Lynch, Larner and Horn. The opinion of the court was delivered by Horn, J.A.D.
[141 NJSuper Page 399] Plaintiffs, 47 in number, are or were at the time when they instituted this action on April 17, 1974 inmates in county detention facilities as pretrial detainees or as convicted prisoners. They instituted a class action in the Superior Court, Chancery Division, Mercer County, as representatives of all prisoners incarcerated in the county jails of New Jersey, asserting that their prerogatives to be free from cruel and unusual punishment (including grossly inadequate medical care, the lack of rehabilitative programs, invasions of privacy and interference with their right of communication), their rights to counsel, to due process and to access to the courts, and similar conditions (including arbitrary and inhumane limitations on visitation and association) were being denied in each of said county facilities,
in violation of sections of the United States Constitution, the New Jersey Constitution and various laws of this State.
Defendants are the respective sheriffs, wardens and other county officials alleged to exercise or having the power to exercise "custody, rule, keeping and charge" of the respective facilities in all the counties of the State. Additionally the complaint names as a defendant Ann Klein, individually and as Commissioner of the Department of Institutions and Agencies of the State of New Jersey, on the allegations that she is responsible for the administration of the county penal institutions as well as the care and custody of the inmates thereof, in accordance with N.J.S.A. 30:1-2 and 30:1-14; that she is empowered by N.J.S.A. 30:1-15 to supervise and inspect local penal institutions with respect to the proper management thereof, with the power to institute civil actions against those who violate the efficient and humane administration thereof, N.J.S.A. 30:1-16, and that her failure to perform her obligations constitutes a violation of plaintiffs' civil rights, entitling them to a remedy § 1983, against her under 42 U.S.C.A.*fn1
Plaintiffs appeal because after hearings on appropriate motions filed by counsel for the respective defendants, the trial judge (1) dismissed the action against Klein individually and as Commissioner on the ground that the complaint failed to state a cause of action against her, R. 4:6-2, and (2) dismissed the action against all parties except the officials of Mercer County, on the ground that they were improperly joined as defendants, R. 4:29-1(a).*fn2
After orders implementing the trial judge's decisions were entered and notices of appeal were filed with the Appellate Division all appeals were consolidated in this Division.
The complaint recognizes that conditions and the asserted deficiencies are different in each facility and that certain alleged deficiencies or substandard conditions in some facilities are not present in others or are present to different degrees. The complaint so indicates and it is patently asserted that the objective of the action and the purpose of joining all the parties from outside Mercer County is to "establish state-wide minimum constitutional standards" and to obtain relief as to each facility in accordance with those standards.
THE DISMISSAL IN FAVOR OF COMMISSIONER KLEIN
Plaintiffs first aver that the duties imposed by various statutes upon Klein are mandatory, but even if they are only discretionary the trial judge erred in entering the dismissal in her favor. The statutes creating the duties, say plaintiffs, are N.J.S.A. 30:1-15 and 16. Under the former the Commissioner (and the State Board of Institutional Trustees) has the power of "visitation and inspection" of all county jails and places of detention for the purpose of inspecting and observing the physical condition thereof, the physical condition of the inmates, the care, treatment and discipline thereof, and also to determine whether such persons so committed are properly and adequately boarded, lodged, treated, cared for and maintained. She and said state board may make such report with reference to the result of such observation and inspection and such recommendations with reference thereto as they may determine.
Under N.J.S.A. 30:1-16 if it shall appear that
Observing that the nonmandatory word "may" is used as indicated in N.J.S.A. 30:1-16, plaintiffs contend that since it is employed in the statute to delegate power the exercise of which is important for the protection of the public interests, and since it can clearly be taken from the statute , a mandatory significance was intended. Kennelly v. Jersey City , 57 N.J.L. 293 (Sup. Ct. 1894); McDonald v. Hudson Cty. Bd. of Chosen Freeholders , 99 N.J.L. 170 (E. & A. 1923); Bayonne v. North Jersey, etc., Comm'n , 30 N.J. Super. 409, 417 (App. Div. 1954).
We do not agree with this contention. We find no clear evidence of the intention to impose mandatory responsibilities on the Commissioner by virtue of these enactments. Most importantly, the word "may" should be given the meaning which conforms to the legislative intent. Harvey v. Essex Cty. Bd. of Freeholders , 30 N.J. 381, 391-392 (1959). See also, Leeds v. Harrison , 9 N.J. 202 (1952); Diodato v. Camden Cty. Park Comm'n , 136 N.J. Super. 324 (App. Div. 1975).
In this process it is necessary to determine the sense of the statutory scheme in which the words appear. Durgin v. Brown , 37 N.J. 189, 197 (1962). The Commissioner heads the Department of Institutions and Agencies, N.J.S.A. 30:1-2, and has the power to determine all matters relating to the development and regulation of the administration of all institutions "within his jurisdiction." Such rules, regulations, orders and directions issued by the Commissioner shall be accepted and enforced by the executive in
charge of any institution within the jurisdiction of the department. N.J.S.A. 30:1-12. The correctional institutions of the Department are specified in N.J.S.A. 30:1-7. None of the county detention facilities is included.
Therefore, the Commissioner has the power to issue orders, rules and regulations for the state correctional institutions, being the prisons, reformatories and certain other enumerated institutions within her Department, and to administer and control them. In contrast, as already shown, the applicable statutes give her only the mere right to visit and inspect the county institutions and to make a report or recommendations, but with no power or duty to either approve or to set standards or to issue rules, regulations, orders or directions with respect thereto. Accordingly, we hold that the word "may" in N.J.S.A. 30:1-16 was used, as it inherently implies, in the permissive sense.
As asserted by plaintiffs, the care, operation and management of the various county jails and other similar facilities are by law the responsibility of either the county sheriffs or the county boards of freeholders. N.J.S.A. 30:8-17 to 19.
Plaintiffs also argue that, assuming the Commissioner's obligations are only discretionary, her refusal or failure to act accordingly constitutes an abuse of discretion and, therefore, her conduct violates the Equal Protection Clause of the 14th Amendment and thus a cause of action arises in their favor under the Civil Rights Act, 42 U.S.C.A. § 1983, which makes one liable for redress if he, under color of any enactment, regulation, custom or usage of any state or territory subjects any citizen of the United States to the deprivation of any civil rights.
We do not agree. Before the Civil Rights Act can be applied to compel the granting of relief by a particular official, there must be a finding that that official is in fact empowered by law to act. As the trial judge stated, Klein was only empowered to bring an action under N.J.S.A.
30:1-16.*fn3 This only placed her in the same position as plaintiffs, who have already instituted this action. It does not change the existing fact that, apart from that, she is powerless under the applicable statutes to ...