We therefore deny defendant's motion to vacate the rules heretofore obtained by the plaintiff to perfect her proceedings for a new trial, and we grant the plaintiff's motion to vacate the restraint imposed in the order of Mr. Justice Minturn, and also grant the plaintiff permission to perfect her proceedings for an application for a new trial, and also permission to bring the same on for argument at the February term of this Court, according to the rules of this Court. The relief thus granted to the plaintiff will be upon terms that she pay the defendant costs upon these motions; all other costs to abide the event.
_City Ordinance Against Disorderly Conduct--The Disorderly Act--Removal of Persons from Railroad Train._
Case of The State against Jacob Gross, Prosecutor. On certiorari dismissing conviction.
Argued before Justice MINTURN by consent.
MINTURN, J:. The prosecutor of this writ was convicted before the Recorder of the City of Passaic for violating section 72 of an ordinance of that city which provides as follows: "That any person, who shall in any place in the city of Passaic, make, aid or assist in making any improper noise, riot, disturbance or breach of the peace, or shall behave in a disorderly manner, or make use of obscene or profane language ... shall each be liable to a penalty of five dollars for every offense."
The violation complained of was that, while he was a passenger on an Erie Railroad train, and while the train had stopped at Passaic, he refused to remove his baggage from between the seats to the baggage compartment at the request of the conductor, as a result of which the prosecutor became noisy and boisterous, and the conductor thereupon caused the removal of the prosecutor and his baggage from the car, and turned him and it over to a local police officer. He was thereafter prosecuted as a disorderly person and convicted of that offense.
Various legal grounds are advanced as a basis for vacating the conviction. One only I deem fatal to its validity.
The ordinance in question was intended to apply to public places within the city for the purpose of suppressing disorderly conduct therein, and, while in a limited sense a steam railroad car is a quasi public place as between the State and the railroad, it cannot be reasonably construed as furnishing such a public place within the contemplation of the local legislative body, when they passed this ordinance. A similar contention was before this Court in State v. Lynch, 23 N. J. L. J. 45, where it was held that a saloon, although a public house in contemplation of law, is not a "public place" within the contemplation of the provisions of the Disorderly Act. The words "public places" in this connection were held to be "such places as are in general use for travel by all citizens, and in which all have at all times an equal right of passage and repassage." Adopting this rule of construction the railroad coach in question was not a "place" to which the jurisdiction of the city can be said to extend, and the word "place," therefore, in this connection, must be held to be equivalent to "public place." That this is so is made manifest from the context of the section of the ordinance invoked upon the doctrine of _noscitur a sociis_. Thus, the person charged must not only be in "a place in the city of Passaic," but he must "make, aid or assist in making any improper noise, riot, disturbance or breach of the peace, or shall behave in a disorderly manner or make use of obscene or profane language."