author: Per Curiam.

text:
    MORRIS APRIL, MAX APRIL, EDWIN APRIL, LEON APRIL, d/b/a MORRIS APRIL BROTHERS, PLAINTIFFS-RESPONDENTS, v. COLLINGS LAKES AMBULANCE ASSOCIATION AND CLAIRE S. HALLIWELL, JOINTLY, SEVERALLY AND IN THE ALTERNATIVE, DEFENDANTS-APPELLANTS, v. MORGAN R. PIERCE, DEFENDANT TO COUNTERCLAIMANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued March 9, 1970
    Decided March 30, 1970.

      Before Judges Kilkenny, Labeeoque and Leonaed.

      Mr. Robert N. McAllister, Jr., argued the cause for defondants-appellants (Messrs. Miller, Brone, Valore & Mc-Allister, attorneys).

      Mr. David L. Horuvitz argued the cause for plaintiffs-respondents (Mr. Horuvitz and Mr. Philip L. Lipman, attorneys).
   Per Curiam.

Defendants Collings Lakes Ambulance Association and Claire S. Halliwell appeal from a judgment in favor of plaintiffs April, (1/b/a Morris April Brothers (April) following a jury trial, and from the denial of their motion for a new trial or for judgment n.o.v.

Plaintiffs sued for property damage to their tractor and trailer and other consequential damage resulting from a collision which occurred at the intersection of State Highway Eoute 54 and Jackson Eoad in Buena Vista Township, Atlantic County. On July 25, 1966, as the tractor-trailer was being driven north on Eoute 54 by April’s employee, Morgan E. Pierce, it collided with an ambulance owned by Collings Lakes Ambulance Association and driven by Claire S. Haliiwell. Jackson Eoad, on which the ambulance had been proceeding easterly, was a stop street. The ambulance had stopped and then started up, and was approximately three-quarters of the way across the intersection when it was struck on the rear part of the right side.

Eoute 54 was a two-lane concrete highway, each lane being nine feet wide. It had ten-foot shoulders of oil and stone composition. A white line marked the division between the concrete traveled portion and the shoulders. Jackson Eoad was approximately 30 feet wide and crossed at approximately a right angle. There were no traffic control devices except the stop signs on Jackson Eoad. The day was clear and the road dry.

At the time of the accident a third ear, a Hillman station wagon which had been proceeding two cars ahead of the tractor-trailer, had stopped with its left-turn signal on preparatory to turning left (west) into Jackson Eoad. At that time the ambulance was stopped on Jackson Eoad, its red light flashing and siren operating. Mrs. Haliiwell then started across and the collision occurred as the tractor-trailer pulled past the stopped station wagon on its right.

Pierce testified that just as he proceeded to go around the station wagon, the ambulance suddenly “shot across” in front of him, leaving him no alternative but to strike it. He had previously “spotted” the ambulance parked at the stop sign with its red light flashing, hut he did not hear a siren blowing. The driver of the ambulance testified that after stopping she made observations and saw no vehicle to her right except the stopped station wagon. She then proceeded to cross and did not observe the tractor-trailer until almost the instant she was struck.

Defendants argue that it was error to deny their motion for dismissal and for judgment in their favor; that the verdict was contrary to the weight of the evidence, and that there was error in the charge.

Our review of the record convinces us that, in the context of the proofs, the issues of negligence, contributory negligence and proximate cause were for the jury rather than the court. Fox v. Great Atlantic & Pacific Tea Co., 84 N. J. Law 726, 728 (E. & A. 1913); Pollack v. N. J. Bell Telephone Co., 116 N. J. Law 28 (Sup. Ct. 1935). It follows that the motions to dismiss and for judgment in favor of defendants were properly denied.

In support of their contention that the verdict was contrary to the weight of the evidence and should have been set aside defendants, in effect, argue that they were guilty of no negligence since the ambulance was being operated on official business with its siren and flasher operating, and hence was entitled to the right-of-way. N. J. S. A. 39:4-91. Not so. As was said in Finderne Engine Co. v. Morgan Trucking Co., 98 N. J. Super. 421 (App. Div. 1968):

[T]he exigencies of an emergency may require the operator of an emergency vehicle to take such risks as going through a red light, proceeding above fixed speed limits and driving on the wrong side of the road (but giving appropriate warnings), so that none of these maneuvers would be attended per se by the normal inference of negligent conduct. On the other hand, as well stated in City of Baltimore v. Fire Insurance Salvage Corps., 219 Md. 75, 148 A. 2d 444, 448 (Ct. App. 1959), emergency vehicles taking such risks “are bound to exercise reasonable precautions [not necessarily fulfilled by the statutory sirens and flashing lights alone] against the extraordinary dangers of the situation that the proper performance of their duties compels them to create.” [at 428]

See also Annotation, 84 A. L. R. 2d 121, 135, 142 (1962). Here the evidence was such as reasonably to support the finding, implicit in the jury’s verdict, that the operator of the ambulance was negligent in proceeding from a stopped position onto a busy state highway in the face of the approach of the truck. Accordingly, we may not disturb the trial judge’s denial of defendants’ motion for a new trial on that ground. Kulbacki v. Sobchinsky, 38 N. J. 435, 444-447, 452 (1962); Dolson v. Anastasia. 55 N. J. 2, 7-9 (1969).

We next proceed io consideration of defendants’ contention that the trial court erred in its denial of their request to charge the applicable provisions of N. J. S. A. 39:4-85. That statute provides:

The driver of a vehicle overtaking another vehicle proceeding in the same direction shall pass at a safe distance to the left thereof and shall not again drive to the right side of the roadway until safely clear of the overtaken vehicle. If vehicles on the roadway are moving in two or more substantially continuous lines, the provisions of this paragraph and section 39:4-87 of this Title shall not be considered as prohibiting the vehicles in one line overtaking and passing the vehicles in another line either upon the right or left, nor shall those provisions be construed to prohibit drivers overtaking and passing upon the right another vehicle which is making or about to make a left turn.
The driver of an overtaking motor vehicle not within a business or residence district shall give audible warning with his horn or other warning device before passing or attempting to pass a vehicle proceeding in the same direction.
The driver of a vehicle may overtake and pass another vehicle upon the right as provided in this section only under conditions permitting such movement in safety. In no event shall such movement be made by driving off the pavement or main-traveled portion of the roadway. [Emphasis added.]

The accident did not occur in a business or residence district.

The request was refused upon the asserted ground that the facts in this case did not involve an attempt to pass a vehicle proceeding in the same direction. Later, on the motion for a new trial, the trial judge noted that he had declined to charge the last paragraph on N. J. S. A. 39:4-85 because

I do not feel that this section, read as a whole, applies to the facts in this case. As I recall * * * the testimony was to the effect that the shoulder was hard-surfaced at this intersection; and the testimony was further to the effect that part of the truck was in the * * * main traveled portion of the highway and part on the shoulder. I think that the salient fact, gentlemen, was that when the driver attempted to avoid this accident he pulled way over to whore he went in order to try to get away from the oncoming ambulance.

Plaintiffs urge that the court below was correct in ruling that the portion of N. J. S. A. 39:4-85 requiring an audible warning before attempting to pass a vehicle proceeding in the same direction was not intended to apply where, as here, the motorist being overtaken is stopped preparatory to making a left turn. Ho authority for this contention is cited, and we know of none. The words of the statute are clear. We may not assume that by it the Legislature intended to afford less protection to a motorist stopped preparatory to making a left-hand turn who is being passed on the right than to one in motion being passed on the left. Actually, it would appear that the danger in the former situation exceeds that in the latter. In addition, passing a vehicle on the right at an intersection frequently, as here, involves the movement of other vehicles. We hold that a vehicle temporarily stopped on the highway does not lose its character as “a vehicle proceeding in the same direction” merely by the fact that it is not in motion. Butane Corporation v. Kirby, 66 Ariz. 272, 187 P. 2d 325 (Sup. Ct. 1947); Hutchinson v. Kinzley, 66 N. D. 25, 262 N. W. 351 (Sup. Ct. 1935); Weaks v. South Carolina State Highway Dept., 250 S. C. 535, 159 S. E. 2d 234 (Sup. Ct. 1968).

The statute prohibits driving off the pavement or main traveled portion of the roadway. To the extent here pertinent, “roadway” is “that portion of a highway, improved, designed, or ordinarily used for vehicular travel, exclusive of the berm or shoulder.” N. J. S. A. 39:1-1. The shoulder is defined as “that portion of the highway, exclusive of and bordering the roadway, designed for emergency use but not ordinarily to be used for vehicular travel.” Ibid. The berm is defined as “that portion of the highway exclusive of roadway and shoulder, bordering the shoulder but not to be used for vehicular traffic.” Ibid. The Legislature did not intend that the shoulder of the road he used for ordinary travel. Sharp v. Cresson, 63 N. J. Super. 215, 220 (App. Div. 1960); Hochberger v. G. R. Wood, 124 N. J. Law 518 (E. & A. 1940). Here, as noted, there was a line of demarcation separating the shoulders from the main traveled portion of the highway.

The fact that the shoulder was hard-surfaced afforded no ground for the refusal to charge the request. The last paragraph of N. J. S. A. 39:4-85 was enacted in its present form by L. 1951, c. 23. Prior thereto the last sentence had provided that: “No person shall operate a motor vehicle on the dirt, gravel or stone shoulder adjacent to the improved, paved portion of a highway when overtaking and passing a vehicle upon the right.” By the amendment of 1951 driving off the pavement onto the shoulder was prohibited regardless of the kind of shoulder.

Whether, as the court felt, Pierce drove off the pavement “in order to try to get away from the oncoming ambulance” was, at most, an issue of fact which could afford no justification for the refusal to charge the request. Additionally, our examination of the record reveals no factual basis for a finding to that effect. The testimony placed the stopped station wagon to the right of the center line which divided the two nine-foot concrete lanes constituting the main traveled portion of the highway so that, of necessity, the tractor-trailer had to he driven onto the shoulder in order to pass it. Further, the truck driver himself testified:

I let up off the fuel and proceeded to the right of the vehicle to go around when I spotted the ambulance parked at the stop sign. Just as I proceeded to go around the vehicle, the parked vehicle, the ambulance suddenly shot across, and I had no chance or no alternative except to hit it. [Emphasis added]

And further:

Q Now, to go around the parked car how did you make that movement, can you explain that to us? A I pulled partially on the shoulder.

And

Q Well, explain, Mr. Pierce, what you mean by partially on the shoulder. A My left wheels on the whole rig was still on the highway, half on the highway.
Q And your right wheels were on the shoulder, sir. Is that what you mean? A Yes, sir.
Q And you did this in order to pass this white ear with the turn signals on. Is that correct? A Yes, sir. [Emphasis added]

And in summation Ms counsel described what happened as:

[H]e doesn’t have to stop and wait, otherwise you would jam traffic — and he has a right to pass on the side. He saw the ambulance but the ambulance was standing still and he had a right to assume that the ambulance would stand still. He pulled to the right and suddenly this lady shot out.

In the context of the issues presented and the facts bearing thereon we are satisfied that the request should have been charged. The statute contains an exception to the general rule that an overtaking vehicle shall pass to the left of the vehicle being overtaken. The Legislature in its wisdom has prescribed the conditions under which a motorist may pass to the right of a vehicle which is about to make a left-hand turn. Thus a driver intending such a movement may do so “only under conditions permitting such movement in safety” and “in no event” may he do so cchj driving off the pavement or main traveled portion of the Mghway.” Since plaintiffs’ driver, in operating his loaded tractor-trailer through the intersection, had elected not to stop but to pass the stopped, station wagon on the right, defendants were entitled to have the jury instructed as to the standard of conduct set up by the Legislature for drivers engaging in such a maneuver. The jury was entitled to consider any violation of the statutory standard, together with all other evidence in the case, as bearing on the issue of Pierce’s asserted contributory negligence. Phillips v. Scrimente, 66 N. J. Super. 157, 162-164 (App. Div. 1961). It was as relevant and applicable as were the statutes referable to stop streets, N. J. S. A. 39:4-144, and emergency vehicles, N. J. S. A. 39:4-91, which the court did charge.

Plaintiffs urge that defendants suffered no prejudice since, upon consideration of the charge as a whole, the jury was adequately instructed as to the law applicable, citing Stackenwalt v. Washburn, 42 N. J. 15 (1964), and Ellis v. Caprice, 96 N. J. Super. 539 (App. Div. 1967), certif. den. 50 N. J. 409 (1967). Not so. The portion of the charge directed to the issue of contributory negligence, while it correctly defined contributory negligence in the abstract, failed to relate that definition to the manner in which the tractor trailer was being driven as it came up to the intersection. Although the jury was correctly instructed that the Legislature had set up the stop street act, N. J. S. A. 39:4-144, as a standard of conduct to be applied to the driver of the ambulance, it was left in the dark as to the legislatively prescribed standards applicable to the conduct of the driver of the tractor trailer. The need for such a charge is emphasized by the assurance given the jury by plaintiffs’ counsel in summation that “he [Pierce] doesn’t have to stop and wait, otherwise you would jam traffic—and he has the right to pass on the [right] side.” (Emphasis added.)

That defendants were prejudiced by the omission to so charge can hardly be denied. It bore upon a sensitive and decisive issue in the case. The driver of the ambulance conceded that she had failed to detect the approach of the tractor trailer until almost the moment of impact. Had the driver of the latter sounded his horn before attempting to pass the station wagon the jury could have found that she would have heard it before starting up and would have remained standing until the danger had passed. Pierce testified that he first observed the stopped station wagon when he was 250 feet behind it; that he was then going 45 to 50 miles an hour, and that he had air brakes and had plenty of time to stop before reaching the station wagon. The jury could well have determined that had he followed the mandate of the statute and remained on the traveled portion of the highway, controlling or stopping his rig until the way ahead was clear, there would have been no accident.

We are convinced that the omission to charge as requested amounted to a manifest denial of justice which mandates a reversal.

The .judgment of the Law Division is accordingly reversed and the case remanded for a new trial as to all issues.


source: Caselaw Access Project

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

license: Public Domain

text:
    JOANNE BENEDICT AND RICHARD BENEDICT. HER HUSBAND, PLAINTIFFS-RESPONDENTS, v. THOMAS PODWATS AND JOYCE PODWATS, HIS WIFE, DEFENDANTS-APPELLANTS.
    Superior Court of New Jersey Appellate Division
    Argued March 16, 1970
    Decided March 31, 1970.

      Before Judges Kilkenny, Labkecque and Leonard.

      Mr. Bartholomew A. Longo argued the cause for appellants (Messrs. Haskins, Robottom & Hack, attorneys).

      Mr. Karl R. Meyerions argued the cause for respondents.
   The opinion of the court was delivered by

Kilkenny, P. J. A. D.

This personal injury negligence action was tried before a jury and resulted in a verdict in favor of plaintiff Joanne Benedict in the amount of $21,000 and in favor of her co-plaintiff husband Richard Benedict in the amount of $1500 for loss of consortium. Defendants’ motion for a new trial was denied. Thereupon, defendants filed this appeal from the judgment based upon the verdict and from the order denying a now trial.

The facts are simple, clear and, for all practical purposes, undisputed.

On the morning of October 19, 1967 plaintiff Joanne Benedict drove to the home of her sister, defendant Joyce Podwats, to do at her request a floral arrangement in a room divider. Joanne had the day before purchased the flowers for the arrangement, for which she was paid by her sister Joyce. Plaintiff let herself into Joyce’s home •— not finding Joyce there at the time — with a spare key picked up at the home of their mother who lived nearby.

While at defendants’ home Joanne “straightened up,” did some dusting, put out some laundry her sister had done, and then got ready to do the floral arrangement. She had done such arrangements for her sister on prior occasions. After hanging out the laundry, she returned to the house and continued arranging the flowers.

A short time later Joanne’s mother stopped by the house and told her that it looked like rain. After her mother left, she decided that she would take the sheets off the line because it was getting quite windy. As plaintiff was walking toward the back yard, she fell at or near the edge of the patio and landed on her back on the sidewalk at the bottom of the stops, sustaining the injuries for which she and her husband were awarded damages by the jury, as noted above.

Joanne’s legal status at the time of her injuries on defendants’ premises was a crucial question at the trial. She had come to her sister’s home at the latter’s asking to make up the floral arrangement. She had bought the flowers for that purpose. Plaintiff testified that her sister had also asked her to “do anything I’d see to be done.” So, she went to the basement, brought up a basket of laundry and hung out the laundry on the wash line near the patio. She cleaned around the house, made the floral arrangement and had her accident while going down the brick steps to reach the clothes line and bring in the clothes. The patio, of course, led out to the back yard. In all, she was at her sister’s home doing these chores for about two hours, from about 11:30 a.ii. to about 1:30 p.m. The jury could properly find, as it evidently did, that plaintiff’s fall was caused by a defective condition in and about the patio and brick steps.

The trial judge instructed the jury that the injured plaintiff was “an invitee,” and explained the duty of an owner of property to invitees. He noted that the property owner must exercise reasonable care to have the premises in a safe condition, and the duty to the invitee includes a duty to make a reasonable inspection to discover defective conditions. Further, the jury was told that this duty of care was owed by defendant to plaintiff Mrs. Benedict and, to recover, the jury must find that there was a violation of that duty of care and that the violation was the cause of this accident and of the injury Mrs. Benedict sustained. The trial judge denied defendants’ request to instruct the jury as to the “social guest” rule.

Defense counsel objected to that part of the charge whereby the jury was told “the plaintiff was an invitee.” On appeal defendants urge two grounds for a reversal. First, they argue that the trial court erred in denying their motion for a judgment in their favor at the end of plaintiffs’ case. It is their position that (a) Joanne, sister of Joyce, was a social guest or gratuitous licensee on defendants’ premises at the time she fell, and (b) under our law, defendants did not breach their duty to Joanne to warn her of known dangerous conditions on the premises. Secondly, defendants maintain that the trial court erred in failing to instruct the jury as to the permissibility of a finding that Joanne was either a licensee or invitee at the time of her alleged fall and thus entitled to the standard of care commensurate with her status.

It is true that “the duty owed by an occupier of land to third persons coming thereon is determined according to the status oí such third person, i. e., invitee, licensee or trespasser. Indeed, the ascertainment of that status is an essential preliminary to the application of the standard of care to be exercised by the land occupier. [Cases cited].” Snyder v. I. Jay Realty Co., 30 N. J. 303, 311 (1959).

A “social guest” has been defined as a gratuitous licensee in that while he is on the premises of another as a result of an “invitation” in the laymen’s sense of the word, ho is not an “invitee” within the legal meaning of the term. The social guest enjoys the hospitality of the host and expects that the host will take the same care of him as he does of himself and his family. However, the host must warn a social guest of risks of harm or dangerous conditions of which the host has knowledge and the guest is unaware. Berger v. Shapiro, 30 N. J. 89, 97-98 (1959); Restatement of Torts 2d (1965), § 342.

On the other hand, the duty of care owed by an occupier of land to his “invitee,” legally understood, as the trial court properly charged, “is to use reasonable care to make the premises safe, and this includes the duty to make a reasonable inspection to discover defective conditions.” Handleman v. Cox, 39 N. J. 95, 111 (1963).

It has been said that a person who is on the homeowner’s premises to confer some benefit upon the invitor is regarded as an invitee and is owed a greater duty of care than a licensee. Berger v. Shapiro, supra, 30 N. J., at 96. “The Restatement of Torts, § 331, defines a social guest as a gratuitous licensee.” Ibid.

In Pearlstein v. Leeds, 52 N. J. Super. 450 (App. Div. 1958), plaintiff was injured as the result of a fail on a waxed stairway in defendants’ home. She had assisted defendant in preparations as well as being one of the party guests. We held that plaintiff was a “social guest” and “remains such despite the performance of services beneficial to the host in the course of the visit.” (At 458). Thus, a house guest invited for some social purpose does not change her legal status to that of an invitee merely because she helps in the party preparations or helps to wash the dishes as a favor to the hostess at the close of the festivities.

In the instant case, however, the injured sister was not invited for the purpose of engaging in some social gathering, but solely to perform chores for her homeowner sister, thereby conferring a benefit upon the invitor. True, she received and expected no compensation for her labors — only reimbursement for the flowers purchased for the iloral arrangement — and, presumably, her work efforts constituted a labor of love, born of the affection of one sister for another.

The questions are: (1) Did the trial court have the right .to determine Joanne’s legal status as that of an invitee, without submitting that issue for resolution by the jury? (2) Assuming the trial court had the right to determine her legal status, was its decision legally correct?

We answer the first question in the affirmative. The facts were not in dispute, so that there was no need for jury intervention to determine factual issues. In fact, defendants in their motion for judgment requested the trial court to decide as a matter of law that plaintiff was a “social invitee.” Upon the undisputed facts, her legal status was properly a question of law to be determined by the trial judge. Certainly, he was better qualified than the jury to determine the legal conclusion to be drawn from the uncontradicted facts.

As to the second question of whether plaintiff was ari “invitee” or “social guest,” as those terms are legally understood, we conclude that, under the totality of the circumstances herein, the trial court correctly decided that the injured plaintiff was an “invitee.” She had been invited to come to her sister’s home to perform services for her sister. While performing the requested work, she sustained her injuries by reason of a defective condition on her sister’s premises. The jury’s verdict indicates a finding of negligence on the part of defendants and no contributory negligence on the part of the injured plaintiff. The quantum of damages awarded by the jury has not been challenged. Even if it had been, the seriousness of plaintiff’s injuries would have justified it.

To hold that the visit of one sister to the home of another sister solely to work there, during the absence from the home of the invitor-sister, makes the visitor a “social guest,” would enlarge the meaning of the word “social” beyond its normal connotation.

In 65 C. J. S. Negligence § 63 (112), at 866, the general rule is stated as follows:

A person who enters premises or a portion thereof to perform work for the owner or occupant occupies the status of an invitee, to whom a duty of reasonable care is owed * * * even though such work is performed gratuitously.

The fact that the services are performed gratuitously does not negate the status of the person doing them as an invitee. Id., at 870. In support thereof, see Cozine v. Shuff, 378 S. W. 2d 635 (Ct. App. Ky. 1964), where the injured plaintiff came to her sick sister’s home to help her do her housework and slipped on lard negligently spilled by defendant oil a linoleum floor. She was held to be an invitee and entitled to recover. So, too, in the case of a person who came to his friend’s home to help him install a fan the same conclusion as to being an “invitee” was reached, although there was a failure of proof of negligence. Shepherd v. Whigham, 220 Ga. 684, 141 S. E. 2d 583 (Ct. App. 1965). For a contrary view, see Mitchell v. Legarsky, 95 N. H. 214, 60 A. 2d 136 (Sup Ct. 1948), in which a plaintiff, who had been invited to come to the home of her sister-in-law and do some sewing there, caught her too in a torn piece of linoleum and fell down a flight of steps; it was held that she was a gratuitous licensee or bare licensee, with only a limited duty of care. We subscribe to the conclusion reached in Cozine, supra, rather than that in Mitchell, supra.

Finding no merit in any of the grounds relied upon for a reversal, the judgment is affirmed.


author: Polow, J. J. D. R. C.

text:
    FRANCES W. SHARPE, PLAINTIFF, v. LOUIS H. SHARPE, DEFENDANT.
    Superior Court of New Jersey Chancery Division
    Decided March 17, 1970.

      Mr. 8aul J. Zucker, for plaintiff (Messrs. Zucker, Lowenstein, Gurny <& Zucker, attorneys).

      Mr. Joel L. Bohrer, for defendant.
   Polow, J. J. D. R. C.

(temporarily assigned). On this application plaintiff seeks an order reviving her right to alimony which had been discontinued upon defendant’s motion to eliminate support for her “by reason of plaintiff’s remarriage.” Plaintiff claims her right to alimony is restored by the annulment of her second marriage.

The sequence of events is important to a fair evaluation of the issues. Plaintiff and defendant were married May 1, 1954, and thereafter resided together until January 18, 1965. Four children were born while they lived together and a fifth child of the marriage was born on August 12, 1965 after they had separated. The wife’s original action against defendant Sharpe charged extreme cruelty and sought separate maintenance. The complaint was amended before trial to demand an absolute divorce. At the trial on September 29, 1966 defendant withdrew his answer, a divorce was granted and the court approved the terms of an agreement of the parties for custody, support, alimony and a property settlement.

The judgment nisi of October 26, 1966 required defendant to pay $10,000 a year in monthly installments “as and for alimony, support and maintenance for the wife and infant children of the marriage in her custody * * * until the death of either party, or her remarriage * * The judgment became final on January 27, 1967 and payments were made under the terms thereof until 1969.

On January 9, 1969 plaintiff participated in a ceremonial marriage to Alan Cavallaro. Within 12 days after that marriage ceremony defendant Sharpe applied for a reduction in support by elimination of alimony. His motion resulted in the May 29, 1969 order which reduced the original $10,000 annual support obligation to $6,000 per annum, retroactive to February 1, 1969. The new award was designated as support for the children only.

During the pendency of defendant’s application to reduce the support payments, plaintiff had filed a complaint for annulment against Cavallaro, alleging his impotence as the basis for relief. That complaint was voluntarily dismissed by plaintiff on April 29, 1969 prior to the entry of the order which eliminated alimony. Thereafter, another complaint for annulment was filed by plaintiff against Cavallaro on June 25, 1969 seeking a permanent injunction to prevent Cavallaro from seeing plaintiff’s children of her first marriage or ingratiating himself with them and “from taking any steps to enforce his purported right to custody of said children as step-father.” The complaint was amended on August 12, 1969 to demand an annulment of the Cavallaro marriage on the ground of his alleged impotence. Cavallaro did not contest and a judgment was entered on November 14, 1969 declaring that he was incurably impotent at the time of the marriage, that he had misrepresented this fact to plaintiff, that she was ignorant of the true fact and had relied upon his representation, and that upon learning the true fact she had separated herself and did not ratify the marriage. That marriage was thereupon adjudged “from the beginning a nullity, and should and shall be determined in all courts of law and equity, and in all places to be null and void * *

On this application we must decide whether the previous obligation of defendant Sharpe to pajr alimony to his former wife, having been eliminated by order of this court following her ceremonial remarriage, was revived when the subsequent remarriage was declared a nullity.

I

Wife support at common law could be awarded only after a judgment of divorce a mensa et thoro, that is, after a limited or bed and board divorce equivalent to a judicial separation. The English ecclesiastical courts had provided support for wives living separate from their husbands under such decrees, courts of law having no power to act. There were no absolute divorces for most English wives until the middle of the last century except for those rich or powerful enough to obtain relief by an act of Parliament.

The rationale supporting alimony in limited or bed and board divorces was based at common law upon the husband’s status as compared to that of his wife in the days of the ecclesiastical courts. The husband, after marriage, took all of his wife’s personal property as well as income, rents and profits from her real estate. This naturally carried with it an obligation to support which would traditionally be provided in the family home. When the court authorized the wife to separate and live apart from her husband because of his cruelty or adultery it was logical to require him to provide for her support. After all, he still kept her personal property and her income.

Under the common law in New Jersey, as in England, there was no absolute divorce, but following the example of the ecclesiastical courts, alimony had been awarded as an incident to limited divorce. Marriages terminated for causes which rendered the relationship void ab iniiio did not give rise to a duty of support, there having been no marriage in the eyes of the law.

Statutory authority for alimony was included with the creation of the original right to absolute divorce in this State in December 1794. Lynde v. Lynde, 64 N. J. Eq. 736, 751, 58 L. R. A. 471 (E. & A. 1902). The Court of Chancery was given jurisdiction to award alimony to enforce “the continuing duty of support which the husband owed to the wife, and of which he was not permitted to absolve himself by his own misconduct, although that misconduct resulted in a dissolution of the marriage.” Originally, divorce was possible in New Jersey not only on grounds of adultery and extreme cruelty but also “on account of the parties being within the prohibited degrees.” The latter ground was eliminated in 1820, but permanent alimony was permitted again irrespective of the cause of divorce. Lynde v. Lynde, supra, at 752-753.

Except as may be created by statute, then, there was and is no right to alimony where a marriage is declared a nullity, since the duty to support after the termination of a marriage is strictly a legislative creation, there having been no absolute divorce at common law, and the statute itself having delineated the areas in which support may be granted. N. J. S. 2A:34-23 provides the authority to award alimony only “after judgment of divorce or maintenance.” The omission of such authority after judgment of nullity indicates a legislative intent that there be no power to grant alimony in the event of a void or annulled marriage. Wigder v. Wigder, 14 N. J. Misc. 880 (Ch. 1936). It is therefore evident that in this State plaintiff eonld not seek support from Cavallaro after her annulment decree,

although such a demand would have been quite appropriate had she obtained a judgment of divorce against her second husband.

Under common law, plaintiff would have had no personal assets or income. Her first husband would have taken control of her personal property and received her income. She would have had no rights at all against her second husband then—there having been no right to remarry at all. However, as the common law has been modified through the years, husbands have been stripped of their absolute control over the property of their wives. Absolute divorces have been authorized by law in every state, and married women now retain control over their own property. Nevertheless, the obligation of a husband to support has been extended in most jurisdictions to divorced wives. A husband is now liable not only for support in case of limited divorce or judicial separation where the marriage tie is kept intact but in most states he is also required to pay alimony after the dissolution of the marriage by absolute divorce, although some jurisdictions still retain the common law concept of alimony despite statutory authority for absolute divorce and declare the award of support after absolute divorce to be against public policy. See Rayfield v. Rayfield, 242 N. C. 691, 89 S. E. 2d 399 (Sup. Ct. 1955); McElreath v. McElreath, 162 Tex. 190, 345 S. W. 2d 722 (Sup. Ct. 1961); Hooks v. Hooks, 123 Pa. Super. 507, 187 A. 245 (Super. Ct. 1936).

Although our Legislature provided the power to award alimony after absolute divorce, the award itself remains a matter of judicial discretion. According to (Herr, Marriage, Divorce and Separation), 10 N. J. Practice Series, § 634, at 529, “the provisions of Section 2A:34-23 are permissive rather than mandatory, and the court will administer the remedies thereunder in such a manner as to prevent inequity and to show due regard for considerations of comity and expediency.” The viability of the award of alimony is emphasized by the last sentence of the statutory provision itself: “Orders so made may be revised and altered by the court from time to time as circumstances may require.” N. J. S. 2A:34-23.

II

N. J. S. 2A:34-25 contains the mandatory requirement that the court vacate all support for the wife upon application of the former husband if the former wife shall remarry. Defendant herein took advantage of that statute, made an application and was relieved of the payment of alimony by this court after plaintiff’s remarriage in 1969. Now, plaintiff insists upon her right to have alimony revived and, in fact, argues that it should operate retrospectively, demanding that defendant pay back alimony for the entire period during which he had been relieved by court order. She relies on Wigder v. Wigder, supra, for the proposition that the court has no power to award alimony against Cavallaro; she relies on Minder v. Minder, 83 N. J. Super. 159 (Ch. Div. 1964) for the claim that her alimony should be revived. Minder held that the obligation to pay alimony was not terminated by a subsequent ceremonial marriage of the former wife which was void because of her insanity and consequent lack of capacity to contract a valid marriage. After discussing the basic distinction between void and voidable marriages, a distinction which “is firmly rooted both in the common law and in the law of New Jersey,” the court determined that the second marriage had been absolutely void. Hnder such circumstances, where there is a lack of capacity to consent or idiocy or a prior existing marriage, the incapacitated party is not capable of contracting the marriage and the relationship is meretricious. In fact, no judgment of nullity is necessary in those eases, the marriage being absolutely void ab initio. Steelman v. Snow, 94 N. J. Eq. 9 (Ch. 1922); Minder v. Minder, supra. 83 N. J. Super., at 164.

The present situation is quite different. The marriage with Cavallaro could have been ratified by plaintiff upon her discovery of the impotence of her partner. Therefore, it is quite clear that the marriage was voidable and not absolutely void. Grobart v. Grobart, 107 N. J. Eq. 446 (Ch. 1931), aff’d 109 N. J. Eq. 129 (E. & A. 1931); Godfrey v. Shatwell, 38 N. J. Super. 501 (Ch. Div. 1955).

Ill

There is no reported authority in New Jersey on the right to revival of alimony where a voidable second marriage has been annulled. Other jurisdictions have taken varied approaches to the problem. A brief discussion of three basic views in other states is appropriate here.

Although New York now has a statute authorizing an alimony award after a judgment of annulment, N. Y. Domestic Relations Law, McKinney’s Consol. Laws, c. 14, § 236, it is fairly recent. An interesting trend was discernible prior to its enactment in 1954 (as § 1140-a of the Civil Practice Act). Justice (then Judge) Cardozo wrote an opinion in 1928 in a case which revived the obligation contained in a separation agreement providing for alimony to “continue as long as the wife remains' unmarried.” The parties were later divorced, the former wife remarried and the former husband discontinued alimony payments for three years. The second marriage was annulled because of the fraud of the second husband under circumstances characterized by the court as rendering the remarriage “voidable.” The former wife was declared “unmarried” under the terms of the separation agreement and therefore the first husband was required to renew support payments. However, he was not held liable for support while the former wife remained married to her second husband because she would have then been unjustly enriched. “During all the years that [the second marriage] continued, or at least till action was begun, the second husband was chargeable with a duty of suitable support.” Sleicher v. Sleicher, 251 N. Y. 366, 167 N. E. 501, 503 (Ct. App. 1929).

At the time of the Sleicher decision, New York had no statutory provision for alimony after annulment, as it presently provides. Thus, one of the arguments supporting that decision was that she would receive no support at all if not entitled to support from her first husband. An interesting New York decision since the creation of the statutory authority for alimony after annulment suggests that the Court of Appeals no longer follows the rationale of Sleicher. In Gaines v. Jacobsen, 308 N. Y. 218, 124 N. E. 2d 290 (Ct. App. 1954), the second husband had died before the decision on appeal but after the annulment had been granted. In reviewing plaintifPs argument for support from her first husband, the court held that her remarriage was an election and an abandonment of any right to support from husband number one. After her remarriage, her first husband had the right to “regard himself as free of the duty to support her. He could then assume new obligations—he could himself remarry, if he were of a mind to, but his means limited— without remaining forever subject to the possibility that his first wife’s remarriage would be annulled and the burden of supporting her shifted back to him. (At 293-294)

As a practical matter, Gaines, arrived at precisely the result that Sleicher sought to avoid—the wife remained without any source of support whatever. This did not alter the conviction of the appellate court that by her remarriage the former wife had made a choice by which she was bound, “although subsequent events prove it to have been an improvident one.”

The Supreme Court of California faced the same issue as Sleicher with the opposite result in 1955. Sefton v. Sefton, 45 Cal. 2d 872, 291 P. 2d 439 (Sup. Ct. 1955), held that the right to alimony was not revived by annulment of the second marriage:

* * * By the celebration of marriage she held herself out as having remarried. The defendant was entitled to rely upon her apparent marital status after the ceremony. If Mrs. Sefton’s new marriage was subject to annulment for fraud as provided for in subdivision four of section 82 of the Civil Code, or for the incapacity of her new husband to enter upon the marriage state as provided for in subdivision six, or for any reason stated in subdivisions one, three and five of that section, the marriage would be voidable only. Kedress by way of annulment might never be sought by the offended party and the marital status might thus continue indefinitely. The causes for annulment thus provided for by statute are ordinarily known to or concern only the individual contracting parties. The divorced spouse, the defendant here, may never know of the circumstances which make his former wife’s new marriage voidable. Certainly knowledge of such voidability may not be imputed to him. After the ceremony took place he could properly assume, in accordance with section 139 and the property settlement agreement, that his obligation to pay alimony had ceased. He was then entitled to recommit his assets previously chargeable to alimony to other purposes. Under such circumstances it would be improper to reinstate his alimony obligation. AVhile it is true that both the plaintiff and defendant may be deemed to be innocent parties, it accords with the policy of the law to look less favorably upon the more active of two innocent parties when by reason of such activity a loss is sustained as the result of the misconduct of a stranger. Here it is clear that Mrs. Sefton was the active party who brought herself and the defendant into their present situation. Accordingly, it is she who should asume the responsibility for it. [291 P. 2d, at 441-442.]

The California statute terminating the alimony obligation is self-operating “upon the remarriage of the other party.” Although our statute requires an application by the former husband, the right to terminate alimony is just as •absolute in this State. The significance of Sefton is its holding that a voidable marriage, although later annulled, is nevertheless a “remarriage”, under the statute. Subsequently, an appellate decision in California applied the same reasoning to a void second marriage: “We find no persuasive reason for distinguishing between the effects upon alimony of o void and a voidable remarriage. Either constitutes a remarriage under section 139 of the Civil Code; either terminates the alimony rights of the remarried spouse.” Berkely v. Berkely, 269 Cal. App. 2d 872, 75 Cal. Rptr. 294 (Ct. App. 1969).

The Supreme Court of Colorado arrived at the same conclusion on the grounds of public policy, without regard to whether the remarriage annulled had been void or voidable. Torgan v. Torgan, 159 Colo. 93, 410 P. 2d 167 (Sup. Ct. 1966). In Mississippi, the Supreme Court adopted the same rule in a ease of novel impression in that state where the annulled second marriage had been voidable even though there is no Mississippi statute relieving the former husband of alimony payments upon the remarriage of the other party. The decision of that court was based upon the voluntary action of the wife in entering into a second marriage, an election which relinquishes her right to support from the former husband. Bridges v. Bridges, Miss., 217 So. 2d 281 (Sup. Ct. 1968). Louisiana treats the remarriage as a termination of the right to alimony which is not revived by annulment whether the remarriage is void or voidable. Keeney v. Keeney, 211 La. 585, 30 So. 2d 549 (Sup. Ct. 1947). Florida has refused to revive the right to alimony where the annulled second marriage was voidable. Evans v. Evans, 212 So. 2d 107 (Fla. Ct. App. 1968).

Massachusetts considered both the New York and California lines of cases and rejected both theories:

We are of opinion that under our statutes the circumstances of a later marriage and its annulment must be examined in each instance to determine whether they constitute a significant change in circumstances occurring after the original decree. There should be no hard and fast rule one way or the other. The relation-back principle effacing the marriage may in many cases result in there being no such significant change in circumstances as would justify modification. But cases can readily be imagined where it would be unrealistic as well as unjust to hold that the annulled remarriage did not constitute a significant change of circumstances. Such a case, for example, would be one where there had been a change of position by the husband in reliance on the later marriage. There are doubtless others; we make no attempt to list them. The question is whether there has been a real, as distinct from an apparent, change of circumstances. [Robbins v. Robbins, 343 Mass. 247, 178 N. E. 2d 281, 284 (Sup. Jud. Ct. 1961)].

The Massachusetts court, having found no change of circumstances, ordered the alimony obligation of the former husband continued. The Massachusetts view, that the change of circumstances rationale be applied to determine whether the alimony obligation terminates, is shared by the Supreme Court of Utah. Cecil v. Cecil, 11 Utah 2d 155, 356 P. 2d 279 (Sup. Ct. 1960).

The substantial weight of authority favors permanent termination of the obligation to pay alimony upon the remarriage of the wife, and the permanency of the termination is not affected by annulment of her second marriage. The weight of authority is even greater where the annulled remarriage is voidable rather than void.

IY

Defendant argues that he changed his circumstances upon learning of plaintiff’s remarriage in that he incurred additional expenses with the knowledge that he no longer would be required to pay alimony. In fact, he sought and he obtained an order reducing support by elimination of alimony. However, we must recognize the reality that there is no certainty for either party where alimony is concerned. Modifications based upon changing circumstances are common and take place even where the parties have formalized their arrangements by written agreement.

On the other hand, plaintiff’s remarriage was a voluntary act, knowingly performed, and constituted an election by her to substitute the obligation of her second husband to support her in place of alimony from her first husband. The marriage was valid until the judgment of annulment was entered, despite the insistence of plaintiff that the judgment of nullity relates back to the time of the marriage. Certainly, the second husband had an obligation to support her during the duration of the second marriage and plaintiff could have applied to the court for support from him during the pendency of her annulment proceedings, which she chose not to do.

The second marriage could have been ratified by plaintiff after she obtained knowledge of the fraud, but she elected to proceed with the annulment action knowing that if successful she would terminate any obligation for support by her second husband, and his failure to contest the annulment suit gave him some confidence that his obligation would terminate. Her voluntary decision to enter into the ceremonial second marriage and the further decision on her part not to ratify that marriage was an election which relinquished her right to support from defendant.

Upon plaintiff’s remarriage, which was valid until annulled, defendant had the right to regard himself as free of the duty to support his former wife, to assume new obligations and to rely upon his new status without remaining forever subject to the possibility that the obligation to pay alimony might be revived in the event of an annulment proceeding which was completely within the power of plaintiff to pursue or not as she might see fit.

Plaintiff’s application for an order restoring her right to alimony is therefore denied.

      There is authority for pendents lite support for a wife even during annulment proceedings. N. J. S. 2A:34-23; Barnes v. Barnes, 138 N. J. Eq. 504 (E. & A. 1946). Plaintiff, however, made no such application against Cavallaro.


author: Herbert, J. S. C.

text:
    NEW JERSEY HIGHWAY AUTHORITY, A BODY CORPORATE AND POLITIC CREATED AND EXISTING UNDER AND BY VIRTUE OF CHAPTER 16 OF THE LAWS OF 1952, AS AMENDED AND SUPPLEMENTED ; FIDELITY UNION TRUST COMPANY, A BANKING CORPORATION OF THE STATE OF NEW JERSEY, AS TRUSTEE UNDER THE GENERAL BOND RESOLUTION OF THE NEW JERSEY HIGHWAY AUTHORITY ADOPTED JULY 8, 1953, AS SUPPLEMENTED ; AND FIRST NATIONAL STATE BANK OF NEW JERSEY, A NATIONAL BANKING ASSOCIATION, AS TRUSTEE UNDER THE JUNIOR BOND RESOLUTION OF THE NEW JERSEY HIGHWAY AUTHORITY ADOPTED JULY 7, 1962, AS SUPPLEMENTED, PLAINTIFFS, v. ARTHUR J. SILLS, ATTORNEY GENERAL OF THE STATE OF NEW JERSEY, DEFENDANT.
    Superior Court of New Jersey Chancery Division
    Decided March 25, 1970.

      Mr. Theodore W. Geiser for plaintiff New Jersey Highway Authority (Messrs. Pindar, McElroy, Connell, Foley & Geiser, attorneys).

      Mr. Dickinson B. Debevoise for plaintiff Fidelity Union Trust Company, trustee (Messrs. Biker, Danzig, Scherer & Brown, attorneys).

      Mr. John J. McDonough for plaintiff First National State Bank of New Jersey, trustee (Messrs. Darby & McDonough, attorneys).

      Mr. Philip 8. Carchman, Deputy Attorney General, for defendant.
   Herbert, J. S. C.

This action was brought for a declaratory judgment that chapters 352 and 414 of the Laws of 1968 are unconstitutional, and for ancillary injunctive relief against their operation and enforcement. The amended complaint also contains demands for a judgment declaring .that any legislation which purports to exempt classes of vehicles and persons from paying tolls on the Garden State Parkway will be unconstitutional so long as bonds heretofore issued are outstanding, and there is a demand for such other relief as the interests of justice may require. The caption names and, to some extent, describes the plaintiffs. The sole defendant is Arthur J. Sills, the Attorney General of the State of New Jersey.

Chapter 352 of the Laws of 1968 exempts properly identified members of the New Jersey National Guard from the payment of tolls on any toll road, bridge or ferry within the State used by them while going to, or returning from, any required parade, encampment, drill, meeting or active duty for training. Chapter 414 does the same thing for properly identified members of a reserve component of the armed forces of the United States. Both were passed over vetoes by the Governor. In each case, the Governor’s veto message cited the unconstitutionality of the statute as the basis for his action.

Plaintiffs charge that chapters 352 and 414 are unconstitutional in that they impair the obligation of contracts, abridge the privileges or immunities of citizens of the United States, deprive persons of liberty or property without due process of law, interfere with the natural and inalienable right of acquiring, possessing and protecting property, and violate the guarantee of equal protection. Plaintiffs have moved for summary judgment on the basis of these claims.

Affidavits and documents filed by plaintiffs show that the New Jersey Highway Authority currently has outstanding bonds in the total approximate amount of $327,000,000. They were issued pursuant to resolutions authorized by statute (N. J. S. A. 27:12B-8) and adopted by the Authority. The Garden State Parkway, which is a toll road throughout most of its length, was paid for in largo part by using the proceeds of sale of the bonds. Tolls charged to users of the Parkway are the primary source of funds to pay the bonds, both principal and interest.

Section 9 of the New Jersey Highway Authority Act specifies the provisions which the Authority may include in any bond resolution and provides that such a resolution shall constitute a contract with the bondholders. Among the provisions which may be included are covenants as to rates of tolls and other charges to be established.

Pursuant to section 9 of the act, the Authority’s general bond resolution of July 8, 1953 and its junior bond resolution of July 7, 1962 contain covenants as to the rates of tolls and other charges. For example, in the general resolution (1) section 501 pledges the tolls and other revenues of the Authority for the benefit of the bonds issued pursuant to the resolution; (2) various sections establish funds into which the revenues of the Authority are to be paid; (3) section 707 contains a covenant that the Authority has the right and power to fix, charge and collect tolls and other charges for use of the Garden State Parkway, and (4) section 711 requires the Authority to exercise its powers to fix, charge and collect tolls so that revenues in each year will meet certain specified requirements.

In addition to the provisions of the general resolution and the junior bond resolution, the act itself constitutes a contract with, and pledge to, the bondholders. Sections to be mentioned here include (1) section 5(i) of the act which gives the Authority the power to fix and revise and collect tolls, (2) section 5(j) which gives the Authority the power to establish rules and regulations for the use of the Garden State Parkway; (3) section 9 (referred to above) which specifies that such a resolution shall constitute a contract with the bondholders and that among the provisions which may be included are covenants as to rates of toll and other charges to be established; (4) section 14 which specifies that the Authority is authorized to fix, revise, charge and collect tolls and charges; that such tolls and charges shall be so fixed and adjusted as to carry out and perform the terms and provisions of any contract for the benefit of bondholders, and that such tolls and charges shall not be subject to supervision or regulation by any agency of the State, (5) section 18(a) which provides that no vehicle shall be permitted to make use of the Garden State Parkway except upon payment of such tolls as may be prescribed by the Authority, and (6) section 20 which requires the Authority to permit the largest toll-free use of the Parkway consistent with its obligations to the bondholders and consistent with safe and economical construction and operation of the project on a self-supporting basis.

Considering the provisions of the New Jersey Highway Authority Act and those of the two bond resolutions of the Authority, I think that chapters 352 and 414 of the Laws of 1968 are both unconstitutional impairments of the existing contracts between the Authority and its bondholders. The Attorney General, in his answer to the amended complaint, concedes that these statutes are unconstitutional. An affidavit filed by Philip S. Carchman, the Deputy Attorney General entrusted with the handling of this case, states that in view of its opinion that the statutes in question are unconstitutional, “the Office of the Attorney General cannot defend” this action. Thus, there is no one before the court arguing for constitutionality ■— a condition that puts an obstacle in the path to the declaratory judgment all plaintiffs demand.

In New Jersey Turnpike Authority v. Parsons, 3 N. J. 235 (1949), where the constitutionality of the New Jersey Turnpike Authority Act was ruled upon, the Supreme Court spoke of the availability of declaratory judgments as follows:

The remedy thus provided, however, is circumscribed by the salutary qualification that the jurisdiction of the courts may not be invoked in the absence of an actual controversy. “Not only must the plaintiff prove his tangible interest in obtaining a judgment, but the action must be adversary in character, that is, there must he a controversy between the plaintiff and a defendant, subject to the court's jurisdiction, having an interest in opposing his claim.” Borchard, Declaratory Judgments (2d ed. 1941), p. 29; cf. New Jersey Bankers Ass’n v. Van Riper, 1 N. J. 193 (1948). We use the phrase “salutary qualification” because of the understandable policy of the courts to refrain from rendering advisory opinions, from deciding moot cases, or generally from functioning in the abstract, and “to decide only concrete contested issues conclusively affecting adversary parties in interest,” Borchard, pp. 34-35.
* * * * # Í.- #
The first point to be considered in any proceeding for a declaratory judgment is whether or not the controversy that is presented in the briefs and at the oral argument is actual and bona fide or is merely one in which “the semblance of judicial proceedings and the form of due process are present,” New Jersey Bankers Ass’n v. Van Riper, 1 N. J. 193, 198 (1948). [at 240-241]

The principles thus stated make it difficult to avoid a dismissal of the present case, or at least a stay until a contesting defendant can be joined. However, either dismissal or stay would be an unsatisfactory result in this case. Plaintiffs are faced with an actual situation in which they must do their respective duties. Though a question of constitutionality, by its very nature, suggests a certain importance, this one has so little practical significance to those purportedly benefited that the likelihood of finding anyone to take on the trouble and expense of defending actively the constitutionality of the statutes in question is very slight, if not nonexistent. Thus, there are forceful reasons for finding a way to go forward and reach a decision on the merits. I conclude that can be done, even though the importance of getting a true adversary — where one can be found — into a case of this type must be conceded.

Plaintiffs Fidelity Union Trust Company and First National State Bank of New Jersey join in this action as trustees for bondholders. It is their duty to enforce against the Highway Authority the provisions of the Authority’s contracts with its bondholders, and that includes enforcement of provisions relating to the collection of tolls. The trustees both face this question: Do the statutes under consideration excuse them from insisting that the Highway Authority collect regular tolls from National Guardsmen and Army Reservists and pay over for the benefit of bondholders the amounts so collected? They need instructions about their duties as trustees. To give them instructions requires a ruling on the constitutionality of chapters 352 and 414 of the Laws of 1968. Support for this approach is to be found in Trustees of Rutgers College in New Jersey v. Richman, 41 N. J. Super. 259, 283-287 (Ch. Div. 1956). If there must be a truly adversary argument on both sides of a question in order to support a declaratory judgment, that is not true as a matter of general practice about all judgments containing instructions for trustees. It is not uncommon for a trustee to sue for instructions and then, when the matter comes before the court, to have one or more of the parties present suggest a solution from which none of the other parties dissent. Being satisfied that the question is a real one, actually faced or about to be faced by the trustee, a court of equity then goes forward as a matter of usual practice to enter a judgment giving appropriate instructions, and all of this in spite of the absence of arguments pro and con the proper way to solve the problem presented. Those who might have made arguments have been before the court. Their failure to oppose a suggested solution does not put the solution out of reach.

In this case the Attorney General has had the opportunity to argue for constitutionality, and the making of such an argument would have been his duty if he had considered it appropriate to do so. That he takes the position the statutes in question are unconstitutional is also within the scope of his powers and duties. Wilentz v. Hendrickson, 133 N. J. Eq. 447, 454 et seq. (Ch. 1943), aff’d 135 N. J. Eq. 244 (E. & A. 1944). His position may not be entirely like that of a trust beneficiary who chooses to agree with a suggested instruction to a trustee rather than argue against it, but at least there are marked similiarities between the two situations.

Art. IV, § VII, par. 3 of the New Jersey Constitution 1947) forbids our Legislature from passing any “law impairing the obligation of contracts * * Art I, § 10 of the United States Constitution provides that no state shall pass any “Law impairing the Obligation of Contracts * * Chapter 352 and 414 of the Laws of 1968 are unconstitutional because they violate these provisions. First National Bank of Boston v. Maine Turnpike Authority, 153 Me. 131, 136 A. 2d 699 (Sup. Jud. Ct. 1957), is particularly in point because it involved a modern toll road and held unconstitutional a statute which would have had the effect, if valid, of reducing somewhat the total of revenues available for bondholders to whom those revenues had been pledged by contract.

Chapters 352 and 414 being unconstitutional, judgment will be entered instructing plaintiff trustees as well as plaintiff Highway Authority that the provisions of the Authority’s bond resolutions are to be enforced and complied with as though those chapters had never been passed by the Legislature. The judgment shall include a specific order to the Highway Authority to charge tolls without regard to the terms of the two statutes so that it may perform its contract obligations to its bondholders and to their trustees and thereby do its part in responding to the enforcement instructions to the trustees which will be included in the judgment.

If the filing of this opinion attracts attention to the case on the part of anyone having a sufficient interest in the subject matter and a desire to be heard in opposition to the conclusions that have been reached, then application can be made to intervene (R. 4:33) and re-open (R. 4:50).


author: Rosenberg, J. C. C.

text:
    SUSSEX WOODLANDS, INC., PLAINTIFF, v. MAYOR AND COUNCIL OF THE TOWNSHIP OF WEST MILFORD, DEFENDANT.
    Superior Court of New Jersey Law Division
    Decided March 13, 1970.

      Mr. Reginald F. Hopkinson for plaintiff (Messrs. Jeffer, Walter, Tierney, DeKorte, Hopkinson & Vogel, attorneys).

      Mr. Louis Wallisch, Jr. for defendant (Messrs. Wallisch & Wallisch, attorneys).
   Rosenberg, J. C. C.

(temporarily assigned). Plaintiff Sussex Woodlands, Inc. brings this action in lieu of prerogative writs to set aside section 9-8, article II of the “Sketch Plat Procedure” of the Revised Ordinances of West Milford Township, as amended, to compel defendant township to approve a minor subdivision, and for such other relief as the court may deem necessary and proper. Plaintiff is presently before the court on a motion for summary judgment pursuant to R. 4:46. Defendant has filed a cross-motion for summary judgment to dismiss the complaint.

Plaintiff is the owner of property comprising approximately 2000 acres in West Milford Township. Within this tract is a piece of property known as Lot 3 in Block 247, fronting on Clinton Road and comprising 800.278 acres. Plaintiff, through its agent Fred Ferber, applied for a subdivision of this latter tract by which a lot comprising approximately three acres could be conveyed to one Frank Schoonyoung. A minor subdivision was approved by the West Milford Planning Board subject to plaintiff paying all taxes due and owing on the 800.278 acres. This action occurred in 1968. In August 1969 the planning board reapproved the subdivision application subject to the same condition that taxes be paid. The validity of this contingency is the sole issue in this matter.

The alleged right of the planning board to impose the tax payment contingency on the approval of minor subdivisions is based in section 9-8, Article II, “Sketch Plat Procedure,” of the Revised Ordinances of West Milford Township. On December 15, 1967 the then township committee amended this section to provide that “no minor subdivision shall be approved unless the sketch plat complies with the plat details as outlined in Section 9-22 of this ordinance, and unless there is first filed with the Secretary of the Planning Board an Official Tax Search from the Collector of Taxes showing that all taxes are paid to date.” (Emphasis added). The same requirement, namely, proof of taxes, is presently in effect regarding major subdivisions. Plaintiff claims that this amendment is ultra vires and that as it relates to his property the amendment constitutes an unconstitutional taking of property without due process of law.

It is a well established principle in our law that there is no inherent right of local self-government. Municipalities are but creatures of the State, “limited in their powers and capable of exercising only those powers of government granted to them by the Legislature * * Wagner v. Newark, 24 N. J. 467, 474 (1957). See also, Fred v. Mayor, etc., Old Tappan, 10 N. J. 515, 518 (1952); Trenton v. State of New Jersey, 262 U. S. 182, 187, 43 S. Ct. 534, 67 L. Ed. 937, 942 (1923).

The Constitution of 1947, Art. IV, § VII, par. 11, secures to municipalities not only those powers which are expressly granted to them but also “those of necessary or fair implication, or incident to the powers expressly conferred, or essential thereto, and not inconsistent with or prohibited by this Constitution or by law.5' In addition the Constitution provides that all constitutional or statutory provisions concerning municipalities “shall be liberally construed in their favor.” The State of New Jersey, then, in its relation to its municipalities, is what is commonly referred to as a legislative homo rule state. Because of the constitutional provision providing for liberal construction of municipal powers, it would be more correct to categorize New Jersey as a liberal legislative home rule state. New Jersey is not, however, a pure or constitutional home rule state. The powers of its municipalities, while liberally construed, are not absolute. Municipal powers are still derived from the Legislature.

I find it necessary to develop this concept of municipal power because that is essentially the underlying issue of this case. That is, does a municipality in acting through its planning board have the power to impose a condition on a landowner that taxes be paid prior to the grant of subdivision approval?

In addition to the constitutionally protected right of liberal construction of municipal powers, the Municipal Planning Act, N. J. S. A. 40:55-1.1 to 1.29, specifically carries forward this idea of construction favorable to municipalities. N. J. S. A. 40:55-1.3 provides that the act “shall be construed most favorably to municipalities, its intention being to give all municipaliites the fullest and most complete powers possible concerning the subject matter hereof.”

It is evident from the foregoing then that when a municipality acts in the performance of its planning functions it has a strong basis from which to do so. Article VI of the New Jersey Constitution, supra, grants to municipalities powers incidental to those expressly conferred, and further provides that all statutory and constitutional provisions concerning municipalities are to be liberally construed. In addition, our Legislature has provided that the Municipal Planning Act, is to be given a construction favorable to municipalities.

The specific statutes upon which West Milford’s subdivision ordinance is based and the provisions which allegedly give the township the power to impose the tax payment condition are N. J. S. A. 40:55-1.14 and 1.15. The former section provides:

In any ordinance creating a planning board or in any amendment or supplement thereto, provision may be made for the regulation of subdivisions within the municipality by approval of the planning board acting in lieu of the governing body of all plats before such plats may be filed with the county recording officer, provided such ordinance regulating subdivisions establishes regulations, requirements, and standards for plat approval by the planning board. [Emphasis added]

N. J. S. A. 40:55-1.15 provides that the governing body shall adopt by ordinance “standards for approving the design of subdivisions and the required street improvements, requirements for the submission of subdivision plats, and the procedure to be followed by subdividers.” Can it be said that these statutes, liberally construed in light of the constitutional and statutory mandates, give New Jersey municipalities the implied power to impose payment of taxes as a condition precedent to subdivision approval? Eor the following reasons I hold that our municipalities are not the possessors of this right.

It is an established principle in municipal planning law that the power of municipalities to promulgate regulations, requirements and standards governing subdivision approval is to be broadly construed. Smith v. Morris Tp. Comm., 101 N. J. Super. 271, 279 (App. Div. 1968). Equally established is the requirement that an ordinance be enacted pursuant to a legislative grant. Whether an ordinance be related to zoning, land subdivision, or whatever, all provisions of the ordinance must be within the confines of the relevant statute. As the court stated in Stoker v. Irvington, 71 N. J. Super. 370, 378 (Law Div. 1961), when municipalities regulate subdivisions “their powers are circumscribed by the provisions of the statute and they can act only in the manner therein prescribed.”

Applying these principles to the present matter and recognizing full well that statutes concerning municipalities must be afforded a liberal intrepretation, I remain of the opinion that to permit municipalities the right to impose payment of taxes as a prerequisite to subdivision approval would be to give a strained interpretation to the Municipal Planning Act in general and N. J. S. A. 40:55-1.14 and 1.15 in particular. I have found no reported case in this or any other jurisdiction which would permit a municipality to impose such a condition. A review of the New Jersey cases construing the power of municipalities to impose conditions on subdivision approval indicates that regulatory ordinances are intended for the purpose of reasonably controlling the physical development of subdivision property. See Longridge Builders, Inc. v. Planning Board of Princeton Tp., 92 N. J. Super. 402 (Law Div. 1966); (streets); Hilton Acres v. Klein, 35 N. J. 570 (1961) (sewage disposal); Koslow v. Municipal Council of Wayne Tp., 52 N. J. 441 (1968) (soil removal). Indeed, the Municipal Planning Act itself gives sustenance to this view. N. J. S. A. 40:55—1.20 sets forth certain conditions to be required in acting upon plats. All of the conditions therein relate to the physical development of subdivision tracts.

Municipal planning experts are also in agreement with this thesis. In Rathkopf’s work on zoning and planning, the author states:

Because tlie subdivision of a large tract of land into a number of small building lots and the development thereof, either for residential or industrial purposes, increases the value of the land in the aggregate, to the subdivider, and at the same time imposes new burdens upon the municipality and, if uncontrolled, upon other elements in the community, the validity of statutory provisions imposing a duty upon the subdivider to comply with reasonable rules and regulations relating to improvements in the public interest, such as streets and highways of suitable width, grade, and paving, installation of sidewalks, storm drains, sanitary sewers, water mains, gutters, curbs, street lighting standards, and other improvements, has seldom, if ever, been questioned. [Rathkopf, The haw of Zoning and Planning (3d ed. 1970), § 7, at 71-51; emphasis added]

See also Rhyne, Municipal Law, § 32-60, at 978.

In further substantiation of the proposition that planning conditions are limited to control over physical improvements to subdivisions is the 1952 suggested revision of the Municipal Planning Act. This annotated revision was prepared by the Planning Legislation Subcommittee of the Legislative Advisory Committee on the Revision of the New Jersey Planning Act. It has been substantially embodied in our present planning act. There is nothing in the editorial notes of this revision which even remotely recommends that municipalities be vested with the power to condition subdivision approval on the payment of real property taxes.

Reference is made by defendant township to the case of Economy Enterprises, Inc. v. Manalapan Tp. Comm., 104 N. J. Super. 373 (App. Div. 1969). Here there was the question of the right of a municipality to require a developer to pay fees broadly correlative with the expenses by the township in seeing to the fulfillment of the conditions authorized and imposed prior to the final subdivision plat. The court held that the township had the implied power to provide by ordinance for the payment by a land developer of reasonable inspection fees to carry into effect powers and duties conferred by the Municipal Planning Act. This decision restricts somewhat the view discussed above that the imposition of subdivision conditions is limited to controls relating to the physical development of the property. It does not prove to my satisfaction, however, that simply because a municipality has the implied power to condition subdivision approval on the payment of expenses incurred, it therefore follows that a municipality has the power to require that taxes be paid before it will grant a subdivision approval. The two powers are clearly distinguishable.

What the Township of West Milford has attempted to do in passing ordinances which condition both major and minor subdivision approval on the payment of real property taxes is to try and collect back taxes in a manner not prescribed by statute. The township urges that this was not the reason for the ordinances, but I find the argument to be specious, It brings to mind the familiar phrase: “A rose by any other name would smell as sweet.”

As far back as 1872 our courts recognized that taxes may not be collected without the statutory authority to do so. State, Trustee, &c. v. Lewis, 35 N. J. L. 377 (Sup. Ct. 1872). In the case of E. E. Leach, Inc. v. James, 127 N. J. L. 318, 320 (Sup. Ct. 1941), our former Supreme Court held that a municipality “cannot, by ordinance, provide a new method to collect delinquent taxes.” Ehvne, in his work on municipal law, indicates that state legislators may prescribe the method of enforcing collection of taxes. Taxes are not debts, but are wholly the creatures of statute, and when the statute provides a method of collection of taxes under given circumstances, that method is exclusive.” Rhyne, op. cit., § 28-16, at 703.

New Jersey has passed legislation which specifically provides the manner in which delinquent real property taxes are to be collected. N. J. S. A. 54:5-1 et seq. N. J. S. A. 54:5-19 states that when taxes are in arrears, as defined therein, “the collector or other officer charged by law in the municipality with that duty, shall * * * enforce the lien by selling the property in the manner set forth in this article.” Specific means for the collection of real property taxes is thus provided for by statute.

The language of Chief Justice Vanderbilt in Magnolia Development Co., Inc. v. Coles, 10 N. J. 223 (1952), best sums up the scope of municipal power in a matter similar to the one presently before this court. In holding that a municipality must regulate new developments within the framework of the statutes provided for such purposes, he said:

® * * A municipality lias only those powers which are granted to it by statute, albeit those powers by virtue of Article IV, Section VII, paragraph II, of the Constitution of 1947 are to be liberally construed :
“The provisions of this Constitution and of any law concerning municipal corporations formed for local government, or concerning counties, shall be liberally construed in their favor. The powers of counties and such municipal corporations shall include not only those granted in express terms but also those, of necessary or fair implication, or incident to the powers expressly conferred, or essential thereto, and not inconsistent with or prohibited by this Constitution or by law.”
But the constitutional mandate for the liberal construction of the powers of municipal corporations constitutes no warrant for their imposing conditions on the operation of a statute where the Legislature has not, as it has not here, authorized either expressly or by-implication the imposition of such conditions. To permit a municipality to impose conditions outside the statute on the exercise of its statutory powers would inevitably result in the subversion of those powers to purposes never contemplated by the Legislature under the most liberal construction, [at 227]

In the present case defendant township is not without the power to impose conditions for the development of new areas within its boundaries. N. J. S. A. 40:55—1.1 to 1.29 (Planning Act). Defendant is also not without the power to collect taxes. N. J. S. A. 54:5-1 et seq. It does not, however, have the power to impose a tax payment condition under the guise of an act which does not authorize this condition.

For the foregoing reasons the ordinances of West Milford Township which purport to condition subdivision approval on the payment of real estate taxes are hereby declared invalid. Since planning board approval was withheld solely for this reason, final approval is hereby ordered.

The motion for summary judgment is granted since there is no question of material fact and plaintiff is entitled to judgment as a matter of law. R. 4:46. Defendant’s motion for summary judgment is denied.


author: Leonard, J. A. D.

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. WILLIAM LEONARDO, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued March 9, 1970
    Decided March 30, 1970.

      Before Judges KiiiinsjsrsrY, Labbecque and Leonabd.

      Mr. James A. Palmieri argued the cause for appellant.

      Mr. Edward G. Laird, Assistant Prosecutor, argued the cause for respondent (Mr. Joseph P. Lordi, Essex County Prosecutor, attorney).
   The opinion of the court was delivered by

Leonard, J. A. D.

Defendant appeals a judgment of conviction by the County Court for being under the influence of a barbiturate (N. J. S. A. 2A:170-77.8), entered following a trial de novo upon an appeal from the municipal court. Defendant was sentenced to the county penitentiary for six months.

On January 19, 1968 defendant was apprehended by Bloomfield Patrolman DeMasi at approximately 6:45 p.sr. At that time defendant and another man were slumped over in the front seat of an automobile. DeMasi nudged defendant, who thereupon stared and mumbled but never answered the question as to what was wrong. The officer then recognized him as a registered narcotic addict. Defendant was placed under arrest and searched. The search revealed a small plastic cannister containing three white pills with the letters CTBA on them.

At or about 7:15 that evening defendant was examined by Bloomfield police surgeon Galioto at the police station. The physician testified that defendant was under the influence of Doriden, a drug similar in its action to phenobarbital, a barbiturate. The drug induces narcosis and sleep and is usually prescribed at bedtime. Defendant told the doctor that he had taken two pills that day, the last one at 5 p.m.

Upon arriving at headquarters Patrolman DeMasi called the proprietor of the drug store and the doctor whose names appeared on the container. He ascertained that a prescription issued to defendant by a Dr. Moretti had been filled the night before for 15 pills.

Defendant took the stand and admitted having the pills pursuant to a prescription given to him by his physician, Dr. Moretti. He conceded that although the prescription was for one at bedtime, he had taken two during the day of his arrest. He testified that his doctor told him that he could take the drug during the day as a tranquilizer. However, Dr. Moretti, who was treating defendant for a gastric neurosis and a nervous condition, testified that he told him that he could take no more than a half of a tablet during the day.

In attempting to account for the 15 pills defendant testified that in addition to the 2 he had taken, 3 were in the container, 1 y¿ were found in the ear and 8}4 were at his home at the time of his arrest. At the trial he produced an envelope containing 8}4 pills.

The trial judge was not impressed with defendant’s testimony. From all of the evidence the judge found there was no basis for a conclusion that the pills in the envelope were the same as were in the original prescription bottle, and it was more plausible that defendant had during the day taken a good many of the 12 tablets that were missing from the bottle. Accordingly, the judge concluded that the State had sustained its burden of proving that defendant was under the influence of the drugs.

Defendant on this appeal does not challenge the trial judge’s factual finding as to the amount of pills he consumed. Bather, he advances the legal argument that a person is entitled to an acquittal of being a disorderly person for using or being under the influence of a prescription legend drug in violation of N. J. S. A. 2A:170-77.8, if it appears that he obtained the drugs on the valid prescription of a duly licensed physician. In support of this argument he asserts that there is nothing in the statute which states that only the proper and prescribed dosage must be taken. Thus, he contends now, as he did below, that having obtained the drugs pursuant to such a valid prescription, he was entitled to an acquittal, even though he consumed them in excess of the prescribed dosage.

N. J. S. A. 2A:170-77.8 in its present form provides:

Except as hereinafter provided, any person who uses or is under the influence of, or who possesses or has under his control, in any form, any depressant or stimulant drug as defined pursuant to law or any other prescription legend drug, which is not a narcotic drug within the meaning of chapter 18 of Title 24 of the Revised Statutes, unless obtained from, or on a valid prescription of, a duly licensed physician, veterinarian or dentist, is a disorderly person.
In a prosecution under this act, it shall not be necessary for the State to prove that the accused did use or was under the influence of any specific drug or drugs, but it shall be sufficient for a conviction under this act for the State to prove that the accused did use or was under the influence of some drug or drugs as aforesaid by proving that the accused did manifest physical and physiological symptoms or reactions caused by the use of any such drug. [Emphasis added]

The original section, passed in 1962, in its pertinent part provided:

Except as hereinafter provided, any person who possesses or has under his control, in any form, amphetamine, barbiturate, barbital, hypnotic or somnifacient drugs, tranquilizers or any prescription legend drug which is not a narcotic drug within the meaning of section 24:18-2 of the Revised Statutes, unless obtained from, or on a valid prescription of, a duly licensed physician, veterinarian or dentist, is a disorderly person. [L. 1962, c. 113]

In 1964 the original section was amended to add the italicized words noted below.

Except as hereinafter provided, any person who uses or is under the influence of, or who possesses or has under his control, amphetamine, barbiturate, barbital, hypnotic or somnifacient drugs, tranquilizers, or any prescription legend drug, in any form, which is not a narcotic drug within the meaning of section 24:18-2 of the Revised Statutes, unless obtained from, or on a valid prescription of, a duly licensed physician, veterinarian or dentist, is a disorderly person.

The 1964 amendment also added the second paragraph.

In 1966 a more inclusive general classification of the prohibited drugs was substituted for those previously enumerated.

From this statutory history it is clear that the Legislature in 1962 originally sought only to make illegal possession or control of a legend drug, other than narcotics, disorderly conduct. It is equally as clear that at the same time it also sought to except from this illegality, possession of such drugs as were “obtained from or on a valid prescription of, a duly licensed physician, veterinarian or dentist.” This act made no reference to any offense other than possession or control. However, in 1964 the Legislature extended the scope of the act by also making one who uses or is under the influence of these drugs a disorderly person. At that time, the above-noted exception from guilt — if obtained upon a valid prescription — was allowed to remain in the same language as before. Likewise, no change was made in that clause when the act was last amended in 1966.

Thus, under N. J. S. A. 2A:170-77.8, as it presently exists, a person who possesses- or has under his control legend drugs, or is using them, or is under the influence thereof, is not guilty of being a disorderly person if he obtained the drugs on a valid prescription of a duly licensed physician, veterinarian or dentist. As defendant points out, there is no statutory language which restricts the exception from guilt to the person who uses or consumes these drugs in accordance with the prescribed dosage.

To the contrary, N. J. S. A. 2A:170-8, which solely pertains to “using or being under the influence of a narcotic drug,” provides:

Any person who uses or who is under the influence of any narcotic drug, as defined in article 1 of chapter 38 of Title 24 of the lie-vised Statutes (Food and Drugs), the uniform narcotic drng law, for a purpose other than the treatment of sickness or injury as prescribed or administered by a person duly authorized by law to treat sick and injured human beings, is a disorderly person.
In a prosecution under this chapter, it shall not be necessary for the State to prove that the accused did use or was under the influence of any specific narcotic drug or drugs, but it shall be sufficient for a conviction under this chapter for the State to prove that the accused did use or was under the influence of some narcotic drug or drugs * * * by proving that the accused did manifest physical and physiological symptoms or reactions caused by the use of any narcotic drug. [Emphasis added]

Tlie original narcotic statute passed in 1951 (L. 1951, c. 330) contained tbe exact language as the present act except it was limited to any person who “uses” the drug. In 1957 N. J. S. A. 2A:170-8 was amended to make one who is “under the influence of” a narcotic drug also a disorderly person and to add the second paragraph as above quoted.

It is to be noted that the alternative language, “uses” or “is under the influence of” as used in the narcotic statute, is apparently synonymous since “being under the influence of” was added merely to cover an offender who had used or consumed the drug in another jurisdiction. State v. Reed, 34 N. J. 554, 567 (1961).

Insofar as narcotic drugs are concerned, the Legislature since 1951 has excepted from guilt as a disorderly person solely the individual who uses or consumed the drug for the treatment of sickness or injury “as prescribed or administered.” This language makes it very clear that any person who uses or consumes a narcotic drag in excess of the prescribed dosage would be guilty of the offense even though he might have obtained possession thereof upon a valid prescription.

Thus, it appears that when the Legislature originally adopted N. J. S. A. 2A:170-77.8 in 1963 and amended it in 1964 and 1966 it was familiar with the specific limiting language previously used in 1951 and 1957 in N. J. S. A. 2A:170-8 and it could have used it if desirable, but it chose not to do so.

We cannot extend the language of a statute beyond that used by the Legislature. State v. Carbone, 38 N. J. 19, 34 (1962). A penal statute must be strictly construed and will not be held to create a liability not clearly fixed by the words of enactment. Neeld v. Giroux, 34 N. J. 224, 229 (1957). Before one can be punished under such a statute, the condemned act must be plainly and unmistakably within the statute. State v. Caez, 81 N. J. Super. 315, 319 (App. Div. 1963). Any doubt as to the meaning thereof should be resolved in favor of a defendant. State v. Wean, 86 N. J. Super. 383, 389-91 (App. Div. 1965).

As much as it may be desirable, we cannot hold under these circumstances that the entire statutory scheme of this State relating to narcotics and dangerous drugs establishes that the Legislature intended the omitted words to be included in N. J. S. A. 2A:170-77.8. Rather, we must construe this statute to prohibit solely the possession, use of, or being under the influence of legend drugs which are not obtained pursuant to a valid prescription. We cannot extend its meaning to cover the using of or being under the influence of such drugs as a result of consuming them in excess of the dosage set forth in the prescription. It does not comport with sound legislative construction to require that the aforementioned express language of N. J. S. A. 2A:170-8 be implied in N. J. S. A. 2A:170-77.8.

Our interpretation does not destroy the efficacy of N. J. S. A. 2A:170-77.8. It does not hinder the prosecution thereunder of the multitude of persons who are not medically ill and possess, use or become under the influence of surreptitiously-obtained legend drugs. Any un desired defect in this act must be corrected by the Legislature and not by the judiciary.

A reading of the second paragraph of N. J. S. A. 2A:170-77.8 does not mandate the opposite construction. This section — there is a similar section contained in N. J. S. A. 2A:170-8—was placed in the statute to relieve the State from the difficult burden of proving the exact drug which the defendant has taken. It does not purport to define unlawful conduct and cannot be read to make excessive use unlawful.

Although this issue is not before us, query, does N. J. S. A. 2A:170-77.8 exempt a person who uses a legend drug or is under the influence thereof which he obtained for his pet animal upon a valid prescription of a veterinarian?

The judgment of conviction is reversed and the matter is remanded to the County Court for the entry of a judgment in accordance herewith.