On appeal from the Supreme Court, whose per curiam opinion is printed in 10 N.J. Mis. R. 840.
For the prosecutors-appellants, Raskin & Hornstein (Isidore Hornstein, of counsel).
For the respondents, James A. Hamill (Frank J. Reardon, of counsel).
The opinion of the court was delivered by
HEHER, J. The appellant in each of these cases appeals from the judgment of the Supreme Court, sustaining his conviction in the First Criminal Court of Jersey City upon a complaint charging that he was, on January 24th, 1931, a disorderly person within the intent and meaning of section 1 of an act entitled "An act concerning disorderly persons (Revision of 1898)," in that he was "a common burglar loitering in and upon" a designated street in Jersey City. While each was charged singly with the offense in question, they were jointly identified with the conduct that led to their apprehension, and were tried together. The complaints and convictions are identical in form and substance, and appellants assign the same reasons for reversal. The applicable clause of the statute (2 Comp. Stat., p 1926) provides that "all runaway servants or apprentices, and all vagrants or vagabonds, common drunkards, common thieves, burglars or pickpockets, common night-walkers, and common prostitutes, shall be deemed and adjudged to be disorderly persons." Section 36 provides that it shall be the duty of every constable or other police officer, and lawful for any other person to apprehend, without warrant or process, any disorderly person,
and to take him before any magistrate of the county where apprehended.
Appellants challenge the constitutionality of the clause upon which the complaints were based. They insist that it contravenes the provisions of paragraph 1 of article 1 of the Constitution of New Jersey, and section 1 of the fourteenth amendment to the federal constitution, in that it deprives those coming within its provisions of their liberty without due process of law, and denies to them the equal protection of the laws.
The legislative purpose evidently was to place in the same category thieves, burglars and pickpockets, and to classify as disorderly persons habitual offenders of the character designated. This was a proper legislative function. The power thus exercised is an attribute of sovereignty. At common law a wrong which public policy requires to be prosecuted by the state is an indictable offense. 1 Whart. Cr. L. (12 th ed.) § 15. The police of a state, in a comprehensive sense, embraces its whole system of internal regulation, by which the state seeks not only to preserve the public order and to prevent offenses against the state, but also to establish for the intercourse of citizens with citizens those rules of good manners and good neighborhood which are calculated to prevent a conflict of rights, and to insure to each the uninterrupted enjoyment of his own so far as is reasonably consistent with a like enjoyment of rights by others. 2 Cooley Const. Lim. (8 th ed.) 1223. Blackstone defines the public police and economy as "the due regulation and domestic order of the kingdom, whereby the inhabitants of a state, like members of a well-governed family, are bound to conform their general behavior to the rules of propriety, good neighborhood, and good manners, and to be decent, industrious and inoffensive in their respective stations." 4 Bl. Com. 162. Jeremy Bentham, in his General View of Public Offenses, has this definition: "Police is in general a system of precaution, either for the prevention of crimes or of calamities."
The states, as a part of their police power, have a large measure of discretion in creating and defining criminal offenses.
Shevlin-Carpenter Co. v. Minnesota, 218 U.S. 57; 30 Sup. Ct. 663; 54 L. Ed. 930; Powell v. Pennsylvania, 127 U.S. 678; 8 Sup. Ct. 992; 32 L. Ed. 253; Mugler v. Kansas, 123 U.S. 623; 8 Sup. Ct. 273; 31 L. Ed. 206. "Due process" requires, inter alia, a law creating and defining the offense and an accusation in due form. Stewart v. Michigan, 232 U.S. 665; 34 Sup. Ct. 476; 58 L. Ed. 786; Frank v. Mangum, 237 U.S. 309; 35 Sup. Ct. 582; 59 L. Ed. 969. A statute of this character does not constitute a denial of the equal protection of the laws, where it operates without discrimination on all persons and classes of persons who are similarly situated. United States v. Heinze, 218 U.S. 532; 31 Sup. Ct. 98; 54 L. Ed. 1139; Howard v. Kentucky, 200 U.S. 164; 26 Sup. Ct. 189; 50 L. Ed. 421; Shevlin-Carpenter Co. v. Minnesota, supra.
The manifest purpose of this legislation is to check evil in its beginning and thus to insure the public safety. The statute is not arbitrary or unreasonable. It provides for the apprehension and punishment of a class that menaces the security of persons and property. The word "common" when so employed has a technical meaning, well understood in the law. It imports frequency. Commonwealth v. McNamee, 112 Mass. 285; State v. Russell, 14 R.I. 506. It has been defined as frequent, usual, customary, and habitual. State v. O'Connor, 49 Me. 594; Commonwealth v. Foley, 99 Mass. 497. Webster defines the term thus: "Habitual, professed, or confessed -- used indefinitely in various terms implying illegal or criminal conduct; as a common scold, common thief, common nuisance, &c." The common law made indictable common scolds, common brawlers, common barrators, common drunkards, night-walkers, and persons habitually and openly lewd. 2 Whart. Cr. L. (12 th ed.) § 1715 et seq. Such offenses are a species of nuisance. It is the undoubted function of the state to apprehend ...