author: Moore, J. S. C.

text:
    REGINA H. MEREDITH AND CLIFFORD W. SNEDEKER, PLAINTIFFS, v. MERCER COUNTY BOARD OF CHOSEN FREEHOLDERS, DEFENDANTS. GEORGE F. KUGLER, JR. ATTORNEY GENERAL OF THE STATE OF NEW JERSEY, AMICUS CURIAE.

    Superior Court of New Jersey Law Division
    Argued September 15, 1970
    Decided October 1, 1970.

      Mr. Edward B. Meredith argued the cause for plaintiffs (Meredith, Meredith & Chase, attorneys).

      Mr. Harvey L. Stern, County Counsel, argued the cause for defendants.

      Mr. Dennis J. Quinn, Deputy Attorney General, argued the cause for the amicus curiae (Mr. George F. Kugler, Jr., Attorney General of the State of New Jersey).
   Moore, J. S. C.

In this matter the Court is asked to interpret and determine the intent and meaning of N. J. S. A. 19 :32-26 as it applies to the appointment of a person to fill a vacancy for an unexpired term in the office of Superintendent fo Elections for Mercer County, a second class county.

Under the authority of N. J. S. A. 19:32-26 Mercer County created the office of Superintendent of Elections on April 16, 1968. The resolution creating such office was filed in the Secretary of State’s office April 22, 1968 and the resolution took effect on July 4, 1968 under the above statute. The Governor of the State of New Jersey made no appointment to the office within 30 days following the effective date of the resolution, and subsequently on August 6, 1968 the Board of Freeholders of the County of Mercer adopted a resolution wherein they appointed Samuel A. Naples to the office of Superintendent of Elections for a term of five years from said date, the five-year term being from August 7, 1968 to August 7, 1973. The resolution of appointment was filed with the Secretary of State’s office August 8, 1968. Mr. Naples resigned from the office and submitted his resignation to the Secretary of State effective September 1, 1970.

Subsequent to the resignation of Mr. Naples, the Board of Freeholders provided on their agenda for their regular meeting of September 1, 1970 to take up the matter of the appointment to fill the vacancy created by Mr. Naples’ resignation. Prior to the commencement of the Freeholder’s meeting on September 1, 1970, an order to show cause was issued by this Court restraining the Board of Freeholders from acting on said appointment. The said restraint remains in effect. Also subsequent to Mr. Naples’ resignation the Governor of the State of New Jersey submitted the name of an appointee to the New Jersey State Senate for its advice and consent.

A hearing on the order to show cause was held on September 4, 1970 at which time the Attorney General of the State of New Jersey was granted the right to appear in this matter as amicus curiae. The argument on the order to show cause was adjourned from September 4, 1970 and fully heard with all parties present on September 15, 1970.

N. J. S. A. 19:33-26 was first adopted under the L. 1947, c. 167 and the provisions for appointment under the statute at that time provided as follows:

The office so established shall be filled by some suitable person who shall be nominated by the Governor with the advice and consent of the Senate for a term of five years from the date of Ms appointment and until his successor is appointed and shall have qualified.

As to vacancies the statute at that time provided:

Vacancies shall be filled, for the unexpired terms only, in the same manner as original appointments are made.

The said section of Title 19 was first amended by L. 1949 c. 188. The amendment did not affect the above quoted sections of the law involving appointment or vacancies. The amendment limited the effect of the statute as to certain specified second class counties.

In 1953 there were a series of three amendments adopted and signed into law affecting this section of Title 19. The first 1953 amendment was adopted on April 15, 1953 (L. 1953 c. 84). The amendment provided authorization for certain fifth class counties to appoint a Superintendent of Elections but did not change the above quoted sections of the law. On July 20, 1953 (L. 1953 c. 246) an amendment was adopted which again made no change in the above quoted sections but provided that the population classification of the various counties would be governed by the 1950 census.

The third and last amendment made during the year 1953 was adopted on December 30, 1953 (L. 1953 c. 444) during a special session of the Legislature. There were major changes to the above quoted sections of the statute and those amendments as adopted read as follows:

The office so established shall be filled by some suitable person who shall be nominated by the Governor with the advice and consent of the Senate for a term of 5 years from the date of his appointment and until his successor is appointed and shall have qualified. In the event that no such appointment to such office is made within 30 days following the taking effect of the resolution, heretofore or hereafter adopted, of the board of chosen freeholders of the county, as herein provided, then the said board of chosen freeholders of the county shall appoint some suitable person to fill such office for a term of 5 years from the date of appointment and until the successor of such person is in the same manner appointed and shall have qualified. The board shall file notice of such appointment in the office of the Secretary of State.
Any vacancy occurring in such office of superintendent of elections shall be filled in the same maimer as the original appointment to such office was made, but for the unexpired term only.

This section of Title 19 was last amended by L. 1965 c. 153; however, the amendment only changed the portion of the statute dealing with the salary to he paid the Superintendent of Elections in the various classes of counties. It made no change to those sections quoted above of the amendments adopted on December 30, 1953.

In their arguments made to the Court the parties have presented three separate interpretations of this statute and the appointing power contained therein.

The plaintiffs interpret the meaning of the statute as follows, as it is applicable to the situation in Mercer County. Considering the statute as amended, it indicates that the Governor would, following the occurrence of a vacancy, have a period of 30 days in which to act upon the appointment of a person to fill said vacancy, and that if the Governor does not act within those 30 days then the Board of Chosen Freeholders would have the opportunity to appoint someone to fill the vacancy.

The defendant, Mercer County Board of Chosen Freeholders, interprets the statute as follows: At the time that Mercer County adopted the resolntion authorizing the creation of the office of Superintendent, the then Governor of the State of New Jersey failed to or relinquished his right under the statute to make an appointment within 30 days following the effective date of the resolution. The Board then made the appointment to the office. Dnder such a circumstance the defendant claims that the Governor of the State of New Jersey, regardless of who he may be, is forever barred from making an appointment for the office of Superintendent of Elections of Mercer County and that the Ereeholders are the parties authorized to make such appointment forever in the future. The defendant bases its interpretation of the ordinance on two specific phrases in the statute: the first phrase contained in the third paragraph of the statute which states “The said board of chosen freeholders of the county shall appoint some suitable person to fill such office for a term of five years from the date of the appointment and until the successor of such person is in the same manner appointed and shall have qualified." (Emphasis added). The second phrase on which they base their interpretation is contained in the last paragraph of the. section —• “Any vacancy occurring in such office of superintendent of elections shall be filled in the same manner as the original appointment to such office was made, but for the unexpired term only.” (Emphasis added). The last paragraph above quoted is actually the section of the statute which is directly involved in this case, since any appointment to this office would be for the purpose of filling a vacancy and would be for the unexpired term only.

The Attorney General, appearing as amicus curiae in this matter, offers a third interpretation of the pertinent parts of the statute. The Attorney GeneraPs position is that the appointing power conferred upon the Board of Chosen Freeholders in any county establishing the office of Superintendent of Elections is limited and restricted to the first appointment made in accordance with the provision that if the Governor does not appoint within 30 days of the effective date of the resolution then the Board of Freeholders have the x-ight to appoint. The Attorney General makes the point that the appointing power of the Board of Chosen Freeholders is limited to the first appointment by reason of the phrase “In the event that no such appointment to such office is made within 30 days following the taking effect of the resolution, heretofore or hereafter adopted, the board of chosen freeholders of the county * * *” In other words, their appointing authority is limited to that period of time after 30 days have elapsed from the taking effect of the resolution, and that any subsequent appointments to a specified term of five years or any appointment to fill any vacancy occurring in such office would be made by the Governor in accordance with the first sentence of the third paragraph which states “the office so established shall be filled by some suitable person who shall be nominated by the Governor with the advice and consent of the Senate * * *.” (Emphasis added). The Attorney General makes the further argument that the language of the statute is such that if the Governor of the State of New Jersey did not exercise his power of appointment on the first appointment there cannot be read into the statute an intent by the Legislature to forever bar all future Governors from making any appointment in that specific county for the office of Superintendent of Elections.

The first basic question for the Court to answer in its interpretation of this statute is the question as to whether or not the office of Superintendent of Elections in second class counties is a state office or a county office. The defendant would not concede that said office in second class counties was in fact a state office. This question was specifically answered with reference to first class counties in the case of Keenan v. Essex County Bd. of Chosen Freeholders, 101 N. J. Super. 495 (Law Div. 3968), aff'd, 106 N. J. Super. 312 (App. Div. 1969). The lower court in the above case cited McDonald v. Bd. of Chosen Freeholders Hudson County, 99 N. J. L. 393 (E. & A. 1924) as articulating the philosophy as to why the office of Superintendent of Elections in first class counties should be considered a state office and this reasoning and disposition was adopted by the appellate court in its decision. In quoting from the McDonald case the lower court said:

‘The answer to this contention is contained in the opinion of the Supreme Court in the original litigation between these parties relating to this subject-matter. It is there pointed out that the purpose of the statute is to provide for honest elections in counties of the first class; that it is a matter of the gravest importanoe to the people of the whole state that elections should he fairly and honestly conducted in every county of the state; that it is a matter of common knowledge that in sparsely settled districts it is not necessary to provide expensive machinery in order to procure an honest expression of the popular will at the polls; that there is no need in such districts of that vigilance, supervision or regulation which is required in densely populated municipalities; that, consequently, where a necessity arises to add to the machinery of government additional machinery in certain localities for the purpose of attaining purity in general elections, it is within the legislative power to supply such machinery without burdening other localities, which are not in need of it, with the expense of such machinery; and that the Legislature was the sole judge whether the necessity existed in Essex and Hudson counties by reason of their crowded districts and large population; and that its decision in that regard is not open to question. 98 N. J. L. 386. The purpose of the statute, as is indicated by the above statement, was to protect our citizens, no matter in what part of the state they might live, from being deprived of or injured in the enjoyment of their rights as voters by the corruption of the ballot bocc in Hudson or in Essecc County; and an act which undertakes to do this — that is, to provide for the purity of elections in the state by making it difficult to put into execution a scheme for the corruption of the ballot box in any part thereof, and so partially destroy the value of the franchise of every voter in the state — is an act passed for the benefit of the whole state, and not one which merely regulates the internal affairs of the counties in which the act is made operative.’ (at pp. 397, 398; emphasis supplied)

In support of the position that the office is a state office, the court’s indication in three cases is noted below, and specifically in the Keenan case, in addition to the powers and duties of the Superintendent of Elections set forth in the Law Division’s decision in this case, the Appellate Court noted two further considerations tending to support the conclusion that the office was a state office.

First, the superintendent of elections is empowered, by statute to obtain the use of State Police troopers on election day to aid him ‘in the enforcement of the election laws of this state.’ N. J. S. A. 53:2-1. Second, the status of the superintendent as a state officer has been recognized in Allan v. Durand, 137 N. J. L. 30, 33 (Sup. Ct. 1948) (the budgetary affairs of the superintendent are subject to the scrutiny of the State Auditor and the removal of the superintendent for malfeasance is within the executive power of the Governor), and MacPhail v. Board of Chosen Freeholders of Hudson Cty, 6 N. J. Super 613, 617-619 (Law Div. 1950) (although their salaries are paid by the county, employees of the superintendent are ‘state employees’). 106 N. J. Super., at 315.
It is equally obvious that the expenditures to which that responsibility attached were only those within the official’s ability to control. One superintendent and commissioner has been removed by the Governor for malfeasance in office in over expending the statutory limits. Allan v. Durand, 137 N. J. L. 30 (Sup. Ct. 1948).
This legislative plan, however, was not devised to set the employees of these offices in a class apart from other employees similarly situated. The offices were created and made largely free of county supervision for reasons related entirely to the conduct of the election process. See McDonald v. Board of Ghosen Freeholders, etc.,. 99 N. J. L. 393 (E. & A. 1924). MacPhail v. Board of Chosen Freeholders Hudson Cty., 6 N. J. Super. 613, at 621 (Law Div. 1950)

This Court cannot find any plausible reason as to why the philosophy of McDonald should not be applicable to all counties regardless of their classification, and under the circumstances I would find that the person holding the office of Superintendent of Elections in Mercer County is an officer of the State Government.

As is indicated above, there were three separate amendments to this statute in the year 1953 and the last amendment of that year (L. 1953, c. 444) was passed during a special session of the Legislature. It should also be noted that at this same time, which was December 30, 1953, the-then Governor, Alfred E. Driscoll, was completing his last term of office and he, as well as the Legislature, was completing his term and session respectively. The Governor’s term expired on January 19, 1954 and Governor Robert B. Meyner assumed the office of Governor on that date.

It is interesting to note that the only counties that qualified under this statute in accordance with the population requirements were the second class counties of Mercer, Passaic and Middlesex and the fifth class county of Monmouth. According to the records of the Secretary of State’s office, the-County of Middlesex has filed no resolution indicating that that county has established the office of Superintendent of Elections. The County of Monmouth, according to the Secretary of State’s office, established the office of Superintendent of Elections in April, 1953, which was before the adoption of the statute containing the authority for the board to appoint the Superintendent of Elections. As indicated above, the County of Mercer did not establish the-office until 1968. The records of the Secretary of State’s office regarding Passaic County indicate that there is a resolution on file as of the latter part of January, 1954 to the effect that the Board of Freeholders made an appointment to the office of Superintendent of Elections for that county for a term of five years commencing January 21, 1954. The resolution is dated January 20, 1954. No record of the resolution creating the office in Passaic County was made available to this Court and upon request, no copy of the resolution creating the office was supplied by the County of Passaic. The only resloution provided from either source was the resolution of appointment referred to above. It has also been noted by the Court that the statute change made by L. 1953, c. 444, approved December 30, 1953, was introduced in the Legislature by the representatives of Passaic County. Without in any way intending to rule on the question, the lack of a resolution creating the office in Passaic County and the failure of any such resolution being filed in the Secretary of State’s office, creates a serious question as to the validity of the office in that countjr, and also creates the question as to whether the Governor at the time of the appointment to the office in Passaic County was aware that the office had even been created. In his brief to this Court, the attorney for the defendant attached as Exhibit A an opinion of the Passaic County Counsel regarding the power of the Board to appoint. However, in view of the lack of information regarding the creation of that office in that county, the opinion carries little weight. The change in the law was made on December 30, 1953 at the instigation of representatives of Passaic County and there was an appointment to that office in Passaic County within 22 days after the approval of the amendment to that statute. This is completely contrary to the amendment, which provides:

The board of chosen freeholders shall file a certified copy of such resolution, attested by the director and clerk of the board, in the office of the Secretary of State within 10 days after the adoption of the resolution, and the resolution shall take effect at the expiration of 30 days after the next primary election for the general election, or the next general election, after the adoption of such resolution, whichever shall occur first. * * *'
In the event that no such appointment to such office is made within 30 days * * * then the said board of chosen freeholders in the county shall appoint * * *

It is from these facts apparent that the Legislature had some special reason for the adoption of these changes in the statute, or some special intent when they adopted the same; however, the Court has been unable to find any official reasons or intentions of the Legislature.

When the Court does not have available to it the reasons or intentions of the Legislature when adopting a specific piece of legislation, the Court must derive the intent of the Legislature from a view of the whole and of every part of the statute to make sense out of the legislation.

Since ascertainment of intent is necessarily a matter of reconstruction and has elements of fiction in it, a court’s realistic approach should be, as a learned contemporary scholar phrases it, to try ‘to make sense out of the legislation, so far as text and context may allow.’ Llewellyn, The Common Law Tradition: Deciding Appeals 529 (1960). Clifton v. Zweir 36 N. J. 309, 323 (1962).
It is an established rule in the exposition of statutes that the intention of the Legislature is to be derived from a view of the whole and of every part of the statute, taken and compared together. The real intention, when ascertained, will prevail over the literal sense of terms. When words are not explicit the intention is to be collected from the context and the occasion and the necessity of the law and from the mischief felt, and the remedy in view; and the intention is to be taken or presumed according to what is consonant to reason and good discretion. In re Merrill, 88 N. J. Eq. 261, 273. Lynch v. Long Branch, 111 N. J. L. 148 (Sup. Ct. 1933).

In attempting to make sense out of the legislation so far as the context may allow as stated in the above quote, the Court must reject the interpretations propounded by both the plaintiffs and the defendant and accept the interpretation propounded by the Attorney General since this latter interpretation would make sense out of the legislation and would be a more plausible and meaningful interpretation of the statute.

The Court in reaching its conclusion to adopt the interpretation of the Attorney General, also considered the opinion of the Supreme Court in Richmond v. Ligham, 22 N. J. 40 (1956):

When the constitutional delegates assembled during the summer of 1947 they were determined to create a living document embodying their high concepts of democratic government for themselves and oncoming generations. They wanted to provide for three truly strong though independent branches with adeguate checks and balances. And they sought to avoid pitfalls which resulted from many of the minutely detailed provisions in the State’s ancient Constitution by replacing them with general expressions of governmental principles which they believed to be well-grounded. One of these salutary principles is to be found in their prohibition of all appointments by the Legislature of executive, administrative and judicial officers; and if our courts are to keep faith with the delegates and the people of the State who overwhelmingly approved their efforts, they must be alert to this as well us the other constitutional interdictions and must be prepared to strike down subtle as well as patent departures, (at 58).

While this case is not on point, the ease did discuss the fact that the Legislature is not authorized under the Constitution to make direct appointment of executive and administrative officers by statutes approved by the Governor or passed by Legislature over the Governor’s veto, and the rationale of the case in that regard is pertinent to the matter of interpretation of this statute. Of course, it was pointed out that the Legislature does have the authority to authorize the appointment of administrative officers by specific individuals or officers of the state government, but in doing so the Legislature has always been very specific as to who has the appointing authority, such as N. J. S. A. 18A:6-34, State Board of Examiners is appointed by the Commissioner of Education; N. J. S. A. 18A:7-1, County Superintendent of Education is appointed by the Commissioner of Education; N. J. S. A. 39 :2-4, Deputy Director of Motor Vehicles is appointed by the Director; N. J. S. A. 39:3-3, Eegistration and Licensing Agents are appointed by the Director of Motor Vehicles; and N. J. S. A. 52:17A-6, Assistants and Deputies of the Attorney General are appointed by the Attorney General.

If the statute were to be interpreted as suggested by either the defendant or the plaintiffs, the Legislature would be providing for the appointment of a state office by someone other than the Governor in somewhat less than a specific manner, in fact, in a rather hazy and uncertain manner. Thus, an interpretation suggested by the plaintiffs and defendant would be contrary to the spirit of the philosophy set forth in the Richmond case. It would also appear to the Court that the Governor at the time these amendments were signed could not have possibly been aware, by reason of the wording in the statute, that by his inaction for a period of 30 days he would be relinquishing forever the power of himself or any future governor to nominate a Superintendent of Elections in a county where he did not originally exercise his right to so appoint.

In the case of Marvel v. Camden County, 137 N. J. L. 47 (E. & A. 1947) the Court indicated a broad interpretation of the phrase “in the same manner” and the Court in this ease would also ascribe to those words a broad intent and a sensible intent, and the Court would thus find that the use of the words “filled in the same manner as the original appointment” that appear in the final paragraph of this statute refer back to the manner in which an appointment to such a position “shall be filled by some suitable person who shall be nominated by the Governor with the advice and consent of the Senate * * *” The Court further finds that the appointive power of the Board of Freeholders exists only on the first occasion after the adoption of the resolution if the Governor does not exercise his rights of appointment within the 30 day period. If the Governor of the State relinquishes his rights to make an appointment within 30 days following the taking effect of the resolution and then the Board of Freeholders exorcised its right to appoint, any future appointments or any vacancies thereafter shall be filled by the Governor of the State with the advice and consent of the Senate.

Judgment will be submitted by the attorney for the plaintiffs within 10 days in accordance with R. 4:42-1.


source: Caselaw Access Project

author: Halpern, J. A. D.

license: Public Domain

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. HENRY MADEWELL, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued November 23, 1971
    Decided December 10, 1971.

      Before Judges Lewis, Kolovsky and Halpeeh.

      Mr. Stephen Apollo, Assistant Deputy Public Defender, argued the cause for appellant {Mr. Stanley C. Van Ness, Public Defender, attorney).

      Mr. Rollin 8. Neal, Assistant Prosecutor, argued the cause for respondent {Mr. George F. Kugler, Jr., Attorney General of New Jersey, attorney).
   The opinion of the court was delivered by

Halpern, J. A. D.

Defendant was convicted by a jury of abandoning a rented motor vehicle in violation of N. J. S. A. 2A:111-35, which provides:

Any person who, after hiring, leasing or renting a motor vehicle under an agreement in writing, which provides for return of said vehicle to a particular place, or at a particular time, shall abandon said vehicle, or secrete, convert, sell or attempt to sell the same or any part thereof, or who shall fail to return the vehicle to said place within the time specified, and is thereafter personally served with a written demand, or upon whom written demand is thereafter made by registered mail, to return said vehicle to the place specified in the written agreement within 72 hours from the time of the personal service or service by registered mail of such demand, and who fails, except for causes beyond his control to return said vehicle to the lessor within said period, is guilty of a misdemeanor.
Service by registered mail shall be deemed to be complete upon deposit in the United States mail of such demand securely wrapped, postpaid and addressed to such person at the address for such person set forth in the written agreement for the hire or use thereof or in the absence of such address to such person’s last known place of residence.
It shall be a complete defense to any civil action arising out of or involving the arrest or detention for a violation of this act of any person upon whom such demand was served personally or by registered mail that he failed to return the vehicle to the place specified in the rental agreement within such 72-hour period.

A suspended siz-month prison sentence was imposed. Defendant appeals from the judgment of conviction.

The jury could find from the testimony the following essential facts: Defendant, by written agreement dated October 31, 1969, leased a motor vehicle from Mullane Eord to be returned by November 6, 1969. Subsequent to November 6, 1969 many unsuccessful efforts, by way of personal visits and telephone calls to defendant’s home, were made by Mullane to communicate with defendant to ascertain why the vehicle had not been returned. On or about February 19, 1970 the police located the leased vehicle in a badly damaged condition on a street in Fort Lee. Prior to retrieving the vehicle Mullane had sent a registered letter to defendant demanding its return within 24 hours. The letter was returned to Mullane unclaimed.

Despite defendant’s denials we are convinced there was ample support in the record for the jury’s determination that defendant had abandoned the vehicle as charged in the indictment and as proscribed by N. J. S. A. 2A:111-35. The principal issue raised on appeal by defendant is that the statute made it mandatory that Mullane serve a written demand upon defendant to return the vehicle within 72 hours before a crime was committed.

In construing a statute courts are enjoined to consider it as a whole and not in parts; to strive to arrive at an interpretation that is consistent with the intent of the Legislature and the purpose for its passage, as revealed by the contents of the entire legislation on the subject, and not to reach an absurd or impractical result, but to effectuate the statutory scheme. Richards v. United States, 369 U. S. 1, 82 S. Ct. 585, 7 L. Ed. 2d 492 (1962); State v. Bander, 56 N. J. 196 (1970); Robson v. Rodriquez, 26 N. J. 517 (1958); John S. Westervelt's Sons v. Regency, Inc., 3 N. J. 472, 479 (1950). So viewed, it is clear that the Legislature intended that where a lessee “shall abandon said vehicle, or secrete, convert, sell or attempt to sell the same or any part thereof * * a crime is committed even though the 72-hour written demand to return is not given.

The statute creates separate categories by the use of the disjunctive word “or” which follows immediately after the comma at the end of the above quoted portion of the statute. The first category, as just quoted, does not require a written demand for return of the vehicle to make the crime complete; however, the second does require such a written demand to complete the crime. The statutory language as to the latter category is: “or who shall fail to return the vehicle to said place within the time specified, and is thereafter personally served with a written demand, or upon whom written demand is thereafter made by registered mail, to return said vehicle to the place specified in the written agreement within 72 hours from the time of * * * demand, * * In this category the Legislature contemplated a situation wherein the rental period has expired and the lessee has not abandoned, secreted, converted or stolen the vehicle, but has merely failed to return it on time or to the place required. We suggest that such interpretation becomes self-evident if one eliminates the comma after the word “specified,” as was done in N. J. S. A. 2A:111-38 dealing with the failure to return rented personalty other than motor vehicles. Such interpretation is consistent with the last sentence in the statute which gives immunity to the lessor in any civil suit by the lessee if the 72-hour demand is utilized.

The interpretation arrived at by us is a practical and common-sense one. When a lessee abandons, secretes or steals the leased vehicle no sound reason exists for requiring the lessor to serve the lessee with a written demand for its return, since such action evinces a wrongful intent. On the other hand, if the failure to return on time or to the place specified is not willful, then the legislative intent is clear — namely, a written demand for return is necessary before a crime is committed. The 24-hour written demand by Mullane was mere surplusage.

In reaching this interpretation of N. J. S. A. 2A :111-35 we have followed the accepted doctrine of disregarding punctuation, and adding or deleting words or phrases where necessary to arrive at the legislative intent. Howard v. Harwood’s Restaurant Co., 25 N. J. 72, 88-90 (1957); Weinacht v. Bd. of Chosen Freeholders, Bergen County, 3 N. J. 330, 334 (1949); Application of Walter Marvin, Jr., 97 N. J. Super. 62, 73-74 (App. Div. 1967), aff’d 53 N. J. 147 (1969), cert. den. 396 U. S. 821, 90 S. Ct. 62, 24 L. Ed. 2d 72 (1969); Howard Savings Institution v. Newark, 63 N. J. L. 547, 551-553 (E. & A. 1899); Brossard, “Punctuation of Statutes,” 69 N. J. L. J. 65 (1946).

We have examined defendant’s contentions that N. J. S. A. 2A:111-35 is unconstitutional in that it is vague and uncertain, that it violates the equal protection clauses of the Federal and State Constitutions, and that it violates the New Jersey Constitution in that it embraces more than one object, and find them without merit. See Burton v. Sills, 53 N. J. 86 (1968), app. dism. 394 U. S. 812, 89 S. Ct. 1486, 22 L. Ed. 2d 748 (1969); State v. Moretti, 52 N. J. 182 (1968), cert. den. 393 U. S. 952, 89 S. Ct. 376, 21 L. Ed. 2d 363 (1968); Mason v. Civil Service Comm’n, 51 N. J. 115 (1968); Roe v. Kervick, 42 N. J. 191 (1964); Jamouneau v. Harner, 16 N. J. 500 (1954), cert. den. 349 U. S. 904, 75 S. Ct. 580, 99 L. Ed. 1241 (1955).

Hor is there any merit in defendant’s contention that the court erred in denying his motion for a judgment of acquittal. In view of the testimony in the record, including the legitimate inferences to be drawn therefrom, the jury could find that defendant abandoned the leased car and was guilty of the crime charged beyond a reasonable doubt. State v. Mayberry, 52 N. J. 413, 436-437 (1968), cert. den. 393 U. S. 1043, 89 S. Ct. 673, 21 L. Ed. 2d 593 (1969) ; State v. Reyes, 50 N. J. 454, 458-459 (1967).

Affirmed.


author: Pee Cukiam.

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. JAMES OSCAR WALKER, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Submitted November 29, 1971
    Decided December 10, 1971.

      Before Judges Coneokd, Matthews and Ebitz.

      Messrs. McGlynn, McGlynn, Ruprecht & Graham for appellant {Mr. Louis Ruprecht, of counsel).

      Mr. Joseph P. Lordi, Prosecutor of Essex County, for respondent {Mr. Michael E. Stieber, of counsel).
   Pee Cukiam.

We granted leave to appeal from an order dismissing a motion to suppress evidence on the ground that no brief accompanied the motion, although the motion was timely filed.

We are in disagreement with the asserted proposition that defendants filing motions to suppress may routinely delay filing an accompanying brief on the facts and the law, as required by the rule, R. 3:5-7(a), on the claimed justification that advance notice to the State of his factual contentions puts a defendant in an unfair position. The bar is herewith placed on notice that the rule is intended, ordinarily, to be complied with as written. Any complaint about the fairness of the rule should be addressed to the Supreme Court.

In the particular circumstances here shown, however, denial of the timely motion to suppress would visit an undue hardship on a defendant asserting a constitutional right. The several delays in scheduling the hearing of the motion were not the fault of defendant. The State was not prejudiced, a brief for defendant having actually been served on the prosecutor before the date finally agreed upon for the hearing.

The order is reversed and the matter remanded for hearing of the motion to suppress.


author: Kilkenny, P. J. A. D.

text:
    ROBERT A. BROWN, CLAIMANT-APPELLANT v. BOARD OF REVIEW, DIVISION OF EMPLOYMENT SECURITY, DEPARTMENT OF LABOR AND INDUSTRY, STATE OF NEW JERSEY AND SOPHIA, INC., DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Submitted November 30, 1971
    Decided December 9, 1971.

      Before Judges Kilkenny, Laureo que and Lane.

      Mr. James B. Ventantonio, Director Somerset County Legal Services Corp., for appellant (Mr. Francis T. Gleason, Jr., on the brief).

      Mr. Charles Quinn, Legal Assistant for Board of Review, Division of Employment Security, for respondent.
   The opinion of the court was delivered by

Kilkenny, P. J. A. D.

Claimant appeals from a final decision of the Board of Review, Division of Employment Security, affirming the determination of the Appeal Tribunal which held that claimant had left work on August 10, 1970 voluntarily without good cause attributable to such work, thereby rendering himself disqualified and ineligible for unemployment benefits under N. J. S. A. 43:21-5(a).

Both administrative agencies concurred in their findings of fact that claimant had left his work because of a non-work-connected disability, and that he had made no reasonable effort to preserve or retain the employer-employee relationship.

The basic facts are not disputed. Claimant, age 24, began working for respondent N. J. Sophia, Inc., in 1966 as a hair stylist. He last worked for this employer on or about February 6, 1970, a span of about four years. In the six months prior to his leaving that employment, he was earning about $150 per week.

Since about the age of 19 years claimant had diabetes mellitus which required him to use insulin. He claims that as a direct result of the pressures of his employment, he was unable to eat the proper amount of food at the required intervals and had insulin reactions. On or about February 6, 1970 claimant was compelled to obtain medical assistance and quit his job, allegedly on the advice of his doctor.

Claimant received disability benefits for approximately six months and then applied for unemployment benefits as of August 10, 1970.

Claimant testified before the hearing examiner that he was advised by his doctor that he should seek employment in some other occupation because his job as a hair stylist— a job which is still available to him with the same employer — would aggravate his diabetic condition due to the nature of the work. There was no supporting medical testimony. this hearsay statement standing alone.

The hearing examiner was apparentiy satisfied as to claimant’s availability for work, stating that “the basic question here is voluntary leaving rather than availability.”

The Board of Review agreed with the decision of the Appeal Tribunal, which denied benefits. The latter based its disqualification of claimant in reliance upon Stauhs v. Board of Review, 93 N. J. Super. 451 (App. Div. 1967), wherein we said:

We therefore conclude that a claimant who quits his job because his work duties are detrimental to an existing physicial condition or state of health which did not have a work-connected origin has left his work voluntarily without good cause .“attributable to such work” and he is disqualified from unemployment benefits, [at 457-458]

Citing Bussman Mfg. Co. v. Industrial Comm'n of Missouri, 327 S. W. 2d 487 (Mo. App. 1959), which interpreted the word “attributable” as requiring “a causal connection be tween the disability and the work of the claimant.” (At 491; emphasis added.)

In Stauhs, supra, the claimant, a postal employee, became unable physically to perform the duties of his job as a special delivery dispatcher — walking up and down 35 steps approximately every 20 minutes and answering some 60 to 85 telephone calls a day •— due to an operation for the removal of a tumor of the larynx. His physician asserted that the physical exercise required by the employment prevented proper healing and he recommended that the employee seek other work. A transfer to lighter duties was sought and denied, no other assignment being available to him. We held that the words “without good cause attributable to such work”, referred to an existing physical condition or state of health which had a “work-connected origin.”

In Wojcik v. Board of Review, 58 N. J. 341 (1971), a 49-year-old employee took a job performing general factory work when he was unable to find employment in his own profession of engineering. The factory job required substantial physical exertion including heavy lifting, bending and twisting. About 25 years earlier, the employee had a serious problem with his back for which he was treated. He had no trouble with his back while employed as an engineer because the work did not require strenuous physical activity. The picture changed after he began the factory job ■ — ■ after five weeks his back was troubling him. A medical examination revealed a serious back disorder. The doctor told him his work "may have aggravated” the condition but, whatever the cause, he could not continue the work he was doing. (Emphasis added.) The Supreme Court upheld the denial of unemployment benefits, finding the medical evidence, in the equivocal statement “may,” insufficient.

However, the Supreme Court said in Wojcik (at 344), “* * * we agree that the aggravation of a preexisting condition would constitute good cause under the statute * * *.” (Emphasis added.) Thus, a distinction is drawn between a work effort which “aggravates” a previous physical condition and causes an employee to quit his job, and work effort which precludes an employee, because of a preexisting disability, from performing the duties of the employment. Where the work “aggravates,” there is a causal connection between “such work” and the quitting, so as to permit the conclusion that the employee voluntarily quit but “with good cause attributable to such work.” When a preexisting physical disability, not of work-connected origin, makes quitting necessary because of an inability to perform the job, the statutory reference “attributable to such work” has not been satisfied.

Diabetes mellitus is defined as “a familial constitutional disorder of carbohydrate metabolism involving inadequate secretion or utilization of insulin, characterized by hyperglycemia, glycosuria, polyuria, and marked by thirst, hunger, itching, weakness, loss of weight, and when severe acidosis and coma.” Webster’s Third New International Dictionary (1966).

The difficulty with the record before us is its lack of adequate competent evidence that the claimant’s work duties “aggravated” his long-standing diabetic condition, not originally work-connected, and that such aggravation caused his voluntary leaving his job to join the ranks of the unemployed. As noted above, there was no medical testimony. Claimant’s hearsay testimony as to what his doctor advised him would not support a finding that his work aggravated his diabetic condition. ETor does his conclusory statements to that effect. He averred that his diabetes was “now well controlled” and “My diabetes was controlled on August 10 [1970],” when he applied for unemployment benefits.

“111 health or physical infirmity is, of course, good cause for employees to cease working. But unless the illness or physical infirmity is shown to have resulted from or to have been caused by the employment, the employee is disqualified from receiving benefits * * Henderson v. Dept. of Industrial Relations, 252 Ala. 239, 40 So. 2d 629 (Sup. Ct. 1949). Eor example a bursitis of the left elbow, preexisting the employment and not stemming from the work, may cause an employee to quit his job, but it does not constitute good cause “attributable to such work.” The impairment in performing one’s job must result specifically from the character of the work performed. West Point Mfg. Co. v. Keith, 47 So. 2d 594, 597 (Ala. Ct. App. 1950).

As noted in Wojcik, supra:

The question is whether a person who takes work he is not required to take should suffer the loss of unemployment benefits when he is unable to cope with that work. We do not believe he should. * although the Law wisely recognizes that persons should not be compelled to accept employment which is unsuitable, it is contrary to the spirit of the Law to penalize persons who take such work. [58 N. J. at 345-346]

We deem it in the interest of justice to reverse the decision of the Board of Review and to remand the matter for a supplemental hearing and determination as to whether claimant’s duties as a hair stylist so aggravated his preexisting diabetic condition as to constitute just cause “attributable to such work” as to be legal justification for his voluntary quitting of that job with his employer.

Reversed and remanded. We do not retain jurisdiction.


author: Matthews, J. A. D.

text:
    PETER SHUCHTER, INDIVIDUALLY, AND NEW JERSEY S.A.N.E., 2 ERIE STREET, MONTCLAIR, N. J., PLAINTIFFS-APPELLANTS, v. DIVISION ON CIVIL RIGHTS, DEPARTMENT OF LAW AND PUBLIC SAFETY, STATE OF NEW JERSEY, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued October 18, 1971
    Decided December 13, 1971.

      Before Judges Coetoed, Matthews and Fritz.

      Mr. Arnold K. Mytellca argued the cause for appellants (Messrs. Clapp & Eisenberg, attorneys; Mr. Michael A. Bacher, of counsel).

      Mr. Alfred L. Nardelli, Deputy Attorney General, argued the cause for respondent (Mr. George F. Kugler, Jr., Attorney General of New Jersey, attorney; Mr. Stephen Shill-man, Assistant Attorney General, of counsel).
   The opinion of the court was delivered by

Matthews, J. A. D.

On this appeal from the Division on Civil Rights we are asked to decide whether the word "creed,” as used in the Law against Discrimination (N. J. S. A. 10:5-1 et seq.), includes beliefs other than those relating to a man’s religion —■ i. a., his relationship or lack of relationship with a diety.

Plaintiff S. A. N. E. is a pacifist organization which expounds certain political, ethical and philosophical beliefs, including opposition to the Vietnam War. It has been described as having been in the forefront of the peace movement in this State. Plaintiff Shuchter is the project director of the New Jersey branch of the organization. S. A. N. E. sought to rent a storefront in the Town of Montclair but was denied that opportunity, it is alleged, because the owner was totally unsympathetic to the organization’s beliefs. The Division on Civil Eights dismissed plaintiffs’ complaint, determining that it had no jurisdiction over discrimination because of political belief. We affirm.

We see no purpose in discussing the dictionary or other meanings of the word “creed,” which undisputedly has its root in the Latin verb erado, meaning “I believe.” Meanings to be attributed to the word “creed” because of its origin and traditional breadth of usage are irrelevant to our inquiry. The question directly in point is what the Legislature intended when it employed the word in the statute in question.

A review of the history of our civil rights legislation dating back to L. 1884, c. 219, convinces us that the use of the word “creed” in that kind of legislation by the Legislature (it was introduced into our laws in L. 1921, c. 174, without comment) contemplates the holding of certain beliefs with respect to religious principles. Our conclusion is further buttressed by a review of the proceedings of the Constitutional Convention of 1947 — specifically those areas dealing with the Bill of Eights. It is significant to us that the Convention was held within two years of the enactment of L. 1945, cc. 168 to 174, which created the Division Against Discrimination and broadened all of our civil rights laws to include national origin, ancestry and creed. Unquestionably, the object of our laws against discrimination is to further our constitutional provision guaranteeing to each citizen civil rights. N. J. S. A. 10:5-2. The constitutional provision in question, N. J. Const. (1947), Art. I, par. 5 provides :

No person shall be denied the enjoyment of any civil or military right, nor be discriminated against in the exercise of any civil or military right, nor be segregated in the militia or in the public schools, because of religious principles, race, color, ancestry or national origin. [Emphasis added]

We recognize that the word “creed” has more recently been accepted to embrace meanings other than those of a religious context. See e. g., Webster’s New International Dictionary (3d ed. 1961 unabridged). We do not believe, however, that it is our function as a reviewing court to expand a legislative enactment because of new trends in the definition of a word. Whether discrimination on the basis of moral, philosophical, social or political values should be condemned or permitted among the citizens of this State is a question most properly answerable by the Legislature. The problems involved are myriad and seemingly insoluble by the judiciary. Eor example, should it be unlawful for the owner of a meeting hall who is of one political persuasion to bar the rental of that meeting hall to a group of the opposite political persuasion simply because of political belief?

The order of the Division on Civil Rights dismissing plaintiffs’ complaint because of lack of jurisdiction is affirmed. No costs.


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

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. ROBERT CHESTER OSBORNE, CARL JABLONSKI AND THEODORE MICHELE, DEFENDANTS-APPELLANTS.
    Superior Court of New Jersey Appellate Division
    Argued November 29, 1971
    Decided December 10, 1971.

      Before Judges Coneord, Matthews and Fritz.

      Mr. Robert H. Simandl argued the cause for appellants (Messrs. Simandl, Lef, Kraemer & Waldor, attorneys).

      Mr. David 8. Baime, Assistant Prosecutor, argued the cause for respondent {Mr. Joseph P. Lordi, Essex County Prosecutor, attorney).
   The opinion of the court was delivered by

Conford, P. J. A. D.

We granted leave to appeal from the denial of a motion to suppress evidence seized under search warrants in connection with impending criminal prosecutions for exhibiting an allegedly obscene film. Important First and Fourteenth Amendment questions appeared to be involved. For reasons which follow, we affirm.

Defendants are the managers, respectively, of three movie theatres in Essex County in each of which there commenced, on April 81, 1971, the public showing of the film, “Censorship in Denmark.” A sheriffs detective who viewed the films filed an affidavit explicitly describing in objective terms the content of the movie, and on the basis thereof he obtained search warrants from a County Court judge for two of the theatres, authorizing seizure of the prints of the film. A third warrant, for the other theatre, was issued by a municipal magistrate who viewed the film in person. Pursuant to the warrants, the prints of the film being exhibited were seized and defendants were arrested on April 21, 1971 for violation of the criminal obscenity statute, N. J. S. A. 2A:115-1 et seq. As of the date of filing of briefs herein the matters were awaiting grand jury action.

At the hearing of the motion to suppress, and before us, defendants have argued that the seizure of the films in advance of an adversarial hearing and judicial determination of their obscenity is a violation of First Amendment rights of freedom of expression remediable against state activity via the Fourteenth Amendment. Defendants do not contest the fact that, based on the detective’s affidavit, probable cause of obscenity was made out, but they contend that in the present procedural posture of this litigation the question of obscenity vel non is irrelevant. They aptly cite a plethora of decisions holding that in order to assure against previous restraint of lawful communications, frequently distinguishable from obscene ones by only a dim shadowy line, no form of expression may be suppressed as obscene in advance of a judicial determination of obscenity in adversarial proceedings or unless attended by carefully circumscribed procedural safeguards looking toward speedy adjudication of the issue of obscenity in such proceedings, none of which prerequisites was here satisfied. State v. Hudson County News Co., 41 N. J. 247, 260 — 261 (1963); Marcus v. Property Search Warrant, 367 U. S. 717, 81 S. Ct. 1708, 6 L. Ed. 2d 1127 (1961); A Quantity of Books v. Kansas, 378 U. S. 205, 84 S. Ct. 1723, 12 L. Ed. 2d 809 (1964) ; Freedman v. Maryland, 380 U. S. 51, 85 S. Ct. 734, 13 L. Ed. 2d 649 (1965); Blount v. Rizzi, 400 U. S. 410, 416-417, 91 S. Ct. 423, 27 L. Ed. 2d 498 (1971).

Motion pictures are within the ambit of Eirst Amendment protection, if not obscene. Jacobellis v. Ohio, 378 U. S. 184, 84 S. Ct. 1676, 12 L. Ed. 2d 793 (1964). However, the procedural safeguards aforementioned are, in principle, as fully applicable to state prosecution of alleged offenders in this area as in the ease of other forms of expression. Freedman v. Maryland, supra; Metzger v. Pearcy, 393 F. 2d 202 (7 Cir. 1968); Tyrone, Inc. v. Wilkinson, 410 F. 2d 639 (4 Cir. 1969), cert. den. 396 U. S. 985, 90 S. Ct. 477, 24 L. Ed. 2d 449 (1969); Bethview Amusement Corp. v. Cahn, 416 F. 2d 410 (2 Cir. 1969), cert. den. 397 U. S. 920, 90 S. Ct. 929, 25 L. Ed. 2d 101 (1970); Astro Cinema Corp. Inc. v. Mackell, 422 F. 2d 293 (2 Cir. 1970); Cambist Films, Inc. v. Duggan, 420 F. 2d 687 (3 Cir. 1969); and see Overstock Book Company v. Barry, 436 F. 2d 1289, 1295 (2 Cir. 1970); but see United States v. Wild, 422 F. 2d 34 (2 Cir. 1969), cert. den., sub nom. Wild v. U. S., 402 U. S. 986, 91 S. Ct. 1644, 29 L. Ed. 2d 152 (1971); cf. Flack v. Municipal Court for Anaheim-Fullerton J. D., 66 Cal. 2d 981, 59 Cal. Rptr. 872, 429 P. 2d 192 (Sup. Ct. 1967).

Defendants additionally contend that the State had available for expeditious advance determination of the issue of obscenity, without need for seizure on an ex parte warrant, the provisions of L. 1962, c. 166 (N. J. S. A. 2A:115-3.5 to 3.9). This statute creates a summary proceeding looking toward a speedy hearing and determination, and providing for an order enjoining dissemination and directing destruction of materials found obscene. The court so adjudicating would, inferentially, be empowered to order the materials held for evidential use in any impending criminal proceedings prior to their destruction. The act would seem to have been adopted by our Legislature for the express purpose of enabling expeditious suppression of obscene materials, with due regard to the constitutional burden of the State to establish judicially the fact of obscenity prior to actual suppression. See Freedman v. Maryland, supra (380 U. S. at 58-60, 85 S. Ct. 734); Blount v. Rizzi, supra (400 U. S. at 416-417, 91 S. Ct. 423). Note the recent employment of the statute by a county prosecutor in Keuper v. Wilson, 111 N. J. Super. 489 (Ch. Div. 1970), opinion supplemented in 111 N. J. Super. 502 (1970).

The motion judge denied the request for suppression, primarily on the basis of Lee Art Theatre, Inc. v. Virginia, 392 U. S. 636, 88 S. Ct. 2103, 20 L. Ed. 2d 1313 (1968). There the court, in a per curiam opinion, reversed a state court conviction for showing an obscene film, on the narrow ground that the film had been seized on the basis of a warrant supported by an affidavit of a police officer containing only conclusionary assertions of obscenity. But we do not consider that the court’s confinement, in this particular instance, of its grounds of reversal to Fourth Amendment considerations, is any basis to surmise relaxation by the court of the First and Fourteenth Amendment principles rehearsed above. This is particularly so in light of the recent citation with approval in Blount v. Rizzi, supra (400 U. S. at 415, 91 S. Ct. 423) of Freedman v. Maryland, supra, in particular relation to the rule against previous restraint.

So much conceded to defendants, we are yet not persuaded that the single prints of the controversial film held by the prosecuting authorities should be ordered returned to defendants. They were taken under valid search warrants. They could be lost or tampered with out of the prosecutor’s hands. Possession should be retained by him to assure availability before grand or petit jury of the identical film shown. As the State concedes in its brief, “Nothing prevents the defendants from showing copies of the motion picture.” It was admitted by defendants at oral argument that other prints of the film were and are readily available. If the prosecuting authorities sought to seize such substitute prints on a resliowing of the film by any defendant, without their first pursuing the remedy afforded by N. J. S. A. 2A:115-3.5 to 3.9, mentioned above, they would plainly be acting at peril of judicial prohibition because they would then, in the light of their overall activity, be effectively censoring the film without prior adversarial adjudication of obscenity, contrary to the imperative constitutional doctrine above outlined.

We have not overlooked certain of the eases cited above, and relied on by defendants, which, in a substantially similar context, have required the prosecutor to turn over the seized films to the exhibitor. Those courts have deemed the state’s interest in the film as criminal evidence adequately served by conditioning the return on the defendant’s being ordered or subpoenaed to supply a print to the State for trial of the charge and by restraining any tampering. See, e. g., Tyrone, Inc. v. Wilkinson, supra, (410 F. 2d at 640-641); Bethview Amusement Corp. v. Cahn, supra (416 F. 2d at 412). We take a different view of the matter. The State should not be placed at any degree of inconvenience or imperilment of evidence in preparation for trial of an alleged crime, where the constitutional rights of the film exhibitor are protected by such a judicial caveat as the monition we have expressed above concerning repetitive interference by the authorities with the showing of a particular movie in advance of adversarial adjudication of its obscenity.

Affirmed; no costs.


author: Pee Cubiam.

text:
    JAMES H. BLAIR, DIRECTOR, DIVISION ON CIVIL RIGHTS, DEPARTMENT OF LAW AND PUBLIC SAFETY, STATE OF NEW JERSEY, COMPLAINANT-RESPONDENT, v. THE MAYOR AND COUNCIL, BOROUGH OF FREEHOLD; THE FREEHOLD FIRE DEPARTMENT OF FREEHOLD, NEW JERSEY, A NEW JERSEY CORPORATION, CURTIS YATES, AND WALTER KOZLOSKI, RESPONDENTS-APPELLANTS.
    Superior Court of New Jersey Appellate Division
    Argued October 4, 1971
    Decided December 13, 1971.

      Before Judges Cokteohd, Matthews annd Fbitz.

      Mr. Jerry 8ohol argued the cause for appellants Mayor and Council of the Borough of Freehold.

      Mr. William B. Blair Jr. argued the cause for appellant Freehold Fire Department (Messrs. Parsons, Canzona, Blair & Warren, attorneys).

      Mr. Douglas J. Harper, Deputy Attorney General, argued the cause for respondent (Mr. George P. Kugler, Jr., Attorney General of New Jersey, attorney; Mr. Stephen Slcillman, Assistant Attorney General, of counsel).
   Pee Cubiam.

This is an appeal from an order of the Director of the Division on Civil Eights which determined that the membership and admission procedures ior entry into the volunteer fire department ol the Borough of Freehold, as contained in a certain ordinance of the borough, violated the provisions of the Law Against Discrimination, N. J. S. A. 10:5-1. et seq. The order of the director has been appealed by both the mayor and council of the borough and the fire department.

Except insofar as he concludes that the facilities of the fire department constitute a public accommodation under the provisions of the Law Against Discrimination, the findings, determination and order of the director are affirmed, essentially for the reasons stated by hearing examiner Pressler.

We are not persuaded that the facilities maintained for the pleasure and sociability of members of the volunteer fire department are the equivalent of facilities maintained for the use of the general public of a personal nature. The facilities of the fire department, as shown by the record here, are maintained for the use of its members and not for the general public. Such facilities are therefore not an accommodation within the meaning of the act.

Our reading of the record satisfies us that no overt act of discrimination with respect to either Jews or blacks was established at the hearing below. This in itself does not establish the lack of discrimination. See Jackson v. Concord Company, 54 N. J. 113 (1969). It is our conclusion that the admission procedures established under the various borough ordinances, including the latest, constitute an unlawful employment practice because of the establishment of requirements irrelevant to the proper performance of the duties of firemen. We cannot conceive of any lawful reason for the requirement of a vote of the membership of a volunteer fire department for admission of a new member thereto. The only rational reason for such a requirement is exclusion. The overall record contains substantial credible evidence to warrant the conclusion that such exclusion was motivated at least in part by race. The determination of the director must therefore be sustained. Atkinson v. Parsekian, 37 N. J. 143, 149 (1962).

Finally, we have no difficulty in affirming the director’s conclusion that he has jurisdiction over municipalities and volunteer fire companies. To hold otherwise would undermine the very substance of the Law Against Discrimination. As Mr. Justice Jacobs pointed out in his opinion for the court in Jenkins v. Morris Tp. School Dist. and Bd. of Ed., 58 N. J. 483 (1971) :

[Political subdivisions of the states whether they be “counties, cities or whatever” are not “sovereign entities” and may readily be bridged when necessary to vindicate federal constitutional rights and policies. * * * It seems clear to us that, similarly, governmental subdivisions of the state may readily be bridged when necessary to vindicate state constitutional rights and policies. This does not entail any general departure from the historic home rule principles and practices in our State in the field of education or elsewhere; but it does entail suitable measures of power in our State authorities for fulfillment of the educational and racial policies embodied in our State Constitution and in its implementing legislation. * * * [at 500]

Affirmed.


author: Mintz, J. A. D.

text:
    JERSEY CITY REDEVELOPMENT AGENCY, A BODY CORPORATE AND POLITIC OF THE STATE OF NEW JERSEY, PLAINTIFF-APPELLANT, v. BANCROFT REALTY CO., INC., A CORPORATION OF THE STATE OF NEW JERSEY, ET AL., DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued November 8, 1971
    Decided December 9, 1971.

      Before Judges Collester, Mintz and Lynch.

      Mr. Joel I. Bergman argued the cause for appellant (Messrs. Krieger, Oho dash and Politan, attorneys; Messrs. Joel I. Bergman and Kenneth P. Keller, on the brief).

      Mr. William L. Handler argued the cause for respondent (Messrs. George B. and William L. Handler, attorneys).
   The opinion of the court was delivered by

Mintz, J. A. D.

Plaintiff appeals from that portion of the final judgment following a jury verdict which ordered that the claim of the City of Jersey City for taxes and interest thereon due and owing from 1965 to 1968 shall not be a lien upon the judgment and condemnation award and that the condemnation award be paid to defendant property owner without making such deductions.

Defendant Bancroft Realty Co., Inc., (Bancroft) was the owner of a five-story brick tenement house situate at 185 Ninth Street in Jersey City (city), which it acquired in 1951 or 1952. On Eebruary 2, 1960 the city, pursuant to statutory authority, by resolution declared certain property, including defendant’s premises, blighted. The blighted area is known as the Henderson Street Urban Renewal Project.

In 1967 the Legislature by L. 1967, c. 217 and c. 218, amended the Blighted Area Act, subsection 21.10 (N. J. S. A. 40:55-21.10), and the Eminent Domain Act, subsection 9 (N. J. S. A. 20:1-9), with respect to compensation to be paid when property is acquired in eminent domain proceedings in connection with the development or redevelopment of a blighted area. Both statutes, as amended, now provide that in such cases “the value of any property sought to be acquired shall be fixed and determined to be no less than the value as of the date of the declaration of blight by the governing body * * The constitutionality of these 1967 amendments was adjudicated in Jersey City Redevelopment Agency v. Kugler, 58 N. J. 374 (1971).

The commissioners appointed to appraise Bancroft’s property filed their report on April 1, 1969. The respective parties cross-appealed from said award. On December 13, 1969 plaintiff filed its complaint and declaration of taking. A jury trial as to the value of the premises was held in September 1970, resulting in a judgment valuing the premises at $23,500. The jury, in answer to a special interrogatory, found that the ability of the property to produce rental income was substantially impaired in 1965 by the declaration of blight and the delay of plaintiff in taking the property. The trial judge then entered the judgment abating the taxes thereon from 1965 to 1968.

At trial George E. Handler, an attorney and president of Bancroft, testified that as of February 1960 the ten three-room apartments each rented for $50 monthly, and each of the ten two-room apartments for $35 monthly. However, commencing in 1960 and until some time in 1965 the premises deteriorated and new tenants could not be obtained. As an apartment became vacant, it would be vandalized. Finally, in 1965 the building became vacant except for the caretaker. He further testified that there were constant examinations of the premises by plaintiff’s agent. He was not present during these visitations and did not know what these representatives said to the tenants, nor was there any testimony by anyone concerning any statements or representations made by the Agency’s representatives to any tenant.

Handler further testified that as a consequence of these visitations, he contacted the Agency representative from time to time commencing in 1961 through the beginning of 1965. Particularly in 1964 he spoke with the head of the Agency, whose name he could not recall, and informed him of his inability to keep the premises rented. He was told “Don’t worry, we will get to it.” Handler further alluded to newspaper articles in the Jersey Journal indicating that a taking was imminent, but such newspaper articles were not produced. He further testified that all records pertaining to this property were destroyed in 1967, including the income tax returns, and that no effort was made to obtain copies of the pertinent income tax returns prior to trial. He admittedly knew of some tenement houses in the area that remained tenantable through 1968, although the majority of them became blighted.

Plaintiff’s real estate experts testified that the deterioration of Bancroft’s property was not caused by the declaration of blight, that properties in the Henderson Street area commenced to gradually decline from about 1940. One expert estimated the subject building to be around 90 years old, while the other expert estimated its life at 70 years as of 1960. The extremely modest rentals (assuming their collectibility) for the respective apartments prior to the declaration of blight are compelling proof of declining value.

Bancroft stresses that until the amendments to the cited statutes were enacted in late 1967, it believed it would receive no more for the property than it was worth as of the date of the declaration of taking, and therefore it would have every incentive to maintain the building in good condition and keep it tenanted. However, a contrary view is expressed in Lyons v. Camden, 52 N. J. 89 (1968). There the change effected by L. 1967, c. 217 and c. 218 was not in issue. However, the court opined that a declaration of blight ordinarily adversely affects the market value of the property involved because in many instances the physical taking does not occur fox a number of years. There is no reasonable market otherwise open to the property owner for the sale of the property. “Moreover, in the interim Ms good housekeeping incentive generally recedes and deterioration of the building sets in.” Id. at 99 (emphasis supplied). As already noted, the Legislature recognized this inequity by the 1967 amendments in providing that when previously declared blighted property is condemned, the value shall be fixed at not less than the value as of the date of the declaration of blight.

We are satisfied that the proofs establish either a general declining value of property in the neighborhood, including the subject property, prior to the declaration of blight or, at best, an acceleration in the deterioration caused by the declaration of blight. In any event, a diminution in value caused by a declaration of blight does not constitute a taking in the constitutional sense. Wilson v. Long Branch, 27 N. J. 360 (1958), cert. den. 358 U. S. 873, 79 S. Ct. 113, 3 L. Ed. 2d 104 (1958). And as observed in Jersey City Redevelopment Agency v. Kugler, supra:

Since the redevelopment project might be abandoned by the municipality, it followed that no legally cognizable damage existed, at least until an actual taking occurred through exercise of the power of eminent domain. [58 N. J. at 381]

To same effect see Housing Authority of Hoboken v. Segal, 112 N. J. Super. 359, 364 (App. Div. 1970).

Clearly, the proofs do not support an actual taking by plaintiff prior to the filing of its complaint. However, Bancroft in effect alleges that the acts and conduct of plaintiff from date of the declaration of blight until some time in 1965 constituted a constructive or de facto taking which entitles it to an abatement of taxes from 1965 through 1968.

Accepting as true all the evidence offered by Bancroft, and the legitimate inferences that may be drawn therefrom, we conclude that the trial court erred in denying plaintiff’s motion to strike defendant’s claim for an abatement of the taxes. We fail to perceive any valid testimony in the record of any conduct on the part of the Agency during the critical period in question causally related to the depreciation of Bancroft’s property, or constituting a constructive “taking” prior to the filing of the complaint.

The proofs in the instant case fall far short of the proofs presented by the property owner in In re Elmwood Park Project Section 1, Group B, 376 Mich. 311, 136 N. W. 2d 896 (Sup. Ct. 1965); Foster v. Herley, 330 F. 2d 87 (6 Cir. 1964); City of Cleveland v. Carcione, 118 Ohio App. 525, 190 N. E. 2d 52 (Ohio Ct. App. 1963). In each of the cited cases the evidence of the property owner could support a finding of affirmative conduct on the part of the condemning authority prior to the institution of condemnation proceedings, tantamount to a de facto or constructive taking.

Bancroft asks for interest on the jury award of $23,500 from 1965. We note that on December 13, 1968 plaintiff was ordered to deposit $19,500 with the clerk of the court. Generally speaking, interest on a jury award for the period pending condemnation is decided on a case-by-case basis in order to fix compensation which is “just.” Housing Authority of Hoboken v. Segal, supra; State v. Nordstrom, 54 N. J. 50, 54 (1969). Bancroft’s pleadings contain no claim for interest, and apparently interest was not sought at the trial level. Nevertheless, under the totality of the circumstances here presented we deem it “just” to allow interest at 6% on the sum of $4,000 (the difference between the amount deposited and the jury verdict) from December 31, 1968, the date of deposit, to September 15, 1970 when the jury returned its verdict.

In view of the foregoing determinations, we find it unnecessary to pass upon plaintiff’s contention that the trial court committed plain error in the submission of the interrogatory to the jury. See, however, State v. Macon, 57 N. J. 325, 333 (1971).

The judgment below is reversed as to the allowance of Bancroft’s claim for an abatement of the taxes, and modified so as to include an interest allowance to the extent indicated.


author: Lynch, J. A. D.

text:
    VAN REALTY, INC., A CORPORATION OF THE STATE OF NEW JERSEY, PETITIONER-APPELLANT, v. CITY OF PASSAIC, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, RESPONDENT, AND DIVISION OF TAX APPEALS, DEPARTMENT OF TREASURY, STATE OF NEW JERSEY, RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Submitted November 29, 1971
    Decided December 14, 1971.

      Before Judges Collester, Mintz and Lynch.

      Mr. Theodore A. Lobsenz for appellant.

      Mr. Otto F. BlazseJc submitted a statement in lieu of brief for respondent City of Passaic.

      Mr. Herbert K. Glickman, Deputy Attorney General, submitted a statement in lieu of brief for respondent Division of Tax Appeals (Mr. George F. Kugler, Jr., Attorney General of the State of New Jersey, attorney).
   The opinion of the court was delivered by

Lynch, J. A. D.

These are two appeals, submitted together, from judgments of the Division of Tax Appeals concerning assessments for the year 1969 on two separate properties owned by the taxpayer Van Realty, Inc. (Van).

Docket A-1329-70 concerns the land and a 35-family “coldwater” tenement located at 89-91-93 Fourth Street, Passaic, New Jersey (Fourth St. property). Docket A-1328-70 Involves the land and three buildings (two 2-family and a 5-family tenement) located at 49-51 Quincy Street, Passaic (Quincy St. property).

In each case the Division of Tax Appeals affirmed the county board assessment of the respective properties as follows:

Land Bldg. Total

Fourth St. Property $8,050 $87,950 $96,000

Quincy St. property 5,900 27,200 33,100

In each case the Division applied the 85% ratio to true value which is eoncededly applicable in Passaic. Van appeals from the judgment in both cases.

In each ease the only witnesses were Theodore A. Lobsenz, a real estate broker and attorney for Van, and Albert Galik, a broker, and also the city assessor for Passaic.

Van’s first argument is the same on both appeals: “The Division erred in not giving full weight to the testimony of the taxpayer’s expert; * * Appellant’s burden here is a heavy one.

Ordinarily, the weight to be accorded expert testimony is a matter left to the reasonable judgment of the Division and its conclusions as to valuation will not be disturbed when found to be supported by substantial evidence. [In re Appeal of the City of East Orange, 103 N. J. Super. 109, 113 (App. Div. 1968)]

The weight to be accorded the respective experts for the taxpayer and the city is clearly for the Division and not for this court.

Van’s second argument, common to both cases, is that “PTeither the Division nor the Municipality may substitute taxes as a per centage [sic] of gross rent for a finding of true value.” The point is obscure. In any event, there is nothing in the record to support the assertion.

As to the Fourth Street property, Van argues that the Division erred in “using as a comparable sale a building sold 2% years” before October 1, 1968, the assessment date here involved. The sale was not too remote and its weight was for the trier of fact. We find no error in its “use” here.

We come to the error below which is common to both cases and which dictates remand to the Division, i. e., a lack of adequate “findings of fact” (N. J. S. A. 54:2-16) and expression of the reasoning which, applied to the found facts, led to the conclusion below. In N. J. Bell Tel. Co. v. Communications Workers, etc., 5 N. J. 354 (1950), the court said:

It has been said that it is a fundamental of fair play that an administrative judgment express a reasoned conclusion. * * * A conelusion requires evidence to support it and findings of appropriate definiteness to express it. [at 875]

And the findings must be

* * * sufficiently specific under the circumstances of the particular case to enable the reviewing court to intelligently review an administrative decision and ascertain if the facts upon which the order is based afford a reasonable basis for such order, [at 377]

The reversals here may serve to alert the Division, and all gtiosi-judicial and administrative agencies, to their duty to make adequate findings of fact and to express the reasons for their decisions. There is a compelling need for such bodies to understand what constitutes an adequate finding of fact, the practical reasons why they are mandated, the distinctions between ultimate and basic facts, and the necessity that the findings have evidential support. It is equally necessary that such agencies understand why their reasons must be adequately expressed. See particularly, Davis, Administrative Law Treatise (1958), § 16.01 et seq. at 435— 490, and 2 Cooper, State Administrative Law (1965), at 472-478. For New Jersey guidelines, see In re Erie Railroad System, 19 N. J. 110 (1955); D., L. & W. R. Co. v. Hoboken, 10 N. J. 418 (1952); In re Kresge-Newark, Inc., 30 N. J. Super. 489 (App. Div. 1954), and Samuel Hird & Sons, Inc. v. Garfield, 87 N. J. Super. 65 (App. Div. 1965).

We apply these principles to the decisions below. As to the Fourth Street property the Division, in discussing the “income” approach, merely recited the opinions of the respective experts with respect to the effective gross rental, vacancy factor and allowable expenses. The Division made no finding of its own in these respects, nor did it find the “effective net income” or the proper capitalization rate. While the decision speaks of “corrections” thereto, it does not state what they were. Nor did the Division express its reasoning applied to said facts.

While the Division held that the assessment of $96,000 is “fair,” it utterly abdicated its function to find “true value.” If it had found specific facts and expressed its reasoning, the result might well have been a true value different from that supporting the assessment.

As to the Quincy Street property, we again find inadequate “findings of fact” and reasoning.

At the hearing the appraisal of Van’s expert described the land as being “50 x 104.” The City’s expert testified: “There was eighty feet of land all [sic] together that I priced at $100 a foot, which gave me $8,000 for the valuation * * The “Revised Opinion” of the Division said, at one point: “The premises consists of a lot 50 x 104, although there is evidence by Mr. Galik, the assessor, that the lot is 80 feet. This was not contradicted.” At another point the opinion reads: “Mr. Lobsenz gave no evidence as to the value of the land. Mr. Galik set up $8,000 as the value of the land, being 80 feet at $100 per front foot. There is some doubt as to whether these were 50 or 80 front feet.”

Thereupon the judge concluded that Van had “failed to overcome the presumption of correctness of the County Board” judgment as to land, and affirmed the land assessment of $5,900.

The Division was in error for several reasons: Pirst, the so-called “presumption” in favor of the county board’s action “[has] no artificial probative force once substantial evidence to the contrary [is] adduced.” Samuel Hird & Sons, Inc. v. Garfield, supra, 87 N. J. Super. at 74-75. There was such evidence here.

Once the “presumption” is met it was the duty of the Division to appraise the testimony and make findings of fact. Samuel Hird & Sons, Inc. v. Garfield, supra, at 75, and other authorities cited above. The Division made no findings of fact as to whether the land had 50 or 80 front feet. If it found it was 50 feet, and if it accepted the assessor’s $100 per front foot and applied the 85% ratio, the assessment would be $4,250.

The Division’s “findings” are likewise inadequate in other respects. The decision speaks of “usual capitalization rates” and “the expenses ordinarily used.” There is no underlying factual finding for those characterizations. And there is the same lack of those findings which are necessary in the economic approach as were missing in the decision on the Eourth Street property (see supra). There is an utter lack of expressed reasoning as to how “the income approach would show the value of the improvements at about *$32,000,” as “found” by the Division.

The judgments in both cases are reversed and remanded to the Division to make adequate findings of fact in accordance with the views herein expressed. The supplemental determinations called for here are to be filed with this court within 30 days from the date of this opinion. We retain jurisdiction.

       We note, with considerable dismay, that the representative of the City of Passaic failed to argue on its behalf in these appeals. He simply filed a “Statement in lieu of brief,” wherein we are advised that the City of Passaic relies “on the statement of facts and exhibits submitted by the petitioner-appellant Van Realty, Inc., a New Jersey corporation, and especially on the revised opinion of * * [the] Judge of the Division of Tax Appeals.” We deem such representation to be inadequate and of no assistance to the court in the resolution of the issues herein. Such representation is disapproved.


author: Lewis, P. J. A. D.

text:
    M. A. STEPHEN CONSTRUCTION CO., INC., A CORPORATION OF THE STATE OF NEW JERSEY, AND SARK KAVOOKJIAN, PLAINTIFFS-APPELLANTS, v. BOROUGH OF RUMSON, A MUNICIPAL CORPORATION OF THE COUNTY OF MONMOUTH, STATE OF NEW JERSEY, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued October 27, 1971
    Decided December 16, 1971.

      Before Judges Lewis, Kolovsky and Halpern.

      Mr. Frank A. Palmieri argued the cause for appellants.

      Mr. William B. Blair, Jr. argued the cause for respondent (Messrs. Parsons, Gamona, Blair & Warren, attorneys).
   The opinion of the court was delivered by

Lewis, P. J. A. D.

Plaintiffs M. A. Stephen Construction Co., Inc. (Stephen Co.) and Sark Kavookjian, a borough taxpayer, appeal from a summary judgment of the Law Division entered on January 5, 1971 in favor of defendant Borough of Bumson (Bumson or municipality) which dismissed their complaint in lieu of prerogative writs and vacated the restraints imposed by a consent order of this court on December 14, 1970.

The critical issues posited on appeal are: (1) whether a municipality that advertises for public work may reserve the right to reject any and all bids, (2) if it may and does, whether the exercise of that reserved right by Bumson in the instant case was valid, and (3) whether, in the circumstances, summary judgment in favor of either party was appropriate. Before approaching these questions, a summary of the relevant facts and circumstances, as revealed by the record, is essential.

In early October 1970 Bumson advertised for bids on proposed contracts for sewer installations, expressly reserving to itself, in the notice and instructions to bidders, the right to reject all bids. On October 22 the municipality opened the sealed proposals, all of which were accompanied by appropriate bid bonds and certified cheeks, and the bid of Stephen Co. of $1,362,534 on Sewer System Contract No. 1 (North Central Sewer) was the lowest of the six submitted and it was substantially lower than the cost estimate of Rumson’s consulting engineers.

On December 7 Stephen Co. received a letter dated December 3 from Rumson advising it that all bids on the contract in question, together with Contract No. 5, were rejected and that a rebidding would take place on December 15, 1970 on these two contracts. No reasons for rejection were stated in the letter. The prompt efforts of Stephen Co. to obtain a copy of the resolution or abstract of the minutes of the governing body, with respect to its action on November 25 authorizing the letter, were unsuccessful.

Although Contract No. 5 is not directly involved in the instant litigation, it should be noted that the low bidder on that contract was Nero-Villa, which submitted an exceptionally low bid. The municipality had apparently received before its November meeting a communication from Nero-Villa indicating that it would not accept an award of the contract because the municipality had failed to give it proper notice of changes in the specifications.

It appears that Rumson rejected the bids on the recommendation of its engineers, who, by letter of November 23, indicated that they, made inquiry of three references submitted by Stephen Co. and “[t]he consensus was that the low bidder [Stephen Co.] has good construction equipment and that he can install sewer pipe satisfactorily if careful and strict administration of the contract documents is imposed.” The letter then proceeded to make reference to derogatory reports as to the contractor’s “restoration” and “clean-up” work. In effect the consulting engineers concluded that Stephen Co. might not be a satisfactory contractor and that the borough should proceed forthwith to readvertise for Contract 1 and Contract 5 separately or in combination with each other.

Plaintiffs’ complaint and order to show cause were filed December 11, 1970 and their application for an order restraining the municipality from proceeding with its proposed rebidding was denied. This court was then presented with an application for leave to appeal from the interlocutory order and on December 14 a consent order was entered permitting the acceptance and opening of new bids on December 15 for Sewer System Contracts 1 and 5 with a direction that the same be impounded and that no contracts be awarded until further order of the Law Division. On December 23 the trial court heard arguments on plaintiffs’ order to show cause, a motion by defendant for summary judgment and a cross-motion by plaintiffs for a similar judgment, and on January 4, 1971 entered judgment in defendant’s favor which is the subject of this appeal, notice of which was filed on January 13.

In the meantime, the municipality received new bids on December 15; Stephen Co. did not participate in the bidding. The lowest bids then submitted on Contracts 1 and 5 separately and in combination were higher than the lowest bids that had been received on October 22. The new low bid of Cruz Construction Co. of $1,398,340 on Contract No. 1 was accepted and a contract was awarded to that company on January 14, 1971.

The following day plaintiffs filed a notice that they “shall apply before the Appellate Division of this Court * * * for a temporary Order restraining and enjoining [Eumson] from awarding any contract for Sewer System Contract No. 1” pending the instant appeal. This application was not perfected nor moved for consideration by this Court until oral argument on the appeal. At that time we were advised by counsel for the municipality that Cruz Construction Co. had proceeded with, and substantially completed, the work under Contract No. 1. We turn now to the legal issues.

N. J. S. A. 40:50-1 provides that “No municipality shall enter into any contract for the doing of any work * * * where the sum to be expended exceeds the sum of $2,500.00,” unless there is public advertising and bidding therefor, and a municipality “shall award the contract to the lowest responsible bidder * * *.” The original enactment of the Legislature dealing with bidding as a prerequisite to certain pub-lie expenditures, L. 1912, c. 342, pp. 593-594, contained the provision, “provided, however, that said public body may, nevertheless, reject any and all bids.” That act was quoted in Armitage v. Newark, 86 N. J. L. 5, 7 (Sup. Ct. 1914). In 1917 the Legislature adopted “An Act concerning municipalities” which incorporated the substance of the prior bidding statute but omitted the provisory language just quoted. See L. 1917, c. 152, art. XI, Contracts, p. 347. All amendments to date have likewise eliminated that language.

Plaintiffs, in essence, contend that the deletion of the statutory grant of power to reject all bids requires a municipality to award a contract to the lowest responsible bidder unless the bid exceeded the cost estimate for the work to be done or the project was abandoned or substantially changed in design. Defendant, on the other hand, argues that notwithstanding the absence of any express statutory authority, a municipality has the inherent contractual power to reserve the right to reject all bids and, under such a reservation, it may do so without offering any reason.

Eeither of the asserted positions is tenable. Judicial acceptance of either of these extremes would be inimical to the best public interest and would be potentially destructive of a public bidding system that is intended to reduce to the irreducible minimum all elements of unfairness or impropriety.

It is generally recognized that solicitation through public advertising of competitive bidding is a stable principle of public policy, 10 McQuillin, Municipal Corporations (3d ed. 1966 revision), § 29.29, and as observed in Hillside Tp. v. Sternin, 25 N. J. 317 (1957) :

* * * The purpose is to secure competition and to guard against favoritism, improvidence, extravagance and corruption. Statutes directed toward these ends are for the benefit of the taxpayers and not the bidders; they should be construed with sole reference to the public good; and they should be rigidly adhered to by the courts, [at 322; citations omitted]

Any absolute rule restricting a municipality from rejecting all bids would pave the way for possible corruption and price fixing among contractors.

In Cardell, Inc. v. Woodbridge Tp., 115 N. J. Super. 442 (App. Div. July 19, 1971), the township, despite its engineer’s recommendation that the low bids of Oardell be accepted, refused all bids and ordered readvertisement of the contracts. No reason was given for the rejection. The trial court found that the township had wrongfully rejected Car-dell’s bids on two separate projects. In our opinion of affirmance we recognized (at 450) that the unbridled power to reject bids, even when this right is reserved in the invitation for bidding, “would violate our public policy, contravene our Legislature’s intention in enacting the competitive bidding statute and, in fact, afford a means by which The statute can be evaded under color of the rejection “of any and all bids,” ’ ” citing Armitage v. Newark, supra. Wo then stated:

We do not imply that a municipal governing body is without power to reject all bids under proper circumstances. No municipal governing body could effectively engage in competitive bidding without such power. At the very least, the existence of the possibility of total rejection of bids serves as a strong inducement to bidders to keep their bids as low as circumstances permit. Suffice it to say that when a municipal governing body concludes in good faith that the purposes of the public bidding statute are being violated, it may reject all bids submitted and in its discretion order a readvertising of the contract, [at 450-451]

We reasoned in that opinion:

Assuming the existence of the power to reject bids, the logical inquiry is to ask how such power must be exercised. Defendant suggests that arbitrariness and capriciousness is immaterial provided that the power is exercised in good faith. Although there is support for this theory in other jurisdictions — see the discussion and cases cited in Annotation, “Right of public authorities to reject all bids for public work or contract,” 31 A. L. R. 2d 469 (1953) ■— our courts do not subscribe to that view. On the contrary, they have more than once criticized the arbitrary rejection of bids, [at 449]

Applying the rationale of Cardell, Inc. v. Woodbridge Tp., supra, to the instant matter we hold that (1) the mandate of the statute to award the contract to the lowest responsible bidder could not be evaded by arbitrary or unreasonable action on the part of Rumson, (2) it was legally proper for Rumson to reserve unto itself the right to reject all bids, and (3) in the exercise of that right Rumson could not act arbitrarily and was obliged to act in good faith and for sound public reasons.

The trial judge, in dismissing plaintiffs’ complaint, invited “somebody to appeal.” Although he did not have the benefit of our subsequent decision in Cardell, supra, he was mindful of the difficult problems confronting the Legislature and the judiciary in these treacherous legal waters in guiding the public interest between the Scylla of having contractors band together and submit high bids and the Charybdis of political fraud or improper favoritism. He stated, however, “I don’t know whether they [the municipality] did act in good faith or whether they didn’t * * * I am not satisfied that it was bad faith here.”

We have examined the November 25 resolution of the governing body rejecting all bids and find no statement therein of its reasons for not accepting the low bid of Stephen Co. and, as noted above, no reasons were mentioned in the rejection letter of December 3 to that company. Indeed, it can be inferred from that communication that Stephen Co. was considered to be qualified and had been invited to participate in the new bidding that was scheduled for December 15.

The municipality apparently acted solely upon the recommendation of its consulting engineers. Stephen Co. was not afforded an opportunity to be heard on the conclusory statements in their report or to answer any indications therein that might bring into question its responsibility as the successful low bidder. That specific reasons motivated the municipality, other than the unilateral report of its consultants, to reject all bids are yet to be ascertained. A low bidder is entitled to be heard by the public authority before his bid is rejected. See Trap Rock Industries, Inc. v. Kohl, 59 N. J. 471, 284 A. 2d 161 (1971) and the authorities therein cited.

Stephen Co. sharply controverted all statements and innuendoes that reflected adversely on its responsibility as the successful low bidder. We are satisfied that there were genuine issues of fact to be resolved by the trial court, that the case was not ripe for a summary judgment, and that the matter should have proceeded to a plenary hearing.

The pending motion, which for all practical purposes is now moot, is dismissed without prejudice. We do not pass upon what legal remedies, if any, might be available to plaintiffs or either of them in the event, after a full hearing, it should be determined that the municipality acted wrongfully. Compare Cardell, Inc. v. Woodbridge Tp., supra, with 10 McQuillin, Municipal Corporations (3d ed. 1966 revision), § 29.86.

Reversed and remanded for trial.