«NEW JERSEY LAW REVISION COMMISSION Draft Tentative Report Relating to REPEAL OF ANACHRONISTIC AND INVALID STATUTES June 2011 John M. Cannel, Esq., ...»
STATE OF NEW JERSEY
NEW JERSEY LAW REVISION COMMISSION
Draft Tentative Report
REPEAL OF ANACHRONISTIC AND INVALID STATUTES
John M. Cannel, Esq., Executive Director
NEW JERSEY LAW REVISION COMMISSION
153 Halsey Street, 7th Fl., Box 47016
Newark, New Jersey 07101
(Fax) 973-648-3123 Email: email@example.com Web site: http://www.njlrc.org General RepealerDTR060611.doc
-1REPEAL OF ANACHRONISTIC AND INVALID STATUTESThis Commission is explicitly directed to identify anachronistic and redundant provisions in the law. C. 1:12A-8(a). Thus, this project falls directly within the Commission's duties.
However, this project has added importance. Many of these provisions continue to look like valid law. Removal of some of these provisions serves the function of removing ambiguities from the law. Their retention can be deceptive.
It has been more than 20 years since the Commission published a report identifying anachronistic or invalid statutes and recommending their repeal. The Legislature acted on that report in part, enacting four statutes of repeal. See L 1991 c. 59, 93, 121 and 148. This report continues to recommend repeal of those statutes which the Legislature did not act on and adds others identified by the Commission, the Office of Legislative Services or interested groups.
The reasons that particular statutes should be repealed vary, but fall into several categories. Some statutes are invalid because they have been found unconstitutional or have been superseded. See, for instance, C. 56:7-1 to 7-17, declared unconstitutional in Lane Distributors v. Tilton, 7 N.J. 349 (1951) and N.J.S. 2A:82-8, one of a number of statutes superseded by the New Jersey Evidence Rules as provided by N.J.S. 2A:84A-40 (Official footnote to Evid. R. 70).
A larger number of statutes are those which may well be legally enforceable but which have ceased to have any operative effect with the passage of time. Some are anachronistic because they relate to offices or institutions which no longer exist. See, for instance, R.S. 44:1to 1-79, dealing with overseers of the poor. Others are anachronistic because they deal with problems which were important at one time but which have ceased to be relevant to modern society. In they modern context they amount to unnecessary regulation. See, for instance, R.S.
45:20-1 to 20-3 regulating millers of grain. Still others deal with problems which have relevance but deal with a problem in a way which has become totally unacceptable. See, for instance, R.S.
8-14 which limits the amount to be spent on food for a prisoner to $.50 a day.
The following analysis of these statutes divides them into the categories outlined above and explains the reasons for recommending repeal as to each. In addition, the Appendix to this memorandum lists the statutes in order by title and section and summarizes briefly the reasons for each recommendation.
The particular sections proposed for repeal are not all of the anachronistic or superseded sections in the New Jersey statutes. It appears that perhaps as much as ten to twenty percent of the current statutory material falls into those categories. The Commission intends to continue this project and report periodically, identifying sections which should be repealed.
Note: This draft includes almost all those statutes that have been suggested for repeal in their entirety. We have not included partial repealers with the exception of 18A:36-3(c). That subsection was recommended for repeal in an earlier report.
4:5-11. Disposal of dead or slaughtered animals; disposal for food a misdemeanor This section regulates the disposal of dead animals by the Department of Agriculture.
4:21-4. Right to drive animals over streets and highways 4:21-5. Fee for taking stray or trespassing animals to pound 4:21-6. Poundkeeper's fees 4:21-7. Sale of impounded animals and disposition of proceeds These sections regulate stray horses, cattle, sheep and swine.
4:21-11. Permitting stallion to run at large; penalty 4:21-12. Permitting bull to run at large; penalty; damages 4:21-13. Rams trespassing or going at large during specified period; remedy These statutes penalize allowing stallions, bulls or rams to run at large.
6:2-11. Acrobatic stunts; low flying over public gatherings prohibited; penalty This statute forbids stunt aeronautics that endangers the public.
15:4-1. Pursuers may be appointed by private detective association; constabulary powers This section allows the State Police to license private law enforcement for the detection, pursuit, apprehension, arrest or prosecution of thieves, tramps, marauders, or other depredators on persons or property, or the recovery of stolen goods.
26:4-10 - Public drinking cups This penal provision forbids the use of public drinking cups. Such a specific prohibition is unnecessary in light of present standards of sanitation.
26:4-11 - Transportation of infected persons and items This section limits acceptance by a common carrier of persons infected with communicable diseases, or their infected clothing or bedding.
26:4-42. Occupations forbidden infected persons 26:4-43. Permit to remove from district 26:4-44. Information required for permit 26:4-45. Report of issuance of permit These sections prevent persons infected with venereal diseases in an infectious stage from engaging in certain occupations or from moving from one district to another without a permit.
26:4-50 to 26:4-53 and 26:4-57 - Involuntary commitment of typhoid carriers These sections provide for involuntary examination and commitment of typhoid and paratyphoid carriers. Advances in medical treatment make this section unnecessary.
This section limits the amount to be spent for feeding a prisoner in county jail to $.50 a day. Inflation has made this provision unenforceable.
2C:40-2. Refusing to yield a party line This section provides a penalty for refusing to yield a telephone party line for someone who needs to make a telephone call in an emergency. Telephone party lines no longer exist.
26:4-90. Killing of unmuzzled dog running at large 26:4-91. Appointment of dog killer; restrictions on killing dogs These sections allow the mayor of a city to issue a proclamation authorizing killing of an unmuzzled dog and appointing a dog killer to carry out the order.
30:8-5. Debtors separated from criminals This section requires that persons imprisoned for debt be housed separately from criminals.
30:8-35. Workhouse master to keep prisoners at labor; punishment of prisoners for misconduct This section requires all prisoners in a workhouse to work and allows the workhouse master to reduce the food of a prisoner who uses “indecent language or behavior or profane cursing or swearing, or is disobedient, stubborn, rude, refractory or abusive or is negligent or idle or does not perform his task properly.” 40A:9-60. Finder's expenses 40A:9-61. Disposition of personal property found on shipwrecked bodies 40A:9-62. Medical examiner's records of shipwrecks These sections regulate the disposition of bodies washed up on New Jersey shores as the result of shipwrecks.
41:2-18 to 41:2-20 - Administration of oaths 46:27-1 to 46:27-2 - Surveyors General These sections relate to the Proprietors of East Jersey and West Jersey, the bodies which governed the territory now comprising this State in colonial times. The Proprietors lost most of their governing power in 1708.
The provisions in Title 41 which relate to the Proprietors allow the West Jersey Proprietors to take oaths in matters in which they are settling disputes. However, their power to settle disputes seems to have been lost in 1708. The Title 46 provisions establish the Surveyors General of East Jersey and West Jersey as public officers. The East Jersey Proprietors has ceased to exist. While the office of the West Jersey Surveyor General continues to exist, it is a private office now of the West Jersey Board of Proprietors, which functions as a private land company.
48:8-14. Steamboats passing nearer than ten yards; penalty This statute is limited to steamboats and requires them, when passing to stay at least 10 yards apart.
These sections provide procedures for the termination of private turnpike and plank road companies. No such companies remain.
II. UNNECESSARY REGULATIONS29:4-1 to 29:4-4 - Guest registers These sections require guest registers in hotels containing ten or fewer rooms. There is no similar requirement for larger hotels.
These sections limit millers of grain to a fee of 1/10th of the grain ground and requires them to have on their premises a standard bushel measure and a strike to level the grain in it.
48:8-1 to 48:8-17 - Ferries and steamboats These sections separately regulate ferries and steamboats. Even with the reinstitution of water transportation, the subjects of these sections seem inappropriate to modern concerns.
48:12-158. Placing freight car in rear of passenger car; misdemeanor; exceptions where ordered by army or navy officers This section limits the placement of freight cars in passenger trains.
51:1-30 to 31 - Milk bottles 51:1-32 - Thread 51:1-36 to 51:1-37.1 - Ice 51:1-38 - Solid fuel 51:1-39 - Charcoal These sections regulate the quantity marking and package sizes permitted for milk bottles, ice cream, thread, ice, solid fuels and charcoal. All seem unnecessary given general regulation of these subjects by such sections as 51:1-29, 51:1-61 and 51:1-97 which provide for marking of packages, regulation concerning size of packages and penalties for false weight or measure. In addition, the particular regulations on ice and charcoal are unenforceable given the change in the nature of most sales of those commodities.
51:3-1. Pillars showing true meridian; verification of meridian line 51:3-3. Injuring pillars; misdemeanor These sections require the maintenance of pillars on each courthouse lawn so that surveyors can orient their compasses on true north.
III. RELATING TO NONEXISTENT OFFICERS OR INSTITUTIONS30:9-28, 30:9-29, 30:9-35 to 30:9-44.3 and 30:9-61 to 30:9-69 - County Hospitals for Communicable Diseases
30:9-70 to 30:9-81 and 30:9-85 to 30:9-86 - Municipal Hospitals for Communicable Diseases These sections regulate municipal hospitals for communicable diseases. No such institution now exists.
44:1-3 to 44:1-9, 44:1-64 to 44:1-72, 44:2-1 to 44:2-9 and 44:3-3 to 44:3-4 - Welfare houses These sections provide for regulation of municipal and county welfare houses. These institutions, originally called "poor houses" or "almshouses," provided a system of indoor relief superseded by the current welfare system in the 1930's. These sections have also been recommended for repeal in the Commission’s Report on Revision of the Welfare Laws.
44:1-73 to 44:1-79, 44:1-81 to 44:1-85, and 44:1-87 to 44:1-94 - Overseers of the poor These sections provide for municipal overseers of the poor. This office was abolished and replaced by that of municipal welfare director. See 44:1-73.1. These sections have also been recommended for repeal in the Commission’s Report on Revision of the Welfare Laws.
2A:11-55 - Records and certified copies as evidence 2A:81-1 - General rule on witness competency 2A:81-8 - Privilege of criminal defendant 2A:81-12 to 2A:81-14 - Competency of various witnesses 2A:82-2 - Authentication of signatures 2A:82-8 to 2A:82-9 - Documents as evidence 2A:82-11 - Surveys as evidence 2A:82-14 to 2A:82-16 - Ordinances and municipal records as evidence 2A:82-20 to 2A:82-23 - Instruments as evidence 2A:82-25 - Evidence of foreign law 2A:82-27 - to 2A:82-37 Evidence of foreign law; judicial notice; definitions of terms All of these statutes were specifically identified in a footnote to a rule of evidence as inconsistent with, or included by, that rule. These references make the statutes in question invalid. See, N.J.S. 2A:84A-40.
30:8-36. Punishment for escape from workhouse This section provides a penalty for escape from a county workhouse. It has been superseded by 2C:29-5 which makes escape a crime.
V. STATUTES HELD UNCONSTITUTIONAL
18A:36-3(c) Requiring New Jersey public school students to stand for the Pledge of Allegiance This subsection was held unconstitutional in Lipp v. Morris, 579 F.2d 834 (3d Cir. 1978).
The Commission recommended its repeal in an earlier report.
18A:36-4 Requiring public school principals and teachers to permit students to observe a moment of silence.
This section was held unconstitutional in May v. Cooperman, 780 F.2d 240, 253 (3d Cir.
1985), which found that it lacked a secular purpose and violated the Establishment Clause of the First Amendment. The Commission recommended its repeal in an earlier report.
51:7-1 to 51:7-9 - Interstate transportation of anthracite These sections regulate the interstate shipment of anthracite. They were held to be a violation of the United States Constitution in Dickerson v. N.J. State Dept. of Weights and Measures, 33 F.Supp. 431 (D.C.N.J. 1940) rev'd on other grounds 312 U.S. 656.
Notwithstanding that the ruling of unconstitutionality is not legally definitive, it appears to have been accepted as correct, and the provisions have never been enforced.
56:7-1 to 56:7-17 - Unfair Cigarette Sales Act of 1948 These sections comprise the Unfair Cigarette Sales Act of 1948 held unconstitutional by Lane Distributors, Inc. v. Tilton, 7 N.J. 349 (1951). After that ruling, the Legislature passed a new act correcting the defects but never repealed the old one. See C.56:7-18 et seq.
This act was found to be unconstitutional in Planned Parenthood of Central New Jersey v.
Farmer, 220 F.3d 127 (3d Cir. 2000). See also Stenberg v. Cahart, 530 U.S. 914 (2000) (striking a similar Nebraska statute) 9:17A-1.1 through 1.12 Parental Notification for Abortion The New Jersey Supreme Court, in Planned Parenthood of Central New Jersey v. Farmer, 165 N.J. 609 (2000), held that the Act was unconstitutional.