Matthews, Crane and Antell. The opinion of the court was delivered by Matthews, P.J.A.D.
Defendant was convicted in the Municipal Court of Ocean Grove of driving under the influence of alcohol (N.J.S.A. 39:4-50(a)); speeding (N.J.S.A. 39:4-98), and disregarding a traffic signal (N.J.S.A. 39:4-81). After a trial de novo on the record below, the Monmouth County Court sustained the conviction for driving under the influence, but reversed the speeding and disregard of a traffic signal convictions on the ground that they merged into the drunk driving offense. However, defendant at the trial de novo , raised for the first time, the issue of lack of jurisdiction of the municipal court because the statute, N.J.S.A. 40:97-1 et seq. , granting powers to the Ocean Grove Camp Meeting Association (Ocean Grove) to establish a municipal court is unconstitutional. Thereafter, the County Court judge sustained defendant's argument and vacated his conviction finding that "[t]he Municipal Court of Ocean Grove, not being lawfully established, is without jurisdiction." State v. Celmer , 143 N.J. Super. 371, 377 (Cty. Ct. 1976).
The State argues that we should ignore the constitutional issue because the Ocean Grove Municipal Court had jurisdiction to decide these offenses on the theory of de facto jurisdiction and because no objection to the Ocean Grove Municipal Court's authority was raised in that court. The argument is based principally on the decision of the former Court of Errors and Appeals in Lang v. Bayonne , 74 N.J.L. 455 (1907). Lang involved the efforts of a police officer to gain reinstatement on the Bayonne City police force on the theory that the act creating the city board of commissioners which
had terminated his employment had subsequently been declared unconstitutional. Plaintiff's discharge from the police force was upheld on the theory that whenever a statute creates an office and provides for an officer to carry out its functions, the acts of such officer must have the force of law notwithstanding a constitutional defect in the enabling legislation:
While the doctrine enunciated in Lang and Pillo may well be applicable to those acts performed by judges of the Municipal Court of Ocean Grove prior to the challenge to its jurisdiction in this case, we do not think that it has applicability here since the jurisdictional issue has been directly raised in these proceedings which involve the charges against defendant. Nor do we agree with the State's argument that the failure of defendant to raise the defense of lack of jurisdiction or the unconstitutionality of the statute in the municipal court amounted to a waiver of those defenses. The trial judge concluded that there was no waiver by virtue of R. 3:10-2 to 4. While we disagree with his reasoning in this respect, we agree that there has been no waiver. It has always been the better practice for an inferior court to assume that an act is constitutional until it has been passed upon by an appellate court. The municipal court is an inferior court and it is not ordinarily within its purview to deal with debatable questions relating to the constitutionality of statutes, especially those of long standing. See Legg v. Passaic Cty. , 122 N.J.L. 100, 104
(Sup. Ct. 1939), aff'd o.b., 123 N.J.L. 263 (1939). We think that the constitutional challenge to jurisdiction was properly raised by defendant in the County Court at the trial de novo.
We find the issue in this case to be controlled by the opinion of our Supreme Court in Schaad v. Ocean Grove Camp Meeting Ass'n , 72 N.J. 237 (1977), decided after the County Court's decision herein. In Schaad the court held that the statutes giving municipal police powers to camp meeting associations did not violate the Establishment Clauses of the United States and New Jersey Constitutions because a primary or principal effect of those statutes was not to advance religion but rather to create a mechanism for basic local regulation of the camp meeting community:
The issue resolved in Schaad involved the validity in establishment terms of the structure of the local government of Ocean Grove, and not a question of the validity, in establishment or other terms, of any particular regulation adopted by the governing body of Ocean Grove, such as the Sunday Closing Law which gave rise to the controversy.
Schaad would be dispositive of this case were it not for a reservation expressed by the court in its opinion with respect to it:
Our research into the matter leads us to the conclusion that there is no real historical difference between the grant of authority by the Legislature in L. 1953, c. 37, § 274, to establish a municipal court in Ocean Grove and the original ...