author: Collester, J. A. D.

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. JOSEPH RULLI, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued February 8, 1971
    Decided May 6, 1971.

      Before Judges Sullivan, Collestek and Labkecque.

      Mr. Richard M. Glassner argued the cause for appellant.

      Mr. Edward N. Fitzpatrick, Assistant Prosecutor, argued the cause for respondent (Mr. Robert Bilts, County Prosecutor, attorney).
   The opinion of the court was delivered by

Collester, J. A. D.

Defendant, who had previously been convicted of the unlawful sale of narcotics, was found guilty by a jury on an indictment charging him with the illegal possession of a firearm in violation of N. J. 8. A. 2A :151-8. The indictment resulted when police found a loaded revolver in defendant’s apartment during a search conducted pursuant to a search warrant.

The principal contention of defendant on this appeal is that his pretrial motion to suppress evidence obtained by the police should have been granted.

The affidavit submitted to the warrant issuing judge was executed by Bruno Czérniak, an investigator of the county prosecutor’s office, who expressed a belief that defendant was engaged in bookmaking and was unlawfully carrying a gun. His belief was based on information furnished separately by two unidentified informants. He stated that his first informant, “who in the past has furnished me with reliable information relating to the commission of crimes and unlawful activities,” told him that defendant was engaged in bookmaking operations, that he had personally observed defendant engage in such transactions, and that he had seen a book in which defendant made records of his operations on defendant’s person, in his automobile, and in his apartment. The informant also said that in order to protect himself from interference in carrying on his gambling activities defendant carried a hand gun on his person and in his car. The affiant stated that the other informant, “whose information has proved reliable in the past,” said that on one occasion he observed defendant open his jacket and exhibit a pistol lodged in the waistband of his trousers and that defendant told the informant that he always carried the pistol on his person.

Defendant first contends that the affidavit upon which the search warrant was based was insufficient to support a finding of probable cause to believe that a crime was being or had been committed. Relying upon Spinelli v. United States, 393 U. S. 410, 89 S. Ct. 584, 21 L. Ed. 2d 637 (1969) and Aguilar v. Texas, 378 U. S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964), he argues that the affidavit was deficient because the affiant’s statement that his informants were reliable was a conclusion unsupported by any details of his past association with them or that any information they had previously furnished had resulted in criminal complaints, indictments or convictions. He also argues that the informants’ statements did not show specific details of the offenses committed by the defendant or the dates, places or persons with whom defendant allegedly was engaging in gambling transactions.

In Aguilar, a search warrant issued upon an affidavit of police officers who swore only that they had received reliable information from a credible person and believed that narcotics were illegally stored on the described premises. The court held the affidavit inadequate for two reasons, (1) it failed to set forth anjr of the underlying circumstances necessary to enable the magistrate independently to judge the validity of the informant’s conclusion that the narcotics were where he said they were, and (2) the affiant-officers did not attempt to support their claim that their informant ivas credible or his information reliable. Spinelli reaffirmed the Aguilar two-pronged test.

IVe conclude that the affidavit in this case meets the test referred to in Aguilar and SpineMi. Here the informants’ reports were based on their personal observations of defendant’s unlawful activities. They corroborated each other with respect to defendant’s unlawful possession of a gun. The credibility of the informants was further established by the investigator’s previous experience with them in that their information had proved reliable in the past. See Jones v. United States, 362 U. S. 257, 269-272, 80 S. Ct. 725, 4 L. Ed. 2d 697 (1960). A realistic and common sense reading of the affidavit would support the independent judgment of the warrant issuing judge that probable cause existed for the warrant. United States v. Ventresca, 380 U. S. 102, 108, 85 S. Ct. 741, 13 L. Ed. 2d 684 (1965); cf. State v. Kasabucki, 52 N. J. 110, 122 (1968). We are satisfied that the affidavit established probable cause and justified the issuance of the warrant.

Defendant also argues that the judge who heard the motion to suppress erroneously denied him the right to offer testimony to show that the search warrant had been improvidently issued. At the hearing defendant sought to examine Czerniak alleging that he expected to show that the warrant issuing judge had been imposed upon, that Czerniak did not believe the law had been violated when he executed the affidavit, and that the raid on defendant’s apartment had been conducted with the hope that evidence would be found relating to a homicide case then pending in Passaic County. The judge refused to permit the examination ruling that in determining whether probable cause existed for the issuance of the warrant he could only consider the sufficiency of the affidavit as presented to the issuing judge.

Defendaut contends that he should have been permitted to examine Czerniak to show Czerniak had not acted in good faith, to ascertain whether the affiant had misrepresented any facts to the issuing judge, or had made an independent effort to verify the information furnished by the informants, and further, to determine whether Czerniak had a reasonable basis to conclude that his informants were reliable.

The question involved is whether on a motion to suppress evidence a defendant can go behind the face of an affidavit used to establish probable cause for the issuance of a search Avarrant to contradict the truth of the allegations in the affidavit. The United States Supreme Court has not yet ruled on the question. See Rugendorf v. United States, 376 U. S. 528, 531-532, 84 S. Ct. 825, 11 L. Ed. 2d 887 (1964). A majority of the courts in other jurisdictions which have considered the question have held that matters, alleged under oath, upon which a search warrant was issued, may not be disputed by the one against whom or against whose property the warrant has been directed. People v. Bak, 45 Ill. 2d 140, 258 N. E. 2d 341, 342-343 (1970), cert. denied 400 U. S. 882, 91 S. Ct. 117, 27 L. Ed. 2d 121 (1970); Tucker v. State, 244 Md. 488, 224 A. 2d 111, 117-118 (Ct. App. 1966), cert. denied 386 U. S. 1024, 87 S. Ct. 1381, 18 L. Ed. 2d 463 (1967); and see Annotation, “Search Warrants: disputing matters stated in supporting affidavit,” 5 A. L. R. 2d 394, 396 (1949), 1 A. L. R. 2d Later Case Service 479 (1965). The minority view permits an inquiry under certain circumstances to determine whether the affidavit’s statements are perjurious. People v. Alfinito, 16 N. Y. 2d 181, 264 N. Y. S. 2d 243. 211 N. E. 2d 644, 646 (Ct. App. 1965); People v. Solimine, 18 N. Y. 2d 477, 276 N. Y. S. 2d 882, 223 N. E. 2d 341, 342 (Ct. App. 1966). Federal courts are divided as to what type of challenge, if any, may be made. Some support the majority view. Others hold that under Bule 41 of the Federal Buies of Criminal Procedure a hearing with respect to the truth of a legally sufficient affidavit should be granted where facts are presented showing a falsehood or other imposition on the issuing magistrate. United States v. Dunnings, 425 F. 2d 836, 839-840 (2 Cir. 1969), cert. denied 397 U. S. 1002, 90 S. Ct. 1149, 25 L. Ed. 2d 412 (1970). For a discussion of the subject see 'Kipperman, “Inaccurate Search Warrant Affidavits as a Ground for Suppressing Evidence,” 84 Harv. L. Rev. 825 (1971) and, Note, “Testing the Factual Basis for a Search Warrant,” 67 Colum. L. Rev. 1529 (1967).

Under B. 3:5-3 an applicant for a search warrant is required to appear before a judge who must take his affidavit or testimony before issuing the warrant. The determination that probable cause exists for issuance of the warrant is made by the independent judicial officer, whose decision, not that of the police, will govern whether a person’s liberty or privacy" is to be invaded. Jones v. United States, supra, 362 U. S. at 270-271, 80 S. Ct. 725. The judge is trusted to evaluate the credibility of the affiant. When the affidavit is based on facts told to the affiant by an informer, the judge is concerned not with whether the informant lied, but with whether the affiant is truthful in his recitation of what he was told. If he doubts the credibility of the affiant, he may require that the informer be identified or produced. State v. Burnett, 42 N. J. 377, 388, 201 A. 2d. 39 (1964). Thus, if the weight and independence of the judge’s determination is to be respected it is a substantial reason for denying defendants the right to routinely have a trial de novo of the facts set forth in the affidavit on a motion to suppress.

In State v. Gillman, 113 N. J. Super. 302 (App. Div. 1971), the defendant contended that certain statements contained in the sworn testimony of the applicant for the warrant were incorrect and should constitute an independent basis for striking down the search warrant. This court concluded that none of the alleged false statements were material and did not suggest purposeful falsification. We said;

In any event the rule in Xew Jersey would appear to preclude this kind of attack, which, where found elsewhere, rests upon statute. There is no legislation of this sort in our State, (at 306)

In the instant case defendant made no specific allegations that the facts set forth in the affidavit underlying the search warrant were untrue or that the affiant’s allegations therein were perjurious. Thus, even under the minority rule, there would be no basis for his examination of the witness. At best defendant sought to conduct a “fishing expedition.” We are satisfied and hold that defendant was not entitled to a de novo hearing on the factual issues contained in the affidavit which had been passed upon by the issuing judge. Consequently, there was no error in the ruling of the trial judge.

Defendant further contends that the motion to suppress should have been granted because the police seized property not specifically described in the search warrant. The argument lacks merit. Eirst, it was not raised on the motion to suppress. Secondly, the seizure of articles not specified in the warrant does not invalidate the search and lawful seizure of other articles which were described therein. United States v. Castle, 213 F. Supp. 56, 60 (D. D. C. 1962), and cf. State v. Parsons, 83 N. J. Super. 430, 447 (App. Div. 1964) and United States v. Langford, 303 F. Supp. 1387 (D. Minn. 1969). Here the warrant specifically referred to the gun, the unlawful possession of which was the basis of the indictment of the defendant, as one of the “things to be seized” which is required under the Fourth Amendment.

The remaining points urged as grounds for reversal concern rulings of the court regarding the admission of evidence during the course of the trial. We have carefully considered each point and find no prejudicial error.

Affirmed.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    IN THE MATTER OF THE PETITION OF NED FELDMAN, PETER T. TAUSSIG, EDWARD F. JOHNSON AND LEONARD RUBIN TO BE CANDIDATES IN THE GENERAL ELECTION FOR THE OFFICES OF MAYOR, COUNCILMAN-AT-LARGE, COUNCILMAN-FIRST WARD AND COUNCILMAN-SECOND WARD, RESPECTIVELY, IN THE CITY OF ENGLEWOOD.
    Superior Court of New Jersey Appellate Division
    Argued August 30, 1971
    Decided September 3, 1971.

      Before Judges Goldmans, Collesteb and Mintz.

      Mr. Sidney Slauson argued the cause for intervenors (Messrs. Slauson, Maries and Malech, attorneys).

      Mr. Gerald O. Escala argued the cause for respondents (Messrs. Hauser and Escala, attorneys; Messrs. Gerald G. Escala and Bernard Ohazen, on the brief).
   Per Curiam.

The single question on this appeal is whether the trial judge erred in permitting an amendment to the nominating petitions of independent candidates for mayor and councilmen, respectively, of Englewood, by the addition of attestors’ names.

Plaintiffs Eeldman, Taussig, Johnson and Rubin filed the nominating petitions in question with the Bergen County Clerk, who refused to accept them for lack of proper certification under N. J. 8. A. 19:13-7. Plaintiffs thereupon filed their verified complaint in the Law Division, upon which an order to show cause issued. John Stavola and Bernard Hochhauser filed objections to plaintiffs’ petitions with the county clerk. Their objections, as well as the order to show cause and a motion for summary judgment that had been made by the county clerk, were argued on May 20, 1971. The trial judge held that the county clerk’s action in refusing to accept the nominating petitions was proper, but ruled that plaintiffs could amend their petitions to cure the defects by having five of the voters who had signed them execute the certification — instead of the one, two or three who were affiants to the original petitions. Plaintiffs immediately filed new petitions signed by the same voters as had signed the originals, but which were certified by five of the signatories, thus meeting the requirement of N. J. 8. A. 19 :13-7.

The thrust of the intervenors’ argument is that the trial judge trespassed upon N. J. 8. A. 19 :13-13 becuase, as they would have it, he permitted the addition of signatures — an amendment expressly prohibited by the cited statute. N. J. 8. A. 19:13-13 reads as follows:

A candidate whose petition of nomination, or any affidavit or affidavits thereto, is defective, may cause such petition or the affidavit or affidavits thereto, to be amended in matters of substance or of form as may be necessary, but not to add signatures, or such amendment or amendments may be made by filing a new or substitute petition, or affidavit or affidavits, and the same when so amended shall be of the same effect as if originally filed in such amended form; but every amendment shall be made at least thirty-four days before the primary election for the general election. This provision shall be liberally construed to protect the interest of candidates.

To accept the intervenors’ contention is to disregard the statutory provisions relating to direct nominations by petition, N. J. 8. A. 19 :13-3 et seq., particularly 19 :13~5, 19 :13-7 and 19:13-13. N. J. 8. A. 19 :13-5 deals with the number of signatures to a petition, i. e. those who sign the body of the petition as nominators of the independent candidate. N. J. 8. A. 19 :13-7, relating to the certification of a petition, provides that the affiants state they saw “all the signatures made thereto.” And N. J. 8. A. 19:13-13, dealing with the amendment of a defective petition, expressly states that its provisions shall be liberally construed to protect the interest of candidates. Liberality of construction is the touchstone of the statutory scheme of our Election Law, Revised Statutes, Title 19, as well as in the decisions construing that law, e. g., In re Chirico, 87 N. J. Super. 587, 592 (App. Div. 1965), cert. den. 45 N. J. 32 (1965).

In our view, the statutory prohibition of added signatures in N. J. 8. A. 19 :13-13 does not refer to those who execute the certification, but to those who append their names to the main part of the nominating petitions.

Affirmed.


text:
    ANTHONY CARBONE, PLAINTIFF-APPELLANT, v. GEORGE F. KUGLER, ATTORNEY GENERAL OF THE STATE OF NEW JERSEY, AND WALTER G. HALPIN, DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued August 30, 1971
    Decided September 3, 1971.

      Before Judges Goldmann, Collestek and Mintz.

      Mr. Arnold Jay Gold argued the cause for appellant.

      Mr. Alfred L. Nardelli, Deputy Attorney General, argued the cause for respondent Attorney General of New Jersey (Mr. George F. Kugler, Jr., Attorney General of New Jersey; Mr. Stephen Slcillman, Assistant Attorney General).
   Per Curiam.

Anthony Carbone appeals from a Law Division judgment upholding the determination of the "Onion County Clerk that his nominating petition as an independent candidate for the office of freeholder was invalid for failure to comply with N. J. 8. A. 19:13-7. N. J. 8. A. 19:13-5 requires that such petition contain 100 signatures of legally qualified voters. N. J. 8. A. 19:13-7 provides that at least five of the voters signing the petition shall make oath that the petition is made in good faith, that they saw all the signatures made thereto and verily believe that the signers were duly qualified voters.

An objection having been filed after Carbone had submitted his petition, the county clerk conducted a summary hearing which revealed that five affiants were not present at the time the voters signed the petition. Since this was a violation of N. J. 8. A. 19 :13-7, he determined that the petition was defective and accordingly declared it invalid.

Carbone at once filed a complaint in lieu of prerogative writs. Following a hearing the Law Division judge upheld the county clerk’s ruling, and this appeal followed. Car-bone’s basic contention is that the 19 :13—7 requirement of five attesters amounts to a denial of the equal protection of the law guaranteed by the Fourteenth Amendment to the United States Constitution. The basis for this contention is that under N. J. S. A. 19 :23-ll a nominating petition in a primary election need be verified by only one of the signers of the petition. In short, Carbone claims there is invidious discrimination where an independent candidate is concerned.

We find no merit in that contention. As the United States Supreme Court pointed out in Jenness v. Fortson, 403 U. S. 431, 91 S. Ct. 1970, 29 L. Ed. 2d 554 (June 21, 1971), there are obvious differences between candidates of a political party and independent candidates, sufficient to warrant the legislature calling for different procedures in having their names placed on the ballot. And in Steger v. Schellenger, 33 N. J. 293, 295 (1960), our Supreme Court noted that the Legislature had dealt differently with the subject of verification in the General Election Law by specifying another mode of verification for nomination in a primary election, and stated that “in the nature of the subject, the manner and scope of the verification must vary with the context, and what is appropriate in one setting may be burdensome or prohibitive in another.” Further, in McCaskey v. Kirchoff, 56 N. J. Super. 178, 182 (1959), we observed that the requirement that five affiants witness all signatures to the nominating petition of an independent candidate was “not unduly burdensome.” And see Smith v. Hayes, 116 N. J. Super. 133 (App. Div. 1971); Preisler v. St. Louis, 322 S. W. 2d 748 (Mo. Sup. Ct. 1959).

Affirmed.


text:
    IN THE MATTER OF PETITION OF THOMAS F. X. SMITH, MUNICIPAL CLERK OF THE CITY OF JERSEY CITY IN RE: SPECIAL ELECTION OF THE CITY OF JERSEY CITY, PETITIONER-RESPONDENT, v. FRANCIS X. HAYES, DEFENDANT INTERVENOR-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Submitted August 20, 1971
    Decided August 31, 1971.

      Before Judges Kilkenny, Halpeen and Lane.

      Mr. James F. Ryan, Corporation Counsel, for respondent (Mr. Louis P. Caroselli, Second Assistant Corporation Counsel, on the brief).

      Mr. Francis X. Hayes, pro se.

   Per Curiam.

Defendant-intervenor is appealing from a declaratory judgment ordering that elections in Jersey City to fill vacancies in the office of the major and office of a councilman-at-large shall be conducted according to Title 19, the General Election Law.

The issue is whether the procedural nomination requirements for candidates in an election for vacant offices under a Faulkner Act Mayor-Council Plan C form of government, N. J. 8. A. 40 :69A-55 to 60.4, are to be governed by the provisions of Title 19, relating to direct nominations by petition for a general election, or whether procedural nomination requirements of the Faulkner Act, N. J. 8. A. 40 :69A-153 to 162, applying to candidates seeking office in a regular municipal election, shall apply.

The statute in question is N. J. S. A. 40 :69A-60 governing vacancies in elective offices in a “Mayor-Council Plan C” form of municipal government. The statute provides that:

Vacancies in any elective office occurring prior to the ninth Friday before general election day of any year shall be filled by election for the unexpired term at the next general election except as hereinafter otherwise provided. Such election to fill a vacancy shall be upon direct nomination by petition in the manner provided, by law for the filling of vacancies in municipal offices where candidates are nominated by direct petition for a general election. Council shall fill such vacancies temporarily by appointment to serve until the qualification of a person so elected.
When any such vacancy occurs on or after the ninth Friday before general election day, it shall be filled by election for the unexpired term at the general election to be held in the following year, but if it occurs on or after such Friday in the third year of the term of such office, the council shall fill such vacancy by appointment to serve for the remainder of the term. [Emphasis added]

Defendant-intervenor seemingly argues that the legislative language in N. J. 8. A. 40:69A-60 is inconsistent and ambiguous; that the Legislature intended that the procedural nomination requirements of the Eaulkner Act, not Title 19, apply to elections for vacancies, and that an election for a vacancy under N. J. 8. A. 40:69A-60 is a “regular municipal election” governed by the provisions of N. J. 8. A. 40:69A-153, 154, 155, 156, 157, 158 and 159.1.

Judge Rosen ruled in the Law Division that Title 19 applied and that the nominations had to be made in accordance with its provisions.

Initially we observe that whenever a court is called upon to decide an election law issue, its function is rather narrow. If the statute in question is clear, the will and intent of the Legislature must be enforced. If the statute is ambiguous or conflicts with some other law, then the court must consider the election laws as being in pari materia and arrive at the intent of the Legislature. Rafferty v. Schatzman, 81 N. J. Super. 58 (Law Div.), aff’d 81 N. J. Super. 64 (App. Div. 1963).

The Eaulkner Act, N. J. 8. A. 40:69A-1 et seq., was adopted as an essentially integral, comprehensive plan for local government. Its different cognate provisions, adopted at one time, lend significance to each other. Seminara v. Smith, 89 N. J. Super. 349 (App. Div. 1965). However, the Eaulkner Act cannot be construed as an entirely independent legislative scheme, separate and apart in every respect from the General Election Law; rather, it necessarily depends upon them. Horwitz v. Reichenstein, 15 N. J. 6 (1954); Pritel v. Burris, 94 N. J. Super. 485 (App. Div. 1967). In addition, N. J. S. A. 40:69A-26 provides that upon the adoption of any of the municipal forms of government set out in the Eaulkner Act, “the municipality shall thereafter be governed by the plan adopted, by the provisions of this [Eaulkner] act common to optional plans and by all applicable provisions of general law * * N. J. S. A. 40:69A-28 defines “general law” as “any law or provision of law, not inconsistent with this act, heretofore or hereafter enacted which is by its terms applicable or available to all municipalities.”

I

N. J. S. A. 40:69A-60 on its face is not ambiguous or inconsistent. It clearly provides that any election to fill vacancies, pursuant to it, “shall be upon direct nomination by petition in the manner provided by law for the filling of vacancies in municipal offices where candidates are nominated by direct petition for a general election * * (Emphasis added).

Title 19, Subtitle 2, governs general elections. N. J. S. A. 19:13-1 to 13 governs direct nominations by petition. N. J. S. A. 19:27-4 to 12 governs filling of vacancies; specifically, N. J. S. A. 19 :27-ll provides that

In the event of any vacancy, howsoever occurring, in the representation of any county in the Senate or General Assembly or in any county or municipal office * * * candidates may also be nominated by petition in a similar manner as herein provided for direct nomination by petition for the general election; but the petition shall be filed with the county clerk at least thirty-four days prior to such general election * * *

Title 19 thus clearly provides for the filling of vacancies in municipal offices where candidates are nominated by direct petition for a general election. The provisions of the Eaulkner Act which defendant seeks to apply to the vacancy election, i.e., N. J. S. A. 40:69A-153 to 159.1, just as clearly provide for certain procedures in a “regular municipal election.” It is clear that the language in N. J. S. A. 40:69A-60 must be construed to state that the vacancy election shall be by direct nominations in the manner provided by Title 19.

The New Jersey Supreme Court has interpreted N. J. 8. A. 40:69A-60 in a similar manner. In Horwitz v. Reichenstein, 15 N. J. 6 (1954), Chief Justice Vanderbilt said, although dictum:

The Faulkner Act, moreover, does not purport to stand alone, despite the appellant’s contention to the contrary. Thus it provides that “the municipal elections shall be * * *' conducted in the same manner, so far as possible, as the general election.” N. J. S. A. 40:69A-151. It also provides that elections to fill vacancies or to replace officers who are recalled by the voters are to he conducted under the general election laws, N. J. S. A. 40 :69A-60 and 40 :69A-175 * * *. [15 N. J., at 9, 10; emphasis added]

II

Defendant-intervenor also argues that an election to fill a vacancy is a “regular municipal election” and therebjr controlled by N. J. 8. A. 40 ¡69A-153 to 159.1. In Seminara v. Smith, 89 N. J. Super. 349 (App. Div. 1965), involving an interpretation of N. J. 8. A. 40:69A—114, which language is essentially the same as N. J. 8. A. 40:69A-60, the court, in holding that the election to fill a vacancy was not a “regular municipal election,” ruled that N. J. 8. A. 40:69A-160 and 161, governing runoff elections after a regular municipal election, did not apply to a vacancy election. The court found an election to fill a vacancy under the Eaulkner Act to be separate and distinct from a “regular municipal election” for a full new term, noting that “entirely different provisions govern the method of nomination of candidates for offices in connection with Tegular municipal elections/ N. J. S. A. 40:69A-152, as compared with the comparable provision for nomination of candidates for an election to fill a vacancy as specified in Section 114 * * (At 355).

See also Hambright v. Martini, 5 N. J. Super. 609 (Law Div. 1949).

Deefndant-intervenor argues that Seminara v. Smith, supra, should be limited to the narrow issue of whether the vacancy election therein was a “regular municipal election” within N. J. S. A. 40:69A—160 and 161. However, that case and other authorities cited clearly indicate that a vacancy election is not a “regular municipal election.” Very clearly the point was that the vacancy election provisions of N. J. S. A. 40:69A-114, which are identical to those of N. J. S. A. 40:69A-60, are per se separate and distinct from the “regular municipal election” provisions, i.e., N. J. S. A. 40 :69A-150 to 163.

Ill

It should also be noted that in Mayor-Council Plans B, N. J. S. A. 40:69A-49 to 54, and D, N. J. S. A. 40:69A-61 to 67, and Council-Manager Plans B, N. J. S. A. 40:69A-99 to 103, and D, N. J. S. A. 40:69A-109 to 114, the Legislature specifically provided for vacancy elections at the next general election or at the regular municipal election, and that “whenever such elections to fill a vacancy shall bo at the general election, the nomination of candidates shall bo by petition in the manner provided by law for the filling of vacancies in municipal offices where candidates are nominated by direct petition for a general election.” In the other specified nonpartisan forms of government the Legislature provided only for vacancy elections to be held at a general election, providing that “such election * * * be upon direct nomination by petition in the manner provided by law for the filling of vacancies in municipal offices where candidates are nominated by direct petition for general elections.” Thus the Legislature has unambiguously indicated its intent that where a vacancy election is held at a general election, the nomination petition shall be in the manner provided by the general election laws of Title 19. The vacancy election shall be filled by an election at a general election, and the procedures thereof shall apply.

IY

N. J. 3. A. 19:27-ll provides that

In the event of any vacancy howsoever occurring, in the representation of any county in the Senate or General Assembly or in any county or municipal office, which vacancy shall occur after the last day for filing petitions for nominations for the primary election and prior to thirty-seven days preceding the general election * * * candidates may also be nominated by petition in a similar manner as herein provided for direct nomination by petition for the general election; but the petition shall be filed with the county clerk at least thirty-four days prior to such general election * * *.

Defendant-intervenor argues that since N. J. 8. A. 19:27-ll becomes operative only if the vacancy occurs “after the last day for filing petitions for nominations for the primary election and prior to thirty-seven days preceding the general election,” this section of the election law would not apply to a vacancy occurring prior to the primary date this 3rear, June 7. The implication is that if N. J. 8. A. 19:27-ll is inoperative, the nominating procedures of Title 19 also are. The argument is: Were a vacancy to occur before June 7, one would be left with a situation in which N. J. 8. A. 40:69A-60 indicates Title 19 should apply, and N. J. 8. A. 19:27-ll indicates Title 19 should not apply. (The vacancies herein occurred on July 5, 1971 upon conviction of the former mayor and councilman-at large.)

N. J. S. A. 40:69A-60 indicates, however, that where a vacancy election is held pursuant to V. J. 8. A. 19:27-ll, the election shall be by direct nomination, and the procedures for such a nomination shall be those procedures followed in the filling of vacancies in municipal offices where candidates are nominated by direct petition for a general election. Candidates for a municipal office vacancy may be nominated by direct nomination for a general election pursuant to N. J. 8. A. 19:13—1 to 13. The fact that in some instances N. J. 8. A. 19:27-11 may not apply where there is a vacancy in a municipal government other than one acting under the Eaulkner Act, does not affect the directive in N. J. S. A. 40:69A-60 to use the nominating procedures provided for in Title 19, i.e., N. J. 8. A. 19:13-1 to 13.

These procedures, as the Law Division ruled, (1) would require only 100 signers on a nominating petition, rather than signatures by 1% of the registered voters (1105 in Jersey City); (2) would need a verification of the petitions by five signers thereof, and (3) the filing would be with the county clerk rather than the municipal clerk.

V

In his supplemental memorandum defendant-intervenor raises for the first time the argument that the provisions of N. J. 8. A. 19:13-7, as to the need of a verification by five signers, are unconstitutional as a denial of equal protection of the law. A defense that was not briefed and argued in the trial court proceedings and does not concern jurisdiction or public policy should not be considered for ihe first time on appeal. Appellate courts are not bound to consider constitutional questions that have not been raised below. Mancuso v. Rothenberg, 67 N. J. Super. 248, 257 (App. Div. 1961). However, an appellate court may exercise such original jurisdiction as is necessary to the complete determination of any matter on review R. 2:10-5.

The requirement of equal protection is satisfied if all persons within á class reasonably selected are treated alike. Classification is reasonable if it rests upon some ground of difference having a real and substantial relation to the basic object of the particular enactment or on some relevant consideration of public policy. If there is a reasonable distinction, there is no oppressive discrimination. The Legislature has a wide range of discretion in this area and distinctions will be presumed to rest upon a rational basis if there be any conceivable state of facts which would afford reasonable support for them. Wilson v. Long Branch, 27 N. J. 360, 377 (1958), cert. den. 358 U. S. 873, 79 S. Ct. 113, 3 L. Bd. 2d 104; Robson v. Rodriguez, 26 N. J. 517 (1958).

Defendant-intervenor’s argument is without substantial merit. The statute applies equally to the petitions of all candidates who are nominated by direct petition for a general election. The classification is certainly reasonably related to the election procedures of Title 19. The fact that N. J. 8. A. 19:13-7 is the only verification law which requires • five witnesses to the signatures made to the petition is not sufficient to make it unconstitutional. It certainly can be said that it was reasonable for the Legislature to provide for a strong verification procedure where candidates for a general election are being nominated by direct petition and no more than 100 signatures are required.

The judgment of the Law Division is affirmed.


author: Byrne, J. S. C.

text:
    IN THE MATTER OF: THE APPLICATION OF THE ATTORNEY GENERAL OF NEW JERSEY, TO PUNISH BRUCE GRASING AND DOMINICK DeCARLO FOR FAILURE TO OBEY A SUBPOENA.
    Superior Court of New Jersey Chancery Division
    Decided August 30, 1971.

      Mr. Richard W. Grieves, Deputy Attorney General, for plaintiff (Mr. George F. Kugler, Jr., Attorney General of New Jersey, attorney).

      Mr. Sidney M. Schreiber for defendants (Messrs. 8chreibef and Lancaster, attorneys).
   Byrne, J. S. C.

This action is brought by the Attorney General on behalf of the Office of Consumer Protection to hold in contempt, for failure to obey a subpoena, defendants Grasing and DeCarlo. It raises for the first time in New Jersey the issue of the propriety of a “forthwith” subpoena.

The subpoena in this matter was issued to defendants in connection with their operation of Lady Slender Health Studios, Inc., a New Jersey corporation, engaged in providing weight reduction and physical conditioning facilities services to women.

Pursuant to an investigation concerning the sudden closing of Lady Slender’s Cliffside Park studio, defendants Grasing and DeCarlo met with Charles J. Irwin, Director of Consumer Protection, at his Newark office. At this meeting questions were posed to defendants in an attempt to determine the number of persons enrolled as members in the Cliffside Park studio. In response to the questions Grasing stated that the books containing such information were in the hands of the accountant and he was, therefore, unable to answer the questions. Director Irwin proceeded to contact the accountant and was informed that the records were not in the accountant’s possession but were at Grasing’s residence. A subpoena was then issued by Director Irwin to defendants requiring them to turn over certain documents. Grasing was requested to proceed directly to his residence accompanied by an investigator from the Office of Consumer Protection, and that materials specified in the subpoena be produced. Defendants thereupon contacted their attorney who informed them that the subpoena as issued was a nullity. Subsequent to the conversation between defendants and their attorney as to the efficacy of the subpoena, Director Irwin indicated to defendants that he would give until “the first of the week” to produce the records. That oral modification was declined and a contempt order to show cause ensued.

No challenge is raised regarding the authority to issue the subpoena. Under N. J. S. A. 56 :8-3 and 4 the Attorney General has the authority to conduct hearings and issue subpoenas. Defendants allege, however, that the immediacy of the subpoena, as it was originally drawn, makes the subpoena a nullity.

The subpoena as issued contained the following provisions:

We command you that, laying aside all business and excuses, you personally and severally produce for inspection before the bearer of this subpoena as designee of the Attorney General of New Jersey the following:
.1) Any and all contracts, membership agreements, enrollment forms or any other document or record evidencing the existence of contracts for services to be provided to members of the consuming public by Gady Slender Health Studio at 529 Anderson Avenue, Cliff-side Park, New Jersey.
2) Any and all books, accounts or other similar records evidencing payments received from members of the consuming public for services to be provided by Lady Slender Health Studio at 529 Anderson, Avenue, Cliffside Park, New Jersey.

• .The court considers the subpoena issued in this case to be a “forthwith” subpoena. The basis for this position is clear— a .subpoena requiring an immediate or “forthwith” production of documents is the same in its meaning, purpose and effect as one commanding the laying aside all business and excuses to produce certain documents. Immediate turnover of documents is the result of both a “forthwith” subpoena and the subpoena issued in this case.

.Although some courts have interpreted a “forthwith” subpoena to require immediate response, Emmons v. Ingebretson, 279 F. Supp. 558, 566 (D. N. D. Iowa 1968), there is no precise definition of “forthwith” as far as time is concerned. Its meaning depends upon the. circumstances of the case and the act to be performed. Hinse v. Burns, 108 N. H. 58, 226 A. 2d 865, 866 (Sup. Ct. 1967). From the circumstances of this case and acts to be done, to wit, prompt turnover of documents, it can be reasonably inferred that Director Irwin ascribed an immediate response to the command to lay aside all business and excuses and produce certain records for inspection.

Such subpoenas have been the source of criticism and court sanction. When the subpoena’s command has been complied with, courts have indicated that the turnover of documents may under some circumstances constitute an unreasonable search and seizure within the proscriptions of the Fourth Amendment. The authorities are assembled in In re Grand Jury Subpoena, Duces Tecum, etc., 203 F. Supp. 575 (S. D. N. Y. 1961); see Schultz v. Yeager, 293 F. Supp. 794 (D. N. J. 1967).

Our Supreme Court has stated in State v. Cooper, 2 N. J. 540, that

A subpoena duees tecum must be specified with reasonable certainty, and there must bé substantial showing that they contain evidence relevant and material to the issue. If the specification is so broad and definite as to be oppressive and in excess of demandant’s necessities, the subpoena is not sustainable, [at 556]

Where, as here, an individual is served with a subpoena duces tecum requiring a “forthwith” or immediate delivery of documents, without giving the subpoenaed party sufficient opportunity to consult with counsel regarding the subpoena, the due process rights and privileges of the individual are seriously jeopardized. A party served with such a subpoena is unable to determine if the subpoena adheres to the basic requirements as outlined in State v. Cooper, supra; he either turns over the documents forthwith or refuses and subjects himself to be held in contempt.

A person served with a subpoena to testify or to produce records should be entitled to legal advice if he so desires, prior to the time he must decide whether to respond, move to quash or ignore the subpoena. A “forthwith” subpoena erodes and practically eliminates this right.

Accordingly, this court finds that:

1. The “forthwith” subpoena as originally issued is invalid in that it denies the owner of the records a reasonable opportunity to procure a judicial determination of the legal efficacy or propriety of the process and denies due process of law. In re Atlas Lathing Corp., 176 Misc. 959, 29 N. Y. S. 2d 458 (Sup. Ct. 1941).

2. The oral modification of the subpoena here obviated the dangers in requiring an immediate turnover of documents. Counsel was contacted and an additional time was given. Defendants chose to ignore the subpoena as modified. The fact that the refusal was on advice of counsel does not make it less a contempt. Under the circumstances, Grasing and DeCarlo’s conduct constitutes a contempt.

The unusual nature of the issue here makes immediate punishment inappropriate. The court will therefore give Grasing and DeCarlo ten days from the date hereof to comply with the terms of the amended subpoena. In re West Wildwood, 42 N. J. Super. 282 (Ch. Div. 1956).


author: Carton, J. A. D.

text:
    ROBERT D. SPIEGLE AND DORIS LORRAINE SPIEGLE, HIS WIFE, PLAINTIFFS-APPELLANTS, v. BOROUGH OF BEACH HAVEN AND AMERICAN TELEPHONE & TELEGRAPH COMPANY, DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued May 3, 1971
    Decided August 11, 1971.

      Before Judges Contokd, Kolovsky and Carton.

      Mr. William, B. Golsey, III argued the cause for appellants (Messrs. Powell, Davis, Dietz & Golsey, attorneys).

      Mr. Franklin If. Berry, Jr. argued the cause for respondents (Messrs. Berry, Summerill, Rinclc & Berry, attorneys).
   The opinion of the court was delivered by

Carton, J. A. D.

This action is a sequel to two earlier consolidated actions brought by plaintiffs Spiegle against defendant Borough of Beach Haven. In the earlier proceeding our Supreme Court upheld two borough ordinances as reasonable exercises of police power. The first one prohibits erection or maintenance, without a permit, of fences or other structures on privately-owned ocean beachfront property (fence ordinance). The other perpetuates a sand dune area through both public and private property (dune ordinance). This dune ordinance is intended to prevent increased westward encroachment by the sea and authorizes the borough to construct and maintain a dune area. The effect of this ordinance, described more fully hereinafter, is to prohibit construction of habitable structures east of a designated building line.

Holding that plaintiffs had not sustained the burden of proving that the dune ordinance deprived them of the beneficial use of their property, the court stated that its action was “without prejudice, however, to any further proceedings based upon a claim and showing of an actual taking of a beneficial use.” Spiegle v. Beach Haven, 46 N. J. 479, 494, cert. den. 385 U. S. 831, 87 S. Ct. 63, 17 L. Ed. 2d 64 (1966).

Although various forms of relief are requested in connection with the alleged interference with plaintiffs’ rights, in essence plaintiffs’ present action against defendants Borough of Beach Haven and American Telephone and Telegraph Company is one based upon the claim of deprivation of beneficial use of their property without compensation. Specifically, in the first count plaintiffs seek a declaratory judgment as to their rights in the beds of certain dedicated but unaccepted streets and in the abutting beachfront properties, as against defendant borough, along with an adjudication of the unconstitutionality of certain other ordinances, referred to later in this opinion, as they affect plaintiffs’ property interests. The second count seeks money damages and injunctive relief against defendant American Telephone and Telegraph Company for trespass grounded on the claim that plaintiffs sustained damages by reason of the installation of an overseas cable in the bed of one of the streets running to the oeeanfront. The trial judge granted summary judgment and dismissed the complaint as to defendant American Telephone and Telegraph Company because its use of the property was authorized by an easement granted by defendant borough.

The trial, requiring some 1,000 pages of transcript and involving numerous exhibits, was directed primarily toward two issues: (1) whether the use by the public and by defendant borough of those portions of the Spiegle property east of the building line had been of such a nature and duration as to create a prescriptive easement in the public for beaeh purposes and in the borough for beach protection activities, and (3) whether plaintiffs could make any economic or beneficial use of their property eastward of the building line so as to establish an uncompensated taking of the beneficial use.

The trial court ruled against plaintiffs on these main issues and made various additional rulings as to the nature of plaintiffs’ interests in the beds of the streets and as to their claimed' right in accreted lands. Plaintiffs now appeal from the summary judgment granted in favor of American Telephone and Telegraph Company and from those portions of the judgment on the first count adverse to them.

For a better understanding of the various issues involved, it is necessary to- set forth the factual background and a general description of the five parcels of property involved. The Supreme Court opinion (46 N. J. at 482) refers to and describes only four of the parcels. These will be described in detail later in this opinion. Appended is a diagram which reproduces, in reduced form, the area involved as it appears in one of the exhibits, upon which we have superimposed additional explanatory notations.

Between 1957 and 1964 plaintiffs acquired title through various conveyances which referred to and were delineated as various lots on a map filed in the Ocean County Clerk’s Office, known as “Plan of Subdivision of Beach Haven, Island of Long Beach, Ocean County, New Jersey, Beach Haven Heights Company.” These properties are located in the southern portion of defendant borough, a municipality near the southerly end of Long Beach Island. As shown on the current tax map of the borough (on which the numbering system differs from that of the filed subdivision map), the Spiegle properties involved in this action encompass five oceanfront tracts.

The first and most northerly tract, bounded on the north by Jefferis Avenue, on the east by Beach Avenue and on the south by Kentford Avenue, is described on the tax map as one-half of Lot 12 and all of Lots 13 and 14, Block 42. This parcel is unimproved.

The second tract consists of Lots 7 through 10, Block 21, and is bounded northerly by Kentford Avenue, easterly by Beach Avenue (which is to some extent a paper street as will be indicated later in this opinion) and southerly by Leeward Avenue. In 1961 plaintiffs built a one-family, two-story residence on this tract abutting the north side of Leeward Avenue.

The third tract, encompassing part of Lot 8, Lots 9 through 12, and Lot 14, Block 20, is bounded northerly by Leeward Avenue, easterly by Beach Avenue and Lot 13, and southerly by Merivale Avenue. In 1958 plaintiffs erected a small, two-story, frame apartment house called the “Sand Castle,” fronting on the south side of Leeward Avenue, on Lot 9 and part of Lot 8.

The fourth tract, which is unimproved, consists of Lots 9 and 10, Block 19, and spans the area between Merivale and- Nelson Avenues.

The fifth tract, also unimproved, consists of Lot 3, Block 18. This parcel abuts the south side of Nelson Avenue.

Each parcel is, at least in part, east of the “Dune Area.” Under the dune ordinance, as noted above, no habitable buildings may be. constructed'eastward of the building line.

Over the years the borough has paved Nelson, Merivale, Leeward and Kentford Avenues eastward up as far as the beach or strand area. Water, gas and sewer mains have been installed in these streets, terminating near the end of the paved portions. Beach Avenue, the most easterly north-south street, was paved as far south as Liberty Avenue- almost four blocks north of plaintiffs’ most northerly tract. The remainder of its bed, as shown on exhibits received in evidence, remains either unpaved and on the strand or below the mean high water line of the Atlantic Ocean.

. The following excerpt from the trial judge’s letter opinion accurately summarizes the topographical setting of Long Beach Island, particularly the area in the vicinity of plaintiffs’ property, the continuing efforts of various governmental agencies to protect the shoreline from deterioration resulting from storms and erosion, and the effect of the savage storm of 1962:

. As with all barrier beaches along the Atlantic coast, the entire length of [Long Beach] island including the Borough was originally-bordered along its easterly side at varying distances from the mean high water line by a continuous chain of sand dunes. These served to help protect the island from the ravages of the sea and constituted an effective barrier until man changed their profile or removed them completely. In the Borough those dunes remaining are immobilized by natural vegetation, dead tree branches and fencing.
The topography of the Borough is such that it slopes gradually from the top of the dunes in a westerly direction to Little Egg Harbor and drops much more precipitately eastward to the mean high water line of the Atlantic Ocean.
Since the early 1920’s the Borough’s easterly shore line has suffered much erosion and some subsequent accretion. To stabilize the beach area and protect the remainder of the Borough, the State and Federal Governments have at various times joined with the Borough in expending funds to erect and maintain jetties and groins to lower the force of the littoral current and encourage accretion. Public monies have also been expended in piping sand from Little Egg Harbor Bay across the Borough to partially replace sand scoured from the beach by tides and storms. The Borough has erected fencing and used tree limbs and other sand-catching devices in the dune area to assist in enlarging and stabilizing the dunes and the beach eastward to them.
All of these means have been employed in the area of the Spiegle property for the purposes enumerated.
On March 6 and 7, 1962 New Jersey was struck by a hurricane preceded by several days of strong northeast winds. As a result of the storm and tidal action many homes on the island including a number in the Borough near the Spiegle property were destroyed or severely damaged. In (he Kentford to Nelson Avenue area the protective dunes were so completely leveled that two witnesses described it as “flat as a prairie.”

It was after the 1962 hurricane that the borough adopted the dune ordinance designed to perpetuate the protective sand dunes bordering the Atlantic Ocean. As noted above, no habitable structure was permitted to be constructed in the Beach-Dnne Area (that area lying easterly of the building line). The ordinance is set forth at length in Justice Haneman’s opinion in Spiegle and need not be repeated here.

In early 1967, subsequent to the Supreme Court’s derision in the earlier actions, plaintiffs applied to the borough’s governing body for a fence permit pursuant to the borough’s fence ordinance and to the building inspector for permits to erect a one-family dwelling on the first, or most northerly tract, on the north side of Kentford Avenue and a four-family apartment on Lots 9 and 10, Block 19 (the northerly half of the fourth tract), fronting on Merivale Avenue.

Plaintiffs received no response to their request for a fence permit. Both applications for building permits were denied because the construction planned in both extended eastward of the building line and were therefore violative of the dune ordinance, and because it would have been impossible to provide road access or utilities to the proposed buildings. This action then ensued.

The Spiegles and the borough agree that the paved portions of the streets adjacent to Spiegles’ lands have been accepted and maintained by the borough. The Spiegles claim a superior interest to that of the borough in the unpaved portions of the streets which lie on the beach and have never been formally accepted by the borough. They further contend that accretion of land following earlier erosion has extended their property rights to the mean high water line of the ocean. They assert that as a consequence the borough has no right to use or regulate these properties and that the public may not utilize these tracts for beach purposes.

The trial court determined that the public has acquired an easement for beach purposes and that the borough had the right to provide for protection of the adjacent lands from the ravages of the sea by utilizing all of plaintiffs’ property east of the building line. However, the court found that the borough had relinquished its beach easement to that portion of Block 20 consisting of all of Lot 9 and those portions of Lots 10, 11 and 12 lying behind plaintiffs’ bulkhead although east of the building line. It concluded also that plaintiffs were not entitled to the issuance of building permits by reason of the easement which the court ruled had been acquired for beach purposes. As a consequence of that prescriptive right, the court upheld the right of the municipality to regulate the use by ordinance of beach buggies.

Preliminarily, we note our agreement with the trial judge’s ruling that plaintiffs had no ownership interest in any accreted lands oceanward of their property lines. We agree also with the court’s conclusion that the municipality had accepted the dedication, of the paved portions of the streets running easterly to the dune line and that it had not abandoned or relinquished its right as to the future use for street purposes of the portions of these streets extending easterly of the building line. Since the borough has not appealed from the trial court’s direction that condemnation proceedings be brought as to such portions of the unaccepted but dedicated streets that have been used by the public for beach purposes, we express no opinion as to whether the municipality had a right to use such street areas for beach or other purposes without paying just compensation to the. Spiegles.

PEESCRIPTIVE EASEMENT

In our opinion, the record does not justify the finding that those portions of the Spiegle lands lying east or ocean-ward of the building line were subject to a public easement for beach purposes by reason of adverse user under N. J. 8. A. 2A:14~6. In arriving at this conclusion we attach no great significance to the fact that the high-water line of the ocean may have advanced several hundred feet landward since the 1930 subdivision map was filed.

To obtain any prescriptive right, entry and possession must have persisted for the required statutory time (20 years) and must have been exclusive, continuous, uninterrupted, visible and notorious, although not necessarily accompanied by a knowing intentional hostility by the user. Mannillo v. Gorski, 54 N. J. 378, 386 (1969). Any interest asserted through a claimed prescriptive easement must be judged by these same standards. Baker v. Normanoch Ass’n, Inc., 25 N. J. 407, 419 (1957).

We are not satisfied that the evidence as to public user, particularly during the period prior to plaintiffs’ first acquisition of their property in 1957, even considering the seasonal nature of the use, was of such frequency or of such character as to justify an inference of continuous or uninterrupted use or that such use was without the implied permission of the owners. In determining whether the beach area has been used sufficiently continuously or so intensely as to establish a prescriptive right, we have given consideration not only to the character of the acts constituting the alleged use but also to its natural condition prior to the 1950’s when the borough’s use became more intense-. Although the 60-year prescriptive period established by the Legislature for woodlands and uncultivated tracts is not made applicable specifically to beachfront property, the general rule would seem to apply here that where land is in a general state of nature and left unimproved by its owner, sporadic or even customary use of such property by a mere user is presumably permissive if there has been no actual deprivation of any beneficial use to the owner. See Meyers v. Pavalkis, 73 N. J. Super. 208 (App. Div. 1962); Annotation, “Prescriptive Easements — Presumptions,” 170 A. L. R. 776, 820 (1947). This conclusion is apart from any consideration of the legal question whether the public at large could acquire such an easement. Cf. Albright v. Cortright, 64 N. J. L. 330, 334-335 (E. & A. 1900).

The testimony indicated that members of the public had used the paved ends of the streets toward the ocean to gain access to the beachfront and to the water for fishing and bathing purposes, and that this beach area had never been closed off. Several residents of the borough, whose memory extended back to the mid-1920’s, testified that the foreshore of the beach had been used as an access way — principally by horsedrawn wagons — to Long Beach Township and to the inlet south of the borough for some 50 years. About 1914, long before the establishment of any lifeguards or maintenance of any public beaches along the beachfront, the beaches had been used by various unidentifiable people for the purpose of fishing and bathing. The beach area had been patroled seven days a week by the life-saving service of thé U. S. Treasury Department. A resident of the borough since 1891, who had been a tax collector, graphically described the tranquil, almost desolate character of the beachfront areas'in those early days. As a boy he had set rabbit traps there. There was no' public bathing beach and there were no lifeguards. People would walk on and fish from the beach area without objection from any quarter. The beachfront had been relatively uninhabited and undeveloped.

During the period from 1929 to 1942 there were still no lifeguards in the vicinity of the Spiegle property but the borough did clean the beach and would occasionally employ bulldozers to push the sand up to protect the street ends. This type of activity, to which plaintiffs have made no objection, has continued to the present time.

A borough resident testified that during his term as mayor (1950 to 1962) the borough had constructed the groins opposite Nelson and Jefferis Avenues extending into the ocean. These were designed to promote the building up of the beach, and did accomplish this objective.

Thus, until recent years use of the beaches, apart from cleaning and protective work performed by the municipality, appears to have been confined to occasional fishing, swimming and sunbathing by unidentified users. Significantly, none of the witnesses for the municipality could identify any of the individual users of the beach area other than themselves. Even up to 1960, as one witness who served as a lifeguard in the area testified, “There were very few people there and you were kind of interested if you saw one or two people besides the Spiegle family.”

Describing the use of the beach after he had first purchased property in Beach Haven in 1957, Spiegle testified:

The heach was rarely traveled except maybe a few beach buggies once in a great while. Once in awhile a casual passer-by would go by. Once in a great while you would see a fisherman throw a line in the surf. And in the summertime, occasional bathers would be here and there. That’s about all.

By 1959 slightly larger numbers of persons were using the beach. Spiegle installed poles on the northerly boundary line of his property extending to the water to keep the beach in front of the Sand Castle apartments “a little more private.” He claimed that he could recall only one complaint voiced by the borough about the poles and another by a neighbor in 1960.

It was only after 1960 that the borough began to post the beachfront with dags and lifeguards and restricted the swimming off the Spiegle property. Surfing in the waters in front of plaintiffs’ property began only in 1963. Other than a 1967 surfing contest carried on with plaintiffs’ consent, the Spiegles neither objected nor consented to this surfing activity.

A former lifeguard testified that he was responsible for enforcing borough rules restricting swimming in certain areas of the ocean in 1963 and 1964. The borough at that time limited the activity to the surf south of the north end of the Sand Castle apartments. Although the witness had used the beach as early as 1960, he could not recall seeing any lifeguards there until the following year. Erom that time public use of the beach areas increased.

The mayor of Beach Haven testified that the first borough lifeguards were first stationed at or around the Spiegle beachfront in 1961 or 1962. Spiegle had made no objection to the presence of a lifeguard in the area. During the mayor’s residence in the borough (since 1957), the beaches, including the Spiegle property, had always been open to members of the public who used these areas for swimming, fishing, riding beach buggies, and other beach activity. During the summer months the borough sent a truck down to the beach to pick up debris almost every day. Borough employees used the street, both paved and unpaved, to gain access to the beach for the purpose of policing it and maintaining it. However, patrol of the beach by beach buggie had not been instituted until 1964.

As outlined above, the borough’s activities as to the beach area involved included construction of timber jetties and maintenance and preservation of the beach areas from the 1930’s to the present.- Fences were constructed to prevent the sand areas from eroding. During the 1950’s stone groins were constructed opposite Nelson and Jeiferis Avenues.

Although the beach was always accessible to the public, it was not frequently or habitually used. More important, the borough made no effort to create a controlled public beach until the early 1960’s. Nor did it attempt to regulate use of the beachfront until 1960 or 1961. Cf. Brindley v. Lavallette, 33 N. J. Super. 344 (Law Div. 1954). Use of this area by the borough prior to that time was not necessarily inconsistent with the property owner’s rights. Por the most part, its activity was directed toward protecting the integrity of the beach and maintaining it by collecting refuse. The landowners did not, nor would they have any reason to object to the borough’s beneficial and possibly benevolent beachfront programs.

We conclude that the borough’s activities were not of such a nature as to destroy any property rights in the property owner or to create a prescriptive easement for beach purposes in the public through the borough’s activities prior to 1960. That is not to say that the borough may not have obtained a prescriptive easement to maintain the beach area itself. Assuming the validity of such a limited use, it does not derogate from the fact that the beneficial use totally remained in the property owner.

We express no opinion as to the nature and extent of plaintiffs’ right and title as against any claim on the part of the State that it may have acquired prescriptive ownership of this segment of the beachfront by reason of its having been submerged by the high water line at one time.

EIGHT TO COMPENSATION

We consider now whether plaintiffs have sustained the burden cast upon them of proving that the dune ordinance unduly burdens the beneficial use of their property.

The trial judge did not reach this issue because of his conclusion that the public had acquired a prescriptive easement to use the property for beach purposes which would preclude erecting buildings on it. In view of the fact that this litigation is already of long-standing duration, and since the record is adequate, substantial justice requires, that we exercise our original fact-finding jurisdiction and make the necessary findings and conclusions in relation to this issue.

The testimony establishes that major storms of hurricane intensity struck Beach Haven in 1944 and 1962. Much of the testimony adduced at the trial and most of the pictorial exhibits reproduced in defendant’s appendix relate to the damage done by those storms. Several homes nearby and to the west of the Spiegle properties were completely destroyed during the 1962 storm during which the ocean and bay waters merged at high tide over the southern portion of the borough. The present Spiegle home (which is west of the current building line) and the Sand' Castle apartment building (which straddles that line) received lesser damage from the storm, the foundation under the latter being weakened and the bulkhead in front of it being destroyed. During lesser storms, especially during the winter and early spring, the ocean frequently approaches to within a few feet of the Sand Castle apartments, lapping up against and sometimes over the bulkhead in front of it.

By way of background information, the building line was established by the 1964 map. It generally paralleled the dune area which ran parallel to the shore line. William H. Taylor; a consulting civil engineer whose firm was the borough engineer until 1966, said the line was fixed in such a way that he would not consider it safe to build east of it. Homes located inland could be endangered by the destruction of beachfront houses if, for example, debris from the demolished home was swept inland by the ocean waters. Moreover, if the sewer lines connected to a home on the beach were to be ruptured, by a storm, the municipal sewer system could become dogged with sand.

Plaintiff Robert D. Spiegle countered that there were several homes in Beach Haven built prior to the establish-meat of the building line and either east of its current position or on the dune area itself. These houses, belonging to his sister-in-law and father-in-law, - were not severely damaged in the 1962 storm. Both homes were serviced by all the normal utilities. On this basis plaintiffs argue that a dwelling could be safely built totally east of the building line.

None of this testimony is conclusive as to whether there has been a deprivation of a feasible use in the property. Beyond that we must consider the topography and geography of each lot involved in conjunction with the expert testimony presented by both sides.

We consider first the more northerly parcel consisting of one-half of Lot 12 and Lots 13 and 14, Block 42, on which plaintiff proposes to erect the one-family residence. This lot fronts on an unimproved portion of Beach Avenue for a distance of 100 feet and abuts the north side of an unpaved part of Kentford Avenue the same distance. The tract straddles the dune area which runs in a generally northeasterly direction through the lot. The elevation at the top of the dune at the north property line is 16.59 feet and 18.11 feet at its south line. The average elevation above sea level of the property entirely east of the dune area is about nine feet. That portion of this tract west of the dune area averages about 15 feet in elevation. The top of the dune is about 30 feet from the westerly property line at its northerly end and about 25 feet at its southerly end. The lot is 100 feet in depth—about 70% of which lies easterly of the top of the dune.

The residential structure proposed to be erected by plaintiffs would straddle the dune area with about 40% of it lying easterly of the top of the dune. The lot line itself is about 24 feet east of the paved end of Kentford Avenue.

Defendant’s expert witness, an engineer who has impressive experience in beachfront construction, having assisted in the design of some 160 beachfront structures of which about 60 were residences, conceded that from a structural standpoint a residence could safely be constructed on top of the dune as planned, although he had reservations as to the particular plan submitted by Spiegle. As to the necessary utilities, including a sewage line, the witness admitted they could be brought in, although there would be some danger of having them washed out.

Although construction of a structure straddling the dune area could have a detrimental effect on the dunes themselves and would be subject to hazards, from unusual storms, we are satisfied from all of the evidence that a safely constructed residence could be built on this lot and that plaintiffs, in making application for a building permit, had a sincere intention of using the property for that purpose. We further observe that the dune area itself will afford protection to the utilities servicing the residence, since those conduits leading to the proposed structure can be located behind the building line.

Our conclusion finds considerable support from the fact that a residence was constructed before the 1962 hurricane on a parcel of property immediately to the north of this tract having substantially the same physical characteristics as plaintiffs’. That structure has remained habitable to the present time. That the borough has assessed these parcels at a nominal value does not reduce the utility or limit the reasonable use of that property. Consequently, we find and conclude that the prohibition against all residential construction on this particular tract should be deemed to constitute a taking for which the plaintiffs should be fairly compensated.

The tract on which plaintiffs propose to erect the four-family apartment consists of two adjoining lots (Lots 9 and 10, Block 19 on the tas map). Lot 9 has a frontage of 40 feet on the south side of Merivale Avenue, while Lot 10, of equal size, fronts on the northerly side of Nelson Avenue. Both of these lots lie entirely east of the building line. A small strip of Lot 9 consisting of about 14 feet in width in the northwest portion and dwindling to about two feet at the southwest border is within the dune area. The remainder is on the beach. Lot 10 is 98% beach or plateau property. Both lots are about ten feet east of the end of the paved street area. The elevation above sea level of that portion of the tract located within the dune area ranges from 10 to 12 feet, while the remainder is about eight feet.

In 1963 this tract was about 100 feet landward of the mean high water line. However, as recently as 1957 virtually all of Lot 10, the more southerly of these two lots, and almost half of Lot 9 lay under the mean high water line and were washed lands. Van Dyke, a realtor, testified that he had observed this particular parcel partially under water on the day before he testified at the trial in July 1968.

Plaintiff s’ expert witness. North, maintained that a residential structure, either a single or multi-family house, could safely be built on this property, as well as anywhere on the beach area — even into the surf. He acknowledged that such a house would have to be erected on pilings of timber or steel rising about 12 feet in the air. Although it would be necessary to construct a connecting sewer line across or under the beach, install a pump (because of the elevation of the house), and run the sewer line upward into the structure, and a similar procedure utilized for all other utilities, he felt this also could be safely accomplished and was feasible from an economic standpoint. However, he offered no opinion as to the cost involved.

On the other hand, Nelke, defendant’s expert, while conceding that from a strictly engineering standpoint a structure designed for residential purposes could be safely erected on beachfront property lying east of the building line, maintained that it could not safely or economically be supplied with utilities, particularly sewerage connection.

In his view, any residential structure on the Spiegle site would be economically unfeasible to construct and impractical to maintain because of the hazards from wind and water to which it would be subjected. Such a residence, he observed, would be vulnerable not only to the more catastrophic storms such as occurred in 1944 and 1962, but also to any storm which he referred to as a."normal northeaster” in which the wind velocity reached 50 to 60 miles per hour and the average tides ran to 12 or 14 feet.

Since utility services would have to extend from the street over or under the exposed beach area to the structure, these lines could be ruptured from hurricane or heavy storm conditions, thus depriving the building of the habitability necessary for safe human occupancy. Eurthermore, the disruption of the sewer lines could result in their becoming filled with sand, thus endangering the borough’s entire sewerage sjrstem. Likewise, a rupture in the water lines might result in the municipal water tank being drained. Rupture of a gas line (if the house were served with gas) would also create a dangerous condition. Nelke maintained that it would not be practical to afford protection of the utility lines on the plateau area of the beach and that road service could not be provided or feasibly sustained.

Our review of the evidence as to the physical characteristics of this tract and the hazardous conditions to which it might be subjected because of its location satisfies us that although it may be possible from a strictly engineering standpoint to erect a residential structure on the site with supporting utilities, it would not be safe or economically feasible to do so from a common sense standpoint. As with any health or safety regulation, the interest of one property owner must be subjected to some degree to the welfare of the general public. Weighing the interest of the property owner against that of the public, we are satisfied that this tract has no present beneficial use for residential construction, absent an outlay of money out of all reasonable proportion to the use to be derived from it and the imposition of an unreasonable hazard on the public. We conclude that plaintiffs are entitled to no compensation as to this property.

The tract between Merivale Avenue and Leeward Avenue comprises a series of lots. including 9 and part of 8, Block 20 on which the Sand Castle apartment building is located. A bulkhead was constructed by the Spiegles eastward of Sand Castle to protect it from water damage and erosion. All of Lots 10, 11 and 12 and approximately one-half of Lot 14 are entirely easterly of the dune area. Much of the area, excluding Lot 14, was also under the 1956 high water line. Additionally, more remote portions thereof were washed by the highest tides at that time. Plaintiffs’ exhibit indicated that the elevation of these lots ranged between about five feet above the water line at the lowest point in the northwest corner to about 17 feet in the most southwesterly corner near the dune line. The tract in its entirety lay above the 1963 high water line.

For the reasons related above in connection with the proposed apartment house tract in Block 19, we conclude that plaintiffs have not demonstrated a denial of any beneficial use of this property by the dune ordinance and that they are entitled to no compensation therefore as to Lots 10, 11 and 12. As to Lot 14, there is no evidence in the record which would justify the awarding of compensation as to that particular parcel irrespective of the fact that its physical characteristics differ from those of Lots 10, 11 and 12.

Furthermore, that no buildings may be constructed on those lots lying totally or partially east of the building line does not deprive the Spiegles of the beneficial use of the property for beach purposes adjunct to their use of Lots 8 and 9 (Sand Castle). Therefore, we conclude that there is neither a showing of deprivation of economic benefit nor an unreasonable restriction on the use of plaintiffs’ property discussed above.

The Spiegle property in Block 21 also consists of a series of lots extending across both sides of the dunes. The portion comprising Lot 8 has a 100 feet frontage on the north side of Leeward Avenue and runs northerly to Kentford Avenue where it has a similar frontage. Both Leeward and Kentford are unimproved at these points. All of Lot 8 lies entirely east of the dune area except a strip of about 20 feet in width at the southerly end extending to 25 feet at its most northerly point running along the lot’s westerly border. Plaintiffs’ exhibit shows that the elevation above sea level of this lot ranges from somewhere between 6.30 feet and 6.70 feet on the easterly portion to approximately 15 feet on the westerly property line.

The geographic and topographic characteristics of Lot 8 ' are substantially similar to Lots 9 and 10, Block 19 and Lots 10, 11 and 12, Block 20 as discussed above. Eor the reasons set forth in the discussion of those, we conclude that plaintiffs’ property here is reasonably suitable for beach purposes only. Since this particular parcel may be used for such purposes in connection with plaintiffs’ abutting properties, we conclude that they have not been denied any reasonable beneficial use in reference to it.

As to Lot 3, Block 18 the record is insufficiently developed as to its particular characteristics to allow a final determination as to plaintiffs’ right to compensation.

INCIDENTAL QUESTIONS

Our determination that-plaintiffs own certain beach areas necessitates our finding thát they are entitled to the issuance of a fence permit for those properties, provided they comply with the fence ordinance. Eor a like reason we determine that the borough ordinances regulating beach buggy and surfing activities have no application to property privately owned by plaintiffs.

There is no dispute that the borough has accepted the paved portions of the dedicated streets running to the beach. As to those portions of the mapped streets not yet paved, we agree with the trial court that the borough has never relinquished the right to accept them. “Mere passage of time will not ordinarily bar an acceptance unless the offer is expressly conditioned upon acceptance within a limited time.” Velasco v. Goldman Builders, Inc., 93 N. J. Super. 123, 137 (App. Div. 1966).

An acceptance of an offer of dedication may be effectuated by any official conduct which manifests an intent to treat the land in question as dedicated to the public use. The borough’s grant of the franchise to American Telephone and Telegraph Company to lay cable in the Leeward Avenue street bed clearly evidenced such dominion as to constitute an acceptance of that particular section of the dedicated street. The acceptance is further evidenced by the continued use of the easterly end of the roadbed for access to the beach areas by both the municipality and the public. See Cunningham and Tischler, “Dedication of Land in New Jersey,” 15 Rutgers L. Rev. 377 (1961); see also Sarty v. Millburn Tp., 28 N. J. Super. 199, 205-206 (App. Div. 1953).

We need not decide the further question whether acceptance of part of a dedicated street may constitute acceptance of the whole of the dedication.

Consequently, we affirm the dismissal of the complaint and the grant of summary judgment as to defendant American Telephone and Telegraph Company.

The final issue required to be resolved is plaintiffs’ incidental challenge to the validity of that section of the borough zoning ordinance establishing a percentage of damage beyond which a nonconforming construction may not be replaced or reconstructed. The trial court did not pass on this issue. The applicable statute (N. J. S. A. 40:55-48) provides for restoration or repair in the event of partial destruction of the nonconforming structure. “What constitutes ‘partial destruction’ must depend upon the facts of each case * * *. We go no further * * * than to hold that a percentage delineation by ordinance is not authorized.” H. Behlen & Bros. v. Mayor, etc., of Kearny, 31 N. J. Super. 30, 39 (App. Div. 1954). We deem E. Behlen & Bros. controlling in this case and accordingly declare the section of the zoning ordinance in question invalid.

That portion of the judgment adjudicating that the public or- the borough ■ has acquired a prescriptive easement for beach purposes over plaintiffs’ property is reversed. .

Defendant borough is ordered to institute ' eminent domain proceedings against plaintiffs as to Lots 13 and 14 and one-half of 12, Block 42 on the tax map.

As heretofore mentioned, the .borough has not appealed from that portion of the judgment directing institution of eminent domain proceedings with respect to the street areas currently being used for beach purposes. That portion of the judgment therefore remains undisturbed.

The remainder of the judgment is affirmed for the reasons given by the trial court except as to Lot 3, Block 18, for which compensation is denied without prejudice to plaintiffs’ right to seek condemnation on the basis of a future claim of deprivation of beneficial use if the municipal ordinance is ever raised as a bar to any effort by plaintiffs to make such use.

Eo costs.

      The “Dune Area” as opposed to the “Beach-Dune Area” is that land, about 20 feet in width, lying between the bulkhead and building lines. See Spiegle v. Beach Haven, supra (46 N. J. at 489).


author: Lane, J. A. D.

text:
    IN THE MATTER OF RIDGWAY, McLEOD & ASSOCIATES.
    Superior Court of New Jersey Appellate Division
    Argued September 14, 1971
    Decided September 20, 1971.

      Before Judges Kilkenny, Labkecque and Lane.

      Mr. David H. Bothberg argued the cause for appellant Ridgway, McLeod & Associates (Messrs. Bothberg & Linder, attorneys; Mr. Bothberg on the brief).

      Mr. Charles B. Parker, Deputy Attorney General, argued the cause for respondent (Mr. George F. Kugler, Jr., Attorney General, attorney; Mr. Stephen Skillman, Assistant Attorney General, of counsel; Mr. Philip I. Kagan, Deputy Attorney General, on the brief).
   The opinion of the court was delivered by

Lane, J. A. D.

Ridgway, McLeod & Associates appeals from an order of the Bureau of Securities suspending it from operating as a broker-dealer for 30 days. The bases of the suspension were: (1) appellant’s failure to maintain the minimum net capital requirement, in violation of Bureau of Securities Begulation 13:13-3, and (2) appellant’s attempt to sell its own securities in order to raise funds to comply with the minimum net capital requirement, in violation of Regulation 13:13-40.

■Regulation 13 :13-3> “Minimum Capital,” provides:

No registration as broker-dealer shall be issued unless the applicant therefor has a minimum capital of $10,000. or has posted with the Bureau of Securities a surety bond in the amount of $10,000.
No registration as a broker-dealer shall be issued to an applicant engaged exclusively in the sale of investment company shares unless the applicant therefor has a minimum capital of $5,000. or has posted with the Bureau of Securities a surety bond in the amount of $5,000.
No registration as a broker-dealer shall be issued to an applicant having custody of clients’ funds or securities unless such applicant has a minimum capital of $25,000. or has posted wit'h the Bureau of Securities a surety bond in the amount of $25,000.

Regulation 13:13-40, “Restriction,” provides:

No person shall be permitted to issue, offer or sell securities in this State solely for the purpose ■ of providing minimum capital requirements necessary in order to become registered as a broker-dealer.
Appellant admits that its capital fell below $10,000- during the time that it was operating as a broker-dealer. It further admits that it sold its own securities to customers for the purpose of complying with the minimum capital requirements.

I

The argument is advanced that Regulation 13 :13-3 requires a minimum capital of $10,000 only at the time of registration and that it does not require the maintenance of such minimum capital during the period of registration. The regulation must be interpreted to manifest the intent of the Bureau of Securities. Language is not to be rigidly interpreted if it is apparent that such interpretation was not intended. Alexander v. New Jersey Power & Light Co., 21 N. J. 373, 378 (1956). Words alone do not control. The intent must be gleaned from the subject matter, the contextual setting, and related statutes. Loboda v. Clark Tp., 40 N. J. 424, 435 (1963). This rule of construction applies to rules and regulations of administrative agencies. In re Plainfield-Union Water Co., 57 N. J. Super. 158, 177 (App. Div. 1959); In re Port Murray Dairy Co., 6 N. J. Super. 285, 300 (App. Div. 1950).

To determine the intent of the Bureau in adopting the regulation, we look to the purpose of the minimum net capital requirement. We have found no New Jersey cases specifically on point. There are, however, federal cases which have discussed the intent of a similar regulation of the Securities and Exchange Commission, SEC Bule X15c3-1 (a), 17 C. F. R. 240.15e3-l(a).

Although the SEC rule is differently worded and by its language requires the maintenance of the minimum capital throughout the period of registration, its intent is the same as 13:13-3. The intent is to protect the public by assuring that a broker-dealer will be financially able to settle its affairs. Don D. Anderson & Co. v. Securities and Exchange Comm, 423 F. 2d 813, 816 (10 Cir. 1970); Blaise D’Antoni & Associates, Inc. v. Securities & Exch. Comm., 289 F. 2d 276, 277 (5 Cir.), aff'd 290 F. 2d 688 (5 Cir.), cert. den. 368 U. S. 899, 82 S. Ct. 178, 7 L. Ed. 2d 95 (1961).

The appellant’s interpretation of the regulation would render it meaningless. That interpretation would only require the necessary financial responsibility at the time of registration. Once registered, a broker-dealer could proceed to use up his capital, and the public would be given no protection. The importance of the rule in terms of public protection indicates the invalidity of such interpretation.

Furthermore, when read in conjunction with other sections of the Regulations, the intent to apply the minimum net capital requirement to all times during which a broker-dealer is registered is clear. Regulation 13:13-2 requires the filing of an annual certified financial statement. This clearly indicates an intent to continually review a broker-dealer’s financial status. This intent thus indicates a similar application of the minmum capital requirement.

■ Intent is also indicated by Regulation 13:13-24 which states that a broker-dealer’s registration expires “on December 31st of the year next ensuing the year in which the registration became effective.” Essentially, this regulation requires renewal every two years. Regulation 13:13-25. If appellant’s interpretation of Regulation 13:13-3 were correct, a broker-dealer would need only .meet the capital requirement every two years. This would afford little protection to the public.

The most instructive section of the regulations is 13:13-4, the bond provision. Under Regulation 13:13-3 a $10,000 surety bond is an approved substitute for the minimum capital requirement. This bond must be in force for the two-year period of registration unless released by the Bureau Chief. Regulation 13 :13-4. Since a two year bond is required in lieu of the capital requirement, certainly the capital requirement itself must be for two years.

Einally, the Bureau’s own interpretation of Regulation 13:13-3 is important. Harper v. New Jersey Mfrs. Cas. Ins. Co., 1 N. J. 93, 99 (1948); In re Plainfield-Union Water Co., supra, 57 N. J. Super. at 177. Obviously, the Bureau has interpreted the regulation to require the minimum capital at all times during registration. This interpretation further undermines the position of appellant.

The appellant’s position is based entirely on the language of Regulation 13:13-3 which unfortunately is ambiguous on its face. However, by all means of interpretation available, the regulation applies to the entire period of registration. Appellant was required to maintain a minimum net capital at all times subsequent to its initial registration as a New Jersey broker-dealer. This interpretation is in line with the logic of the rule. Cf. Allendale Field and Stream Ass’n v. Legalized Games, 41 N. J. 209 (1963).

Regulation 13 :13-40 must be construed in the same manner. It prohibits the sale of securities for the purpose of providing minimum capital requirements at any time.

II

Appellant argues that it is presently meeting the minimum capital requirement and that the evidence before the Bureau indicated that no harm came to any member of the public as a result of appellant’s violation of the regulations. The evidence amply supported the Bureau’s finding that the violations were wilful. There was an undue financial risk to the public by reason of appellant’s violations. The discipline for past violations is proper regardless of the lack of actual injury to the public. Don D. Anderson & Co. v. Securities and Exchange Comm., 423 F. 2d 813, supra; Blaise D’Antoni & Associates, Inc. v. Securities & Exch. Comm., 289 F. 2d 276, supra; cf. Securities & Exchange Comm. v. Cohn, 216 F. Supp. 636 (D. C. N. J. 1963); Securities and Exchange Comm v. General Securities Co., 216 F. Supp. 350 (S. D. N. Y. 1963).

The findings by the Bureau were based on substantial credible evidence and will be affirmed. Atkinson v. Parsekian, 37 N. J. 143 (1962). Appellant has failed to show that the 30-day suspension was arbitrary, capricious or unreasonable. F. & A. Distrib. Co. v. Div. of Alcoholic Beverage Control, 36 N. J. 34 (1961); Higgins v. New Jersey Bureau of Securities, 100 N. J. Super. 266 (App. Div. 1968).

The order of the Bureau of Securities is affirmed, and the matter is remanded to the Bureau for the imposition of the suspension which the Bureau had commendably stayed pending appeal.