New-York tribune., 1906-12-31
BUTTS FINES SHOWMEN.
Says DOuU Ordinance Is Inconsistent
zCith Penal Code.

Joseph NJ. Goldstein, the proprietor. and Harry
Rosen the operator. of a moving picture place at
No. 435 East Houston street, who were arrested on
December %. charged with violating the Sunday
law, We're each fined s. by Magistrate Butts in the
Essex Market police court yesterday. The case
furnished occasion for long written decision by
the magistrate touching on the recent action of the
Board of Aldermen.
The exhibit of Cioldstein consisted of series of
pictures depicting the Midnight Ride of Paul Re
vere'' and Mothers Prayer" and the defendant
said that the exhibit educational and therefore
in accordance with the ordinance of the Board OF
Aldermen passed December IS. Five cents was
charged for admission. Magistrate Butts said;
The question before me is: Has the section No
PCS of the Penal Code of this State of New YORK
nance generaliy known as 81 the Do1ll ordinance?
There is no doubt as to the meaning OF TINS seeton
All exercises and shows. among other things, are
cr on sunda hold n b the on
Sunday. the 22d day of December, 1907: to be
No s of the Penal code and they W must be found
guilty of violating its provisions unless the said
relating to shows exhibitions Sunday and has
S1 S1eh M an ndaT 9 RoT as
This question at once itself What right
the city Of New York to repeal amend; modify or or
board has no such power. The provisions. of the
ton 2s5 Of the Penal Code: The said amendment is
therefore @ o absolutely null IL and nd void
the @ aeon
nGs Of to m o but be- of m bs What M the law
Counsel for the defendants started to say some
thing to Magistrate Butts regarding his decision.
but the magistrate waived him aside, saying that this
was his decision and that if counsel rot salts
fed the could be taken to higher court The
fines then paid
William E. Murphy, of the Police Department. 9
legal bureau. told Magistrate Barlow in Jefferson
Market court yesterday that he believed the Doul
ordinance invalid because it con1icted with the
Penal Code. when Miss Matte Thompson of No
1852 West Sd street, Coney Island; Morris Bernard
of No 157 Suffolk street. and Barney Archer. of
No. 90 East 115th street arraigned before the
magistrate charged with conducting the Comedy
Theatre. at No 46 East 14th street, on Sunday.
Magistrate Barlow set the hearing for next Fri
day, when Magistrate Kernochan will consider the
case. The three prisoners were arrested by De-
tectives Fitzgerald and Brady of the Mercer street
police station, Sunday night. The station house
bond continued by the magistrate.
difference of opinion to the likelihood of the
higher courts taking the same position as Magis-
trate Butts prevailed among several lawyers who
were seen last night. a. j. Dittenhoefer, counsel
for Mr. Conried manager of the Metropolitan Opera
House. said that he had always been of the opinion
that the Penal Code superseded the provisions of
the greater New York charter and that any law
passed by the aldermen which conhicted with the
law of the state became inactive He said that
the performances given by Mr.. Conred would be
in no way affected by the decision of the magis-
trate.
William Grossman, counsel for Oscar Hammer
stein. manager of the Manhattan Opera House.
held opinion different from that of Mr.
Dittenhoefer He said that he had grave doubts
whether a higher court would sustain Magistrate
Butts in his decision He said:
Il have never contended that the Board of
Aldermen had the power to repeal general statute
passed by the Legislature. The greater New York
charter gives to the aldermen only the power to
regulate the matters contained in section 277 of
the Penal Code, and does not refer to section 265
in any way. L believe that the Doull ordinance
does not conflict in any way with the latter sec
ton. as the ordinance simply embOdies the words
that are contained in the code. The CORPORATION
Counsel has handed down opinion which sup
ports this view
Percy G.. Williams said that he thought that most
lawyers interpreted the word show in section 265
as something to be looked at and therefore the
moving picture shows might come under it's pro-
visions. He was sure that the magistrates de-
cision would not in any way affect the shows with
which he is connected.