[192 NJSuper Page 419] This case comes before the court on appeal from the Municipal Court of the City of Englewood. Defendant, Dino Duva, pled guilty to driving while on the revoked list in contravention of
N.J.S.A. 39:3-40 on June 16, 1983. This was defendant's second offense. The applicable portion of the Statute provides:
"No person to whom a driver's license has been refused or whose driver's license or reciprocity privilege has been suspended or revoked, or who has been prohibited from obtaining a driver's license, shall personally operate a motor vehicle during the period of refusal, suspension, revocation or prohibition. . . . A person violating this section shall be subject to the following penalties: . . . (b) Upon conviction of a second offense, a fine of $750.00 and imprisonment in the county jail for not more than five days; . . ." (emphasis supplied)
The court sentenced defendant to two days in the Bergen County Jail and a fine of $750.00.
The precise question presented by this appeal is whether the language of N.J.S.A. 39:3-40(b) makes the imposition of a term of imprisonment in the county jail mandatory upon conviction for a second offense. The Municipal Court so held. Defendant contends that such ruling was error and seeks a determination that incarceration is discretionary with the judge.
The general rules of construction are as provided in N.J.S.A. 1:1-1:
"In the construction of the laws and statutes of this state, both civil and criminal, words and phrases shall be read and construed within their context, and shall, unless inconsistent with the manifest intent of the legislature or unless another or different meaning is expressly indicated, be given their generally accepted meaning, according to the approved usage of the language. . ."
N.J.S.A. 39:3-40 reads, inter alia, that one who violates its proscription ". . . shall be subject to . . ." (emphasis supplied) It is a well-established canon of construction that the language of the statute is the best indication of legislative intent. Meltzer v. Zoller, 520 F. Supp. 847, 835 (D.C.N.J.1981). The meaning of the word "shall" in legislation has been discussed many times by many courts. There is a presumption that the word "shall" appearing in a statute is used in an imperative and not a directory sense. This presumption can only be overthrown by something in the character or context of the legislation which will require a different meaning. Swiney v. Dept. of Treasury, Div. of Pension, 84 N.J. Super. 186 (App.Div.1964); Taureck v. City of Jersey City, 149 N.J. Super. 503 (Law Div.1977). There is nothing in the character of this legislation, nor in the context
within which the words are used, which can lead to any conclusion other than that the word "shall" is used by the legislature in its mandatory sense.
Defendant here urges that a comparison between the prior language of N.J.S.A. 39:3-40 and its present language indicates a legislative intent to make incarceration discretionary with the court.
Defendant contends that by adding the words "be subject to" immediately after the word "shall" displays a legislative intent to divest the word "shall" of its mandatory character. Defendant, thus, interprets the statute as merely stating the punishment which is available to be imposed. This would make the phrase "shall be subject to imprisonment" the functional equivalent of "may be imprisoned for." It is the court's function to construe statutes as written. Schmoll v. Creecy, 104 N.J. Super. 126 (A.D.1969). The legislature is deemed to have intended what it wrote and the Court may not construe a contrary concept. Harlan v. Fidelity & Cas. Co., 139 N.J. Super. 226 (Law Div.1976). These concepts must guide the examination of the phrase "shall ...