The defendant is charged with violating section 3 of General Ordinance 152-1957, as amended by General Ordinance 23-1963, of the City of Yonkers. The ordinance now is designated as chapter 66 of the Code of Ordinances of the City of Yonkers.
It is alleged in the information, that on May 30, 1967, at about 4:25 p.m., the defendant, the manager of Kaufman Carpets, Inc., store located at Cross County Shopping Center, in Yonkers, sold or offered for sale, carpets or carpeting at the store in violation of the ordinance.
Chapter 66-1 provides as follows: "66-1. Memorial Day observance. The legal holiday known as Memorial Day, being by general consent set apart for rest, repose and patriotic observances and uses, and the observance thereof being for the general welfare and health of the community, the doing of certain acts hereinafter specified, which are deemed serious interruptions and desecrations of the repose and patriotic liberty and sentiment of the community, are prohibited."
Chapter 66-3 reads: "66-3. Public traffic on Memorial Day. All manner of public selling or offering for sale of any property upon such holiday is prohibited, except as follows:"
Section 3 then specifies certain exceptions from the prohibition contained above. However, the sale of, or the offering for sale, of carpets or carpeting, is not enumerated among the exceptions specified therein.
The defendant moves to dismiss the information on the ground that there is no authority in law which authorizes the City of Yonkers to "prohibit" the business activities of the defendant on Memorial Day, May 30, 1967.
The issue is limited to the question of whether or not the word "regulating" contained in section 86 of the General Municipal Law includes the authority to the city to "prohibit" the business activities of the defendant on Memorial Day.
Section 86 of the General Municipal Law reads as follows: "§ 86. Regulation of commercial and business activities on Memorial day and Independence day. The municipal officers and boards in the several cities, towns and villages of this state now having the authority to enact ordinances, may adopt ordinances regulating the nature of commercial and business activities that may be conducted on Memorial day and Independence day and the hours within which the various types of commercial and business activities may be conducted on Memorial day and Independence day. Provision shall be made in such ordinances for punishment of violations thereof."
It is contended by the defendant, that if the Legislature had intended to authorize municipalities to "prohibit" commercial and business activities on Memorial Day, the specific word of prohibition would have been employed in section 86, in a manner similar to that which is found in the Sabbath Law (General Business Law, art. 2, §§ 2, 8 [formerly Penal Law, §§ 2140, 2146]).
On that premise, the defendant contends that the prohibition against the sale of carpets on Memorial Day contained in section 66 of the Code of Ordinances of the City of Yonkers exceeds the power given to the city by the provisions of section 86 of the General Municipal Law. It is fundamental that a city has no authority to act in excess of the power granted to it by the Legislature (Brooklyn City R. R. Co. v. Whalen, 191 App. Div. 737, 739; Board of Educ., Dist. No. 4 v. Board of Educ. of City of Rochester, 43 Misc. 2d 803, affd. 23 A.D.2d 805; Jewish Consumptives' Relief Soc. v. Town of Woodbury, 230 App. Div. 228, 234, affd. 256 N. Y. 619; Robia Holding Corp. v. Walker, 257 N. Y. 431, 438).
Thus, the definition and the meaning of the word "regulate" and the intent of the Legislature in incorporating that word in section 86 of the General Municipal Law is the subject of specific focus of the court in this case.
Several cases contain illustrations of the recognition of a difference between regulation and prohibition. As said by Judge Dillon, in Oil City Discount Center v. City of Yonkers (53 Misc. 2d 191, 194): "There is a wide difference between regulation and prohibition." In Peoples Dairy v. City of Lackawanna (1 Misc. 2d 700, 703) we find these words: "There is a substantial difference between 'prohibition' and 'regulation'." (See, also, cf. Defiance Milk Prods. Co. v. Du Mond, 309 N. Y. 537, 541.)
In Cronin v. People (82 N. Y. 318) the Charter of the City of Albany (L. 1870, tit. 3, § 12, subd. 14), authorized the City of Albany to enact ordinances "to regulate the erection, use and continuance of slaughter-houses." The city enacted ...