author: Lane, J. S. C.

text:
    GERALD D. KOHLER, PLAINTIFF, v. RAYMOND BARNES, MAYOR OF THE TOWNSHIP OF HOWELL, WILLIAM M. PATTERSON, MEMBER OF THE INDUSTRIAL COMMISSION OF THE TOWNSHIP OF HOWELL, AND THE INDUSTRIAL COMMISSION OF THE TOWNSHIP OF HOWELL, JOINTLY, SEVERALLY OR IN THE ALTERNATIVE, DEFENDANTS.
    Superior Court of New Jersey Law Division
    Argued February 26, 1973
    Decided March 1, 1973.

      Mr. Ernest J. GiJcas argued the cause for plaintiff.

      Mr. John Jay Mangini argued the cause for defendants (Messrs. Campbell, Mangini, Foley, Lee & Murphy, attorneys) .
   Lane, J. S. C.

This action in lieu of prerogative writs contesting the appointment of William M. Patterson to the Howell Township Industrial Commission and the overall current composition of that Commission is before the Court on final hearing.

Plaintiff is a resident and taxpayer-in Howell Township. Defendant Raymond Barnes is Mayor of Howell Township and has been since January 1, 1972. Defendant William M. Patterson was Mayor of the Township from January 1 to December 31, 1970. On September 25, 1972 he was appointed to the Township’s Industrial Commission by defendant Barnes.

Dowell Township contains 63 square miles and has a population of approximately 23,000. Twenty percent of the Township is densely developed. There is some industry. The balance of the Township is rural.

The Township’s Industrial Commission was created by an ordinance adopted on November 9, 1970 by the Township governing body, pursuant to N. J. 8. A. 40:55B-1 et seq. The Legislature’s findings and purpose in providing for such commissions are set forth in N. J. 8. A. 40 :55B-2.

It is hereby found and declared as follows:
a. That unless many municipalities are to accept decadence and obsolescence as their inevitable lot, they must thoroughly analyze, their position in the industrial structure of the county and then completely mobilize their potential resources for efficient manufacture; that the location of industry today is more and more the result of an impartial, scientific study of basic economic conditions; that one of the basic difficulties of many of the municipalities of this state is that they do not know themselves; that they have little appreciation of either their economic strength or their economic weakness; that they have never studied impartially, either the economic advantages or the economic disadvantages of their own peculiar geographic position; that there had been an abundance of publicity campaigns and boosting campaigns founded upon superficial generalities and not well designed to enlighten the prospective manufacturer; that a frank inventory of the industrial life of New Jersey communities as a deliberate and sober inquiry of scientific character is necessary to ascertain their real needs and to determine their potential resources for efficient manufacture with a constructive program for sustained and selective growth and a long term policy of industrial rehabilitation and development is necessary.
b. That there are now many thousands of unemployed persons within the state of New Jersey, who, if profitably employed, would create annual pay rolls of millions of dollars; that the re-employment of the present unemployed would quicken and improve social conditions.

Members of the commissions are described in N. J. S. A. 40:55B-5, which states in pertinent part:

The members of each commission shall be appointed by the mayor of the municipality of its creation. Each member shall be, for the last five years preceding his appointment, a citizen of the United States and a qualified voter of the state of New Jersey. * * *
Each member shall be chosen with a special view to his qualifications and fitness for service on the commission. He shall have had experience in industry or commerce and shall be conversant with the industrial needs and facilities of his commission’s municipality, and shall be of known devotion to public service.
There shall be appointed upon said commission, unless local conditions shall otherwise require, at least one thoroughly competent representative of mill owners and operators of mill properties; a representative of labor; a representative of the clearing house or banks of said municipality; a representative of the chamber of commerce; a representative of the service clubs of such municipality; a representative of the legal profession; and a representative of a recognized real estate dealer’s association.

N. J. 8. A. 40:55B-8 sets forth the purposes, functions, and powers (in addition to the general powers, N. J. 8. A. 40:55B-7) of these commissions;

Every commission created under this chapter shall constitute the corporate instrumentality of the municipality, by which it is created, for the following purposes:
a. To inquire into, survey and publicize the extent, advantages and utility of the vacant lands of such municipality, whether municipally owned or otherwise.
b. To classify such vacant lands according to their adaptability for the settlement thereon of various types of industrial enterprises.
c. To study and analyze the various industries of the nation and, to the extent it deems necessary for its purposes, the industries of other nations, with a view to ascertaining the opportunities for the industrial expansion of the municipality. In this connection the reports, records, statistics, compenda and similar documents of existing federal, state, county, municipal and other governmental and public agencies, as well as of responsible private institutions, boards, agencies and similar bodies interested in the compilation of the information relating to industry, shall be resorted to, wherever possible, in order to avoid unnecessary original research and gathering of source material.
d. To advertise the industrial advantages and opportunities of its municipality and the availability of real estate within the municipality for industrial settlement and to encourage and accomplish such industrial settlement within the municipality.
e. To solicit the several industries to purchase or lease the vacant lands and property of or in the municipality.
f. To accomplish the sale or lease of the municipality’s vacant lands to industries whose settlement thereon is best calculated, in the judgment of the commission, to advance the interests of the municipality and of its citizens and inhabitants.
g. To acquire title to vacant land owned by the municipality for the purpose of resale or lease to industries whose presence within the municipality will benefit in the judgment of the commission, its citizens and inhabitants.

N. J. S. A. 40:5oB-9 states:

The commission shall make a study of the tax structure with a view to reducing the tax burden of the municipality.

The Howell Township ordinance creating the municipal Industrial Commission substantially incorporates the provisions of N. J. 8. A. 40:55B-1, et seq., and specifically follows the language of Section 5, above, providing for the qualifications and selection procedure for members of the commission.

Plaintiff draws particular attention to the statutory and ordinance requirements that members should have had experience in industry or commerce, be conversant with industrial needs and facilities of the Township, and be of known devotion to public service, and that the commission should, where appropriate, include a representative of mill properties, labor, banks, the Chamber of Commerce, the legal profession and a real estate dealers’ association.

When defendant Patterson was appointed to the Commission in September 1972, the Commission had no representative of labor, the Chamber of Commerce, the legal profession, or a recognized real estate dealers’ association. The Commission did have members with a background in real estate, in banking and in the operation of mill properties. Two of the members of the Commission had an agricultural background.

Plaintiff asserts that since at the time of defendant Patterson’s appointment the Commission already had two members representing agricultural interests, and Patterson is an owner and operator of a dairy farm, his appointment is inappropriate. Plaintiff contends that this appointment was made at a time when local conditions in the Township of Howell did not require it, that only appointments of persons in the categories not yet represented on the Commission would have been appropriate, and that therefore Patterson’s appointment was arbitrary, capricious, unreasonable and contrary to the ordinance and statute.

After the Commission was established, applications from residents interested in serving on it were solicited before appointments were made. Defendants argue that the seven categories set forth in the statute and ordinance are well represented on the Commission by individuals whose background, experience and expertise include mill ownership and operation, labor, Township banks, the Chamber of Commerce, Township service clubs and the real estate profession. Defendants assert that since the township attorney serves as attorney for the Commission, he is a sufficient representative of the legal profession. Patterson was a member of the Howell Township School Board for a number of years, a member of the Township Committee for three years and Mayor for one year. He was also on the Planning Board for three years. In addition to his farming activities, he is a member of the Earmingdale Grange which was described as being a service organization serving Howell Township.

Plaintiff seeks (1) a declaratory judgment that the Industrial Commission is illegal and void and the result of arbitrary, capricious and unreasonable appointments by the present mayor and former mayors of Howell Township; (2) an order restraining Patterson from acting as a member of the Commission; (3) an order directing the mayor to appoint replacements for Patterson and other challenged members; and (4) an order directing the mayor to follow the statute in appointing future members.

Defendants argue that plaintiff is barred by B. 4:69-6 or laches from challenging the appointment of members of the Commission other than Patterson.

R. 4:69-6 provides:

(a) General limitation. No action in lieu of prerogative writs shall be commenced later than 45 days after the accrual of the right to the review, hearing or relief claimed, * * *.
* * * si? sjt si: t'r
(e) Enlargement. The court may enlarge the period of time provided in paragraph (a) * * * where it is manifest that the interest of justice so requires.

Generally, a cause of action accrues when facts exist which entitle one party to maintain an action against another. Band’s Refuse Removal, Inc. v. Fair Lawn, 62 N. J. Super. 522, 540 (App. Div.), modified 64 N. J. Super. 1 (App. Div.), certif. den. 33 N. J. 387 (1960); Marini v. Borough of Wanaque, 37 N. J. Super. 32, 38 (App. Div. 1955).

The rule is generally established that mere ignorance of the existence of a cause of action or of the facts which constitute a cause of action will not prevent the running of the statute of limitations or postpone the commencement of the period of limitation. Diamond v. N. J. Bell Telephone Co. et al., 51 N. J. 594, 597 (1968); Joseph v. Lesnevich, 56 N. J. Super. 340, 355 (App. Div. 1959) ; Zimmerman v. Cherivtch, 5 N. J. Super. 590, 593 (Law Div. 1949). The only exception made to this rule has been where the basis for an action has been fraudulently concealed, Joseph v. Lesnevich, supra, 56 N. J. Super. at 355; Zimmerman v. Cherivtch, supra, 5 N. J. Super. at 593-594, or where the facts of which plaintiff is ignorant could not have been discovered by reasonable inquiry or diligence. Cf. Diamond v. N. J. Bell Telephone Co. et al., supra, 51 N. J. at 597; 51 Am. Jur. 2d, Limitation of Actions, § 146, p. 715 (1970). It has been held that each official step in the course of an illegal program has the capacity to invoke the remedy of certiorari without the necessity of awaiting specific damage or tangible manifestations. Marini v. Borough of Wanaque, supra, 37 N. J. Super. at 38.

Similar criteria have been applied to the defense of laches also relied on by defendants in this case. Whether laches bars a cause of action depends on the circumstances of the case. Donnelly v. Ritzendollar, 14 N. J. 96, 107 (1953); Schultze v. Wilson, 54 N. J. Super. 309, 324 (App. Div.), certif. den. 29 N. J. 511 (1959). Generally, laches is not imputed to one who has no knowledge, or means of acquiring knowledge, of the facts giving rise to his cause of action. Id. The mere lapse of time does not constitute laches. The delay must be unreasonable under the circumstances which, unexplained and unexcused, has been prejudicial to the party asserting it. West Jersey Title, etc., Co. v. Industrial Trust Co., 27 N. J. 144, 153 (1958); Hill Dredging Corp. v. Risley, 18 N. J. 501, 537 (1955); Stroebel v. Jefferson Trucking & Rigging Co., 125 N. J. L. 484, 488 (E. & A. 1940).

Exceptions to the time limitations imposed upon the in lieu procedure should be but exceptionally condoned and only in the most persuasive circumstances. Robbins v. Jersey City, 23 N. J. 229, 238 (1957); Kent, et al. v. Bor. of Mendham et al., 111 N. J. Super. 67, 76 (App. Div. 1970). R. 4:69-6(c) was intended to restate in the form of a generalized standard decisional exceptions which had been engrafted upon the former limitation rules. Schack v. Trimble, 28 N. J. 40, 48 (1958). These exceptions include: substantial and novel constitutional issues, informal or ex parte determinations made by administrative officials which do not involve “a sufficient crystallization of a dispute along firm lines to call forth the policy of repose,” and an important public rather than private interest requiring adjudication. See Schack v. Trimble, supra, 28 N. J. at 47, 49-51; Kent, et al. v. Bor. of Mendham et al., supra, 111 N. J. Super. at 76; Bernstein v. Krom, 111 N. J. Super. 559, 564 (App. Div. 1970).

Plaintiff’s complaint falls within none of the exceptions to the limitation rule. Insofar as plaintiff seeks to challenge individual appointments made to the Commission more than 45 days before the complaint was filed on October 17, 1972 the challenge is out of time. All the appointments except of Patterson were made more than 45 days before October 17, 1972.

Is the language of N. J. S. A. 40:55B-5 governing the Commission’s composition directory or mandatory; and if mandatory, is it unconstitutional because of unreasonable classification ?

The language specifically challenged reads:

Each member shall be chosen with a special view to his qualifications and fitness for service on the commission. He shall have had experience in industry or commerce and shall be conversant with the industrial needs and facilities of his commission’s municipality, and shall be of known devotion to public service.
There shall be appointed upon said commission, unless local conditions shall otherwise require, at least one thoroughly competent representative of mill owners and operators of mill properties; a representative of labor; a representative of the clearing house or banks of said municipality; a representative of the chamber of com-' merce; a representative of the service clubs of such municipality; a representative of the legal profession; and a representative of a recognized real estate dealer’s association.

In determining whether a statute is mandatory or directive regard shall be had to the purpose and intent of the Legislature. The word “may” is ordinarily permissive or directory, and the words “must” and “shall” are generally mandatory. Such terms, however, have been held to be interchangeable whenever necessary to execute the clear intent of the Legislature. Such intent may be implied from the language used or inferred on grounds of policy and reasonableness. Harvey v. Essex County Board of Freeholders, 30 N. J. 381, 391-392 (1959).

There is a presumption that the word “shall” is used in an imperative and not a directory sense, and while this presumption is not a conclusive one it can only be overthrown by something in the character of the legislation or in the context which will justify a different meaning. Union Terminal Cold Storage Co. v. Spence, 17 N. J. 162, 166 (1954); In re Munson-Lied Co., 68 N. J. Super. 281, 287 (App. Div. 1961).

When the provision of an act contains the essence of the ends sought by the Legislature, it is mandatory; but where it relates to the form and manner and where an act is incidental, it is directory. Keyport Sewerage Authority v. Granata, 52 N. J. Super. 76, 86 (Law Div. 1958); Sheldon v. Sheldon, 100 N. J. Eq. 24, 25 (Ch. 1926). If no public benefit ensues from and no private right is insured by giving the word “shall” an imperative meaning, it is to be construed as directory rather than mandatory. In re Norrell, 139 N. J. Eq. 550, 554 (E. & A. 1947); In re Munson-Lied Co., supra, 68 N. J. Super. at 287.

In Keyport Sewerage Authority v. Granata, supra, the appointment of a member of a Sewerage Authority was challenged on the ground that the resolution appointing him was not filed with the office of the Secretary of State as required by statute. Although the relevant provision used the word “shall,” the court concluded that the essence of the act was to provide sewerage service and that the method by which members were to be appointed was therefore procedural, incidental to the main purpose of the statute, and directory.

In In re Munson-Lied Co., supra, the trial court’s jurisdiction over an assignment proceeding was challenged on the grounds that the assignee had failed to record it in a timely fashion as required by statute. Although the relevant provision used the word “shall,” the Appellate Division concluded that recording of the assignment was a procedural matter, not going to the essence of the act, and was therefore directory.

The Legislature’s intent in adopting N. J. S. A. 40:55B-1 ei seq., may be found in the title to the act from which it is directly derived, L. 1936, c. 154, which states that it is:

AN ACT to permit tlie creation by the governing body of any municipality of this State of a local industrial commission, with authority to inquire into, survey and publicize the extent and advantages of the municipalities creating such commissions, and defining, the powers and duties of commissions so created, and of the creating municipalities in connection therewith.

The purposes of the act set forth in N. J. S. A. 40 :55B-á have already been quoted. It is apparent that the Legislature’s intent, and the essence of the act, is to create an industrial commission to insure efficient and effective industrial development of individual municipalities. The challenged provision, N. J. 8. A. 40:55B-5, essentially provides that the composition of the Commission shall be appropriate to achieve these goals, that is, that its members shall be familiar with the community and experienced in the skills necessary to plan for industrial growth. The precise categories of experience listed are expressly discretionary where “local conditions shall otherwise require,” and such would necessarily be the case, even if this proviso were not included, since not every community is certain to include representatives of the seven categories listed.

In view of the flexibility of the challenged language, the-way in which the statute must apply in practice, and the fact that these categories are essentially procedural requirements-not directly related to what appears to be the essence of the-act, the requirements of N. J. 8. A. 40 :55B-5 are directory., not mandatory.

If this conclusion is accepted, the issue of the constitutionality of the categories set up in the act is moot. However, this question will be considered because one knows not whither this record may go.

There is a strong presumption that a statute is-constitutional, and a legislative act will not be declared void unless its repugnancy to the Constitution is clear beyond a reasonable doubt. To declare a statute unconstitutional is a judicial power to be delicately exercised. Harvey v. Essex County Board of Freeholders, supra, 30 N. J. at 388.

The constitutional requirement of equal protection is met by legislation which treats all persons within a class reasonably selected in a like or similar manner. Robson v. Rodriquez, 26 N. J. 517, 523 (1958). The nature of legislative classifications was considered by Justice Heher in Washington National Ins. Co. v. Board of Review, 1 N. J. 545 (1949) :

Though the state has a broad discretion in the selection of the class, it is requisite that the classification have a reasonable and just relation either to the general object of the legislation or to some substantial consideration of public policy or convenience or the service of the general welfare. Otherwise, there would be arbitrary discrimination. The Legislature may, without running afoul of the Fourteenth Amendment or the due process and equality clauses of the State Constitution, make distinctions of degree having a rational basis; and they will be presumed to rest on that basis if there be any conceivable state of facts which would afford reasonable ground for its action. Carmichael v. Southern Coal & Coke Co., 301 U. S. 495, 57 S. Ct. 868, 81 L. Ed. 1245 (1937) ; Charles C. Steward Machine Co. v. Davis, 301 U. S. 548, 57 S. Ct. 883, 81 L. Ed. 1279 (1937). These constitutional limitations safeguard the fundamental rights of persons and of property against arbitrary and oppressive state action. Singer Sewing Machine Co. v. New Jersey Unemployment Compensation Commission, 128 N. J. L. 611 (Sup. Ct. 1942), affirmed 150 [130] N. J. L. 173 (E. & A. 1943).
* S’ * * S' * « *
The equal protection clause means that the right of all persons must rest upon the same rule under similar circumstances, and that it applies to the exercise of all the powers of the state which can affect the individual or his property, including the power of taxation. Louisville Gas & Electric Co. v. Coleman, 277 U. S. 32, 48 S. Ct. 423, 72 L. Ed. 770 (1928). While the due process and equal protection guaranties are not coterminous in their spheres of protection, equality of right is fundamental in both. Each forbids class .legislation arbitrarily discriminatory against some and favoring others in like circumstances. It is essential that the classification itself be reasonable and not arbitrary, and be based upon material and substantial distinctions and differences reasonably related to the subject matter of the legislation or considerations of policy, and that there be uniformity within the class. The equal protection of the laws means that no person or class of persons shall be denied the protection of the laws enjoyed by other persons or classes of persons under similar conditions and circumstances, in their lives, liberty, and property, and in the pursuit of happiness, both as respects privileges conferred and burdens imposed. [1 N. J. at 552-553]

Equal protection does not require that all persons he dealt with identically. N. J. Chapt., Am. I. P. v. N. J. State Bd. of Prof. Planners, 48 N. J. 581, 601, appeal dismissed, cert. den. 389 U. S. 8, 88 S. Ct. 70, 19 L. Ed. 2d 8 (1967).

Generally state legislatures are presumed to have acted within their constitutional powers despite the fact that in practice their laws result in inequality. A statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it. State in Interest of K. V. N., 116 N. J. Super. 580, 587 (App. Div. 1971), aff’d o. b. 60 N. J. 517 (1972).

The Legislature may prescribe qualifications which reasonably relate to the needs of office-holding or to the specialized demands of an office. Alongi v. Schatzman, 57 N. J. 564, 575 (1971). The Legislature’s powers in this regard extend also to qualifications for appointive positions. See Brown v. State, et al., 115 N. J. Super. 348, 351 (App. Div.), certif. den. 59 N. J. 273 (1971); Mulligan v. Wilson, 110 N. J. Super. 167, 172-173 (App. Div. 1970).

The qualifications for appointment to an industrial commission set forth in N. J. S. A. 40:55B-5, whether viewed as mandatory or directory, are reasonably related to the specialized demands of membership on such a commission as well as to the demands on the Commission as a whole.

It is argued that even if the statute and the ordinance based on it are directory and constitutional, the mayor exercised his discretionary authority arbitrarily and capriciously in choosing Patterson.

Plaintiff’s action may be viewed as one in lieu of certiorari seeking to review the mayor’s exercise of discretion. The remedy of certiorari is available to persons whose rights are invaded by acts of persons clothed with authority to act but exercising such authority illegally. McKenna v. N. J. Highway Authority, 19 N. J. 270, 275 (1955). It is a common law mode of review to correct errors of law apparent on the face of the record or proceedings of an inferior judicial or quasi-judicial tribunal. Baldwin Const. Co. v. Essex County Bd. of Taxation, 16 N. J. 329, 345 (1954).

Improper acts of municipal officers and boards can be reviewed by certiorari. P. & J. Auto Body v. Miller, 72 N. J. Super. 207, 212 (App. Div. 1962). However, the exercise of discretionary authority will not be disturbed unless palpably abused, in that the action taken is arbitrary. See Dubin v. Wich, 120 N. J. L. 469, 471 (Sup. Ct. 1938).

Plaintiff has alleged only that not all seven suggested categories of expertise are represented on the Industrial Commission. Plaintiff has not suggested that the successive mayors who made these appointments had any suitable alternatives to the people appointed, or that citizens representative of the missing categories were available for service on the commission. Plaintiff complains that agricultural interests are over-represented, but it is noted that so long as Howell Township remains primarily rural, people with agricultural expertise will continue to be most readily available for and involved in community service.

In sum, plaintiff has not shown that Mayor Barnes or, for that matter, his predecessors have done anything other than to carry out their statutory mandate in appointing Commission members who have had “experience in industry or commerce,” are “conversant with industrial needs and facilities of the Township,” are “of known devotion to public service,” and represent the suggested categories of expertise where possible. No abuse of discretion has been shown.

The complaint will be dismissed.


source: Caselaw Access Project

author: PASHMAii, A. J. S. C.

license: Public Domain

text:
    APARTMENT HOUSE COUNCIL, AN AFFILIATE OF THE NEW JERSEY BUILDERS ASSOC., A CORPORATION OF THE STATE OF NEW JERSEY, AND ROBERT RODRIGUEZ, PLAINTIFFS, v. MAYOR AND COUNCIL OF THE BOROUGH OF RIDGEFIELD, THE BOROUGH OF RIDGEFIELD, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, THE DEPARTMENT OF HEALTH OF THE BOROUGH OF RIDGEFIELD, AND THE RIDGEFIELD MULTIPLE DWELLING EMERGENCY COMMISSION, DEFENDANTS.
    Superior Court of New Jersey Law Division
    Decided February 27, 1973.

      Mr. Richard W. Kracht for plaintiffs Apartment House Council and Robert Rodriguez (Messrs. Hutt and Berlcow, attorneys; Mr. Richard W. Kracht on the brief).

      Mr. Michael L. Scherby for defendants Mayor, Council, and Department of Health of the Borough of Ridgefield and The Ridgefield Multiple Dwelling Emergency Commission.

      Mr. Steven Helterman, amicus curiae, for the State Office of Legal Services and the Legal Services Housing Task Force (Messrs. Steven Helterman, Gerard J. Ciarle, Richard E. Bhmberg and Ms. Delores Mastro on the brief).
   PASHMAii, A. J. S. C.

Plaintiff Apartment House Council is a New Jersey corporation consisting of builders who own and operate apartments, as does plaintiff Rodriguez in the defendant Borough of Ridgefield.

Plaintiffs challenge the constitutionality of a 19 72 ordinance of said borough which requires owners of multiple dwellings to post security with a Multiple Dwelling Emergency Commission (hereinafter Commission) established for this purpose. The Commission is empowered to expend monies from the fund thus collected for purposes of repairs in apartments where tile landlord, after 24 hours’ notice, has failed to correct defective “emergency” conditions.

Neither party alleges that there exists any genuine dispute as to the material facts. Accordingly, the matter is ripe for summary judgment under B. 4:46 and B. 4:67.

The ordinance provides for Commission action, after proper notice to the landlord, when “emergency conditions” exist, as determined by that Commission, including:

(1) Lack of adequate ventilation or light;
(2) Lack of adequate and properly functioning sanitary facilities;
(3) Lack of adequate and healthful water supply;
(4) Structural, mechanical or electrical defects which increase the hazards of fire, accident or other calamity;
(5) Lack of adequate heat during specified months and specified times of the day.

The ordinance is challenged on the following grounds:

(1) There is no statutory authority permitting the defendant borough to adopt the ordinance and that there is no need for such an ordinance to protect the public health, safety and welfare of the community;
(2) The ordinance fails to provide for a hearing to determine the existence of an emergency and its cause;
(3) The Commission alone is the enforcing body with no right of appeal from its decision, and
(4) The ordinance places an unreasonable burden on landlords in order to comply with its requirements.

I. STATUTOBY AUTHOBITY

The challenged ordinance states that it is authorized pursuant to the general grant of power to municipalities set forth in N. J. 8. A. 40:48-2, which provides as follows:

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

Plaintiffs contend that the ordinance can be valid only if there was a need for it in order to protect the general public welfare. Such a reading of N. J. S. A. 40 :48-2 ignores the last phrase as emphasized above. The municipality may act whenever necessary to carry into effect the powers and duties conferred by state law.

We have in the present case an example of a municipality which has utilized this legislative authorization precisely as intended. As plaintiffs have acknowledged, N. J. S. A. 2A:42-74 et seq. is a statutory authorization to municipalities to protect inhabitants o£ multiple dwellings which have deteriorated through landlord neglect to a point at which local officials may deem the dwellings substandard. These sections are designed as a means to allow municipalities to ensure that multiple dwellings adhere to minimum standards of safety and sanitation. This “minimum standards” legislation was the starting point for the right of municipalities to enact ordinances aimed at shoring up substandard and otherwise defective housing. The ordinance in question should be considered on the same level as any ordinance enacted pursuant to this “minimum standards” legislation. It is a municipal expression of compliance with the Legislature’s desire to allow such local control over housing problems which are essentially local in concern and thus should be local in solution. See various observations in Inganamort v. Fort Lee, 120 N. J. Super. 286 (1972).

It should be noted parenthetically at this point that there is no issue in this case of preemption by the State Legislature of the field of substandard housing. The Supreme Court of New Jersey decided the issue of preemption in Summer v. Teaneck, 53 N. J. 548 (1969). Chief Justice Weintraub articulated the rule to be as follows:

It is not enough that the Legislature has legislated upon the subject, for the question is whether the Legislature intended its action to preclude the exercise of the delegated police power. * * * The ultimate question is whether * * * it can be said with confidence that the Legislature intended to immobilize the municipalities from dealing with local aspects otherwise within their power to act. [at 554-555]

Such is clearly not the case in the matter before us. There is here a clear legislative intent that the local police power shall noi be impaired by any provision of the “minimum standards” legislation. N. J. S. A. 2A:42-84 states as follows :

Nothing in this act shall be construed to abrogate or impair the powers of the courts or of any department of any municipality to enforce any provisions of its charter or its ordinances or regulations, nor to prevent or punish violations thereof; and the powers conferred by this act shall be in addition and supplemental to the powers conferred by any other law.

Eurthermore, there is another statutory expression of the Legislature’s specific grant of authority to municipalities to regulate in the field of substandard housing and here, too, it is indicated that preempton was not intended. In N. J. S. A. 40:48-2.11, there is found the identical wording to that in N. J. S. A. 2A :42-84. The former section is part of N. J. 8. A. 40:48-2.3 et seq., which is an act concerning the police power as it relates to unfit buildings. A statement of the extent of the power conferred by this act appears in N. J. S. A. 40:48-2:12a:

The governing body of any municipality may make, amend, repeal and enforce ordinances to regulate buildings and structures and their use and occupation to prevent and abate conditions therein harmful to the health and safety of the occupants of said buildings and structures and the general public in the municipality. [L. 1962, c. 66, § 1]

Other provisions of the act set forth procedures whereby municipalities may undertake to exercise its police power and abate conditions which are harmful to health and safety. However, as noted, these procedures were meant to supplement, not supersede, any measures which the municipality might choose to take pursuant to its exercise of police power or under any other law. N. J. S. A. 40 :48-2.11.

Thus, it is clear that we are dealing not with a preempted subject matter, that of inadequate housing, but rather with an area in which there are clear legislative mandates to the municipalities to act.

Further, the ordinance is in keeping with reasoning set forth by the Supreme Court in New Jersey Builders Ass’n v. East Brunswick Tp., 60 N. J. 222 (1972). An ordinance in that case sought to regulate building contractors by imposing upon them the requirement of posting a bond. The court struck down the ordinance for vagueness, yet it upheld the concept of a municipality’s valid interest in imposing controls on an industry which so vitally affects the general welfare of local inhabitants. Justice Mountain, speaking for the court, held that so long as the standards and procedures are reasonably imposed and clearly set forth,

* * * [w]e see no reason, as an abstract proposition, why a municipality, as well as the State, may not employ a bond requirement as an appropriate means of pursuing its effort, directed in the public interest, to regulate and supervise building contractors, [at 231]

The court reasoned thus even without a specific legislative mandate such as that which is present in the case at bar. Clearly, therefore, both in the interest of the general welfare and as the implementation of the Legislature’s will, the ordinance cannot fall for want of statutory authority.

But if it is assumed that there is no delegation of authority by statute, I believe that the inherent police power of Eidgefield permits this legislation. A municipal corporation is a government created by the Legislature. It possesses enumerated powers only and therefore it must act within the bounds of its delegated authority. N. J. Const. (1947), Art. IV, § VII, par. 11, declares that laws concerning municipal corporations should he liberally construed in their favor and shall include not only powers expressly granted but also those which are necessary or incidental to the powers conferred.

The history of the police power is a story of growth. And with this economic growth there are increasing restraints upon property rights. The police power must include a vast reservoir.

And not only are the rent control features of N. J. 8. A. 2ÁA2-74, approved in 1966, an exercise in liberalized relations between landlord and tenant, but N. J. 8. A. 2A.A2—85 pertaining to actions for maintenance of safe and sanitary housing, approved in 1971, clearly has pointed up the philosophy of the Legislature in permitting tenants to deposit their rents until such dwelling units satisfy minimum standards of safety and sanitation.

The delegated powers and the general police powers clearly warrant the conclusion that no preemption was carried out and that the Legislature did not intend to prohibit such regulation over multiple housing facilities as is contemplated in this ordinance.

Neither statute concerns itself with the “emergency conditions,” as defined in section YI-B of the ordinance. The situations included in “emergency conditions” must be injurious to health or safety of the occupants of the building which arise out of stated circumstances. These conditions apply to ventilation, light, sanitary facilities, water supply, electrical facilities which increase fire hazards, and heat. The conditions must pose an immediate threat.

Property rights must serve human values and must be limited by those same values. Social enlightenment cries out for a more meaningful relationship between landlord and tenant. It is no comfort to a tenant, with the emergencies stated, to pay rent into court or even have rent controlled under the statute.

With more than one-third of our population living in apartments and other rental housing and one’s home being the heart of privacy in America, the law cannot be so helpless that an immediate effort could not be made in the interest of proper and safe shelter. The dignity of every human being demands a right to be housed. It is an affront to the dignity of that human to provide indecent housing even for a short spell. And that right presupposes continued habitation without being uprooted. Any plan which implements that understanding and does not constitutionally interfere with one’s property rights as I have envisioned them, should be legally acceptable.

Provisions in this ordinance for correcting failures creating emergency situations posing an immediate threat to health and safety are constitutional. If it is lawful for a landlord to demand and receive from a tenant security for the faithful performance of the tenant’s lease, it is equally lawful for the landlord to post some security for the faithful performance of the landlord’s obligations under the lease. The arrangement is equitable. The dignity of tenant and landlord alike will be enhanced.

II. HEARING

Another proposed ground for striking down the ordinance is its alleged failure to allow a hearing prior to action by the Commission. While, as originally drafted, the ordinance contained no mention of a hearing, such an omission would not be a sufficient basis for striking down an otherwise constitutionally sound ordinance. The United States Supreme Court has held that due process requires a hearing before a deprivation of property can occur. Fuentes v. Shevin, 407 U. S. 67, 92 S. Ct. 1983, 32 L. Ed. 2d 556 (1972). Yet, as the court therein observed,

* * * due process tolerates variances in the form of a hearing “appropriate to the nature of the case,” Mullane v. Centrol Hanover Tr. Co., 339 U. S. 306, 313, 70 S. Ct. 652, 94 L. Ed. 865 [1950] * * * and “depending upon the importance of the interests involved and the nature of the subsequent proceedings (if any),” Boddie v. Connecticut, 401 U. S. 371, 378, 91 S. Ct. 780, 28 L. Ed. 2d 113 [1971] * * *. [Emphasis in original; at 1995]

In the case at bar any situation in which the Commission would act must be, by definition, an emergency situation. In keeping, therefore, with the Fuentes language, any hearing regarding the expenditure of funds under this ordinance must be commensurate with the emergent nature of the circumstances.

As noted above, the ordinance is an implementation and extension of the “minimum standards” legislation, which includes the requirement that before rent controls may be imposed, the public officer (or one in charge of the condition of buildings) shall set a time and place for a due process hearing. N. J. 8. A. 2A:42-77. I find that the provisions set forth therein shall be read so as to apply to and supersede any contrary provisions of the ordinance, but that any hearing to be held pursuant to the ordinance must by necessity be in keeping with the emergent nature of the circumstances. See Fuentes, sufra.

Even without a specific grant of a hearing prior to determination that an emergency exists and that funds are to be expended to correct the. situation, we could not fault this ordinance in a constitutional sense. When conditions exist such as those which the ordinance defines as “emergency conditions,” it can be said that a public nuisance has been created. Indeed, the conditions listed in the ordinance, i. e., lack of adequate heat, various fire hazards, etc., can be found either particularly or within the language of N. J. 8. A. 40 :48-2.3, which sets forth the legislative findings and purposes in declaring that municipalities may act pursuant to their police power to abate conditions detrimental to the public health and safety in deficient housing:

It is hereby found and declared that the existence or occupation of any building or buildings, or parts thereof, in municipalities of this State which are so old, dilapidated or have become so out of repair as to be dangerous, unsafe, insanitary or otherwise unfit for human habitation, or occupancy, or use, are inimical to the welfare and dangerous and injurious to the health and safety of the people of this State, and that a public necessity exists for the repair, closing or demolition of such building or buildings, or part thereof. Whenever any municipality of this State finds that there exists in such municipality any building or buildings which are unfit for human habitation or occupancy, or use, due to dilapidation, defects increasing the hazards of fire, accidents or other calamities, lack of ventilation, light or sanitation facilities, or due to other conditions rendering such building or buildings, or part thereof, unsafe or insanitary, or dangerous or detrimental to the health or safety or otherwise inimical to the welfare of the residents of said municipality, power is hereby conferred upon such municipality to exercise its police powers to repair, close or demolish, or cause or require the repairing, closing or demolition of such building or buildings, or part thereof, in the manner herein provided. [A. J. S. A. 40:48-2.3]

Again, it should be noted that “the manner herein provided” as per above, is supplemental to, and not in lieu of, the powers of municipal officers conferred by any other law. N. J. S. A. 40:48—2.11.

It takes no stretch of legal reasoning to realize that the conditions outlined in this statute constitute what has long been described as “public nuisance,” a condition which has always been within the police power of localities to abate in a summary fashion. Lawton v. Steele, 152 U. S. 133, 14 S. Ct. 499, 38 L. ed. 385 (1894) ; Ajamian v. Twp. of N. Bergen, 103 N. J. Super. 61 (Law Div. 1968), aff’d 107 N. J. Super. 175 (App. Div. 1969), cert. den. 398 U. S. 952, 90 S. Ct. 1873, 26 L. Ed. 2d 292 (1970)

Lawton concerned a New York statute authorizing the taking of certain fishing nets, which were declared a public nuisance. While the taking was not necessarily for health reasons, the principle of summary abatement remains the same, and the United States Supreme Court upheld the statute, stating as follows:

The extent and limits of what is known as the “police power” * * * is universally conceded to include everything essential to the public safety, health, and morals, and to justify the destruction or abatement, by summary proceedings, of whatever may be regarded as a public nuisance. * * :i' [T']he state may interfere wherever the public interests demand it, and in this particular a large discretion is necessarily vested in the legislature to determine, not only what the interests of the public require, but what measures are necessary for the protection of such interests. * * * The legislature may not, under the guise of protecting the public interests, arbitrarily interfere with private business, or impose unusual and unnecessary restrictions upon lawful occupations; in other words, its determination as to what is a proper exercise of its police powers is not final or conclusive, but is subject to the supervision of the courts. * * * [152 U. S. at 136-137, 14 S. Ct. at 500, 501 emphasis added]

The court then continued, after a discussion largely concerning the regulation of fishing rights, and upheld the statute although it authorized proceeding in a summary manner to abate the nuisance:

* * * [T]he summary abatement of nuisances without judicial process or proceeding was well known to the common law long prior to the adoption of the constitution, * * *.
Nor is a person whose property is seized under the act in question without his legal remedy. If, in fact, his property has been used in violation of the act, he has no just reason to complain; if not, he may replevy his nets from the officer seizing them, or, if they have been destroyed, may have his action for their value. In such eases the burden would be upon the defendant to prove a justification under the statute. * * * Indeed, it is scarcely possible that any actual injustice could be done in the practical administration of the act. [Id. at 142, 14 S. Ct. at 503]

It is clear that the summary destruction of fish nets is at best only remotely connected with the needs of inhabitants of inadequate housing, but the principle remains the same — that summary abatement of public nuisances is an old and accepted practice which passes constitutional muster. Any misapplication of this principle can be remedied in the courts, and a full due process hearing prior to action in an emergency situation is neither constitutionally required nor is it prudent from an environmental standpoint.

An old New Jersey case takes this same position. Manhattan Manufacturng and Fertilizing Co. v. Van Keuren, 23 N. J. Eq. 251 (Ch. 1872). The court therein stated:

At common law, it was always the right of a citizen, without official authority, to abate a public nuisance, and without waiting to have it adjudged such by a legal tribunal. If he assumed to act upon his own adjudication that it was, and such adjudication was afterwards shown to be wrong, he was liable, as a wrongdoer, for his error, and appropriate damages could be recovered against him. This common law right still exists in full force. Any citizen, acting either as an individual or as a public official under the orders of local or municipal authorities, whether such orders be or be not in pursuance of special legislation or chartered provisions may abate what the common law deemed a public nuisance. In abating it properly may be destroyed and the owner deprived of it without trial, without notice, and without compensation. Such destruction for the public safety or health is not a taking of private property for public use, without compensation or due process of law, in the sense of the Constitution, [at 255]

This language was quoted and restated in Ajamian v. North Bergen Tp., supra, in which the Superior Court, Law Division, upheld the right of the township, both under N. J. S. A. 40:48-2.3 and 2.11 and at common law, to order summarily the vacating of a building that was a public nuisance, and the township was not liable in damages to the owner. The court stated:

In City of Miami Beach v. Texas Co., 141 Fla. 616, 194 So. 368 (Sup. Ct. 1940), where an ordinance authorized health officials to condemn a building as unfit, it was held that the effect of the ordinance was to declare the building a public nuisance. * * * Thus, where article 13, section 4 of the North Bergen Sanitary Code authorizes the closing of a building as being “unfit for human habitation by reason of its being so infected with disease or by reason of its being in a condition dangerous to health or life or to be likely to cause sickness among the occupants,” it, too, declares a building within its terms a public nuisance. Such abatement for public safety or health is not a taking of private property for public use without compensation or due process of law, in the sense of the Constitution. It is simply the prevention of its noxious and unlawful use and in that context the safety of the public is the paramount law. * *' *
This is not to say that one whose property has been summarily taken, vacated or destroyed is not entitled to a hearing at some stage in the proceedings. * 45 *
By this action in lieu of prerogative writs, plaintiff is “calling upon” defendants, who vacated the property, “to account for the same.” He has been afforded the opportunity in this court “to show that the alleged nuisance was not one in fact.” Here he has had his hearing. [103 JV. J. Super, at 74-76]

Following this line of reasoning, it is clear to this court that the occurrence of any of the emergency conditions expressed in the Ridgefield ordinance would constitute what has long been termed a public nuisance. The municipality has the power, both under N. J. S. A. 40:48-2.3 and the common law, to abate such conditions by expenditure of money from the funds collected pursuant to the ordinance. N. J. S. A. 40:48-2.3 speaks in terms of the power of a municipality “to repair” or “cause or require the repairing” of defective housing conditions. As indicated earlier, this ordinance is an implementation of this mandate, as it is of the mandate of the “minimum standards” rent control statute, N. J. S. A. 2A:42-74 et seq. While our discussion of the “public nuisance” aspect of this case indicates that no due process hearing is required in public nuisance situations, the ordinance is supportable in the alternative by reading into the ordinance whatever due process safeguards are provided in these two acts, but modified according to the emergent nature of the circumstances. Fuentes v. Shevin, supra. If this modification requires, for the sake of quick action, that the hearing be held only after the money has already been expended, then this surely will satisfy any due process objection to the ordinance, since, as I have extensively indicated, it may be upheld without any hearing requirement at all on “public nuisance” grounds.

A third alternative theory on which to uphold this ordinance on due process grounds has been provided by the Borough of Ridgefield. An amendment to the ordinance has been adopted which provides for notice to the landlord “immediately” after expenditure of the amount necessary to bring his share of the fund up to the required amount within certain time limitations. It also provides for an appeal and hearing before the mayor and council as to whether an emergency actually did exist and whether the amount expended was reasonable. This is, of course, an advisable measure and further supports the validity of the ordinance from a due process standpoint. However, the ordinance, as the discussion above amply demonstrates, does not stand or fall on this amendment alone.

The foregoing observations are underscored by the general statutory and constitutional mandate that there is a presumption of validity of municipal ordinances which are to be construed liberally in favor of upholding them. N. J. Const. (1947), Art. IV, § VII, par. 11. N. J. S. A. 40:42-4 provides as follows:

In construing the provisions this subtitle, all courts shall construe the same most favorably to municipalities, it being the intention to give all municipalities to which this subtitle applies the fullest and most complete powers possible over the internal affairs of such municipalities for local self-government.

Pursuant to these mandates, it is my view that the ordinance is not invalid by reason of due process grounds.

III. DELEGATION OF AUTHORITY AND APPEAL

In challenging the ordinance’s delegation of power to the Commission, plaintiffs point to the ruling of this court in Inganamort v. Fort Lee, supra. The court upheld the establishment of rent leveling boards which were to exercise an essentially advisory function, with approval of the governing body o£ the municipality required in order to take final action. This advisory capacity was specifically spelled out in the ordinances. Notwithstanding, the court held:

* * * Their advisory roles are mandated by the ordinances. The fact that the rules and regulations promulgated by the Boards are to have the force of law does not detract from that advisory character. Appeal to various governing bodies is always available. The courts provide a source of ultimate review. That is the case with any administrative body. [120 N. J. Super, at 304]

The same language is applicable to the case at bar, even though the Commission in this case may take action without prior approval of the governing body. In Inganamori there was no specific statutory grant of authority to municipalities to do what was done by the localities in that case. They were acting primarily pursuant to the inherent police power of municipalities. Therefore, it was imperative that close and careful scrutiny by the governing body, which is the repository of the local police power, be maintained. In the case at bar, as I have indicated in other portions of this opinion, we are dealing not only with the inherent power of Ridgefield to act for the general welfare of its inhabitants, but we are dealing as well with a municipal implementation of the specific will of the Legislature as embodied in N. J. S. A. 2A:42-74 et seq. and N. J. S. A. 40:48-2.3 et seq. While the “public officer” envisioned in the legislation cannot take final action without prior approval of the governing body, this is not to say that by further implementing the “minimum standards” of adequate housing and expanding the scope of the legislation beyond rent controls as a device in this regard, it is at all improper to delegate responsibility for immediate action to a Commission. As I said in Ingmamort, supra, and as I have said here today, there is always the avenue of appeal to the governing body and to the courts.

We must bear in mind that we are here concerned with emergency situations in which quick action is often necessary to effect immediate repairs. It is much more commensurate with equity and sound environmental judgment to allow the work to be done quickly and without delay, than to force a tenant with limited means into court before he gets action. It is better to do the work now, with responsibility falling upon the Commission, than to endure delays and protracted debate while awaiting approval of the governing body.

The ordinance in question is a proper delegation of authority to an administrative body.

IV. UNREASONABLE BURDEN ON LANDLORDS

Finally, plaintiffs contend that the requirement of posting security places an unreasonable burden on owners of multiple dwellings. The schedule of required payments to the Board of Health is set forth in section III of the ordinance, as follows:

A. Where the owner owns between 4 and 25 dwelling units the owner shall deposit $100.00 for each dwelling unit.
B. Where the owner owns between 26 and 40 dwelling units, the owner shall deposit $2,500.00 for the first 25 units and $50.00 for each additional dwelling unit owned.
O. Where the owner owns more than 40 dwelling units, the owner shall deposit $2,500.00 for the first 25 units, $50.00 per unit for the next 15 units, and $30.00 per unit for each additional dwelling unit.
I). In no event shall an owner be required to deposit more than $5,000 in security funds pursuant to this ordinance * *' *

The allegation that these requirements are unreasonable entirely misses the point of what the ordinance was designed to do. It was intended to take a step toward equalizing the relative positions of bargaining power of landlord and tenant./ The ordinance was designed to establish a counterpart to the requirement that tenants post a security deposit upon occupying an apartment.

The security deposit, like that required of tenants, will ensure that when an emergency repair is needed, the money required to do the job properly will be there. The landlord who complains that he is unable to post the security proves the point he is trying to challenge; he will be equally as unable to correct an emergene}*- defective condition should the occasion present itself. The ordinance requires the landlord, after a fashion, to insure himself to raise the money now, before an emergency arises, so that the money is there when needed. It is unrealistic to contend that this is an unreasonable burden, when the landlord, in the long run, is a beneficiary.

The Bidgefield ordinance is constitutional and effective immediately.


author: Mekedith, J. C. C.

text:
    IN RE JOSEPH GANNON.
    Somerset County Court
    Decided February 23, 1973.

      Mr. Joseph LipofsTcy for Gannon (Mr. James B. Ventantonio, Somerset-Sussex Legal Services attorney).

      Mr. Robert M. Thompson, County Adjuster, for County of Somerset.
   Mekedith, J. C. C.

Movant is an indigent patient at the Veterans Administration Hospital, Lyons, New Jersey. He had entered the hospital voluntarily and later expressed a desire to be released. After his release was denied by the hospital staff, commitment proceedings pursuant to N. J. S. A. 30:4r-23 et seq. were begun in the Somerset County Court. The instant motion has been brought to secure an independent psychiatric examination.

Commitment to a psychiatric hospital obviously entails a significant loss of liberty which, as in a criminal proceeding, must be under due process of law. U. S. Const., Amend. XIV. It is the opinion of this court that in a commitment proceeding due process of law includes the right to an independent psychiatric examination.

The right of an indigent patient to have counsel appointed has already been established, McCorkle v. Smith, 100 N. J. Super. 595 (App. Div. 1968), but the presence of a lawyer at the commitment hearing is not a sufficient safeguard for the patient’s rights. No matter how brilliant the lawyer may be, he is in no position to effectively contest the commitment proceedings because he has no way to rebut the testimony of the psychiatrist from the institution who has already certified to the patient’s insanity under N. J. S. A. 30 :4-29.

This court has had enough experience to know that psychiatrists differ very definitely in their evaluations and diagnoses of mental illness. In a commitment proceeding where the court is in effect bound by the expertise of the psychiatrist, the right to counsel is of little value without a concurrent right to an independent psychiatric examination.

In addition to the due process basis for appointment of an independent psychiatrist, there is an inferential basis in N. J. 8. A. 30:4^42, which provides that the hearing court has the power to order, at the county’s expense, taking and transcription of testimony at a commitment hearing. Such a hearing is of little value, if not actually a sham, when the only testimony is that of the certifying psychiatrist. The Court is of the opinion that N. J. 8. A. 30:4r-42 impliedly authorizes the appointment of an independent psychiatrist to examine the patient at the county’s expense where his testimony is- necessary to make the hearing effective.

The appointment of independent psychiatrists for indigents has been approved in our sister states of New York and Pennsylvania, Anonymous No. 1 v. La Burt, 17 N. Y. 2d 738, 270 N. Y. S. 2d 206, 217 N. E. 2d 31 (Ct. App. 1966); Dixon v. Attorney General of Commonwealth of Penna., 325 F. Supp. 966 (M.D. Pa. 1971), and has been long established in the District of Columbia, De Marcos v. Overholser, 78 U. S. App. D. C. 131, 137 F. 2d 698 (D. C. Cir. 1943); accord, Watson v. Cameron, 114 U. S. App. D. C. 151, 312 F. 2d 878 (D. C. Cir. 1962); Cooper v. United States, 119 U. S. App. D. C. 142, 337 F. 2d 538 (D. C. Cir. 1964).

The right to counsel has not been construed to allow an indigent to choose his own lawyer. Similarly, an indigent in a commitment proceeding should not have the right to “shop around” for a psychiatrist who agrees with him. The independent psychiatrist is to assist the court, not the patient; all he need do is render his best judgment and make all relevant information available both to the court and to the defense. Proctor v. Harris, 134 U. S. App. D. C. 109, 413 F. 2d 383 (D. C. Cir. 1969).

Therefore, the court will entertain an order for the appointment of an independent psychiatrist to examine the movant, such psychiatrist to be designated by the court and paid by the county.

Motion granted.


author: Pee Cttbiam.

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. WILLIAM HIBBS, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued December 14, 1971
    Decided January 14, 1972.

      Before Judges Lewis, Kolovsky and Haleebk.

      Mr. Charles P. Allen argued the cause for appellant (Messrs. Dietrich and Mancino, attorneys).

      Mr. Gerald A. Hughes, Assistant Prosecutor, argued the cause for respondent (Mr. Bruce M. Schragger, Mercer County Prosecutor, attorney).
   Pee Cttbiam.

Defendant was convicted in the Ewing Township Municipal Court of violating the provisions of N. J. 8. A. 2A:170-29 (3) in that he had made obscene telephone calls to two women on various dates. He was again convicted by the County Court on a de novo trial on the record before the Municipal Court, and sentenced to a four months prison term in the Mercer County Workhouse.

It is undisputed that the obscene remarks were proscribed by the statute. The only issue was the identity of the caller. The women who heard the remarks could not identify the caller other than to opine that the voice was that of a young man. Standing alone, their combined testimony would not sustain a conviction, but would have required the court to acquit defendant. However, the State was permitted to introduce testimony to show that tracing equipment had been attached to the victims’ telephone lines which indicated that the calls emanated from a telephone in defendant’s home. The dispositive issue before us is whether the results of such scientific evidence were properly admitted into evidence.

Counsel have represented to us that there are no reported decisions in the country determining the reliability of the telephone tracing equipment used in the instant case. Nor has our research revealed any. We are willing and desirous to utilize scientific techniques to aid us in our quest for the truth in the administration of justice. State v. Walker, 37 N. J. 208 (1962), cert. den. 371 U. S. 850, 83 S. Ct. 89, 9 L. Ed. 2d 86 (1962). We utilized such aids in State v. Johnson, 42 N. J. 146 (1964), wherein the use of the drunkometer machine in drunken driving cases was permitted; State v. Dantonio, 18 N. J. 570 (1955), wherein the use of radar equipment in speeding cases was sanctioned; and State v. Cerciello, 86 N. J. L. 309 (E. & A. 1914), wherein the use of fingerprints to identify individuals was approved.

However, before such new scientific techniques can be utilized, it is essential that the equipment “achieve a high degree of recognition as to [its] reliability” and that “they are administered by qualified persons.” State v. Walker, supra, 37 N. J. at 215. In the instant case, the State offered no testimony to explain the nature and intricacy of the tracing equipment. It presented no proof as to its installation at the telephone company’s central office, or that the reliability of the equipment has received general scientific acceptance.

The only proof offered was through Robert E. Maxwell, Sr., a telephone company employee, whose principal duty was to investigate pre-employment backgrounds of company employees. He was not an engineer; lie knew nothing of the scientific nature of the equipment; he did not know who built it or how often it was tested; he was not associated with the installation or supervision of the equipment; nevertheless he was permitted to express an opinion that the equipment was reliable. The municipal court judge erred in overruling defendant’s objection to Maxwell’s testimony, as did the County Court in utilizing it in convicting defendant. Insufficient proofs were presented by the State to warrant taking judicial notice of the reliability of the tracing equipment.

Since this is the first instance in which the reliability of such equipment has been subjected to court scrutiny, and in view of its probable future importance in detecting criminals, we remand to the County Court for further testimony by ihe State and defendant solely on the issue of the reliability of the tracing equipment. See State v. Cary, 53 N. J. 256, 258 (1969); State v. Sullivan, 43 N. J. 209 (1964). If the court determines that the tracing equipment is not sufficiently accurate to produce results admissible as evidence, then a judgment of acquittal should be entered by it. If it determines that such equipment is admissible as evidence then the former verdict of guilt and the sentence imposed shall remain as entered.

Remanded for the limited purpose set forth herein. The opinion to be filed within 60 days. Jurisdiction is retained if the guilty verdict is confirmed. The remaining issues raised on this appeal will be held pending this remand.


author: Per Curiam. Kogovsky, J. A. D.,

text:
    MATTHEW KAMINSKI AND MADELINE KAMINSKI, PLAINTIFFS-APPELLANTS, v. LONDON PUB, INC., DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Submitted November 28, 1972
    Decided March 7, 1973.

      Before Judges Labbecqtje, Koloysky and Matthews.

      Messrs. Klein, Méllete & Klein, attorneys for appellants (Mr. Paul B. Méllete, of counsel and on the brief).

      Mr. James J. Florio, attorney for respondent (Mr. Joel B. Korin, on the brief).
   Per Curiam.

Plaintiffs, mortgagees under a second mortgage in the amount of $64,000 on premises known as The London Inn, White Horse Pike, Lindenwold, Camden County, owned by deefndant, instituted this action for foreclosure. The mortgage which was a standard form collateral mortgage contained a clause requiring the mortgagor to keep the building on the premises insured against loss from fire. The clause also provided that “if Mortgagor shall at any time default in furnishing any policy ,of insurance agreed to be furnished hereunder * * *, Mortgagee may procure policies of insurance insuring its interest * * * and charge all costs and expenses thereof to Mortgagor * * Elsewhere in the mortgage was a provision that if the mortgagor defaulted in the prompt performance of any promise, covenant or condition of the agreement for a period of ten days, the mortgagee could call the entire mortgage debt. Reasonable attorney’s fees were also to be allowed in connection with any default.

On July 11, 1969 the fire insurance policy on the premises was cancelled for nonpayment of premium. A notice of cancellation was allegedly mailed on June 6, 1969 by the insurer to defendant. Ho notice of the cancellation was mailed to anyone else, notwithstanding that the policy contained a reference to the fact that The Peoples Hational Bank of Camden County was holder of the first mortgage on the premises. The policy had covered the premises during the ownership of the London Pub by plaintiffs and was continued in force after the sale of the premises from plaintiffs to defendant. Ho notice had ever been sent to the insurer stating that plaintiffs held a second mortgage interest in the premises.

Plaintiffs were not notified of the cancellation of the insurance policy for some time after that event when notification came through the first mortgagee.

Judge Wick refused to grant plaintiffs the right to continue with the “extreme remedy of foreclosure.” He noted that all payments of interest, principal and taxes had been made promptly to the first and second mortgagees and that the only reason foreclosure was sought here was the “failure to supply the insurance.” In rendering his decision, Judge Wick noted that the notice of cancellation had been sent by the insurer only to defendant corporation but that no individual could testify at the trial as to having received that notice. He also noted that both sides became aware of the nonexistence of insurance at approximately the same time and that both sides immediately attempted to place the insurance. He found that it was not until a year and one-half later that even plaintiffs were able to place the insurance. He also found that since plaintiff Matthew Kaminski was the one who had made the sale and set up the method of financing used, plaintiffs had to absorb some of the responsibility for some of the events that ensued. He therefore denied foreclosure.

The record disclosed that the Kaminskis did in fact obtain a policy of insurance after a number of abortive efforts. The policy obtained required a total annual premium of $4,779.64. After paying the premium, plaintiffs demanded reimbursement within ten days from defendant. The amount was not paid but prior to institution of these proceedings defendant was successful in obtaining a policy on its own and informed plaintiffs of this fact. The record also discloses that defendant also offered to pay the premium advanced by plaintiffs prior to the institution of the action. Plaintiffs insisted, however, in prosecuting the foreclosure.

Plaintiffs on this appeal maintain that a literal reading of the mortgage instrument gives them the right, which the court below could not deny them, to foreclose because o£ the failure of defendant to keep the mortgaged premises insured. We disagree. Generally, a provision in a mortgage granting the mortgagee an option to accelerate the maturity of the mortgage date upon the default in payment of principal, interest, taxes or insurance is a proper contractual stipulation and a mortgagee has the right to insist upon strict observance of such a stipulation, unless the default can be attributed to his conduct. Eisen v. Kostakos, 116 N. J. Super. 358, 366 (App. Div. 1971); Weiner v. Cullens, 97 N. J. Eq. 523, 526 (E. & A. 1925).

Under our cases, default in the payment of taxes or municipal liens may be neutralized if the taxes or liens are paid before the complaint in foreclosure is filed. Williams v. Evenstein, 2 N. J. 60, 63 (1949); Eisen v. Kostakos, above; Haase v. Moser, 120 N. J. Eq. 437 (Ch. 1936), aff’d 121 N. J. Eq. 344 (E. & A. 1937). Default in the payment of interest or principal cannot be so neutralized, however. Haase v. Moser, above, 121 N. J. Eq., at 345. Our research has not disclosed any case in this State which involves the attempt to correct a default under an insurance clause prior to the institution of foreclosure proceedings.

It seems to us, however, that a default in the payment of insurance premiums, or the failure to maintain a policy of insurance on mortgaged premises, is more analogous to a failure to pay taxes or municipal liens when due than to a failure to pay interest or principal when due. Cf. Olshan v. Chrystal, 101 N. J. Eq. 799 (E. & A. 1927). The failure to pay taxes or to maintain insurance does not impair the security of the mortgagee if those defaults are corrected promptly, i. e., before the institution of foreclosure proceedings. On the other hand, a default in the payment of interest or principal is ipso facto an impairment of security and a violation of the principal condition of the mortgage conveyance.

It is apparent that the mortgage security was imperiled through the lack of insurance during the period of time involved. However, no actual impairment of the security ever occurred. In addition, we are satisfied that the record supports the trial judge’s implicit conclusion that the failure to maintain the insurance came about through a series of events which were unknown to both plaintiffs and the Morsellis who are principals of defendant corporation. We note, as the trial judge did, that the not inconsiderable payments on the first and second mortgages were made throughout the period without default. We therefore conclude that the Chancery Division judge properly exercised his equitable jurisdiction in refusing the harsh remedy of foreclosure. As was noted by then Chief Judge Cardozo, in his dissent in Graf v. Hope Bldg. Corp., 254 N. Y. 1, 171 N. E. 884, 70 A. L. R. 984, 989 (1930):

There is no undeviating principle that equity shall enforce the covenants of a mortgage, unmoved by an appeal ad misericordiam, however urgent or affecting. The development of the jurisdiction of the chancery is lined with historic monuments that point another course.

The trial judge awarded plaintiffs the sum of $622 plus interest of 6% for a period of six months thereon as damages to plaintiff. That sum represented the earned premium on the policy obtained by plaintiffs which was later cancelled. We find, however, that plaintiffs should have been allowed interest at the rate of 6% for six months on the entire premium paid by them on said policy, plus the amount of $622 which was awarded. The trial judge was correct in refusing to allow an attorney’s fee. B. 4:42-9.

The judgment of the Chancery Division is modified, and as modified, affirmed.

Kogovsky, J. A. D.,

(dissenting).

Neither a court of law nor a court of equity may rewrite the contract entered into between a mortgagor and mortgagee. It is therefore essential to recognize exactly what had been agreed to in the mortgage executed by defendant to plaintiffs with respect to fire insurance on the mortgaged property and the payment of premiums for such insurance.

Paragraph. 4 of the mortgage provides that the mortgagee shall maintain insurance in force and- pay the premium therefor and that

* * if Mortgagor shall at any time default in furnishing any policy of insurance agreed to be furnished hereunder, * * * Mortgagee may procure policies of insurance insuring its interest * * * and charge all costs and expenses thereof to Mortgagor, adding the amount thereof to the amount due on this mortgage. [Emphasis added]

Further, paragraph 6 of the mortgage provides:

That upon any default in the making of any payments specified in paragraphs herein marked 1, 2, 4 and 11, Mortgagee, at Mortgagor’s option, may pay the same, or any of them or any part thereof, and thereupon this mortgage shall he security for any such payments with interest thereon and that the Mortgagor, will, upon demand, repay to Mortgagee such sum or sums, with interest at sia> per cent per annum from the date of payment thereof hy Mortgagee to the date of repayment thereof. [Emphasis added]

Finally, paragraph 7 authorizes the Mortgagee “to elect that this mortgage shall be and become due and payable immediately,” if the Mortgagor should fail to correct, within ten days after notice thereof, any default, whether in payment of interest or installment of principal or in the performance of any other obligation imposed on the mortgagor.

The controlling issue in this case is not, as the majority opinion suggests, whether a mortgagor’s default in maintaining fire insurance may be neutralized if the insurance is obtained before- the complaint in foreclosure is filed. That issue would be significant only if plaintiffs-mortgagees had not procured and paid for the required insurance and if the asserted right to foreclose were based solely on the failure to maintain the required insurance.

Here, however, the mortgagees had exercised the right reserved to them by the mortgage to procure insurance because the mortgagor had not procured and maintained such insurance. Plaintiffs had, on or about June 15, 1971, procured insurance and paid the $4709 premium therefor. By the terms of the mortgage, the payment of $4709 thus made was added to and became a part of the principal secured by the mortgage, with the mortgagor obligated to pay that part of the principal sum of the mortgage upon demand. Cf. Eisen v. Kostakos, 116 N. J. Super. 358, 366 (App. Div. 1971).

Plaintiffs served defendant with a demand for payment of the $4709 shortly after June 15, 1971, but payment was not made, even though sometime after the expiration of the ten days from the time of the demand, there were some settlement negotiations.

Plaintiffs filed their complaint for foreclosure on September 2, 1971, the complaint alleging, among other things, that plaintiffs had demanded payment of the amount of the premium which they had paid and that:

To date the defendant, London Pub, Inc. has not reimbursed the plaintiffs the premiums nor the accrued interest thereon. Plaintiffs have elected that the whole principal sum with all unpaid interest shall now be due.

Even if defendant had sought to neutralize its failure, for more than ten days, to pay the $4709 principal due by tendering payment of that sum before the foreclosure complaint was filed, the default would not have been neutralized. It is settled, as the majority opinion states, citing the pertinent cases including Eisen v. Kostakos, supra, that while

Under our cases, default in the payment of taxes or municipal liens may be neutralized if the taxes or liens are paid before the complaint in foreclosure is filed, * * * Default in the payment of interest or principal cannot be so neutralized.

The controlling default here involved was the default in payment of principal, not the default in maintenance of insurance. Cf. Eisen v. Kostakos, supra, in which the distinction noted was applied in a ease where there had been a default in payment of taxes and the mortgagee had paid the taxes. The court observed in upholding the mortgagee’s right to foreclose,

A mortgagee who pays taxes which the mortgagor is under a duty to pay is entitled to be reimbursed for the amount paid and may add it to the mortgage debt. [Citing cases]

Further, it appears from the record that there was not even a tender of the $4709 before the foreclosure action was instituted. All' that appears in the record is a statement of defendant’s attorney that in July 1971, during the course of the unsuccessful settlement negotiations, defendant had offered to pay $3779.

Plaintiffs did eventually in December 1971 and January 1972 receive, from the insurance company which had written the policy they had procured, refunds of premium totalling $4087. (Plaintiffs’ policies were cancelled when they learned that defendant had procured an insurance policy effective August 4, 1971. Plaintiffs’ insurer acquiesced in a cancellation as of August 4, 1971 even though the request for cancellation was submitted at a much later date.)

The difference between $4709 and $4087, $622, was still unpaid at the time of trial.

On the record here, plaintiffs were entitled to accelerate the maturity of the mortgage debt by reason of defendant’s failure to pay the principal installment of $4709 due. In my opinion the court may not deny them their right to foreclose absent a showing, and there is no such showing here, that the default was the result of some unconscionable or inequitable conduct of plaintiffs-mortgagees or that plaintiffs had effectively waived the default.

• I would reverse and remand for entry of the judgment of foreclosure which plaintiffs seek.


author: Pee Curiam.

text:
    LEONARD R. CORSO, PLAINTIFF-APPELLANT, v. LOCAL UNION NO. 153 OF THE INTERNATIONAL UNION, UNITED AUTOMOBILE, AEROSPACE & AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, AFL-CIO, AN UNINCORPORATED ASSOCIATION, AND THE BENDIX CORPORATION, A CORPORATION AUTHORIZED TO DO BUSINESS IN THE STATE OF NEW JERSEY, DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued February 20, 1973
    Decided March 13, 1973.

      Before Judges Loba, Allcorn and Kolb.

      Mr. Ronald J. Nelson argued the cause for the appellant (Messrs. Graner and Brennan, attorneys).

      Mr. Martin Pashoff argued the cause for the respondent Bendix Corporation.

      Messrs. Vaccaro and Osborne filed a statement in lieu of brief on behalf of the respondent Local Union FTo. 153.
   Pee Curiam.

It no longer is open to question that, under section 301 of the Labor Management Relations Act, 29 27. 8. G. A. § 185, a member of a labor union may maintain an action in the state courts against both the union and the employer, where he has been wrongfully discharged by his employer in violation of an existing collective bargaining agreement, and has been unable to obtain redress under the grievance procedures stipulated in the collective bargaining agreeemnt because the union, as his bargaining agent, breached its statutory duty of fair representation. Vaca v. Sipes, 386 U. S. 171, 87 S. Ct. 903, 17 L. Ed. 2d 842 (1967); Humphrey v. Moore, 375 U. S. 335, 84 S. Ct. 363, 11 L. Ed. 2d 370 (1964), reh. den. 376 U. S. 935, 84 S. Ct. 697, 11 L. Ed. 2d 655 (1964). See also, Motor Coach Employees v. Lockridge, 403 U. S. 274, 299, 91 S. Ct. 1909, 29 L. Ed. 2d 473 (1971), reh. den. 404 U. S. 874, 92 S. Ct. 24, 30 L. Ed. 2d 120 (1971). Thus, the trial court erred in dismissing the complant as against defendant Bendix Corporation, and in restricting plaintiff to an action in common law fraud against defendant union.

Nor, contrary to the contention of defendant Bendix Corporation, is the decision of the umpire in the arbitration proceedings binding upon plaintiff if, in its prosecution of the grievance proceedings, defendant union did in fact breach its duty of fair representation. The provisions of our arbitration statute are in accord. N. J. 8. A. 2A:24-8(a).

Lastly, we are not persuaded that, in the present posture of the case, the orders from which this appeal was taken do not constitute a final judgment. Be this as it may, we conceive the issues to be of sufficient significance as to require disposition on the merits, as we have undertaken to do. To avoid any procedural question, leave to appeal hereby is granted to the plaintiff on the court’s own motion. B. 2:2-4.

Accordingly, the order of November 5, 1971 dismissing the complaint as to defendant Bendix Corporation, and the order of January 14, 1972 limiting plaintiff to proceed against defendant Local Union No. 153 “only on the issue of common law fraud,” are reversed; and the cause is remanded to the Law Division for further proceedings not inconsistent with this opinion. See Vaca v. Sipes, supra, 386 U. S. at 187-188, 87 S. Ct. 903.


author: Per Curiam.

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. WILLIAM HIBBS, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued December 14, 1971—Remanded for further hearing and findings by opinion filed January 14, 1972—Trial court’s opinion on remand filed September 28, 1972—Supplemental memorandum filed November 11, 1972
    Decided March 5, 1973.

      Before Judges Lewis, Kolovsky and Halpern.

      Mr. Charles P. Alien argued the cause for appellant (Messrs. Dietrich, Mancino and Allen, attorneys).

      Mr. Gerald A. Hughes, Assistant Prosecutor, argued -the cause for respondent (Mr. Bruce M. Schragger, Mercer County Prosecutor, attorney).
   Per Curiam.

By our prior opinion, 123 N. J. Super. 108, on this appeal by defendant from his conviction in the County Court for making obscene telephone calls, N. J. 8. A. 2A Li0-29 (3), we remanded the matter to the County Court for submission of further proofs by the State and defendant on the issue of the reliability of the telephone tracing equipment which, according to the State’s proofs, indicated that the calls emanated from a phone in defendant’s home. Our opinion concluded:

* * * If the court [after the hearing pursuant to the remand] determines that the tracing equipment is not sufficiently accurate to produce results admissible as evidence, then a judgment of acquittal should be entered by it. If it determines that such equipment is admissible as evidence then the former verdict of guilt and the sentence imposed shall remain as entered.
* * * Jurisdiction is retained if the guilty verdict is confirmed.

The hearings ordered were held. The State offered the testimony of four employees of the New Jersey Bell Telephone Company as well as various exhibits relating to the tracing equipment. Defendant called two witnesses. In addition, the trial judge, in the presence of the parties’ attorneys, made an on-site inspection at two offices of the telephone company where the tracing equipment was situated and witnessed tests thereof.

Thereafter the trial judge filed an opinion, 123 N. J. Super. 152, embodying a comprehensive and detailed summary of the evidence he had heard and considered. The findings made by the trial judge concluded:

The court therefore finds that the tracing equipment used by the N. J. Bell Telephone Company, more accurately described as line verification match, as used in the annoyance call program of the company, is reliable and accurate and that the probability of error in such verification is, for the court’s purposes, nonexistent.

Although defendant argues to the contrary, we are satisfied that the trial court’s findings and conclusions are fully supported by the record. It was therefore proper to permit the State, at the original trial of this cause, to introduce testimony to show that tracing equipment had been attached to the victims’ telephone lines which indicated that the calls emanated from a telephone in defendant’s home.

Defendant also contends that “with or without consideration of the alleged scientific evidence,” the proofs would not support a finding that defendant was guilty beyond a reasonable doubt. We disagree.

The scientific evidence pinpointed the origin of the obscene calls. Other evidence indicated that defendant was the only person who could have been on the premises from which the calls were made when they were made. Evaluation of that evidence and of the crediblity of defendant’s testimony that he was at work at the time the calls were made was for the trial judge as the finder of the facts. There is no warrant for our disturbing those findings since they are fully supported by the record. State v. Johnson, 42 N. J. 146, 161-162 (1964).

Defendant’s final contention is that the sentence imposed, a four-month term in the Mercer County Workhouse, although concededly within the statutory limit, was “manifestly excessive.” We find no abuse of the discretion in the trial judge’s determination that the sentence he imposed was appropriate.

The judgment of conviction and sentence are affirmed.


author: Boas, J. C. C.,

text:
    LEONARDA DI MARTINO AND GIOVANNI DI MARTINO, PLAINTIFFS, v. EVELYN VENTRELLA AND ERNEST VENTRELLA, AND VITTORIO DI MARTINO, DEFENDANTS.
    Superior Court of New Jersey Law Division
    Argued February 9, 1973
    Decided February 15, 1973.

      Mr. David A. Wales argued the cause for plaintiffs (Messrs. Isadore & David A. Wales, attorneys).

      Mr. Victor K. Brown argued the cause for defendants Evelyn Ventrella and Ernest Ventrella {Messrs. Gorrín, Gonnors £ Ironson, attorneys).

      Mr. Joseph B. Baziano argued the cause for defendant Vittorio Di Martino {Messrs. De Toe, De Toe £ Guiney, attorneys).
   Boas, J. C. C.,

Temporarily Assigned. This is an application under B. 4:50-1 (f) to vacate this court’s Order of September 29, 1971, which granted summary judgment dismissing all claims and cross-claims against Vittorio Di Martino on the ground of his immunity to a suit by his parents. Plaintiffs seek to have Vittorio Di Martino reinstated as a party defendant.

A recital of the historical factual situation in this case would appear to be indicated.

On May 15, 1970, Vittorio Di Martino was driving a ear owned by his father, Giovanni Di Martino, in which plaintiff Loonarda Di Martino, his mother, was a passenger. It collided with an automobile which was being driven by the defendant Evelyn Ventrella. On August 13, 1970, Vittorio’s parents commenced a negligence action against Ventrella to recover for his mother’s personal injuries and for his father’s per quod and property damages. Ventrella’s answer denied negligence, counterclaimed against Giovanni for contribution, and asserted a third-party claim against Vittorio for contribution under the Joint Tortfeasors Contribution Act (N. J. 8. A. 2A:53A). On May 17, 1971, leave of court was granted to permit the plaintiffs to amend their complaint to add Vittorio Di Martino as a direct party defendant.

On September 29, 1971, this court granted defendant Vittorio Di Martino’s motion to dismiss all claims against him by reason of the doctrine of parental immunity. The action taken was based upon the decision in Schwartz v. U. S. Rubber Corp., 112 N. J. Super. 595 (Law Div. 1971), affirmed 118 N. J. Super. 128 (App. Div. 1972), cert. den. 60 N. J. 470 (1972). That case held that the abrogation of parent-child immunity, as declared in France v. A. P. A. Transport Corp., 56 N. J. 500 (1970), applied only to accidents occurring after July 10, 1970, the effective date established by the Supreme Court in Darrow v. Hanover Township, 58 N. J. 410, 420 (1971) for the abolition of inter-spousal immunity, as decided in Immer v. Risko, 56 N. J. 482 (1970). Since this accident occurred on May 15, 1970, the plaintiffs’ claims against their son were held to be precluded by the July 10, 1970 cut-off date.

On the present motion, plaintiffs argue that the cut-off date does not conclusively preclude a parent-child claim because where there is no justified reliance upon immunity and where the accident has been fully and timely investigated, then there is no reason for any immunity. Plaintiffs claim that since the father Giovanni was the principal insured and since his insurance carrier investigated the accident and settled an independent claim with the Ventrellas, there was no reliance nor would any party be prejudiced. Plaintiffs rely wholly on the case of Gotsch v. Gotsch, 121 N. J. Super. 479 (Cumberland Cty. Ct. 1971), affirmed 121 N. J. Super. 454 (App. Div. 1972). That case held that an interspousal claim resulting from an accident before the cut-off date can be maintained where the accident had been fully investigated and there was no reliance on the immunity doctrine.

In opposition, Vittorio Di Martino argues that the Gotsch ease is inapposite because that case involved an antenuptial accident, in which event an insurer would have good cause-to promptly and assiduously investigate claims involving separate, unrelated individuals. In the parent-child situation, there is no comparable urgency.

The disposition of this motion depends upon the resolution of two subsidiary issues: (1) whether the abrogation of parental immunity encompassed a suit by an injured parent against an allegedly negligent child; and (2) whether the established cut-off date completely precludes such a suit. The answer to the first inquiry is in the negative and to the second inquiry, in the affirmative.

I.

The abolition of parent-child immunity is not as extensive as the abolition of interspousal immunity. In Immer v. Risko, supra, the Supreme Court limited the scope of its-decision to interspousal “claims arising out of motor vehicle accidents” (56 N. J. at p. 495). In contrast, the holding in. France v. A. P. A. Transport Corp., supra, was specifically much more limited in scope:

“Our decision today goes no further than allowing suits betweenunmnancipated children and their parents for injuries suffered as a result of the negligent operation of a motor vehicle. See dissenting opinion of Justice Jacobs in Hastings v. Hastings, supra, 33 N. J. [247], at 261.” (56 N. J. at p. 507)

In Hastings v. Hastings, 33 N. J. 247 (1960), the Supreme Court was especially aware of the implications of the suggested abrogation of the parent-child immunity:

«* * * ghouls not be overlooked that the principle plaintiff asks us to establish would be applicable to injuries suffered in the home as well as in the family car and that an injured parent would also have to be permitted to sue his child for the latter’s negligence.” (at p. 251)

In this context, the dissenting opinion of Justice Jacobs, referred to in France, reveals a specific limitation on the scope of the abrogation of parent-child immunity:

“All this court is now called upon to hold is that a father who carelessly and negligently injures his passenger child while driving his fully insured automobile is not immune from a legal action on the child’s behalf.” (33 N. J. at p. 261)

By interpolating Justice Jacobs’ comment with the limiting language in France, it becomes apparent that the parent-child immunity is abolished only as to claims by an injured unemancipated child against his tortfeasor parent for injuries suffered in a motor vehicle accident. This present case is not within the holding of France, since the plaintiff parents are attempting to sue their unemancipated son.

It may very well be that the Supreme Court will expand the scope of the parent-child immunity abolition beyond its present limitation. However, this court is bound by the decision of the Supreme Court:

“* * * as a trial court I am duty bound to follow the law as enunciated by courts of superior jurisdiction regardless of my views as to their correctness; and it is not within the area of discretion of a trial court to anticipate what an appellate court may do in the future in the light of an existing direct holding.” Fox v. Bd. of Ed. of W. Milford Tp., 93 N. J. Super. 544, 557 (Law Div. 1967).

Consequently, applying the law as enunciated by the Supreme Court, a suit by an injured parent against a tortfeasor child is barred by the doctrine of parent-child immunity.

II.

Even assuming that the abolition of parent-child immunity is so extensive as to include the instant case, the July 10, 1970 effective date of immunity abolition would preclude this claim, if that cut-off date must be applied conclusively.

Except for the Goisch case, the courts of this State have held that the cut-off date established in Barrow is conclusive on the issue of an interspousal or parent-child claim. In Schwartz v. U. S. Rubber Corp., 118 N. J. Super. 128 (App. Div. 1972), the court held that the cut-off date established for interspousal claims applies equally to parent-child claims:

“We conclude that Darrow v. Hanover Township . . . controls as is indicated by the June 8, 1971 order of the Supreme Court denying certification of the then pending appeal in this case.” [60 N. J. 470 (1972)] (at p. 129)

Likewise, in Berry v. Berry, 120 N. J. Super. 452 (App. Div. 1972), which involved an interspousal claim, the court applied the cut-off date conclusively, even though it found no reliance upon the interspousal immunity doctrine:

“Tnder these circumstances we conceive no basis for concluding that the insurance company relied upon the doctrine of interspousal immunity. The sequence of events dictate otherwise. However, while Harrow is factually distinguishable we, nevertheless, are obliged to apply the rule of law therein enunciated.” (at p. 456)

In contrast, in Gotsch v. Gotsch, 121 N. J. Super. 479 (Cumberland Cty. Ct. 1971), which involved an interspousal claim, the trial court held that a claim arising from an accident which occurred before the cut-off date can be maintained if there was no justified reliance upon immunity by tlie insurance carrier:

“Since justifiable reliance is the basic rationale of Harrow and no prejudicial reliance is shown by defendant’s carrier, the reason for immunity are absent and the eause of action should be recognized and enforced. Long v. Landy, supra [35 N. J. 44], Moreover, the additional purpose of declaring prospectivity only to the Immer rule, that of fostering stability and avoiding the necessity of opening claims which might have gone stale because of a failure to promptly investigate, is not present in the case before the court.” (at p. 486)

On appeal, the Appellate Division expressly affirmed the trial court’s rationale. 121 N. J. Super. 454, 456 (App. Div. (1972).

As indicated above, the underlying foundation of the trial court’s rationale was its use of the anatytic approach of Long v. Landy, 35 N. J. 44 (1961). which established that “when the reasons for immunity are absent, a cause of action should be recognized and enforced by our courts.” Gotsch v. Gotsch, supra, 121 N. J. at 482. Immer v. Risko, supra, 56 N. J. at 487. However, the trial court greatly expanded the use of that analytic approach. In both Long and Immer, the analytic approach related to the common law grounds of immunity, i. e., marital unity, family harmony, collusion, and fraudulent claims. Contrastingly, the Gotsch court related the analytic approach not to the common law grounds of immunity, but to the reasoning justifying prospective application of immunity abolition, i. e., justified reliance in investigation, rate-making, and coverage. Accordingly, in our view the Long approach was contra-indicated. Justified reliance solely concerns the issue of prospective-retrospective application of a change of a common law doctrine but does not concern the actual change or continuance of the substantive doctrine itself. Whether or not an insurance carrier relied on the immunity is inconsequential on the issue of whether or not there should be immunity as a matter of substantive law.

Moreover, even if justified reliance was a factor affecting immunity, nevertheless the decision of Barrow makes the cut-off date absolute. The Supreme Court was quite specific in establishing the cut-off date:

“* * * we hold that Immer is prospective only . . . The Immer rule will be available only to persons suffering injuries in automobile accidents occurring after July 10, 1970, the date Immer was decided.” (58 N. J. at p. 420)

This explicit holding and the general tenor of the Barrow decision indicate a deliberate and conscious mandate to limit the availability of interspousal and parent-child claims, foreclosing consideration of claims or reliance in specific cases that antedate the respective decisions abrogating immunity.

Ill

For the foregoing reasons, plaintiffs’ motion to reinstate Vittorio Di Martino as a party defendant is denied.