Collins, J.c.c., Temporarily Assigned.
Plaintiff Gregory A. Blair contends that he was injured due to the negligence of defendant Erie Lackawanna Railway Company and certain of its employees. There is some indication that he may have been hurt while attempting to board a moving passenger train.
Plaintiff John E. McCabe also contends that he was injured due to the negligence of defendant Erie Lackawanna Railway Company and certain of its employees. There is some indication that McCabe may have suffered his injury while alighting from a moving passenger train.
This court has been called upon by plaintiffs in these two actions to rule upon their motions to strike certain of defendants' affirmative defenses or in the alternative to grant summary judgments. While these cases have not been consolidated for trial, the respective motions in each deal with precisely the same issue, to wit, the constitutionality of a portion of N.J.S.A. 48:12-152, whose provisions have been raised by the defendant in both actions, Erie Lackawanna Railway Company, as an affirmative defense. Plaintiffs, in effect, ask this court to declare the following statutory provision to be violative of our state and federal organic law and hence void and of no effect:
48:12-152. Trespassing on tracks prohibited; contributory negligence; injury on tracks or moving car; crossings.
Any person injured by an engine or car while walking, standing or playing on a railroad or by jumping on or off a car while in motion shall be deemed to have contributed to the injury sustained and shall not recover therefor any damages from the company owning or operating the railroad. * * *.
Whenever one challenges the constitutional validity of a legislative enactment he undertakes a formidable task, and rightly so, for he is challenging the collective judgment of the elected representatives of the people. A court called upon to measure the validity of such an assault is, in its turn, functioning in one of the most delicate areas of jurisprudence, where it must constantly keep in mind the necessity to interfere as little as possible with the performance of constitutionally charged duties by a coequal branch of government while concurrently meeting its responsibility to safeguard the rights of the individual and to insure adherence by all to the requirements of our State and Federal Constitutions.
The doctrine of separation of powers is a fundamental principle of American government, expressly provided for in the constitutions of many states, and implied in almost all the others and in the Federal government from the creation of the three separate branches of government. See Annot. 69 A.L.R. 266 (1930); Annot. 89 A.L.R. 1113 (1934). * * *
The doctrine of separation of powers must therefore be viewed not as an end in itself, but as a general principle intended to be applied so as to maintain the balance between the three branches of government, preserve their respective independence and integrity, and prevent the concentration of unchecked power in the hands of any one branch. * * * [ David v. Vesta Co. , 45 N.J. 301, 315-326 (1965)]
It is well to repeat that while the doctrine of separation of powers is designed to prevent a single branch from claiming or receiving inordinate power, there is no bar to cooperative action among the branches of government. On the contrary, the doctrine necessarily assumes the branches will coordinate to the end that government will fulfill its mission. In re Zicarelli [ Zicarelli v. New Jersey State Comm. of Investigation ] 55 N.J. 249, 264-265 (1970), affirmed 406 U.S. 472, 92 S. Ct. 1670, 32 L. Ed. 2 d 234 (1972). * * *. [ Brown v. Heymann , 62 N.J. 1, 11 (1972); emphasis added]
In order to implement the principles noted above our courts have developed certain presumptions in favor of, and imposed certain burdens upon those seeking to challenge the constitutional validity of, the enactments of our legislature.
* * * There is a strong presumption that a statute is constitutional, General Electric Co. v. City of Passaic , 28 N.J. 499, 510 (1958); In re Village of Loch Arbour , 25 N.J. 258, 264-265 (1957), and a legislative act will not be declared void unless its repugnancy to the constitution is clear beyond a reasonable doubt. Gangemi v. Berry , 25 N.J. 1, 10 (1957). "To declare a statute unconstitutional is a judicial power to be delicately exercised." Wilentz v. Henrickson , 133 N.J. Eq. 447, 487 (Ch. 1943), affirmed 135 N.J. Eq. 244 (E. & A. 1944). * * * [ Harvey v. Essex County Bd. of Chosen Freeholders , 30 N.J. 381, 388 (1959)]
There is a presumption [in favor] of the constitutional sufficiency of a legislative enactment; and the onus of a showing contra is on him who interposes the challenge. [Citations omitted]. The finding of the Legislature is presumed to have the support of facts known to it "unless facts judicially known or proved preclude that possibility"; generally it is "not the province of a court to hear and examine evidence for the purpose of deciding again a question which the legislature has already decided"; * * *. Clark v. Paul Gray , 306 U.S. 583, 59 S. Ct. 744, 83 L. Ed. 1001 (1939). Every intendment is indulged in favor of the validity of the act. * * * [ Jamouneau v. Harner , 16 N.J. 500, 515 (1954), cert. den. 349 U.S. 904, 75 S. Ct. 580, 99 L. Ed. 1241 (1955)]
Also see Fried v. Kervick , 34 N.J. 68, 74 (1961); Levitt & Sons v. Div. against Discrimination, etc. , 31 N.J. 514, 531 (1960); In re Loch Arbour , 25 N.J. 258, 264-265 (1957); Williams v. Smith , 94 N.J. Super. 341, 346 (App. Div. 1967) aff'd 51 N.J. 161 (1967); In re Freygang , 46 N.J. Super. 14 (App. Div. 1957), aff'd 25 N.J. 357 (1957); State v. Community Distributors, Inc. , 123 N.J. Super. 589 (Monmouth Cty. Ct., decided April 23, 1973); Kohler v. Barnes , 123 N.J. Super. 69, 83 (Law Div. 1973); N.J. Sports & Exposition Authority v. McCrane , 119 N.J. Super. 457, 472-473 (Law Div. 1971), mod. on other gds., 61 N.J. 1 (1972).
The wisdom of the legislature of the means it selects are not subject to review or interference by the courts except in the protection of fundamental constitutional rights. Gundaker Central Motors v. Gassert , 23 N.J. 71, 81 (1956). * * *. [ State v. Ulesky , 100 N.J. Super. 287, 295 (Cty. Ct. 1968), rev'd on other gds. 54 N.J. 26 (1969)]
A final caveat must be noted before we enter into an analysis of the arguments presented in this matter. This court is a trial court and hence the above noted limitations, clearly binding upon all levels of the judiciary, are, if this is possible, even more strictly to be observed by us than the courts of an appellate nature.
In Legg v. County of Passaic , 122 N.J.L. 100, 4 A.2d 300 (Sup. Ct. 1939), Mr. Justice Parker quoted with approval from an opinion of Judge Dungan, that "the better practice is for the inferior court to assume that an act is constitutional until it has been passed by the Appellate Court, unless it is so clearly in contravention of the constitution that there can be no reasonable doubt about it, * * *."
It is clear that it is not the function of this court to pioneer in the field of constitutional law. The presumption of constitutionality must be applied with greater force here than in the appellate courts. The pattern of the law must be drawn by the appellate courts. The trial courts, especially those of limited jurisdiction, must follow, not lead. [ Neeld v. Automotive Products Credit Ass'n , 21 N.J. Super. 159, 161 (Cty. D. Ct. 1952)]
Defendant initially puts forward the proposition that the case of Egan v. Erie R.R. Co. , 29 N.J. 243 (1959), is dispositive of the question of the constitutionality of the statutory provision before the court. With this the court cannot agree.
Egan dealt with a situation where a seven-year-old infant-trespasser fell and was injured while attempting to board a moving freight train. The analysis of the court was based upon the premise that "the effect of the statute is to absolve a railroad company from a duty to a trespasser." 29 N.J. 248. The court held the statute constitutional as applied to infant trespassers.
Considering the importance of railroads as an instrument of transportation and commerce, the enormous territory encompassed by their rights of way, and the ...