Darius v. Apostolos

Mr. Justice Teller

dissenting: The majority opinion declines to follow Burks v. Bosso, 180 N. Y. 341, because of an alleged defect in the reasoning, in that the court applied the rule of ejusdem generis to an enumeration of places of business of diverse character. That rule of construction is said to be eliminated, but it seems to me that it is the basis of the conclusion announced. It is pointed out that barber shops and bootblacking stands have a common feature, in that both are devoted to the rendering of personal service. Hence it is concluded that the specifying of barber shops justified the court in construing bootblacking stands as coming within the meaning of the general words “places of public accommodation.”

I submit that this is an application of the supposedly eliminated rule of ejusdem generis. But, the rule is in fact applicable, and was properly applied in the New York case.

Classification of places of business does not depend upon their being similar in all respects. A single characteristic in each one may be sufficient to put them in one class. This is recognized in the opinion, the characteristic being the rendering of personal services. In this case, the places of business mentioned are, in their nature or by long usage, subject to regulation and supervision in the interest of the public health, safety, or general welfare. This common characteristic, i. e., subjection to public control, makes them all of one class. As this is the only classification of which *329the places of business are, apparently, capable, it follows that the general words should be held to apply only to places of that class. This is strictly in accord with sound reason.

No reason is advanced to show that the public has any concern in the management of a business which, in no way, affects the public health, safety or morals. Why should a bootblacking stand, any more than a news stand, be subject to this regulation?

The rule that a penal act is to be strictly construed is admitted, but not applied. The defendant’s place of business is brought within the statute, and his act made a misdemeanor, when the intent of the legislature to include such business is by no means clear.

Although the members of the New York court of appeals, after careful consideration, were of the opinion that their statute, practically identical with ours, did not include bootblacking stands, this defendant is presumed to know that our statute includes his business, and he is to pay the plaintiff not less than $50 and possibly $500, and be subject also, to a possible term in the penitentiary. Why? Because he did not draw the proper inference from general words following special terms. Otherwise stated, a penitentiary offense is imputed to him by implication, a thing which has many times been denounced. “Penal statutes can never be extended by mere implication to either persons or things not expressly brought within their terms. * * * It is a principle in the construction of statutes that the legislature does not intend the infliction of punishment, or to interfere with the liberty or rights of the citizen, * * . * by doubtful language; but will in such cases express itself clearly, and intends no more than it so expresses.” Sutherland on Statutory Construction, sec. 350. The text is supported by numerous authorities.

This is a case eminently fitted for the application of the rule, said to be coeval with municipal law, that “Purely statutory offenses shall not be established by implication, and that acts otherwise innocent and lawful, do not become crimes, unless there is a clear and positive expression of *330the legislative intent to make them criminal.” People v. Phyfe, 136 N. Y. 554, 32 N. E. 978, 19 L. R. A. 141.

Decided December 1, A. D. 1919. Rehearing denied June 7, A. D. 1920.

In Rex v. Bond, 1 B. and Ald. 390, it is said: “It would be extremely wrong that a man should, by a long train of conclusions, be reasoned into a penalty when the express words of the act of parliament do not authorize it.” The rule is also that “if the words are equally capable of a construction that would, and. one that would not, inflict a penalty”, the latter construction should be adopted. Sutherland on Statutory Construction, sec. 352.

Here by a process of reasoning, the defendant in error is held to have committed' an offense. No intent to include bootblacking stands is expressed in the law, nor is it even fairly implied. The decision violates rules of law which have been developed through centuries for the protection of the rights and liberty of the people. The judgment of the trial court was right and ought to be affirmed.

I am authorized to state that Mr. Justice Scott concurs in the views above expressed.