S. E. Nichols Herkimer Corp. v. Village of Herkimer , 34 A.D.2d 371 ( 1970 )

Goldman, P. J.

In this declaratory judgment-action, plaintiff-appellant seeks to have an ordinance, which made it unlawful, with some few exceptions, to sell any article on Memorial Day and Independence Day, declared unconstitutional, illegal and invalid. Special Term denied appellant’s summary judgment motion and granted summary judgment to respondent, holding the ordinance “ to be constitutional, legal, valid and effective ”. The ordinance prohibited commercial and business activities and provided that it was ‘ ‘ unlawful ’ ’ to sell or offer any article for sale during the hours of 9:00 a.m. to 6:00 p.m., which are generally accepted business hours, on the two holidays.

The critical issue is whether the ordinance is essentially a regulatory or prohibitory statute. We find it prohibitory in scope and therefore hold that it exceeds the powers granted to the village by section 86 of the General Municipal Law (Jewish Consumptives’ Relief Soc. v. Town of Woodbury, 230 App. Div. 228, 234, affd. 256 N. Y. 619). The authority of the village is derived from express grant and it may not exceed the specific powers granted to it by the Legislature. Section 90 of the Village Law confers power to enact ordinances “ not inconsistent with existing law ” for the preservation of good order, peace, health, safety and welfare of the inhabitants of the village. A provision prohibiting sale of articles for a reasonable period would be proper and valid in the interest of avoiding conflict with appropriate ceremonies or formal observance of the national holidays, but the restrictive period should not be so unduly long as to prohibit and suppress rather than to regulate (Peace v. McAdoo, 110 App. Div. 13, 15; People v. Martins of Hempstead, 55 Misc 2d 802, 805). “ Prohibition is not the equivalent of regulation ’ ’ (62 C. J. S., Municipal Corporations,. § 161).

As indicated, we are concerned with the “welfare” of the village, and its welfare, as well as that of the entire Nation, is importantly served by due observance of our national holidays. However, the welfare of a community is best served only where laws are enacted which are ‘‘ not * # * unreasonable, arbitrary or capricious, and * # * the means selected * * * have a real and substantial relation to the object sought to be attained.” (Nebbia v. New York, 291 U. S. 502, 525.) This “means test” mandates that legislation be reasonably suited and rationally related to a valid purpose. “ The judicial function is exhausted with the discovery that the relation between means and end is not wholly vain and fanciful, an illusory pretense.” (Williams v. Mayor, 289 U. S. 36, 42; cf. Grossman v. Baumgartner, 17 N Y 2d 345.)

In view of our determination that by reason of its prohibitory nature the ordinance is invalid, we do not reach the challenge to its constitutionality. “ It has been stated that the invariable practice of the courts is never to consider the constitutionality of state legislation unless it is imperatively required.” (16 Am. Jur. 2d, Constitutional Law, § 111, p. 298; Rosenberg v. Fleuti, 374 U. S. 449, 451; American Inst. for Imported Steel v. County of Erie, 32 A D 2d 231, 234.) Our decision is bottomed squarely upon our holding that the ordinance is invalid under section 86 of the General Municipal Law.

The judgment (denominated order) denying plaintiff-appellant’s motion for summary judgment should be reversed and judgment entered granting appellant’s motion for summary judgment declaring the ordinance invalid.