170 N.E. 850 | Ind. | 1930
These causes have been consolidated, as the same question has been presented for consideration in each, the only difference being the manner in which it is raised. In No. 25,646, the question is raised by exceptions to the conclusions of law stated by the court on special findings of fact; and in No. 25,482, the question is raised by demurrer to appellee's answer.
The city of Crawfordsville brought these actions against the appellee to recover damages for violations of an ordinance of said city prohibiting the operation of moving picture and other shows in said city on Sunday where money or thing of value was either demanded or received for admission to same. The actions were originally brought in the city court of Crawfordsville, where there were findings and judgments against the defendant, from which he appealed to the Montgomery Circuit Court, from which court changes of venue were asked, and the causes were transferred to the Parke Circuit Court. In each proceeding, the question before the court was the validity of the ordinance upon which the original action was brought. Judgments were rendered for the defendant, from which the city has appealed.
Each complaint alleged that the defendant, on a certain-named day, in Montgomery County, State of Indiana, and within the limits of the city of Crawfordsville, did then and there exhibit, participate in exhibiting and maintaining, open and operate, a moving picture show on the first day of the week commonly called Sunday, and for which the defendant did then and there receive money from persons admitted to such performance, contrary to and in violation of § one (1) of an ordinance of *621 said city, adopted by the common council thereof on July 29, 1912, and also adopted by said common council on December 10, 1917, as one of the ordinances of said city, to the damage of said city in the sum of $100.
Section 1 of the ordinance was as follows: "That it shall hereafter be unlawful for any person, persons, firm, or corporation to exhibit or participate in exhibiting or maintaining, or open or operate in any way any theatrical performance, moving picture show, or other show, in the City of Crawfordsville, Indiana, on the first day of the week, commonly called Sunday, for which such person, persons, firm or corporation so exhibiting, operating or maintaining the same, either receives or demands from the person or persons admitted to such performance or performances any money, ticket, or thing of value."
On the days the defendant was accused of violating said ordinance, there was in force and effect in the State of Indiana, a statute, regarding Sabbath breaking, reading as follows: "Whoever, being over fourteen years of age, is found on the first day of the week, commonly called Sunday, rioting, hunting, fishing, quarreling, at common labor, or engaged in his usual avocation [vocation] works of charity and necessity only excepted, shall be fined not less than one dollar nor more than ten dollars; but nothing herein contained shall be construed to affect such as conscientiously observe the seventh day of the week as the Sabbath, travelers, and those engaged in conveying them, families removing, keepers of toll bridges and toll gates, ferrymen acting as such, and persons engaged in the publication and distribution of news, or persons engaged in playing the game of baseball between the hours of one o'clock p.m. and six o'clock p.m., and not less than one thousand feet distant from any established house of worship or permanent church structure used for religious services, or any *622 public hospital or private hospital erected prior to the passage of this act." Acts 1909 p. 436, § 2574 Burns 1926. A Sunday statute with the same general provisions as this one had been in effect in this state for more than 100 years.
When the ordinance was enacted by the city of Crawfordsville, the law of Indiana provided as follows: "The common council of every city shall have power to enact ordinances for the following purposes: . . . Thirty-third. To regulate, license, tax, restrain or prohibit theatrical and all other exhibitions, shows or entertainments." Acts 1905 p. 219, § 10284 Burns 1926.
And, on said day, it was also provided by statute: "Whenever any act is made a public offense against the state by any statute and the punishment prescribed therefor, such act shall not be made punishable by any ordinance of any incorporated city or town; and any ordinance to such effect shall be null and void, and all prosecutions for any such public offense as may be within the jurisdiction of the authorities of such incorporated cities or towns, by and before such authorities, shall be had under the state law only," etc. Acts 1905 p. 602, § 2401 Burns 1926.
In his answers, the defendant stated that he was then and had been for more than two years the owner and proprietor of the Strand Theatre in Crawfordsville, Indiana, and had been conducting and carrying on the business of exhibiting, maintaining and operating therein theatrical performances, moving picture shows as his usual avocation and business, charging and receiving from the persons admitted to such performances, exhibitions and shows, various prices and sums of money by sale of admission tickets in the usual and customary manner; and that, on the days charged in the complaints, within the corporate limits of the city of Crawfordsville, he participated in exhibiting and maintaining, and did *623 open and operate a moving picture show on the first day of the week commonly called Sunday, and for which he did then and there receive money from persons admitted to such performances; and that, in so doing, he was pursuing his usual avocation or vocation, and that the sums of money so received by him for admissions to said shows were received and used by him in his business and for his own use, and not for charity or because of necessity; and that he did not conscientiously observe the seventh day of the week as the Sabbath, that he was over the age of 21 years, and did not come within any of the exceptions of § 2574 Burns 1926.
In cause No. 25,646, the court stated as two of its conclusions of law upon the special finding of facts that the ordinance was invalid on account of being in violation of said § 2401 Burns 1926; and that the ordinance was invalid on account of being in violation of § 2401 Burns 1926, in that the act of the defendant so charged in the complaint was an act made a public offense against the state and for which punishment was prescribed by said § 2574 Burns 1926.
The test to be applied in determining whether or not the state law and the municipal ordinance cover the identical offense is whether the one can be violated without violating the 1. other. Loach v. City of La Fayette (1917),
A municipal corporation cannot enact a valid ordinance for the punishment of an act which constitutes an offense against a penal statute of the state. It follows from this principle, 2, 3. that if, on the trial of one charged with the violation of a municipal ordinance, it appears from the evidence that the accused has committed no act save that which would constitute a violation of a penal statute of the state, a decision finding the accused guilty, and imposing a punishment for the alleged crime, is contrary to law. Kassell v. *624 Mayor, etc., of Savannah (1900),
It is well settled in this jurisdiction, not only by statute but also by the decisions of this court, that an act punishable under the criminal law of this state cannot also be punished by a municipal ordinance. Jett v. Richmond (1881),
In McCarthy v. State (1877),
In Ross v. State (1894),
In Stellhorn v. Board, etc. (1915),
In In re Baxter (1877),
One of the authorities strongly relied upon by the appellant isLoach v. City of LaFayette, supra, wherein the court held: "A municipality may by ordinance penalize an act performed by one for the purpose of enabling him to accomplish another and distinct act which itself constitutes a violation of a State statute." But in the cases under review, the question is whether the illegal act in the ordinance and the state statute are the same. Appellant also relies upon City of Ames v. Gerbracht
(1922),
The title of the ordinance was: "To prohibit the exhibition of theatrical, moving pictures or other shows in the City of Crawfordsville on the first day of the week, commonly 4. called Sunday," etc. By his answers, the appellant brought his alleged acts under the Sabbath-breaking statute. The facts set forth in the special findings are substantially the same as alleged in the pleadings. From McCarthy v. State,supra, decided by this court, and Ross v. State, supra, decided by the Indiana Appellate court, it clearly appears that the offense defined in said ordinance of the city of Crawfordsville is covered by the state statute on the subject of Sabbath breaking (§ 2574 Burns 1926). This statement is also sustained by authorities, herein cited, from other jurisdictions. And said ordinance is invalid on account of being in violation of § 2401 Burns 1926, as an act made a public offense against the state by statute and the punishment prescribed therefor cannot be made punishable by any ordinance of any incorporated city. Although the ordinance may have been intended to prohibit theatrical, moving picture or other shows on Sundays, nevertheless it must also be regarded as Sunday legislation and, as such, is inconsistent with the statutes of the state. Whether appellant was guilty of violating the state statute is not here for review and is not decided.
In cause No. 25,646, the court did not err in any of its conclusions of law; and in cause No. 25,482, the court did not err in overruling appellant's demurrer to appellee's answer.
The judgment in each case is affirmed. *628