Grossman v. Baumgartner , 254 N.Y.S.2d 335 ( 1964 )

Rabin, J. (dissenting).

I dissent and vote to affirm the judgment appealed from. I agree thoroughly with the conelusion reached by Special Term, and with the reasons given in support of such conclusion. However there is one aspect of the case that I would like to discuss.

The use of the police power of the State may be exercised to correct a practice that presents a danger to public health. There is no question about that. How far the State may go in the exercise of that power presents a problem quite different. We deal with that problem in this appeal.

As has been so well said in Matter of Jacobs (98 N. Y. 98,110): ‘ the police power is not without limitations, and * * * in its exercise the legislature must respect the great fundamental rights guaranteed by the Constitution.” It is the right of men to pursue any lawful business or occupation except when such pursuit presents danger to the health, safety or welfare of society. Where such a danger is present, its avoidance through the use of the police power is of course permissible. I believe, however, that the sanctions imposed by such police power, infringing as they do upon “ fundamental rights ”, must not be permitted to exceed the bounds reasonably necessary to achieve such purpose.

The majority of this court, resting upon the authority of Ferguson v. Skrupa (372 U. S. 726, 732) concludes that in this case the choice to prohibit or regulate lies solely with the defendants, and such choice when made may not be the subject of judicial review. In reaching that conclusion I think the majority has read too much into the Ferguson case.

What did the United States Supreme Court hold in the Ferguson case? As I read the opinion, the court merely held that where there is a basis for the exercise of police power, that court would not interfere where a State Legislature decides to prohibit rather than regulate. In so holding, it decided that the Federal due process clause, which is designed to afford protection to the individual against the power of government, has not been violated merely because there is prohibition rather than regulation.

It does not follow, however, that a State court may not, or should not, apply a more stringent standard in the protection of the rights of individuals. The reluctance of the United States Supreme Court to interfere with the legislative policy of a State is quite understandable. However, there is no prohibition against the State court affording greater protection than the Federally mandated minimum. Compare the minimum requirements for jurisdiction imposed by the United States Supreme Court in International Shoe Co. v. Washington (326 U. S. 310) with the more stringent requirements required by the New York State courts in Tauza v. Susquehanna Coal Co. (220 N. Y. 259).

An exercise of police power such as is here involved has as a necessary concomitant, direct interference with the rights and freedom of individuals to pursue that which has been for many years a lawful pursuit. In the light of such intrusion upon fundamental rights, the exercise of the police power should be restrained and not applied to a degree more than necessary to accomplish the purpose sought to be achieved. It should go no further.

I have no quarrel with the validity and unassailability of the finding that the practice of tattooing as presently conducted is a hazard to public health and that the hazard must be eliminated. However, the testimony of the defendants’ medical experts indicates that the practice of tattooing can be safe, if properly conducted in accordance with appropriate principles of asepsis. That being so, I am of the opinion that the outright prohibition of the practice of tattooing is an unwarranted extension of the police power and therefore is invalid.

It might well be that tattooing serves a minimal social or economic purpose. But, today it is tattooing that is being prohibited, tomorrow it may be some other pursuit with a conceded social and economic usefulness. While it is unlikely that businesses such as barbershops, electrolysis or beauty salons would be outlawed — rather than regulated if possible—-if they generally became a danger to the health of the community yet, holding as the majority does in this case establishes the power of an administrative agency to do so. Such power should not be sanctioned. ‘ The Legislature may not validly make it a crime to do something which is innocent in itself merely because it is .sometimes done improperly ” (People v. Bunis, 9 N Y 2d 1, 4).

It must be stressed that here we do not consider the constitutionality of an act of the State Legislature as in the Ferguson case. It may not be gainsaid that a resolution adopted by an administrative agency—albeit endowed with the power to make such resolution—must stand on a different footing than a direct enactment by the State Legislature. Such agency action should be more cautiously scrutinized. In such instance we do not have the protection of the legislative investigatory process and the resultant legislative findings made in connection with the passage of a bill which contemplates an exercise of the State’s police power. In any event, were such findings required to be made by these defendants, they would have to find — based on the testimony of their own experts that there is no necessity for confiscation as opposed to regulation, At least not until a proper regulatory scheme had been devised, tried and found unworkable.

In conclusion, I am of the opinion that in the circumstances, the defendants’ attempt to prohibit what was heretofore, and for many years, a lawful pursuit, constitutes an excessive use of necessary police power and thereby is violative of the fundamental rights of these plaintiffs protected and guaranteed by the Constitution.

Breitel, J. P., McNally and Bastow, JJ., concur with Steuer, J.; Rabin, J., dissents in opinion.

Judgment for plaintiffs reversed, on the law and the facts, without costs and judgment granted to defendants. Settle order on notice.