text:
    NORMAN N. SCHIFF, PLAINTIFF-RESPONDENT, v. CLAIRE SCHIFF, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued October 19, 1971
    Decided October 28, 1971.

      Before Judges Kilkenny, Labkecque and Lane.

      Mr. Joseph Schoenholz argued the cause for appellant.

      Mr. Irving N. Yankowitz argued the cause for respondent (Messrs. Yankowitz & Tessler, Attorneys; Mr. Yankowitz, of counsel; Mr. Norman N. Schiff, of counsel and on the brief).
   The opinion of the court was delivered by

Lane, J. A. D.

Upon leave granted defendant appeals from three interlocutory orders: (1) an order dated March 18, 1971 denying her application for an order compelling plaintiff to restore support payments called for under a written agreement which he had arbitrarily reduced and to compel plaintiff to pay certain medical bills; (2) an order dated April 1, 1971 denying defendant’s motion for summary judgment under the written agreement for payments in excess of the basic amount provided for which payments were to be made when plaintiff’s “calendar year gross income” was in excess of certain figures, and (3) an order dated April 19, 1971 denying a motion of defendant for judgment for arrears in payments called for under the separation agreement which had accrued between January 8, 1971 and April 8, 1971.

A detailed statement of the facts is necessary for an understanding of the issues. The parties were married August 3, 1952. There is one child who is 11 years old at the present time. An agreement was executed between the parties on February 9, 1965 into which was incorporated a supplemental written agreement executed a short time thereafter.

The February 9, 1965 agreement was executed “to settle their property rights, and to agree upon provisions for custody of the child, and for the support, care, maintenance and education of said child and for the separate support of the wife.” Under the agreement the plaintiff was to pay $190 a week for the support of the wife and $35 a week support for the child. Provision was made for additional support:

• * * the husband agrees, if Ms earnings substantially increase in the future, and while his obligation to support the wife still persists, that if his calendar year gross income, as evidenced by his income tax returns, shall be in excess of $50,000.00 and under $100,000.00 a year, he will pay her additional periodic support as follows: a. Between $50,000.00 and under
$60,000.00 gross income $1,000.00
b. Between $60,000.00 and under
$70,000.00 gross income 2,000.00
c. Between $70,000.00 and under
$80,000.00 gross income 3,000.00
d. Between $80,000.00 and under
$90,000.00 gross income 4,000.00
e. Between $90,000.00 and under
$100,000.00 gross income 5,000.00

Other relevant portions of the agreement were:

5. These support payments shall be due and payable by husband to wife but shall cease to be an obligation of husband (1) should the wife, in the event of a divorce between the parties, remarry; (2) should the husband die; or (3) should the wife die; whichever of the foregoing events first occurs.
* sjs * * *
24. The parties respectively acknowledge that each has had independent legal advice by counsel of his or her own selection; that each fully understands the facts and has been fully informed as to his or her legal rights and obligations ; and that having had such advice, and with such knowledge, each of them is signing the agreement freely and voluntarily.

Under the supplemental agreement plaintiff agreed to pay the federal and state income taxes for each year for the wife; the annual cost of Blue Cross-Blue Shield and major medical insurance coverage for her; gas, oil and general maintenance on any automobile owned by her, excluding major repairs; annual liability and collision insurance coverage on any motor vehicle owned by her; any annual water bills at 63 Yassar Avenue, Newark, as long as she lived there; and the amount of any mortgage payment exceeding $2,424 a year.

Eollowing the execution of the agreement, defendant instituted suit in the Second Judicial Court of the State of Nevada which resulted in a decree of absolute divorce on September 9, 1965. The decree ratified, approved and adopted the agreement.

Plaintiff has remarried.

On September 8, 1970 plaintiff filed a verified complaint alleging the marital history and claiming he had sustained a heart attack in July 1968 and that as a result of his present condition and “other untoward circumstances” he had been required to reduce his work activity (attorney at law) and “has therefore presently sustained a consequential loss of income.” The first count of the complaint sought a judgment reducing plaintiff’s obligations under the agreements. The second count sought a declaration of the meaning of paragraph 4 of the agreement, the escalation clause.

On February 5, 1971 defendant filed an answer and counterclaim. The delay in filing the answer and counterclaim was apparently caused first by her attorney waiting to be supplied with a copy of plaintiff’s 1963 income tax return upon which the agreement was allegedly based, and upon the further fact that defendant suffered a serious accident as a result of which for a period of time she could not have any visitors.

The first count of the counterclaim alleged a default under the agreement in the amount of $1,683.05 for various miscellaneous items. The second count sought $1,655 for schooling for the child. The third count sought increased support alleging that at the time of the agreement defendant did not know plaintiff’s true income and that living costs had increased because of the increased age of the child. The fourth count sought a judgment for $15,000 which defendant claimed she was entitled to under the escalation clause of the agreement. The fifth count sought an order to compel plaintiff to implement by testamentary disposition an oral agreement between the parties that should both parties die while the child was a minor, defendant’s sister would be given custody and appointed guardian. The sixth count prayed for an order compelling plaintiff to establish an educational fund for the child. The seventh count sought an order compelling plaintiff to post security.

There was submitted with the counterclaim defendant’s affidavit showing that on January 8, 1971 plaintiff had suddenly and without warning reduced the $225 primary support figure to $112.50. The affidavit further showed that in 1969 plaintiff’s income was $99,889; and in 1968, $80,621. It was alleged that on .May 23, 1969 plaintiff purchased a home in Mendham for $108,000 which he sold May 25, 1970 for $123,000. It was further alleged that on May 25, 1970 he purchased a home in South Orange for $97,500. Defendant said that she was in dire need of the amounts that had been withheld. She further set forth certain medical bills resulting from her accident for which she sought recovery. Based upon the affidavit defendant obtained an order dated Eebruary 5, 1971 directing plaintiff to show cause “why he should not forthwith restore to the defendant the $112.50 a week denied her for the past four and possibly five weeks, and why he should not be required forthwith to pay the medical bills of defendant.”

On the return of the order to show cause there was also before the court an affidavit by the plaintiff. This affidavit dwelt upon the fact that defendant had not listed in her affidavit her costs, assets, cash income, etc. Plaintiff further averred that he and his accountant had projected his income for 1971 at $26,850. He dwelt upon his heart condition. Schedules were attached showing his assets as of December 31, 1970 and his assets as of December 31, 1964. He admitted receiving the following total income and set forth the capital gains portion of that income as follows:

Total Income Capital Gains
1965 $ 56,861 None
1966 61,872 $ 7,171
1967 72,822 26,152
1968 81,001 29,028
1969 100,019 66.641
81,557 1970 (projected) 42,060

A copy of plaintiff’s 1970 income tax return has been submitted -which shows an adjusted gross income of $61,353, of which $29,109 is from the practice of law. Net long-term capital gains were $44,950, of which only 50% is included in the $61,353 figure.

In his affidavit he listed expenses at approximately $24,000 including such items as:

Travel and entertainment $1,000
Medical and drugs 1,500
Domestic helj) 2,000
Clothing 3,000

Defendant submitted a reply affidavit in which she pointed out that the projected 1971 earnings respesented whatever figure plaintiff chose to tell his accountant. She further pointed out that it was highly unlikely that plaintiff’s heart condition would hamper him to any appreciable extent. She related his history from 1953 when he first started taking medication for his heart. He had an attack in 1961 and although advised to cut down on his activities, in fact he did not. In 1968 he had a heart attack but his earnings that year and the following year increased.

The hearing on the order to show cause was held March 3, 1971. By letter dated March 5, 1971 the trial court stated: "On what is before me and on the argument of counsel, 1 will vacate the Order to Show Cause without any action by the Court on either request. I assume that the plaintiff will pay $112.50 per week until he has exhausted his free assets and cash.” As stated above, the order was signed March 18, 1971. On March 23, 1971 defendant served and filed a notice of intention to move for leave to appeal.

Defendant then moved for summary judgment on the fourth count of the counterclaim, supporting her motion with an affidavit showing that for the years 1965 through 1969 payments would be due to her under the escalation clause in the amount of $15,000. Her position was based upon the inclusion of capital gains in plaintiff’s earnings. Plaintiff filed a short answering affidavit stating only that it was never the intention of the parties during the negotiations to include capital gains within the escalation clause. At the conclusion of the hearing on March 26, 1971 the court merely said, “I will deny the notice of motion for the entry of summary judgment, * * An order was signed April 1, 1971. On April 5, 1971 defendant gave notice of intention to move for leave to appeal.

Defendant then moved “for the entry of judgment in favor of defendant and against plaintiff for arrearages in payments under the separation agreement between the parties beginning January 8, 1971 * * This motion was supported by an affidavit showing the reduction from January 8, 1971 of $112.50 a week and claiming that as of the date of the affidavit, March 31, 1971, there was $1,350 due. There was attached to this affidavit a list of her annual living expenses. She pointed out that defendant’s contentions that his law practice had been substantially affected by an indictment pending against him was hardly credible in view of the fact that the indictment was handed down in December of 1969 and his earnings in 1970 were projected at $81,557.

This motion was heard by the court on April 8, 1971. At that time the trial judge set forth findings of fact and conclusions of law on the two prior matters. As to the order to show cause he stated:

There has been a dramatic reduction in income, and it is clear that the plaintiff has been producing assets to support both his present family and the defendant and his daughter. The delay by defendant in filing an answer for over four months and the financial plight of the plaintiff justifies a reduction of support, since this is a significant change of circumstances. See Martindell v. Martindell, 21 N. J. 341 (1956), also, Raymond v. Raymond, 39 [N. J.] Super. 24 (Ch. Div. 1956).

As to the motion for summary judgment he stated:

Plaintiff does not contend that he is no longer obligated to support defendant nor that the agreement between the parties was not just and equitable and voluntarily entered into in February of 1965.
Defendant is seeking summary judgment on Paragraph 4 and contends that: 1. A change in the husband’s present ability to pay has no bearing on his motion, and: 2. That the agreement requires capital gain income to be part of plaintiff’s earnings.
As to the first argument, see Flicker v. Chenitz, 55 N. J. Super. 273, 292 (1960); Welser v. Welser, 54 N. J. Super. 555, at Pages 564 and 565; Schlemm v. Schlemm, 31 N. J. Super. [N. J.] 557, at 581 (1960).

As to the second point raised above, the agreement did not define the word “earnings”. There is a question that the parties intended capital gains to be included in gross income. A question of fact also arises as to the meaning of the phrase, “If his earnings substantially increase in the future.” If I follow defendant’s argument, that is, that earnings and gross income are the same, the phrase would be surplusage. The parties disagree as to whether or not, as a matter of fact, they intended at the time of the making of the agreement to include capital gain income as earnings.

The defendant’s attorney in his letter of March 26, 1971, addressed to the Court stated that the Court denied his request on summary judgment for a $3000 arrearage, allegedly accrued if the agreement is interpreted in plaintiff’s favor, but the affidavit of the plaintiff dated February 25, 1971, denies any arrearages due the defendant. There must be a trial on all of these matters.

The trial court on April 8, 1971 denied the motion for a judgment for the arrears with no reasons. The order denying that motion was signed April 19, 1971. On April 19, 1971 defendant gave notice of intention to move for leave to appeal.

By letter dated April 26, 1971 the trial judge wrote to the attorneys:

The notice of motion returnable April 8, 1971 seeks judgment on arrearages based on the plaintiff’s failure to pay $225 per week since January 8, 1971 in accordance with an agreement dated February 9, 1965 in New Jersey.
The trial court has the discretion to modify the agreement upon a showing of changed circumstances. See: Equitable Life Assurance Society of U. S. v. Huster, 75 N. J. Super. 492 (App. Div. 1962) and Flicker v. Chenitz, 55 N. J. Super. 273 (App. Div. 1959). Plaintiff alleges in his complaint a change of circumstances which may affect his ability to satisfy the agreement.
Therefore, defendant’s request for relief must await trial.

Basically, defendant argues that the trial court erred because it treated the written agreement as though it were an order of the court for alimony and support. She further argues that in fact the trial court granted pendente lite relief to the plaintiff reducing the payments called for, but no sufficient showing had been made by plaintiff to entitle him to such relief. She also argues that the escalation clause was perfectly clear and plaintiff raised no bona fide dispute as to a material fact concerning the meaning of that clause.

I

Agreements between husband and wife executed voluntarily and understandingly for the purpose of settling the issue of support are specifically enforceable to the extent that they are just and equitable. Schlemm v. Schlemm, 31 N. J. 557, 581-582 (1960). In Equitable Life Assur. Soc. of United States v. Huster, 75 N. J. Super. 492, 503-504 (App. Div. 1962), we recounted the changing policy of our courts on this issue. We need not repeat what we said there.

Plaintiff argues that his heart condition and the indictment against him with subsequent loss of business resulted in such a change of circumstances as to compel a modification of the agreement and to provide a sufficient defense against the relief sought in the order to show cause. However, he admits that his heart condition existed before the agreement was executed. In addition, there is no claim that the agreement is unfair or inequitable. Both parties apparently entered into it willingly and knowingly, fully cognizant of its terms and conditions.

The agreement provided for certain future changes of conditions: if the wife should remarry; if the husband should die; if the wife should die; if the husband’s income should increase. Under such conditions the obligations are to cease or increase. Clearly if they had wished to, they could have provided for the conditions plaintiff now argues as justification for a modification.

Earlier decisions in New Jersey have held that financial inability is no defense to a wife’s suit for specific performance of a support agreement. Stern v. Stern, 112 N. J. Eq. 8, 10 (Ch. 1932), aff’d o. b. 113 N. J. Eq. 185 (E. & A. 1933); Moller v. Moller, 121 N. J. Eq. 175, 178 (Ch. 1936); Corrigan v. Corrigan, 115 N. J. Eq. 49, 51 (Ch. 1933); Vandergrift v. Vandergrift, 63 N. J. Eq. 124, 125 (Ch. 1902).

Dicta in some of the recent New Jersey decisions indicates that a showing of a change of circumstances is a sufficient defense to a suit for specific performance and will justify the court modifying the agreement. Berkowitz v. Berkowitz, 55 N. J. 564 (1970); Equitable Life Assur. Soc. of United States v. Huster, supra, 75 N. J. Super. at 512.

In Berkowitz v. Berkowitz, supra, the Court stated:

Agreements between separated spouses executed voluntarily and understandingly for the jjurpose of settling the issue of support for the wife and children are specifically enforceable, but only to the extent that they are just and equitable. Schlemm v. Schlemm, 31 N. J. 557 (1960) (support of wife); Equitable Life Assur. Soc. of United States v. Huster, 75 N. J. Super. 492 (App. Div. 1962) (support of wife and children). Therefore, the trial court has the discretion to modify the agreement upon a showing of changed circumstances. Flicker v. Chenitz, 55 N. J. Super. 273, 292 (App. Div. 1959), certif. granted, 30 N. J. 152, appeal dismissed by consent, 30 N. J. 566 (1959). Modification is similarly proper when the separation agreement is incorporated in the judgment nisi. Schluter v. Schluter, 23 N. J. Super. 409 (App. Div. 1952). However, when the parties and their attorneys have bargained at arm’s length and there is no showing of unfairness, the trial court should not supply terms which the parties obviously considered and yet did not adopt. [55 N. J. at 569]

In referring to the power of the court to modify an agreement “upon a showing of changed circumstances,” it is unlikely that the court meant to reduce the continued binding effect of a fair and just agreement between husband and wife to that of an order for statutory alimony.

Defendant argues that the trial court was in error in applying the law relating to statutory alimony, whereas the court should have applied the law of specific performance of contracts. In Schlemm v. Schlemm, supra, 31 N. J. at 580, the court indicated that while a court of equity can specifically enforce a husband and wife support agreement, it can exexcise “continued supervisory control.” It is not clear, however, whether the court’s “supervisory control” is governed by the rules of specific performance of contracts or by the rules pertaining to the court’s statutory jurisdiction over alimony. It is apparent that Schlemm, v. Schlemm, supra, revived the earlier cases holding that courts of equity could specifically enforce a husband and wife support agreement. Those cases indicate that while the specific performance was conditional, the enforcement should be governed by the law of specific performance relating to contracts. E.g., Buttlar v. Buttlar, 57 N. J. Eq. 645, 655 (E. & A. 1898). See Annotation, “Specific performance, or other equitable enforcement, of agreement for wife’s support or alimony.” 154 A. L. B. 323 (1945), with treatment of New Jersey cases at 338.

The remedy of specific performance is discretionary, resting in equitable principles. The party asking the aid of the court must stand in conscientious relation to his adversary. His conduct in the matter must have been fair, just and equitable, not sharp or aiming at unfair advantage. The relief must not be harsh or oppressive. His claim must be equitable. Stehr v. Sawyer, 40 N. J. 352, 357 (1963). The remedy of specific performance is not an absolute one. It is in large measure discretionary, resting on equitable principles to be applied upon a • consideration of all the circumstances of the particular ease. A judgment granting specific performance need not be unqualified in form. In the exercise of sound judicial discretion it may be granted upon such terms and conditions as justice requires, even to the extent that the performance ordered is not identical with that promised in the agreement. Deptford Tp. v. Woodbury Ter. Sewerage Corp., 54 N. J. 418, 434 (1969); Flicker v. Chenitz, 55 N. J. Super. 273, 292-293 (App. Div. 1959). See 11 Williston, Contracts (3d ed. 1968), § 1425 at 824.

When a contract has been fairly procured and its enforcement will work no injustice or hardship, it is enforced almost as a matter of right. If it has been procured by fraud or falsehood, or its enforcement will be attended with great hardship or manifest injustice, the court will refuse its aid. Al-Sco Realty Co., Inc. v. Suburban Apt. Corp., 138 N. J. Eq. 497, 503 (Ch. 1946), aff’d 141 N. J. Eq. 40 (E. & A. 1947); Plummer v. Keppler, 26 N. J. Eq. 481, 482 (Ch. 1875). A court of equity will not order specific performance of a contract where from a change of circumstances or otherwise it would be unconscionable to enforce it. Johnson v. Hubbell, 10 N. J. Eq. 332, 342 (Ch. 1854). Subsequent events which should have been in contemplation of the parties as possible contingencies when they entered into the contract will not excuse performance. Newark v. North Jersey Dist. Water Supply Comm’n, 106 N. J. Super. 88, 105 (Ch. Div. 1968), aff’d o. b. 54 N. J. 258 (1969).

See 4 Pomeroy’s Equity Jurisprudence (5th ed. 1941), §§ 1400-1410 at 1032; Pomeroy’s Specific Performance of Contracts (3d ed. 1926); 5A Corbin, Contracts (1964), § 1162 at 205; Id., § 1164 at 219; Annotation, “Specific performance of a contract as a matter of right,” 65 A. L. R. 7 (1930).

The showing of “changed circumstances,” Berkowitz v. Berkowitz, supra, 55 N. J. at 569, to warrant the court in modifying an agreement between husband and wife must be such as to convince the court that to enforce the agreement would be unconscionable, the same standard that is applied by courts of equity to the specific enforcement of contracts in other fields. A far greater showing of changed circumstances must be made before the court can modify a separation agreement than need be shown to warrant the court amending an order for alimony or support.

In deciding defendant’s order to show cause, the trial court ruled that as a result of defendant’s, delay in filing an answer and as a result of the “financial plight” of the plaintiff, a reduction of support was justified, since there was a significant change of circumstances. He relied on Martindell v. Martindell, 21 N. J. 341 (1956), and Raymond v. Raymond, 39 N. J. Super. 24 (Ch. Div. 1956). His reliance was in error. Martindell v. Martindell, deals with the court’s statutory jurisdiction to increase alimony under N. J. S. A. 2A:3D-23. The present case deals with the court’s inherent equity jurisdiction to specifically enforce or modify a husband and wife support agreement.

Raymond v. Raymond, supra, deals with a support agreement incorporated into a judgment nisi. The court, relying on Apfelbaum v. Apfelbaum, 111 N. J. Eq. 529 (E. & A. 1932), followed the rule that support agreements will not be specifically enforced if to do so would impair the unlimited statutory jurisdiction and obligation of the court to control the amount of alimony or support. Apfelbaum v. Apfelbaum was overruled by Schlemm v. Schlemm, supra, 31 N. J. at 581.

The trial court erred in determining the order to show cause based on law applicable to statutory alimony.

II

In effect, the action of the trial court in denying the relief sought by the order to show cause was to grant plaintiff a pendente lile reduction of the amount he was compelled to pay under the agreement between the parties. It should be considered in the light of the rules of law governing pendente Hie applications.

Allowance of pendente lite relief has been considered as coming under the inherent jurisdiction of the court arising out of necessity. Affidavits in support of applications for pendente Hie relief must make out a prima facie case. Wheeler v. Wheeler, 48 N. J. Super. 184, 192 (App. Div. 1957). The court looks into the merits of the application as disclosed by the pleadings and affidavits and is thereby guided in the exercise of its discretion. When the bona fides of an application is questionable, preliminary relief will be denied. Suydam v. Suydam, 79 N. J. Eq. 144 (Ch. 1911).

The trial court ruled that the the reduction was justified because of plaintiff’s changed circumstances. The party who seeks modification of an order for alimony or support has the burden of establishing that changed circumstances call for the relief. Boorstein v. Boorstein, 142 N. J. Eq. 135, 136 (E. & A. 1948); Martindell v. Martindell, 21 N. J. 341, 353 (1956); Storch v. Storch, 7 N. J. Super. 97, 99 (App. Div. 1950).

The court found that plaintiff’s proofs showed that the changed circumstances he alleged might affect his ability to satisfy the agreement. Such proof is certainly not enough to support an application for pendente lite relief even in the case of an application to modify an order for support or alimony.

Ill

Both the order to show cause and the motion for judgment for the amount of the arrearages sought relief as to accrued payments under the agreement.

The trial court based its denial of defendant’s motion for arrearages on its power to modify the agreement upon a showing of changed circumstances. Since plaintiff alleged that his changed circumstances might affect his ability to satisfy the agreement, the motion was denied.

Regardless of whether plaintiff could during a plenary hearing show such changed circumstances as to require a modification for the future because enforcement of the agreement would be unconscionable, he has made no such showing in his affidavits. The parties have fixed their rights and obligations by contract. Equitable Life Assur. Soc. of United States v. Huster, supra, 75 N. J. Super. at 512. Plaintiff does not deny that the contract was fair and just.

The court should not have denied defendant’s application for arrearages due as a result of plaintiff’s self-imposed reduction on the basis of the proofs before him. See Schlemm v. Schlemm, supra, 31 N. J. 557, Aspinwall v. Aspinwall, 49 N. J. Eq. 302 (E. & A. 1892); Cohen v. Cohen, 121 N. J. Eq. 299 (Ch. 1936); Moller v. Moller, 121 N. J. Eq. 175 (Ch. 1936); Corrigan v. Corrigan, 115 N. J. Eq. 49 (Ch. 1933); Dennison v. Dennison, 98 N. J. Eq. 230 (Ch. 1925), aff’d 99 N. J. Eq. 883 (E. & A. 1926); Halstead v. Halstead, 74 N. J. Eq. 596 (Ch. 1908); Buttlar v. Buttlar, 71 N. J. Eq. 671 (Ch. 1906); Vandegrift v. Vandegrift, 63 N. J. Eq. 124 (Ch. 1902); Mockridge v. Mockridge, 62 N. J. Eq. 570 (Ch. 1901).

Accrued payments due under the agreement are vested. Genola v. Scharer, 79 N. J. Super. 308 (App. Div. 1963). There is no authority for the court to deprive defendant of her accrued rights under the agreement.

Defendant is entitled to an order compelling plaintiff to pay the arrears caused by the arbitrary reduction of the weekly payments from $225 to $112.50 and compelling him to continue the $225 weekly payments pending the final hearing. At the final hearing the court will be guided by the principles set forth in this opinion. The request for payment of medical bills contained in the order to show cause was properly denied. The decision on this issue depends upon an interpretation of the agreement in the light of all the circumstances including the interpretation placed upon the applicable provision of the agreement by the parties as shown by their conduct.

IY

We are left with the denial by the trial court of defendant’s motion for summary judgment on the fourth count of the counterclaim. In denying that motion the trial court said that there was a question whether the parties intended ■capital gains to be included in gross income and a question of fact as to the meaning of the phrase, “if his earnings substantially increase in the future.” We are unable to see -any question of fact in the interpretation of the escalation ■clause.

The purpose of the agreement was to provide for ■support for the wife and child. There is no indication that that support was to come only from plaintiff’s income from his law practice. It would be ridiculous for plaintiff to argue that he could not fulfill the weekly support requirements if his income from his practice fell to less than $11,700 ($225 x 52 weeks). The escalation clause can only mean exactly what it says, i. e., if plaintiff’s calendar year gross income as shown on his income tax returns is in excess of $50,000 a year, defendant is entitled to the additional payments set forth.

Plaintiff’s only defense to the motion for summary judgment was his bald conclusion that “there was no intention during negotiation of the agreement to consider capital gains nor did I sign any agreement with that understanding.” Plaintiff may have had an undisclosed intention not to include capital gains, but such undisclosed intention is irrelevant. Courts are not at liberty to consider and effectuate any unrevealed, supposed intention. An unrevealed intention is ineffective. The question is the intent expressed or apparent in the writing. Newark Publishers’ Ass’n v. Newark Typographical Union, 22 N. J. 419, 427 (1956); Corn Exchange, etc., Phila., v. Taubel, 113 N. J. L. 605, 609 (E. & A. 1934). Parties are bound by the language used regardless of their actual intent except where the intention may, in accordance with established equitable principles, afford the basis for a reformation of the writing. The escalation clause included all of plaintiff’s income whether that income was from the practice of law, investments or otherwise. There is no support for any other construction of the clause.

Prom the papers before the court there was no genuine issue as to any material fact. Defendant was entitled to a summary judgment as sought in her motion in the amounts set forth in paragraph 2 of her supporting affidavit. See, Judson v. Peoples Bank & Trust Co., 17 N. J. 67, 75 (1954); Sokolay v. Edlin, 65 N. J. Super. 112, 121 (App. Div. 1961); R. 4:46-2. Upon remand partial summary judgment will be entered in the amount of $17,550 representing the amounts due under the escalation clause with interest figured to October 15, 1971.

V

The three orders appealed from are reversed except as to the medical bills. Judgment will be entered by the Chancery Division fixing plaintiff’s current arrears of the basic $225 a week payment and ordering plaintiff to pay such arrears and directing that plaintiff specifically perform his agreement with defendant for the payment of the weekly amounts of $225 until the further order of the court. Partial summary judgment shall also be entered in favor of defendant and against plaintiff in the amount of $17,550 with costs and interest from October 15, 1971.

The matter is remanded to the Chancery Division to proceed in accordance with this opinion and the rules of court.


source: Caselaw Access Project

author: Kapp, J. C. C.

license: Public Domain

text:
    TOWN OF NUTLEY, PLAINTIFF-RESPONDENT, v. JAMES FORNEY, DEFENDANT-APPELLANT.
    Essex County Court, Law Division
    Decided October 14, 1971.

      Mr. Anthony T. Brollas, attorney for respondent.

      Mr. Daniel E. 8cipio, attorney for appellant.
   Kapp, J. C. C.

James Eorney was tried and convicted in the Nutley Municipal Court on March 24, 1971 for violating section 7-0 of an ordinance entitled, “An Ordinance [No. 961] to Regulate the Licensing of Bogs, to Regulate and Prevent the Running at Large of Dogs, and to Authorize the Destruction of Dogs Running at Largo,” and the amendments and supplements thereto, which, in pertinent part, provide that:

No person owning, harboring, keeping, or in charge of any dog shall cause, suffer, or allow such dog to soil, defile, defecate on or commit any nuisance on any common thoroughfare, sidewalk, passageway, bypath, play area, park, or any place whore people congregate or walk, or upon any public property w’hatsoever, or upon any private property without the permission of the owner of said property. The restriction in this section shall not apply to that portion of the street lying between the curb lines, which shall be used to curb such dog under the following conditions:
(j) The person who so curbs such dog shall immediately remove feces deposited by such dog by any sanitary method approved by the local Health Authority.
(2) The feces removed from the aforementioned designated area shall be disposed of by the person owning, harboring, keeping, or in charge of any dog curbed in accordance with the provisions of this Ordinance, in a sanitary maimer approved by the local Health Authority.

He was sentenced to pay a fine of $10, and now appeals pursuant to R. 3 :23.

The facts are these: Erank Plinio, a citizen who resides at 204 Walnut Street, Nutley, complained that on March 19, 1971 at 6 :35 p.m. he saw Eorney in front of 203 Walnut Street with a large Great Dane dog. He observed the dog squat and defecate in the street, about one foot from the curb. When Eorney failed to pick up the excrement he called out to defendant that he was in violation of the ordinance, whereupon defendant remarked, “What are you worried about, I’m not doing it on your lawn.” Defendant then left the area with the dog without removing the dung, which an officer, who responded to the scene, described as “a large deposit” and who opined that it was the dropping of a large dog.

Defendant here contends that section 7—C, supra, offends the equal protection clauses of our Eederal and State Constitutions since it contains an unreasonable classification in singling out dogs for this type of regulation, and that it is unrelated in any substantial degree to the health, safety and welfare of the community and its inhabitants. Defendant further alleges that the ordinance fails to provide an adequate standard for the enabling means of disposition of the excrement.

A dog is not a nuisance per se. Smith v. Costello, 77 Idaho 205, 290 P. 2d 742 (Sup. Ct. 1955), citing 39 Am. Jur. 347, § 65; 66 C. J. S. Nuisances § 32, at 785. But it has also been of the essence of civilized society, where many individuals live as neighbors, for each to exercise his rights with due regard to the rights of all — sic utere tuo ut alienum non laedas. Under such circumstances, this limitation of one’s rights, if necessary to protect the rights of all, is not to be adjudged a taking of property without due process of law but, on the contrary, if properly carried out, it is but the use of due process of law for the protection of the rights of all. Mansfield & Swett, Inc. v. West Orange, 120 N. J. L. 145 (Sup. Ct. 1938); Annett v. Salsberg, 135 N. J. L. 122 (Sup. Ct. 1947); Mugler v. Kansas, 123 U. S. 623, 8 S. Ct. 273, 31 L. Ed. 205 (Sup. Ct. 1887); Hudson County Water Co. v. McCarter, 209 U. S. 349, 28 S. Ct. 529, 52 L. Ed. 828 (Sup. Ct. 1908).

So it is held, in 62 C. J. S. Municipal Corporations § 218, at 402, that

The right to the possession of dogs in a municipal corporation is subject to the limitation that such possession must not interfere with the health, security, and comfort of the oLher inhabitants of the corporation. It has generally been held that such possession may be subject to regulation by municipal corporations. The keeping of dogs is subject not only to many general ordinances against animals, but has also been made the subject of many special regulations.

Is this ordinance within the competency of the municipality to enact? In recent years there has been ail unprecedented recognition and awareness that arises from the abuse of natural resources of air, water and land; “environment” has become a popular catchword. What had heretofore been the battle against the polluters is now an avowed endeavor to reverse the environmental deterioration and to improve the quality of our environment. The environment is comprehensive and complex; it is the air we breathe, the water we drink, the noise we hear, the buildings, trees, flowers, oceans, lakes, rivers, the open spaces we view and through which we move, and the vehicles that transport us.

There was a time when dog owners loved their animals as pets, but today we find that such large dogs are being employed extensively for security purposes as well, because of the alarming increase in crimes of violence. The tons of solid waste and urine that are daily deposited by dogs have undeniably fouled our streets, our walks and parks to the extent that it has become well-nigh intolerable, threatening the health and safety of our citizens. The admixture of excrement with other litter, in and about our public walks and highways, has desecrated the landscape and has incited numerous environmental groups to press for corrective measures to ban this form of erosion, via the legislative halls throughout the country. Dog droppings have become a scourge, a form of environmental pollution, no less dangerous and degrading than the poisons that we exude and dump into our air and water. Persons stepping into dog feces on sidewalks or in streets while crossing, or when entering or alighting from automobiles, can easily carry it on their shoes, and thence into their homes. Infants crawling about a rug or floor upon which such animal feces have been deposited may ingest them, since young children, especially babies, are known to be constantly placing their fingers into their mouths. Following a heavy rainfall, dog feces are known to find their way into sewers, along with other litter and debris. In tbe Town of Xutley tbe sewers have a direct connection to the streams and estuaries of the Passaic River, a river which has been designated by environmentalists as one of the ten most polluted rivers in the country.

There is abundant medical authority to the effect that when the eggs or larva of the Toxoeara Canis worm, which is found in the dog feces, infects a human it courses through the body and may well result in an attack upon a, vital organism, such as the brain, lungs, liver or eyes.

Adverting now to the appellant’s assault upon the ordinance, we find that it is bottomed upon the authority conferred by N. J. S. A. 40 :48-2, which provides that

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

In considering snch municipal measures as are designed to deal with problems of public health, regard must be had for the presumptive validity of an ordinance. Zampieri v. River Vale Tp., 29 N. J. 599 (1959); Mullin v. Ringle, 27 N. J. 250 (1958). With respect to the validity of such regulations concerning dogs, all presumptions are likewise in favor of validity. 62 C. J. S. Municipal Corporations § 218 at 403, citing State v. Mueller, 220 Wis. 435, 265 N. W. 103 (Sup. Ct. 1936); Regard must also be had for the doctrine that the governing body is entitled to wide latitude in its efforts at necessary municipal regulation and that the enactment that finally issues forth should not be disturbed unless it is palpably unreasonable or in conflict with some superior statutory or constitutional limitation. Nor may we lose sight of the mandate in N. J. Constitution (1947) Art. IV, § VII, par. 11, to liberally construe legislation concerning municipal power. Marangi Bros. v. Board of Comm’rs of Ridgewood, 33 N. J. Super. 294 (App. Div. 1954).

In the case of Jones v. Haridor Realty Co., 37 N. J. 384 (1962) Justice Francis said:

One of the basic functions of government is to safeguard the health, safety and welfare of its people. Upon the appearance of conditions detrimental to their welfare, it has the duty to apply remedial measures. The courts in turn are required to respect and sustain such efforts as an exercise of the legislative police power so long as they are not clearly arbitrary and are reasonably related to the objective sought to be attained, [at 393]

While such a regulation, albeit lawful, may be considered by some to be drastic in its operation, yet the court is not at liberty to substitute its judgment for that of the municipality. Peoples Rapid Transit v. Atlantic City, 105 N. J. L. 286 (Sup. Ct. 1929), aff’d Parlor Car Deluxe Coach Co. v. Atlantic City, 106 N. J. L. 587 (E. & A. 1930); Newark v. Charlton Holding Co., 9 N. J. Super. 433 (Cty. Ct. 1950). All such questions of policy, wisdom and expediency are for the legislative and not the judicial branch of the government. Jones v. Haridor Realty Corp., supra. “The wisdom of legislative action is reviewable only at the polls. The judicial role is tightly circumscribed.” Kozesnik v. Montgomery Tp., 24 N. J. 154, 167 (1957). Furthermore, merely because an ordinance is burdensome or distasteful to some individuals will not render it arbitrary or unreasonable per se.

In the means employed to advance the public health and safety, the legislative authority has broad discretion. Amodio v. Board of Comm’rs, West New York, 133 N. J. L. 220 (Sup. Ct. 1945). A state may grant to cities and towns the right to exercise such parts of the police power as to dogs as it may deem proper. 4 Am. Jur. 2d, Animals, § 23, at 269. It is apparent therefore that the ordinance itself bears a substantial relation to the security of the public health.

Defendant next claims that the ordinance is invalid in that it contains an unreasonable classification in singling out dogs for this type of regulation. Not so. The governing body is endowed with a high degree of discretion where, as here, the legislation is inspired by considerations of public health. Dogs are generally made the subject matter of “special and peculiar regulations.” 4 Am. Jur. 2d, Animals, § 3 at 252. And this “without depriving their owners of any constitutional right.” Id., § 6, at 254; § 23, at 269, citing Nicchia v. New York, 254 U. S. 228, 41 S. Ct. 103, 65 L. Ed. 235, 13 A. L. R. 826 (1920); Sentell v. New Orleans & C. R. Co., 166 U. S. 698, 17 S. Ct. 693, 41 L. Ed. 1169 (1897); Simpson v. Los Angeles, 40 Cal. 2d 271, 253 P. 2d 464, app. dismd. 346 U. S. 802, 74 S. Ct. 37, 98 L. Ed. 333, reh. den. 346 U. S. 880, 74 S. Ct. 118, 98 L. Ed. 387 (Sup. Ct. 1953); McPhail v. Denver, 59 Colo. 248, 149 P. 257 (Sup. Ct. 1915); Shadoan v. Barnett, 217 Ky. 205, 289 S. W. 204, 49 A. L. R. 843 (Ct. App. 1926); Blair v. Forehand, 100 Mass. 136 (Sup. Ct. 1868); Van Horn v. People, 46 Mich. 183, 9 N. W. 246 (Sup. Ct. 1881); Julienne v. Jackson, 69 Miss. 34, 10 So. 43 (Sup. Ct. 1891); Carthage v. Rhodes, 101 Mo. 175, 14 S. W. 181 (Sup. Ct. 1890); State v. Harrell, 203 N. C. 210, 165 S. E. 551 (Sup. Ct. 1932); Dickinson v. Thress, 69 N. D. 748, 290 N. W. 653 (Sup. Ct. 1940); Commonwealth v. Haldeman, 288 Pa. 81, 135 A. 651 (Sup. Ct. 1927); State v. Anderson, 144 Tenn. 546, 234 S. W. 768, 19 A. L. R. 180 (Sup. Ct. 1920). Annotation: 49 A. L. B. 847.

The defendant further claims that the ordinance is deficient because it fails to set forth a definitive standard for the disposition and removal of the dog feces, except to declare that it shall be “in a sanitary manner approved by the local Health Authority.” This contention is untenable. It does not require any degree of ingenuity to understand that the measure mandates the owner to remove the droppings of his dog from the prohibited area, and to dispose of them. It is fair to assume that a master who truly values his pet will not find it to be unduly oppressive or demeaning to remove the excrement, encase it in a wrapper or a container and dispose of it in a garbage receptacle or in some other suitable manner. See Brandon v. Montclair, 124 N. J. L. 135, 143 (Sup. Ct. 1940); aff'd 125 N. J. L. 367 (E. & A. 1940), where Justice Heher rightly noted that

A statute often speaks as plainly by inference, and by means of the purpose which underlies it, as in any other manner. That which is clearly implied is as much a part of the law as that which is expressed, [at 143]

See also West Jersey and Seashore R. R. Co. v. Board of Public Utility Comm’rs, 87 N. J. L. 170 (E. & A. 1915).

In Annett v. Salsberg, supra; Justice Wachenfeld declared that

The prohibition contained in the instant law [R. S. 26:3B-7, L. 1945, c. 192] is palpably in the interest of public health. The statute bears a direct and substantial relation to it and is obviously a regulation designed to protect the community from the ravages of disease and contagion. It is reasonable, advisable and necessary and therefore, we think, unassailable.
The statute is not so vague as to make it unconstitutional. Its mandates so clearly express the acts condemned that the ordinary person could intelligently and easily conclude what is prohibited. Reasonable certainty fulfills the constitutional requirement and liberal effect is always given to the legislative intent, where possible.

The principle is also aptly expressed by Justice Heher in Mansfield & Swett, Inc. v. West Orange, supra:

The state possesses the inherent authority — it antedates the Constitution — to resort, in the building and expansion of its community life, to such measures as may be necessary to secure the essential common material and moral needs. The public welfare is of prime importance; and the correlative restrictions upon individual rights — either of person or of property — are incidents of the social order, considered a negligible loss compared with the resultant advantages to the community as a whole. Planning confined to the common need is inherent in the authority to create the municipality itself. It is as old as government itself; it is of the very essence of civilized society.

Now, with respect to the claim of unreasonableness of that part of the ordinance which mandates that the owner shall curb his dog in the street between the curb lines: in McGonnell v. Comm’rs of Orange, 98 N. J. L. 642 (Sup. Ct. 1923), the court declared:

The power of a city council or other body to pass ordinances relating to the various matters entrusted by the legislature to its jurisdiction, carries with it the implication (expressed in many cases) that such ordinances must be reasonable. Every intendment is made in favor of their reasonable character, and to support them a construction will be placed on them which will make them reasonable rather than unreasonable; but the question of their reasonable character is for the court, which will not hesitate to declare them void if plainly unreasonable. This is familiar law, acted on in a multitude of cases, in many of which the court confined its action to the particular part of the ordinance shown to be unreasonable, leaving the rest to stand. Some of the cases follow: Long v. Jersey City, 37 N. J. L. 348, 351; Pennsylvania Railroad Co. v. Jersey City, 47 N. J. L. 286, 288, in the Court of Errors and Appeals, where Chief Justice Beasley said in the opinion: “If this bylaw [ordinance] be subject to this imputation [that it is unreasonable] there can be no doubt that it would be the duty of this court to pronounce it a nullity.”

Again in Wagman v. Trenton, 102 N. J. L. 492 (Sup. Ct. 1926), we find:

Where, as here, the subject-matter of the ordinance is within the police power of the city and the ordinance is adopted by the proper legislative body of the city, the presumption is (until the contrary be shown) that the ordinance is reasonable. The question of reasonableness is a question of fact, and the burden of proof is upon the prosecutor who attacks the ordinance to show its unreasonableness. The court should not interfere unless it is shown that the ordinance, either upon the face of its provisions or by reason of its operation in the circumstances under which it is to take effect, is unreasonable or oppressive. Falco v. Atlantic City, 99 N. J. L. 19; North Jersey Street Railway Co. v. Jersey City, 75 N. J. L. 349.

In the leading case on the exercise and the the limitations of police power, Justice Heher in New Jersey Good Humor, Inc. v. Bradley Beach, 124 N. J. L. 162 (E. & A. 1940), stated:

The restraints and regulations imposed for the general good and welfare must needs have the virtue of reasonableness. There cannot be, in the name of police regulation, an unreasonable and oppressive curtailment of personal or property rights, [at 168]

The public right of reasonable regulation for the common good and welfare is denominated as the police power. The exertion of this sovereign authority is controlled by constitutional and statutory delineation. The restraint thus laid upon individual rights — either of person or of property — may not go beyond the public need; and the means employed must be both reasonable and appropriate to that end.

If a person is required to exercise or walk his dog only in the street, it exposes him and his dog 'heedlessly and unnecessarily to the dangers of vehicular traffic and therefore runs counter to the public safety. This is particularly true where the owner resides in a congested area on a main thoroughfare where the flow of traffic may be unusually heavy and the likelihood of injury readily foreseeable. So long as the owner of the dog is required to remove its feces, it is of no consequence that they may be dropped between the curb lines or elsewhere.

That part of the measure which mandates that the owner shall curb his dog in the street between the curb lines is unreasonable, arbitrary and dangerous to life and limb and therefore invalid.

However, since such invalidity of a portion of an ordinance does not render another part invalid, where the two parts are separable and are not dependent on each other, State v. Western Union Telegraph Co., 13 N. J. Super. 172 (Cty. Ct. 1951); Affiliated Distillers Brands Corp. v. Sills, 56 N. J. 251 (1970); 62 C. J. S. Municipal Corporations § 218 at 403, we have determined that the underlying purpose of the ordinance, i. e., to remove the excrement and to dispose of it in a sanitary manner is a valid exercise of the municipal power inasmuch as it is designed to safeguard the health and well-being of the populace.

Affirmed.

      Air Pollution Control Act, N. J. S. ¿1. 26 :2C-1 el seq.

      Dog lovers are legion; it has been said that the one absolutely unselfish friend a man may have in this selfish world is the dog. The pages of history are bright with the record of spectacular tasks performed by dogs, many of them who tax our credulity. The German Shepherd has carved a well-earned niche in the Hall of Fame as a guide dog to the blind, bringing light into the darkness of countless lives. Moreover, he has no peer in the uncanny sense of detection he brings to police work. There probably never lias been a war in which a dog has not participated. Nature has endowed this animal with his chief milifary value — an extraordinary development of the senses of smell and hearing. A satisfactory mechanical substitute for them has yet to be invented. These gifts combined with the unquestioning faithfulness, intelligence, adaptability, and endurance and utter willingness to serve for no more than a friendly pat and a kind word have made them an important adjunct in man’s wars down through the ages.

      We take judicial cognizance of such general facts of natural history relating to the animal kingdom, 31A O. J. S. Evidence § 87, at 117; the ordinary habits, characteristics and instincts of dogs are matters of common knowledge. Ibid., at note 69.

      See Kramer, “Awash in Excrement, New York Fights Back Against 500,000 Dogs,” Wall Street Journal, p. 1 (May 28, 1971).

      Legislation has been enacted in several jurisdictions to outlaw the sale of nonreturnable beverage containers. Soft drinks, beer, fruit juices and milk are required to be sold in returnable containers carrying a minimum deposit of five cents. Thus there is a concerted effort to prevent urban America from being buried under billions of tons of garbage it produces every day.

      Nutley, according to the 1970 census, has a population of 31,913 inhabitants within a land area of 3% square miles. In 1970 1938 dog licenses were issued, and thus far in 1971 2182.

      See the monograph entitled “Toxocariasis” by A. W. Woodruff, M.D., F.R.C.P., British Medical Journal 663 (Sept. 1970) ; its concluding paragraph reads in part:
      The evidence indicates that there is now enough knowledge to act, firstly, to control the infection in dogs and cats and thus prevent many developing the disease, and, secondly, to increase awareness of and use of diagnostic and therapeutic facilities to deal with the infection in man. Possibly the most important conclusion from this work is that though hardly known as a human infection till 10 years ago toxocariasis is widespread and an important cause of morbidity. The clinical and public health problems the infection presents are serious and need urgent attention, gee also, in furtherance of this conclusion, Bourke, G.M. and Yeates, F.M., “Blindness Due to Household Pets (Tossocara Ganis Infestation) ; M.J.A., July 1, 1961, 12-14, and Beaver, P.C., “Tossocarosis (Visceral Larva Migrans) in Relation to Tropical Eosinophilia"; Bull, de la Soc. de Path. Exot., 1962, 55, 555-576.


author: Lane, J. A. D. K. V. N.,

text:
    STATE OF NEW JERSEY IN THE INTEREST OF K. V. N.
    Superior Court of New Jersey Appellate Division
    Argued October 19, 1971
    Decided October 29, 1971.

      Before Judges Kilkenny, Labkecqü® and Laye.

      Mrs. Rosemary K. Reavey, Assistant Deputy Public Defender, argued the cause for appellant (Mr. Stanley G. Van Ness, Public Defender, attorney; Mrs. Reavey, of counsel and on the brief).

      Mr. Elson P. Kendall, Assistant Prosecutor, argued the cause for respondent (Mr. Karl Asch, Union County Prosecutor, attorney; Mr. Anthony N. Palumbo, Assistant Prosecutor, on the brief).
   The opinion of the court was delivered by

Lane, J. A. D. K. V. N.,

a juvenile 17 years old at the time, was found delinquent based upon a complaint charging that on February 6, 1970 he endangered his health, morals and general welfare by being “under the influence of a narcotic drug, namely heroin.” On August 5, 1970 he was committed to the New Jersey Reformatory (now Youth Correctional Institution Complex) for an indeterminate term not to extend beyond his twenty-first birthday (N. J. 8. A. 2A:U-37). Following his commitment the juvenile moved to limit the term of commitment to not more than six months on the ground that that was the maximum senenee an adult could receive for being under the influence of a narcotic drug, then a violation of the Disorderly Persons Act, N. J. 8. A. 2A ¡170-8 (now dealt with in N. J. 8. A. 24 ¡21-20 (b)). The trial court denied the motion, setting forth its reasons in a comprehensive written opinion. State in the Interest of K. V. N., 112 N. J. Super. 544 (J. & D. R. Ct., 1970). The juvenile appeals from the order denying his motion.

The juvenile argues that because he is a juvenile he has been committed to the Youth Correctional Institution Complex for an indeterminate term, with the possibility of being confined for four years, when the maximum sentence an adult could receive for the same conduct would be six months’ imprisonment. He further argues that since in fact there are no distinctions made at the Correctional Institution between adults and juveniles he thereby receives no special beneficial and rehabilitative treatment while he is confined and thus the classification based on age for the purposes of confinement is unjustifiable. Essentially he argues that he has been denied his constitutional guarantee of equal protection.

I

Recent United States Supreme Court cases have indicated that the equal protection clause of the Fourteenth Amendment should be available to the juvenile in appropriate aspects of the juvenile system.

In In re Gault, 387 U. S. 1, 87 S. Ct. 1428, 18 L. Ed. 2d 527 (1967), the United States Supreme Court held that neither the Fourteenth Amendment nor the Bill of Rights was for adults alone. Applying the due process clause of the Fourteenth Amendment to juvenile court proceedings, the court held that a juvenile has the right to notice of charges, right to counsel, right to confrontation and examination of witnesses, and right to privilege against self-incrimination. The court was careful to poiut out that it was not considering the impact of the Fourteenth Amendment or Bill of Rights upon the totality of the relationship between juvenile and state. Neither was it considering the entire process relating to juvenile delinquents, specifically stating that it was not considering any aspect of the dispositional process of the system. The court appeared to assume the validity of confinement of a juvenile which possibly could be longer than that of an adult for the same conduct. The court appeared to base its application of the due process standards to a juvenile court proceeding partially on this assumption.

See also In re Winship, 397 U. S. 358, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970).

In Kent v. United States, 383 U. S. 541, 86 S. Ct. 1045, 16 L. Ed. 2d 84 (1966), Justice Portas indicated the court’s concern over the practical application of the juvenile proceedings. He said:

While there can be no doubt of the original laudable purpose of juvenile courts, studies and critiques in recent years raise serious questions as to whether actual performance measures well enough against theoretical purpose to make tolerable the immunity of the process from the reach of constitutional guaranties applicable to adults. There is much evidence that some juvenile courts, including that of the District of Columbia, lack the personnel, facilities and techniques to perform adequately as representatives of the State in a parens patriae capacity, at least with respect to children charged with law violation. There is evidence, in fact, that there may be grounds for eoncern that the child receives the worst of both worlds: that he gets neither the protections accorded to adults nor the solicitous care and regenerative treatment postulated for children. T383 V. S. at 555-556, 86 S. Ct. at 1054.]

Eecent decisions in New Jersey have considered the effect of In re Gault, supra, 387 U. S. 1, 87 S. Ct. 1428.

In State in the Interest of J. W., 57 N. J. 144 (1970), in holding that a juvenile was not entitled to a jury trial, the court discussed the effect of In re Gault as to the New Jersey juvenile system. The court said:

We agree with the general statement of the Pennsylvania Superior Court which said in Commonwealth v. Johnson, 211 Pa. Super. 62, 234 A. 2d 9 (Super. Ct. 1967), cited by the Pennsylvania Supreme Court in In re Terry, 438 Pa. 339, 265 A. 2d 350, 355 (1970), prob. juris, noted [McKeiver v. Pennsylvania], 399 U. S. 925, 90 S. Ct. 2271, 26 L. Ed. 2d 791:
“It is inconceivable to us, however, that our highest Court attempted, through Cault, to undermine the basic philosophy, idealism and purposes of the juvenile court. We believe that the Supreme Court did not lose sight of the humane and beneficial elements of the juvenile court system; it did not ignore the need for each judge to determine the action appropriate in each individual case; it did not intend to convert the juvenile court into a criminal court for young people. Rather, we find that the Supreme Court recognized the juvenile courts, while acting within the constitutional guarantees of due process, must, nonetheless, retain their flexible procedures and techniques. The institution of jury trial in juvenile court, while not materially contributing to the fact-finding function of the court, would seriously limit the court’s ability to function in this unique manner, and would result in a sterile procedure which could not vary to meet the needs of delinquent children.” [57 Pf. J. at 145-146.]

In State in the Interest of L. N., 109 N. J. Super. 278 (App. Div.), aff’d o.b. 57 N. J. 165 (1970), the court held that subsections (i) and (m) of section (2) of N. J. S. A. 2A:4-14, permitting an adjudication of delinquency to be based either on a juvenile’s growing up in idleness or delinquenc]'-, or on deportment endangering morals, health or general welfare of the juvenile, was not a violation of due process. The court discussed the effect of In re Gault:

We are satisfied that the Supreme Oourt did not intend In re Gault to undermine the basic philosophy, idealism and purposes of juvenile courts. Commonwealth v. Johnson, 211 Pa. Super. 62, 234 A. 2d 9 (Super. Ct. 1967). The juvenile court proceeding is not the trial of a child charged with a crime but is mercifully designed to save him from such an ordeal in the future. State v. Monahan, 15 N. J. 34, 37 (1954), cert. den. 348 U. S. 889, 75 S. Ct. 210, 99 L. Ed. 698 (1954). It has been said to be designed to make men out of errant boys. State, in the Interest of Carlo, 48 N. J. 224, 244 (1966) (concurring opinion Weintraub, C. J.); State v. Tuddles, 38 N. J. 565, 571-573 (1962). The State as parens patriae has a duty to see to it that a minor does not live a life of delinquency. In re State in Interest of S. I., 68 N. J. Super. 598, 604 (J. & D. R. Ct. 1961). In general, the determination of what activities involve danger that a child will become a hazard to himself or to society rests with the Legislature, and its policies may not be interfered with by us simply because we may disagree with their wisdom. State v. Monahan, supra, 15 N. J. at 46. [109 N. J. Super. at 285-286]

Notwithstanding the seeming reluctance of our courts to extend the Gault philosophy further than necessary, it is doubtful that a juvenile can be denied the constitutional guarantee of equal protection within the dispositional process of the juvenile system. We proceed on the assumption that he cannot be denied such guarantee. The question is whether the classification for dispositional purposes based upon the age of the violator is contrary to the equal protection clause.

II

While a State has broad classification power, Ferguson v. Skrupa, 372 U. S. 726, 732, 83 S. Ct. 1028, 1032, 10 L. Ed. 2d 93, 98 (1963), the United States Supreme Court has said that the equal protection clause requires more of a state law than nondiseriminatory application within the class it establishes. It imposes a requirement of some rationality in the nature of the class singled out. It is not a demand that a statute necessarily apply equally to all persons. It does require that in defining a class subject to legislation, the distinctions that are drawn have some relevance to the purpose for which the classification is made. Rinaldi v. Yeager, 384 U. S. 305, 308-309, 86 S. Ct. 1497, 1499-1500, 16 L. Ed. 2d 577, 580 (1966). While a state has broad power when it comes to making classifications, it may not draw a line which constitutes an invidious discrimination against a particular class. The test is whether the line drawn is rational. Levy v. Louisiana, 391 U. S. 68, 71, 88 S. Ct. 1509, 1511, 20 L. Ed. 2d 436, 439, rehearing denied 393 U. S. 898, 89 S. Ct. 65, 21 L. Ed. 2d 185 (1968). The equal protection clause does not require that things different in fact be treated in law as though they were the same. Tigner v. Texas, 310 U. S. 141, 147, 60 S. Ct. 879, 882, 84 L. Ed. 1124, 1128 (1940). Generally state legislatures are presumed to have acted within their constitutional power despite the fact that in practice their laws result in inequality. A statutory discrimination will not be set aside if any stale of facts reasonably may be conceived to justify it. McGowan v. Maryland, 366 U. S. 420, 425-426, 81 S. Ct. 1101, 1105, 6 L. Ed. 2d 393, 399 (1961).

In applying the equal protection clause to social and economic legislation the United States Supreme Court has given great latitude to the legislatures in making classifications. Dandridge v. Williams, 397 U. S. 471, 485, 90 S. Ct. 1153, 1161, 25 L. Ed. 2d 491, 501-502 (1970); Levy v. Louisiana, supra, 391 U. S. at 71, 88 S. Ct. 1509. See McGowan v. Maryland, supra, 366 U. S. 420, 81 S. Ct. 1101; Williamson v. Lee Optical Co., 348 U. S. 483, 489, 75 S. Ct. 461, 465, 99 L. Ed. 563, 573 (1955). However, it has been extremely sensitive when civil rights are involved, adopting a strict standard. Levy. v. Louisiana, supra; Harper v. Virginia Board of Elections, 383 U. S. 663, 669-670, 86 S. Ct. 1079, 1082-1083, 16 L. Ed. 2d 169, 174 (1966); Skinner v. Oklahoma ex rel. Williamson, 316 U. S. 535, 541, 62 S. Ct. 1110, 1113, 86 L. Ed. 1655, 1660 (1942). It has not hestitated to strike down a classification as invidious even though the legislation had history and tradition behind it. Brown v. Bd. of Ed., 347 U. S. 483, 74 S. Ct. 686, 98 L. Ed. 873 (1954); Harper v. Virginia Bd. of Elections, supra, 383 U. S. at 669, 86 S. Ct. 1079. Where a classification is either predicated on race, alienage, nationality or penalizes a fundamental right, the classification must be carefully and meticulously scrutinized; the presumption of constitutionality disappears, and the state has the burden of showing a compelling governmental interest. Graham v. Richardson, 403 U. S. 365, 91 S. Ct. 1848, 1852, 1854, 29 L. Ed. 2d 534, 541-542 (1971); Kramer v. Union Free School District, 395 U. S. 621, 26, 89 S. Ct. 1886, 1889, 23 L. Ed. 2d 583, 589 (1969); Cipriano v. City of Houma, 395 U. S. 701, 704, 89 S. Ct. 1897, 1899, 23 L. Ed. 2d 647, 650-651 (1969); Shapiro v. Thompson, 394 U. S. 618, 634, 89 S. Ct. 1322, 1331, 22 L. Ed. 2d 600, 615 (1969); Loving v. Virginia, 388 U. S. 1, 8-9, 11, 87 S. Ct. 1817, 1822, 1823, 18 L. Ed. 2d 1010, 1015-1016, 1017-1018; Harper v. Virginia Bd. of Elections, supra, 383 U. S. at 670, 86 S. Ct. 1079; McLaughlin v. Florida, 379 U. S. 184, 196, 85 S. Ct. 283, 290, 13 L. Ed. 2d 222, 231 (1964); Korematsu v. United States, 323 U. S. 214, 216, 65 S. Ct. 193, 194, 89 L. Ed. 194, 199 (1944), reh. den. 324 U. S. 885, 65 S. Ct. 674, 89 L. Ed. 1435 (1945); Skinner v. Oklahoma ex rel. Williamson, supra, 316 U. S. at 541, 62 S. Ct. 1110. See, discussion of the equal protection clause in Oregon v. Mitchell, 400 U. S. 112, 91 S. Ct. 260, 266, 27 L. Ed. 2d 272, 282 (1970); “Developments in the Law — Equal Protection” 82 Harv. L. Rev. 1067, 1087-1123 (1969).

In equal protection cases the New Jersey Supreme Court generally has followed the view that the equal protection clause does not deprive the State of the power to classify in the adoption of police laws but allows wide discretion, precluding only that done without any reasonable basis and therefore purely arbitrary. The constitutionality of a legislative classification is presumed, and one who attacks the classification must carry the heavy burden of showing its arbitrariness. A classification having some reasonable basis is not invalid merely because it is not made with mathematical nicety or because in practice it results in some inequality. Only invidious discrimination is unconstitutional. State v. Smith, 58 N. J. 202, 207 (1971); State v. Young, 57 N. J. 240, 249 (1970), cert. den. 402 U. S. 929, 91 S. Ct. 1527, 28 L. Ed. 2d 863 (1971); N. J. Chapt., Am. I. P. v. N. J. State Bd. of Prof. Planners, 48 N. J. 581, 602—603, app. dism., cert. den. 389 U. S. 8, 88 S. Ct. 70, 19 L. Ed. 2d 8 (1967); Shelton College v. State Bd. of Ed., 48 N. J. 501, 521 (1967); David v. Vesta Co., 45 N. J. 301, 314-315 (1965).

In State v. Young, supra, 57 N. J. 240, defendant had challenged a statute prohibiting entering a school with intent to disturb the peace and good order of the school as violative of equal protection. The court applied the traditional test and held that it was not a violation of the equal protection clause to exclude from the prohibition a bona fide student, parent, legal guardian, teacher, administrator or school employee. Defendant argued that the strict test should be applied and that the State must therefore show a compelling governmental interest. Chief Justice Weintraub noted that the court was not dealing with a classification drawn on racial, ethnic, national or religious bases, which, being inherently suggestive of the invidious, might per se invalidate a classification or at least make it suspect. Discussing the active or strict standard he said:

Defendant says that if the classification may stand under the traditional test we have just applied, still it must fall under decisions of the United States Supreme Court which require that a “compelling state interest” be shown to sustain classifications in certain areas. This controversial concept has been applied to statutes denying the right to vote, Kramer v. Union Free School District No. 15, 395 U. S. 621, 89 S. Ct. 1886, 23 L. Ed. 2d 583 (1969); Evans v. Common, 398 U. S. 419, 90 S. Ct. 1752, 26 L. Ed. 2d 370 (1970). The same concept was invoked with respect to a residency requirement for welfare benefits, and this upon a finding that the denial of benefits impaired the constitutionally secured right to travel. Shapiro v. Thompson, 394 U. S. 618, 89 S. Ct. 1322, 22 L. Ed. 2d 600 (1969). We note that in Dandridge v. Williams, 397 U. S. 471, 90 S. Ct. 1153, 25 L. Ed. 2d 491 (1970), where a statute relating to county welfare benefits fixed a maximum limit without regard to the number of the members of a family, but where, unlike Shapiro, the statute did not draw a line related to migration, i. e., residency, the classification issue was resolved in conventional terms without reference to a “compelling state interest.”
We cannot know how expansive the reach of the new concept will be. Suffice it to say that it has been applied to the denial of a right and indeed a right thought to involve a “fundamental interest,” i. e., right to vote and the right to migrate. The statute before us does not deny to some a common right belonging to all. There is no right to enter a school building with the hostile intent the statute forbids. [at 251-252]

The juvenile argues that the State has the burden of showing the classification is constitutional; that is, that the strict standard should be applied.

The Constitution permits qualitative differences in meting our punishment, and there is no requirement that two persons convicted of the same offense receive identical sentences. Cf. Williams v. Illinois, 399 U. S. 235, 243, 90 S. Ct. 2018, 2023, 26 L. Ed. 2d 586, 594 (1970).

In New Jersey it has been recognized that the Legislature has wide discretion in the creation or recognition of different classes of offenders for separate treatment and that in the administration of criminal justice no person can be subject to a greater or different sentence for an offense than that to which others of the same class are subjected. The constitutional prescription for equal protection does not mean that a designated sanction must reach or be imposed upon every class of violators of a particular law to which it might apply. It does not mean that the Legislature must punish or regulate all such persons in precisely the same way or not at all. State v. Smith, supra, 58 N. J. at 206-207.

Since the Legislature can properly treat a particular class differently for the purpose of sentencing, if the classification is invalid it must be because a classification based on age is either per se invalid, or invalid because there is no rational nexus between the classification and a state interest, oi* invalid because the state has not shown a compelling need.

Ill

A classification based on age has been held proper if it is for the benefit or protection of those so classified or for the protection of the public. State ex rel. Emerson v. Erickson, 159 Minn. 287, 198 N. W. 1000 (Sup. Ct. 1924); State v. Rosenfield, 111 Minn. 301, 126 N. W. 1068 (Sup. Ct. 1910). See Smith v. State, 444 S. W. 2d 941 (Tex. Civ. App. 1969), application for writ of error refused; R. R. v. State, 448 S. W. 2d 187 (Tex. Civ. App. 1969), application for writ of error refused, appeal dismissed 400 U. S. 808, 91 S. Ct. 35, 27 L. Ed. 2d 37 (1970).

The disposition of juvenile offenders under the Youth Corrections Act, 18 U. S. O. A. §§ 5005 et seq., to terms which may result in commitment for a period of time longer than that which an adult could receive for the same offense has been held consistently 2iot to be violative of the equal protection clause, due process clause, or the Eighth Amendment (cruel and unusual punishment). Caldwell v. United States, 435 F. 2d 1079 (10 Cir. 1970); Guidry v. United States, 433 F. 2d 968 (5 Cir. 1970); United States v. Rehfield, 416 F. 2d 273 (9 Cir. 1969); United States v. Dancis, 406 F. 2d 729 (2 Cir. 1969); Foston v. United States, 389 F. 2d 86 (8 Cir. 1968); Johnson v. United States, 374 F. 2d 966 (4 Cir. 1967); Brisco v. United States, 368 F. 2d 214 (3 Cir. 1966); Rogers v. United States, 326 F. 2d 56 (10 Cir. 1963); Carter v. United States, 113 U. S. App. D. C. 123, 306 F. 2d 283 (1962); Cunningham v. United States, 256 F. 2d 467 (5 Cir. 1958).

The classification based on age is not per se invalid.

IY

At least one- state court has upheld state statutory provisions for the use of age for classification in the disposition of violators of criminal statutes, finding that there was a rational nexus between the classification and the state interest.

In Smith v. State, supra, 444 S. W. 2d 941, a juvenile adjudged delinquent and sentenced to confinement in the state training school for boys for a period not to extend beyond his twenty-first birthday appealed from a denial of an application for a writ of habeas corpus. He faced a possible confinement for five years for carrying a switchblade knife. An adult convicted of the same offense could be confined for a maximum of one year and might escape with no more than the payment of a fine. The juvenile argued that the difference in confinement was based solely on age and was therefore a denial of equal protection and due process. The court noted that conceivably under the Texas juvenile system a juvenile of 10 years could be confined for 11 years for conduct which would subject an adult to no more than a fine or confinement for a few days. Stating that the equal protection clause does not prevent a selection of a class for different treatment, the court said the issue was whether or not there was an existence of a rational nexus between the classification and a valid governmental interest. Noting that the United States Supreme Court had utilized two approaches in dealing with the equal protection clause, the court said that if it were to apply the traditional test, it must rule the juvenile’s appeal to be without merit. The purpose of the statute involved was the education, treatment and rehabilitation rather than retributive punishment. The court cited the fact that the juvenile proceedings are civil rather than criminal; that the hearing results in an adjudication rather than conviction; that confinement is to a training school rather than a prison; that an adjudication of delinquency does not carry with it any civil liabilities ordinarily resulting from a conviction of crime; that a juvenile delinquent is not considered a criminal. The court said:

* * * requires no straining of the judicial imagination to find the existence of a reasonable relationship between the legislative purpose and the use of age as the classifying trait. It is indisputably the province oí the Legislature to determine the manner in which various offenders will be treated, and if the difference in treatment is founded upon an arguably rational basis, the legislative decision is determinative. The Legislature could reasonably have concluded that children, as a class, should be subject to indefinite periods of confinement, not to extend beyond their twenty-first birthday, in order to insure sufficient time to accord the child sufficient treatment of the type required for his effective rehabilitation. This conclusion might be based on physiological and psychological differences between children and adults, the types of crimes committed by children, their relation to the criminal world, their unique susceptibility to rehabilitation, and their reaction, as a class, to confinement and discipline, as well as reformative treatment. It is true that some or all of these conclusions are based on sociological, psychological, and penological theories which are not universally agreed on among so-called social scientists, but the fact that eminent scholars believe such theories to he valid prevents us from branding them as palpably irrational. Tat 945]

Since the juvenile made no showing to refute the conclusion that juveniles who engage in deviant conduct require a different type and manner of confinement than do adult criminals, the court found that the presumption of constitutional validity prevailed.

The juvenile concedes that the classification in theory is reasonable. However, he argues that in practice there is no rational basis for it since adults and juveniles are treated alike in the same institution.

The juvenile does not deny the fact that the Youth Correctional Institution Complex is geared toward rehabilitation rather than punishment. The thrust of his appeal is based on the fact that some adult offenders (males between the ages of 15 and 30 years who have not previously been sentenced to a State Prison in any State, N. J. 8. A. 30:4-147) are sentenced to the Correctional Institution as well as juvenile offenders. Within the Correctional Institution apparently they are treated similarly. The juvenile receives little special treatment. See, Urbaniak, “The History and Philosophy of the New Jersey Reformatory System” (1968); Eauver, “Hew Jersey Reformatory, Annandale, Program Synopsis” (1970). Since the treatment is basically the same for adult and juvenile, the juvenile argues the classification has no rational basis and is a violation of equal protection.

A juvenile, if sentenced to the Correctional Institution, must be sentenced to an indeterminate term not to extend beyond his twenty-first birthday. Once properly sentenced to the Correctional Institution, the question of release is solely within the discretion of the board of managers of the Youth Correctional Institution Complex. See In re Legdon, 13 N. J. Super. 405, 409 (Cty. Ct. 1951). Cf. In re Nicholson, 69 N. J. Super. 230, 233 (App. Div. 1961); N. J. S. A. 30:4-148. A juvenile may be released after one month, six months or longer depending on his response to the treatment.

The fact that adults and juveniles may be treated the same in the Correctional Institution does not indicate that the classification of juveniles in respect to sentencing is without a reasonable nexus. As the sentence for the juvenile may be other than what an adult would receive, the indeterurinate term for an adult is other than what he would have received if not sentenced to the Correctional Institution. For both, the classification is related to the State’s interest in rehabilitating its citizens. Additionally, although a juvenile might be sentenced to the same institution as an adult, the juvenile is accorded benefits not accorded the adult. See N. J. 8. A. 2A :4-39.

It should be noted that young adults, 22 to 26 years oid, may be sentenced under the Youth Corrections Act, 18 U. 8. G. A. § 5005 et 'seq., and incarcerated with juveniles. 18 U. 8. C. A. § 4209. See United States v. Waters, 141 U. S. App. D. C. 289, 437 F. 2d 722 (1970). As previously noted, this act has been upheld consistently.

There is a reasonable nexus between the classification by age and the State’s interest in rehabilitation of juvenile offenders.

V

The issue remains as to whether the court should suspect the classification and place the burden on the State to show that the juvenile is in fact given treatment towards rehabilitation. The juvenile argues that In re Wilson, 438 Pa. 425, 264 A. 2d 614 (Sup. Ct. 1970), and In re Brown, No. 17,997 (3 Cir., July 10, 1970), indicate that the burden is on the State.

In In re Wilson the juvenile was involved in an interracial street fight and adjudicated a delinquent based on two charges of simple assault and battery. He was committed to the State Correctional Institution and appealed. One of the grounds on appeal was that his commitment for a period potentially longer than that which an adult charged with two counts of simple assault and battery could receive violated the equal protection clause of the Fourteenth Amendment. The court held that there could be no constitutionally valid distinction between a juvenile and an adult offender which justified making one of them subject to a longer maximum commitment in the same institution for the same conduct. Justice Roberts, however, then said:

There can be circumstances under which a longer maximum commitment may be permissible, but only if three factors are present: (1) The juvenile must have notice at the outset of the proceedings of any and all factors upon which the state proposes to base the adjudication of delinquency; (2) the ultimate conclusions upon which the finding of delinquency is based, and the facts supporting each of them, must be clearly found and set forth in the adjudication; and (3) it must be clear that the longer commitment will result in the juvenile’s receiving appropriate rehabilitative care and not just in his being deprived of his liberty for a longer time. If all three of these conditions are present, a juvenile may be deprived of his liberty for a period in excess of the maximum sentence which he could have received if treated as an adult. [264 A. 2d at 618]

It was held that the state had the burden of showing that the rehabilitative theory in fact did work. The court vacated the adjudication and commitment and remanded for further proceedings.

In re Wilson is distinguishable from the case before us. The disparity in treatment involved was between the adjudicated delinquent and a juvenile criminal. In Pennsylvania a minor between the ages of 16 and 18 could be treated at the discretion of the court either as an adult criminal offender and tried before the Court of Quarter Sessions or as a juvenile and tried under the Juvenile Court Act. In either case the commitment would be with few exceptions to the same institution, but the juvenile delinquent would receive an indeterminate term to his twenty-first birthday, whereas the juvenile criminal would receive a term with a maximum sentence, in this case shorter than the term of the juvenile delinquent.

In the present case, the juvenile argues that his conduct was equivalent to a disorderly persons’ offense. As such, he argues that an adult convicted as a disorderly person for the same conduct could receive no more than a six months’ sentence. N. J. S.-A. 2A:169-4. The juvenile, however, acknowledges that the adult could not be sentenced to the same institution the juvenile was committed to nor receive the same treatment.

In addition, the juvenile relies on In re Brown, supra, No. 17, 997 (3 Cir., July 10, 1970), an unreported opinion. The case was reargued and a reported opinion followed. In re Brown, 439 F. 2d 47 (3 Cir. 1971). A 14-year-old juvenile was convicted of petit larceny and committed to the Department of Social Welfare of the Virgin Islands until his eighteenth birthday. The juvenile filed a petition for the right to appeal from the judgment, alleging five grounds of appeal. The District Court denied his petition for leave to appeal. Under the Virgin Islands law, a juvenile has a right to appeal only upon leave granted. The juvenile appealed to the Circuit Court of Appeals from this denial. The issue before the court was whether or not the juvenile was denied his constitutional right to due process and equal protection by the denial of a right to appeal. The court held that the denial of that right was a violation of the equal protection clause. The holding is of no help to the juvenile before us.

In Smith v. State, supra, 444 S. W. 2d 941, the juvenile had argued that the strict approach to the equal protection issue should apply to the situation in which a juvenile is deprived of his liberty for an extensive period. Under this approach the statute would be subject to strict scrutiny and the burden would be on the State to show a substantial, empirically grounded justification to support the differentiation. The court discussed this and said that a classification based on age is not per se suspect. The court then said:

It might persuasively be argued that a statute which permits longer confinement of children does impinge on fundamental personal liberties, although, in the area of criminal law, courts have traditionally allowed legislatures considerable leeway in classifying offenses and offenders for sentencing purposes. Apparently, it has not been thought that the possibility of a longer period of confinement, standing alone, calls for a strict standard of review.
If the purpose of permitting longer periods of detention for children was to punish youthful offenders more severely than adult criminals, the application of a strict standard of review would seem justified. But where the legislative purpose is to benefit the affected class, a less strict standard would seem proper. We are familiar with the literature reflecting disillusionment concerning the practical administration of the rehabilitative ideal, and the burgeoning literature of criticism of the juvenile system in this country. But, as the Texas Supreme Court pointed out only a few days ago, “while we must accept as true much of the dismal picture painted in G-ault as to the abuses of the juvenile system, we cannot condemn out of hand the Texas Youth Council, the juvenile judges, and other trained people working in this field. The policy of the juvenile laws has been fixed by the Texas legislature and we conceive it to be our duty to uphold the spirit of that law * * The purpose of the juvenile laws is benign, rather than invidious. Whether the law is actually beneficial to the affected class is a question which is not susceptible of easy judicial determination. The determination of the beneficial effects of our system depends, at least in part, on complicated factual judgments of whether a juvenile program helps or impedes the salvation of child offenders. It is not necessary, in this case, to hold that the required judgment is of the sort that should be left to the political processes. But we do hold, in the absence of at least some data indicating that the legislative promise of treatment rather than punishment is not, in fact, being kept, we should' not attempt, by a reasoning process alone, to determine whether the promised benefits are, in fact, being accorded to juvenile offenders.
If, in fact, in Texas the term “training school” is but a euphemism for prison; if the promised “treatment” consists of nothing more than confinement and disciplinary measures not substantially different from those characteristics of our adult penitentiaries; if, in fact, what is called rehabilitative treatment is indistinguishable from ordinary penal confinement in caged and demoralizing idleness, then, perhaps, a court would not be unwilling to cut through the verbal camouflage and condemn the system because of the exposed realities. But the record before us is bare of an indication that the promise of treatment and rehabilitation has been broken, and that the legislative declaration of purpose is no more than cant and hypocrisy used to justify what is essentially a system that does no more than provide longer terms of imprisonment for children, [at 947-948]

The Court affirmed the judgment of the trial court.

See also R. R. v. State, supra, 448 S. W. 2d 187.

We prefer to follow Smith v. State, supra. In our opinion its reasoning is persuasive, whereas In re Wilson, supra, is distinguishable on its facts.

The strict test of equal protection is not applicable.

The classification established by the Legislature for disposition of violators of criminal statutes based upon age (N. J. S. A. 2A:4-37) does not violate the equal protection clause of the Fourteenth Amendment.

VI

Aside from the foregoing we point out that the juvenile in this case was not committed to the Youth Correctional Institution Complex for being under the influence of a narcotic drug. He was found to be delinquent for that violation. His commitment, however, was based not so much on the finding of that violation but rather on his entire record as shown by the probation department presentence report. That report disclosed that he had been placed on probation on December 2, 1968 charged with general incorrigibility. Since that time he had made little or no adjustment to probationary supervision. He had been before the court on numerous occasions for delinquent behavior. On July 16, 1969 he was charged with assault and battery and escape from the custody of the police. On that occasion he was adjudicated a delinquent and received a suspended sentence to Annandale, with the probation officer to arrange placement at Highfields. He was dismissed from Highfields because of his failure of adjustment. He then received 30 days’ detention. Following his release from detention his behavior had deteriorated to such an extent that he was an habitual user of heroin and was involved in two new complaints. The report further showed that from conferences with his mother it was learned that she was unable to control him around the house.

Subject continues to use hard drugs and has failed to attend the Plainfield Narcotics Clinic, when suggested by the probation officer. Subject continues to associate with delinquent youths within the Plainfield area and it is the opinion of this officer that if the subject is not incarcerated on these two complaints that he will become involved in the future. In summary, subject has received full benefit of the probationary supervision and it is the opinion of this officer that further probationary supervision would not suffice m this case.

We are aware that in practice commitment is ordered by Juvenile Court judges only as a last resort. It is ordered where it is found that if the juvenile is not committed he would constitute a danger to himself or a danger to society; or where it is found that the juvenile is in serious need of rehabilitation which he cannot receive in the environment in which he is living even under probationary supervision, and other feasible means of help have been exhausted.

The issue tendered by the juvenile in this case is a false issue. He was not committed for an offense for which an adult could be committed for only six months. He was committed upon being found a juvenile delinquent in need of rehabilitation which he could not receive in the environment in which he was living even with probationary supervision, other feasible means of help having been exhausted.

YII

Juvenile further argues that to incarcerate juveniles with adult offenders violates N. J. S. A. 2A:4-33 and is in contravention of Johnson v. State, 18 N. J. 422 (1955), cert. den. 350 U. S. 942, 76 S. Ct. 318, 100 L. Ed. 822 (1956). This argument was not presented to the trial court.

On Pebruary 5, 1971 this court ordered the juvenile released pending disposition of the appeal. Since that time he has pleaded guilty to a charge of breaking and entering. Commitment was suspended and on July 31, 1971 he became a member of the Job Corps in Clearfield, Utah. We were informed at the oral argument that he is still there.

We decline to consider this issue because no record was made below and also because as to this juvenile it is now moot, he being over the age of 18 years.

The order denying the motion is affirmed.


author: Leonard, J. A. D.

text:
    DOMINICK DONATO, TRADING AS DONATO FUNERAL HOME, PLAINTIFF-APPELLANT, v. GRACE J. MASON, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued October 5, 1971
    Decided October 29, 1971.

      Before Judges Sullivan, Leonard and Carton.

      Mr. Joseph J. Triarsi argued the cause for appellant (Messrs. Pisano & Triarsi, attorneys).

      Mr. Howard R. Popper argued the cause for respondent.
   The opinion of the court was delivered by

Leonard, J. A. D.

Plaintiff, a funeral director, appeals from a judgment of dismissal of its complaint for professional services and cash disbursements totalling $2019.

Joseph C. Mason died on March 10, 1970. Prior to his death he told Ms brother-in-law, Angelo Bove, that he wanted his funeral arrangements to be handled by plaintiff, Bove’s brother-in-law. Upon Mason’s death Bove told plaintiff to pick up the body of the deceased and to proceed with the necessary funeral arrangements. Bove stated that he had contacted defendant, decedent’s widow, and she told him to make those arrangements “on her behalf.”

At about 8:30 that evening plaintiff called defendant, who first told him to come to his home to make the arrangements. Later, she called Bove and told him that he should make the necessary arrangements, as she was too tired. Plaintiff testified that defendant told him, “Bove was to handle the entire matter for her.” lie conceded, under 'cross-examination, that defendant at no time promised to pay for the funeral.

Thereafter, a bill for services rendered was tendered to the “Estate of Joseph C. Mason c/o Mrs. Mason.” Plaintiff further testified that defendant called him and told him that decedent’s sister, Mrs. Bove, was responsible for the bill as next of kin.

The testimony disclosed that decedent left as his estate only a balance of $635 in a checking account and accrued salary and vacation pay in the sum of $928.38. The total of these two items, $1564.38, was received by defendant as the surviving spouse.

Decedent also left two insurance policies, one in the sum of $27,000 payable to defendant and one in the sum of $10,000 payable to his sister, Mrs. Bove.

Under the existing law, although a surviving husband is primarily liable for the funeral expenses of his deceased wife, Stryker v. Sands, 4 N. J. 182, 188 (1950) ; DeLisle v. Reeves, 96 N. J. Eq. 416, 418 (E. & A. 1924), a surviving wife is not personally liable for the funeral expenses of her deceased husband. 41 C. J. S. Husband and Wife, § 340 at 827; 41 Am. Jur. 2d, Husband and Wife, § 380 at 318. It is well settled that the reasonable and necessary expenses of providing an appropriate funeral for him are primarily chargeable to his estate. Quinn v. Koeck, 95 N. J. Super. 467, 470 (App. Div. 1967). See Haeberle v. Weber, 56 N. J. Super. 428 (Law Div. 1959).

Perhaps, in light of the present-day legal and social status of married women, the above common-law rule should be modernized so that the liability of either surviving spouse is the same. However, it is not necessary for us to make that determination in order to do justice in this matter.

As noted above, defendant wife received $1564.38 from the estate of her husband. We find that N. J. S. A. 3A :6-5 does not entitle her to retain that sum free from the funeral expenses. A funeral bill is not a debt of her deceased husband. Rather, it is “a charge which the law levies against the estate, necessitated by the exigencies of the obligation." Haeberle v. Weber, supra, at 431-432. N. J. S. A. 3A:24-2 allows funeral expenses to have first preference out of the estate, even before administration expenses. Consequently, she should have paid the reasonable funeral expenses to the extent of the sum received by her from his estate. Quinn v. Koeck, supra, 95 N. J. Super. at 470. Since she did not, she was unjustly enriched by the retention of that sum and equity mandates that she now pay it to plaintiff. Callano v. Oakwood Park Homes Corp., 91 N. J. Super. 105, 108-109 (App. Div. 1966). We recognize that this concept of defendant’s responsibility was not specifically asserted at trial. However, the underlying facts are undisputed, the equities are clear and no valid purpose would be served by remanding to the trial court.

Reversed, and remanded to the trial court for the entry of a judgment in plaintiff’s favor in the sum of $1564.38.