On appeal from Cumberland County Court, Law Division.
For affirmance -- Chief Justice Vanderbilt, and Justices Heher, Oliphant, Wachenfeld, Burling, Jacobs and Brennan. For reversal -- None. The opinion of the court was delivered by Wachenfeld, J.
The Western Union Telegraph Company and Frake, its manager, were indicted and convicted of operating a common-law disorderly house in Cumberland County. The indictment arose out of the sending by the defendants of messages from Bridgeton to one Donaldson in Passaic County and to C. J. Rich & Company in Illinois and the payment in Bridgeton of money wired there by Donaldson and Rich & Company. The messages out of Bridgeton related to wagers on horse races and the money orders transmitted sums of money to the addressees for that purpose. The money orders back to Bridgeton represented the winnings less the charges made.
The State proceeded upon the theory that a disorderly house was proved by showing the defendants habitually received and transmitted at the Bridgeton office bets on horse races through the medium of telegraphic money orders and messages and payment at the office of the winnings on the bets less telegraphic charges.
The prosecutor of the county testified he initiated an investigation concerning the operations of the defendant company and in June 1948, at his direction, a State Police detective went to the Bridgeton office, prepared a horse bet on a regular telegraphic blank addressed to J. W. Donaldson, State of New Jersey. When he handed the bet to an employee, she altered the form of the message, telling the detective it would be cheaper and it would be understood in the revised cryptic form since that was the way they sent all such business. The horse on which the bet was made won and the detective returned the next day to collect his winnings.
As a result, the prosecutor sent for the manager and advised him the company had been taking horse bets for quite some time and it amounted to ordinary bookmaking, in violation of the law. Shortly thereafter, at a conference of the various representatives of the company, the prosecutor testified he told them they were carrying on an illegal business at the Bridgeton office which amounted to bookmaking.
One of the company's agents argued that the company was required to take these telegrams, and a discussion ensued. The prosecutor, according to his version, finally warned them that as far as he was concerned they were engaged in illegal activities, insisted it stop, and said he would hold them responsible.
The company's representatives, however, testified the prosecutor declined to specify or discuss the illegality of the transaction, saying he did not know what statute was violated and therefore could not cite any, but he would write to the Attorney-General for an opinion and it would probably take a few months for a reply.
There was also testimony that the Western Union could continue its existing practices until the prosecutor received an opinion from the Attorney-General, and the suggestion was made that the company have an opportunity to confer further before any action was taken by the State if it turned out the Attorney-General's opinion was adverse to Western Union's position.
Following this conference and the warning alleged by the prosecutor, individuals continued to place bets at the same office on many occasions, and in the afternoon on one of the days on which these transactions occurred, the Deputy Attorney-General and a lieutenant of the State Police entered with search warrants. They seized and impounded those messages referring to horse race bets. This occurred seven months after the conference above referred to.
The acts constituting the unlawful practice which occurred at the Bridgeton office of the Western Union were described by a great many witnesses. In fact, the course of conduct ascribed to it seems not to be denied. One witness testified
she went there to bet on horses and told the girl behind the counter: "I want to play horses -- bet on the horses." Another one identified 59 telegrams as her bets and pay-offs, while a third identified 99 bets and pay-off messages, including "parlays and round robins."
A man credited his knowledge as to the way and manner of betting to the information received at the defendants' Bridgeton office showing him how to express his bets on telegraphic forms, including parlays and daily double bets. He identified 91 telegraphic messages as his, while another man who frequently bet several hundred dollars on a race identified 70 telegrams representing some of his transactions. Another witness played every day, many times placing two or three bets in one day. He identified 106 telegrams expressing his views on the horses. Another daily player identified 261 telegrams as his contribution.
Often there would be 20 to 25 people in the office sending telegrams to Donaldson. Racing forms were lying around the office, and the employees of the defendant would help customers in sending out their betting messages and money orders, advising them how it should be done. Approximately 8,000 money orders issued out of the Bridgeton office to Donaldson and Rich & Company during the six months from November 1949 to the raid in April 1950. They showed a total sum bet of $103,466.98, with total telegraphic charges of $11,119.51.
The State's case was abundantly supported by many witnesses, and much of the testimony was not denied. It indicated betting was habitually carried on with the conscious participation of the company in the illegal transactions and its facilities were employed in large-scale gaming business which was financially profitable.
The investigation resulted in the return by the grand jury of five indictments, only one of which we are concerned with here, to wit, the keeping of a common-law disorderly house.
The defendants were also indicted for a violation of R.S. 2:135-3, aiding and abetting bookmakers and keeping a statutory disorderly house; violation of R.S. 2:119-1, conspiring
to make book; violation of R.S. 2:119-1 by a like conspiracy; and violation of R.S. 2:171-3, knowingly carrying messages in aid of an illegal purpose.
Western Union contended the theory adopted by the State would constitute a direct and prohibitive burden upon interstate commerce. It proved it was the sole telegraphic system serving the entire country and had been in existence for 100 years, transmitting messages since 1851 and money orders since 1867; it had 15 reperforator switching centers in the United States through which all messages were automatically relayed. The Philadelphia center handled an area which included New Jersey, and all messages originating in New Jersey for delivery anywhere within or outside of the State passed on wire from the transmitting office to Philadelphia, whence they were routed by a push-button system to offices of destination.
Western Union offered proof tending to show that the imposition of the responsibility attempted to be placed upon it would frustrate the service because it could not find employees with necessary legal knowledge to apply all the laws of the State relating to criminal and unlawful activities. Even if this were possible, the time consumed in performing this function would multiply the number of employees and agents needed, and the necessary element of speed would be destroyed in analyzing the messages, and other difficulties would occur.
It sought to demonstrate the difference between its ease of compliance where a state law definitely and specifically prohibits taking betting messages as opposed to compliance here, where it was contended the company would be required to make a decision construing the applicable statutes on every transaction indulged in.
The jury returned a verdict of guilty and the defendants appealed, the cause being certified here on our own motion.
The appellants argue that the concept of a disorderly house as applied in this case violates the Constitution of the State
and of the United States. They approach this subject under the following subdivisions: (a) freedoms of speech and press; (b) conflict with commerce clause; and (c) denial of due process of law.
The State charged the Western Union's Bridgeton office with being a disorderly house because it habitually accepted and transmitted and profited from the sending of betting messages in violation of the laws of the State. The company suggests that this concept would not be limited to violation of gambling laws but would necessarily apply as well if the messages accomplished a violation by the sender or recipient of any law which denounces any particular conduct as criminal or civilly unlawful.
Western Union in its brief reasons: "* * * to avoid the criminal liability here sought to be imposed Western Union would have to analyze the meaning of every telegram, determine its legality and the intentions of the parties to the communication. Clearly this would be censorship." It asserts: "Under the present point we are concerned with the invasion of the basic freedoms which this concept would accomplish. * * * We contend that the challenged concept operates to impose a previous restraint upon the exercise of the freedom of speech and press." And further: "In dealing with the issue of censorship with respect to United States mail our Federal courts have expressed the repugnance of censorship to our constitutional provisions and our Federal policy."
We have difficulty in recognizing the applicability of the reasoning advanced and the authorities cited to the pending issues. The record discloses no encroachment upon the doctrine of freedom of speech as no effort was made by the appellants to utter a single word or express a thought on any topic of public interest or concern. Their only activity was to transmit for a fee messages in violation of the state law on gambling and to permit sizeable groups of men and women constantly to congregate upon their premises to
place their wagers on horses and collect their winnings when they were successful. All this despite the warning by the authorities that what they were doing was unlawful and amounted to bookmaking.
We are fully cognizant there must be no trespass upon the pathways established by the Bill of Rights and the Constitution protecting the right of free speech and a free press; but we see no infringement here upon the doctrines enunciated that "there must be room for the unorthodox as well as the orthodox views." U.S. v. Rumely, 345 U.S. 41, 73 S. Ct. 543, 551 (1953).
In City of Louisville v. Wehmhoff, 116 Ky. 812, 76 S.W. 876, 885 (Ct. App. 1903), rehearing denied 79 S.W. 201 (Ct. App. 1904), a similar issue as presented here was encountered. It was contended the defendant had no discretionary power with respect to furnishing service and that it must render indiscriminately an impersonal and impartial service to all the public. The court brusquely disposed of the matter, saying:
"The telegraph company, whether or not it has a conscience, has a duty. It is claimed that this duty is only to serve the public. Not so. Its first duty is to obey the laws, just like other people. The public cannot demand a service which in and of itself involves a violation of the law."
The sovereignty of the state would indeed be a mockery if the rule were otherwise and it lacked the power to compel its citizens to obey its laws.
In Howard Sports Daily v. Weller, 179 Md. 355, 18 A. 2 d 210 (Ct. App. 1941), it was held the telegraph company had the right to refuse service which was connected with illegal operations. Otherwise, the court decided, the telegraph companies would be converted into public vehicles for the consummation of illegal acts prohibited by state laws. Smith v. Western Union Telegraph Co., 84 Ky. 664, 2 S.W. 483 (Ct. App. 1887); Western Union Telegraph Co. v. State, 165 Ind. 492, 76 N.E. 100, 3 L.R.A., N.S., 153 (Sup. Ct. 1905); Bryant v. Western Union Telegraph Co., 17 F. 825 (C.C. Ky. 1883).
The right of telegraph and telephone companies to refuse service where it promotes illegality has been determined many times. Cullen v. N.Y. Tel. Co., 106 App. Div. 250, 94 N.Y.S. 290 (App. Div. 1905); Application of Manfredonio, 183 Misc. 770, 52 N.Y.S. 2 d 392 (Sup. Ct. 1944); Dente v. N.Y. Tel. Co., 55 N.Y.S. 2 d 688 (Sup. Ct. 1944); Tela. News Flash v. District Atty., 197 Misc. 1015, 96 N.Y.S. 2 d 338 (Sup. Ct. 1950); Movietime, Inc., v. N.Y. Tel. Co., 277 App. Div. 1057, 101 N.Y.S. 2 d 71 (App. Div. 1950).
No one is under a legal duty nor can one be compelled by law to commit, foster or aid in the commission of a crime, and so, too, a telegraph company is under no obligation nor can it be forced to accept messages for transmission which would subject it to criminal prosecutions either as principal or as an accessory; nor is one under an obligation to accept messages for transmission which are purely gambling messages, for to do so would be contrary to law, good morals and public policy. Bryant v. Western Union Tel. Co., supra; Smith v. Western Union Tel. Co., supra; City of Louisville v. Wehmhoff, supra; Western Union Tel. Co. v. State, supra. Jones, Telegraph & Telephone Companies (2 d ed. 1916), § 273, p. 383 & § 426, p. 557.
The messages in the case sub judice on their face clearly were gambling messages, horse race bets, and nothing more. They had no news value and contained no public information. There was no attempted disguise or pretext. The import of the transaction was fully within the knowledge of the individuals and the defendants, who consciously and with full awareness not only transmitted the messages but aided and materially assisted in the composition and direction of them so that the customers' wagers could be successfully consummated.
As to the application of the concept of disorderly house violating the Commerce Clause of the United States Constitution because it placed an undue burden on interstate commerce,
the appellants contend all commerce involved here is interstate because all messages passed through Philadelphia pursuant to a system of communication adopted in good faith and without intent to evade the jurisdiction of the State of New Jersey and the operations are so "inextricably intertwined" that regulatory power may not be divided. They argue the State, in the exercise of its police powers, may not so interfere with the interstate commerce as to impose an undue burden upon it.
The argument thus presented is disposed of in McCarter v. Hudson County Water Co., 70 N.J. Eq. 695 (E. & A. 1905), affirmed 209 U.S. 349, 28 S. Ct. 529, 52 L. Ed. 828 (1908). There a statute made it unlawful to abstract water from lakes of the State and transport it through pipes or conduits into any other state. Dealing with the Commerce Clause objection, the court said:
"The state having power to prohibit the diversion of the water from the lakes and streams for transportation beyond the state, the prohibition is a condition imposed upon its diversion, and so the water diverted cannot legitimately enter into interstate commerce."
The same theory applies in the instant case. Inasmuch as horse race bets are illegal and unlawful in New Jersey, they cannot legitimately be classified as interstate commerce. Consequently such commerce is in no way affected or involved.
In Ames v. Kirby, 71 N.J.L. 442 (Sup. Ct. 1904), horse race bet messages and money orders were received at the Atlantic City office of the telegraph company, which transmitted the messages and money orders by telegraph to a corporation in West Virginia. Ames, acting for the telegraph company at its office in Atlantic City, received and transmitted the messages and money orders whereby bets were made on horse races in West Virginia. He, as did the defendants here, contended there was a violation of the Commerce Clause of the Federal Constitution, but the court said:
"In the case before us the so-called commerce has no existence except such as may arise through an infraction of the local law against gambling. Traffic that has such an origin cannot be legitimate interstate commerce. The local prohibition attaches before any commerce commences."
A similar claim was made in City of Louisville v. Wehmhoff, supra [116 Ky. 812, 79 S.W. 202], the court saying:
"The carrier wants us to say that its part in this unlawful partnership to violate the moral and statute laws of a community is protected by the federal constitution. As was said by one of the courts, the Constitution, at most, gives the Congress exclusive jurisdiction to regulate interstate commerce, not interstate crime. * * * But wagering bets on horse races cannot be an article of commerce, no more than could be a lottery business. Both are per se immoral and deleterious to society, and clearly within the power of the states to prohibit. It could never have been contemplated by the framers of the federal Constitution that the hands of the states were to be tied so that they could not protect themselves from such vices if one of the participants chanced to use an interstate vehicle of commerce for carrying on the business."
If any doubt remains, it is dispelled by the testimony of Mr. Lambert, Chief of the Telegraph Division of the Federal Communications Commission, a member of the F.C.C. staff since 1935, who said there were no regulations of the F.C.C. which would require Western Union to accept or transmit wager messages or wager money orders in the State of New Jersey.
It is also contended that the standard employed by the trial court was so vague and uninformative as to be a denial of due process of law, in violation of Article I, paragraph 20, of the State Constitution and of the 14th Amendment of the Federal Constitution. It is urged there was no practical way by which Western Union or its employees could, prior to the acceptance of a message and transmission, measure the conduct of its patrons against a standard which is at once so "sweeping and so nebulous," and as the company is subject to both criminal and civil liability for refusing
to take a message it must carry, it "could not choose to do nothing. It had to act." Hence, the company, it says, was placed in a dilemma by the application of this concept of a disorderly house, and the "imposition of criminal liability in these circumstances is arbitrary and beyond the police power of the State."
Service without discrimination does not require a telegraph company to abet criminals or to aid those who continuously break our state laws. No one is compelled to aid an unlawful undertaking, and Western Union was not forced to send horse race bets over its telegraphic lines. A public utility has not only a right but a duty to refuse service for criminal purposes. Andrews v. Chesapeake & P.T. Co., 83 F. Supp. 966 (U.S.D.C. 1949); Hamilton v. Western Union, 34 F. Supp. 928 (U.S.D.C. 1940).
The employees of the company here were told by the bettors what they wanted to do, to wit, bet on horse races, and the employees suggested and instructed them how to accomplish this purpose, how to word the messages, and even where to direct them. They had full knowledge of the entire transactions and their import.
The company had specifically been warned of the illegality of the activities indulged in, but despite the admonition emanating from constituted authority, the practices were continued without abatement. The Due Process Clause was not intended to give immunity or protection under these circumstances.
"* * * all other offenses of an indictable nature at common law, and not expressly provided for by statute, shall be misdemeanors."
The appellants contend this clause cannot be invoked because the common-law crime here relied ...