Eagle Truck Transport, Inc. v. BOARD OF REVIEW, ETC.

*292 Bueliitg, J.

(dissenting). In approaching the interpretive question herein, enlightenment on legislative intent wherever found must be carefully considered. The aid obtained from the legislative conduct since enactment of the 1950 amendment to 5(a) leads to a construction that the disqualification for benefits resulting from a voluntary quit is not tolled by employment with an out-of-state employer. On this point, the majority assert that:

“There is no doubt that the failure of the lawmakers to amend a statute after a construction has been placed upon it by an agency charged with its administration is often spoken of as some evidence that the interpretation accords with their intent in enacting it. Barringer v. Miele, 6 N. J. 139, 144 (1951). However, the inference is not at all conclusive and cannot be considered as a bar to a later determination by the agency or by the courts that the earlier view was erroneous.”

There is here not merely legislative silence or inaction following administrative interpretation, but a failure to enact a proposed change in the law. The sponsors of amendments designed to override the administrative construction placed the problem in specific terms squarely before the Legislature.

In 1951, the year following the 1950 amendment to 5(a), the meaning of which we are presently concerned with, there was introduced in the House of .Assembly a bill to further amend 5(a). That bill as reported by the Unemployment Compensation Committee of the House of Assembly deleted the crucial phrase “earned in employment (which may be with an employing unit having in employment one or more individuals)” and substituted therefor the language “worked and earned thereafter in any type of service an amount equal to at least four time his weekly benefit rate, as determined in each case.” (Assembly Bill 172 (1951).) The bill passed the Assembly and reposed in the Senate Committee on Labor Industries and Social Welfare. Had it passed, it would have obviated the present problem. By taking out the words “in employment” and substituting the words “in any type of service” the bill would eliminate the necessity for “covered employment” in order to toll disqualification and would also allow excluded employments *293 such as agricultural to toll disqualification. That the Legislature was aware that 5(a) in its present form did not operate to toll disqualification for benefits under the facts in the instant case is made patently apparent from the introducer’s statement to Assembly Bill 172 which reads:

“Subsection 5(a) was amended last year by Chapter 172 P. L. 1950. Through inadvertence, the new provisions were made unduly harsh upon the employee in purging his voluntary quit without good cause. The 1950 provision permits the employee to lift the disqualification only by working in employment covered by the Nexo Jersey laxo. Also it prevents the worker from lifting the disqualification if he works in excepted or excluded employment; for example, on a farm, in a home, etc. It has been found particxilarly severe in the ease of those xoorhers xoho live in the metropolitan areas and xoho procure jobs across State lines. Inasmuch as xoorh in the other States is very seldom performed for a Nexo Jersey employer or covered by the Nexo Jersey laxo, the xoorh perfox-med in the other States, and the remuneration received therefor, do not count in favor of the disqxialified employee.

The new rewrite both eliminates all these objections and carries out the fundamental purpose of the disqualification feature. The worker is asked to demonstrate that he has genuinely rejoined the labor market. He should be permitted to make his demonstration by working xoherever a job is available to him and in the kind of job to which he succeeds in attaching himself.” (Emphasis supplied)

From the Legislature’s viewpoint, the construction presently urged by Eagle was admitted and the salient fact, so far as we are concerned, is that such a construction did not move the Legislature to action. From such fact I can only infer an acquiescence in the Board’s original construction of the act.

Other amendments to 5(a), with similar statements of purpose appended to that included in Assembly Bill 172 (1951) were unsuccessfully proposed each year since 1951. 1952 (Assembly Bill 236); 1953 (Assembly Bill 437); 1954 (Assembly Bill 81); 1955 (Assembly Bills 4 and 224); 1956 (Senate Bill 264) (Assembly Bill 21); 1957 (Senate Bills 19, 127, 241); 1958 (Senate Bills 30, 303); 1959 (Assembly Bill 389).

Assembly Bill 437 (1953), as reported by Committee Substitute passed in the Assembly, was received in the *294 Senate and given a second reading, but no action was taken thereafter. Assembly Bill 81 (1954) as reported by Committee Substitute, likewise passed the Assembly, was given a second reading in the Senate, and thereafter was recommitted to the Judiciary Committee of the Senate where it reposed. The Committee Substitute of Assembly Bill 437 and Assembly Bill 81 did not change the crucial language from the original proposals. The other bills above referred to, with the exception of Assembly Bill 236 (1956) which received a second reading in the Assembly, were not reported out of committee. Other proposed amendments to 5(a) which failed of enactment and which do not contain statements of purpose specifically referring to the present problem but which might also be construed so as to allow tolling of disqualification under the instant facts are: Assembly Bill 287 (1951); Assembly Bill 201 (1952); Senate Bill 265 (1956) ; Senate Bill 192 (1957); Assembly Bills 286, 510 (1957) ; Senate Bill 74 (1958); Assembly Bills 98, 339 (1958) ; Assembly Bill 301 (1959), which passed Assembly February 16, 1959 and was on that date referred to Senate Committee.

If we once accept legislative history as a relevant interpretive guide, see Deaney v. Linen Thread Co., 19 N. J. 578 (1955), then we ought to follow where it logically leads. The majority have accomplished what the sponsors of the many bills failed to achieve, and what the Legislature has not thought provident to enact. This, I think, borders on judicial legislation in its accurate sense, i. e., the substitution of the judicial view of the wisdom of a particular policy in instances where a contrary legislative view is expressed or where, as here, fairly implicit.

Accordingly I vote to reverse the order from which the appeal has been taken.

For affirmance—Chief Justice Weintraub, and Justices Heher, Jacobs, Francis and Proctor—5.

For reversal—Justice Burling—1.