42 N.J.L. 145 | N.J. | 1880
The opinion of the court was delivered by
The defendant was convicted in the Essex County Quarter Sessions, on an indictment charging him with keeping a disorderly house in the city of Newark. The habitual sale of liquor on Sunday, was the only disorder proven on the trial.
The court charged the jury that if the defendant made it a practice to keep his house open on Sunday, for the sale of liquor, it was their duty to convict him. It must therefore be assumed, in this case, that the jury found that the defendant was guilty of habitually selling liquor on Sunday. The judgment of the Supreme Court, sustaining the conviction, has been brought here for review. The case involves the construction of the fiftieth placitum of the act concerning inns and taverns, which provides that certain sections of that act (now incorporated in the crimes act as Sections 60 and 61), making it a penal offence to sell liquor on Sunday, shall not “ apply to offences committed in any of the incorporated cities of this state, the ordinances of which provide for the punishment of the unlicensed sale of spirituous liquors, and for the punishment of the sale of spirituous, malt, vinous, fermented, or intoxicating liquors, on Sunday.” In the city of Newark, an ordinance is in force forbidding the sale of intoxicating liquors on Sunday, and the insistment is that this superseded the provisions of the state law above referred to. Rev., p. 493, pi. 50; Rev., p. 237, §§ 60, 61.
It is admitted that where the municipal ordinance provides a punisment for selling liquor on Sunday, the seller is punish
It forbids the unlicensed sale everywhere; it denounces the penalty which shall fall upon the offender, except in those localities where a substituted punishment shall be provided. It is not left to the municipality to determine whether such selling is to be a punishable offence; the legislature has declared that it should be, the quantum of punishment only being left to the city ordinance.
The city of Newark could not make the unlicensed sale-lawful, so as to dispense with penal consequences, because there is the state law reaching out its arm to strike every offender, unless the city shall otherwise punish him. Upon the repeal of such ordinance, the penalty of the state law would at once operate in the city; no legislation would be needed to revive it. The state law is mandatory, and, before-any locality can escape its sanctions, it makes it a necessity that some other form of punishment shall be provided.
The Sunday traffic is therefore not merely an infringement of the statutory policy of the state, but it is the doing of an act which the state law says shall not be done without being punished. This interpretation of the law leads to the conclusion that the defendant has been found guilty of habitually keeping his house open on the Sabbath, for a purpose which the statute interdicts as unlawful. That this subjected the house to an indictment as a public nuisance, has been the unchallenged law pf this state since the decision of State v. Williams, 1 Vroom 102. The doctrine of this case was
It would require a strong array of authorities to overturn a rule which has become so firmly rooted in the administration of the criminal law of the state. The only cases cited by the defence are the English decisions, which hold that where an act of parliament makes unlawful that which was lawful before, and prescribes a penalty for the prohibited act, that remedy must be pursued. These cases are decided upon correct principles, but no adjudged case has been produced which holds that a house may not be abated as a nuisance, where practices forbidden by positive law are persistently carried on. Judgment was arrested in Rex v. Marriott, 1 Show. 400, where the inictment was for keeping an ale-house, because, by 5 and 6 Edw. VI., a certain penalty was provided for keeping an ale-house. The indictment charged the precise act forbidden, not an habitual violation of the statute. It is contended that, to make the offence indictable, the acts complained of must have a tendency to subvert public morals. Acts which the experience of mankind has proved to be so inimical to the public welfare, that it becomes necessary to prohibit them by positive law, may not inaptly be classified with things which have an immoral tendency. The popular voice, as expressed in legislative enactments in many of the states, has pronounced the sale of intoxicating liquors on Sunday to be vicious in its effect. That the open, habitual, and persistent disregard of such laws, will encourage vice and immorality, is too plainly proven, by observation and experience, to be successfully controverted. Whether any given act will tend to demoralize the public, must be judged by the standard of morals which prevails to-day, not by that which measured the conduct of men two centuries ago. Therefore, the argument will be far from conclusive, that an act is not to be punished
The rule that a house is indictable where immoral practices are allowed, remains unchanged, but the sense of mankind, at the time when the legal principle is to be applied, must determine what state of facts shall make the citizen amenable to it. As to the form of the indictment, it need only be said that it was held to be sufficient in State v. Williams.
The judgment of the Supreme Court should, in my opinion, be affirmed.
For affirmance—The Chancellor, Dixon, Knapp, Scudder, Van Syckel, Clement, Dodd, Green—8.
For reversal—Hone.
