Berardi v. RutterBerardi v. Rutter
This is аn appeal by Nicholas P. Berardi from an order of the Superintendent of State Police revoking his license as a private detective.
Three years after receiving his license, Berardi entered a plea of nolo contendere to an information rеturned in the United States District Court for the District of New Jersey, charging him with a violation of
“* * * to the collector * * * any false or fraudulent * * * return * * * with intent to * * * evade the * * * assessment intended to be made * * *.”
Berardi was accused of having falsely claimed exemptiоns in 1951 for his mother and son on the ground that they were dependent upon him. A judgment of conviction was entered on the plea, and though sentence was suspended, Berardi was fined $500 and placed on probation for five years.
On the hearing below, it was stiрulated that the sole question before the Superintendent was whether under
“shall be revocable by the superintendent after hearing for cause.” (Italics added)
Appellant‘s first point before us constitutes an attack upon the constitutionality of the above quoted provision of
It is elementary that a court will, if reasonably possible, put a construction upon a statute which will render it constitutional; and that only where it clearly violates the constitution, will it be struck down. It is elementary also that in deciding whether a term, such as “cause,” provides an adequate standard, the court will not confine its attention to the term itself, but must examine the entire statute in the light of its surroundings and objectives. Ward v. Scott, 11 N.J. 117, 123 (1952).
An examination of the entire statute here discloses, among other things, that the Superintendent of State Police may refuse to issue a private detective‘s license if he is not “satisfied” аs to the applicant‘s “good character, competency
The standard expressed by the term “cause” is therefore in the present context to be equated to the standard fixed for the issuance of the license; it covers the factors covered by the latter standard, and only those factors. We accordingly take it that cause signifies just this: a substantial (cf. Finnegan v. Miller, 132 N.J.L. 192, 194 (Sup. Ct. 1944)) deficiency with respect to “good character, competency and integrity.”
Such a standard is surely free frоm any constitutional infirmity arising because of vagueness or inadequacy. For the standard does not admit of arbitrary action on the part of the Superintendent; nor does it enable him to accomplish some personal or other purpose wholly out of keeping with the apparent legislative design. Moreover, it is explicit enough to advise licensees adequately of the conditions which will render their licenses revocable. Cf. Abelson‘s, Inc., supra, 5 N.J., at page 424.
Standards are sustained today, notwithstanding their generality. State v. Hotel Bar Foods, 18 N.J. 115, 124 (1955); In re Greenville Bus Co., 17 N.J. 131, 135 (1954); Ward v. Scott, 11 N.J. 117, 123-125 (1952); N.J. Bell Tel. Co. v. Communication Workers, 5 N.J. 354, 371 (1950). And оf course there is nothing objectionable in investing an administrative officer with a discretion (see City of Newark v. N.J. Turnpike Authority, 7 N.J. 377, 385 (1951); Nagy v. Ford Motor Co., 6 N.J. 341, 349 (1951)), if the discretion is bridled and held in check by a statutory standard. State v. Wheeler Auto Driving School, Inc., 17 N.J. Super. 488, 495 (App. Div. 1952).
The point with respect to constitutionality must therefore be rejected. It might be as well to add thаt in putting the above construction upon the term “cause,” we are not suggesting that a statute which authorizes an administrative officer to revoke a license for “cause,” may violate the Constitution because it is silent as to what constitutes cause. We do not decide that point, though it may be noted, in passing, that there are a considerable number of statutes throughout the country authorizing the removal of an officer or employee for “cause,” and that under them “cause” is generally held to mean “just cause” or such cause as is “plainly sufficient under the law and sound public policy” (Haight v. Love, 39 N.J.L. 14, 22 (Sup. Ct. 1876), affirmed at 39 N.J.L. 476 (E. & A. 1877); Ayers v. Newark, 49 N.J.L. 170, 171, 172 (Sup. Ct. 1886); Brokaw v. Burk, 89 N.J.L. 132, 135 (Sup. Ct. 1916); Russo v. Meyner, 22 N.J. 156, 179, 181 (1956) (Heher, J. in a dissenting opinion)), excluding therefore arbitrary or capricious action. Moreover, the term there is generally held to have reference to a substantial cause touching qualifications appropriate to the office or employment or to its administration. Russo v. Meyner, supra, 22 N.J., at page 179; and many other cases in accord, some of which are cited in 43 Am. Jur. 47; 67 C.J.S. 248, Officers, § 60, p. 248; 46 C.J. 986; 4 McQuillin, Municipal Corporations (3rd ed.), 256, 257. But see Lipkin v. Duffy, 119 N.J.L. 366, 368 (E. & A. 1938); Mayor etc. of City of Hoboken v. Gear, 27 N.J.L. 265, 287, 288 (Sup. Ct. 1859, opinion of Vredenburgh, J. only). As thus defined, the term “cause” resembles in some respects the standard of “good character, competency and integrity” now under consideration.
Leaving the point with respect to constitutionality, we turn next to the question what constitutes “good charaсter,
“No person shall be employed by any holder of a license until he shall have executed and furnished to such license holder a verified statement, to be known as `employee‘s statement,’ setting forth:
* * * * * * * *
(d) That he has not been convicted of a high misdemeanor or of any offense involving moral turpitude or of any of the misdemeanors or offenses described in this section.
(e) Such further information as the superintendent may by rule require to show the good character, competency, and integrity of the person executing the statement.” (Italics added)
We might observe at this juncture in the discussion that where an intent to defraud constitutes an essential element of an offense, the offense surеly involves moral turpitude. Jordan v. De George, 341 U.S. 223, 232, 71 S.Ct. 703, 95 L.Ed. 886, 893 (1950), Annotation, 95 L.Ed. 899, 907; Louisiana State Bar Assn. v. Steiner, 204 La. 1073, 16 So.2d 843 (Sup. Ct. 1944); cf. In re Hallinan, 43 Cal.2d 243, 272 P.2d 768 (Sup. Ct. 1954). Here the offense involves moral turpitude since an intent to evade an assessment — that is, to defraud the government — constitutes an essential element.
We cannot conceive that the Legislature intended that a person convicted of an offense involving moral turpitude was to be permitted to qualify as a detective, but not as a detective‘s employee. The Legislature may, of course, fix one standard for the licensee and another for his emplоyee, depending on the circumstances, including the type of license involved. State v. Wheeler Auto Driving School, Inc., 17 N.J. Super. 488, 494 (App. Div. 1952). But with respect to an offense of the sort above stated and in connection with a detective‘s license, one surely may presume that the Legislature
It is also to be observed that under the rule laid down in Kravis v. Hock, 136 N.J.L. 161, 165 (E. & A. 1947), if a detective‘s employee is convicted of an offense involving moral turpitude, he is disqualified under
Attention is next directed to the word “further,” italicized in the portion of
The word “further” (appearing in
Upon these premises, we are brought to the view that Berardi‘s conviction disqualifies him, even as it would disqualify his employee; and that hence, without further proof, his license is revocable in a proceeding before the Superintendent. We have not overlooked the possibility that under this statute the terms “good character * * * and integrity” may not be synonymous and that in the context “character” may therefore signify reputation or credit, as at times it does. But, even if that is the import of the word here (we do not pass upon the point), we do not see how this can affect thе present case. For the stipulation below, reducing the case to the single question aforementioned, indicated that it would be unnecessary to bring in witnesses on any other matter — including therefore Berardi‘s reputation.
The conclusions we have reached above not only on the question whether the standard here should be “good character, competency, and integrity,” but also with respect to the proper construction to be put upon that standard, comport with the obviоus objectives of the entire statute. That statute and others somewhat like it which will be found in a considerable number of jurisdictions, were enacted because of the abuses that may attend the operation of the business of a detective agency. As has been said, these statutes, in the interests of the public, sought “to prevent from engaging in that business disreputable, incompetent
Two arguments of Berardi may be briefly disposed of at this point, even though they involve some of the questions adverted to earlier. First, he maintains that if the statute be constitutional, nevertheless the term cause should be limited to certain acts which аre referred to at various places in the law as specific grounds for the revocation of a detective‘s license, namely:
Finally it is said that conviction of a federal crime does not furnish the Superintendent with any basis for revocation of a license. There is no merit to this argument either. The New York cases cited, In re Donegan, 282 N.Y. 285, 26 N.E.2d 260 (Ct. App. 1940); Tonis v. Board of Regents, 295 N.Y. 286, 67 N.E.2d 245 (Ct. App. 1946), and Garsson v. Wallin, 304 N.Y. 702, 107 N.E.2d 604 (Ct. App. 1952), merely decide what constitutes a felony under New York law; and People ex rel. Marks v. Brophy, 293 N.Y. 469, 58 N.E.2d 497 (Ct. App. 1944), is not persuasive here.
The Superintendent‘s order, revoking Berardi‘s license upon the basis of the conviction above mentioned, is affirmed.