Fennan v. City of Atlantic

97 A. 150, 88 N.J.L. 435, 3 Gummere 435, 1916 N.J. Sup. Ct. LEXIS 95

• Court: Supreme Court of New Jersey
• Decided: March 9, 1916
• Status: Published

Opinion

Fhe opinion of the court was. delivered by

Garrison, J.

Tlie first reason for reversal is that there should have been only one conviction. The argument in support of this reason is based upon the assumption that the ordinance forbids the desecration of tlie Sabbath by the doing of any or all of the enumerated tilings, in which case, as the decisions hold, the ordinance is as much violated by any one of the acts mentioned as it would be by them all. The present ordinance is, however, not of that sort, but, on the contrary, prohibits Sunday dancing, Sunday nine pins, &c., each specifically and according to the same qualifications. It is as if a man. should keep open two saloons for Sunday selling, for which, of course, there could be two convictions.

The second reason is because the ordinance excepts musical concerts and moving picture shows. This exception occurs in the amendment to the ordinance approved May 14th, 1915. Hence, if such amendment is bad because of the exception, the original ordinance is in force and covers the convictions. It is unnecessary, therefore, to stop to inquire why a city ordinance would be invalid if it did not re-enact the vice and immorality statute in toto. The effect of the exception does not alter the statutory situation—with the effect of licensing Sunday shows, considered in Singer v. Newark, 79 N. J. L. 386, we have no present concern.

Third. The penalty provided by the ordinance is within the power conferred by Pamph. L. 1902, p. 284, § 14 et seq.; Atlantic City v. France, 75 N. J. L. 910.

Fourth. The operation of the amusements in question was a violation of the ordinance.

Ho other reason is argued.

The convictions brought up by the writ are affirmed.