author: Pee Cubiam.

text:
    UFHEIL CONSTRUCTION COMPANY, INC., A CORPORATION OF THE STATE OF NEW JERSEY, PLAINTIFF-CROSS APPELLANT, v. BOROUGH OF ORADELL, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, AND GEORGE L. BRUGNOLI, IN HIS CAPACITY AS CHIEF OF POLICE IN THE BOROUGH OF ORADELL, DEFENDANTS-THIRD PARTY PLAINTIFFS-RESPONDENTS, v. THE COUNTY OF BERGEN, A MUNICIPAL CORPORATION, THIRD PARTY DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Submitted January 30, 1973
    Decided March 20, 1973.

      Before Judges Kolovsky, Matthews and Am

      Messrs. Kopp, Knoepfel & Toomey, attorneys for cross-appellant (Mr. Richard B. Knoepfel, of connsel and on the brief).

      Messrs. Major & Major, attorneys for respondent, Borough of Oradell (Mr. James A. Major, of counsel).

      Mr. Michael J. Ferrara, County Counsel, attorney for Third Party Defendant-Appellant.
   Pee Cubiam.

This appeal by the County of Bergen, in which plaintiff joined, is from an order which provides in pertinent part that:

* * * tlie said County of Bergen is ordered to conduct a hearing on the merits of Ordinance No. 5T9, Section 3-2 with suitable notice to the Borough of Oradell [and to the plaintiff] of the time and place of said hearing, and in the conduct of said hearing the Board of Chosen Freeholders may elect to conduct the hearing as a body, or in its discretion require such a hearing to be conducted by a designated Committee of the Board, or by an official designated by the Board in whom the Board has confidence, but the ultimate determination of whether ordinance No. 579, Section 3—2 shall be approved or disapproved shall be the action of the entire Board to be manifested fay an appropriate resolution.

The appeal is only from so much of the quoted order as directs the county to conduct a hearing on the merits of the borough’s ordinance. No objection is advanced to the direction that the ultimate determination of whether the ordinance shall be approved or disapproved shall be manifested by an appropriate resolution of the county’s board of chosen freeholders (county board).

The facts are not in dispute. Oradell Avenue is a county road under the jurisdiction of the county board of freeholders. It traverses the borough. On December 16, 1953 the county board had adopted a resolution limiting the weight of trucks on that road to ten tons. On November 17, 1971 the. county board adopted a resolution repealing the ten-ton. weight limitation along Oradell Avenue. That resolution was approved by the State Commissioner of Transportation on December 7, 1971. Such approval was required before the resolution could become effective. N. J. 8. A. 39 :4-8.

On December 12, 1971, some three weeks after the board had adopted its resolution rescinding the weight limitation, the borough adopted ordinance No. 579. Section 3—2 of that ordinance purports to prohibit trucks weighing over ten tons from using the streets set out in Schedule V. One of the streets listed in Schedule V is Oradell Avenue between Grant Avenue and Forest Avenue. Two other streets listed in the Schedule, Kidgewood Avenue and Soldier Hill Boad, are, according to plaintiff, also county roads.

On December 17, 1971 Oradell’s attorney forwarded a copy of ordinance No. 579 to the board of freeholders and asked fox a “review” of the provisions applying to county roads. Pie received a letter from the Director of Public Works, Supervisor of Eoads, dated January 11, 1972, reading in part as follows:

With respect to Section 3-2, the Board has ruled that since County roads are considered to be designed for the movement of vehicles between municipalities, it is not reasonable to impose weight restrictions on vehicles using such roads, unless necessary to protect the integrity of a structure. The County can not, therefore, concur in the provisions of Section 3-2 and the accompanying Schedule V, insofar as they relate to County roads.

In March 1972 the present action was instituted by Ufheil against the borough and its chief of police seeking a declaration that the borough’s ordinance, which would prevent Ufheil’s trucks weighing more than ten tons from using the three county roads lying within Oradell, was invalid because the ordinance had not been approved by the county board of freeholders and by the State Commissioner of Transportation.

We interrupt the chronology of events to note that plaintiff was clearly entitled to the relief it sought, relief designed to prevent further prosecution of its emph^ees for alleged violations of the borough ordinance of December 12, 1971. The ordinance provision relating to weight limitation on Oradell Avenue is ineffective and will not become effective unless and until (1) the county board by resolution consents to the borough’s regulating traffic on that county road, N. J. S. A. 39:4-197.2, and (2) the borough ordinance and the county’s resolution are approved by the State Commissioner of Transportation. N. J. 8. A. 39: 4-202; N. J. 8. A. 39 :4-8.

Plaintiff’s right to relief being clear, the only controversial issue remaining in the case involves the propriety of the relief granted the borough by the third-party complaint it had filed against the county.

Several preliminary observations should be made. The controlling statutory provision is not, as the trial court assumed, N. J. 8. A. 27:16-71 which provides:

The governing body of a municipality may by resolution take over the care and control of a county road or portion thereof within the municipality, but the resolution shall not become effective until consented to by the board of chosen freeholders. The resolution expressing the consent shall be filed in the office of the county clerk.

but rather N. J. 8. A. 39:4-197.2, which reads as follows:

Any municipality, which maintains a paid police force, may, with the consent of the board of chosen freeholders of the county, by ordinance, regulate traffic and parking along and upon any county road or part thereof, lying within its corporate limits, in the same manner and to the same extent that it is authorized by law to regulate the same upon municipal roads and streets.

The borough did not seek to “take over the care and control” of the county road; what it sought to do was to “regulate traffic” on the county road.

While the borough council should have adopted a resolution requesting the county board to grant consent pursuant to N. J. 8. A. 39 :-4-197.2 rather than having the proposal submitted in a letter from its attorney asking “for a review of [the ordinance] provisions which applied to County roads,” the irregularity is of no moment. It was not the basis for denial embodied in the letter of the county’s Director of Public "Works and Supervisor of Eoads.

Further, we agree with the trial court that the Board was required to consider the borough’s request at one of its regular or special meetings and express, in a resolution adopted by it, its decision either to grant or deny the borough’s request. The requirement for such consideration at a formal public meeting of the board is unaffected by the fact that the board had but recently obtained state approval of a regulation directly contrary to what the borough proposes, although that circumstance may be considered by the board in reaching a decision on the request.

We do not agree, however, with the trial court’s determination that the board is required to conduct the hearing on the merits of the ordinance provided for in the order under appeal.

When an administrative agency or a municipal body is called upon to act qwasi-judicially, due process requires that a hearing be held on notice to the parties in interest and that they be given an opportunity to present relevant evidence in support of, or in opposition to, the specific application involved.

However, as the trial court acknowledged, the action requested of the county board by the borough, the cession cf the county’s statutory power to regulate traffic on county roads, is not a judicial act; it is a legislative act. Traction Co. v. Board of Works, 56 N. J. L. 431, 437-438 (Sup. Ct. 1894), aff’d o.b. 57 N. J. L. 710 (E. & A. 1895).

There is no requirement that the governing body of a municipality or county hold a judicial type hearing before acting legislatively. “Where the law is silent as to the mode of procedure, no particular formality in the enactment of an ordinance need be adopted.” 5 McQuillin, Municipal Corporations, (3d ed.) § 16.10 at 145.

While some statutes do require that a legislative body give and publish notice of its intent to adopt an ordinance or resolution — see, for example, the provisions regulating the procedure for the adoption of municipal ordinances, N. J. 8. A. 40:49-2 et seq. — there is no statute which provides for such notice prior to the adoption by a county board of freeholders of a resolution of the nature here involved.

We do not infer that it would not be appropriate — it would be — for the county board to consider and weigh such material as may be submitted to it by the interested parties and the public generally with respect to the requested action. Further, it would be appropriate for the board to advise the parties of the date of the meeting at which the request is to be considered. The extent to which such presentations by the parties may be made orally at the board meeting, rather than in writing before or at that meeting, will depend on the rules of procedure which govern meetings of the board.

So much of the order appealed from as directs that the county conduct a hearing on the merits of the board’s ordinance is reversed and the cause remanded to the trial court for further proceedings consistent with this opinion.


source: Caselaw Access Project

author: Pee Curiam.

license: Public Domain

text:
    STEVEN SENTE, PLAINTIFF-APPELLANT, v. MAYOR AND MUNICIPAL COUNCIL OF THE CITY OF CLIFTON ET AL., DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued February 26, 1973; Supplemental Material Filed February 29, 1973
    Decided March 28, 1973.

      Before Judges Lewis, Carton and Mintz.

      Mr. Peter A. Buchsbaum argued the cause for appellant.

      Mr. Arthur J. Sullivan, Jr. argued the cause for respondents.
   Pee Curiam.

This appeal involves a challenge to the validity of an ordinance of the City of Clifton establishing minimum floor space requirements for housing units.

The ordinance, as amended in February 1970, provides in pertinent part:

Space use and location requirements.
No person sliall occupy or let to another for occupancy any dwelling or dwelling unit for the purpose of living therein, which does not comply with the following requirements:
(a) Every dwelling unit shall contain at least 150 square feet of floor space for each occupant thereof up to a maximum of two occupants and at least 100 additional square feet of floor space for every additional occupant thereof, the floor space to be calculated on the basis of total habitable area.

Prior to the 1970 amendment the ordinance required 150 square feet for the first occupant and 100 square feet for each additional occupant.

Plaintiff Sente’s action was prompted by Clifton’s attempt to enforce the ordinance, the effect of which would have been to require him and his family to move from their 4y2-room garden apartment. That apartment had 540 square feet of living space. The amended ordinance requires 800 square feet of living space, since it was occupied by plaintiff, his wife, and five children.

In October 1970 the city housing director informed plaintiff that there would he a six-month grace period on enforcement of the ordinance to allow him and others similarly situated to relocate.

The matter came before the trial court on motion and cross-motion for summary judgment. Plaintiff’s counsel represented to the court that plaintiff, who was superintendent of the garden apartment complex in which his apartment was located, received his quarters rent-free in addition to his monthly wages, and that if he was obliged to move he would undoubtedly lose his job as superintendent. He also represented that plaintiff’s wife suffered from an unspecified emotional problem, which, upon a doctor’s recommendation, required that he he with her as much as possible. He acknowledged that plaintiff’s five children shared the two bedrooms of the apartment and that the parents slept on a sofa-bed in the living room. He also conceded on oral argument that “Mrs. Sente realizes right now that her apartment is not adequate for her and her five children.”

The court had before it an affidavit of defendants’ expert affirming the existence of a correlation between a minimum dwelling space requirement and health, and also affirming the reasonableness of the particular minimum space requirements of the Clifton ordinance. The affiant asserted that the standards of this ordinance were substantially in accord with those recommended by the New Jersey State Housing Code, a proposed model housing code advocated jointly by the Department of Conservation and Economic Development and the Department of Health of the State of New Jersey. Defendants also note that a suggested form of ordinance by the United States Public Health Service has similar requirements. Plaintiff offered no expert evidence to counter these affirmations, although the trial court granted plaintiff 60 days in which to present competent authority to refute them. Upon plaintiff’s failure to do so, the trial court granted Clifton’s motion for summary judgment.

Several events have transpired since the plaintiff filed his notice of appeal from the summary judgment, entered March 29, 1972, which may have a bearing on this appeal. Plaintiff’s wife gave birth to another child, with the result that plaintiff’s family consists of eight persons. Of greater significance is the fact that plaintiff was discharged as superintendent of the garden apartment complex and that, as a result of eviction proceedings brought against him by the apartment owner in October 1972, he and his family relocated in Lodi, New Jersey. Plaintiff has filed a supplemental affidavit in which plaintiff’s wife asserted her belief that the discharge and eviction proceedings were the result of pressure from the city in its attempt to enforce the living space requirements of the ordinance.

We observe at the outset that the issue here presented may now be moot because plaintiff is no longer a resident of the municipality. However, where the public interest warrants a resolution of an issue despite its mootness, the court may decide the matter on the merits. John F. Kennedy Memorial Hosp. v. Heston, 58 N. J. 576, 579 (1971).

We believe this to be such a case.

We are satisfied that the municipality possessed the authority to adopt the challenged ordinance under the police power conferred upon all municipalities. Plaintiff argues that municipalities may make and enforce housing space regulations pursuant to N. J. 8. A. 40 :48-2.3. That statute authorizes municipal authorities to order the repair, closing or demolition of any building found to be unfit for human habitation. We need not determine its applicability here, however, since N. J. 8. A. 40 :48-2 provides a sufficient basis fox this municipal action:

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

In our view, housing space limitations present fundamental policy decisions for determination by municipal governing units. Health regulations are of the utmost consequence to the general welfare, and if they are reasonable, impartial and not against the general policy of the State, they must be submitted to by individuals for the good of the public, irrespective of pecuniary loss. See 39 Am. Jur. 2d, Health, § 20 at 356 (1968). The record, as well as common sense, affirms the existence of a correlation between minimum dwelling space requirements and health.

The ordinance is not in conflict with state law. Quite the opposite. The existence of the State Housing Code indicates a desire on the state level to have municipalities adopt uniform regulations. Nor are we convinced that the particular space requirements adopted by the mnnicipality in this case are arbitrary or unreasonable.

Quite apart from the fact that every ordinance is cloaked with a presumption of validity, plaintiff offered no evidence to challenge its reasonableness — despite the court’s action in allowing plaintiff an additional period of time within which to supply evidence to rebut that of defendants’ expert before entry of the judgment. Summary judgment was thus proper since no genuine issue of fact existed. R. 4:46-2; Judson v. Peoples Bank and Trust Co. of Westfield, 17 N. J. 67, 75 (1954).

We see no substance in plaintiff’s additional constitutional arguments. The argument that the ordinance in question fosters compulsory or indirect birth control, abortion or sterilization programs is very tenuous. It is not demonstrated that its effect is to unlawfully discriminate against any social, economic or ethnic group. It is plainly a health measure.

There is no constitutional right to live in a habitation which has less area than the minimum standard required for the maintenance and preservation of the occupants’ health.

Affirmed.


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

text:
    IN THE MATTER OF THE ESTATE OF JAMES F. LILLIS, DECEASED, LATE OF MONMOUTH COUNTY, NEW JERSEY. MANUFACTURERS HANOVER TRUST COMPANY, EXECUTORS, ETC., APPELLANT, v. SIDNEY GLASER, DIRECTOR, DIVISION OF TAXATION, ETC., RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Submitted February 20, 1973
    Decided March 28, 1973.

      Before Judges Carton, Mintz and O’Brien.

      Messrs. Galvin & McLaughlin, attorneys for appellant (Mr. Maurice B. McLaughlin, on the brief).

      Mr. George F. Kugler, Jr., Attorney General of New Jersey, attorney for respondent (Mr. Stephen Slcillman, Assistant Attorney General, of counsel; Messrs. Herbert K. Glickman and Richard H. Saxe, Deputy Attorneys General, on the brief).
   The opinion of the court was delivered by

Carton, P. J. A. D.

The issue involved in this appeal is whether the proceeds of certain life insurance policies on the life of decedent James E. Lillis are subject to New Jersey inheritance taxes.

Lillis died in July 1963. About a year earlier he had changed the beneficiary provisions on three life insurance policies he then owned. The change consisted of a direction that the proceeds of the policies should be paid to the trustee under the Last Will and Testament of the insured.

In his will testator placed all his property in two trusts under which Manufacturers Hanover Trust Company was designated trustee. Under the first, or marital trust, the trustee was authorized and directed to pay the income to testator’s widow, Amanda, for her life, the principal to be distributed upon her death to such person as she by will appointed. Under the second trust the trustee was directed to pay the income to the widow for life, and upon her death, to testator’s daughter for life, the principal to be distributed upon the daughter’s death to her living descendants. The trustee was given power under both trusts to invade the principal for the benefit of the widow under certain conditions.

When Lillis died the proceeds of the three policies, total-ling some $280,000, were turned over to Manufacturers in accordance with the trust and the policy provision. The Division of Taxation ruled that the proceeds were taxable under N. J. S. A. 54:34-1 et seq. It took the position that these monies came within the definition of taxable transfers under N. J. 8. A. 54:34-1. Manufacturers appealed that decision, contending that this sum was exempt pursuant to N. J. 8. A. 54:3A-4.

N. J. 8. A. 54:34—1 (a) imposes a transfer inheritance tax

Where real or tangible personal property situated in this State or intangible personal property wherever situated is transferred t>y will or by the intestate laws of this State from a resident of this State dying seized or possessed thereof. [Emphasis added]

It seems clear from this statutory language that the proceeds of decedent’s life insurance policies come within the description of property “transferred by will” since such proceeds were transferred according to the terms of trusts established in his will. Thus, the transfers of such proceeds are subject to inheritance tax under this section unless they are elsewliere exempted.

Manufacturers contends that life insurance proceeds indeed are exempt from taxation by virtue of N. J. S. A. 54:34-4 (b), (c) and (f). Before examining these sections, we are mindful of the general principle that exemptions from taxation are strictly construed and the burden of proving tax exempt status rests upon the taxpayer. Bloomfield v. Academy of Medicine of N. J., 47 N. J. 358 (1966).

Subsections (b) and (c) of N. J. 8. A. 54:34^-4 pertain to the movement of life insurance proceeds from a decedent named in a trust instrument. N. J. 8. A. 54:34-4(c) exempts life insurance proceeds passing from a decedent to the trustee:

Property passing to a trustee or trustees of any trust deed or agreement heretofore or hereafter executed, by virtue of any contract of insurance heretofore or hereafter in force insuring the life of a resident or nonresident decedent and the proceeds of which are paid or payable at or after the death of such decedent to such trustee or trustees for the benefit of a beneficiary or beneficiaries having any present or future, vested, contingent or defeasible interest under such trust deed or agreement.

N. J. 8. A. 54-:34^4(b) exempts life insurance proceeds passing from the trustee to the beneficiary:

Property passing to a beneficiary or beneficiaries having any present or future, vested, contingent or defeasible interest under any trust deed or agreement, heretofore or hereafter executed by a resident or nonresident decedent, to the extent that the trust fund results from the proceeds of contracts of insurance heretofore or hereafter in force, insuring the life of such decedent, and paid or payable, at or after the death of such decedent, to the trustee or trustees under such trust deed or agreement.

We construe these exemptions to apply solely to the inter vivos trusts specified in those provisions and not to be applicable to testamentary trusts such as the trusts created by decedent’s will. This we think is evident from the language of the exemptions themselves and also from their legislative history. It appears that the exemptions established in subsections (b) and (c) were adopted in 1929 (L. 1929, c. 144, § 1, pp. 250, 253) in response to the decision in Fagan v. Bugbee, 105 N. J. L. 85 (Sup. Ct. 1928). In Fagan testator had executed a trust agreement on March 16, 1927. On that date he caused several life insurance policies that he owned to be payable, upon his death, to the trustee under the trust agreement. He died less than one month later. The court ruled that the proceeds of the policies were taxable under N. J. S. A. 54:34-1.

The Division contends, and we agree, that Fagan v. Bugbee was concerned solely with an inter vivos trust where decedents will played no part in the devolution of the property, but rather the beneficiaries were named in the inter vivos trust. Therefore, the intent of the Legislature in enacting subsections (b) and (c) was solely to permit the transfer of life insurance proceeds to the named beneficiaries of an inter vivos trust without imposition of a transfer inheritance tax. The language of those subsections clearly reflects this intention. Both subsections exempt life insurance proceeds passing to a beneficiary “under any trust deed or agreement.”

A deed of trust is a classic way of creating an inter vivos trust and can involve real estate. Delivery and acceptance are essential features of a deed. If there is no consideration given by the beneficiary, the transfer is a gift. When the trust deed does involve consideration by the beneficiary, it constitutes a contract. In either situation, the transaction is between living people. This conforms with the concept of a deed as an inter vivos transfer. It is thus evident that the language of subsections (b) and (c), referring as they do specifically to a “trust deed or agreement,” applies only to an inter vivos transaction between living persons whereby the rights to insurance proceeds are conferred upon the beneficiary prior to the decedent’s death. See Bogert, Trusts and Trustees (2d ed. 1965), § 50 at 238; Scott, Trusts (3d ed. 1967), §§ 14.1, 22, at 142, 190. On this thesis a disposition of life insurance proceeds by means of a testamentary trust such as that involved in the present case is not exempt from taxation under these sections.

Manufacturers also argues that subsection (f) gives the proceeds an exempt status. That subsection exempts the proceeds of any life insurance contract paid or payable to any beneficiary other than the estate or the executor of such decedent.

Subsection (f) was enacted by L. 1939, c. 303, § 1, p, 732. The statement accompanying the bill explains that its purpose is to make changes of beneficiaries taxable under the circumstances described in Fidelity Union Trust Co., Ex’r of Gemmell v. McCutcheon [In re Gemmell], 123 N. J. Eq. 315 (Prerog. 1938). In Gemmell there were two life insurance policies, each in the amount of $5,000, in the name of Gemmell, payable to his estate. Shortly prior to his death Gemmell changed the beneficiary from his estate to his wife, reserving the right to make further changes of beneficiaries. However, he did not do so prior to his death. The court held that the change of beneficiary from his estate to his wife was taxable under N. J. S. A. 54:34-1(c) as a bargain * * * intended to take effect * * * at or after [decedent’s] death.”

In view of the Legislature’s stated purpose of dealing with a specific situation described in the Gemmell case, it appears that the Legislature was considering the taxability of life insurance proceeds on a case-by-case basis and that no overall plan as to whether such proceeds would or would not be taxed had evolved. See Tilney v. Kingsley, 43 N. J. 289, 297 (1964). In our view, the application of subsection (f) should be limited to exemptions under circumstances similar to those in the Gemmell ease.

That situation is not presented here. The Legislature does not appear to have dealt with the situation where the proceeds of an insurance policy are to be paid to a testamentary trust. It, of course, may determine that such proceeds should be exempted from taxation. The fact that bills may have been introduced in the State Assembly and Senate in April 1971 and June 1972 dealing with situations of the kind involved in this case tends to confirm the interpretation that the proceeds of life insurance policies paid to testamentary trusts are not covered by presently existing exemptions.

Affirmed.


author: Per Curiam.

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. WILLIAM J. TOLAND, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued February 26, 1973
    Decided March 28, 1973.

      Before Judges Lewis, Cabton and Mintz.

      Mr. William J. Toland, appellant, argued the cause pro se.

      Mr. Solomon Forman, First Assistant Prosecutor, argued the cause for respondent (Mr. Richard J. Williams, Atlantic County Prosecutor, attorney; Mr. Ernest M. Curtis, Assistant Prosecutor, of counsel and on the brief).
   Per Curiam.

Defendant Toland appeals pro se from convictions on two counts of an indictment charging him with falsely making a nomination petition, contrary to N. J. 8. A. 19:34^-2. Concurrent sentences of one to two years in State Prison on each count were suspended. Defendant was placed on probation. He was also fined $100. He was acquitted on related multiple charges of forgery and conspiracy.

This case had its genesis in an election in Atlantic City. The State’s proofs tended to show the following: One White and one Cunningham had evidenced a willingness to file nomination petitions in the 1969 primary for the office of Democratic County Committee. Defendant, a notary public, took their affidavits or certifications to the nomination petitions and also notarized one Jetter’s alleged signature to an affidavit that he had circulated the petition on behalf of these candidates. None of the purported signatures was that of any of these individuals, and defendant knew it, but nevertheless he took their oaths that they had signed before him as notary public.

Defendant’s main point is that the offense for which he was indicted and convicted was not a crime under N. J. 8. A. 19:34-2. That provision reads, in pertinent part, as follows:

No person shall falsely make, falsely make oath to, * * * any certificate of nomination or petition, or any part thereof, or file * * * any certificate of nomination or petition, knowing the same or any part thereof to be falsely made * * *. [Emphasis added]

A violation of this section is a misdemeanor, punishable by imprisonment for not more than five years.

N. J. 8. A. 19:23-ll provides that in primary elections the nominating petitions shall be verified by oath of one or more of the signers of the petition, taken and subscribed before a person legally qualified to administer an oath under the State laws.

The theory of the prosecution’s case was that a verification is an integral part of the petition; that the jurat executed by the one taking the oath is a part of the verification, and that therefore defendant did indeed participate in falsely making the petition in violation of the statute. The theory is founded on the premise that this provision of the Election Law was intended by the Legislature to reach, not only the forger, but also the notary public who participates in the process of making or filing the petition by improperly taking the jurat.

This interpretation of the statutory language and intent finds some support in In re Chirico, 87 N. J. Super. 587 (App. Div. 1965) certif. den. 45 N. J. 32 (1965). There the court rejected the contention that a verification is not a part of a petition, saying:

* * * We find no merit in this contention since we are satisfied that the verification is an essential part of the petition * * *.

Although Chirico involved a civil controversy pertaining to the Election Law, the same reasoning would seem to be applicable here. "We are mindful of the rule often announced that criminal statutes must be strictly construed. However, this rule does not require that the words of an enactment be given their narrowest meaning or that the lawmakers’ evident intent be disregarded. See United States v. Corbett, 215 U. S. 233, 30 S. Ct. 81, 54 L. Ed. 2d 173 (1909).

One of the purposes of the Election Law, of which N. J. S- A. 19 :34—2 is a part, is to purify the politics of the State by preventing fraud and wrongdoing in the nominating procedure. Sadloch v. Allan, 25 N. J. 118, 129 (1957). The statute denounces as criminal anyone who falsely makes any certificate of nomination or petition or any part thereof, or falsely makes oath thereto or files any certificate of nomination or petition, knowing the same or any part thereof to be falsely made.

We are of the opinion that the statute is broad enough to include willful action of the character of which defendant was accused and convicted. The words of N. J. S. A. 19:34r-2 that ff[n]o person shall falsely make,” etc., are not vague and are sufficiently clear to demonstrate a legislative intent to protect the integrity of the Election Law. As the court said in United States v. Giles, 300 U. S. 41, 57 S. Ct. 340, 81 L. Ed. 493 (1937),

The word “make” has many meanings, among them “To cause to exist, appear or occur,” Webster’s International Dictionary (2d. ed.)

In effect, the indictments charge defendant as a notary public with knowingly participating in obtaining false signatures to the verification and then having them certified to be genuine.

We believe this interpretation to be a fair one to the words employed and in accord with the evident intent of the Legislature. To hold that it is applicable only to a candidate in the nominating petition or to one directly involved in the filing procedure would frustrate the legislative objective of the statute.

The jury was justified in finding from the evidence that defendant, as a notary public, certified and attested under his seal that the persons who appeared before him and to whom he supposedly administered the required legal oath were in fact and to his knowledge not the persons they purported to be. It was thus warranted in concluding that he had falsely made the petition or an essential part thereof.

We perceive no substance to the additional arguments advanced by defendant.

Affirmed.


author: Pek Cukiam.

text:
    SLEGERS-FORBES, INC., A NEW JERSEY CORPORATION, AND MALCOLM S. FORBES, PLAINTIFFS-APPELLANTS, v. NEW JERSEY HIGHWAY AUTHORITY, A BODY POLITIC AND CORPORATE, GARDEN STATE PARKWAY, AND JOHN B. GALLAGHER, DIRECTOR, DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Submitted March 12, 1973
    Decided March 29, 1973.

      Before Judges Ekitz, Lynch and Tkautwein.

      Messrs. Ozzard, Rizzolo, Klein, Mauro and Savo, attorneys for appellants (Mr. George A. Mauro, Jr. on the brief).

      Messrs. Hiering, Grasso, Gelzer & Kelaher, attorney for respondents (Mr. Sheldon R. Franklin, attorney).
   Pek Cukiam.

Plaintiffs challenge as arbitrary, capricious and unreasonable a 1961 resolution adopted by defendant Hew Jersey Highway Authority whereby the use of motorcycles is barred on the Garden State Parkway. They also charge that the resolution is unconstitutional in that it violates the Fourteenth Amendment of the United States Constitution. In any event, say plaintiffs, there is no reasonable relationship today between the prohibition in 1961 of motorcycles on the Parkway and the health, safety and welfare of the public.

Administrative regulations such as that here involved are endowed with a presumption of validity and unless clearly ultra vires on their face, the person attacking them has the burden of proving otherwise. Cole Nat. Corp. v. State Bd. of Examiners, 57 N. J. 227, 231 (1970). It is well recognized that the Highway Authority has broad powers in the area of traffic flow. McKenna v. N. J. Highway Authority, 19 N. J. 270, 281 (1955); N. J. S. A. 27:12B-18 (g). Though a regulation of motor vehicles, even to the extent of their complete exclusion from particular streets may be considered drastic, a court is not at liberty to substitute its judgment for that of the governing authority where the regulation bears a direct relationship to the public safety and is reasonable and not arbitrary. Garneau v. Eggers, 113 N. J. L. 245 (Sup. Ct. 1934). And we may not substitute our independent judgment for that of an agency such as the Highway Authority where its findings are supported by substantial evidence.

Plaintiffs rely on State v. Ernst, 110 N. J. Super. 520 (Cty. Ct. 1970), where the court held invalid a regulation of the Atlantic City Expressway Authority which prohibited operation of motorcycles on the Expressway. The only evidence in support of the regulation there was a report prepared for the Garden State Pathway concerning prohibition of motorcycles on that highway, and a letter from a State Police lieutenant assigned to the Expressway. The court found that neither document afforded support for the Expressway regulation. As the court said, the Garden State Parkway report was prepared for a "completely different roadway, with different characteristics and mileage,” and the lieutenant’s letter “as a basis upon which to adopt a regulation excluding motorcycles is of doubtful value, considering the fact that it was based on his personal beliefs and observations rather than empirical data.” 110 N. J. Super. at 526.

Hot so here. The instant regualtion was bottomed on reports of the Parkway traffic engineer, Kohn, the Parkway operations manager, and the engineering firm of Parsons, Brinkerhoff, Quade and Douglas. Kohn concluded that motorcycles caused 40 times their proportionate share of accidents, resulting in 72 times their proportionate share of injuries and 213 times their proportionate share of deaths. The report by the Parsons firm stated, among other things, that a motorcycle is not suited to cope adequately with bumper-to-bumper, stop-and-go traffic as, for example, encountered on the Parkway in Essex County during rush hours. It concluded:

As the motorcycle, a two-wheeled vehicle, is not compatible with the other vehicles using the Parkway, it is our opinion that increased safety would be attained by a more homogeneous traffic stream from which motorcycles as a completely different vehicle type, would be eliminated.

As a result of these reports and the recommendation of the Traffic Safety Committee, the Authority adopted the subject resolution. Because of the instant challenge to the regulation, the Parkway employed an engineering consultant, Edwards and Kelcey, Inc., to make a current study. In October 1972 that firm filed an extensive report entitled “Motorcycle Operation and Safety — The Garden State Parkway — October 1972.” It concluded that all relevant factors “clearly indicate that the continuance of the prohibition on motorcycle use is in fact both necessary and desirable for the safety of persons and property on the Garden State Parkway.” On October 6, 1972 the Highway Authority, relying on the report of Edwards and Kelcey, Inc., adopted a resolution reaffirming the prior resolution excluding motorcycles from the Parkway.

Since there is substantial evidence in the record in support of the reasonableness and viability of the regulation in question, we affirm.


author: Kolovsky, P. J. A. I).

text:
    AMG ASSOCIATES, A NEW JERSEY PARTNERSHIP, PLAINTIFF-RESPONDENT, v. TOWNSHIP OF SPRINGFIELD, UNION COUNTY, NEW JERSEY, A MUNICIPAL CORPORATION, THE TOWNSHIP COMMITTEE OF THE TOWNSHIP OF SPRINGFIELD AND PAUL GREENSTEIN, AS BUILDING INSPECTOR OF THE TOWNSHIP OF SPRINGFIELD, DEFENDANTS-APPELLANTS, AND THE BOARD OF ADJUSTMENT OF THE TOWNSHIP OF SPRINGFIELD, DEFENDANT.
    Superior Court of New Jersey Appellate Division
    Argued February 6, 1973
    Decided March 29, 1973.

      Before Judges Koeovsky, Matthews and McGowan.

      Mr. Sanford A. Meskin argued the cause for appellants (Messrs. Bloom,, Drobner and Javerbaum, attorneys; Mr. Kenneth S. Javerbaum, on the brief).

      Mr. Vincent J. Apruzzese argued the cause for respondent (Messrs. Apruzzese & McDermott, attorneys; Mr. Frederick T. Danser, III, on the brief).
   The opinion of the court was delivered by

Kolovsky, P. J. A. I).

Defendant township appeals from a judgment declaring that

* * * the provision of S-60 of the Springfield Township Zoning Ordinance of September, 1968, is invalid, arbitrary and unreasonable in its application to the rear of Lots 1 and 2 of Plaintiffs’ subject property; that Plaintiffs are entitled to use the said rear portions of Lots 1 and 2 of the subject premises for office “O” zone purposes, including use for additional on site parking in conjunction with the existing office building and parking facilities; * * *

The judgment further provided that if plaintiff uses the rear portions of the lots for parking, it shall comply with ordinance provisions requiring a 10-foot buffer area, a 6-foot high close woven wood fence, and appropriate evergreen shrub screening.

The controversy here presented stems from the fact that, under the township’s zoning ordinance, properties on the north side of Morris Avenue extending three blocks west from Short Hils Avenue are zoned for office purposes to a depth of only 150 feet. While lots 3 and 4 of plaintiff’s property extend less than 150 feet north of Morris Avenue, the depth of lot 1 is 184 feet and that of lot 2, 195 feet.

Lot 1, fronting 105 feet on the north side of Morris Avenue and 185 feet on the west side of Short Hills Avenue, had been owned by Anna 0. Grate. Lots 2, 3 and 4, which had been owned by a Mr. and Mrs. Lubenau, is a plot fronting approximately 150 feet on Morris Avenue and 118 feet on Lewis Drive. Lot 2, which adjoins lot 1 on the west, is 60 feet wide and 195 feet deep. The depth of lots 3 and 4 from Morris Avenue is 118 feet.

Plaintiff AMG Associates had contracted to purchase lot 1 from Mrs. Grate and lots 2 to 4 from Mr. and Mrs. Lubenau. As required by their contracts, Mrs. Grate and Mr. and Mrs. Lubenau applied to the hoard of adjustment- for use variances, pursuant to N. J. 8. A. 40:55-39 (d), so that the portions of lots 1 and 2 extending beyond the 150-foot zone line could be used for office purposes. The building plans prepared by AMG Associates and submitted with the applications provided for the construction of an office building on the front 150 feet of lot 1 and the us'e of the rear of lot 1 and all of lots 2, 3 and 4 for parking.

The board of adjustment recommended that the variances be granted, with several limiting conditions. The township committee rejected the recommendation and denied the variances sought.

Plaintiff AMG Associates and Anna 0. Grate then filed a complaint in two counts. (The sale by Mrs. Grate was thereafter consummated and she was eliminated as a party plaintiff by the pretrial order.) The first count sought an adjudication not only that the township committee acted arbitrarily in denying the variance but also that the conditions imposed by the board in its recommendation for a variance Avere arbitrary. The second count sought an adjudication that the township’s 1967 zoning ordinance was “void, unconstitutional and ineffective to prevent plaintiffs, or any devisees thereof from using the entire subject premises as permitted in said ‘0’ district of the Township of Springfield,” and a judgment directing the building inspector to issue a permit to erect the proposed office building and “to use the entire subject premises for 'O’ zone use.”

The action was not pretried until 15 months after the complaint Avas filed. By that time plaintiff had changed its building plans and, after the institution of this action, had erected a three-story office building on lots 3 and 4 at the corner of Morris Avenue and Lewis Drive.

The trial court, Grate v. Township of Springfield, 117 N. J. Super. 130, ruled that the changed circumstances resulting from the construction of the building on a portion of the tract other than that indicated on the plans submitted to the board and the township committee made it inappropriate to disturb the denial of the variance by the township committee.

The trial court noted that

* * * when a zoning ordinance is not claimed to be invalid in its entirely, but only to be arbitrary and unreasonable in its application to the owner’s land, the trial court should ordinarily decline to adjudicate this attack upon the ordinance until after the owner has exhausted his remedy to seek relief from the local board of adjustment by applying for a variance. [117 A. J. Super, at 138]

However, it concluded that the quoted requirement was satisfied because a variance had been applied for, albeit with reference to a proposed building at a different location.

We do not agree with that conclusion. In our opinion the changes made in the building site plan after the applications were considered by the municipal bodies should have led the trial court to withhold consideration of the issue of the validity of the ordinance until plaintiff had first presented the changed circumstances to the municipal bodies by way of a new application for a variance.

The physical situation presented after the building was erected on lots 3 and 4 differed substantially from that which would have existed if the building had been erected, as originally planned, on lot 1. The municipal bodies should have been given the opportunity to determine whether that change in the physical situation warranted the grant of a variance permitting plaintiff to use at least part, if not all, of the rear of lots 1 and 2 for office parking purposes.

However, our disagreement with the procedure adopted by the trial court would not in itself warrant a reversal. Cf. Deal Gardens, Inc. v. Bd. of Trustees, Loch Arbour, 48 N. J. 492, 497-498 (1967). We therefore proceed to the merits of the court’s determination that the ordinance provision limiting office use of lots 1 and 2 to a depth of 150 feet was invalid.

The trial court recognized that:

Zoning district lines need not coincide with property lines, and the municipality has the power and authority to set these district lines. The fixing of zoning lines is a critical function of the zoning process and is a matter of legislative discretion. * * *
* * * zoning lines between areas must run somewhere and * * * the municipality is empowered to fix them, and * * * unless they are clearly shown to be unreasonable and arbitrary, courts will not interfere with the discretion of the zoning authorities. [117 N. J. Super, at 138-139]

Nevertheless, the trial court concluded that the ordinance provision was invalid. Its primary reason for that conclusion appears in the following quotation from its opinion:

* * * Plaintiffs hare erected the office building on .that part of their property zoned for that purpose (O zone). It is that part of their property in the rear which is in issue. It is that part of their property in the rear which is zoned for single-family residences (S-60), namely 45 feet of lot 2 of the plot and 34 feet of lot 1 along Short Hills Avenue. As stated supra, as a result of the boundary line passing through this property, this rear portion has become a substandard, undersized lot for residential purposes, and no residence can be constructed on it without a variance. Thus, under the present circumstances, this rear portion of the lot is rendered unusable. [117 N. J. Super, at 143]

Cited by the court in support of its conclusion that the ordinance provision was invalid because it rendered the rear portion of the lots unusable are several out-of-state cases which are readily distinguishable on the facts.

Moreover, whatever may be the rule in other jurisdictions, it has been held in this State that in circumstances such as those presented here, the unusability of the rear portion of the lot does not render invalid a zone line which is not as deep as the lot line of the property. Visco v. Plainfield, 136 N. J. L. 659 (Sup. Ct. 1948).

In Visco it appeared that lands on the northerly side of West Eront Street, between Emma Street and Mariners Place, were zoned to a depth of 100 feet for business, and beyond that depth for “C” residence purposes. Plaintiff Viseo’s lot was 135 feet deep. He sought permission to construct a one-story cement block addition, 14 feet by 16 feet, at the rear of his premises. When his application for a variance was denied, he, on certiorari, attacked both the ordinance limitation and the denial of a variance, contending that

* * * under the ordinance the rear 35 feet of prosecutor’s property are usable only for residential purposes, and the area is insufficient in size for such use, and the regulation therefore deprives him of all use and enjoyment of this portion of his lands in violation article I, paragraph 16 of the State Constitution of 1844, as amended, providing that private property shall not be taken for public use without just compensation, [at 660]

In rejecting the attack, Justice Heher, writing for the former Supreme Court said:

The delineation of such use districts by the local legislative tribunal involves the exercise of a reasonable discretion, controlled by the statutory considerations; and there is no ground for judicial interference unless there has been arbitrary action. There was none such here. The location of the district boundary in a straight parallel line 100 feet back from West Front Street is not assailed as unreasonable or capricious, nor could it well be. The statute R. S. 40:55-31, 40:55-32 empowers the local governing body to “divide the municipality into districts of such number, shape, and area as may be deemed best suited to carry out the purposes” thereof, and directs that the regulation of the structures in such districts shall be “with reasonable consideration, among other things, to the character of the district and its peculiar suitability for particular uses, and with a view of conserving the value of property and encouraging the most appropriate use of land throughout” the municipality; and there is no deviation from this criterion in the zoning for business of the land abutting on AVest Front Street, to the depth indicated, and the restriction to residence uses of all the land to the rear fronting on Emma Street and Mariners Place.
*’ * * A uniform division line was essential to the zoning for residence uses of the lands to the rear of the business zone fronting on the named intersecting streets. An irregular district boundary line would have interfered with the zoning of the land to the rear for the highest and best use to which it was adapted and, perhaps, would have rendered the regulation assailable as lacking in uniformity and discriminatory. There was no obligation upon the local legislative body to none for business all the land of the individual owner, regardless of depth. If that were so, the exercise of the zoning power would be radically restricted where lands on either side of such bisecting division line are in the one ownership; and th/as the statutory policy icould be subverted. * * * [Emphasis added]
* * * Prosecutor’s lands are in the main zoned for business, their best use; and the burden' cast upon the relatively small portion to the rear because of its natural relation to the adjacent lands adapted to residence uses, and zoned accordingly, is purely incidental to the exercise of the zoning authority and offset by the resulting advantages, and thus there is no relievable hardship within the statutory view nor compensable invasion of the fundamental' right of private property, [at 661-663]

As the trial court acknowledged in its judgment, the provision of the Springfield zoning ordinance requiring a 10-foot buffer zone is not unreasonable on its face (State v. Gallop Building, 103 N. J. Super. 367 (App. Div. 1968); Quinton v. Edison Park Development Corp., 59 N. J. 571, 580-582 (1971)), and nothing in the proofs indicated that it is unreasonable in the circumstances of this case. Realistically, in view of that provision, the only effect of the ordinance limitation is to prevent plaintiff from adding to the substantial parking area which it now has on lots 1 and 2, provision for parking on 35 feet of the rear of lot 2 and 24 feet at the rear of lot 1. That “burden cast on the relatively small portion” of plaintiff's lands by the zone line provision of the Springfield ordinance affords no basis for declaring the provision invalid. Visco v. Plainfield, supra.

We turn now to the second reason on which the trial court relied in declaring the ordinance limitation invalid. Here — unlike in Visco — plaintiff did contend, and the trial court found, that the location of the boundary line in a straight parallel line 150 feet back from Morris Avenue was arbitrary and unreasonable because of “the fact that various other areas along Morris Avenue were zoned for office use to a depth of 200 feet along Morris Avenue, up to the easterly side of Short Hills Avenue.” (117 N. J. Super, at 141)

However, we conclude that the record furnishes no warrant for judicial interference with the discretion of the governing body which adopted the ordinance provision limiting to 150 feet the depth of the office zone on the north side of Morris Avenue in the three-block area extending west from Short Hills Avenue. The fact that in other areas of Morris Avenue the office zone depth is 200 feet is not of controlling significance. The setting of different zone depths for office or business districts in different sections of a street such as Morris Avenue may properly be influenced by a desire not to invade, in the respective sections, existing residential areas to the rear of the office or business zone. Plaintiff’s proofs did not overcome the presumption of reasonableness which attaches to the ordinance classification.

The judgment is reversed and the cause remanded for entry of a judgment in defendants’ favor.


text:
    HOWARD HARRIS, JR. AND WILLIAM E. FOWLER, PLAINTIFFS-APPELLANTS, v. THE SALEM COUNTY PLANNING BOARD AND THE BOARD OF FREEHOLDERS OF THE COUNTY OF SALEM, DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued March 12, 1973
    Decided March 30, 1973.

      Before Judges Collesteb, Leofabd and IIalpebf.

      Mr. Oakford W. Acton, Jr. argued the cause for appellants (Messrs. Acton & Point, attorneys).

      Mr. William C. Horner argued the cause for respondent-cross appellant, Salem County Planning Board.

      Mr. George 8. Friedman filed a statement in lieu of brief on behalf of respondent, the Board of Freeholders of Salem County.

      Messrs. Archer, Greiner & Read filed a brief amicus curiae on behalf of Exxon Company, II. S. A.
   Pee Curiam.

The cross-appeals from the summary judgment here involved present the following issues: (a) is that part of the County Planning Act (N. J. 8. A. 40:27-6.2) constitutional which permits boards of chosen freeholders to adopt procedures and standards to compel those seeking subdivision approval to dedicate a portion of their lands abutting a county road so as to conform with the county master plan, and (b) can plaintiffs maintain this prerogative writ action wtihout first exhausting their administrative remedies?

Plantiffs contend N. J. S. A. 40:27-6.2 is unconstitutional because it is a taking of their property without just compensation, contrary to N. J. Const. (1947), Art. IY, § IY, par. 3, and Art. I, § 20. They further contend the subdivision review resolution adopted by the board of freeholders, as authorized by N. J. S. A. 40:27-6.2, “is illegal and ultra vires on its face and in its application” because it does not comply with the standards specified in the statute.

Defendants contend the County Planning Act authorizes and permits the county to constitutionally require dedication of sufficient lands abutting county roads to comply with its master plan, without paying compensation therefor whenever a subdivision is sought. They further contend the subdivision review resolution complies with the standards fixed in the enabling statute. Finally, they contend plaintiffs’ prerogative writ action is premature since they have not exhausted their administrative remedies as required by R. 4:69-5 and section Y of the Salem County subdivision review resolution.

The facts in this case are not in serious dispute, and we will not repeat them as they are accurately and fully enunciated in the trial judge’s opinion, and we incorporate them herein by reference. We emphasize only that this was a request for a minor subdivision wherein plaintiff Harris sought to sell a 4.10-acre parcel containing a dwelling house and outbuilding to plaintiff Fowler out of a 68-acre tract. This is not a case where plaintiffs sought a subdivision to create lots on which buildings were to be erected.

We agree with, the trial judge that the County Planning Act, and in particular N. J. 8. A. 40:27-6.2, is constitutional. However, we do not agree that in every case the couniv planning board may require dedication of lands for rights of way along county roads without paying just compensation to the owners.

Generally speaking, the constitutionality of the County Planning Act (N. J. S. A. 40:27-1 el seq.) rests upon the same legal principles as those enunciated in construing the Municipal Planning Act (N. J. S. A. 40:55-1.1 et seq.). Under the latter statute a municipality is empowered to compel a subdivider to install, within the subdivision, streets and oilier designated improvements. We interpret the cases hereinafter cited as authorizing a municipality to compel a subdivider to install oil-site improvements and to pay so much of the cost thereof which bears a rational nexus to the needs created by and benefits conferred upon the subdivision. Brazer v. Mountainside, 55 N. J. 456, 465-468 (1970); Longridge Builders, Inc. v. Planning Board, Princeton Tp., 52 N. J. 348, 350 (1968); Princeton Research Lands, Inc. v. Princeton Tp. Planning Bd., 112 N. J. Super. 467 (App. Div. 1970), certif. den. 57 N. J 291 (1971).

Similar, if not greater, powers are given counties under the County Planning Act. In the instant case, conditioning subdivision approval upon a 16-k2-foot irrevocable dedication for a distance of 450 feet along Marlton Road, is at least as much a taking as requiring a subdivider to make and pay for off-site improvements which may benefit the subdivision as well as the general public. Unfortunately, no proofs were presented by either plaintiffs or the county to show lo what extent, if any, the required dedication comported with the county’s master plan for roads, what uses were to be made of the road and the remaining lands by the subdivider, or what needs were created by and benefits conferred upon the subdivision. Section IV of the county subdivision review resolution, adopted pursuant to N. J. 8. A. 40:27-6.2, anticipated that there might be various instances where the county planning hoard would not be justified in requiring a right of way dedication where a hardship existed, or where the subdivision created no added burden to the county. Under such circumstances, the county planning board was authorized to waive or adjust the dedication requirement. If waived, and thereafter the county decided to widen the existing road, it would have to condemn and pay for what land it took. The planning board urged plaintiffs to make such application for a waiver, but for reasons best known to plaintiffs they refused to do so and brought this prerogative writ suit based on an alleged unconstitutional taking.

This brings us to the issue of exhaustion of remedies. The County Planning Act and the subdivision review resolution adopted by the county in conformity therewith, when considered together provided the means and procedure to compel dedication and relief therefrom when warranted. Thus it complies with due process requirements. The anticipated problems a subdivision will create for. a county when it is approved and completed, and the benefits it will derive therefrom, are best left in the first instance to the county planning board. The board is on the scene, is familiar with the local problems and plans, and can better understand the proffered proofs. Therefore, we are of the opinion that, since the issues are factual rather than legal, and justice does not require otherwise, plaintiffs must first exhaust their administrative remedies before seeking relief in the courts. B. 4:69-5; see also Mutual Home Dealers Corp. v. Comm’r of Banking and Insurance, 104 N. J. Super. 25 (Ch. 1968), aff’d 55 N. J. 82 (1969).

Since this case is one of first impression under the County Planning Act, and we are in unchartered procedural waters, we think it just to give plaintiffs an opportunity to apply for relief to the county planning board as herein-before indicated. We suggest plaintiffs supplement their original application for subdivision approval and request relief from the county planning board’s automatic rule requiring a right of way dedication in all subdivision applications where county roads are involved. While the automatic rule appears harsh at first blush, it is a practical approach to the many problems presented on subdivision applications. There is nothing unreasonable in requiring a subdivider to bear the burden of coming forward with proofs when seeking relief. If plaintiffs fail to apply for relief by May 1, 1973, the judgment below dismissing their complaint will be affirmed for the reasons set forth herein.

If plaintiffs seeks the relief herein suggested by May 1, 1973, the county planning board shall take proofs and determine whether the requested minor subdivision justifies the compelled dedication, or whether the county be relegated to a possible future condemnation.

Eemanded in accordance herewith. Jurisdiction is not retained.


author: Lane, J. S. C.

text:
    JAMES M. COLEMAN, JR., MONMOUTH COUNTY PROSECUTOR, PLAINTIFF, v. EDWARD N. WILSON, SR. AND C AND V THEATRE CORPORATION, DEFENDANTS.
    Superior Court of New Jersey Chancery Division
    Argued March 21, 1973
    Decided March 21, 1973.

      Mr. Malcolm V. Carton, First Assistant Prosecutor, argued the cause for plaintiff (Mr. Frederick J. Kalma, Assistant Prosecutor, on the brief).

      Mr. Herbert F. Kassner, of the Yew York Bar, argued the cause for defendants (Mr. Michael 8. 8odowick, Attorney).

      Mr. Alfred J. Luciani, Deputy Attorney General, argued the cause for George F. Kugler, Jr., Attorney General of the State of Yew Jersey, Amicus Curiae (Mr. David 8. Baime, Deputy Attorney General, and Mr. Luciani, of counsel and on the brief).
   Lane, J. S. C.

Plaintiff, Prosecutor of Monmouth County, instituted this action under N. J. S. A. 2A:115-3.5, seeking injunctive relief to prohibit the further showing of two motion pictures, “Deep Throat” and “Love for Sale”, and for surrender of the films to the Sheriff for destruction in accordance with N. J. S. A. 2A :115-3.7. Defendant Wilson is president of C and Y Theatre Corporation which had shown the motion pictures to the public on various dates during February and March 1973. The Answer admits the showing of the motion pictures but denies that they are obscene. By counterclaim defendants seek a declaration that N. J. S. A. 2A:115—1.1, N. J. S. A. 2A:115-2, N. J. S. A. 2A:115-3.4 and N. J. S. A. 2A:115-3.5 are unconstitutional. The matter is before the court on final hearing.

The issue raised by the counterclaim is the interpretation of N. J. S. A. 2A :115-1.1 and the determination of its constitutionalLty. It is agreed that if that provision is constitutional, the other statutes referred to are constitutional with the exception of N. J. S. A. 2A:115-3.5.

N. J. S. A. 2A:115—1.1 defines “obscene”:

The word “obscene” wherever it appears in the chapter to which this act is a supplement shall moan that which to the average person, applying contemporary community standards, when considered as a whole, has as its dominant theme or purpose an appeal to prurient interest.

This definition was contained in L. 1911, c. 449, § 3. Before the adoption of that act “obscene” had been defined:

(a) The word “obscene” wherever it appears in the chapter to which this act is a supplement shall mean that which to the average person, applying contemporary community standards, when considered as a whole, has as its dominant theme or purpose an appeal to prurient interest.
(b) Any book, publication, picture, writing, record or other mechanical or electronic audio or visual reproduction or other material shall be obscene within the meaning of subsection (a) hereof if it is established that:
(1) The dominant theme of the material taken as a whole appeals to a prurient interest;
(2) The material is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters ; and
(3) Thy material is utterly without redeeming social value.

The Legislature in making the change spoke clearly as to its intent by stating in N. J. S. A. 2A:115-l.la:

'Hie Legislature finds that the standards of obscenity now enunciated in chapter 115 of Title 2A of the New Jersey Statutes as amended and supplemented in recent years is unnecessarily permissive and a hindrance to effective legal action against obscene matter. The Legislature further finds that such unnecessary permissiveness has resulted from the incorporation into New Jersey Statutes of language from influential opinions authored by certain United States Supreme Court justices; which language, however, does not represent binding majority decisions of the Supreme Court and, accordingly, need not bind the Legislature or the Judiciary of this State. The Legislature further finds that the most recent binding definition of “obscenity” enunciated by the United States Supreme Court is represented by section 1 of chapter 165, laws of 1962, prior to subsequent amendments; and that said subsequent amendments ought to he repealed in order to reestablish a workable definition of “obscenity” within the framework of our statutory law, and that certain other changes should be made in other statutes for the purpose of consistency.

In Cine-Com Theatres Eastern States, Inc. v. Lordi, 351 F. Supp. 42 (D. N. J. 1972), a three-judge court declared that the definition of obscenity in N. J. S. A. 2A:115-1.1 was at variance with the definition of obscenity established by the United States Supreme Court and therefore unconstitutional. [351 F. Supp. at 49-50] On the other hand State v. Shapiro, 122 N. J. Super. 409 (Law Div. 1973), held the definition constitutional. In that decision after analyzing the more recent cases of the United States Supreme Court, the Law Division concluded that the correct test of obscenity need not include a finding that the material was utterly without redeeming social value. In short, the Law Division agreed with the Legislature’s expression of the state of the law in N. J. S. A. 2A:115-1.1a.

In A Book, Etc. v. Attorney General of Com. of Mass., 383 U. S. 413, 86 S. Ct. 975, 16 L. Ed. 2d 1 (1966), the prevailing opinion stated:

We defined obscenity in Roth [Roth v. United States] in the following terms: “[W]hether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest.” 354 U. S. [476] at 489, 77 S. Ct. [1304] at 1311. [1 L. Ed. 2d 1498], Under this definition, as elaborated in subsequent cases, three elements must coalesce: it must be established that (a) the dominant theme of the material taken as a whole appeals to a prurient interest in sex; (b) the material is patently oifensive because it affronts contemporary community standards relating to the description or representation of sexual matters; and (c) the material is utterly without redeeming social value, [at p. 418, 86 S. Ct. at p. 977]

State v. Shapiro, supra, refused to recognize as binding that definition, stating, “At best, then, can it be said that four of the nine justices agreed with the rationale of the lead opinion.” [122 N. J. Super, at 429] Although much can be said to support the reasoning of the Law Division’s decision, this court does not feel free to agree.

The vast majority of courts considering the test of obscenity have felt themselves bound by the definition in A Book, Etc. v. Attorney General of Com. of Mass., supra, 383 U. S. at 418, 86 S. Ct. 975; E. g., United States v. A Motion Picture Film, 404 F. 2d 196, 199 (2 Cir. 1968); NGC Theatre Corporation v. Mummert, 107 Ariz. 484, 489 P. 2d 823, 828 (Sup. Ct. 1971); Stroud v. State, 273 N. E. 2d 842, 847-848 (Sup. Ct. Ind. 1971); Smith v. Commonwealth, 465 S. W. 2d 918, 920 (Ct. App. Ky. 1971); Woodruff v. State, 11 Md. App. 202, 273 A. 2d 436, 443-444 (Ct. of Spec. App. 1971) ; State v. Carlson, 291 Minn. 368, 192 N. W. 2d 421, 426 (Sup. Ct. 1971); Commonwealth v. Dell Publications, Inc., 427 Pa. 189, 233 A. 2d 840, 846 (Sup. Ct. 1967), cert. den. 390 U. S. 948, 88 S. Ct. 1038, 19 L. Ed. 2d 1140 (1968); Court v. State, 51 Wis. 2d 683, 188 N. W. 2d 475, 480 (Sup. Ct. 1971).

State v. Hartstein, 469 S. W. 2d 329 (Sup. Ct. Mo. 1971) adopted the same reasoning as State v. Shapiro, supra, and declined to apply social value as an independent test of obscenity. The United Slates Supreme Court granted certiorari and reversed in a memorandum decision citing Redrup v. New York, 386 U. S. 767, 87 S. Ct. 1414, 18 L. Ed. 2d 515 (1967). Wiener v. Calif., 404 U. S. 988, 92 S. Ct. 534, 30 L. Ed. 2d 539 (1971).

In Childs v. State of Oregon, 431 F. 2d 272 (9 Cir. 1970), the State Court had convicted a defendant under an obscenity statute that did not include the social value test. The United States District Court granted a writ of habeas corpus. It was reversed by the Circuit Court which said that it found the materials obscene, using the three prong test. The United States Supreme Court granted certiorari and reversed in a memorandum decision citing Redrup v. New York, supra, 386 U. S. 767, 87 S. Ct. 1414. Childs v. Oregon, 401 U. S. 1006, 91 S. Ct. 1248, 28 L. Ed. 2d 542 (1971).

The New Jersey Supreme Court iu G. P. Putnam’s Sons v. Calissi, 50 N. J. 397 (1967), accepted the test of obscenity set forth in A Book, Etc. v. Attorney General of Com. of Mass., supra, 383 U. S. 413, 86 S. Ct. 975. See also, Keuper v. Wilson, 111 N. J. Super. 489, 493 (Ch. Div. 1970); Lordi v. U A New Jersey Theatres, Inc., 108 N. J. Super. 19, 23-24 (Ch. Div. 1969). The definition of obscenity contained in N. J. S. A. 2A:115-1.1 if read literally is unconstitutional.

It is the duty of the court to construe a statute, if possible, so as to render it constitutional. Camarco v. City of Orange, 61 N. J. 463, 466 (1972); Clifton v. Passaic County Board of Taxation, 28 N. J. 411, 422 (1958). In construing a statute the court must look to the true intention of the law. In Alexander v. N. J. Power & Light Co., 21 N. J. 373 (1956), the court stated:

The statute is to receive a reasonable construction, to serve the apparent legislative purpose. The inquiry in the final analysis is the true intention of the law; and, in the quest for the intention, the letter gives way to the rationale of the expression. The words used may be expanded or limited according to the manifest reason and obvious purpose of the law. The spirit of the legislative direction prevails over the literal sense of the terms. The particular words are to be made responsive to the essential principle of the law. When the reason of the regulation is general, though the provision is special, it has a general acceptation. The language is not to be given a rigid interpretation when it is apparent that such meaning was not intended. The rule of strict construction cannot be allowed to defeat the evident legislative design. The will of the lawgiver is to be found, not by a mechanical use of particular words and phrases, according to their actual denotation, but by the exercise of reason and judgment in assessing the expression as a composite whole. The indubitable reason of the legislative terms in the aggregate is not to be sacrificed to scholastic strictness of definition or concept. * *■ * [at p. 378]

The literal meaning of the words will not necessarily control. In Morss v. Forbes, 24 N. J. 341 (1957), the court stated:

On many occasions the sense or spirit of a statute will prevail over the literal, logical, grammatical meaning of the words, if the latter is not in accordance with reason or the principal design of the statute. The most recent expression of the liberal judicial attitude which strives to avoid a narrow, pedantic construction in accordance with the empty principles of rhetoric alone may be found in Lane v. Holderman, 23 N. J. 304 (1957). See also DeFazio v. Haven Savings & Loan Ass’n, 22 N. J. 511, 518 (1956) ; In re Roche’s Estate, 16 N. J. 579, 587 (1954). [at p. 357]

Defendants argue that the intent of the Legislature has been set forth in N. J. S. A. 2A :115—1.1a and that that intent was specifically to define obscenity without reference to the social value test. Although this court has great respect for the Legislature, it is not bound by the Legislature’s construction of constitutional decisions of the United States Supreme Court. As noted above, the construction placed by the Legislature upon decisions of the Supreme Court is not in accord with current law.

It becomes the obligation of the court to determine whether the Legislature would want N. J. S. A. 2A:115-1.1 declared unconstitutional or to have it construed in such a way as to carry out the primary intent of the Legislature adopting it. In Schmoll v. Greecy, 54 N. J. 194 (1969), our Supreme Court stated:

The remaining question is whether the wrongful death statute may be read to protect the illegitimate child or must fall in its entirety because of this constitutional defect.
Defendant contends the judiciary cannot enlarge the reach of a statute, for that is solely a legislative function. The proposition is obvious enough, and it is equally true that a court may not restrict the scope of a statute. But neither proposition is involved when the question is whether a statute must fall because of a constitutional defect. Rather the question is whether the Legislature would want the statute to survive, and that inquiry cannot turn simply upon whether the statute, if adjusted to the constitutional demand, will cover more or less than its terms purport to cover. Although cases may be found which seem to speak in such mechanical terms, we think the sounder course is to consider what is involved and to decide from the sense of the situation whether the Legislature would want the statute to succumb. See 2 Sutherland, Statutory Construction (Horack 3d ed. 1943) § 2412, p. 189. [at pp. 202-203]

See also, In re Smith, 59 N. J. 236, 237 (1971).

The intention of the Legislature was to forbid obscene matter to the fullest extent permissible under the First Amendment. In State v. Hudson County News Co., 41 N. J. 247 (1963), the Legislature’s intent in dealing with obscenity was stated:

AVe believe that the Legislature in enacting N. J. S. 2A:115-2, intended to forbid obscene matter to the fullest extent permissible under the First Amendment, made applicable to the states by the Fourteenth Amendment. Accordingly, the “contemporary community standard” to be applied in enforcement of the statute must comport with the limitations imposed on the State by and the freedoms guaranteed the individual by the First Amendment. We are of the opinion that such a standard must necessarily be uniform throughout the nation, [at p. 265]

When confronted with a definition of obscenity similar to that contained in N. J. S. A. 2A:115-1.1, the Supreme Court of Pennsylvania in effect construed the statute to include the three prong test of A Book, Etc. v. Attorney General of Com. of Mass., supra, 383 U. S. 413, 86 S. Ct. 975. Commonwealth v. Lalonde, 447 Pa. 364, 288 A. 2d 782 (Sup. Ct. 1972). See also, Entertainment Ventures v. Brewer, 306 F. Supp. 802, 816 (M. D. Ala. 1969).

In considering the constitutionality of N. J. S. A. 2A:115-1.1 the court in Cine-Com Theatres Eastern States, Inc. v. Lordi, supra, 351 F. Supp. 42, was not in a position to construe the statute. It had to consider the statute as it was written. Cf., United States v. Thirty-Seven (37) Photographs, 402 U. S. 363, 369, 91 S. Ct. 1400, 28 L. Ed. 2d 822 (1971). This court is under no such restriction. N. J. S. A. 2A :115-1.1 is construed to define as obscene only such matter (a) the dominant theme of which taking the matter as a whole appeals to a prurient interest in sex, (b) is patently offensive because it affronts contemporary community (nation-wide) standards relating to the description or representation of sexual matters and (c) is utterly without redeeming social value. So construed N. J. S. A. 2A: 115-1.1 is constitutional.

Defendants assert that notwithstanding the constitutionality oí N. J. S. A. 2A:115-1.1, N. J. S. A. 2A:115-3.5 is unconstitutional. Their argument is that after a finding of obscenity the final judgment must contain a provision directing the surrender of the offending material to the Sheriff and a destruction of it by the Sheriff. N. J. S. A. 2A:115-3.7. Since there is no provision in the legislation for an automatic stay of the judgment pending appeal, it is argued that the legislative scheme is unconstitutional under Blount v. Rizzi, 400 U. S. 410, 91 S. Ct. 423, 27 L. Ed. 2d 498 (1971). The argument must fail. It is well established in this State that preliminary injunctions will be issued whore the subject matter of the litigation would be destroyed or substantially impaired pending hearing were such an injunction not to issue. Benton v. Kernan, 126 N. J. Eq. 343, 345 (E. & A. 1939); General Electric Co. v. Gem Vacuum Stores, 36 N. J. Super. 234, 237 (App. Div. 1955). The identical practice is followed when an appeal is taken from a judgment of a trial court. If this court determines that the films are obscene and orders that they be seized by the Sheriff and destroyed and thereafter an appeal is taken, upon application made the court would stay, pending appeal, that portion of the judgment that directs the Sheriff to destroy the films. Blount v. Rizzi, supra, 400 U. S. 410, 91 S. Ct. 423, is inapposite. That case dealt with a failure to require a prompt judicial review of an administrative finding of obscenity.

“Deep Throat” is a one hour and five minute motion picture portraying a young woman whose clitoris is in her throat. Early in the film there is an extended exhibition of cunnilingus. This is soon followed by a scene of group sex between two women and a number of men showing explicit acts of intercourse, fellatio, cunnilingus and sodomy (see State v. Morrison, 25 N. J. Super. 534, 537, 542 (Cty. Ct. 1953). The young woman consults a buffoon psychiatrist who diagnoses her amazing deformity and prescribes fellatio to achieve an orgasm. The balance of the film deals with the young woman serving as the doctor’s assistant by engaging in sexual acts with him and his patients. Long detailed scenes of fellatio, cunnilingus and sodomy are repeatedly shown.

“Love for Sale” runs for half an hour. Three men spend the time in a house of prostitution with three prostitutes engaging in sexual intercourse, fellatio, cunnilingus and sodomy.

Dr. Ernest Yan Den Haag who qualified as a psychologist, a psychoanalyst and a sociologist testified as to both of the motion pictures: (1) their dominant theme taking them as a whole appealed to a prurient interest in sex; (2) they were patently offensive because they affronted contemporary community standards (nation-wide) relating to the representation of sexual matters, and (3) they were utterly without redeeming social value.

Defendants offered no testimony as to “Love for Sale”. An attempt was made to show that “Deep Throat” at least had redeeming social value. Testimony was given that the film takes sexual variations and techniques out of the closet and allows the viewers to see men and women enjoying what is done by the majority of people in private. A psychiatrist testified that exhibition of the film would allow people to engage in enjoyable sexual acts without shame and guilt and presumably thereby improve mental health. It is argued that the motion picture establishes the right of a woman to enjoy sex in her own way and that the picture is a spoof and humorous. Hone of these arguments impress the court in the least. Both motion pictures were exhibited to the court. Eull credence is given to the testimony of Dr. Yan Den Haag. Both of the films are no more than vehicles to portray the sexual acts shown. There is no social value in either of the films. Plaintiff has shown by a preponderance of the evidence that both of the films come within the three prong test of A Book, Etc. v. Attorney General of Com. of Mass., supra, 383 U. S. 413, 86 S. Ct. 975.

Both films are obscene under N. J. S. A. 2A: 115-1.1 as construed above. There will be a judgment lor injunctive relief against defendants preventing the further showing of the films. Defendants will be ordered to surrender all copies of the films to the Monmouth County Sheriff forthwith. The Sheriff shall seize the films, hold them for 45 days and then destroy them. If defendants file a notice of appeal, the court will entertain an application for a stay pending appeal of that portion of the judgment that orders destruction. Costs will be taxed for plaintiff.


author: Giujccxo, J. C. C.

text:
    STATE OF NEW JERSEY, PLAINTIFF, v. MICHAEL A. TIERNAN, AND JAMES W. BROWN, JR., DEFENDANTS.
    Cape May County Court
    Decided March 13, 1973.

      Mr. Edwin W. Bradway argued the cause for plaintiff-

      Mr. Kenneth E. Calloway argued the cause for defendants.
   Giujccxo, J. C. C.

This is an appeal from a Municipal Court proceeding finding appellant, Michael A. Tiernan, guilty of operating a vehicle while under the influence of drugs contra to N. J. 8. A. 39 :4^50.

The facts surrounding the conviction are thus: an officer for the City of North Wildwood observed defendant operating a vehicle on August 7, 197,2 at 2:40 in the morning. Defendant’s car was noticed “to force” another car off the road. Subsequent to the officer’s approaching and the defendant leaving the car towards the second vehicle, the defendant was unable to satisfy a request for a driver’s license: and registration, saying they were back in the car.

During the time on the police force, the police officer testified that he had seen “hundreds” of persons under the* influence of alcohol. In addition, the officer testified to his; having seen “a great number” of persons under the influence-of controlled dangerous substances. As preparation for this-aspect of police work, the officer indicated completion of' the mandatory academy training in narcotics as well as a-week long narcotics course at Sea Girt, New Jersey. The-officer was not a pharmacologist, nor a doctor, nor qualified to prescribe drugs. During this part of the officer’s testimony, a salient feature of the case was revealed; that there-is a pharmacologist on the Wildwood Police Department whose skills and training are employed in the detection of drug cases throughout Cape May County. No blood, urine or saliva analysis was made.

The officer proceeded to describe his observations of Mr. Tiernan’s physical condition. The defendant’s eyes were said to be glazed, he swayed and though his speech was lucid and conversant, it was described as slow. As a result, defendant was arrested for violating the laws of New Jersey proscribing the driving of a vehicle while under the influence of alcohol.

Upon arrival at police headquarters, a breathalyzer was administered the defendant. The readings indicated at best a negligible amount of blood alcohol. The defendant was then given a series of Romberg type tests to determine agility, and completed them satisfactorily though cumbersomely. Following the officer’s testimony as to the failure of defendant’s eyes to respond to light, defense counsel’s motion to strike the testimony as being without the province of the officer’s skill and knowledge, was denied.

The failure to discover sufficient blood alcohol resulted in a change of charges from driving while under the influence of alcohol to driving while under the influence of drugs. The failure to specif,y the substance producing the observed effects demonstrates the patent inability of the policeman to discern between an individual under the influence of a narcotic drug and one under the influence of aicohol. There was no report as to a medical examination. Upon the testimony of the officer that defendant must have been under the influence of something, the Municipal Court Judge determined that this something was drugs and found the defendant, Tiernan, in violation of N. J. 8. A. 39:4-50.

The court is confronted with two germane and interconnected inquiries. Did the State sustain its burden of proving beyond a reasonable doubt that the defendant was in fact under the influence of a narcotic drug as proscribed by the statute? Is a police officer qualified to testify as to one’s being under the influence of drugs with no further training than a one week’s course with no corroborating medical evidence ?

A prosecution under N. J. 8. A. 39 :4-50 has been deemed a quasi-criminal proceeding and as such “the State has the burden of establishing the guilt of the defendant beyond a reasonable doubt.” State v. Siegmeister, 106 N. J. Super. 577 (1969) citing State v. Ingram, 67 N. J. Super. 21 (App. Div.) (1961). The State in the case sub judice has clearly failed to meet this requirement.

An analysis of the statute and the case law development reveals an obvious distinction between the offenses of driving while under the influenec of alcohol and while driving under the influence of drugs although both proscriptions are contained in one statutory provision. N. J. S. A. 39 :4-50.1 is a legislatively created presumption of intoxication upon the results received from a duly administered breathalyzer test. State v. Magai, 96 N. J. Super. 109 (1967). This presumption pertains solely to alcohol. The legislature was obviously aware that the sobriety or lack thereof is determinable in common parlance by a number of factors; alcohol on the breath, physical instability and the like. The courts likewise have followed this direction in determining that lay opinion may be proffered as to whether an individual was intoxicated.

Lister v. England, 195 A. 2d 260 (D. C. App. 1963) noted the purpose of creating statutory presumptions of intoxication was to eliminate the necessity of having an expert witness testify. State v. Guerrido, 60 N. J. Super. 505 (1960) arrived at a similar conclusion by explaining that “although examination by a physician or tests to determine intoxication, or both, are usually given, there is ... no persuasive reason [why] a state of intoxication [under] ... 39: 4—50 cannot factually be established by lay evidence.” There is no skill or experience necessary in such a determination. See State v. Emery, 27 N. J. 348 (1958).

This area of lay opinion, as leading to an inference of intoxication, is carefully scrutinized by the judiciary in order to prevent an overextension, and an incursion into the realm of expert testimony. State v. Siegmeister, supra. Where testimony is in conflict as to one being under the influence and there were no tests administered by a physician who could testify using his special knowledge and training, a conviction for being under the influence could not be sustained. “In the case [where the testimony of] ordinary policemen [is relied upon], there should be some foundation laid in their testimony.” State v. Morton, 74 N. J. Super. 528, 537, aff’d 39 N. J. 512 (1963).

Although the court agrees that lay testimony is admissible as to intoxication, I find no reported decision holding that the presence of drugs and being under their influence is established by other than expert testimony. Furthermore, the brief training period undertaken by the officer is deemed to be insufficient to warrant his qualification as an expert.

Black’s law dictionary defines expert witnesses thusly, “men of science educated in the art or persons possessing special or peculiar knowledge acquired from practical experience . . . One possessing with reference to a particular subject, knowledge not acquired by ordinary persons.”

Likewise, the American Law Institute Model Code of Evidence states that a judge may prohibit lay testimony in the form of an opinion including inferences if “to draw such inferences requires a special knowledge, skill, experience or training ...” 2 Criminal Procedure Sourcebook PLI 613 (1942). Rule 402 of that code describes an expert as qualified “if the judge finds that to perceive, know or understand the matters concerning which the witness is to testify requires special knowledge, skill, experience or training” and the witness possesses such characteristics. Ibid, at 614.

New Jersey Rules of Evidence, Rule 56 pertains to the subjects of lay opinion testimony. In the annotated comment accompanying the rule, it is noted “a non-expert may give his opinion on matters of common knowledge and observation.” (emphasis added) Citing Searles v. Public Service R. Y. Co., 100 N. J. L. 222 (Sup. Ct. 1924) an early decision upholding a layman’s ability to determine intoxication. The comment further warns that “lay opinion testimony may not cross into the realm of expert testimony.” N. J. Rules of Evidence, Gann Law Books 1972 Edition, 227-228. See Nesta v. Meyer, 100 N. J. Super. 434 (App. Div. 1968); DiNizio v. Burzynski, 81 N. J. Super. 267 (App. Div. 1963).

In light of legislative dictates and judicial rule construction, this court must reach the conclusion that a police officer, absent training of a paramedical status, does not possess the expertise by which to determine the substance, if any, other than alcohol, which seems to have reacted on a defendant’s physical condition. The court is not impinging on the well recognized police power of the State “to regulate or to bar vehicle operation on the highways by narcotics users.” State v. Smith, 58 N. J. 202, 214 (1971) citing Robinson v. California, 370 U. S. 660, 82 S. Ct. 1417, 8 L. Ed. 2d 758 (1962). Rather the court seeks to implement the design of the Legislature.

N. J. S. A. 39 :4-50 speaks in terms of intoxicating liquors and narcotic, hallucinogenic and habit forming drugs. While any beverage possessing alcohol fits the former proscription, the latter is in need of specificity. Further, N. J. S. A. 39 :4—50.1 creates a statutory presumption of intoxication in accordance with various blood alcohol readings. There is no such presumption ci-pated for the use of drugs, nor is there a scientific test alluded to. Finally, the courts have determined that symptoms of inebriation are recognizable to the lay public, and in view of the lack of specificity in the statute, this is warranted. The court believes that in order to satisfy the delineated statutory proscription more than mere lay testimony as to one’s physical condition must be profferred. The presence of a miniscule amount of blood alcohol does not automatically lead to the inference of being under the influence of a narcotic drug. Indeed, the specificity of the statute regarding the narcotic nature of the drug precludes such an inference from ever arriving. There is, then, absent other evidence, the obvious need to have a determination reached by one possessing expertise. Were the decision otherwise, the preservation of the standard of guilt beyond a reasonable doubt would no longer be a viable tenet of criminal and quasi-criminal prosecutions.

In People v. Vignoli, 213 Cal. App. 2d 855, 29 Cal. Rptr. 260 (1963), the court upheld a conviction for operating a motor vehicle while under the influence of drugs following the testimony of a police officer that the defendant was extremely drowsy after his arrest for speeding and driving without a license and marks and scabs were found on defendant’s arms, one of which appeared recent. There was further testimony by an examining physician that he, too, had noticed needle marks, one of which, in his opinion was made within the last 6-10 hours. The doctor noted defendant’s eyes were constricted and on the assumption that there had been no drugs taken since the arrest, he concluded the defendant to have been under the influence of narcotic drugs at the time of the arrest. Great emphasis was placed on the credibility of the physician’s testimony; the officer’s testimony being viewed as corroboration. See also People v. Gurrola, 218 Cal. App. 2d 349, 32 Cal. Rptr. 368 (1963). People v. Davis, 270 Cal. App. 2d 197, 75 Cal. Rptr. 627 (1967) overturned a conviction for driving while under the influence of drugs when there was no expert opinion nor observation that defendant lacked alertness, judgment and coordination needed to operate a motor vehicle.

The case sub judies is devoid of the elements tending to verify a lay opinion. There were no discernible marks about the defendant’s arms or body, or other recognized indicia of drug use. There was no proof of deleterious effects on the ability to drive a vehicle. There was no' admission by the defendant of any narcotic drug consumption, nor were any drugs found that could be connected with this defendant. No doctor or pharmacologist or other medical, paramedical or scientific person was called in to examine the defendant. In fact, the officer admitted upon cross-examination that the charge of being under the influence of drugs was made only as the result of a failure to create a presumption of intoxication through a breathalyzer reading, and the defendant’s swaying when he walked. There is nothing in the record that convinces the court that any of the other contingencies which could have caused such a reaction were examined or considered.

The court is cognizant of the fact that the defendant was initially arrested for being under the influence of alcohol. While the charge was changed before trial, it is compelling to note that our sister jurisdiction, Pennsylvania, had prohibited a motorist, acquitted of being under the influence of alcohol, from later being tried for being under the influence of drugs on the same set of facts. Commonwealth v. Bishop, 182 Pa. Super. 151, 126 A. 2d 533 (1956). The Pennsylvania statute, 75 P. S. section 1037, reads similar to the New Jersey provision. The import of this decision demonstrates what results when the State has failed to seek the resources at its disposal. Were an examination before trial ordered, the State would have discovered that the defendant was under the influence of drugs. Likewise, in the case at bar, had the Wildwood Police Department pharmacologist been consulted, an examination of the defendant would have shown whether in an expert’s opinion there was influence of drugs, and not merely base a conviction on speculation.

Dispositive of this situation is State v. Siegmeister, supra. There a defendant driving erratically was stopped by the police. The officer testified that the defendant’s pupils were dilated, his speech slurred and he lacked coordination. There was no odor of alcohol. (In the ease before the court, it was described as “very slight”.) Defendant was examined by a physician that same evening, who concluded that the defendant was indeed under the influence of an intoxicating substance. There was, however, no indication as to specific substance.

The court in reversing the conviction for violation of N. J. S. A. 39:4-50 emphasized that the statute was “quite specific in its stipulation of the elements.” An intoxicating alcohol or a narcotic or habit forming drug must be proven. “There is a category of drugs which are neither narcotic nor habit forming.” Therefore, all drugs cannot be subsumed under the statutory language of N. J. S. A. 39 :4^50 . . . the Slate cannot merely show that a defendant is under the influence of some drug.” (emphasis added). Ibid. 106 N. J. Super, at 581. The court noted there, as this court does here, that N. J. S. A. 24:18-2 defines narcotic drugs while N. J. S. A. 2A ¡170-77.8 enumerates non-narcotic drugs. A finding must be made pursuant to the former provision before a conviction under N. J. S. A. 39:4-50 can be sustained. In the present situation, not only was there a failure to specify what drug, narcotic or otherwise, was present, there was reasonable doubt as to whether such presence existed.

The aforementioned reasons clearly warrant a reversal of the Municipal Court conviction. The court is emphatic in its opinion that mere lay testimony, standing alone, is insufficient to sustain a conviction for driving while under the influence of drugs. The specificity of the statutory language of N. J. S. A. 39:4-50 requires a different type of proof to establish the presence of narcotic drug. To hold otherwise would obviate the legislature’s intent in enumerating two classifications of drugs, one of which is not proscribed under N. J. S. A. 39 :4^50. To ensure the defendant the protection of basic legal rights, this court strenuously recommends that hereafter police departments use the experts, pharmacologists, physicians, et cetera at their disposal so as to prevent unjust consequences from ill prepared cases. Both the public interest and the defendant’s rights demand the careful and proper investigation and presentation of the State’s case.

The defendant is found not guilty.