Burton v. Sills

• Decision Date: 10 February 1967
• Docket Number: No. L--33993,L--33993
• Citation: 99 N.J.Super. 516,240 A.2d 462
• Parties: L. Arthur BURTON, Louis A. Benton, Edmond H. Shuler, Al L. Toth, Herman Treptow, George Schielke and Citizens Committee for Firearms Legislation, a corporation of the State of New Jersey, Plaintiffs, v. Arthur J. SILLS, Attorney General of the State of New Jersey, and Colonel David B. Kelly, Superintendent of State Police of New Jersey, Defendants.
• Court: New Jersey Superior Court

Page 516

99 N.J.Super. 516

240 A.2d 462

L. Arthur BURTON, Louis A. Benton, Edmond H. Shuler, Al L Toth, Herman Treptow, George Schielke and Citizens Committee for Firearms Legislation, a corporation of the State of New Jersey, Plaintiffs, v. Arthur J. SILLS, Attorney General of the State of New Jersey, and Colonel David B. Kelly, Superintendent of State Police of New Jersey, Defendants.

No. L--33993.

Superior Court of New Jersey

Law Division.

Feb. 10, 1967.

William E. Ozzard, Somerville, for plaintiffs (Beekman, Ozzard & Mauro, Somerville, attorneys).

Arthur J. Sills, Atty. Gen., attorney for defendants (John W. Hayden, Jr., Newark, appearing).

LEAHY, J.C.C. (temporarily assigned).

This is a motion for summary judgment brought by defendants Arthur J. Sills, Attorney General of New Jersey, and Colonel David B. Kelly, Superintendent of the New Jersey State Police, seeking an order dismissing, with prejudice, the complaint of plaintiffs L. Arthur Burton, Louis A. Benton, Edmond H. Shuler, Al L. Toth, Herman Treptow, George Schielke and the Citizens Committee for Firearms Legislation, a corporation of the State of New Jersey, or for such other relief as the court may grant.

The complaint demands judgment: (a) temporarily enjoining defendants and each of them, their agents and servants, pending the final determination of this cause, from enforcing or in any manner implementing the enforcement of the provisions of chapter 60 of the Laws of 1966; (b) permanently enjoining such enforcement; (c) declaring chapter 60 unconstitutional and void, and (d) seeking such other relief as to the court may seem just and proper.

Request (a) was disposed of by the Appellate Division when it entered an order reversing the trial court's issuance of an interlocutory injunction.

The main thrust of the complaint concerns that part of the statute bringing rifles and shotguns within its purview. It might be pointed out that these items were subject to certain statutory provisions prior to the enactment of chapter 60. See N.J.S. 2A:151--2, 5 through 9, and 19 through 23, N.J.S.A. The new law extends the regulation of rifles and shotguns to sales, N.J.S. 2A:151--32 et seq., N.J.S.A.; the carrying on of nonexempted activities, N.J.S. 2A:151--41, N.J.S.A., and the licensing of retail dealers, N.J.S. 2A:151--24 et seq., N.J.S.A.

Plaintiffs assert in their complaint, among other things, that the Superintendent of State Police's power to prescribe certain standards for manufacturers, wholesalers and retailers of firearms is without limits set by the Legislature; the standards set forth in the statute, which an applicant for a firearms purchaser card must meet, are not established with sufficient clarity, but are left to the discretion of the local chief of police; the provisions for disqualification of an applicant do not set forth adequate standards for police officials to follow; the statute fails to protect the rights of individuals dealt with; the statute impedes the hunters' safety program in New Jersey; the requirement that an applicant give detailed information to the authorities is an invasion of privacy; the statute interferes with the flow of interstate commerce; it violates plaintiffs' rights under the First, Second, Fifth, Ninth, and Fourteenth Amendments of the United States Constitution; and, finally, the statute violates plaintiffs' rights under Article I of the Constitution of the State of New Jersey.

Plaintiffs complain that standards and qualifications are to be prescribed by the Superintendent of State Police for manufacturers, wholesalers, and retail dealers of firearms, and that he is given board powers without legislative direction or specification. N.J.S. 2A:151--19, N.J.S.A., provides that as to manufacturers and wholesalers:

'The superintendent shall prescribe standards and qualifications for registration of manufacturers and wholesalers of firearms, for the protection of the public safety, health and welfare. If the superintendent is satisfied that an applicant for registration cannot be permitted to carry on business as a manufacturer or wholesale dealer in firearms without danger to the public health, safety or welfare, he may refuse to register the applicant.'

N.J.S. 2A:151--24 provides that:

'The superintendent shall prescribe standards and qualifications for retail dealers of firearms for the protection of the public safety, health and welfare.'

The question to be decided is whether these standards are reasonable, constitutional and valid.

Our Supreme Court, in Elizabeth Federal S. & L. Ass'n v. Howell, 30 N.J. 190, 194, 152 A.2d 359 (1959) determined that the 'public interest' was a valid standard. And in In Re Greenville Bus Company, 17 N.J. 131, 110 A.2d 122 (1954), the court held that the terms 'public convenience' and 'public interest,' although general in nature, were sufficient to guide administrative authority and to satisfy constitutional requirements.

In Moyant v. Borough of Paramus, 30 N.J. 528, 154 A.2d 9 (1959), the court, in speaking of adequate standards, sustained the validity of an ordinance empowering the chief of police to issue peddlers' permits upon a showing that the applicant's business and moral character were satisfactory. The court held that it was not necessary to set forth explicit standards if they could be inferred from the entire ordinance, and that the standard of promotion of health, morals and general welfare set forth in N.J.S.A. 40:48--2 was not so vague a directive to municipal authorities as to be unconstitutional. In Ward v. Scott, 11 N.J. 117, 123, 93 A.2d 385, 388 (1952), the court stated:

'The exigencies of modern government have increasingly dictated the use of general rather than minutely detailed standards in regulatory enactments under the police power.'

In cases where there has been a question in regard to standards, the courts have weighed the inability of the Legislature to promulgate precise standards against the objectives of the designated acts. Where the legislative objectives are clear, the delegation of authority is valid provided that protection from the arbitrary and unreasonable acts of the administrator is available through judicial review. Tagg Bros. & Moorhead v. United States, 280 U.S. 420, 50 S.Ct. 220, 74 L.Ed. 524 (1930); New York Central Securities Corp. v. United States, 287 U.S. 12, 53 S.Ct. 45, 77 L.Ed. 138 (1932); NBC v. United States, 319 U.S. 190, 63 S.Ct. 997, 87 L.Ed. 1344 (1943); Jones v. Haridor Realty Corp., 37 N.J. 384, 391, 181 A.2d 481 (1962). The instant statute, in N.J.S.A. 2A:151--21, 24, 34 and 44.1, provides such a means of appeal.

Plaintiffs claim that the act disqualifies applicants on the basis of drunkenness without setting forth any standards to guide officials in determining drunkenness and the degree thereof. The statute actually provides that no pistol or revolver purchase permit for firearms or purchase identification card shall be issued to any person 'who is presently a habitual drunkard.' The term 'habitual drunkard' was defined in Northwestern Mutual Life Insurance Co. v. Muskegon National Bank, 122 U.S. 501, 507, 7 S.Ct. 1221, 1224, 30 L.Ed. 1100 (1887); '* * * if you find that the habit and rule of a man's life is to indulge periodically and with frequency, and with increasing frequency and violence, in excessive fits of intemperance, such a use of liquor may properly cause the finding of habitual drunkenness.' This is certainly a sufficient standard to guide administrators.

Plaintiffs also contend that the statute provides for disqualification of applicants on the basis of addiction to narcotics and habitual use of 'goof balls' or 'pep pills' without setting forth any definitions to guide the determination of officials charged with administration thereof. 'Narcotic drugs' are defined in R.S. 24:18--2, N.J.S.A. and the term 'addiction to narcotics' has never presented difficulty to the judiciary. See Boyd v. United States, 271 U.S. 104, 46 S.Ct. 442, 70 L.Ed. 857 (1926).

While it is true that the terms 'pep pills' and 'goof balls' are colloquial, nevertheless they are already the subject of legislation: N.J.S. 2A:170--77.8, N.J.S.A. These terms have all been used by the New Jersey courts. See State v. Wolak, 26 N.J. 464, 140 A.2d 385 (1958). Any habitual use thereof is readily determined by investigating authorities.

Plaintiffs argue that the disqualification of an applicant on the basis of mental disorder does not establish any standards to guide the determination of officials charged with administration thereof. N.J.S. 2A:151--33(a) and (b), N.J.S.A. refers to (a) one confined in a hospital, mental institution or sanitarium, and (b) to one who has ever been confined for a mental disorder, but allows such person to overcome disqualification by producing a certificate of a medical doctor or psychiatrist licensed in New Jersey, or other satisfactory proof that he is no longer suffering from that particular disability in a manner that would interfere with or handicap him in the handling of firearms.

As to the plaintiffs' contention that the statute provides for disqualification of an applicant solely for holding political and social beliefs, without any evidence that a crime or anti-social act has been committed, planned or contemplated, the answer is that no such provision exists in the statute. The provision in the application form which requires the applicant to set forth whether or not he presently or ever has been a member of any organization which advocates or approves the commission of acts of force and violence, either to overthrow the government of the United States or of this State, or who seeks to deny others their rights under the Constitution of either the United States or the State of New...