author: Fulop, J. S. C.

text:
    IN THE MATTER OF THE ADOPTION OF A., AN ADULT BY MR. AND MRS. C., PLAINTIFFS.
    Essex County Court Probate Division
    Decided January 24, 1972.

      Mr. Edward Temer, fox plaintiffs.
   Fulop, J. S. C.

(tempoiaxily assigned). This is an application for the adoption of an adult.

Mr. and Mrs. C., highly respectable religious people of apparently modest means, seek to adopt A., a 29-year-old man confined to the State Prison at Rahway, for a term of 10 to 20 years on conviction of murder. The C.’s adult son concurs and urges the adoption. All three testified to their love of A. and their desire to give him the assurance of a warm family feeling by adopting him. I have been informed that this procedure is part of a rehabilitation program sponsored by the Fortune Society.

There were prison disturbances at the time of the hearing of this matter, and A. was not permitted to attend the hearing. He signed a written consent to the adoption.

I have reviewed the presentence investigation report prepared by the Essex County Probation Department, before A. was sentenced. He is now 29, married, and has two children by that marriage. His record of involvement with the criminal law from 1960 to 1968 includes convictions for unauthorized use of a motor vehicle, impersonating a police officer, threatening, assault and battery, attempted arson, and the murder hereinafter referred to. Two charges of rape were disposed of in his favor. Charges of robbery and possession of a pistol were never disposed of.

In 1968, A. pleaded non vult to a charge of murdering his paramour, the crime for which he is now imprisoned. According to his account, she threatened to tell his wife about their relations because he lacked $10 to give the paramour for a new dress he had promised her. To quiet a loud outcry on her part in the cellar of the house in which he lived, he choked her, causing her death.

Plaintiffs testified that they know A.’s criminal record and nevertheless wish to adopt him. Two people of standing testified to plaintiffs’ good character and the nobility of their purpose. Several such persons have written me to urge approval of the adoption.

Plaintiffs’ attorney argues that the court has no discretion to deny the adoption by reason of the background of the proposed adoptee.

The common law did not recognize the right of adoption; it exists solely by statute 21 A. L. R. 3d 1012, 1016; 2 Am. Jut. 2d, Adoption, § 2. The statutory provisions in this State with respect to adoption of adults consist of three sections, N. J. 8. A. 2A:22-1, 2 and 3. The last section deals with the effect of adoption, particularly with respect to inheritance. N. J. 8. A. 2A:22-2 prescribes that the adopting parents be at least 15 years older than the adoptee and that the latter consent in writing to be adopted. N. J. 8. A. 2A:22-1 provides in relevant part as follows:

* * * the * * * court, shall allow * * * a husband and wife jointly to adopt an adult person and may change the name of the adult, if the court is satisfied that the adopting parent or parents are of good moral character and of reputable standing in their community, and that the adoption will be to the advantage and benefit of the person to be adopted.

The statute does not specify that the adoption may be refused if the adult sought to be adopted is not of good moral character or reputable standing. I have found no construction of the law in this connection. But it must be given a sensible construction. Both the adopting and the adopted parties are adults. The difference in age gives no assurance that the elders are shrewder or wiser than the younger. The adopted adult may cheat or otherwise take advantage of the adopting adults quite as much as the converse. The statute must be construed to place discretion in the court to refuse to sanction the adoption of an adult of bad character. It is the duty of the court to protect both parties.

Even assuming that the court lacks power to deny the adoption for lack of character qualifications of the proposed adoptee, the statute clearly prohibits the adoption unless it be “to the advantage and benefit of the person to be adopted.”

TMs court is asked to give legal sanction, to a situation with great potential for harm, with little justification in the necessities of the case. Plaintiffs have the right to treat the proposed adoptee as their son in all respects without adopting him. They may show him all of the love and affection they feel. They may leave him property by their wills. If there is any problem about being allowed to visit defendant in prison, an order may be made that they be given the same prvileges as are allowed parents and siblings. The law does not require or prohibit love or kindness. It deals only with legal rights and duties.

The proposed adoptee is a married man with two children. When he comes out of prison he and his family may well suffer great embarrassment by the creation of the proposed new relationship.

I am convinced that the legal adoption sought would not assist in the rehabilitation of A. to any mention-worthy extent, if at all more than the plaintiffs freely given affection and assistance may do. The proof fails to establish that “the adoption will be to the advantage and benefit of the person to be adopted.”

The application is denied.


source: Caselaw Access Project

author: Conford, P. J. A. D.

license: Public Domain

text:
    TRAVEL AGENTS MALPRACTICE ACTION CORPS, PLAINTIFF-APPELLANT, v. REGAL CULTURAL SOCIETY, INC., and REGAL TOURS, INC., DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued October 12, 1971
    Decided February 1, 1972.

      Before Judges Ooheord, Matthews and Eritz.

      Mr. Andrew Mainardi, Jr. argued the cause for appellant {Messrs. Mainardi <& Mainardi, attorneys).

      Mr. Martin Klughaupt argued the cause for respondents.
   The opinion of the court was delivered by

Conford, P. J. A. D.

The Chancery Division entered summary judgment in favor of defendants, and plaintiff appeals.

Plaintiff (“TAMAC”) is an unincorporated association of 14 travel agencies, formed under authority of N. J. 8. A. 2A:64-1, whose individual business operations are conducted in the northeastern part of the State. Defendant Regal Tours, Inc. (“Tours”) is a travel agency operating in the same general area. Defendant Regal Cultural Society, Inc. (“Cultural Society”) is a corporation apparently having a close working relationship with Tours. Plaintiff contends that the sole or dominant purpose of Cultural Society is to sell its members cut-rate air travel on charter flights arranged for by Tours and that the public is solicited to become members for that and no other Iona fide organizational purpose; that Tours has organized and runs Cultural Society for such purposes and its own profit, and that these purposes, objects and activities are in violation of a contract among International Air Transport Association (“IATA”), travel agents authorized to issue airline tickets for transport on member airlines of IATA (including members of TAMAC and Tours) and such member airlines.

Plaintiff alleges that the contract violation by Tours consists of the scheduling and arrangement of charter flights “by non-affinity groups,” contrary to express provision of the TATA agreement “and to the great detriment of all travel agents within the customer area of the plaintiff’s organization members.”

By reason of the foregoing plaintiff sought an injunction and damages.

By amendment of the complaint plaintiff charged that in violating the IATA agreement defendants were in contravention of (a) the New Jersey Pair Trade Act (actually denominated “Pair Sales Act”)), N. J. S. A. 56:4r-1 et seq., and (b) the regulations of the federal Civil Aeronautics Board (“C.A.B.”) as they pertain to charter flights. That agency has promulgated regulations of charter flights basically prohibiting charter flight operations such as those plaintiff artributes to defendants except where exemptions are granted by it; and plaintiff further contends on this appeal that when a travel agency so conducts itself it becomes, in effect, an indirect air carrier, and, if not certificated by the C.A.B., as defendants are not, is in violation of the Federal Aviation Act of 1958 (49 U. 8. G. A. § 1301 et seq.)

Defendants filed an answer generally denying the allegations of the complaint and setting forth separate defenses which, so far as material on this appeal, can be conveniently discussed in terms of the reasons stated by the trial court in granting the motion for summary judgment in favor of defendants and relied upon by them on this appeal.

We need not discuss in detail the contesting affidavits of the parties filed below in relation to the issue of whether Tours directs and controls the operations of Cultural Society and whether Cultural Society was formed or is operated Iona fide for purposes other than promoting travel of its members, or, to the contrary, functions for the sole purpose of promoting the travel of its members, including air travel, on a discount basis through arrangements effected by Tours. We find genuine issues of fact to be presented in those regards.

The trial court gave the following reasons for its determinations :

1. Plaintiff had no standing to bring the suit in relation to any of the causes of action pleaded because it was an unincorporated organization and any injury to plaintiff’s members was actionable only in a suit brought by them individually and not by suit of an organization.

2. Plaintiff was not entitled to sue as a third-party beneficiary of the IATA contract with Tours because not intended as a beneficiary thereof.

3. There was no cause of action under the Pair Trade Act because plaintiff was not a producer or distributor of anything, and more particularly, not of a “commodity,” within the intent of N. J. S. A. 56 :A-6.

4. No cause of action lay for redress of grievance arising out of alleged violation by defendants of regulations of the Civil Aeronautics Board since plaintiff failed to exhaust the administrative remedies provided for by the Federal Aviation Act; further, that the special expertise of the agency made prior resort to that avenue of relief appropriate and necessary. We proceed to a discussion of the issues raised.

I. — Breach of Contract

It appears clear to us, and plaintiff practically concedes, that admeasurement by a judge or jury of damages caused any of plaintiff’s members through defendant’s activities would be a practical impossibility. While it is readily understandable that in all probability competing travel agents in a given area selling air transportation at lawful rates would sustain losses through the competition of another agent selling the same market at illegally low rates, the incidence or amount of the particular damage of any one or more of plaintiff’s members would be speculative to the point of precluding a valid specific award.

Moreover, the members are not plaintiffs herein, and the actual plaintiff is in no sense an intended beneficiary of the IATA contract even if its members, are to be regarded as such. While we are hereinafter recognizing the right of organizations like plaintiff to represent their members in certain matters of collective interest, we know of no authority for permitting an organization to sue for contract damages when the parties to the contract are only the individual members of the organization in their individual capacities.

We therefore agree with the trial court in dismissing the complaint so far as based upon alleged breach of the IATA contract.

II. — Fair Trade Act

Plaintiff contends that the rates charged by airlines for air travel are governed by the Eair Trade Act and that defendants’ reduced rate practices, since contrary to the IATA agreement, violate that act and are actionable thereunder. That act provides that no contract “relating to the sale or resale of a commodity which bears * * * the trade-mark, brand, or the name of the producer or owner of such commodity” shall be deemed in violation of any Yew Jersey law by reason of inclusion therein of any of certain specified provisions. N. J. 8. A. 56:4r-5. It also provides that the willful sale or advertising of any “commodity” at less than the price stipulated in any such contract as is described in section 56 ;4-5, whether the person so advertising or offering for sale is or is not a party to the contract, is unfair competition and is actionable at the suit of the producer or distributor or of any retailer selling such commodity. N. J. 8. A. 56:4 — 6.

N. J. 8. A. 56 :4-3 defines “commodity” as “any subject of commerce.” It is quite evident, reading sections N. J. 8. A. 56:4 — 5 and 6 in pari materia, that the “commodities” in contemplation are tangible articles of the type commonly sold under a trade name or brand and not a ticket for a service such as is here involved. See Menley and James Laboratories, Ltd. v. Tornado, Inc., 90 N. J. Super. 404, 411 (Ch. Div. 1966); U. S. Time Corp. v. Grand Union Co., 64 N. J. Super. 39 (Ch. Div. 1960).

Further evidence of such statutory intent is apparent from the title of the source act, L. 1935, c. 58, “An act to protect trademark owners, distributors and the public against injurious and uneconomic practices in the distribution of articles of standard quality under a distinguished trade-mark, brand or name.” (Emphasis ours.)

"We conclude the trial court was right in finding no cause of action under the Fair Trade Act.

III. — Federal Aviation Act

There remains for consideration the question whether plaintiff projects a cause of action under the Federal Aviation Act of 1958 (49 U. 8. G. A. § 1301 et seq.). (In this regard, any relief granted herein would be only injunctive. As noted above, plaintiff’s damages are not measurable.) This breaks down into these sub-issues: (a) standing of plaintiff to sue on behalf of its members; (b) the existence of a cause of action and availability of judicial relief; (e) whether a state court possesses jurisdiction to enjoin violation of the act and regulations of the Civil Aeronautics Board, and (d) whether judicial relief should be withheld on the basis of either the doctrine of primary jurisdiction or that of exhaustion of administrative remedy.

This court, on notice to the parties, solicited an amicus brief from the C.A.B. on some of the questions implicated in the instant point, as posed by us. The C.A.B. has declined to submit a brief, but we have been tendered a memorandum by R. Tenney Johnson, Esq., General Counsel to C.A.B. (“Gen. Couns. Mem.”) We have given consideration thereto and to supplemental briefs of the parties addressed thereto. Gen. Couns. Mem. takes no position on the existence here of state court, as distinguished from federal court jurisdiction, but advises, in substance, that if plaintiffs allegations are true, (1) defendants are functioning as an “indirect air carrier” without an authorizing certificate from the C.A.B.; (2) in such case injunctive relief against violation of the act and C.A.B. regulations can be granted by a federal district court at the instance of any party in interest; (3) plaintiff is such a party in interest; (4) entertainment of the present action (assuming state court jurisdiction) would not offend any public policy underlying the Federal Aviation Act in relation to the commitment of “cease and desist” jurisdiction to the C.A.B.; (5) resolution of the instant controversy does not peculiarly call for nor would it be expedited by C.A.B. expertise and special knowledge, and (6) entertainment of judicial jurisdiction to issue an injunction would be consonant with the act and its objectives and not discordant therewith.

(a) Standing of Plaintiff to Sue.

In attacking The status of plaintiff to sue as representative of its members defendant and the trial court relied essentially upon New Jersey Bankers Ass’n v. Van Riper, 1 N. J. 193 (1948). However, the narrow view of representational standing reflected by that decision has been emphatically rejected by the Supreme Court in Orescent Pic. Tenants Ass’n v. Realty Eq. Corp. of N. Y., 58 N. J. 98, 111 (1971). We are satisfied that upon the basis of that holding and the considerations there set forth plaintiff association has standing to represent the interests of its members, as affected by the activities of defendants, in the context of an injunctive aetion such as that here presented — one implicating an important segment of the national public policy affecting New Jersey businessmen. See also N. J. Chapt., Am. I. P. v. N. J. State Bd. of Prof. Planners, 48 N. J. 581, 587-88, app. dism., cert, den., 389 U. S. 8, 88 S. Ct. 70, 19 L. Ed. 2d 8 (1967).

(b) Cause of Action and Availability of Judicial Relief.

The Federal Aviation Act of 1958 provides for enforcement of the act itself and regulations issued by the C.A.B. thereunder in two ways: (a) cease and desist orders by the agency, 49 U. S. C. A. § 1482(c); and (b), by authority of 49 U. S. C. A. § 1487(a), injunction by a federal district court at the suit of the Government on behalf of the C.A.B., or, on complaint by “any party in interest,” in the case of a violation of 49 U. S. C. A. § 1371(a). The latter section provides that “[n]o air carrier shall engage in any air transportation unless there is in force a certificate issued by the Board authorizing such air carrier to engage in such transportation.”

One not directly conducting carrier operations can be regarded as an “indirect air carrier” subject to the interdiction of section 1371(a), since 49 U. S. C. A. § 1301(3) defines an “air carrier” to include not only those persons who “directly” engage in air transportation but those who do so “indirectly” or “by lease or other arrangement.” The C.A.B. and the courts have thus deemed subject to regulation under the act as indirect air carriers any persons whose relationship to the public is such that the passengers with whom they deal are well aware that the transportation which is being offered will subsequently be provided by an airline pursuant to arrangements with such person, but where the person is not acting as an authorized agent of any airline in the consummation of arrangements between any such, airline and the passengers. See Pan American World Airways, Inc. v. C.A.B., 392 F. 2d 483, 486, 488, 495 (D. C. Cir. 1968); Monarch Travel Services, Inc. v. Associated Cultural Clubs, Inc., (unreported) C. A. No. 71-1176 (D. C. C. D. Cal. 6-4-71) (a holding directly in point on the merits of this case); Hacienda Hotels-U. S. Aircoach Enforcement Proceeding, 26 C.A.B. 372, 385 (1958); Continental Express, Inc., C.A.B. Docket 21837, Order 70-6-84 (6-12-70); American British Canadian Club, C.A.B. Docket 21840, Order 70-5-47 (5-12-70); United California Social Club, C.A.B. Docket 21841, Order 70-5-105 (5-21-70); cf. World Airways, Inc. v. Northeast Airlines, Inc., 349 F. 2d 1007 (1st Cir. 1965); Northeast Airlines, Inc. v. Nationwide Charters and Conv. Inc., 286 F. Supp. 362 (D. C. Mass. 1968), mod., 413 F. 2d 335 (1 Cir. 1969); Consolidated Flower Shipments v. Civil Aeronautics Bd., 213 F. 2d 814 (9 Cir. 1954).

Gen. Couns. Mem. has pointed out to us that the act does not preclude legitimate indirect air carrier activities. The act permits the Board to allow exemption to indirect air carriers from its requirements to such extent “as may be in the public interest,” 49 U. S. C. A. § 1301(3), and the Board has occasionally done so in relation to charter services. But defendants have been granted no such exemption.

We need not here detail the rules and regulations of the C.A.B. cited by plaintiff which indicate that, in general, and subject to exceptions and exemptions not here applicable, authorized charter flights are only those sold to groups which have a bona fide affinity prior to the particular flight and are organized and maintained independent of purposes of securing air travel for their members at reduced charter rates. As indicated above, a genuine issue of fact is here presented on the record below as to whether defendants’ activities would violate such regulations even were they certificated by the Board as indirect air carriers.

In Monarch Travel Services, Inc. v. Associated Cultural Clubs, Inc., supra, a United States District Court in California last summer enjoined activities in many respects similar to those plaintiff charges defendants to be here engaging in on the ground that the defendants were operating as indirect air carriers without a certificate and in a manner violative of C.A.B. regulations governing charter flights. The case is a direct precedent here, saving only the issue of state court jurisdiction.

Plaintiff, on the allegations in its complaint of competitive injury to its members because of defendants’ activities, is a “party in interest” entitled to maintain an action for injunction pursuant to 49 U. S. C. A. § 1487(a). Northeast Airlines Inc. v. Nationwide Charters and Conv. Inc., supra; Monarch Travel Services, Inc. v. Associated Cultural Clubs, Inc., supra. Gen. Couns. Mem. indorses the interest of plaintiff to maintain the action.

(e) Stale Court Jurisdiction.

As noted above, 49 U. S. C. A. § 1487(a) expressly confers jurisdiction on the federal district courts to enjoin violation of the act or regulations thereunder where an air carrier is operating without a certificate. The act is silent as to jurisdiction of state courts.

It is well settled that where Congress creates a federal cause of action, as it has done here, entertainment of jurisdiction by a state court internally empowered to exercise jurisdiction in a matter of that kind, in order to vindicate the federal right, is not precluded unless Congress has indicated expressly or impliedly that the jurisdiction of the federal court is to be exclusive. Dowd Box Co. v. Courtney, 368 U. S. 502, 507-508, 82 S. Ct. 519, 7 L. Ed. 2d 483 (1962); Testa v. Katt, 330 U. S. 386, 167 S. Ct. 810, 91 L. Ed. 967 (1947); Mondou v. New York, N. H. & H. R. Co., 223 U. S. 1, 56-59, 32 S. Ct. 169, 56 L. Ed. 327 (1911); Gray v. Serruto Builders, Inc., 110 N. J. Super. 297 (Ch. Div. 1970).

In Dowd Box Co. v. Courtney, supra, involving section 301(a) of the Labor Management Eelations Act of 1947, which vests jurisdiction in the federal district courts (not mentioning state courts) over suits for violation of collective bargaining agreements, the court had before it the question whether the courts of Massachusetts 'had jurisdiction to enjoin the violation of such a contract by an employer. Although recognizing that the labor act had created new federal substantive law in this area (Textile Workers Union v. Lincoln Mills, 353 U. S. 448, 77 S. Ct. 912, 1 L. Ed. 2d 972 (1957)), the court nevertheless held that Congress did not intend to oust the state courts of jurisdiction to restrain breach of such contracts. It said :

It lias not been argued, nor could it be, that § 301(a) speaks in terms of exclusivity of federal court jurisdiction over controversies within the statute’s purview. On its face § 301(a) simply gives the federal district courts jurisdiction over suits for violation of certain specified types of contracts. The statute does not state nor even suggest that such jurisdiction shall be exclusive. It provides that suits of the kind described ‘may’ be brought in the federal district courts, not that they must be. [368 U. S. at 506, 82 S. Ct. at 522]

Further:

We start with the premise that nothing in the concept of our federal system prevents state courts from enforcing rights created by federal law. Concurrent jurisdiction has been a common phenomenon in our judicial history, and exclusive federal court jurisdiction over cases arising under federal law has been the exception rather than the rule. This Court’s approach to the question of whether Congress has ousted state courts of jurisdiction was enunciated by Mr. Justice Bradley in Claflin v. Houseman, 93 U. S. 130, 23 L. Ed. 833, and has remained unmodified through the years. “The general question, whether State courts can exercise concurrent jurisdiction with the Federal courts in cases arising under the Constitution, laws, and treaties of the United States, has been elaborately discussed, both on the bench and in published treatises . . . [and] the result of these discussions has, in our judgment, been ... to affirm the jurisdiction, where it is not excluded by express provision, or by incompatibility in its exercise arising from the nature of the particular case.” [Citing eases; at 507-508, 82 S. Ct. at 522]

Anticipating the holding in Dowd Box was the comprehensive opinion of Justice Traynor in McCarroll v. Los An geles County Dist. Coun. of Car., 49 Cal. 2d 45, 315 P. 2d 322 (Sup. Ct. 1957).

In Mondou v. New York, N. H. & H. R. Co., supra, three actions had been brought in different state courts for recovery of damages under the Federal Employers’ Liability Act enacted in 1908 and amended in 1910. The 1908 act did not specify the courts having jurisdiction but the 1910 amendment gave jurisdiction to the United States circuit courts (then courts of original jurisdiction) and stated such jurisdiction should be “concurrent with that of the courts of the several states.” In each case the accident and institution of the action preceded the adoption of the amendment. One state court refused to accept jurisdiction; the others did not. The court held the state courts were required to accept jurisdiction. In so ruling it quoted from the leading ease of Claftin v. Houseman, 93 U. S. 132, 136, 23 L. Ed. 833 (1876) (which was also quoted in the excerpt quoted above from Dowd, Box Co. v. Courtney, supra) as follows:

‘Tlie laws of the United States are laws in the several states, and just as much binding on the citizens and courts thereof as the state laws are. The United States is not a foreign sovereignty ns regards the several states, but is a concurrent, and, within its jurisdiction, paramount, sovereignty ... If any act of Congress gives a penalty [meaning civil and remedial] to a party aggrieved, without specifying a remedy for its enforcement, there is no reason why it should not be enforced, if not provided otherwise by some act of Congress, by a proper action in a state court. The fact that a state court derives its existence and functions from the state laws is no reason why it should not afford relief; because it is subject also to the laws of the United States, and is just as much bound to recognize these as operative within the state as it is to recognize the state laws. The two together form one system of jurisprudence, which constitutes the law of the land for the state; and the courts of the two jurisdictions are not foreign to each other, nor to be treated by each other as such, but as courts of the same country, having jurisdiction partly different and partly concurrent. ... It is true, the sovereignities are distinct, and neither can interefere with the proper jurisdiction of the other, as was so clearly shown by the Chief Justice Taney, in the ease of Ableman v. Booth, 21 ITow. 506, 16 t. Ed. 169; and hence the state courts have no power to revise the action of the Federal courts, nor the Federal the state, except where the Federal Constitution or laws are involved. But this is no reason why the state courts should not be open for the prosecution of rights growing out of the laws of the United States, to which their jurisdiction is competent, and not denied,’ [223 U. S. at 57-58, 32 S. Ct. at 178; emphasis ours]

The Mondou court rejected the argument that the 1908 act was intended tos restrict jurisdiction to the federal courts, or that such intent could be derived from the 1910 amendment affirmatively granting state courts concurrent jurisdiction. The court held that the original act contained nothing indicative of such intent, and it referred to the general jurisdictional act giving the circuit courts original cognizance, concurrent with those of the states, of all suits of a civil nature at common law or in equity when the amounts in controversy exceeded a stated sum, “arising under the Constitution or laws of the United States” (emphasis by the Supreme Court). 223 U. S. at 56, 32 S. Ct. at 177, 56 L. Ed. 327. As to the 1910 amendment, the court said: “The amendment, as appears by its language, instead of granting jurisdiction to the state courts, presupposes that they already possessed it.” Ibid.

To be contrasted with the jurisdictional language of 49 Z7. S. C. A. § 1487(a) is that of the Securities and Exchange Act of 1938 (15 U. S. C. A., § 78 aa) which gives the federal courts “exclusive jurisdiction of violation of this chapter or the rules and regulations thereunder and of all suits in equity and actions at law brought to enforce any liability or duty created by this chapter or the rules and regulations thereunder.” There, of course, Congress has expressly precluded state court jurisdiction. Gallo v. Mayer, 50 Misc. 2d 385, 270 N. Y. S. 2d 295, 299 (Sup. Ct. 1966), aff'd 272 N. Y. S. 2d 1007, 26 A. D. 2d 773 (App. Div. 1966); cf. Trad v. Modes, 72 N. J. Super. 306 (Law Div. 1962).

Putting to one side questions of primary jurisdiction or exhaustion of administrative remedies, discussed later herein, we find no evidence in the Federal Aviation Act as a whole, or in 49 U. S. C. A. § 1487(a) thereof, to support the notion of congressional intent to disturb, in a case such as this, the ordinary presumption that state courts have general concurrent jurisdiction with federal courts to enforce federal law at the suit of an aggrieved citizen, or “party in interest,” as § 1487(a) puts it. Note, moreover, that 49 U. 8. O. A. § 1506 provides: “Nothing contained in this act shall in any way abridge or alter the remedies now existing at common law or by statute, but the provisions of this act are in addition to such remedies.” (Emphasis ours)

We see nothing in the special competence of federal district courts, as compared with our own courts of general equity jurisdiction, to justify a belief that Congress thought the former so peculiarly apt in the resolution of the question as to what constitutes an air carrier that they alone, and not state courts, should exercise the judicial jurisdiction expressly created by § 1487(a) to enjoin the (indirect) air carrier function where not accompanied by possession of a C.A.B. certificate. The issue of state court jurisdiction in this area is not affected by the consideration of agency expertise since federal courts have been specifically vested with jurisdiction, and there is no reason to deem them more expert as to such a question than state courts. This, particularly, since the substantive questions requiring adjudication boil down basically, as noted earlier herein, to the fact issues as to (a) whether Cultural Society was formed and functions bona fide as an affinity group for purposes other than and independent of the purpose of providing its members air travel at reduced charter rates, and (b) whether Tours and Cultural Society, or either, is arranging charter air travel for the public other than as agents of airlines — fact issues of a kind familiar to and within the ready competence of state courts equally with federal courts. Cf. Northeast Airlines, Inc. v. Weiss, 113 So. 2d 884 (Fla. D. C. App. 1959), cert. den. 116 So. 2d 772 (Ela. Sup Ct. 1959).

We conclude the Chancery Division had jurisdiction insofar as the cause of action for injunction rests upon § 1487 (a) of Title 49.

(d) Primary Jurisdiction and Exhaustion of Administrative Remedy.

The doctrine of primary jurisdiction is that which determines whether the administrative agency rather than the court should make the initial decision in a ease where the agency is given statutory jurisdiction to afford the same remedy. 3 Davis, Administrative Law, §19.01 at 3 (1958). The doctrine of exhaustion bears upon the question as to the stage of completion or lack of completion of administrative action which determines appropriateness of grant of judicial relief. Id., § 30.01 at 57. Erom that approach the present case suggests a primary jurisdiction rather than exhaustion problem since there was no pending agency proceeding when this suit was instituted.

Prima facie, there is no violation of the primary jurisdiction doctrine here since the action is not one to determine a rate or rule or the reasonableness thereof, or a close question as to the meaning of an administrative rule lying within agency expertise, but simply one to enjoin a prohibited departure from a rule or practice of already well-defined meaning. See 3 Davis, op. cit. § 19.03 at 8-9; Pennsylvania R. Co. v. International Coal Min. Co., 330 U. S. 184, 33 S. Ct. 893, 57 L. Ed. 1446 (1913); Civil Aeronautics Board v. Modern Air Transport, 179 F. 2d 633 (2 Cir. 1950) ; World Airways, Inc. v. Northeast Airlines, Inc., supra (349 F. 2d at 1010-1011); Northeast Airlines, Inc. v. Weiss, supra; cf. Trans-Pacific Airlines v. Hawaiian Airlines, 174 F. 2d 63, 66 (9 Cir. 1949). Gen. Couns. Mem., discussed above, while of course not binding on us, is persuasive that no special agency expertise exists with respect to the fairly narrow substantive questions here requiring factual adjudication and that no other consideration calls for abnegation of jurisdiction here on the basis of the doctrine of primary jurisdiction.

To the extent that the doctrine of exhaustion is sometimes considered in terms of the criteria of that of primary jurisdiction, what we have said above applies here also in connection with the argument for postponement of judicial relief on exhaustion grounds. We add that Gen. Couns. Mem. also supports acceptance of judicial jurisdiction here as against any exhaustion consideration. That document, in addition to our summary of some of its conclusions above, also answers in the affirmative our question, “Whether the workload or other exigencies of the C.A.B. are such that the filing with it of a complaint of this kind would entail substantial delay before adjudication?” Such procedures were described as “time-consuming” in World Airways, Inc. v. Northeast Airlines, Inc., supra (349 F. 2d 1010).

In Northeast Airlines, Inc. v. Weiss, supra, a state court accepted jurisdiction of an action for damages by an airline against an airport for charging discriminatory airport fees contrary to C.A.B. regulations. The court found the doctrine of primary jurisdiction not applicable, not deeming the question presented to call for agency expertise or considerations of uniformity of application (113 So. 2d at 888). But the court declined jurisdiction to enjoin the discriminatory activity on the “exhaustion” theory that the agency could order the defendant to cease and desist. This seems dubious on principle. In any event, however, the ruling is distinguishable in the present context as the violation there did not implicate a statutory provision affirmatively authorizing judicial injunctive relief, as does § 1487(a) in relation to the activity of the defendants here. Cf. Wills v. Trans World Airlines, Inc., 200 F. Supp. 360 (D. C. S. D. Cal. 1961).

It will be recalled that the California federal court in Monarch Travel Services v. Associated Cultural Clubs, supra, granted injunctive relief precisely parallel with that sought here, with apparent unconcern over the doctrines either of primary jurisdiction or exhaustion of administrative remedy.

We conclude that the judgment under review was correct insofar as plaintiff sought damages for breach of contract or for violation of the Pair Trade Act but that it should be reversed to the extent that the complaint as expanded in scope on this appeal is based on the claim for injunctive relief under the Eederal Aviation Act.

Reversed and remanded for further proceedings consistent with this opinion. Costs to abide the event.

      The memorandum is not submitted as necessarily representing the views of the C.A.B. but only those of General Counsel.

      Altliough this ground of jurisdiction was not specified in the amended complaint it has been fully argued on this appeal, without prejudice to defendants, and we conclude we should consider it in order to decide the merits of the matter — a subject of substantial public importance. The complaint may be amended accordingly.


author: Stamler, J. S. C.

text:
    NEW JERSEY STATE BAR ASSOCIATION, A CORPORATION OF THE STATE OF NEW JERSEY, PLAINTIFF, v. NEW JERSEY ASSOCIATION OF REALTOR BOARDS, A CORPORATION OF THE STATE OF NEW JERSEY, ET AL., DEFENDANTS.
    Superior Court of New Jersey Chancery Division
    Decided January 25, 1972.

      Mr. Emanuel Honig for plaintiff.

      Mr. Arthur M. Greenlaum for defendants (Messrs. Greenlaum, Greenlaum, Bowe & Smith, attorneys.)
   Stamler, J. S. C.

Defendant New Jersey Association of Realtor Boards (hereinafter “Realtors”) moves for an order disqualifying the Chancery Division judge in Yicinage 2 “and other judges of the State of New Jersey similarly situated from hearing this cause, pursuant to B. 1:12-2 and the general inherent equitable powers of the court, on the ground of the existence of bias and prejudice precluding a fair hearing and judgment or on the ground that defendants and the general public might reasonably believe that there exists such bias and prejudice; and appointing an impartial panel of lay arbitrators to hear and decide this cause.”

Defendant, on oral argument, defined “similarly situated” to embrace all' trial and appellate judges, including the Chief Justice and Associate Justices of the Supreme Court of New Jersey and the Chief Justice of the United States and the Associate Justices of the Supreme Court of the United States.

The Supreme Court in State v. Bander, 56 N. J. 196 (1970), said:

This opinion is not to be understood to mean that what defendant here did, does not constitute the px-actice of law or that such conduct by one not a member of the Bar of this State is authorized or condoned by this Court. The question of whether defendant’s acts amounted to the unauthorized practice of law was partially explored at the oral argument of the matter sub judiee. It developed that the problem has so many ramifications that it could not be intelligently considered on the present record. As to that issue it is suggested that an answer might be obtained in a separate suit for an injunction against the type of acts undertaken by defendant or for a declaratory judgment. In this manner a complete and detailed record could be made disclosing, inter alia, the extent, length of existence, effect and result of the performance of similar acts by real estate brokers generally and the public need for such sex-vice. The Court could then give a valued and intelligent reply to such an inquiry. [At 202; emphasis supplied]

On August 20, 1971 plaintiff New Jersey State Bar Association (hereinafter “Bar”) filed a class action against Realtors demanding injunctive relief from acts of defendants alleged to constitute the practice of law, preparing or executing legal instruments or arguments, advising third persons on legal questions, and declaring what services, conduct or practices constitute the practice of law. Plaintiff further requests the promulgation of court rules to prevent what is alleged to be the unlawful practice of law by realtors. An answer was filed and shortly thereafter came this motion.

Although there are many cases which consider the dis^qualification of individual judges for prejudice or bias, the relief here sought by defendants is without precedent, with possibly one exception. In Alamo Title Co. v. San Antonio Bar Ass’n, 360 S. W. 2d 814 (Tex. Civ. App. 1962), a local bar association sought to enjoin a title insurance company from preparing certain legal instruments in real estate transactions. There the attack was directed at the trial judge. The court said:

It is insisted the trial judge was disqualified because of membership in the State Bar of Texas, a party to the suit. The contention is overruled. Art. 5, Sec. 7 Texas Constitution, Vernon’s Ann St.; Art. 320a-l, Sec. 3, Vernon’s Ann. Tex. St.; Hidalgo County Water Improvement Dist. No. 2 v. Blalock, 157 Tex. 206, 301 S. W. 2d 593, 597. To sustain it would be to hold no State tribunal could exist in this case. Equity will not suffer a wrong to be without a remedy. [At 817]

Within the scope of the present disqualification motion are appellate judges at all levels, state and federal. Defendants suggest a “tribunal” of lay arbitrators, from whose decision there could be no appeal to any other forum.

In this controversy there is an encounter between two professions. In the final analysis the resolution must be based solely on consideration of the public need and interest rather than the parochial interests of either party. With this as the polestar, on this motion there is no necessity to review the history of the conflict between the two groups. This may be relevant when the matter is ultimately considered on the merits somewhere by a judge or other duly appointed adjudicators. The motion only requires a determination of disqualification of all judges and the propriety of appointing a lay board in substitution.

To ask a trial court to order the disqualification of the Chief Justice of the United States and the Chief Justice of Dew Jersey truly boggles the mind. The judicial oath taken by this court does not permit it to shrink in fear or alarm. The motion must be decided. It cannot be avoided.

It is not asserted that any one judge is more,or less disqualified than any other. Defendants make no direct allegation of bias or prejudice directed at this court or at any specific judge or judges. All are said to be contaminated in the same way: All Dew Jersey judges are required by our Constitution (N. J. Oonst. (1947), Art. YI, § YI) to have been admitted to the bar; therefore, say the realtors, some of its members and the public generally might reasonably believe that there is an appearance of impropriety.

R. 1:12-1 (f) provides:

Cause for Disqualification; On the Court’s Motion
The judge of any court shall disqualify himself on his own motion and shall not sit in any matter, * * * when there is any * * * reason which might preclude a fair and unbiased hearing and judgment, or which might reasonably lead * * * the parlies to believe so.

The Canons of Judicial Ethics adopted by the American Bar Association (N. J. Court Rules (1969), Appendix to Part I (1971)), and expressly applicable to all judges of this state (R. 1:14), state in pertinent part:

Avoidance of Impropriety
A judge’s official conduct should be free from impropriety and the appearance of impropriety * * *. [Canon 4]
Kinship or Influence
A judge * * * should not suffer his conduct to justify the impression that any person can improperly influence him or unduly enjoy his favor, or that he is affected by the kinship, rank, position or influence of any party or other person. [Canon 13]

The concept of the rule of law is grounded in the confidence of the public as well as litigants in our legal system and the reasonableness of its rules, and in the ability of its judiciary to render fair, just and impartial determinations. In State v. Deutsch, 34 N. J. 190 (1961) the Supreme Court of New Jersey has stated:

It is vital that justice be administered not only with a balance that is clear and true but also with such eminently fair procedures that the litigants and the public will always have confidence that it is being so administered. See Frankfurter, J., in Offutt v. United States, 348 U. S. 31, 14, 75 S. Ct. 11, 13, 99 L. Ed. 11, 16 (1954) : ‘justice must satisfy the appearance of justice.’ To that end judges must refrain * * * from sitting in any causes where their objectivity and impartiality may fairly be brought into question * * *
[T]here is a significant trend * * * towards recognition of a basis for disqualification where, in the eyes of the litigants and the public, the circumstances call justly for the judge’s withdrawal.
‘The proper administration of justice, and respect for the courts, depend * * * upon the intrinsic integrity, fairness and impartiality of the judges, * * *. [X]t is * * * their duty to scrupulously refrain from sitting in any case, or under any circumstances, which might reasonably tend to give rise to doubt or suspicion as to their complete disinterestedness.’ * * *
* * * ‘human frailty is not always overcome by trained judicial habits of impartiality’ * * * ‘It is imperative we maintain the confidence of the public in our system of justice * * *’ [At 206-209; citations omitted; emphasis supplied]

Defendants rely heavily upon Summer v. Teaneck Tp., 53 N. J. 548 (1969). There the Supreme Court considered a situation in which an administrative agency comprised of members of a certain profession was authorized by law to regulate that profession and, at the same time, act as a guardian of the public interest. In that case Chief Justice Weintraub said:

* * * a commission recruited exclusively from the membership of a profession or occupation is hardly the appropriate guardian of the whole public interest. It is one thing thus to enable an interested group to elevate the standards of fitness and performance in its specialty. It is something different to depend upon the interested group to give the public * * * protection. [At 557]

That case is readily distinguishable. There the court was describing the obligations of an administrative board created by the legislative branch and appointed by the executive. Here we are concerned with a branch of government created by the Constitution of New Jersey. Art. IY, § I vests the judicial power of the State in the courts. Art. YI, § II provides that the Supreme Court shall exercise appellate jurisdiction in all causes encompassed in the Constitution. This repose of judicial responsibility is an attribute of sovereignty. James H. Rhodes & Co. v. Chausovsky, 137 N. J. L. 459 (Sup. Ct. 1948). It is immune from legislative change. Frank v. Juvenile and Domestic Relations Court, 137 N. J. L. 364 (Sup. Ct. 1948).

It would be a simple solution to retreat from judicial responsibility and ask others to undertake this important constitutional obligation. The judicial oath solemnly promises that a judge or justice of our courts will support the Constitutions of this State and of the United States and that he will perform his judicial duties faithfully, impartially and justly, to the best of his ability.

There is a constitutional limitation upon the right or duty of judges to disqualify themselves. Disqualification must yield to necessity where to disqualify would destroy the only tribunal in which relief could be had and thus preclude determination of the issue. In such case it has been held, consistently, the court must act no matter how disagreeable its task may be. Traction Co. v. Board of Public Works, 56 N. J. L. 431 (Sup. Ct. 1894); Zober v. Turner, 106 N. J. L. 86 (E. & A. 1930); Shibla v. Township Committee of Wall Tp., 136 N. J. L. 506 (Sup. Ct. 1948), aff’d 137 N. J. L. 692 (E. & A. 1948). In other jurisdictions, the same principle has been enunciated. See: Evans v. Gore, 253 U. S. 245, 40 S. Ct. 550, 64 L. Ed. 887 (1919); Marquette Cement Mfg. Co. v. Federal Trade Comm’n, 147 F. 2d 589 (7 Cir. 1945) ; Moulton v. Byrd, 224 Ala. 403, 140 So. 384 (Ala. Sup. Ct. 1932); Federal Construction Co. v. Curd, 179 Cal. 489, 177 P. 469 (Cal. Sup. Ct. 1918); Wheeler v. Fargo Consolidated School Dist., 200 Ga. 323, 37 S. E. 2d 322 (Ga. Sup. Ct. 1946); State ex rel. Mitchell v. Sage Stores Co., 157 Kan. 622, 143 P. 2d 652 (Kan. Sup. Ct. 1943); State ex rel. Gardner v. Holm, 241 Minn. 125, 62 N. W. 2d 52 (Minn. Sup. Ct. 1954); State ex rel. Null v. Polley, 34 S. D. 565, 138 N. W. 300 (S. D. Sup. Ct. 1912); Alamo Title Co. v. San Antonio Bar Ass’n, supra.

As the court stated in Traction Co. v. Board of Public Works, supra:

This rule which excludes the interested judicial officer is subject to one exception. This exception arises when there is no one else to perform the duty, for it is clear that, while the performance of a judicial duty by an interested officer may occasion a failure of justice, yet it is equally clear that the disqualification of the only person who can adjudicate strips suitors of their ability to pursue their legal rights at all, and so must result in a failure of justice. [56 N. J. L. at 439]

Chief Justice Marshall in Cohens v. Virginia, 19 U. S. (6 Wheat.) 264, 5 L. Ed. 257 (1821), in expressing his concept of the judicial obligation and judicial power said:

It is most true that this court will not take jurisdiction if it should not; but ilt is equally true, that it must take jurisdiction if it should. The judiciary cannot, as the legislature may, avoid a measure because it approaches the confines of the constitution. We cannot pass it by because it is doubtful. With whatever doubts, with whatever difficulties, a case may be attended, we must decide it if it be brought before us. We have no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given. The one or the other would be treason to the constitution. Questions may occur which we would gladly avoid, but we cannot avoid them. All we can do, is to exercise our best judgment, and conscientiously to perform our duty. [At 404]

It may be some comfort to describe to tbe fearful realtors ■what lawyers, including members of plaintiff association, believe is the shortest interval of time known to man: that fleeting moment when a lawyer takes his oath as a judge and immediately forgets that he was ever a lawyer.

If it is assumed that the broad disqualifying order could be entered notwithstanding the suggestion in Bander, supra, where then would parties have their differences resolved? If the courts are powerless to perform the judicial function, disputes may be decided in the streets by picketing, chanting and shouting to express disagreement, letting the loudest or most vociferous be the decision makers. The realtors do not want this but do suggest a junta of laymen appointed by this court. They suggest that the power to make such appointments and to require binding arbitration may be found in B. 1 :l-2, which provides:

Construction and Relaxation
The rules in Part I through Part VII, inclusive, shall be construed to secure a just determination, simplicity in procedure, fairness in administration, and the elimination of unjustifiable expense and delay. Unless otherwise stated, any rule may be relaxed or dispensed with by the court in which the action is pending if adherence to it would result in an injustice. In the absence of rule, the court may proceed in any manner compatible with these purposes. [Emphasis added]

It is the last sentence to which defendants direct attention. No other authority is cited.

This rule does not give any substance to the suggestion of defendants. It may permit "construction” or "relaxation” of the rules of court. However, the return to even a semblance of undesirable "special master” procedures is not only abhorrent to our court rules but would be an attempt by the courts to abdicate the judicial responsibility imposed by our Constitution. The Constitution does not permit this court to decline to exercise the judicial function or to delegate it elsewhere.

No matter what theory of judicial disqualification is advanced, there can be no disqualification of the entire judicial system. To do otherwise would contravene and erode our Constitution.

Motion denied.


author: Per Curiam.

text:
    JOSEPH F. SHANAHAN, PLAINTIFF-APPELLANT, v. NEW JERSEY STATE BOARD OF EDUCATION; CARL L. MARBURGER, COMMISSIONER OF EDUCATION FOR STATE OF NEW JERSEY; NORMAN A. GATHANY, SUPERINTENDENT OF SCHOOLS FOR HUNTERDON COUNTY, AND SOUTH HUNTERDON REGIONAL HIGH SCHOOL BOARD OF EDUCATION, DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued January 31, 1972
    Decided January 31, 1972.

      Before Judges Collestee, Mesítz and Ltiích;.

      Mr. Joseph F. Shanahan argued the cause pro se.

      Mr. Lewis M. Popper, Deputy Attorney General, argued the cause for respondents {Mr. George F. Kugler, Jr., Attorney General for New Jersey, attorney).
   Per Curiam.

This is an appeal by plaintiff from a ruling of the Hunterdon County Superintendent of Schools refusing to permit plaintiff to inspect and copy the poll lists of voters who voted in the February 2, 1971 election for members of the South Hunterdon Eegional High School Board of Education.

Plaintiff is a candidate for election to the board of education of the regional high school, which election will be held on February 1, 1972. On January 4, 1972 he applied at the office of the Hunterdon County Superintendent of Schools to inspect and copy the poll lists of voters who voted at the election for members of the board of education on February 2, 1971. His application was refused. Thereafter, on the same day, he communicated with the office of the state commissioner of education and was informed that the ruling of the county superintendent of schools was based on a prior decision of the State Board of Education.

Plaintiff filed a complaint in lieu of prerogative writs in the Superior Court, Law Division, for a judgment (a) compelling defendant county superintendent of schools to permit plaintiff to inspect and copy the election poll lists, (b) compelling defendant state commissioner of education “to permit others similarly situated to the plaintiff throughout the State to inspect and copy pertinent election poll lists,” and (c) “restraining, if necessary, the holding of school board elections throughout the State until this matter is adjudicated.” He alleged that he was entitled to inspect the poll lists under the provisions of the Right to Know Law, N. J. 8. A. 47:1A-1 et seq. On January 21, 1972, the Superior Court ruled that it lacked jurisdiction of the subject matter and ordered that the complaint be transferred to this court pursuant to R. 1:13-4.

We scheduled oral argument on an accelerated basis in view of the emergent nature of the case. We think the Law Division had jurisdiction to hear and determine the issue raised in the complaint. W. J. S. A. 47 :lA-4. However, that point has not been raised and we will proceed to decide the case on the merits.

The Right to Know Law, N. J. 8. A. 47:1A-1 H seq., declares it to be the public policy of this State that public records shall be readily accessible for examination by citizens of this State, with certain exceptions, for the protection of the public interest. One of the exceptions is where the examination of the record is governed by another statute. N. J. 8. A. 47 :lA-2.

N. J. 8. A. 18A: 14-61 and 62, which pertain to elections of members of a board of education, provide that immediately following an election the poll lists, ballots and tally sheets shall be placed in a sealed package and delivered to the secretary of the board of education. The secretary shall, within five days after the date of the election, forward the sealed package to the county superintendent who shall preserve the records for one year.

We conclude that N. J. 8. A. 18A:1A-61 and 62 clearly fall within the meaning of “any other statute,” one of the exceptions set forth in the Eight to Know Law. The legislative requirement that the poll lists shall be sealed and retained for one year implicitly bars a public inspection of such records, in the absence of a claim of irregularity in the election. No such claim is advanced by plaintiff. He admittedly seeks to obtain the names and addresses of persons who voted in the 1971 election to solicit their support for his candidacy in the 1972 election.

The complaint in lieu of prerogative writs is dismissed.


text:
    IN THE MATTER OF NEWARK TEACHERS UNION, LOCAL 481 AMERICAN FEDERATION OF TEACHERS AFL-CIO, AN UNINCORPORATED ASSOCIATION, DEFENDANT CHARGED WITH CONTEMPT OF COURT. CAROLE GRAVES (AND 15 OTHERS), CHARGED WITH CONTEMPT OF COURT.
    Superior Court of New Jersey Appellate Division
    Argued January 10, 1972
    Decided February 8, 1972.

      Before Judges Sullivan, Leonard and Carton.

      Mr. Morton Stavis and Mr. Morris Stern argued the cause for appellants (Mr. Paul J. Oiblin and Mr. Morton Stavis, attorneys).

      Mr. B. Benjamin Cohen, Assistant Prosecutor, argued the cause for respondent (Mr. Joseph P. Lordi, Essex County Prosecutor, attorney; Mr. David Noah Dubrow of counsel and on the brief).
   Per Curiam.

During the 1971 Newark teachers strike which commenced February 2, 1971 and lasted until April 8, 1971, defendants were charged with contempt in that they willfully violated a final judgment of the Superior Court entered on February 27, 1970 which permanently enjoined the Newark Teachers Union, Local 481, its members, officers and directors, including certain named individuals, from participating in any strike, work stoppage, picketing, etc., against the Board of Education of Newark.

Hearings were held on the charges of contempt. At the conclusion thereof the trial court found in essence that each defendant had actual knowledge of the terms and conditions of the final judgment of February 27, 1970 but had nevertheless intentionally and deliberately participated in the 1971 strike activities and was guilty of the contempt charged. A fine, which ultimately amounted to $270,000, was imposed on the union. Twelve of the 15 individuals received six-month jail sentences and fines of $500. Defendant Fiorito, who was convicted of two separate contempts during the 1971 strike, was sentenced to two consecutive six-month jail terms and fined a total of $1,000. Defendants Bizzaro and Del Grosso received three-month terms and fines of $250.

IVe have carefully reviewed the entire record of proceedings de novo, and reach the following independent findings and conclusions as to guilt and punishment.

It is clear that each defendant had actual knowledge of the terms and provisions of the February 27, 1970 final judgment. That judgment in clear language manifested the intention of the court to prohibit participation in future strikes as well as the one then recently in progress. That that interpretation was not inadvertent is evidenced by the colloquy between the court and counsel for defendants at the time it was entered. The entry on February 3, 1971 of the cease and desist order and its subsequent service on the union and various individual defendants, further emphasized and brought home to them the fact that the injunction was intended to apply to the 1971 strike. Nevertheless, they continued to defy its mandate. Thus, each of the defendants willfully and knowingly violated its terms by actually supporting and participating in the 1971 strike and is guilty of contempt. The record also establishes Fiorito’s guilt of two separate contempts.

Defendants contend that regardless of their knowledge concerning its scope, the injunction was unconstitutional because (1) it was overbroad in that it barred future strikes, and (2) they were not given a hearing on the enforceability of the injunction where they might present new evidence. Both arguments are without merit.

We recognize that in the sensitive area of labor disputes the scope of the injunction should be carefully tailored to the factual situation from which the litigation sprang. Otherwise such injunctive orders may become overbroad or stale in their application to a later strike. Consequently, the better practice is for the employer to seek fresh relief. Thus, in the present case, when the 1971 strike materialized, it would have been better practice to file a new complaint with supporting affidavits setting forth the new factual situation and on this basis to seek a new injunction. However, we conclude that the 1970 final judgment, entered less than a year before the 1971 strike against the same union and its members, officers and directors, was efficacious in the particular circumstances here presented.

Defendants contend that they were entitled to a hearing on the enforceability of the injunction where they could present evidence that, in the negotiations for a new contract, the board of education was not bargaining in good faith and was using a strategy of forcing the teachers to strike so that they would lose public support.

If this was the board’s plan it was reprehensible. However, assuming there was some basis for the teachers’ contention, that was no excuse to violate the final judgment of February 27, 1970. The matter was not between private parties where issues of clean hands and good faith would be material. It concerned a public school system, and the continuecL public interest in having the schools remain open and the children educated.

As wo have already noted, defendants had actual knowledge that the 1970 injunction was deemed applicable to the 1971 strike. If defendants intended to challenge its applicability to the 1971 context and, more specifically, to assert that a new situation had arisen with respect to the bargaining negotiations under the new contract, their remedy was to apply to the court to make that challenge before violating the outstanding injunction and to seek the court’s assistance in requiring the board to negotiate in good faith. They were not free to defy the court order and take the law in their own hands. Walker v. Birmingham, 388 U. S. 307, 87 S. Ct. 1824, 18 L. Ed. 2d 1210 (1967).

We are satisfied from all of the proofs that defendant James Lerman was the individual identified as being on strike and in the picket line shown on photographic exhibit P-4.

We turn to the fines and jail sentences imposed by the trial court. It is clear that those participating in the 1971 strike have had brought home directly and emphatically the disastrous consequences of their illegal strike activity. However, of the 15 individual defendants herein, ten of them were also convicted of contempt in the 1970 strike proceedings. The union, of course, was also convicted in both the 1970 and 1971 contempt proceedings. We concur in the sentence imposed on the union by the trial court and adopt it as our own. Accordingly, a fine of $270,000 is hereby imposed on appellant Newark Teachers Union. Defendants Nicholas, Graves, Lasus, Lerman, Tur, .Kirsehbaum, Zimmer, Watkins and Washington, who were also convicted of contempt in 1970, are each hereby sentenced to three months in the Essex County Penitentiary and fined $500. Defendants Dasher, Koplin and Volpe, who, as officers of the union, were specifically named in the February 27, 1970 final judgment, are each hereby sentenced to three months in the Essex County Penitentiary and fined $500. Appellant Eiorito, who has been found guilty of two separate contempts during the 1971 strike and was also convicted of contempt during the 1970 strike, is hereby sentenced to a term of three months in the Essex County Penitentiary and fined $500 on each contempt. The jail terms hereby imposed on him run consecutively. His sentence will aggregate six months in jail and a total fine of $1,000. Defendants Bizzaro and Del Grosso are each hereby sentenced to one month in the Essex County Penitentiary and fined $250. Each individual defendant is placed on probation for one year. The only condition will be that the person refrain from participating in any illegal activity, including but not limited to striking or work stoppage in connection with his or her employment by the board of education.

It is unfortunate that resort must be had to contempt of court procedure in this type of situation. Jailing teachers is not the answer to school strikes. The solution is legislative. Public emploj’-ees have the right to bargain collectively as to the terms and conditions of their employment but cannot do so on equal terms with their employment unit since they have no means of negotiating from a position of strength. If the present policy prohibiting strikes by public employees is to be continued, machinery for the compulsory settlement of deadlocked labor disputes involving public employees should be established. Eor a discussion of the problem and suggestions as to possible alternatives, see Comment, “Alternatives to the Strike in Public Labor Relations,” 85 S,atv. L. Rev. 459 (Dec. 1971).

Judgment accordingly.