Singer v. The First Criminal Court of The City of Newark

• Court: New Jersey Supreme Court
• Writing for the Court: PARKER, J.
• Citation: Singer v. The First Criminal Court of The City of Newark, 75 A. 433, 79 N.J.L. 386 (N.J. 1910)
• Decision Date: 21 February 1910
• Parties: MARTIN SINGER, PROSECUTOR, v. THE FIRST CRIMINAL COURT OF THE CITY OF NEWARK ET AL

75 A. 433

79 N.J.L. 386

SINGER

v. FIRST CRIMINAL COURT OF CITY OF NEWARK et al.

Supreme Court of New Jersey.

Feb. 21, 1910.

Certiorari to First Criminal Court of Newark.

Certiorari by Martin Singer to the First Criminal Court of the City of Newark and others, to review a conviction. Conviction set aside.

Argued November term, 1909, before SWAYZE, TRENCHARD, and PARKER, JJ.

Riker & Riker, for prosecutor.

Herbert Boggs, for defendants.

PARKER, J. The amended record brought up by this writ, and which the parties desire to have considered as the true record in the case, shows that prosecutor was convicted, before the First Criminal Court of Newark, of a violation of section 435 of the Revised Ordinances of that city, in that on the 26th day of September, 1909, he "did show forth, exhibit, or present at a certain place in the city of Newark, to wit, etc., for a price, gain or reward, a certain show or exhibition * * * of moving photographs or pictures without having first obtained a permit for that purpose from the mayor and common council of the city of Newark." The fine prescribed in said section was imposed. The allegations of the complaint were substantiated by evidence, and there is no question but that the section cited forbids the presentation of moving picture shows without permit being obtained. The prosecutor attacks the conviction on several grounds, but we think the case is sufficiently disposed of on the broad ground that, as the 26th day of September was a Sunday, a fact of which we take judicial notice, and as the act for suppressing vice and immorality (Gen. St. p. 3707, § 1) forbids "all worldly employment or business * * * interludes or plays * * * sports, pastimes, or diversions * * * on Sunday," under certain penalties therein prescribed, it was incompetent for the city of Newark to legalize the acts in question on a Sunday under the guise of a licensed occupation; and hence there could be no right to impose any penalty other than that provided in the statute for the acts complained of. The necessary effect of enforcing the collection of license fees by a prosecution under the ordinance for producing a Sunday show without obtaining a license therefor and paying the fee would be to legalize, under color of a municipal ordinance, an act which is expressly forbidden by general statute. The case is not like those that were discussed by the Supreme Court of the United States in License Tax Cases, 5 Wall. 462, 18 L. Ed. 497. In those...