City of Brooklyn v. Toynbee

| N.Y. Sup. Ct. | Jul 7, 1857

Emott, J.

It is contended that the ordinance upon which this suit was brought, or at least that portion of it which forbids the sale of liquor on Sunday, is void upon the principles supposed to be laid down by Mr. Justice Strong in Wood v. City of Brooklyn, (14 Barb. 425,) to which we were cited. Obviously, however, that case is not in point. The plaintiff, • there, was the possessor of a license to sell liquor as a tavern-keeper, granted by the state authorities, and the question was ' whether the city of Brooklyn had power to prohibit an act which a law of the state and the license granted under it, not only did not forbid, but expressly permitted. Here the defendant in the court below was not a licensed innkeeper, and did not pretend to any rights or privileges other than such as are common to all the citizens of Brooklyn. It would be going much farther than the learned justice in the case referred to went, and farther than he seems to have been disposed .to go, if we were to hold that the ordinance in question is wholly void because it is rendered inoperative as to certain persons by the privileges and permissions conferred Upon them by licenses granted under the laws of the state. It may be that as far as a municipal ordinance conflicts with, or contravenes, a law of the state, in the case of any individual, it may be void; but it does not follow that it is void in toto, or as to every one else. It may easily be shown upon principle and authority—and the learned judge in the case of Wood v. The City of Brooklyn sanctions this vie*—that a municipal government may be authorized to pass ordinances imposing new and superadded penalties for acts already penal by the laws of the state. We cannot yield to the objection that this ordinance was void because a statute of the state had already prescribed penalties for the acts here forbidden under ne* penalties. It must be added, in reference to the objection founded on the fact that licenced as well as unlicenced persons are within its terms, that at the time of the offense for which this suit was brought no such licenses existed or were allowed, and there was in fact no conflict between the law of the state and this ordinance.

At the trial in the city court, the plaintiff, as it is stated in the bill of exceptions, “ proved the sale of goods or liquors by the defendant on Sundays as is alleged in the complaint, during the year prior to December 30, 1855 ” This was all the evidence in the cause, and upon this the city judge instructed the jury “ that the plaintiffs were entitled to recover one penalty for exposing to sale and one penalty for selling liquors or merchandise mentibned in the complaint on the same Sunday to which the defendant excepted. If there had been proof of any act of exposing goods for sale other than the sales consummated and proved—that is, if there had heen proof of an offer or exposure of liquors or goods at one time, and subsequently a sale at another time on the same day—then the question would have been presented which was argued at the bar, whether there can be more than one offense committed against this ordinance by all that is done on any one Sunday, or more than one penalty recovered for several acts done contrary to its provisions on the same day. But as the proof of sales by the defendant conformed to the complaint, and that alleged substantially a single sale on each Sunday," and no exposing to sale other than the actual sales was proved, we think this question does not arise, on the evidence. We therefore decline to express any opinion upon it.

A serious question, however, arises upon that part of the charge of the city judge, which we have quoted; that is, whether the defendant was liable to two penalties for the same act, one for exposing to sale and the other for selling. But one act is stated to have been proved on any Sunday, and that act in each case was a sale. There is no proof that any thing was exposed to sale that was not immediately and at the time of such exposure sold. The city judge, however, in effect instructed the jury that every such sale involved two acts, first an exposing, and second a sale, and rendered the defendant liable to both the penalties inflicted by both sections of the ordinance. In this he was clearly wrong. The law was aimed at different acts of a different character. Its object was to prevent a desecration of the Lord’s day, and the design of its two sections was to punish this as well when done by opening a shop or a tavern and exposing wares for sale, without being able to induce any one to buy, as when perpetrated by the actual sales of property. One single act of selling cannot, however, be divided into two offenses. Every sale necessarily includes an offer of the goods sold, just as every crime includes £he attempt to commit it. But the attempt, when successful, is merged in the crime, and the exposing or offering is only a' part of the sale when a sale is made.

[Orange General Term, July 7, 1857.

These are the only questions presented by the hill of exceptions, and they are therefore the only questions which we can decide, or upon which we are called to express an opinion. For the erroneous ruling of the court below upon the point just considered, there must be a new trial; and the judgment is accordingly reversed, and the cause remitted to the city court to that intent.

W. B. Wright, J. I entirely concur in the reasoning and conclusion of my brother Emott. The judgment should be reversed and a new trial ordered, with costs to abide the event,

Davies, J. also concurred.

New trial granted.

Wm. B. Wright, Davies and Emott, Justices.]