84 N.J.L. 512 | N.J. | 1913
The opinion of the court was delivered by
This writ brings up for review a conviction of the Lakewood Market Company in a proceeding before a justice of the peace, on a complaint made by Anson J. Eider, one of the fish and game wardens.
The complaint alleged that “on the third day of May, a. d. 1912, one Lakewood Market Company, a body corporate, at the township of Lakewood, in the county of Ocean, did unlawfully have in possession twenty-eight ducks, the same not being black duck, mallard or wood duck, twenty-seven of said duck being known as broad-bill, sometimes called blue-bill, and one of said duck being known as redhead, said third day of May not being a day between the first day of November and the fifteenth day of March, both dates inclusive, contrary to the provisions of the eighth section of the act entitled “An act for the protection of certain kinds of birds, game and fish, to regulate their method of capture and to provide open and close seasons for such capture and possession (Bevision of 1903),” approved April 14th, 1903, as such section was amended March 31st, 1910.
The first reason assigned for reversal is that “there was no legal or sufficient complaint filed with the justice of the peace upon which to authorize the issuing of the summons.”
We think there is no merit in the contention.
The complaint charges a violation of section 8 of the Fish and Game act of 1903, as amended by Pamph. L. 1910, p. 91; Comp. Stat., p. 2508, § 19. That section provides, among other things, as follows:
"It shall be unlawful to * * * have in possession, * * * any duck or swan, other than black duck, mallard or wood duck, excepting only between the first day of November and the fifteenth day of March following, both dates inclusive in each year, * * * Any person violating anjr of the provisions of this act shall be liable to a penalty of twenty dollars for each duck * * * had in possession in violation of this act.”
The exception contained in Pamph. L. 1908, p. 401; Comp. Stat., p. 2516, § 66, is as follows:
"Whenever by the laws of any other state or country it shall .be lawful to take out of the confines of the said state or country any game, whether the same be fowl or animal, it shall be lawful to bring such game within the State of New Jersey,” &c.
We think it was not necessary to negative that exception.
In the early case of Rex v. Jukes, 8 T. R. 542, Lord Chief Justice Kenyon is reported to have observed:
"That this conviction could not be supported because the information did not negative the exception introduced in the clause enacting the offence, viz., that the buttons had been exposed to sale in this instance upon the pattern cards. In like manner as in convictions on the game laws it has always been deemed necessary to negative in the information the defendant’s qualifications to kill game. That the only cases where this was not necessary to be done were where the exception was introduced in a subsequent clause; and there it must come by way of defence on the part of the defendant.”
In Spieres v. Parker, 1 T. R. 144, Lord Mansfield said:
*515 “The first point which has been made is question of form, whether the exceptions contained in the enacting clause of a statute, winch creates an offence, and gives a penalty, must be negatived by the plaintiff in his declaration F The pleader, who drew this declaration, was clearly of the opinion that it was necessary; for he has negatived what he thought to be the exception, and he was right; for it is a settled distinction between a proviso in the description of the offence, and a subsequent exemption from the penalty under certain circumstances. If the former, the plaintiff must, as in actions upon the game laws, aver a case which brings the defendant within the act; therefore he must negative the exceptions in the enacting clause, though he throw the burden of proof upon the other side. Thus it stands on the question of form.”
In Gould Pl. 172, the rule is stated thus:
“In an action on a penal statute, the subject of any exception in the enacting or prohibitory clause of the act, must, in the declaration be excluded by averment; but of: any proviso or qualification in a separate substantive clause, the declaration need not take notice. In the first case the exception is an essential part of the description of the offence or thing prohibited; in the latter, the proviso, &c., is only distinct matter of defence. Thus, if a statute enacts that if any person, not having a certain qualification, as a freehold estate, shall kill certain game, he shall incur a certain penalty, the declaration in an action on the statute must aver that the defendant had not such a freehold. But if the act contains a separate proviso, that if he shall have obtained a license for the killing from a magistrate, he shall not be liable to a conviction, it, need not be stated that he had no such license.”
The loading case in New Jersey on this point is McGear v. Woodruff, 4 Vroom 213. This was an action brought to recover a penalty for violation of an ordinance of the city of Bridgeton. Although the form of procedure was not, strictly speaking, a summary proceeding, yet the trial was of such a summary character that a jury trial was not permitted. The rule is stated by Mr. Justice Depue in the following language:
*516 "In an action founded on a statute, it is only necessary that the plaintiff should show himself entitled, under the enacting clause. If there is an exception in the enacting clause, the plaintiff must show that his adversary is not within the exception; but if the exception is in a subsequent clause in the same section or in a subsequent section of the same act or in a subsequent statute, that is a matter of defence and the plaintiff need not show that the defendant is not within or not protected by the exception.”
The reason given for this rule appears in a subsequent part of the opinion in which the learned justice quotes the extract from Gould on Pleading, above referred to. This doctrine has been approved in Townley v. State, 3 Harr. 322; Roberson v. Lambertville, 9 Vroom 72; Greeley v. Passaic, 13 Id. 90 (reversed in the Court of Errors and Appeals in 13 Id. 429 on another point); Hoffman v. Peters, 22 Id. 244; Plainfield v. Watson, 28 Id. 525; United States v. Cook, 17 Wall. 168.
The case of Vandegrift v. Meihle, 37 Vroom 92, was a summary conviction for violation of the Milk law. It was contended that the complaint was insufficient, because it failed to negative the fact that the milk was not skimmed milk, duly labeled as required by the first section of the act. In support of this contention, the case of Jacobus v. Meskill, 27 Id. 255, was cited. In dealing with this point this court, by Mr. Justice Van Syckel, said:
"The rule applies only where the subject of any exception is found in the enacting or prohibitory clause. Where it is found in a separate substantive or prohibitory clause as in this case, it need not be noticed in the pleadings. In the latter case the Court of Errors and Appeals has held it to be only a distinct matter of defence in the recent case of Mayer v. State, 35 Vroom 323.”
In the case of Conner v. Fogg, 46 Vroom 245, which arose on certiorari to review the conviction of the prosecutor before a justice of the peace for violation of section 24 of the Fish and Game act of 1903 (Comp. Stat., p. 2511, § 35), the rule laid down in McGear v. Woodruff, supra, and the other cases
The only authority in this state which appears to contradict this rule is the ease of Doughty v. Conover, 13 Vroom, 193. This ease supports the prosecutor’s contention. The authority, however, relied upon by Chief Justice Beasley in his opinion, is 1 Chitty’s Criminal Law *284. The cases cited by Mr. Chitty as support for the statement upon which the opinion in Doughty v. Conover is based do not support the doctrine. It is interesting to note in this connection that in the case of Wells v. Iggulden, 5 Dowl. & Ry. 13 (King’s Bench), Mr. Chitty appeared for the defendant and argued for the rule as stated in his treatise on Criminal Law, but the Court of King’s Bench, In an elaborate opinion, decided against his contention. An extract from this opinion is as follows:
“The general rule is, that if there is an exception which constitutes an essential part of an enacting clause, the pleader must negative the exception in the declaration; but if the exception conies after the enacting clause by way of proviso, then it is sufficient for him to show that the facts alleged are within the enacting part of the clause, and what is contained in the proviso must be stated by the other party, by way of plea or defence. In this case, it is clear that the exception comes in by way of proviso, and is not incorporated with the enacting part of the clause. In many acts of parliament parentheses are introduced by way of exception or qualification, and become inseparable from the enacting clause, and therefore the pleader is under the necessity of negativing such exception-or qualification. Eor instance, in the game laws, it is enacted that if any person 'not being qualified shall do so and so,’ those words clearly form part of the enacting clause. But here the exception comes in by way of proviso.”
While the case of Doughty v. Conover does not appear to have been expressly overruled, it has been ignored by this court in subsequent decisions involving the same question, and the rule announced in the case of McGear v. Woodruff has been consistently followed both by this court and the Court of Errors and Appeals.
It is next insisted that the judgment should be reversed because the justice of the peace “was without jurisdiction to try the case.” The specific reason which prosecutor alleges in its brief why the justice did not have jurisdiction is that the summons was defective because it called upon the defendant “to answer unto Anson J. Eider, fish and game warden, prosecutor, who sues for the use of said state.” The prosecutor insists that under chapter 2-17 (Pamph. L. 1911, p. 528) the moneys recovered as fines for violations of the fish and game laws are paid to the board of fish and game commissioners for their use, and that, therefore, the summons should not have stated that the prosecutor sued for the use of the state.
On the other hand, it is contended with much force in the admirable brief presented on behalf of the game warden, that the statement was not inaccurate; that the penalty is, in legal eifeet at least, sued for for the use of the state. It is true that the board of fish and game commissioners is a state board. It has no duties to perform except state duties. It is clothed with state powers. The act of 1911 seems to be merely a provision by the legislature for the support of one of the arms of the state government. This is indicated by other legislation on the subject. The board of fish and game commissioners is required by section 2 of an act passed in
It would seem, therefore, that the money recovered for violations of these acts is actually recovered for the use of the state. It is paid into the state treasury as other state moneys are paid. It is disbursed through the state comptroller. Its expenditure by the fish and game board is regulated by the legislature in every respect. And it may well he urged that the only effect of the act of 1911 is fo appropriate the money collected by the fish and game board to the use of such board without including such appropriation in the annual appropriation bills.
But, however this may he, we think the representation in the summons that the warden "sues for the use of the said state” did not deprive the justice of jurisdiction for two conclusive reasons:
First. The Fish and Game Procedure law (Comp. Stat., p. 2559, § 264) provides that proceedings brought under its provisions shall be entitled and shall run in the name of the
Secondly. Even if the summons be regarded as defective in this respect, the prosecutor has waived the right to taire advantage of such defect by its appearance and subsequent conduct. The prosecutor seeks to avoid the effect of its appearance by insisting that it appeared specially before the justice, merely for the purpose of challenging his jurisdiction and that it made the objection in question. This statement is not, however, supported by the state of the case. It appears therefrom
It is next argued that the judgment must be set aside because the “conviction” does not set forth the evidence upon which it is founded.
We remark that the prosecutor seems to have failed to assign any reason upon which such argument may rest. But however this may be, we think the contention is without merit.
The “conviction” is in the form prescribed by the supplement of 1905 (Pamph. L., p. 184; Comp. Stat., p. 2560, § 269) to the Pish and Game Procedure act of 1897. The act of 1897 (Comp. Stat., p. 2558, § 257) provides for an appeal to the Court of Common Pleas. In prescribing a form of conviction which does not comprehend a statement of the evidence the legislature has not violated any constitutional right of the defendant. Waterbury v. Newton, 21 Vroom 535; Orange v. McConnell, 42 Id. 418; Minard v. Dover Gas Co., supra.
We think the objection without merit. Our constitution contains no provision which limits the legislature as to the size of a penalty which may be recovered before justices of the peace. The question as to whether jurisdiction of matters of this kind should be given to justices of the peace or to other magistrates or judges, is a question to be solved solely by exercise of legislative discretion. In this connection it is to be observed that the justice of the peace in this case is not given the right to finally determine either the law or the facts, for by section 9 of the Fish and Game Procedure act (Comp. Stat., p. 2558, § 257) the right of appeal is given to the Court of Common Pleas of the county in which the case is tried. At the triál of such appeal the case is tried de novo both as to facts and law. Minard v. Dover Gas Co., supra. Moreover, it is apparent from an examination of our statutes and decisions that justices of the peace have heretofore been entrusted with the determination of matters involving property of considerable value, as for example, in landlord and tenant cases. So, too, in Haney v. Compton, 7 Vroom 507, where-the Court of Errors and Appeals held that a statute, which provided that any vessel used in. violation of its provisions should be forfeited and that after seizure of tire vessel, information should be given to two justices of the peace for the county in which the seizure has been "made, “who shall meet at such time and place as they shall appoint, and hear and determine the matter,” was due process of law.
Again, in Day v. Compton, 8 Vroom 514, the owner of a vessel which had been seized under that act replevined the vessel while it was in the custody of the justices of the peace, pending their determination as to whether or not it had been forfeited. The Court of Errors and Appeals (in an opinion by Chief Justice Beasley) held that the jurisdiction of the justices of the peace was exclusive and that the Circuit Court
Lastly, it is contended that the judgment should be set aside because the justice of the peace refused the defendant below a trial by jury.
We think not. It has been repeatedly held in this state that in a summary procedure for the collection of a penalty for violation of a police regulation, neither party is entitled to a trial by jury. One of the leading case's on this subject is Johnson v. Barclay, 1 Harr. 1. Another is McGear v. Woodruff, 4 Vroom 213. These were followed by Shivers v. Newton, 16 Id. 469, and Carter Brothers v. Camden District Court, 20 Id. 600.
The case of Minard v. Dover Gas Co., 47 Vroom 132, was an action brought to recover a penalty of $200 for violation of section 33 of the Fish and Game act. The procedure was identical with the procedure in the case at bar. This court, after reviewing the procedure, used the following language:
*524 “The Eish and Game Procedure act of 1897 permits no trial by jury, the magistrate being required to hear and determine the guilt or innocence of the person accused, but an appeal is permitted to the Common Pleas, which appeal is to be heard in the same way and manner as the case was heard before the magistrate, to wit, without a jury.”
The prosecutor claims, however, that the doctrine of the cases above cited does not apply to the case at bar, because of the size of the penalty recovered in this case. He bases this claim upon a dictum of Mr. Justice Elmer in State v. Zeigler, 3 Vroom 262, and upon the rule adopted by the Supreme Court of New Hampshire in the cases cited by him. This dictum of Mr. Justice Elmer was referred to in McGear v. Woodruff, and in this connection attention was called to the fact that in the case of Johnson v. Barclay, supra, the Supreme Court sustained a summary conviction before a justice of the peace without a jury in a case in which the penalty exceeded $16.
The validity of a provision for the collection of a penalty Dy summary proceedings, without a jury trial, depends, not upon the amount of the penalty to be so recovered, but upon the character of the statute to be so enforced and upon the nature of the offence for which such penalty is provided. This is apparent from a reading of the decisions. It is the rule which has been generally adopted by the courts of other states, and approved by the text-book writers. Prof. Jury Tr., § 95 et seq.
There áre many kinds of proceedings in which a jury trial is not a matter of right. Among these may be mentioned matters properly cognizable before the Court of Chancery, the assessment of damages in proceedings for condemnation of lands, cases in the Orphans’ Court, in the admiralty jurisdiction of the United States courts, in proceedings for contempt of court, and proceedings for forfeiture of property for violation of law. See Scudder v. Trenton Delaware Falls Co., Saxt. 695; Wood v. Tallman, Coxe 153; State v. Doty, 3 Vroom 403; Haney v. Compton, 7 Id. 507, 525.
The conviction will be affirmed, with costs.
