On appeal from the Superior Court, Law Division, Ocean County.
Milmed, Francis and Coleman. The opinion of the court was delivered by Coleman, J.s.c. (temporarily assigned).
The novel issue in this case is whether dump trucks must be equipped with mud flaps or mud guards which, in turn, depends upon our interpretation of N.J.S.A. 39:3-79.1. Defendant was issued five summonses for operating dump trucks without mud flaps or mud guards. He was found guilty of all the charges following trial in the Municipal Court of the Township of Lacey. He was again found guilty on review by the Superior Court, Law Division, Ocean County, which heard the case de novo upon the transcript of the sound recording of the municipal court trial. R. 3:23-8(a). Both courts imposed the same penalty -- a fine of $15 plus costs of $10 on each of the five violations. This appeal followed.
The facts essential to our determination were stipulated. Two of the summonses issued charged that defendant operated dump trucks without mud flaps and three summonses charged that the trucks were operated without mud guards. Each summons described the body type as dump truck and none of the trucks had mud guards or mud flaps.
On appeal defendant contends that (1) the statute by its terms exempts dump trucks from its requirements and (2) the statutory interpretation urged on behalf of the State would cast doubt on the validity of the statute if it were sustained.
The crucial issue on this appeal involves the proper interpretation of N.J.S.A. 39:3-79.1, which provides:
No person shall operate or cause to be operated any bus, truck, full trailer or semitrailer of registered gross weight exceeding three tons on any public highway unless the same is equipped with suitable metal protectors or substantial flexible flaps on the rearmost wheels, and, in case the rear wheels are not covered at the top by fender, body or other parts of the vehicle, the rear wheels shall be covered at the top by protective means, of such standard type or design and installed in such manner as shall be approved by the Director of the Division of Motor Vehicles in the Department of Law and Public Safety and as shall conform substantially to any requirements of the Interstate Commerce Commission governing similar subject matter, in order to prevent, as far as practical, such wheels from throwing dirt, water or other materials on the windshields of the following vehicles, except in cases in which the motor vehicle is so designed and constructed that the above requirements are accomplished by reason of
fender or body construction or other means of enclosure; provided, however , [emphasis in original] this act shall not apply to pole trailers, dump trucks , tanks, or other vehicles where the construction thereof is such that complete freedom around the wheel area is necessary to secure the designed use of the vehicle. [Emphasis supplied]
Defendant argues that the statute automatically exempts all dump trucks as opposed to only those dump trucks which require freedom around the wheel area in order to be fit for the truck's designed use. The Law Division judge adopted the State's position that only those enumerated vehicles which require complete freedom around the wheel area are exempt from the mud guard or mud flap requirement. The judge reasoned that if the Legislature had intended to automatically exempt those types of vehicles which are enumerated in the statute, it would have put a period after the word "tanks."
This statute was enacted in 1952, but the only reported opinion which has interpreted it is State v. Nappi Trucking Corp. , 149 N.J. Super. 314 (Cty.Ct.1977). In Nappi the court held that because "truck-tractor" and "truck" have separate meanings, the former was "not included within the prohibitory parameters of this statute." Id. at 316-317. Hence, Nappi sheds no light on the portion of the statute which is the subject of this appeal.
In 1953 the Attorney General offered the following interpretation to the Director of the Division of Motor Vehicles:
It is my opinion that pole trailers, dump trucks and tanks are joined in a general classification with such other vehicles to be determined by you, the construction of which require complete freedom around the wheel area. Pole trailers, dump trucks and tanks must also be of the type which necessitates such complete freedom as specified in the act; otherwise, they are required ...