text:
    EVALINE B. RAY CAMPBELL, PLAINTIFF-RESPONDENT CROSS-APPELLANT, v. GLADYS A. RAY, INDIVIDUALLY AND AS ADMINISTRATRIX OF THE ESTATE OF BURT R. RAY, DECEASED, DEFENDANT-APPELLANT CROSS-RESPONDENT.
    Superior Court of New Jersey-Appellate Division
    Argued November 24, 1969
    Decided December 4, 1969
    Before Judges Sullivan, Carton and Haleern.

      Mr. Murray Greiman argued the cause for defendant-appellant (Messrs. Lift and and Greiman, attorneys).

      Mr. Jesse Mosho-wiiz argued the cause for plaintiff-respondent.
   Per Curiam.

Both parties appeal from portions of the judgment entered in the above cause.

We have considered the entire record and are in substantial accord with the conclusions reached by Judge Matthews as set forth in his opinion reported in 102 N. J. Super. 235 (Ch. 1968).

Affirmed. No costs.


source: Caselaw Access Project

author: Pee Curiam.

license: Public Domain

text:
    WILLIAM KUBECK, PLAINTIFF-RESPONDENT, v. CONCORD INSURANCE COMPANY, A CORPORATION, DEFENDANT-APPELLANT AND FLAHERTY, SHEEDY & RYAN, INC., A CORPORATION OF THE STATE OF NEW JERSEY; THOMAS M. FLAHERTY, JOHN J. SHEEDY AND JOHN P. RYAN, DEFENDANTS-RESPONDENTS, AND ESTATE OF JOHN C. PERS, ROBERT RADUMSKY, MICHAEL ZVINAKIS, AGNES REA, MICHAEL E. COBB, COUNTY OF HUDSON, AND/OR PUBLIC SERVICE ELECTRIC & GAS COMPANY, PROPER, NECESSARY OR INDISPENSABLE PARTIES TO THIS SUIT-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued November 24, 1969
    Decided December 8, 1969.
    Before Judges Sulutyan, Carton and Halpern.

      Mr. John P. Doran argued the cause for appellant (Mr. James F. McGovern, Jr., attorney).

      Mr. Leon Miroff argued the cause for respondent (Mr. Hyman Tobin, on the brief).

      Mr. Allan Maitlin argued the cause for respondents (Messrs. Feuerslein, Sach & Maillin, attorneys).
   Pee Curiam.

Concord Insurance Company appeals from a judgment of the Superior Court, Chancery Division, adjudicating that its purported cancellation of a liability policy issued to plaintiff was void and unenforceable and further declaring that the policy in question was in full force and effeet on February 27, 1967, the date on which plaintiff was involved in a motor vehicle accident.

We have reviewed the voluminous record and conclude that the judgment should be affirmed substantially for the reasons given by the trial judge in his opinion which is reported at 103 N. J. Super. 525.

Affirmed.


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

text:
    WILFRED TANTUM, JR., PLAINTIFF-APPELLANT, v. WILLIAM E. HURLEY, ET AL., DEFENDANTS-RESPONDENTS. CHARLESETTA HOPKINS, ET AL., PLAINTIFFS-APPELLANTS, v. WILLIAM E. HURLEY, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued November 3, 1969
    Decided November 25, 1969.

      Before Judges Sullivan, Carton and Halpeun.

      Mr. J ohn 0. Givens argued the cause for appellant Tantum (Messrs. Parsons, Oanzona, Blair & Warren, attorneys).

      Mr. Samuel S. Sagotslcy argued the cause for appellants Hoplrins.

      Mr. William 0. Barnes, Jr., argued the cause for respondent.
   The opinion of the court was delivered by

Sullivan, P. J. A. D.

This appeal, involving the Unsatisfied Claim and Judgment Fund Law, is from an order of the trial court denying plaintiffs’ application to have their judgments against a driver of an uninsured motor vehicle paid out of the Fund. The ruling was bottomed on the trial court’s determination that none of the plaintiffs was a “qualified person” under the Fund Law.

The undisputed facts of the case are as follows. On April 14, 1965 plaintiff Wilfred Tantum, Jr. was the owner of a motor vehicle in which he was riding as a passenger and which was being driven by the plaintiff Charlesetta Hopkins. Her son John Hopkins was also a passenger in the automobile. On that date the automobile was involved in a collision with an uninsured vehicle owned and operated by defendant William E. Hurley.

The Tantum automobile was covered by a liability insurance policy issued by Concord Insurance Company on the basis of which Tantum had registered his automobile with the Motor Vehicle Department of the State of New Jersey as an insured motor vehicle.

Tantum’s policy contained a provision that the carrier obligated itself to pay “to persons other than an insured” damages, etc. The policy specifically excluded from its coverage “bodily injury to any named insured or the spouse, parent, son or daughter of the insured while an occupant in the insured automobile.” However, the policy also provided as follows:

When this policy is certified as proof of financial responsibility for the future under the provisions of the motor vehicle financial responsibility law of any state or province, such insurance as is afforded by this policy for bodily injury liability or for property damage liability shall comply with the provisions of such law which shall be applicable with respect to any such liability arising out of the ownership, maintenance or use of the automobile during the policy period, to the extent of the coverage and limits of liability required by such law. * * *

Eollowing the accident Hurley sued Tantum, which suit was defended and ultimately settled by Tantum’s liability carrier, Concord Insurance Company.

Tantum filed a suit against Hurley for his damages arising out of the accident and Charlesetta Hopkins and John Hopkins filed a separate suit against Hurley for their damages.- Their two suits were consolidated and tried before a jury which returned a verdict in favor of Tantum for $10,000, a verdict in favor of Charlesetta Hopkins for $7,500, and a verdict in favor of John Hopkins for $200. Judgments were entered accordingly.

Applications were then filed by Tantum and 'the Hopkins, pursuant to N. J. S. A. 39 :6—70, for payment of their judgments by the Eund. The applications set forth that plaintiffs were qualified persons who met all of the statutory requirements. Objection was made by the Fund on the ground that plaintiffs did not qualify because of N. J. 8. A. 39:6-70(d), which provides that an applicant seeking payment of his judgment from the Fund shall be required to show that “he was not at the time of the accident, operating or riding in an uninsured motor vehicle owned by him or his spouse, parent or child * * N. J. 8. A. 39:6-62 defines an uninsured motor vehicle as one “as to which there is not in force a liability policy meeting the requirements of * * * the Motor Vehicle Security-Responsibility Law of this State.”

The Fund’s position is that a policy “meeting the requirements of * * * the Motor Vehicle Security-Responsibility Law” must provide coverage to any injured person. N. J. 8. A. 39:6-46(a). Since Tantum’s liability policy contains an exclusion of coverage for bodily injuries to Tantum or his spouse, parent, son or daughter, the Fund argued that the Tantum automobile was uninsured within the meaning of the Fund Law and Tantum was not entitled to payment out of the Fund. As to the Hopkins, the Fund argued that they had not affirmatively shown that they were not related to Tantum and therefore had failed to establish their right to payment out of the Fund. The trial court upheld the Fund’s contention and denied plaintiffs’ applications.

We conclude that plaintiffs were qualified applicants and that orders for payment out of the Fund should have been entered.

Assuming the Tantum liability policy as executed did not fully comply with the requirements of N. J. 8. A. 39 :6-46, the policy provided that if it was certified as proof of financial responsibility under the motor vehicle financial responsibility law of any state, it would afford such coverage as was called for by such law. Since the policy issued to Tantum was issued and delivered as proof of Tantum’s financial responsibility under New Jersey law, it must be held to provide the coverage required by N. J. 8. A. 39 :6~46.

In addition to the foregoing, the Tantum automobile would be insured within the meaning of the Fund Law by virtue of Selected Risks Ins. Co. v. Zullo, 48 N. J. 362 (1966). In that ease it was held that where a motorist presents a policy of insurance to the Director of Motor Vehicles in' order to obtain the advantages of registering an insured motor vehicle, he is offering proof of financial responsibility, as those words are used in N. J. S. A. 39 :6-46, 48, and that a policy which purports to have more restrictive coverage is automatically amended to conform to the statutory standard. It is not disputed that the Tantum policy was issued by Concord and used by Tantum as proof that his motor vehicle was insured within the requirements of the New Jersey statute. Therefore, under the holding in Zullo any coverage required by the statute would be automatically included in the policy.

In view of this decision it is not necessary for us to review the basis on which the trial court held that the Hopkins were not qualified persons. However, even if the Tantum vehicle were held to be uninsured, the Hopkins would not be disqualified by virtue of this fact since it affirmatively appears that neither of them is the spouse, parent, son or daughter of Tantum. Indeed, the Fund conceded as much at oral argument.

The order herein is vacated and the matter remanded with direction to enter an order for payment of plaintiffs’ judgments out of the Fund.


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

text:
    ALFRED VAIL MUTUAL ASSOCIATION AND THE TOWNSHIP OF SHREWSBURY, PLAINTIFFS-APPELLANTS, v. SPEAKER OF HOUSE, ROBERT HALPIN; PRESIDENT OF SENATE, SIDO RIDOLFI; BOROUGH OF NEW SHREWSBURY; MAYOR, JACK LEMON; TINTON FALLS REGIONAL ELEMENTARY SCHOOL BOARD OF EDUCATION; AND JOHN THOMPSON, PRESIDENT, DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division.
    Argued September 29, 1969
    Decided December 2, 1969.

      Before Judges Coneobd, Collestek and Kolovskt.

      Mr. William Himelman argued the cause for plaintiffs (Messrs. Klatsky, Himelman ■& Siegfried, attorneys).

      Mr. Martin M. Barger argued the cause for defendant Borough of New Shrewsbury (Messrs. Reussille, Cornwell,

      Mausner & Oarotenuto, attorneys); Mr. Richard J. Porter joined in the brief for defendant Tinton Palls Regional Elementary School Board of Education (Messrs. Beehman & Porter, attorneys).
   The opinion of the court was delivered by

Contobd, P. J. A. D.

Plaintiffs attack the validity of the apportionment of expenses for regional school costs as between the Township of Shrewsbury and the Borough of New Shrewsbury, resulting from the adoption of L. 1965, c. 175 (N. J. S. A. 18:8-17.2).

The cited statute is attacked as unconstitutional and its effect impugned as invalid on various grounds. The gravamen of the grievance asserted is that whereas previously the named municipalities shared costs of annual or special appropriations of the regional school district, which they constitute together, on the basis of the respective proportions of assessed valuations for taxation, the 1965 enactment changed that basis to the proportions of children enrolled in the schools.

The Law Division held against plaintiffs, and they appeal.

Shrewsbury and New Shrewsbury comprise a regional elementary school district denominated Tinton Pails Regional Elementary School District. This district and the Borough of Eatontown School District constitute together a regional high school district called Monmouth Regional High School District. Involved in the litigation is the division of elementary school costs for the Tinton Palls district and for the share of the expenses for the high school district as between Shrewsbury and New Shrewsbury. Eatontown is not affected.

I. Background

An understanding of this controversy requires outlines of the history both of the school districts affected and of the applicable legislation. The former is largely based upon the contents of a supplemental brief supplied by defendants insofar as not controverted by plaintiffs.

A. As to the Governmental Entities

Prior to 1950 the Township of Shrewsbury comprised both of what now are known as the Township of Shrewsbury and the Borough of New Shrewsbury. Pursuant to L. 1950, c. 133, and a referendum of the voters in the area designated thereby, the Borough of New Shrewsbury (New Shrewsbury, hereinafter) was carved out of the former township, and the remnant continued as the Township of Shrewsbury (Shrews-bury, hereinafter). New Shrewsbury is substantially the larger in population and area. These municipalities continued, however, as a single school district. Costs of the school district were apportionable to the constituent municipalities on the basis of assessed valuations.

We are told that the population of Shrewsbury after the severance consisted mainly of the residents of a housing development on property of the United States Government built about 1941, known as Alfred Vail Homes, and of another smaller housing development constructed later known as Crawford Street Apartments. The Vail Homes being on tax-exempt property owned by the Federal Government, certain moneys were paid in lieu of taxes by the Government to the Shrewsbury Township School District on a per-pupil basis. The United States sold the Vail Homes in 1957 to plaintiff Alfred Vail Mutual Association, a corporation, and as a result federal school aid was discontinued July 1,, 1958. The Crawford Street Apartments were sold to the township. (We are hot told who now owns them.) The aggregate assessed valuations of Shrewsbury apparently now consist solely, or substantially so, of the two housing developments mentioned. New Shrewsbury’s assessed valuations consist primarily of individual residences.

In 1957 New Shrewsbury attempted, pursuant to N. J. 8. A. 18:5—1.1 ei seq., to split the Shrewsbury Township School District, apparently because of the prospective loss of federal tax aid in relation to the Vail Homes, but failed because of a veto by the statutory board of review based upon the ground that Shrewsbury was too small to maintain a school district.

On November 27, 1957 the voters of the Eatontown and Shrewsbury School Districts passed a referendum authorized by those bodies to create a regional high school district. The terms of the referendum (jailed for apportioning annual costs thereof, as between the two said districts, on a perpupii basis (average daily enrollment). However, as between Shrewsbury and New Shrewsbury, the high school regional costs were to be divided on the basis of assessed valuations.

In 1962 the board of education of the Shrewsbury School District submitted to the voters of the constituent municipalities a referendum to regionalize the district, and this was passed in both municipalities. The purpose was to qualify for larger state aid. The regionalization proposal, as submitted to the voters, called for apportionment of costs on the basis of assessed valuations, the statute affording an option as between that basis and average daily enrollment. N. J. 8. A. 18:8—1. As indicated above, the regional district thus created is now denominated Tinton Palis Regional Elementary School District. It clearly appears that the ratio of enrolled pupils to assessed valuations is substantially lower in New Shrewsbury than in Shrews-bury.

B. As to Apportionment Legislation

Prior to 1953 apportionment of the expense of annual or special appropriations in regional school districts among constitutent municipalities was solely on the basis of assessed valuations (“ratables”). B. 8. 18:8-17. Under L. 1953, c. 90, B. S. 18:8—1, dealing with the creation of regional school districts, was amended to provide that the constituent boards of education involved should not only-initiate the referendum for the establishment of a regional district but also determine whether amounts to be raised for the aforestated purposes should be “apportioned upon the basis of ratables or average daily attendance.” Thus the issue presented to the voters at any referendum included both the question of adoption of the regional district and approval of the apportionment method selected by the submitting board of education.

The 1953 act also amended B. 8. 18:8-17 to provide that expenses should be apportioned on the following bases: (1) amounts for interest and redemption of bonds — ratables of the districts; (2) amounts for annual or special appropriations for regional districts created before the adoption of the act •—• ratables of the districts; (3) amounts for annual or special appropriations for regional districts created thereafter — either ratables or average daily attendance, as determined by the boards of education and ratified by the voters.

Aside from minor changes effected by L. 1954, c. 13, L. 1955, c. 159, L. 1956, c. 95 and L. 1965, c. 110, no other amendatory legislation was adopted until the enactment of L. 1965, c. 175, the act here principally involved (incorporated into N. J. 8. A. as section 18:8-17.2). This read as follows:

Whenever any school district which was comprised of 2 municipalities has, since January 1, 1957, joined in the formation of a regional district for high school purposes and thereafter joined in the formation of another regional district for all other school purposes, the amounts to be raised in such municipalities for annual or special appropriations for both such regional districts shall be apportioned between such 2 municipalities upon the basis of the number of pupils enrolled therefrom on the last school day of September of the current school year in the samo manner as would apply if said municipalities comprised separate constituent school districts.

With the revision of Title 18 as Title 18Á (see footnote 1, supra), N. J. 8. A. 18:8-17.2 was superseded by N. J. 8. A. 18A:13-23, effective January 11, 1968. This reads:

Tlie annual or special appropriations for regional districts, exclusive of the amounts to be raised for interest upon, and the redemption of, bonds payable by the district, shall be apportioned among the municipalities included within the regional district as follows:
a. In regional districts in which apportionment on the basis of the number of pupils enrolled on the. last school day of September of the current school year is in effect, such apportionment shall be made uiion said basis;
b. In all other regional districts upon the basis of the apportionment valuations, as defined in section 54 :4~49 of the Revised Statutes, of the constituent districts, [emphasis added]

In other words, insofar as the litigants before us are concerned, the revision froze the status of apportionment as changed by L. 1965, c. 175. Under that act, the apportionments since January 1, 1966 have been made on the basis of pupil enrollment in the schools of the respective municipalities here involved.

II. Effect of L. 1965, c. 175

The parties agree that Tinton Falls Regional Elementary School District is a school district that meets the criteria of L. 1965, c. 175. They also agree that they know of no other regional school district in the State that precisely meets all of the criteria specified. Excluded by the terms of the act would be: any school district comprising more than two municipalities; any school district which took any of the determinative steps prior to January 1, 1957, and any school district which regionalized for elementary school purposes prior to regionalization for high school purposes. Background materials supplied us by defendants leave little doubt that L. 1965, c. 175, was conceived, tailored and enacted for the sole purpose of relieving New Shrewsbury from what was regarded as an unfair burden of. the school costs vis-a-vis Shrewsbury in the two regional districts (elementary and high school) involved. The parties agree that as of the period of time since January 1, 1966 (and probably for the foreseeable future) the change from assessed valuations to enrollment of pupils as the basis of apportionment will redound substantially to the pecuniary benefit of New Shrewsbury at the expense of Shrewsbury, in camparison to the preexisting situation.

By their complaint, filed in December 1967, plaintiffs attacked the altered basis for apportionment as invalid and sought readjustment in favor of Shrewsbury for its payments of school costs for the years already affected bjr L. 1965, c. 175 and a declaratory judgment that in the future apportionment be made under the controlling statutes as of prior to L. 1965, c. 175. Their appellate brief contends the act offends the equal protection clause of the Fourteenth Amendment of the United States Constitution; contravenes the statutory and constitutional right to vote, and constitutes special and local legislation relating to taxation or exemption therefrom in violation of the prohibition of such special and local laws in N. J. Const. Art IV, § YII, par. 9(6). In relation to the last point, this court has invited and received supplemental briefs as to whether the appropriate subparagraphs of paragraph 9 to be considered in relation to the constitutional attack upon chapter 175 are'not rather (7) and (13), prohibiting special and local laws, respectively, “Providing for the management and control of free public schools” and “Regulating the internal affairs of municipalities formed for local government and counties * * *.”

Defendants assert the constitutional questions argued can he avoided by holding for them on non-constitutional grounds. We proceed to consider the latter.

III. Status of Alfred Vail Mutual Association as Plaintiff

If the named plaintiff had no status to sue, the constitutional issues would still require determination since plaintiff municipality, Township of Shrewsbury, unquestionably is a proper party plaintiff. However, we think the Association, particularly as the largest taxpayer in the municipality, has standing to sue to redress an illegal diversion of municipal funds. See Haines v. Burlington County Bridge Comm., 1 N. J. Super. 163, 171-172 (App. Div. 1949).

IV. The Constitutionality of L. 1965, c. 175, as Moot in View of N. J. S. A. 18A :13-23

Defendants argue that since N. J. 8. A. 18:8-17.2 (quoted above), whose source is L. 1965, c. 175, has been superseded by N. J. S. A. 18A :13-23, the validity of chapter 175 is moot, and they claim that N. J. S. A. 18A:3 3-23 is not being challenged by plaintiffs. This approach evades the real issue. As noted above, N. J. S. A. 18A :13~23 did not effect any substantive change in the law but merely froze the status of all the applicable law as it then stood, necessarily including the provision of L. 1965, c. 175. Consequently, plaintiffs’ attack, though addressed to the 3965 act, necessarily encompasses so much of N. J. S. A. 18A:33-23 as continues its effect.

V. The Inappropriateness of Plaintiffs’ Claim Insofar As They Seek “Damages ”

Defendants point to allegations in plaintiffs’ brief concerning this action as one to recover “damages” and argue that they have committed no “wrong” warranting an action for damages. References to damages in plaintiffs’ brief are misconceptions. The nature of the relief sought by. plaintiffs is more accurately stated in the prayer for relief in their complaint, wherein, as noted above, they seek judgment that amounts to be used for annual and special appropriations for school purposes be apportioned between the constituent municipalities upon the basis of assessed valuations, and that the determination be made retroactive so as to credit Shrewsbury, in the course of future apportionments, for excess moneys previously exacted from it pursuant to the 1965 statute. Thus understood, this is not a tort or contract action for “damages” but rather for relief in lieu of prerogative writs.

YI. L. 1965, c. 175 as Prohibited Special or Local Legislation

We conceive this to be the determinative issue before us and are satisfied that plaintiffs are basically right on it. However, the statute is not, as plaintiffs first argued, in the category of special laws “relating to taxation or exemption therefrom.” The act has, nothing to do with the levying of taxes. Rather, it has to do with the allocation and use of municipal funds, derived from whatever sources, for the support of public schools. In that sense it prima, facie falls into the category “(7) Providing for the management and control of free public schools” of paragraph 9 of Section YII of Article IY of the Constitution of 1947, prohibiting private, special or local laws in that and 12 other categories. Cf. Riccio v. City of Hoboken, 69 N. J. L. 649 (E. & A. 1903). Defendants argue to the contrary, contending that apportionment of costs between municipalities for regional school purposes does not appertain to either “management” or “control” of schools. They point to what they regard as a significant difference in this regard between the pertinent language of the present constitution (1947) and that used in the 1875 amendment of Article IY of the 1844 constitution: “Providing for the management and support of free public schools.” Substitution of “control” for “support” in 1947 is argued to indicate an intent of the framers of the present constitution to exclude fiscal regulations from the intent of the provision relating to special and local laws concerning public schools.

An examination of the proceedings of the 1947 Constitutional Convention shows the position advanced not to be substantiated. On July 1, 1947 the Committee on the Legislative unanimously voted to retain Article IV, § VII, paragraph 11(10), the comparable provision of the former constitution, without change. Ill Proceedings of Constitutional Convention of 1917, at 496. At the same time the committee, with one dissent, agreed that “the attention of the proper Committee of the Convention should be called to the possibility of rephrasing any of the foregoing paragraphs [concerning special, private or local laws] without changing the sense thereof.” Id. (emphasis ours). Charles deE. Besore, committee technician, was assigned the task of preparing a tentative draft of Article IV (Legislative), and such a draft was presented by him to the committee on July 15, 1947. Id., at 645. This included paragraph 9(7) as it now stands, of the present constitution, and the draft of that provision was approved by the committee without change. Id., at 653. The text is found in II Proceedings of the Constitutional Convention, at 1067. It was adopted by the convention in that form. While a comparison of all ten subparagraphs of paragraph 9 in the former constitution, listing prohibited types of special, private or local laws, with the corresponding provisions in the new constitution, shows variations in language as to five, none appear to be intended as substantive changes but rather to serve the committee’s objective of “rephrasing * * * without changing the sense.”

We consequently conclude that the constitutional purview of “management and control” should not be held to be narrower than “management and support,” and that the act now under examination falls within the category of the former.

In any event, in regulating the quantum of contributions from municipalities toward governmental purposes, L. 1965, c. 175, falls into the category, under the cited constitutional provision, of “(13) Regulating the internal affairs of municipalities * * Jersey City v. Zink, 133 N. J. L. 437, 447-449 (E. & A. 1945). As to this, defendants present no serious rebuttal.

We thus arrive at the disputed issue whether L. 1965, c. 175, is a special or local law at all, as contrasted with a general law. In the constitutional sense, every law is either general or special (or local or private). In Harvey v. Board of Freeholders of Essex County, 30 N. J. 381, (1959), the court said:

In deciding whether an act is general or special, it is what is excluded that is the determining factor and not what is included. * * * if no one is excluded who should be encompassed, the law is general. Another requirement of a general law is that it must affect equally all of a group who, bearing in mind the purposes of the legislation, are distinguished by characteristics sufficiently marked and important to make them a class by themselves, [at 389]

One of the leading cases is Koons v. Board of Commissioners of Atlantic City, 134 N. J. L. 329 (Sup. Ct. 1946), aff’d o.b. 135 N. J. L. 204 (E. & A. 1947). There an act had been passed which permitted any city with a population of 50,000 and which bordered on the Atlantic Ocean to levy a retail sales tax. In effect, although not by name, the act applied only to Atlantic City. The ostensible purpose of the act was to permit the raising of additional revenues by seaside municipalities recently ravaged by a hurricane. The court found no valid basis for this classification since there were smaller communities similarly affected but in effect excluded from the act. It found that there was no basis to differentiate according to population except to exclude these other communities that faced a similar problem. It held that “the particular statute was designed for the relief of but one municipality of a group similarly circumstanced, and therefore it is special and local in the constitutional sense.” 134 N. J. L., at 337. The reason was that “It has the vice of discrimination against members of a class to which the subject matter of the legislation reasonably and naturally relates.” ed., at 337. The test laid down (at 332-333) to distinguish a local law from a general one was:

The test is whether the statutory class has a logical and reasonable basis, free from artificiality and arbitrariness, embracing all and omitting none naturally falling into that category. Is the legislation of such a character as that it is equally appropriate to all forming the statutory class, and is that class embracive of all in like situation and circumstances, and therefore natural members of the class? If, viewed in the light of the legislative design, the necessity and propriety of the classification reasonably appears, it is not within the constitutional interdict.

"We are bound to approach the question posed with an initial presumption of constitutionality of the legislative enactment, Jamouneau v. Harner, 16 N. J. 500, 515-516 (1954), and have done so here. But the presumption has vanished in the face of the fact not merely that the law in question applies, and was plainly intended to apply, only to the Shrewsbury-New Shrewsbury situation, but that no conceivable purpose or object of the law can rationalize the exclusion from its operation of all the regional school districts noted above to be so excluded as a result of the legislative criteria for the school districts designated for inclusion. See Budd v. Hancock, 66 N. J. L. 133, 135-136 (Sup. Ct. 1901); City of Bayonne v. Palmer, 90 N. J. Super. 245, 283-284 (Ch. Div. 1966), aff'd 47 N. J. 520 (1966).

Ostensibly, this is a law designed to compel certain regional school districts to apportion costs of annual or special appropriations for school purposes among constituent municipalities on a cost-per-pupil basis whether or not there has been any prior establishment of the regional district on an assessed valuation apportionment basis — i. e., a mandate for apportionment on the per-pupil basis in such districts. The act is not geared to criteria suggesting the rational inappropriateness, unfairness, or other kind of unsuitability of the assessed valuation basis for apportionment in relation to the municipalities in the districts affected. Nor do defendants suggest any reason why mandated employment of the cost-per-pupil basis is not as appropriate to regional districts formed prior to January 1, 1957 as to those formed subsequently, see Alexander v. City of Elizabeth, 56 N. J. L. 71, 23 L. R. A. 525 (Sup. Ct. 1893); or as appropriate to districts comprised of more than two municipalities as to those consisting of only two; or as appropriate in eases where the high school district was formed subsequent to the formation of the regional district for all other purposes as where the high school district was formed first; or, indeed, as appropriate where the school district has not entered into a regional high school district but only a regional elementary school district, or vice versa.

The validity of this classification cannot be defended on the assertion that the act is designed to remedy unfairness of apportionments where one constituent municipality has a disproportionate ratio of pupils to assessed valuations as compared with others in the district, since no such criterion is set forth in the act nor is any such relief extended to municipalities so disadvantaged in any other regional school districts. Of course, we cannot assume that this school district is the only regional district in the state where a disproportionate ratio of that nature may exist.

The only justifiable inference on what is before us is that the Legislature sought to relieve a single municipality whose special equities were called to its attention and in doing so designedly excluded all other regional school districts without regard to whether, in any of those, similar imbalances might not exist also appropriately calling for mandating the per-pupil method of apportionment. This is a veritable prototype of impermissible special and local legislation and must be pronounced void. The inquiry is not whether New Shrewsbury has an equitable claim for relief as against Shrewsbury. If there is a proper case for relief, the Legislature may provide for it, but only by a general law or laws (absent proper recourse to the exception provided by N. J. Const. (1941), Art. IV, § VII, par. 10). Charier 115 is not such.

VII. Other Constitutional Attacks

We find no merit in plaintiffs’ contentions that L. 1965, c. 115, deprives them of equal protection of the laws, within the Eourteenth Amendment, and impairs the right of Shrewsbury citizens to vote (passing any question of status of plaintiffs to sue in the latter regard). In view of the conclusions previously arrived at we need not expand on the determinations just stated.

VIII. Belief

It appears clear to us that equitable considerations preclude affording Shrewsbury any readjustment of apportionments for school years earlier than 1968-1969. There is no good reason why this action should not have been instituted prior to December 1961, more than two years after adoption of the enactment complained of. In the meantime New Shrewsbury was reasonably justified in ordering its fiscal affairs on the basis of the altered method of apportionment actually put into effect under the 1965 act.

Once this action was instituted, however, Now Shrews-bury was on notice of the asserted illegality, and since the grievance of Shrewsbury is a continuing one it is appropriate to provide for recapture by Shrewsbury of the excess contributed by it beginning with the school year 1968-1969 to the costs in question over the amounts apportionable under the law as it stood prior to L. 1965, c. 115. As to apportionments not yet made, those will, of course, be effected under the provisions of the prior law. On notice to the parties, the trial court may provide by order for the readjustment between the municipalities of the contributions made for the prior school years specified above, in such annual installments; or otherwise, as may seem fair and convenient to the court, by appropriate debits and credits in the course of the apportionments to be made for any year or years not yet apportioned. If necessary for the effectuation of this determination, the Monmouth County Board of Taxation may be added as a party to this action.

The judgment is reversed and the cause remanded to the Law Division for further proceedings conforming with this opinion. PTo costs.

       This section is now reflected in N. J. S. A. 184 :13-23. Title 18 of the Revised Statutes of 1937 was revised as Title 18A, N. J. S. A., effective January 11, 1968 (L. 1967, c. 271). References hereinafter will be to Title 18 except when the sense of the text requires reference to Title 184.


author: Beeslin, J. D. C.

text:
    DEN GRE PLASTICS CO., INC., A CORPORATION, PLAINTIFF, v. THE TRAVELERS INDEMNITY COMPANY, A CORPORATION, DEFENDANT.
    Superior Court of New Jersey Law Division
    Decided November 14, 1969.

      Mr. Sidney Krieger, attorney for plaintiff.

      Messrs. Michels, Schwartz & Maher, attorneys for defendant.
   Beeslin, J. D. C.

(temporarily assigned). Plaintiff seeks recovery for the theft of merchandise in the amount of $3,623.05, pursuant to the terms and coverage of Transportation Policy No. MT 841667 issued to it by defendant. Plaintiff leased, certain promises in Lodi, New Jersey, which consisted of buildings designated as Nos. 20 and 122. Attached to said buildings was a loading platform which plaintiff utilized in loading merchandise upon its trucks and those of public carriers. Defendant admits issuance of the policy but contends that the theft did not occur while the property was in plaintiffs custody and actually in transit, as required by paragraph 3 of the policy, and, additionally, that the property at the time of the theft was located on premises occupied by plaintiff and therefore was not covered under paragraph 10(a)(1).

Paragraph 3 provided:

Tile insurance covers only while the property is in the custody of the assured and actually in transit and only while contained in or on the following described vehicles owned, rented or leased and operated by the assured

Paragraph 10 (a)(1) provided:

This policy does not insure (a) Property while it is located; (1) In or on premises, owned, leased or occupied by the Assured.

The proofs established that on Saturday morning, March 23, 1968, one Samuel Berger, an employee of plaintiff backed a 1965 GMAC truck (covered by policy) to the loading platform and proceeded to load it with the merchandise allegedly stolen. Upon completing the process he proceeded to move the truck approximately ten feet to another location against the loading platform. He prepared four invoices covering the loaded merchandise which was then to be driven by a fellow employee on the following Monday morning to Brooklyn, New York, and Middle Village, New York. The invoices were placed in the office of the company where they were to be picked np by the driver of the truck on Monday morning. Berger discovered that the truck was missing upon his arrival at work on Monday morning.

Plaintiff contends that the loading of the merchandise on the truck by Berger and the moving of the same to another location alongside the loading platform constituted a compliance with paragraph 3 of the policy in that the merchandise was placed in transit by the action of Berger in moving the truck. It further contends that the property was not on premises occupied by plaintiff at the time of the theft since it leased only the two buildings and not any property adjacent thereto, including the area upon which the truck was located.

I

Was the property actually in transit, as required by paragraph 3, when the truck was loaded and moved to another location adjacent to the loading platform preparatory to delivery on the following Monday morning?

A policy of insurance is a contract and like any other contract is to be given a reasonable construction in conformity with the intention of the parties as gathered from the ordinary and commonly understood meaning of the language employed. Shuman v. National Cas. Co., 80 N. J. Super. 310 (Law Div. 1963), & rev’d on other grounds, 88 N. J. Super. 57 (App. Div. 1965); Dealers Dairy Products Co. v. Royal Ins. Co., 170 Ohio St. 336, 164 N. E. 2d 745, 80 A. L. R. 2d 441 (Sup. Ct. 1960). In the latter case the court stated that the words “in transit” and “transportation” ordinarily mean the movement of the goods on a transporting conveyance from the starting point to the point of delivery, including stops along the way, incidental to carriage. Transit implies a movement towards destination. Armory Mfg. Co. v. Gulf C. & S. F. Ry. Co., 89 Tex. 419, 37 S. W. 856 (1896). It has a significance of activity, motion and direction; in common speech it is the act ox process of causing to pass from one place to another. San-Nap-Pah Mfg. Co. v. Firemen's Ins. Co., 47 N. Y. S. 2d 542 (City Ct. 1944). In Mayflower Dairy Products v. Fidelity Phenix F. Ins. Co., 170 Misc. 2, 9 N. Y. S. 2d 892 (Sup. Ct. 1938), the court, construing a policy provision similar to the instant one, held:

“Transportation” or “in transit” as applied to a seller making its own deliveries to customers means the movement of the loaded conveyance carrying the goods from the starting point or seller's premises to the point of destination or place of delivery to the buyer or customer. While there may be some reasonable deviation such as temporary stops inciden! al to the process of delivery or necessary for those engaged in same, or even the return of undelivered goods, ‘transportation’ or ‘in transit’ implies the continuous action of moving the goods from one point and putting them down in another, [at 893]

In Home Insurance Co. v. F. & F. Clothing Co., 250 Md. 534, 243 A. 2d 572 (Ct. App. 1968), the insured’s employee drove a loaded station wagon from the company building to his home for delivery early the next morning. During the night, while the car was parked at the employee’s house, it was stolen. The court, confronted with the question of whether the cargo was “in transit,” relied on Mayflower Dairy Products v. Fidelity-Phenix F. Ins. Co., supra, and other cited cases. Determining that, in light of the reviewed decisions, transit does not commence until the conveyance leaves the point of origin, at least in the process of moving toward its destination, the court held that when he drove the car from the company plant to his home, the driver removed it and its cargo from the point of origin and from any position of storage; it was thus “in transit.”

In San-Nap-Pak Mfg. Co. v. Firemen's Ins. Co., supra, the plaintiff loaded goods on to its truck on a Saturday, to be ready for delivery the following Monday. The truck was left in an open lot contiguous to its loading platform. During the weekend the goods on the truck were damaged. Plaintiff sued to recover under defendant’s policy insuring the plaintiff against loss of goods while the latter were “in transit.” The court held that “transit” could not be construed as initiating in the loading of the trailers and their supinely lying in the plaintiff’s lot stagnant, but not in repose as in an interim of transit which had not terminated. The court further stated:

In [loading the cargo onto the trucks] the plaintiff consulted its own convenience to expedite the delivery of goods. * * * When its chauffeurs reported early Monday morning to begin their carriage in tractors and trailers already loaded; * * * the goods were in storage * * * not “in transit.” [47 N. Y. S. 2d at 545]

In Mayflower Dairy Products v. Fidelity-Phenix F. Ins. Co., supra, plaintiff’s truck, loaded with merchandise, was left on plaintiff’s premises overnight to await delivery the next day. During the night the truck was stolen and plaintiff started suit under a transportation insurance policy. The court held that “in transit” could not include a. period commencing on the evening of one day when for its own convenience the seller, in its own premises, loaded the goods on its truck, and extending then on through the night during which the loaded truck was stored on such premises, on to that time in the morning of the next day when the truck was manned and proceeded on its way to the point of destination. Such a situation, the court determined, implies storage.

Plaintiff, in support of its position, relies strongly on the case of J. G. Ries & Sons, Inc. v. Automobile Ins. Co., 121 N. J. L. 493 (E. & A. 1938). There plaintiff’s truck was loaded with pig tin at a Brooklyn pier; the cargo’s destination was Bloomfield, New Jersey. The loading was completed at an hour too late for delivery that day, and so the truck with its load was driven to plaintiff’s garage in Newark for delivery on the following day. Overnight, the pig tin was stolen. The applicable policy provision contained a warranty requiring the truck, while carrying merchandise, to be guarded by two men. The lower court decided that since the truck, when its cargo was stolen, was being stored overnight, it was not “carrying” merchandise within the purview of the policy. The Court of Errors and Appeals reversed, stating:

The fact that tlie insured, for the more effective performance of its duty as carrier, interrupted the course of its vehicle and housed it * * * overnight does not, in our opinion, change his position as a common carrier * * * The act of transportation was begun at the pier * * * if the men in charge had left the truck in the highway while they obtained lodging * * *, or even at midday when they went to a dining room for a meal, could it be said that because the truck was not in motion it was not carrying the goods which it was in the interrupted process of transporting? Tat 497]

The above case differs radically from the instant one. In Bies the loaded truck proceeded from Brooklyn to Newark. Were it not for the late hour, there would have been a direct delivery from the pier to the consignee at Bloomfield. The truck was garaged overnight only to faciliate the “interrupted” process of delivery. Upon the loading of the truck in Brooklyn there was then immediate and substantial movement toward the destination, and it was with this in mind that the court held that act of delivery was begun at the pier. The court by no means indicated its readiness to hold that, were the truck stationed at the pier overnight, or moved from one part of the loading platform to another and then stationed overnight for delivery the next day, the act of delivery would still have begun at the pier. Moreover, applying the present facts to the Bies holding, could the stopping of the plaintiff’s truck ten feet from the starting-point along the loading platform, a travel time of seconds, and there leaving it for over a day, be considered a mere “interruption of delivery”? This court thinks not.

Plaintiff also offers Brammer Corp. v. Holland-America Insurance Co., 34 Misc. 2d 337, 228 N. Y. S. 2d 512 (Sup. Ct. 1962), as further authority for its contentions. There the goods insured were manufactured in plaintiff’s warehouse and moved to the shipment area of the building where they were placed in the hands of an independent trucker for delivery. While they were still in the warehouse, the goods were damaged and plaintiff sought to recover under a policy insuring his goods while in transit. The policy stated that insurance attached from the time the goods left the warehouse. Construing the policy, the court determined that

The loading of the trucks within the building does not constitute “in transit” until there is a movement out of the building, [at 513]

It is urged in the present ease that since the insured goods were removed from the building onto the truck, there was a movement out of the building, and thus the “in transit” period commenced. Plaintiff, however, overlooks the fact that the policy in Brammer specifically provided that the insurance attached when the goods left the building. The holding was confined to its own factual situation, determined by the definitions in that warehouse-to-warehouse policy. That holding should not and cannot he indiscriminately extended.

Admittedly, all the above cited cases are helpful as guidelines, but none of them involved the.precise factual situation presented here. Thus, the court’s decision must depend solely upon the instant fact pattern. Home Insurance Co. v. F. & F. Clothing Co., supra, In the final analysis, the outcome of such a ease as this should he determined not by precise semantic shadings of terms of art, hut by a commonsense appraisal of the overall situation. Ben Pulitzer Creations, Inc. v. Phoenix Ins. Co., 47 Misc. 2d 801, 263 N. Y. S. 2d 373 (Sup. Ct. 1965). Accordingly, it is this court’s decision that the loading of the truck and its subsequent movement to another location adjacent to the loading platform, as preparation for actual delivery, did not render the truck and its contents “in transit” within the meaning of the policy provisions. To be considered “in transit”, cargo must be in the process of movement toward its destination; the act of delivery must have begun. Although plaintiff testified that the truck was “moved,” the movement was one of only ten feet along the loading platform; the truck did not leave the platform area. This movement did not initiate the delivery, nor was it one toward its destination. It would seem that the purpose of moving the truck was to clear the loading platform, not to start delivery. Plaintiff’s witness testified that the drivers, when they are about to begin delivery, always obtain an invoice at the plaintiff’s office and take it with them on their delivery. Ho invoice was picked up for the stolen shipment and none was to be picked up until the following Monday. This further indicates that there was no intent to commence delivery until Monday. The loading of the truck on Saturday was for plaintiff’s convenience, and the truck, in its supine position over the weekend, was stored, not in transit.

II

Did the theft occur while the merchandise was located on premises occupied by plaintiff?

The land upon which the truck was stored at the time of the theft was a paved driveway, contiguous to the loading platform at plaintiff’s building. Although plaintiff asserts that it leased only the buildings and not the driveway, it must be pointed out that plaintiff made full use of the driveway, especially that portion adjacent to the loading platform. Indeed, plaintiff could not have loaded its trucks from the platform unless they were positioned in the driveway. There was testimony to the effect that although other tenants in the building complex had made infrequent use of the driveway, plaintiff recently had exclusive enjoyment of it.

It is clear that, at the least, an easement by necessity over the driveway was created in favor of plaintiff. Easements by necessity arise by virtue of inference or implication of an intent implied from the facts surrounding the primary conveyance. The “necessity” which may give rise to an easement does not necessarily connote that without an easement the dominant tenant could have no beneficial enjoyment of his lands whatsoever, and the word should be understood as meaning reasonably necessary for the convenient, comfortable or beneficial enjoyment. Tidewater Oil Co. v. Camden Securities Co., 49 N. J. Super. 155 (Ch. Div. 1958). Everything that belongs to the demised premises or is used with and appurtenant to them and is reasonably essential to their enjoyment passes under a lease as incident to them, unless especially reserved. Rayhertz Amusement Corp. v. Fulton Improvement Co., 124 N. J. Eq. 121 (Ch. 1938). A lease of a particular part of a building gives the lessee no rights outside of such part, except such as were intended to be included as appurtenant to the beneficial enjoyment thereof, or such as it was manifest had been designed and appropriated for the benefit of the leased premises. Owsley v. Hamner, 36 Cal. 2d 710, 227 P. 2d 263, 24 A L. R. 2d 112 (1951). The latter case held that the rights such as the easements there involved constituted an implied part of the lease. Moreover, if necessary means of egress to the demised premises are not shared by any other tenant and control thereof is not reserved by the landlord, such means of egress are regarded as part of the leased premises (emphasis supplied). Grochowski v. Stewart, 53 Del. 330, 169 A. 2d 14 (1959).

Whether the use of particular areas apart from the demised premises is an appurtenance to the leasehold is primarily a question of fact. Olson v. Hoffman, 65 Ill. App. 2d 87, 213 N. E. 2d 68 (App. Ct. 1965). In the present case the use of that portion of the driveway area adjacent to plaintiff’s loading platform was necessary for the beneficial enjoyment of the leased premises. And although the testimony could negate a finding that there was always exclusive enjoyment and control by plaintiff and that, consequently, the area might be deemed a part of the leased premises, it cannot be disputed that plaintiff’s right to the area passed under the lease to afford it unlimited and full use. The area in question was an appurtenance to plaintiff’s leasehold.

Realizing that the word “occupy” is variously defined as meaning to possess, to have in possession or use, to use, 67 C. J. S. Occupy, at 83; United States v. Burleson, 127 F. Supp. 400 (D. C. E. D. Tenn. 1954), this court holds that the fact that plaintiff had the right to the use of the area, that it did actually make exclusive and continuous use of it, and that the area was of such a nature as to substantially lessen the value of plaintiff’s leasehold interest were the plaintiff prohibited from its use, all show that plaintiff did “occupy” the area within the meaning of the policy.

Although some decisions have stated that “occupancy” generally refers to actual possession to the exclusion of everyone else from enjoyment, Paulson v. Rogis, 247 Iowa 893, 77 N. W. 2d 33 (1956), I feel that, in light of the particular circumstances presented here, the conclusion that the plaintiff did occupy the area is warranted.

Judgment for the defendant.


author: Artaserse, A. J. S. 0.

text:
    HAROLD J. RUVOLDT, AND HAROLD J. RUVOLDT, JR., PLAINTIFFS, v. JAMES A. TUMULTY, JR., PROSECUTOR OF THE COUNTY OF HUDSON, ARTHUR J. SILLS, ATTORNEY GENERAL OF THE STATE OF NEW JERSEY, AND JOSEPH T. BRADY, SUPERINTENDENT OF ELECTIONS OF THE COUNTY OF HUDSON, DEFENDANTS.
    Superior Court of New Jersey Law Division
    Decided June 19, 1969.

      Mr. Harold J. Ruvoldt, Jr. for plaintiffs (Messrs. Ruvoldt & Ruvoldt, attorneys, pro se).

      Mr. Gregory J. Casiano, Assistant County Prosecutor, for defendant (Mr. James A. Tumulty, Jr., Hudson County Prosecutor, attorney pro se).

      Mr. Arthur J. Sills, Attorney General of New Jersey, did not appear.

      Mr. Joseph T. Brady, Superintendent of Elections of Hudson County, appeared pro se.

   Artaserse, A. J. S. 0.

This is the return date of an order to show cause why the prosecutor of Hudson County should not be enjoined from presenting to the Hudson County grand jury testimony and evidence of allegedly fraudulent challenge permits employed in the June 3, 1969 primary. The order further directs the prosecutor to show cause why he should not be superseded in this investigation by the Attorney General and why he ought not recognize Harold J. Ruvoldt, Jr. as associate counsel pursuant to N. J. S. A. 19:34-63 in any presentation to the grand jury.

The proceeding involves a number of novel legal issues which must be understood in the political context of Hudson County, 1969.

On May 13, 1969 Jersey City underwent the initial phase of its mayoral election. Since no one received a majority, the two highest candidates, Thomas J. Whelan, backed by the county Democratic organization, and Thomas Gangemi vied in the June 17 runoff.

On June 3, 1969 the gubernatorial primary election in Hudson County to a large extent pitted the same forces against each other. This time the standard bearer for the organization was Senator William Kelly, while former Governor Robert B. Meyner drew the support of the Gangemi and other anti-administration forces.

It is alleged in the affidavit of Nicholas D’Agosto, acting clerk of the Hudson County Board of Elections, that on June 3, 1969 he discovered several fraudulent challenge permits in circulation. He notified the prosecutor, who immediately initiated an investigation and began issuing subpoenas to various persons to appear before the grand jury on the following Monday. It is admitted that over 70 persons were subpoenaed to appear before the grand jury prior to the institution of this action.

On June 5, 1969 plaintiffs Harold J. Ruvoldt and Harold J. Ruvoldt, Jr., two of the persons subpoenaed, who are also members of the bar of this State, filed a complaint in the Law Division of the Superior Court charging, among other things, that the prosecutor was illegally exercising powers delegated by the Legislature to the superintendent of elections and that he was using his office to influence the Jersey City runoff election in violation of plaintiffs’ constitutional rights.

Plaintiffs sought an injunction against the prosecutor, his supersedure by the Attorney General, and his recognition of Harold J. Ruvoldt, Jr. as his associate counsel in any presentation of these matters to the grand jury.

This court issued a temporary restraint enjoining the prosecutor from presenting any testimony or compelling any witnesses to appear before the grand jury pending this return date. The prosecutor’s motion to dissolve the restraint was denied on June 6, 1969. At the hearing upon that motion the Attorney General intervened on behalf of the superintendent of elections as well as on behalf of all the people of the State to request that the restraint continue until this return date. The Attorney General argued that this would insure a free and unimpaired election without any possibility of intimidation. He further argued that the investigation was properly for the superintendent of elections, and not the prosecutor, to make. The court, therefore, directed that the superintendent and the Attorney General be made parties defendant. The court further directed that plaintiffs file an amended complaint amplifying their allegations of constitutional injury. The amended complaint was filed only yesterday, June 18, 1969.

Plaintiffs in their brief state that they seek relief both individually and as members of a class. The complaint makes no allegation that it is a class action. However, since this was the obvious, though inarticulated, intent, the court considers the pleadings amended as such, and treats the suit as a spurious class action. B. B. 4:36-1 (c). There is some question whether this action should technically be considered a complaint in lieu of prerogative writs sounding in prohibition, or whether it is more correctly denominated as an equitable action. In view of our practice, and since the jurisdiction of this court includes both law and equity, this question is academic. In any event, it is accepted law that the court can enjoin a prosecutor who under color of his office acts beyond his authorized powers. Brex v. Smith, 104 N. J. Eq. 386 (Ch. 1929); Bantam Books, Inc. v. Melko, 25 N. J. Super. 292 (Ch. Div. 1953) modified 14 N. J. 524 (1954). While it is true that both these eases spoke of equity protecting property rights from an overzealous prosecutor, it cannot be gainsaid today that personal rights warrant at least as much protection in equity. The claim that the prosecutor was using his office to influence the Jersey City election has been mooted by the temporary restraint and the passage of that election into history. The complaint apparently implies a discriminatory application of the law by the prosecutor to infringe or punish plaintiffs’ exercise of political rights guaranteed under the First and Fourteenth Amendments to the United States Constitution. The main support for this charge appears to be the dragnet-type investigation upon which the prosecutor embarked with his wholesale subpoenas.

In view of the broad statutory immunity granted to such witnesses by N. J. 8. A. 19:34^-60, it is argued that the only purpose of such an inquisition is harassment. The leading case concerning the uneven administration of a law fair on its face is Yick Wo v. Hopkins, 118 U. S. 356, 6 S. Ct. 1064, 30 L. Ed. 220 (1886), where the court said:

* * * Though the law itself be fair on its face and impartial in appearance, yet, if it is applied and administered by public authority with an evil eye and an unequal hand, so as practically to make unjust and illegal discriminations between persons in similar circumstances, material to their rights, the denial of equal justice is still within the prohibition of the constitution, [at 373, 374, 6 S. Ct. at 1073]

Yick Wo has never been applied in the context here sought in this State, and has rarely been applied elsewhere either as a defense to or prevention of criminal proceedings. See Comment, 61 Columbia L. Rev. 1103 (1961); Note, 59 Yale L. J. 354 (1950); Annotation "Penal Law Discriminatory Enforcementf", 4 A. Ij. B. 3rd 404 (1965). In any event, the allegations herein do not justify, and our ultimate disposition does not require, the development of such novel constitutional procedural protections at this stage of the proceedings.

The complaint prays for this court to supersede the prosecutor with the Attorney General pursuant to N. J. S. A. 52:17A-4(/). It is not clear whether a litigant is entitled to this relief. The power given to the assignment judge, the board of chosen freeholders and, to a more limited degree, to the Governor under this statute is a legislative delegation of authority to determine when and to what extent the “exclusive” prosecution of the criminal business in the county, N. J. S. A. 2A :158-4, shall he withdrawn from the prosecutor. See Morss v. Forbes, 24 N. J. 341 (1957), for a comprehensive discussion of the development of the office of the prosecutor and its relationship to the Attorney General. It is doubtful if a litigant has any right to demand that the assignment judge exercise his power under this statute. On the other hand, it seems that one appropriate way by which the assignment judge may be alerted to the possible advisability of requesting the Attorney General to supersede the county prosecutor is through the medium of litigation. However, whether it is a justiciable demand or not, the exercise of this power is obviously discretionary with the assignment judge, and the assignment judge need not exercise that power now because the prosecutor has, at this time oil oral argument, voluntarily consented that the Attorney General take over this investigation.

The crucial issue in this case is the legislative delineation of authority between the prosecutor and the superintendent of elections in counties of the first class. N. J. S. A. 19:32-6 provides: “The superintendent shall have power to issue subpoenas for the purpose of investigating any complaint of violation of the election laws of the state * * *” Although the prosecutor argues that this was only effective as to subpoena power, the language is unambiguous and is all-encompassing, and this court holds that the superintendent of elections has the right and the power and the duty of investigating any complaint of any violation of any election laws in the State.

N. J. S. A. 19 :34—62 reads as follows:

If tlie prosecutor of the pleas of the county shall be notified of any violation of any of the provisions of this title, he shall forthwith diligently inquire into the facts, and if there is reasonable ground for instituting a prosecution, such prosecutor of the pleas shall present the charge, with all the evidence which he can procure, to the grand jury of the county. Nothing herein contained shall justify any such prosecutor in counties of the first class in exercising the powers conferred upon the superintendent of elections in such counties. [Hmphasis added]

Prior to the creation of the office of superintendent of elections, the prosecutor had subpoena power to investigate election law complaints. L. 1918, c. 310. In 1933 the Legislature took this power from the prosecutor in counties of the first class and vested it in the superintendent. L. 1933, c. 9. In 1930 the limitation on the prosecutor was spelled out by the Legislature in its enactment of N. J. S. A. 19:34-63, quoted above. Significantly, the report to the Legislature by the New Jersey Election Laws Revision Commission (1930) describes the office of the superintendent in these words: “It is the right arm of the election law. It is the constituted police power and detective bureau. On it is imposed the onus for honest elections * * *” (at 14)

It is clear that the Legislature intended that its duly established administrative expert in election matters, the superintendent, should have primary responsibility to investigate alleged violations of the election laws. After the superintendent concludes his investigation, he may, if he feels there is reasonable evidence to warrant criminal action, refer his report to the prosecutor for action before the grand jury.

The superintendent must faithfully carry out his investigative function or else face public prosecution under N. J. S. A. 19 :34^48. The Legislature has made other similar divisions of investigative functions between the prosecutor and an administrative agency. Cf. N. J. S. A. 34:6-98.9 involving fatal mine accidents.

In this case the prosecutor, through an erroneous view of his jurisdiction, acted beyond his powers and bypassed the superintendent in contravention of N. J. S. A. 19 :34-63. The subject matter of the investigation is clearly an election law violation within the ambit of the superintendent’s investigative responsibilities. N. J. S. A. 19:34-6, loitering in polling place; N. J. S. A. 19:34^19, illegal insignia at polls; N. J. S. A. 19:34-30, soliciting, procuring or assisting violations of the election law. Cf. State v. Bott, 53 N. J. 391 (1969), concerning acts which fall both within a general and a more specific criminal statute.

Therefore, the court grants a permanent injunction against the prosecutor from proceeding with this matter until the superintendent shall have completed his investigation and referred the matter to him.

Since a complaint has been made by the clerk of the board of elections, albeit to the wrong official, the pnblic interest requires that the superintendent undertake his investigation without awaiting a further notification. In this regard the superintendent can call upon the assistance of his statutory counsel, the Attorney General, to advise him on any legal aspects of the investigation or to assist him in the conduct of his examination of witnesses. The prosecutor should turn over to the superintendent any evidence or complaints that he has concerning these violations.

Plaintiffs also sought to have the court order the prosecutor to recognize Harold J. Ruvoldt, Jr. as his associate counsel, pursuant to N. J. S. A. 19:34.-63, which reads as follows:

Any citizen may employ an attorney to assist the prosecutor of the pleas to perform his duties under this title, and such attorney shall be recognized by the prosecutor of the pleas and the court as associate counsel in the proceedings.
No prosecution, action or proceeding shall be dismissed without notice to, or against the objection of, such associate counsel until the reasons of the prosecutor of the pleas for such dismissal, together with the objections thereto of such associate counsel, shall have been filed in writing, argued by counsel and considered by the court, with such limitation as to the time of filing such reasons and objections as the court may impose.

In view of the injunction issued today, the court will not grant such an order since at this stage the prosecutor has no duty to perform until after the superintendent has acted. Furthermore, the court interprets the intent of the statute to be to guarantee a vigorous prosecution and prevent any attempts at a “whitewash” of the charges. Before ordering the prosecutor to accept a citizen’s nominee as associate counsel pursuant to this statute, the court would have to be convinced that the interest of the proposed associate counsel does not conflict with the intended prosecution.

An order should be submitted by counsel, consented to as to form or settled on notice, to the following effect: (1) judgment for plaintiffs on Count 1 quashing the subpoenas; (2) judgment for plaintiffs on count 3 granting injunction as set forth in this opinion; (3) judgment dismissing counts 2, 4, 5 and 6; (4) ordering the superintendent of elections to conduct an investigation as indicated in this opinion, and (5) without costs.


author: Joelson, J. S. C.

text:
    MICHAEL KANTER, BENJAMIN KANTER, JANE KANTER AND MARIANNE KANTER, PARTNERS TRADING AS KANTER ASSOCIATES, PLAINTIFFS, v. CITY OF PASSAIC, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY; BOARD OF ADJUSTMENT OF THE CITY OF PASSAIC; CITY OF PASSAIC REDEVELOPMENT AGENCY, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY; ELIAS DRAZIN; AND TABERON CORPORATION, A NEW JERSEY CORPORATION, DEFENDANTS.
    Superior Court of New Jersey Law Division
    Argued October 31, 1969
    Decided November 17, 1969.

      Mr. Frank A. Garlet argued the cause for plaintiffs (Messrs. Goldman, Garlet & Garrison, attorneys).

      Mr. Martin Klughaupt argued the cause for defendant Board of Adjustment of Passaic and all other defendants.

      Mr. Otto F. Blazsek appeared. for defendant City of Passaic and Elias Drazin.

      Mr. Meyer Sugarman appeared for defendant City of Passaic Redevelopment Agency (Messrs. Friedbauer & Friedbauer, attorneys).

      Mrs. Leslie W. Finch appeared for defendant Taberon Corporation (Messrs. Keenan and Finch, attorneys).
   Joelson, J. S. C.

Plaintiffs filed a complaint on April 16, 1969 seeking to set aside a variance granted by the Passaic Board of Adjustment to Taberon Corporation. Thereafter, on May 18, 1969 it filed a second complaint seeking to set aside certain other acts of the defendants which- will be hereinafter described. Both actions are complaints in lieu of prerogrative writs and have been consolidated. This matter now comes before the court on cross-motions for summary judgment made by identical plaintiffs and defendants in both actions.

The controversy centers around the authorization for defendant Taberon Corporation to construct an office building of no more than 18,000 square feet on the northwest corner of Prospect Street and Howe Avenue in the City of Passaic without any on-site parking facilities being provided. It is undisputed that under the Passaic zoning ordinance there is a requirement that one on-site parking space be provided for every 400 square feet of gross floor area for an office use in excess of 10,000 square feet.

It is also undisputed that the premises in question are included within the area of the redevelopment plan of the City of Passaic known as “Urban Renewal Plan for the Downtown Passaic Project, No. N. J. R.-71,” and that the area was duly designated by ordinance of the Passaic Board of Commissioners on May 24, 1966. It further appears that the ordinance specifically approved said urban renewal plan, which plan had been prepared pursuant to the Redevelopment Agencies Law, N. J. S. A. 4Q:55C-1 et seq., by the Passaic Redevelopment Agency for the area which had been determined to be a “blighted area.”

It is likewise uncontested that the Redevelopment Agency contracted to sell the premises to Taberon Corporation subject to that corporation being granted a variance from the zoning regulations so as to be able to construct a four-story office building without any on-site parking facilities. The parties also agree that such a variance was granted Taberon Corporation by the Passaic Board of Adjustment, but plaintiffs contest the validity of such a variance.

While contending that the variance was properly granted, the defendants also argue that it was not necessary to apply for the variance because of the ordinance of May 24, 1966 and subsequent amendments thereto. They point out that the ordinance specifically approved the urban renewal plan, and that section P of the plan provides that “The Urban Renewal Plan may be amended from time to time by Resolution of the Board of Commissioners of the City of Passaic and of the City of Passaic Redevelopment Agency.”

It is established that the. plan was amended by resolution of both the Redevelopment Agency and the board of commissioners. On October 17, 1969 the board of commissioners by resolution provided that an office building not in excess of 18,000 square feet may be erected on the site in question, and that “no on-site parking shall be required.”

Finally, on May 1, 1969 the board of commissioners passed an ordinance which provided:

In all areas officially declared and delineated as urban renewal projects areas or neighborhood development program areas by duly adopted ordinances of the governing body of the City of Passaic, the standards and controls and designations contained in such legally adopted urban renewal or neighborhood development plans shall apply and shall take precedence over any standards and controls contained in this zoning ordinance.

Defendants contend that it was not necessary to apply for a zoning variance because of the ordinance of May 24, 1966, the resolution of October 17, 1968 and the ordinance of May 1, 1969. Against this contention plaintiffs argue that the resolution of October 17, 1968 was null and void because it purported to amend an ordinance, and they urge the proposition that an ordinance can only be amended through proceedings having formality equal to that required in the original enactment of the ordinance. They further attack the validity of the ordinance of May 1, 1969 on the ground that it constitutes “spot zoning.”

It is clearly and firmly established that under normal circumstances an ordinance cannot be amended by a mere resolution. In Rhyne, Municipal Law (1957), at 233, we find the following: “Amendments of ordinances * * * must be accomplished through proceedings having all the formality requisite for the enactment of a new ordinance.” However, we are here faced with the unusual situation of an ordinance which approved a redevelopment plan which itself provided

for its future amendment by mere resolution. This raises a difficult question, upon which neither side has presented an exact precedent. However, it calls into question the validity of a part of the original ordinance of May 24, 1966, because that ordinance, in approving a redevelopment plan which provided for its own amendment by subsequent mere resolution of the Redevelopment Agency and the board of commissioners, in effect attempted to authorize its own amendment by simple resolution.

The courts have widely held that a presumption of validity applies broadly to all ordinances. 6 Me Quillin, Municipal Corporations, § 20.07, p. 18 (3rd ed., 1969). In State v. Mundet Cork Corporation, 8 N. J. 359 (1952), the court stated, with regard to an attack on the validity of a municipal ordinance, that

The exercise of the legislative judgment is not subject to judicial superintendence unless it is plainly beyond the realm of the police power or palpably unreasonable * * * The burden of proof is upon those who attack the ordinance to show clearly that it is unreasonable, [at 369]

In view of the foregoing it does not appear to the court that plaintiff's have shown clearly that the ordinance of May 24, 1966 was so unreasonable in authorizing its amendment by mere resolution as to overcome the presumption of its validity. However, even if such presumption were overcome, the court is of the opinion that the matter is rendered moot by the subsequent passage of the ordinance of May 1, 1969.

The May 1, 1969 ordinance specifically provides that in urban renewal or neighborhood development areas in the City of Passaic, legally adopted urban renewal or neighborhood development plans “shall apply and shall take precedence over any standards and controls in this Zoning Ordinance.” It then goes on to establish that “all ordinances or parts of ordinances inconsistent herewith are hereby repealed.” It is the opinion of the court that this ordinance effectively placed into operation with the proper formality the plan as it then existed after it had been amended by the City of Passaic Redevelopment Agency. Such apparently was the intention of the board of commissioners in passing the ordinance of May 1, 1969, since that action followed the institution of the first complaint herein, attacking the validity of the variance.

However, we must still consider plaintiff’s assertion that even if the amendment to the redevelopment plan was properly adopted as regards procedure, it must still fail because it constitutes “spot zoning.”

It has been said that ‘spot zoning’ contravenes the constitutional and statutory principle of zoning by districts in consonance with the character of the lands and structures and use suitability, and uniformity of the use within the division”. 1 Yohley, Zoning Law and Practice § 8-2, at 361 (3rd ed. 1965)

Usually spot zoning cases deal with changes in use rather than relaxations of building and area requirements or on-site parking requirements. However, in cases of use changes it is well established in New Jersey that zone changes which are designed to relieve a property owner from the burden of general regulation and which do not further a comprehensive plan will be stricken as unacceptable “spot zoning.” Borough of Cresskill v. Borough of Dumont, 15 N. J. 238 (1954); Palisades Properties Inc. v. Brunetti, 44 N. J. 117 (1965); Kozesnik v. Montgomery Tp., 24 N. J. 154 (1957).

It does appear to the court that the treatment accorded the property in question would be invalid as spot zoning unless special circumstances pertain by reason of the property being a part of an area found to constitute a blighted area and designated as a redevelopment area under proceedings pursuant to N. J. 8. A. 40:55C-1 et seq. In order to determine this question, a careful scrutiny of that legislation is required.

N. J. S. A. 40 :55C-1 et seq. is designated as the Redevelopment Agencies Law. In its declaration of policy, N. J. S. A. 40:55C-2 states that blighted areas exist in many areas of the State, and that such areas are “harmful to the physical, social and economic well-being of the community.” It then declares it to be the policy of the State to promote public welfare by creating redevelopment agencies “for the public purposes of acquiring and replanning such areas and of holding, redeveloping or disposing of them in such manner that they shall become available for economically and socially sound development by private or public enterprise or a combination of both.”

N. J. S. A. 40:55C-29 provides that the powers enumerated by the act “shall be interpreted broadly to effectuate the purposes thereof,” and N. J. S. A. 40:550-34 vests municipalities with authority "to do any and all things necessary to aid and co-operate in the planning and undertahing of a redevelopment project” (emphasis supplied).

The transcript of the hearing before the Passaic Board of Adjustment on the application of Taberon Corporation for a variance contains informative background information. It discloses that the chairman of the Passaic Redevelopment Agency, Joseph M. Goldstein, testified that the Redevelopment Agency made a unanimous decision that the type of office building under consideration would be “the most beneficial type of building.” He further testified that after public advertising and letters to developers, only three developers submitted bids and that only two of the three were interested in the type of project deemed most beneficial by the Agency.

The transcript also reveals that the vice-chairman of the Redevelopment Agency, Ronald W. Giaconia, testified as follows :

Q Well, how do you account for the fact that you recommended this even though there was no such parking?
A Well, this particular site is within the boundaries of the design of downtown Passaic. Within that plan the Redevelopment Agency has provided in its urban renewal plan parking at four different parking areas, additional parking along the mall and making parking available to the City for the construction of parking garage.

Although the court does not hold that N. J. S. A. 40:55C-1 et seq. repeals the zoning statutes of New Jersey, it does recognize that the action of the municipal government in amending its own zoning ordinance must be read within the contest of N. J. S. A. 40:55C-1 et seq. as to property within an area that has been declared as blighted and designated a redevelopment area.

In 1 Yokley, Zoning Law and Practice, supra, at 360, we find the following:

There is a clear cut distinction between a validly enacted amendatory zoning ordinance and a spot zoning ordinance. Not all amendments which change or alter the character of a youth district fall within the category of spot zoning, as we generally understand the term. In many instances the establishment of a district or zone by way of amendment might appear to be out of harmony with the comprehensive community plan, but the courts will uphold the change where it does no violence to the comprehensive plan as expressed in the general zoning ordinance, but, on the contrary, harmonizes with an orderly growth of a new use for property in the respective locality.

Having carefully considered N. J. S. A. 40:55C-1 et seq. and tbe testimony of the chairman and vice-chairman of the Redevelopment Agency before the local board of adjustment, it appears to the court that the action of the City of Passaic is valid in light of all the circumstances. In Wilson v. City of Long Branch, 27 N. J. 360 (1958) the court stated:

Community redevelopment is a modern facet of municipal government. Soundly planned redevelopment can make the difference between continued stagnation and decline and resurgence of healthy growth. It provides the means of removing the decadent effect of slums and blight on neighboring property values, of opening up new areas for residence and industry. In recent years, recognition has grown that governing bodies must either plan for the development or redevelopment of urban areas or permit them to become more congested, deteriorated, obsolescent, unhealthy, stagnant, inefficient and costly. As a result at least 38 states now have remedial legislation similar to that of New Jersey, [at 3703

In view of the foregoing, the motion of defendants for a summary judgment is hereby granted.


author: Abtaserse, A. J. S. C.

text:
    HOUSING AUTHORITY OF THE CITY OF HOBOKEN, NEW JERSEY, A BODY CORPORATE AND POLITIC OF THE STATE OF NEW JERSEY, PLAINTIFF, v. MIRIAM KRAMER SEGAL, AND GEZA SEGAL, HER HUSBAND; AND THE MAYOR AND COUNCIL OF THE CITY OF HOBOKEN, NEW JERSEY, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, DEFENDANTS. HOUSING AUTHORITY OF THE CITY OF HOBOKEN, NEW JERSEY, A BODY CORPORATE AND POLITIC OF THE STATE OF NEW JERSEY, PLAINTIFF, v. MIRIAM KRAMER SEGAL, AND GEZA SEGAL, HER HUSBAND; AND THE MAYOR AND COUNCIL OF THE CITY OF HOBOKEN, NEW JERSEY, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, DEFENDANTS.
    Superior Court of New Jersey Law Division
    Decided November 20, 1969.

      Mr. Samuel J. Davidson appeared for plaintiff Housing Authority of the City of Hoboken.

      Mr. Michael A. Cerreto appeared for defendants Miriam Kramer Segal and Geza Segal, her husband (Mr. Leo Bosenblum, attorney).
   Abtaserse, A. J. S. C.

The Housing Authority of Hoboken appealed from the awards made by the duly appointed condemnation commissioners. The question of the value of the various parcels of property was submitted to the jury and it returned four separate verdicts, one for each of the parcels involved. This court then proceeded to compute and award interest on each of the verdicts. State By & Through v. Nordstrom, 54 N. J. 50 (1969). Partial final judgments thereon have been entered in each cause of action.

Counsel for the property owners also sought to have the Housing Authority assume the taxes assessed on these parcels, from the declaration of blight on September 20, 1967. Responsibility for the payment of such taxes u nder the circumstances is the issue to be resolved. Both sides submitted briefs and waived oral argument.

Evidence adduced at the trial indicated that the Housing Authority’s appraiser examined the subject properties several years prior to the declaration of blight for the purpose of evaluation, specifically in 1964 and again in 1965 and in 1966. It was also shown that the owners wore made aware of the intended condemnation in 1964 and that the project was imminent. Evidence further indicated that at various times since 1962 articles had appeared in local newspapers indicating that the area in which the subject properties were located was being considered for a project. On September 20, 1967 the City of Hoboken declared the area in which the said parcels were located to be a “blighted area.” The complaint herein was filed on October 14, 1968, and a declaration of taking and deposit into court was made on April 17, 1969.

The present case appears to be one of first instance in New Jersey. Our State Constitution guarantees that a property owner shall receive just compensation when his property is taken by eminent domain. N. J. Const,., Art. I, par. 20. At the trial of these appeals defendant owners contended that because the taking of the premises by the Housing Authority was imminent, they were unable to rent the subject buildings. Pursuant to R. 4:39-2 the court submitted to the jury a specific interrogatory on this question and the jury found this to be a fact. The jury thus decided that for all intents and purposes the subject properties were rendered incapable of producing any income and profit for the property owner by the imminent action of the Housing Authority. This determination by the jury was a finding of a constructive taking or appropriation of the properties by the Housing Authority as of September 20, 1967. Despite the fact that counsel for the Housing Authority now contends that this issue was barred by the pretrial order, nontheless, it was litigated at trial and the pretrial order should thereby be amended accordingly. R. 4:9-2.

In In re Elmwood Park Project, Section I, Group B, 376 Mich. 311, 136 N. W. 2d 896 (Sup. Ct. 1965) the date of taking by the condemning authority was in dispute. After determining that this was a question of fact to be determined by the jury, the court further stated that the property owner would be entitled to all expenses from the date of taking, such as water, light, insurance and taxes less credit for the rents received.

In re Mayor, etc. of City of New York, 40 App. Div. 281, 58 N. Y. S. 58 (App. Div. 1899), was a condemnation case factually similar to those before the court herein. In that case the appropriation of the property occurred more than four years before the final award was made and the court said:

* * * It is equally clear that, at the time of the actual appropriation of the property by the city, the owners were entitled to be relieved of all burdens incident to their ownership. Certainly it would not be “just compensation” to take a man’s land, and compel him to pay the taxes and assessments thereafter levied on the property, while at the same time withholding the purchase price. * * *. Upon the city’s theory, therefore, the owner must not alone be deprived of the unrestricted use of his property and of the ad interim use of his money, but he must also be compelled to pay for its police protection, and for public improvements charged against it as a benefit, during all the period of delay, for which he is in no way responsible, and which he is powerless to shorten. It will be seen that, if this theory be correct, the owner’s award would be constantly diminished by each year’s delay, until, if the period were long enough, it would be entirely wiped out. It can hardly be contended that a theory which, logically followed out, would under any possible circumstances produce such a result, affords a satisfactory basis for an award of “just compensation.” [58 N. T. S., at 61]

The law and logic of In re Mayor, etc. of City of New York, supra, was cited with approval in In re Mayor, etc. of the City of New York, 59 App. Div. 603, 69 N. Y. S. 742 (App. Div. 1901), affirmed 167 N. Y. 627, 60 N. E. 1116 (New York Ct. of App. 1901). The court said:

“* * *. We conceive the proper ride in this case to be that interest and taxes are to be added to the award, but as an offset a deduction may be made of rentals actually received by the owner, or, where rentals have not been received, of the value of the use and occupation of the premises from the date of the appropriation of the property to the time of the award. As these subjects of deduction are in the nature of offsets, we are of the opinion that the burden is upon the city to show what amounts should be allowed by way of deduction. * * [69 N. Y. at 744]

See also Annotation, "Taxes—Eminent Domain”, 45 A. L. R. 2d 522, 538, 539 (1956); Buckout v. City of New York, 176 N. Y. 363, 68 N. E. 659 (Ct. App. 1903); Westchester County v. Miller, 152 Misc. 104, 273 N. Y. S. 930 (Sup. Ct. 1934); Fishel v. City and County of Denver, 106 Col. 576, 108 p. 2d, 236 (Sup. Ct. 1940); Public Utility Dist. No. I of Douglas County v. Washington Water Power Co., 20 Wash. 2d 384, 147 p. 2d 923 (Sup. Ct. 1944). In the present cases, the premises were boarded up and the owners did not have any use and occupation of the same, at least since the declaration of blight on September 20, 1967.

This court determines that the proper and just rule to be applied is that which is stated in the cases cited, supra. The property owner is entitled to just compensation for the property taken by the condemning authority. The jury has determined that the subject properties were unoccupied and remained so because of the immineney of the condemnation action by the Authority. In effect, the jury determined that the property was taken by the Housing Authority as of the date of the declaration of blight. It would be inequitable to allow a condemning authoritj7 by its action or inaction and by the immineney of its future actions to render property virtually useless to its owner in the sense that it can no longer produce rent or profit, and at the same time compel the owner to pay the taxes levied against said property.

Accordingly, this court determines that plaintiff Housing Authority of Hoboken is responsible for the payment of taxes assessed against said properties from September 20, 1967. Inasmuch as the owners have paid part of said taxes, they shall be reimbursed for the same plus interest at 6 per cent from the date of payment to the date of entry of the judgment herein.

If the parties cannot agree on the amounts of said taxes and interest thereon, the court will determine same upon application.