State v. Larson

• Decision Date: 05 February 1932
• Citation: 160 A. 556
• Parties: STATE v. LARSON.
• Court: New Jersey Supreme Court

160 A. 556

STATE

v. LARSON.

Court of Oyer and Terminer of New Jersey. Essex County.

Feb. 5, 1932.

Oscar Arnold Larson was indicted for violation of the rules and regulations of the State Aviation Commission, and he moves to quash the indictment.

Order in accordance with opinion.

Joseph L. Smith, Prosecutor, and Joseph E. Conlon, both of Newark, for the State.

Biro & Strell, of Newark* for defendant.

HARTSHORNE, J.

This defendant was indicted for violation of the rules and regulations of the state aviation commission. He moves to quash, on the ground, among others, that the State Aviation Act, P. L. 1931, c. 190, p. 475 (Comp. St Supp. § **15—50 et seq.), creating the state aviation commission and purporting to control the entire conduct of intrastate aviation, is unconstitutional.

The other objections may be shortly disposed of. The objection that the indictment is insufficient for uncertainty and similar technical defects may be dismissed since, under well-settled practice, a bill of particulars may be demanded. The objection that the state of New Jersey is improperly a party to the indictment is based upon the provision in the act, § 9 (Comp. St. Supp. § **15— 58), that "prosecution therefor [a violation of the Act] may be instituted in the name of the commission or the director either by the Attorney General or by the Prosecutor of the pleas in and for the county in which the offense is alleged to have been committed when so directed by the Attorney General." The indictment in question does not accord with the above method of procedure. But the above method is permissive, not mandatory. Its obvious purpose is to give to the state aviation commission, as the body most interested in the enforcement of the act, the power to enforce it on its own initiative. This in no way prevents the use of the usual methods of enforcement through grand jury proceedings. The indictment in question is properly found in the usual form.

We now pass to the important objection leveled at the indictment; i. e., the unconstitutionality of the State Aviation Act.

As above stated, the indictment charges the violation of the rules and regulations of the commission. In section 1 of the act (Comp. St. Supp. § **15—50) its "Purpose" is set forth. Assuming for the sake of argument that this is more than a mere preamble, this purpose is stated to be: (1) "For the regulation of aircraft in and over this State;" (2) "to require that [such] aircraft * * * shall conform with respect to design, construction and air-worthiness to the standards prescribed by the United States government;" and (3) "to require the licensing of aircraft and airmen." Clearly such provisions fix no standard whatever, even of the most general nature, either for the regulation of aircraft or the licensing of aircraft or airmen. They state a standard only for the physical character of aircraft, such standard to be that fixed by the federal government.

The only further provisions in that regard are those found in section 7 of the act (Comp. St. Supp. § **15—56), which provides that the commission "may establish and revise from time to time air traffic rules for the navigation, protection and identification of aircraft which shall conform to and coincide with, insofar as is practicable, the [Federal] air commerce act of one thousand nine hundred and twenty-six and all acts amendatory thereof and supplementary thereto and not inconsistent with the provisions of this act. It may establish standards of air-worthiness for aircraft," to accord with such federal act "It may encourage and effect, insofar as is practicable, uniform field rules for airports." By section 9 of the act it is provided that "any person who violates any of the provisions of this act or any rule or regulation thereunder shall be guilty of a misdemeanor."

It is clear from all the above provisions that as to the "navigation, protection and identification of aircraft," and their "air-worthiness," the only standard fixed by the Legislature is that of the federal act (49 USCA § 171 et seq.), and that no standard of any nature whatever is fixed for the "uniform field rules for airports." As to these latter, the act itself would support any uniform regulation whatever, no matter how absurd or unjust, which the commission might adopt in their sole discretion.

The substantial question therefore is whether the New Jersey Legislature is permitted by the Constitution of this state and that of the United States to convict a person of a crime, when it has fixed no standard of conduct to be conformed to by the citizen, but has left that standard to be fixed by the regulations of a subordinate administrative authority, either in its untrammeled discretion, or to conform substantially to the legislation of another sovereignty, such legislation being referred to in the act, but not incorporated therein.

Our form of government, both federal and state, is based upon the fundamental concept of the separation of the powers, legislative, executive, and judicial. Each of these three branches can exercise its own power only. This is expressly set forth in our state Constitution, which provides that "the legislative power shall be vested in a senate and general assembly." Article 4, § 1, par. 1. The only exception to this is in the case of municipal corporations, which from time immemorial have been authorized to exercise legislative functions at common law, such cmmonlaw rule and historical fact being deemed a condition implied in the Constitution. Otherwise, however, no legislative function can be delegated by our Senate and General Assembly.

But, while the establishment of principles or standards of conduct is the essential function of the lawmaking body, which cannot be delegated, the application of those principles or standards to facts as they arise, and the determination as to whether or not those facts exist, is a function of law...