Falco v. Atl. City

• Decision Date: 17 November 1923
• Citation: 122 A. 610
• Parties: FALCO v. ATLANTIC CITY et al.
• Court: New Jersey Supreme Court

122 A. 610

FALCO

v. ATLANTIC CITY et al.

Supreme Court of New Jersey.

Nov. 17, 1923.

(Syllabus by the Court.)

Salvadore Falco was convicted in the recorder's court of Atlantic City for operating his barber shop after the time set by an ordinance, and he brings certiorari against the city of Atlantic City and others to review the conviction. Judgment of conviction affirmed.

Argued June term, 1923, before TRENCHARD and PARKER, JJ.

Parsons & Parsons, of Atlantic City, for prosecutor.

Joseph B. Perskie, of Atlantic City, for respondents.

TRENCHARD, J. This writ brings up the conviction of the prosecutor in the recorder's court of Atlantic city for operating his barber shop in that city on Thursday, April 27, 1922, after 8 o'clock p. m., in violation of an ordi nance forbidding such operation after that hour. No question is raised with respect to the procedure resulting in the conviction, but the attack is upon the ordinance and the statute on which it is based. That statute is chapter 97 of the Laws of 1917 (P. L. p. 208), and provides that the governing body of any municipality shall have power to pass, enforce, alter, or repeal ordinances to regulate the opening and closing of barber shops on Sundays and legal holidays; also on week days; to fix and enforce penalties for violation of such ordinances, not exceeding a fine of $25 or imprisonment not over 10 days. The ordinance forbids the operation of barber shops "during hours other than the following, namely: Week days between 7 a. m. and 8 p. m.; Saturdays between 7 a. m. and 9 p. m.," etc. The penalty in this case was warranted by the statute and the ordinance.

The points made are that the statute is in violation of the Fourteenth Amendment to the federal Constitution and of paragraph 1, of article 1 of the state Constitution (the clause establishing the right of "acquiring, possessing and protecting property"); that the ordinance is unreasonable; that it is in restraint of trade; that the section in the ordinance relating to licensing barber shops is invalid, and that the declaration in the ordinance that it is "necessary in order to protect the general welfare and health of the people frequenting and using barber shops," is, in the language of the brief, "not well founded."

As to constitutionality, the statute is well within the limits of the general police power. The fruitfulness of many barber shops as spreaders of certain forms of contagious disease is a matter of common knowledge, and the power of the state and its subordinate agents to provide for licensing, regulation, and inspection of such places in the interest of the public health cannot be doubted. From the health standpoint "stringent regulations are lawful." La Porta v. Board of Health, 71 N. J. Law, 88, 58 Atl. 115.

So far as relates to the provision in the act of 1917 permitting regulation of the opening and closing hours, this is also within the police power. In Barbier v. Connolly, 113 U. S. 27, 5 Sup. Ct. 357, 28 L. Ed. 923, and Hing v. Crowley, 113 U. S. 703, 5 Sup. Ct. 730, 28 L. Ed. 1145, regulations of the hours of closing public...