State v. Murzda

• Decision Date: 31 January 1936
• Docket Number: No. 114.,114.
• Citation: 183 A. 305
• Parties: STATE v. MURZDA.
• Court: New Jersey Supreme Court

183 A. 305

STATE

v. MURZDA.

No. 114.

Court of Errors and Appeals of New Jersey.

Jan. 31, 1936.

Appeal from Supreme Court.

Vincent Murzda was convicted of possession of lottery slips pertaining to number lottery, and he appeals. From a judgment of the Supreme Court (178 A. 629, 13 N.J.Misc. 429) setting aside the conviction, the State appeals.

Judgment of Supreme Court reversed, and judgment of conviction affirmed, and cause remanded, with directions.

Sidney Goldmann, of Trenton (Edward J. O'Mara and Charles Hershenstein, Sp. Assts. to Atty. Gen., of counsel), for the State.

George Pellettieri, of Trenton, for appellee.

HEHER, Justice.

The state challenges the judgment of the Supreme Court, setting aside the conviction of respondent, in the First district police court of the city of Trenton, of the offense of possessing "number lottery slips pertaining to a number lottery," in violation of chapter 133 of the Laws of 1934. Pamph.L.1934, p. 364 (N.J.St.Annual 1934, § 59—48 et seq.).

The decisive question is whether the pertinent provision of the statute, subdivision (c), N.J.St.Annual 1934, § 59—48 (c), classifying as a disorderly person one "who shall have in his possession or custody any lottery slips, books or records pertaining to a lottery," is in contravention of article 4, section 7, subdivision 2, of the State Constitution, in terms following: "No lottery shall be authorized by the legislature or otherwise in this state, and no ticket in any lottery shall be bought or sold within this state, nor shall pool-selling, book-making or gambling of any kind be authorized or allowed within this state, nor shall any gambling device, practice or game of chance now prohibited by law be legalized, or the remedy, penalty or punishment now provided therefor be in any way diminished."

This provision was introduced into our organic law by an amendment adopted on September 27, 1897; and the inquiry is whether it served to incorporate therein the then existing chapter 293 of the Laws of 1895 (Pamph.L.1895, p. 593), denominating a misdemeanor the knowing possession of "any paper, document, slip or memorandum that shall pertain in any way to the business of lottery-policy, so-called," and so to deprive the Legislature of the authority to give the offense in question the lesser grade or classification, both in respect of its character and the punishment therefor.

We resolve this inquiry in the negative. Gaming was not a crime at common law. Wagers and like contracts were not objectionable per se. Gaming was unlawful only when it was tainted with fraud or constituted a nuisance or for some special reason ran counter to public policy. Flagg v. Baldwin, 38 N.J.Eq. 219, 48 Am.Rep. 308; 12 R.C.L. 708. It follows that the possession of lottery tickets and kindred articles associated with gaming was not a criminal offense at common law, and it is therefore a fit subject of prosecution and punishment in summary proceedings, unless such punitive legislative action is within the inhibition of the constitutional limitation under consideration. It falls into the category of what the common law denominated "minor" offenses—one that is not in its nature indictable, but is properly classable as disorderly conduct. It is essentially a police regulation designed to make effective the constitutional lottery interdiction. See State v. Rodgers, 91 N. J. Law, 212, 102 A. 433; State v. Anderson, 40 N.J.Law, 224; State v. Lakewood Market Co., 84 N.J.Law, 512, at page 524, 88 A. 194; Levine v. State, 110 N.J.Law, 467, 166 A. 300.

A state constitution, unlike the Federal Constitution, is not a grant but a limitation of legislative power. The state Legislature exercises a portion of the sovereign power residing in the people, subject to the limitations imposed by the Federal Constitution and its own organic law and, as well, those so fundamental in the social compact as to be necessarily implied; and, in the ascertainment of the scope and effect of such constitutional limitations, courts are enjoined, as in the construction of statutes, to collect the sense and meaning of the clause by comparing one part with another and by considering all the parts as a whole, and not one part as a separate and independent provision bearing no relation to the remainder.

This is the primary rule of exposition of constitutional provisions, as well as statutory enactments. The thing sought is the intent of the people in imposing the constitutional restraint; and, in the absence of ambiguity calling for permissible extrinsic aids, this is to be found in the instrument itself. And, in general, the established canons of statutory interpretation are the rules by means of which that intent is to be resolved. The purpose of judicial interpretation is the discovery of "the true sense of the form of words which are used, * * * taking all its parts into consideration, and, if fairly possible, giving them all effect." Orvil Tp. v. Borough of Woodcliff, 64 N.J.Law, 286, 45 A. 686, 687. Whether the subject-matter of such interpretative inquiry be an agreement between parties, a statute, or a constitution, the object is "the thought which it expresses." Newell v. People, 7 N.Y. 9, 97.

But, in the quest for the intention and meaning of a constitutional limitation, its essence and nature must ever be kept in mind. The primary design of a constitution is to put the fundamentals of government beyond the control of "the varying moods of public opinion," to borrow the language of Judge Cooley (Cooley's Constitutional Limitations [8th Ed.] p. 124); and it is therefore to be presumed that the words employed have been carefully measured and weighed to convey a certain and definite meaning, with as little as possible left to implication. Wolcott v. Wigton, 7 Ind. 44; People v. Purdy, 2 Hill [N.Y.] 31; Cooky's Constitutional Limitations, p. 128. A constitutional prohibition against the exercise of a particular power is in the nature of an exception; and it is the settled rule of judicial policy in this jurisdiction that a legislative enactment will not be declared void unless its repugnancy to the Constitution is so manifest as to leave no room for reasonable doubt. The constitutional limitation upon the exercise of legislative power must be clear and imperative. This is a well-defined limitation ingrafted upon the function assumed by the courts, federal and state, to nullify a statute for unconstitutionality. State Board of Milk Control v. Newark Milk Co., 118 N.J.Eq. 504, 179 A. 116; Attorney General v. McGuinness, 78 N.J.Law, 346, 369, 75 A. 455; Sexton v. Newark District Tel. Co., 84 N. J.Law, 85, 86 A. 451; affirmed 86 N.J.Law, 701, 91 A. 1070; Bott v. Secretary of State, 63 N.J.Law, 289, 302, 43 A. 744, 881, 45 L.R.A. 251. See, also, Marbury v. Madison, 1 Cranch, 137, 2 L.Ed. 60. There is to be no forced or unnatural construction. Such constitutional limitation upon the general legislative power "is to be established and defined by words that are found written in that instrument, and not by reference to some spirit that is supposed to pervade it or to underlie it, or to overshadow the purposes and provisions expressed in its written language." State v. De Lorenzo, 81 N.J.Law, 613, 79 A. 839, Ann.Cas. 1912D, 329. See, also, Sturges v. Crowninshield, 4 Wheat. 122, 4 L.Ed. 529.

Coming now to the limitation under review, we perceive therein no intention to impart a constitutional basis and character to the statutory crime of possession of lottery tickets or slips or documents relating to a lottery or other form of gaming. We find no purpose to put such possession as a substantive offense beyond legislative control. The amendment explicitly deals with the conduct of lotteries and games within the unlawful category, and the sale and purchase of lottery tickets; but it makes no provision respecting the possession of lottery tickets or slips, or books, records, or memoranda pertaining to that particular form of gaming. It was designed...