(dissenting). The obvious purpose of the tolling statute, N. J. S. 2A :14-22, is to preserve a plaintiffs cause of action where service cannot be had on a defendant by reason of his absence from the State. N. J. S. A. 39:7-2 provides that service may be effected on a nonresident motorist by serving the Director of Motor Vehicles. Because the *304nonresident motorist is always amenable to service of process through the Director of Motor Vehicles, he is at least as vulnerable to service as a resident of the State. Accordingly, the weight of authority holds that a tolling provision does not operate to suspend the statute of limitations where the nonresident is amenable to service through a statutory agent. Nelson v. Richardson, 295 Ill. App. 504, 15 N. E. 2d 17 (App. Ct. 1938); Coombs v. Darling, 116 Conn. 643, 166 A. 70 (Sup. Ct. Err. 1933); Annotations, 94 A. L. R. 485 (1935); 119 A. L. R. 859 (1939); 17 A. L. R. 2d 502 (1951).
These authorities are persuasive. The statute of limitations is one of repose, the purpose of which is to spare the court from litigation of stale claims and the citizen from being put to his defense after memories have faded, witnesses have died or disappeared, and evidence has been lost. Union City Housing Authority v. Commonwealth Trust Co., 25 N. J. 330, 335 (1957).
To apply the tolling provision in a situation in which the defendant is always amenable to process would be repugnant to the general purpose of the statute of limitations, for the plaintiff is thereby able to defer service indefinitely. The evil results of delay are especially obvious in automobile cases which depend to a great degree on eye-witnesses and their memories. Moreover, were both the tolling provision, N. J. S. 2A :14-22, and the substituted service enactment, N. J. S. A. 39:7-2, applied in cases involving a nonresident motorist defendant, plaintiff would hold a greater advantage over nonresident motorists than over nonresident defendants not subject to service through a statutory agent.
The majority relies on the rule of statutory construction that legislative acquiescence in the judicial construction of a statute is evidence that such interpretation is in accord with the legislative intent. Egan v. Erie R. Co., 29 N. J. 243, 250 (1959). Emphasis is placed on the fact that the 1949 and 1951 amendments to N. J. S. 2A:14-22 made certain changes but did not include any provision with respect to nonresident motorists. Also stressed is the fact that a 1950 bill specifi*305cally excluding the nonresident motorist from the operation of the tolling provision was not adopted.
Although there is logic in the approach of the majority, I am not convinced that the legislative inaction indicates an intention to include a nonresident motorist within the operation of the tolling provision. Admittedly, the rule of legislative acquiescence in a judicial interpretation of a statute is an aid in statutory construction, but it is merely one factor in the total effort to give meaning to the language of that statute. It might be that the Legislature consciously refused to adopt the 1950 amendment and chose to apply N. J. S. 2A:14r-22 to nonresident motorists. However, the nonadoption of the amendment is susceptible to other interpretations. See Hilton Acres v. Klein, 64 N. J. Super. 281, 294 (App. Div. 1960), modified 35 N. J. 570 (1961). The failure of the Legislature to take affirmative action might, in any given instance, be attributable to many causes. On my review of the legislative history I am unable to find an explanation for the Legislature’s passivity.
Furthermore, I cannot attribute to the Legislature an intent to become embroiled in the constitutional issue to which I now turn. Kovacs v. Cooper, 336 U. S. 77, 85, 69 S. Ct. 448, 93 L. Ed. 513, 521 (1949). The majority concludes that the tolling provision as applied to a nonresident motorist defendant does not constitute an arbitrary and discriminatory classification in violation of the equal protection clauses of the State and Federal Constitutions. I cannot agree.
The equal protection clause secures equality of right by forbidding arbitrary discrimination between persons similarly circumstanced, Schmidt v. Board of Adjustment of City of Newark, 9 N. J. 405 (1952), but a statutory classification will not be found unconstitutional where it bears a reasonable and just relation to either the object of legislation or some substantial consideration affecting the general welfare. N. J. Restaurant Ass’n v. Holderman, 24 N. J. 295 (1957). There can be no doubt that the nonresident motorist is similarly circumstanced to the resident motorist in regard to service of *306process by virtue of the substituted service provision, N. J. S. A. 39:7-2. For the purpose of service of process it might well be said that he is a resident of this State. There thus appears to be no reasonable basis in regard to either the legislative purpose or the general welfare to include the nonresident motorist within the operation of the tolling provision. To do so would not only render him more vulnerable to service of process than the resident motorist, but also would afford him less protection than other nonresident defendants. The nonresident motorist represents a substantial class of defendants, and I thus reject the argument that he is merely a member of a small minority incidentally affected by the tolling provision.
Therefore, I am of the opinion that N. J. S. 2 A :14—22, if applied to a nonresident motorist who is always amenable to service of process under N. J. S. A. 39 :¶—2, creates an unreasonable and arbitrary classification in violation of the equal protection guarantees of Article I, paragraphs 1 and 5 of the New Jersey Constitution and the Fourteenth Amendment of the United States Constitution.
I would therefore reverse and remand.
For affirmance —• Chief Justice Weintraob, and Justices Jacobs, Francis, Pboctor, Hall and Haneman—6.
For reversal—Justice Schettino—1.