
    FRANK VANBUEREN, PROSECUTOR, v. BOARD OF COMMISSIONERS OF THE CITY OF WILDWOOD, RESPONDENT.
    Decided January 27, 1931.
    
      Before Justices Paekee, Campbell and Bodine
    Eor the prosecutor, Lewis T Stevens.
    
    Eor the respondent, Harry Tenenbaum and Carl Kisselman.
   Pee Cukiam.

This writ brings up a conviction for violating two ordinances of the city of Wildwood. One ordinance forbids display of merchandise upon the boardwalk; the other forbids the conducting of any merchandise business without a license.

The prosecutor was arrested and convicted on Sunday, and it is his contention that the proceedings were void because of section 5 of the Vice and Immorality act as follows: “That no person or persons, upon the first day of the week, commonly called Sunday shall serve or execute, or cause to be-served or executed any writ, process, warrant, order, judgment or decree (except in criminal cases or for breach of the peace), but that the service of every such writ, process, warrant, order, judgment, or decree, shall be void to all intents and purposes whatsoever; and the person or persons so serving or executing the same, shall be as liable to the suit of the-party grieved, and to answer damages to him for doing thereof,, as if he or they had done the same without any writ, process,, warrant, order, judgment or decree.” 4 Comp Stat., p. 5715. If a civil proceeding, the action was illegal. Jewett v. Bowman, 27 N. J. Eq. 275.

Our statute is almost an exact copy of 29 Car. II., ch. 7, §6. It has been held by virtue of that statute a warrant of commitment for a penalty cannot be executed on a Sunday,, and that the apprehension on that day is wholly void, and defendant entitled to be discharged out of custody. The King v. Myers, 1 T. R. 265.

Actions for penalties under municipal ordinances have, in this state, been held qui tarn actions, and, therefore, civil proceedings. Brophy v. Perth Amboy, 44 N. J. L. 217. See cases-collected under heading “Penalties,” New Jersey Digest, § 6.

The convictions will therefore be set aside, with costs.  