On appeal from the Bergen County Court, Law Division.
For reversal -- Justices Heher, Oliphant, Burling, Jacobs and Brennan. For affirmance -- Chief Justice Vanderbilt, and Justice Wachenfeld. The opinion of the court was delivered by Oliphant, J. Vanderbilt, C.J. (dissenting). Mr. Justice Wachenfeld has authorized me to say that he joins in this opinion.
[20 NJ Page 469] This is an appeal from a judgment of the Bergen County Court affirming the conviction of the defendant-appellant for a violation of N.J.S. 2 A:171-1, the Sunday observance law of New Jersey.
The complaint charged a violation of this statute in that on February 13, 1955 the appellant washed an automobile of one Albert Durkovic. The defendant operated an automobile service business in Fair Lawn, New Jersey, providing for the complete servicing of automobiles, including gas, oil, greasing, repairs and automatic washing of cars. The case was tried on a stipulation of facts and the borough officials made no charge of violation with respect to the operation on Sunday of defendant's gasoline and service station, apparently on the theory it constitutes a work of necessity. See N.J.S. 2 A:171-1.
The appellant was convicted originally in the municipal court and on appeal to the Bergen County Court after a trial de novo he was again found guilty and a fine of $20 was imposed under N.J.S. 2 A:169-4, which is the penalty section applying to disorderly persons and which the County Court held applicable to this situation.
The appellant appealed from this conviction and we certified the cause here on our own motion. R.R. 1:10-1(a).
On this appeal the appellant raised several constitutional questions and this court required that notice be given to the Attorney-General pursuant to R.R. 4:37-2. The Attorney-General appeared and argued the appeal before us through Assistant Attorney-General Fusco. The brief on behalf of the State was drafted by Mr. Calissi, Prosecutor of the Pleas of Bergen County, and Special Assistant Prosecutor Valente. The Assistant Attorney-General at the argument frankly stated, and the prosecutor acquiesced therein, that he could not conscientiously support the brief filed by the State and argue for an affirmance and confessed error in the conviction below of the defendant due to the lack of a penalty contained in the statute, N.J.S. 2 A:171-1, upon which the complaint was based. However, a confession of error relating to the jurisdiction of the subject matter is not binding on this court.
We find a decision with respect to the constitutional questions unnecessary for the disposition of the cause and we shall therefore not determine such questions or comment
with respect thereto. Such is the regular practice of this court. Michaelson v. Wall Tp., 92 N.J.L. 72 (Sup. Ct. 1918); Grobart v. Grobart, 5 N.J. 161, 165 (1950).
The direct source of our law for the observance of Sabbath Days goes back as far as 1704, Allinson's Acts, 3. See also State v. Maier, 13 N.J. 235, 261 (1953). The statutory section which was the immediate predecessor of N.J.S. 2 A:171-1 was R.S. 2:207-1 which read as follows:
"No traveling, worldly employment or business, ordinary or servile labor or work either upon land or water, except works of necessity and charity, and no shooting, fishing, not including fishing with a seine or net, which is hereinafter provided for, sporting, hunting, gunning, racing, frequenting of tippling houses, or any interludes or plays, dancing, singing, fiddling or other music for the sake of merriment, playing at football, fives, ninepins, bowls, long bullets or quoits, nor any other kind of playing, sports, pastimes or diversions shall be done, performed, used or practiced by any person within this state on the Christian Sabbath, or first day of the week, commonly called and hereinafter designated as Sunday.
Whoever, being of the age of fourteen years or upwards, offends in the premises, shall, for every such offense, forfeit and pay, to the use of the poor of the township in which such offense shall be committed, the sum of one dollar."
It should be noted that that section contained a penalty. In the Revision of 1951, N.J.S. 2 A:171-1 was enacted to provide as follows:
"No worldly employment or business, except works of necessity and charity, shall be performed or practiced by any person within this state on the Christian Sabbath, or first day of the week, commonly called and hereinafter designated as Sunday."
Neither this section nor the ensuing sections, N.J.S. 2 A:171-2 to 5, contain any statutory penalty.
The appellant's position is that his conviction is void because this section does not provide any penalty. The reason for the lack of the penalty clause is not for this court to determine. We are referred, however, to a note by the chairman of the Advisory Committee on the Revision of Statutes, found in the foreword to Title 2 A:
"The general object of the Revision of the Sunday laws (N.J.S. 2 A:171-1 to 2 A:171-12) was not to make broad changes in substance, but rather to eliminate obsolete provisions. It was intended to leave municipalities with the power, they theretofore had, to control and regulate Sunday activity."
But L. 1951, First Special Session, c. 344, sec. 8, provides:
"8. In the construction of the said Title 2A, or any part thereof, no outline or analysis of the contents of said title or of any subtitle, chapter, article or other part thereof, no cross-reference or cross-reference note and no headnote or source note to any section of the said Title 2A shall be deemed to be a part of the said title."
Further, this statement may be a little bit broader in its implication than the existing law interpreting the prior statutes as to the powers of municipalities. Some cases hold that municipalities had the right under the Home Rule Act to supplement the provisions of the Sunday law, Sherman v. City of Paterson, 82 N.J.L. 345 (Sup. Ct. 1912); Schachter v. Hauenstein, 92 N.J.L. 104 (Sup. Ct. 1918); but in Singer v. First Criminal Court, etc., 79 N.J.L. 386 (Sup. Ct. 1910), the court held a municipal corporation could not confer a right to violate the provisions of the Sunday law. See also City of Elizabeth v. Windsor-Fifth Ave., 31 N.J. Super. 187, 190 (App. Div. 1954).
Penal statutes are to be strictly construed, and while it may be said that it is to be presumed that the Legislature would not denounce certain acts without providing a penalty, yet penal consequences cannot rest upon a mere presumption. Such legislative purpose must be expressed, and in clear and direct language.
We find no such language indicating an intention by the Legislature that its purpose was to substantially increase the penalty for a violation of the act or vesting this power in the municipalities. We cannot supply it by implication.
A law generally consists of three parts: (1) the scope and intent of the law; (2) the content of the law; (3) a sanction or penalty, and this is peculiarly true of a criminal or quasi -criminal statute. A criminal statute without a penalty
clause is of no force and effect. The penalty is an essential to such a statute, and if none is specified a court has no warrant to supply the penalty if the Legislature has failed to clearly manifest such intention to impose one.
The eminent author, 1 Bishop, Criminal Law (9 th ed.), sec. 6, states "Indeed, 'law,' without punishment for its violation, is in ...