Mayor v. Goodman

• Decision Date: 09 May 1902
• Citation: 68 N.J.L. 217,51 A. 1092
• Parties: MAYOR, ETC., OF CITY OF HOBOKEN v. GOODMAN.
• Court: New Jersey Supreme Court

51 A. 1092

68 N.J.L. 217

MAYOR, ETC., OF CITY OF HOBOKEN

v. GOODMAN.

Supreme Court of New Jersey.

May 9, 1902.

(Syllabus by the Court.)

Louis Goodman was convicted of violating an ordinance of the city of Hoboken, and brings certiorari. Affirmed.

Argued February term, 1902, before DIXON and COLLINS, JJ.

John I. Weller, for plaintiff.

James F. Minturn and Horace L. Allen, for defendant.

COLLINS, J. The plaintiff in certiorari was convicted before the recorder of the city of Hoboken for the violation of an ordinance the validity of which is attacked by the present writ removing such conviction. The ordinance, which was approved July 25, 1901, forbids the employment in any public place where intoxicating liquors are sold of any female to sell, offer, or distribute spirituous, vinous, malt or brewed liquors, or any intoxicating drinks or admixture thereof, or as "woman conversationalist" or for the purpose of attracting persons; and forbids the permitting of assembling of females in such a place for the enticing of customers or making assignations for improper purposes. It forbids any female, not having a license permitted by law, to sell, offer, procure, furnish, or distribute in any such place any such liquors or drinks, but provides that nothing therein "shall be so construed as to prevent the wife of any person having such a license from selling or distributing the aforesaid liquors." It prescribes a fine of $50 for its violation, and provides that no license to keep an inn or tavern or house of public entertainment, or for the sale of spirituous, vinous, malt, or brewed liquors in quantities less than one quart, to be drunk on or about the premises where sold, shall be granted, except upon the express condition that the licensee will not so employ any female or females, and that on conviction of violating any of the provisions of the ordinance the licensee, in addition to such penalty, shall forfeit his license. Section 40 of the charter of the city of Hoboken (P. L. 1855, pp. 448, 466, 467) enacts that the common council shall have power to pass, alter, and repeal ordinances to take effect within the city for the following, among other, purposes: "Tenth:— To license and regulate inns or taverns for the sale of or traffic in intoxicating drink or drinks. * * * Fourteenth:—* * * to suppress vice and immorality. Fifteenth:— To punish by fine or imprisonment all violations of any ordinances authorized by this act and to provide all means which they may judge necessary to carry into effect the objects and powers provided for by this act: and no fine shall exceed fifty dollars or imprisonment for ten days." By a supplement (P. L. 1859, p. 654) the tenth clause or subdivision of section 40 of the charter was struck out and the following was inserted instead thereof: "Tenth. To license and regulate inns or taverns and other houses of public entertainment for the sale of or traffic in spirituous, vinous, fermented or other intoxicating drink or drinks, and to prohibit by fine or penalty all traffic in or sale of such spirituous, vinous or other intoxicating drink or drinks by all or any person or persons not having a license from said council for that purpose." When the writ in this case was allowed by the writer of this opinion, it was assumed that the plaintiff in certiorari had a license then still in force issued before July 25, 1901, under the general city ordinance passed pursuant to the charter. The main ground for such allowance was the question of whether it was legally competent to impose additional burdens upon him during the term of his license. The proofs develop that, although he had made application to the council for a license to keep a house of public entertainment at the place where a violation of the later ordinance is alleged, and had deposited the appropriate fee, no action had been taken on his application. The fallacious argument is now advanced that, inasmuch as the tenth subdivision of the fortieth section of the charter, as amended, only anthorizes punishment for unlicensed traffic in intoxicating drinks, no authority exists to ordain punishment for violation of restrictions on such traffic. The power to regulate implies a power to punish, and the general anthority of the charter in that regard is ample. The amendment of 1859 made clear the power to prohibit unlicensed traffic, but did not curtail the power of regulation already conferred. But it is urged that,...