For modification -- Chief Justice Weintraub, and Justices Jacobs, Francis, Proctor, Hall and Schettino. Opposed -- None. The opinion of the court was delivered by Jacobs, J.
[36 NJ Page 244] On February 9, 1959 the plaintiff G. Fred Bechler was involved in a reportable accident. See N.J.S.A. 39:4-130. He was then 62 years of age. On February 1, 1960 the Division of Motor Vehicles sent a letter to the plaintiff advising him that the Division had a policy of reexamining all drivers involved in fatal accidents or in two accidents within a period of one year and "all drivers over age 60 who have been involved in one reportable accident, regardless of responsibility." The letter enclosed a physical examination form to be completed by a New Jersey physician of the plaintiff's choosing and requested the plaintiff to appear with the completed form at the Wayne Township Accident Prevention Clinic for a "review driver's examination." In response, the plaintiff sent a vitriolic letter dated February 5, 1960 in which he attacked the Division's policy, particularly that
portion of it which grouped drivers over 60 who had been involved in one reportable accident, regardless of responsibility. His letter described six earlier accidents in which his car had been involved, and in all of them, according to his descriptions, he was standing still and was not at fault.
On February 25, 1960 the Division acknowledged the plaintiff's letter and advised him that the reports relating to the accident of February 9, 1959 had been rechecked and that the plaintiff was clearly subject to reexamination under the Division's policy. A new appointment for the reexamination was scheduled and the Division expressed the hope that the plaintiff would find the new time convenient. On March 11, 1960 the plaintiff advised the Division that he considered the reexamination requirement to be unjust and that he declined to appear. On April 5, 1960 the Division advised the plaintiff that his appearance could not be waived and that a new appointment would be fixed upon his request. On May 19, 1960 the Division notified the plaintiff that his failure to reply to the letter of April 5 indicated an unwillingness to cooperate and that the revocation of his driving privilege would be recommended. On May 24, 1960 the plaintiff wrote to the Division again attacking its policy and offering to cooperate in any investigation seeking to ascertain who was at fault in the accident of February 9, 1959.
On July 25, 1960 the Division notified the plaintiff of the revocation of his license because of his "failure to appear for driver's reexamination." The revocation was effective July 30, 1960. On August 16, 1960 Governor Meyner announced that he planned to appoint a committee to study the reexamination program and that, pending the results of study, the Division had taken steps towards the establishment of procedures which would screen accident reports more thoroughly. He stated that where the driver "is not apparently at fault and if his prior record is a good one, the reexamination would not be required"; he also stated that there would be no reexamination where
other evidence indicated that the motorist was a safe driver, or where the motorist's car involved in the accident was parked or standing still or "clearly had the right of way." Following the Governor's announcement, the Division reviewed the plaintiff's record and concluded that it was in the public interest that the plaintiff be required to submit to a reexamination. This conclusion was based upon the "driving record" of the plaintiff "on file with the Division of Motor Vehicles, upon the additional information furnished by the plaintiff in his letter of February 5, 1960, and upon the accident in which the plaintiff was involved on February 9, 1959"; this accident, in the Division's opinion, did not fall in the category referred to by the Governor of "accidents involving a parked car, a car standing still at a stop light or a car which clearly had the right of way."
On September 14, 1960 the plaintiff filed a petition for declaratory judgment in the Appellate Division of the Superior Court. See R.R. 4:88-10; cf. R.R. 4:88-8(a); Carls v. Civil Service Commission of N.J., 17 N.J. 215, 219-220 (1955).*fn1 His petition alleged that the Division's reexamination policy, in effect at the time his license was revoked, "or at least the portion of said policy dealing with the reexamination of drivers over age 60" is "illegal, unconstitutional and void" under the "equal protection, due process and right of privacy provisions" of the Federal and State Constitutions. It alleged that the reexamination policy in effect after the Governor's announcement on August 16, 1960 was void under the same constitutional provisions and for the additional reason that it was "too vague, ambiguous and subject to capricious and discriminatory
application." His petition prayed that the reexamination policy, or that portion of it relating to the reexamination of drivers over age 60, and the revocation of his license, be adjudged "illegal, unconstitutional and void." In due course, the Division filed its answer to the petition, together with a formal record which consisted of copies of all of the pertinent documents in the Division's files and an affidavit by the Acting Director concerning the proceedings in the Division. Thereafter the plaintiff applied for (1) ad interim relief restoring his license pending the outcome of this proceeding, (2) leave to file affidavits with respect to the plaintiff's physical condition, his prior accident record and questions of fault, (3) leave to supplement the record with accident statistics, (4) leave to subpoena witnesses and (5) leave to amend the petition. The defendants applied for an order dismissing the plaintiff's action. On January 11, 1961 both applications were denied by the Appellate Division which, on its own motion, raised the question as to whether the Division had any statutory authority to conduct its reexamination program. Permission was granted to the plaintiff to amend his petition to embody this issue and on January 26, 1961 the petition was amended accordingly.
On March 21, 1961, the Acting Director issued a notice to his Inspection Force which advised that, effective immediately and pending the report of the Governor's committee, the following criteria would be used in scheduling motorists "who have been involved in accidents to appear for Accident Prevention Clinic examinations: (1) motorists who have had two reportable accidents within one year, regardless of age, will be called in for a clinic reexamination, subject however to the screening standards which were made effective in August of 1960; (2) motorists who have been involved in one accident and who have not had a driver license test and vision check by the Division of Motor Vehicles for thirty years past will be required to submit, on forms prescribed by the Division of Motor
Vehicles, a vision check by a licensed ophthalmologist, optometrist or oculist; (3) motorists who have been involved in one accident in which it is indicated that his or her physical disability was a contributing factor to the accident."
While the plaintiff's petition was awaiting hearing in the Appellate Division, we certified the cause on our own motion. Cf. N.J. Const., Art. 6, § 5, par. 1(d); R.R. 1:10-1(a). See Lampert Dairy Farm, Inc. v. Hoffman, 35 N.J. 205, 206 (1961); Brookchester, Inc. v. Ligham, 17 N.J. 460, 462 (1955); Stuyvesant Town, Inc. v. Ligham, 17 N.J. 473, 475 (1955). We heard oral argument and during the course thereof suggested that the Division might wish to embody its reexamination policy in formal rules or regulations. Thereafter the Division promulgated, and filed with the Secretary of State, the following regulation (see N.J. Const., Art. 5, § 4, par. 6):
"The Director of the Division of Motor Vehicles of the Department of Law and Public Safety by virtue of the authority vested in him under the provisions of Section 39:3-10 and Section 39:5-30 of the Revised Statutes of New Jersey hereby makes and promulgates the following Regulation.
The Director may require persons who operate motor vehicles on the highways of this state to be reexamined in accordance with the program of the Accident Prevention Clinic to determine their ability to operate safely. Reexamination may be required ...