Bd. Of Com'rs Of City Of Newark v. Grodecki.

• Decision Date: 21 July 1943
• Citation: 33 A.2d 115
• Parties: BOARD OF COM'RS OF CITY OF NEWARK v. GRODECKI.
• Court: New Jersey Court of Common Pleas

33 A.2d 115

BOARD OF COM'RS OF CITY OF NEWARK

v.GRODECKI.

Court of Common Pleas of New Jersey, Essex County.

July 21, 1943.

Proceeding by the Board of Commissioners of the City of Newark against Joseph W. Grodecki for violation of a city ordinance prohibiting gaming and possessing writings or printings indicating an interest, share, bet, or pledge in any game of chance. From a judgment of conviction, defendant appeals.

Affirmed.

Raymond Schroeder, Corp. Counsel, of Newark (Louis A. Fast, of Newark, of counsel), for complainant-appellee.

Charles W. Chadwick, of Newark, for defendant-appellant.

HARTSHORNE, Judge.

Defendant appeals from his conviction in the First Criminal Court of the City of Newark for the violation of a city ordinance, known as Section 634 of the Revised Ordinances of the City of Newark (Revision of 1913) as amended. This ordinance, as amended, was adopted in 1942, and not only prohibits gaming of all sorts but provides that ‘no person shall * * * have in possession any ticket, slip, or other writing or printing * * * indicating an interest, share, bet or pledge in any pool, lottery, racing, contest or other game of chance * * *.’ The evidence shows that defendant had in his possession writings indicating bets on prize fights and basketball games with the names of the bettors, the amount bet, indicating those who did or did not pay, those who won and those who lost. There were also sheets of ‘Eddie's Basketball Service,’ indicating the games for the week, on which were marked in pencil the odds on the game, the names of the bettors, together with similar papers indicating odds and bettors' names on hockey and football games. It was also testified that defendant requested the return of a slip containing names of bettors, as he would not know who to pay off and who not to pay.

The defendant grounds his appeal on the claims, (1) that the ordinance under which he is convicted is invalid; (2) that the above evidence does not show him to have violated such ordinance.

Appellant claims the ordinance to be invalid, not because of any defect or lack of completeness in its substance, but (1) because it was adopted, not as an original ordinance, but as an amendment to the original ordinance of 1913, Section 634, and (2) because it does not expressly state the date it is to be effective.

This original ordinance appellant claims to be invalid since its penal clause fixes a mandatory penalty of ‘ten dollars for each offense.’ This, of course, violates the provisions of the Home Rule Act covering all municipalities (P.L.1917, p. 347, N.J.S.A. 40:49-5), which directs these ordinances to provide penalties in the discretion of the magistrate, for detention ‘not exceeding ninety days, or by a fine not exceeding two hundred dollars, or both.’ Pfister Chemical Co. v. Romano, 188 A. 727, 15 N.J.Misc. 71; Fields v. Duffy, 115 N.J.L. 319, 180 A. 225.

Appellant thereupon argues that, though complete and perfect in itself, the instant ordinance, purporting to amend an invalid ordinance, is itself invalid, citing Lassiter v. Atlantic City, 86 N.J.L. 87, 90 A. 675, 676. But in this case the situation is quite different from that in the Lassiter case. There ‘the amending ordinance standing by itself did not provide for any licenses,’ the very point at issue being whether or not the defendant Lassiter should have taken out a license. Thus, as the court continues, the later ordinance, ‘standing by itself, would not support the present conviction.’

In other words, there is a substantial difference between an amendment which is complete in itself, and one which changes but a few words in a previous ordinance, and is incomplete in itself. Obviously the latter, as the Lassiter case holds, does not itself express the clear will of the legislative body. It cannot itself notify the citizens, for whose governance it is adopted, of what that legislative will is. To do so, there must be added to such amendment the original enactment. But this original enactment is a nullity, or at least unenforceable, and hence adds nothing to the incomplete amendment. Such incomplete expression of the will of the governing body clearly cannot support a conviction.

On the other hand, if the enactment, which is later adopted, is complete in itself and without defect in its substance, it does clearly express the will of the enacting authority, and does give full notice to the citizens for whose benefit it is adopted. If these, the prime purposes for its existence, have therefore been completely accomplished, to invalidate the ordinance would defeat these prime purposes. Its defect is that the enacting authorities have mistakenly asked that it be inserted in a somewhat inappropriate place in the body of their law, i. e., as an amendment to a previously existing enactment rather than as an independent enactment. For its legal effect in actually changing the original enactment is the same, whether it be adopted as an amendment or as an independent act. In either event, the later expression of the legislative will governs, and the previous inconsistent expression is wiped out, whether the later expression be expressly by amendment or by an independent enactment.

Surely, when the prime purpose of the enactment has been met, both so far as the governing authority and the citizens are concerned, it is of little moment whether the later enactment has been fitted into the most appropriate, or a less appropriate, niche in the hall of municipal or legislative records. Hence, for all practical governmental purposes it is unimportant, from the standpoint of its validity, whether an ordinance, complete and perfect in itself, is recited as an independent enactment, or as an amendment to a previous ordinance.

And so are the authorities, both as to ordinances (Public Service Co. v. Ridgewood, 141 A. 672, 6 N.J.Misc. 435; 43 C.J., p. 561, § 883; People v. Bowman, 253 Ill. 234, 97 N.E. 304; City of La Crosse v. Elbertson, 205 Wis. 207, 237 N.W. 99), and as to statutes. State (Trenton Iron Co.) v. Yard, 42 N.J.L. 357; Smith v. Howell, 60 N.J.L. 384, 38 A. 180. Similar is the holding in the leading case of Allison v. Corker, 67 N.J.L. 596, 52 A. 362, 363, 60 L.R.A. 564, though in that case the new amending statute was not complete in itself, so that the original act, found invalid, had to be read in connection therewith. Nevertheless, despite the fact that the amending statute was incomplete, as was the ordinance in the Lassiter case, supra, the court in the Allison case concludes that this incomplete act, amendatory of a previously invalid act, was itself valid and enforceable. The court reaches this conclusion on the ground ‘that an unconstitutional statute is nevertheless a statute,’ so that the provisions of the valid act were still ‘a fact to be reckoned with.’ It is clearly in this connection that the court says that, ‘The supreme court cannot set aside a statute as it can a municipal ordinance.’ In other words, an unconstitutional statute may yet support an amending statute, as the former is still ‘a fact to be reckoned with,’ whereas an unconstitutional municipal ordinance may be a nullity, which cannot support an incomplete, amending ordinance, according to the Lassiter case. And this is the general rule.

Similarly, even where a statute has been repealed our courts have held it may be amended, provided the new enactment is a law complete in itself. Abrams v. Smith, 98 N.J.L. 319, 119 A. 792. And such is the weight of authority. Crawford, Construction of Statutes, Section 117; Commonwealth v. Kenneson, 143 Mass. 418, 9 N.E. 761; Columbia Wire Co. v. Boyce, 7 Cir., 104 F. 172; City of Beatrice v. Masslich, 8 Cir., 108 F. 743.

Since the amending ordinance here in question is complete in itself, both reason and authority support its validity in this regard, irrespective of its labeling as an amendment to a previous invalid enactment.

This conclusion renders it unnecessary to consider the question upon the assumption that the original Newark ordinance was but partially invalid. Doran v. Camden, 64 N.J.L. 666, 46 A. 724.

As to defendant-appellant's second point, that the ordinance does not expressly state the date it is to be effective and that it is consequently void, it is to be noted that there is no statutory enactment as to when ordinances are to be deemed to be intended to take effect in the absence of an express statement, as there is in the case of statutes, i. e., July 4th (N.J.S.A. 1:2-3). Nor is there any statutory requirement applicable to penal ordinances, such as this, expressly as to the time of their taking effect, the provisions in that regarding applying only to ordinances authorizing improvements, incurring of indebtednesses, or otherwise. R.S. 40:49-9; 40:49-27; 40:74-4, N.J.S.A. 40:49-9; 40:49-27; 40:74-4. The Home Rule Act, however, provides: ‘Upon passage, every ordinance, or the title * * * shall be published * * *.’ R.S. 40:49-2, N.J.S.A. 40:49-2. The Commission Government Act provides-with exceptions here immaterial-that: ‘No ordinance * * * shall take effect less than ten days from the time of its final passage.’ Thereafter follow detailed provisions to delay such taking effect in case during such ten days there is a remonstrance filed by the voters against its taking effect. (R.S. 40:74-5, N.J.S.A. 40:74-5.)

In other words, and assuming that both the Home Rule Act and...