Hogan v. Firth

• Decision Date: 27 October 1921
• Parties: HOGAN v. FIRTH, Sheriff.
• Court: New Jersey Supreme Court

115 A. 204

HOGAN

v. FIRTH, Sheriff.

Supreme Court of New Jersey.

Oct. 27, 1921.

Action by John F. Hogan against Walter Firth, Sheriff, of Mercer County. On motion to strike out complaint Complaint stricken out.

Argued before Justice TRENCHARD, sitting alone pursuant to the statute.

W. Holt Apgar, of Trenton, for the motion.

Backes & Schroth, of Trenton, opposed.

TRENCHARD, J. The complaint avers in effect that the plaintiff was arrested by the sheriff without a warrant while the plaintiff was engaged, as acting manager of the Trent Theater, in conducting a moving picture show at the theater on Sunday.

Under the authority of Rosenberg v. Arrowsmith, 82 N. J. Eq. 570, 89 Atl. 524, State v. Rosenberg (in Supreme Court) 115 Atl. 203, and Trenton Theater Building Co. v. Firth (in Chancery and unreported), I hold that the plaintiff, whilst so engaged, was violating section 1 of the Vice and Immorality Act (4 Comp. St 1910, p. 5712), and it is clear from the statements in the complaint that such violation was in the presence of the officer making the arrest.

Neither of these propositions seems to be disputed by the plaintiff, who says in his brief that—

"The real question at issue is whether the sheriff, either under his common law powers, or any law of this state, had a right to take the body of Mr. Hogan, under the circumstances above presented, and restrain him of his liberty, without warrant."

The sheriff is the chief peace officer of the county, and by the common law has power to arrest without a warrant those who break the peace in his presence. But the determination of this case does not depend alone upon the common-law powers of the sheriff, and for this reason. Section 1 of the Vice and Immorality Act, which interdicts, among other things, worldly business and plays on Sunday of the character conducted by the plaintiff, further provides that, if any person shall be found playing or behaving in a disorderly manner on Sunday, it shall be lawful to stop him and detain him till the next day, to be dealt with according to law, and that language seems broad enough to comprehend the offense of the plaintiff which, as I have pointed out is forbidden in that section.

Now the complaint avers that the plaintiff was detained only "two hours or thereabouts," and it was stipulated in open court at the argument that I should consider that the complaint did not charge, and was not intended to charge, that any more force was used in making the arrest...