New Jersey State Policemen's Benev. Ass'n of New Jersey, Inc. v. Town of Morristown

• Decision Date: 06 June 1974
• Docket Number: Nos. A-107 and A-108,s. A-107 and A-108
• Citation: 65 N.J. 160,320 A.2d 465
• Parties: , 8 Fair Empl.Prac.Cas. (BNA) 268, 8 Empl. Prac. Dec. P 9624 NEW JERSEY STATE POLICEMEN'S BENEVOLENT ASSOCIATION OF NEW JERSEY, INC., a New Jersey corporation, Plaintiff-Respondent, v. TOWN OF MORRISTOWN, a municipal corporation, et al., Defendants-Appellants.
• Court: New Jersey Supreme Court

Page 160

65 N.J. 160

320 A.2d 465, 8 Fair Empl.Prac.Cas. (BNA) 268,

8 Empl. Prac. Dec. P 9624

NEW JERSEY STATE POLICEMEN'S BENEVOLENT ASSOCIATION OF NEW JERSEY, INC., a New Jersey corporation, Plaintiff-Respondent, v. TOWN OF MORRISTOWN, a municipal corporation, et al Defendants-Appellants.

Nos. A-107 and A-108

Supreme Court of New Jersey.

Argued March 18, 1973.

Decided June 6, 1974.

John M. Newman, Morristown, for defendants-appellants, Town of Morristown, and others (Henry M. Hoyt, Morristown, attorney, and on the brief).

Richard M. Conley, Deputy Atty. Gen., for defendant-appellant George F. Kugler, Jr., former Atty. Gen. (William F. Hyland, Atty. Gen. of New Jersey, attorney; Morton I. Greenberg, former Asst. Atty. Gen. of New Jersey, on the brief).

James R. Zazzali, Newark, for plaintiff-respondent (Anthony L. Mezzacca, Edison, on the brief; Zazzali & Zazzali, Newark, attorneys).

The opinion of the Court was delivered by

PASHMAN, J.

The issue before the Court is purely a matter of law. The landmark legislation which we must interpret N.J.S.A. 9:17B--1 et seq. (L.1972, c. 81, effective January 1, 1973) ¹, extends 'to persons 18 years of age and older the basic civil and contractual rights and obligations heretofore applicable only to persons 21 years of age or older,' including the right to 'apply for and be appointed to public employment.' N.J.S.A. 9:17B--1(a).

Plaintiff, New Jersey State Policemen's Benevolent Association of New Jersey, Inc. (P.B.A.), alleges that the enactment in lowering the age of majority from 21 to 18 years of age does not authorize the employment of policemen under 21 years of age, as prohibited by N.J.S.A. 40A:14--127. ² Plaintiff sought injunctive and declaratory relief against the Town of Morristown; its Mayor and Chief of Police; George F. Kugler, Jr., then Attorney General of New Jersey; and John Murphy, a policeman between the ages of 18 and 21 years employed by Morristown. Defendants moved to dismiss on the ground that the complaint failed to state a claim upon which relief could be granted. The Chancery Division granted judgment on the pleadings, holding the age requirement that policemen must be between 21 and 35 years of age as provided by N.J.S.A. 40A:14--127 was not affected by N.J.S.A. 9:17B--1 et seq. N.J. State. P.B.A. v. Morristown, 124 N.J.Super. 389, 307 A.2d 129 (Ch.Div.1973). In essence, the trial court held that 'overriding considerations of public safety and welfare' and 'distinctions in maturity and experience' indicate that the lower age limit of 21 years was not merely intended to reflect the legal age of majority, but rather was based on the particular requisites for employment as a policeman. A stay pending appeal was granted on July 3, 1973. On motion by the Attorney General while the appeal was pending unheard in the Appellate Division, certification was granted on November 12, 1973. 64 N.J. 326, 315 A.2d 414 (1974). We reverse.

The question is whether N.J.S.A. 9:17B--1 et seq. supersedes N.J.S.A. 40A:14--127 to the extent they may be inconsistent. The age of majority enactment lacks the requisite specificity to be classified as an express repeal. While it is not essential to identify a specific provision in order to effect its express repeal, it is necessary to describe the provision with reasonable certainty. In any event, acts are just as effectively repealed by implication as by specific designation. 1 Sutherland, Statutory Construction (3d ed.), §§ 2008, 2009.

Repeals by implication are not favored. In the absence of an express repealer, there must be a clear showing of legislative intent to effect a repeal. Crater v. County of Somerset, 123 N.J.L. 407, 414, 8 A.2d 691 (E. & A. 1939); Henninger v. Board of Chosen Freeholders of County of Bergen,3 N.J. 68, 71, 68 A.2d 833 (1969); Swede v. City of Clifton, 22 N.J. 303, 317, 125 A.2d 865 (1956); Department of Labor and Industry v. Cruz Construction Co., 45 N.J. 372, 380, 212 A.2d 545 (1965); Brewer v. Porch, 53 N.J. 167, 173, 249 A.2d 388 (1969); Mahr v. State, 12 N.J.Super. 253, 261, 79 A.2d 335 (Ch.Div.1951). This doctrine, however, is merely an aid in ascertaining legislative intent. State v. Hotel Bar Foods, 18 N.J. 115, 129, 112 A.2d 726 (1955). The criteria for evaluating whether or not a repeal has been effected are numerous. Sutherland, Supra, § 2007. In the final analysis, a law cannot be evaluated in a vacuum, but must be considered in the context in which it was adopted. Appeal of N.Y. State Realty & Terminal Co., 21 N.J. 90, 98, 121 A.2d 21 (1956); Matawan Borough v. Monmouth County Tax Board, 51 N.J. 291, 299, 240 A.2d 8 (1968).

The inquiry is, of course, one of establishing legislative intent as expressed in its language. Gangemi v. Berry, 25 N.J. 1, 10, 134 A.2d 1 (1957). See generally, Sutherland, Supra, §§ 2006, 2007. In conducting this inquiry, it should be noted that new laws which radically change the old may be the basis of and may provide some indication of legislative intent. Mahr v. State, Supra, 12 N.J.Super. at 261, 79 A.2d 335. A new law altering fundamental assumptions relied upon by the old law will work to supersede earlier inconsistent statutes. Board of Education v. Tait,81 N.J.Eq. 161, 86 A. 379 (E. & A. 1913); Two Guys from Harrison, Inc. v. Furman, 32 N.J. 199, 223--225, 160 A.2d 265 (1960); Mahr v. State, Supra, 12 N.J.Super. at 261--262, 79 A.2d 335.

In changing the age of majority in New Jersey, the Legislature was cognizant of extensive reference to that age in the statutes. The enactment is introduced by a specific statement of legislative intent to change the age 'pending the revision and amendment of the Many statutory provisions involved.' (Emphasis added). N.J.S.A. 9:17B--1. Furthermore, in N.J.S.A. 9:17B--3, the Legislature took note of inconsistent laws by providing that 'every person 18 or more years of age shall In all other matters and for All other purposes be deemed to be an adult and, Notwithstanding any other provision of law to the contrary, shall have the same legal capacity to act . . . as a person 21 or more years of age.' (Emphasis added). Of the numerous means of altering the age of majority, the Legislature has chosen in one enactment to eradicate 21 as the age of majority and substitute age 18 rather than initially attempt the massive task of ferreting out each and every statute which would require alteration.

The legislative intent in enacting N.J.S.A. 9:17B--1 et seq. was to supersede inconsistent statutory requirements which were based on the age of majority as 21 years. The Legislature was well aware that its enactment would lower the age for employment as a policeman. The subject of police minimum age requirements was simultaneously being considered by the Legislature along with the current statute. Assembly Bill No. 450 (1972) provided for the reduction from minimum age 21 to 19 years of age for appointment to a local fire or police force. The bill passed the Assembly on May 11, 1972, but never was released from the Senate Committee on County and Municipal Government. A similar bill which applied only to policemen, Assembly Bill No. 120 (1972), was never reported out of the Assembly Committee on Law, Public Safety and Defense. The current statute was introduced on May 4, 1972 (Senate Bill No. 992) and was signed by the Governor on July 5, 1972.

It cannot be contended that the Legislature neglected to exclude policemen from the application of the act where specific exclusions were provided, none of which dealt with policemen, and the subject matter alleged to be excluded was being simultaneously considered. This is particularly so where the language of the act is specific in terms of a comprehensive change 'pending revision and amendment' of the numerous provisions affected as to the new status of 18-year-olds 'in all other matters and for all other purposes.' N.J.S.A. 9:17B--1 and 9:17B--3. Mahr v. State, Supra, 12 N.J.Super. at 263, 79 A.2d 335. The intent of the Legislature as expressed in the statute indicates the applicability of the axiom--Expressio unius est exclusio alterius. Gangemi v. Berry, Supra, 25 N.J. at 11, 134 A.2d 1; Mahr v. State, Supra, 12 N.J.Super. at 263, 79 A.2d 335. The Legislature is familiar with its previous enactments and was aware of the statute's widespread applicability. Eckert v. New Jersey State Highway Department, 1 N.J. 474, 479, 64 A.2d 221 (1949); Matawan Borough v. Monmouth County Tax Board, Supra, 51 N.J. at 299--300, 240 A.2d 8; Brewer v. Porch, Supra, 53 N.J. at 174, 249 A.2d 388. That the Legislature chose to deal with the change in age of majority with so broad a statute is not a policy with which this Court can disagree. A judicial expansion of the act to exempt N.J.S.A. 40A:14--127 would constitute an unwarranted exercise of the legislative function. Eckert v. New Jersey State Highway Department, Supra, 1 N.J. at 479--480, 64 A.2d 221. ³ As noted in a memorandum from the Assistant Attorney General to all department heads, dated October 13, 1972, additional exceptions will have to be accomplished by further legislation. ⁴

Plaintiff argues that the requirements of N.J.S.A. 40A:14--127 deal with concepts and purposes beyond the adult-minor distinction which is at the heart of N.J.S.A. 9:17B--1 et seq. The contention is that the minimum age of 21 was only coincidentally equivalent to the age of majority and that the appointment of policemen was to be limited 'to persons of a certain maturity and experience, and of certain mental, emotional and physical prowess.' The law did not intend to obliterate every legal distinction between those 18 and 21 years of age. In support of this argument, plaintiff notes that the Legislature could have amended all references to age 21 to read age 18, and that while the minimum age has remained constant, the maximum age has varied. The fact that the Legislature has varied only the maximum age requirement does not necessarily...