author: Halpeen, J. A. D.

text:
    STATE OF NEW JERSEY, IN THE INTEREST OF: C. S. AND J. C., JUVENILE-APPELLANTS.
    Superior Court of New Jersey Appellate Division
    Argued October 20, 1970
    Decided November 2, 1970.

      Before Judges Kilkenny, Halpeen and Lane.
    Mrs. Mary Aurigemma, Assistant Deputy Public Defender, argued the cause for appellants (Mr. Stanley G. Van Ness, Public Defender, attorney).

      Mr. Edward R. Rosen, Assistant Prosecutor, argued the cause ’ for, respondent (Mr. Vincent P. Keuper, Monmouth County Prosecutor, attorney; Mr. Elliot P. Katz, Assistant Prosecutor, on the brief).
   The opinion of the court was delivered by

Halpeen, J. A. D.

Defendants were adjudged juvenile delinquents (N. J. S. A. 2A:A-14(1) (d)) for uttering loud and- offensive language (N. J. S. A. 2A:170-29) and causing a disturbance in a school (N. J. S. A. 2A:170-28). Both were sentenced to indeterminate terms in the State Home for Girls.

The trial judge concluded from the evidence that defendants and another juvenile, who was also adjudged delinquent but has ■ not appealed, entered Freehold Regional High School while classes were in session. The three girls were not enrolled at this school. A teacher, Mrs. Stutzman, heard a commotion in the hall and asked the three girls for ■ their passes. One of them pushed her, and then all three ran down the hall causing a disturbance. Ultimately, Mr. Figg, the Assistant School Principal, and Mr. Foster, a special policeman and school attendance officer, located the three girls in the girls’ lavatory and brought them to Figg’s office. When told they could not leave until they were turned over to a responsible adult, they, reviled Figg. and Foster with offensive and profane language which need not be repeated. While waiting for the police to arrive, the three girls bolted from the office. A chase ensued through the hallways, causing great'excitement among the students; the girls wore finally caught. ’ ■

Wo agree with defendants’ contention that the convictions under N. J. S. A. 2A :170 — 29 must be reversed. The proofs failed to show that the offensive language used in Figg’s office was loud .and of such a 'nature as to be likely to incite the hearers to an immediate breach of the peace. State v. Griffin, 92 N. J. Super. 389, 391 (App. Div. 1966) ; State v. Profaci, 56 N. J. 346, 353 (1970).

We disagree with defendants’ contention that “the Ríate failed to present a prima facie- case oh' the added charge of disturbing assemblies” (N. J. S. A. 2A :170-28). The thrust of their argument is that Figg and Foster had no legal right to detain them, hence their escapo and resulting disturbance was not a violation of the statute. This argument is specious. Figg and Foster, acting on behalf of Ihe school authorities, not only had the right to detain the girls but the duty to do so, since they were not enrolled as students and were causing a disturbance. Seo N. J. S. A. 18A : 17-42 et seq., wherein the Legislature took cognizance of the problems arising from unlawful intruders in public schools.

In view of' the previous juvenile records of the defendants, the sentences imposed were not excessive. State v. Tyson, 43 N. J. 411, 417 (1964), cert. den. 380 U. S. 987, 85 S. Ct. 1359, 14 L. Ed. 2d 279 (1965).

Except as herein modified, the judgments are affirmed.


source: Caselaw Access Project

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

license: Public Domain

text:
    MICHAEL J. FLYNN, JOHN B. MULVANEY, FRANCIS J. GILROY, ERNEST ZOPPI, EMMA R. GILROY, LOUIS STROMP AND WILLIAM GIST, PETITIONERS-APPELLANTS, v. LEWIS D. MEGARO, MOVANT-INTERVENOR, v. CIVIL SERVICE COMMISSION OF THE STATE OF NEW JERSEY, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued October 26, 1970
    Decided November 10, 1970.

      Before Judges Golomann, Lbonabd and Mountain.

      Mr. Steven C. Bother argued the cause for appellants.

      Mr. Paul Alongi argued the cause for intervenor (Messrs. Alongi & Bregg, attorneys).

      Mr. George F. Kugler, Jr-, Attorney General, filed a statement in lieu of brief on behalf of respondent (Ms. Colette Coolbaugh, Deputy Attorney General, of counsel).
   The opinion of the court was delivered by

Goldmann, P. J. A. D.

Initially, plaintiffs appealed to this court from the denial of the relief they requested of the Civil Service Commission by a petition dated May 10, 1968, that the Commission refrain from promulgating an eligible list of court clerks based on examination C1530 and that the county clerk replace temporary court clerks with those on the' C880X list, which lists are explained hereafter. The Commission’s determination to use list C880X to make immediate appointments and fill current vacancies has resulted in a changed situation which requires a somewhat extended explanation.

On August 7, 1967 the Civil Service Commission announced an examination for the position of Essex County court clerk (knowledge of typing), No. C880X. Petitioners took the examination and a 'certified ■ list of eligibles was subsequently released, the list to expire January 19, 1970., The county clerk had specifically requested that a knowledge of typing be one of the qualifications for the examination.

On January 11, 1968 the Commission announced that there would be an examination for Essex County court clerk, No. 1530, without the typing, requirement that the¡ county clerk, as appointing .authority, had requested but which the Commission refused to adopt.

On February 23, 1968 petitioners instituted a proceeding in lieu of prerogative writs in the Law Division (Docket L-20929-67P.W.) alleging violation of N. J. S. A. 11:22-32, which reads, in pertinent part:

* * * Appointments shall be made from the eligible list most nearly appropriate, and a new and separate list shall be created for a stated position only when no appropriate list exists from which appointment may be made.

The complaint' sought to enjoin examination C1530 and to replace all temporary clerks with qualified persons from the C880X “knowledge of typing” list. On learning that the C1530 examination was to be held on April 19, 1968, petitioners by motion sought to have the Law Division énjoin the holding of the ■ examination pending the suit. Defendant Civil Service Commission filed a cross-motion' to dismiss the complaint, which motion was granted for failure to exhaust administrative remedies and for lack of subject matter jurisdiction.

The C1530 examination was held as scheduled. Then followed the May 10, 1968 petition referred to in our opening paragraph, requesting the Commission to appoint from the C880X list and that an eligible list based on the April 1.9 examination not be certified. Despite petitioners’ requests for an early hearing, the Commission on June 13, 1968 notified those who had participated in the April 19 examination that an eligible list based thereon had been certified — an action which petitioners deemed to be a denial of the relief they had requested and which resulted in their filing a notice of appeal with this court. They also immediately moved to have us enjoin the Commission from proceeding with appointments to the position of court clerk from the C1530 list, pending disposition of the appeal. They also moved for permission to present evidence before the Commission. We granted both motions.

On July 11, 1968 the Chief Examiner and Secretary of the Commission informed petitioners’ attorney that the Commission, after careful consideration of all the pertinent facts, had concluded that the C880X list was the most appropriate in the circumstances and that the Department of Civil Service was prepared to declare it so and to certify from the list. However, no certifications could be made until the pending appeal was determined or withdrawn. Shortly after this Lewis D. Megaro, who had successfully taken the C1530 examination, filed a motion to intervene and seeking an ad interim stay and leave to present additional evidence. We granted the motion.

Civil Service Commissioner Bailan held hearings pursuant to our orders and on March 4, 1910 handed down his determination, electing to make findings of fact and conclusions of law in order to avoid further delays, and this despite some disagreement on the part of counsel who participated at the hearings. He found the typing requirement reasonable and that the county clerk, in requesting such skill, did so in good faith and in the exercise of proper discretion.

Petitioners’ original brief argued in favor of the Commission’s determination. However, intervenor Megaro contends that the “knowledge of typing” requirement for the position of court clerk is unnecessary and not a sufficient reason for disregarding the C1530 list for immediate appointments and the filling of current vacancies. By supplemental brief petitioners call attention to the fact that on May 22, 1970 the Commission certified eligibles from the C880X list, despite the existence of our restraints and the fact that the list had expired on January 19, 1970 and had not been extended in accordance with the requirements of N. J. S. A. 11:9-10. The Commission, which (as Commissioner Bailan stated) “had acted in a somewhat inconsistent manner in scheduling [the] two examinations,” realized that it had acted improvidently and thereupon on May 28, 1970 cancelled the certifications.

Fearing that once this litigation terminated the Commission would certify all names on the C880X list, petitioners contend that they and they alone should enjoy the fruits of victory, and no one else be certified or appointed from the C880X list.

Petitioners, having been successful before the Commission, now defend its determination except for the limitation they would impose upon the use of the C880X list, as argued in their supplemental brief. It is the intervenor who attacks the Commission determination, claiming that (1) knowledge of typing is an unreasonable requirement for the position of court clerk, and (2) examination C1530, having been held in good faith, could not be ignored by the Commission.

The record clearly indicates that typing is a reasonable requirement for a court clerk, and we concur in the Commission’s finding. Typing was requested by the appointing authority, the county clerk, who was in the best position to know what the position required. The Commission, in acceding to his request when it scheduled examination C880N, exercised the wide administrative discretion lodged in it by the Legislature with respect to the formulation and administration of civil service examinations. An appellate court will not intervene to nullify a civil service examination absent a clear showing that the Civil Service Department abused its discretion. Zicherman v. Department of Civil Service, 40 N. J. 347, 350-351 (1963), and the cases there cited.

We find no reason why the C1530 examination should have been announced and held when it was. The positions involved were precisely the same, court clerk. The qualifications for C1530 were admittedly the same except for typing, a skill which the county clerk had insisted upon throughout. An explanation for the second examination was sought to be given by the Principal Personnel Technician in the Civil Service Department, whose duties involved the supervision of other technicians engaged in classifying positions, conducting desk audits and processing other personnel matters. He admitted that the Department defers in many situations to the appointing authority. He explained that a desk audit in the county clerk’s office was conducted on June 24, 1968. This was more than five months after the C1530 examination was announced and two months subsequent to the holding of that examination. The audit showed that there were some 14 temporaries serving as court clerk who did not have typing experience, and it was based on this fact (so the witness said) that an examination had been called with the typing requirement omitted. This rationalization is after the fact: the examination is first held, and then an audit conducted to justify it.

One of the witnesses at the Commission hearing was the Director of Classification of the North Jersey area. His surprising testimony was that administrative policy, as far as he knew, had for the past 23 years been to ignore N. J. S. A. 11:22-32, quoted above. He insisted that, in any event, the statute did not apply since the addition of typing rendered the two positions different and therefore separate. He argued that the typing requirement was unreasonable. We cannot accept that conclusion, nor can we excuse any ignoring of the provisions of N. J. S. A. 11:22-32 if, indeed, the Department has done so.

One, and only one, examination was called for — C880X. A court clerk with typing ability is certainly a better equipped person for the job than someone who might be appointed from the C1530 list, which did not require typing:

We turn to petitioners’ argument that if appointments are made from the C880X list they are to be the sole beneficiaries of this litigation. Either the list as promulgated is good for all or invalid for all.

In Marranca v. Harbo, 41 N. J. 569 (1964), the court dealt with N. J. S. A. 11:22-33 which provides that

When an eligible list has been established by the commission for any position or employment in the service of any county, municipality or school district, and a proceeding has been instituted in any court of record, with respect to the filling of any position or employment from such eligible list, such list shall not expire during the period in which such litigation is pending but shall be extended from the time of the entry of judgment for a period of time equal to the period during which such, proceeding or litigation was pending. [Emphasis added]

The court said that the statute was clear enough: “justice should not be denied because the list expired during the pendency of the litigation” (at 573).

Marranea does not factually stand for the position which petitioners would have us take. In that case at the time of the litigation plaintiff had moved to a priority position on the first promotional list, and nowhere in the facts does it appear that there were any other persons on that list who were available and desirous of promotion to sergeant. The issue petitioners raise was obviously not involved in Marranea.

It was only because of the Commission’s mistaken procedures that those who had successfully attained the C880X eligible list were prejudiced by its expiration. Petitioners may have carried the brunt of the litigation, but it would be unfair to those who successfully passed the C880X examination to be passed over in favor of petitioners alone. We cannot accept so harsh a result.

We accordingly conclude that list 0880X should be used to make immediate appointments and to iill current vacancies.

Affirmed.


author: Meredith, J. C. C.

text:
    STEPHEN L. YATES AND PRISCILLA YATES, LEO FLYNN AND BARBARA FLYNN, ARTHUR BLOM AND JANET BLOM, MICHAEL LIVAK AND JOSEPHINE LIVAK, THORLIEF CHRISTENSEN AND MARION CHRISTENSEN, ANDREW CLIFFER AND JOAN CLIFFER AND PAUL MARTIAN AND KATHERINE MARTIAN, PLAINTIFFS, v. BOARD OF ADJUSTMENT OF THE TOWNSHIP OF FRANKLIN, MAYOR AND COUNCIL OF THE TOWNSHIP OF FRANKLIN AND SOMERSET VOLUNTARY FIRE COMPANY NO. 1, A CORPORATION OF THE STATE OF NEW JERSEY, DEFENDANTS.
    Superior Court of New Jersey Law Division
    Decided August 18, 1970.

      Mr. Clifford F. Griggs, for plaintiffs (Messrs. Mayo and Griggs, attorneys).

      Mr. Herbert J. Silver, for defendant Board of Adjustment of Franklin Township.

      Mr. Stanley Cutler, for defendant Mayor and Council of Franklin Township (Messrs. Rosenhouse, Cutler and Zuckerman, attorneys).

      Mr. Joseph Fisch, for defendant Somerset Voluntary Fire Company No. 1.
   Meredith, J. C. C.

(temporarily assigned). Plaintiffs seek a declaratory judgment that the action taken on behalf of the Township of Franklin in declaring that a voluntary fire company is a permitted use within the R-20 Residential zone of Franklin Township was illegal, void and of no effect.

In July of 1969, the defendant Somerset Voluntary Fire Company No. 1 (hereinafter referred to as Somerset) applied for a zoning and building permit to construct a two-story fire house on Lot 1 in Block 444 on Hollywood Avenue in the Township of Franklin. This lot was zoned as R-20 Residential. The zoning officer of Franklin Township denied the application by letter dated July 17, 1969, on the grounds that such a building was not a permitted use within the R-20 Residential-' zone. Thereafter, on August 22, 1969, the defendant Somerset ■ applied to -the defendant Board of Adjustment of Franklin 'Township for a variance. On October 2, 1969, a public hearing was held before the defendant Board of Adjustment on the variance application.

On October 16, 1969, the defendant Board of Adjustment adopted a resolution recommending the, aforesaid variance. The matter was then sent to the defendant. Mayor and Council of Franklin Township for their final determination.

By letter addressed to the defendant Mayor and Council dated November 13, 1969, the Township Attorney expressed. his opinion .that the location of a voluntary fire company within an R-20 Residential zone was a .permitted use. As a result, the defendant Mayor and Council refused to act .on. the recommendation of . the defendant Board of Adjustment and took the position that the variance was unnecessary since the voluntary fire company qualified as a permitted use. • •. ■

.The 'plaintiffs, .property .owners within two hundred feet of the proposed structure, have brought this action.to de-r termine the validity of that decision under N. J. S. A. 40 .55-30.

The applicable section of the Franklin Township Zoning Ordinance is Section IX, Paragraph 1, which provides that in an R-20 Residential zone, permitted uses include

* * * municipal parks, playgrounds and other buildings and uses as are deemed appropriate and necessary by the governing body.

A study of the New Jersey case law fails to disclose whether a voluntary fire company qualifies as a "municipal use/5

The basic problem which now confronts this Court is one of interpretation and construction of the above quoted ordinance. Generally, questions of interpretation and construction of municipal ordinances are to 'be liberally construed in favor of the municipal authority. N. J. Const., Art. IV, § VII, par. 11.. See-also Savonick v. Lawrence Tp., 91 N. J. Super. 288, 294 (Law Div. 1966)

It is elementary that there is a definite need for fire protection in every municipality within this State. It cannot be questioned that a fire department performs a necessary and essential function. Its benefits redound to all members of the community. Municipalities which are in a position to afford a full-time fire department have been specifically authorized to establish the same by statute. N. J. S. A. 40:149-4 to 9.

However, it is conceded that there still exists a substantial number of rural communities which are unable to bear the financial burden of a full-time fire department. For this reason, civic-minded members of the community often band together to provide fire protection. In realization of this dilemma, the Hew Jersey Legislature has promulgated rules and regulations for the formation and control of such voluntary fire departments. N. J. S. A. 40 :149-10 et ssq.

Were Franklin Township in a position to afford a full-time fire department, there would he no question that this service would be considered a “municipal use.” In light of this fact and of the type of services performed by a voluntary fire company, it is the opinion of this court that the terms “municipal use” should be construed as to include voluntary fire departments.

Plaintiffs further contend that the municipal authorities have failed to consider other possible sites for this fire house. This court does not agree. The record indicates that other sites were considered and therefore this court will not overturn that decision.

Judgment is hereby rendered for the defendants for the above-mentioned reasons.


author: ÜAlperít, J. A. D.

text:
    THE DELAWARE RIVER & BAY AUTHORITY, PLAINTIFF-APPELLANT, v. NEW JERSEY PUBLIC EMPLOYMENT RELATIONS COMMISSION, AND GENERAL TEAMSTERS LOCAL UNION 326, AFFILIATED WITH INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN & HELPERS OF AMERICA, DISTRICT NO. 1-P. C. D., MARINE ENGINEERS BENEFICIAL ASSOCIATION, AFL-CIO AND LOCAL 333, UNITED MARINE DIVISION, NATIONAL MARITIME UNION, AFL-CIO, BEING UNINCORPORATED ASSOCIATIONS OF PERSONS TRANSACTING BUSINESS IN NEW JERSEY, USING A COMMON NAME AND NOT BEING AN ORDINARY PARTNERSHIP, DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued October 20, 1970
    Decided November 9, 1970.

      Before Judges Kilkenny, Halpekn and Lane.

      Mr. Vincent J. Pancari argued the cause for appellant (Messrs. Hatpin, Bailey & Pancari, attorneys); Mr. Bruce M. Siargatt, of Wilmington, Delaware, also argued the cause for appellant, 'with the court’s permission (Messrs. Young, Conaway, Stargatt & Taylor, attorneys).

      Mr. William Rossmoore argued the cause for respondent Marine Engineers Beneficial Association (Messrs. Rossmoore and Morris, attorneys).

      Mr. Howard 8. Simonof argued the cause for respondent General Teamsters Local Union No. 326 (Messrs. Plone, Tomar, Parles and Seliger, attorneys; Mr. Robert F. O’Brien, on the brief).

      Mr. George F. Kugler, Jr., Attorney General of New Jersey, filed a statement in lieu of brief on behalf of respondent New Jersey Public Employment Relations Commission.

      Mr. Michael M. Rosenbaum argued the .cause for respondent Local No. 333, United Marine Division, National Maritime Union, AEL-CIO (Mr. Eugene T. O’Toole, attorney).
   The opinion of the court was delivered by

ÜAlperít, J. A. D.

In granting leave to appeal from an order of Judge Wick entered in the Chancery Division, we elected to continue the restraints he imposed and to consider the merits of the appeal in accordance with R. 2 :ll-2. Briefs were submitted by all parties and fully argued on October 20, 1970.

The narrow issue for determination is whether the New Jersey Public Employment Relations Commission (PERC) has jurisdiction over plaintiff Delaware River & Bay Authority (Authority), a bi-state agency created by compact between the States of New Jersey and Delaware.

The Authority was established by interstate compact in 1962, approved by Congress. In general terms, the Authority was, authorized to construct and operate crossings between New Jersey and Delaware over the Delaware River and Bay. A full recital of its creation, purposes, powers and functions is set forth in Delaware River and Bay Authority v. International Org., etc., 45 N. J. 138 (1965), and need not be repeated here. The principle established by that decision is that plaintiff is a public agency whose employees have no right to strike.

The New Jersey Employer-Employee Relations Act (act) was enacted in 1968 (N. J. S. A. 34:13A — 1 et seq.). In general terms, the act was designed to permit public employees to organize, join unions and to appoint bargaining representatives to engage in collective negotiations with public employers. PERO was created by § 5-3 of the act and, among other powers, was authorized to conduct secret ballot elections to ascertain duly elected bargaining representatives. A full discussion of the history of the act and its purposes is contained in Lullo v. International Ass’n of Fire Fighters, 55 N. J. 409 (1970), and Burlington County Evergreen Park Mental Hospital v. Cooper, 56 N. J. 579, 586-590 (1970), and will not be repeated here. In the latter case the court held that PERO did not have authority to hear and decide unfair labor practice charges and to issue remedial orders.

All the defendants filed petitions with PERO seeking to be certified as the exclusive bargaining representative for various designated units of the Authority. Jurisdiction was accepted by PERO, which directed that notices of election be posted. Judge Wick enjoined PERO from proceeding with the elections until the issue of PERC’s jurisdiction is judicially determined. Similar relief was sought by Local No. 326 in the Delaware courts, but those proceedings have been voluntarily stayed by the parties pending the disposition of this appeal.

In determining PERC’s authority and jurisdiction over public employers and employees we are, of necessity, relegated to the statute which created it and the intent of the Legislature as expressed in the act. The act, N. J. S. A. 34:13A-3(c), defines “employer” as including

* * * nublie employers and shall mean the State of New Jersey, or the several counties and municipalities thereof, or any other political subdivision of the State, or a school district, or any special district, or any authority, commission, or board, or any branch or agency of the public service.

Defendants lay great stress upon the term “any authority” appearing in the statute, and argue it was intended to include plaintiff. We disagree. If such were the legislative intent it would have specifically provided for bi-state authorities. Its failure to do so evidences an intent not to include them because it realized that bi-state agencies are controlled by the compacts entered into, and it could not act unilaterally.

The meaning and intent of a statute must be gathered from its objective, the nature of the subject matter and its contextual setting. We must not be guided by a single sentence or member of a sentence, but we should look to the provisions of the whole law, and to its object and policy, as well as statutes in pari materia. State v. Brown, 22 N. J. 405, 415 (1956); State v. Bander, 56 N. J. 196 (1970); Richards v. United States, 369 U. S. 1, 82 S. Ct. 585, 7 L. Ed. 2d 492 (1962).

In using the term “any authority” the Legislature had in mind the myriad authorities created by a municipality, county or state functioning within the State, and over which it has exclusive control. Any other construction would be violative of the interstate compact which gave birth to plaintiff. By the terms of the compact plaintiff became “an agency of government of the State of Delaware and State of New Jersey * * N. J. S. A. 32:11E-1, Art. IY. Plaintiff’s powers are derived “not from any single government but from the authority conferred by all parent governments * * Application of Waterfront Comm'n of New York Harbor, 39 N. J. Super. 33, 42 (Law Div. 1956).

It is also clear that the compact gave plaintiff designated-powers which were to be jointly controlled by both states. The relevant portion of Article YIII of the compact provides, “but no additional duties or obligations shall be undertaken by the authority under the law of either State or of Congress without authorization by the law of both States.”

If PEEC is to have jurisdiction over plaintiff and its employees, such power must be expressly given to it by the Legislatures of Hew Jersey and Delaware, and not inferred by the courts. In short, were we to hold that PEEC had jurisdiction over plaintiff, it would authorize Hew Jersey to impose its will and policies over Delaware contrary to Delaware’s wishes and the terms of the compact. In discussing PEEC’s jurisdiction and power, we must be careful not to intrude on the legislative function in this vitally important field. Justice Francis pointed to this danger in Burlington County Evergreen Park Mental Hospital v. Cooper, supra: at pp. 598-599.

As we said in Lullo v. International Ass’n of Fire Fighters, supra, 55 N. J. 409, Chapter 303, L. 1968 is novel legislation in New Jersey. For the first time the Legislature entered broadly into the field of labor relations in the public sector. Whether PERC should be invested with authority to hear and decide unfair labor practice charges and to issue various types of affirmative remedial orders respecting them is an important policy question. In our judgment, a policy question of that significance lies in the legislative domain and should be resolved there. A court should not find such authority in an agency unless the statute under consideration confers it expressly or by unavoidable implication. In this case, obviously the statute does not expressly confer the power sought to be exercised by PERC. And, in our judgment, the statutory language does not justify a judicial determination that power of such magnitude resides there by implication, [at pp. 598-599]

Bi-state agencies exist by virtue of compacts between the states involved, entered into by their respective legislatures with the approval of Congress. When formed, they become a single agency of government of both states. Their primary purpose is to cooperate in advancing the mutual interests of the citizens of both states by joint action to overcome common problems. We fail to see how either state could enact laws involving and regulating the bi-state agency unless both states agree thereto. To sanction such practice would lead to discord and a destruction of the purposes for which such bi-state agencies are formed. As previously indicated, the New Jersey Employer-Employee Eelations Act, of which PEEC is an integral part, was enacted to enable public employees to organize and to engage in collective negotiations with their public employers. However, New Jersey’s policy in this regard cannot be foisted upon Delaware and its citizens who are employed by plaintiff. As we see it, to accomplish the result argued for by defendants, the States of New Jersey and Delaware must first amend the compact and agree upon the issue whether plaintiff’s employees may organize and engage in collective negotiations, what procedure should be utilized to implement this result, and where and how it should be accomplished. Unless such is done, Delaware and New Jersey could each claim jurisdiction since both states have legislation permitting public employees to organize and negotiate. The confusion and conflicts which would follow if one state assumed jurisdiction, makes it clear that such was never intended by the compact.

We note, without speculating as to the reasons therefor, that Assembly Bill 1058, which is presently up for second reading, has been introduced to exclude bi-state agencies from the definition of employer under N. J. S. A. 34:13A-3(c). Obviously, if the bill is enacted this suit would become moot.

To summarize our conclusions, we hold that plaintiff is not a public employer within the definition of N. J. S. A. 34:13A-3(c), and need not recognize and collectively negotiate with the exclusive bargaining representative selected through PEEC. Since PEEC has no jurisdiction over plaintiff its order to hold elections is reversed. No costs.


author: Labeecque, J. A. D.

text:
    JOHN F. LAHM, JR., PLAINTIFF-APPELLANT, v. STATE OF NEW JERSEY, DEPARTMENT OF THE TREASURY, DIVISION OF PENSIONS, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued October 19, 1970
    Decided November 13, 1970.

      Before Judges Sullivan, Collestee and Labeecque.

      Mr. Richard J. Sauerwein argued the cause for appellant (Mr. John D. Leslie, Jr., attorney).

      Miss Prudence H. Bisbee, Deputy Attorney General, argued the cause for respondent (Mr. George F. Kugler, Jr., Attorney General of New Jersejr).
   The opinion of the court was delivered by

Labeecque, J. A. D.

Plaintiff John E. Lahm, Jr. appeals from a final determination of the Division of Pensions in the Department of the Treasury (Division) holding that he was not eligible for accidental disability retirement.

On March 29, 1965 plaintiff, a custodian employed by the Verona Board of Education (board), fell from a stepladder, striking his back against a row of wooden auditorium chairs. Although he sought treatment that same day from his family doctor, it was not discovered until April 6, 1965 that he had sustained a compression fracture of the lumbar vertebrae. His injury involved damage to the spinal cord and has resulted in permanent paraparesis (paralysis of the lower extremities). He subsequently filed a petition in the Division of Workmen’s Compensation and was awarded a judgment on October 2, 1968 finding him totally and permanently disabled and awarding him 77 weeks of temporary disability at $45 a week and 450 weeks of permanent disability at the same rate. A rider attached to the judgment provided that payments were to continue beyond the 450-week period subject to such physical or educational rehabilitation as might be ordered by the Eehabilitation Commission. Liability for future medical expenses was also ordered.

Plaintiff also instituted a separate action for malpractice against the physician who had treated him following his fall. On October 3, 1969, during the course of trial, that ease was settled for $85,000. On the same day an order was entered in the Division of Workmen’s Compensation modifying the previous judgment to the extent that: (1) respondent board of education, through its carrier, agreed to be responsible for all authorized medical bills incurred by plaintiff up to October 3, 1969; (2) it agreed to waive its right to reimbursement under N. J. 8. A. 34:15-40 for medical expenses and compensation benefits paid to that date (amounting to approximately $30,000), and (3) further payment of compensation benefits (including future medical expenses) was suspended “until a credit of $60,000 had been completely utilized by the petitioner at the rate of $45 per week in respect to compensation benefits and for the aggregate sum of any medical expenses incurred by him for treatment of causally related conditions.” The order further provided that when and if plaintiff exhausted the $60,000 credit, the board and its carrier should “reassume liability” for compensation benefits and payment of medical expenses in the same manner as set forth in the original judgment dated October 2, 1968.

Thereafter, on December 4, 1969 plaintiff made application to the Teachers’ Pension and Annuity Fund for accidental disability retirement on the ground that he had become totally and permanently disabled as the result of his accident. On February 2, 1970 he was advised by letter that his application could not be accepted because he was receiving workmen’s compensation benefits and hence not eligible to apply for retirement until his workmen’s compensation benefits had “terminated.” At the same time the board was notified of its obligation to assume liability for the continued payment of his contributions to the Teachers’ Pension and Annuity Fund. His request for a formal hearing was subsequently denied by the board of trustees and he appeals.

N. J. S. A. 18A :66-32.1, on which the Division based its denial of plaintiff’s application, provides as follows:

a. If any member of the retirement system receives periodic benefits payable under the workmen’s compensation law during the course of his active service, in lieu of his normal compensation, his regular salary deductions shall be paid to the retirement system by his employer. Such payments shall be computed at the full rate of contribution on the base salary subject to the retirement system, just prior to the receipt of the workmen’s compensation benefits. The moneys paid by the employer shall be credited to the member’s account in the annuity savings fund and shall be treated as employee contributions for all purposes. The employer will terminate the payment of these moneys when the periodic benefits payable under the workmen’s compensation law are terminated.
The member for whom the employer is making such payments, will be considered as if he were in the active service and shall be permitted to continue to make contributions to purchase the additional death benefit coverage provided by section 18A:66-53.
b. No application for retirement benefits may be approved by the board of trustees while the member, applying for such benefits, is in receipt of periodic benefits under the workmen’s compensation law. [Emphasis added]

N. J. S. A. 34:15-40, covering the right of employers and their carriers to reimbursement from third parties, provides, in part, as follows:

(a) The obligation of the employer or Ms insurance carrier under this statute to make compensation payments shall continue until the payment, if any, by such third person or his insurance carrier is made.
(b) If the sum recovered by the employee or his dependents from the third person or his insurance carrier is equivalent to or greater than the liability of the employer or his insurance carrier under this statute, the employer or his insurance carrier shall be released from such liability and shall be entitled to be reimbursed, as hereinafter provided, for the medical expenses incurred and compensation payments theretofore paid to the injured employee or his dependents less employee’s expenses of suit and attorney’s fee as hereinafter defined.
(e) If the sum recovered by the employee or his dependents as aforesaid is less than the liability of the employer or his insurance carrier under this statute, the employer or his insurance carrier shall be liable for the difference, plus the employee’s expenses of suit and attorney’s fee as hereinafter defined, and shall be entitled to be reimbursed, as hereinafter provided for so much of the medical expenses incurred and compensation payments theretofore paid to the injured employee or his dependents as exceeds the amount of such difference plus such employee’s expenses of suit and attorney’s fee. [Emphasis added]

In Schmidt v. Revolvator Co., 46 N. J. Super. 232 (Cty. Ct. 1957), it was held that N. J. S. A. 34:15-40 was not applicable in malpractice cases where the settlement received by the injured party was for injury subsequent to and independent of the injury for which compensation was awarded. Compare Bello v. Comm’r of Dept. of Labor and Industry, 56 N. J. 41, 45-50 (1970). We are told that the failure of the board’s carrier to seek reimbursement out of the third-party settlement for some $30,000 it had already paid in benefits and medical expenses, and the agreement to modify the compensation judgment, were the result of efforts to compromise the issue posed by the decision in Schmidt.

The issue before us is a narrow one. Plaintiff contends that, since the order of October 3, 1969 modifying his compensation judgment, he has been receiving no “periodic benefits” under the Workmen’s Compensation Act. On behalf of the Division it is contended that plaintiff is currently receiving the equivalent of periodic payments of compensation and will not be eligible for retirement until termination of his employer’s liability to payment of compensation.

Plaintiff was 21 years old at the time of his accident. The facts as to his physical condition are not in dispute. His lower extremities are paralyzed, he lacks control of bladder and bowel functions and is confined to a wheelchair. The prospect is that he will be so confined for the rest of his life. The Division determined that he will not be entitled to retire until his right to compensation benefits “terminates.” Since workmen’s compensation benefits continue indefinitely beyond the initial 450 weeks, by virtue of the decision below the time for his retirement will never come!

We incline to the view that the Legislature, in enacting N. J. S. A. 18A:66-32.1(b), never intended to preclude a retirement for disability under the circumstances here present. N. J. S. A. 18A:66-32.1(b) had its inception in L. 1966, c. 218, § 22. Prior to that time it had been held that, with certain exceptions not here relevant, a public employee receiving workmen’s compensation payments for physical disability which arose out of and in the course of his employment with the municipality might not also receive a pension. DeLorenzo v. Newark, 134 N. J. L. 7 (E. & A. 1946). Compare Eckert v. New Jersey State Highway Dept., 1 N. J. 474 (1949); In re Smith, 108 N. J. Super. 315 (App. Div. 1970). As noted, the statute precludes, not the receipt of pension payments, but the approval of an application for a pension while the applicant is in receipt of periodic benefits under the Workmen’s Compensation Act. It is the essence of the scheme of the Workmen’s Compensation Act that compensation payments are in lieu of wages and are to be received by the injured employee in the same manner in which wages are ordinarily paid. N. J. S. A. 34:15-25; Verra v. Mayor, etc. of Hoboken, 70 N. J. Super. 422, 426 (App. Div. 1961). The “periodic benefits” referred to here mean no more than the weekly payments of compensation payable to an injured employee under the Workmen’s Compensation Act.

Prior to the enactment of N. J. S. A. 18A :66-32.1 (b) the Workmen’s Compensation Act had contained a provision, now N. J. 8. A. 34:15-43, withholding benefits normally available to public employees under the act from such of them as were in receipt of benefits under an accident disability retirement pension by reason of the same employment and disabling injuries. That section has been strictly construed and in Swan v. Bd. of Trustees of Teachers’ Pension Fund, 85 N. J. Super. 226, 231 (App. Div. 1964), it was held that its obvious intent was to bar a workmen’s compensation claim against the employer when a disability pension had been accepted for the same accident. We are convinced that here the statutory intent was to preclude a pension award while the employee was receiving or entitled to receive periodic compensation benefits for the same accident.

Plaintiff asserts, and we agree, that he is no longer receiving Aperiodic benefits” under the Workmen’s Compensation Act. The monies received in settlement of his third-party suit did not constitute such periodic benefits, but represented damages to which he was entitled for the injury he sustained by reason of the doctor’s malpractice. Since, under the modifying order, he was not required to reimburse his employer’s carrier, those monies (in one lump sum) were his to do with as he pleased. The rationale underlying the cessation of compensation payments when there is a recovery against a third-party defendant is not that the third-party defendant has assumed payment of the compensation benefits which would otherwise be due the employee from his employer but, rather, that the employer, through its carrier, has ceased to be liable to payment of such benefits, except to the extent that they may exceed the amount of the third-party recovery, after allowance for counsel fees and costs. Here, at the $45 per week provided in the order modifying the judgment, the likelihood that the weekly compensation payments would be resumed by the employer’s carrier within 25 years was practically nonexistent. If the $60,000 were further reduced by payments of $300 annually for medical expenses, the foregoing time would be lessened by about three years. During this interim the board would be required to assume and continue the contributions normally due from plaintiff to the Teachers’ Pension and Annuity Eund — contributions towards the retirement to which he was already entitled but for the possibility of payments of compensation at the end of 25 years — and which he was destined never to enjoy.

We hold that, in the context of the facts before us, since defendant was not in receipt of “periodic benefits” under the Workmen’s Compensation Act within the intendment of the statute, his petition for accidental disability retirement should have been granted. His retirement would not have precluded his entitlement to such future medical, surgical and hospital services as were required to be furnished by his employer under the Workmen’s Compensation Act, N. J. S. A. 34:15-43. Detlefs v. Westfield, 104 N. J. Super. 447, 451-452 (App. Div. 1969).

Reversed and remanded for further proceedings in accordance with this opinion.


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

text:
    GEORGE T. REAM ET AL., PLAINTIFFS-APPELLANTS, v. WILLIAM KUHLMAN ET AL., DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued September 22, 1970 — Supplemental materials filed September 25, 1970, October 17, 1970, October 23, 1970 and November 2, 1970—
    Decided November 9, 1970.

      Before Judges Lewis, Matthews and Mintz.

      Mr. William Miller argued the cause for appellants.

      Mr. John 0. Sitzler, Jr. argued the cause for respondents (Messrs. Mathews <& Sitzler, attorneys).
   The opinion of the court was delivered by

Lewis, P. J. A. D.

Plaintiffs, five residents and taxpayers of the Township of Evesham (township), on behalf of themselves and all other similarly situated taxpayers, appeal from that part of a judgment of the Chancery Division entered on July 9, 1970 denying their demands for a declaration that Henry W. Haines is the duly appointed tax assessor of the township for the term prescribed by N. J. S. A. 40:46-6.2.

Essentially, the background facts are uncontroverted. In November 1968 Haines was elected tax assessor of the township under the then existing township committee form of government. Thereafter, effective July 1, 1969, the electorate of the township duly adopted Council-Manager Plan B of the Optional Municipal Charter Law, L. 1950, c. 210, N. J. S. A. 40:69A — 1 et 'seq., commonly known as the Faulkner Act. On that date the office occupied by Haines under the pre-existing form of government was abolished pursuant to N. J. S. A. 40:69A — 207. By resolution 12C — 69 (July 1, 1969) the township council (council) availed itself of the permissive provision of section 207 empowering it to appoint interim municipal officers pending the adoption of reorganizational ordinances, and carried over all officers of the former government, including Haines as tax assessor, for the statutory 30-day transitional period. Subsequently, by resolutions 19C-69 (July 28, 1969) and 26C-69 (September 2, 1969), the terms of the officers and employees of the township were further continued for periods of 30 days and 15 days, respectively.

On October 21, 1969 the township adopted an administrative code (ordinance 20-69), which in § 1-8.3 provides that “[t]he division of Tax Assessments shall consist of a board of three members to be appointed by council and hold office for two years; the first of such appointments to be for one year and the other [sic] for two years. * * *” On the same day, by resolution 42C-69, council appointed Haines to the board of tax assessors for a one-year term commencing July 1, 1969. No further appointments were made until February 17, 1970, when council designated John Howarth and James Hogan as members of the board, each for a term of two years.

Haines was recognized as the tax assessor by Acting Manager Inez Bochis and by Thomas Gramigna, who was appointed township manager (manager) effective September 8, 1969. On or about October 1, 1969 Gramigna, in his official capacity as manager, signed and issued to Haines an identification card certifying him as “Township Taxes [sic] Assessor.” Haines was paid for performing the duties of that office, which included the preparation of a complete assessment list for 1970 and the filing of a duplicate thereof with the Burlington County Board of Taxation. This list contained increases in the assessed valuation of 608 properties which Haines found to be underassessed, amounting to about $2.7 million, or about 5% of the tax roll of the township.

Thereafter, following the receipt of 253 letters from taxpayers concerning these assessments, the Burlington County Board of Taxation, on its own initiative, conducted a hearing on February 11, 1970 at which the township appeared by its attorney to contest Haines’ assessments. The testimony at the hearing indicated that the reassessed properties, which had previously been on the tax rolls at an average assessment ratio of 67% had been raised to 86% of true value to conform generally with the assessments throughout the township.

On March 18, 1970 the county tax board unanimously certified Haines’ tax list and assessor’s duplicate. Following this action, council indicated it would challenge the validity of the assessments in an appeal to the Division of Tax Appeals. Moreover, the mayor publicly invited taxpayers to join in the appeal or to contest their assessments individually.

In April 1970 plaintiffs initiated the instant proceedings, seeking, among other things, declarations that § 1-8.3 of the 1969 code was invalid and that Haines was entitled to serve a four-year term as tax assessor, and injunctive relief restraining council from acting under the aforementioned section, restraining the township’s appeal from the county board”s certification of Haines’ assessments and restraining Hogan and Howarth from assuming any duties of the office of tax assessor.

On the return of an order to show cause, and on cross-motions for summary judgment, the judge of the Chancery Division delivered an oral opinion on July 2, which is embodied in an order of July 9, 1970. He declared § 1-8.3 invalid because it contravened the provision of N. J. S. A. 40:46-6.2 requiring a four-year term for tax assessors, and held all appointments made thereunder void. Furthermore, he ruled that the township’s appeal from the county board’s certification was ultra vires and an unlawful expenditure of public funds. Although the court denied plaintiffs’ demand to declare Haines’ status as the duly appointed tax assessor, it held that the appointments under § 1-8.3 were invalid and that, inasmuch as Haines was the former assessor, he should continue as temporary assessor until the position was filled.

On July 2, 1970 Richard Messenger, having replaced Gramigna as manager, appointed Howarth, Hogan and Edward Bligh to four-year terms as tax assessors beginning July 1, 1970. In addition, he notified Haines of these appointments and requested that he “return all books, records and other Town property” in his possession. Within a week thereafter, both council and manager appointed Hogan as sole tax assessor for a four-year term. On July 22, 1970 council amended its administrative code (ordinance 15-70), changing § 1-8.3 as follows: “The Division of Tax Assessments shall consist of a board of three members to be appointed by council and hold office for the term of four (4) years * * This provision was qualified thusly: “The appointments of the Assessors in their initial term shall be appointed to one (1) year, two (2) years and three (3) years respectively * * On the same date, council again appointed Howarth, Hogan and Bligh to the board of tax assessors.

Plaintiffs were unsuccessful in their attempts before the Chancery and Appellate Divisions and our Supreme Court to obtain a stay of that portion of the judgment under review which denied Haines’ legal status as a tax assessor.

To facilitate a full consideration of the pending controversy, we entered, at oral argument, a consent order adding Haines as a party plaintiff-appellant, permitting plaintiffs to further amend their complaint to include an allegation challenging the validity of § 1 — 8.3 of the 1970 code and allowing the record to be supplemented by the addition of an affidavit by Haines and an answering affidavit by Gramigna. At the court’s request, counsel has submitted supplemental memoranda.

When the involved fact pattern of this case and the several contentions of the respective parties, augmented by extensive arguments of counsel, are brought into proper focus, there emerge three critical issues for resolution: (1) Who has the power to appoint the township tax assessor? (2) Did the township create a valid board of tax assessors? (3) Was Haines appointed for a four-year statutory term within the meaning of N. J. S. A. 40:46-6.2? We shall consider these questions seriatim.

I

Who has the Power to appoint the Township Tax Assessor

Article 10 of the Faulkner Act, N. J. S. A. 40:69A-99 to 103, “Council-Manager Plan B,” provides in substance that a municipality adopting such form of government shall be governed by its provisions together with those of Article 2, N. J. S. A. 40:69A-26 to 30, a general article entitled “Incorporation and Powers”; portions of Article 9 N. J. S. A. 40:69A — 86 to 98, dealing with council and manager under “Council-Manager Plan A”; and Article 17, N. J, S. A. 40:69A-150 to 210, containing “Additional Provisions Common to Optional Plans.” By the terms of N. J. S. A. 40:69A-26‘, such a municipality is governed by “all applicable provisions of general law.” N. J. S. A. 40 :69A~28 defines “general law” to mean “any law or provision of law, not inconsistent with this act, heretofore or hereafter enacted which is by its terms applicable or available to all municipalities,” plus certain enumerated laws not here germane.

The Legislature has not stated with specificity, either in the Faulkner Act or by general law, that “tax assessors” in council-manager municipalities shall be appointed in a given manner. The legislative intent, however, appears to be readily ascertainable from the pertinent statutes when read in pari materia and considered with reference to related legislative history.

The appointing power of the municipal manager is set forth in N. J. S. A. 40:69A-95, which in relevant part provides :

The municipal manager shall:

(a) be the chief executive and administrative official of the municipality; * * * * # * sfc $
(c) appoint and remove a deputy manager if one be authorized by the council, all department heads and all other officers, subordinates, and assistants for whose selection or removal no other method is provided in this article [§§ 40:69A-81 to 98] * * *. [Emphasis added]
This section should be considered in conjunction with the language of N. J. S. A. 40:69A-88 and 89. The former reads:
All powers of the municipality and the determination of all matters of policy shall be vested in the municipal council, except as otherwise provided l)y this act [§§ 40:69A-1 to 210] or by general law. * * * [-Emphasis added]

The latter states:

The municipal council shall appoint a municipal manager and a municipal clerk. Both of such offices may be held by the same person. The council may provide for the manner of appointment of a municipal attorney, any planning board, zoning board of adjustment or personnel hoard in the municipality, and may create commissions and other bodies with advisory powers. * * * [Emphasis added]

A comparison of these sections demonstrates that, except for the appointive power lodged in the council relating to specified nonadministrative personnel, the general power of appointment as to municipal officers is reposed in the manager.

Defendants argue that council is expressly empowered to appoint a “personnel board” and that such term is sufficiently broad to include a board of tax assessors and, by analogy, a single tax assessor. We disagree. Absent a legislative definition of the quoted words, they should be given their ordinary and well-understood meaning. See Fahey v. Jersey City, 52 N. J. 103, 107 (1968). The language of N. J. S. A. 40:69A-89 is substantially the same as that contained in Article 2, § 4^9 of the proposed Optional Charter Plan study draft that preceded the adoption of the Faulkner Act. In a comment respecting §§ 4r-8 to 11 of that article, the New Jersey Commission on Municipal Government stated:

The above amendment oí 40:81-11 of the Revised Statutes follows the Model City Charter. The model also provides that the council shall appoint members of the personnel board, the planning commission and the zoning board of appeals. [State of New Jersey, Preliminary Statement of The Commission on Municipal Government, at 46 (1948) (hereinafter cited as Commission) ; emphasis added]

Reference to the Model City Charier in a document prepared by the National Municipal League Committee on Revision of The Model City Charter reveals the nature and scope of the powers and duties of a “personnel board.” In short, it is empowered and required to (1) “Advise the council and director” on problems concerning personnel administration; (2) “Advise and assist the director” in fostering educational, civic, professional and employee organizations; (3) make any investigations concerning the administration of personnel in the municipal service; (4) hear certain appeals of officers or employees and report findings and recommendations to the city manager, and (5) perform such other duties “with reference to personnel administration” as the council may require by ordinance. National Municipal League Committee on Revision of The Model City Charter, Model City Charter (5th ed. 1941) Art. VII, § 116 at 48-49.

Moreover, it is a fundamental rule, sometimes described by the maxim noscitur a sociis, that in the construction of statutes associated words and phrases explain and limit each other. Their meaning, when in doubt, may be ascertained by a consideration of companion words and phrases. See McCaffrey, Statutory Construction, § 14 at 40-41 (1953). It is significant that under the Eaulkner Act the municipal council may appoint a planning board and zoning board of adjustment, which are gmssi-policy-making agencies, and it may create commissions with ádvisory power. The authority to appoint a “personnel board” is consistent with a legislative intent, absent express statutes authorizing the contrary, to limit councils appointive power to policy-making and advisory agencies. In this regard, it should not be overlooked that the Council-Manager Plan of the Eaulkner Act adheres throughout to the basic theory of the manager form — that there should be a distinct separation between policy determination and administration. Commission at 17. See also New Jersey Taxpayers Association, New Jersey’s Optional Municipal Charter Law (1964), where it is stated:

The Council-Manager Plan is the product of the best thinking in the field of municipal government. Lines of authority are clear-cut, responsibility is fixed and power is commensurate with responsibility. Administrative power is placed in the hands of a professionally-trained manager who is thoroughly grounded in fiscal, administrative, personnel and other practices essential for effective management. Policy-making and the review of administrative activity belong to the Council, [at 74]

It is thus apparent that a “personnel board,” within the contemplation of the cited enactment, does not embrace the office of tax assessor or a board of tax assessors but, rather, pertains to an agency in the nature of an advisory board created by council to aid in the formulation of policy-making determinations and the proper administration thereof, as the same may relate to the officers and employees of the municipality.

We are cited to Jordan v. Zidel, 40 N. J. 244 (1963), and Clifton v. Zweir, 36 N. J. 309 (1962), upon which defendants heavily rely. The former decision involved commissioners of a parking authority. Such an administrative agency has qwasi-policy-making powers and is distinguishable from a board of tax assessors. Additionally, the parking authority law, N. J. S. A. 40 :llA-4, expressly provides that the governing body shall appoint the commissioners.

In Zweir the issue was whether an elected mayor or manager had the power to appoint members of the planning board. The court said:

* * * The new language, in light of the history, indicates choice of the reasonable criterion that municipal board members who perform policy-making and gMOsi-judicial functions, rather than mere administrative duties, should be appointed by an official who came into government by vote of the people at large and who must stand for re-election at the end of a definite term. This would be the unquestionable result under all except the manager form and we think it was equally meant here. * * * [36 N. J. at 320]

The last-quoted sentence appears to be dictum and does not negate a conclusion that under N. J. S. A. 40:69A-89 and 95 the appointment of a tax assessor is to be made by the municipal manager.

The Zweir case dealt with a municipality operating under a 1923 manager form of government. There, the court observed that the Municipal Manager Act (R. 8. 40:89~10) contained no provision dealing with agencies, like the planning board, which have policy-making functions or quasi-ju.dici'el powers. Here, under the Faulkner Act, specific provisions respecting such agencies have been made. In fact, N. J. S. A. 40:69A-89 requires that such board members be appointed by the municipal council. Moreover, N. J. S. A. 40:69A-98 provides that laws conferring powers on the mayor or other executive head are to be construed as meaning municipal manager.

The manager is the chief executive and administrative officer of the municipality, and the statutory sections concerning appointments must be construed in that light. Townsend v. Pequannock Tp., 47 N. J. Super. 294, 301 (Law Div. 1957). In this respect the court in Zweir noted that the 1923 Municipal Manager Act was to be contrasted with the Faulkner Act under which council may provide for the manner of appointment of any planning board, zoning board of adjustment or personnel board. The court further observed that according to the 1923 act council was given express power to appoint the manager, auditor, treasurer, clerk, attorney, advisory boards and assessors. See N. J. S. A. 40:81-11, 40:81 — 13 and 40:81-16. The 1923 act (L. 1923, c. 113) vested all "administrative, judicial and legislative powers and duties,” except as otherwise provided, in council.

In short, that whole municipal scheme was changed by the Faulkner Act. Instead of council appointing policy-making and administrative officers, under the Faulkner Act it may only make appointments authorized by general law or enumerated in N. J. S. A. 40:69A-89, which do not include a tax assessor, board of tax assessors or any other board or commission whose duties and responsibilities are not essentially policy-making or advisory.

It is noteworthy that 22 municipalities of the State have adopted a Council-Manager Plan under the Faulkner Act. We have been advised by letter from counsel for plaintiffs, in response to inquiry from the Bench at oral argument, that in each of those municipalities, except one, the tax assessor (and multiple assessors in two instances) has been appointed by the municipal manager. While such empirical data is not binding upon the judiciary, it is well-established by a wealth of authorities that “resort may be had to long usage and practical interpretation in construing statutes to ascertain their meaning, to explain a doubtful phrase or to illuminate any obscurity.” Lane v. Holderman, 23 N. J. 304, 322 (1957); accord, In re Glen Rock, 25 N. J. 241, 246 (1957); In re Petition of Public Service, etc., 103 N. J. Super. 505, 513 (App. Div. 1968). See generally, 2 Sutherland, Statutory Construction (3d ed. 1943), § 5106, ‘Unofficial interpretation,” at 518-520.

We hold that in a Council-Manager Plan B municipality the appointive power over a tax assessor or members of a board of tax assessors is vested in the municipal manager. N. J. S. A. 40 :69A-95.

II

Was a valid Board of Tax Assessors created

Section 1-8.3 of the 1969 code abortively attempted to create a three-man board of tax assessors; it is defective in several particulars: the members of the board are to be appointed by the council instead of the manager; the terms of the appointees conflict with N. J. S. A. 40:46-6.2, and the staggered term provision is unsupported by any legal authority, statutory or otherwise. The adjudication of the Chancery Division is based on its opinion that the ordinance “is invalid in its entirety since it only provides a term of office for a tax assessor of two years contrary to N. J. S. A. 40:46-6.2. * * * Because of this decision it is not necessary to decide whether the power to appoint rests with the Towuship Council or the Township Manager.” We do not entirely share that view. See Newman v. Fair Lawn, 31 N. J. 279, 288 (1960), discussed infra.

The challenged section of the 1969 code, however, is fatally defective in that it requires the assessors to be appointed by the council instead of the manager and calls for the staggering of terms in an impermissible manner. Cf. N. J. S. A. 40:46-6.2(a). The 1970 code did not cure all of these defects and it is likewise invalid. Accordingly, the numerous efforts of council, to constitute by various appointments a full membership on the respective boards it improperly attempted to create, were a nullity.

Ill

Was Haines Appointed Eor Statutory Term

When a taz assessor or a member of a board of tax assessors is appointed, his designation or ratification must stem from a statutory authorization to make such appointments. The Eaulkner Act, as previously noted, makes no mention of tax assessors; it is silent as to their selection or removal. There are, however, applicable provisions of general law which are controlling. N. J. S. A. 40:46-6.2 provides that “[t]he term of persons holding the position or office of ‘tax assessor’ in any municipality of this State is fixed at four years.”

This court recently had occasion to consider that statute in Madison Tp. v. Fiore, 112 N. J. Super. 23 (App. Div. 1970), where the municipal manager of the township, a Plan E. Eaulkner Act municipality, on February 22, 1966 appointed Fiore as tax assessor without stating the length of his term. Fiore was dismissed on February 11, 1970. The trial court held that the statute did not apply to Plan E municipalities. We reversed and declared that Fiore had a four-year term ending June 30, 1970. After citing Clifton v. Zweir, supra, for the proposition that “[¡¡Judicial resolution of such matters must be guided by only one principle: legislative intent” (36 N. J. at 322), we concluded that there can be no doubt that when the Legislature adopted the 1938 legislation “it intended that assessors in all municipalities thereafter have four-year terms, for the statute said so.” (112 N. J. Super. at 26) We further observed that the Legislature made its intent doubly plain by providing in N. J. S. A. 40:46-6.3 that 40:46-6.2 shall “be construed and applied to include tax assessors in all municipalities of this State, irrespective of the form of government under which such municipalities may operate * * *” (At 26)

It follows that a municipality is without authority to establish any other term, either longer or shorter, than that fixed by the Legislature, and that once a valid appointment has been made, the office, in contemplation of law, has been filled for the statutory period.

In Gillson v. Heffernan, 40 N. J. 367, 375 (1963), a case dealing with the statutory term of planning board members, the court, adopting the rationale it had previously enunciated in Newman v. Fair Lawn, supra, stated that “[ajppointments for less than the fud legal term, as was the case here, could not give the term a different duration.” Newman overruled that part of Salter v. Burk, 83 N. J. L. 152 (Sup. Ct. 1912), which held void an appointment to an office of a different term from that set by statute and applied the principle exposited by Justice Cooley in Stadler v. City of Detroit, 13 Mich. 346 (Sup. Ct. 1865), that the appointment was for the full legal term, notwithstanding the attempt by the appointive authority to give it a different duration. 31 N. J. at 288. The Newman court approvingly cited, among other authorities, Dodsworth v. Mayor of Medford, 308 Mass. 62, 30 N. E. 2d 835 (Sup. Jud Ct. 1941). Cf. Beirne v. Gangemi, 74 N. J. Super. 557 (App. Div. 1962), certif. den. 38 N. J. 307 (1962).

The reasons for insulating a tax assessor with a fixed term of office are manifold. His office, an integral part of our state, county and municipal governments, is chargeable with the administration of a statutory system relating to the levy, assessment and collection of property taxes. He is an agent of the Legislature, and his discretionary judgment is reviewable only through the administrative and judicial processes provided by law. Although his jurisdiction js local, his powers and duties are prescribed by the Legislature, and it is of paramount importance that the integrity of his office be in no way diluted by local interference.

In Arace v. Irvington, 75 N. J. Super. 258 (Law Div. 1962), it was decided that the commissioners of the Town of Irvington had no right to challenge the tax assessor’s methods in evaluating and assessing properties, and that anyone aggrieved or discriminated against was provided an appropriate method of appeal. It was there emphasized that the tax assessor, in exercising the gwasi-judicial functions of his office, must feel free to make an independent judgment. See also Ridgefield Park v. Bergen Cty. Bd. of Taxation, 61 N. J. Super. 170 (Law Div.), rev’d on other grounds 33 N. J. 262 (1960), app. dism. 365 U. S. 648, 81 S. Ct. 834, 5 L. Ed. 2d 857 (1961); 4 Cooley, Taxation (4th ed. 1924), § 1601, at 3181.

In recent legislation, as illustrated by N. J. S. A. 54:1-35.25 and N. J. S. A. 40:46-6.2(a), the Legislature has evinced its intent and continuing concern for the independence of assessors.

There are no statutory provisions for “temporary,” “holdover” or “interim” appointments but, to the contrary, under N. J. S. A. 40 :46-6.2 the four-year term begins on July 1 of the year in which the appointment is made. In the event a vacancy occurs, due to any cause other than the expiration of the term of office, it “shall be filled for the unexpired ierm only.” N. J. S. A. 40:46-15. Also, if there is no qualified assessor in office on the first day of October, the Governor is empowered to intervene and, if need be after ten days’ notice, to commission an assessor to perform the duties of that office. N. J. S. A. 40:46-16.

The procedural carry-over provisions incident to the transition of government upon the adoption of a Eaulkner Act plan, as provided in N. J. S. A. 40 :69A-207, do not alter the substantive powers and obligations of the municipality. While all offices and terms of office (exceptions not here material) are abolished, the grace period for adopting appropriate ordinances to implement the new government is limited to 30 days.

The office of tax assessor, being legislative in origin, does not depend upon a municipal ordinance for its creation; and because no provision was made for a board of assessors during the organizational grace period, the continuance of the statutory office of tax assessor beyond that period constituted it a de jure office. Compare Myers v. Cedar Grove Tp., 36 N. J. 51 (1961). Also note the procedure followed in McCartney v. Franco, 87 N. J. Super. 292 (App. Div. 1965), where a second-class city changed its form of government under the Eaulkner Act to a Mayor-Council Plan C. On the effective date of the plan, the city council, by ordinance, continued in existence all prior departments, boards and offices with the sole exception of the board of assessors and adopted a resolution to provide for the temporary organization of the city government pending the preparation of an administrative code. On the same day plaintiff was advised that his services as an assessor wore terminated. The subsequently adopted code established an office of city assessor. See also Dobbs v. Pierce, 76 N. J. Super. 64 (Law Div. 1962). Here, there is nothing in the record which affirmatively indicates that the township intended to abolish the office of tax assessor and create a board of tax assessors until nearly three months after the organizational grace period.

Inasmuch as the council made a number of short-term appointments of Haines as the assessor, the question as to the validity of his appointment for a statutory term need only be determined with reference to the actions of the acting manager and the manager who succeeded her, bearing in mind our determination that the appointive power is vested with the municipal manager.

Bochis, the township clerk and acting manager from July 1 to September 8, 1969, acknowledged in her deposition that she had “no reason to question” the legality of Haines’ status as assessor, and when asked if she approved of his appointment replied, “At that time, yes.” Her successor, Manager Gramigna, testified on deposition:

Q. Beginning September 8, 1969 with your appointment, prior to this litigation did you at any time question the title to office of Henry Haines, bis right to serve as assessor?
A. No. Mr. Haines was the assessor when I arrived here. The adoption of the administrative code in my opinion did not change his status as an assessor, but he became one member of a three-man board. He was the first man appointed.

It is undisputed that Haines exercised all the duties and responsibilities of the tax assessor’s office from July 1, 1969 to February 17, 1970, when Howarth and Hogan were appointed to the invalid board of tax assessors. During that period the managers repeatedly listed him on the public payroll, approved of the payroll, and publicly acknowledged him as assessor in the listing of municipal officials.

As already noted, on or about October 1, 1969 there was issued to Haines, under the signature of Gramigna as township manager, an identification card certifying that “Henry W. Haines is a Township Taxes [sic] Assessor.” Then, too, on March 18, 1970 the county board of taxation recognized the official capacity of Haines when it unanimously certified the 1970 duplicate assessment list he had prepared and filed with the board.

There is decisional support for the theory that the conduct of the township managers constituted an approbation of Haines’ status as tax assessor so as to validate his appointment. See Barkus v. Sadloch, 20 N. J. 551 (1956), where our Supreme Court held that the inappropriate appointment of a city employee was subsequently validated by council’s acts in approving payrolls upon which the employee’s name appeared. In this vein, see also Cetrulo v. Byrne, 31 N. J. 320, 330 (1960), and Kovalycsik v. Garfield, 58 N. J. Super. 229, 239 (App. Div. 1959). Furthermore, there exists a persuasive analogue buttressing Haines’ appointment as tax assessor in the language of Chief Justice Marshall in Marbury v. Madison:

* * * if an appointment was to be evidenced by any public act, * * * the performance of such public act would create the officer * * . [5 U. S. 137, at 156, 1 Cranch 137, at 156, 2 L. Ed. 60, at 67 (1803)]

Note, Whitney v. Van Buskirk, 40 N. J. L. 463, 470 (Sup. Ct. 1878), and see 42 Am. Jur., Public Officers, § 100 at 957.

Here, the record is barren of any suggestion that the municipal managers at any time prior to February 17 questioned either Haines’ qualifications or authority, or the regularity of his appointment. Eather, their actions plainly demonstrated not only acquiescence in and acknowledgment of his appointment, but an open and unequivocal approval and ratification thereof. Consequently, Haines’ status as a tax assessor is that of a de jure officer occupying a de jure office. It is therefore unnecessary for us to consider the possible effects of his public acts had he merely been a de facto officer. Cf. Kovalycsik v. Garfield, supra; Bernard, Public Officials: Elected and Appointed, “De Facto Officers,” at 70-72 (1968); Constantineau, A Treatise on The De Facto Doctrine, §§ 203 and 204, at 285-288 (1910), and note generally, §§ 21 and 22, at 30-32.

In the circumstances, we conclude that, after July 1, 1969, Haines was effectively appointed township assessor and that, notwithstanding the efforts to limit the duration of his term by temporary or short-term appointments, the statutory term of four years must govern. To hold otherwise would do violence to the rationale of the Newman case as applied to N. J. S. A. 40:46-6.2 and the legislative intent underlying the adoption of that statute. Thus, in addition to the appointments to the invalid boards already discussed, the attempts by council and Manager Messenger, in July 1970, to replace Haines by appointing Hogan as single tax assessor for a term of four years were also ineffective.

In reaching this conclusion, we are mindful of defendants’ argument that, as stated in Downey v. Board of Education, Jersey City, 74 N. J. Super. 548, 554 (App. Div. 1962), “[t]he plain and all-pervading intent of the Faulkner Act. is to give a municipality which adopts one of its optional plans a new broom.” It is equally important, however, that a municipality embarking on such new form of government should use the right end of the “broom.”

The present record is replete with overtones of local pressure and examples of erratic maneuvering which suggest that the directional thinking of the township had as its ultimate objective either Haines’ replacement as tax assessor or a diminution of his duties and responsibilities by the creation of a three-man board of tax assessors. This is incompatible both with the spirit and intent of the Faulkner Act and the applicable general law. That is not to say, however, that a municipality is precluded in a proper circumstance from replacing the office of a single tax assessor with a board of tax assessors. See, for example, the case of McCartney v. Franco, supra, 87 N. J. Super. at 298, where this court remarked that the Faulkner Act does not take away the established right of a municipality to abolish offices or positions “when the action is adopted in good faith to effect economy, provide greater efficiency or otherwise promote the public interest.” See also, N. J. S. A. 40:69A-90.

That part of the judgment of the Chancery Division before us on appeal is reversed and the matter is remanded for the entry of an appropriate judgment consistent with this opinion.

       “At 12 o’clock noon on the effective date of an optional plan adopted pursuant to this act, all offices then existing in such municipality shall be abolished and the terms of all elected and appointed officers shall immediately cease and determine; [exceptions not here relevant] * * *
      Provision for officers and for the organization and administration of the municipal government under the optional plan may be made by resolution pending the adoption of ordinances, but any such resolution shall expire not later than 30 days after the effective date of the optional plan. * * *”

         Fitzgerald’s Legislative Manual 657-660 (1970).

         Letter of September 24, 1970 indicated that the source of information was personal contact by telephone on September 23, 1970 and available administrative codes. Accompanying that letter was a photocopy of pages 7 and S of the Assessors’ Handbook, published hy the Division of Taxation of the Department of the Treasury. Section 103.1 reads in part: “About three-quarters of New Jersey’s taxing districts have single assessors, while the rest use boards. Of the individuals acting as municipal assessors throughout the state, about two-thirds are appointed and one-third elected.” Table 3 of that work, entitled “Method of Selecting Assessors in New Jersey Municipalities,” lists the forms of governmental organization, and as to Council-Manager Form (1950 law) states: “Single assessor or board of assessors appointed by manager. (N. J. S. A. 40:69A-95).”

       The following Statement is appended to Assembly Bill No. 316 which was enacted into law effective June 16, 1938, N. J. S. A. 40:46-6.2 (L. 1938, c. 386, § 1) :
      The purpose of this bill is to fix the term of tax assessors for a period commensurable with the type of work, to conform the term to other analogous positions, and to make it possible for municipalities to be assured the benefit of being able to retain for a reasonable period persons who have acquired experience in the work, so that too rapid terminations of tenure for causes outside the work itself would be less possible. The bill is in the interest of more efficient procedure in the making of tax assessments, and would inure to the general public benefit in that regard.

       Noto, e. g., n. 4, supra, at 188.

         N. J. S. A. 54:1-35.25, (L. 1967, c. 44 § 1), provides for the qualification, examination, certification and tenure of assessors. See references to that statute in Madison Tp. v. Fiore, supra.

        N. J. S. A. 40:46-6.2(a), (L. 1968, c. 35, § 1), effective January 1, 1969, permits a municipality “in which there exists a board of assessors” to rearrange the terms of successor members on a one, two or three-year basis; but thereafter their successors shall be appointed for four years.
      Why there should be a distinction between pre-existing boards and newly-created boards is not apparent. “Some legislative clarification might well be suggested to be indicated.” Townsend v. Pequannock Tp., supra, 47 N. J. Super, at 305.


author: Labkecqtje, J. A. D.

text:
    NEW JERSEY INSURANCE UNDERWRITING ASSOCIATION, APPELLANT, v. ROBERT L. CLIFFORD, COMMISSIONER OF INSURANCE OF THE STATE OF NEW JERSEY, RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued September 28, 1970 — Supplemental briefs filed October 2 and October 9, 1970
    Decided November 10, 1970.

      Before Judges Stjllivae, Collester and Labkecqtje.

      Mr. Charles H. Hoens, Jr. argued the cause for appellant (Messrs. Lum, Biunno & Tomplcins, attorneys).

      Mrs. Virginia Long Annich, Deputy Attorney General, argued the cause for respondent (Mr. George F. Kugler, Jr., Attorney General of New Jersey, attorney).
   The opinion of the court was delivered by

Labkecqtje, J. A. D.

Appellant New Jersey Insurance Underwriting Association (Association) appeals from a directive by the Commissioner of Insurance (Commissioner) dated June 24, 1970 amending the Association’s plan of operation to require that vandalism and malicious mischief insurance endorsements be made available on fire policies issued by its members after July 15, 1970, and requesting that prior to August 1, 1970 it present a proposal to the Commissioner for the writing of burglary and theft coverage. Notice of appeal was filed promptly and, though a stay of the directive was denied, the matter has been accelerated.

By L. 1968, c. 129, now N. J. S. A. 17:37A — 1 et seq., the Legislature enacted a mandatory program of property insurance coverage to be carried out under the supervision and control of the then Commissioner of Banking and Insurance, now the Commissioner of Insurance. That statute, which became effective July 2, 1968, created the New Jersey Insurance Underwriting Association, (plaintiff herein) to carry out a program of property insurance on behalf of applicants unable to procure such insurance by themselves by reason of environmental factors beyond their control. Under the statute the Association was made up of all insurers authorized to writé and engaged in writing property insurance on a direct basis within the State. N. J. S. A. 17:37A-3. The Association was required, within 90 days after the statute went into effect, to formulate plans for carrying into effect the statutory mandate, and to submit them to the Commissioner for review, approval, disapproval or amendment by him. N. J. S. A. 17:37A — 7.

The program was to cover “essential property insurance,” as defined in the statute. N. J. S. A. 17:37A-8. The statute also authorized the Commissioner to do all things necessary to enable the State, and any insurer participating in any plan approved or issued by him, to fully participate in any federal program of reinsurance “which may be hereafter adopted for purposes similar to the purposes of this act.” N. J. S. A. 17:37A-25. One such program, designed to support state E. A. I. R. (Eair Access to Insurance Requirements) plans, was that later provided by 12 U. S. C. A. § 1749bbb et seq. (1968) (the National Insurance Development Program) with which we are here concerned.

Pursuant to the mandate of N. J. S. A. 17:37A-7 the Association submitted a plan of operation to the Commissioner. It was approved by him on November 25, 1968 with a proviso that there be “constructive compliance with the provisions of section 2(a) of chapter 129 of the Laws of 1968.” To this end he deemed it necessary that coverage against the perils oí vandalism and malicious mischief be made available at once and that burg ary and theft coverage be made available not later than June 1, 1969.

When, after long delay, the Association failed to comply, and after correspondents and consultation with the Association’s directors, the Commissioner, on June 24, 1970, certified an amendment to the Association’s plan of operation which directed that vandalism and malicious mischief endorsements be made available on fire policies issued after July 15, 1970. He also requested the Association to submit a proposal for the writing of burglary and theft coverage by August 1, 1970.

Since the subject of the appeal is a final decision of a state administrative agency, the matter is properly before us. R. 2:2-3 (a) (2). Cf. Alberti v. Civil Service Comm’n, 41 N. J. 147, 150-152 (1963).

Appellant raises two points, which may he summarized as follows: (1) the Commissioner was without authority to order it to include vandalism, malicious mischief, burglary and theft in the plan of operation, and (2) assuming he was vested with such authority, his action was procedurally invalid.

We consider them in that order.

I

In essence, the Association contends that N. J. S. A. 17:37A-1 at seq. was part of a joint federal-state program designed to make “essential property insurance” available in urban areas and that it was geared to and dependent upon the availability of reinsurance under the National Insurance Development Program (the federal program). It urges that since Ihe federal program was to cover vandalism, malicious mischief, burglary or theft only if the Secretary of Housing and Urban Development should so designate by rule, and the Secretary had not done so. up to the time of the directive here under appeal, the Commissioner was without authority to require such coverage. The Commissioner contends that the challenged directive was authorized by the statute, and this irrespective of whether reinsurance was available under the federal program.

We hold that the Commissioner acted pursuant to the authority conferred by N. J. 8. A. 17:37A — 1 et seq. in requiring the Association to include vandalism and malicious mischief coverage in its plan of operation and in requesting it to submit a proposal for the writing of burglary and theft coverage. Insurance coverage for the losses authorized to be covered by the statute was not dependent upon the coexistence of a federal reinsurance plan covering the same losses.

N. J. 8. A. 17:37A — 8 makes it clear that those unable to secure “essential property insurance” from authorized insurers in the normal insurance market are to be afforded coverage through the Association under the conditions therein stated. “Essential property insurance” is defined in N. J. 8. A. 17:37A-2(a) as “insurance against direct loss to property as defined and limited in the standard fire policy and extended coverage endorsement thereon, as approved by the commissioner, and insurance for such types, classes and locations of property against the perils of vandalism, malicious mischief, burglary or theft, or such other classes of insurance as the commissioner may designate in order to comply with Federal legislation and obtain Federal reinsurance.”

While the legislative intent is to be discerned from the language of the statute, State v. Wean, 86 N. J. Super. 283, 289 (App. Div. 1965), the statutory background, the circumstances of passage and the mischief at which the statute was aimed may weigh heavily in its ascertainment. State v. Wasserman, 75 N. J. Super. 480, 488 (App. Div. 1962), aff’d 39 N. J. 516 (1963). So considered, we are satisfied that the constricted definition of “essential property insurance” advanced by the Association is at variance with the legislative intent. Assembly Concurrent Resolution No. 33 of 1967, which antedated the 1968 report of the National Advisory Panel on Insurance in Riot Affected Areas, stated that:

The practice of insurance carriers of the State of refusing to write, renew and/or arbitrarily canceling existing policies of property insurance (fire and liability), without cause, in certain sections of the State, particularly in the urban and resort areas, is causing great hardship to property owners. This penalizes the owners of good properties with the bad * * *. [Emphasis added]

The 1968 report of the commission of the New Jersey Legislature “to Study the Matter of Refusal of Certain Insurance Companies to Issue Insurance Policies Covering Properties in Certain Portions of this State” noted that “Public recognition of the conditions described in the [Assembly’s] statement * * * and public demand for their correction resulted from the widespread ‘civil disorders’ of the summer of 1967, particularly those in Newark in July.” The legislative declaration contained in N. J. S. A. 17 :37A — 1 is to the effect:

[T]hat an adequate market for fire and extended coverage insurance is necessary to attract private capital to central city areas; that without such insurance it is impossible to supply needed goods and services, and expand job opportunities; that orderly community development depends upon an adequate supply of such insurance to enable homeowners to obtain financing for the purchase and improvement of their property; that while the need for such insurance is growing there is reason to believe that the market for same is constricting, and likely to become more constricted in the future; that voluntary efforts to provide fire and extended coverage insurance in areas likely to be unprofitable deserve praise, but are insufficient to meet the needs of these areas; that the State has an obligation to require every insurance company writing fire and extended coverage insurance in New Jersey to meet its public responsibilities, instead of shifting the entire burden to a few public spirited companies; that it is the purpose of this act to accept this obligation; and that any mandatory program to provide fire and extended coverage insurance for all citizens of New Jersey should be supervised by the Commissioner of Banking and Insurance and periodically reviewed in the light of experience and intervening events by the Legislature.

N. J. S. A. 17:37A-1 et seq. had its genesis in Senate Bill No. 712, which was introduced on April 29, 1968, passed the Senate on May 27, passed the Assembly in amended form on June 20, was approved in its amended form by the Senate on June 24 and signed into law on July 2, 1968. As originally introduced it covered only fire and extended coverage insurance, but extended coverage was there defined as including “vandalism or malicious mischief.” The act was to take effect on September 1, 1968 and to cease to be of any force on December 31, 1971, save as to policies already issued and obligations incurred thereunder. The Assembly amendments eliminated the restriction to fire and extended coverage insurance and required that “essential property insurance,” as defined therein, be made available. They also provided for the funding of the plan through the “New Jersey Insurance Development Fund,” advanced the effective date of the statute to July 1, 1968 and deleted the 1971 termination date. In signing the bill into law Governor Hughes expressed the belief that time would “prove it to be landmark legislation both in the field of insurance and in the rebirth of our deteriorating neighborhoods, within and without the cities.”

N. J. S. A. 17:37A-1 et seq. was enacted prior to the urban property reinsurance provisions of the United States Code, 12 U. S. C. A. § 1749bbb >et seq. (1968), and we may not assume that the Legislature intended it to be meaningless. Union County v. Benesch, 103 N. J. Super. 119, 124 (App. Div. 1968). It is hardly conceivable that, absent a federal reinsurance program, the Legislature intended to leave the Commissioner without power to carry out the salutary purposes it intended. As noted, the “extended coverage” which was required under the bill as originally introduced included, by definition, coverage for vandalism or malicious mischief. In the amended bill “essential property insurance” was substituted for “fire” and “extended coverage.” The provisions in the amended bill for the establishment and funding of the New Jersey Insurance Development Fund as a “financial back up” for the plan negate the suggestion that the Commissioner was without power to require more than fire and extended coverage. The fund was to he supported by a surcharge upon “all basic property insurance premiums paid for policies of insurance written in this State.” N. J. S. A. 17:37A-20. The surcharge was to be a separate charge to each insured, which the insurer was prohibited from absorbing hut was required to collect from the policyholder. N. J. S. A. 17:37A-19 and 20. Under the definition of “basic property insurance,” N. J. S. A. 17:37A-2(b), holders of policies covering vandalism and malicious mischief, burglary and theft, were among those required to contribute to the fund to the extent of the statutory surcharge. Deficiencies in the fund were to be met by advances from the State and later repaid. N. J. S. A. 17:37A-23.

We are satisfied that the New Jersey statute was intended to stand alone, regardless of whether, and to what extent, federal reinsurance was available. It was directed at conditions which the Legislature found to exist in this State, and was geared to their amelioration. The federal program was set up to provide minimum criteria for state F.A.I.R. plans, leaving it to the insurance authorities of each individual state to determine the scope of the plan beyond the established minimum. District of Columbia Ins. Placement Pac. v. Washington, 269 A. 2d 45 (D. C. Cir. 1970); United States Code Congressional and Administrative News, vol. 2, 90th Cong. 2d Sess. (1968), “Legislative History” at pp. 2951-2965. The fact that, in contrast to our own statute, the powers of the Secretary to carry out the three programs included in the National Insurance Development program are to terminate on April 30, 1973, except that the reinsurance program is to continue until April 30, 1976 (by which time the Secretary is directed to submit to Congress a plan for its liquidation and termination), 12 U. S. C. A. § 1749bbb (b) (1) and (2) (1968), further supports the interpretation relied upon by the Commissioner.

The Association further argues that the words (contained in the definition of essential property insurance, N. J. S. A. 17:37A-2(a)), “in order to comply with Federal legislation and obtain Federal reinsurance,” qualify the words “vandalism, malicious mischief, burglary, or theft” therein, and thus support its thesis that the legislative intent covered only fire and extended coverage unless federal reinsurance was made available to cover vandalism, malicious mischief, burglary or theft. The difficulty with this contention is that the clause of which the cited qualifying words are a part is set off by itself from the remainder of the paragraph. We are satisfied that the cited phrase was intended to refer to its last antecedent, “such other classes of insurance as the commissioner may designate.” See 82 C. J. S. Statutes § 334 at 670 (1953); cf. State v. Wean, supra, at 288. Had the modifying phrase been intended to relate to more than its last antecedent, a comma could have been used to set off the modifier from the entire series. T. I. McCormack Trucking Co. v. United States, 298 F. Supp. 39, 41 (D. C. N. J. 1969).

II

In its brief the Association contended that the Commissioner’s action was invalid because it was not preceded by a hearing at which evidence in support of the Commissioner’s findings was developed. .But N. J. S. A. 17:37A — 7(d) does not call for such a hearing. Tt provides that:

The commissioner may review the plan of operation whenever he deems expedient, and shall review same at least once a year, and may amend said plan after consultation with the directors [of the Association! and upon certification to the directors of such amendment.

The Association does not contend that there was a failure by the Commissioner to consult with its directors. Actually, it is conceded that there were meetings between representatives of the Commissioner and representatives of the directors.

However, in its reply brief the Association raised two issues not raised below, that (1) the Administrative Procedure Act, N. J. 8. A. 52:14B-1 et seq., mandated a hearing, and (2) the omission to hold a hearing was a violation of due process. We disagree as to each.

Initially, we note that there was never a request for hearing by the Association, nor does it appear from the lengthy correspondence between the Association and the Commissioner which preceded the challenged order that it was denied the opportunity to submit any materials, statements or other relevant data. It was then challenging only the Commissioner’s authority under the statute to require it to provide coverage for vandalism, malicous mischief, burglary and theft. Thus, absent a factual issue, there was no requirement that a hearing be held. Mississippi River Fuel Corp. v. Federal Power Comm’n, 108 U. S. App. D. C. 284, 281 F. 2d 919, 927 (1960), cert. den. 365 U. S. 827, 81 S. Ct. 712, 5 L. Ed. 2d 705 (1961). Cf. Railway Express Agency, Inc. v. C. A. B., 120 U. S. App. D. C. 228, 345 F. 2d 445, 450 (1965), cert. den. 382 U. S. 879, 86 S. Ct. 162, 15 L. Ed. 2d 120 (1965); Handlon v. Belleville, 4 N. J. 99, 104-105 (1950). As a practical matter, the Association has had every opportunity to expound its construction of the statute to the Commissioner, both orally and in writing. See Mississippi River Fuel Corp. v. Federal Power Comm'n, supra.

In a supplemental brief which it was given leave to file following the oral argument, the Association argues that a hearing was necessary on the issue of the advisability and effect of including coverage for burglary and theft in the plan. But the only portion of the Commissioner’s directive referable to coverage for burglary and theft required only that the Association submit a plan for such coverage. He specifically refrained from requiring that such coverage be furnished. Until a plan is submitted by the Association (or by the Commissioner) there is no need to determine whether or not a hearing is necessary.

• The order of the Commissioner is accordingly affirmed.

       See the 1968 report of the committee set up by Assembly Concurrent Resolution No. 23 for 1967 (as reconstituted by Senate Concurrent Resolution No. 17 of 1968).
      The National Advisory Panel on Insurance in Riot Affected Areas appointed by President Johnson August 10, 1967, in its January 1968 report, called for a federal program of reinsurance to support state F.A.I.R. (Pair Access to Insurance Requirements) plans.

       By order dated July 29, 1970 tlie federal program was expanded to include coverage for vandalism and malicious mischief, effective September 1, 1970. 35 Fed. Reg. 12113, 12114 (1970).