author: Lynch, J. A. D.

text:
    BOROUGH OF WOODSTOWN AND TOWNSHIP OF PILESGROVE, PETITIONERS-APPELLANTS, v. TOWNSHIP OF LOWER ALLOWAYS CREEK AND PUBLIC SERVICE ELECTRIC AND GAS COMPANY, RESPONDENTS. CITY OF SALEM, TOWNSHIPS OF ALLOWAY AND PITTSGROVE, PETITIONERS-APPELLANTS, v. TOWNSHIP OF LOWER ALLOWAYS CREEK AND PUBLIC SERVICE ELECTRIC AND GAS COMPANY, RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued April 9, 1973
    Decided June 29, 1973.

      Before Judges Fritz, Lynch and Trautwein.

      Mr. George 8. Friedman argued the cause for appellant City of Salem and Townships of Alloway and Pittsgrove.

      Mr. Oakford W. Acton, Jr. argued the cause for appellants Borough of Woodstown and Township of Pilesgrove.

      Mr. William, C. Horner, attorney for respondent Lower Alloways Creek Township, submitted a Statement in lieu of brief.

      Mr. Howard T. Rosen argued the cause for respondent Public Service (Messrs. Rosen and Weiss, attorneys; Mr. Walter G. Reinhard, on the brief).
   The opinion of the court was delivered by

Lynch, J. A. D.

This is an appeal from a decision of the Division of Tax Appeals (Division) which held that an action by a county board of taxation, acting in its “equalization” capacity pursuant to N. J. S. A. 54:3-17 to 19, and purporting to fix the assessment of an individual parcel of real property, did amount to such an “assessment” within the meaning of the statutes governing taxation of such property, and that such action was res judicata so as to preclude any further increase in the assessment of the property when appeals were filed with the county board of taxation pursuant to N. J. 8. A. 54:3-21.

• The appeal herein involves the local property tax assessment for the tax year 1971 upon property owned by Public Service Electric & Gas Co. (Public Service), known as Artificial Island, and adjacent property situate in the Township of Lower Alloways Creek, in Salem County. Consisting of approximately 700 acres in total, the property is being developed by Public Service for a nuclear power plant known as Salem Nuclear Generating Station. The plant site itself consists of 210 acres and is partially surrounded on the north and east by a “buffer zone” of 490 acres, with the Delaware Eiver bordering the site on the west and south. Construction had begun on the project as of the date of the assessment in question, but no permanent buildings had been completed.

During February 1971, the County of Salem, the City of Salem, the Township of Pittsgrove, the Township of Pilesgrove and the Borough of Woodstown (hereinafter called petitioners), filed a notice of objection to the preliminary equalization table promulgated by the Salem County Board of Taxation pursuant to N. J. 8. A. 54:3-17. In their notice they objected to the “aggregate assessed values for the Township of Lower Alloways Creek as shown on the Preliminary Equalization Table, at $5,796,775” (emphasis added). In addition, petitioners objected “specifically” to the assessment of the property known as Artificial Island and surrounding areas, in that the assessment on Block 26, Lot 1-P, being land $16,650 and improvements of $684,800, or a total of $701,450, was grossly below true value. Petitioners then prayed that the county board of taxation “correct and revise its Equalization Table for the year 1971 by revising and increasing the aggregate assessed value for the taxing district Lower Alloways Creek Township.”

The county board of taxation met on March 3, 1971 to consider the foregoing objection. Under date of March 22, 1971 the secretary of the county board of taxation sent a letter to Public Service and the attorneys for the several municipalities saying:

The Salem County Board of Taxation after listening to the facts presented at the hearing held on March 3, 1971 on the Preliminary Table for 1971 and after having visited the above site decided to raise the land assessment on the above property from $80.00 per acre to $1,250.00 per acre for the tax year 1971.

It is noted that the foregoing letter did not relate to all of the property owned by Public Service, but only to the assessment on the plant site land consisting of 210 acres. It purported to increase the assessment thereon from $80 to $1,250 an aere and to raise the total assessment on that land from $16,650 to- $262,500. Since the remaining 490 acres of “buffer” zone was at that time assessed at $5 an acre, the total assessment of all the Public Service land was then $264,950. In any event, so far as appears, the letter is the only evidence of the board’s action on March 22. No judgment as to the assessment of the Public Service property was entered.

If the said action of the county board of taxation on March 22, 1971 were to he legally effective as an “assessment” of the property, said action would have increased the total assessment from $701,450 to $949,750. No appeal from that action was taken by any party. However, prior to August 15, 1971 petitioners filed petitions of appeal with the Salem County Board of Taxation seeking to increase the assessment of the Public Service property. The appeals were grounded in N. J. 8. A. 54:3 — 21 which permits such appeals by a taxing district “which may feel discriminated against * * * by the assessed valuation of property in another taxing district in the county * * *” —- here the Public Service property in Lower Alloways Creek. Pursuant to those appeals the connty board held a hearing and entered judgment increasing the assessment on the 490 acres in the buffer zone from $5 to $400 an acre, making the total assessment in the sum of $1,143,000. Petitioners were still not satisfied with that increase and appealed to the Division of Tax Appeals, praying that the assessment be further increased. Public Service did not appeal from the county board judgment, apparently being satisfied therewith.

In the Division, Public Service made a motion to dismiss petitioners’ appeal to that body. The motion was granted. The rationale of the Division in its decision may be summarized as follows: (a) the county board, by its action of March 22, 1971, adjudicated the “assessment” on the Public Service property to be $949,750; (b) this action was appealable to the Division under N. J. 8. A. 54:2-35; (c) since no appeal pursuant to that section was taken by petitioners, the “action” of the board of March 22, 1971 was res judicata and therefore immune to attack when petitioners filed their appeal to the county board pursuant to N. J. 8. A. 54:3-21, and (d) petitioners were collaterally estopped by their failure to appeal from the action of the county board of March 22, 1971, and the judgment of that board on appeal increasing the assessment to $1,143,300 was a nullity.

In our consideration of the decision below the issue comes down to this: did the county board’s action of March 22, 1971 effectively adjudicate the “assessment” .of the Public Service properly? Assuming for the purpose of discussion that such action of the: county board did constitute an “assessment,” it was not — contrary to. the decision of the Division below — appealable to the Division of Tax Appeals pursuant to N. J. 8. A. 54:2-35. In Hackensack Water Co. v. Division of Tax Appeals, 2 N. J. 157 (1949), the statutory scheme was delineated as follows:

The right of appeal to the Division of Tax Appeals is purely statutory and the appellant is required to comply with all applicable statutory requirements. R. S. 54:4-35 requires an assessor to file his complete assessment list or duplicate on or before January 10th of the year following the assessing date. R. S. 54 :4-46, 47 requires the County Board of Taxation to examine, revise and correct the assessor’s tax list and duplicate, and by virtue of R. S. 54:4-55 it must certify to the tax collector the “corrected, revised and completed duplicate * s" on or before April 1st.” [now May 1], The assessments levied on the property in the assessor’s duplicate are not complete until the County Board certifies the assessor’s duplicate to the tax collector. Middletown Township v. Ivins, 102 N. J. L. 36 (Sup. Ct. 1925).
The section of the Tax Act, R. S. 54:3-21, permits a taxing district “which may feel discriminated against by the assessed valuation of property” to appeal to the County Board of Taxation on or before August 15th. But a municipality cannot determine if it is discriminated against until after the assessment is corrected, revised and completed because until then the amount of the assessment is unknown.
Jt can thus he seen that the purpose of requiring a County Board of Taxation to certify the completed duplicate on or before April 1st [sic] is to afford an appellant ample time to prepare and file a petition for appeal with the County Board of Taxation before August 15th, the time limited for filing appeals.
R. S. 54:2-39 authorizes an appellant, dissatisfied with the judgment of the County Board, to appeal to the Division of Tax Appeals. This all spells out the progressive theme of the Tax Act, and it is clear there can be no appeal except from a judgment of the County Board. This is the obvious legislative policy as expressed in the statutes.
But it is contended by respondent that R. S. 54:2-35 gives to the taxing district the right to appeal a local assessment direct to the Division of Tax Appeals. This statute is a general provision while R. S. 54:3-21 and R. S. 54:2-39 are specific. The inclusion of section 54 :2-35 in the Revision of 1937 was obviously not intended to modify the specific provisions of sections 54:3-21 and 54:2-39 relating to appeals such as we are here concerned with. We are satisfied this was the legislative intent, which must govern.
The entire legislative scheme is to provide a review of assessment valuations, on appeal of either the taxpayer or taxing district, first in the County Board, and secondly in the State body. This was the holding of the former Supreme Court in Kenilworth v. Board of Equalisation, 78 N. J. L. 302 (Sup. Ct. 1909), in which case the court was construing section 10 of the County Board Act of 1906. This section is the source of R. S. 54 :2-35 which, as said, respondent contends gave it the right of appeal direct to the Division of Tax Appeals and upon which the court below relied.
There are two unreported former Supreme Court decisions, Pusey and Jones Co. v. State Board (Sup. Ct. 1921) and Scott v. Board of Equalization of Taxes (Sup. Ct. 1913), which repudiate the possibility of a direct appeal to the Division of Tax Appeals without an intervening appeal first to the County Board.
If R. S. 54:2-35 gave the right of appeal direct to the Division of Tax Appeals then R. S. 54:3-21, a later enactment, is a useless piece of legislation, for if there is available to -either a taxpayer or a taxing district such a direct review then either party could by-pass the County Board and destroy its function of exercising its appellate capacity and thus nullify the progressive theme of the Tax Act.
This leads us to the conclusion that the respondent township had no right of appeal direct to the Division of Tax Appeals; that this tribunal had only jurisdiction to review action by the County Board of Taxation sitting in its appellate capacity; * *. [At 164-166]

Therefore, petitioners were not collaterally estopped from taking their appeal to the county board under N. J. S. A. 54:3-21.

As stated above, the foregoing is said only upon the assumption that the action of the county board on March 22 did constitute an adjudication of the “assessment.” It did not, nor could it be such. The assessor’s assessment list and his duplicate must be filed by the local assessor with the county board of taxation by January 10 of the assessment year. N. J. S. A. 54:A-35. But the assessment is not complete until the County Board certifies the assessor’s duplicate to the Tax Collector. Haclcensack Water Co. v. Division of Tax Appeals, supra; Baldwin Construction Co. v. Essex County Board of Taxation, 24 N. J. Super. 252 (Law Div. 1952), aff’d 27 N. J. Super. 240 (App. Div. 1953); White House Hotel, Inc. v. Lakewood Tp., 53 N. J. Super. 532 (App. Div. 1959); Maplewood Tp. v. Essex County Bd. of Taxation, 39 N. J. Super. 202 (App. Div. 1956); Gualano v. Bd. of Estimate of Elizabeth School Dist., 72 N. J. Super. 7 (Law Div. 1962); aff’d 39 N. J. 300 (1963). Such certification is done on or before May 1 (N. J. S. A. 54:4-55), after the county board has met to examine, revise and correct the-lists (N. J. S. A. 54:4-46, 47). Since, therefore, the assessment for the year 1971 of the subject property was not yet complete when the action of March 22 was taken — and could not have been completed until certification of the duplicate by the county board of taxation on April 10 — simple logic dictates that the action of the connty board on March 22, 1971, did not constitute an “assessment” of the Public Service property.

In any event, when the county board of taxation met on March 3, 1971 to hear petitioners’ claim that the ratables in the Township of Lower Alloways Creek were too low, and thus that that township would avoid its fair share of county taxes, the connty board was acting in its “equalization” function pursuant to N. J. S. A. 54:3 — 17 and 18. In Essex Cty. Park Comm’n v. Bd. of Chosen Freeholders, 58 N. J. Super. 93 (App. Div. 1959), it was said:

The sole and fundamental purpose of equalization is the equitable apportionment of the amount to be raised in the respective taxing districts for state, state school, county and free connty library purposes, and for purposes of regional and consolidated school districts and school districts comprising two or more taxing districts.
The legislative purpose in enacting the equalization statutes was clearly to limit the use of the equalization table to apportionment situations. As the Law Division judge observed, the present ease is not one of apportionment. Apportionment of the tax burden takes place only after the total amount of revenue that must be raised by the county has been determined. Then, and only then, is the tax burden apportioned among the several taxing districts according to the equalization table. [At 102]

Iii that case, since no problem of apportionment of tax burden was there involved, the court rejected the equalization table adopted by the connty tax board as a measure for determining the amount which could be spent for maintenance of the county park system. So here. The “assessment” of the Public Service property does, not involve “apportionment,” and the action of the county board in its equalization function on March 22, 1971 is irrelevant to that assessment. Thus in Passaic v. Passaic Cty. Bd. of Taxation, 18 N. J. 371 (1955), it was said (at 380) with respect to the action of the county board in exercising its equalization function : “* * *the increase or decrease of an aggregate of real estate assessments does not result in the change of any individual real estate assessment included in it.” (Emphasis added). And more recently it was said in Willingboro Tp. v. Burlington Cty. Bd. of Taxation, 62 N. J. 203:

The stated equalization function of the county boards does not in any way affect individual tax assessments against property owners. Those are required to be separately revised and corrected administratively by the county boards after receipt of the lists from the local assessors (N. J. S. A. 54:A-46, 47), and are subject to further revision and correction on appeal to the county boards and the State Division of Tax Appeals. [At 208]

See also Totowa v. Passaic Cty. Bd. of Taxation, 5 N. J. 454 (1950).

Public Service also contends that petitioners “may not contest the fair value of an individual assessment in another taxing district once the equalization table has become final.” Thus it is said petitioners had no right to appeal to the county board under N. J. 8. A. 54:3-21. No authority is cited for that proposition, but the reasoning projected in support is that since the county taxes had already been apportioned in the equalization process, petitioners had nothing to gain in the event that their appeals were to result in increasing the assessment of the subject property. That does not necessarily follow. Presumably any such increase will be reflected in the equalization tables for the following and subsequent years, with resultant decrease in petitioners’ share of county taxes and other costs dependent Pn such tables. If not so reflected, petitioners have the right to challenge the tables. N. J. 8. A. 54:2-37 and 35. In any event, to adopt Public Service’s reasoning would be to'-nullify the plain language of N. J. 8. A. 54:3-21 which clearly authorizes the filing of appeal up to- August 15 by a taxing district which may feel discriminated against “by the assessed valuation of property in another taxing district.” Thus, such a taxing district is permitted to file such appeals more than five months after the equalization process has been completed by the statutory date of March 10. N. J, S. A. 54:3-18.

We therefore hold that the action of the county board in its equalization capacity of March 22, 1973 was not an adjudication of the “assessment” of the Public Service property and was not res judicata as to the assessment. To regard its action as such would be a complete distortion of the orderly functions of assessment and review as laid down by our tax statutes. It follows that the decision of the Division in dismissing petitioners’ appeals for the year 1971 must be reversed. The matter is remanded to the Division for prosecution and hearing of said appeals seeking an increase of the assessment above the $1,143,800 fixed by the county board in its judgment on November 4, 1971.

We do not retain jurisdiction.

      The County of Salem is no longer a party to this proceeding.

      But, as will be demonstrated below, the action of the county board on March 22, 1971 did not legally constitute an “assessment” of the property.

      It is noted that the county board judgment of November 4, 1971, rendered in its appellate capacity, recites slightly different figures, i. e., land $264,650, improvements $684,800, total $949,450.

      As the Division said below, the judgment of the county board at $1,143,300 is unchallenged by Public Service and, said the Division, since Public Service “is content with the larger assessment, we are not moved to disturb it.” Thus a judgment of the county board, which purportedly it had no power to render, according to Public Service’s argument, is left undisturbed by it. A strange result when one considers the assessment desideratum of establishing true value.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    EISLER & COMPANY, APPELLANT, v. STATE OF NEW JERSEY, RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Submitted June 11, 1973
    Decided June 29, 1973.

      Before Judges Lora, Allcorn and Handler.

      Mr. Michael S. Sodowick, attorney for appellant (Mr. Charles V. Litt on the brief).

      Mr. George F. Kugler, Jr., Attorney General of New Jersey, attorney for respondent (Mr. Stephen Skillman, Assistant Attorney General of counsel; Mr. Jonathan Weiner, Deputy Attorney General on the brief).
   Per Curiam.

Eisler & Company is a member of the Tobacco Distributors Association of New Jersey, which was notified by the New Jersey State Department of Health that its members engaged in the wholesale distribution of food and cosmetics are subject to the licensure requirements of L. 1971, c. 158; N. J. 8. A. 24:15-13 and 14. Appellant contends that it is exempt from those requirements because it is registered pursuant to N. J. S. A. 24:6B-1 et seq.

There appears no dispute that appellant is engaged in the wholesale distribution of food, drugs and cosmetics: and commencing in 1964 it transmitted to the Department a registration statement pursuant to N. J. 8. A. 24:6B-1 el seq. with respect to its drug distribution activities, and that approximately 3% of its total gross annual volume of business relates to its drug activities. The Department accepted and filed this registration statement and it has subsequently been renewed.

As the operator of a “drug establishment,” as defined in N. J. 8. A. 24:6B~12(f) and (g), appellant was required to comply with the provisions of N. J. 8. A. 24:6B~1 el seq., including the filing of a registration statement and the payment of the specified fees. The activities of appellant in this respect are the subject of particular regulations under the Division oE Environmental Health which include “[m] airing a sanitary and quality control inspection of all New Jersey drug manufacturing businesses and selective wholesale drug businesses, registered in compliance with N. J. S. A. 24:6B * * *.” N. J. A. C. 8:21-3.2(b).

The Legislature in 1971 supplemented chapter 15 of Tille 24 of the Revised Statutes by providing that “every establishment falling within the scope of [that] chapter shall be licensed by the Commissioner of Health with a fee to be charged therefor * * *.” L. 1971, c. 158, § 1. The establishments included within chapter 15 were any “food establishment,” “drug establishment” and “cosmetic establishment.” N. J. 8. A. 24:15-1. The 1971 supplement provided further that the license otherwise required need not be secured by an establishment “the activities of which are subject to licensure pursuant to any other provisions of this Title or to inspection and licensure by a local department of health.” N. J. 8. A. 24:15-13 (emphasis added).

It seems reasonably clear that by the enactment of N. J. 8. A. 24:15-1 et seq., as supplemented, the Legislature did not intend to supplant the regulatory scheme applicable to a drug business covered by N. J. 8. A. 24:6B-1 et seq. While regulations envisaged by each of these titles to some extent overlap, N. J. 8. A. 24:6B-1 et seq. concerns itself solely with entities engaged in the drug manufacturing and wholesale business, and with particular activities of such establishments which are not the direct concern of N. J. 8. A. 24: 15-1 et seq.

While chapter 15 is sufficiently broad to embrace drug enterprises, its primary thrust is to control and regulate food and cosmetic manufacturing and wholesale establishments. This is evinced by the statement accompanying the bill as well as by its administrative implementation.

Moreover, N. J. 8. A. 24:15 — 14 provides for the imposition of “reasonable fees for any service performed in the licensing and inspection of any premises coming within the provisions of this chapter.” The license fees adopted by the Department pursuant to this statutory directive relate only to an establishment conducting a wholesale food or cosmetic business. N. J. A. Q. 8:21 — 9.5 The fee imposed by N. J. 8. A. 24:6B-4 upon registrants which are engaged in the manufacture or wholesale of drugs constitute a separate charge referable to- distinct services rendered by the Department with respect to those firms.

These considerations lead us to conclude that the Legislature, in the enactment of N. J. 8. A. 24:15-13 and 14 as a supplement to Title 15, did not intend to exempt from licensure thereunder those establishments engaged in substantial food and cosmetic activities because they were otherwise registered by virtue of their drug business under N. J. 8. A. 24-.6B-1 et seq.

Affirmed.


author: Leonard, J. A. D.

text:
    SALVATORE CALTAVUTURO, AN INFANT BY HIS GUARDIAN AD LITEM, CATENO CALTAVUTURO AND CATENO CALTAVUTURO, INDIVIDUALLY, PLAINTIFFS-APPELLANTS, v. CITY OF PASSAIC, A MUNICIPAL CORPORATION, BOARD OF EDUCATION OF THE CITY OF PASSAIC, A BODY POLITIC AND CORPORATE, AND SEYMOUR PUCKOWITZ, DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued April 23, 1973
    Decided July 2, 1973.

      Before Judges Leonard, Halpern and Rizzi.

      Mr. Daniel Crystal argued the cause for appellants (Messrs. Cohn & Lifland, attorneys).

      Mr. David L. Ploshniclc argued the cause for respondents Board of Education of the City of Passaic and Seymour Puckowitz (Mr. Samuel A. Gennet, attorney).

      Mr. William G. Scott argued the cause for respondent City of Passaic (Messrs. Lieb, Teich, & Berlin, attorneys).
   The opinion of the court was delivered by

Leonard, J. A. D.

This is an action in negligence to recover damages for injuries; sustained by infant plaintiff Salvatore Caltavuturo when he stepped through a large hole in a rusted chain-link fence partially surrounding Passaic public school 11, which he attended.

Suit was originally brought by Salvatore through his father Cateno as guardian ad litem and by his father individually against the City of Passaic (Passaic) only, alleging that the city was negligent in maintaining the area in and around the fence to which it held title. Thereafter Passaic served a third-party complaint against the Board of Education of the City of Passaic (board) and Seymour Puckowitz, the principal of public school 11, seeking contribution and indemnification. Plaintiffs then served an amended complaint naming the city, the board and Puckowitz as parties defendant.

The matter came on for jury trial and at the conclusion of plaintiffs’ ease, on motion, the action was dismissed as to all defendants. The board and the principal were relieved of liability by the trial court on the ground that Salvatore was not injured on school property and, in any event, neither the board nor Puckowitz owed a duty of care to him under the circumstances presented. Further, even if a duty were owed, plaintiffs’ proofs were insufficient in establishing a deviation from the norm. As to Passaic, the court determined that its activity in connection with maintaining the fence was governmental in nature and, alternatively, N. J. S. A. 40:9-2, then in effect, specifically immunized Passaic from liability. Plaintiffs’ appeal raises claims of error in the dismissal ordered with respect to all defendants.

Plaintiffs’ evidence, taken in its most favorable light, disclosed that on December 12, 1968, the date of the occurrence in question, the approximately 1,500 students of public school 11 were dismissed to go home for lunch at 11:40 a.m. since food is not available on the premises. Puckowitz, called as plaintiffs’ witness, testified that at the time students were dismissed for lunch and when they reported back to school, two gym teachers, two vice-principals and he stationed themselves on the playground which was divided into several supervisory areas. Normally, by 11:55 a.m. all children had left the school grounds and the administrative staff returned to the school from the playground to eat a quick lunch.

Salvatore, then 12 years of age, was a school crossing guard. He, as well as all members of the school patrol, were excused at 11:35 in order to assume their respective posts. On the day in question he assisted several children across an intersection of two streets fronting the school.

Shortly before noon, following completion of his crossing-guard duties, Salvatore and a friend started home for lunch. As a shortcut tire boys re-entered a playground area which adjoined the school through a six-feet wide by eight-feet high hole in the chain-linked fence which enclosed the playground on one side. Salvatore cut his right knee on a jagged, rough-edged portion of the fence causing his leg to become inflamed. Eventually, Salvatore developed osteomyelitis, a permanent bone disease.

The fence is mounted on a concrete base which varies in height from a few inches to over two feet. At the point Salvatore was injured there is a two-foot drop from the sidewalk to the concrete yard below. Originally the fence completely enclosed several tennis courts. Although painted boundary lines remain visible, there was testimony from the street foreman of Passaic’s Department of Public Works that approximately 12 years previously the nets were taken down and the holes caused by the removal of the poles to which the nets were attached filled in. Since that time the school has routinely used the area as a playground. No natural dividing line exists indicating where school property ends and municipal-owned land begins. Indeed, prior to Salvatore’s accident Puckowitz did not know whether the board or Passaic owned the property in question. The street foreman further testified that although Passaic’s maintenance personnel “constantly” repaired the fence, new holes, cut by children using pliers, would almost immediately appear upon completion of the repairs.

Passaic’s answers to plaintiffs’ written demand for admissions were read into the record. Therein it admitted that prior to the accident it had actual knowledge that large holes in the fence surrounding the former tennis court area were used as passageways by school children and others; that links of the fence had become corroded, cut and jagged; and that the portion of the fence which was the situs of the accident had fallen into disrepair. In fact, so often did children cut new paths through the fence that, according to the testimony of the senior maintenance man employed by Passaic, a quarter of the fence was removed by him (although the stanchions remain) because “it just didn’t pay to repair it any more.” Admittedly, Passaic did nothing to discourage people from walking through holes in the fence; no signs were posted or other preventive steps taken.

Puckowitz testified that he, too, was aware of the holes and acknowledged that the condition of the fence needed improvement. Although the use of the holes in the fence by school children was considered a problem by him and the topic was discussed amongst the supervisory staff, no remedial action was taken. Inconsistent with his previous testimony, that he did not know who owned the fence prior to Salvatore’s injury, Puckowitz later stated that no such steps were initiated because the fence belonged to the city. Puckowitz testified that he had direct responsibility for the safety of the children.

Plaintiffs first contend that the court erred in dismissing defendant Puckowitz from the case. We agree. Our review of the record convinces us that plaintiffs’ evidence properly presented a triable jury question on the issue of the school principal’s negligence.

In this State the duty of school personnel to exercise reasonable supervisory care for the safety of students entrusted to them, and their accountability for injuries resulting from failure to discharge that duty, is firmly established. Jackson v. Hankinson and Bd. of Ed., New Shrewsbury, 51 N. J. 230, 235-236 (1968); Titus v. Lindberg, 49 N. J. 66, 73 (1967). This duty may be violated, not only in the commission of acts but also in a neglect or failure to act. Id. at 74. The standard of care imposed upon school personnel in carrying out this duty to supervise is that degree of care which a person of ordinary prudence, charged with comparable duties, would exercise under the same circumstances. Dailey v. Los Angeles Unified School District, 2 Cal. 3d 741, 87 Cal. Rptr. 376, 470 P. 2d 360, 363-364 (Sup. Ct. 1970).

Defendant Puckowitz concedes the validity of the foregoing principles but questions their applicability to the facts presented. He stresses that Salvatore was injured at a time when the duty to supervise had temporarily ceased and at a place where such duty did not extend. He further contends that even if such a duty exists, it was discharged by his actions in assigning school personnel to the playground during lunchtime and other similar precautions.

That Salvatore was injured off school property at a time when the school staff unilaterally decided that the necessity for supervision had dissipated are not facts which, in our view, materially distinguish this case from Titus. It cannot be said as a matter of law, under the circumstances here presented, that Puckowitz’ legal responsibility continued only for the first and last minutes of the lunch period but not in between, or that his supervisory duties extended only so far as the municipal boundary line and not beyond. See Titus v. Lindberg, supra, 49 N. J. at 75. Utilization of the tennis court area was such that for all practical purposes it formed an integral part of the school grounds to which the duty to supervise fairly extended. Independent of any duty owed by Passaic, Puckowitz owed a supervisory duty to students who were openly invited to make use of the playground area during the lunch recess to take reasonable precautions for their safety. Negligence is related to awareness of a recognizable risk of harm. Latzoni v. Garfield, 22 N. J. 84, 92 (1956); Harpell v. Public Service Coordinated Transport, 20 N. J. 309, 316 (1956). Thus, under the totality of the evidence adduced, a jury question was generated as to a breach of the duty owed by Puckowitz to his students.

By reason of the foregoing, the trial court’s dismissal of the board must likewise be reversed since it is not disputed that defendant Puckowitz was acting within the scope of his employment, and in the event he is found liable to plaintiffs, the board would be obligated under N. J. S. A. 18A.T6-6 to pay the judgment for him. See Titus v. Lindberg, supra, 49 N. J. at 79-80.

In their attack upon the dismissal below in favor of Passaic plaintiffs argue that the claimed immunity of N. J. S. A. 40:9-2, which became N. J. S. A. 40A:12-26 before it was finally repealed by N. J. S. A. 59:12-2, does not apply. The statute in question, N. J. S. A. 40:9-2, provided:

No municipality or county shall be liable for injury to the person from the use of any public grounds, buildings or structures, any law to the contrary notwithstanding.

We concur in plaintiffs’ contention that Salvatore’s injury cannot properly be said to arise from his use of any public ground or structure within the purview of the statute. See Coleman v. Edison Tp., 95 N. J. Super. 600, 605 (App. Div. 1967). We find Fahey v. Jersey City, 52 N. J. 103 (1968), factually inapposite and accordingly hold that N. J. S. A. 40:9-2 does not bar plaintiffs’ cause of action.

Passaic argues that even in the absence of the statute it would be immune from liability under the judicially-forged doctrine of general governmental tort immunity. We think that Passaic’s liability is not thus limited.

Recently there has been a judicial shift toward frank recognition that municipal entities should justly be held accountable for injuries resulting from their tortious acts and omissions under ordinary principles of negligence, except, as a matter of policy, in situations involving so-called discretionary determinations. Jackson v. Hankinson and Bd. of Ed., New Shrewsbury, supra, 51 N. J. at 235. See also Willis v. Dept. of Conservation & Economic Development, 55 N. J. 534, 540-541 (1970). Applying this standard, we find ample basis in the evidence from which a jury could draw an inference of negligence, historically referred to in this context as active wrongdoing. See Jackson v. Hankinson and Bd. of Ed., New Shrewsbury, supra, 51 N. J. at 23A-235; Hayden v. Curley, 34 N. J. 420, 424-427 (1961). The record indicates that Passaic had actual knowledge through its agents of the condition of disrepair of the fence and had made repairs, only to have new holes appear therein. Thus, plaintiffs are entitled to have a jury determine if there was affirmative, negligence on Passaic’s part in taking ineffectual steps to remedy a known defective condition on its properly. See e. g., Taverna v. Hoboken, 43 N. J. Super. 160 (App. Div. 1956), certif. den. 23 N. J. 474 (1957). We do not perceive that the alleged negligence here involved consisted of that type of discretionary governmental policy determination which is immune from tort liability. See Elgin v. District of Columbia, 119 U. S. App. D. C. 116, 337 F. 2d 152, 154-157 (D. C. Cir. 1964). In this connection, it may be noted that effective July 1, 1972 a municipal entity may be held liable for a defective condition on its property. N. J. 8. A. 59 :á — 2.

The judgment of the Law Division ordering the dismissal of plaintiffs’ action is reversed and the matter is remanded for a plenary trial as to all defendants on all issues in accordance herewith.


text:
    LAY FACULTY ASSOCIATION OF REGIONAL SECONDARY SCHOOLS OF THE ARCHDIOCESE OF NEWARK, PLAINTIFF-RESPONDENT, v. ROMAN CATHOLIC ARCHDIOCESE OF NEWARK, A NEW JERSEY CORPORATION, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Orginial opinion filed February 2, 1973
    Supplemental opinion filed June 29, 1973.

      Before Judges Kolovsky and Matthews.
   Per Curiam.

In our prior opinion we directed that defendant file a petition for an advisory opinion with the National Labor Relations Board (N. L. R. B.) with a response thereafter to be filed by defendant. We ruled that:

If the advisory opinion of the Board concludes. that it would assert jurisdiction over the dispute, then the court will enter an order reversing the judgment below. However, if the Board concludes that it would not assert jurisdiction, ^ * * then we shall enter an order affirming the judgment appealed from. We shall do so because we are satisfied that none of the other six points argued by defendant, which we shall discuss, would warrant a reversal of the judgment. [122 N. J. Super, at 273]

Pursuant to our direction defendant filed a petition for an advisory opinion with the N. L. R. B. on February 22, 1973. Plaintiff filed an answer thereto on March 1, 1973. On March 5, 1973 the Regional Director for Region 22 of the N. L. R. B. filed a motion to intervene, and on March 12, 1973 defendant filed a response to the Regional Director’s motion and to plaintiff’s answer.

Because the “Advisory Opinion” of the N. L. R. B., dated June 14, 1973, refers thereto, we interpolate to comment that the Regional Director’s motion referred to two cases involving defendant Archdiocese which ho had had before him and the “commerce” information with respect to the Archdiocese which he had then obtained.

The first ease was instituted by a petition filed on March 17, 1969 by John Tiedemann Incorporated alleging that it performed services valued in excess of $50,000 a year for the Archdiocese and charging that a painters’ union was engaging in unlawful picketing. The case was closed by an “informal settlement agreement to which the Archdiocese was not a party.”

The second case was instituted on April 16, 1972 by a petition filed by a cemetery workers’ union claiming to represent employees of the Archdiocese employed at one of the cemeteries owned by it. The Regional Director’s motion recited the information he had then obtained as to the activities, revenues and purchases of the Archdiocese and then concluded :

As a result of the investigation, and noting that the cemetery activities, including limitation of burials to Roman Catholics and members of their families, were intimately connected with the religious activities of the Roman Catholic Church, it was concluded that it would not effectuate the purposes of the Act for the Board to assert its jurisdiction. Accordingly, the undersigned dismissed the petition on April 27, 1972. Petitioner did not appeal.

On June 14, 1973 the N. L. R. B. entered an order, captioned “Advisory Opinion,” in which, after noting that the Regional Director’s motion to intervene “set forth commerce information developed in the course of his investigation of the unfair tabor practice charge in Case 22-CP-126 and the representation petition in Oase 22-RC-1289,” it granted his motion.

The Advisory Opinion then detailed a history of the litigation between the parties, as well as a summary of defendant’s activities and its contentions, including its argument that

* * * the Board should advise that it would assert jurisdiction because the revenues and operations of the schools meet any of the Board’s jurisdictional standards and have a substantial impact on interstate commerce,

and then concluded as follows:

On the basis of the foregoing the Board is of the opinion that:
As indicated above, the Union won the court-directed representation election conducted on June 4, 1971, and thereafter on July 22, 1971, the state court entered its final judgment, directing the Employer to bargain. Although the Employer appealed to the Appellate Division, it complied with the state court’s direction to bargain. As a result, on June 14, 1972, the Employer and Union entered into an agreement subject to the appeal. Presumably, the parties are complying with and acting pursuant to the provisions of the agreement. On .February 22, 1973, the Employer, at the direction of the Appellate Division, petitioned for advisory opinion. The state court-directed representation election had. been conducted nearly 2 years ago, and a year later, as a result of bargaining between the Employer and Union, an agreement was executed under which the parties presumably have been operating for nearly a year. In these circumstances and in view of our policy of according the same effect to a state-directed election and certification as we do to our election and certifications, xoe would not entertain a representation petition involving the employees herein at this time. We therefore do not believe that any useful purpose would be served by the issuance of an advisory opinion on the issue of commerce jurisdiction over the Employer’s secondary schools. Accordingly, it is hereby ordered that the petition for advisory opinion he, and it hereby is, dismissed. (Emphasis added)

In view of the determination by the N. L. R. B. that it “would not entertain a representation petition involving the employees herein at this time” and thus would not assert jurisdiction of the dispute involved in the appeal before us, we shall, for the reasons set forth in our prior opinion, affirm the judgment appealed from.

The judgment is affirmed.


text:
    STANLEY OLEN, PLAINTIFF-APPELLANT, v. SARAH OLEN, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued June 12, 1973
    Decided June 27, 1973.

      Before Judges Kolovsky, Matthews and Crahay.

      Mr. Stanley Olen, appellant, argued pro se.

      Mr. Andreas A. Boyadjis, attorney for respondent, filed a statement in lieu of brief.
   Per Curiam.

At the conclusion of a trial of this action for divorce held on September 14, 1972, at which both parties were represented by attorneys, the trial court ruled:

I am satisfied that the testimony supports the allegations of the complaint, that the defendant is guilty of willful and continuous desertion for more than 12 months prior to the filing of the complaint and on a counter claim that there has been a separation for more than 18 months; the parties having lived in separate habitations and there being no reasonable prospect for reconciliation. Therefore, there will be a judgment on the complaint and on the counter claim dissolving the marriage.
The determination here, Mr. Boyadjis, is merely that the desertion is willful and continuous but there will be the privilege reserved to introduce tlie issue of marital fault including the right to cross examine the plaintiff on your part and Mr. Dalena’s right to cross examine the defendant with regard to any reasons of marital fault as they may relate to property distribution.

On October 19, 1972, the court heard and granted a motion by defendant requiring plaintiff to answer interrogatories and to submit to examination on depositions. At the same time the court granted a motion by plaintiff’s attorney to be relieved as counsel.

Although plaintiff had notice that the last mentioned motions were to be argued on October 19, 1972, he did not appear. lie says that he arrived in the courtroom after the motions had been heard and decided. On October 30, 1972 he filed, without leave of court, a “notice of appeal” to this court from the several rulings made by the trial court on October 19, 1972.

"By motion returnable October 27, 1972, defendant’s attorney moved to settle the form of the judgment of divorce. Although the affidavit filed by defendant’s attorney states that he served a copy of the proposed judgment on plaintiff, plaintiff denies that he received it. In any event, the motion was granted and the judgment of divorce in the form annexed thereto was signed on November 1, 1972.

However, the final judgment so entered recited only the court’s finding that defendant had proved a canse of action entitling her to a divorce under the 18 month provision of the Divorce Act and,

“Ordered and Adjudged that pursuant to the statute in such case made and provided, the marriage between the parties is dissolved.”

Instead of taking the proper course of moving in the trial court for an amendment of the final judgment, so that it would embody all the determinations made by the trial court at the hearing of September 14, 1972, plaintiff, on November 10, 1972, filed an amended notice of appeal dated November 8, 1972 in this court, appealing from the final judgment.

Plaintiff’s appeal from the order — granted at the hearing of October 19 and signed on November 10, 1972 — requiring him to submit to depositions is without substance. The court did not abuse its discretion in entering that order. Eurther, the issue is moot since plaintiff complied with the order and testified after this court, on December 1, 1972, denied plaintiff’s application for a stay and permitted the scheduled deposition to proceed.

However, plaintiff is correct in his contention that the judgment of divorce should have recited not only the court’s finding that defendant had proved her counterclaim, but also its finding that plaintiff had proved, as alleged in his complaint, a cause of action for divorce based on defendant’s willful and continuous desertion for more than 12 months.

The judgment of divorce should therefore be amended, nunc pro tunc as of November 1, 1972, to embody all the findings and conclusions ■— quoted above — of the trial court at the end of the September 14, 1972 hearing.

Plaintiff notes that defendant died on December 22, 1972 and contends that we should rule “that no divorce has been in effect until a Corrected Einal Judgment is filed.” The contention is advanced with the apparent hope that acceptance thereof would permit plaintiff to successfully urge that since he has survived his wife he is the sole owner of property which they had held by the entireties, instead of being limited to a claim as a tenant in common under the settled rule that “an absolute divorce * * * converts an estate by the entirety into a tenancy in common.” DiSanto, et al. v. Adase, 116 N. J. Super. 226, 228 (App. Div. 1971).

Even were we to disregard (1) the fact that a judgment of divorce was entered and (2) plaintiff’s unexplained failure to apply to the trial court before his wife died and before an appeal was taken for an amendment of the judgment, there is no justification for or merit to plaintiff’s contention.

Even if no judgment had been entered before defendant wife’s death, the court would be called upon to enter a judgment, nunc pro tunc as of the date of its ruling, in accordance with its findings and conclusions. Clark v. Van Cleef, 75 N. J. Eq. 152, 157 (Ch. 1908); Bugbee v. Van Cleve, 100 N. J. Eq. 263, 271 (Prerog. 1926) ; Vogler v. Vogler, 98 N. J. Eq. 421, 425 (Ch. 1925); Annotation, Divorce Suit— Death of Party, 104 A. L. R. 654, 664 (1936).

“The general rule * * * is that, if the facts justifying the entry of a decree were adjudicated during the lifetime of the parties to a divorce action, so that a decree was rendered or could or should have been rendered thereon immediately, but for some reason was not entered as such on the judgment record, the death of one of the parties to the action subsequently to the rendition thereof, but before it is in fact entered upon the record, does not prevent the entry of a decree nunc pro tune to take effect as of a time prior to the death of the party.” [104 A. L. R. 664]

The cause is remanded to the trial court for entry, nunc pro tunc as of November 1, 1972, of an amended final judgment as above provided. In all other respects the judgment and order appealed from are affirmed.


text:
    LOUISE DAVID, PETITIONER-APPELLANT, v. EMPLOYERS MUTUAL INSURANCE CO. OF WAUSAU AND THE UNITED HOSPITALS OF NEWARK ORTHOPEDIC CENTER, HOSPITAL FOR CRIPPLED CHILDREN AND ADULTS, RESPONDENTS-APPELLEES.
    Superior Court of New Jersey Appellate Division
    Argued June 11, 1973
    Decided June 28, 1973.

      Before Judges Carton, Mintz and Seidman.

      Mr. Charles N. Miller argued the cause for petitioner-appellant (Messrs. Feuerstein, Sachs & Maitlin, attorneys).

      Mr. Edward C. Dobrovolski, argued the cause for respondent-appellee Employers Mutual Insurance Co. of Wausau (Messrs. Jung, Dwyer, Peer & Lisbona, attorneys; Mr. Edmond J. Dwyer, Jr., on the brief).

      Mr. William D. Mungle argued the cause for respondentappellee. The United Hospitals of Newark Orthopedic Center, etc. (Messrs. Stevens & Mathias, attorneys).
   Per Curiam.

This is an appeal from a judgment of dismissal in the Workmen’s Compensation Division.

Petitioner, a licensed practical nurse on private duty attending to a hospital patient, was injured when a chair on which she was sitting collapsed. She sought workmen’s compensation benefits from Employers Mutual Insurance Co. of Wausau. More than two years after the accident she filed an amended petition naming the hospital as an additional respondent. At the hearing the judge of compensation dismissed the claim petition against the hospital on the ground that it was barred by the statute of limitations, N. J. S. A. 34:15-51 and entered a judgment of dismissal in favor of the insurance company, holding that there was no employer-employee relationship.

The proofs showed that petitioner was engaged through the nurses’ registry to render private nursing care to a patient who had been injured in the course of his employment and whose medical and hospital bills, including those for private nursing care, were being paid by respondent insurance company as the compensation carrier for the patient’s employer. She billed the insurance company directly for her services, and there were no deductions for income taxes or social security.

Petitioner contends that a compensation carrier which, in the exercise o£ its obligation to furnish an injured workman necessary medical, surgical and other treatment, as well as hospital services, authorizes and pays for the services of a private nurse, becomes thereby the employer of the nurse for the purposes of the Workmen’s Compensation Act. No ease has been brought to our attention which so holds, and our own research has disclosed none. In our view the contention is unsound.

It is the general rule that when a nurse who offers professional service to the public is privately engaged to look after a patient in a hospital, she does not ordinarily become the employee of the patient, or the patient’s spouse or employer, whichever of them may have procured her services. 1A Larson, Workmen's Compensation (1967), § 45.32(c) at 731. In such ease she is ordinarily an independent contractor. On the facts here present the “relative nature of the work test” would not change her status to that of an employee, and we see no reason for applying a different rule to the respondent insurance carrier. Cf. Marcus v. Eastern Agricultural Ass’n, Inc., 58 N. J. Super. 584, 603 (App. Div. 1959), rev’d and dissent adopted 32 N. J. 460 (1960). The cases cited by petitioner are inapposite.

With respect to. the hospital, we do not think the petition should have been dismissed on the ground that it was filed out of time, and the record does not support the comment of the judge of compensation that the hospital’s counsel consented to the dismissal. The issue was whether petitioner was an employee of the hospital. If she was, and if medical treatment was furnished her within the two-year period, then the petition was not barred by the statute of limitations. N. J. 8. A. 34:15 — 51. Zanni v. Rudolph Poultry Equipment, 105 N. J. Super. 325, 328 (App. Div. 1969).

In any case, we see no need to remand these issues to the Division because we are satisfied from the proofs that petitioner was not an employee of respondent hospital. It is evident from her own testimony that she responded to a call from the nurses’ registry and proceeded directly to the patient’s room after consulting the doctor’s order sheet. She received no instructions except from the attending physicians, although she was required to observe the hospital’s rules and regulations concerning the giving of medication and the making of entries on thee patient’s chart. The hospital did not pay her. In these circumstances she retained her status as an independent contractor. Brown v. St. Vincent’s Hospital, 222 App. Div. 402, 226 N. Y. S. 317 (App. Div. 1928); Edith A. Anderson Nursing Homes, Inc. v. Walker, 232 Md. 442, 194 A. 2d 85 (Ct. App. 1963); McDonald’s Case, 345 Mass. 766, 187 N. E. 2d 388 (Sup. Jud. Ct. 1963); Annotation, “Nurse as independent contractor or servant,” 60 A. L. R. 303 (1929). See also Chmizlak v. Levine, 20 N. J. Misc. 339, 27 A. 2d 629 (Dept. Labor 1942). Cf. Bertsch v. Jones, 128 N. J. L. 34 (Sup. Ct. 1942), aff’d 129 N. J. L. 51 (E. & A. 1942), and Robinson v. Levy, 20 N. J. Misc. 444, 28 A. 2d 651 (Dept. Labor 1942), which are distinguishable factually. Applying the “relative nature of the work tost” would not change the result on the facts of this case.

The judgment is affirmed.


text:
    MARGARET CARR, PETITIONER-RESPONDENT, v. CAMPBELL SOUP COMPANY, RESPONDENT-APPELLANT. MARGARET CARR, PETITIONER-APPELLANT, v. CAMPBELL SOUP COMPANY, RESPONDENT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Submitted March 19, 1973
    Decided June 25, 1973.

      Before Judges Lora, Allcorn and Handler.

      Messrs. Molotsky, Rabkin & Gross, attorneys for petitioner Margaret Carr (Mr. Donald Schwartz on the brief).

      Messrs. McLaughlin, Dawes, Abbotts & Cooper, attorneys for respondent Campbell Soup Company (Mr. Roland R. Formidoni on the brief).
   Per Curiam.

A review of the record, satisfies us that there was ample credible evidence present in the whole record to warrant the findings and conclusions of the compensation judge. DeAngelo v. Alsan Masons, Inc., 122 N. J. Super. 88 (App. Div.), aff’d 62 N. J. 581 (1973). It was determined that decedent’s death was work-connected, there being adequate evidence to establish that the stresses of work were a material precipitating cause of a coronary insufficiency which resulted in a fatal arhythmia and sudden death. Dwyer v. Ford Motor Co., 36 N. J. 487 (1962); also, Meines v. Hy Levine Associates, 58 N. J. 548 (1971); Aladits v. Simmons Co., 47 N. J. 115 (1966). Accordingly, the compensation judge allowed dependency benefits to decedent’s wife and daughter. The judge, however, denied a similar award to decedent’s dependent grandchild on the ground that he was illegitimate. This is the focal point of petitioner’s appeal.

The denial of dependency benefits to the illegitimate grandchild of the decedent was premised on Splitdorf Electrical Co. v. King, 90 N. J. L. 421 (Sup. Ct. 1917), aff’d 92 N. J. L. 524 (E. & A. 1918). There the court construed the dependency provisions of the Workmen’s Compensation Act, N. J. S. A. 34:15-13(f), which in pertinent part provides :

Tie term “dependents” shall apply to and include any or all of the following who are dependent upon the deceased at the time of accident or the occurrence of occupational disease, or at the time of death, namely: Husband, wife, parent, stepparents, grandparents, children, stepchildren, grandchildren, child in esse, posthumous child, illegitimate children, brothers, sisters, half brothers, half sisters, niece, nephew. Legally adopted children shall, in every particular, be considered as natural children. Dependency shall be conclusively presumed as to the decedent’s widow and to the natural children under 18 years of age of a male or female decedent who were actually a part of the decedent’s household at the time of his death. Every provision of this article applying to one class shall be equally applicable to the other. * 4” [Emphasis added]

The court held that this statute excluded as eligible dependents illegitimate grandchildren, that is grandchildren who did not stand “legally in that relation to the decedent workman.” 90 N. J. L. at 423. We conclude that the statute so construed is not constitutionally viable.

It is axiomatic that under the Fourteenth Amendment’s Equal Protection Clause, a statutory classification must bear some rational relationship to a legitimate state purpose. Morey v. Doud, 354 U. S. 457, 77 S. Ct. 1344, 1 L. Ed. 2d 1485 (1957); Williamson v. Lee Optical Co., 348 U. S. 483, 75 S. Ct. 461, 99 L. Ed. 563 (1955). In assessing the reasonableness of state regulatory systems, classifications which affect or trench upon the personal rights of individuals are subject to exacting scrutiny. Harper v. Board of Education, 383 U. S. 663, 86 S. Ct. 1079, 16 L. Ed. 2d 169 (1966). It is within the undoubted competence of the Legislature to determine the class of persons entitled to benefits as dependents under the Workmen’s Compensation Act. But having determined that within such classification there shall be encompassed grandchildren of a workman, the exclusion therefrom of children whose parents are unwed can find no justification founded in any defensible state policy or interest. The denial to dependent illegitimate grandchildren of recovery rights otherwise confirmed in their legitimate counterparts, violates the Equal Protection Clause of the Fourteeenth Amendment.

This conclusion we consider to be an inexorable extension of Weber v. Aetna Casualty & Surety Co., 406 U. 8. 164, 92 S. Ct. 1400, 31 L. Ed. 2d 768 (1972), wherein the Supreme Court held that the denial of workmen’s compensation benefits to the illegitimate children of a deceased workman, while awarding such benefits to his legitimate children, constituted “impermissible discrimination.” In analogous areas Where significant legal rights were at stahe, divisions between children as a class based solely on their legitimacy have been characterized as invidious. E. g., Levy v. Louisiana, 391 U. S. 68, 88 S. Ct. 1509, 20 L. Ed. 2d 436 (1968); Glona v. American Guar. & L. Ins. Co., 391 U. S. 73, 88 S. Ct. 1515, 20 L. Ed. 2d 441 (1968); Schmoll v. Creecy, 54 N. J. 194 (1969) (involving recovery for wrongful death); Gomez v. Perez, 409 U. 8. 535, 93 S. Ct. 872, 35 L. Ed. 2d 56 (1973) (involving parental duty of support); Stanley v. Illinois, 405 U. S. 645, 92 S. Ct. 1208, 31 L. Ed. 2d 551 (1972) (involving parental right of custody). See generally, Annotation, “Discrimination on Basis of Illegitimacy as Denial of Constitutional Rights,” 38 A. L. R. 3d 613 (1971). We entertain no doubt that, in terms of the purposes to be fulfilled by the workmen’s compensation law, a statutory separation of grandchildren within a class predicated only upon the circumstance of the legitimacy of their birth is similarly tainted.

The succeeding issue is whether the statute must fall because of its constitutional deficiency. We are guided in the resolution of this question by the analysis in Sclimoll v. Greecy, supra, wherein the court stated that “we think the sounder course is to consider what is involved and to decide from the sense of the situation whether the Legislature would want the statute to succumb.” 54 N. J. at 202. What is involved is a search for legislative intent and purpose in the face of a siibsequent unpredieted event, namely the judicial determination of the constitutional invalidity of the statute.

We are mindful that N. J. 8. A. 34:15-13(f), as enacted in L. 1913, c. 174, purported to draw a distinction whereby legitimate and illegitimate children and legitimate grandchildren were included as dependents but illegitimate grandchildren were not. Splildorf Electrical Co. v. King, supra. It is well to point out that the provisions of the Workmen’s Compensation Act delineating persons as dependents at first did not differentiate among children or grandchildren based upon the circumstance of their birth. L. 1911, c. 95. The Legislature in the amendment of L. 1913, c. 174, however, made a legitimacy distinction with respect to children. This was to assure affirmatively the inclusion of dependent illegitimate children within the class of beneficiaries. In that vein it also included a presumption of dependency with respect to illegitimate children living within the household of a decedent. This amendment did not by its literal language exclude illegitimate grandchildren from the scope of the dependency statute. These particular changes were not affected by the amendment of L. 1914, c. 244.

There followed, in sequence, Splitdorf Electrical Co. v. King, supra, in 1917 which, as noted, held that by implication the Legislature intended to exclude illegitimate grandchildren from the scope of the dependency provisions of the statute. Later, in 1919 the Legislature deleted the presumption of dependency as to illegitimate children but substituted therefor a conclusive presumption of dependency as to all natural children who were a part of the decedent’s household. L. 1919, c. 93.

In the years which followed there were several amendments to this section of the Workmen’s Compensation Act but none dealt directly or indirectly with the status of illegitimate grandchildren qua statutory dependents. This history, therefore, cannot be said to refiect on the part of the Legislature either an affirmative adoption of or a purposeful acquiescence in the judicial interpretation accorded the statute under Splitdorf. Certainly this history cannot be distilled into an expression of legislative thinking which would undercut the conclusion that it would be more compatible with the preeminent legislative purpose of the Workmen’s Compensation Act to benefit all grandchildren, including those who are illegitimate rather than not benefit any.

The court in Splitdorf did not confront or presage the particular issue of what would be the effect upon a contraction of the statute and upon a search for legislative intent in the wake of a constitutional infirmity not anticipated when the law was originally enacted. Moreover, it can be recognized that the common law tenet, underscored by that court to support its decision, that an illegitimate child is nullius films, does not have philosophical or societal currency in modern times. Since Splitdorf, its conceptual underpinning has been eroded and there has been an enlightened retreat from the ground on which it once stood. E.g., N. J. S. A. 3A:4-1; Levy v. Louisiana, supra; Schmoll v. Creecy, supra; Hammond v. Pennsylvania R. R. Co., 31 N. J. 344 (1959). We are of the opinion, therefore, that the Legislature was not so bent upon denying dependency benefits to illegitimate grandchildren that it would prefer the dependency provisions of the Workmen’s Compensation Act to be void in their entirety and to fail in their primary aim of providing benefits to all grandchildren who were dependent upon a deceased workman. Accordingly, the determination below denying the award of such benefits to the illegitimate grandchild of decedent must be reversed.

A final point urged by respondent is that it was error for the compensation judge to award petitioner’s doctor a witness fee of $100, each party to contribute $50 thereof, contrary to N. J. S. A. 34:15-64. Petitioner’s medical expert was licensed to practice medicine and resided in Pennsylvania. We are of the opinion that this statute does not constitute a bar to the awarding of fees to a nonresident medical witness whose testimony is necessary for the proper presentation of petitioner’s case, and that respondent may be compelled to pay a portion thereof. Cerasi v. Cooperson Brothers, Inc., 133 N. J. Super. 534 (App. Div. 1973).

The judgment below is reversed in part and remanded for the award of dependency benefits to the illegitimate grandchild of the decedent, and is otherwise affirmed.


author: Furman, J. S. C.

text:
    NEW JERSEY STATE POLICEMEN’S BENEVOLENT ASSOCIATION, INC., A NEW JERSEY CORPORATION, PLAINTIFF, v. TOWN OF MORRISTOWN, A MUNICIPAL CORPORATION; ANTHONY CATTANO, MAYOR OF THE TOWN OF MORRISTOWN, A MUNICIPAL CORPORATION; RICHARD C. SMITH, SR., CHIEF OF POLICE OF THE TOWN OF MORRISTOWN, A MUNICIPAL CORPORATION; JOHN MURPHY AND GEORGE F. KUGLER, JR., ATTORNEY GENERAL OF THE STATE OF NEW JERSEY, DEFENDANTS.
    Superior Court of New Jersey Chancery Division
    Decided June 19, 1973.

      Mr. Anthony L. Mezzacca, for plaintiff (Messrs. Mezzacca, Guida & Maddalena, attorneys).

      Mr. Henry M. Hoyt for defendants Town of Morristown, Richard C. Smith, Sr. and John Murphy (Messrs. Hoyt, Jeffers & Welland, attorneys).

      Mr. Morton I. Greenberg, Assistant Attorney General, for defendant State of New Jersey (Mr. George F. Kugler, Jr., Attorney General, attorney; Mr. John M. Van Balen, Deputy Attorney General, on the brief).
   Furman, J. S. C.

On motions for judgment on the pleadings (R. 4:6-2) the sole issue is whether defendant Murphy and others 18 years of age are eligible for appointment as municipal police officers. N. J. S. A. 40A:1^U127 fixes an age range of 21 to 35 for starting municipal police officers. The Legislature lowered the age of legal majority from 21 to 18, effective January 1, 1973, by L. 1972, c. 81 (N. J. 8. A. 9:17B-1 to 3), extending specifically to 18-year-olds the right theretofore applicable to 21-year-olds to “apply for and be appointed to public employment.”

No pertinent legislative history of L. 1972, c. 81, or of N. J. 8. A. 40A: 14^127, is available. No judicial precedent in this State or elsewhere is cited.

Plaintiff is seeking a declaratory judgment in view of the alleged public importance of the issue. Plaintiff argues generally that N. J. 8. A. 40A:14-127 was not repealed impliedly by L. 1972, c. 81, because of its evident legislative intent to restrict appointment of municipal police officers, who protect the public and themselves face danger recurrently, to persons of maturity and experience as well as physical fitness.

The Attorney General concedes that his research reveals no statute governing the minimum age of public employment outside the fields of law enforcement and fire fighting. N. J. 8. A. 39:2-6.1 (Motor Vehicle Inspectors), N. J. 8. A. 40A:14-32 (Municipal Firemen), and N. J. 8. A. 53:1-9 (State Police) provide starting age requirements between 21 and 35. Thus, a legislative intent to limit eligibility to persons of maturity and experience beyond 18-year-olds may be argued for.

In fixing the maximum starting age at 35 the Legislature presumably was assuring insofar as possible the physical fitness of law enforcement and fire fighting personnel, both because of their hazardous employment and of the liberal pension benefits payable upon death or disability to their survivors or themselves. Granted such a compelling legislative intent, a plausible hypothesis is that the Legislature established an age range for eligibility equating the bottom of the range with the age of legal majority. But the establishment of an age range would have been superfluous, absent an additional legislative intent to bar persons under 21 from employment as policemen or firemen.

Defendants argue that if the right of 18-year-olds to “apply for and be appointed to public employment” is not applied to N. J. 8. A. 40A:14 — 127 and its companion statutes, that right adds nothing to what 18-year-olds were eligible for before the enactment of L. 1972, c. 81. The Legislature is presumed to be familiar with its prior statutes, Brewer v. Porch, 53 N. J. 167, 174 (1969), and not to contemplate a nullity, O’Rourke v. Board of Review, 24 N. J. 607, 610, 611 (1957).

Conversely, the Chief Examiner and Secretary of the State Civil Service Department has the authority to fix minimum age requirements for positions in the classified service (N. J. 8. A. 11:9-2), as do governmental subdivisions for positions not subject to Civil Service (IV. J. 8. A. 40:48-1(3)). Some meaning must therefore be accorded to the statutory language authorizing public emplojunent for 18-year-olds even if held inapplicable to N. J. 8. A. 40A:14-127.

Implied repealers are not favored in the law unless the legislative intent is dear. Brewer v. Porch, supra, 53 N. J. at 173; Dept. of Labor v. Cruz, 45 N. J. 372 (1965). Overriding considerations of public safety and welfare are at stake in the determination of qualifications for initial appointment of police officers. While L. 1972, c. 81, provides that 18-year-olds “shall have the same legal capacity to act and the same powers and obligations as a person 21 or more years of age,” distinctions in maturity and experience between 21 and 18 year olds are not abolished, for example, four years’ rather than one year’s experience as a licensed motor vehicle driver (N. J. 8. A. 39:3-10).

L. 1972, c. 81, is held not to have repealed N. J. 8. A. 40A:14AL27. Judgment on the pleadings is so rendered.


author: Margolis, J. S. C.,

text:
    ESSEX COUNTY MAYORS’ CONFERENCE, JOHN S. KOSKO, LEAGUE OF WOMEN VOTERS OF ESSEX COUNTY, PHYLLIS HALPERN, AND GREATER NEWARK CHAMBER OF COMMERCE, PLAINTIFFS, v. THE BOARD OF CHOSEN FREEHOLDERS OF THE COUNTY OF ESSEX, NICHOLAS V. CAPUTO, ESSEX COUNTY CLERK, DEFENDANTS.
    Superior Court of New Jersey Law Division
    Decided June 19, 1973.

      Mr. John J. Francis, Jr. for plaintiffs (Messrs. Shanley & Fisher, attorneys).

      Mr. Francis P. McQuade, Essex County Counsel, for defendants.
   Margolis, J. S. C.,

Temporarily Assigned. In this action in lieu of prerogative writs plaintiffs Essex County Mayors’ Conference et dl. seek by way of summary judgment to compel defendant Board of Chosen Freeholders of the County of Essex (hereinafter freeholders) to file with defendant Nicholas V. Caputo, Essex County Clerk (hereinafter county clerk), resolution No. 30643 (hereinafter Rotundo Resolution), dated September 28, 1972 and adopted pursuant to N. J. S. A. 40:41A-1 et seq., commonly known as the Optional County Charter Law.

The facts appear to be uncontroverted, The Rotundo Resolution, entitled "Optional County Charter Law — Authorizing Charter Study Election November 6, 1973,” in fact authorized an election to be held in Essex County on November 6, 1973 upon the question:

Shall a charter study commission be elected to study the present governmental structure of Essex County, to consider and make findings concerning the form of county government and to make recommendations thereon?

The resolution, as pertinent, states:

WHEREAS, the Essex County Board of Chosen Freeholders has demonstrated a sincere and effective desire in 1971 and 1972 to update Essex County Government * * *
WHEREAS, the Board overwhelmingly desires to avail itself of the best and most economic procedure to give to the voters of Essex County an opportunity to review their County Government; and to determine whether the County Government could be strengthened, made more clearly responsive or accountable to the people and whether its operation could be more economic or efficient under a changed form of Government; and
WHEREAS, such review cannot by the terms of P. L. 1972, c. 154 be initiated at the coming General Election of November 7, 1972 because not less than 60 days must elapse before an election can be held to initiate such review; now, therefore, be it
RESOLVED, that subject to any future amended procedure more economic and effective than that presently provided in the Optional County Charter Law, the Board hereby authorizes an election to be held at the first General Election available under the law, which will be on November 6, 1973 in Essex County upon the question: ‘Shall a charter study commission be elected to study the present governmental structure of Essex County, to consider and make findings concerning the form of County Government and to make recommendations thereon?’ ”

This resolution was adopted by the affirmative vote of eight of the nine members of the board, one member being absent; was presented to and approved by the county supervisor on October 2, 1972, and was filed with the clerk of the freeholders on the same date after having been approved as to form and legality by county counsel.

On the same day (September 28, 1972), following the passage of the Eotundo resolution, freeholders were requested to act upon a subsequent resolution (No. 30644) entitled “Optional County Charter Law — Implementation of Charter Study” (hereinafter Hausmann resolution), the pertinent provisions of which read as follows:

WHEREAS, Essex County with its complexity of social, financial and governmental problems is more in need of better tools of government than any other county in New Jersey; now, therefore, be it
RESOLVED, that the Essex County Board of Chosen Freeholders immediately take the action required under Senate Bill 283 to implement a charter study for Essex County.

This resolution received only two affirmative votes, with six freeholders, not voting, and was therefore defeated.

Preeeholders have conceded at oral argument that the Eotundo resolution was thereafter “deliberately” not filed with the county clerk, as provided in the enabling statute. Thus, as the situation now stands, the proposed question of county charter study would not appear on the ballot at the general election of November 6, 1973.

Plaintiffs filed this action on May 30, 1973 by verified complaint, and on plaintiffs’ application this court ordered freeholders to show cause on June 8, 1973: (1) why the Eotundo resolution should not be filed with the county clerk, and (2) why the aforesaid question should not be placed on the ballot at the election to be held on November 6, 1973. However, this court declined to restrain or enjoin freeholders from rescinding or taking any other steps to avoid or nullify the resolution. To the knowledge of this court, to date freeholders have taken no action of any kind with respect thereto.

Oral argument was heard on June 8, 1973, the return date of the order to show cause. This opinion disposes of the issues presented in the order to show cause as well as plaintiff’s motion for summary judgment pursuant to B. 4:69-2.

N. J. 8. A. 40:41A-1 provides, as pertinent:

Whenever authorized by resolution of the board of freeholders or on petition of the registered voters of any county, an election shall be held in the county upon the question, “Shall a charter study commission be elected to study the present governmental structure of * * * county, to consider and make findings concerning the form of county government and to make a recommendation thereon?” A petition calling for such an election shall bear the signatures of a number of persons registered to- vote in the county equal to or exceeding in number 10% of the persons registered to vote in the county on the fortieth day preceding the most recent previous primary or general election. Whenever such resolution or petition shall be filed with him, the county clerk shall provide for submission of the question at the general election occurring not less than 60 days after the date of such filing. At the election, the question shall be submitted in the same manner as other public questions.
When a resolution or petition for the election of a charter study commission has been duly filed with the county clerk, no other such resolution or petition and no other proceedings for the adoption of any other charter or form of government available to the county may be filed unless the voters shall decide the aforesaid question in the negative or until the charter study commission elected by the voters shall have been discharged.

In interpreting the section it is clear that the Legislature desired to create two methods by which the citizens of the counties would be permitted to decide whether a charter study commission should be elected to study the present governmental structure of a county, and “to make findings concerning the form of county government and to make recommendations thereon.”

Plaintiffs maintain that since the freeholders have chosen to exercise their powers under N. J. 8. A. 40:41A-1 by adopting the resolution, the act of “filing” the resolution with county clerk is a ministerial act or duty within the purview of R. 4:69-2. Freeholders, however, insist that the “filing” requirement under N. J. 8. A. 40:41A-1 is a separate, distinct act — a decision which freeholders must make irrespective of, or in addition to, adopting the resolution. Freeholders assert that they deliberately refrained from inserting in their resolution any mandate that it be filed, and further, that it was their prerogative to determine whether or not to file the resolution at a later date. In short, freeholders argue that their refusal to file the resolution with the county clerk is within their discretion under the language of N. J. 8. A. 40 :41A-1, and, therefore, not properly the subject of judicial review.

Freeholders also allege that this action is untimely in that it was not brought within 45 days after adoption of the resolution and approval thereof by the county supervisor.

R. 4:69 provides that no action in lieu of prerogative writs shall be commenced later than 45 days after accrual of the right to the review, hearing, or relief claimed. They interpret plaintiffs’ claim as seeking a mandatory insertion in the resolution of a provision that the resolution should be filed immediately with the county clerk. Then, arguing in the alternative as to the timeliness of this application, freeholders charge that it is, in fact, premature to seek to compel them to perform the act of filing the resolution, since under N. J. 8. A. 40:41A~1 they have until 60 days before a general election in which to file with the county clerk and that time has not as yet expired.

If “filing” the resolution with the county clerk is, in fact, a ministerial act, it is the opinion of this court that plaintiffs’ claim is not untimely. As proofs submitted by way of affidavit and oral argument suggest, freeholders have never precisely stated with finality when, or if, they will file the resolution. In their brief, plaintiffs allege that the Essex County Conference of Mayors repeatedly requested an answer from defendants as to whether the resolution would be filed, and that it was not -until May 1, 1973 that plaintiffs learned (allegedly through the press) that freeholders did not intend to file the resolution. The alternative arguments of freeholders on this point are untenable.

It is the opinion of this court that the 45-day limitation of B. 4:69 should not apply so as to limit plaintiffs’ action since plaintiffs do not seek to “review” an act of the freeholders nor do they petition the court for insertion into the resolution of a filing mandate. Rather, plaintiffs seek to enforce a continuing right created by the passage of the resolution. Instead of seeking a “review” of formal action by freeholders, plaintiffs seek “relief” hy way of prerogative writ in the nature of mandamus. See Yanuzzi v. Mayor, etc., Spring Lake, 22 N. J. 567 (1956).

As stated in Lettieri v. State Board of Medical Examiners, 34 N. J. 199, 306 (1957), “An agency which would claim the 30-day ban should act and speak with unmistakable finality.” Freeholders by their own admission have failed to act with respect to the resolution in such manner as would in any way attach finality to it.

Uor is this action premature merely because the county clerk is mandated to place the question on the ballot, so long as the resolution is filed at least 60 days before the general election. It would be inequitable to require plaintiffs and the citizenry to await the possible action or inaction of freeholders, or to be compelled to obtain the requisite signatures required for a petition, when freeholders have, in fact, already passed the resolution calling for such election. Under their theory, freeholders would be free to refrain from taking any action until the statutory period has run, and then formally express their intention not to file the resolution, thereby effectively foreclosing placement of the question on the ballot (unless requisite petitions have been obtained and filed).

To date, the courts of this State have not had occasion to determine whether the act of filing a resolution with the county clerk as set forth in the foregoing statute is, in fact, an obligatory ministerial act subject to mandamus.

Freeholders claim that the Legislature intended the act of “filing” to be a distinct legislative act and, therefore, not subject to mandamus. In support thereof they refer the court to the proposed draft of the Optional County Charter Law issued by the State of New Jersey, County and Municipal Government Study Commission, in which, freeholders allege, there was no clear separation of the intent to have an election and the intent to file. Freeholders interpret this draft as demonstrating that the language contained in the adopted version of the bill, specifically the use of tlie phrase “Whenever such resolution * * * shall be filed,” reflects a legislative intention to separate the expressed intent to have an election from the intent to file the resolution with the county clerk. This court does not agree.

The absence of any specific provision requiring the act of filing, separate and apart from adoption of the resolution, or as part of the resolution, in both the draft and finalized bill cannot logically be interpreted as freeholders suggest.

Freeholders attempt to draw a comparison between the filing provisions of N. J. 8. A. 40:41A-1 and those contained in the Optional Municipal Charter Law (Faulkner Act), and allege that the language of N. J. 8. A. 40:41A-1, specifically the clause “whenever such resolution or petition shall be filed with him, the county clerk shall provide for submission of the question at the next general election * * indicates a legislative intent to add a separate filing provision to that contained in the Faulkner Act. In the Faulkner Act the municipal clerk is mandated to provide for the submission of the question and election of a charter study commission -whenever authorized by ordinance of the governing body of a municipality, or upon petition of the registered voters, or, using words of the act, “In either event, the municipal clerk shall provide for the submission of the question * * * at the next general or regular municipal election * * *.” (N. J. 8. A. 40: 69A-1). It should be noted, however, that the municipal clerk in the Faulkner Act is also the clerk of the governing body which may adopt an ordinance authorizing an election, or with whom any petitions are filed.

In N. J. 8. A. 40 :41A-1, however, the county clerk is not the clerk of the freeholders and therefore must await either a freeholder resolution or the filing of petitions before he can place the question on the ballot.

This court construes “whenever” or “in either event,” as used in these statutes, to have similar meaning. If any legislative distinction was intended, it is simply that under N. J. 8. A. 40:41A-1 the filing of either a resolution or a petition, as the case may be, bars the possibility of any other resolution, petition or other proceedings for the adoption of any other charter or form of government. Under both statutes, however, the obligation of the clerk is purely ministerial.

An interpretation by this court of the precise language of N. J. 8. A. 40:41A-1 and, in particular, the use of the word “whenever,” as that word appears in two separate portions of the first paragraph thereof, is essential to a determination of the basic issue remaining before this court.

The pertinent language commences and states as follows:

Whenever authorized by resolution of the board of freeholders * * * an election shall be held * *. [Emphasis added].

Further into this paragraph, the word “whenever” is again used:

* * * Whenever such resolution * * * shall be filed with him, the county clerk shall provide for submission of the question at the next general election occurring not less than 60 days after the date of such filing * * *\

The word “whenever-” has been the subject of judicial interpretation through the years. The United States Court of Appeals has interpreted the word “whenever” in Hobby v. Hodges, 215 F. 2d 754 (10 Cir. 1954):

“Webster’s New International Dictionary of the English Language treats the word “whenever” as an adverb and a conjunction. When used as an adverb, it is defined to mean, “At whatever time; no matter when.” When used as a conjunction, it is defined to mean, “At any or all times that; in any or every instance which.” Either as an adverb or conjunction, the word “whenever” cannot be defined as a restrictive word. It generally refers to the future and means “at whatever time.” [at 758]

In People v. Minuse, 190 Misc. 57, 70 N. 7. S. 2d 426, 431 (Sup. Ct. 1945), the following language appears: “* * * the word ‘whenever’ is an adverb of time and means ‘at whatever time’ in the future rather than the past * * Similarly, the Supreme Court of Michigan, in People v. Merhige, 212 Mich. 601, 180 N. W. 418 (1920) interpreted the word “whenever” contained in a statute, the applicable portion of which reads:

“That whenever any person shall plead guilty to an informa tioE filed against him in any circuit court, it shall be the duty of the judge of such court, before pronouncing judgment or sentence upon such plea to become satisfied * *

Construing “whenever”, the court held: “ ‘Whenever’ is equivalent to ‘as soon as’, ‘at whatever time’ * *

Blac¥s Law Dictionary (4th ed rev.) defines the word “whenever” as follows: “At whatever time; at what time soever.”

It is the court’s view that the word “whenever,” as used in N. J. 8. A. 40 :41A-1, was intended by the Legislature to indicate that “at whatever time” the freeholders choose to enact a resolution authorizing an election on the question of a charter study, then an election shall be held. Freeholders were at liberty to authorize or refuse to authorize an election, but once having so authorized, it shall be held.

It is to be noted that the Legislature has not provided for any requirement that freeholders' action should, or could, be a two-step procedure, i. e., adoption of the resolution and a subsequent action calling for the filing of same with the county clerk. Had the Legislature intended to do so, it could have clearly so stated.

This court cannot construe the legislative language as granting to freeholders the prerogative to authorize, by resolution, the election referred to, and then to thereafter make that action a nullity by the simple device of refusing or failing to file the resolution with the designated county official.

Further employing the above definition, it is clear that the second “whenever” as stated in the statute refers to the action that the county clerk “shall” take upon receipt of the resolution, i. e., the mechanical acts necessary to place the question on the ballot for the appropriate general election. To hold otherwise would thwart the underlying purpose of the statute.

This court cannot ascribe to a statute an interpretation which would lead to a result contrary to the main object of it where there is an obviously permissible construction which will effectuate the legislative intention.

Freeholders also claim that their rejection on September 28, 1972 of the Hausmann resolution was due to the insistence of the proponent of said resolution that said resolution provided for filing while the adopted Rotundo resolution did not. Freeholders suggest the difference was due to the wording of the last paragraph of the Hausmann Resolution :

“RESOLVED, that the Essex County Board of Gliosen Freeholders imemdiately take the action required under senate B. 11283 to implement a charter study for Essex County.”

It is the opinion of this court that the Hausmann resolution does not in legal consequence differ from the adopted Eotundo resolution and, in fact, was not as precise a mandate to have an election as the Eotundo resolution which clearly stated:

“* * * the Board hereby authorizes an election to be held at the first General Election available under the law, which will be on November 6, 1973 * *

By the language of the Eotundo resolution, freeholders clearly and unequivocally exercised a determination to place on the November 6, 1973 general election ballot the question of a charter study.

It is the opinion of this court that under N. J. 8. A. 40: 4.1A-1, once freeholders adopted the Eotundo resolution authorizing an election on the question of a charter study, the remaining act of filing the resolution with the county clerk became merely a ministerial act subject to mandamus.

It is, therefore, ordered that defendant freeholders forthwith file the Eotundo resolution with the county clerk so that the avowed purposes contained in the resolution and in N. J. 8. A. 40:41A-1 et seq. can be implemented. Judgment accordingly.