author: Lynch, J. A. D.

text:
    STATE OF NEW JERSEY, DEPARTMENT OF LAW AND PUBLIC SAFETY, BOARD OF EXAMINERS OF ELECTRICAL CONTRACTORS, PLAINTIFF-RESPONDENT, v. JOULE TECHNICAL CORPORATION, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Remanded May 18, 1973—Reargued December 10, 1973
    Decided February 7, 1974.

      Before Judges Lynch, Mehler and Michels.

      Mr. Charles K. Kurebanas argued the cause for appellant.

      Mr. Bertram, P. Coltz, Jr., Deputy Attorney General, argued the cause for respondent {Mr. George F. JCugler, Jr., Attorney General, attorney; Mr. Stephen Slcitlman, First Assistant Attorney General, of counsel).
   The opinion of the court was delivered by

Lynch, J. A. D.

The issue in this case is whether appellant Joule Technical Corporation (Joule) is engaged in the business of an “electrical contractor,” within the meaning of N. J. S. A. 45:5A-1 et seq., which requires anyone engaged in such business to obtain a license from the Board of Examiners of Electrical Contractors (Board). N. J. S. A. 45:5A-9. Joule contends that it is not engaged in such business and needs no license from the Board to do so.

On August 24, 1972 the Board, after a hearing, rendered a decision reaffirming a previous determination by it that Joule was engaged in the business of electrical contracting and imposed a penalty of Í^OO. Joule appealed to this court which, pursuant to an unreported per curiam opinion of May 18, 1973, remanded the matter to the Board for a full hearing, with directions that it make express findings of fact as to the nature of Joule’s operation, and conclusions of law. We retained jurisdiction.

A hearing was held before the Board’s hearing officer, who thereafter filed findings of fact, conclusions, and recommendations. He recommended that the Board rescind its previous decision that Joule was an “electrical contractor” and remit any fines collected. Upon review the Board rejected the hearing officer’s recommendation and reaffirmed its previous position. That determination is now before us for decision.

In making his findings of fact, the hearing officer accepted the testimony which was uncontradicted and which generally described Joule’s operation as follows. It hired out temporary employees, including electricians, to companies which needed them as “fill-ins” on a temporary basis. The incident which gave rise to this proceeding involved Joule’s providing an electrician to Celanese Corporation. The employee was on Joule’s payroll but under the complete supervision of Celanese. After the employee’s payroll taxes and fringe benefits, as well as Joule’s overhead and profit, were deducted, the em-, ployee received the remainder.

The hearing officer concluded:

It is clear from the evidence adduced at this hearing that [Joule] was not in the business of being an electrical contractor, rather they were in the business of supplying manpower on an hourly basis for industries’ temporary needs. Modern industry has a need from time to time for fill-ins or temporary help, both technical and otherwise. Service companies spring up to supply this need, and Joule Technical Corporation is just one such company.

The Board, after reviewing the transcript of the hearing and considering the hearing officer’s recommendations, made its own “Findings of Fact.” In their entirety they were stated:

FINDINGS OF FACTS

1. Between April and October, 1971, Joule Technical Corporation entered into a contract or contracts to supply Celanese with an electrician.

2. Said electrician, one W. Dmytreshin, performed various duties in connection with the maintenance of electrical facilities at the Celanese plants located in Clark and Summit, New Jersey.

3. Mr. Dmytreshin performed such electrical work without the supervision of a licensed electrical contractor, nor is he [sic] a regular employee of Celanese who is a qualified journeyman electrician.

The Board concluded that the facts thus found established Joule as an “electrical contractor” within the statutory definition thereof contained in N. J. 8. A. 45:5A-2(d). That definition reads as follows:

“Electrical contractor” means a person who engages in the business of contracting to install, erect, repair or alter electrical equipment for the generation, transmission or utilization of electrical energy;

Was Joule, then, “contracting” to install, erect or repair electrical equipment when it hires out an electrician as a “fill-in” to another company?

Websiers’ New International Dictionary of the English Language (2d ed. 1950), 579, defines “contractor” as follows:

One who contracts; a party to a bargain; one who formally undertakes to do anything for another; specif., one who contracts to perform work, or supply articles on a large scale, at a certain price or rate, as in building houses or provisioning troops. Such a contractor specializing in a [specified] material or type of work, as in:
advertisement coal contractor road contractor
contractor stone contractor timber contractor

For a person to come within the statutory definition of “contractor,” it is clear that he must be undertaking to do the work. It is also evident that, if he engages someone (as an electrician) to do it, the alleged “contractor” is not himself undertaking to do the work unless the person he engages (the electrician) is his servant or agent. Conversely, if that person is not the alleged “contractor’s” servant or agent but the work as the servant or agent of the company to whom he is hired out (here Celanese), then the latter (vicariously through the hired electrician), is doing the work and the alleged “contractor” has not undertaken to do it.

When a servant is directed or permitted by his master.to perform services for another, he may become the servant of such other. The question of whether the general employer, or the special employer, is the master turns largely upon the decision as to who has the right to exercise control over the servant. Younkers v. Ocean County, 130 N. J. L. 607, 608 (E. & A. 1943). We are not unmindful of differences of opinion as to the influence of the “right of control” test in determining a master and servant relationship, and that, indeed, it depends upon whether the issue involves liability to third persons, or liability of the employer to employee or other considerations. See concurring opinion by Judge Schettino in Devone v. Newark Tidewater Terminal, Inc., 14 N. J. Super. 401, 406 (1951) (concurring opinion). True, the “right of control” standard is not the sole test of the master and servant relationship, but it is the1 predominant one. See Falk v. Unger, 33 N. J. Super. 589 (App. Div. 1955). So too, in Devone v. Newark Tidewater Terminal, Inc., supra, the majority opinion recognized the “control” test as “not merely the important one, but decisive” and the law of Eew Jersey. 14 N. J. Super. at 405.

We are aware that, in Viggiano v. Reppenhagen, 55 N. J. Super. 114 (App. Div. 1959), where defendant rented a car and driver to another and the driver struck and injured one of the rentee’s employees, it was held that the driver remained defendant’s master so as to hold it vicariously liable for the injuries. The court pointed out that the defendant was in the regular business of renting trucks, it had full control over the mechanical fitness of the vehicle, and while driving the truck the driver was furthering the interest of his employer. While it may be argued that Viggiano is applicable here, we find it distinguishable. In Viggiano the control of the truck or its driver in the operation of the vehicle did not pass to the rentee as did the control of the electrician to Celanese here.

As the tests of master and servant relationship may vary depending upon the nature of the issue here (Judge Schettino’s concurring opinion in Devone, supra), in the construction of the instant statute, i. e., whether Joule is in the business of an “electrical contractor,” we conclude that the “control” test is the logically determinative one in demonstrating that Joule is not undertaking “to do” the electrical work in sending an electrician to Celanese.

By way of illustrating application of the relevant principles as to master and servant, Restatement, Agency 2d (1958), § 227, gives the following example:

3. P, a master carpenter, by agreement with B, sends A, a skilled cabinetmaker, to work with B’s servants for a week, under the direction of B’s foreman, in the reconstruction of a stairway. For this B is to pay P an agreed amount. A acts as the servant of B in building the stairway, [at 502]

That example fits here. Joule would be “P,” “B” Celanese, and “A” the electrician sent by Joule to Celanese.

California’s Business and Professions Code provides that a “contractor” may not bring an action for compensation unless he is duly licensed. Thus the question arises as to whether one is a “contractor” and, if unlicensed, barred from such a suit. In Dahl-Beck Electric Co. v. Rogge, 275 Cal. App. 2d 893, 80 Cal. Rptr. 440 (D. Ct. App. 1969), plaintiff, an electrical contractor, was performing work on a job pursuant to contract, and needed a backhoe for trench-digging. Plaintiff contacted defendant Rogge who sent defendant Stratford and the backhoe to the jobsite. The rate agreed to be paid to Rogge by Dahl-Beck was $14 an hour for providing one man and the backhoe. Stratford was paid by Rogge on the basis of the time spent on the backhoe. Stratford reported to Albright, foreman of plaintiff Dahl-Beck. Albright directed Stratford as to where and how far to dig the trench, and told him to be careful because there were pipes and a water main in the area. During the digging a water main was damaged and plaintiff was required to make emergency repairs. Dahl-Beck started a suit to recover the cost of those repairs but did not pay Rogge for the work done by Stratford. Rogge cross-complained for $1,215 for services performed. Relevant here is the question in that case as to whether Rogge was a “contractor” under the California statute. If he was, being unlicensed, he would be barred from recovery. The jury, after instructions on the issue, held that Rogge was not a “contractor.” The court, on appeal,. observing that the evidence indicated that Stratford acted on direction of Albright, plaintiff’s foreman, and

that there was no evidence of supervision by Rogge, held that it was proper to submit the issue to the jury. The court cited, among other cases, that of Rodoni v. Harbor Engineers, 191 Cal. App. 2d 560, 12 Cal. Rptr. 924 (D. Ct. App. 1961). There plaintiff testified that he was in the business of renting equipment and hiring out drivers. Payment for equipment and men was made on an hourly basis and plaintiff had nothing to do with the supervision of the work. It was held that plaintiff was entitled to recover, that he was not a “contractor,” and the fact that he listed himself as “contractor” only raised a conflict in the evidence. See other cases cited in Dahl-Beck, 80 Cal. Rptr. at 445, particularly Andrew v. Conner, 101 Cal. App. 2d 621, 225 P. 2d 943 (D. Ct. App. 1951), where the lienor’s sole participation was rental of men and equipment to lienee who supervised, directed and controlled the work. There, too, the lienor was held not to be a “contractor” and, though unlicensed, was not barred from recovering his compensation.

We recognize that in .the cited California cases the issue as to whether plaintiff (or cross-claimant Rogge in Dahl-BecTc), was a “contractor” was said to be determined by the factfinder —■ jury or judge sitting without a jury. So too, in our State, questions of agency or master and servant relationships are ordinarily for the jury. But jury questions are presented only where there are disputed facts or where disputed inferences may be drawn from undisputed facts. Marion v. Public Service Elec. & Gas Co., 72 N. J. Super. 146, 157-158 (App. Div. 1962). And where the evidence is uncontradicted and permits but one reasonable conclusion as to an issue of agency, that issue is a question of law for the court and not for the finder of fact. Harvey v. Craw, 110 N. J. Super. 68, 74-75 (App. Div.), certif. den. 56 N. J. 479 (1970); Collins v. Ames, 98 N. J. L. 828 (E. & A. 1923); Scherer v. Post Office B. & L. Ass’n, 91 N. J. L. 666 (E. & A. 1917).

We consider it significant that the Board’s “Findings of Fact” below —■ as distinguished from those of the hearing officer — made no determination of the issue as to whether the electrician was under the direction and control of Celanese in doing his work.

Here the evidence is uncontradicted that the electrician hired out to Celanese was completely under the direction and supervision of Celanese. We so find, as fact and law. There was no evidence that there was any such control by Joule. Cf. Dahl-Beck vis-a-vis Rogge. It follows that Joule was not, absent any other evidence to the contrary (per principles of respondeat superior), “doing” the work at Celanese, nor had it contracted to do it. The electrician was the employee of Celanese as he acted under its direction and control.

In support of its decision below, the Board cites Bd. of Examiners v. S. T. Peterson & Co., Inc., 106 N. J. Super. 599 (App. Div. 1969), and Ind. Elec. Ass’n of N. J. v. N. J. Bd. of Exam., 54 N. J. 466 (1969). Neither case is apposite here. S. T. Peterson held that a general contractor who did electrical work only as incidental to his general maintenance work was an “electrical contractor.” As the court stated, the work was done “by defendant’s electricians.” 106 N. J. Super. at 601. In fact the court expressly said “the electricians are not employees of Shell.” Id. at 603. There was no indication that they were under Shell’s direction and control. The evidence here demonstrates uncontrovertibly that the electrician was solely under the control of Celanese. S. T. Peterson went on to hold that the contractor was not exempt under section 18 (k) of the act, a consideration not relevant here.

Ind. Elec. Ass’n of N. J. merely upheld the constitutionality of the instant statute and had nothing whatever to do with the master and servant issue here involved. The Board cites it principally in support of the motivating objectives of safety with respect to supervision of electricians contemplated by the act. But the case is no authority whatever for bringing Joule within the term “electrical-contractor” if he is not, as we hold. The same objective of safety by supervision might be said to apply to a developer-contractor who does electrical work in construction of homes owned by him and intended for resale, and that therefore he too is an “electrical contractor” within the meaning of the statute. But in Sands v. Bd. of Examiners of Electrical Contractors, 90 N. J. Super. 82 (App. Div. 1966), this court held that such a person was not an “electrical contractor.” The court rested its decision on fundamental rules of statutory construction that words of a statute are to be given their ordinary meaning, and that such meaning is particularly important where the statute contains penal provisions, for it is not to be presumed that the Legislature intended punishment to extend further than expressly stated. In Sands the court held that it would not stretch the statutory language to cover the builder when he was not covered by it.

So here. We conclude that Joule was not an “electrical contractor” within the meaning of the statute, as decided by the Board. Its decision to that effect is reversed.

      The Board later conceded that it had no power to assess such a penalty and that its right to recover a penalty was limited to institution of a civil action therefor. N. J. S. A. 45:5A-20. This question is not now material here.


source: Caselaw Access Project

license: Public Domain

text:
    SUPERMARKETS OIL COMPANY, INCORPORATED, A NEW JERSEY CORPORATION, PLAINTIFF-RESPONDENT, v. JOHN M. ZOLLINGER, BUILDING INSPECTOR, AND THE MAYOR AND COUNCIL OF THE BOROUGH OF SAYREVILLE, NEW JERSEY, DEFENDANTS-APPELLANTS.
    Superior Court of New Jersey Appellate Division
    Argued November 19, 1973
    Decided February 8, 1974.

      Before Judges Lynch, Mehler and Michels.

      Mr. James V. Higgins argued the cause for appellants.

      Mr. Arthur W. Burgess argued the cause for respondent {Messrs. Toolan, Bomond, Burgess <& Abbott, attorneys).
   The opinion of the court was delivered by

Lynch, J. A. D.

This is an appeal by defendants, respectively the building inspector and mayor and council of the Borough of Sayreville (borough), from a judgment in an action in lieu of prerogative writs whereby the building inspector was ordered to issue to plaintiff a permit for erection of an automobile car wash on its property where it operates a gasoline filling station. The judgment also adjudged that (a) an automobile car wash was a permitted use in the B-3 Highway Business Zone as a “public garage,” as declared in Definition No. 20 of the borough’s zoning ordinance, and (b) plaintiff was not required to exhaust its administrative remedies at the municipal level before instituting its “in lieu” action in the Law Division.

On July 30, 1971 plaintiff had applied to the board of adjustment for a permit to construct a gasoline filling station and automatic car wash. However, plaintiff withdrew its application for permission to construct the car wash and, subsequently, on recommendation of the board of adjustment, the mayor and council authorized the gasoline station use.

About a year later, May 28, 1972, defendant building inspector issued a building permit to plaintiff authorizing construction of the car wash. On June 21, 1972 the mayor and council directed the building inspector to revoke the permit and he forthwith did so. Thereupon plaintiff instituted this “in lieu” action.

The basic reasoning of the trial court in directing issuance of the permit for the car wash is that such an operation is a permitted use under the borough’s zoning ordinance in that it comes within the definition of a “public garage,” a permitted use in a B-3 District.

That definition reads as follows:

A building or part thereof, other than a private garage, used for the storage, care or repair of motor vehicles for profit, including any sale of motor vehicles, fuels, or accessories, or where any such vehicles are kept for hire. [Sayreville zoning ordinance, Art. Ill, f 20]

More specifically, the trial court held that a car wash comes within the definition because it is a facility for the “care” of automobiles.

Appellants’ first contention is that plaintiff failed to exhaust its administrative remedies by failing to appeal to the board of adjustment before instituting its “in lieu” action, citing B. 4:69-5. But where interpretation of a zoning ordinance is called for, the issue is a legal one and is peculiarly suited to the judicial function, and resort need not be first had to administrative remedies. Schack v. Trimble, 48 N. J. Super. 45 (App. Div. 1957), aff’d 28 N. J. 40 (1958); Jantausch v. Verona, 41 N. J. Super. 89 (Law Div. 1956), aff’d 24 N. J. 326 (1957). Here we have an issue as to interpretation of a “public garage” as defined in the borough’s ordinance, and therefore exhaustion of administrative remedies was not required before institution of this “in lieu” action.

First, it is noted that a “car wash” is not expressly mentioned as a “permitted use” under the ordinance, though many other uses are mentioned, including automobile sales rooms and public garages. (Ordinance, Art. XI, 1(f)). At the time of plaintiffs application for the building permit, gasoline service stations were also mentioned, though later eliminated as a permitted use.

Is a car wash facility, then, a “building * * * used for the * * * care * * * of motor vehicles,” and therefore a public garage within the meaning of this ordinance ?

Respondent cites several out-of-state eases wherein the court referred to general definitions of “garage” as a “station at which motor cars can be sheltered, stored, repaired, cleaned, and made ready for use; also a place of private storage for a motorcar, a stable for motor cars.” (Emphasis added). White v. Home Mutual Ins. Ass’n, 189 Iowa 1051, 179 N. W. 315 (Sup. Ct. 1920). However, in several of the eases that definition was not used .in a context of an issue concerning a “car wash.” For example', in Woods v. Kiersky, 14 S. W. 2d 825 (Texas Comm. App. 1929), the issue was whether a building containing storage for cars on the first floor, with apartments on the second floor, was a “private garage” within the meaning of the zoning ordinance It had nothing to do with “car wash.” In Legum v. Carlin, 168 Md. 191, 177 A. 287 (Ct. App. 1935), the issue was whether an automobile sales room was a public garage as intended within the terms of a covenant against use of land for such use. Red Arrow Garage and Auto Co. v. Carson City, 47 Nev. 473, 225 P. 487 (Sup. Ct. 1924), concerned itself with whether a gasoline service station had to pay separate taxes (a) for its garage license and (b) on sales of gasoline. White v. Home Mutual Ins. Ass’n, supra, construed an insurance policy in context of an issue as to whether a “lean-to” connected with a barn was a “garage” within the meaning of a policy which required that the vehicle be stored in the garage. In other words, none of those cases concerned themselves with that part of the definition of “garage” which concerned itself with “cleaning” of automobiles

On the other hand, the case of Rando v. Bd. of Appeals of Bedford, 348 Mass. 296, 203 N. E. 2d 375 (Sup. Jud. Ct. 1965), did hold that a “car wash” came within the term of “garage” in a zoning ordinance which required approval by the board of appeals in order for garage use to be permitted. There the court was considering the question under a zoning ordinance which prohibited use of a building or premises for injurious, noxious or offensive purposes except for “[fjilling station, garage, or storage of automobiles, if authorized by the Board of Appeals.” The court held that a car wash, since it would tend to congregate automobiles in one place, came within the provision which required approval of the board of appeals. We do not have here any consideration of the possible noxious factors involved in the allowance of a “car wash” such as was involved in the Bedford ordinance.

Another case cited by respondent is Novello v. Zoning Board of Adjustment, 384 Pa. 294, 121 A. 2d 91 (Sup. Ct. 1956). There it was held that a “car wash” was a use customarily accessory and incidental to the operation of a public or commercial garage, repair shop or gas or oil service station, under an ordinance which permitted accessory uses. The instant ordinance has no such provision.

While a general definition of “garage” which includes use for “cleaning” arguably could be construed to include “car wash” within its meaning, we note that Sayreville could well have included “cleaning” in the ordinance’s definition of “public garage” if it intended to do so. Such dictionary definition was available for use but was not incorporated in the ordinance.

We prefer to accept the definition for “garage” as contained in Webster's New International Dictionary (2d ed. 1950), 1033, as follows: “(1) a building for housing automotive vehicles; also a repair shop for such vehicle.” This we conceive to be the ordinary meaning of the word “garage.” A car wash is not such a building.

We come, then, to the specific definition of “public garage” in this ordinance. We note that it is said to be a building or part thereof used for the “storage, care or repair” of motor vehicles, etc. Consistent with the ordinary meaning of garage in the sense that it implies a bailment whereby the owner transfers possession of the vehicle to another, the words “storage” and “repair” necessarily imply such bailment. It is in this association with the words “storage” and “repair” that the word “care” is to be construed. Applying the rule of noscitur a sociis, we conclude that the meaning of “care” involves the concept that the owner transfers his automobile to another to “take care of” it.

We cannot close our eyes to what we know a car wash to be today. It is an imposing mechanical operation which dispenses water and soap-like substances on a car; large brushes advance the cleaning process, and, on occasion, the cars are also waxed. During the whole sequence the car is mechanically propelled through the various steps of the process. There is no “storing.” There is no commitment of the car to the car wash operator to “take care of it,” as suggested by the word “care” in this ordinance. We also know that a modern “car wash” develops lines of traffic sometimes extending to the street off-premises of the car wash installation itself. Thus it entails traffic problems beyond what would ordinarily be within the concept of “storage” or “caring” for a car. Cf. Bern v. Fair Lawn, 65 N. J. Super. 435, 451 (App. Div. 1961). In sum, we conclude that a “car wash” is not within the ordinary meaning of the language of the ordinance. We feel that if the framers of the ordinance intended that a “car wash” operation were to be included within the concept of “caring” for a car, they would have expressly said so, or would have expressly mentioned it as a “permitted use” under Art. XI, f 1 of the ordinance.

Plaintiff also argues that, at the time it was granted a “special use” exception for the construction of a “gasoline filling station,” the ordinance definition of “gasoline filling station” permitted “washing” of motor vehicles and thus would permit an automatic car wash, upon the granting of the permit. Art. Ill, 21 of the ordinance defined “Gasoline Filling Stations” as follows:

Any area of land, including structures thereon, that is used for the sale of gasoline or other motor vehicle fuel, oil, or lubricating substance, and which may include the sale of motor vehicle accessories and facilities for polishing, greasing, washing, spraying, dry cleaning or otherwise cleaning or servicing such motor vehicles.

We conceive that permitting “washing” of motor vehicles is a far cry from permitting what we understand to be an automatic car wash, and again we conclude that if such use were intended to he permitted the ordinance would have clearly said so. It will also he recalled that when plaintiff applied for a gasoline service station permit it also applied for permission to construct an automatic car wash. But then it withdraw its application for the latter and consequently at that time there was no hearing on that issue. It is fair to say that plaintiff then conceded that its gasoline service station permit did not include permission to construct an automatic ear wash. Thus it later applied for the special permit for such use, the denial of which is before ns now.

Eevexsed.


author: Bischoff, J. A. D.

text:
    DOROTHY GASOREK, PLAINTIFF-APPELLANT, v. RUTH GRUBER; THE BOROUGH OF PINE BEACH, NEW JERSEY; STATE OF NEW JERSEY; CHARLES E. FISCHER AND SELMA M. FISCHER, DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued January 29, 1974
    Decided February 8, 1974.

      Before Judges Halpekn, Matthews and Bischoff.

      Mr. Barry L. Fisher argued the cause for appellant (Messrs. Ravin <& Ravin, attorneys).

      Mr. John R. Rutledge, Jr., argued the cause for respondents Borough of Pine Beach and Piseher.
   The opinion of the court was delivered by

Bischoff, J. A. D.

Plaintiff appeals from a judgment of no cause for action. She filed a complaint in Chancery seeking a judgment (a) quieting title in her to certain lands; (b) directing a reconveyance of the lands to her, and (c) in the alternative, seeking damages for losses sustained as a result of alleged wrongful acts of defendants.

The facts are basically undisputed. At a tax sale held December 13, 1930 defendant Borough of Pine Beach acquired title to a certain tax sale certificate identified as Uo. C-148. This certificate was assigned to plaintiff on January 29, 1949 for $77.64, which sum was “in full payment of all taxes and municipal liens and interest thereon as well as costs of tax sale up to and including the date of” the assignment. The tax sale certificate and assignment thereof were recorded February 3, 1949.

In the assignment the lands are described as Block 33, Lot 25. Plaintiff paid taxes on the land up until 1955. Beginning in 1956 tax bills received by plaintiff were for Block 33, Lot 30. Plaintiff contacted the tax collector in person and by letter over the intervening years, calling attention to the error in the tax bills. The borough assured her the error would be corrected but continued to send her bills for Block 33, Lot 30, and plaintiff continued to make the payment requested in accordance with the tax bills sent to her down to the time of trial.

On December 2, 1957 Block 33, Lot 25 was sold for unpaid taxes, and the tax sale certificate was purchased by the borough. A judgment of foreclosure of the equity of redemption obtained by the borough was entered on July 27, 1960. Both the tax sale and the foreclosure were without notice to plaintiff. On August 18, 1970 the borough sold Block 33, Lot 25 to defendants Fischer.

While at one time the borough offered to give plaintiff Block 33, Lot 30 in exchange for Block 33, Lot 25, she declined the offer. Plaintiff owns land adjoining Lot 25 and it has value to her. Lot 30, being small in size and not adjoining any land owned by her, is of doubtful value to her.

Plaintiff seeks a judgment quieting title to Block 33, Lot 25 in her, contending defendants Fischer have not acquired title to the premises. That allegation is based on the fact that the tax billing by the municipality subsequent to 1955 was void and incorrect, and the contention that the tax sale conducted in 1957 for Lot 25 and the subsequent foreclosure of the tax sale certificate without notice to her were void and did not create a valid title in either the borough or the Fischers.

We proceed first to examine plaintiff’s claim of interest in the property in question.

Plaintiff acquired title to the tax sale certificate by assignment on January 29, 1949. A tax sale certificate does not operate to give the purchaser thereof title to the land and does not divest the tax delinquent owners of their title. It merely vests the purchaser of the tax sale certificate with an inchoate right or interest and gives him the right to proceed to foreclose the equity of redemption pursuant to the established statutory scheme. Clark v. Jersey City, 8 N. J. Super. 33, 37 (App. Div. 1950). Municipal liens are statutory in origin and rights arising therefrom are fixed and determined by the statute creating them. Brewer v. Porch, 53 N. J. 167, 173 (1969). One statute regulating the rights of a purchaser of a tax sale certificate is N. J. S. A. 54:5-79 which provides, in part:

The title of a purchaser at a sale shall cease and determine and the certificate of sale shall he void at the ewpiration of 20 years from the date of the sale, unless the purchaser shall, before the expiration of that term, * * * foreclose the rig-lit to redeem it by notice or by a civil action in the nature of a proceeding in equity * * *. [Emphasis added]

Plaintiff took no steps to foreclose the equity of redemption, and more than 20 years has elapsed since she obtained assignment of the tax sale certificate. Thus, it is clear that whatever rights plaintiff had by virtue of the tax sale certificate have expired by the terms of the statute, and the certificate itself is now void.

Defendant borough concedes the situation has created inequities in that it has received over the period of years payment of taxes from plaintiff to which it had no legal right. At oral argument it was suggested for the first time that N. J. S. A. 54:5-114.6 prohibits the municipality from reimbursing plaintiff for the funds paid by her as a result of the municipality’s incorrect billing. That statute provides :

In all eases where the purchaser shall fail to foreclose the equity of redemption and record the final judgment within the time specified hereinabove, the moneys paid by the said purchaser to the municipality shall not be refundable to the purchaser nor shall the said moneys be credited by the tax collector to the credit of the owner of the land,

The borough’s reliance upon that statute is misplaced. The nature of the right acquired by the purchaser of a tax sale certificate varies with the section under which the tax sale was held. The purchaser of a tax sale certificate under a sale held pursuant to N. J. 8. A. 54:5 — 114.1 ei seq. acquires a far more qualified right than one who purchases a certificate at a private sale under N. J. 8. A. 54:5 — 113. Dvorkin v. Dover Tp., 29 N. J. 303, 312 (1959). Plaintiff in this case purchased for the full value of the accrued liens at a sale held pursuant to N. J. 8. A. 54:5-113. Therefore, her rights are not circumscribed by the provisions of N. J. 8. A. 54:5-114.4, N. J. 8. A. 54:5-114.5 or N. J. 8. A. 54: 5-114.6. Dvorkin v. Dover Tp., supra.

We accordingly hold that N. J. 8. A. 54:5 — 114.6 is no bar to the municipality correcting the inequities caused by its mistakes.

Defendant borough having offered in open court through its attorney to return to plaintiff the taxes paid by her as a result of its mistaken assessments, this court will direct that such restitution be made without interest. In all other respects the judgment is affirmed. No costs to either party.


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

text:
    COMMUNICATIONS WORKERS OF AMERICA, AFL-CIO, PLAINTIFF, v. UNION COUNTY WELFARE BOARD ET AL., DEFENDANTS. COMMUNICATIONS WORKERS OF AMERICA, AFL-CIO, PLAINTIFF, v. ESSEX COUNTY WELFARE BOARD ET AL., DEFENDANTS. ESSEX COUNTY WELFARE BOARD ET AL., PLAINTIFFS, v. STATE OF NEW JERSEY, DEPARTMENT OF INSTITUTIONS AND AGENCIES ET AL., DEFENDANTS. PUBLIC EMPLOYEES SUPERVISORS UNION, AFFILIATED WITH LOCAL 723, INTERNATIONAL BROTHERHOOD OF TEAMSTERS ET AL., PLAINTIFF, v. STATE OF NEW JERSEY, DEPARTMENT OF INSTITUTIONS AND AGENCIES ET AL., DEFENDANTS. PASSAIC COUNTY WELFARE BOARD ET AL., PLAINTIFFS, v. ROBERT L. CLIFFORD ET AL., DEFENDANTS.
    Superior Court of New Jersey Appellate Division
    Argued December 11, 1973
    Decided February 13, 1974.

      Before Judges Gaston, Seidman and Demos.

      Mr. Sidney Reitman argued the cause for appellant Communications Workers of America, AFL-CIO (Messrs. Eapelsohn, Lerner, Leuchter, Reitman & Maisel, attorneys).

      Mr. Howard A. Goldberger argued the cause for appellants Public Employees Supervisors Union, Affiliated with Local 723, International Brotherhood of Teamsters; Teamsters Local 97 of the New Jersey, etc., and Employees of the Passaic County Welfare Association (Messrs. Goldberger, Siegel & Finn, attorneys).

      Mr. William H. Sheil argued the cause for appellant Essex County Welfare Board (Mr. Joseph E. Cohen, attorney).

      Mr. Ronald A. Breslow argued the cause for appellant Passaic County Welfare Board.

      Mr. Richard F. Powell, Jr. argued the cause for respondent Union County Welfare Board (Mr. Edmund J. Tuclcer, attorney) .

      Mr. Theodore A. Winard, Assistant Attorney General, argued the cause for respondents Department of Institutions and Agencies, Division of Public Welfare, and Governor’s Office of Employee Relations (Mr. George F. Eugler, Jr., Attorney General of New Jersey, attorney; Mr. Stephen Skill-man, First Assistant Attorney General, of counsel; Ms. Joan W. Murphy, Deputy Attorney General, on the brief).

      Mr-. Joseph J. Triarsi, Assistant County Counsel, filed statement in lieu of brief on behalf of the County of Union {Mr. Ralph V. Mancini, Union County Counsel).

      Mr. John J. Harper filed a brief amicus curiae on behalf of County Welfare Directors Association of New Jersey.
   The opinion of the court was delivered by

Carton, P. J. A. D.

The common problem posed by these consolidated appeals is whether collective bargaining agreements made between duly certified representatives of county welfare board employees and their respective county welfare board employers are subject to approval by the Division of Public Welfare of the State Department of Institutions and Agencies (Division). Specifically challenged here are determinations of the Commissioner disapproving such agreements because they contain salary provisions which exceed state salary guidelines promulgated for welfare board employees. A basic complaint is that such action deprives the employees of the right to bargain collectively concerning wages.

The present controversies have their genesis in the welfare assistance programs established in 1936 pursuant to the Social Security Act. At that time the Department of Institutions and Agencies promulgated a document described as “Plan for Personnel Selection Applicable to all County Welfare Boards.” It included standard classifications for various personnel positions, standard methods for examining and certifying candidates for positions and approving appointments to them. This plan was later promulgated as an administrative release known simply as “Ruling 11.” From time to time changes to the plan have been made in the form of amendments or revisions of the ruling.

The standard compensation plan sets forth the position titles applicable to the various classifications of employees of the county welfare boards, the position title of employees of state governmental agencies whose duties are deemed comparable, and the applicable salary ranges for both county and state employees. The state salary range sets a minimum and maximum salary for each position.

On August 9, 1972 the Union County Welfare Board, after collective negotiations with Communications Workers, signed a proposal extending an agreement entered into in 1970 for a two-year period from January 22, 1972 through December 1973. The 1970 agreement called for the payment by Union County of starting and maximum salaries of certain employee positions above those set forth in the state salary ranges. The proposed agreement for 1972 provided that Union’s previous salary ranges would he maintained and that there would be in addition a $360 across-the-board increase. The proposed agreement also provided for an accelerated schedule of incremental steps within the salary ranges.

The Essex County Welfare Board negotiated a proposed agreement on November 21, 1972 with Communications Workers of America for the two-year period extending from January 22, 1972 to December 1973. Under the proposed agreement all employees would receive a 5.5% across-the-board increase retroactive to January 1, 1972. The agreement also provided that instead of the salary range of §8,203 to $11,073, case workers would receive a normal starting salary of $8,990 with a maximum of $12,014.

On February 1, 1973 the Passaic County Welfare Board submitted its proposed budget for approval. This budget provided for a 4.5% across-the-board, cost-of-living increase, plus one increment to be made to each employee.

By letter, the Department of Institutions and Agencies informed the respective welfare hoards that the proposed agreements would he approved except for the salary provisions. Essentially the welfare hoards were advised that the salary range for all positions must comply with the state range for the same or comparable positions.

Plaintiffs Communications Workers of America, AFL-CIO, Essex County Welfare Board and Public Employees Supervisors Union, etc., filed complaints in the Chancery Division challenging the action of the Commissioner of the Department of Institutions and Agencies with respect to agreements made between the employees’ representatives and the welfare boards of Essex and Union Counties. Named as defendants were the Commissioner, the Acting Director of the Division of Public Welfáre, and the Director of the Governor’s Office of Employees Relations. In another proceeding, plaintiff Passaic County Welfare Board filed an appeal to this court from the Commissioner’s disapproval of the proposed agreement between the board and its employees. The Chancery Division actions were transferred to this court and consolidated with the appeal taken by the Passaic County Welfare Board.

Plaintiff Unions charge that the state agency’s action interferes with the right of collective bargaining guaranteed to public employees under the New Jersey Constitution (Art. I, par. 19) and seek to enjoin such interference. The county welfare boards align themselves with the unions in opposition to the State’s contention that the Commissioner of Institutions and Agencies has exclusive power under N. J. 8. A. 44:7-6, the Federal Social Security Act, and federal regulations to promulgate a standard compensation plan governing the salaries to be paid welfare board employees. The County Welfare Directors Association of New Jersey has intervened as amicus curiae and filed a brief in support of the position taken by the unions and the welfare boards.

The arguments advanced by the unions and the welfare boards are syllogistic in form: public employees are guaranteed the constitutional right to organize and present their grievances through representatives of their own choosing. Under the terms of the New Jersey Employer-Employee Relations Act, N. J. S. A. 34:13A-1 ei seq., adopted to implement this constitutional guarantee, when an agreement as to the terms and conditions of employment is reached it shall be embodied in writing and signed by the authorized representative of the public employer and the employee representative, N. J. 8. A. 34:13A-5.3. The statute defines “public employer” to include any political subdivision of the State or any authority, commission or board, or any branch or agency of the public service, N. J. 8. A. 34:13A-3(c). Since county welfare boards are corporate entities (see N. J. S. A. 44:7-7) and are authorized to appoint necessary employees (see N. J. 8. A. 44:7-9) and to determine their compensation within the limits of the funds made available for that purpose, they as public employers are required to bargain collectively with employees’ representatives and to enter into agreements implementing such bargaining.

The unions and the county welfare boards also point to the provisions of N. J. 8. A. 44:1-27 and N. J. 8. A. 44:4-35, which authorize the county welfare board to fix the salaries of officers and employees within the limitations of the appropriation made by the board of chosen freeholders. As a consequence, they argue, the Division has no right to control the rate of pay of welfare board employees and that no such right is conferred upon it by federal provisions or state statute or regulations.

The State’s position is that it must have exclusive power to enforce standard salary schedules for welfare board employees by reason of its participation in the various federal welfare assistance programs. It insists that it has the power to prescribe standards with respect to salaries of welfare boards without regard to any rights of collective bargaining created by the Public Employer-Employee Eelations Act. The power to prescribe salary standards stems from the statutes and regulations adopted to implement state welfare programs. The State relies upon N. J. 8. A. 44:7-6 as specifically supporting its claim of statutory authority to adopt regulations designed to insure that federal aid standards are adhered to.

The initial concern, then, is whether the. Legislature, in. order to implement the federal assistance programs, either expressly or by necessary implication, granted authorization to the Department of Institutions and Agencies to regulate the salaries of county welfare board employees, that authorization antedating the adoption of the Employer-Employee Relations Act.

Resolution of this question of statutory interpretation necessarily entails a brief review of pertinent federal statutes and regulations. The several federal welfare assistance programs here under review are extensions of and established pursuant to the Federal Social Security Act. See Old Age Assistance Program (42 U. S. C. A. § 301 ei seq.), Aid to Families with Dependent Children (42 U. S. C. A. § 601 et seq.), Aid to the Blind (42 U. S. C. A. § 1201 et seq.), and Aid to the Permanently and Totally Disabled (42 U. S. C. A. § 1351 et seq.).

The Department of Health, Education and Welfare (HEW) is designated as the federal agency responsible for the overall supervision of federally funded welfare programs within the various states, 42 U. S. C. A. § 602. Among other things, HEW is directed to assure that state plans of social assistance conform to the requirements of the Social Security Act, 42 U. S. C. A. § 1316(a)(1). Submission of a state plan to HEW and approval bjr that agency is prerequisite to federal financial participation in state welfare programs, 42 U. S. C. A. §§ 301, 601, 1201, 1351. A “state plan” consists of all the statutes and regulations which create and provide for the administration of programs of assistance.

As a precondition for receipt of federal grants, the State is responsible for certifying to HEW that requirements of the state plan have been fulfilled in the administration of the welfare programs. See 42 U. S. C. A. §§ 602(a), 604(a), 1202(a), 1352(a).

The Social Security Act requires that a state plan must, among other things, provide that it shall be in effect in all political subdivisions of the State and, if administered by such subdivisions, be mandatory upon them; must provide for financial participation by the State; and must provide for the establishment or designation of a single state agency to administer the plan, or alternately, for the establishment or designation of a single state agency to supervise the administration of the plan. 42 U. 8. G. A. § 302(a) (1 — 5) ; and seo 42 U. 8. O. A. §§ 1202(a), 1352(a), 1396a(a)(l) et seq. See also 45 GFR 205.100(a)(2).

The same section of the Social Security Act contains the mandate that a state plan must

* * * provide (A) such methods of administration (including methods relating to the establishment and maintenance of personnel standards on a merit basis, except that the Secretary [of HIDW] shall exercise no authority with respect to the selection, tenure of office, and compensation of any individual employee in accordance with such methods) as are found by the Secretary to be necessary for the proper and efficient operation of the plan * * *. [42 U. S. C. A., §302(a) (5) (A) ; emphasis supplied]

HEW has interpreted this statutory requirement to mean that a state must provide, as part of its “state plan,” that

A plan of compensation for all classes of positions will be established and maintained on a current basis. The plan will include salary rates adjusted to the responsibility and difficulty of the work and will take into account the prevailing compensation for comparable positions in the recruiting areas and in other agencies of the government and other relevant factors. It will provide for salary advancement for full-time permanent employees based upon quality and length of service and for other salary adjustments. [42 CFR 70.8(a) ; emphasis supplied].

It is argued that the provision in the Social Security Act enjoining HEW from exercising authority concerning salary determinations confirms the unions’ contention and that of the county boards that the state agency was never intended to he other than a mere conduit of federal welfare funds, and that it should have no viable role in the wage determinations of the county board. But it is not our function to reconcile the apparent incongruity between the grant of authority contained in the federal statute and the directive which purports to implement it. The regulation which HEW has promulgated pursuant to the statute and that agency’s interpretation of its own regulation constitute a mandate which the state agency may not ignore.

In this connection we note that the regulation is one of many years standing. As a practical matter, the state agency has no alternative to compliance with the federal regulation strictly in accordance with its terms. Otherwise the State’s share of federal assistance may be jeopardized for failure of the state plan to comply with federal requirements. Hausman v. Dept. of Institutions and Agencies, 124 N. J. Super. 139 (App. Div. 1974), aff’d 64 N. J. 202 (1974).

In specifically referring to the New Jersey agencjr’s function in administering federal public assistance programs at the county level, HEW has informed the state agency that it is responsible for all program aspects and for all funds expended, whether they originate from federal, state or local funds. Although the state agency may leave matters of local compensation to local government control, it has authority to retain control of the local compensation plans when it so elects. See 45 CFR 205.100(a) (2). HEW insists that whatever choice the State makes with respect to administering local compensation plans, the State remains responsible to the Federal Government, a relationship that the local government or political subdivision may not abrogate.

It is against this backdrop of federal legislation that we consider this State’s action to implement the Federal Social Security program and the administrative procedures taken to effectuate it. The State’s principal reliance in support of its claim to the right to control salaries at the local level is upon N. J. S. A. 44:7-6. This statute was adopted in 1936 shortly after the inception of the original Federal Old Age Assistance Program. Among other things, it provided:

Said division [later the Commissioner of Institutions and Agencies] shall, in co-operation and association with the Civil Service Commission, require adequate personnel standards for all county welfare boards, as county bureaus of old age assistance, in the manner following: The division shall, by appropriate rule and regulation, establish and maintain standards appropriate to a modern personnel system on a merit basis for all positions and for the application of correct business principles in the creation and abolition of positions, the classification of authorized positions on the basis of the duties and responsibilities of the incumbents, the development, adoption and the administration of equitable compensation schedules for each class of positions, the selection, certification, appointment, regulation and tenure of persons holding such positions, and such other standards for a merit system of personnel administration as may lawfully be requiied by the Federal Social Security Board for approval of a State public-assistance plan. * * All rules and regulations made by the State division under this chapter shall be binding upon the county welfare boards, as county bureaus of old age assistance. [Emphasis supplied!

We deem it significant that N. J. 8. A. 44:7-6 is not confined to a general grant of authority designed to carry out the federal assistance program, but represents a command to establish and maintain a modern personnel system in this State on a merit basis for all positions, with the classification of such positions on the basis of the duties and responsibilities of the incumbents. The specific directive charging the Commissioner with the development, adoption and administration of equitable compensation schedules for each class of positions and such other standards for a merit system of personnel administration as may lawfully be required, evinces a clear intention that this responsibility should include the regulation of salaries of local welfare boards.

This interpretation finds strong support in the practical construction and long-term application given the regulation promulgated by the Commissioner. See In re Revision of Rates by Plainfield-Union Water Co., 57 N. J. Super. 158, 177 (App. Div. 1959). Ruling 11 and various revisions thereof have for several decades prescribed detailed salary ranges for each employment position in the county boards. The language of that regulation leaves no doubt of the agency’s claimed right to control the compensation of board employees and serves as an indicium that the county boards had limited power in that area. See In re Revision of Rates by Plainfield-Union Water Co., id. The county boards have heretofore implicitly recognized the Commissioner’s supervisory xight by submitting salary agreements between them and their employees to the state agency for approval. Indeed, the agreements involved in this ease bear the caveat that they are “subject to approval” of the state agency. The fact that on a few occasions the state agency may have approved salary agreements which did not fully comply with the state guidelines does not lessen the significance of this long-continued administrative practice. The controlling feature remains that the county boards have consistently recognized the state agency’s right to exercise supervisory control of board employee salaries.

We conclude, therefore, that the Commissioner was granted statutory authority to prescribe minimum and maximum salary ranges for county welfare board employees and that the power conferred upon such boards by virtue of N. J. 8. A. 44:1-27 and N. J. 8. A. 44:4-35 to fix and determine the salaries of its officers and employees is subject to the authority granted to the Commissioner.

This brings us to consideration of the impact of the Employer-Employee Relations Act upon the respective powers of the Commissioner and the county boards relating to salary determinations. In 1968 the Legislature adopted the Employer-Employee Relations Act, L. 1968, c. 303, which implements the right granted under Art. I, par. 19 of the New Jersey Constitution to public employees “to organize, [to present] * * * their grievances and proposals through representatives of their own choosing * * *.”

Under the statute public employees are given the right to form, join and assist any employee organization, and to select representatives to conduct on their behalf “collective negotiation concerning the terms and conditions of employment * * N. J. 8. A. 34:13A — 5.3. The statute also enjoins the majority representatives of public employees and designated representatives of public employers to “meet at reasonable times and negotiate in good faith with respect to grievances and terms and conditions of employment.” Id.

The rights afforded to public employees under the Constitution are of a more limited character than those available to employees in the private sector and do not extend to every public employment relationship. See Lullo v. International Ass’n of Fire Fighters, 55 N. J. 409, 440 (1970). The implementing Employer-Employee Eolations Act itself contains a broad reservation, to wit:

Nothing- in this act shall be construed to annul or modify, or to preclude the renewal or continuation of any agreement heretofore entered into between any public employer and any employee organization, nor shall any provision hereof annul or modify any statute or statutes of this State. [N. J. S. A. 34:13A-8.1; emphasis supplied]

In interpreting this act our Supreme Court has also pointed out inherent limitations on the collective bargaining rights granted to employees:

It is crystal clear that in using the term “collective negotiations” the Legislature intended to recognize inherent limitations on the bargaining power of p^lbUo employer and employee. The reservation in section 7 of the Civil Service rights of the individual employee is a specific indication of that fact. The lawmakers were sensitive that Civil Service statutes in many areas provide for competitive employment examinations, eligible lists, fixed salary lists, for promotion, transfer, reinstatement and removal, and require all employees to be dealt with on the same basis. And undoubtedly they were conscious also that public agencies, departments, etc., cannot abdicate or bargain away their continuing legislative or executive obligations or discretion. Consequently, absent some further changes in pertinent statutes public employees may not be able to make binding contractual commitments relating- to ccriain subjects. * * * In our judgment, therefore, the authorization for “collective negotiations” in the 1968 Act was designed to make Icnoivn that there are salient differences between public and private employment relations which necessarily affect the characteristics of collective bargaining in the public sector. [Lullo v. Intern. Assoc. of Fire Fighters, 55 N. J. 409, 440 (1970) ; cilations omitted, emphasis supplied]

In Porcelli v. Titus, 108 N. J. Super. 301 (App. Div. 1969) the court recognized that the provisions of the act requiring the parties to engage in collective negotiations and to embody the products of such negotiations in a signed agreement did not oblige school boards to negotiate away their obligations and powers given them under the statute providing for the maintenance of a thorough and efficient system of public education. In like vein, see, Dunellen Bd. of Ed. v. Dunellen Ed. Ass’n, 64 N. J. 17 (1973).

Our concern is to reconcile the provisions of the statutes relating to the administration of federal welfare assistance with those of the Employer-Employee Relations Act. See Englewood Bd. of Ed. v. Englewood Teachers, 64 N. J. 1, 7 (1973); Dunellen Bd. of Ed. v. Dunellen Ed. Ass’n, supra, 64 N. J. at 25. Thus, our determination that the Commissioner has authority to prescribe guidelines for the compensation to be paid board employees does not mean that local welfare boards have no function or that the board employees are without any rights afforded other public employees.

Recognition must be given to the constitutional guarantee that employees may organize and present their grievances and proposals through representatives of their own choosing. Furthermore, except to the extent that the provisions of the Employer-Employee Relations Act are inconsistent with the power granted to the Commissioner, employees of welfare boards are entitled to the same statutory benefits conferred on other employees under that act.

Thus, the county boards as public employers have the duty of negotiating in good faith with representatives of their employees concerning matters which directly affect the work and welfare of those employees. Lullo v. International Ass’n of Fire Fighters, supra, 55 N. J. at 416; Dunellen Bd. of Ed. v. Dunellen Ed. Ass’n, supra. Under the scheme envisioned by the Employer-Employee Relations Act such negotiations would ordinarily include the question of compensation, an issue which goes to the heart of labor relations. See Englewood Bd. of Ed., supra, 64 N. J. at 6-7.

The dilemma arises because the county boards, in their ■negotiations with their employees, are limited by the Commissioner’s power to prescribe salary ranges on a statewide basis for all county board employees.

As a consequence, the complaint of the employee representatives is that their right of negotiation is an empty one because no welfare board is empowered to enter into wage agreements exceeding the maximum ranges fixed, by the Commissioner. They point out that, on the other hand, since the Commissioner is not technically the employer, he has no legislative mandate to negotiate with the representatives of any board’s employees concerning wages and conditions of employment in a particular county which would justify departure from the state norm. Cf. Burlington Cty. Col. Fac. Ass’n v. Bd. of Trustees, 64 N. J. 10, 14 (1973).

This problem could, of course, be readily resolved by the Legislature through amendment of the statute. However, in the absence of such legislative action, we are obliged to continue to make a conscientious effort to effectuate the constitutional and legislative objective of the Employer-Employee Relations Act without frustrating the legislative goals of the welfare statutes. Cf. Dunellen Bd. of Ed., supra.

It is particularly important that we do so in the present case; otherwise employees of local welfare boards may needlessly be deprived of rights accorded under the Constiiution as a matter of course to all other public employees. In this connection, the sole reason for the predicament in which the welfare board employees are placed is the vicarious circumstance that New Jersey has elected not to administer federally-assisted welfare programs at the state level and has confided such administration to the local boards. The mere fact that the State has chosen to adopt a hybrid system of administration under which it retains supervisory control, but leaves the local agency the direct responsibility for administration, should not be a reason for depriving the welfare board employees of rights which would otherwise obtain.

During the pendency of this appeal the Commissioner promulgated revised Ruling 11, dated September 20, 1973, which became effective immediately, adopting a statewide compensation schedule fixing mandatory guidelines for salaries of all county welfare board employees. The substance of the employees’ grievance is that the inflexible compensation schedule thus adopted fails to give recognition to factors peculiar to certain counties and which justify different salaries and rates of payment. They maintain that they have been effectively precluded from presenting their grievances or bargaining in good faith with their employers because the maximum salary ranges contained in the compensation schedules were adopted without notice or hearing.

The employees assert specifically that the regulation fails to give recognition to the difference in the cost of living in various geographical areas throughout the State, the difference in work loads in various counties, the differences in monetary resources at the disposal of certain counties, and the differences in problems of recruiting and retaining personnel experienced by some boards — particularly Essex and Union — because their salaries had fallen below those ■of other counties’ employees who perform comparable work.

We observe that recognition of such factors in the state compensation plan is entirely consistent with .the requirements in HEW’s directive that such plans shall “include salary rates adjusted to the responsibility and difficulty of the work and will take into account the prevailing compensation for comparable positions in the recruiting areas and in other agencies of the government and in other factors * * 45 GF.B 70.8.

We are persuaded that the substance of the constitutional rights guaranteed public employees can be secured to county welfare board employees in the situation before us and without any significant interference with the exercise of the Commissioner’s responsibilities under the welfare'program, i. e.j by requiring that a hearing be conducted before the compensation schedules contained in the state plan shall become effective. Such hearing will afford the representatives of these employees an opportunity to present their grievances and to establish their claim that the compensation schedules contained in the regulation already promulgated are unreasonable or arbitrary for failure to take into consideration factors which should have received recognition.

We are not impressed by the State’s objection that there-is no need for hearings and findings of fact in connection with the promulgation of a statewide compensation plan for county welfare board employees. The State’s argument seems to be grounded upon its claim that the compensation plan promulgated by the Commissioner is tied to the more comprehensive plan developed by the Civil Service Department, and that the Commissioner used the salary ranges which were developed by the Givil Service Department only after careful evaluation of all titles and classifications based upon a report made for the State by a private consulting firm— the so-called Hay Report.

The flaw in this argument is that the Hay Report and the evaluations made pursuant to it are confined to personnel in the state service. See N. J. S. A. 52:14-17.50; and see, In re Senior Appeals, 60 N. J. 356 (1972). It may be, as-the State contends, that the compensation plan developed for all such state employees was arrived at in the light of the peculiar problems of each department of State Government. However, it does not necessarily follow that a plan made for state employees adequately takes into consideration factors which may require differential treatment between the employees of the various boards.

The collective negotiation rights of public employees in state service are adequately preserved because the State, as the employer, has the duty of bargaining in good faith with their representatives. Employees of county welfare boards, on the other hand, are deprived of those rights insofar as they relate to their salaries because the Commissioner, although exercising control over such salaries, denies any obligation to negotiate with them or to give consideration to their special interests.

Our determination makes it unnecessary to consider the further argument that the action of the Governor’s Office of Employees Relations infringed upon the constitutional rights of negotiation guaranteed to the county welfare board employees. Cf. Ass’n of N. J. State Col. Fac. v. Bd. of Higher Ed., 112 N. J. Super. 237 (Law Div 1970).

The matter is remanded to the Commissioner for the purpose of conducting a hearing in accordance herewith and to make appropriate findings and determinations. In view of the public interest involved, the proceeding should be expedited.

We do not retain jurisdiction.


author: Pee Cueiam.

text:
    STATE OF NEW JERSEY, PLAINTIFF-APPELLANT, v. INGEBORG M. SIEBERT, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued January 29, 1974
    Decided February 8, 1974.

      Before Judges Halpern, Matthews and Bischoee.

      Mr. Russell M. Cottrell, Assistant Prosecutor, argued the cause for appellant (Mr. James M. Coleman, Jr., Monmouth County Prosecutor, attorney; Mr. Paul D. Moroney, Assistant Prosecutor, on the brief).

      Mr. Robert A. Coogan argued the cause for respondent (Messrs. Baling, Moore, O’Marai & Coogan, attorneys).
   Pee Cueiam.

Defendant was charged with working as a clerk for an illegal lottery, contrary to N. J. S. A. 2AA21-3(a), and the possession of lottery slips and paraphernalia, contrary to N. J. S. A. 2A:121-3(b). The first count, in addition to charging employment in a lottery operation, included the allegation that defendant ccknowingly and unlawfully did possess divers papers, documents, slips and memoranda pertaining to the business of lottery * * The second count charged simple possession of lottery slips and paraphernalia. The trial judge, in his instructions to the jury, noted the possession element of the first count and directed the jury to treat it as surplusage.

Defendant was acquitted of the first count, and the jury was unable to reach a verdict on the second count. On the day fixed for the retrial of the possession charge, defendant moved to dismiss the indictment on the ground of double jeopardy. The trial judge, believing that the indictment had been submitted to the jury, found the former trial judge’s limiting instructions to have been insufficient and granted the motion to dismiss. The court reporter who recorded the first trial subsequently executed an affidavit stating that the indictment had not been submitted to the jury. The State now appeals the grant of the motion to dismiss the indictment.

Separate and distinct offenses may not be joined in a single count of an indictment. R. 3:7-6; State v. Weleck, 10 N. J. 355, 375 (1952); State v. Torrance, 41 N. J. Super. 445, 452-453 (App. Div. 1956), cert. den. 23 N. J. 59 (1956); State v. Bolitho, 103 N. J. L. 246, 263 (S. Ct. 1927), aff’d 104 N. J. L. 446 (E. & A. 1927). Duplicity in an indictment, however, is not necessarily fatal. Provided that substantial rights of defendant are not impaired, an amendment to strike all but one of the offenses will cure the indictment. B. 3:7-4; Weleck, above, 10 N. J. at 375; Torrance, above, 41 N. J. Super. at 453. The fact of joinder of two separate offenses, therefore, is not determinative. Appellant’s reliance on State v. Daly, 38 N. J. 1 (1962) ; State v. Silverstein, 41 N. J. 203 (1963), and R. 3:7-3, is misplaced. Surplusage is the inclusion of additional language, cumulative in form, describing additional means or circumstances by which the offense was committed; it is not equivalent to duplicity.

Our examination of the record reveals that the parties and the trial judge conducted the trial as if only one offense was charged in the first count. Further, we find that the trial judge’s instruction to the jury and the absence of the indictment during the jury’s deliberations do not warrant defendant to claim a defect in the indictment at the time of the second trial. We find that the facts do not support a conclusion that the jury acquitted defendant of two offenses at the conclusion of the first trial.

Engaging as a clerk in a lottery operation and pos^session of lottery slips are separate and distinct offenses. An examination of N. J. S. A. 2A:121-3 indicates a scheme to prohibit all phases of a lottery operation. Although the charges arose from a single set of facts — presence in a room in which an adding machine and lottery slips are present — possession of lottery slips is not dependent on proof that the person is knowingly engaged in clerical operations in furtherance of a lottery. Possession requires an intent to exercise control -over an object and the effective realization of that attitude. This attitude may be realized if the person is in actual control of the material or has the present ability to exercise control to the exclusion of others. State v. Labato, 7 N. J. 137, 148 (1951); State v. Brown, 67 N. J. Super. 450 (App. Div. 1961). The existence of clerical duties, such as tabulating and/or collating wagers, is not an integral part of the offense of possession.

The “same evidence” test is of no help to defendant. As explained in Lobato, the emphasis is placed on whether the same evidence is utilized to prove the same fact. There, the ultimate. fact litigated in both prosecutions was possession. Here, it appears that virtually the same evidence was employed to prove employment and possession.

Reversed and remanded for trial.


author: Meauor, J. A. D.

text:
    LEOPOLDO BONILLA, APPELLANT, v. NICHOLAS D. HEIL, CHAIRMAN NEW JERSEY STATE PAROLE BOARD, RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued December 3, 1973
    Decided February 14, 1974.

      Before Judges Handles, Meanor and Kole.

      Mr. Gerald D. Miller argued the cause for appellant (Messrs. Miller, FLochman, Meyerson and Miller, attorneys).

      Mr. Robert FS. Poplcin, Deputy Attorney General, argued the cause for respondent (Mr. George F.'Kugler, Jr., Attorney General, attorney).

      Our inquiry to the Department of Institutions and Agencies brought forth the statement that Mercer and Middlesex Counties have workhouses and that Bergen has a jail annex which is considered a workhouse. We. understand that the practice in Bergen County is to sentence to county institutions only for terms less than one year.

   The opinion of the court was delivered by

Meauor, J. A. D.

Following pleas of guilty, Leopoldo Bonilla was, on May 3, 1973, sentenced to concurrent terms of 12 months in the Hudson County Penitentiary for atrocious assault and battery, N. J. 8. A. 2A:90-1, and possession of a dangerous weapon, N. J. 8. A. 2A:151-41. His attorneys requested the State Parole Board to cofisider Mr. Bonilla for parole upon the expiration of one-third of his sentence. The Parole Board declined the request by letter dated July 9, 1973 on the ground that a county penitentiary inmate under a 12-month sentence is not eligible for parole: Conceiving this denial to be final state agency action from which an appeal will lie, R. 2:2-3 (a), Bonilla filed this appeal. The precise issue centers upon his contention that denial of parole eligibility to him as a county penitentiary inmate while extending parole to those confined within the state prison system constitutes a deprivation of equal protection.

New Jersey’s system for incarceration and parole of the adult offender is an intricate one that has grown historically and not completely logically. A court about to sentence an adult - convicted of crime • — • a misdemeanor or high misdemeanor and not a petty offense ■ — • may have alternatives.

A male defendant under age 30, not previously a state prison' inmate, convicted of a crime punishable by a sentence to State Prison, may instead be sentenced to an indetermínate term at the Youth Correctional Institution Complex. N. J. B. A. 30:4-147. Parole from such sentences is under the control of the Board of Trustees of that institution, N. J. 8. A. 30:4-148; 30:4-106; 30:4-l.l(n), and such release may occur at any time.

Adult female offenders may be sentenced to the Correctional Institution for Women if convicted of a crime for which a State Prison sentence could be imposed if the offender were male. N. J. 8. A. SO :4-154. N. J. 8. A. SO :4r~ 155 requires that all sentences to the Correctional Institution for Women be for an indeterminate term except following convictions for murder or manslaughter, for which minimum and maximum terms are imposed as in the case of males. The statutory plan has been altered by State v. Chambers, 63 N. J. 287 (1973), in order to afford sentencing equality between men and women. By virtue of that decision, females age 30 and over must be given minimum-maximum terms if sentenced to the Correctional Institution for Women, and if under 30 the sentencing court must determine whether defendant, if male, would be given an indeterminate reformatory term or a minimum-maximum State prison sentence and enter judgment accordingly. Before State v. Chambers, supra, all parole from the Correctional Institution for Women, except for those sentenced for murder or manslaughter, rested with its Board of Trustees. N. J. 8. A. 30:4-l.l(n). Parole power continues in the Board of Trustees as to indeterminate terms, but parole for all women sentenced to minimum-maximum terms now resides with the State Parole Board, N. J. S. A. 30 :4 — 123.5. Parole of a female prisoner sentenced fo an indeterminate term may take place at any time.

All sentences, except for life, to the New Jersey State Prison must carry a minimum and a maximum term. The minimum must be at least one year and the maximum may not be in excess of the maximum prescribed by law for the offense in question. N. J. 8. A. 2A:164-17. Parole for all prisoners, male and female, confined under minimum-maximum terms is within the jurisdiction of the State Parole Board. N. J. S. A. 30 :A-123.5.

The earliest eligibility for parole by the State Parole Board occurs upon expiration of the minimum or one-third of the maximum sentence, whichever arrives first. Those are adjusted terms, since work and good behavior credits are given thus enhancing parole eligibility. N. J. 8. A. 30:4-123.10. This parole eligibility is available only to first offenders. Second offenders are not eligible until they have served an adjusted one-half of the maximum; third offenders must serve two-thirds of the maximum, and fourth offenders four-fifths before parole eligibility occurs. N. J. 8. A. 30:4-123.12. Under this statute a multiple offender is one who has previously been sentenced and confined to a penal institution as defined therein as follows:

As used in this section “penal institution” means and includes the New Jersey State Prison and any other State penal or correctional institution in this State to which offenders are sentenced for fixed terms or fixed minimum and maximum terms and other institutions of like character under the jurisdiction of the United States or of a State or States other than this State.

The only “fixed term” sentence permitted within the state prison system is a life sentence. N. J. 8. A. 2A:164-17. See State v. Hampton, 61 N. J. 250, 276 (1972).

New Jersey’s penal system for adults also includes three different institutions under county aegis. These are jails, workhouses and penitentiaries. Each of the 21 counties has a jail. A few have workhouses. Essex and Hudson have no workhouses but are the only counties to have penitentiaries.

Sentences to these institutions are for a definite term without a minimum and maximum. N. J. 8. A. 2A :164-15 requires that all sentences for a term less than one year be to the county jail, workhouse or penitentiary. However, in first class counties (Essex, Hudson and Bergen), county jail sentences may not exceed six months. In other counties, jail sentences must be for less than one year.

Jn counties having a penitentiary, sentences from one year to 18 months must be to that institution, unless the offender has previously served in State Prison in which event the court may choose the prison rather than the county penitentiary. Eighteen months is the maximum sentence permitted to a county penitentiary. N. J. S. A. 2A ¡164-15.

The maximum workhouse sentence is 18 months. The sentencing court, in its discretion, may utilize the county workhouse as a place of confinement rather than State Prison. N. J. S. A. 2A:164-15.

A sentencing technique, unique to county institutions, N. J. S. A. 2A:164-16, is the split sentence. The court may require that a portion of the sentence be served in custody, and the balance on probation. Any available work and behavior credits are granted against the custodial portion of the sentence.

Sentence credit for good behavior in the State Prison is governed by the schedule contained in N. J. 8. A. 30 :4-140. By its terms this statute also governs in the case of all females sentenced to minimum-maximum terms. Good behavior credit for county jail and penitentiary inmates is controlled by N. J. 8. A. 2A:164-24. It will be noted that slightly greater credits for proper deportment are granted within the state prison system. Strangely, our statutes contain no provision for the grant of deportment credits to those confined in county workhouses.

' Work credits are available in all institutions. On the state level the governing statute is N. J. S. A. 30 :A-92, and as to all county penal institutions see N. J. 8. A. 30:8-28.1. With the exception of additional credits that may be earned by trustworthy inmates confined to minimum security institutions on the state level, the work credits provided by these two statutes are identical.

Work release programs are provided for inmates on both state and county levels. State work release is provided for in N. J. 8. A. 30:4-91.1 et seq. Work release from all county penal institutions is covered by N. J. 8. A. 30 :8-44 et seq. The inmate remains confined except for the hours of employment. N. J. 8. A. 30:8-48.

There are two statutory provisions dealing with parole from county penal institutions. N. J. 8. A. 30:4-123.35, the statute under which appellant applied, governs parole from a county penitentiary. It grants to a county penitentiary inmate sentenced to more than a year the right to apply to the State Parole Board for parole after serving one year of his or her sentence. If parole is granted, supervision is by the county probation department. There is no provision granting any parole eligibility to a county workhouse inmate.

The only other statutory mention of parole from a county penal institution is contained in N. J. 8. A. 30:8-28. This is part of a scheme for the employment of county jail prisoners set forth in N. J. 8. A. 30:8-25 to 28. These statutes derive from L. 1917, c. 271, which is entitled “An Act to provide for the employment of inmates of county jails, and to provide payments therefor.” It is apparent from a reading of this act that the parole provided for by N. J. S. A. 30:8-28 was parole for the purpose of prisoner employment. This statute permits a county court, in its discretion and upon recommendation of the sheriff, to parole a county jail prisoner to the custody of the county probation officer “or any other fit person.” This statute cannot be read in isolation, and the entire act limits the parole power granted as one to be exercised only in the event of outside prisoner employment, with, his wages being paid not to the prisoner but to the parole agent to be disbursed by him for the benefit of the prisoner and his dependents. This act is a holdover from the discredited practice of farming out convict labor. It has been supplanted by the modern work release program to which we have referred above.

Utilization of N. J. S. A. 80:8-28 would raise a serious constitutional issue by providing parole for some but not all county inmates. We need not, however, pass upon the question whether N. J. 8. A. 30:8-28 should be invalidated in the interest of sustaining the present parole system. In May 1963 a directive was issued by the Chief Justice ordering that county judges refuse to entertain applications under N. J. 8. A. 30:8-28. This directive is published as Item 14, April 1965 Summary of Administrative Directives, issued by the Administrative Director of the Courts. Thus, we may disregard N. J. 8. A. 30 :8-28 and any potential impact its vitality might have upon the validity of New Jersey’s present parole plan.

The State challenges the standing of appellant to assert the issues he brings here. The argument is founded upon the thought that since Bonilla is in no way affected by the affirmative action of the parole statutes, he may not challenge their validity. However, the relief sought is not invalidation of the parole system, but its expansion to cover him.. He says, in effect, that he has been unconstitutionally excluded from its operation.

We think Bonilla has standing to assert the issue that he has been unconstitutionally excluded from the class of New Jersey prisoners granted parole eligibility. Elsewhere equal protection attacks have been heard by one contending that there was arbitrary exclusion from the statutorily affected class. Washington National Ins. Co. v. Board of Review, 1 N. J. 545 (1949). See also, Nelson v. So. Brunswick Planning Board, 84 N. J. Super. 265, 276-277 (App. Div. 1964).

Gone are the days when claims of invidious discrimination in the parole process could be given the short answer that parole is but an act of grace on the part of the State. Morrissey v. Brewer, 408 U. S. 471, 92 S. Ct. 2593, 33 L. Ed. 2d 484 (1972); Gagnon v. Scarpelli, 411 U. S. 778, 782 n. 4, 93 S. Ct. 1756, 36 L. Ed. 2d 656 (1973). See also, Monks v. N. J. State Parole Board, 58 N. J. 238 (1971), and Beckworth v. N. J. State Parole Bd., 62 N. J. 348 (1973).

Classification of prisoners for parole eligibility purposes is not inherently suspect like classifications based on race (Loving v. Virginia, 388 U. S. 1, 87 S. Ct. 1817, 18 L. Ed. 2d 1010 (1967)), on alienage (In re Griffiths, 413 U. S. 717, 93 S. Ct. 2851, 37 L. Ed. 2d 910 (1973)), or perhaps on sex (Frontiero v. Richardson, 411 U. S. 677, 93 S. Ct. 1764, 36 L. Ed. 2d 583 (1973)). McGinnis v. Royster, 410 U. S. 263, 93 S. Ct. 1055, 35 L. Ed. 2d 282 (1973). Therefore, such classifications "require only some rational basis to sustain them.” McGinnis, supra, 410 U. S. at 270, 93 S. Ct. at 1059, and cases therein cited. Thus, we must examine our parole eligibility classifications to see if the various categories into which prisoners are cast for such eligiblity are founded upon some rational basis.

Prom the description we have set forth earlier it can be seen that New Jersey has divided its offenders into different classes, affording no parole eligibility to some and differing parole to others. The classification falls into the following categories:

1. Criminal offenders sentenced to the State Prison or to the Correctional Institution for Women under minimum-maximum terms. The minimum must be at least one year and the maximum may be no more than the maximum provided for the offense in question. Parole eligibility for a first offender arises upon the completion of the minimum term or one-third of the maximum, whichever occurs first, and both terms for parole purposes are adjusted to reflect deportment and work credits. Subsequent offenders achieve parole eligibility following completion of adjusted larger fractions of their maximum terms, as we have set forth above in our discussion of N. J. S. A. 30:¿L-123.10. Parole of this class of prisoners is controlled by the State Parole Board.

2. Criminal offenders given indeterminate terms. By statute indeterminate terms can only be given to males under 30 who have not previously been confined under a minimum-maximum term and must be given all women, except those convicted of murder or manslaughter. We have previously set forth the change in female sentencing required by State v. Chambers, supra. Parole of this class of offenders is vested in the Board of Trustees of the institution to which confined, and parole eligibility arises immediately upon arrival there.

3. Criminal offenders sentenced to county penitentiaries for a term in excess of one year. These inmates may apply to the State Parole Board for parole after serving one year of their term. We construe the word “year” set forth in N. J. S. A. 30:4-123.35 to mean a calendar year adjusted by any available and earned deportment and work credits, to the end that one sentenced to a county penitentiary for more than a year shall be eligible for parole release at the same time he would be released if sentenced to a 3rear.

4. Criminal offenders sentenced to a county workhouse for a term greater than a year. These inmates have no parole eligibility, nor is there any specific statutory provision for providing them with deportment credits.

5. Criminal offenders confined in county penitentiaries, jails and workhouses for terms of a year or less and petty offenders confined in the same institutions under terms of six months or less These prisoners have no parole eligibility,' save for county jail inmates under N. J. 8. A. 30:8-28, which should not be used. All institutions may afford work credits, and county jails and penitentiaries have specific authority under N. J. 8. A. 2A:16L-24 to afford good conduct remission from sentence. As pointed out above, there is no specific statutory authority for good conduct credit for workhouse inmates, hut, nonetheless, such credit apparently is now being given in the workhouses of Mercer and Middlesex Counties

Aside from the denial of parole eligibility to any workhouse inmate, a circumstance that is not now here for resolution, it can he seen that a legislative line has been drawn at one year for parole eligibility purposes for prisoners sentenced to fixed or minimum-maximum and not indeterminate terms. County jail prisoners obtain no parole because all county jail sentences are less than a year. All those sentenced to minimum-maximum terms are eligible for parole consideration, but on such sentences the minimum must be at least one year and the maximum may he as high as the maximum prescribed for the offense in question. County penitentiary inmates are eligible to apply to the State Parole Board for parole where they are sentenced to more than a year and have served an adjusted year of their term.

We see nothing invalid in the determination that parole eligibility shall arise only with respect to sentences greater than one year. That a line between eligibility and non-eligibility must be drawn somewhere is a judgment with which there can be no constitutional quarrel. A parolee cannot be kept on parole longer than his maximum term, although he may be released from parole at an earlier date. N. J. 8. A. 30:4^-123.15; N. J. S. A. 30:4^-123.30. These statutes require that one released on parole who has less than two years remaining toward completion of his maximum term must be discharged from parole at the expiration of his maximum, but one who has more than two years remaining until completion of the maximum term may not be discharged from parole until he has completed two years of satisfactory parole adjustment. This indicates a judgment, surely a valid one, that short-term parole supervision is apt to be inefficacious. In this light, the administrative burden of supervising large numbers of short term parolees may be considered. Therefore, the thesis that on short sentences confinement and unconditional release should be the plan rather than an inefficient short parole has reasonable basis and no discriminatory class is created.

Drawing the line at one year in some instances may result in the anomaly of release on parole for a State Prison inmate earlier than discharge or parole release of one imprisoned in a county penitentiary. However, if a line is to be drawn, no matter where it is placed, such discrepancies cannot be avoided. We should add, too, that parole is a form of limited custody and a parolee is by no means as free as one released unconditionally. In short, we find the one-year line to be valid, although it does result in some surface discrimination which would be difficult, if not impossible, to avoid. The Constitution does not ban all discrimination, but only that which is unreasonable. The rationale behind the one-year criterion of parole eligibility passes constitutional muster.

We also believe that there are valid reasons for determining that a county penitentiary inmate shall have parole eligibility that arises later than such eligibility for a State Prison inmate sentenced to a comparable or slightly greater term. There are advantages to being sentenced to the county penitentiary rather than the State Prison. It is a fair assumption that most county inmates formerly resided and worked in a geographical area proximate to the place of 'their confinement. A county prisoner may qualify for a work release program that will enable him to retain previous local employment while serving his sentence. Most important is that a sentence to a county institution does not constitute a prior offense under N. J. S. A. 30:4-123.12. Thus, one previously sentenced to a county institution under circumstances where a State Prison sentence could have been given, upon a subsequent sentence to the latter institution, may still qualify for parole release as a first offender. A county institutional sentence does not bear the stigma of incarceration in State Prison and does not subject one to the necessity of serving with hardened criminals under long-term confinement. We point out, too, that if a split sentence pursuant to N. J. 8. A. 2A: 164 — 16 is imposed upon sentence to a county institution, parole is obviously inapplicable. We cannot say that to apply different parole eligibility criteria to county and state prisoners is an arbitrary or unreasonable judgment.

It is our conclusion, therefore, that the statutory parole scheme which creates eligibility for parole consideration only for those sentenced to more than one year and denies parole to those sentenced to a year or less does not unconstitutionally discriminate against inmates under sentence of a year or less. It is also held that the different time requirements for parole eligibility between county and State prisoners is justified.

Affirmed.

      State Prison sentences could have been given instead. Both statutes define high misdemeanors for which the maximum penalty is seven years. N. J. S. A. 2A :85-6.

      The statute has not been construed literally. One previously given a suspended State Prison sentence may later be sentenced to a reformatory term. Thus, it is necessary that there be actual confinement under a minimum-maximum term in order to preclude later reformatory confinement. State v. Pallitto, 107 N. J. Super. 96 (App. Div. 1969), certif. den. 55 N. J. 309 (1970).

      Our description of New Jersey’s penal and parole system is, we think, sufficient for present purposes. It is, however, more intricate and detailed, and to describe it in full here would be neither possible nor pertinent.

        McGinnis upheld denial of good deportment credit for presentence jail time which was required to be credited against the sentence eventually imposed. In New Jersey the same situation exists as to State Prison sentences. Everyone sentenced in New Jersey is as of right given credit for time spent in custody awaiting trial and sentence. R. 3:21-8; R. 7:4^6(e). N. J. S. A. 30:4r-140 forbids granting good behavior commutation credit on presentence time spent in custody. In McGinnis the constitutional challenge was predicated upon the proposition that denial of commutation credit on presentence jail time discriminated against those unable to make bail since those not in custody until sentence received such credits against their entire term, while those in jail prior to sentence obtained credit only on a reduced portion of the sentence given. The McGinnis result was anticipated in New Jersey by Torres v. Wagner, 121 N. J. Super. 457 (App. Div. 1972), and Lipschitz v. State, 43 N. J. Super. 522 (App. Div. 1957).

      Although it is not expressly set forth either in that case or in any statute, we think it doubtful that, henceforth, a court can sentence a female to an indeterminate term who has previously been confined under a minimum-maximum sentence.

      In the indeterminate sentence the understood maximum is five years, and it is on this basis that a right to release will accrue, in the absence of parole, after remission for earned credits. N. J. 8. A. 30:4^148; N. J. S. A. 30:4r-155. Under these statutes the maximum term for both men and women under an indeterminate sentence will not be five years in only two instances. First, if the offense for which sentenced carries a lesser maximum, that lesser term will control. Second, the five-year maximum will not apply if the offense for which sentenced carries a higher maximum and the court at the time of sentence “for good cause shown” imposes a higher maximum than five years, but in no event for a greater amount of years than the maximum provided by law for punishment for the offense in question. Courts have no power to reduce the statutorily prescribed máximums on indeterminate sentences. In re Nicholson, 69 N. J. Super. 230 (App. Div. 1961).

      it appears that workhouse inmates in Mercer and Middlesex Counties are being given deportment credits in accord with N. J. S. A. 2A:164r-24, which specifically provides for good conduct remission from sentence only for prisoners in county jails and penitentiaries. It seems to us that a denial of good conduct remission to workhouse inmates while extending it to other county prisoners raises a serious equal protection issue which, however, this record does not present for decision.
      Another such issue, also not available on this record, is the denial of any parole eligibility to workhouse inmates sentenced to more than a year while extending it to similarly sentenced county penitentiary prisoners.

      Tlie maximum petty offense (disorderly persons) penalty is six months’ imprisonment “in the county workhouse, penitentiary or jail.” N. J. S. A. 2A :169-4'. Most of our criminal statutes define misdemeanors, maximum punishment three years’ imprisonment, N. J. S. A. 2A:85-7, or high misdemeanors, maximum punishment seven years. N. J. S. A. 2A:85-6. In addition, many statutes carry their own penalties ranging from small fines to long imprisonment terms.

      We have already eliminated the complicating factor of parole for county jail 'inmates under N. J. S. A. 30:8-28 by ruling above that that statute should not be used.

       We think we may put aside the unusual situation exemplified by State v. Roleson, 14 N. J. 403 (1954), cert. den. 347 U. S. 947, 74 S. Ct. 647, 98 L. Ed. 1095 (1954), where a State Prison sentence may carry a minimum and maximum, both of one year, as too infrequent an occurrence to have an impact upon the validity of the parole system.

      Short maximum sentences within the state prison system often create an emergency case for the Parole Board, particularly if the prisoner is entitled to presentence jail credit, since under such circumstances the inmate’s parole eligibility date may arise shortly after his arrival. Under such circumstances serious consideration should be given to the alternative of confinement in a county institution.