling goods .by auction at night, when their qualities could not be accurately distinguished had frequently resulted in the unwary being imposed upon, and great frauds committed. Therefore, auctions were to be held before sunset, that is, in the-day time.

Courts should be' very slow in declaring legislation which has been frequently re-enacted during the course of a century unconstitutional, where conditions may exist which make such a statute reasonably necessary for the public welfare. As was said by this court in People v. Beakes Dairy Co. ( 222 N. Y. 416 , 426): “ To hold a statute, unconstitutional is a grave thing to do. To refuse, by so doing, to recognize a demonstrated evil and to characterize the unusual in legislation as impossible is unwise.

With modifications the Revised Statutes of 1829 embodied this law (1 R. S. chap. 17, title 1, sect. 38); it was continued by section 1991 of the Consolidation Act (Laws of 1882, chap. 410). This section of the act was amended by chapter 10 of the Laws of 1888, chapter 289 of the Laws of 1893, chapter 534 of the Laws of 1894, and continued by section 1610 of the Greater New York charter, the last amendment being that first above given, chapter 179 of the Laws of 1918. During various periods, therefore, in the hundred years, the Legislature of the State of New York has had occasion to consider the re-enactment or the amendment of this auction sales law. We must assume that there have been conditions and reasons which called the. matter to the attention of these various Legislatures and that the enactment of the laws was an attempt to meet present-day conditions and not a mere continuance through ignorance or mistake of dead legislation.

We are, therefore, called upon to examine the matter anew and to determine for ourselves whether there may be such a condition of affairs in New York city pertaining to public auctions at night as to make such legislation reasonable, and not wholly unwarranted.

In the first place, to say that because the candle and the lamp light have been succeeded by the electric light, deception and fraud cannot be perpetrated, as customers may readily examine all articles by present day artificial light, may not be true to fact. With the improvements in science and in manufacture, imitation jewelry and precious stones are much more like the real article than ever before. To detect the imitation is now much more difficult. In the examination of jewelry and precious stones, silks, fabrics, and the like, too much artificial light, or the nature of the artificial light, may be as deceiving as the candle or the lamp. The glare

Another very good reason why the Legislature might be justified in passing such an act is the prevention of the gathering of a crowd at night in or about the streets of New York, where jewelry and precious articles are being sold. Surely we are having trouble enough in this day with thugs, robbers and holdups. No one who is familiar with our court records, or the issues of the daily press, but is familiar with the fact that murders are too frequently committed for the sole purpose of robbery or theft, and that pedestrians are frequently waylaid in the streets of the city of New York and their valuables taken. This condition has called for comment in many quarters, and is well known to every judge holding the criminal courts or reviewing criminal cases. The legislators might have had before them these facts,

When we come, therefore, to consider this statute as it affects the plaintiffs’ business of selling jewelry, we can see good reason why the Legislature in the interests of peace, safety and the protection of citizens should require that the scattering of valuables made at public auction, amidst a crowd of strangers should be conducted in the daylight where the purchasers can retire and return to their homes or places of business with more safety than at night. Any legislation which tends to lessen the danger should be welcomed, not criticised.

We cannot say, therefore, that this, act of the Legisla

Then again, the business of an auctioneer, while perfectly legal, has always been affected with a public interest and subject to legislative restriction. (People ex rel. Schwab v. Grant, 126 N. Y. 473 ; Gen. Business Law, [Cons. Laws, ch. 20], art. 3.) By section 34 of the Greater New York charter, no person may carry on the business of auctioneer in the city of New York without first having obtained a license from the city clerk. Certain requisites are necessary in order to procure this license. I take it that if the Legislature may prohibit the selling of goods at public auction, except through a licensed auctioneer, or prohibit a person acting as public auctioneer, unless he first obtain a license, that it may place such restrictions upon the obtaining-of the license, or such limitation upon tin acts of the auctioneer as may be reasonable, that is, not wholly arbitrary. Can we say that the Legislature having the power of regulation, and having exercised it as to pawnbrokers (Penal Law, § 1592), second-hand dealers and junk dealers (Chap. 14, sect. 44, subd. 2, art. 4; and section 122, article 9, of the Ordinances of the City of N. Y.) and conferring by section 316 of the charter power upon the police of the city to supervise and inspect all junk-shop keepers, second-hand dealers and auctioneers, cannot prohibit the auctioneer from

Counsel for the appellants apparently admits in his brief that if the legislation were intended to regulate the auctioneer, it would be legal. He claims, however, that the legislation is not aimed at the auctioneer but at the merchant and unlawfully prevents him from selling his goods at public auction. I for one cannot see the distinction. All restrictions upon auctioneers are, in effect, a restriction upon merchants desiring to sell their goods at public auction. They cannot sell them at auction except through the licensed auctioneer. (Greater N. Y. Charter, § 34.) In this respect their rights of sale are restricted. In the same way and to the same effect is the restriction as to night auction's. It affects both the auctioneer and the merchant. It could not relate to one and not the other. In fact, the act directly bears upon the auctioneer by providing in the last sentence: “ Every auctioneer who shall violate the provisions of this section shall be deemed guilty of a misdemeanor.”

The act quoted at the beginning of this opinion makes certain exceptions. For instance, it does not apply .to books and prints, horses, live stock, etc. The appellants claim that these exceptions are so arbitrary and unreasonable as to render the whole act unconstitutional. The reasons here given by which this act may be upheld as constitutional naturally suggest that they do not apply to the class included in the exceptions, and as to which deception and theft will be no more likely at night than in the day time. (People v. Havnor, 149 N. Y. 195 -205; Soon Hing v. Crowley, 113 U. S. 703 .)

The fact that the merchant next door to the plaintiff is allowed to sell his goods at private sale at night has

The respondent makes the point that this complaint was properly dismissed, as equity will not restrain police officers from enforcing the Penal Law. This as a general proposition is true. (Buffalo Gravel Corp. v. Moore, 201 App. Div. 242 , 246; affd., 234 N. Y. 542 .) In this case indictments had been found, and it was sought by means of equity to prevent their prosecution. One court will not thus interfere with another. There are, however, numerous instances where a statute or an ordinance of a criminal nature is such an unlawful interference with the rights of property that courts of equity will restrain its enforcement in order to prevent irreparable damage. (Truax v. Raich, 239 U. S. 33 , 37; Dobbins v. Los Angeles, 195 U. S. 223 , 241; People v. Canal Board, 55 N. Y. 390 ,. 394.) In Truax v. Raich it was said: “ It is also settled that while a court of equity, generally speaking, has no jurisdiction over the prosecution, the punishment or. the pardon of crimes or misdemeanors ’ (In re Sawyer, 124 U. S. 200 , 210) a distinction obtains, and equitable jurisdiction exists to restrain criminal prosecutions under unconstitutional enactments, when the prevention of such prosecutions is essential to the safeguarding of rights of property.” (See, also, Upgrade Provision Co., Inc., v. Sherman, 266 U. S. 497 .)

Where a municipal ordinance fixing the limits within which gas works might be erected, was subsequently changed by another ordinance after work had progressed under the first ordinance, equity interfered in Dobbins v. Los Angeles, to prevent the enforcement of the last ordinance. The court said: “It is also urged by the defendants in error that a court of equity will not enjoin prosecution of a criminal case; but, as we have seen, the plaintiff in error in this case had acquired property

“ It is well settled that where property rights will be destroyed unlawful interference by criminal proceedings under a void law or ordinance may be reached and controlled by a decree of a court of equity.”

In this case the plaintiff corporation had on hand a stock of jewelry which it desired to sell after sunset by public auction. Its purpose was interfered with by the act in question. It could not thus dispose of its property. The stock of merchandise might remain on its hands undisposed of, or else sold in other ways at much loss. The complaint alleges that it will suffer irreparable loss, and as this motion for judgment oh the pleading is in the nature of a demurrer, the allegation stands admitted. We think this action was maintainable in equity.

Reference has been made to People v. Gibbs ( 186 Mich. 127 ) and Hayes v. City of Appleton ( 24 Wis. 542 ). We have not overlooked these authorities.' The ordinance or statute therein involved pertained to the auction- of all kinds and classes of goods. The decisions moreover may have rested upon local conditions not present in the large populous seaport city of New York. The conclusions reached by these courts we cannot adopt. The later case of Maercker v. City of Milwaukee ( 151 Wis. 324 ) must be read before considering the Hayes case.

The brief submitted in behalf of the parties appearing as amici curiæ states that about thirty-five of the largest cities in the United States have passed ordinances similar to the law here in question as applicable to auction sales of jewelry at night. We have not had the time or the opportunity to refer to these ordinances, but we assume that the statement would not be made by reputable

For the reasons here stated the judgment appealed from should be affirmed, with costs.

Cardozo, Pound, Andrews and Lehman, JJ., concur; Hiscock, Ch. J., and McLaughlin, J., absent.

Judgment affirmed.