State v. Sutton

• Decision Date: 21 October 1912
• Citation: 84 A. 1057,83 N.J.L. 46
• Parties: STATE v. SUTTON.
• Court: New Jersey Supreme Court

84 A. 1057

83 N.J.L. 46

STATE

v. SUTTON.

Supreme Court of New Jersey.

Oct. 21, 1912.

Patrick Sutton was convicted before a magistrate of assault and battery, and he brings certiorari. Affirmed.

Argued before SWAYZE, J., under the statute.

William D. Edwards, of Jersey City (Edwards & Smith, of Jersey City, of counsel), for prosecutor.

Thomas G. Haight, of Jersey City (Warren Dixon, on the brief), for the State.

SWAYZE, J. The prosecutor was convicted of assault and battery upon a detective, a member of the police force of Jersey City, and justified upon the ground that the detective was lawfully ejected by the prosecutor acting as servant of the Public Service Railway Company for refusal to pay fare. This defense was met by the act of 1912 (P. L. p. 235) requiring street railways to grant free transportation of uniformed public of ficers while engaged in the performance of their public duties and of detectives whose duties require police duty to be performed without uniform. No question is made that the detective was a public officer and came within the provisions of the act. Its constitutional validity is questioned because it is said to take the railroad company's property without compensation. No other point was argued. Wilson v. United Traction Co., 72 App. Div. 233, 76 N. Y. Supp. 203, is a clear authority in favor of this contention. The state relies upon the decision of the Supreme Court of the United States in Interstate Consolidated Street Railway Co. v. Massachusetts, 207 U. S. 79, 28 Sup. Ct. 26, 52 L. Ed. 111, 12 Ann. Cas. 555. That case, however, involved the question of the right to require the transportation of school children at less than cost— half fare—and not the question of the right to require free transportation. The act now in question requires the free transportation of all public officers in uniform. It is not limited to members of the police force. But as the present case involves only the class last named, and so far as appears no other class of public officers will ever claim its privileges to the injury of the company, consideration of the constitutionality of the act ought to be limited to the exact case presented. Tyler v. Judges of the Court of Registration, 179 U. S. 405, 21 Sup. Ct. 206, 45 L. Ed. 252; Smiley v. Kansas, 196 U. S. 447, 25 Sup. Ct. 289, 49 L. Ed. 546; Grenada Lumber Co. v. Mississippi, 217 U. S. 433, 30 Sup. Ct. 535, 54 L. Ed. 826; Citizens' National Bank v. Kentucky, 217 U. S. 443, 30 Sup. Ct. 532, 54 L. Ed. 832.

All I need decide is whether the requirement of free transportation for members of the police force is within the power of the Legislature.

I ought to sustain the legislation, if I can, consistently with the constitutional provisions. Attorney General v. McGuinness, 78 N. J. Law, 346, 75 Atl. 455. Three considerations lead me to think I can, notwithstanding the decision by the Appellate Division in New York.

1. It is not strictly accurate to say that the company receives no compensation for carrying police officers if they pay no fare. It may well be that there is an indirect compensation in the protection afforded by the mere presence of the officer against pickpockets, or even against assaults on passengers by the company's own servants for which the company would be liable (Haver v. Central Railroad Co., 62 N. J. Law, 282, 41 Atl. 916, 43 L. R. A. 84, 72 Am. St Rep. 647), and in the help thus given to the company in the performance of its duty to its passengers. Indirect compensation of this character has been recognized as compensation within the meaning of the Constitution. Valentine v. Englewood, 76 N. J. Law, 509 518, 71 Atl. 344, 19 L. R. A. (N. S.) 262, 16 Ann. Cas. 731, which cites with approval the remark of Justice Devens in Miller v. Horton, 152 Mass. 540, 26 N. E. 100, 10 L. R. A. 116, 23 Am. St. Rep. 850.

2. The statute of 1912 may fairly be regarded as an exercise of the police power of the state. Policemen are frequently required to be on street cars in the execution of their duties to preserve the peace, to enforce ordinances, and to prevent or detect crime. It would be difficult to say that the mere...