On appeal from the Essex County Court, Law Division.
For affirmance -- Chief Justice Vanderbilt, and Justices Case, Heher, Oliphant, Wachenfeld, Burling and Ackerson. For reversal -- None. The opinion of the court was delivered by Case, J.
This appeal, certified to us on our own motion, brings up a judgment of the Essex County Court which, on defendant's appeal from a judgment of conviction in the Municipal Court of the Town of Montclair, found the defendant guilty of violating section 28, par. (c) of the zoning ordinance of the Town of Montclair and imposed a fine of $100 and costs. On the appeal the defendant made demand for a trial by jury, which was denied.
Defendant was the owner, by deed of record, of the premises in question. He made application, as owner, to the Building Department of the Town of Montclair for a permit to construct a cement block garage 30 feet in width, 22 feet in depth and 10 feet in height. A permit issued accordingly. What defendant actually erected was a garage 30 feet 6 inches in width and 27 feet 9 inches in height, containing a second floor and above the second floor a loft floor. The zoning ordinance defines the height of a building with a sloping roof as the "vertical distance measured * * * from the curb level to a point one-half (1/2) the distance between the top of the plate and the highest point of the roof" so that, for the purposes of the litigation, the height of the garage was 20 feet 2 inches. The premises are within Zone R-3 as set up by the town zoning ordinance which, in its section 28(c), provided that "accessory buildings 15 feet in height or over shall be set back from any lot line not less than one-half
(1/2) the height thereof," a requirement which in this case called for a setback of ten feet one inch from the side and rear lines. The garage, although construction was halted short of absolute completion, was obviously in violation of the ordinance. On January 30, 1948, the town filed a complaint against the defendant upon which there was a conviction and a fine in the amount of $200, of which $150 was suspended on condition that the defendant apply to the Montclair Board of Adjustment for a variance. The defendant did make such an application, but the application was denied. Following the denial of the application, and after a further period of almost a year during which the defendant had failed to take any corrective action, the town again caused a complaint to be lodged and on this, too, obtained a conviction. The defendant retained the building with its objectionable features, whereupon a series of complaints were filed, one of which was prosecuted and resulted in the judgment now before us.
Defendant contends that the erection of the building and the retaining of it on the premises with its violative features is not a maintenance within the meaning of the statute; a point which we think needs no further attention than to say that it is not well made. He also contends that he really is a trustee in the ownership and in whatever maintenance there has been, and that, consequently, he may not be adjudged guilty in his individual capacity. This point also needs but little attention. Assuming the fact to be that, notwithstanding the deed lodges the title in him individually and the applications for permission to proceed under the ordinance were made by him individually, his relationship to the title is that of trustee, nevertheless he is individually responsible to the law for infractions by him of ordinances and statutes and is properly held thereto in his own person. He further alleges that the ordinance provisions are not reasonable as to him; and in this point, too, we find no merit.
The defendant further contends that "The ordinance to be enforced in the manner suggested by the municipality violates Article I, par. 12 of the New Jersey Constitution
and the Eighth Amendment of the United States Constitution." It appears to be appellant's contention that if he were found guilty of an offense for every day during which the violation has continued and were sentenced to the maximum permitted by the ordinance for each of those days, the fine would be excessive and the punishment cruel and unusual. But he has not been so found and he has not been so sentenced. R.S. 40:49-5 provides that a governing body may prescribe a penalty for the violation of ordinances it may have authority to pass either by imprisonment in the county jail or in any place provided by the municipality for the detention of prisoners for any term not exceeding 90 days, or by a fine not exceeding $200, or both. We are not called upon to determine the validity of the various sanctions which might be applied under the ordinance and the statute. Independent Warehouses, Inc., v. Scheele, 134 N.J.L. 133 (E. & A. 1945). The punishment actually imposed was not excessive in constitutional intendment.
The point which was deemed by us to be of sufficient importance to call for a reargument is that the defendant was entitled to a jury trial. The basis upon which that argument was advanced is that R.S. 2:225-18 provided that "every conviction for violating a town ordinance * * * with or without a jury trial, may be reviewed by appeal to the court of common pleas of the county in the same manner and upon the same terms as appeals are or may be taken from the small cause courts * * *," and R.S. 2:33-121 provided that appeals from the small cause courts "shall be heard and determined by the judge of the court of common pleas without a jury, unless a demand for a jury is made in writing * * *." Adding those statutory provisions to the New Jersey constitutional provision with relation to jury trials, appellant argues to substantially this effect: R.S. 2:225-18 was originally passed as sec. 2 of ch. 194, P.L. 1907, and was still in force at the adoption of the Constitution of 1947, which provides in Article I, par. 9, that "The right of trial by jury shall remain inviolate * * *"; therefore defendant was vested with the right, which it is beyond the province of the court
or Legislature to extinguish, to be awarded, on appeal, the jury trial for which he asked.
A similar provision was in Article XXII of our Constitution of 1776 in the following language: "* * * the inestimable right of trial by jury shall remain confirmed, as a part of the law of this colony, without repeal, forever." The 1844 Constitution, Article I, par. 7, provided: "The right of trial by jury shall remain inviolate * * *." Article I, par. 9 of the 1947 Constitution re-enacted the provision in that precise language. The right of trial by jury, which was thus confirmed and retained inviolate, is not and has never been a right which a defendant could invoke in all instances, even in charges of a criminal nature. It is and has been applicable only in those matters in which it existed anciently under the common law. Contemporaneous construction by legislative bodies, accepted as of course by the bar, the courts and the people generally, make this clear. The early compilations, reflecting the conception under the then current common law practices, contained many statutes setting up qui tam actions. Chapter XII of laws passed between 1682 and 1702 (Leaming & Spicer, Grants and Concessions, p. 240) made profane swearing an offense cognizable before a justice of the peace and punishable by fine, distress of goods and, on default, setting in the stocks of one over 12 years of age and whipping if under that age; and chap. XIII penalized drunkenness, and chap. XV, profaning the Lord's Day, likewise on trial before, and conviction by, a justice of the peace. XII George Second (1738-1739) Allinson, pp. 99-102 (continued by XV George Second, Allinson, p. 122), provided for the trial and punishment by two magistrates of persons charged and by them found guilty of larceny under the value of 20 shillings. In 1798, while the Constitution of 1776 was still a relatively new expression of fundamental law, a comprehensive vice and immorality act was passed authorizing justices of the peace to try, convict and punish by fines, or on default by sale of goods and chattels, and setting to the stocks or committing to jail (Paterson, p. 329); and in 1799 a disorderly persons act was passed providing for trial before a
justice of the peace, and, as punishment, sentence to the workhouse at hard labor for any time not exceeding three months (Paterson, p. 410). These statutes are selected at random for the purpose of demonstrating, by enactments either concurrent with the period in which the common law prevailed or passed during the period which immediately followed the first constitutional protection of right of trial by jury, that the right was not pertinent to every defendant on every charge.
The thread of appellant's argument is that each constitutional provision speaks anew as of the time of the adoption of the instrument of which it is part and includes such legislative provisions as are on the statute books at the time of the adoption, however recently theretofore the statutory provision had been passed. We find otherwise. The right of trial by jury protected in each of our Constitutions is the right as it existed at common law and remained on July 2, 1776. The provisions under study, as well as the command that no person shall be held to answer for a criminal offense unless on the presentment or indictment of a grand jury -- Article I, par. 8 of the 1947 Constitution and Article I, par. 9 of its predecessor -- alike have relation to the substance of the common law. Each succeeding Constitution undertook to preserve, inviolate, the right as it had originally existed and which the 1776 instrument ordained was to be "without repeal, forever."
Chief Justice Beasley, speaking for the Supreme Court in State v. Doty, 32 N.J.L. 403 (1868), said:
"The constitutional declaration is, that 'the right of a trial by jury shall remain inviolate,' and the effect of the clause is to establish the privilege by the highest of sanctions, but not to enlarge it. The provision operates as a restraint upon the legislative power; the right is not to be impaired or diminished, but is to remain as it existed at common law, and according to the practice of the courts anterior to the establishment of the fundamental law."
Thus our courts, 24 years after the adoption of the 1844 Constitution, stated that the subject of the bulwark was the right of trial by jury as it existed at common law. Again, Mr. Justice Trenchard, holding the opinion for the Court ...