author: Miller, J. C. C.,

text:
    181 INCORPORATED, A CORPORATION OF NEW JERSEY, OAKFORD W. ACTON, JR. AND LAWRENCE W. POINT, PLAINTIFFS, v. THE SALEM COUNTY PLANNING BOARD AND THE BOARD OF FREEHOLDERS OF THE COUNTY OF SALEM, DEFENDANTS.
    Superior Court of New Jersey Law Division
    Decided January 9, 1975.

      Mr. Lawrence W. Point for plaintiffs (Messrs. Acton & Point, attorneys).

      Mr. Norman Telsey for defendant Salem County Planning Board.

      Mr. George S. Friedman for defendant Board of Freeholders of the County of Salem.
   Miller, J. C. C.,

Temporarily Assigned. Plaintiff challenges, as unconstitutional, actions of the Salem County Planning Board compelling it to dedicate to the county a portion of land, owned by it, bordering upon a county road, as a condition precedent to approval by the county of a site plan submitted for the construction of a law office. While such compulsory taking without monetary compensation was held constitutional in Harris v. Salem County Planning Board, 123 N. J. Super. 304 (App. Div. 1973) certification denied 64 N. J. 152 (1973) — but see Battaglia v. Wayne Tp. Planning Board, 98 N. J. Super. 194 (App. Div. 1967) — the present case is apparently the first one to arise wherein a full record has been made. It tests whether the actions of these defendants are justified by that case. For the reasons set forth herein, they are not and a reversal is required.

Plaintiff is the owner of a tract of land in Woodstown, Salem County. The tract abuts on Elm Street (County Road 40) and on U. S. 40 and is irregular in shape. Following its purchase in December 1971 plaintiff applied to the Salem County Planning Board for site plan approval. The site plan review committee recommended approval subject, among other things, to the dedication of 8.25' along its border on Elm Street to be used for a proposed widening of Elm Street from 49.5' to 66' pursuant to the official map. The time of such widening is indefinite.

Plaintiff appealed the decision of the site plan review committee to the county planning board. The board affirmed the decision of its committee over plaintiff's timely objection that such required dedication constituted unconstitutional taking of private property for public use without just compensation. Appeal was next taken to the board of freeholders, which bodjr affirmed the planning board.

A complaint in lieu of prerogative writs was thereafter filed by plaintiff and a motion for summary judgment was heard by Judge Gruceio who, by a letter opinion, remanded the matter for hearing and compilation of a record before the planning board. This letter states, among other matters:

In conducting said bearing, the court calls your attention to the Rational Nexus Rule and to the fact that there is serious doubt in the court’s mind as to the constitutionality of banking land without reasonable prospect of use.

Rehearings were held before the planning board and before the board of freeholders. Both reaffirmed their earlier decisions. Plaintiff now renews its application for summary judgment in this court.

The first legal issue presented is whether N. J. S. A. 40: 27-6.6 (b), which empowers a county board of freeholders to compel dedication of additional rights of way before approving site plans for land development along county roads, may be reconciled with the constitutional proscriptions against the taking of private property for public use without just compensation. N. J. Const. (1947), Art. IV, § VII, par. 3. In the light of Hams it is clear that constitutional power to require such dedication exists, leaving for decision the constitutionality of the actions of the county in attempting to exercise that power. To understand why they are not valid it is necessary to analyze them in the light of principles laid down in Harris.

Harris held that the requirement of dedication under N. J. S. A. 40:27-6.2(b) is constitutional whenever there is a demonstrable "rational nexus" between the amount of land so dedicated and "the needs created by and benefits conferred upon the subdivision.” Harris, supra, 123 N. J. Super. at 307. Although Harris involved a minor subdivision and the instant case a site plan approval, the two are in pari materia, involving comparable sections of the same statute, N. J. S. A. 40:27-6.2(b) (Harris) and N. J. S. A. 40:27 — 6.6(b) (the instant case). The constitutionality of the County Planning Act generally (N. J. S. A. 40:27-l et seq.) was held to rest upon the same legal principles as the Municipal Planning Act, N. J. S. A. 40:55-1.1 et seq. It is from the cases construing parallel provisions in the Municipal Planning Act that the "rational nexus” test is drawn. Having so held, the court remanded Harris to the planning board for a full administrative hearing to determine “whether the requested minor subdivision justifies the compelled dedication, or whether the county be relegated to a possible future condemnation.” Harris, supra at 309.

It is significant that Judge Gruccio not only indicated that he had some doubts concerning the validity of the practice of "Tanking land,” as he called it, hut went on to suggest to the board:

Further comment is necessary, that serious consideration shall be given by the County and the Planning Board to an amendment of the Ordinance providing for hearings and a due process method whereby the determinations to be made by the Planning Board under Harris and this case may be made.

An analysis of what was done in compliance with this requirement of Judge Gruccio is revealing.

The original site plan review resolution was adopted January 21, 1970 by the hoard of freeholders pursuant to N. J. S. A. 40:27-6.6. It provided in § 8 that, “As a condition to the approval of a site plan, the planning board shall require the dedication of additional right of way * * *” (emphasis supplied). Tt was this mandatory feature to which plaintiff objected. On December 19, 1973, presumably in response to Judge Gruccio’s mandate, the resolution was amended to include in § 7 (""Appeals”) the following paragraph :

If upon an appeal the applicant clearly demonstrates that a requirement of additional right-of-way bears no rational nexus to the needs created by and benefits conferred upon Ms site development, the reviewing board shall relieve the applicant from any requirement to dedicate additional right-of-way along an existing road. In addition to any other evidence presented, the reviewing board at such hearing shall consider the amount of additional traffic along said road to be caused by the site development, any adverse effect upon traffic flow along said road caused by vehicles entering and leaving the proposed development, and whether the proposed additional road width would increase ease and safety for vehicles entering and leaving the site and for through traffic on said road. The review board shall also consider the County Master Plan for roads and transportation and shall consider evidence of both existing and anticipated traffic patterns along said road.

The compulsory dedication requirement of § 8 remained unchanged.

The thrust of this amendment is to place upon the landowner the burden of avoiding a blanket policy of compulsory dedication, probably because of language in Harris stating (at 309), “There is nothing unreasonable in requiring a subdivider to bear the burden of coming forward with proofs when seeking relief.” But this language must be viewed in its proper perspective. In condemnation eases the statute requires an affirmative determination by the policy-making body, followed, ly negotiation, before condemnation proceedings may be instituted. See N. J. S. A. 20 :3-6 and the former law to the same effect, N. J. S. A. 20:1-1, repealed by L. 1971 c. 361, § 49. The same policy is set forth in the Official Map Act, N. J. S. A. 40:55-1.32. See Lomarch Corp. v. Mayor of Englewood, 51 N. J. 108 (1968). (The effect of Lomarch is to include the statutory intent, by construction, in the provisions of the County Official Map Act, N. J. S. A. 40:27-6).

There is clearly spelled out in this statutory framework the intent of the Legislature that the first move to expropriate land must be rnjade by the public body before a landowner may be adversely affected. This first move may be a resolution calling for the exercise of the powers of eminent domain; it may be by the adoption of a master plan or official map, but by whatever name it may be called, it must define for the public, and particularly those who may be affected by it, the specific intent of the public body and must be specific with respect to the land in question. Only then, when the property owner knows what he has to meet, can he take steps to meet it. Read in the light of this background, as is pointed out in Harris, it is not improper to then require the landowner to come forth with his proofs. By this standard the county’s actions were insufficient.

The vice in the county’s resolution is that it sets up a blanket policy of taking frontage along every county road without regard to present need, imminency of proposed use or, indeed, of any standard whatsoever. To then expect a landowner to prove himself outside the perimeter of so nebulously defined an area makes it impossible for him to meet his burden. A perusal of the record in this ease and an analysis of the testimony which was necessarily adduced by the plaintiff illustrates the predicament of the landowner.

In order, therefore, for the county to place upon the landowner the burden of proof imposed upon him by Harris, the county must first make its position clear. This must be done, not in generalities, but in specifics applicable to the land sought to he obtained. While obviously there should be the adoption of an official map and a master plan, this is not enough. There should be, at the bare minimum, a proposal for the imminent use of the land, not a mere “banking” for unscheduled future use. While it is true that road appropriations are made on an annual basis it is also true that plans for road work involve “lead time.” If the county does not intend to use the land proposed to be taken within such ffiead time,” to take it without compensation merely because opportunity presents itself runs afoul of the Constitution.

The planning board felt that there was a sufficient rational nexus between the proposed use and the widening in futuro of Elm Street to justify the requirement of a compulsory dedication. This finding constitutes error.

“Rational” means a general principle of law or warranted presumption that supports a conclusion, explains a fact or validates a cause of action. It implies satisfaction to or chiefly activated by reason. “Reasonable” carries a much weaker implication of the power to reason. Webster’s Third New International Dictionary (unabr. ed.) (1963). The word “nexus” is derived from the Latin "nectere” meaning “to hind” and signifies a connection or a connected group or series. Id. In the framework of this case, a rational nexus means an interconnection between two events, direct and substantial in nature and clearly and logically linked together. It signifies a connection more definitely and clearly established than a “reasonable connection.” It cannot be used to portray an indirect, remote or vague relationship.

The term “rational nexus” appears to have become embedded in our jurisprudence with its use by the Supreme Court in Longridge Builders v. Princeton Tp. Planning Board, 52 N. J. 348, 350 (1969). In that case the planning board sought to impose upon a developer the requirement of paving a dedicated but unimproved right-of-way extending from a boundary of plaintiff’s subdivision 361 feet to an existing road. The court did not pass upon the question of whether a planning board could compel a developer to provide off-site improvements. In limiting the power of a planning board to compel improvements the court said:

It is clear to us that, assuming offi-site improvements could be required of a subdivider, the subdivider could be compelled only to bear that portion of the cost which bears a rational nexus to the needs created by, and benefits conferred upon, the subdivision, [at 350]

Clearly, this case does not stand for the proposition that a developer may be compelled to dedicate lands on a routine basis. Moreover, the authority cited in Longridge is Lake Intervale Homes Inc. v. Parsippany-Troy Hills, 28 N. J. 423, 441-443 (1958). This citation is significant because Lalce Intervale involved the question of what portion of the cost of certain improvements, in that case water, could be imposed upon a developer. The court held that an ordinance which sought to impose upon a developer the entire cost of such improvements, where other property owners would ultimately derive benefit therefrom, could not be sustained. Here, again, the court was dealing, not with a grant, but with a limitation of power.

In Brazer v. Mountainside, 55 N. J. 456, 465-466 (1970), the court said that statutory and ordinance provisions for a compulsory dedication could only be valid where the proposed street bears a realistic relation to or is reasonably made necessary by the subdivision. See also Princeton Res. Lands v. Princeton Tp., 112 N. J. Super. 467, 474, 475 (App. Div. 1970), holding that a developer may not be compelled to donate land to increase the width of an existing abutting street.

The constitutional basis of the nexus requirement is neither strange nor novel. It appears in the earlier zoning eases, for instance, Grosso v. Millburn Tp. Adjustment Bd., 137 N. J. L. 630, 633 (Sup. Ct. 1948), which held that “lands may not be taken for highway use, presently or in futuro, without just compensation.” Grosso, supra at 633. See also Lomarch Corp. v. Mayor of Englewood, 51 N. J. 108 (1968). And Battaglia v. Wayne Tp. Planning Board, 98 N. J. Super. 194 (App. Div. 1967), is particularly apposite since, like the instant ease, it involved a site plan approval:

Unlike tlie case of a land subdivision, no new streets are necessitated by the plaintiff’s planned use; there are no purchasers to whom the cost of the improvements can be passed, and plaintiff’s land receives no discernible benefit from compliance with the imposed conditions. [at 200]

Had Battaglia not applied for official action, Wayne Township could not have imposed upon him the obligations sought to be imposed. The same logic is inescapable here.

In short, for the nexus test to apply, thus making a compulsory dedication constitutionally valid, the nexus must be rational. This means it must be substantial, demonstrably clear and present. It must definitely appear that the proposed action by the developer will either forthwith or in the demonstrably immediate future so burden the abutting road, through increased traffic or otherwise, as to require its accelerated improvement. Such dedication must be for specific and presently contemplated immediate improvements — not for the purpose of “banking” the land for use in a projected but unscheduled possible future use. In this respect the language in Mansfield & Swett v. West Orange, 120 N. J. L. 145 (Sup. Ct. 1938), remains as timely today as when it was first written:

* * * Nor do we think that increased traffic hazards constitute a valid objection to the development. It is not a sound argument that the subdivision will attract additional dwellers, and thereby increase the volume of traffic and create the need for additional police supervision. These are mere incidents of municipal growth, [at 161; emphasis supplied]

Viewed by these standards the actions of the planning board in this ease cannot be sustained. The record clearly discloses that (1) Elm Street has a capacity of 400 vehicles an hour (the board’s claims of 200 an hour are unpersuasive); (2) present use is but 95 vehicles an hour; (3) use of the land in question for a law office generates additional vehicular movements totalling 17 a day. While the record does contain generalities and projections for possible future development over the next 15 years which might just indicate a need for future improvement of Elm Street by then, m> action is planned or projected in the foreseeable future. Further, some — possibly the majority —■ of the projections are bottomed, not on the plaintiff’s use of its lot, but upon the general growth of the community and county, including possible traffic increase caused by the completion of the Commodore Barry Bridge over the Delaware River, miles from the site in question. The sole proven impact of plaintiff’s proposed use upon the road was limited to the traffic count set forth above. This was not a hypothetical, theoretical projection but actual measured figures.

The county urges the proposition that property fronting a street is inherently benefited by a widening of such street. Significantly, the authority cited, 11 McQuillin, Municipal Corporations (3 ed. 1964), § 32.26 at 359, 360, does not depend upon a New Jersey authority, and it is doubtful if the statement could be supported as a flat proposition. In this case there is no evidence of any proposed widening. Moreover, when a street is widened such benefit, if any, must be taken into account when damages are assessed. See N. J. S. A. 40:49 — 16.

While it is obviously true that plaintiff’s use increases the burden on Elm Street to some minuscule degree, so, too, the purchase of an additional car by a one-car family doubles the impact of that family upon the highway system. While in a technical sense a nexus may be thus created, little argument is needed to show that it is not rational. Certainly it was not rational in the instant case.

The above findings lead to the conclusion that the actions of the planning board cannot be sustained. However, the board is not without remedy. Since the statute has survived the constitutional test, it follows that the county’s incorrect action was requiring compulsory dedication without compensation. There is nothing wrong with the county taking this land pursuant to the statute, provided it pays a fair price therefor. This is precisely the situation presented by Lomarch Corp. v. Mayor of Englewood, 51 N. J. 108, 113 (1968). Lomarch holds that N. J. S. A. 40:55-1.32 and N. J. S. A. 40:55-1.38, which permit a municipality to deprive a landowner of the use of his lands under the circumstances set forth therein, must be construed to impose upon the municipality the duty of making payment of adequate compensation. The same is true herein, and it is held that N. J. S. A. 40:27 — 6.6 and N. J. S. A. 40:27-6.2 permit a compulsory dedication but, on the same rationale as Lomarch, must be construed to require the payment of adequate compensation. If the nexus be rational and meets the tests set forth herein, no compensation need be paid since the benefits to the landowner supply the compensation. If the nexus be not rational, as in the instant case, monetary compensation must be paid if the lands are desired for “banking” purposes.

In this respect the judgment of the planning board, within the frame of reference given it by the freeholders, must be determinative. The board may well feel that, with the cost of land constantly rising, the public interest would best be served by obtaining the land at present prices. It might also conclude to wait until the need becomes more imminent. This decision is the board’s and not the court’s.

Since the case must go back, the board of freeholders should revise the site plan (and subdivision) standards, eliminating automatic dedication and limiting compulsory taking to those occasions when it meets the rational nexus test and the county’s proposed use is specific and imminent. For example, most (although certainly not all) minor subdivisions will probably be found not to meet the rational nexus test as defined herein.

The actions of the planning board are reversed. The case is remanded to the planning board to determine whether the land in question shall be purchased or not. If it is decided not to purchase and plaintiff has delivered a deed, title shall be returned to it. If it is decided to purchase the land, plaintiff shall deliver a deed upon tender to it of fair compensation. Jurisdiction is retained. No costs.


source: Caselaw Access Project

author: Kentz, J. S. C.

license: Public Domain

text:
    GUISEPPA RUVOLO, INDIVIDUALLY AND AS GUARDIAN AD LITEM OF ONFRIO RUVOLO, AN INFANT, PLAINTIFFS, v. UNITED STATES STEEL CORPORATION AND UNITED STATES STEEL SUPPLY COMPANY, DEFENDANTS AND THIRD-PARTY PLAINTIFFS, v. SUPERMARKETS GENERAL CORPORATION, THIRD-PARTY DEFENDANT
    Superior Court of New Jersey Law Division
    Decided January 7, 1975.

      Messrs. Shevick, Ravich, Koster Baumgarten, attorneys for plaintiffs (Mr. Arnold Koster, of counsel).

      Messrs. Stryker, Tams & Dill, attorneys for United States Steel Corporation and United States Steel Supply Company (Mr. Burtis W. Horner, of counsel).

      Messrs. McElroy, Connell, Foley & Geiser, attorneys for Supermarkets General Corporation (Mr. George J. Kenny, of counsel, Ms. Linda A. Palazzolo on the brief).
   Kentz, J. S. C.

Third-party defendant Supermarkets General Corporation (herein Supermarkets) has filed a motion to dismiss the third-party complaint of defendants United States Steel Corporation and United States Steel Supply Company (both herein U. S. Steel) on the ground that it is barred by the New Jersey Workmen’s Compensation Act, N. J. S. A. 34:15-1 et seq., due to plaintiff Euvolo’s prior recovery of workmen’s compensation benefits from Supermarkets.

Plaintiff, while employed by Supermarkets, operated a steel-strapping or wirebanding machine which was manufactured and owned by U. S. Steel and leased to Supermarkets. The machine allegedly malfunctioned, a piece of wire snapped and the wire struck the plaintiff in the left eye.

On January 18, 1972 plaintiff, by his guardian ad litem, Guiseppa Onfrio, filed a petition with the Division of Workmen’s Compensation against Supermarkets and subsequently received a judgment of $15,000.

Plaintiff thereafter filed a complaint against U. S. Steel alleging, among other things, strict liability plus breach of express and implied warranties.

IT. S. Steel, by order of May 22, 1974, joined Supermarkets as a third-party defendant, alleging that Supermarkets was the sole cause of any negligence in that it was negligent both in the maintenance of the machine and in the failure to give proper instructions to plaintiff. IT. S. Steel, as lessor of the machine, contends that Supermarkets as lessee failed to notify IT. S. Steel of the existence of any malfunctions with the machine which required the lessor’s expertise as provided in the lease agreement.

Based on this alleged sole negligence of Supermarkets, IT. S. Steel seeks indemnification from Supermarkets to the full extent of any damages recovered by plaintiff against IT. S. Steel.

Supermarkets contends that N. J. S. A. 34:15-8 of our Workmen’s Compensation Act bars any indemnification claim against them by the third-party plaintiffs.

N. J. S. A. 34:15-8 states-

Such agreement shall be a surrender by the parties thereto of their rights to any other method, form or amount of compensation or determination thereof than as provided in this article and an acceptance of all the provisions of this article, and shall bind the employee himself and for compensation for his death shall bind his personal representatives, his widow and next of kin, as well as the employer, and those conducting his business during bankruptcy or insolvency.
If an injury or death is compensable under this article, a person shall not be liable to anyone at common law or otherwise on account of such injury or death for any act or omission occurring while such person was in the same employ as the person injured or killed, except for intentional wrong.

N. J. S. A. 34:15-8 provides that when an employee has elected to accept the benefits of the Compensation Act, the employer shall pay compensation to the employee for his personal injuries. Such an election by the employee then creates certain rights and limitations, including a prohibition of lawsuits by the employee against the employer.

N.J.S.A. 34:15-8 effectively bars a suit by plaintiff against Supermarkets by way of direct tort action. Farren v. N. J. Turnpike Auth., 31 N. J. Super. 356 (App. Div. 1954). Similarly, U. S. Steel cannot herein implead Supermarkets on a tort theory. Public Service Electric & Gas Co. v. Waldroup, 38 N. J. Super. 419, 436 (App. Div. 1955). Waldroup holds (at 437) that a defendant in a tort action brought by an employee may not join the employer as a third-party defendant in order to seek contribution from him as a joint tortfeasor.

Therefore, if there is no tort liability on the part of Supermarkets to plaintiff, then U. S. Steel’s claim for indemnification likewise cannot rest upon Supermarkets’ liability to plaintiff, but must rest either upon an express contract or an implied obligation imposed by law in view of the relationship of the parties.

U. S. Steel admits that no express indemnification clause exists in the lease agreement, but urges that the relationship of lessor-lessee imposed upon Supermarkets a duty to safely operate the machine as well as provide proper supervision and instruction to those employees operating the machine.

The Waldroup decision provides a discussion and delineation of the two concepts of joint tortfeasor contribution versus indemnification:

It will be noted that plaintiff’s statment of claim sought recovery either for the entire $3,000, which, if allowed, would be by way of indemnity, or such part thereof as might be recoverable if it were found that plaintiff and defendant were joint tortfeasors, which, if allowed, would be by way of contribution. There is, of course, a fundamental difference between indemnity and contribution. The right of indemnity rests upon a difference between the primary and the secondary liability of two persons each of whom is made responsible by law to an injured party. It is a right which enures to a person who, without active fault on his own part, has been compelled, by reason of some legal obligation to pay damages occasioned by the initial negligence of another, and for which he himself is only secondarily liable. The difference between primary and secondary liability is not based on a difference in degrees of negligence or on any doctrine of comparative negligence, — a doctrine which, indeed, is not recognized by the common law. See Fidelity & Casualty Co. of New York v. Federal Express, Inc., 6 Cir., 136 F. 2d 35, 40. It depends on a difference in the character of kind of wrongs which cause the injury and in the nature of the legal obligation owed by each of the wrongdoers to the injured person. [38 N. J. Super at 431]

The Waldroup court concluded (at 436-437) that the Workmen’s Compensation Act did in fact bar a claim for indemnity when the relationship between the parties was that of joint tortfeasors.

The cases involving New Jersey law, while upholding the bar to indemnification between joint tortfeasors, also recognize that a right to indemnity may arise out of a special legal relationship of the parties. In Karadis Bros. Painting Co. v. Pennsylvania National Mut. Cas. Ins. Co., 119 N. J. Super. 446, 453 (Ch. Div. 1972) it was stated that “the insured cannot be exposed to liability in the Law Division suit unless by reason of an obligation assumed by contract.”

The Court of Appeals for the Second Circuit in Slattery v. Marra Bros., 186 F. 2d 134 (1951), while dismissing a third-party complaint based on indemnification between joint tortfeasors, held that

*■ * * we shall asume that, when the indemnitor and indemnitee are both liable to the injured person, it is the law of New Jersey that, regardless of any other relation between them, the difference in gravity of their faults may be great enough to throw the whole loss upon one. We cannot, however, agree that the result is rationally possible except upon the assumption that both parties are liable to the same person for the joint wrong. If so, when one of the two is not so liable, the right of the other to indemnity must be found in rights and liabilities arising out of some other legal transaction between the two. [at 139; emphasis supplied]

It is the existence of a special legal relationship sufficient to impose certain duties and a subsequent breach of those duties that permits an implied indemnification.

In Hagen v. Koerner, 64 N. J. Super. 580 (App. Div. 1961), a claim was allowed for implied indemnification arising out of the breach of duties of a legal relationship, namely, one of agency. The Hagen court distinguished the Farren case as inapplicable “because the third-party complaint seeks indemnification by reason of the agency relationship of the parties, and does not seek contribution as against a joint tortfeasor.” Id. at 584. The court went on to state, “It is well established that an employer may be made to respond indirectly for the damages recoverable by the injured employee, beyond his workmen’s compensation liability, on principles of express or implied indemnification.” Id.

The United States Supreme Court in Ryan v. Pan-Atlantic, 350 U. S. 124, 130-131, 76 S. Ct. 232, 100 L. Ed. 133 (1955), likewise recognized that a breach of an independent duty owed by the employer to the third party wiR create a claim for implied indemnity.

I have found no New Jersey case which specifically establishes whether a lessor-lessee relationship is one upon which a claim for implied indemnification can rest.

As stated in 2 Larson, Workmen’s Compensation, § 76.42:

If a third party and employer stand in a special legal relationship that carries with it the obligation to indemnify the third party, this relational right of indemnity may be enforced. * * * Such a relationship is that of a bailee to a bailor. [Emphasis supplied]

In 41 Am. Jur. 2d, Indemnity, § 520, it is said that “A right to implied indemnity among tortfeasors may arise out of a contractual or special relationship between the parties * * See 42 C. J. S. Indemnity § 20 et seq.; Herrero v. Atkinson, 227 Cal. App. 2d, 69, 38 Cal Rptr. 490 (D. Ct. App. 1964); Larson v. City of Minneapolis, 262 Minn. 142, 114 N. W. 2d 68 (Sup. Ct. 1962); Crouch v. Tourtelot, 350 S. W. 2d 799 (Mo. Sup. Ct. 1961).

I conclude that the relationship of lessor-lessee is a sufficient special legal relationship to create duties between Supermarkets and U. S. Steel, and upon a breach of those duties by Supermarkets there may be a claim for recovery based on implied indemnification.

Accordingly, the motion to dismiss the third-party complaint is denied.


author: Yaccarino, J. S. C.

text:
    STATE OF NEW JERSEY, PLAINTIFF, v. SALLY L. BRYAN, DEFENDANT.
    Superior Court of New Jersey Law Division
    Decided November 15, 1974.

      Mr. Robert D. Campbell for defendant (Messrs. Kolodziej and Cohan, attorneys).

      Mr. George Ciszak of the Attorney General’s Office for plaintiff.
   Yaccarino, J. S. C.

This matter comes before the court on an application by defendant to suppress the results of a breathalyzer test on the ground that the test ampoule used in the test administered to her is no longer available for rechecking by her own expert.

The salient facts are as follows. On April 22, 1974 defendant was arrested in Wall Township for suspected drunk driving. She was requested to submit to a breathalyzer test, to which she consented. She was given the appropriate warning regarding her right to have independent testing by a person of her choosing. She voluntarily submitted to the test. The ampoule used in the test was subsequently discarded pursant to department regulations. The parties stipulated that the machine was in proper working order, that the test was properly administered, and that the operator was duly qualified. Defendant offered no testimony on her own behalf but relied solely upon the decision rendered by the court in State v. Teare, 129 N. J. Super. 562 (Cty. Ct. 1974). In that case defendant produced a chemist who testified to a theory which he concluded could enable the chemical testing of the contents of the test ampoule to verify the accuracy of the test results.

At the hearing in the present case the State produced Eiehard Saferstein. The witness testified that he earned a Bachelor of Science degree in Chemistry in 1963, a Master of Science degree in Chemistry in 1967, and was awarded a Ph.D. in Organic Chemistry in 1970, and that he was presently chief forensic chemist at the New Jersey State Police Porensic Science Bureau. His prior employment in forensic chemistry included service in the United States Treasury Department from 1964 to 1969. Prom 1969 through 1970 he was an analytic chemist with the Shell Chemical Company, and from 1970 to the present he has served as chief chemist at the State Police Laboratories. The witness testified that he was very familiar with the testing device commonly referred to as the breathalyzer. He stated that once the test ampoule was removed from the testing machine, there was no known way of reinserting the ampoule in the same position and that such a reinsertion would affect subsequent readings because of the concept of refraction. He stated, further, that there was no substance to the theory that the chemicals in the test ampoule could be extracted and subsequently used to test the machine reading. He gave numerous reasons for his conclusion. He testified that he was very familiar with the theory expounded by Dr. Volpe in the Teare ease. He further stated that he had searched scientific literature and knew of no effort to prove the theory expounded by Dr. Volpe.

In summary, Dr. Saferstein’s testimony was contrary to the testimony of Dr. Volpe in Teare. Dr. Saferstein stated numerous reasons, why the Volpe suggestions in Teare were not entirely accurate. Any rebalancing of the instrument would indeed be difficult and would require some expertise. A removal and reinsertion of the ampoule would probably change the reading, and it would be impossible after reinsertion to reproduce the initial results obtained on the breathalyzer.

The Teare testimony stated that the ampoule could be tested as to the volume of acetic acid contained in the vial. Theoretically, this can be accomplished, but to Dr. Safer-stein’s knowledge this experiment has never been performed. Dr. Volpe said in Teare that a vapor phase chromotograph (v.p.c.) can be used in theory to extract acetic acid from the ampoule. Dr. Saferstein felt that a v.p.c. can be used in theory, but that this concept presents a strong likelihood that a high margin for error exists; all the acid is needed to get an accurate reading and all the acid cannot be removed because of oxidation. In order for a prior used ampoule to be tested, it must be protected in an inert atmosphere. This would necessitate laboratory type conditions; yet, the possibility of contamination in the air always .exists.

The long-term standard experimentation inherent in a scientific investigation is absent in this situation. According to Dr. Saferstein: “The first step in scientific reasoning is to propose the theory. The second step is to support that theory with experimental evidence. We have reached the first step in this process, now I wait for the second.”

It is precisely because of the elicited testimony of Dr. Saferstein that this court must conclude that the theories espoused by Dr. Volpe in Teare are in their embryonic stage. Before adopting the Teare theories as part of the law governing discovery in breathalyzer matters, it would also be wise for the court to wait for their general acceptance as scientific fact, i. e., their validity must be established by the fundamental scientific method of trial and error.

Sufficient safeguards presently exist to find the breathalyzer test indeed accurate and dependable. The principle of the breathalyzer machine has been established and proven as a scientific fact. State v. Miller, 64 N. J. Super. 262 (App. Div. 1960). The possibility that error exists in the machine’s inherent operation is indeed quite remote. The machine does not have to have a universal infallibility to be accepted by the court. See State v. Johnson, 42 N. J. 146 (1964).

This court is satisfied that the present method of checking the ampoule is accurate and drastically cuts down any change of error in the workings of the machine. This court, upon hearing the testimony of Dr. Saferstein and finding the theory in Teare to be speculative, finds no reason to doubt the essential fairness and adequacy of the test. The present method of spot-checking test ampoules has recently been reaffirmed. See State v. Dickens, 130 N. J. Super. 73 (App. Div. 1974); State v. DeVito, 125 N. J. Super. 478 (App. Div. 1973). The test has been deemed to be accurate; to justify a new method of cheeking based upon nebulous theories would be tantamount to judicial mischief-making.

This court does not find a due process argument. A denial of due process calls for a violation of fundamental fairness. Here defendant based her argument on theories that have not been established by the scientific community itself. Until Dr. Volpe’s theories are supported by tangible facts, the argument that a due process question exists is not tenable. N. J. S. A. 39:4:50 et seq. incorporates and provides for a sufficient constitutional means by which a defendant can test the integrity of the breathalyzer machine.

N. J. S. A. 39:4-50.2(b), (e) and (d) provide:

(b) A record of the taking of any such sample, disclosing the date and time thereof, as well as the result of any chemical test, shall be made and a copy thereof, upon his request, shall be furnished or made available to the person so tested.
(c) In addition to the samples taken and tests made at the direction of a police officer hereunder, the person tested shall be permitted to have such samples taken and chemical tests of his breath, urine or blood made by a person or physician of his own selection.
(d) The police officer shall inform the person tested of his rights under subsections (b) and (c) of this section.

The foregoing statutory mandate provides a means consistent with “due process” by which a defendant may verify the test he has consented to by the police authorities. This court finds the statute meets the minimum standard of “due process” and therefore is entitled to a presumption of constitutionality. Male v. Ernest Renda Contracting Co., Inc., 64 N. J. 199 (1974); WHYY, Inc., v. Glassboro, 50 N. J. 6 (1967). To comport with due process the procedures followed need only be fair and reasonable. The test as currently constituted m'eets such requirements. Such a test, if properly undertaken, violates no constitutional safeguard. State v. Macuk, 57 N. J. 1 (1970).

The State should not be forced to afford the defendant a second chance' to check the workability of the machine when defendant has the opportunity under N. J. A. 39:4-50.2 (c) to an independent test. Also, since the feasibility of such a retesting has been at best mere' scientific theory, the argument that a due process issue exists is without merit. Accordingly, defendant’s motion to suppress is denied.


author: Matthews, P. J. A. D.

text:
    STATE OF NEW JERSEY, DEPARTMENT OF ENVIRONMENTAL PROTECTION, PLAINTIFF-RESPONDENT AND CROSS-APPELLANT, v. JERSEY CENTRAL POWER & LIGHT COMPANY, A NEW JERSEY CORPORATION, DEFENDANT-APPELLANT AND CROSS-RESPONDENT.
    Superior Court oí New Jersey Appellate Division
    Argued October 30, 1974
    Decided March 21, 1975.

      Before Judges Matthews, Fritz and Botter.

      Mr. Robert O. Brokaw argued the cause for appellant Jersey Central Power & Light Company.

      Mr. Lewis Goldshore, Deputy Attorney General, argued the cause for respondent State of New Jersey (Mr. Robert J. Del Tufo, Acting Attorney General, attorney; Mr. Stephen Skillman, Assistant Attorney General, of counsel).
   The opinion of the court was delivered by

Matthews, P. J. A. D.

Defendant was charged by plaintiff Department of Environmental Protection (DEP) with violations of N. J. S. A. 23:5-28 and 58:10-23.6 in the operation of its nuclear generating plant located at Oyster Creek in Lacey and Ocean Townships, Ocean County. The first two counts of the complaint charged the statutory violations and sought penalties, and the third count sought compensatory damages for the harm done to public resources. At the conclusion of a six-day nonjury trial, the trial judge dismissed the second count charging a violation of N. J. S. A. 58:10-23.6, and thereafter, in a reported opinion, found that defendant violated N. J. S. A. 23 :5-28 and imposed a penalty of $6,000. He also awarded $935 to the State as damages for fish killed. State v. Jersey Central Power & Light Co., 125 N. J. Super. 97 (Law Div. 1973).

Defendant’s atomic power generating plant is situated on a tract of land bounded by the south branch of the Forked River on the north, Oyster Creek on the south and U. S. Highway Route 9 on the east. During construction of the plant an artificial canal was dug which connected the river and the creek which previously had not been connected. A dike was constructed across the canal which divided it into an intake portion and a discharge portion. The dike prevents the flow of water between the river and creek unless it is pumped. Seven pumps are located in the nuclear generating station, four circulating pumps each with a capacity of 115,000 gallons a minute and three dilution pumps each having 260,000 gallons a minute capacity.

When the plant is in operation, cooling water is pumped by the four circulating pumps from, Forked River into an intake canal, through the condensers under the generators where it is heated about 48 degrees in the process of condensing steam and is then discharged into the discharge canal and thence into Oyster Creek. The water discharged into the creek is approximately 25 degrees Fahrenheit warmer than the water in the river. The warm water discharge raised the temperature of the creek waters which had the effect of attracting fish. In addition, the three dilution pumps pump water directly from the intake canal into the discharge canal. The discharge of the combined operation of the pumps serves to satisfy the minimum requirements established by the Atomic Energy Commission for the dilution of such radioactive liquid effluents which may be discharged in operation of the generator.

Defendant has been issued a provisional operating license by the Atomic Energy Commission under which it currently operates the Oyster Creek facility. That license incorporates various technical specifications which govern the method of operation. Among those is the requirement to shut down the nuclear reactor when unidentified leakage of reactor coolant into the primary containment reaches a rate of five gallons per minute.

On January 28, 1972 it was determined that unidentified leakage of reactor water inside the primary containment was approaching the allowable maximum under the specifications. Consequently the plant was shut down on that date. On the shutdown date and for three days thereafter three circulating pumps and one dilution pump continued in operation. Since the plant was no longer operating, the discharge of heated water stopped and only the colder river water was pumped into the creek. As a result the temperature of the creek fell rapidly — approximately 13 degrees in 24 hours.

Thereafter, upwards of 500,000 menhaden, a species of fish important for commercial uses, were found dead in the creek. Examination of the water in the creek and samples of the dead fish by state inspectors disclosed no matter harmful or injurious. Death of the menhaden was therefore attributed to the thermal shock caused by the sudden drop in water temperature.

I

The 'first issue raised is whether N. J. S. A. 23:5-28 applies to the discharge of uneontaminated, unheated water into tidal waters of the State. It is conceded that Oyster Creek is subject to tidal flow. The statute, in pertinent part, reads:

No person shall put or place into, turn into, drain into, or place where it can run, flow, wash or he emptied into, or where it can find its way into any of the fresh or tidal waters within the jurisdiction of this State any petroleum products, debris, hazardous, deleterious, destructive or poisonous substances of any kind; * * *. In ease of pollution of said waters by any substances injurious to fish, birds or mammals, it shall not be necessary to show that the substances have actually caused the death of any of these organisms.

It also includes a penalty not to exceed $6,000 for its vR olation.

Defendant argues that if the Legislature intended tills statute to prohibit the discharge of heated or cold water into the State’s waters, it would have provided by “apt legislative language” that thermal pollution constituted a violation of the statute. It also contends that since the Legislature referred to thermal pollution in N. J. S. A. 13 .TD-9, the absence of such a reference in the statute here under consideration unquestionably indicates that the Legislature did not intend to include thermal pollution within the prohibitions of N. J. S. A. 23:5-28.

We are unimpressed with this argument. First, we are satisfied that the plain meaning of the statute embraces the conduct which was prosecuted here. The Legislature clearly intended to prohibit the discharge of any substance into the waters of this State which would be hazardous, deleterious, destructive or poisonous to any form of life. The facts adduced at the trial below disclose that the introduction of the cold water into the artificially heated environment of Oyster Creek in which the menhaden were living caused their destruction. Obviously, the introduction of the cold water was deleterious to the health of the menhaden — they died. Things cannot be more deleterious than that. Second, this clear import of the statute is supported by its legislative history. As the trial judge noted in his opinion, one of the senators speaking on behalf of the sponsor of the legislation while it was pending in the Senate noted that the intent in enacting the bill was not to try to define, as the law then did, any of the specific substances that would cause contamination. “Bather the object of the legislation is to say that anyone who permits any injurious substances which have effects that are detrimental to the inhabitants of the waterways shall be responsible for doing it.” See 125 N. J. Super. at 100-101.

Defendants argument would have us ignore the words employed by the Legislature in the statute. The words “hazardous”, “deleterious,” “destructive” and “poisonous” all have different shadings of meaning. Water, for example is not hazardous, deleterious, destructive or poisonous to fish. Water which unduly raises or lowers the temperature of water then constituting the environment of fish can be hazardous, and may become deleterious and destructive to the fish, although never poisonous to them. What the Legislature has sought to do in employing the general language that it has, is to prohibit the discharge of any substance, the effect of which will endanger or destroy the eco-system, its inhabitants and human life.

Defendant also argues that the Legislature intended by the passage of this act to prohibit the discharge of substances whose chemical composition is such as to make them inherently hazardous, deleterious, destructive or poisonous. Only a tortured reading of the statutory language can lead to such a result. Perhaps the best answer to this argumtent is a reference to the predecessor statutes covering this subject. N. J. S. A. 23:5-28 had as its source L. 1937, c. 64, § 2. That section prohibited the discharge of any “dyestuff, coal tar, sawdust, tanbark, lime, refuse from gas houses, or other deleterious or poisonous substances” into any of the waters of the State in quantities destructive of life or disturbing the habits of fish inhabiting those waters. A 1950 amendment to the statute made no change pertinent here. The statute was again amended by the L. 1968, c. 329. That amendment deleted the specification of the particular prohibited substances as well as the words “in quantities destructive of life or disturbing the habits of fish.” The statute then read:

No person shall put or place into, turn into, drain into, or place where it can run, flow, wash or be emptied into, or where it can find its way into any of the fresh or tidal waters within the jurisdiction of this State any * * * deleterious, destructive or poisonous substances of any kind; * * *.

The statute remained in this form until it was again amended to its present form by L. 1971, c. 173. The last amendment inserted specific references to petroleum products and debris, and added the word “hazardous” as an additional description of the character of substances prohibited.

In our view, the legislative history just set forth demonstrates a legislative intent to prohibit any discharge into the waters of this State by anyone if such discharge will be hazardous, deleterious, destructive or poisonous to life. The significance of the specific reference to petroleum products and debris is fairly apparent. Petroleum products are not generally miscible with water and usually float on its surface, causing problems different from those discharges which readily mix with the water. The term “debris,” which wonld include such things as building materials, old tires and metal, would cause a still further hazard, for example, physical damage to individuals and inhabitants of the waters.

We cannot accept defendant’s contention that because the term “hazardous substances” is defined in N. J. S. A. 58:10-23.3 as “such elements and compounds which, when discharged in any quantity into * * * the waters of this State * * * preSen.ts a serious danger to the public health or welfare, including but not limited to, damage to the environment, fish, shellfish, wildlife, vegetation, shorelines, stream banks, and beaches,” the statute here under consideration must he construed to prohibit only those substances which by their chemical composition are hazardous, deleterious, destructive or poisonous, no matter how small the amount discharged, or regardless of the conditions or circumstances under which the discharge occurs. The argument is non sequitur. Perhaps the definition of hazardous substances contained in N. J. S. A. 58:10-23.3 would be helpful in determining what that term means as used in N. J. S. A. 23:5-28. It does not, in our opinion, shed any light on the definition of the other adjectives employed.

II

Defendant argues that the construction placed upon N. J. S. A. 23:5-28 by the trial judge and its application to defendant’s conduct deprive the defendant of due process of law'. The trial judge held that cold water may be a pollutant in one instance and not in another, and that its discharge by defendant into the warmer water of Oyster Creek constituted the introduction of a deleterious substance into those waters in violation of N. J. S. A. 23:5-28. Defendant contends that by construing the statute in this manner the trial judge has rendered it unconstitutional because of vagueness. It contends that under that construction the question of violation of the statute would depend upon conduct which would not be regarded as prohibited in advance.

Defendant’s argument in this connection relies to a great extent on its urged construction of the statute which would prohibit the discharge of only those substances which are inherently hazardous, deleterious, destructive or poisonous, a construction which we have rejected. The argument also somewhat conveniently overlooks defendant’s knowledge that the normal operation of its generating plant caused the elevation of the temperature of Oyster Creek, which in turn attracted fish to the area at times when they ordinarily would not have been present. Defendant does not assert that it was ignorant of the fact that a sudden lowering of the temperature of the waters would have a deleterious effect on those fish. A clear object of the statute is to prevent discharges harmful to life in the waters of this State, an appropriate regulatory object of the Legislature. Since the conduct sought to be controlled is not fairly susceptible to precise definition, general language may constitutionally be employed. State v. New York Central R. R. Co., 37 N. J. Super. 43 (App. Div. 1955). We find the language employed by the Legislature in N. J. S. A. 23:5-28 meets the constitutional test.

Ill

Defendant also claims that the trial judge erroneously considered testimony of a legislator given at a hearing on the bill during the course of its passage as extrinsic aid to the construction of N. J. S. A. 23:5-28. Dumont Lowden, Inc. v. Hansen, 38 N. J. 49 (1962), is cited as authority for this proposition. As we noted above, the trial judge, in concluding that the introduction of cold water into Oyster Creek violated the statute, referred to the statement oí a legislator given at a public hearing.

Defendant’s argument studiously ignores decisions to the contrary beginning with Deaney v. Linden Thread Co., 19 N. J. 578 (1955), in which the scope of legislative history which courts are permitted to examine was expanded to include the legislative introducer’s statement attached to a bill at the time of its passage. The later decision in N. J. Pharmaceutical Ass’n v. Furman, 33 N. J. 121 (1960), approved the use of information contemporaneous with the passage of the bill as an aid to statutory construction: (“Courts may, of course, freely refer to legislative history and contemporaneous construction lor whatever aid they may furnish in ascertaining the true intent of the legislation.” 33 N. J. at 130). More recently, this trend has been evidenced by the approval of the use of letters written by the person suggesting the legislation §nd statements by the governor in office at the time of its passage, State v. Madden, 61 N. J. 377, 388 (1972); and memoranda prepared by those who took part in the drafting of the legislation. Data Access Systems, Inc. v. State, 63 N. J. 158, 165 (1973); In re Lambert, 63 N. J. 448, 452-453 (1973).

Contrary to defendant’s assertions, our courts have adopted the policy of considering a broad spectrum of information (weighing its credibility and relevance) as a tool in determining the intent of the Legislature:

Nor do we think it is improper to consider materials which may never have met the legislative eye. While a proposed enactment may first see the light of day in legislative chambers, its conception and preparation have frequently taken place elsewhere. This is normally true of administrative proposals. Of course such materials must be carefully scrutinized and their weight and authenticity evaluated, but we see no merit in a rule demanding their total exclusion from judicial consideration. [Data Access Systems, Inc. v. State, above, 63 N. J. at 167]

Dumont Lowden, Inc. v. Hansen, above, on which defendant relies, is readily distinguishable since it dealt with post-adoption, self-serving statements of legislators. Accordingly, we find it was proper for the trial judge to have considered the assemblyman’s explanation of the bill before a committee of the Legislature as an aid to construction.

IY

The third count of the complaint alleged that defendant’s negligent or willful acts caused damage to the public resources (fish held by the State in trust for the public) and as a consequence the State was entitled to compensatory damages. Defendant describes this count of the complaint as a claim for damages predicated on common law liability for tort. Defendant now contends that in discharging the cold water into Oyster Creek it performed neither an intentional nor negligent act; further, that it may not be held to a standard of strict liability, and, therefore, it should not be held liable in tort.

The trial judge did not discuss the standards under which he found defendant liable in tort, and, indeed, the State did not discuss either intent or fault concepts during the trial. We find, however, that the evidence presented below established facts which support a determination that defendant was negligent. Its own employees admitted in their testimony, for example, that there were ways alternative to the pumping method employed to dispose of radioactive wastes which may have remained in the plant at the time of its shutdown. Defendant’s plant manager informed one of the State’s inspectors that he would cease operation of the pumps the next time it became necessary to shut down the condenser. Again, although no immediate fish kills resulted from earlier shutdowns, the fact finder could have found from the evidence that defendant should have known, and probably did know, that continued operation of the circulating and dilution pumps while the condenser was not operating would seriously reduce the water temperature, and that such sharp reduction in water temperature would have damaged aquatic life. Defendant has been licensed by the Atomic Energy Commission to operate its atomic powered generating plant because of its professed expertise in this area. This expertise has been confirmed by the Federal Government. Thus, the standards to be applied here involve that of the reasonably prudent plant operator and not the reasonably prudent man in the street. The elementary physical and thermodynamic phenomena involved here are unquestionably, or should unquestionably be, within defendant’s expertise. Considering this observation, there should be no question as to the foreseeability of the results of the cold water pumping operation. Defendant may not be exempted from the use of reasonable judgment merely because prior experiences were such that it did not subjectively expect a fish kill to result from its acts.

The trial judge did not specify, and we do not conclude from the record or his opinion, that he used strict liability standards in reaching his conclusion that defendant was liable under the third count. We find it unnecessary to discuss this issue, although suggested by both parties, because it is apparent that the fish kill was caused solely by the pumping of the cold water which cannot be considered an ultra-hazardous activity. Any radioactive hazard that did exist could have been eliminated simply by turning off the water pumps. The damage that resulted did not occur from the operation of the nuclear generator. It obviously occurred because of a conscious choice exercised by defendant which left the water pumps running while the plant was shut down.

We conclude that the trial judge was presented with sufficient credible evidence from which he reasonably could have concluded that defendant was negligent under the circumstances. State v. Johnson, 42 N. J. 146 (1964).

V

In its fourth and fifth defenses to the State’s complaint defendant claimed that the shutdown of its generating plant and the continued circulation of water into the discharge canal were necessitated by requirements contained in its operating license issued to it by the Atomic Energy Commission. In short, defendant claims that unavoidable necessity required it to perform the acts that the State claims constituted the violation of N. J. S. A. 23:5-28 as alleged in the first count of the complaint. Our courts have long recognized the doctrine of unavoidable necessity. See e. g., Weehawken Tp. Bd. of Health v. N. Y. Central R. Co., 4 N. J. 293, 301 (1950); State v. Mundet Cork Corp., 8 N. J. 359, 371 (1952), cert. den. 344 U. S. 819, 73 S. Ct. 14, 97 L. Ed. 637 (1952). We conclude, however, that that defense has no applicability here.

Our review of the record convinces us that defendant failed to meet its burden in showing that it was necessary for it to have operated the circulation and dilution pumps while the plant was shut down. There is nothing in the record to indicate that the plant was emitting radioactive wastes while it was out of operation. Assuming that there -was a concentration of radioactive effluent from undetermined sources in the primary containment area at the time of shutdown, that concentration had not, by defendant’s assertions, reached the allowable limit at the time of shutdown. It seems probable, therefore, although defendant produced no testimony in this regard, that any radioactive material on the premises would have been satisfactorily diluted fairly promptly by a shorter operation of the pumps. Since no further radioactive emissions came from the plant during shutdown, it should be apparent that the continued operation of the pumps was unnecessary. The record does disclose that the probable explanation of the continued operation of the pumps of the plant after shutdown was for the convenience of defendant. One of the employees defended the continued operation of the pumps during shutdown as a measure to prevent corrosion of the condenser tubes from air and to facilitate resumption of the generator operation after repairs had been effected. This is a far cry from the claimed necessity to dilute atomic wastes. Unquestionably, if defendant proved that it was necessary to continue the pumps in operation while the plant was shut down in order to dilute atomic wastes which were then being produced by the plant, the trial judge would have had to cede to federal authority with respect to the operation of the pumps on the ground of preemption. See Northern States Power Co. v. Minnesota, 447 F. 2d 1143 (8 Cir. 1971), aff’d 405 U. S. 1035, 92 S. Ct. 1307, 31 L. Ed. 2d 576 (1972). The record discloses, however, that defendant utterly failed to carry its burden of proof on the issue of necessity (as distinguished from convenience), and the trial judge, therefore, quite properly refused to employ the doctrine in reaching his conclusions.

In view of our findings here, we regard as frivolous defendant’s assertion that.the State is attempting to regulate the disposal of radioactive wastes by challenging its decisior as and when to operate the pumps. We also note that the federal atomic energy statutes and regulations, which are clearly preemptive, specifically provide in 42 U. S. C. A., § 2021 (k) that nothing therein should be construed to affect the authority of any State, to regulate activities for purposes other than protection against radiation hazards. Northern States Power Co. v. Minnesota, above, is not to the contrary.

VT

Both parties agree that the State has an interest which gives it standing to sue under the parens patriae doctrine for injunctive relief from pollution in navigable waters which causes injury to fish. McCready v. Virginia, 94 U. S. 391, 394, 24 L. Ed. 248 (1877); Toomer v. Witsell, 334 U. S. 385, 399, 68 S. Ct. 1156, 92 L. Ed. 1460 (1948). Defendant contends that the third count of the complaint under which the State sought recover]^ on common law principles, of compensatory damages for the destruction of the fish, fails to state a claim upon which relief could be granted. During the trial, and on this appeal, it is defendant’s contention that the State does not have a proprietary right to the fish in its waters sufficient to support an action for compensatory damages for the destruction thereof. The trial judge denied defendant’s motion to dismiss, and we reject this argument on appeal.

The State argues that when fish are destroyed by pollution, thermal or otherwise, the State suffers both environmentally and economically. It argues that fish which are found in tidal waters such as Oyster Creek are tidal resources, and that tidal resources have long been recognized as subject to the public trust doctrine and the objects of special protection. See Arnold v. Mundy, 6 N. J. L. 1, 71 (Sup. Ct. 1821). In that old decision the State’s fishery resource was said to be “in the hands of the sovereign power, to be held, protected, and regulated for the common use and benefit.” Here, the trial judge found that the State had the right and the fiduciary duty to seek damages for the destruction of wild life which are part of the public trust:

The State has not only the right but also the affirmative fiduciary obligation to ensure that the rights o£ the public to a viable marine environment are protected, and to seek compensation for any diminution in that trust corpus. [125 N. J. Super. at 103]

We agree with the trial judge’s conclusion and with his rejection of the artificial differences between the State’s role as public trustee and its role under the fiction of parens patriae. In this bicentennial year it seems only proper that we reject confining concepts such as sovereign interests springing from the original 13 colonies. It seems to us that absent some special interest in some private citizen, it is questionable whether anyone but the State can be considered the proper party to sue for recovery of damages to the environment.

The right of the State to sue under similar circumstances was upheld in the federal decisions in Dept. of N. Res. v. Amerada Hess Corp., 350 F. Supp. 1060, 1067 (D. Md. 1972), motion for relief den., 356 F. Supp. 975 (D. Md. 1973); Maine v. M/V Tamano, 357 F. Supp. 1097 (S. D. Me. 1973), mod. on other grounds, 373 F. Supp. 839 (S. D. Me. 1974). Cf. Dept. of Fish & Game v. S. S. Bournemouth, 307 F. Supp. 922 (C. D. Cal. 1969). Defendant seeks to distinguish the holding in Dept. of N. Res. v. Amerada Hess Corp., above, claiming that that court permitted the State of Maryland to maintain a common law action solely because the state had not enacted legislation upon which to base an action for relief from the owner and operator of a tanker who had discharged oil into the Baltimore harbor. In fact, the holding of the District Court is completely at variance with defendant’s contention:

In upholding the State of Maryland’s right to maintain the instant suit, this Court is not unmindful of the problems faced by the State of Maryland, and the other states of this country, as they engage in the daily battle to halt the pollution of their natural resources. For this Court to hold that unless a state has enacted legislation in the area of pollution control, it may not bring a common law suit to combat this problem, would be to unnecessarily tie the hands of the State in its war against pollution. * * * [350 F. Supp. at 1067]

The two decisions cited by defendant in its support, State v. Dickinson Cheese Company, 200 N. W. 2d 59 (N. D. Sup. Ct. 1972), and Commonwealth v. Agway, Inc., 210 Pa. Super. 150, 232 A. 2d 69 (Super. Ct. 1967), we find to be distinguishable and not persuasive. The North Dakota case interpreted a statute of that state as not providing a right in the state to sue for damages. To the exent the Pennsylvania decision denied “propery right” in the Commonwealth — and the concurring opinion, dissenting from that proposition points out that this is not the primary ground for the decision — we disagree for the reasons set forth above.

YII

The State has cross-appealed, claiming that the award of $935 as damages under the third count is inadequate. Our reading of the record satisfies us that the award made by the trial judge is the only one that could have been made under the proofs adduced by the State. While the measure of damages might have been the extent to which the quality of the environment had been diminished by the actions of defendant, the State’s proofs fell far short of establishing such a basis. As defendant quite properly suggests, damages applying such a standard might well have been speculative. Accordingly, we find no merit to the State’s cross-appeal.

The judgment of the Law Division under the first and third counts of the complaint is affirmed.

      Both the south branch of the Forked River and Oyster Creek were subject to tidal flow prior to the construction of the Oyster Creek generating plant. As a result of defendant’s pumping operations, both streams were made one-directional channels. The tides continued to rise and fall vertically in these waterways .but did not ebb and flow.


author: Lynch, J. A. D.

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. VINCENT D. BAKER, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued March 4, 1975
    Decided March 21, 1975.

      Before Judges Kolovsky, Lynch and Allcorn.

      Mr. Edward J. Ennis, designated counsel, argued for appellant (Mr. Stanley O. Van Ness, Public Defender, attorney) .

      Ms. Susan W. Sciacca, Deputy Attorney General, argued for respondent (Mr. William F. Hyland, Attorney General, attorney).
   The opinion of the court was delivered by

Lynch, J. A. D.

This is one of the three appeals presently before this court arising out of convictions of defendant on separate counts of Monmouth County Indictment No. 557-70. That indictment contained six counts. By agreement of the State the counts were severed for trial or other disposition into three parts, each part referring to a separate date and containing two counts wherein defendant was respectively charged with the possession and sale of heroin.

This appeal relates to defendant's convictions after jury trial on the third and fourth counts of the indictment, respectively charging possession and sale of heroin on December 23, 1970.

As in our decision in A-1631-73, 133 N. J. Super. 398, we reverse because of the trial judge’s improper limiting of cross-examination of Anthony Martinez, an undercover narcotics investigator for the State Police and the key prosecution witness. In the instant case, at the time of his.testimony below Martinez had been indicted by the State for misconduct in office and by the Federal Government for conspiracy to move contraband in interstate commerce. He had not, however, pleaded guilty to the state indictment, in contrast to the situation at the trial of A-1631-73, by which time Martinez had entered a guilty plea to the state indictment.

Since there was no plea of guilty by Martinez on his indictment and no jury conviction thereon at the time of the trial below, there could have been no cross-examination under N. J. S. A. 3A:81-13 with respect to his “convictions.” However, under the same statute the “interest” of a witness may be shown for the purpose of affecting his credibility. Martinez’ “interest” arises from the possibility that in return for his testimony he had received a promise of lenient treatment on the indictments then pending against him or, on the other hand, was apprehensive of more stringent treatment thereon if he did not so testify. The trial court, following a voir dire conducted outside the presence of the jury, during which the witness denied receiving any such promises or holding any such expectations, refused to allow any mention to the jury of either the indictments or Martinez5 suspension from the State Police.

This ruling constituted prejudicial error. Defendant was entitled to have the jury informed of Martinez5 status in the eyes of the law, both from the State’s point of view as well as the Federal Government’s. State v. Curcio, 23 N. J. 521, 527 (1957). The fact that he denied holding any expectation of leniency in return for his testimony was merely another fact to be considered by the jury, not by the trial judge, in assessing his credibility. And it is immaterial for purposes of admissibility whether the pending Indictments relate to the same cause in which the witness is testifying. See Alford v. United States, 282 U. S. 687, 693, 51 S. Ct. 218, 75 L. Ed. 624 (1931); State v. Curcio, supra; State v. Zwillman, 112 N. J. Super. 6, 18-19 (App. Div. 1970), certif. den. 57 N. J. 603 (1971); Annotation, “Preventing or limiting cross-examination of prosecutor’s witness as to his nfotive for testifying,” 62 A. L. R. 2d 610, §§ 3 and 5 (1958).

Since reversal follows we do not reach defendant’s remaining contentions. The convictions on counts three and four of the indictment are reversed and a new trial ordered thereon.

      The other appeals pending in this court are A-1631-72, stemming from convictions after trial on counts one and two of the indictment, and A-520-72 stemming from a conviction entered on count six pursuant to a plea bargain involving counts five and six. Opinions therein are being filed today.


text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. VINCENT D. BAKER, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued March 4, 1975
    Decided March 21, 1975.

      Before Judges Kolovsky, Lynch and Allcorn.

      Mr. Edward J. Ennis, Designated Counsel, argued for appellant (Mr. Stanley C. Van Ness, Public Defender, attorney).

      Ms. Susan W. Sciacca, Deputy Attorney General, argued for respondent (Mr. William F. Hyland, Attorney General, attorney).
   The opinion of the court was delivered by

Lynch, J. A. D.

This is one of the three appeals presently before this court arising out of convictions of defendant on separate counts of Monmouth County Indictment No. 557-70. That indictment contained six counts. By agreement of the State, the counts were severed for trial or other disposition into three parts, each part referring to a seperate date and containing two counts wherein defendant was respectively charged with possession and sale of heroin.

This appeal relates to defendant’s convictions after jury trial on the first and second counts of the indictment, respectively charging possession and sale of heroin on January 7, 1971.

The essence of defendant’s contention on this appeal is that prejudicial error resulted when defense counsel was limited in his cross-examination of the State’s principal witness, Anthony Martinez, an undercover narcotics investigator for the State Police. Martinez testified on direct that he had purchased the heroin from defendant on January 7, 1971. On cross-examination defense counsel brought out the fact that Martinez, at the time of his testimony, was under suspension from the State Police. The trial court sustained the prosecutor’s objection to any further inquiry into this matter, in spite of defense counsel’s proffer that Martinez had in fact pleaded guilty to an indictment charging him with misconduct in office, specifically, in the words of counsel to a charge that “he had agreed to obtain certain controlled dangerous substances for an Ida Merrino (phonetical) and that he became privy to the knowledge of the transactions involving a Michael Zervos, which knowledge he had not transmitted to his immediate superiors.” Defense counsel argues that such cross-examination was proper, first, as evidencing a conviction of crime pursuant to N. J. S. A. 2A:81—12, and, second, as showing possible interest of the witness resting in the hope of favorable treatment in his sentencing in return for his testimony on behalf of the State.

'The State argues that since Martinez had not yet been sentenced pursuant to his guilty plea, there was no “conviction” which would be admissible to affect his credibility under the statute. As to defendant’s contention that the cross-examination was proper to show Martinez’ “interest” and hope of favorable treatment, it is the State’s contention that, since Martinez had been involved in many other similar transactions as an undercover man, and his report on this incident had been prepared long before he was indicted, there was “no chance that his trial testimony was a fabrication invented to mollify the prosecutor.” It is contended that in the absence of a showing that Martinez’ testimony had deviated from his prior reports, there was no prejudice by reason of the restriction of cross-examination. Eurther the State argues, citing Evid. R. 4, that the exclusion of the cross-examination was a' permissible exercise of discretion by the trial judge, particularly in view of the fact that the witness’ criminal involvement did not relate to the cause in which he was testifying.

N. J. S. A. 2A:81-12 provides that, for the purpose of affecting the credibility of a witness his “conviction” of crime or his “interest” may be shown. The first question here is whether a plea of guilty without sentence constitutes a “conviction” within the meaning of that statute.

There is a split of authority as to whether a verdict of guilty without judgment of sentence may be shown to affect credibility. See Annotation, “Permissibility of impeaching credibility of witness by showing verdict of guilty without judgment of sentence thereon,” 14 A. L. R. 3d 1272 (1967). In our own State it was held in State v. Henson, 66 N. J. L. 601 (E. & A. 1901), by a closely divided court, that a plea of guilty or of nolo contendere could be shown for the purpose of affecting credibility of a witness. There the court said:

In Commonwealth v. Lockwood, 109 Mass. 323, Mr. Justice Gray correctly states the distinction between the terms “conviction” and “judgment” in this language:
“ ‘The ordinarly legal meaning of conviction,’ when used to designate a particular stage of a prosecution triable by a jury, is the confession of the accused in open court, or the verdict returned against him by the jury, which ascertains and publishes the fact of his guilt; while ‘judgment’ or ‘sentence’ is the appropriate word to denote the action of the court * * * declaring the consequences to the convict of the fact thus ascertained.” [at 607; emphasis supplied]

The reasoning Henson was approved and followed in Hill v. Maxwell, 77 N. J. L. 766 (E. & A. 1909), and State v. Runyon, 93 N. J. L. 16 (Sup. Ct. 1919); see State v. Duelks, 97 N. J. L. 43, 48 (Sup. Ct. 1922); cf. State v. McCall, 27 N. J. Super. 157, 171 (App. Div. 1953), rav’d on other grounds 14 N. J. 538 (1954).

On an issue of credibility of a witness we believe the logic of the situation compels the conclusion that a plea of guilty is as relevant as a judgment after sentence. The witness’ credibility is equally affected by both and the sentence adds no more taint to that factor than is implicit in a plea of guilty.

And, under State v. Hawthorne, 49 N. J. 130 (1967), trial judges have no discretion under N. J. S. A. 2A:81-12 to disallow impeachment by use of previous convictions. “On the contrary, the parties are invested with the option and if it is exercised the examination must be allowed or the record of conviction received when offered.” Id. at 135.

Furthermore, even in the absence of a conviction, evidence of Martinez’ “interest in the result of the action, proceeding or matter” is clearly admissible under the same statute. We think the rule is the same even where, as here, the potential interest or bias of the witness in favor of the State pertains to his criminal involvement in an unrelated cause. See Alford v. United States, 282 U. S. 687, 693, 51 S. Ct. 218, 75 L. Ed. 624 (1931); State v. Curcio, 23 N. J. 521, 526-527 (1957); State v. Zwillman, 112 N. J. Super. 6, 18-19 (App. Div. 1970), certif. den. 57 N. J. 603 (1971); Annotation, “Preventing or limiting cross-examination of prosecutor’s witness as to his motive for testifying,” 62 A. L. R. 2d 610 (1958) §§ 3 and 5. The difference between the interest of a prosecution witness who is an accomplice and the interest of one who faces trial or sentencing on unrelated criminal charges is solely one of degree. Cf. State v. Mangrella, 86 N. J. Super. 404, 408 (App. Div. 1965). The distinction may affect the weight to be given the impeaching evidence, but not its admissibility. It was for the jury to consider Martinez’ upcoming sentencing, and to evaluate any hopes of leniency, or any fears of stringent treatment, he may have had as a consequence of his testimony. The trial judge committed prejudicial error in limiting the cross-examination of this key prosecution witness. Since reversal follows we do not reach defendant’s remaining contentions.

The convictions on the first and second counts are reversed and a new trial is ordered thereon.

      The other appeals pending in this court are A-2195-72, 133 N. J. Super. 394, stemming from convictions after trial on counts three and four of the indictment, and A-520-72 stemming from a conviction entered on count six pursuant to a plea bargain involving counts five and six. Opinions therein are being filed today.


author: Furman, J. S. C.,

text:
    ARAX EGNER, PLAINTIFF-APPELLANT, v. GEORGE EGNER, DEFENDANT-RESPONDENT. BARBARA GLORIA WALLS, PLAINTIFF-APPELLANT, v. JAMES WALLS, DEFENDANT-RESPONDENT. LOIS A. COON, PLAINTIFF-APPELLANT, v. HOWARD M. COON, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued February 19, 1975
    Decided April 2, 1975.

      Ms. Nadine Taub argued the cause for the appellant Arax Egner.

      Ms. Phyllis G. Warren and Ms. Linda Rosenzweig argued the cause for appellant Barbara Walls (Camden Regional Legal Services, Inc., on the brief).

      Mr. Edward S. Snyder argued the cause for the appellant Lois Coon (Ms. Anne W. Elwell on the brief).
    Before Judges Lynch, Allcorn and Furman.
   Furman, J. S. C.,

Temporarily Assigned. Plaintiffs were granted uncontested divorces but denied leave to resume their maiden names, although without opposition from their husbands. All are mothers of a minor child or children. Three judges in three counties reached this result, relying on the dictum, without citation of authority, in W. v. H., 103 N. J. Super. 24 (Ch. Div. 1968), that “it is against the policy of the court to grant permission to resume a maiden name where unemancipated children who bear a different name are involved” and on a pronouncement, also without citation of authority, in 12 N. J. Practice (Herr-Lodge, Marriage, Divorce & Separation), § 2511 at 620 (1963), that “If there are infant children of the marriage in the wife’s custody, her application for leave to resume her former name will not ordinarily be granted unless good reasons should appear.” The three appeals were consolidated.

The trial judge in the Egner case expressed concern for future harassment of the minor children, who would continue to bear their father’s surname. The trial judge in the Walls case was apprehensive of detriment to the minor child because her name would be different from her mother’s. No evidence admitted at the Egner or Walls trial supported these conclusions. The trial judge in the Goon case pointed out that if plaintiff wished to change her name legally, she might make application to the County Court in a statutory change of name proceeding (N. J. S. A. 2A:52-1 et seq.), and barring a fraudulent purpose, be entitled to such name change.

We do not so construe N. J. S. A. 2A:34-21 or the scope of discretion vested by it in the trial judge. N. J. S. A. 2A:34-21 provides:

The court, upon or after granting a divorce from the bonds of matrimony to either spouse, may allow the wife to resume any name used by her before the marriage, and may also order the wife to refrain from using the surname of the husband as her name.

That statute is in pari materia with N. J. S. A. 2A:52-1 et seq., and to be construed with it. Both are remedial enactments establishing methods of judicial recordation of changes of name. N. J. S. A. 2A:34-21 provides as an alternative to a separate proceeding under N. J. S. A. 2A:52-1 et seq., that a change of name may be sought by a wife in a divorce action and, if granted, be incorporated in the divorce judgment.

N. J. S. A. 2A:52-1 et seq. and parallel legislation in other states have been construed consistently in the light of the common law and not in derogation of it. State v. Librizzi, 14 N. J. Misc. 904, 188 A. 511 (Sup. Ct. 1936); In re Joseph M., 91 N. J. Super. 296 (Cty. Ct. 1966); In re Witsenhausen, 42 N. J. L. J. 183 (C. P. 1919); Marshall v. State, 301 So. 2d 477 (Fla. D. Ct. App. 1974); Petition of Hauptly, ___ Ind. ___, 312 N. E. 2d 857 (Sup. Ct. 1974), rev’g ___ Ind. App. ___, 294 N. E. 2d 833 (Ct. App. 1973); In re Marriage of Banks, 42 Cal. App. 3d 631, 117 Cal. Rptr. 37 (D. Ct. App. 1974); Application of Halligan, 46 A. D. 2d 170, 361 N. Y. S. 2d 458 (App. Div. 1974), rev’g 76 Misc. 2d 190, 360 N. Y. S. 2d 63 (Sup. Ct. 1973); Kay v. Kay, 65 Ohio L. Abs. 472, 112 N. E. 2d 562 (C. P. 1963); Brayton v. Beall, 73 S. C. 308, 53 S. E. 641 (Sup. Ct. 1906).

At common law any adult or emancipated person was at liberty to adopt any name as his legal name except for fraudulent or criminal purpose, without resort to any court. McGarvey v. Atlantic City S. R. Co., 123 N. J. L. 281, (E. & A. 1939); State v. Librizzi, supra; Sobel v. Sobel, 46 N. J. Super. 284 (Ch. Div. 1957); In re Witsenhausen, supra; Hauptly, supra; Stuart v. Board of Supervisors of Elections, 266 Md. 440, 295 A. 2d 223 (Ct. App. 1972); Smith v. United States Cas. Co., 197 N. Y. 420, 90 N. E. 947 (Ct. App. 1910); Halligan, supra; Application of Shipley, 26 Misc. 2d 204, 205 N. Y. S. 2d 581 (Sup. Ct. 1960); Pierce v. Brushart, 153 Ohio St. 372, 92 N. E. 2d 4 (Sup. Ct. 1950); Brayton v. Beall, supra. A third exception to this common law right has been alluded to, that the name itself to be adopted is obscene or otherwise offensive. In re Joseph M., supra 91 N. J. Super. at 298.

Under principles of statutory construction we are precluded from engrafting into N. J. S. A. 2A:34-21 another exception to a divorced wife’s common law right to resume her maiden name, that is, concern for harassment or other detriment to a minor child or children. For do we perceive any significant problem affecting minor children’s welfare. Under many other circumstances such differences in surnames are recognized and even favored legislatively and judicially. Upon remarriage of a divorced woman, a statistical probability, her minor children continue to bear legally the father’s surname. According to Sobel v. Sobel, 46 N. J. Super. 284 (Ch. Div. 1957), the father may restrain his divorced wife from using her second husband’s surname as the children’s surname in school. Change of name to the stepfather’s surname under N. J. S. A. 2A:52-1 may be denied in the absence of consent by the father by birth who has contributed to the child’s support and not otherwise abandoned the child. Marshall v. Marshall, 230 Miss. 719, 93 So. 2d 822 (Sup. Ct. 1957); see Sobel, supra. Upon an annulment a woman resumes her maiden name or other previous name by force of law, irrespective of whether she has a minor child or children. Custody may be awarded to maternal grandparents or others with different surnames upon the death or incapacity of a mother, not to the divorced or estranged father. By administrative regulation (N. J. A. C. 8:2-1.1(b)) and judicial decision (In re Joseph M., supra) the right of the mother is recognized to change the name of her illegitimate child, who lives with her, to that of the consenting father. The right of parents to raise children as they choose, except for the bounds of the criminal law, is entrenched as a constitutionally protected liberty. Pierce v. Society of Sisters, 268 U. S. 510, 45 S. Ct. 571, 69 L. Ed. 1070 (1924). In re Goldfarb, 6 N. J. Super. 543 (Ch. Div. 1949). If the courts intervene a myriad of detriments and embarrassments to minor children may be conjectured.

In re Marriage of Banks, supra, reversed the denial of a change of name to plaintiff in a divorce action, commenting that it would be an empty gesture to deny her leave to resume her maiden name in the divorce action and then grant it in a change of name proceeding; that the scope of discretion is the same in the two proceedings and that any harmful effect on the three children was speculative. Other precedents in accord with Banks are Rich v. Mayer, 7 N. Y. S. 69 (N. Y. City Ct. 1889); Fendall v. Goldsmid, 2 P. D. 263 (1877); 19 Halsbury’s Laws of England, Husband & Wife (3 ed. 1957), § 1350 at 829; Turner-Samuels, The Law of Married Women (1957), at 357.

We conclude that the trial judges on these consolidated appeals abused their discretion under N. J. S. A. 2A:34-21 in refusing changes of name to plaintiffs in granting them divorces. Our conclusion is based upon statutory grounds. Hence we need not resolve the array of constitutional arguments pressed by plaintiffs: denial of freedom of speech, the expression of their independence and individual identity; denial of equal protection of the laws because all others than married women can change their legal names, absent fraudulent or criminal intent; denial of the right of privacy because they are forced to forego their life styles and the psychological benefits of resumed maiden names and to continue to bear the names of their divorced husbands.

Reversed and remanded for entry of judgments in accordance herewith.


text:
    IN THE MATTER OF THE APPLICATION OF BONNIE LEE DANIELS LAWRENCE, ALSO KNOWN AS BONNIE LEE DANIELS, FOR LEAVE TO ASSUME THE NAME BONNIE LEE DANIELS.
    Superior Court of New Jersey Appellate Division
    Argued February 19, 1975
    Decided April 2, 1975.

      Before Judges Lynch, Allcorn and Rurman.

      Mr. Adam Lawrence argued the cause for the appellant (Mr. Adam Lawrence, Ms. Bonnie Lee Daniels on the brief).

      Messrs. Fuerst & Singer, attorneys for Virginia Discala Kasakoff, Amicus Curiae (Mr. William, S. Singer, on the brief).

      Ms. Nadine Taub, attorney for American Civil Liberties Union of New Jersey and Women’s Rights Litigation Clinic of Rutgers Law School, amici curiae.

   Furman, J. S. C.,

Temporarily Assigned. Plaintiff appeals from the denial of her application for a change of name under N. J. S. A. 2A:52-1 from her married to her maiden name. She has been married more than five years. Her husband has consented to her name change. She completed her senior year at law school a few months after the institution of this proceeding. In her complaint she cites as reasons for a resumption of her maiden name that she wishes an identity separate from her husband and regards a change of name as having important professional as well as social implications for her. The couple is childless but of child-bearing age.

The trial judge, in an opinion published in 128 N. J. Super. 312 (Law Div. 1974), concluded:

This court has great concern for the stability of the family and the marriage relationship * * *. The situation which would be created by the granting of plaintiff’s application, vis., plaintiff and her husband each continuing to use the surnames with which they were born, would cause great confusion in the community in which they live and could well have a traumatic effect upon any children they might have. This is especially true in the light of plaintiff’s use of her husband’s surname subsequent to her marriage. The problem would also arise of what surname to give the children of their marriage and the confusion and bureaucratic nightmares the process of selecting a surname would create.

N. J. S. A. 2A:52-1 is remedial legislation establishing a method of judicial recordation of changes of name. It has been construed consistently in the light of and not in derogation of the common law, which it does not supersede. State v. Librizzi, 14 N. J. Misc. 904, 188 A. 511 (Sup. Ct. 1936); In re Joseph M., 91 N. J. Super. 296 (Cty. Ct. 1966); In re Witsenhausen, 42 N. J. L. J. 183 (C. P. 1919).

Other states have similarly construed their change of name statutes. Marshall v. State, 301 So. 2d 477 (Fla. D. Ct. App. 1974); Petition of Hauptly, Ind., 312 N. E. 2d 857 (Sup. Ct. 1974), rev'g Ind. App., 294 N. E. 2d 833 (D. Ct. App. 1973); In re Marriage of Banks, 42 Cal. App. 3d 631, 117 Cal. Rptr. 37 (D. Ct. App. 1974); Application of Halligan, 46 A. D. 2d 170, 361 N. Y. S. 2d 458 (App. Div. 1974), rev'g 76 Misc. 2d 190, 350 N. Y. S. 2d 63 (Sup. Ct. 1973); Kay v. Kay, 65 Ohio Law Abst. 472, 112 N. E. 2d 562 (C. P. 1953); Brayton v. Beall, 73 S. C. 308, 53 S. E. 641 (Sup. Ct. 1906).

At common law any adult or emancipated person was at liberty to adopt any name as his legal name except for fraudulent or criminal purpose, without resort to any court. McGarvey v. Atlantic City & S. R. Co., 123 N. J. L. 281 (E. & A. 1939); State v. Librizzi, supra; Sobel v. Sobel, 46 N. J. Super. 284 (Ch. Div. 1957); In re Witsenhausen, supra; Hauptly, supra; Stuart v. Board of Supervisors of Elections, 266 Md. 440, 295 A. 2d 223 (Ct. App. 1972); Smith v. United States Cas. Co., 197 N. Y. 420, 90 N. E. 947 (Ct. App. 1910); Halligan, supra; Application of Shipley, 26 Misc. 2d 204, 205 N. Y. S. 2d 581 (Sup. Ct. 1960); Pierce v. Brushart, 153 Ohio St. 372, 92 N. E. 2d 4 (Sup. Ct. 1950); Brayton v. Beall, supra. A third exception to this common law right has been alluded to, that the name itself to be adopted is obscene or otherwise offensive. In re Joseph M., supra, 91 N. J. Super. at 298.

Authorities in various common law jurisdictions have reached apparently conflicting conclusions whether a woman on marriage assumes her husband's surname by custom or by law. The authorities are nevertheless reconcilable. A woman may retain her maiden name by antenuptial agreement or by holding herself out consistently by that name after marriage. She is not compelled by law to assume her husband's surname as her legal name. Stuart, supra; State v. Green, 114 Ohio App. 497, 177 N. E. 2d 616 (Ct. App. 1961); Rice v. State, 37 Tex. Cr. R. 36, 38 S. W. 801 (Ct. Crim. App. 1897); Halligan, supra; 19 Halsbury’s Laws of England, Husband & Wife (3rd Ed. 1957), § 1350 at 829.

Otherwise, if the woman on marriage does not retain her maiden name, she legally adopts her husband's surname by repute, consistent with the common law right to adopt any name as her legal name without a court proceeding. Judicial opinions dealing with inadequacy of notice to a married woman in her maiden name are based generally on her assumption of her husband’s surname as her legal name. Chapman v. Phoenix National Bank, 85 N. Y. 437 (Ct. App. 1881); Claxton v. Simons, 177 N. E. 2d 511 (Ohio Ct. App. 1961), rev’d on other grounds, 174 Ohio St. 333, 189 N. E. 2d 62 (Sup. Ct. 1963); Kidd v. Rasmus, 285 S. W. 2d 415 (Tex. Ct. Civ. App. 1955); cf. Bacon v. Boston Elevated Ry. Co., 256 Mass. 30, 152 N. E. 35 (Sup. Jud. Ct. 1926).

In a number of other opinions married women who have assumed their husbands’ surnames have been denied voting or motor vehicle registration or other governmental permit in their maiden names, in view of the overriding concern for accurate identification of registrants or permit holders. Forbush v. Wallace, 341 F. Supp. 217 (M. D. Ala. 1971), aff'd 405 U. S. 970, 92 S. Ct. 1197, 31 L. Ed. 2d 246 (1972); In re Kayaloff, 9 F. Supp. 176 (S. D. N. Y; 1934); People v. Lipsky, 327 Ill. App. 63, 63 N. E. 2d 642 (D. App. Ct. 1945). A recent Connecticut opinion, however, recognizes the right of married women who never assumed their husband’s surnames to register to vote in their maiden names. Custer v. Bonadies, 30 Conn. Super. 385, 318 A. 2d 639 (Super. Ct. 1974).

The circumstance that an overwhelming majority of married women by custom and tradition assume their husband’s surname on marriage accounts for the various statutes in this State dealing with the wife’s marital name as her legal name. N. J. S. A. 2A:34-2; N. J. S. A. 2A:52-4; N. J. S. A. 19:31 — 13.

Succession of Kneipp, 172 La. 411, 134 So. 376 (Sup. Ct. 1931), decided under civil law, stands by itself in the United States in holding that a woman during marriage retains her maiden name as her legal name and uses her husband’s surname only by custom. That decision was questioned in Wilty v. Jefferson Parish Democratic Executive Com., 245 La. 145, 157 So. 2d 718 (Sup. Ct. 1963), and is without common law precedent in this State.

The right of a married woman having adopted her husband’s surname to resume her maiden name, absent fraudulent or criminal purpose, has been recognized in change-of-name proceedings in other jurisdictions, without exception in the reported opinions. Marshall v. State, supra; Hauptly, supra; Halligan, supra; Kruzel v. Podell, Wis., 226 N. W. 2d 458 (Sup. Ct. 1975).

Plaintiff adopted her husband’s surname Lawrence during the approximate five years between the marriage and her application for a change of name. Thus, the issue on appeal is whether the trial judge abused his discretion in refusing her leave to resume her maiden name Daniels. Halligan, supra, and Haupily, supra, concluded an abuse of judicial discretion in denying a married woman leave to resume her maiden name, without objection from her husband, once a determination of no fraudulent or criminal intent was reached. Halligan noted that confusion was no impediment, rather a normal concomitant of a name change. According to Hauptly, speculation that resumption of plaintiffs maiden name might cause embarrassment to her minor child was no basis for denying her application.

The trial judge’s concern here for possible harmful effect on children to be born is in conflict with the established constitutional right of parents to raise children as they choose, except for the bounds of the criminal law. Pierce v. Society of Sisters, 268 U. S. 510, 45 S. Ct. 571, 69 L. Ed. 1070 (1924); In re Goldfarb, 6 N. J. Super. 543 (Ch. Div. 1949). If the courts intervene a myriad of detriments and embarrassments to minor children may be conjectured.

We conclude that, in circumstances such as here where the husband consents to his wife’s resumption of her maiden name, the denial of plaintiffs application was without warrant under N. J. S. A. 2A:52-1 or common law and thus an abuse of the trial judge’s discretion. Hence we need not resolve the constitutional arguments pressed by plaintiff: denial of freedom of speech, the expression of her separate identity; denial of the right of privacy to manifest that separate identity; denial of equal protection of the laws to married women, a sex classification, when all others can change their legal names, absent fraudulent or criminal intent.

Reversed and remanded for entry' of judgment in accordance herewith.