author: Handler, J. A. D.

text:
    STATE OF NEW JERSEY, EX REL., DEPARTMENT OF HEALTH, PLAINTIFF-RESPONDENT, v. NORTH JERSEY DISTRICT WATER SUPPLY COMMISSION, DEFENDANT AND THIRD-PARTY PLAINTIFF-RESPONDENT, v. CITY OF NEWARK AND PASSAIC VALLEY WATER COMMISSION, THIRD-PARTY DEFENDANTS-APPELLANTS, AND TOWN OF KEARNY, BOROUGH OF GLENRIDGE. TOWN OF MONTCLAIR, TOWN OF BLOOMFIELD, CITY OF PASSAIC, CITY OF PATERSON, CITY OF CLIFTON, THIRD-PARTY DEFENDANTS.
    Superior Court of New Jersey Appellate Division
    Argued October 1, 1973—
    Decided March 8, 1974.

      Before Judges Conford, Handler and Meanor.

      Mr. Donald Coburn, Assistant Corporation Counsel, argued the cause for third-party defendant-appellant City of Few-ark (Mr. William Rossmoore, Assistant Corporation Counsel, on the brief ; Mr. William H. Walls, Corporation Counsel, attorney).

      Mr. Newton M. Roemer argued the cause for third party defendant-appellant Passaic Yalley Water Commission.

      Mr. Albert S. Gross argued the cause for defendant and third party plaintiff-respondent North Jersey District Water Supply Commission.

      Mr. Joseph M. Clayton Jr., Deputy Attorney General, argued the cause for plaintiff-respondent State of New Jersey, ex rel. Department of Health (Mr. George F. Kugler, Jr., Attorney General of New Jersey, attorney).
   The opinion of the court was delivered by

Handler, J. A. D.

This is the sequel to Newark v. N. J. Dept. of Health, 109 N. J. Super. 166 (App. Div. 1970). As directed therein, the court below held a plenary hearing encompassing various issues raised by appellants’ attack upon the order of the State Department of Health (Department) promulgated on January 24, 1966, as well as the implementation thereof as proposed by the North Jersey District Water Supply Commission (Commission or North Jersey). This plan was approved by the Department and concurred in by all of the participating municipalities with the exception of appellants City of Newark (Newark) and Passaic Yalley Water Commission (Passaic Yalley).

The court below determined upon cross-motions for partial summary judgment that the participating members were required to contribute to the cost and operation of the proposed filtration plant required by the Department. It also delineated as the remaining questions to be resolved by a hearing: the reasonableness of the proposed filtration plant with respect to its capitalization requirements and the method of payment therefor, computation of the respective contributions of the constituent municipalities, and compensation, if any, to Passaic Valley for damage to or loss of its filtration facilities at Little Falls. Following a full plenary hearing, the trial court entered a judgment which provided:

A. North Jersey District Water Supply Commission is ordered and directed with all possible speed to finance, construct and operate a chemical filtration plant facility in a suitable area at the Wanaque Reservoir Headworks, Wanaque, New Jersey, to serve Newark, Clifton, Daterson, Passaic, Bloomfield, Glen Ridge, Kearny and Montclair, in compliance with the mandate of the State of New Jersey, Department of Health.
B. The cost of financing, constructing and operating said filtration facility be borne and paid for by said constituent members in proportion to their percentage of ownership.
C. The North Jersey District Water Supply Commisison shall he and is hereby authorized and directed forthwith pursuant to the provisions of N. J. S. A. 58 :5-l ct seq. for the purpose of financing, constructing and operating said filtration facility to issue and market its bonds secured by a pledge or lien on its revenues.
D. The North Jersey District Water Supply Commission shall pay to the Passaic Valley Water Commission $650,160, the present fair value of its Totowa Pressure Filtration Plant, as soon as feasible out of the proceeds of the bond issue aforesaid.

To sharpen the focus on this appeal, the essential issues to be resolved may he characterized as follows: (1) whether the determination that there should be a new filtration plant located at the Wanaque headworks was reasonable, in light of the effect thereof upon the interests of Passaic Valley and Newark; (2) whether Passaic Valley and Newark may he compelled to participate in the proposed filtration plant at Wranaque and to contribute a proportionate share of the costs of constructing that facility; (3) whether the award of damages for the loss sustained by Passaic Valley attributable to the anticipated abandonment of its pressure filtration plant at Little Falls was improper or inadequate, and (4) whether the directive that North Jersey could finance the proposed filtration plant through the issuance of its own bonds secured by a pledge or lien on its revenues was improper or invalid.

I

Appellants have taken the position that the proposed filtration facility at the Wanaque headworks “is economically unfeasible and will be disastrous to the owner-municipalities comprising Passaic Valley and to Newark.” This contention is supplemented by the further assertion that Passaic Valley “could readily improve its present facilities to meet and surpass all state standards,” and that Newark could build an “entirely satisfactory” facility in Belleville and should, at the very least, have been given the opportunity “to explore this feasible approach * *

The trial court noted that the only comprehensive study that was undertaken in response to the Department’s order of January 24, 1966 was that submitted by the consulting engineers on January 12, 1968 and accepted by the Department on February 1, 1968. The recommendation as approved by the Department was for a new filtration plant at Wanaque. The court felt compelled, “by the overwhelming evidence” reflected in the engineers’ reports, to approve their recommendations and adopt their findings, noting that such evidence exceeded “clear and convincing standards of proof.” In reaching that ultimate conclusion, the court rejected the alternatives advanced by Passaic Valley and Newark. In effect, it reasoned that their proposals were unfounded and inconsistent with the objectives to be achieved by the plan approved by the Department.

Our independent review of the record lead's us to the same result. In reaching this conclusion we have duly noted that there is some countervailing evidence. We are also mindful of the contentions of appellants, based in some measure upon extra-record references, that the proposed plan to construct a filtration facility at Wanaque is actuated by motives to serve not primarily the demands of the inhabitants of the constituent members of North Jersey but rather to cater to the needs of other municipalities and to abet other projects, such as the proposed Monksville Project. These considerations, however, do not dissuade us that the result reached by the trial court was eminently sound.

Most of the experts expressed the view that the location of a new filtration facility at Wanaque was optimum. Glen H. Abplanalp, a highly qualified expert associated with the engineering firm which had been retained by Passaic Valley and whose report was ultimately approved by North Jersey and the Department, concluded that the best location for the filtration plant was the Wanaque site at the headworks of the system. John Wilford, Chief of the Bureau of Potable Water of the State Department of Environmental Protection, underscored the State’s approval of the engineers’ report as to the location of the filtration plant at the Wanaque head-works. Dean C. Noll, the District’s Chief Engineer, emphasized the need to meet future needs of the northeastern area of the State and that the Wanaque location has the greatest flexibility in that respect. Dr. William Oscar Lynch, a professional engineer who testified for Passaic Valley, recognized that Wanaque was the proper location for the plant (but that Passaic Valley should be adequately compensated) and that such a plant could be more economically run and constructed for less than it would cost to construct or renovate facilities at Little Palls.

Accordingly, we are satisfied that the court’s determination upholding the Department’s decision that a new filtration plant be constructed on the site of the Wanaque headworks was clearly reasonable and firmly based upon substantial evidence.

II

Passaic Valley and Newark assort that they cannot be compelled to participate in the water supply system entailing new filtration facilities to be located at the Wanaque head-works, nor can they be required to share proportionately with other members of North Jersey in the cost of such construction. It is argued that not only is there an absence of statutory and contractual authority to force the cooperation of these objecting municipalities in the proposed facility but that such a mandate would result in an “unconstitutional taking of their property.”

This controversy must be understood in the perspective of the State’s overriding concern and obligation to safeguard the public health. West Caldwell v. Caldwell, 26 N. J. 9, 30 (1958); Dept. of Health v. Owens-Coming Fiberglas Corp., 100 N. J. Super. 366, 381 (App. Div. 1968), aff’d 53 N. J. 248 (1969). This encompasses a comprehensive power, coupled with a correlative duty, to control and conserve the use of its water resources for the benefit of all its inhabitants. Trenton v. New Jersey, 262 U. S. 182, 43 S. Ct. 534, 67 L. Ed. 937 (1923). It is a paramount governmental policy that such water supplies must be pure in quality, and be economically and prudently managed for the benefit of the public. See Collingswood v. State Water Supply Comm'n, 85 N. J. L. 673, 676 (E. & A. 1914). Designed to protect and promote .the general health, safety and welfare, statutes regulating public water resources must be liberally construed to advance and achieve this underlying beneficent policy. Jersey City v. State Water Policy Comm’n, 118 N. J. L. 72, 76 (E. & A. 1937); Newark v. N. J. Dept. of Health, supra, 109 N. J. Super, at 177.

The Legislature has enacted various statutes which give the State regulatory and supervisory authority over the construction and operation of potable water supplies. N. J. S. A. 58:11-1, 2 and 3 provide that no person may distribute or sell water for potable purposes which in the opinion of the Department, is impure or obtained from a source -which is or may become polluted; nor may any person distribute water without first obtaining from the Department approval of the source and approval of detailed plans and specifications for any water treatment facility which the Department may require. N. J. S. A. 58 :11-4 further provides:

The department shall have the supervision of the operation of all water plants with respect to the purity of the supply of potable water furnished thereby, and every person furnishing water for potable use shall comply with any and all orders of the department relating to the purity of such waters. * * *

See also, N. J. S. A. 26 :lA-37(i) and N. J. S. A. 26 :2-65.

The State’s ultimate control over its water resources is also reflected in N. J. S. A. 58 :1-10 whereby the Division of Water Policy and Supply and the Water Policy and Supply Council (which succeeded to the authority of the former State Water Policy Commission pursuant to N. J. S. A. 13:1A-9) "have general supervision over all sources of potable and public water supplies * * * to the end that the same may he economically and prudently developed for public use.”

Through N. J. S. A. 58:5-l et seq. the Legislature created two water supply districts and provided the commissions (one of which is North Jersey) created thereunder with powers sufficient to develop water supplies for any municipality in the State. In the construction of this legislation, it must he borne in mind that the “purity of the state’s potable water supply is * * * a pre-eminent factor” in the proper exercise of such statutory powers. Jersey City v. State Water Policy Comm'n, supra, 118 N. J. L. at 15.

By virtue of this statutory authority North Jersey is enabled to enter into contracts with municipalities for obtaining a water supply or for new or additional water supplies. N. J. S. A. 58 :5-9 to 15. North Jersey is further empowered to carry out its contract with participating municipalities and to that end to construct filtration plants as may be necessary to fulfill its statutory objectives and indeed to exercise “all other powers necessary or proper to provide all of the contracting municipalities * * * with a sufficient water supply * * N. J. S. A. 58 :5—16. After the completion of its water supply plant, works and appurtenances North Jersey remains in sole control and charge thereof. N. J. S. A. 58 :5-24. It also has the power to bring about municipal appropriations necessary to carry out its contract with participating municipalities, N. J. S. A. 58 :5-15; and municipalities may be required to defray the costs of the construction of the water supply system as well as annual operating costs, N. J. S. A. 58 :5-22, 23. In a cognate statute, the Water Transmission Facilities Act, L. 1962, c. 167, N. J. S. A. 58 :5-31 et seq., which 'has an indirect bearing on North Jersey’s statutory powers herein, such costs could include major items of repair or reconstruction. N. J. S. A. 58 :5-34(8). If a municipality fails to make required appropriations, North Jersey has the option of treating the contract as abandoned by that municipality. N. J. S. A. 58 :5-15. No such option, however, is given to contracting municipalities. Additionally, no participating municipality may obtain "any new or additional water supply” outside the system without the consent of North Jersey. li.

Erom this statutory scheme it is not unreasonable to posit an implied power in North Jersey, as a necessary incident to the continued maintenance and operation of its water supply system in accordance with state standards as to quality and purity, to provide not only for major repairs of existing plants but also to furnish additional facilities and improvements at the joint expense of the participating municipalities. Cf. Passaic Valley Sewerage Comm’n v. Paterson, 107 N. J. Super. 436 (Law Div. 1969), aff’d 113 N. J. Super. 148 (App. Div. 1971).

The contracts between North Jersey and the member municipalities, entered pursuant to statute, are not inconsistent with a mutual and binding obligation to cooperate in the construction of additional facilities necessary to ameliorate the quality of the existing water supply in order to conform with state requirements.

The contract, with respect to the original construction of the reservoir and appurtenant facilities, provides:

[TJhe contracting municipality further authorizes and empowers the North Jersey District Water Supply Commission, at the expense of the contracting municipality, as hereinafter provided, to maintain, repair and operate the said reservoirs, dams, works, pipe lines or conduits, when constructed.

The preamble of the 1918 contract between Newark and North Jersey, which is typical, contemplates “the operation and maintenance of said works when completed.” North Jersey is empowered to maintain at the expense of the contracting municipality the entire system when constructed. Most significantly, reflecting its explicit statutory mandate, the contract provides:

And the Commission covenants and agrees with the said contracting municipality to supply the water in the quantities and at the time above set forth, and further agrees to exercise all powers granted by the state laws to remove and prevent pollution, and any expenses incurred thereby shall be considered a part of the cost of operation and maintenance of the works herein provided for.

It is not to bo assumed that these contracts are so inflexible as to leave the parties unable to deal with future contingencies. Cf. North Jersey Dist. Water Sup. v. Newark, 103 N. J. Super. 542 (Ch. Div.), aff’d 52 N. J. 134 (1968); Nelson v. Kearny, 4 N. J. Misc. 157 (Sup. Ct. 1926). Such an interpretation would deprive North Jersey of authority and financial means to provide for major repairs or the replacement or augmentation of facilities necessary to maintain the reservoir and the water supply system in compliance with lawfully adopted standards of purity. Passaic Valley Sewerage Comm’n v. Paterson, supra, 107 N. J. Super, at 440.

We may agree with appellants that the contracts entered into pursuant to N. J. S. A. 58 :5-l et seq. are not directly affected by the additional statutory powers conferred on North Jersey by the Water Transmission Facilities Act. These provisions, however, are in pari materia with the statutory authority governing the relationship between North Jersey and its constituents. The rather explicit authority of the 1962 act to enable North Jersey to construct additional projects, including filtration facilities, relating to the transmission of water made available by the State does not militate against the reasonable and necessary implication of a comparable authority to provide new facilities when needed as an integral part of its present water system. Moreover, we are not persuaded that the contracts, in the light of the operative statutes, as well as the circumstance that later contracts were entered into supplementing the 1918 and 1924 agreements, compel the execution of new agreements before this additional construction — required by the State to continue the proper operation of the present water supply system — can be undertaken.

It is to be emphasised that the proposed filtration plant is clearly not a new water supply project, for which a new contract might arguably be necessary. The engineers’ report itself has characterized “the construction of pretreatment facilities followed by filtration” as being “in addition to * * * existing water treatment facilities.” Indeed appellants do not reject the premise that very substantial physical improvements are required to improve the quality of water in the present water supply system. Rather the quarrel is only over technique and methodology, appellants preferring respectively to build a new filtration plant to service Newark and to upgrade the pressure plant at Little Falls in the case of Passaic Valley. Mindful that the lower court reasonably found on the record no substantial evidence in support of these alternatives, we conclude that the judgment below upholding the order of the Department implementing the plan of North Jersey for the construction of a new filtration plant at Wanaque headworks, with the required participation of its local members, was correct and was consonant with applicable statutory and contractual authority.

Ill

xlppellants contend that just compensation was required since their compulsory participation in the building of “new filtration facilities at the Wanaque headworks constituted an unconstitutional taking of their property” and that the damages awarded by the court below are inadequate.

We do not understand the lower court, in making a damage award to Passaic Valley, to have determined that appellants were entitled to compensation on the theory that what occurred was an inverse condemnation of their property, in particular Passaic Valley’s filtration plant at Little Palis. Nor do we perceive any basis for regarding the plan adopted by the Department as “so economically unsound as to render the shutting down of the Passaic Valley plant an arbitrary taking without just compensation * * Newark v. N. J. Dept. of Health, supra, 109 N. J. Super, at 179. As previously indicated, the contrary conclusion — that the plan is economically sound and reasonable — is amply supported by this record.

The asserted economic injury expected by appellants cannot be equated with a taking of their property. A proper exercise of the police power does not give rise to a right to compensation even though the value of property may consequently be reduced. State v. Mundet Cork Corp., 8 N. J. 359, 371, cert. den. 344 U. S. 819, 73 S. Ct. 14, 97 L. Ed. 637 (1952). It is unquestionably within the State’s police power to control and conserve the use of its water resources for the general welfare. Trenton v. New Jersey, supra, 262 U. S. at 185, 43 S. Ct. 534. To that end, the State may establish standards for potable water quality and direct distributors of potable water to take steps necessary to achieve compliance with those standards. Newark v. N. J. Dept. of Health, supra, 109 N. J. Super, at 176. When the State acts pursuant to the police power to provide safe and adequate potable water supplies through the improvement of existing facilities, including new construction, the consequences to others who are injured or disadvantaged because of the resultant competition or obsolescence of their existing facilities are not such as to require compensation under the State or Federal Constitutions. See Denver v. New York Trust Co., 229 U. S. 123, 142-143, 33 S. Ct. 657, 57 L. Ed. 1101 (1913); Madera Waterworks v. Madera, 228 U. S. 454, 456, 33 S. Ct. 571, 57 L. Ed. 915 (1913). See also Bayshore Sewerage Co. v. Dept. of Environmental Protection, 122 N. J. Super. 184, 207 (Ch. Div. 1973).

Against this backdrop the award of $650,160 to Passaic Yalley as damages or compensation for the abandonment of Passaic Valley’s Little Falls pressure filtration plant was neither unjust nor unfair. The court made this award essentially on the basis of Abplanalp’s testimony, with certain adjustments. It represents the replacement cost of the filtration plant less depreciation.

Passaic Yalley contends that this value is “only a small part of its damages” and “does not take into account the total amount of the loss sustained by Passaic Yalley.” The additional loss, according to Passaic Yalley, is occasioned by the order of the court that it “join the proposed project at the Wanaque headwaters.” Therefore, it reasons that the true and full measure of value must necessarily “include [not only] the value of Passaic Valley’s present plant * * * [but also] the capitalized value of the additional expense it will sustain.”

Passaic Yalley makes much of the reference in the engineering report and the mention by Abplanalp in his testimony that the “capitalized difference in water cost” to Passaic Valley might represent a more equitable approach. Three experts offered by Passaic Yalley utilized a capitalization of expenses approach and estimated damages at $6,108,900, $6,006,900 and $4,812,500, respectively.

We concur in the rejection of these valuations by the trial court on the ground that they were speculative and conjectural. The estimated increased costs to Passaic Valley resulting from its participation in the new Wanaque facility were subject to many variables which were dependent upon several interrelated factors. Their evaluation would entail, according to Abplanalp, considerable comparative studies of the Little Palls plant and the proposed facility, analysis of direct operating expenses and costs of maintenance and administration of the Little Palls plant, the capital costs as well as the operating expenses for any pretreatment facility which would be required at Little Palls, and other like factors. Moreover, as noted by the court, the “capitalized earnings theory expounded and amplified by Passaic Valley’s experts * * * is grounded on assumed facts” which were not otherwise established. These related to improvements which would have to be made to the Little Palls plant in order to satisfy state criteria and potability standards. Por valuation purposes we would agree that the court was on sound footing when it concluded that such improvements of the Little Palls plant were theoretical and probably would not be sufficient to warrant state approval and, therefore, were in the “realm of speculation.”

Thus, in view of the absence of any constitutional or statutory basis for awarding damages as just compensation, and in light of the evidence presented, it would appear that the damages awarded by the court to be paid by North Jersey to Passaic Valley, as an incident to the overall plan for providing acceptable water involving all of North Jersey’s constituent municipalities, was reasonable.

IV

It is contended that error was committed in authorizing North Jersey to issue bonds and pledge anticipated revenues to finance the proposed filtration plant. We may pass the argument that this question was not a trial issue since it involves essentially legal considerations. It was apparently conceived by the- court as a supplementary or additional method for financing the costs of the construction of the proposed filtration plant.

The power to issue bonds in order to finance the construction of needed facilities may be reasonably implied. The. original act, N. J. S. A. 58:5-1 to 30, contains no explicit authority for North Jersey to issue its bonds secured by a pledge of anticipated revenues. N. J. S. A. 58:5-7, however, confers on the Commission all necessary powers incident to corporate bodies. N. J. S. A. 14A :3-1(1) (g) explicitly empowers corporations “to make contracts and guarantees and incur liabilities, borrow money, issue its bonds, and secure any of its obligations by mortgage of or creation of a security interest in all or any of its property, franchises and income * * N. J. S. A. 58:5-9 implies the right of the Commission in its own name to incur necessary indebtedness, subject only to the limitation expressed in N. J. S. A. 58:5-39, that no lien may be placed on physical plant. This specific limitation is imposed by the Water Transmission Facilities Act, L. 1963, c. 167, § 9. It is to be noted that there is no such restriction on the power of North Jersey to issue its own bonds secured by a pledge of anticipated revenues found in this legislation or in the earlier statute. Further, N. J. S. A. 58:5-38 appears to limit the bonding power of a member municipality to the original contract amount, implying that additional expenditures may be financed directly by the Commission by its own bonds secured by anticipated revenues.

It is suggested that the Water Transmission Facilities Act is inapplicable in this context since it refers in general to facilities for the distribution of water made available by the State. As earlier noted, however, this act is in pari materia with the antecedent legislation and in this sense explicates the functions and powers of the Commission. N. J. S. A. 58:5-33 declares the public policy of the State to foster and promote the treatment, filtration and use of water supplies developed by the State. It provides further that public corporations be enabled to finance and construct necessary facilities for the distribution of “water made available by the State to municipalities and persons, pursuant to the provisions of the Water Supply Law.” North Jersey is specifically included. N. J. S. A. 58:5-34(2). And N. J. S. A. 58:5-42 through 51 grants the Commission the broadest powers to pledge its revenues to secure bonds issued for the purpose of carrying out such powers. While the authority thus granted is reasonably clear, it does not, in our view, negative a comparable power vested in the Commission under the earlier legislation. We conclude, therefore, that the trial court properly determined that North Jersey was empowered to issue bonds secured by anticipated revenues in connection with the proposed filtration plant.

Eor the foregoing reasons, the judgment below is affirmed. No costs.

      At the inception of this litigation, and generally throughout the proceedings, reference has been made to the Department of Health, However, all of the functions, powers and duties heretofore exercised by that Department and the Public Health Council relating to water supplies, including the authority vested by chapter 11 of Title 58, N. J. S. A. 58 :11-1 to 48, have been transferred to the Division of Environmental Quality and the Commissioner of the Department of Environmental Protection. L. 1970, e. 33, § 10; N. J. S. A. 13:1D—7.


source: Caselaw Access Project

author: Francis, J. S. C.

license: Public Domain

text:
    BETTY PEASE KRAHMER AND RICHARD DAVID CHALFANT, PLAINTIFFS, v. LARRY L. LUING, MRS. LARRY L. LUING AND JOHN W. HAND, JOINTLY, SEVERALLY AND IN THE ALTERNATIVE, DEFENDANTS.
    Superior Court of New Jersey Chancery Division
    Decided March 12, 1974.

      Mr. Norman L. Zlotnick for plaintiffs (Messrs. Perskie & Callinan, attorneys).

      Mr. Henry Gorelick for defendants Luings (Messrs. Hayman & Gorelick, attorneys).

      Mr. George M. James for defendant Hand.

      Mr. David Romberger for third-party defendant Ogden.
   Francis, J. S. C.

This motion to dismiss the complaint by third-party defendants concerns the alleged pirating of certain residential architectural plans which plaintiffs assert are protected by common law copyright. A copy of the plans and specifications was filed by the property owner, Mrs. Betty Pease Krahmer, in the office of the borough building inspector, as required by borough ordinance. The residence was completed. Thereafter, John W. Hand, the contractor for the Krahmer home, built a second home for defendants Larry L. Luing and his wife from the drawings, plans, blueprints and specif! cations prepared by architect Bichard David OhaJfant for the Krahmer residence. Hand received these plans from defendant A. Gregory Ogden, the local building inspector. Ogden, a licensed architect, made revisions in these plans, but these revisions were minor. Krahmer covenanted in her contract with Hand that the drawings and specifications were the property of her architect. Krahmer also asserts property rights in the drawings and specifications through her participation in the planning of the residence and her contract with Chalfant. Krahmer and Chalfant bring this action based on common law copyright for compensatory and punitive damages, claiming that defendants used their architectural plans without their consent. Defendants contend that plaintiffs lost their property rights in the architectural plans when, although in conformity with the dictates of a building ordinance, they filed these plans with the office of the borough building inspector.

New Jersey extends its common law copyright protection to “literary, dramatic or musical compositions, or designs for works of ornament or utility, planned by the mind of an artist * * Aronson v. Baker, 43 N. J. Eq. 365, 367 (Ch. 1887). An architect’s drawings and specifications clearly fall within the scope of common law copyright protection. Until publication, the common law copyright preserves the architect’s work product from aunauthorizod interference, and he may maintain an action against anyone who uses it without his consent. See generally, Katz, “Copyright Protection of Architectural Plans, Drawings and Designs,” 19 Law and Gontemp. Frols. 224. There can also be no doubt that Krahmer has a protectable property interest in the Chalfant plans as a tenant in common. See Noble v. D. Van Nostrand Co., 63 N. J. Super. 534 (Ch. Div. 1960). The issue thus narrows into the question of whether, under the circumstances here present, plaintiffs made a publication of their architectural plans.

A publication can be either general or limited in scope. If the publication is a limited publication, the restrictions limiting the use of the subject matter to some definite purpose preserve the architect’s common law protection. See Werckmeister v. American Lithographic Co., 134 F. 321, 324, 326 (2 Cir. 1904) (per Townsend, J.); White v. Kimmell, 94 F. Supp. 502 (S. D. Cal. 1950), (per Yankwich, J.), rev’d on other grounds 193 F. 2d 744 (9 Circ. 1952), cert. den. 343 U. S. 957, 72 S. Ct. 1052, 96 L. Ed. 1357. The test is one of intention, i. e., did the act of the architect demonstrate an interest either to abandon his rights in the work or to dedicate it to the public ?

It is a fundamental rule that to constitute publication there must be such a dissemination of the work of art itself among the public as to justify that it took place with the intention of rendering such work common property. [American Tobacco Co. v. Werchmeister, 207 U. S. 284, 299-300, 28 S. Ct. 72, 77 ; 52 L. Ed. 208 (1907)],

The burden of proving that the publication is divestive is on the defendants. New Jersey Dental Society v. Dentacura Co., 57 N. J. Eq. 593 (Ch. 1898), aff’d 58 N. J. Eq. 582 (E. & A. 1899).

The record does not support a finding that plaintiffs intended to render their plans common property by permitting them to he filed in the office of the borough building inspector. The purpose of the requirement of filing plans in a government office is to protect the public from unsafe construction. . Such filing represents a limited publication because the mere filing of plans does “not result in the surrender of any rights inconsistent with such limited purpose.” Shaw v. Williamsville Manor, Inc., 38 A. D. 2d 442, 330 N. Y. S. 2d 623, 625 (App. Div. 1972). “It is not the purpose of the filing requirement to facilitate and permit architectural plagerism, or enable one to obtain free of charge the benefit of another’s work.” Edgar H. Wood Associates, Inc. v. Skene, 347 Mass. 351, 197 N. E. 2d 886, 894 (Sup. Jud. Ct. 1964). “The architect derives no profit from the deposit of his plans with the building department. He does not thereby sell his work and has no intention of dedicating it to the public.” Smith v. Paul, 174 Cal. App. 2d 744, 750, 345 P. 2d 546, 550 (D. Ct. App. 1959). See also, Ashworth v. Glover, 20 Utah 2d 85, 433 P. 2d 315 (Sup. Ct. 1967) Annotation, 77 A. L. R. 2d 1048. No objective intention to make a general publication appears on the record. The few reported cases which favor the defendants’ position simply do not represent the modern or the better view. The Shaw case, cited supra explicitly overrules Wright v. Eisle, 86 App. Div. 356, 83 N. Y. S. 887 (App. Div. 1903). Moreover, it may be noted here that defendant Hand was under an affirmative contractual duty not to copy from these plans without the plaintiffs’ consent.

The issue is also raised whether the erection of the residence described in the architectural plans constitutes such a general publication as will justify a copying of the plans. Performance is not a publication. White-Smith Music Pub. Co. v. Apollo Co., 209 U. S. 1, 28 S. Ct. 319, 52 L. Ed. 655 (1907). “A structure is the result of plans, not a copy of them. It follows that building a structure and opening it to public gaze cannot be a publication of its plans.” Katz, op. cit. at 236. “[T]ho right fully to reproduce plans is a far more substantial aid to a builder unwilling to pay for architectural services than the right to make sketches or drawings of a completed structure.” Edgar H. Wood Associates, Inc. supra, 197 N. E. 2d at 895. “Here the architect limited the use of his plans both as to the persons allowed to use the work [Mrs. Krahmer and her agent the builder] and to the use which such persons might make of the work [the construction of one house].” Smith, supra; 77 A. L. R. 2d at 1047. These limitations as to persons and use meet the test of a limited publication. Of course, the interior or exterior is copyable by anyone with sufficient draftsmanship abilities. But construction of the residence is not a general publication of the architect’s plans, drawings, blueprints and specifications; in short, his work product. See also, Tabor v. Hoffman, 118 N. Y. 30, 23 N. E. 12 (Ct. App. 1889).

The cases and authorities cited by defendant are not persuasive. See Gendell v. Orr, 13 Phila. 191 (C. P. 1879); Kurfiss v. Cowherd, 233 Mo. App. 397, 121 S. W. 2d 282 (Ct. App. 1938). Commentators have sharply criticized the application of the performance rule to the field of architectural plans. See Note, 34 St. John's L. Rev. 326 (1960); Note, 73 Harv. L. Rev. 1391 (1960). But the fear that such application would result in “perpetual common law protection of unspecified scope to the work of the architect and to remove a majority of structures from the public domain,” 73 Harv. L. Rev. at 1391, has proven to be unfounded. Moreover, federal copyright protection for published materials (17 U. S. C. A. § 1 et seq.) does not require the divestment of common law copyright protection for unpublished materials.

For the foregoing reasons, the motion to dismiss the complaint will be denied. Order accordingly.


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

text:
    CEMETERY WORKERS AND GREENS ATTENDANTS UNION, LOCAL 365, SERVICE EMPLOYEES INTERNATIONAL UNION, AFL-CIO, AN UNINCORPORATED ASSOCIATION, PLAINTIFF-RESPONDENT, v. ROMAN CATHOLIC DIOCESE OF NEWARK, A NEW JERSEY CORPORATION, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued December 11, 1973—Supplemental Memoranda Received January 2, 1974—
    Decided March 21, 1974.

      Before Judges Kolovsey, Fritz and Crane.

      Mr. Joseph A. Clarken, Jr. argued the cause for appellant (Messrs. Fox, Schackner, Neagle, Mastrangelo & Gassert, attorneys).

      Mr. Abraham L. Friedman argued the cause for respondent (Messrs. Boihbard, Harris & Oxfeld, attorneys; Mr. Emil Oxfeld, of counsel).
   The opinion of the court was delivered by

Kolovsky, P. J. A. D.

Defendant Roman Catholic Diocese of Newark owns and operates seven cemeteries within the geographic limits of the Diocese. Plaintiff is a labor union representing production and maintenance employees of defendant at defendant’s Holy Cross Cemetery in North Arlington, New Jersey. After the Regional Director of the National Labor Relations Board refused to assert jurisdiction and dismissed plaintiff’s representation petition, plaintiff filed a verified complaint in the Chancery Division seeking a judgment requiring defendant to bargain collectively with it.

The matter came before the trial court on the adjourned return date of the order to show cause which issued on the filing of the complaint. Both counsel expressly disclaimed any need for oral testimony on the critical issue of whether the unit plaintiff allegedly represented was an appropriate unit for the purpose of collective bargaining. After hearing argument, the court resolved that issue in plaintiff’s favor on the basis of a record consisting only of the verified complaint, defendant’s answer and answering affidavit and interrogatories propounded by plaintiff and answered by defendant. An order was entered on October 24, 1972 adjudging that:

The following employees of defendant constitute a unit appropriate for the purposes of collective bargaining, to wit:
All production and maintenance employees, including grave diggers, mechanics, all machine operators, chauffeurs and greens keepers employed by the defendant in the conduct of the Holy Cross Cemetery at 340 Bidge Boad, North Arlington, New Jersey, and excluding all office clerical employees, professional employees, guards and supervisors.

and directing that a secret ballot election be conducted among those employees by the New Jersey State Board of Mediation to determine whether or not they desired “to be represented for collective bargaining purposes” by plaintiff.

After an application for a stay was denied, the election was held, with plaintiff being certified by the Mediation Board as having received a majority of the votes cast. The judgment entered on March 2, 1973 repeated the determination quoted above as to what constituted an appropriate bargaining unit, certified plaintiff as “the sole and exclusive bargaining representative of the employees” in that bargaining unit and directed defendant to “bargain with plaintiff as the sole and exclusive representative of its employees in the aforesaid bargaining unit.”

Defendant appeals, contending that the trial court erred in concluding that defendant’s production and maintenance employees at Holy Cross Cemetery constituted a “unit appropriate for the purposes of collective bargaining.” Defendant argues that the proofs before the court do not support that conclusion. Defendant recognizes that “the test is not whether the unit sought is the most appropriate unit possible, but rather whether said unit is in fact an appropriate unit,” Bowman, et al. v. Hackensack Hospital Assoc., 116 N. J. Super. 260, 277 (Ch. Div. 1971), but argues that the proofs mandated the inclusion in the unit of the production and maintenance employees at all seven cemeteries owned and operated by it in' order for the unit to be in fact an appropriate unit for collective bargaining with defendant.

While decisions of the National Labor Relations Board (N. L. R. B.) and of the federal courts in cases arising under the Labor Management Relations Act of 1947, 29 U. S. C. A. sec. 141 et seq. are not binding when our courts are called upon to decide cases in the area of labor relations, Cooper v. Nutley Sun Printing Co., Inc., 36 N. J. 189, 200 (1961), we may properly look to those decisions for guidance in resolving questions arising in that area, and particularly the question of what constitutes an appropriate bargaining unit. This is true even in cases of employment which are expressly excluded from the jurisdiction of the N. L. R. B.. e.g. employments in a non-profit hospital, see Johnson v. Christ Hospital, 84 N. J. Super. 541 (Ch. Div. 1964), aff’d 45 N. J. 108 (1965) and Bowman et al. v. Hackensack Hospital Assoc., 116 N. J. Super. 260 (Ch. Div. 1971).

It is even more desirable that we seek guidance from those decisions in cases where, as here, the controversy is within the jurisdiction of the N. L. E. B. but that Board, in the exercise of the discretion granted it and for reasons unrelated to the merits of the dispute, has refused to assert jurisdiction.

We may start with the analysis made in N. L. R. B. v. Metropolitan Life Insurance Company, 380 U. S. 438, 85 S. Ct. 1061, 13 L. Ed. 2d 951 (1965) of the applicable provisions of the Federal statute:

Section 9 (b) of the National Labor Relations Act, 49 Stat. 453, as amended, 29 U. S. C. § 159 (b) (1958 ed.) provides:
“The Board shall decide in each case whether, in order to insure to employees the fullest freedom in exercising the rights guaranteed by this subchapter, the unit appropriate for the purposes of collective bargaining shall be the employer unit, craft unit, plant unit, or subdivision thereof *
This broad delegation of authority, see Pittsburgh Glass Co. v. National Labor Relations Board [313 U. S. 146, 61 S. Ct. 908, 85 L. Ed. 1251 (1941)], was limited in 1947 by the enactment of § 9 (c) (5) of the Act, 61 Stat. 144, 29 U. S. C. § 159 (c) (5) (1958 ed.), which provides that “[i]n determining whether a unit is appropriate for the purposes specified in subsection (b) of this section the extent to which the employees have organized shall not be controlling.” Although it it clear that in passing- this amendment Congress intended to overrule Board decisions where the unit determined could only he supported on the basis of the extent of organization, both the language and legislative history of § 9(c)(5) demonstrate that the provision was not intended to prohibit the Board from considering the extent of organization as one factor, though not the controlling factor, in its unit determination. [380 U. S. at 441-442, 85 8. Ct. at 1063].

The federal eases involving review of N. L. R. B. decisions

recognize that in determining appropriate bargaining units “a wide discretion lias been vested in the Board,” N. L. R. B. v. Belcher Towing Co., 5 Cir. 1960, 284 F. 2d 118, 120, and that this court may not “displace the Board’s choice between two fairly conflicting views, even though the court would justifiably have made a different choice had the matter been before it de novo.” Universal Camera Corp. v. N. L. R. B., 1951, 340 U. S. 474, 488, 71 S. Ct. 456, 465, 95 L. Ed. 456. [N. L. R. B. v. Davis Cafeteria, Inc., 396 F. 2d 18, at 19-20 (5 Cir. 1968)].

However, where the court finds that the Board’s decision is not supported by substantial evidence, or fails to clearly articulate the basis of its determination as to an appropriate unit, cf. N. L. R. B. v. Metropolitan Life Insurance Co., supra, its order will not be enforced.

Further, an N. L. R. B- determination as to an appropriate unit will be deemed invalid where it appears that, contrary to the proscription of 29 U. S. C. A. sec. 159 (c) (5) — referred to in the quotation from N. L. R. B. v. Metropolitan Life Insurance Co., supra — the Board improperly allowed the extent of the employees organization to be controlling. Cf. N. L. R. B. v. Western and Southern Life Insurance Company, 391 F. 2d 119, 121 (3 Cir. 1968), cert. den. 393 U. S. 978, 89 S. Ct. 445, 21 L. Ed. 2d 439 (1968).

As noted in 48 Am. Jr. 2d, Labor and Labor Relations, sec. 446, p. 326 (19-70) :

In applying [the statutory guide as to what constitutes an appropriate bargaining unit] the NLRB has traditionally looked to such factors as the community of interest among the employees sought to be represented; whether they comprise a homogeneous, identifiable, and distinct group; whether they are interchanged with other employees ; the extent of common supervision; the previous history of bargaining; and the geographic proximity of various parts of the employer’s operation.
* * * [B]ut the NLRB’s decisions on appropriate bargaining units cannot be generalized, and no generalizations should be attempted. There may be more than one way in which employees of a given employer may appropriately be grouped for purposes of collective bargaining. Moreover, the NLRB is not bound by its statements in earlier cases as to the appropriateness of a particular bargaining unit. Prior NLRB unit determinations in other cases have precedential value only in the sense that they disclose facts that the NLRB has previously considered relevant.

Where the situation is one in which an employer has several plants, it has been held proper for the Board to include the maintenance and production employees in the separate plants in a single bargaining unit “where labor policies are centrally adopted and there is similarity in wages, hours, W'orking conditions and manufacturing processes.” 48 Am. Jur. 2d, supra, sec. 450, p. 329; Pittsburgh Plate Glass Co. v. National Labor R. Board, 313 U. S. 146, 61 S. Ct. 908, 85 L. Ed. 1251 (1941); reh. den. 313 U. S. 599, 61 S. Ct. 1093, 85 L. Ed. 1551 (1941); Annotation, “Labor-BargmningSeparate Plants,” 12 A. L. R. 3d 787 (1967).

However, in N. L. R. B. v. Western and Southern Life Insurance Company, 391 F. 2d 119 (3 Cir. 1968), cert. den. 393 U. S. 978, 89 8. Ct. 445, 21 L. Ed. 2d 439 (1968), upon which plaintiff places substantial reliance in its argument in this case, it was held that it was proper to include only the employees at one district office of a life insurance company in the bargaining unit where it appeared that:

Each of the Company’s district offices functions as an entirely autonomous unit vis-a-vis the other Company district office. There is virtually no interchange of employees between the district offices, no overlap of territories, nor any other type of communication or exchange between them. Under the strict hierarchy of authority established by the Company, the district office manager and his assistants function as the first line of management. Although their discretion is limited by the considerable final authority vested in their superior, the Division Superintendent, the Board drew a permissible conclusion from the record, including Company manuals, that the district managers have “considerable leeway within the broad outlines of company policy to implement” the Company’s business program. [391 F. 2d at 122]

On this background, we turn to a consideration of the facts in this case and whether they support the trial court’s determination — without an articulation of the reasons therefor —■ that “all production and maintenance employees * * * employed by the defendant in the conduct of the Holy Cross Cemetery, * * * North Arlington” constitute a unit appropriate for the purposes of collective bargaining.

As we have already noted, the parties expressly disclaimed any desire to offer oral testimony, plaintiff choosing to rely solely on the verified allegations of its complaint and defendant’s answer to interrogatories and defendant relying solely on the statements embodied in the affidavit of its Director of Cemeteries. Therefore we are not called upon to give deference to the findings of the trial judge since, in the absence of oral testimony, his findings could not have been “influenced by his opportunity to hear and see the witnesses and to have the feel’ of the case.” State v. Johnson, 42 N. J. 146, 161 (1964).

The proofs relevant to the issue of what constituted an appropriate bargaining unit were limited to the following:

(1) The following statements in the affidavit made by defendant’s Director of Cemeteries:

2. I am tlie Director of Cemeteries and charged with the responsibility of supervising all cemeteries owned and operated by the Roman Catholic Diocese of Newark and the Diocesan Cemetery Office is located in the Diocesan Chancery Building at #31 Mulberry Street, Newark, New Jersey.
3. The Roman Catholic Diocese of Newark owns and operates as a single corporate entity 7 cemeteries within its geographic limits, namely, (1) Gate of Heaven; (2) 1-Ioly Name; (3) St. Peter’s; (4) Saint Gertrude’s; (5) Holy Sepulchre; (6) Holy Cross and (7) Christ the King.
4. All conditions of employment at the 7 cemeteries for the classifications of employees mentioned in the Complaint are the same and are fixed by me in my capacity as Director of Cemeteries, including salaries, fringe benefits, hours and conditions of employment, rules, regulations and discipline. All such employees in the 7 cemeteries mentioned above are hired by the Roman Catholic Diocese of Newark and are paid by it.
5. Employees and equipment can be transferred from one cemetery to another if conditions require such transfers, and such transfers have occurred in the past.

(2) The statements in plaintiff’s verified complaint that defendant

among other enterprises, owns and operates Holy Cross Cemetery at 340 Ridge Road, North Arlington, New Jersey, in the operation of which it employs approximately 58 employees who may be classified as production and maintenance employees, including grave diggers, mechanics, machine operators, chauffeurs and grounds keepers, excluding supervisors and all other categories;

that plaintiff had been “designated by an overwhelming majority of the aforesaid group of employees of defendant at said Holy Cross Cemetery as their collective bargaining representative”; and that defendant had refused to recognize plaintiff as the collective bargaining representative of those employees.

(3) The following answer given by defendant to interrogatories asking the names and addresses of employees who had been transferred from one cemetery to another “since January 1, 1911”:

None, because conditions did not require any sucli transfers during tiiis period. Under defendant’s policy such transfers would have been made, however, as often as necessary if conditions had required same.

The last quoted answer may be deemed to weaken the weight to be given to the statement made in paragraph 5 of the affidavit of defendant’s Director of Cemeteries. But none of the other statements made in that affidavit were challenged by plaintiff.

The fact that the employees at the Holy Cross Cemetery in North Arlington have chosen plaintiff as their representative is not controlling although it is a factor to he considered. N. L. R. B. v. Metropolitan Life Insurance Company, supra. The only other factors furnishing any support for a holding that the employees at the Holy Cross Cemetery constitute an appropriate unit are the geographical separation of that cemetery from the other six owned and operated by defendant and the fact that, for a period of one and a half years, no employee has been transferred from one cemetery to another, this despite defendant’s statement — which stands uncontradieted — that employees and equipment can be transferred from one cemetery to another.

However, in our view, those three factors taken together do not, in face of defendant’s uncontradicted proofs, warrant or support a determination that the employees at the Holy Cross Cemetery constitute an appropriate bargaining unit.

Defendant’s proofs established that its cemeteries are operated and conducted as a single enterprise. All are supervised by a single Director of Cemeteries. Unlike the situation in N. L. R. B. v. Western and Southern Life Insurance Company, supra, on which plaintiff relies, none of the cemeteries functions as an autonomous unit vis-a-vis the other cemeteries. On the contrary, all are controlled and directed from a single office; and all conditions of employment, including salaries, fringe benefits, hours, and rules and regulations governing employees, are the same at all seven cemeteries.

In those circumstances, we conclude that the production and maintenance employees at all seven cemeteries have such a community of interest that a bargaining unit which does not include all those employees is not an appropriate unit for collective bargaining.

The judgment is reversed and judgment entered in favor of defendant. Fo costs to either party.


author: Per Curiam.

text:
    STATE OF NEW JERSEY, PLAINTIFF-APPELLANT, v. ANTHONY RUSSO, HENRY DE BENEDICTIS, EMIL MENSORIO, PERRY IOMMAZZO, WILLIAM CHIANDUSSE, ARTHUR CORA, RICHARD DAVIDSON, DAVID DE PALMA, DAVID EDELMAN, THOMAS FORMOSO, MICHAEL MULLINS, ANNA NICKAS AND BERNARD TEMEL, DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued February 25, 1974—
    Decided March 26, 1974.

      Before Judges Collester, Lyech and Michels.

      Mr. James A. Mayer, Assistant Prosecutor, argued the cause for appellant (Mr. Alfred L. Genton, Acting Bergen County Prosecutor, attorney).

      Mr. Anthony A. Kress argued the cause for respondents Perry Iommazzo and Arthur Cora.

      Mr. James D. Checki, Jr. argued the cause for respondent Richard Davidson (Messrs. Checki & Politan, attorneys).

      Messrs. Ryan & Sommers, attorneys for respondent Emil Mensorio, join in the brief of respondent Richard Davidson.
   Per Curiam.

Defendants were indicted for conspiracy to violate the gambling laws and separately indicted for various substantive gambling offenses. The indictments resulted in part from tape recorded conversations following the wiretapping of six telephones during January 1973 which was authorized by the court pursuant to N. J. S. A. 2A :156A-1 et seq. The conversations were recorded on 57 tapes covering a period of over 102 hours and included both irrelevant as well as allegedly incriminatory conversations.

Following a pretrial conference the court ordered that the State disclose and make available to defendants copies of all tapes to be played in the presence of the State’s representatives, that all defendants should have the right to take notes thereof stenographically or otherwise and make duplicate recordings of the conversations at their own expense. The order further directed that the State transcribe all of the tapes which the State intends to use at the trial and to furnish copies thereof to defendants’ attorneys. In addition the court, over the State’s objection, ordered that all the tape recordings taken by the State during January 1973 be transcribed in full (including both irrelevant and allegedly incriminatory conversations) and that copies thereof be furnished to the defendants’ attorneys. We granted the State’s motion for leave to appeal.

The State has prepared composite “work copies” of portions of the original tapes containing relevant and incriminatory conversations which it intends to offer in evidence at trial as proof of the crimes charged and will provide defense counsel with transcripts thereof. However, it contends the court exceeded the bounds of judicial discretion in directing that transcripts of all conversations recorded on the 57 tapes be furnished to the defendants. The State estimates that transcripts of the 102 hours of recorded conversations, which contain irrelevant conversations, will consist of 5,000 pages at an estimated cost of over $5,000. It argues that the rules of discovery do not require that transcripts of all the tapes should be furnished to defendants and also that defendants can have access to such tapes and make such copies as they require at their own expense.

R. 3:13-3 (a) provides that the prosecutor shall permit defendant to inspect and copy and photograph, inter alia, specified documents, statements, records and reports. It does not require the prosecutor to furnish at the State’s expense transcripts of taped conversations which are irrelevant, immaterial and nonincriminatory. Defendants, in the instant case, can under the terms of the order have access to all the tape recordings and make copies thereof at their own expense. While broad discretion is vested in the trial judge to permit access to relevant portions of intercepted communications, State v. Dye, 60 N. J. 518, 533 (1972), we are satisfied that the trial judge mistakenly exercised such discretion in directing the State to provide transcripts of all conversations recorded on the tapes.

[Reversed.


author: Pee Curiam.

text:
    IN THE MATTER OF THE TRANSFER INHERITANCE TAX ASSESSMENT IN THE ESTATE OF GEORGE TALAKOWITSH, SONJA TALAKOWITSH, EXECUTRIX OF THE ESTATE OF GEORGE TALAKOWITSH, DECEASED, APPELLANT, v. SIDNEY GLASER, DIRECTOR OF THE NEW JERSEY DIVISION OF TAXATION AND NICHOLAS G. MAIDA, STATE SUPERVISOR OF THE NEW JERSEY INHERITANCE TAX BUREAU, RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Submitted December 3, 1973—Resubmitted March 25, 1974—
    Decided March 26, 1974.

      Before Judges Collester, Lynch and Michels.

      Frankel & Frankel, attorneys for appellant (Mrs. Esther S. Frankel, on the brief).

      Mr. George F. Kugler, Jr., Attorney General, attorney for respondents (Mr. Stephen Skillman, First Assistant Attorney General, of counsel; Mr. Michael E. Goldman, Deputy Attorney General, on the brief).
   Pee Curiam.

This is an appeal from a decision of the Transfer Inheritance Tax Bureau (Bureau) concerning the amount of allowable deduction for executor’s commissions in determining the inheritance tax in the estate of George Talakowitsh. The issue is whether, in the absence of a court allowance of executor’s commissions, the Director of the Division of Taxation (Director) may prescribe by regulation the amount of the allowable deduction for such commissions. We are not concerned with the actual amount which the executor may receive as commissions. We are rather concerned only with the amount thereof which may be used as a deduction for purposes of computing the inheritance tax.

The Director argues that, if he could not limit the allowable deduction as to such commissions, in the absence of a Probate Court’s allowance of commissions, taxes could easily be evaded. As he points out, it is not uncommon for one to leave his entire estate to one beneficiary, or a few closely related beneficiaries, and name a beneficiary as executor. In such instances the executor-beneficiary could easily evade inheritance taxes on his share of the estate by taking that share as “commissions,” and thus be able to claim deduction for what in reality is an inheritance.

Pursuant to the power granted to the Director by N. J. S. A. 54:50-1, and in accordance with the Administrative Procedure Act, the Director promulgated N. J. A. C. 18:26-7.10, outlining the method of calculation of executor’s commissions which may be allowed as a deduction. So far as pertinent here said regulation excludes from such deduction (a) the value of real property, and (b) jointly held property.

Decedent left a gross estate of $87,513.91. Included in that sum was the value of decedent’s homestead ($40,900) and the value of jointly held property ($12,001.35). Pursuant to N. J. A. C. 18:26-7.10, the Bureau excluded the total value of such property ($52,901.35) from the gross estate in calculating the permissible deduction for executor’s commissions, thus:

Net Estate $87,513.91

Less: real property $40,900

jointly held property 12,001.35 52,901.35

Assets in possession of executrix $34,612.56

Executrix’ commission at 5% 1,730.63

The Estate disputes the right of the Director to exclude the value of the real property and jointly held property as provided by his regulation N. J. A. C. 18 :26-7.10(c) and (d).

To arrive at the “clear market value” of the property transferred at death, the Inheritance Tax Law allows certain deductions, including “(c) The ordinary expenses of administration, including the ordinary fees allowed executors and administrators and the ordinary fees of their attorneys * * N.J.S.A. 54:34-5(c). It was to determine what are "ordinary” fees, in the absence of a court determination thereof, that the Director promulgated his regulations. The executrix here argues that N. J. S. A. 3A:10-2 allows her 5% on estate assets up to $100,000 and that N. J. S. A. 3A:10-3 allows commissions on real estate when a fiduciary comes into possession of real estate which is not sold during the administration of the estate. Therefore, she argues the Director’s regulation contravenes the statute, and that he had no authority to exclude the real estate and jointly held property up to $100,000, and particularly the real estate which came into her possession and was not sold during the administration of the estate.

The Director contends that N. J. S. A. 3A :10-3 is permissive in character and not mandatory, for all the statute says is that the court “may,” and is not bound to, allow commissions on the reasonable value of real estate coming into the fiduciary’s hands under the circumstances here. Wo agree. 7 N. J. Practice (Clapp, Wills & Administration), § 1530 at 228-29 (1962).

This is not a suit to recover executor’s commissions. This is an inheritance tax case. The executrix is the sole beneficiary of the estate. There is but one question: what are “ordinary” fees which under N. J. S. A. 54:34-5 (c) may be deducted for inheritance tax purposes? The Director’s regulation determines what such “ordinary” fees are. We hold that the promulgation of N. J. A. C. 18 :26-7.10 is a reasonable regulation to prevent evasion of taxes on the value of property which the executrix inherited and was well within the authority of the Director to promulgate. See In re Hack, 103 N. J. Eq. 207 (Prerog. 1928), as to the State Comptroller, the Director’s predecessor.

The determination of the Transfer Inheritance Tax Bureau is affirmed.


text:
    JOHN J. POWERS, PLAINTIFF-APPELLANT, v. UNION CITY BOARD OF EDUCATION, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued March 18, 1974—
    Decided March 28, 1974.
    Before Judges Leonard, Allcorn and Crahay.

      Mr. Richard A. Levin argued the cause for appellant (Messrs. Amster & Levin, attorneys).

      Mr. Stephen G. Weiss argued the cause for respondent (Messrs. Greenwood, Weiss & Shain, attorneys).
   Per Curiam.

The judgment under review is affirmed essentially for the reasons stated by Judge Larner in his opinion reported at 124 N. J. Super. 590 (Law Div. 1973).

Affirmed.


text:
    IN THE MATTER OF THE ADOPTION OF REGULATIONS FOR ELECTRICAL INSPECTION AUTHORITIES (PUBLIC UTILITIES COMMISSION DOCKET NO. 725-438). MUNICIPAL ELECTRICAL INSPECTORS ASSOCIATION OF NEW JERSEY, PETITIONER-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued January 8, 1974—
    Decided March 18, 1974.

      Before Judges Kolovsky, Fritz and Crane.

      Mr. Patrick D. Healy argued the cause for appellant (Messrs. Healy & Falk, attorneys; Mr. Andrew M. Smith, Jr., on the brief).

      Mr. Joseph W. Ferraro, Jr., Deputy Attorney General, argued the cause for respondent Board of Utility Commissioners (Mr. George F. Kugler, Jr., Attorney General of New Jersey, attorney).

      Mr. John S. Fields argued the cause for respondent Middle Department Inspection Agency (Messrs. Hyland, Davis & Reberkenny, attorneys).

      Mr. Daniel J. Lyons, Jr. argued the cause for respondent Middle Atlantic Electrical Inspections, Inc.

      Mr. Lawrence S. Schwartz argued the cause for respondent Garden State Electrical Inspection Service, Inc.

      Mr. Sheppard A. Guryan argued the cause for respondent Keystone Electrical Inspection Service, Inc. (Messrs. Lasser, Lasser, Sarokin & Hochman, attorneys; Mr. Richard W. Vallario, on the brief).
    No briefs were filed on behalf of respondents National Electrical Contractors Association (Northern New Jersey and Southern New Jersey Chapters), Public Service Electric and Gas Company, and Jersey Central Power & Light Company.
   The opinion of the court was delivered by

Kolovsky, P. J. A. D.

This appeal attacks the validity of the several provisions of a regulation adopted by the Board of Public Utility Commissioners (Board) on April 12, 1973 which purport to regulate, control and limit the powers of municipalities and counties, and electrical inspectors appointed by them, with respect to electrical inspections.

All parties agree that “electrical inspection” may properly be defined, as it is in the regulation, as “the act of investigating electrical construction, for the purpose of certifying conformance of such construction with applicable codes and regulations.” Such compliance is obviously of concern not only to the public generally but also to the utility which is to furnish electricity and to the insurance company which may furnish insurance coverage on the structure.

Indeed, it is evident, from the legislation which first specifically authorized municipalities and counties to appoint electrical inspectors, that historically such public utilities and fire insurance companies required certificates of inspection from agencies approved by them before proceeding, respectively, to furnish electricity or to issue policies of insurance.

A chronological analysis of the statutes relating to the inspection of electrical work is necessary to an understanding and the resolution of the issues presented by this appeal.

We start with L. 1912, c. 271, as amended by L. 1923, c. 152, and supplemented by L. 1953, c. 69 (N. J. S. A. 40: 173-1 through 3.2). Section 1 of the statute authorized “cities” to adopt ordinances

* * * for the regulation and inspection of wires, conductors and appliances for the purpose of utilizing electrical energy for light, heat and power when introduced or placed in any building in such city; provided, however, that such regulation and inspection shall not be inconsistent with the current issue of the national electrical code and the rules and regulations for wiring of the corporation, firm or individual by which the electrical energy is to be supplied, or the existing standards of the board of public utility commissioners. After the passage of such ordinance no person, firm or corporation shall put in use any electrical wires, appliances or currents for the purposes aforesaid, which shall not have been inspected and approved by the inspector of such city appointed for such purpose. [Emphasis added]

The section also requires the ordinance to prescribe: (1) the method of “location, arrangement, installation and use of such wires and appliances”; (2) the duties of the inspector which section 2 authorizes the city to appoint; and the fee, not exceeding $50, to be paid for the inspection and the issuance of a certificate of inspection.

Section 2, authorizing the appointment of the inspectors by the city’s governing body, provides that they “shall have a practical and technical knowledge of the construction and operation of interior electrical wiring and appliances.”

Section 3 provides that upon the passage of such an ordinance, it shall be unlawful for any electrical utility company or insurance company to require or charge for an inspection other than that certified to by the city’s inspector as a condition for supplying electricity or for insuring the building. Enforcement of the latter prohibitions is delegated to the Board of Public Utility Commissioners and the Department of Banking and Insurance, respectively.

Contrary to what appellant argues, the statutory authorization for such ordinances applies not to all municipalities but “only * * * to municipalities classified as cities.” Independent Electricians, etc. Ass’n of N. J. v. Bd. of Examiners, Elec. Contr’rs, etc., 48 N. J. 413, 422, fn. 1 (1967).

In 1929 a similar statute (L. 1929, c. 339, N. J. S. A. 40: 23-20 through 25) was enacted authorizing counties to adopt, by resolution, similar provisions for the regulation and inspection of electrical installations in any building in the county, the county being barred however from exercising such jurisdiction in any city which may have adopted the provisions of the 1912 statute above described. In all other respects the 1929 act was substantially identical with the 1912 act.

Thus, except in cities which had adopted ordinances pursuant to the 1912 statute and in counties which had adopted resolutions pursuant to the 1929 act, the situation was exactly as it was prior to the enactment of those statutes — electric utility companies and insurance companies were free to require certificates of inspection from their own representatives or from agencies approved by them before, respectively, furnishing electricity or issuing a policy. In cities or counties which had taken advantage of the 1912 or 1929 acts, electricity could not be furnished until a certificate had been issued by the appropriate governmental inspector.

The situation was not changed by the enactment of the Electrical Contractors Licensing Act of 1962, L. 1962, c. 162, amended by L. 1962, c. 185 (N. J. S. A. 45:5A-1 et seq.). The principal purpose of that act was to provide for the licensing of, and issuing of business permits to, electrical contractors by a State Board of Examiners of Electrical Contractors. See Independent Electricians, etc., Ass’n of N. J. v. Bd. of Examiners, Elec. Contr’rs, etc. 48 N. J. 413 (1967) and Independent Electricians, etc., Ass’n of N. J. v. N. J. Bd. of Examiners, etc., 54 N. J. 466 (1969).

The 1962 Licensing Act recognized the continued viability of at least the 1912 statute above referred to, except as the latter statute may have included the power to license electrical contractors. So N. J. S. A. 45 :5A-17 provides:

(a) This act shall not deny to any municipality the power to inspect electrical work or equipment or the power to regulate the standards and manner in which electrical work shall be done but no municipality shall require any business permit holder or electrical contractor licensed under this act to obtain a municipal license or business permit to engage in the business of electrical contracting in such municipality.
(b) Any licensee or business permit holder who willfully fails to comply with any municipal ordinance concerning the inspection of electrical work shall be guilty of a violation of this act.

“Any municipality,” as used in the quoted section, obviously includes a city which invokes the 1912 statute. Whether it also includes a county which invokes the 1929 act presents a debatable question, particularly since N. J. S. A. 1 :l-2 provides:

Unless it be otherwise expressly provided or there is something in the subject or context repugnant to such construction, the following words and phrases, when used in any statute and in the Revised Statutes, shall have the meaning herein given to them.
Municipality: municipal corporation. The words “municipality” and “municipal corporation” include cities, towns, townships, villages and boroughs, and any municipality governed by a board of commissioners or an improvement commission.

The question is one of legislative intent. In our view, the subject and context of the quoted section indicates that here the legislative intent was that the provisions of N. J. 8. A. 45 :5A-17 should apply to all governmental units, i. e., cities and counties which, with statutory authorization, provide for electrical inspections—whether it be a city under the 1912 act or a county under the 1929 act—and that therefore the word “municipality” should be construed to include a county. Of. the following cases in which the word “municipality” as used in a statute was construed to include a county. Union Stone Co. v. Hudson County Freeholders, 71 N. J. Eq. 657, 663-665 (Ch. 1906); Herman & Grace v. Essex County Freeholders, 71 N. J. Eq. 541, 543-544 (Ch. 1906), aff'd o. b. 73 N. J. Eq. 415 (E. & A. 1907); Murphy v. Hudson County Freeholders, 91 N. J. L. 40 (Sup. Ct. 1917).

By L. 1971, c. 244, the Legislature adopted various amendments to the Electrical Contractors Licensing Act of 1962. One section of the 1971 act amended section 16 (N. J. S. A. 45:5A-16), listing the grounds for which the Board might refuse to grant or suspend or revoke any license or business permit. Included among new grounds were the following:

(g) [failure! to secure inspection of electrical construction by an inspection authority approved by the Board of Public Utility Commissioners or otherwise provided by law; or
(h) [failure] to perform electrical construction in conformance with standards of the National Electrical Code then in effect and the standards, if any, of the municipality wherein such work is performed. [Emphasis added]

The 1971 act, in sections 2 and 3 thereof, also added two new sections to the original act, reading as follows:

2. The Board of Public Utility Commissioners of the Department of Public Utilities shall approve all electrical inspection authorities for inspection of electrical construction work by an electrical contractor licensed under the provisions of P. L. 1962, c. 162 [N. J. S. A. 45:5A-1 et seg.] The Board of Public Utility Commissioners is authorized to promulgate all rules and regulations necessary to effectuate the purposes of this act.
3. All electrical inspection agencies approved by the Public Utilities Commission shall be accepted by electrical utilities for electrical inspection work in the State of New Jersey.

It is essential to recognize that the last two sections, although now appearing in N. J. S. A. under Title 48, “Public Utilities”, as N. J. S. A. 48 :7-14 and 15, are amendments to the Electrical Contractors Licensing Act of 19d2 and as such are limited by the. provision found in section 17 of that act (N. J. S. A. 45 :5A-17, quoted above) preserving the inspection power of municipalities.

In view thereof, we are satisfied that the power granted to the Board of Public Utility Commissioners by sections 2 and 3 of the 1971 act (N. J. 8. A. 48:7-14 and 15) does not include the power to modify in any way the existing power and authority of cities or counties which had adopted, or do adopt, an ordinance (in the case of a city) or a resolution (in the case of a county) pursuant to the 1912 or 1929 act. The power to approve “all electrical inspection authorities” found in N. J. 8. A. 48:7-14 refers, in our opinion, to authorities other than cities or counties which had invoked or hereafter invoke the 1912 or 1929 act.

Further, in view of the continued viability of the 1912 and 1929 acts, the Board of Public Utility Commissioners does not have the power to adopt regulations whose effect is to repeal the express provisions of those acts (N. J. S. A. 40 :173-1 and N. J. S. A. 40 :23—23) mandating an inspection and approval of electrical inspections, in cities and counties which have proceeded under those acts, by the governmental inspectors appointed pursuant thereto.

We therefore conclude that the following sections of the Board’s regulation are invalid insofar as they purport to apply to a city and a county which has invoked or may hereafter invoke the provisions of the 1912 and 1929 acts:

1. Section 14:5-4.5(a), which would require the city or county to accept certificates of approval issued by private electrical inspection authorities certified by the Board.

2. Section 14:5-4.5(b), which would prohibit the city or county from requiring an inspection certificate issued by its own inspector and from refusing to accept a certificate from “other electrical inspection authorities certified by the Board.”

3. Section 14:5-4.5(c) and section 14:5-4.4(a), which would compel the city or county to apply to the Board for a certificate authorizing it to act as an electrical inspection authority, and, further, would limit the light to so apply to cities or counties “who have been conducting inspections of electrical construction with their own inspectors prior to June 24, 1971.” The latter provision is, in effect, an impermissible attempt by the Board to usurp the Legislature’s prerogative and to repeal, as of June 24, 1971, both the 1912 and 1929 acts, this by barring any city or county which had not invoked the provisions of those acts prior to that date from thereafter doing so.

4. Section 14:5-4.5(d), which would bar the city or county from requiring “duplicate electrical inspections from a customer who has his electrical construction inspected by an electrical inspection authority certified by the Board.”

5. Section 14:5-4.4(d), which would authorize and compel a utility in such a city or county to accept determinations resulting from inspections made by other than governmental inspectors.

6. Section 14:5-4.5(h), which would make the jurisdiction of the city or county inspector concurrent with that of other electrical inspection authorities certified by the Board unless the Board, upon petition, hearing and notice, should determine in particular circumstances that “the public interest requires that the [city’s or county’s] authority shall be exclusive.”

7. Section 14:5-4.6, insofar as it applies to the rates to he charged for inspections. Under the governing statutes above referred to, a city may fix an inspection fee not exceeding $50, N. J. S. A. 40:173-1, and a county may fix an inspection fee not exceeding $10, N. J. S. A. 40:23-21.

Further, to the extent that other provisions of the regulations, e. g. those relating to liability and ■workmen’s compensation insurance (sections 14:5-4.18' and 4.19) and those calling for payment of registration fees by the city or county to the Board (section 14:5—4.28), impinge on the power and authority granted by the statutes to a city or county proceeding under the 1912 and 1929 acts, respectively, those provisions are also invalid.

What we have written is not to suggest that the Board has no part to play with respect to inspections made in a city or county which elects to proceed under the 1912 or 1929 act. As we have already noted, both those acts require—by N. J. S. A. 40:173-1 and N. J. 8. A. 40 :23-20, respectively—that:

Such regulation and inspection shall not be inconsistent with the current issue of the national electrical code and the rules and regulations of the person by whom the electrical energy is to be supplied, or the enlisting standards of the board of public utility commissioners. [Emphasis added]

and by N. J. S. A. 40:173-2 and N. J. S. A. 40 :23—22, respectively, that any inspector appointed “shall have a practical and technical knowledge of the construction and operation of interior electrical wiring and appliances.”

In light of those statutory provisions, we find no invalidity in the provisions of:

1. Section 14:5-4.5(e), which requires any inspector employed by a city or county to obtain a license from the Board pursuant to section 14:5-4.29; provided, however, that incumbent city or county inspectors are given a reasonable time to apply and qualify for the license.

2. Section 14:5-4.5 (f), prohibiting any inspector from having “any interest or relationship to” any electrical contractor, any manufacturer or seller of electrical appliances, machinery, wiring, hardware or apparatus, or any utility or other entity supplying electrical energy.

3. Section 14:5-4.9, setting forth the following “standards for inspection”:

Inspections shall be made to insure compliance with the National Electrical Code, which the Board hereby adopts and incorporates herein, regulations and orders of the Board and requirements of the utility as filed with the Board, in effect at the time of construction.

4. Sections 14:5-4.24 and 4.25, requiring inspections to be made at the request of the Board.

5. Section 14:5-4.5(g), prohibiting any such city or county from adopting

.?• * * any electrical code that is not consistent with the National Electrical Code, and the rules or regulations for wiring of the utility or the existing standards and regulations of the Board.

The challenge to the validity of so much of section 14:5-4.5(g) as prohibits any city or county from adopting “any electrical code that is not consistent with the National Electrical Code” ignores that the identical provision appears in the statutes from which the city or county derives its power to engage in electrical inspections. N. J. S. A. 40 :173-1 and N. J. S. A. 40 :23-20. Contrary to what appellant argues, such a provision is not an unconstitutional delegation of legislative power to a private agency. Independent Electricians, etc., Ass’n. of N. J. v. N. J. Bd. of Examiners, etc., 54 N. J. 466, 482-483 (1969); see also, State v. Hotel Bar Foods, 18 N. J. 115 (1955); Male v. Renda Contracting Co., Inc., 64 N. J. 199, 201 (1974).

Finally, appellant’s suggestion that the Board has, by ifs rt gulations, unlawfully delegated to private agencies— electrical inspection authorities certified by it—such power as may be vested in it “to police electrical construction” is without substance in view of the express provisions of N. J. S. A. 48:7—14 authorizing the Board to approve private “electrical inspection authorities.”

The cause is remanded to the Board of Public Utility Commissioners for further proceedings consistent with this opinion.


text:
    STATE OF NEW JERSEY, PLAINTIFF-APPELLANT, v. JOSEPH SATKIN, HENRY PITTS AND JOYCE SMITH, DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued March 12, 1974—
    Decided March 21, 1974.

      Before Judges Halpern, Matthews and Bischoff.

      Mr. John P. Goceljak, Assistant Prosecutor, argued the cause for appellant (Mr. Joseph D. J. Gourley, Passaic County Prosecutor, attorney).

      Mr. Richard J. Manfre argued the cause for respondent Satkin; Mr. Vincent Hull, Jr. argued the cause for respondent Smith; Mr. Miles Peinstein, attorney for respondent Pitts (Messrs. Richard J. Manfre, Miles Feinstein and Vincent Hull, Jr., on the brief).
   Pee Curiam.

The State in this interlocutory appeal seeks the reversal of an order compelling it to disclose to defendant certain information prior to trial.

Defendants were indicted for arson, conspiracy to commit arson, and four counts of murder. The indictment for conspiracy is based on the charge that defendants conspired with Dennis Priester to burn certain dwelling houses not owned by them. The fires were started by Dennis Priester, and during the course of the burning, four persons inside the buildings were killed. Their deaths form the basis for the charges of murder.

While Dennis Priester gave a statement to the Prosecutor admitting he started the fires, gave inculpatory testimony before the Grand Jury, and is named as a coconspirator, he has not been indicted.

In the course of discovery, George Priester was named by the State as a person with knowledge of relevant information who might be called as a State witness.

After hearing defendants’ motion for additional discovery, the court ordered the State to reveal to defendants whether or not Dennis Priester and George Priester had “* * * been granted testimonial immunity with regard to any statements or proposed testimony regarding the above-entitled indictments, or in the alternative, whether or not the Prosecutor has entered into plea bargaining negotiations with said material witness * * * for cooperating with the State and testifying for the State, and if so, what agreement has been made as a result of same * * The State’s motion for leave to appeal that order was granted.

Thereafter on October 3,1973 (one week prior to a peremptory trial date) defendants moved for additional discovery, and the court ordered the Prosecutor’s Office to turn .over to defendants “copies of any and all vouchers, checks and records regarding the disbursement of monies to Dennis Priester by the Passaic County Prosecutor’s Office while the said Dennis Priester was in protective custody * *

The State again sought leave to appeal that order; leave was granted, and the two interlocutory appeals were consolidated.

While the State concedes that the information sought by defendants and ordered by the court would have to be furnished to defendants at the time of trial, it contends it was error to compel the disclosure prior to trial, arguing (a) there is no rule specifically compelling disclosure of the information and (b) to do so would impede and interfere with the Prosecutor’s preparation of the case for trial. It is further contended that the order respecting disclosure of monies paid to Dennis Priester imposes an undue burden on the Prosecutor’s Office and compels it to provide, on a daily or weekly basis, information of expenditures made to maintain the material witness.

The scope of permissible discovery in criminal cases has been drastically extended by both fiules of Court and recent, reported decisions. We now subscribe to extremely broad, automatic and bilateral disclosure prior to trial. R. 3 :13-3. State v. Montague, 55 N. J. 387, 395 (1970).

The philosophy underlying this discovery is that “the interests of truth and justice are best served by broad mutual discovery before trial.” State v. Cook, 43 N. J. 560, 563 (1965).

It is within this framework that we approach any question concerning discovery.

It is clear even without the concession by the State that at the time of trial the prosecution is under a duty to reveal the existence of a promise or agreement of immunity or a recommendation of leniency made to a material witness or accomplice who may be incriminated in the offense with defendants, although not himself indicted. State v. Taylor, 49 N. J. 440, 448 (1967).

The prosecution here resists disclosure of any agreement of immunity or promise of leniency on the grounds that the letter of the Eule (R. 3 :13-3) does not provide for it and, further, that such agreement or promise constitutes work product and is exempt from discovery under B. 3:13-3(e). Moreover, the prosecution argues that if negotiations are actually in process, the delicate balance naturally involved in the negotiations may be, impaired by an early disclosure.

The fact that a particular disclosure is not specifically mentioned in the Rules should not prevent a judge in an appropriate case from granting relief to defendant and compelling disclosure to be, made. State v. Cook, supra.

We do not equate a promise of leniency or agreement of testimonial immunity with the Prosecutor’s work product and, accordingly, such disclosure is not prohibited by B. 3:13-3(c).

It is readily understandable that disclosure of negotiations with a material witness for testimonial immunity while in process may, on occasion, prejudice the prosecution. However, we perceive no such issue involved here. The witness Dennis Priester gave inculpatory testimony before the Grand Jury and was not indicted. The case has already been given a peremptory trial listing. Under the circumstances we see no prejudice to the, prosecution, and he refers us to none. The order of the trial judge directing the disclosure of any agreements respecting testimonial immunity or plea bargaining negotiations with either Dennis Priester or George Priester is affirmed.

❖ ❖ ❖

The State resists disclosure of the amount of 'monies paid to the material witness Dennis Priester and contends the only use defendant can make of such evidence is to attack the credibility of the witness and that disclosure of this information at the time of trial is all that is required to afford defendant sufficient protection. The State further argues that the requirement of keeping the information current imposes upon the Prosecutor’s Office an undue burden.

While these arguments may have validity in some instances, they are inappropriate here. It is significant that defendant made the application for this information one week prior to the peremptory trial date so that no undue burden is imposed upon the Office of the Prosecutor. Moreover, the record contains information from which substantial payments to or for the material witness are reflected. Defendants are entitled to full information on this issue to permit them to make an investigation and determine whether the payments to the material witness go beyond the reasonable needs of his maintenance. This may have a vital bearing on the ability of defendants to attack the credibility of the witness.

The orders of the trial judge compelling the disclosures are affirmed.