At the pretrial conference of this matter, the court directed the parties to submit briefs setting forth the law of this State on the following issues:
(a) the admissibility of a bill passed only by the State Assembly which purports to amend the Factory Safety Laws, R.S. 34:6-1 et seq. , by expressly extending the requirements and prohibitions set forth therein to newspaper publishing plants; and
(b) the admissibility of evidence of the existence of certain fumes in the atmosphere of newspaper type casting rooms.
After a consideration of the briefs and the cases bearing on these subjects, I must conclude that the evidence on both points is inadmissible and, therefore, will be excluded at trial.
The general issue in the case is relatively simple of statement. The plaintiffs have commenced their action in lieu of prerogative writ in the nature of a mandamus to compel the defendant Commissioner of Labor and Industry to enforce the provisions of the Factory Safety Laws, supra , in newspaper plants. The Commissioner and the intervenors take the position that these laws were not intended to regulate newspaper plants. In support of their defense the intervenors propose to introduce at trial evidence of a Bill, A-445, which has been passed by the Assembly and has reposed in the Senate Committee of Labor and Industrial Relations since February 1960 without further legislative action. For
present purposes there is no need to set forth the terms of this bill in any detail, it being sufficient to state merely that the proposed amendment purports to expressly include newspaper plants within the coverage of the Safety Laws. There have been no prior decisions on the extent of application of the statute here in question, as it relates to the issue before the court, either by our courts or by the administrative agency charged with its enforcement, the only reported constructions being several opinions of Attorneys General of this State. See: October 6, 1911, Attorney General's Opinion to the Commissioner; Formal Opinions Nos. 36 (Nov. 20, 1951), 8 (May 20, 1952), 52 (Dec. 3, 1953) and No. 13 (Sept. 25, 1958).
The defendants-intervenors maintain that evidence of the existence of this bill is admissible "in a primary sense" because the fact of introduction indicates "a legislative awareness that the scope of the original bill is not sufficiently broad to encompass newspaper plants." They also urge that the evidence is admissible in a secondary sense, since it points up legislative inactivity in the face of a prior administrative interpretation. The overriding purpose of the offer of this evidence is to assist in a construction of the statute in order to determine if the provisions of the Safety Laws as are now in force extend to newspaper plants.
As support for their theories, the defendants, in the main, rely upon the cases of Barringer v. Miele , 6 N.J. 139 (1951); Eagle Truck Transport, Inc. v. Board of Review , 29 N.J. 280 (1959); and Ablondi v. Board of Review , 8 N.J. Super. 71 (App. Div. 1950), the latter case being cited as authority for the admissibility of evidence of the proposed amendment.
In Barringer v. Miele, supra , the Supreme Court was confronted with a situation where the plaintiff alleged that he had been wrongfully dismissed by the Superintendent of Elections for Essex County from his position as a clerk-investigator in violation of the Veteran's Tenure Act, N.J.S.A. 38:16-1. There the court alluded to the doctrine of legislative inactivity and stated that
"In construing a statute it is to be assumed that the Legislature is thoroughly conversant with its own legislation and the =ir judicial construction placed thereon. * * * The construction of a statute by the courts, supported by long acquiescence on the part of the Legislature, or by continued use of the same language, or failure to amend the statute, is evidence that such ...