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State v. Smith

Decided: October 2, 1974.

STATE OF NEW JERSEY, PLAINTIFF,
v.
DENNIS S. SMITH, DEFENDANT



Greenberg, J.c.c., Temporarily Assigned.

Greenberg

Defendant moves to dismiss the count of an indictment charging him with a violation of N.J.S.A. 2A:127-4 on the ground that the statute is unconstitutional on its face. The statute provides as follows:

Any person who installs or has in any automobile, a short-wave radio receiver operative on frequencies assigned by the federal communications

commission for fire, police, municipal or other governmental uses, is guilty of a misdemeanor, unless a permit therefor has first been obtained from the chief of the county police, or from the chief of the police of the municipality, wherein such person resides.

This section does not apply to any fire, police or other governmental official of the state or of any county or municipality thereof.

The contentions of defendant must be addressed with certain well-established principles in mind. A court should not reach and determine a constitutional issue unless absolutely imperative in the disposition of the litigation. Donadio v. Cunningham, 58 N.J. 309, 325 (1971). In view of the nature of defendant's motion there is no alternative to a determination of the constitutional issue.

A statute is entitled to a presumption of constitutionality, Male v. Ernest Renda Contracting Co., 64 N.J. 199 (1974), and this is especially so when the statute has long been applied without any question being raised as to its constitutionality. Gibraltar Factors Corp. v. Slapo, 23 N.J. 459, 463 (1957). While the absence of any reported decisions construing the statute in question since its adoption in 1933 may indicate that no significant legal determinations have been made with respect to it, there appears to be no reason to assume that prosecutors have not enforced the law in appropriate situations. In view of the presumption of constitutionality, it follows that a statute will not be declared inoperative and unenforceable unless it is plainly in contravention of a constitutional mandate or prohibition. State v. Profaci, 56 N.J. 346, 349 (1970).

When the Legislature's exercise of the police power is brought into question, if the end is one to which the legislative power may properly be addressed, it is enough if it can be seen that in any degree, or under any reasonably conceived circumstances, there is an actual relation between the means used and the end sought by the statute. Jamouneau v. Harner, 16 N.J. 500, 518 (1954). While no statement of the ends of the Legislature appears in the statute, it seems reasonable to assume that there may have been a determination

by the Legislature that if persons in automobiles could without restriction listen to fire, police or other governmental communications, their high degree of mobility coupled with their possible desire to proceed to locations referred to in such communications, for reasons of curiosity or otherwise, might well result in interference with essential governmental activities. Likewise, the Legislature may have determined that if persons engaged in illegal activities were able to receive such information in their automobiles, they would become aware of their detection and their escape would be facilitated. Bearing in mind that the constitutionality of a statute does not turn on whether it is a wise one in a judge's view, Brown v. Heymann, 62 N.J. 1, 10 (1972), then one can conceive an actual relation between the means used and the end sought by the statute. Banning such receivers in automobiles may avoid interference with police, fire and other governmental agencies in carrying out their functions; it may make it more difficult for those engaged in illegal activities to become aware of their detection.

Defendant contends that the statute denies him equal protection of the laws, in violation of the Fourteenth Amendment to the Constitution of the United States, in that limitation of the operation of the statute to automobiles is unreasonable and arbitrary. Further, he alleges that the exception which constitutes the second paragraph of the statute is so broad as to violate equal protection. As to the former contention, there is no question but that the Legislature could have broadened the scope of the statute by including within its operation motor vehicles other than simply automobiles. However, the constitutionality of a legislative classification is presumed and one who attacks the classification must carry a heavy burden of showing its arbitrariness; a statutory discrimination will not be set aside if any state of facts reasonably may be conceived ...


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