(dissenting). The indictment for nonfeasance with which we are here concerned consists of 19 counts. The first 16 counts are basically similar and proceed on the assumption, as does the majority opinion, that the Prosecutor of the Pleas of Bergen County, a county which consists of 70 municipalities having 887 police officers, is charged with a primal duty as a police and peace officer by R. S. 2:182-5 which provides:
“Bach prosecutor of the pleas shall be vested with the same powers and subject to the same penalties, within his county, as the attorney general shall by law be vested with or subject to, and he shall use all reasonable and lawful diligence for the detection, arrest, indictment and conviction of offenders against the laws.”
The first count of the indictment charges the defendant with the public duty of using and exercising and causing to be used and exercised all proper, reasonable and effective means and all lawful means for preserving the public peace and insuring good order in the said County of Bergen, and for suppressing all disorderly houses wherein gaming, betting, bookmaking, etc. were conducted and operated and for failing to enforce the laws of this State relating to gambling. Then it alleges specifically that a gambling operation was conducted at a specified address during a specified period and *185that Walter G. Winne “well knowing the premises aforesaid but disregarding the public duty by law so enjoined upon him, then and there continuously, unlawfully and wilfully did neglect and omit to perform the said public duties and failed and omitted to use all proper, reasonable, effective and diligent means within his power as the Prosecutor of Bergen County for the detection, arrest, indictment and conviction of a person or persons who kept and maintained the gaming house as aforesaid.”
The basic question to be determined then is whether the Prosecutor of the Pleas by virtue of the provisions of this statute, R. 8. 2:182-5, has the primary and dominant responsibility in the county as the majority opinion assumes, to detect and arrest any person who violates any of the criminal statutes or the common law with respect to crimes in the county in which he has jurisdiction. The section in question does two things: it invests him with the power that the Attorney-General shall by law be invested with or subject to, and secondly, it requires that he shall use all reasonable and lawful diligence for the detection, arrest, indictment and conviction of offenders against the law.
'The primal police duty argued for in this case, it must be conceded, was never in the Attorney-General. The Attorney-General was originally the principal law enforcement officer insofar as the prosecution of the pleas in this State was concerned and it was not until 1822 that the appointment of a person to prosecute the pleas in each county was authorized by statute. This statute appears in Nixon’s Digest of 1846,' page 52. But -this statute is not the forerunner of the section here in question, as the State contends. During all the period of time from the adoption of the Constitution of 1776 up to 1874 the peace officers of this State were the sheriff, and the various constables and policemen appointed in the various municipalities. They were charged with the primal duty as police officers for the detection and arrest of violators of the criminal law.
As of today the sheriff is still possessed-of all his common law powers as a police officer which are specifically set *186forth at some length in 1 Blacks lone *344; 1 Chilly’s Criminal Lato *25. See the notes in Elmer’s Digest, page 452. There is nothing in the statutes abolishing these common law duties of the sheriff, so I have come to the conclusion that he still has the primal power as a police and peace officer in the county, where necessary, to arrest any one on a criminal charge.
Such was the state of the law when the predecessor statute of R. S. 2:182-5 was originally enacted by law. This statute was not enacted for the first time in 1898, as suggested by the State or in the majority opinion, and the section does not reflect, as the majority contends, a legislative response to problems of law enforcement that were reflected in the rapidly increasing population of the State, and in the complexities of life in many urban communities and in the need for the concentration of authority in the county for the detection, arrest and indictment of criminals. This State was a distinctly rural community when this statute was originally enacted and none of the reasons urged in support of the construction placed on the statute by the majority was in existence at the time.
The section first appeared and was enacted in the Revision of 1874. The statute enacted is not found in the public laws because it was part of the revision authorized in 1871 and popularly known as the “Eevision of 1877.” The particular section is found in the “Eevised Statutes” 187A-1875, page 237, section 100, which revised statutes were enacted by an act having the following title: “An act regulating proceedings in criminal cases,” approved March 27, 1874, effective January 1, 1875.
This revision of the criminal laws was compiled and arranged by Chief Justice Beasley, Justice Depue and Courtland Parker.
In Lindabury v. Freeholders of Ocean, 47 N. J. L. 417, at page 423 (Sup. Ct. 1885), Mr. Justice Depue stated:
“In State, Lewis, pros. v. Hudson County, already cited, this court, while it affirmed the obligation of the county to defray the expenses incurred in the due administration of justice, regarded the *187obligation as a moral obligation merely, and, as the law then stood, the obligation was a moral obligation, in the sense that there was no statute which imposed the duty as a legal duty or prescribed any means for determining the amount that should be paid. Hence the court in that case treated the whole subject as being within the discretion of the board as to whether such expenses should be paid, and left it discretionary with the board as to the sum that should be paid. To meet this condition of affairs section 100 of the Criminal Procedure Act was passed. That section enacts that ‘it shall be the duty of the prosecutor of the pleas for each county to use all reasonable and lawful diligence for the detection, arrest, indictment and conviction of offenders against the laws; and all necessary expenses incurred thereby, verified to and approved under his hand, by the presiding judge of the Court of Oyer and Terminer or General Quarter Sessions of the Peace for any county, shall be paid by the board of freeholders thereof.’
The language of the section quoted is quite general. It is made the duty of the' prosecutor ‘to use all reasonable and lawful diligence for the detection, indictment and conviction of offenders,’ and the payment of ‘all necessary expenses incurred thereby’ is enjoined upon the board of freeholders. A construction of the statute which would restrict its provisions to the personal efforts of the prosecutor, and his personal expenses, without authority to employ other means and instrumentalities to aid him in the discharge of his duty, and to incur expense thereby, would be too narrow to effect the legislative purpose. On such a construction the prosecutor would not be able to have a diagram prepared, nor to have a chemical analysis made, nor to employ a detective, with any assurance that the expense necessarily incurred thereby would be paid. Such a construction would leave to a prosecutor an excuse for the lax performance of duty, that he had no authority to incur the requisite expense. The plain intent of the statute was to confer upon the prosecutor authority to provide reasonable means to aid him in the performance of his official duties, with a guaranty that the necessary expenses incurred should be paid; and it was left to the court by the certificate and approval of the presiding judge to determine the reasonableness of the means employed, and the necessity of the expenses incurred.”
His remarks that a construction of the statute which would restrict its provisions to the personal efforts of the prosecutor at his personal expense would be too narrow, do not permit the inference that by the enactment of the statute it was intended to impose a primal dominant duty of a police and peace officer upon the prosecutor of the pleas. That would indeed be an unreasonable interpretation in view of the historical situation that existed where the sheriff was the *188principal peace officer of the county and the local policemen and constables had the primal police duties in the municipalities.
The prosecutor of the pleas worked on a fee basis based upon pleas and indictments and it was not until 1877 when by L. 1877, c. 65, p. 97, that the prosecutor of the pleas was authorized to “appoint some suitable person to act as a special officer for the detection, arrest, indictment and conviction of offenders against the laws; such person so appointed, shall possess all the powers and rights, and be subject to all the obligations of constables and police officers in any county of this state * * *” (Italics supplied).
Neither the State on the argument, nor the majority opinion, points to a single statutory provision that imposes such a duty upon the prosecutor except the one here in question. The 1877 statute just mentioned is the forerunner of the various statutory provisions for prosecutors’ detectives and investigators now found in B. S. 2 :181 — 1 et seq., and these detectives are by these sections given “all the rights and powers of special deputy sheriffs, constables and police officers.”
It should be noted right here that it was not until 1878 by L. 1878, c. 99, p. 165, that the prosecutor of the pleas in certain counties was put on a salary basis rather than a fee basis. The question should immediately arise in any one’s mind that since there was no provision for the prosecutor to be paid on a fee basis for the arrest and detection of criminals in 1874, could the Legislature have intended to have imposed a primal police duty upon the prosecutor of the pleas when it made no provision for his remuneration?
Now, if it was intended by section 100 of the 1874 criminal revision that the prosecutor of the pleas should be charged with' the primal police duty in the county why, in State, Lewis v. Hudson County, supra, did the court come to the conclusion that where the prosecutor of the pleas on his volition incurred such expenses for the detection of crime or the arrest of individuals, that the duty was a moral one rather than a legal one ? Because if it was a legal duty, the *189board of freeholders was bound to appropriate the money necessary for such work when requested by the prosecutor and there would be no reason for the enactment of this so-called section 100 whereunder the expenses so incurred are subject to the approval of the court. It seems to me that a clear reading of this 1874 act, as originally enacted, in view of all the historical facts then existing and the various duties of other police and peace officers charged with the preservation of the peace and the enforcement of the law, requires that the duty so imposed is purely discretionary.
The State in the argument concedes that the defendant was a gwasi-juducial officer and the performance of his duties required the use of wide discretion. The State seems to readily concede that insofar as the indictment, prosecution and conviction of offenders against the law are concerned that the duties of the prosecutor of the pleas is a discretionary one. Certainly it could not be argued that a prosecutor has no right in the absence of a corrupt motive to nolle pros an indictment.
The words “indictment” and “conviction” occur in the same series of words with the words “detection” and “arrest” and it would seem to me that the maxim noscitur a sociis would apply, and this maxim represents a conclusion that coirsidering the language of the entire act, its subject matter, and the available evidences of the legislative intent, that the interpretation of the court must be consistent with the legislative purpose. 2 Sutherland Statutory Construction, section 4908.
The indictment, and the majority opinion, proceeds on the assumption that as to prosecution and conviction the statutory provision is discretionary but as to detection and arrest it is mandatory insofar as primal police duty is concerned. Such a basic distinction of this should not be read into the statute in the absence of a clear expression of legislative intent.
When the statute was originally enacted, Revised Statutes, 1874, section 100, page 237, it consisted of two clauses. The first clause set forth the general duty now found in *190R. 8. 2:182-5 and the second clause provided for the payment of expenses incurred by prosecutors of the pleas on approval of the Judge of Oyer and Terminer or General Quarter Sessions, now R. S. 2:182-7. The statute should be read as a whole, and the mere fact that the revisors of 1937 separated the statute into two sections does not change the original legislative intent.
I therefore conclude that it was not the legislative intent that the prosecutor of the pleas was vested with primal police powers for original arrest and detection of crime as was conferred by the common law on the sheriffs and by various other statutes on deputy sheriffs, constables, police officers and county detectives. If he has such power then he is primarily or dominantly responsible for keeping and preserving the peace of the county in each and every municipality, and I do not think that such was the intention of the original enactment in 1874.
The prosecutor of the pleas cannot give the local policemen orders. If he has knowledge of violations and calls for their help and they refuse or adamantly avoid performing their duty, then he can proceed against them by indictment or presentment, but to say he has a primary responsibility over and above their omissions or derelictions of duty to arrest and detect crime in the county places upon him a duty which he could not possibly enforce or carry out with the forces and powers at his personal command.
Superior Court Judge Hughes in dismissing the indictment based the dismissal principally upon the want of any allegation that the defendant acted corruptly or with evil motive. In the two cases where prosecutors have been indicted in this State, in each indictment they were charged with doing things corruptly and with evil intent. State v. Jefferson, 88 N. J. L. 447 (Sup. Ct. 1916), affirmed 90 N. J. L. 507 (E. & A. 1917); State v. Bolitho, 103 N. J. L. 246 (Sup. Ct. 1927), affirmed 104 N. J. L. 446 (E. & A. 1927).
The State has not cited any cases where a prosecutor or prosecuting attorney has been indicted for nonfeasance under the facts and circumstances here presented. All the cases *191they rely on, some of which are quoted from in the majority opinion, are causes where a prosecutor or prosecuting attorney or some other officer was removed from office in a removal proceeding, which is an entirely different situation from an indictment for a crime. In such a proceeding the respondent only loses his office and the perquisites thereof. These are of minor consequence when compared with the penalties which are imposed on a conviction for a crime.
What we are concerned with here is a criminal offense at common law, and the constituents of such an offense are an evil intent and unlawful act. State v. Labato, 7 N. J. 137 (1951). The situation is likewise different where the criminal offense is based upon a statute. The Legislature may, if it will, make an act criminal without regard to criminal intention; hence it has been held that in the absence of express words in the statute, making the act criminal, there must be a charge in the indictment that the offense was committed with an evil intent or unlawfully. 1 Russell on Crimes 49; Bishop on Statutory Crimes, section 132; State v. Startup, 39 N. J. L. 423 (Sup. Ct. 1877).
The State’s contention is that it is not necessary to assert a corrupt motive or evil intent for failure to act or to support an indictment for nonfeasance and they rely largely on State v. Jefferson, supra, and they excise from the opinion a particular sentence as follows:
“Indeed, such an agreement, or even such payments or receipts of money were not essential to the offense of malfeasance, which, without doubt, might be as fully committed for reasons of personal favoritism or for political reasons or for no known reason at all.”
There the indictment was for malfeasance and there was a corrupt agreement not to prosecute in consideration of the payment of money. There was no charge in that indictment of mere nonfeasance. (See State of Case, vol. 772, Court of Errors and Appeals Briefs 1919, page 29).
But aside from this difference in the two cases certainly any act done by the prosecutor of the pleas for money or for *192personal favoritism or political' reasons which would result in the indictment or conviction of any person or the acquittal of a guilty person would be an act done with a corrupt motive or evil intent. I do not think that could be argued by anybody. As to the phrase of Mr. Justice Garrison, “for no known reason at all,” if it means anything, for it seems to be gratuitous and dicta, it can only be interpreted to mean that no one reason was expressly established by the direct evidence before the court, but from all the facts and circumstances an inference of corrupt motive or evil intent could be drawn.
Erom time immemorial a common law crime consists of two elements, a charge of criminal intent and a description of the criminal act. The authorities above referred to are the only authorities cited by the State that are even partially persuasive to support their argument that a corrupt motive or evil intent is not of the essence of the crime of malfeasance or nonfeasance.
The cases of State v. Donovan, 132 N. J. L. 319 (Sup. Ct. 1945), involving the director of the police department, which department has prime authority as peace officers and arresting officers in the municipality, and State v. McFeeley, 136 N. J. L. 102 (Sup. Ct. 1947), are not in point. In the McFeeley case the gist of the indictment was that a raid had been made upon a gambling place and certain paraphernalia had been confiscated but no effective steps had been taken for the arrest and prosecution of the operators of the place who apparently were not even arrested. Certainly a corrupt motive or evil intent could be spelled out from such facts and circumstances.
Here it should be said that the record of indictments and pleas taken in Bergen County since the present investigation, started under the direction of the Attorney-General proves beyond any peradventure of doubt that gambling as an organized business was rampant in the county, and the conclusion necessarily follows that such a situation was the result of the failure of the 887 police and peace officers of the county to perform their duty under the law.
*193It seems to me that the breakdown of law enforcement in Bergen County is.on the doorstep of the police department in the original instance. It is an oyer statement to argue, as the State does, that the State will be virtually powerless in the face of laxness, opposition or indifference on the part of the prosecutors of the pleas. This to me is nonsense in view of the tremendous number of policemen' and peace officers we have in this State who have the primal duty to enforce the laws and to make the original arrests.
True, the indictment in this case contains 19 counts, 16 of which are similar, but the number of counts add nothing to the validity of the indictment, because if the first count is invalid in law the mere fact there are 16 others of similar import will not make out a crime on the part of the prosecutor of the pleas.
Examining the first count of the indictment, it seems to me that the essence of this count is that the prosecutor had a primal police duty, and secondly that the defendant knew of the gambling operations on a specified premise on the particular date set forth; but there is no indication as to how he knew. The statement in the majority opinion, “according to the indictment the defendant received reliable information of 19 cases in which the laws of New Jersey were being habitually violated,” relates only to the last three counts hereinafter discussed and not-to the first 16.
The phrase in the first 16 counts that the defendant “well knowing the premises aforesaid, but disregarding the public duties so by law enjoined upon him * * is vague and indefinite. If he did not know he did not have any duty in the premises, and if the State alleges he did know it seems ■ to me that in order to make this indictment valid they should specify how and by what means he knew because that is the thing, and the one thing alone, that he will have to meet on the trial of the case. And, while they admit the defendant can get such information by a bill of particulars, it seems to me that when such a fact is of the very essence of the indictment it is necessary to plead such facts specifically because it is upon the existence of these facts that the element *194of the breach of duty is alleged. Not only should the indictment charge specifically how he knew but that he knew that the place was being used for a gambling resort.
In the McFeeley case, supra, because of the raid they knew and that was clear, but here the situation is entirely different.' It is one thing to charge an ordinary police officer with knowledge of the commission of a crime, but it is an entirely different thing to charge a prosecutor of the pleas generally with knowledge of any and all crimes committed in his county. An ordinary policeman or peace officer is in an entirely different position as far as his duties are concerned. He is in charge of a specified' area and is under the duty to patrol and inspect it physically so as to preserve the peace and preserve order, and if he fulfills these duties as he is required by law to do, then of course it can be assumed that if these violations were occurring they would come within his observation or knowledge if he were at all diligent. No such duty of policing is imposed by the statute on the prosecutor of the pleas. Such information as he receives with respect to the commission of crime must come through various sources (1) police channels, (2) matters referred to the grand jury by the local magistrates, (3) complaints filed with him, and (4) information that he receives from his assistant prosecutors or county detectives or people appointed by him to make -such investigation as he deems necessary. Insofar as his subordinate employees are concerned, it must be presumed they did their lawful duty in the absence of an allegation that they were failing in their duty in specified instances and the prosecutor knew and was aware of it. In this respect I consider the indictment defective for failing to state the sources of knowledge upon which the alleged breach of duty rests.
The majority opinion contends that the use in the indictment of the phrase “unlawfully and wilfully” negatives the exercise by the defendant of good faith. Such a phrase will support a criminal complaint where the Legislature by statute has not made a criminal intent the essence of a crime as before adverted to, but where a criminal intent or corrupt *195motive is the essence of a crime it must be alleged in the indictment and it is not enough to say that “unlawfully and wilfully” negatives the exercise by the defendant of good faith.
The majority opinion seems to concede that most of the reputable authority supports the proposition that an indictment for a common law offense must allege that the defendant willfully, corruptly neglects and declines an official duty; but in reliance on some contra-authority it draws such comfort as can be gotten from the remarks in State v. Jefferson, supra, discussed above, which I feel are not applicable to this indictment.
While I dissented in State v. Weleck, 10 N. J. 362 (1952), I think that that situation is entirely distinguishable from the instant case for there there was no question as to what the general duty was, and one of the questions involved was whether other duties incidental thereto or reasonably related thereto should be set forth in the indictment.
The majority opinion relies on State v. Weleck, supra, to support the indictment here under consideration and I agree that where duties are imposed by law, whether by statute, special or private law, municipal charter or arising out of the very nature of the office itself, the duties need not be specifically set forth in the indictment, but I do not feel myself bound by a statement in that ease which I consider dicta and found on page 369, reading as follows:
“The argument that the second duty of a borough attorney alleged in the indictment is not a duty of office prescribed by law but a mere ethical limitation or principle of behavior is likewise untenable. If a public officer were under no duty imposed by law to regulate his official conduct in accordance with basic moral principles, then he could violate such principles and still be immune from indictment and prosecution for misconduct in office. We recognize no such divorce of morals from the duties of public office.”
Criminal law and morality are not the same thing. The above quoted statement is entirely too broad if it is not limited to the proposition that the moral conduct involves something that is malum per se rather than malum prohi*196bilum. Then within reasonable limits it is true that there are certain violations of moral law about which there can possibly be no dispute and upon which all can agree that they are incident to the duty of any office where the rule might be applied, but there are other principles of morals and ethics about which theologians can differ and on which they have carried on their art of disputation over the centuries. In this field the proposition of the moral rightness or wrongness of gambling is one upon which there is a great difference of opinion. There is one line of thought that gambling itself is not malum, per se, except under certain extreme circumstances. There is another line of thought which considers it malum per se under any and all circumstances. In this State many forms of gambling are malum prohibitum. It seems to me it is not the function of this court to attempt to spell out whether a certain act is malum per se or malum prohibitum. Many an act may be morally wrong, yet not be a crime. And in practically all situations a question whether an act should become malum prohibitum is strictly within the function of the Legislature and not of this court. On such a proposition the people have the right to be heard through their elective representatives in our form of government, and it would be an unusual proposition to assert that a court has the duty through its decisions of promulgating moral or ethical rules to supplement an omission, deliberate or otherwise, on the part of the Legislature in defining certain acts of commission or omission on the part of the citizens as malum prohibitum.
This is a cause in which it can well be said that the case ’ of one single man is the affair of all. One may get a bad public reputation without ever having committed a crime. It is too often asked, “But what are you complaining about? Up to now, no good man has been slandered or hurt.” I make the point that it is not a question whether this is true or false but that the reputation of a bad man is as important politically or juridically as that of any other. The law looks on both with an equal eye and the breach of the law for the purposes of trapping a reputedly bad man involves *197the risk of civil liberties and may necessarily be the beginning of the end of civil liberties for all. Hard cases make bad law.
I have concluded that the first 16 counts of the indictment are bad: (1) for alleging a primal police duty is imposed upon the prosecutor of the pleas by statute; (2) failure to allege a corrupt or evil motive; and (3) the failure to state the source of knowledge imputed to the prosecutor of 'the alleged gambling violations.
The statement in the majority opinion, “according to the indictment the defendant received reliable information of 19 cases in which the laws of New Jersey were habitually violated,” is inaccurate. There isn’t a single allegation in the first 16 counts concerning what reliable information the prosecutor has. These counts name the 19 alleged gambling houses, and it is only in the last three counts that it is indicated that the prosecutor had certain alleged complaints about corrupt officials. Single allegations from the different counts of the indictment cannot be transposed by inference into the other counts of the indictment to sustain such counts.
As to the last three counts in the indictment, I concur in the reasoning and conclusions of Judge Hughes below where he held that the statement in the indictment that the prosecutor received complaints that certain officials were “corrupt officials” is meaningless in law, vague and uncertain and that it is a mere epithet and is lacking in the definiteness necessary to sustain a valid indictment.
I would affirm the judgment below.
For reversal — Chief Justice Vanderbilt, and Justices Heher, Burling, Jacobs and Brennan—5. For affirmance — Justices Oliphant and Wachenfeld—2.