People ex rel. Bryant v. Zimmerman

Sears, J.

(concurring):

The sole question involved in this appeal is the constitutionality of certain sections of the Civil Rights Law (as added by Laws of 1923, chap. 664), particularly sections 53 and 56, the significant provisions of which are as follows:

. “ § 53. * * * Every existing membership corporation, and every existing unincorporated association having a membership of twenty or more persons, which corporation or association requires an oath as a prerequisite or condition of membership, other than a labor union or a benevolent order mentioned in the Benevolent Orders Law, within thirty days after this article takes effect, and every such corporation or association hereafter organized, within ten days after the adoption thereof, shall file with the Secretary of State a sworn copy of its constitution, by-laws, rules, regulations and oath of membership, together with a roster of its membership and a fist of its officers for the current year. * * *.

“ § 56. * * * Any corporation or association violating any' provision of this article shall be guilty of a misdemeanor * * *. Any officer of such corporation or association and every member of the board of directors, trustees or other similar body, who violates any provision of this article or permits or acquiesces in the violation of any provision of this article by any such corporation shall be guilty of a misdemeanor. Any person who becomes a member of any such corporation or association, or remains a member thereof, or attends a meeting thereof, with knowledge that such corpora*421tion or association has failed to comply with any provision of this article, shall be guilty of a' misdemeanor.”

Obviously the justification for this enactment must be sought in that broad field of legislative authority inherent in sovereignty to provide for the life, safety, health, morals and welfare of society, generally called the police power.” Statutes adopted for such purposes usually infringe to a greater or less extent upon the liberty or property of individuals, but the guaranties of the Federal and State Constitutions in respect to liberty and property (U. S. Const. 14th Amendt. § 1; N. Y. Const. art. 1, § 6) are not absolute bub reach their limit when the general welfare runs counter to their assertion. (Health Department v. Rector, etc., 145 N. Y. 32; Bertholf v. O’Reilly, 74 id. 509.) The line is frequently difficult to draw between the valid exercise of the police power and the unconstitutional deprivation of liberty and property. (People v. Williams, 189 N. Y. 131; People v. Charles Schweinler Press, 214 id. 395; Wright v. Hart, 182 id. 330; Klein v. Maravelas, 219 id. 383.) We start in every case, however, with the presumption in favor of the constitutionality of the statute. The Legislature is endowed with wide discretionary powers to determine both whether evil threatens the general welfare and what means should be adopted to defeat it. The determination of these matters is generally legislative and not judicial. “ It is a sufficient basis for legislative action if only there are reasonable grounds for belief that the evil may occur, and even though there be ‘ an earnest conflict of serious opinion on the subject/ ” Judicial interference with the execution of the statute is, therefore, unwarranted unless it appears that no evil can with reason be thought to exist or to be apt to come into éxistence, or that the means adopted cannot with reason be considered adapted to remedy or prevent the evil, or unless the remedy is unduly oppressive or confiscatory. (Matter of Stubbe v. Adamson, 220 N. Y. 459, 469; People ex rel. Durham Realty Corporation v. La Fetra, 230 id. 429.)

Applying these principles to the present case, we must first determine whether there is an evil actually present or reasonably to be anticipated, in the existence of associations," incorporated or unincorporated, having an oath-bound membership. Although there was no legislative commission to investigate the subject before the passage of the act, yet we must assume that the Legislature did investigate and took into consideration in the enactment all matters of general or widespread notoriety and belief. (Matter of Stubbe v. Adamson, supra; Safee v. City of Buffalo, 204 App. Div. 561.)

The opportunity for such associations inimical to the public, welfare is always present. At other times and in other countries *422crime and disorder have without doubt been fostered by oath-bound societies. Witness the Camorra; the Mafia; the Boxers. Still other societies of a somewhat similar character have existed for political purposes, such as the Carbonari, the Nihilists, the Fenians, and the Tugendbund — and even for judicial purposes as in the case of the Fehmic Courts. In our own country in the late 60’s and the early 70’s of the last century, the well-known activities of the former Knights of the Ku Klux Klan and the Knights of the White Camelia, and of like organizations, resulted in the exercise by such bodies of a very considerable extra-legal authority, often, if we can believe the reports, by the use of intimidation and terrorism. At about the same time the disorders of the Molly Maguires occurred in the West and in Pennsylvania. (Cf. C. W. Heckethorn’s Secret Societies of All Ages & Countries [2d ed.], London, 1897.) We already have on our statute books other penal laws against assemblies for purposes subversive of the principles of our government. • (Penal Law, § 162.) The reputed activities at the present time of one such society are generally believed to be a cause for fear with many people. At least one other State has deemed legislation on the subject similar to that involved here to be necessary. (Louisiana Acts of 1924, No. 2.) The fundamental peril from such bodies rests in their secrecy and anonymity. If their purposes were known, if their members were subj feet to recognition, they would promptly become harmless and generally disappear. The Legislature in the present act, therefore, has adopted a remedy which has a direct relation to an evil which may reasonably be thought to exist or threaten. (Safee v. City of Buffalo, supra; Samuels v. McCurdy, 267 U. S. 188.) These mild regulatory terms of the statute are far from oppressive or confiscatory. The penal provisions quoted above are well adapted to enforce compliance.

The more serious criticism of the statute by the appellant is upon the theory that by reason of the exceptions specified in the act, the relator who attended a meeting of the Ku Klux Klan with knowledge that that association, although subject to the provisions of this act, had not complied therewith, was denied the equal protection of the laws. (U. S. Const. 14th Amendt. § 1; N. Y. Const. art. 1, § 1.) The constitutional guaranties invoked do not forbid classification. It is only when classification becomes unreasonable and palpably arbitrary that it offends the Federal or State Constitution. (Radice v. New York, 264 U. S. 292; Adkins v. Children’s Hospital, 261 id. 525; People v. Klinck Packing Co., 214 N. Y. 121; Connolly v. Union Sewer Pipe Co., 184 U. S. 540.) The appellant in his argument here calls attention to the provision (a) *423that societies of less than twenty members are not affected by the statute, and (b) that labor unions and benevolent orders mentioned in the Benevolent Orders Law are excepted from its operation. College fraternities and sororities have also been excepted by an amendment just enacted. (Laws of 1925, chap. 251, amdg. Civil Rights Law, § 53.) I do not find - that any one of these exceptions is necessarily arbitrary. It is easy to see a reasonable basis for each. Unless such a society has twenty members, its activities might be thought too insignificant, its influence too negligible to require regulation. Classification based on numbers is not necessarily unreasonable or arbitrary. (People v. Klinck Packing Co., supra; Matter of Europe v. Addison Amusements, 231 N. Y. 105.) Labor unions have a recognized lawful purpose. The benevolent orders mentioned in the Benevolent Orders Law have already received legislative scrutiny and been granted special privileges so that the Legislature may well consider them beneficent rather than harmful agencies. College societies are known to be social and scholastic and may well be deemed innocuous and unimportant in the general life of the community. The Legislature has determined that all these excepted bodies of which the purposes are known, are innocent or at least not harmful in the same way as those subject to the regulation may be or become. I cannot say that it was wrong in this.

It is also urged that the statute requires the members of the society to give evidence against themselves, and, therefore, violates both the Federal and State Constitutions. (U. S. Const. 5th Amendt.; State Const. art. 1, § 6.) This is patently untenable. Upon filing the information, the existence of the society becomes lawful. It is a mere prerequisite to the carrying on of its functions, not a disclosure of crime or of any element of wrongdoing. Furthermore, as to the Federal Constitution, it is well settled that the first ten Amendments were not intended to limit the powers of the State government in respect to their own people, but to operate on the National Government alone. (Spies v. Illinois, 123 U. S. 131, 165, 166; Matter of Mohawk Overall Co., 210 N. Y. 474, 478.) Somewhat similar provisions occur in the regulation of certain business enterprises. A person doing business under an assumed name must file, a declaration in the county clerk’s office. (Penal Law, § 440. See, also, Partnership Law of 1909, §§ 20, 21, 22; Partnership Law of 1919, § 80, as amd. by Laws of 1923, chap. 268; Id. §§ 81, 82.) Every publisher of a newspaper, magazine or other periodical must print the full name and address of the owner in every issue. (Gen. Business Law, § 330 et seq.) Insurance and real estate brokers must register and take out licenses. (Ins. Law, § 142, added by Laws of 1913 chap. 7, *424as amd. by Laws of 1922, chap. 330; Real Prop. Law, § 440-a, added by Laws of 1922, chap. 672, as amd. by Laws of 1924, chap. 579; Hauser v. North British & Mer. Ins. Co., 206 N. Y. 455.) None of these statutes has been attacked as compelling self-incrimination, although the validity of the last-mentioned act has been challenged as an unlawful exercise of the police power, and its validity sustained at the Special Term. (Groetzinger v. Forest Hills Terrace Corp., 123 Misc. 274.)

This appeal does not require a consideration of sections 54 and 55 of the Civil Bights Law. If those sections contain any provision in conflict with our Federal and State Constitutions, such provisions would not affect the validity of sections 53 and 56. They are not so closely bound together as to be incapable of separation. (Connolly v. Union Sewer Pipe Co., supra; Buffalo Gravel Corp. v. Moore, 201 App. Div. 242; affd., 234 N. Y. 542.)

The propriety of this legislation and its necessity are not open to judicial consideration.

I find that the Legislature in enacting the statute did not transcend the limits of its power.

The order should be affirmed, with costs.

All concur in both opinions except Davis, J., who dissents in an opinion. Present — Htjbbs, P. J., Clark, Davis, Sears and Taylor, JJ.