author: Per Curiam. Halpern, J. A. D.

text:
    HOPEWELL BAPTIST CHURCH OF NEWARK, NEW JERSEY, ETC., PLAINTIFF-RESPONDENT, v. CYRUS GARY, ET AL., ETC., DEFENDANTS-APPELLANTS.
    Superior Court of New Jersey Appellate Division
    Argued May 18, 1970
    Decided June 22, 1970.

      Before Judges Sullivan, Carton and Halpern.

      Mr. Irving I. Vogelman argued the cause for appellants (Mr. Raymond A. Brown, attorney).

      Mr. Lance A. Posner argued the cause for respondent (Mr. Burton L. Bichler, of counsel; Messrs. Brack, Eichler, Rosenberg & Silver, attorneys).
   Per Curiam.

Plaintiff church brought this declaratory judgment action in the Chancery Division to determine the validity of a membership vote to sell its present church structure to the Newark Housing Authority and to purchase with the sum realized another church property. Defendants, who are certain named officials of the church, individually and as representatives of the class of those church members voting against the proposed sale and purchase,, appeal from the judgment of the Chancery Division declaring the vote to have been valid.

Defendants challenge the findings and conclusions of the trial judge that proper notice was given to the members of the church of the meeting at which the crucial vote was taken and the determination that minors were properly permitted to vote at that meeting.

It was undisputed that it was announced in the official church bulletin for three weeks beginning October 25, 1968 that there would be a special meeting of all members of the church after the Sunday church service on November 10 to vote on the issue of the sale of the church and the purchase of the other building. Nor was it disputed that the church clerk, during the Sunday church services following each of the church bulletin publications, read to the congregation the list of announcements in the bulletin, including that pertaining to the November 10 meeting. It was also undisputed that these bulletins were distributed to each member before Sunday service and additional copies made available in the vestibule.

The controversy, so far as notice was concerned, dealt with whether one of these bulletins was posted on the bulletin board in the church vestibule during the period from October 27 to November 10. The evidence on this issue was in sharp dispute. Plaintiff produced eminent witnesses who testified to such posting. Equally eminent members denied that such notice was placed on the bulletin board or that they had seen the posted notice. The trial judge, although recognizing the impressive testimony on both sides in this conflict of testimony, found that the persuasive weight lay in favor of the contention that the leaflet containing the notice was posted. Our examination of the record satisfies us that there was substantial evidence in the record to support this finding. That the trial judge found the scales tipped only slightly in favor of plaintiff does not affect that conclusion.

The other factual issue resolved in favor of plaintiff’s contention concerned the right of the minors present in the church to vote. The final count on the election was 136 in favor of the proposal and 104 opposed. Defendants argue that a new election should be ordered because a number of minors present were improp'erly permitted to vote. It seems to be settled by customary church practice in the Baptist Church hat all members can vote on any church matter, whether or mot they are under age, unless there is a local congregation rule or definite custom to the contrary. Randolph v. Mt Zion Baptist Church, 139 N. J. Eq. 605 (Ch. 1947). The trial judge resolved the conflicting evidence on this factual issue by finding that there was no local rule or custom against minors voting on such church matters as long as they were members oE the church. There appears to be no dispute that those who voted were actually admitted to membership under the rules of the church and were on the membership rolls. Here again, the issue to be resolved was one of credibility and we find substantial credible evidence in the record to support the judge’s determination that the membership’s authorizing the challenged sale and purchase by the trustees of plaintiff church was proper.

Under the circumstances, we find no basis for intruding into the internal affairs of the church by interfering with the voting process adopted by the membership and traditionally used in the past. Such interference would be particularly unwarranted in view of the trial judge’s further comment that even if certain minors cast votes improperly, these votes were not sufficient to change the result. Additionally, the proofs were insufficient to demonstrate that any other minors cast votes winch would have affected tile result.

Our dissenting colleague suggests that all votes of duly enrolled members of the church who have not attained the age of 21 years must be invalid because of the public policy prohibiting persons under that age from making conveyances of real property. This argument dictating that the 21-year-old age limitation be applied uniformly to all real estate transactions regardless of the parties involved overlooks the competing public policy, witnessed by a long-established legislative scheme (Title 16), of permitting voluntary religious associations wide latitude in governing their affairs, both spiritual and temporal. The statutory format guiding Baptist Church procedures indicates that the Legislature, the governmental branch best equipped to discern and enunciate public policy, has refrained from injecting a 2.1-year-old age limitation into that church’s affairs, including those involving real estate transactions.

N. J. S. A. 16:2-11 mandates that Baptist churches be regulated by the general provisions governing religious societies (N. J. S. A. 16:1—1 et seq.) only where the special provisions of N. J. S. A. 16:2-1 el seq. are not controlling. N. J. S. A. 16:2-l authorizes a “majority vote of the members present” to incorporate a Baptist Church, whereas N. J. S. A. 16:1-1 established a “21 years of age” qualification on the members of other religious societies voting in favor of incorporation. N. J. S. A. 16:1-9, repealed by L. 1955, c. 124, had specifically authorized members “in good, full and regular standing” of the “denomination known as Baptist” to vote in an election for trustees, whereas tnat same section imposed a 21-year-old age limitation on other religious societies. N. J. S. A. 16:1-13.3, which supersedes N. J. S. A. 16:1-9, evidences increasing legislative deference to the internal affairs of all religious societies by abolishing the age specification formerly imposed and providing:

Any religious society or congregation recognizing no superior judicatory may provide in its by-laws the qualifications for its trustees and officers and may further provide therein the qualifications of members entitled to vote for trustees and officers. * * *

It is the trustees of religious societies, including Baptist churches, who are empowered to convey church property after authorization by the membership. Compare N. J. S. A. 16:1-6 with N. J. S. A. 16:2-8. The manner in which a particular religious society directs its trustees to dispose of trust property depends upon the established rules and regulations of that society. Page v. Asbury Methodist Episcopal Church, 78 N. J. Eq. 114, 116 (Ch. 1910). As noted earlier, the Baptist Church allows all of its members to vote, regardless of age, subject to contrary local custom. Randolph v. Mt. Zion Baptist Church, supra.

Besides a clear legislative scheme evidencing deference to the Baptist Church’s governance of its own affairs, the policy fostering a 21-years of age limitation on a party disposing of realty has little relevance to real estate conveyances by large religious associations. It is because minors lack mature judgment that the State provides special protection by establishing an age limitation on their capacity to transfer realty. The need for such protection is lessened greatly when minors, constituting a fraction of the religious society’s membership and guided by the wisdom of their elders, are permitted limited participation in affairs concerning realty. Additionally, the trustee system serves as a buffer against unwise decisions attributable to the immaturity and inexperience of minors.

Furthermore, we consider it incongruous to make a distinction, as our colleague does, solely because the church membership is engaged in a real estate transaction. Religious societies are engaged in a wide range of other activities whose importance to the individual member may be as great, if not greater. Indeed, as our Supreme Court recently recognized in Baugh v. Thomas, 56 N. J. 203 (decided June 1, 1970), expulsion from a church “can constitute a serious emotional deprivation which, when compared to some losses of property or contract rights, can be far more damaging to an individual.”

The hypothetical hazards resulting from the continued recognition of a religious organization’s ability to determine its voting membership is outweighed by time-honored experience which has demonstrated the competence of such societies in handling their internal affairs. Neither the statutes nor the ease law impose a 21-year-old age limitation on either the electorate who choose church trustees and authorize their acts or on the trustees themselves who are empowered to convey church realty. Sound policy dictates that this court refrain from establishing such a limitation by judicial fiat.

Since the decision below turned essentially on questions of fact, the resolution of which was properly a function of the trial court, and there was sufficient evidence in the record to support its determination, the judgment is affirmed.

Halpern, J. A. D.

(dissenting). What the late Judge Jayne said in Mathis v. Holmes, 134 N. J. Eq. 186 (Ch. 1943), bears repeating today: “It is indeed lamentable when those united in their devotion to God, discordantly attempt to sever their accustomed unity in the pursuit of religious worship.”

I am in accord with the conclusions reached by the majority except I disagree that the voting by the children on the sale of church property was permissible, and did not taint the vote.

Certain facts in the record should be emphasized. While plaintiff was probably incorporated as a church, its certificate of incorporation is not part of the record—so that we do not know whether it was incorporated under N. J. S. A. 16:1-1 et seq. or N. J. S. A. 16:2-1 et seq., or what special provisions are contained therein, if any, concerning eligibility for membership and voting privileges. See N. J. S. A. 16:2-13.

Admittedly, plaintiff has no constitution or bylaws. The only qualifications for membership and the right to vote are derived from accepted custom practiced by it, or as set forth in the writings of Rev. Edward S. Hiscox wherein the author has presumably recorded Baptist traditions and customs. Rev. James Y. Mel ver, called as an expert witness by plaintiff, recognized Hiscox as such authority but not with respect to the issue of children’s voting. It was his opinion that each Baptist church is independent and autonomous, and in the absence of specific provisions to the contrary each member is entitled to an equal vote on all subjects. This is in accord with the holding in many cases—Randolph v. Mt. Zion Baptist Church, 139 N. J. Eq. 605 (Ch. 1947); Geter v. Walters, 5 N. J. Super. 10 (App. Div. 1949); Harrison v. Floyd, 26 N. J. Super. 333 (Ch. 1953); Holiman v. Dovers, 236 Ark. 211, 460, 366 S. W. 2d 197, supp. op. 366 S. W. 2d 203 (Ark. Sup. Ct. 1963); Annotation 15 A. L. R. 3d 297.

Rev. Melver further testified that one becomes a member when (a) recommended by a deacon for membership, (b) is baptized, and (c) received in the hand of fellowship. While he did not know the practicing custom in the plaintiff church, it was conceivable that a child three years of age could be eligible for membership. Plaintiff’s total membership was approximately 900, of which between 500 and 600 were under 21.

Turning to the meeting of November 10, 1968, the record discloses that the decision to vote openly (by standing) was determined by a vote of 118 to 112. No one objected to children voting. The vote to sell the church property for $327,000 carried by a 136 to 104 vote. The proofs were vague as to the ages or the number of children who voted. A careful analysis of the proofs on this subject reveals that the number of children who voted could have been as few as 15 and as many as 60; the ages of the children voting ranged from seven years upward. I must disagree with the passing comment by the trial judge, and agreed with by the majority, that the votes cast by the children were insufficient to change the result. It is impossible to determine from the record how many children voted.

The issue is whether children under 21, even though members of the church, had the legal right to vote to sell church property. It is the public policy in New Jersey that persons under 21 years of age cannot effectively convey their interest in real estate, nor can they enter into mutually binding agreements (with some exceptions not relevant here). There is no logic in permitting an avoidance of such public policy by determining that anyone under 21, who is a member of a Baptist church, may authorize the trustees to do that which he may not do. If the Legislature intended to place Baptist churches in a special category to enable persons under 21 to vote on sale of church real property, it would have so stated in simple terms and not leave it to inference; e. g., an exception was created by N. J. S. A. 37:2-30, effective July 5, 1967, permitting an infant spouse to join the adult spouse in realty conveyances. See also N. J. S. A. 14A:5-22, dealing with infants under the General Corporation Act.

Considering the statutes dealing with religious societies as an integrated whole to determine the Legislature’s intent, the conclusion is inescapable that it never intended to remove the restrictions placed on conveyances by persons under 31. N. J. S. A. 16:1—1, dealing with religious societies in general, authorizes such societies to be incorporated by members over 31 who regularly contribute to its support, etc. They are permitted to adopt bylaws and rules consistent with law, for the regulation and management of their affairs, properties and institutions (N. J. S. A. 16:1-4(e)). The trustees, if authorized by a majority of the members present, on notice, may sell church properties (N. J. S. A. 16:1-6). N. J. S. A. 16:3-1 et seq., pertains specifically to Baptist churches, and by cross reference (N. J. S. A. 16:3-3 and 16:3-11), for our purposes, have the same powers given all religious societies under N. J. S. A. 16:1-1 et seq.

This public policy of an infant’s incapacity to effectively contract or convey property finds expression in other statutory enactments. For example, procedure has been provided for the sale of infants’ lands (N. J. S. A. 3A:16-4); generally, they are incompetent to make a will (N. J. S. A. 3A:3-1); persons seeking to incorporate under the General Corporation Act must be over 31 (N. J. S. A. 14A:3-6) and must be over 31 to be a director (N. J. S. A. 14A:6-1 who are the ones who may convey corporate property).

Considering the statutes relating to religious societies in a common-sense way, giving the language used its everyday commonly understood meaning, results in the conclusion that only members in good standing over 31 were eligible to vote on the sale of plaintiff’s property. To permit children of tender years to have an equal voting voice with adults would be violative of the legislative intent and public policy.

I am fully aware that courts are reluctant to interfere with the propriety or regularity of the ecclesiastical or spiritual affairs of a religious society; however, they will not hesitate to do so where public policy, temporal or property rights are involved. Moorman v. Goodman, 59 N. J. Super. 181 (App. Div. 1960); Baugh v. Thomas, 56 N. J. 203 (1970). In the instant case, the right of children to vote on the sale oí church property does not affect the ecclesiastical or spiritual affairs of the church, but is concerned with its fiscal affairs and policies. In Randolph, supra, principally relied on by the court below, and the majority, the court set aside the membership vote for due process reasons — its statement that children who are members of a Baptist church have equal voting rights with adults was mere dicta.

Eor the reasons expressed, I would reverse and remand the matter with instructions that a new vote be taken of members over 21, on appropriate notice to all members.


source: Caselaw Access Project

author: Pee Curiam.

license: Public Domain

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. HARRY B. FORD, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued June 22, 1970
    Decided July 4, 1970.

      Before Judges Conford, Collester and Kolovsky.

      Mr. Norman Telsey (assigned counsel) argued the cause for appellant.

      Mr. Gerard J. Di Nicola, Salem County Prosecutor, argued the cause for respondent (Mr. Willard Bernstein, Assistant Prosecutor, on the brief).
   Pee Curiam.

Defendant was convicted of breaking and

entering a tractor and trailer with intent to steal and of stealing three cases of apples of a value of $24.

On this appeal defendant urges error in the handling by the trial judge of the issue whether defendant had been afforded the warnings called for under Miranda v. Arizona, 384 U. S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966) by the arresting police officer before defendant gave him an incriminatory statement.

There was a sharp issue of fact whether the necessary warnings were given. Defendant and two supporting witnesses testified they were not; the officer, that they were. After a preliminary hearing out of the presence of the jury the judge found the statements were admissible “by the greater weight of the believable testimony.” He informed the jury he had found the testimony as to the statements admissible but that the jury was “not to assume from that that I have decided it is a voluntary statement.” It was, he said, for the jury to decide whether it was a voluntary statement or whether defendant was “advised as to his rights.” If found to be “voluntary” the statement could be accorded such consideration as the jury wished to give it. The court denied a request of counsel to inform the jury what the Miranda warnings were.

In his charge to the jury at the end of the trial the judge said nothing about the matter as to the giving of the warnings, said again substantially what is set forth above as to his determination as to admissibility of the statement, and concluded the subject by informing the jury that if they found the statement involuntary they were to disregard it completely.

The court’s refusal to instruct the jury as to the warnings required under Miranda and that if they found the warnings were not given, to disregard the statement completely, was reversible error. Since the jury had the ultimate responsibility of passing upon whether the warnings were given, see State v. Magee, 52 N. J. 352, 368-369 (1968), cert. den. sub nom. Magee v. New Jersey, 393 U. S. 1097, 89 S. Ct. 891, 21 L. Ed. 2d 789 (1969), they as lay people had to be told what those requisite warnings are.

Moreover, the court erred in applying the standard of preponderance of the evidence in respect of its own preliminary determination. While there has been some doubt on the point, State v. Yough, 49 N. J. 587, 597-600 (1967), the last word on the subject by the Supreme Court is that the judge should employ the standard of “beyond a reasonable doubt,” Id., at 601; and of course the jury should be instructed to employ the same criterion where the issues of voluntariness and Miranda warnings are passed along to it.

Defendant further contends that the judge here failed to make the necessary preliminary determination of voluntariness. We think it clear that he did; it is preferable practice, however, for the judge not to allude to the matter of voluntariness at all, as here he did, when informing the jury that he has ruled that the statement is admissible. Cf. State v. Wolf, 44 N. J. 176, 194 (1965).

We do not discuss the criticism by defendant of certain remarks in summation by the prosecutor. Both the remarks by the prosecutor and those of defendant’s counsel, to which the former were retaliatory, were improper, and should not be repeated at the new trial.

A further criticism by defendant of certain comments on the evidence by the court in its charge to the jury is without merit.

We further point out on our own motion that the court should simplify its charge on aiding and abetting at the retrial. The charge here given, particularly as amplified in response to a question from the jury, was confusing, and could have given the jury the erroneous impression that defendant’s own testimony afforded sufficient basis for conviction for breaking and entering and larceny. What defendant here testified to would not of itself establish aiding and abetting.

Reversed.


author: Carton, J. A. D.

text:
    ELECTRONIC ASSOCIATES, INC., RESPONDENT-APPELLANT, v. SUSAN J. HEISINGER, PETITIONER-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued May 25, 1970
    Decided July 2, 1970.

      Before Judges Sullivan, Carton and Halpern.

      Mr. Kester R. Pierson argued the cause for appellant (Messrs. Mason, Griffin & Moore, attorneys).

      Mr. Michael D. Schottland argued the cause for respondent (Messrs. Chamlin and Schottland, attorneys).
   The opinion of the court was delivered by

Carton, J. A. D.

In this workmen’s compensation case petitioner contended she incurred an occupational disease known as carpal tunnel syndrome. The judge of compensation dismissed her petition on the ground that she failed to give her employer, Electronic Associates, Inc., notice that she had contracted such occupational disease as required by statute. The county judge reversed the Division and remanded the matter to fix the amount of the disability award.

Electronic assails the judgment entered after the award on remand, principally contending that the County Court erred in holding that the notice requirement was satisfied. The statute provides that unless the employer has actual knowledge the employee has contracted a compensable occupational disease or unless the employee gives the employer written notice within 90 days after he knew or ought to have known of the nature of his disability and its relationship to his employment, the employee shall have no right to recover disability benefits. N. J. S. A. 34:15-33. There is no claim here that Electronic had actual knowledge.

Petitioner began to work for Electronic July 18, 1966 and worked for about a year. Her work required the repeated twisting and turning of her wrists, manually placing individual wires in printed circuit banks and “harness” which were being assembled. She was laid off from July 14 to October 16, 1967. On the following November 1 she quit because of pregnancy. On January 10, 1968 she went to a hospital clinic because of pains in her right wrist. There an operation described as the release of a carpal tunnel was performed. In May-June 1968 when she experienced similar symptoms in her left hand, she went again to the hospital where an operation was performed on her left wrist. On September 12 of that year petitioner consulted counsel, who immediately wrote a letter to Electronic advising that they represented her and were bringing a workmen’s compensation suit in her behalf.

It was stipulated that petitioner’s disability was work-connected. The employer argues, however, that petitioner is barred from recovery because she knew or ought to have known of the nature of her disability and its relation to her employment when she had the second operation on June 6, 1968. If Electronic’s contention is correct, the notice given on September 12 was a few days outside the 90-day period and she is barred from recovery. The basis of Electronic’s contention is certain testimony of petitioner given in response to an inquiry from the trial court as to when she came to the decision that her condition came from her employment:

I always thought when I had my first operation [January 10, 1968]. I thought that’s when maybe it was from, but I couldn’t be sure until I went back for my second, because I didn’t lift, I didn’t do any heavy work.

The trial judge found that although petitioner may have been aware of her disability, she was unaware of its relation to her employment until she consulted counsel and consequently that the notice was sufficient to comply with the statute.

We conclude that the evidence in the record warranted the trial court’s determination that she did not know and could not reasonably be expected to know the relation of her disability to her employment. See Bucuk v. Edward A. Zusi Brass Foundry, 49 N. J. Super. 187, 211 (App. Div.), certif. den. 27 N. J. 398 (1958). In this connection, we note that nothing in the testimony indicates that petitioner’s disability was of such a general occupational character that its prevalence might make the employee apt to realize she had a compensable condition.

In arriving at this conclusion, we are mindful that notice requirements of this kind must be construed and applied in the light of petitioner’s particular background, intelligence, experience, and the character of her disability, and “in the full light of the goals of the humane social legislation of which [they are] part” Panchak v. Simmons Co., 15 N. J. 13, 16 (1954). Nothing in that legislation dictates that, under the circumstances of this case, petitioner should be deprived of the statutory benefits. Particularly is this so because the employer does not dispute that petitioner’s disability is work-connected nor attribute any prejudice to the failure to receive the notice at an earlier date.

The employer is correct, however, in its additional contention that petitioner is not entitled to the temporary disability awarded by the judge of compensation.

A primary purpose of the Workmen’s Compensation Act is to provide a quick, efficient remedy for wage loss and the permanent impairment of physical capacity suffered by a workman because of a work-connected injury. Cureton v. Jome Plumbing & Heating Co., 38 N. J. 326, 331 (1962). Temporary disability benefits within the intendment of workmen’s compensation legislation represent a “partial substitute for loss of current wages.” Ort v. Taylor-Wharton Co., 47 N. J. 198, 208 (1966); see Calabria v. Liberty Mut. Ins. Co., 4 N. J. 64, 68 (1950); Worthington v. Plainfield Bd. of Educ., 23 N. J. Misc. 14, 40 A. 2d 9 (Dept. Labor 1944).

As described by an expert in the field,

* * * Temporary total * * * and temporary partial [disabilities] * * * are ordinarily established by direct evidence of actual wage loss. In the usual industrial injury situation, there is a period of healing and complete wage loss, during which temporary total is payable. This is followed by a recovery or stabilization of the condition, and probably resumption of work * * *. Permanent partial schedule awards, by contrast, are based on medical condition after maximum improvement has been reached, and ignore wage loss entirely * * *.
[ 2 Larson, "Workmen’s Compensation Law, § 57.10, at 4 (1969)]

See Berkowitz, “The Wage-Loss Theory of Evaluating Disability in Workmen’s Compensation,” 82 N. J. L. J. 285 (1959).

Petitioner here is entitled to no award for temporary disability because she suffered no current wage loss as a result of an ailment attributable to her occupation. Eather, her loss of wages was the direct result of the voluntary termination of her employment. The reason for cessation of work was for a cause totally unrelated to her employment, namely, her pregnancy — a condition compensable under another sector of our laws, N. J. S. A. 43:21—29. Since her right to receive wages had ceased long prior to the onset of the debilitating occupational disease, she suffered no wage loss for which temporary disability could serve as a partial substitute. See Ort v. Taylor-Wharton Co., supra. Thus she was entitled to receive the award only for the permanent disability which she suffered and which, consonant with the underlying philosophy of workmen’s .compensation recovery, reflected her physical disability suffered as a result of the occupational disease irrespective of any loss of earning power. Silke v. Walter, 65 N. J. Super. 36 (Cty. Ct. 1960), aff’d 69 N. J. Super. 208 (App. Div. 1961).

We do not construe the concept of temporary disability to include wage loss claims by those who have voluntarily terminated their employment for reasons unrelated to that employment. So to hold would depend upon creating a fictitious wage-earning status for the unemployed workman and run counter to the manifest tenor of N. J. S. A. 34:15-38—the statutory method for calculating the period for which temporary disability benefits shall be awarded.

N. J. S. A. 34:15-38 provides that the terminal date of the temporary disability period is “the first working day that the employee is able to resume work and continue permanently thereat * * The days included within the disability period are reduced by “any days and fraction thereof the employee was able to work during this time * * This phraseology strongly suggests that temporary disability has relevance only in an employment situation wherein the injured workmen’s enjoyment of current wages has been suspended by a work-connected injury.

This interpretation of temporary disability benefits is not only consistent with the beneficent purposes of workmen’s compensation laws but also harmonizes with the comprehensive design of other legislation intended to benefit the labor force. Individuals in situations comparable to that of petitioner are not left without remedy. They are entitled to receive permanent disability awards and, where authorized, medical expenses, N. J. S. A. 34:15-30 to 35, N. J. S. A. 34:15-15. Like petitioner, who chose to retire because of her pregnancy, they would be entitled to temporary disability benefits under N. J. S. A. 43:21-29. Compare Iorio v. Board of Review, 88 N. J. Super. 141 (App. Div. 1965), with New Jersey Bell Tel. Co. v. Board of Review, 78 N. J. Super. 144 (App. Div. 1963), aff’d 41 N. J. 64 (1963). Should such individuals, after the period of temporary disability, make an unsuccessful attempt to resume work, they can, if qualified, obtain unemployment compensation benefits under N. J. S. A. 43:21-1 et seq. Compare Seatrain Lines Inc. v. Medina, 39 N. J. 222 (1963), with Butler v. Bakelite Co., 32 N. J. 154 (1960). The award of temporary disability benefits in this case is unwarranted in light of this interlocking, complementary social legislation.

The judgment of the County Court reversing the Division’s dismissal of the petition is affirmed. The judgment of the Division on remand is modified to eliminate the award for temporary disability benefits.


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

text:
    LAURENCE G. O’CONNOR, PLAINTIFF-RESPONDENT, v. HOWARD S. HARMS, ET AL., DEFENDANTS-APPELLANTS.
    Superior Court of New Jersey Appellate Division
    Argued June 8, 1970
    Decided July 7, 1970.

      Before Judges Kilkenny, Labkeoque and Leonard.

      Mr. Thomas P. Cook argued the cause for appellants (Mr. Robert D. Jordan, on the brief).

      Mr. Harry Green argued the cause for respondent.
   The opinion of the court was delivered by

Kilkenny, P. J. A. D.

The eight individual defendants and the board of education of Central Regional High School District in the County of Ocean (hereinafter “board of education”) appeal from a judgment in favor of plaintiff and against them, based upon a verdict awarding plaintiff (a) $9600 for compensatory damages against the board of education; (b) no compensatory damages against the eight individual defendants, and (c) punitive damages against each of the eight individual defendants for the following respective amounts: (1) Howard S. Harms — $3000; (2) Anthony W. Baymond — $2000; (3) Edwin L. Voll — $2000; (4) David J. Bentz — $3000; (5) Prank Deacon — $2000; (6) Thomas E. Moeller — $2000; (7) Joseph Boyd — $2000, and (8) Thomas A. Peterson, Jr. — $2000.

Defendants’ motion for a new trial was denied.

There is no cross-appeal by plaintiff.

The pretrial order refers to the nature of the action as one for “Malicious interference with plaintiff’s contractual relations and conspiracy.” Plaintiff sought both compensatory and punitive damages against all defendants, including the board of education. While there is reference in paragraph 7 of the pretrial order to “breach of contract” as one of the several issues listed therein, and the order amending item 5 of the pretrial order relating to damages refers to breach of the 1966 — 67 and 1967 — 68 contracts, the trial court ruled as a matter of law that there was no breach of contract involved in this case. Hence, any award by the jury may not be legally justified on the concept of £ibreach of contract.”

Plaintiff’s brief confirms, as he maintains in his point I, “Plaintiff’s action against defendants was for malicious interference with his employment.” A recital of the basic facts will make clear the issues involved.

On August 2, 1966 defendant board of education entered into a written contract with plaintiff whereby it engaged Mm to act as principal of the high school from August 1, 1966 to June 30, 1967, at a salary of $12,000. On April 24, 1967 the board renewed plaintiff’s contract for the period July 1, 1967 to June 30, 1968 at an annual salary of $13,000. Both contracts contained the following provision:

It is hereby agreed by the parties hereto that this contract may at any time be terminated by either party giving to the other sixty days notice in writing of intention to terminate the same, but that in the absence of any provision herein for a definite number of days notice, the contract shall run for the full term named above.

After two attempts by the board to terminate plaintiffs 1967-1968 employment contract under the 60-day provision, each of which ended in a tie vote, the board finally mustered a majority vote of 5-3 at its meeting of June 12, 1967 and rescinded plaintiff’s contract. He was paid for the 60 days of notice required, and accepted the payment, although he asserts he did not receive written notice of the intended termination.

I

As to the Judgment Against the Boakd oe Education

The $9600 compensatory damage award against defendant board of education was evidently arrived at by calculating plaintiff’s loss of salary for the period between termination of his salary by the board and commencement of his new employment in a new school system. This suggests that the jury mistakenly treated the action as one for “breach of contract,” in which that measure of damages would be applicable. But this was not a breach of contract suit. The trial judge expressly ruled that theory out of the case.

The gist of the action was one for tort, and more particularly the tort known as “malicious interference with a contractual relationship.” An essential element of that tort is “malice,” as it is in the case of the tort known as “malicious prosecution.” But a public corporation, such as a city or other public body, by reason of its being an artificial legal entity created by law to perform limited governmental functions, cannot entertain malice, as a public corporation. A public body may be held answerable in some eases for the tortious acts of its officers and employees. But where “malice” is an essential ingredient of the tort, a city or comparable public agency is not vicariously liable for the personal malice of the city’s officers or employees in performing their public duties. Thus, it was held in McIntosh v. City and County of Denver, 98 Colo. 403, 55 P. 2d 1337 (1936), that the city could not be held liable in a malicious prosecution suit, where malice is an essential element, even though the city’s officers may have acted with malice. See, too, Somers Construction Co. v. Board of Education, 198 F. Supp. 732, 738 (D. C. N. J. 1961); 38 Am. Jur., Municipal Corporations, § 619; McQuillin, Municipal Corporations (3d ed.), § 53.62.

We deem that rationale equally true in a suit against a board of education for an alleged malicious interference with a plaintiff’s employment contract. Especially so when the board is merely exercising its right given to it under the contract to terminate it. This situation does not involve a contract between a plaintiff and a third party.

Accordingly, the judgment against defendant board of education is reversed.

II

As to the Judgment Against Defendant Boaed Members

We shall assume that the evidence raised a jury question as to whether the individual board members, who voted to terminate plaintiff’s employment contract under the 60-day provision therein, acted with malice in doing so. The jury’s finding of malice may be inferred from the several awards of punitive damages against the individuals.

The fact remains that the defendant board members, who voted to terminate plaintiff’s employment contract, had a legal right to do so, in the exercise of their legal powers as board members to vote on a board resolution concerning school affairs. In fact, it was their duty as public officials to cast their votes according to the dictates of their individual consciences for what they deemed to be in the public interest.

The members were called -upon to deal with a local school situation which was generating unfavorable newspaper publicity and adversely affecting school morale. Plaintiff, as school principal, was deploring the failure to adhere to his “chain-of-eommand” philosophy, yet he himself was not complying with that doctrine. He was rushing into print with newspaper releases and pursuing a course of direct contact with the county prosecutor to advocate a probe of school conditions. Thus, he was going over the heads of the board members and the school situation was worsening. A contest for the position of superintendent of schools appeared in the background. Plaintiff and the acting school superintendent loomed as rivals for the appointment. The board members, split as to the course to be pursued, were presented with a resolution to terminate plaintiff’s contract. The board had a legal right under the contract to do so. The board members also certainly had a legal right to vote on that resolution.

The gravamen of plaintiff’s complaint is that the majority acted with malice. Malice, in the exercise of one’s legal right, does not as a general rule give rise to an action for money damages. Eor example, truth is an absolute defense in a libel or slander action. One has a legal right to speak or write the truth about another. If he utters or publishes the truth, he may not be held civilly liable for damages, even though the motivation was malicious, viz., to hurt the other’s reputation. So, too, if one erects a fence on his property, not only to serve as a protective barrier but also to prevent his neighbor, whom he does not like, from looking into his rose garden, the presence of malice as a prompting factor will' not establish, per se, a cause of action for money damages. Cf. 1 Am. Jur 2d, Adjoining Landowners, § 106 (1962). It has been aptly said: “Malicious motives make a bad act worse, but they cannot make that wrong which, in its own essence, is lawful.” Jenkins v. Fowler, 24 Pa. 308 (Sup. Ct. 1855).

By the same legal principle, the individual board members here had a legal right, in the exercise of their powers and functions as members of the board, to vote in favor of the resolution at a board meeting.

Even if we assume that there were mixed reasons for the majority’s action in terminating plaintiff’s contract, namely, ill-will toward plaintiff and a desire to cure a worsening school situation, it is sufficient that a valid motivation prompted the action taken. Not infrequently public employees find their jobs abolished on the ground of economy, a valid objective, but political motivation also lurks in the background. Our courts uphold the abolition so long as the valid reason of economy attends the course taken. So, too, in the instant case, the exercise of the board members’ legal right to terminate plaintiff’s contract for a valid reason is not converted into an actionable wrong, merely because some malice attended the exercise of the legal right.

Accordingly, the judgment against the board members for exercising their legal right is reversed.

Moreover, we note that the judgment against the individual board members was for “punitive” damages only. There was no award against them for compensatory damages. The question, then, is whether a verdict for punitive damages, standing alone, without any proper compensatory damages, is sustainable. We know that it is not unusual for a jury to return a small, relatively nominal compensatory damage allowance, and then couple it with a substantial sum by way of punitive damages. But may there be punitive damages allowed without any compensatory damages against a particular defendant?

When there is only a nominal compensatory damage award, such as the traditional six cents symbolic of the diminutive English six-pence piece, there is inherent in that small award a finding by the jury of a violation of a legal right. Eor example, there might have been a trespass without any substantial damage. But where no compensatory damages are awarded, not even nominal, as in the instant case, there is an inference that the jury did not find a violation of a legal right, else it would have allowed at least nominal damages. A verdict for punitive damages alone suggests a punishment for malice, without more.

But malice alone, without a violation of a legal right, is not actionable. One may not be punished civilly, by an award of punitive damages only, for what he had a legal right to do and did legally. See Barber v. Hohl, 40 N. J. Super. 526, 534 (App. Div. 1956), noting that “the great weight of authority is to the effect that punitive or exemplary damages will not be awarded unless there is an independent cause of action for compensatory damages, and that, more frequently than not, an actual verdict or award of compensatory damages is held a prerequisite for the allowance of punitive damages. Annotation 17 A. L. R. 2d 527, 530.” As we further observed in that case, “The theory of the general rule is that the mere doing of an act with malicious motive or wrongful animus is not of itself an actionable wrong * * Ibid. We recognized that some authorities hold that nominal compensatory damages will suffice to support an award of punitive damages.

Ill

As to the Judgment Against Individual Defendant Non-Members of the Board

Among the individual defendants, against whom punitive damages alone were awarded, were the superintendent of schools and the mayor.

In addition to our view above, that punitive damages alone, without an award of at least nominal compensatory damages, is not legally justifiable, we find a lack of support under the law for the judgment against the superintendent of schools or the mayor on the evidence herein.

The 4-4 tie vote of the board of education on the issue of rescinding plaintiff’s employment contract under the 60-day termination provision was not broken until board memher Peterson announced that he would change his previous negative vote to an affirmative vote for rescinding, only if the school superintendent would expressly recommend termination of plaintiff’s employment as being in the public interest.

Called upon to make his recommendation, the school superintendent, acting in the performance of his school duties and upon specific request of a board member, recommended termination of plaintiff’s employment contract as being in the best interests of the school system. In so doing the superintendent not only exercised a legal right, by reason of his supervisory position, but he performed a public duty mandated by a board member’s request. Iiis motivations for the recommendation may have been mixed — the public interests and his own personal feelings. The valid reason sufficed to justify the action taken.

The mayor’s involvement was due to a public declaration made by him, in discussing the involved school problems, in which he referred to the fact that there was a “fester,” without specific reference to.any person, and the need to remove it. It was also claimed that he was the one who influenced Peterson to change his vote. Here, again, we have at most a claim of malice by a person in the exercise of his legal rights. The mayor, by virtue of his office, had a right and a duty to inquire into and express his views about a situation which was bringing the community into public disrepute. A “sore” spot coneededly existed in the school community and there was adverse newspaper publicity as to alleged indiscreet goings on in the school and of plaintiff’s seeking a probe by the prosecutor. Such a probe could cause the sore to “fester.” Certainly, getting rid of the “fester” did not per se refer to plaintiff personally, but rather to a situation whose worsening cannot be disputed.

The alleged use by the mayor of his influence upon Peterson to change his vote, even if that was done, was not per se wrongful. The evidence does not demonstrate any impropriety on the mayor’s part. Moreover, the record makes manifiest that Peterson’s change in his vote was based solely upon his insistence that only the recommendation of the school superintendent, expressly declaring that the best interests of the school system so required, would cause him to do so. •

Eor the foregoing reasons, we conclude that the award of punitive damages against the individual defendants was not legally justified.

The judgment, as to aU the defendants, is reversed.


author: Consodine, J. C. C.

text:
    J. B., PLAINTIFF, v. G. B., DEFENDANT.
    Superior Court of New Jersey Chancery Division
    Decided June 22, 1970.

      Mr. Lawrence S. Schwartz, argued the cause for plaintiff. (Messrs. Schwartz and Lei Plato, attorneys).

      Mr. Robert G. Neff, argued the cause for defendant. (Messrs. Meth and Wood, attorneys.)
   Consodine, J. C. C.

(temporarily assigned). Plaintiff sues for annulment alleging impotence. Defendant counterclaims for divorce on the ground' of extreme cruelty.

On the testimony before me, including medical testimony, I find: 1) The marriage was never consummated. 2) Defendant was ready, willing and able to consummate the marriage. 3) Plaintiff could not consummate the marriage with this defendant. 4) There was no cruelty, extreme or otherwise, by plaintiff to defendant. 5) The condition of defendant’s health when the parties' separated was attributable only to the inability of plaintiff to consummate the marriage. 6) Plaintiff had no knowledge prior to the marriage of his inability to consummate the marriage.

Our rules (Part IY) govern the practice and procedure of civil actions in this court. R. 4:1.

R. 4:9-2 allows the court to amend the pleadings to conform to the evidence. R. 4:42-6 requires that a final judgment shall grant the relief to which the party in whose favor it is rendered is entitled even though he has not demanded such relief in his pleadings, provided the parties have been given an adequate opportunity to be heard as to the relief granted. See Ford v. Reichert, 23 N. J. 429 (1957). There was such opportunity availed by the parties.

The impotent party to a marriage can bring an annulment action. Such an action is not limited on the facts herein to the potent rather than the impotent spouse. N. J. S. A. 2A:34-1; D (otherwise C) v. C., 91 N. J. Super. 562 (Ch. Div. 1966); 12 N. J. Practice (Herr-Lodge, Marriage, Divorce & Separation), § 1424, at 36 (1963); Harthan v. Harthan, 2 All E. R. 639 (1948); A. v. A. (sued as B), 19 L. R. Ir. 403 (1887); F. v. F., S. C. 202 (Scot. 1945).

A judgment of annulment to both parties is without precedent in New Jersey. However, such a decree is not unusual in England. See H. v. H. (otherwise N) 98 L. J. P. 155; 45 T. L. R. 618 (Prob. Div. & Adm. Div. 1929); G. v. G., Prob. 173 (1912).

Under the general equity power of this court, judgment of annulment is granted to each party against the other.


author: Mountain, J. S. C.

text:
    THOMAS M. MERCADANTE AND MARIO OPROMOLLO, INDIVIDUALLY AND IN BEHALF OF ALL OTHERS SIMILARLY SITUATED, PLAINTIFFS, v. THE CITY OF PATERSON, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, AND THE BOARD OF FIRE AND POLICE COMMISSIONERS OF THE CITY OF PATERSON, DEFENDANTS.
    Superior Court of New Jersey Chancery Division
    Decided June 22, 1970

      Mr. Abram A. Lebson for plaintiffs (Messrs. Lebson and Prigoff, attorneys).

      Mr. Joseph L. Conn for defendants.
   Mountain, J. S. C.

Plaintiffs Thomas M. Mercadante and Mario Opromollo are, respectively, a duly appointed fireman and policeman of the City of Paterson. It is admitted that each had been a resident of the city for two years next preceding his appointment and hence met the requirements of N. J. S. A. 40:47-3. Recently the municipality has taken the position that plaintiffs’ are no longer residents of Paterson within the meaning of certain statutes to be mentioned below, and therefore they are subject to disciplinary proceedings and may, in fact, no longer qualify for the positions to which they were appointed. Plaintiffs claim that they and others similarly situated are not, in fact, in violation of these statutes and have brought this suit as a class action seeking a declaratory judgment supporting their contention.

The pertinent statutory provisions are the following:

Except as otherwise provided by law, every person bolding an office, the authority and duties of which relate to a county only, shall reside within the county, and every person holding an office, the authority and duties of which relate to a municipality, shall reside within the municipality. [N. J. S. A. 40:11-1]
Whenever an officer of a municipality shall cease to be a bona fide resident therein, or whenever the resignation of any such officer shall have been accepted by the proper authority, a vacancy in his office shall immediately exist, and he shall not exercise any of the duties of the office theretofore held by him. The municipality, by its proper authority, shall immediately proceed to fill the vacancy in the manner and form prescribed by law. [N. J. S. A. 40:46-14]
The officers and men employed in every municipal police department and in every municipal paid fire department and the paid members of every municipal part paid fire department who are permanently employed by the municipality at a fixed annual salary and whose sole occupation is that of fireman in said municipal part paid fire department shall severally hold.their respective offices and continue in their respective employment during good behavior, efficiency and residence in the municipality wherein they are respectively employed. N. J. S. A. 40:47-5]

Plaintiffs initially argue that neither N. J. S. A. 40:11-1 nor 40:46-14 apply since these statutes affect only officers; that firemen and policemen are not officers filling particular offices but are rather employees filling -particular positions. The law appears well settled to the contrary. In this state policemen and firemen are municipal officers. Duncan v. Board of Fire, etc., Comm’rs, 131 N. J. L. 443, 445-446 (Sup. Ct. 1944); Isola v. Belmar, 34 N. J. Super. 544, 555 (App. Div. 1955); Guth v. North Bergen Tp., 35 N. J. Super. 24, 27 (App. Div. 1955); Fitzpatrick v. Passaic, 105 N. J. L. 103 (Sup. Ct. 1928), aff’d 105 N. J. L. 632 (E. & A. 1929); LaPolla v. Union County Freeholder Board, 71 N. J. Super. 264, 272-273 (Law Div. 1961); Mastrobattista v. Essex County Park Comm’n, 85 N. J. Super. 283, 288 (App. Div. 1964).

In Kennedy v. Newark, 29 N. J. 178 (1958), it was decided that a residence requirement for governmental employment, whether at the state, county or municipal level and whether imposed by statute or ordinance, is constitutional. This is necessarily conceded by plaintiffs who, however, allege that they meet the residency requirements as set forth in the foregoing statutes.

Plaintiff Mercadante claims that he resides with his mother-in-law and father-in-law on one floor of a three family house in Paterson. He contributes to the rent and sleeps there several nights each week. Meanwhile, his wife and two children live in a one-family residence in Hawthorne which he and his wife purchased for approximately $35,000. The children attend the neighborhood school in Hawthorne and plaintiff sleeps there about three nights a week. There are no marital difficulties between him and his wife. He attends a church in Paterson, while the other members of his family attend a church in Hawthorne. Both are churches of the Roman Catholic faith. He votes in Paterson.

Plaintiff Opromollo claims to reside in a one-family house in Paterson with his divorced sister and her four children. He pays $12 a week rent. He owns, with his wife, his father and a sister, a one family home in East Paterson which is occupied by his wife and four children. His father and sister do not live in the house and appear in the deed as co-owners only to secure plaintiffs financial obligation, undertaken when the home was purchased. He sleeps part of each week in each place. There are no marital difficulties between him and his wife. lie votes in Paterson.

Both Hawthorne and East Paterson adjoin the City of Paterson.

The issue, then, is whether under these facts plaintiffs do or do not meet the residence requirements as set forth in the statutory provisions quoted above. Residence may be, but need not be, equated with domicile. Restatement, Conflict of Laws, § 9e.

A person, may have more than one residence but may not have more than one domicile. His permanent home is his domicile and the place of his domicile determines his right to vote. The domicile is the place of his abode where he has the present intention of remaining and to which, if absent, he intends to return. [State v. Atti, 127 A. J. L. 39, 41-42 (Sup. Ct. 1941), affirmed 128 N. J. L 318 (E. & A. 1942)]

Among the factors which are chiefly important in determining the domicile of a person who has more than one residence are the physical characteristics of each, the time spent and the things done in each place, the other persons found there, the person’s mental attitude toward each place, and whether there is or is not an intention, when absent, to return. Restatement, supra, § 13c.

Applying these significant criteria to the facts of this case inevitably leads to the conclusion that plaintiff Mercadante is domiciled in Hawthorne and plaintiff Opromollo in East Paterson. At the same time each has a residence of sorts in Paterson. Will these residences, or indeed any residence short of domicile, meet the statutory requirements? In Kennedy v. Newark, supra, 29 N. J. at 183 the court said:

* * * although many decisions will be found in which residence requirements are revealed, there is a virtual dearth of constitutional challenge. The reason no doubt is a common acceptance of the proposition that the Legislature may well find the public interest is advanced by residence within the political unit which provides the pay. Plaintiffs suggest that residence can be relevant only in the area in which there may be calls for emergency work. That is too narrow a view of permissible conceptions of public interest. Government may well conclude that residence will supply a stake or incentive for better performance in office or employment and as well advance the economy of the locality which yields the tax revenues.

Since the requirement we are considering is intended to foster the public interest as so defined, no casual residence was intended hut rather a real and principal residence, in short, domicile. Nothing less will create that “identity with the community,” State v. Benny, 20 N. J. 238, 252 (1955), which may well have been a legislative goal the advancement toward which was sought by this requirement. It is to be noted that with but few exceptions the Legislature has stipulated that all municipal employees must meet the residency test; it is not confined to firemen and policemen. Furthermore, it should be noted that if the governing body of any municipality finds that adherence to the residence requirements will “seriously impede its ability to establish and maintain competent personnel for its police force or paid fire department,” then it may appoint and retain firemen or policemen who fail to meet these tests. N. J. S. A. 40:47-3.3.

Accordingly, it is the court’s conclusion that plaintiffs do not at the present time meet the residence qualification for the offices to which they have been appointed. There will be no costs.


author: Fusco, J. S. C.

text:
    STATE OF NEW JERSEY, PLAINTIFF, v. DOLORES THOMAS, DEFENDANT. STATE OF NEW JERSEY, PLAINTIFF, v. MARIE WILLIAMS, DEFENDANT.
    Superior Court of New Jersey Law Divison
    Decided June 4, 1970.

      Mr. Dermis Cipriano for plaintiff (Mr. Joseph P. Lordi, Essex County Prosecutor, attorney).

      Mr. Don X. Bancroft and Mr. Paul Tidiness, Deputy Public Defender, for defendants.
   Fusco, J. S. C.

These are hearings on the admissibility of signed and oral statements allegedly given by defendants Thomas and Williams to one John Allen, an investigator for the Essex County Welfare Board. Both Thomas and Williams are charged in one-count indictments with the crime of obtaining financial assistance by false representations, better known as welfare fraud, under N. J. S. A. 2A:111-3.

Defendants in each instance resist the admissibility of any such statement on the grounds that the procedural safeguards established in Miranda v. Arizona, 384 U. 8. 436, 474, 86 8. Ct. 1602 (16 L. Ed. 2d 694 (1967)), were not granted. They argue that the statements obtained were not voluntary, were gotten through artifice and trick, and that defendants were the target of an investigation by the welfare authorities.

The State opposes these arguments, relying on the theory that Miranda only applies to custodial interrogation, and that in a case such as this, in which the statements were obtained at defendants’ homes, the Miranda rules do not apply.

There is no evidence that this point has previously been litigated in a reported case in this State.

The factual pattern in both cases is similar: Allen, an investigator, was sent to defendants’ homes to obtain a statement which might be used in a criminal proceeding against them. Allen testified on direct examination that he told defendants in each instance that they “had better tell the truth,” hinting that the welfare hoard might take adverse action (as to their welfare payments, presumably) if they did not cooperate. On cross-examination, however, it was adduced that the investigator was to report to the prosecutor’s office if he found a paramour living with defendant Thomas and if he found that defendant Williams’ children were not living with her.

The court points out, merely in passing, that the mere fact that a paramour is living with a welfare recipient is not grounds on which aid can be eliminated or lessened, unless the man is “legally obligated” to support the child. Lewis v. Marlin, 397 U. S. 552, 90 S. Ct. 1282, 25 L. Ed. 2d 561, 565 (1970). See also, King v. Smith, 392 U. 8. 309, 329, 88 S. Ct. 2128, 20 L. Ed. 2d (1969).

At the outset, it is clear that defendants were targets of potential criminal proceedings. Although Allen indicated to them that only their welfare moneys were in question, in reality, possible criminal actions was the purpose of his visit and it was certainly in his mind when he called on defendants, albeit at their own homes. The situation is strikingly similar to that of the grand jury which, under the guise of a general investigation, in actuality narrows its focus on one individual called before it to testify, unaware of the true purpose of the investigation. See State v. Browning, 19 N. J. 424 (1955). In such a case, where defendant was not apprised of the subject matter of the inquiry, he could not be expected to understand or knowingly waive his privilege against self-incrimination. State v. Sarcone, 96 N. J. Super. 501 (Law Div. 1967).

And, certainly where defendant is the target of the investigation, the action by the investigator becomes a “critical stage” of the proceedings, State v. Williams, 97 N. J. Super. 573, 601 (Law Div. 1967); Miranda, supra, 384 U. S. at 467, 86 S. Ct. 1602, since it is one at which valuable rights can be waived or where events might prejudice a forthcoming trial. Cf. State v. Vogel, 45 N. J. 400, 404 (1965).

It is well-established that psychological, as well as physical duress, can be the “hallmark of an unconstitutional inquisition.” Blackburn v. Alabama, 361 U. S. 199, 206, 80 S. Ct. 274, 4 L. Ed. 2d 242 (1960). And see, Haynes v. Washington, 373 U. S. 503, 83 S. Ct. 1336, 10 L. Ed. 2d 513 (1963). In a situation such as this, where the investigator entered under the color of governmental sanction, the possibility of mental duress is dramatically and inexorably increased.

In a case where social welfare workers were ordered to make “midnight raids” into the homes of welfare recipients, the California Supreme Court noted:

The persons subjected to the instant operation confronted far more than the amorphous threat of official displeasure which necessarily attends such a request. The request for entry by persons whom the beneficiaries knew to possess virtually unlimited power over their very livelihood posed a threat which was far more certain, immediate, and substantial.
[Parrish v. Civil Service Comm., 66 Cal. 2d 260, 57 Cal. Rptr. 623, 629, 425 P. 2d 223 (1967)]

The court must also note, in passing, that the standard for administrative searches for primarily civil purposes has recently been elevated to the same strict constitutional level as that of searches for evidence for criminal prosecutions. Camara v. Municipal Court, 387 U. S. 523, 528-529, 87 S. Ct. 1727, 18 L. Ed. 2d 930 (1967). And, where benefits were terminated as a result of refusal of recipients to allow welfare officials enter their home, an injunction was issued on behalf of recipients against the welfare officials, on the ground that a welfare home visit was an unreasonable search within the Fourth Amendment, James v. Goldberg, 303 F. Supp. 935 (S. D. N. Y. 1969). Further, where defendant in a narcotics prosecution was threatened with the loss of welfare funds for her infant children if she did not “cooperate,” it was held that any statement made by her in such a case would be considered “coerced” and the product of her “overborne” will. Lynumn v. Illinois, 372 U. S. 528, 534, 83 S. Ct. 917, 9 L. Ed. 2d 922 (1963).

The instant case falls within this framework: there is a clear threat of loss of government benefit (in actuality, the spectre of criminal prosecution) if the recipient does not “cooperate” with the authorities. It is clear to this court that the defendants were “tricked, threatened and cajoled” (Miranda, supra, 384 U. S. at 476, 86 8. Ct. 1602) by the trick and artifice of the welfare department in obtaining the signing of a statement they otherwise would not have signed had they had their own free will and had they been advised of the purpose of the statement.

Similarly, it is too late in the day for the State to argue that defendants, merely because they are welfare recipients, may be restricted in their exercise of constitutional rights. Just as liberties of religion and expression cannot be infringed by the denial of or placing of condition upon a governmental benefit or privilege, Sherbert v. Verner, 374 U. S. 398, 404, 83 S. Ct. 1790, 10 L. Ed. 2d 965 (1963), neither can the liberties guaranteed by the Fifth and Sixth Amendments be limited by the fact that the individual involved receives governmental benefits. Cf. American Communications Ass’n v. Douds, 339 U. S. 382, 70 S. Ct. 674, 94 L. Ed. 925 (1950); Speiser v. Randall, 357 U. S. 513, 526, 78 8. Ct. 1332, 2 L. Ed. 2d 1460 (1958) (“conditions upon public benefits cannot be sustained if they so operate, whatever their purpose, as to inhibit or deter the exercise of First Amendment freedoms”); Thorpe v. Housing Authority of City of Durham, 386 U. S. 670, 678-679, 87 S. Ct. 1244, 1248, 18 L. Ed. 2d 394 (1967) (Douglas J. concurring).

This is no less binding when the benefits involved are welfare benefits. “In welfare, the government should not be allowed to impose any conditions that would be unconstitutional if imposed on persons not on welfare: the government cannot ‘buy up’ constitutional rights.” Handler, “Controlling Official Behavior in Welfare Administration,” 54 Cal. L. Rev. 479 (1966), in Dodyk et als., Law and Poverty 225, 226 (1969). See also, Note, “Rehabilitation, Investigation and the Welfare Home Visit,” 79 Yale L. J. 746, 760 (1970).

Under the circumstances present, then, the court has no hesitancy in deciding that the Miranda warnings must be applied to such a situation in which a defendant is the target of a prosecutorial investigation, where defendant is under duress as a result of the presence of governmental authority, and where trick is used by the government in obtaining the needed statement. The fact that the statements were not obtained in a police stationhouse does not eliminate the need for these warnings to be given. “Decisions concerning human rights are too important to be left to the public welfare workers and public administration officials without the aid of the law.” Reich, “Individual Rights and Social Welfare: The Emerging Legal Issues,” 74 Yale L. J. 1245, 1257 (1965).

Under Miranda, a defendant must be informed of the nature of the charges against him with specificity. He must be told that he has the right to remain silent; that if he chooses to answer questions he may stop at any time; that anything he says may be used against him; that he may consult a lawyer and has access to a lawyer throughout the entire questioning, and, if he cannot afford a lawyer, one will be provided for him. Miranda, supra. 384 U. S. at 444-445, 86 S. Ct. 1602.

In the cases before the court, the form which defendants signed concluded as follows:

I make this affidavit of my own free will, my rights have been explained to me and I fully understand the meaning of supplying the necessary information.

This statement is fatally inadequate in that it does not contain the necessary warnings with either specificity or clarity.

These rights may be waived, provided they are waived voluntarily, knowingly and intelligently. Such a waiver will never be presumed from silence or from the fact that a statement was obtained. Id. at 475, 86 S. Ct. 1602. A waiver is an “intentional relinquishment or abandonment of a known right or privilege,” (emphasis added), Johnson v. Zerbst, 304 U. S. 458, 464, 58 S. Ct. 1019, 82 L. Ed. 1461 (1938). Even where defendant was an attorney, and presumably skilled in the law, the presumption against waiver was still indulged. Glasser v. United States, 315 U. 8. 60, 70, 62 S. Ct. 457, 86 L. Ed. 680 (1942). A waiver must be a “free, deliberate and understanding foregoing” of one’s rights. Green v. State, 245 A. 2d 147, 149 (Me. Sup. Jud. Ct. 1968).

It is clear that there was no such intentional or voluntary waiver here. The statements obtained from defendants were given “in submission to authority, rather than as an understanding and intentional waiver of constitutional right.” Johnson v. United States, 333 U. S. 10, 13, 68 S. Ct. 367, 368, 92 L. Ed. 436 (1948) (search was consented to after governmental officials identified themselves as such). Indeed, “intimidation and duress are almost necessarily implicit” in situations such as this. Cf. Judd v. United States, 89 U. S. App. D. C. 64, 190 F. 2d 649, 651 (1951). And, of course, this applies with equal weight where the government intrusion is to obtain a statement in violation of the Fifth and Sixth Amendments as where the intrusion is to conduct a search violative of the Fourth. See James v. Goldberg, supra.

As there was no voluntary waiver in the instant ease, the standards of Miranda were not complied with by the welfare investigator, acting under the color of the State. Therefore, any statements taken from defendants cannot be used in any criminal prosecution of them stemming from this welfare investigation.

The motions by defendants to suppress the statements will be granted.


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

text:
    JERSEY CITY REDEVELOPMENT AGENCY, A BODY CORPORATE AND POLITIC OF THE STATE OF NEW JERSEY, ET AL., PLAINTIFFS-APPELLANTS, v. GEORGE F. KUGLER, JR., ATTORNEY GENERAL OF THE STATE OF NEW JERSEY, ET Al... DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate- Division
    Argued April 6, 1970
    Decided July 1, 1970.

      Before Judges Corroed, Collester and Kolovsky.

      Mr. Benjamin H. Chodash, argued the cause for appellants (Messrs. Krieger, Chodash & Politan, attorneys).

      Mr. George B. Handler argued the cause for respondent Goldhand, Ltd. (Messrs. George R. and William L. Handler, attorneys).

      Mr. Herman C. Silverstein argued the cause for respondents Papp and Dashev, and as Amicus Curiae on behalf of others similarly situated (Rachel Leff, Hsq., on the Brief).

      Mr. Philip R. Carlin argued the cause for respondents Oswald (Messrs. Goldberg & Garlin, attorney's).
    A Statement in Lien of Brief was filed by Mr. George F. Kugler, Jr., Attorney General of New Jersey {Mr. Arthur Abba Goldberg, Deputy Attorney’-General of Counsel).
   The opinion of the court was delivered by

Conford, P. J. A. D.

This action was begun by Jersey City Redevelopment Agency (Redevelopment) and John J. Márchese, individually and as an officer of Redevelopment, to obtain a judgment declaring unconstitutional N. J. S. A. 20:1-9 and N. J. S. A. 40:55-21.10 insofar as those enactments provide that in eminent domain proceedings involving the development or redevelopment of blighted areas the value of any property sought to be acquired shall be determined at no less than the value thereof as of the final declaration of blight by the municipality concerned. The Law Division in a well-considered opinion by Judge Eink (unreported) sustained the statutory provisions as valid and granted summary judgment to defendants. We agree with that determination.

The case concerns the Henderson Street (Jersey City) Urban Renewal Project. On February 2, 1960 the governing body adopted a resolution approving the project. As required by law, the resolution included a declaration of blight as to the area involved. Initial steps toward condemnation of any property within the 24.8 aerea of the project did not take place until 1969. In the meantime, L. 1967, c. 217 and L. 1967, c. 218, took effect, providing, as noted above, for a minimum valuation in blight condemnations of the value of the property as of the date of declaration of blight by the municipality.

Pending argument of the appeal defendant Gold-hand, Ltd., owner of a parcel of land affected, moved to strike Redevelopment and Márchese (in his official capacity) as plaintiffs-appellants for lack of standing to assert the uneonstitutionality of a legislative enactment. We reserved decision pending oral argument. We fully agree that Redevelopment, as a municipal agency and creature of the State, and Márchese as its official, is without standing to make the contention urged below and here that the statutes as thus amended deprive it of equal protection of the laws contrary to the Fourteenth Amendment. See Camden County v. Pennsauken Sewerage Auth., 15 N. J. 456, 470 (1954). However, Redevelopment also argues that the acts violate the constitutional prescription of “just compensation” for private property taken for public purposes and (on appeal for the first time) that they effect an unconstitutional donation of public funds to private persons. Rather than debate the question whether the agency, or Márchese as an official thereof (or Márchese as a taxpayer), has standing to assert either or both of those asserted constitutional deficiencies, we deem it preferable in the public interest to settle the constitutional questions presented on their merits. The motions to dismiss are consequently denied, but without prejudice.

I — Equal Protection

Plaintiffs contend that while public bodies having the right of condemnation are subject to the rule, in all other kinds of condemnation, that valuation is fixed as of the date of filing the complaint in the proceedings, N. J. S. A. 20:1-9; State v. Nordstrom, 54 N. J. 50, 53 (1969), condemnors of blighted property arc arbitrarily singled out for subjection to the rule of valuation as of the date of declara-, tion of blight — a date which may, as here, be years earlier than the filing of the complaint or the taking of possession of the property by the public agency.

Aside from the point of lack of standing of a municipal body to assert denial of equal protection by the State Legislature, as noted above, the contention lacks intrinsic merit. The legislative treatment of blight cases is based on the common knowledge born of widespread experience that the pronouncement of blight by a public body authorized to condemn generally produces a severe downward phase in the value of the property. Potential buyers and long-term lessees are discouraged, the rate of tenant-vacancies increases, and the incentive for protective maintenance is dulled.

The Supreme Court clearly implied its concurrence in the reasonableness of the legislative action here debated when it. recently said, in another blighted area-condemnation case:

There can be no doubt that a declaration of blight ordinarily adversely affects the market value of property involved. This is unfortunate because in so many instances the physical taking of the property does not occur for a number of years. In the meantime the owner can only wait for that ultimate taking; there is usually no reasonable market otherwise open to him for sale of the property. Moreover, in the interim his good housekeeping incentive generally recedes and deterioration of the building sets in. The Legislature has recognized the difficulty and has partially rectified it by providing that when property previously declared blighted is condemned the value “shall be fixed and determined to be no less than the value as of the date of the declaration of blight * * L. 1967, c. 217, § 1; N. J. S. A. 40:55-21.10.
In fairness, it is not enough to assure the property owner that at some time, perhaps years hence, he will receive the market value of his property as of the date of the declaration of blight. Meanwhile, he and his family may well be imprisoned economically in the blighted area because he needs the capital invested in the blighted-area dwelling in order to purchase a new home elsewhere. Consequently, he must endure the deterioration that affiicts a neighborhood at an accelerated pace following a declaration of blight. In this contest, equitable considerations call for action by the public authority to effectuate the redevelopment plan with reasonable dispatch, at least to the extent of the financing necessary to acquire the land to be redeveloped. [Lyons v. Camden, 52 N. J. 89, 99 (1968)]

We find no improper classification by the Legislature in providing for a valuation date for condemnation of property declared blighted different from that applicable to the generality of condemnation proceedings.

II

Violation ot Principle op “Just Compensation"

Plaintiffs argue that by fixing the date of valuation at a time remote from the date of “taking” the Legislature has assumed the authority to determine the “measure of compensation,'" contrary to the assorted rule that this is a judicial rather than a legislative function. They rely upon Monongahela Navigation Co. v. United States, 148 U. S. 312, 13 S. Ct. 622, 37 L. Ed. 463 (1892). However, in using language of the aforestated import (at 327, 13 S. Ct. 622) the court there was dealing with a congressional act specifying that in the Government’s condemnation of the owner’s river locks and dams, value should be fixed without regard to the owner’s franchise to collect tolls. The court held that the effect of the act would be to give the owner less than just compensation for his property, contrary to the Fifth Amendment. Cf. United States v. New River Collieries Co., 262 U. S. 341, 43 S. Ct. 565, 67 L. Ed. 1014 (1923).

Tiras, the effect of that and similar holdings is no more than that upon a complaint by a property owner that he has been accorded less than just compensation for property taken for public purposes the existence of a legislative rule affecting the quantum of compensation will not preclude the exercise of the judicial function to determine whether the rule is compatible with the award of just compensation to that owner.

Here, of course, that situation does not exist. Here an arm of government, not the property owner, complains of the legislative action, contending in effect that excessive compensation is afforded the owner. Eor reasons to be stated, it is clear to us that in that context the Legislature has considerable latitude to provide broadly for fair treatment of the condemnee, short of giving away public funds contrary to the prohibition thereof in Article VIII, Section III, paragraphs 2 and 3, N. J. Constitution (1947).

The point here under discussion is given focus by a comparison of what was held in Wilson v. Long Branch, 27 N. J. 360, 373-374 (1958), cert. den. 358 U. S. 873, 79 8. Ct. 113, 3 L. Ed. 2d 104 (1958), and what was intimated in Lyons v. Camden, supra. In Wilson, dealing with a situation as of prior to the 1967 amendments here in question, the court rejected an owner’s contention that the Blighted Area Act was invalid because it did not compel condemnation of property officially declared blighted, against the background of the fact that the very declaration of blight lessens or destroys the market, value of such property, the argument being that the declaration therefore constitutes a compensable “taking.” The court (at 374) cited previous authority holding that injury to private property ensuing from governmental action in a proper sphere is not “necessarily” a taking of the property within the constitutional prohibition against taking private property without just compensation. The injury to the owner from mere declaration of blight was ruled damnum absque injuria. Yet, notwithstanding the foregoing, it will be recalled that Justice Erancis, who wrote for the Supreme Court in both cases, said in the Lyons opinion quoted above that the 1967 amendments now before us “partially rectified” the owner’s plight, thereby auguring, in our view, approval of the validity of the amendments by the Supreme Court.

Such results would not be inconsistent. They indicate that while the property owner has no absolute right, absent legislative sanction, to relief for devaluation of property consequent upon official declaration of blight, the Legislature has plenary authority to ameliorate the injury to the property owner by fixing the valuation date as of the time of declaration of blight. There is no rigid principle, constitutional or otherwise, that precludes consideration of other factors bearing upon the justness of compensation to the property owner independent of the narrow criterion of the value of the property as of the date of filing of the complaint. See, e.g., State Highway Com’r, State by v. Jones, 27 N. J. 257, 261-262 (1958). Wide latitude is vested in the Legislature for regulation “of the manner and method of exercising the power of eminent domain,” subject only to express constitutional limitations. Port of N. Y. Authority v. Heming, 34 N. J. 144, 154 (1961), cert. den. 367 U. S. 487, 81 S. Ct. 1676, 6 L. Ed. 2d 1241 (1961).

It has been held elsewhere that a de facto taking occurs when the municipality adopts a resolution for an urban renewal plan, followed by deterioration of the property, and that the valuation date in the subsequent condemnation proceedings should be fixed as of the date of the resolution notwithstanding that ordinarily the date of transfer of title would control. City of Buffalo v. Strozzi, 54 Misc. 2d 1031, 283 N. 7. S. 2d 919 (Sup. Ct. 1967; cf. Tharp v. Urban Renewal & Community Develop. Ag., 389 S. W. 2d 453, 456 (Ky. Ct. App. 1965). Similar determination has been had where affirmative actions by the city after declaration of blight have contributed to the devaluation. See In re Elmwood Park Project Section 1, Group B., 376 Mich. 311, 136 N. W. 2d 896 (Sup. Ct. 1965).

The authorities amply support the concept of a penumbral zone wherein the harmful effect of public projects on private property may be regarded as not constitutionally compensable as of right but wherein the Legislature may nevertheless appropriately elect to compensate the owner. This is such a case. See, e. g., Newark v. Hatt, 79 N. J. L. 548, 550 (E. & A. 1910); Burns Holding Corp., v. State Highway Comm’n, 8 N. J. Misc. 452-453, 150 A. 768 (Sup. Ct. 1930), aff’d o. b. 108 N. J. L. 401 (E. & A. 1931); Element v. Delaware River Joint, etc., Comm’n, 119 N. J. L. 600 (Sup. Ct. 1938) aff’d sub nom. Colburn v. Delaware River Joint Toll Bridge Comm’n, 123 N. J. L. 197 (E. & A. 1939), rev’d on other grounds, 310 U. S. 419, 60 S. Ct. 1039, 84 L. Ed. 1287 (1940); Newark v. Porter, 120 N. J. L. 389 (Sup. Ct. 1938); Cf. Tubular Service Corp. v. Comm’rs of State Highway Dept., 77 N. J. Super. 556, 562 (App. Div. 1963), aff’d 40 N. J. 331 (1963); 26 Am. Jur. 2d, Eminent Domain, § 151, p. 365; Joslin Mfg. Co. v. Providence, 262 U. S. 668, 674, 43 S. Ct. 684, 67 L. Ed. 1167 (1923).

We conclude that the 1967 acts do not contravene constitutional principles concerned with just compensation for land taken for public purposes.

Ill

Violation of Constitutional Principles Against Gifts of Public Funds

We see no merit at all in the belated contention that allowing damages as of 1960 when “taking” did not here begin until 1969 means an invalid donation of public money to private persons to the extent of the excess, if any, of 1960 over 1869 values. The implied legislative determination that the decline in value was a result of the declaration of blight is presumptively correct. It cannot be said to be a gift of public funds for the Legislature to compensate the pecuniary victims of legislatively authorized actions of state instrumentalities. Compare the cases holding that a moral consideration may suffice to support an appropriation of public funds to private entities as against the constitutional proscription of donation of public funds to private persons or corporations. Morris and Essex R. R. Co. v. Newark, 76 N. J. L. 555 (E. & A. 1908): Rader v. Union Tp., 39 N. J. L. 509 (Sup. Ct. 1877), aff'd 41 N. J. L. 617 (E. & A. 1879); Rutgers College v. Morgan, Compt’r, 70 N. J. L. 460, 474, 477 (Sup. Ct. 1904), aff’d o. b. 71 N. J. L. 663 (E. & A. 1905); and see Wilentz v. Hendrickson, 135 N. J. Eq. 244, 260 (E. & A. 1944).

IV

Abolition of “Defenses” of the Condemning Agency

F1S] Plaintiffs point to certain special circumstances related to flic- conduct of some of the defendant landowners subsequent to the blight resolution which assertedly render it inequitable to the condemning authority to bind it to 1960 values. They claim, as to various owners: leaving the property without adequate maintenance, producing excessive deterioration; leaving the property with inadequate insurance, a lire intervening; the collection by the owner of insurance proceeds where fire entirely destroyed a building; present ownership by “speculators” who purchased the property cheaply after the declaration of blight, etc. The argument is that the literal tenor of the 1967 amendments is to deprive plaintiffs of the “defense” of unjust enrichment of the owners in these several sets of circumstances and thereby to deny them “due process.” Even if the statutes were construed to have the stated effect, an instrumentality of the State could not complain that the State denied it due process. But we do not read the amendments as in any way changing the existing law as to the legal consequences of mishandling of the property by the owners or other circumstances affecting fair compensation as between the parties, and occurring between the statutory valuation date and the taking of possession by the condemning agency. The trial judge also entertained this view. See, e. g., N. J. Highway Authority v. Wood, 39 N, J. Super. 575, 582 (App. Div. 1956), certif. den. 21 N. J. 551 (1956).

Each of these so-called defenses will be met by the trial court on its merits in the course of the further proceedings as to any particular property. We imply no opinion as to any of them. Their incidence does not affect the question of the validity of the 1967 enactments which we herewith declare to be free from constitutional infirmity.

Judgment affirmed.

         Lyons involved condemnation proceedings prior to the effective date of the 1967 amendments. The court ordered the proceedings expedited to minimize injury to the property owners. 52 N. J., at 100.


author: Leonard, J. A. D.

text:
    ALBERT DARRAH AND RUTH DARRAH, HIS WIFE, INDIVIDUALLY AND AS RESIDENTS AND TAXPAYERS OF THE TOWNSHIP OF EVESHAM, AND AS REPRESENTATIVES OF A CLASS OF OBJECTORS, PERSONS HEREIN DEFINED AND LISTED BY NAME, PLAINTIFFS-RESPONDENTS, v. THE TOWNSHIP OF EVESHAM, ET AL., DEFENDANTS-APPELLANTS.
    Superior Court of New Jersey Appellate Division
    Argued June 22, 1970
    Decided July 7, 1970.

      Before Judges Kilkenny, Labrecque and Leonard.

      Mr. John O. Sitzler, Jr. argued the cause for appellants (Messrs. Mathews & Sitzler, attorneys; Mr. Robert W. Criscuolo, on the brief).

      Mr. Gerald E. Haughey argued the cause for respondents (Messrs. Charles & Pluese, attorneys).
   The opinion of the court was delivered by

Leonard, J. A. D.

In this proceeding in lieu of prerogative writs defendants Township of Evesham and its Municipal Utilities Authority (Authority) appeal from a summary judgment by the trial court declaring a municipal ordinance authorizing, inter alia, the construction of sewers as local improvements, to be unlawful in light of the existence of the Municipal Utilities Authority and enjoining defendants from taking any further action pursuant to the ordinance. Plaintiffs are residents of the unsewered portion of the township affected by the proposed installation. The township is comprised of 4,000 homes, of which 3,000 have sewerage facilities. Of the remaining 1,000, only 70-78 are involved in this installation.

The facts are not in dispute. Defendant township had created a municipal utilities authority, as provided for in N. J. S. A. 40:14B-1 et seq. Although defendant Authority was still in existence, the township adopted ordinance No. 23-69 which provided for a municipal bond issue to finance the extension of water and sewerage facilities to the unsewered portion of the township. The cost was to be assessed solely against the property benefited as a local improvement. The construction of the improvement was to be done by the Authority and it received bids for the performance of the necessary construction.

Defendants argue that only the local improvement method of recovering the cost of the sewers is fair since three-fourths of the township already has such facilities. The existing sewers were built by the individual housing developers, the cost of which was passed on to the buyer in the sales price. If the construction and financing were accomplished according to the Municipal Utilities Authorities Law, the service charge of the present residents using the sewerage facilities would be increased. Consequently, defendants urge that the •above result would be unfair.

In support of this policy and procedure, defendants contend that the Municipal Utilities Authorities Law, N. J. S. A. 40:14B-1 et seq., does not specifically provide that a municipal utilities authority, upon creation, becomes the exclusive means of providing the financing of sewerage facilities. Accordingly, they argue that the township retains the power to act concurrently in these matters with the Authority. Defendants rely entirely upon their interpretation of the pertinent statutory provisions noted above; they cite no case which supports their position.

Our reading of N. J. S. A. 40:14B-1 et seq., mandates the opposite conclusion. Initially, N. J. S. A. 40:14B-68 provides that the entire act

* * * shall be construed liberally to effectuate the legislative intent and as complete and independent authority for the performance of each and every act and thing herein authorized, and a municipal authoifty shall not be subject to, or constitute a municipality or agency or component of a municipality subject to, the provision of chapter 50 or any other provisions of Title 40 of the Revised Statutes * * *.

It lias been recognized that a municipal utilities authority is the alter ego of the municipality in providing water and sewer services. Jordan v. Zidel, 40 N. J. 244, 248 (1963), citing Camden County v. Pennsauken Sewerage Auth., 15 N. J. 456 (1954). As the alter ego, it follows that an authority should act in the place of the municipality in discharging the performance of this essential public need.

However, the act does specifically empower a municipality to cooperate with its utilities authority in certain limited instances. Jordan v. Zidel, supra, 40 N. J. at 248. For example, a municipality may donate or lend funds, or convey real or personal property to it. See N. J. S. A. 40:14B-24, 48. A municipality and an authority may enter into a contract for the treatment and disposal of sewage by means of the existing facilities of a municipality. See N. J. S. A. 40:14B-49. Since this act has specifically set forth the manner in which a municipality may aid an authority in the accomplishment of its purposes, we conclude that the act must be interpreted as reserving all other powers exclusively in the authority. Such an interpretation is more consistent with N. J. S. A. 40:14B-68, as above noted, which indicates that the act will be liberally construed to be the complete and independent authority for the performance of each and every task therein authorized.

In Santoro v. South Plainfield, 57 N. J. Super. 498, 501 (App. Div. 1959), the court considered the problem of whether a municipality could undertake the planning, financing and installing of sewers where a sewerage authority had been established pursuant to N. J. S. A. 40:14A-1 et seq. It was held that a sewerage authority has the full and exclusive power to undertake the planning, financing and installing of sanitary sewers. Id. at 501. A municipality is absolutely forbidden to undertake such planning, financing and installing of sewers. Id. at 501. In reaching this conclusion the court relied on N. J. S. A. 40:14A-29, which has a substantially identical counterpart in N. J. S. A. 40:14B-61. In Santoro v. South Plainfield, 57 N. J. Super. 307, 312-13 (Law Div.), which we affirmed in 57 N. J. Super. 498, supra, the trial court found that if a municipality chooses to create a sewerage authority, its powers to provide sanitary sewers are thereby transferred to that authority. Moreover, the court found that it was implicit in this legislation establishing sewerage authorities that they have the exclusive right to deal with the pertinent subject matter to the exclusion of any other body, public, governmental or otherwise. Id. 57 N. J. Super. at 314.

Additionally, we hold that the theory of local assessments is not valid after a utilities authority is created. Landy v. Bellmawr Sewerage Auth., 61 N. J. Super. 396, 399 (App. Div. 1960). In Landy, the court was confronted with a similar community problem, i. e., that those citizens already having sewer facilities would be required to pay a higher service charge for the installation of new sewers unless the local assessment method were utilized.

Therein, the sewerage authority, itself, attempted to assess according to the benefit conferred. The court noted that although a local assessment might be more equitable, in view of previous contributions to the system and of the benefits actually received, it was beyond the statutory power of the authority to prescribe a rate classification according to the user’s location in the community. Id. at 399. The court held that the statute (N. J. S. A. 40:14A-8) required the rates to be uniform “for the same type, class and amount of use or service.” Id. at 400. This rate classification has its counterpart in N. J. S. A. 40:14B-22. It is to be noted that the Sewerage Authority Act, N. J. S. A. 40:14A-1 el seq., and the Municipal Utilities Authorities Act, N. J. S. A. 40:14B-1 el seq., provide for authorities having substantially the same powers, structure and relationship to the municipality with respect to sewer service. Jordan v. Zidel, supra, 40 N. J. at 248.

Although Landy considered the power oi an authority to utilize the local assessment method, we hold that N. J. S. A. 40:14B-1 et seq., and more particularly § 22, makes the logic and reasoning of that ease applicable to a municipality which has created a utilities authority. Thus, we conclude that such a municipality is prohibited from recovering the cost of sewer extensions by the use of local assessments, as was here attempted.

Judgment affirmed.