State v. Corbisiero
Decision Date | 20 March 1961 |
Docket Number | No. 110,110 |
Citation | 170 A.2d 74,67 N.J.Super. 170 |
Parties | STATE of New Jersey, Plaintiff-Respondent, v. Salvatore CORBISIERO, Defendant-Appellant. |
Court | New Jersey County Court |
Meth, Bloom & Wood, Newark, for defendant-appellant (Theodore Meth, Newark, and Hayden C Covington, Brooklyn, N.Y., appearing).
Leo S. Sullivan, New Jersey, for the State.
ROSEN, J.C.C.
This is an appeal by the defendant from judgments of conviction in the Municipal Court of the City of Bayonne. The trial proceedings were taken stenographically, and therefore the appeal is heard De novo on the record so made. R.R. 3:10--10(a).
The original complaints in the municipal court charge this defendant with violating sections 4 and 20 of an ordinance of the Hudson County Park Commission (Commission). The complaints were amended to delete reference to the Disorderly Persons Act.
Under R.R. 3:10--10, an appeal to the County Court from a conviction by a municipal court results in a trial De novo before the County Court. The trial De novo nullifies the proceedings before the municipal court, except the initiating proceedings of complaint and warrant. State v. Joas, 34 N.J. 179, 189, 168 A.2d 27 (1961). The appeal acts as a waiver of all defects in the record. State v. Menke, 25 N.J. 66, 135 A.2d 180 (1957); R.R. 3:10--10(a).
The pertinent sections of the ordinance adopted by the Commission on December 7, 1953 are as follows:
Defendant was charged, by two separate complaints, with the commission of two separate offenses under the ordinance. The first complaint charges him with violation of the ordinance on July 24, 1960, in that he used a loudspeaker at a public religious meeting in a county park, contrary to the terms of a written permit issued by the Commission which prohibited the use of sound equipment. The meeting was held with permission of the Commission pursuant to sections 4 and 20 of the ordinance. The second complaint charged defendant with the offense of holding a meeting in the same county park on July 31, 1960, after the Commission revoked the original permit because of the use of the sound equipment at the meeting held in the park on July 24, 1960, 'in violation of the terms on which the permit was issued and in accordance with the provisions of Section 20 of the Ordinance.'
Defendant is a member of Jehovah's Witnesses. It is admitted that application was made by the Bayonne Congregation of Jehovah's Witnesses to the Commission for permission to hold religious meetings in the county park. The Commission authorized meetings for July 3, 10, 24 and 31, 1960. The letter of authorization specifically provided that 'sound equipment is prohibited by the Rules and Regulations of the Hudson County Park Commission.' In response to an inquiry relative to the Commission's refusal to permit the use of sound equipment, the applicant was referred to sections 4 and 20 of the ordinance. The Commission insisted that the use of the park under the permit be 'in strict accordance with the terms and conditions' of the permit. The meeting was held on July 24, 1960 and it is uncontradicted that the defendant was arrested 'purely because he was using a sound device'; he was not disturbing other people using the park. On July 28, 1960 the Commission revoked its previous authorization to use the park on July 31, 1960 because of use of sound equipment at the previous meeting. The magistrate held that the defendant should have resorted to the courts for relief by way of injunction or Mandamus to compel the Commission to permit the use of sound equipment, and having failed to do so, cannot complain about the actions of the Commission. Defendant was found guilty on both charges.
Defendant challenges the validity of the ordinance upon which the convictions were based, alleging the unconstitutionality of the ordinance in that its provisions grant unlimited discretion to the issuing authority, and therefore violates the rights of freedom of speech, assembly and worship, contrary to the provisions of the First and Fourteenth Amendments to the United States Constitution.
It has long been the practice for a person charged with violation of an ordinance to object, in a penal action thereon, to the validity of the ordinance, and in that mode place before the court the limited question whether the ordinance is not a nullity in that particular instance. It is not necessary to first attack the claimed unlawful act in a Mandamus proceeding to compel the issuance of a license. Lipkin v. Duffy, 119 N.J.L. 366, 196 A. 434 (E. & A. 1937).
The Commission is governed by the provisions of Revised Statutes of New Jersey, Title 40, chapter 37, sections 96 to 174, N.J.S.A. The statute provides, Inter alia, as follows:
* * *'
'147--It shall be lawful to be present at and take part in, in county parks * * * on any day in the week, * * * sports, plays, games, recreations, concerts and amusements, to the extent and in such manner as the county park commission having control of the parks, shall designate; and such commission may make all necessary rules and regulations controlling and governing said sports, plays, games, recreations, concerts and amusements, and prohibiting them in such parks or parts of parks in which said board of park commissioners may deem it unwise to permit the same * * *.'
'152--The commission may:
Pursuant to the said statutory authority, the Commission adopted the ordinance for the protection, care, government and use of the parks under its control. The ordinance is penal in character. It is rudimentary that in a summary proceeding on a penal ordinance nothing is presumed or intended in favor of the complaint and conviction thereon. The Commission was necessarily obliged to sustain its power to pass the 'rules and regulations' (ordinance) allegedly violated, and to prove the charges made. Studerus Oil Co., Inc. v. Jersey City, 128 N.J.L. 286, 289, 25 A.2d 502 (Sup.Ct.1942).
The Legislature has delegated to Park Commission the power to regulate, control, and govern its parks in the interests of the public's general social well-being. Hill v. Borough of Collingswood, 9 N.J. 369, 375, 376, 88 A.2d 506 (1952). Justice Wachenfeld, speaking for a unanimous Supreme Court in Cammarata v. Essex County Park Comm., 26 N.J. 404, 410, 140 A.2d 397, 400 (1958), said:
(Emphasis supplied.)
Freedom of religious belief is a constitutional right. The rights of free speech and press, of assembly and of worship, are fundamental, but they are not absolute. Mr. Justice Cardozo, in discussing the freedoms guaranteed by the United States Constitution, said:
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