People ex rel. Kieley v. Lent

166 A.D. 550, 33 N.Y. Crim. 90, 152 N.Y.S. 18, 1915 N.Y. App. Div. LEXIS 7300

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 12, 1915
• Status: Published

Opinion

Putnam, J.:

The powers of the city of Yonkers, under its municipal charter (Laws of 1908, chap. 452, art. 3, § 1, subd. 21), to regulate amusements and common shows, include a right to license an exhibition of moving pictures. The city ordinance (§ 13), however, prohibits such a show on Sunday, and declares that every person violating this section shall “ forfeit a penalty of not less than twenty-five dollars ($25.00) nor more than one hundred dollars ($100.00) in the discretion of the magistrate convicting.” The relator has been arrested for violation of this section.

A license may be conditionally granted. It may he given subject to certain reasonable hours of opening and other limits upon its exercise. But the derivative power of a municipality to fine and imprison can only exist under, and in the due enforcement of, authority clearly committed to the municipality. The intent that municipal corporations by ordinance can supersede the State law will not be inferred from general grants of power, nor will such authority be held to exist as an implied or incidental right. (Dillon Mun. Corp. [5th ed.] § 632.) As all municipal authority comes from the Legislature, the provisions of municipal charters, however broad, are subject to such restrictions as may be imposed by general laws. (Lechner v. Village of Newark, 19 Misc. Rep. 452, 454.) The additional powers granted by chapter 247 of the Laws of 1913, amending the General City Law (Consol. Laws, chap. 21; Laws of 1909, chap. 26) by adding article 2a to said statute, giving authority to enforce ordinances by affixing penalties, forfeitures and imprisonment (§ 20, subd. 22), did not, and could not, surrender the general power to legislate against criminal offenses, which remains in the Legislature. (People v. Jarvis, 19 App. Div. 466.) The Legislature alone may command Dow Sunday shall be kept. (Neuendorff v. Duryea, 69 N. Y. 557; People v. Dunford, 207 id. 17, 20; People v. Moses, 140 id. 215.) Hence the city of Yonkers cannot independently compel and enforce Sunday closing, by means of fine or imprisonment, unless such prohibition is part of the law and policy as declared by the Legislature.

It follows that the writ should be sustained, and the relator discharged.

Jenks, P. J., Cabe and Rich, JJ., concurred; Bubb, J., concurred in result.

Writ sustained, and relator discharged.