In this action The New Jersey Society for the Prevention of Cruelty to Animals (S.P.C.A.) under N.J.S.A. 4:22-26 seeks recovery against the Board of Education of the City of East Orange (board) of penalties at the rate of $100 per alleged violation arising primarily out of cancer-inducing experiments conducted by a student in its high school on live chickens. By permission of the court, defendants New Jersey Science Teachers' Association and National Society for Medical Research, Inc. were permitted to intervene as party defendants. The American Humane Association was permitted by the court to participate as amicus curiae.
To my mind, the two primary issues are whether the provisions of N.J.S.A. 4:22-16(a) deny the board any power and discretion to permit high school students to undertake learning experiences involving ostensible pain or suffering of a chicken, and whether the board, by its servants or agents, inflicted unnecessary cruelty or otherwise needlessly mutilated or killed live animals, namely chickens, contrary to the provisions and intendment of N.J.S.A. 4:22-26(a) and (c).
Adopted in 1880, and amended in minor respects in 1915, the statute involved deals, according to its heading, with the prevention of cruelty to animals, and specifies "animal or
creature" as including the whole brute creation (N.J.S.A. 4:22-15). The legislative history of the enactment is meager and unrewarding.
The following section, N.J.S.A. 4:22-16, and one which requires construction as to its application to the instant case, reads:
"N.J.S.A. 4:22-16. Construction of article
Nothing contained in this article shall be construed to prohibit or interfere with:
a. Properly conducted scientific experiments performed under the authority of the state department of health. That department may authorize the conduct of such experiments or investigations by agricultural stations and schools maintained by the state or federal government, or by medical societies, universities, colleges and philanthropic institutions incorporated or authorized to do business in this state and having among their corporate purposes investigation into the causes, nature, prevention and cure of diseases in men and animals; and may for cause revoke such authority;
b. The killing or disposing of an animal or creature by virtue of the order of a constituted authority of the state;
c. The shooting or taking of game or game fish in such manner and at such times as is allowed or provided by the laws of this state."
The next section, N.J.S.A. 4:22-17, among other provisions, makes one who inflicts unnecessary cruelty upon a living animal or creature of which he has charge guilty of a misdemeanor, punishable by a fine of not more than $250, or imprisonment for not more than six months, or both, in the discretion of the court.
N.J.S.A. 4:22-26, as to the prohibited acts charged here, in so far as relevant reads:
a. Overdrive, overload, drive when overloaded, overwork, torture, torment, deprive of necessary sustenance, or cruelly beat or otherwise abuse or needlessly mutilate or kill a living animal or creature;
c. Inflict unnecessary cruelty upon a living animal or creature of which he has charge or custody or either as owner or otherwise, or unnecessarily fail to provide it with proper food, drink, shelter or protection from the weather; * * *" (Emphasis added)
Broadly stated, plaintiff contends that no one but the State Department of Health can give authority for conducting
animal experiments and that the Health Department can grant authority for such experiments only to the entities named in N.J.S.A. 4:22-16(a). S.P.C.A. argues that it was the intention of the Legislature to limit these experiments solely to the groups mentioned in the section. Therefore, anyone conducting scientific experiments on live animals without authorization from the Department of Health should be subject to the penalties set forth in N.J.S.A. 4:22-26, for the acts constituting cruelty; in other words, scientific experiments, even if properly performed, would per se constitute unnecessary cruelty or needless mutilating or killing. If the court does not accept this position, S.P.C.A. further asserts there was a violation of that section in that there was in fact a needless mutilation or killing and an unnecessary cruelty, as proved by the nature of this particular experiment or the manner in which it was carried out.
Again, broadly stated, defendants assert that N.J.S.A. 4:22-26 does not apply to it, and that, assuming cruelty or mutilation and admitting killing, such acts were not needless and were not unnecessary, considering the purposes and goals of the experiment, and the manner in which it was carried out. In the event defendants' contentions, as just stated, are not upheld, they argue that other defenses arise, such as the unconstitutionality of the statute.
My first obligation is to interpret the statute.
Oscar Sussman, a veterinary doctor who is chairman of the Department of Veterinary Medicine in the State Department of Health, testified for the defense that only 26 institutions*fn*
in this State had applied for and obtained authorization to perform scientific experiments under N.J.S.A. 4:22-16, the majority of which are hospitals, with some commercial research institutions (part of whose corporate affiliates are in the food and drug field). Only two institutions of higher learning, Jersey City State College and Seton Hall Medical School (now a state school), are in the group. Rutgers, the State University, has its application pending. Dr. Sussman estimated that 300 or 400 other institutions or people, in addition to high schools and institutions of higher education, are presently conducting live animal experiments in the State, and that his department considers it none of its business. On the contrary, it favors live animal experiments in high schools, and Dr. Sussman believes the experiment here was both needed and was carried out properly. In fact, his department, in conjunction with the New Jersey Department of Education and the American Cancer Association in 1963 sponsored "Smoking and Lung Cancer," a teaching and reference guide for schools from grade level 5 through the senior college year; and among other experiments recommended for children in high schools is the placing of nicotine tars on shaved skin on the backs of laboratory mice, with this experiment to run for six months so as to form tumor or lesion formation. Included in the suggested technique is the microscopic examination of the growth of cancerous cells, if the mouse is sacrificed.*fn1
The view of the Department of Health should perhaps be given some significance. It is well established that resort may be had to long usage and practical interpretation by an administrative agency in construing statutes to ascertain their meaning, to explain a doubtful phrase, or to illuminate any obscurity. The lack of ...