Carton, Seidman and Demos.
[126 NJSuper Page 411] Section 22-35 of the Irvington Town Code, adopted in 1960, provides as follows:
It shall be unlawful for any person to knowingly photograph, act in, pose for, print, sell, offer for sale, give away, exhibit, publish, or offer to publish, or have in his control, or otherwise distribute, make, display or exhibit any obscene book, magazine, story, pamphlet, paper, writing, card, advertisement, circular, print, picture, photograph, motion picture film image, cast, slide, figure, instrument, statute, drawing or presentation or other article which is obscene, within the town.
Violators are liable to the payment of a fine not exceeding $200, imprisonment for a term up to 90 days, or both.
Plaintiffs, the owners and operators of the "Best Adult Book Store" in Irvington, filed a complaint to enjoin the town, its municipal court, the police department and one of its detectives from arresting and prosecuting them for the alleged sale of obscene materials in violation of the quoted section; to compel the return of a quantity of books, magazines, films and other goods seized by the police pursuant to a warrant, and to declare the section of the Code "preempted, illegal, void, invalid and unconstitutional."
The Chancery Division granted an interim restraint and entered an order directing defendants to show cause why a temporary injunction should not issue pending final hearing. The Essex County Prosecutor was permitted to intervene as a party defendant.
On the return day of the order to show cause, there being no disputed facts, the trial court elected to treat the matter as a motion for summary judgment. The pertinent section of the town code was declared invalid on the ground that it was preempted by N.J.S.A. 2A:115-1.1 et seq., and the complaints pending in the municipal court were dismissed. Plaintiffs' demand for the return of the seized items was denied without prejudice to the making of a later application therefore.
Judgment was entered accordingly and defendants and the intervenor appeal.
In determining that the ordinance was invalid, the trial court relied entirely upon the case of Dimor, Inc. v. Passaic, 122 N.J. Super. 296 (Law Div. 1973). Defendants argue
before us, as they did below, that Adams Newark Theatre Co. v. Newark, 22 N.J. 472 (1956), aff'd 354 U.S. 931, 77 S. Ct. 1395, 1 L. Ed. 2d 1533 (1957), is dispositive on the authority of the municipality to adopt the type of ordinance under attack herein.
We observe at the outset that Adams Theatre Co. is not in point, since the question of preemption did not arise in that case. The issue there, resolved in favor of the city, was whether an ordinance condemning certain kinds of obscene performances violated the state and federal constitutional provisions guaranteeing freedom of speech.
Dimor involved a declaratory judgment action to invalidate a section of a municipal motion picture theatre licensing ordinance which declared unlawful the exhibiting of immoral pictures or shows "whose dominant theme appeals to the prurient interest, is patently offensive, affronts contemporary community standards relating to sexual matters and is without redeeming social value." Judge Doan, in the Law Division, held that the field of obscenity had been preempted by the State through the ...