text:
    IN THE MATTER OF THE APPLICATION OF PEOPLES BANK OF RIDGEWOOD FOR A CHARTER FOR A BANK TO BE LOCATED AT 21 NORTH MAPLE AVENUE, IN THE VILLAGE OF RIDGEWOOD, COUNTY OF BERGEN AND STATE OF NEW JERSEY, CITIZENS FIRST NATIONAL BANK OF RIDGEWOOD, OBJECTOR-APPELLANT. [A-1773-68]. IN THE MATTER OF THE APPLICATION FOR A CHARTER FOR PEOPLES BANK OF RIDGEWOOD, TO BE LOCATED AT 21 NORTH MAPLE AVENUE, VILLAGE OF RIDGEWOOD, COUNTY OF BERGEN, NATIONAL COMMUNITY BANK OF RUTHERFORD, APPELLANT, v. HORACE J. BRYANT, JR. COMMISSIONER OF BANKING AND INSURANCE, AND PEOPLES BANK OF RIDGEWOOD, RESPONDENTS. [A-1923-68]
    Superior Court of New Jersey Appellate Division
    Argued February 9, 1970
    Decided February 9, 1970.

      Before Judges Goldman n, Lewis and Matthews.

      Mr. Walter W. Wéber, Jr. argued the cause for appellant Citizens First National Bank of Ridgewood (Messrs. Weber Muth & Weber, attorneys; Mr. LevAs J. 8pitz, on the brief).

      Mr. Richard J. Byan argued the cause for appellant National Community Bank of Rutherford (Messrs. Morrison, Lloyd & Griggs, attorneys).

      Mr. Bennett H. Fishier, Jr. argued the cause for respondent Peoples Bank of Ridgewood (Messrs. MacFall and Fishier, attorneys; Mr. Walter Olenich, on the brief).

      Mr. Arthur J. Sills, Attorney General, filed a statement in lieu of brief on behalf of respondent Commissioner of Banking and Insurance (Mr. Joel L. Shain, Deputy Attorney General, on the brief).
   Per Curiam.

National Community Bank of Rutherford and Citizens Eirst National Bank of Eidgewood appeal from the Commissioner of Banking and Insurance’s approval of an application for a charter by Peoples Bank of Ridgewood.

Peoples Bank of Ridgewood is an affiliate of Peoples Trust of New Jersey. Section 6 of L. 1968, c. 415 (N. J. S. A. 17:9A-3.1) provides that no officer, director or employee of any bank may directly or indirectly be an incorporator of another bank. Chapter 415 was approved January 17, 1969, and section 8 provided that the act was to take effect six months from the date of its approval, i. e.; July 17 (or 18), 1969. The Commissioner approved the charter on July 8, 1969, only a few days before the deadline. Had L. 1968, c. 415, § 6 been effective on July 8, 1969, the Commissioner could not have approved the charter because the incorporators of Peoples Bank of Ridgewood are officers and directors of Peoples Trust of New Jersey. That not being the case here, and all other things aside, the Commissioner could act on the pending application for a bank charter. Cf. Application for Charter for Springfield State Bank, 107 N. J. Super. 230, 233-234 (App. Div. 1969), certif. den. 55 N. J. 312 (January 13, 1970).

The apparent haste with which the Commissioner had to act produced a procedural result we consider to be improper. At the time of the last hearing toward the end of May 1969, the hearing officer noted that he would not submit a report to the Commissioner. N. J. S. A. 17:1—8.8 provides that the Commissioner “may dispense with the preparation of such report and determine the matter upon the record presented, allowing the party or parties to the hearing an opportunity to file briefs or present oral argument prior to his determination.” Despite this language, the objectors were not permitted to file a brief or present oral argument prior to the Commissioner’s determination.

Although the Commissioner could dispense with the hearer’s report and determine the matter on the record of the hearing, he was obliged to give the objectors an opportunity to file briefs or present oral argument. The statute clearly so provides, and due process calls for nothing less. As was said in In re Masiello, 25 N. J. 590, 600 (1958), a fair hearing before an administrative agency means “a hearing of evidence and argument, and judgment thereon.”

Accordingly, we remand this matter to the Department of Banking and Insurance so that the new Commissioner may proceed in the manner set out in N. J. S. A. 17:1-8.8, giving the objectors an opportunity to file briefs or make oral argument. This should be done and the Commissioner make and file his determination with the court within 45 days. The parties will then, within ten days of such determination, file with the court such supplemental briefs as they deem necessary. We retain jurisdiction.

Demanded for further proceedings in accordance with this opinion.


source: Caselaw Access Project

author: Kolovsky, J. A. D.

license: Public Domain

text:
    INTERSTATE WRECKING CO., INC., PLAINTIFF-RESPONDENT, v. PALISADES INTERSTATE PARK COMMISSION, DEFENDANT-APPELLANT, AND CLARKE & RAPUANO, INC., DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued October 14, 1969
    Decided March 3, 1970.

      Before Judges Conpord, Collester and Kolovsky.

      Mr. Julius L. Sackman, Assistant Attorney General of New York, argued the cause for appellant (Mr. Louis J. Leflcowitz, Attorney General of New York, by Mr. Arthur J. Sills, Attorney General of New Jersey, attorney; Mrs. Buth Kessler Toch, Solicitor General of New York; Mr. J. Joseph Murphy, Assistant Attorney General of New York; Mr. Stephen Skillman, Deputy Attorney General of New Jersey, of counsel and on the brief).

      Mrs. Sonia Napolitano argued the cause for plaintiff-respondent (Messrs. Pindw, McFlroy, Connell, Foley & Geiser, attorneys; Mr. Theodore W. Geiser, of counsel).

      Mr. Clifford J. Sheehan argued the cause for defendant-respondent (Messrs. Hueston & Uueston, attorneys).
   The opinion of the court was delivered by

Kolovsky, J. A. D.

Palisades Interstate Park Commission (Commission) appeals on leave granted from an order of the Law Division denying its motion to dismiss the complaint and to quash the service of summons. The Commission contends that the New Jersey courts have no jurisdiction either over the subject matter of the action against it or the person of the Commission. It does not challenge the method of service, here by registered mail.

The Commission had advertised in New York for bids for the work involved in demolishing buildings on Iona Island, Dockland County, preparatory to the development of the island for recreation purposes. The bid of plaintiff, a New Jersey corporation, was accepted and a contract executed. The work was completed; plaintiff was paid the contract price but its claim for extras was rejected.

Plaintiff instituted this action in the Superior Court, Law Division, against the Commission and its engineer Clarke & Dapuano, Inc. which had prepared the pre-bid information and supervised the work under the contract. The first three counts seek to recover from the Commission the reasonable value of extra work done and damages allegedly caused by misrepresentations in the pre-bid information furnished. The last two counts charge the engineer with negligence in preparing the pre-bid information and in supervising plaintiff in the performance of its work.

The Commission was created by an interstate compact between New York and New Jersey (L. 1937, c. 148, now N. J. S. A. 32:17-1 to 13; N. Y. Laws 1937, c. 170) with Congress consenting thereto on August 19, 1937 (Public Resolution No. 65, c. 706, 50 Stat. 719).

The compact provided for the continuation of the parks theretofore managed by separate “Commissioners of the Palisades Interstate Park” in each state as an interstate park and for that purpose created

* * * a body corporate and politic with the name and style of “Palisades Interstate Park Commission’’ * * * which shall be a joint corporate municipal instrumentality of both the state of New York and the state of New Jersey for the purpose of effecting the objects of this compact and which shall be deemed to be performing governmental functions of the two states in the performance of its duties hereunder.
The commission shall have power to sue and he sued, to use a common seal and to make and adopt suitable by-laws. The eommission shall consist of ten members, five of whom shall be citizens and residents of the state of New York and five of whom shall be citizens and residents of the state of New Jersey. For the purpose of doing business the members of the commission shall constitute a board. [Art. II, N. J. S. A. 32:17-4, emphasis added]

The compact further provided:

There are hereby transferred to the commission all of the functions, jurisdiction, rights, powers and duties of the respective state boards, as now prescribed by the laws of the respective states, and the same shall hereafter be exercised and performed by the commission, subject to such modifications thereof as are contained in this compact. [Art. III, N. J. S. A. 32:17-5]

After pointing out that by appropriate legislation the State of New York has waived its own immunity from suit only to the extent of permitting actions against it in its Court of Claims, the Commission urges that the compact provision empowering the Commission to sue and be sued should be construed as embodying only a similar limited waiver of immunity in cases such as this arising from the Commission’s contracts and activities with respect to property in the State of New York.

Such, it argues, is the sense of the statute — although eoncededly there is no express language therein so providing ■—■ and the one which it says the New York courts have uniformly adopted in construing similar language in statutes creating various corporate governmental agencies, citing, inter alia, Glassman v. Glassman, 309 N. Y. 436, 131 N. E. 2d 721 (Ct. App. 1956); Breen v. Mortgage Commission of State of New York, 285 N. Y. 425, 35 N. E. 2d 25 (Ct. App. 1941), and Conklin v. Palisades Interstate Park Commission, 282 App. Div. 728, 122 N. Y. S. 2d 403 (App. Div. 1953). We find no need to analyze and discuss either those cases or other cases decided in New York which cast doubt on the Commission’s claim that New York statutes have uniformly been construed in the manner alleged. See Easley v. New York State Thruway Authority, 1 N. Y. 2d 374, 153 N. Y. S. 2d 28, 135 N. E. 2d 572, 575 (Ct. App. 1956) (dissenting opinion and eases cited therein); R. G. Packard Co. v. Com’rs of Palisades Interstate Park, 240 F. 543 (S. D. N. Y. 1916).

Nor need we be concerned with the interpretation which the courts of New Jersey, the other party to the compact, have given to a grant to a state agency of the “power to sue and be sued.” New Jersey has uniformly construed such a grant as a complete waiver of the State’s immunity from suit with which the agency would otherwise be cloaked, a consent that the agency may be sued as may anyone else (see e. g., Taylor v. New Jersey Highway Authority, 22 N. J. 454, 466 (1956)), although not a waiver of immunity from liability where such immunity exists. Cf. Stephens v. Com’rs of Palisades Interstate Park, 93 N. J. L. 500 (E. & A. 1919).

For it is neither a New York nor a New Jersey statute which is being construed; it is an interstate compact approved by Congress. The law of neither state is therefore controlling; the federal law is.

The interpretation and construction of an interstate compact sanctioned by Congress by virtue of Art. I, § 10, cl. 3 of the United States Constitution is a matter of federal law; it involves a “federal ‘title, right, privilege, or immunity.’ ” Delaware River Joint Toll Bridge Comm’n v. Colburn, 310 U. S. 419, 427, 60 S. Ct. 1039, 1041, 84 L. Ed. 1287 (1940); Petty v. Tennessee-Missouri Bridge Comm’n, 359 U. S. 275, 279, 79 S. Ct. 785, 788, 3 L. Ed. 2d 804 (1959).

The federal law — the decisions of the United States Supreme Court — has consistently construed unrestricted language granting a governmental agency the power “to sue and be sued” as a complete waiver of what would otherwise be the agency’s immunity from suit, and this whether the language is found in an act of Congress creating a federal agency, see Keifer & Keifer v. Reconstruction Finance Corp., 306 U. S. 381, 59 S. Ct. 516, 83 L. Ed. 784 (1939), or in an interstate compact. Petty v. Tennessee-Missouri Bridge Comm’n, supra. This result was reached in Petty even though each of the contracting states would not have so construed that language.

The Commission would discount Petty as authority because only three of the justices agreed in full with the majority opinion, the three concurring justices preferring not to reach the constitutional question of “whether the Eleventh Amendment immunizes from suit agencies created by two or more states under state compacts which the constitution required to be approved by Congress.” However, Petty’s ruling that federal law determines whether an interstate compact embodies a waiver of the contracting states’ immunity from suit was approved five years later in Parden v. Terminal Railway of Ala. State Docks Dept., 377 U. S. 184, 196, 84 S. Ct. 1207, 1215, 12 L. Ed. 2d 233 (1964).

It is therefore clear that the compact provision granting the Commission “power to sue and be sued” authorizes the maintenance of this transitory action for damages against the Commission in this State unless, as the Commission also contends, other provisions of the compact should be construed as a mandate that the action be brought only in New York.

The Commission argues that such a mandate is to be implied from the following language in Article III (N. J. S. A. 32:17-5):

Either the state of New York or the state of New Jersey may by law applicable to parks or park commissions generally within such state, or by law specifically applicable to the commission or to any of the parks within such state under its jurisdiction, and without the concurrence of the other state, withdraw, modify, alter or amend any of the functions, jurisdiction, rights, powers and duties transferred to the commission by this article or confer additional functions, jurisdiction, rights, powers and duties on the commission, but such action by one state shall be effective only within the territorial limits of such state. The commission shall also have such additional functions, jurisdiction, rights, powers and duties as may be conferred upon it by both states,

and from Article IV(4) (N. J. S. A. 32:17-6(4)), which reads:

Each slate may by legislation make rules and regulations for the use and government, including regulation of traffic, of such portions of the park as lie within the boundaries of the state, and such parts of any state, county or other public highways as lie within the limits of such portions of the park, and all lands, parks and parkways in the state under the jurisdiction of the commission, prescribe the penalty or penalties for violation of any such rules or regulations, prescribe the procedure for enforcement of any such penalty or penalties and provide the court or courts in which any such enforcement is to be sought.

However, each state may exercise the powers so granted to it only by “law,” by “legislation.” Even if we assume that the quoted sections of the compact would permit New York to enact a law requiring actions of the kind here involved, actions against the Commission arising from contracts for work done in New York State, to be brought only in that state, there is no such legislation. We, as a court, may not usurp the power granted by the compact only to the New York legislature.

It is irrelevant to the question here presented that, as the Commission notes, its employees who are employed in that state are members of New York State’s pension system and subject to its workmen’s compensation laws, and that its New Jersey employees are members of this State’s retirement system and subject to its workmen’s compensation law. Those pension and employee provisions exist because legislation so providing has been adopted in the respective states (N. J. S. A. 32:14-4; New York Conservation Law § 746 (McKinney’s Consol. Laws, c. 65, 1963)) pursuant to the quoted power granted to each.

Finally to be considered is the fact that the contract involved in this litigation recites that it was entered into between plaintiff and “Palisades Interstate Park Commission acting for and in behalf of the State of New York,” and the additional fact that the moneys for payment of the contract price were given to the Commission by the State of New York. Those facts could be significant with respect to the merits of the action if the Commission were to contend, when it files its answer, that it contracted only as an agent for a disclosed principal; they in nowise affect the New Jersey court’s jurisdiction over the person of the Commission or the court’s power to adjudicate the subject matter of the litigation, the Commission’s alleged liability to plaintiff.

The order denying the Commission’s motion to dismiss the complaint and to quash service of summons upon it is affirmed.


author: Lewis, J. A. D.

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. CLIFFORD MORSE, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued December 15, 1969—
    Supplemental Material December 17, 1969 and December 23, 1969—
    Decided March 3, 1970.

      Before Judges G-oldmann, Lewis and Matthews.

      Mrs. Martha K. Kwitny argued the cause for appellant (Mr. Stanley 0. Van Ness, Public Defender, attorney; Mrs. Rosemary Reavey, Assistant Deputy Public Defender, of counsel and on the brief).

      Mr. Arthur J. Tim,ins. Assistant Prosecutor, argued the cause for respondent (Mr. Leo Kaplowitz, Union County Prosecutor, attorney; Mr. Peter L. Korn, Assistant Prosecutor, on the brief).
   The opinion of the court was delivered by

Lewis, J. A. D.

The Union County grand jury returned five indictments, each containing two counts, the first count charging defendant with obtaining money by false pretenses, N. J. S. A. 2A:111-1, and the second charging him with uttering a worthless check, N. J. S. A. 2A:111—15. He pleaded guilty to each of the offenses and was sentenced on December 6, 1968 to a State Prison term of 1-2 years on each of the first counts and one year on each of the second. In the case of four of the five first counts, the terras were to run consecutively. The terms on the fifth first count and the five second counts were all designated to run concurrently to the sentences already imposed. The judge also imposed a suspended sentence for violation of a five-year probation term which had been ordered in September 1965, when defendant pleaded guilty to 20 accusations of uttering worthless checks. That probation, determined by another sentencing judge after having the benefit of an extensive presentence report, was in lien of State Prison sentences totalling not less than five nor more than ten years.

Defendant’s motion for reconsideration of the more recent sentence having been denied, he appeals, claiming that (1) the total sentence of 4— 8 years was excessive and (2) it was entered upon an inadequate presentence investigation report. We pass this later point summarily since an examination of the 1965 and 1968 presentence reports and defendant’s probational history, which were before the sentencing judge together with a letter from defendant’s wife, plainly reveal all the information necessary for a judicial consideration of the total circumstances. See State v. Kunz, 55 N. J. 128, 132 (1969).

The critical issue on this appeal is raised by the Public Defender in a memorandum, supplementing his original brief, wherein it is argued that the total sentence imposed upon defendant was illegal in that defendant was indicted, convicted and sentenced for obtaining money by false pretenses under N. J. S. A. 2A:111—1, when the criminal acts charged were encompassed by the more specific statute dealing with the overdrawing of checking accounts, N. J. S. A. 2A:111-15. We direct our attention to that issue although it was not raised below. R. R. 1:5—1 (a) and R. R. 2:5, now R. 2:10-2. See also State v. Terwilliger, 49 N. J. Super. 149 (App. Div. 1958).

N. J. S. A. 2A:111-15 declares:

Any person who * * * with intent to defraud, makes, draws, utters or delivers a check, draft or order for the payment of money in an amount of $200.00 or more, upon any bank or other depository, knowing at the time of so doing that the maker, or drawer, has no funds or insufficient funds * * * for the payment of such instrument, in full, upon its presentation 4 4 4 is guilty of a misdemeanor and shall be punished by a fine of not more than $1000.00, or by imprisonment for not more than 1 year, or both.

N. J. S. A. 2A:111-1 is more general, and has within its prohibitory ambit the utterance of a worthless check regardless of the amount. The language here pertinent reads:

Any person who, knowingly or. designedly, with intent to cheat or defraud any other person, obtains any money * * * by means of false promises, statements, representations, tokens, writings or pretenses, is guilty of a misdemeanor.

The penalty for such a misdemeanor shall be punishment “by a fine of not more than $1,000, or by imprisonment for not more than 3 years, or both.” N. J. S. A. 2A:85-7.

Defendant admittedly issued five checks, each in the amount of $200 or more. He was, nevertheless, indicted, convicted and sentenced on ten counts. If the instant statutes defined two distinct offenses, the State would have the prerogative to proceed under either or both of them. State v. Reed, 34 N. J. 554, 572-573 (1961). Such would be the case where the nature and character of the proofs to sustain com viction, as well as the penalties, are dissimilar. State v. White, 105 N. J. Super. 234, 235 (App. Div. 1969), certif. den. 54 N. J. 242 (1969); State v. Drake, 79 N. J. Super. 458, 463 (App. Div. 1963).

This case, however, is one that involves overlapping statutes, necessitating reference to the entire regulatory scheme of which they form a part. Cf. Modern Industrial Bank v. Taub, 134 N. J. L. 260, 263 (E. &. A. 1946). In situations where two criminal statutes prohibit the same aot, we adhere to the inveterate principle that statutes must be read in a manner most favorable to the accused. 3 Sutherland, Statutory Construction (3d ed. 1943), § 5604, p. 49; Bell v. United States, 349 U. S. 81, 83, 75 S. Ct. 620, 99 L. Ed. 905 (1955); State v. Brillo Mfg. Co., 63 N. J. Super. 287, 295 (App. Div. 1960). Moreover, it has been held that any conflict between a general and a specific statute covering a subject in a more minute and definitive way should be resolved by considering the latter as prevailing over the former as an exception to it. Clifford F. MacEvoy Co. v. United States, etc., 322 U. S. 102, 107, 64 S. Ct. 890, 88 L. Ed. 1163 (1944); United States v. Tiplitz, 105 F. Supp. 512, 513-514 (D. N. J. 1952), appeal dismissed 202 F. 2d 60 (3 Cir. 1953); State by State Highway Com'r v. Dilley, 48 N. J. 383, 387 (1967); State v. Hotel Bar Foods, Inc., 18 N. J. 115, 128 (1955); Ackley v. Norcross, 122 N. J. L. 569, 572 (Sup. Ct. 1939), aff’d o. b. 124 N. J. L. 133 (E. & A. 1940).

We view State v. Bott, 53 N. J. 391 (1969), as persuasive and controlling. There, our Supreme Court held that the crime of receiving a stolen automobile, N. J. S. A. 2A:139-3, was a distinct crime from that of receiving stolen goods generally, N. J. S. A. 2A:139-1. The broad omnibus statute had been in force since at least 1796, and the specific statute was enacted in 1921 “to abate the theft of automobiles and their purchase by some person or persons knowing the same to have been stolen.” 53 N. J., at 398. The court declared that the later statute was enacted because the Legislature recognized a “special evil” associated with receiving stolen motor vehicles. Id., at 399.

The source of the instant omnibus statute (N. J. S. A. 2A:111—1) is L. 1898, c. 235, § 202, p. 851. The specific statute (N. J. S. A. 2A:111-15) was adopted 21 years later. L. 1919, c. 72, § 1, p. 133. There is a logical and rational inference that, since the source of the more specific legislation was later in time, it was passed to remedy a singular and persistent problem which the Legislature reasoned it had inadequately dealt with earlier. See McCaffrey, Statutory Construction, § 81, p. 167 (1953). Cf. State v. Hotel Bar Foods, Inc. supra, 18 N. J., at 128; State v. Fary, 16 N. J. 317, 323 (1954). Noting the magnitude and uniqueness of check frauds (see O’Malley, “Common Check Frauds and the Uniform Commercial Code, 23 Rutgers L. Rev. 189 (1969)), and that the elements of the crime of obtaining money under false pretenses, as alleged here, and uttering a worthless check are identical, we conclude that the Legislature consciously and deliberately intended that one uttering a worthless cheek in an amount greater than $200 should be indicted under the specific statute and not the more general one that had been previously enacted.

“A man cannot suffer more punishment than the law assigns, but he may suffer less." 1 Blackstone, Commentaries 92 (Lewis ed. 1922). See e.g., State v. Bess, 53 N. J. 10, 19 (1968); cf. State v. Ellis, 26 N. J. L. 219 (Sup. Ct. 1857), see also State v. Bell, 55 N. J. 239 (1970).

Accordingly, the convictions under the omnibus statute,' N. J. S. A. 2A:111-1, are vacated, and the matter is remanded to the trial court for resentencing on the conviction of five counts of uttering worthless checks under N. J. S. A. 2A:111-15.


author: Matthews, J. A. D.

text:
    CITY OF NEWARK, A MUNICIPAL CORPORATION OF NEW JERSEY, PETITIONER, v. DEPARTMENT OF HEALTH OF THE STATE OF NEW JERSEY, NORTH JERSEY DISTRICT WATER SUPPLY COMMISSION, TOWN OF KEARNY, BOROUGH OF GLEN RIDGE, TOWN OF BLOOMFIELD, TOWN OF MONTCLAIR, CITY OF PASSAIC, CITY OF PATERSON, CITY OF CLIFTON AND PASSAIC VALLEY WATER COMMISSION, RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued November 3, 1969
    Decided March 4, 1970.

      Before Judges Goedmann, Lewis and Matthews.

      Mr. 8am Weiss, Assistant Corporation Counsel, argued the cause for petitioner (Mr. Philip E. Gordon, Corporation Counsel of the City of Newark, attorney).

      Mr. Theodore A. Schwartz, Deputy Attorney General argued the cause for respondent Department of Health (Mr. Arthur J. Sills, Attorney General, attorney; Mr. Stephen Slcillman, Deputy Attorney General, of counsel).

      Mr. Oscar R. Wilensky argued the cause for respondent North Jersey District Water Supply Commission.

      Mr. Newton M. Roemer argued the cause for respondent Passaic Valley Water Commission.
    Respondents Town of Kearny, Borough of Glen Ridge, Town of Bloomfield and Town of Montclair did not file briefs.
    Respondents City of Clifton, City of Paterson and City of Passaic did not file briefs but rely on the arguments of respondent Passaic Valley Water Commission.
   The opinion of the court was delivered by

Matthews, J. A. D.

This matter is before the court on a petition for a declaratory judgment filed by the City of Newark pursuant to R. R. 4:88-10 (now R. 2:2-3 (a) (2), 2:5-1(c)) at the direction of Judge Mountain of the Chancery Division. In the petition the city seeks to challenge the validity of certain rules and regulations promulgated by respondent Department of Health of the State of New Jersey (Department) dealing with potable water standards, and a departmental order issued January 24, 1966 to respondent North Jersey District Water Supply Commission (North Jersey District).

Originally, the Department instituted an action in the Chancery Division seeking a mandatory injunction which would require the North Jersey District to effect immediate compliance with the January 24, 1966 order issued by the Department pursuant to the provisions of N. J. S. A. 58:11-1, et seq. That order required the North Jersey District' to improve, add to or alter, before January 1, 1968, the water treatment plant located at the Wanaque reservoir which is owned and operated by it, to the end that the water contained therein should be purified in a manner approved by the Department, prior to its being distributed for potable and culinary purposes. In the Chancery Division action the Department took the position that the water collected and stored in the Wanaque reservoir and distributed to various municipalities failed and continues to fail to meet the standards of purity and potability that have been promulgated by it.

The North Jersey District filed an answer to the complaint which did not dispute the validity or legality of the order issued by the Department. It did point out, however, that it had no funds to effect construction of a filtration and purification plant of the size required under the Department’s order, and, in addition, that it did not have the statutory authority to raise funds for this purpose by issuing bonds or otherwise. The answer also alleged that in order for the North Jersey District to comply with the Department’s order it would be necessary for it to obtain the financial backing from its constituent municipalities which receive potable water from its Wanaque reservoir. To this end, the North Jersey District sought and was granted leave to file a third-party complaint against its constituent municipalities and the Passaic Valley Water Commission.

The third-party defendants all filed answers and raised certain defenses, two of which are involved in this proceeding:

1. The potable water standards that have been promulgated by the Department and upon which its order of January 24, 1966 is based, exceed the authority of the Department as delegated to it by the Legislature and therefore, as administrative regulations, are invalid;
2. The aforementioned order of the Department is further invalid because (a) it was adopted and issued without a preliminary hearing being afforded either the North Jersey District or any of the constituent municipalities, and (b) it cannot be considered effective as against the various third-party defendants since they are not named in the order and it is not directed to any of them.

The constituent municipalities which now receive all or part of their potable water supplies from the Wanaque reservoir maintained and operated by the North Jersey District include Bloomfield, Clifton, Glen Ridge, Kearny, Montclair, Newark, Passaic and Paterson. Clifton, Passaic and Paterson actually obtain their proportionate share of this water supply through the instrumentality of the Passaic Valley Water Commission (Passaic Valley) through whose facilities it is transmitted by the North Jersey District.

After all of the aforementioned pleadings had been filed in the Chancery Division, the trial judge reached the conclusion that some of the questions raised in the answers to the third-party complaints, specifically those mentioned above, should be passed upon by this court under the provisions of the rules mentioned above. He directed counsel for the third-party defendants to initiate, -within 20 days from the date of his determination (December 9, 1968), “an independent plenary action in the Appellate Division under R. R. 4:88-10 and 4:88-8 for the purpose of securing a prompt review of the validity of the applicable regulations of the State Department of Health and its ensuing order.” The trial judge also directed that, pending determination of the action instituted in this court, the Chancery Division action would remain in •status quo. Bloomfield, Glen Ridge, Kearny and Montclair have not filed briefs in this action and have notified us that they will abide by whatever decision is made. Clifton, Passaic and Paterson have not filed independent briefs, and have informed us that they adopt the position taken by Passaic Valley in its brief. The Department, the North Jersey District and Newark have filed briefs.

THE POTABLE WATER STANDARDS

Only Newark questions the validity of the potable water standards issued by the Department. In doing so it contends that the standards are “illegal and void and beyond the power of the Department and that the Department is without power to order the highly expensive filtration of the water in the Wanaque watershed solely by reason of said water containing miniscule percentages of iron and manganese faintly affecting coloration merely, and not at all affecting public potability and health.”

The standards questioned here are contained in the potable water standards promulgated by the Department and filed with the Secretary of State on August 21, 1967, to be effective October 1, 1967. The standards challenged provide, in relevant part:

3.1 Water intended for potable purposes shall not contain impurities in concentrations which may be hazardous to the health of the consumer or be corrosive to the water supply system. Substances used in this treatment shall not remain in the water in concentrations greater than required by good practice. Substances which may have a deleterious physiological effect, or for which physiological effects are not known, shall not he introduced into the system in a manner which would permit them to reach the consumer.
3.2 Physical Characteristics
The physical characteristics of water intended for potable purposes shall not exceed the following limits:
a. Turbidity—not to exceed 5 part per million (Milligrams per Liter) (silica scale).
b. Color—not to exceed 10 units (standard cobalt scale).
c. Taste—the water shall have no objectionable taste. ****$$*$<
3.3 Chemical Characteristics
* :? * * % $ * *-
b. The following chemical substances should not be present in a water intended for potable purposes in excess of, or (where applicable) below, the listed concentrations. Their presence may constitute grounds for the rejection of the supply if, in the opinion of this Department, such substances, either singly or in combination, are present in such concentrations as would render the water unduly corrosive, unpalatable, hazardous to the consumers or aesthetically objectionable.
Substance Recommended Concentration Maximum Minimum
* * *
Iron (Fe) * 0.3 ppm (Mg/L)
Manganeso (Mn) * 0.05 "
* * * * S * * :5"
4.1 Water intended for potable purposes shall be free from:
a. Visible organisms such as algae, algae diatoms, crustaceans, arachnids, and larvae.
b. Those micro-organisms which render the water unpalatable, or unaesthetic to the consumer.

The record before ns discloses that present treatment methods at Wanaque are comprised of rough screening, p h. adjustment by lime, and disinfection by ammonia and chlorine. There is no treatment to reduce turbidity (i. e., flocculation and sedimentation ), no filtration to provide a barrier against the ingress of particulate, organic and biological matter into the distribution system, and no treatment to remove the manganese in the system. We are informed that manganese is a prime cause of dirty or black water complaints; when present in the system, even in small concentrations, it has the effect of slowly oxidizing and depositing on the interior of the aqueducts and distribution systems.

It should also be observed that the Wanaque reservoir receives waters containing effluents from seven sewage treatment plants.

The Department has made various inspections of the North Jersey District facilities and, as required by N. J. S. A. 58:11-12, the North Jersey District has furnished monthly operating reports and other related information to the Department. These monthly reports contain detailed laboratory analyses of North Jersey District water sampled at various points. The charts plotted from the monthly reports which are before us indicate that the water supplied by the North Jersey District does not meet the potable water standards, set forth above, in the categories of color, turbidity and manganese. In addition, the reports disclose that there were algae present which were significant in the production of taste and odors. Turbidity was equal to or worse than the standards in 24% of the reported cases; color, in 37% of the eases; and the average manganese level was .11 ppm., or twice the recommended maximum. The North Jersey District was requested to advise the Department of its plans for more effective treatment. During mid-1965 the North Jersey District said it would study the situation. In late 1965 the United States Public Health Service downgraded the water supply in question from “approved” to “provisionally approved” and urged that definite plans for complete treatment be initiated within one year. The order before us ensued.

On Eebruary 17, 1966 the North Jersey District wrote the Department that the Commission’s constituent municipalities had met to consider the January 1966 order and that a committee had been formed to prepare a preliminary report for a filter plant to correct the situation. On March 7, 1966 the North Jersey District reported to the Department that all constituent municipalities concurred with the conclusion that additional treatment of the Wanaque water was necessary to comply with the potable water standards. Various alternatives were listed.

On December 15, 1966 the Department received a letter and report from the North Jersey District, the report indicating that the engineers of the Wanaque constituents had met and that they “recognized” that all of the Wanaque water must receive additional minimum treatment in the form of filtration. Then, on March 2, 1967, the North Jersey District informed the Department that it had entered into a contract with Havens and Emerson, consulting engineers, to prepare a study and report for the required filtration plant. The Havens and Emerson report was filed in December and accepted by the Department on February 1, 1968.

It was not until March 15, 1968 that Newark indicated that it would not go along with the Department. It advised that it would not approve the filtration plant, site, location and costs, as set out in the report, and based upon studies and recommendations made by its constituents the city would proceed with its filtration for the treatment of Newark’s Wanaque allotment at its Belleville reservoir. We note that Newark did not question the need for filtration, but for some reason, the soundness of which escapes us, decided to go it alone. We also observe that it was not until Newark filed its answer in the Chancery Division action that any question was raised as to validity of the potable water standards and the power of the Department to promulgate them.

The safeguard of public health is an essential function of government and is of primary concern to the social order. Borough of West Caldwell v. Borough of Caldwell, 26 N. J. 9 (1958); Department of Health v. Owens-Corning Fiberglas Corp., 100 N. J. Super. 366 (App. Div. 1969), aff’d 53 N. J. 248 (1969). Without question, the State has the power, and it is its duty, to control and conserve the use of its water resources for the benefit of all its inhabitants. City of Trenton v. New Jersey, 262 U. S. 182, 43 S. Ct. 534, 67 L. Ed. 937 (1923).

Our Legislature created the Department of Health to protect and preserve the public health and welfare of the people of New Jersey. In furtherance of this goal the Legislature has provided it with broad powers in the area of public health. In an effort to insure that the public shall receive water which is of sufficient quality, potability, wholesomeness and purity, and to protect sources of water supply, the Legislature has provided the Department with comprehensive and specific powers to supervise all sources of water supply and the operation of treatment plants and distribution systems. For example, N. J. S. A. 58:11-1 provides:

No person engaged in the distribution or sale of water for potable purposes shall deliver to any consumer any water which, in the opinion of the state department of health, hereinafter in this chapter designated as the “department,” is polluted, contaminated or impure, or which is obtained from any source which, in the opinion of the department, is or may become polluted, contaminated or impure, unless purification by filtration or other means acceptable to the department shall be accomplished before the water is distributed.

And N. J. S. A. 58:11-4 provides, in part:

The department shall have the supervision of the operation of all water plants with respect to the purity of the supply of potable water furnished thereby, and every person furnishing water for potable use shall comply with any and all orders of the department relating to the purity of such waters. * * *

Newark would have Department regulations confined to matters of public health and would have us read these statutes as centering upon potability rather than purity. Indeed, it argues that the jurisdiction of the Department in the premises is based solely on potability. No persuasive authority is given us for this position. Pursued to its extreme, Newark’s argument based on public health would leave us with drinking water not demonstrably injurious to human life, but having characteristics that would make it distasteful because of color, odor, flocculation and the like. We cannot admit of such a result. Water may be used for many purposes, including drinking, cooking and personal cleanliness. The standards promulgated certainly can address themselves to the elements which touch upon such uses.

N. J. S. A. 58:11-4 cannot, of course, be read in a vacuum. It must be read in pari materia with all of the statutes which give powers to the Department relating to water supply. For example, under N. J. S. A. 58:11-2, no person may furnish any water for potable purposes until the source has been approved by the Department; N. J. S. A. 58:11-3 requires prior approval by the Department before a water treatment plant can be constructed or operated for the purification of waters intended for potable uses; under N. J. S. A. 26:1A—31 (i) the Department is empowered to “make and enforce rules and regulations concerning plans and specifications for the construction, improvement, alteration or operation of all public water supplies * * *”; N. J. S. A. 26:2-65 requires the Department to fix standards of quality for any waters used or available for use for drinking or culinary purposes or for the cleansing of utensils used in preparing or serving food or drink for public consumption. The nature of these statutory powers is such that it must be concluded that the Department is not required to wait until actual contamination of water supplies is shown to exist. It is the duty of the Department to provide reasonable safeguards against foreseeable dangers of their contamination.

When dealing with statutes which promote public health, safety and welfare, courts traditionally apply a lib-era] construction with respect to supervisory and regulatory powers—and this is certainly so with regard to water meant for human uses. It is the duty of courts to see that such enactments achieve their beneficent purpose. The potable water standards questioned here provide the criteria upon which water distributors can rely to insure that the public is receiving water that is wholesome, pure, potable and of good quality. They comprise technical standards that have been adopted by an agency possessing specific expertise and which is therefore qualified to pass judgment on such matters as quality, wholesomeness, purity and potability. Moreover, the record before us demonstrates that the standards in question are in conformity with those adopted by the United States Public Health Service, and that the American Water Works Association, the national association of water purveyors, not only has endorsed the United States Public Health drinking water standards but has recommended standards more stringent.

The standards promulgated are demonstrative, legislative acts. The only test to be applied here is whether such acts are reasonably related to the end sought to be achieved, and whether that end was in the power of the Legislature to achieve. We do not have the slightest hesitation in finding that the standards questioned meet that test. The burden is on petitioner to establish that' they do not. Consolidation Coal Company v. Kandle, 105 N. J. Super. 104 (App. Div. 1969), aff’d o.b. 54 N. J. 11 (1969). We conclude that the Department’s regulations are valid and a proper method of promulgating orders regarding the purity of water pursuant to a clear exercise of the police power by the Legislature in N. J. S. A. 58:11-4.

THE ORDER OP JANUARY 24, 1966

The attack on the order promulgated by the Department on January 24, 1966 is based principally on the fact that it was adopted and issued without a hearing. Passaic Valley argues that the order has deprived it of the opportunity to be heard as to which engineering techniques should be applied in treating the water. It points out that it has been using pressure filtration, and that the position of the Department in rejecting pressure filtration is arbitrary and ignores the satisfactory condition of Passaic Valley’s water supply. It also argues that its customers will be subjected to great expense in the construction of the new filtration plant. ‘It claims that its water presently meets the potable water standards of 1967. At another point in its brief, it alternatively argues, with engineering support, that with certain modifications its existing plant would meet the potable water standards.

We note that under the Department’s plan, Passaic Valley will be compensated for the partial shutting down of its facilities. However, whether Passaic Valley’s treatment is adequate, whether the particular plan settled on by the Department is so economically unsound as to render the shutting down of the Passaic Valley plant an arbitrary taking without just compensation, or indeed whether Passaic Valley will be compelled to join in the construction of the new plant in substitution of its own facility, are matters to be dealt with at the plenary hearing in the Chancery Division.

The Department’s order was merely to the North Jersey District to construct facilities to bring the Wanaque water into conformity with the 1967 standards. That order was a legislative action taken by an administrative agency. It was not a gwasi-judicial action and clearly did not require a hearing. Indeed, N. J. S. A. 58:11-4, under which the order was issued, does not require a hearing. Cf. State Board of Milk Control v. Newark Milk Co., 118 N. J. Eq. 504 (E. & A. 1935); Jamouneau v. Harner, 16 N. J. 500, 522 (1954).

We have passed over the procedural questions raised by the Department relating to the timeliness of the challenges asserted here, preferring to deal with the merits because of the importance of the questions raised to the general public.

For the foregoing reasons, we sustain the validity of the standards and regulations mentioned above and the issuance of the order in question. The matter is remanded to the Chancery Division to proceed with the plenary hearing. No costs.


author: Fusco, J. S. C.

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. CHARLES A. HOLMES, DEFENDANT-PETITIONER.
    Superior Court of New Jersey Law Division
    Decided February 11, 1970.

      Mr. William A. Walley, assigned counsel, for Defendant.

      Mr. Anthony M mi one, Assistant Prosecutor for plaintiff (Mr. Joseph P. Lords, Essex County Prosecutor, attorney) .
   Fusco, J. S. C.

This is an action for post-conviction relief brought by defendant under R. 3:22-2 and presenting a substantial question of constitutional law.

Defendant was sentenced by this court on October 3, 1968 to three to five years in State Prison, with credit for 133 days served, on a charge of entry with intent to steal, a sentence subsequently modified to two to three years. At the time he was arrested for that crime, defendant was on parole from Bordentown. Eeformatory (a chronology follows, infra). Defendant alleges that his 14th Amendment rights were violated by the method employed by the State Parole Board in notifying him of his violation of parole from Bordentown. This presents an issue which appears not to have been heretofore litigated in this manner in this State.

Because of the nature of these proceedings, the relevant chronology of defendant’s record is set forth.

On May 13, 1965 defendant was sentenced to State Prison for two to three years on charges of attempting to obtain narcotics by false prescriptions and of uttering false prescriptions. The custodial sentence was suspended and one year’s probation imposed by the Essex County Court.

On November 3, 1966 he violated probation. Probation was vacated and he was sentenced to Bordentown for a minimum of two years.

On December 12, 1967 defendant was paroled'from Borden-town. His maximum expiration date of parole was set as November 14, 1968.

On May 25, 1968 he was arrested for entering with intent to steal.

On May 25, 1968 it is alleged, defendant was declared delinquent on his parole.

On July 25, 1968 he pleaded guilty to the entry charge before this court.

• On August' 14, 1968, it is alleged, defendant’s parole was revoked.

On October 3, 1968 he was sentenced to three to five years in State Prison, with credit for 133 days served on the entry charge.

On December 2, 1968 this court modified that sentence to two to three years.

Defendant alleges that he received from the State Parole Board on December 20, 1968 a notice of parole delinquency dated May 25, 1968, and a declaration of revocation of parole dated August 14, 1968. He notes that May 25, 1968 is a Saturday, a day on which, he claims, parole boards never meet. It is also the day on which he was arrested for the entry charge on which this court ultimately sentenced him.

No evidence has been presented by the State or by the Parole Board to refute defendant’s allegations, although the State relies on Roman v. N. J. State Parole Board, 104 N. J. Super. 222 (App. Div. 1968), as authority to deny defendant’s sought-for relief.

N. J. S. A. 30:4-123.23 states:

* * * Prior to revoking the parole of any prisoner, the Board may declare him to be delinquest on parole and shall notify him of this fact and of the reasons for the proposed revocation and may, * * * permit him an opportunity to appear before the board and show cause why his parole should not be revoked. (Emphasis added)

and N. J. S. A. 30:4-123.29 reads:

Whenever * * * the board desires to give notice to the parole of a declaration of delinquency [or] revocation of parole, *• * * the board shall be deemed to have given sufficient notice thereof to the parolee by mailing a copy of such document to him at his last known post-office address.

Adequate notice is a due process right within the 14th Amendment. Mullane v. Central Hanover Bank, 339 U. S. 306, 70 S. Ct. 652, 94 L. Ed. 865 (1949). It is well established that prisoners do not lose all their constitutional rights and that the due process and equal protection clauses of the 14th Amendment “follow them into prison and protect them there.” Jackson v. Godwin, 400 F. 2d 529, 532 (5 Cir. 1968); Washington v. Lee, 263 F. Supp. 327, 331 (M.D. Ala. 1966), aff’d per curiam, 390 U. S. 333 (1968), 88 S. Ct. 994, 19 L. Ed. 2d 1212.

In this State the minimal requirements of due process of law include reasonable notice of the nature of the proceedings and a fair opportunity to be heard therein. Fantony v. Fantony, 36 N. J. Super. 375, 378 (Ch. Div. 1955), modified on other grounds, 21 N. J. 525 (1956). There is no hearing when the affected party has not the means of knowing what evidence is offered and is not afforded an opportunity to test, explain or refute it. A finding without notice and evidence is arbitrary and baseless. I. C. C. v. Louisville & N. R. Co., 227 U. S. 88, 33 S. Ct. 185, 57 L. Ed. 431 (1912). “[The state parole board] may revoke parole on such evidence as it determines is reasonable unless such action is arbitrary or capricious.” Dunn v. California Dept. of Corrections, 401 F. 2d 340, 342 (9 Cir. 1968).

The Federal statute, 18 U. S. C. A. § 4207, analagous to N. J. S. A. 30:4-123.23, reads, in part:

A prisoner retaken upon a warrant issued by the Board of Parole shall be given an opportunity to appear before the Board. * * *

If this statutory right is denied, then “due process has been violated and the court is empowered to grant relief.” Cotner v. U. S., 409 F. 2d 853, 856 (10 Cir. 1969); Boddie v. Weakley, 356 F. 2d 242 (4 Cir. 1966). Under this same statute, an accused parole violator should be presented within a reasonable time, not only to respond to the charges against him but to attempt to convince the board that notwithstanding the violation, his parole should be continued under the same or other terms. United States ex rel. Hitchcock v. Kenton, 256 F. Supp. 296 (D. C. Conn. 1966).

It appears, therefore, that there is a constitutional due process right to notice and a statutory right of notice of parole revocation hearings; that a citizen’s status as prisoner does not deprive him of his due process rights, and that, in federal eases involving a statute similar to the state statute for these purposes, statutory violation by-the parole board was considered a due process violation where proper hearing and notice were not afforded.

It is apparent in the instant case that there was no opportunity to be heard when defendant was not notified until after the alleged revocation and delinquency dates, and that the action by the Parole Board in this matter was arbitrary and capricious. As far as this court is aware, there has to this date been no hearing at which defendant could rightfully present himself to respond to the charges and convince the Board of his right to further parole. Cf. United States ex rel. Hitchcock v. Kenton, supra.

Under the state statute of notice to prisoners, N. J. S. A. 30:4-123.29, regular mail is considered appropriate. The notification itself, however, must still be effectuated in such time as to give the petitioner a fair opportunity to be heard. Fantony v. Fantony, supra.

As noted above, the State relies on Roman, supra, for the proposition that irregularities in Parole Board notices are “irrelevant” to the court. 104 N. J. Super, supra, at 224. That case is distinguishable from the instant case in that (1) it involved sentences in two states, not two New Jersey sentences: (2) the due process issue was not considered there in connection with these statutes, and (3) there was an explanation by the State as to the alleged irregularity in the Parole Board’s documents, an explanation entirely lacking here.

Under these circumstances, defendant cannot be deemed to have received sufficient notice until December 20, 1968, when the letter from the Parole Board actually reached him. This date, it will be noted, is after the maximum expiration date of the parole of November 14, 1968.

Since due process was violated, the revocation cannot stand. On this sole ground, the matter will be remanded to the Parole Board for a hearing on the notices dated May 25, 1968 and August 14, 1968. At this hearing it will be determined whether notice was given in accordance with the statute and the constitutional requirements. If it is determined that adequate notice was given, it will be determined whether there were sufficient grounds for revocation, giving defendant the right to show cause why parole should not have been revoked.

The case will be so remanded.


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

text:
    RICHARD TOLAND, PLAINTIFF-APPELLANT, v. ATLANTIC GAHAGAN JOINT VENTURE DREDGE NO. 1, ET ALS., DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division.
    Argued February 16, 1970
    Decided March 6, 1970.

      Before Judges Kilkenny, Labrecque and Leonard.

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

      Mr. Peter A. Piro argued the cause for respondents (Messrs. Haskins, Robottom & Hack, attorneys).
   The opinion of the court was delivered by

Kilkenny, P. J. A. D.

Plaintiff appeals from a summary judgment entered in favor of defendant on July 28, 1969. The effect of this judgment was to dismiss plaintiff’s suit to' recover damages under general maritime law and under the Jones Act, 46 U. S. C. § 688. In ordering summary judgment in favor of defendant, the trial court ruled that an award of compensation to an injured seaman-employee under New Jersey’s Workmen’s Compensation Act precluded his pursuing his rights under general maritime law and under the Jones Act against his shipowner-employer in the New Jersey court. The propriety of that decision is the issue on this appeal.

Plaintiff’s three-count complaint in the Superior Court, Law Division, filed on July 14, 1967, alleged that on July 22, 1965, while in the employ of and with the consent of defendants, he was required to and did work in and about a “vessel” known as Dredge No. 1, which was “owned, chartered, repaired, controlled, managed and/or maintained by the defendants.” While performing his duties on board this vessel, he was injured solely by reason of the negligence of defendants and their seamen and the unseaworthy condition of the vessel. He alleged that defendants failed to provide him with a safe, secure and proper place where he could perform his duties. He claimed that the vessel was unseaworthy in that, when the Dredge moved, a pile of iron ingots, improperly stacked, fell on plaintiff, then in the hold of the Dredge. The Dredge at the time of the accident was in the navigable waters of Newark Bay, at Port Newark, New Jersey.

The first count sought recovery under the general maritime law. The second count was based upon 46 U. S. C. § 688, commonly known as the Jones Act. The third count alleged defendants’ failure to furnish plaintiff with board, medical care and attention, medicines, and the expenses of his maintenance and cure in violation of defendants’ duty to do so upon plaintiff’s becoming injured and ill.

Plaintiff also filed a claim petition in the New Jersey Department of Labor and Industry, Division of Workmen’s Compensation. The petition was dismissed on April 6, 1968 by the Judge of Compensation on the ground that plaintiff was a member of a crew of a vessel on navigable waters of the United States, when he was injured, and for that reason his remedy “lies in the maritime law as supplemented by the Jones Act.” In support of that correct statement of the applicable law, the Judge of Compensation cited Norton v. Warner Co., 321 U. S. 565, 64 S. Ct. 747, 88 L. Ed. 931 (1944), and Hardt v. Cunningham, 136 N. J. Law 137 (Sup. Ct. 1947). The case of Hansen v. Perth Amboy Dry Dock Co., 48 N. J. 389 (1967) was ruled out as factually inapposite because there the nature of the employment, a painter working exclusively on land, on new ships in drydock, was distinguishable from that of a person who is injured while working as a member of a crew of a vessel on navigable waters.

On appeal, the Middlesex County Court reversed this dismissal by the Division and remanded the matter to the Division for a hearing to establish the amount of compensation which plaintiff, as petitioner, was entitled to receive. The County Court held that, even though the injury occurred on navigable waters, the State has jurisdiction “if the facts show sufficient connection with the state.” It concluded: “This is so even though the employee might also have a Federal remedy.” It found a sufficient local connection to allow applicability of New Jersey’s Workmen’s Compensation Law.

Thereafter, the Division conducted a hearing and made an award of workmen’s compensation benefits in favor of plaintiff.

In Hansen v. Perth Amboy Dry Dock Co., supra, Justice Proctor, speaking for a unanimous court said:

The most consistent factor appearing in the numerous United States Supreme Court decisions beginning with Davis [Davis v. Dept. of Labor & Industries of Washington, 317 U. S. 249, 63 S. Ct. 225, 87 L. Ed. 246 (1942)] and pertaining to the compensation of amphibious workers is the desire that an injured claimant should receive the maximum compensation possible and “not lose his remedy in a maze of legalisms.” Gilmore & Black, Admiralty § 6-50, 353 (1957). (48 N. J. at 400).

The court recognized that state jurisdiction was concurrent for injuries occurring on navigable waters “under factual situations where the state can constitutionally provide a compensation remedy.” Ibid. (Emphasis added.) The factual circumstances in Hansen validly provided a State compensation remedy because in that case, as noted above, the injured workman was injured while painting a ship under construction in dry dock, albeit the ship was in navigable waters.

In the instant case, plaintiff was injured while in the hold of this dredge or vessel on navigable waters, in the performance of his duties as a member of the crew. He did not come under the “twilight zone” rule. Nor did he come under the Eederal. Longshoremen’s and Harbor Workers’ Compensation Act, 33 U. S. C. A. § 901 et seq. His remedy was that of a seaman or member of the crew of a vessel on navigable waters, whose injuries entitle him to sue either under general maritime law or under the Jones Act.

The Jones Act provides for recovery for injury to or death of any seaman. It gives a cause of action for negligence of his employer, the owner of the vessel. Suit may be brought in a federal or state court. Frueh v. Kupper, 54 N. J. Super. 296, 300 (Law Div. 1959); Bono v. Mellor, 5 N. J. Super. 167, certif. denied 4 N. J. 73 (1950). It is not to be confused with § 903 of the Longshoremen’s and Harbor Workers’ Compensation Act which provides compensation for an injury occurring upon the navigable waters of the United States, excepting a master or member of a crew of any vessel. If the injured person is not a member of the crew his remedy against his employer is for compensation, which is payable without regard to fault and is limited by statute. But if the injured person is a member of the crew, his remedies as a seaman are far more liberal than the benefits of workmen’s compensation since he then brings his cause of action under the Jones Act and maritime law.

See, for example, Brinegar v. San Ore Construction Co., 302 F. Supp. 630 (E. D. Ark. 1969), where a jury awarded plaintiff $1,000,000 for a permanent paralysis below the neck, rendering him a quadraplegic. The court found that as a matter of law he was a “seaman” or “member of a crew of a vessel” and entitled to sue for negligence under the Jones Act and unseaworlhiness under the general maritime law. Brinegar, supra, points out the twofold test for determination of whether a person is a “seaman,” namely, (1) Was he a member of a crew of a vessel? (2) Was he in the course of his employment?

In Offshore Co. v. Robinson, 266 F. 2d 769, 75 A. L. R. 2d 1296 (5 Cir. 1959), the injured plaintiff was assigned to a dredge as an oiler, as in the instant case. The dredge was a drilling platform firmly planted to the floor of the Gulf of Mexico at the time of the injury. Jones Act coverage was upheld. The court pointed out the two tests required therein were satisfied. First, the employee was assigned permanently to “a vessel” (including special purpose structures not usually employed as a means of transport by water but designed to float on water) and he performed a substantial part of his work on the vessel. Those tests were equally satisfied in the instant case. Robinson points out that the Jones Act has always been interpreted broadly. 266 F. 2d at 774. “Vessels” include more than conventional vessels, more than a means of transportation. The word also embraces “special purpose structures” such as dredges. Id., at 776.

In summary, employees working aboard dredges on navigable waters are members of a crew of a “vessel” and are entitled to a cause of action under the Jones Act and maritime law. See, too, Pariser v. City of New York, 146 F. 2d 431, 433 (2 Cir. 1945); Gianfala v. Texas Co., 350 U. S. 879, 76 S. Ct. 141, 100 L. Ed. 775 (1955); Senko v. La Crosse Dredging, 352 U. S. 370, 77 S. Ct. 415, 1 L. Ed. 2d 404 (1957); Noble Drilling Corp. v. Smith, 412 F. 2d 952 (5 Cir. 1969).

Does an award of workmen’s compensation benefits under the New Jersey Workmen’s Compensation Act before the hearing of the Superior Court suit under the Jones Act and maritime law require dismissal of the court action, as was done here? We conclude that under the facts herein, it does not. The New Jersey Division of Workmen’s Compensation never had jurisdiction to make an award of com.pensation to plaintiff-seaman injured on a vessel on navigable waters. Such jurisdiction could not be conferred by consent or by the failure to appeal from the judgment of the Middlesex County Court. The Division’s extra-jurisdictional act may not deprive plaintiff of his federal rights and remedies provided under the exclusive maritime jurisdiction of the federal government. See Southern Pacific Company v. Jensen, 244 U. S. 205, 37 S. Ct. 524, 61 L. Ed. 1086 (1916); United States Constitution, Article III, Section II, clause 1 and Article I, Section 8, and 28 U. S. C. A. § 24 and § 256.

Obviously, plaintiff may not have a double recovery. Any money received or receivable by him by virtue of a workmen’s compensation award may be offset against any recovery under the federal law. In Biggs v. Norfolk Dredging Company, 360 F. 2d 360 (4 Cir. 1966), it was held that an employee injured aboard his employer’s vessel in navigable waters may sue his • employer for damages under the Jones Act or general maritime law on his allegation that he is a seaman, after deliberately obtaining compensation under Virginia Workmen’s Compensation Act or under Longshoremen’s and Harbor Workers’ Act on an allegation that .he was not a seaman. But the employer could recoup amounts already paid by deducting them when satisfying the court’s judgment. Biggs observed: “The order of asking for relief should not be decisive.” 360 F. 2d, at 364.

Defendant argues that the majority rule in other jurisdictions is contrary to Biggs. Reliance is placed upon Braadt v. City of New York, 21 A. D. 2d 957, 251 N. Y. S. 376 (3 Dept. 1964), aff’d 15 N. Y. 2d 875, 258 N. Y. S. 2d 413, 206 N. E. 2d 394, cert. den. 382 U. S. 21, 86 S. Ct. 83, 15 L. Ed. 2d 14 (1965), and Lopez-Correa v. Marine Naviga tion Company, 289 F. Supp. 993 (D. Puerto Pico 1968). We find those cases distinguishable from Biggs and the instant case. In Braadt, section 113 of the New York Workmen’s Compensation Law expressly sanctions awards of workmen’s compensation to injured seamen, provided the claimant, employer and insurance carrier specifically agree to a waiver of the admiralty rights. There is no such express provision in the New Jersey Act.

In Lopez-Correa, it is clearly stated that “the state of the law of admiralty and its applicability to the territorial waters of the Commonwealth of Puerto Pico is different from that of the States of the Union.” (289 F. Supp., at 995). Congress has conferred “full power of control over local navigable waters upon the Government of Puerto Pico to the compete exclusion of the admiralty and maritime law of the United States.” Id., at 997. In Puerto Pico the workmen’s compensation act is the sole remedy and suit may not be brought against the employer under the Jones Act or for unseaworthiness of a vessel.

Our courts have recognized that admiralty jurisdiction in tort actions is determined by the locality of the act. It extends to acts committed on the high seas and other navigable waters. Allisot v. Federal Shipbuilding & Drydock Co., 4 N. J. 445, 449 (1950); Hardt v. Cunningham, 136 N. J. Law 137 (Sup. Ct. 1947). In the instant case, the dredge was on navigable waters at the time of the alleged tortious act and consequential injury. State law may not deprive a litigant of admiralty rights arising out of an accident on navigable waters. United New York Sandy Hook Pilots Ass’n v. Rodermond Industries, Inc., 394 F. 2d 65, 70 (3 Cir. 1968). Our courts have held for a long time that a workmen’s compensation award will not be allowed for an accident upon a vessel located in navigable waters of the United States. Pollard v. Camden Terminal Co., 6 N. J. Misc. 938 (N. J. Work. Comp. 1928); Novak v. Union Petroleum Products Co., 16 N. J. Misc. 393 (N. J. Work. Comp. 1938); Johnson v. C. F. Harms Co., 25 N. J. Misc. 457 (Cty. Co. 1947). New Jersey has traditionally refused workmen’s compensation benefits under its statute where the claimant’s remedy is properly under the maritime law. We may not intrude upon a field of exclusive federal jurisdiction.

The facts and circumstances herein mandate a reversal of the Law Division’s dismissal of the suit instituted pursuant to 28 U. S. C. A. § 1333 in our State court for the relief provided plaintiff under federal law.

The judgment of dismissal is reversed and the matter is remanded to the Superior Court, Law Division, Middlesex County for further proceedings and trial therein.


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

text:
    JACK ANGEL AND MAXINE ANGEL, HIS WIFE, TRADING AS ANGEL VALLEY MOBILE HOME COURT, PLAINTIFFS-APPELLANTS, v. BOARD OF ADJUSTMENT OF THE TOWNSHIP OF FRANKLIN, WARREN COUNTY, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued February 9, 1970
    Decided March 11, 1970.

      Before Judges Goldmans, Lewis and Matthews.

      Mr. Leonard Adler argued the cause for appellants.

      Mr. Robert L. Schumann argued the cause for respondent.
   The opinion of the court was delivered by

Lewis, J. A. D.

Plaintiffs Jack and Maxine Angel appeal from a summary judgment in favor of defendant Board of Adjustment of the Township of Franklin. The Law Division upheld the board in refusing to approve the construction of, or recommend a use variance for, a driveway designed to aid ingress and egress to a nonconforming mobile home park.

It appears from the record that in 1964 plaintiffs purchased lot 16 in block 17, shown on the township tax map as containing 6.25 aeres, located on the southerly side of State Highway 24. The lot has highway frontage of approximately 119 feet and is used as a trailer park, a use prohibited by the township zoning ordinance; the park, however, is in lawful operation as a pre-existing, nonconforming use. In 1967 there was but one driveway serving the premises which accommodated approximately 50 mobile homes. Concerned about the safety hazards, not only to the residents of the park, but to other motorists using Route 24, the State Highway Department requested that the driveway be widened. The enlargement thereof would have involved the removal of a tree and the relocation of a utility pole.

Plaintiffs, however, desirous of constructing a second driveway, thereby permitting one for ingress and the other for egress, purchased lots 18 (approximately 33' x 167') and 19 (64' x 300', the rear thereof abutting a portion of lot 16), in block 17, located in a commercial zone which does not permit mobile home parks. On July 31, 1967 the township committee, at a meeting attended by Jack Angel, considered the proposed driveway. The committee expressed its concern for the purposes of the zoning plan “to reduce the number and closeness of access points along the highway right-of-way” and indicated an awareness that the probable heavy use of a new access driveway would severely inconvenience, and be a detriment to, the home owner of lot 20. A unanimous resolution, disapproving plaintiffs' proposal, was thereupon adopted.

notwithstanding that decision by the township, plaintiffs obtained an access permit from the New Jersey State Highway Department for the contemplated new driveway. The permit, however, contained a condition that it was “subject to all local municipal ordinances, rules and regulations.” When plaintiffs disregarded the municipal action and constructed the disapproved driveway, they were advised by the building inspector that it violated the township zoning ordinance.

The matter was then presented to the board of adjustment which, after three public hearings, found that the driveway was a structure and constituted an accessorial use serving a nonconforming use, and that its existence and use contravened the zoning ordinance. In the board’s view, the preferable solution was to widen the original driveway or construct another one, all on lot 16. Accordingly, a use variance recommendation was denied. The board resolved that the requested variance could not be granted "without substantial detriment to the public good” and that it would "substantially impair the intent and purpose of the zone plan and zoning ordinance.”

Plaintiffs contend here, as they did before the trial court, that the new driveway is neither a "structure” nor an "accessory use”; intensificaton of the nonconforming use should be permitted in the instant circumstances and, in any event, a use variance is an unnecessary prerequisite.

In Place v. Bd. of Adjust. of Saddle River, 42 N. J. 324, 328 (1964), our Supreme Court held that the word "structure” includes a fallout shelter. In that case "structure” was broadly defined "as any production or piece of work artificially built up or composed of parts and joined together in some definite manner.” (at 329) Accord, Black’s Law Dictionary (4th ed. 1951) 1592. Other decisions consonant with that definition include Moore v. Bridgewater Tp., 69 N. J. Super. 1, 22 (App. Div. 1961) (a zoning case that involved a stone crusher and electrical power equipment); Duke v. Tracy, 105 N. J. Super. 442, 446 (Ch. Div. 1969) (public walk requiring paving of some sort held to be a structure); City of Rock Island v. Industrial Commission, 287 Ill. 76, 122 N. E. 82, 83 (Sup. Ct. 1919) (an asphalt street deemed a structure within Workmen’s Compensation Act). We hold that the instant driveway is a structural appurtenance attached to land.

It is urged by plaintiffs that since lots 18 and 19 are zoned commercially, and since it is reasonable to assume that driveways may be an integral part of commercially zoned property, the one in question is inherently a permitted use. Two cases pertinent to the issue of whether plaintiffs’ second driveway is an illegal expansion of a disfavored nonconforming use, or a permissible use of commercially zoned land, are Beckmann v. Teaneck Tp., 6 N. J. 530 (1951) and Wolf v. Zoning Bd. of Adjust, of Park Ridge, 79 N. J. Super. 546 (App. Div. 1963).

In Beclcmann the municipality permitted the construction of a business building 150 feet away from Route 4. The court determined that a driveway for purpose of ingress and egress over an intervening residential area was a permissible use essential to the commercial property. Originally a street had been planned which would have served the business enterprise, but the “paper street” had been obliterated by the eventual positioning of the state highway. Moreover, the building construction permit, certificate of occupancy and written memorandum from the township manager were reflective of knowledge of, and acquiescence in, the need for a means of ingress and egress. Noting that a driveway “in itself is neutral,” the court declared in substance that a concatenation of the municipal incidents generated the conclusion that the driveway was a practical necessRy. 6 N. J., at 536.

The present controversy is factually distinguishable. Here, the mobile home park is not landlocked nor is there an urgent necessity for the construction of the second driveway on lands apart from the nonconforming use premises. The expansion of that use on other lands was a viable alternative.

The rationale enunciated in Wolf is more appropriate to the facts before us. In that case a preexisting restaurant was located on a parcel of land zoned residential. The owner sought to pave a substantial portion of the land to the rear of the restaurant building contending that such lands consituted regular parking grounds. The extension of the nonconforming use onto the previously virgin portion of the lot was challenged as an illegal enlargement of a nonconforming use. This court declared:

* * * The predominant viewpoint * * * supports the position that land used as a means of access to, or for the parking of vehicles of patrons, of a business, is in a use accessorial to the business and thus is itself in legal contemplation being used for the business purpose in question. Such use therefore contravenes a zoning ordinance which restricts the parking or access land to residential uses. [79 N. J. Super., at 550-551 ; emphasis added]

The proprietor was precluded from expanding onto a previously unused portion of his lot. See also Martin v. Cestone, 33 N. J. Super. 267, 270-271 (App. Div. 1954). This viewpoint is in accord with the majority of jurisdictions. See, e. g., 3 Yokley, Zoning, § 28-21.1, p. 43 (Supp. 1969); City of Providence v. First National Stores, Inc., 100 R. I. 14, 210 A. 2d 656 (R. I. Sup. Ct. 1965); 8A McQuillin, Municipal Corporations (3d ed. 1965), § 25.206, at 69; Annotation, 87 A. L. R. 2d 4, 31 (1963).

We are unpersuaded that plaintiffs should, in contravention of the zoning ordinance, be permitted to expand the use of their trailer park by an accessorial means across their newly acquired lots. Indeed, the construction of the driveway was a unilateral act in disregard of the township’s resolution, and it should not be approved.

Einally, we are convinced from a review of the record that the board of adjustment did not act arbitrarily, capriciously or unreasonably when it denied plaintiffs’ request to recommend a use variance. Kramer v. Bd. of Adjust., Sea Girt, 45 N. J. 268, 296-297 (1965); Hilton Acres v. Klein, 35 N. J. 570, 581 (1961).

Judgment affirmed.

Matthews, J. A. D.

(concurring). In view of the fact that plaintiffs’ purchase of additional lands was for the purpose of estabhshing the driveway involved here, I find this case to be distinguishable from the holding in Beckmann v. Teaneck Tp., 6 N. J. 530 (1951). Accordingly, I concur in the affirmance of the judgment below.


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

text:
    VINCENTE TIBBS, PLAINTIFF-APPELLANT, v. HENRY BOEMI, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued March 2, 1970
    Decided March 16, 1970.

      Before Judges Oonpobd, Coelestee and Kolovsky.

      Mr. Richard A. Kurland argued the cause for appellant.

      Mr. Bernard Chasen argued the cause for respondent.
   The opinion of the court was delivered by

Kolovsky, J. A. D.

As the court noted in City of Clifton v. Zweir, 36 N. J. 309, 311-312 (1962):

The Municipal Planning Act of 1953, N. J. S. A. 40:55-1.1, et seq., applicable to all municipalities, provides for local planning board membership in four categories:
Class I—“Mayor,” to serve a term corresponding to his official tenure ;
Class II—“one of the officials of the municipality to be appointed by the mayor,” whose term “shall terminate with the term of the mayor appointing him”;
Class III—“a member of the governing body to be appointed by it” for a term corresponding to the appointee’s official tenure ;
Class IV—“a specified number of other citizens of the municipality to be appointed by the mayor” to serve for designated periods. (N. J. S. A. 40:55-1.4.)

The dispute in this case is as to which of the two members of the city council, of the City of Englewood, is entitled to sit as the class III member of its planning board. The trial court ruled in defendant’s favor and plaintiff appeals.

Plaintiff Tibbs’ present term as councilman began on January 1, 1968 and will end on December 31, 1970. By resolution adopted on January 8, 1968 the city council appointed Tibbs as the “Glass III Council member” of the municipal planning board “for a term corresponding to his official tenure as Councilman.” It is conceded that the tenure of the councilman who had theretofore been the class III member had expired.

On December 31, 1968 Tibbs submitted his resignation as class III member of the planning board. On January 2, 1969 the city council adopted a resolution which recited Tibbs’ resignation and appointed one Mettler, a member of the council whose term of office as councilman would expire on December 31, 1969, as “Class III member of the Planning Board * * * to so serve until December 31, 1969.”

The next pertinent official action was a resolution adopted on December 31, 1969 by the city council, referred to in the “agreed statement of facts” as “the administration leaving office.” (The reference is to the fact that as the result of the November 1969 election for conncilmen to take office on January 1, 1970, majority control of the city council passed on that date from one political party to the other.)

The resolution, after reciting Tibbs’ appointment on January 8, 1968 as class III member of the planning board, his resignation on December 31, 1968, Mettler’s appointment on January 2, 1969 to replace Tibbs, and the submission on December 26, 1969 of Mettler’s written resignation as such class III member, resolved that Mettler’s resignation he accepted and appointed Tibbs

to serve out the unexpired term established by said Councilman Vincente K. Tibbs on January 8, 1968, as the Couneilmanic Representative (Class III Member) to the Planning Board of the City of Englewood, as provided by N. J. S. 40:55-1.4.

On January 6, 1970 the city council, the “new administration,” appointed defendant Boemi as class III member of the planning board. Boemi had been elected at the November 1969 election as a councilman for a term beginning January 1, 1970 and ending December 31, 1971.

On January 13, 1970 Tibbs and Boemi each took oath of office as class III member of the planning board and each demanded to be seated as such member at the Planning Board meeting held on that day. The planning board refused to seat either. The present action was then instituted.

Resolution of the controversy requires an interpretation of N. J. S. A. 40:55-1.4 which, after providing for the four classes of members of a municipal planning board and their qualifications, reads in pertinent part as follows:

The terms of the members composing Classes I and III shall correspond to their respective official tenures. The term of the member composing Class II shall terminate with the term of the mayor appointing him. The term of one member of Class IV first appointed shall expire at the end of each year beginning at the end of the first year. Thereafter the term of each shall be the same number of years as there are members of Class IV on the board. If a vacancy in any class shall occur otherwise than by expiration of term, it shall be filled by appointment as above provided for the unexpired term.

In determining how the statute is to be construed we, of course, give due consideration to the views expressed by the attorneys for the respective parties but are not bound by the concession or agreement of counsel as to how the statute is to be interpreted. Know the Facts Inc. v. Ryan, 48 N. J. Super. 453, 456 (Ch. Div. 1958); Annotation, “Stipulation of parties as to the law,” 93 A. L. R. 663, 669 (1934).

It is not controlling that this case was argued in the trial court and is argued here on the theory concurred in by both plaintiff and defendant, that the statutory provision for filling a vacancy occurring “otherwise than by expiration of term” applies to the office of class III member of the planning board.

When questioned at oral argument both counsel indicated that they attach no significance to the fact that the statute does not fix a calendar term for the office of class III member although it does just that in the ease of the class IV offices, viz.,

Tlie term of one member of Class IV first appointed shall expire at the end of each year beginning at the end of the first year. Thereafter the .term of each shall be the same number of years as there are members of Class IV on the board.

“Year” as thus used in the statute means a calendar year. Newman v. Borough of Fair Lawn, 31 N. J. 279 (1960); N. J. S. A. 1:1-2.

The statute provides with respect to class III members that their terms “shall correspond to their respective official tenures [as members of the governing body of the municipality] .”

It is counsels’ thesis that when a member of the municipality’s governing body is appointed as a class III member of its planning board either initially on the creation of the board or thereafter following the expiration of the tenure of a prior incumbent class III member, such appointment establishes a calendar term for the office of class III member, a term equal to the unexpired period of the appointee’s term as member of the governing body of the municipality.

We do not agree. Counsels’ hypothesis and their conclusion that the statutory provision relating to vacancies applies to class III members of the planning hoard ignore the distinction recognized in our law between cases in which the term of office is attached to the office itself and those in which it relates only to a particular incumbent thereof. Clay v. Browne, 96 N. J. L. 303, 305-306 (Sup. Ct. 1921), aff’d o. b. 97 N. J. L. 315 (E. & A. 1922); see also Ninesling v. Nulion, 9 N. J. Super. 242, 245 (App. Div. 1950).

In Clay v. Browne, supra, the parties contested title to the office of health officer of the Paterson Board of Health. On January 8, 1918 the hoard, pursuant to the power granted it by Comp. Stat., p. 2669, “to appoint such subordinate officers and agents * * * as they may deem necessary, to fix the terms of such appointments, and the compensation of such appointees,” had appointed one Hagen as health officer for a term of three years ending January 1, 1921. On December 14, 1920 Hagen resigned and on the same day the board appointed Clay to that office for a term of three years beginning on that date. Clay assumed' office, but on January 1, 1921 the board passed a resolution reciting that Clay had not been legally appointed to the office, rescinding the resolution which had appointed him, and appointing Browne as health officer for a term of five years.

Browne contended that “the board of health was without power on December 14tli to appoint a health officer except for the unexpired term of Dr. Hagen, i. e., for the period between December 14th and January 1st then next,” this because the pertinent statute (Comp. Stat. p. 632) provided that

all vacancies in offices in any city of this state arising from or created by any other cause than expiration of term of office shall be filled for the unexpired term only.

In ruling in Olay’s favor and holding that

Upon Dr. Hagen’s resignation and its acceptance the term for which he was appointed as health officer, as well as his right to continue to hold the office, came to an end. [96 N. J. L., at 306],

the court said:

It is conceded by counsel of the respective parties that the rights of their clients depend upon the scope of * * * [Comp. Stat. p. 632, quoted above] ; and we concur in this view. The question for determination, therefore, is whether the term of Dr. Hagen came to an end by force of his resignation and its acceptance, or whether that term continued to exist notwithstanding that his right to further occupy the office had ceased.
When the Legislature, by statute, creates an office, and affixes a term to it for which each and every incumbent shall hold it, or where a municipal board pursues the same course under legislative authority conferred upon it for the purpose, the resignation of an incumbent thereof, before the expiration of the term so fixed, leaves an uncompleted term, and the vacancy can only be filled in the manner provided by the fifth section of the act of 1901; that is, for the period that the term has yet to run. But, in our opinion, where the fixation of the term of office is not attached to the office itself, but relates only to a particular incumbent thereof, then upon the termination of the right of the incumbent to continue to occupy the office, no matter how or when the right ceases to exist, the term for which he was appointed automatically comes to an end, and no unexpired portion thereof remains to be dealt with in accordance with the statutory provision above cited, [at 300-306]

The rule stated in the second quoted sentence is fully applicable to the instant case, where it is also true that “the fixation of the term of office is not attached to the office itself, but relates only to a particular incumbent thereof.” The term of office of a class III member is not attached to the office itself; it relates only to and is determined and fixed by the identity of the particular member of the governing body of the municipality who is chosen and appointed to act as the class III member of the planning board. The term will vary depending on who is chosen and the happenstance of the length of his unexpired tenure as member of the governing body.

When, on December 31, 1968. Tibbs resigned as class III member, the term fox which he had been appointed as such member, as well as his right to continue to hold the office, came to an end. No unexpired portion of his term remained to he dealt with pursuant to the provision for filling vacancies found in N. J. S. A. 40:55-1.4.

The same is true with respect to the situation on December 26, 1969 when Mettler resigned as class III member. Tibbs’ appointment on December 31, 1969 as such member was not an appointment to fill a vacancy but an original appointment for a term corresponding to the balance of his term as councilman, viz., until December 31, 1970. The fact that the resolution of December 31, 1969 referred to the appointment as one “to serve out the unexpired term established by * * * Tibbs on January 8, 1968” is legally irrelevant. Newman v. Borough of Fair Lawn, 31 N. J. 279, 288 (1960); Gillson v. Heffernan, 40 N. J. 367, 375 (1963).

We add that even if we were to accept the parties5 interpretation of the statute, we would still hold that Tibbs5 appointment on December 31, 1969 was effective as an appointment for a period ending December 31, 1970.

Under the parties5 construction of the statute, the term of the office of class III member was established as a term ending December 31, 1970 (the date of expiration of Tibbs5 "official tenure55 as a councilman) upon Tibbs5 original appointment on January 8, 1968 to succeed the prior class III member whose tenure had ended.

Any subsequent appointment to that office made in the period prior to December 31, 1970 would then be an appointment for the unexpired portion of the term ending December 31, 1970. This would include not only Mettler’s appointment on January 2, 1969 but also Tibbs5 appointment on December 31, 1969, so that there was no existing vacancy when the council, on January 6, 1970, purported to appoint defendant Boemi as the class III member.

Contrary to what defendant argues and the trial court held, we are satisfied that the term of the office, if thus created on Tibbs5 original appointment as a term ending December 31, 1970, was not altered by what thereafter transpired. The fact that Mettler, appointed on January 2, 1969 to fill the "vacancy55 resulting from Tibbs5 resignation, would not be qualified to sit as class III member beyond December 31, 1969 because his term as councilman would then expire, would not affect the term of the office; his disqualification would result only in the creation of a vacancy in the office.

An additional contention advanced by defendant Boemi remains to be considered. He argues that even if Tibbs5 appointment on December 31, 1969 be deemed effective as an appointment for the period ending December 31, 1970, the appointment was effectively revoked by the council’s resolution appointing Boemi to the office adopted on January 6, 1970, a date prior to the date (January 13, 1970) Tibbs took and subscribed to his oath of office as class III member, as called for by N. J. S. A. 40A:5-33.

There is no merit in defendant’s contention. Tibbs’ appointment as class III member by the city council became complete on December 31, 1969 when the resolution appointing him was adopted. Absent fraud or other invalidating element, neither of which is present hero, the appointment thus made could not be revoked by the appointing authority. 3 McQuillin, Municipal Corporations (3 ed., rev. 1963), § 12.86.

The judgment is reversed and the cause remanded to the Law Division for entry of judgment that plaintiff Tibbs holds title to and is entitled to sit as the class III member of the planning board of the City of Englewood. No costs to either party.

Conford, P. J. A. D.

(dissenting). I think the court takes unwarranted liberties with the statute (N. J. S. A. 40:55-1.4) when it concludes that the reference in the last sentence, “vacancy in any class,” excludes vacancies in class III. There is no good reason to ignore the express language used.

To me, the provision

“If a vacancy in any class shall occur otherwise than by expiration of term, it shall be filled by appointment as above provided for the unexpired term.”

means that the term of the appointee shall be for the same period of time that the immediate predecessor — the one as to whom a vacancy has arisen — could have continued lawfully to serve if the contingency causing the vacancy had not arisen. In this instance, since Metfler’s lawful term would have expired at the end of the day on December 31, 1969, any appointment to fill his place made while that vacancy still existed could only have been for a period until the end of that day. Since the appointment of Tibbs by the council on that day could not legally have been for a longer period, there was a new vacancy on and after January 1, 1970 which the council could properly fill thereafter, as it did by appointing Boemi. Had the council not acted in respect of the Mettler vacancy until January 1, 1970 or thereafter, there would then have been no difficulty in appointing Tibbs for a new term for the period of his remaining tenure as councilman since there would no longer have existed an “unexpired term” of Mettler to fill.

I find nothing in Clay v. Browne, relied upon by the majority, to warrant a different construction of the statute from what is set forth above. The statute there involved concerned “all vacancies in offi-ces * * * arising from or created by any other cause than expiration of term of office * * (96 N. J. L., at 305, emphasis mine). The instant act relates to “vacancies in any class” (emphasis mine) and to “expiration of term.” I do not believe the Legislature in the present instance was writing from a mental background of distinctions between terms “attaching to the office” and those “relating to a particular incumbent.”

The language used is simple and non-technical and should be given the interpretation which would readily come to the minds of laymen called upon to administer it. As indicated, this means that the “unexpired term” is that of the last incumbent, not some prior incumbent.

My view of the statute also repels the theory advanced by appellant —• that the “term” of planning board member requiring filling on Mettler’s resignation was that begun by Tibbs on the occasion of his first appointment on January 8, 1968. That term, in the presently relevant sense, ended forever when Tibbs resigned as a member of the planning board on December 31, 19G8. When Mettler was .appointed to succeed him on January 2, 1969 he began a new term of his own as planning board member — one which under the statute would be measured, as a maximum, by the period of time Tibbs had yet to serve when he resigned, but not for a longer period than he. Mettler, himself had left to serve as councilman. The latter statutory qualification caused Mettler’s term as planning board member to terminate December 31, 1969, and accordingly, as concluded first above, any appointment of a class III member to succeed him, made before the end of that term, could legally vest in his successor only a term for the then remaining period of Mettler’s term.

I would affirm.