Halsted v. State , 41 N.J.L. 552 ( 1879 )

The opinion of the court was delivered by

Beasley, Chief Justice.

It appears by the record in this case that at.a meeting of the board of freeholders of the county of Hudson, on the 27th of June, 1876, a resolution was adopted fixing the tax to be raised for county purposes for the fiscal year commencing on the 1st of December, 1876, at $600,000; and that afterwards, at a meeting on the 14th of December, 1876, a resolution was passed, directing the purchase of a certain site for a court-house, at a price amounting in the aggregate to $225,000; and that, in payment of said lauds, a bond or bonds of the county of Hudson should be issued, payable out of the amount to be appropriated and limited for the expense of the next fiscal year, being the fiscal year commencing on the 1st day of December, 1877, such bonds to run one year and to bear interest at the rate of seven per cent, per annum. The indictment further shows that a conveyance for the land above mentioned was duly made, and the bonds of the county conformably issued in payment therefor.

It is insisted by the counsel of the defendant, that admitting that such defendant was a member of the board of freeholders, it does not appear from these facts that he committed an indictable offence. ' This contention puts in question the meaning of the supplement to the crimes act, approved February 7th, 1876.

I have found it somewhat difficult to realize that-.any disinterested .person, upon a careful reading of that statute, can have any doubt with respect to the legislative purpose as expressed in its language. By the general law the board of freeholders ascertain, before a certain date, the amount of tax necessary for county purposes for such year, and the manifest purpose of this supplement was to require the freeholders to make all payments during the year out of that fund, or out of moneys in hand, and to contract no obligations that were not to be so paid. Unless the act means this it has no sensible meaning. The provision, as a practical refutation, becomes absurd, if we give to it a signification that will support this defence, because although it is intended as a circumscription of official authority, it has no force whatever in that direction, for these boards, upon such a theory, can contract what debts they please, provided they make such debts payable out of a future assessment. No uncertainty in this respect has been perceived by me. The offence is committed whenever one of these boards, or any member of any one of them, “shall disburse, order, or vote for the disbursement of public moneys in excess of the appropriation respectively, to any such board or committee, or shall incur obligations in excess of the appropriation and limit of expenditure provided by law for the purposes respectively of any such board or committee,” &c. Here, then, is a clear prohibition against incurring any obligations in excess of “ the appropriation and limit of expenditure.” In this case the board’s appropriation was $600,000, and the freeholders incurred this debt of $225,000 in addition to such appropriation, because they provided, in express terms, that it should not come out of such fund. By the terms of the bonds issued by the board this additional sum was not to fall due during the current fiscal year; and by the express terms of the resolution the debt so evidenced was to be paid, not out of the $600,000 in their hands, but out of the levy of taxes to be made the next fiscal year. By such an arrangement the whole $600,000 were left in their hands, untouched and unaffected by this obligation; aud such fund, if left unused by them, and although it should have been passed by them to their successors in office, was not to be devoted to the payment of the debt in question. This regulation is so plain that it is difficult to comprehend how any person, not under a misleading bias, can fail to understand that all attempts, no matter by what device, to carry over by a new engagement debts falling due in the current year, or debts created during such year, to a subsequent year for payment, is in direct conflict both with its terms and spirit. The system clearly defined here is, that a certain fund is provided for all the expenses and disbursements and obligations to be incurred during the current year, and that every obligation or debt incurred during such year is to be paid out of the fund so provided, and that all debts incurred which are to be paid out of a fund to be raised in the future is in excess, or what is the same thing, is in transgression of the limit of expenditure established by law. I entirely concur in the view taken on this subject in the Supreme Court, aud am of opinion that this assignment of errors cannot avail the defendant.

Next it is urged that the defendant was not, in a legal sense, a member of the board of freeholders, and therefore he is not within the compass of this statutory provision. The argument is that the director of the board is not a member of the board, the reasons being that he has no vote, except when there is a tie, that his salary is greater, and that there are sundry expressions in the act that seem to indicate that his is a separate and independent office. I shall not attempt to criticise these details, for it would involve a discussion of minutiae which I cannot consider of much importance, and which I think are entitled to no weight at all in the presence of the provision of this law, which, in set terms, describes the constitution of this board, and which clearly makes the director a part of it. The section referred to provides that this board of chosen freeholders “shall consist of two chosen freeholders from each assembly district, and also in addition thereto a director of said board to be elected and chosen at large for two years, from the county of Hudson. * * * The director at large * * * shall be the presiding officer of said board,” shall appoint all committees, “ but shall have no vote in said board except in case of a tie. * * * Every resolution of the board * * * shall, before it takes effect, be approved in ■writing by said director.” In a legal sense I regard all persons, no matter what their denominations may be, who are necessary constituents of the board, members of it, and the statute in express terms declares that the board shall consist of a director and of the other chosen freeholders.

And in this connection I will dispose of the kindred objection that this defendant did not either “ order or vote for” the contracting of this obligation, with the remark that by signing the resolution £o incur it, and the bonds by which it was carried into execution, I think, within the meaning of the act, he did officially participate in the incurring of this obligation.

On these points I have found no difficulty. ■ ■

The next objection relates to the overruling at the trial of certain exculpatory facts.

When the state had closed, the defence offered to show that the defendant, in aiding in the passage and effectuation of the resolution which I have pronounced to be illegal, did so under the advice of counsel, and in good faith, and from pure and honest motives, and that he therein exercised due care and caution. The arguments upon this interesting topic, contained in the briefs of the respective counsel, marked, as such briefs are, by acute reasoning and copious learning, have been of much assistance in the examination of the subject.

On the part of the defence, it is strongly ui’ged that the -defendant was not a volunteer in this affair; that'he was bound, under the obligations of public duty, to decide and act in the premises, and that if he acted with an honest purpose, and with due circumspection, to hold him guilty under this law would be contrary to those essential principles of justice and public policy on which all law is founded. To enforce this view, we are referred to those general maxims of criminal law which have been so often repeated by judges, and which, are so well summarized by Mr. Bishop in the first volume of his work on Criminal Law, section two hundred and five, to the effect, “ that in no one thing does criminal jurisprudence differ more from the civil than in the rule as to intent. Crime proceeds only from a criminal mind.” Looked at in this light, and in this general aspect, the position of the defence is well calculated to strike the mind with great force, for we have there as the elements of the juncture that the defendant was honest, that he acted with caution, and that he was compelled to act, so that his violation of law was an unavoidable resultant from a discharge of duty, in its. best form. It is, therefore, urged that the result is that the rule of law that will convert the defendant into a criminal is a rule that must inevitably, on many occasions, lead to the inculpation, by force of the criminal jaw, of this class of officials if they discharge their duty faithfully.

But it will be observed that the principle that infuses life into this line of argument is too broad to be assented to in its full extent. Nothing in law is more incontestable than that, with respect to statutory offences, the maxim that crime proceeds only from a criminal mind does not universally apply. The cases are almost without number that vouch for this. The defendant in this case pleads that he was ignorant,of the law as applied to the facts involved in his conduct. But it has been many times decided, and indeed is the admitted general rule, that ignorance of the law is no defence against a criminal charge. Mr. Wharton, in an article published in the Albany Law Journal on February 5th, 1879, page thirty-four, says “ that ignorance of law is no defence is generally admitted.”

Mr. Broom, in his Legal Maxims, thus clearly delineates the legal doctrine: “ It is,” says Lord Kenyon, “ a principle of natural justice, and of our law, that the intent and the act must both concur to constitute the crime.” “ A man,” as remarked by Earle, Chief Justice, “ cannot be said to be guilty of a delioit, unless, to some extent, his mind goes with the act. And the first observation which suggests itself in limitation of the principle thus enunciated, is that whenever the law positively forbids a thing to be done, it becomes thereupon ipso facto illegal to do it wilfully, or, in some cases, even ignorantly, or, maybe, to effect an ulterior laudable object, and consequently the doing of it may form the subject matter of an indictment, or other legal proceedings simpliciter, and without the addition of any corrupt motive.”

In the case of State v. Goodenow, 65 Me. 30, it. was decided, on an indictment for adultery, that the defendant could not defend on the plea that she believed that she had been legally divorced. And, in like manner, it is easy to cite cases establishing the doctrine beyond dispute or cavil, that in many cases an honest mistake in regard to a state of facts will, not exculpate when the prohibition of a statute has been violated. As an illustration, I will refer to Reg. v. Woodrow, 15 M. & W. 404, which was an information against a retailer of tobacco, for having in his possession adulterated tobacco; and it was held that he was punishable, although it was shown that he had purchased it as genuine, and had no knowledge or cause to suspect that it was not so. Another example is presented in Commonwealth v. Mash, 7 Metc. 472, which was the case of a woman marrying after her husband had been absent for several years, in the honest belief that he was dead; such defence being disallowed. But on this head it is not necessary to multiply authorities. A crowd of them are collected in the brief of the attorney-general, and in fact it is admitted by the counsel of the defence that in a large number of instances of statutory offences, the crime may be committed in the absence of any wrongful intent. Nor even with respect to the common law is it true that a guilty purpose, or the possession of the knowledge requisite to make the mind guilty with respect to a particular act, is an essential part of criminality. It is settled in that system by indubitable authority, that a statute may be violated by a person so soon after its passage that the fact of its enactment could not by possibility have come to his knowledge. Judge Story, in one of his decisions, recognizes this as an established principle of the common law, and applies it to the issue before him.

But, on the other hand, it is equally undeniable that in some cases, when the prohibition in a statute against doing a certain act, or series of acts, is couched in general terms, courts have, to use the language of Lord Cockburn, imported into the statute a proviso that the denoted act shall be done fróm a guilty mind. Such was the case of Rider v. Wood, 2 E. & E. 338, which was an information against the defendant for unlawfully absenting himself from the service of his employer during the term of his contract of service, contrary to a statute, the proceeding being founded on a law which enacted that if any servant, &c., “ shall contract with any person or persons to serve him, &c., for any time or times whatsoever, and having entered into such service, shall absent himself or herself from his or her service before the term of his or her contract shall be completed, the person so offending may be committed,” &c. The defendant having absented himself from the service contracted for by him, under the honest belief that a notice that he had served had legally dissolved the contract, the court held that he could not be convicted if he had given the notice in good faith, arad believed in its legal efficacy, although in point of law such notice was a nullity. This is manifestly a clear case in which the court held that the culprit must have had a guilty mind, although such ruling had the effect of qualifying the general statutory language. There are other cases in the same line cited in the briefs.

Now these two classes of cases, diverging as they do, and seemingly standing apart from each other, may at first view appear to be irreconcilable in point of principle; but, nevertheless, such is not the case. They all rest upon one common ground, and that ground is the legal rules of statutory construction. None of them can legitimately have any other basis. They are not the products of any of the general maxims of civil or natural law. On the contrary, each of this set of cases is, or should have been, the result of the judicial ascertainment of the mind of the legislature in the given instance. In such investigations the dictates of natural justice, such as that a guilty mind is an essential element of crime, cannot be the ground of decision, but are merely circumstances of weight, 'to have their effect in the effort to discover the legislative purpose. As there is an undoubted competency in the law maker to declare an act criminal, irrespective-of the knowledge or motive of the doer of such act, there can be, of necessity, no judicial authority having the power to-require, in the enforcement of the law, such knowledge or motive to be shown. In such instances the entire function of the court is to find out the intention of the legislature, and to enforce the law in absolute conformity to such intention. And in looking over -the decided cases on the subject it will be found, that in the considered adjudications, this inquiry has been the judicial guide. And naturally, in such an inquiry,, the decisions have fallen into two classes, because there have-been two cardinal considerations of directly opposite tendency, influencing the minds of judges; the one being the injustice of punishing unconscious violations of law, and the other the necessity, in view of public utility, of punishing, at times, some of that very class of offences. All the cases that are pertinent that are relied upon by the counsel of the defendant in this case, are decisions that have been produced mainly under the influence of the former of these two classes of considerations, but they are all, nevertheless, mere constructions of the respective statutory enactments. These citations are made with a view to show that as a general rule the courts will require a corrupt motive to be shown when the statutory denunciation against doing an act contains no such requisition. But the authorities vouched do not sustain that large proposition ; they simply evince that in those special instances in construing the respective enactments, a legislative purpose was-perceived of requiring, to constitute the offence, a mind conscious at the time of wrong doing. The decisions thus adduced are not many; some of them are not apposite to the question; and none of them can be said to sustain the proposition that in cases where a statute in general terms prohibits the doing of a particular act-, the court will interpolate into such statute-the requirement of a corrupt motive as an ingredient of the offence, on the sole ground that otherwise it would be opposed to natural justice. For a moment I will turn my attention to these cases, to see how far they sustain the proposition above stated, or the kindred proposition that a misapprehension as to the legal application of a statutory prohibition will excuse its infringement.- The two cases of Rex v. Jackson, 1 T. R. 653, and Rex v. Barrat, Doug. 449, have no relevancy, as they were motions for informations, and were therefore applications addressed to the discretion of the court. The next case is that of Commonwealth v. Bradford, 9 Metc. 268, in which the indictment was for illegal voting, but it can have no appreciable bearing upon the present inquiry, for although it was indeed held that a mistake with reference to the law might be proved, it appeared that the statute alleged to have been violated, made a knowledge of the law a component part of the offence. The act imposed a penalty on a person who should vote “ knowing himself not to be a qualified voter;” and the court sanctioned the admission of evidence tending to show an honest error as to the law. Tdo not think that it is to be questioned that where a corrupt purpose or guilty knowledge is a part of the crime, ignorance of the law may be shown. The recent case of State v. Noyes was affected by such a circumstance, and the defendant was permitted to show, in repulsion of' the charge of fraud, that he was honestly mistaken as to the law and that he acted under the advice of counsel. In the present case, if this act of 1876 had declared that if any member of the board of freeholders should corruptly contract a debt in excess of the prescribed limit, there would not upon this point have been any question worthy of a moment’s discussion. The next case, which is that of Commonwealth v. Shedd, 1 Mass. 228, is subject to this same criticism.

The next case is the anonymous one taken from 2 East P. C. 765, and it, with respect to its enactment, was this: A statute made it an indictable offence for any person to have in his possession any canvas stamped with the king’s mark, unless such person had a certificate of an officer of the crown showing how such article came into his possession. The defendant, who was a woman, was found with such a piece of canvas in her possession, and had no certificate showing how it came to her. On the trial it appeared that the defendant’s husband had purchased it in his lifetime at a public sale by the officers of the navy, and had used it in the family, and that it had been left in the house at his death, and that no certificate appeared to have been taken at the sale. It was obvious that the defendant was morally not guilty and the court pronounced her legally not guilty. As far as appears there was no attempt to put any construction on the statute, derived from its language or the object at which it aimed, but the case as reported was disposed of by the remark made apparently to the jury, that “if the defendant’s husband really bought the linen at public sale, but neglected to take a certificate, or did not preserve it, it would be contrary to natural justice, after such a length of time, to punish her for his neglect.” This as an observation to the jury would not be out of the way, but as lapse of time could have nothing to do with the matter in its legal aspect, it would be an improbable conclusion to infer that the judge in these expressions was assigning his grounds for holding this law inapplicable if the defendant’s possession of this article was unconsciously wrongful. But I do not think this case, from extrinsic considerations, of much force as a precedent. It is true that the judgment is said to have been rendered, under the circumstances stated, by Judge Foster, who in his day was eminent for his learning, especially in the field of criminal law, but the case is not taken from the well-known volume entitled “ Foster’s Reports,” and which was prepared and published by the judge himself, but from the appendix added by another hand to the third edition, and which appendix is of no authenticity, for we are informed by Mr. Dodson, in his life of Judge Foster, that this appendix contains matters which the judge, by the advice of Lord Mansfield and Lord Hardwicke, had himself suppressed. I also observe that in the preface to his own edition this venerable magistrate says that he is about to submit a few crown cases in which he had taken a share, and that his other notes “ are too crude and imperfect to admit of publication,” and yet it is from these notes that the appendix in question has been composed. It seems to me this case is of little account. Moreover, it is highly probable that it was, in point of fact, put on the same ground with Reg. v. Sleep, 8 Cox’s Crim. Cas. 472, which is another authority cited for the defence, and which was the case of a person indicted under the same statutory provision for having in his possession certain copper marked with an arrow, denoting that it had formerly belonged to the government. The jury having found that the evidence was insufficient to show that the copper was thus marked, Cockburn, Chief Justice, and his associates adjudged that there could be no conviction, the Chief Justice saying that “ the ordinary principle that there must be a guilty mind to constitute a guilty act applies to this case, and must be imported into this statute, as was held in Reg. v. Cohen, 8 Cox’s Crim. Cas. 41, where this conclusion of law was stated by Hill, Justice, with his usual clearness and power.” It will be perceived that the Chief Justice does not attempt to justify the implication made by him, except by the reference to the judgment of Hill, Justice, in the case named, so that we are constrained to refer to that decision for explanation, and by doing so, we find the enactment in question is expounded in the usual way by a reference to its context and its effects, and the conclusion arrived at that unless the adjudged interpretation should be adopted the act would be run into absurdity. No one can doubt that, granting these judicial premises, the conclusion was in harmony with ordinary rules.

The remaining cases cited, Reg. v. Tinkler, 1 Fos. & F. 513; Hearne v. Garten, 2 E. & E. 66; Rider v. Wood, 2 E. & E. 338; Taylor v. Newman, 4 B. & S. 89; Buckmaster v. Reynolds, 13 C. B. (N. S.) 62, and United States v. Connor, 3 McLean 573, are all decided on the same principle that was applied in the last case jiist specially noticed. It is in this class of decisions that the case of State v. Cutter, 7 Vroom 125, is to be included.

These cases have been specially referred to by me, with the purpose of illustrating by examples the conclusion already expressed, that the subject under consideration is completely embraced in the legal department of statutory construction, and that each decided case rests on its own facts and particularities, and that the maxim, “ actus non facit reum nisi mens sit rea,” has no controlling effect. That this maxim has, and should have, in every doubtful case a decided influence, is not dénied ; but it is intended to be affirmed that when an act is prohibited in express terms by a statute, such prohibition cannot be contracted so as to embrace only such persons as guiltily do such act, by the unassisted force of such maxim.

The course of the inquiry, therefore, has led to this point r is there anything in the language of the statute now to be construed, or in the legislative design displayed in it, or in the consequences, if its terms are construed strictly, by force of which this court can limit its operation to those only who act with consciousness of violating the law ? /

. Now it is incontestable that, in view of the interpretation above, put upon this provision of the statute, the duty thereby required of this defendant was of the simplest possible character. According to that interpretation the legislature, in effect, said to these freeholders, “yourselves fix the sum requisite for your expenditure during the year, but you are interdicted from making any payment or contracting any debt beyond such limit.” I find it impossible-'to regard such a prohibition as involving any idea of complexity, or difficulty in its execution. To obey such an injunction seems, to my mind, a very intelligible matter indeed; certainly a duty much easier of performance than that of the retailer of tobacco, mentioned in the case already cited from Meeson & Welsby, who was enjoined, under a penalty, not to have in his possession any adulterated tobacco, and which duty, his counsel contended, could only be perfectly and certainly performed by having a chemical analysis made of each sample that he purchased. If the duty, then, be a simple one, and not one which is subject to very great difficulties in its performance, there is nothing in the nature of the act prohibited from which the court can say, in the face of the legislative language, that it was not the intention to make it applicable to ■every one who should violate its letter. Counsel indeed pressed upon the court the consideration that this statute, from the infelicity of its phraseology, was, with respect to its purpose or application, open to much question, and that in point of fact professional gentlemen had expressed variant ■opinions with regard to it. This may be so, but when the question is as to the intention of the legislature, this argument is out of place. It would be preposterous for this court to hold that the legislature, in this act, has intended to punish the person who infringes the letter of this law, without regard to the question of his moral delinquency, and a,t the same time to say that such effect shall not be given to the statute, because -of the lame way in which it has been penned. This would be to put the case upon the rejected ground of the hardship .arising from applying the law to a person whose mind was not guilty, instead of abiding by the adopted doctrine of ascertaining the intention of the law maker. The sole business of the court is to find the meaning of this law, and then to give it effect in that sense. It will also be observed that the result to which I have come, that this duty imposed on the freeholders is a plain one and one not difficult of performance, dissipates all idea that the court can, by construction, control the generality of its terms, on the ground that, read in its rigor, if bears so hardly on this class of officers as to raise a presumption against such an interpretation. If there has been any hardship, it has .arisen from the verbal obscurity of the statute, and such a consideration, it has been' just remarked, ought not to affect the mind of the court. Nor is it the province of the court to say whether this law is too rigorous or not; that is the part of the legislature; but it certainly is not clear that such a regulation may not be subservient to a wise public policy. Entertaining the view that the act which this defendant was ordered to abstain from doing was neither difficult to comprehend or to perform, I find myself unable to yield to the notion that the language of the provision in question can be curtailed by construction.

The judgment should be affirmed.

For affirmance — The Chancellor, Chief Justice, De~ pue, Reed, Scudder, Van Syckel, Woodhull, Clement,. Dodd, Green, Lilly — 11. For reversal — None.