Minard, Fish and Game Warden, v. Dover, R. & P. O. Gas Co.

• Decision Date: 06 March 1908
• Parties: MINARD, Fish and Game Warden, v. DOVER, R. & P. O. GAS CO.
• Court: New Jersey Supreme Court

68 A. 910

76 N.J.L. 132

MINARD, Fish and Game Warden,

v. DOVER, R. & P. O. GAS CO.

Supreme Court of New Jersey.

March 6, 1908.

(Syllabus by the Court.)

Prosecution by Charles Minard, fish and game warden, against the Dover, Rockaway & Port Oram Gas Company. From a judgment of conviction, defendant brings certiorari. Affirmed.

Argued November Term, 1907, before SWAYZE and TRENCHARD, JJ.

B. W. Elliott, for prosecutor. Robert H. McCarter, Atty. Gen., for defendant.

TRENCHARD, J. The defendant, the Dover, Rockaway & Port Oram Gas Company, was convicted by a justice of the peace of a violation of section 33 of the fish and game act approved April 14, 1903 (P. L. 1903, p. 534), for allowing refuse from its gashouse in Dover to flow into Rockaway river.

The prosecutor assigns and argues many reasons for setting aside the conviction, but they may all be resolved into two: (1) That the complaint and summons were not indorsed as is required in suits by common informers, under section 219 of our practice act (P. L. 1903, p. 594); and (2) that the conviction is not warranted by the evidence. With respect to the first reason, it will be observed that the section of the act alleged to have been violated provides only a penalty of $100 for its violation. The proceeding is, therefore, a civil action. Brophy v. Perth Amboy, 44 N. J. Law, 217; Pa. R. R. Co. v. N. J. Society, 39 N. J. Law, 400.

The proceeding is not, however, governed by the provisions of the practice act as to common informers, but by the fish and game procedure act of 1897 (P. L. 1897, p. 109), the first section of which provides that all penalties for violations of any of the fish and game laws of this state, whether general or special, shall be recovered in accordance with the provisions of the act. Section 2 of this same act, as amended in 1905 (P. L. 1905, p. 183), confers jurisdiction upon justices of the peace, district courts, and police magistrates to try and punish any person or corporation accused of violating any of the fish and game laws. Section 3 authorizes the issuance of a warrant to any constable, etc., to bring the defendant before the justice, etc., for a hearing, in a summary way, whereupon, if the defendant is convicted, a penalty is imposed, on failure of payment of which the justice is empowered to commit to the county jail for a period not exceeding 90 days. The fourth section provides for a summons, where a corporation is the defendant. The fifth section authorizes any constable, etc., to arrest any offender, without warrant, for violation done within his view, and to take him before the justice, who proceeds to hear and determine in a summary way the guilt or innocence of the person, after receiving a complaint from the officer. The sixth section provides that the prevailing party shall recover costs, which costs are to be the same as in the small cause court. The seventh section provides for an adjournment, and for the taking of a bond. The ninth section provides for an appeal to the common pleas, upon giving notice and a bond. The tenth section requires the magistrate, when an appeal has been taken, to send all papers, together with the transcript of the proceedings, to the common pleas, which court is to hear the appeal in the same way as the case was heard before the magistrate. The eleventh section provides that the fish and game protector, fish and game wardens, and deputy fish and game wardens should have the power and be entitled to the same fees for services of process as constables in the small cause court. The fourteenth section provides for the docketing in the office of the clerk of the circuit court of any judgment obtained under the provisions of the act. The sixteenth section provides that all proceedings for the recovery of penalties should be entitled and run in the name of the state of New Jersey with one of the fish and game wardens, etc., as prosecutor. The above references to the procedure act of 1897, supra, are given for the purpose of showing that it provides for a summary proceeding before a magistrate, and that its provisions are in no wise similar to the act referred to in White v. Neptune City, 56 N. J. Law, 222, 28 Atl. 378, where the statute empowered a justice of the peace of the county to issue process, to hear the testimony, and give judgment. It is readily observable that the statute referred to in White v. Neptune City failed to prescribe the machinery for a summary proceeding, and that therefore the action must have been before a justice of the peace holding the small cause court. The fish and game procedure act, however, as has been seen, does provide the necessary machinery. The citation of a few cases, however, will suffice to show that this is a summary proceeding before a magistrate.

In Hoeberg v. Newton, 49 N. J. Law, 617, 9 Atl. 751, which was an action for the recovery of a penalty for violation of the oleomargarine act of 1886 (P. L. 1886, p. 107), which act authorizes any district court in any city, and every justice of the peace in any county, on receiving an oath or affirmation of the violation of the law, to issue a warrant, and, upon the return of the same, to hear testimony, and to determine and give judgment in the matter without the filing of any pleadings, the Supreme Court, in an opinion by Mr....