text:
    ROY LEE HEAVNER AND REBECCA HEAVNER, PLAINTIFFS-APPELLANTS, v. UNIROYAL, INC., A CORPORATION OF THE STATE OF NEW JERSEY, AND PULLMAN, INC., A CORPORATION OF THE STATE OF DELAWARE, DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued January 10, 1972
    Decided January 27, 1972.

      Before Judges Sullivan, Leonard and Carton.

      Mr. William J. Cook argued the cause for appellants (Messrs. Brown, Connery, Kulp, Wille, Purnell & Greene, attorneys).

      Mr. Joseph H. Kenney argued the cause for respondent TJniroyal, Inc. (Messrs. Archer, Greiner, Hunter & Bead, attorneys; Mr. Charles Lee Harp, Jr., on the brief).

      Mr. F. Herbert Owens, III argued the cause for respondent Pullman, Inc. (Messrs. Kisselman, Deighan, Montano, King & Summers, attorneys; Mr. Arthur Montamo, of counsel; Mr. Douglas A. FauTlcner, on the brief).
   Per Curiam.

This personal injury and property damage action arises from the crash of plaintiff Eoy Lee Heavner’s truck in North' Carolina. In October 1966 plaintiff purchased from defendant Pullman, Inc. in Charlotte, North Carolina, a trailer and eight new Uniroyal truck tires. While driving the vehicle in North Carolina in April of the following year an accident occurred, causing it to be damaged and resulting in very severe injuries to plaintiff involving loss of eyesight.

Heavner and his wife brought this action in September 1970, charging that the accident was caused by a blowout of a defective tire manufactured by Uniroyal and sold to him by Pullman. Plaintiffs assert that both defendants are liable for breach of express and implied warranty, strict liability in tort, strict liability for misrepresentation, and negligence. The trial court granted both defendants’ motions to dismiss the personal injury aspect of the action on the ground that it was barred by N. J. S. A. 2A:14-2, which provides:

Every action at law for an injury to a person caused by the wrongful act, neglect or default of any person within this state shall be commenced within 2 years next after the cause of any such action shall have accrued.

Plaintiffs appeal, contending that the injuries resulted from breaches of contract and warranty and consequently that they fall within the purview of the four-year limitation contained in the Uniform Commercial Code. The thesis is that such injuries are different in character from other personal injury claims which must be brought within two years. The distinguishing factor, they argue, is the presence of a sale of an item which causes the personal injury. On that thesis the argument proceeds that the Legislature has granted the victim a longer period in which to sue. The Uniform Commercial Code provision reads as follows :

(1) An action for breach of any contract for sale must be commenced within four years after the cause of action has accrued. By the original agreement the parties may reduce the period of limitation to not less than one year but may not extend it. IN. J. S. A. 12A :2-725]

The narrow issue involved is whether the two-year statute of limitation provision of N. J. 8. A. 2A:14-2 or the four-year provision of the Uniform Commercial Code in N. J. 8. A. 12A:2-725 is applicable to the personal injury claim.

No appellate court of this State has thus far expressly decided this issue. The Pennsylvania Supreme Court has held that the four-year limitation governs in that state, on the basis that it has always been “recognized that a personal injury claim based upon a breach of warranty is a distinct claim from a personal injury claim based on negligence.” Gardiner v. Philadelphia Gas Works, 413 Pa. 415, 197 A. 2d 612, 614 (1964). It might be noted that Pennsylvania, after its Gardiner decision, adopted strict liability in tort in Webb v. Zern, 422 Pa. 424, 220 A. 2d 853 (Sup. Ct. 1966). In view of this holding, it is at least debatable whether the old distinction between types of personal injury actions set forth in Gardiner still will be recognized in Pennsylvania.

The case law of New Jersey in the products liability field suggests that such a distinction is more fancied than real and that the question involved is simply one of semantics. See Rosenau v. New Brunswick, 51 N. J. 130 (1968), where the court frankly recognized that the responsibility of a manufacturer to a consumer was grounded in strict liability in tort. See also, Associates Discount Corp. v. Palmer, 47 N. J. 183 (1966), in which Justice Hall’s concurring opinion refers to the Gardiner case. In a footnote Justice Hall stated:

New Jersey now views such actions as grounded in strict liability in tort, rather than in breach of a warranty of sale. See Cintrone v. Hertz Truck Leasing and Rental Service, 45 N. J. 434 (1965). It would seem, therefore, that we would, despite our adoption of the code, probably still apply the general two-year statute, [at 193]

In the recent case of Garfield v. Furniture Fair-Hanover, 113 N. J. Super. 509 (Law Div. 1971), Judge Eusco held that N. J. S. A. 2A :lA-2 applied to injuries resulting from a bed which had collapsed. The bed had been loaned to plaintiffs by defendant. The court opined that even if the transaction were a sale rather than a bailment, N. J. S. A. 2A:lA-2 would still apply since there was nothing in N. J. S. A. 12A:2-725 indicating that the Legislature intended to supersede the normal statute of limitations in personal injury actions. See also Raskin v. Shulton, Inc., 92 N. J. Super. 315 (App. Div. 1966).

We agree that actions of this kind, even though they may arise out of the consequences of sales, are essentially personal injury actions and as such are controlled by the two-year statute of limitation provision. Denominating them as actions arising out of a breach of contract or misrepresentation does not change their inherent character.

Furthermore, as a matter of legislative interpretation, we perceive no intention on the part of the Legislature, in adopting N. J. 8. A. 12A:2-725 as a part of the Uniform Commercial Code, to change the two-year statute of limitation period normally applicable to personal injury- actions under N. J. S. A. 2A:14-2. The fact that the Legislature amended the companion section. N. J. 8. A. 2A:14-1, to eliminate its applicability to an action “for breach of any contract for sale governed by N. J. 8. A. 12A :2-275,” while making no similar amendment of N. J. 8. A. 2A:14^2 tends to confirm this conclusion.

Affirmed.


source: Caselaw Access Project

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

license: Public Domain

text:
    IN THE MATTER OF THE TRANSFER INHERITANCE TAX ASSESSMENT IN THE ESTATE OF GERARD BARNES LAMBERT, DECEASED. JOHN W. DRYE, JR., J. RICHARDSON DILWORTH AND BANKERS TRUST COMPANY, EXECUTORS OF THE LAST WILL AND TESTAMENT OF GERARD BARNES LAMBERT, DECEASED, APPELLANTS, v. SIDNEY GLASER, ACTING DIRECTOR, DIVISION OF TAXATION, DEPARTMENT OF THE TREASURY, STATE OF NEW JERSEY, RESPONDENT.
    Superior Court of New Jersey-Appellate Division
    Argued December 7, 1971
    Decided January 28, 1972.

      Before Judges Lewis, Kolovsey and Halpesn.

      Mr. E. Parker Hayden, Jr. argued the cause for appellants (Messrs. Roberts & Hayden, attorneys).

      Mr. Herbert K. Glickman, Deputy Attorney General, argued the cause for respondent (Mr. George F. Kugler, Jr., Attorney General of New Jersey, attorney).
   The opinion of the court was delivered by

Lewis, P. J. A. D.

Appellants, executors of the last will and testament of Gerard Barnes Lambert, deceased, challenged the final determination and tax assessment of the Division of Taxation, Transfer Inheritance Tax Bureau (Bureau), with respect to certain property transfers made by decedent during his lifetime.

We affirm substantially for the reasons set forth in the Assistant chief examiner’s findings of fact and conclusions of law that were adopted by the Bureau. The issue presented being one of first impression, we deem it advisable to state the salient facts and the controlling principles of law.

In 1934 Lambert purchased 22 single-premium life insurance policies in conjunction with 22 nonrefundable annuity contracts. The total face amount of the single premium insurance policies was $1,800,000, and the payment therefor was $996,422.75. The cost of the annuity contracts was $936,227.25, which guaranteed the purchaser an annual income of $60,443.74 for the remainder of his life. That same year Lambert created an irrevocable inter vivos trust and assigned to the trustees thereof all of the life insurance proceeds, retaining no reversionary or other interest in the policies. He never received any dividends or income from them. Lambert’s children were the primary beneficiaries of the life insurance trust, but they could not benefit therefrom until the grantor’s death.

Lambert retained ownership and possession of the annuity contracts and received the annual income therefrom until 1941. Thereafter, and prior to 1953, he made irrevocable assignments of all the income payments to various charitable organizations; he received no benefits from the annuity transaction after 1952. ■

On February 25, 1967 Lambert died and the trustees collected on the insurance policies a total sum of $2,021,956.56. The Bureau assessed a transfer inheritance tax of $72,105.27 against the proceeds of the insurance trust which was then distributable; this was in addition to the normal taxes on decedent’s reported estate of approximately $6,500,000 which are not here involved.

The pivotal issue before us is whether, within the meaning of N. J. 8. A. 54:34r-l and the exemption provisions of N. J. 8. A. 54:34-4 and 54:34^1.1, the action of the Bureau in levying a transfer tax on the insurance trust was proper. The language of the pertinent statutory provisions reads:

54:34r-l Transfers taxable
Except as provided in section 54:34r-4 of this Title, a tax shall be and is hereby imposed at the rates set forth in section 54:34r-2 of this Title upon the transfer of property, real or personal, of the value of five hundred dollars ($500.00) or over, or of any interest therein or income therefrom, in trust or otherwise, to or for the use of any transferee, distributee or beneficiary in the following cases:
$ »!« $ $ $ $ $
c. Where real or tangible personal property within this State of a resident of this State or intangible personal property wherever situate of a resident of this State or real or tangible personal property within this State of a non-resident, is transferred by deed, grant, bargain, sale or gift made in contemplation of the death of the grantor, vendor or donor, or intended to take effect in possession or enjoyment at or after such death.
54:34rA Exemptions
The following transfers of property shall be exempt from taxation:
e. Property passing to a trustee or trustees of any trust deed or agreement heretofore or hereafter executed by virtue of any contract of insurance heretofore or hereafter in force insuring the life of a resident or nonresident decedent and the proceeds of which are paid er payable at or after the death of such decedent to such trustee or trustees for the benefit of a beneficiary or beneficiaries having any present or future, vested, contingent or defeasible interest under such trust deed or agreement.
54:34-l.l Irrevocable disposition of reserved income, rights, etc., over property transferred 3 years prior to death
A transfer of property by deed, grant, bargain, sale or gift wherein the transferor is entitled to some income, right, interest or power, either expressly or by operation of law, shall not be deemed a transfer intended to take effect at or after transferor’s death if the transferor, more than 3 years prior to death, shall have executed an irrevocable and complete disposition of all reserved income, rights, interests and powers in and over the property transferred. L. 1955, c. 135, p. 623. § 1-

The New Jersey Transfer Inheritance Tax, N. J. 8. A. 54:33-l et seq., is not a property or estate tax, but a privilege levy on the right of succession to property transferred by a decedent, levied on the transferee, in certain cases specified by the Legislature. See In re Lichtenstein, 52 N. J. 553, 559 (1968).

The executors concede that the insurance policies in the instant matter would not have been issued to their insured without the annuity contracts. The statutory exemption of life insurance policies is therefore inapplicable since the element of risk of death has been offset by the annuity contracts. The type of insnred-annuitant agreements under review involves a risk “typical of an investment transaction rather than of life insurance.” Tilney v. Kingsley, 43 N. J. 289, 292 (1964). See also Helvering v. LaGierse, 312 U. S. 531, 61 S. Ct. 646, 85 L. Ed. 996 (1941). Accordingly, the insurance policies are not within the design of N. J. 8. A. 54:34-4(e). The executors do not seriously contend otherwise. They in essence rely primarily upon the 1955 amendment embodied in N. J. S. A. 54:34-1.1 supra.

It is argued that where, as here, the grantor reserved in the annuity agreements some income, right, interest or power, and he later irrevocably disposed of all his interest therein, there is no transfer intended to take effect at or after death, and hence the ultimate distributable proceeds of the insured-annuitant transaction would not be subject to a succession or transfer tax. We note, however, that the statute relied upon makes no specific reference to life insurance proceeds such as was done in N. J. 8. A. 54:34-4(b), (c) and (f), and it is reasonable to assume that, if the Legislature had intended by the 1955 enactment to comprehend life insurance payable upon death, with or without concomitant annuity contracts, it would have so provided in language free from doubt and uncertainty.

It is also urged that the 1955 statute was enacted to conform the New Jersey inheritance tax law to the federal estate tax law and to the estate and inheritance tax laws of New York and Pennsylvania, and we are referred to the statement attached to the 1955 Assembly Bill 297 which was ultimately enacted innto law as section 1 of chapter 135 of the laws of that year. An examination of the history of that legislation reveals that it was not sponsored by the Division of Taxation but was apparently adopted to resolve a narrow estate tax problem then pending which did not concern life insurance or annuity contract assets. There is nothing in that history to suggest that it was enacted to alter the essential nature of the New Jersey transfer inheritance tax as a succession levy.

The argument that the proceeds of the instant life insurance policies should be exempt because decedent had relinquished all his interest in the policies and the conjunctive annuities, and that N. J. 8. A. 54:34H.l was adopted to bring the law of New Jersey in harmony with federal and neighboring state laws, ignores the concept of a succession tax levied upon a transferee vis-á-vís a property or estate tax, and the fact that New Jersey, unlike the Eederal Government, has not provided for the separate taxation of inter vivos gifts. In Tilney v. Kingsley, supra, our Supreme Court said:

* * * It does not follow that whenever income is not retained the transfer must be beyond the statute. On the contrary, the statute plainly requires only an intention that the transfer take effect in possession or enjoyment at or after the death of the transferor. If such is the intent and ultimately the fact, it does not matter whether the transferor retained an interest in the thing transferred or whether title as such vested in the transferee before the transferor’s death. Schroeder v. Zink, 4 N. J. 1, 9 (1950) ; Hartford, v. Martin, 123 N. J. L. 283, 286-287 (E. & A. 1939) ; In re Hollander['s Estate], 123 N. J. Eq. 52, 55-56 (Prerog. 1938) ; Hasbrouck v. Martin, 120 N. J. Eq. 96, 102 (Prerog. 1936) ; cf. Cruthers v. Neeld, supra (14 N. J. [497], at pp. 502-503) ; Bose v. Division of Taxation, 5 N. J. Super. 266, 269-270 (App. Div. 1949), certif. denied 4 N. J. 74 (1950). [43 N. J. at 296-297]

Finally, it should be noted that since an orderly society is impossible without government, and revenue is the lifeblood of government, tax statutes should be construed with an eye to the fundamental principle that "ordinarily all property shall bear its just and equal share of the public burden of taxation.” Bloomfield v. Academy of Med. of N. J., 47 N. J. 358, 363 (1966). It follows that a statute granting an exemption from taxation must be strictly construed and that those claiming entitlement to a statutory tax exemption will bear a heavy burden of proof. Ibid. We recognize that strict construction of statutory exemptions to taxation does not mean a begrudging construction, but rather "it means an exemption shall not he extended beyond the ascertainable intention of the Legislature and hence an exemption must be denied if a purpose to grant it is doubtful.” Deubel v. Kervick, 33 N. J. 568, 574 (1960). Doubts are to be resolved in favor of the government and against the person seeking the shelter of an exemption from taxation.

Thus viewed we are satisfied that the present record supports the transfer inheritance tax assessment here challenged.

Affirmed.


author: Per Curiam.

text:
    RYAN SCHWARTZ, LINDA SCHWARTZ, RANDY SCHWARTZ, ROGER SCHWARTZ, JR., INFANTS BY THEIR GUARDIAN AD LITEM, ROGER SCHWARTZ, CATHERINE SCHWARTZ AND ROGER SCHWARTZ, INDIVIDUALLY, PLAINTIFFS-APPELLANTS, v. U. S. RUBBER CORP., A CORPORATION, U. S. ROYAL TIRE, GENERAL MOTORS CORP., A CORPORATION, A. C. CHEVROLET DISTRIBUTORS, CATHERINE SCHWARTZ AND ROGER SCHWARTZ (AS TO CLAIMS ARISING OUT OF INFANTS’ INJURIES ONLY), DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey-Appellate Division
    Argued January 10, 1972
    Decided January 25, 1972.

      Before Judges Sullivan, Leonard and Carton.

      Mr. Bernard Ghazen argued the cause for appellants.

      Mr. Roger G. Ward argued the cause for respondent ITniroyal, Inc. (Messrs. Pitney, Hardin & Kipp, attorneys; Mr. Richard L. Zuclcer, on the brief).

      Mr. Fdward G. Hillis argued the cause for respondents Catherine Schwartz and Roger Schwartz (Mr. Henry O. Ha-hick, attorney).
   Per Curiam.

This appeal involves the issue whether any retroactive effect should be given to the decision in France v. A. P. A. Transport Corp., 56 N. J. 500 (1970), which allows suits between unemancipated children and their parents for injuries suffered as a result of the negligent operation of a motor vehicle. We conclude that Darrow v. Hanover Township, 58 N. J. 410 (1971), controls as is indicated by the June 8, 1971 order of the Supreme Court denying certification of the then pending appeal in this case.

Affirmed.


text:
    TOWNSHIP OF WAYNE, RESPONDENT-APPELLANT, v. ROBBIE’S, INC., PETITIONER-RESPONDENT, AND DIVISION OF TAX APPEALS, DEPARTMENT OF TREASURY, STATE OF NEW JERSEY, RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued December 20, 1971
    Decided January 27, 1972.

      Before Judges Collbster, Mintz and Lynch.

      Mr. Robert S. Moraff argued the cause for appellant (Mr. Joseph J. Be Luccia, Township Attorney, attorney).

      Mr. John E. Wolf argued the cause for respondent (Mr. Abram J. Precker, attorney).

      Mr. Herbert K. Glickman, Deputy Attorney General, submitted a statement in lieu of brief for Division of Tax Appeals (Mr. George F. Kugler, Jr., Attorney General of New Jersey, attorney).
   Per Curiam.

This ease involves an interpretation of the so-called “Freeze Act” (N. J. S. A. 54:2-43) as applied to a situation where a municipality and the taxpayer entered into a consent judgment in the Division of Tax Appeals as to the true value of the property involved for the tax years 3 967 and 1968. More particularly, the issue is whether such judgment “froze” the assessment for the year 1969.

Appellant first argued that the consent judgment for the years 3967 and 1968 was entered under a mistake of fact on the part of the municipal authorities. That contention has now been withdrawn and there remains only the issue as to whether or not the 1969 assessment shall, because of the Freeze Act, be identical with the judgment for the years 1967 and 1968.

The assessments, the county Tax board action, and the action of the Division of Tax Appeals for the years involved were as follows:

In the Division of Tax Appeals appellant municipality claimed that its proofs would bring the case within the exception to the “freeze,” i. e., that there were “changes in the value of the property occurring after the assessment date.” N. J. 8. A. 54:3-43. It offered to prove that the value of the subject land had increased in value after the relevant date. We are told that such increase has occurred because of the development of the Willowbrook Shopping Center, “one of the world’s largest shopping centers,” in the vicinity of the subject property. The Division judge rejected the municipality’s proffer of proof of such increase in value, saying that “the grounds set forth by Wayne, namely, the increase in the value of the land, in the premises in question in this surrounding land [sic] greatly increased in value is not one of the exceptions set forth in the statute.” No findings of fact were made and the foregoing is the only explanation we have for the court’s conclusions. In any event, we hold that changes in the value of the laud after the assessment date, if proved, would avoid the “freeze” as to 1969. Cf. Hudson-Webber Realty Co. v. City of Southfield, 18 Mich. App. 66, 170 N. W. 2d 510 (Ct. App. 1969). Our statutory language can bear no other construction.

For the first time, at oral argument, respondent taxpayer argues that the foregoing exception does not apply hero because N. J. S. A. 54:2 — 43 would permit the municipality to offer proof of change only if the municipality had filed a petition of appeal herein, and had stated in its petition the nature of the changes — this by reason of the sentence appearing in the statute and reading as follows:

Where such changes are alleged, the petition of appeal shall specifically set forth the nature of the changes relied upon as the basis for such appeal.

Here the municipality did not take any appeal and, of course, no petition of appeal which sets forth the “nature of the changes relied upon for such appeal” was filed. But there was nothing from which it could have appealed. For the tax year 1969 the municipality fixed the original assessment of the land at $107,000 and the county board affirmed. Obviously, the municipality was not “aggrieved” thereby and therefore had no occasion to appeal to the Division. N. J. S. A. 54:2-39.

What, then, is the significance of the reference to the “petition of appeal” and the “nature of the changes relied upon as the basis for such appeal,” as provided in the statute? Respondent taxpayer contends that unless the municipality has filed an appeal it cannot prove changes in value, for the exception is not “triggered” until such a petition is filed.

In seeking to ascertain the legislative intent it is appropriate to consider the circumstances at the time the first bill to establish the. “freeze” was introduced in the Legislature. Cf. Crater v. Somerset County, 123 N. J. L. 407, 413 (E. & A. 1939); see also, State v. Spindel, 24 N. J. 395, 402-403 (1957) ; Grogan v. DeSapio, 11 N. J. 308, 323 (1953). That occurred on January 21, 1946, in the form of Assembly Bill 68. The Legislature was at that time fully aware of the then recent history of the City of Jersey City having restored thousands of assessments which had in the previous tax year been set aside by the Hudson County Board of Taxation. See Jersey City v. Division of Tax Appeals, 5 N. J. Super. 375 (App. Div. 1949), ail’d 5 N. J. 433 (1950). When the county board set aside the city’s assessments the city filed a total of approximately 70,000 appeals for the tax years 1943, 1944 and 1945. It was in this climate that the first “freeze” bill was introduced. It was opposed in the Legislature by the leading Assemblymen from Jersey City, on the ground that “it perpetuated a decision by [the Division of Tax Appeals] which bars taxing districts from appealing reductions which have been granted to taxpayers by County Tax Boards until after three years.” Newark Evening News, March 13, 1946. The decision referred to related to the thousands of appeals which had been taken by Jersey City and had been decided September 4, 1945 (In re Jersey City, 23 N. J. Misc. 311 (Bd. Tax App. 1945); see also, 24 N. J. Misc. 315 (Bd. Tax App. 1946)), only a few months before the introduction of the “freeze” bill. Obviously, then, the Legislature, in passing the act, had in mind those graphic instances where a municipality had, in fact, filed appeals. It therefore provided for the contents of the petition to be filed in such cases. It was not concerned with instances where a municipality had no occasion to file an appeal.

In Giordano v. City Commission, Newark, 2 N. J. 585 (1959), it was said:

In construing a statute, where ambiguity exists or a literal interpretation would lead to anomalous or absurd results, the spirit of the law controls the letter. Jensen v. Woolworth, 92 N. J. L. 529 (E. & A. 1919) ; Bourne v. Levine, 100 N. J. Eq. 141 (Ch. 1926). See, also, 3 Sutherland Statutory Construction, § 6802 [at 594]

To hold that the merely procedural requirements as to what shall be contained in a petition of appeal are to be literally applied when, as here, the municipality did not — and could not — file such an appeal would defeat the spirit and substantive intent of the statute and lead to anomalous and absurd results. Such construction cannot be made. Robson v. Rodriquez, 26 N. J. 517, 528 (1958).

We are convinced that the legislative intent in adopting the “Freeze Act” was that, if changes in value were to occur after an assessment date, they were to be applied whether or not the municipality was the party which, in fact, had taken the appeal. The exception in that respect is as much a part of the statute as the “'freeze” itself. And such construction conforms with the statutory obligation to assess with “true value” as a polestar, subject, of course, to whatever ratio is to be applied in a particular municipality. Cf. Baldwin Construction Co. v. Essex County Board of Taxation, 16 N. J. 329 (1954) ; N. J. S. A. 54:4-2.25.

We therefore hold that the Division erred in refusing to permit the city to offer proof of “changes in value” after the applicable assessment date.

Keversed and remanded for a plenary hearing.

      The Division figures (total of $107,000) for 1967 and 1968 reflect the settlement embodied in the consent judgments. The record before us is unclear as to whether the city land assessment for 1968 was $107,000 or $37,000. The resolution of that ambiguity is not necessary to a treatment of the issue before us and therefore we will not consider it further.


author: Stamler, J. S. C.

text:
    TOWNSHIP OF HANOVER, ET ALS., PLAINTIFFS, v. TOWN OF MORRISTOWN, ET ALS., DEFENDANTS, AND THE NATIONAL BUSINESS AIRCRAFT ASSOCIATION, INC., ET ALS., PETITIONERS.
    Superior Court of New Jersey Chancery Division
    Decided January 10, 1972.

      Mr. Harry L. Sears for all plaintiffs (Messrs. Young and Sears, attorneys for Township of Hanover, Borough of Florham, Park, A. Stewart Dunford, Thomas E. Kenny, Martin B. Monroe, Joseph Elsman, John E. Elaherty, Norman S. Weinberger; Messrs. Mills and Hoyle, attorneys for Township of Morris and Borough of Madison).

      Mr. Edward F. Broderick, Jr., for defendants Town of Morristown and Morristown Airport Commission.

      Mr. Waller F. Waldeau for all petitioners (Messrs. Stryker, Tams & Dill, Attorneys for all applicants of intervention) .
   Stamler, J. S. C.

The original complaint in the case at bar was filed on July 24, 1969. The trial began on October 14, 1969 and lasted for 12 full trial days plus one additional day for site inspection. Thirty-eight witnesses, lay and expert, testified. A prodigious number of documents, sketches, surveys, plans, etc., were received in evidence. Arguments were concluded on November 5. The court on December 10, 1969 rendered its opinion, which is reported in 108 N. J. Super. 461 (Ch. Div. 1969). On March 23, 1970 judgment was entered. As noted in the concluding paragraph of the opinion and in the first paragraph of the judgment, the court utilized the resources of not only tire attorneys for the respective parties but the parties themselves and a variety of technical consultants to formulate what it considered an experimental judgment. All attorneys approved the form of the judgment.

On May 17, 1971 a petition to intervene was filed. Those who now seek to become defendants by intervention are:

The National Business Aircraft Association, Inc. (hereinafter “NBAA”). It is a New York corporation with its principal place of business in Washington, D.C. Its 840 members are corporations located in 42 states, the District of Columbia and Canada. It is a nonprofit organization formed to promote the aviation interests of its member corporations operating aircraft as an aid to the conduct of their respective businesses. Avowed is their purpose “* * * to advance and maintain and enlighten understanding on the part of governmental and airport authorities of problems; to take such steps as are proper and necessary in order to promote better relations and secure proper advantages from regulatory and other agencies, and by these means to obtain wider recognition of the fact that the aviation activities of its members are of primary importance to the domestic economy of the nation.”
The Air Transport Association of America (hereinafter “ATA”), an unincorporated association with its headquarters in Washington, D.C. Its 32 members are the commercial air carriers serving the United States. Its purposes are to encourage cooperation between its members and to represent the common interests of its member airlines to public and governmental agencies. In fulfillment of these purposes the ATA has participated in litigation throughout the nation concerning the scheduled airlines.
Additionally seeking to be admitted as defendants are 12 major air carriers: Allegheny Airlines, Inc., American Airlines Inc., Braniff International, Delta Airlines, Inc., Eastern Airlines, Inc., Mohawk Airlines, Inc., National Airlines, Inc., Northwest Airlines, Piedmont Airlines, Trans-Caribbean Airlines, Inc., Southern Ainoays, Inc., and United Airlines, Inc. Each of the foregoing is a Delaware corporation except Braniff (Nevada), Mohawk (New York), National (Florida), Northwest (Minnesota) and Piedmont (North Carolina). Each holds a certificate of public convenience from the Civil Aeronautics Board (hereinafter “CAB”) to serve Newark Airport, where each maintains a place of business.

Petitioners seek to alter only two paragraphs of the judgment, specifically paragraph “0” which prescribes a preferential runway system for jet aircraft, and paragraph “I” which limits jet aircraft operations at Morristown Municipal Airport (hereinafter “MMTJ”).

Plaintiffs were six individual citizens and four small municipalities. The latter, Hanover, Morris Township, Elorham Park and Madison, have a total population of less than 60,000. The citizens of these towns residing or working in close proximity bitterly complained of the nuisance created by the operations at Morristown Municipal Airport.

Defendants Town of Morristown and Morristown Airport Commission state that they have no objection to intervention by the two associations and the 12 airlines. Plaintiffs strenuously resist.

Seven months after entry of judgment, on October 21, 1970, the Federal Aviation Administration (hereinafter “FAA”), through its airport traffic control tower at MMU, issued a “tower bulletin” prescribing the official noise abatement procedures and preferential runway system for jet aircraft using the airport. Petitioners say that because this tower bulletin was promulgated by FAA, an agency created by the Congress of the United States, it must be considered as preempting this field of regulation. Virtually all of the owners of nonmilitary, noncommercial jet aircraft in the United States are members of NBAA. All of the fixed based jet aircraft owners at MMU are members of NBAA. It is urged that paragraph “I” forbids owners of jet aircraft access to national airspace for almost one-half of the time each week; that access to the national airspace is a right granted by federal statute; therefore “I,” which limits the hours of operation on the week days and Sundays, is in conflict with supreme federal law. Asserting interference and a direct burden on instrumentalities of interstate commerce, petitioners argue that it is beyond the power of any other agency of government, including this court, to impose regulations. If intervention is granted, petitioners desire to reopen the case for consideration of the judgment and offer to present legal arguments to show that this court was without jurisdiction to grant the relief in the judgment because it infringes on an area preempted by Congress and is an undue burden on interstate commerce. Petitioners also state that, if permitted to intervene, they will present testimony in open court on the “national and regional implications of the judgment” to support reasons for vacating paragraph “I” on general equitable grounds. The ultimate goal is to lift the restraints on operations contained in paragraphs “C” and “I” of the judgment.

Petitioners assert that they can bring to this court’s attention information not previously considered and pertinent facts developed subsequent to the experimental judgment. They state that they are not asking for a reconsideration of any matters fully presented and considered for determination except as may be changed by later developments. Attorneys for petitioners say that they were required to await the preparation of the transcript to review it in order to present arguments on intervention. This, they aver, is the reason for delay, for the transcript was not substantially completed until May 10, 1971.

R. 4:33-1 provides for intervention as of right if those who seek to intervene (a) make timely application, (b) claim an interest relating to the subject matter of the action, (e) are so situated that the disposition of the action may as a practical matter impair or impede their ability to protect that interest, and (d) that interest is not adequately represented by the existing parties. The four standards are conjunctive.

R. 4:33-1 is, taken substantially from F. R. Civ. P. 24, 28 U. S. C. A. Rule 24. There are few decisions in our State concerning R. 4:33-1 and therefore we must look to those cases decided by the federal courts. Testut v. Testut, 32 N. J. Super. 95, 99 (App. Div. 1954). Petitioners rely upon Cascade Natural Gas Corporation v. El Paso Natural Gas Co., 386 U. S. 129, 87 S. Ct. 932, 17 L. Ed. 2d 814 (1967). There a state, a customer and a competitor, sought to intervene in a government anti-trust suit after the suit had been tried, appealed to the United States Supreme Court and remanded for divestiture proceedings. The state’s interest was to insure competitiveness within the market in that state; the customer’s interest was to be protected from paying indirectly the costs of an unfair divestiture, and the competitor’s interest was to insure adequate supply from El Paso. The District Court denied intervention. The Supreme Court reversed, holding that the applicants for intervention should have been permitted to intervene as of right. That case is readily distinguishable from the case at bar. There the total effect of the ordered divestiture proceeding was to become a new trial and certainly the state, the customer and the competitor would have had a right to intervene had the divestiture trial been a separate trial and had the application been made forthwith. There is no question that a liberal interpretation has been given by the United States Supreme Court to F. R. Civ. P. 24. There are, however, limitations, and the broad sweep of Cascade has been narrowed. See United States v. Automobile Manufacturers Ass’n, Inc., 307 F. Supp. 617 (C. D. Cal. 1970), affirmed p. c., 397 U. S. 248, 90 S. Ct. 1105, 25 L. Ed. 2d 280 (1970).

After noting that intervention after judgment is not often granted, the court said in Clarke v. Brotvn, 101 N. J. Super. 404 (Law Div. 1968) :

The question of timeliness cannot be considered in vacuo. Whether an application to intervene is timely does not depend solely upon the amount of time that may have elapsed since the institution of action by the moving party, although of course that is a relevant consideration. See 4 Moore’s Federal Practice, p. 98. Other factors which must be considered in connection with timeliness are whether the granting of the motion would entail appreciable prejudice to the other parties or the court, and at what stage in the total proceedings the motion to intervene is made, [at 410]

The court iu Clarke cited Tesseyman v. Fisher, 231 F. 2d 583 (9 Cir. 1955), and held that intervention is within the discretion of the trial court and untimeliness was sufficient ground for denying the motion to intervene.

In United States v. Blue Chip Stamp Company, 272 F. Supp. 432 (D.C. Cal. 1967), aff’d, Thrifty Shoppers Script Co. v. United States, 389 U. S. 580, 88 S. Ct. 693, 19 L. Ed. 2d 791, the trial court said:

The rule for intervening after entry of a final judgment is set forth in Barron & Holtzoff, Fed. Prae. & Proc. 2 If 594:
‘Intervention may be allowed after a final judgment or decree if it is necessary to preserve some right which cannot otherwise be protected, but such intervention will not be permitted unless a strong showing is made.’
Petitioners have failed to make any showing at all as to any right which may only be protected by intervention. Furthermore, there is no showing that their applications are ‘timely.’
Rule 24 fails to provide any standard by which timeliness may be tested. Thus, it is necessary to look to all the circumstances in a given case. However, the courts do not look with favor upon one who, fully aware of what has transpired, nonetheless fails to act on his rights and is unreasonably tardy in filing a petition for intervention. Thus, it has been stated:
‘[W]e might say we do not see any reason why these interveners could not have sought intervention much earlier. The Court should also consider the state of the cause. That is, as we have pointed out, the case has been concluded; a decree entered; and the parties have reached an amicable settlement and dismissed their appeal. The applicants for intervention here have in effect slept on their rights, and now they want this Court in effect to administer the motion picture industry in the distribution of motion pictures in Western Pennsylvania. We do not feel that this is a function of a district court.’ Basle Theatres, Inc. v. Warner Bros. Pictures Distributing Corp., 24 F. R. D. 476, 477 (W.D. Pa. 1959). [272 F. Supp. at 435]

The foregoing guidelines are useful in helping this court in the exercise of its discretion.

Petitioners stress the acts of Congress over aviation and argue preemption and supremacy. Both arguments were presented to tire trial court which considered and resolved these in its opinion (108 N. J. Super. 461 (Ch. Div. 1969).

Attention is next addressed to questions of timeliness of the petition and immediate interest of petitioners.

The complaint was filed in July 1969. The case immediately obtained wide publicity, which continued during the entire litigation. News reports and editorials were not limited to New Jersey newspapers. One New York paper with extremely broad circulation presented cartoons and caricatures in addition to its news stories. It cannot be seriously urged that each and all of the petitioners were unaware that the trial was going on.

It is admitted by petitioners that one NBAA member company had its aircraft based at MMII since 1951. At the time of trial there were five NBAA members based at Morris-town, and one company which controls another NBAA member had recently moved its fan jet Falcon to the MMTT. These companies are presently operating eight jet aircraft. At least three, if not more, of these companies have what are called “NBAA representatives.” Bedoro, in his affidavit, acknowledges that the jets using MMU, whether as a fixed base or as transient, are owned by members of the NBAA. It appears incredible that these NBAA representatives only learned of the pending litigation after the judgment was entered.

An essential prerequisite to intervention is timeliness, which should be equated with diligence and promptness. One who is interested in pending litigation should not be permitted to stand on the sidelines, watch the proceedings and express his disagreement only when the results of the battle are in and he is dissatisfied.

Petitioner’s attack on the judgment is limited only to paragraphs “C” and “I.” Paragraph “C” reads as follows :

O. Having determined from the evidence that the wind rose patterns at tile Morristown Airport indicate that the prevailing winds favor the utilization of Runway 5-23 approximately ninety percent of the time, it is directed that after the completion of the extension of said runway, that the preferential runway at Morristown shall be 5-23. This runway shall be utilized as the preferential one by all jet aircraft landing and taking off at Morristown, except as follows:
(1) When the cross wind component on 5-23 is found to be in excess of twenty (20) knots;
(2) When an emergency landing or take-off situation exists;
(3) When the use of Kunway 12-30 shall be requested and/or directed by the Airport Tower personnel in the interests of flight safety. Furthermore, such preferential runway program when initiated, shall be under the direction and guidance of F.A.A. control tower personnel and enforced by the management of Morristown Airport.

This paragraph was acceptable to the parties to the initial litigation. EAA issued its “Tower Bulletin” five months after the judgment complained of and described 5-23 as the “Preferential Runway.” In other words, petitioners should not be heard to complain of the court having directed in March 1970 that runway 5-23 shall be the “preferential runway” and having further stated that EAA control tower personnel in the interest of flight safety shall direct the use of the alternate runway 12-30. The opinion of the court (108 N. J. Super, at 491), anticipated by some eight or nine months what EAA discovered and promulgated in November of 1970. The affidavits supporting the petition indicate that subsequent to the judgment of the court, NBAA and ATA made studies and met with representatives of EAA and MMU management and that thereafter the tower bulletin referred to was promulgated. This tower bulletin is nothing more than an extension of what the court said in its judgment. In petitioners’ brief the following statement is made:

Although, in the case at bar, the applicants for intervention have been made aware of the litigation for about a year, they have been doing something about it during that period. The NBAA made a technical study of the operations at MMU (Bedore Affidavit, 1(16). Thereafter the NBAA and the ATA met several times with representatives of the FAA and the Airport Management, and as a result of those meetings the FAA on October 21, 1970 promulgated Morristown Airport Traffic Control Tower Bulletin No. 70-1 effective November 9, 1970 which established a preferential runway system for MMU (Bedore Affidavit, H18). [Emphasis supplied]

The real concern of the petitioners is directed to paragraph “I” of the judgment, which reads as follows:

I. Oral argument having been heard from counsel and a proffer of proof having been made by counsel for defendants on the subject of restricting jet aircraft at Morristown Airport during certain hours and good cause being shown therefore, the Court directs that jet aircraft will be prohibited from takeoffs or landings each day between the hours of 9 :00 p.m. until 7 :00 a.m. and on Sundays, except during the hours of 1:00 p.n. until 3:00 p.m., unless an emergency exists, or the interests of flight safety require the utilization of the airport under the guidance and direction of the F.A.A. tower personnel.

Petitioners’ arguments on this score are:

The limitation on operations ordered by paragraph “I” directly restricts the aviation operations of hundreds of NBAA member corporations. Since jet business aircraft are mainly operated and owned by nationwide corporations (Exh. 1, Bedore affidavit), a limitation on operations at one terminal directly and indirectly affects aircraft operations all across the country. An aircraft may not leave California if it cannot got to MMTJ before it is closed to jet aircraft. The restriction hits especially hard on the NBAA members that are based at MMTJ. A study of the logs of three jet aircraft based at MMTJ showed that in the first five months of the restrictive order on 35 different occasions these aircraft had to land at an alternate airport in the metropolitan area, remain overnight and return to MMTJ in the morning, and on 11 occasions they had to relocate at another airport in order to perform scheduled departures (Bedore affidavit, lf20). (The affidavit fails to state how many jet take-offs and landings occurred in this same period, notwithstanding the limitation.) In addition, the restrictions on operations have curtailed the usefulness and efficiency of business jet use and have limited its key advantage — flexibility. Virtually the entire direct burden of the restriction on operations is borne by NBAA members, as all non-commercial, non-military jets in the United States are business jets (Bedore affidavit, f3).

Petitioners are 'Tig business,” operating in a nation spanned by four time zones infected with widespread local limitations as distinguished from EAA uniform regulations. The affidavit which supports the petition sets the tone of petitioners’ concern:

6. Business aircraft are tools of management which provide top executives with frequent face to face personal contacts and an increased organizational span of control. These aircraft provide flexible national transportation to busy executives and frequently make five or more business stops in a single day.
7. Business aircraft allow management to go when and where they need to keep pace with the continuing growth and geographical dispersion of successful business operations. The privacy and on-board facilities provided on most business aircraft allow conduct of business and preparation of documents while flying between intermediate points.
8. A user survey made in 1966 by Arthur D. Little, Inc., engineering consultants of Cambridge, Massachusetts, for Lockheed-Georgia, a manufacturer of business aircraft, showed that company aircraft were used mainly for executive and staff travel, because relatively few skilled managers are available to any one company to make top decisions and, in terms of responsibility and geography, their span of control must cover large areas of the organizational structure.

Petitioners urge that a jet plane which leaves California early in the morning arrives too late to be able to land at MMU. This argument presumes that the citizens who live in communities surrounding Morristown Airport are required to concern themselves with local airport regulations in California, Oregon and Washington. It may be necessary for these busy corporate executives to leave from a “free” or “unrestricted” business airport on the west coast at a very early hour, taking into account the time zones and the differential of three hours to arrive in Morristown within the permitted hours. It would not damage the efficiency of the essential executive to arise three hours earlier and take into account the time differential.

The affidavit of Bedore indicates that there are functional uses to the “privacy and on-board facilities.” The quiet of the private jet in flight and the absence of the hustle and bustle common to the scheduled airliners would permit the weary business executive to make up for the lost sleep which occurred from the early departure on his jet aircraft with private on-board facilities. There is no private business executive who is too important to use the scheduled air carriers serving 515 airports in the 48 coterminus states. No consideration is given by petitioners to the man who may be working late in Ms home in Morris County in preparation for Ms next day’s activities, or asleep, resting for the hard day’s work ahead. Disturbed by the whining howl of the landing or taking-off jet, Ms home no longer is his castle. It has been invaded and overrun by frightening and unwanted noise. He may willingly or grudgingly make such sacrifice in time of war or to satisfy the needs of government or the general travelling public. It is doubtful that he would be content to do it for the private corporation executive, who might find it a little less convenient to use the conventional piston-engine aircraft which use MMIT without the restrictions. In noting that the relative equities must be considered, this court in its opinion said:

* * * At Morristown Airport the offensive engine noises for the most part are not emitted by airplanes serving the general public, but by the jets of the few corporate executives who own or charter the aircraft which noisily ride the invisible highway as an industrial status symbol. (See: Harley Jr., TC, CCH, Dec. 29, 803[M], If 7703 [M] [1969]). If not simply a symbol it is argued that time and energy of the corporate officer and employee is saved. The importance of the speed of travel to the corporate executive must be placed on one side of the scale and balanced against the domestic tranquility to which family and the neighborhood are entitled. [108 N. J. Super, at 479]

The trial was costly in time and money, and plaintiffs were less able to afford the burden. More than 30 witnesses testified. In addition to complaining local residents both sides presented testimony of experts. Experts in accoustical engineering, architectural engineers, airport planning experts and attorneys either presently or formerly with EAA testified at the trial. Zoning and planning experts supplemented the testimony of consultants whose expertise was in noise and vibration control. The Director of Aeronautics of the State of New Jersey, who works closely with EAA, testified, as did representatives of EAA. More than 60 exhibits, most of which were of a technical nature prepared by experts, were received in evidence at the trial. Having suffered a very expensive trial, the four small municipalities and six taxpayers are now challenged by eager adversaries whose team would be represented by the following participants: NBAA with its 840 corporate members comprising the largest companies in the world; ATA with its 32 commercial aircarriers of which 13 are co-petitioners here; coming to their aid and assistance at no expense would be the representatives and experts of EAA.

It has been said that governmental agencies are in many instances engulfed and controlled by the very businesses and industries over which their guardianship in the public interest is directed. Witness the efforts of utility companies aided and abetted by the Federal Power Authority. See Scenic Hudson Preservation Conf. v. Federal Power Commission, 354 F. 2d 608 (2 Cir. 1965), cert. den. sub nom., Consolidated Edison Co. v. Scenic Hudson Preservation Conf., 384 U. S. 941, 86 S. Ct. 1462, 16 L. Ed. 2d 540 (1966).

Decimus Junius Juvenal, a Roman poet (60-140 A. D.), posed this question many years ago: “But who is to guard the guards themselves?” Today and in the context of this case the same question takes on greater relevancy. Where are the national or state protectors of the environment in the interest of all the citizens? Should not these agencies charged with obligations to provide clean water, clean air and a respectable measure of quiet and solitude be the well-equipped adversaries of their competing federal and state agencies? Substantially less litigation would result if contending executive agencies performed their respective delegated duties before a lawsuit had to be filed calling for judicial intervention. For example, in the case at bar, the National Environmental Protection Agency, representing the general public, and EAA, by conferring and establishing definitive policies might well have solved the problems — or at least made the initial adversary proceeding a more equal contest and thereby assisted the court in arriving at an equitable determination of the complex separate interests. This would apply to the many existing lawsuits, in both federal and state courts, suits which are becoming increasingly and alarmingly abundant, where the Eederal Power Authority or highway or transportation agencies find themselves engaged in unevenly matched contest of their experts against citizens who cannot afford and should not be required to expend great sums for trial in the common weal.

Perhaps the time has arrived when the giants of industry will see the wisdom of slowing the cross-country speed of their important executives and will take a close, concerned look at the little people of this country who by their purchases contribute to industry’s growth.

The inequality of the adversary proceeding as proposed by petitioners would not assist this court in its search for substantial justice.

This court concludes that it has not been shown sufficiently valid grounds for exercising its discretion and granting intervention. The application to intervene is denied. Plaintiffs’ attorney is directed to prepare and submit an order consented to as to form or settled pursuant to Rule of Court.


author: Mehler, J. S. C.

text:
    PHILIP GROSS, PLAINTIFF, v. NEW JERSEY ARMY NATIONAL GUARD, MAJOR GENERAL WILLIAM SHARP, THE CHIEF OF STAFF, NEW JERSEY ARMY NATIONAL GUARD, AND MAJOR WILLIAM COONEY, COMMANDER 2ND BATTALLION 50TH ARMOR DIVISION NEW JERSEY ARMY NATIONAL GUARD, DEFENDANTS.
    Superior Court of New Jersey Law Division
    Decided January 10, 1972.

      Mr. Donald B. Devin, for plaintiff.

      Mr. George F. Kugler, Jr., Attorney General of New Jersey, for defendants (Mr. Theodore A. Winard, Deputy Attorney General, appearing).
   Mehler, J. S. C.

(orally). This is an action heard summarily pursuant to B. 4:67-1, which authorizes the court to hear cases in a summary manner where permitted by rule or statute.

The action is one brought under the habeas corpus statute, N. J. 8. A. 2A:67-1 et seq., and more particularly § 13, to inquire into the cause of plaintiff’s detention by the New Jersey Army National Guard (National Guard) and to compel the Chief of Staff of the National Guard to order the discharge of plaintiff from the National Guard. Sections 15 and 25 authorize the Superior Court to hear the matter summarily.

Plaintiff, who is a member of the National Guard, contends that due to a medical condition which preexisted his enlistment in the National Guard, his induction or enlistment is void and his continued involuntary membership in that organization is in violation of his rights.

I find from the evidence as follows:

Plaintiff, who was born on August 2, 1945 and was therefore subject to the draft in 1965, a time when this country was and still is involved in a conflict in Southeast Asia, was ordered in August 1965 to appear before his local draft board for a preinduction physical examination. He appeared on August 13, as directed. Plaintiff has had an undescended right testicle since birth and had this condition in 1965 and continuously thereafter until the summer of 1971, when it was removed by means of a surgical procedure. The army regulations governing the standards for induction or enlistment, and more specifically A. R. 40-501, 2-14 (m) 3, which was in effect in 1965 and is still in effect, state that an undeseended testicle is a cause for rejection. Plaintiff was classified as acceptable for military service.

Prior to January 1, 1966 plaintiff endeavored to enlist in the National Guard. On August 20, 1966 he received his physical examination by a National Guard physician, whom plaintiff did not apprise of his condition. It has been stipulated that the physical examination was regular and fair. Plaintiff was found fit for military service and on August 21, 1966 was inducted into the National Guard. On the same day he enlisted in and became a member of the Reserve of the Army for service in the Army National Guard of the United States and entered into an enlistment agreement for a period of six years. Prom August 21, 1966 to the present time he has continuously been a member of the New Jersey Army National Guard and of the Army National Guard of the United States.

On February 14, 1970 plaintiff was given a periodic medical examination at Port Monmouth and was found qualified for continued retention in the National Guard. A surgical consultation concerning the right testicle was recommended by the examining physician.

In that year plaintiff was informed by an Army doctor that the fact that he had an nndescended testicle should have precluded his induction or enlistment in the National Guard.

On March 24, 1971 plaintiff was given another medical examination at Port Monmouth and again was found qualified for continued retention in the National Guard. The medical examiner found an undescended right testicle and recommended a surgical procedure known as an R Orchnectomy. Following an examination conducted by an officer in a hospital at Fort Monmouth, the doctor concluded that plaintiff was qualified for continued retention in the National Guard.

Plaintiff, having been informed in 1970 that his condition should have precluded his induction, made application in 1971 through appropriate channels for a medical discharge. His case was reviewed by the Chief of the National Guard Bureau,, he was found medically qualified for retention, and his request and subsequent requests for discharge were denied. He claims that he is deprived of his liberty, being obliged to report to an armory and various other places. He contends that his detention is illegal in that his induction or enlistment in the National Guard was prohibited by the rules and regulations governing the standards for induction or enlistment, referring specifically to A. R. 40-501, 2-12 (m) 3.

There are two threshold questions. One is whether this court has jurisdiction of a proceeding to secure the discharge of plaintiff from the Army organization or organizations of which he is a member. The second is whether the habeas corpus statute is applicable to this case. They will be considered in their inverse order.

I find that plaintiff, as a member of the National Guard, is obliged to attend drills and other National Guard activities and may not leave the State without permission. He is therefore restrained at times from freedom of action.

I find that so long as plaintiff continues to be a member of the National Guard he is subject to orders and some supervision and is obliged to attend drills and other National Guard activities. He is also subject to being called up for duty when the services of his unit are required. Under present concepts a writ of habeas corpus may issue even though the applicant is not actually under physical restraint.

Potential restraint upon one’s liberty entitles him to seek habeas corpus relief. Johnson v. Laird, 435 F. 2d 493 (9 Cir. 1970). Retention in the Army is a significant enough restraint on liberty to support habeas corpus jurisdiction. Donigan v. Laird, 308 F. Supp. 449, 451 (D. C. Md. 1969); Hammond v. Lenfest, 398 F. 2d 705, 711, 712 (2 Cir. 1969); In re Phillips Petition, 167 F. Supp. 139 (S. D. Cal. 1958); Crane v. Hedrick, 284 F. Supp. 250 (N. D. Cal. 1968).

The court concludes that habeas corpus is an appropriate remedy here.

The question of jurisdiction cannot be decided without considering other facts.

I find from the evidence as follows:

When plaintiff enlisted in 1966 he did so in two components, namely, the New Jersey Army National Guard and the Army National Guard of the United States. By statute H. J. S. A. 38A:1 — 1(d), the Army National Guard of the United States is the reserve component of the Army of the United States all of whose members are members of the Army National Guard. By his enlistment plaintiff became a reservist of the United States Army.

Under National Guard regulations, which are found in the pocket part of 32 U. S. C. A., an individual, upon appointment in the Army National Guard of a state and upon subscribing to an oath of office, has a state status and also acquires a federal status when he is federally recognized and appointed as a Reserve of the Army. 32 Z7. S. C. A. § 564.2(a).

Regulation 5.64.18, found in the aforementioned pocket part, prescribes the criteria and procedures for effecting the discharge of enlisted personnel of the Army National Guard and in specific cases from enlistment as a reservist of the Army. Bee subsection (a). Under 'subsection (c) the authority to discharge an enlisted person from the Army National Guard rests with the State. By virtue of the same subsection, the authority to discharge an enlisted man from an enlistment as a reservist of the Army rests with the Secretary of the Army and it is delegated to appropriate officers of the Army National Guard designated by the State Adjutant General. Under subsection (d) an enlisted person discharged from the Army National Guard of the State for reasons specified in that subsection, is to be concurrently discharged from his enlistment as a reservist of the Army. Under subsection (e) an enlisted person who has a remaining service obligation under the Uniform Training and Service Act will be discharged only from the State Army National Guard for reasons enumerated in that subsection. Subsection (d), which authorizes concurrent discharges, lists as a ground for such discharge physical disability caused by injuries or illness, which I find neither exist nor are claimed to exist here. Subsection (e), which deals with discharges only from the State Army National Guard, lists no reason which can possibly be pertinent to this case.

I find from the testimony that the New Jersey Chief of Staff can, under regulations, grant a concurrent discharge if the criteria of the Army National Guard of the United States are met, and can also grant a concurrent discharge if an enlisted man fails to meet the retention standards. I also find that there is no regulation either of the National Guard or of the Army National Guard of the United States which authorizes separation for an undescended testicle or for any other condition which preexisted the enlistment.

I find that this court, for the reasons now to be stated, has jurisdiction to entertain this application.

The New Jersey Army National Guard is created by state law as a part of the organized militia, N. J. 8. A. 38A:l-3, and is a component of the New Jersey Department of Defense, N. J. 8. A. 38A:3-2. Its Chief of Staff, the Adjutant General of the State, is appointed by the Governor. N. J. 8. A. 38A:3-3, 4. Only by virtue of N. J. 8. A. 38A:l-6, N. J. 8. A. 38A :3-6 (i) and N. J. 8. A. 38A :7-3, does a state official such as the Adjutant General have the power and authority to act in military matters pursuant to state and federal laws and regulations. These statutes provide as follows:

N. J. S. A. 38A:l-6:
Federal laws and regulations * * * relating to and governing the armed forces of the United States and the militia shall, insofar as the same are applicable and not inconsistent with the constitution of this State, apply to and govern the military forces of this State.
N. J. S. A. 38A :7-3:
The administration, discipline and training of the National Guard shall conform to the applicable Federal and State laws and regulations.
N. J. S. A. 38A:3-6(i) :
Under the direction of the Governor, the Chief of Staff shall: * * * exercise the powers vested in him and perform such other duties and functions as required of him by the Governor and by Federal and State laws and regulations.

Since the Adjutant General of the State is empowered by the state and federal law to discharge an enlisted man from the National Guard and from the Army Reserve for any one of specified reasons, or from the National Guard for other reasons, this court has the power to compel the Adjutant General to enter a discharge if he fails or refuses to do so when a discharge is warranted.

The remaining question therefore to be decided is whether plaintiff is entitled to a discharge. It is his position that his continued retention in the National Guard is unlawful because his enlistment was void due to his preexisting medical condition.

I find from the evidence that plaintiff did have an undescended testicle when he applied for service in the National Guard and that by virtue of A. R. 40-501, 2-14(m)3 he could have been rejected because of this condition. It does not follow, however, that plaintiff’s enlistment was void simply because he could have been rejected for a physical cause. The fact that the National Guard physician who examined plaintiff when he applied for service failed to notice plaintiff’s condition or felt that he was qualified, and that plaintiff was not rejected and was therefore enabled to become a member of the National Guard, did not render his enlistment void. The regulation makes no such determination. Nor does logic require it.

I therefore conclude that plaintiff is not entitled to a discharge because of his preexisting physical condition.

I also find from the evidence that when plaintiff was examined in 1971 and when his case was reviewed by the National Guard Bureau he was medically qualified for continued retention in the service.

I conclude that no grounds exist for ordering plaintiff’s discharge.

Accordingly judgment will be entered for defendants.


author: Gelman, J. J. & D. R. Ct.

text:
    STATE OF NEW JERSEY, PLAINTIFF, v. MICHAEL CARUS, DEFENDANT.
    Bergen County Court
    Decided January 21, 1972.

      Mr. Vincent Sharkey, Assistant Prosecutor, for plaintiff (Mr. George F. Kugler, Jr., Attorney General of New Jersey, attorney).

      Mr. David Solomon for defendant (Mr. Jacob Friedland, attorney).
   Gelman, J. J. & D. R. Ct.

(temporarily assigned). Defendant appeals pursuant to B. 3 :23 from his conviction in the Municipal Court of Rochelle Park for violation of N. J. S. A. 39:4-49.1. Prior to commencement of trial in this court defendant moved to dismiss the complaint, and the facts have been stipulated for the purpose of this motion.

On August 8, 1971 defendant was operating a motor vehicle on Route 17 in Rochelle Park. The vehicle was stopped by a police officer and, upon a search of its contents, a quantity of marihuana was found in a sneaker lying under the front seat. A summons for violation of N. J. 8. A. 39:4-49.1 was issued and, following a nontranscribed hearing in the municipal court, defendant was convicted.

N. J. 8. A. 39 :4-49.1 was enacted in 1964 and provides as follows:

No person shall operate a motor vehicle on any highway while knowingly having in his possession or in the motor vehicle any narcotic drug within the meaning of section 24:18-2 of the Revised Statutes or any amphetamine barbiturate, barbital, hypnotic or somnifacient drugs, tranquilizers or any prescription legend drug, unless obtained from, or on a valid written prescription of, a duly licensed physician, veterinarian or dentist.
A person who violates this section shall be fined not less than $50.00 and shall forthwith forfeit his right to operate a motor vehicle for a period of 2 years from the date of his conviction.

At the time the above statute was enacted, the Uniform Narcotic Drug Law (former N. J. 8. A. 24:18-1 et seq.) was in effect in New Jersey, and section 2 (former N. J. 8. A. 24:18-2) defined narcotic drugs as including “coca leaves, opium, marihuana and every substance not chemically distinguishable from them.” In 1970 the Uniform Narcotic Drug Law was repealed and in its place the Legislature substituted the Controlled Dangerous Substances Act (N. J. 8. A. 24:21-1 eit seq.; L. 1970, c. 226). Under the Controlled Dangerous Substances Act marihuana has been excluded from the definition of a narcotic drug. See N. J. 8. A. 24:21-2. However, the act contains no reference to N. J. 8. A. 39 :L-49.1, and the question is whether the new definition of narcotic drug as contained in the act is to be read into the cited section of the Motor Vehicle Act, it being apparent that marihuana does not fall within auy other of the categories of proscribed drugs mentioned in the latter.

The Controlled Dangerous Substances Act was the final expression of a wide-ranging reform in the narcotic drug laws of this State. 'Its adoption was preceded by a legislative investigation extending over a period of many years, which included numerous reports filed by the Narcotic Drug Study Commission and legislative hearings. In the years immediately prior to its enactment, numerous writings had appeared in scientific as well as other sources on the subject of marihuana and its relationship to addictive drugs. The consensus of opinion was and continues to be that marihuana in the form usually available to and used by individuals in this country is not a narcotic drug and that its effects on the mind and the nervous system are substantially different from those caused by opium and cocaine and other derivatives. See, e. g., Report of the President’s Commission on Law Enforcement and the Administration of Justice (1967); Weil, Zinberg & Nelsen, “Clinical and Psychological Effects of Marihuana in Man,” 162 SCIENCE 1234 (1968); Oursler, Marijuana the Facts the Truth, 35, 42-66, 206 (1968). It is readily apparent that the Legislature deliberately and intentionally removed marihuana from the narcotic drug classification and accorded to its use and possession a different treatment. Thus, under section 20 of the act (N. J. S. A. 24:21-20), the crime of possession of 25 grams or less of marihuana was downgraded to a disorderly person offense.

Eollowing the enactment of the Controlled Dangerous Substances Act, the Legislature amended N. J. S. A. 39 :4-5G so as to include within the reach of that section of the Motor Vehicle Act the operation of a motor vehicle while under the .influence of “hallucinogenic drugs.” L. 1971, c. 103. The amendment manifests a legislative recognition that marihuana is no longer classified as a narcotic drug and hence that an amendment was necessary to include marihuana within the reach of that section. If there was any residual intent on the part of the Legislature to continue marihuana within the definition of proscribed drugs under N. J. S. A. 39:4-49.1, certainly it would have accomplished that result when this amendment was adopted.

Eor the reasons hereinabove set forth, the motion to dismiss the complaint is granted.


author: Kole, J. C. C.

text:
    STATE OF NEW JERSEY, PLAINTIFF, v. COMFORT CAB, INC., DEFENDANT.
    Bergen County Court Law Division — Criminal
    Decided January 17, 1972.

      Mr. Adam H. Lawrence, Assistant Prosecutor, argued the cause for plaintiff (George F. Kugler, Jr., Attorney General, attorney).

      Mr. Robert S. Dicksiein for defendant.
   Kole, J. C. C.

This case involves a novel question of the relationship between the Federal Fair Labor Standards Act and the New Jersey Wage and Hour Law.

Defendant Comfort Cab, Inc. moved to dismiss three indictments against it charging violations of the New Jersey statutes relating to employees’ wages and hours, basically the New Jersey Wage and Hour Law enacted in 1966:

(1) Indictment 8 — 1033—71, charging defendant in 616 counts with failure to pay minimum and overtime rates, in violation of N. J. S. A. 34:ll-56a4 and 34:ll-56a22.

(2) Indictment 8-1031-71, charging defendant in 20 counts of failure to keep true and accurate records of hours worked by employees, in violation of N. J. S. A. 34 :ll-56a2() and 34:ll-56a22.

(3) Indictment S-1032-71, charging defendant in 47 counts of withholding and diverting wages, in violation of N. J. S. A. 34:11-4.4 and 34:11-4.10.

Defendant, a taxicab company, contends that the Eederal Government has preempted tbe field of wages and hours relating to its employees by enactment of the Fair Labor Standards Act, 29 U. S. C. A. § 201 et seq., and that, therefore, the New Jersey statutes claimed to be violated do not apply to it. Defendant claims that since it is “engaged in commerce” within the meaning of the Federal Fair Labor Standards Act, and since that act is exclusively applicable to it, it is not subject to the New Jersey statute, the New Jersey court is without jurisdiction and, therefore, the indictments should be dismissed. It also argues that even if the New Jersey, rather than federal, law applies, it is exempt under the provisions of the New Jersey statutes, and for that reason the indictments should be dismissed.

Ordinarily an indictment should not be dismissed unless its insufficiency is palpably shown. State v. McDowney, 49 N. J. 471, 474 (1967); State v. Weleck, 10 N. J. 355, 364 (1952); State v. Ferrante, 111 N. J. Super. 299, 304 (App. Div. 1970). Jurisdiction is an essential element which, if lacking, may lead to a palpably shown insufficiency, State v. McDowney, supra.

The State contends, citing Buck v. California, 343 U. S. 99, 72 S. Ct. 502, 96 L. Ed. 777 (1951), reh. den. 343 U. S. 932, 72 S. Ct. 756, 96 L. Ed. 1341 (1952), that defendant was not involved in interstate commerce and, accordingly, the Federal Fair Labor Standards Act is inapplicable.

The defendants in Buck were charged with failing to obtain permits required by a county through which their cabs operated, though passengers were neither picked up nor discharged in that county. The Supreme Court upheld the county’s permit requirement and found that the regulation was not an unreasonable burden on foreign commerce. The taxicab company operated on an axis between the United States and Mexico.

Buck concerned licensing regulations and thus majf be distinguished from the present case where the question is of inclusion or exclusion under a specific federal statute. Further, the court found that local licensing regulations on a local business such as taxicabs was not a burden on foreign commerce in the absence of federal regulation.

The question is not whether Comfort Cab is involved in interstate commerce, but rather whether it is “engaged in commerce” within the general meaning of the federal act. 29 TJ. S. C. A. § 206(a); 29 U. S. O. A. § 207(a). “Commerce” is defined in the act as “trade, commerce, transportation, transmission or communication among the several States or between any State and any place outside thereof.” 29 U. S. C. A. § 203(b) (emphasis added). Caserta v. Home Lines Agency, Inc., 172 F. Supp. 409, 413 (S. D. N. Y. 1959).

The reach of the federal act is less than the constitutional reach of the Commerce Clause. Mitchell v. H. B. Zachry Co., 362 U. S. 310, 80 S. Ct. 739, 4 L. Ed. 2d 753, 758-759 (1960). Until 1961 coverage under the act depended upon the nature of the employees’ duties, not whether the employer’s business was local or interstate. Mitchell v. H. B. Zachry Co., supra. In 1961 Congress additionally awarded coverage to “fellow employees of any employee who would have been protected by the original Act.” Pub. L. 87-30, § 2(c). This amendment, however, did not enlarge the class of employers subject to the act. Maryland v. Wirtz, 392 U. S. 183, 188, 88 S. Ct. 2017, 2020, 20 L. Ed. 2d 1020, 1026 (1968).

The Supreme Court has “recognized that the penetrating and elusive duty which this Act casts upon the courts to define in particular cases the less-than-constitutional reach of its scope, cannot be adequately discharged by talismanic or abstract tests, embodied in tags or formulas.” Mitchell v. H. B. Zachry Co., supra, 362 U. S. at 313, 80 S. Ct. at 742, 4 L. Ed. at 758. However, general guidelines have been provided :

The question whether an employee is engaged ‘in commerce’ within the meaning of the present [Federal Fair Labor Standards] Act is determined by practical considerations, not by technical conceptions * * ®. The test is whether the work is so directly and vitally related to the functioning of an instrumentality or facility of interstate commerce as to be, in practical effect, a part of it, rather than local isolated activity. [Mitchell v. C. W. Vollmer & Co., 349 U. S. 427, 429, 75 S. Ct. 860, 99 L. Ed. 1196, 1200 (1955)]

It has also been said:

The practical test to be applied is whether, without the particular service, interstate commerce would be impeded or abated. Great remoteness, however, renders the act inapplicable. (Citations omitted). [Republic Pictures Corporation v. Kappler, 151 F. 2d 543, 545 (8 Cir. 1945)]

Since, as previously discussed, under a 1961 amendment the coverage of any employee by the pre-1961 act mandates coverage for all his fellow employees, Comfort Cab would appear to be covered by the federal act if a substantial part of any of its employees’ activities relate to interstate commerce. Kirshbaum Co. v. Walling, 316 U. S. 517, 62 8. Ct. 1116, 86 L. Ed. 1638 (1941); Walling v. Jacksonville Paper Co., 317 U. S. 564, 63 S. Ct. 332, 87 L. Ed. 460 (1942). “Substantial part” has been found as low as 3.57% of an employee’s total worktime, in McComb v. W. E. Wright, 168 F. 2d 40 (6 Cir. 1948), and 5% in Wiriz v. Dunmire, 239 F. Supp. 374 (W. D. La. 1965).

Defendant contends that it is “engaged in commerce” within the meaning of the federal act, and further claims that as such it is covered by the provisions of that act regarding minimum wage and overtime. Accordingly, it contends that the like New Jersey regulations have been preempted by the federal act with regard to parties so engaged in commerce.

The United States Constitution gives Congress the exclusive power “to regulate commerce * * * among the several States, * * *.” Art. I, Sec. 8, Cl. 3. However, exercise of New Jersey’s police power, a concurrent power derived from the Tenth Amendment’s reservation to the States of powers not delegated to the Federal Government nor prohibited to the States, “will be sustained even though it may affect interstate commerce incidentally so long as it does not unduly burden it.” Moyant v. Paramus, 30 N. J. 528, 549 (1959) ; Burton v. Sills, 99 N. J. Super. 516, 526 (Law Div. 1967), aff’d 99 N. J. Super. 459 (1968), aff’d 53 N. J. 86 (1968), app. dism. 394 U. S. 812, 89 S. Ct. 1486, 22 L. Pd. 2d 748 (1969); Head v. New Mexico Board of Examiners, 374 U. S. 424, 83 S. Ct. 1759, 10 L. Ed. 2d 983, 987-988 (1963); Huron Portland Cement Co. v. Detroit, 362 U. S. 440, 80 S. Ct. 813, 4 L. Ed. 2d 852 (1960). An actual conflict between state and federal laws is governed by the “Supremacy Clause,” which dictates that “This Constitution, and the Laws of the United States which shall he made in Pursuance thereof * * * shall be the supreme Law of the Land * * Art. VI, Sec.. 2. Regulation by the State of the wages and hours of employees working in the State is obviously an exercise of its police power. See New Jersey State Hotel-Motel Ass’n v. Male, 105 N. J. Super. 174 (App. Div. 1969).

The indictments relevant herein charge offenses allegedly committed between December 31, 1966 and December 25, 1968. During a portion of this time-period both driver and nondriver employees of defendant Comfort Cab were exempt from sections of the federal act covering minimum wage and maximum hour/o ver time rates, but were covered by the like sections of the New Jersey law. Defendant claims that an exemption in the federal act preempts any such state regulation.

Preemption is governed by the intent of Congress regarding the federal act. Huron Portland Cement Co. v. Detroit, supra,, involving an alleged conflict between federal licensing of steam vessels and a local smoke abatement ordinance, held as follows:

In determining whether state regulation has been pre-empted by federal action, ‘the intent to supersede the exercise by the State of its police power as to matters not covered by the Federal legislation is not to be inferred from the mere fact that Congress has seen fit to circumscribe its regulations and to occupy a limited field. In other words, such intent is not to be implied unless the act of Congress, fairly interpreted, is in actual conflict with the law of the state.’ [362 U. S. at 443, 80 S. Ct. at 816, 4 L. Ed. 2d at 856; citations omitted]

The problem was further distilled in Florida Lime & Avocado Growers v. Paul, 373 U. S. 132, 83 S. Ct. 1210, 10 L. Ed. 2d 248 (1963), which concerned a possible federal and state agricultural standards conflict:

The principle to be derived from our decisions is .that federal regulations of a field of commerce should not be deemed preemptive of state regulatory power in the absence of persuasive reasons — either that the nature of the regulated subject matter permits no other conclusion, or that Congress has unmistakenly so ordained. [373 U. S. at 142, 83 S. Ct. at 1217, 10 L. Ed. 2d at 257]

Cf. B. R. Waldron & Sons Co., Inc. v. Milk Control Board, 131 N. J. L. 267, 272 (Sup. Ct. 1944), aff’d 131 N. J. L. 388 (E. & A. 1944); N. J. Bell Tel. Co. v. Communications Workers, etc., 5 N. J. 354, 366 (1950).

Does an exemption of coverage for a particular occupation in the federal act mean that Congress has “unmistakenly ordained” that state regulation has been preempted and the State may not act for the benefit of those exempt occupations? The Congress has offered no suggestion that such is the case. Rather, a clear intent to permit state control is manifested by § 18 of the federal act (29 U. S. C. A. § 218(a)):

No provision of this Act * * * shall excuse noncomplianee with any Federal or State law or municipal ordinance establishing a minimum wage higher than the minimum wage established under this Act, or a maximum workweek lower than the maximum workweek established under this Act * * *.

While this' statute does not specifically address itself to state coverage of federally exempt occupations, it certainly does not permit the conclusion that the Congress has “unmistakenly ordained” that an exemption in the federal act preempts state action in that area.

Accordingly, the federal act exemptions do not preempt or preclude applicability of the New Jersey statutory provisions covering such federally exempt occupations as are here involved. The New Jersey law, therefore, governs these occupations. Cf. Johnson v. Christ Hospital, 84 N. J. Super. 541, 545 (Ch. Div. 1964), aff’d 45 N. J. 108 (1965).

Congress did unmistakenly intend, however, that certain taxicab company employees be exempt from particular provisions of the federal act. A 1949 amendment to the Fair Labor Standards Act, 29 U. S. C. A. § 213(a) (12) (Oct. 26, 1949, c. 736, § 11, 63 Siat. 917), exempted from the provisions of 29 U. S. G. A. §§ 206 (minimum wage) and 207 (maximum hour/overtime), “any employee of an employer engaged in the business of operating taxicabs.” See U. S. Code & Cong. Service, 1949, at p. 2269. The latest amendment, enacted September 25, 1966, effective February 1, 1967, 29 U. S. O. A. § 213 (b) (17) (Pub. L. 89-601, §§ 203(c), 204(b), 206(b)(2), 210(b)), exempts only, “any driver employed by an employer engaged in the business of operating taxicabs,” and then solely from the maximum hour/overtime provisions of 29 U. S. C. A. § 207. See U. S. Code & Cong. & Admin. News, 1966, at p. 3016(7). Therefore, between 1949 and January 31, 1967 all taxicab company employees, including drivers, were exempt from both the minimum wage (§ 206) and maximum hour/overtime (§ 207) provisions of the federal act. Since February 1, 1967, however, all these employees (except taxicab drivers) have been covered by the federal act’s minimum wage and maximum hour/overtime regulations. Since February 1, 1967 taxicab company drivers have been exempt from only the maximum hour/overtime provision (§ 207), but have been covered by the minimum wage (§ 206) provision.

The New Jersey Wage and Hour Law, N. J. S. A. 34:11-56a, et seq., which prescribes minimum wage and maximum hour/overtime rates in N. J. S. A. 34 :11-56a4, was enacted June 17, 1966 to become effective 180 days following, i. e., December 14, 1966. The indictments here charge violations between December 31, 1966 and December 25, 1968. The New Jersey law is applicable to the offenses charged in the indictments regarding employees of Comfort Cab during a period when such employees were exempt from parallel coverage in the federal act since, as previously discussed, taxicab company employee exemptions in the federal act do not preempt state action in this occupational area. Thus, the New Jersey law governed minimum wage and maximum hour/overtime rates (N. J. S. A. 34:ll-56a4) violations regarding all employees of Comfort Cab between December 31, 1966 and January 31, 1967, since during such period these employees were exempt from the parallel provisions of the federal act, 29 U. S. C. A. § 206 (minimum wage) and 29 U. S. C. A. § 207 (maximum hours/overtime). Further, since driver employees were exempt from 29 U. 8. G. A. § 207 (maximum hours/overtime) during the entire period covered by the indictments, December 31, 1966 to December 25, 1968, the New Jersey law’s maximum hour/overtime provision (contained in N. J. 8. A. 34 :ll-56a4) was applicable to such violations concerning drivers during that entire time period.

As to violations not governed by a statutory exemption in the federal act, the New Jersey law also applied. The federal act amendments of 1966, previously discussed, ended the taxicab company employee exemptions from the minimum wage (§ 206) and the maximum hour/overtime (§ 207) provisions of the federal act, except that taxicab drivers remained exempt from only the maximum hours/ overtime provision of the federal act. Therefore, between February 1, 1967, the effective date of the amendments of 1966, and December 25, 1968, the last date of violations alleged in the indictments, all employees of Comfort Cab were covered by the minimum wage provision of both the federal act (§ 206) and the New Jersey law (N. J. S. A. 34:ll-56a4), while its nondriver employees only, were covered by the maximum hour/overtime regulations of both the federal act (§ 207) and the New Jersey law (N. J. S. A. 34 :11-56a4) during this period.

Anticipating such an apparent conflict between the federal act and similar state legislation, the Congress provided in 29 U. S. C. A. § 218(a) (heretofore referred to) for enforcing compliance with a state minimum wage higher and a state “maximum workweek” lower than that established by the federal act, i. e., the statute specifically prohibits preemption, by the federal act, of any state minimum wage or maximum hour/overtime (“maximum workweek”) provision more favorable to the employee than that prescribed by the federal act.

During this period, February 1, 1967 to December 25, 1968, the New Jersey law (N. J. S. A. 34:ll-56a4) established a higher minimum wage applicable to defendant’s employees than that set by the parallel regulation in the federal act (29 U. S. C. A. § 206(b)). Thus, pursuant to 29 U. S. C. A. § 218(a) the higher minimum wage established by the New Jersey statute is applicable and this court has jurisdiction over violations thereof. The higher New Jersey minimum wage is illustrated by a comparison of the minimum wage provisions of the federal and New Jersey statutes applicable to employees of defendant during this period. (See Appendix 1).

During this period, February 1, 1967 to December 25, 1968, the maximum hour/overtime provision of the New Jersey law (N. J. S. A. 34:ll-56a4) also is more favorable to nondriver employees of defendant than that set by the federal act (29 U. S. C. A. § 207(a) (2)). (See Appendix 2).

The federal act, 29 U. S. C. A. § 218(a), mandates compliance with a state maximum workweek requirement lower than that set by the federal act. Though “workweek” is not defined in the federal act, it is clearly the intent of the Congress that a lower state maximum hour regulation, creating an overtime arrangement more favorable to the employee than that contained in § 207 of the federal act, should prevail. Such an interpretation is dictated by the plain meaning of the statutory language. “Maximum workweek” does not in fact limit the number of hours an employee may work. Missel v. Overnight Motor Transp. Co., 126 F. 2d 98, 104 (4 Cir. 1942), aff’d 316 U. S. 572, 62 S. Ct. 1216, 86 L. Ed. 1682 reh. den. 317 U. S. 706, 63 S. Ct. 76, 87 L. Ed. 563. It must refer to that number of excess hours worked for which an overtime rate must be paid. This conclusion is further evidenced by the utilization of the term “workweek” in 29 U. S. C. A. § 207, where it is used in reference to the number of hours worked in excess of which the overtime rate must be paid. See, e. g., 29 U. S. C. A. § 207 (a) (2) (A). The term “maximum workweek” in 29 U. S. C. A. § 218(a) is thus synonymous with maximum hour/overtime. Accordingly, the requirement of 29 U. S. C. A. § 218(a) that a lower state maximum workweek be enforced mandates the enforcement of a state maximum hours/overtime provision more favorable to the employee than that set by the federal act. Since, as indicated, this State’s maximum hour/ overtime provision (N. J. S. A. 34:ll-56a4) does so favor employees, that statute is applicable to defendant’s non-driver employees for the period Eebruary 1, 1967 to December 25, 1968, and the court has jurisdiction over violations thereof.

Thus, whether the employees of defendant wore exempt under the federal act or were covered thereby, for the foregoing reasons I hold that during the entire period covered by the indictments, December 31, 1966 to December 25, 1968, the minimum wage and maximum hour/overtime provisions of the New Jersey Wage and Hour Law contained in N. J. 8. A. 34:ll-56a4 were applicable to all of defendant’s employees. Accordingly, the court has jurisdiction over the indictments charging violations thereof.

Defendant further contends that even if the New Jersey Wage and Hour Law is generally applicable in the present situation, it is exempt from the “overtime” provisions, since it falls within the exception which states that “The provisions of this section [N. J. S. A. 34:ll-56a4] for the payment to an employee of not less than times such employee’s regular hourly rate for each hour of working time in excess of 40 hours * * * in any week shall not apply to * * * an employee of a common carrier of passengers by motor bus * * Taxicabs, it claims, are such common carriers of passengers by motor bus.

Defendant cites uses of “omnibus” and “autobirs” in other New Jersey statutes in support of his contention. However, N. J. 8. A. 39 :1 — 1, defining “omnibus” as including “* * * all motor vehicles used for the transportation of passengers for hire, except school buses * * *” pertains exclusively to the Motor Vehicle and Traffic Act; and N. J. 8. A. 48:4r-l, subd. a, excepting taxicabs from the meaning of “autobus,” pertains to a particular chapter of the Public Utilities Law. Neither statute, therefore, sheds any light on the meaning of “motor bus” contained in the State Wage and Hour Law, an enactment with entirely different purposes.

Both the New Jersey Wage and Hour Law and the Federal Fair Standards Labor Act are humanitarian and remedial legislation. N. J. S. A. 34:ll-56a. Tennessee C. I. & R. Co. v. Muscoda Local 123, 321 U. S. 590, 64 S. Ct. 698, 88 L. Ed. 949, 956 (1943). The United States Supreme Court, in Phillips v. Wailing, 324 U. S. 490, 493, 65 S. Ct. 807, 808, 89 L. Ed. 1095, 1098-1099 (1945), which concerned the Federal Fair Labor Standards Act, stated that “Any exemption from such humanitarian and remedial legislation must * * * be narrowly construed, giving due regard to the plain meaning of statutory language and the intent of Congress.”

Moreover, there is no reason for giving the term “motor bus” in the foregoing exemption any meaning other than ordinarily given to the term. “Motor bus” normally does not include a taxicab.

The Random House Dictionary defines “motor bus” as a “passenger bus powered by a motor;” “bus” as “a large motor vehicle with a long body equipped with seats or benches for passengers, usually operated as part of a scheduled line;” and “taxicab” as a public passenger vehicle, esp. an automobile, usually fitted with a taximeter.”

Thus, the statutory exemption for a motor bus, which is to be strictly and narrowly construed as well as defined by its ordinary and plain meaning, does not include “taxicabs.” In view of the foregoing, the motion to dismiss indictment S-1033-71 is denied.

In addition to violations of N. J. 8. A. 34:ll-56a4 (“Minimum rate; overtime rate”) and its applicable penalty provision, N. J. 8. A. 34:11 — 56a22 (Indictment S-1033 — 71), defendant has been indicted for violations of N. J. 8. A. 34:ll-56a20 (“Record by employer of hours worked and wages”) and its penalty provision N. J. 8. A. 34:ll-56a22 (Indictment S-1031-71) and N. J. 8. A. 34:11-4.4 (“Witholding or diverting wages”), and its penalty provision, N. J. 8. A. 34:11-4.10 (Indictment S-1032-71).

The motions to dismiss these indictments are likewise denied. Each covers statutory provisions that are intimately connected with the minimum and overtime rate provisions of Indictment S-1033-71, which, for the reasons heretofore given, cover defendant’s employees and over which this court has jurisdiction.

APPENDIX 1

N. J. 8. A. 34:ll-56a4 reads, in relevant part, as follows:

Ererjr employer shall (a) on and after the expiration of ISO days following the day of enactment of this act pay to each of his employees wages at a rate of not less than $1.25 per hour, and (b) on and after January 1, 1968 at a rate of not less than $1.40 per hour.

The parallel provision of the Fair Labor Standards Act applicable to employees of Comfort Cab, 29 U. S. O. A. § 206 (b), is as follows:

(b) Every employer shall pay to each of his employees * * * who in any workweek is engaged in commerce or in the production of goods for commerce, or is employed in an enterprise engaged in commerce or in the production of goods for commerce, and who in such workweek is brought within the purview of this section by the amendments made to this chapter by the Fair Labor Standards Amendments of 1966, wages at the following rates:
(1) not less than $1 an hour during the first year from the effective date of such amendments.
(2) not less than $1.15 an hour during the second year from such date.

Eollo-wing is a collation of the minimum wages set by the New Jersey Wage and Hour Law and the Federal Fair Labor Standards Act during the period both were applicable to all employees of defendant Comfort Cab, between February 1, 1967 and December 25, 1968.

1. February 1, 1967 December SI, 1967 State — $1.25 an hour

The New Jersey Wage and Hour Law, enacted June 17, 1966 and effective 180 days following, December 18, 1966, set the minimum wage for all employees covered by the law at $1.25 an hour from the effective date of the law until December 31, 1967. N. J. S. A. 34:ll-56a4.

Federal — $1.00 an hour

Prior to February 1, 1967 all employees of taxicab companies were exempt from the minimum wage provisions of the federal act. February 1, 1967 is the effective date of the 1966 amendments which prescribed the foregoing minimum wage for those workers, such as employees of taxicab companies, brought under the provisions of § 206 by the amendments of 1966. This rate is applicable until January 31, 1968. 29 U. S. G. A. § 206(b) (1).

2. January 1, 1968 January SI, 1968.

State — $1.40 an hour

The aforementioned New Jersey Wage and Hour Law fixes the minimum wage at this amount between January 1, 1968 and December 31, 1968. N. J. S. A. 34:ll-56a4.

Federal — $1.00 an hour.

As in paragraph 1 above.

3. February 1, 1968 December 25, 1968.

State —• $1.40 an hour.

As in paragraph 2 above.

Federal — $1.15 an hour

29 U. S. G. A. § 206(b) (2) provides for such a minimum wage applicable February 1, 1968 to January 31, 1969.

Thus, the New Jersey minimum wage is higher than the minimum wage applicable to all the employees of Comfort Cab set by the Fair Labor Standards Act during the period February 1, 1967 to December 25, 1968.' 29 U. S. G. A. § 218(a) requires that the higher minimum wage applies. Accordingly, during this period the New Jersey law as to minimum wage applies to all employees of Comfort Cab.

APPENDIX 2

The relevant section of the federal act, 29 U. S. G. A. 207(a) (2), is as follows:

(2) No employer shall employ any of his employees * * who *■ * * is brought within the purview of this subsection by the amendments made to this Act by the Fair Labor Standards Amendments of 1986 —
(A) for a workweek longer than forty-four hours during the first year from the effective date of the Fair Labor Standards Amendments of 1966,
(B) for a workweek longer than forty-two hours during the second year from such date * * *
unless such employee receives compensation for his employment in excess of the hours above specified at a rate of not less than one and one-half times the regular rate at which he is employed.

The New Jersey overtime/maximum hour regulation, N. <7. S. A. 34:ll-56a4, is as follows:

Every employer shall * * * pay to each of his employees 5:1 * * [the applicable minimum rate] K « * for 40 hours of working time in any week and 1 and 1/2 times such employee’s regular hourly wage for each hour of working time in excess of 40 hours in any week * * *

A comparison of the two provisions illustrates that New Jersey enforced a lower “maximum workweek” between February 1, 1967, the effective date of the federal statute amendments of 1966, and December 25, 1968, the last date of offenses charged in the indictments. As a result, pursuant to 29 U. S. G. A. § 218(a), the New Jersey maximum hour/overtime law is applicable to nondriver employees of defendant Comfort Cab, during this period.

      Enacted L. 1965, c. 173 §§ 4 and 10.