State v. Mayor

• Decision Date: 10 March 1896
• Citation: 34 A. 5,58 N.J.L. 578
• Parties: STATE (LAMBERT, Prosecutor) v. MAYOR, ETC., OF CITY OF RAHWAY et al.
• Court: New Jersey Supreme Court

34 A. 5

58 N.J.L. 578

STATE (LAMBERT, Prosecutor)

v. MAYOR, ETC., OF CITY OF RAHWAY et al.

Supreme Court of New Jersey.

March 10, 1896.

(Syllabus by the Court.)

Certiorari on the prosecution of Albert Lambert against the mayor and common council of Rahway and another to review a conviction of prosecutor for a violation of an ordinance. Conviction set aside.

Argued November term, 1896, before GARRISON and LIPPINCOTT, JJ.

J. C. Connolly, for prosecutor.

B. A. Vail, for defendants.

LIPPINCOTT, J. By this writ the prosecutor seeks to review the conviction had on May 3, 1895, against him before William R. Frazee, a police justice of the city of Rahway, for the violation of the sixteenth section of an ordinance entitled "An ordinance relative to inns and taverns in the city of Rahway," adopted by the common council, and approved by the mayor on July 5, 1883. Complaint was made on April 17, 1895, against the prosecutor, who, by the return made to this writ, was a licensed retail liquor dealer in the city of Rahway; that on the 1st day of July, A. D. 1895, he sold to one Edward W. Chapin one glass of apple whisky, and one bottle of apple whisky, contrary to the provisions of the said sixteenth section of this ordinance, which provides that, if any licensed person shall on Sunday sell, offer for sale, or give away any spirituous, vinous, or fermented liquors, he shall be punished as provided in the second section of the ordinance. This second section of the ordinance, as amended by a supplement thereto, adopted on December 31, 1884, provides a penalty of $20 upon conviction of the offense of selling on Sunday as provided in the sixteenth section of the ordinance. If these proceedings under this ordinance and the effect of the conviction stopped with the imposition of the penalty provided by the second section thereof, there might exist no great difficulty in sustaining the conviction. Objection to the conviction is made upon the ground that the complaint against the prosecutor does not specify under which sections of the ordinance the proceedings were taken. The complaint is based under the sixteenth section, which in itself provides no penalty, but the sixteenth section provides distinctly that the offender shall be subject to the penalty provided by the second section. This reference would seem to include the penalty imposed by the second section, and thus a complaint formally based upon the sixteenth section could hardly mislead the prosecutor as to the section under which he was being proceeded against.

It is also objected that the conviction does not set forth the facts upon which it is based. A rule was taken on the justice to certify the fact, and he has made return to this rule of the evidence before him, and, while this procedure is assailed as being contrary to the practice of the court, it may be that the law would, if this were the only point of objection, sustain the conviction under these sections of the ordinance. But as the case is presented these objections are not considered or determined.

There is no attempt upon the part of the prosecutor to assail the power of the mayor and common council of the city of Rahway to adopt an ordinance of the character contained in the sixteenth section. The power is expressly granted by the legislature to the common council to "license, regulate, and control the selling of spiritous or fermented liquors in any quantities, and may punish violation thereof, and may also revoke licenses." P. L. 1871, p. 1448, § 2. The general power to pass ordinances was conferred by the amended charter of 1865 (P. L. 1865, p. 499, §§ 25, 26). Under these provisions of the city charter the common council, with the approval of the mayor, were fully authorized to enact an ordinance imposing a penalty for the offense of the sale of liquor on Sunday, such as is provided by the sixteenth and second sections of this ordinance. If these sections stood alone upon this subject, no difficulty whatever would be encountered. But by the seventeenth section of this ordinance, which has direct reference to the prohibitions of the sixteenth section, another and a different penalty has been affixed to the conviction of a sale of liquor on Sunday. By this section this conviction for a sale of liquor on Sunday was made to operate ipso facto as a revocation of the license of the prosecutor. This section provides expressly "that if any person to whom a license has been issued * * * shall be convicted of a violation of any of the provisions of this ordinance, such conviction shall operate as a revocation of the license to such person so granted." Upon conviction it becomes the duty of the police justice to certify the conviction to the common council, and that body must direct the certificate to be filed with the city clerk, whereupon it becomes his duty to notify the person licensed of the revocation; and if he continues to sell after such notice he becomes liable to the penalties provided by an ordinance covering such cases. The conviction operates as a revocation, and notice of the revocation is thus provided. It will be perceived that the seventeenth section, so far as penalty is concerned, is made an inseparable part of the sixteenth and second sections of the ordinance, and the penalty of revocation becomes as much the result of the conviction as the money penalty imposed by the police justice. If it be not within the power or authority of the police justice, by his conviction, to impose, upon conviction, revocation of the license as a part of the judgment, then the conviction cannot stand. The contention of the prosecutor...