Kovacs v. Cooper., 27.

• Citation: 52 A.2d 806,135 N.J.L. 584
• Decision Date: 24 April 1947
• Docket Number: No. 27.,27.
• Parties: KOVACS v. COOPER.
• Court: United States State Supreme Court (New Jersey)

135 N.J.L. 584

52 A.2d 806

KOVACS

v.COOPER.

No. 27.

Court of Errors and Appeals of New Jersey.

April 24, 1947.

Appeal from Supreme Court.

Charles Kovacs was convicted by Albert Cooper, Jr., Judge of First District Police Court of Trenton, of violation of an ordinance to prevent the making of unnecessary noise and the conviction was affirmed by the Supreme Court, 135 N.J.L. 64, 50 A.2d 451, and he appeals.

Affirmed by an evenly-divided court.

The judges being equally divided on the question whether the judgment should be reversed, the judgment is affirmed solely because of such division, which renders any opinion by the court impossible.

George Pellettieri, of Trenton, for prosecutor-appellant.

Louis Josephson and John A. Brieger, both of Trenton, for defendant-respondent.

PER CURIAM.

The judgment herein is affirmed by an equally divided court.

The following opinion sets forth the writer's reasons for a reversal of the Supreme Court judgment.

EASTWOOD, Justice.

Prosecutor-appellant was convicted in the Police Court of the City of Trenton for a violation of the fourth section of an Ordinance of the City of Trenton, entitled ‘An Ordinance to Prevent the Making of Unnecessary Noise.’ On certiorari, the judgment of conviction was affirmed.

The factual minutiae reveal that prosecutor-appellant, on August 22, 1946, placed what is commonly known as an amplifier on a sound truck driven by another on South Stockton Street in the City of Trenton, and employed the device both for playing music and speaking through the sound amplifier. Although the record is barren as to the purpose or subject matter of prosecutor-appellant's discourse, it is stated in the brief filed on his behalf that his comments were made in relation to a labor dispute then in progress in Trenton. On August 23, 1946, prosecutor was tried and convicted by defendant-respondent, sitting as Judge of the Trenton Police Court, who imposed a fine of $50 upon prosecutor-appellant under the provisions of Section 6 of the Ordinance in question.

The question presented for judicial determination is the constitutionality of the Ordinance. It is claimed by prosecutorappellant that the challenged Ordinance deprives him of various unalienable rights, among which are freedom of speech and freedom to communicate information and opinions to others, and freedom of assembly guaranteed to him by Article 1, Paragraph 5, and Article 1, Paragraph 18, of the New Jersey Constitution, N.J.S.A. and Section 1 of the Fourteenth Amendment of the United States Constitution; also, that the provisions of the Ordinance are obscure, vague and indefinite in that they are impossible of reasonable interpretation, and, therefore, in violation of Article 1, Section 1, of the New Jersey Constitution, and Section 1 of the Fourteenth Amendment of the United States Constitution. In defense of the Ordinance it is maintained that the municipality had full and ample authority to enact the challenged legislation in its lawful exercise of its inherent Police Power; and further, that the provisions of the Ordinance are not obscure, vague and indefinite; and that, therefore, the Ordinance in question is constitutional and the conviction of prosecutor-appellant thereunder was proper.

That portion of the Ordinance under attack provides as follows: ‘4. That it shall be unlawful for any person, firm or corporation, either as principal, agent or employee, to play, use or operate for advertising purposes, or for any other purpose whatsoever, on or upon the public streets, alleys or thoroughfares in the City of Trenton, any device known as a sound truck, loud speaker or sound amplifier, or radio or phonograph with a loud speaker or sound amplifier, or any other instrument known as a calliope or any instrument of any kind or character which emits therefrom loud and raucous noises and is attached to and upon any vehicle operated or standing upon said streets or public places aforementioned.’

That freedom of speech and the right freely to communicate one's information and opinions to others, and the right freely to assemble, are guaranteed to the individual under the Constitutions of this State and of the United States, are principles so well established as to admit of no dispute. Likewise the authority of a municipality to employ its inherent police powers to the end that good government, order and the protection of persons and property and for the preservation of public health, safety and welfare of its inhabitants, in exercise of such powers is a principle that is not open to challenge. It is thus apparent that individual privileges under the constitutional guarantees and the police powers of the municipality for the protection of the public welfare, are relative rights, not to be arbitrarily asserted nor unqualifiedly insisted upon. Both must be so construed so as to effect a nicety of balance to the end that the rights of the individual and those of the public at large may be brought into harmonious rapprochment. The right or privilege of free speech or publication, guaranteed by the constitutions of the United States and of the several states, has its limitations. The right is not an absolute one and although limitations upon such rights may not be made except in exceptional cases, the constitutional prohibition against freedom of speech was not intended to give immunity for every use or abuse of language. Near v. State of Minnesota, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357; Gitlow v. People of State of New York, 268 U.S. 652, 45 S.Ct. 625, 69 L.Ed. 1138. The right of freedom of speech is guaranteed by the provision of our constitutions both state and federal, and it has ever been the effort of the government and the courts to uphold and maintain it under proper and reasonable restriction. State v. Klapprott et al., 127 N.J.L. 395, 22 A.2d 877. The foregoing authorities are representative of a host of decisions affirming those unalienable rights constitutionally guaranteed to the individual. On the other hand, it has been held time and time again, by authorities of equal weight and importance, that municipalities may enact regulations in the interest of the public safety, health, welfare and convenience so long as these regulations do not abridge the individual liberties secured by the State and Federal Constitutions. Schneider v. State of New Jersey, 308 U.S. 147, 60 S.Ct. 146, 84 L.Ed. 155. Hague v. Committee for Industrial Organizations, 307 U.S. 496, 59 S.Ct. 954, 83 L.Ed. 1423; Cantwell v. State of Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213, 128 A.L.R. 1352.

The right of a municipality to enact ordinances in furtherance of its inherent police powers finds statutory expression in the provisions of R.S. 40:48-2, N.J.S.A., which provides as follows: ‘Any municipality may make, amend, repeal and enforce such other ordinances, regulations, rules and by-laws not contrary to the laws of this state or of the United States, as it may deem necessary and proper for the good government, order and protection of persons and property, and for the preservation of the public health, safety and welfare of the municipality and its inhabitants, and as may be necessary to carry into effect the powers and duties conferred and imposed by this subtitle, or by any law.’

Specifically, under the general heading of ordinances, the governing body of every municipality may make, amend, repeal and enforce ordinances to:

‘Auctions and noises. 8. Regulate the ringing of bells and the crying of goods and other commodities for sale at auction or otherwise, and to prevent disturbing noises.’ R.S. 40:48-1, N.J.S.A.

Addressing out attention to the language of the challenged Ordinance, it is clear that its effect is to outlaw and...