author: Miftz, J. S. C.'

text:
    JAMES JENNINGS, HERMAN VERTORANO AND JAMES LONERGAN, INDIVIDUALLY AND ON BEHALF OF ALL EMPOYEES OF M & M TRANSPORTATION COMPANY SIMILARLY SITUATED, AS A CLASS, PLAINTIFFS, v. M & M TRANSPORTATION COMPANY, A CORPORATION AUTHORIZED TO DO BUSINESS IN NEW JERSEY, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, AN UNINCORPORATED LABOR ORGANIZATION, AND TRUCK DRIVERS AND CHAUFFEURS UNION LOCAL NO. 478, AFFILIATED WITH THE I. B. OF T., C., W., & H. OF A., AN UNINCORPORATED LABOR ORGANIZATION, DEFENDANTS.
    Superior Court of New Jersey Chancery Division
    Decided January 27, 1969.

      Mr. John A. Craner for plaintiffs (Messrs. Craner and Brennan, attorneys).

      Mr. Herbert New and Mr. Arthur Liberstein of the New York Bar for defendant M & M Transportation Company (Messrs. Brenner, New & Brenner and Mr. Herbert Bur-stein of the New York Bar, attorneys).

      Mr. Edward A. Cohen and Mr. Florian Bartosic of the Washington, D. C. Bar for defendant International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (Messrs. Becherman and Franzblau and Mr. David A. Previani of the Wisconsin Bar, attorneys).

      Mr. Thomas L. Parsonnet for defendant Truck Drivers and Chauffeurs Union Local 478 (Messrs. Parsonnet, Par-sonnet £ Duggan, attorneys).
   Miftz, J. S. C.'

Plaintiffs are employees of defendant M & M Transportation Company (hereinafter M & M) and also members of defendant Truck Drivers and Chauffeurs Union Local No. 478 (hereinafter Local 478). They have instituted this action to specifically enforce section 1(e) (1) of their collective bargaining agreement as interpreted by an arbitrator’s award. In effect, thejr seek confirmation of the arbitration award. They bring this action pursuant to section 301 of the Labor-Management Relations Act, 1947. 29 U. S. O. A. § 185.

Initially, plaintiffs contended that Local 178 had violated its duty of fair representation owed them, thereby entitling them to maintain this action under the doctrine of Vaca v. Sipes, 386 U. S. 171, 87 S. Ct. 903, 17 L. Ed. 2d 842 (1967). Since Local 478 has adopted the position of plaintiffs and cross-claims for the same relief, the issue as to whether it did in fact violate its duty of fair representation, thus giving plaintiffs standing to sue, is rendered moot.

The International Brotherhood of: Teamsters, Chauffeurs, Warehousemen and Helpers of America (hereinafter International), comprising several hundred affiliated subordinate bodies, is governed by the provisions of the International constitution. Local 478 of Newark, New Jersey, and Local 773 of Allentown, Pennsylvania are local muons affiliated with and controlled by the International constitution. Local 478 and Local 773 have separate work contracts with defendant employer M & M, a motor carrier which maintains terminals at Newark, New Jersey, and Allentown, Pennsylvania, and which is engaged in the transportation of property in interstate commerce.

Local 773 and M & M are parties to the 1964-1967 and 1967—1970 National Master Freight Agreement aud to the Central Pennsylvania Over-The-Road Motor Freight Supplemental Agreement which cover a multi-union, multi-employer bargaining unit. When M & M opened its Allentown Terminal in 1962, members of Local 773 were assigned deliveries and/or pickups for M & M in New Jersey west of Route 206. Local 773 had been performing such work in New Jersey for other employers for over 25 years.

Local 478 and M & M were parties to a 1964-1967 collective bargaining agreement which, in part, sets out those areas in which Local 478 would perform company work. In 1967 Local 478 allegedly learned for the first time that Local 773 liad been making deliveries and/or pickups in New Jersey west of Route 206. Thereupon Local 478 filed a grievance with M & M which was processed to arbitration under section 16 of the Local 478—M & M contract. Local 478 and its employer, M & M, were the only parties who appeared before the arbitrator, Daniel House. The precise issue presented was:

“Is the Employer violating the Agreement by making deliveries and/or pickups in certain New Jersey points through Employer’s Allentown terminal? If so, what shall be the remedy?”

The arbitration award, rendered July 7, 1967, held that M & M was in violation of its 196'4r-1967 collective bargaining agreement with Local 478 by permitting its Allentown Terminal employees to make deliveries and/or pickups in New Jersey in the area in which Local 478, by contract, was entitled to the work. Significantly, the arbitrator made the following further conclusion in his opinion and award:

"Dispute Between Local 478 and Local 773?

It is possible that the events involved in this casé or events following the Arbitrator’s Award in this case could lead to a jurisdictional dispute; but no such dispute is before the Arbitrator here. The only dispute before the Arbitrator in this case is the alleged contract violation spelled out in the submission agreement recited at the beginning of this Opinion. The Arbitrator has the authority and the obligation under the terms of the current Agreement between the parties to decide that dispute.”

Following the rendition of the award Local 773, pursuant to article XII, section 12 of the International constitution, properly filed a jurisdictional dispute claim with the general executive board of International, asserting that past practice dictated that Local 773 was entitled to the work assignment in dispute. Article XII, section 12 of the International constitution expressly provides that where two or more local unions are in dispute concerning jurisdiction, there shall be no work stoppage of the involved operation but such controversy shall be submitted to International for determination. A complete hearing was held by International with both Local 478 and Local 773 participating. The employer, M & M, though not a party to such proceeding, indicated its willingness to be bound by whatever decision was forthcoming.

On January 2(5, 1968 the general executive board of International adopted the recommendations of the hearing panel and held that Local 773 was entitled to perform the work in question. M & M, which had previously adhered to the arbitrator’s award by assigning only employees of Local 478 to the disputed work, now reversed this practice, affirmed its prior statement to be bound by International’s determination, and reassigned the work to Local 773.. On February 19, 1968 plaintiffs instituted the present action.

The 1964-1967 contract, between Local 478 and M & M expired on August 31, 1967, over a month after the arbitrator’s award was promulgated and prior to the conflicting-jurisdictional determination by International. Local 478 subsequently became a party to the 1967-1970 National Master Freight Agreement and the New York-New Jersey Supplement. After the decision by International and the institution of this suit, Local 478 entered into the 1967-1970 rider to that agreement which contained language identical to section 1(c) (1) of the original contract. Plaintiffs argued that Local 478 relied upon arbitrator House’s interpretation of section 1(c) (1) when it entered into the rider agreement, but no testimony was offered in support of same. International asserted that Local 478 and M & M negotiated the rider agreement with full knowledge of the jurisdictional award and that such award became an implied term of the contract, or at the very least precluded Local 478 from negotiating any contractual provision in conflict with the jurisdictional award. However, it appears that in executing the rider agreement Local 478 did not intend to be bound by the jurisdictional award. The fact that the rider agreement using the identical language contained in the earlier agreement was executed after the institution of this suit is not persuasive in resolving the issues presented in this litigation.

It was urged that Local 773 is an indispensable party to this proceeding, and not having been joined, the action should be dismissed. Whether a party is indispensable depends upon the circumstances of the particular case. As a general proposition, a party is not truly indispensable unless he has an interest inevitably involved in the subject matter before the court and a judgment cannot justly be made between the litigants without either adjudging or necessarily affecting the absentee’s interest. Allen B. Du Mont Labs, Inc. v. Marcalus Mfg. Co., 30 N. J. 290, 298 (1959). The nature and character of the claim in an action determines the identity and classification of the parties as necessary or indispensable. Insurance Company of North America v. Allied Crude Vegetable Oil Refining Corp., 89 N. J. Super. 518 (Ch. Div. 1965). The gravamen of plaintiffs’ suit and that of the cross-claimant, Local 478, is to specifically enforce a provision in a collective bargaining agreement as interpreted by the arbitrator’s award. As already stated, they in effect seek confirmation of that award.

Local 773 was not a party to that collective bargaining agreement nor was it a party to the arbitration proceeding. It is, of course, interested in the outcome of this litigation. However, as already noted, the arbitrator expressly refrained from considering the possible jurisdictional dispute between Local 478 and Local 773 that did in fact follow his award. Consequently, his award did not purport to..be a final adjudication of Local 773’s conflicting claim. In this view, Local 773 is not an indispensable party in this proceeding.

It was further asserted that N. J. S. A. 2A :24-7 provides that a party to an arbitration award may within three months after the. award is delivered to him commence a summary action for the confirmation of the award. In the instant case the arbitrator’s award was rendered on July 7, 1967, but the complaint was not filed until February 19, 1968. Hence, it was urged that this proceeding is untimely and is barred by the cited statute.

A state’s statute of limitations may, in proper circumstances, govern the timeliness of federal causes of action. In International Union, United Auto, Aerospace and Agr. Implement Workers of America (UAW) AFL-CIO v. Hoosier Cardinal Corporation, 383 U. S. 696, 704, 705, 86 S. Ct. 1107, 16 L. Ed. 2d 192 (1966), the court stated that “since no federal provision governs, we hold that the timeliness of a § 301 suit, such as the present one, is to be determined, as a matter of federal law, by reference to the appropriate state statute of limitations.” However, as already noted, following the rendition of the arbitration award on July 7, 1967, M & M adhered to that award and assigned the work to members of Local 478. It was not until International rendered its jurisdictional award on January 26, 1968 that M & M reversed its position and reassigned the work to Local 773. A party may be estopped from pleading the statute of limitations if by his conduct it would be inequitable to permit him to do so. Bowler v. Fidelity & Casualty Co. of New York, 99 N. J. Super. 184 (App. Div. 1968). Clearly, Local 478 was lulled into the view that confirmation would not be required. Assuming, arguendo, the applicability of the three-month period prescribed by N. J. S. A. 2A :24-7, M & M is estopped from invoking that time limitation.

There is no merit to plaintiffs’ argument that article XII, section 12 of the International constitution does not apply to disputes over work assignment but only to controversies concerning representation — that is, which union should represent the employees doing particular work. In support of their contention plaintiffs relied upon article XII, section 12 of the International constitution, which, among other things, provides that “Every member of a Local Union, as a condition of becoming and remaining a member, acknowledges the right of the General Executive Board, in resolving a jurisdictional dispute, to transfer him from one Local Union to another.” This sentence in the article is, however, preceded by the broad provision that where two or more local unions are in dispute concerning jurisdiction, the controversy shall be submitted to International for determination. The evidence indicates that work assignment issues have in the past been the subject of several jurisdictional disputes heard by International, and that at least in one instance Local 478 initiated such a jurisdictional claim. I am satisfied that article XII, section 12 of the International constitution applies to work assignment as well as representation disputes.

Local 478 contended that the dispute is not over whether the work involved should be performed by Local 478 employees or whether Local 478 or Local 773 had “jurisdiction” over the work. It stressed that the dispute concerned the obligation of M & M on its contract with Local 478 and as such M & M is required to allocate its work through the Newark Terminal pursuant to the arbitration award. The' fact that Local 478 employees would be assigned the work is an incidental and resulting effect of the arbitrator’s award. Hence, no jurisdictional issue is involved. This is not so. Although the arbitrator determined that the employer shall assign the work to its employees who are covered by the Local 478-M & M agreement, he clearly indicated that he was limited to an interpretation of that contract. He did not have before him the Local 773-M & M contract which also contained a work allocation clause, and therefore he expressly refrained from passing upon the potential jurisdictional dispute that actually ensued between Locals 478 and 773. It is in light of the subsequent jurisdictional dispute and award that this case is to be resolved.

As this is a suit under section 301 of the Labor-Management Relations Act, this court has concurrent jurisdiction with the federal District Court. Charles Dowd Box Co. v. Courtney, 368 U. S. 502, 82 S. Ct. 519, 7 L. Ed. 2d 483 (1962). In these cases the state courts must apply federal substantive law, which is to be fashioned from the policies of our national labor laws. Textile Workers Union of America v. Lincoln Mills of Alabama, 353 U. S. 448, 77 S. Ct. 912, 1 L. Ed. 2d 972 (1957); Local 174 Teamsters, etc., of America v. Lucas Flour Co., 369 U. S. 95, 82 S. Ct. 571, 7 L. Ed. 2d 593 (1962). However, state principles of law compatible with federal labor law may be employed in order to find the rule that will best effectuate the federal policy. Textile Workers Union of America v. Lincoln Mills of Alabama, supra.

The Labor-Management Relations Act (29 U. S. C. A. § 141 et seq.) encourages the voluntary adjustment of labor disputes by methods agreed upon by the parties. Its purpose, in part, is “to provide additional facilities for the mediation of labor disputes affecting commerce.” Section 201 of that act promulgates our national labor policy favoring the settlement of industrial grievances through the processes of “conference and collective bargaining or by such methods as may be provided for in any applicable agreement for the settlement of disputes.” It states that, when necessary, governmental facilities for conciliation, mediation and voluntary arbitration will be made available to aid the parties. Section 203 (d) provides:

“Final adjustment by a method agreed upon by the parties is hereby declared to be the desirable method for settlement of grievance disputes arising over the application or interpretation of an existing collective-bargaining agreement. * :i *”

This overriding policy is also found in the National Labor Relations Act, 61 Slat. 136, 73 8tat. 519, 29 U. S. C. § 151 et seq. in sections 8(b) (4) (D) and 10 (k) which are concerned with the resolution of jurisdictional disputes by the National Labor Relations Board.

“The legislative history of the Act shows that in enacting sections 8(b) (4) (D) and 10(k), Congress had three broad objectives in view. These were (1) to encourage settlement of jurisdictional differences without Governmental intervention; (2) to empower this Board to determine disputes not resolved by private arbitration, and thus avoid complaint proceedings; and (3) to outlaw jurisdictional strikes in the interest of neutral employers and the public.” Local US, Latherers’ International Union (Newark and Essex Plastering Co.), 121 NLRB 1094, 1108 (1958).

Significantly, the National Labor Relations Act does not purport to cover all phases and stages of a work assignment controversy.

“While §8(b) (4) (D) makes it an unfair labor practice for a union to strike to get an employer to assign work to a particular group of employees rather than to another, the Act does not deal with the controversy anterior to a strike nor provide any machinery for resolving such a dispute absent a strike. The Act and its remedies for jurisdictional controversies of that nature come into play only by a strike or threat of a strike. Such conduct gives the Board authority under section 10(k) to resolve the dispute.” Carey v. Westinghouse Electric Corp., 375 U. S. 261, 263, 264, 84 S. Ct. 401, 11 L. Ed. 2d 320 (1964).

However, in the instant case, there is no violation of section 8(b)(4)(D), and therefore the National Labor Relations Board is without jurisdiction to hear the jurisdictional dispute at this time.

In seeking to resolve this dispute, this court must balance two important and necessary national labor policies concerned with the just and final resolution of industrial grievances by means voluntarily selected by the parties. On the one hand there is the noted preference for final and binding arbitration. As promulgated by the United States Supreme Court in the Steelworker’s Trilogy (United Steelworkers of America v. American Mfg. Co., 363 U. S. 564, 80 S. Ct. 1343, 4 L. Ed. 2d 1403 (1960); United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U. S. 574, 80 S. Ct. 1347, 4 L. Ed. 2d 1409 (1960), and United Steel workers of America v. Enterprise Wheel and Car Corp., 363 U. S. 593, 80 S. Ct. 1358, 4 L. Ed. 2d 1424 (1960)), arbitration is the keystone of our national labor policy. This means of voluntarily adjusting work disputes without resort either to self-help or to court proceedings has been inserted in many labor-management contracts as the quid pro quo for a no-striko provision. Unless the arbitration award is given full play, the arbitration procedure will be rendered meaningless.

Counterbalancing the aforementioned national labor policy favoring the enforcement of an arbitrator’s award, is the equally important national labor policy which encourages the establishment of internal union machinery for the voluntary adjustment of intra-union differences. By International keeping its own house in order, many disputes can be rapidly and finally resolved before they affect industry and the public. Thus, where action is taken by an international union pursuant to its voluntary adjustment procedure, this court should respect its findings where, as here, the resolution is fair, binding and complete. Courts of this State will not review the merits of an international union’s interpretation and application of its constitutional provisions, ox the decision rendered pursuant thereto, solely because the court may be inclined to decide otherwise. Barnhart v. United Automobile, etc., Local 669, 12 N. J. Super. 147 (App. Div. 1951).

Both Local 478 and Local 773 argued their respective causes before International. The opinion and award of the arbitrator was submitted in evidence, and the employer, M & M, stated that it would acquiesce in International’s determination. It is of no moment that M & M was neither a party to the International constitution nor was it a party to the jurisdictional dispute. M & M does not contest the jurisdictional award. It is challenged only by plaintiffs and Local 478, who are plainly bound by the determination of the general executive board.

As important as arbitration is to the settlement of industrial grievances, unless it is a final resolution of the entire controversy and binding upon all the parties in the dispute, it merely serves to fragment rather than to resolve the dispute. Arbitration involving the employer and only one of two local unions in a jurisdictional dispute over a work assignment may resolve the dispute when the award is in favor of the employer who contends that the local union is not entitled to the work involved. Such an award disposes of the contractual claim of the union for the disputed work assignment. In light of the possibility that the jurisdictional claim could be terminated in arbitration involving only one of the disputant local unions, the court in Carey v. Westinghouse, supra, 375 U. S., at pp. 265, 266, 84 S. Ct., at pp. 405, 406 ordered the employer to arbitrate but emphasized in doing so that “unless the other union intervenes an adjudication of the arbiter might not put an end to the dispute.” It further noted that arbitration is just “one method of settling disputes over work assignments.” As a matter of fact, the arbitration did not end the dispute. The other union did not intervene and the matter subsequently came before the National Labor Relations Board. Westinghouse Elec. Corp., 162 NLRB 81, 64 LRRM 1082 (1967). The Board, although giving consideration to the arbitrator’s award, did not consider it binding upon the union which was not a party to the arbitration proceeding, and rejected the award. See also New Orleans Typographical Union, 56 LRRM 1169 (1964); New York Mailers Union No. Six (New York Times Co.), 68 LRRM 1180 (1968) Just as the national Labor Relations Board is not bound by^ a prior arbitration award interpreting the contract of only one union with an employer also having a contract with another union, neither is such an award binding upon International, the agreed-upon forum for the resolution of jurisdictional disputes, nor upon this court.

In the present case the arbitrator’s award in favor of Local 478 did not purport to adjudicate the subsequent jurisdictional dispute that actually ensued between Local 478 and Local 773. Although section 301(a) of the Labor-Management Relations Act empowers the courts to grant specific performance of awards resulting from the arbitration of union-employer disputes under arbitration procedures established by a collective bargaining agreement between the parties, General Drivers Union, etc., Local Union No. 89, v. Riss and Company, Inc., 372 U. S. 517, 83 S. Ct. 789, 9 L. Ed. 2d 918 (1963), no useful purpose would be served now by confirming and enforcing this award. The two local unions contractually agreed to a resolution of their jurisdictional dispute by the general executive board of International. Local Union No. 14 of United Ass’n of Journeymen and Apprentices of Plumbing and Pipefitting Industry of United States and Canada v. United Ass’n of Journeymen, etc., 61 N. J. Super 228, 241 (App. Div. 1960). Its jurisdictional award, although inconsistent with the earlier arbitration award, is the controlling award that will terminate the litigation. No affirmative relief is sought by International or M & M, and none is necessary because the employer has reassigned the disputed work to Local 773 consonant with the jurisdictional award. Accordingly, the relief sought in the complaint and cross-claim of Local 478 will be denied.


source: Caselaw Access Project

author: Labkeb, J. S. C.

license: Public Domain

text:
    ESSEX COUNTY WELFARE BOARD, A CORPORATE ENTITY OF NEW JERSEY, PLAINTIFF, v. DORIS PHILPOTT, WILLIAM WILKES, AND FIDELITY UNION TRUST COMPANY, DEFENDANTS.
    Essex County Court Law Division
    Decided January 20, 1969.

      Mr. Felix A. Martino for plaintiff {Mr. John A. Matthews, Jr., attorney).

      Mr. George Charles Bruno, of the District of Columbia Bar, appearing pro hac vice, for defendants, Doris Philpott and William Wilkes {Mr. Michael P. Ambrosio, Newark Legal Services Project, attorney).
   Labkeb, J. S. C.

This matter came before the court on an order to show cause why a judgment should not be entered in favor of plaintiff Essex County Welfare Board (board) directing the Fidelity Union Trust Company to turn over to it moneys on deposit in the bank in the name of Doris Philpott. To eliminate procedural pitfalls, the parties submitted a stipulation of facts and consented that the court determine the matter as if on final hearing based upon those facts.

On August 2, 1966 defendant Wilkes, applied to the Essex County Welfare Board for financial assistance under the state program for total disability assistance. N. J. S. A. 44:7-38 et seq. As a condition for said assistance defendant executed a reimbursement agreement in accordance with the provisions of N. J. S. A. 44:7-14 whereby he promised to reimburse the board for all advances made to him and agreed that the filing of the reimbursement agreement would have the same force and effect as a judgment. The agreement and the statute also provide that defendant pledges as security for such reimbursement all of his real and personal property. N. J. S. A. 44:7-14.

Wilkes was then referred by the board to the federal Social Security Administration to apply for disability insurance benefits under 42 U. 8. C., c. 7. As a result he received a check on August 20, 1968 from the Social Security Administration in the sum of $1,864.20 as a retroactive award for disability benefits. By that time the board had advanced to defendant the total sum of $2,082.

Upon receipt of the Social Security check Wilkes deposited the same in the Fidelity Union Trust Company in an account in the name of defendant Doris Philpott. He admits, however, that the money is held in trust for him and that she has no proprietary interest in the account. Plaintiff seeks reimbursement from the moneys on deposit in the bank.

Wilkes contends that plaintiff is not entitled to reimbursement from this fund for several reasons, basing his argument mainly on the following: the federal statute underlying the Social Security payment, 42 U. S. C., § 407, 49 Stat. 624 (1939), prohibits transfer or assignment of any future payments under the act and provides that none of the monies paid or payable are subject to execution, levy, attachment, garnishment or other legal process, and (2) the Congressional policy underlying the Social Security program preempts invasion of its benefits by all creditors of the recipient, including the Essex County Welfare Board, despite the reimbursement provisions of the agreement and the applicable New Jersey statutes. In addition, defendant attacked the validity of the required reimbursement agreement on constitutional grounds, but the recent United States Supreme Court opinion of Snell v. Wyman, 393 U. S. 323, 89 S. Ct. 553, 21 L. Ed. 2d 511, January 13, 1969, affirming 281 F. Supp. 853 (S. D. N. Y. 1968), is dispositive of this issue contrary to defendant’s position.

The pertinent federal statute, 42 U. S. C., § 407, reads:

“The right of any person to any future payment under this sub-chapter shall not be transferable or assignable, at law or in equity, and none of the moneys paid or payable or rights existing under this subchapter shall be subject to execution, levy, attachment, garnishment, or other legal process, or to the operation of any bankruptcy or insolvency law.”

The act covers two sets of circumstances. It prohibits the transfer or assignment of any future payments thereunder and exempts the moneys “paid or payable” from reach of creditors through legal process. If plaintiff: were an ordinary creditor seeking to levy on the lump sum fund received from the Social Security Administration, the statute by its terms would bar such process. The fund would be exempt from creditors even though its form had been converted from a check payable to defendant to a bank account belonging to him. See Lawrence v. Shaw, 300 U. S. 245, 250, 57 S. Ct. 443, 81 L. Ed. 623 (1937), and Porter v. Aetna Casualty & Surety Co., 370 U. S. 159, 162, 82 S. Ct. 1231, 8 L. Ed. 2d 407 (1962), as to parallel construction of Veterans Administration Act.

The intent of Congress is clear, namely, to protect the recipient from the attack of creditors before and after the moneys are paid, and to permit him or his dependents to obtain the necessities of life. As long as the fund is not converted to a permanent investment, its mere deposit in a bank for use by the recipient does not expose it to attachment or levy by creditors. Lawrence, supra; Porter, supra; Century Indemnity v. Mead, 121 Vt. 434, 159 A. 2d 325, 328 (Vt. Sup. Ct. 1960). Cf. Carrier v. Bryant, 306 U. S. 545, 59 S. Ct. 707, 83 L. Ed. 976 (1939).

Hence, the remaining issue is whether the welfare board is in the category of a creditor so as to be deprived of reimbursement from the federal funds. A perusal of Title 44 of the New Jersey Revised Statutes, and particularly N. J. S. A. 44:7—14, leads to the conclusion that -moneys paid by county welfare boards are loans or advances and are not outright gifts to the poor. The Legislature determined as a matter of policy that such welfare payments may only be made upon condition that the recipient execute a reimbursement agreement. In many cases, of course, these agreements do not serve any practical purpose because of the absence of assets on the part of most recipients. Nevertheless, the ability to recoup money in some instances serves the social purpose of adding those moneys to the totality of the funds available for assistance to the needy. Such a legislative purpose is laudable and serves the welfare of the greatest number of indigents in the community.

In any event, as a result of the reimbursement agreement and the underlying statute, the county welfare board became a creditor of Wilkes to the extent of the moneys advanced under the program. As such a creditor, it would be subject to the limitations placed upon creditors by the foregoing exemption in the federal statute in the absence of any countervailing provision or policy. And since the New Jersey statute granting reimbursement to county welfare boards is in real conflict with the federal statute, it must yield thereto so as to afford exemption of the Social Security benefits. U. S. Const., Art. VI, cl. 2; Sola Electric Co. v. Jefferson Electric Co., 317 U. S. 173, 63 S. Ct. 172, 87 L. Ed. 165 (1942); Hill v. State of Florida ex rel. Watson, 325 U. S. 538, 65 S. Ct. 1373, 89 L. Ed. 1782 (1945).

The board contends, however, that it is in a unique position and that its status is outside the scope of the class of creditors contemplated by Congress in adopting 42 U. S. C., § 407. It bases its contention on a dichotomy between “voluntary” and “involuntary” creditors, as articulated by the Court of Appeals of the District of Columbia Circuit in Savoid v. District of Columbia, 110 U. S. App. D. C. 39, 288 F. 2d 851 (1964), when dealing with a similar exemption provision in the Veterans Administration Act. The court in that case held that the District of Columbia was not barred by the exemption statute from recovery by way of reimbursement from Veterans Administration benefits paid to an incompetent and in the hands of his representative. The court concluded that the District as a governmental instrumentality was not a “voluntary” creditor in the ordinary sense and was therefore not within the class of creditors contemplated by Congress in the exemption provision of the statute. By this distinction, the court undoubtedly meant that inasmuch as the hospital was governmentally owned and the veteran was committed there by court order, the District of Columbia did not voluntarily extend its facilities and services to the veteran. However, the opinion lacks any rationale underlying the created dichotomy beyond the statement of the judicial conclusion.

Similar results were reached in unreported decisions by the Eederal District Court of New Jersey with regard to veterans’ insurance proceeds, and by the Law Division of the Superior Court of New Jersey in a case involving Social Security benefits. Unfortunately, these opinions also do not attempt to express the basis for the distinction beyond the statement of the conclusion itself, namely, that the public body was not a creditor within the contemplation of Congress in the applicable statute. See also to same effect: State v. Bean, 159 Me. 455, 195 A. 2d 68 (Me. Sup. Jud. Ct. 1963); In re Bemowski’s Guardianship, 3 Wis. 2d 133, 88 N. W. 2d 22 (Wis. Sup. Ct. 1958); Dept. of Public Welfare v. Sevcik, 18 Ill. 2d 449, 164 N. E. 2d 10 (Ill. Sup. Ct. 1960).

In Pennsylvania, recovery was denied the Commonwealth by a trial court in a veteran’s pension case because of the effect of the exemption provision, even though the claimant was the state. Dilijonas Estate, 16 Pa. Dist. & C. O. R. 2d 142 (Orph. Ct. 1958). Cf. Ace Estate, 24 Pa. Dist. & C. O. R. 2d 534 (Orph. Ct. 1960). But see other Pennsylvania trial court decisions: Commonwealth v. Thompson, 22 Pa. Dist. & C. O. R. 2d 236 (C. P. 1960); Commonwealth v. Garlick, 26 Pa. Dist. & C. O. R. 2d 389 (C. P. 1961); Klaric Petition, 27 Pa. Dist. & C. O. R. 2d 93 (Orph. Ct. 1961).

There is, then, no precedent in any reported opinion on this question which is controlling on this court. And the opinions which have refused to enforce the exemption provision of the federal statute are hardly persuasive.

In Thiel v. Thiel, 41 N. J. 446 (1964), plaintiff sought to reach pension funds due her husband from his employer in satisfaction of a support order for herself and her children. The pension agreement underlying the payment of the funds to the employee contained a restrictive provision that no “pension ’ or payment on account of any pension [shall] be subject to attachment, execution or other legal process against the PENSIONER.” 41 N. J., at p. 449 the husband contended that this provision immunized the fund from garnishment by his wife. The Supreme Court held that the limitation in the pension agreement did not apply to a wife seeking to reach the pension funds for support for herself and her children. Justice Schettino supported this conclusion on the basis of the following reasoning:

“Regardless of the precise and restrictive wording of an exemption provision, the restraint created should not be a barrier against recourse to the fund when it provides the only reasonably accessible asset for support of the wife within her state of residence. Cf. Schlaefer v. Schlaefer, 71 App. D. C. 350, 112 F. 2d 177, 130 A. L. R. 1014 (1940). The purpose of exemptions is to relieve the person exempted from the pressure of claims hostile not only to his own essential needs but also to those of his dependents. But the purpose cannot be one of relieving him of familial obligations, perhaps destroying what may be the family’s last and only security, short of public relief. The husband’s duty is to share his pension benefits with his wife, and the courts of the state of her residence, if they have jurisdiction over the fund, ought to enforce that duty when there is no other reasonably practical means of obtaining support open to her within the state. Moreover, if we were to uphold his claim of exemption, we would ‘feed the husband and starve the wife.’ Wetmore v. Wetmore, 149 N. Y. 520, 529, 44 N. E. 169, 171, 33 L. R. A. 708 (Ct. App. 1896).” (at p. 451)

The same philosophy was applied in a marital situation involving a statutory exemption of a public employee’s pension in Fischer v. Fischer, 13 N. J. 162 (1953).

These cases rejecting the immunity provision of a statute or contract when the claim is made by members of the recipient’s family for support are based upon the reasoning that the funds available to the husband were intended not only for his benefit but also for the benefit of his family at a time when his earning power has been reduced or terminated. They are based upon the special circumstance that the claimants seeking to reach the fund are identified with the beneficiary himself, and that the pension in itself was always intended to protect not only the husband but his family as well. Because of this underlying purpose of the pension funds, the courts have refused to enforce the literal words of the exemption provision so as to deprive the family of a means of support and subject its members to the need for public relief.

This line of cases is not apposite to the circumstances involved herein. The welfare board is not an intended beneficiary, directly or indirectly, of the funds generated by the legislative policy underlying the Social Security legislation. It is a third party who asserts a claim against that fund because of its statutory and contractual position as a creditor. It is not identified with the recipient of the fund, as is a wife or children, and it has no paramount right which transcends the expressed policy of the Eederal Government in creating the Social Security Administration. It does not stand in such a position as to impel a court to disregard the clear language of the statute and impose an exception in its favor.

Although the claim of the Essex County Welfare Board serves a valid social purpose in enforcing the policy of repayment espoused by the Yew Jersey Legislature, I am unable to find in the federal statute or the cases interpreting the same any sound basis for concluding that the board is not a creditor subject to the same limitation as other creditors. The distinction made by other courts between “voluntary” and “involuntary” creditors is an artificial one which has no support in the pertinent legislation. There would appear to be no logical basis for treating the board any differently from any other person or organization who advanced moneys to the indigent individual for his personal needs.

As observed by Judge Jayne in Middlesex County Welfare Board v. Motolinsky, 134 N. J. Eq. 323 (Ch. 1944), in considering the right of a welfare board to reimbursement from the proceeds of a life insurance policy:

“The complainant as a municipal body cannot be distinguished from the creditors comprehended by the statute. Equity cannot fashion exceptions which circumvent a statute obviously intended to encircle the rights of all creditors.” (at p. 331)

If a relative or a neighborhood grocer or a charitable institution who advanced funds or credit for the maintenance and support of an individual would be barred from recovery out of the federal funds, why should a welfare board be in any better position ? The mere coincidence that the claimant is a public body cannot dictate a contrary result. In the absence of any exception in the statute demonstrating such an intent, the will of Congress must be enforced.

Judgment will be entered in favor of defendant without costs.


author: Gaulkin, S. J. A. D.

text:
    ROBERT PFLEGER AND MADELINE PFLEGER, PLAINTIFFS, v. THE STATE HIGHWAY DEPARTMENT STATE OF NEW JERSEY, MANZO CONTRACTING CO., A CORPORATION OF NEW JERSEY, PETER JANNERONE, RESIDENT ENGINEER, DEPARTMENT OF TRANSPORTATION STATE OF NEW JERSEY, JOSEPH W. ERTLE, DISTRICT ENGINEER, DEFENDANTS.
    Superior Court of New Jersey Appellate Division
    Submitted August 13, 1968
    Decided August 14, 1968.

      Before Judges Gaulkin, Eoley and Kilkenny.

      Messrs. Drazin, Warshaw, Auerbach cG Rudniclc {Mr. Thomas T. Warshaw, of counsel), filed a brief on behalf of plaintiffs.

      Mr. Arthur J. Sills, Attorney General, by Mr. Philip S. 0archman, Deputy Attorney General, filed a brief on behalf of State Highway Department.
   The opinion of the court was delivered by

Gaulkin, S. J. A. D.

In an action brought in the Superior Court, Chancery Division, plaintiffs sought to enjoin defendants from proceeding with contemplated construction on State Highway 35. Plaintiffs alleged that the State Highway Department had obtained from them a deed for a three-foot strip along the highway upon representations that the elevation of the highway would remain unchanged but that, after the work commenced, it became apparent that the elevation adjacent to plaintiffs’ premises would be increased by some three feet. Plaintiffs alleged that this increase would cause serious flooding of their property and would interfere with access thereto.

Eollowing the Chancery Division’s denial of their application for a preliminary injunction, plaintiffs amended their complaint, by leave of court, to add a prayer for relief in lieu of prerogative writs to compel the Department of Transportation to institute condemnation proceedings to establish the value of the lands allegedly taken. Plaintiffs then made a motion, in which defendants joined, that the action be transferred to the Law Division. Instead, acting under R. R. 1:27D, the court transferred the matter here. Pfleger v. Dept. of Transp., 98 N. J. Super. 386 (Ch. Div. 1967). Plaintiffs and defendants have both moved to remand to the Law Division.

The sole question presented is whether plaintiffs’ action for relief in lieu of prerogative writs, to compel the Department of Transportation to institute proceedings to condemn plaintiffs’ land, should have been brought in the Law Division, under R. R. 4:88-2 or the Appellate Division, under R. R. 4:88-8. We believe the Law Division is the proper forum.

As the Chancery Division recognized, it is clear that the relief sought is obtainable only by proceeding in lieu of prerogative writs under R. R. 4:88. By their terms, R. R. 4:88-2 and R. R. 4:88-8 effect a division of jurisdiction over the hearing of proceedings in lieu of prerogative writs on the basis of the identity of the defendant. Review of the action or inaction of a state administrative agency is to be had in the Appellate Division; review of local administrative agencies in the Law Division. Central R. R. Co. v. Neeld, 26 N. J. 172, 184-185 (1958), certiorari denied 357 U. S. 928, 78 S. Ct. 1373, 2 L. Ed. 2d 1371 (1958); DeNike v. Board of Trustees, etc., Retirement System, 62 N. J. Super. 280, 291 (App. Div. 1960). affirmed 34 N. J. 430 (1961).

However, this line of division is not absolute. Por example, where the authority of a state agency is confined to a single locality, review of its actions is had in the Law Division. Baldwin Construction Co. v. Essex County Board of Taxation, 27 N. J. Super. 240 (App. Div. 1953), reargument 28 N. J. Super. 110 (App. Div. 1953), affirmed 16 N. J. 329 (1954).

A close reading of R. R. 4:88-8 reveals that the Supreme Court did not intend that reviews of actions (or, more accurately, inactions), such as the one presented to us now, were to be had in this court. Condemnation of plaintiffs’ lands cannot be other than by an action in the Superior Court, Law Division. N. J. S. A. 20:1-1 et seq.; N. J. S. A. 27: 7-22. There is no administrative machinery wuthin the Department of Transportation for itself condemning land, for hearing the arguments for and against seeking condemnation in court, or for deciding whether or not a “taking” has been effected by the Department’s actions. N. J. S. A. 27:14-1 et seq. Nor is there a procedure in such eases by which a record may be made before the Department, upon which this court can review its decision.

Yet, the language of B. B. 4:88-8 plainly contemplates that some such hearing take place and a record adduced prior to review by this court. Thus, after directing that appeal here shall be instituted by filing a notice of appeal, B. B. 4:88-8 goes on to require that within 30 days after the service of such notice, “the agency shall file with the Appellate Division the original or a certified copy of the record of the proceedings under review * * *” (emphasis added). “Where a stenographic report of the testimony in the cause has been taken before the agency,” a transcript thereof is .to be furnished us and “made part of the record filed by the agency hereunder.” The rule also provides for condensation of the record or submission of an “agreed state of facts,” upon our order or consent of the parties. “Thereafter the appeal shall proceed in the same manner as appeals from the trial division to the Appellate Division.”

As the Supreme Court has indicated, “a motivating factor in the adoption of B. B. 4:88-8 and 9 was the obvious •desirability, as a matter of practical and convenient administration, of having a hearing in the agency in the first instance which would meet the demands of due process. In this way the functions of the agency and the court may be exercised under conditions which give the broadest possible sweep to the jurisdiction of each.” In re Masiello 25 N. J. 590, 603 (1958). The fullest use is not made of this court’s power to review where, as here, no proceedings whatever are undertaken before the agency.

While R. R. 4:88-9 makes provision for presenting “additional evidence,” this is to be done only after the filing of the record referred to in B. B. 4:88-8 and a showing “that there were good reasons for failure to present it in the proceedings before the agency * * The additional evidence is to be taken before the agency, or, “in exceptional instances, before a judge of a trial division * * In short, R. R. 4:88-9 deals with evidence which may be presented before the agency. Since, as has been noted, there is no provision, by statute or otherwise, for the taking of evidence before the Department of Transportation in a condemnation matter, and therefore no record has or can be there compiled, R. R. 4:88-9 does not apply. See McKenna v. N. J. Highway Authority, 19 N. J. 270, 278 (1955), comparing R. R. 4:88-8 & 4:88-10 with R. R. 4:88-9 & 11.

In McKenna the Court was faced with an appeal from a rule of the Highway Authority, erroneously prosecuted under R. R. 4:88-8 instead of R. R. 4:88-10. Said the Court,

“* * * R. R. 4:88-8 was generally ‘designed to deal with so-called goiem-judicial decisions or actions adjudicating the rights of particular individuals,’ whereas R. R. 4:88-10 ‘was designed to deal with so-called gitosi-legislative rules governing future conduct generally’.”

McKenna v. N. J. Highway Authority, supra, at 276, quoting Carls v. Civil Service Commission, 17 N. J. 215, 219-220 (1955). The inaction complained of here falls within neither of these categories.

Moreover, we know of no instance in which an action such as the instant one has been instituted in this court. On several occasions, suits to compel condemnation have been brought in the Law Division with no jurisdictional objection raised. In O’Neill v. State Hwy. Dept., 50 N. J. 307 (1967), the Supreme Court remanded a matter to the Law Division for retrial and indicated that the issues to be considered on remand could be added to an existing demand that the Highway Department condemn certain lands allegedly taken by it. Id., at 316. See also Mueller v. N. J. Highway Authority, 59 N. J. Super. 583 (App. Div. 1960).

The motion to remand to the Law Division is granted. The decision reported in 98 N. J. Super. 386, supra, is overruled. No costs.


author: Gai'lkin, S. J. A. D.

text:
    ANTHONY M. PUCHALSKI, PLAINTIFF-APPELLANT, v. NEW JERSEY STATE PAROLE BOARD, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued January 13, 1969
    Decided January 29, 1969.

      Before Judges Galleti*, Collester and Labrecqlb.

      Mr. Henry Á. Hill, Jr. argued the cause for appellant.

      Mr. Eugene T. Urbaniah, Deputy Attorney General, argued the cause for respondent (Mr. Arthur J. Sills, Attorney General, attorney).
   Gai'lkin, S. J. A. D.

This case raises the question whether Puchalski was entitled to the assignment of counsel at public expense to assist him in making a plea for parole. We hold he was not.

Puehalski is presently serving a sentence of 29 to 30 years at New Jersey State Prison for second degre.e murder. Sometime prior to December 1, 1967 he was notified that he was scheduled to appear at a meeting with the Parole Board in March 1968, to be considered for parole. On December 1, 1967 he wrote to the chairman of the Parole Board requesting that an attorney be assigned “to represent my interests at the time I appear before the Board” and “to appear on the date in question.” A similar letter was directed to the Public Defender. He was advised by letters that neither organization would proAÚde counsel.

On January 9, 1968 an application was made to the Public Defender requesting that the Public Defender provide him with the limited representation allowed by N. J. 8. A. 30:4-123.25 —• namely, consultation with counsel prior to the parole hearing and submission by counsel of a brief or other legal argument on his behalf to the Parole Board. It is stipulated that an application for the assignment of counsel also was submitted, pursuant to R. R. 1:12-9, and that he is indigent. On January 30, 1968 the Public Defender denied this request on the grounds that “the statute establishing the Office of the Public Defender does not authorize representation * * * of indigent defendants in connection with any proceedings involving the State Parole Board.”

Thereafter Puehalski appeared before the Parole Board and parole was denied. His case was rescheduled for hearing in February 1970.

Puehalski does not contend that there is at present statutory or rule authority for assignment of counsel by the Parole Board or by any other agency to assist prisoners at parole hearings. Nor does he appear to contend that there is a constitutional or statutory right to be represented by counsel at a parole hearing. Rather, his sole contention appears to be that, since N. J. 8. A. 30:4-123.25 affords a prisoner “the right to consult legal counsel of his own selection” prior to -a parole hearing, the failure of the State to appoint counsel for an indigent prisoner for at least this limited purpose constitutes a denial of equal protection of the laws and due process of law under the Fourteenth Amendment.

In a series of eases dealing with the rights of indigent defendants on appeal, the United States Supreme Court has held that the state must supply a transcript without charge to indigent defendants, where such transcript is needed for adequate and effective appellate review and is available to those who pay a fee, Griffin v. People of State of Illinois, 351 U. S. 12, 76 S. Ct. 585, 100 L. Ed. 891 (1956); that such transcripts must be made available to indigents, without the intervention of a public defender, even on appeal of collateral proceedings such as denial of a writ of error coram nobis, Lane v. Brown, 372 U. S. 477, 83 S. Ct. 768, 9 L. Ed. 2d 892, 768 (1963); Gardner v. California, 393 U. S. 367, 89 S. Ct. 580, 21 L. Ed. 2d, 601 (1969); that filing fees may not be imposed where they would deny to the indigent criminal defendant review available to those who can pay, either by way of direct appeal, Burns v. Ohio, 360 U. S. 252, 79 S. Ct. 1164, 3 L. Ed. 2d 1209 (1959), or by way of collateral attack, Smith v. Bennett, 365 U. S. 708, 81 S. Ct. 895, 6 L. Ed. 2d 39 (1961), and that where a first appeal is granted to all defendants as a matter of right, the state must supply counsel for that appeal to indigent defendants. Douglas v. People of State of California, 372 U. S. 353, 83 S. Ct. 814, 9 L. Ed. 2d 811 (1963). See also Harper v. Virginia State Board of Elections, 383 U. S. 663, 86 S. Ct. 1079, 16 L. Ed. 2d 169 (1966) (holding the state’s poll tax unconstitutional because of its necessary denial of the franchise to those unable to pay).

The cases dealing with criminal appeals rest largely on the reasoning, expressed in both Griffin and Douglas, that even though there is no constitutional right to appeal, once such right is granted by the state, it must be granted equally to all defendants regardless of their financial condition. There must be no discrimination against the indigent in his right to appeal; the “type” of appeal he gets should not depend upon his ability to pay. Douglas v. People of State of California, supra, 372 U. S. 353, 83 S. Ct. 814, 9 L. Ed. 2d, at 814; Griffin v. People of the State of Illinois, supra, 351 U. S. 12, 76 S. Ct. 585, 100 L. Ed., at 898-899, 901; cf. Gardner v. California, supra.

PuchalskPs argument is that this reasoning should be extended to a New Jersey parole hearing. N. J. S. A. 30:4-123.25 provides:

“AVhen it becomes necessary for a prisoner to appear before the board, either for the purpose of determining his fitness for parole or to afford him an opportunity to be heard as to revocation of parole, such hearing shall be conducted in accordance with the rules and regulations of the board, but the prisoner shall have the right to consult legal counsel of his own selection, if he feels that his legal rights .are invaded, and subject to the consent of the board to submit in writing a brief or other legal argument on his behalf to the parole board, and to have the services of an interpreter at his hearing if such services are necessary. The board, however, may call before it such witnesses as it may deem necessary and proper and in order to compel their attendance, shall be vested with the power of subpoena * * (Emphasis ours.)

Thus, he contends that, to be even-handed and to avoid constitutional infirmity, the State must provide counsel for this consultative function, where a prisoner is unable to pay for it.

It should be noted that in the Supreme Court cases cited, particularly Griffin and Douglas, the court rested its decision on both the Equal Protection and the Due Process Clauses of the Eourteenth Amendment, without clearly enunciating the standards by which each or both of these provisions was applied. Certainly not all disadvantages of the poor are denials of equal protection. Nor do all burdens under which the poor labor because of their poverty constitute denials of due process of law. The question becomes, under both the Equal Protection and the Due Process Clauses, whether the particular “right” (or “privilege”) is of such fundamental importance that it should not be denied anyone because of lack of funds. See “Discrimination Against the Poor and the Fourteenth Amendment,” 81 Harv. L. Rev. 435, 437-438 (1967); Gardner v. California, supra.

The question is, therefore, whether the aid of counsel in seeking a parole is of such importance that the State should be required to furnish counsel for this purpose to those who cannot afford to pay for it. It should be noted at the outset that the statute does not provide for the appearance of counsel at the hearing, although the board may permit such appearance if it wishes. Even the matter of consideration of a prisoner’s brief is left entirely within the discretion of the Parole Board. Thus, the most that the statute grants as a “right” is that a prisoner may consult with counsel prior to the hearing, and even then only where “he feels that his legal rights are invaded.” This we construe to mean invasions which caused or contributed to his wrongful conviction or detention. By the same token, the brief contemplated by the statute must be one which deals with legal questions, not one which merely makes a plea of clemency. The fact that a right to consult counsel was provided for at all would seem to stem more from a desire to insure that if a prisoner needed legal advice he would not be prevented from receiving it, than from a desire to establish a right to consultation with counsel as a part of the hearing procedure.

While it is true that a parole hearing can determine whether a man will remain in confinement or be allowed a supervised freedom, the hearing is still essentially an administrative one concerning the effective operation of the correctional system. There is no adjudication of guilt or innocence, and ordinarily, no fact issues to be resolved such as would require the presence of counsel. Instead, the Parole Board seeks to determine the likely effect upon society and the prisoner of his early release. Only if the Board is of the unanimous opinion (N. J. S. A. 30:4-123.19) that “there is a reasonable probability that, if such prisoner is released, he will assume his proper and rightful place in society, without violation of the law, and that his release is not incompatible with the welfare of society,” is the Board authorized to release him on parole. N. J. S. A. 30:4-123.14. Such predictions as to future behavior are necessarily quite subjective and leave the Board with a broad discretion in the grant or denial of parole. Mastriani v. N. J. Parole Board, 95 N. J. Super. 351, 355-357 (App. Div. 1967), and cases there cited. No testimony need be taken; the Board need not divulge to the prisoner the reports upon which it acts; and it is not required to inform the prisoner of its reasons for denying him parole. Id., at p. 356.

In short, under usual circumstances there appears to be no such need there for an attorney as there is up to the time of his conviction and his ultimate confinement. There is no contention here that the present case is in any way unusual.

In State v. Seymour, 98 N. J. Super. 526 (App. Div. 1968), the court followed the United States Supreme Court decision in Mempa v. Rhay, 389 U. S. 128, 88 S. Ct. 254, 19 L. Ed. 2d 336 (1967), in holding that a defendant is entitled to counsel at a hearing to revoke probation, and to representation by the Public Defender at such hearing if he is indigent.

The Court in Mempa based its decision that counsel must be appointed to represent an indigent at a probation revocation proceeding on its conclusion that, under the Washington statute there presented, such proceeding was in effect the imposition of sentence which had been “deferred” during the probation period. The court noted that “appointment of counsel for an indigent is required at every stage of a criminal proceeding where substantial rights of a criminal accused may be affected,” and that its decision in Townsend v. Burke, 334 U. S. 736, 68 S. Ct. 1252, 92 L. Ed. 1690 (1948), “might well be considered to support by itself a holding that the right to counsel applies at sentencing.” Mempa v. Rhay, 389 U. S., at p. 134, 88 S. Ct., at p. 257, 19 L. Ed. 2d, at p. 340.

The court then considered the nature of the revocation of probation-sentencing procedure and found that counsel is needed at such proceedings to assist the convicted person “in marshaling the facts, introducing evidence of mitigating circumstances and in general aiding and assisting the defendant to present his case as to sentence * * Id., 389 U. S., at p. 135, 88 S. Ct., at p. 257, 19 L. Ed. 2d, at p. 341. “Even more important”' to the court was the fact that under Washington law certain rights could be lost if not exercised at this stage, including the right to appeal and the right to retract a guilty plea at any time up to sentencing.

The court in State v. Seymour, supra, found the reasoning in Mempa applicable to a revocation of probation hearing under New Jersey law.

It should be noted, however, that in neither of these cases was mention made of proceedings to grant parole. The situation presented at the hearing to grant parole is readily distinguishable from the revocation of probation proceedings considered in Mempa and Seymour. In the former, a conditional freedom is being granted to a prisoner by an administrative board, based on a largely discretionary application of its expertise. The factors deemed important in Mempa have passed; sentence has already been imposed; the prisoner has had an opportunity to present evidence to a court, with the advice of counsel, as to its appropriate limits; and there are no substantial legal rights which the prisoner could waive by not exercising them at the parole hearing.

Moreover, in revocation proceedings — both as to probation and parole —• there are usually specific factual allegations concerning the conduct of the probationer or parolee said to constitute a violation of probation or parole. An attorney could prove most useful, even essential, in defending against such allegations of misconduct — presenting contrary evidence or cross-examining adverse witnesses if necesary. There are no such issues here.

The refusal to assign counsel and the denial of parole are affirmed.


author: Per Curiam.

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. STEVEN DUFFEN, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued January 27, 1969
    Decided February 3, 1969.
    Before Judges Goldmann, Kolovsky and Carton.

      Mr. Michael Blaclcer, Assistant Deputy Public Defender, argued the cause for appellant (Mr. Peter Murray, Public Defender, attorney).

      Mr. Elliot L. Katz, Assistant County Prosecutor, argued the cause for respondent (Mr. Vincent P. Keuper, Monmouth County Prosecutor, attorney).
   Per Curiam.

Defendant appeals from a judgment based upon a jury verdict of guilty of attempted escape from a county jail. Numerous points for reversal are raised by defense counsel and individually by defendant acting pro se.

None of the arguments advanced has any substance except for the claim that the trial judge erred in denying defense counsel’s motion, made before anyone was called to the witness stand, to sequester the State’s witnesses. After counsel had stated his reasons in support of the motion, the trial judge said there was no showing that the circumstances of the case were unique so as to call for sequestration. This was error.

In State v. DiModica, 40 N. J. 404 (1963), the court, referring to its earlier opinion in State v. Williams, 29 N. J. 27, 45-46 (1959), said:

“That sequestration is discretionary with the trial court is the rule in the great majority of jurisdictions. Annotation, 32 A. L. R. 2d 358 (1953) ; 6 Wigmore, Evidence, § 1839, p. 359 (3d ed. 1940) (citing cases). Dean Wigmore, while recognizing the majority rule, is of the opinion that sequestration should be allowed as a matter of right. 6 Wigmore, supra, at p. 357. We reserved this question in State v. Williams, 29 N. J. 27 (1959), as reversal was there required for other reasons. Nevertheless, we observed that the reason for sequestration is to prevent prospective witnesses from hearing what the other witnesses detail in their evidence, ‘for the less a witness hears of another’s testimony the more likely is he to declare his own knowledge simply and unbiassed’ (quoting from State v. Zellers, 7 N. J. L. 220, 226 (Sup. Ct. 1824)). State v. Williams, supra, 29 N. J., at p. 46. And we noted that an exercise of sound discretion ordinarily requires that a motion for sequestration be granted. Ibid. We add that in order to uphold the denial of a timely motion for sequestration the record should disclose a sound basis for such denial. Where there is an arbitrary denial of a timely motion, it is not necessary for the defendant to show that he has been prejudiced thereby. Such a showing would be virtually impossible to make, for no one can tell how the later witnesses’ testimony might have differed had the motion been allowed. * * •” (at page 413.)

The record in this ease does not show a sound reason for the denial of the motion for sequestration. The rule so carefully and deliberately adopted in DiModica must be followed.

Reversed and remanded for a new trial.


author: Gaulkix, S. J. A. D.

text:
    THE STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. JOHN AMMIRATA, JR., DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued November 25, 1968
    Decided January 29, 1969.

      Before Judges Gaulicln, Collesteb and Labbecque.

      Mr. Gerald T. Foley, Jr., Assistant Deputy Public Defender, argued the cause for appellant (Mr. Stanley C. Van Ness, Public Defender, attorney).

      Mr. Arthur J. Timins, Assistant Prosecutor, argued the cause for respondent (Mr. Leo Eaplowitz, Union County Prosecutor, attorney; Mr. Henry W. Jaeger, Assistant Prosecutor, on the brief).
   The opinion of the court was delivered by

Gaulkix, S. J. A. D.

Defendant was convicted of unlawful possession of narcotics contrary to N. J. S. A. 24:18-4 and was sentenced to “an indeterminate term in the New Jersey Reformatory for Males, for not less than a period of two years,” plus a fine of $25. He challenges the sentence as improper, arguing that, under N. J. S. A. 30 :4-148, a sentence to the reformatory may not impose a mini-mum period of detention, and therefore his sentence should be corrected by eliminating the minimum.

N. J. S. A. 24:18-47(e) (1) provides that the punishment for the illegal possession of narcotics shall be “for a first offense, by a fine not exceeding $2,000 and by imprisonment, with hard labor, for a term of not less than 2 years nor more than 15 years.” On the other hand, N. J. S. A. 30 :4-148 provides:

“The courts in sentencing to the reformatory shall not fix or limit the duration of sentence, but the time which any such person shall serve in the reformatory or on parole shall not in any case exceed five years or the maximum term provided by law for the crime for which the prisoner was convicted and sentenced, if such maximum be less than five years; provided, however, that the court, in its discretion, for good cause shown, may impose a sentence greater than five years, but in no case greater than the maximum provided by law, and the commitment shall specify in every case the maximum of the sentence so imposed. The term may be terminated by the board of managers in accordance with its rules and regulations formally adopted.”

The State argues that N. J. S. A. 24:18-47(c) (1) makes a two-year minimum mandatory, no matter where the sentence is to be served. Defendant, on the other hand, contends that when the commitment is to the Reformatory for Males, N. J. S. A. 30:4-148 forbids the fixing of a minimum; that if a judge wishes to impose a minimum he may do so only with a minimum-maximum sentence, but in that case the commitment may not be to the reformatory, and when the minimum of a minimum-maximum sentence is to be two years, the commitment must be to State Prison. N. J. S. 24:164-15; cf. N. J. S. A. 30:4-155. Therefore, says defendant, his commitment being to the reformatory’-, the two-year minimum is void and should be expunged from his sentence. Furthermore, says defendant, if the two-year minimum is here upheld, he will be prejudiced for the following reasons. First, says he, one sentenced to a reformatory is not entitled to the credits for work time and good behavior which the statutes give to those sentenced to other correctional institutions under a minimum-maximum sentence; therefore, defendant will have to serve the full two-year minimum before he can be eligible for parole, while those sentenced to the reformatory for offenses other than those pertaining to narcotics are eligible for parole at any time chosen by the board of managers of the reformatory, which, theoretically, may be within a week or a month after- commitment. Cf. In re Nicholson, 69 N. J. Super. 230, 233 (App. Div. 1961). Second, defendant points out that the judge first sentenced him to the reformatory for not less than two years and not more than two years, thus indicating that he did not wish defendant to be imprisoned for more than two years, yet now he is subject to a five-year maximum without the corresponding benefit, to which he says he is entitled, of no minimum. He suggests that the judge changed the sentence to the one now under attack because he thought that N. J. S. A. 30: 4-148 prevented him from imposing a maximum of less than five years in the reformatory, even though N. J. S. A. 24:18-47 permits a lesser maximum, and yet he imposed the minimum mentioned in the latter statute without regard to the fact that N. J. S. A. 30:4-148 forbids a minimum. Therefore, says defendant, he is worse off in the reformatory than he would have been in State Prison under the judge’s original sentence, even though it is admitted that the sentencing judge meant to benefit defendant rather than to hurt him. (Defendant admits that a minimum-maximum sentence in which the minimum and maximum are the same is invalid, and therefore the original two to two sentence was improper, but he argues that the judge’s attitude showed that, if that had been the only problem, the minimum-maximum sentence would have been rectified by the judge by a slight addition to the maximum.)

We find that N. J. S. A. 30 :4-148 and N. J. S. A. 24:18-47 do conflict. How can they be reconciled? Three possible constructions may be suggested: (1) narcotics violators may not be sentenced to the reformatory, (2) they may be sentenced to the reformatory for the minimum required by N. J. S. A. 24:18-47(c) (1), as urged by the State, or, (3) as defendant argues, they may be sentenced to the reformatory, but in that case no minimum may be fixed.

We reject the proposition that the Legislature intended that no 24:18-47 defendants be committable to a reformatory. The 1965 Interim Eeport of the Legislature’s Narcotic Drug Study Commission shows that the Legislature knew that many of the inmates of the reformatories were violators of the narcotic laws. There is nothing to indicate .that the Legislature disapproved of their being placed there. Piad the Legislature intended that such defendants no longer be committed to a reformatory, we are certain that the Legislature would have said so plainly. In fact, the Legislature not only would have had to say so plainly but it would have been compelled to amend, at least, N. J. S. A. 30:4-155. .Otherwise, if N. J. S. A. 24:18-47 were construed to forbid commitment to a reformatory, there would be no place to •which female narcotic violators could be committed.

It may be argued that the words “with hard labor” in 24:18—47 indicates the commitment must be to State Prison. That once may have been the law, State v. Gray, 37 N. J. L. 368 (Sup Ct. 1875); Gibbs and Stanton v. State, 45 N. J. L. 379, 385 (Sup. Ct. 1883), affirmed 46 N. J. L. 353 (E. & A. 1884), but it is no longer, N. J. S. 2A. :164-15; N. J. S. A. 30:4-147; see also Bindernagle v. State, 61 N. J. L. 259, 263 (E. & A. 1897).

We reject defendant’s argument that no minimum may be fixed if the commitment is to the reformatory, for that would ignore the plain direction of N. J. S. A. 24 :18-47 to impose a minimum. It must be noted that N. J. S. A. 24:18-47 was amended three times (L. 1952, c. 90; L. 1964, c. 293; L. 1966, c. 313) between the date of the enactment of N. J. S. A. 30:4-148 (L. 1951, c. 335) and the date of defendant’s offense. That being so, we must obey N. J. S. A. 24:18-47. Therefore, we hold that every commitment, vVhether it be to a reformatory or any other correctional Institution, must be for the minimum fixed by 24:1.8-47.

We are informed by the Department of Institutions and .Agencies that, following the adoption of N. J. S. A. 24:18-47, it concluded that when a minimum was fixed thereunder in the commitment to a reformatory, the sentence, in effect, became a minimum-maximum sentence, the maximum being five years (or greater, if the-judge so ordered). Therefore, :as..the Department, through Deputy Attorney General Drbaniak, wrote us on January 15, 1969:

“Since the imposition of the 2-year minimum on an indeterminate reformatory senlenee having a 5-year maximum became, for all intents and purposes, a minimum-maximum sentence, it was determined that the State Parole Board had jurisdiction under R. S. 30 :4-123.5 where it is said:
‘It shall be the duty of the board to determine when, and under what conditions, subject to the provisions of this act, persons now or hereafter serving sentences having fixed minimum and maximum terms or serving sentences for life, in the several penal and correctional institutions, of this state may be released upon parole.’
I might add that when a prisoner under B. S. 24 :18-47, having a sentence of 2 to 5 years, is received he is given the commutation time for good behavior credits contemplated by R. S. 30:4-140 and work time credits under R. S. 30:4-92 and this for the simple reason that the legislature did not prohibit the grant of these credits under R. S. 24:18-4:7 as it did with precise language in N. J. S. A. 2A :164-10 relating to sex offenders * *

We understand also that the State Parole Board applies N. J. S. A. 30 :4-123.10 to such sentences.

We conclude that the Department’s reconciliation and implementation of the statutes are correct. And, because of the practice followed by the Department, defendant has not been prejudiced by being sentenced to the reformatory rather than to State Prison.

Affirmed.


text:
    ELEANOR LEAKE, PLAINTIFF-APPELLANT, v. EDNA BULLOCK, INDIVIDUALLY AND TRADING AS BULLOCK FUNERAL HOME, DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued January 20, 1969
    Decided January 31, 1969.

      .Before Judges Coneord, Kilkenny and Leonard.

      Mr. Thomas M. Maher argued the cause for appellant.

      Mr. Charles Armbrusier argued the cause for respondents (Mr. James D. Christie, attorney).
   Per Curiam.

Plaintiff appeals from a judgment of dismissal entered by the trial court upon the ground that her complaint was not filed within the two-year period of the statute of limitations, N. J. S. 2A :14-2.

Plaintiff was injured on February 1, 1966, allegedly because of a negligent condition existing on defendant’s premises. Her complaint was mailed from Hackensack to the Clerk of the Superior Court at Trenton on Monday, January 29, 1968, at 0 p. m. A check to cover the filing fee was enclosed. The complaint was received and stamped by the Clerk as “filed Feb. 2, 1968,” a Friday.

Defendant answered the complaint, pleaded the statute of limitations and moved for a judgment on the pleadings in that the complaint was not filed within the time provided for by the statute, N. J. S. 2A :14-2. This motion was granted and an order was entered dismissing the complaint.

Plaintiff first contends that the complaint was “in fact” filed within the statute of limitations. In offering this contention plaintiff concedes that in computing the time under the statute the day on which the cause of action accrued is not to be counted. Poetz v. Mix, 7 N. J. 436, 445 (1951). In Poetz the accident occurred on July 16, 1947 and the two-year limitation period was held to have been reached on July 16, 1949. However, plaintiff argues that since a leap year was included within the two years in Poetz, and since the court therein gave the plaintiff one day more than two years, she too, should be given the benefit of an extra day. Thus, she asserts that February 2, 1968 should be held to constitute the end of the two years. This contention is frivolous. N. J. S. 2A :14-2 mandates that the action “shall be commenced within 2 years next after the cause of any such action shall have accrued.” By this provision the Legislature meant two calendar years. It did not intend to break these years into a certain number of days. If it had intended this result, it could have easily so provided. The court in Poetz did not consider the number of days involved. Only through a fortuity did the plaintiff there have the benefit of an extra day before the statute of limitations expired. But the period was not more than two calendar years. Here, there is no leap year involved in the two-year period and plaintiff is not entitled to a similar benefit. We hold that the two-year limitation period within which plaintiff could file her action was reached on February 1, 1968 and that the filing on February 2, 1968 was untimely.

Plaintiff next contends that since the complaint was mailed well within the statute of limitations it should be considered as filed within that period. She also argues that equity and justice require that she should not be barred under the statute of limitations where mail should arrive within time in the ordinary course of business but for some unexplained reason does not. We find both of these contentions to be without merit.

A civil action is commenced by filing the complaint with the court. R. R. 4:3—1. This is accomplished by filing the original and a copy thereof with the Clerk of the Superior Court or, in the alternative, with a judge who “shall note thereon the filing date * * * [and] forthwith forward the same to the clerk for filing.” R. R. 4:5-6(a). “In contemplation of law, a paper or pleading is considered as filed when delivered to the proper custodian and received by him to be kept on file.” Poetz, supra, at p. 442 (emphasis added).

Gervolino v. Porter, 75 N. J. Super. 246 (App. Div. 1962), is inapposite. That case involved the giving of a statutory notice of intention to make a claim to the Unsatisfied Claim and Judgment Fund Board, which board has only one State office. The reasoning of that case is not applicable to the situation here present. Plaintiff could, -without any serious hardship, have persoiiallv filed the complaint with a Superior Court judge in her area before February 2 and thus completely avoided the possibility of a late filing.

Statutes of limitations embody important public policy considerations in that they stimulate activity and punish negligence and promote repose by giving security and stability to human affairs. Kyle v. Green Acres at Verona, Inc. 44 N. J. 100, 108 (1965). They are intended to run against those who are neglectful of their rights and who fail to use reasonable and proper diligence in the enforcement thereof. Ibid.

Plaintiff waited until four days before the expiration of the two-year limitation period before attempting to file her complaint. Due diligence would have required her either to have filed it directly with a Superior Court judge in her area or to have had it personally delivered to the clerk for filing. Since she chose to mail it to the clerk, reasonable diligence would require that she should have promptly inquired of the clerk to ascertain whether the complaint had been received. This she did not do. Under these circumstances, the risk of a delay in the mail is her own. We therefore conclude that she has not demonstrated any equity in her favor, assuming that equitable considerations could appropriately enter into our considerations.

Judgment affirmed.


author: Cauton, J. A. D.

text:
    FARMINGDALE REALTY CO., PLAINTIFF-APPELLANT, v. BOROUGH OF FARMINGDALE, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued December 17, 1968
    Decided January 31, 1969.

      Before Judges Goldmans, Kolovsky and Cakton.

      Mr. John Warren, Jr. argued the cause for appellant (Messrs. Parsons, Oanzona, Blair & Warren, attorneys; Mr. William G. Bassler on the brief).

      Mr. John W. O’Mara argued the cause for respondent (Messrs. 8aling, Boglioli & Moore, attorneys).
   The opinion of the court was delivered by

Cauton, J. A. D.

Plaintiff Earmingdale Bealty Co. appeals from a judgment dismissing its complaint against defendant Borough of Farmingdale, seeking a tax refund under N. J. 8. A. 54:4r-54 because of alleged duplicate assessments on certain buildings and improvements for the years 1962, 1963 and 1964. The land assessment is not in question.

In 1962 the improvements were assessed at $181,000. In 1963 and 1964 they were assessed at $215,000. The parties have stipulated that a revaluation firm, employed by defendant Borough in 1962, valued the improvements on plaintiff’s property at $144,021, and that the assessor, in computing the assessments, included not only the value of a residence owned and occupied by plaintiff’s president, but also duplicated the value of some of the buildings. If these improvements had been assessed on the basis of the valuations fixed by the revaluation firm, the assessments would have been $42,919 less in 1962 and $11,181 less in the years 1963 and 1964. No appeals were taken from these annual assessments.

The parties have also stipulated that these events are reflected only in office records described as “Assessors Cards” originally prepared by the revaluation company in conjunction with the revaluation. The annual tax duplicate contains a single entiy for land and another single entry for buildings and improvements which reflect only “a total valuation for land and total valuation for buildings without distinction as to a particular building or how the figures were arrived at.”

This situation' came to light when plaintiff appealed to the county tax board in 1965 from the $215,000 assessment for that year on improvements. The result was a settlement, confirmed by judgment of the tax board, reciting that the property was assessed in excess of its true value and reducing the value of the buildings to $140,000.

In January 1966 plaintiff filed a petition with the county tax board under N. J. 8. A. 54:4-54, seeking to compel defendant to refund the excessive tax payments made following these assessments. N. J. S. A. 54:4-54 provides, in pertinent part:

"Where by mistake properly real or personal has been twice entered and assessed on the tax duplicate, the governing body of the lading district or county board of taxation may order and cause the tax record to be corrected and if the tax has been twice paid the governing body of the taxing district shall refund the excessive payment without interest. * * *”

Plaintiff also applied to the borough for a refund. The borough refused, and the tax board, in turn, refused to order it to do so. Plaintiff did not appeal to the State Division of Tax Appeals. Instead, it instituted this Law Diviskm action, requesting damages for the amount of the taxes overpaid, totaling $5,644.43 with interest.

The trial judge found that relief should be denied to plaintiff taxpayer because it had not established that the property had been “twice entered and assessed on the tax duplicate.” He noted that ((as pointed out above) the tax duplicate itself contained only a single figure for the assessment of land and another one for the assessment of buildings and improvements, without any breakdown for the individual items comprising that figure. The fact that there existed a duplication of the value of certain buildings could therefore be ascertained only by a review of the separate valuations for the individual buildings and improvements appearing on the source records, the assessment cards, located in the assessor’s office.

Admittedly, plaintiff’s property had not been “twice entered and assessed on the tax duplicate” for the years in question. Nonetheless, plaintiff argues that this fact is immaterial. The thesis advanced is that there is no substantial difference between an assessor twice evaluating the same property and placing a total figure which is mathematically incorrect on the tax duplicate, and, on the other hand, listing each property twice on the tax duplicate. It urges that in both instances the property is twice assessed.

This argument disregards entirely the plain language of the statutory provision on which plaintiff’s claim to relief is grounded.

Considered alone, and without regard to the remainder of the Tax Act, the language of N. J. 8. A. 54:4^54, upon which plaintiff relies, suggests that it was designed to create a special remedy to cover a situation where there is a patent error in the taxing process; that is, one that is readily ascertainable by a simple inspection of the tax duplicate. This interpretation is confirmed by reference to the remainder of that section which specifies a number of different types of mistakes and designates the agency authorized to correct them, as well as the manner and time within which this must be done. Eor example, it provides for the correction of a mistake where an assessment intended for one parcel has been placed upon another one, and for a situation where one person has mistakenly paid the tax on the property of another, supposing it to be his own. Eurther, it would seem that even though this provision is designed to permit correction of certain mistakes, its use is limited to the kind of mistakes specified and to relief being granted in the manner provided in the statute. An error which cannot be detected from an inspection of the duplicate itself does not seem to fall within the category of mistakes for which the remedy was provided.

The tax duplicate, by statutory definition, is a true copy of the assessor’s assessment list. N. J. 8. A. 54:4r-3'<'. Plaintiff’s contention fails to give proper weight to the very important part the tax duplicate plays in the statutory scheme for tax administration. Let us briefly examine the pertinent provisions of that scheme.

The Tax Act delineates, in considerable detail, the specific functions to be performed by the assessor and sets an exact time schedule for their completion. Thus, N. J. 8. A. 54 :4h-23 directs the assessor to ascertain the names of the owners of all real property in the taxing district, and, after examination and Inquiry, to “determine the full and fair valué of each parcel of real property situate in the taxing district * * In accordance with forms and methods prescribed by the Director of the Division of Taxation, the assessor is directed to make a “list in tabular form” of the names of such owners, and to “set down in proper columns opposite each name the description and area of each parcel sufficient to ascertain its location and extent and the taxable value of each parcel * * *” (emphasis added). The statute also specifically requires that the tax hill shall contain separate valuations of land and buildings. N. J. 8. A. 54:4-24, 26.

The assessor must complete his assessment list and file that list, as well as the copy which is designated the tax duplicate, with the county board of taxation by January 10. N. J. 8. A. 54:4-35. The Tax Act mandates that, ten days before such filing, he

“* * * shall give public notice by advertisement in at least one newspaper circulating within his taxing district of a time and place when and where the assessment list may be inspected by any taxpayer for the purpose of enabling the taxpayer to ascertain what assessmenls have been made against him or his property and to confer informally with the assessor as to the correctness of the assessments, so that any errors may be corrected before the filing of the assessment list and duplicate.” N. J. 8. A. 54:4-38.

The freeholder boards, must, not later than 90 days after the beginning of the budget year, transmit to the county board of taxation a statement of the total amount appropriated and to be raised for current expenses, and must apportion the tax among the taxing districts. N. J. 8. A. 54:4-42.

R. S. 54:4-46 commands the county tax board to meet annually for the purpose of “examining, revising and correcting the tax lisits and duplicates,” and authorizes the board to compel assessors to prepare corrected tax lists and duplicates. N. J. 8. A. 54:4~47 requires it to revise, correct and equalize the assessed value of all property in the respective taxing districts. The board is directed next to “enter all changes or additions on the various tax lists and duplicates” and to

“fix and adjust the amount of State school, State and county tax to be levied in each taxing district in the county in proportion to the respective values thereof, * * * cause each assessor to enter in appropriate columns upon the tax lists and duplicates for his respective taxing district the net corrected value assessed • to each person for both real and personal property, * * * and to extend on the duplicates, (a) the amount of tax computed on each assessment at that rate * * N. J. S. A. 54:4-48.

Under N. J. 8. A. 54:4-53 the county board is given authority to make adjustment by debit or credit in the following year “upon proof of the discovery of a clerical error in the reported ratables of a taxing district,” after the amounts to be raised for various purposes have been apportioned for a given year.

Immediately following the provision upon which plaintiff relies appears the following provision, directing the county board, on or before May 1 of each year, to

“cause the corrected, revised and completed duplicates, certified by it to be a true record of the taxes assessed, to be delivered to the collectors of the various taxing districts in the county, and the tax lists shall remain in the office of the board as a public record. Thereafter neither the assessor nor the collector shall make or cause to be made^ any change or alteration in the tax duplicate except as may be provided by law.” S'. J. S. A. 54:4^55.

The tax assessors are given authority by the tax board to have custody of the duplicates, but they are forbidden to make any change or alteration to the duplicate. N. J. 8. A. 54:4-55.1. Provisions also appear in the statute for the filing, correction and delivery of the added assessment list, and added assessment duplicate. N. J. 8. A. 54:4-63.17.

It is readily seen that the Legislature has, over the years, developed a very comprehensive scheme governing the entire assessment process and has provided special remedies and procedures for correction and revision of assessments by various agencies at specified stages of that process during the tax year. The specific provisions for the preparation, filing, revision and correction of the tax, duplicate and the frequent references to that document appearing in the Tax Act emphasize the important role which that document plays in that process and convincingly establishes that the Legislature intended the term “tax duplicate” as a term of art, having a technical and well understood meaning. See N. J. S. A. 1:1—1.

The conclusion seems inescapable that the right granted a taxpayer under N. J. 8. A. 51:4-54 to seek correction of mistakes in assessments is a remedy which is made available to him only if he complies with the express requirements of that provision. It is clear that plaintiff has not shown itself to be entitled to the relief which that provision was intended to afford. Cf. Aichele v. Borough of Oakley, 1 N. J. Super. 621, 626 (Law Div. 1948).

Under the statutes referred to above, the tax assessor was obliged to publish when the tax assessment lists were available for inspection. If plaintiff was concerned about the aesessment, it could have inspected the assessment list and could have conferred with the assessor as to the correctness of the assessments, so that any error could be corrected before the filing of the tax list and tax duplicate. If it was dissatisfied with the amount of the assessment for improvements imposed for the years 1962 through 1964, it could well have appealed such assessments in the same manner as it appealed its 1965 assessment.

The statute affords special remedies for correction of errors at various stages of the taxing process, from the preparation of the original tax lists and tax duplicate through to the equalization of taxes among the districts. Bearing in mind the fact that taxes are levied and imposed on an annual basis, and bearing in mind the precise timetable fixed by the Tax Act for the performance of the various stages of assessment and review, the legislative design is clear that all corrections should be made in conformity with the statutory procedure in order to permit the various statutory agencies to perform the various tasks assigned to them.

All of the foregoing points to the conclusion that plaintiff may not disregard the plain requirements of the statute and. at this late date repair its oversight in failing to appeal the assessments in the usual fashion. In view of the conclusion we have reached, we deem it unnecessary to consider whether plaintiff may also be precluded from prosecuting this action for failure to exhaust its administrative remedies by appealing from the count}r tax board’s refusal to order a refund.

The judgment is affirmed.


author: Pee OxniiAM.

text:
    AMERICAN RADIATOR AND STANDARD SANITARY CORPORATION, PETITIONER-RESPONDENT, v. DIRECTOR, DIVISION OF TAXATION OF THE STATE OF NEW JERSEY, RESPONDENT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued January 13, 1969
    Decided February 3, 1969.

      Before Judges Coneoed, KiLKEisrsrY and Leonaed.

      Mr. Charles H. Landesman, Deputy Attorney General, argued the cause for appellant (Mr. Arthur J. Bills, Attorney General, attorney; Mr. Elias Abelson, Deputy Attorney General, of counsel).

      Mr. Raymond J. Lamb argued the cause for respondent (Messrs. Lamb, Blake, Hutchinson, & Dunne, attorneys).
   Pee OxniiAM.

We agree with the determination of the Division of Tax Appeals that in recasting the taxpayer’s book inventory for corporate franchise tax purposes the Director of the Division of Taxation was required, as a matter of sound accounting principles, under the unrefuted expert proofs, to allow a reserve for liability for the increased federal income taxes which would have been incurred by the company if such a change in inventories had actually been reflected on its books of account.

In R. H. Macy & Co. Inc. v. Director, Division of Taxation, 77 N. J. Super, 155 (App. Div. 1962), affirmed o. b. 41 N. J. 3 ( 1963), we sustained the Director’s right to revise a taxpayer’s inventory from a Lifo to a Pifo basis, but the question as to whether sound accounting principles would require as a concomitant thereof the allowance of a reserve for accompanying increase of income tax liability was not considered by the court because not raised by the taxpayer.

The State’s contention that the Director’s mere administrative action in this matter will not actually increase the taxpayer’s income tax liability for the years in question is irrelevant. Since the Director has departed from actual book inventory for present franchise tax purposes, he must assume, for such purposes, the hypothetical state of facts in relation to the taxpayer’s income tax liability which sound accounting principles, according to the evidence in this case, would require to be reflected on the taxpayer’s books concomitantly with a substitution of Eifo for Lifo inventory figures. Cf. American Can Co. v. Director of Div. of Tax., 87 N. J. Super. 1 (App. Div. 1965), certification denied 44 N. J. 587 (1965).

Judgment affirmed.