People ex rel. Hammerstein v. O'Gorman — 22 N.Y. Crim. 47

Majority

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SUPREME COURT—APP. DIVISION—FIRST DEPARTMENT,

Feb. 7, 1908.

THE PEOPLE ex rel. WILLIAM HAMMERSTEIN v. JAMES A. O’GORMAN, Justice, etc., and THEODORE A. BINGHAM as Police Commissioner.

(124 App. Div. 222.)

Headnote

(1) . Municipal Corporations—Sunday—Theatrical Exhibitions.

On an application for a peremptory writ of prohibition to restrain the entry of an order revoking a theatrical license in the city of New York, the only question involved is the jurisdiction of the justice to entertain the application ándito make the order.

(2) . Same—Effect of Sec. 277 Penal Code on City Charter.

Section 1481 of the Charter of the City of New York forbidding the giving of certain exhibitions and performances on Sundays, being a re-enactment of section 1007 of the Consolidation Act of 1882, was only repealed by section 277 of the Penal Code covering the same ground in so far as Section 2007 made said act a crime and fixed punishment therefor—and said section was not repealed by the Penal Code section.

,(3). Same-—Jurisdiction—Charter Section 1481.

So the Supreme Court has jurisdiction of a proceeding to revoke a theatrical license in the City of New York on the ground that the licensee has given performances on Sunday in violation of Section 1481 of the City Charter, and a writ of prohibition does not lie to restrain a justice of the Supreme Court and the police commissioner from entertaining and taking such proceeding.

Application by the relator, William Hammerstein, for a peremptory writ of prohibition upon the return of an alternative writ of prohibition issued out of the Appellate Division directed to James A. O’Gorman, a justice of the Supreme Court, and Theodore A. Bingham, as police commissioner, restraining them from taking any action in a proceeding to revoke a theatrical license issued to the relator.

Louis J. Yorhaus, for the relator.

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William II. Jackson, for the respondents.

This is an application for a peremptory writ of prohibition and comes before us upon an alternative writ and return thereto. The relator is the holder of a theatrical license issued under section 1473 of the Greater New York charter (Laws of 1897, chap. 378, as amd. by Laws of 1901, chap. 412).^[5] A proceeding for the revocation of his license under section 1476 of the charter was instituted by the police commissioner and has so far proceeded that Mr. Justice O’Gobmau, before whom the proceeding was heard, has handed down a decision granting the prayer of the petitioner that the license be revoked. The purpose of the writ of prohibition now applied for is to prevent the entry of an order upon that decision. The only question which we can consider is whether or not the justice had jurisdiction to entertain the application, and has jurisdiction to make the order sought to be restrained. Section 147 6 of the charter authorizes the revocation of a theatrical license by a judge or justice of a court of record “ upon proof of a violation of any of the provisions of this title,” meaning thereby title 2 of chapter 22. Section 1481, being a part of that title, forbids the holder of a theatrical license to give certain exhibitions and performances on Sunday. The charges against this relator, and which have been proven, are that he has frequently violated the provisions of this section. The grounds upon which the relator asserts the lack of jurisdiction to grant an order of revocation are as follows : He says that neither the Supreme Court nor any justice thereof has any inherent jurisdiction to revoke a theatrical license; that such jurisdiction must be found in section 1476 of the charter which authorizes a revocation only for violation of one of the provisions of' title 2 of chapter 22; that section 1481, being the only one which the relator is accused of violat

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ing, has been superseded and repealed by the Penal Code, and, therefore, constitutes legally no part of said title 2, and consequently that there is no authority for revoking a license for violation of that section. This contention is apparently an afterthought, for its does not appear that it was presented to Hr. -Justice O’Gormab upon the hearing, or that any motion for a reargument was presented to him. It, therefore, comes before us as an original proposition. Section 1481 of the charter is a re-enactment of section 2007 of the New York City Consolidation Act of 1882 (Laws of 1882, chap. 410, as amd. by Laws of 1885, chap. 249), and, therefore, under the terms of section 1608 of the charter^[5] is to be considered not as a new enactment but as a continuation of section 2007 of the Consolidation Act-The effect of the unusual provisions of section 2143 of the Consolidation Act,^[6] and of section 728 of the Penal Code,^[4] has been declared to be that the Penal Code, although enacted before tho Consolidation Act, has the same effect upon that act as if it had been enacted after it. (People v. Jaehne, 103 N. Y. 182 ; People v. Jensen, 99 App. Div. 355 ; affd., 181 N. Y. 571 .) Section 2007 of the Consolidation Act, now section 1481 of the charter, not only forbids the giving of certain exhibitions and performances on Sunday, but declares a violation of its provisions to be a misdemeanor, and prescribes the punishment therefor. Section 277 of the Penal Code, in slightly different language, but to the same purport, also forbids the giving of exhibitions and performances on Sunday, declares a violation of its provisions to be a misdemeanor, and prescribes the punishment therefor. It is argued that under these circumstances section 2007 of the Consolidation Act^[5] was repealed by the enact

‡ ‡ See Laws of 1881, chap. 676, § 728, added by Laws of 1886, chap. 31.—[Rep.

* Revised from Laws of 1860, chap. 501.—[Rep.

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ment of section 277 of the Penal Code^[6] under the familiar rule that a later statute, not purporting to amend a prior one, and which covers the whole subject and is plainly intended to furnish the only law upon the subject, must be held to have repealed the prior statute by necessary implication. If the question arose upon a criminal prosecution, as it did in the Jaehne and Jensen cases,' this argument would be unanswerable. It did not so arise, however. The Penal Code, as the title implies, is a statute enacted for the purpose of defining crimes and prescribing the punishment therefor, and to this extent was intended as a substitute for and consequent repeal of the scattered and fragmentary legislation which preceded it. (People v. Jaehne, supra.) Title 2 of chapter 22 of the charter is essentially a licensing act forbidding certain things to be done without a license, providing for the issuance of licenses and the manner and terms upon which they' may be issued, providing an orderly method for their judicial revocation, and specifying various things (of which the giving of performances on Sunday is only one) which may not be done and for the doing of which a license may be revoked. In this aspect the Penal Code does not purport to cover the same ground which is covered by the charter provisions, for although section 277 of the Penal Code does provide that the doing of any of the acts therein forbidden shall “ of itself ” annul any license which shall have previously been obtained, it makes this annulment contingent not upon a conviction under the section, but upon a doing of the prohibited act, and it provides no procedure by which the fact of violation may be ascertained and established and a decree of annulment made. There is no reason why the Legislature may not in one act declare that the doing of certain things shall constitute a crime, and by another and separate act declare that the doing of the same things shall forfeit a license,

† † Amd. by Laws of 1883, chap. 358.—[Rep.

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or otherwise affect a civil right. Undoubtedly the Penal Code operated to repeal section 2007 of the Consolidation Act in so far as that section undertook to define a crime and fix the punishment therefor. But if all those provisions are deemed to have been stricken out of that section, and consequently out of section 1481 of the present charter, there will still remain a prohibition of Sunday performances. So far as concerns the effect of a violation of these provisions upon a license issued under section 1473, the charter remains unrepealed and unaffected by the Penal Code. It follows that Mr. Justice O’Gorman had jurisdiction to entertain the application, and has jurisdiction to enter the order sought to be prohibited. The alternative writ must be dismissed and the motion for a peremptory writ denied, with fifty dollars costs ,and disbursements to be respondents.

Patterson, P. J., McLaughlin, Laughlin and Clarice, JJ., concurred.

Alternative writ dismissed and motion for peremptory writ denied, with fifty dollars costs and disbursements to respondents. Settle order on notice.

Footnotes

* See Laws of 1901, chap. 466, “ Section Three.”—[Rep.
* See, also, Laws of 1901, chap. 466, § 1608.—[Rep.
† † Amd. by Law|s of 1883, chaps. 67, 276, § 35.—[Rep.

Cases cited

People v. Jaehne 103 N. Y. 182 N.Y. 1886-10-05 p. 49