text:
    STATE OF NEW JERSEY, PLAINTIFF, v. ROBERT B. TAYLOR, III, DEFENDANT.
    Bergen County District Court Criminal Division
    November 9, 1972.

      Mr. Theodore Carron, Assistant Prosecutor, for plaintiff.

      Mr. Louis J. Dinice for defendant.
   Huot, J. D. C.

This is a complaint charging defendant with violating N. J. S. A. 2A:170-29(2) (b).

On August 1, 1972, at about 2 p.m., defendant Robert B. Taylor, III was observed by police officers to be standing on Shaler Boulevard, Ridgefield, New Jersey and holding a yellow cardboard sign on which the words “RADAR AHEAD” were plainly visible. Upon these facts defendant was subsequently arrested and charged as a disorderly person in violation of N. J. S. A. 2A:170-29(2)(b). The pertinent section of that statute reads as follows:

2. Any person who in any place, public or private,
* * *
b. Obstructs, molests o
* * *
Is a disorderly person.

It is alleged that defendant, in the act of displaying the above-described sign, is a disorderly person in that he obstructed and interfered with the right of motorists who were driving on Shaler Boulevard at that time, and the right of the police officers to control, through the operation of radar equipment, the rate of speed of motorists driving on Shaler Boulevard. The issue to be resolved by this court, therefore, is whether or not the act of holding a sign stating “RADAR AHEAD,” while standing in the field of vision of passing motorists, should be construed as a disorderly act within the purview of the statutory language expressed in N. J. S. A. 2A:170-29(2) (b).

“Disorderly conduct” is not an offense known to common law. Convictions for acts constituting disorderly conduct must be for some offense prohibited by statute. State v. Labato, 7 N. J. 137 (1953); Breisia v. Court of Common Pleas, Hudson County, 11 N. J. Misc. 937, 169 A. 335 (Sup. Ct. 1933). Statutory offenses are characterized as being either mala in se or mala prohibila. An act is malum in se if it is inherently and essentially wrong and injurious. Those acts which do not fall within the category of mala in se but which are proscribed by the Legislature, such as the statute involved in the instant case, are mala prohobita: it is not the nature of the act that renders it wrong, but rather the fact that its commission is expressly forbidden by law. Since the illegality of a malum prohibitum act results from positive law, it becomes naturally incumbent upon the courts to construe the statute proscribing the act in conformance with legislative intent and to avoid those constructions which render any part of the statute superfluous. State v. Wean, 86 N. J. Super. 283 (App. Div. 1965); State v. Rullis, 79 N. J. Super. 221 (App. Div. 1963). Case law construing the Disorderly Persons Act has indeed been solicitous of the intent of the Legislature and supportive of the position that such intent is to be discerned from the language of the statute; hence the condemned act must be plainly and unmistakably within the penal statute and not within an arbitarary expansion of the scope of the statute. State v. Leonardo, 109 N. J. Super. 442 (App. Div. 1970); State v, Wenof, 102 N. J. Super. 370 (App. Div. 1968); State v. Smith, 46 N. J. 510 (1966); State v. Gibson, 92 N. J. Super. 397, 400 (App. Div. 1966); State v. Wean, supra, State v. Rullis, supra, State v. Caez, 81 N. J. Super. 315 (App. Div. 1963); Neeld v. Giroux, 24 N. J. 224, 229 (1952); Halsted v. State, 41 N. J. L. 552, 597 (E. & A. 1899).

With these precepts in mind, we now turn to an examination of the statute in question. It is indisputable that the protection of the statute does extend to police officers who were controlling the rate of speed of motorists on Shaler Boulevard. Cf. State v. Furino, 85 N. J. Super. 345 (App. Div. 1964). What is questionable is whether or not defendant, by the act of displaying the sign in question, did “obstruct” or “interfere” with these police officers and the motorists on Shaler Boulevard.

Blade’s Law Dictionary (4th ed. 1968) defines “obstruct” as to hinder or prevent from progress, check, stop, also to retard the progress of, or make accomplishment of difficult and slow; and the word “interfere” as to check, hamper, hinder, disturb, intervene, intermeddle, interpose, enter into, or take part in the concerns of others. “Molest” means to disturb, interfere with, or annoy; inconvenience. American Heritage Dictionary of the English Language, (1st ed. 1969, 1970).

This court finds no merit in the allegation that defendant did “obstruct” or “interfere” with motorists who were driving on Shaler Bouvelard. The motorists who were driving on Shaler Boulevard at the time defendant was holding the sign in question were not inconvenienced in any way. Their driving was not “obstructed” by defendant, since he was standing on the side of the road, and the legend on defendant’s sign certainly did not “interfere” with their driving. Upon observing the sign motorists had the election to either disregard it or to release the pressure on the pas pedal in attention to defendant’s purported warning. It is true that defendant could be construed to “interfere” with the police officers because the message on defendant’s sign intermeddled with the concern of the police to discover and apprehend violators of the traffic speed limit. Practical considerations, however, indicate that a conviction resting squarely on a literal definition is not only unsound but also capable of bizarre ramifications. Could we not then conclude that the act of a citizen in alerting the police to a speeding violator is also an “interference”? Should any act which frustrates the performance of a police officer’s duties be considered an “interference”? We cannot allow one definition of one of three verbs used in the statute to detract from the semantic content of the statute as a whole. This court does not deny the well-established rule of statutory construction that penal statutes are to be strictly construed. State v. J. M., 110 N. J. Super. 337 (App. Div. 1970); State v. Leonardo, supra, State v. Fair Lawn Service Center, 20 N. J. 468 (1956); State v. McCall, 27 N. J. Super. 157 (App. Div. 1953), vac. 14 N. J. 538 (1958); Stale v. Morrison, 25 N. J. Super. 534 (App. Div. 1953); State v. Perretti, 9 N. J. Super. 97 (App. Div. 1950); State v. Carr, 118 N. J. L. 233 (E. & A. 1937), but takes note of the equally well-established rule of law that no rule of strict construction may be used to torture the language of a penal statute beyond its clear meaning and implication. State v. Carbone, 38 N. J. 19 (1962); State v. Provenzano, 34 N. J. 318 (1961); State v. McCall, supra, State v. Meinken, 10 N. J. 348 (1953); State v. Brenner, 132 N. J. L. 607 (E. & A. 1945); State v. Hand, 71 N. J. L. 137 (Sup. Ct. 1904); Stricker v. Pennsylvania R. Co., 60 N. J. L. 230 (Sup. Ct. 1897).

By using the word “interfere” with the physical implicating words of “molest” and “obstruct,” it seems clear that the intent of the Legislature was to proscribe that type of conduct which has a direct, tangible and physical impact. Consequently, this court cannot entertain the supposition that the intent of the Legislature, as reflected by the statutory language of N. J. S. A. 2A:170-29(2) (b), would encompass the type of activity engaged in by the defendant. In State v. Furino, supra, the court held that evidence that defendant had attempted to interfere with the arrest of a companion by shouting obscenities at police officers and punching them in the chest sustained a conviction for obstructing and interfering with police officers in a public place, and stated:

We conclude that the elements of an offense proscribed by the statute in question are specific. No man of common intelligence would have to guess at the meaning of the statute, and the conduct condemned is certain. Cf. State v. Monteleone, 36 N. J. 93 (1961); State v. Dennis, 80 N. J. Super. 411 (App. Div. 1963). [at 349 of 85 N. J. Super.]

In Anderson v. Haas, 341 F. 2d 497 (3 Cir. 1965), the United States Court of Appeals interpreted N. J. S. A. 2A:170-29(2) (b) and stated (at 501), “The statute obviously prohibits any conduct within the limits of the actor’s ability to do so.”

We conclude that defendant’s act of displaying a sign stating “RADAR AHEAD” is not a disorderly act within the meaning of N. J. S. A. 2A:170-29(2) (b). To hold such conduct as “disorderly” would be neither harmonious with the clear meaning of the statutory language nor with the object and intent of the Legislature, as gathered from the whole context of the statute.

Our. decision today is in keeping with the Eirst Amendment to the Constitution of the United States. Although defendant’s act in displaying the sign stating “RADAR AHEAD” is not particularly meritorious or praiseworthy, it is nevertheless a form of speech that is rigorously protected by the Eirst Amendment. It is well-settled that “The constitutional protection does not turn upon the Truth, popularity or social utility of the ideas and beliefs which are offered,’ NAACP v. Button, 371 U. S. 415, 445, 83 S. Ct. 328, 344, 9 L. Ed. 2d 405,” New York Times Co. v. Sullivan, 376 U. S. 254, 274, 84 S. Ct. 710, 721, 11 L. Ed. 2d 686, 701 (1966), and that variations of the theme of freedom of expression may be made only in the presence of a “clear and present danger.” Cf. Schenck v. United States, 249 U. S. 47, 52, 39 S. Ct. 247, 63 L. Ed. 470, 473 (1919); Cantwell v. Connecticut, 310 U S. 296, 311, 60 S. Ct. 900, 84 L. Ed. 1213, 1221 (1940); Craig v. Harney, 331 U. S. 367, 376, 67 S. Ct. 1249, 1255, 91 L. Ed. 1546, 1552 (1947); Wood v. Georgia, 370 U. S. 375, 384, 82 S. Ct. 1364, 1370, 8 L. Ed. 2d 569, 576 (1962); Edwards v. South Carolina, 372 U. S. 229, 237, 238, 83 S. Ct. 680, 9 L. Ed. 2d 697, 703 (1963); New York Times Co v. United States, 403 U. S. 713, 91 S. Ct. 2140, 29 L. Ed. 2d 822 (1971).

The court finds the defendant not guilty.

      “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assembly, and to petition the government for a redress of grievances.”


source: Caselaw Access Project

author: Huot, J. D. C.

license: Public Domain

text:
    BROWNSTONE ARMS, PLAINTIFF, v. LINDA ASHER, DEFENDANT.
    Bergen County District Court
    Decided November 22, 1972.

      Mr. John P. Hogan for plaintiff (Messrs. Greenberg & Covitz, attorneys).

      Mr. Ronald B. Atlas for defendant.
   Huot, J. D. C.

This is a landlord-tenant action for nonpayment of rent. The tenant contends that the landlord is holding a security deposit and advance for the last month of the term, in violation of N. J. S. A. 46:8-19 and N. J. S. A. 46:8-21.2, and seeks to have that money applied as rent to the two months for which she is in default.

The defense raised by the tenant is cognizable by the court in summary dispossess proceedings. Marini v. Ireland, 56 N. J. 130 (1970); Academy Spires, Inc. v. Jones, 108 N. J. Super. 395 (Law Div. 1970).

It is clear from the language of N. J. S. A. 46:8—19 that the security deposit given and the advance rent given by the tenant must be held in an .interest-bearing account, cannot be mingled with any funds of the landlord, and the landlord must notify the tenant in writing of the name of the banking institution in which these funds are being held. This has not been done.

N. J. S. A. 46:8-19 terms security deposits and advances on leases as deposits to secure performance of leases. N. J. S. A. 46:8-21.2 limits the amount of such deposits to 1 1/2 months’ rent. Here the deposit amounted to two months’ rent and is clearly violative of the law.

The purpose of a security deposit is to afford protection to the landlord in the event that the tenant defaults in the payment of rent, causes damage to the premises, or breaches any covenants in the lease. Where the lease provides, as it does here, that the landlord shall retain the deposit until the end of the term of the lease, he may not be compelled to apply it to any earlier default. United Cigar Stores Co. of America v. Heithaus, 132 A. 655 (N. J. Sup. Ct. 1922); Vailsburg Amusement Co., Inc. v. Criterion Inv. Co., 9 N. J. Misc. 951, 156 A. 114 (1931); Burnstine v. Margulies, 18 N. J. Super. 259 (App. Div. 1952). If this were not the case the landlord would be without protection for the remainder of the term.

N. J. S. A. 46:8-19 provides protection for the tenant. It gives him the right to earn interest on his money, to know where his money is, and to be safe from having his money misapplied by the landlord. The protection afforded the landlord by the courts and the protection afforded the tenant by the Legislature are not inconsistent.

Plaintiff has the equivalent of two months’ rent, which has been illegally commingled with its other funds and which exceeds by $95 the amount of money which may be held by a landlord during the term.

Plaintiff contends that an amount equal to one month’s rent is permitted to be held as security and that N. J. S. A. 46:8-21.2 does not prohibit the holding of rent advanced for the last month of the term. That is an erroneous reading of the entire statute and ignores the clear intent of the Legislature expressed in N. J. S. A. 46:8-19, which reads in part:

Whenever money or other form of security shall be deposited or advanced * * * as security for performance of the contract, lease or agreement or to Tie applied to payments upon such contract, lease or agreement when due * * * [Emphasis added]

The court concludes that the intent of the Legislature was to limit the amount that a landlord could demand from a tenant, whether designated security, advance rent or otherwise, to a sum not exceeding the equivalent of 1 Y-z times the monthly rental payment agreed upon.

There is, however, no statutory authority in this court to grant defendant the relief she seeks. A violation of the provisions of N. J. S. A. 46:8-19 gives rise only to the right on the part of the tenant to have a trust enforced (N. J. S. A. 46:8-22) or to file a criminal complaint for diversion (N. J. S. A. 46:8-25). There is no criminal complaint before this court.

When, as here, a violation of N. J. S. A. 46:8-19 is shown to exist, the landlord should be ordered to comply with the act, deposit the security monies as required by law, notify the tenant of the location of the funds, and account for all interest that should have been earned from the time the deposit should have been made. This will effectuate the purposes of the act, which was intended to protect the security deposit. It was not the intent of the Legislature to change the character of the money from security to rent.

There is, of course, no problem with respect to the one month’s rent deposited specifically as security. A problem does arise with respect to the one month’s rent paid in advance for the rent for the last month of the term. The lease expressly states that this is rent to be applied upon the last month. N. J. S. A. 46:8-19 characterizes such an advance as a deposit to secure performance of the lease. As such, the landlord has taken more security than the law allows (N. J. S. A. 46:8-21.2). It is clear that the landlord may not retain all of this advance rent until the end of the term. May the landlord retain half of the month’s advance rent and thereby have the statutory limit as security, or should the court direct a credit to defendant’s unpaid rent?'

There is no sanction in the statute that the Legislature has directed against a landlord for violation of N. J. S. A. 46:8-21.2. It must, therefore, have been the intent of the Legislature that any excess funds in the hands of the landlord be applied to use and occupancy. Since the Legislature intended a landlord to have iy¡ times one month’s rent, the court holds that the plaintiff herein is entitled to retain $285 as security and must apply the remaining $95 toward the rent due for September 1972.

The court thus orders that plaintiff shall, by December 1, 1972:

(1) Deposit $285 in a banking institution or savings and loan association in this State insured by an agency of the Federal Government in an interest-bearing account.

(2) Deposit to such account, in addition, an amount equal to what interest would have accrued thereon had the same been deposited on February 3, 1972 (the date of execution of the lease).

(3) Provide this court with proof of such deposits.

(4) Notify defendant, in writing, the name and address of such banking institution.

(5) Credit defendant for the month of September 1972 with the payment of $95 toward the rent of $190.

(6) Credit defendant toward the September rent of $4.75, which is the equivalent of 6% interest on the $95 excessive security.

When this has been done, a judgment for possession will be entered on a finding that there remains unpaid for September 1972 rent in the amount of $90.25. A warrant may thereafter issue, unless defendant pays the balance of said amount. No costs will be afforded in this matter.


author: Per Curiam.

text:
    FLORENCE C. EVANS, PETITIONER-RESPONDENT, v. LENOX, INCORPORATED, RESPONDENT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued October 30, 1972
    Decided November 29, 1972.

      Before Judges Fritz, Lynch and Handler.

      Mr. Robert Neustadter argued the cause for petitioner-respondent (Messrs. Perskie & Neustadter, attorneys).

      Mr. James D. Carton, III, argued the cause for respondent-appellant (Messrs. Carton, Nary, Witt & Arvanitis, attorneys).
   Per Curiam.

Petitioner was awarded a judgment in the Workmen’s Compensation Division. It was affirmed by the Atlantic County Court, pursuant to a letter opinion by Judge Horn, dated November 30, 1971. The employer, appeals from that judgment.

The issue to be resolved was whether or not plaintiff’s work effort contributed in a material degree, either as a precipitating cause or by way of aggravation, to the onset of a stroke suffered by petitioner.

On appeal before this court we are not required to undertake an independent review and evaluation of the evidence. Rather our function is to determine whether the findings made could reasonably have been reached on sufficient credible evidence present in the record. Close v. Kordulak Bros., 44 N. J. 589 (1965); Jackson v. Concord Co., 54 N. J. 113, 117 (1969). In this case, petitioner’s treating physician expressed the opinion that she had been under tension at work because of inability to equal the average departmental efficiency rate, having to re-do her work if it was not perfect and that she had also been working overtime while under tension. lie testified that these conditions affected and aggravated respondent’s hypertension, and ultimately developed into the stroke involved. The appellant-employer argues that a close analysis of his opinion testimony demonstrates a hypothesis which lacks factual basis in the record. While petitioner’s condition unquestionably diminished her ability to testify as coherently as she might have had she suffered no stroke, we think her testimony plus the other evidence in the record was adequate to overcome the suggestion of this argument.

Defendant’s expert, upon cross-examination, admitted that he could not say “that there is any more of a finding [sic] of no causal relationship than there is a finding that there is a causal relationship.”

Under the standards of review set forth, we find that there is sufficient credible evidence in the whole record to justify the conclusion below.

Affirmed.


author: Halpern, J. A. D.

text:
    WILLIAM S. RUDDEROW, WILLIAM X. BONNER AND MARYANNE A. BUSHA, PLAINTIFFS-RESPONDENTS, v. THE TOWNSHIP COMMITTEE OF THE TOWNSHIP OF MOUNT LAUREL, THE TOWNSHIP OF MOUNT LAUREL, A MUNICIPAL CORPORATION, DEFENDANT, AND HANNAH A. ROSING, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued November 20, 1972
    Decided December 4, 1972.

      Before Judges Collester, Leonard and Halpern.

      Mr. S. David Brandt argued the cause for appellant Hannah A. Rosing (Messrs. Farr, Brandt, Haughey & Penberthy, attorneys; Mr. Stanley E. Zuzga, on the brief).

      Mr. Malcolm Block argued the cause for intervenors Goodwin Homes, Inc. and C. G. Asociates (Messrs. Beck and Block, attorneys).

      Mr. William B. Scatchard, Jr. argued the cause for respondents William S. Rudderow, William X. Bonner and Maryanne A. Busha (Messrs. Capehart & Scatchard, P. A., attorneys).

      Mr. John W. Trimble argued the cause for the Township of Mount Laurel (Messrs. Higgins, Trimble & Master, P. A., substituted attorneys).
   The opinion of the court was delivered by

Halpern, J. A. D.

This is an appeal from a final judgment setting aside a tentative approval granted by Mount Laurel Township to appellant for a planned unit development .project known as “Cross Keys.”

Since the opinion of the court below 114 N. J. Super. 104 sets forth the legislative history of New Jersey’s Municipal Planned Unit Development Act (1967), N. J. S. A. 40:55-54 et seq., hereinafter referred to as P. U. D., it will not be repeated herein. The legislative goals are fully set forth in N. J. S. A. 40:55-55. In summary, P. U. D. is a recognition by the Legislature tha,t the “Euclidean” (traditional) zoning approach, .adopted in New Jersey about 50 years ago, had outlived its usefulness, and that new and more creative flexible approaches had to be adopted to overcome “Euclidean” zoning inequities and deficiencies, and enable municipalities to provide for housing and other public needs for the present and reasonably foreseeable future. P. U. D. is the antithesis of the exclusive districting principle which is the mainstay of “Euclidean” zoning. The latter approach divided a community into districts, and explicitly mandated segregated uses. P. U. D., on the other hand, is an instrument of land use control which auguments and supplements existing master plans and zoning ordinances, and permits a mixture of land uses on the same tract (i e. residential, commercial and industrial). It also enables municipalities to negotiate with developers concerning proposed uses, bulk, density and set back zoning provisions, which majr be contrary to existing ordinances if the planned project is determined to be in the public and individual homeowner’s interest. It also recognizes the importance of encouraging and making it financially worthwhile for developers and investors to undertake P. U. D. projects by permitting a more intensified utilization of vacant land which is scarce and skyrocketing in price.

The Legislature directed, “This act shall be construed most favorably to municipalities, its intention being to give all municipalities the fullest and most complete powers possible concerning the subject matter hereof. * * *” N. J. S. A. 40:55-67.

Mount Laurel Township, after extended study, adopted its comprehensive P. U. D. ordinance in December 1967, and patterned it after N. J. S. A. 40:55-54 et seq. It is apparent that a great deal of planning and thought went into the preparation of the ordinance so that what was primarily a rural farming community could be developed to meet “* * * increasing urbanization and of growing demand for housing of all types and design; to provide for necessary commercial and educational facilities conveniently located to such housing; * * In short, the ordinance sought to utilize the P. U. D. approach as a zoning tool to accomplish the “Objectives of Development” more fully described in Article III-A of the ordinance. It is highly significant that N. J. S. A. 40:55-57(a) and Article III-A, par. A(2), of the ordinance go beyond the model statute suggested in the Urban Land Institute Technical Bulletin 52 (1965) which was designed for residential development and other nonresidential uses ancillary to the residential use. The state statute and the ordinance specifically provide:

(a) Permitted Uses. An ordinance adopted pursuant to this act shall set forth the uses permitted in a planned unit development, which uses may include and shall be limited to (1) dwelling units in detached, semidetached, attached, groups of attached or clustered or multistoried structures, or any combination thereof; and (2) any nonresidential use, to the extent such nonresidential use is designed and intended to serve the residents of the pilanned unit development, and such other uses as exist or may reasonably be expected to exist in the future, and (3) public and private educational facilities, and (4) industrial uses and buildings. * * *

Appellant made a preliminary application to construct “Cross Keys” as a P.U.D. project in April 1969. It was not until April 1970 that tentative approval was granted subject to 53 conditions. During that year “Cross Keys” was intensively discussed and reviewed by the township committee, the township planning board, the county planning board, the State Department of Community Affairs, the Mount Laurel School Board, the Mount Laurel Recreation Commission, the Municipal Utilities Authority, the township engineer, the township planner, and the township solicitor. In addition, five public hearings were held at which interested citizens were heard.

As tentatively approved, “Cross Keys” involved 162.6 acres of land at the intersection of Route 73 and Church Road, in Mount Laurel. -It was designed to encompass five residential villages having a total of 975 individual housing units limited to garden apartments, medium-rise apartments, and town ■house apartments, occupying about 56.10 acres of the tract. It also provided for a regional shopping mall to occupy about 45.8 acres; office buildings on about 12.2 acres; athletic fields; an indoor-outdoor swimming pool; controlled play areas; two lakes comprising about eight acres, and a community building. Although “Gross Keys” was in an area zoned industrial, no industrial use was contemplated as part of the project.

Our study of this voluminous record convinces us that “Cross Keys” was thoroughly considered by the township committee; it met the stringent standards fixed by the statute and ordinance; the township committee’s tentative approval was reasonable and proper, and that the lower court too narrowly construed the underlying statutes and the powers granted the township committee therein.

Before considering the trial court’s decision in setting aside the tentative approval granted appellant, it should be emphasized that our role in reviewing zoning ordinances, adopted pursuant to legislative grant, is narrow and limited. We do not judge the wisdom of an ordinance, hut act only if the presumption of its validity is overcome by an affirmative showing of unreasonableness or arbitrariness. If the issue is debatable the ordinance must be upheld. Kozesnik v. Montgomery Tp., 24 N. J. 154, 167 (1957).

We turn first to the trial court’s conclusion that “the ordinance is invalid in that it does not provide for specific districts as required by the statutes and Constitution of this State.” We reiterate, one of the prime purposes of N. J. S. A. 40:55-54 et seq. was to get away from the “Euclidean” principle of blocking out designated districts for specified uses, and instead to permit prohibited uses within already established districts, and to permit deviations from bulk, density and set back requirements, if P.U.D. standards are met. Thus, Article III C-l provides: “Any District within the Township may be used as sites for Planned Communities or Planned Unit Development.” The obvious advantage emanating from the use of P.U.D. is its flexibility in enabling a municipality to solve some of its existing zoning problems, and meet its future community needs with the land remaining for development. To require P.U.D. ordinances to establish specific districts wherein a P.U.D. may be authorized, would destroy the very purpose and philosophy for its creation. Such was not the legislative intent. We hold Laurel Township’s P.U.D. ordinance, as enacted, to be valid.

Coneededly, the regional shopping center provided for in “Cross Keys” was considerably larger than needed to serve the residents in the planned community. The trial court determined that “the statute and the ordinance do not permit the construction of nonresidential uses beyond those intended to serve the residents of the planned community.” We disagree. Again, we find the trial court took too narrow a view of the enabling statute. Such construction by the trial court would continue existing, and create additional, “Euclidean” zoning problems and nullify the legislative intent. New Jersey Builders v. Blair, 60 N. J. 330, 338-339 (1972).

We construe the statute to authorize municipalities, where warranted, to permit commercial uses in a P.U.D. project beyond that needed for the residents within the planned community. Municipalities, as part of their comprehensive zoning plans, may properly anticipate and provide for the present needs of the public now residing in the areas surrounding the planned community, as well as the reasonably foreseeable future needs of the public they anticipate will move into the area and require servicing. Municipal boundaries should not be considered unscalable walls to prevent planned and reasonable growth of remaining available land areas. See Quinton v. Edison Park Development Corp., 59 N. J. 571, 578-579 (1971).

We adopt this statutory construction with full realization that it places a heavy responsibility upon local municipalities to carefully consider each application for a P.U.D. project on its own merits — always keeping foremost in mind the present and reasonably foreseeable future needs of the public in the complex society in which we presently live. Based upon the facts in this record, Mount Laurel Township’s authorization to erect the commercial area in question was a reasonable exercise of its delegated power under the enabling statute and ordinance.

Finally, we have considered the entire record and, contrary to the determination of the trial court, find adequate support therein for the township’s findings of fact as required by N. J. S. A. 40:55-56(f). The miscalculation of acreage designed for commercial use is too insignificant to affect the legality and adequacy of the ordinance.

So, too, we find the ordinance adequately meets the requirements on designation of open spaces as required by N. J. S. A. 40:55-57(c). Here, again, it is obvious that the Legislature gave municipalities the right to determine the extent of open space deemed desirable and necessary. There is ample support in the record for the township’s finding of fact that the open spaces designated in "Cross Keys” were adequate and reasonable.

The judgment below is reversed.


author: Herbert, J. S. C.

text:
    WM. C. BLANCHARD CO., A NEW JERSEY CORPORATION, PLAINTIFF, v. BEACH CONCRETE CO., INC., A NEW JERSEY CORPORATION, DEFENDANT THIRD-PARTY, PLAINTIFF, v. WASHINGTON PARK BUILDING, INC., A NEW JERSEY CORPORATION, THIRD-PARTY DEFENDANT.
    Superior Court of New Jersey Chancery Division
    Decided November 29, 1972.

      Mr. John C. Heavey, Jr. for plaintiff (Messrs. Carpenter, Bennett & Morrissey, attorneys).

      Mr. Robert Baron for defendant.

      Mr. Clyde A. Szuch and Mr. Richard L. Plotkin for third-party defendant (Messrs. Pitney, Hardin & Kipp, attorneys).

      Mr. Merritt T. Viscardi for C. S. T. Erection Co. East (Messrs. Apruzzese & McDermott, attorneys).

      Mr. Richard L. Amster for Rockwin Corporation, Eastern Schokbeton Division (Messrs Amster & Levin, attorneys).
   Herbert, J. S. C.

This case arises out of the construction of the new office building at Washington and James Streets in Newark which has now become the headquarters of the Blue Cross-Blue Shield organization. The owner of the property is defendant Washington Park Building, Inc. That corporation had a general contract with plaintiff Blanchard to construct the building in accordance with plans and specifications prepared by architects and engineers. Defendant Beach entered into a subcontract with plaintiff Blanchard by which Beach agreed to erect the structural concrete of the building. Blanchard also made a subcontract with Roekwin Corporation, Eastern Sehokbeton Division, to manufacture prefabricated architectural concrete and to install it upon the building. Sehokbeton furnished the prefabricated concrete members, but in turn subcontracted with C. S. T. Erection Co. East for their placement or erection.

A web of claims and cross-claims are involved in this situation. Much time and effort has been spent in an attempt to work out an arrangement whereby every claim of every contractor and subcontractor, as well as claims by and against the owner, would be presented in a single arbitration. The attempt has not succeeded and defendant Beach now moves for an order requiring that all issues between it and the plaintiff Blanchard be submitted to arbitration and that this action be stayed until the arbitration is completed. Plaintiff Blanchard has made a cross-motion for an order to consolidate all claims and defenses of Blanchard, Beach and Washington Park in a single arbitration proceeding. Plaintiff has also moved for leave to join as an additional defendant here Rock-win Corporation, Eastern Sehokbeton Division, this being for the purpose of making the new defendant a party to an order for consolidated arbitration if there should be such an order entered.

An added complication is a suit brought in the Law Division of the Superior Court, Union County, Docket Ho. L 388-72 entitled: C. S. T. Erection Co. East and Eastern Sehokbeton, a Division of Rockwin Corporation, plaintiffs, v. Washington Park Building, Inc., Wm. Blanchard Co., Welton Becket & Associates and Hospital Service Plan of New Jersey, defendants. I have been informed that in this Law Division action Washington Park and Hospital Service Plan intend to serve a third-party complaint upon Beach Concrete Co., and that the Blanchard company also intends to serve a third-partj'' complaint upon Beach.

At earlier stages of the case it has been argued for Beach that all claims should be disposed of in a single proceeding. Beach has an arbitration clause in the subcontract between it and Blanchard, the general contractor. That clause does not encompass claims which others have against Beach or which Beach may wish to assert against those others. There is no arbitration clause anywhere in the contract documents which by its terms makes the entire web of claims and cross-claims (or even the greater part of that web) subject to a single arbitration or subject to consolidation if a series of separate arbitrations should be demanded. Hor is there any provision in the contract documents providing that a court or courts may take over the entire controversy in all its parts in the event that a complex of claims cannot be arbitrated in a single proceeding.

Beach now departs from its former position that there should be a single proceeding to determine all parts of the complex controversy and presses its motion for an order requiring only arbitration of the claims between Beach and Blanchard. It takes the position that it is entitled to such an order by reason of the arbitration clause in its subcontract with Blanchard and our statute (N. J. S. A. 2A:24-1 et seq.) relating to enforcement of contracts for arbitration. In taking that position Beach has to be willing to present elsewhere its claims against parties other than Blanchard and to defend elsewhere the claims others may have against it. Hollowing such a course will subdivide the entire ease and rather obviously will make it necessary to go over the same proofs and deal with substantially the same subject matter and issues more than once. There might also be conflicting decisions by different arbitration panels or between a court decision and an arbitrator’s, award. Though handling all of the claims and cross-claims in a single proceeding before a single tribunal would be far from simple, that procedure in my judgment would be simpler than the duplication of effort, the possible conflicts and the over-all complications of piece-by-pieee solutions.

Thus, the questions presented are:

Is Beach entitled to an order for an arbitration of all Beach-Blanchard claims and only those claims?
Or — Can a single consolidated arbitration of all claims between all parties be ordered?
Or — Can all parties to the present action and to the action in the Law Division, Union County, be required to litigate in one of those actions every existing claim and defense ?

The “General Conditions” of the prime contract between Washington Park Building, Inc. and plaintiff Blanchard contain the following paragraph relating to arbitration:

7.10.1 All claims, disputes and other matters in question arising out of, or relating to, this Contract or the breach thereof, except as set forth in Subparagraph 2.2.9' with respect to the Architect’s decisions on matters relating to artistic effect, and except for claims which have been waived by the making or acceptance of final payment as provided by Subparagraphs 9.7.5 and 9.7.6, shall be decided by arbitration in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association then obtaining unless the parties mutually agree otherwise. This agreement to arbitrate shall be specifically enforceable under the prevailing arbitration law. The award rendered by the arbitrators shall be final, and judgment may be entered upon it in accordance with applicable law in any court having jurisdiction thereof.

Beach’s motion relies upon the following language found in a set of “General Conditions” which are incorporated in the Beach-Blanchard contract:

85. ARBITRATION
(a) Disputes, claims, or questions subject to arbitration under this Contract, shall be submitted to arbitration in accordance with the provisions then prevailing, of the Construction Industry Arbitration Rules of the American Arbitration Association. This agreement so to arbitrate shall be specifically enforceable under the prevailing arbitration law, and judgment upon the award rendered may be entered in the highest court of the forum, State or Federal, having jurisdiction. It is mutually agreed that the decision of the arbitration shall be a condition precedent to any right of legal action that either party may have against the other.
(b) Disputes arising from the following causes are excluded from resort to arbitration:
(1) Decisions of the Architect on matters relating to artistic effect.
(2) Claims Waived by the making or acceptance of final payment as stipulated above, Article 88.

Although, this language from the Blanchard-Beach subcontract does not attempt to define matters “subject to arbitration,” I think the only sensible interpretation, and one that will give the clause an effective meaning, is to read it with reference to the arbitration clause of the Washington Park-Blanchard prime contract and have it apply to “All claims, disputes and other matters in question arising out of, or relating to, this Contract or the breach thereof * * *," except for the exclusions expressly noted.

“Arbitration, as commonly understood, is a proceeding voluntarily initiated by the parties, and at common law its basis is their voluntary act.” 5 Am. Jur. 2d, Arbitration and Award, § 9, at 526 (1962). Cf. In Re Smith, 381 Pa. 223, 112 A. 2d 625, 55 A. L. R. 2d 420 (Sup. Ct. 1955), app. dism. Smith v. Wissler, 350 U. S. 858, 76 S. Ct. 105, 100 L. Ed. 762 (1955). In general, there was no enforcement at common law of agreements to arbitrate. 5 Am. Jur. 2d, Arbitration and Award, § 36, at 548. The power of New Jersey courts to order performance of an agreement to arbitrate depends upon our statute, N. J. S. A. 2A:24-1, which originated as L. 1923, c. 134, p. 291 et seq.

The language of the statute supports the view that a court’s power to order performance depends upon, and is limited to, the agreement of the parties. N. J. S. A. 2A:24 -1 speaks exclusively of a contract or agreement “to settle by arbitration a controversy” and declares that it “shall be valid, enforceable and irrevocable, except upon such grounds as exist at law or in equity for the revocation of a contract.” Section 2A:24—4 provides for a stay of any action pending before a New Jersey court “upon an issue arising out of an agreement providing for the, arbitration thereof,” and further provides that the stay is to continue “until an arbitration has been had in accordance with the terms of the agreement.” Section 2A:24-3 provides that the enforcement order of a court shall be “that the arbitration proceed in the manner provided for in the agreement.”

Statements made by Judge Bigelow during the course of his opinion in Rosenthal v. Berman, 14 N. J. Super. 348 (App. Div. 1951), have some bearing upon the questions presented by the present motions. The actual decision in Rosenthal was that the trial judge had erred in granting summary judgment for the defendants on motion, the basis for that ruling being that there was an arbitration agreement encompassing the matters in dispute. On appeal it was pointed out that only the plaintiff and two of five defendants were parties to the contract which contained the arbitration clause: that there was no provision in the clause making arbitration a prerequisite to suit, and that the proper course for the trial judge would have been to refuse to give defendants a summary judgment of dismissal but rather determine whether or not a stay of the suit should be granted pending arbitration. However, plaintiff argued on appeal that it would have been error even to grant a stay of his action in the Chancery Division, urging among other things that he had not agreed to arbitrate with three of the defendants and they would not be bound by any arbitration award. In response to that argument, Judge Bigelow said for the court:

Plaintiff’s action cannot be stayed as against parties with whom he is not obligated to arbitrate. Under the English statute, if some of the parties to the action at law are outside the arbitration agreement and some are within, or if some of the issues in the action are beyond the agreement, the action at law will not be stayed as against any of the parties, at least where the issues and the relationships are closely intertwined. “It cannot be right to cut up this litigation into two actions, one to be tried before the arbitrator and the other to be tried elsewhere.” Turnock v. Sartoris, L. R. (1889), 43 Ch. D. 150 (C. A.); Bonnin v. Neame, L. R. (1910), 1 Ch. D. 732. Cf. Fernandez v. Golodetz, 148 F. 2d 625, 161 A. L. R. 1420 (2d Cir. 1945). We note that in England the stay is discretionary, while our statutory language is positive, — the court “shall stay the action.” Vet the judge must have a considerable leeway in determining whether the situation presented to him is within the policy of the statute. Care must be taken to prevent a party who has agreed to arbitrate, from avoiding his bargain by dragging in extraneous issues and unnecessary parties. On the other hand, a stay should not be granted as to any of the parties where the litigation cannot be severed without unduly increasing the cost of justice, or causing other hardship to the parties, [at 352]

This language suggests that a judge should have some discretion in determining how a complicated controversy is to be handled if part of it is subject to an arbitration agreement and other parts are not subject to arbitration, but Rosenthal is not a decision to that effect.

J. Brodie & Son, Inc. v. George A. Fuller Company, 16 Mich. App. 137, 167 N. W. 2d 886 (App. Ct. 1969), is somewhat similar to the present case. Defendant Fuller was the general contractor engaged to construct a building for First Federal Savings & Loan Association. The general contract between those two contained an arbitration clause. Fuller made subcontracts with each of the six plaintiffs. Those subcontracts contained arbitration clauses. About five months before starting suit each of the plaintiffs demanded arbitration of tlieir claims against Puller. Shortly thereafter Fuller demanded arbitration of its claims against First Federal and that was followed by a demand of First Federal for arbitration of its claim against Fuller. Plaintiffs then started suit and presented to the trial court a single issue: Whether arbitration proceedings between the plaintiff subcontractors and Fuller should be consolidated with the arbitration proceedings between Fuller and First Federal. The trial court ordered consolidation and First Federal and Fuller appealed. The Court of Appeals reversed; saying.

While recognizing this lack of contractual agreement between plaintiffs and defendant First Federal, plaintiffs contend that consolidation does not affect such rights. Rather, plaintiffs feel that although there is no privity of contract there is a great degree of identity of issues involved in the dispute between Fuller and First Federal, and between jjlaintiffs and Fuller. They point out that the contract between Fuller and First Federal contemplates a third party and even provides for the presence of the subcontractor in any proceedings involving their rights. Plaintiffs correctly recognize that to disallow consolidation would, to a great degree, create a duplication of arbitration.
While recognizing that the proposed consolidation by the learned trial judge represents the more efficient solution, this Court must reverse, [at 888]
* * * * *
All the parties admit that there is no privity of contract or agreement to arbitrate between First Federal (owner) and plaintiffs (subcontractors). Therefore, there is no arbitration agreement between First Federal and the plaintiffs as required by the statute; and as stated in
Atkinson v. Sinclair Refining Co. (1962), 370 U. S. 238, 82 S. Ct. 1318, 8 L. Ed. 2d 462: “Arbitration is a matter of contract and a party cannot be required to submit to arbitration any dispute which lie has not agreed so to submit.”
The separate contracts (owner-general contractor, general conrracior-subcontractor) each specifically call for arbitration. This arbitration is to be conducted under the rules of the American Arbitration Association. Since we find no privity of contract nor jurisdiction of the court to impose consolidation, we must reverse.

The court also discussed possible application of the Michigan rule on consolidation, but concluded that it applied only to civil actions pending in the state’s courts. In the light of the clear wording of our rule on consolidation (R. 4:38-1), the same conclusion has to be drawn here. By contrast, New York has sections in its Civil Practice Act making arbitration proceedings subject to consolidation and giving the state’s courts power to consolidate. See Symphony Fabrics Corp. v. Bernson Silk Mills, Inc., 12 N. Y. 2d 409, 240 N. Y. S. 2d 23, 190 N. E. 2d 418 (Ct. App. 1963).

My views about the best result for all concerned, including Beach, can be stated by repeating emphatically the words of the English judge already quoted above from Rosenthal:

It cannot be right to cut up this litigation into two actions, one to be tried before the arbitrator and the other to be tried elsewhere.

However, I see no proper way to reach that result, especially for a trial court, in the absence of authority and in the face of our statute. I regard the statute as the greatest obstacle to any form of consolidation which has not been consented to by all of the parties. It does not, like the New York legislation, make provision for ordering consolidation of two or more arbitrations brought under separate contracts. It addresses itself to “a written contract * * * or a written agreement” to arbitrate and says such contract or agreement shall be “enforceable.” N. J. S. A. 2A:24-1. Section 4 of the statute provides that in any action brought upon an issue which by agreement is subject to arbitration, the court “shall stay the action * * Neither section 1 nor section 4 suggests that a judge has any discretion — assuming an agreement to arbitrate and an issue to which it applies — to refuse to enforce or to refuse to stay an action in the courts on the same issue. The positive nature of the mandate to stay was expressly recognized in Rosenthal, supra.

Section 3 of the statute is worded less positively. It provides that the Superior Court or the County Court “may in a summary action direct that the arbitration proceed * * Section o, which provides for the naming of arbitrators or an umpire when the parties to the arbitration agreement fail to do so, also uses the word “may.” It says that the court “may in the summary action provided for i n section 2A :24-3 of this title or in another action, designate and appoint an arbitrator or an umpire * * *.”

My conclusion is that the use of “may” in sections 3 and 5 does not show legislative intent to confer discretionary power to enforce or not to enforce an agreement tor arbitration when the parties to the agreement have a dispute covered by it. Such discretion appears to be in conflict with the unqualified declaration in section 1 that an agreement to arbitrate “shall be valid, enforceable and irrevocable * * * » j am inclined to think that the word “may” was used in section 3 in connection with the words “summary action” to indicate a degree of disci-etion as to the manner of determining the foundation facts (agreement, existence of a covered dispute, refusal to arbitrate, etc.) on which an order to arbitrate would have to be based. This thought gains support from the manner in which “may” is used in section 5.

Beach is seeking enforcement of the arbitration clause in its contract with Blanchard. That is provided for by our statute and is all that our statute provides for. Legislation giving authority to consolidate in appropriate eases would be a useful tool, but we have no such legislation as yet and in its absence the Blanchard motion for consolidation must be denied and Beach’s motion for an order directing that matters in dispute between Beach and Blanchard which fall within the arbitration clause of the B1 anchard-Beach subcontract be arbitrated is granted.

Insofar as this suit involves issues between Beach and Blanchard that are subject to the arbitration clause of the Blanehard-Beach subcontract, there will be a stay of those aspects of the suit. If it becomes, important to any party in this case to apply for a stay of any other issues on the ground that they are subject to arbitration, that may be done.

I have also considered the argument that the Chancery Division, under general equity powers, can — and in this case should — order arbitrations stayed and direct that questions involved therein be disposed of in litigation in the courts. This argument, if valid, would lead to an order consolidating this case with the Law Division case in Union Countjq or vice versa. I cannot accept the argument, however. The reasons requiring its rejection are much the same as those against consolidation of two or more arbitrations. Beach has a contract for arbitration and seeks to have it enforced. By statute our courts are required to enforce. To keep Beach out of arbitration, and keep it in the courts to litigate the claims between it and Blanchard as part of a larger litigation, would be to deny Beach enforcement of its contract to which the statute says it is entitled.

No costs are allowed.


author: Stamler, J. S. C.

text:
    AILEEN CAVANAGH AND DAVID RAMSEY, PLAINTIFFS, v. MORRIS COUNTY DEMOCRATIC COMMITTEE, DEFENDANT.
    Superior Court of New Jersey Chancery Division
    Decided December 1, 1972.

      Mr. Philip S. Carchman for plaintiffs, (Messrs. Carchman, Sochor & Carchman, attorneys).

      Mr. Salem Vincent Ahto for defendant (Messrs. Taigman and Ahto, attorneys).
   Stamler, J. S. C.

This is an action of novel impression for a declaratory judgment brought by plaintiffs as representatives of a class comprised of all registered members of the Democratic Party of Morris County eligible to vote in Democratic primary elections and all persons eligible for nomination for candidacy to elective office. Defendant is the Morris County Democratic Committee. The relief sought, to be determined on cross-motions for summary judgment, concerns a by-law adopted by defendant which establishes a candidate screening committee alleged by plaintiff to be in violation of N. J. S. A. 19:34-52.

The court determined that a proper resolution of the issue presented necessitated a review of the constitutionality of N. J. S. A. 19:34-52. The Attorney General of the State of Now Jersey, refusing to enter the action on his own initiative, was made a party-defendant, the amended complaint alleging he was empowered by law to enforce the provisions of Title 19 of the Revised Statutes (N. J. S. A. 19:1—1 et seq). A motion by the Attorney General to dismiss the complaint as. to him was denied by this court. On interlocutory appeal the Appellate Division reversed (Docket A—1573—71, March 16, 1972), stating that no claim for relief was made against the Attorney General and that no challenge was directed to the constitutionality of the statute. Accordingly, this court will not consider the constitutionality of N. J. S. A. 19:34-52.

To require defendant to operate under the proposed by-law before plaintiffs can test the validity of the action would tarnish the candidate and perhaps even upset the results of a primary election. The matter, therefore, is ripe for declaratory interpretation. N. J. S. A. 2A:16—50 et seq.

The following facts were stipulated to by the parties:

Plaintiffs A IDEEN GAVANAGH and DxlVID RAMSEY are residents and taxpayers of tlie Borough of Chatham and County of Morris. They are registered members of the Democratic Party as such is defined and established pursuant to N. J. S. A. 19:23-45.
Plaintiffs bring this action on their own behalf and on behalf of other persons similarly situated pursuant to It. 4:32-l, et seq. The class which plaintiffs represent is composed of all registered Demoerais in the County of Morris who are eligible to vote in Democratic primary elections and all persons woh are eligible for nomination for candidacy to elective office. The rights of the plaintiffs and the class they represent will be in the future affected by the action of the defendant, MORRIS COUNTY DEMOCRATIC COMMITTEE. These persons are so numerous that the joinder of all members of the class is impracticable. There are questions of law and fact common to the class. The claims of the representative parties are typical of the claims of the class. The representative parties will fairly and adequately represent the interests of the class. An adjudication with respect to the representative plaintiffs would, as a practical matter, be dispositive of the other interests of the class not herein named who are not parties to this action.
Defendant, MORRIS COUNTY DEMOCRATIC COMMITTEE, is a statutorily created body established pursuant to the provisions of N. J. S. A. 19:5-3 consisting of members chosen pursuant to the statutory authority as aforesaid and is a county committee within the language, meaning, and intent of the statutory authority as aforesaid.
Pursuant to the provisions of N. J. S. A. 19:5—3, the defendant, MORRIS COUNTY DEMOCRATIC COMMITTEE, has authority and power to adopt a constitution and by-laws for its proper government.
On or about March 31, 1970, the defendant, MORRIS COUNTY DEMOCRATIC COMMITTEE, adopted revised by-laws including a provision which states in part:
ARTICLE 5. CANDIDATE SCREENING COMMITTEE
A candidate Screening Committee shall be established consisting of representatives from each municipality, Democratic officials who hold office won in a General Election in all or any part of Morris County and the Executive Committee. Advance public notice shall be made of all meetings of the Screening Committee and they shall be open for public participation.
Each member of the Screening Committee shall have one vote on all matters except on the endorsement of candidates. On endorsement of candidates each member shall have one vote except the municipal representatives who shall share equally among them votes equal to the number of members of the organization residing in their municipality. The municipal chairman shall be a representative from each municipality. In municipalities with more than sixteen votes the municipal committee shall elect the minimum number of additional representatives needed to insure that no representative from that municipality is allotted more than sixteen votes.
The names of all members of the Screening Committee, together with the units they represent and the votes they are authorized to east for endorsement shall be available to all members of the County Committee.
The Screening Committee shall meet at the call of the Chairman of the organization or upon petition of those of its members sufficient to form a quorum.
A quorum of the Screening Committee shall exist when the members who are present are authorized to cast one-fifth of the votes which could be cast on a motion for endorsement of a candidate.
The Screening Committee members shall bear all expenses for their meeting to conform with New Jersey Election Law.
ARTICLE 12. ADOPTION
These by-laws shall be effective upon approval by a simple majority of those present.
It is the expressed intention of the MORRIS COUNTY DEMOCRATIC COMMITTEE to utilize the “Screening Committee” in the screening and endorsement of candidates for public office prior to primary elections.

Article 5 of the by-laws of the Democratic Committee creates a screening committee for the purpose of evaluating and endorsing candidates prior to primary elections. Plaintiffs allege this is in violation of N. J. S. A. 19:34-52, which reads:

Xo state, county or municipal committee of any political party shall prior to any primary election indorse the candidacy of any candidate for a party nomination or position.

Defendant takes the position that the screening committee is not a committee within the intended meaning of the statute. It alleges without any argument or support of legislative history or legal precedent that N. J. S. A. 19:34-52 is “only applicable to the county democratic committee and not to a committee thereof.” This position is untenable. The Morris County Democratic Committee does not have the authority to create a committee independent from itself. N. J. S. A. 19:5-3, which provides for the organization of county committees, gives “Such committee * * * power to adopt a constitution and by-laws fox its proper government.” (Emphasis added). Any special committee established by defendant must be considered a part of tile Democratic Committee. Since the screening committee is an open arm of the county committee, it would completely circumvent the legislative prohibition in N. J. S. A. 19:34-52 to say that the statute only applied to the parent committee but not to a “committee thereof.” If defendant’s contention were true, then any state, county or municipal political committee could evade any regulatory provision it wished by establishing a subcommittee. Eor example, if a county committee desired to provide financial support for a primary candidate, an act strictly prohibited by N. J. S. A. 19:34-33, it could do so by creating a finance committee and avow its independence. A decision in compliance with defendant’s position would render many electoral regulating provisions meaningless.

The equitable maxim that equity looks to substance rather than form dictates that the screening committee not be considered immune from the enforcement of N. J. S. A. 19:34-52. Article 5 of the by-laws states that the screening committee shall consist of “representatives from each municipality, Democratic officials who hold office won in a General Election in all or any part of Morris County, and the Executive Committee.” Presumably the “Executive Committee” is the executive committee of the Morris County Democratic Committee. A comparison of the composition of the screening committee with that of the Democratic Committee demonstrates that the screening committee is really the alter ego of defendant. Both consist of municipal representatives and both contain the “executive committee” of the county committee. The label which defendant gives to a transaction does not determine its character. 405 Monroe Corp. v. Asbury Park, 70 N. J. Super. 293 (App. Div. 1961), rev’d on other grounds, 40 N. J. 457 (1963). The true test for evaluation of a transaction, in this instance the formation of a candidate screening committee, is the real purpose of the County Democratic Committee. Brodzinsky v. Pulek, 75 N. J. Super. 40 (App. Div. 1962), certif. den. 38 N. J. 304 (1962). A court of equity should implement the substance over form approach “to effectuate the underlying policy of the statute, which is regulatory in nature.” Kleinberg v. Schwartz, 87 N. J. Super. 216, 222 (App. Div. 1965), aff'd 46 N. J. 2 (1965).

In the present case the aim of the statute is to prevent interference by the county committee with the candidacies of persons running for party nomination. The screening committee vitiates this purpose.

The county committee has an obvious interest in which persons receive the nomination of the county party. To think otherwise would be naive. To effectuate this interest a screening committee was established with the purpose of endorsing candidates prior to the primary election. The language of N. J. S. A. 19:34-52 clearly prohibits such activity. This statute cannot bo given any other meaning. In interpreting statutory words, they are to be given their common usage. Ford Motor Co. v. N. J. Dept. of Labor and Industry, 5 N. J. 494 (1950). This rule of construction was reiterated more explicitly in Fiscella v. Nulton, 22 N. J. Super. 367 (App. Div. 1952):

If the legislative intendment is clear and unambiguous, the court will not "* * * indulge in a presumption, arising from extrinsic evidence, that the Legislature intended something other than what it actually expressed.” Bass v. Allen Home Improvement Co., 8 N. J. 219 (1951). “A construction that will render any part of a statute inoperative, superfluous or meaningless, is to be avoided. * * *”

See, In re Keogh-Dwyer, 106 N. J. Super. 567, 571 (Law Div. 1969), aff’d 54 N. J. 523 (1969).

Election statutes are to be tested like all other statutes, but with a leaning to liberality in view of the great public purposes for which they are intended. Sharrock v. Keansburg, 15 N. J. Super. 11 (App. Div. 1951); see In re Ross Petition, 116 N. J. Super. 178 (App. Div. 1971). “One of these purposes is to purify the polities of the State by preventing fraud and wrongdoing in the nominating procedure.” Sadloch v. Allan, 25 N. J. 118, 129 (1957). This legislative purpose is supported by past experience with the primary process. At one time party conventions provided the party nominees. However, because of public dissatisfaction with the political manipulation at conventions, primaries have replaced the convention procedure. See Ray v. Blair, 343 U. S. 214 (1952). The major reason for changing to the primary election is to prevent political manipulation by certain select members of the party. In New Jersey, the first election law was not passed until 1878. In 1903 a comprehensive law (L. 1903, c. 248), was enacted which established a new state policy of having fully regulated primaries. Stevenson v. Gilfert, 13 N. J. 496 (1953). As stated by Justice Jacobs:

The act contained numerous other regulatory provisions which need not be detailed here. They represented full legislative reeogni tion that primary elections were no longer matters of private concern to he dealt with hy party managers in any manner they chose but, on the contrary, were of public concern and required regulation in the public interest.” [at 500; emphasis added]

See Wene v. Meyner, 13 N. J. 185 (1953).

The Legislature, by preventing party committees from exerting their influence on the party membership, is safeguarding the right of individual voter participation in choice of party candidates. The selection of candidates is to be by primary vote and not by the committee. Rogers v. State Committee of Republican Party, 96 N. J. Super. 265 (Law Div. 1967). The courts therefore “refrain from an indulgence in any judicial action that refashions legislation regulating and facilitating the conduct of elections and which is calculated to secure the right of suffrage and the free expression of the choice of the voter.” Sharrock v. Keansburg, supra, 15 N. J. Super. 11, at 16.

There is no question but that primary elections are so far matters of public concern that they are proper objects of legislative control and that appropriate measures may be enacted. Nagler v. Stiles, 343 F. Supp. 415 (D. N. J. 1972); Briscoe v. Kusper, 435 F. 2d 1046 (7 Cir. 1970); see Sadloch v. Allan, supra; Wene v. Meyner, supra. The use of the police power by the State, subject to constitutional limitations, may be extended for the public good to constrain activity that is natural and otherwise right. Hopper v. Stack, 69 N. J. L. 562 (N. J. 1903). Regulation of the nominating process that produces candidates for public office is certainly a reasonable area of legislative involvement.

For the reasons stated above it is hereby declared that defendant Morris County Democratic Party’s .by-law creating a screening committee for the purpose of endorsing candidates for primary elections is in violation of N. J. S. A. 19:34-52 and therefore invalid. Defendant is permanently enjoined from organizing a candidate screening committee or any committee wdth the above stated purpose.

No costs.


author: Lane, J. S. C.

text:
    COAST CIGARETTES SALES, INC. AND MAJESTIC CIGARETTES SALES, INC., PLAINTIFFS, v. THE MAYOR AND CITY COUNCIL OF THE CITY OF LONG BRANCH; THE CITY CLERK OF THE CITY OF LONG BRANCH; CHIEF OF POLICE OF THE CITY OF LONG BRANCH AND THE SUPERVISOR OF LICENSES OF THE CITY OF LONG BRANCH, DEFENDANTS. COAST CIGARETTES SALES, INC. AND MAJESTIC CIGARETTES SALES, INC., PLAINTIFFS, v. THE MAYOR AND TOWNSHIP COMMITTEE OF THE TOWNSHIP OF MIDDLETOWN, THE TOWNSHIP CLERK OF THE TOWNSHIP OF MIDDLETOWN AND CHIEF OF POLICE OF THE TOWNSHIP OF MIDDLETOWN, DEFENDANTS.
    Superior Court of New Jersey Law Division
    Argued November 29, 1972
    Decided November 29, 1972.

      Mr. Peter W. Kenny argued the cause for plaintiffs (Messrs. Reussille, Cornwell, Mausner & Carotenuto, Attorneys).

      Mr. Robert L. Mauro argued the cause for defendants, The Mayor and City Council of the City of Long Branch, The City Clerk of the City of Long Branch, Chief of Police of the City of Long Branch and The Supervisor of Licenses of the City of Long Branch.

      Mr. John H. Deppeler, III, argued the cause for defendants, The Mayor and Township Committee of the Township of Middletown, The Township Clerk of the Township of Middletown and Chief of Police of the Township of Middletown (Mr. Peter P. Frunzi, Jr., Attorney).
   Lane, J. S. C.

These actions in lieu of prerogative writs challenging the validity of defendants’ ordinances requiring licensing and a license fee for plaintiffs’ cigarette vending machines are before the court on final hearing.

The issues set forth in the pretrial order are:

(1) Are the ordinances invalid on the ground that the field has been pre-empted by the Cigarette Tax Act, N. J. S. A. 54:40A-1, et seq?
(2) Is the charge of five dollars for each vending machine confiscatory ?

Plaintiffs are owners and distributors of cigarette vending machines. Coast Cigarettes Sales, Inc. has 26 machines in Long Branch and 15 in Middletown. Majestic Cigarettes Sales, Inc. has 43 machines in Long Branch and 67 machines in Middletown. Each plaintiff is required to pay to the State of New Jersey $5.00 per machine for a retail dealer’s certificate for each machine. In addition, Coast is required to obtain an annual wholesale dealer’s license at a fee of $250, while Majestic pays $350.00 annually for a distributor’s license. N. J. S. A. 54:40A-4.

Plaintiffs attack portions of Art. Ill “Vending Machines” of the Bevised Ordinances of the Township of Middletown as amended and supplemented, which provides in pertinent part:

§ 8.29 License required.
It shall not be lawful within the limits of the Township of Middle-town for any person to operate any amusement, vending, novelty or other machine unless such person shall obtain a license for such machine and pay the license therefor as hereinafter mentioned and set forth.
§ 8.30 License fees.
The license fee for such amusement, vending, novelty or other kind of machine shall be as follows:
For all large music box machines the sum of $25.00
For all pin ball machines the sum of $25.00
For all machines where the coin is deposited in order to operate the same is $0.01 (one), the sum of $2.00
For all other machines the sum of $5.00.

Plaintiffs also attack portions of Chapter VII “Mercantile Licenses” of the Revised General Ordinances of the City of Long Branch, which provides in pertinent part:

7-2.1 (a) It shall be unlawful for any person to commence or carry on any profession, vocation, trade, business, calling or occupation specified in this section without first having obtained a license from the city to do so, or without complying with any and all provisions concerning the same contained in this section, or in any other ordinance adopted by the city.
7-2.8 (d) Schedule of fees
* * *
Automatic cigarette vending machines, five ($5,00) dollars.

Plaintiffs demand judgment declaring that the licensing and fee requirements of these two ordinances are confiscatory and that defendants in imposing them have legislated in an area pre-empted by the Cigarette Tax Act, N. J. S. A. 54:40A-1, et seq. under which plaintiffs have already received licenses and paid fees for their vending machines.

Plaintiffs argue that the licensing and fee provisions of the two ordinances are invalid as an attempt at municipal regulation in an area pre-empted by the State in its adoption of the Cigarette Tax Act, N. J. S. A. 54:40A-1, et seq.

Municipalities have no powers other than those delegated to them by the Legislature and by the State Constitution. Ringlieb v. Tp. of Parsippany-Troy Hills, 59 N. J. 348, 351 (1971); Wagner v. Newark, 24 N. J. 467, 474 (1957). N. J. S. A. 40:52-1, et seq., grants to a municipal governing body the power to require licenses for certain broad categories of activity. N. J. S. A. 40:48-2 is a sweeping grant of legislative power to the municipality:

Any municipality may make, amend, repeal and enforce such other ordinances, regulations, rules and by-laws not contrary to the laws of this state or of the United States, as it may deem necessary and proper for the good government, order and protection of persons and property, and for the preservation of the public health, safety and welfare of the municipality and its inhabitants, and as may be necessary to carry into effect the power’s and duties conferred and imposed by this subtitle, or by any law.

However, there is an implied limitation upon broad grants of power to local municipalities. Such powers relate to matters of local concern which may be determined to be necessary and proper for the good and welfare of local inhabitants. They do not extend to matters involving state policy or in the realm of affairs of general public interest and applicability. The needs of such matters inherently in need of uniform treatment do not vary locally and municipal regulation thereof would not be useful and might, by diverse treatment, cause substantial harm. Summer v. Township of Teaneck, 53 N. J. 548, 552-553 (1969); In re Public Service Electric and Gas Co., 35 N. J. 358, 370-371 (1961); Wagner v. Newark, supra, 24 N. J. at 478.

Assuming that a particular matter is not “inherently in need of uniform treatment,” a municipality may be precluded from regulating a particular matter, which it otherwise could, because the Legislature has pre-empted the field. “ ‘Attached to every municipal ordinance there is an implied condition that it must yield to the predominant power of the State.'” Ringlieb v. Tp. of Parsippany-Troy Hills, supra, 59 N. J. at 352; Wagner v. Newark, supra, 24 N. J. at 480. Absent an express exclusion from the field by the State the question of pre-emption must be determined by ascertaining the legislative intention on the facts of each case. State v. Ulesky, 54 N. J. 26, 29 (1969). See Ringlieb v. Tp. of Parsippany-Troy Hills, supra, 59 N. J. at 348.

N. J. Const., Article IV, Section VII, paragraph 11 establishes a presumption of validity of ordinances enacted by municipalities. This requires a liberal construction of municipal ordinances, and therefore a finding of pre-emption must be clear. Kennedy v. City of Newark, 29 N. J. 178, 187 (1959).

To prevail on a claim of pre-emption, a plaintiff may show that there exists an unresolvable conflict between the ordinance and the statute. Summer v. Township of Teaneck, supra, 53 N. J. at 554; Chester Tp. v. Panicucci, 116 N. J. Super. 229, 234 (App. Div. 1971). Alternatively, a plaintiff can show pre-emption though no conflict exists by demonstrating an intent on the part of the Legislature to completely occupy the area being controlled to the exclusion of the municipalities. Summer v. Teaneck, supra, 53 N. J. at 554; State v. Ulesky, supra, 54 N. J. at 29; Chester Tp. v. Panicucci, supra, 116 N. J. Super. at 234. Absent a showing of an intent to totally pre-empt, a municipality pursuant to its delegated powers can deal with specific local problems by expanding control in that area so long as there is no conflict with the legislative proscription. Fred v. Mayor and Council, Old Tappan Borough, 10 N. J. 515, 521-522 (1952); Chester Tp. v. Panicucci, supra, 116 N. J. Super. at 235; Kligman v. Lautman, 98 N. J. Super. 344, 355 (App. Div. 1967), aff’d 53 N. J. 517 (1969). Even if an ordinance on its face not in conflict could conflict with a particular statutory scheme in certain applications, the ordinance is not to be declared invalid absent any intent to pre-empt the total field by the Legislature. Kennedy v. City of Newark, supra, 29 N. J. at 187; Sayreville v. Pennsylvania R. R. Co., 26 N. J. 197, 200, appeal dismissed 358 U. S. 44, 79 S. Ct. 43, 3 L. Ed. 2d 45 (1958); Chester Tp. v. Panicucci, supra, 116 N. J. Super. at 235.

N. J. S. A. 54:40A-3 provides:

After the effective date of this act, no person shall engage in, or conduct the business of manufacturing, purchasing, selling, consigning or distributing cigarettes in this State, nor shall any person acquire unstamped cigarettes for consumption, storage or use in this State without having first obtained the appropriate license for that purpose as prescribed by this act.

N. J. S. A. 54:40A-4 provides in detail for the issuance of licenses for distributors, manufacturers, manufacturers’ representatives, wholesale dealers, retail dealers, consumers and vending machines and fixes the fee therefor.

N. J. S. A. 54:40A-6 provides:

Any license .required by this act shall be in addition to any and all' other licenses which may be required by law.

Superficially these provisions which require state licensing but do not prohibit licensing requirements under other laws might suggest that municipal licenses for vending machines may be required in conjunction with state licenses. However, a court must not be guided by a single sentence or member of a sentence but must look to the provisions of the whole act and its object and policy, as well as to statutes in pari materia. Brewer v. Porch, 53 N. J. 167, 174 (1969).

The Cigarette Tax Act (N. J. S. A. 54:40A-1, et seq.) and the Unfair Cigarette Sales Act (N. J. S. A. 56:7-18, et seq.) are in pari materia. Lane Distributors, Inc. v. Tilton, 7 N. J. 349, 357 (1951). When the two acts were passed in 1948, the accompanying statements indicated that the purpose of the Unfair Cigarette Sales Act was to prohibit the sale of cigarettes at less than cost because the use of cigarettes as a “loss-leader” is an unfair and deceptive practice. The purpose of the Cigarette Tax Act is to be found in its title which was:

AN ACT imposing a tax on tile sale, possession for sale, use, consumption or storage for use of cigarettes within the State; providing for the licensing of distributors, dealers and consumers; providing for the control of the transportation of cigarettes in and through the State; defining certain words for the purposes of the act; prescribing- the methods of collecting the tax imposed; providing penalties for violations; and making certain violations misdemeanors.

In Lane Distributors, Inc. v. Tilton, supra, the Supreme Court held certain definitions in both acts unconstitutional. They were amended to conform with that opinion in 1952. L. 1952, c. 246; L. 1952, c. 247. Among the stated purposes of these amendments was an attempt to tighten the Cigarette Tax Act “with regard to the illegal smuggling of cigarettes into the state.” The preamble to the amended Unfair Cigarette Sales Act noted that:

Whereas, Unfair, dishonest, deceptive, destructive and fraudulent business practices existing in transactions involving- the sale of, offer to sell, or inducement to sell, cigarettes in the retail and wholesale trades in this State have been and are demoralizing and disorganizing said trades; aud
Whereas, The advertising, offering for sale, or sale of cigarettes below cost in the retail or wholesale trade with the intent of injuring competitors or destroying or substantially lessening competition, is an unfair and deceptive business practice; and
Whereas, Such practices adversely affect the collection of taxes from the sale of cigarettes and license fees imposed on distributors, wholesalers, retailers and others engaged in the sale of cigarettes; and
Whereas, It is hereby declared to be the policy of this State to promote the public welfare by prohibiting such sales, and it is the purpose of this act to carry out that policy in the public interest; * * *. [L. 1952, c. 247]

It seems clear that the Legislature’s intent was to deal with a state-wide problem and to protect the general welfare of all citizens of New Jersey from the various misuses to which the sale and distribution of cigarettes have proven subject. Such problems as the control of smuggling and deceptive trade practices, and the regulation of those who distribute and sell cigarettes throughout the State require uniform, centralized treatment which it appears these two acts were intended to provide.

Defendants argue that this interpretation of the scope of the State’s powers in this area conflicts with the provisions of N. J. S. A. 40:52-1, the source of municipal licensing power, which provides that a municipality may license a number of specified businesses and structures. After twelve paragraphs referring to specific situations the Act provides:

Nothing in this chapter contained shall be construed to authorize or empower the governing body of any municipality to license or regulate any person holding a license or certificate issued by any department, board, commission, or other agency of the State; provided, however, that the governing body of a municipality may make, amend, repeal and enforce ordinances to license and regulate real estate auctioneers or real estate brokers engaged in selling at auction and their business as provided in this section despite the fact that such real estate auctioneers or brokers may be licensed by the New Jersey Real Estate Commission and notwithstanding the provisions of this act or any other act.

In the detailed list of activities which may be licensed by a municipal governing body, cigarette vending machines are conspicuously absent. N. J. S. A. 40:52-1 does not authorize a municipality to license all businesses but only those described in the statute. See, e. g., Gilbert v. Town of Irvington, 20 N. J. 432, 435-436 (1956); Salomon v. Jersey City, 12 N. J. 379, 389-390 (1953); Mogelefsky v. Schoem, 90 N. J. Super. 49, 57 (App. Div. 1966), modified 50 N. J. 588 (1967); Coculo v. Trenton, 85 N. J. Super. 523, 526 (App. Div. 1964); Tonsorial Inc. v. City of Union City, 115 N. J. Super. 33, 37-38 (Law Div. 1971); Devine v. Mantua Tp., 28 N. J. Super. 299, 305 (Law Div. 1953); State v. Stockl, 85 N. J. Super. 591, 593 (Cty. Ct. 1964); Belmar v. Berube, 63 N. J. Super. 69, 74 (Cty. Ct. 1960). The phrase “all other kinds of business” in subsection (g) is not to the contrary. Salomon v. Jersey City, supra, 12 N. J. at 389.

The final paragraph of N. J. S. A. 40:52—1, which expressly prohibits municipalities from licensing anyone already licensed by an arm of the State, further invalidates defendants’ ordinance requirements. Defendants argue that this proviso stands in direct conflict with N. J. S. A. 54:40A-6, allowing the State license to be required in addition to other licenses.

Reconciliation of apparently conflicting statutes to conform to the spirit of the legislation as a whole is a common exercise of the judicial interpretive function. Clifton v. Passaic County Board of Taxation, 28 N. J. 411, 421 (1958). The Legislature is presumed to be familiar with its own enactments and to have passed or preserved cognate laws with the intention that they be construed to serve a useful and consistent purpose. Courts have the duty of reconciling apparently conflicting statutes so as to give effect to both expressions of the legislative will. State v. Federanko, 26 N. J. 119, 129-130 (1958). Statutes cannot be read in a vacuum void of relevant historical and policy considerations and related legislation. Matawan Borough v. Monmouth Cty. Tax Bd., 51 N. J. 291, 299 (1968).

The Legislature provided that the State license would exist in addition “to any and all other licenses which may be required by law” at a time when it was presumed to know that a law already in effect expressly excluded cigarette vending machines from a detailed enumeration of activities which the municipalities could license. In this historical context and in light of state policy considerations the “other licenses” referred to are those which other state agencies or the federal government may impose for the general welfare. Permits are required of manufacturers and export warehouse proprietors of tobacco products at the federal level. 26 U. S. C. 5712. Tobacco products are subject to federal regulation while in interstate commerce, just as they are the concern of the State when they are smuggled into intrastate commerce. They are of medical concern at both state and federal levels. See, e. g., N. J. S. A. 9:5-1, and the stiffening federal requirements for cigarette advertising, 15 U. S. C. 1331, et seq. In sum, cigarettes are an actual and potential target of state and federal regulation in many areas. It is concluded that the Legislature foresaw this trend in enacting N. J. S. A. 54:40A-6 and was not referring to municipal licensing.

It is the court’s duty to construe a statute as it is written and to enforce the legislative will as written, and not according to some unexpressed intention. Dacunzo v. Edgye, 19 N. J. 443, 451 (1955); Schmoll v. Creecy, 104 N. J. Super. 126, 138 (App. Div.), rev’d on other grounds 54 N. J. 194 (1969). The court cannot say that N. J. S. A. 54:40A-6 represents even an unexpressed intent on the part of the Legislature to extend the municipality’s licensing powers which are so precisely limited in N. J. S. A. 40 :52-1. Safeway Trails, Inc. v. Furman, 41 N. J. 467 (1964) is not applicable.

In holding that a municipality does not have authority to require licenses for cigarette vending machines, the court is not saying that the municipality may not have the power to regulate such machines at all. In Coculo v. Trenton, supra, Judge Kilkenny notes:

The limitation upon the city's right to license a business or profession when a person holds a license from the State, or one of its boards or agencies, to carry on such a business or profession, does not render such a state licensee immune from other municipal ordinances statutorily authorized and duly adopted to promote the public health, safety, morals or welfare. * * * [85 N. J. Super. at 527]

See Mogelefsky v. Schoem, supra, 50 N. J. at 597-598. Thus, defendants may have the necessary police power under N. J. S. A. 40:48-2 to regulate plaintiffs’ machines so long as they can show a need to do so for the public welfare, and so long as they do not require a license and consequently a license fee. No such showing has here been made.

The Cigarette Tax Act provisions for state licensing of cigarette vending machines have pre-empted the field in which defendants’ ordinances have been adopted. Even if this were not the case, the municipal licensing power does not include a delegation of authority to license cigarette vending machines.

Plaintiffs argue that even if it were concluded that the municipalities may require licenses for cigarette vending machines, they may not charge license fees for such machines purely for revenue purposes.

N. J. S. A. 40:52-2 provides:

The governing body may fix the fees for all such licenses, which may he imposed for revenue, and may prohibit all unlicensed persons and places and vehicles, businesses and occupations from acting, being used, conducted or carried on; impose penalties for violation of ordinances providing for licenses, and revoke any license for sufficient cause and after notice and hearing. [Emphasis added.]

It has been held that the primary purpose of this provision, in conjunction with N. J. S. A. 40:52-1, is to protect the general welfare, and only secondarily to raise revenue. It is not a delegation of general taxing power. Salomon v. Jersey City, supra, 12 N. J. at 390.

In the present eases the Long Branch ordinance states explicitly that its sole purpose is to raise revenue, while counsel for Middletown concedes that the Middletown ordinance was adopted for the same purpose. Such a purpose alone is not compatible with N. J. S. A. 40:53-1 by its terms or as interpreted by the Supreme Court, nor is it permitted under the general police powers of N. J. S. A. 40:48-2. Garden State Racing Ass’n v. Cherry Hill Tp., 42 N. J. 454, 461 (1964). Defendants’ fees have therefore been imposed without legislative authorization.

The provisions of each ordinance insofar as they apply to cigarette vending machines are invalid. Defendants will be enjoined from enforcing such provisions in connection with cigarette vending machines.


text:
    WALTER L. BARKLEY, PLAINTIFF-APPELLANT, v. FOSTER ESTATES, INC., DEFENDANT-RESPONDENT, CROSS-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued November 29, 1971
    Decided December 13, 1971.
    Before Judges Conford, Matthews and Fritz.

      Mr. Peter Shebell, Jr. argued the cause for appellant (Mr. Thomas F. Shebell, attorney; Mr. Andrew P. Vecchione, on the brief).

      Mr. Granville D. Magee argued the cause for respondent (Messrs. Mirne, Nowels, Tumen, Fundler & Magee, attorneys).
   Per Curiam.

The judgment of the Law Division is affirmed. Plaintiff failed to prove that defendant or a predecessor in title constructed the sidewalk on which he fell. Orlik v. DeAlmeida, 45 N. J. Super. 403 (App. Div. 1957), Murray v. Michalak, 58 N. J. 220 (1971).

Affirmed.


text:
    JOHN W. GOTSCH, PLAINTIFF-RESPONDENT, v. GAIL GOTSCH, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Submitted October 3, 1972
    Decided November 17, 1972.

      Before Judges Labrecque, Kolovsky and Matthews.

      Messrs. Kavesh & Basile, attorneys for appellant (Mr. Irwin Kavesh, on the brief).

      Messrs. Greenblatt and Greenblatt, attorneys for respondent (Mr. George J. Stillwell, on the brief).
   Per Curiam.

On July 5, 1970 plaintiff was injured when an automobile operated by defendant in which he was a passenger struck a stone wall. Plaintiff and defendant were married to each other on August 22, 1970.

The undisputed facts disclose that plaintiff retained counsel in the matter on August 17, 1970, and that counsel contacted plaintiff’s insurance carrier on that day. The within action was instituted by plaintiff on September 8, 1970.

Defendant moved for summary judgment on August 17, 1971. Her motion was premised on the decision of the Supreme Court in Darrow v. Hanover Tp., 58 N. J. 410 (1971), which held (at 420) that the abolition of inter-spousal immunity determined in Immer v. Risko, 56 N. J. 482 (1970), was “available only to persons suffering injuries in automobile accidents occurring after July 10, 1970, the date Immer was decided.” The motion was argued and decided before the decision of another part of this court in Berry v. Berry, 120 N. J. Super. 452 (App. Div. 1972), which upheld a dismissal of a similar action, holding (at 455) that the defense of interspousal immunity depended upon “the status of the parties when the cause of action is judicially determined — not when the cause of action accrued or suit was commenced.”

Judge Staller in the Law Division denied defendant’s motion, finding that the policy reasons for prospectivity set forth in Darrow were absent here.

We are constrained to disagree with the holding of our brethren in Berry, above, and affirm substantially for the reasons set forth in the opinion of Judge Staller, 121 N. J. Super. 479.

The Supreme Court in Darrow decided against following the traditional view that the overruling of a judicial precedent should be retrospective (58 N. J. at 413) because of two basic policy considerations: (1) that there had been justifiable reliance on earlier decisions in this State upholding interspousal immunity (at 415), and (2) that prospectiveness would foster stability since it would avoid the necessity of opening claims which might have gone stale because of a failure to investigate promptly (at 419). It is readily apparent that neither “consideration” has any bearing on this case. The insurance carrier here involved was notified of plaintiff’s injuries promptly after the accident and prior to the marriage, and had discussed the matter with plaintiff’s attorney. The action was instituted promptly thereafter. The motion for summary judgment was not made until almost one year later, and, then, only because of the decision in Darrow. There was obviously no reliance and no prejudice.

Affirmed.


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

text:
    VICTOR TORRES, PLAINTIFF-APPELLANT, v. ALBERT WAGNER, DIRECTOR DIVISION OF CORRECTION AND PAROLE, DEPT. OF INSTITUTIONS AND AGENCIES, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued November 20, 1972
    Decided December 5, 1972.

      Before Judges Collester, Leonard and Halpern.

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

      Mrs. Virginia Long Annich, Deputy Assistant Attorney General, argued the cause for respondent (Mr. George F. Kugler, Jr., Attorney General of New Jersey, attorney; Mr. G. Robert Wills, Deputy Attorney General, on the brief).
   The opinion of the court was delivered by

Collester, P. J. A. D.

This is an appeal by Yietor Torres, an inmate of the New Jersey State Prison, from a decision of the Division of Correction and Parole which denied his request that time spent by him in the county jail awaiting trial be considered in computing commutation time to be credited against the unserved portion of his sentence. The Division based its decision on N. J. S. A. 30:4—140 and Lipschitz v. State, 43 N. J. Super. 522 (App. Div. 1957).

N. J. S. A. 30:4-140 provides that certain credits against the maximum and minimum term of a sentence imposed upon any person committed to a state correctional institution shall be granted for continuous orderly deportment. The credits are allowed on a progressive or accelerated basis, increasing in direct ratio to the sentence. In case of any flagrant misconduct of the inmate, the board of managers may declare a forfeiture of the time previously remitted, either in whole or in part, as to them shall seem just. The statute specifically provides:

No time credits shall be' calculated as provided for herein on time served by any person in custody between his arrest and the imposition of sentence.

In Lipschitz v. State, supra, this court rejected the argument that an inmate of the State Prison was entitled to commutation credit for time spent in the county jail and held that a prisoner is entitled to such credits against his sentence only for the period of his confinement in the State Prison.

Appellant contends that the statute violates the equal protection clause of the Fourteenth Amendment because it impermissibly discriminates between a wealthy man and a poor man. He argues that since eommuntation time credits are not granted until a person is committed to State Prison, a poor man, who is unable to raise bail and is confined to the county jail until his trial and conviction, will spend more time in confinement than the wealthier man who had been released on bail pending sentence.

The constitutional mandate for equal protection does not mean that a statute must reach every class to which it might be applied. The Legislature has wide discretion in the creation and recognition of classes for different treatment. Equal protection does not require that all persons be dealt with identically. If there is a reasonable basis for the recognition of separate classes, and the disparate treatment of the classes has a rational relation to the object sought to be achieved by the Legislature, the equal protection clause is not violated. New Jersey Chap. American Institute of Planners v. New Jersey State Bd. of Prof. Planners, 48 N. J. 581, 601 (1967), app. dism., cert. den. 389 U. S. 8, 88 S. Ct. 70, 19 L. Ed. 2d 8. See also McGowan v. Maryland, 366 U. S. 420, 425-426, 81 S. Ct. 1101, 6 L. Ed. 2d 393 (1961); State v. Smith, 58 N. J. 202, 207 (1971).

The distinction between persons sentenced to State Prison and those confined to the county jail was fully discussed in Lipschitz v. State, supra. A person held in the county jail while awaiting trial is confined because he has been unable to raise bail or circumstances do not warrant a release on his own recognizance. Such persons are under the custody of either the sheriff, N. J. S. A. 30:8—7, or the board of Chosen freeholders, N. J. S. A. 30:8-19.

Persons committed and confined in the State Prison are in the custody of the Principal Keeper, consistent with law and the rules and regulations of the Board of Managers. N. J. S. A. 30:4-6. The granting or forfeiture of commutation credits provided for in N. J. S. A. 30:4—140 requires the exercise of judgment by the State Prison authorities based upon their observation and evaluation of the prisoner’s conduct, and they can exercise such judgment only when the prisoner is in their custody at the State Prison.

The penological objective of N. J. S. A. 30:4-140 is to provide an early release to persons sentenced to State Prison, an objective that has no relation to persons confined in the county jail awaiting trial. We think that there is a reasonable basis for the recognition by the Legislature of persons sentenced to State Prison as a class separate and apart from those held in the county jail, and that there is a rational relation to the objective sought to be attained by the statute. We are satisfied and hold that N. J. S. A. 30:4-140 does not violate the equal protection clause of the Fourteenth Amendment. We deem Tate v. Short, 401 U. S. 395, 91 S. Ct. 668, 28 L. Ed. 2d 130 (1971), and Williams v. Illinois, 399 U. S. 235, 90 S. Ct. 2018, 26 L. Ed. 2d 586 (1970), relied upon by appellant to be inapposite.

Affirmed.