56 Ga. App. 63 | Ga. Ct. App. | 1937
Lead Opinion
The defendant was convicted, in recorder’s court of the City of Dublin, for violating the following ordinance: “That from and after the passing of this ordinance it shall be unlawful for any theatre or moving-picture show to operate any motion-picture machine or show or cause to be shown any moving picture on Sunday, . . except between the hours of one and two o’clock in the afternoon.” Under its charter the City of Dublin has power and authority “to license, regulate, and control all opera houses, theatres, and picture shows, . . places of amusement,” and to pass such ordinances “as to [the city council] may seem right and proper respecting picture shows.” The ordinance quoted was not subject to attack on the ground that it was void as in conflict with the Code, § 26-6905. “It is settled beyond all possibility of dispute, that a municipal corporation, in the absence of express legislative authority, can not punish for an offense against the criminal law of this State.” Callaway v. Mimms, 5 Ga. App. 9 (62 S. E. 654). It is also true that “An act penalized by a law of the State may be penalized also by a municipal ordinance, if there be in the municipal offense some essential ingredient not essential to the State offense.” Loach v. LaFayette, 19 Ga. App. 639 (91 S. E. 1057). It is apparent from a reading of the statute and the ordinance that there is a difference in the essential ingredients. As was said in Karwisch v. Atlanta, 44 Ga. 204, which was a case where the proprietor of a store was convicted for “keeping open his doors on the Sabbath:” “The Christian Sabbath is a civil institution older than our government, and respected as a day of rest by our constitution; and the regulation of its observance as a civil institution is within the power of the Legislature, as much as any regulations and laws having for their object the preservation of good morals, and the peace and
The evidence discloses that one Martin operates on week days a moving-picture show known as the Bitz Theatre. The Dublin Belief Association, of which the defendant is a member, has for its purpose the relief of poor and indigent persons in its community. Under an agreement between Martin and the defendant the Bitz Theatre is turned over to the defendant to be operated on Sunday, the defendant paying to Martin all the costs of the operation of such picture show on Sunday, including rent of films, electric lights and power used, water, cost of advertising, heat, fuel, express and transportation charges, the net proceeds being retained by the defendant for charitable purposes of such Dublin Belief Association. That the show was operated in violation of the ordinance can not be doubted. It was expressly held in Thompson v. Atlanta, 178 Ga. 281 (172 S. E. 915), that a motion-picture operator may not operate his show, such being his regular vocation or calling, on Sunday, and claim that it is a work of charity, unless the entire proceeds and not merely the net proceeds are donated to such cause. See also Woods v. State, 53 Ga. App. 384 (185 S. E. 920). In Albany Theatre Inc. v. Short, 173 Ga. 121 (159 S. E. 711), it was said: “If the jury under the testimony in this case should find that the net proceeds of all exhibitions to be made in the future is to be devoted to the purpose of aiding under-privileged children, it is obvious that the work is one of charity, as well as most necessary.” While not necessary to the decision in this case, attention is called to the language of the Supreme Court of the United States in Bucher v. Cheshire R., 125 U. S. 55: “In order to constitute an act of charity such as is exempt from the Lord’s-day act of Massachusetts, the act which is done must itself be a charitable act.” Also Judge Bleckley, in Trustees v. Bohler, 80 Ga. 159 (7 S. E. 633), said: “The exemption from taxation of institutions of public charity,
Judgment affirmed.
Dissenting Opinion
dissenting. The city ordinance in question prohibits “any theatre or moving-picture show” -from showing any
