Goldmann, Freund and Conford. The opinion of the court was delivered by Conford, J.A.D.
Defendant was convicted before the municipal magistrate of the Borough of Dumont, and again, on appeal by hearing de novo in the Bergen County Court, of violation of a provision of a municipal ordinance to the effect that:
"Whatever loud and unnecessary noise which disturbs the public peace, * * * between the hours of Eleven o'clock P.M. and Seven o'clock A.M. is hereby declared a nuisance and is prohibited."
By stipulation the County Court heard the matter on the transcript of the hearing before the magistrate. There was testimony by a number of witnesses that a small generator plant and the Diesel engines of locomotives stationed on tracks in the defendant's yards near Bedford Road in the Fleetwood section of the borough had, during the specified hours on certain dates, emitted sounds and noises variously described as "hum of loud motor," "constant whine and hum, * * * very hard on the ear drums," "very loud noise," "similar to a turret lathe, loud enough to disturb sleep in the house," "this noise could be very annoying and aggravating upon persons resting and trying to get to sleep," "pulsating sort of noise like a pump * * * enough to keep one from losing sleep" (sic). Most of the witnesses were neighborhood residents.
One of the witnesses testified that at one time the locomotives were stationed some distance north of the point at which they were currently causing annoyance but were moved to the latter location in 1946, producing complaints of unnecessary noise. In response to such complaints, it was stated, the railroad "at various times" dispatched the trains "back to their original location several hundred yards north of their present location." This witness expressed the opinion that the existing noise was "unnecessary" because the railroad had "sufficient trackage" in the northerly area of the yard to keep the locomotives where they would not disturb the residents of the Fleetwood section, as had been done in the past. There was also some suggestion in the proofs of the State
that the generator had been installed to lessen locomotive engine noise but had failed appreciably to accomplish the object and had, indeed, itself produced offensive and disturbing noises. The defendant produced no proofs but moved for judgment of acquittal on the ground of insufficiency of the proofs to establish that such noise as existed was unnecessary. Before the County Court, a motion for acquittal was based upon the unreasonableness of the ordinance. Both motions were denied.
On the present appeal defendant confines its argument to two points: (a) the ordinance offends due process requirements in that the specification of the prohibited conduct, "loud and unnecessary noise," is too vague and indefinite to apprise the defendant of the standard it is called upon to observe; (b) failure of the State to establish that the noise is "unnecessary." We address ourselves to these contentions in the order stated.
We are here dealing with a penal enactment and a prosecution for its violation is "essentially criminal in nature." State v. Yaccarino , 3 N.J. 291, 295 (1949); cf. Board of Health, Weehawken Township v. New York Central R. Co. , 10 N.J. 294 (1952). Defendant therefore properly asks the court to appraise the language of this ordinance for sufficiency in respect to definiteness. There is little difficulty in recognizing the general principle of constitutional and criminal law asserted. "A statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law." Connally v. General Construction Co. , 269 U.S. 385, 391, 46 S. Ct. 126, 127, 70 L. Ed. 322 (1926); Lanzetta v. State of New Jersey , 306 U.S. 451, 453, 59 S. Ct. 618, 83 L. Ed. 888 (1939). The test is "whether the text of the ordinance adequately informs persons of the thing they are forbidden by the ordinance to do." State v. C.B.S. Enterprises, Inc. , 24 N.J. Super. 512, 515 (App. Div. 1953).
The application of the rule, however, is frequently attended by differing judicial concepts as to the capacity of given legislative language to communicate to the ordinary mind with clarity a concept, injunction or command. Contrast the opposing reactions to the sufficiency of the words, "gang" and "gangster," of the New Jersey courts and of the United States Supreme Court in State v. Gaynor , 119 N.J.L. 582, 586 (E. & A. 1938) and Lanzetta v. State of New Jersey, supra; or, closer to one of the problems here presented, to the phrase, "'to employ * * * any person or persons in excess of the number of employees needed by such licensee to perform actual services,'" of the majority and minority of the court in United States v. Petrillo , 332 U.S. 1, 7, 16, 67 S. Ct. 1538, 1546, 91 L. Ed. 1877 (1947).
Defendant indicts the term "loud" as "very relative, depending not only upon time and place but upon circumstances as well." The suggestion is that a concept so variable is defective. The elasticity of the word "unnecessary" is similarly made a point of attack. For purposes of the present inquiry, however, the import of the ordinance should be examined in the context of the entirety of the language, "loud and unnecessary noise which disturbs the public peace." The phrase merits defense in its collective connotation if the latter contributes to its intelligibility. Noscitur a sociis. Cf. Ford Motor Co. v. New Jersey Department of Labor and Industry , 5 N.J. 494, 502 (1950). The concept of disturbance of the peace is a familiar one in the regulatory field, 6 McQuillin, Municipal Corporations (3 rd ed. 1949), § 24.102, pp. 635, 636; R.S. 40:48-1 (6); and generally see Black's Law Dictionary (4 th ed. 1951), p. 563; 11 C.J.S., Breach of the Peace , § 4, p. 819. It thus aids in settlement of meaning. In adjudging the sufficiency of penal language in the area of preservation of the peace, it is necessary to give consideration to the ...