Department of Labor and Industry v. Rosen

• Decision Date: 25 February 1957
• Docket Number: No. A--683,A--683
• Citation: 44 N.J.Super. 42,129 A.2d 588
• Parties: DEPARTMENT OF LABOR AND INDUSTRY, State of New Jersey, Plaintiff-Appellant, v. Max ROSEN, Defendant-Respondent. . Appellate Division
• Court: New Jersey Superior Court — Appellate Division

Page 42

44 N.J.Super. 42

129 A.2d 588

DEPARTMENT OF LABOR AND INDUSTRY, State of New Jersey Plaintiff-Appellant, v. Max ROSEN, Defendant-Respondent.

No. A--683.

Superior Court of New Jersey Appellate Division.

Argued Feb. 4, 1957.

Decided Feb. 25, 1957.

John F. Crane, Trenton, for plaintiff-appellant (Grover C. Richman, Jr., Atty. Gen. of New Jersey, Attorney).

No appearance for nor brief filed by the defendant-respondent.

Before Judges GOLDMANN, FREUND and CONFORD.

The opinion of the court was delivered by

FREUND, J.A.D.

The State, through the Department of Labor and Industry, filed in the Municipal Court of the City of Paterson 19 complaints against the defendant, Max Rosen, president of Victory Fabrics, Inc., charging violation of the provisions of N.J.S.A. 34:11--4 for failure to pay his employees their full wages. The parties stipulated that only one of the cases be tried and that the decision be dispositive of all. The trial court found that the defendant had violated the statute, imposed a penalty of $50 for each of the 19 violations and entered judgment for the plaintiff in the amount of $950. The defendant appealed to the Passaic County Court which, after a trial De novo, reversed, 40 N.J.Super. 363, 123 A.2d 79, (Cty.Ct.1956), entering a judgment of no cause of action in favor of the defendant. The plaintiff appeals.

There is no dispute as to the facts, only a legal issue is before us. N.J.S.A. 34:11--4 requires that:

'Every person, firm, association or partnership * * * and every corporation * * * shall pay at least every two weeks, in lawful money of the United States, to each and every employee engaged in his, their or its business * * * the full amount of wages earned and unpaid in lawful money to such employee, up to within twelve days of such payment.'

The penalty for violation of this section is prescribed in N.J.S.A. 34:11--6 which provides that:

'Every person, firm, association, partnership or corporation mentioned' in the above section 'and every officer or agent thereof who shall violate any of the provisions of said section 34:11--4 shall, for the first offense, be liable to a penalty of fifty dollars ($50.00) and for the second and each subsequent offense to a penalty of one hundred dollars ($100.00), to be recovered by and in the name of the Department of Labor of this State. * * *'

At the trial De novo, the defendant admitted that his employees had not been paid their full wages. The corporation conducted a commission business, weaving at a specified rate per yard materials owned and supplied by its customers. Because of financial difficulties the corporation defaulted in the payment of rent, the landlord distrained, and the owners removed their materials. The defendant testified that he divided 'all the money that I had in the bank at the time equally amongst my help. It amounted to about twenty per cent. * * * I was unable to pay them in full, because I hadn't any money * * * I had no means of paying.' The County Court reversed the judgment below on the ground that the proceeding was criminal in nature, requiring proof of guilt beyond a reasonable doubt of intention to violate the statute or a willful refusal to pay the wages due, and that the State failed to so prove.

Regardless of in how sympathetic a light this court may view the defendant's situation, our duty is to construe the statute as enacted. We cannot write into the statute conditions or qualifications; that is the function of the Legislature.

The issues are these: (1) are the pertinent statutes criminal in nature, and (2) is proof of willful intention to violate required?

Historically, N.J.S.A. 34:11--4 is derived from Chapter 179 of the Laws of 1896 and Chapter 38 of the Laws of 1899, the latter entitled 'An Act to provide for the payment of wages in lawful money of the United States every two weeks.' The motivating factor for the enactment of the legislation was the elimination of the practice prevalent among factory owners, particularly by owners of glass factories in southern New Jersey, of paying wages in the form of order books or scrip, redeemable only at company-owned stores. Cumberland Glass Mfg. Co. v. State, 58 N.J.L. 224, 33 A. 210 (Sup.Ct.1895); see Daily True American, Trenton, N.J., March 14--17, 1896; February 28, March 10 and 17, 1899. The statutes, an exercise of the police power of the State, have decided economic benefits to the employee. The assurance of payment in cash at regular intervals of wages upon which an employee is dependent for the support of himself and his family is obviously an economic and social necessity. Indeed, such a view has biblical support: 'The wages of him that is hired shall not abide with thee all night until the morning,' Levitious, 19, 13; 'At his day thou shalt give him his hire, neither shall the sun go down upon it; * * *' Deuteronomy, 24, 15.

The unsavory practice proscribed by the Legislature had also been prevalent in other jurisdictions where employers in socalled company towns paid employees in scrip or specially marked coinlike pieces of metal redeemable only at company commissaries for food and clothing, or applicable to rent for company houses. An excellent article, 'The Constitutionality of Bimonthly Pay Day Laws,' 16 Tenn.L.Rev. 940 (1941), by Cyril J. Smith states:

'Thirty-six states have laws requiring periodic pay days. Violation subjects the employer to criminal punishment in twenty of them, to civil penalties in nine, to both in six and in one no penalty is imposed.'

New Jersey is one of the nine states which impose a civil penalty only.

It has been held by the Supreme Court of the United States that statutes like the one under consideration requiring employers to pay wages in cash at stated intervals and imposing penalty for failure so to do, do not violate due process. Erie R.R. v. Williams, 233 U.S. 685, 34 S.Ct. 761, 58 L.Ed. 1155 (1914), nor do they invalidly limit freedom of contract, Knoxville Iron Co. v. Harbison, 183 U.S. 13, 22 S.Ct. 1, 46 L.Ed. 55 (1901); Keokee Consol. Coke Co. v. Taylor, 234 U.S. 224, 34 S.Ct. 856, 58 L.Ed. 1288 (1914).

The court below declared that while an action for the recovery of a penalty is a civil action, 'it is, however, criminal in nature.' (40 N.J.Super. 363, 123 A. 81) This ruling is contrary to longsettled principles of law, restated with supporting decisions in the exhaustive opinion of Chief Justice Vanderbilt in the recent case of Sawran v. Lennon, 19 N.J. 606, 612--616, 118 A.2d 10, 13 (1955), wherein he said:

'Suits for penalties * * * originating in the same way by statutes * * * are neither criminal nor quasi-criminal in nature but civil. Such offenses are punishable, as the name implies, by Penalties * * * (but not, as in cases of disorderly conduct, by Fines) and in appropriate cases by corporal imprisonment. * * * Penalty actions, moreover, unlike fines in criminal cases and in proceedings against disorderly persons, may involve sanctions which may enure to the benefit of private individuals, such as Qui tam action * * * The clear purpose of both quasi-criminal proceedings against disorderly persons and civil actions for penalties is to provide a summary action for the disposition of minor offenses free from indictment and trial by jury in cases not deemed sufficiently important to call for indictment and trial by jury. * * *

'By great weight of authority actions for the collection or enforcement of a penalty only have been held to be civil proceedings * * * The distinction is that they are enforced, not by criminal imprisonment, but through a civil action * * * or through * * * hybrid summary civil proceeding which starts with a complaint * * * and ends with a judgment of conviction. * * * Both are nevertheless civil in nature and involve execution against the goods and chattels of the defendant (and also his lands if the judgment is in the County Court) * * * or against the body of the defendant on a civil Capias if the court specially orders, N.J.S. 2A:58--4 (N.J.S.A.), R.R. 7:13--14. This line of authority showing unquestionably the civil nature of a penalty provision clearly excludes any possible implication of a forfeiture resulting from a criminal act.'

The distinction between a penalty and a fine is thus stated in 23 Am.Jur., Forfeitures and Penalties, § 28, p. 624:

'* * * a penalty, like a fine, is a pecuniary punishment inflicted by the law for its violation. Nevertheless, there is a marked distinction between a fine and a penalty which is recognized by the courts. A penalty is that which is demanded for the violation of a statute, which violation may or may not be a crime. A fine is a punishment for the commission of a crime. Crimes, except the gravest, can be punished only by fine or imprisonment. A penalty is not in any legal sense a fine. Indeed, nearly all statutes giving a penalty for committing a prohibited act preserve the distinction by providing that the penalty may be recovered in a civil action, while a crime, if it be so declared, must be punished by the infliction of a fine or imprisonment, after conviction in a criminal action.'

N.J.S.A. 34:11--6 provides only for assessment of a monetary penalty, and N.J.S.A. 34:11--7 directs that the enforcement shall be in accordance with N.J.S. 2A:58--1 et seq., N.J.S.A., the Penalty Enforcement Statute, which governs enforcement of penalties under all statutes. Clapp, 8 Rutgers L.Rev. 20--21 (1953). N.J.S. 2A:58--4, N.J.S.A., provides that 'If a money judgment is rendered against a defendant, execution may issue' first, against his goods, and second, against his lands, and '(3) against the body of such defendant if the court * * * shall, by special...