
    The People ex rel. Henry Klinger, Relator, v. Benjamin L. Rand, Mayor, etc., of North Tonawanda, Respondent.
    (Supreme Court, Niagara Special Term,
    July, 1915.)
    Municipal corporations — refusal by mayor to license moving picture theater to be opened Sunday.
    A mayor of a city may not legally refuse to license a moving picture theater except on condition that it will not be open on Sunday.
    Application for writ of peremptory mandamus.
    Albert R. Smith, for relator.
    A. F. Premus, opposed
   Pound, J.

The mayor, who is vested with the power to license shows, refuses to issue a license to relator except on condition that he will not open his moving picture theater on Sunday. The question is whether he may lawfully impress upon relator his views on the Sunday closing of moving picture theaters.

The power to license involves the right to regulate, is- discretionary and not mandatory. The mayor, as conservator of the public welfare, should refuse a license where the opening of a theater would, in his judgment, work to the detriment of the community. He may grant licenses conditional, among other things, upon reasonable hours of opening. But his power is not absolute. He must not act arbitrarily or capriciously, and, if his action is tyrannical or unreasonable, the relator has a remedy through mandamus. People ex rel. Lodes v. Dept. of Health, 189 N. Y. 187, 194.

.It was held in the year 1908 in People v. Hemler, 127 App. Div. 356, after conflicting decisions at Special Term (United Vaudeville Go. v. Zeller, 58 Mise. Bep. 16), that the general law of the state does not prohibit an indoor exhibition of moving pictures on Sunday. Seven years of inaction by the legislature since this decision was rendered suggests an acceptance of the ruling by a majority of the people, or of their representatives.

Among earthly powers “ the legislature alone may command how Sunday may be kept.” Putnam, J., in People ex rel. Kieley v. Lent, 166 App. Div. 550; affd., 215 N. Y. 626. “ It is the sole judge of acts proper to be prohibited.” Neuendorff v. Duryea, 69 N. Y. 557. “As to the acts which should be prohibited as disturbances or profanations of the Sabbath Day, the Legislature is the sole judge.” People v. Dunford, 207 N. Y. 17, 20. So it has been held that a city ordinance prohibiting Sunday opening under penalty .of fine and imprisonment is void. People ex rel. Kieley v. Lent, supra.

In a legal sense it therefore must be deemed “ tyrannical ” and a usurpation of power and not “ discretionary ” for the mayor to refuse his permission to relator to open his moving picture theater at reasonable hours on Sunday, for the mayor thus makes a Sunday law unto himself and seeks to impress it upon the community in hostility to the general law of the state and judges that of which the legislature is the sole judge.

Motion for writ granted, with ten dollars costs.  