Borough of Ramsey v. Basil

• Decision Date: 23 September 1941
• Citation: 21 A.2d 860,19 N.J.Misc. 555
• Parties: BOROUGH OF RAMSEY v. BASIL et al.
• Court: New Jersey Court of Common Pleas

21 A.2d 860

19 N.J.Misc. 555

BOROUGH OF RAMSEY

v. BASIL et al.

Court of Common Pleas of New Jersey, Bergen County.

Sept. 23, 1941.

Proceeding by the Borough of Ramsey against Peter Basil and Samuel Basil for violating an ordinance by tampering with a water meter. On petition for review of a decision of the Mayor of the Borough of Ramsey by the Court of Common Pleas, sitting as a special statutory tribunal under N.J.S.A. 2:215-7.

Petition dismissed.

Romeo R. Napolitano, of Ramsey, for the Borough.

James M. Muth, of Ramsey, for defendants.

DELMAR, Judge.

The petition of the defendants, addressed to me as a Judge of the Court of Common Pleas, Bergen County, sitting as a Special Statutory Tribunal, under R.S. 2:215-7, N. J.S.A. 2:215-7, alleges that they were "convicted" of violating Section 25 of Ordinance 71 of the Borough of Ramsey and fined five dollars each therefor by F. Williams Gertzen, Mayor of the Borough of Ramsey. The return of the Mayor shows that the defendants were "convicted" of violating said ordinance by tampering with a water meter.

Defendants' brief sets forth five reasons why, it is alleged, the judgment of the Mayor should be reversed. I deem it unnecessary to consider the merits of the defendants' contentions, because, as I view it, they are not entitled to have said judgment reviewed by me.

The ordinance in question, by Section 32, provides that any person violating any section thereof, shall upon conviction be subject to a fine of not more than fifty dollars for each and every offense, and that the officer before whom such person shall be brought, on conviction, shall impose a fine, in the discretion of such officer, of not more than fifty dollars.

The cases hold that where the violation of an ordinance is punishable by fine only, the proceeding to impose such fine is a civil suit. Brophy v. City of Perth Amboy, Err. & App., 44 N.J.L. 217; White v. Borough of Neptune City, Sup.Ct., 56 N.J L. 222, 28 A. 378; Unger v. Township of Fanwood, Sup.Ct, 69 N.J.L. 548, 55 A. 42; Van Bueren v. City of Wildwood, Sup. Ct, 153 A. 260, 9 N.J.Misc. 187. The fact that the statute R.S. 40:87-41, N.J.S.A. 40: 87-41, provides that in default of the payment of the fine the defendants may be imprisoned, does not alter the character of the proceeding. White v. Borough of Neptune City, 56 N.J.L. 222, 28 A. 378; Tenement House Board v. Gruber, 79 N.J.L. 257, 75 A. 475; Lowrie v. State Board, 90 N.J.L. 54, 99 A. 927.

R.S. 40:87-32, N.J.S.A. 40:87-32, gives to the mayor of a borough the power to hear, try and determine, according to law, all actions which may be brought for the recovery of any penalty prescribed for the violation of any ordinance of the borough, and all offenses charged before him by complaint on oath, in writing, to have been committed in violation of such ordinances, for which the punishment is by fine or imprisonment. This section empowers the Mayor to try violators of ordinances, whether the procedure is a summary proceeding of a quasi-criminal character or whether it is a suit for a penalty such as the one under consideration.

R.S. 40:87-39, N.J.S.A. 40:87-39, provides for the procedure before the mayor, which, in the case of a suit for the recovery of a penalty for the violation of a borough ordinance, is to be, as nearly as may be, conducted in the manner prescribed for the proceedings in the Small Cause Courts.

R.S. 40:87-42, N.J.S.A. 40:87-42, provides for an appeal to the Common Pleas Court where the penalty imposed shall exceed twenty dollars. The defendants could not appeal to the Court of Common Pleas under this section because the fines imposed upon them were only five dollars each; so they have petitioned me under R.S. 2:215-7, N.J.S.A. 2:215-7, to review their conviction. This latter statute was first enacted, as set out in Chapter 228 P.L. 1908, under the title, "A Supplement to an act entitled 'An act relating to courts having criminal jurisdiction and regulating proceedings in criminal cases' (Revision of 1898), Approved June fourteenth, one thousand eight hundred and ninety-eight." It became Section 145b, "Criminal Procedure Act," Compiled Statutes 1910, page 1868, and is now classified in the Revised Statutes under the sub-title, "Police Courts And Magistrates." Does this statute authorize a review by a Judge of the Court of Common Pleas where the proceeding before the Mayor is in the nature of a civil suit? I think not. The title of the act alone is sufficient to show that the proceedings to be reviewed thereunder were to be of a criminal nature. A review of the cases in which said statute has been cited fails to disclose any judicial...