author: Lora, J. A. D.

text:
    DAVIS ACOUSTICAL CORP., PLAINTIFF-RESPONDENT, v. LOUIS SKULNIK, DEFENDANT, AND MARTIN SKULNIK, THIRD-PARTY APPELLANT.
    Superior Court of New Jersey Appellate Division
    Submitted October 29. 1974-
    Decided November 14, 1974.

      Before Judges Collester, Lora and Handler.

      Messrs. Krieger and Chodash, attorneys for third party-appellant (Mr. Mendel White on the brief).

      Messrs. Rosenblum, and Rosenblum, attorneys for respondent (Mr. Edward G. Rosenblum on the brief).
   The opinion of the court was delivered by

Lora, J. A. D.

Third-party appellant Martin Skulnik appeals from an order dated July 30, 1973 which denied modification of an order for discovery granted ex parte on December 22, 1972.

On May 4, 1967 plaintiff Davis Acoustical Oorp., obtained a, judgment in the amount of $55,880.10 against defendant Louis Skulnik. On December 22, 1972 plaintiff secured an ex parte order for discovery compelling Martin Skulnik, son of defendant Louis Skulnik, to produce certain documents. Martin Skulnik then moved to modify the order. On July 30, 1973 the motion was denied.

The record discloses that during supplementary proceedings the judgment-debtor testified that his son Martin accumulated $10,000 to $15,000 working while in college which he used to start United Steel Products Company in Hempstead, Long Island, New York. He further deposed that the East Paterson house in which he resided was owned by his son, who was given the house as a gift. In his petition for discovery the judgment creditor’s attorney alleged these circumstances raised “a strong suggestion * * * that the transactions * * * may have been of a fraudulent nature.”

The court thereupon entered an ex parte order compelling Martin Skulnik to attend a discovery proceeding and to produce “any and all correspondence, cancelled checks, checkbooks, passbooks for savings accounts or bank accounts, and any and all other documentation which he possesses to establish the purchase of the United Steel Products Co. with his own funds” and “documents reflecting his ownership of the premises, 2 Donner Avenue, East Paterson, New Jersey as well as statement of closing title, cancelled checks and any and all other evidence indicating the consideration paid by him therefor.”

Third-party appellant moved to modify the order for discovery by striking said provisions of the order and permitting him to be examined only “with respect to his father’s assets, but not with respect to the son’s.”

During oral argument on the motion plaintiff’s attorney pointed out that the son had formed United Steel Products within one year after the judgment was entered against his father. The company moved to New Jersey in 1971, where its machinery alone has an estimated worth of $150,000; that it does business with the steel company of which the father is an officer and director. Plaintiff’s attorne3r further asserted the debtor had testified falsely during depositions that he was not connected with any corporation in New Jersey or elsewhere, whereas the records of the Secretary- of State of New Jersey revealed lie was the president and director of Shelf-It Steel Products, Inc. at that time.

Additionally, it was asserted that the debtor resides in a house at 2 Donner Avenue, East Paterson, title to which is in his son; that on depositions the debtor testified that he and his wife had purchased the house in 3955, transferred it to his brother-in-law in 1958, who gave it to his daughter in 1964 as a wedding present, and who, in turn, gave it to his son Martin Skulnik as a gift. Martin’s affidavit stated the house was transferred to him in 3970 by his mother, who was the sole owner thereof, and all the other property in question belonged to him.

Third-party appellant argued, as here, that the court lacked jurisdiction over him; that discovery of a person’s assets could not be granted simply because ho resided in New Jersey; that the order should bo modified to the extent requested in his notice of motion. Tie further argued that plaintiff was required to show a transfer of assets before discovery of those assets was proper; that the scope of the discovery was unduly oppressive and harassing and in violation of the Fourteenth Amendment and his constitutional rights of due process and equal protection of the law.

In his written opinion dated June 28, 1973 denying third-party appellant’s motion the trial judge stated that plaintiff had validly raised a question concerning the relationship of Louis and Martin Skulnik with respect to the properties noted, and the discovery sought was consistent with the liberal interpretation of the court rules traditionally supplied by the courts.

Under our rules of practice the court has the power to subject a third party to judicial process for discovery in aid of execution. Broad authorization to this effect is provided by R. 4:59-1(d) and R. 6:7-2(a). Congdon v. Jersey Construction Co., 55 N. J. Super. 571, 582 (App. Div. 1959).

A judgment creditor is afforded such discovery to assist him in locating assets on which execution can issue or assets that have been fraudulently transferred or are otherwise beyond the reach of execution. Monticello Tobacco Co., Inc. v. American Tobacco Co., 12 F.R.D. 344 (S.D.N.Y. 1952), aff'd on merits, 197 F. 2d 629 (2 Cir. 1952), cert. den. 344 U. S. 875, 73 S. Ct. 168, 97 L. Ed. 678 (1958); 7 Moore’s Federal Practice, § 69.05(1) (1974); 12 Wright and Miller, Federal Practice and Procedure, § 3014 (1973). While the scope of examination is broad, third persons may be examined only as to assets of the judgment debtor and cannot be required to make disclosure of their individual assets. Burak v. Scott, 29 F. Supp. 775, 776 (D. C. D. C. 1939); 12 Wright and Miller, Federal Practice and Procedure, § 3014 at 72.

However, a third party may not avoid discovery by merely submitting an affidavit asserting his ownership over the property in dispute. De Lepomme v. Luquer, 39 N. Y. S. 2d 283 (Sup. Ct. 1943); In re De Ponce De Leon, 63 App. Div. 41, 71 N. Y. S. 380 (App. Div. 1901); First National Bank v. Gow, 139 App. Div. 576, 124 N. Y. S. 449, 451 (App. Div. 1910). Martin SkulniFs assertion of ownership begs the very issue at hand, for the purpose of the discovery proceedings is to determine who, in fact, owns the disputed property.

The grant or denial of a petition for discovery rests within the sound discretion of the trial judge. It is not necessary to present positive proof that the debtor has an interest in property held by a third person. It is sufficient if enough information is furnished to satisfy the judge to whom application is made. 33 C. J. S. Executions § 362 at 667, § 365(f) at 674. Cf. Peoples Bank of Buffalo v. Brown, 112 F. 652, 653 (3 Cir. 1902); Herron v. Blackford, 264 F. 2d 723, 725 (5 Cir. 1959).

Hei*e, sufficient information was furnished by the judgment creditor to raise a reasonable doubt of the ownership of the properties in question and to raise a sufficient possibility that the judgment debtor had interests in the properties. These factors would render the issue of such ownership and interest amenable to clarification or substantiation through reasonable discovery. The trial judge’s ruling in this respect is consistent with the liberal purpose and spirit of discovery under the court rules and does not constitute an abuse of his discretion. Lakewood Trust Co. v. Fidelity & Deposit Co., 81 N. J. Super. 329 (Law Div. 1963).

In reaching this conclusion we are not unmindful that there is authority that a direct action against the third party may be appropriate. See, e. g., Lowther v. Lowther, 110 App. Div. 122, 97 N. Y. S. 5 (App. Div. 1905). However, in our view, under the circumstances of this case, the trial judge’s order for discovery was well within the bounds of sound discretion.

We have also sua sponte considered the factor of plaintiff’s delay in seeking discovery of the third-party appellant. Generally, supplementary proceedings may be instituted at any time during the life of a judgment. Some jurisdictions so provide by statute. See, e.g., Bank of United States v. Rosengarten, 175 Misc. 677, 24 N. Y. S. 2d 647 (Sup. Ct. 1941); Kahigas v. Hannigan, 84 N. Y. S. 2d 30 (Sup. Ct. 1948). In such jurisdictions it has been held that supplementary proceedings for examination of a third party are maintainable as to all existing judgments not barred by the statutory limitation of twenty years. Gotham Nat. Bank of New York v. Strunsky, 162 Misc. 673, 293 N. Y. S. 961 (Sup. Ct. 1936). Although we are aware of no New Jersey statutes governing such supplementary proceedings, we are of the opinion they may be brought so long as the judgment remains viable.

Our review of the record satisfies us the trial judge properly weighed the respective equities of the plaintiff vis-a-vis those of the third-party appellant in his determination of the latter’s motion to modify the ex parte order previously issued by the court.

As stated in Caisson Corp. v. County West Building Corp., 62 F. R. D. 331, 335 (D. C. E. D. Pa. 1974) :

There is no doubt that third parties can be examined in relation to the financial affairs of the judgment debtor. The appropriate manner to afford third parties protection is not to require that questions be phrased in a legalistieally conclusory manner but rather to allow questions as to their personal activities, within limits, yet requiring some showing of the relationship that exists between the judgment debtor and the third party from which the court on a motion for a protective order can determine whether the examination has a basis. We think that this is the appropriate manner for balancing the potentially conflicting legitimate interests both of parties in satisfying judgments, in light of the difficulty of such task at times, and of third parties in protection from baseless harassment. Cf., Capital Co. v. Fox, 85 F. 2d 97 (2 Cir. 1936). We think that, in fact, both the Burak and Montieello eases are consistent with this approach and specifically that Burak does not support the deponent’s position in this case.

The inquiries permitted by the trial judge’s order are relevant with respect to whether the properties involved may be considered assets of the judgment debtor. The thrust of the discovery is directly related to an examination of assets of the judgment debtor. We do not anticipate that in the execution of the order there will be an abuse of its terms or an untrammeled investigation of the affairs of the third party.

Certainly appellant is entitled to be represented by counsel in such discovery proceedings and, if it is perceived that inquiries go beyond the proper scope of the order, objection can be made and the matter resolved at that juncture by the trial court.

Affirmed.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    ROCHESTER SANDERS, APPLICANT-APPELLANT, v. DIVISION OF MOTOR VEHICLES, RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued November 6, 1974 —
    Decided November 19, 1974.

      Before Judges Matthews, Fritz and Botter.

      Mr. I. Jacob Weingarten argued the cause for appellant (Mr. Peter A. Buchsbaum, attorney).

      Miss Sherrie L. Gibble, Deputy Attorney General, argued the cause for respondent (Mr. William F. Hyland, Attorney General of New Jersey, attorney; Mr. Stephen Skillman, Assistant Attorney General, of counsel).
   Per Curiam.

In December 1973, after a bearing on notice of a proposed suspension, the Director of the Division of Motor Vehicles suspended appellant’s right to obtain a special bus and school bus driver license, the disqualifying reason being his conviction for assault and battery within three years. The period of suspension in the order was “indefinite and until January 10, 1976, at which time you may apply for a rehearing and re-instatement of your bus driver license privilege.” N. J. S. A. 39:3-10.1 denies the right of any person to drive certain buses and school buses unless specially licensed by the Director of the Division of Motor Vehicles, establishes certain qualifications for such license and authorizes the Director to adopt rules and regulations to fulfill the purposes of the section.

The regulation then in effect, N. J. A. C. 13 :21 — 14.9 (a) 12 (i) (3), provided that the Director shall not issue or shall suspend a bus driver license if the applicant or holder has a disqualifying criminal record, defined to include a conviction within three years preceding the date of application for “crimes involving the use of force or the threat of force to or upon persons or property, such as armed robbery, assault and arson * * (Emphasis added).

In January 1973 defendant was convicted of simple assault and battery upon a juvenile and received a suspended jail term and a fine of $10 and court costs. Defendant has not urged that the regulation was not intended to embrace disorderly persons offenses involving the use of force, and the Director reasonably interpreted his own regulation to include such an offense as assault and battery.

On appeal defendant urges that the refusal to issue the bus driver’s license to him denies his right to work guaranteed by the Fourteenth Amendment. We disagree. The State’s police authority exercised by the Director of the Division of Motor Vehicles embraces the right to impose reasonable restrictions on the issuance of licenses for various occupations in order to protect the public health and safety. Ferguson v. Skrupa, 372 U. S. 726, 83 S. Ct. 1028, 10 L. Ed. 2d 93 (1963); Brazee v. Michigan, 241 U. S. 340, 36 S. Ct. 561, 60 L. Ed. 1034 (1916) ; see Schware v. Board of Bar Examiners, 353 U. S. 232, 77 S. Ct. 752, 1 L. Ed. 2d 796 (1957). We find the regulation in question a reasonable exercise of state authority.

Nor do we find that the Director violated defendant’s procedural due process rights in this ease by reference to defendant’s criminal record in other respects, although not included in the notice of proposed suspension. The Director’s suspension was based upon the conviction in question, which was the subject matter of the notice of proposed suspension, since it occurred within three years of the date of application. In the proceedings before the Director, appellant maintained that the regulation should not be applied to disqualify appellant since the offense was minor and he had rehabilitated himself, as indicated by the discharge from supervision “with improvement” by the Essex County Probation Department. See N. J. S. A. 2A:168A — 2, dealing with the issuance of licenses to rehabilitated persons previously convicted of a crime or disorderly persons offense.

In response to that argument the Director reviewed appellant’s extensive prior criminal record and found that he was “hard pressed to arrive at any equitable decision that respondent has, indeed, been rehabilitated.” Therefore, the Director refused to “waive” the regulations as they applied to appellant. At this juncture appellant contends that his record of conviction was not properly placed before the Director and, therefore, should not have been considered by him. However, under Evid. R. 9(2), applicable to hearings before administrative agencies (Evid. R. 2), judicial notice may be taken of the records of any court of this State or of any federal court sitting in or for this State. Defendant’s record of convictions deals exclusively with convictions in New Jersey courts. In any case, since appellant has not asserted any error in the record of convictions, we find no basis for reversing simply to afford him the opportunity of presenting mitigating contentions with respect thereto. Notwithstanding the foregoing, better practice of the Director would have been to put appellant on notice of his intention to consider appellant’s prior record with respect to his claim of rehabilitation or other basis for not applying the revocation sanction of the regulation against him. It appears, however, that the Director found that the recent conviction of an assault upon a youngster was sufficiently disqualifying for the proposed license apart from appellant’s prior criminal record. We find this conclusion reasonable and not overcome by appellant.

Accordingly, finding no prejudicial due process error and ample basis to support the conclusion of the Director, we affirm.


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

text:
    ROSE V. FERRY, CLAIMANT-APPELLANT, v. BOARD OF REVIEW, DIVISION OF EMPLOYMENT SECURITY, DEPARTMENT OF LABOR AND INDUSTRY AND TWIN BORO MORTGAGE AND ABSTRACT CO., INC., DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued November 6, 1974 —
    Decided November 19, 1974.

      Before Judges Kolovsky, Lyitcíi and Allcobn.

      Mr. Richard S. Semel of the Bergen County Legal Services Assurance Corporation argued the cause for appellant.

      Mr. Michael S. Bokar, Deputy Attorney General, argued the cause for respondent Board of Beview (Mr. William F. Hyland, Attorney General of New Jersey, attorney; Mr. Stephen Skillman, Assistant Attorney General, of counsel).
   The opinion of the court was delivered by

Kolovsky, P. J. A. D.

Claimant, formerly employed as a loan officer for a New Jersey mortgage company, filed a claim for unemployment compensation benefits. On her appeal from a determination of the deputy holding her disqualified from benefits, the Appeal Tribunal of the Division of Employment Security originally held that she was disqualified because allegedly she had left work voluntarily without good cause attributable to such work. Following a rehearing on September 11, 1973 the Appeal Tribunal by its decision of September 12, 1973 found that claimant did not leave her work voluntarily so that she was not subject to such disqualification.

However, it held that she was eligible for benefits only for the four weeks from January 24, 1973 through February 20, 1973 and not thereafter because she had limited her search for work to lending institutions within 25 miles from her home in Phoenicia, New York. She had moved there after being told by her employer, upon her return from a medical leave of absence of three months, that her position no longer existed.

The Appeal Tribunal found that:

[Claimant] made a fairly active search for work within her restrictions to about February 22, 1973 when all employment opportunities in her area had been exhausted. These opportunities numbered approximately 5 or 6. Thereafter she repeated these contacts without success.

After noting that N. J. S. A. 43:21 — 4(c) provides that an unemployed individual shall be eligible to receive benefits with respect to any week only if it appears that

He is able to work, is available for work, and lias demonstrated that he is actively seeking work * * *

the Appeal Tribunal’s opinion concluded:

When a claimant first becomes unemployed she may place reasonable restrictions as to the type of work she will accept but as the period of unemployment lengthens, failure to relax such restrictions makes the claimant unavailable for work and ineligible for benefits.
Inasmuch as the claimant exhausted all her' employment opportunities in the area of her home and she failed to remove the restriction as to type of work she can be held eligible only for the 4 weeks when she made an active search for work.

Claimant appealed to the Board of Review which affirmed the decision of the Appeal Tribunal.

On appeal to this court claimant first argues that she was denied díte process because allegedly she had not been given notice, prior to the rehearing, that the question of whether she had actively sought work was to be an issue to be tried in addition to the issue whether she had voluntarily quit her prior employment.

We find no merit to that contention. The notice of hearing sent the claimant expressly stated, in capital letters, that

THE HEARING WILD COVER THE DETERMINATION' APPEALED, THE CLAIMANT’S AVAILABILITY AND SEARCH FOR WORK, AND MAY INCLUDE ANY OTHER MATTERS AFFECTING THE CLAIMANT’S RIGHT TO BENEFITS UP TO THE TIME OF THE HEARING.

Moreover, there has been no showing — and claimant’s counsel could not even represent at oral argument that there could be a showing • — ■ that claimant made any search for work beyond that fully described by her in her testimony a.t the hearing of September 11, 1973.

Claimant also contends that the decision of the administrative tribunals is “insupportable in the record.” We disagree. The findings of those tribunals are supported by substantial evidence. We perceive no abuse of discretion in their conclusions that claimant’s restric-lions on her search for work were reasonable only for a period of four weeks after the filing of her claim for benefits and that such restrictions wese unreasonable thereafter, so that with respect to that latter period it did not appear that she was available for work and had demonstrated that she was actively seeking work. Cf. Worsnop v. Board of Review, 92 N. J. Super. 260, 265-266 (App. Div. 1966); Breskin v. Board, of Review, 46 N. J. Super. 338 (App. Div. 1957).

The decision of the Board of Beview is affirmed.


author: Salvest, J. S. C.

text:
    P. T. & L. CONSTRUCTION CO., INC., PLAINTIFF, v. TEAMSTERS LOCAL UNION NO. 469, DEFENDANT.
    Superior Court of New Jersey Law Division
    Decided November 30, 1973.

      Mr. Theodore W. Geiser for the plaintiff (Messrs. Hughes, McElroy, Connell, Foley and Geiser, attorneys).

      Mr. Daniel J. Hussey for the defendant (Messrs. Jacob and David Friedland on the brief; Messrs. Friedland & Friedland. attorneys).
   Salvest, J. S. C.

The parties to this controversy are an Employer and a Union who executed a “Labor Contract” on September 15, 1969, covering the period May 1, 1969 to April 30, 1972. The project consisted of construction of new sections of Route 18 pursuant to a contract between plaintiff and the Department of Transportation. In January 1972, plaintiff was in the process of clearing a site for construction of a section of Route 18 at Colts Neck, New Jersey, when a disagreement arose concerning the use of laborers who were not members of defendant Local 469 for certain tasks at that site. Defendant claimed that plaintiff was using nonmember personnel to do labor which should have been under defendant’s jurisdiction according to the contract. Plaintiff denied this allegation and in response claimed that defendant was “featherbedding” in violation of the National Labor Relations Act. This dispute was not resolved in negotiations between the parties and on Eebruary 16, 1972, defendant established a picket line which was honored by several other unions. Work was halted until plaintiff conformed under protest to the Union’s demands and later that month plaintiff brought suit for damages caused by the work stoppage. Defendant answered contending that New Jersey courts lack jurisdiction over the subject matter because the National Labor Relations Act has preempted resolution of such disputes in state or federal courts. Defendant also asserted that the labor contract contained an arbitration clause which plaintiff had not invoked and therefore the suit was premature. Defendant now brings a motion to dismiss the complaint and the parties have stipulated the issues presented. Initially this Court must determine the merits of the jurisdictional question.

The general principle of preemption of state and federal jurisdiction by the National Labor Relations Act regarding conduct that is arguably protected or prohibited by the Act was established in San Diego Bldg. Trades Council v. Garmon, 359 U. S. 236, 79 S. Ct. 773, 3 L. Ed. 2d 775 (1959). The central purpose is to insure vital uniformity of national labor policy through submission of disputes to the expertise of the NLRB. This rationale was recently reconsidered and reaffirmed by the Supreme Court in Motor Coach Employees v. Lockridge, 403 U. S. 274, 91 S. Ct. 1909, 29 L. Ed. 2d 473 (1971), where the Court concluded that the state was preempted from entertaining a suit by an individual against his union for terminating his membership in violation of the union’s constitution and general laws. Although there has been some confusion during the evolution of the Garmon principle of preemption concerning its application to the variety of labor disputes, Cox, Labor Law Preemption Revisited, 85 Harv. L. Rev. 1337 (1972), it is apparent that the doctrine continues to be a. viable concept.

However, the judiciary has not been unequivocally preempted by the NLRB. The first general exception to the Garmon doctrine is that a state has jurisdiction to act in a labor dispute when there is an overriding state interest, such as the interest in maintaining domestic peace and preventing violent conduct or threats to the public order. United Constr. W., etc. v. Laburnum Constr. Corp., 347 U. S. 656, 74 S. Ct. 833, 98 L. Ed. 1025 (1954); Cream-O-Land Dairy v. Local 680, 111 N. J. Super. 578, 582-583 (App. Div.), certif. denied, 57 N. J. 290 (1970); Gotthelf Knitting Mills, Inc. v. Local No. 222, 93 N. J. Super. 263, 270-271 (App. Div. 1966), certif. denied, 48 N. J. 577 (1967). The basis for this exception is the presumed intent that Congress would not by passage of the National Labor Relations Act preempt in areas that had traditionally been a matter of local concern or where such state determinations would have a mere peripheral effect on national labor policy. However, in Blum v. International Ass’n of Machinists, AFL-CIO, 42 N. J. 389 (1964), the New Jersey Supreme Court found that the NLRA precluded a libel action brought by a plant manager against the union for statements contained in distributed leaflets. Although a libel action is traditionally local in nature the Court held that the subject matter was arguably subject to §§ 7 and 8 of the National Labor Relations Act and thus within the sole jurisdiction of the NLRB. Subsequently the United States Supreme Court found an overriding state interest in protecting its citizens from malicious libel that- would allow state jurisdiction although the dispute may be arguably subject to the NLRA. Linn v. United Plant Guard Workers, 383 U. S. 53, 86 S. Ct. 657, 15 L. Ed. 2d 582 (1966).

The second general exception to the Garmon principle has a statutory basis. The Labor Management Relations Act, 1947, § 301, 29 U. S. C. A. § 185, provides as follows:

(a) Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce as defined in this chapter, or between any such labor organizations, may be brought in any district court of the United States having jurisdiction of the parties, without respect to the amount in controversy or without regard to the citizenship of the parties.

By this provision Congress bestowed on federal courts the authority to interpret and enforce collective bargaining agreements, and it has been hold that not only do state courts have concurrent jurisdiction to also interpret and enforce such agreements but that either court may do so even when the conduct alleged is arguably protected or prohibited by the NLRA. Smith v. Evening News Association, 371 U. S. 195, 83 S. Ct. 267, 9 L. Ed. 2d 246 (1962); Local 174, Teamsters, Chauffeurs, Warehousemen & Helpers of America v. Lucas Flour Co., 369 U. S. 95, 82 S. Ct. 571, 7 L. Ed. 2d 593 (1962); Charles Dowd Box Co. v. Courtney, 368 U. S. 502, 82 S. Ct. 519, 7 L. Ed. 2d 483 (1962).

Section 301 jurisdiction further allows a federal or state court to entertain a suit by a member against his union for the latter’s interference with the individual’s rights under the collective bargaining agreement where it is shown that the union was by its conduct breaching its duty of fair representation of the union members. State court jurisdiction is not dislodged because the interference is arguably an unfair labor practice. Vaca v. Sipes, 386 U. S. 171, 87 S. Ct. 903, 17 L. Ed. 2d 842 (1967); Humphrey v. Moore, 375 U. S. 335, 84 S. Ct. 363, 11 L. Ed. 2d 370 (1964).

Yew Jersey courts have recognized their jurisdiction under § 301 to interpret and enforce collective bargaining agreements where disputes arise between employer, union and individual members even though the conduct objected to may arguably be protected or prohibited by the NLRA. Carpenters Millwrights etc. v. Riggs-Distler & Co., 40 N. J. 97, 99 (1963) (Per Curiam); Donnelly v. United Fruit Co., 40 N. J. 61, 75-79 (1963); Independent Oil Workers v. Socony Mobile Oil Co., 85 N. J. Super. 453, 456-458 (Ch. Div. 1964).

It is apparent from the facts of this case that the jurisdiction of this Court cannot be founded upon a compelling state interest arising from possible threat to the public order or because the subject matter of the dispute is that which has traditionally been a matter of local law. State jurisdiction in light of the Garmon preemption doctrine must be based on § 301. The question is whether the relief sought by plaintiff employer is for the interpretation or enforcement of the collective bargaining agreement even though the conduct complained of may also be an unfair labor practice. It is this Court’s opinion that the answer to that question is in the affirmative.

As the United States Supreme Court noted in International Ass’n. of Machinists v. Gonzales, 356 U. S. 617, 622 n.*, 78 S. Ct. 923, 2 L. Ed. 2d 1018 (1958) (quoting from Gonzales v. International Ass’n. of Machinists, 142 Cal. App. 2d 207, 217, 298 P. 2d 92, 99 (1956)), the determination of whether the NLEB has exclusive jurisdiction of an alleged unfair labor practice or whether the action is based on a breach of a collective bargaining contract for which the state has jurisdiction must be made from the character of the pleadings and the issues presented. Thus, while state courts may have jurisdiction under § 301, it remains the duty of the court to examine the pleadings and ascertain the true nature of the claim. There must be a substantial claim which provides the court with jurisdiction appearing affirmatively on the face of the complaint, although it is not necessary to allege specific violations of the collective bargaining agreement. Chasis v. Progress Mfg. Co., 382 F. 2d 773 (3rd Cir. 1967). Plaintiff employer here alleges the existence of a “Labor Contract” in effect at the time of the dispute and, in pertinent part, as follows:

5. Approximately one week after the work commenced, one Robert Rossi, a representative of defendant, demanded that, plaintiff employ a Teamster, that is to say, a member of defendant Union, on the project.
6. At all pertinent times, plaintiff was not performing any work with respect to which plaintiff was obligated to employ a member of the defendant Union, and at all times, plaintiff has complied with the letter and spirit of the Labor Contract by employing members of the defendant Union whenever it was reasonably necessary to do so and required by the terms of the contract in question.
11. Promptly at the inception of the strike, the plaintiff sent a telegram to defendant, the text of which is as follows:
“You are in violation of our contract in placing pickets on our Route 18 job. Your insistence on feather-bedding this project with men I don’t need is a violation of our agreement and the federal law. I shall seek damages for all cost incurred due to this unwarranted strike in a court of law.”
12. By reason of the conduct of the defendant, which is in violation of its legal rights and which violates the duties which it owes to plaintiff, plaintiff has sustained and continues to sustain very substantial damages by reason of its inability to prosecute the work required under the terms of its contract with the State of New Jersey, and plaintiff expects that it will continue to sustain such damages in the future by reason of the delay occasioned in the prosecution of such work.
13. Conscious of its obligation to mitigate damages, but under the conditions of economic duress imposed by defendant on plaintiff as detailed above, plaintiff will, under protest, employ a member of the defendant as demanded by defendant forthwith, but only in order to enable the work to proceed, since plaintiff presently has no work at all requiring the employment of a member of the defendant Union.
14. As soon as the work of plaintiff requires the employment of a member or members of the defendant Union, it will employ such men as it is obliged to do under the contract, but until such time, plaintiff regards the employment of the man in question as pure “featherbedding”, and will seek reimbursement from defendant for all damages proximately caused by the conduct of the defendant, including reimbursement for wages and fringe benefits incurred by reason of the employment of a member of defendant Union.

It is apparent from the face of the complaint that the claim is substantial in nature and not frivolous. This Court is guided by the fact that the purpose of § 301 was not to limit but to increase the number of available forums to interpret and enforce collective bargaining agreements. Dowd Box Co. v. Courtney, supra, 368 U. S. at 508-509, 82 S. Ct. at 523, 7 L. Ed. 2d at 487-488; Chasis v. Progress Mfg. Co., supra, 382 F. 2d at 777. In light of this Congressional purpose the jurisdiction conferred by § 301 must be broadly construed.

Admittedly plaintiff’s complaint specifically alleges featherbedding which would be an unfair labor practice prohibited by the National Labor Relations Act, § 8 as amended 29 U. S. C. A. § 158 (b) (6). However, the complaint also alleges a breach of the contract with resulting damage. The essence of the dispute is whether the work in question was under the jurisdiction of the defendant Union. The contract provisions must be interpreted in light of the facts to determine whether the Union was correct in its opinion that the work being done belonged to it or whether the work stoppage and consequent loss suffered by plaintiff was wrongful because under the contract the Union had no right to insist on doing the work in question. This Court concludes that, based on the authority hereinbefore cited, it has jurisdiction under § 301 to entertain this suit on the contract in question and to interpret and enforce its provisions even though the conduct complained of may also be an unfair labor practice.

With jurisdiction thus established the Court is permitted to consider appropriate relief under the terms of the collective bargaining agreement. Consequently, the substance and effect of the arbitration clause must first be determined to ascertain whether the merits of the dispute can be reached. The arbitration clause is, in relevant part, as follows:

Should any dispute arise between the Employer and employees, or the Employer and the Union, concerning the application or interpretation of any provision of this contract, or concerning any term or condition of employment, or otherwise, the representatives of the Union and the representatives of the Employer shall attempt to adjust the controversy between themselves. In the event they are unable to adjust same, the dispute may, within two (2) days after the request of either party, be submitted to Arbitration before a permanent Arbitrator to be designated by mutual agreement of the parties to this agreement. The term of the permanent Arbitrator will be for the duration of this agreement.
Until such time as permanent Arbitrator is selected by the parties, the dispute may continue to be submitted to the New Jersey State Board of Mediation, whose decision shall be final and binding upon the parties hereto.
If the Union decides to submit the matter to Arbitration, it shall notify the Company of this decision. The Arbitrator shall be selected by the New Jersey State Board of Mediation. The decision of the Arbitrator will be final and binding on both parties to this agreement, as well as the employee(s) involved. The Arbitrator shall be bound by this agreement and shall have no power to alter, amend, modify, add anything to, or take anything away from its provisions.

Initially it should be noted that this Court is bound by substantive federal labor law concerning arbitration clauses in collective bargaining agreements to facilitate continuity in our national labor policy. Local 174, Teamsters, Chauffeurs, Warehousemen & Helpers v. Lucas Flour Co., supra; Textile Workers Union of America v. Lincoln Mills, 353 U. S. 448, 77 S. Ct. 912, 1 L. Ed. 2d 972 (1957); U. S. Pipe & Foundry Co. v. United Steelworkers of America, 37 N. J. 343, 360 (1962). Further, whether the dispute in question is arbitrable under the terms of the arbitration clause is a matter for judicial determination. John Wiley & Sons, Inc. v. Livingston, 376 U. S. 543, 84 S. Ct. 909, 11 L. Ed. 2d 898 (1964); International Union of Electrical, Radio & Machine Workers v. Westinghouse Elec. Corp., 268 F. 2d 352 (3rd Cir. 1959).

The interpretation of the arbitration clause must be made in light of a current policy greatly favoring the arbitration of labor disputes by the means voluntarily agreed upon by the parties. Arbitration was recognized as an essential feature of labor law to increase industrial stability by the Steelworker Trilogy. United Steelworkers of America v. American Mfg. Co., 363 U. S. 564, 80 S. Ct. 1343, 4 L. Ed. 2d 1403 (1960); United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U. S. 574, 80 S. Ct. 1347, 4 L. Ed. 2d 1409 (1960); United Steelworkers of America v. Enterprise Wheel and Car Corp., 363 U. S. 593, 80 S. Ct. 1358, 4 L. Ed. 2d 1424 (1960). The Labor Management Relations Act, 1947, § 203 (d), 29 U. S. C. A. § 173 (d), itself provides: “Final adjustment by a method agreed upon by the parties is declared to be the desirable method for settlement of grievance disputes arising over the application or interpretation of an existing collective-bargaining agreement.”

New Jersey applies this liberal federal approach to the arbitration procedure in order to resolve labor disputes. Standard Motor Freight, Inc. v. Local Union No. 560, 49 N. J. 83, 95 (1967). However, there is a recognized limit to the scope of judicial inquiry. The New Jersey Supreme Court commented in Jersey Central Power & Light Co. v. Local Union No. 1289, 38 N. J. 95, 102-103 (1962), as follows:

The parties to a collective bargaining agreement contract for the-judgment of men steeped in the special history and problems of the' economic scene. What to a judge may seem frivolous may to arbitrators be meaningful. Moreover, arbitration is designed to yield a speedy answer, an aim which would be thwarted by preliminary litigation over the forum.
For these reasons the judicial inquiry should not extend beyond deciding whether the dispute is within the agreement to arbitrate.

Citing the Steelworker Trilogy, the Court went on to hold that “the judiciary may not examine the merits of a dispute which on its face falls within the provision for arbitration in a collective bargaining agreement”. Jersey Central Power & Light Co. v. Local Union No. 1289, supra, 38 N. J. at 104. The narrow question thus to be determined is whether the dispute concerning defendant’s work jurisdiction resulting in the work stoppage was one that fell within the arbitration clause executed by the parties. This Court has no hesitation to hold that the collective bargaining agreement providing for final and binding arbitration of “any dispute ... between . . . the Employer and the Union, concerning the application or interpretation of any provision of this contract, or concerning any term or condition of employment” covers the disagreement in question. The Union’s work jurisdiction was a provision of the contract, there are no exceptions in the arbitration clause, and the broad scope of the clause is apparent. It may be argued that by a fair reading it is permissive rather than mandatory in nature because the arbitration clause provides that if “they are unable to adjust same, the dispute may ... be submitted to Arbitration.” However, the court in Bonnot v. Congress of Independent Unions Local #14, 331 F. 2d 355, 359 (8th Cir. 1964) had occasion to comment on such contractual language as follows:

We should mention, perhaps, the union’s suggestion that the bargaining agreement does not compel arbitration but only provides that either party “may” request it; that it is thus permissive and optional; and that neither it nor the contractor elected to arbitrate. The result claimed to follow is that the arbitration here is not mandatory. We think the result is necessarily the other way. The obvious purpose of the “may” language is to give an aggrieved party the choice between arbitration or the abandonment of its claim. The presence of this or similar language has not prevented the conclusion that a claim, if pressed, is compulsorily subject to Arbitration.

Sec also United Steelworkers of America v. American Mfg. Co., supra.

Lastly, the collective bargaining agreement expired April 30, 1972. Although not argued by the parties, it is clear that the right to have arbitration of a dispute which arose during the existence of the collective bargaining agreement or enforcement of an arbitration award does not expire with the expiration of that agreement, absent some time limitation therein. United Steelworkers of America v. Enterprise Wheel & Car Corp., supra; Jersey Central Power & Light Co. v. Local Union No. 1289, supra, 38 N. J. at 107; Botany Mills, Inc. v. Textile Workers Union, 50 N. J. Super. 18, 28-29 (App. Div.), certif. granted 27 N. J. 320 (1958), appeal dismissed April 27, 3959. There is no time limit concerning the arbitration of disputes in the agreement in question.

The parties to this action were also parties to a collective bargaining agreement in effect on the date of the allegedly wrongful work stoppage. The agreement contained a standard arbitration clause which provides for final and binding arbitration of disputes of this nature. This Court concludes that the proper course is to hold the parties to the procedure for resolution of contractual disagreements mutually agreed upon by them, and orders a stay in this proceeding pending arbitration. Mason-Dixon Lines, Inc. v. Local Union No. 560, 443 F. 2d 807 (3rd Cir. 1971).

      The National Labor Relations Act, § 8 as amended 29 U. S. C. A. § 158 (b) (6) provides:
      It shall be an unfair labor practice for a labor organization or its agents —
      * s- $#*>** *
      to cause or attempt to cause an employer to pay or deliver or agree to pay or deliver any money or other thing of value, in the nature of an exaction, for services which are not performed or not to be performed ....

       There is a dearth of case law on alleged violations of the featherbedding provision because of the limited construction and effect given to it by subsequent Supreme Court decisions. NLRB v. Gamble Enterprises, Inc., 345 U. S. 117, 73 S. Ct. 560, 97 L. Ed. 864 (1953); American Newspaper Publishers Ass’n v. NLRB, 345 U. S. 100, 73
        S. Ct. 552, 97 L. Ed. 852 (1953). See also Annot., 31 A. L. R. 2d 508 (1953). However, the California Supreme Court has recently faced the issue in Consolidated Theatres, Inc. v. Theatrical Stage Employees Union, Local 16, 69 Cal. 2d 713, 73 Cal. Rptr. 213, 447 P. 2d 325 (1968). Plaintiff was a theatre owner seeking compensatory damages resulting from picketing and an injunction against the union preventing the union from attempting to coerce plaintiff into employing unneeded members at one of its theatres. The court held that since the conduct was arguably prohibited by § 8 (b) (6) the NLRB had primary jurisdiction. However, the court had earlier held that a 1931 agreement was not valid at the time of the dispute and thus the court was precluded from basing jurisdiction on § 301. No such problem exists here as it is admitted that a contract was in full force and effect at the time of the disagreement between the parties.

       In Local 174, Teamsters, Chauffeurs, Warehousemen & Holpers of America v. Lucas Flour Co., supra, the Supreme Court of the United States held that a clause requiring the parties to submit disputes to final determination by arbitration implied an obligation not to strike over the disputes. Plaintiff here contends that the holding in Lucas

        Flour means that where the Union elects to strike rather than demand arbitration of a dispute which it admits is arbitrable, the employer then has a right to also waive arbitration and bring an action for breach of contract. However, in Drake Bakeries, Inc. v. Local 50, American Bakery, 370 U. S. 254, 82 S. Ct. 1346, 8 L. Ed. 2d 474 (1962), a ease more on point, an employer brought an action for breach of a collective bargaining agreement after the Union called a strike in violation of a no-strike provision in the agreement. The Court held that considering the policy greatly favoring arbitration as a solution to labor disputes and because the agreement provided that all complaints, disputes and grievances would be subject to arbitration, the granting of a stay pending arbitration was proper. The Court distinguished its holding in Lúeas Flour thusly:
      In that case, unlike the present one, the union conceded that there had been a strike over a grievance which the union had agreed to submit to arbitration. The only question in dispute was liability vel non. The union did not contend that, and the Court did not consider whether, the employer’s damage claim should have been taken to an arbitrator. And, of course, the Court did not consider whether the union’s breach of the no-strike clause constituted a repudiation or waiver of arbitration of the damage claim.

        Drake Bakeries, Inc. v. Local 50, American Bakery, supra, 370 U. S. at 262 n. 8, 82 S. Ct. at 1351, 8 L. Ed. 2d at 480. In the present case it is very material to note that not only did the collective bargaining agreement not contain a no-strike clause, it in fact provided that a work stoppage is not a breach of the contract if the employer first violates the agreement. The collective bargaining agreement provided as follows:
      (1) The Employer shall not enter into any other written or oral agreement with any employee or group of employees covered by this agreement which in any way violates any of the provisions of this agreement. In the event any such agreement is entered into with the consent of any employee or group of employees, the Union reserves the right to issue a work stoppage, and such order shall not be considered as a breach of this labor contract. The Union shall not accord' to any Employer party to a like labor agreement more advantageous wages, hours, or working conditions than are contained herein. Such action by the Union shall be considered a breach of this labor contract.


author: Thomas, J. S. C.

text:
    ADOLPH R. LEPRE, PLAINTIFF, v. NICHOLAS V. CAPUTO, DEFENDANT.
    Superior Court of New Jersey Law Division
    Decided October 2, 1974.

      Mr. William W. Frieman for plaintiff.

      Mr. Francis P. McQuade, Essex County Counsel, for defendant.
   Thomas, J. S. C.

Plaintiff Adolph R. Lepre sought to have this court order defendant Nicholas Y. Caputo, Essex County Clerk, to change his designation of plaintiff’s candidacy for the Caldwell Borough Council on the November 1974 ballot from “Borough Council” to “Councilman 1-Year Unexpired Term.” Plaintiff urged in the alternative that he should be permitted to amend a “defective” petition pursuant to N. J. 8. A. 19:13-13, or that the order should be entered, by virtue of N. J. 8. A. 19 :13-12, to prevent an invasion of plaintiff’s rights (denial of hia right to run for the office of his choice). After a review of the verified petition and the taking of testimony, plaintiff’s application was denied. An oral decision was made from the bench at the completion of the hearing so as to provide plaintiff with the ability to effect a timely appeal. This opinion supplements that oral decision.

On April 25, 1974 plaintiff filed a nominating petition with defendant seeking to be placed on the November 5, 1974 ballot as an independent candidate for councilman in the Borough of Caldwell. April 25 was; the deadline for the filing of such petitions. Piling as an independent candidate resulted in plaintiff being placed directly on the November 5 ballot, thus bypassing the primary election process.

The dispute in this proceeding arises over which council office plaintiff was seeking. In the November election the Borough of Caldwell had three vacancies for the office of councilman: two for full three-year terms and one vacancy for an unexpired one-year term. Plaintiff in his nominating petition simply stated that the “title of office” sought was “councilman.”

Plaintiff contends his intent was to run for the one-year unexpired term, not for one of the full-term positions. He alleges that he had never considered running for the full three-year term, but in fact always sought the unexpired term. Plaintiff also alleges that when his petition was circulated the signers were informed that his petition was for the unexpired one-year term for councilman. Plaintiff thus sought relief from this court to “amend” the title on his petition to accurately reflect the position he sought.

Defendant placed plaintiff on the ballot for a full three-year term, the normal procedure followed when a petition with a designation such as plaintiff’s is received. It is this designation which plaintiff contested. The ultimate issue which must be decided is whether the proposed change in designation is merely a correction of a, defect in the nominating petition or whether in fact it is a substantive change in the office sought..

The question that first confronts this court is whether the position of councilman for the full three-year term and the position for the unexpired one-year term are two separate and distinct offices. Although there appears to be no New Jersey decision directly on point, this, court finds that when, as in the present case, two similar offices are to be filled at an election, each differing only as to the term, the offices are separate and distinct. This distinction has been recognized in grouping different terms of office on the ballot. In Ehrhardt v. Bergen, 69 N. J. Super. 390 (App. Div. 1961), it was held that township committee candidates running for the full three-year term were properly listed together on the ballot under the heading “Township Committee,” while the candidates listed for the shorter term were listed as “Township Committee 2 Year Term.”

Plaintiff on his nominating petition stated that the title of office sought was “Councilman” it did not state that it was for the office of “Councilman-1 Year Unexpired Term.” Therefore, defendant was correct in exercising his discretion by placing plaintiff’s name on the November ballot as a candidate for councilman for the full term. Hawkes v. Gate, 129 N. J. L. 5 (Sup. Ct. 1942). If plaintiff desired to run for the one-year unexpired term, he should have so stated on Ms petition. As the petition was submitted it showed no defect; it stated a proper office and met all other requirements for filing.

A request to amend a petition for office, as allegedly defective, after the deadline for filing the petition must be denied when the proposed amendment changes the office being sought. Changing the office designation to which one seeks election on an otherwise nondefective petition is not remedying a defect. If such an “amendment” were allowed, the opportunity for fraud would prevail. While N. J. 8. A. 19 :13-13 allows amendments to the nominating petition, it does so only to let a defective petition be corrected. The petition submitted by plaintiff was not defective and thus N. J. 8. A. 19:13-13 is inapplicable.

Plaintiff next urges that it was his original intention to file for the one-year term and to deny his amendment now is an invasion of his rights under N. J. 8. A. 19 :13-12. Plaintiff solicited signatures for Ms petition and it must be presumed that the signatories read the petition and knew what office plaintiff was seeking when they signed the petition. The purpose of obtaining a petition signed-by voters in the district affected is to indicate support for a particular candidate for a particular office. It would constitute a fraud and deception upon the signers of a petition if, after obtaining support for a particular office, a candidate were allowed to amend his petition, so as to run for a different office. For example, if a person filed as a candidate for the General Assembly, it would be clear that an attempt to “amend” his petition to run for the State Senate would deceive those who signed his petition to run for the Assembly. Such an amendment might even jeopardize those who had signed the petition by placing them in violation of N. J. S. A. 19 :13-4 and 19:13-6, particularly if they had also signed another candidate’s petition for the “amended” office.

N. J. 8. A. 19:13 — 12 provides an avenue for relief for an invasion of a candidate’s rights, but a candidate has no right to change his petition and seek a different office after the filing deadline. It is therefore axiomatic that a failure to let him do so cannot constitute a violation of his rights.

Plaintiff contends that he is not seeking to change the office being sought, but merely wants to have the petition amended to properly designate the office which he has been seeking, namely, the unexpired one-year term for councilman. To permit such a change the candidate must offer clear and convincing proof that the petition did not properly designate the office he was seeking. He must also satisfy the court by clear and convincing evidence that the signers of the petition were informed that the office sought was not the office stated in the petition.

Evid. B. :1 (4) sets forth three standards of proofs: namely, preponderance of the evidence, clear and convincing proof and beyond a reasonable doubt. Comment l(4)-4 provides that:

The third standard, clear and convincing evidence, falls somewhere between the ordinary civil standard of preponderance of the evidence and Iho criminal standard of beyond a reasonable doubt. * * * It should produce in the mind of the trier of the fact a firm belief or conviction as to the truth of the allegations sought to be established.

This principle was enunciated in Aiello v. Knoll Golf Club, 64 N. J. Super. 156 (App. Div. 1960), where the clear and convincing standard of proof was applied in, establishing plaintiffs bnrden of proving an alleged parol gift of land. The language adopted in Aiello of an earlier Iowa case, Bevington v. Bevington, 133 Iowa 351, 358, 110 N. W. 840, 843, 9 L. R. A., N. S. 508 (Sup. Ct. 1907), describes appropriately this additional burden placed upon a proponent in clear and convincing situations:

The law requires nothing more than that the result shall not be reached by a mere balancing of doubts or probabilities, but by clear and unequivocal proof of facts upon which a Court or jury may reach a reasonable satisfactory conclusion. In other words the rule does not require absolute certainty, but reasonable certainty of the truth of the ultimate fact in controversy.

Plaintiff testified that when his petition was circulated, those signing were told the office he was seeking was “1-year councilman unexpired term.” The bare assertion by plaintiff or any candidate that he advised all the signers of his petition that he was not running for the position stated in the petition, but rather was running for a different office, does not constitute clear and convincing proof sufficient to permit such amendment to the petition after the filing date. 'Accordingly, the order to show cause why the petition should not be amended is denied.


author: Rizzi, A. J. S. C.

text:
    TOWNSHIP OF CHERRY HILL, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, YOUTH CENTER, INC., A CORPORATION OF THE STATE OF NEW JERSEY, AND KEIM & KEIM, INC., A CORPORATION OF THE STATE OF NEW JERSEY, PLAINTIFFS, v. NEW JERSEY RACING COMMISSION, NEW JERSEY SPORTS AND EXPOSITION AUTHORITY, AND GARDEN STATE RACING ASSOCIATION, A CORPORATION OF THE STATE OF NEW JERSEY, JOINTLY SEVERALLY, OR IN THE ALTERNATIVE, DEFENDANTS.
    Superior Court of New Jersey Law Division
    Decided November 6, 1974.

      Mr. Ralph J. Kmiec for plaintiffs (Messrs. Kmiec & Palumbo, attorneys).

      Mr. Clinton E. Cronin for defendant New Jersey Racing Commission (Mr. William F. Hyland, Attorney General of New Jersey, attorney).

      Mr. Andrew F. Zazzali for defendant New Jersey Sports and Exposition Authority (Messrs. Zazzali & Zazzali, attorneys) .

      Mr. George H. Hohweiler for defendant Garden State Eacing Association. (Messrs. Richman, Berry, Ferren, Hohweiler & Tyler, attorneys).
   Rizzi, A. J. S. C.

This is a mixed in lieu proceeding and action to enjoin a public nuisance in which the issues to be determined are:

(I) Whether a joint permit issued by the New Jersey Eac-ing Commission (Commission) to the New Jersey Sports and Exposition Authority (Authority) and Garden State Racing Association (Garden State) to conduct a thoroughbred race meeting at the premises in Cherry Hill of Garden State during the period November 25, 1974 through December 31, 1974 was issued in violation of N. J. 8. A. 5:5-43.

(II) Whether the Authority statute, N. J. 8. A. 5:10--7(a) prohibited the Authority from operating a thoroughbred racing meet in a place other than the “Meadowlands Complex”;

(III) Whether N. J. 8. A. 6:5-47 provides for an unconstitutional delegation of legislative power for the lack of adequate, reasonable and clear standards to guide the Commission in authorizing the transfer of racing days from one permit holder to another.

(IV) Whether there lias been a denial to plaintiffs of equal protection under the United States Constitution because the revenue received by the State of New Jersey from racing operated by the Authority is limited to .05% under N. J. 8. A. 5:10-7(f), while the revenue received from other permit holders in the conduct of racing is 9.15% under N. J. 8. A. 5:5-66;

(V) Whether the conduct of horse racing at the premises of Garden State of Cherry Hill during the period November 25, 1974 through December 31, 1974 will constitute a public nuisance, and if in the affirmative, whether such public nuisance is actionable such as to require the issuance of an injunction thereon;

(VI) Whether the action of the Commission in granting the joint application to the Authority and Garden State to operate thronghbred racing at the premises of Garden State at Cherry Hill should he set aside as arbitrary, unreasonable and capricious.

Defendant Authority is a body corporate and politic established by V. J. 8. A. 5:10-1 et seq., which became effective on May 10, 1971. Under date of May 24, 1972 the Authority, pursuant to the authority of N. J. 8. A. 5:10-7, applied to the Commission for a permit to conduct the running of horse race meetings at the site of the “Meadowlands Complex” in East Rutherford. Thereafter, the Authority commenced the construction of recreation facilities on the land described in the statute, which construction is continür ing and will include a thoroughbred horse race track among other facilities. In June 1973 the Authority had been advised by the Commission that a permit to conduct horse racing was approved, and an official permit was issued by the Commission on April 37, 1973.

By letter dated August 16, 1974 the Commission urged the Authority to apply to it for a permit to conduct a meeting for a portion, of its available racing dates in 1974 at the facilities of a licensed permit holder in New Jersey, presumably under the authority of N. J. S. A. 5:5-47. Sometime thereafter there was a joint application filed by the Authority and Garden State for permission to conduct a meeting at the track of Garden State during the period November 35, 1974 through December 31, 1974.

On September 34, 1974 the Commission held a meeting at its offices at Trenton to which representatives of Cherry Hill, including the mayor, had been invited at their request, and after hearing the opposition of the mayor expressed at the meeting to the issuance of the permit and the reasons therefor, the Commission proceeded to grant the joint application to operate racing at Garden State.

This proceeding was thereafter instituted by the plaintiffs seeking to void the permit granted for the various reasons above enumerated, and also seeking to enjoin defendants, if the permits were otherwise declared to be valid and effectual, from exercising the permit, upon the ground that the conduct of racing at the premises of Garden State in Cherry Hill during the days in question will constitute an actionable public nuisance.

The various legal questions with respect to the validity of the joint permit will first be considered.

I

Plaintiffs charge that the grant by defendant Pacing Commission of the challenged license is void because it is in violation of N. J. 8. A. 5 :5-43. It has been established that the joint application of the Authority and Garden State was not filed until September 20, 1974.

N. J. 8. A. 5:5-43, insofar as relevant to plaintiffs’ argument, provides that:

All applications for dates for horse race meetings after the first year shall he filed with the commission prior to October 15 of each year and shall be acted upon by the commission at a meeting of the commission to be held not later than December 1 of the same year. At such meeting so held the commission shall act upon all applications filed with it prior to October 15 of such year and shall allot to the respective applicants, subject as hereinbefore and hereinafter stated, racing days for the ensuing year. * *

The argument goes that the Authority did not file its joint application prior to October 15, 1973; therefore, it is asserted, the application is untimely and should have been denied by the Commission.

N. J. S. A. 5:5-43, however, goes on to provide that

* * In the event any such application is filed with the commission on or after October 15 of any year, the commission shall act upon the same at a meeting of the commission to be held not later than 60 days following the filing of such application; *’ * *.

While plaintiffs urge this portion of the statute to bo inapplicable to the type of joint application under review, it is clear to the court that the language of the statute authorizes the very application here involved.

In the ease of applications filed before October 15 of any year, the Commission is directed to act thereon, at a meeting to be held not later than December 1 of the same year, by allotting to the respective applicants racing dates for the ensuing year. Thus an applicant to be afforded an opportunity to obtain desired racing dates for the following year must have applied by October 15. Failure to timely file does not result in forfeiture of the right to be licensed at all, but only forfeits the right to compete with other applicants for favored dates, since presumably they already will have been allotted among those who filed before October 15.

The second portion of the statute was; calculated, then, to authorize the tardy filing of an application by an applicant for dates, whether in the current year or for the following or ensuing year. If this were not a proper construction of the statute, a new track which may not have received its approval or may not have completed its facilities until, for example December 15, would be denied the right to operate at all during the ensuing year, even though there were many available dates during the ensuing year, for the technical reason that its application was not filed by October 15. Such a strained construction would reach a result which in this courts view was not intended by the statute.

The court is of the view that the application in question falls within the provisions of the second portion of the statute providing for the filing of a late application and that the Commission had a right and indeed the duty to act thereon within 60 days, with the full right to grant the application if otherwise appropriate to do so.

II

Plaintiffs next urge that defendant Commission exceeded its powers in granting the joint license because the right of the defendant Authority to hold a license is limited under N. J. S. A. 5:10-7 (a) to the “Meadowlands Complex,” and since the license here is to run races at a track other than on the grounds of the Meadowlands, plaintiffs say the statutory authority has been exceeded.

The statute which created defendant Authority limited, in section 6 thereof, its power to a “project to be located in the Hackensack Meadowlands upon a site not to exceed 750 acres.” N. J. S. A. 5:10-6(a).

N. J. 8. A. 5:10-7(a) provides:

The authority is hereby authorized, licensed and empowered to apply to the Racing Commission for a permit or permits to hold and conduct, as part of the meadowlands oomplesc, horse race meetings * * *• and to provide a place or places on the race meeting grounds or enclosure for wagering * * *. [Emphasis added]

Another section of the statute creating the Authority, JV. J. 8. A. 5:10-22, says that “It is the express intent of the Legislature that the powers of the authority to undertake the meadowlands complex shall be limited to the site of the project * * *”

Plaintiffs urge that the combined effect of these statutory references is to make clear that the Legislature did not intend to allow the Authority to share with other racing license holders the right to operate, under N. J. 8. A. 5:5-47, at a track of another license holder.

N. J. 8. A. 5:5-47 provides that:

* * * The commission may in its discretion authorize a permit holder to conduct the horse race meeting for which it has been issued a permit, or a portion thereof, at a place, track or enclosure owned or operated by another permit holder upon application therefor made by both said permit holders, subject to such terms, conditions, and requirements as the commission shall direct * * *.

There is no provision in the statute establishing the Authority, N. J. 8. A. 5 :10 — 1 through 26, which expressly prohibits racing elsewhere. The issue to be decided, then, is whether the various statutes read together prohibit such activity, or conversely, whether the statutes may be read to in-ferontially permit racing elsewhere.

N. J. 8. A. 5:10-7 (a) hereinabove set forth in its germane content merely describes the location for which the Authority had the right to seek a permit. Once the permit was issued to the Authority, N. J. 8. A. 5:10-7(b) came into play. It provides that

Except as otherwise provided in this section, such horse race meetings and parimutuel wagering shall be conducted by the authority in the manner and subject to compliance with the standards set forth in P. L. 1940, C. 17 (0.5:5-22, et seq.) and the rules, regulations and conditions prescribed by the Racing Commission thereunder for the conduct of horse race meetings, and for parimutuel betting at such meetings.

The above section, N. J. S. A. 5:5-&3 et seq., then, controls the actual conduct of horse meetings after the original application is made and permit issued under N. J. 8. A. 5:10-7 (a).

Although N. J. 8. A. 5 :10-22 does limit the acreage of the Meadowlands Complex and thereby guarantees there will be no further infringement by the Authority in the Meadow-lands, it is the view of this court that the Legislature did not intend that the Authority must at all times during its existence and under all circumstapuces conduct its racing on the specified tract. It must be mentioned here that the Legislature, in N. J. 8. A. 5 :5-47.1, provided that

In the event that any licensed race meeting cannot be held or completed at the time prescribed by the license for the holding thereof, because of the occurrence of an event beyond the permit holder’s control, such as a fire, hurricane, tornado or other catastrophe, the permit holder shall be entitled to an emergency permit to hold or complete the said race meeting at any other available race track, upon such terms and conditions as shall be fixed by the New Jersey Racing Commission.

If the Authority had constructed its race track and the stadium were destroyed by catastrophe, such as a fire, applying the reasoning ascribed to the statutes by plaintiffs, the Authority could not avail itself of N. J. 8. A. 5:5-47.1 and operate at another track temporarily while its facilities were reconstructed. This result is in the view of this court an unreasonable construction of the statutes and would produce a result never intended by the Legislature. It is more cogent to infer that when the Legislature adopted N. J. 8. A. 5:10-7(b) which made the Authority subject to the rules and regulations of the Commission after it came into being, it intended that all of the provisions which established rights as well as obligations as to the other race tracks equally applied to the Authority. It is concluded by this court then that N. J. 8. A. 5:10-7 (a) is a limitation only upon the application for the original permit to race and not a limitation as to the use by the Authority of the permit itself, and further, that the Authority derived the same right to operate elsewhere under X. J. 8. A. o :5-47 and 5 :5~47.1 as did the other permit holders who have been licensed by the Commission. The permit granted under the joint application is valid and effective.

Ill

Plaintiffs next contend that the provisions of N. J. 8. A. 5 :5-47 are an unconstitutional delegation of legislative power for the lack of any adequate, reasonable and clear standards to guide the Commission in authorizing the transfer of racing days from one permit holder to another.

X. J. 8. A. 5:5-47 in its challenged portion provides that

* *> * rphg commission may in its discretion authorize a permit holder to conduct the horse race meeting for which it has been issued a permit, or a portion thereof, at a place, track or enclosure owned or operated by another permit holder upon application therefor made by both said permit holders, subject to such terms, conditions, and requirements as the commission shall direct. ® * *

In the ease of State v. Seligson, 106 N. J. Super. 329 (App. Div. 1969) it was held that

® * pT]he Legislature may not vest unbridled or arbitrary power in the agency but must furnish reasonably adequate standards to guide it.

In Seligson the court went on to hold that such standards need not be expressly stated in a particular section of the statute if they may reasonably be inferred from the statutory scheme as a whole, citing Schierstead v. Brigantine, 20 N. J. 164, 169 (1955).

In Schierstead the Supreme Court held that

In ascertaining the presence of standards and norms to support delegated powers, it is fundamental that we are not confined to the four corners of the particular section under consideration but are obligated to examine the entire act in the light of its surroundings and objectives. Nor need the standards be set forth in express terms, if they may reasonably be inferred from the statutory scheme as a whole.

' An examination of other sections of the racing statute, specifically N. J. S. A. 5:5-38 through 51, will disclose numerous requirements for the filing of applications, renewal permits and revocation and refusal of licenses. One of these sections, N. J. 8. A. 5:5-43, proscribes that:

* * * In making such allotment of racing dates, the commission shall endeavor to allot to each applicant * * * the dates requested * * *, after giving due consideration to all factors involved and the interests of such respective applicants and the public.

There have been numerous cases in New Jersey in which standards similar to the guiding language of N. J. S. A. 5:5-43 have been upheld. See Burton v. Sills, 53 N. J. 86, 90-92 (1968) (“the public health, safety and welfare”); Elizabeth Federal S. & L. Ass’n v. Howell, 30 N. J. 190, 194 (1959) (“in the public interest”); In re Greenville Bus Co., 17 N. J. 131, 135 (1954) (“necessary and proper for the public convenience and properly conserves the public interests”); Ward v. Scott, 11 N. J. 117, 123-125 (1952) (“without substantial detriment to the public good”); Newark v. New Jersey Turnpike Auth., 7 N. J. 377, 383-385, (1951), app. dism. 342 U. S. 874, 72 S. Ct. 168, 96 L. Ed. 657 (1951) (“which it may determine is reasonably necessary”); State v. Seligson, 106 N. J. Super. 329, 332-333 (App. Div. 1969) (“commodities”); Department of Health v. Owens Corning Fiberglas Corp., 100 N. J. Super. 366, 383-384 (App. Div. 1968), aff’d 53 N. J. 248 (1969) (“air pollution”).

It is the view of the court that the racing statute taken in its entirety contains a constitutionally sufficient standard, as delineated in N. J. S. A. 5:5-43 to govern the Racing Commission’s action in granting permits and allotting dates under N. J. S. A. 5 :5-43 and TV. J. S. A. 5:5-47.

IV

Plaintiffs next argue that there has been a denial of equal protection of the laws under the United States Constitution to the people of the Township of Cherry Hill because under the Authority statute N. J. S. A. 5 :10 — 1 et seq., the State of Now Jersey will receive as revenue, out of the total betting handle collected by the Authority in the running of horse races, a sum limited to .05% of the total handle, while the running of races by other permit holders results in the collection of revenue by the State under TV. J. 8. A. 5:5-66 (b)(1) on the total handle in the amount of 9.15% thereof.

Legislation carries with it a strong presumption of constitutionality. The United States Supreme Court has held in such cases as McGowan v. Maryland, 366 U. S. 420, 81 S. Ct. 1101, 6 L. Ed. 2d 393 (1961); Dandridge v. Williams, 397 U. S. 471, 90 S. Ct. 1153, 25 L. Ed. 2d 491 (1970) and Levy v. Louisiana, 391 U. S. 68, 88 S. Ct. 1509, 20 L. Ed. 2d 436, reh. den. 393 U. S. 898, 89 S. Ct. 65, 21 L. Ed. 2d 185 (1968), that state economic or social legislation which results in some degree of inequality is not violative of the Equal Protection Clause of the Fourteenth Amendment, unless the classification involved has no underlying facts or rationale which would reasonably justify it.

The New Jersey Supreme Court held in Guill v. Mayor, etc., of Hoboken, 21 N. J. 574 (1956) that

The classification satisfies the constitutional test, of equality and reasonableness if it rests upon same ground of difference having a real and substantial relation to the basic object of the legislation or some relevant consideration of public policy, [at 582]

In New Jersey Sports and Exposition Auth. v. McCrane, 119 N. J. Super. 457 (Law Div. 1971), aff’d 61 N. J. 1 (1972), the general constitutionality of the Authority statute was upheld by both tribunals. In the lower court opinion Judge (now Justice) Pashman made specific note that

The Authority is a public corporation constituted for a public purpose. It is not a private association or entity. Thus, any revenue it receives from its operations and which it utilizes in furtherance thereof is revenue received by a state agency “for the support of government.” [119 N. J. Super. at 502]

Applying the test of McGowan v. Maryland, supra, to the alleged inequality of this ease, it is clear that our Legislature intended that the Authority as a public corporation be assisted via the medium of extra income in its goal of providing general recreation to the people of the State. Obviously, the ultimate goal of public recreation, not just in racing but in many other areas, reasonably justified the differences in the taxing system between the private permit holders and the Authority.

The court has also considered all other arguments alleging a denial of equal protection but is of the view that the statute in so providing a disparity of taxation is nevertheless constitutional in all respects..

Y

The next argument of plaintiffs to be considered is that there will be an actionable public nuisance that will ensue if the permit holders are allowed to conduct a horse race meeting in Cherry Hill from November 25, 1974 through December 31, 1974, and that an injunction should therefore be issued restraining all of the defendants from exercising any rights acquired through the issuance of the joint permit. Defendants assert by way of defense that although some inconvenience will be suffered by various citizens of Cherry Hill by the conduct of racing during the period in question, such inconvenience does not measure up to the existence of a public nuisance. Defendants further argue that even if the court were to find to be present a public nuisance, it would not be actionable or enjoinable because the conduct of horse racing by a permit holder is a legislatively authorized activity.

Plaintiffs and defendants offered proofs over a period of many days dealing with the claim of public nuisance. These proofs established that the Garden State race track is located at tlio heart of the Township of Cherry Hill, a community of 70,000 inhabitants spread over 24 square miles. The track itself is located on 250 acres of land at the intersection of State Route 70 and Haddonfield Road, a county highway. This intersection is actually a traffic circle known as the Grove Street Circle. Besides Route 70, the major roads in Cherry Hill in the track vicinity are State Route 38, State Route 41 (also known as Kings Highway) State Route 154 (also known as Brace Road) County Road 544 (also known as Haddonfield Road) and certain other county roads known as Chapel Avenue and Church Road, all of which surround the Garden State Race Track. All of these roads are heavily travelled during the day and are especially so during the homeward bound peak hour of 5 to 6 p.m. Besides the Grove Street Circle, there is another major traffic intersection known as the Ellisburg Circle which is located along Route 70 about two miles east of the Grove Street Circle and where Route 70, Route 41 and County Road 544 intersect. Route 70 at the race track is a triple lane highway and from the Grove Street Circle to Ellisburg Circle and beyond in an easterly direction is a dual highway. Route 38 is a three-lane highway running somewhat parallel to Route 70 which, with Route 70, shares the burden of traffic moving between Cherry Hill and the cities of Philadelphia and Camden where thousands of motorists using these highways are employed. Philadelphia also supplies more than half of the daily attendance at the track.

During the afternoon hours of nonracing days these major circle intersections are not traffic controlled but the Cherry Hill police make periodic observation of traffic flow, and where major congestion becomes imminent, foot patrols are enlisted to maintain a manual flow. During racing days these circle intersections are controlled by Cherry Hill police on a regular basis. Other intersections adjacent to the track, including the exits, are traffic controlled by New Jersey State Police. These police details commence immediately after the last race and continue until regular traffic flow resumes and the track parking is substantially emptied, usually about V/z hours later.

During racing days in the spring of 1974 the number of automobiles which parked on the official parking lot of the track varied between a February weekday low of about 3000 to an April weekday high of about 5000. Saturdays ran about 50% higher than weekdays. Many other automobiles of course found parking in adjoining private lots and spaces. The pattern of attendance indicated quite conclusively that much less attendance could be anticipated during the colder days of the year.

Statistics produced by the secretary to the Racing Commission indicated the daily average attendance at Garden State had dropped considerably between the years 1963 and 1974. In 1963 the daily average paid count was 19,926 while in 1974 the paid daily average had reduced to 12,654. There was credible testimony that the average automobile brought 2.4 persons to the track. There was also credible testimony that the proposed 31-day meeting in late November and December would produce average daily attendance of 8500 to 9000 patrons, much less than prior averages because of two reasons: (1) the colder days of late November and December will itself result in declining attendance and (2) the running of competitive horse racing at the new Keystone Race Track outside of Philadelphia during the same period of time would cause a sharp decline in attendance at Garden State. At 2.4 persons per auto, 9000 persons would produce 3750 automobiles a day.

Many days were spent by the court in hearing testimony from both sides concerning the various traffic counts and studies that had been made from time to time during various months in 1974 and prior, and the projected count of automobiles that might be expected on the various highways surrounding the track during the month of December.

There was credible expert testimony that during December there would be some buildup of traffic on these highways as the Christmas holidays approached because of the location of Cherry Hill Mall, a major shopping mall with two department stores and some 100 smaller stores, located at the intersection of Route 38 and Haddonfield Road, about a half-mile from the race track.

Prom all of the testimony present there is little doubt that there will be significant additional traffic that will exist on the highways surrounding the track for the 1 to iy2-h.vm period following the last race. There was testimony that because of Standard Time and the earlier sunset in December, the last race would be required to go off by 4:30 p.m. in order to be run under visible conditions. The evidence indicated that on these roads the peak homeward bound traffic was reached between 5 and 6 p.m. Thus, this race track traffic would pour into the highways partially during these peak hours, with a 4:30 p.m. race track close. There was testimony that a 3 :30 to 4:00 p.m. close would result in a much reduced traffic collision between the race goers’ vehicles and those of the commuters. It was established that most of the commuters would be travelling on Routes 70 and 38 in an easterly direction, returning from Camden and Philadelphia, while more than half of the race track traffic would he going in a westerly direction back toward Philadelphia. There was testimony that the biggest traffic problems occurred at the Ellisburg Circle, about two miles east of the track along Route 70, where that road intersected with State Route 41 and County Road 1544, whore it was necessary after the last tace of past meets for traffic to be manually directed by three Cherry Hill police. With the presence of the police, traffic was kept moving fairly fluidly even during peak hours.

It was further established by defense expert testimony that notwithstanding the expected commuter rush between 4 to 5 p.m. and 5 to 6 p.m., there was still room during those hours for some 4000 automobiles to exit the track parking lot onto the three major highways, Route 70, Route 38 and Haddonfieid Road, and still maintain a movement of traffic, albeit with the aid of police at key intersections to keep traffic moving, at a moderate pace. Indeed, the movement of traffic would, in the view of the court, be no worse than has been existent during the past racing sessions at Garden State over a period of many years.

Plaintiffs assert that all of these described conditions of the highways would cause such a slowdown or stoppage of traffic as to compel the court to conclude that a public nuisance would thereby be created and the court is asked to enjoin the defendants from the running of horse races during the 31 days between November 25 and December 31, 1974 in order to abate the anticipated public nuisance.

In 66 C. J. S. there will be found the following definition of a nuisance:

§ 1. Although the term “nuisance” has been regarded as incapable of precise definition, so as to fit all cases, it has also been held to be a term with a well defined legal meaning, and in legal phraseology applies to that class of wrongs which arise from the unreasonable, unwarrantable, or unlawful use by a person of his own property, real or personal, or from his own improper, indecent, or unlawful personal conduct, working an obstruction or injury to a right of another, or of the public, and producing material annoyance, inconvenience, discomfort or hurt.
§ 2. Nuisances are often classified either as public or private or both. A nuisance is common or public where it affects the right enjoyed by citizens as part of the public * * *.

In 58 Am. Jur. 561 the following definition appears:

A public nuisance has been defined as the doing of or the failure to do something that injuriously affects the safety, health, or morals of the public, or works some substantial annoyance, inconvenience, or injury to the public, and as a nuisance which causes hurt, inconvenience, or damage to the public generally, or such part of the public as necessarily comes in contact with it in the exercise of a public or common right.

In the case of Lieberman v. Saddle River Tp., 37 N. J. Super. 62 (App. Div. 1955), the court held that the mere maintenance of a Little League baseball field for the enjoyment of juvenile players was not a nuisance per se. The opinion noted that

The trial judge resolved that the plaintiffs had failed clearly and convincingly to prove that the alleged annoyances are so material and substantial in character, * * * as to require the extraordinary relief prayed for by the plaintiffs. Our examination of the record does not incline us to overthrow that conclusion.

Applying these definitions of public nuisance to the traffic conditions anticipated during the critical period here, this court is of the view that while there will be some degree of inconvenience to commuters who are on these highways when the track traffic spills onto the highways, conditions; will be no more critical than they have been during many days of past racing seasons. Such conditions would not be so material or substantial in character as to amount to a public nuisance such as to authorize here the extraordinary remedy of an injunction.

Plaintiffs, in charging a public nuisance, assumed the burden of establishing their canse of action by clear and convincing evidence. They have failed to so establish an anticipated public nuisance and their complaint thereon for injunction as well as for damages must fail.

Defendants assert that even if the activity at the track would constitute a public nuisance, an injunction could not issue becaitse the conduct of horse racing is a legislatively authorized activity and hence not enjoinablo. This argument goes that the New Jersey Legislature has authorized horse racing in New Jersey, N. J. S. A. 5 :5-22 et seq.j the Legislature has authorized racing by one permit holder at the track of «mother, N. J. S. A. 5:5-47; the Legislature has authorized racing by the New Jersey Sports and Exposition Authority, N. J. S. A. 5:10-1 et seq., and finally, the Racing Commission, pursuant to all of this legislative authority, has issued the appropriate permits to the Authority and Garden State to operate.

Our Chancery Division has dealt with this issue in Borough of Westville v. Whitney Home Builders, 32 N. J. Super. 538 (1954). In that case the State Department of Health had authorized the construction of a sewage disposal plant Avhich was later said by plaintiff to be a public nuisance. In denying the requested injunction Judge Haneman (later Justice of the Supreme Court) held that

Even though it be admitted, for the sake of this motion alone, that the construction and operation of a sewage disposal plant, as approved by the Department of Health, would constitute a public nuisance, the plaintiffs are without remedy before this court. The Legislature has seen fit to make the commission of such a public nuisance lawful and has placed the sole power to permit and control such a public nuisance within the jurisdiction of the State Department of Health. The Legislature has the power to make lawful, so far as the public is concerned, a work or business which by common law would otherwise be a public nuisance. Garrett v. State, 49 N. J. L. 94, 693 (Sup. Ct. 1886).
Where, as here, the Legislature has authorized the State Department of Health to approve the discharge of effluent from a sewage disposal plant into a stream in this State, even though the discharge of said effluent would, under common law, be deemed a public nuisance, it does not constitute such a public nuisance, [at p. 544]

This ruling was not involved in the appeal of the same case, reported in 40 N. J. Super. 62, at 68 (App. Div. 1956).

In 58 Am. Jur. 2d, § 228 at 831, the following comment appears :

Generally, the courts will not hold conduct to constitute a nuisance where authority therefor exists by virtue of legislative enactment, and there are numerous statements in the cases to the effect that although it otherwise would be one, the doing of that which the law authorizes cannot be a nuisance, or such a nuisance as will give a common-law right of action.

It is tlie view of this court that, even assuming plaintiffs had established an anticipated public nuisance, such nuisance would not be actionable because the Legislature had seen fit to authorize the Commission to issue the permit here for a period covering any time o£ the year, including the time period in issue, subject only to the limitations of N. J. 8. A. o :5-43. Since horse racing at Garden State is ail authorized legislative activity there cannot he an actionable public nuisance.

VI

This leads the court to the last'cause of action of plaintiffs to be discussed, namely, that the action of the Earing Commission at its meeting of September 24, 1974 in granting the joint permit to the applicants was arbitrary, capricious or unreasonable.

It should be noted here that while ordinarily a review of the action of a stale agency is by appeal directly to the Appellate Division, It. 2:2-3 (a) (2), the decisions of the New Jersey Eaeing Commission are specifically reviewable by a proceeding in lien of prerogative writ as prescribed by N. J. 8. A. 5 :5 — 60.

While the action of an administrative agency is presumed to be valid, Elizabeth v. Sullivan, 125 N. J. Super. 569 (App. Div. 1973), the reviewing court has the power to review the Commission’s actions and, if necessary, make independent findings thereon, although it will not substitute its judgment for that of the Commission where there is proof to support the Commission action and its judgment is not arbitrary, capricious or unreasonable. East Patterson v. Civil Service Dept., 47 N. J. Super. 55, 65 (App. Div. 1957).

Applying these concepts to the facts here, this court is of the view that while there was ample reason for the Commission to grant the disputed joint permit to race at Garden State during the time period of November 25, 1974 to December 31, 1974, the Commission in the pursuit of its responsibilities had the duty to determine whether terms or conditions should have accompanied the issuance of the permit. At the hearing on September 24, 1974 conducted by the Commission, Mayor Holden of Cherry Hill offered • a written statement as well as an oral presentation in which he brought to the attention of the Commission the probable traffic snails that would ensue. His statement in evidence asserted that “the business community is clearly liable to suffer especially this Christmas, season. The prospect of massive traffic jams from one end of Cherry Hill to the other will drive shoppers away from our local stores * * The mayor went on in his statement to bring to the Commission’s attention that the traffic circle problems would cause great cost to the township for which he was asking state relief. Much of this cost according to the evidence was involved in the furnishing of police details on control traffic at the two circles as well as at other intersections near the track during the racing season.

It is the view of this court that there was a duty on the Commission to give its earnest consideration to the position of the Township of Cherry Hill. It had the right and duty to investigate the problems by resting the issuance of the permit conditioned upon whatever requirements it deemed to be just and appropriate. Indeed, this was conceded by defense counsel at argument. There also was testimony from the secretary of the Racing Commission that on occasions in the past permits had been issued with conditions attached.

This court then is of the view that the Commission should have acted in two areas: (1) it should have considered the imposition of a cut-off time for the running of the last daily race, and (2) it should have determined whether extra traffic police needed to keep traffic moving before and after the races should be provided for or paid by the permit holders.

Ordinarily the court would be loathe to enter into fact-finding responsibility in reviewing the action of a state agency but rather would remand to the agency with direction to consider the evidence and make appropriate findings. However, since time does not permit such action here, this court prefers to assume the duty of making these findings, as authorized by East Patterson v. Civil Service Dept., supra.

All of the evidence that was considered in this case by the court, although not establishing a public nuisance, leads the court to find that on week-days during the period in question the addition of race track traffic to the commuter and holiday traffic on the highways and circles near the track will create a substantial slowdown of traffic. Some of the problems can bo minimized by an early closing hour for the track. The heaviest hour of commuter traffic on weekdays is that between 5 and Q p.m. About 1 to V/2 hours is needed to empty the track parking lot. Plaintiffs proofs showed that a closing time between 3 p.m. and 3:30 p.m. would most effectively reduce the impact of vehicles leaving the track.

N. J. S. A. 5 :5-84 provides that racing may not commence before 12 noon. There was defense testimony that nine races were contemplated, spaced one-half hour apart. Further testimony indicated that a start of 12:30 p.m. was planned. This would project a ninth race starting time of 4:30 p.m. However week-day traffic is such that evacuating the track parking lot just after 4:30 p.m. would create the greatest traffic problems because much of it would join the 5 to 6 p.m. commuter peak. There was defense testimony from the secretary of the Commission that when attendance at any track meet was low, the time between races was reduced to as little as 25 minutes. If the first race commenced at 12 noon and nine races were spaced 25 minutes apart, the last race could be scheduled at 3:20 p.m. Even if emergency problems caused a delayed start, the last race would he run by 3 :30 to 3 :45 p.m. This would result in the earlier departure of track patrons and would cause most of the parked cars to leave before the 5 o’clock peak. All of these findings apply to weekday racing. Since there were no special Saturday or holiday problems established, other than expected shopping traffic, there would appear to he no reason why any special closing should apply to those days.

As to the police problem, there is proof that the township supplied an average of 12 police officers on each racing day during the track exit period, in addition to State Police on duty at the track exits. These township1 officers were on duty at the two circles and at various other intersections near the track. Before the opening of races the township supplied an average of five police officers on each racing day in addition to State Police. None of these locations required traffic details on nonracing dajrs. The township was reimbursed for the salaries of some of these men, and others were assumed by the - township. The court finds, however, that since their traffic duties are occasioned solely bjr reason of track traffic, the, township should be entitled to total reimbursement for these expenses. This applies both to entrance costs as well as exit costs for such number of men as the Director of Public Safety shall determine to be necessary.

It is the view of the court that the action of the Commission was unreasonable in not having provided conditions to accompany the issuance of the joint permit. These conditions should have been that:

(1) The last race on every week-day shall be scheduled for not later than 3:30 P.M., and in the event of an emergency condition that shall require an extension, such race may commence up to 3 :45 p.m., but not thereafter.

(2) The permit holders shall reimburse the Township of Cherry Hill for all police salaries involved with respect to the handling of traffic at the circles and other locations where needed both before the races and after the races on all days of racing, including weekdajrs, Saturdays and holidays, during the period November 25, 1974 to December 31, 1974.

This court therefore orders and directs that the joint permit issued to defendants Garden State and Authority be amended so that it will be subject to the two conditions above prescribed.

No costs to any of the parties.