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

text:
    MARY MURPHY, WIDOW OF JAMES C. MURPHY, DECEASED, APPELLANT, v. DIVISION OF PENSIONS, CONSOLIDATED POLICE & FIREMEN’S PENSION FUND COMMISSION OF THE STATE OF NEW JERSEY, RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued October 12, 1971
    Decided November 30, 1971.

      Before Judges Coneokd, Matthews and Fkitz.

      Mr. Larry L. Leifer argued the cause for appellant {Messrs. Friedman & D’Alessandro, attorneys).

      Ms. Prudence H. Bisbee, Deputy Attorney General, argued the cause for respondent {Mr. George F. Kugler, Jr., Attorney General, attorney).
   The opinion of the court was delivered by

Conford, P. J. A. D.

Pursuant to N. J. S. A. 43 :16 — 4, petitioner applied to the Consolidated Police and Firemen’s Pension Fund Commission for benefits because of the asserted service-connected death of her husband, a member of the Fund. Following denial of her application petitioner filed a timely appeal for an administrative hearing. The hearing officer recommended that her application for accidental death benefits be approved. The Commission, however, affirmed its original decision denying the application.

Decedent was employed by the Newark Police Department from November 25, 1941 until his death on April 15, 1968, his last day of active duty being April 14, 1968. His age at death was 59. Petitioner was her own principal witness. What follows is based on her testimony and certain stipulated matters. On the date of his death and for several years prior thereto decedent was assigned to the Violations Bureau of the Warrant Squad. His regular duties included indexing traffic tickets, compiling statistics and making court appearances in reference to them, etc. Decedent’s regular hours of work were from 8 a.m. to 4 p.m. In the last few months prior to his death he had “pains and tightness in his chest,” and his breathing was deep. He complained of the hard work and that he was tired. Without objection, petitioner was permitted to testify decedent had to pack and cart “drawers” filled with traffic tickets. He had in the early months of 1968 been packing such records for the year 1967. When he did that he came home and complained of being “very tired.”

After being out for a time with an ankle injury decedent returned to work April 9, 1968. When he got to work he was told there was an emergency connected with the recent death of Martin Luther King, and he was required to work two hours extra. When he returned home he was very tired. Beginning April 10 he was required to work 12 hours a day, from 6 a.m. to 6 p.m. and did so until the last day he worked, April 14, 1968, which was Easter Sunday. During that period he became more and more tired and would look worse, have trouble breathing, and complain of chest pains. He also spoke of “tension” because of the uncertain “situation” in the city.

When decedent returned home April 14 he had no dinner, went straight to bed, arose for an hour after about three hours of rest, and then, after a snack, returned to bed. On arriving home he had been breathing very heavily, had chest and shoulder pains, and was “white as a sheet.” He was restless and tossing in bed. When he arose about 5:30 in the morning his pains were “very severe” and his shortness of breath had become worse. A little later petitioner and her son called the emergency squad, which administered oxygen and brought decedent to Martland Hospital where he was pronounced dead on arrival. The medical examiner’s death certificate, offered in evidence, states as cause of death, “occlusive coronary arteriosclerosis.”

On cross-examination petitioner was asked to describe the “lifting” decedent had to do. She said the drawers were heavy,

* * * he would say the drawers would jam sometimes, and one fellow would try to get it or another fellow, and they would have to carry them out and work on them and put them together. Now, for instance, as I say, then at this time of the year they are working oil the tickets and packing them from the previous year, from the beginning of the year, maybe they were boxes like the size of that, you know, that's paper and that’s heavy.

Asked also on cross-examination about decedent’s condition from April 9 to the 14th she testified:

Q Did you notice a marked deterioration that occurred rapidly that you could see?

A I could see it.

Q And when did you see this change? When would you say he was in good health and when did he appear to you to be in rather poor health?

A I would say just prior to April the 9th, prior to the day he started working the longer hours he appeared in good health.

Petitioner offered in evidence a report of Dr. Emanuel Kiosk, dated October 12, 1968, which was received without objection. This had apparently been supplied to petitioner’s counsel and refers to an electrocardiogram of decedent (of unspecified date) showing “a severe degree of left Bundle Branch Block, probably due to coronary athroselerosis.”

Also introduced in evidence without objection was a report to petitioner’s counsel of Dr. Saul Lieb, dated April 24, 1969, and reading in part as follows:

I have reviewed the factual and medical material that you sent me in the above matter.
* *
The report of Dr. Kiosk indicates that he examined Mr. Murphy on only one occasion and that an electrocardiogram showed a severe degree of left bundle branch block, probably due to coronary athrosclerosis. He does not indicate the date of this examination in his report, but I would assume from the statement that you have given me, that this was on March 23, 1968.
It can be assumed from this examination and from the fact that a few months before his death, that he started to note a shortness of breath and was very pale and would put his hands to his chest and breath deeply, that he was suffering from an advanced degree of arteriosclerotic heart disease several months before his death.
Assuming that he returned to work on April 9, 1968, and worked 10 hours that day, 12 hours the following day and the two days following, with appearance of heavy breathing and being pale and tired and then developing chest pain and finally sweating profusely, it would be my opinion that he had developed a marked degree of coronary insufficiency, superimposed upon his pre-existing arteriosclerotic heart disease in this period. His coronary insufficiency increased while he worked 12 hours on Easter Sunday and then progressed to a point where he expired from the result of his coronary insufficiency on April 15, 1968.
Assuming that he worked these long hours at the same time that he was exposed to the emotional stress and strain of emergency duty in his work, and at the same time had to pull heavy file drawers in his work, it would be my opinion that these circumstances of his work contributed appreciably to the production of this attack of acute coronary insufficiency which then superimposed upon his preexisting arteriosclerotic heart condition, caused his death.
There is causal relationship, therefore, between his work and his death.

In overruling tbe recommendation of tbe bearing officer and denying tbe petition for death benefits tbe Commission noted that “no medical testimony was offered at tbe bearing”; tbe report of Dr. Lieb “assumed facts not established by tbe evidence,” i. e., tbe emotional stress and the pulling of heavy file drawers; tbe doctor’s reliance was upon hearsay and tbe report of another doctor, and be was not subjected to cross-examination; and that the absence of Dr. Kiosk “creates an inference” his testimony would be unfavorable to petitioner. The Commission also said there was no “competent” evidence of exposure to emotional stress or emergency at work or of physical stress at work immediately prior to death.

As a conclusion of law the Commission found petitioner did not sustain her duty to show decedent ££lost his life while on duty,” within N. J. S. A. 43 :16-4. He died as a result of coronary occlusion “while off duty.” There was not adequate proof of causal relationship between longer hours of duty and death.

Insofar as the decision of the Pension Fund Commission and the supporting argument of the Attorney General depend upon the fact that decedent officer died at home, we do not agree that this, alone, precludes a determination that he “lost his life while on duty,” within the intent of N. J. S. A. 43:16-4. In our judgment, if there is a material causal connection between work duty and death, decedent may be held to have died while on duty, even if he actually expired at home, within the reasoning of a number of cases analogizing the Workmen’s Compensation Act to the subject enactment. Cf. Kochen v. Consolidated Police, etc., Pension Fund Comm., 71 N. J. Super. 463, 475 (App. Div. 1962); Fattore v. Police, etc. Retirement Syst. of N. J., 80 N. J. Super. 541, 549 (App. Div. 1963); but see Wagner v. Bd. of Trustees, Pub. Employees’ Retirement Syst., 87 N. J. Super. 498, 503 (App. Div. 1965), certif. den. 45 N. J. 300 (1965); McGee v. Bd. of Trustees, Pub. Employees’ Retirement Syst., 45 N. J. 576, 579 (1965).

In other words, we regard the principles set down in relation to workmen’s compensation recovery in a heart-death case, in Dwyer v. Ford Motor Co., 36 N. J. 487 (1962), as applicable here. The situation may be different if the claim is only for permanent disability. Note the amendment of N. J. S. A. 43:16 — 2 by L. 1964, c. 242, § 2, to require a showing that the disability is “a direct result of a traumatic event occurring while performing [the employee’s] regular or assigned duties.”

On the merits of the issue of causal connection between decedent’s work duties and his death from heart disease, which was resolved in the affirmative by the hearing officer and the opposite by the Commission, we are constrained to remand for a new hearing and findings and determination by the Commission.

The principal reason for our foregoing determination is the rejection by the Commission of Dr. Lieb’s expert opinion in favor of the claimant, as reflected in his report, because it “assumed facts not established by the evidence,” was based on hearsay and on the conclusions of another physician (the treating physician, who did not testify but whose report was adduced in evidence), and was not subject to cross-examination.

We gather from the Commission’s reasons and findings that to the extent that the factual assumptions by Dr. Lieb were supported only by the testimony of the claimant, Mrs. Murphy, such testimony was regarded by the Commission as incompetent hearsay. But this was not, even if true, a valid reason for the automatic rejection of the evidence without weighing it for any inherent probative weight it might have on the issue to be decided.

In the first place, neither Mrs. Murphy’s testimony nor Dr. Lieb’s report was objected to at the hearing as hearsay or as based thereon. In such a case a gwosi-judicial tribunal, particularly an administrative body, should give such evidence its natural probative weight and effect without regard to its technical incompetency. Kopitnikoff v. Lowenstein Bros., Inc., 24 N. J. Super. 434, 443 (App. Div. 1953), cited with approval in Aladits v. Simmons Co., 47 N. J. 115, 119 (1966) (both workmen’s compensation cases).

Secondly, such relevant statements of the decedent, to which Mrs. Murphy testified, as can fairly be regarded as having been made in good faith and upon his personal knowledge, if the circumstances indicated a probability of their trustworthiness, were admissible under Evidence Rule 63(32). This would certainly apply to the declarations as to decedent’s physical symptoms after overtime workdays and possibly as to his accounts of what he had been doing on the job. We caution, however, that admissibility does not necessarily equate with substantial probative weight. For example, on the basis of what has been adduced thus far, the alleged statements concerning emotional strain because of the public tension attendant upon the then recent assassination of Martin Luther King would appear not to have warranted substantial weight on the main issue here in view of the inside and largely clerical nature of decedent’s work.

Militating, along with Evidence Rule 63(32), to reject the approach of the Commission in this case, is the liberal attitude of our Supreme Court in workmen’s compensation cases toward reliance upon trustworthy hearsay declarations of the workman where his lips are sealed by death when the hearing takes place. Aladits v. Simmons Co., 47 N. J. 115, 119 (1966).

It should be further observed that at the rehearing in this matter all evidence questions in the case will be controlled by the Administrative Procedure Act (effective September 1, 1969) which provides, N. J. S. A. 52:14B-10, that the parties are not bound by the rules of evidence and that all relevant evidence is admissible (with certain exceptions, not including any prohibition of hearsay).

The foregoing concerns itself principally with a rule relating to hearsay evidence in the administrative hearing. We turn to the rejection by the Commission of Dr. Lieb’s report “on grounds that it is based on assumed factors not established by the evidence.” If by this the Commission meant that the factors were not established by the evidence because the evidence was hearsay, what we have said heretofore controls, and we disagree with the Commission. If, on the other hand, the Commission meant that the report assumed factors not established by any acceptable evidence, hearsay or otherwise, then its basis for a rejection of the claim is less vulnerable. Our concern that the latter of these alternatives, while not specifically articulated in the Commission’s decision, might well be the fact, is generated by an apparent absence in the testimony of any evidence, hearsay or otherwise, except the conclusional statement of Mrs. Murphy, pertaining to the necessity for the decedent “to pull heavy file drawers in his work,” a conjunctive factor relied upon by Dr. Lieb in his stated .hypothesis in order to arrive at his conclusion with respect to causal relationship. It is important here to distinguish between that which is hearsay (and admissible for what it is worth, as above) and that which merely represents a conclusion of the witness from what she heard. In responding to inquiry as to whether the decedent had made any statements to her concerning what he had to do at work, she replied that he would cliave to take these drawers filled with these here traffic tickets.” She immediately added, “I don’t know how big the drawers were, but they would be kind of heavy, * * Later, on specific inquiry seeking more detail, she responded by saying, “Well, actually, I couldn’t, except that I mean as far as size or anything else, I couldn’t tell you the size of it, but I know they were heavy, * * The analytical difficulty is at once apparent. If Mrs. Murphy’s knowledge of the heaviness of the drawers represented a reiteration of something told to her by her husband, that information constitutes admissible hearsay for what it is worth pursuant to our discussion of that problem above. If, on the other hand, it represents her conclusion, from a description given by her husband to her short of a statement by him that the drawers were heavy, then that conclusion is not available as evidence, but should be left to the finder of fact to draw' or not ais he sees reasonably fit. ' -

Subjected to such analysis, it is to be seen that the true source of the testimony (as distinguished from evidence) with respect to the pulling of heavy drawers is pivotal with regard to the assumption by Dr. Lieb. Unless there is some qualification on the remand, there is no reason to believe that such an assumption is not necessary to his conclusion, since the assumption was conjunctively expressed. Accordingly, the matter of whether Dr. Lieb’s report legally supports a finding of causal relationship — and it is the only evidence in the case with respect to causal relationship — depends upon the nature of the testimony, i. e., whether it is hearsay or conclusional.

Under these circumstances we are loath to determine the result upon this record, especially where the conclusions and determination of the hearing officer and the Commission were at odds. In our view this situation further justifies the remand which we are ordering.

We take this opportunity to suggest that while the formality of procedure is less demanding and the rules of evidence are less compelling, as we have pointed out above, in the administrative agency, there is a point at which confidence in the determination of the truth should not be subordinated to practicalities of the forum. Eor reasons which appear frequently in reported cases in determinations in the administrative agency such as that agency here concerned and the Division of Workmen’s Compensation, the procedural rigor of the common law trial before a jury is neither necessary nor practical. But recognition of this fact should not be mistaken for a condonation of laxity of proofs in the procedure, at best, and carelessness at worst.

In the instant matter an insistence on better evidence seems not unreasonable. Specific proofs by others in the police department as to the weight and size of the cartons and of the timing of the carrying thereof in relation to the last few days of decedent’s life, when he was working overtime, was presumably available, and should have been adduced.

So far as using reports of physicians as evidence is concerned, the rejection of such reports by the Commission in its decision, without giving the claimant an opportunity to offer the oral testimony of the physician, is obviously unfair under the circumstances. The hearing officer had accepted the reports in evidence, having announced at the outset that he would not be guided by the strict rules of evidence, and the attorney for the Pension Fund failed to object thereto. Aside from those considerations, however, it is obviously preferable on such a close medical factual issue as that here presented to have the medical expert proof submitted through oral testimony, subject to cross-examination, rather than through oral reports.

The determination is reversed and the matter remanded for a new hearing and new findings, conclusions and determination by the Commission. We do not retain jurisdiction. No costs.

       Tlie scheme of N. J. S. A. 43:16-1 et seq. is superseded as to persons becoming police or firemen after the effective date of L. 1944, c. 255, creating the retirement system governed by N. J. S. A. 43:16A-1 et seq.


source: Caselaw Access Project

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

license: Public Domain

text:
    ALFRED S. GAMRIN, ET AL., PLAINTIFFS-APPELLANTS, v. PALISADES NEWSPAPERS, INC., A NEW JERSEY CORPORATION, DEFENDANT-RESPONDENT, AND THE CITY OF ENGLEWOOD IN THE COUNTY OF BERGEN, A MUNICIPAL CORPORATION, DEFENDANT.
    Superior Court of New Jersey Appellate Division
    Argued October 12, 1971
    Decided November 30, 1971.

      Before Judges Goldmann, Collester and Mnm.

      Mr. Donald P. Sharkey argued the cause for appellants (Mr. John B. M. Frohling, attorney).

      Mr. Burton T. Cohen argued the cause for respondent (Mr. Walter Henry Jones, attorney).
   The opinion of the court was delivered by

Goldmann, P. J. A. D.

The issue to be determined on this appeal from a judgment in favor of defendant Palisades Newspapers, Inc. (Palisades) is the proper construction of N. J. S. A. 35 :2 — 1 — in particular, whether Palisades was correct in charging the City of Englewood for official advertisements on the basis of an agate rule measurement of the space occupied, or whether the newspaper should have charged on the basis of an agate line count.

Plaintiffs, ten citizens and taxpayers of Englewood, brought an action pursuant to N. J. S. A. 2A :49-l to recover on behalf of the city overpayments alleged to have been made by it for official advertising in Palisades’ Press-Journal, a newspaper circulating in Englewood, Bergen County; to enjoin further official advertising in that newspaper except in1 the manner and subject to the terms and conditions set forth in N. J. S. A. 35:2-1, and for related relief. Palisades’ answer denied the essential allegations of the complaint and set up certain defenses. Englewood took a neutral position in its answer, leaving plaintiffs to their proofs.

On the basis of the pleadings and depositions, supplemented by certain affidavits, plaintiffs moved for partial summary judgment adjudging that Palisades’ manner of computing charges for official advertising was illegal and the charges thus computed excessive, and that plaintiffs were entitled to recover on behalf of the city overpayments already made. Palisades countered with a motion for summary judgment. The city took a position in support of plaintiffs. The trial judge ruled in plaintiffs’ favor, reserving for future determination, following a plenary trial: (a) Press-JournaVs net paid circulation at relevant times from September 1965 (when official advertising in the newspaper began) to date, and (b) the amount of excess charges plaintiffs were entitled to recover on behalf of the city.

Palisades appealed from the judgment. The city, considering its position the same as plaintiffs’, appointed their attorney as special counsel to represent it as well. Counsel then filed a cross-appeal on behalf of plaintiffs and Englewood. Prior to argument Palisades’ counsel moved for leave to supplement the record, whereupon this, court remanded the matter to the trial court to enable Palisades to move for a revision of the decision under R. R. 4:55-2 (now R. 4:42-2) or to reopen the partial summary judgment under R. R. 4:62-2 (now R. 4:50-1). On remand the trial judge determined that a plenary hearing should be had as to all issues and thereupon vacated the partial summary judgment he had granted.

At the conclusion of the plenary hearing the same judge who had granted the partial summary judgment reversed his original holding and found in favor of Palisades on all issues. Eollowing the entry of an accordant final judgment plaintiffs filed a new notice of appeal, the city having determined not to pursue the matter further. The previously filed notices of appeal and cross-appeal from the partial summary judgment were dismissed by stipulation.

Beginning with publication in 1965 Palisades represented that the Press-Journal was authorized to publish official advertising as defined in N. J. S. A. 35:1 — 1, by reason of its meeting the qualifications set out in N. J. S. A. 35:1-2.2. It has at all times also represented that the average weekly net paid circulation of the newspaper was more than 5,000 and less than 10,000, and it was therefore entitled under N. J. S. A. 35:2 — 1 to charge 22^ per insertion for official advertising “per agate line.” (L. 1968, c. 134, enacted during the pendency of this action, increased the rate to 24j¿ for newspapers having such circulation.) Englewood has since September 1965 placed numerous official advertisements in the Press-Journal and, until this litigation, paid Palisades the charges as computed by it.

N. J. S. A. 35:2-1, which sets the rates for official advertising, provides: (The omitted statutory language fixes increased rates for various categories of papers with greater circulation.)

The price to be paid for publishing all official advertising as defined in section 35 :1-1 of this Title in newspapers shall be as follows:
In newspapers published in the State of New Jersey having a bona fide net paid circulation of up to 2,500 copies, the rate shall be $0.16 per agate (or 5% point) line for each insertion; in the ease of any newspaper having a bona fide net paid circulation of not less than 2,500 copies nor more than 5,000 copies, the rate shall be $0.20 per agate line for each insertion; and in the case of any newspaper having a bona fide net paid circulation of not less than 5,000 copies and not more than 10,000 copies, the rate shall be $0.22 per agate line per insertion; * * * but before any newspaper can charge the foregoing rates, the publisher or business manager of such newspaper must file with the properly authorized officer of every municipality, county or governing body, placing official advertising in such newspaper, an affidavit setting forth the average net paid circulation of such newspaper for the 12 months’ period ending September 30 next preceding and the rate to be charged for official advertising, which in no ease shall be in excess of, or below, the rates provided in the foregoing schedule.
The charge per agate or 5% point line shall be based on measurement of a line or not less than 10 ems in width, but date lines, paragraph endings, titles, signatures and similar short lines or lines that require special emphasis, such as the title of the notice, shall be computed as full lines where set to conform to the usual rules of composition.

Plaintiffs5 complaint alleges that Palisades has improperly construed and illegally applied the statutory language in that (a) it computes its charges by measuring the gross space occupied by official advertisements, using an agate ruler and charging 22f, for every agate space occupied by the particular advertisement, rather than for actual lines of type; (b) although it charges the statutory rate for each agate space, the type actually used in setting the advertisements is larger than agate; (c) it imposes charges for space occupied by copy which is neither requested by the city nor required by the advertisement, and (d) it did not file with any officer of the City of Englewood any affidavit stating the average net paid circulation of the Press-Journal, or the rate to be charged for official advertisements, as required by N. J. S. A. 35:2 — 1.

The main issue posed on this appeal is the meaning of the term “agate (or 5y¡ point) line55 used in N. J. S. A. 35:2 — 1. Plaintiffs contend that the language means a line of print in agate or 5point type. Palisades construes the phrase differently: an “agate (or By point) line55 does not mean a line of agate type, but the space occupied by an agate line, to be measured vertically by an agate ruler. The trial judge agreed with the latter contention when he ruled in Palisades5 favor.

Definitions are in order. An agate ruler is a ruler divided into agate lines, containing 14 agate lines to an inch, and is commonly used by newspapers in measuring the vertical space occupied by display ads. A point is a measurement of linear space equal to l/72nd of an inch. Agate type, often referred to as 5J^-point type, is any style or design of type whose characters can be printed in a linear vertical space of By points; it has no relation to type width. (Although agate type is commonly referred to as Sy -point type, it should be noted that 14 lines of By-point type would total 77 points, and not the 72 points per inch occupied by 14 agate lines.) Nonpareil type (a descriptive used in some of the statutes about to be mentioned) or 6-point type, is any style or design of type whose characters can be printed in a linear vertical space of 6 points. An em is a measure of column width, defined as the square of any given type body— the larger the type, the larger the em. A slug is- a device in which characters are set, measured in points, the point of the slug determining the number of actual lines to an inch. There are, of course, many styles or designs of type.

Joseph H. Daniels, former president and director of Palisades, now deceased, testified on deposition that official advertisements in the Press-Journal were printed in 6-point type on a 6-point slug, since Palisades did not own any smaller type. The width of the lines of type has always been 10 ems or greater. In determining the fees to be charged for official advertising Palisades used an agate ruler to measure the number of agate lines in the advertisement, and then multiplied that number by 22 ¡í. To set off the official advertisement, Palisades inserted a line of type reading “Public Notice” at the top of each advertisement, with line dividers above and below, and also inserted ‘Tress-Journal” at the end. The Englewood City Clerk would send official advertisements to Palisades for publication in the Press-Journal. The instructions on the form supplied by the city dealt with such matters as when the notice should appear and the number of proofs of publication required.

The hearing on remand was concerned mainly with the presentation of exhibits and expert testimony.

Peter W. Jedrzejek, a typographer engaged in the sale of typography, testified for plaintiffs that some newspapers construed the statutory phrase “per agate (or 5point) line” to mean a line of 5%-point type, while others considered it as meaning the space occupied. In his judgment the statute required charges to be assessed on the number of actual lines of agate type.

Plaintiffs’ next witness was Gregory Hewlett, a New Jersey newspaperman who had been a director and president of the New Jersey Press Association. He stated that his newspaper printed official advertisements in 6-point type but counted the number of actual lines, as opposed to measuring by agate ruler, except in the case of a map or illustration, where the agate ruler was used (an exception also noted by Jedrzejek). Like the first witness he, too, conceded that there were variations throughout New Jersey in the manner of calculating charges, including the use of an agate ruler for measurement. With regard to the heading on official advertisements, Hewlett stated that the practice varied greatly, but he did not know whether newspapers which used the “Public Notice” heading charged for such inclusion. As to the insertion of the name of the newspaper at the end of the advertisement, he said his newspaper did so; it was an important factor in identifying the advertisement at a later date.

Plaintiffs’ final witness was Earle H. Dubois, the classified advertising manager of the Bergen Record. He testified that the Record printed official advertisements in 5^-point type on a 5-point slug, and that the charge made was by counting the number of lines. The agate ruler was used for measuring space occupied by illustrations and the like. Like the other two witnesses, he was aware of the many variations in charging for official advertisements.

Palisades presented as it first witness David M. Morton, an associate professor of graphic arts, who had done extensive work for weekly newspapers. He defined an “agate line” as a measure of space, one column wide and l/14th of an inch deep. It did not mean a line of agate type. In his view, the proper way to charge under N. J. S. A. 35:2-1 was to measure the number of agate lines with an agate ruler.

David L. Cangi, Palisades’ final expert witness and publisher of a number of small weekly newspapers in the Bergen-Hudson County area, testified that his newspapers published official advertisements in 6-point type and measured them with an agate ruler. As for the practice of inserting “Public Hotice” at the head of a particular advertisement, he said that some newspapers do so and charge for it, as did he on occasion. His newspapers also included and charged for the name of the newspaper inserted at the end of an official advertisement. It was Cangi’s opinion that the use of the agate ruler as a basis of charging for official advertisements complied with N. J. S. A. 35:2 — 1.

In the course of his oral opinion at the conclusion of the plenary hearing the trial judge made certain findings of fact, the definitive one, as noted, being that the statutory language meant that the charge for official advertising was to be based upon vertical space measured by an agate ruler.

Whatever the testimony of the expert witnesses, conflicting as it was, our task is to construe the statutory language. To this end a review of the statutes which found their ultimate reflection in N. J. S. A. 35 :2-1 is instructive.

I

Apparently the first general regulation of official advertising rates in New Jersey was L. 1857, c. 137, which provided that the rate for newspaper advertisements required by law “shall be forty cents per folio (one hundred words) for the first insertion and twenty cents per folio for each subsequent insertion after the first.” The rate was increased by L. 1863, c. 92, but the “per folio” manner of computation remained unchanged.

A parallel statute, L. 1891, c. 223, fixed a “per line” rate in the case of official advertising by a county or municipaltiy in daily newspapers published in cities of the first and second class, the rate being “ten cents per line for the first insertion and five cents per line for each subsequent insertion and no more * * *.” In Daly v. Ely, 53 N. J. Eq. 270 (Ch. 1895), the court held that the 1891 law created a limited permissive exception to the 1857 statute but did not repeal it.

A supplement to the 1857 act was effected by L. 1895, c. 344, which established a “per line” computation for counties of the first class; legal notices were to be charged for at the rate of “ten cents per line for the first insertion, and five cents a line for each subsequent insertion, and no more; provided, that in computing any such charge per line for said notice the line must average at least eight words.” The 1895 law was amended by L. 1898, c. 187, which introduced the term “agate line” by providing, with respect to first class counties, that the charge was to be “ten cents per agate line for the first insertion and five cents an agate line for each subsequent insertion, and no more.”

In 1909 the Legislature brought together, in revised form, the 1857 law and later statutes. L. 1909, c. 67, may be considered as the first direct antecedent of the present statutory language contained in N. J. S. A. 35 :2-1. It repealed all inconsistent acts. We reproduce the full text:

1. Hereafter the price to be paid for publishing all official advertising in the newspapers, published in cities of the first and second class, or in counties of the first or second class in this State, shall be at the rate of ten cents per agate (or 5Vs point) line for the first insertion, and eight cents per agate line for each subsequent insertion ; provided, that in computing such charge per line, the lines shall average at least seven words.
2. Hereafter ilic price to be paid for publishing official advertisements in any newspaper, except newspapers published in cities of the first or second class, or in counties of the first or second class, shall be at the rate of five cents per nonpareil (or 6 point) line for each insertion; provided, that in computing such charge per line, the lines shall average at least seven words.
3. In reckoning line charges allowances shall be made for date lines, paragraph endings, titles, signature, and similar short lines as full lines where the same are set to conform to the usual rules of composition.

L. 1919, c. 52, repealed section 2 of the 1909 act and amended section 1 to provide that

Hereafter the price to be paid for publication of official advertising in the newspapers published in this State shall be at the rate of ten cents per agate or nonpareil line for the first insertion, and eight cents per agate or nonpareil line for each subsequent insertion; provided, that in computing such charge per line the line shall average at least six words.

The 1920 Legislature reverted to classification of official advertising found in the 1909 law when it provided, in L. 1920, c. 6, that in the case of first and second class cities or counties the rate for official advertising was to be “(12) twelve cents per agate (or 5^4-pt.) line for the first insertion and (10) ten cents per agate line for each subsequent insertion; provided that in computing such charge per line, the line shall average at least six words.” As to all other newspapers, the rate was “(10) ten cents per agate or nonpareil (or 6-pt.) line for the first insertion and (8) eight cents per agate or nonpareil line for each subsequent insertion,” the line to average at least six words. Section 3 of the 1909 act, quoted above, was included as section 3 of the new act. L. 1920, c. 6 was incorporated in section 35 :2-1 of the 1937 Revised Statutes.

R. S. 35:2-1 was amended by L. 1944, c. 156, which read as follows:

a. In newspapers published in cities of the first and second classes, or in counties of the first, second, third and fifth classes, twelve cents ($0.12) per agate (or five and one-half point) line for the first insertion and ten cents ($0.10) per agate line for each subsequent insertion; * * * [higher rates were provided for newspapers in certain circulation categories of 20,000 or more copies daily or Sunday], but before any newspaper can charge the foregoing rates, the publisher or business manager of such daily or Sunday newspaper must file with the properly authorized officer of every municipality, county or governing body, placing official advertising in such newspaper, an affidavit setting forth the average net paid circulation of such newspaper for the twelve months’ period ending September thirtieth next preceding and the rate to be charged for official advertising, which in no case shall be in excess of the rates provided in the foregoing schedule.

As to all other newspapers, the charge was to be ten cents “per agate or nonpareil (or six point) line for the first insertion” and eight cents for each subsequent insertion. The 1944 statute also incorporated paragraph 3 of the 1909 and 1920 acts relating to short lines.

The statute was again amended by L. 1952, c. 250. It eliminated the classification by cities and counties contained in the 1944 act, making paragraph (a) of that act applicable to all newspapers. In addition, the 1952 statute substituted the following for the “short lines” paragraph of the 1944 act:

The charge per agate or nonpareil line shall be based on measurement by the standard newspaper ruler, but date lines, paragraph endings, titles, signatures and similar short lines shall be computed as full lines where set to conform to the usual rules of composition.

A further amendatory statute, L. 1955, c. 233, changed only the rates that might he charged by newspapers of different circulation volumes, retaining the last-quoted provision in the 1952 act basing the charge per agate or nonpareil line on “measurement by the standard newspaper ruler.”

Finally, L. 1962, c. 130, amended section 35 :2-l to read as it does at the moment of this writing. The 1962 act continued the scheme of the 1952 and 1955 amendments in providing a series of escalating rates based on average net paid circulation. It also continued the language of those amendments which fixed rates on the basis of “per agate (or 5 point) line.” It is of significance that this latest enactment deleted the last paragraph of the 1952 act which permitted lines to be measured by the “standard newspaper ruler,” substituting instead the following paragraph:

The charge per agate or 5% point line shall be based on measurement of a line of not less than 10 ems in width, but date lines, paragraph endings, titles, signatures and similar short lines or lines that require special emphasis, such as the title of the notice, shall be computed as full lines where set to conform to the usual rules of composition.

Extensive research by counsel and this court has failed to uncover any significant legislative history. There are no committee reports, and the Statements which accompanied only two of the bills enacted into law — 1920 and 1952 —• provide no help in construing N. J. S. A. 35:2-1. We are relegated to the language of the statutes summarized above.

II

The obvious function and purpose of the sequence of statutes has been to regulate and limit the charges which a newspaper may impose for official advertising. The Legislature, in moving from a rate “per folio (one hundred words)” in the 1857 act, initially fixed a maximum rate “per line,” and in subsequent years and other successive stages more specifically described the “line.” Thus, in 1898 the charge was “per agate line”; in 1909 “per agate (or 5^á point) line” and “per nonpareil (or 6 point) line.” The “per agate (or 5}^ point) line” as a basis for official advertisement charges has persisted down to and through the 1963 enactment. The clear legislative expression has been that the rate to be charged by newspapers for official advertising was to be by lines. Only once did the Legislature speak of a rate fixed by space, and that was in L. 1953, c. 350, when, in the last paragraph of the statute (quoted above) the charge per agate or nonpareil line was to be based on “measurement by the standard newspaper ruler.” This standard was maintained in the amendment effected by L. 1955, c. 333, but, as stated, was deleted by the 1963 enactment, now the applicable law.

The industry of plaintiffs’ counsel has brought to our attention the statutes of 39 sister states governing official advertising, noting that none fixes rates in a manner which permits a publisher to increase his charges by expanding the physical composition of an official advertisement through the use of larger type, setting type on larger slugs, spacing slugs apart, or by any other copy-expanding device. Although appreciative of this legal research, we are necessarily confined to construing our own statute, and particularly so when we find that in only two or three cases have the laws of other states been discussed by their courts.

The only New Jersey case dealing with the rate to be charged for official advertisements is Sheehey v. Mayor, etc., Hoboken, 62 N. J. L. 184 (Sup. Ct. 1898), decided under L. 1891, c. 223 which called for a “per line” computation of rate for official advertising by first and second class cities. The bills presented to the governing body by the local Hoboken newspapers were made out on the theory that a “line” under the act in question meant so much space in a column as would be occupied by a line of words, letters or figures printed in agate type. Since the advertisements were all printed in type larger than agate, the prices charged were higher than warranted. The court observed that the testimony tended to prove that it was customary among newspapers to charge for advertising according to the space occupied, and to indicate that space by the number of lines which might be printed in it with agate type. The newspapers insisted that such was the legislative intent expressed in the 1891 statute. The court said:

But wo cannot so interpret the law. The word “line” is not a technical term, but one in common use, and having in common usage, when applied to printed matter, a well-known signification. It then means a row of words, letters, or figures printed across a page or column, without regard to the size of the type. [62 N. J. L. at 185]

As we read the holding in Sheehey, it was that a “line” means an actual line and not the space that might bo occupied by a line of type. Subsequent amendments of the statute to include “per agate (or 5y2 point)” and “per agate or nonpareil (or 6 point)” line do not impair this common sense construction of the statute.

It is clear that if newspapers like the Press-Journal were permitted to charge for gross space, they could, by setting in a somewhat larger type or on a larger slug, enjoy increased advertising revenues at the expense of those placing the official advertisements. The practice of the Press-Journal provides a ready illustration. If the “line” count of the statute as we construe it were to be followed, an agate (or oj/2point) line would produce 14 lines to the inch. The newspaper uses 6-point type, which runs 12 lines to the inch. By measuring space with an agate ruler, rather than counting lines, the newspaper charged for two extra lines. The fact that Palisades had nothing smaller than 6-point type for use in the Press-Journal is no excuse; it could readily have obtained a smaller agate font.

If there is any question as to the legislative purpose, last expressed in the 1962 statute, that official advertising is to be charged at a rate per agate (or 5J^-point) line, it is set at rest by Assembly Bill No. 682, introduced by a Bergen County assemblyman — Englewood is in Bergen — on March 9, 1970 after the Law Division judge had delivered his oral opinion on Eebruary 26, 1970. The bill has passed both Houses of the Legislature and at the moment awaits the Governor’s signature. The proposed law would amend N. J. S. A. 35:2 — 1 (L. 1962, c. 130, § 1) by eliminating the parenthesis in the phrase "per agate (or 5point) line” and, further, the last paragraph of the statute, quoted early in this opinion. In place of the last paragraph, Assembly Bill No. 682 would provide:

Tie fee for publishing an official advertisement shall be computed by measuring the vertical space occupied by the official advertisement, inclusive of heading and fee lines, with an agate ruler and multiplying the resulting number of agate lines by the rate applicable for that newspaper’s circulation.
Each agate line so measured shall be not less than nine picas in width. Datelines, paragraph endings, headings, titles, signatures, fee lines and similar short line or lines, lines that require special emphasis and the blank spaces between the above lines shall be measured by agate line in the manner provided above, as part of the official advertisement in which such lines appear in the absence of any agreement to the contrary between newspaper and customer.

The Statement accompanying the bill represents that its proposals are intended, among other things, to

1. Create a uniform standard of measurement of column depth using the concept of “agate line” as measured with an agate ruler.
a. Eliminate any vestiges of measurements which are based on the mere counting of lines not using an agate ruler.

This is a clear reversion to the "measurement by the standard newspaper ruler” provision of L. 1952, c. 250, which was abandoned when L. 1962, c. 130, became effective. If signed into law, it will control rates to be charged thereafter. It cannot give comfort to Palisades, which has used the agate-rule method of measuring space and charged on that basis, instead of charging by the agate (or 5)4-point) line.

Ill

Palisades has charged for the printing of a “Public Notice” heading which it inserted with line dividers above and below, as well as for the “Press-Journal” insertion at the end of the official advertisement. The publisher admits that these insertions are made whether they are included in the copy submitted by the advertiser or not. In submitting official advertisements for publication in the Press-Journal, the city clerk did not include either the words “Public Notice” or the name of the paper in the copy sent to the newspaper on the city’s form. Nonetheless, Palisades made the insertions in accordance with its usual practice.

It may be, as Palisades contends, that including the words “Public Notice” at the head of the official advertisement serves to bring it to the public’s attention, and printing “Press-Journal” at the end of the advertisement serves a research purpose. But the statute does not require cither the heading or any mention of the newspaper’s name. The city did not request either insertion. It was not for Palisades to exercise its own judgment and determine what is useful or appropriate. Printing “Public Notice,” with line dividers above and below, and “Press Journal” after the advertisement, added four agate lines and resulted in an extra cost to the city of 88^, based upon the 22<zi rate. Englewood should not be called upon to pay this extra charge. Cf. Mandan News Publishing Co. v. Board of City Comm’rs, of Mandan, 49 N. D. 756, 193 N. W. 608 (Sup. Ct. 1923); Wisner v. Morrill Cty., 117 Neb. 324, 220 N. W. 280 (Sup. Ct. 1928).

IV

Plaintiffs contend that Palisades is not entitled to impose the statutory charges for publishing Englewood’s official advertisements because it did not file with the properly authorized municipal officer placing the official advertisements in the Press-Journal (in this case, apparently, the city clerk) an affidavit stating the average net paid circulation for the 12-month period ending the preceding September 30 and the rate to be charged for the official advertising, as required by N. J. S. A. 35 :2 — 1. Palisades conceded, and it was affirmatively established by the deposition of the city clerk, that it was not until after the present action was instituted that the publisher filed the required affidavit with the city. However, Palisades had submitted to the city clerk copy of the annual notice published as required by 39 U. S. C. A., § 4369, showing the average number of copies of each issue during the preceding 12 months. Although the annual statements so filed were not sworn to, nor set out the rate to be charged for official advertisements, we agree with the trial judge that no forfeiture should be visited upon Palisades. The fact is that the city did receive a statement of circulation each year, and since the rate, based on net paid circulation, was listed in the statute, the city would not have been further enlightened had it received the properly executed affidavits. The city benefited from the publication of the official advertisements. There is no showing that it was in any way prejudiced by Palisades’ failure to file the required affidavits.

"We reverse with the direction that a judgment accordant with this opinion be entered and a further hearing held to determine the amount of the overpayments made by Englewood to Palisades.
      'The bill was not signed.


author: Mintz, J. A. D.

text:
    VINCENT T. DeSENA, GUARDIAN AD LITEM OF ANTHONY DeSENA, AN INFANT, JOANNE DeSENA, AN INFANT AND ROSEANN DeSENA, AN INFANT AND VINCENT T. DeSENA, INDIVIDUALLY AND JOHN DeSENA, PLAINTIFFS-APPELLANTS, v. THE PRUDENTIAL INSURANCE COMPANY OF AMERICA, METROPOLITAN LIFE INSURANCE COMPANY AND VINCENT DeSENA, DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued October 5, 1971
    Decided November 30, 1971.

      Before Judges Goldmann, Collester and Mintz.

      Mr. Bobert B. Turk argued the cause for appellant (Messrs. Cohn & Turk, attorneys).

      Mr. Donald C. Butch argued the cause for respondent The Prudential Insurance Company of America (Messrs. Hiering, Grosso, Gelzer & Keldher, attorneys; Mr. Thomas F. Keldher, on the brief).

      Mr. John L. McGoldrick argued the cause for respondent Metropolitan Life Insurance Company (Messrs. McCarter & English, attorneys; Mr. Eugene M. Haring, of counsel).
   The opinion of the court was delivered by

Mintz, J. A. D.

Plaintiffs moved for summary judgment. Their motion was denied. The court dismissed the complaint and entered final judgment in favor of defendants. This appeal ensued.

Plaintiff, Yincent T. DeSena, as guardian ad litem of his younger brother and two sisters (all minors) and in his own right, sues together with his adult brother John seeking a judgment requiring defendants, The Prudential Insurance Company of America (Prudential) and Metropolitan Life Insurance Company (Metropolitan), to pay into court the proceeds of certain life insurance policies which should be made available for the support of their infant brother and sisters. Plaintiffs also allege that their father, defendant Yincent DeSena, and their late mother, Louise DeSena, jointly owned certain premises in Seaside Heights (presumably as tenants by the entirety). They ask fox a judicial sale of the premises, and that the proceeds from the sale be made available for the support of their infant brother and sisters.

At oral argument we were advised that after the institution of these proceedings, the mortgagee instituted a foreclosure action. At the sheriff’s sale conducted pursuant to the judgment in foreclosure, a surplus of approximately $4,800 was realized. The adult plaintiffs, waiving all rights they might have in the proceeds from the insurance policies and the surplus fund, request that the proceeds be used exclusively for the benefit of the infants.

This litigation has a tragic origin. Defendant Yincent DeSena, the father, on February 25, 1969 killed his wife Louise and the oldest daughter of the marriage, Julia, who was unmarried. At that time the infant Eoseann was about 16, Anthony was 10 and Joanne 3.

Louise’s life was insured by Metropolitan for $5,000, the designated beneficiary being her defendant husband. Julia’s life was insured by Prudential and since she died through accidental means, Prudential concedes the policy is worth $12,000. Julia’s father, Yincent, is the named beneficiary in said policy.

As was represented at the argument on the motion for summary judgment Yincent had a history of mental institutionalization, having been released from the mental hospital a few days prior to the killings. He disappeared after the homicides and his present whereabouts is unknown. Service was made upon him by publication and a default entered against him.

N. J. S. A. 3A:39-1 provides that when a person who has property in this state has absented himself for one year and his whereabouts is unknown, the Superior Court or the County Court of the county in which the person last resided may appoint one or more trustees to manage his property under the direction and control of the court, and the trustee may dispose of the property or any part thereof as the court may deem proper. The law generally presumes a continuation of life until seven years have elapsed since the person has last been heard from. Vreeland v. Freeland, 78 N. J. Eq. 256 (Ch. 1911); Tyll v. Keller, 94 N. J. Eq. 426 (E. & A. 1923); Keller v. Linsenmyer, 101 N. J. Eq. 664 (Ch. 1927); Moran v. Firemen’s, etc., Comm., 20 N. J. Misc. 479 (Cty. Cir. Ct. 1942). However, where the absence of the missing person is for less than seven years, upon proof of circumstances raising a counter presumption, his death may be found within the seven-year period. In re Bencel, 78 N. J. Super. 545 (App. Div. 1963). Absence for less than seven years cannot in itself be relied on as a factor in proving death. In re Zwiebel, 3 N. J. Super. 35 (App. Div. 1949). The Zwiebel court also held that where proof of death within the seven-year period is insufficient, “The Legislature, having in mind cases such as this, has made provision for the management and conservation of the absentee’s estate and for the needs of his dependents during the seven-year period. R. S. 3 :41-1 et seq. [now N. J. S. A. 3A :39 — 1].” Id. at 40; emphasis supplied. The absentee defendant, if alive, owes a duty of support to his infant children. Grotsky v. Grotsky, 58 N. J. 354, 356 (1971); Greenspan v. Slate, 12 N. J. 426 (1953).

Initially, Metropolitan challenges the power of this court to render a decision binding upon the absentee defendant, be he dead or alive. Eeliance is placed upon New York Life Ins. Co. v. Dunlevy, 241 U. S. 518, 36 S. Ct. 613, 60 L. Ed. 1140 (1916), where a life insurance company attempted to set up the result of an interpleader action as a defense to a later suit by one of the rival claimants who was notified but not personally served within the state where the interpleader took place. The Supreme Court held that there was no jurisdiction to bind the absent rival claimant to the result of the inter-pleader action and permitted his judgment against the insurer in a second suit to stand. However, as observed in United States v. Estate of Swan, 441 F. 2d 1082, 1086 (5 Cir. 1971), Dunlevy was concerned with the interpretation of Pennsylvania law and is inapposite to a federal statutory interpleader action. It is likewise inapplicable to our interpleader proceeding. The Swan court further stated that “To the extent that it [Dunlevy] turned on constitutional considerations of due process, we are satisfied it does not control this case.”

In any event, we conclude that N. J. S. A. 3A:39-1 is clearly applicable in the instant situation and would debar the absentee defendant from making any claims against the trustee appointed by the court who may have disbursed funds pursuant to the court’s order to the guardian of the infants for their support and maintenance.

The insurance companies assert the possibility that defendant Vincent DeSena may have been insane when he killed his wife and daughter, in which event he would be entitled, if alive, to all the proceeds in question. Campbell v. Ray, 102 N. J. Super. 235 (Ch. Div. 1968), aff’d o. b. 107 N. J. Super. 509 (App. Div. 1969). If in fact he is alive, the proceeds would be turned over to his trustee pursuant to N. J. S. A. 3A:39-1 for the support of his infant children. If he died intestate, the proceeds would likewise inure to the benefit of his infant children, his adult children having renounced their claim to inheritance. N. J. S. A. 3A:4-4.

There is, of course, the remote possibilty that defendant Vincent DeSena was insane when the homicides were committed and is now deceased, but prior thereto, and when sane, executed a valid will bequeathing and devising his estate to parties other than plaintiffs. In such event, his will would control the disposition of his estate. While this contingency is highly remote, a guardian ad litem should be appointed for the absentee defendant charged with a duty of making due inquiry of plaintiffs, other relatives of the absentee defendant and attorneys with whom he may have consulted, for information as to his whereabouts and whether there is an existing will. Testimony concerning such investigation should be presented at a plenary hearing. In the event the testimony fails to establish the death of the absentee defendant within the guidelines set forth in In re Zwiebel, supra, and In re Bencel, supra, the existence or non-existence of a will becomes irrelevant and N. J. S. A. 3A:39-1 would control the disposition of his estate.

The next possibility is that the absentee defendant was sane at the time of the slayings and is still alive. There is a continuing presumption of sanity, and if the contrary exists, it must be shown by the party who alleges it. State v. Hill, 65 N. J. L. 626 (E. & A. 1901); In re Heukelekian, 24 N. J. Super. 407 (App. Div. 1953). However, it is a maxim of the common law that no man can profit by his own wrongdoing. He becomes the constructive trustee of all the funds in question for the benefit of the heirs and next of kin of his deceased wife and daughter. In re Kalfus’ Estate v. Kalfus, 81 N. J. Super. 435 (Ch. Div. 1963). Under the statute of descent and distribution, N. J. S. A. 3A:4 — 4, the infant plaintiffs would inherit all the funds provided the wife and daughter died intestate. Such intestacies may be established at a plenary hearing in the same manner earlier outlined respecting the intestacy of the absentee defendant. Of course, if either the wife or daughter died testate, their will or wills control the disposition of their respective interests in the funds.

In order to protect the interests of the heirs, devisees and personal representatives of defendant Vincent DeSena, Louise DeSena and Julia DeSena, respectively, under a possibly existing valid will, we suggest that plaintiffs join such parties as defendants. R. 4:26-5(b) (3).

As already observed, the possibility of exposure of the insurance companies to double or multiple liability is indeed highly remote, nevertheless, they are entitled to be protected against such exposure. Under the stated circumstances, we direct Prudential and Metropolitan to amend their respective pleadings so as to obtain interpleader by way of cross-claims and counterclaims and to deposit the proceeds presently due under said policies with the court. Such proceeds, as well as the surplus funds realized upon the sheriff’s sale, will constitute a specific res within the control of the court and present a classic interpleader action. B. 4:31. All the plaintiffs reside in this State, the two insurance companies are here, and all the funds will be within the jurisdiction of the court. Upon depositing the proceeds due under the respective policies of insurance, defendant corporations will be absolved from any and all liability. Cf. Union Trust, etc., Bank v. Kyle, 96 N. J. Eq. 125, 128 (Ch. 1924); Georgia Savings Bank and Trust Company v. Sims, 321 F. Supp. 307, 308 (N. D. Ga. 1971). The rationale of National Bank of New Jersey v. White, 93 N. J. Eq. 109 (Ch. 1921), is inapposite in view of the liberality of service permitted by our long-arm rules. R. 4:4-4 and 5.

Service of the counterclaim may readily be effected upon plaintiffs. If the judgment sought will affect the interests of particular persons in designated property, the action is quasi in rem. Hanson v. Denckla, 357 U. S. 235, 78 S. Ct. 1228, 2 L. Ed. 2d 1283, 1293 n. 12 (1957). Accordingly, this is a quasi in rem proceeding and service of the cross-claims upon the absentee defendant by publication is expressly provided for under R. 4:4-5 and satisfies the requirements of “due process of law.” Cf. Avdel Corporation v. Mecure, 58 N. J. 264, 268 (1971).

We note that Metropolitan in its brief asserts that should this court reverse, the proceeding should be remanded for trial on the allegation that on the date of death its policy had lapsed for non-payment of premiums as generally alleged in its answer, denying plaintiffs’ claim that the policy was in full force and effect. We agree. We note, however, that on plaintiffs’ motion for summary judgment, Metropolitan in opposition thereto did not advance this contention.

Unless the DeSena infants obtain the funds in question, they necessarily will be required to seek welfare relief, which their adult brothers (who are in their early 20’s) pridefully have been straining to avoid. In equity and good conscience we deem a remand essential to explore the possibilities previously discussed.

Reversed and remanded for further proceedings consistent with this opinion.


author: Labbecque, J. A. D.

text:
    IN THE MATTER OF THE ORGANIZATION OF THE ATLANTIC COUNTY BOARD OF ELECTIONS.
    Superior Court of New Jersey Appellate Division
    Argued November 3, 1971

    Decided December 2, 1971.

      Before Judges Kilkenny, Labkecqtje and Laye.

      Mr. Morgan E. Thomas argued the cause for appellant Dolores I. Mooney.

      Mr. John F. Callinan argued the cause for respondent William T. Dunbar (Messrs. Pershie & Pershie, attorneys).

      Mr. Alfred L. Nardelli, Deputy Attorney General, argued the cause for respondent William T. Cahill, Governor of New Jersey (Mr. George F. Kugler, Jr., Attorney General of New Jersey, attorney; Mr. Stephen Shillman, Assistant Attorney General, of counsel; Mr. Nardelli, on the brief).
   The opinion of the court was delivered by

Labbecque, J. A. D.

By the present appeal the parties seek a determination as to who is entitled to the position of Democratic member of the Atlantic County Board of Elections (the Board) for the two-year term beginning March 1, 1971.

The present action was originally instituted by John L. Toy, Jr. (Toy), the remaining Democratic member of the Board, against the two Republican members of the Board, William M. Snyder and Ryerson Mausert. Later, the complaint was amended to add Dolores I. Mooney (Mrs. Mooney), as a party plaintiff, and Governor Cahill as a party defendant. The amended complaint in lieu of prerogative writs charged that Mrs. Mooney was the lawfully nominated Democratic member of the Board; that she should have been so commissioned by the Governor, and that the organizational meeting of the Board held on March 9, 1971 without her participation was improper and illegal. Subsequently William T. Dunbar (Dunbar), the other claimant to the position, was permitted to intervene.

Thereafter there was a motion by plaintiffs and a cross-motion by Dunbar for summary judgment, based upon affidavits by the parties. Later, in response to the court’s direction that oral testimony be produced, both plaintiffs testified.' Dunbar did not testify but elected to rely on his prior affidavits. In its amended final judgment the court held that Dunbar was the valid nominee and that the Board’s organizational meeting of March 9, 1971 was valid and proper. Mooney thereupon filed the present appeal.

Each county election board consists of four persons. N. J. S. A. 19:6-17 provides, in pertinent part:

Two members of such county board shall be members of the political party which at the last preceding general election, held for the election of all of the members of the General Assembly, cast the largest number of votes in this State for members of the General Assembly, and the remaining 2 members of such board shall be members of the political party which at such election cast the next largest number of votes in the State for members of the General Assembly.

The method of nomination and appointment of members of a county board is set out in N. J. S. A. 19 :6-18 as follows:

During the 30 day period immediately preceding February 15 in each year, the chairman and vice-chairlady of each county committee, and the State committeeman and State committeewomen [sic] of each of such 2 political parties, respectively shall meet and jointly, in writing, nominate one person residing in the county of such county committee chairman, duly qualified, for member of the county board in and for such county. If nomination be so made, the said county committee chairman shall certify the nomination so made to the State chairman and to the Governor, and the Governor shall commission such appointees, who shall be members of opposite parties, on or before March 1. If nomination be not so made on account of a tie vote in the said meeting of the county committee chairman, county committee vice-chairlady, State committeeman and State committeewoman, in respect to such nomination, the said county committee chairman shall certify the fact of such a tie vote to the State chairman, who shall have the deciding vote and who shall certify, in writing, to the Governor, the nomination made by his deciding vote. Appointees to county boards of election pursuant to this section shall continue in office for 2 years from March 1 next after their appointment.

Members of the state committee are elected at the primary for the general election of the year in which a Governor is elected. N. J. S. A. 19 :5-4. On January 1, 1971 the duly elected members of the Democratic State Committee for Atlantic County were David Diehter (Dichter) and Mary E. Haynie (Mrs. Haynie). The chairman and vice-chairlady of the Atlantic County Democratic Committee are elected annually at the organization meeting of the committee following the primary election. In January 1971 Dunbar was the Democratic county chairman and the vice-chairlady was Bertha Brown (Mrs. Brown).

The facts in the context of which the present controversy must be resolved are brief. On January 27, 1971 Dunbar addressed a letter to Mrs. Haynie advising her of a meeting to be held on Tuesday evening at 8 p.m. (without specifying the date) "to nominate a person for the County Election Board.” Upon receipt of the notice on the following day, Mrs. Haynie phoned Dunbar and, after ascertaining that the Tuesday referred to in the notice was February’’ 2, 1971, protested that the notice was too short to permit the attendance of Dichter, the state committeeman, who was then out of the country working on an International Aid project. Dunbar allegedly refused to change the meeting date.

A similar notice of the meeting had been mailed to Dichter at his usual residence in Atlantic City, although there is evidence that Dunbar knew at the time that he was out of the country. No contention is made that the notice could have been received by Dichter in time to attend the called meeting, and Dunbar made use of no other form of notice.

Through the efforts of Mrs. Haynie and other friends, Dichter was finally located in Switzerland and advised, on the night of January 30, of the date and purpose of the meeting. Since it was too late for him to make arrangements to attend, he, on January 31, 1971, forwarded a cablegram addressed to Mrs. Haynie directing her to cast his vote for Mrs. Mooney for appointment to the County Election Board. He confirmed this by a follow-up letter dated February 3 in which he stated, “I would like to take this opportunity to cast a proxy vote in favor of Mrs. Lori Mooney for the Election Board appointment. I regret the delay in getting my proxy vote to you. I was under the impression that this could be done by telegram, which I believe you have already received.”

On February 2, 1971 Dunbar, Mrs. Brown and Mrs. Haynie met. Dunbar nominated himself for membership on the County Board of Elections and Mrs. Haynie nominated Mrs. Mooney. Thereupon Dunbar voted for himself as did Mrs. Brown. Mrs. Haynie voted for Mrs. Mooney and also offered the cablegram vote of Dichter for her. Dunbar rejected Dichter’s vote and prepared a certificate reciting that he, Mrs. Brown and Mrs. Haynie had attended the meeting, and that “all of said persons present jointly, in writing” had nominated him for the office. However, the certificate carried a notation that Mrs. Haynie “did not vote” and that Dichter, the Democratic state committeeman, was “living in Switzerland.”

In actuality, Dichter, whose permanent and voting address was in Atlantic City, was employed by the International Secretariat for Volunteer Services (U.N.) and was temporarily residing in Switzerland. According to his affidavit filed in the cause, had he received timely notice of the February 2 meeting, he would have made arrangements to return to Atlantic City.

On February 16, 1971 Salvatore A. Bontempo, chairman of the Democratic State Committee, certified by letter to Governor Cahill that he had concluded that Mrs. Haynie and Dichter had voted for Mrs. Mooney; that this had resulted in a tie, and that he was exercising his prerogative to break the tie in favor of Mrs. Mooney. Although the last date for certifying nominations to the Governor was February 15, 1971, the fact that February 15, 1971 was a legal holiday (Washington’s Birthday) made his letter timely.

Three days thereafter, on February 19, 1971, Dunbar transmitted to the Governor a “duplicate original” of his prior certification that he had been nominated (apparently the original had been sent only to the chairman of the Democratic State Committee). The Governor, after consultation with his counsel, elected not to issue a commission to either contestant.

On March 9, 1971 the two Bepublican members of the County Board of Elections convened a meeting of the Board to “organize by electing one of their number to be chairman and one to be secretary * * N. J. S. A. 19 :6-22. Plaintiff Toy, the only commissioned Democratic member, appeared at the meeting and moved for a postponement so that the Board could organize with its full complement of two Bepublican and two Democratic members, as required by statute. The motion was rejected by the vote of Snyder and Mausert. Toy thereupon left the meeting room and Snyder and Mausert proceeded to organize the Board alone. They elected Toy, in absentia,, as chairman and Mausert as secretary. The latter position is generally the preferred one, being higher paid, and involving more concern with the day-to-day activities of the Board. N. J. S. A. 19:45-7.

The trial judge held, and we agree, that Dichter was not easting a proxy vote, but was casting a form of absentee ballot by means of the cablegram addressed to Mrs. Haynie. However, he held that the statute required all of the parties to "meet” and make the nomination, and that this precluded acceptance of Dichter’s vote. He noted that had the requirement that the four named persons meet been directory rather than mandatory "the essence would be the vote rather than the means by which the vote arrived.” He concluded that the nominating meeting was valid notwithstanding the absence of Dichter; that Dunbar had received the nomination by a majority of those present and, without regard to certain inaccuracies in the certificate, was entitled to the position.

Mrs. Mooney challenges the judgment upholding the designation of Dunbar on the following grounds:

1. The Dichter cablegram vote is valid and resulted in a tie vote for the nomination.
2. Dunbar is barred, on principles of equity, and by lack of qualification, from taking the position of Election Board member.
3. The Governor must honor the certification from the chairman of the Democratic State Committee.

The rule is well settled that the election laws are to be liberally construed to effectuate their purpose. Deamer v. Jones, 42 N. J. 516, 521 (1964); Kilmurray v. Gilfert, 10 N. J. 435, 440 (1952); Carson v. Kalisch, 89 N. J. L. 458, 465 (Sup. Ct. 1916), aff’d Carson v. Scully, 90 N. J. L. 295 (E. & A. 1917). They should not be so construed as to deprive voters of their franchise or render an election void for technical reasons. Kilmurray v. Gilfert, supra, 10 N. J. at 440; Sharrock v. Keansburg, 15 N. J. Super. 11, 19-20 (App. Div. 1951). To accomplish this result our courts have not hesitated to remove formal roadblocks to free and untrammeled participation in the electoral process.

In Wene v. Meyner, 13 N. J. 185, 191 (1953), which involved the 1953 Democratic gubernatorial primary, several thousand voters had been permitted to vote without having filed a formal written declaration of their desire to take part in the Democratic primary. The statute, R. S. 19:23-45, as then amended, provided, in pertinent part, that a voter “who [had] not voted in a primary election of a political party for two subsequent annual primary elections” should not be permitted to vote in any primary election of a political party until he had “first signed and filed with the district board a declaration designating the political party in whose primary election he [desired] to vote.” In disposing of this formal challenge to the election Justice Heher held:

It would be a forced interpretation, at variance with the essential quality and meaning of the provision, to hold that even though the individual voter had, by the unimpeachable record, the undoubted right to take part in the primary of the particular party, the vote cast becomes void for failure of the election board to demand a formal written declaration of the voter’s “desire” to take part in the primary of that party, and is to be charged against the successful candidate in the final count, even though the candidate for whom it was cast be unknown. A primary, after all, is a medium for expressing the preferences of those united under the party standard; and, while protective legislative measures are to be enforced according to their spirit, a construction that would nullify votes cast by qualified primary electors is to be avoided unless that purpose be expressed in clear and unambiguous terms. It would be a harsh and oppressive construction that would reject the votes cast here by electors of undoubted qualifications for want of a formal written declaration by the voter of his “desire” to participate in the Democratic primary, even though that desire was unequivocally expressed by the action of voting itself. [Wene v. Meyner, supra, at 193 — 94]

More recently, in In re Smith, 59 N. J. 236, 237 (1971), the Supreme Court, contrary to the requirements of N. J. S. A. 19:13-7 that the signatures on nominating petitions be supported by affidavits of “five” of the signers that they “saw all the signatures made thereto,” held that such requirement served no public purpose and that the legitimate statutory objective could be met by a single verification. See also Filippone v. O’Connor, 116 N. J. Super. 399 (Law Div. 1971); In re Smock, 5 N. J. Super. 495, 501 (Law Div. 1949).

We are here concerned with a direct confrontation between form and substance. Posed in the words of the court below the issue is whether the “essence” of the legislative intent is the “vote” of the man designated by law to cast it or the “means by which the vote arrived.” We are convinced that the provision for a meeting was directory rather than mandatory and that the legislative intention was primarily directed to securing the nomination of members of county election boards by the votes of the persons on whom that duty was cast by law. The means of arriving at that vote were secondary to this primary legislative objective.

By virtue of N. J. S. A. 19:6-18 the state committeeman, the state committeewoman, the county chairman and the county vice-chairlady of the two principal political parties are designated as an ad hoc committee for the single purpose of nominating a member of the county election board representing their party. The committee has no formal or organizational structure. There is no provision in the statute for any specific date or place of meeting, and no provision for written notice thereof. The committee is not a deliberative assembly in its true sense, but partakes more of the characteristics of an election board, sitting for the purpose of receiving the votes of its members on a single issue. It differs in many respects from the county committee, which is composed of duly elected members from each election district in the county and meets for the purpose of organizing, and, thereafter, determining party policy and directing party activity.

N. J. S. A. 19:6-18 does not prescribe who shall call or serve the notice of the meeting, but since the county chairman did so here, and his right to do so is not challenged, we need not pass upon the point. Quaere as to what would be the result if the county chairman had called for a meeting at a certain time and place and the remaining three members of a nominating group, electing to meet at another time and place, had there determined upon a nominee without the assent of the county chairman.

It was clearly the essence of the legislative scheme that each political party, through the holders of the four offices mentioned, should submit to the Governor the party’s nomination for membership on the county board of elections, and that the Governor should commission whomever the party should thus select. Should they be unable to agree upon a nominee by a majority vote, the Governor could not appoint his own candidate but the chairman of the State Committee (who under the prior law had also been a member of the nominating committee) was to break the tie and certify to the Governor the winning nominee. Only in the event no action was taken within the statutory time could the Governor commission his own choice. N. J. S. A. 19:6-20.

Here Dichter was not acting from personal motives but was fulfilling a duty laid upon him by the law which provided for his election and prescribed his duties. The essence of his duty here was the casting of his vote for his nominee to the County Election Board. Ordinarily, the vote called for would be taken at a meeting of the four persons named. The validity of the result arrived at a meeting called for that purpose was dependent upon each of the nominators being afforded the opportunity of performing his or her statutory duty. Since the meeting here was called for a time when Dichter could not have reasonably been expected to attend, either his cablegram vote should have been counted or he should have been notified that it was rejected and afforded an opportunity to cast his vote at an adjourned meeting of the committee. Since the latter course was not followed, his cablegram vote for Mrs. Mooney should have been counted.

Since Dunbar claims receipt of but two votes at the meeting and it is conceded that Mrs. Haynie voted for Mrs. Mooney, the addition of Dichter’s vote created a tie which was properly resolved in favor of Mrs. Mooney by State Democratic Chairman Bontempo’s certification of February 16, 1971 to Governor Cahill. It follows that Mrs. Mooney was and is the duly nominated candidate for Democratic member of the Atlantic County Board of Elections, and as such is entitled to be commissioned as a member of that Board for the term fixed by law.

N. J. S. A. 19:6-19, which provides for the fiUing of vacancies on a county board of elections for any cause other than expiration of term, omits the provision that the nominators “meet” and requires only that they “shall jointly nominate a successor * * is consistent with the result reached by us.

By reason of the foregoing we find it unnecessary to consider the remaining points advanced by appellant referable to the February 2, 1971 meeting.

We have considered plaintiffs' challenge to the validity of the March 9, 1971 organization meeting of the County Board of Elections and cannot say that the refusal to adjourn the meeting until the open Democratic position had been filled was arbitrary or unreasonable. The statute, N. J. S. A. 19 :6-22, required that the Board organize annually on the second Tuesday in March unless the Board agreed otherwise. The position of secretary was one which could not long be left unfilled. There was no reasonable prospect of the impasse being quickly resolved — as was confirmed by subsequent events. The Board was not precluded from functioning by the failure to appoint a fourth member.

The Board met with a quorum consisting of Toy and the two Republican members. Toy was a member- of a public body charged with the performance of statutory duties, and could not, by walking out of the duly convened meeting of the Board, prevent it from thereafter functioning.

By reason of the foregoing the judgment of the Law Division is reversed and the matter remanded for further proceedings in accordance with this opinion.