author: Collester, J. A. D. Conford, S. J. A. D.

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. ARTHUR HUMPHREYS, JR., DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued April 8, 1968 —
    Decided June 26, 1968.

      Before Judges Conford, Collestee and Labkecque.

      Mr. Frank V. Walsh, Jr., assigned counsel, argued the cause for appellant.

      Mr. William L. Boyan, Assistant County Prosecutor, argued the cause for respondent {Mr. Vincent Panaro, County Prosecutor, attorney).
   The opinion of the court was delivered by

Collester, J. A. D.

Defendant Arthur Humphreys, Jr. appeals from convictions of breaking and entering with intent to steal (N. J. S. 24:94-1), carrying weapons in an automobile without first having obtained a permit to do so (N. J. S. 24:151-41), and unlawful possession of a narcotic drug (N. J. S. A. 24:18-4). Two others, James Thomas and Roy Goins, were jointly indicted with defendant Humphreys for the first two offenses. On the day of the trial a severance was granted to Goins, who was unavailable. Thomas, who was jointly tried with Humphreys, was also found guilty, but this appeal is by Humphreys alone.

The State’s proofs established that during the morning business hours of November 14, 1966 Goins drove his car, in which the defendant and Thomas were passengers, into a parking lot near the State Labor and Industry building in Trenton. State Trooper Thomas Carr, who was on the 12th floor of the building maintaining a surveillance of the lot with the aid of binoculars, saw Goins leave his parked car and walk over to a white Buick automobile parked four or five cars away. The Buick was owned by Marie Doran, an employee of the Division of Employment Security, who had parked it in the lot earlier when she went to work. Carr said Goins looked into the Buick and then walked back to his own vehicle. Thereafter Goins again approached the Buick but returned to his own car when another automobile entered the parking lot. Goins opened the trunk of his car, went to the driver’s side and then returned to the Buick. Carr observed Goins poking what appeared to be a wire coat hanger through the window of the Doran car. The trooper contacted a patrol car by radio and directed it to block the exit. When another automobile drove into the lot Goins stopped working the wire through the car window, returned to his own car and attempted to drive out of the exit. He was intercepted by the police. An examination of the Buiek showed the door was ajar and the latch lifted up. There were scratch marks on the rubber sealer between the windows.

A search of the Goins car revealed a rolled up wire coat hanger concealed under the front seat where the defendant had been seated. The three men were taken to the police headquarters in the State Capitol for questioning.

Thereafter, Carr with two other officers returned with Goins to the parking lot where the latter’s car was parked. After Carr entered the vehicle he noticed a pearl-handled .38-calibex revolver protruding from the back of the rear seat. An examination indicated it was cocked and fully loaded. A further search revealed a .32-caliber loaded pistol concealed underneath the rear seat. When Goins was questioned about the guns he professed to have no knowledge of who owned them. Sometime later he said they belonged to him.

A further search of the vehicle turned up marijuana seeds in the console compartment between the front bucket seats and an envelope containing marijuana under the floor mat on the driver’s side of the car. A search of Thomas uncovered a paper bag containing marijuana. An examination of vegetative matter found in Humphreys’ shirt and jacket pockets revealed that ;t was marijuana.

Defendant denied that he committed the crimes charged in -the indictments. He testified that he asked Goins why he was going into the parking lot and that Goins replied he was going there to urinate. He said he had no knowledge of where Goins went after he left the car and denied that he ever saw the wire hanger or the guns. He further denied that he ever had marijuana in his possession.

I

The first point urged by defendant for a reversal pertains to his conviction of carrying weapons in an automobile without having first obtained a permit to carry the same. N. J. S. 2A :151-41. He alleges the court erred by including in its charge to the jury the provisions of N. J. S. 2A :151-7, which are as follows:

“The presence of a firearm * * * in a vehicle is presumptive evidence of possession by all persons occupying the vehicle at the time.”

Since no objection was made to the charge, as required by R. R. 3:7-7(b), no basis for appellate review exists unless the alleged error in the charge qualifies as plain error. R. R. 1:5-1 (a); State v. Corby, 28 N. J. 106, 108 (1958).

Defendant contends that by charging the statutory presumption the court vitiated his constitutional presumption of innocence and that, in any event, the statute should not have been applied to the facts of the case.

It is, of course, well settled that a person accused of crime enters upon his trial clothed with the presumption of innocence and that he can be convicted only by proof beyond a reasonable doubt. However, that presumption of innocence may be overcome, not only by direct proof, but, in many eases, when the facts are not enough, by the weight of a countervailing legislative presumption. Yee Hem v. United States, 268 U. S. 178, 184-185, 45 S. Ct. 470, 69 L. Ed. 904 (1925). The Legislature may declare that certain facts create a presumption which, if reasonable, requires an explanation by the accused. In order that a legislative presumption that one fact shall constitute prima facie evidence of the main fact in issue does not constitute a denial of due process of law, it is only essential that there shall be a rational connection between the fact proved and the ultimate fact presumed, and that the inference of fact from proof of another shall not be so unreasonable as to be a purely arbitrary mandate. Yee Hem v. United States, supra, at p. 183, 45 S. Ct. 470; Tot v. United States, 319 U. S. 463, 63 S. Ct. 1241, 87 L. Ed. 1519 (1943) ; see also State v. Giordano, 121 N. J. L. 469 (Sup. Ct. 1939); State v. Lisena, 129 N. J. L. 569 (Sup. Ct. 1943), affirmed 131 N. J. L. 39 (E.& A. 1943).

N. J. S. 2A:3 51-7 is a legislative evidentiary rule which provides that the presence of a firearm in a vehicle is presumptive evidence of possession by all persons occupying the vehicle. There is a rational connection between the fact proved and the ultimate fact presumed. It does not shift the burden of proof of guilt nor deprive a defendant of due process. It means only that the accused must go forward with an explanation to rebut the presumption. State v. Laster, 69 N. J. Super. 504, 508 (App. Div. 1961). When the accused offers evidence to rebut the presumption the issue ordinarily is a matter for determination by the jury. The only exception would be where the court concluded that reasonable men could not differ in accepting as true the evidence adduced by the defendant to overcome the statutory presumption, in which case the court would enter a judgment of acquittal. We conclude that N. J. S. 2A,: 151-7 is constitutionally valid. See State v. Blanca, 100 N. J. Super. 241 (App. Div. 1968), decided April 2, 1968. Cf. People v. Russo, 303 N. Y. 673, 102 N. E. 2d 834 (Ct. App. 1951), affirming 278 App. Div. 98, 103 N. Y. S. 2d 603 (App. Div. 1950); People v. Terra, 303 N. Y. 332, 102 N. E. 2d 576 (Ct. App. 1951).

In support of his contention that the statutory presumption was not applicable to the facts in this case defendant places reliance on State v. Lewis, 93 N. J. Super. 212 (App. Div. 1966), certiorari denied 386 U. S. 986, 87 S. Ct. 1297, 18 L. Ed. 2d 238 (1967). That case is distinguiáhable on the facts. There, a gun was found concealed in the pocket of a jacket on the front seat of a car in which Lewis and six others had been riding. The jacket was not shown to be Lewis’. Lewis had been sitting in the back seat and was not in the car when the jacket and gun were found.

In the present case the evidence showed that defendant had been riding on the front passenger seat of the car before he was taken into custody. When Trooper Carr thereafter returned to the car with Goins he sat in the same seat. The trooper’s testimony indicates that while so seated he observed the .38-caliber revolver to be clearly visible, protruding from the back seat of the car. A factually similar case is State v. Blanca, supra, where this court held that the trial judge did not commit error in charging the provisions of N. J. S. 2A :151-7.

We hold that it was not error to charge the statutory presumption. If defendant desired further elaboration on the issue of possession, he should have requested it. Instead, he made no objection, apparently relying upon the strength of his own proofs and the court’s instructions to the jury that the presumption, as charged, did not relieve the State of its obligation to prove defendant’s guilt of unlawful possession of a firearm beyond a reasonable doubt. The credibility of the proofs was for the jury, which could have concluded that defendant had acted as a lookout for Goins and that the guns in the car were for the use of all the occupants. We find no plain error.

TI

Points II and III urged by defendant for reversal concern the indictment of breaking and entering the Doran car with the intent to steal. Since both defendant and the co-defendant Thomas remained in the Goins’ car while Goins sought to open the caT door of the Doran car, the court told the jury they were being charged as aiders and abettors under N. J. S. 2A: 85-14. The court charged the jury in part as follows:

“Any person who aids, abets, counsels, commands, evidences or procures another to commit a crime is punishable as a principal.
This means that not only is the person who actually commits the criminal act responsible for it but those who are there knowingly aiding and abetting are also responsible even though they did not actually commit the act.
If you find that either defendant who is alleged to have aided and abetted this crime or either of these crimes had no knowledge of the planning or committing of the crime or crimes, then, of course the defendant lacked any criminal intent and is not guilty.

No objection was made to the charge. However, defendant now urges the court committed plain error in charging the law relating to aiding and abetting because the evidence showed only that he was present during the commission of the crime by Goins and the State failed to prove that he actually participated and aided and abetted in the crime itself.

The undisputed rule is that those who aid or abet in the commission of a crime are principals and all are equally guilty. It is also generally accepted that proof that a person is present at the commission of a crime without disapproving or opposing it, is evidence from which, in connection with other circumstances, it is competent for the jury to infer that he assented thereto, lent to it his countenance and approval, and was thereby aiding and abetting the same. State v. De Falco, 8 N. J. Super. 295, 299 (App. Div. 1950) ; State v. Smith, 32 N. J. 501, 521 (1960).

In this case the evidence indicated that the wire coat hanger used by Goins to open the car door was found under the seat occupied by defendant and that a loaded revolver was in plain view on the rear seat. These facts, together with other testimony referred to at the outset of this opinion and the logical inferences to be drawn therefrom, clearly warranted the court’s charge relating to aiding and abetting. There was no plain error.

Defendant also contends that the court committed plain error in charging (as set out above) that he could not be convicted if he had no knowledge of the planning and committing of the crime because that would indicate a lack of criminal intent. He argues that such language suggested to the jury that mere knowledge of Goins’ commission of a crime, without defendant’s participation, was sufficient to justify a conviction. We do not believe that the jury would see the implication now suggested by defendant in lifting this sentence out of its context in the charge. In any event, we find no plain error requiring a reversal.

Ill

■ After defendant was taken into custody the pockets of his. shirt and jacket were turned inside out and the contents thereof, which included vegetative matter, were subjected to microscopic and chemical analysis which indicated the presence of particles of marijuana. Defendant argues that the quantity of marijuana found was so minute as not to constitute possession of a narcotic drug proscribed by N. J. S. A. 24:18-4.

. Defendant places reliance on Pelham v. State, 164 Tex. Cr. R. 226, 298 S. W. 2d 171 (Ct. App. 1957); a factually similar' case, where scrapings from the accused’s pants pocket on microscopic examination revealed the' presence of marijuana. The court- there said that the use commonly made of marijuana is to smoke it in cigarettes — that it is not taken - internally or by hypodermic needles as are other narcotics. In construing the statute the Texas court concluded that to constitute the unlawful act of possessing marijuana there must be possessed an amount sufficient to be applied to the use commonly made thereof and that the infinitésima] quantity found in the scrapings did not establish possession of a narcotic within the meaning of the statute.

The rationale of the Pelham case has been rejected by other courts which hold that the quantity of marijuana found in the possession of the accused is irrelevant. Duran v. People, 145 Colo. 563, 360 P. 2d 132 (Sup. Ct. 1961); Mickens v. People, 148 Colo. 237, 365 P. 2d 679 (Sup. Ct. 1961), and see Annotation, “Narcotic-Possession-What Constitutes,” 91 A. L. R. 2d 810, at pp. 829-830 (1963); contra cases, ibid., at pp. 830-831.

In our State the general rule is that the quantity of narcotic drugs found in a person’s possession is immaterial. State v. McDonald, 92 N. J. Super. 448, 450-452 (App. Div. 1966) (heroin). We see no logical reason to draw a distinction between drugs which are taken internally and marijuana which is smoked. The statute, N. J. S. A. 28:18-4, denounces the possession of any quantity of an illicit narcotic drug.

Affirmed.

Conford, S. J. A. D.

(dissenting, in part). I concur in the affirmance of the convictions for breaking and entering with intent to steal and possession of a narcotic drug. I dissent from the affirmance of the conviction for carrying weapons in an automobile without a permit.

I am satisfied that N. J. S. 2A :151-7, which provides that “the presence of a firearm * * * in a vehicle is presumptive evidence of possession by all persons occupying the vehicle at the time” is unconstitutional, and that reading the statute to the jury was plain error, as it had the manifest capacity for injustice by seriously prejudicing the defendant in relation to the crucial issue of his alleged guilt of “carrying” guns in an automobile. N. J. S. 2A :151-4A.

The statement of facts in the court’s opinion should be supplemented by defendant Humphreys’ testimony. He said that on the day in question he and one Goins, owner of the ear, travelled to Eort Dix to seek employment. Finding none available, they returned to Trenton where Goins stopped to see defendant Thomas. Thomas entered the car and was being taken home when Goins drove into the parking lot for the purpose of urinating. Goins left the car for a few minutes, while defendant and Thomas remained, defendant occupying the front passenger’s seat, Thomas the rear seat. Goins returned and drove out of the lot, when he was intercepted by the police. Defendant testified he neither saw the guns that day nor knew that they were in the car. There was other testimony that Goins had both admitted and denied ownership of the guns to the police and that defendant Thomas had been in possession of one of the guns a day or two before the events in question. There was no testimony connecting defendant with either gun other than his bare presence in the vehicle in the circumstances stated in the court’s opinion.

The testimony indicates that one of the guns was found by the police by searching under the back seat. The other gun was seen by one of the state troopers upon returning to the car after bringing the suspects to headquarters. He said he was sitting in the front passenger’s seat; “it was a sunny day and as I looked in the back seat I saw a shining object protruding from the rear of the seat. I * * * depressed the seat, and there was a pear-handled pistol.” It will be noted, however, that no one was occupying the rear seat at the time of the trooper’s observation, whereas at all times during defendant’s occupancy of the vehicle, he was in the front and Thomas was in the rear seat.

Defendant moved for acquittal on the gun charge at the end of the State’s case, contending that the “presumption” statute, N. J. S. 2A :151-7, was unconstitutional, and relying upon our decision in State v. Lewis, 93 N. J. Super. 212 (App. Div. 1966). The court denied the motion, taking the position that State v. Lewis had not declared the statute unconstitutional and that in and of itself the statute called fox denial of the motion without the need to analyze the sufficiency of the other evidence in the case.

In charging the jury, the court’s entire instructions in specific reference to the gun charge, aside from reading the indictment and the statute prohibiting carrying guns without a permit, were as follows:

“Now, under this indictment and under this statute as the lawyers have mentioned, there is another applicable statute providing for presumptive evidence. That statute is 2A :151-7, entitled ‘Firearms in vehicles’, and it reads (reading) :
‘The presence of a firearm or any grenade, bomb or other explosive in a vehicle is presumptive evidence of possession by all persons occupying the vehicle at the time’.
Eliminating those few words not applicable here it would read:
‘The presence of a firearm in a vehicle is presumptive evidence of the possession by all persons occupying the vehicle at the time.’
Now, this is a factor ivhich you may consider in determining the guilt or innocence of the defendants charged along with all of the other evidence in the case bearing upon this question. However, you must still he satisfied of the guilt of such defendant beyond a reasonable doubt, and as I shall soon explain the terminology to you, in order to return a verdict of guilty on the charge of carrying a firearm in an automobile.
The presumption that the defendant is innocent and the requirement that the State must prove the guilt of the defendant beyond a reasonable doubt is in this f V] [no) way altered, diluted or eliminated by this statute providing that the presence of a firearm in a vehicle is presumptive of evidence of possession by all persons occupying the vehicle at the same lime.” (emphasis added.)

Later in the charge are found the standard instructions on presumption of innocence and the State’s burden of proof beyond a reasonable doubt in relation to all three crimes. The charge is devoid of any definition of possession and of the necessity that defendant shall have had knowledge and dominion over and immediate control of the weapons. See State v. Labato, 7 N. J. 137, 148 (1951); cf. State v. Blanca, 100 N. J. Super. 241, 250 (App. Div. 1968) (“the trial judge * * * told [the jury] that conviction required proof by the State beyond a reasonable doubt that the occupant must have been aware of the presence of the gun and able to exercise intentional control over it.”).

Defendant failed to object to the charge, but in view of his vigorous objection on the motion to acquit to the State’s use of the statutory presumption and the debatability of the sufficiency of the evidence, aside from the presumption, to connect him with possession of the gun, I regard the interests of justice as plainly requiring a determination of the legal justification for the trial court’s submission of the presumption as a “factor” which the jurjf might consider in deciding defendant’s guilt and as to the potential capacity thereof for producing a prejudicial result.

The validity of a statutory presumption of a criminally incriminatory fact, from a due process standpoint, depends upon the existence of a “rational connection between the fact proved and the ultimate fact presumed,” and the statute is invalid where the inference of connection is “arbitrary because of lack of connection between the two in common experience.” Tot v. United States, 319 U. S. 463, 467-468, 63 S. Ct. 1241, 1245, 87 L. Ed. 1519 (1943); Bailey v. State of Alabama, 219 U. S. 219, 31 S. Ct. 145, 55 L. Ed. 191 (1911); United States v. Gainey, 380 U. S. 63, 85 S. Ct. 754, 13 L. Ed. 2d 658 (1965); United States v. Romano, 382 U. S. 136, 86 S. Ct. 279, 15 L. Ed. 2d 210 (1965).

In Bailey v. Alabama, involving a state statute penalizing the fraudulent acceptance of a consideration on an agreement to render personal services, the court struck down as invalid a statutory presumption that leaving work without just cause and not repaying the consideration constituted prima facie evidence of fraudulent intent in accepting the eonsideration. The decision was based, among other things, upon the absence of rational inferential connection between leaving the job and fraudulent intent in previously accepting compensation 219 U. S., at pp. 238-239, 31 S. Ct. 145. In rejecting the State’s argument that the presumption was valid because it did not compel a conviction, the court said:

“We are not impressed with the argument that the supreme court of Alabama has construed the amendment to mean that the jury is not controlled by the presumption, if unrebutted, and still may find the accused not guilty. That court, in its opinion, said: ‘Again, it must be borne in mind that the rule of evidence fixed by the statute does not make it the duty of the jury to convict on the evidence referred to in the enactment, if unrebutted, whether satisfied thereby of the guilt of the accused beyond a reasonable doubt or not. On the contrary, with such evidence before them, the jury are still left free to find the accused guilty or not guilfy, according as they may be satisfied of his guilt or not, by the whole evidence.’ [Bailey v. State] 161 Ala. 78, 49 So. 886.
But the controlling construction of the statute is the affirmance of this judgment of conviction. Jt is not sufficient to declare that the statute does not make it the duty of the jury to convict, where there is no other evidence but the breach of the contract and the failure to pay the debt. The point is that, in such a case, the statute authorises the jury to convict. It is not enough to say that the jury may not accept that evidence as alone sufficient; for the jury may accept it, and they have the express warrant of the statute to accept it as a basis for their verdict. And it is in this light that the validity of the statute must be determined.
It is urged that the time and circumstances of the departure from service may be such as to raise not only an inference, but a strong inference, of fraudulent intent. There was no need to create a statutory presumption, and it was not created for such a case. Where circumstances are shown permitting a fair inference of fraudulent purpose, the case falls within the rule of Ex parte Riley [94 Ala. 82, 10 So. 528] (supra), which governed prosecutions under the statute before the amendment was made. The ‘difficulty,’ which admittedly the amendment was intended to surmount, did not exist where natural inferences sufficed. Plainly, the object of the statute was to hit cases which were destitute of such inferences, and to provide that the mere breach of the contract and the mere failure to pay the debt might do duty in their absence.” (at pp. 234-235, at p. 149 of 31 S. Ct. emphasis by the Supreme Court)

In Tot v. United States, supra, which dealt with a federal statute denouncing the receiving in interstate commerce, by a person previously convicted of a crime of violence, of firearms or ammunition, the statutory presumption involved was that possession of any firearms or ammunition by such a person should be “presumptive evidence” of guilt of the crime. In holding the presumption invalid, the court recognized that legislatures frequently adopt evidential presumptions for use in criminal prosecutions on the basis that the accused is in a better position than the Government to produce evidence as to the truth of the projected incriminating fact (319 U. S., at pp. 467, 469, 63 S. Ct. 1241). But this motivation was held not to suffice to save the presumption if it did not meet the “controlling” test of validity — whether there is a “rational connection between the facts proved and the fact presumed” (at p. 467, at p. 1245 of 63 S. Ct.) — there deemed absent. The court further said in this regard:

“Doubtless the defendants in these cases knew better than anyone else whether they acquired the firearms or ammunition in interstate commerce. It would, therefore, be a convenience to the Government to rely upon the presumption and east on the defendants the burden of coming forward with evidence to rebut it. But, as we have shown, it is not permissible thus to shift the burden by arbitrarily making one fact, which has no relevance to guilt of the offense, the occasion of casting on the defendant the obligation of exculpation.” (at p. 469, at p. 1246 of 63 S. Ct.)

Of perhaps closest relevance to the situation here presented is United States v. Romano, supra, which was a review of defendants’ convictions of possession, custody and control of an unregistered still. The statute provided that the presence of the defendant at the site of an illegal still “shall be deemed sufficient evidence to authorize conviction, unless the defendant explains such presence to the satisfaction of the jury * * *” The Supreme Court sustained a decision of the Court of Appeals for the Second Circuit that the reading of this provision to the trial jury required reversal because the statutory inference violated the due process clause of the Fifth Amendment. The test of rationality of connection between “presence” and “possession” was held not to be met. The court said:

“It may be, of course, that Congress has the power to make presence at an illegal still a punishable crime, but we find no clear indication that it intended to so exercise this power. The crime remains possession, not presence, and, with all due deference to the judgment of Congress, the former may not constitutionally be inferred from the latter.” (382 U. S., at p. 144, 86 S. Ct., at p. 284)

In Romano the court distinguished the statutory presumption of presence as sufficing to convict of operation of a still, held valid by it in United States v. Gainey, 380 U. S. 63, 85 S. Ct. 754, 13 L. Ed. 2d 658 (1965), as based upon a much stronger foundation of rationality of the inference than as applied to the inference of possession and control, since a mere aider and abettor is guilty as an operator. 382 U. S., at p. 141, 86 S. Ct. 279.

Pertinent to the emphasis by the majority of this court, distinguishing State v. Lewis, supra (of which, more infra), on the consideration that on the basis of all the evidence in the present case the jury could have found defendant guilty without use of the statutory presumption, the Supreme Court in Romano said:

“If we were reviewing only the sufficency of the evidence to support the verdict on Count 1 [possession], that conviction would be sustained. There was, as the Court of Appeals recognized, ample evidence in addition to presence at the still to support the charge of possession of an illegal still. But here, in addition to a standard instruction on reasonable doubt, the jury was told that the defendants’ presence at the still ‘shall be deemed sufficient evidence to authorize conviction.’ This latter instruction may have been given considerable weight by the jury; the jury may have disbelieved or disregarded the other evidence of possession and convicted these defendants on the evidence of presence alone. "We thus agree with (lie Court of Appeals that the validity of the statutory inference in the disputed instruction must be faced and decided.” (382 U. S., at pp. 138-139, 86 S. Ct., at p. 281)

Identical considerations are, of course, involved in the present case.

We are thus brought to the critical question: Is there a rational inferential connection between the mere physical presence of an individual in an automobile and his possession of a gun located therein. The reach of the inquiry must extend to whether such inference necessarily exists, since the statutory presumption is not conditional upon anything more than simple occupancy of the vehicle by the accused, per se, and simple presence of the gun therein, per se, no matter where. It is self-evident that the rational connection is absent, e. g., in the case of a hitchhiker picked up by a motorist and arrested a few minutes later because of the presence of a gun locked in the glove compartment of the vehicle.

This court has twice recently found that the presumption in question exceeds reason. State v. Lewis; State v. Blanca, both supra. In State v. Lewis it was held that the statute would not permit the sustaining of a verdict of guilt of possession of a gun notwithstanding the evidence justified an inference that there were present in the vehicle at one and the same time both the defendant and a gun. In that case the gun was inside a coat jacket belonging to another person. Although the opinion speaks in terms of the unconstitutionality of any “construction” of the statute which would sustain a conviction under the facts established (93 N. J. Super., at p. 214), it is inescapable that in effect the court interdicted the use of the statutory presumption to found a verdict of guilt ■ — and because of its arbitrariness — -citing the Tot and Romano cases, supra. That the court might have sustained the conviction were the totality of the evidence rationally productive of an inference of the defendant’s possession would not rehabilitate the presumption as such — since the presumption can never stand on its own feet to justify a conviction.

It is true that in State v. Blanca, supra, this court sustained a conviction of carrying a gun in an automobile as against the appellate argument that the trial court had read the statutory presumption to the jury. As in Lewis, the court pointed out that the statutory presumption could not validate a conviction if the totality of facts made the literal application thereof “violate common sense,” e. g., “if an owner-driver of an automobile had a gun locked in the glove compartment or trunk of his car, to which he held the key” (100 N. J. Super., at p. 249), and other occupants of the car were sought to be held as possessors under the statutory presumption. In that case, however, as noted above, the trial court, although reading the statute, had taken care to instruct the jury, in the same context, that to convict a given defendant the State was required to prove beyond a reasonable doubt that he was aware of the presence of the guns in the automobile and was able to exercise intentional control over them. No such instructions were given in the instant case. Moreover, in Blanca, the evidence connecting the defendant with possession of the guns in the vehicle was overwhelming. See 100 N. J. Super., at p. 250. I read Blanca as a holding that under all the circumstances, including the whole charge on the subject, the reading of the statutory presumption to the jury did not constitute prejudicial error — not that the statute is valid — indeed, the implication of the opinion is clearly to the contrary.

I find nothing persuasive in the opinion of the Appellate Division of the Supreme Court of New York in People v. Russo, 278 App. Div. 98, 103 N. Y. S. 2d 603 (1951), affirmed without opinion in 303 N. Y. 673, 102 N. E. 2d 834 (Ct. App. 1951), sustaining the validity of a similar statutory presumption. I regard the Lewis and Blanca cases as opposed to its reasoning.

I thus arrive at the ultimate issue — Did the charging of the presumption in this case prejudice the defendant to an extent which should be regarded as a manifest denial of his rights, amounting to plain error? My conclusion is in the affirmative.

The evidence connecting this appellant with the guns was tenuous at best. I need not say whether I would vote to affirm the conviction of carrying the guns had the trial judge not alluded in his charge to the “presumptive evidence” of possession constituted by defendant’s presence in the car. Like the United States Supreme Court in Romano (excerpt quoted above), where the court conceded there was considerable evidence of that appellant’s guilty possession of the still apart from the statutory presumption but nevertheless reversed the conviction, I am convinced that the throwing into the evidential scale against the present defendant of the statutory presumption may well have induced the jury to take that presumption literally — i. e., of itself to warrant their finding of defendant’s guilt regardless of their opinion of the weight of the other evidence, such as it was, relative to defendant’s possession.

The foregoing'observations take added force from the utter absence from the charge of any guidance to the jury — apart from the irrational statutory presumption — by which to exercise their function of weighing the proofs for their sufficiency to warrant a conclusion of “possession” or “carrying” of the weapons. Compare the instructions in Blanca, supra. The term “presumption”, or “presumptive”, so provocative of controversy among legal scholars, means to laymen a highly probable or likely assumption of fact. In this context the court’s telling the jury, in effect, that there was “presumptive evidence” of defendant’s guilt could not have failed to carry great if not controlling weight with them. It either completely neutralized the instructions on presumption of innocence and the rule of reasonable doubt or so eviscerated their impact as to have left the jury without any significant guide as to how to decide the gun issue other than the express direction, in effect, that presence in the car was enough to convict. Giving due weight to defendant’s attack upon the validity of the presumption on the motion to acquit, the prejudicial effect of the charge, as just appraised, should be regarded as possessing a "clear capacity to bring about an unjust result,” within the plain error rule. Vespe v. DiMarco, 43 N. J. 430, 438 (1964).

I would reverse the conviction for carrying weapons in an automobile.

       It, may be assumed that the word “this” is a reporter’s error and that the court used the word “no.” Defendant does not argue the contrary.

       I may add the view that even were the instant statutory presumption a valid one it would constitute bad and possibly prejudicial practice to inform the jury of it. The only legitimate function of this kind of presumption is to shift the burden of coming forward with evidence relative to the issue to the defendant — i. e.. to obviate an acquittal by the judge in a jury-tried case. State v Laster, 69 N. J. Super. 504 (App. Div. 1961). Thus, the presumption fully serves its purpose in guiding the judge in exercising his function of regulating the submission of the issues to the jury: and since the presumption is not of itself substantive evidence there is no need to tell the jury about it, and indeed only the risk of harm to the defendant in doing so. Cf. State v. Gardner, 51 N. J. 444 (1968), involving the judge-made rule shifting the burden of coming forward with evidence in a criminal case (on the defense of self-defense) to the defendant, citing and quoting with approval from State v. Chiarello, 69 N. J. Super. 479, 503 (App. Div. 1961), certification denied 36 N. J. 301 (1962), where we adopted the following expression of another court: “The shifting of the burden of evidence is governed by rules of procedure which are designed solely for the guidance of the court; with respect to their observance, operation, or effect, the jury has no function to perform.”


source: Caselaw Access Project

author: Collester, J. A. D.

license: Public Domain

text:
    MARGARET H. BOOK AND EDWIN A. BOOK, PLAINTIFFSAPPELLANTS, v. AGUTH ACHIM ANCHAI OF FREEHOLD, NEW JERSEY, A NEW JERSEY CORPORATION, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued June 3, 1968 —
    Decided June 28, 1968.

      Before Judges Cojsteoed, Collestee and Labeecque.

      Mr. Kenneth E. Joel argued the cause for appellants.

      Mr. James J. McGovern argued the cause for respondent (Messrs. Vaecaro and Osborne, attorneys).
   The opinion of the court was delivered by

Collester, J. A. D.

Plaintiffs appeal from an order granting defendant’s motion for summary judgment on the ground that plaintiffs’ personal injury negligence action was barred by the immunity granted the defendant under N. J. 8. 2A :53A-7.

The facts are not in dispute. Plaintiff Margaret Book, a resident of Earmingdale, was a regular attendant during 1965 of the weekly Wednesday night bingo games operated by defendant Aguth Aehim Anehai, a Jewish synagogue, at its premises in Ereehold. Mrs. Book was not a member of defendant’s congregation. She was a member of the Catholic faith and went to the synagogue for the solo purpose of playing bingo. On Wednesday evening, September 1, 1965, Mrs. Book paid her $1 admission charge at the synagogue (for which she received a “double” bingo card), purchased five “extra” cards, seated herself at one of the tables and thereafter participated in the bingo games. Toward the end of the evening the table at which she was seated collapsed and injured her knee.

Mrs. Book brought suit against defendant, in which her husband joined per quod, alleging that the injury she sustained was caused by defendant’s negligence. Defendant answered denying negligence, alleged that Mrs. Book was guilty of contributory negligence and asserted the defense of charitable immunity. Defendant then moved for the entry of a summary judgment contending that under its statutory charitable immunity (N. J. 8. 2A :53A-7) it was entitled to a dismissal of plaintiffs’ action as a matter of law.

It was conceded that the proceeds of the bingo games, after the deduction of expenses, were used by defendant for general religious and charitable purposes. The trial court concluded that Mrs. Book was a “beneficiary” within the meaning of the statute and that since the proceeds of the games were devoted to charitable purposes defendant was entitled to a summary judgment dismissing plaintiffs’ action. This appeal followed.

The pertinent parts of the charitable immunity statute (N. J. S. 2A :53A-7) are as follows:

“No nonprofit corporation, society or association organized exclusively for religious, charitable, educational or hospital purposes shall, except as is hereinafter set forth, be liable to respond in damages to any person who shall suffer damage from the negligence of any agent or servant of such corporation, society or association, where such person is a beneficiary, to whatever degree, of the works of such nonprofit corporation, society or association; provided, however, that such immunity from liability shall not extend to any person who shall suffer damage from the negligence of such corporation, society, or association or of its agents or servants where such person is one unconcerned in and unrelated to and outside of the benefactions of such corporation, society or association * *

N. J. S. 2A :53A-10 provides:

“This act shall be deemed to be remedial and shall be liberally construed so as to afford immunity to the said corporations, societies and associations from liability as provided herein in furtherance of the public policy for the protection of nonprofit corporations, societies and associations organized for religious, charitable, educational or hospital purposes.”

The sole issue in this case is whether Mrs. Book was “a beneficiary, to whatever degree, of the works” of the synagogue, in which event the defendant is immune from this action, or whether she was “unconcerned in and unrelated to and outside the benefactions” of the synagogue, in which event the defendant would be responsible to plaintiffs on ordinary principles of negligence. Anasiewicz v. Sacred Heart Church, 74 N. J. Super. 532, 534-35 (App. Div. 1962), certification denied 38 N. J. 305 (1962).

Plaintiffs argue that the operation of a bingo game for profit is not an enterprise partaking of the character of defendant’s religious and charitable objects and therefore the statutory immunity from liability for negligence does not apply. Defendant contends that the court properly granted its motion for summary judgment. It argues that Mrs. IJpok was a beneficiary of its works because she obtained a social benefit through her attendance at the games.

The test of whether an injured plaintiff is a beneficiary of the “works” of a non profit religious or charitable organization for immunity purposes is whether the organization pleading the immunity was engaged in the performance of the charitable objectives it was organized to advance. Anasiewicz v. Sacred Heart Church, supra, at p. 536.

The facts in this case are readily distinguishable from those urged by defendant in support of its claim of immunity, namely, Anasiewicz v. Sacred Heart Church, supra; Peacock v. Burlington County Historical Society, 95 N. J. Super. 205 (App. Div. 1967), certification denied 50 N. J. 290 (1967), and Hauser v. Y.M.C.A., 91 N. J. Super. 172 (Law Div. 1966), where the injured plaintiffs were the recipients of the benefactions of institutions which were engaged in the performance of their benevolent objectives and the injuries arose in the course of the enjoyment of the benevolent activity.

In the instant case it is obvious that the operation of bingo games for profit was not one of the purposes for which the defendant synagogue was organized. Cf. Blankenship v. Alter, 171 Ohio St. 65, 167 N. E. 2d 922 (Sup. Ct. 1960). The facts that the games were lawful and that their net proceeds were used entirely for charitable or religious purposes do not convert such games to charitable or benevolent “works” so as to clothe the organization with immunity from liability in a tort suit brought by one who is but a patron of the games. Ibid. 167 N. E. 2d, at p. 924; Blatt v. George H. Nettleton Home for Aged Women, 365 Mo. 30, 275 S. W. 2d 344, 346-49 (Sup. Ct. 1955), and see cases cited in Annotation, “Charity - Tort Liability - Immunity,” 25 A. L. R. 2d0 29, § 33, pp. 131-32 (1952). It is also clear that Mrs. Book was not a beneficiary in any degree, of the works of the defendant organization within contemplation of the immunity statute. She was not a member of defendant’s congregation. She liked to play bingo and drove many miles from her home to attend defendant’s games because it was the closest place to her home where bingo was available. Her attendance was for pleasure and she was not there as a recipient of defendant’s beneficence or philanthropy — she had no concern with or relation to defendant’s benefactions. Her status at most was that of a patron of the games who paid an admission charge for the privilege of playing bingo. Cf. Jewell v. St. Peter’s Parish, 10 N. J. Super. 229 (Cty. Ct. 1950), a factually similar case, where the court held that the defendant parish was not immune from a negligence action brought by a paying patron of a social activity of “entertainment, games and amusements, and other social activities” conducted under its auspices which was unrelated to the defendant’s institutional life and work.

We hold that Mrs. Book was not a beneficiary but was a person “unconcerned in and unrelated to and outisde the benefactions” of the synagogue and that the defendant therefore was not clothed with the immunity of N. J. S. 2A :53A-7 but was responsible under the ordinary principles of negligence. Accordingly, the summary judgment entered in favor of defendant is reversed, and the case is remanded for a trial of the issues of negligence and damages raised in the pleadings and pretrial order.

Reversed and remanded.

       While the cited ease antedated the statute and was based on the common law immunity doctrine, it should be noted that the statute did not expand, modify or alter in any way the pre-existing immunity granted to, charitable and religious institutions. See Anasiewicz v. Sacred Heart Church, supra, 74 N. J. Super., at pp. 535-536 (App. Div. 1962).


author: Kolovsky, J. A. D.

text:
    BOARD OF POLICE COMMISSIONERS OF THE BOROUGH OF LEONIA, PLAINTIFF-RESPONDENT, v. PAUL OLSON, PATROLMAN, DEFENDANT-APPELLANT.
    Superior Court of New Jersey-Appellate Division
    Argued June 10, 1968 —
    Decided June 28, 1968.

      Before Judges Gatjlkin, Lewis and Kolovskt.

      Mr. John W. Leyden, Jr. argued the cause for appellant {Messrs. Leyden, Breslin, Monaghan & Leyden, attorneys).

      Mr. Donald A. Sterling argued the cause for respondent.
   The opinion of the court was delivered by

Kolovsky, J. A. D.

Appellant Olson, a patrolman in the police department of the Borough of Leonia, was found guilty, after a hearing on due notice before the board of police commissioners (board), of using “unnecessary force in the handling of a prisoner.” A reprimand and a two-day suspension were imposed by the board.

Olson appealed to the Bergen County Court under N. J. S. A. 40:47-10, which provides that any member of a police department of a municipality which, like Leonia, has not adopted the Civil Service Law,

“who has been convicted of any violation of any of the rules or regulations of such departments by the official or board empowered fo try members of such police department * * * in such municipality, may obtain a review of such conviction by the County Court of the county in which such municipality is situated. * * The court shall retry such charge or charges de novo and either affirm or reverse such conviction. The court may order or adjudge that the applicant be returned to any office or position from which he may have been removed under such conviction and that he be restored to all things he may have lost thereby, and may make such other order or judgment as the court shall deem proper under the circumstances.”

Appellant sought initially to have the County Court dismiss the charge because the board allegedly had no jurisdiction to hear it and to impose the penalty of a reprimand and two days’ suspension, appellant contending that the ordinance granting it such power is invalid. The County Court did not rule on that contention nor roach the merits of the charge. It dismissed the appeal because it concluded that the right to review in the County Court granted by N. J. S. A. 40:47-10 is available only where the penalty imposed is removal, not when it is only a suspension. In so ruling, the court relied on Murley v. Raritan Township, 117 N. J. L. 357 (Sup. Ct. 1937), quoting the following from the opinion in that case:

“Suspensions are a matter of daily occurrence in the discipline of policemen. We think it was not the purpose of the act to give judicial review and trial de novo of every petty infraction of the police rules * * (at p. 358)

But Murley arose under a prior version' of the act granting tenure to policemen. That version limited the right to review to cases in which the officer was “removed from office or employment.” Whatever the merits of the policy considerations referred to in the quotation from Murley, and the County Court obviously deemed them persuasive, decision as to the policy of tenure statutes is for the Legislature, not for the courts. Cf. N. J. S. A. 11 :2A-1.

Both appellant and respondent agree that the present section, N. J. S. A. 40:47-10, authorizes a trial de novo by the County Court whenever a patrolman is convicted on charges, irrespective of the penalty imposed. We concur.

We turn next to a consideration of appellant’s contention that the provisions of the Leonia ordinance, which coneededly purport to grant the board of police commissioners jurisdiction to try the charge against Olson and to impose the penalty it did, are invalid. Since both parties ask that we resolve that issue, we note but pass the preliminary question of whether an attack on the validity of provisions of the police department ordinance may be made in the course of a statutory appeal to the County Court under N. J. S. A. 40:47-10. Cf. Valonis v. Mayor and Tp. Committee of Cinnaminson Tp., 54 N. J. Super. 567 (App. Div. 1959); Harvey v. Poole, 17 N. J. Misc. 165, 7 A. 2d 630 (C. P. 1939).

Ordinance No. 600, “An ordinance to establish, maintain, regulate and control a police department in the Borough of Leonia, and to prescribe and establish just rules and regulations with respect- to such department,” provides for the appointment by the mayor of three or more councilmen to be known as the board of police commissioners, “to have charge of the police department.” The board is given power to supervise and conduct all examinations for patrolmen and for promotions, with appointments and promotions to be made by the board “only by and with the consent and approval of the Borough Council.” With respect to disciplinary proceedings, the ordinance provides:

“Said Board shall also hear and determine all charges and complaints made against members of the Police Department and may dismiss, suspend, or fine, or otherwise punish members of said department for incapacity, misconduct, or disobedience of rules and regulations established by the said Board of Police Commissioners : provided, however, that no man shall be dismissed, demoted, suspended for more than five days, or be fined more than $25.00 without the consent of the Borough Council.”

Appellant contends that R. S. 40:47-l grants the borough council the exclusive power to remove police officers and that therefore, under Carey v. Board of Police of City of Plainfield, 53 N. J. L. 311. (Sup. Ct. 1891), and O’Leary v. Common Council of City of South Amboy, 8 N. J. Misc. 559, 151 A. 53 (Sup. Ct. 1930), the ordinance may not provide that the board shall hear the charges and without the concurrence of the council fix the penalty even though it does not exceed five days suspension or a fine of $25.

Carey and O’Leary arose under statutes and in contexts different from that presented here; neither controls the disposition of this case.

O’Leary involved the City of South Amboy, a city of the third class, as to which the governing statute provided that “the mayor is the head of the police department, and has exclusive power to appoint, suspend and remove policemen” (151 A., at p. 54). The court therefore held that the city council was without power to adopt an ordinance, under what is now R. S. 40:47-l, providing that it, the council, should hear and determine charges made against a police officer.

In Carey v. Board of Police of City of Plainfield, supra, the court held that since the charter of Plainfield conferred the power to remove officers upon its common council, charges against a police officer could not be heard and a suspension imposed by a “board of police” created by municipal ordinance and consisting of the mayor, the president of the common council and the committee on police. However, the provisions of the Plainfield charter authorizing the adoption of police department ordinances, L. 1872, c. 511, § 14, p. 1138, was not as broad in scope as the ordinance power now vested in all municipalities by R. S. 40:47-l, which provides in pertinent part:

“The governing body of every municipality may make, amend, repeal and enforce ordinances to establish, maintain, regulate and control a police department and force, * * * therein; to prescribe and establish rules and regulations for the government and discipline thereof; the appointment, terms and removal of the officers and members thereof, and to prescribe their duties and fix their compensation.”

Contrary to what appellant contends, R. S. 40:47-1 does not specify who has the power to remove members of the police department; it deals only with the power of municipalities to adopt ordinances establishing, maintaining and regulating a police department.

Nor does any other statute specify what particular officer or body in a borough has the power to remove members of the borough police department. We need not decide for the purposes of this case whether R. S. 40:47-1 leaves the governing body of the borough free to choose by ordinance who is to exercise the removal power as applied to members of the police department or whether that power is vested in the borough council by the provisions of N. J. S. A. 40:87-15 and 16 dealing generally with appointive officers of a borough and providing with respect to the officers specified in N. J. S. A. 40 :87-15 (policemen are not among those specified) and “such other officers as the council may deem necessary” that:

“All of these officers * * * shall hold office during the pleasure of the council. No officer shall be removed without being afforded an opportunity to be heard. Unless sooner removed, however, they shall hold office for 1 year and until their successors shall have qualified.”

We are satisfied that in either event an ordinance adopted by a borough council pursuant to B. 8. 40:47-l may provide, as does the Leonia ordinance in the aspects here involved, that the day-to-day management of the affairs of the police department be vested in or delegated to a board of police commissioners established by the ordinance and that the board may conduct a hearing on charges against members of the police department and, without seeking the concurrence or approval of the Council, impose minor disciplinary penalties such as suspension for not more than five days or a $25 fine. Cf. Sastokas v. Borough of Freehold, 134 N. J. L. 305 (Sup. Ct. 1946); Moore v. Borough of Bradley Beach, 87 N. J. L. 391 (Sup. Ct. 1915).

We emphasize that our ruling relates only to the specific provisions of the ordinance involved in the present litigation; we make no determination with respect to the validity or invalidity of any other portion thereof. Further, we note that altogether apart from the question of whether the charge here presented against Olson, “assault and battery upon a prisoner,” constitutes a violation of a duly adopted rule or regulation of the police department, it constitutes misconduct warranting, if proven, disciplinary action under the tenure statute, N. J. S. A. 40 :47-6. In re Cohen, 56 N. J. Super. 502, 507 (App. Div. 1959), certification denied 31 N. J. 297 (1960).

The judgment is reversed and the matter remanded to the County Court so that it may, pursuant to N. J. S. A. 40 :47-10, retry the charge against Olson de novo and if he be found guilty make such order as the court shall deem proper under the circumstances. The borough itself should be joined as a party respondent. No costs on this appeal to either party. We do not retain jurisdiction.


author: Carton, J. A. D.

text:
    WILLIAM T. JACOBS, PLAINTIFF-APPELLANT, v. NEW JERSEY STATE HIGHWAY AUTHORITY, GARDEN STATE PARKWAY, D. LOUIS TONTI, EXECUTIVE DIRECTOR, AND SYLVESTER C. SMITH, CHAIRMAN, DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division.
    Argued June 17, 1968 —
    Decided July 1, 1968.

      Before Judges Goldmann, Kilkenny and Cakton.

      Mr. Frederick E. Popovitch argued the cause for appellant (Messrs. Todian, Romond & Burgess, attorneys).

      Mr. Theodore W. Geiser argued the cause for respondents (Messrs. Pindar, McElroy, Connell & Foley, attorneys; Miss Sonia Napolitano, on the brief).
   The opinion of the court was delivered by

Carton, J. A. D.

The issue in this case is the power of the New Jersey State Highway Authority to adopt a regulation requiring its employees to retire at age 65. Appellant Jacobs, having been forced to retire pursuant to this administrative mandate, filed a complaint in the Chancery Division on August 14, 1967. The cause was transferred to this court in accordance with R. R. 1:27D.

Jacobs was employed by the Authority on September 2, 1954 and, as required by law, joined the Public Employees’ Retirement System effective February 2, 1955. On October 30, 1964 the Authority notified its employees by letter that it had adopted

“* * * a Retirement Policy which provides that ail Authority employees shall retire upon attaining age 65 effective January 1, 1965, with the understanding that the Personnel Committee upon application of a department or Staff Division Head may extend the retirement date of an employee with the approval of the Executive Director.”

The letter notice alluded to a Public Employees’ Retirement System requirement permitting employees to retire at age 60, and making retirement compulsory at 70. The letter also noted: “In 1955 the Public Employees’ Retirement System was integrated with the Federal Social Security System which generally provides for retirement at ages 62 to 65.”

Since Jacobs would attain the age of 65 on April 15, 1965, he was due to retire on that date. In the fall of 1964, however, his retirement date was extended for one year “in order to train a replacement” for him. Jacobs later requested an additional extension but this request was denied and his retirement from service became effective on April 15, 1966. This proceeding followed.

Appellant here assails the power of the Authority to adopt the retirement policy it did. He predicates his attack upon the absence of a grant of such power in the New Jersey Highway Authority Act (N. J. S. A. 27:12B-1 et seq.) and the asserted interdiction of such action in the Public Employees’ Retirement Act (N. J. S. A. 43:15A-1 et seq.).

The Authority’s position is that although the Public Employees’ Retirement Act governs the pension rights of Authority employees (N. J. S. A. 43 :15A-73), it does not affect the Authority’s autonomy over the employment of its personnel, the terms of that employment or its termination. The Authority bases its power to adopt a retirement policy free from outside restraint upon N. J. S. A. 27:12B-5, which provides that the Authority shall have the power, among others:

“(q) To * * * employ such * * * employees and agents as the Authority deems advisable and as may be necessary in its judgment; to fix their compensation; and to promote and discharge such officers, employees and agents; all without regard to the provisions of Title 11 of the Revised Statutes [Civil Service Act! * *

It is clear that by this provision the Legislature has conferred upon the Authority very broad and sweeping powers relating to its personnel. Thus, the Authority is empowered to hire such employees “as the Authority deems advisable and as may be necessary in its judgment” (emphasis added). No limitation is imposed upon the power to “fix their compensation” or “to promote and discharge” such employees.

Underscoring the autonomy granted the Authority by the Legislature in dealing with its personnel is the express exemption of the Authority from compliance with the Civil Service laws. Since one of the primary purposes of the Civil Service Act is to afford tenure to those who come under its protection (State Dept. of Civil Service v. Clark, 15 N. J. 334, 341 (1954); R. S. 11 :4-1), it may reasonably be inferred that the Legislature, by this exemption, intended to give the Authority the widest latitude in its employment practices.

Jacobs argues that he “has a vested right to remain in employment until age 70” by virtue of the provisions of N. J. S. A. 43 :15A-47, which reads:

“Retirement from service shall be as follows:
a. A member who shall have reached 60 years of age may retire from service by filing with the board of trustees a written statement, duly attested, stating at which time subsequent to the execution and filing thereof he desires to be retired. The board of trustees shall retire him at the time specified or at such other time within 30 days after the date so specified as the board finds advisable.
b. A member who shall have readied 70 years of age shall be retired by the board for service forthwith, or at such time within 90 days thereafter as it deems advisable, except that an employee reaching 70 years of age may be continued in service from time to time upon written notice to the board of trustees by the head of the department where the employee is employed.”

Appellant’s argument rests upon the assumption that the Public Employees’ Betirement Act was intended to afford tenure rights to all public employees. The act cannot be interpreted as creating, by its own terms, any system or right of tenure. Totally absent is the machinery for implementing such rights, ordinarily found in statutes creating tenure. Por example, the act sets forth no specification of the grounds necessary for removing an employee, or a procedure for determining whether those grounds exist. The only vested right which Jacobs had under the Public Employees’ Betirement Act was the right to a pension and not to a tenure of some shadowy or indefinite nature.

Nor does the Public Employees’ Betirement Act reveal any intention on the part of the Legislature to curtail the employment autonomy of the Authority. The act was designed, as its title states, “to provide coverage for certain * * * public employees, under the provisions of Title II of the Federal Social Security Act * * *; granting * * * membership in the Public Employees’ Eetirement System created hereunder, specifying contributions to be paid and benefit rights therein.” Its benefits are made applicable, not only to employees of the Authority, but to other public employees as well. The act is far broader in its scope than the statute creating the Authority and cuts across numerous classifications and categories of public-employees.

It is inconceivable that by its enactment of a program concerned with the mechanics of a pension system, the Legislature intended to' promulgate a state-wide policy governing a mandatory retirement age for all public employees. The Public Employees’ Eetirement Act simply establishes a system for the accumulation, investment and disbursal of a pension fund and the rights of a member as against the Pension Fund upon retirement for age, and prescribes minimum and maximum retirement ages.

Messano v. Board of Education of Jersey City, 32 N. J. 561 (1960), relied upon by appellant, is readily distinguishable from the present case. It involved the rights of tenure employees and has no application here.

We' conclude, therefore,' that the Authority had the power to adopt a regulation fixing a mandatory retirement age at 65. '

We observe that appellant’s right to relief may also be barred by his failure to take timely action to assert his rights. Although his employment ended on April 15, 1966, this action -was not begun until August 14, 19>67, some 16 months later. This is considerably beyond the 45-day limit or any ordinary extension we might have granted upon timely application under R. R. l:27B(d). However, because the case concerns a matter of public interest,- we prefer to rest our decision upon the merits:

The action appealed from is affirmed.


text:
    CHAIM MELCER, PLAINTIFF-RESPONDENT, v. BENJAMIN ZUCK AND ROSE ZUCK, DEFENDANTS-APPELLANTS, AND R. G. B. CONSTRUCTION CO., INC., A CORPORATION OF THE STATE OF NEW JERSEY, DEFENDANT.
    Superior Court of New Jersey Appellate Division.
    Argued February 13, 1968 —
    Decided July 5, 1968

      Before Judges (tAuekt'm, Lewis and Koeovsky.

      Mr. Robert B. Silverman argued the cause for appellants {Mr. Julius Braun, attorney).

      Mr. William G. Bossier argued the cause for respondent {Messrs. Parsons, Cantona, Blair & Warren, attorneys; Mr. Thomas Smith, Jr., of counsel).
   The opinion of the court was delivered by

Kolovsky, J. A. D.

As amended, the complaint filed herein by plaintiff, the purchaser named in a contract for sale of lands dated March 13, 1965, sought specific performance with an abatement by reason of the vendors’ “inability to provide a means of ingress- and egress to” the premises described in the contract, or in the alternative, damages for breach of contract. Joined as parties defendants were the sellers, Mr. and Mrs. Zuck and R. G. B. Construction Co., Inc. (R. G. B.) to which the Zucks had conveyed the property on January 22, 1966, taking back as part of the purchase price a purchase money bond and mortgage of $20,000.

After a plenary trial the trial court ruled — and plaintiff does not challenge the ruling — that R. G. B. was a purchaser for value and as such entitled under B. S. 46:21-3 to hold the property free from any claim of plaintiff under his recorded contract of sale.

However, the trial court further ruled that defendants Zuck had breached their contract so that plaintiff was entitled to the alternative relief prayed, damages from Mr. and Mrs. Zuck for the ‘loss of the bargain, * * * the difference between $28,750, the contract price as abated, and $40,230, the sales price to R. G. B. Construction Co. Inc.” (95 N. J. Super., at p. 260). Judgment was entered for the difference, $11,480, with interest from October 22, 1965.. The Zucks appeal.

We reverse. We are satisfied from our review of the record that plaintiff did not establish .a claim for relief either under the terms of the written contract of March 13, 1965 or by reason of what occurred thereafter.

We turn first to the contract of March 13, 1965, the basic instrument dealing with the rights and obligations ■of the parties, their “single and final written memorial,” ■30 Am. Jur. 2d, Evidence, § 1016, p. 152. We are therefore not concerned with the interpretation of, or indeed the enforceability of, a prior “offer to purchase” on a printed form ■of “Monroe Bowne, real estate broker,” signed by plaintiff and accepted by Zuck with a provision for a 10% brokerage •commission. We note, however, since similar provisions were incorporated in the March 13 contract, that the “offer to purchase” provided that

“Access from main road to property guaranteed. Seller guarantees not less than 295 acres. If survey shall disclose less than 295 acres, adjustment will be made at $100.00 per acre.”

The formal contract of March 13, 1965 had been insisted on by Zuck. It was prepared by plaintiff’s attorney. The description of the property was copied from a title report of Lawyers Title Insurance Company which Zuck had obtained prior to his acquisition of the property in 1953. That title report listed the same four exceptions (quoted at 95 N. J. Super., at p. 255) as were set forth in the title report dated April 12, 1965 later obtained by the purchaser’s attorney from the same title company. As the trial court observed, the first three exceptions relating to heirs and dower rights were thereafter deleted on submission of affidavit proofs; the fourth, of particular significance to the present litigation, was not. It read:

“Rights of ingress and egress to a public road will not be insured.”

The contract of March 13, 1965 provided for the sale by the Zueks to plaintiff of a 298.54-acre tract in Jackson Township on or before April 20, 1965 for $29,750 — $2,975 by deposit, the balance $26,775 at title closing, with provision for a reduction in the price “at the rate of $100 per acre or fraction thereof” if an accurate survey disclosed that the premises contained less than 295 acres. The premises wore described by metes and bounds and as lots 31 to 40, inclusive (with no indication of the map on which the property was designated by those lot numbers), subject, inter cilia, to the following:

“Subject to tbe rights of the public, if any, in and to any public roads running in, through or over the premises hereinbefore described. * * * # * * *
Subject to rights, public and private, in roads, streets or avenues abutting the hereinabove described premises.
Subject to any and all grants to public utility companies pertaining to the hereinabove described premises.”

Pertinent to the issues presented in this litigation are the following additional provisions of the agreement:

“Sellers guarantee ingress and egress from the main road to the premises in question.
s¡c * * * * * * *
In the event title to the above described premises is found to be unmarketable upon an examination thereof, the only obligation of the seller shall be the return of the deposit and all monies of the purchaser paid unto the seller; providing, however, that the seller will reimburse the purchaser for legal expenses incurred in the examination of the title to the hereinabove described premises which, however, shall not exceed the sum of $150.00; and upon receipt of the same by the purchaser, the rights and liabilities of the parties hereto, their respective heirs, executors, administrators or assigns, shall cease and terminate and this contract then to become null and void.
As an inducement to the seller to enter into this contract, the purchaser represents to the seller that the purchaser had made an inspection of said premises and is familiar with the condition thereof and that the seller had made no representation with respect thereto other than is specifically set forth in this contract.”

At the outset it is essential to determine exactly what the contract obligated the seller to convey — -what was the estate the purchaser had bargained for. The 298-acre tract does not front on any state, county or municipal road. The only reference to rights of ingress and egress thereto appears in the statement that the “sellers guarantee ingress and egress from the main road to the premises in question.” However, it is clear that the contract did not contemplate that the purchaser was merely to have the benefit of the seller’s warranty that ingress and egress would continue to be available. Cf. Jersey Estates Corp. v. Weintraub, 140 N. J. Eq. 216, 217 (Ch. 1947).

We agree with the trial court and with plaintiff’s contention that the contract obligated defendants to convey hot only the 298-acre tract but also “legally recognizable” right-of-way easements furnishing ingress and egress from the main road to the tract.

At the trial Zuck offered proofs as to seven roads and rights of way allegedly available, some of which were being used for ingress to and egress from the 298-acre tract. After analyzing those proofs the trial court concluded that “the Z licks could not honor their guarantee of ingress and egress from a main road to their premises” (95 N. J. Super., at p. 258), this based on the court’s ruling that “there was no proof that any easement had been established over any of the properties through which these ways went,” either by prescription or dedication (95 N. J. Super., at pp. 257-258).

Although Zuck vigorously challenges the correctness of the trial court’s analysis and findings with respect to the legal existence of the rights of way, we find it unnecessary to deal with that challenge for our disposition of the case. Assuming the correctness of the court’s ruling, it constitutes a determination that the Zueks were unable to convey good or marketable title to the estate, which included the rights of way, they had agreed to convey. Lounsbery v. Locander, 25 N. J. Eq. 554, 556 (E. & A. 1874); 4 American Law of Property § 18.7, p. 673 (1952); Cleveland v. Bergen Bldg. & Imp. Co., 55 A. 117, 123 (N. J. Ch. 1903); Bassolino v. Iacovelli, 275 App. Div. 972, 90 N. Y. S. 2d 526 (App. Div. 1949); see, also, Moran v. Borrello, 4 N. J. Misc. 344, 132 A. 510, 511 (Sup. Ct. 1926).

Unless plaintiff acquired additional rights by reason of what occurred after the execution of the contract of March 13, 1965, that determination of lack of marketable title brings into operation the contract provision limiting the sellers’ obligation in the event title is found to be unmarketable to the return of the deposit and search fees not exceeding $150. It is settled that such a provision for limitation of liability is valid and enforceable. Bertrand v. Jones, 58 N. J. Super. 273, 287 (App. Div. 1959), certification denied 31 N. J. 553 (1960) ; Guaclides v. Kruse, 67 N. J. Super. 348, 364 (App. Div. 1961), certification denied 36 N. J. 32 (1961); 5 Williston, Contracts (3d ed. 1961), § 781A; 5 Corbin, Contracts, § 1068 (1951); cf. 6 Powell, Real Property, ¶ 928, at p. 339 (1968).

We have not overlooked the statement in the trial court’s opinion that “it is admitted that the title was not unmarketable because of the question as to ingress and egress.” (95 N. J. Super., at p. 257). Altogether, apart from the fact that such an admission or stipulation as to what the law is is not binding upon the court, 50 Am. Jur., Stipulations § 5, p. 607; Bankers’ Trust Co. of N. Y. v. Lobdell, 116 N. J. Eq. 363, 364 (Ch. 1934), the record does not support the statement. That was not the position taken by plaintiff in his pleadings, in the pretrial orders, or indeed on this appeal. We find nothing persuasive in the opinion to the contrary expressed at the trial by the attorney who represented plaintiff in the transaction. As far as defendants are concerned, there was no stipulation by them that marketability of title would not be involved if in fact defendant was obligated to convey good or marketable title to an easement of ingress and egress.

On that background, we next consider the sequence of events following the execution of the agreement of March 13. Plaintiff’s attorney ordered and obtained a title report from Lawyers Title Insurance Company which, as was to be anticipated, repeated the statement in its prior report that “rights of ingress and egress to a public road will not be insured.” Zuck had, of course, not agreed that his title would be such as a title company would insure. Cf. Love v. Fetters, 98 N. J. L. 784 (E. & A. 1923). Plaintiff’s attorney made no effort otherwise to ascertain whether there were “legally recognizable” rights of ingress and egress. Instead, he, on plaintiff’s behalf, insisted that plaintiff was entitled to an abatement in the purchase price, the abatement originally demanded being $6,000.

Defendant refused to grant any abatement. The impasse led to a final blow-up on May 25, 1965, with plaintiff’s attorney on that day demanding of and receiving from the broker Bowne the $2,975 which had been deposited under the contract, telling the broker that the matter “would be going probably into court and he wanted to hold the deposit during litigation.” (Despite the recitals in the contract and Zuck’s protests and demands, he had never received any part of the deposit moneys. It is clear from the proofs that in refusing to pay the deposit moneys to Zuck, the broker was acting pursuant to plaintiff’s directions. The trial court’s intimation to the contrary (95 N. J. Super., at p. 260) is not supported by the record.)

In view of the contract provision governing the rights of the parties in the event title was unmarketable, providing that in such event “the only obligation of the seller shall be the return of the deposit and all moneys of the purchaser paid unto the seller” plus search fees not exceeding $150, there was no justification for plaintiff’s insistence on an abatement. If there were no legally recognizable rights of ingress and egress, so that title was in fact unmarketable, all that plaintiff was entitled to was a return of the deposit moneys ■ — which he had already obtained through the cooperation of the broker — and search fees not exceeding $150.

So, too, the contract provision was a bar to specific performance with an abatement which was the relief sought in the complaints filed herein and in the first pretrial order entered on October 6, 1966. Epstein v. Mundweiler, 97 N. J. Eq. 375, 377 (E. & A. 1925); Guaclides v. Kruse, 67 N. J. Super. 348, 361, certification denied 36 N. J. 32 (1961), although of course it would not bar a vendee from seeking specific performance without an abatement. Epstein v. Mundweiler, supra.

In the original and amended complaints filed herein on February 23 and May 6, 1966, respectively, and in the first pretrial order of October 6, 1966, plaintiff’s only contentions in addition to the reference to the terms of the contract of March 13, 1965 and the allegations with respect to the conveyance to R. G. B. were, as set forth in the pretrial order, that

“* * * a date for closing was set for October 22, 1965 at the office of plaintiff’s attorney at which time both the plaintiff and the defendants Zuck appeared. Defendants Zuck refused to execute a deed and pass title although plaintiff was ready, willing and able to complete the transaction. Plaintiff is still ready, willing and able to purchase the property. A provision of the contract guaranteed ingress and egress to the property which the defendants are unable to convey.
* * * # v * * Sjt
Plaintiff seeks specific performance with an abatement of the purchase price due to defendants’ inability to provide ingress and egress to the property or in the alternative damages,”

the reference to the relief sought being repeated in paragraph 5 of the pretrial order, which reads as follows:

“Plf demands specific performance of agreement or damages. Def Zuck claims that damages are limited by the terms of the contract to $150.”

However, the relief granted by the trial court was in fact not damages in lieu of specific performance with an abatement; it was damages in lieu of specific performance of a new agreement, a modification agreement allegedly entered into in October 1965 under which Zuck’s guarantee of ingress and egress was eliminated in consideration of his agreement to reduce the purchase price by $1,000.

That theory of the action first came into the case at the trial which began on February 9, 1967 during the testimony of plaintiff’s first witness — the attorney who had represented him in the transaction. Because of the variance, the court declared a mistrial and ordered a new pretrial conference.

The second pretrial conference was held on March 7, 1967. Plaintiff’s contentions as set forth in the pretrial order of that day were:

“Plaintiff alleges that on March 13, 1965, he and defendants, Zuck, entered into a contract for sale of certain real estate which is described in the complaint. Under the contract plaintiff paid to defendant a deposit in the amount of $2,975.00 and a closing- date was scheduled for October 22, 1965 at the office of the plaintiff’s attorneys. On that date the plaintiff and his attorney, Mr. Zuck and possibly the real estate broker appeared.
The contract had originally provided that Benjamin Zuck agreed to provide a means of ingress and egress to the premises. Defendant, Zuck, on the closing date, was unable to supply this and at the closing plaintiff and defendant negotiated a reduction in the purchase price of $1,000.00 as an abatement for his inability to supply entry to the land.”

The contentions continued with a charge that defendants refused to close because of plaintiif’s insistence upon withholding out of the purchase price amounts necessary to satisfy open liens on the property, repeated the claim that E. G. B. took title with knowledge of plaintiif’s rights, and concluded that

“Plaintiff seeks specific performance with an abatement of the purchase price due to defendant’s inability to provide ingress and egress to the property or in the alternative damages.”

However, at the trial which followed, beginning May 23, 196?, the proofs tendered by plaintiff were that the modification agreement and the agreement to close on October 22, 1965 had been arrived at in a conversation between one Elaum and Znek several days before October 22, not, as stated in the second pretrial order, that it had been negotiated by plaintiff and defendant at the scheduled closing of October 22.

Zuck admitted that he had had conversations with Elaum hut asserted that they related not to a modification of the Melcer agreement but to a new deal to sell the property to Elaum or his designated corporation for $38,000, with title to close on October 22, 1965 at the office of the attorneys who had represented Melcer and who also represented Elaum and his partner Eox.

Plaintiff did not call Elaum as a witness although he was available. That failure is of particular significance since the inference is irresistible from what does appear in the record that Flaum and Fox had some undisclosed interest in Melcer’s rights under the March 13, 1965 agreement. All the testimony offered by plaintiff in support of his version of the Zuck-Flaum conversations was hearsay,

It is clear that the alleged oral modification under which defendant ceased to be obligated to deliver marketable title insofar as it related to ingress and egress, in exchange for an abatement of $1,000 in the purchase price, was unenforceable because it was not in writing as required by the statute of frauds. Kohoot v. Gurbisz, 101 N. J. Eq. 757 (E. & A. 1927).

Further, altogether apart from the question of the application of the statute of frauds and even ignoring the testimony of defendant and his witnesses, we are satisfied that in the absence of any testimony from Flaum, the person who allegedly entered into the modification agreement on plaintiff’s behalf, the only inference fairly to be drawn from the testimony of plaintiff’s witnesses is that the arrangement for the closing was not a binding contractual modification but rather an attempt to get the transaction and title closed. Since such tentative understanding for the purpose of closing failed, plaintiff’s rights and defendants’ obligations must be measured by the written contract of March 13. Cf. Four-G Corp. v. Ruta, 25 N. J. 503, 507 (1958).

As we have noted, plaintiff had already received the déposit moneys paid under the contract of March 13, 1965; his only other right arising from the court’s ruling with respect to the non-existence of rights of ingress and egress was to recover search fees not in excess of $150. But he offered no proof as to the expenses incurred in the examination of title.

The judgment is reversed and the cause remanded to the Chancery Division with directions that judgment be entered in favor of defendants Benjamin Zuck and Eose Zuck.


author: Sullivan, S. J. A. D.

text:
    THE TOWNSHIP OF HOPEWELL, A MUNICIPAL CORPORATION IN THE COUNTY OF MERCER, THE TOWNSHIP OF FRANKLIN, A MUNICIPAL CORPORATION IN THE COUNTY OF SOMERSET, AND THE TOWNSHIP OF PISCATAWAY, A MUNICIPAL CORPORATION IN THE COUNTY OF MIDDLESEX, ALL INDIVIDUALLY AND ON BEHALF OF AFFECTED CITIZENS AND ORGANIZATIONS SEVERALLY THEREIN, PETITIONERS, v. DAVID J. GOLDBERG, COMMISSIONER OF DEPARTMENT OF TRANSPORTATION, STATE OF NEW JERSEY, JAMES R. SCHUYLER, STATE HIGHWAY ENGINEER, DEFENDANTS.
    Superior Court, of New Jersey Appellate Division.
    Argued June 24, 1968 —
    Decided July 10, 1968.

      Before Judges Sullivan, Foley and Leonard.

      Mr. Edward B. Meredith and Henry Spritzer argued the cause for petitioners (Mr. Edward B. Meredith, attorney for Township of Hopewell; Messrs. Spritzer <& Spritzer, attorneys for Township of Franklin; Mr. Joseph Stevens, attorney for Township of Piscataway).

      Mr. David A. Biederman, Deputy Attorney General, argued the cause for defendants (Mr. Arthur J. Sills, Attorney General of New Jersey, attorney).
   The opinion of the court was delivered by

Sullivan, S. J. A. D.

This is an appeal under B. B. 4:88-8 from the recommendation of the Commissioner of the Department of Transportation, State of New Jersey, through his highway engineer, of a proposed route alignment for Interstate Highway 95 through, inter alia, the three aggrieved municipalities of Hopewell Township, Franklin Township, and Piscataway Township.

Interstate Highway 95 is a component of the National System of Interstate and Defense Highways as established by the Federal Aid Highway Act of 1956. It enters New Jersey from the south at a point on the Delaware River, and leaves the State to the north via the George Washington Bridge. Under the Federal Act, the route alignment through a particular state shall be made by the highway department of that state, subject to the approval of the Federal Bureau of Public Roads.

In 1965, the New Jersey State Highway Department commissioned an engineering firm to study the various possible routes of 1-95 through a corridor of land in the central part of the State, roughly bounded by the Reading Railroad right of way and U. S. Route 1. The corridor extends from Scotch Road in Hopewell Township to Route 287 in South Plain-field, and is slightly more than 30 miles long.

This engineering firm undertook an exhaustive analysis of the possible route alignments through this corridor, considering data ranging from soil classification to demographic projections. This location study resulted in the selection of 34 possible routes, two of which were designated by the firm as its first and second choices respectively.

A series of public screenings of the proposed alignments was held, with residents of affected municipalities attending in their individual and representative capacities. The first of these was a pre-hearing meeting held in January of 1966 at which a presentation of the proposed route and possible alternative routes was made. Present at this gathering were the Highway Commissioner and members of the retained engineering firm. Some 37 speakers were heard. Others in attendance numbered 126, including official representatives from the New Jersey State Assembly, Counties of Mercer, Somerset and Middlesex and their respective planning boards, Ewing Township, Lawrence Township, Borough of Pennington, Hopewell Borough, Princeton Township, Hillsborough Township, Montgomery Township, Borough of Rocky Hill, Millstone, Borough of South Plainfield, Rutgers University, Federal Bureau of Public Roads, Green Brook Township, New Jersey Department of Conservation and Economic Development and the Princeton 1-95 Committee. Representing appellant Hopewell Township were four of its committeemen, the township attorney, its planning consultant and a member of its planning board. Representing Franklin Township were its Mayor, Town Administrator, five eouncilmen, the chairman of its planning board and one planning board member and the vice-president of its Board of Education. Appellant Piseataway Township was represented by its Mayor, three committeemen, the township engineer, the chairman of its planning board, the secretary and a member of the planning board.

In May of 1966, a public hearing on the proposed alignment was held, at which time the possible alternate routes were again discussed. Some 800 persons were in attendance at the day long meeting. Slides and aerial photographs were exhibited to the audience, and the information depicted thereon was explained. Individual residents and official representatives of the affected municipalities expressed their views on and objections to the location of the proposed alignment. At the hearing, the planning boards of Mercer and Somerset Counties expressed their general approval of this alignment, while the Middlesex County planning board expressed no opinion for or against the proposed route.

A third meeting was held on September 1, 1966, this time at the behest of Franklin, Piseataway, and South Plainfield Townships. Officials of these municipalities were given the opportunity to question the State highway engineer and members of the retained engineering firm as to the ramifications of the proposed route alignment.

On June 1, 1967, the State highway engineer submitted his recommendation of a route alignment to the Federal Bureau, of Public Roads. The recommended route was the alignment which was selected by the engineering firm as its alternate choice. In his recommendation, the highway engineer outlined in general terms the background of conferences, analysis, and study, which had gone into the project and from which the two alignments ultimately selected by the engineering firm emerged as superior to the other lines considered. In recommending the alternate alignment, the highway engineer detailed the reasons for his preference.

It is from this recommendation by the State highway engineer that the appellant municipalities, individually and on behalf of their affected citizens, prosecute this appeal.

Pending this appeal, the Federal Bureau of Public Roads, through its division engineer, approved the recommended route from Scotch Road to Route 514, roughly the territory of Hopewell Township. Approval of the remaining sector, from Route 514 to Route 1-287 was withheld pending the receipt of additional information as to specified items.

Preliminarily, we consider the argument made by defendants that the recommendation of the proposed route alignment by the Commissioner is not a final decision or action of a State administrative agency and therefore not appealable under R. R. 4:88-8. Defendants further argue that, in any event, the action taken by the Federal Bureau of Public Roads, since the filing of the appeal herein, makes the entire matter academic.

We conclude that an interested party has the right under B. B. 4:88-8 to obtain judicial review of the Commissioner’s selection of a proposed route alignment. While the administrative determination is in legal effect a recommendation only, it is the Commissioner’s final decision or action in the matter and is appealable under R. R. 4:88-8.

We also conclude that the action by the Federal Bureau of Public Roads with regard to the proposed route alignment, taken after this appeal had been filed, did not oust this court of jurisdiction.

We proceed to consider the meritorious questions involved.

Appellants argue that the recommendation of the proposed route alignment made by the Commissioner through his highway engineer was illegal, ultra vires, and void. In substance, appellants’ argue that Interstate Highway 95 will consist of a series of State highways inter-connected with those of neighboring states, but that essentially the highway, as it traverses the State of New Jersey, will constitute a State highway. Appellants argue that in New Jersey the designation of the routes comprising the State highway system has been retained by the Legislature and that there must be legislative authorization of a route alignment to give it legality.

We do not agree that the authorities relied on by appellants, and cited in its brief, apply to interstate highways established under the Federal Aid Highway Act. Our Legislature has clearly indicated its intent that New Jersey participate in the Federal aid highway program. It has empowered the Highway Commissioner to perform whatever acts are required by Federal Statute to qualify the State for Federal highway aid. Recommendation of proposed route alignments by the highway department of the particular state is one of such acts. The powers granted the Commissioner under the various State statutes must be construed liberally so as to carry out the basic purpose of providing adequate highway facilities throughout the State. Participation in the Federal highway aid program is clearly within the scope of the statutes.

Appellants also contend that the Commissioner’s recommendation is invalid because it was not submitted to local planning boards for study and approval. This contention lacks merit since N. J. S. A. 40:55-1 et seq. is not applicable to the State of New Jersey. Moreover, the record indicates that the Commissioner consulted the planning boards of each county and municipal government affected by the proposed route and solicited their recommendations.

Appellants next argue that, in combination, a defective notice, improper hearing, and patent failure of cooperation ■with local municipalities, render the promulgated route void. Specifically, it is argued that defendants failed to comply with the requirements of Federal statute and regulations that local needs be given equal consideration; that appropriate local officials be given a voice in the selection of the route; that the economic .effects on the locality be considered; that opportunity be given to express objections to the proposed route; and-that full consideration of alternatives be had. As to the notice, it is argued that the map which accompanied it was manifestly insufficient to enable anyone to determine precisely whether the proposed route was through or contiguous to any particular property. Interchanges were not settled so that at the public hearing, those attending did not have a meaningful opportunity or ability to do anything other than make ad hoc comments about a route and indefinite interchanges being displayed for the first time.

We conclude that the requirements for public hearings, and notice thereof, were substantially met; that the local needs were considered; that appropriate local officials were consulted; that economic effects considered; alternate routes studied; and an opportunity to express objections to the proposed route given. The record shows that the proposed route alignment was given lengthy study and consideration.

In the letter to the Federal Bureau of Public Roads setting forth the proposed route alignment the following appears:

,.‘.‘The Consulting Engineers, together with members of the State’s 'Transportation Department staff, met with representatives of county .and municipal governments, planning boards, civic organizations, and private citizens to determine their thinking on a location for subject route. As a result of these discussions, a considerable number •of proposals were advanced which were all studied from the ■viewpoint of required design standards, fitting typical sections to ■terrain, horizontal alignment, vertical profile, interchange locations, .and right-of-way costs. Comparative estimates were made of the cost of these various alternatives advanced at the time of preliminary •discussions. In addition, on each of these alignments, consideration was given to facilitation of travel, service to the existing population npd. industry, stimulation of intelligent and future growth, and to the preservation of natural resources. After these studies were completed, the planning boards and members of official governing bodies of each of the communities represented in the defined corridor, were invited to this Department for a presentation of 1he findings to that stage of development. The Bureau of Public Roads was included at this presentation.”

The record before us fully supports the foregoing statement.

The studies, reports, and hearings involving some 34 alternate route suggestions and evaluations thereof, too lengthy and complex to here detail, together with the opportunity for interested parties to express their views for or against the various proposed route alignments, in our opinion demonstrate that there was a fair and meaningful exploration of possible route alignments before final decision was reached.

Finally, appellants argue that the administrative action was arbitrary and capricious because it failed to suggest what evidence was acted upon, what evidence was accepted, and what consideration, if any, was given to planning, economic conservation, or sociologic or other factors. In short, it is contended that a reasoned judgment could not have been made because no basis for it was established.

We are here considering a proposed highway route alignment against the background of the Commissioner’s admitted expertise in this field. In reviewing the administrative action, our function is not to substitute our judgment for that of the Commissioner even if we should disagree with his determination. The inquiry is whether there is substantial credible evidence present in the record to support the proposed route alignment.

As noted by the State highway engineer in his letter to the Federal Bureau of Public Boads, the extensive study of possible route lines indicated that two proposed lines, No. 12 and No. 21, were superior to the other lines. The letter added that from engineering, planning and sociological considerations, each of these two alignments had certain advantages which made either of them acceptable as a route location. However, he concluded that “the preponderance of local planning actions and opinions favoring Line No. 12 tips the scales in favor of Alignment No. 12.”

The proposed route, no matter how aligned, is bound to adversely affect some interests. The problem is to achieve a proper balance between the general public interest and local needs and considerations. So viewed, we conclude’that there is substantial credible evidence present in the record to support the proposed alignment recommended to the Pederal Bureau of Public Eoads.

Affirmed.