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People ex rel. Kieley v. Lent

166 A.D. 550 Court Second Department, Decision date 1915-03-12 English

Delivered by Putnam, J.:

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The People of the State of New York ex rel. Wolden Kieley, Relator, v. William H. Lent and Others, Respondents.
Second Department,
March 12, 1915.

Headnote

Municipal corporations — city of Yonkers — ordinance punishing exhibiting of moving pictures on Sunday—powers of municipality.
Although the city of Yonkers under its charter may license an exhibition of moving pictures, it cannot, in the absence of statutory authority, pass or enforce an ordinance punishing by fine and imprisonment a person who gives such exhibition on Sunday.
A municipality has only power to fine or imprison when such power is given to it by the Legislature.
Habeas corpus issued out of the Supreme Court, Appellate Division, on the 25th day of January, 1915, to inquire into the detention of the relator, Wolden Kieley, in the city prison of Yonkers. The hearing was had and opinion rendered upon the return of the original writ.
John J. Finn [ William E. Butler with him on the brief], for the relator.
Frederick E. Weeks, District Attorney, and Thomas F. Curran, Corporation Counsel, for the respondents.

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

p. 551
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.

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