author: Gaynor, J. C. C.,

text:
    WILKINSON & SON, INC., A NEW JERSEY CORPORATION AND GULF ATLANTIC TILE & TERRAZZO CORP., A DELAWARE CORPORATION, PLAINTIFF, v. PROVIDENCE WASHINGTON INSURANCE COMPANY, A RHODE ISLAND CORPORATION, DEFENDANT.
    Superior Court of New Jersey Law Division
    Decided June 19, 1973.

      Mr. Lee A. Trucker for plaintiff (Messrs. Norris, McLaughlin, Trucker & Marcus, attorneys).

      Mr. Edward M. Gurry for defendant (Messrs. Gurry and Conlan, attorneys).
   Gaynor, J. C. C.,

Temporarily Assigned. This is a motion for summary judgment by plaintiff Wilkinson & Son, Inc. in its action for a declaratory judgment determining its rights under a certain contractor’s liability policy issued to it by defendant company.

The facts giving rise to this proceeding are not complicated and have been stipulated by the parties as follows :

1. Plaintiff Wilkinson & Son, Inc. is a contractor and in 1966 was performing certain work as a subcontractor in connection with the construction of a luxury high-rise apartment building.

2. In the course of performing its work on said apartment building plaintiff was required to remove traces of tile in 34 of the apartments in said building.

3. ¿In employee of plaintiff, while removing the traces of tile in the 34 apartments, damaged the carpeting in each of the apartments by tracking on the carpeting, or depositing on the carpeting when placing his cleaning pail down, some of the cleaning material which contained an acidic or alkaline substance.

4. The work by plaintiff’s employee, during wdiich time the damage to the carpeting took place, was performed over a period of one or possibly two working days.

5. At the time of the incident defendant insured plaintiff under a general liability policy for property damage caused by the acts of plaintiff or its agents.

6. The relevant provisions of said policy are as follows:

SCHEDULE AMOUNT AND BASIS OE DEDUCTIBLE COVERAGE
$ xxxx per claim
Bodily Injury Liability
$ xxxx per occurrence
$ 250 per claim
Property Damage Liability
$ xxxx per occurrence
APPLICATION OE ENDORSEMENT (Enter here any limitations on the application of this endorsement. If no limitation is entered, the deductibles apply to all loss however caused:
It is agreed that:
JL. The company’s obligation under the Bodily Injury Liability and property Damage Liability Coverages to pay damages on behalf of the insured applies only to the amount of damages in excess of any deductible amounts stated in the schedule above as applicable to such coverages.
2. The deductible amounts stated in the schedule apply as follows:
(a) PER CLAIM BASIS — If the deductible is on a “per claim” basis, the deductible amount applies under the Bodily Injury Liability or Property Damage Liability Coverage, respectively, to all damages because of bodily injury sustained by one person, or to all property damage sustained by one person or organization, as the result of any one occurrence.'
(b) PER OCCURRENCE BASIS — If the deductible is on a “per occurrence” basis, the deductible amount applies under the Bodily Injury Liability or Property Damage Liability Coverage, respectively, to all damages because of all bodily injury or property damage as the result of any one occurrence.
3. The -terms of the policy, including those with respect to (a) the company’s rights and duties with respect to the defense of suits and (b),the insured’s duties in the event of an occurrence apply irrespective of the application of the deductible amount.
4. The company may pay any part or all of the deductible amount to effect settlement of any claim or suit and, upon notification of the action taken, the named insured shall promptly reimburse the company for such part of the deductible amount as has been paid by the company.

The question before the court on this motion is whether the entire damage to the carpeting in all the apartments caused by plaintiff’s employee constituted “one occurrence” or whether the damage to the carpeting in each of the 34 aparimeuts constituted “'one occurrence,” within the meaning of the above-quoted policy provisions. Plaintiff contends that the entire damage to the carpeting was one occurrence, and accordingly, under the terms of the policy, defendant is responsible for the total amount of the damage in excess of $250, the deductible amount. Defendant, on the other hand, claims that its liability under the policy is the amount of the damage in excess of the sum of 34 times $250, on the ground that the carpet damage resulted from 34 separate occurrences and the deductible amount is applicable to each occurrence. In other words, defendant contends that the damage in each of the 34 apartments arose from and constituted a separate occurrence, with the deductible amount applicable to each of the 34 occurrences. Defendant also asserts that there were 34 separate claims made, inasmuch as the claim submitted for payment in accord with the policy itemized the amount of the damages to the carpeting in each of the 34 apartments. The question posed in this proceeding is a novel one in our State.

A definition of the term “one occurrence” is not included in the policy which was issued by defendant. In the absence of such definition the term must be given its plain, ordinary and popular meaning, and must be interpreted as understood by the average insured when purchasing the policy. See Cooper v. Government Employees Ins. Co., 51 N. J. 86 (1968) ; Edgewater National Bank v. Safeguard Ins. Co., 81 N. J. Super. 383 (App. Div. 1963); Arthur A. Johnson Corp. v. Indemnity Ins. Co., 6 A. D. 2d 97, 175 N. Y. S. 2d 414 (1958), and Elston-Richards Storage Co. v. Indemnity Co. of North America, 194 F. Supp. 673 (W. D. Mich. 1960). In the event of ambiguity or doubt as to the meaning of language used in an insurance policy, such language is to be resolved in favor of the insured. See Rotwein v. General Ac cident Group & Cas. Co., 103 N. J. Super. 406 (Law Div. 1968); American Policyholders Ins. Co. i). Portale, 88 N. J. Super. 429 (App. Div. 1965), and Elston-Richards Co. v. Indemnity Ins. Co. of North America, supra.

A succinct statement of these accepted rules of construction, as applied in a case involving a policy provision similar to the one involved in the present case, is set forth in Arthur A. Johnson v. Indemnity Ins. Co., supra, as follows:

In seeking to ascertain the scope to be given words or phrases not explicitly defined in an insurance policy, we usually ascribe to them the ordinary and popular meaning, importing the construction that' would be given them by the average assured when he purchased the policy (Abrams v. Great American Insurance Co., 269 N. Y. 90, 199 N. E. 15; Johnson v. Travelers' Insurance Co., 269 N. Y. 401, 408, 199 N. E. 637, 640.) When a substantial uniformity of opinion on a question of interpretation may be expected, resort to such popular standards is quite appropriate. However, when as in this case, the popular concept cannot be determined with comfortable assurance, other or at least supporting guides to construction must be explored to resolve the question.
When uncertainty and doubt arise from policy language susceptible of more than one meaning, we may adopt the oftquoted but seldom decisive formula of resolving all ambiguity against the insurer (Hartol Products Corp. v. Prudential Insurance Co. of America, 290 N. Y. 44, 47 N. E. 2d 687). However, reliance on this standard makeweight does not furnish a ready solution to the controversy, since the diiEculties stem not so much from doubt as to the meaning of policy language as from uncertainty as to the manner in which the contracting parties intended such language to be applied to an unusual factual situation.
* »S* #
* * * An accident, according to generally accepted definitions, is a sudden, fortuitous mischance, unexpected, out of the ordinary, and injurious in impact (Lewis v. Ocean Accident and Guarantee Corp., Limited, of London, England, 224 N. Y. 18, 21, 120 N. E. 56, 7 A. L. R. 1129; Woodruff v. R. H. Howes Const. Co., 228 N. Y. 276, 278, 127 N. E. 270; Meyer v. New York Life Ins. Co., 249 App. Div. 243, 245, 291 N. Y. S. 912, 914; Berkowitz v. New York Life Ins. Co. 256 App. Div. 324, 10 N. Y. S. 2d 106; 1 C. J. S. Accident, p. 427). There is no doubt that there was an accident in this case; the question is whether there was more than one.

The question of what constitutes a single occurrence within the meaning of a liability policy limiting the insurer’s liability to a specified amount or to the excess over a specified amount has been presented for judicial determination in a variety of factual situations. In these decided cases the courts have considered, without any indication of distinction, the various terms, such as “one or each occurrence,” “one or each accident,” “any one occurrence.” “claims arising from one accident,” used to express the singleness of the event insured against. Although it has been suggested that a construction of a “one accident or one occurrence” clause in a liability policy depends upon the court’s philosophical approach as to whether such language refers to the cause or to the result of the event insured against, we are of the opinion that the instant proceeding can be determined without selecting either of such approaches to the exclusion of the other. See 55 A. L. R. 2d 1300.

The eases relied upon by both parties are not factually analogous to the present case. The defendant relies heavily upon Elston-Richards Storage Co. v. Indemnity Co. of North America, supra, and Arthur A. Johnson Corp. v. Indemnity Ins. Co., supra. In Elston-Richards several thousand appliances were damaged over a period of about nine months as the result of the moving of each of the appliances with a defective motorized lift, and the court there determined that the damages were not the result of one event or occurrence but rather there were as many separate accidents as items damaged. The court relied upon the fact that “the damaged appliances were not all damaged at one time or on one day, but were damaged from day to day and from time to time as they were handled by the plaintiff.”

In Johnson the court found that there were two separate accidents where it appeared the temporary retaining walls for two adjacent buildings, which had been installed by the insured in the course of performing work on a subway, collapsed almost simultaneously because of pressures caused by sudden flooding. The court reasoned that the acts of thd assured resulting in the damage to the two buildings were separate and divisible events, i. e., negligent construction of two separate structures at two separate locations giving rise to separate liabilities.

The parties also cite Truck Ins. Exchange v. Rhode, 49 Wash. 2d 465, 303 P. 2d 659 (1956) and Barrett v. Iowa National Mut. Ins. Co., 264 F. 2d 224 (9 Cir. 1959). In both of these cases there was one negligent act causing damage or injury to several persons — a fire in a building damaging property of each of the tenants and the collision of an automobile with three motorcycles. Similar events were the subject of St. Paul Mercury v. Rutland, 225 F. 2d 689 (7 Cir. 1955), and Denham v. LaSalle Madison Hotel, 168 F. 2d 576 (9th Cir. 1948). In each of these cases the court concluded that there was a single causative act, despite the multiple damage, for which the insurer was liable. This rule has been adopted in our State in a ease involving a single negligent act. Bacon v. Miller. 113 N. J. Super. 271 (App. Div. 1971).

Ward Trucking Corp. v. Philadelphia National Ins. Co., 4 N. J. Super. 434 (App. Div. 1949), also cited by defendant, is not apposite inasmuch as that case involved the construction of a policy limiting the aggregate amount of the claims presented, and no determination was made as to an allocation between the various parties who had sustained damages resulting from the accident.

A consideration of the - deductible provisions of the subject policy in the context of the event resulting in damage to the carpeting in the 34 apartments leads us to the conclusion that the property damage was the result of one occurrence. The acts imposing liability upon plaintiff weré committed by one of its employees in the performance of a single and continuous operation completed within the course of one, or two, working days. The fact that items of property in 34 separate apartments were damaged by the employee during his performing the work does not transform this cleaning operation into' '34 separate and divisible occurrences to which the deductible" amount would be - applicable. It is our opinion that the ordinary and popular meaning which would be given to the term “one occurrence” by idle average insured upon purchasing the policy, with reference to the incident giving rise to the present controversy, is that the entire event constituted a single occurrence for which there would be recovery subject to the deductible amount of $250. If it is considered that there is uncertainty as to the manner in which the parties intended such language to be applied to the present factual situation, then such uncertainty must be resolved against defendant.

Our conclusion is supported by the holdings in Haerens v. Commercial Cas. Ins. Co., 130 Cal. App. 2d Supp. 892, 279 P. 2d 211 (App. Ct. 1955), and Weissblum v. Glen Falls Ins. Co., 31 Misc. 2d 132, 219 N. Y. S. 2d 711 (City Ct. 1961), Rev'd on other grounds 40 Misc. 2d 964, 244 N. Y. S. 2d 689 (Sup. Ct. 1963), which involved factual situations analogous to the instant case. In Haerens an employee oí a painting contractor negligently damaged a number of window panes in a building while sanding the metal strips separating the panes of glass. Defendant insurance company disclaimed liability for the damage on the ground that the damage to each pane gave rise to a separate claim and such damage was less than the deductible provision in the liability policy insuring the contractor. In holding that the company was responsible under the policy, the court stated:

Reverting to tlie $50 deductible provision, we find the word “claim’.’ as there used neither certain in itself nor made certain by any provision of the policy. It is not unreasonable to -say that the claim made upon the plaintiff! by the contractor, to whom he was responsible, was for $425, the cost of replacing all the panes ruined by plaintiff’s employee. Undoubtedly the defendant was responsible for the drafting of the policy that it issued. The ambiguity arising from the use of the word “claim” must therefore be construed against it. Coit v. Jefferson Standard Life Ins. Co., 1946, 28 Cal. 2d 1, 3-4, 168 P. 2d 168, 165, 168 A. L. R. 673. Had the defendant desired to shift to the assured the liability for each $50 item that goes to make up a claim, it should have chosen terms that made that meaning clear.

Similarly, in Weissblum, plaintiff sought recovery from defendant insurance company under a liability policy for damage to 189 glass lights which had been broken during work performed by plaintiff in repairing windows and trim at Hunter College. Liability was denied on the ground that the damage to each glass light was a separate accident and the amount of such damage was less than the deductible amount provided in the policy. In determining that the damage to all the glass lights was the result of “one accident” the court stated:

The Court should look for such a construction as would form a harmonious plan for insurance of the nature contemplated by the parties (Guarisco v. Massachusetts Bonding & Insurance Co., 167 Misc. 875, 4 N. Y. S. 2d 788; 258 App. Div. 889, 16 N. Y. S. 2d 208).
The word “accident” has been the subject of much judicial interpretation and was best defined in the case of Paul v. Travelers Insurance Co., 112 N. Y. 472, 20 N. E. 347, 349, 3 L. R. A. 443, as “the happening of an event without the aid and the design of the person, and which is unforeseen”. In the more recent ease of Arthur
A. Johnson Corp. v. Indemnity Insurance Company of North America, 7 N. Y. 2d 222, 196 N. Y. S. 2d 678, it was held that the word “accident” is to be construed in the same way that the ordinary man on the street would construe it when purchasing and paying for insurance. While no authority has been called to our attention in this state in which the particular question involved in this lawsuit has been determined, the meaning of the words “each accident” as related to this type of policy of insurance was recently interpreted in the California decision of Haerens v. Commercial Casualty Ins. Co., 130 Cal. App. 2d Supp. 892, 279 P. 2d 211. There, on almost identical facts, the Court supported the view that damage to separate panes of glass in the course of work performed by a subcontractor engaged in a painting operation, did not place each damaged pane in the category of a “separate accident”. The only other case of similar purport that has been brought to our attention by the briefs of learned counsel is Elston-Richards Storage Co. v. Indemnity Insurance Co., D. C., 194 F. Supp. 673, 674, affirmed 6 Cir., 291 F. 2d 627. There, however, the Court, in construing the words of exception “arising from any one event or occurrence” found as a fact that over a period of nine months merchandise placed on a special truck had been “damaged from day to day and from time to time” thus eliminating the possibility that ‘one event’ had caused the injury.
* * *
* * * It is my opinion that the parties intended to embrace within the scope of this policy property damage such as is described in the eomplaint, and that the damaged lights were not created by 189 accidents as contended by the defendant so as to bring this claim within the exelusatory provisions of the policy.

We therefore conclude that, under the terms of the insurance policy issued by defendant to plaintiff, defendant is liable for the value of the damage to the carpeting in excess of the deductible amount of $250.

Inasmuch as there is no genuine issue as to any material fact involved, plaintiff is entitled to a judgment as a matter of law. The motion for summary judgment is granted.


source: Caselaw Access Project

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

license: Public Domain

text:
    STATE OF NEW JERSEY, PLAINTIFF, v. ANN HAREN, THERESA MARANO AND MILDRED DONATO, DEFENDANTS.
    Superior Court of New Jersey Law Division
    Decided June 26, 1973.

      Mr. Alfred J. Luciani, Deputy Attorney General, for plaintiff (Mr. George F. Kugler, Jr., Attorney General, attorney).

      Mr. Anthony D. Rinaldo, Jr. for defendant Mildred Donato (Messrs. Rinaldo and Rinaldo, attorneys).

      Mr. Leonard Meyer son for defendants Ann Haren and Theresa Marano (Messrs. Miller, Hochman, Meyerson and Miller, attorneys).
   Larner, A. J. S. C.

Defendants were indicted on October 23, 1969 for using instruments on a pregnant woman' to commit an abortion, in violation of N. J. 8. A. 2A :87 — 1, and for conspiracy to commit that offense. They now move to dismiss the indictment on the ground that the New Jersey abortion statute is unconstitutional and no longer viable in light of the recent opinions of the United States Supreme Court in Roe v. Wade, 410 U. S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973), and Doe v. Bolton, 410 U. S. 179, 93 S. Ct. 739, 35 L. Ed. 2d 201 (1973).

In Roe plaintiff was a pregnant single woman who sought a declaratory judgment that the Texas criminal abortion statute was unconstitutional and that an injunction issue restraining its enforcement. After finding that she had standing to bring the action the majority of the court concluded that the Texas statute violated plaintiff’s right of privacy, whether such right is encompassed within the concept of the Fourteenth Amendment restricting state action and fostering personal liberty, or within the concept of the Ninth Amendment’s reservation of rights to the people. This conclusion, however, was qualified by the determination that the state had a correlative interest in regulation of that right.

As a consequence, the court established certain limits or guidelines within which a state may validly regulate abortions because of its “important and legitimate interest in preserving and protecting the health of the pregnant woman.” In its holding in Roe, the Supreme Court determined that the Texas statute, which excepts from criminality only a lifesaving procedure on behalf of the mother, was unconstitutional.

Justice Blackmun’s synthesis of the court’s holding is significant:

This holding, we feel, is consistent with the relative weights of the respective interests involved, with the lessons and example of medical and legal history, with the lenity of the common law, and with the demands of the profound problems of the present day. The decision leaves the State free to place increasing restrictions on abortion as the period of pregnancy lengthens, so long as those restrictions are tailored to the recognized state interests. The decision vindicates the right of the physician to administer medical treatment according to his professional judgment up to the points where important state interests provide compelling justifications for intervention. Up to those points the abortion decision in all its aspects is inherently, and primarily, a medical decision, and basic responsibility for it must rest with the physician. If an individual practitioner abuses the privilege of exercising proper medical judgment, the usual remedies, judicial and intra-professional, are available.
Our conclusion that Art. 1196 is unconstitutional means, of course, that the Texas abortion statutes, as a unit, must fall. The exception of Art. 1196 cannot be stricken separately, for then the State is left with a statute proscribing all abortion procedures no matter how medically urgent the ease, [at 733 of 93 S. Ct.]

In. Doe, supra, the Supreme Court set aside certain provisions and restrictions of a modern Georgia abortion statute, finding that some of the requirements therein were unconstitutional as being beyond the scope of legitimate state regulation.

Before entering into a discussion of the impact of the foregoing Supreme Court decisions on the New Jersey statute, it is important to note that all three defendants herein are laymen, having no right or license to practice medicine. Hence, the' question presented to' the court is whether the Roe and Doe decisions render our criminal abortion statute unconstitutional and no longer 'Viable as applied to laymen indicted thereunder. •

The answer to this question. has been furnished by the United States Supreme Court in subsequent litigation in Chemey v. Indiana, 410 U. S. 991,- 93 S. Ct. 1516, 36 L. Ed. 2d 189 (1973). In that case the Supreme Court of Indiana had affirmed a conviction of the defendant under its criminal abortion statute, rejecting the contention that the statute was unconstitutional because it deprived a woman of her right of privacy denied equal protection to the poor, and was unconstitutionally vague because of the exception “unless such miscarriage is necessary to preserve her life.” Cheaney v. State, 285 N. E. 2d 265 (Ind. Sup. Ct. 1972). This decision was rendered prior to the determination of Roe and Doe.

The defendant then applied for certiorari to the United States Supreme Court, which petition came up for consi deration after the decisions in Roe and Doe. The state’s brief in opposition to the petition raised the question of the applicability of Roe and Doe because of lack of standing of petitioner as a non-physician. As a consequence the court had presented to it on the petition for certiorari the issue whether Roe was intended to nullify the effect of a state criminal abortion statute at the behest of a person who was neither a physician nor a pregnant woman. Although petitioner was a convicted defendant in a prosecution under an abortion statute similar to that which existed in Texas (and similar to that in New Jersey), the majority of the Supreme Court denied certiorari in a cryptic opinion reading:

Cheaney v. Indiana, 410 U. S. 991, 98 S. Ct. 1516, 36 L. Ed. 2d 189 Petition for writ of certiorari to the Supreme Court of Indiana denied for want of standing of petitioner. Doremus v. Board of Education of Borough of Hawthorne, et al. 342 U. S. 429, 72 S. Ct. 394, 96 L. Ed. 475.

Justice Douglas concurred in the denial of certiorari on broader grounds by noting:

Mr. Justice Douglas would deny certiorari on the grounds that petitioner, who was convicted of performing an abortion, is not a doctor and that the decisions of this Court in Roe v. Wade, 410 U. S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147, and Doe v. Bolton, 410 U. S. 179, 93 S. Ct. 739, 35 L. Ed. 2d 201 were confined to the condition: inter alia, that the abortion, if performed, be based on an appropriately safeguarded medical judgment.

Whether we accept the rationale of the majority or that of Justice Douglas, it is manifest that the Supreme Court never intended that Roe be applied so as to compel the voiding of a criminal abortion statute or the termination of criminal proceedings thereunder where the moving party is not a licensed physician. See the following cases decided before Cheaney: May v. State, 492 S. W. 2d 888 (Ark. Sup. Ct. 1973); cf. State v. Hultgren, 204 N. W. 2d 197 (Minn. Sup. Ct. 1973); People v. Prey, 294 N. P. 2d 257 (Ill. Sup. Ct. 1973).

Based upon the foregoing treatment of the Cheaney application for certiorari by the United States Supreme Court, this court must reach the conclusion that defendants do not have the standing to attack the constitutionality of the New Jersey criminal abortion statute, nor, as a corollary, the prosecution thereunder. The decision in Roe does not constitute a sweeping annihilation of every criminal abortion statute which fails to qualify under the regulation standards set forth in that opinion, without regard to the position of the individual involved in the violation of that statute.

The contention of defendants th'at the statute must fall as a total unit because it does not make a distinction between laymen and physicians is therefore untenable. The statute is and can still remain as a viable basis for a criminal charge where it is sought to be applied to the acts of a layman unsupervised by a physician. Under such circumstances the acts are “without lawful justification.”

Defendants further attack the constitutionality of the statute on the ground of vagueness, contending that the statutory phrase “without lawful justification” is ambiguous and overly broad, and therefore prevents one from knowing when an abortion would be justified. In State v. Moretti, 52 N. J. 182, 192 (1968), our Supreme Court dealt with this very problem and held that “a defendant whose conduct was such that he clearly could tell that it was prohibited will not bé heard to s’ay that the statute is overly broad and that another, in some hypothetical case, could be misled.” See Gleitman v. Cosgrove, 49 N. J. 22 (1967).

As further observed by the United States Supreme Court in the context of a federal criminal statute

In determining the sufficiency of the notice a statute must of necessity be examined in the light of the conduct with which a defendant is charged. [United States v. National Dairy Products Corp., 372 U. S. 29, 32, 83 S. Ct. 594, 598, 9 L. Ed. 2d 561 (1963)].

In the context of the foregoing criterion it is manifestly clear that any layman who commits or attempts to commit an abortion on a woman knows full well that his or her acts are not lawfully justified, whether pre-Doe or post Doe-law is applied.

In Y. W. C. A. of Princeton, N. J. v. Kugler, 342 F. Supp. 1048 (D. N. J. 1972), vacated and remanded 475 F. 2d 1398 (3 Cir. 1973), a civil case instituted by physicians, a three-judge Federal District Court for the District of New Jersey decided that the statutory language “without lawful justification” was unconstitutionally vague as failing to provide adequate warning of the sphere of activity prohibited by the statute. However, after the decisions in Doe and Doe, supra, the United States Court of Appeals for the Third Circuit vacated the judgment of the District Court and remanded the case for consideration in the light of the Supreme Court’s opinions.

The District Court holding thus has no precedential value either as binding or persuasive on the determination by this court.

In view of the foregoing, the motion to dismiss the indictment is denied.


text:
    IN THE MATTER OF JOHN J. LEMKEN.
    Superior Court of New Jersey Law Division
    Decided June 22, 1973.

      Mr. Ronald M. Slurtz for John J. Lemken (Messrs. Hannoch, Weisman, Stern & Besser, attorneys).

      Mr. John J. Geronimo, County Counsel, for Hudson County Board of Chosen Freeholders.
   Larner, A. J. S. C.

John J. Lemken is the duly elected Surrogate of Hudson County. As the result of an indictment returned against him by the Hudson County grand jury, the Supreme Court entered an order on May 31, 1973 (amended on June 14, 1973) which "restrained and enjoined [him] from serving as Judge and Clerk of the Surrogate’s Court of Hudson County and as Clerk of the Probate Division of the Hudson County Court pending the disposition of the indictment.”

Thereafter, Lemken applied to the Supreme Court for clarification of the order, seeking permission to perform certain functions in the surrogate’s office which he asserted were beyond the ambit of the aforesaid restraining order. The Supreme Court denied the application without passing upon the merits of the same and without prejudice to an application to the assignment judge for the presentation of proofs with respect to items which the applicant asserts to be beyond the scope of the Supreme Court’s restraining order.

Accordingly, application was made to me as assignment judge of Hudson County, pursuant to which a hearing was held at which the surrogate and the county were represented by counsel and proofs were offered in support of the application.

■ The surrogate contends that there are a group of functions performed by him as an elected constitutional officer which are not encompassed within his functions as “Judge and Clerk of the Surrogate’s Court and as Clerk of the Probate Division of the Hudson County 'Court,” and therefore beyond the reach of the imposed restraints. He argues, furthermore, that the Supreme Court did not remove or suspend him as surrogate because such an act would have been beyond the power of the court, citing In re Mattera, 34 N. J. 259, 268 (1961), and that the recent statute authorizing the Supreme Court to suspend or remove a judge does not include a surrogate within its specific terms. N. J. S. A. 2A:1B-1 et seq.

The question whether the Supreme Court has the power to suspend a surrogate is not before me for decision, nor am I called upon in this proceeding to consider the power of the Supreme Court to issue the restraints involved. That underlying legal problem has been argued and determined by the Supreme Court adversely to the applicant by virtue of the assumption of jurisdiction and the entry of the restraining order.

It is within the foregoing framework that I must determine the limited issue whether there are any residual functions of a surrogate which may be continued by the applicant without violating the order of the Supreme Court.

In the testimony before me Lemken advanced the suggestion that he should be permitted to perform the following functions as beyond the reach of the restraint:

1. Preparation of the budget for the surrogate’s office.
2. Review and certification of payrolls.
.3. Supervision of ordering and purchasing of office materials and supplies.
4. Supervision of the filing, recording and storage of records.
•5. Supervision of the Cashier’s Department.
'6. Supervision of the financial reports and records required to be submitted to the county treasurer.

In support of this thesis there was testimony as to the duties and functions of the employees who constitute the supportive personnel for the performance of the proposed activities of the applicant.

The evidence before me is supportive of the conclusion that the contemplated activities involve the administration of the surrogate’s office and its personnel rather than the purely judicial functions of a surrogate. This conclusion, however, does not necessarily lead to the determination that such activities are permissible under the restraining order.

N. J. 8. A. 2A:5-1 defines the authority of the surrogate in the following manner: “He shall hold the surrogate’s court of the county and shall be both the judge and clerk thereof.”

In addition, N. J. 8. A. 2A:3-2 designates the surrogate as the clerk of the Probate Division of the County Court.

The jurisdiction of the surrogate or the surrogate’s court is limited to matters which are not in dispute or in doubt (N. J. 8. A. 3A :2-5, 3A:2-3); and when a doubt or dispute does exist with regard to any matter before the surrogate, he loses jurisdiction and the issues are determined by the County Court. Ibid.

When the Legislature refers to the surrogate as a judge of the surrogate’s court, it contemplates that at least the functions performed by the surrogate and his employees relating to the probate of wills and appointment of administrators, executors and guardians are part and parcel of the judicial function, although the issues are undisputed in nature. Steele v. Queen, 67 N. J. L. 99 (Sup. Ct. 1901); Mellar v. Kaighn, 89 N. J. L. 543 (E. & A. 1916). The surrogate’s court is a court of limited or special jurisdiction whose judgments within that jurisdiction are final unless reversed by the process of appeal. Ibid.

As has been noted, however, the surrogate serves not only as a judge of his court, but also in two other capacities, namely as clerk of his own court and as clerk of the Probate Division of the County Court. These two additional responsibilities are an integral part of the functioning of the surrogate’s court and the Probate Division of the County Court, for no judge can properly or efficiently perform his duties without supportive personnel, particularly in the area of clerks who schedule and record the proceedings which take place in court and the judicial determinations made therein, and file the necessary papers involved in each proceeding.

Applying this truism to the supervision of filing, recording and storage of surrogate’s records, it follows that such activity is within the portion of the order restraining the applicant from serving as clerk of the surrogate’s court and as clerk of the Probate Division of the County Court. The functions of a clerk in either capacity are inseparable from the filing and recording activities of the office or the supervision of those who physically carry on those activities. Every estate file or docket encompasses a case in the surrogate’s court or the county court, and as a consequence every paper or pleading or account or order or release or bond filed therein or recorded in the permanent volumes of the office are within the functions inhibited by the restraining order.

The othef proposed activities listed by the applicant deal' in essence with the management of the office of the surrogate’s court along the lines of procurement of supplies, budgets, payrolls and finances. The suggestion that these activities are beyond the scope of the restraining order presupposes that they are foreign to the duties and functions of a judge and clerk who is elected in that dual capacity as the chief and only judicial officer administrator of the surrogate’s court.

Such a supposition fails to take' into account the powers and responsibilities of a public officer who is in complete control of the operations of his court by virtue of his designation as judge and clerk of that court. As. the sole executive officer he must of necessity deal not only with purely judicial functions but also with all the administrative problems involved in the maintenance and functioning of the court and the office. A judge in full control of a court cannot function without budgets, without funds, or without management of personnel and payrolls. Such judge cannot serve in limbo; he is sustained by these supportive activities. Without them he is unable to serve the public in the capacity to which ho was elected. Although the particular duties may be carried out by subordinates, nevertheless the surrogate, as the judge and clerk of his court, has the responsibility to supervise and see to it that such supportive activities are accomplished.

In reality, a judge of the surrogate’s court is as much a judge in supervising budgets, finances and personnel pertaining to his office as he is in supervising the probate clerks who are deputized to handle probate and estate matters. There can be no differentiation between one group of functions and another for they all merge into the single individual who manages and supervises all the activities of the office through his dual capacity of judge and clerk.

The evidence before me and the applicable law leads to the inescapable conclusion that there are no residual functions or activities of the surrogate which are not encompassed within the framework of the restraints contained in the order of the Supreme Court. The order enjoins him from serving as judge and clerk of the surrogate’s court and as clerk of the Probate Division of the Hudson County Court. I find that all the duties of the surrogate including those listed in the application are within the ambit of this broad restraint. Hence the application is denied.


author: Gascoyne, J. C. C.,

text:
    ANN B. MAULE, AS GENERAL ADMINISTRATOR AND AS ADMINISTRATOR AD PROSEQUENDUM OF THE ESTATE OF HAMILTON B. MAULE, JR., AND ANN B. MAULE, PLAINTIFFS, v. CONDUIT AND FOUNDATION CORP., A FOREIGN CORPORATION AUTHORIZED TO DO BUSINESS IN THE STATE OF NEW JERSEY, AND THE STATE OF NEW JERSEY, DEPARTMENT OF TRANSPORATION, DEFENDANTS.
    Superior Court of New Jersey Law Division
    Decided July 2, 1973.

      Mr. Peter A. Benz for plaintiffs.

      Miss Carol A. Ferentz for defendant Conduit and Foundation Corp. (Mr. John W. Taylor, attorney).

      Mr. Nicholas F. Monteforte for defendant State of New Jersey, Department of Transportation (Mr. George F. Kugler, Attorney General, attorney).
   Gascoyne, J. C. C.,

Temporarily Assigned. Plaintiff instituted a wrongful death action alleging that on August 31, 1971, at about 11:17 p.m., Hamilton B. Maule, Jr. (Maule), age 23, was operating his vehicle in a westerly direction on Eoute 46 in the vicinity of Edwards Eoad, Parsippany-Troy Hills, New Jersey. She further alleged that Conduit and Foundation Corporation (Conduit) was repairing Eoute 46 at this point and maintained the construction in such negligent manner as to cause the death of Maulé.

By leave of court an amended complaint was filed joining the State of New Jersey and the Department of Transportation of the State of New Jersey, both of whom will hereinafter be referred to as the State; The State moved for summary judgment, contending that since the cause of action arose prior to July 1, 1972, the effective date of the New Jersey Tort Claims Act (N. J. 8. A. 59.: 1-1 et seq.), the doctrine of soverign immunity is applicable. Both plaintiff and Conduit contended that since the cause of action antidated Willis v. Dept. of Conservation and Economic Development, 55 N. J. 534 (1970), the State is liable to respond in tort. The court must then resolve whether the tort immunity is or is not applicable in the hiatus between Willis and July 1, 1972. Since there are no reported cases determining this problem, and since it is a recurring problem, it may be advisable to examine the situation in depth.

Over the years our courts have whittled away the doctrine of sovereign immunity as applied to political subdivisions, Milstrey v. Hackensack, 6 N. J. 400 (1951); Kress v. Newark, 8 N. J. 562 (1952); Hartman v. Brigantine, 42 N. J. Super. 247 (App. Div. 1956), aff’d 23 N. J. 530 (1957); Schwartz v. Stockton, 32 N. J. 141 (1960); McAndrew v. Mularchuk, 33 N. J. 172 (1960); Peer v. Newark, 71 N. J. Super. 12 (App. Div. 1961), certif. den. 36 N. J. 300 (1962); Hayden v. Curley, 34 N. J. 420 (1961); Goldberg v. Housing Authority, Newark, 38 N. J. 578 (1962); Amelchenko v. Freehold, 42 N. J. 541 (1964); Titus v. Lindberg, 49 N. J. 66 (1967); B. W. King, Inc. v. West New York, 49 N. J. 318 (1967); Jackson v. Hankinson, 51 N. J. 230 (1968); Bergen v. Koppenal, 52 N. J. 478 (1968); Kent v. Hudson County, 102 N. J. Super. 208 (App. Div. 1968), aff'd 53 N. J. 546 (1969), and to certain autonomous arms of the State, Taylor v. New Jersey Highway Authority, 22 N. J. 454 (1956). The judiciary steadfastly refused to accept tort litigation directly against the State. Fitzgerald v. Palmer, 47 N. J. 106 (1966). The shield against civil liability continued unabated until a chink was put in the armor by P.T.&L. Constr. Co. v. Comm’r of Transportation, 55 N. J. 341 (1970), wherein our Supreme Court held that immunity in contract liability should be abrogated. The State was held liable for contracts made by it even though the court recognized that an appropriation effecting such judgments would be the sole jurisdiction of the Legislature.

Chronologically, Willis, supra, followed. There an infant was injured by a bear which had been caged in a New Jersey State Park. The court said:

Unlike the situation in Fitzgerald v. Palmer, the claim now before us does invite consideration of the basic question of judicial abstention in tort matters, for here, according to the complaint, the State itself generated the risk of injury by caging a ferocious animal without suitable safeguards despite the manifest danger to persons the exhibit was intended to attract.
It is plainly itnjust to refuse relief to persons injured by the wrongful conduct of the State. No one seems to defend that refusal as fair. There has been a steady movement away from immunity * * *. [at 537, 538]

In response to this judicial pronouncement the Legislature enacted L. 1970, c. 98 (N. J. 8. A. 52:4A-1), which precluded civil liability not based on constitutional grounds until July 1, 1971. Subsequent litigation in the P.T.&L. case occurred and the trial court dismissed the case prior to decision on the merits, on the ground of the aforementioned legislation. The Supreme Court certified the matter before argument in the Appellate Division. In a letter to the court the Attorney General conceded that this interim legislation “was designed * * * to give both the executive and legislative branches the opportunity' to study the problems resulting from the P.T.-&L. and Willis decisions without any prejudice to parties who might, during the intervening period, continue to bring their claims before the Subcommittee on Claims,” P.T.&L. Constr. Co. v. Comm’r of Transportation, 57 N. J. 439, 441 (1971). The court affirmed “without prejudice, however, to such further judicial proceedings by plaintiff as may become appropriate as a result of legislative action or in action before July 1, 1971” (at 441).

N. J. 8. A. 52 :4A-1 (L. 1970, c. 98 § 1), effective June 15, 1970, was amended by L. 1971, c. 187, § 1, effective June 2, 1971, precluding any action in tort or contract for recovery or money damages where the cause of action occurred prior to April 1, 1972. An additional amendment followed, which prohibited suits where the cause of action occurred prior to July 1, 1972. The legislative course of action culminated in the passage of the New Jersey Tort Claims Act (N. J. 8. A. 59 :1-1 to 59 :12-3) and the New Jersey Contractual Liability Act (N. J. 8. A. 59:13-1 to 59:13-10).

It is with this legislative and judicial background that a determination of the problem at hand is undertaken, i. e., will a cause of action arising subsequent to Willis, supra and prior to July 1, 1972 be covered by the Tort Claims Act? If it was not so intended, is the act unconstitutional because there is a breach of the equal protection of the law clause of the U. S. Constitution or the New Jersey Constitution.

The New Jersey Tort Claims Act represents the legislative response to Willis. The legislative intent is set forth in N. J. S. A. 59 :l-2 as follows:

The Legislature recognizes the inherently unfair and inequitable results which occur in the strict application of the traditional doctrine of sovereign immunity.- On the other hand the Legislature recognizes that while a private entrepreneur may readily be held liable for negligence within the chosen ambit of his activity, the area within which government has the power to act for the public good is almost without limit and therefore government should not have the duty to do everything that might be done. Consequently, it is hereby declared to be the public policy of this State that public entities shall only be liable for their negligence within the limitations of this act and in accordance with the fair and uniform principles established herein. All of the provisions of this act should be construed with a view to carrying out the above legislative declaration. [Emphasis supplied]

Interestingly, the emphasized portion is almost verbatim the language used by the court in the Fitzgerald case, supra; portions also set forth the philosophy of the Supreme Court in reaching its decision in Willis. Thus, the Legislature has adopted as public policy the enunciations of our highest court.

Another portion of the act, N. J. S. A. 59 :12-3, provides that the act shall not apply to the Willis case. When this section is read in combination with N. J. 8. A. 59:14-4(a), which provides that the act shall become effective on July 1, 1972, there is only one conclusion — that the Legislature did not intend to give recognition to causes of action arising prior to July 1, 1972.

That there is a vast difference between tort and contractual liability was recognized by the Supreme Court in the third P. T. & L. ease, 60 N. J. 308 (1972), when it came on for a review as a result of the legislative enactment of c. 187 extending the 1970 statute to April 1, 1972. Plaintiff moved to restore the cause to the calendar and the court granted the motion. The court held that whether a state is suable within its own courts without legislative consent is a matter of state constitutional law, with due protection of constitutional guarantees of both the Federal and State Constitutions. The court went on to state:

Unlike claims in tort as to which the Legislature may understandably be troubled in deciding upon a substantive basis for State liability, there is no comparable difficulty when the claim rests upon an express contract, [at 315]

When the foregoing language is read with the following language in Willis:

But there are strong reasons why we should not accept other claims already in being. There are no appropriations to pay the obligations the court might declare, nor even, perhaps, to handle the caseload which may ensue. The executive branch will need time to prepare for the additional burden. Then, too, the Legislature may wish to require timely notice of claims to permit an opportunity to investigate. Or the Legislature may choose to fix a monetary limit on recoveries, or to exclude some category of damages, or to adopt a concept of liability different from that of the common law, or to entrust the whole matter to an administrative agency. Mindful as we must be that our dollar judgments will be merely declarations, dependent for their ultimate value upon what the Legislature is willing to do to satisfy them, it is appropriate to postpone the effective date to permit an expression of legislative will, rather than to embark at once upon this new course. Hence, except for the immediate ease, the courts will not accept any tort claim arising before January 1, 1971. See Oxford Consumer Discount Co. v. Stefanelli, 104 N. J. Super. 512, 520-521 (App. Div. 1969), aff’d, 55 N. J. 489 (1970) ; cf. Swits v. Tp. of Middletown, 23 N. J. 580, 598 (1957). If the Legislature establishes an earlier date, we of course, will abide by that decision. [55 N. J. at 541]

it is manifest that the Supreme Court intended to leave the mechanics of setting up a means of recovery, as well as a date when recovery would be allowed, within the discretion of the Legislature.

Cognizance is also given to Harris v. State of New Jersey, 118 N. J. Super. 384 (App. Div. 1972, reversed on other grounds 61 N. J. 585 (1972)), wherein the court reversed the granting of a motion for summary judgment dismissing plaintiff's tort claim on the ground of sovereign immunity. The court held that the abrogation of the doctrine of sovereign immunity in Willis "was held to be not retroactive absent legislative fiat, and was conditioned by a moratory period to enable the Legislature to act.” (at 389; emphasis supplied).

The language used by Justice Proctor in Egan v. Erie R. Co., 29 N. J. 243 (1959), wherein a statute limiting liability of a railroad was under attack, would seem to be applicable here:

Plaintiffs contend that the statute which reflects the common-law policy at the time of its enactment conflicts with the above doctrine and thus the statute should be reconstrued so as to conform with our present decisional law. However, to do so would he a judicial usurpation of the legislative function. There is no question that the Legislature, subject to constitutional limitations, may fix the State’s policy as to rules of conduct which result in liability or nonliability. (Citations) In such circumstances it is the duty of the court to apply the legislative will notwithstanding that it may conflict with the court’s own philosophy. Baader v. Mascellino, 116 N. J. Eq. 126 (E. & A. 1934). In the present instance the Legislature has solidified the common law in effect at the time of the enactment as it related to trespassers upon the rights of way of railroads. The declaration of a contrary rule on grounds of policy is a legislative rather than a judicial function. Cf. Cohen v. Borough of Bradley Beach, supra [135 N. J. L. 276]. That the courts have expanded the duties of landowners in other areas does not permit them to encroach upon a field where the Legislature has spoken, [at 252]

And so here, the court should not encroach in the legislative sphere where the Legislature has acted, absent a constitutional violation. It is therefore held that the action of the Legislature was reasonable, absent a violation of the equal protection of the law clause.

The burden which rests on one asserting that a given piece of legislation contravenes the equal protection clause is set forth in Two Guys from Harrison, Inc. v. Furman, 32 N. J. 199 (1960), where the court quoted with approval the following language of N. J. Restaurant Ass’n, Inc. v. Holderman, 24 N. J. 295, 300 (1957) :

The burden oí demonstrating that a statute contravenes the equal protection clause is extremely formidable, as is attested by the long trial of failure. In addition to the strong presumption of constitutionality with which all organic challenges are approached, one who assails a statute on this ground must contend with principles of unusual elasticity. It is easily stated that the classification (1) must not be palpably arbitrary or capricious, and (2) must have a rational basis in relation to the specific objective of the legislation. But the second proposition is qualified by limitations which compound the difficulties of one who assails the legislative decision. Thus it is not enough to demonstrate that the legislative objective might be more fully achieved by another, more expansive classification, for the Legislature may recognize degrees of harm and hit the evil where it is most felt. [Citations]. The Legislature may thus limit its action upon a decision to proceed cautiously, step by step, or because of practical exigencies, including administrative convenience and expense, [citations] or because of “some substantial consideration of public policy or convenience or the service of the general welfare.” DeMonaco v. Benton, 18 N. J. 352, 360 (1955). Hence it may “stop short of those cases in which the harm to the few concerned is thought less important than the harm to the public that would ensue if the rule laid down were made mathematically exact.” Dominion Hotel, Inc. v. State of Arizona, supra (249 V. S. [265] at p. 268, 39 S. Ct. [273] at p. 274, [63 L. Ed. 597] ).**•* [at 218]

The court went on to hold that in applying these principles it was necessary to ascertain the evil sought to be remedied and then measure that against the reasonableness of the classification.

In Sarner v. Union Tp., 55 N. J. Super. 523 (Law Div. 1959) it was held:

It has been said that the courts will not pass judgment upon the wisdom of the Legislature in enacting a law, but will only ascertain if the Legislature has kept within its powers. State v. Garden State Racing Ass’n, 136 N. J. L. 173 (E. & A. 1947). This case also holds that the Legislature had broad powers to classify and, so long as the benefits derived and the burdens imposed bear alike upon every one within the class and the classification can be justified upon any reasonable theory, it cannot be declared a violation of any constitutional provision. But such classification must have some reasonable and just relation either to the general object of the legislation or to some substantial consideration of public policy or convenience or service to the general welfare. Washington National Ins. Co. v. Board of Review, 1 N. J. 545 (1949). It must not be illusory. Arbitrary selection can never be justified by calling it classification. The equal protection required by the Fourteenth Amendment forbids this. Gulf, C. & S. F. R. Co. v. Ellis, 165 U. S. 150, 17 S. Ct. 255, 41 L. Ed. 666 (1897). The Court in the Washington National case, supra, 1 N. J. at page 554, pointed out that care must be exercised that the efficacy of constitutional guaranties shall not be whittled away by indulging in unwarranted presumptions of a factual basis for the legislation.
While equal protection does not foreclose reasonable legislative classification, the classification must be non-discriminatory and bear a reasonable relationship to the general object of the legislation. N. J. Restaurant Ass’n v. Holderman, 24 N. J. 295 (1957) ; Pierro v. Baxendale, 20 N. J. 17 (1955) ; De Monaco v. Renton, 18 N. J. 352 (1955). [at 533, 534]

With these guidelines, an examination of the legislation is undertaken to determine whether the constitutional guarantee of equal protection of the law has been violated.

There can be no dispute that had the Legislature included all causes of actions arising after the Willis decision, that it had a right to do so. But does it necessarily follow that in failing to do so, did it keep within its powers, keeping in mind its broad powers to classify ? As was noted above in the N. J. Restaurant Ass’n case, it is not sufficient to "demonstrate that the legislative objective might be more fully achieved by another, more expansive classification” and the Legislature may proceed” because of practical exigencies, including administrative convenience and expenses.” These factors were recognized by the Supreme Court in Willis when it declared that it would not accept tort claims arising before January 1, 1971. ETor should the fact that the court established January 1, 1971 as the date on which it would accept claims suggest that this was a judicial mandate to the Legislature that any legislation would have to adopt this as the date. It should be read only as indication by the Court that the Legislature should act, and if it failed to respond, then the court would act.

The classification, in view of the foregoing, is not “palpably unreasonable or capricious” and “does bear a reasonable relationship to the evil sought to be corrected.” It treats all those within the same class equally and is non-discriminatory. The legislation therefore does no violence to the equal protection clause of either the Federal or State Constitutions.

The motion for summary judgment will therefore he granted, with counsel for the State to submit an appropriate order.


author: Schroth, J. M. C.

text:
    STATE OF NEW JERSEY, PLAINTIFF, v. ROBERTA ANNE LIPPINCOTT, DEFENDANT.
    Municipal Court of Trenton
    Decided April 23, 1973.

      Mr. Ira C. Miller argued the cause for the Defendant-Petitioner (Pellettieri & Rabstein, Attorneys).

      Mr. Hank San Giacomo, Deputy Attorney General, argued the cause for the State of New Jersey (Mr. George F. Kugler, Jr., Attorney General of New Jersey, Attorney).

      Mr. Robert M. Liwacz argued the cause for the City of Trenton (Mr. Robert A. Gladstone, Trenton City Attorney).

      Mr. Stephen J. Zielinski argued the cause for the County of Mercer (Mr. Harvey L. Stern, Mercer County Attorney).
   Schroth, J. M. C.

In this matter the law firm of Pellettieri & Eahstein (Ira C. Miller, Esquire, appearing,) was appointed to represent the defendant by the Trenton Municipal Court on the grounds that the Defendant could not afford to retain her own attorney and was entitled to representation under the guidelines of Rodriquez v. Rosenblatt, 58 N. J. 281 (1971).

Defendant is charged with driving while intoxicated in violation of N. J. S. A. 39:4-50 (a) and careless driving in violation of N. J. S. A. 39 :4-97.

Defense counsel has filed a motion seeking the appointment of an expert witness at public expense. Paragraph 4 of the petition states:

The undersigned, as Counsel for the Petitioner, having reviewed the facts and circumstances herein, represents to this Court that he cannot adequately prepare a defense nor sufficiently discharge his obligation to the Petitioner or the Court without the services of an expert witness competent to testify as to the consumption, ingestion and absorption rate and effects of alcohol upon the human body.

Oral arguments on said motion were heard before me on March 14, 1973. In addition, briefs were submitted by the parties.

It appears to the court that there are at least one and possibly two questions before it. The initial inquiry is whether defendant is entitled to the appointment at public expense of an expert witness to aid in her defense. If this question is answered in the affirmative the second inquiry becomes whether the City of Trenton or the State must bear that expense which, of course, must be reasonable in nature.

In Rodriquez v. Rosenblatt, supra, our Supreme Court held:

Our municipal court judges have had and continue to have broad discretion to assign free counsel to indigent defendants whenever justice so requires. That discretion may be exercised liberally under general guidelines without entailing the feared inundations. When the very charge and the attendant circumstances indicate that the indigent defendant will be in need of the assistance of assigned counsel, he should of course have it. Indeed, whenever the particular nature of the charge is such that imprisonment in fact or other consequence of magnitude is actually threatened or is a likelihood on conviction, the indigent defendant should have counsel assigned to him unless he chooses to proceed pro se with his plea of guilty or his defense at trial [58 N. J. at 295]

Petition of the attorney for the defendant establishes his sincere belief that he cannot adequately and properly represent here without the assistance of an expert witness who must bo paid. It appears to me that to assign an attorney and then deny him the means necessary to provide an adequate, proper and complete defense, would be contrary to the intention of the Rodriquez holding.

The purposes of assigning counsel to represent an accused who cannot afford to retain an attorney are to provide equal protection under our laws and to effectuate justice. In this case it is undisputed by any of the parties that there is the need for an export witness to adequately protect defendant’s rights.

The: City of Trenton in its brief argues that this court does not have jurisdiction to appoint an expert witness because that is not one of the enumerated statutory powers given to municipal courts. It should be noted that the power to assign an attorney in a case such as this one is not a statutorily enumerated power either. As was pointed out in Rodriquez, municipal court judges have had and continue to have broad discretion to assign free counsel to indigent defendants whenever justice so requires. I conclude that the right to assign an expert witness in this case is also within the court’s broad discretion since it is apparent to me that justice so requires.

It is, therefore, held that petitioner is entitled to the: appointment of an expert witness at public expense.

The next question is whether the reasonable fee of the expert witness should be paid by the City of Trenton or the State.

In State v. Rush, 46 N. J. 399 (1966), our Supreme Court held:

That the county must meet the cost of criminal prosecutions is clear. The county is a sub-division of the State, constituted to perform certain functions of State government *' * *, and among them is the prosecution of criminal cases. It is generally held that the county is liable for the expenses involved, either by virtue of expressed statutory provision or by necessary implication from the statutory scheme. * * * [at 414]

And the court added:

Thus the “necessary expenses” of the prosecution are the burden of the county. Within that category must fall the expense of providing counsel for an indigent accused, without which a prosecution would halt and inevitably fail under Gideon v. Wainright, supra, 372 U. S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799. [at 414, 415]

The case at bar is entitled, “State of New Jersey v. Roberta Anne Lippincott.” It is not, “City of Trenton v. Roberta Anne Lippincott.”

Since this matter is being prosecuted in the name of the State of New Jersey, there appears to be clear direction indicating that the holding in State v. Rush, supra, is applicable even though that case dealt with an indictable offense and the present case involves two motor vehicle charges, one of which is very serious in nature, prescribing penalties of considerable magnitude:

N. J. S. A. 39:5-41 provides that:

All fines, penalties and forfeitures imposed and collected under authority of law for any violations of the provisions of this Title, other than those violations in which the complainant is the commissioner, a member of his staff, a member of the State Police, an inspector of the Public Utility Commission, or a law enforcement officer of any other State agency, shall be forwarded by the magistrate to whom the same had been paid to the proper financial officer of the county wherein they were collected, to be used by the county as a fund for the construction, re-construction, maintenance and repair of roads and bridges, snow removal, the acquisition and purchase of right-of-way, and the purchase, replacement and repair of equipment for use on said roads and bridges therein.

The provisions of the above statute make it clear that the county would reteeive and be the beneficiary of any fines that might be imposed in this particular case. It is noted that the fines that could be imposed upon conviction are quite substantial. In addition, the County of Mercer is a constant recipient of similar and other fines imposed in the Trenton Municipal Court for various motor vehicle violations.

The holding in State v. Rush, supra, the provisions of N. J. S. A. 39 :5-41, and the equities of this particular case lead me to the conclusion that the County of Mercer is the proper public body to bear the expense in question.

It is noted that none of the parties, including the County of Mercer, has questioned the authority or jurisdiction of this court to decide this particular question at this time.

It is, therefore, held that the reasonable expense incurred for the appointment of an expert witness in this matter be borne by the County of Mercer.


author: Per Curiam.

text:
    THOMAS G. MARKS, PLAINTIFF-APPELLANT, v. THE TOWNSHIP COMMITTEE OF THE TOWNSHIP OF NEW HANOVER, ETC., ET AL, DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Submitted May 29, 1973
    Decided July 12, 1973.

      Before Judges Lora, Allcorn and Handler.

      Messrs. Hartman, Schlesinger & Schlosser, attorneys for appellant (Mr. Robert A. Porter on the brief).

      Mr. Robert C. Maida, attorney for respondents.
   Per Curiam.

Plaintiff appeals from the dismissal of his complaint in lieu of prerogative writs which sought a declaration that the governing body of New Hanover “shall forthwith consist of 5 members” instead of its current composition of three members.

The concerned municipality (which, apparently, has not been made a party to this proceeding), is a township situated in Burlington County. The pertinent portions of those sections of the applicable statutes controlling the membership of the governing body of a township, provide:

The township committee shall consist of three members except where otherwise specifically provided by law. * * * [N. J. S. A. 40:146-11
In every township s" * * having a population of more than forty-five hundred, the township committee shall consist of five members. * * * [¡V. J. 8. A. 40:146-2]

New Hanover contains within its borders portions of the federal enclaves commonly known as Fort Dix and McGuire Air Force Base, military reservations under the jurisdiction of the United States of America. According to the advance report of the 1970 census of New Jersey, published by the U. S. Department of Commerce as of December, 1970, parts of which are reproduced in the appendix, New Hanover had a total of 27,410 persons living within its geographical boundaries, of whom 23,045 were attributed to Fort Dix and 4,109 were attributed to McGuire Air Force Base. By simple computation, the persons not living within one or the other of the military reservations amounted to 256 in number.

The single issue in dispute is whether all or any part of the persons living in one or the other of the military reservations within the township should be included in determining its population within the meaning of that term as it is used in N. J. 8. A. 40:146-2. It is the position of appellant that the census figures are controlling and that all persons living on the military reservations within the township must be included. He points to the definition of the term as set forth in N. J. 8. A. 1 :l-2, which reads in relevant part:

Unless it be otherwise expressly provided or there is something in the subject or context repugnant to such construction, the following words and phrases, when used in any statute and in the Revised Statutes, shall have the meaning herein given to them.
Population; inhabitants. The word “population,” when used in any statute, shall be taken to mean the population as shown by the latest Federal census effective within this State, and shall be construed as synonymous with “inhabitants”.

Having due regard to the subject matter, it is apparent that the word “population,” in the context in which it is used in N. J. 8. A. 40:146-2, necessarily imports some degree of permanency of residence greater than that represented by those military personnel who, literally, are transients • — ■ those “passing through or by a place with only a brief stay or sojourn.” Merriam-Webster Third International Dictionary (19-61). It surely could not have been intended to include, for example, personnel ordered to one of these bases as a way station for transportation to another installation or assigned temporarily for a brief, specified period of training.

On the other hand, the degree of permanency of residence required to- qualify as an “inhabitant” or one of the “population”, no longer may be measured according to the test enunciated by our Supreme Court in 1957, as “one who actually and permanently resides in a given place and who has his domicile there * * * [and] implies permanent abode.” In re Loch Arbour, 25 N. J. 258, 263. This concept of permanent abode and domicile, in the sense of a present intent to remain indefinitely, has been recently substantially modified in Worden v. Mercer Cty. Bd. of Elections, 61 N. J. 325 (1972). It was there held, in effect, that college students who were bona fide residents of their college campuses and who satisfied the State’s durational residence requirements, were entitled to register and to vote in their college communities, without regard to the presence or absence of any intention to make such communities their homes indefinitely.

So far as concerns voting eligibility, we can discern no significant relevant distinctions between college students who are bona fide residents of their college campuses and military personnel who are bona fide (i. e., nontransient) residents of their military reservations. See New Hanover Tp. v. Kelly, 121 N. J. Super. 245 (Law Div. 1972). The fact that the person in military service may reside at his military reservation pursuant to ordered assignment, rather than as the result of his free and voluntary choice, differentiates him not at all from any other person whose business, employment or other pursuits compel his residence at or near a given community and involve regular or irregular transfer from place to place.

We are not unmindful of the provisions of N. J. Const. (1947), Art. II, par. 5 to the effect that no person in the military service of the United States “shall be considered a resident of this State by being stationed in any military reservation within the State.” In view of Carrington v. Rash, 380 U. S. 89, 85 S. Ct. 775, 13 L. Ed. 2d 675 (1965), it is dubious that such provision could itself withstand constitutional attack were it to be interpreted as creating an irrebutable presumption of nonresidence for all such military personnel for purposes of voting. See New Hanover Tp. v. Kelly, supra, 121 N. J. Super. at 250-251.

Nor are we unaware that the United States Supreme Court, in Carrington, confirmed the proposition that a state still may “require that all military personnel * * * be bona fide residents of the community,” “with the intention of making [the State] . . . their home indefinitely,” as a prerequisite to exercising their franchise. 380 U. 8., at 93-94, 85 S. Ct. at 779. By necessary implication, however, the same requirement would have to be applied to all other residents to qualify for voting — including college students. New Jersey could not single out military personnel and impose upon them a more restrictive requirement in this regard than it imposed upon other bona fide residents. Worden v. Mercer Cty. Bd. of Elections, supra.

Quite obviously, the question presented for determination in the case presently before the court does not directly involve the right of military personnel (and the immediate members of their households), who are bona fide residents at one or the other of these two military reservations for the requisite durational period, to register and to vote in state and local elections. Nevertheless, the issue of the nature and duration of residence required to qualify for voting, and the issue of the nature and duration of residency required with respect to political representation, have sufficient state and local concerns in common to justify (if not to compel) similarity of treatment. Opinion of the Justices, 111 N. H. 146, 276 A. 2d 825 (Sup. Ct. 1971). See also, Mahan v. Howell, 410 U. S. 315, 93 S. Ct. 979, 35 L. Ed. 2d 320 (1973).

Thus, in the determination of which among those persons shown by the most recent census to be living at these military reservations are to be counted in the compilation of the population or number of inhabitants of the municipality for the purpose of fixing the size of the municipal governing body, only those bona fide residents who have satisfied or reasonably may be expected to satisfy the durational residence requirements for voting imposed by the State (and the bona fide resident members of their households), should be included. It would be anomalous indeed to include in such count personnel who were not and could not attain voting eligibility by reason of their assignment to one of these installations for a specified period which is less than the State’s minimum durational residence requirement. Their interest, if any, in the number or make-up of the membership of the local governing body would be de minimis. See Opinion of the Justices, supra; Burns v. Richardson, 384 U. S. 73, 90-92, 86 S. Ct. 1286, 16 L. Ed. 2d 376 (1966) ; Kirkpatrick v. Preisler, 394 U. S. 526, 534-535, 89 S. Ct. 1225, 22 L. Ed. 2d 519 (1969), reh. den. 395 U. S. 917, 89 S. Ct. 1737, 23 L. Ed. 2d 231 (1969).

Accordingly, the judgment of the Law Division is reversed and the cause is remanded for trial for the determination of the population of New Hanover, with directions that within 30 days after the filing date of this opinion plaintiff join the municipality as a party defendant so that any determination will bind the municipality, and, in default of such joinder, the complaint be dismissed. Ho costs.

       Such concept seems still to be accepted by the American Law Institute. See Restatement, Conflicts 2d, “Domicil,” §§ 11 et seq. (1971), particularly § 18, comment f(13).

      Compare Vlandis v. Kline, - U. S. -, 93 S. Ct. 2230, 37 L. Ed. 2d 63 (1973).

        Contra, § 17, Restatement, supra n. 1.

      Compare provisions of N. J. Const. (1947), Art. IV, § II, pars. 1 and 3, governing apportionment of the State Legislature.


author: Lynch, J. A. D.

text:
    TOWNSHIP OF WAYNE IN THE COUNTY OF PASSAIC, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. RICMIN, INC., ET AL., DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued June 4, 1973
    Decided July 12, 1973.

      Before Judges Fritz, Lynch and Trautwein.

      Mr. Gary L. Falkin argued the cause for appellant (Messrs. Beckerman, Franzblau & Cohen, attorneys; Messrs. S. M. Chris Franzblau and Gary L. Falkin of counsel and on the brief).

      Mr. Michael K. Diamond argued the cause for respondent.
   The opinion of the court was delivered by

Lynch, J. A. D.

In this condemnation case the complaint was filed before the enactment of the Eminent Domain Act of 1971 (N. J. 8. A. 20:3-1 et seq.) which became effective December 21, 1971. The issue before us is whether, under that statute, interest on the ultimate award of $170,000 runs, as defendant contends, from the time of filing the complaint on July 27, 1970 to the time plaintiff deposited $140,000 with the clerk of the court on April 14, 1972 (pursuant to N. J. 8. A. 20:3-18). The trial court held that defendant was entitled to interest only on $30,000, representing tlie difference between the deposit and the ultimate award, from the date of the deposit until the date of closing.

Defendant relies on N. J. 8. A. 20:3-31, which reads:

Interest as set by the court upon the amount of compensation determined to be payable hereunder shall be paid by the condemnor from the date of the commencement of the action until the date of payment of the compensation; provided, however, that there shall be excluded from the amount upon which interest shall be calculated, ail moneys deposited jmrsuant to Article V hereof ; and provided, further, that interest payable hereunder shall be subject to abatement for rents and profits derived from the property by the eondemnee during- the period for which interest is payable hereunder, and/or for the fair rental value of such property or any portion thereof occupied by the eondemnee during such period.

The argument of defendant settles upon a literal reading of the first clause of the foregoing section of the new statute:

Interest as set by the court upon the amount of compensation determined to be payable hereunder shall be paid by the condemnor from the date of the commencement of the action until the date of payment of the compensation; * *■ «. [Emphasis added]

We disagree with such a construction of the statute, as the clause upon which defendant relies is taken out of context. In fact, it ignores the very next clause in that section, which expressly repudiates defendant’s construction. That clause reads, "provided, however, that there shall he excluded from the amount upon which interest shall he calculated, all moneys deposited pursuant to Article V hereof j * * *” i.e., N. J. 8. A. 20:3-18. (Emphasis added). The amount upon which defendant calculates interest is $1'70,000 (the amount of the ultimate award) without excluding the $140,000 deposit made by plaintiff pursuant to section 18. True, defendant calculates interest on $140,000 from the date of the filing of the complaint only to the date of the deposit and upon the remaining $30,000 thereafter. But the statute mandates that the $140,000 must be excluded entirely as a base upon which interest is to be calculated.

In a context, as here, where the condemnor has made such a deposit, and the ultimate award is greater, interest is awarded only on the excess. N. J. 8. A. 20:3 — 23 reads, so far as pertinent:

Withdrawal of funds
Upon application of any condemnee, * * * the court may direct that the estimated compensation on deposit * * * be paid to the person or persons entitled thereto, on account of the compensation to which they may be entitled in the action; * * * and provided further, that if the award or judgment fixing such compensation be more than the amount deposited, condemnor shall pay the excess to the condemnee entitled thereto, uiith interest at a rate to be fixed by the court from the date of the deposit * * *. [Emphasis added]

Thus, section 23 of the statute is tailored exactly to the facts before us. The condemnee withdrew the deposit of $140,000. The award was more than the deposit. The excess was $30,000. It is on that sum that interest is to be paid. And it is to be calculated from the date of deposit and not from the filing of the complaint, as defendant contends.

Further, defendant’s construction of the statute would disavow the traditional concept of just what “interest” is. It is an exaction for past due obligations and in essence is in the nature of a penalty. It is compensation for delay in payment. Burlington County v. Martin, 128 N. J. L. 203, 205 (Sup. Ct. 1942), aff’d 129 N. J. L. 92 (E. & A. 1942); Fidelity Mutual Life Ins. Co. v. Wilkes-Barre and Hazleton R. Co., 98 N. J. L. 507 (E. & A. 1913). As said in Consolidated Police, etc., Pension Fund v. Passaic, 23 N. J. 645, 653 (1957) : “The law imposes a duty to pay interest from the time payment of a principal is due, or from the time of the wrongful detention.” (Emphasis added). Absent a statute, interest is not allowable on an indebtedness except when the debtor is in default. 47 C. J. S. Interest § 26 at 38 (1946). And when the debtor is not in default interest is not allowed. Cf. State v. Pia Star Realty Co., Inc., 118 N. J. Super. 55, 64 (Law Div. 1971).

In a condemnation case, whether interest must be paid ordinarily depends on whether the condemnor goes into possession without full payment and the owner is deprived of his property. Interest is a means of measuring the value of the deprivation of the use of property. 3 Nichols, Eminent Domain, § 8.63 at 160 (1965). It is not until the condemnor goes into actual possession, ox takes title, that the owner is deprived of his property or its use and profits. State v. Angleton, 89 N. J. Super. 85 (App. Div. 1965); State, by State Highway Commissioner v. Hawkins, 63 N. J. Super. 326 (App. Div. 1960). It is only when the eondemneo is thus “deprived" that the debt is “due."

The condemnee here was not deprived of the use or title of its property at the time of the “commencement of the action," in terms of N. J. S. A. 20 :3-31. Therefore, there was no debt owed by the condemnor at that time; similarly, there was no “default" by it and there was no necessity for measuring the value of the “deprivation of the use of the property", (interest). The result would be different — and § 31 would be literally applied to compel calculation of interest from the filing of the complaint —• if, coincident with such filing, the declaration of taking (§ 17) was also filed.

It is true that the Legislature might have, by the new act of 1971, changed the foregoing concept of interest as it thus existed. But if a change in common law is to be effectuated, the legislative intent to do so must be clearly and plainly expressed. Blackman v. Iles, 4 N. J. 82, 89 (1950). Statutes are to be construed in reference to principles of the common law, and the law infers that a statute did not intend to make any alteration to common law other than what is specified. State v. Western Union Telegraph Co., 12 N. J. 468, 486 (1953), app. dism. 346 U. S. 869, 74 S. Ct. 124, 98 L. Ed. 379 (1953). There is no clear language in the 1971 act which would effect such change in the common law concept of interest so that it should begin to run before the “debt” of the condemnor was due, i. e., at the commencement of the action. What was specified was that, upon the filing of the declaration of taking, the condemnor “shall deposit the amount of such estimated compensation with the clerk of the court.” N. J. 8. A. 20:3-18. Upon service of a copy of the declaration, “the right to the immediate and exclusive possession and title to the property * * * shall vest in the condemnor * * N. J. 8. A. 20:3-19. Then the condemnee is “deprived” of his property. And, if the ultimate award is more than the deposit, the excess shall be paid to the condemnee “with interest * * * from the date of the deposit.” N. J. 8. A. 20:3-23. Such is the situation here. That statutory pattern would be nullified by defendant’s contention that, in the context of a deposit in court of $140,000 on April 14, 1972, interest shall run from the filing of the complaint on July 27, 1970 to that date on said sum. Such a construction would also defy the principle of construction that words in a statute ought not to have a retrospective operation unless they are so clear, strong and imperative that no other meaning can be given to them. Nichols v. Board of Education, Jersey City, 9 N. J. 241, 248 (1952); La Parre v. Y. M. C. A. of the Oranges, 30 N. J. 225, 229 (1959). And a statute which changes settled law and relates to substantive rights is prospective only, unless there is an unequivocal expression of contrary legislative intent. Pennsylvania Greyhound Lines, Inc. v. Rosenthal, 14 N. J. 372, 381 (1954). There is no such showing here. In fact, the provisions of § 23 as above set forth expressly repudiate defendant’s contention that interest shall run from the filing of the complaint.

Defendant also argues that, since the parties agreed that the date as of which compensation was to be determined was the date of the commencement of the action .(July 27, 1970), such was the date compensation became due and that from which interest should run. Not so. Under the 1971 act the complaint in an eminent domain proceeding simply prays for judgment that the condemnor is duly vested with and has duly exercised its authority to acquire the property being condemned, and for an order appointing commissioners to fix compensation. N. J. 8. A. 20 :3 — 8. The “taking” does not occur until the filing and service of the “declaration of taking” pursuant to N. J. 8. A. 20 :3-17 and 19. As said in 3 Nichols, Eminent Domain, § 8.63 at 174, n. 23 :

Howe-iCi. agreement of the parties that the property shall be evaluated as of a certain and fixed date, does not entitle the owner to interest from such date. In United States v. Mahowald [8 Cir.], 209 F (2d) 731, the court said:

“In the instant case the owners of the land in suit were not deprived of their prosierty until the declarations of taking were filed by the Government and estimated compensation was deposited. The stipulation made at the trial, obviously for the purpose of fixing the time as of which the market value of the lands in suit should be determined by the jury, deprived the owners of nothing and gave the Government no interest in their lands. To give to the making of this stipulation the full effect of actual possession of the lands in suit by the Government is, rye think, unwarranted and unrealistic. The jury awards merely fixed the compensation which would have to be paid for the various tracts in suit if and when the Government took physical possession of them or filed declarations of taking.”

We are aware that N. J. S. A. 20 :3 — 4 provides that the 1971 act “shall apply to all actions instituted after” its effective date (December 21, 1971) and “to all proceedings taken subsequent thereto in all actions pending on such effective date.” The “proceeding” which was here taken was the order of November 21, 1972 which determined that defendant was entitled to interest only on the $30,000 excess over the amount deposited, from the date of deposit, April 14, 1972 to the date of closing, October 4, 1972. True, the new act was “applicable” to that proceeding. In entering that order, however, as demonstrated above, the court was bound by N. J. 8. A. 20 :3 — 23 of the 1971 act and so applied it as that section mandates.

The judgment below is affirmed.

      Defendant calculates the interest which it claims to be due as follows: (a.) Interest was computed on $170,000 from July 27, 1970 (date of filing of complaint and date for determination of value of property) to April 14, 1972 (deposit of $140,000 by the plaintiff and filing of declaration of taking) at 6%, which figure is $18,560; (b.) interest on $30,000 from April 14, 1972 to October 4, 1972 (date of receipt of $30,000 by defendant) at 6%, which figure is $865; (c.) substracted from the $19,425 (i. e., $18,560 plus $865) is a reasonable rent derived from the property, which is $750 a month, which number is multiplied by 20% months (from July 27, 1970 through April II, 1972), which figure is $15,375; (d.) the difference between the total interest due defendant of $19,425 and the rental due plaintiff: of $15,375 is $4,050, in favor of defendant.

      Sections 20 :3-15 to 20:3-28.


text:
    ANNA LUE KING, APPELLANT, v. NEW JERSEY DEPT. OF INSTITUTIONS AND AGENCIES AND PASSAIC COUNTY WELFARE BOARD, RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued June 20, 1973
    Decided July 12, 1973.

      Before Judges Halpern, Matthews and Lynch.

      Ms. Ann Mane Boylan, Passaic County Legal Aid Society, argued the cause for appellant.

      Mrs. Joan W. Murphy, Deputy Attorney General, argued the cause for respondent New Jersey Dept. of Institutions and Agencies {Mr. George F. Kugler, Jr., Attorney General, attorney; Air. Stephen Skillman, First Assistant Attorney General, of counsel).

      Mr. Ronald A. Breslow argued the cause for respondent Passaic County Welfare Board.
   Per Curiam.

Appellant, a recipient of old age assistance pursuant to N. J. 8. A. 44:7 — 1 et seq., appeals from a decision of the Department of Institutions and Agencies (Department) which affirmed the action of the Passaic County Welfare Board in denying her application for an increase in her monthly allowance of $162. Appellant asserts that such amount is inadequate to provide for her reasonable maintenance and well-being. She states that her monthly rent is $135, her utilities average $34 a month, and food stamps cost $6 a month, totaling $175.

It is obvious from the above figures that appellant’s expenses exceed her income. In addition, she suffers from arthritis, rheumatism and asthma, plus several other ailments. Her application for an increased allowance was triggered by the fact that she had incurred an unpaid utility bill of $247, resulting in Public Service giving notice that the service would be cut off unless the delinquent bill was satisfied by payment of $64 by May 23, 1973 and $44 on the first of each month thereafter. Plaintiff’s “emergency” application to the welfare board was for an increase of $54 a month, to be used towards payment of the first installment of the utility bill, the remaining $10 to be paid by her, and $39 monthly thereafter, with the remaining $5 to be paid by appellant. The first installment of $64 was satisfied by payments of $10 by appellant herself and $54 by the welfare board pursuant to an interim order of a judge of the Appellate Division, pending disposition of the motion for temporary relief before this court.

In its decision the Department held that the determination of appellant’s grant in the amount of $162 a month was correctly based on the rules and regulations adopted by the Division of Public Welfare (Division) pursuant to N. J. 8. A. 44:7-6 and -12, and in accordance with the Einancial Assistance Manual used by the Division. The grant of $162 a month is a “flat grant” arrived at pursuant to the regulations of the Division which became effective July 1, 1971, whereby the Categorical Assistance Budget, theretofore the guide, was replaced by the Einancial Assistance Manual as the basis for establishing the amount of a grant. Cf. New Jersey Welfare Rights Organization v. Cahill, 349 F. Supp. 501 (D. N. J. 1972), for explanation of the difference between the manuals. The Division has provided that a county welfare board may make additional payments to a recipient beyond those established in the “flat grant” only where an “emergent situation” exists. An “emergent situation” is defined as “a sudden and urgent occasion calling for immediate financial assistance, recognized in this Chapter when the occurrence is one over which the eligible unit had no control or opportunity to plan in advance.” N. J. A. C. 10: 82 — 1.1. And N. J. A. O. 10 :82 — 12.11(c) reads:

When there has been substantial loss of shelter, food, clothing or household furnishings by fire, flood or other similar natural disaster; or when because of an emergent situation over which they had no control or opportunity to plan in advance, the eligible unit is in a state of homelessness; and the county welfare board determines that the providing of shelter and/or food and/or emergency clothing, and/or minimum essential house furnishings are necessary for health and safety, such needs may he recognized in accordance with the following regulations and limitations: * * *.

It was on the basis of these provisions that appellant was denied her application for an increase in her grant. The hearing officer had found:

in the instant case, appellant did have her public assistance grant available to her, with which to pay her hill. Consequently, she could have averted her “imminent state of homelessness” had she only paid her monthly hill. Therefore, the Hearing Officer finds that appellant did have control of the situation and an opportunity to plan in advance. The Hearing Officer finds the action by the Welfare Board consistent with official regulations as applied to facts presented during the hearing proceeding.

That finding was affirmed by the Decisional Panel of the Division and by the final decision of the Department.

At oral argument appellant’s attorney expressly abjured any attack on the concept of “flat grant” as such. Cf. New Jersey Welfare Rights Organization v. Cahill, supra. Rather, the argument is made that the regulations are in conflict with the statute pursuant to which they were promulgated. Appellant interprets the statute as mandating accommodation of the amount of assistance to a person’s “individual needs, circumstances and conditions” snch as hers here. In support of that proposition she quotes from N. J. 8. A. 44:7-6 in this inaccurate and truncated fashion:

The division of Old Age Assistance * * * shall supervise the administration of old age assistance to the end that there may be throughout the state a uniform standard of * * * methods of treatment of aged needy persons based upon their individual needs and circumstances and with due regard to varying living conditions and costs of living * * *. Such division shall prescribe * *' * such additional rules and regulations as are necessary and proper for carrying out the provisions of this chapter. [Emphasis appellant’s]

A reading of that section in full context indicates that its intent is to mandate “a uniform standard of records and methods of treatment” based on individual needs and circumstances, and not to mandate monetary satisfaction of one’s individual needs.

Likewise, in truncated fashion, appellant quotes from N. J. 8. A. 44:7-12 as follows:

The County Welfare Board shall extend to those persons * * * eligible * * * assistance adequate to provide for their reasonable maintenance and toell-being * * * the amount and nature of assistance * * * shall be determined * * with due regard to the conditions existing in each case, in accordance with the rules and regulations of the State division. [Emphasis appellant’s]

As thus quoted, the statute would mandate assistance to provide for appellant’s “reasonable maintenance and well-being” with “due regard to the conditions existing” in her case. But in full and relevant context the section says:

The amount and nature of assistance which any person shall receive, the manner of providing it, and the conditions upon which it is granted, shall be determined by the county welfare board as the bureau of old age assistance with due regard to the conditions existing in each case, in accordance with the rules and regulations of the State division * * *. [Emphasis ours]

As we have stated above, the rules and regulations of the Division specifically provide for those instances in which emergency assistance payments for food, shelter, clothing or household furnishings are made. N. J. A. C. 10 ¡82-12.il (c), (1), (2), (3) and (4). Appellant’s circumstances do not fall within those provisions. And the significant characteristic of the regulations which excludes her eligibility here is that an "emergent situation” must be a "sudden and urgent occurrence” over which she had "no control or opportunity to plan in advance.” N. J. A. C. 10:82-1.1; 10 ¡82-12.il (c). The Department decision holding that appellant had an opportunity to plan in advance with respect to her utility bill is supported in the record. Any remedy to satisfy appellant’s present unfortunate situation lies with the Legislature or amendment of the rules and regulations of the Division within its statutory authority.

It is within those governmental areas that the judgment is to be made as to how much monetary assistance is to be allotted to a welfare recipient. It is not the function of the judiciary.

Eor the foregoing reasons, the decision of the Department is affirmed.