State v. Wittenberg

• Decision Date: 08 November 1957
• Docket Number: No. A--624,A--624
• Citation: 50 N.J.Super. 74,141 A.2d 52
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Henry WITTENBERG and Herman Wittenberg, Defendants-Appellants. . Appellate Division
• Court: New Jersey Superior Court — Appellate Division

Page 74

50 N.J.Super. 74

141 A.2d 52

STATE of New Jersey, Plaintiff-Respondent, v. Henry WITTENBERG and Herman Wittenberg, Defendants-Appellants.

No. A--624.

Superior Court of New Jersey Appellate Division.

Argued Oct. 28, 1957.

Decided Nov. 8, 1957.

George Pellettieri, Trenton, argued the cause for defendants-appellants (Pellettieri & Rabstein, Trenton, and Italo M. Tarantola, Flemington, attorneys; Ruth Rabstein, Trenton, on the brief).

Wesley L. Lance, Clinton, argued the cause for plaintiff-respondent.

Before Judges CLAPP, JAYNE and HUGHES.

PER CURIAM.

Defendants were convicted in the Municipal Court of North Hunterdon of violating section IV of an ordinance of the Board of Health of the Township of Clinton. The section provides:

'IV. No garbage, offal or any decaying vegetable substance shall be brought into the Township of Clinton for the purpose of feeding the same to pigs.'

An appeal from the conviction was taken to the Hunterdon County Court and, after a hearing De novo before Judge Hall (the county judge having disqualified himself), defendants were again convicted. They appeal to us, charging that this section is unconstitutional and that the State failed to establish the essential elements of the offense beyond a reasonable doubt.

An action for a declaratory judgment had been brought by defendants and another person in 1953 against the township board of health to have the above-cited section declared void and unconstitutional. After a three-day trial, judgment was entered sustaining the ordinance. No appeal was taken from that judgment. The present action was commenced over a year after the entry of judgment. At the trial herein, counsel for the defendants stated to the County Court that he was not waiving any constitutional question and moreover that he would like to have it assumed that he was relying on such arguments relative to the constitutionality of the ordinance as were advanced in the preceding case. Now for the first time counsel for defendants spells out a number of questions going to the constitutionality of the ordinance, also a question as to whether the ordinance invades the statutory jurisdiction of the State Department of Health. None of these questions was apparently stated below in this action, and perhaps none of them, other than two of the constitutional questions, were raised in the prior action. The State seems to assume that the doctrine of Res judicata or collateral estoppel precludes consideration of all the constitutional questions, for it observes that the defendants in the instant case were two of the three plaintiffs in the declaratory action, the prosecutor of the present action was the defendant in that action, and the judgment there held section IV of the ordinance constitutional.

However, that doctrine raises a number of inquiries here--among them, these: would the State have the burden of establishing which of the present issues were resolved by the preceding action, and furthermore which of the issues so resolved were purely legal in nature (cf. Restatement of Judgments § 70), and which of them raised mixed questions of law and fact? Moreover, under that doctrine, is the civil judgment on the mixed questions of law and fact binding in this action which, defendants claim, is a quasi-criminal action? The last point can be clarified by an illustration. The constitutional questions raised here have to do largely with the matter of discrimination, for example, charging that the ordinance discriminates unreasonably between pig parmers in the township who use the garbage originating in the township (if there are pig farmers who do so) and those who desire to use garbage imported into the township. We were advised on the oral argument that this very question was litigated in the preceding action, and we understood that proofs were then adduced, establishing as a factual matter, that the garbage available within the the township was so inconsiderable in amount as not to affect the decision. Can it be said that the declaratory judgment, which perhaps determined that the Wittenbergs were unable to sustain their contention on this factual matter by a preponderance of the evidence, is binding in the present action wherein the State may perhaps have to prove (so defendants claim), beyond a reasonable doubt, that this garbage is so inconsiderable that the ordinance is non-discriminatory? As to the effect of a declaratory judgment in a criminal action, see Reed v. Littleton, 275 N.Y. 150, 9 N.E.2d 814, 817 (Ct.App.1937); Witschner v. City of Atchison, 154 Kan. 212, 117 P.2d 570, 572 (Sup.Ct.1941). Another inquiry is whether there has been any increase in the amount of garbage originating within the township since the prior action was commenced and if so, what would be the effect of the prior judgment in the face of such an increase. A further question presented by defendants is whether there is any unlawful discrimination between persons using garbage imported for the purpose of feeding pigs and persons using that imported for the purpose of feeding chickens, or for fertilizer or other purposes; or is no garbage imported for other purposes, or so little garbage that the ordinance can be sustained on the ground that it hits the evil where it is felt most.

This is not the case in which to deal with these various questions. It is elementary law that the ordinance is presumptively constitutional, and will not be declared discriminatory unless, after viewing it in the light of facts established by the proofs or of which we can take judicial notice, it appears to rest upon some manifestly unreasonable classification. Metropolitan Casualty Ins. Co. v. Brownell, 294 U.S. 580, 584, 55 S.Ct. 538, 79 L.Ed. 1070, 1073 (1935); Reingold v. Harper, 6 N.J. 182, 196, 78 A.2d 54 (1951). Here there are no proofs at all having any material bearing on the constitutional questions raised; and under the circumstances there is nothing, of which we can take judicial cognizance, that will serve to rebut the presumption.

Defendants urge furthermore that in prosecuting a violation of this ordinance, the State must make out its case on the basis of proof beyond a reasonable doubt. The County Court so held, and counsel for the State pass the question. However, the ordinance here provides only for a fine; it makes no provision for imprisonment. The courts have held that a proceeding upon such an ordinance is criminal in nature for procedural purposes. City of Absecon v. Vettese, 13 N.J. 581, 584, 100 A.2d 750 (1953); City of Newark v. Pulverman, 12 N.J. 105, 113--114, 95 A.2d 889 (1953). But is the question whether the law will require proof beyond a reasonable doubt, a procedural question? Or, as a matter of common law, should we now hold that a proceeding upon an ordinance imposing only a fine, is criminal in nature for nonprocedural purposes also? Or, again, are we to say that the fact that provision is made under N.J.S.A. 40:49--5 for imprisonment in default of the payment of any fine, renders this a quasi- criminal action? Borough of Ramsey v. Basil, 19 N.J.Misc. 555, 556, 21 A.2d 860 (Com.Pl.1941); Note, 'Public Torts,' 35 Harv.L.Rev. 462, 463, n. 9 (1922); cf. Note, 'Statutory Penalties--A Legal Hybrid,' 51 Harv.L.Rev. 1092, 1100 (1938).

This is not the case in which to decide such questions that incidentally are not even suggested by counsel. For we agree with Judge Hall that the proofs here establish beyond any reasonable doubt that the defendants violated the...