State v. HollandState v. Holland
- Reporters:
- ,
- Before:
- Halpern, Crahay, Ackerman (per curiam)
PER CURIAM.
The defendant was found guilty after trial in the Municipal Court of South Orange of the charge that, in violation of Article 4, Section 15-25(b) of the Revised Ordinances of South Orange, between May 1 and June 1973 he permitted noise of such character, intensity and duration at 300 Valley Street, South Orange, as to disturb the comfort and repose of neighboring individuals. He was fined $100 plus $10 costs. He filed an appeal to the County Court, and upon the decision of that court that the ordinance was invalid, this appeal was filed by the Village.
Article 4 of the Revised Ordinance is entitled “NOISE“. Section 15-25 provides as follows:
15-25. Creation of loud or unnecessary noise prohibited.
(a) The making, creation or permitting of any unreasonably loud, disturbing or unnecessary noise in the Village is hereby prohibited.
(b) The making, creating or permitting of any noise of such character, intensity or duration as to be detrimental to the life, health or welfare of any individual or which either steadily or intermittently annoys, disturbs, injures or endangers the comfort, repose, peace or safety of any individual is hereby prohibited.
I feel that Section [15-25(b)] is not constitutional, in that it bans noises of certain characters without any weighing of the necessity of them.
He further stated:
In the case before me I don‘t have the word `unnecessary’ used in Section [15-25(b)]. I don‘t think that I can in propriety borrow a word from Section [15-25(a)] to lend it to Section [15-25(b)] to make an ordinance valid.
We are of the opinion that he erred and reverse.
It has long been established that municipalties in this State have the authority to adopt ordinances regulating or preventing loud, disturbing and unnecessary noises which are detrimental to the public health and welfare.
In legislating with respect to disturbances of the peace and, specifically with respect to noise, it is recognized that the very subject matter renders specific and precise definitions of prohibited conduct difficult to formulate. Whether a given noise disturbs the public peace depends upon the circumstances of the particular case, and it is impractical to spell out rigid legislative criteria. It is therefore well established that in this regard, where the conduct intended to be prohibited is not fairly susceptible of definition in other than general language, there is no constitutional impediment to its use. The fact that there may be marginal cases in which it is difficult to determine the side of the line on which a particular fact situation falls is not a sufficient reason to hold the language too ambiguous to define a penal offense. State v. New York Central R. Co., supra, 37 N.J. Super. at 47-48; State v. Smith, 46 N.J. 510 (1966) cert. den. 385 U.S. 838, 87 S.Ct. 85, 17 L.Ed.2d 71 (1966). In the latter case, where the Supreme Court sustained a statute which provided that “Any person who
“... defendant says the statute is void for vagueness because it does not spell out the degree of noise or the details of a disorder which will offend. Of course, the statute does not do so in specific terms, and it may be doubted that the ingenuity of man could meet that demand if the Constitution made it. But the Constitution does not insist upon the impossible. It asks only what the subject will reasonably permit, and hence if there is a public interest in need of protection, due process does not stand in the way merely because the subject defies minute prescription“. [at 518].
In applying these principles, a reviewing judge should not give undue emphasis to the presence or absence of a single word. The import of the ordinance should be examined in the context of the entirety of its language. The title of the ordinance may be referred to in aid of its construction, and it has long been settled that the disjunctive “or” in an ordinance or statute may be construed as the conjunctive “and” if to do so is consistent with the legislative intent. See Baum v. Cooper, 131 N.J.L. 574, 575 (Sup. Ct. 1944); Murphy v. Zink, 136 N.J.L. 235, 239 (Sup. Ct. 1947) aff‘d. 136 N.J.L. 635 (E. & A. 1948). Moreover, as pointed out in State v. New York Central R. Co., supra, 37 N.J. Super. at 48-49, the language in an ordinance prohibiting an activity tantamount to a common law nuisance may be defended for adequacy of definition of the offense on the basis of the common law construction and application of the language in the definition of such a nuisance. Indeed, when one examines the precedents, it is perfectly clear that the draftsman of this ordinance was not simply improvising on his own. He drew upon common law definitions and upon the text of other ordinances which have passed constitutional muster.
In confining his decision in the manner in which he did to a consideration of the narrow question of the effect as a matter of grammar of the presence of the single word “unnecessary”
From the beginning our cases dealing with nuisances based upon noise have held that the matter is a relative one, requiring the weighing of the competing interests and rights of the parties in each case, and that to constitute a nuisance and a disturbance of the peace a noise must be an unreasonable one in the circumstances or cause material annoyance. The leading case, and the one most often cited, is Benton v. Kernan, 130 N.J. Eq. 193 (E. & A. 1941) which laid down the test that “A noise may constitute an actionable nuisance ... but it must be a noise which affects injuriously the health or comfort of ordinary people in the vicinity to an unreasonable
The judge below should have taken guidance from the above authorities, and should have held, as urged by appellant, that Section 15-25(b) prohibits unreasonable or unnecessary noises. He should have read such qualification into the text of the ordinance by using any one or all of the following methods in aid of statutory interpretation. He could have applied the principles of noscitur a sociis, drawing upon the text of the ordinance in its entirety including Section 15-25(a), which contains both the words “unreasonable” and “unnecessary“. He could have looked to the title of Section 15-25, “Creation of loud or unnecessary noise prohibited“, and, following Baum v. Cooper and Murphy v. Zink, supra, held that the word “or” should be read as “and” with the consequence that Section 15-25(b) be construed to prohibit
Judge Conford‘s decision in State v. New York Central R. Co., supra, provides a persuasive precedent for this interpretation of the ordinance. Baum v. Cooper, supra, relied on by the court below, does not require or justify a contrary result. There a municipal ordinance, entitled “An ordinance to suppress and regulate loud and unnecessary noises and to prevent nuisances ...“, provided that it was unlawful to “make ... any loud, unnecessary, improper or offensive noises ... which either annoys, injures or endangers the comfort, repose, health or safety of other persons“. The defendant, who was convicted in the municipal court of violating the ordinance, had operated a machine shop for 25 years, starting when the neighborhood was sparsely inhabited, if at all, and he had taken on additional work causing an increase in noise because of the war. This apparently prompted the
The language descriptive of the noise may be taken either conjunctively, reading the word “or” as equivalent to “and” (Standard Underground Cable Co. v. Attorney-General, 46 N.J. Eq. 270 (at pages 272, 277)) or disjunctively. The former seems indicated by the phrase “loud and unnecessary noises” in the title. On that theory, the evidence does not support the conviction. The noises of a machine shop are doubtless loud; but it cannot be said they are intrinsically unnecessary, improper, or offensive, and the proof fails to indicate any of these characteristics. On the other hand, if the language be construed disjunctively, a “loud” noise without more, would fall under the ban, though it were the whistle of a train, the noise of an automobile horn, or the gong of a trolley car: and it is worthy of note that these every-day noises are specifically mentioned in the ordinance. So construed, it is plainly unreasonable and ineffective.
In either aspect, therefore, the conviction was illegal, and accordingly will be set aside, with costs. [131 N.J.L. at 575-576].
The court in the Baum case did not hold that the ordinance before it was unconstitutionally indefinite, and its remarks must be taken in the light of the specific case before it. See State v. New York Central R. Co., supra, 37 N.J. Super. at 49.
We therefore conclude that the proper construction of Section 15-25(b) is that it prohibits “loud and unnecessary” noises, i.e. those which are unreasonable in the circumstances, and that as so construed, it fairly apprises the public and the defendant of what it proscribes. It is not unconstitutional for vagueness.
One additional point requires mention. We have considered the merits of this appeal on the assumption that the court below and the parties were proceeding in accordance with the specific terms of
The question is one of appealability under the rules. State v. Sims, 65 N.J. 359 (1974); State v. Kluber, 130 N.J. Super. 336 (App. Div. 1974). The court below was, of course, free to schedule the “trial” of the matter before it to comply with the rules and to revise or change such scheduling if necessary. Normally, since the trial of an appeal of this type by the County Court pursuant to
We also note that the judgment entered by the county court was one that the defendant was “not guilty“. The proper judgment to be entered, in view of the basis for the court‘s ruling, was one of dismissal of the complaint.
Reversed and remanded to the County Court for further proceedings in accordance with this opinion.