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

text:
    IN RE: CHARLES ROSS PETITION FOR NOMINATION FOR GENERAL ELECTION, NOVEMBER 2, 1971, PETITION FOR STATE SENATOR SECOND SENATE DISTRICT FILED APRIL 29, 1971.
    Superior Court of New Jersey Appellate Division
    Argued September 14, 1971
    Decided September 15, 1971.

      Before Judges Lewis, Kolovsky and Halpern.

      Mr. Henry Gorelidc argued the cause for appellant, Objector John L. Toy, Jr. (Messrs. Hayman & Gorelidc, attorneys).

      Mr. Charles Boss, Candidate, argued the cause pro se.

      Mrs. Virginia L. Annich, Deputy Attorney General, argued the cause for the Attorney General (Mr. George F. Kugler, Jr., Attorney General; Mr. Dennis J. Quinn, Deputy Attorney General, on the brief).
   The opinion of the court was delivered by

Lewis, P. J. A. D.

The appeal in this controversy by John L. Toy, Jr. (objector), challenging the direct nominating petition of Charles Ross (candidate) for the office of State Senator, Second Senate District, was accelerated for oral argument on September 14, 1971. The following day we announced that a unanimous opinion of the court would be filed affirming the determination of the Secretary of State that candidate’s petition would be accepted as valid.

On April 29, 1971 candidate filed with the Secretary of State his nominating petition, for the November 2, 1971 general election, on two “sheets” which originally contained 13o signatures. Candidate reduced the number of signatures on the “sheets” to 123 when immediately before filing he voluntarily struck 12 names. On May 3 (a weekend intervening) objector, acting as a private citizen and not in his capacity as chairman of the Atlantic County Board of .Elections, filed an objection to the petition, certifying that he had examined the registry books and records of the election board and that the petition did not contain the required 100 names of registered voters in the election district. Notice thereof was forwarded by the Secretary of State’s office to the candidate on May 10.

A hearing on the objection was held on May 26 before the Assistant Secretary of State, at which time objector challenged 28 petition names — 2 for late registration, 25 for no record of registration and 1 as a subscriber who wished to withdraw her signature. The hearing was adjourned to June 25 in order to afford the candidate an opportunity to refute the objector’s claim and to afford both parties additional time to present their proofs. At the adjourned hearing objector sought to disqualify an additional three signatories, who, together with a signer who had been otherwise challenged at the May meeting, desired to have their names deleted from the petition.

At the conclusion of the second hearing the hearing officer made it clear to both parties that any additional information “that will help us make a decision” had to be submitted by June 30. On July 1 objector produced records that allegedly might support four new challenges. This evidence was rejected presumably because it was untimely submitted, candidate had not had an opportunity to rebut it and the hearing had been closed. '

The decision on behalf of the Secretary of State, rendered July 12, validated 8 and disqualified 23 of the 31 challenged signatures. The opinion concluded with the statement, “It is the decision of the Hearing Officer that the petition of Charles Ross had one hundred (100) valid signers at the shutoff date June 30th and for that reason the petition will be accepted by the Office of the Secretary of State as filed April 29, 1971.”

Here, objector attacks the nominating petition in its entirety, contending that it was not properly certified as required by law and that it was not circulated in good faith. Additionally, he maintains that the petition was signed by fewer than the required number of legally qualified voters.

First, we dispose of the arguments addressed to the petition as a whole. Each of its two component “sheets” was certified by five voters, as provided by N. J. 8. A. 19:13-6 and 7. The same five voters, however, did not certify both “sheets.” That is not required. See In re Petition of Job, 111 N. J. Super. 170, 173 (App. Div.), certif. den. 57 N. J. 124 (1970). The issue has now been squarely put to rest by the decision of our Supreme Court in In re Petition of Smith, etc., 59 N. J. 236 (September 13, 1971), holding that “The legitimate statutory objective [V. J. S. A. 19:13-7] may be met by a single verification * * * and no more.” The instant petition was adequately certified.

The record is barren of any evidence of fraud, forgery or wrongdoing such as that condemned by this court in McCaskey v. Kirchoff, 56 N. J. Super. 178 (App. Div. 1959). Objector failed to support his contention that candidate and his petition solicitors engaged in misrepresentation and concealment.

The fact that certain petition signers, who ostensibly pledged their support to Eoss, voted for party candidates in the June 8, 1971 primary election, is not, without more, evidentiary of candidate’s bad faith.

Substance is also lacking in the assertion that the candidate demonstrated bad faith in striking 12 names from his petition. It appears that candidate’s action in this regard stemmed from a desire to avoid political embarrassment to certain friends and that their signatures were stricken only after candidate discussed the matter with a representative of the Secretary of State’s office immediately prior to the filing of his petition. Nothing in the record indicates candidate’s lack of good faith or that he violated N. J. S. A. 19 :34-2. At this juncture, however, it is noted that the right of a candidate to voluntarily strike any name affixed to his nominating petition before it is filed may be seriously questioned but that issue is not before us and we do not pass upon it.

We turn now to the specific signatures challenged on appeal in support of objector’s claim that, contrary to the determination of the Secretary of State, the nominating petition was signed by fewer than the 100 legally qualified voters required by N. J. 8. A. 19 :13-5.

It is undisputed that Hughes and Costello signed the petition on April 27, 1971 and did not register to vote until April 29, 1971, the day the petition was filed. The latter date is significant because it was the final filing day for direct nominating petitions for the November 2, 1971 general election and also the registration deadline for the June 8, 1971 primary election. Consequently, Hughes and Costello were qualified to support candidate Ross by petition' as early as any citizen had to be qualified to support a party candidate in the primary election. Cf. Stone v. Wyckoff, 102 N. J. Super. 26, 35 (App. Div.), certif. den. 52 N. J. 254 (1968). Also registration on or before the final day for filing a petition presents no administrative problem with respect to an objector’s opportunity to challenge the validity of the petition, or with respect to verification of signatures by the Secretary of State. Johnson v. Reichenstein, 50 N. J. Super. 116, 122 (App. Div. 1958). These practical considerations are reinforced by the well-established principle that our election laws are to be given a liberal construction in order to effectuate a public policy in favor of the enfranchisement of voters. See e. g., Wene v. Meyner, 13 N. J. 185, 197 (1953); Kilmurray v. Gilfert, 10 N. J. 435, 440 (1952). Accordingly, we conclude that the decision of the Secretary of State not to disqualify Hughes and Costello should be sustained.

The hearing officer refused to delete the signatures. of Rinaldi, Ianarello, Raco and Laco, who had indicated a desire to withdraw their names from the petition. We find no impropriety in that determination. The general rule is that signatories to a nominating petition may not withdraw after the time for filing has expired. See 25 Am. Jur. 2d, Elections, § 173 at 868; Annotation, “Right of signer of petition or remonstrance to withdraw therefrom or revoke withdrawal, and time therefor,” 27 A. L. R. 2d 604, 622 (1953). To hold otherwise would open the door to the possibility of the use of fraud and coercion to keep political aspirants off the ballot.

Lastly, objector maintains that the hearing officer erred in refusing to consider the evidence proffered after the deadline fixed at the June 25 hearing. It is urged that at least one, if not more of the four untimely additional challenges would probably result in a disqualification and thus render the petition legally insufficient.

We are satisfied that the ruling of the hearing officer was a reasonable exercise of his administrative discretion, within the broad powers of N. J. 8. A. 19:13-11. Time is of the essence in most election controversies. Therefore, it is essential that administrative agencies responsible for the initial resolution of election disputes in which time is a crucial factor bo permitted to establish reasonable deadlines for receipt of evidence, and that reviewing courts recognize the necessity for strict adherence to these deadlines.

In the instant matter the petition was filed April 29 and the objector, who occupied an official position on the local election board, was afforded two hearing opportunities, May 26 and June 25, and an extended time to June 30, to present and sustain his objections. At the close of the second hearing candidate urged an expeditious decision because the time for campaigning was rapidly passing. The reception of challenges to additional signatures after the “shut-off date” would have necessitated, in fairness to candidate, still another hearing to afford him an opportunity to refute objector’s belated claims.

The determination of the Secretary of State is affirmed.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    BOARD OF TRUSTEES OF THE FREE PUBLIC LIBRARY OF THE CITY OF UNION CITY, ETC., ET AL., PLAINTIFFS-APPELLANTS, v. THE CITY OF UNION CITY, IN THE COUNTY OF HUDSON, A BODY CORPORATE AND POLITIC, OF THE STATE OF NEW JERSEY, ET AL., DEFENDANTS-RESPONDENTS. JOSEPH L. FREIMAN, PLAINTIFF-RESPONDENT, v. THE CITY OF UNION CITY, IN THE COUNTY OF HUDSON, A BODY CORPORATE AND POLITIC OF NEW JERSEY, JAMES LAGOMARSINO AND PAUL LOMBARDO, DEFENDANTS-APPELLANTS.
    Superior Court of New Jersey Appellate Division
    Argued September 14, 1971
    Decided September 27, 1971.

      Before Judges Kilkenny, Labbecque and Lane.

      Mr. Joseph L. Freiman argued the cause pro se as respondent and for appellants.

      Mr. Vidor P. Mullica argued the cause for respondents and cross-appellants.
   Per Curiam.

The judgment of the Chancery Division, both as to the appeal and cross-appeal, is in all respects affirmed for the reasons stated by Judge Larner in his opinion, reported in 112 N. J. Super. 484 (1970), and in his unreported opinion covering the entitlement of Mr. Freiman to $1065 for services in representing the library board of trustees.

We add only this brief supplement to clarify questions raised before us at oral argument.

The status of the attorney for plaintiffs-appellants with regard to the continued prosecution of the Board of Trustees of the Union City Library appeal need not be determined by us. His legal services for the board of trustees were terminated before oral argument; however, he continues to represent the individual plaintiffs-appellants who claim to be aggrieved by reason of a subpoena to testify before the investigating committee having been served upon them. To that extent, therefore, these appellants may continue to prosecute this appeal through their attorney who still represents them. We were advised at oral argument that the board of trustees, as now constituted, has taken no official action either directing continuance of the appeal on its behalf or disavowing continuance.

Counsel for the individual board members, who are appellants herein, expressed concern about the absence of any limitation upon the interrogation of these board members as individuals with reference to matters that may have antedated their appointment to the board in January 1970. It was stated at oral argument that under no circumstances should they be questioned concerning matters anterior to their appointment to the board, or having no relevancy to their official conduct. It was stated by counsel for these individuals that they should not be harassed by questions tending to promote purely political ends. We need not decide this issue in a vacuum. If and when judicial intervention becomes necessary, the aggrieved parties may apply to the Chancery Division to fix appropriate limitations. We do not retain jurisdiction.

Affirmed.


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

text:
    WILLIAM W. MORRISON, PLAINTIFF-APPELLANT, v. THE TOWNSHIP COMMITTEE OF THE TOWNSHIP OF JACKSON, MICHAEL RYTELEWSKI, JAMES W. HYRES, JOSEPH F. SMITH, RALPH FINELLI, HERBERT DOLAN, DORIS BENNETT, IVAN MICKLE AND FRANK HOLMAN, DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued September 21, 1971
    Decided September 27, 1971.

      Before Judges Goldmann, Collester and Mintz.

      Mr. Donald G. Butch, argued the cause for appellant (Messrs. Sieving, Grasso, Gelzer & Kelaher, attorneys).

      Mr. Serman A. Adler argued the cause for respondents (Messrs. Lomell, Muccifori, Adler, Kearney & Ravascliiere, attorneys).
   The opinion of the court was delivered by

Goldmann, P. J. A. D.

Plaintiff appeals from a Law Division Judgment in defendant’s favor holding that the office of Tax Assessor of Jackson Township was abolished in accordance with the provisions of N. J. 8. A. 40:145-19 and that plaintiff therefore did not have the right to be restored to his former position of tax assessor.

Plaintiff was the successful candidate for an unexpired term of one year as township tax assessor, the term to begin July 1, 1964 and end June 30, 1965. He actually entered upon his office in November 1963 when he was appointed to fill the vacancy resulting from the resignation of the assessor then holding office. At the November 1964 general election plaintiff was again the successful candidate for the office, the term to begin July 1, 1965 and end June 30, 1969. It was stipulated that plaintiff received a tax assessor’s certificate from the Division of Taxation, Department of the Treasury, on October 4, 1967 under L. 1967, c. 44, § 1 et seq. (N: J. 8. A. 54:1-35.25 et seq.)

The ballot for the November 1969 general election carried as a referendum a proposed ordinance to abolish the position of tax assessor and to create in its place a three-man board of assessors. This was done pursuant to and in full conformity with the provisions of N. J. 8. A. 40:145-19. The ordinance was approved by a vote of 2925 to 1120. Thereafter, on June 30, 1970 the office of tax assessor was abolished and a three-man board of assessors appointed. Plaintiff was not one of the appointees. The board members will receive salaries totalling $7,000, as compared with the $9,800 received by plaintiff. It is indicated that members of the board will, if they have not already done so, apply for certification by the Division of Taxation.

On July 2, 1970 plaintiff obtained a temporary restraining order enjoining the defendant appointees from assuming their duties as members of the board of tax assessors. That order was dissolved on October 9, 1970, and defendants thereafter undertook the performance of their duties. The judgment here on appeal was entered December 3, 1970.

Plaintiff maintains that he acquired tenure as township tax assessor under N. J. 8. A. 54:1-35.31, and that tenure could not be defeated by the action taken under N. J. 8. A. 40:145-19 abolishing his office and creating the three-man board of assessors. N. J. S. A. 54:1-35.31 provides in pertinent part:

Notwithstanding the provisions of any other law to the contrary, every person
(1) who, upon reappointment or re-election subsequent to having received a tax assessor certificate and having served as tax assessor or performed the duties of assessor for not less than 4 consecutive years immediately prior to such reappointment or re-election, or
(2) who, on or before June 30, 1969, shall have received a tax assessor certificate while actually in office as assessor or performing the duties of an assessor, and who, on or before June 30, 1969, shall have served as assessor or performed the duties of assessor for not less than 4 consecutive years.
shall hold his position during good behavior and efficiency notwithstanding that such reappointment or re-election was for a fixed term of years, and he shall not be removed therefrom for political reasons but only for good cause shown and after a proper hearing before the director or his designee after due notice. •* * *

In support of his position, plaintiff points to the fact that he served as tax assessor for almost seven years, from November 1963 to October 9, 1970, when the temporary restraint was dissolved, and that he had received the required tax assessor’s certificate before June 30, 1969 while actually serving as township tax assessor, thereby satisfying the second quoted provision of N. J. 8. A. 54:1—35.31. He maintains that he could be removed from office “only for good cause shown and after a proper hearing.”

After the taking of testimony and the argument of counsel, the trial judge in an oral opinion held that the township and its electorate had acted in good faith and for good cause — namely, economy and efficiency •— and in accordance with the provisions of N. J. 8. A. 40:145-19. lie noted that while the Faulkner Act, Walsh Act and the Municipal Manager Act seemed to grant protection to tenured officers — see N. J. 8. A. 40:69A-207, 40:71-9 and 40:80-11, respectively — there was no similar provision in the laws relating to townships (Title 40, Subtitle 11; N. J. S. A. 40:142-1 et seq., particularly N. J. 8. A. 40:145-19). Noting that repeal by implication is not favored in the law, the trial judge held that N. J. S. A. 40:145-19 was not repealed by N. J. S. A. 54:1-35.31, upon which plaintiff relies.

N. J. 8. A. 54:1-35.31 has as its purpose the granting of’ tenure of office to a tax assessor who had received his tax assessor’s certificate before June 30, 1969 while in office, having served four years. However, N. J. 8. A. 40:145-19 is not concerned with tenure, but,with abolition of the office of tax assessor and the creation of a three-man board of assessors to appraise and value property in the township, if the voters at a general election show their preference for such a change by voting in favor of an ordinance so providing.

Plaintiff claims he is entitled to one of the positions on the new board. We find nothing in N. J. 8. A. 40:145-19, the law or logic that so requires.

There is no showing here of bad faith or political motivation. Cf. Ream v. Kuhlman, 112 N. J. Super. 175 (App. Div. 1970) and Docket A-824^70. Quite simply, the Jackson Township voters by an impressive margin expressed their desire to have tax assessments made by a three-man board, rather than by one man.

Affirmed.


author: Hartman, J. C. C.

text:
    HELANA INDIERO, PLAINTIFF, v. RALPH INDIERO, DEFENDANT.
    Superior Court of New Jersey Chancery Division
    Tried September 14, 1971
    Decided September 14, 1971.

      Messrs. Gass & Gass, attorneys for plaintiff (Ms. Rosemary Gass, appearing).

      Mr. Charles Eurebanas, attorney for defendant.
   Hartman, J. C. C.

(temporarily assigned). At .final hearing of contested causes of action for divorce grounded in causes based on fault under the Divorce Act before its recent amendment, both sides moved to amend their respective claims to assert a new cause of action, each seeking a divorce against the other, based on the new 18-month separation ground under the act as recently amended.

Under N. J. S. 2A :34-2, as amended, divorces may now be granted for the old causes of action as well as the newly added causes of action “heretofore or hereafter arising.” The amended act became effective September 13, 1971. There is no dispute in this case that the parties have not lived together since July 5, 1969.

This section of the statute should be construed as operating retroactively. In the present situation each party has a right to assert a claim for a cause of action which has arisen since the filing of the respective complaint and counterclaim, but which could not have been asserted until the effective date of the amended statute. I will grant plaintiff’s motion to amend her complaint by way of supplement to add the additional ground and to be heard on it. I will also grant defendant’s motion to amend his counterclaim in like fashion to set out an additional ground.


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

text:
    ANGELO R. MOLINO, TRADING AS HOLLYBUSH GARDENS APARTMENTS, PLAINTIFF, v. MAYOR AND COUNCIL OF THE BOROUGH OF GLASSBORO, A MUNICIPAL CORPORATION; PLANNING BOARD OF THE BOROUGH OF GLASSBORO; WESLEY MYERS AND ROBERT ADAMS, DEFENDANTS.
    Superior Court of New Jersey Law Division
    Decided July 27, 1971.

      Mr. John B. Bennie for the plaintiff.

      Mr. Martin A. Herman for defendant Planning Board of Borough of Glassboro (Messrs. Herman, Pearson é Duller, attorneys).

      Mr. Harris Y. Cotton for defendants Mayor and Council of Borough of Glassboro, Wesley Myers and Bobert Adams (Messrs. Falciani, Cotton, Chell & Stoinshi, attorneys).
   Schalick, A. J. S. C.

This is an action in lieu of prerogative writ brought by the plaintiff, Angelo B. Molino, a building contractor, against the Planning Board, the Borough Council, the Building Inspector, and the Zoning Officer of the Borough of Glassboro to invalidate an ordinance enacted on February 10, 1970, which amends the Borough Zoning Ordinance affecting apartment house construction. The plaintiff also seeks to compel the granting of site plan approval for plans to erect 172 garden apartment units which would constitute the second section of an existing, adjacent apartment complex known as Hollybush Gardens and to require the Borough officials to issue the necessary zoning and building permits for the project.

The plaintiff, during 1966, contemplated the building of an apartment project. In consultation with the government agency, a site was selected consisting of 17.5 acres on the west side of Delsea Drive in the borough. At the inception 324 garden apartment units were proposed, but meetings with the Planning Board narrowed the proposal to 252 units to meet local requirements.

In 1967, site plans for a 252 unit project were submitted to the Federal Housing Administration, but this agency would only finance at that time 80 units. A suggestion was made that if the accepted project proved successful, the remaining 172 units would then be considered. During the same year the Planning Board approved the 80 unit project as Hollybush Gardens, and zoning and building permits were issued.

In November 1969 section one was completed and occupied. Then the plaintiff secured approval from F. H. A. for section two, and in December 1969 site plan for section two was submitted to the Planning Board. On January 6, 1970, the Board returned the site plan to plaintiff’s attorney for modification. On January 20, 1970, revised plans were returned for study. On February 10, 1970, the Borough Council enacted an Ordinance to amend the Zoning Ordinance with these pertinent provisions:

1. In any given garden apartment complex, at least 70 per cent of all units could have no more than one bedroom. No more than 25 per cent may have two bedrooms, and no more than 5 per cent could have three bedrooms.
2. Minimum floor space requirements: 750 sq. feet -— one bedroom units, 900 sq. feet — two bedroom unit's, 1200 sq. feet — three bedroom units.
3. All electrical and utility wires must be beneath the surface of the ground.
4. Not more than 14 dwelling units could he erected on an acre.
5. Two off street parking spaces must be provided for each unit.
6. At least one automatic laundry washer and dryer must be provided for every eight bedrooms.
7. At least 8 sq. feet of swimming pool or tennis court space must he provided for every 100 sq. feet of living space.
8. Each apartment unit must have a central air-conditioning unit.
9. Each building must have a master T.V. antenna.
10. There must be at least two doorways to each apartment unit. There must be a separate stairway leading from each doorway in second story apartments.
11. Each apartment must have an automatic garbage disposal unit.

In addition to the foregoing, the ordinance also contained provisions which increased the minimum yard and frontage requirements, required certain kinds of landscaping, increased the fireproofing requirements, and required a planting screen as a buffer.

Two weeks after the Borough Council enacted the ordinance, the Planning Board rejected the site plan because of non-compliance with the new ordinance.

The plaintiff contends that in reliance upon the representation made to him by the officials that he had site plan approval to complete the development, and as a result he had the right to proceed despite the zoning change. He alleges that the 1967 application to the Planning Board resulted in full approval of the construction of the 172 units and thereby he was protected from further changes by this ordinance.

Another point of attack by the plaintiff was the allegation that the Planning Board did not act upon the site plan within 45 days after it was submitted, and the failure to act operated as an approval under N. J. 8. A. 40 ¡55-1.18.

The plaintiff also alleges that the statutory requirements for the adoption of the ordinance were not complied with as provided in N. J. 8. A. 40:49-2 et seq., and such amendment is void.

One of the substantial points made by the plaintiff was that the ordinance is illegal and unconstitutional because its requirements were an unreasonable and arbitrary exercise of municipal power in that it was violative of sound zoning in the Borough of Glassboro.

If the plaintiff was granted approval for the entire project and in reliance on that approval he expended substantial sums to make improvements, the court must evaluate his position. The burden of proving the approval rests with the plaintiff. The court can only conclude that there was no approval of the 172 apartment units for no formal action was ever taken, and only the approval was given for section one. Considerable testimony was offered which never gained any strength to show full project approval but only embraced conversations with officials as to future intentions. The Planning Board and the Board deny that any such approval was given, or that the approval for section one was conditioned for further approval. It was admitted by all parties that there was no formal municipal action, and no testimony was offered which would cause the court to conclude that any such approval was supplied .by the action of the parties. The plaintiff also fails to show that any substantial sums of money were expended for improvements which would sustain his contentions.

A review of our decisions indicates that the action upon which the developer is entitled to rely must be an official action or something that appears to be such bjr a municipal body or municipal officer which that body or officer had the legal right to undertake, and not merely informal communications. Tremarco Corp. v. Garzio, 32 N. J. 448 (1960); Gruber v. Mayor and Tp. Committee of Raritan Twp., 39 N. J. 1 (1962). The court has already resolved this question.

Moreover, the plaintiff testified that the construction of section two would be in excess of two and one-quarter million dollars, whereas the highest figure quoted, and that by the plaintiff himself, was an expenditure of $51,000.00 in reliance on the approval for additional improvements. Other testimony lessened this amount. Two per cent cannot be considered a substantial amount in relation to the project cost, particularly when the plaintiff did not begin actual construction. See Anderson, American Law of Zoning, Vol. 3, Sec. 6.83.

We then come to the question of the effect of the Planning Board’s conduct from December 1969 until the adoption of the ordinance. The evidence fails to support the plaintiff’s allegation that he secured approval by the Board by their failure to act as set forth in the statute. There was no final submission of plans which required such action, and when the Board could have acted, the zoning change prevented such approval.

The ordinance met all statutory requirements in its adoption. The plaintiff’s proofs did not show a failure oí the Borough to comply with the statutory provisions. The substantial compliance is supported by the official records of the Planning Board and the Borough Council. A complete review is necessary to make such a determination and a fragmented effort to show minor lapses in procedure, gathered from different oral versions of the happenings, merit no concern by the court.

The zoning ordinance as amended presents serious questions as to its validity. The purpose of zoning is well known. The actions taken under the guise of zoning continue to cause grave concern. It cannot be used as a means to solve all collateral municipal problems. There is a presumption of validity if it meets the statutory and constitutional requirements.

The defendants during the trial admitted on several occasions that this ordinance was designed to keep children out of Glassboro, because more children require more schools and as a result higher taxes. If the issue is 'narrowed to the resolution of the legality of such action by a governing body, the'immediate reaction is not favorable.- The provisions of the ordinance must be analyzed.

No less than- 70 per cent of all apartments shall be one bedroom units. We know this denies occupancy by families with children. And no more than 5 per cent shall be three bedroom units. This is a minimal provision. No more than 20 per cent may have two bedrooms, which by design limits the family size.

Complete fireproofing, underground electric and telephone facilities, the need for which may be arguable, parking requirements for two automobiles for each dwelling unit, more than one exit for each dwelling unit, an enclosed play space of 60 feet by 100 feet per building, so many square feet of swimming pools or tennis courts for every 100 square feet of living space or recreational facilities of equal value, and similar unusual requirements, cannot be provided so as to meet the needs of the middle income family, apart from the consideration of low income families.

The court had the advantage of testimony by citizens and officials, studies by experts, municipal projections, and the analysis of the Borough needs for housing. The court finds there would be no market for such high rental apartments under this ordinance in the Borough, while the immediate need is for a blend of living units for middle income and low income families. A part of the town is occupied by a State College and there is also a need for student housing and for their families, and the families of those employed at this educational institution.

The court notes that the professional consultant to the Planning Board had not recommended either the apartment ratios or the mandatory recreational facilities.

In the name of control of density of population and the general welfare of the community, the defendants maintain that they are exercising the right to upgrade the apartment ordinance. They are urging judicial sanction be given to their efforts to avoid an increase of tax burdens.

The court finds from the testimony that section one, now constructed and occupied, has 18 one bedrooms, 50 two bedrooms, and 12 three bedrooms. The defendants offered testimony that this unit has 51 school children, 44 in elementary schools and 7 in high school, and that the resulting educational cost is $36,031.40, apart from other municipal services. The tax revenue for 1971 received from this complex was $23,859.00. The officials admit a need for low income housing and have hopeful plans to meet the demand. The need has not been met.

This is not a case where a decision has been made that there is no need for additional apartments or that the subject area is not adaptable to apartments. The plaintiff’s application for section two included the same type of apartments as in section one, which would have been permitted under the ordinance until amended. If section two were built it would be adjacent to the present complex in section one. There can be no objectionable features as to the location of the section two development.

Glassboro needs housing for its own citizens. The governing body has by its legislative action approved apartments and at the named locations. It is not disputed that the conditions and circumstances prevailing require municipal efforts to accommodate by the added construction of dwelling units.

The added question is the right of Glassboro, by zoning regulations, to restrict its population to adults and the exclusion of children.

The effort to establish a well balanced community does not contemplate the limitation of the number in a family by regulating the type of housing. The attempt to equate the cost of education to the number of children allowed in a project or a community has no relation to zoning. The governmental cost must be an official concern but not to an extent that it determines who shall live in the municipality. With all our advances in expertise, it is doubtful if the cost for educating children can ever be a profitable undertaking.

There is a right to be free from discrimination based on economic status. There is also a right to live as a family, and not be subject to a limitation on the number of members of that family in order to reside any place. Such legal barriers would offend the equal protection mandates of the Constitution.

Our courts have upheld the regulation of apartments, the land areas for dwelling units, the limitation of congestion, the requirements for living and recreation space, the exclusion of residential uses consistent with the needs of the region as well as the limitation of the type of permissible uses within the municipality. There must be a case by case analysis, with concern for a legal use of the land and the health, safety and welfare of the pepole.

Exclusionary zoning may lead to illegal and unwanted conditions, which are violative of individual rights. ISTo municipality can isolate itself from the difficulties which are prevalent in all segments of society. When the general public interest is paramount to the limited interest of the municipality then the municipality cannot create road blocks. Zoning is not a boundless license to structure a municipality.

This amendment to the ordinance can find no legal support when its provisions are analyzed in relation to the Borough of Glassboro. This determination can only be made when the trial record is adequate to fully reveal the needs of this community. Counsel for the parties made this possible. Justice Hall, in supporting a use variance in DeSimone v. Greater Englewood Housing Corp., 56 N. J. 428 (1970), held “as a matter of law in the light of public policy and the law of the land” that housing needs must be met by official action. The same reasoning applies to the instant case when the governing body legislates to defy the public need for housing.

Apartments under the amended ordinance cannot be constructed by the plaintiff in Glassboro because it is not economically feasible. This is a community where Mr. Average Man lives with his family. He cannot pay high rentals, which the proofs conclusively show would be necessary. He buys in the business district. He is employed in industry, or other places of employment. He should not be barred from living there.

The amendment to the ordinance is null and void.

Judgment will be entered in accordance with the conclusions.


author: Lane, J. A. D.

text:
    IN THE MATTER OF DISCIPLINARY PROCEEDINGS AGAINST S. EDWARD HAUSNER, t/a SKYLINE LOUNGE, 789 DOWD AVENUE, ELIZABETH, NEW JERSEY HOLDER OF PLENARY RETAIL CONSUMPTION LICENSE C-111 (FOR 1969-70 LICENSE PERIOD AS EXTENDED FOR 1970-71 LICENSE PERIOD) ISSUED BY THE CITY COUNCIL OF THE CITY OF ELIZABETH.
    Superior Court of New Jersey Appellate Division
    Submitted September 22, 1971
    Decided September 27, 1971.

      Before Judges Kilkenny, Labrecque and Lane.

      Mr. Theodore Cohen, attorney for appellant S. Edward Hausner (Mr. Anthony X. Arturi, on the brief).

      Mr. Ceorge F. Eugler, Jr., Attorney General, attorney for respondent Division of Alcoholic Beverage Control (Mr. Stephen Shillman, Assistant Attorney General, of counsel; Mr. Bertram P. Goltz, Jr., Deputy Attorney General, on the brief).
   The opinion of the court was delivered by

Lane, J. A. D.

Licensee appeals from a 50-day suspension of its license based upon possession of contraceptives and obscene literature on its premises.

The licensee was charged:

1. On August 27, 1969, you allowed, permitted and suffered in and upon your licensed premises and had in your possession obscene, indecent, filthy, lewd, lascivious and disgusting printings, writings and pictures; in violation of Rule 17 of State Regulation No. 20.
2. On August 27, 1969, you possessed prophylactics against venereal disease and contraceptives and contraceptive devices, in and upon your licensed premises; .in violation of Rule 9 of State Regulation No. 20.

Rule 17 of State Regulation 20 provides:

No licensee shall allow, permit or suffer in or upon the licensed premises or have in his possession or distribute' or cause to be distributed any obscene, indecent, filthy, lewd, lascivious or disgusting recording, printing, writing, picture or other matter.

Rule 9 of State • Regulation 20 . provides:

No licensee, except bona fide pharmacies to the extent that they may be duly authorized by law, shall sell, distribute or possess, or allow, permit or suffer the sale or distribution, or the possession for the purpose of sales or distribution of any prophylactic against venereal disease or any contraceptive or contraceptive device, either chemical or mechanical, or possess, allow, permit or suffer any mechanical device for such sale or distribution, in or upon the licensed premises or any other premises used in connection therewith.

.On August 27, 1969, shortly after 3 p.m., an agent of ABC with three law enforcement officers entered the licensed premises on a specific assignment to investigate an allegation that there was stolen liquor on the premises. No stolen liquor was found. At the conclusion of the search for the stolen liquor, the agent inspected a small office area. In a filing cabinet he found three books entitled Photographic Manual of Sexual Intercourse, Oral Love and Variations in Love Making. Prom a safe he seized, a partially used tube of Ortho vaginal jelly, an Ortho diaphragm and three male contraceptives. In a center drawer of the desk he found and seized three catalogs: a 48-page color catalog entitled “Adult Catalog”; a 4-page color catalog bearing the legend “Save 25%”, and a 24-page color catalog entitled “Breathtaking Pull Color Adult Catalog.” Licensee admitted that all of the items seized were his except the diaphragm and jelly which he asserted were his wife’s.

The Director concluded that the three books did not come within the proscription of Pule 17 of State Regulation 20 and found the licensee not guilty as to those items. As to the catalogs he found that they were pornographic, “portraying nude persons in sexually suggestive poses and positions of a smutty nature, geared to appeal to the passions of the viewer, and they therefore are obscene, indecent, filthy, lewd, lascivious and disgusting printings, writings and pictures within the meaning of of Rule 17 of State Regulation No. 20.” He did not consider it a defense that the materials were merely retained after being received in the mail without solicitation. He ruled that the Division did not have to prove that a licensee possessed such materials with intention to display them to customers. The Director found that the evidence charging the licensee with possession of prophylactics and a contraceptive device was uncontradicted.

The licensee argues that in view of present-day mores the items found to be obscene are not in fact obscene. We have examined the original exhibits and in our opinion the Director’s finding that the items were obscene is amply supported. It must be remembered that the standards to be applied are more narrow than the definition of “obscenity” under the First Amendment. Cf. In re Club “D” Lane, Inc., 112 N. J. Super. 577, 580 (App. Div. 1971); Jeanne’s Enterprises, Inc. v. State Dept. of Law, etc., 93 N. J. Super. 230, 232 (App. Div.), aff’d o. b. 48 N. J. 359 (1966).

The licensee challenges the validity of Rules 9 and 17 insofar as they are absolute prohibitions, arguing that they are therefore unreasonable. Rule 9 prohibits contraceptives and contraceptive devices regardless of the purpose for which they are held or the intent of their use. The purpose of the rule is obvious. The Director has promulgated it to avoid all possible connection of these items with the sale of alcoholic beverages. It cannot be said that an absolute prohibition is not a reasonable means of accomplishing this purpose to fit the public need. Cf. Mazza v. Cavicchia, 15 N. J. 498, 505 (1954). Compare One Eleven Wines & Liquors, Inc. v. Div. Alcoholic Bev. Cont., 50 N. J. 329 (1967), dealing with civil rights of patrons.

The result in analyzing Rule 17 is essentially the same. The Director has promulgated a rule absolutely prohibiting the possession of obscene literature by a licensee. This is for the purpose of having no connection of such material with the sale of alcoholic beverages. Licensee argues that the prohibition should only be applied when this connection is established. However, an absolute prohibition is reasonably useful for this purpose and can be upheld.

Licensee is essentially arguing that Rules 9 and 17 as interpreted and enforced may harm an innocent licensee. Regardless of the validity of this assertion, the Director may nevertheless so enforce these rules for they are a reasonable means by which a legitimate policy of the Division can be enforced. Cf. Murphy’s Tavern, Inc. v. Davis, 70 N. J. Super. 87 (App. Div. 1961); McFadden’s Lounge v. Div. of Alcoholic Bev. Control, 33 N. J. Super. 61 (App. Div. 1954).

Licensee has not sustained his very heavy burden of proving that the rules as they have been promulgated or as they have been enforced are unreasonable. Since the rules are reasonable, the finding of licensee’s violations was proper. The finding of a violation of the rules by the licensee was proper even though there was no indication of an intent at wrongdoing on the part of the licensee. As long as a violation of a valid rule is shown, a finding of guilt of, and the imposition of a suspension on, a licensee is proper regardless of his intent or motives. Grant Lunch Corp. v. Driscoll, 129 N. J. L. 408, 410-411 (Sup. Ct.), aff’d 130 N. J. L. 554 (E. & A. 1943), cert. den. 320 U. S. 801, 64 S. Ct. 431, 88 L. Ed. 484 (1944).

The conclusions and order of the Director, Division of Alcoholic Beverage Control, are affirmed and the stay of the imposition of the penalty granted by us on motion is vacated. The matter is remanded to the Division of Alcoholic Beverage Control for the implementation of the suspension.


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    GEORGIANA RYAN, INDIVIDUALLY, AND AS ADMINISTRATRIX AD PROSEQUENDUM OF THE ESTATE OF RAYMOND M. RYAN, DECEASED, AND CORDELIA RYAN, AN INFANT BY HER GUARDIAN AD LITEM, GEORGIANA RYAN, PLAINTIFFS-RESPONDENTS AND CROSS-APPELLANTS, v. THE PORT OF NEW YORK AUTHORITY, A BODY POLITIC AND CORPORATE, DEFENDANT-APPELLANT AND CROSS-RESPONDENT, AND PATRICK M. J. MALONEY AND BONITAS YOUTH SERVICE, INC., A NEW JERSEY CORPORATION, DEFENDANTS.
    Superior Court of New Jersey Appellate Division
    Argued September 14, 1971
    Decided September 22, 1971.

      Before Judges Kilkenny, Labeecque and Lane.

      Mr. Francis A. Mulhern argued the cause for defendant The Port of New York Authority (Mr. Sidney Goldstein of the New York Bar, of counsel; Mr. George Milanos, on the brief).

      Mr. Robert O. Gar of alo argued the cause for plaintiffs (Messrs. Ryan, Foster & Gar of alo, attorneys; Mr. Gar of alo, of counsel; Mr. Richard H. Foster, on the brief).
   The opinion of the court was delivered by

Lane, J. A. D.

Plaintiff Cordelia Ryan, an infant, recovered a judgment against defendants for her personal injuries in the amount of $13,800. Plaintiff Georgiana Ryan recovered a judgment for medical expenses of Cordelia Ryan and for loss of services against defendants in the amount of $3,100. She further recovered a judgment as administratrix of her husband’s estate in the amount of $150,000.

The complaint was based upon an automobile accident that occurred January 27, 1967 at approximately 1.20 p.m. between an automobile being operated by Cordelia Ryan in a westerly direction on the upper level of the George Washington Bridge and a Eord Econoline van motor vehicle owned by defendant Bonitas Youth Service, Inc. and being operated by its agent, defendant Maloney, in an easterly direction. As a result of the accident Raymond M. Ryan, Cordelia’s father and a passenger in the automobile, sustained injuries that resulted in his death. Cordelia Ryan sustained serious personal injuries. Plaintiffs contended that the Port Authority was negligent “in permitting vehicles of the type operated by defendant Maloney on the upper level of the George Washington Bridge at the time of the accident due to.weather conditions involving rain, wet and slippery road surfaces and extremely high, stormy winds.”

Defendant Port of New York Authority appeals alleging that the trial court erred (a) in denying its motion for a judgment of dismissal at the close of plaintiffs’ case in that plaintiffs failed to prove that the Port Authority was negligent in allowing co-defendant Maloney’s vehicle to traverse the George Washington Bridge; (b) in denying the Port Authority’s motion for judgment of dismissal in that plaintiffs failed to prove that the Port Authority had notice of hazardous wind conditions before the accident, and (c) in admitting into evidence testimony that the bridge was closed to van vehicles 50 minutes after the accident as well as two other dates after the accident. Plaintiffs cross-appeal, alleging that it was error to remove from the case the issue of negligence of the Port Authority based upon the failure to post warning signs.

I

A

The Port Authority recognizes that it was under an obligation to exercise reasonable care in its operation of the George Washington Bridge. Cf. Monaco v. Comfort Bus Line, Inc., 134 N. J. L. 553 (E. & A. 1946); McCabe v. N. J. Turnpike Auth., 35 N. J. 26 (1961). It argues:

* * * the basic issue presented in this case is whether or not there was proof of any standard of reasonable care to which the Port Authority failed to conform. Stated differently the issue is whether or not the Port Authority knew or should have known that the entry of Maloney’s vehicle on the Bridge at the time created an unreasonable risk of harm to other users of the Bridge.

To establish a standard of reasonable care, plaintiffs introduced into evidence a memorandum dated February 1, 1966 from Captain Robert Friend, in charge of the George Washington Bridge for the Port Authority, which set forth a guide for determining when the bridge should be closed to certain vehicles such as the Ford Econoline van. The memorandum stated in part:

This memo will serve as a guide for determining when certain type vehicles should be barred from using the George Washington Bridge.
1. When wind velocity exceeds 30 miles per hour.
2. When such winds blow in a north and south direction with respect to the main span.

It was conceded that the memorandum was used at least as a guide by the Port Authority. There was evidence that it was considered as a rigid standard by at least one Port Authority tour commander. The memorandum tended to show “that the defendant had knowledge of a kind of protection suitable under certain circumstances.” Smith v. Boston & M. R. R., 87 N. H. 246, 177 A. 729, 739 (Sup. Ct. 1935). It constituted an admission that the Port Authority “perceived the risk and deemed the precaution appropriate and feasible.” 2 Harper and James, The Law of Torts (1956), § 17.3 at 977, 981. See also, 2 Wigmore on Evidence (3d ed. 1940), § 282 at 131, 132; Id., § 461 at 488, 501.

It is quite obvious that if the jury found that the Port Authority departed from its own guide and that such departure was a proximate cause of the accident, its verdict finding that the Port Authority failed to exercise reasonable care in the operation of the George Washington Bridge was supported.

The question, therefore, is whether plaintiffs established that the wind velocity and direction before the happening of the accident was such that the Port Authority under the February 1, 1966 memorandum as interpreted by it should have as a reasonable precaution closed the bridge to the Ford Econoline van.

Defendant argues that there was no evidence that it deviated from the standard of care to a sufficient degree to show a breach of its duty. This question depended in part on the interpretation of the memorandum. Plaintiff introduced evidence to show that the memorandum, even if only a guideline, was used at certain times when the use of the bridge was banned to certain vehicles.

Even assuming that the memorandum was not to be applied with flexibility, there was evidence from which the jury could have found that defendant should have closed the bridge to certain vehicles, including the Eoonoline van, on the day of the accident. The evidence was that the winds were from a northeasterly direction and were gusting over 30 miles per hour. The jury could have determined that the memorandum indicated that whenever the winds were blowing to this extent and to some degree from the north or the south, the vehicles should be banned.

Furthermore, if the jury found that the standard was flexible, there was sufficient evidence to indicate that a flexible standard of care was breached. This was indicated in part by the fact that on other occasions under similar weather conditions, the bridge was closed to these vehicles.

Plaintiffs adduced sufficient evidence from which the jury could have found that the Port Authority failed to exercise reasonable care in failing to ban the Ford Econoline van from the use of the bridge.

B

Although the Port Authority admits that it “had foreseen that a possibility that a van-type vehicle traversing the Bridge might become unstable because of high winds,” it contends that the evidence did not show that it had any notice on the date of the accident of winds “of a force which would have necessitated a ban of van-type vehicles.” Plaintiffs introduced evidence through a meteorologist from which the jury could have found that the winds were such in the morning of the day of the accident as to create a hazardous condition under the terms of the February 1, 1966 memorandum as interpreted by the Port Authority. The meteorologist testified that on the morning of January 37 there were east to northeast winds of 15 to 30 miles per hour, gusting as high as 35 to 35 miles per hour.

The trial court was required to deny the motion for judgment of dismissal if the evidence, together with all the legitimate inferences therefrom, could sustain a verdict for the plaintiffs. R. 4:37-2(b); Dolson v. Anastasia, 55 N. J. 2, 5 (1969). It could not weigh the evidence or make any specific findings of fact but had to accept all evidence produced by plaintiffs as true. Bell v. Eastern Beef Co., 42 N. J. 126, 129 (1964); Hindle v. Morrison Steel Co., 92 N. J. Super. 75, 81 (App. Div. 1966). The motion for a judgment of dismissal was properly denied.

II

The trial court admitted into evidence an answer to an interrogatory by the Port Authority setting forth the dates when the upper level of the bridge was closed to vehicles such as the Eord Eeonoline van during 1966 and 1967. The answer to the interrogatory was:

During 1966 no closings to certain types of vehicles due to wind conditions. During 1967, there were bans to certain types of vehicles, utility trailers, house trailers, bus-type station wagons, foreign and domestic, any empty trailer meriting special attention of the Sergeant or Tour Commander. Ban occurred on January 27, 1967, at 2:10 p.m. Winds were from twenty-five miles per hour to thirty miles per hour. Ban occurred on April 28, 1967, 9:30 A.M., winds in excess of thirty miles per hour. Ban occurred on May 24, 1967, 1:40 P.M., winds in excess of thirty miles per hour.

The Port Authority contends that the admission of this answer to the interrogatory into evidence was prejudicial error. Its argument is based upon Rule 51 of the Rules of Evidence which states:

When after the occurrence of an event remedial or precautionary measures are taken, which, if taken previously would have tended to make the event less likely to occur, evidence of such subsequent measures is not admissible to prove negligence or culpable conduct in connection with the event.

The clear language of the rule indicates that while the evidence is inadmissible as an admission of negligence, it may be introduced for other purposes. Cf. Hansson v. Catalytic Construction Co., 43 N. J. Super. 23, 27 (App. Div. 1956).

Plaintiffs through their meteorologist had established the wind conditions at the time of each of the three closings of the bridge. The answer to the interrogatory was admitted by the Trial court to show the interpretation of the February 1, 1966 memorandum by the employees of the Port Authority and to show how the standards set forth in that memorandum were applied. The evidence was clearly relevant to show when defendant Port Authority perceived there was a hazardous condition which would require it in the exercise of reasonable care to take the precaution of closing the bridge.

The most strenuous argument of the Port Authority is directed to the evidence concerning closing of the bridge 50 minutes after the accident. It contends in its brief that this closing was “a normal reaction on the part of those in charge of the Bridge” taken as a result of the accident. That contention is completely unsupported in the evidence. The Port Authority called no witnesses and offered no testimony whatsoever to show that the closing 50 minutes after the accident was anything other than a closing taken under the February 1, 1966 memorandum of Captain Friend.

Under the circumstances that existed at the trial, the admission of the answer to the interrogatory was proper.

We note that the trial court was careful in its charge to the jury to instruct them correctly as to the use of the evidence of the closings of the bridge. The jury was instructed:

You will also recall testimony by way of depositions of the various officers as to the nature and effect of the memorandum. I also want to caution you and I have admitted into evidence the opinions of Mr. Gos-set and the Answers to Interrogatories by the Port of New York Authority and other evidence concerning the ban imposed at 2:10 p.M. on January 27, 1967, and the two subsequent dates only for the purpose of assisting you if this evidence does, in determining the nature and meaning of the ban if proven to your satisfaction resulting from the memorandum of Captain Friend and all the other circumstances.
This evidence may not be taken by you as remedial or precautionary measures, which, if taken previously, would have tended to make the accident less likely to occur. That is to say, it would be an improper inference for you to conclude that because the ban was imposed at 2:10 after the accident occurred when the winds were from 25 to 30 miles per hour if you so find and as contended by the Port, that, therefore, the Port was negligent in not imposing the ban before the accident.

We need not consider plaintiffs’ cross-appeal.

The judgments in favor of plaintiffs are affirmed.


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    E. & E. NEWMAN, INC., PLAINTIFF-RESPONDENT, v. JAMES L. HALLOCK, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued September 14, 1971
    Decided September 27, 1971.

      Before Judges Kilkenny, Labrecque and Lane.

      Mr. Robert D. Campbell argued the cause for appellant (Mr. Timothy K. Madden, Director Hudson County Legal Services, attorney; Messrs. William Goldberg and Jonathan Spade, on the brief).

      Mr. Nathan Blumberg argued the cause for respondent.
   Per Curiam.

Plaintiff landlord sued defendant tenant in the County district court for possession of a four-room apartment on the fifth floor of a ten-family apartment building at 1312 Washington Street, in Hoboken. Suit was based upon the nonpayment of $200 in rent allegedly due on May 1, 1970. There was a judgment for possession entered on May 12, 1970 and defendant appeals therefrom.

Defendant had rented this apartment on November 22, 1969 at a monthly rental of $70. Erom the time he moved in defendant had observed that there was a problem with the water pressure. He testified:

There was no running water for most of the time. * * * [V]ery often I couldn’t draw any water for a bath. Very often I would wake up in the morning and there was no water in the toilet from flushing from the previous night.

Defendant complained to Mr. Newman, a principal of plaintiff, but he testified that he received no remedial action.

On February 23, 1970 defendant registered a complaint with the board of health or plumbing inspector. An inspector came to the premises on a number of subsequent occasions. Whether the repairs were made was disputed.

Defendant and Lis roommate, Ronald Hine, work for a voluntary organization called “Self-Help,” whose purpose is to aid people with tenancy and welfare problems. On February 24, 1970 they organized and participated in a tenants’ meeting in plaintiff’s building. Since the great majority of the families residing in these premises are Spanish-speaking, they made up notices of the meeting in Spanish. The meeting was held in their apartment. They testified that 15 adult persons attended, but Newman stated there were 30.' Perhaps the difference is due to the presence of children of some of the tenants. The following day Newman came to their apartment and advised them that there would be no more meetings in their apartment; that it was against fire regulations.

The court found that proper notice had been served upon defendant on April 1, 1970 which increased his rent from $70 to $200 monthly. The landlord’s alleged reason for the increase was “rising expenses, taxes, insurance, water, fuel and maintenance costs.” Of the other nine tenants in this building only one other tenant received a rental increase notice, and that was from $80 to $100 monthly.

A “final” notice of the existence of a nuisance was received by Mr. Newman from the Department of Health. The notice was dated April 16, 1970, a date subsequent to the rental increase notice.

Defendant has tendered $70 as rent for each month subsequent to April 1970, which tender has been refused by plaintiff. When the increased rental of $200 was not paid on May 1, 1970 dispossess proceedings were immediately instituted by plaintiff landlord and judgment for possession was granted on May 12, 1970, as first noted above.

N. J. S. A. 2A:18-59 provides:

Proceedings had by virtue of this article shall not be appealable except on the ground of lack of jurisdiction. * * *

Recent cases indicate that the issue in this case should be treated as jurisdictional. See e. g., Vineland Shop ping Center, Inc. v. DeMarco, 35 N. J. 459 (1961). Since the landlord-tenant court is a statutory creation, all the statutory prerequisites must be met in order for the County district court to gain jurisdiction. In the instant case one of these prerequisites is the “default” in the payment of rent. If defendant’s contention is correct, the landlord would not have lawfully raised the rent and therefore there would have been no “default.” The County district court would thus have had no jurisdiction. See also Marini v. Ireland, 56 N. J. 130 (1970).

These same cases also indicate that a tenant may set forth an equitable defense to defeat an action. Such a defense may be reviewed by the appellate courts. Marini v. Ireland, supra, 56 N. J. at 140, expressly overruling Peters v. Kelly, 98 N. J. Super. 441 (App. Div. 1968).

The question is. whether “retaliation” is such a defense. N. J. S. A. 2A:42-10.10 et seq. (effective Sept. 30, 1970) expressly makes it unlawful for a landlord to serve a notice to quit upon a tenant in reprisal for the latter’s participation in a tenants’ organization. It also makes unlawful such service because of a tenant’s failure to abide by an alteration in the terms of the tenancy initiated as such a reprisal. Any such service or alteration following a tenant’s participation raises a rebuttable presumption of reprisal. This may be raised as a defense in an action for possession. Clearly, had the statute been in force it would have been applicable if the factual circumstances were as defendant contends. However, the statute became effective six months after this incident. Engler v. Capital Management Corp., 112 N. J. Super. 445 (Ch. Div. 1970).

The above statute was taken from and replaced N. J. S. A. 2A:170-92.1 which made it a disorderly person offense for a landlord to engage in those actions now proscribed by the new statute. The statute did not, however, specifically by its terms prohibit the removal of tenants on the ground of reprisal.

In Alexander Hamilton S. & L. Ass’n v. Whaley, 107 N. J. Super. 89 (Cty. D. Ct. 1969), the court apparently found such proscription inherent in the statute and denied the landlord the eviction since it was convinced that it was merely a reprisal.

Such an intent was also found in Engler v. Capital Management Corp., supra. There the court reasoned that to countenance such retaliation would he to violate the 14th Amendment in that the tenant’s right to freedom of speech and assembly would be unduly impaired. Edwards v. Habib, 130 U. S. App. D. C. 126, 397 F. 2d 687 (D. C. Cir. 1968), cert. den. 393 U. S. 1016, 89 S Ct. 618, 21 L. Ed. 2d 560 (1969); Hosey v. Club Van Cortlandt, 299 F. Supp. 501 (S. D. N. Y. 1969). See McQueen v. Druker, 438 F. 2d 781 (1 Cir. 1971). Thus, a landlord should not be permitted to evict a tenant, or to raise his rent, as a reprisal for the tenant’s exercise of a constitutionally protected right.

In the instant case it is difficult to discern the basis for the county district court’s judgment. It is unclear whether the judge actually felt there was no reprisal or held that ihe issue was merely not cognizable. It expressly found the Peters case, supra, controlling. But Marini v. Ireland, supra, decided on May 18, 1970, expressly overruled Peters. The rash increase in the rent, when viewed in relation to the lack of increases among other tenants, is a strong indication of the involvement of a factor other than "rising expenses, taxes, insurance, water, fuel and maintenance costs.”

The judgment of possession is reversed and the case remanded for a determination by the county district court as to whether a reprisal occurred and for appropriate disposition based upon such determination. We do not retain jurisdiction.


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    PHYLLIS DiSANTO, ET ALS., PLAINTIFFS-APPELLANTS, v. MILDRED M. A. ADASE, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued September 21, 1971
    Decided September 27, 1971.

      Before Judges Goldmans, Collester and Miktz.

      Mr. Sam J. Abraham argued the cause for appellants (Messrs. Magner, Abraham, Orlando & Kahn, attorneys).

      Mr. Joseph J. Triarsi argued the cause for respondent {Messrs. Pisano & Triarsi, attorneys).
   Per Curiam.

The single issue projected by plaintiffs’ appeal is whether a subsequent remarriage of a divorced couple reinstates their pre-existing tenancy by the entirety. The Chancery Division judge held that it did. We reverse.

Defendant was the wife of Paul A. Adase, who died September 20, 1969. They had purchased the premises here in question on January 16, 1948, title being taken in their names as tenants by the entirety. A judgment of divorce dissolving the marriage was entered March 18, 1951. Fifteen years later, on January 23, 1966, decedent and defendant remarried.

Decedent left a will under which he devised and bequeathed one-third of his estate to plaintiff Phyllis DiSanto (a daughter by a previous marriage, we are told) and two-thirds to defendant. In view of defendant’s claim that she was entitled to all of the property, Phyllis and her husband brought a partition proceeding in which they also sought an accounting for all rents, issues and profits since decedent’s death. Defendant answered, alleging that her remarriage to Paul A. Adase revived the tenancy by the entirety and seeking dismissal of the complaint. Plaintiffs then moved for judgment on the pleadings. Following a hearing the trial judge entered judgment in favor of defendant and dismissing the complaint.

An absolute divorce terminates the marital relationship and converts an estate by the entirety into a tenancy in common. Mueller v. Mueller, 95 N. J. Super. 244, 248 (App. Div. 1967); Eberle v. Somonek, 24 N. J. Super. 366, 374 (Ch. Div. 1953); Gery v. Gery, 113 N. J. Eq. 59, 65 (E. & A. 1933). In Buttlar v. Buttlar, 67 N. J. Eq. 136, 138 (Ch. 1904), aff’d ibid. 729 (E. & A. 1904), the court noted that the effect of a divorce was to “destroy” an estate by the entirety.

An estate by the entirety can continue only if there is an unbroken relationship of husband and wife. “Just as the origination of this estate must emanate from a transfer to husband and wife, so its continuance rests upon the unbroken existence of that relationship.” Danes v. Smith, 30 N. J. Super. 292, 304-305 (App. Div. 1954). The 1951 divorce broke the continuity of defendant’s marriage and with it put an end to the tenancy by the entirety. At the moment the divorce decree was entered, defendant and Paul A. Adase become tenants in common. It is elementary that a tenancy in common is subject to partition. Gery v. Gery and Eberle v. Somonek, above.

There was nothing before the trial judge, either by way of pleading, affidavit or factual representation at argument, to support his determination. Judgment should have been entered declaring that Phyllis DiSanto took a one-sixth interest in the premises under the will (one-third of decedent’s one-half), and defendant five-sixths, and that plaintiffs are entitled to partition and an accounting.

Reversed and remanded for entry of an accordant judgment.


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    TOWNSHIP OF CHESTER, PLAINTIFF-RESPONDENT, v. MARIO PANICUCCI, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued September 22, 1971
    Decided September 29, 1971.

      Before Judges Kilkenny, Labbecque and Lane.

      Mr. William E. Ozzard argued the cause for appellant (Messrs. Ozzard, Rizzolo, Klein, Mauro & Savo, attorneys; Mr. Ozzard, on the brief).

      Mr. Lawrence P. Cohen argued the cause for respondent (Messrs. Fullerton, Kenihan & Porfido, attorneys; Mr. James M. Kenihan and Mr. Cohen, on the brief).
   The opinion of the court was delivered by

Lane, J. A. D.

The appeal in this matter is from “the final order of the Morris County Court entered in the subject action on August 25, 1970, wherein the Court denied the application of the defendant-appellant seeking an order determining the provisions of Section 46 of the Chester Township Vice and Immorality Ordinance to be invalid as being preempted by state statutes and unconstitutional.” The appendix does not contain a copy of the order of August 25, 1970. R. 2:6-1 (a) (3) requires that the appendix contain “the judgment, order or determination appealed from or sought to be reviewed or enforced.” This rule should be scrupulously adhered to.

Defendant was served with a summons returnable before the Municipal Court of the Township of Chester alleging a violation of section 46 of the township’s Vice and Immorality Ordinance in that defendant did discharge a firearm within 300 feet of a dwelling.

Section 46 provides:

No person shall discharge any firearm upon or across any State, County or Municipal road or highway, and no person except the owner or lessee of the property and persons specifically authorized by him in writing shall have in his possession a loaded gun while within 300 feet of any occupied dwelling in the Township of Chester or while within 400 feet of a school playground.

It is difficult to determine what happened before the municipal court. The notice of appeal to the County Court is “from the Judgment of the Municipal Court of Chester Township, orally entered on January 27, 1970, wherein said Court ruled that Section 46 of the Chester Township Vice and Immorality Ordinance was valid and denied the motion of the defendant to strike said Section of said Ordinance and to dismiss the charge brought thereunder against the defendant on Complaint ^302-69, dated October 22, 1969. At the conclusion of said ruling, the Judge of the Municipal Court of Chester Township granted permission to the defendant to appeal such decision and to stay the proceedings under the aforementioned complaint pending a determination on appeal as to the validity of Section 46 of the Township of Chester Vice and Immorality Ordinance.”

No testimony was taken before the County Court, the defendant presumably having proceeded under R. 3:10-3. During the course of the argument before that court, the township’s attorney stated that the incident happened in a parking lot within 300 feet of a house. The parking lot belonged to the State Preserve. In his brief defendant stated:

It was admitted by both sides, however, that it was within the coniines of the State property, whether or not it was in the open fields and woods or in the parking lot area.

Before the municipal court the only factual admission on behalf of defendant was: “I admit they were apprehended, that the apprehension was in the parking lot, but that’s as far as I can go.”

The County Court filed a letter-opinion affirming the “judgment” of the municipal court denying defendant’s motion. In the court’s view there was nothing in the ordinance which can support “the view that it was designed to control or regulate the taking of game. The ordinance as construed is designed to promote the safety and welfare of the community.” Section 46 was held valid under the provisions of N. J. 8. A. 40:48-1.18.

Judgments or orders must be reduced to writing. B. 4:42-1. This rule provides in part:

• Formal written judgments or orders shall he presented to the court for execution within 10 days after its decision is made known, unless such time is enlarged for good cause.

Appeals are not taken from decisions of courts, but from written judgments or orders. Credit Bureau Collection Agency v. Lind, 71 N. J. Super. 326 (App. Div. 1961). The County Court could have dismissed the appeal because no written order was signed by the municipal court from which an appeal can be taken. Since the County Court accepted the appeal and decided it as though it were taken from a written order of the municipal court and since the appeal involves a matter of public importance, we will pass this deficiency and deal with the merits of the appeal.

Before us the argument is made that the State has preempted “all of its municipalities in matters dealing with the acquisition, possession and use of firearms and, more particularly, as' to the use of firearms related to the activity of hunting.”

The New Jersey Constitution (1947) Art. IY, § VII, par. 11, establishes a presumption of validity of ordinances enacted by municipalities. This requires a liberal construction of municipal ordinances, and therefore a finding of preemption must be clear. Kennedy v. Newark, 29 N. J. 178, 187 (1959). Generally, to prevail in his claim of preemption defendant must show that there is an unresolvable conflict between the ordinance and the statute. Kennedy v. Newark, supra; Cranberry Lake Quarry Co. v. Johnson, 95 N. J. Super. 495, 511 (App. Div.), certif. den. 50 N. J. 300 (1967).

Alternatively, defendant can show preemption though no conflict exists by demonstrating an intent on the part of the Legislature to completely occupy the area being controlled to the exclusion of the municipalities. Summer v. Teaneck, 53 N. J. 548, 554 (1969); State v. Ulesky, 54 N. J. 26, 29 (1969); Kennedy v. Newark, supra. Absent the showing of an intent to totally preempt, a municipality pursuant to its delegated powers can deal with specific local problems by expanding control in that area as long as there is no conflict with the legislative proscription. Fred v. Mayor and Council, Old Tappan, 10 N. J. 515, 521-522 (1952); Kligman v. Lautman, 98 N. J. Super. 344, 355 (App. Div. 1967), aff’d 53 N. J. 517 (1969). Preemption is not to be lightly inferred and is strictly a question of fact. State v. Ulesky, supra.

Defendant argues that section 46 constitutes the regulation of hunting by the municipality and that it is, therefore, void. Eeliance is placed upon State v. Hackney, 83 N. J. Super. 400 (Cty. Ct. 1964). In that case it wa,s held that the substantial statutory scheme (N. J. 8. A. 13:lB-29 et seq.; N. J. S. A. 23:4-1 el seq.) which controls hunting shows an intent by the Legislature to apply uniform laws throughout the State so that any legislation regulating hunting by municipalities is void as being in conflict with the established public policy of the State [83 N. J. Super. at 402]. See also Hopewell Tp. v. Gruchowski, 29 N. J. Super. 605 (Law Div. 1954).

In State v. Hackney, supra, the ordinance declared void was directly related to hunting. It prohibited any type of hunting for wild game within the municipality. It was, therefore, directly in conflict with the requirements of the state hunting statutory scheme. In the present case the ordinance is a general regulation for the control of firearms. Its effect on hunting is only incidental. It makes no specific attempt to place controls for hunting that would conflict with the state statutory scheme. Essentially, it is an expansion of N. J. S. A. 23:4-16 which prohibits the same act but only “for the purpose of hunting, taking or killing any bird or animal.” Even if the ordinance could conflict with the hunting statutory scheme in certain applications, the ordinance is not to be declared invalid absent any intent to preempt the total field by the Legislature. Kennedy v. Newark, 29 N. J. 179, 187, supra; Sayreville v. Pennsylvania R. R. Co., 26 N. J. 197, 200, app. dism. 358 U. S. 44, 79 S. Ct. 43, 3 L. Ed. 2d 45 (1958).

State v. Hackney, 83 N. J. Super. 400, supra, is inapposite.

Section 46 does not conflict with the statutory scheme, yet it does, in part, prohibit the same activity that is prohibited by the state statute, N. J. S. A. 23 :4-16. Generally, a municipal ordinance of this type is valid absent any specific prohibitory provisions in the Constitution or state statutes. 56 Am. Jur. 2d, Municipal Corporations, § 375 at 410, 411. This general rule was followed in Poynter v. Walling, 4 Storey 409, 54 Del. 409, 177 A. 2d 641, 646 (Super. Ct. 1962).

Poynier involved the specific question of the validity of a municipal ordinance prohibiting an intoxicated person from driving a motor vehicle when a state statute covered the same subject. The Delaware court listed many cases going both ways. The court pointed out that in the cases declaring the ordinance invalid there was a finding that the municipal corporation lacked power to act; the ordinance conflicted with a state statute; or the subject was considered a matter of state not local concern [177 A. 2d at 647].

There remains the question as to whether section 46 which regulates possession and use of firearms in a limited situation is void under the theory either that it conflicts with N. J. 8. A. 2A:151-1 to 63 or that the Legislature has preempted the field.

There is no conflict between- these statutes and the ordinance. The statutory prohibitions as to possession, N. J. 8. A. 2A:151-56 to 63, do not apply to the possession covered by the ordinance. The ordinance only expands the prohibition. The issue is, therefore, whether the Legislature intended to totally preempt the field of firearm control thereby precluding any municipal control over firearms. 8tate v. Ulesky, 54 N. J. 26, supra.

Preemption must be determined by the intent oí the Legislature on the facts of each case. State v. Ulesky, supra. Usually, when the Legislature wishes to restrain all local action in a certain field, it will express that purpose. Kennedy v. Newark, supra, 29 N. J. at 187. This is especially true when the preemption would be of powers delegated to local government. 29 N. J. at 187.

In this ease the Legislature has expressly delegated to municipalities the power to “regulate and prohibit the sale and use of guns, pistols, firearms, and fireworks of all descriptions.” N. J. S. A. 40:48-l, subd. 18. Preemption would result in the repealer of this section. There was no express repealer in the legislation controlling guns and dangerous weapons. N. J. 8. A. 2A:151-1 to 63.

Can it be concluded that there was an implied repealer? Implied repealers of statutes are not favored in the law. Brewer v. Porch, 53 N. J. 167, 173 (1969); Dept. of Labor and Industry v. Cruz, 45 N. J. 372, 380 (1965); Goff v. Hunt, 6 N. J. 600, 606 (1951). When the Legislature enacts a statute, it is presumed that it is fully conversant with its own legislation. Brewer v. Porch, supra. The intent to repeal will be found when a later statute is so inconsistent with an existing statute on the same subject so as to preclude any reasonable possibility of their standing together. Brewer v. Porch, supra; Dept. of Labor and Industry v. Cruz, supra.

There is no inconsistency between the general delegated power in N. J. S. A. 40:48—1, subd. 18 and the explicit provisions in N. J. S. A. 2A:151—1 to 63. The regulation and prohibitions in N. J. S. A. 2A :151-57 to 63 refer to the use of weapons related to criminal activity. The power delegated to the municipalities provides for broad control especially when read in conjunction with N. J. S. A. 40:48-l, subds. 8 and 10. The logical result is that municipalities may control the use of firearms to promote the public safety and welfare.

Since the express power of the township to control firearms does not conflict with the statutory control of firearms, we find that the Legislature did not implicitly intend to preempt this power from the municipalities. With no preemption, section 46 enacted by the township pursuant to N. J. 8. A. 40 :48-l, subd. 18 is valid.

The order of the County Court is affirmed and the matter remanded for trial in the municipal court of the Township of Chester of the complaint against defendant.


text:
    IN THE MATTER OF THE GUARDIANSHIP OF SEAN MORAN, A MINOR.
    Superior Court of New Jersey Appellate Division
    Argued October 5, 1971
    October 8, 1971.

      Before Judges Goldmane, Collester and Mijsttz.

      Mr. Eugene T. Radclijfe argued the cause for appellant John J. Moran (Messrs. Powell, Davis, Dietz & Oolsey, attorneys).

      Mr. Martin L. Haines argued the cause for respondent Erieda L. Newberry (Messrs. Dimon, Haines & Bunting, attorneys).
   The opinion of the court was delivered by

Goldmann, P. J. A. D.

John J. Moran, as caveator, appeals from a County Court, Probate Division, judgment appointing Erieda L. Newberry guardian of the person and property of infant Sean Moran. John is Sean’s paternal uncle; Frieda is his maternal grandmother. The circumstances that led up to this case were tragic.

Sean, then about two years old, was living with his parents, Paul and Patricia Moran, in Hollywood, Florida, when, on January 1, 1970, the father shot and killed the mother and then shot himself, dying the next day after unsuccessful surgery. Grandmother Frieda, then 46, and her third husband Harold Newberry, then 49, were visiting with the Morans at the time. After the shooting Frieda phoned the paternal grandmother, Marie Moran, in Ohio and told her what had happened. Marie said she could not come to Florida. After Paul died, Frieda again spoke to Marie who told her to make funeral arrangements; Frieda later got a call from an Ohio funeral home to ship Paul’s body there.

Frieda testified that at the time in question she had talked over the phone from Florida to' three or four of the Moran brothers and sisters in Ohio, but none of them came to Florida. Frieda told Marie and the Moran kindred that she was going to take the child to New Jersey. There was no objection. Frieda left Florida with Sean on January 6 and came to Cinnaminson, N. J., where she resided until recently. (Following the grant of guardianship to her, she and her husband, together wtih Sean, moved to Birmingham, Alabama.)

Frieda had her Florida attorney apply to the Florida court for guardianship of Sean, but was unsuccessful because he was told.that since Frieda resided in New Jersey, the application should be made in this State.

Frieda subsequently filed a complaint with the Burlington County Surrogate for guardianship of Sean’s person and property. Notice was given Marie, the paternal grandmother. John Moran filed a caveat against the grant of guardianship, with the result that an order issued directing the parties in interest to show cause before the Burlington County Court why letters of guardianship should not issue to Frieda. Shortly thereafter Marie, the paternal grandmother, waived any right she might have to guardianship, and prayed that the application of her son John, Sean’s natural uncle, be approved. Frieda and her husband, as well as John and his wife, testified at the plenary hearing.

On this appeal John J. Moran claims that Sean was domiciled in Florida; Florida law should therefore be applied, the Burlington County Court should have refused jurisdiction, and he be qualified as guardian by virtue of his being Sean’s next-of-kin.

Frieda contends that the appeal should be dismissed for mootness or for practical reasons of comity because Frieda and Sean are no longer domiciled or resident in New Jersey. We are not attracted to this argument. The judgment here under review was handed down by a court which had jurisdiction over the parties and the res, Sean then being present and resident in New Jersey.

We find equally unpersuasive John’s argument that the County Court should have refused jurisdiction because Sean was a domiciliary of Florida at the time the matter was heard and the judgment entered. 1 Restatement, Conflict of Laws 2d, § 22, comment (i) (1971), states that where a child’s parents are dead and no guardian of his person has been appointed, the child should acquire a domicile at the home of a grandparent or other person who stands in loco parentis to him and with whom he lives—and the cases so hold.

Absent some compelling reason to tlie contrary, the child’s domicil should be in the place to which he is most closely related. The child should therefore have a domicil at the home of the person who stands in loco parentis to him and with whom he lives even though this person is not a blood relative, [at 92]

And see the cases cited to comment (i) at 94^95. The decisions to which we are referred in John’s brief are distinguishable on their facts. We therefore conclude that Sean was resident and domiciled in New Jersey at the time letters of guardianship were granted.

John’s choice of law argument is equally without merit. The Florida courts eschewed jurisdiction to grant guardianship, for the reason that Erieda and Sean were residents of New Jersey and should resort to the courts here. As noted, the New Jersey court, having had jurisdiction over the parties and the res, properly exercised its parens patriae jurisdiction. In Fantony v. Fantony, 21 N. J. 525, 535 (1956), the court expressly found that jurisdiction of a state to regulate the custody of infants found within its territory does not depend upon the parents’ domicile. All other things aside, Sean was a resident of New Jersey when the action was brought and decided — and that suffices. Id., at 536.

What we have said, of course, disposes of John’s additional argument that the County Court should have refused jurisdiction. Once again, the Florida courts had refused to accept jurisdiction, and everyone concerned was present in New Jersey when the case was heard and determined.

John further contends that he is entitled to guardianship as next-of-kin, since he stands in the nearest degree of consanguinity. He depends upon the statute relating to descent and distribution of intestate property, real and personal, which descends and is to he distributed equally to the next-of-kin in equal degree. Since property can only descend, John claims he is a closer next-of-kin than Erieda. To be considered, however, is the traditional table of consanguinity where one counts up from the intestate, one degree for each generation, until one reaches a common ancestor, and then down by one degree for each generation, from ancestor to claimant. Erieda would then be only two degrees from Sean, and John three.

To apply John’s reasoning under the statute of descent and distribution would result in a harsh result. We have always understood that the traditional table of consanguinity controls. Erieda is undoubtedly Sean’s nearest blood relative, and therefore should be considered his next-of-kin.

Sean is a child of very tender years and has been in the care of a loving grandmother since January 1970. All other considerations aside, to take him from the shelter of a good home to satisfy the desires of the Morans would not be in Sean’s best interests.

Affirmed.


author: Pascoe, J. C. C.

text:
    STATE OF NEW JERSEY, PLAINTIFF, v. HENRY HAMMOND, DEFENDANT.
    Camden County Court
    Decided July 16, 1971.

      Mr. Martin Margolit, Assistant Prosecutor, for plaintiff (Mr. A: Donald Bigley, Camden County Prosecutor, attorney).
    ■ Mr. N. Bruce MacNaul, for defendant (Messrs. Maressa, Console & Iavicoli, attorneys).
   Pascoe, J. C. C.

This is an appeal on a record established in the Collingswood Municipal Court pursuant to R. 3:23-l et seq. Defendant Hammond was convicted of two offenses: misstatement of fact in an application for registration of a motor vehicle, in violation of N. J. 8. A. 39:3-37, and application for a registration certificate during suspension, in violation of N. J. S. A. 39:3^34.

I find as fact that the defendant was the owner-operator of a vehicle travelling east on Route 73 in Berlin, N. J., on March 13, 1971. Trooper Stowal stopped him pursuant to a routine motor vehicle check. The trooper requested that defendant produce his driver’s license and vehicle registration certificate. He produced a New Jersey registration certificate with registration number SKS-300. This certificate had an issue date of November 1970 and an expiration date of July 1971. Defendant also produced a North Carolina driver’s license which had an issue date of November 1970. The trooper inquired whether defendant had any New Jersey motor vehicle violations and was told he had received a summons for a traffic accident in New Jersey in September 1969 but could not remember the disposition of the matter. The trooper then asked defendant to accompany him inside the Berlin barracks in order to await a confirmation of the defendant’s license status in this State. The trooper received information that defendant was involved in an accident in July 1968 and that his driver’s license and registration had been revoked in December 1968 for a violation of the Security Responsibility Law, N. J. B. A. 39:6-23 et seq. Defendant’s driver’s license had also been suspended three times thereafter. The certified abstract of defendant's driving record is marked S-2 in evidence.

Exhibit S-3, defendant's application for a vehicle registration certificate, contains the following question: “Is your registration certificate now revoked or suspended in any state?” To this defendant placed an “X” under “No.” The submission of this application resulted in the issuance of defendant's registration certificate in November 1970 by the Motor Vehicle Agency in Collingswood, in which municipality the complaints herein were filed.

It is noted by this court that there is nothing in the transcript to indicate that defendant was given notice of the suspension of his license and registration in 1968. As to the three subsequent suspensions, the orders of suspension dated February 10, 1969, May 13, 1970 and June 29, 1970 were returned undelivered by postal authorities. It is further noted that Trooper Stowal explained that it had been his experience that if a licensee did not receive notice that his license and registration had been revoked, this failure to receive notice would be noted on the back of the driving record abstract. No such entry was found.

The trooper indicated that after talking to defendant he got the impression that defendant knew he was on the revoked list. However, the inquiry here is whether as a matter of law, defendant's knowledge of revocation of registration is a material element of the respective offenses, assuming he was without knowledge.

Defendant contends that the suspension of his driver’s license and registration was ineffective since he failed to receive notice thereof. He contends that violation of N. J. 8. A. 39:3-34 and N. J. S. A. 39:3-37 requires guilty knowledge. Defendant claims he applied for a registration certificate while on the revoked list and made a misstatement of fact on his application for this registration without knowledge of the suspensions. He therefore submits that the convictions under these statutes should be reversed because there was a lack of scienter on his part.

These facts can be distinguished from State v. Wenoff, 102 N. J. Super. 370 (Cty. Ct. 1968). There defendant had his license revoked for driving while his license was revoked, in violation of N. J. S. A. 39:3-40. Several notices of suspension had been mailed to the defendant but not received. However, the court held that actual receipt of notice was not a prerequisite in a revocation proceeding. It did, however, acknowledge that the essential notice requirement was met by the actual notice defendant received on the traffic summons as to the possible revocation of his driving privileges. The notice and warning provide:

For failure to appear in response to this summons or to pay the prescribed fine and costs, a warrant may be issued for your arrest and your driving privileges may be revoked.

In other words, the court held that the due process requirements were satisfied by the “notice” provisions on the traffic summons. However, the “notice” provisions on the summons do not warn against the possible revocation of an operator’s registration certificate. This is the essential element of notice missing in the present case.

Thus, unlike the Wenoff case, here there is insufficient evidence of any notice to defendant Hammond of a possible revocation of his registration certificate. Therefore, there is not adequate proof to indicate that due process was satisfied in this ease.

The severity of the penalties that can be invoked substantiates the fact that these statutes are of a penal nature. This is particularly true with regard to N. J. S. A. 39:3-37, which provides for imprisonment for not more than one year, at the discretion of the court. This penalty exceeds the six-month term which has been considered the arbitrary maximum of punishment for petty offenses. State v. Macuk, 57 N. J. 1 (1970). Therefore, the possible severity of punishment provided for in these statutes justifies their characterization as gwasi-criminal in nature. State v. Rowe, 116 N. J. L. 48 (Sup. Ct. 1936).

Defendant contends that he received no notice of the suspensions; therefore, he submits that there was no scienter on his part. N. J. S. A. 39:5-30 provides that the Director of the Division of Motor Vehicles may suspend or revoke a registration certificate or driver’s license only after due notice in writing of the proposed suspension or revocation is sent to the licensee. If the Director fails to give the licensee sufficient notice, the revocation is ineffective. Bechler v. Parsekian, 36 N. J. 242 (1962). Furthermore, a motorist whose driver’s license is sought to be revoked is entitled to know precisely why the Director seeks the proposed revocation. The Director must specify which violation he charges. Parsekian v. Cresse, 75 N. J. Super. 405 (App. Div. 1962), aff’d 43 N. J. 326 (1964). The statute and case law emphasize the necessity of notice. This is consistent with the procedural due process and fundamental fairness concepts of ilie 5th and 14th Amendments to the U. S. Constitution. Notice implies knowledge. It seems unreasonable to assume that the requirement of notice is obviated with regard to convictions under N. J. S. A. 39:3-34 and N. J. S. A. 39:3-37. The notice requirements provided for under N. J. S. A. 39:5-30 seem to contemplate the scienter requirement for convictions under the above-cited statutes. The severity of the penalties involved further justify the interpretation of the requirement of guilty knowledge as an essential element in convictions under those statutes. If notice is received by the licensee pursuant to the requirements of N. J. 8. A. 39:5-30, his violation of N. J. S. A. 39:3-34 and N. J. S. A. 39:3-37 would be performed with actual knowledge on his part, thereby justifying the severity of the sanction.

A majority of states require notice prior to the revocation of an operator’s license as a necessary requirement of procedural due process. In some states actual receipt of notice is required before a suspension is effective. Mailing of notice alone is not enough. State v. Simmons, 172 N. E. 2d 194 (Ohio Ct. App. 1970); Hall v. Oregon State Depar tment of Motor Vehicles, 467 P. 2d 975 (Or. Ct. Apps. 1970); Simmons v. State, 443 S. W. 2d 852 (Tex. Cr. Ct. Apps. 1969); Poole v. State, 460 S. W. 2d 901 (Tex. Cr. Ct. App. 1970). However, the majority of states provide for notice and hearing prior to any suspensions without the requirement of actual notice. Sandel & Lastrapes v. Shreveport, 129 So. 2d 620 (La. Ct. App 1961); State v. Moseng, 254 Minn. 263, 95 N. W. 2d 6 (Minn. Sup. Ct. 1959); Wignall v. Fletcher, 278 App. Div. 28, 103 N. Y. S. 2d 7, aff’d 303 N. Y. 435 (Ct. App. 1952); Witsch Motor Vehicle Operator License Case, 194 Pa. Super. 384, 168 A. 2d 772 (Super. Ct. 1961). In these cases, due process requires that the licensee be given notice of the proposed suspension for it to be effective. Even without the requirement of actual notice, the presumption of delivery of notice does not arise until adequate proof of mailing of the notice has been adduced. Caprino v. Nationwide Ins. Co., 34 A. D. 2d 522, 308 N. Y. S. 2d 624 (App. Div. 1970). In the present case, there is not adequate proof to indicate that notice of the 1968 suspensions was mailed to defendant. Therefore, the court cannot find that the due process requirements were satisfied in this instance.

Since the violations involved are statutory, the Legis-. lature is free to require ox omit guilty knowledge as an element thereof. State v. Wenoff, 102 N. J. Super. 370 (Cty. Ct. 1968); State v. DeMeo, 20 N. J. 1 (1955); State v. Labato, 7 N. J. 137 (1951). However, the right to drive and operate a vehicle has been recently regarded more as a property right than a mere privilege. Bechler v. Parsekian, supra. Therefore, the incidents of fairness which underlie procedural due process appear to be applicable. David v. Strelecki, 97 N. J. Super. 360 (App. Div. 1967), rev’d 51 N. J. 563 (1968), cert. den. 393 U. S. 933, 89 S. Ct. 291, 21 L. Ed. 2d 269 (1968).

The punishments involved in this case are severe. Under N. J. S. A. 39 :3-37 the operator is subject to a fine of not less than $500 or imprisonment for not more than one year, or both, at the discretion of the court; and a ñne of not more than $500 or imprisonment for not more than three months, or both, at the discretion of the court, under N. J. 8. A. 39:3-34. Penal and criminal statutes are usually strictly construed to avoid penalties by construction. State v. Young, 95 N. J. Super. 535 (Cty. Ct. 1967). State v. Brown, 22 N. J. 405 (1956). Therefore, scienter is required for convictions under these statutes. In this case there is no proof indicating that defendant received or possessed notice of the suspensions of his driver’s license and registration. Therefore, the court has no basis upon which to make a finding beyond a reasonable doubt as to the guilty knowledge of defendant in order to sustain the convictions.

Defendant is declared not guilty.