From a conviction in the Municipal Court of Glen Rock for a violation of an ordinance of the said Borough, the defendant has appealed to this court.
Written notice of the date of hearing was served upon the Prosecutor of the Pleas of the County who has asked to be excused from acting in this suit on the ground that the State of New Jersey is not a proper party to this action and that he does not represent either the complaining party or the Borough of Glen Rock. The defendant-appellant contends that the State is a proper party and that by virtue of Rule 2:11, paragraph (h) , the Prosecutor of the Pleas should appear and act on behalf of the state at the hearing.
It should be observed at the beginning that while it is named as a party, the State of New Jersey has no pecuniary interest in the enforcement of local ordinances, but that the Borough of Glen Rock has such an interest because the fines collected go to the Borough (R.S. 40:87-46).
In the early history of this state such ordinances were usually enforced, because of charter provisions, by a civil action, customarily an action in debt, sometimes in trespass or assumpsit , and sometimes in a qui tam action. See: Tyler v. Lawson, Treasurer , 30 N.J.L. 120 (debt); McGear v. Woodruff, Treas. , 33 N.J.L. 213 (debt); Meyer v. Treas. of Bridgeton , 37 N.J.L. 160 (debt); Brophy v. Perth Amboy , 44 N.J.L. 217, at 219 (qui tam); Buck v. Danzenbacker , 37 N.J.L. 359 (trespass). It was not until long after the illuminating decision in Johnson v. Barclay , 16 N.J.L. 1, that the enforcement of ordinances by summary proceedings came into more universal use. To the present day the trend of opinion, when the procedure is ambiguous, is to hold that the proceeding is a civil suit. State Board v. Curtis , 94 N.J.L. 324 (affirmed, 95 N.J.L. 551), and see State v. Lakewood Market Co. , 84 N.J.L. 512.
There has not been submitted to me any copy of the ordinance alleged to have been violated. Assuming that the procedure called for is a civil action, I think it is clear that Rule 2:11 does not apply. It appears in the Rules under the heading "Rules Governing Criminal Practice in the Superior Court and County Courts." Furthermore, Rule 2:1-1 provides that "these rules govern the practice and procedure in the Superior Court and County Courts in all criminal proceedings and in so far as they are applicable, the practice and procedure on indictable offenses in all other courts except the Juvenile and Domestic Relations Courts."
Rule 2:11 provides: "The only method of reviewing a judgment or order in a criminal cause or proceeding in an inferior court of limited criminal jurisdiction shall be by appeal as herein provided." Applying the doctrine noscitur a sociis , the rule applies only to criminal causes or proceedings of a like nature and not to a civil action to enforce the penalty of an ordinance.
Assuming, however, that the ordinance may be enforced by a summary proceeding, a different situation exists, for a summary proceeding to enforce an ordinance is generally described as quasi -criminal although it has been recognized
by the courts of this State that a summary proceeding may be a civil suit. See Cahill v. Pennsylvania R.R. Co. , 56 N.J.L. 445, and State Board v. Curtis, supra.
If the procedure called for to enforce the ordinance in question is summary in character, and the action is quasi -criminal in its nature, is it covered by Rule 2:11 and, if so, must the ...