text:
    FIRST COUNTY NATIONAL BANK AND TRUST COMPANY, NOW BY MERGER NATIONAL BANK AND TRUST COMPANY OF GLOUCESTER COUNTY, PLAINTIFF-APPELLANT, v. ANTHONY L. CANNA, ANNE B. CANNA AND MICHAEL DIODATO, DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Submitted April 30, 1973
    Decided May 30, 1973.

      Before Judges Lora, Allcorn and Handler.

      Messrs. Granite and Chell, attorneys for appellant.

      Mr. Samuel G. DeSimone, attorney for respondents (Mr. P. Jeffrey Wintrier, on the brief).
   Per Curiam.

In 1969 plaintiff brought suit against defendant Michael Diodato, and on November 18, 1970 judgment was entered in favor of plaintiff and against Diodato for $2,402.65.

Between the time of commencement of said action and the entry of judgment therein defendant Anthony L. Canna claims to have loaned to Diodato (his brother-in-law) the sum of $2,200 to enable the latter to purchase a used Cadillac automobile. The loan was all in cash — defendant Anna B. Canna, the wife of Anthony and the sister of Diodato, testified that she “gave the money to my husband, be gave it to my brother.”

According to the testimony of Anthony Canna, the entire transaction was consummated on February 28, 1970; the parties had no legal advice and simply “worked [the] . . . papers up” themselves. Diodato executed a handwritten promissory note, dated February 28, 1970, in the following form:

I, Michael Diodato, promise to pay $2,200.00 which was loaned to me for the purchase of a 1968 Cadillac, Serial #A-B8135760 Z, to be paid to Anthony L. Canna within 3 years time of above date.

There was no provision for the payment of interest. The note bore the signature of Diodato, as well as that of a notary public. There was no jurat or other attestation by the notary, although it did bear his seal and the notation “2/28/70” alongside his signature. The notary was present and signed the note because Canna “felt this was the best way to do it.”

Canna testified further that, following the execution of the note, both he and Diodato proceeded to the “division of motor vehicles” where a new title certificate to the Cadillac was issued in the name of Diodato as owner, and designating Anthony L. Canna as “secured party”. No instruments or papers other than the note and the title certificate appear to have been drawn or signed by any of the parties with regard to the transaction of February 28, 1970.

An additional loan of “around $900” was claimed by Canna to have been made by him to Diodato in April, 1970. Another handwritten promissory note signed by Diodato, dated April 15, 1970, and bearing the signature of the same notary public, stated:

I, Michael Diodato promise to pay an additional $900.00, for personal expense, which will be added to the $2,200.00 original loan on a 1968 Cadillac, Serial #A-B8135760 Z, making the total amount of $3,100.00 to be paid within 3 years time of the original note to Anthony B. Canna.

Again the note made no provision for interest.

Following the entry of its judgment on November 18, 1970 plaintiff levied execution upon Diodato’s Cadillac. As a result plaintiff became aware of the fact that Canna was designated as “secured party” on the certificate of ownership of the vehicle, and was asserting a lien against it as security for the two loans, prior to the lien of plaintiff’s execution on its judgment.

Thereupon plaintiff initiated the present action to set aside as invalid the lien claimed by Ganna upon the automobile. After hearing, the trial judge rejected contentions by the plaintiff “that no consideration passed between the parties . . . [and] that no value was given”; in essence found that the transaction between Diodato and Canna created a valid security interest in the automobile in Canna, which was perfected by the designation of Canna as “secured party” on the certificate of ownership, and held that Canna’s lien was prior to that of plaintiff. The present appeal has been taken from said determination.

The single ground urged for reversal is that the transaction between Canna and Diodato did not create in Canna a security interest in the Cadillac, prior to and enforceable against the plaintiff’s lien.

Under the terms of the Uniform Commercial Code a security interest is defined as “an interest in personal property . . . which secures payment or performance of an obligation.” N. J. S. A. 12A:1-201(37). Such a security interest in collateral cannot be created or established absent an agreement between the parties “that it attach.” N. J. S. A. 12A :9-204(1). Otherwise stated, there must be “an agreement w'hich creates or provides for a security interest.” N. J. 8. A. 12A:9-105(1) (h). And where the collateral given as security is a chattel not in the actual possession of the creditor, the security agreement must be in writing, signed by the debtor, in order to render the security interest “enforceable against the debtor or third parties.” N. J. 8. A. 12A:9-203(1).

In view of the fact that the proofs here indicate that no security agreement, as such, was signed by Diodato, and that the only agreements signed by him were the promissory notes, we are faced with the question as to whether either or both of the notes may be construed as constituting the security agreement required by the Code. We conclude that they may not be so construed.

By its very nature an agreement creating a security interest in collateral, of necessity, must contain language that grants or creates a security interest in the collateral. In short, the language must be such as to clearly indicate that the debtor intended to thereby specifically grant to the creditor a security interest in the collateral. Absent such language the writing does not constitute a security agreement and does not create a security' interest. Mitchell v. Shepherd Mall State Bank, 458 F. 2d 700, 703 (10 Cir. 1972), and cases therein cited at note 1.

Ueither of the promissory notes here in evidence contains any language or wording which expressly or by implication grants, conveys or transfers to Canna, or otherwise creates or establishes in him, a lien or interest in the Cadillac as security for the repayment of the loans. The mere reference in each of the notes to the Cadillac by make, year and serial number does not operate to supply the missing essentials and, somehow, metamorphose the notes into a security agreement. Indeed, it has been specifically held that a promissory note which does not contain language granting a security interest in collateral, “even . . . [where the note recites] data relating to collateral security, is not thereby converted into such an agreement.” Safe Deposit and Trust Co. v. Berman, 393 F. 2d 401, 403 (1 Cir. 1968). See also, American Card Co. v. H.M.H. Co., 97 R. I. 59, 196 A. 2d 150 (Sup. Ct. 1963). Cf. In re Walter W. Willis, Inc., 313 F. Supp. 1274 (N. D. Ohio 1970), aff'd 440 F. 2d 995 (6 Cir. 1971); Evans v. Everett, 279 N. C. 352, 183 S. E. 2d 109 (Sup. Ct. 1971). See generally, Annotation, “Construction and effect of UCC Art. 9, dealing with secured transactions, sales of accounts, contract rights, and chattel paper,” 30 A. L. R. 3d 9, §§11 and 12 (1970).

Thus, the notes, individually or jointly, may not be construed as and do not constitute a security agreement within the meaning and contemplation of the term as used in the Code.

Nor is the deficiency supplied by the notation contained on the certificate of ownership of the Cadillac, which designates Canna as “secured party.” In New Jersey, under the provisions of the Code and the Motor Vehicle Act, such notation is the method utilized to perfect a security interest which has been created in a motor vehicle by virtue of an appropriate and valid security agreement, in lieu of the financing statement customarily required to be filed to perfect a security interest in other type collateral. N. J. S. A. 12A:9-302(1) (d), (3) (b), (4);' N. J. 8. A. 39:10~L1(J). Quite apart from the fact that it does not appear that the notation on the certificate of ownership was signed by “the debtor”, the notation is no more than that — namely, a notation. It does not itself grant or purport to grant a security interest in the automobile.

Consequently, the notation does not satisfy the requisites of the security agreement. As stated by Judge Murrah in Mitchell v. Shepherd Mall State Bank, 458 F. 2d 700, 703-704 (10 Cir. 1972) :

The fact that tile parties signed and filed a financing statement which covered . . . [the collateral], is of no consequence to our decision. The function of a financing statement is to put third parties on notice that the secured party who has filed it may have a perfected security interest in the collateral described. * * Absent language which would constitute the debtor’s grant of a security interest, a financing statement cannot serve as a security agreement. * * *

See also, M. Ruthin Elect. Sup. Co., Inc. v. Burdette Elect., Inc., 98 N. J. Super. 378 (Ch. Div. 1967), and American Card Co. v. H.M.H. Co., supra.

In light of the foregoing, defendant Anthony L. Canna has no security interest in the Cadillac by virtue of the transactions of February 28, 1970 and April 15, 1970, between the Cannas and Diodato; and, therefore, plaintiff is entitled to satisfy the lieu of its judgment against Diodato by the sale of the Cadillac under its levy of execution.

Accordingly, the judgment of the Law Division is reversed.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    STATE OF NEW JERSEY, TOWNSHIP OF FREEHOLD, PLAINTIFF-RESPONDENT, v. STANLEY DORMAN, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Submitted May 15, 1973
    Decided June 5, 1973.

      Before Judges Kolovsky, Matthews and Crahay.

      Mr. Stanley Dorman, appellant, pro se.

      Mr. John A. Kaye, attorney for respondent.
   Per Curiam.

Defendant was found guilty of parking in a fire zone located in a shopping center, in violation of a Freehold Township ordinance. He appealed to the County Court where his conviction was affirmed. He now appeals to this court, contending, as he did below, that under Title 39 the State has exclusive jurisdiction over traffic control and, therefore, any ordinance adopted by a municipality concerning traffic must be approved by the director of the Division of Motor Vehicles pursuant to N. J. 8. A. 39 -A — 202. He also argues that the fire zone sign in question, which he admittedly saw, did not comply with state regulations for traffic signs.

Defendant’s argument ignores the clear mandate of N. J. 8. A. 40A:14^53 (formerly N. J. 8. A. 40:47-48) and N. J. 8. A. 40 :48-2.46, which grant to municipalities the authority to regulate traffic in parking yards and, in particular, to regulate traffic in fire areas. Under these provisions, municipal control is exclusive, and impliedly no approval from the State is necessary. Defendant cites several statutes, including N. J. 8. A. 39:5A-1 and N. J. 8. A. 39 :4~1 et seq., which do not directly or impliedly cover parking in fire zones on private property, and hence cannot apply here.

Defendant’s argument that the fire sign in question did not conform with state law rests on the incorrect assumption that Title 39 applied to fire zones. Further, defendant has not made any factual showing as to how the sign failed to comply, nor did he demand that plaintiff show compliance as part of its case.

The judgment below is affirmed.


author: Collins, J. C. C.,

text:
    GREGORY A. BLAIR AND MARIE BLAIR, HIS WIFE, PLAINTIFFS, v. ERIE LACKAWANNA RAILWAY COMPANY, a/k/a ERIE LACKAWANNA RAILROAD COMPANY, P. J. McGINLEY, W. E. SERFASS AND JOHN OLAH. JOHN E. McCABE AND JULIANA ANN McCABE, HIS WIFE, PLAINTIFFS, v. ERIE LACKAWANNA RAILWAY COMPANY, a/k/a ERIE LACKAWANNA RAILROAD COMPANY, TRAIN ENGINEER AND TRAIN CONDUCTOR, DEFENDANTS.
    Superior Court of New Jersey Law Division
    Decided May 22, 1973.

      Mr. Stephen S. Weinstein for all plaintiffs.

      Mr. Richard M. Icklan for all defendants (Messrs. Lamb, Blake, Hutchinson, Thompson & Chappell, attorneys).
   Collins, J. C. C.,

Temporarily Assigned. Plaintiff Gregory A. Blair contends that he was injured due to the negligence of defendant Erie Lackawanna Kail way Company and certain of its employees. There is some indication that he may have been hurt while attempting to board a moving passenger train.

Plaintiff John E. McCabe also contends that he was injured due to the negligence of defendant Erie Lackawanna Kailway Company and certain of its employees. There is some indication that McCabe may have suffered his injury while alighting from a moving passenger train.

This court has been called upon by plaintiffs in these two actions to rule upon their motions to strike certain of defendants’ affirmative defenses or in the alternative to grant summary judgments. While these eases have not been consolidated for trial, the respective motions in each deal with precisely the same issue, to wit, the constitutionality of a portion of N. J. S. A. 48:12-152, whose provisions have been raised by the defendant in both actions, Erie Lackawanna Kailway Company, as an affirmative defense. Plaintiffs, in effect, ask this court to declare the following statutory provision to be violative of our state and federal organic law and hence void and of no effect:

48 -.12-152. Trespassing on tracks prohibited; contributory negligence ; injury on tracks or moving car; crossings.
* ih * * * :!i *
Any person injured by an engine or car while walking, standing or playing on a railroad or by jumping- on or off a car while in motion shall be deemed to have contributed to the injury sustained and shall not recover therefor any damages from the company owning or operating the railroad. * a" *.

Whenever one challenges the constitutional validity of a legislative enactment he undertakes a formidable task, and rightly so, for he is challenging the collective judgment of the -elected representatives, of the people. A court called upon to measure the validity of such an assault is, in its turn, functioning in one of the most delicate areas of jurisprudence, where it must constantly keep in mind the necessity to interfere as little as possible with the performance of constitutionally charged duties by a coequal branch of government while concurrently meeting its responsibility to safeguard the rights of the individual and to insure adherence by all to the requirements of our State and Federal Constitutions.

The doctrine of separation of powers is a fundamental principle of American government, expressly provided for in the constitutions of many states, and implied in almost all the others and in the Federal government from the creation of the three separate branches of government. See Annot. 69 A. L. R. 266 (1930) ; Annot. 89 A. L. R. 1113 (1934). * * *
The doctrine of separation of powers must therefore be viewed not as an end in itself, but as a general principle intended to be applied so as to maintain the balance between the three branches of governmeirt, preserve their respective independence and integrity, and prevent the concentration of uneheeleed power in the hands of any one branch. * * * [David v. Vesta Co., 45 N. J. 301, 315-326 (1965)]
It is well to repeat that while the doctrine of separation of powers is designed to prevent a single branch from claiming or receiving inordinate power, there is no bar to cooperative action among the branches of government. On the contrary, the doctrine necessarily as~ sumes the branches will coordinate to the end that government will fulfill its mission. In re Zicarelli [Zicarelli v. New Jersey State Comm. of Investigation] 55 N. J. 249, 264 — 265 (1970), affirmed 406 V. S. 472, 92 S. Ct. 1670, 32 L. Ed. 2d 234 (1972). * * *. [Brown v. Heymann, 62 N. J. 1, 11 (1972) ; emphasis added]

In order to implement the principles noted above our courts have developed certain presumptions in favor of, and imposed certain burdens upon those seeking to challenge the constitutional validity of, the enactments of our legislature.

* *• * There is a strong presumption that a statute is constitutional, General Electric Co. v. City of Passaic, 28 N. J. 499, 510 (1958) ; In re Village of Loch Arbour, 25 N. J. 258, 264-265 (1957), and a legislative act will not be declared void unless its repugnancy to the constitution is clear beyond a reasonable doubt. Gangemi v. Berry, 25 N. J. 1, 10 (1957). “To declare a statute unconstitutional is a judicial power to be delicately exercised.” Wilentz v. Henrickson, 133 N. J. Eq. 447, 487 (Ch. 1943), affirmed 135 N. J. Eq. 244 (E. & A. 1944). * *’ * [Harvey v. Essex County Bd. of Chosen Freeholders, 30 N. J. 381, 388 (1959)]
There is a presumption [in favor] of the constitutional sufficiency of a legislative enactment; and the onus of a showing contra is on him who interposes the challenge. [Citations omitted]. The finding of the Legislature is presumed to have the support of facts known to it “unless facts judicially known or proved preclude that possibility”; generally it is “not the province of a court to hear and examine evidence for the purpose of deciding again a question which the legislature has already decided”; * * *. Clark v. Paul Gray, 306 U. S. 583, 59 S. Ct. 744, 83 L. Ed. 1001 (1939). Every intendment is indulged in favor of the validity of the act. * * * [Jamouneau v. Harner, 16 N. J. 500, 515 (1954), cert. den. 349 U. S. 904, 75 S. Ct. 580, 99 L. Ed. 1241 (1955)]

Also see Fried v. Kervick, 34 N. J. 68, 74 (1961); Levitt & Sons v. Div. against Discrimination, etc., 31 N. J. 514, 531 (1960); In re Loch Arbour, 25 N. J. 258, 264-265 (1957); Williams v. Smith, 94 N. J. Super. 341, 346 (App. Div. 1967) aff’d 51 N. J. 161 (1967); In re Freygang, 46 N. J. Super. 14 (App. Div. 1957), aff’d 25 N. J. 357 (1957); State v. Community Distributors, Inc., 123 N. J. Super. 589 (Monmouth Cty. Ct., decided April 23, 1973); Kohler v. Barnes, 123 N. J. Super. 69, 83 (Law Div. 1973); N. J. Sports & Exposition Authority v. McCrane, 119 N. J. Super. 457, 472-473 (Law Div. 1971), mod. on other gds., 61 N. J. 1 (1972).

The wisdom of the legislature of the means it selects are not subject to review or interference by the courts except in the protection of fundamental constitutional rights. Gundaker Central Motors v. Gassert, 23 N. J. 71, 81 (1956). * * *. [State v. Ulesky, 100 N. J. Super. 287, 295 (Cty. Ct. 1968), rev’d on other gds. 54 N. J. 26 (1969)]

Cf. Texas Co. v. Di Gaetano, 71 N. J. Super. 413, 431 (App. Div. 1962).

A final caveat must be noted before we enter into an analysis of the arguments presented in this matter. This court is a trial court and hence the above noted limitations, clearly binding upon all levels of the judiciary, are, if this is possible, even more strictly to be observed by us than the courts of an appellate nature.

In Legg v. County of Passaic, 122 N. J. L. 100, 4 A. 2d 300 (Sup. Ct. 1939), Mr. Justice Parker quoted with approval from an opinion of Judge Dungan, that “the better practice is for the inferior court to assume that an act is constitutional until it has been passed by the Appellate Court, unless it is so clearly in contravention of the constitution that there can be no reasonable doubt about it, * *
It is clear that it is not the function of this court to pioneer in the field of constitutional law. The presumption of constitutionality must he applied with greater force here than in the appellate courts. The pattern of the law must be drawn by the appellate courts. The trial courts, especially those of limited jurisdiction, must follow, not lead. [Neeld v. Automotive Products Credit Ass’n, 21 N. J. Super. 159, 161 (Cty. D. Ct. 1952)]

Cf. State v. Cannarozzi, 77 N. J. Super. 236, 239 (App. Div. 1962).

Defendant initially pnts forward the proposition that the case of Egan v. Erie R. R. Co., 29 N. J. 243 (1959), is dis-positive of the question of the constitutionality of the statutory provision before the court. With this the court cannot agree.

Egan dealt with a situation where a seven-year-old infant-trespasser fell and was injured while attempting to board a moving freight train. The analysis of the court was based upon the premise that “the effect of the statute is to absolve a railroad company from a duty to a trespasser.” 29 N. J. 248. The court held the statute constitutional as applied to infant trespassers.

Considering the importance of railroads as an instrument of transportation and commerce, the enormous territory encompassed by their rights of way, and the practical impossibility of adequately fencing or guarding them against trespassers, we cannot say that legislation relieving them from liability to trespassers while not so relieving other landowners is arbitrary ox unreasonable, [at 253]

Nowhere does it appear that the court considered the question of the constitutionality of this statute as applied to paying passengers in areas reasonably subject to supervision by railroad employees. Therefore this court does not believe it is foreclosed from examining the plaintiffs’ arguments. It should be emphasized, however, that our ease law indicates these statutory provisions have been applied to fare-paying passengers, although such application does not appear to have ever been examined in the context of a constitutional challenge such as the one currently before the court. See, for example, Kovacs v. Pennsylvania R. R. Co., 76 N. J. Super. 451 (App. Div. 1962).

The first argument presented by plaintiffs with which the court will deal is that N. J. S. A. 48:12-152 infringes upon the constitutionally mandated rule-making power of our Supreme Court.

Plaintiffs argue that the statute, by providing that where it is determined a plaintiff was injured while jumping on or off a moving train, contributory negligence is established as a matter of law, deprives the trial court of its discretion to submit issues of negligence or contributory negligence to the jury. Plaintiffs point to George Siegler Co. v. Norton, 8 N. J. 374 (1952), as indicating that such a statute, by interfering with the trial court’s discretion to grant or deny a summary judgment, runs afoul of the doctrine first established in Winberry v. Salisbury, 5 N. J. 240 (1950), cert. den. 340 U. S. 877, 71 S. Ct. 123, 95 L. Ed. 638 (1950), derived from N. J. Const. (1947) Art. VI, § II, par. 3.

Plaintiffs therefore must contend that N. J. S. A. 48:12-152 is concerned primarily with matters of practice and procedure rather than substantive law. Winberry v. Salisbury, supra; George Siegler Co. v. Norton, supra; New Shrewsbury v. Block 115, Lot 4, 74 N. J. Super. 1, 8 (App. Div. 1962); State v. United States Steel Corp., 19 N. J. Super. 274 (Ch. Div. 1952), aff’d 12 N. J. 38 (1953).

s; *> * The distinction between substantive law, which defines our rights and duties, and the law of pleading and practice, through which such rights and duties are enforced in the courts, is a fundamental one that is part of the daily thinking of judges and lawyers. Substantive law includes much more than legislation, it comprehends also the rights and duties which have come down to us through the common law. * * * [Winberry v. Salisbury, supra., 5 N. J. at 247— 248]

In the Norton case the court dealt with a statute, N. J. S. A. 48:12-83, which did not simply grant or deny altogether a right to recovery, but prescribed procedurally whether the court or the jury should make the decision as to whether there should or should not be an award of damages. N. J. S. A. 48:12-152,'as defendant’s counsel has pointed-out, gives “the trial judge the right to nonsuit a plaintiff or to submit the issue of contributory negligence to a jury if the circumstances dictate.” N. J. S. A. 48:12-152 provides a standard against which a plaintiff’s conduct may be measured in order to determine whether he is entitled to a recovery or not. See Rosenberg v. North Bergen, 61 N. J. 190, 199-200 (1972). N. J. S. A. 48:12-83, on the other hand,

* * * merely postpones any consideration by the court of the question of contributory negligence as a matter of law until after a verdict is rendered and is wholly procedural in its application. We therefore conclude that the statute operates within the field of our exclusive rule making power and since it prevents the entry of a judgment of dismissal at the close of the plaintiff’s evidence or a judgment for the defendant at the close of all the evidence, where, under Rule 3:41-2 or Rule 3 :50 such a judgment would be proper, the statute is necessarily in conflict with such rules and therefore is superseded thereby and no longer effective. [George Siegler Co. v. Norton, supra., 8 N. J. at 382-383]

N. J. S. A. 48:12-152 does not similarly run afoul of the rule-making prerogative of our Supreme Court.

In conjunction with their Winberry argument, plaintiffs have contended that N. J. S. A. 48:12-152 intrudes upon the Supreme Court’s power to adopt rules of evidence both under the State Constitution and N. J. S. A. 2A :84A-33, and that by creating an irrebuttable presumption of negligence it is in conflict with our Evidence Rules 13 and 14. As indicated previously, all N. J. 8. A. 48 :12-152 does is to set out a negative standard for recovery. Further, it would appear that the statute simply codifies long extant principles of our decisional law. See, for example, Zelman v. Pennsylvania R. R. Co., 93 N. J. L. 57, 58-59 (Sup. Ct. 1919), aff’d 94 N. J. L. 283 (E. & A. 1920); Kovacs v. Pennsylvania R. R. Co., supra., 76 N. J. Super. at 457.

While there is no question in this court’s mind of the substantive nature of the provisions in question, it should be noted that even if there were some doubt, this court would be extremely wary of its assertion of the judiciary’s supremacy in the field of rule-making. As Justice Jacobs indicated in his famous dissent in State v. Otis Elevator Co., 12 N. J. 1 (1953),

* * * the doctrine oí judicial supremacy in rule making ought, as a matter of comity towards the Legislature, be accompanied by fair recognition of important statutory policies in fields which are of special legislative concern. * s'' *. Compare the famous dissenting opinion of Justice Stone (joined by Justices Brandeis and Cardozo) in United States v. Butler, [297 U. S. 1, 56 S. Ct. 312, 80 L. Ed. 477,] supra., where he poignantly noted that while the other branches of government are always subject to judicial restraint the only check on the court’s assertion and exercise of power is its “own sense of self-restraint.” [at 25-26]

See also New Shrewsbury v. Block 115, Lot 4., supra.

It is interesting to note, with regard to the very rules of evidence allegedly interfered with by the statute in question, that they were purposely codified in both statutory and rule form so as to insure the participation of all branches of State Government, thus making moot any question of promulgating authority, and represented the combined efforts of the judicial and legislative branches of our State Government. New Jersey Rules of Evidence (1972 ed.), “Preliminary Comments to the Rules,” by Chief Justice Weintraub, at p. v; Vincent J. Biunno, Esq., at p. xix.

To conclude, given the presumptions earlier noted in favor of the constitutional validity of a legislative enactment, and the failure of plaintiffs to show this statute is procedural rather than substantive in nature and thus suspect under N. J. Const. (1947), Art. VI, § II, par. 3, plaintiffs’ first argument necessarily fails.

We now turn to plaintiffs’ arguments, closely interrelated, with regard to equal protection under both our State and Federal Constitutions, and our State Constitution’s prohibitions against the enactment of laws of a private, special or local character.

Plaintiffs make their equal protection argument on several fronts. They contend that the singling out of railroads for the grant of a special immunity, while not granting other common carriers a similar protection, is without a rational basis. In effect, they argue that railroads may not be distinguished from other forms of public transportation insofar as the liability of such carriers to their passengers is concerned. Secondly, they argue that while the rationale of the Egan case, i. e., the inability of a railroad to police every yard of its right of way, indicates a rational basis for the protection of railroads by the provisions of N. J. 8. A. 48 :12-152, this basis bears no relation to paying passengers such as plaintiffs in this case. (With this second contention the court has already indicated its agreement by not finding Egan to be dispositive of the issues herein raised). Thirdly, plaintiffs argue that the statute in question, insofar as it accords protection to railroads alone, has lost a basis it once may have had for the special classification accorded this form of transportation. Cf. Fisher v. Bedminisler Tp., 11 N. J. 194, 204-205 (1952). The court is urged “to reconsider The importance of railroads as an instrument of transportation and commerce’, in light of todaj^s’ changing emphasis in the field of public and private transportation,” see Egan v. Erie R. R. Co., supra., 29 N. J. 253, particularly in light of the trend in the law today towards the limitation of immunities from liability. See, for example, Willis v. Dept. of Conservation and Economic Development, 55 N. J. 534 (1970); Collopy v. Newark Eye and Ear Infirmary, 27 N. J. 29 (1958).

Plaintiffs, in making the above-noted arguments, have raised the guarantees of both the New Jersey and Federal Constitutions. While many of our courts appear to have believed that the analysis to be conducted under these two concepts is the same, it would appear from a recent decision of our Supreme Court that there are certain distinctions between the application of equal protection under our State Constitution and that of the principle under the 14th Amendment to the Federal Constitution. Robinson v. Cahill, 62 N. J. 473 (1973).

Judge Botter, in one of several opinions he was called upon to write with regard to a constitutional challenge to the system of financing for our public schools, was asked to determine where in our State Constitution the right to equal protection of the laws resides:

* * * In Robinson v. Cahill, 118 N. J. Super. 223, 270-271 (Law Div. 1972) ; Washington Rational Ins. Co. v. Board of Review, 1 R. J. 545, 553-554 (1949), was cited for the proposition that the right to equal protection resides in Art. I, par. 1 of our State Constitution. This view would appear to have been cited with approval in Bailey v. Engelman, 56 N. J. 54, 55 (1970). While the phrase “equal protection of the law's” is not used in the New Jersey Constitution, concepts of equality comparable to the rights of equal protection under the Fourteenth Amendment are derived from a number of provisions of our State Constitution. In General Public Loan Corp. v. Director, Div. of Taxation, 13 N. J. 393, 401 (1953), reference is made to Art. I, par. 1, and Art. IV, § 7, pars. 7, 8 and 9, as the “group of constitutional provisions * *’ * adverted to as the ‘equal protection’ clauses.” See also Robson v. Rodriguez, 26 N. J. 517, 526 (1958), where the court said that the “test of whether a law constitutes special legislation is essentially the same as that which determines whether it affords equal protection of the laws.” See also Alfred Vail Mutual Ass’n. v. Borough of Shrewsbury, 58 N. J. 40, 52 (1971), where the court, in dealing with the reasonableness of classifications for legislative purposes, emphasized the requirement that the legislature act “by general laws” contained in the concluding paragraph of Art. IY, § 7, par. 9.
Although my January 19 opinion dealt with equal protection rights, the concept that legislation must not be arbitrary and cannot contain unreasonable classifications, unnecessary or unrelated to appropriate legislative purposes, may also be expressed in terms of due process rights. See Adler’s Quality Bakery, Inc. v. Gaseteria, Inc., 32 N. J. 55, 70 (1960) ; Reingold v. Harper, 6 N. J. 182, 190-194 (1951).
My purpose here is simply to indicate that equal protection rights and the requirement for reasonable classifications germane to a legislative purpose are rights that are derived not only from Art. I, par. 1, but are common to other provisions of our State Constitution. It may be said that these rights find expression in our State Constitution so pervasive that they constitute the most fundamental and essential guaranty of that Constitution. * * * [Robinson v. Cahill, 119 N. J. Super. 40, 48 (Law Div. 1972), mod. 62 N. J. 473 (1973)]

In any case, it would appear that as our Supreme Court recently said,

The concept of equal protection antedates the Fourteenth Amendment. It is implicit in a democratic form of government. The Declaration of-Independence proclaimed that “all men are created equal,” which must mean equality at the hands of government. * *’ * [Robinson v. Cahill, 62 N. J. at 483, fn. 1]

As mentioned earlier, our Supreme Court has indicated certain differences between the application of equal protection under the Eederal and State Constitutions in its decision in Robinson.

We go then to the question of whether our State guarantee of equal protection is offended. In preparing this opinion before the decision in Rodriguez [San Antonio Independent School District v. Rodriguez, 411 U. S. 1, 93 S. Ct. 1278, 36 L. Ed. 2d 16 (1973)] we considered both the federal and state equal protection issues in terms of the compelling state interest doctrine, because the doctrine could not be ignored on the federal issue and because the parties presented the State constitutional issue on the same terms. * * *. We should not be understood, because of our treatment of the State equal protection issue in those terms, to embrace that doctrine in the application of the State equal protection issue.
In passing we note briefly the reason why we are not prepared to accept that concept for State constitutional purposes. We have no difficulty with the thought that a discrimination which may have an invidious base is “suspect” and will be examined closely. And if a discrimination of that kind is found, the inquiry may well end, for it is not likely that a state interest could sustain such a discrimination. But we have not found helpful the concept of a “fundamental” right. No one has successfully defined the term for this purpose. Even the proposition discussed in Rodriguez, that a right is “fundamental” if it is explicitly or implicitly guaranteed in the Constitution, is immediately vulnerable, ¡or the right to acquire and hold property is guaranteed in the Federal and State Constitutions, and surely that right is not a likely candidate for such preferred treatment. And if a right is somehow found to be “fundamental” there remains the question as to what State interest is “compelling” and there, too, we find little, if any, light. Mechanical approaches to the delicate problem of judicial intervention under either the equal protection or the due process clauses may only divert a court from the meritorious issue or delay consideration of it. Ultimately, a court must weigh the nature of the restraint or the denial against the apparent public justification, and decide whether the State action is arbitrary. In that process, if the circumstances sensibly so require, the court may call upon the State to demonstrate the existence of a sufficient public need for the restraint or the denial. * * * [Robinson v. Cahill, 62 N. J. at 491-492; emphasis added]

On the basis of the arguments presented in the instant ease, there has been no indication of an allegation of classification on the basis of suspect criteria, such as race or wealth, nor of the violation of a “fundamental” right, in the sense indicated in Robinson, supra. Therefore, this court feels secure in treating both the federal and state equal protection issues in the same manner and thus the following analysis is to be considered as applicable to both. This court will, of course, avoid the mechanical approach abhorred in Robinson. However, it is apparent that we should still make use of those principles of statutory construction and constitutional law previously developed by our courts for use in the area of equal protection in order to determine whether the restraint imposed by N. J. 8. A. 48:12-152 (which, incidentally, as the statute appears only to codify existing principles of our substantive law, may in any case be superfluous), balanced against the justification for it, indicates tlie Legislature’s enaction of the statute was arbitrary and its continued enforcement violative of our organic law.

The general presumptions and burdens noted at the beginning of this opinion are joined by others of a like character, particularly tailored to be used in the analysis of the validity of classifications adopted by the Legislature in the light of,the requirements of equal protection.

The rules for judicial review of a legislative classification which is challenged as a denial of equal protection are well settled. The equal protection clause of the Fourteenth Amendment does not deprive the State of the power to classify in the adoption of police laws, but allows wide discretion, precluding only that done without any reasonable basis and therefore purely arbitrary. The constitutionality of a legislative classification is presumed and one who assails the classification must carry the burden of showing its arbitrariness. A classification having some reasonable basis is not invalid merely because it is not made with mathematical nicety or because in practice it results in some inequality. And the classification must be upheld if any set of facts can reasonably be conceived to support it. In short, the equal protection clause forbids only invidious discrimination. * * *
More specifically, evils in the same field may be of different dimensions and proportions, and the reform may therefore take one step at a time, attacking the evil where it seems most acute to the legislative mind. * * * [David v. Vesta Co., supra., 45 N. J. at 314-315]
The classification satisfies the constitutional test of equality and reasonableness if it rests upon some ground of difference having a real and substantial relation to the basic object of the legislation or some relevant consideration of public policy. Even though the distinction be narrow, it suffices if it is reasonably concerned with the end legitimately in view. Ring v. Mayor and Council of Borough of North Arlington, 136 N. J. L. 494 (Sup. Ct. 1948), affirmed 1 N. J. 24 (1948). * * *
Arbitrary selection can never be justified by terming it classification. Classification must itself be fair and impartial and not arbitrary or illusory, grounded in material distinctions and differences concerned with the central legislative policy; and it satisfies the constitutional standard if there be any conceivable state of facts affording a just ground for the action taken * * *. If there be a reasonable distinction of circumstance there is not the oppressive inequality at odds with the equal protection principle. Washington National Insurance Co. v. Board of Review, 1 N. J. 545 (1948). [Guill v. Mayor and Council of City of Hoboken, 21 N. J. 574, 582-583 (1956) ; emphasis added]

See also Pierro v. Baxendale, 20 N. J. 17 (1955)

* * * The equal protection clause of the Fourteenth Amendment secures equality of right by forbidding arbitrary discrimination between persons similarly circumstanced. Classification is consistent with this principle if it be reasonably based in the public policy to be served. It is not necessarily fatal that the classification be wanting in purely theoretical or scientific uniformity or mathematical nicety or that there be some inequality in practice. * * * [Schmidt v. Board of Adjustment of Newark, 9 N. J. 405, 418 (1952)]

This court cannot agree with plaintiffs’ argument that railroads cannot, for purposes of tort liability to fare-paying customers, be distinguished from other forms of public transportation. The number of passengers carried at any one time, the extent of the areas to be supervised, the need to have more than a few common entranceways onto cars, are just a few of the distinctions upon which the Legislature could have determined, and, indeed, may still determine, that the railroads should receive consideration as a special class. This court cannot say, especially in light of the Egan decision, written in 1959, that, given the growing crisis in both urban transportation and sources of energy for locomotion, that railroads are no longer important instruments of transportation and commerce deserving of special treatment in furtherance of public welfare. The mere fact that other modes of travel have not been accorded the same sort of statutory treatment does not invalidate the act.

* *" * The Legislature has a large measure of discretion in selecting the means of accomplishing its goals, and distinctions of degree will be presumed to rest upon a rational basis if there be any conceivable state of facts which would afford reasonable ground therefor. * * * [Robson v. Rodriguez, 26 N. J. 517, 524 (1958)]

Further,

* * * The legislative authority “is not bound to extend its regulation to all cases which it might possibly reach. The Legislature ‘is free to recognize degrees of harm and it may confine its restrictions to those classes of cases where the need is deemed to be clearest.’ If ‘the law presumably hits the evil where it is most felt, it is not to be overthrown because there are other instances to which it might have been applied.’ ” West Coast Hotel Co. v. Parrish, 300 U. S. 379, 57 S. Ct. 578, 585, 81 L. Ed. 703 (1937). [Board of Health, Weehawken Tp. v. N. Y. Central R. Co., 4 N. J. 293, 302 (1950).]

The Legislature determined that railroads are entitled to be secured from negligence suits involving actions by plaintiffs who have contributed to their own injuries in the manner enumerated. While the court doubts the need for such legislation in light of our State’s relevant case law, already noted, it cannot say there is no rational basis for the Legislature’s enactment of N. J. S. A. 48:12 — 152 and its distinctive classification of railroads, a classification designed to help insure the continued operation of this type of transportation and to discourage individuals from engaging in conduct of a nature dangerous to themselves.

The court is well aware that “care must be exercised that the efficacy of constitutional guarantees shall not be whittled away by indulging in unwarranted presumptions of a factual basis for the legislation.” Sarner v. Union Tp., 55 N. J. Super. 523, 533-534 (Law Div. 1959). The classification in the instant case, however, bears a reasonable and just relation to a substantial consideration of public policy. This consideration, particularly in light of the state of our decisional law with regard to the contributory negligence of those jumping onto or off of moving passenger trains, outweighs any incidental injury to individuals whose litigations might be affected by it. Washington National Ins. Co. v. Board of Review, 1 N. J. 545, 552 (1949); Robinson v. Cahill, supra. Further, it would appear to this court at least that persons injured while voluntarily jumping onto or off of moving buses or aircraft would be contributorily negligent in a mode similar to that provided by our case law for railroad passengers. Cf. Massotto v. Public Service Coord. Transport, 71 N. J. Super. 39, 45 (App. Div. 1961).

The burden of demonstrating that a statute contravenes the equal protection clause is extremely formidable, as is attested by the long trail of failure. In addition to the strong presumption of constitutionality with which all organic challenges are approached, one who assails a statute on this ground must contend with principles of unusual elasticity. It is easily stated that the classification (1) must not be palpably arbitrary or capricious, and (2) must have a rational basis in relation to the specific objective of the legislation. But the second proposition is qualified by limitations which compound the difficulties of one who assails the legislative decision. Thus it is not enough to demonstrate that the legislature’s objective might be more fully achieved by another, more expansive classification, for the Legislature may recognize degrees of harm and hit the evil where it is most felt. * v * The Legislature may thus limit its action upon a decision to proceed cautiously, step by step, or because of practical exigencies, including administrative convenience and expense, * * *, or because of “some substantial consideration of public policy or convenience or the service of the general welfare.” [N. J. Restaurant Ass’n. Inc. v. Holderman, 24 N. J. 295. 300 (1957)]

See also, Two Guys From Harrison, Inc. v. Furman, 32 N. J. 199, 218 (1960); Gilman v. Newark, 73 N. J. Super. 562 (Law Div. 1962); Zullo v. Bd. of Health, Woodbridge Tp., 9 N. J. 431, 439-440 (1952); State v. Garford Trucking, Inc., 4 N. J. 346, 355-356 (1950) ; Wilson v. Long Branch, 27 N. J. 360 (1958).

Plaintiffs have failed to carry the burden of showing N. J. S. A. 48:12-152 is violative of the concept of equal protection.

Plaintiffs also contend that N. J. S. A. 48 :12-152 is a special, private or local law in violation of N. J. Const. (1947), Art. IV, § VII, pars. 7, 8, 9(8). To put it another way plaintiffs contend the statutory provisions in question are not “general” in character. “* * * In the constitutional sense, every law is either general or special.” Vail Mutual Ass’n v. Speaker of House, 107 N. J. Super. 517, 530 (App. Div. 1969).

A law is “general” (1) if the class of subjects established, recognized or regulated is distinguished by characteristics sufficiently marked and important to make it a class by itself, and (2) if it encompasses all of the subjects which reasonably belong within the classification, and does not exclude any which naturally belong therein. A law is private, special or local if it arbitrarily or unnaturally excludes any subject which should be included. Harvey v. Essex County Board of Freeholders, 30 A. J. 381, 389 (1959). [Roe v. Kervick, 42 A. J. 191, 233 (1964)]
In deciding whether an act is general or special, it is what is excluded that is the determining factor and not what is included. Budd v. Hancock, 66 N. J. L. 133, 135-136 (Sup. Ct. 1901). If no one is excluded who should be encompassed, the law is general. Another requirement of a general law is that it must affect equally all of a group who, bearing in mind the purposes of the legislation, are distinguished by characteristics sufficiently marked and important to make them a class by themselves. In Van Riper v. Parsons, 40 N. J. L. 1, 9 (Sup. Ct. 1878) the court pointed out that local and special laws rest on a false or deficient classification in that “their vice is that they do not embrace all the class to which they are naturally related; they create preference and establish inequalities; they apply to persons, things or places possessed of certain qualities or situations, and exclude from their effect other persons, things or places which are not dissimilar in those respects.” [Citations omitted]. With this distinction between a special and a general law in mind, the. question is whether any appropriate person is excluded to which the law, but for its limitations, would apply. * * * [Citations omitted].
****#❖:{:>>*•
It is well established that the Legislature has a wide range of discretion in determining classifications and distinctions will be presumed to rest upon a rational basis “if there be any conceivable state of facts which would afford reasonable support for them.” Wilson v. City of Long Branch, 27 N. J. 360, 377 (1958). * * * [Harvey v. Essex County Board of Chosen Freeholders, supra. 30 N. J. at 389-390]

See also, Vail Mutual Ass'n v. Speaker of House, supra.; In re Freygang, 46 N. J. Super. 14, 22-27 (App. Div. 1957), aff’d 25 N. J. 357 (1957); Koons v. Board of Commissioners, Atlantic City, 134 N. J. L. 329, 332-333 (Sup. Ct. 1946), aff’d o.b. 135 N. J. L. 204 (E. & A 1947); Mason v. Paterson, 120 N. J. Super. 184 (Law Div. 1972).

The court believes that with regard to the determination of whether a statute is general or special “the reasonableness of a classification must be judged in the light of the legislative objective,” Kline v. N. J. Racing Comm’n, 38 N. J. 109, 118 (1962), and that the' analysis already engaged in by us in the context of equal protection is generally dispositive of plaintiffs’ arguments with regard to their contention that N. J. S. A. 48:12-152 is a special law, Meadowlands Regional Development Agency v. State, 112 N. J. Super. 89, 101-102 (Ch. Div. 1970); Rosenberg v. North Bergen, 61 N. J. 190, 201 (1972); Alfred Vail Mutual Ass’n v. Shrewsbury, supra, 58 N. J. at 52; Robson v. Rodriguez, supra, 26 N. J. at 526; General Public Loan Corp. v. Director, Div. of Taxation, 13 N. J. 393, 401 (1953); Robinson v. Cahill, supra, 119 N. J. Super. at 48-49, and hence void.

Plaintiffs have failed to carry their burden of proving this statute unconstitutional. The Legislature has found “that adequate commuter and passenger railroad service is essential to the welfare of the State and constitutes, on a comparative basis, the most efficient means for the movement of people during the rush hour. (L. 1959, c. 14, § 1).” Bayonne v. Palmer, 90 N. J. Super. 245, 261 (Ch. Div. 1966), aff’d 47 N J. 520 (1966). See also Wilson v. Long Branch, supra, 27 N. J. at 377—378. The Legislature enacted this statute both to attempt to insure the continuing economic viability of this form of transportation (the current financial position of defendant is a good example of how tenuous the situation in this regard currently is) and to attempt to deter certain forms of dangerous conduct on its trains. While this court may question the need for such legislation in the light of our existing principles of negligence law (see, for example, Powell v. Erie R. R. Co., 70 N. J. L. 290, 293 (E. & A. 1903), where the court seemed to express doubt as to any need for statutory support for the proposition “that a person injured while jumping on or off a train in motion is guilty of contributory negligence”), “the courts will not pass judgment upon the wisdom of the Legislature in enacting a law, but will only ascertain if the Legislature has kept within its powers. State v. Garden State Racing Ass’n, 136 N. J. L. 173 (E. & A. 1947).” Sarner v. Union Tp., supra, 55 N. J. Super. at 533; Brown v. Heymann, supra, 62 N. J. 10-11; Texas Co. v. Di Gaetano, supra, 71 N. J. Super. at 431.

The court is mindful that “legislative inaction can mean only that the Legislature did not act,” and is not dispositive of the question of intent when a- statute was originally passed, which “is a judicial question as to which neither the action nor inaction of a subsequent Legislature can be dis-positive,” Schmoll v. Creecy, 54 N. J. 194, 203 (1969), but where the constitutional validity of a statutory provision is challenged “it is the policy of our law not to invalidate a statute which has been in force without substantial change for many years, unless its unconstitutionality is obvious.” Williams v. Smith, 94 N. J. Super. 341, 346 (App. Div. 1967), aff'd 51 N. J. 161 (1967). We can feel certain sympathy for plaintiffs who may be barred by the statute from any compensation for their injury, a sympathy which may be evoked whenever a defense of contributory negligence is successful. Yet other legitimate public interests are furthered by this statute and “the assumed injury to the individual is presumed to be offset by the benefit accruing to him as one of the public at large. Earruso v. Board of Health, East Hanover, 120 N. J. L. 463 (Sup. Ct. 1938).” Lincoln Park v. Cullari, 15 N. J. Super. 210, 215 (App. Div. 1951).

To repeat, the determination of what constitutes a valid public purpose and the selection of the means to achieve that purpose are matters peculiarly within the judgment of the Legislature. The legislative decision * * * that the purpose to be served by a particular enactment is a valid public purpose is a conclusion entitled to great weight by the courts. It should not be set aside unless there is no reasonable basis for sustaining it.
* * *
It must be remembered that the greatest danger to people from the exercise of the judicial power is that there may be a usurpation by the courts of the people’s right to express in law * * * their collective reasoning. Rights are fragile. A personal determination cannot be substituted for the law because it accords with a judge’s own feelings or pleases a special interest group at the moment. Our obligation is to dispassionately apply the people’s will, as expressed through the democratic process consisting of the legislative vote. The law when enacted must be constitutional, [and remains so]. [N. J. Sports & Exposition Authority v. McCrane, supra, 119 N. J. Super. at 476-477]

Plaintiffs’ motions to strike the enumerated affirmative defenses are denied. Plaintiffs’ motions in the alternative for summary judgment are also denied, for there are genuine issues of material fact, particularly with regard to the issue of contributory negligence, still requiring disposition at trial. Judson v. People’s Bank & Trust Co. of West-field, 17 N. J. 67, 73 (1954).


author: Fritz, J. A. D.

text:
    DOROTHY ANSLINGER, PETITIONER-APPELLANT, v. CARTER WALLACE, RESPONDENT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued May 14, 1973
    Decided June 1, 1973.

      Before Judges Fritz, Lynch and Trautwein.

      Mr. George H. Conover, Jr. argued the cause for appellant (Messrs. Levinson, Conover, Fink & Axelrod, attorneys).

      Mr. Thomas H. Green argued the caused for respondent.
   The opinion of the court was delivered by

Fritz, J. A. D.

Petitioner appeals from the dismissal of her dependency claim petition in the Workmen’s Compensation Division. The judge of compensation found and concluded that decedent’s intoxication was the sole cause of the automobile accident, occurring following his attendance at a business dinner subsequent to which he had done further drinking elsewhere, which claimed his life.

The finding of fact as to decedent’s intoxication is amply supported in the evidence. The record is replete with overwhelming testimony as to decedent’s staggeringly and unbelievably inebriated state. Among the many factors mandating such a conclusion are, for instance, the fact that his blood alcohol was measured at .312%, and the fact that the accident occurred when decedent drove his automobile into and under the rear of a tractor-trailer truck as both were moving along Route 22 in a westerly direction in Bridgewater Township.

Indeed, even now appellant’s counsel not only does not dispute this gross intoxication, but concedes it. He argues, however, as he did below, that since an automobile was the instrumentality causing the death, intoxication was not the sole cause of the accident, and liability, therefore, cannot be avoided on this ground. The judge of compensation rejected this argument, as do we.

We realize that the emploj'er had an interest in the decedent attending the function involved and 'that it should bear the risk of injuries incidental to the event and to the going to and coming therefrom. Ricciardi v. Damar Products Co., 45 N. J. 54 (1965). We are also aware that the risk need not exceed a “usual and common one” to permit compensability. Cf. and contrast Henderson v. Celanese, 16 N. J. 208 (1954), overruled by George v. Great Eastern Food Products, Inc., 44 N. J. 44 (1965). But we do not deny compensation on the basis that the accident did not arise out of or in the course of the employment or that the death was not causally related to the injury. We deny compensation because N. J. S. A. 34:15 — 7 excludes otherwise compensable injuries “when intoxication is the natural and proximate cause” thereof. As against appellant’s argument that this exclusionary provision does not apply because the use of an automobile was involved and this factor combined with the incredible intoxication to produce the injury, we observe that to adopt this position would result in the exclusion applying only if a workman died of or was disabled from alcoholism. We cannot conceive that the Legislature intended such a narrow meaning. To hold as appellant suggests would be, in effect, to strike from the books the legislative enactment, for if it was not intoxication here solely responsible for the injury, it is unlikely that it shall ever be.

We arrive at this conclusion without offending the long-standing concept that the intoxication must be “the” natural and proximate cause, not simply a contributory or concurring cause. Kulinka v. Flockhart Foundry Co., 9 N. J. Super. 495 (Cty. Ct. 1950), aff’d sub nom. Bujalski v. Flockhart Foundry Co., 16 N. J. Super. 249 (App. Div. 1951), certif. den. 8 N. J. 505 (1952). In Kulinka, concurrence was demonstrated by the presence of hazards or risks incidental to the employment contributing efficiently to the production of the accident. It was there observed that the employment might supply a setting, a stage, a situation, without necessarily constituting a concurring cause. Concurrency vel non of an employment factor might be tested - — ■ although possibly not invariably controlled — by whether the specific hazard involved in the accidental occurrence existed for the sober as well as the intoxicated.

Such a rule would, of course, bring the ordinary hazards of driving within the ambit of employment factors as thus defined. But we will not extend this generous view of employment risks to the hazard,of driving into and under the rear of a tractor-trailer truck proceeding in the same direction on a multi-lane highway.

It is interesting to- note that in all the New Jersey cases cited to us by appellant, there remained at the end at least some substantial question of proof with respect to the fact of intoxication. Olivera v. Hatco Chemical Co., 55 N. J. Super. 336 (App. Div. 1959), certif. den. 30 N. J. 557 (1959); Kelly v. Hackensack Water Co., 23 N. J. Super. 88 (App. Div. 1952); O’Reilly v. Roberto Homes, Inc., 31 N. J. Super. 387 (App. Div. 1954). As has been noted, here the absolute nature of the intoxication was abundantly apparent and its fact is conceded.

To the extent that the New York cases cited to us are inconsistent with our holding here, we differ. Brame v. Alcar Trucking Company, 31 App. Div. 2d 881, 297 N. Y. S. 2d 378 (App. Div. 1969); Post v. Tennessee Products & Chemical Corp., 19 App. Div. 2d 484, 244 N. Y. S. 2d 389 (App. Div. 1963), aff’d 14 N. Y. 2d 796, 251 N. Y. S. 2d 32, 200 N. E. 2d 213 (Ct. App. 1964); Cliff v. Dover Motors, Inc., 11 App. Div. 2d 883, 202 N. Y. S. 2d 914 (App. Div. 1960), aff’d 9 N. Y. 2d 891, 216 N. Y. S. 2d 703, 175 N. E. 2d 831 (Ct. App. 1961). It is to be seen that the latter two cases involved dissents in both courts. We agree with the observation of Justice Herlihy in one of these, adopted by reference by the dissent in the Court of Appeals, that, “It could not be the intendment of the Legislature to have the word ‘solely’ become a barrier to the practicalities of life.” Post, supra, 244 N. Y. S. 2d at 393-394.

Appellant also contends that the employer’s expectation that appellant would attend dinners where drinks would be served estops it from asserting intoxication. The argument is frivolous. We have assumed that the accident in question arose out of and in the course of the employment, agreeably with the findings below (although the decedent’s attendance at a second function that evening made the issue at least arguable). That employment cannot in any sense have been said either to suggest, encourage, or anticipate intoxication. Estoppel is not appropriate. Tate v. Industrial Accident Comm’n., 120 Gal. App. 2d 657, 261 P. 2d 759 (1953), in which the employer participated with the employee in the latter’s imbibing, even to the extent of buying drinks, is factually distinguishable.

Affirmed.


text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. WILLIAM ORTIZ, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued May 14, 1973
    Decided June 8, 1973.

      Before Judges Lora, Allcorn and Handler.

      Mr. Charles E. Carlson, Jr., argued the cause for the appellant (Mr. Stanley C. Van Ness, Public Defender, attorney) .

      Mr. Dante P. Mongiardo, Assistant Prosecutor, argued the cause for the respondent (Mr. Joseph D. J. Gourley, Prosecutor of Passaic County, attorney).
   Per Curiam.

Defendant appeals his convictions of the charges of robbery, while armed, and possession of a dangerous knife.

He asserts as plain error, (1) the portion of the charge which instructed the jury “that if the * * * [defendant and his codefendant brother] were attempting to collect a debt, this would not be a defense to the charge of robbery and robbery while armed,” and (2) failure to “instruct the jury that in order to constitute possession of a dangerous instrument, the knife must have * * * been concealed.” Defendant also urges that there was error “in failing to dismiss the possession indictment as it merged into the robbery while armed indictment.”

In support of his first contention defendant cites the case of People v. Butler, 65 Cal. 2d 569, 55 Cal. Rptr. 511, 421 P. 2d 703 (Sup. Ct. 1967), holding improper comment of the prosecutor in summation to the effect that, where money was taken by force, even though taken with intent only of recovering mono}’ owed to the assailant, the taking constituted robbery. A divided court, in reversing a felony-murder conviction, there stated:

Although au intent to steal may ordinarily be inferred when one person takes the property of another, particularly if he takes it by force, proof of the existence of a state of mind incompatible with an intent to steal precludes a finding of either theft or robbery. It has long been the rule in this state and generally throughout the country that a bona fide belief, even though mistakenly held, that one has a right or claim to the projjerty negates felonious intent. * - * [55 Cal. Rptr. at 514, 421 P. 2d, at 706]

A review of the authorities, however, reveals that the proposition so espoused by the California court is little more than a relic of days long past, which did not then and does not now enjoy anything like the universal acceptance suggested by the sweeping language of the majority opinion in Butler. The most recent annotation in 1956, discloses the proposition to have been adopted or applied in only 11 jurisdictions in the United States, commencing in 1816 in Ohio, followed by Iowa (1875), Missouri (1891), Utah (1895), Colorado (1920), Texas (1921), Oklahoma (1923), Virginia (1926), California (1927), Arizona (1935) and Kentucky (1937); and applied in England in 1864. Annotation, “Robbery or assault to commit robbery as affected by intent to collect or secure debt or claim,” 46 A. L. R. 2d 1227 (1956).

Moreover, in those jurisdictions which, since 1937, have had occasion to examine the question as a matter of first impression, all have rejected it — with the exception of a single federal case, decided by a divided three-judge court. Moyers v. State, 186 Ga. 446, 197 S. E. 846 (Sup. Ct. 1938); People v. Uselding, 107 Ill. App. 2d 306, 247 N. E. 2d 35 (App. Ct. 1969); State v. Pierce, 208 Kan. 19, 490 P. 2d 584 (Sup. Ct. 1971); Edwards v. State, 49 Wis. 2d 105, 181 N. W. 2d 383 (Sup. Ct. 1970); Richardson v. United States, 131 U. S. App. D. C. 168, 403 F. 2d 574 (D. C. Cir. 1968). Although the existence of the proposition was noted in passing in the case of State v. Mayberry, 52 N. J. 413, 431 (1968), cert. den. 393 U. S. 1043, 89 S. Ct. 673, 21 L. Ed. 2d 593 (1969), our Supreme Court found no occasion to make a determination with respect to it.

In our view, the proposition not only is lacking in sound reason and logic, but it is utterly incompatible with and has no place in an ordered and orderly society such as ours, which eschews self-help through violence. Adoption of the proposition would be but one step short of accepting lawless reprisal as an appropriate means of redressing grievances, real or fancied. We reject it out of hand.

There is likewise no merit in defendant’s remaining contentions. Concealment is not an essential ingredient of the offense of possession of a dangerous instrument, State v. Hock, 54 N. J. 526 (1969). In view of the circumstance that defendant was found in possession of the knife when he was apprehended an appreciable time subsequent to the robbery, and the further fact that the proofs showed that, at the time of the commission of ihe robbery, defendant’s brother was in possession of a gun with which he threatened the victim, there was no merger of the knife possession charge with the armed robbery charge, inasmuch as proof of possession of the knife by this defendant at the time of the commission of the' robbery was not essential in order to establish his guilt of the charge of robbery, while armed. State v. Thomas, 61 N. J. 314 (1972); State v. Leibowitz, 22 N. J. 102 (1956).

Affirmed.

      See, for example, the provisions of the Uniform Commercial Code, wherein a creditor holding a nonpossessory security interest in collateral, upon the default of his debtor is permitted to take possession of the collateral by means of self-help only “if this can be done without breach of the peace,” N. J. S. A. 12A:9-503. But of., §§ 2C:20-2(c) and 2C:19-1 of proposed N. J. Penal Code, and commentary thereon, contained in Final Report of New Jersey Criminal Law Revision Commission (1971).


author: Trautwein, J. A. D.

text:
    THE STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. WILLIAM R. PICKENS, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Submitted March 19, 1973
    Decided June 8, 1973.

      Before Judges Fritz, Lynch and Trautwein.

      Mr. Carl Klein, attorney for appellant.

      Mr. George F. Kugler, Jr., Attorney General of New Jersey, attorney for respondent {Mr. John De Cicco, Deputy Attorney General, of counsel and on the brief).
   The opinion of the Court was delivered by

Trautwein, J. A. D.

This appeal challenges the constitutionality of N. J. 8. A. 39:3-40 which provides for a mandatory jail sentence of not less than 45 days for a person operating a motor vehicle while on the revoked list if such person while so operating a vehicle is involved in an accident resulting in personal injury.

Pacts have been stipulated. Defendant concedes his license was revoked. He further concedes that, while his license was thus revoked he operated his motor vehicle and that during its operation an accident occurred with another vehicle resulting in injuries to both drivers, those of the other driver being more extensive than defendant’s.

At the municipal court level defendant was fined $200, with court costs of $10, and sentenced to 45 days in the county jail. On his appeal to the County Court, on the same stipulated facts as hereinabove recited, defendant challenged the constitutionality of that portion of the statute mandating a minimum jail sentence of 45 days. The County Court found defendant guilty and imposed a sentence identical to that in the municipal court plus an additional $20 court costs on the appeal.

Defendant contends that the mandatory prison sentence portion of the statute is unconstitutional on the grounds that legislative imposition of “criminal redress” for a civil wrong is an abuse of discretion and that it works a denial of due process through inherent vagueness and uncertainty of legislative intent.

The thrust of defendant’s first contention is that the mandatory jail term is imposed for the commission of an unintentional tort — negligence — which is noncriminal in nature, and thus by directing a prison sentence the Legislature has wrongfully converted a civil wrong into a crime. This argument fails. A defendant convicted under the statute here involved may still have to face a civil suit for damages brought by the driver of the other car, cast in negligence. Our common law provides for that relief. The statute here involved is designed for separate and distinct purposes — punishment and deterrence to the end that the public be protected. Cf. State v. Smith, 58 N. J. 202 (1971); Vance v. State, 67 N. J. Super. 63, 67 (App. Div. 1961). Thus the action is brought in the name of the State. To this end it has been held that the Legislature possesses broad discretion to impose both a criminal and civil or administrative sanction in respect to the same act or omission. Atkinson v. Parsekian, 37 N. J. 143, 154 (1962). Consistent with this proposition are an abundance of decisions characterizing proceedings to enforce Title 39 as gtiosi-criminal in nature. State v. Zucconi, 93 N. J. Super. 380, 384 (App. Div. 1967), and cases therein cited.

Finally, on this point, defendant’s emphasis on being jailed for involvement in an accident resulting in injury is misplaced. The gravamen of the offense here charged is driving on the revoked list. The fact that an accident occurs and injury results is an aggravating circumstance clearly reognized by the Legislature and correspondingly providing for a harsher punishment.

As to defendant’s second contention that the statute is inherently vague to the point of a denial of due process, we find no merit. He offers a variety of hypothetical cases through which run common threads of either no fault on the accused’s part or injury only to himself, as for example, driving on the revoked list and being hit in the rear while stopped or hitting a tree with injury only to himself. The fact is that such was not the case in this instance. Moreover, we do not believe that defendant had standing to raise these hypothetical eases within the context of his theory of error.

A contention that a statute violates due process because of vagueness is based on the theory the defendant had no fair warning that his conduct was proscribed. Thus, a defendant whose conduct was such that he clearly could tell it was prohibited will not be heard to say that the statute is overly broad in that another, in some hypothetical case, could be misled. [State v. Moretti, 52 N. J. 182, 192 (1968)]

It is abundantly clear that the conduct proscribed in N. J. S. A. 39 :3-40 is not a departure from the standard of care of an ordinary prudent motor vehicle operator — negligence —• but rather driving an automobile while one’s license is revoked. Furthermore, one is unmistakenly warned that if he so conducts himself in violation of the statute, which results in an accident with bodily injury, such aggravating circumstances mandate the imposition of a jail sentence.

Thus reviewing the statute, we perceive no vagueness of any nature, let alone one arising to constitutional dimensions.

Affirmed.


author: Consodine, J. S. C.

text:
    JUDITH EDELMAN, PLAINTIFF, v. WARREN EDELMAN, DEFENDANT.
    Superior Court of New Jersey Chancery Division
    Decided May 25, 1973.

      Mr. Kerman S. Ziegler for plaintiff.

      Mr. Monroe Ackerman for defendant (Messrs. Rudd and Ackerman, attorneys).
   Consodine, J. S. C.

A plenary hearing was required to resolve the contested issues of fact. Hallberg v. Hallberg, 113 N. J. Super. 305 (App. Div. 1971).

On the plenary hearing the court finds that in April 1968 when the agreement was executed defendant was employed at an annual salary of $33,000; that this salary increased to $39,350 in 1970; that he was subsequently discharged; that his separation pay of $3,370.50 a month ceased in June 1971; that he last regularly paid plaintiff in accordance with the agreement in 1971; that since that date he made sporadic payments from borrowed money so to avoid incarceration on plaintiff’s demands in contempt; that there were no arrears as of the filing of the first motion for modification on May 5, 1971; that on March 1, 1973 the arrears were $18,450; that plaintiff’s gross income in 1973 was approximately $38,000; that money available to plaintiff to spend in both 1971 and 1973 is substantially more than her taxable income and that the same is not true of defendant (defendant and his present wife have a current income of less than $9,000 per year); that living with plaintiff and three children in the former marital home (now in plaintiff’s name alone) is an identified married man; that the relationship is an admittedly meretricious one with a miniscule payment of room and board to cover the amenities in a brief way; that a portion of defendant’s monthly payment, whether paid currently or by way of arrears, would necessarily enure to the benefit of plaintiff’s paramour. Here, as in other disciplines, there would have to be applied the doctrine of “cumulative effect,” with the outcome that these findings of fact constitute such changed circumstances as to mate it unconscionable for a court of equity to enforce specifically the agreement. Berkowitz v. Berkowitz, 55 N. J. 564 (1970); Schiff v. Schiff, 116 N. J. Super. 546 (App. Div. 1971), certif. den. 60 N. J. 139 (1972).

The court cannot discover in the above-related findings of fact, conditions or subsequent events which should have been in the parties’ contemplation in making their agreement and that would now demand specific performance. Froelich v. K. W. W. Holding Co., 201 App. Div. 855, 192 N. Y. S. 925 (App. Div. 1922); Franklin Teleg. Co. v. Harrison, 145 U. S. 459, 12 S. Ct. 900, 36 L. Ed. 776 (1892). No agreement, however skillfully prepared, can ever encompass all possible contingencies. That is why specific performance is an equitable remedy.

The contract and the situation of the parties must be such that the remedy of specific performance will not be harsh or oppressive. Such hardship may result from the situation of the parties unconnected with the terms of the contract, that is, from external facts or events or circumstances which control or affect the defendant’s situation. 4 Pomeroy, Equity Jurisprudence (5th ed. 1941), §§ 1400-1410.

Agreements between husband and wife, executed voluntarily and understanding^ for the purposes of settling issues of alimony and support, are specifically enforceable but only to the extent that they are just and equitable under the inherent and inherited jurisdiction of the Court of Chancery now exercised by our Superior Court. Schlemm v. Schlemm, 31 N. J. 557 (1960). A hiatus occurred between 1932 (Apfelbaum v. Apfelbaum, 111 N. J. Eq. 529 (E. & A. 1932)) and 1960 (Schlemm v. Schlemm, supra), during which our courts restricted specific performance of these agreements — a course described in Schlemm as “an unnecessary departure from fundamental principles of equitable jurisdictions” (31 N. J. at 581).

Schiff, supra, stressed that a showing of changed circumstances sufficient to warrant modification of a voluntary agreement between spouses must be such as to convince the court that enforcement would be unconscionable. See also, Berkowitz v. Berkowitz, supra; Equitable Life Assur. Soc. of United States v. Huster, 75 N. J. Super. 492 (App. Div. 1962); Flicker v. Chenitz, 55 N. J. Super. 273, 292 (App. Div. 1959), certif. granted, 30 N. J. 152, app. dism. by consent, 30 N. J. 566 (1959); Schluter v. Schluter, 23 N. J. Super. 409 (App. Div. 1952); Johnson v. Hubbell, 10 N, J. Eq. 332, 342 (Ch. 1854); 11 N. J. Practice (Herr, Marriage, Divorce and Separation) (3rd ed. 1963), § 801; Dressier, Current N. J. Court Rules, 720. This Court is so convinced. It may be easy to define substantial change in circumstances and unconscionability but the application of either definition in a given factual situation is often difficult.

On the findings of fact I conclude as a. matter of law that terms of the agreement between the parties be revised so as to reduce the allocated sum of $1,000 a month for alimony and support to $35 a week for each child from July 1, 1971. See Tancredi v. Tancredi, 101 N. J. Super. 259 (App. Div. 1968); Liss v. Liss, 19 N. J. Super. 358 (App. Div. 1952); Madden v. Madden, 136 N. J. Eq. 132 (E. & A. 1945); Slep v. Slep, 43 N. J. Super. 538 (Ch. Div. 1957). The duty of support of the children of a marriage devolves on both parents, N. J. S. A. 2A:34-23.


author: Lane, J. S. C.

text:
    JAMES V. KOCHMAN AND JOHN N. GISH, JR., INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, PLAINTIFFS, v. KEANSBURG BOARD OF EDUCATION AND PARAMUS BOARD OF EDUCATION, INDIVIDUALLY AND ON BEHALF OF ALL OTHER SCHOOL BOARDS SIMILARLY SITUATED; CARL L. MARBURGER, IN HIS CAPACITY AS COMMISSIONER OF EDUCATION, DEFENDANTS.
    Superior Court of New Jersey Chancery Division
    Argued May 29, 1973
    Decided May 31, 1973.

      Mr. Edward Carl Broege argued the cause for plaintiffs (Messrs. Ball, Broege, Elwell, Livingston & Roberts, Attorneys; Ms. Anne W. Elwell, on the brief).

      Mr. Patrick D. Mealy argued the cause for defendant Keansburg Board of Education (Messrs. Healy & Falk, Attorneys).

      Mr. Joseph A. Rizzi argued the cause for defendant Para-mus Board of Education (Messrs. Winne A Banta, Attorneys).

      Mr. Lewis M. Popper, Deputy Attorney General, argued the cause for defendant Carl L. Marburger, Commissioner of Education (Mr. George F. Kugler, Jr., Attorney General, Attorney).
   Lane, J. S. C.

This action challenging the constitutionality of N. J. 8. A. 18A :16-2 is before the court on final hearing.

N. J. S. A. 18A:16-2 provides:

Every board of education shall require all of its employees, and may require any candidate for employment, to undergo a physical examination, the scope whereof shall be determined under rules of the state board, at least once in every year and may require additional individual psychiatric or physical examinations of any employee, whenever, in the judgment of the board, an employee shows evidence of deviation from normal, physical or mental health.
Any such examination may, if the board so requires, include laboratory tests or fluoroscopic or X-ray procedures for the obtaining of additional diagnostic data.

In considering the validity of that statute the following pertinent sections must be kept in mind:

18A :16-3. Character of examinations
Any such examination may be made by a physician or institution designated by the board, in which case the cost thereof and of all laboratory tests and fluoroscopic or X-ray procedures shall be borne by the board or, at the option of the employee, they may be made by a physician or institution of his own choosing, approved by the board, in which case said examination shall be made at the employee’s expense.
18A:16-4. Sick leave; dismissal
If the result of any such examination indicates mental abnormality or communicable disease, the employee shall be ineligible for further service until proof of recovery, satisfactory to the board, is furnished, but if the employee is under contract or has tenure, he may be granted sick leave with compensation as provided by law and shall, upon satisfactory recovery, be permitted to complete the term of his contract, if he is under contract, or be reemployed with the same tenure as he possessed at the time his services were discontinued, if he has tenure, unless his absence shall exceed a period of two years.
18A :16-5. Records of examination
All records and reports relating to any such examination shall be the property of the board and shall be filed with its medical inspector as confidential information but shall be open for inspection by officers of the state department of health and the local hoard of health.

Plaintiffs contend that the term “deviation from normal * * * mental health” is an all-embracing term which is not limited to a relationship of employment by the board of education and, therefore, the statute is unconstitutional for overbreadth. They further contend that the term “deviation from normal * * * mental health” is not a recognized medical term; that there is no definition or indication of the sort of acts that might constitute such deviation, and that therefore the statute is unconstitutional for vagueness. In addition, it is contended that the statute is an unconstitutional invasion of a teacher’s right of privacy. Finally, plaintiffs allege that the statute is invalid because it fails to provide adequate standards to govern the action of the board of education in requiring a psychiatric examination.

A legislative enactment is presumed to be constitutional, and the burden is on the party challenging it to prove otherwise. Jamouneau v. Harner, 16 N. J. 500, 515 (1954). A statute will not be declared invalid unless it is plainly in contravention of a constitutional mandate or prohibition. Even though a statute may be open to a construction which would render it unconstitutional or permit its unconstitutional application, it is the duty of the court to construe the statute so as to render it constitutional if it is reasonably susceptible of such a construction. State v. Profaci, 56 N. J. 346, 349-350 (1970). If a statute is reasonably appropriate in its overall approach, it will be upheld notwithstanding that it may be invalid in its application in special circumstances or fringe areas. State v. Monteleone, 36 N. J. 93, 99 (1961). Of two interpretations of the language of a statute, the one that renders the act constitutional will be deemed to express the legislative intent. Clifton v. Passaic County Board of Taxation, 28 N. J. 411, 422 (1958). In sum, a legislative act will not be declared void unless its repugnancy to the Constitution is clear beyond a reasonable doubt. Harvey v. Essex County Board of Chosen Freeholders, 30 N. J. 381, 388 (1959).

In construing a statute the court must look to the true intent of the law. In Alexander v. N. J. Power & Light Co., 21 N. J. 373 (1956), the court stated:

The statute is to receive a reasonable construction, to serve the apparent legislative purpose. The inquiry in the final analysis is the true intention of the law; and, in the quest for the intention, the letter gives way to the rationale of the expression. The words used may be expanded or limited according to the manifest reason and obvious purpose of tile law. The spirit of the legislative direction prevails over the literal sense of the terms. The particular words are to be made responsive to the essential principle of the law. When the reason of the regulation is general, though the provision is special, it has a general acceptation. The language is not to be given a rigid interpretation when it is apparent that such meaning was not intended. The rule of strict construction cannot be allowed to defeat the evident legislative design. The will of the lawgiver is to be found, not by a mechanical use of particular words and phrases, according to their actual denotation, hut by the exercise of reason and judgment in assessing the expression as a composite whole. The indubitable reason of the legislative terms in the aggregate is not to be sacrificed to scholastic strictness of definition or concept. * * * [at p. 378]

A law forbidding or requiring conduct in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates due process of law. Baggett v. Bullitt, 377 U. S. 360, 367, 84 S. Ct. 1316, 12 L. Ed. 2d 377 (1964). To meet the requirements of due process, a law must not be so vague that it leaves the public uncertain as to what conduct it prohibits or leaves judges and jurors free in each particular case to decide without any legally fixed standards what is prohibited and what is not. Giaccio v. State of Pennsylvania, 382 U. S. 399, 402-403, 86 S. Ct. 518, 15 L. Ed. 2d 447 (1966). Living under a rule of law entails various suppositions, one of which is that all persons are entitled to be informed as to what the state commands or forbids. Papachristou v. City of Jacksonville, 405 U. S. 156, 92 S. Ct. 839, 843, 31 L. Ed. 2d 110 (1972); Lanzetta v. State of New Jersey, 306 U. S. 451, 453, 59 S. Ct. 618, 83 L. Ed. 888 (1939); Loba v. Newark Board of Education, 23 N. J. 364, 385—386 (1957); Handelsman v. Div. of N. J. Real Estate Comm., 101 N. J. Super. 244, 248 (App. Div.), certif. den. 52 N. J. 485 (1968); State v. Caez, 81 N. J. Super. 315, 318-321 (App. Div. 1963).

Vagueness has been found not only in the lack of notice of what the statute commands or forbids but also in the delegation of unfettered discretion to the enforcing authority. See Papachristou v. City of Jacksonville, supra, 405 U. S. at 167, 92 S. Ct. at 846. The statutory standards must be sufficient to guide the enforcing authority. Laba v. Newark Board of Education, supra, 23 N. J. at 385-386.

Even where a statute is found not to be vague by these tests, it may still be considered void for overbreadth if it offends the constitutional principle that a governmental purpose to control or to prevent activities subject to state regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade an area of protected freedoms. Cameron v. Johnson, 390 U. S. 611, 616-617, 88 S. Ct. 1335, 20 L. Ed. 2d 182 (1968); Zwickler v. Koota, 389 U. S. 241, 250, 88 S. Ct. 391, 19 L. Ed. 2d 444 (1967). However, the mere fact that a fundamental right is intermingled with the conduct sought to be controlled does not render the regulatory statute overbroad where it is directed toward protecting an important societal interest, i. e., where there is a compelling state interest at stake. To fail for over-breadth, a statute must so regulate conduct that it impinges on a fundamental right in an unnecessarily broad way, that is, beyond the public’s need for protection. See Cameron v. Johnson, supra, 390 U. S. at 617, 88 S. Ct. 1335; Cox v. State of Louisiana, 379 U. S. 559, 564, 85 S. Ct. 476, 13 L. Ed. 2d 487 (1965); Anderson v. Sills, 56 N. J. 210, 226-227 (1970); DeStefano v. Wilson, 96 N. J. Super. 592, 602 (Law Div. 1967).

Plaintiffs suggest that in its application the challenged statute impinges on rights of association, expression and privacy. Such rights are clearly fundamental ones, protected by the First Amendment in particular, and by the Bill of Rights and its penumbras as a whole. Stanley v. Georgia, 394 U. S. 557, 564, 89 S. Ct. 1243, 22 L. Ed. 2d 542 (1969); Elfbrandt v. Russell, 384 U. S. 11, 18, 86 S. Ct. 1238, 16 L. Ed. 2d 321 (1966); Griswold v. State of Connecticut, 381 U. 8. 479, 483, 85 S. Ct. 1678, 14 L. Ed. 2d 510 (1965); Baggett v. Bullitt, supra, 377 U. S. at 366-370, 84 S. Ct. 1316; Shelton v. Tucker, 364 77. S. 479, 485-486, 81 S. Ct. 247, 5 L. Ed. 2d 231 (1960). See Hamilton v. N. J. Real Estate Commission, 117 N. J. Super. 345, 347 (App. Div. 1971); DeStefano v. Wilson, supra, 96 N. J. Super. at 597. A statute touching those protected rights must he narrowly' drawn to define and punish specific conduct as constituting a clear and present danger to a substantial state interest. Elfbrandt v. Russell, supra, 384 U. S. at 18, 86 S. Ct. 1238; Cantwell v. State of Connecticut, 310 U. S. 296, 311, 60 S. Ct. 900, 84 L. Ed. 1213 (1940). Legitimate legislative goals cannot he pursued hy means that broadly stifle fundamental personal liberty when the end can be narrowly achieved. Shelton v. Tucker, supra, 364 U. S. at 488, 81 S. Ct. 247. See Keyishian v. Board of Regents of U. of St. of N. Y., 385 U. S. 589, 603-604, 87 S. Ct. 675, 1 7 L. Ed. 2d 629 (1967); State v. Caez, supra, 81 N. J. Super. at 318-319. Such si ate intrusions into constitutionally protected areas including the emerging right of privacy must he founded on a compelling stale interest which overrides private rights. Young Women's Christian Ass'n of Princeton, N. J. v. Kugler, 342 F. Supp. 1048, 1072-1073 (D. N. J. 1972).

It is the duty of the court to construe a statute so as to render it constitutional if that can ho done. Camarco v. City of Orange, 61 N. J. 463, 466 (1972); Coleman v. Wilson, 123 N. J. Super. 310, 316 (Ch. Div. 1.973). Plaintiffs suggest that this Judicial principle does not apply to statutes which may violate First Amendment rights. Their suggestion, however, is not warranted. State v. George Brown, 62 N. J. 588 (1973). The term “deviation from normal * * * mental health” as used in N. J. S. A. 18A :16-2 is construed to mean harmful, significant deviation from mental health affecting the teacher’s ability to teach, discipline or associate with children of the age of the children subject to the teacher’s control in the school district.”

The legislature has delegated to boards of education the authority to determine whether a teacher is fit to teach in general terms. These general terms were held in Laba v. Newark Board of Education, supra, 23 N. J. 364, to provide sufficient standards for application. In N. J. 8. A. 18A :16-2 the legislature has delegated to boards of education the power to request a teacher who shows evidence of harmful, significant deviation from normal mental health affecting the teacher’s ability to teach, discipline or associate with children of the age of the children subject to the teacher’s control in the school district to submit to a psychiatric examination. As this court has construed the statute, it has delineated in as narrow terms as possible another area of unfitness which a teacher may evidence by his behavior. The legislature has, however, recognized that although a board of education may observe signs of what it considers a harmful, significant deviation, it does not have the expertise to question the teacher on the matter itself but must rely on the expertise of a psychiatrist. The grant of power to a board of education to require such an examination is viewed merely as an extension of the board’s authority to require a teacher to answer questions at a hearing on general unfitness, held proper in Laba v. Newark Board of Education, supra, 23 N. J. 364. The legislature is concerned with protecting school children from the influence of unfit teachers. Protection of school children from teachers who have shown evidence of harmful, significant deviation from normal mental health is without question not only a valid legislative concern but one classifiable as a compelling state interest. This being so, the fact that the statute may intrude upon a teacher’s rights of association, expression and privacy does not render it unconstitutional. As interpreted by this court, the statute contains sufficient standards to guide the board’s action and also offers individual teachers a sufficient indication of what behavior may result in board action.

Plaintiffs have implied that the statute deprives them of due process because it contains no right to a hearing before an examination is ordered. A directive dated February 2, 1972 from the Assistant Commissioner of Education to all County Superintendents states:

N. J. S. A. 18A: 16-2 permits a board of education to require individual psychiatric or physical examination of any employee, whenever, in the judgment of the board, an employee shows evidence of deviation from normal physical (communicable disease) or mental health.
It is important that boards be advised, when necessary, that this statute is construed to mean that any individual of whom such an examination is required should be given the reason or reasons therefore by the board and also the right to be heard by the board before the statute is applied.

Before a teacher is ordered to submit to a psychiatric examination, he is entitled to a statement of the reasons for such examination, cf., Monks v. N. J. State Parole Board, 58 N. J. 238, 249-250 (1971), and to a hearing, if requested, cf., Williams v. Sills, 55 N. J. 178, 186 (1970); R. R. v. Bd. of Ed., Shore Reg. H. S., 109 N. J. Super. 337, 347-348 (Ch. Div. 1970). The procedure prescribed in the directive if followed would provide adequate due process to teachers. However, the directive is precatory and not mandatory in its terms. The requirement of a statement of reasons and a hearing, if requested, is constitutionally mandated.

N. J. S. A. 18A:16~2 is constitutional. However, when a board of education intends to resort to it and requires a psychiatric examination, it must give to the teacher a statement of its reasons and must afford the teacher a hearing, if requested. It is conceded by the Commissioner that a teacher would have a right to appeal to him from an order for a psychiatric examination under N. J. S. A. 18A: 6-9 and thereafter to appeal from an adverse decision' by him to the State Board of Education under N. J. 8. A. 18A:6-27. With such procedural safeguards the application of N. J. 8. A. 18A:16-2 will not violate due process.

The statute having been construed and held constitutional and the procedure to be followed having been delineated, the validity of the orders affecting the plaintiffs will be determined by the Commissioner of Education as stipulated in the pretrial order.


text:
    ELBERT DUNSTON, PLAINTIFF, v. ISABELL DUNSTON, DEFENDANT.
    Superior Court of New Jersey Chancery Division
    Decided June 5, 1973.

      Mr. Ronald Reichstein for plaintiff (Messrs. Beck, Reich-stein and Guidone, attorneys).
   Consodine, J. S. C.

Plaintiff sues for divorce on the separation ground N. J. 8. A. 2A:34 — 2, subd. d. The parties were separated from 1961 to 1971. They lived together for four months in 1972 and again separated.

The statute, supra, conditions a judgment of divorce on primary and corroborative proof (Bolmer v. Edsall, 90 N. J. Eq. 299. (Ch. 1919)) that the parties have lived in different habitations for al least 18 or more months without a reasonable prospect of reconciliation. In the latter regard the statute creates a presumption of law that, after an 18-month period of separation, there is no reasonable prospect of reconciliation. This presumption, however, does not create a vested right to a divorce if subsequent conduct is violative of the wording of the statute. A reasonable prospect of reconciliation was created by the parties. Such a presumption disappears upon the introduction of substantial evidence by way of contradiction. In re Blakes, 21 N. J. 50 (1956); Spear v. Lyndale Mfg. Co., 35 N. J. Super. 385 (App. Div. 1955). See also, N. J. Rules of Evidence (1972 ed.), Rules 13 to 16; Wigmore on Evidence (3d ed. 1940) § 2491 at 288.

The rebuttal of the presumption applies here to the ten-year period of separation and leaves plaintiff with a lack of several months before the resurgence of another presumption under the statute.

Complaint for divorce on separation dismissed with prejudice on the facts.