92 N. J. L.

Schachter v. Hauenstein.

The provisions of the ordinance are clearly aimed at the pursuing of a business or occupation on Sunday, which has been carried on by the proprietor during the rest of the week; the manifest purpose being to secure the first day of the week as a day of rest. The question raised here that the ordinance is discriminatory in its operation cannot avail the prosecutor, since the Vice and Immorality act being a general act is in nowise contravened by the passage of the ordinance, and, therefore, the presumption exists that all within the prohibited class enumerated in the statute, of which this prosecutor is one, will obey the statutory Sunday law.

The ordinance simply adds an additional penalty for local infringement, and this, it has been held, is a legal exercise of the charter police power, and is therefore constitutional.

The case presents a substantial repetition of the facts contained in Sherman v. Paterson, 82 N. J. L. 345, and is therefore controlled by it. That adjudication has since been followed in Schumacker v. Little Falls, post p. 106, and the case before us may therefore be determined upon the doctrine of stare decisis. See also Cooley Const. Lim. 199.

Since the determination of the Sherman case, the legislature has enacted what is popularly termed the "Home Rule act" (Pamph. L. 1917, p. 319), which concedes to every municipality a liberal power of providing by ordinance to cover every act which in its operation and incidents may work detrimentally to the "public health, safety and prosperity of the municipality and its inhabitants," and which may be necessary "to carry into effect the powers and duties conferred and imposed by this act or any law of the state."

In either aspect of the situation the ordinance in question. was a legal exercise of legislative power vested in the municipality, and the conviction under it must be sustained.

Schumacker v. Little Falls.

92 N. J. L.

FRANK SCHUMACKER, PROSECUTOR, v. THE TOWNSHIP OF LITTLE FALLS, ETC., RESPONDENTS.

Argued July 8, 1918-Decided July 26, 1918.

1. A record of conviction, before a magistrate, which merely contains a recital that two witnesses testified to the act in question, and that from their testimony the magistrate concluded that the defendant violated an ordinance, is not in compliance with the legal rule which requires a return of the testimony upon which the conviction was adjudged.

2. A township ordinance prohibiting the operation of a "merry-goround" on Sunday is within the powers conferred upon the township by the Township act (Pamph. L. 1899, p. 385), as well as by the provisions of the so-called "Home Rule" act. (Pamph, L. 1917, ch. 152.)

On certiorari.

Before Justice MINTURN, by consent.

For the prosecutor, Michael J. Murphy.

For the respondents, Joseph MacDonald.

The opinion of the court was delivered by

MINTURN, J. The writ is designed to review the proceedings before a justice of the peace at Little Falls, in Passaic county, which resulted in the imposition of a fine upon the prosecutor, for the violation of the provisions of an ordinance of the township in operating there a "merry-go-round" machine upon Sunday, the ninth day of June last. The prosecutor was fined $25 for his offence, and thereafter obtained this writ to test the legality of the ordinance and procedure which condemned him.

The procedure is attacked because the record sent up presents no recital of the testimony before the magistrate upon which it can be adjudged whether the particular act in question was illegal. An inspection of the record seems to support this contention, for it merely contains a recital that two wit

92 N. J. L.

Schumacker v. Little Falls.

nesses testified to the act in question, and that from their testimony the magistrate concluded that the prosecuor violated the ordinance.

This meagre return is not in compliance with the legal rule which requires a return of the testimony upon which the conviction was adjudged. Massenger v. Millville, 63 N. J. L. 123; Kolb v. Boonton, 64 Id. 163.

This defect obviously requires the setting aside of the conviction; but since the legality of the ordinance was attacked in the argument, it may be well to consider that question so as to set at rest any doubt that may exist as to the powers of the township in that respect.

The Township act (Pamph. L. 1899, p. 386) empowers the township committee to pass ordinances "to prevent and suppress breaches of the peace and disorderly assemblages."

Section 2 of the ordinance provides: "That no person or persons shall on the first day of the week, commonly called Sunday, run or put in motion or cause to be run or put in motion any merry-go-round or carousal, swings or scups which are maintained for gain or revenue, or keep open and maintain any dancing hall or pavilion, under a penalty of twentyfive dollars for each offence, to be recovered for the use of the township."

Under this section the prosecutor was convicted. It must be manifest that the operating of a "merry-go-round" upon Sunday in any public place must tend to draw together noisy and possibly disorderly assemblages, in violation of the Sunday law, and is the reason underlying its enactment.

The power contained in the Township act is not only directed at such performances upon week-days, but is in essence a general delegation of police power to the municipality, which may exercise it as a supplementary power in aid of the provisions of the Vice and Immorality act, so as to preserve peace, and banish noise and the distractions of the workshop, and ordinary employments, on Sunday as a day of rest, under the American conception of orderly local government. Petit v. Minnesota, 177 U. S. 164.

That such an exercise of the police power is valid and con

Corlies v. Westchester Fire Ins. Co.

92 N. J. L.

Sherman v.

stitutional has been determined by this court. Paterson, 82 N. J. L. 345. Additional support to the authority claimed for the passage of the ordinance is furnished by the "Home Rule" act (Pamph. L. 1917, p. 353, ch. 152), which empowers the governing body to pass ordinances, inter alia, (1) to preserve public peace and good order, (2) to prevent disturbing noises.

The general delegation of powers contained in this act is supplemented by an omnibus provision (p. 357, § 2) which concedes power to every municipality to make such ordinances "for the good government, order, and for the protection of the public health, safety and prosperity of the municipality and its inhabitants, and as may be necessary to carry into effect the powers and duties conferred and imposed by this act or by any law of this state."

This general delegation of police power usually designated the general welfare clause in such enactments, leaves no doubt that the passage of the ordinance in question was within the power conferred by law upon the township.

For the reason primarily stated the conviction must be set aside, but the ordinance will be sustained, without costs to either party.

JOHN M. CORLIES, PLAINTIFF, v. WESTCHESTER FIRE CORPORATE, DE

INSURANCE

FENDANT.

COMPANY, A BODY

Submitted March 27, 1918-Decided August 15, 1918.

1. Where a fire insurance policy, written in standard form, as required by the laws of this state, has annexed thereto a "Farin Form," containing a provision inconsistent with the provisions of the standard form, such inconsistent provisions must be treated as a nullity.

2. In order to occupy a barn, within the meaning of a fire insurance policy, it does not require the insured to live or sleep therein. It is sufficient compliance with the terms of the policy if the property insured is put to the use contemplated by the parties, as expressed in the contract of insurance.

92 N. J. L.

Corlies v. Westchester Fire Ins. Co.

3. A court will seek a construction of a forfeiture clause in a fire insurance policy which will sustain it, even though a construction which will defeat it is reasonably deducible from the terms or words used therein.

On defendant's rule to show cause.

Before GUMMERE, CHIEF JUSTICE, and Justices PARKER and KALISCH.

For the rule, Arthur T. Vanderbilt.

Contra, Alston Beekman.

The opinion of the court was delivered by

KALISCH, J. The plaintiff in an action brought against the defendant, on a contract of fire insurance, recovered a verdict of $1,000. Counsel of defendant, on a rule to show cause allowed, presents three reasons on which he relies for making the rule absolute. The first two reasons relate to the refusal of the trial judge to grant a nonsuit, and, at the close of the case, to direct a verdict for defendant. The third reason is based upon an alleged error in that portion of the judge's charge, where he instructed the jury, as follows: "If the dwelling be or became vacant or unoccupied, except in accordance with the conditions of this. policy, the entire policy is void," was without force or effect.

The agreed facts are, that the defendant company issued to the plaintiff a policy of insurance for a period of three years, for the sum of $1,000, upon the plaintiff's barn, for which the latter paid defendant company a premium of $20; that the barn was destroyed by fire and that the verdict of the jury for the amount of the policy was proper, if the plaintiff was entitled to recover at all under the terms of the policy.

Upon the premises, where the barn stood, was a dwelling about three hundred yards distant from the barn, which dwelling had been for more than ten days previous to, and was at the time of the fire unoccupied.