author: Collins, J. G. 0.,

text:
    TROY HILLS VILLAGE, INC., A CORPORATION OF THE STATE OF NEW JERSEY, PLAINTIFF, v. BRUCE FISCHLER AND BETH FISCHLER, HIS WIFE, AND GEORGE F. KUGLER, JR., ATTORNEY GENERAL OF NEW JERSEY, DEFENDANTS.
    Superior Court of New Jersey Law Division
    Decided July 12, 1971.

      Mr. Hillard Ghapnick for plaintiff (Messrs. Krugman, Ghapnick, Grimshaw <& Dubow, attorneys).

      Mr. Arthur W. Vespignani for defendants (Messrs. Arthur W. Vespignani, attorney).
   Collins, J. G. 0.,

Temporarily Assigned. This is an action for declaratory relief to determine the rights of the parties under their lease agreement, and also under Chapter 210 of the Laws of 1970 entitled “Landlord and Tenant— Reprisals Against Tenant.” N. J. 8. A. 2A:42-10.10 et seq.

Plaintiff owns a 752-unit, multi-family garden apartment in the Township of Parsippany-Troy Hills, Morris County, New Jersey

On June 20, 1968, plaintiff entered into a written lease agreement with defendants Bruce and Beth Fischler, wherein plaintiff leased defendants apartment 307-A for a term of two years commencing July 1, 1968 until June 30, 1970. By memorandum dated March 6, 1970, executed between plaintiff and defendants, the aforesaid lease was extended until June 30, 1971.

Plaintiff admitted that defendant Beth Fischler,

1. Is president of the Troy Hills Village Tenants Association, Inc.

2. Has been active in making complaints to municipal authorities regarding the condition of the plaintiffs property.

3. She and her husband have been active in picketing plaintiff's rental office.

On February 22, 1971 plaintiff mailed a written notice to defendants stating that it intended to terminate their lease effective June 30, 1971.

On September 30, 1970 Chapter 210 of the Laws of 1970 became effective and was enacted into law. N. J. 8. A. 2A:42-10.10 et seq. Said statute is entitled “Landlord and Tenant — Reprisals Against Tenant,” and contains the following sections:

1. No landlord of premises or units to which this act is applicable shall serve a notice to quit upon any tenant or institute any action against a tenant to recover possession of premises, whether by summary dispossess proceedings civil action for the possession of land, or otherwise:
a. As a reprisal for the tenant’s efforts to secure or enforce any rights under the lase or contract, or under the laws of the State of New Jersey or its governmental subdivisions, or of the United States; or
b. As a reprisal for tenant’s good faith complaint to a governmental authority of the landlord’s alleged violation of any health or safety law, regulation, code or ordinance, or State law or regulation which has as its objective the regulation of premises used for dwelling purposes ; or
c. As a reprisal for the tenant’s being an organizer of, a member of, or involved in any activities of, any lawful organization; or
d. On account of the tenant’s failure or refusal to comply with the terms of the tenancy as altered by the landlord, if the landlord shall have altered substantially the terms of the tenancy as a reprisal for any actions of the tenant set forth in subsection a, b, and e of section 1 of this act. Substantial alteration shall include the refusal to renew a lease or to continue a tenancy of the tenant without cause.
Under subsection b of this section the tenant shall originally bring his good faith complaint to the attention of the landlord or his agent and give the landlord a reasonable time to correct the violation before complaining to a governmental authority.
A landlord shall be subject to a civil action by the tenant for damages and other appropriate relief, including injunctive and other equitable remedies, as may be determined by a court of competent jurisdiction in every case in which the landlord has violated the provisions of this section.
2. In any action brought by a landlord against a tenant to recover possession of premises or units to which this act is applicable, whether by summary dispossess proceedings, civil action for the possession of land, or otherwise, judgment shall be entered for the tenant if the tenant shall establish that the notice to quit, if any, or the action to recover possession was intended for any of the reasons set forth in subsections a, b, c, or d of section 1 of this act.
3. In any action or proceeding instituted by or against a tenant, the receipt by the tenant of a notice to quit or any substantial alteration of the terms of the tenancy without cause after:
a. The tenant attempts to secure or enforce any rights under the lease or contract, or under the laws of the State of New Jersey, or its governmental subdivisions, or of the United States; or
b. The tenant, having brought a good faith complaint to the attention of the landlord and having given him a reasonable time to correct the alleged violation, complains to a governmental authority with a report of the landlord’s alleged violation of any health or safety law, regulation, code or ordinance; or
c. The tenant organizes, becomes a member of, or becomes involved in any activities of, any lawful organization; or
d. Judgment under section 2 of this act is entered for the tenant in a previous action for recovery of premises between the parties; shall create a rebuttable presumption that such notice or alteration is a reprisal against the tenant for making such attempt, report, complaint, or for being an organizer of, a member of, or involved in any activities of, any lawful organization. No reprisal shall be presumed under this section based upon the failure of a landlord to renew a lease or tenancy when so requested by a tenant if such request is made sooner than 90 days before the expiration date of the lease or tenancy, or the renewal date set forth in the lease agreement, whichever later occurs.
4. This act shall apply to all rental premises or units used for dwelling purposes except owner-occupied premises with not more than two rental units. * * *.

The complaint seeks a declaratory judgment that the court construe the lease to declare that plaintiff is not obligated to either extend or renew the lease and further to declare Chapter 210 of the Laws of 1970 unconstitutional and ineffective and without force of law.

The Attorney General of the State of New Jersey was joined in this action as a party defendant; however, he has notified the court that he has accepted the complaint in accordance with B. 4:28-4, and at this point will not appear but is reserving his right to intervene at a later date if such a course becomes appropriate and necessary.

Plaintiff moves for summary judgment to declare the “Landlord and Tenant Eeprisal Law” unconstitutional.

Both parties agree that there is no genuine issue as to any material fact concerning the constitutionality of the statute in question. The sole issue at this juncture is one of law.

Plaintiff attacks the constitutionality of the Statute on four grounds. They are :

(a) The law divests a person of “vested rights” and denies due process in the substantive sense;

(b) The statute is void because it is vague and ambiguous ;

(c) The statute is an illegal interference with a lawful business; and

(d) The statute would create two types of tenants in violation of the equal protection clause.

At the outset it should be pointed out that there is a presumption of the constitutional sufficiency of a legislative enactment, and the burden of proof and persuasion is heavy on the party contesting the statute. David v. Vesta Co., 45 N. J. 301 (1965); Fried v. Kervick, 34 N. J. 68 (1961); Levitt and Sons, Inc. v. Div. Against Discrimination, etc., 31 N. J. 514 (1960); Jamouneau v. Harner, 16 N. J. 500 (1954).

The first point raised by plaintiff is that the statute divests a person of “vested rights” and is therefore void.

Plaintiff brings to the attention of this court the recent case of Engler v. Capital Management Corp., 112 N. J. Super. 445 (Ch. Div. 1970). In that case tenants brought suit for an injunction to restrain landlords from refusing to renew leases at the expiration of their respective terms, and the landlords counterclaimed for eviction. Since Chapter 210 of the Laws of 1970 became effective during the pendency of that litigation, the court did not pass on its constitutionality. However, the court in Engler held that under the doctrine of unclean hands equity barred the landlords from refusing to renew tenants’ leases solely because of the tenants’ activities with a tenants’ association. Plaintiff points out the dictum in that case which stated (at 447) that “a landlord’s right of possession upon the .expiration of a lease and the right of action, to dispossess a tenant holding over without a lease are vested rights which cannot be annulled by subsequent legislation.” However, in this case the statute became effective long before the complaint was filed. Thus, the effect of the act is prospective and applies to tenancies which terminate after the effective date of the act.

Our Supreme Court in Pennsylvania Greyhound Lines, Inc., v. Rosenthal, 14 N. J. 372 (1954), stated that the term “vested right” is not defined but, generally, the concept it expresses is that of a present fixed interest which in right reason and natural justice should be protected against arbitrary state action.

The word “vested,” when used as descriptive of recognized legal rights, does not exclude divestible rights or interests which can be divested by legislative action. It is used to denote the quality of a present right or interest, even though divestible. Jersey City v. Kelly, 134 N. J. L. 239 (E. & A. 1946).

In Brookchester v. Ligham, 17 N. J. 460 (1955), the Supreme Court held that a contract between a landlord and a tenant would be governed by the police power of the State, and that the police power is superior to the contractual rights of the landlords and tenants.

A traditional and recognized function of the Legislature is to inquire into facts dealing with the protection of the health, morals, safety and general welfare of the people, so that adequate remedial legislation may properly be prepared. The essence of the police power is that the welfare of the people is the supreme law. This principle has beeni deemed basic to all civil government. Jamouneau v. Harner, 16 N. J. 500 (1954). The State’s police power is admittedly a comprehensive one, and the concept of the general welfare has received broad definition in our State. Burton v. Sills, 53 N. J. 86 (1968) ; Pierro v. Baxendale, 20 N. J. 17 (1955). The police power is an attribute of sovereignty and' is inherent in every state. The power escapes exact definition, yet all rights and property are subject to it. Whatever is harmful to the public welfare may be restrained or prohibited. Magierowski v. Buckley, 39 N. J. Super. 534 (App. Div. 1956). Our Supreme Court in Marini v. Ireland,, 56 N. J. 130, 146 (1970), recognized a current housing shortage. As was said in Engler v. Capital Management Corp., supra:

Tile tenant, dissatisfied with housing conditions, no longer may be said to have a viable alternative to move to comparable housing nearby. Difficulties and delays confront him. One resort open to him is to organize or participate in a tenants association formed to present proposals and grievances. The Legislature has now sanctioned such associations by safeguarding their members against retaliatory evictions. [112 N. J. Super. at 448]

The Legislature may validly abolish a' common law right or remedy, prospectively, without furnishing an adequate substitute. Magierowski v. Buckley, supra at 557. As was stated in Munn v. Illinois, 94 U. S. 113, 134, 24 L. Ed. 77 (1876), cited with approval in Second Employers' Liability Cases, Mondou v. New York, N. H. & H. R. Co., 223 U. S. 1, 32 S. Ct. 169, 56 L. Ed. 327 (1911) :

A person has no property, no vested interest, in any rule of the common law. That is only one of the forms of municipal law, and is no more sacred than any other . . . Indeed, the great office of statutes is to remedy defects in the common law as they are developed, and to adapt it to the changes of time and circumstances. [223 U. S. at 50]

As was stated in Magierowski v. Buckley, supra:

A state has the constitutional and legislative power to change or modify the common law; the Constitution does not forbid the creation of new rights or the abolition of old ones recognized by the common law, if the purpose is to attain a permissible legislative object. 11 Am. Jur., Constitutional Law, § 196, p. 899. There can be no vested right in the continued existence of a statute or rule of the common law which precludes its change or repeal. 16 C. J. S., Constitutional Law, § 223, p. 646. [39 N. J. Super. at 558]

Private property rights are not absolute. They are always subject to the reasonable exercise of the police power. David v. Vesta Co., 45 N. J. 301 (1965). As Justice Proctor, stated in that case:

In the State’s exercise of its police power it has placed myriad restrictions upon the property owner’s right to use land as lie chooses. For example, the law of nuisance, easements by necessity, the division of the benefits of water, sanitary regulations, building codes, zoning ordinances and statutes, and planning regulations, have all been recognized as legitimate restrictions on the use of private property. See Powell “The Relationship Between Property Rights and Civil Rights,” 15 Hastings L. J. 135, 140-149 (1963). More pertinent to the issue before us, the rule against perpetuities, the rule against certain restraints on the alienation of land, the rule prohibiting a testator from devising his property subject to a condition which violates the public welfare, and rent ceiling laws are all examples of legitimate police power restrictions upon the right of a private property owner to dispose of his property as he chooses. Ibid. In short, the private property owner has the right to use and dispose of his property as he chooses only so long as his action is not contrary to the general welfare, [at 311]

In the very recent case of State v. Shack, 58 N. J. 297 (1971), Chief Justice Weintraub wrote:

A man’s right in his real property of course is not absolute. It was a maxim of the common law that one should so use his property as not to injure the rights of others. Broom, Legal Maxims (10th ed. Kersley 1939), p. 238 ; 39 Words and Phrases, “Sic Utere Tuo ut Alienum Non Laedas,” p. 335. Although hardly a precise solvent of actual controversies, the maxim does express the inevitable proposition that rights are relative and there must be an accommodation when they meet. :l" ! * This process involves not only the accommodation between the right of the owner and the interests of the general public in his use of his property, but involves also an accommodation between the right of the owner and the right of individuals who are parties with him in consensual transactions relating to the use of the jiroperty. Accordingly substantial alterations have been made as between a landlord and his tenant. See Reste Realty Corp. v. Cooper, 53 N. J. 444, 451-453 (1969) ; Marini v. Ireland, 56 N. J. 130, 141-143 (1970).

In Jamouneau v. Hamer, supra, the leading decision on the constitutionality of the since lapsed rent control statute, Justice Heher stated:

The basic right of private property perforce yields to an overriding public need. There is an ever-increasing demand for accommodation of the right of property and of contract to the inexorable needs and pressures of our complex economy and intricate social organism. The vital community interest is paramount. Utility rate contracts give way to this attribute of sovereign power; and the contractual arrangements between landlords and tenants as well [16 N. J. at 514]

As to the function of the courts in passing on the constitutionality of a statute, the Supreme Court in Reingold v. Harper, 6 N. J. 182 (1953), said:

Persons and property are subject to all kinds of restraints and burdens in order to secure tbe general comfort, health, and prosperity of the state; and, when the power is exerted by the lawmaking body, it is not a judicial function to determine which one of two modes was likely to be the most effective for the protection of the public interest in view. That is a legislative inquiry, to be resolved in the light of all the information at hand. Judicial interference in this regard would constitute an invasion of the legislative function. Judicial interposition may be had only where there is no real or substantial relation between the legislative act and a valid public interest under the police power or the measure is, beyond all question a palpable invasion of rights secured by the organic law. [at 194]

It was the intention of tbe court to take judicial notice that:

1. A housing shortage exists in the Township of Parsippany-Troy Hills and also in Morris County, and

2. There has been a sharp raise in rents for apartments.

Plaintiff’s attorney objected and a hearing was held at which plaintiff produced testimony concerning said bousing situation in said township, and from such testimony I find that from 1968 to 1971 taxes have increased by .3084%; that rentals of apartments in the various units located in said township have risen between 1965 and May 31, 1971 by 26%; operating expenses have risen by approximately 35%.

There are 6,948 apartments in said township. A census was taken by the township between January 16, 1971 and May 2, 1971 to ascertain the number of persons residing in apartments. The population of the whole township was 55,112 persons. Those residing in apartments totaled 14,461. The census disclosed the number of vacant apartments existing as of the above dates to be 28.

Taking into consideration all of the testimony produced, I find that there is a shortage of housing in Parsippany-Troy Hills and in Morris County, and that rentals for apartment units in these areas have risen sharply.

Plaintiff’s next attack on the statute is that it is vague and ambiguous. The fact that a particular statute may need some interpretation by the courts does not render it unconstitutional. The test is whether, measured by common understanding, it fairly and adequately conveys its meaning to all concerned. Laba v. Newark Board of Education, 23 N. J. 364 (1957) ; Handelsman v. Div. of N. J. Real Estate Comm’n, 101 N. J. Super. 244 (App. Div. 1968). It is sufficiently explicit if it informs those subject to action thereunder as to the conduct which will render them liable to its penalties. Abelson’s Inc. v. N. J. State Board, of Optometrists, 5 N. J. 412 (1950); Handelsman, supra.

This court finds from the reading of the statute that it is not vague or ambiguous and that it fairly and adequately conveys its meaning to all concerned.

The third attack on the statute by plaintiff is that it interferes with a lawful business and, under the circumstances such as those present in this case, probably it does. The State has general police power to impose business regulations provided there is a substantial relation between the regulation and the protection of the public health, safety, morals or general welfare, and that the means employed be reasonable and not arbitrary. Reingold v. Harper, supra. In light of the presumptions of validity this court has no hesitancy in rejecting plaintiff’s third point that Chapter 210 imposes an arbitrary restriction on a lawful business.

Finally, plaintiff argues that the statute would create two types of tenants, in violation of the equal protection clause of the United States Constitution. There is no reason why any tenant’s lease would be perpetually guaranteed under the statute in question, since it only raises a presumption. If the presumption is rebutted, the tenant will be evicted. This court finds that the statute does not create two types of tenants. The distinction, if any, is reasonable and not arbitrary. The assurance of like treatment to all persons is not violated by classification which is reasonable and not arbitrary. Where the end is one to which legislative power may properly be addressed, it is enough if it can be seen that in any degree, or under any reasonable conceivable circumstances, there is an actual relation between the means and the end. Jamouneau v. Harner, supra, 16 N. J. at 518:

The Legislature has the function and the responsibility of determining what is needed in the interest of the general welfare. The burden of proof of a deviation from its constitutional sphere has not been sustained. Therefore, this court finds that Chapter 210 of the Laws of 1970 is a reasonable exercise of the police' power and as such is constitutional.

This court is not, at this time, passing on the counterclaim raised by defendants, namely; that plaintiff be compelled and directed to renew defendants’ lease for a period of two years under the same conditions.

. Plaintiff’s motion for summary judgment is hereby denied and defendants’ motion dismissing the complaint is granted.

Defendant tenants shall continue to pay rent as heretofore without prejudice to the rights of any party.


source: Caselaw Access Project

author: Huot, J. C. D. C.

license: Public Domain

text:
    STATE OF NEW JERSEY, v. CATHLEEN MARIE JONES AND RICHARD JOHN BUIST, DEFENDANTS.
    District Court, Bergen County
    Decided February 14, 1973.

      Mr. Sherwin D. Lester, Bergen County Prosecutor, for the state.

      Mr. Edward Goldberg, attorney for defendants.
   Huot, J. C. D. C.

This is a motion to suppress evidence seized as a result of an inventory of an automobile conducted by a police officer on August 17, 1972. As a result of said inventory the officer discovered a paper containing green vegetation on the floor between the console and passenger bucket seat. Defendants were charged with possession of marijuana (less than 25 grams), contrary to N. J. S. A. 24: 21-20(a) (3). After the arrest defendants’ persons were searched and two plastic bags containing green vegetation were discovered in the purse of defendant Jones. A search of the trunk disclosed a pipe with marijuana residue.

The facts are undisputed: At approximately midnight on August 17, 1972 Patrolman Adcock observed an automobile being driven in a westerly direction on Route 46 in the Borough of Ilasbrouck Heights. His attention was attracted to the vehicle by its studded snow tires and an inspection sticker indicating that it had failed inspection. Patrolman Adcock signaled the driver of the vehicle to pull over to the side of the highway, and after inspecting the operator’s license and registration informed the driver and his passenger, defendants in this case, that he was impounding the automobile because he considered it unsafe and because of the studded snow tires. At that time Patrolman Adcock conducted an inventory of the vehicle as part of the policy of the Bergen County Police Department. In the course of the inventory he discovered marijuana between the console and the passenger bucket seat. Defendants were then arrested. They contend that the search and seizure in this case were illegal and violative of their constitutional rights. They contend that the officer had no right under New Jersey law, and the facts here present, to impound the car, and that with no right to impound there was no right to enter the vehicle for the purpose of an inventory. Defendants further contend that even if there were a right to impound and a concurrent right to inventory, that right was limited to inventory and did not encompass the right to search between the console and the seat.

The determination of whether a “search” has been made is prerequisite to the determination of whether an unlawful search and seizure has taken place. A search is a search and cannot be anything different simply because the police officer conducting the same chooses to characterize it as an “inventory.” It is well settled in New Jersey that the term “search” necessarily implies some exploratory investigation and is predicated upon the fact of physical entry into the automobile. State v. Griffin, 84 N. J. Super. 508 (App. Div. 1964); State v. Lowry, 95 N. J. Super. 307 (App. Div. 1967); In re Estate of Shivers, 105 N. J. Super. 238 (App. Div. 1969); State v. Bell, 55 N. J. 239 (1969). In the present case Patrolman Adcock’s physical entry into the automobile, coupled with his exploratory investigation of the same, is readily conclusive of the fact that a search had been made.

Since the search of the automobile was associated with the impounding of the vehicle, the validity of the search depends upon the legitimaejr of the impounding. Patrolman Adcock testified that he determined that the automobile should be impounded because the vehicle was fitted with studded snow tires in violation of N. J. S. A. 39 :3-81, was in poor general condition, and did not bear a current inspection certificate of approval.

If there was a right to impound the vehicle, then the right to enter the vehicle for the purpose of an inventory is a concurrent right which must exist for the protection of the property rights of the defendant to those chattels then in the vehicle, as well as for the protection of the officer and the persons who tow the vehicle and who take and keep custody of it. Thus, it is necessary to determine if the right to impound a vehicle for a violation of the Motor Vehicle Law exists.

An examination oí N. J. S. A. 39 :8-9 and other pertinent sections of the Motor Vehicle Act requires the conclusion that the impounding of the automobile driven by defendant Richard Buist was without statutory authority. N. J. S. A. 39 :3 — 81, which prohibits the operating of a motor vehicle in August with studded tires, expressly provides for a fine to be paid by any person violating the statute:

When used on a state highway, no motor vehicle tire shall be fitted with any blocks, hobs, studs or other projections and no wheel shall be locked so as not to revolve. A person violating this section shall be liable to a fine of not less than ten nor more than twenty dollars for each offense together with the costs of prosecution, to be recovered at an action at law in the name of the state, before a court of competent jurisdiction by the state highway department. The fine shall be paid into the state treasury to the credit of the funds available for the construction, maintenance and repair of roads.

The above-quoted statute provides as penalty for a violation thereof the imposition of a fine only, and then not in excess of $20. Fines arc imposed by a court, however, and we are here concerned with the authority of a police officer in the performance of his' duties. N. J. S. A. 39 :5-25 authorizes a police officer to arrest without warrant any person who violates any provision of Chapter 3 of Title 39 in the officer’s presence,- or, the officer may serve a summons upon such violator. No arrest was made for the motor vehicle violation; in fact, the testimony was clear that no arrest was made until after the discovery of the marijuana. But even if there had been an arrest, the statute permits detention only for such length of time necessary for the arresting officer to make a complaint and obtain an arrest warrant. This statute has, however, been held to be supplanted by R. 7:6-1 et-sea. (formerly R. R. 8:10-1 et seq.). See Winberry v. Salisbury, 5 N. J. 240 (1950); State v. Nimmo, 11 N. J. Super. 606 (Cty. Ct. 1951); State v. Ahrens, 25 N. J. Super. 201. (App. Div. 1953).

R. 7:6-1 provides that for motor vehicle violations “the complaint and summons shall be a uniform traffic ticket in the form prescribed * * *” (Emphasis supplied). The Administrative Director of the Courts has prescribed such complaint - and summons (Municipal Court Bulletin III, May 1965). Thus, although in this case there was no arrest made for the violation of N. J. S. A. 39 :3-81 or N. J. S. A. 39 :8-9, there was no authority, to make such arrest. The mandate of R. 7:6-1 is the issuance of a uniform summons and complaint.

There was no power to arrest for a violation of N. J. S. A. 39:3-81. Likewise, there is no power of arrest for a violation of N. J. S. A. 39 :8-9. There is no dispute that the vehicle had failed to pass inspection. The owner of the vehicle, Audrey Buist, mother of defendant Richard Buist, was required to make repairs to the vehicle. N. J. S. A. 39 :8-4. The Director of Motor Vehicles has the power to revoke the registration of the vehicle for her failure to make such repairs. N. J. S. A. 39 :8-7. The courts may assess a fine of not more than $100 against Audrey Buist or imprison her for 30 days. N. J. S. A. 39 :8-9. But nowhere in Title 39 is there a provision which authorizes a complaint or penalty against the operator of an inspected or unapproved vehicle who is not the owner thereof. Indeed, the only reference to operator in Chapter 8 is contained in N. J. S. A. 39:8-6 which requires an operator to display an official certificate of approval. There is no penalty provided against an operator who fails to display such certificate.

Thus, defendant Richard Buist could not be arrested for operating a vehicle in violation of N. J. S. A. 39 :3-81; only a summons and complaint could be issued to him. He could not be arrested or served with a summons and complaint for violation of N. J. S. A. 39 :8-9. Since this is true of defendant Richard Buist, a fortiori it is true of defendant Cathleen Jones.

With no right to arrest and, in fact, without an arrest, the search cannot be sustained as incident to a valid arrest.

The Legislature has provided for the seizure of motor vehicles in certain circumstances. N. J. S. A. 24:21 — 35 authorizes a police officer to seize a vehicle which is used in the transportation of dangerous substances in violation of the narcotics laws, and N. J. S. A. 33 :1-66 authorizes a police officer to seize a motor vehicle where he has reasonable cause to believe that it contains illicit alcoholic beverages.

An examination of Title 39 reveals that there are four sections which do authorize the seizure of motor vehicles operated over the highways of this State.

None of these sections is applicable to the facts of this case, and the State does not urge their application. However, we will briefly consider them. N. J. S. A. 39 :5-47 provides:

The commissioner may authorize the seizure oí a motor vehicle operated over the highways of this state when he has reason to believe that the motor vehicle has been stolen or is otherwise being operated under suspicious circumstances and may retain it in the name of the department until such time as the identity of ownership is established, whereupon he shall order the release of the motor vehicle to its owner.

It is clear that this statute does not apply to the facts of this case. At no time did Patrolman Adcock testify that he had suspicions concerning the ownership of the automobile driven by defendant Buist, or that defendant was operating the automobile “under suspicious circumstances.” He was aware from the registration certificate produced that the ownership of the vehicle was in the name of defendant’s mother, Mrs. Audrey Buist. The seizure of the vehicle, Patrolman Adcock testified, was related to the physical condition of the vehicle.

N. J. S. A. 39 :3-4 authorizes a motor vehicle inspector or police officer to remove any unregistered vehicle from the public highway. N. J. S. A. 39:10-6 allows for the seizure of a motor vehicle for failure to produce a certificate of ownership or registration. N. J. S. A. 39 :10-21 allows the Commissioner to seize a motor vehicle if the dealer who has possession of same is unable to produce a certificate of origin or a certificate of ownership.

N. J. S. A. 39:8-7 provides for the revocation of the registration of a motor vehicle registered in this State and operated on the highways of this State which (a) does not display a current certificate of approval and (b) is shown by the inspection to be incapable of being placed in a proper condition to make its use safe on the highway. N. J. S. A. 39 :8-9 provides for the imposition of a fixed fine on any person who is guilty of violating the provisions of Chapter 8 of the Motor Vehicle Act. However, nowhere in Chapter 8 is authority granted to imponnd a motor vehicle which is violating the law.

The impounding of the automobile has thus been seen not to have been incident to an arrest and not to have been authorized by any statutory provisions of the Motor Vehicle Act, N. J. S. A. 39 :1-1 et seq.

Until now the court has used the word chosen by the officer to describe his action in removing the vehicle from the road. The word “impound,” however, tends to distract attention from the issue which is really raised in this ease. The vehicle was in fact seized, taken into custody by the officer, and it is that act which must be judged, regardless of the name by which one calls it.

In law the word “impound” has an historical meaning which carries a connotation more restricted than it has acquired in modern usage.

Black’s Law Dictionary (4th ed. 1968) defines it:

“impound: to shut up stray animals or distrained goods in a pound; * * * to take into the custody of the law or of a court. Thus, a court will sometimes impound a suspicious document produced at a trial.

The origin of its use at common law was in landlord-tenant eases, wherein a tenant was in default of rent due. In such cases a landlord could distrain the chattels and livestock of the tenant for the unpaid rent. A distress and an impounding were the two separate and distinct steps used to enforce payment. Eor a distress the landlord could post a notice at the premises declaring that the tenant’s chattels or livestock could not be removed from the premises until the rent was paid. Once this was done, the landlord could assure the continued safety of those chattels or livestock by taking them to a public pound. The act of depositing them at the public pound constituted the impounding. Elkman v. Rovner, 133 N. J. Eq. 93 (Ch. 1943); Lipinski v. Frank, 12 N. J. Misc. 174, 170 A. 608 (Sup. Ct. 1934); VanHorne v. Brown, 85 N. J. L. 544 (Sup. Ct. 1914); Newell v. Clark, 46 N. J. L. 363 (Sup. Ct. 1884).

It is apparent that we are not here concerned with an impounding as is understood in the law. Bather, we are concerned with an impounding as the word is commonly understood today, i. e. a taking into custody. In this sense it is a seizure, and as such must be judged in the light of the Fourth Amendment of the United States Constitution and Art. I, par. 7 of the New Jersey Constitution (1947). The wording of both is identical:

The right of the people to be sceure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated * * *

As was stated by Chief Judge Euld in his dissenting opinion in People v. Sullivan, 29 N. Y. 2d 69, 323 N. Y. S. 2d 945, 272 N. E. 2d 464 (Ct. App. 1971)

A search is no less a search, a seizure no less a seizure, because termed an “inventory”. We certainly are not concluded by the label assigned to a police procedure, nor should we, the Supreme Court rémnids us, attribute “too much significance to an overly technical definition of ‘search’ ”. (Terry v. Ohio, 392 U. S. 1, 17-18, n. 15, 88 S. Ct. 1868, 20 L. Ed. 2d 889). [29 N. Y. 2d at 77, 323 N. Y. S. 2d at 952, 272 N. E. 2d at 469]

It is to be noted that we are not here discussing the search of the vehicle but, rather, the right to seize it. As stated above, if there is a right to seize, then there must be a concommitmant right to search. The following discussion perforce refers to cases wherein the search preceded the seizure, but the principle is the same. This court could not find, nor was its attention directed by counsel, to any case wherein the issue here raised has been discussed.

It is well settled that the Eourth Amendment bars only those searches which are unreasonable. State v. Boykins, 50 N. J. 73, 81 (1967); State v. McKnight, 52 N. J. 35, 58 (1968); State v. Campbell, 53 N. J. 230, 233 (1969); State v. Gerardo, 53 N. J. 261, 268 (1969); State v. Gray, 59 N. J. 563, 567 (1970); State v. McNair, 60 N. J. 8, 12 (1972) ; State v. DeSimone, 60 N. J. 319, 324 (1972). The courts have carefully defined those classes of cases where the search and seizure is deemed reasonable, not withstanding the absence of a search warrant. Those exceptions which survive constitutional inhibition include a search incident to a valid arrest, State v. Marie, 46 N. J. 262, 271 (1966); State v. Boykins, 50 N. J. 73, 77 (1967); State v. Campbell, 53 N. J. 230, 233 (1969); State v. McNair, supra; the seizure of an automobile as an instrumentality of crime, State v. Fioravanti, 46 N. J. 109, 124 (1965), certif. den. 384 U. S. 919, 86 S. Ct. 1365, 16 L. Ed. 2d 440; State v. McKnight, supra, 52 N. J. at 57 — 58; State v. Zito, 54 N. J. 206, 220, 221 (1969), seizure of articles in plain view, Harris v. United States, 390 U. S. 234, 88 S. Ct. 992, 19 L. Ed. 2d 1067 (1968); Chimel v. California, 395 U. S. 752, 89 S. Ct. 2034, 23 L. Ed. 2d 685 (1969); State v. Gray, 59 N. J. 563, 569 (1971), and the existence of probable cause to believe that a crime has been committed, State v. Boykins, supra, State v. Campbell, supra, State v. Hock, 54 N. J. 526 (1969); State v. Gray, supra.

In the instant case the record is barren of facts or circumstances which would allow this case to fall within the ambit of any one of the above-mentioned exceptions.

The automobile was not seized as incident to a lawful arrest; indeed, no arrest was made prior to its seizure. It was not an instrumentality of a crime; violations of motor vehicle laws are not “crimes.” State v. Macuk, 57 N. J. 1 (1970). While the automobile and its studded tires were in plain view neither of them constituted per se property which was injurious to public health or morals.

The facts of this case clearly necessitate an examination of the so-called “Inventory Rule” and its application to this case.

In Cooper v. California, 386 U. S. 58, 87 S. Ct. 788, 17 L. Ed. 2d 730 (1967), reh. and modif. den. 386 U. S. 988, 87 S. Ct. 1283, 18 L. Ed. 2d 243, defendant was lawfully arrested and his car was impounded under the provisions of the California Health and Safety Code, § 1611, authorizing a state officer making an arrest for violation of the narcotic laws to seize a vehicle used in the unlawful transportation of any narco lie, and to hold the car as evidence until a forfeiture be declared or a release of the car ordered. Pursuant to this statute, the accused person’s car was impounded and, a week later, searched. A majority of the United States Supreme Court held that the examination or search of an automobile validly held by officers for use as evidence in a forfeiture proceeding could not be held unreasonable under tbe Fourth Amendment. The court stated: at 386 U. S. 61, 87 S. Ct. 790:

The question is rather whether the search was reasonable under the Fourth Amendment. Just as a search authorized by state law may be an unreasonable one under that amendment, so may a search not expressly authorized by state law be justified as a constitutionally reasonable one. While it is true, as the lower court said, that “lawful custody of an automobile does not of itself dispense with eonstitu-' tional requirements of searches thereafter made of it”, ibid., the reason for and nature of the custody may constitutionally justify the search * * *. Here the officers seized petitioner’s car because they were required to do so by state law. They seized it because of the .crime for which they arrested petitioner. They seized it to impound it and they had to keep it until forfeiture proceedings were concluded. Their subsequent search of the car — whether the state had “legal title” to it or not • — ■ was closely related to the reason petitioner was arrested, the reason his car had been impounded, and the reason it was being retained. The forfeiture of petitioner’s car did not take place until over four months after it was lawfully seized. It would be unreasonable to hold that the police, having to retain the car in their custody for such a length of time, had no right, even for their own protection, to search it. It is. no answer to say that the police could have obtained a search warrant, for “[t]he relevant test is not whether it is reasonable to procure a search warrant, but whether the search was reasonable.” United States v. Rabinowitz, 339 U. S. 56, 66, 70 S. Ct. 430, 435, 94 L. Ed. 653. Under the circumstances of this case, we cannot hold unreasonable under the Fourth Amendment the examination or search of a car validly held by officers for use as evidence in a forfeiture proceeding. [386 U. S. at 61, 87 S. Ct. at 790]

In 1968 tbe Supreme Court again considered the question of the constitutionality of a search of an automobile pursuant to a regulation authorizing the impounding of such vehicle. In Harris v. United States, 390 U. S. 234, 88 S. Ct. 992, 19 L. Ed. 2d 1067 (1968), the police had impounded defendant’s automobile as evidence after his arrest for robbery. Pursuant to a regulation of the Metropolitan Police Department which required the arresting officer to make a thorough search of the car and to remove all valuables from it, the arresting officer opened the car and saw affixed to it the registration card which bore the name of the robbery victim. The card was seized. The court allowed the admissibility into evidence of the card but made express notation that the reason for its holding was based upon the fact that the article was in plain view and not simply the result of the inventory :

The admissibility of evidence found as a result of a search under the police regulation is not presented by this case. The precise and detailed findings of the District Court, accepted by the Court of Appeals, were to the effect that the discovery of the card was not the result of a search of the car, but of a measure taken to protect the car while it was in police custody. Nothing in the Fourth Amendment requires the police to obtain a warrant in these narrow circumstances.
Once the door had lawfully been opened, the registration card, with the name of the robbery victim on it, was plainly visible. It has long been settled that objects falling in the plain view of an officer who has a right to be in the position to have that view are subject to seizure and may be introduced into evidence.” [at 236, 88 S. Ct. at 993]

Mr. Justice Douglas’ concurring opinion (390 U. S. at 236, 237, 88 S. Ct. at 994) noted that:

(1) the car was lawfully in police custody, and the police were responsible for protecting the car;
(2) while engaged in the performance of their duty to protect the ear, and not engaged in an inventory or other search of the oar, they came across incriminating evidence.” [Emphasis supplied]

That same year the Supreme Court invalidated a search of an automobile by police officers which was made after the arrest of the occupants for a traffic offense. However, the arrest was not made until the defendants were in custody inside the court house, with the automobile parked on the street outside. In Dyke v. Taylor Implement Mfg. Co., 391 U. S. 216, 88 S. Ct. 1472, 20 L. Ed. 2d 538 (1968), the court observed that the search in question was not saved by Cooper v. California, supra, and stated:

In the instant case there is no indication that the police had purported to impound or to hold the ear, that they were authorized by any state law to do so, or that their search of the car was intended to implement the purposes of such custody. Here the police seem to have parked the car near the courthouse merely as a convenience to the owner, and to have been willing for some friend or relative of McKinney (or McKinney himself if he were soon released from custody) to drive it away. The reasons that made the warrantless search in Cooper reasonable thus do not apply to the search here, [at 221, 88 S. Ct. at 1475]

We note that in Cooper, Harris, and Dyke, supra, the decisions by the Supreme Court are silent on the question of whether an inventory conducted per se pursuant to an impounding regulation is constitutionally valid; nevertheless a varietjr of cases has arisen since Cooper, supra, which has resulted in the conception of the popularly-coined “Inventory Rule.” This rule was explained by the court in State v. Montague, 73 Wash. 2d 381, 438 P. 2d 571 (Sup. Ct. 1968):

What is uow frequently referred to as the inventory rule will not apply, however, and evidence of crime discovered during the taking of the inventory will be suppressed, as evidence, unless there first be a lawful arrest. Miller v. State, 137 So. 2d 21 (Fla. App. 1962). * * * Neither would this court have any hesitancy in suppressing evidence of crime found during the taking of the inventory, if we found that either the arrest or the impoundment of the vehicle was resorted to as a device and pretext for making a general exploratory search of the car without a search warrant. State v. Michaels, 60 Wash. 2d 638, 374 P. 2d 989 (1962) ; People v. Garrison, 189 Cal. App. 2d 549, 11 Cal. Rptr. 398 (1961).
When, however, the facts indicate a lawful arrest, followed by an inventory of the contents of the automobile preparatory to or following the impoundment of the car, and there is found to be reasonable and proper justification for such impoundment, and where the search is not made as a general exploratory search for the purpose of finding evidence of crime but is made for the justifiable purpose of finding, listing, and securing from loss, during the arrested person’s detention, property belonging to him, then we have no hesitancy in declaring such inventory reasonable and lawful, and evidence of crime found will not be suppressed. [438 P. at 574]

Basically, the cases can be grouped into five classifications: (1) those which validate a search predicated on an inventory made because oí a police policy to impound automobiles after an arrest has been made. United States v. Robbins, 424 F. 2d 57 (6 Cir. 1970), cert. den. 402 U. S. 985, 91 S. Ct. 1674, 29 L. Ed. 2d 15 (1971); United States v. Lipscomb, 435 F. 2d 795 (5 Cir. 1970), cert. den. 401 U. S. 980, 91 S. Ct. 1213, 28 L. Ed. 2d 331 (1971); United States v. Boyd, 436 F. 2d 1203 (5 Cir. 1973); United States v. Pennington, 441 F. 2d 249 (5 Cir. 1971), cert. den. 404 U. S. 854, 92 S. Ct. 97, 30 L. Ed. 2d 94 (1971). The courts in these cases appear to rationalize their decisions upon the basis of Cooper v. California, supra, and Chambers v. Maroney, 399 U. S. 42, 90 S. Ct. 1975, 26 L. Ed. 2d 419 (1972); however, the limitations in Cooper (seizure of the automobile as evidence and close relationship between the reason for the search, reason for impounding and reason for arrest), and Chambers (probable cause), were absent in these cases; (2) cases which validate a search predicated on an inventory made because of police policy to impound automobiles after an arrest has been made, with the additional requirement that the item be within plain sight: Cotton v. United States, 371 F. 2d 385 (9 Cir. 1967) ; United States v. Mitchell, 458 F. 2d 960 (9 Cir. 1972). The courts approve the taking of an inventory but nevertheless base their decision upon the Supreme Court’s approval of reasonable police conduct which protects an impounded car in Harris v. United States, supra; (3) cases which hold that a warrantless search of an automobile under police control is only lawful if such search is closely related to the reason for the arrest and the reason that the automobile is in custody: Williams v. United States, 412 F. 2d 729 (5 Cir. 1969); United States v. Ryan, 415 F. 2d 847 (5 Cir. 1969); Sexton v. Gibbs, 327 F. Supp. 134 (D.C. N.D. Tex. 1970); (4) cases which invalidate the inventory as an unlawful search and seizure, where the impounding, conducted after the accused’s arrest, was not conducted pursuant to the lawful limitations prescribed by Cooper and Harris, supra: United States v. Pannell, 256 A. 2d 925 (D.C. Ct. App. 1969); Pigford v. United States, 273 A. 2d 837 (D.C. App. 1971); (5) cases which invalidate a search predicated upon an inventory where the impounding of the automobile conducted after the defendant’s arrest, was lawful but nevertheless hold that the search was unreasonable. In Mayfield v. United States, 276 A. 2d 123 (D.C. Ct. App. 1971) the court stated:

This court, however, in situations where the search has occurred in a parking area contiguous to a police station while the accused is inside the building being booked on a traffic charge (which is the case here) has consistently held that resort to impoundment procedure does not make admissible — at least for the prosecution of wholly different offenses — articles thereby uncovered which would be otherwise inadmissible on fourth amendment principles, [at 125, citations omitted]

And in State v. Ruiz, 17 Ariz. App. 76, 495 P. 2d 516 (Ct. App. 1972); People v. Miller, 7 Cal. 3d 219, 101 Cal. Rptr. 860, 496 P. 2d 1228 (Sup. Ct. 1972), and Mestas v. Superior Court of Santa Clara County, 7 Cal. 3d 537, 102 Cal. Rptr. 729, 498 P. 2d 977 (Sup. Ct. 1972), it was held that the absence of facts indicating “exigent circumstances,” “probable cause,” or “search incident to a lawful arrest, was fatal to the argument that a search is reasonable when only predicated on the fact that an inventory was made of an impounded automobile.

In all of the above-cited eases an arrest was made. They are, thus, clearly distinguishable from the instant matter wherein there was no arrest.

The Supreme Court of California considered the question of an inventory taken when a vehicle was impounded without a prior arrest. In Mozzetti v. Superior Court Sacramento County, 4 Cal. 3d 699, 94 Cal. Rptr. 412, 484 P. 2d 84 (Sup. Ct. 1971), petitioner was injured in an automobile accident and was promptly removed by ambulance to the hospital. When police arrived at the scene, they determined that petitioner’s vehicle was blocking the roadway and arrangements were made to have the car towed to police storage pursuant to the Motor Vehicle Code. In accordance with police department procedure, the officer conducted an inventory of the contents of the automobile, in the course of which he found a suitcase, opened it and discovered marijuana. The marijuana was seized. In condemning the inventory as an unlawful search and seizure, the Court rejected the Government’s distinction between an inventory and a search and stated:

It is apparent from the foregoing and other decisions that the several Courts of Appeal have adhered to a circumscribed, semantic approach in defining the scope of the Fourth Amendment’s prohibition against unreasonable searches and seizures. Such a concept was expressly rejected by the United States Supreme Court in Terry v. Ohio (1968) 392 U. S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889.
Moreover, language employed in decisions in both the Supreme Court and this court points toward rejection of the notion that a police inventory is not a search within the scope of the Fourth Amendment. (See Harris v. United States (1968), 390 U. S. 234, 236, 237, 88 S. Ct. 992, 19 L. Ed. 2d 1067; People v. Williams (1967) ; 67 Cal. 2d 226, 60 Cal. Rptr. 472, 430 P. 2d 30; People v. Grubb, (1965), 63 Cal. 2d 614, 618, 47 Cal. Rptr. 772, 408 P. 2d 100 * * * merely because the police are not searching with the express purpose of finding evidence of crime, they are not exempt from the requirements of reasonableness set down in the Fourth Amendment. Constitutional rights may not be evaded through the route of finely honed but nonsubstantive distinctions. [484 P. 2d at 87]

The Court of Appeals of Arizona recently decided a similar situation. In re One 1965 Econoline I. D. E 16 JH 702043, Ariz. License No. EC-7887, 17 Ariz. App. 64, 495 P. 2d 504 (1972), a state police officer encountered a Ford van on the side of the highway, which had been involved in an accident. The officer informed the occupant that the vehicle would have to be towed away, and without asking or receiving consent he conducted an inventory. In the course of his inventory the officer opened a shaving satchel and discovered narcotic paraphernalia. He arrested the occupant. In rejecting the State’s argument that an inventory procedure is to be distinguished from a search, the court based its reasoning upon the decision in Mozzetti v. Superior Court of Sacramento County, supra, and referred to Chief Judge Euld’s dissenting opinion in People v. Sullivan, supra, and said :

Kather, we agree with the dissenting opinion of Chief Judge Fuld, who, citing Mozzetti, renounces the majority view. Chief Judge Fuld ably points out in his dissent that the cases relied upon by the majority as justification for the inventory search are clearly distinguishable as dealing with a search subsequent to an arrest. Indeed, in Cooper v. California, 386 U. S. 58, 87 S. Ct. 788, 17 L. Ed. 2d 730 (1967), relied upon by the majority in Sullivan, the United States Supreme Court itself pointed out:
“*■ * * The officers seized petitioner’s car * * ® because of the crime for which they arrested [him]. Their subsequent search of the car * * * was closely related to the reason petitioner was arrested, the reason his ear had been impounded, and the reason it was being retained.” 386 U. S. at 61, 87 S. Ct. at 791.
In the case sub judice there is no particular relationship between the reason for taking the car into custody, the reason for impounding it, and the reason for the search.
We agree with Mozzetti and hold that an “inventory search” constitutes a “search” within the meaning of the Fourth Amendment to the United States Constitution. [495 P. 2d at 508]

After its determination that the “inventory” conducted by the police officer was indeed a “search,” the court proceeded to consider the reasonableness of the search in light of the limitations expressed in Cooper v. California, and Chambers v. Maroney, supra.

New Jersey, unlike California, does not have a statutory provision relating to removal of vehicles from the highway. The action taken by Patrolman Adcock must therefore be judged on the reasonableness of such action under the circumstances in the light of the New Jersey and United States Constitutional protection against unreasonable seizures. No judicial formula has been established to determine what is reasonable. Decision must be based on the facts and circumstances of each case. Go Bart Importing Co. v. United States, 282 U. S. 344, 51 S. Ct. 153, 75 L. Ed. 374 (1931).

Studded snow tires are permitted in New' Jersey between November and April. (New Jersey Division of Motor Vehicle Regulations, “Design, Construction and Use of Tires Pitted with Studs,” 13:4 — 119.1, § 2, par. g). Judicial notice must be taken of the fact that the roads are not snow-covered continuously during that period. Damage to bare roads in December is not really much different from damage to bare roads in August. That fact, plus the relatively low fine established by the Legislature for the use of such tires, indicates that being fitted with such tires is not alone sufficient cause for the seizure of a vehicle.

The vehicle had failed inspection on August 12, 1972. The card furnished at the inspection station indicates that the card given was a “second card.”

We do not know what was rejected the first time the vehicle was inspected, but on the second inspection the vehicle was rejected because of poor or improper (1) wheel alignment, (2) directional signals, (3) red rear light, (4) stop lights, (5) studded tires, (6) exhaust system, (7) head lights, (8) wiring and switching, (9) parking brake handle. It 'is reasonable to infer that these were the same items rejected at the original inspection.

While ón or perhaps even a combination of some of the above violations would not justify the seizure of an automobile, the circumstances present in this case lead to a different conclusion. This was the second inspection for the automobile: it was rejected for nine violations, some of which created a hazard to the occupants of the subject vehicle as well as to other motorists on the road. This is particularly true in the area of wheel alignment, directional signals and stop lights.

It is well settled that driving an automobile is a privilege, not a right, and subject to the' reasonable exercise of the police powers of the State. Garford Trucking Inc. v. Hoffman, 114 N. J. L. 522 (Sup. Ct. 1935); State v. Kabayama, 94 N. J. Super. 78 (Law Div. 1967), aff’d 98 N. J. Super. 85 (App. Div. 1967).

The police powers were not abused by the decision to remove this particular vehicle from the road. The court does not find such action, on the facts of this case, to be “unreasonable” so as to be proscribed by the constitutional protections.

The seizure of the vehicle having been found to be proper, the subsequent inventory of the vehicle was proper. The white envelope which was found between the seat and console was in plain view once the officer entered the automobile. His entry into the vehicle was proper, and thus that which was in plain view thereafter was legitimately inventoried. It should be noted that we are not here concerned with a closed suitcase, as in Mozzetti, supra, a shaving satchel, .as in One 1965 Econoline, supra, or any other type of closed or locked package.

The discovery of the marijuana in the exposed envelope justified the arrest of the occupants. The arrest then justified the subsequent search of the persons of the defendants over the search of the vehicle.

This court concludes that the seizure of this automobile under the circumstances of this case, was reasonable and not violative of the New Jersey and United States Constitutions. For the reasons herein expressed, the motion to suppress is denied.

       In Chambers v. Maroney, the court stated (399 U. S. at 52, 90 S. Ct. at 1981), “On the facts before us, the blue station wagon could have been searched on the spot when it was stopped since there was probable cause to search and it was a fleeting target for a search.”

         State v. Ruiz and People v. Miller, supra.

         People v. Miller and Mestas v. Superior Court of Santa Clara supra.

         Mestas v. Superior Court of Santa Clara County, supra.

       Vehiele Code, § 22651, provides in part as follows: “Any member of the California Highway Patrol * * may remove a vehicle from a highway under the following circumstances: * * * (g) When the person or persons in charge of a vehicle upon a highway are by reason of physical injuries or illness incapacitated to such an extent as to be unable to provide for its custody or removal.”


author: Walsh, P. J. D. C.

text:
    ALFOUR INC., A NEW JERSEY CORPORATION, PLAINTIFF, v. GEORGE LIGHTFOOT (NO. T-289113), WILLIE NORMAN (NO. T-289114), MARY MIKE (NO. T-289115), LONNIE IRVING (NO. T-289116), RUBY NORMAN (NO. T-289117), SYLENA BUSH (NO. T-289118), WALLACE SMITH (NO. T-289119), BRENDA NORMAN (NO. T-289121), DEFENDANTS (CONSOLIDATED).
    District Court, Essex County
    Decided February 1, 1973.

      Decided February 1, 1973

      Mr. Emil H. Bloclc, for plaintiff.

      Mr. Richard E. Blumberg of the Newark-Essex Joint Law Eeform Project, for defendants.
   Walsh, P. J. D. C.

The defendants in a summary landlord and tenant dispossess action have made demand for trial by jury:

The summary proceedings were instituted under the provisions of N. J. S. A. 2A:18--53, which reads in part, insofar as it is pertinent to the present proceeding:

B. SUMMARY ACTIONS EOR RECOVERY OP PREMISES

Removal of tenant in certain oases; jurisdiction
Any * * * tenant * * * may be removed from such premises by the county district court * * * in an action in the following cases:
a. Where such person holds over * * *
b. * * after a default in the payment of rent * * *

A default in rent is alleged and admittedly has occurred. The court, under authority of Marini v. Ireland, 56 N. J. 130, ordered the back rent payments made into court and consolidated the matters for hearing to convenience all parties.

Defendants, although admitting the statute is headed, a “summary action” and being unable to explain to the-court the admitted inconsistency of the words “summary action” with trial by jury, base their demand for a trial by jury on:

(A) Art. I, par. 9, of the New Jersey State Constitution (1947), which reads:

The right of trial by jury shall remain inviolate; but the Legislature may authorize the trial of civil causes by a jury of six persons when the matter in dispute does not exceed fifty dollars. The Legislature may provide that in any civil cause a verdict may be rendered by not less than five-sixths of the jury. The Legislature may authorize the trial of the issue of mental incompetency without a jury.

(B) N. J. S. A. 2A:18-16, which reads:

Right to jury trial; demand
Either party to any action commenced in a county district court may demand a trial by jury.

and:

(C) B. 6:5-3(a), which reads, insofar as it relates to this case:

In summary actions between landlord and tenant and actions in small claims division (except actions for property damage resulting from negligence in a motor vehicle accident), the demand shall be filed and served and the fee paid by the demanding party at least one day before the return day of the summons.

The demand for a jury trial is denied, and because of a complete lack of any one full comprehensive decision in this State on the question, the court sets forth its reasons for this ruling in full.

The statute, N. J. S. A. 2A:18-53, under which the landlord instituted this summary proceeding was first enacted into law, in derogation of the existing common law, by the New Jersey Legislature in 1847. It has been described as follows:

A summary dispossession action is a special action created by statute, for the purpose of enabling a landlord to recover from his tenant ■the possession of real estate leased to the latter, speedily and easily. 'This action was intended to overcome the obstacles incident to ejectment, whereby the tenant could resort to technical delays and withhold the possession of the premises for an indefinite period.”
ILeVine, Landlord and Tenant Law, § 3231 at 486]

Prior to the Constitution of 1844 and until the act of March 4, 1847, if the tenant held over, the landlord was compelled to bring an action for ejectment and both parties enjoyed a right to a trial by jury. (This is a right of action that is presently available to the parties remaining after a judgment in the present summary proceedings.)

The original act of March 4, 1847 provided for a trial bjr a jury of six. An amendment, in section I of the act of March 8, 1848, provided for a jury of 12. Subsequent amendments on March 27, 1874 and April 5, 1876 did not seriously alter this right to a jury. However, the act of April 23, 1888, the forerunner of the present act, omitted the clause calling for a trial by jury. Every amendment thereafter appears to have followed this course of procedure, down to and including the preamble of the last amendment to the present act which reads as follows:

An Act concerning the county district courts in relation to summary actions for recovery of premises in proceedings between landlord and tenant and amending section $A:18—58 of the New Jersey Statutes. [L. 1966, c. 319; italics supplied]

The court finds that there is simply no right to a trial by jury given by the statute, N. J. S. A. 2A:18-53, under which relief is sought. In fact, by designating it a “summary action” the Legislature has specifically denied that right. Until the designation of “summary action” is changed in the statute by the Legislature, it must be administered in that fashion by the courts.

The Legislature saw fit to set forth the words “summary actions” in the preamble to the 1966 act. This intention, so boldly stated in the title of the act, cannot be lightly ignored.

Under the constitutional provision a title is an indispensable part of every statute, and the expression of the subject of the act must be found, if at all, in the words of the title. [IA Sutherland Statutory Construction, § 18.07]

Every court that has had occasion to treat with the act has construed it as a summary proceeding. To be more explicit, every court has found it to be an interlocutory remedy that is neither final nor binding as res adjudícala on the parties to the dispossess proceedings. The courts have held that there are many other, complete and immediate remedies that provide for a trial by jury. See Vineland Shopping Center v. DeMarco, 35 N. J. 459 (1961), where the court said:

The summary dispossess statute originated in 1847 (p. 142). The purpose was to give the landlord a quick remedy for possession. Appellate review was barred, thus giving finality to the trial court’s judgment with respect to possession. The tenant was remitted to an action for damages in which the judgment in the possessory action had no binding effect upon the ultimate merits of the case, [at 462; italics supplied]

The court spelled out the only power that resided in the county district court under this summary procedure was that of ordering possession.

The jurisdictional question is not merely whether the controversy is between landlord and tenant with respect to possession, for the Legislature did not commit the entire subject to the county district court. Rather that court was granted jurisdiction to adjudicate only in specified categories of disputes. They appear in N. J. S. 2A -.18-53. [at 463; italics supplied]

Other courts have passed on the summary nature of the proceedings of this statute. Randell v. Newark Housing Authority, 384 F. 2d 151 (3rd Cir. 1967), cert. den. 393 U. S. 870, 89 S. Ct. 158, 21 L. Ed. 2d 139 (1961); Academy Spires Inc. v. Jones, 108 N. J. Super. 395 (1970) and Morrocco v. Felton, 112 N. J. Super. 226, at 230 (Law Div. 1970), where the court stated:

Under N. J. S. A. 2A:18-53 the county district court is normally the proper place to institute and adjudicate dispossess proceedings. Those proceedings, however, must be heard in a summary manner and the court lades any general equitable jurisdiction. [Italics supplied]

The only case, close to pointn, that was urged on oral argument by defendants is Fry v. Myers, 56 N. J. L. 115 (Sup. Ct. 1893). This case in no way supports an argument for a trial by jury under the present statute. In fact, all it does is rationalize and reaffirm the common law right of trial by jury in ejectment by comparing it with the statute:

Under the ejectment proceedings, prior to 1847 a trial by jury was a matter of right, unless waived by the parties, and from that time until 1888 there had always been express provision for a jury trial, although for one year (1847-48) a jury of only six men was named in the act. [at 117; italics supplied]

This court finds no argument with that conclusion. In fact, in 1919 the Court of Errors and Appeals spelled out the summary manner in which the statute was to be applied and the remedies that still remained available to an unsatisfied tenant or landlord after the termination of an interlocutory dispossess in a summary proceeding without a jury. See McGann v. LaBrecque Co., 91 N. J. Eq. 307 (E. & A. 1919) :

The MU was to enjoin the enforcement of possession after a judgment in favor of the defendant, the landlord, against the complainant, the tenant, by summary proceedings to dispossess after the end of the term. The vice chancellor correctly held that no equitable right was involved. lie bases his jursidiction wholly upon the inadequacy of the remedy at law, and, since the correctness of the present judgment for possession is not disputed, the jurisdiction of the Court of Chancery cannot be sustained on any peculiar fact of this case, but must rest on the view that, speaking generally, without regard to the facts of the particular case, the remedy at law must be inadequate. The remedy is by action of trespass, exactly the remedy that has existed in English law for centuries, certainly from the time of Henry III. When the legislature in 1847 enacted the statute providing for summary proceedings by a landlord to obtain possession of his property, its evident object was to settle speedily the right to the immediate possession by a judicial proceeding, and thereby avoid actual physical conflict the occurrence of which had made necessary the statutes relating to forcible entry and detainer. Fry v. Myers, 56 N. J. L. 115. But the legislature recognized that the landlord might be in the ivrong, and therefore took away from the judgment of dispossession all semblance of a determination of the ultimate right as distinguished from the immediate possession by enacting that the landlord shall remain liable -in an action of trespass for any unlaic ful proceedings under the act. P. L. 1847 p. 142. This is reenacted in section 113 of the District Court Act (Comp. Stat. p. 1990 § 113) and in section 7 of the act of 1903. Comp. Stat. p. 3074 pi. 18g. The use of the word “remain” is a clear proof that it was the old common-law action of trespass that was preserved, and not a neio remedy that loas provided for the first time. We can hardly believe that the learned vice chancellor meant at this late date to decry the most characteristic action of the common law, of which trover and assumpsit were mere developments, and to hold that a jury could not assess adequate damages in an action of tort. If he meant to hold that, ho in effect held that in any case triable by jury the Court of Chancery might intervene by injunction and draw the ease into its jurisdiction whenever the chancellor thought that a jury would not rise to his notion of adequate damages. We are at a loss to know what criterion of adequacy could be suggested. The amount involved is of no consequence, since it is the glory of the law to treat cases where the amount is small with the same careful consideration as cases involving millions. The poor man who may be ejected from his apartments may suffer damage as serious to him as the loss suffered by the present plaintiff in losing the good will which he has built up under a lease terminable on six months’ notice. The injury to both may be determined by a jury if the ejection is unlawful. Unliquidated damages must be assessed by a jury, and it is only in cases involving some special feature that the Gourt of Chancery ever undertakes the task, [at 308-309; italics supplied]

This is the type of action, in which the right to trial by jury exists for landlords and tenants in our county district courts. This is the full hearing type of trial that is covered by N. J. S. A. 2A:18-16 and R. 6:5-3(a), and Art. I, par. 9 of the 1947 State Constitution. No court has ever stated that the question of interlocutory possession was to be a subject of trial by jury under the present summary dispossess statute.

This principle of summary proceedings has been enumerated by the highest court of our State in McGann v. LaBrecque supra, where the possession question under the statute was heard without a jury; and apparently adopted without any further comment in Vineland v. DeMarco, supra, and more recently in Marini v. Ireland, 56 N. J. 130 (1970).

If, in fact, Fry v. Myers, supra, can be said to have interpreted the statute to permit a jury (a conclusion which this court does not admit), it was overruled by the clear and concise holding of the Court of Errors and Appeals by its interpretation of the statute in McGann v. LaBrecque.

Additionally, the court denies the demand because no constitutional right existed either in 1844 or in 1947 for a trial by jury in a summary dispossess action. Simply stated, the act of 1847 was nonexistent in 1844. The remedy at that time was ejectment and contemplated a jury trial. In 1947 the act, as it then existed, did not contain a grant from the Legislature for a trial by jury of interlocutory summary dispossess actions. Certainly, the Legislature possessed the power to pass the act in a form which called for summary proceedings when it created a new cause of action that was unknown to the common law.

The constitutional right to a trial by jury is guaranteed only in those cases where it existed at common law at the time of the adoption of the original Constitution of 1776 and Constitution of 1947. Montclair v. Stanoyevich, 6 N. J. 479 (1951). In addition to all of the common law remedies available to the parties, after the determination of the summary issue of possession, are the following statutes which form only a small part of the myriad avenues for relief.

N. J. S. A. 2A:18-59. Revieio; landlord liable for unlawful proceedings
Proceedings had by virtue of this article shall not be appealable except on the ground of lack of jurisdiction. The landlord, however, shall remain liable in a civil action for the unlawful proceedings under this article.

See also, N. J. S. A. 2A:39-1 et seq., prohibiting unlawful entry and detainer; N. J. S. A. 2A:42-10.10 et seq., barring reprisals against tenants; N. J. S. A. 2A:6-43, allowing suits in small claims courts for rent security; N. J. S. A. 2A:18-61, outlining the right of jury trial upon removal to the Superior Court; N. J. S. A. 46:8-21.1 setting a time limit and damages for failing to return a tenant’s rental security deposit; N. J. S. A. 2A:18-55, providing for discontinuance of dispossess proceedings upon payment of rent into court, and N. J. S. A. 2A:18-59, which holds the landlord liable for unlawful proceedings under this article.

N. J. S. A. 2A:18-61 provides an excellent example of how the Legislature indicated that N. J. S. A. 2A:18—16 did not apply to N. J. S. A. 2A:18-53. It reads:

Trial ~by jury in superior court; appeal from superior court
A summary action for the removal of a tenant, commenced in a county district court, but transferred to the sunerior court, shall be tried before a jury, unless a jury is -waived. The judgment of the superior court in the action shall be appealable.

This statute specifically designates the action in the county district court as “summary.” If the action is transferred it must occur on application to, and approval by, the Superior Court. This application is made on grounds other than the summary questions of possession. It is on removal, and only on removal, that the Legislature designates the trial to be by jury. If a trial by jury was intended by the Legislature in the summary proceedings in the county district court, why was it not so stated? But more important, why was it necessary to state in N. J. S. A. 2A:18-61 that on removal then there would be a jury trial. The only logical conclusion to be drawn is that the Legislature meant what it said when it designated N. J. S. A. 2A:18-53 as a “summary action” and did not provide for trial by jury. Any other conclusion could result in two different jury findings, on the same set of facts, if either party proceeded under N. J. S. A. 2A:18-59. In addition, this interpretation would give a finality to the summary prossession action, despite the whole body of law and the statutes to the contrary.

The third reason for denial of the demand is that the words “summary actions” contained in R. 6 :5-3(a), the rule which defendants seek to invoke, are mutually exclusive of a trial by jury.

The term “summary” means “without a jury.” To this effect, see 2 Bouvier’s Law Dictionary (Bawle’s 3d rev.) :

Summary proceeding. A form of trial in which the ancient established course of legal proceedings is disregarded, especially in the matter of trial by jury, and, in the case of the heavier crimes, presentment by a grand jury. [Italics supplied]

See also Blade’s Law Dictionary:

“Summary, adj. Short, concise. State v. Bettman, 124 Ohio St. 24, 176 N. E. 664, 665. Immediate, peremptory; off-hand; without a jury; provisional; statutory. The term used in connection with legal proceedings. [Italics supplied]

More directly to the point, see 83 C. J. S. § 4c at 793:

* * * and since at common law the right to trial by jury did not exist in summary proceedings, these proceedings are still triable without a jury.

Continuing therein, it is further stated:

Indeed, if the procedure under the statute is to be without a jury, a jury cannot be called.

This court knows of no present standard of practice that would permit a jury to hear an equitable defense to a summary dispossess action, as required by the holding of the Supreme Court in Vineland v. DeMarco, supra, 35 N. J. 459, and on that basis permit the jury to grant the relief of reformation of a rental contract via the avenue of abatement on such terms and conditions that appear to he equitable under the then existing circumstances. Added to this problem is the inevitable equitable follow-up supervision required by the ruling in Marini v. Ireland, supra, 56 N. J. 130. Would this not require that the jury that heard the case would have to remain intact to make certain that the equitable requirements of Marini were met?

All of the above, of course, is to be returned by a jury verdict that is neither appealable, binding or res adjudicóla on the parties. Any such verdict would fly in the face of the statutes and the cases thereunder. In short, such a remedy is impossible in this day and age for reasons herein stated.

The fourth reason why the court rejects the application for trial by jury is peculiar to this court alone in the area of the City of Newark, County of Essex.

The Appellate Division in Samuelson v. Quinones, 119 N. J. Super. 338 (1972), had occasion to comment on this particular problem:

We take judicial notice of the fact that there is an acute shortage of low-income housing in the City of Newark, and that such housing which exists is frequently not in full compliance with the city’s housing ordinances and building codes. We must also recognize the hard practical facts of life that if landlords, under existing conditions, were to be deprived of all rents because of noncompliance with such ordinances and building codes there would be far fewer available low income housing units — landlords would either abandon their properties, or if they spent the money needed to comply with the ordinances and codes the amount or rent they would have to charge would price low income tenants out of the market. The problem seems to be almost insoluble, [at 343]

Perhaps the problems are insoluable, as suggested by the Appellate Division, but they are present and they mnst be faced by this court, at this time.

The Legislature has charged the Essex County District Court with the responsibility of discharging the summary dispossess statute, N. J. S. A. 2A:18-53. In the course of following this mandate the court received during the year of 1972, for filing, 17,656 summary dispossess actions. On the average, 90 cases were listed and 85 disposed of each and every court day.

The Legislature well knew what it was doing when it created this statute as a summary proceeding. If only 25% of the parties involved in these 17,656 causes were entitled to and had the cases heard by a jury instead of by a judge in a summary manner, the court would be effectively clogged and powerless to administer the summary dispossess actions, to say nothing of the disposition of the various other civil and tort matters pending therein. This course would require an untold additional number of judges, new court rooms, expanded lists of jury panels and increased personnel.

If each jury could be (1) selected, (2) impaneled, (3) hear the facts, (4) hear openings, (5) hear summations, (6) be charged (7) deliberate, and (8) deliver its verdict in a day, the court with its existing personnel and judges could hear one or possibly two cases a day. I know not what would happen to the other 83 landlord and tenant cases listed each and every day. At the end of the first week there would conceivably be a backlog of 332 unheard cases that would have ordinarily been disposed of under the summary statute.

This is why the act, as it was passed by the Legislature, contained the designation “summary actions.” This is why the courts have construed them as summary proceedings. This is why the Legislature enacted the various other remedies for the parties. This is why the judgment for possession is not binding, final or res adjudicaba. This is why the right to a trial by jury exists for the parties even after the summary proceedings. If the act is to be changed from its designated summary character, it must be changed by the Legislature and not by the courts.

No cogent reason has been presented to show that the rights of any of the parties have been violated or watered down. There has been no showing of why a decision by a judge sitting without a jury deprives any party of a full day in court under the summary statute.

The ruling of the court makes moot the question of whether a party represented by one of the recognized law reform projects automatically, ipso facto, is exempted from the payment of jury fees without application to the court. That question is not before the court except to the extent the fees herein have been paid under protest. It is the conclusion of this court that R. 1:13-2, in its exception without obtaning further approval of the court, applies only to the fees necessary to bring the indigent party to a hearing and his day in court. As such, the automatic exemptions apply to filing and processing fees. Any other waivers such as fees for transcripts or interpreters and the like would have to be granted on application to the court.