New-York tribune., 1907-12-31
BUTTS FINES SHOWMEN.
Sans DouU Ordinance Is Inconsistent
nth Penal Code.

Joseph NJ. Goldstein, the proprietor, ana 11@lis
Rosen the operator of moving picture place at
No AS East Houston street. who were arrested or
December q charged with violating the Sunday
law were each fined s. by Magistrate Butts IN the
Essex Market police court yesterday Ihe case
furnished occasion for long written decision oy
the magistrate touching on the recent action OF tie
Board of Aldermen
The exhibit of Godsten consisted OF series OF
pictures depicting tho Midnight Ride of Paul Re-
we're" and Mothers Prayer" and the detehdahe
said that exhibit educational and therefore
in accordance with the ordinance OF the Boaro OF
Aldermen passed December II. Five cents was
charged for admission. Magistrate Butts said;
The question before me is; HAS the section No
265 Of The Penal Code of tits state of New York
been repealed or modified IN ths any Bal Dy 0g gordnace
There is doubt as to the meaning OF ns seEtie ff
All exercises and shows. among other things. are
prohibited on sunday hold the exhibition oI o., o,
Sunday, the 22d day Of December. 1907. to be
Nc 2s5 Of the Penal Code and they must be found
guilty of violating its proyisons unless t'le 500 sac
relating to shows or exhibitions Sunday and has
authorized such exhibition or show as IiaL eS aS
haaited 1sa4 by the defendants sunday Doee'"'s' ~
power or authority has the Board of Aldermen Of
the city of New York TO repeal. amend, modIIg OF
in any way change any law of this state? Said
Douli amendment are clearly inconsistent with Sec
tRerafore tSa 70 ei Absolutely i5s % null % and void
the ar question now before me- But it is question
not of sentiment but of law-not wnat the Id"
ought to be might be. bat what 1t Is.
Counsel for the defendants started to say some
thing to Magistrate Butts regarding his decision
but the magistrate waived him aside saying that this
his decision and that IL counsel was rot salts
fed the case could be taken TO higher court The
fines were then paid.
William z. Murphy, of the Police Departments 8
legal bureau. told Magistrate Barlow in Jefferson
Market court yesterday that he believed the DouH
ordinance invalid because il conficted with the
Penal Code when Miss Matte Thompson OF No
&7s2 West Sd street, Coney Island Morris Bernard
of No 157 Suffolk street and Barney Archer. OF
No 80 East 115th street. arTaigned before the
magistrate charged with conducting the Comedy
Theatre. at No. 46 East 14th street On Sunday.
Magistrate Barlow the hearing for next FRI
day. when Magistrate Kernochan will consider the
case. The three prisoners were arrested by De-
tecives Fitzgerald and Brady of the Mercer street
police station, on Sunday night. The station house
bond continued by the magistrate.
A difference of opinion to the likelihood of the
higher courts taking the position Magis-
trate Butts prevailed among several lawyers who
were seen last night A. J. Dttenhoefer counsel
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 couficted with the
law of the state became inactive He said that
the performances given by Mr. Conred would be
no way affected by the decision of the magis-
trate.
William Grossman counsel for Oscar Hammer
stein manager of the Manhattan Opera House.
held to an opinion different from that OF Mr..
Dittenhoefer- He said that he had grave doubts
whether higher court would sustain Magistrate
Butts In his decision. He said:
II 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 III of
the Penal Code and does not refer to section 265
In any way. I 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 2So
as something to be looked at and therefore the
moving picture shows might come under its pro-
visions. He that the magistrates de-
cision would not in any way affect the shows with
which he is connected.