author: Kilkenny, J. A. D.

text:
    FAY E. BURGOON, ET AL., PLAINTIFFS-APPELLANTS, v. BOARD OF REVIEW, DIVISION OF EMPLOYMENT SECURITY, DEPARTMENT OF LABOR AND INDUSTRY, STATE OF NEW JERSEY, DEFENDANT-RESPONDENT. WILLIAM L. BURNS, ET AL., PLAINTIFFS-APPELLANTS, v. BOARD OF REVIEW, DIVISION OF EMPLOYMENT SECURITY, DEPARTMENT OF LABOR AND INDUSTRY, STATE OF NEW JERSEY, AND ARMSTRONG CORK CO., DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey-Appellate Division
    Argued March 18, 1968
    Decided May 6, 1968.

      Before Judges Goldmann, Kilkenny and Carton.

      Mr. Albert K. Plone argued the cause for appellants (Messrs. Plone, Tomar, Parks & Seliger, attorneys).

      Mr. Edward A. Kaplan argued the cause for respondent Board of Review, Division of Employment Security, Department of Labor and Industry, State of Mew Jersey.

      Mr. Frederick J. Rohloff argued the cause for respondent Armstrong Cork Co. (Messrs. Archer, Greiner, Hunter & Read, attorneys).
   The opinion of the court was delivered by

Kilkenny, J. A. D.

These are consolidated appeals by two groups of claimants from final decisions of the Board of Review, holding them disqualified under N. J. S. A. 43 :21-5 (d) from receiving unemployment benefits during two strike periods in March 1965 at the Armstrong Cork Company plant in Millville, New Jersey, where they had been employed. The Bureau found that their unemployment from March 1, 1965 through March 9, 1965 and from March 18, 1965 through March 28, 1965 was due to stoppages of work which existed because labor disputes at the Armstrong plant, and that the claimants did not come within the exemptions specified in N. J. S. A. 43:21-5(á).

Armstrong manufactures glass containers at its Millville establishment. Its employees belong to several different unions. For example, those engaged in the warehousing and shipping operations, as well as yard truck activities, are members of Teamsters Local Union 676. The automatic machine operators belong to Local 7 of the Glass Bottle Blowers Association of the United States and Canada. The Burns group of 121 claimants is in that local. The production and maintenance workers are members of Local 257. Locals 257 and 7 are both subject to the jurisdiction of the same International Union. The Burgoon group of 689 claimants belongs to Local 257. Each local negotiates its own separate contract with the employer, and each meets separately and has its own set of officers. However, Locals 7 and 257 are in a common International Union, receive aid therefrom in negotiating contracts and contribute twenty-five cents monthly from each member’s dues to a common strike fund maintained by the International.

I

The genesis of the first strike was the creation of eight new jobs by Armstrong and its assignment of those jobs to Teamsters Local 676. Local 257 protested this assignment and claimed the jobs for its own members. The eight jobs in this jurisdictional dispute were driving forklift trucks, picking up pallets of ware and transporting them from trailer trains to the company’s warehouse operations.

The contract between Local 257 and Armstrong required submission of the dispute to arbitration. This was done and the impartial arbitrator ruled on January 25, 1965 that the eight jobs should be assigned to Local 257. The ruling was binding on the employer but not on the Teamsters Local which was not a party to and had not participated in the arbitration hearing. Thus, the employer found itself caught in the middle of this jurisdictional labor dispute. Armstrong filed an unfair labor practice charge with the National Labor Eelations Board in order to resolve the job assignment issue and thus extricate itself from its dilemma.

Meanwhile, the Teamsters Local contract expired on February 28, 1965 and it would not renew or extend the contract unless it was allowed to retain the eight jobs. At 12:01 a.m. on March 1, 1965 the Teamsters Local struck the Armstrong plant and the bulk of its 125 members formed mass picket lines at the entrances to the plant. The strike persisted through March 9, 1965 when a temporary settlement was effected before Judge Madden in the federal court in Camden. The stipulation was agreed upon by all interested parties. The job assignment was left temporarily with the Teamsters Local, pending determination by the N. L. R. B., and a pay rate differential was given Local 257 members. (The N. L. R. B. subsequently affirmed the ruling by the arbitrator and the Teamsters Local appealed from that decision).

There is substantial evidence in the record to support the finding by the Appeal Tribunal and concurred in by the Board of Eeview that the failure of members of Locals 7 and 257 to cross the picket lines set up by the teamsters union was not voluntary, but was rather due to fear of violence. It was also found that some members of Local 257 joined the picket lines, but their purpose in doing so was not made manifest and was somewhat incongruous. This unexplained picketing by a handful of Local 257 members was without official union sanction. It is not material to the resolution of the issues before us. We mention it only because it is part of the record.

The members of Locals 7 and 257, who had been idled from March 1 through March 9, 1965 by the teamsters union’s strike, claimed unemployment benefits for that period. The Appeal Tribunal decided that the members of Local 257 were disqualified under N. J. S. A. 43:21-5(ii) because the work stoppage was due to a labor dispute in which they were “directly interested.” It ruled, however, that the members of Local 7 were not disqualified from receiving unemployment benefits because they were not involved in the labor dispute, had not participated in it or helped to finance it in any way, and their not crossing the picket lines was involuntary.

The Board of Eeview agreed with the fact findings of the Appeal Tribunal and its conclusion disqualifying the members of Local 257 because of their direct interest in the labor dispute which caused- the work stoppage. However, it held that the members of Local 7 were also disqualified during this first strike period because the members of both Locals 7 and 257 “were all in one grade or class” and by reason thereof disqualified under the provisions of N. J. S. A. 43 :21-5(d).

The Burns group in Local 7 and the Burgoon group in Local 257 assert that these decisions by the Board of Eeview are erroneous. Both groups claim to be entitled to unemployment benefits during their enforced idleness due to the strike of Teamsters Local 676.

As To First Strike Period — March 1 To March 9, 1965

A. Claims Or The Members Or Local 257 The Burgoon Abpeal

N. J. S. A. 43:21-5(d) provides in pertinent part:

“An individual shall be disqualified for benefits:
* * * * * * * *
(d) Eor any week with respect to which it is found that his unemployment is due to a stoppage of work which exists because of a labor dispute at the factory * * *, provided, that this subsection shall not apply if it is shown that:
(1) He is not participating in or financing or directly interested in the labor dispute which caused the stoppage of work; and
(2) He does not belong to a grade or class of workers * * * any of whom are participating in or financing or directly interested in the dispute; provided, that if in any case in which (1) or (2) above applies separate branches of work which are commonly conducted as separate businesses in separate premises are conducted in separate departments of the same premises, each such department shall, for the purposes of this subsection, be deemed to be a separate factory, establishment or other premises.”

It is obvious that the unemployment of the members of Local 257 during the period of the Teamsters Union strike was due to a stoppage of work which existed because of a labor dispute at the Armstrong factory. It is also clear that the members of Local 257 were “directly interested in the labor dispute which caused the stoppage of work” and by reason thereof not entitled to exemption from the disqualification provision of N. J. S. A. 43 :21-5 (d).

They argue that the strike was not called by their local union and that they had no labor dispute with their employer, since they had successfully settled their dispute by arbitration. But, in reality, Local 257 generated the labor dispute by protesting the employer’s initial assignment of the eight jobs to Teamsters Local 676, by pressing the issue through arbitration and by placing the employer in the middle of a jurisdictional tug-of-war. Their direct interest in this labor dispute is also manifested by their participation in the stipulation of settlement entered into in the federal court, which brought an end to the strike. In that settlement the members of Local 257 were awarded a rate of pay differential as if they were performing the eight jobs, while allowing the members of Teamsters Local 676 to do the work entailed by these jobs pending resolution of the N. L. R. B. proceedings.

We agree with the conclusion of the Board of Review that the direct interest of the members of Local 257 in the jurisdictional labor dispute which caused the stoppage of work and in whose temporary resolution they received tangible benefits disqualified these employees from unemployment benefits under N. J. S. A. 43:21-5(d) during this period of work stoppage.

B. Claims Of Members Of Local 7 The Burns Appeal

The evidence supports the finding that the members of Local 7 did not participate in or finance and they were not directly interested in the labor dispute which caused the stoppage of work from March 1 through March 9, 1965 when the members of Teamsters Local 676 were out on strike. The jurisdictional issue involved the two contending local unions—676 and 257—with the employer caught in between.

However, the Board of Review, in reversing the Appeal Tribunal as to this aspect of the case, decided that the members of Local 7 were disqualified by reason of N. J. S. A. 43 :21-5(d) (2), in that they belonged “to a grade or class of workers” who were “directly interested in the dispute.” In other words, the disqualification of the workers, who were members of Local 257 and directly interested in the jurisdictional dispute, effected the disqualification of the members of Local 7, because the latter belonged to the same grade or class of workers as those in Local 257.

Armstrong’s glass container factory in Millville is known as a “flow plant”. That means that the manufacturing process is a continuous and coordinate one, albeit workers may he housed in separate but connected buildings on the premises. Each function is dependent upon the completion of the preceding one. When one part of the manufacturing process is stopped, the entire operation must necessarily be suspended. The work performed by the production employees, who are members of Local 257, precedes and flows to the automatic machine operators, who belong to Local 7. Though there are separate departments where each group of employees performs its part in achieving the end result, the respective departments cannot be conducted as separate businesses, so as to constitute each a separate factory within the meaning of the proviso in N. J. S. A. 43 :21-5(d) (2). The continuous and coordinated flow is from molten glass to finished glass containers by the cooperative performance of the production workers in Local 257 and the automatic machine operators in Local 7.

This combined and integrated effort was the basis for the conclusion reached by the Board of Beview that the members of Local 7 were of the class or grade of workers as those in Local 257 who were directly interested in the result of the jurisdictional labor dispute.

In Gerber v. Bd. of Rev., etc., N. J. Dept. of Labor and Industry, 20 N. J. 561 (1956), the Supreme Court pointed out:

“The words ‘grade or class’ in the context of N. J. S. A. 43:21-5 (d) obviously was intended to mean and include something more or different than the group of employees directly interested in the dispute, otherwise it would seem to be surplusage.” (at p. 568)

An analogous statutory provision was held to “contemplate classes which may include nonorganized workers or members of more than one union.” Cameron v. De Board, 230 Or. 411, 370 P. 2d 709, 714 (1961). See, too, Westinghouse Elec. Corp. v. Unemployment Comp. B. of R., 165 Pa. Super. 385, 68 A. 2d 393 (1949); Dravo Corp. v. Unemployment Compensation Bd. of Rev., 187 Pa. Super. 246, 144 A. 2d 670 (1958).

Where, as here, both locals belong to the same International Union, to which each is subject and as to whose efforts each is a beneficiary, the members are of the same grade or class even though they belong to separate locals. Especially is this true where an operation is closely integrated, each function depending immediately upon the completion of the prior one, so that if one stage of the unified assembly line stops the entire operation ceases. See Amico v. Bd. of Rev., Div. of Emp. Sec., 49 N. J. 159, 171 (1967) and the cases from other jurisdictions cited therein. See, too, Basso v. News Syndicate Co., Inc., 90 N. J. Super. 150 (App. Div. 1966).

The fact that the claimants, members of Local 7, bargained separately for a new contract did not, by itself, place them in a different grade or class of employees in view of the closely integrated production line operation at the plant. As the evidence establishes, when one essential part of the operation is stopped, all production necessarily ceases.

We concur in the conclusions reached by the Board of Review as to the first strike period commencing March 1, 1965.

II

The second strike was called by members of Local 257 and was due to a labor dispute with their employer. Their contract had expired on Eebruary 28, 1965, but it was extended until March 17, 1965 pending negotiations for a new contract. When negotiations broke down on March 17, Local 257 struck the Armstrong plant on March 18 and set up picket lines. The mere absence of the production workers in Local 257 caused a work stoppage for the automatic machine employees in Local 7. As noted above, the work done by those in Local 257 preceded that done by those in Local 7 in the continuous, coordinate flow of the manufacture of glass containers. The members of Local 7 were not discharged or laid off by the employer, as they now contend, but were simply advised that, without the production workers, it could not operate and, hence, there was no work for them to do. They were to come back when operations resumed. That their jobs were not terminated is manifested by the fact that they all returned to work as soon as the plant was put in operation at the end of the strike.

Moreover, the president of the International Union, to which both Locals 7 and 257 were subject, notified Local 7 that the strike by Local 257 must be recognized as “officially sanctioned” and the members of Local 7 should “honor picket lines” and cooperate to effect a complete shut down of the employer’s plant. Out of the common strike fund, made up from a portion of the monthly dues paid by members of both locals, strike benefits of $18 weekly were paid to members of the striking Local 257. Based thereon, the Appeal Tribunal and the Board of Review concurred in finding that the members of Local 7 had participated in and helped to finance Local 257’s strike, thereby disqualifying its members from unemployment benefits under N. J. S. A. 43 :21-5 (d). The Board of Review also found the members of Local 7 disqualified because they were of the same “grade or class” as the members of Local 257, the striking union.

The members of the striking Local 257 concede that they were disqualified during the period of their own strike.

We agree with the holding that, since work would have been available to the members of Local 7 except for the strike by Local 257, the proximate cause of their unemployment was the labor dispute stoppage rather than lack of work. Ablondi v. Board of Review, 8 N. J. Super. 71, 79 (App. Div. 1950); Mortensen v. Bd., etc., Dept. of Labor and Industry, 37 N. J. Super. 236 (App. Div. 1955), affirmed 21 N. J. 242 (1956).

Also persuasive is the fact that the claimants in Local 7 belonged to the same International Union as did their co-workers in Local 257 and their dues were used, at least in part, to finance the strike. Wasyluk v. Mack Manufacturing Corp., 4 N. J. Super. 559 (App. Div. 1949); Gerber v. Bd. of Rev., etc., N. J. Dept. of Labor and Industry, 20 N. J. 561 (1956). “Whether claimant’s contribution was small or large is not the test for disqualification under N. J. S. A. 43:21-5(d). * * * Any financing of a labor dispute disqualifies a claimant from receiving unemployment benefits.” Soricelli v. Board of Review, etc., 46 N. J. Super. 299, 312 (App. Div. 1957). There, a contribution of $1 to a strike fund by a claimant disqualified him from receiving unemployment benefits.

Finally, there was a finding that the claimants in Local 7 were directly interested in the outcome of Local 257’s contract negotiations in that the terms and conditions in such new contract were material to their own contract negotiations.

There was substantial evidence in the record to support the findings and conclusions of the administrative agency. Since the members of Local 7 did not meet the requirements of the escape clause of N. J. S. A. 43 :21-5(d), they were disqualified under the statute from receiving unemployment benefits during the second strike period commencing March 18, 1965.

The final decisions under review are affirmed.


source: Caselaw Access Project

author: Conford, S. J. A. D.

license: Public Domain

text:
    JOHN BRANAGAN, MARY BRANAGAN, JOHN WEHMANN, MILDRED WEHMANN, AND EUGENE ABBIATE, PLAINTIFFS-APPELLANTS, v. JOHN SCHETTINO, LENORA SCHETTINO, BOARD OF ADJUSTMENT OF THE BOROUGH OF FAIRVIEW, AND JOHN SARTOR. BUILDING INSPECTOR OF THE BOROUGH OF FAIRVIEW, DEFENDANTS-RESPONDENTS. JOHN WEHMANN, MILDRED WEHMANN, JOHN BRANAGAN, MARY BRANAGAN, AND EUGENE ABBIATE, PLAINTIFFS-RESPONDENTS, v. JOHN SCHETTINO, LENORA SCHETTINO, BOARD OF ADJUSTMENT OF THE BOROUGH OF FAIRVIEW, AND JOHN SARTOR. BUILDING INSPECTOR OF THE BOROUGH OF FAIRVIEW, DEFENDANTS-APPELLANTS.
    Superior Court of New Jersey Appellate Division
    Argued March 4, 1968
    Decided May 3, 1968.

      Before Judges Conford, Collester and Labrecque.

      Mr. Joseph G. Woodcock, Jr. argued the cause for plaintiffs (Messrs. Hari, Mandis, Rathe & Woodcock, attorneys).

      Mr. Allan H. Klinger argued the cause for defendants Schettino (Messrs. Calissi, Gelman, Cuccio & Klinger, attorneys).
   The opinion of the court was delivered by

Conford, S. J. A. D.

These are two appeals, consolidated for argument, involving separate actions of the Board of Adjustment of Fairview in reference to the same property. In No. A-42-67, referred to hereinafter as the Branagan case, the Law Division, Bergen County, affirmed the grant of a “hardship” variance by the board under N. J. S. A. 40:55-39(c). in favor of the Schettinos, owners of a 25' x 112' lot, for the erection of a two-family dwelling thereon. In No. A-446-66, hereinafter denominated the Webmann case, the Law Division, prior to its decision of the Branagan case, had reversed the board of adjustment in respect of its ruling, in an appeal brought under N. J. S. A. 40:55-39(a), from an adverse decision by the building inspector, that the Schettinos had the right, under an exemption based upon section 8 of the 1959 amendment to the borough’s zoning ordinance, to build the two-family house on the lot. The court construed that section against the claimed right of construction.

Certain facts stipulated or proved are material to resolution of both appeals.

In May 1965 the Schettinos purchased from one Schwar-zenbach three contiguous lots, each 25' x 112', numbered, reading from west to east on an old filed map, 25, 26 and 27. The lots front on Prospect Avenue and lot 25 abuts Cottage Place at the northeasterly corner of the intersection of these streets. The deed of conveyance referred to and described lots 25 and 26 as a parcel separate from lot 27, as follows:

“* * * [W]hieh two (2) lots, plots, tracts or parcels of land hereby intended to be described and conveyed together forming a plot of tract of land Fifty (50) feet in width, front and rear, with a depth of One Hundred and Twelve (112) feet on each side and throughout, and situated at the Northeasterly corner of Cottage Street and Prospect Avenue * *

A 60-year-old dwelling stood on the middle lot, 26. At the rear of lots 26 and 25 there was an old structure, used as a garage for the dwelling on lot 26, which occupied portions of both lots, with its entrance facing Cottage Place. On the rear of lot 27 was a small storage shed.

The area where the property is situated has for some time been zoned for two-family residential occupancy. Section 5 of the zoning ordinance prior to the March 24, 1959 amendment provided:

“Hot area per family: No dwelling or apartment house shall hereafter be erected or altered to accommodate or make provision for more than 2 families to each 2,500 square feet of lot area, provided that any plot existing at the time of the passage of this Act, may be built upon for dwelling purposes.”

On March 24, 1959 section 5 was amended to read:

“ ‘Lot Area Per Family’ No dwelling shall hereafter be erected or altered to accommodate or make provisions for more than two families to each four thousand (4,000) feet of lot area. (A lot having a frontage of 40 feet and a depth of 100 feet shall be deemed to be conforming.)”

At the same time section 8 was added, reading:

“Section S. Any existing single vacant lot or plot of land which is deficient in size and area to the conforming provisions and requirements of lot size and area as herein set forth and defined, shall after the passage of this Ordinance be exempt from the provisions and requirements so set forth herein, and a permitted building or structure may be erected thereon provided that the said lot or plot shall contain not less than 2500 square feet of lot area as previously required by the Ordinance of which this Ordinance is amend-atory thereof and supplemental thereto. For the purpose hereof, any lot or plot which stands alone and is singularly described, or any two lots or plots which do not face the same street, although held or described together, shall be considered separate single lots or plots. All other lots or plots which either singularly or together conform to the provisions and requirements of a conforming lot size and area, shall not be reduced in any manner, in width, depth, or area, so as to violate the said conforming lot size and area herein set forth and defined.”

As will appear, the Wehmann case involves the question whether the foregoing section exempts lot 25 from the 4,000 square-foot and 40 front-foot requirements of the ordinance.

It appears from an opinion in another Law Division case rendered by a different Bergen County judge, dated September 17, 1965 (included in the Schettinos’ appendix), that the Schettinos’ grantor had obtained a building permit for construction of a two-family dwelling on lot 27 May 10, 1965 (inadvertently indicated in the opinion as 1967) on the basis of section 8, quoted above. On complaint of some neighbors when construction began, the permit was revoked, but the Schettinos were successful, in the action mentioned above, in securing a determination that they had the right to build under section 8. They have since constructed the two-family house on lot 27 and have sold it to others.

Early in 1966 the Sehettinos sold the middle lot, 26, to their uncle, Prank Trínchese. The bona fides of this sale has not been inquired into below, but it is of interest that, so far as appears, the encroachment of the garage over onto lot 25, with access across that lot from Cottage Place, presented no obstacle to the transaction.

On April 18, 1966 the Sehettinos applied to the building inspector for a permit to build a two-family dwelling on lot 25. This was denied because the plot was undersized. An appeal to the Board of Adjustment resulted in a reversal in June 1966 on the basis of Section 8 and a direction for the permit to issue. Schettino promptly began construction and continued until completion of the building notwithstanding the institution of the Wehmann action in the Law Division on July 5, 1966. On November 29, 1966 the Law Division reversed the decision of the Board of Adjustment, holding that Section 8 did not authorize the exemption of lot 25 from the minimum area requirements.

The Sehettinos appealed to this court from the last-mentioned judgment and also applied to the Board of Adjustment for a variance under N. J. S. A. 40:55-39 (c). After a hearing, the Board granted a variance on a verbal resolution “that the writing of the ordinance created a hardship on the * * * owner at the passing of the ordinance and subsequent owners”; that there would be no substantial detriment; the building would be an asset to the area, and it would not substantially affect the zone plan of Fairview. However, this ruling was conditioned upon the removal of the garage from the rear of lots 25 and 26, a condition promptly assented to by the Sehettinos at the hearing. (Whether the assent of Trínchese was obtained does not appear.)

On complaint by action in the Superior Court by the neighbor-plaintiffs in the Branagan case, the action of the Board of Adjustment was affirmed.

I

We first consider the validity of the judgment in the Wehmann case. We agree with that determination. Section 8 specifies for exemption from the minimum lot size requirements “any single vacant lot or plot * * Lot 25 was not vacant. There was a garage encroaching upon it. Lots 25 and 26 were an integrated parcel as held and used. Lot 25 was not only the site of part of the garage which served a use auxiliary to the dwelling on lot 26, but it furnished street access to and from that garage, whether access was via Cottage Place, as is inferable from the proofs, or via Prospect Street.

That Section 8 did not in such circumstances contemplate an exemption for lot 25 is left free from any doubt by its last sentence:

“All other lots or plots which either singularly or together conform to the provisions and requirements of a conforming lot size and area shall not be reduced in any manner * * * so as to violate the said conforming lot size and area.”

It seems to us that the conveyance to Trinchese did precisely what this sentence forbade as a means of turning an existing, conforming 50-foot plot into two nonconforming 25-foot plots, for the profit of the owner and to the derogation of the intent of the ordinance.

II

In relation to the Branagan case, we pass the obvious deficiency of the oral resolution of the Board in granting the paragraph (c). variance, in omitting any findings of fact in support of the affirmative conclusion of hardship. There is, moreover, a notable failure to resolve disputes in the testimony as to whether there were any other two-family houses on 25-foot lots in the area near the subject property. That fact has a bearing on the merits of the Board’s con-elusion that the negative criteria of the omnibus clause of N. J. S. A. 40 :55-39 were met.

We are satisfied, as a matter of law, that the record before the Board cannot support a variance under N. J. S. A. 40: 55-39 (c) in respect of the necessary affirmative showing of hardship. In Griffin Const. Corp. v. Board of Adjustment of Tp. of Teaneck, 85 N. J. Super. 472, 477 (App. Div. 1964), certification denied 44 N. J. 408 (1965), we distinguished the case there presented from such a one as we have here when we said:

“* * * Where an original owner would be entitled to a variance under a specific set of facts, any successor in title is ordinarily also entitled to such a variance, providing that no owner in the chain of title since the adoption of the zoning restriction has done anything to create the condition for which relief by variance is sought.” (Emphasis added)

Applying the rationale of the foregoing to the instant case, it must be concluded: (1) Schwarzenbach, the grantor to the Schettinos, had no right to such a variance as was here granted upon and after adoption of the zoning amendment in 1959; (2) the Schettinos could stand in no better stead than Schwarzenbach upon their purchase in 1965, and (3) to the extent that lot 25 could arguably be deemed an isolated lot after the conveyance to Trínchese of lot 26, that condition is obviously a consequence of the Schettinos own creation. Schwarzenbach had no right to a variance from the 4000 square foot requirement for two-family dwellings for lot 25 upon amendment of the ordinance as it was then being used as a parcel integrated with lot 26, in common ownership, to provide garaging and vehicular access for the benefit of the dwelling on lot 26. The two lots as thus held and used as an entirety conformed with the amended zoning policy for a minimum lot area of 4,000 square feet. Even the deed description accords with that concept. The Schettinos can stand in no better position than their grantor. Under these circumstances, to allow the variance for lot 25 after the voluntary severance of common title by act of the Schettinos was to subserve a purely private economic interest at the expense of the public interest in the maintenance of the integrity of the zoning plan. This represented an abuse of the discretionary power of the Board of Adjustment under the statute and cannot be upheld. Distinguish the factual situation in Griffin Const. Corp. v. Board of Adjustment of Tp. of Teaneck, supra.

There being no sound basis for application of the affirmative “hardship” criteria of the statute, we need not expressly determine the merits of the generalized conclusion of the Board, in the tenor of the statutory language, of absence of violation of the negative criteria, i. e., no substantial detriment to the public good or to the zone scheme and plan. In this regard, while the defendant Schettino gave general testimony that there were other two-family homes On 25-foot lots “in the area” (controverted by plaintiffs’ proofs), specific information from the tax records furnished this court by the parties after oral argument indicates no such instances (aside from the variances granted the Schettinos on lots 25 and 27) except one in Tax Block 76 (the locus in quo is in Block 75) on Pairview Avenue, more than two blocks from the subject property, and a number on Sedore Avenue and Burdette Place, even further away, in Block 77D. The immediate area in the two-family zone seems to have all been developed on substantially larger lots, with one-and two - family homes predominating. There are garden apartments on Pairview Avenue in a different zoning district and a few nonconforming commercial uses. There is no evidence in the case to support the Board finding that construction of the two-family building on the subject lot would be “an asset” to the area. Por reasons stated above, the variance inherently militated against the revised 1959 upgrading zoning policy of the municipality without the .justification of a true “hardship” to the owner.

Ill

There remains for determination an issue raised in the pleadings and pretrial order in the Branagan case as to whether, assuming the invalidity of both decisions of the board of adjustment as declared above, the doctrine of estoppel or relative hardship is a defense against plaintiffs’ demand in the Branagan complaint that the Sehettinos be ordered to bring their property into compliance with the ordinance. This relief would obviously entail a removal of the now-completed building from lot So. Eor the principles which are or may be pertinent to these issues see Jantausch v. Borough of Verona, 41 N. J. Super. 89, 93-95 (Law Div. 1956), affirmed 24 N. J. 326, 330 (1957); cf. Sautto v. Edenboro Apartments, Inc., 84 N. J. Super. 461 (App. Div. 1964), certification denied 43 N. J. 353 (1964).

No proofs were taken before the Law Division in relation to this issue, but the court decided it summarily against the Sehettinos on the basis of certain proofs relative to the question adduced before the Board of Adjustment. Little or no attention is given the point in the briefs before us.

The proofs mentioned were improperly taken before the Board of Adjustment as the issue of estoppel was not one for that agency in a N. J. S. A. 40:55-39c. proceeding. Jantausch v. Borough of Verona, supra, 41 N. J. Super., at p. 93. The question presented is not an easy one, and the Law Division should have taken proofs on it before deciding it. Eor the factors which are pertinent, and as to which full findings of fact by the trial court are a requisite to conclusions of law, see the Jantausch and Sautto cases cited above, and others in that area of the law.

The judgment in the Wehmann case is affirmed. The judgment in the Branagan case is reversed; the affirmance therein of the grant of variance is set aside; and the cause is remanded to the Law Division for a trial only of the issues oC estoppel and relative hardship. Final judgment should be entered thereafter after full findings of fact and conclusions of law. We do not retain jurisdiction. Costs on these appeals to plaintiffs in both cases.


author: Sullivan, S. J. A. D.

text:
    THE STATE OF NEW JERSEY, PLAINTIFF-APPELLANT, v. ANDREW SLOBISKI, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued April 29, 1968
    Decided May 9, 1968.

      Before Judges Sullivan, Foley and Leonard.

      Mr. Edward J. Phelan, Assistant Prosecutor, argued the cause for appellant (Mr. Vincent Panaro, Mercer County Prosecutor, attorney).

      Mr. George L. Pellettieri argued the cause for respondent (Messrs. Pellettieri & Rabstein, attorneys; Mr. Charles J. Casale, Jr., on the brief).
   The opinion of the court was delivered by

Sullivan, S. J. A. D.

The State appeals from an order of the County Court dismissing an indictment. The order for dismissal was entered because of the refusal of the assistant prosecutor to commence the trial on the indictment after the case had been reached for trial on the calendar of ready cases.

In April of 1967 defendant was indicted on a charge of causing death by motor vehicle, the incident having allegedly occurred in December 1965. A bill of particulars was served upon the prosecutor which was not fully answered until January 2, 1968. In the meantime, the case was carried on the trial list from September 1967.

On January 3, 1968 a new trial list for criminal cases was promulgated. The instant case was No. 14 on the list and was marked ready. Towards the end of the month the case appeared on the daily call as No. 6 on the list and was again marked ready for trial. Thereafter, the case was carried ready from day to day until finally it was reached for trial on Thursday, February 1, 1968.

On January 31, 1968 the assistant prosecutor telephoned the attorney for defendant and, after ascertaining that defendant was ready to go to trial, stated that he would call counsel by 4:00 p.m. of that day if he anticipated any difficulty in commencing trial the following morning. No such call was received.

On February 1, when the case was called, the assistant prosecutor stated that the State was not ready to move the indictment because it intended to call some 18 witnesses, members of several police departments, and he had been unable to have the subpoenas issued for these witnesses.

At this point counsel for defendant moved to dismiss the indictment on the ground that defendant was prepared to proceed and the State had been on notice for some time that the case would reach trial shortly and had ample opportunity to prepare for trial.

The trial court pointed out that it was then Thursday afternoon and that on Friday the court had a full calendar of pleas, sentences and motions, and that the most that could be accomplished then was the selection of a jury and possibly the openings, and that the trial itself would not actually begin until the following Monday.

The assistant prosecutor stated that he could not represent that the subpoenas would be served in time for a trial on the following Monday and he felt the State would be prejudiced if a jury was empaneled and the State did not have its witnesses present.

When the court indicated that it would dismiss the indictment unless the State went to trial, the assistant prosecutor called the court's attention to R. R. 3:11-3(b), which provides:

“At any time after 6 months following the return of an indictment or the filing of an accusation, the Assignment Judge may direct that the trial of the indictment or accusation shall be moved upon a day specified. Upon failure of the prosecuting attorney to comply with such order, the Assignment Judge may order the indictment or accusation dismissed, which dismissal shall be the equivalent of a judgment of acquittal.”

In making its ruling that the indictment would be dismissed unless the State proceeded to trial, the court said:

“This is the oldest active pending indictment' in Mercer Ckranty. The best I can see from a cursory examination of the trial list the indictment was returned April 28, 1967. If there are older active indictments I am informed by the assignment clerk that they were also returned in April 1967. This ease has been on the trial list for many months.
The latest assignment for trial was on the trial list for cases to be moved commencing Wednesday, January 3, 1968. That trial list contained 64 eases. This case was No. 14 on that list. The State has had continuous notice, certainly since January 3, when this list was called the case was to be moved for trial.
About a week ago Mr. Phelan was in attendance at this court on the daily call of eases for trial at which time a list of cases then marked ready was prepared and we have been working from that list since that time, at which time this ease was listed No. 6 ready for trial.
In addition, we have had two judges sitting this week on criminal court and Judge Gebhardt has been trying, without success, Monday, Tuesday, Wednesday, and Thursday to start a ease. The most the prosecutor’s office could provide him with was one case in which a jury was selected and the case adjourned until Monday.
Such use of our court system cannot be tolerated. I have heard nothing which convinces me this case cannot proceed as scheduled. I understand that Mr. Phelan is to leave on vacation on Wednesday and I feel that is the primary reason the State is not ready." While I sympathize with Mr. Phelan, I have no criticism of him since he has just completed a trial of one week and has a perfect right to go on his vacation. There are a number of prosecutors, there is no reason why this case cannot be moved at this time and another prosecutor, after the selection of the jury, able to familiarize himself with the file and the case moved on Monday.
If that is still the State’s position I will rule on the motion.”

Upon the refusal of the assistant prosecutor to commence trial, defendant’s motion was granted and an order dismissing the indictment entered.

On this appeal the argument made by the State is that the trial court could not summarily dismiss an indictment because of the alleged failure of the State to move such indictment for trial until there had been a full compliance with the provisions of R. R. 3:11-3(6). In effect, the State argues that only the assignment judge had the power to dismiss the indictment, and then only after a day certain for trial had been fixed by the assignment judge pursuant to R. R. 3 :11-3 (6).

We conclude that the dismissal of the indictment herein does not run afoul of the provisions of R. R. 3 :11-3 (6). This case had been assigned to the County Court for disposition pursuant to R. R. 3 :4-1, placed on the trial calendar and carried for months. It had been marked ready on the January 3, 1968 calendar and, during the week preceding February 1, 1968, was carried from day to day on a ready basis until it was reached for trial. At this eleventh hour the State, for the first time and without notice to defendant, took the position that it was not ready and could not be ready by the following Mondajr, even though the court pointed out that there was ample opportunity to subpoena necessary witnesses.

The trial court, in the exercise of its control over the trial calendar, had the power to dismiss the indictment when the case had been reached for trial and the State without good reason refused to proceed. This dismissal was not entered under the provisions of R. R. 3 :11-3(b), but was based on the inherent power of the court to control cases on its own trial calendar.

We recognize the public interest involved in the administration of criminal justice. Dismissal of an indictment for failure to prosecute should be ordered only when clearly warranted. Here the prosecutor’s office had ample notice that this case was being reached for trial. The reason given for not being ready was not valid. The refusal to accede to the trial court’s suggestion made it plain that the prosecutor’s office was attempting to frustrate the trial court’s control over its own trial calendar. Under the facts and circumstances here presented, the action taken by the trial court was fully justified.

The order of dismissal is hereby affirmed.


text:
    LLOYD W. MC CORKLE, COMMISSIONER OF INSTITUTIONS AND AGENCIES OF THE STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. BERNARD SMITH, DEFENDANT-APPELLANT. BERNARD SMITH, PLAINTIFF-APPELLANT, v. LLOYD W. MC CORKLE, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued April 22, 1968
    Decided May 10, 1968.

      Before Judges Goldmann, Kilkenny and Caeton.

      Mr. Samuel A. Donio, assigned counsel, argued the cause for appellant Bernard Smith.

      Mr. Eugene T. Urbaniak, Deputy Attorney General, argued the cause for respondent (Mr. Arthur J. Sills, Attorney General of New Jersey, attorney).
   The opinion of the court was delivered by

Kilkenny, J. A. D.

In these combined appeals Bernard Smith, a long-term prisoner at State Prison, charges that: (1) the Commissioner of Institutions and Agencies did not have authority under R. S. 30:4-7 to transfer him to a state mental hospital; (2) his commitment to the Trenton State Hospital was done under circumstances fundamentally unfair and shocking to a sense of justice, in violation of constitutional due process guaranteed by the Fourteenth Amendment, and (3) his continued detention at that hospital entitled him to a writ of habeas corpus, erroneously denied.

At the time of oral argument of this appeal Smith had been retransferred from the Trenton State Hospital to State Prison, thereby making moot substantially all of his claims of administrative and judicial error. Since the issues may arise again, we consider for future guidance the points advanced by him.

Smith was received at State Prison on December 19, 1946 after conviction in Atlantic County of robberies, breaking and entering, and murder. Consecutive sentences aggregating 48 to 52 years were imposed, to which was superadded a consecutive life sentence. Thereafter, the Mercer County Court imposed an additional five-to-seven-year sentence for atrocious assault and battery, which was made consecutive to the aforementioned sentences, and later lodged as a detainer.

The record indicates that 'Smith has a long history of mental illness. As early as November 24, 1954 Dr. Paul B. Means, a staff psychiatrist at State Prison, indicated that Smith required treatment for a psychopathic personality with psychosis paranoid type. By reason thereof, he was transferred to the New Jersey State Hospital for treatment for that condition. Authority for the transfer was based on R. S. 30:4-7. Smith improved and he was returned to prison on February 28, 1964.

On January 27, 1965 Dr. Sidney G-. Fine, a clinical psychiatrist at the State Prison, found Smith in partial remission with a diagnosis of schizophrenic reaction. Subsequent examinations by Dr. Fine in March and April, and on May 21, 1965 disclosed his adjustment as not favorable. Smith was retransferred to the State Hospital on May 21, 1965. He remained there until January 17, 1966 when, his condition having improved, he was again transferred to prison to continue service of his sentences.

Dr. Fine again found him psychotic on August 10, 1966 and on the same day Smith was once more transferred to the State Hospital. After this transfer, Smith challenged his continued hospitalization. Judge Kingfield, sitting specially on September 22, 1966 at the hospital, after hearing and considering the psychiatric testimony presented, found that Smith was still in need of hospitalization. A writ of habeas corpus was denied.

All of the above transfers were made under the authority of R. S. 30 :4-7. However, the last transfer to the hospital was followed by a regular commitment hearing in the Mercer County Court, pursuant to R. S. 30:4-82. At that hearing, Smith asked for the appointment of an attorney or a psychiatrist to act in his behalf. His request was denied by the hearing judge. Following testimony by Dr. Joachim Elizondo and Dr. Pongrac Feniczy, two licensed physicians on the staff of the New Jersey State Hospital at Trenton, and also the testimony of Smith, the County Court determined that he was mentally ill and required hospitalization for such mental illness. Accordingly, an order was entered on May 12, 1967 committing Smith to the New Jersey State Hospital at Trenton to be cared for there at the expense of the State of New Jersey.

Subsequent thereto, as first noted above, Smith recovered his mental competency sufficiently to be returned to State Prison. (We have informally been advised by his attorney that Smith was transferred back to the State Hospital on or about April 28, 1968).

I

We find lacking in merit Smith’s claim that the Commissioner of Institutions and Agencies did not have authority under R. S. 30:4 — 7 to transfer him from State Prison to the State Hospital at Trenton. That statutory provision, originally L. 1918, c. 147, sets forth:

“Each board of managers shall have power to place any inmate in any hospital in the State for such medical or surgical treatment as may be necessary, which cannot properly and adequately be rendered within the institution, and to pay for the care, maintenance and treatment of such persons, the approval of the commissioner first having been obtained.”

To facilitate transfers, often arising under emergency conditions, the Board of Managers of State Prison has authorized the Commissioner, upon request of the Warden, to make these transfers. Smith’s transfers were made pursuant to the statutory authority and administrative procedure.

The State Prison does not have a psychiatric unit wherein patients suffering from mental illness can be treated on a long-term basis. There are available the services of a medical director, psychiatrist and nurses to deal with day-to-day problems. There is an infirmary to accommodate surgical cases and after-care convalescence on a longer term basis, but a ward for psychotic patients has not yet been developed. Hence, when a prisoner becomes mentally ill and poses a danger to himself and other prison inmates, temporary transfer to a mental hospital where he can be properly treated becomes necessary and is sanctioned by R. S. 30:4-7.

These temporary transfers from prison to hospital — now limited to 30 days without formal commitment by L. 1965, c. 59, § 70 (N. J. S. A. 30:4-84) — permits psychiatric treatment of the prisoner under more suitable surroundings at the expense of the State. Their salutary benefits were manifested in Smith’s case by the improvement' in his mental condition as a result of the hospital care. Additionally, the transfer without court commitment proceedings under R. S. 30:4-82 eliminated any stigma possibly attaching to the entry of the court order and the determination of mental illness expressed therein. The prison authorities have found by experience that episodes of psychosis on the part of inmates are frequently of short duration and, therefore, do not warrant formal commitment proceedings.

When the prison and hospital authorities ultimately felt that Smith’s psychotic episodes would continue, then a regular commitment proceeding was pursued under R. S. 30 :4-82.

There has been no showing that Smith has been prejudiced by earlier transfers to the hospital, without court order, for substantially longer periods than now contemplated by law and the administrative regulations. In each instance, he has been retransferred to prison in better mental health. He has not suffered so far as parole is concerned. The parole board heard his application for parole on February 21, 1968. Another hearing is scheduled for May 1969. Much will depend upon an improvement in his mental condition.

We conclude that the Commissioner of Institutions and Agencies does have authority under R. S. 30:4-7, as implemented by the administrative regulations, to make transfers of inmates of State Prison to a state mental hospital, when the need arises, without formal court commitment proceedings, but subject to the limitations imposed by L. 1965, c. 59, § 70; N. J. S. A. 30:4-84.

II

In the hearing before Judge Kingfield, a question arose as to .whether Smith’s challenge as to the propriety of the Commissioner’s order of transfer required review in the Appellate Division under R. R. 4:88, rather than the sought for writ of habeas corpus. Despite the judge’s view that Appellate Division review was the proper remedy, Smith was accorded a hearing on the merits as to his application. A writ of habeas corpus was denied.

The substantive issue became moot when Smith was returned to State Prison, where he wanted to be when he challenged his transfer to the State Hospital.

As to the procedural question, R. R. 4:88 provides a simple and direct appellate review of any final order or decision of any state administrative agency or official. This rule presents an available remedy to one who feels aggrieved by a state administrative ruling.

As to persons confined in any hospital for the insane within this State, an application for a writ of habeas corpus is listed as an appropriate remedy in N. J. S. 2A :67—13, paragraph e, for determining sanity or insanity. So, too, N. J. S. A. 30:4-24.2, in defining the rights of patients, including the mentally ill, committed to institutions in this State, provides:

“Any individual detained pursuant to this act shall be entitled to a writ of habeas corpus upon proper petition by himself, by a relative, or a friend to any court of competent jurisdiction in the county in which he is detained.”

Thus, habeas corpus appears to be an available remedy to one confined in any hospital or institution on the grounds of insanity or mental illness for the purpose of determining the basis for the confinement.

Is habeas corpus an appropriate remedy when it will not effect the complete release of the person detained, but merely alters the place of his confinement from State Prison to a state mental hospital ? The converse of this situation was considered in State v. Newton, 17 N. J. 271 (1955). There, Newton petitioned for a writ of habeas corpus when he was transferred from a mental institution, to- which he had been committed as a sex offender, to State Prison to serve the remainder of his term. Denial by the County Court of the writ was affirmed by the Supreme Court. It noted that Newton was not entitled, in any event, to his immediate release from custody and denial of the writ of habeas corpus might be sustained on that ground alone. But see State v. Wingler, 25 N. J. 161, 180-181 (1957). However, in Newton, the court proceeded to decide the issue on its merits and concluded that the Commissioner of Institutions and Agencies had the authority, in his discretion, to transfer Newton from a mental institution to State Prison to serve the remainder of his term.

In the instant case Smith, too, was not entitled to immediate release from custody when he sought by habeas corpus proceeding to review the validity of the Commissioner’s order, transferring him from State Prison to the State Hospital at Trenton for psychiatric treatment. The orders of May 24, 1965 and August 10, 1966 recited that Smith was “to be retransferred to the State Prison at Trenton upon completion of this special service.” While habeas corpus may have been a technically available remedy, by virtue of N. J. S. 2A :67-13 or N. J. S. A. 30:4-24.2 supra, the ordinary remedy in such a situation was a review of the administrative action in the Appellate Division, pursuant to R. R. 4:88-8. The judicial commitment by the County Court was reviewable by appeal — a remedy Smith pursued herein.

In all events, Judge Kingfield properly denied the writ on the merits. Furthermore, the challenged action was remedied by Smith’s retransfer to State Prison during the pen-dency of this appeal.

Ill

It would have comported more with fundamental fairness to have assigned an attorney to act on Smith’s behalf, when he made a request for an attorney on his application for habeas corpus and at the commitment hearing in the County Court. We acceded to such a request when he sought leave to appeal as an indigent. In our view, counsel should be provided in every judicial commitment proceeding; this is the proper practice and one that should be pursued. See People ex rel. Rogers v. Stanley, 17 N. Y. 2d 256, 270 N. Y. S. 2d 573, 217 N. E. 2d 636 (Ct. App. 1966).

However, the denial of Smith’s requests for counsel at the habeas corpus and County Court hearings raises a moot issue at this time in the light of Smith’s retransfer from the State Hospital to State Prison. What he sought by habeas corpus was thus accomplished; the County Court order of commitment spent itself. Its only use was to effect a commitment under R. S. 30 :4-82. Its vacation at this time would serve no useful purpose.

Under the circumstances, the orders under review are affirmed.


text:
    ROBERT J. FARNHAM AND SOLWEIG FARNHAM, PLAINTIFFS-APPELLANTS, v. JUNE D. STRELECKI, DIRECTOR OF THE DIVISION OF MOTOR VEHICLES, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued April 22, 1968 —
    Decided May 13, 1968.

      Before Judges Coíookd, Collester and Labrecque.

      Mr. Harold L. Gechtman argued the cause for appellants (Messrs. Gechtman and Gechtman, attorneys).

      Mr. Joseph G. Dallanegra, Jr. argued the cause for respondent (Messrs. Dallanegra dDallanegra, attorneys; Mr. Kenneth P. Walsh, on the brief).
   The opinion of the court was delivered by

Conford, S. J. A. D.

The trial court granted defendant’s motion to dismiss this action, brought under the Unsatisfied Claim and Judgment Eund Act, for failure of compliance with the conditions precedent contained in N. J. S. A. 39 :6-78. Neither the notice of motion nor the order of dismissal indicates what provisions of the cited section were not met. Nor is the order accompanied by any findings or statement of reasons other than the oral conclusion at the hearing of the motion that there had not been “sufficient compliance with the act.”

While the complaint is couched in somewhat general terms, it is clear that plaintiffs’ action was based upon the theory that the motor vehicle which collided with theirs “was at the time said accident occurred, in the possession of some person other than the owner without the owner’s consent and that the identity of such person cannot be ascertained,” thus bringing it within the enabling language of N. J. S. A. 39 :6-78.

We gather from defendant’s brief that her position below was that it was made to appear on the motion papers that plaintiffs knew from a police report concerning the accident that the owner of the other ear was one Charles Saxton of 53 Wallace Street, Newark, and that under all the circumstances and the intent of the statute plaintiffs should have first sued Saxton and exhausted their legal remedies for satisfying their claim against him before bringing their action against the Director.

The defendant’s motion was supported only by a copy of a routine accident report made by Patrolman Eizzo of the Orange Police concerning the accident, which occurred May 8, 1965. The space in the form for indication of the name of the driver of the other car is left blank, but Saxton’s name and address are furnished as those of the owner, as is also the identification of the vehicle, which was left at the scene, and abandoned by its driver. The report also sets forth the names and addresses of two sixteen-year-old witnesses of the accident.

• Plaintiffs countered the motion with an affidavit of Patrolman Rizzo. Therein, after saying he was summoned to the scene of the accident, he identifies Saxton as the owner of the other vehicle, but he does not state the source of his information.' He recites that the operator of that vehicle “had run away from the scene of the accident on foot immediately following such accident.” He says he interviewed the two above-mentioned eyewitnesses and the plaintiffs but these discussions ■ “failed to reveal the identification of the driver” — only that the driver ran away on foot before he could be identified. The last paragraph of the Rizzo affidavit summarizes an investigation report of Lt. Leo Hull of the Orange Police which purportedly stated that Saxton had “indicated” that his ear was stolen and the car keys taken from his premises without his knowledge. The operator could not be identified. The affidavit goes on to say that “the report [of Lt. Hull] further discloses the fact that there is no evidence revealed which in any way places the owner of such vehicle at the scene of the accident or as the operator of his vehicle at the time and place in question.”

We were told at oral argument that neither side has recently been able to locate Saxton; also that plaintiffs’ damages are substantial.

N. J. S. A. 39:6-78, applying to so-called ffirit-and-run” cases; -allows an action to be brought against the Director of the Division of Motor Vehicles for satisfaction out of the Eund where “the identity of the motor vehicle and of the operator and owner thereof cannot be ascertained or it is established that the motor vehicle was at the time said accident occurred, in the possession of some person other than the owner without the owner’s consent and that the identity of such person cannot be ascertained.” (Emphasis added.) The' section directs, however, that “no judgment against the director shall he entered in such an action unless the court is satisfied, upon the hearing of the action, that ■ — • * * *

(e) All reasonable efforts have been made to ascertain the identity of the motor vehicle and of the owner and operator thereof and either that the identity of the motor vehicle and the owner and operator thereof cannot be established, or that the identity of the operator, who was operating the motor vehicle without the owner’s consent, cannot be established, * * (Emphasis added)

In the present case it is clear that plaintiffs are relying on the second category of hit-and-run cases twice identified in this section, i. e., where it is claimed that the operator was unknown and that he was operating the motor vehicle without the owner’s consent. It is therefore of no consequence that the requirements of the first category —■ that the identity of the motor vehicle and of the driver and owner thereof are unknown — are not here met. Thus, Tinsman v. Parsekian, 65 N. J. Super. 217 (App. Div. 1961), relied upon by defendant, is not in point.

Two problems are presented for consideration on this appeal, one substantive, the other procedural. The first is the question of the criteria for deciding whether a plaintiff is justified in suing the Director without first suing a known owner of a known vehicle where there is uncertainty over whether the owner was also the operator or whether the operator was driving the vehicle as agent of the owner. The second question is whether the issue as to plaintiff’s satisfaction of condition (e) of the section is determinable on motion prior to the hearing of the case, and, if so, how strong the demonstration of non-compliance with the statute should be to justify dismissal of the action on such motion where there is uncertainty of the kind mentioned above in relation to the substantive question.

We address ourselves to these problems in the order stated.

The first consideration has had consideration in McGainey v. Cable, 65 N. J. Super. 202 (App. Div. 1961), and Nash v. Iamurri, 76 N. J. Super. 167 (Law Div. 1962). In McGainey we held that where, although the injured parties professed uncertainty whether a specific known person was the operator of the car which struck them, they nevertheless averred that they believed she was, and had identified her so to be, they were not entitled to join the Director of the Division of Motor Vehicles as a defendant to be claimed against, alternatively, along with the suspected party as a defendant, but must bring their action initially against the suspect alone. The outcome of that action would determine the availability of later proceedings against the Director provided for by the statute, “unless pending the action they can show such unlikelihood of implication of [the suspect-defendant] as would warrant impleading the Director under N. J. S. A. 39 :6-80” (65 N. J. Super., at p. 204).

In Nash v. Iamurri plaintiff was injured in a night-time parking lot accident. There was circumstantial evidence implicating Iamurri as the driver of the other car, but also an impressive alibi on behalf of Iamurri supported by independent witnesses. Plaintiff sued Iamurri and the Director in the alternative. The claims were severed and plaintiff was directed first to proceed against Iamurri alone. On the trial of that issue, heard without a jury, plaintiff and his wife testified they could not identify the driver of the other car, and their attorney represented to the court that his investigation satisfied him he could not prove Iamurri to have been the driver. lamurri’s motion for dismissal of that action was granted.

Thereafter the Director moved for summary judgment in the Nash case on grounds essentially the same as those advanced by the Director here, including alleged failure of plaintiff to have made reasonable efforts to ascertain the identity of the other motor vehicle, and of its owner and operator, and failure to prove that the motor vehicle involved “was in the possession of some person other than the owner or his agent without the consent of the owner and [that] the identity of the operator has not been established.” The motion was denied and the case held for trial. On a stipulation that the case be decided by the judge as though at a trial without a jury on stipulated records, transcripts and official reports, representing all the evidence in the case, Judge Eulop decided the case in the Law Division in favor of plaintiff.

In the course of his opinion the judge said:

“There is no requirement that the plaintiff institute an action against any person against whom it does not appear reasonably likely that liability may be established. The determination of the reasonable likelihood of success must necessarily be made in the first instance by the plaintiff, usually on the advice of his attorney.” (76

And further,

N. J. Super., at p. 175)
“As already indicated, plaintiff and his attorney must in all cases under this statute form a judgment as to the course to be pursued. But the reasonableness and good faith of that judgment is not left to their final determination. They must justify it in the suit to recover from the Fund. In that suit, as here, the court, with or without a jury, must determine whether or not plaintiff has brought himself within the terms of the act.
Thus, if it now appeared that plaintiff could reasonably have been expected, to establish that Iamurri was the tort-feasor, plaintiff could not recover. But that determination is a factual determination of reasonableness. There is no arbitrary requirement of mechanical steps to be pursued.” (at p. 176; emphasis added)

Compare Selimo v. Hartshorn, 99 N. J. Super. 146, 153 (Law Div. 1968), where, in considering a similar problem in connection with the plaintiff’s satisfaction of the conditions set forth in N. J. S. A. 39 :6-70, 71 for securing an order for payment out of the Eund of an unsatisfied judgment, the court said: “* * * [I]f plaintiff reasonably had a cause of action against another tortfeasor in a prima facie sense, he did not comply with the prerequisite demanding exhaustion of available remedies.”

We are in essential agreement with the reasoning set forth in Nash v. Iamurri, supra, quoted above. Accordingly, the ultimate issue in the present case (aside from those as to negligence of the driver, contributory negligence .of plaintiffs, damages, etc., not involved in this appeal) is whether plaintiffs could reasonably expect to recover a judgment against Saxton on the basis of facts which a bom fide and reasonably thorough investigation would reveal, showing that either Sax-ton or his agent was driving the vehicle at the time of the accident rather than an unidentifiable other person without his permission. If so, an action should have been brought against Saxton alone and pursued to its unsuccessful or fruitless termination before recourse was had to proceedings against the Director. Per contra, if no reasonable prospect of recovery against Saxton appeared on such an investigation.

We turn to the question whether the determination adverse to plaintiffs should have been made in this case on the motion in the trial court. We are clear that notwithstanding N. J. S. A. 39:6-78 states that the court must be satisfied “upon the hearing of the action” that plaintiff has established each of the six prerequisites, (a) to (f), inclusive, set forth in the section, for entry of judgment against the Director, a motion for summary judgment may be brought in a proper case by the Director prior to hearing of the action. See Tinsman v. Parsekian and McGainey v. Cable, both supra.

When, however, the statutory requirement challenged on the motion as not established is (e) and the issue is whether plaintiff had reasonable grounds to pursue an action against a known owner of a known vehicle, as against the assertion that the actual operator was unknown and in possession of the vehicle without the permission of the owner, the court should be at pains to be sure that it has before it all the facts concerning the accident available at the time and all pertinent information concerning plaintiff’s investigation and opportunities for investigation of the facts. Consonant with the general rule as to the substantial burden resting on a party moving for summary judgment, R. R. 4:58-3, the burden is on the moving party to establish affirmatively and palpably that no fair conclusion is derivable from the facts other than that the plaintiff had reasonable grounds to pursue an action against the known owner.

We are satisfied that the requisite affirmative showing was not made by defendant on the motion below and that the motion should have been denied. We think the issue should be reserved for the hearing of the action, as contemplated by the statute in the generality of cases. At that time the burden of demonstrating satisfaction of condition (e) will fall to plaintiffs, and the issue will, in accordance with the specific command of the statute, be decided by the trial judge, whether or not there is a jury to determine the issues of tort liability. That course is the generally preferable one in such a case as this, as it is apt to eliminate duplication of proofs as to tort liability at the hearing and on the motion.

While there may well have been unanswered questions in the trial court’s mind as to the issue of Saxton’s potential liability and as to what might have been revealed by a more thorough investigation of first-hand sources of information than plaintiffs have apparently made thus far — questions to which plaintiffs will have to provide satisfactory answers at the hearing of the action — we are satisfied that defendant’s showing on the present motion was not sufficiently determinative of noncompliance with the statute by plaintiffs as to have met defendant’s burden and to have warranted summary dismissal of the action.

Reversed; no costs on this appeal.


text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. FRANK SMITH, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued April 1, 1968 —
    Decided May 13, 1968.

      Before Judges Conford, Collester and Labrecque.

      Mr. Claude J. Minter, Assistant Deputy Public Defender, argued the cause for appellant (Mr. Peler Murray, Public Defender, attorney).

      Mr. Matthew J. Scola, Assistant Prosecutor, argued the cause for respondent (Mr. Joseph P. Lordi, Essex County Prosecutor, attorney; Mr. Lawrence 8. Schwartz, Assistant Prosecutor, of counsel and on the brief).
   The opinion of the court was delivered by

Conford, S. J. A. D.

Only one substantial issue is raised in this appeal by defendant from a conviction of entering with intent to steal, larceny, and receiving a stolen automobile.

Defendant was apprehended by the Newark police as. one of a pair of suspects seen in circumstances suggestive of their guilt of theft Of television sets from apartments in a housing project. We need not go into the evidence. Defendant asserts innocence, having testified he was at the area of commission of the crime only to visit a friend who was not at home.

The ground of appeal mentioned above is that defendant was unduly restricted by the trial judge in attempting to show bias against him on the part of a Newark police detective who was a principal witness for the State. On a number of occasions, both when Detective Grill was testifying as a state witness and prior to the commencement of and during the presentation of the defense case, defendant sought leave of the court, out of the presence of the jury, to pursue cross-examination in relation to, and offer certain proofs concerning a physical attack upon him by Grill while he was in that detective’s custody the day of the arrest. The transcript of testimony of the trial apparently does not include portions of the proceedings wherein defendant’s intentions to pursue the stated course were preliminarily discussed between counsel and the trial court. Almost all the rulings complained of by defendant were on proffers of proof out of the presence of the jury rather than on objections by the State to questions put to witnesses.

It was defendant’s contention that while he was being transported from the 4th precinct to police headquarters in Newark the day of his arrest by Detectives Grill and Rebar, he was placed in the back seat of the car in the company of Grill, with his hands handcuffed behind him, while Re-bar drove; that the car was raised on a lubrication lift in a gas station owned by Grill’s relatives, while Rebar remained on the ground; that Grill thereupon struck and beat him while attempting to extract from him the name of defendant’s alleged companion in the crime, not yet apprehended; that the attack was so severe as to fracture defendant’s cheekbone and cause him to be hospitalized for the next 21 days at Martland Medical Center, and that in consequence of this, defendant complained to the Department of Justice, resulting in an investigation of the matter by the Civil Lights Division of the Department.

The trial court refused to allow any cross-examination of Grill by defendant as to any of the foregoing, indicating it would allow defendant, but only on his own case, to testify to the alleged assault, but would not permit any proof at any time as to any of the other matters mentioned above corroborative thereof. Consistent therewith, defendant was not permitted on his own case to adduce the Martland Hospital records, the testimony of a physician who had treated him for his injuries at the hospital, or the records of the Department of Justice showing that Grill had been questioned in its investigation of defendant’s complaint, all of which defendant had subpoenaed.

Confining himself to the restrictions specified in the court’s guidelines, defendant testified, in the course of his defense, that Grill assaulted him at the gas station and fractured his cheekbone putting him in the hospital for 21 days. Grill denied the assault on redirect examination, and Lebar corroborated him.

We are satisfied that the limitations imposed by the court on defendant’s attempted demonstration of Grill’s bias toward him constituted prejudicial error.

It is elementary that a party may show bias, including hostility, of an adverse witness. State v. Pontery, 19 N. J. 457, 472 (1955); State v. Maxwell, 50 N. J. Super. 298, 307 (App. Div. 1958); and see State v. Taylor, 38 N. J. Super. 6, 25 (App. Div. 1955). Cross-examination of an adverse witness to develop the facts of bias is an important right of a party, McCormick on Evidence (1954), § 40, p. 85; and where the witness on the cross-examination denies the facts asserted to demonstrate bias the party may establish such facts by extrinsic evidence, id., at pp. 85-86; State v. Salimone, 19 N. J. Super. 600, 607-610 (App. Div. 1952), certification denied 10 N. J. 316 (1952).

The totality of the circumstances mentioned above,beginning with the alleged assault on defendant by the witness Grill and through defendant’s complaint against him therefor to the Department of Justice, constituted relevant evidence tending to show bias by the witness against the defendant; and the basic facts pertaining thereto, without, undue elaboration, should have been allowed in evidence, first by cross-examination of Grill, and then, to the extent made necessary by any denial or qualification by the witness, by extrinsic proofs on defendant’s case.

While the trial court on such an undertaking by a party has the discretion to determine how far the details may be allowed to be brought out, at least the essential facts demonstrating the possibility of the bias must be allowed in. McCormick, op. cit., 85-86. In this case, the fact of defendant’s complaint against Grill to the Department of Justice tends to show Grill’s bias in and of itself, apart from any tendency thereof to corroborate the assertion of assault. Grill could reasonably be expected to nurture resentment against one who was prosecuting such a complaint against him. See State v. Taylor, supra.

The State contends there was no prejudice arising from the court’s rulings since defendant was allowed to tell the jury that he was assaulted and hospitalized by Grill. But this overlooks the consideration that after the ensuing flat denial by the detectives defendant may well have been disbelieved by the jury, particularly in the light of his admitted prior convictions of crime and the judge’s instructions to the jury relative thereto. Defendant sorely needed the corrobora-. tion of his testimony as to the assault which would have been afforded by the other evidentiary material referred to above. ■ There was manifest prejudice in the total exclusion thereof.

We fail to find prejudice in defendant’s assignments of error concerning proof of the ownership and identity of the. motor vehicle in respect of which defendant was convicted-, of receiving stolen property.

Reversed.


author: Artaserse, A. J. S. C.

text:
    PAUL CUPROWSKI, MARY E. VERDIRAMO, JAMES J. MACK, FRANK S. MONACO, AND JEROME LAZARUS, PLAINTIFFS, v. CITY OF JERSEY CITY, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, AND WILLIAM P. BLACK, CITY CLERK OF THE CITY OF JERSEY CITY, DEFENDANTS.
    Superior Court of New Jersey Law Division
    Decided April 30, 1968.

      Mr. Gerold Kanengiser for plaintiffs (.Messrs. Gordon & Kanengiser, attorneys).

      Mr. James F. Ryan, Corporation Counsel, for the defendants.
   Artaserse, A. J. S. C.

On April 5, 1968 plaintiffs herein presented to the city clerk a petition allegedly signed by 35,805 residents of Jersey City protesting the city’s budget for the fiscal year 1968 and requesting that the said budget be the subject of a referendum to appear on the ballot at an election held pursuant to N. J. S. A. 40:69A-185. The city clerk having refused to accept the petition, plaintiffs have instituted this action to compel the clerk to do so, it being the initial procedural step necessary for a referendum to repeal the budget. Defendants have moved for a dismissal of the complaint alleging that it does not state a legal cause of action.

It is plaintiffs’ contention that the city’s action in introducing, approving and adopting its budget for the current fiscal year constituted the adoption of an ordinance by the city and is therefore within the purview of N. J. S. A. 40:69A-185, which provides as follows:

“The voters shall also have the power of referendum which is the power to approve or reject at the polls any ordinance submitted by the council to the voters or any ordinance passed by the council, against which a referendum petition has been filed as herein provided. No ordinance passed by the municipal council, except when otherwise required by general law or permitted by the provisions of section 17-32(b) of this act, shall take effect before twenty days from the time of its final passage and its approval by the mayor where such approval is required. If within twenty days after such final passage and approval of such ordinance a petition protesting against the passage of such ordinance shall be filed with the municipal clerk and if the petition shall be signed in the case of municipalities * * * of more than 70,000 inhabitants, by fifteen per centum (15%) of the registered voters of the municipality, * * * the ordinance shall he suspended from taking effect until proceedings are had as herein provided.”

N. J. S. A. 40:48-l provides in part that:

“The governing body of every municipality may make, amend, repeal and enforce ordinances to:
Finances and property. 1. Manage, regulate and control the finances and property, real and personal, of the municipality; * * *”

N. J. 8. A. 40:69A-181(b) provides as follows:

“No ordinance other than the local budget ordinance shall take effect less than twenty days after its final passage * * *.” (Emphasis added)

Plaintiffs, in effect, contend that a municipality controls and regulates its finances by means of a budget and because of the provisions of N. J. S. A. 40 :48-1 and N. J. S. A. 40 :69A-181 (b), supra, a budget must be an ordinance within the provisions of N. J. S. A. 40 :69A-185, supra, and therefore subject to referendum.

The city, on the other hand, contends that a budget is not an ordinance but rather is adopted by resolution and therefore is not within the ambit of N. J. S. A. 40:69A-185, supra, which only pertains to ordinances. In support of its position the city points to N. J. S. A. 40A :4-4 which is part of the Local Budget Law and provides as follows:

“All budgets shall be introduced, approved, amended and adopted by resolution passed by not less than a majority of the full membership of the governing body.” (Emphasis added)

The city also contends that even if the budget is an ordinance it is not the type of ordinance that the Legislature intended should be subject to initiative and referendum.

It is well settled that statutory language will be interpreted and applied with an eye toward effectuating the intent of the Legislature. To this end courts will try to harmonize statutes dealing with the same general subject. Loboda v. Clark Tp., 40 N. J. 424 (1963). It is also fundamental that the Legislature is presumed to be familiar with its own enactments and with judicial declarations relating to them. State v. Federanko, 26 N. J. 119 (1958). Thus, under the rules of statutory construction, statutes in pari materia are not to be construed as isolated fragments of the law, but rather as a single and complete statutory arrangement. Such statutes should be considered as if they constituted one act, so that sections of one act may be considered as though they were parts of the other act, as far as this can be reasonably done.

The words “ordinance” and “resolution” are defined in N. J. S. A. 40:49-1 as follows:

“The term ‘ordinance’ * * * means and includes any act or regulation of the governing body * * * required to be reduced to writing and read at more than one meeting thereof and published.
The term ‘resolution’ * * * means and includes any act or regulation of the governing body * * * required to be reduced to writing, but which map be finally passed at the meeting at which it is introduced.” (Emphasis added)

Generally, it has been held that a governing body can only act by way of ordinances and resolutions. Woodhull v. Manahan, 85 N. J. Super. 157 (App. Div. 1964); Irvington v. Ollemar, 128 N. J. Eq. 402 (Ch. 1940) ; and that an action ■of the governing body which does not rise to the dignity of an ■ordinance is a resolution. Chasis v. Tumulty, 8 N. J. 147 (1951). Also it has been held that as between two conflicting statutes the latter in time governs. Woodhull v. Manahan, supra.

N. J. S. A. 40:186-1, enacted in 1901, concerning budgets in certain cities provides as follows:

“It shall not hereafter be necessary in any city of this state to .submit to election or approval by the voters the appropriations or .amounts of money to be raised in each year for the lawful purposes •of such city; but said appropriation shall be made by the common ■council, board of aldermen or other governing body, or by the board having control of the finances of such city, by resolution or ordinance, in which the amounts and objects shall be particularly set forth.” (Emphasis added)

This statute allows a city to pass its budget by either ordinance or resolution. See also Fox v. Clark, 72 N. J. L. 100 (Sup. Ct. 1904).

The Legislature enacted the Local Budget Law in 1936. N. J. S. A. 40:2-1 et seq. This law laid down the requirements and procedures to be followed by a municipality when approving and adopting its budget. A reading of this 1936 law (chapter 211, section 106) along with its 1939 and 1947 amendments (see N. J. S. A. 40:2-8) reveals that although the word “resolution” was used, it was not a mandatory procedure. Therefore, cities were still permitted to adopt their budget by ordinance provided that the city in doing so adhered to the time requirements for publishing and for public hearings as contained in the budget law. N. J. S. A. 40 :2-7.

When the Legislature passed the Faulkner Act in 1950 it was aware of the fact that prior thereto local budgets could be adopted by ordinance as well as by resolution, but by the provisions of N. J. S. A. 40:694.-181(b) and N. J. S. A. 40:69A-185 it was evident that the Legislature intended that local budget ordinances be exempt from its referendum provisions.

The Legislature provided that the local budget ordinance take effect immediately and not be held in abeyance for 20 days. N. J. S. A. 40:694-181(b). N. J. S. A. 40:69 A-185 provides that all ordinances except one permitted by N. J. S. A. 40 ¡694-181 (b) (the local budget ordinance) be subject to attack by referendum during the 20-day waiting period. It therefore must be assumed that the Legislature excluded the budget from recall because it becomes effective immediately upon adoption. Swain v. Fritchman, etc, 21 Idaho 783, 125 P. 319, 325 (Idaho Sup. Ct. 1912).

Plaintiffs further contended that certain ordinances adopted pursuant to N. J. S. A. 40:46-26 and N. J. S. A. 40:49-27 provide for only a 10-day waiting period instead of 20 days before the said ordinances become effective and that therefore the claim of defendants that the referendum provision did not apply to the resolution adopting the budget because it did not have a 20-day waiting period was not sound. However, a reading of the said sections of the Revised Statutes reveals that each of them has a built-in, special referendum provision. Reference to these statutes gives credence to the contention of defendants that the Legislature never intended a municipal budget to be subject to referendum.

The exemptions of local budgets from attack by referendum was emphasized when the Legislature enacted the Local Budget Law in 1960, which provided for the first time in N. J. S. A. 40A :4-4 that thereafter local budgets shall be approved and adopted by resolution. N. J. S. A. 40A :4-4 provides as follows:

“All budgets shall be introduced, approved, amended and adopted by resolution passed by not less than a majority of the full membership of the governing body.” (Emphasis added)

In 1964 the Legislature, in furtherance of the procedural policy enunciated in N. J. 8. A. 40A :4-4, supra, amended section 40A :4-10 so that its first paragraph now reads in part as follows:

“* * * Einal adoption shall be by resolution adopted by a majority of the full membership of the governing body, * * (Emphasis added)

These enactments concerning the Local Budget Law without doubt show that the Legislature intended that local budgets be approved and adopted by resolution and not by ordinance.

Municipal corporations have both legislative and administrative powers. These powers are vested in the governing body and are exercised through resolution or ordinance. The referendum provisions have been held applicable to all ordinances and resolutions which constitute an exercise of the legislative power. An act purely executive or administrative in character is not an exercise of legislative power and therefore is not subject to recall by referendum. This holds true regardless of whether the act is nominally designated a resolution or an ordinance. Denman v. Quin, 116 S. W. 2d 783 (Tex. Civ. App. 1938); Keigley v. Bench, City Recorder, 97 Utah, 69, 89 P. 2d 480, 122 A. L. R. 756 (Utah, Sup. Ct. 1939); 122 A. L. R. 769 (1939); Carson v. Oxenhandler, 334 S. W. 2d 394 (Mo. Ct. App. 1960). Therefore, it would appear that in stating that all ordinances should be subject to the referendum provisions of N. J. S. A. 40 :69A-185 the Legislature was referring to ordinances of a legislative nature and did not intend to include resolutions or ordinances of an executive or administrative nature. Tillamook Peoples’ Utility Dist. v. Coates, County Clerk, 174 Or. 476, 149 P. 2d 558 (Ore. Sup. Ct. 1944).

In order to ascertain the administrative or legislative nature of the ordinance or resolution the courts have established several tests. Matters which are of a permanent or general character are considered to be legislative while those which are temporary in operation and effect are deemed administrative. Acts which are classified as administrative are those which result from governmental powers properly assigned to the executive department and necessary to carry out legislative policies and purposes already declared either by the legislative municipal body, or devolved upon it by the law of the state. Monahan v. Funk, City Auditors, 137 Or. 580, 3 P. 2d 778, 779 (Ore. Sup. Ct. 1931); 62 C. J. S. Municipal Corporations § 454, p. 873.

In People v. City of Centralia, 1 Ill. App. 2d 228, 117 N. E. 2d 410 (Ill. App. Ct., 1954), the court, in discussing what was legislative and what was administrative, said:

“* * * It has frequently been observed in testing the legislative character of an Act that an ordinance which is legislative in character initiates, or enacts a permanent law, or lays down a rule of conduct, or course of policy, for the guidance of citizens or their officers, and it has been noted that an ordinance which simply puts into execution previously enacted laws is administrative or executive in character. The Illinois Supreme Court, in People ex rel. Board of Education, etc. v. Board of Education, 380 Ill. 311, 43 N. E. 2d 1012, points out that while it is at times difficult to draw the distinction as to whether the exercise of a power is administrative or legislative, the true distinction is between a delegation of power to make the law which involves a discretion as to what the law shall be, and conferring an authority or discretion as to its execution to be exercised under and pursuant to the law. Municipal authorities who exercise discretion and judgment in performing their duties, but who do not, while executing the law under which they act, make or declare any law or rule of conduct, or construe or apply any law, are not exercising legislative or judicial powers, but are acting in a ministerial or administrative capacity. Mitchell v. Lowden, 288 Ill. 327, 341, 123 N. E. 566. (117 N. E. 2d, at p. 413)

McQuillin, in his treatise on municipal corporations, pointed out the distinction between administrative and legislative action:

“In reference to what constitutes legislative and what administrative action in connection with restriction of the power of initiative or referendum to legislative matters it has been said that action relating to subjects of permanent and general character are usually regarded as legislative, and those providing for subjects of temporary and special character are regarded as administrative. A construction of a provision that ‘any proposed ordinance’ may be submitted to the commission by a petition signed by a specified number of Qualified electors has been construed to mean that any legislative measure of permanent operation can be so submitted, * * «. Obviously, details which are essentially of a fluctuating sort, due to economic or other conditions, cannot be set up in and by an ordinance to be submitted to vote of the people under initiative and referendum statutes, which restricts submission to people to measures of permanent operation.” 5 McQuillin, Municipal Corporations (3d ed.), § 16.55, p. 255.

No proponent of initiative and referendum would maintain that all municipal activity should be subject to popular election. If governments are to function there must be some area in which representative action will be final. In many situations it is difficult to determine how far the limitations should go. The courts must draw the line in these situations and in doing so must balance two interests — ■ the protection of city government from harassment as against the benefits of direct legislation by the people. 3 Stanford L. R. 497 (1951).

An essential function of a governing body is the management of the financial affairs of the municipal government, which involves the fixing of a budget to be used as the basis for determining the amount and rate of taxes to be levied. See Geiger v. Board of Supervisors of Butte County, 48 Cal. 2d 832, 313 P. 2d 545, 549 (Cal. Sup. Ct. 1957).

It is fundamental that to permit a referendum which might annul or delay executive action would destroy the efficiency necessary for the successful administration of the affairs of the municipality. To say that administrative determinations are subject to referendum could defeat the very purpose of local government. To give a small group of the electorate the right to demand a vote of the people upon every administrative act of the governing body would place municipal governments in a straight jacket and make it impossible for the city’s officers to carry out the public’s business. See Denman v. Quin, supra.

The mandatory provisions of N. J. S. A. 40A. :4-1 et seq. (Local Budget Law) relative to itemizing and estimating appropriations, along with the requirement of holding a public hearing by which the public can examine and voice objections, all emphasize the paramount importance which the Legislature attributed to the budget.

A survey of the cases dealing with the question of whether a city budget is a legislative or administrative function shows that such action has been uniformly held to be administrative. Denman v. Quin, supra; State ex rel. Keefe v. St. Petersburg, 106 Fla. 742, 144, So. 313, 145 So. 175 (Fla. Sup. Ct.. 1933) ; Keigley v. Bench, City Recorder, supra; 122 A. L. R. 769 (1939).

In State ex rel. Keefe v. St. Petersburg, supra, it was held that the referendum provisions were not intended to apply to appropriation ordinances, whether considered legislative or administrative in character, for the reason that to hold otherwise would make operations under the system impossible and because matters of financial management were peculiarly within the special knowledge of responsible municipal officials. The court said:

“It would be unreasonable, indeed, to suppose that the Legislature would require the responsible officials of the city to proceed with care and deliberation to prepare a budget in keeping with the financial needs of the city, and then subject the resultant financial arrangement evolved therefrom to a popular referendum election, in which few, if any, of the special factors, which have been studied by competent officials in connection with preparing such an arrangement, would be given that thorough investigation and consideration necessary to make any form of budgetary plan operative. A budget system means sound fiscal management of municipal affairs, by requiring all expenditures, through appropriations, to be predicated on a proper understanding and appreciation of all the pertinent facts which may be ascertained with reference to the advisability of making the same.
* * * matters of financial management, which, while legislative in their character, are such as are impliedly, if not expressly, required by the charter to be dealt with by the city’s responsible officers on the basis of peculiar and special knowledge possessed by them concerning the possible resources of the city, and the necessities required to be met through the exercise of the delegated power of taxation.” (145 So., at p. 176)

Further,

“* * * Qur opinion is that initiative and referendum provisions of the city charter of St. Petersburg were not intended by the legislature to apply to, and do not apply to appropriation ordinances provided for, and required by law to be adopted at stated intervals, for the purpose of making effective the statutory budget system of finances prescribed by the city’s fundamental law.” (At p. 175)

The court iu Denman v. Quin, supra, held that:

“* * * [The] ordinance, which the plaintiffs would have subjected to a referendum, and by that process passed upon by some 30,000 or more voters, consists of seventy-five paragraphs, each covering an item to be taken into consideration, in connection with all the others, in determining the rate of the tax to be levied, in order to raise the amount, previously ascertained, to support the government. Nearly every one of those items is an integral part of a whole complicated structure, every part of which must be consistent with and weighed against every other part.” (116 S. W. 2d at p. 787)

The court also stated:

“* * * It seems to be perfectly obvious, too, that ordinances which must rest upon minute investigation of facts and figures, or application of experts, skilled, or technical knowledge, or upon audits, or upon close and careful study or ascertainment or adjustment of masses of facts and figures, such as the elements entering into matters of rate making, cannot be efficiently initiated or passed upon by the publie, en masse, however intelligent and patriotic they may be.” (At p. 786)

See also Hawkins v. Birmingham, 239 Ala. 185, 194 So. 533 (Ala. Sup. Ct. 1940).

When the resolution here ia question is tested by the rules stated above, it becomes obvious that it is not subject to a referendum vote by the people. Moreover, a city’s budget can only be fixed at a certain amount for a comparatively short length of time; hence, the resolution in question does not connote permanency and the conclusion is evident that a city’s budget is an administrative rather than a legislative act.

Although it is a general rule that referendum provisions are to be liberally construed and that it was the intent of the Faulkner Act to confer the greatest possible power of local self-government and to encourage citizen interest and participation, Meridian Development Co. v. Edison Tp., 91 N. J. Super. 310 (Law Div. 1966); City of Newark v. Dept. of Civil Service, 68 N. J. Super. 416 (App. Div. 1961), it was not intended to be an unlimited and unqualified right. 5 McQuillin, op cit., § 16.54, p. 251.

The consensus of judicial opinions throughout the land is that the preparation, approval and adoption of a municipal budget is administrative in character. To permit the electorate to veto a city budget affecting the fiscal affairs of the city could cause a chaotic situation. This is so even though under certain circumstances the city could operate under the budget of the preceding year with suitable adjustments, N. J. S. A. 40A :4-17, in the administration of its affairs. The referendum statute never intended or contemplated such a result.

It is undisputed that where the Legislature speaks in clear, positive and unambiguous language it can provide for initiative and referendum in budgetary matters. Spencer v. Alhambra, 44 Cal. App. 2d 75, 111 P. 2d 910 (Cal. D. Ct. App. 1941). But in the absence of such clear, positive and unambiguous mandate by the Legislature, the majority view is that appropriations and budgetary ordinances or resolutions are not subject to initiative and referendum. Exhaustive research fails to reveal any case where a similar attack on a budget was ever made in Yew Jersey, although there are eases attacking line items for failure to conform to the statute. Therefore, this court concludes that the Jersey City budget is not a proper subject for a referendum.

Under the circumstances herein the municipal clerk of Jersey City was justified in refusing to file the petition and to proceed with a referendum with regard to the budget and the resolution by which it was adopted by the governing body on March 19, 1968. Wyatt v. Clark, Mayor, 299 P. 2d 799, 802 (Okl. Sup. Ct. 1956).

Judgment for defendants.