dissenting.
When interpreting statutory language, courts must remain cognizant at all times of the principle that a criminal offense does not exist without an explicit law. This derives from the classic thought, nullum crimen sine lege, which is intrinsic in most enlightened legal systems. A criminal code prescribes the behavior pattern for individuals. What a person may or may not do should not depend on reflections and considerations not explicitly set forth in the code. An explicit law is one that is not susceptible to several reasonable interpretations.
These concepts have spawned some well known doctrines. Penal statutes should be strictly construed. See State v. Carbone, 38 N.J. 19, 24 (1962); State v. Meinken, 10 N.J. 348, 352 (1952). Crimes and their sanctions must be defined with appropriate definiteness. See State v. Fair Lawn Service Center, Inc., 20 N.J. 468, 472 (1956). Terms of a statute should not be extended by implication or intendment. State v. Brenner, 132 N.J.L. 607, 611 (E. & A. 1945). Where more than one reasonable interpretation may be made, construction should be drawn against the State. “[I]n case of doubt concerning the severity of the penalty prescribed by a statute construction will favor a milder penalty over a harsher one.” 3 Sutherland, Statutory Construction § 59.03 at 7 (4 ed. Sands 1974). Failure to give a person of ordinary intelligence fair notice that his conduct is forbidden by statute and punishable by certain penalties transgresses procedural due process. State v. Smith, 46 N.J. 510, 518-519 (1966); Annotation, “Indefiniteness of language as af*41fecting validity of criminal legislation or judicial definition of common-law crime,” 16 L.Ed.2d 1231 (1967).
Keeping these principles in mind, I am constrained to find that neither Count V of the complaint nor the statute, N.J.S.A. 45:9-22,1 justified the imposition of a fine of $18,400.
The complaint that was filed and served on Dr. DeMarco consisted of 12 counts. Count Y charged that his conduct in causing at least 95 patients to contract hepatitis constituted gross malpractice or gross neglect endangering health and demonstrated that he was professionally incompetent to practice medicine. The conclusory paragraph in Count V charged that the respondent was guilty of gross malpractice and neglect and was not qualified to remain a licensed physician. The prayer for relief set forth at the conclusion of the 12 counts sought revocation of his license to practice medicine and surgery, assessment of “such penalties as may be required by law” and “such further relief as may be just and appropriate.”
N.J.S.A. 45:9-22 provides that any person
who violates any of the provisions of this chapter or any supplement thereto, shall be liable to a penalty of two hundred dollars ($200.00), for the first offense. Every person practicing medicine and/or surgery or chiropractic under a firm name and every person practicing medicine and/or surgery or chiropractic or as an employee of another shall cause his name to be conspicuously displayed and kept in a conspicuous place at the entrance of the place where such practice shall be conducted, and any person who shall neglect to cause his name to be displayed as herein required, shall be liable to a penalty of one hundred dollars ($100.00). The penalties provided for by this section shall be sued for and recovered by and in the name of the State Board of Medical Examiners of New Jersey, in a summary manner, pursuant to the Penalty Enforcement Law (N.J.S. 2A:58-1 et seq.) and the Rules of the Supreme Court. Process shall be either in the nature of a summons or warrant.
*42N.J.S.A. 45:9-262 adds that after a person has been convicted and is
again convicted of another violation thereof or of continuing the violation for which such offender was previously convicted, such offender shall be liable to a penalty of five hundred dollars ($500.00) . . . [and] after two convictions . . . such offender shall be liable to a penalty of one thousand dollars ($1,000.00) .... The penalty for each subsequent conviction of any violation of this chapter or this act, shall be one thousand dollars ($1,000.00).
These provisions should not be read in isolation. N.J.S.A. 45:9-22 should be construed in the light of N.J.S.A. 45:9-26.
The Appellate Division reasoned that “first offense” meant a “first offender” and therefore only one penalty of $200 could be assessed. This is a reasonable conclusion. A “first” offense contemplates that there may be a second. Yet, how would that construction apply to the 95 individuals of Count V? The majority's interpretation would mean that, if the 95 were improperly injected a second time prior to a first conviction, each of those occasions would also be a “first offense.” Further, if the subsequent improper conduct occurred after this conviction, it would seem that the penalty would be limited to $500. Thus, there would be the incongruous situation of an $18,400 penalty for the first offense and a $500 penalty for precisely the same acts leading to a second conviction.
When the Legislature wanted to apply a separate penalty for each offense in Title 45, it did so. See, e. g., N.J.S.A. 45:9-22.1 (“for each offense”); N.J.S.A. 45:9-42.21 (“for each such offense”); N.J.S.A. 45:9-55 (“for each offense”); N.J.S.A. 45:9B-14 (“for each offense”).3 Furthermore, the Legislature has now seen fit to prescribe uniform standards for license revocation, *43suspension and other disciplinary proceedings to be applied by boards regulating various professionals such as accountants, architects, dentists, optometrists and doctors. N.J.S.A. 45:1-14 et seq. Under this act the penalty provision differentiates between a first and second offense, the maximum fine being $2,500 for the first offense and $5,000 for the second. N.J.S.A. 45:1-25. The statute significantly defines
each transaction or statutory violation . . . [as] a separate offense; provided, however, a second or subsequent offense shall not be deemed to exist unless an administrative or court order has been entered in a prior, separate and independent proceeding. [N.J.S.A. 45:1-25]
Accordingly, a fair reading of N.J.S.A. 45:9-22 and N.J.S.A. 45:9-26 is to equate a first offense with a first conviction.
The majority reasons that the use of the word “penalties” in N.J.S.A. 45:9-22 suggests that the Legislature intended more than one $200 penalty could lawfully be assessed upon the first conviction. I respectfully disagree. The “penalties” referred to are the $200 for a first offense and the $100 penalty for failure to conspicuously display the doctor’s name at his office entrance. See 83 N.J. at 32-33.
The proposition that the statutory language may only be interpreted as understood by a physician of ordinary intelligence is a novel approach that might under other circumstances have some merit. However, no medical expertise is needed to construe what is referred to in this statute. Even if the majority were correct, I hasten to add that the record is utterly devoid of any proof that a physician would have any different understanding of this act than a person of ordinary intelligence. Moreover, given the language of the act and the relative unimportance of any monetary penalty as compared to the loss of one’s license to practice medicine, a doctor of ordinary intelligence could readily interpret the statute as the Appellate Division did.
*44At another point the majority implies that statutory intent is to be determined by legislative intent unexpressed in the language enacted or legislative history. Given the principle that in the absence of clear language construction should be drawn against the State, the majority’s interpretation must fail because the Legislature did not expressly authorize more than a $200 fine for each violation. When the Legislature wanted to authorize more than one fine for a first offense it did so explicitly by revising the penalty provision to define “each transaction or statutory violation . . . [as] a separate offense.” N.J.S.A. 45:1-25. It has not done so in this case.
The majority’s reliance upon In re Wolfe, 160 N.J.Super. 114 (App.Div.1978), certif. den. 78 N.J. 406 (1978), and State v. Elmwood Terrace, Inc., 85 N.J.Super. 240 (App.Div.1964), is misplaced. In In re Wolfe, Dr. Wolfe was charged with five different types of violations in five counts. One count alleged that he violated N.J.S.A. 45:9-16(g) by employing his wife to practice medicine and surgery. He had improperly employed her for 434 days and presumably she practiced on each of those days on different people. The Board assessed a penalty against him of $43,400 ($100 per violation). The Appellate Division, noting that N.J.S.A. 45:9-22 and 45:9-26 are to be strictly construed, held that the Board was restricted to imposing a penalty not to exceed $200 and modified the Board's order accordingly. So in the instant case the Appellate Division relying upon In re Wolfe held that the total maximum penalty for Counts 2, 5, 6, 7 and 9, constituting the same type of violation (gross malpractice, gross negligence and incompetence), could only be $200. It did not hold that DeMarco could not be fined $200 for each of the remaining six counts (3, 4, 8, 10, 11 and 12) which dealt with violations of a different nature, such as failure to comply with a State Medical Board order. Rather, it impliedly held that DeMarco’s conduct did not constitute a violation of the statute as alleged in those six counts.
*45In Elmwood Terrace, a municipal ordinance required landlords to furnish heat at a prescribed minimum temperature in every room in the building. The ordinance provided for fines of up to $100 for violations, each day constituting a separate offense. The landlord violated the heating standard in 17 different apartments and was charged in 17 counts, one for each unit. The court, after commenting that the proofs for each apartment unit differed, held that there were 17 separate violations; the gravamen of the offense was failure to furnish the heat to each individual occupied living space. The ordinance involved was not at all comparable to the statutory provisions considered in this case.
The majority concedes that “[n]o one shall be punished for a crime unless both that crime and its punishment are clearly set forth in positive law.” 83 N.J. at 36. (emphasis added). That is the key to the defect in the statute—which has now been rectified. The Court lays great stress on the overall design of the statute to protect the public. That design was substantially met when the license to practice medicine and surgery was revoked. Both the Hearing Examiner (former Justice Francis) and a unanimous Appellate Division seem to be of this opinion. I do not condone the heinous activities of the defendant and join fully in the Court’s condemnation, so graphically described, of Dr. DeMarco’s flagrant abuse of the use of his license as a physician. However, his egregious conduct does not justify transgression of well-established principles of criminal jurisprudence.
I would affirm the judgment of the Appellate Division.
Justice POLLOCK joins in this dissent.
For reversal and reinstatement in part —Chief Justice WILENTZ and Justices SULLIVAN, PASHMAN, CLIFFORD and HANDLER—5.
For affirmance—Justices SCHREIBER and POLLOCK—2.
This provision may have been repealed by L. 1978, c. 73, § 13, N.J.S.A. 45:1-26, and superseded by L. 1978, c. 73, § 12, N.J.S.A. 45:1-25.
This provision may have been repealed and superseded. See note 1.
These provisions may have been repealed and superseded. See note 1.