Quinlan v. Conlin , 69 N.Y. St. Rep. 119 ( 1895 )

McAdam, J.

The plaintiff is the proprietor of a saloon at No. 138 Park Row, this city, which has been duly licensed for the sale of liquors. On Sunday July 7, 1895, he removed all intoxicating drinks from his premises and offered for sale thereon soda water, sarsaparilla, ginger ale, and seltzer water. While such sales were going on, plaintiff was arrested by officer Downing, of the Sixth precinct, and arranged before Magistrate Deuel, who discharged him, an the ground that he had committed no offense. Captain Young, the commander of the Sixth precinct, has informed the plaintiff that if he opens his premises for the sale of nonintoxicating drinks on the 14th inst. he will arrest him, and keep on arresting him as long as he persists in selling on Sunday. The plaintiff, therefore, applies for an injunction enjoining the officers from making the threatened arrest, or interfering with his business.

While the sale of soda water, sarsaparilla, and the like on Sunday is not a violation of the excise law, it is a clear violation of the statutes for the observance of the Sabbath, and renders the plaintiff liable to arrest on that charge. Pen. Code, § 266, forbids all trades upon the Sabbath, except where the same are works of necessity; and by section 267 "all manner of public selling ór offering for sale of any property is prohibited, except that articles of food may be sold and supplied at any time before ten o’clock in the morning, and except also that meals may be sold to be eaten on the premises where sold, or served elsewhere by caterers, and prepared tobacco in places other than where spirituous or malt liquors or wines are kept or offered for sale, and fruit, confectionery, newspapers, drugs, medicines and surgical appliances may be sold in a quiet and orderly manner at any time of the day.” Section 269 of the Penal Code provides “that Sabbath breaking is a misdemeanor, punishable by a fine not less than five dollars and not more than ten dollars, or by imprisonment in a county jail not exceeding five days, or by both; but for a second or other offense, where the party shall have been previously convicted, it shall be punishable by a fine not less than ten dollars and not more than twenty dollars, and by imprisonment in a county jail not less than five nor more than twenty days.” All good citizens, and particularly those whose character has been certified as good by the issuing of licenses, should abstain from any infraction of the law. If laws are onerous, relief rests in legislative wisdom and not in judicial discretion. The policy of the state is expressed in the laws made by the representatives of the people, and courts must see that these laws are enforced. Many slight infractions of the law are at times tolerated. But toleration is not license.

Application for injunction denied.