State v. Congdon

• Decision Date: 16 October 1962
• Docket Number: No. A--484,A--484
• Citation: 185 A.2d 21,76 N.J.Super. 493
• Parties: The STATE of New Jersey, Plaintiff-Respondent, v. Lois CONGDON and Neal Mosher, Defendants-Appellants.
• Court: New Jersey Superior Court — Appellate Division

Page 493

76 N.J.Super. 493

185 A.2d 21

The STATE of New Jersey, Plaintiff-Respondent, v. Lois CONGDON and Neal Mosher, Defendants-Appellants.

No. A--484.

Superior Court of New Jersey, Appellate Division.

Argued Sept. 10, 1962.

Decided Oct. 16, 1962.

Emerson L. Darnell, Mt. Holly, for appellants.

Bertram Polow, First Asst. Pros., for respondent (Frank C. Scerbo, Morris County Pros., attorney.)

Before Judges GOLDMANN, FREUND and FOLEY.

The opinion of the court was delivered by

FREUND, J.A.D.

Defendants appeal from a conviction in Morris County Court for a violation of N.J.S.A. App.A:9--49(f) of the Disaster Control Act, N.J.S.A. App.A:9--30 et seq. Section 49(f) provides that anyone refusing to obey the lawful orders of authorized civil defense personnel shall be adjudged a disorderly person.

On April 28, 1961 the Division of Civil Defense in the New Jersey Department of Defense conducted a state-wide civil defense practice drill known as 'Operation Alert 1961.' This drill was part of a national program cooperated in by federal, state and local governments, as well as the public at large.

Although no specific proclamation was issued by the Governor pertaining to 'Operation Alert 1961,' on March 10, 1955, the Governor by proclamation set up the Civil Defense and Disaster Control Plan, binding upon every person in the State. On February 23, 1961 the Acting State Director of Civil Defense and Disaster Control promulgated 'Informational Bulletin No. 212' describing 'Operation Alert 1961.'

The student body at Drew University, Madison, N.J., had been informed of this air raid drill several days before April 28. A notice of participation by the university was directed to the entire student body and posted, along with detailed instructions and reference to the Disaster Control Act, including its penalty provisions. This notice included a detailed description of the air raid signals, in addition to the statement that failure to take cover might result in conviction as a disorderly person, with possible imprisonment up to a year or a fine up to $175, or both. Two faculty members were officially designated as 'Civil Defense and Disaster Control Coordinators' for the university.

Defendants Lois Congdon and Neil Mosher were students at Drew University at the time of this drill. They had helped form a student organization called 'ARROW' (Associated Realists Resisting Organization for War), whose general purpose was to demonstrate its members' belief in the deleterious effects and futility of civil defense. In particular, its immediate purpose was 'to deal with the April 28 exercises.'

Prior to this date, ARROW representatives circulated a leaflet which urged participation in a 'campus protest against civil defense.' The form of this protest was for students to attend an open air meeting before the sounding of the sirens and, after the take cover signal, either to distribute ARROW handbills in shelter areas or to remain at the site of the meeting. The leaflet noted the penalties imposed by law for failing to take cover but added that 'legal counsel suggests that there is serious question as to whether in fact the law can be made to apply to our situation.' It concluded with a statement that ARROW's 'activities are carried out under a discipline of non-violence which includes a respect for the structure of law itself most deeply when we are obliged not to comply with an individual law, for conscience' sake.'

Additional information issued by ARROW included 'A Resolution Concerning Civil Defense, Approved by The First Annual Meeting of The General Board of Christian Social Concerns of The Methodist Church.' This resolution speaks of the horrors inherent in nuclear and bacteriological warfare and states that civil defense aids the cause of war by spreading fear and hatred through its preparation for inevitable attack. The closing paragraph of the resolution calls upon all who have 'a Christian concern for the welfare and peace of all mankind' to work for 'a world at peace.'

A final document issued by ARROW was 'A Statement of Intention and Purpose Concerning Civil Defense' which defendants urged others to sign prior to their refusal to take part in the air raid drill in question. This statement reiterates the doctrine of the preceding resolution concerning the 'functional futility of civil defense.' Pledging adherence to 'the non-violent technique of active resistence as personified by such leaders as Martin Luther King and Mahatma Gandhi * * *,' the statement compares its 'sit-out' challenge to the law with the contemporary 'sit-in' demonstrations in the South and those who resisted the 'law of the land' in the ante-Civil War underground railroad. Although the statement notes that nonparticipation in the drill may result in litigation testing the validity of the allegedly ambiguous civil defense statute, the 'sit-out' participants expressly assume full responsibility for their actions. The concluding sentence of the statement notes that their 'primary motivation' is 'to follow the leadings of conscience.'

On April 28, after the sounding of the air raid signal called for by 'Operation Alert 1961,' defendants and five other students remained quietly seated on the university grounds. They refused to take cover when specifically requested to seek protection in a nearby building by Drew University's civil defense and disaster control co-ordinators.

Defendants were charged on May 4, 1961 with violation of N.J.S.A. App.A:9--49(f), (g), and (h) in a complaint signed by the Director of Civil Defense and Disaster Control for Madison. At a trial in the municipal court on May 18 defendants were found guilty of violating subsections (f) and (g) and fined $25, plus costs. On appeal to the Morris County Court both defendants were found guilty of violating only subsection (f), but the fine was raised to $50, plus costs. Consequently, the only provision we need examine is N.J.S.A. App.A:9--49(f), which reads as follows:

'Any person who shall:

(f) Refuse to obey the lawful orders of any air raid warden, civilian protection worker, or other person who is duly authorized to perform any act or function during the threat or imminence of danger or any emergency * * *

shall be adjudged a disorderly person and shall be punished by imprisonment in the workhouse, penitentiary or county jail for a term not exceeding one year or by a fine not exceeding one hundred seventy-five dollars ($175.00), or by both such fine and imprisonment, in the discretion of the court.'

On the present appeal, defendants argue * * * only during a time of actual or threatened emergency and that the order given to them was not a 'lawful order' within the meaning of the statute. In addition, they make four constitutional challenges to the validity of the statute: vagueness resulting in a denial of due process, improper delegation of legislative functions, and violation of the freedoms of speech and of religion.

A threshold question is whether or not the defendants' conduct on April 28 came within the wording of subsection (f). Specifically, defendants maintain that this subsection should be read with the 'during' phrase modifying the word 'orders' rather than the enumeration of civil defense personnel which immediately precedes it. The resultant meaning which defendants urge is that subsection (f) is operative only in time of actual or impending emergency.

In construing allegedly ambiguous sections of a statute, a reasonable interpretation should be made based on the legislative purpose as revealed by the composite thrust of the whole statute. Alexander v. New Jersey Power & Light Co., 21 N.J. 373, 378, 122 A.2d 339 (1956); 2 Sutherland, Statutory Construction (3d ed. 1943) § 4703, p. 336. Although penal statutes are to the strictly construed, legislative purpose should not be disregarded. State v. Edwards, 28 N.J. 292, 298, 146 A.2d 209 (1958). Applying these principles to the statute in question, we find that the Legislature has clearly stated that the 'purpose of this act is to provide for the health, safety and welfare of the people of the State of New Jersey and to aid in the Prevention of damage to and destruction of property during any emergency * * *.' N.J.S.A. App.A:9--33. (Emphasis added.) The themes of preparation and prevention recur in the structure of the Disaster Control Act. For Example, N.J.S.A. App.A:9--45(c) provides that the Governor is empowered to make necessary orders, rules and regulations

'concerning the Organization, recruiting, training, conduct, duties and powers of voluntary agencies, including air raid wardens, auxiliary police and firemen, demolition and clearance crews, fire watchers, road repair crews, rescue squads, medical crops, nurses' aides corps, decontamination squads, drivers' corps, messengers' corps, emergency food and housing corps, utility repair squads, and all other civilian protection forces exercising or performing any functions or duties in connection with the problems of local civilian defense or disaster control.' (Emphasis added.)

The interpretation which renders any part of a statute ineffective should be avoided. O'Rourke v. Bd. of Review, 24 N.J. 607, 610--611, 133 A.2d 333 (1957); State v. Sperry & Hutchinson Co., 23 N.J. 38, 46, 127 A.2d 169 (1956); Maplewood v Tannenhaus, 64 N.J.Super. 80, 86, 165 A.2d 300 (App.Div.1960), certif. denied 34 N.J. 325, 168 A.2d 691 (1961). Clearly, a program for the alleviation of the results of disaster derives its efficacy from organization and drill before the emergency arises.

The 1955 proclamation of the Governor, issued pursuant to this act and setting forth the Civil Defense and Disaster Control Plan, demonstrates the continuing concern with preparation:

'WHEREAS, disasters may occur at any time and are not limited to periods of international tension or war;

WHEREAS, predisaster planning and training is essential in the reduction of the effects of...