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Department of Conservation and Economic Development v. Scipio

Decided: June 29, 1965.


Kilkenny, Goldmann and Lewis. The opinion of the court was delivered by Kilkenny, J.A.D.


Defendant was convicted in the Fairfield Municipal Court of violating N.J.S.A. 23:4-13, possession of an illegal missile, and N.J.S.A. 23:10-5, resisting arrest. On defendant's appeal to the Essex County Court, there was a plenary trial de novo. The conviction for resisting arrest was affirmed, but the conviction for possession of an illegal missile was reversed. The Division of Fish and Game in the Department of Conservation and Economic Development appeals from the County Court's judgment finding him not guilty of possession of an illegal missile. Defendant cross-appeals his conviction on the charge of resisting arrest.


Defendant, by motion before oral argument, attacked preliminarily the right of the state agency to appeal the judgment of the County Court finding him not guilty of a violation of N.J.S.A. 23:4-13. We denied the motion, but without prejudice to its being renewed at oral argument when we would have before us the complete record in the case. Defendant now renews the motion, contending that a violation of the Fish and Game Law was a criminal or quasi -criminal offense, and acquittal of such a charge after a trial de novo in the County Court barred an appeal by the State.

The motion to dismiss the State's appeal is denied. Enforcement of this provision of the Fish and Game Law, N.J.S.A. 23:4-13, which subjects violators to the imposition of a "penalty of one hundred dollars ($100.00) for each offense," is not a criminal or quasi -criminal proceeding. An action under the Penalty Enforcement Act, N.J.S. 2A:58-1 et seq., to subject a person to a statutory penalty for violation of the Fish and Game Code is civil in nature. All moneys

recovered for violations of this law are "paid to the Division of Fish and Game for its use and purposes." N.J.S.A. 23:10-19. The law draws a distinction between a statute which subjects a violator to the payment of a "fine" or imprisonment, or both, which is deemed to be criminal or quasi -criminal in nature, and one which requires of a violator only the payment of a "penalty." The latter is regarded as one providing a civil remedy. See Sawran v. Lennon, 19 N.J. 606, 611-613 (1955), in which the above distinction is fully developed and proceedings before the municipal court magistrate to recover "the penalties prescribed for violations of the Fish and Game Law" were described as a "civil" action.

Defendant relies upon City of Newark v. Pulverman, 12 N.J. 105 (1953), where an acquittal by the County Court after a trial de novo on appeal from the Newark Municipal Court was held to preclude a further appeal by the city. That case is inapposite here because it involved an alleged violation of the municipal zoning ordinance punishable by imprisonment, fine, or both -- a proceeding deemed quasi -criminal. Ibid., at pp. 113-114. We held to the same effect and for the same reason in State v. Fiore, 69 N.J. Super. 122 (App. Div. 1961), in which the Union County Court had found defendant not guilty of violating a municipal ordinance of the Township of Union, regulating itinerant food handling operations. See, too, City of Englewood v. Brewster, 77 N.J. Super. 248 (App. Div. 1962), also involving a prosecution for violation of a municipal ordinance, where the punishment could be a fine, imprisonment, or both.

The rule in Pulverman would also apply where the charge alleged a violation of the Disorderly Persons Act, N.J.S. 2A:170-1 et seq., or the commission of an indictable offense. State v. Labato, 7 N.J. 137 (1951); State v. Hart, 90 N.J.L. 261 (E. & A. 1917); State v. Smith, 21 N.J. 326 (1956). The rationale behind the rule is the guarantee against "double jeopardy." New Jersey Constitution (1947), Article I, paragraph 11. But the protection against double jeopardy is limited to criminal and quasi -criminal proceedings.

Atkinson v. Parsekian, 37 N.J. 143, 154 (1962); State v. Hatterer, 75 N.J. Super. 400, 403 (App. Div. 1962). It is inapplicable to civil actions, as here, for the recovery of statutory penalties under the Fish and Game Law.

In support of his contention that violations of the Fish and Game Law are quasi -criminal in character, defendant urges upon us that this statute authorizes arrest of violators, N.J.S.A. 23:10-5; immediate search of persons and seizure of property, and also issuance of search warrants for "probable cause," N.J.S.A. 23:10-20. It further provides for jurisdiction in the municipal courts "to try and punish any person violating any provision of this title," N.J.S.A. 23:10-2; trial of offenses in a summary manner, N.J.S.A. 23:10-2; imprisonment of persons found guilty who fail to pay the penalty imposed, R.S. 23:10-14, and the placing of convicted persons on probation, N.J.S.A. 23:10-15.

We recognize that these procedures are normal concomitants of criminal and quasi -criminal proceedings. But the extension of their use in aid of the enforcement of the Fish and Game Law does not thereby convert an action for the recovery of penalties thereunder from a civil proceeding, as recognized by our Supreme Court in Sawran v. Lennon, supra, to one of a criminal nature.

The arrest of persons in some instances at the inception of a civil action, and the use of a body execution as a means of enforcing collection of a money judgment through the medium of the writs of ne exeat, capias ad respondendum and capias ad satisfaciendum, are an established part of our civil practice. N.J.S. 2A:15-41 and 42; N.J.S. 2A:17-78 and 79; R.R. 4:66. Therefore, the mere fact of arrest is not inconsistent with the pursuit of a civil remedy. As we also said in Department of Labor and Industry v. Rosen, 44 N.J. Super. 42 (App. Div. 1957):

"The fact that a penalty statute provides for enforcement by body execution in the event of failure to pay the penalty is not conclusive of the nature of the proceeding as being either criminal or civil. Enforcement ...

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