author: Lewis, J. A. D.

text:
    VICTOR PORCELLI (AND NINE OTHERS), PLAINTIFFS-APPELLANTS, v. FRANKLYN TITUS, SUPERINTENDENT, AND THE NEWARK BOARD OF EDUCATION, DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued September 15, 1969
    Decided November 7, 1969.

      Before Judges Goldmaiot, Lewis and Matthews.

      Mr. Joseph F. Walsh argued the cause for appellants (Messrs. Bracken & Walsh, attorneys).

      Mr. Victor A. DeFilippo argued the cause for respondents.

      Mr. Arthur J. Sills, Attorney General of New Jersey, filed a statement in lieu of brief (Mrs. Virginia Long Annich, Deputy Attorney General, of counsel).
   The opinion of the court was delivered by

Lewis, J. A. D.

Plaintiffs, ten members of the teaching staff of the Newark Board of Education (herein Newark Board), appeal pursuant to R. R. 4:88-8 (now R. 2:2-3 (a)) from a final determination of the New Jersey State Board of Education (herein State Board). The latter affirmed a decision of the Commissioner of Education which held that the action of the Newark Board, in suspending its promotional procedure and its eligibility lists and in instituting a new policy for promotions, was a lawful exercise of discretionary authority.

Plaintiffs here urge that the Newark Board (1) is bound by the terms of an outstanding employment agreement with the Newark Teachers’ Association (herein NTA), the exclusive bargaining agent for all teachers in the Newark school district, and (2) may not lawfully disregard or modify by unilateral action the terms of that agreement.

The Teachers’ contract under review, dated June 19, 1967, covers the period from February 1, 1967 to February 1, 1970 and provides in pertinent part:

Article X PROMOTIONS
A. The, positions of principal, vice principal, * * * shall be filled in order of numerical ranking from the appropriate list, which ranking shall be determined by written and oral examinations. * * *
Article XXII GENERAL
E. The Board hereby amends its rules and regulations to the extent necessary to give effect to the provisions of this Agreement.
Article XXIV MUTUALITY OE OBLIGATION
The Board and the Association will make every good faith effort to carry out the spirit as well as the letter of this Agreement, subject to law. * * *

Subsequently, on June 30, 1967, Newark Board adopted an amendment to its Rules and Regulations, section 505.4 thereof, to conform to Article X of the agreement and to provide specifically that “all promotional lists shall expire after four years.”

On May 28, 1968, after a public hearing, the Newark Board passed a resolution suspending the making of any appointments to the positions of principal or vice-principal from promotional lists “pending an evaluation by the Board of Education of the present procedure for making such appointments, effective after October 1, 1968.” Thereafter no appointments for the positions of principal or vice-principal were made from promotional lists.

On August 22, 1968 defendant Franklyn Titus, Superintendent of Schools of the City of Newark (herein superintendent), proposed to the Newark Board that written examinations and numerical listings according to any test scorings be abolished and replaced by a general pool of qualified candidates selected by a screening committee, from which appointments would be made by the superintendent. The recommendations were adopted by the Newark Board on that date.

Prior to that August meetings the numerical ranking lists inclnded three plaintiffs for the position of principal and three plaintiffs for the position of Tice-principal. The remaining four plaintiffs had passed written examinations during the 1967-68 school year for the position of principal or vice-principal but because of the suspension resolution they had no opportunity to take the oral part of the examination. All plaintiffs, however, were placed in the general pool of qualified candidates but lost the advantage they had acquired by being on the eligibility lists.

At this juncture we note that plaintiffs also filed suit in the United States District Court, District of New Jersey, against defendants superintendent and the Newark Board alleging a violation of their civil rights under 42 U. S. C. A. § 1983 in that defendants, acting under color of law, abolished an established examinational procedure in order to appoint Negroes to positions for which they would not otherwise be eligible and made appointments to such positions solely on the basis of race, and that plaintiffs were thereby discriminated against solely because they are white. Damages and a mandatory permanent injunction against defendants were sought in that litigation. The court permitted the American Civil Liberties Union and The Law Center for Constitutional Eights to file an amicus brief, and, after a plenary hearing, a decision was rendered which was adverse to plaintiffs. Their complaint was dismissed with prejudice. Porcelli v. Titus, 302 F. Supp. 726 (D. N. J. 1969).

In the instant proceedings plaintiffs, in substance, demand a rescission of the challenged action of the Newark Board and an enforcement of the promotional system prescribed by the agreement of June 19, 1967. They argue on appeal, as they did before the State agencies, that the Newark Board, in changing its procedure for promotions, violated its own rules and regulations and unlawfully breached its negotiated contractual obligation with the NTA.

There can be no doubt, as plaintiffs contend in their brief, that the teachers in the Newark school system, as public employees, had the right to organize and, through organizational representation, the right to make proposals which could be effectuated by an enforceable agreement between the school board and its organized employees. N. J. Const. (1947), Art. I, “Eights and Privileges,” par. 19. This right was expressly recognized in the recently adopted “New Jersey Employer-Employee Eelations Act.” L. 1968, c. 303, N. J. S. A. 34:13A-1 et seq. The enactment mandates that negotiations concerning terms and conditions of employment shall be made in good faith and that when an agreement is reached such terms and conditions shall be embodied in a signed agreement. N. J. S. A. 34:13A-5.3. It also provides that “Nothing in this act shall be construed to annul or modify, or to preclude the renewal or continuation of an agreement heretofore entered into between any public employer and any employee organization, nor shall any provision hereof annul or modify any statute or statutes of this State.” N. J. S. A. 34:13A-8.1.

In view of those fundamental concepts and directives, it is urged that the instant employment contract must be binding and enforceable against all parties, including the public employer. Clifton v. Passaic County Board of Taxation, 28 N. J. 411 (1958), and Hackensack Bd. of Education v. Hackensack, 63 N. J. Super. 560 (App. Div. 1960), are cited for the proposition that “Our statutes cannot be so interpreted as to impute to the Legislature a vain or futile act.”

Thus, the critical issue before us is whether the Newark Board had the right to adopt unilaterally an educational policy relating to promotions which was inconsistent with the procedure contemplated by an agreement voluntarily entered into with its employees. We need not for purpose of this opinion consider the issue as to what extent a board of education may contractually bind its successor board or boards, since here the Commissioner found specifically that the contract in question was authorized by the Newark Board in 1967 and ratified by its 1968 and 1969 successor boards.

Defendants justify their action on the grounds of statutory authority and educational necessitj'. They refer to the constitutional requirement that the Legislature provide for a thorough and efficient system of free public schools, N. J. Const. (1947), Art. VIII, § IV, par. 1; the legislative implementation thereof delegating the operation of public schools to local boards of education, N. J. S. A. 18A:10-1; the broad discretionary powers vested in such boards with respect to the day-to-day functioning of the schools within their jurisdiction, N. J. S. A. 18A.T1-1; and the board’s authority enunciated under N. J. S. A. 18A :27-4:

Each board of education may make rules, not inconsistent with the provisions of this title, governing the employment, terms and tenure of employment, promotion and dismissal, and salaries and time and mode of payment thereof of teaching staff members for the distriet, and may from time to time change, amend or repeal the same, and the employment of any person in any such capacity and Ms rights and duties with respect to such employment shall be dependent upon and governed by the rules in force with reference thereto. [Emphasis added]

These statutory provisions and N. J. S. A. 34:13A-1 et seq., supra, are in pari materia, and it is axiomatic that such enactments are to be construed together “as a unitary and harmonious whole, in order that each may be fully effective.” Clifton v. Passaic County Board of Taxation, supra., 28 N. J., at 421. Accord, Brewer v. Porch, 53 N. J. 167, 174 (1969).

The argument of defendants then runs that the action of the Newark Board on May 28 and August 22 was in accord with its Bule 103.28 which reads: “Any rule of the Board may be suspended by a two-third vote of the entire Board * * Therefore, since plaintiffs are employed under board rules which, as provided by law, may be changed, amended or repealed from time to time, and their employment contract of June 19, 1967 sets forth in its terms that it would become part of the board’s rules and expressly provides that the agreement is “subject to law,” the decision to suspend and modify the promotional system was consonant with the statutory powers with which the Newark Board was vested.

In considering those contentions the Commissioner properly observed that:

* * * the law is not to be construed to imply that a board of education is not legally and morally bound to comply in good faith with the terms of any agreement consummated with its employees. Nor is a board permitted to enter into such an agreement with the implicit reservation that it can abrogate the terms thereof on any pretext. Such drastic, unilateral action can be sustained only in the face of a real threat or obstacle to the proper operation of the school system, or in an emergency of equal importance. [Emphasis added]

He found that the Newark Board deemed it essential to alter its method of selecting and appointing administrative and supervisory personnel for the reason that the educational needs and aspirations of the school children and the local community were being thwarted by the dearth of representation by Negro staff members in the leadership councils of the schools. Also, it was found that defendants endeavored, without success, to accomplish the desired result within the framework of the existing agreement; the dilemma that confronted the board was expressed in these words:

It could abide by its agreement and make no deviation of any kind in its rules and ignore public demand for change, or it could respond to what it conceived to be the needs of the school system and the desires of the community by modifying a part of its agreement against the wishes of a majority of the teachers’ association. Faced with such a Hobson’s choice the Board made its decision in terms of its overriding obligation to serve the needs of the children and the community.

It is significant that the challenged action of defendants eventuated after the period between July 13 and 17, 1967, when the City of Newark was violently shaken by widespread civil disorders. Judicial notice of those tragic incidents was taken in State v. Chandler, 98 N. J. Super. 241, 243 (Cty. Ct. 1967). But see A & B Auto Stores, Inc. v. Newark, 103 N. J. Super. 559 (Law Div. 1968). It is only reasonable to assume that the city and state school authorities were seriously concerned about the impact of such disturbances upon the students and their parents, the community at large, and the general administration of the school system throughout the city.

Superintendent Titus testified at the hearing before the Commissioner that the interest of sound educational policy, philosophy and procedure requires minority group representation on the administration policy-making level "of a school system such as Newark’s.” Indeed this thesis is not questioned by plaintiffs, nor do they suggest that the amended promotional procedure would not tend to achieve this objective. Furthermore, the witness in referring to his testimony in Porcelli v. Titus, supra, acknowledged that there was a “clamor” from the community and certain members of his staff with respect to the insufficiency of qualified black personnel in the administrative positions of the Newark schools.

In that federal proceeding it was stipulated that in September 1968 the school census was 75,876, with a Negro student population of 72.5%. It was also stipulated that of the 72 positions of principal in existence prior to August 22, 1968, none were held by Negroes, and with respect to the 64 vice-principal positions only three were held by Negroes.

Furthermore, the trial judge in that ease noted in his decision the comments of Mrs. Gladys Churchman, a member of the Newark Board of Education, who testified that “in order to appoint qualified Negroes, it was necessary to suspend the promotional lists.” The president and two other members of the board gave evidence to the same effect. The court also made reference to the testimony proffered by Dr. Donald Wesley Campbell, Director of Reference and Research for the Newark Board of Education, in support of the claim that an “educational crisis” existed in Newark. That factual assertion can be buttressed by recourse to public documents and writings dealing with recent urban problems. See, for example, Report for Action, Governor’s Select Oommission on Civil Disorder (February 1968), at 75 a general discussion of infirmities in the Newark school system, and at 170 — the conclusion that “The Newark Public School System is in a state of educational crisis.”

The Commissioner held that the subject agreement, “whatever it may be labeled,” could not constitute a surrender by the Newark Board of its responsibility under the law to conduct the schools under its charge “in the best interests of the children to be served.” Eor a clear expression of this overriding purpose of public schools, he referred to Bates v. Board of Education, 139 Cal. 145, 148, 72 P. 907, 908 (Sup. Ct. 1903), and the following statement repeated in McGrath v. Burkhard, 131 Cal. App. 2d 367, 377, 280 P. 2d 864, 871 (D. Ct. App. 1955) : “The public schools were not created, nor are they supported, for the benefit of the teachers therein, * * * but for the benefit of the pupils, and the resulting benefit to their parents and the community at large.”

We endorse the principle, as did the court in Kemp v. Beasley, 389 F. 2d 178, 189 (8 Cir. 1968), that “faculty selection must remain for the broad and sensitive expertise of the School Board and its officials,” and this we do notwithstanding an existing employment agreement where subsequent conditions make impossible a literal performance of all of its terms. The essence of the modern defense of impossibility is that the promised performance was at the making of the contract, or thereafter became, impracticable owing to some extreme or unreasonable difficulty or the like “rather than that it is scientifically or actually impossible.” 6 Williston, Contracts (rev. ed. 1938), § 1931, p. 5410. Cf. 6 Corbin, Contracts, § 1336, p. 384 (1962).

As approvingly noted in Newark v. North Jersey Dist. Water Sup. Comm., 106 N. J. Super. 88, 106 (Ch. Div. 1968), affirmed o.b. 54 N. J. 258 (1969), “A thing is impossible in legal contemplation when it is not practicable; and a thing is impracticable when it can only be done at an excessive or unreasonable cost” (quoted from 1 Beach, Contracts, § 216, p. 269 (1896)). A fortiori, the concept of impossibility should prevail where a particular provision in a school contract is rendered impracticable by subsequent events demanding changes in an educational program in order to give meaningful effect to an overriding public policy. Moreover, it is well settled that specific performance will not be decreed if the performance to be compelled is contrary to public welfare. Restatement, Contracts, § 369, p. 671 (1932).

This court has recognized that a contract is to be considered “subject to the implied condition that the parties shall be excused in case, before breach, the state of things constituting the fundamental basis of the contract ceases to exist without default of either of the parties.” Edwards v. Leopoldi, 20 N. J. Super. 43, 54 (App. Div.), certif. den. 10 N. J. 347 (1952). Stated differently, “There is no more intrinsic sanctity in stipulations by contract than in other solemn acts of parties which are constantly interfered with by Courts of Equity upon the broad ground of public policy or the pure principles of natural justice.” 2 Story, Equity Jurisprudence (13th ed. 1886), § 1316, p. 648. These legal principles are nonetheless applicable in situations involving a collective bargaining agreement, despite “suggestions that such contracts might, in some respects, well be considered sui generis.” Adams v. Jersey Central Power & Light Co., 36 N. J. Super. 53, 70 (Law Div. 1955). See Kennedy v. Westinghouse Electric Corp., 16 N. J. 280, 284-287 (1954).

Implicit in the agency’s decision here under review are findings that the Newark Board was in fact faced with “a real threat or obstacle” to the proper administration of its school system. The record before us, and the attendant public events that may be judicially noticed, support the findings of the Commissioner that the ex parte adoption of new promotional rules by the Newark Board, notwithstanding lack of approval by a majority of the NTA, was "warranted and appropriate.”

The determination of the State Board that the Newark Board acted lawfully, in the particular circumstances of this case, is affirmed.

       The Superintendent recommends the approval of the plan listed below for appointment to promotional positions.
      The objective of this plan is to have one standard of selection.
      The existing procedure of written and oral examinations for promotional positions shall be abolished. A pool of candidates for promotional positions shall be established. The procedure for placement in the pool is described below. The Superintendent would make appointments to promotional positions from candidates in the pool.

        Procedure for Establishing a Pool of Candidates for Promotional Positions

      1. Candidates shall submit a formal application.
      2. Candidates in order to be eligible for inclusion in the pool shall meet training, experience, and State certification requirements as established for each promotional position. These requirements must be met prior to interview by the screening committee.
      The following are minimum experience requirements:
      a. For Principals:
      Five years of successful contractual teaching experience in the Newark Public Schools, or ten years of successful contractual teaching experience in schools outside of Newark, three years of which shall have been on a recognized administrative level.
      b. For Vice Principals, Department Chairmen, and Junior High School Supervisory Assistants:
      Three years of successful contractual teaching experience in the Newark Public Schools (with the attainment of tenure).
      3. Candidates for the pool shall not be restricted to members of the Newark Public School staff.
      4. Candidates shall he screened by a committee composed of:
      a. Assistant Superintendent in charge of Personnel or a Director on Ms staff.
      b. Assistant Superintendent from the appropriate school level.
      e. A Newark school administrator from the appropriate level.
      d. An educator from outside the Newark school system.
      e. A Newark school teacher from the appropriate school area. No teacher shall serve on a screening committee who is a candidate for promotional position.
      5. The screening committee shall recommend to the Superintendent those candidates judged to be worthy candidates for promotion. These successful candidates shall constitute the pool from which promotions shall be made.
      6. The criteria for use by the screening committee shall be cooperatively developed by representatives of the NTA and the Superintendent’s staff.
      7. New candidates shall be selected for the pool once each year in March.
      8. The pools shall he in existence for a period of five- years from the date of their establishment. At that time this entire procedure will be subject to reevaluation.
      9. As a result of negotiations with ilie NTA, it is recommended that all individuals who were on unexpired promotional lists, upon their request, be automatically placed in the pool for the appropriate area without prejudice. It is further agreed that all such individuals will be sent notices to this effect by the Department of Personnel.
      10. As a result of negotiations with the NTA, all individuals who applied and paid the required fees for participation in the examinations which have been suspended by the Board of Education shall automatically be considered as having applied for inclusion in the pool. It is further agreed that all such individuals will be sent notices to this effect by the Department of Personnel. It is also recommended that all such fees for the suspended promotional examinations be returned.
      NOTE: The Negotiations Committee of the Newark Teachers Association have agreed to the above and will recommend this procedure to the NTA Senate at their next meeting. [The membership of NTA did not ratify the proposal of its negotiating team.]

       Paragraphs 4 and 5 of the stipulation read as follows:
      4. The school population in the City of Newark in October 1901 was 67,134, and had a Negro population of 55.1%. In September 1968 the total school population was 75,876, with a Negro student population of 72.5%, reflecting an increase in seven years of 8,742 students and a percentage increase of negro [.sic] students of 17.4%.
      5. For the school year 3967-1968 there were 259 administrative and supervisory positions (Superintendents and Assistants, directors of departments, Supervisors; Senior High, Junior High, Elementary, Special Schools; principals and vice-principals, department chairmen; supervisory assistants and teachers to assist principals), of which 27, or 10% were held by negroes [*ie].

       See also Report of The National Advisory Commission on Civil Disorders 236, 242 (March 1, 1968) ; Supplemental Studies for The National Advisory Commission on Civil Disorders 133 (July 3,968) ; Farnsworth, “The City in the Recent Past,” 1 Rutgers-Camden L. J. 1, 11 (1969) ; cf. Fiss, “Racial Imbalance in the Public Schools: The Constitutional Concepts,” 78 Harv. L. Rev. 564, 617 (1965).


source: Caselaw Access Project

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

license: Public Domain

text:
    IN THE MATTER OF THE APPLICATION OF HOWARD SMITH, PETITIONER, TO THE BOARD OF TRUSTEES OF THE POLICE AND FIREMEN'S RETIREMENT SYSTEM FOR ACCIDENTAL DISABILITY RETIREMENT.
    Superior Court of New Jersey Appellate Division
    Argued October 27, 1969
    Decided January 26, 1970.

      Before Judges Kilkenny, Labbecque and Leonabd.

      Mr. Ralph A. Yacavino argued the cause for appellant (Mr. Frank A. Palmieri, attorney).

      Mr. Franklin D. Renkof argued the cause for respondent (Mr. Arthur J. 8ills, Attorney General of New Jersey, attorney).
   The opinion of the court was delivered by

Kilkenny, P. J. A. D.

Petitioner Howard Smith (hereinafter Smith) appeals from a final decision of the Board of Trustees of the Police and Firemen’s Retirement System of New Jersey (hereinafter board) awarding him accidental disability pension benefits, effective at the expiration of the workmen’s compensation benefits Smith had been receiving. Smith contends that the effective date fixed by the board for receiving pension benefits was erroneous. He argues for an earlier effective date — one or the other of three alternatives hereinafter noted.

A brief recital of the facts and pertinent statutes is necessary to put the issue in proper focus.

Smith commenced employment with the Town of West Orange as a fireman on March 15, 1950. He thereby became a member of the Eetirement System and entitled to the benefits thereunder. N. J. S. A. 43:16A-1 et seq.

On August 26, 1964, while in the course of his employment as a fireman, Smith slipped and fell, injuring his left knee and ankle. Although the circumstances were not dramatic •—■ he slipped on the firehouse floor •—• the consequences were serious. He never worked as a fireman thereafter. He was absent from work on sick leave from August 27 to November 20, 1964, when he applied for accidental disability retirement, requesting retirement as of January 15, 1965. His full salary was continued by his employer until September 30, 1965. On February 19, 1965 the board denied his application for retirement under N. J. S. A. 43:16A—7 for failure to present sufficient evidence of disability.

On March 29, 1965 Smith filed a petition for workmen’s compensation benefits. On November 20, 1966 the Division of Workmen’s Compensation made an award in his favor, allowing him 65% loss of the use of his left leg •—■ 14—6/7 weeks temporary at $45 a week, amounting to $668.57, and 178-3/4 weeks of compensation at $40 a week, amounting to $7150 for permanent disability. This award was subsequently affirmed by the appellate courts.

On November 14, 1967 a hearing was held in the Division of Pensions, based on Smith’s appeal from the board’s decision denying his application for disability retirement. The hearing officer on March 26, 1968 recommended to the board that its original decision be reversed and the application for disability retirement approved. On May 28, 1968 the board granted Smith accidental disability retirement, effective June 1, 1968. The retirement date was subsequently modified to May 1, 1968, the date upon which Smith’s workmen’s compensation payments terminated.

Smith objected to the effective date designated by the board, contending, alternately, that the effective date of retirement should be December 8, 1964 (the termination of 14-6/7 weeks of temporary disability), January 15, 1965 (the date requested in his retirement application), or October 1, 1965 (payment of his full salary having been terminated on September 30, 1965 by his employer). Refusal of the board to change the effective date of Smith’s retirement, or to accede to any one of his suggested alternatives, has prompted this appeal by him.

Smith notes the fact that on December 18, 1967 L. 1967, c. 250 became effective. Section 30(b) thereof, N. J. S. A. 43:16A-15.2(b), provides:

No application for retirement benefits may be approved by the board of trustees while the member, applying for such benefits, is in receipt of periodic benefits under the Workmen’s Compensation Law.

The 1967 amendments and supplements to L. 1944, c. 255, in their 32 sections, made many changes in the 1944 statute. However, Smith maintains that L. 1967, c. 250, § 30 is only prospective in application and not retroactive- so as to affect his retirement date.

Dollarwise, Smith points out that his annual retirement payment was fixed at $5077.20, which amounts to $97.65 a week. By the board’s applying L. 1967, c. 250, § 30 retroactively and disallowing pension benefits while Smith was receiving periodic workmen’s compensation payments, Smith argues that he has been pecuniarily aggrieved because the compensation payments are less than the pension benefits. Accordingly, he strives on this appeal to relate the effective date of his retirement to an earlier time in order to obtain the greater sums payable as pension benefits.

It seems axiomatic that a public employee may not receive his full salary as an employee and, at the same time, receive a retirement disability pension. Smith was paid his full salary by the Town of West Orange, his employer, following his accident until September 30, 1965. His status as a fully paid employee precludes a claim to a pension at the same time. Therefore, Smith has no valid basis for pension benefits prior to October 1, 1965. To hold otherwise would create the anomaly of paying salary to one as an employee while recognizing at the same time that he was not an employee, having retired from his employment.

The closer issue is whether Smith was entitled to collect pension benefits at the same time he was receiving periodic workmen’s compensation payments subsequent to October 1, 1965. Pie did receive compensation payments until May 1, 1968. For that reason the board fixed May 1, 1968 as the effective date of retirement, the time for the commencement of the payment of pension benefits.

The problem is generated by the fact that the board did not approve Smith’s application for retirement benefits by reason of accidental disability suffered in the course of his employment until May 28, 1968. At that time L. 1967, c. 250, § 30(b) was in effect and had been in effect since December 18, 1967. As noted above, the board was not permitted under the 1967 act to approve an application for retirement benefits while the member, applying for such benefits, was in receipt of periodic benefits under the Workmen’s Compensation Law. But Smith had received his last workmen’s compensation payment on May 1, 1968, so that on May 28, 1968 he was no longer receiving workmen’s compensation periodic payments. Therefore, approval of his application for retirement benefits was not precluded on May 28, 1968 by reason of L. 1967, c. 250, § 30(b). There is no dispute as to his right to pension benefits from May 1, 1968.

Is he entitled to pension benefits during the time he was receiving periodic workmen’s compensation, i. e., during the period between October 1, 1965, after which he no longer was paid his salary, and May 1, 1968, after which he no longer received workmen’s compensation payments but received pension benefits under the board’s decision ?

The right to receive both workmen’s compensation payments and pension benefits at the same time had been the subject of much litigation prior to the 1967 statute. The earlier cases held that one could not have the benefits of both statutes — workmen’s compensation and pension. The rationale was that “the relationship of an employer and an employee is not consistent with the position of a pensioner as such, for the reason that a pensioner severs all relationship of employer and employee.” DeLorenzo v. Newark, 134 N. J. L. 7, 9 (E. & A. 1946). See also, Breheny v. Essex County, 136 N. J. L. 524 (E. & A. 1947), and Judson v. Newark Board of Works Pension Assn, 132 N. J. L. 106, 108 (Sup. Ct. 1944).

Later decisions upheld the right of injured persons or their familial survivors to recover both workmen’s compensation and pension benefits. Thus, in Eckert v. New Jersey State Highway Department, 1 N. J. 474 (1949), our Supreme Court stated:

* * * There is no legislative authority expressly permitting payment of both pension and compensation benefits but on the other hand there is no legislative prohibition against such payments and there appears to be legislative sanction therefor, if not explicitly, at least inferentially. (at 478)

Eckert also noted that the allowance of workmen’s compensation as well as pensions was not against public policy, it being the sole prerogative of the Legislature to declare the public policy.

So, too, in Pisapia v. Newark, 47 N. J. Super. 353, 363-365 (Cty. Ct. 1957), it was affirmed, in reliance upon Eckert, that there was no public policy against a municipal employee’s receiving both workmen’s compensation and pension payable upon retirement. Pisapia was decided on October 31, 1967, prior to the December 18, 1967 effective date of L. 1967, c. 250, in whose § 30(b) the Legislature has declared a new public policy, precluding approval of a retirement application while the applicant is receiving periodic payments under the Workmen’s Compensation Law.

The board argues that the 1967 statute, by § 30(b), merely codified preexisting law. We do not agree. Eckert and Pisapia, unlike the earlier cases, allowed recovery of both workmen’s compensation and a pension.

Moreover, it would be inequitable to apply the 1967 statute retroactively to Smith’s case. He had suffered his accidental disability and had made application for a retirement pension by reason thereof long before the effective date of the 1967 statute. The board originally denied his application for a pension and by its subsequent action recognized that it had done so erroneously, by its reversal of the earlier action. If it had correctly decided the application in 1965, the 1967 statute would have not yet existed and the judicial determinations in Eckert and Pisapia would have justified the granting of an accidental disability retirement pension. Smith should not be penalized for the administrative delays which made the board’s final decision subsequent to the intervening 1967 statute.

We note, finalljr, that we are not concerned herein with a claimant’s right to workmen’s compensation when, as a public employee, he has been awarded an accident disability retirement pension by reason of the same employment and disabling injuries. Cf. N. J. S. A. 34:15-43; Swan v. Board of Trustees, Teachers’ Pension Fund, 85 N. J. Super. 226 (App. Div. 1964), and Ziegler v. State, 95 N. J. Super. 273 (App. Div. 1967). The issue is the right to disability retirement pension, notwithstanding the receipt of workmen’s compensation. In Swan we upheld the right to the pension, holding also that the Pension Eund could not deduct from the pension the workmen’s compensation award for permanent disability. Incidentally, in that case the disabled teacher had, out of a third-party settlement, reimbursed the local board of education for the workmen’s compensation received by her.

The final decision under review is modified to make the effective date of Smith’s retirement for pension benefit purposes October 1, 1965, rather than May 1, 1968.


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

text:
    STATE OF NEW JERSEY, PLAINTIFF-APPELLANT, v. RONALD E. EMMETT, DEFENDANT-RESPONDENT.
    Superior Court, of New Jersey Appellate Division
    Argued January 19, 1970
    Decided January 26, 1970.

      Before Judges Goldmahn, Lewis and Matthews.

      Mr. Remo M. Croce, Deputy Attorney General, argued the cause for appellant (Mr. Arthur J. Sills, Attorney General of New Jersey, attorney; Mr. Stephen Slcillman, Assistant Attorney General, of counsel).

      Mr. Francis E. Gazdzinslci argued the cause for respondent.
   The opinion of the court was delivered by

Goldmann, P. J. A. D.

The State appeals from a County Court judgment of acquittal finding defendant not guilty and reversing his conviction in the municipal court for violating N. J. S. A. 39:4-50(b) (operating a motor vehicle while ability to operate is impaired by the consumption of alcohol), remitting the $50 fine and costs imposed in the municipal court, and restoring his driving privileges which had been suspended for a period of six months. The State also appeals from the County Court’s denial of its motion to vacate the judgment of acquittal and to restore the matter to the trial list.

Defendant had been convicted in the Wrightstown Municipal Court for violating N. J. S. A. 39:4-50(b) and, pursuant to R. R. 3:10-1 <et seq. (now R. 3:23-1 et seq.), appealed to the Burlington County Court. At the hearing de novo and shortly after direct examination of the State’s first witness, a police officer, had begun, the trial judge noted that he did not have before him the complaint or judgment of conviction that had been filed in the municipal court. A recess was taken in an attempt to locate the complaint and judgment, which should have been forwarded to the county clerk by the municipal court clerk as provided by R. R. 3:10-4 (now R. 3:23-4(a)). The attempt proved unsuccessful and, after extended colloquy between the trial judge and counsel, the defense attorney’s motion for judgment of acquittal was granted. The State’s subsequent motion to vacate the judgment and to restore the matter to the trial calendar was denied after argument.

The trial judge acknowledged that neither of the parties was to blame for the municipal court clerk’s failure to send up the record. He appears to have been of the view that to continue the matter until the municipal court record could be obtained would prejudice defendant, since he was in court and ready for trial — this in face of the fact that both parties were ready to proceed and that by virtue of the notice of appeal which was before the court the trial judge could not help but he aware of the nature of the complaint and conviction. ^Nothing in B. B. 3 :10—1 et seq. makes compliance with B. R. 3:10-4 a jurisdictional requirement. Although no postponement was necessary, the judge could readily have continued the matter for a week or so in order that the municipal court record might be forwarded.

Defense counsel's motion for acquittal was undoubtedly inspired by what the trial judge had said in the course of the colloquy. The deputy attorney general had suggested that his office or the municipality be given an opportunity to submit the necessary documentation, stating, “Our office is not in a position to know what papers are submitted. We never are aware of what papers are submitted.” In granting defendant's motion, the trial judge seemed to be of the opinion that calendar control required an on-the-spot disposition of the pending proceedings. He stated that the whole purpose of the rules is that municipal court appeals move expeditiously. In our view, the judgment was unwarranted in the circumstances; calendar problems cannot excuse such precipitant action.

The rules are to be construed to secure simplicity in procedure, fairness in administration and the elimination of unjustifiable expense and delay. They are a means to justice, and not an end in themselves; their purpose is to provide for a just determination of every proceeding. See B. R. 1:27A and R. B. 3 :l-2, now part of B. 1 :l-2. And see Ilandelman v. Handelman, 17 N. J. 1, 10-11 (1954), ■where the court said that our rules of procedure were not designed to create an injustice and added complications, but “to broaden the procedural powders of our courts to the end that just dispositions on the merits may be facilitated and determinations on the basis of procedural niceties may be avoided.”

Fundamental fairness dictated that neither of the parties be made to suffer, or justice be thwarted, by the failure of the municipal court clerk to send up the complaint and judgment of conviction. Eor the County Court to have found defendant not guilty, reversed his conviction, remitted his fine and costs and restored his suspended driving privileges, amounted to a perversion of justice.

Defendant argues that he would be placed in double jeopardy if this court were to order a retrial. We note, again, that the trial had barely begun when the court interposed the fact that the complaint and judgment of conviction were lacking. The police officer had testified to no more than his employment, his experience with drunken driving cases and the time and place he was observing traffic. With nothing more in the record than this, the trial judge entered a judgment which recited that the court had “considered the evidence and the testimony” and therefore found defendant not guilty and reversed the conviction.

As was said in State v. Farmer, 48 N. J. 145 (1966), which dealt with a County Court declaration of a mistrial on its own motion,

* * * the double jeopardy protection does not mean that once an accused has been put on trial regularly, the proceeding' must run its ordinary course to judgment o£ conviction or acquittal. The rule does not operate so mechanistically. If some unexpected, untoward and undesigned incident or circumstance arises which does not bespeak bad faith, inexcusable negligent or inadvertence or oppressive conduct on the part of the State, but which in the considered judgment oí the trial court creates an urgent need to discontinue the trial in order to safeguard the defendant against real or apparent prejudice stemming therefrom, the Federal and State Constitutions do not stand in the way of declaration of a mistrial. And this is true even if the conscientious act of the trial judge majr be characterized as the product of “extreme solicitude” or “overeager solicitude” for the accused. See, Gori v. United States, supra, 367 U. S., at p. 367, 81 S. Ct., at p. 1525. Moreover, if an incident or circumstance of that nature moves the court to order a mistrial not only to safeguard the right of the defendant to a full and fair trial, but also to protect the right of society to have its trial processes applied fully and fairly in the due administration of the criminal law, there is even less basis for a claim of trespass upon the privilege against double jeopardy. See, A. L. I. Proposed Official Draft, Model Penal Code (1962) § 1.08. Clearly the societal right to have the accused tried and punished if found guilty stands side by side with the right of the accused to bo prosecuted fairly and not oppressively. AVhile the public right, when it must be considered alone, may not weigh as heavily in the scale as that of the defendant because of the constitutional dimensions of the privilege against double jeopardy and the superior capacity of the State to investigate and prepare for prosecutions, nevertheless when exercise of the trial court’s discretion may fairly be said to serve both interests, there is certainly less substantial reason to question its propriety.
There can be no doubt that the primary motive for the mistrial here was a sincere effort on the court’s part to protect and assist Farmer. * * *

The same rationale should underline our determination in this case. At the least, the trial judge should have declared a mistrial or granted an adjournment. What he did exceeded his judicial power.

Eeversed and remanded for a full trial de novo in the County Court.


author: Kolovsky, J. A. D.

text:
    SYLVIA GREEN, PLAINTIFF-RESPONDENT, v. WILBERT C. SOMERVILLE, SR., GENERAL ADMINISTRATOR OF THE ESTATE OF WILBERT C. SOMERVILLE, JR., DECEASED, DEFENDANT, AND UNSATISFIED CLAIM AND JUDGMENT FUND BOARD, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued January 12, 1970
    Decided January 28, 1970.

      Before Judges Coneord, Collester and Kolovsky.

      Mr. James J. Gasby, Jr. argued the cause for appellant.

      Mr. Martin A. Herman argued the cause for respondent.
   The opinion of the court was delivered by

Kolovsky, J. A. D.

The Unsatisfied Claim and Judgment Eund Board (Eund) appeals from an order entered under N. J. S. A. 39 :6-71 directing payment out of its funds of the judgment of $8250 recovered in an automobile negligence action by plaintiff against defendant adminstrator of the estate of Wilbert C. Somerville, Jr. (Wilbert), deceased.

The sole issue presented is whether the court was correct in ruling that plaintiff had established, as N. J. S. A. 39:6-70(f) requires, that Wilbert “at the time of the accident was not insured under a policy of automobile liability insurance under the terms of which the insurer is liable to pay in whole or in part the amount of the judgment.”

The controlling facts are conceded. On June 4, 1965 Wilbert did not own an automobile. His driver’s license had theretofore been revoked or suspended, and for him to regain it it was necessary that he file proof of financial responsibility pursuant to N. J. S. A. 39 :6-31 and N. J. S. A. 39 :6-46 with the Director of the Division of Motor Vehicles. The latter section provides in pertinent part:

A motor vehicle! liability policy furnished as proof of financial responsibility as provided herein shall be a policy of liability insurance issued * * to the person therein named as insured, * * *. The policy shall:
(a) Designate, by explicit description or appropriate reference, all motor vehicles with respect to which coverage is intended to be granted thereby, and insure the insured named therein and any other person using or responsible for the use of any such motor vehicle with the express or implied consent of the insured, against loss from the liability imposed upon ihe insured or other person by law, for injury to or the death of a person, *’ * * growing out of the maintenance, use or operation of the motor vehicle in the United States of America; or
(b) Vn the alternative, insure the person therein named as insured against loss from the liability imposed by law upon the insured for injury to or death of a person, * * * growing out of the operation or use by the insured of a motor vehicle, except a motor vehicle registered in the name of the insured, and occurring while the insured is personally in control, as driver or occupant, of the motor vehicle within the United States of America. [Emphasis added]

The policy filed by Wilbert with the Director as proof of financial responsibility was a “non-owner” policy, the alternative referred to in paragraph (b) of the quoted section. The policy, naming Wilbert as the insured, was issued for a term of one year from June 4, 1965 by Hardware Mutual Casualty Company (Hardware), to which the risk had been assigned under the “assigned risk plan.”

Insofar as pertinent, the policy, on an endorsement page headed “Non-owner policy,” provided:

It is agreed that such insurance as is afforded by the policy for bodily injury liability, for property damage liability and for automobile medical payments applies with respect to the use of any automobile by or on behalf of the named insured or his spouse if a resident of the same household, subject to the following provisions:
1. With respect to the insurance for bodily injury liability and for property damage liability the unqualified word ‘insured’ includes (A) such named insured and spouse, * * *.
2. The insurance does not apply:
(A) As respects the named insured, to any automobile owned by the named insured and as respects the spouse of the named insured, to any automobile owned [by] the named insured, * * *.

On November 2, 1965 Wilbert purchased and registered a Plymouth automobile, but he neither procured a new policy describing that automobile nor applied for an endorsement on the existing “non-owner” policy. On February 19, 1966, while driving the Plymouth, Wilbert was involved in the collision which injured plaintiff and led to the recovery of the judgment here involved.

The Fund concedes that by the express language of Hardware’s policy it is not an insurance policy “under the terms of which the insurer is liable to pay in whole or in part the amount of the judgment” (N. J. S. A. 39:6-70 (f)). The Fund, however, argues, relying primarily on Selected Risks Insurance Co. v. Zullo, 48 N. J. 362 (1966); Willis v. Security Insurance Group, 53 N. J. 260 (1969), affirming 104 N. J. Super. 410 (Ch. Div. 1968), and State Farm Mut. Auto. Ins. Co. v. Wall, 92 N. J. Super. 92 (App. Div. 1966), that “the ffion-owner’ endorsement was invalid” or at least became invalid when Wilbert purchased and registered the Plymouth automobile.

The contention is substantially similar to the argument rejected by this court in American Cas. Co. v. Cioffi, 49 N. J. Super. 6 (App. Div. 1958). The Fund urges, however, that in view of the later decisions in Zullo, Wall and Willis, Cioffi should be overruled.

We find no merit in the Fund’s argument.

The reliance on Zullo, Wall and Willis is misplaced. Wall is irrelevant to the issue here presented. Zullo and Willis involved “owner’s policies” presented by the owners “to the Director of Motor Vehicles in order to obtain the advantage of registering an insured motor vehicle” and, as the court held in Zullo:

A policy so offered must have the broad form omnibus coverage set forth in N. J. S. A. 39:6-46(<i). A policy which purports to have a more restrictive omnibus coverage is automatically amended to conform to the statutory standard, [at 373; emphasis added]

That holding has no effect on a “non-owner” policy, snch as is here involved, issued pursuant to the alternative granted by, and conforming as detailed above in all respects to the controlling statute, N. J. S. A. 39:6-46(b).

The order directing payment by the Fund is affirmed.


text:
    AMERCOAT CORPORATION, PLAINTIFF, v. REAGENT CHEMICAL & RESEARCH, INC., DEFENDANT AND THIRD-PARTY PLAINTIFF-RESPONDENT, v. KANSAS CITY SOUTHERN RAILWAY COMPANY AND ATCHISON, TOPEKA AND SANTE FE RAILWAY COMPANY, THIRD-PARTY DEFENDANTS-APPELLANTS.
    Superior Court of New Jersey Appellate Division
    Argued September 29, 1969
    Decided January 29, 1970.

      Before Judges Goldman», Lewis and Matthews.

      Mr. Benjamin P. Michel argued the cause for appellant Kansas City Southern Railway Company (Messrs. Biker, Danzig, Scherer é Brown, attorneys).

      Mr. Frederick F. B. Gruen argued the cause for appellant Atchison, Topeka and Santa Ee Railway Company (Messrs. Bum, Biunno Tompkins, attorneys).

      Mr. David I. Fox argued the cause for respondent (Messrs. Fox. Yanoff and Fox, attorneys).
   The opinion of the court was delivered by

Goldmann, P. J. A. D.

Third-party defendants Kansas City Southern Railway Company (Kansas City) and Atchison, Topeka and Santa Ee Railway Company (Santa Ee) have, pursuant to leave granted, each appealed from a denial of their motions to dismiss a third-party complaint brought by defendant Reagent Chemical & Research, Inc. (Reagent), or to quash service of process. The appeals were consolidated.

Plaintiff Amereoat Corporation (Amereoat), a California corporation registered to do business in New Jersey, is a manufacturer of chemical storage tanks. Defendant Reagent, a New Jersey corporation having its principal place of business at Middlesex, N. J., stores and sells chemicals. Amercoat instituted an action against Eeagent in the Law Division on a book account to recover $6,418.90, the purchase price of two chemical storage tanks sold and delivered. The sales contract called for delivery of the tanks from Amercoat’s plant in Ardmore, Oklahoma, to Eeagent’s operation at Port Arthur, Texas.

Eeagent’s answer denied the debt and asserted a breach of contract in that the tanks were damaged and unfit for use when delivered. By way of counterclaim Eeagent claimed damages directly resulting from plaintiff’s breach because it had been obliged to purchase replacement tanks at higher prices and to transport chemicals from a distance at great expense during the period when no tanks were available to replace those plaintiff had agreed to sell and deliver.

Eeagent also filed a third-party complaint in two counts against Kansas City and Santa Pe, over whose lines the tanks had been shipped by Amercoat, the theory being that if delivery to Eeagent was completed upon Amercoat’s depositing the tanks with the railroad at Ardmore, Oklahoma, one or both carriers would be liable to Eeagent for the losses incurred through their breach of the carriage contract and for negligence. The first count demanded judgment for all sums that might be adjudged against Eeagent in favor of Amercoat; the second count sought recovery from the third-party defendants should it be determined that Amercoat was not liable for damages under Eeagent’s counterclaim.

Kansas City is a Missouri corporation having its principal place of business in Kansas City, Mo., and operates directly in Missouri, Kansas, Arkansas, Louisiana, Oklahoma and Texas. Santa Pe is a Kansas corporation having its principal place of business in Chicago, 111., and operates directly in Illinois, Missouri, Kansas, Oklahoma, Louisiana, California, New Mexico and Kentucky. Defendant Eeagent attempted service of process on the carriers in two ways: (1) by serving the registered agent of Penn-Central Company in New Jersey as agent for the third-party defendants, and (2) by pending copies of the summons and third-party complaint by registered mail to Kansas City at its Missouri office and to Santa Pe at Ardmore, Oída. — this pursuant to R. R. 4:4-4(d), now R. 4:4r-4(e) (1).

Kansas City and Santa Pe successfully challenged the attempted service on Penn-Central Company, defendant Reagent conceding that there was no basis for such service. However, they were unsuccessful in quashing the substituted service of process made under the cited rule. They had moved to dismiss the third-party complaint or to quash the service for the reason that they lacked sufficient “minimum contacts” with New Jersey and for the further reason that the doctrine of forum non conveniens militated against Reagent maintaining its suit in New Jersey.

On this appeal the third-party defendants claim error in that (1) the assertion of jurisdiction over them would violate due process of law and constitute an unreasonable burden on interstate commerce, and (2) regardless of the resolution of the jurisdictional issue, the third-party suit should have been dismissed on the basis of forum non conveniens.

I

R. R. 4:4-4(d), now part of R. 4:4-4(c) (1), authorized substituted service of process on a foreign corporation, where service could not be made upon it in any of the other ways listed in that section of the rule, “subject to due process of law, by mailing, registered mail return receipt requested, a copy of the summons and complaint to a registered agent for service, or to its principal place of business, or to its registered office.” The clear purpose of the rule is “to vest our courts with jurisdiction over foreign corporations to the outer limits permitted by due process.” Corporate Development Specialists, Inc. v. Warren-Teed Pharmaceuticals, Inc., 102 N. J. Super. 143, 148 (App. Div. 1968). By affidavit both Kansas City and Santa Ee contended that they are not New Jersey corporations, maintain no office and employ no personnel in New Jersey, own no property here and do no business in this State. They concede, however, that they have representatives in their respective New York City offices, who regularly call upon shippers in New Jersey to point out the advantages of routing their shipments, where practical, over their lines, and to acquaint shippers with the facilities and equipment available to them. They claim that their only connection with New Jersey is their bailment of cars to local railroads. This is explained as follows: When Kansas City or Santa Pe, or any other out-of-state connecting carrier, accepts a freight load which is ultimately to be routed into New Jersey for delivery there, the out-of-state connecting carrier charges the shipper the full price of the start-to-finish haul, carries the load over its tracks, delivers it to the railroad with tracks in New Jersey at a point where the local railroad’s tracks meet those of the out-of-state railroad, and pays the local railroad on a pro rata basis for that fraction of the total mileage which its hauling constitutes. Thus, if a Kansas City or Santa Pe freight car traverses the New Jersey tracks of the Penn-Central Eailroad, for example, then Penn-Central would be paid a rental fee in accordance with the industry-wide custom and practice laid down by the Association of American Bailroads.

In support of their argument, the third-party defendants refer to federal holdings to the effect that “mere solicitation” in a state by a nonresident corporation is an insufficient relationship to support the exercise of extraterritorial jurisdiction over that company, e. g., Green v. Chicago, Burlington & Quincy Ry., 205 U. S. 530, 27 S. Ct. 595, 51 L. Ed. 916 (1907); Michigan Central R. Co. v. Mix, 278 U. S. 492, 49 S. Ct. 207, 73 L. Ed. 470 (1929). They also cite later cases which entrenched and extrapolated the Green holding into the so-called “solicitation plus” doctrine, which basically establishes that something more is required than just solicitation by a nonresident corporation, e. g., Philadelphia & Reading Ry. Co. v. McKibbin, 243 U. S. 264, 37 S. Ct. 280, 61 L. Ed. 710 (1917); Fannin v. Chesapeake & Ohio Ry. Co., 204 F. Supp. 154 (D. W. D. Pa. 1962). However, just what may constitute the “plus” is not defined, but is resolved on the facts of the particular case. Moreover, the carriers urge that Reagent’s claim is unrelated to their “tenuous” business relationship with Hew Jersey, and therefore a “greater magnitude and/or continuity” of “contacts” with the state is required for the reasonable and fair exercise of jurisdiction than if the claim grew directly out of “doing business” here, citing the Corporate Development Specialists case, above. But the court there went on to say:

“* * * However, the concept of substantiality is clearly not an absolute, but rather a relative one. The notion is one of sufficient substantiality (given continuity) of the forum business to make it reasonable to exert jurisdiction as against the countering influence of non-relation of the cause of action. This, however, must be measured in the light of the attendant circumstances and any other factors exerting an influence toward justification for assertion of jurisdiction. * ® * [102 N. J. Super., at 152]

It must be recognized that the “mere solicitation” test (or “solicitation plus” doctrine), as articulated by succeeding courts, relies basically on the Oreen and McKibbin holdings. Their present applicability depends on the current viability of the underlying holdings. Decided during the infancy of extraterritorial jurisdiction, those cases, like others, proceeded essentially on an out-dated view of the requisites for jurisdiction. Early in the century jurisdiction was thought to be based on “power” as strictly delimited by state boundaries. Accordingty, a state was without jurisdiction to hail a nonresident corporation into the local courts unless that state was physically able to exert its sovereign power over it. The concept of power revolved closely around the concurrent concept of “physical presence” within the jurisdiction. Since the corporation had no real physical presence, as such, the fiction arose that this artificial person was “present” in the state of its incorporation or wherever it was “doing business.” The earlier courts, chary to expose foreign corporations to distant suits, carefully scrutinized the quantum of activities within a given state to determine the degree to which the firm was “doing business.” The “solicitation plus” doctrine was one outgrowth of this case-by-ease examination. Thus, both Green and McKibbin rely on the fundamental underpinnings of “power” as defined by strictly territorial concepts in determining proper jurisdiction and the limits of due process.

International Shoe Co. v. State of Washington, Office of Unemployment Compensation & Placement, 326 U. S. 310, 66 S. Ct. 154, 90 L. Ed. 95, 161 A. L. R. 1057 (1945), signaled a profound re-thinking of the mechanical evaluation principles of the past. Rejecting the quantum of activities test of earlier case law, the court held that “due process requires only that in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend Traditional notions of fair play and substantial justice’” (at 316). The court noted that the sales activities of defendant were “systematic and continuous” and indirectly generated a significant volume of business, and that, in conducting its intrastate affairs, it received the benefits and protection of the local laws. Accordingly, it held that defendant had established such “minimum contacts” as to validate the exercise of personal jurisdiction.

The essential question posed here is whether the holding of International Shoe has undercut the importance of the earlier, and more rigid, jurisdictional tests, particularly the “solicitation plus” doctrine. Prior to the International Shoe holding, increasing judicial dissatisfaction with the inflexibility of the mechanical rules caused a perceptible trend of lessening of the requirements as to what constituted “solicitation plus.” Frene v. Louisville Cement Co., 77 U. S. App. D. C. 129, 134 F. 2d 511, 146 A. L. R. 926 (1943) (“Although the rule has not been clearly and expressly repudiated by the Supreme Court, its integrity has been much impaired by the decisions which sustain jurisdiction when very little more than ‘mere solicitation’ is done” (at 517)). However, even after International Shoe the status of the earlier doctrines was unclear. The confusion stemmed from the fact that the Supreme Court did not expressly overrule the earlier eases but rather superimposed the “minimum contacts” test. Thereafter, succeeding courts have wrestled with the overlap and all but stripped the “solicitation plus” doctrine of meaning by finding sufficient contacts for personal jurisdiction where virtually any form of economic entry into the state was evident. Dodd v. Rahway Valley Co., 150 F. Supp. 599 (D. C. N. J. 1957) (the “plus” was provided by defendant’s running of a diner car on New Jersey lines of another railroad in addition to its solicitation in the forum); A. & M. Trading Corp. v. Pennsylvania R. R. Co., 13 N. J. 516 (1953) (jurisdiction found to exist by virtue of foreign steamship line’s solicitation in the forum, in addition to its unloading of ships in New Jersey and periodically overhauling them in dockyards here); Ackerley v. Commercial Credit Co., 111 F. Supp. 92 (D. C. N. J. 1953) (the occasional loading and unloading of ships as sufficient “plus”); Lasky v. Norfolk & W. Ry. Co., 157 F. 2d 674 (6 Cir. 1946) (a soliciting office within the state). Yariantly, it has been held that solicitation, in and of itself, may be sufficient “contact” to comport with the requirements of due process. Huck v. Chicago, St. P., M. & O. Ry. Co., 4 Wis. 2d 132, 90 N. W. 2d 154 (Sup. Ct. 1958); see also, Tauza v. Susquehanna Coal Co., 220 N. Y. 259, 115 N. E. 915 (Ct. App. 1915) ; American Asphalt Roof Corp. v. Shankland, 205 Iowa 862, 219 N. W. 28, 60 A. L. R. 986 (Sup. Ct. 1928).

Despite the tangled skein of case law, it seems apparent that the holding of International Shoe was intended to supplant the earlier mechanical rules with a general test of reasonableness. See Hutchison v. Chase & Gilbert, Inc., 45 F. 2d 139 (2 Cir. 1930) (L. Hand, J.); Dodd v. Rahway Valley Co., above, 150 F. Supp., at 603. Thus, International Shoe’s “implicit rejection” of the “physical presence” test and the “solicitation plus” doctrine has downgraded the “doing business” criterion to merely one of a galaxy of relevant factors to be considered in determining the permissibility of the exercise of extraterritorial jurisdiction. The court must not now merely balance the quantum of activities alone but must view the situation and weigh the entirety of the circumstances. See “State Court Jurisdiction,” 73 Harv. L. Rev. 909, 923-930 (1960); Farmers’ & Merchants’ Bank of Cattlesburg, Ky. v. Federal Reserve Bank of Cleveland, Ohio, 286 F. 566 (D. C. E. D. Ky. 1922); Frene v. Louisville Cement Co., above, 134 F. 2d, at 516; Dodd v. Rahway Valley Co., above:

* * * while International Shoe recognizes that the facts there show how little more than “mere solicitation-’ will suffice for valid service, that case does not say that same is the minimal requirement for valid service. Its real holding is, as A & M Trading Corp. construes it to hold, “that the due process requirements of the 14th amendment are satisfied if the suit does not offend ‘traditional notions of fair play defendant’s business, all are, in the aggregate, [102 N. J. Super., at

Accordingly, International Shoe supports the “strongly prevailing view that the earlier rulings of the Supreme Court in the Green and McKibbin cases are no longer a correct statement of the law. [Citations omitted]” Scholnick v. National Airlines, Inc., 219 F. 2d 115, 119 (6 Cir. 1955). Therefore, the appropriate test in determining whether the New Jersey court’s exercise of jurisdiction over the third-party defendants violates due process of law is an overall weighing of the connections of the railroads with this State and of the State’s interest in the proceedings.

The carriers contend that their solicitation of business and the bailment arrangement whereby their cars pass over New Jersey lines constitute insufficient “contacts” with New Jersey. However, they admit that significant numbers of their rolling stock may at any given time be carrying freight within the boundaries of the State and that they would receive payments for such use of their cars. They thereby derive direct economic benefit from operations within New Jersey; the rented vehicles form an integral part of the railway system of this State. Cf. Scholnick v. National Airlines, above; Berry v. Pennsylvania R. R. Co., 80 N. J. Super. 321 (Law Div. 1963).

Moreover, Kansas City and Santa Ee derive further benefits from the New Jersey shippers who send shipments via connecting carriers over their out-of-state lines. They actively solicit this business by sending representatives from their New York City offices. It may be admitted that they keep no property in this State and ship no goods into this State, and so the present case may be distinguished from those holding that a single shipment of items into New Jersey may be a sufficient “contact” for the exercise of personal jurisdiction. Cf. Roland v. Modell’s Shoppers World of Bergen County, 92 N. J. Super. 1 (App. Div. 1966). However, we are confronted with service, not manufacturing, industries, and their business operations necessarily are of a less tangible variety. Nonetheless, the initiation of advantageous economic relationships by the solicitors of Kansas City and Santa Ee constitutes a significant aspect of “doing business.” As the court said in Frene, above: “Solicitation is the foundation of sales * * *. No businessman would regard ‘selling/ the ‘taking of orders/ ‘solicitation’ as not ‘doing business’” (134 F. 2d, at 516). It must further be noted that solicitation by the agents of the carriers has been continuous and active, aimed at drumming up business from the substantial industrial concerns of this State.

Perhaps the greatest shift in the analysis of the “doing business” test since International Shoe has been the change in emphasis from the quantum of activities to their continuity. Even prior to the United States Supreme Court’s recognition of the significance of continuous business contacts, the federal courts had noted their relative importance:

But when jurisdiction has been extended to include some types or kinds of occasional acts and nearly all kinds of continuous operations, the rule which nullifies judicial power when a foreign corporation engages continuously and regularly in “mere solicitation” is. to say the least, anomalous.
* * * * a « a
It would seem therefore that the “mere solicitation” rule should be abandoned when the soliciting activity is a regular, continuous, and substantial cause of business, as it is in this ease. It constitutes, in the practical sense, both “doing business” and “transacting business,” and should do so in a legal sense. [Frene, above, 134 F. 2d, at 516]

Both Kansas City and Santa Fe employed full-time agents who “regularly” crossed the border into New Jersey to drum up business. Such “systematic and continuous” soliciting must be viewed as a relevant factor in judging the inherent fairness of the asserted jurisdiction. International Shoe v. State of Washington, above, 326 U. S., at 320, 66 S. Ct., at 154. Nor can it be maintained that the soliciting activity resulted in less than a significant volume of sales. The railroad industry necessarily does business in a multitude of states, all of which are intimately interconnected by the nature of the operations. As the court observed in Corporate Development Specialists, Inc., above:

* * * New Jersey territory can fairly be regarded as an integral segment of a seemingly nationally dispersed sales operation, with the probability that while no single state segment thereof is essential to defendant’s business, all are, in the aggregate. [102 N. J. Super., at 152]

Other significant factors, too, must be considered in this constitutional analysis. For one, Kansas City and Santa Fe, with respect to their soliciting and bailment operations, enjoy the protection and benefit of the laws of this State. See International Shoe v. Washington, above, 326 U. S., at 320, 66 S. Ct., at 154. Additionally, New Jersey possesses a direct state interest in providing a court system for its citizens. See International Milling Co. v. Columbia Transp. Co., 292 U. S. 511, 519-520, 54 S. Ct. 797, 78 L. Ed. 1396 (1934). The original two parties to this action regularly do business in this State; moreover, the third-party plaintiff is a New Jersey corporation. To uphold the contentions of the two carriers would be to force the resident corporation to engage in two distinct suits more than a thousand miles apart.

In sum, the combination of (a) the carriers’ economic penetration into this State by reason of their program of soliciting business and their freight car rental plan, and (b) the State’s interest in providing a forum for its citizens, provides a sufficient basis for finding that the exercise of jurisdiction by our court comports with the requirements of due process and in no way infringes on “traditional notions of fair play and substantial justice.” International Shoe v. Washington, above, 326 U. S., at 316, 66 S. Ct., at 154; Corporate Development Specialities, Inc. v. Warren-Teed Pharmaceuticals, Inc., above.

II

Kansas City and Santa Ee further argue that the exercise of jurisdiction in this case casts an unreasonable burden on interstate commerce and therefore cannot stand. Infringement of the federal interest in interstate railroad operations served as a basis for the earlier cases invalidating out-of-state service of process and extraterritorial jurisdiction —- this, of course, by reason of the Commerce Clause, U. S. Const., Art. I, § 8. Davis v. Farmers’ Co-op. Equity Co., 262 U. S. 312, 43 S. Ct. 556, 67 L. Ed. 996 (1923); Michigan Central Ry. Co. v. Mix, above; Denver & R. G. W. R. Co. v. Terte, 284 U. S. 284, 52 S. Ct. 152, 76 L. Ed. 295 (1932). See also, Glaser v. Pennsylvania R. R. Co., 82 N. J. Super. 16 (Law Div. 1963); but see, St. Louis Southwestern Ry. Co. of Texas v. Alexander, 227 U. S. 218, 33 S. Ct. 245, 57 L. Ed. 486 (1913); Berry v. Pennsylvania R. R. Co., above.

The railroads contend that the bailment procedure evolved in response to the Federal Government’s recurrent pleas for the facilitation of smooth interstate freight carriage and. to advance the best interests of the American people. Consequently, to subject them to suit here “would be tantamount to penalizing” them for their activities in the furtherance of interstate commerce. Whatever force this argument may have had in the past, its rationale does not stand up under closer scrutiny. Historically, the early cases were decided at a time when railroads were of paramount importance and influence in interstate transportation and communication. Today it is a hard fact of our national economic life that the railroads are in dire and frequently unsuccessful competition with the trucking industry, the airlines, and maritime carriers. The bailment arrangement, while perhaps beneficial to the commercial interests of the nation, is surely of equal benefit to the hard-pressed railroads. The plan enables the lines to provide better long-distance service and encourages the flourishing of many small and previously economically impractical units. As has been historically true of the railroads, the private interest is served at least as greatly as the public weal. Thus, subjecting the lines to multistato jurisdiction is not, in fact, to penalize them for engaging in interstate commerce, but rather an economic “cost” to be borne in return for the many reciprocal gains received.

It should be noted that the “burden on interstate commerce” language has all but disappeared from opinions dealing with jurisdictional issues such as those posed in this case. It could certainly be questioned whether the United States Supreme Court would today reaffirm the early holdings on such a ground. Accordingly, there is no apparent basis for the carriers’ claim of an unreasonable impediment to interstate commerce in this case.

Ill

Since we hold that the substituted service of process upon Kansas City and Santa Pe under the “long arm” provision of R. R. 4:4-4(d) is valid, we turn to their claim that the doctrine of forum non conveniens should be applied and the third-party complaint dismissed.

The doctrine of forum non conveniens is largely equitable in nature and discretionary in application, permitting the court to refuse to entertain an action even though it has jurisdiction. Vargas v. A. H. Bull Steamship Co., 25 N. J. 293, 294 (1957), cert. den. 355 U. S. 958, 78 S. Ct. 545, 2 L. Ed. 2d 534 (1958). It “presupposes at least two forums in which defendant is amenable to process.” Gulf Oil Corp. v. Gilbert, 330 U. S. 501, 506-507, 67 S. Ct. 839, 91 L. Ed. 1055 (1947); S. D. Sales Corp. v. Doltex Fabrics Corp., 96 N. J. Super. 345, 348 (App. Div. 1967). Since the doctrine is an equitable one, its application is limned by very general standards — e. g., the relative ease of access to proof; availability of compulsory process for witnesses ; the cost of obtaining willing witnesses, etc. Whether the doctrine will be invoked depends on the relevant facts and circumstances of each case. Gulf Oil Corp. v. Gilbert, above, 330 U. S., at 508, 67 S. Ct. at 839; Gore v. United States Steel Corp., 15 N. J. 301, 311 (1954), cert. den. 348 U. S. 861, 75 S. Ct. 84, 99 L. Ed. 678 (1954). As was said in Starr v. Berry, 25 N. J. 573 (1958)

* * * The present tendency is to avoid a rigid formula and to weigh sundry factors, private and public, which bear upon the justness of a plaintiff’s choice. But emphasis continues upon the element of harassment and vexation notwithstanding reference also to the element of trial convenience, [at 584]

And see Wangler v. Harvey, 41 N. J. 277, 286 (1963).

Invocation of the doctrine, however, must not be governed by a simple balancing of conveniences. Starr v. Berry, above, 25 N. J., at 584 and 587; Braucher, “The Inconvenient Federal Forum,” 60 Harv. L. Rev. 908, 910 (1947).

Once a court of competent jurisdiction entertains the action, only a strong showing of very great hardship upon defendant will defeat further proceedings in the forum. The chosen forum must be manifestly inappropriate. Plum v. Tampax, Inc., 402 Pa. 616, 168 A. 2d 315, cert. den. 368 U. S. 826, 82 S. Ct. 46, 71 L. Ed. 2d 30 (1961); and see Starr v. Berry, above, 25 N. J., at 587; Gore v. U. S. Steel Corp., above, 348 U. S., at 311, 75 S. Ct. at 84; Gulf Oil Co. v. Gilbert, above, 330 U. S., at 508, 67 S. Ct., at 839. Moreover, while the plaintiff’s residence within the forum is not dispositive of the applicability of the doctrine, it is of “high significance” in weighing the relevant considerations. Koster v. (American) Lumbermen’s Mutual Cas. Co., 330 U. S. 518, 67 S. Ct. 828, 91 L. Ed. 1067 (1947). Finally, a mere showing of inconvenience on the part of a defendant is not enough; it must also be established that dismissal or transfer of the action will cause no serious inconvenience to the plaintiff. Starr v. Berry, above, 25 N. J., at 587.

Accordingly, while the doctrine leaves much to the discretion of the court to which a plaintiff resorts, it is only the rare case where the combination and weight of the applicable factors are sufficient to justify its application. The test, as was said in Starr v. Berry, should be an exacting one, “practicable as well as inherently just. The doctrine was originated to prevent harassment of a defendant; it should not now be used offensively to embarrass or destroy a claimant’s opportunity to be heard.” [at 587].

In Mew Jersey the doctrine of forum non conveniens has primarily been applied in actions based on out-of-state, non-statutory torts involving personal injuries, where defendant is not a Mew Jersey resident and the bulk of the witnesses are also nonresidents. See Gore v. U. S. Steel Corp., above; Vargas v. A. H. Bull Steamship Co., 25 N. J. 293 (1957), cert. den. 355 U. S. 958, 78 S. Ct. 545, 2 L. Ed. 534 (1958). Actions based on contract, on the other hand, appear to be allowed to proceed to trial in the chosen forum, except in the most exceptional of circumstances, even where the relationship of the action and of the parties to the State is tenuous. Cf. James H. Rhodes & Co. v. Chausovsky, 137 N. J. L. 459, 461 (Sup. Ct. 1948); Quigley Co., Inc. v. Asbestos Limited, Inc., 134 N. J. Eq. 312, 313 (Ch. 1944).

The present action was instituted by Amercoat, a foreign corporation, authorized to do and doing business in Hew Jersey, against Reagent, a resident corporation. Reagent filed a third-party complaint against Kansas City and Santa Ee. Thus, for the purposes of this appeal, the “plaintiff” may be considered to be a resident of this State, and so the burden on the third-party defendants to show adequate cause for applying the doctrine is almost insuperable.

The carriers contend that most of the witnesses to be called would be from distant regions. However, in their affidavits they fail to specify the number of persons involved, or any difficult}'' in producing them, but rely on nothing more than a blanket statement. Moreover, plaintiff points out that the witnesses to be summoned by the original parties are readily available within this forum.

The railroads rely on the holding in B. Heller & Co. v. Perry, 201 F. 2d 525 (7 Cir. 1953), where the doctrine of forum non conveniens was applied to an action involving a railroad accident in a sister state. However, it should be noted that the matter was before a federal court, which could order a transfer of the action. Here the court’s only recourse would be a dismissal of the third-party complaint. The strongest factor militating against the application of the doctrine in this case is the fact that to adopt the argument advanced by the carriers would split the cause of action, for the original action would be unaffected. Defendant Reagent would be forced to maintain two separate causes of action more than a thousand miles apart.

The threat of foreign suits is but one of the costs of railroads doing business in many states. Kansas City and Santa Ee have long participated in sending their cars into or through Hew Jersey under the protection of our laws. They cannot now be heard to disclaim the right of a Hew Jersey court to pass on their possible liability. McGee v. International Life Ins. Co., 355 U. S. 220, 222—223, 78 S. Ct. 199, 2 L. Ed. 2d 223 (1957) (“modern transportation and communications have made it much less burdensome for a party sued to defend himself in a state where he engages in economic activity”). More importantly, any splitting of the present action would in our view cast a greater burden on third-party plaintiff Eeagent than on the carriers.

Forum non conveniens being essentially an equitable doctrine to be applied in the discretion of the trial judge, we will not substitute our judgment for his since we find no showing of clear abuse of that discretion.

Like the argument addressed to due process and the Commerce Clause, we find the claim based on forum non conveniens without merit.

Affirmed.


text:
    BOARD OF HEALTH OF THE TOWNSHIP OF SCOTCH PLAINS, PLAINTIFF-RESPONDENT, v. JOHN PINTO, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued November 17, 1969
    Decided February 2, 1970

      Before Judges Kilkenny, Labrecque and Leonard.

      Mr. Harry Kay argued the cause for appellant.

      Mr. James J. Walsh, argued the cause for respondent.

      Messrs. Crane and Beglin (Mr. Carlyle W. Crane, on the brief) filed a brief amicus curiae on behalf of the Plainfield Area Cartmen’s Association and other refuse collectors.
   The opinion of the court was delivered by

Kilkenny, P. J. A. D.

On October 3, 1968 defendant unilaterally sent bills with increased monthly rates to property owners in Scotch Plains for collecting their garbage and refuse, without applying to and receiving approval of the local board of health. This was in violation of section 6.2 of a Scotch Plains Board of Health ordinance, known as chapter 57-7. Por this violation he was convicted and fined $100 in the Scotch Plains Municipal Court. On appeal to the Union County Court, the conviction was affirmed.

The present appeal is from the judgment of the County Court. Defendant contends that (1) section 6.2 of the Scotch Plains Board of Health ordinance is an ultra vires exercise of municipal authority, and (2) section 8.1 of the same ordinance is “doubtful, vague and uncertain and violative of due process of law.”

The matter comes before us on a stipulation of facts signed by the attorneys for the respective parties. The stipulation may be summarized as follows:

The Township of Scotch Plains presently has an ordinance which limits to 11 the number of licenses that shall be issued in the township by the township board of health for the collection of garbage. This ordinance is presently being amended to make the number of such licenses unlimited. There is a biennial license fee of $100 for each license. Defendant Pinto is one of the 11 licensed scavengers. The scavengers bill the homeowners directly for the collection service. The ordinance provides that the rate they bill the homeowners must be approved by the board of health.

The making of the complaint and disposition of the matter by $100 fine imposed by the municipal court is conceded.

Eor the prrrpose of this appeal, it is stipulated that defendant did send a bill to a customer for residential service at an increased rate, without first having obtained the approval of the board of health. The customer did not pay to defendant the rate increase.

A copy of the ordinance in question was submitted and marked “Exhibit A”. Also submitted and marked “Exhibit B” is the proposed amendment to the ordinance.

I

We consider defendant’s first argument that section 6.2 of the ordinance in question is an ultra vires exercise of municipal authority.

Section 6.2 authorizes a change during the license year of the schedule of rates stated in the license application, but it requires the licensee to deliver to the board of health an amended schedule of rates with notice of the date when it is proposed to become effective, said date to be not less than 30 days after delivery of the new schedule. It further provides that “the amended schedule of rates shall not become effective on the effective date until approved by the Board of Health.” Further, notice of the change must be delivered by mail or otherwise to each resident of the township then being served by the license holder.

Defendant concedes that the collection and disposal of garbage is intimately associated with the public health and that stringent control is indispensable. He agrees that an ordinance regulating disposition of garbage, not in conflict with any applicable statute or legislative policy and bearing a reasonable relation to safeguarding the public health, is entitled to a presumption of validity. He cites Marangi Bros. v. Bd. of Com'rs of Ridgewood, 33 N. J. Super. 294 (App. Div. 1954). But he maintains that a municipal board of health has not been delegated any power or authority, to approve, disapprove, fix or determine the rates to be charged the customer for the collection and disposal of refuse, garbage and waste. Absent grant by the Legislature of municipal control of rates, defendant argues that rate control is solely vested in the State.

N. J. S. A. 40:52-l(c) expressly authorizes the “governing body” of municipalities to enact ordinances to license and regulate “scavengers.” N, J. S. A. 40:66-4 permits “the governing body” to make a contract for the collection and disposal of garbage, if bids have been advertised for whenever the amount of the contract exceeds $2500. N. J. S. A. 40:48-2 gives municipalities authority to adopt ordinances, regulations and rules “for the preservation of the public health.” See, too, N. J. S. A. 40:66-l giving the governing body authority over removal and disposal of garbage. By such enactments the Legislature has granted ample power to municipal governing bodies to accomplish control of the collection and disposal of garbage in furtherance of the public health. Marangi Bros., supra, 33 N. J. Super., at 300; Township of Dover v. Witt, 7 N. J. Super. 259 (App. Div. 1950).

Witt states, “Ample power to deal with the problem [disposal of garbage] has been granted to Municipal Boards of Health and Governing Bodies.” (Emphasis added) Cf. 7 N. J. Super., at 361 and the citations thereat. In Witt, defendant and another were convicted in the Municipal Court of Dover Township for violating ordinances of the board of health and governing body, prohibiting the dumping of garbage elsewhere than in a designated public dumping area. We affirmed the convictions on appeal. Significantly, the board of health ordinance and an ordinance adopted by the governing body of the township contained provisions of like nature as to the requirement to use the designated public dumping area, and prohibiting dumping of garbage elsewhere.

The propriety of separate ordinances by the township and the board of health was not questioned in Witt. We recognized there the rule laid down in Nicoulin v. Lowery, 49 N. J. L. 391 (Sup. Ct. 1887), that the powers vested in local boards of health are not necessarily antagonistic to the exercise of the powers granted to municipal governments. Both powers may co-exist, unless a legislative intent clearly appears otherwise. 49 N. J. L., at 393.

“Control of garbage and decaying vegetable and like matter is indispensable to the public health, safety and comfort.” Earruso v. Board of Health, E. Hanover Tp., 120 N. J. L. 463, 469 (Sup. Ct. 1938). In that case a board of health ordinance regulating the dumping of garbage was upheld as valid.

In the enumeration of the specific powers and duties of local boards of health, statutorily expressed in N. J. S. A. 26 :3-31, authority is granted to adopt ordinances and make rules and regulations in regard to the public health. Included among the listed purposes, are the powers

f. To regulate, control, and prohibit the accumulation of offal and any decaying or vegetable substance.
jfr * ?■; ¡J: # * $ ' *
h. To regulate, control, or prohibit * s' * the dumping of garbage * * *.

The powers delegated to municipal governing bodies are separately stated in legislative enactments, as noted above, in reference to garbage disposal and protection of the public health. But co-existence of municipal regulation in governing bodies and local boards of health has been established by the Legislature. Compare Atlantic City v. Abbott, 73 N. J. L. 281 (Sup. Ct. 1906), upholding a city ordinance limiting the use of public streets for collection of garbage, with Board of Health, Weehawken Tp. v. New York Central R. Co., 4 N. J. 293 (1950), upholding a local board of health ordinance regulating air pollution, despite the governing body’s general authority to protect the public health.

The Scotch Plains Board of Health had statutory authority to adopt ordinances under N. J. S. A. 26:3-31 regulating and controlling garbage collection and disposal. The use of licensed scavengers as provided for in the board’s ordinance to effect that purpose carried with it the power by the board of health to' control the rates charged by them. Licensees thereunder are subject to reasonable regulation and control as to the rates they charge. This is essential in the public interest. Since authority has been vested by the Legislature in both local boards of health and municipal governing bodies with reference to garbage collection and disposal, the incidental control over the rates to be charged when private scavengers are permitted for that purpose was not ultra vires.

II

We find no substantial merit in defendant’s claim that section 8.1 of the subject Board of Health ordinance — fixing the penalty as a fine of not exceeding $100 for violation of the ordinance — is “doubtful, vague and uncertain and violation of due process of law.”

Section 8.1 also provides for up to 30 days imprisonment upon failure to pay such fine. It also states: “However, where the penalty for such offense is limited by the state statute then such limitations shall be applicable notwithstanding the provisions of this ordinance.” (Emphasis added). Section 8.2 provides, additionally, that any licensee violating any provision of the ordinance, or the rules and regulations of the board of health relating thereto, may be subject to a suspension or revocation of his license upon due hearing before the board of health.

N. J. S. A. 26:3-70 and 71 provide:

26 :3-70. Local board may prescribe penalty.

The local board may prescribe a penalty for the violation of any provision of a health ordinance or code. Such penalty shall not l»c more than one hundred dollars nor less than two dollars.

26:3-71. Penalty need not be specific amount.

The penalty for the violation of a provision of a health ordinance or code need not be for a specific amount, but the local board may provide that the penalty shall not be less than one given sum nor greater than another given sum. The amount of the penalty between the maximum and minimum exclusive shall be left to the discretion of the court.

These two sections do not provide for imprisonment. However, N. J. S. A. 26:3-72, 75 and 77 authorize enforcement of the fine penalty in the municipal court to the end that a defendant who refuses or neglects to pay may be committed to the county jail for a period not exceeding 90 days.

Though the penalty provision of the ordinance is inartistically drawn, it complies in substance with the aforesaid statutory provisions. The fine imposed was within the statutory limit, as was the possible term of imprisonment upon failure to pay the fine. Moreover, the general reference to the statutory limitations fixed by the state statute is controlling. Since a board of health ordinance was involved, there could be no reasonable doubt that the “state statute,” referred to in section 8.1, related to that governing local boards of health, their ordinances and penalties for violation thereof.

The judgment of conviction is affirmed.