State v. W. U. Tel. Co.

• Decision Date: 01 June 1953
• Docket Number: No. A--126,A--126
• Citation: 12 N.J. 468,97 A.2d 480
• Parties: STATE v. WESTERN UNION TEL. CO., et al.
• Court: New Jersey Supreme Court

Page 468

12 N.J. 468

97 A.2d 480

STATE v. WESTERN UNION TEL. CO., et al.

No. A--126.

Supreme Court of New Jersey.

Argued April 27, 1953.

Decided June 1, 1953.

Thomas J. Brogan, Jersey City, argued the cause for appellants (Smith, James & Mathias, Jersey City, attorneys; John H. Waters (of the New York Bar), gen. atty., William G. H. Acheson (of the New York Bar), asst. gen. atty., Western Union Tel. Co., New York City; Joseph Weintraub, Newark, and Adrian M. Foley, Jr., Jersey City, on the brief).

Joseph A. Murphy, Asst. Deputy Atty. Gen., argued the cause for the State (Theodore D. Parsons, Atty. Gen., and Simon L. Fisch, Deputy Atty. Gen., attorneys; Edward J. McCardell, Jr., Deputy Atty. Gen., on the brief).

The opinion of the court was delivered by

WACHENFELD, J.

The Western Union Telegraph Company and Frake, its manager, were indicted and convicted of operating a common-law disorderly house in Cumberland County. The indictment arose out of the sending by the defendants of messages from Bridgeton to one Donaldson in Passaic County and to C.J. Rich & Company in Illinois and the payment in Bridgeton of money wired there by Donaldson and Rich & Company. The messages out of Bridgeton related to wagers on horse races and the money orders transmitted sums of money to the addressees for that purpose. The money orders back to Bridgeton represented the winnings less the charges made.

The State proceeded upon the theory that a disorderly house was proved by showing the defendants habitually received and transmitted at the Bridgeton office bets on horse races through the medium of telegraphic money orders and messages and payment at the office of the winnings on the bets less telegraphic charges.

The prosecutor of the county testified he initiated an investigation concerning the operations of the defendant company and in June 1948, at his direction, a State Police detective went to the Bridgeton office, prepared a horse bet on a regular telegraphic blank addressed to J. W. Donaldson, State of New Jersey. When he handed the bet to an employee, she altered the form of the message, telling the detective it would be cheaper and it would be understood in the revised cryptic form since that was the way they sent all such business. The horse on which the bet was made won and the detective returned the next day to collect his winnings.

As a result, the prosecutor sent for the manager and advised him the company had been taking horse bets for quite some time and it amounted to ordinary bookmaking, in violation of the law. Shortly thereafter, at a conference of the various representatives of the company, the prosecutor testified he told them they were carrying on an illegal business at the Bridgeton office which amounted to bookmaking.

One of the company's agents argued that the company was required to take these telegrams, and a discussion ensued. The prosecutor, according to his version, finally warned them that as far as he was concerned they were engaged in illegal activities, insisted it stop, and said he would hold them responsible.

The company's representatives, however, testified the prosecutor declined to specify or discuss the illegality of the transaction, saying he did not know what statute was violated and therefore could not cite any, but he would write to the Attorney General for an opinion and it would probably take a few months for a reply.

There was also testimony that the Western Union could continue its existing practices until the prosecutor received an opinion from the Attorney General, and the suggestion was made that the company have an opportunity to confer further before any action was taken by the State if it turned out the Attorney General's opinion was adverse to Western Union's position.

Following this conference and the warning alleged by the prosecutor, individuals continued to place bets at the same office on many occasions, and in the afternoon on one of the days on which these transactions occurred, the Deputy Attorney General and a lieutenant of the State Police entered with search warrants. They seized and impounded those messages referring to horse race bets. This occurred seven months after the conference above referred to.

The acts constituting the unlawful practice which occurred at the Bridgeton office of the Western Union were described by a great many witnesses. In fact, the course of conduct ascribed to it seems not to be denied. One witness testified she went there to bet on horses and told the girl behind the counter: 'I want to play horses--bet on the horses.' Another one identified 59 telegrams as her bets and pay-offs, while a third identified 99 bets and pay-off messages, including 'parlays and round robins.'

A man credited his knowledge as to the way and manner of betting to the information received at the defendants' Bridgeton office showing him how to express his bets on telegraphic forms, including parlays and daily double bets. He identified 91 telegraphic messages as his, while another man who frequently bet several hundred dollars on a race identified 70 telegrams representing some of his transactions. Another witness played every day, many times placing two or three bets in one day. He identified 106 telegrams expressing his views on the horses. Another daily player identified 261 telegrams as his contribution.

Often there would be 20 to 25 people in the office sending telegrams to Donaldson. Racing forms were lying around the office, and the employees of the defendant would help customers in sending out their betting messages and money orders, advising them how it should be done. Approximately 8,000 money orders issued out of the Bridgeton office to Donaldson and Rich & Company during the six months from November 1949 to the raid in April 1950. They showed a total sum bet of $103,466.98, with total telegraphic charges of $11,119.51.

The State's case was abundantly supported by many witnesses, and much of the testimony was not denied. It indicated betting was habitually carried on with the conscious participation of the company in the illegal transactions and its facilities were employed in large-scale gaming business which was financially profitable.

The investigation resulted in the return by the grand jury of five indictments, only one of which we are concerned with here, to wit, the keeping of a common-law disorderly house.

The defendants were also indicted for a violation of R.S. 2:135--3, aiding and abetting bookmakers and keeping a statutory disorderly house; violation of R.S. 2:119--1, conspiring to make book; violation of R.S. 2:119--1 by a like conspiracy; and violation of R.S. 2:171--3, knowingly carrying messages in aid of an illegal purpose.

Western Union contended the theory adopted by the State would constitute a direct and prohibitive burden upon interstate commerce. It proved it was the sole telegraphic system serving the entire country and had been in existence for 100 years, transmitting messages since 1851 and money orders since 1867; it had 15 reperforator switching centers in the United States through which all messages were automatically relayed. The Philadelphia center handled an area which included New Jersey, and all messages originating in New Jersey for delivery anywhere within or outside of the State passed on wire from the transmitting office to Philadelphia, whence they were routed by a push-button system to offices of destination.

Western Union offered proof tending to show that the imposition of the responsibility attempted to be placed upon it would frustrate the service because it could not find employees with necessary legal knowledge to apply all the laws of the State relating to criminal and unlawful activities. Even if this were possible, the time consumed in performing this function would multiply the number of employees and agents needed, and the necessary element of speed would be destroyed in analyzing the messages, and other difficulties would occur.

It sought to demonstrate the difference between its ease of compliance where a state law definitely and specifically prohibits taking betting messages as opposed to compliance here, where it was contended the company would be required to make a decision construing the applicable statutes on every transaction indulged in.

The jury returned a verdict of guilty and the defendants appealed, the cause being certified here on our own motion.

I.

The appellants argue that the concept of a disorderly house as applied in this case violates the Constitution of the State and of the United States. They approach this subject under the following subdivisions: (a) freedoms of speech and press; (b) conflict with commerce clause; and (c) denial of due process of law.

a.

The State charged the Western Union's Bridgeton office with being a disorderly house because it habitually accepted and transmitted and profited from the sending of betting messages in violation of the laws of the State. The company suggests that this concept would not be limited to violation of gambling laws but would necessarily apply as well if the messages accomplished a violation by the sender or recipient of any law which denounces any particular conduct as criminal or civilly unlawful.

Western Union in its brief reasons: '* * * to avoid the criminal liability here sought to be imposed Western Union would have to analyze the meaning of every telegram, determine its legality and the intentions of the parties to the communication. Clearly this would be censorship.' It asserts: 'Under the present point we are concerned with the invasion of the basic freedoms which this concept would accomplish. * * * We contend that the challenged concept operates to impose a Previous restraint upon the exercise of the freedom of speech and press.' And further: 'In dealing with the issue of censorship with respect to United States mail our Federal courts have expressed the repugnance of censorship to our...