This enactment can only find its justification, in my opinion, in an attempted exercise of the *Page 206 police power of the state. I cannot suppose that it is to be defended as a proper or reasonable extension of the "Sunday law" of the state. That law includes in the works of necessity, which it permits, "whatever is needful for the good order, health or comfort of the community." The occupation of the barber has not been deemed unlawful under it and it would look like a relapse into the narrow groove of earlier Puritanical belief, if we should now regard it as inconsistent with the due observance of the Sabbath day. Conceding, as I do, to the legislature a wide range in the exercise of what is known as the police power, I think that, in this piece of legislation, it has overstepped the limits and has infringed upon the constitutional guarantees, which, in effect, assure to us the enjoyment of our liberty and of our property in all reasonable ways. While it has been frequently observed that it is difficult to define the limits of the police power of the state, it is, nevertheless, agreed that an enactment in that direction must be one having reference to the comfort, the safety or the welfare of society. A line of decisions in the Federal and state courts has erected these as monuments to denote the boundaries of this extraordinary power, which is deemed to reside in the legislative agents of the People of the state. We know that this power is not above the Constitution; but that it is subject to it and when legislation violates any of its provisions, in the letter or the spirit, it is the duty of the courts, upon the faithful performance of which the People confidently rely, to interpose the barrier of their judgments against its enforcement. Under the constitutional guaranty, every one is at liberty to follow any lawful avocation, which is not injurious to the community, and to enjoy its fruits and any interference by the legislature, under the guise of a police regulation, must be seen by the court to have some real reference to the common good. The mere declaration of the legislature is not conclusive. It cannot seriously be said that the defendant's business is one that conflicts with the comfort, safety, or welfare of the community, when carried on upon the first day *Page 207 of the week, called Sunday. It is in its nature a peaceable occupation and, as usually conducted, cannot and does not interfere with the quiet of the day, or with the performance by any citizen of the duties of the day, however appointed. It is one that not merely conduces to the comfort of the individual, but promotes his decent appearance as a member of the community and it is quite impossible to conceive of the business as, in any reasouable way, militating against the requirements of society with respect to the Sabbath day.
The learned justices of the Appellate Division have thought that it is discretionary with the legislature to enact laws for the regulation of the observance of the Sabbath. That discretion does exist, so far as to prevent what is, or amounts to, a desecration of the day, as was decided in People v. Moses (140 N.Y. 215); but it should not be deemed to exist, so far as to interfere with a peaceable calling, and one more or less necessary to the comfort and decency of members of the community.
But this legislation, in my judgment, is particularly objectionable and deserving of judicial condemnation, for the reason that it discriminates unreasonably in dealing with those who are engaged in the pursuit of a lawful avocation. It certainly must be implied in our governmental system that legislation shall be equal as to all and just in its commands. If that were not so, government by the people for the people would exist but in name. The fundamental guarantees, on which rest our social structure, would be delusive. The legislature cannot act arbitrarily, and if this act is to be defended as a proper exercise of the police power, then it is without shadow of excuse, in discriminating against barbers who do not reside in the city of New York, or in the village of Saratoga Springs. Legislation which discriminates in this wise is not in harmony with the idea of our democratic form of government. Where it touches the pursuit by individuals of a lawful avocation, it should act with impartial hand; affecting all alike and subjecting every one interested to the same restraints for the sake of the common good. There is no sensible or plausible reason for the discrimination made by this law. *Page 208 It is unnecessary, unreasonable and hostile to the true policy of the state. Regarded as an exercise of the police power it cannot be justified as either necessary for the good of society, or as conducive to its welfare; and it is violative of constitutional principles; in that it restrains unduly and unequally the liberty of those engaged in a lawful business.
I think the judgment appealed from should be reversed and that the defendant should be discharged.