*1 PLAINTIFF-RESPONDENT, JERSEY, OF THE NEW STATE CENTER, INC., DEFENDANT- v. FAIR LAWN SERVICE APPELLANT. January Argued December 1955 Decided *2 Mr. the cause for the George argued appellant Heftier (cid:127)& Platoff, Heftier, Mr. Jacob (Messrs. attorneys; Platoff Green on brief). Fusco,
Mr. Ralph Deputy Attorney-General argued Richman, Jr., cause for Grover O. respondent {Mr. Galissi, Pleas, W. attorney; Guy Mr. Prosecutor Bailan, Prosecutor, Jack Mr. Assistant on the Special brief). The of the court delivered opinion was J. an This is from a appeal judgment Oliphan't, County Court the conviction of the defend- Bergen affirming for a violation N. J. 2A ant-appellant 8. :171— law New оbservance Jersey. statute in that of this a violation
The complaint charged an washed automobile 13, 1955 the February appellant on an automo- The defendant operated one Albert Durkovic. Lawn, New Jersey, providing in Pair bile service business automobiles, oil, including gas, the complete servicing The of cars. case washing and automatic repairs greasing, officials of facts and borough tried on a stipulation was to the operation violation with respect made no charge station, service appar- defendant’s gasoline See necessity. a work of theory on the it constitutes ently 2A :171—1. 8. in the municipal convicted originally was appellant a trial Court after County to the and on appeal Bergen court was $20 and a fine of he was found guilty de novo again :169-4, which is under N. imposed *3 County and which the disorderly persons section applying held to this situation. Court applicable and we certi- from this conviction The appellant appealed B. motion. B. 1(a). here on our own fied the cause 1:10 — raised several constitu the appellant On this appeal notice given and this court required tional questions 4:37-2. The to B. B. Attorney-General pursuant to the before us and argued appeal Attorney-General appeared The brief on Pusco. Attorney-General Assistant through Calissi, Mr. Prosecutor was drafted by of the State behalf Assistant Prosecutor County, Special the Pleas of Bergen at Attorney-General argument The Assistant Yalente. he therein, that stated, acquiesced and the prosecutor frankly filed State brief conscientiously support not could in the con and confеssed error for an affirmance and argue the lack of a penalty the defendant due to viction below which the J. statute, upon N. contained :171— However, a confession of error relating was based. complaint matter is not binding the subject to the jurisdiction this court. constitutional to the find a decision with respect
We of the cause and the disposition unnecessary questions or comment determine such questions therefore not we shall of this is the practice regular thereto. Such respect with Ct. L. 72 (Sup. Tp., Michaelson v. Wall court. Grоbart, N. Grobart v. (1950). 1918); of Sabbath law for the observance of our The direct source Acts, 3. See also 1704, ATlinson’s far as back as Days goes statutory Maier, 13 235, 261 (1953). State N. J. S. the immediate predecessor which was section as follows: R. which read 2A :171-1 was 2:207-l ordinary business, worldly employment traveling, or servile or “No necessity except water, upon works land or work either labor or fishing including fishing, shooting, with a charity, and no and seine or hunting, for, sporting, provided net, which is hereinafter any houses, tippling racing, frequenting interludes or gunning, or dancing, singing, fiddling for the sake of plays, other music or long fives, ninepins, bowls, football, merriment, playing bullets at pastimes any playing, sports, quoits, diversions or nor other kind or any person practiced done, performed, within this used or shall be commonly week, day Sabbath, of the or first the Christian state on Sunday. designated as and hereinafter called years upwards, age Whoever, being offends or of fourteen of the pay, every offense, shall, premises, to the forfeit and township poor be com- such offense shall in which of- use mitted, dollar.” the sum of one a penalty. that section сontained It should be noted 2A :171-1 was enacted to 1951, N. J. S. In the Revision of as follows: provide necessity business, except worldly employment works of or “No any person performed practiced charity, within or shall be and this state on the Christian day week, Sabbath, com- first Sunday.” designated
monly and hereinafter called *4 sections, N. nor ensuing Ueither this section 2A :171-2 to 5, any statutory penalty. contain is void that his conviction
The appellant’s position any penalty. does not provide section because this this clause is not the lack of penalty reason for however, to a note referred, We are court to determine. Revision of Committee Advisory the chairman of to Title 2A: Statutes, in the foreword found general object “The of the Revision of the laws J. S. {N. 2A:171~12) changes 2A:171-1 was not to make broad in sub- stance, provisions. but rather to eliminate obsolete It was intended municipalities power, they to leave had, with the theretofore regulate Sunday activity.” control Session, But L. First Special c. sec. provides: 2A, any part “8. In the thereof, construction of the said Title or analysis no any outline or subtitle, of the contents of said title or of chapter, part thereof, or article other no cross-reference or cross- any reference note and no headnote or source note to section of the part said Title shall be deemed to be a of the said title.” Further, this statement be a little may bit broader in its implication than the law existing interpreting prior statutes as hold, to the powers municipalities. Some cases had the municipalities under the right Home Rule Act to supplement the provisions law, of the Sunday Sherman v. Paterson, 83 City N. J. L. 345 Ct. Schаchter (Sup. 1912); v. Hauenstein, 92 L. 104 Ct. 1918); but (Sup. Court, Singer First etc., Criminal 79 N. J. L. 386 (Sup. Ct. 1910), court held a could municipal corporation confer a to violate the right law. provisions Ave., See also City Elizabeth v. 31 N. J. Windsor-Fifth Super. 187, Div. (App. 1954). Penal construed, statutes are to be and while strictly it be said may that it is to be that the presumed Legislature would not denounce certain acts without providing penalty, yet penal cannot rest a mere consequences upon presumption. Such must be and in clear and legislative purpose expressed, direct language.
We find no suсh an intention by language indicating that its was to increase purpose substantially for a violation of the act or vesting municipalities. We cannot supply implication. A law three consists of generally parts: (1) scope law; law; intent the content of the (3) (3) sanction or and this is true penalty, criminal peculiarly statute. A criminal statute without a gwast-criminal pen-
473 is clause of no force and effect. The is an essen- alty penalty tial if statute, to such and none is a court has no specified warrant to if the has failed supply penalty manifest such intention to one. clearly impose author,
The eminent Criminal Law Bishop, ecL), 1 (9th 6, “Indeed, daw,’ sec. states viola- without punishment tion, is in the nature impossible.” of things with unusual states funda- clarity
Blackstone following mental propositions: merely society, against “As to offenses are the laws of which prohibita, se; magistrate temporal mala and not mala in is also empowered penalties transgressions; to inflict coercive for such societies, individuals; who, forming the consent of did power right tacitly expressly sovereign either or invest the with the making laws, enforcing made, by of exercising, upon and of obedience them when adequate non-observance, their severities * ** evil. * * * glories English and it is one of of law moreover our species, always though quantity degree, pun- not or every offense; ishment is ascertained for it is left in any judge, jury, judgment, the breast of nor even of a to alter that every subject ordained, alike, which the has law with- beforehand persons. respect For, judgments private out if were be the opinions judge, magistrates; men then would to their slaves exaсtly society, knowing would live without conditions obligations lays besides, which it them And under. as this prevents oppression hand, on the one so on other it stifles all hopes impunity mitigations; might of himself, with an which offender punishment depended
flatter if his humor on the or discretion Whereas, penalty of the court. an where established is annexed crimes, may consequence law; the criminal their certain read in that ought rule, judge, which to be the unvaried as it is the inflexible Chitty Blackstone, p. *8, of his 4 actions.” *378. This fundamental criminal principle every statute must contain is one рenalty of the foundations our criminal law and is a development from the deep-seated Pound, resentment Star Chamber method trial. See Law, Spirit the Common Where a statute fails to provide a it has been held that uniformly beyond the court to prescribe Evans, penalty. United States v. 333 U. S. S. Ct. Ed. (1948); State Tennessee *6 Mossew v.
Davis, 257, S. Ed. 648 100 U. L. (1880); States, 266 F. 11 A. R. 1261 Cir. (2 1920); United State, E. 733 (1934); 128 Ohio 191 N. McNary v. St. Pa. ex v. Cunningham, rel. Varronne Commonwealth A. 705 (Sup. 1950). 2d Ct. this statute is for the and The Legislature, wisdom instituted, such as effect on a criminal proceeding while its that here, an the most court anomaly the one produces to the result. do is call the attention of can 19 N. J. 443 Edgye, (1955). Dacunzo in this is that due to the lack of penalty Our holding a disorderly person convicted as statute a cannot person fined such for a violation thereof. Such holding as J. S. 2A :171-1 to to the N. strictly applicability limited proceeding. a criminal
The is reversed. judgment Yandekbilt, O. J. (dissenting).
I. 13, 1955, the defendant owned at On Sunday, February business Lawn, Fair an automobile service Broadway, 37-14 automobiles, under roof a complete one service providing oil, as the sale of well gasoline greasing, including cаr day question and automatic On repairs washing. of business was and in place operation, the defendant’s open was so premises cars. washing arranged including to be washed that the automobiles coming upon premises with the operation are able to there without park interfering has been made against No public highway. charge on the oil, theory the sale apparently gasoline for which work of The violation necessity. it constitutes only to car applied washing the defendant was prosecuted Sunday. was court the defendant found guilty In the municipal imposed. N. 2A :171—1 and a fine was $25 J. S. of violation The County the conviction was affirmed. Court appeal On N. 2A :171-1 contentions that the defendant’s rejected was ineffective as a criminal statute for the lack of a penalty clause, and held that does although statute not contain any penalty clause is clear among provisions, :169-4, 2A which is subtitle, 8. of the same part sup- the punishment for such plies County offense. The Court also the second contention the defendant rejected that car was a .and, therefore, work of washing general necessity :171-1, violative of N. J. held business car merely was washing business of convenience to those desire the who of an appearance attractive automobile but choose, do not another, who for one reason or find time six the week days of to effectuate their wish. during stated, Thus the facts seem indeed almost insignificant, *7 innocent, but the decision ease involves far-reaching that consequences use through constantly of increasing the automobile reason and of the advent of suburban сenters and roadside the main arteries shopping shops along traffic and in may affect both business almost living every State. Under the municipality majority a opinion prevent ordinance under municipality may by Sunday selling A. and 8. N. J. A. 40:48—2 and 8. 40:48-1(6) give inhabitants the relative and intended peace quiet cost statutes, but at the only considerable business driving its area from into other which do not see municipalities fit an ordinance whose will pass businessmen free from state control. municipalities, Such on the any hand, other into may degenerate centers Sunday shopping the era week in five-day everybody, almost when lack of free time for Sunday on cannot be shopping except as a justification for urged legitimately selling. considerations of relative we are Passing peace quiet, business these sound standards of a five or witnessing even week in six-day a some communities into the degenerate ethics of the If on, business this movement jungle. goes of the effort our through much suburban zoning preserve rural and much as our areas cities will be possible I believe, These cannot in vain. things, bring myself That ever intеnded. fears are not fanciful is my a article which newspaper appeared press out by borne date line: Jersey the last few weeks under a City written city’s campaign intensifying merchants are a to force “This retail Sundays. principal competitors keep doors locked on Their their highway shopping spring- centers that have been adversaries are the ing up outlying increasing areas at an rate. City 2, 1954, provides Jersey March of $200 A ordinance of fine ninety days anything imprisonment except for merchants who sell products Sundays. A has certain ‘essential’ on series of arrests un- convinced would-be Sabbath salesmen business profitable. day However, report local retailers their of rest becomes they driving highway uncomfortable when beyond see consumers stores city ordinance. the reach only solution, according Jersey City Council, The to the Merchants * * * practice. would be a new state to halt law organized opposition Sunday closing proposals, There is no to the highway campaign bitterly but individual store owners describe the * * *” (New Times, as coercion and restraint trade. Torio 3, 1955). December The instant case of its spite is one seeming insignificance the most in its social and far-reaching business conse- that has ever come before us for decision. quences view is premised on between majority comparison law J. S. and its present (N. 2R:171-1) predecessor fact the former law ex 1) (R. 2:207— while neither pressly provided existing sections, section “nor 2JL:171-2 to 5 ensuing But any statutory penalty.” contain no mention is made *8 of of in applicability general penalty provided 2A the same subtitle I :169-4). Uor can subscribe (N. the view that there is no indication of “an to intention by that its was purpose substantially increase Legislature for a violation of the act or this penalty vesting power in the Fennan Atlantic 88 N. municipalities.” City, v. J. L. France, Atlantic 1916); Ct. 75 N. J. (Sup. City McQuillan & A. 1907); Municipal Corporations (E. 17.15, 23.04, sections 23.07. I feel ed.), Consequently, (3d in this most matter important constrained express my views. independent
II. sections statute pertinent involved this matter all appear 2A, subtitle of Title entitled “Dis- Persons,” orderly which subtitle includes chapters Provisions”; 169R, “General of Persons Con- “Rеgistration Offenses”; victed Certain Persons chapter “Disorderly 171, “Observance of Generally”; chapter Days”: Sabbath 2A 8. :169-1 provides: (including 2A:171-1) may “This subtitle law be cited ” ‘disorderly persons as the law.’ 2A :169-4 provides: N. J. 8. penalty. Except per- expressly provided, “General as otherwise disorderly person adjudged punished imprisonment son shall be county workhouse, penitentiary jail or not more than 1 year, $1,000, or a fine of or not more than both.” 2A :171—1 provides: “Worldly employment prohibited. worldly employ- or business No business, except necessity charity, or
ment works shall be performed practiced by any person or within state on the Sabbath, day week, commonly first Christian called and designated Sunday.” hereinafter It seem
(1) would beyond dispute that the washing of cars is not a work of necessity or charity. The defendant contends, however, that a violation of the law does constitute disorderly conduct either by the terms itself, N. statute J. 8. 2A or by any intent on the :171— part upgrade Sunday law violations to conduct; and by disorderly going beyond section itself the applicable to find penalty, Court County misapplied It construction. that the statutory says statute, N. J. 8. :171-1 all but works proscribing necessity on the Christian charity Sabbath is clear and unambiguous in of consequently reading contrary the well-settled rule that such statutes require no construe-
478 tion, Cork 8 Mundet J. 365 Corp., State N. citing (1952). two
It would
there are
views of
only
appear
logical
the
that the intention of
the problem presented:
first,
Legis-
was
have the
statute consti-
lature
to
violation
the
an offense in
nature thereof
disorderly
tute
conduct or
disorderly
the
for
conduct
and covered
general
2A.T69-4, supra;
secondly,
N.
for
S.
provided
policy
the statute was to be
declarative
merely
public
left
with
to
Sunday activity,
penalties
State
against
to
pursuant
local authorities
local ordinances.
provided
2
of the revisors of Title
contained
The declaration
Senator,
2A
now
Alfred C.
Judge
Clapp,
Title
foreword to
that:
effect
(N.
object
general
laws
Revision
“The
changes
:171-12)
in sub-
2A
to make broad
2A :171-1 to
was
provisions.
stance,
intended
It was
to eliminate obsolete
but rather
had,
power,
they
municipalities
with the
theretofore
to leave
activity.”
rеgulate Sunday
control
these two views because
between
choosing
furnishes no help
have the
power
view the local authorities
either
under
view,
the first
Sunday activity
and regulate
control
—under
have the
ordinances
power
adopt
the municipalities
because
covers
courts, N. J.
which
“Violations
:8-21(d),
title”;
State v.
subtitle 12 of
‘disorderly persons law/
under
second
view
Maier, 13 N. J.
(1953);
have
ordinances
adopt
municipalities
power
because
power,
either under
the police
conduct
regulating
morality,
to deal with
40:48-2,
or under
N. J. S.
Elizаbeth v.
City
J. S. 40:48-1(6);
Windsor-Fifth
1954).
Div.
Avenue,
Super.
(App.
criminal statute must
that every
hornbook principle
It is
here
with
to the offense
respect
a penalty
provide
a court
statu-
unless
imposed by
can be
no penalty
involved
it is
funda-
therefor. But
equally
is made
tory provision
be deemed to have
will not
the Legislature
mental
contrary
equally
if
intent
act,
meaningless
intended a
*10
aseribable to it. Particularly
is this so when
with
dealing
such a basic
as is here
proposition
involved with far-reaching
I
effects as
have indicated on our mode of
and our
living
methods of
customary
business.
In
doing
regard
Evans,
of United States v.
case
333
U. S.
483,
at page
486,
S. Ct.
634,
636,
68
at
page
L. Ed. 823
92
cited
(1948),
as
majority
authority for
is
position
pertinent:
“*
* *
Congress
clearly
purpose
where
has exhibited
proscribe
conduct within its
to make criminal and has not
altogether
provision
penalty, every
presump
omitted
reasonable
proscription
require
tion attaches to the
the courts to make it
purpose.
effective in accord with the evident
This is as true of
penalty provisions
Brown,
as it is of others. United
States
18,
U. S.
[92
See also Mr. Justice Frankfurter’s observation in the Sixth Annual Benjamin Cardozo Lecture before Association of the the City Bar of of New York entitled Some Reflections On The Reading Statutes: “Legislation aim; mischief, has an it seeks to obviate some
supply inadequacy, change policy, an to effect a to formulate a plan government. aim, policy drawn, nitrogen, That is not like air; language statute, of the out is evinced in the of the as read light purpose. of other external manifestations of That judge effectuate, ought what the must seek and and he not to be led subjective design. off trail tests that have overtones of We are subjective. anything not concerned with We do not delve into the legislators draftsmen, mind of or their or committee members.” 47 527, (1947). Ool L. R. 538-539
Serious consideration of the of the history act itself and N. J. 2A: statutes, kindred S. Subtitle N. J. S. A. 23:3- 12, N. J. S. A. A. :4-24, S. 23:5-24.4 24.11, R. me leads inevitably to the natural conclusion 45:4— of the purpose act was to prohibit Sunday activity on a statewide basis and effect to give such prohibition general penalty provisions of N. J. S. 2A :169-4.
In section 169-1 of Title 2A we find definite statutory Subtitle expression that the entire which inсludes the "observance of Sabbath Days” sections (171-1 to is to 12) be law.” What more cogent
cited as “disorderly persons the sections of these basis could found for interrelating four 12 than the expression legis- of Subtitle chapters the entire subtitle as a law lative desire to designate govern- ? An disorderly analysis penalty provisions ing persons shows that making of the four chapters Subtitle statutes were taken in they revision some sections of prior in part and some were appeared sections previously changed were In some cases extensively. penalties some and these sections were adopted already provided expressly *11 in of sections in the revision came that form. A bulk great a of misdemeanors disorderly as result of the to downgrading was made conduct, in which case penalty provision a general would have provision or else and necessary repetitive express in Instead of this procedure had be made each section. to clause was made applicable. a penalty general Law sections Sunday It be said thаt because cannot as disorderly persons not violators do specifically designate prevents disorderly any applica- or as of conduct being guilty Violators of the penalty provision. tion the general of disorderly per- are Persons Law” “Disorderly unquestionably I, therefore, such terms deem the absence of any sons and significance. not to be of any controlling pro- of this law are to be as punished expressly Violators e., 65, 2A sections, in i. J. 8. vided for the particular :170— are penalty provision and in the absence any special accord with the expressions generally be in punished 2A :169-4. J. section —N. 8. penalty applicable intended to make that the not Is it conceivable law” “disorderly persons relating the provisions 2A :171-1 to J. S. Days” 12) of Sabbath (N. “Observance other and for yet provide penalty offenses punishable F titles N. J. A. 23:L- in other 8. offenses statutory similar 1953, still 24, prohibits hunting amended in recently or fields on under the woods gun carrying 23:5-24.4, N. J. A. offense. S. $20 for each penalty 5, amended, as 612, prohibits section p. c. $50 under penalty nets on each with fishing offense, 23:5-24,11. A. R. S. 45:4r-26 has long work prohibited any on under a barbering Sundays of a fine not $25 or exceeding imprisonment more than for the days first offense and double that for each subse offense. Has quent out these acts Legislature singled then make punishable other worldly employ ments or business covered by N. S. 2A:171-1? To say yes would be to strain on our of construction. See Smith, Jurisprudence Munroe in a View General Euro pean Papers and Other Legal History at (1927) particularly 352-353. The pp. majority has vitiated a positive legislative act, not scope judicial function exceeding as mоre interpretation case, is often the but legislative translate command. failing Legislature’s Frankfurter, Statutes, Some on the Beading supra, Reflections Gol. L. B. 529. next defendant the act in issue (2) urges un- so (N. :171-1) ambiguous vague certain face as deprive people of State their without liberty due of law. property process claims the abstract terms used as Specifically, stand- ards of can sustained definite if guilt sufficiently only the terms have a technical or other well special meaning, known to enable those with of our lan- enough knowlеdge *12 them It that apply correctly. to the words guage complains “business,” “worldly,” “employment,” and “necessity,” are so of a variety “charity” capable meanings, depending determinations, on called to make who is when upon circumstances, as under what to render such standards void. what example, Eor is to says, worldly jury one or court be not to another or may jury court worldly similarly, one be a what is not necessity may necessity a another. circumstances, claims, these the defendant Under the statute in violates the State and EedeTal Constitutions. question
I find no merit defendant’s under this argument This can be type approach with almost point. indulged statute on our books. Significantly, Court any Supreme Pennsylvania, a statute of that state construing eon-
482 “business,” “worldly,” “employment,” words the same
taming ex rel. v. in Commonwealth “charity,” “necessity,” 290 Pa. Philadelphia, Club Baseball American stated: L. R. 1027 497, 500, (1927), 53 A. A. * * * proposition, appellant’s the act is unconstitu- “On very required uncertainty, to be said. little is for we think tional * * * years, for 133 and has books It has been on statute judicial language subject its much consideration. When been the meaning strained, construсtion, ordinary, given its we is its may plain. do not wish to understand be that those who It think ** provisions can see uncertain *. We find them or abide argument act violates the Four- basis whatever for the no Amendment to the Federal Constitution.” teenth that the law is Sunday The defendant next contends (3) intent, edict, in origin designed religious religious objects and in particular, both in general aid religions, therefore, and, pro- contravenes sectarian unmistakably Constitutions, Federal and our State prohibiting visions of the the First and Fourteenth interference with state religion; States, 1ST. of the Constitution United Amendments 3, 4 and Constitution, I, Article paragraphs laws observance It has been long recognized free- religious unconstitutional infringements are not The statute in in either Constitution. provided doms the establishment of any religion not involve does question any the free exercise of religion. any against or prohibition reli- it make attendance upon church nor does It sets no up It does not compulsory. obligate or worship services gious church does it prefer nor repair any anyone support or sect. any Although against rеligion one or discriminate philosophy current religious origin, laws have a the trial court: well expressed was * * “* physical, of mankind intellectual and moral welfare particular labor, day requires periodic from and as some of rest fixed, naturally day is that which is most selected must the one * * *” greatest regarded number citizens. as sacred Friedman, Y. E. 302 N. 2d v. See People Crowley, U. S. 1950); Hing Soon App. (Ct. *13 S. Ct. Ed. 1145. See also cases collected S., in 83 C. J. Sunday, p. § The defendant
(4) finally contends that the Sunday law is an invalid exercise of the State’s bears poliсe power, no real or substantial relation health, morals, to the public It also safety, convenience. the provisions of urges this law are on their discriminatory face contain excep- tions their provisions which have no rational basis and thus deprive defendant of its right equal protection I of the laws. am these unimpressed The arguments. rationale that is everywhere used to sustain laws under the is that police may State protect citizens from moral physical or debasement which comes from labor; were uninterruptеd they not the deleterious obligatory effect would soon become evident, Hing Soon v. Crowley, The as to the supra. argument equal of the law protection answered may briefly whatever discrimina- saying tion exists reason some activities as excepting against others valid is has bases and certainly arbitrary. law for the purpose general good welfare and should be public construed in favor liberally and as within the validity constitutional being power of Legislature.
I would affirm the conviction.
Mr. has Justice authorized me to Wacheneeld say he joins this opinion.
For reversal—Justices Heher, Oliphant, Burling, and Brennan —5. Jacobs For Justice Vanderbilt, and Justice affirmance —Chief
Wacheneeld —2.