author: Pee Cubiam.

text:
    CHARLES HALL, PETITIONER-APPELLANT, v. BOARD OF PUBLIC UTILITY COMMISSIONERS, DEPARTMENT OF PUBLIC UTILITIES, STATE OF NEW JERSEY, AND PUBLIC SERVICE ELECTRIC AND GAS COMPANY, A NEW JERSEY CORPORATION, DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued November 4, 1970-
    Decided November 16, 1970.

      Before Judges Kilkenny, Halpeen and Lane.

      Mr. Lawrence B. Dvores (Passaic County Legal Aid Society) argued the cause for appellant.

      Mr. Oarl F. Bianchi submitted a brief on behalf of State Office of Legal Services, Department of Community Affairs, amicus curiae.

      Mr. James R. Lacey argued the cause on behalf of respondent Public Service Electric and Gas Company (Messrs. J. Harry Mulhern and James R. Lacey, attorneys).

      Mr. Joseph W. Ferraro, Jr., Deputy Attorney General, argued the cause for respondent Board of Public Utility Commissioners {Mr. George F. Kugler, Jr., Attorney General, attorney; Mr. William Gural, of counsel and on the brief).
   Pee Cubiam.

Petitioner appeals from a decision and order of the Board of Public Utility Commissioners dismissing his petition on the ground that a settlement had been negotiated between petitioner and Public Service Electric and Gas Company.

On July 17, 1969 Public Service discontinued petitioner’s electric and gas service for nonpayment of billings for service totaling $124.53. On August 1, 1969 petitioner offered to pay to Public Service $25 on account of the arrears to obtain restoration of his electric service. Prior to the shut-off he had received 13 notices of discontinuance. The petition seeking restoration of service together with other relief was filed August 12, 1969. Petitioner’s service was restored August 14, 1969 upon a partial payment of $25 and a representation by petitioner’s counsel that arrangements would be made to pay off the balance of the arrears. During the course of the hearing before the Board a settlement was negotiated under which petitioner agreed to pay $22 a month or his current monthly bill, whichever was greater, the excess of the payments over the monthly bill to be applied to liquidate the arrears.

The petition sought an order requiring Public Service to immediately restore gas and electric service pending, a hearing on the petition, an order requiring Public Service to continue to provide service so long as petitioner paid his current bill, and a declaration that a refusal to restore utility services upon a customer paying the current bill for service was an unlawful practice.

Petitioner argues that a public utility is not allowed to deny vital services to its customers for nonpayment of a past-due account where it has failed to establish that alternative but less drastic means of collection would either be impractical or unfair to its other customers, and that Public Service has applied its power to deny service to delinquent customers in a nonuniform, discriminatory and unreasonable manner, in violation of N. J. S. A. 48:3-2. Amicus curiae argues that a public utility has a duty to restore a customer’s utility service upon the tender of payment of the current bill regardless of any outstanding arrears; that Regulation 14:403-5(b) of the Regulations of the Board of Public Utility Commissioners requires a public utility to restore service that has been discontinued for nonpayment when a customer tenders payment of the current charges, and that if Regulation 14:403-5(b) allows a public utility to require payment of past due bills as a condition to the restoration of service, then the regulation is arbitrary, unreasonable and discriminatory.

The immediate controversy between petitioner and Public Service was settled. Petitioner’s service was restored and a payment schedule which would result in the liquidation of the arrears was established. The issue between the petitioner and Public Service is moot. Notwithstanding this fact, petitioner seeks a declaratory judgment that Regulation 14:403-5 (a) of the Board, allowing a public utility to discontinue service upon reasonable notice for “nonpayment of a valid bill due for service furnished at a present or previous location,” is arbitrary and unreasonable. Amicus curiae seeks a declaration that Regulation 14:403-5(b) as interpreted by the Board is arbitrary, unreasonable and discriminatory.

Regulation 14:403-5(b) provides:

Service shall be restored upon proper application when the conditions under which such service was discontinued are corrected, and upon the payment of all proper charges due from the customer provided in the tariff of the utility, or if the Board so directs when a complaint involving such matter is pending before it.

The challenge made by amicus curiae is that “all proper charges” cannot include arrears but must be limited to current charges.

In its decision and order the Board determined that Public Service properly followed Regulations 14:403-5 (a) and (b). Such finding by the Board is supported by credible evidence and will not be disturbed. Close v. Kordulak Bros., 44 N. J. 589 (1965). The Board’s adoption of Regulations 14:403-5 (a) and (b) and its interpretation of those regulations must be accorded a presumption of reasonableness. The petitioner and amicus curiae did not sustain their burden of showing that the regulations and the Board’s interpretation of them was unreasonable. Consolidated Coal Co. v. Kandle, 105 N. J. Super. 104, 118-119 (App. Div. 1969), aff’d o.b. 54 N. J. 11 (1969); In re Weston, 36 N. J. 258, 263-264 (1961), cert. den. 369 U. S. 864, 82 S. Ct. 1029, 8 L. Ed. 2d 84 (1962).

The decision and order of the Board of Public Utility Commissioners is affirmed.


source: Caselaw Access Project

author: Goldman», P. J. A. D.,

license: Public Domain

text:
    DENNIS BEARS, AN INFANT, BY HIS GUARDIAN AD LITEM JANE RUFF, AND JANE RUFF, INDIVIDUALLY, PLAINTIFFS-APPELLANTS, v. PAUL WALLACE AND FRANCES WALLACE, DEFENDANTS, AND UNSATISFIED CLAIM AND JUDGMENT FUND BOARD, RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued November 9, 1970
    Decided November 17, 1970.

      Before Judges Goldmans, Leonard and Mountain.

      Mr. Robert G. Garofalo argued the cause for appellants (Messrs. Ryan, Faster & Garofalo, attorneys).

      Mr. Cornelius W. Caruso argued the cause for respondent {Messrs. Caruso & Caruso, attorneys; Mr. Stanley B. Bright, on the brief).
   The opinion of the court was delivered by

Goldman», P. J. A. D.,

Plaintiffs appeal from the denial of their application for an order directing payment by the Unsatisfied Claim and Judgment Fund of judgments recovered against defendant Frances Wallace, the trial judge finding that they were obtained by fraud and collusion between the parties.

■ Dennis Bears, an infant, and Vincent Gugliotta were passengers in an automobile owned by Paul Wallace and allegedly operated by Frances Wallace when, on February 25, 1964, it ran into a steel light pole on Central Avenue, Orange. The infant, by his guardian ad litem Jane Ruff, and Jane Ruff individually, sued to recover for his injuries and medical expenses. Gugliotta also sued for his personal injuries. Both actions named Paul Wallace as the owner and Frances Wallace as the operator of the automobile, and charged negligence in its operation. Defendant Paul Wallace was let out of the case when he successfully moved for summary judgment against plaintiffs.

The consolidated actions came to trial before Judge All-corn sitting with a jury. Counsel for the Unsatisfied Claim and Judgment Fund appeared and attempted to participate in the trial, but was not allowed to do so when plaintiffs’ attorneys objected. Frances Wallace, the uninsured defendant, was represented by retained personal counsel. After four days of trial the jury returned the following verdicts against her: $10,000 for the infant Dennis, $4,671.30 for Jane Ruff, and $4,000 for Gugliotta.

Plaintiffs then respectively moved under N. J. S. A. 39:6-70 for payment of their judgments from the Fund. The matter was heard by Judge Allcorn and the motions denied.

At the hearing counsel for the Fund contended that there’ was ample evidence at the trial of collusion between the parties; it was Gugliotta who had been driving the Wallace car and not Prances Wallace, so that the condition of N. J. S. A. 39 :6-70 for payment out of the Pund was not satisfied. The statute requires that the applicant for payment show that he was not, at the time of the accident, operating an uninsured car.

Counsel for plaintiffs, on the other hand, argued that there was no showing by the Pund of any fraud or collusion, and that the court could not go behind the unanimous jury verdicts in plaintiffs’ favor.

Judge Allcorn observed that the Pund had not had an opportunity to participate in the trial, and so could presently question whether plaintiffs were entitled to payment out of the Pund. It had the right to rely upon the proofs adduced at the trial, particularly those with respect to who had been operating the automobile at the time of the accident.

The judge stated that he had taken extensive notes during the course of the trial, had carefully reviewed them and had concluded that the claims were founded upon fraud and collusion. He said that having observed plaintiffs’ demeanor throughout the trial, he was satisfied beyond any doubt that all of them had knowingly testified falsely when they said that Prances Wallace was driving the automobile at the time of the accident. And he was satisfied, beyond any doubt, that Gugliotta was in fact the driver. The judge pointed out that the police officer who arrived at the scene shortly after the accident had questioned the infant Bears, Gugliotta and Mrs. Wallace and each had told him Gugliotta had been driving. The officer had testified that upon arriving at the scene, he found Gugliotta behind the steering wheel. The hospital records of these three parties were introduced in evidence and the histories recorded therein stated that Gugliotta was the driver. The judge also observed that Gugliotta had suffered fractured ribs, a broken collarbone and damage to his mouth and teeth — injuries such as would be received by the driver of an automobile which struck a light pole head-on rather than by someone in the front passenger’s seat. By contrast, Mrs. Wallace had suffered nothing more than a fractured nose, cuts on her face and a sprained ankle, and she had suffered no injury to any area of her chest. These were not the kind of injuries a driver was likely to suffer in the circumstances.

N. J. S. A. 39 :6-76 provides:

No claim against the fund shall be allowed in any case in which the court shall find, upon the hearing for the allowance of the claim, that the judgment upon which the claim is founded was obtained by fraud, or by collusion of the plaintiff and of any defendant in the action, relating to any matter affecting the cause of action upon which such judgment is founded or the amount of damages assessed therein.

This section of the Motor Vehicle Security-Responsibilitjr Law (N. J. S. A. 39:6-23 ei seq.) has not as yet been construed by our courts. The purpose of the Unsatisfied Claim and Judgment Eund is “to provide a measure of relief for persons who sustain losses or injury inflicted by financially irresponsible or unidentified owners or operators of motor vehicles, where such persons would otherwise be remediless” Corrigan v. Gassert, 27 N. J. 227, 233 (1958). Although the statute is to be liberally construed to advance the remedy, due regard must be given to protect the Eund against possible fraud or abuse. Giles v. Gassert, 23 N. J. 22, 34 (1955). In Douglas v. Harris, 35 N. J. 270, 279 (1961), our Supreme Court emphasized that the Eund must be protected from fraud and be administered “in a fashion to assure that only those persons legitimately entitled to participate in its benéfits are paid therefrom. This is a duty imposed by public policy and owed to the contributors as well as the general public.”

The policy of the statute, in requiring a hearing on an application for payment out of the Eund, is to .protect the Eund against improper depletion “by the affirmative requirement that the applicant show at such hearing the existence of the conditions precedent specified by the statute, regardless of anything which has taken place previously in the case.” Minardi v. Nocito, 66 M. J. Super. 187, 193 (App. Div. 1961). We there held (at 194) that it was proper for this court to make independent findings of fact in such a situation, particularly so when the action upon which the claim for payment was based was not fully and fairly defended. Such was the case here: the Fund was not permitted to participate in the trial, and it is to be noted that defendants never moved for a new trial.

The thought expressed by Judge Kilkenny, writing for the court in Minardi, was more recently expanded by Judge Halpern in his dissent in Jamar v. Hodges, 107 N. J. Super. 495 (App. Div. 1969), a case dealing with the right of the Fund to be heard on the question of an additur that had been consented to by defendant uninsured motorist. He said:

A consideration of the Fund Law as a whole reveals a statutory scheme placing the ultimate decision for payment from the Fund, in most instances, upon the judiciary. The courts are the guardians of the trust money held in the fund. Szczesny v. Vasquez, 71 N. J. Super. 347, 358 (App. Div. 1962). It must hear all applications for the payment of judgments obtained against uninsured drivers. N. J. S. A. 39:6-69. It must be satisfied that the claimant (judgment creditor) has complied with all the conditions entitling him to payment; and the Fund is empowered to appear and be heard as to “why the order should not be made.” N. J. S. A. 39:6-70. [at 500-501]

The same considerations that make it proper for an appellate court to make independent findings of fact in a Fund payment case (Minardi, above) support Judge All-corn’s right to have made such findings at an earlier stage of the case, and this in the exercise of a court’s duty to protect the Fund from fraud and abuse.

We conclude that Judge Allcorn’s determination is well supported by the very substantial and telling evidence present in the record. Accordingly, his denial of plaintiffs’ application for an order directing payment by the Fund is affirmed.


author: Kolovsky, J. A. D.

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. JOHN WILBELY, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued October 19, 1970
    Decided November 16, 1970.

      Before Judges Coilfobd, Kolovsky and Cabton.

      Mr. John Selawsky argued the cause for appellant.

      Mr. Archibald Kreiger, Assistant Prosecutor, argued the cause for respondent (Mr. Joseph D. J. Qourley, Passaic County Prosecutor, attorney).
   The opinion of the court was delivered by

Kolovsky, J. A. D.

Defendant "Wilbely, Charles Harris, Jr. and David Howell were indicted for the rape of a 16-year-old girl. Defendant alone was tried to a jury, found guilty and appeals from the conviction and from his sentence of 20 to 25 years in State Prison.

Defendant’s attack on the sentence as “excessive and unduly punitive” lacks substance. If defendant be guilty, then the sentence was fully warranted in view of the heinous circumstances of the offense and defendant’s prior criminal record.

However, we have concluded that there must be a reversal and remand for a new trial because the trial court erred in overruling defendant’s objection to testimony, offered as part of the State’s case, that the victim had identified defendant at a lineup which had been conducted in the absence of defendant’s attorney. The attorney had, earlier that day, visited defendant at the police station where he was being held in custody on the charge here involved.

The State’s own proofs established that the police then knew that defendant had an attorney. Those proofs disclosed that the victim had given the police a description of the automobile in which her three assailants had carried her off and in which each had raped her. An automobile answering that description was stopped by the police. After questioning its driver, Charles Harris, Jr., the police placed Harris under arrest and transported him and the automobile to police headquarters. A pocketbook identified as that of the victim was found in the auto.

Acting on the basis of information furnished by Harris, the police then went to defendant’s home at about 9:30 on the morning following the commission of the crime. Defendant was arrested and taken to police headquarters where he was informed of the charges against him and “advised * * * of his rights.” He was allowed to make a phone call. Shortly thereafter he was visited first by his wife and then by an attorney, Alfred Eontanella. The police officers who conducted the lineup were aware of the attorney’s visit. As one of them testified in recounting the events prior to the lineup, “Mr. Alfred Eontinella [sic] came to the Detective Bureau stating that he was Mr. Willowby’s [sic] lawyer and he wanted to see him. This was also allowed.”

The third alleged culprit, Howell, was arrested at about 11:30 a.m. At approximately 12:30 p.m., Harris, Howell, defendant and a Paterson detective were placed in the lineup. The victim was brought in. She identified Harris, Howell and the defendant as the men who had raped her.

At the trial, defense counsel duly objected to the admission of any testimony relating to the identification at the lineup because counsel was not present at that time and because the circumstances of the lineup were unfair. The objection was overruled. Further, he requested a voir dire hearing to ascertain whether the in-court identification which the victim was then about to make was tainted by the allegedly improper out-of-court identification procedures. The request was denied.

The trial court erred. Whether or not the rule of United States v. Wade, 388 U. S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967), requiring the assistance of counsel at a lineup should be applied to all pre-indictment com frontations as well as to post-indictment confrontations need not be decided. Cf. State v. Moore, 111 N. J. Super. 528, 531-532 (1970). We decide only the narrower issue here presented. We hold that the Wade rule (1) is applicable to cases where, as here, the police know that the person under arrest and being held in custody on the charges for which he was later to be indicted and tried is represented by counsel, and (2) requires exclusion of testimony, when offered by the State, as to defendant’s identification at the lineup if the police nevertheless proceed with the lineup in the absence of counsel and without giving defendant the opportunity to have his counsel present. Cf. Escobedo v. Illinois, 378 U. S. 478, 491, 84 S. Ct. 1758, 1765, 12 L. Ed. 2d 977 (1964); Gilbert v. California, 388 U. S. 263, 273, 87 S. Ct. 1951, 1957, 18 L. Ed. 2d 1178 (1967).

In view of our ruling, it is unnecessary for us to determine whether, as defendant also contends, the lineup procedures were impermissibly suggestive. At the retrial, the State will be barred from introducing evidence of the identification at the lineup as part of its case. Before permitting the victim to make an in-court identification of defendant, the trial court will be required, if defendant requests it, to hold a preliminary hearing out of the presence of the jury to determine whether the proposed in-court identification is tainted by the illegal out-of-court identification procedures or whether the in-court identification has an independent source.

The other points argued by defendant require but brief comment to guide the court at the new trial. The police should not be permitted to testify as to what Harris had told them about defendant. Such testimony is inadmissible hearsay.

Further, while the fact of the death of the victim’s father may be made known to the jury to explain the failure of the State to call him as a witness to corroborate the testimony of his wife and daughter, there is no warrant for admitting the irrelevant evidence as to the alleged effect of the criminal episode on the father’s health and its relationship to his death.

The conviction is reversed and the canse remanded for a new trial.


author: Furman, J. S. C.

text:
    CLIFFORD HAGAMAN, PLAINTIFF, v. THE BOARD OF EDUCATION OF THE TOWNSHIP OF WOODBRIDGE IN THE COUNTY OF MIDDLESEX, DEFENDANT.
    Superior Court of New Jersey Chancery Division
    Decided October 30, 1970.

      Mr. Antonio B. Oioffi, attorney for plaintiff.

      Mr. Bichard W. Kracht for the defendant (Messrs. Hult and Berhow, attorneys).
   Furman, J. S. C.

On motion and cross-motion for summary judgment the issue is whether a deed in 1925 from plaintiff’s parents to defendant board of education created a fee simple determinable or a fee simple subject to a condition subsequent. The plaintiff is his parents’ sole heir.

The deed contains this language:

It is the understanding of the parties to this conveyance that the hereinbefore described land is conveyed solely for the purpose of being used for the erection and maintenance of a public school or schools and that the Board of Education of Woodbridge Township, N. J. will erect a school thereon on or before the school year of 1926 and use such building for school purposes.

The granting and habendum clauses lack any words of limitation or condition. Nowhere in the deed is a possibility of reverter or a right of reentry expressed.

The following facts are undisputed. A school known as H'agaman Heights School was built and maintained on the premises from 1926 to 1968. The premises are 200 feet square. In 1968 the school building was boarded up but it has not been razed. The premises are in use as a public playground, with swings, a sliding board, monkey bars and basketball courts. A full-time playground supervisor organizes and supervises activities during the summer vacation period.

According to the affidavit of Vincent McDonnell, Supervisor of buildings and grounds for the defendant board of education, the school building was obsolete in 1968. Both his affidavit and that of T. C. Cadwalader, defendant’s secretary, deny any present plan to sell the premises.

Language in an instrument which is alleged to create a fee simple determinable or a fee simple subject to a condition subsequent is strictly construed. Words of art are sought out. The law abhors a forfeiture. Lehigh Valley R. R. Co. v. Chapman, 35 N. J. 177, 182, 188 (1961), cert. den. 368 U. S. 928, 82 S. Ct. 364, 7 L. Ed. 26, 192 (1961); Oldfield v. Stoeco Homes, Inc., 26 N. J. 246, 255 (1958); Eggleston v. Fox, 96 N. J. Super. 142, 146 (App. Div. 1967); Shuster v. Board of Education, Hardwick Tp., 17 N. J. Super. 357, 359 (App. Div. 1952); Restatement, Property, §§ 44, 45 (1936); 2 Powell, The Law of Real Property, §§187, 188 (1966).

A construction that an instrument creates a fee simple determinable hinges upon such words of art fixing a conditional limitation as “so long as,” “until,” or “during.” The possibility of reverter may be expressed but may also be inferred from other language in the instrument evidencing plainly that the estate created was to determine and thus to revert to the grantor or his heirs, upon the abandonment of the use for which it was created or upon some other conditionál limitation. Eggleston v. Fox, supra; Board of Chosen Freeholders of Cumberland County v. Buck, 79 N. J. Eq. 472, 476 (Ch. 1912); Restatement, Property, § 44; 2 Powell, op. cit. § 187.

To establish a fee simple subject to a condition subsequent the courts have required an express provision that upon the occurrence of that condition the grantor or his successors in interest may terminate the estate and reenter. Oldfield v. Stoeco Homes, Inc., supra: Cornelius v. Ivins, 26 N. J. L. 376, 384 (Sup. Ct. 1857); Restatement, Property, § 45; 2 Powell, op. cit. § 188.

A parallel case to this one is Board of Education, West Paterson v. Brophy, 90 N. J. Eq. 57 (Ch. 1919). A deed recited: “Which said premises are hereby conveyed to and for the purpose of having erected thereon a district school house.” After discontinuance of the school use Vice-Chancellor Lewis ruled that the deed created neither a fee simple determinable nor a fee simple subject to a condition subsequent.

This court holds that the deed from plaintiff’s parents to defendant board of education does not accord with the requisites imposed by law, which must bei strictly construed, to establish a fee simple determinable or a fee simple subject to a condition subsequent.

A further issue implicit in the facts but not raised by the pleadings is whether defendant board of education holds a fee simple absolute subject to a trust for the charitable purpose of maintaining an educational facility.

Brophy v. Board, &c., West Paterson, 12 N. J. Misc. 460, 172 A. 910 (Ch. 1934), was a follow-up of the 1919 decision supra, involving the same deed and premises. In the intervening period defendant therein had put the building to a use “in part at least for other than school purposes.” Vice-Chancellor Lewis determined, as had not been necessary in the earlier decision, that the deed conveyed a fee simple absolute without a charitable trust.

Some distinction may be drawn in the wording of the Brophy and Hagaman instruments. The former expresses the grantor’s purpose only and thus may have been held to be precatory. The latter expresses an understanding of both parties to the deeid, thus moving towards that element of a trust, the imposition of enforceable duties upon the grantee as trustee. Restatement, Trusts 2d, §351 (1959); 3 Scott, The Law of Trusts §351 (1939).

A construction that an instrument creates a charitable trust should be favored. See, e. g., MacKenzie v. Trustees of Presbytery of Jersey City, 67 N. J. Eq. 652 (E. & A. 1905).

Nor is this court compelled by stare decisis to adhere to decisions of the former Court of Chancery, a court of like jurisdiction. Wolf v. Home Insurance Co., 100 N. J. Super. 27, 35 (Law Div. 1968), aff’d 103 N. J. Super. 357 (App. Div. 1968); 20 Am. Jur. 2d, Courts, §201 (1965).

Under the circumstances leave is granted to plaintiff to amend his complaint to seek the enforcement of a charitable trust (R. 4:9-1) and to defendant to answer and counterclaim for a declaratory judgment or for instructions whether a public playground may be substituted for a school use, pursuant to the doctrine of cy pres. Cf. Board Education, West Paterson v. Brophy, supra, at 63.


author: Tumulty, J. S. C.

text:
    VINCENT J. MORROCCO, AS AGENT FOR ROY PETERSON, PLAINTIFF, v. JOHN FELTON; JOHN HOLMES; LONNIE IRVING; JOHN JAMISON; JAMES KEATON; GEORGE LIGHTFOOT; JOHN LOCKETT; JOHN MILNER; JOHN NAPPER; WILLIE NORMAN; JOHN POTEAT; JAMES SHIRLEY; WALLACE SMITH; MARY STEVENS; BETTY WILLIAMS; OLIVER WILLIAMS; AND MARY YOUNG, DEFENDANTS.
    Superior Court of New Jersey Law Division
    Decided September 25, 1970.

      Mr. Marl 8. Aronson appeared for plaintiff.

      Mr. Franlc B. O’Neill, Jr. and Miss Judith A. Rosenstein appeared for defendants (Essex County Legal Services Corporation; Richard, M. Blumberg, Newark-Essex Joint Law Reform Project, of counsel).
   Tumulty, J. S. C.

This is a motion upon order to show cause by defendant tenants to remove these 17 actions for possession from the Essex County District Court to the Superior Court pursuant to N. J. 8. A. 2A:18-60, and for consolidation of the same with the class action previously filed with this court by these tenants as plaintiffs in the matter of North Day Tenants Ass’n v. Peterson, under R. 4:38-l(b).

Plaintiff Roy Peterson is the owner of certain multiple dwelling apartments located at 292, 288 and 284 North Day Street in Orange, New Jersey. Defendants are all tenants residing at these premises under oral month-to-month agreements. On August 17, 1970 Peterson through his agent Vincent J. Morroceo filed summary dispossess proceedings pursuant to N. J. S. A. 2A:18 — 53 in the Essex County District Court against these defendants for nonpayment of rent. These tenants had formed the North Day Tenants Association in May 1970 and had since that time been withholding their rents and paying the same into an escrow account due to an alleged continued lack of habitability of the premises.

On August 27, 1970 the tenants filed a verified complaint with the Superior Court upon order to show cause, and at the same time brought the present application under order to show cause, seeking to remove the dispossess actions and consolidate them with their affirmative action. Brought as a class action pursuant to R. 4:32-1 et seq., the tenants as plaintiffs joined the landlord Peterson, his agent and the four mortgagees of the premises as defendants, seeking declaratory judgment, injunctive relief and damages on the issue of habitability. N. J. S. A. 2A:16-50 et seq. Plaintiffs allege that any or all of the defendants joined may be jointly or severally liable under the causes of action set forth'.

N. J. S. A. 2A:18-60 provides that

At any time before an action for the removal of a tenant comes on for trial, either the landlord or person in possession may apply to the superior court, which may, if it deems it of sufficient importance, order the cause transferred from the county district court to the superior court. * * *

This statute “recognizes that certain types of proceedings to remove a tenant involve rights or issues too importaút to be heard in a summary manner without a right of appeal.” Master Auto Parts, Inc. v. M. & M. Shoes, Inc., 105 N. J. Super. 49, 52 (App. Div. 1969); see Sbrolla v. Hess, 133 N. J. L. 71 (Sup. Ct. 1945), and Red Oaks, Inc. v. Dorez, Inc., 117 N. J. L. 280 (Sup. Ct. 1936).

It is a matter of discretion with the Superior Court to decide if an action is “of sufficient importance,” and thus should be removed. Carteret Properties v. Variety Donuts, Inc., 49 N. J. 116, 130 (1967). “However, discretion means legal discretion in the exercise of which the trial judge must take account of the applicable law and the particular circumstances of the case, to the end that a just result is reached.” Master Auto Parts, Inc. v. M. & M. Shoes, Inc. supra, 105 N. J. Super. at 53.

Under N. J. S. A. 2A :18^53 the county district court is normally the proper place to institute and adjudicate dispossess proceedings. Those proceedings, however, must be heard in a summary manner, and that court lacks any general equitable jurisdiction. Scott v. Bodnar, 52 N. J. Super. 439 (1958), certif. den. 29 N. J. 136 (1959). Although the county district court may hear equitable defenses and, entertain equitable concepts, it is beyond the power of that court to grant permanent injunctive or other equitable relief to these parties as may appear just and appropriate under the circumstances presented. See Vineland Shopping Center, Inc. v. DeMarco, 35 N. J. 459 (1961); Citizens First National Bank v. Brierly, 98 N. J. Super. 497 (1968), and Olstowski v. Schreck, 91 N. J. Super. 100 (1966).

N. J. S. A. 2A:18--59 provides that summary dispossess actions in the county district court “shall not be appealable except on the ground of lack of jurisdiction,” while N. J. S. A. 2A:18-61 allows a general appeal of right from the judgment of the Superior Court in actions which have been removed. Although our Supreme Court has questioned the wisdom of this distinction in Marini v. Ireland, 56 N. J. 130 (1970), at 140, fn. 1, the statute presently remains in force. Further, the decision in Marini, at 138, 139, fails to make clear what may now be considered a jurisdictional question and thus appealable on the ground of lack of jurisdiction. When, as here, the diverse issues of law and questions of fact raised are of such importance and magnitude to the whole substantive area of landlord-tenant law, removal appears appropriate so as to afford all parties an appeal as of right.

The position of the tenants is that the landlord has violated his implied warranty of habitability, resulting in a failure of consideration, and that the alleged deleterious conditions violate the property maintenance and housing codes of the State of New Jersey and the City of Orange. See Reste Realty Corp. v. Cooper, 53 N. J. 444 (1969), and Marini v. Ireland, supra. In particular, the tenants place in issue alleged non-habitability existing in common areas of the premises, such as roofs, stairways, entrances and basements, in addition to questions concerning individual apartments.

Counsel for the landlord argues in rebuttal that the county district court has jurisdiction to deal fully with the question of habitability under Marini. The Supreme Court there held that the tenant may raise a defense of nonhabitable conditions existing in his apartment in a dispossess action for nonpayment of rent. In a subsequent expansion of that decision, the Essex County District Court, in Academy Spires, Inc. v. Brown, 111 N. J. Super. 477 (1970), held that the tenant may raise the issue of nonhabitability by withholding his rent and seeking a “percentage abatement” at the dispossess proceedings.

The court may take judicial notice that the cost of repairs to individual apartments and common areas in this instance will be extensive. This is clearly shown in the pleadings. The tenants have, to date, withheld nearly $5,000 for the purpose of effecting repairs. The Legislature of New Jersey has made a policy decision that matters involving an excess of $3,000 should be heard in Superior Court. N. J. S. A. 2A:6-34. The matters here in controversy as to rents withheld and costs of repairs clearly exceeds $3,000, and consequently is sufficient to merit removal of these actions to the Superior Court.

Although Marini v. Ireland and Academy Spires v. Brown, supra, have recognized important rights accruing to the tenant, both have dealt only with the question of habitability insofar as it relates to the tenant’s individual apartment. In the present ease, important issues of law arise as to the lack of habitability in common areas of the premises.

Presently the landlord is under a statutory duty to maintain common areas in good repair. N. J. S. A. 55:7-l provides that “Every tenement house and all the parts thereof, shall be placed and maintained in good repair. * * *” See Michaels v. Brookchester, Inc., 26 N. J. 379 (1962). If the landlord breaches this obligation and the tenant is injured, the tenant has a right of action against the landlord for the damages sustained. Saracino v. Capital Properties Associates, Inc., 50 N. J. Super. 81, 85, 86 (App. Div. 1958). However, as the Supreme Court pointed out in Reste Realty Corp. v. Cooper, 53 N. J. 444 (1969) :

It has come to be recognized that ordinarily the lessee does not have as much knowledge of the condition of the premises as the lessor. Building code requirements and violations are known or made known to the lessor, not the lessee. He is in a better position to know of latent defects, structural and otherwise, in a building which might go unnoticed by a lessee who rarely has sufficient knowledge or expertise to see or to discover them, [at 452]

This court is obligated under the tenants’ complaint to render a declaratory judgment as to the rights and liabilities of the parties viz-d-viz the common areas of the premises. The tenants would likewise raise this issue in the dispossess proceedings in the county district court. This course of action might well result in conflicting decisions on the issue, in addition to a needless duplication of judicial efforts. When, as here, the court must determine and declare legal rights and responsibilities of the parties in an important substantive area of the law which heretofore has not been clearly defined, such a decision should rightfully be decided in the Superior Court. Thus, removal is merited.

This court has previously examined the question of removal in Academy Spires, Inc. v. Jones, 108 N. J. Super. 395 (Law Div. 1970). That decision refused removal on the grounds that (1) the defense of nonhabitability could be raised in the county district court and (2) the tenant’s motive in seeking transfer was for the purpose of avoiding the rule forbidding joinders of another claim or party in an action for possession, B. 6:3-4, and hence was not of sufficient importance to merit transfer. Since that time, however, the Supreme Court has decided Marini v. Ireland, supra, and this court must re-examine Academy Spires v. Jones in light of the more recent decision. Although Academy Spires accords with Marini on the jurisdictional propriety of the defense of nonhabitability, that earlier decision could not anticipate nor dispose of the many as yet unanswered questions of law raised by Marini, and must be considered accordingly.

The court may take judicial notice of the present state of flux of landlord-tenant law, as well as the recent attention given to this area of the law by all three branches of the State Government. See, N. J. S. A. 2A:42-10.10 et seq. (Assembly Bill 1204), recently enacted and approved September 30, 1970. The critical shortage of housing, the number of substandard dwelling units, and inflationary pressures on both landlord and tenant are well documented. These factors combined with the present uncertainties in the law, create a situation requiring a clear and precise delineation of the rights of landlords and tenants alike.

The tenants in their complaint have raised the question of whether a liability for maintaining decent and habitable dwellings may extend beyond the landlord to include the mortgagee. In this regard the court notes the decision of the California Supreme Court in Connor v. Great Western S. & L. Ass’n, 69 Cal. 2d 850, 73 Cal. Rptr. 369, 447 P. 2d 609 (1968). In an opinion by Chief Justice Traynor, that court held the mortgagee liable for the damage caused by the cost of repairing defects in the mortgaged premises. The court there stated:

The determination whether in a specific case the defendant will be held liable to a third person not in privity is a matter of policy and involves the balancing of various factors, among which are:
(1) The extent to which the transaction was intended to affect the plaintiff S: * *
(2) The moral blame attached to the defendant’s conduct * * *
(3) The policy of preventing future harm.

In order to reach the result apparently required by Marini, i. e., habitable dwellings, it may well be necessary to join third parties. Especially where the property in question is heavily mortgaged, some determination on the mortgagee’s liability appears appropriate. The court need not decide this issue, however, as it is not presently before the court. As previously noted, joinder of these parties would be prohibited in an action for possession, thus preventing the county district court from ever reaching a determination on that issue. See B. 6:3-4. Eemoval would seem especially appropriate in those cases where it appears to the court that no final resolution of the issues involved can be adjudicated without the joinder of additional parties.

Unfortunately,

* * * the statute furnishes no guidelines for the solution of the question of what constitutes a case of ‘sufficient importance.’ It is self evident that every tenant removal is of importance to both the landlord and tenant. It could be argued that every such case qualifies for removal to the Superior Court. [Marini v. Ireland, supra, 56 N. J. at 140]

Every motion for removal must therefore be considered on a ease by ease basis to achieve an equitable result. In making that determination, the court should be guided by certain guidelines, among which are:

The importance to the public good of the issues presented, in particular those cases where First Amendment constitutional rights may be involved, e. g., the right of tenants to organize and redress their grievances without threat of retaliation;

The complexity of the issues presented, where discovery or other pretrial procedures are necessary or appropriate;

The amount in controversy, taking into account the alleged extensiveness of the defects and cost of repairs as well as the amount of rent claimed to be in default;

The need of equitable relief of a permanent nature, such as guarding against retaliatory measures or otherwise preserving the jurisdiction of the Court;

The need for clarification or re-examination of the substantive law involved, requiring a right of appeal to the parties on non-jurisdictional matters;

The presence of - multiple actions for possession arising out of the same transaction or series of transactions, such as where the dispossesses are based upon a concerted action by the tenants involved;

The appropriateness of class relief;

The need for uniformity of result, such as where separate proceedings are simultaneously pending in both the Superior Court and the County District Court arising from the same transaction or set of facts, and

• The necessity of joining additional parties or claims in order to reach a final result.

In those cases in which one or more of these considerations are present, the court should grant removal. Thus, the mere fact that the amount in controversy is within the county district court’s jurisdiction should not automatically preclude the Superior Court from hearing a controversy otherwise particularly suited for its jurisdiction.

In consideration of the foregoing, therefore, I grant defendant’s motion for removal and consolidation, and the court will schedule these matters for full plenary hearing.

       The Court also notes the case of Rice v. First Federal S. & L. Ass’n., Fla. App., 207 So. 2d 22, 23 (1968) and the action of the California Senate in Bill No. 1304. This authority appears to negate the holding in Connor, supra, even though the facts in Rice, supra, are distinguishable. See also Pfeiler, “Lenders’ Liability in Tract Financing.” Legal Bulletin of United Savings and Loan League (Mar. 1969), at 85, and A.B.A. Journal 1002 (Oct. 1970), “What’s New In The Law.”


author: Puller, J. S. C.

text:
    ASSOCIATION OF NEW JERSEY STATE COLLEGE FACULTIES, INC., A NEW JERSEY CORPORATION, PLAINTIFF, v. THE BOARD OF HIGHER EDUCATION, THE GOVERNOR’S EMPLOYEE RELATIONS POLICY COUNCIL, FRANK MASON, DEPUTY DIRECTOR OF THE OFFICE OF EMPLOYEE RELATIONS, THE PRESIDENT OF THE CIVIL SERVICE COMMISSION, THE STATE TREASURER, THE DIRECTOR OF THE DIVISION OF BUDGET AND ACCOUNTING, AND THE LEGISLATIVE BUDGET AND FINANCE DIRECTOR, DEFENDANTS.
    Superior Court of New Jersey Law Division
    Decided October 7, 1970.

      Civil action in lieu of prerogative writs.

      Mr. Jack Mandell for plaintiffs (Messrs. Balk, Jacobs, Goldberger & Mandell, attorneys).

      Mr. Theodore A. Winard, Deputy Attorney General, for defendants (Mr. George F. Kugler, Attorney General, attorney).
   Puller, J. S. C.

This is an action in lieu of prerogative writs. Plaintiff requests summary judgment commanding defendant Board of Higher Education to meet at reasonable times and negotiate in good faith with plaintiff Association (hereinafter referred to as plaintiff), and to enjoin the Deputy Director of the Office of Employee Relations from interfering with the negotiations between plaintiff and defendant Board of Higher Education. This is also an action for a judgment declaring the Office of Employee Relations and the Governor’s Employee Relations Advisory Council to be illegal and void, and for a judgment declaring unconstitutional L. 1970, c. 96, and also to enjoin defendants from the implementation of the Hay Associates Report.

Defendants have made a cross-motion for summary judgment. They contend that the Governor and his duly constituted representatives may exercise authority over the conduct of collective negotiations in the State Government and that the provisions, and the implementation of the Hay Associates Report are constitutional and do not interfere with good faith negotiations.

The New Jersey Employer-Employee Relations Act, N. J. S. A. 34:13A — 1 el seq. (L. 1968, c. 303) was adopted in 1968 as an amendment and supplement to the New Jersey Mediation Act. This statute created the Public Employment Relations Commission consisting of seven members, to be appointed by the Governor by and with the consent of the Senate. Of such members two shall be representatives of public employers, two shall be representatives of public employee organizations, and three shall be representatives of the public, including the appointee who is designated as chairman. The act followed a long study by a legislative commission of the need for establishing a procedure for considering the grievances of public employees. L. 1966, c. 70. The commission recommended “legislation setting forth a procedure that is fully compatible with and complementary to existing Civil Service systems and present laws and regulations governing personnel matters in public employment at all government levels in New Jersey.” In particular, it said that such legislation, among other things, “should establish the obligation of public employers * * * to meet with employees through representatives of their own choosing for the mutual resolution within the law of grievances and proposals.” The detailed history of the act appears in the opinion of the Supreme Court in Lullo v. International Ass’n of Firefighters, 55 N. J. 409 (1970). The law was enacted on September 13, 1968 over the conditional veto of Governor Hughes.

On the same day an act authorizing management consultant contracts for study of state employment conditions was adopted by the Legislature for the purpose of providing the Governor and Legislature with standards and guidelines in the preparation of budgets, to permit the State to gain and maintain a competitive position in its recruitment and retention of employees. L. 1968, c. 304.

On December 19, 1968 Governor Hughes announced that he had established a State Employee Relations Policy Council to act as a policy unit for the State of New Jersey in all matters concerning employee relations. The Governor further announced that the Council would consult on a continuing basis with directors of state departments and agencies in order to resolve the entire range of policy issues concerning employee relations. On January 17, 1969 the Governor issued a directive to all members of the Cabinet, heads of all divisions, departments, bureaus, institutions and agencies in the State of New Jersey. The Governor directed that “any action, or judgment or decision on any question or issue falling within the meaning of the law, should be taken only after consultation with the State Employee Eelations Consultant.”

On July 15, 1969 the Public Employment Eelations Commission created by L. 1968, c. 303, supra, issued a certification of Public Employee Eepresentative to the effect that plaintiff is the duly certified collective negotiations representative of the faculties of the six state colleges. Plaintiff and defendant Board of Higher Education commenced collective negotiations on July 19, 1969 and met periodically until February 18, 1970, when an impasse in negotiations was declared by plaintiff and a mediator was appointed by the Public Employment Eelations Commission according to the provisions of N. J. S. A. 34:13A— 6 (b) (L. 1968, c. 303), supra. Mediation sessions were held between February 20, 1970 and May 6, 1970. The mediator was unable to resolve the impasse in collective negotiations, thereby resulting in the appointment of a fact-finder by the Commission on May 15, 1970, also according to the terms of N. J. S. A. 34:13A-6(b). Fact-finding hearings were held on May 26 and 27, at which defendant Frank Mason, the Deputy Director of the Office of Employee Eelations, presented the position of the State and participated in the negotiations.

On April 2, 1970 Governor Cahill issued Executive Orders Nos. 3 and 4 creating the Governor’s Employee Eelations Policy Council and the Office of Employee Eelations. The purpose of the Council, as set forth in the Executive Order, was to make recommendations to the Governor concerning employee relations and relative matters involving state employees. The purpose of the Office of Employee Eelations, as set forth in Executive Order No. 4, was to assist the Council and to act as the Governor’s agent in collective negotiations. The Director of Employee Relations was also empowered to make recommendations and reports to the Council on state employee relations.

On or about July 1, 1970 the state of New Jersey, pursuant to the provisions of L. 1968, c. 303 establishing a study of state employment, and the provisions of L. 1970, c. 96 appropriating funds for the implementation of the management consultant (Hay) report, placed state employees on appropriate salary scales and ranges corresponding to the guidelines set down by the report. On July 13, 1970 the President of the Civil Service Commission advised that aggrieved state employees may appeal to a Hay Appeals Review Board from salary ranges assigned to their class titles, with a review by the Civil Service Commission.

The issues to be decided are: (1) whether the Board of Higher Education is a public employer within the meaning of the 1947 New Jersey Constitution and the New Jersey Employer-Employee Relations Act; (2) whether the Governor’s Employee Relations Policy Council and the Office of Employee Relations are duly constituted bodies in the Executive Branch of the State Government in accordance with the provisions of the 1947 Constitution (Executive Orders 3 and 4); (3) whether L. 1970, c. 96 provides for an unconstitutional delegation of legislative power and whether it violates the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution, and (4) whether the implementation of the recommendations of the Hay Report interferes with good-faith collective negotiations.

I

N. J. S. A. 34:13A-3(c), in pertinent part, provides as follows:

* * * This term shall include “public employers”, and shall mean the State of New Jersey, or the several counties and municipalities thereof or any other political subdivision of the State or a school district, or any special district or any authority, commission or board, or any branch or agency of the public service.

Plaintiff contends that defendant Board of Higher Education or its representatives is the “public employer” in these negotiations and that the Governor, through his representative, the Deputy Director of the Office of Employee Delations, Frank Mason, has interfered and continues to interfere in the conduct of negotiations and in the means for the resolution of the impasse.

In support of its argument plaintiff cites Art. V, § IV, par. 1 of the 1947 New Jersey Constitution, which provides, inter alia:

All executive and administrative offices, departments, and instrumentalities of the State government, * * * shall be allocated by law among and within not more than twenty principal departments, in such manner as to group the same according to major purpose so far as practicable * * *.

Pursuant thereto the Legislature enacted L. 1966, c. 303 (18A:3-1 et seq.), whose title reads:

An Act concerning higher education, establishing a Department of Higher Education as a principal department in the Executive Branch of State Government and providing an appropriation therefor.

By virtue of N. J. S. A. 18A :3-l, the Department of Higher Education consists of a Board of Higher Education, a Chancellor, and such divisions, bureaus, branches, committees, officers and employees as are specifically referred to in the Higher Education Act.

General supervision of higher education in the State is reposed in the Board of Higher Education by N. J. S. A. 18A :3-13, which provides:

It shall be the duty of the board of higher education to advance long range planning for the system of higher education as a whole in the state; establish general policy for the governance of the separate institutions; coordinate the activities of the individual institutions which, taken together, make up the system of higher education in New Jersey; and maintain general financial oversight of the state system of higher education. The board shall not administer the individual institutions of higher education, its own administration being specifically reserved unto each of such institutions.
Within the limitations imposed by general legislation applicable to all agencies of the state and the provisions of this chapter, the board is hereby granted exclusive jurisdiction over higher education in this state and its constituent parts and the requisite power to do all things necessary and proper to accomplish the aims and carry out the duties provided by law.

Additional powers and duties are granted to the Board of Higher Education in N. J. S. A. 18A:3-14(h) which commands the Board to.

Set policy on salary and fringe benefits, and establish personnel policies for the public institutions of higher education; * * *.

In N. J. S. A. 18A:3-16 the Board of Higher Education is granted all powers, in addition to those specifically provided by law, requisite to the performance of its duties.

As stated, defendants contend that the Board of Higher Education is not a public employer within the meaning of the 1947 Constitution and the New Jersey Employer-Employee Relations Act (N. J. S. A. 34:13A-3(c)), but that the Governor of the State is the public employer.

The Legislature, in L. 1968, c. 303, did not define the “representative of the public employer” in the State Government obligated to negotiate the terms and conditions of employment. N. J. 8. A. 34:13A-3(c), N. J. 8. A. 34:13A-5.3. In the absence of any express or clearly implied legislative authorization to the Board of Higher Education in this respect, resort must be had to applicable principles of constitutional law, with due deference to the power of the Governor to superintend the internal administration of the Executive Branch of the State Government. Art. V, Sec. I, par. 1, of the 1947 Constitution provides in pertinent part:

The executive power shall be vested in a Governor.

Art. V, Sec. IV, par. 2 provides in pertinent part:

Each principal department shall be under the supervision of the Governor.

To sustain the authority of the Board of Higher Education in the conduct of collective negotiations with state employees in the absence of a clear allocation of such function by the Legislature in effect tends to interfere with the execution of the duty of internal supervision of the principal departments of government imposed on the Chief Executive by the 394'? Constitution and to direct the manner of its performance in the administration of collective negotiations with all state employees.

The question is: Who is the employer in relation to plaintiff? Is it the Board of Higher Education within the meaning of the act, or is the Governor, as the Chief Executive of the State? In reading the definition of “employer” set out in N. J. S. A. 34:13A — 3, supra, it is clear that the term shall include “public employer” and shall mean the State of New Jersey.

The Board of Higher Education is a principal department within the Executive Branch of the government. This court takes judicial notice that the custom and practice in industry and other business organizations is that a department or department head within an organization is not an employer. The organization itself is the employer. It is true that under the provisions of N. J. S. A. 34:33A-3(c) a school district is designated as a public employer. It is also true that under this statute the Board of Higher Education is not designated as a public employer. Apparently the intention of the Legislature in designating a school district as such is due to the fact that a school district is a legal entity separate and apart from the county or municipality where it is located. The Board of Higher Education is not a legal entity, but rather one of the principal departments of the Executive Branch of State Government. Furthermore, as stated in Art. Y, Seo. I, par. 1, of the 1947 Constitution, supra, each principal department shall be under the supervision of the Governor, so it is evident that the Governor is the public employer of all public employees in any of the principal departments of the Executive Branch of State Government that are under his supervision.

During the 1930’s and 1940’s the number of departments, bureaus, commissions, boards and agencies within the State Government grew to a point where they totaled almost one hundred. Jacobs “Administrative Agencies, Their Status and Powers”, 2 Proceedings of the 191f7 Constitutional Convention, at 1431-1434. The autonomous or semi-autonomous nature of many of these bodies led then Governor Driscoll to comment in an address before the Newark Kiwanis Club on May lo, 1947, which address was incorporated in the minutes of the proceedings of the Constitutional Convention:

Being of the executive branch, I reminded my listeners of the fact that the Governor in this State, a rumor to the contrary notwithstanding, is not the sole Chief Executive of the State. He is just one of the chief executives of the State, because there are many heads of departments, appointed by boards, councils and former Governors, who exercised authority during the Governor’s term, and frequently exercised it entirely apart from the authority exercised by the Governor. I say this not in criticism of the men with whom I am presently associated — merely in criticism of an antiquated system that, instead of providing for a centralized, and responsible authority, provides for divided responsibility and divided authority. [Milmed, “State Administrative Organization and Reorganization," 2 Proceedings of the 191ft Constitutional Convention, at 1448; emphasis added]

The minutes of the Constitutional Convention reveal the avowed purpose of the framers to coordinate overall executive control of the principal departments of State Government in the Governor, subject to the power of the Legislature to allocate functions and duties among these departments. Professor George Graham of Princeton University testified before the Committee on the Executive, Militia, etc.:

Paragraph 2 of Section IV, the provision that each principal department shall be under the supervision and control of the Governor, seems to me to be sound. If you bear in mind that the legislative body always has the power to specify what are to be the duties of the executive departments and key officials in those departments, there is no serious problem, raised if the Governor should try to control the discretion of subordinates in individual cases. [5, Proceedings of the Constitutional Convention of 1947, at 387. emphasis added]

Similar statements were made to the Convention by former Governors of the State and other authorities on constitutional government.

For this court to direct the Association to negotiate with the Board of Higher Education would seriously undercut this constitutional prerogative of the Governor over State Government. The issue posed herein involves the constitutional commitment of internal supervision by the Chief Executive and, in the absence of legislation, involves an initial policy determination of a kind clearly for nonjudieial discretion.

The initial policy determination to restrict the scope of authority of the various executive departments and to centralize administration and control in the office of the Governor for purposes of collective negotiations among state employees is supported by the reason and spirit of L. 1968, c. 303. A written collective negotiations agreement is a commitment on the part of a public employer to implement and effectuate the terms and conditions of employment in conformity with its terms. N. J. S. A. 34:13A-5.3. The “public employer” is charged with the responsibility of effectively negotiating a meaningful agreement. In this regard, the ultimate responsibility is imposed on the Governor for the executive administration of the State Government.

N. J. S. A. 18A:64-6(g) provides, in pertinent part, that the board of trustees of a state college may

* * * [a'jppoint a treasurer and suck deans and other professional members of the academic, administrative and teaching staffs as shall be required and fix their compensation and terms of employment in accordance with salary ranges and policies adopted by the board of higher education and concurred in T>y the Governor which salary-policies shall prescribe qualifications for the various classifications * * *. [emphasis added]

N. J. S. A. 52:27B-14 provides:

On or before October first in each year each department of the State Government, board, commission, officer or other State agency, hereinafter in this article called “spending agency,” shall file with the commissioner a request for appropriation or permission to spend, as the case may he, which shall specify all expenditures proposed to be made by such spending agency during the next ensuing fiscal year. [L. 1944, c. 112, art. 3, § 5]

N. J. S. A. 52:27B — 19 provides :

On or before December thirty-first of each year, or at such other time or times as the Governor may request, the commissioner shall certify and transmit to the Governor and Governor-elect the requests of the spending agencies, together with his findings, comments and recommendations thereon.

N. J. S. A. 52:27B-20 provides, in pertinent part:

The Governor shall examine and consider all requests for appropriations, together with the findings and recommendations of the commissioner, and shall formulate his budget recommendations which shall be transmitted to the Legislature as a budget message on or before the third Tuesday following the first meeting of the Legislature in each year, except a year in which a Governor shall be inaugurated, when he shall do so on or before February fifteenth following the commencement of his term. [Emphasis added]

L. 1970, c. 96, provides in part that no salary range or rate of pay shall be increased or salary adjustment paid in any higher education institution without the prior approval of the President of the Civil Service Commission, the State Treasurer, the Director of the Division of Budget and Accounting, and the Legislative Budget and Finance Director.

Therefore it is consistent with the statutory procedure set out above and with constitutional responsibility for a balanced budget that the Governor and his representatives shall formulate the complete economic program for the State Government, including the Board of Higher Education. The offieel of the Governor is, therefore, the appropriate agency of the State to supervise the conduct of negotiations with units of state employees and to intercede and supersede the departments in collective negotiations on the substantial terms and conditions of employment.

Furthermore, L. 1968, c. 303 (N. J. S. A. 34:13A-3(e)) states, in effect, that the term “representative” shall include, inter alia, any organization, agency or person authorized or designated by a public employer to act on its behalf and represent it to them. Therefore, it would seem that before the impasse, the Board of Higher Education, one of the principal departments, was acting as the representative of the Governor, and during the latter part of the negotiations Frank Mason was also acting as the representative of the Governor.

In Civil Service Employees Ass’n. v. Helsby, 21 N. Y. 2d 541, 289 N. Y. S. 2d 203, 236 N. E. 2d 481 (Ct. App. 1968), the issue posed concerned whether the New York Public Employment Belations Board could direct the state negotiating committee designated and acting for the Governor to desist from negotiating with state employees on an exclusive basis and to remain neutral in its treatment of employee organizations. The negotiating committee determined it would negotiate with three units of state employees pending a determination by the Public Employment Belations Board. The Court of Appeals recognized the primacy of the Governor in the implementation of a law concerning collective negotiations and held that the Public Employment Belations Board had no authority to restrain the Governor’s negotiating committee. The court further indicated that the Public Employment Belations Board could not interfere with the executive process under the New York statute concerning collective negotiations.

It is therefore the opinion of this court that the motion for summary judgment commanding defendant Board of Higher Education to negotiate with plaintiff should be denied. It is also the opinion of this court that summary judgment should be entered in favor of defendants.

II

Plaintiff contends that Executive Order No. 3, dated April 2, 1970, which set up the Governor’s Employee Relations Policy Council, is unconstitutional, illegal and void. This Council consists of the State Treasurer, the Secretary of State, the President of the Civil Service Commission, the Comptroller and Director of the Division of the Budget and AccQunting in the Department of Treasury, the Counsel to the Governor, and the Director of the Office of Employee Relations, all of whom serve without compensation. The purpose of the Council is to make recommendations to the Governor concerning employee relations and to render such reports to him as the Council determines or he directs.

Plaintiff further contends that Executive Order No. 4, also dated April 2, 1970, which creates an Office of Employee Relations in the office of the Governor, is likewise unconstitutional, illegal and void. The Office of Employee Relations consists of a Director and Deputy Director to assist the Council in all matters regarding relations between the State and its employees, and to act as the Governor’s agent in conducting collective negotiations with employee organizations. The Director makes recommendations and reports to the Council concerning employee relations.

Plaintiff further contends that since Prank Mason was appointed Deputy Director under Executive Order No. 4, he, as an observer and agent of the Governor, has interfered with the negotiations between plaintiff and the Board of Higher Education, and that such interference' constitutes an illegal usurpation of power and an illegal and unwarranted interference into higher education matters by the Executive, contrary to L. 1968, c. 303.

Plaintiff states that Executive Orders 3 and 4 violate Art. Y, sec. TV', par. 1, supra, which provides, in effect, that all executive and administrative offices, departments and instrumentalities of the State Government, etc., and their respective functions, powers and duties shall be allocated by law among and within not more than 20 principal departments, in such manner as to group the same according to major purposes as far as practicable, and which also provides that temporary commissions for special purposes may be established by law and need not be allocated within a principal department.

It is the argument of plaintiff that Executive Orders 3 and 4 should have been adopted by law according to the above provisions — and not by Executive Order.

It must be remembered that these Executive Orders do not create a new principal department, neither do they result in the creation of a temporary commission for a special purpose not allocated within a principal department.

A reading of Executive Orders 3 and 4 reveals very clearly that they set out duties and functions to implement the various duties and functions of the principal departments of the Executive Branch which have been allocated by law- — • according to major purposes so far as practicable. Furthermore. the Council and the Office of Employee Belations have power and authority to recommend only. More particularly, a reading of the contents of these Executive Orders reveals that they implement the provisions of L. 1968, c. 303, supra.

The Office of Employee Belations and its Deputy Director are duly constituted in the Executive Branch of the State Government in accordance with the authority bestowed by the 1941 Constitution. The interposition of the Deputy Director, based on such authority on behalf of the Governor, in the conduct of collective negotiations and in a fact-finding hearing before the Public Employment Belations Commission is thus fully justified by the constitutional power of the Governor to superintend the executive administration of government in collective negotiations among diverse groups of state employees.

Original negotiations were conducted between plaintiff and defendant Board of Higher Education. These were negotiations between a department and plaintiff. However, the Board was' unable to set salary benefits as provided in N. J. 8. A. 18A:3-14(h) because of the impasse. It was then necessary to apply the provisions of L. 1968, c. 303, and when the impasse continued, the other statutory provisions. However, despite this the final budget to be submitted to the Legislature had to be recommended and concurred in by the Governor.

L. 1968, c. 303, § 8(b), provides in effect that in the event of a failure to resolve an impasse by mediation, the Division of Public Employment Relations is empowered to recommend or invoke fact-finding, with recommendations for settlement, the cost of which shall be borne by the parties equally. This is consistent with the recommendations of the legislative commission which preceded the enactment of L. 1968, c. 303, which recommended legislation “governing personnel matters in public employment at all government levels in New Jersey.”

If, as plaintiff contends, they should be permitted to continue negotiations with the Board of Higher Education, the impasse might continue indefinitely. It is in the public interest that this matter be resolved because the State has the responsibility to provide for the financial support necessary to the continuation of the state college program, and such colleges shall be maintained for the purpose of providing higher education in the liberal arts and sciences and various professional areas, including the science of education and the art of teaching, at such places as may be provided by law. N. J. S. A. 18A:64-1 and N. J. S. A. 18A:64C-1.

The presence of Prank Mason at the negotiations as the agent of the Governor was a necessary step to avoid an indefinite continuation of the impasse, for the 1947 Constitution provides that each principal department shall be under the supervision of the Governor, and supervision means the act of overseeing, or inspecting with authority, or superintending. See Black’s Law Dictionary (3d ed.), at 1681.

There seems to be a void in the statute (L. 1968, c. 303) as to what may or must occur after the fact-finder submits a report. In Lullo v. International Ass’n of Fire Fighters, supra, 55 N. J. 409 (1970), the court, in upholding the constitutionality of L. 1968, c. 303 (N. J. S. A. 34:13A-1 et seq.), stated that the statute is novel legislation for New Jersey and that the commission established to administer it is working on unploughed ground. The court further stated that it is expected that many problems, both administrative and substantive, will confront the commission in due course.

However, N. J. S. A. 18A-.3-13, supra, provides, in part, that within the limitations imposed by general legislation applicable to all agencies of the State and the provisions of this chapter, the Board is hereby granted exclusive jurisdiction over higher education in the State, etc. This would seem to limit the exclusive jurisdiction of the Board.

In N. J. S. A. 34:13A-2, supra, the policy of the Legislature was declared to be the prevention or prompt settlement of labor disputes —■ in the public sectors •— and that this was for the best interests of the people of the State. And the same statute provided for the voluntary mediation of public employer-employee disputes under the guidance and 'Supervision of a governmental agency, to promote permanent public-employee peace and the health, welfare, comfort and safety of the people of the State.

N. J. S. A. 18A:64-6(g), supra, provides for salary ranges and policies adopted by the Board of Higher Education and concurred in by the Governor. The word “concurrence,” as used in the statute, means concurrence of opinion, agreement, meeting of minds; consent; approbation and approval. See 8 Words and Phrases (perm, ed.), at p- 588.

N. J. S. A. 52:27B-19 provides that the Commission shall transmit to the Governor and Governor-elect the requests of the spending agencies, etc., and N. J. 8. A. 52:27B-20 states that the Governor shall examine and consider all requests for appropriations * * * and shall formulate his budget recommendations, which shall be transmitted to the Legislature.

Thus, it is apparent from reading these statutes that all requests for appropriations, including the requests of defendant Board of Higher Education, must be subject to the limitations imposed by general legislation applicable to all agencies in the State; that the prompt settlement of labor disputes, under the guidance and supervision of a governmental agency, is for the best interests of the people of the State; that salary ranges and policies adopted by the Board of Higher Education must be concurred in by the Governor, and that the Governor shall examine and consider all requests for appropriations and formulate his budget recommendations which shall he transmitted to the Legislature.

Statutes constituting a system should be so construed as to make that system consistent in its parts and uniform in its operation. Where statutes are part of a general system relating to the same class of subjects and rest upon the same or similar reasons, they should be construed, if possible, so as to be uniform in their application and in the results which they accomplish; and statutes upon cognate subjects may be referred to although they are not strictly in pari materia. 2 Sutherland, Statutory Construction (2d ed.), § 443, at 847-848; Modern Industrial Bank v. Taub, 134 N. J. L. 260 (E. & A. 1946). This court must further take note of the fact that, wherever possible, statutes dealing with the same general subject will be recognized and harmonized. See Loboda v. Clark Tp., 40 N. J. 424 (1963).

Thus, it is very evident that as a result of the statutory scheme set out above, and also the constitutional provisions enumerated supra, that the Governor controls the request for expenditures of the Executive Branch of the State Government and, as a result, has an obligation to attempt to settle labor disputes within that branch which result from an impasse.

In summary, it is the opinion of this court that the motion to declare unconstitutional, illegal and void Executive Orders 3 and 4 should be denied. The motion to enjoin defendant Frank Mason from negotiations with plaintiff Association should also be denied. It is the further opinion of this court that in view of the reasons set out above, the activities of Frank Mason did not constitute unwarranted interference or an illegal usurpation of power into higher educational matters.

Judgment shall be entered in favor of defendants on these issues.

Ill

Plaintiff argues that the conduct of defendant Board of Higher Education in refusing to meet and negotiate further with plaintiff since May 6, 1970 is an obvious violation of Art. 1, par. 19 of the 1947 Constitution, which provides as follows:

* * * Persons in public employment shall have the right to organize, present to and make known to the State, or any of its political subdivisions or agencies, their grievances and proposals thruogh representatives of their own choosing.

However, this procedure was followed during the negotiations between plaintiff and the Board from July 19, 1969 to the time plaintiff declared an impasse on February 18, 1970. This procedure was also followed during the mediation sessions between February 20 and May 6, 1970 when the mediator determined that he was unable to resolve the impasse, and it apparently was also followed after the appointment of a fact-finder who conducted hearings on May 26 and 27, 1970.

But plaintiff also contends that L. 1970, c. 96, which was approved on June 16, 1970, is unconstitutional for improperly delegating a legislative function to state administrative officers without setting up adequate standards to guide the administration thereof.

The statute provides that no salary range or rate of pay shall be increased, or salary adjustments paid, in any state department, agency, commission or higher education institution without the prior approval of the President of the Civil Service Commission, the State Treasurer, the Director of the' Division of the Budget and Accounting, and Finance Director. The statute also provides that any sums appropriated to the several departments for salaries may be made available for salary adjustments therein arising from various exigencies of the state service and for normal merit salary increments, as the President of the Civil Service Commission, the State Treasurer, the Director of the Division of Budget and Accounting, and the Legislative Budget .and Finance Director shall determine.

Plaintiff states, in effect, that this statute gives these state officers unbridled discretion in determining salary ranges and rates of pay, salary adjustments and normal merit salary increments, without setting up standards to guide them in the exercise of their discretion; that these officers have been delegated authority by the' Legislature to place state employees, including members of plaintiff Association on salary schedules and rates subject to rules and regulations which the aforesaid state officers are to establish, based insofar as practicable upon the recommendations in the report to the Governor and the Legislature pursuant to L. 1968, c. 304 (the Hay Associates Eeport).

The said statute provides as follows:

AN ACT authorizing management consultant contracts for studies of State employment conditions, and making an appropriation.
BE IT ENACTED by the Senate and General Assembly of the State of New Jersey:
Annual contracts for studies of State employment.
1. The Director of the Division of Budget and Accounting in the Department of the Treasury with the approval of the President of the Senate and Speaker of the General Assembly is authorized to enter into annual contracts on behalf of the State with a recognized management consulting firm of its selection to prepare, and from time to time revise, a thorough study of wages, salaries, benefits, work productivity and working conditions of State employees and comparison thereof with comparable private employment, with the ends in view of providing the Governor and the Legislature with standards and guidelines for use in the preparation of annual budgets and appropriation acts for the support of the State Government that will permit fair treatment of State employees and permit the State to gain and maintain a competitive position in its recruitment and retention of employees.
2. There is appropriated to the Division of Budget and Accounting, Department of the Treasury for the purpose of this act the sum of $100,000.00.
3. This act shall take effect immediately. [Emphasis added]

The proper delegation of legislative power to administrative agencies within the Executive Department is not an infringement of the 1947 New Jersey Constitution, Art. III. The Legislature cannot delegate all its power, Schechter Poultry Corp. v. United States, 295 U. S. 495, 529, 530, 55 S. Ct. 837, 79 L. Ed. 1570 (1935), and in delegating segments of its power it must set up adequate rational standards to guide the administrative body to whom it is entrusting the exercise of such delegated power. This must be done in considering any delegation of legislative power. State v. Traffic Telephone Workers, 2 N. J. 335 (1949).

However, L. 1968, c. 304, provides that the Director of the Division of Budget and Accounting is authorized to enter into a contract with a management consulting firm with an end in view of providing the Governor and Legislature with standards and guidelines for use in the preparation of annual budgets. L. 1970, c. 96, provides that the placement of a State employee at any step or rate shall be subject to rules and regulations to be established by the President of the Civil Service Commission, the State Treasurer, the Director of the Division of Budget and Accounting, and the Legislative Budget and Finance Director, based on the recommendations in the Hay Report to the Governor and the Legislature.

Hence, the rules and regulations based on the recommendations of the Hay Associates Report represent a valid and necessary means for the implementation of the provisions set forth in the act. As the court said in Cammarata v. Essex County Park Comm’n, 26 N. J. 404 (1958) :

It is settled beyond controversy that the Legislature may enact statutes setting forth in broad design its intended aims, leaving the detailed implementation of the policy thus expressed to an administrative agency. See Lane v. Holderman, 23 N. J. 304, at pages 319—320 (1957), and the cases and statutes cited and discussed therein. Indeed, the function of promulgating administrative rules and regulations lies at the very heart of the administrative process. Through the entrustment of such powers, our lawmakers achieve expert and flexible control in areas where the diversity of circumstances and situations to be encountered forbids the enactment of legislation anticipating every possible problem which may arise and providing for its solution, [at 410]

It is not necessary for the Legislature to supply defendants with a set of specific detailed standards for their guidance. There is no unconstitutional delegation of legislative authority as long as the administrative discretion is hemmed in by standards sufficiently definitive to guide its exercise. 1 Sutherland, Statutory Construction (3d ed. 1943), c. 314. The courts have recognized that the exigencies of modern government have increasingly dictated the use of general rather than minutely detailed standards to effectuate the legislative purpose. In Ward v. Scott, 11 N. J. 117 (1952), the court stated as follows:

It is settled that the Legislature may not vest unbridled or arbitrary power in the administrative agency but must furnish a reasonably adequate standard to guide it. N. J. Bell Tel. Co. v. Communications Workers, etc., 5 N. J. 354, 370 (1950) ; State v. Wheeler Auto Driving School, Inc., 17 N. J. Super. 488, 495 (App. Div. 1952). But the exigencies of modern government have increasingly dictated the use of general rather than minutely detailed standards in regulatory enactments under the police power. Thus, the Board of Public Utility Commissioners has been guided by simple standards of “public convenience and necessity” (R. S. 48:11-1) and “just and reasonable” R. S. 48:2-21. See Fornarotto v. Board of Public Utility Commissioners, 105 N. J. L. 28, 32 (Sup. Ct. 1928). The Commissioner of Alcoholic Beverage Control, with authority to fix prices and promulgate regulations (Gaine v. Burnett, 122 N. J. L. 39 (Sup. Ct. 1939), affirmed 123 N. J. L. 317 (E. & A. 1939)), has been guided by the general legislative pronouncement that the statute shall be administered in “such a manner as to promote temperance and eliminate the racketeer and bootlegger.” R. S. 33 :l-3, 39. And the Director of the Milk Control Board has been authorized to take such measures including the fixing of prices and the promulgation of regulations as may be “necessary to control or prevent unfair, unjust, destructive or demoralizing practices which are likely to result in the demoralization of agricultural interests in this State, engaged in the production of milk or interfere with the maintenance of a fresh, wholesome supply of sanitary milk for the consumers of this State.” See R. S. 4:12A-21; State Board of Milk Control v. Newark Milk Co., 118 N. J. Eq. 504, 521 (E. & A. 1935) ; Como Farms, Inc. v. Foran, 6 N. J. Super. 306, 312 (App Div. 1950). See also Veix v. Seneca B. & L. Assn., 126 A. J. L. 314, 323 (E. & A. 1941) ; Borough of Little Ferry v. Bergen County Sewer Authority, 9 N. J. 536, 544 (1952). [at 123-124]

See also Wes Outdoor Advertising Company v. Goldberg, 55 N. J. 347, 352 (1970); Elizabeth Federal S. & L. Ass’n, v. Howell, 30 N. J. 190 (1959); Burton v. Sills, 53 N. J. 86 (1968). In this regard, defendants have been authorized to adopt rules and regulations based on the recommendations in the Hay Report. L. 1970, c. 96. With the aforementioned in mind, the Legislature has consciously left to defendants the power it now seeks to exercise, guided by the standards and guidelines set out in the Hay Associates Report.

In determining whether adequate standards for exercise of powers delegated by statute to administrative officers are provided by a statute, this court is not confined to a particular section delegating such powers, but must examine the entire act in light of its surroundings and objectives, and such standards need not be stated in express terms if they may be reasonably inferred from the statutory scheme as a whole. In re Berardi, 23 N. J. 485 (1957).

Plaintiff’s motion for a declaratory judgment declaring L. 1970, c. 96, unconstitutional because of lack of standards is therefore denied, and for the reasons set out above judgment will be entered in favor of defendants.

Plaintiff contends that pursuant to L. 1970, c. 96, defendants President of the Civil Service Commission, the State Treasurer, the Director of the Division of Budget and Accounting, and the Legislative Budget and Finance Director have placed its members on salary levels and at rates pursuant to the rules and regulations established by said defendants in accordance with the recommendations in the Hay Report. The members have thus been treated differently as public employees than have other public employees who work for counties, municipalities, school districts and other public boards, authorities and agencies. Plaintiff urges that this treatment of its members denies them the equal protection of the law, as guaranteed by the Fourteenth Amendment of the United States Constitution.

The Fourteenth Amendment, section 1 provides, inter alia:

No State shall make or enforce any law which shall * * * deny to any person within its jurisdiction the equal protection of the-laws.

Plaintiff states that L. 1968, c. 303 (N. J. S. A. 34:13A-1 et seq.) treats of one class of public employment and defines all such employees as “public employees.” The United States Constitution requires that the State treat all persons in that class of public employees in a like or similar manner. Robson v. Rodriguez, 26 N. J. 517 (1958).

Plaintiff also cites Washington National Ins. Co. v. Board of Review, 1 N. J. 545, 553 (1949). However, that case holds that the Fourteenth Amendment forbids class legislation and arbitrary discrimination against some and favoring others in like circumstances, and that the equal protection of the laws means that no person or class of persons shall be denied the protection of the laws enjoyed by other persons under similar conditions and circumstances.

However, in the present case plaintiff’s members are not in the same classification; they are public employees of the State. Nor are they considered to be operating under similar conditions and circumstances as those public employees who work for counties, municipalities, school districts and other public boards, authorities and agencies.

Plaintiff' operates under different statutes than the others: its members are employed at a higher and different level of government; they are employed by different public employers; they operate under different salary guides and ranges; they are protected by different tenure statutes, and they are compensated by different public employers. Thus, L. 1970, c. 96, does not create class legislation. The classification is based on material and substantial distinctions and differences reasonably related to the subject matter. The statute does, however, create uniformity within the class represented by plaintiff.

Therefore, it is evident that L. 1970, c. 96, does not violate the Equal Protection Clause of the Fourteenth Amendment. It must be remembered that our courts do not sit as a super-legislature and will accept the legislative judgment as to the wisdom of a statute, and will honor the presumption of constitutionality which attends all legislation. See Burton v. Sills, 53 N. J. 86, 95 (1968).

Plaintiff's motion for a judgment declaring the said statute unconstitutional as violating the Equal Protection Clause is denied.

For the reasons set out above, a judgment will be entered in favor of defendants.

IV

The implementation of the recommendations of the Hay Associates Eeport by defendants in accordance with L. 1968, c. 304, and L. 1970, c. 96, in the instant situation does not interfere with the conduct of good-faith collective negotiations within the meaning of the Employer-Employee Relations Act, N. J. S. A. 34:13A-5.3.

As stated supra, on July 15, 1969 the Public Employment Relations Commission issued a certification of the Association as the exclusive negotiating representative of the faculties in the state colleges. Negotiations commenced with plaintiff on July 19, 1969. On February 18, 1970 plaintiff unilaterally declared an impasse in negotiations and a mediator was appointed by tbe Public Employment Relations Commission. The mediator was unable to resolve the: impasse in negotiations, resulting in the appointment of a fact-finder on May 15, 1970, and the holding of hearings on May 26 and 27, 1970. On July 1, 1970 the recommendations of the Hay Associates Report were implemented by reason of L. 1970, c. 96, by placing the majority of the members of plaintiff on various salary scales and ranges. College administrators have been placed on appropriate salary scales and ranges commencing as of September 1, 1970. The six state colleges recently began operations for the school term 1970-71.

The issue posed by the implementation of the Hay Associates’ recommendations as respects members of plaintiff Association during the pendency of a collective negotiating relationship is whether the unilateral act of the State in this instance has violated commonly recognized fair collective bargaining standards.

It is generally recognized that under certain circumstances in public employment a public employer is free to impose his own salary program on employees, subject to collective negotiations. The usual defense to unilateral action on the part of a public employer is an impasse in negotiations. This is especially true where there is a constitutional or legislative mandate for the public employment to commence or continue.

In Fair Lawn Education Ass'n v. Fair Lawn Board of Education (Docket No. L-30039-69 P. W., June 3, 1970), the court held that a teacher bargaining deadlock frees a board of education to impose its own salary scales and working conditions. In that case an action was brought to compel the board of education to show cause why it should not be restrained from sending contracts to nontenure teachers despite the pendency of collective negotiations. In addition, plaintiff sought an injunction to enjoin the board from ■unilaterally setting the salary schedules for teachers. The court pointed to major areas of disagreement between the parties following lengthy negotiations, mediation and fact-finding by the Public Employment Kelations Commission. On May 21, 1970, after negotiations had been in progress since October 1969, the Board passed a salary schedule for all teachers and mailed contracts to all nontenure teachers. The court, in rejecting the argument that the board’s action was not lawful under the Employer-Employee Relations Act, N. J. S. A. 34:13A-1 et seqbecause it substituted unilateral action for collective negotiations, pointed out that the board was carrying out state law as set out in the 1947 New Jersey Const., Art. VIII, Sec. IV, par. 1, which provides that the Legislature shall provide for the maintenance and support of a thorough and efficient system of free public schools for the instruction of all children in the State between the ages of 5 and 18 years. Judge Trautwein stated, in part:

I find in the instant case that while I cannot conclude that either party has been bargaining in bad faith, there exists not only the possibility, but the temptation, that if negotiations continue to drag on until they approach the commencement of the new school year, there possibly could be, as X have said, some bad faith bargaining ❖ :!« #
X find that while the decision of the board to mail out contracts in the form they did suggests less than full compliance with the spirit of ehapter 303, Laws of 1968 and particularly Title 34:13A-5.3, there is no alternative but to permit such an action under certain conditions * * *.
But if I grant plaintiff’s prayer for a restraint, I believe I am lending the weight of the law to what I seriously believe can be an obstruction of the mandate to the Board of Education to provide a free public school system in Fair Lawn in September.

This decision is in accord with the ruling in Board of Education of Union Beach v. N. J. E. A., 53 N. J. 29 (1968), in which the court held that where government itself undertakes to meet a need, it necessarily decides that the public interest requires the service.

In the instant situation there have been sincere and lengthy collective negotiations since July 19, 1969. As of this date there has been no resolution of the existing impasse between the parties, in spite of the procedures invoked before the Public Employment Relations Commission. Defendants, mindful of the legislative mandate in L. 1968, c. 304, that a study be conducted to enable the State to maintain a competitive position in the recruitment and retention of employees, and in N. J. S. A. 18A:6A-1 that a state college system be maintained for the purpose of providing higher education in September to the citizens of this State, may resort to unilateral imposition of salary ranges, under the circumstances at bar, to insure that this governmental purpose is effectively implemented. Eor all these reasons, the placement of members of the Association on salary ranges in accordance with the recommendations of the Hay Associates Report, under this set of circumstances, does not subvert good-faith collective negotiations within the meaning and spirit of the Employer-Employee Relations Act. Eurthermore, aggrieved state employees may appeal to a Hay Appeals Review Board from salary ranges assigned to their class titles with further review by the Civil Service Commission.

Plaintiff’s motion for summary judgment to enjoin the implementation of this report is hereby denied. Eor the reasons set out above, judgment will be entered in favor of defendants.

Plaintiff has also attacked the fact-finding report as void, based on inadequacies. At oral argument it stated that this was a minor issue. However, whether this report is adequate or inadequate is a question of fact to be determined by the proper administrative agency.