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."
This enumeration of specific acts of misdemeanor connotes, generally speaking, the ordinary offense of disorderly conduct, such as is condemned in our Disorderly Act; and, as has been observed, such disorderly conduct, to be the subject of public prosecution, must occur in a "public place," within the jurisdiction of the City Magistrate, and the environment of the city. A travelling car manifestly is not such a public place. 32 Cyc. 1249 and cases.
The fact that the prosecutor was noisy in asserting his rights can make no difference in the result, for we may, from experience, judicially notice the fact that the inter-urban railroad train presents no suitable accommodation for one inclined to indulge in either introspection or somnolence. Therefore, an ordinary conversation in a major key when indulged, as was the case here, between a conductor, with a book of railroad rules in his hand emphasizing his duty, and a protesting commuter with an innocuous bag, the owner of which attempted to vindicate in Yiddish-English the rights of the American travelling public, might be the means of provoking an innocent mental diversion for the benefit of the curious passengers, but could hardly be said to evolve the serious accusation of disorderly conduct in a public place, within the meaning of the ordinance. A discussion in an elevated key on a railway carriage, whether it concern a bag or the suspected contents of a bag, is not an unusual episode in everyday American railway life; nor can it be said to be without its compensation and exhilarating effect upon the general body of passengers, so long as it does not assume the intolerant form of vulgarity, or obscenity, and thus warrant the ejection from the train of the malodorous disputant.
The fact, of course, is that the voluminous resonance of a conversation cannot be utilized as a standard to guage either its criminality or its literary value, and yet debates in the halls of legislation, in the Courts of justice, not to speak of fulminations from the pulpit, are often measured by the volume of vocalization and the density of lung power behind them.
If precedent were invoked from the classics, we have it in "Sweet Auburn;" where, in fancy, we hear the
"Loud laugh that spoke the vacant mind;"
and Goldsmith's pen picture has placed the vociferous schoolmaster among the immortals, whose
"Words of learnèd length and thundering sound Amazed the gazing rustics ranged around."
All of this, and more, is familiar experience on the railway train, and thus far has escaped the proscription of the authorities.