The main ground upon which the defendant asks us to reverse the judgment against him is that the statute under which he was convicted is in conflict with that provision of the Constitution which provides that "no person shall be deprived of life, liberty or property without due process of law." (Const. art. 1, § 6.) The statute in question, entitled "An act to regulate barbering on Sunday," provides that "any person who carries on or engages in the business of shaving, hair cutting or other work 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 and the work of a barber performed therein until one o'clock of the afternoon of the first day of the week." (L. 1895, chap. 823.)
The defendant claims that this statute deprives him to a certain extent of his "liberty," by preventing him from carrying on a lawful calling as he wishes, and also of his "property," by preventing the free use of his premises, tools and labor, and thus rendering them less productive. It is not claimed that his occupation is of a noisy nature or that he so carried on his business as to disturb the peace, quiet and good order of the neighborhood, or that the act for which he was convicted, if done on any day of the week other than the first, or at any hour of that day prior to one o'clock in the afternoon, would have been a violation of law. Nor is it claimed that the conviction was authorized by the common law, or that it was based upon any statute except the one above cited, and, indeed, the judgment of the Court of Special Sessions expressly refers to that act and adjudges the defendant guilty of a misdemeanor because he violated its command.
The phrase "due process of law" is not satisfied by a judgment pronounced, after an opportunity to be heard, by a court *Page 199 of competent jurisdiction in accordance with the provisions of a statute, unless that statute accords with the provisions of the fundamental law. (Wynehamer v. People, 13 N.Y. 378, 393.) In a broad sense, whatever prevents a man from following a useful calling is an invasion of his "liberty," and whatever prevents him from freely using his lands or chattels is a deprivation of his "property." (Bertholf v. O'Reilly, 74 N.Y. 515; In reJacobs, 98 N.Y. 98, 105.) Yet, during the history of our state many laws have been passed which, to some extent, have interfered with the right to liberty and property, but their accord with the Constitution has seldom been questioned, and, when questioned, has been generally sustained. The power of taxation, the right to preserve the public health, to protect the public morals and to provide for the public safety may interfere somewhat with both liberty and property, yet proper statutes to effect these ends have never been held to invade the guarantees of the Constitution. While the confinement of the insane or of those afflicted with contagious diseases infringes upon personal liberty, and the destruction of buildings to prevent the spread of fire, the exercise of the power of eminent domain and the prevention of cruelty to animals encroach upon the right to property, still the proper exercise of these powers, under the authority of the legislature, although constant and known of all men, gives rise to no question of moment under the Constitution. The sanction for these apparent trespasses upon private rights is found in the principle that every man's liberty and property is, to some extent, subject to the general welfare, as each person's interest is presumed to be promoted by that which promotes the interest of all. Dependent upon this principle is the great police power, so universally recognized, but so difficult to define, which guards the health, the welfare and the safety of the public. While this power may not be employed ostensibly for the common good, but really for an ulterior purpose, when its object and effect are manifestly in the public interest, as was said in the Jacobs case, "it is very broad and comprehensive, and * * * under *Page 200 it the conduct of an individual and the use of property may be regulated so as to interfere, to some extent, with the freedom of the one and the enjoyment of the other." (p. 108.) In the exercise of this power the legislature has the right, generally, to determine what laws are needed to preserve the public health and protect the public safety, yet its discretion in this respect is not wholly without limit, for our courts have been steadfast in holding that the statute must have some relation to the general welfare; that the purpose to be reached must be a public purpose, and that "the law must in fact be a police law." Thus it has been held that "an act to improve the public health by prohibiting the manufacture of cigars and preparation of tobacco in any form in tenement houses in certain cases" (L. 1884, chap. 272), was unconstitutional, because it did not tend to promote the public health, and that this was not the end actually aimed at. (In re Jacobs, supra.) For the same reason "An act to prevent deception in sales of dairy products" (L. 1881, ch. 202), was declared to conflict with the Constitution, as it absolutely prohibited an innocent industry that was not fraudulently conducted, solely for the reason that it competed with another and might reduce the price of an article of food. (People v.Marx, 99 N.Y. 377.) When, however, the act was so changed as to make the substance accord with the title (L. 1885, ch. 183), it was held to be constitutional. (People v. Arensberg, 105 N.Y. 123. ) In a recent case, an act prohibiting the sale of any article of food upon the inducement that something would be given to the purchaser as a premium or reward (L. 1887, ch. 691), was held to be an unauthorized, invasion of the rights of property and an improper exercise of the police power of the State. (People v. Gillson, 109 N.Y. 389.) It was expressly declared in that case that the 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 common good, and that unless such relation exists the statute cannot be upheld as an exercise of the police power.
Subject, however, to the limitation that the real object of *Page 201 the statute must appear, upon inspection, to have a reasonable connection with the welfare of the public, the exercise of the police power by the legislature is well established as not in conflict with the Constitution. (Metropolitan Board of Health v. Heister, 37 N.Y. 661, 669; Matter of Deansville CemeteryAssociation, 66 N.Y. 569; In re Ryers, 72 N.Y. 1, 7; Peopleex rel. Kemp v. D'Oench, 111 N.Y. 359; People v. Ewer,141 N.Y. 129; People ex rel. Neehamcus v. Warden, etc., 144 N.Y. 529;Health Department v. Rector, etc., 145 N.Y. 32.) When thus exercised, even if the effect is to interfere to some extent with the use of property, or the prosecution of a lawful pursuit, it is not regarded as an appropriation of property or an encroachment upon liberty, because the preservation of order and the promotion of the general welfare, so essential to organized society, of necessity involve some sacrifice of natural rights. (Phelps v. Racey, 60 N.Y. 10, 14; Prentice v. Weston,111 N.Y. 460.)
The vital question, therefore, is whether the real purpose of the statute under consideration has a reasonable connection with the public health, welfare or safety. The object of the act, as gathered from its title and text, was to regulate the prosecution of a particular trade on Sunday, by prohibiting it from being carried on as a business, on that day, except in two localities to which the prohibition applies only after a certain hour. It does not require the observance of the Sabbath as a holy day, or in any sense as a religious institution, as is evident from the fact that the entire day is left open to all secular employments but one, and a part of the day, in certain places, to that. There is nothing in the act to prevent the defendant from carrying on his trade "in any manner or in any place that he pleases. He is simply prohibited from carrying on that trade upon Sunday."
The peculiar character of the first day of the week, not simply on account of the obligations of religion, but as a day of rest and recreation, has been recognized for time out of mind both by the legislature and the courts Statutes passed *Page 202 upon the subject while we were a colony of Great Britain, as well as under the various Constitutions in force since our organization as a State, have, so far as appears, been uniformly enforced by the courts. (29 Car. II, c. 7; 2 Green. 89; Andrews, 467; 1 R.L. 194; 2 R.S. 675, § 70; L. 1788, ch. 42; L. 1801, ch. 34; L. 1847, ch. 349; L. 1883, ch. 358; Penal Code, § 263.)
Similar laws in other States, and especially those which require the closing of places of business on Sunday, have generally been sustained. (People v. Bellet, 99 Mich. 151;Voglesong v. State, 9 Ind. 112; Shover v. State,10 Ark. 259; Warner v. Smith, 8 Conn. 14; Bloom v. Richards,2 Ohio St. 387; Specht v. Commonwealth, 8 Pa. St. 312;Commonwealth v. Has, 122 Mass. 40; Bohl v. State, 3 Tex. App. 683[3 Tex.Crim. 683][3 Tex.Crim. 683]; Cooley's Cons. Lim. (5th ed.) 589, 726; Tiedeman's Lim. of Police Power, 183; Hare's Am. Cons. Law, 766.)
While questions have been raised as to noiseless and inoffensive occupations that can be carried on by one individual without requiring the services of others, as well as to persons who observe the seventh instead of the first day of the week, still the rule is believed to be general throughout the Union, although not generally enforced, that the ordinary business of life shall be suspended on Sunday, in order that thereby the physical and moral well-being of the people may be advanced. The inconvenience to some is not regarded as an argument against the constitutionality of the statute, as that is an incident to all general laws. Sunday statutes have been sustained as constitutional almost without exception, the most notable instance to the contrary, Ex parte Newman (9 Cal. 502), decided by a divided court in an early day in California, having been subsequently overruled by the courts of that state. (Ex parteAndrews, 18 Cal. 685; Ex parte Koser, 60 Cal. 202.)
The leading case in our own state upon the subject is that ofLindenmuller v. People (33 Barb. 548), in which Judge ALLEN discussed the common law as well as legislation affecting the Sabbath with great force and clearness. He *Page 203 held, in substance, that the body of the Constitution recognizes Sunday as a day of rest and an institution to be respected, by not counting it as a part of the time allowed to the governor for examining bills submitted for his approval; that the Sabbath exists as a day of rest by the common law without the necessity of legislative action to establish it; and that the legislature has the right to regulate its observance as a civil and political institution. That case was expressly approved in Neuendorff v.Duryea (69 N.Y. 557, 561, 563) and was referred to as one "which has never been questioned in a court of higher or equal authority," and "as declaring the law of this state." It was cited with approval in People v. Moses (140 N.Y. 214, 215), where Judge EARL, speaking for a majority of the court, said: "The Christian Sabbath is one of the civil institutions of the state, and that the legislature for the purpose of promoting the moral and physical well-being of the people and the peace, quiet and good order of society, has authority to regulate its observance and prevent its desecration by any appropriate legislation is unquestioned." While works of charity and necessity have usually been excepted from the effect of laws relating to the Sabbath, and sometimes, also, those persons who keep another day of the week, still quiet pursuits have not, even when they can be carried on without the labor of others, because general respect and observance of the day, so far as practicable, have been deemed essential to the interest of the public, including as a part thereof those who prefer not to keep the day, as their health and morals are entitled to protection, even against their will, the same as those of any other class in the community. According to the common judgment of civilized men, public economy requires, for sanitary reasons, a day of general rest from labor, and the day naturally selected is that regarded as sacred by the greatest number of citizens, as this causes the least inconvenience through interference with business. (Lindenmuller v. People, supra.)
It is to the interest of the state to have strong, robust, healthy citizens, capable of self-support, of bearing arms, and *Page 204 of adding to the resources of the country. Laws to effect this purpose, by protecting the citizen from overwork and requiring a general day of rest to restore his strength and preserve his health, have an obvious connection with the public welfare. Independent of any question relating to morals or religion, the physical welfare of the citizen is a subject of such primary importance to the state, and has such a direct relation to the general good, as to make laws tending to promote that object proper under the police power, and hence valid under the Constitution, which "presupposes its existence, and is to be construed with reference to that fact." (Village of Carthage v.Frederick, 122 N.Y. 268, 273.)
The statute under discussion tends to effect this result, because it requires persons engaged in a kind of business that takes many hours each day, to refrain from carrying it on during one day in seven. This affords an opportunity, recurring at regular intervals, for rest, needed both by the employer and the employed, and the latter, at least, may not have the power to observe a day of rest without the aid of legislation. As Mr. Tiedeman says in his work on Police Powers: "If the law did not interfere, the feverish, intense desire to acquire wealth, * * * inciting a relentless rivalry and competition, would ultimately prevent not only the wage-earners, but likewise the capitalists and employers themselves, from yielding to the warnings of nature and obeying the instinct of self-preservation by resting periodically from labor." (Tiedeman's Lim. Police Powers, 181.) As barbers generally work more hours each day than most men, the legislature may well have concluded that legislation was necessary for the protection of their health.
We think that this statute was intended and is adapted to promote the public health, and thereby to serve a public purpose of the utmost importance by promoting the observance of Sunday as a day of rest. It follows, therefore, that it does not go beyond the limits of legislative power by depriving any one of liberty or property within the meaning of the Constitution. *Page 205
The learned counsel for the defendant, however, criticises the act in question as class legislation, and claims that it is invalid under the fourteenth amendment to the Constitution of the United States, because it denies to barbers who do not reside in New York or Saratoga the equal protection of the laws. That amendment does not relate to territorial arrangements made for different portions of a state, nor to legislation which, in carrying out a public purpose, is limited in its operation, but within the sphere of its operation affects alike all persons similarly situated. (Missouri v. Lewis, 101 U.S. 22, 30;Barbier v. Connolly, 113 U.S. 27, 31.) It was not designed to interfere with the exercise of the police power by the state for the protection of health, or the preservation of morals. (Powell v. Pennsylvania, 127 U.S. 678, 683.) The statute treats all barbers alike within the same localities, for none can work on Sunday outside of New York and Saratoga, but all may work in those places until a certain hour. All are, therefore, treated alike under like circumstances and conditions, both in the privileges conferred and in the liabilities imposed. (Hayes v.Missouri, 120 U.S. 68.) As was said by the learned Appellate Division in deciding this case: "If the legislature has power to regulate the observance and prevent the desecration of the Sabbath, it has the power to say what acts in the different localities of the state it is necessary to prohibit to accomplish this purpose. It is quite conceivable that an act in one locality, thickly settled, should be prohibited which in sparsely settled districts of the state could be allowed, and for this reason an act might be objectionable in one district, but not in another. All of these regulations have in view the proper observance of the day, and are within the discretion of the legislature."
We think that the statute violates no provision of either the Federal or State Constitution, and that the judgment appealed from should, therefore, be affirmed.