Hedden v. Hand

• Decision Date: 20 June 1919
• Docket Number: No. 24.,24.
• Citation: 107 A. 285
• Parties: HEDDEN v. HAND.
• Court: New Jersey Supreme Court

107 A. 285

HEDDEN

v. HAND.

No. 24.

Court of Errors and Appeals of New Jersey.

June 20, 1919.

Appeal from Court of Chancery.

Bill by Clarence H. Hedden against Thomas J. Hand. Motion to strike jout bill denied, and defendant appeals. Reversed.

Henry L. Grosken, of Newark, for appellant.

Arthur T. Vanderbilt, of Newark, for respondent.

KALISCH, J. The complainant filed his bill of complaint as a resident of the city of Newark, in the county of Essex, in the Court of Chancery, charging that Thomas J. Hand, on June 22 and 30, on July 7 and 14, on August 18, on September 15, 1918, and continuously for some time prior thereto, did keep and maintain a certain building for the purpose of lewdness, assignation, and prostitution and the habitual sale of intoxicating liquors in violation of law, and wherein other indecent and disorderly acts are permitted and occur. The complainant prayed that an injunction may issue directed to Thomas J. Hand, and to the owner and lessor of the premises and their agents, perpetually enjoining them, their agents and lessees, from maintaining and permitting such nuisance, and likewise enjoining the removal of any furniture, furnishings, musical instruments, or other personal property, except clothing, from said building, pending the final hearing of the cause.

A restraining order was issued in pursuance of the prayer, subject to further order of the court.

A motion was made to strike out the bill on the ground that the legislative acts upon which the legal efficacy of the bill depended are unconstitutional. This motion was denied, and hence this appeal.

The sole basis of the bill is the act of 1916 (P. L. p. 315) as amended in 1918 (P. L. p. 739).

The statute of 1916 is entitled:

"An act declaring all buildings and places wherein or upon which acts of lewdness, assignation or prostitution are permitted or occur to be nuisances, and providing for the abatement thereof by the Court of Chancery."

The statute of 1918 is amendatory of the title of and provisions of the act of 1916, and by section one amends the title so as to read:

"An act declaring all buildings and places wherein or upon which acts of lewdness, assignation or prostitution or the habitual sale of intoxicating liquor in violation of law are permitted or occur to be nuisances, and providing for the abatement thereof by the Court of Chancery."

The evident purpose of this amendment was to add to the category of acts mentioned as nuisances in the title of the act of 1916 the habitual unlawful sale of intoxicating liquor.

The other provisions of the statute of 1916, amended by the later act, are: Section 8, which makes provision that where the disorderly house consists of the habitual unlawful sale of intoxicating liquor, such liquor may be removed, and shall be destroyed as soon as may be when no longer required for evidence; section 9, which excepts intoxicating liquors from the operation of the clause of this section relating to fees to be allowed to the officer for removing and selling movable property; and section 10, which excludes intoxicating liquors from coming within the purview of the section.

On this branch of the case counsel of appellant first contends that the amendatory act is in violation of article 4, section 7, paragraph 4, of the Constitution of New Jersey, in that the object of the act is not expressed in its title.

In support of this contention it is argued, in substance, that the title of the original act was made to fit its object as then created, and that the effect sought to be attained by the amendatory act was to enlarge the scope of the original, so that its provisions would become applicable to a new subject-matter not embraced within the language or meaning of its title or body, namely, by adding to its category of acts denounced as nuisances "the habitual sale of intoxicating liquors in violation of law," of which there is no premonition in the title of either act.

In so far as the title of the act of 1918 is concerned in its relation to the introduction into its body the provision of the habitual sale of intoxicating liquors in violation of law as a new subject-matter to be embraced within the scope and operation of the act of 1916, it is plain that the amendatory statute does not express this object in its title.

Its title is palpably deceptive and misleading. It gives notice that its object is to amend the title and provisions of an act, etc. It is silent in what respect the title is to be amended, and leaves it open to belief that all the provisions of the act of 1916 are to be amended. The original act contains 14 sections, of which five were amended. The title of the later statute gives no notice that it was to contain a provision in its body which in effect would broaden the act of 1916 so as to extend the jurisdiction of the Court of Chancery to cases where the nuisance consists of "the habitual sale of intoxicating liquor in violation of law."

In support of the constitutionality of the amendatory act it is strenuously argued, by counsel of respondent, that the legislation impugned does not attempt to ingraft on the original statute incongruous matter, since both acts deal with nuisances and provide identical remedies, and that the act and amendment would be valid if it were merely "an act concerning nuisances and the abatement thereof in chancery."

The statement that both acts deal with nuisances and provide identical remedies is not quite accurate. The amendments, in some respect, provide a different procedure where the nuisance complained of is created by the habitual unlawful sale of intoxicating liquor from that pursued in cases of nuisance provided for in the original act.

Further, the argument addressed to us ignores the vital circumstance that the title of the statute under discussion limits the invoking of the action of the court of chancery to certain acts which are specifically mentioned and denominated in the title as nuisances, and which according to unquestioned and settled statutory construction by necessary implication excludes all other public nuisances at common law from the operation of the act.

The present statute in its title differs from a situation where such title is general and broad enough to include within its terms congruous matter dealt with by the amendment.

The title by reason of its specific restrictive language, in the present instance, violates a fundamental rule of the constitutional mandate, in that it fails to give notice of the effect of the legislation to one conversant with the existing state of the law. Sawter v. Schoenthal, 83 N. J. Law, 501, 83 Atl. 1004. The reasoning of Mr. Justice Swayze speaking for this court, in the case cited, is peculiarly applicable here. At page 503 of 83 N. J. Law, at page 1005 of 83 Atl., he says:

"If now we look at the essential character of this legislation, it is plain that the Legislature's object was to tax transfers of property occurring from the death of the owner or made in contemplation of his death, or to take effect at or after his death. The original legislation reached only certain kinds of transfers. The amendment of 1906 sought to make this more general, and to reach all transfers in such cases. In common parlance all were spoken of as inheritance taxes, and if the title of the act of 1894 had read 'An act to tax estates and inheritances,' it would have been broad enough to include the matter of the act of 1906," etc.

And so in the case sub judice, if the title of the act of 1916 had read, "An act concerning nuisances and the abatement thereof in chancery," it would not only have been broad enough to include the unlawful habitual sale of intoxicating liquor, as well as any other public nuisance, such as gaming houses, resorts for thieves, idlers, disorderly persons, etc., which, though they are congruous, with the subject-matter of the act of 1916, being public nuisances, are nevertheless excluded from the operation of the statute by reason of its specific title. The act of 1918 by reason of its defective title is inoperative and unenforceable.

The elimination of this statute from the case on account of the constitutional defect pointed out removes one of the basic grounds upon which the complainant's bill and the action of the court below rested.

The legality of the proceedings under review must therefore derive its sole support from the original act of 1916.

The constitutionality of that statute is also questioned on two principal grounds which may be summed up as follows: (1) That the statute contains unconstitutional provisions, and which provisions are so interwoven with other sections of the act that those which are unconstitutional cannot be exscinded without rendering the entire statute inoperative; (2) that the legislation, in itself, is unconstitutional, in that it attempts to confer upon the Court of Chancery jurisdiction of a subject-matter of a purely criminal character.

The interesting questions raised, by counsel of appellant, as to the constitutionality of several provisions of the statute involving fundamental propositions which may affect more or less the validity of the whole act, need not be considered and decided on this appeal, for the reason that there is a prime fundamental question which goes to the validity of the entire statute, and that is whether the Legislature overstepped the bounds of its constitutional limitations in attempting to confer jurisdiction upon the Court of Chancery of the subject-matter dealt with by the act. Thus it becomes important to consider first the purpose and nature of the statute.

The fixed purpose of the statute, evidenced by its title, is to declare that certain buildings or places in or upon which the acts specified in the title are permitted or occur to be nuisances and to be abated in the Court of Chancery. The first section of the act substantiall follows its title. The specific violations denounced therein...