State v. Holland

CourtNew Jersey Superior Court – Appellate Division
Citation331 A.2d 626,132 N.J.Super. 17
PartiesSTATE of New Jersey (Village of South Orange), Plaintiff-Appellant, v. William HOLLAND, Defendant-Respondent.
Decision Date15 January 1975

Fox, Schackner, Neagle, Mastrangelo & Gassert, Newark, for plaintiff-appellant (Harlan E. Schackner, Newark, on the brief).

No appearance on behalf of defendant-respondent.



The defendant was found guilty after trial in the Municipal Court of South Orange of the charge that, in violation of Article 4, Section 15--25(b) of the Revised Ordinances of South Orange, between May 1 and June 1973 he permitted noise of such character, intensity and duration at 300 Valley Street, South Orange, as to disturb the comfort and repose of neighboring individuals. He was fined $100 plus $10 costs. He filed an appeal to the County Court, and upon the decision of that court that the ordinance was invalid, this appeal was filed by the Village.

Article 4 of the Revised Ordinance is entitled 'NOISE'. Section 15--25 provides as follows:

15--25. Creation of loud or unnecessary noise prohibited.

(a) The making, creation or permitting of any unreasonably loud, disturbing or unnecessary noise in the Village is hereby prohibited.

(b) The making, creating or permitting of any noise of such character, intensity or duration as to be detrimental to the life, health or welfare of any individual or which either steadily or intermittently annoys, disturbs, injures or endangers the comfort, repose, peace or safety of any individual is hereby prohibited.

The county court judge held that Section 15--25(b) was unconstitutional, apparently on the theory that it was so broad that it violated the due process clauses of the State and Federal Constitutions. Relying upon the fact that Section 15--25(a) of the ordinance contains the word 'unnecessary' in referring to the noises prohibited while Section 15--25(b) does not, he concluded:

I feel that Section (15--25(b)) is not constitutional, in that it bans noises of certain characters without any weighing of the necessity of them.

He further stated:

In the case before me I don't have the word 'unnecessary' used in Section (15--25(b)). I don't think that I can in propriety borrow a word from Section (15--25(a)) to lead it to Section (15--25(b)) to make an ordinance valid.

We are of the opinion that he erred and reverse.

It has long been established that municipalities in this State have the authority to adopt ordinances regulating or preventing loud, disturbing and unnecessary noises which are detrimental to the public health and welfare. N.J.S.A. 40:48--1, N.J.S.A. 40:48--2; Del Vecchio v. South Hackensack Township, 49 N.J.Super. 44, 138 A.2d 839 (App.Div.1958); Weil v. Ricord, 24 N.J.Eq. 169 (Ch.1873) and cases cited Infra. Of course, such ordinances must comply with certain standards. An ordinance such as this one, providing penalties for violations, is essentially criminal in nature and is invalid if it is so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application. The test is whether the ordinance adequately informs persons of the thing they are forbidden to do. See State v. New York Central R. Co., 37 N.J.Super. 42, 46--47, 116 A.2d 800 (App.Div.1955). However, there are certain well settled rules of interpretation and construction to aid in this determination which the court below failed to properly apply and follow.

In the first place, the ordinance is presumed to be valid and the burden is on the party challenging it to establish to the contrary. It is further presumed that the legislating authorities promulgating the ordinance acted with existing constitutional law in mind and intended the ordinance to function in a constitutional manner. The further presumption is that an ordinance will not be declared inoperative and unenforceable unless it is plainly in contravention of a constitutional mandate or provision. Even though it may be open to a construction which would render it unconstitutional or permit its unconstitutional application, it is the duty of a reviewing court to so construe the ordinance as to render it constitutional if it is reasonably susceptible to such construction. State v. Profaci, 56 N.J. 346, 266 A.2d 579 (1970); see State v. Zito, 54 N.J. 206, 218, 254 A.2d 769 (1969); Camarco v. City of Orange, 61 N.J. 463, 295 A.2d 353 (1972); State v. Rosenfeld, 62 N.J. 594, 303 A.2d 889 (1973); Del Vecchio v. South Hackensack Township, Supra.

In legislating with respect to disturbances of the peace and, specifically with respect to noise, it is recognized that the very subject matter renders specific and precise definitions of prohibited conduct difficult to formulate. Whether a given noise disturbs the public peace depends upon the circumstances of the particular case, and it is impractical to spell out rigid legislative criteria. It is therefore well established that in this regard, where the conduct intended to be prohibited is not fairly susceptible of definition in other than general language, there is no constitutional impediment to its use. The fact that there may be marginal cases in which it is difficult to determine the side of the line on which a particular fact situation falls is not a sufficient reason to hold the language too ambiguous to define a penal offense. State v. New York Central R. Co., Supra, 37 N.J.Super. at 47--48, 116 A.2d 800; State v. Smith, 46 N.J. 510, 218 A.2d 147 (1966) cert. den. 385 U.S. 838, 87 S.Ct. 85, 17 L.Ed.2d 71 (1966). In the latter case, where the Supreme Court sustained a statute which provided that 'Any person who by noisy or disorderly conduct disturbs or interferes with the quiet or good order of any place of assembly * * * is a disorderly person', Chief Justice Weintraub said:

'. . . defendant says the statute is void for vagueness because it does not spell out the degree of noise or the details of a disorder which will offend. Of course, the statute does not do so in specific terms, and it may be doubted that the ingenuity of man could meet that demand if the Constitution made it. But the Constitution does not insist upon the impossible. It asks only what the subject will reasonably permit, and hence if there is a public interest in need of protection, due process does not stand in the way merely because the subject defies minute prescription.' (at 518, 218 A.2d at 151).

In applying these principles, a reviewing judge should not give undue emphasis to the presence or absence of a single word. The import of the ordinance should be examined in the context of the entirety of its language. The title of the ordinance may be referred to in aid of its construction, and it has long been settled that the disjunctive 'or' in an ordinance or statute may be construed as the conjunctive 'and' if to do so is consistent with the legislative intent. See Baum v. Cooper, 131 N.J.L. 574, 575, 37 A.2d 830 (Sup.Ct.1944); Murphy v. Zink, 136 N.J.L. 235, 239, 54 A.2d 250 (Sup.Ct.1947) aff'd. 136 N.J.L. 635, 57 A.2d 388 (E. & A.1948). Moreover, as pointed out in State v. New York Central R. Co., Supra, 37 N.J.Super. at 48--49, 116 A.2d 800, the language in an ordinance prohibiting an activity tantamount to a common law nuisance may be defended for adequacy of definition of the offense on the basis of the common law construction and application of the language in the definition of such a nuisance. Indeed, when one examines the precedents, it is perfectly clear that the draftsman of this ordinance was not simply improvising on his own. He drew upon common law definitions and upon the text of other ordinances which have passed constitutional muster.

In confining his decision in the manner in which he did to a consideration of the narrow question of the effect as a matter of grammar of the presence of the single word 'unnecessary' in Section 15--25(a) and its absence in Section 15--25(b), the judge below lost sight of the above rules and ignored the pertinent precedents. There is not the slightest doubt that the governing authorities of South Orange in adopting these sections of this ordinance intended to prohibit noises which would disturb the peace and would constitute common law nuisances. Section 15--25(b), which defendant was found to have violated, contains two alternative provisions. It prohibits the making of any noise 'of such character, intensity or duration as to be detrimental to the life, health or welfare of any individual' or which 'annoys, disturbs, injures or endangers the comfort, repose, peace or safety of any individual'. The words used in the first alternative appear, among other places, in a municipal ordinance relating to noise which was held valid in Stoffel Seals Corporation v. Village of Tuckahoe, 206 Misc. 597, 134 N.Y.S.2d 114 (Sup.Ct.1954). The language of the second alternative is that of a classic definition of a nuisance which appears in the opinions in many decided cases and in many statutes throughout the country, see Hummel v. State, 69 Okl.Cr. 38, 99 P.2d 913, 919 (Cr.Ct.App.1940); State v. Paggett, 8 Wash. 579, 36 P. 487, 488 (Sup.Ct.1894); Colton v. South Dakota Central Land Co., 25 S.D. 309, 126 N.W. 507 (Sup.Ct.1910); 2A Matthews, Municipal Ordinances, par. 40.55, § 39 (1973), and appeared in the ordinance which was involved in Baum v. Cooper, Supra.

From the beginning our cases dealing with nuisances based upon noise have held that the matter is a relative one, requiring the weighing of the competing interests and rights of the parties in each case, and that to consistute a nuisance and a disturbance of the peace a noise must be an Unreasonable one in the circumstances or cause Material annoyance. The leading case, and the one most often cited, is Benton v. Kernan, 130 N.J.Eq. 193, 21 A.2d 755 (E. & A. 1941) which laid down the test that 'A noise...

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