97 N.J.L. 67 | N.J. | 1922
Tiie opinion of the court was delivered by
The defendants were indicted for selling liquor without a license on January 4th, 1922, and on divers other days between that date and the finding of the indictment which, in form, charges a violation of section 66 of the Crimes act. Pamph. L. 1898, p. 812; Comp. Stat., p. 1767. The prosecutor of the pleas concedes that if section 66 was repealed, or not in force during the period charged in 'the
Where a statute which declares an act to be a crime is repealed by the legislature, and the repealing act is adjudged to be constitutional by a court of competent jurisdiction, and a citizen relying on the legality of the repealer, offends against the repealed act, and the repealing act is subsequently declared unconstitutional, it would be manifestly unjust to hold that the repealed act had always been in force and that such an offender could be punished as a criminal because he had offended against the repealed statute. As Chief Justice Beasley said in Cotter v. State, 36 N. J. L. 125 : “If a justice of the peace, being called upon to construe a statute with respect to the fee coming to himself, should, exercising due care, form an honest judgment as to his dues and should act upon such judgment, it would seem palpably unjust, and, therefore, inconsistent with the ordinary grounds of judicial action to hold such conduct criminal if it should happen that a higher-tribunal should dissent from the view thus taken and should decide that the statute was not susceptible of the interpretation put upon it.” In the same ease where the statute made the mere taking of illegal fees a criminal act without regard to the intent of the recipient, he said: “In morals, it is an evil mind which makes the offence, and this, as a general rule, has been the root of criminal law. The consequence is that it is not to be intended that this principle is discarded, merely on account of the generality of statutory language.” My opinion is that when a citizen offends against the terms of a repealed statute, he is not consciously doing a criminal act for which he can be punished.
The situation is. quite different from that where a statute is in force prohibiting the doing of an act made unlawful by it, where intent to violate is not required to be proven. In the one case the law violated is in force and its infraction presumes an intent to do the unlawful thing, while.in the other there could be no presumptive intent to do a conscious wrong, for the act of wrong-doing has the sanction of law and
There is another question arising out of the fact that the repealing act declares that if any part of that act he adjudged invalid it shall not affect any other part of the act. It clearly appears that part of the act of 1921, supra, was not held to be unconstitutional by any majority vote in the Court of Errors and Appeals, and it is argued that the saving clause continues the repealing- act in force because the legislature expressly declared that even if any part of the statute be excised for constitutional objections, they would still have passed the act in the form the courts might leave it, and that the repealing clause was a necessary part of the act, remaining after the unconstitutional provisions had been excised But it is not necessary to deal with this question, for the statute under which defendants are indicted was not applicable at the date when they are charged with its violation, and, as they cannot be effectively prosecuted or punished, the indictment will he quashed.