This matter comes before me on a motion made by the juvenile for a trial by jury. The juvenile is charged with various offenses encompassing assault and battery, attempted robbery, breaking and entry and larceny, receiving stolen property, incorrigibility, and conduct endangering his health, morals and general welfare. N.J.S. 2 A:4-14.
The juvenile is 12 years of age, Because of his age he does not come within the provisions of N.J.S. 2 A:4-15 which permits a jury trial as of right for a juvenile of the age of 16 or 17 where the complaint is transferred to an adult court pursuant to the statute. The jurisdiction of this court is exclusive in juvenile matters by virtue of N.J.S. 2 A:4-14, except for those cases transferred at the request of the juvenile or by order of the Juvenile and Domestic Relations Court when the case otherwise falls within the provisions of N.J.S. 2 A:4-15. See State v. Monahan, 15 N.J. 34 (1954). Hence, if a juvenile under the age of 16 is to have a jury trial, it must be conducted in the Juvenile and Domestic Relations Court. However, under N.J.S. 2 A:4-35 the Legislature has provided, inter alia:
"The juvenile and domestic relations court shall hear and determine all cases of children arising under the provisions of this chapter without a jury."
Since the statute in question has not been repealed or otherwise amended and is still in full force and effect, there can be no trial by jury for a juvenile offender under the age of 16 unless the statute is found to be unconstitutional.
It is a well settled rule that there is a presumption of constitutionality in favor of a statute and that a statute will not be declared unconstitutional unless it is plainly in contravention of a constitutional mandate or prohibition. It is the duty of courts to so construe a statute as to render it constitutional if it is reasonably susceptible of such interpretation. St. John the Baptist Greek Catholic Church of Perth Amboy v. Gengor, 121 N.J. Eq. 349 (E. & A. 1937); Lynch v. Borough of Edgewater, 8 N.J. 279 (1951); Woodhouse v. Woodhouse, 17 N.J. 409 (1955); Daly v. Daly, 21 N.J. 599 (1956).
This rule has been affirmed more recently in Williams v. Smith, 94 N.J. Super. 341 (App. Div. 1967), affirmed 51 N.J. 161 (1968). There the Supreme Court adopted the opinion of the Appellate Division wherein the court stated:
"As was said in In Re Loch Arbour, 25 N.J. 258, 264-265 (1957), all doubts are resolved in favor of constitutionality; it is the policy of our law not to invalidate a statute which has been in force without substantial change for many years, unless its unconstitutionality is obvious."
The burden of proving obvious unconstitutionality is upon the party seeking to invalidate the statute. Behnke v. N.J. Highway Authority, 25 N.J. Super. 149 (Ch. Div. 1953), affirmed 13 N.J. 14 (1953).
It must be noted that the presumption of legislative validity applies even more forcefully in lower courts than at the appellate levels. In Neeld v. Automotive Products Credit Ass'n, 21 N.J. Super. 159 (D. Ct. 1952), Judge Fulop said:
"The pattern of the law must be drawn by the appellate courts. The trial courts, especially those of limited jurisdiction, must follow, not lead." It was also stated in State v. ...