Schumackee v. Little Falls Tp.
| Decision Date | 26 July 1918 |
| Citation | 108 A. 113 |
| Parties | SCHUMACKEE v. LITTLE FALLS TP. |
| Court | New Jersey Supreme Court |
Certiorari by Frank Schumacker against the Township of Little Falls to review the proceedings before a justice of the peace, resulting in the imposition of a fine upon prosecutor for the violation of an ordinance of said township. Conviction set aside.
Argued before Justice MINTURN sitting alone pursuant to the statute.
Michael J. Murphy, of Paterson, for prosecutor.
Joseph MacDonald, of Paterson, for respondents.
The writ is designed to review the proceedings before a justice of the peace at Little Falls, in Passaic county, which resulted in the imposition of a fine upon the prosecutor, for the violation of the provisions of an ordinance of the township in operating there a "merry-go-round" machine upon Sunday, the 9th day of June last. The prosecutor was fined $25 for his offense, and thereafter obtained this writ to test the legality of the ordinance and procedure which condemned him.
The procedure is attacked because the record sent up presents no recital of the testimony before the magistrate upon which it can be adjudged whether the particular act in question was illegal. An inspection of the record seems to support this contention, for it merely contains a recital that two witnesses testified to the act in question, and that from their testimony the magistrate concluded that the prosecutor violated the ordinance.
This meager return is not in compliance with the legal rule which requires a return of the testimony upon which the conviction was adjudged. Massinger v. Millville, 63 N. J. Law, 123, 43 Atl. 443; Kolb v. Boonton, 64 N. J. Law, 163, 44 Atl. 873.
This defect obviously requires the setting aside of the conviction; but, since the legality of the ordinance was attacked in the argument, it may be well to consider that question so as to set at rest any doubt that may exist as to the powers of the township in that respect.
The Township Act (Pamph. L. 1899, p. 386) empowers the township committee to pass ordinances "to prevent and suppress breaches of the peace and disorderly assemblages."
Section 2 of the ordinance provides:
"That no person or persons shall on the first day of the week, commonly called Sunday, run or put in motion or cause to be run or put in motion any merry-go-round or carousal, swings or scups which are maintained for gain or revenue, or keep open and maintain any dancing hall or pavilion, under a penalty of...
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...affirmed 90 N.J.L. 674--677, 101 A. 1054); Schachter v. Hauenstein, supra (92 N.J.L. 104, 105 A. 13); Schumacker v. Township of Little Falls, 92 N.J.L. 106, 108 A. 113 (Sup.Ct.1918); Mazzarelli v. City of Elizabeth, 164 A. 898, 11 N.J.Misc. 150 (Sup.Ct.1933); Richman v. Board of Commissione......
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...closing ordinances were sustained in Sherman v. City of Paterson, 82 N.J.L. 345, 82 A. 889 (Sup.Ct.1912); Schumacker v. Little Falls Township, 92 N.J.L. 106, 108 A. 113 (Sup.Ct.1918); and Mazzarelli v. City of Elizabeth, 11 N.J.Misc. 150, 164 A. 898 (Sup.Ct.1933)'; that 'a criminal statute ......
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