While this court has very properly held that the Christian Sabbath is one of the civil institutions of the state and that the legislature may regulate its observance and prevent its desecration (People v. Moses, 140 N.Y. 214) I think the case at bar presents an instance where the lawmakers have overstepped the bounds of legitimate legislation in the alleged exercise of the police power. Chapter 823, Laws of 1895, provides substantially that any person who engages in the business of a barber on the first day of the week shall be deemed guilty of a misdemeanor; provided that in the city of New York and the village of Saratoga Springs barber shops may be kept open until one o'clock of the afternoon of Sunday.
The Penal Code provides (§ 263) that all labor on Sunday is prohibited, excepting the works of necessity or charity.
These works are then defined as including "whatever is needful during the day for the good order, health or comfort of the community." The legislature by permitting barber shops to remain open for a portion of the first day of the week in two localities of the state necessarily proceeded upon the theory that the business of the barber is a work of necessity contributing to the comfort of the community.
I think it clearly within the power of the legislature, in order to regulate the observance of the Sabbath, to control the hours during which a barber shop may be kept open on the first day of the week even if the comfort of the community may be to some extent interfered with in so doing.
This principle is recognized by the Penal Code (§ 267), which *Page 209 prohibits the public sale of any property upon Sunday, but allows articles of food to be sold and supplied before ten o'clock in the morning and certain articles of personal property to be sold during the entire day.
If then the business of the barber is a work of necessity contributing to the comfort of the community, can it be a reasonable exercise of the police power to arbitrarily extend the comfort of a Sunday morning shave to the inhabitants of the city of New York and the village of Saratoga Springs and deny it to the rest of the state including great cities like Brooklyn and Buffalo?
I think the act under consideration is vicious class legislation and in direct violation of the fourteenth amendment of the Constitution of the United States, which provides that no state "shall deprive any person of life, liberty or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws."
The act is, in my judgment, a specimen of grotesque and absurd legislation resting upon no principle of public policy and utterly indefensible under any reasonable or proper exercise of the police power.
The Supreme Court of the United States has held that the fourteenth amendment does not impair the police power of a state (Barbier v. Connolly, 113 U.S. 27), and it has further decided that it does not prohibit legislation which is limited either in the objects to which it is directed, or by the territory within which it is operated. (Hayes v. Missouri,120 U.S. 68, 71.) There is, however, nothing in these adjudications which will sustain the act under consideration. In the exercise of the police power the legislature is vested with the amplest discretion, the precise limits of which cannot be accurately defined, but there is a point beyond which that discretion cannot be exercised.
The language of Judge PECKHAM in delivering the opinion of this court in People v. Gillson (109 N.Y. at page 401), is apposite. The learned judge, referring to the Matter of Jacobs (98 N.Y. 98), said: "As is also said in the last *Page 210 case, it is generally for the legislature to determine what laws and regulations are needed to protect the public health and serve the public comfort and safety, and if its measures are calculated, intended, convenient or appropriate to accomplish such ends the exercise of its discretion is not the subject of judicial review. But those measures must have some relation to these ends. Courts must be able to see, upon a perusal of the enactment, that there is some fair, just and reasonable connection between it and the ends above mentioned. Unless such relation exist the enactment cannot be upheld as an exercise of the police power."
Can it be said, after a perusal of the act in question, that its provisions are a reasonable and proper exercise of the police power?
I think not; it is an arbitrary, discriminating exercise of that power which ought not to be tolerated.
The good offices of the barber, being a work of necessity needful on Sunday for the comfort of the community, should be extended to all portions of the state alike.
It is true the legislature might allow the barber shops to remain open longer on Sunday in a great city than in a country village, but subject to reasonable regulation as to hours all barbers and their customers are entitled to the equal protection of the laws.
The claim that the work of the barber is one of necessity, needful during the early hours of Sunday for the comfort of the community, rests upon years of practical construction of the various laws regulating the observance of the Sabbath.
I think that chapter 823, Laws of 1895, is void as violating the fourteenth amendment of the Constitution of the United States, and for the further reason that it is not a proper exercise of the police power.
The judgment appealed from should be reversed.
All concur, with VANN, J., for affirmance, except GRAY and BARTLETT, JJ., who dissent, each reading for reversal, and HAIGHT, J., who concurs in both dissenting opinions.
Judgment affirmed. *Page 211