author: Seidman, J. A. D.

text:
    CITIZENS FOR BETTER EDUCATION, MARILYN WHITHAM, JERROTHIA RIGGS, BARBARA BROWN, DR. JOHN W. ROBINSON, JOYCE CARTER, SANDRA ARMSTRONG, VERA BENJAMIN, JACQUELINE HARPER, EDITH CURLY, ALMA G. PETERSON, AND DELORIS MOYE, PETITIONERS-APPELLANTS. v. BOARD OF EDUCATION OF THE CITY OF CAMDEN AND DR. CHARLES SMERLIN, SUPERINTENDENT OF SCHOOLS, CAMDEN COUNTY, RESPONDENTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued June 4, 1973
    Decided July 12, 1973.

      Before Judges Carton, Mintz and Seidman.

      Mr. Robert D. Pitt argued the cause for appellants (Mr. Carl S. Bisgaier, Director Camden Regional Legal Services, Inc., attorney).

      Mr. Raymond Kassekert argued the cause for respondents (Mr. Leonard A. Spector, attorney).

      Mr. George F. Kugler, Jr., Attorney General of Yew Jersey, filed a statement in lieu of brief on behalf of the Yew Jersey State Board of Education (Mr. Lewis M. Popper, Deputy Attorney General, of counsel).
   The opinion of the court was delivered by

Seidman, J. A. D.

This is an appeal by petitioners pursuant to R. 2:2-3 (a) (2) from an affirmance by the New Jersey State Board of Education of an adverse decision of the Commissioner of Education.

The principal question is whether petitioners have a statutory or common law right to require respondent school board to disclose the results of standardized achievement tests on a school-by-school and grade-by-grade basis. They do not seek access to the records of individual pupils.

Citizens for Better Education is an unincorporated association which describes itself as “an informal group of citizens, parents, and professional people who take an active interest in education in general and in the schools of the City of Camden, in particular.” The individual petitioners are residents of Camden, most of whom are parents of children enrolled in the school system. They had requested the local board of education to make public the results of standardized achievement tests administered in the public schools of the city. Specifically, they sought the median reading level scores by school and grade for the years 1968 to 1970, and also, on an annual basis, the test results in a form which gave the mean or median for each grade in each school and the national norm for each grade. It is not disputed that reports of the test results in the form sought are in respondents’ possession. The board furnished test results by grade but regionally by groups of schools,. It has refused to give the data by grade anti by school as requested.

Petitioners then sought an order from the Commissioner of Education requiring the local board and its superintendent to disclose the information in the form sought by petitioners. Testimony and documentary evidence were presented at a hearing conducted June I, 1971, by a hearing officer appointed by the Commissioner. On December 20, 1971 the Commissioner issued a decision adverse to petitioners. On appeal to the State Board of Education the decision was affirmed. This appeal followed.

The Commissioner characterized the testimony presented as “consist[ing] almost entirely of expressions of differing points of view of educational philosophy and both personal and professional judgment, regarding the role of the public schools with respect to community interest generally, and certain specific concerns of a diverse group of citizens.” Ho saw the issue as turning on the discretionary exercise of power by the school board. He reasoned that “[s]ince local boards of education are not required by law to administer comprehensive achievement tests oE basic skills, the test-results data sought by petitioners do not constitute a public record”; consequently, petitioners’ right to the test results was not protected by the so-called Eight-to-Know Law, N. J. 8. A. 47:1A — 1 et seq. He said, further, that the board’s decision to publish the data by region was an exercise of its discretionary authority which the Commissioner would not disturb in the absence of a showing that it was arbitrary or unreasonable.

We disagree with the conclusions of the Commissioners.

If the test results are available in the form desired by petitioners, as they seem to be, the question to be resolved is whether they are public records. If they are, petitioners would have a statutory right to inspect them. The Eight-to-Know Law, N. J. 8. A. 47 :lA-2, declares that every citizen of this State, during regular business hours, shall have the right to inspect and copy or purchase copies of public records. No showing of any personal or particular interest in the material is required. Irval Realty v. Bd. of Pub. Util. Comm’rs, 61 N. J. 366, 372-373 (1972). There is also a common law right to inspect such records. In the Irval Realty case the court said:

At common law a citizen had an enforceable right to require custodians of public records to make them available for reasonable inspection and examination. It was, however, necessary that the citizen be able to show an interest in the subject matter of the material he sought to scrutinize. Such interest need not have been purely personal. As one citizen or taxpayer out of many, concerned with a public problem or issue, he might demand and be accorded access to public records bearing upon the problem, even though his individual interest may have been slight. Ferry v. Williams, 41 N. J. L. 332 (Sup. Ct. 1879) ; Taxpayers Association v. City of Cape May, 2 N. J. Super. 27 (App. Div. 1949) ; Moore v. Board of Chosen Freeholders of Mercer County, 76 N. J. Super. 396 (App. Div. 1962), mod. 39 N. J. 26 (1962). Yet some showing of interest was required, [at 372]

The Commissioner’s conclusion that since local boards are not required to administer comprehensive achievement tests the results thereof are not public records is unsound. The fact that something need not be done does not mean that if it is done the report thereof is not a public record.

To ascertain what is a public record we look first to the Right-to-Know Law, N. J. 8. A. 47:lA-2, which provides, with exceptions not applicable here, that

* * [A.]ll records which are required by law to be made, maintained or kept on file by any board, body, agency, department, commission or official of the State or of any political subdivision thereof * * * shall, for - the purpose of this act, be deemed to be public records * * *.

In the Destruction of Public Records Law (1953), N. J. 8. A. 47:3-16, the term is defined, in pertinent part, as

* * * [A]ny paper, written or printed book, document or drawing, map or plan, photograph, microfilm, sound-recording or similar device, or any copy thereof * *■ :s that has been received by any such officer, commission, agency or authority of the State or of any political subdivision thereof, including subordinate boards) thereof, in connection with the transaction of public business and lias been retained by such recipient or its successor as evidence of its activities or because of the information contained therein. [Emphasis supplied]

Considering these statutes in pari materia, the test results clearly qualify as public records. It is noted, moreover, that the rules of the State Board of Education relating to the inspection ox school records provide, among other tilings, that “pupil records may be open to inspection by persons who, in the judgment of the board of education or any officer or employee of the board designated by the board, have a legitimate interest in the records for purposes of systematic education research, guidance and social service.” N. J. A. O. 6:3-4(6). See also, N. J. 8. A. 18A:36-19.

Additionally, it is undisputed that the rules and regulations contained in the Administrative Manual of the Camden Board of Education direct the Supervisor of Guidance Services to coordinate system-wide testing programs and to report the results of tests administered. Since the reporting of test results is required by administrative rule, such reports are public records within the statutory definition. Irval Realty v. Bd. of Pub. Ulil. Comm’rs, supra, 61 N. J. at 375.

There is no merit to the contention that since a summary of the report was publicly released, the refusal to furnish the data requested by petitioners was a proper exercise of discretionary authority. The report contained information which a citizen may have a legitimate interest in knowing, in which case there is no valid reason for withholding the information from public view. DeLia v. Kiernan, 119 N. J. Super. 581, 584 (App. Div. 1972), certif. den. 62 N. J. 74 (1972). Respondents’ further argument that the information in question is highly technical and intended for use by professional, qualified educators, and that the “results in the hands of non-qualified evaluators would only lead to erroneous inferences,” is specious. These conjectured fears are not sufficient to justify keeping from petitioners a public record which, by statute or by common law, they can rightfully inspect. Cf. Accident Index Bureau, Inc. v. Hughes, 46 N. J. 160 (1965). See also, Bzozowski v. Penn-Reading Seashore Lines, 107 N. J. Super. 467 (Law Div. 1969). Petitioners are endeavoring to ascertain what deficiencies, if any, exist in any grade or school. This is a matter of legitimate public concern and clearly outweighs any conceivable interest there may be in maintaining the confidentiality of the information in the form sought.

Reversed. Respondents are ordered to permit petitioners to inspect and copy reports or such portions thereof as reveal the results of city-wide standardized achievement tests by grade and school, as sought in their petition, or to purchase copies thereof. No costs.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. EDWARD TIRONE, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued June 11, 1973
    Decided July 17, 1973.

      Before Judges Fritz, Lynch and Trautwein.

      Mr. Carl R. Lobel, Assistant Deputy Public Defender, argued the cause for the appellant (Mr. Stanley C. Van Ness, Public Defender, attorney for appellant).

      Mr. Dante P. Mongiardo, Assistant Prosecutor, argued the cause for the respondent (Mr. Joseph D. J. Gourley, Passaic County Prosecutor, attorney for respondent).
   Per Curiam.

Defendant was indicted for assault with intent to rape, in violation of N. J. S. A. 2A:90-2, and rape, in violation of N. J. S. A. 2A:138-1. He was tried by a jury and found guilty of rape. The sentence imposed was a term of 10 to 15 years.

Amongst the alleged errors raised by defendant in this appeal with which we deal first are:

1. The admission into testimony of a “fresh complaint” made by the victim to her brother Larry Sanzari, defendant contending that the doctrine underlying such testimony is no longer a valid exception to the hearsay evidence rule.
2. The trial court should have charged the jury on the limited use of “fresh complaint” testimony as required by Evidence Buie 6.
3. The court improperly restricted cross-examination of a police sergeant on the contents of the original complaint of the victim and his testimony before the grand jury.

Review of the testimony at the trial discloses that the victim met defendant casually on her coffee break outside her place of work and accepted a date to meet him after work that evening. The date was kept and the two embarked on a tour of several bars after dining, ending up for coffee at a diner. Thereafter, the victim drove defendant to his home in her car and alleged that the rape was committed in her automobile after a good-night kiss. She testified she reached her home about 2 a.m. and later called her brother Larry Sanzari between 9 and 10 a.m., telling his wife of the incident. Larry Sanzari testified thereafter that his sister, the victim, told him that she had been raped.

We conceive that the “fresh complaint” doctrine is still a viable exception to the hearsay rule, State v. Balles, 47 N. J. 331 (1966), cert. den. 388 U. S. 461, 87 S. Ct. 2120, 18 L. Ed. 2d 1321 (1967); State v. Gambutii, 36 N. J. Super. 219 (App. Div. 1955). Accordingly, we doubt that under Evidence Rule 20 the use of “fresh complaint” testimony is limited to meeting a charge of recent fabrication, but even were it otherwise, a close reading of defendant’s cross-examination of the victim discloses at the very least an attempt by innuendo, in the form of the questions propounded, to make that very charge. Accordingly, we find no error on this score.

Insofar as defendant claims error on the admission of Larry Sanzari’s testimony of the victim’s complaint to him as not being “fresh” because of the lapse of some seven to eight hours between the happening of the alleged rape and the complaint, we again find no merit. Delay in making the complaint may lessen the value and weight thereof but does not effect its competency. State v. Balles, supra; State v. Schaeffer, 87 N. J. L. 663 (E. & A. 1915).

We next consider the contention of error referrable to an absence in the charge of the limited use of “fresh complaint” testimony. This question was not raised below either by a requested charge or an objection after the charge, so we must consider it under the guidelines of “plain error.” We are persuaded that this omission had the clear capacity to bring about an unjust result. B. 2:10~2. A “fresh complaint” was employed by the State to bolster the credibility of the victim and to blunt the charge (if the jury so inferred from counsel’s questions of the victim) of recent fabrication. State v. Gambutti, supra, held that “fresh complaint” testimony is admitted solely for the purpose of supporting credibility, and the triers of the fact should be accordingly charged on this limited use pursuant to Evidence Rule 6. Clearly, a “fresh complaint” is not to be considered as substantive corroboration of the criminal act (rape) here charged but to bolster the victim’s credibility. It is for this reason that the substantive details of the alleged rape, with but certain exceptions not here pertinent, are not permitted when testimony in the form of a “fresh complaint” is offered. Without the appropriate limiting charge, the jury could have been mistaken as to the proper function of this testimony.

While sufficient error has been demonstrated to mandate reversal, we add a cautionary note concerning defendant’s contention that there was an improper restriction of his cross-examination of Sergeant Sniatkowski regarding the contents of the original complaint sworn out prior to indictment, suggesting a charge of attempted rape rather than rape, and his testimony before the grand jury. If, indeed, questions and answers in this area develop that Sniatkowski took the victim’s original oral complaint and prepared the original complaint, then examination on this score would be proper as relevant to the testing of Sniatkowski’s credibility inasmuch as he had previously testified in the trial that the victim told him that she had been raped.

In view of the foregoing, we find it unnecessary to deal with the remaining contentions of error made by the defendant.

Eor the reasons herein expressed, we reverse and remand for a new trial.


author: Fundler, J. J. D. R. C.,

text:
    E AND WIFE, PLAINTIFFS, v. T AND WIFE, DEFENDANTS.
    Superior Court of New Jersey Chancery Division
    Decided June 29, 1973.

      Mr. Joel D. Siegal for plaintiffs (Messrs. Hellring, Lindeman & Landau, attorneys).

      Mr. Adrian M. Unger for defendants (Messrs. Milton M. and Adrian M. Unger, attorneys).
   Fundler, J. J. D. R. C.,

Temporarily Assigned. The present action was instituted on January 3, 1973 when plaintiffs filed with this court their verified complaint and supporting affidavits seeking custody of the infant children S and D and other ancillary relief. They thereupon obtained an order to show cause directing defendants to return said children immediately to plaintiffs’ care and custody, and restraining them from taking the children from plaintiffs’ custody without the order of this court. The order to show cause was returnable on January 26, 1973 and it, together ■with, the verified complaint and supporting affidavits, was personally served upon defendants on January 4, 1973 in Las Vegas, Nevada.

Defendants have now moved before this court for an order dismissing the complaint and discharging the order to show cause, asserting that the court lacks jurisdiction over the subject matter, the person of defendants and the infant children; that there was insufficiency of process, and on the basis of comity and forum non conveniens. The original return date of the order to show cause was adjourned by consent and the parties agreed to consolidate the hearing on the order to show cause and defendants’ motions. All parties have filed detailed affidavits, supporting documents and extensive legal briefs. Initial oral argument was heard on April 30, 1973 and the matter was thereafter continued for several weeks to permit the filing of additional papers and briefs with the court. Further oral argument was waived and the matter is now before the court for decision on the documentation filed.

The essential facts necessary for a determination of the issues presented are neither complicated nor materially disputed. Plaintiff-father, age 49, has been married to the co-plaintiff since 1955. Defendant-mother, age 25, has been married to the co-defendant since February 1972. Plaintiff-father and defendant-mother are the natural parents of the two illegitimate infant children S and D whoso custody is in dispute. The first child S was born on April 20, 1966 and the second child D was born on June 24, 1967. Both children were born in the same hospital in Philadelphia, Pennsylvania, under plaintiff-father’s last name which the defendant-mother had assumed upon admission to the hospital for each childbirth.

It is undisputed that since October 1967 both children have been under the continuous care and custody of plaintiff-father and his wife who have resided here in New Jersey. Between October 1967 and September 1970 defendant-mother saw the children on but three occasions and thereafter at infrequent intervals until December 1972. On December 26, 1972 defendants visited the home of plaintiffs in New Jersey and under a subterfuge took physical control of the children and surreptitiously removed them from the State of New Jersey to their home in Las Yegas, Nevada.

After service of the papers in this proceeding upon defendants in Nevada, plaintiffs filed a petition for a writ of habeas corpus in the Nevada courts on January 8, 1973 seeking to enforce the interim relief granted by this court. On January 23, 1973 the Nevada court granted plaintiffs’ petition, and defendants in this action were ordered to immediately deliver the children S and D to the natural father, plaintiff in this action. In that decision, Judge Michael J. Wendell, sitting in the Eighth Judicial District Court of the State of Nevada, said.

This court believes that the children, having lived in the State of New Jersey for all this period of time, that the proper forum for hearing this matter is the State of New Jersey. And this court defers to that state. The Petition for the Writ is granted.

Defendants filed an immediate appeal from this decision, and upon the posting of a bond, Judge Wendell’s order was stayed the same day it was made. Plaintiffs’ subsequent efforts in the Nevada courts to dissolve the order staying the writ granted by Judge Wendell have been futile and the case continues on its appellate course in the Nevada courts.

The merits of the custodial issue and the ancillary relief framed in the complaint are not now before this court. It is basic, however, that in all matters relating to the custody of minor children the paramount consideration of this and any other court is and should be the safety, happiness, physical, mental and moral welfare of the child. Fantony v. Fantony, 21 N. J. 525 (1956); Schwartz v. Schwartz, 68 N. J. Super. 223 (App. Div. 1961); Sheehan v. Sheehan, 38 N. J. Super. 120 (App. Div. 1955); Scanlon v Scanlon, 29 N. J. Super. 317 (App. Div. 1954); Grove v. Grove, 21 N. J. Super. 447 (App. Div. 1952); Lippincott v. Lippin cott, 97 N. J. Eq. 517 (E. & A. 1925). Each case must be decided on its own facts and circumstances, and neither parent has a superior right to custody. Fantony v. Fantony, supra. Judicial jurisdiction over the subject matter relating to such custodial issues is not necessarily exclusive, and more than one state, under a given set of facts, could have subject matter jurisdiction. See Vannucchi v. Vannucchi, 113 N. J. Super. 40 (App. Div. 1971); Sampsell v. Superior Court, 32 Cal. 2d 763, 197 P. 2d 739 (Sup. Ct. 1948); May v. Anderson, 345 U. S. 528, 73 S. CL. 840, 97 L. Ed. 1221 (1953). See also, Note, “Long-Arm Jurisdiction in Alimony and Custody Cases" 73 Colum. L. Rev. 289, 307 (1973). A court’s election to exercise its jurisdiction in a custody dispute where the facts evidence a concurrent jurisdiction situation should be grounded in sound judicial discretion based upon the equities presented and the primary or paramount concern in protecting the child’s best interests. Vannucchi v. Vannucchi, supra.

The parens patriae jurisdiction of this court, derived from the common law, case law and statutes to regulate and control the custody of infants, has as its basis the protection of the state that is due to all helpless or incompetent persons. Henderson v. Henderson, 10 N. J. 390 (1952) ; Fantony v. Fantony, supra. This jurisdiction is as broad as it is long, and springs from the necessity of the case. See In re Olcott, 141 N. J. Eq. 8 (Ch. 1947). It is illogical to believe, and unacceptable to this court that its parens patriae jurisdiction over the infants in question can be lost or thwarted by their physical removal from the State of New Jersey against our public policy.

The provisions of N. J. S. A. 9 :2-2 are definitive legislative expressions of the public policy of the State of New Jersey. This statute in its pertinent part provides,

When the Superior Court has jurisdiction over the custody and maintenance of the minor children of parents . . . separated or living- separate, and such children . . . have resided five years within its [New Jersey 1 limits, they shall not be removed out of its jurisdiction against their own consent, if of suitable age to signify same, nor while under that age without the consent of both parents, unless the court, upon cause shown, shall otherwise order.

It has already been held that the parens patriae jurisdiction of this court is not limited by virtue of this statute but that it supplements the jurisdiction referred to previously. Fantony v. Fantony, supra.; Casteel v. Casteel, 45 N. J. Super. 338 (App. Div. 1957). The provisions of N. J. S. A. 9:2-3 are also supplemental to the parens patriae jurisdiction of this court under the cited cases and it too confers jurisdiction in this court •with respect to the custody of minor children as those in this case.

Under the facts presented New Jersey is the proper forum for a decision on the merits relating to the custody of S and D, who have spent most of their natural lives here. This was recognized by Judge Wendell in. his judicial determination deferring that issue to this jurisdiction, and although not expressly stated that ruling is properly based upon principles of comity and forum non conveniens. See Starr v. Berry, 25 N. J. 573 (1958). Such cooperation between states in the delicate cases involving the custody of minor children can effectively preclude the involuntary removal of minor children from one jurisdiction to another without prior recourse to the proper judicial tribunal wherein the children are first found. This will also protect the children from the damaging physical and emotional effects that such sudden change brings about and will enable the state with a more direct interest in the children and better ability under the facts to determine the custodial issues. This court will not abdicate its statutory and parens patriae duty and responsibility to protect the interests of the minor children in question and will therefore exercise and retain jurisdiction in this case to hear and decide the issues raised.

It has been advanced by the defendants that in view of the provisions of N. J. S. A. 9 :16 — 1, the defendant-mother had exclusive right to the custody of the children and an absolute right to remove them from this state. That statute gives to the mother of an illegitimate child the “exclusive right to its custody and control and the putative father of such child shall have no right of custody, control or access to such child without the mother’s consent.” Distinctions affecting the substantial rights of either a child or its natural parents based upon the illegitimate status of the child have been held to be violative of the due process clause of the Fourteenth Amendment and a denial of equal protection of the law under the Constitution of the United States. Stanley v. Illinois, 405 U. S. 645, 92 S. Ct. 1208, 31 L. Ed. 2d 551 (1972). Plaintiff-father is not the “putative father” of the children in question but is the admitted natural father. In R. v. F., 113 N. J. Super. 396 (J. D. E. Ct. 1971), the court held that the admitted natural father of an illegitimate child had a right of visitation, distinguishing between “putative father” as used in N. J. S. A. 9:16-1 and natural father, the former being one who is accused, alleged or reputed to be the father of an illegitimate child whereas the latter is one who admits paternity or has been adjudicated same. This essential distinction renders the provisions of N. J. S. A. 9:16-1 inapplicable to the present case, and defendants’ position on this issue is hereby rejected. In addition it should be noted that the natural mother’s fitness and her abandonment of the children are other factual issues raised by the complaint and thus whatever rights defendant-mother may have under the statute may be conditional or may have been forfeited.

Defendants also contend that this court has no in personam jurisdiction over them. They were served personally with the order to show cause, verified complaint and supporting affidavits in Las Vegas, Nevada. It is this court’s opinion that R. 4:4-4 prescribes the method of effectuating long-arm personal jurisdiction over defendants in this ease. See Wright v. Wright, 114 N. J. Super. 439 (Ch. Div. 1971). Defendants’ actions in coming to the State of New Jersey and removing therefrom the children in question, who had resided here most of their natural life and for at least the last five years, is in this court’s opinion sufficient minimum contacts on the custodial issue, not to mention the ancillary relief requested. Such jurisdiction does not offend traditional notions of fair play and substantial justice and is consistent with due process of law. Wright v. Wright, supra; Avdel Corporation v. Mecure, 58 N. J. 264 (1971); J. W. Sparks & Co. v. Gallos, 47 N. J. 295 (1966); Pennoyer v. Neff, 95 U. S. 714, 24 L. Ed. 565 (1878); International Shoe Co. v. Washington, 326 U. S. 310, 66 S. Ct. 154, 90 L. Ed. 95 (1945); McGee v. International Life Ins. Co., 355 U. S. 220, 78 S. Ct. 199, 2 L. Ed. 2d 223 (1957); Hanson v. Denckla, 357 U. S. 235, 78 S. Ct. 1228, 2 L. Ed. 2d 1283 (1958). See also, Note, “Long-Arm Jurisdiction in Alimony and Custody Cases,” 73 Colum. L. Rev. 289 (1973).

Eor the foregoing reasons defendants’ motions are denied, the order to show cause is hereby made permanent, and the action shall proceed in a plenary manner. Defendants are hereby granted 30 days from the date of this decision to file their answer to the complaint. Submit an order in accordance herewith which should include a provision for a probation department investigation in accordance with R. 4: 79-8.


author: McKenzie, J. C. C.,

text:
    JOAN ANTONUCCI, PLAINTIFF, v. ROBERT ANTONUCCI, DEFENDANT.
    Superior Court of New Jersey Chancery Division
    Decided July 5, 1973.

      Mr. Richard W. Bennett for plaintiff.
   McKenzie, J. C. C.,

Temporarily Assigned. Does a single act of sexual intercourse between the parties during the prescribed period of separation prevent the granting of a divorce under N. J. S. A. 2A:34 — 2(d) ? That section of our Divorce Act allows the granting of a divorce based on

Separation, provided that the husband and wife have lived separate and apart in different habitations for a period of at least 18 or more consecutive months and there is no reasonable prospect of reconciliation ; provided, further that after the 18-month period there shall be a presumption that there is no reasonable prospect of reconciliation ; * * *.

The parties were married in October 1960. They separated in February 1970 and lived in separate residences thereafter. In April 1971, however, and therefore before they had been separated for 18 months, defendant came to plaintiff’s home and discussed the possibility of reconciliation. On this occasion the parties engaged in sexual relations. Defendant left in the early evening, indicating he would return but did not do so. After February 1970, and until the date of trial, plaintiff did not see defendant nor have any communication from him except for the visit in April 1971. She filed her complaint in June 1972.

In another case decided recently, this court held that where the parties, after 18 months of separation, engaged in a brief unsuccessful attempt to achieve a reconciliation, they did not lose the cause of action already accrued. To hold otherwise, it was pointed out, would tend to discourage attempts at reconciliation by couples already separated for the required period. Brittner v. Brittner, 124 N. J. Super. 259 (Ch. Div. 1973). In the instant case the act of intercourse occurred before the 18 month’s period had transpired and thus before the cause of action had accrued.

The court is satisfied that plaintiff sincerely believed defendant was desirous of a reconciliation. His desires were not in fact on so. high a plane, and he misrepresented same to plaintiff. The situation presented is analogous to that in Sabia v. Sabia, 16 N. J. Super. 273 (App. Div. 1951). There it was held that where a spouse induces the other to engage in sexual intercourse with the fraudulent purpose of depriving the other of a cause of action for divorce for desertion, the act of intercourse is inoperative in legal effect. To break the period of desertion, the relationship must result from a genuine desire to effect a reconciliation. See Jaclcson v. Jackson, 93 N. J. Bq. 216 (E. & A. 1921).

Similarly here. Since defendant’s motives were insincere, and plaintiff was misled by them, elemental fairness would dictate that plaintiff’s status before the court should not be affected. It would be anomalous to deny a divorce sought on a non-fault ground for a circumstance that would not prevent a divorce on a fault ground. Certainly, the act of intercourse under the circumstances here present does not lead the court to find there is any reasonable prospect of reconciliation.

The statute requires that the parties live separate and apart in different habitations for 18 consecutive months, and that there be no reasonable prospect of reconciliation. The court finds these facts to have been established.

A judgment of divorce will be granted.


author: Kimmelman, J. S. C.

text:
    JOHN CERVASE AND ANTHONY IMPERIALE, PLAINTIFFS, v. KAWAIDA TOWERS, INC., A NEW JERSEY CORPORATION, LAWRENCE F. KRAMER, COMMISSIONER—NEW JERSEY DEPARTMENT OF COMMUNITY AFFAIRS AND CHAIRMAN NEW JERSEY HOUSING FINANCE AGENCY, AND THE CITY OF NEWARK, A MUNICIPAL CORPORATION, DEFENDANTS, AND B. J. BUILDERS OF NEW JERSEY, INC., INTERVENOR.
    Superior Court of New Jersey Law and Chancery Divisions
    Decided July 10, 1973.

      Mr. John Cervase, plaintiff pro se.

      Mr. Henry J. Franzoni, Jr., for plaintiff Anthony Imperiale (Messrs. Franzoni & Sussman, attorneys).

      Mr. Irving I. Vogelman, for defendant Kawaida Towers, Inc. (Messrs. Brown, Vogelman & Ashley, attorneys).

      Mr. Richard W. Vail, Deputy Attorney General of New Jersey, for defendant Lawrence F. Kramer, Commissioner, New Jersey Department of Community Affairs and Chairman, New Jersey Housing Finance Agency (Mr. George F. Kugler, Jr., Attorney General of New Jersey, attorney).

      Mr. David B. Rudd, Asst. Corporation Counsel, for defendant City of Newark (Mr. William H. Walls, Corporation Counsel, attorney).

      Mr. Theodore W. Geiser and Mr. Marie L. Fleder, for intervenor B. J. Builders of New Jersey, Inc. {Messrs. Hughes, McFlroy, Connell, Foley & Geiser, attorneys).
   Kimmelman, J. S. C.

Plaintiffs, residents and taxpayers of the north ward of the City of Newark, bring this action in lieu of prerogative writs to declare illegal and permanently enjoin the further construction of a 16-story medium to low income housing project now in the process of construction at 129-141 Lincoln Avenue, in their ward. The project, known as Kawaida Towers, is sponsored by a limited dividend nonprofit housing corporation, Kawaida Towers, Inc., incorporated pursuant to N. J. 8. A. 55:16 — 1 ei seq. Its total cost is financed by a 100% mortgage ($6,424,000) granted by the New Jersey Housing Finance Agency (HFA) under the authority of N. J. 8. A. 55:14J-1 ei seq. Kawaida Towers, Inc. was formed under the aegis of Temple of Kawaida, a black, African-oriented religious organization whose spiritual leader is LeRoi Jones, otherwise known as Imamu Baraka.

The residents of the predominantly white north ward generally became aware of the project, and in particular of its black sponsorship, following ground-breaking ceremonies held in August, 1972. By mid-Fovember construction had progressed to the stage where the footings and foundations had been substantially completed. At about that time neighborhood discontent arose and local residents began to demonstrate at the site. Plaintiffs thereupon instituted this litigation. The court temporarily enjoined construction for one week, primarily to afford an opportunity for the heated emotions to cool in order that an examination of the legal issues raised could be undertaken in a less excitable atmosphere. Thereafter, peaceful picketing was allowed at the site (see N. J. Const. (1947), Art. I, par. 18) under carefully prescribed conditions designed to allow workmen and equipment to gain access to the job. Fevertheless, further construction has been completely frustrated by reason of the inability of the general contractor to muster sufficient building and construction tradesmen willing to cross the picket lines for any meaningful work effort to be carried on.

In order to understand the legal challenges to Kawaida Towers, it is necessary to set forth the essential factual matters which occurred prior to the ground-breaking ceremonies.

1. On July 27, 1971 Mayor Gibson addressed a letter to the Fewark City Council forwarding an application which had been filed on behalf of Kawaida Towers, Inc. for tax abatement status for a housing project to be constructed at 129-141 Lincoln Avenue in the city. He expressed his finding that the proposed project met a pressing need for housing and conferred his approval for the granting of a tax abatement.

2. On August 4, 1971 Rocco Rossi, the secretary of the Fewark Board of Adjustment, addressed an official communication to one of the attorneys representing the project, indicating that the preliminary plan for the proposed 210-family apartment house had been approved.

3. On September 15, 1971 the municipal council of the city, on motion of north ward councilman Frank Mcgaro, unanimously adopted resolution 7E0 which approved the application of the promoters of Kawaida Towers, Inc. for construction of a project at 129-141 Lincoln Avenue, and pursuant to authorization contained in the Limited Dividend Non-Profit Housing Corporation Act, N. J. S. A. 55:16-1 et seq., granted a 50-year exemption from taxation. The pertinent text of the resolution follows:

WHEREAS, pursuant to It. S. 55 :16-1 et seq., the promoters of Kawaida Towers, Inc., represent that Kawaida Towers, Inc., will be incorporated and duly qualified under the State statute, and will be ajtproved by the Department of Community Affairs of the State of New Jersey; and
WHEREAS, the promoters of Kawaida Towers, Inc., have submitted to the Mayor an application for approval of a plan for the construction of a project located at 129-141 Lincoln Avenue in the City of Newark, and more particularly described in the application which accompanies, and by reference, is made a part of this resolution ; and
WHEREAS, the Mayor has submitted such application to the Municipal Council with his approval thereof, a copy of which approval is annexed hereto and made a part hereof; and
WHEREAS, the Municipal Council has determined that said project meets an existing need, as is more particularly provided for in R. S. 15:16-14 [55:16-14] of said Act, and has further determined that the project will be an improvement made for the purposes of clearance, replanning, development or redevelopment of a blighted area within the City, as is provided in R. S. 15:16-18 [55:16-18] of said Act;
NOW, THEREFORE, BE IT RESOLVED BY THE MUNICIPAL COUNCIL OF THE CITY OF NEWARK, NEW JERSEY:
1. That the application of the promoters of Kawaida Towers, Inc., on behalf of Kawaida Towers, Inc., for the construction of the project herein described, be and is hereby approved in accordance with the recommendations of the Mayor, subject to the proper incorporation of Kawaida Towers, Inc., according to the provisions of the State statute and subject to approval of the Department of Community Affairs of the State of New Jersey.
2. That exemption from taxation is subject to the approval of said plan and project by the Department of Community Affairs of the State of New Jersey.
3. Said exemption shall take effect for a period of 50 years in compliance with and subject to the provisions and conditions of R. S. 55 :16-1 et seq.

4. On November 1, 1971 the consulting report of an expert in the moderate-income housing field was submitted by the project’s sponsors to the HEA highlighting the features of the project and its feasibility.

5. On January 7, 1972 John C. Chieppa, project manager for the HEA, filed his investigative report with that agency, which again outlined the features of the project, the characteristics of the neighborhood and its feasibility for HEA financing.

6. On January 24, 1972 the Department of Community Affairs of the State of New Jersey, acting pursuant to the Revolving Housing Development Loan and Demonstration Grant Eund, N. J. 8. A. 52:27D-59 et seq., authorized a non-

. interest bearing cash advance not to exceed $92,078 to Kawaida Towers, Inc., to help defray certain preliminary land, legal, architectural and other developmental costs of the project.

7. On May 25, 1972 the Attorney General’s office approved the form of the certificate of incorporation for Kawaida Towers, Inc. as a limited-dividend, nonprofit housing corporation, and on May 26, 1972 the Public Housing and Development Authority in the Department of Community Affairs approved the filing of the certificate pursuant to N. J. 8. A. 55:16-7. Up to that time Kawaida Towers, Inc. had been a simple Title 15 nonprofit corporation formed solely for the purpose of having a corporate name to facilitate the developmental stage of the proposed project.

8. Thereafter, the project was finally approved by the HEA for mortgage financing, and on July 20, 1972 a closing was held. Title to the site was taken by Kawaida Towers, Inc., and it in turn executed in favor of the HEA a permanent mortgage, a mortgage loan agreement and a mortgage and regulatory agreement, all to .secure a mortgage note of $6,424,900 and to provide for construction advances and for the regulation of the ownership and operation of the project upon completion. The mortgage closing statement shows disbursements of $580,820.73 as follows:

1. Land: Abraham I. Mayer, et urn
($209,000, less seed
Money deposit of $20,000)
Balance of purchase price $189,000.00
Extras per agreement 16,000.00
Interest per agreement 8,733.22
Taxes per agreement
(1972 1st half) 1,777.28
Total $215,510.50
2. Architect: Bottelli, Ohland & Martins (Total: $140,182, less seed money of $18,527, and 80% of that equals) : 85,821.00
3. Soil Investigation: ($1200 included in $16,000 extra acquisition cost) -0-
4. Land Surveys: Borrie, McDonald & Watson ($150 ($600 included in $16,000 extra acquisition cost))
Balance 150.00
5. Project Planner: Moderate Income Housing, Inc. ($34,031, less seed money advanced of $5,616, and 80% of that equals) : 22,732.00
6. Legal Fees : Brown, Vogelman, Morris & Ashley; and Schanerman & Schanerman ($19,419, less seed money advanced of $3,286, and 80% of that equals) : 12.906.00
7. Field, Representative: 15,000.00
8. Insurance: New Jersey National Associates, Inc. 3,161.73
9. Agency Fee: New Jersey Housing Finance Agency 64.249.00
10. Financing Fee: New Jersey Housing Finance Agency 96.374.00
11. Title Insurance and Examination: New Jersey Realty Title Insurance Company
($17,687.50 ($1500 included in $16,000 extra acquisition cost) ) : Balance : 16,187.50
12. Department of Community Affairs: Revolving Money Fund advances
Appraisal: $ 500.00
Accounting: 300.00
Administration: 500.00
Architectural: 18,527.00
Land option: 20,000.00
Legal: 3,286.00
Loan consultant: 5,016.00
Total 48,729.00
GROSS AMOUNT REQUESTED $580,820.73
FROM BOND ANTICIPATION NOTE ACCOUNT $580,820.73

Initially, plaintiffs challenge the validity of the real estate tax exemption granted to Kawaida Towers. The basic authority for the granting of tax exempt status is found in N. J. Const. (1947) Art. VIII, § III, par. 1. The policy for granting such form of tax relief, which specifically contemplates the limited dividend corporation plan, is contained in the following general language:

The clearance, replanning, development or redevelopment of blighted areas shall be a public purpose and public use, for which private property may be taken or acquired. Municipal, public or private corporations may be authorized by law to undertake such clearance, replanning, development or redevelopment; and improvements made for these purposes and uses, or for any of them, may be exempted from taxation, in whole or in part, for a limited period of time during which the profits of and dividends payable by any private corporation enjoying such tax exemption shall be limited by law. The conditions of use, ownership, management and control of such improvements shall be regulated by law.

Plaintiffs argue that tax. exemptions may be granted by municipalities only to projects located within a legally declared blighted area as that term is defined, and refer by statute to N. J. 8. A. 40:55-21.1 et seq., known as The Blighted Area Act, which defines the term and prescribes the procedure precedent to a declaration of blight. It is conceded that Newark has determined and declared the existence of extensive blighted areas. Lincoln Avenue, the site of Kawaida Towers, has never been declared to be a blighted area. N. J. 8. A. 55:16-18, under which the tax exemption now in issue was granted, provides:

When the governing body of any municipality in which a project of a housing corporation or housing association is or will be located, by resolution finds that the project is or will be an improvement made for the purposes of the clearance, replanning, development, or redevelopment of any ’blighted area (as defined in any law of this State) within such municipality, or for any of such purposes, then such project and improvement shall be exempt from all property taxation; provided, that in lieu of taxes the housing corporation or housing association owning said project shall make to the municipality payment of an annual service charge for municipal services supplied to said project, in such amount, not exceeding the tax on the property on which the project is located for the year in which the undertaking of said project is commenced or 15% of the annual gross shelter rents obtained from the project, whichever is the greater, as may be agreed to by the municipality and the housing corporation or housing association and approved by the authority. [Emphasis supplied]

In the interpretation of this section the overall purpose of the statute must be kept in mind. The Legislature sought to provide for the construction of new dwellings at rents which families can afford, in order to meet the severe housing shortage existing in the State. The provision for housing is to make possible and to assist the clearance, planning or development of blighted areas. In order to carry out this purpose, courts are enjoined to adopt a liberal construction of the act. N. J. 8. A. 55 :16-21 provides: “The powers enumerated in this act shall be broadly interpreted to effectuate the purposes hereof and shall not be construed as a limitation of powers.”

Even without the direction for liberal construction, it would appear that the use in section 18 of the act of the wording “any blighted area” is most significant and, as will be seen, purposely differs from the wording contained in other housing acts which also provide for tax exemptions. Under the Limited Dividend Eon-Profit Housing Corporation Act it is not necessary that the housing project itself be constructed in a blighted area in order to secure an exemption from real estate taxation. EA where in that act is a housing project defined as one necessarily to be located within a blighted area. It is sufficient that the project he located in a municipality that has any blighted area, and further, that the project be an improvement made for the purpose of the clearance, re-planning, development or redevelopment of any blighted area. Obviously, the project in question will assist in the clearance, replanning and development of any one of a number of blighted areas in the city by relieving the pressure of people and housing therein. Such has already been found as a fact by the Newark Municipal CouncE in adopting resolution 7E0. Alleviating pressure in a blighted area by relocating people being displaced to other areas undoubtedly facilitates the clearance, replanning and development of the blighted areas. The Legislature clearly had this purpose in mind when it authorized municipalities to confer tax exempt status upon limited dividend non-profit housing corporations.

Unlike section 18 of the Limited Dividend Non-Profit Housing Corporation Act, N. J. 8. A. 55:16-18, other similar acts specifically confine the grant of tax exempt status to projects located within “a blighted area.” For example, The Urban Eenewal Corporation and Association Law of 1961, N. J. 8. A. 40 :55C-40 et seq. (popularly referred to as the “Fox-Lance Act”), defines a project as the undertaking of the redevelopment of “a blighted area,” N. J. 8. A. 40:55C-46; it sanctions tax exempt status for “improvement made in the development or redevelopment of a blighted area * * *.” N. J. 8. A. 40:550-65.

Similarly, The Urban Eenewal Non-Profit Corporation Law of 1965, N. J. 8. A. 40:55C-77 et seq., defines a project as the undertaking of the redevelopment of “a blighted area,” N. J. 8. A. 40:550-83; it likewise sanctions tax exempt status for “improvements made in the development or redevelopment of a blighted area * * N. J. 8. A. 40:550-97. See also, The Urban Eedevelopment Law, N. J. 8. A. 55:14E-1 et seq., applicable to projects for the clearance, replanning, development or redevelopment of “all or part of a blighted area,” N. J. 8: A. 55:14E-3, and again this law limits tax exempt status to “improvements made by way of rehabilitation or new construction, for the clearance, re-planning, development or redevelopment * * * of all or part of a blighted area * * N. J. 8. A. 55:14E-11.

In summary, the legislative distinction drawn between the Limited Dividend Non-Profit Housing Act and the several urban renewal statutes is obvious. The former act does not require a housing project by definition to be located within a blighted area; the latter acts uniformly do. The former act authorizes tax exempt status for a project located in a municipality where there is “any blighted area”; the latter acts of necessity confine the tax exemption to projects constructed within a blighted area. The Limited Dividend Non-Profit Housing Corporation Act is intended to be much broader in scope. The ills of a blighted area are not always confined to a particular neighborhood but can and do affect an entire municipality. Consequently, the act was designed to be as broad as the problem it purports to relieve. Thus, the tax exemption granted to Kawaida Towers by the Newark Municipal Council on September 15, 1971 was a valid governmental act pursuant to statutory authority.

Plaintiffs next contend that the failure to submit the project to the Newark Central Planning Board for approval is a fatal omission. Several councilmen who appeared at the trial testified that they were under the impression that planning board approval was necessary before the grant of a tax exemption and that such approval had been given. Councilman Megaro, the project’s sponsor, conceded however, that he had an indication from the corporation counsel that planning board approval was not necessary.

Begardless of the councilmen’s impression, advance planning board approval was not required. There is nothing in the Limited Dividend Non-Profit Housing Corporation Act which requires prior approval. Additionally, the New Jersey Housing 'Finance Agency Law of 1967, N. J. 8. A. 55: 14J-1 et seq., requires only that the agency, in considering an application for a loan, must itself give consideration to:

(a) The comparative need of the area to be served by the proposed project for housing for families of moderate income;
(b) The ability of the applicant to- construct, operate, manage and maintain the proposed housing project;
(c) The existence of zoning or other regulations to protect adequately the proposed housing project against detrimental future uses which could cause undue depreciation in the value of the project;
(d) The availability of adequate parks, recreational areas, utilities, schools, transportation and parking;
(e) The availability of adequate, accessible places of employment; and
(f) Where applicable, the eligibility of the applicant to make payments to the municipality in which the housing project is located in lieu of local property taxes. [Y. J. S. A. 55 :14-J-8]

The requirement of giving consideration to and taking cognizance of the existence of zoning or other regulations to protect adequately the proposed housing project against detrimental future uses -which could cause undue depreciation in the value of the project, cannot be construed as a mandate that the HEA refer the project to the local planning board. The fact of the matter is that the HEA project manager, John O. Chieppa, who was familiar with the north ward, conducted a site inspection for the agency. He gave consideration to all of the elements required by N. J. 8. A. 55:14J-8 and stated that in his opinion the project would upgrade the neighborhood. He was under no obligation to obtain advice or advance approval from the local planning board.

Plaintiffs further argue that the tax exemption, the Department of Community Affairs revolving housing development loan and the HEA mortgage financing itself all involve the expenditure of public funds which necessitate prior planning board approval in accordance with section 1.13 of the Municipal Planning Act (1953) N. J. S. A. 40:55-1.1 et seq. That section provides:

Whenever the planning board after public hearing shall have adopted any portion of the master plan, the governing body or other public agency having jurisdiction over the subject matter, before taking action necessitating the expenditure of any public funds, ineidental to the location, character or extent of one or more projects thereof, shall refer action involving- such specific project or projects to the planning board for review and recommendation, and shall not act thereon without such recommendation or until forty-five days after such reference hare elapsed without such recommendation. This requirement shall apply to action by a housing, parking, highway or other authority, redevelopment agency, school board, or other similar public agency, Federal, State, county or municipal. [Emphasis supplied I

Section 1.13 has no application to Kawaida Towers for two reasons. First, the legislative background of that section, coupled with reasonable construction of its wording, indicates, that it is intended to apply only to projects being directly constructed by a “a housing, parking, highway or other authority, redevelopment agency, school board, or other similar public agency, Federal, State, county or municipal,” all of which obviously require the expenditure of public funds. N. J. Turnpike Auth. v. Sisselman, 106 N. J. Super. 358, 365 (App. Div. 1969), certif. den. 54 N. J. 565 (1969).

Second, the “expenditure” of public funds within the meaning of the Municipal Planning Act is not involved in financing the construction of Kawaida Towers. The real estate tax exemption does not constitute an expenditure on the part of Newark. N. J. S. A. 55:16-18 requires that there be paid to the municipality in lieu of taxes an annual service charge for municipal services supplied to the project in an amount not less than what the taxes were on the basic land prior to construction, or 15% of the gross shelter rents, whichever is greater. Thus, the municipality suffers no outgo of funds nor does it lose any revenue which it would otherwise enjoy.

The revolving housing development fund loan was repaid at the mortgage closing and hence no expenditure of public funds was incurred in that respect.

Finally, the HFA mortgage' financing, which will amount to $6,424,900, cannot be considered an expenditure of public funds. The HFA was established in 1967 as a separate and distinct corporate body with power to issue bonds for the purpose of raising sufficient funds for the making of mortgage loans such as involved in this case. Its bonds are .sold to the public at large. They are not guaranteed by the State. The income thereon is exempt from taxation, thereby enabling the bonds to be sold at an interest rate currently yielding approximately 4% a year. This is substantially less than the yield on private corporate borrowings. Mortgage loans made by the HFA currently bear interest approximating 5)4% a year, the differential being used to defray a portion of the cost of running the HFA which receives no appropriation from the Legislature. The legislative scheme envisioned by N. J. 8. A. 55:14J-1 et seq. undoubtedly contemplates a self-sustaining public agency which may only make self-liquidating mortgage loans. Instead of manifesting the “expenditure” of public funds, there is evidenced the investment of funds in mortgage paper with every intention that the investment be recouped. As ordinarily understood, no one expects an expenditure to be repaid or recouped; it is a disbursement of funds with the expender receiving only the services, goods or other elements for which the expenditure is made. An expenditure has been defined as ‘the spending or using up of money.” Slurzberg v. Bayonne, 29 N. J. 106, 113 (1959). The receipt of a mortgage note or other evidence of an indebtedness in return for an interest-bearing investment hardly connotes an expenditure.

Plaintiffs next challenge the funding , of Kawaida Towers as public aid to a religious organization, thereby violating the constitutional mandate of separation of church and state. A similar challenge was unsuccessfully made with respect to the Educational Facilities Authorities Law, N. J. S. A. 18A :72A~1 et seq.; Clayton v. Kervick, 56 N. J. 523 (1970). That law likewise provided for the sale of bonds by an agency and the re-lending of the funds to facilitate the construction of educational facilities at both sectarian and nonsectarian institutions. The New Jersey Supreme Court held the activity of the agency to be a self-sustaining operation not involving the gift or grant of public funds. The funding was regarded not as an expenditure but rather as repayable borrowing and hence the court could find no “grant,” “subsidy” or “aid” to a religious organization. The court said:

Here we are dealing essentially with a banking operation conducted by an agency of the State. If the operation were as extensive as a general banking business, it could hardly be urged the establishment clause would bar every sectarian borrower. * * * Again, this is not to deny that the sectarian institution will derive a “benefit” from the governmental service. Obviously there is a benefit in obtaining something not provided by regular commercial sources, or in obtaining it at a lower rate of interest. Here, as in other areas, of commercial activity a State may enter, the State has credit and tax advantages which reduce the cost of money to it, and, further, since the State has no stockholders, it may offer its service without a profit. The consumer thereby may enjoy a dollar benefit. But the fact remains-that the State furthers a public purpose and the benefit to sectarian: interests is as incidental as in the sale of municipality supplied water or electricity. * *' * The question is only whether the establishment clause requires government to refuse to sell to a sectarian institution a financing service it offers to others who except for religious identification are similarly situated. We are satisfied the Constitution holds no such mandate. [56 N. J. at 530-531]

The Educational Facilities Authorities Law is directly analogous to the New Jersey Housing Finance Agency Law of 1967. Accordingly, Clayton v. Kervick, supra, controls the case at bar. The UFA law, related as it is to the financing of a limited-dividend, nonprofit housing corporation sponsored only incidentally by a religious organization, does not run afoul of the doctrine of separation of church and state. The benefit of the public funding inures to people who need housing rather than to a sponsoring religious group. In Hunt v. McNair, -- U. S. -, 93 S. Ct. 2868, -37 L. Ed. 2d - decided by the United States Supreme Court on June 25, 1973, a similar type of public funding through the issuance of revenue bonds was held not to be violative of the Establishment Clause of the First Amendment.

Plaintiffs next urge that the certificate of incorporation of Kawaida Towers, Inc. is unlawful. They argue that there is withheld from the board of directors any semblance of discretion or authority in the direction and control of the corporation, thereby rendering the board “sterile,” contrary to the General Corporation Law of New Jersey.

Article V of the certificate of incorporation of Kawaida Towers, Inc. contains the prohibition that “no one shall be elected as a member of the Board of Directors of the Corporation who is not a member in good standing of the Temple of Kawaida.” Article VIII (d) further provides that

Kach Director and shareholder of the Corporation must be a valid member of The Temple of Kawaida, a New Jersey Corporation formed pursuant to Title 16 of the Revised Statutes. Upon any Director’s or stockholder’s failure to maintain his membership in The Temple of Kawaida, the term of such Director shall terminate and the certificate of stock issued to such Director or Directors shall be canceled on the books of the Corporation and become null • and void. Said stock shall be automatically reissued to the successor stockholding Director, who is a member of The Temple of Kawaida. It is expressly understood that membership in The Temple of Kawaida shall be a condition precedent to the holding of stock or serving as a Director of The Temple of Kawaida.

The testimony at the trial indicates that there are certain basic tenets involved in the Kawaida religion but that in essence the final authority on all matters affecting the religion and the standing of its members is Imamu Baraka (LeKoi Jones) who is the “Supreme Being,” the “ultimate judge” and, in effect, the “Pope.” Consequently, since the directors of the corporation must always be and remain in good standing in the Temple of Kawaida, the argument is made that an unlawful “puppet-puppeteer” situation is created.

In Oleck, Non-Profit Corporations, Organizations and Associations (2d ed. 1965), § 218 at 450-451, the author states:

‘‘Sterilization" of the board of directors of a corporation is strictly forbidden, as a host of statutes and decisions make crystal clear. Preemption of the essential powers of the directors, by a stockholder’s agreement or by any other device (such as a foundation) is unlawful. A relation of directors to majority stockholders in which the directors are mere puppets in a “puppet-puppeteer” situation is improper and contrary to public policy. Statutes and eases permitting stockholders to limit the powers of directors to manage the corporation. in the case of an incorporated partnership, do not change the basic public policy as to control of corporate affairs by directors.
Such supine submission by the corporations’ respective boards of directors, of course, warrants (but rarely results in) quo warranto action by the Secretary of State or Attorney General.
Domination of one corporation (let alone several) by a shareholder or other outside “owner", if so complete that the corporation “had * * * no separate mind, will or existence of its own,” requires disregard of the corporate entity.

See also, 19 Am. Jur. 2d, Corporations, § 1147 at 578, where the general proposition is stated thusly:

Directors of a corporation must act in behalf of the corporation in its management and cannot enter into agreements, either among themselves or with the stockholders, by which they abrogate their independent judgments. A contract by a director of a corporation that limits or restricts him in the free exercise of his judgment or discretion, or that places him under direct and powerful inducements to disregard his duties to the corporation, * * i: and other(s) in the management of corporate affairs, is against public policy and void.

Cases such as Jackson v. Hooper, 76 N. J. Eq. 592, 603 (E. & A. 1910); Long Park Inc. v. Trenton-New Brunswick Theatres Co., 297 N. Y. 174, 77 N. E. 2d 633 (Ct. App. 1948), and Benintendi v. Kenton Hotel, Inc. 294 N. Y. 112, 60 N. E. 2d 829, 159 A. L. R. 280 (Ct. App. 1945), relied upon by plaintiffs, no doubt support the foregoing corporate principles. However, they are inapposite here.

The charge that the board of directors of Kawaida Towers, Inc. is dominated by an outside power, LeRoi Jones (Bar-aka), is without practical substance. Whatever power Jones might ordinarily possess to dominate the board has been effectively dissipated by legislative design in instances where a housing corporation is financed by the HEA. Article II'(k) of the certificate of incorporation provides that the affairs of Kawaida Towers, Inc. shall be regulated by the HEA as to rents, tenant occupancy, method of operation and return. A fair reading of its certificate of incorporation indicates that the corporation cannot engage in any business other than the operation and management of Kawaida Towers. As a consequence, the only business which can be managed by the board of directors is subject to heavy regulation by the HEA. N. J. 8. A. 55:14J-9 delegates to the HEA broad powers in rather explicit terms to regulate and control all affairs pertaining to housing projects financed by it. In that regard, a mortgage and regulatory agreement was required to be executed by Kawaida Towers, Inc., in favor of the HEA on July 20, 1972. The document was recorded in the office of the Register of Essex County on July 21, 1972 in Mortgage Book 4509 at page 124. It contains 12 pages of detailed limitations, restrictions and management functions imposed upon the corporation and its board, concluding in paragraph 19 with the right and power to

(d) Remove any and all of the existing officers and directors of the Mortgagor and appoint such person or persons who the Agency in its sole discretion deems advisable, including officers and employees of the Agency as new officers or directors to serve in the place of those removed;

or to

(e) Apply to any court, State or Federal, for specific performance of this Agreement, for an injunction against any violation of the Agreement for the appointment of a receiver to take over and operate the Project in accordance with the terms of this Agreement, or for such other relief as may be appropriate, since the injury to the Agency arising from a default under any of the terms of this Agreement would be irreparable and the amount of damage would be difficult to ascertain.

Therefore, passing over the very questionable status of plaintiffs to complain of or make inquiry into regularity of the corporate powers to be exercised by Kawaida Towers, Inc., DiCristofaro v. Laurel Grove Memorial Park, 43 N. J. Super. 244, 250 (App. Div. 1957), it would appear that the board of directors has already been “sterilized,” not by the untoward influence of an outside force but rather by express statutory design, in order to fully protect the investment of public funds. Plaintiffs’ challenge on this point must therefore fail.

Although not specifically designated in the pretrial order as an issue, it was developed and argued at the trial that the location of Kawaida Towers at 129-141 Lincoln Avenue offends the official master plan of the City of Newark adopted in 1965. According to Paul Cavlcchia, a member of the central planning board, the master plan projects Lincoln Avenue as a medium density area with a range of 40 to 79 dwelling units an acre. Kawaida Towers, a 16-story high-rise, would have 210 dwelling units on a site slightly less than two acres in area, which would appear to be at variance with the master plan projection for Newark. This fact, however, is without legal significance.

A master plan is simply a proposal for the planned future growth and development of a municipality. N. J. S. A. 40:55 — 1.11. It need only be adopted by the local planning board. Approval of the plan by the governing body is neither required nor contemplated by the statute. It remains nothing more than a plan unless implemented by the municipal governing body in the form of zoning enactments. Until a master plan or parts thereof have been legislatively adopted by the governing body, its proposals have no binding effect or legal consequences. Its proposals exist only as a hopeful declaration of policy expressing future guidelines for the municipality. Cochran v. Planning Board, Summit, 87 N. J. Super. 526, 535-536 (Law Div. 1965).

In the absence of legislative sanction of the master plan, Kawaida Towers need only comply with the current zoning ordinance of Newark. That ordinance places 129-141 Lincoln Avenue in a fourth residential district where highrises not exceeding 140' in height are permitted on the size of the lot in question. The zoning board’s letter, previously referred to, establishes the requisite compliance.

The remaining legal arguments advanced by plaintiffs have been considered but found to be insubstantial.

Inescapable is the fact, according to the testimony of Councilman Megaro, that the matter of Kawaida Towers was discussed at length on several occasions by the city council before the adoption of the tax exemption resolution. The councilmen did not deliberate in a vacuum, nor were they stampeded. Their decision was a valid exercise of the legislative discretion vested in them by their constituents.

Plaintiff John Cervasé is convinced that Kawaida Towers must be stopped because it will breed crime and introduce violence into the neighborhood. There is no doubt that highrise apartment buildings have come under attack in recent years as a major source of crime. According to a New York University research project reported in the New Yorlc Times edition of October 26, 1972, at page 45, there is a dramatic correlation between the height of a building and the crime rate: “The higher the building, the higher the crime rate.”

Unfortunately, this court can function neither as sociologist nor statistician, and thus cannot legally assume that the dire consequences predicted by plaintiff Cervase will come to pass. On the contrary, this court must assume that the future tenants of Kawaida Towers will be law-abiding citizens. Under our system of jurisprudence, people are presumed innocent of crime and it would be unthinkable for a court to condemn an entire project for crimes not yet committed.

The validity of high-rise housing projects as a governmental instrumentality utilized to help alleviate the shortage of low and moderate income living quarters is an issue to be debated and decided in a forum other than the courts. For the purpose of this case at least, that issue has been decided by the UFA and the Newark City Council. Accordingly, it is not for this court to entertain questions raised as to the wisdom of such official determination. Courts cannot usurp the functions of elected representatives, nor can courts invade the authority delegated by the Legislature to its agencies. It is not for courts to speculate upon or anticipate the social effects which will result from municipal or legislative action. In short, the social or economic belief of a court cannot be substituted for the judgment of officials who are either elected or appointed to exercise that judgment. Ferguson v. Skrupa, 372 U. S. 726, 83 S. Ct. 1028, 10 L. Ed. 2d 93 (1963); A. & B. Auto Stores, etc. v. Newark, 59 N. J. 5, 19 (1971); Frank v. Briel, 96 N. J. Super. 67, 71 (Ch. Div. 1967); Grenewicz v. Ligham, 34 N. J. Super. 1, 11 (App. Div. 1955).

One final observation is in order. In bringing this action, plaintiffs have plainly failed to comply with the applicable time limitations for challenging action of governmental bodies. B. 4:69. They are clearly out of time. Nevertheless, the questions involved have generated sufficient public interest and therefore have compelled the court to disregard the tardiness of the litigants. The importance to the community of a decision based upon the merits of this controversy has clearly motivated the court’s determination to avoid a dismissal of the action based upon procedural technicalities. Jacobs v. New Jersey State Highway Authority, 54 N. J. 393, 396 (1969); Kent v. Mendham, 111 N. J. Super. 67, 76 (App. Div. 1970) : Riddlestorffer v. Rahway, 82 N. J. Super. 36, 42 (Law Div. 1963).

By reason of the foregoing the consolidated complaints will be dismissed with prejudice and without costs.

      See, e. .q., ‘The Importance of New Planning Legislation to Your Municipality,” by Herbert II. Smith, Chief, State Planning Section, New Jersey Department of Conservation and Economic Development, 30 N. J. Municipalities, 7, 10 (November 1953).

      See the statement by Paul N. Ylvisaker, Commissioner of the Department of Community Affairs, on March 30, 1967, before a Joint Senate and Assembly committee public hearing on Assembly Bills 757, 763, 765, 766, 767, 768 and 804:
      “This is not a public program in the sense that the state will do construction or operate rental units, and this is not an expenditure program. It is an investment program which does not tax the budget of the state. * *’ *” (99A of transcript).


author: Schwartz, L., J. C. C.,

text:
    YELLOW CAB CORPORATION OF PASSAIC AND CLIFTON, A NEW JERSEY CORPORATION, PLAINTIFF, v. THE CITY COUNCIL OF THE CITY OF PASSAIC, A MUNICIPAL CORPORATION, DEFENDANT.
    Superior Court of New Jersey Law Division
    Decided June 26, 1973.

      Mr. H. Ronald Levine for plaintiff.

      Mr. Joseph F. Scancarella for defendant (Mr. William Schey appearing).
   Schwartz, L., J. C. C.,

Temporarily Assigned. Plaintiff, a taxicab licensee in the City of Passaic, instituted this action seeking judicial review of the refusal of the local governing body to increase the authorized taxi fare by adopting an ordinance establishing a rate which plaintiff alleges is essential for it to remain in business.

The authority and procedure by which a municipality may engage in rate-making is legislatively uncharted.

When the matter originally came before the court it was remanded to the municipal council because an inadequate record had been made of the initial proceedings before the public body, which resulted in the adoption of an ordinance establishing a flat-rate taxi fare of $1.15 per trip within the city instead of the rate of $1 per trip which previously had prevailed.

At the new hearing plaintiff presented financial data for the purpose of supporting its original request for a flat-rate charge of $1.50 per trip. The governing body adopted a resolution denying the application without expressing any factual or legal basis for its decision.

What authority is delegated to municipal bodies by the Legislature in the sphere of taxicab regulation?

N. J. S. A. 48:16-3 requires the owner of a taxicab to obtain the consent of the governing body before operating his vehicle along any street in a municipality and also makes provision with respect to insurance requirements.

N. J. S. A. 40:53-l provides:

The governing body may make, amend, repeal and enforce ordinances to license and regulate:
a. All vehicles used for the transportation of passengers, baggage, merchandise, and goods and chattels of every kind, and the owners and drivers of all such vehicles; * * * [Emphasis supplied]

Authority to implement these powers may be found in N. J. 8. A. 40:48-3:

Any municipality may make, amend, repeal and enforce such other ordinances, regulations, rules and by-laws not contrary to the laws of this state or of the United States, as it may deem necessary and proper for the good government, order and protection of persons and property, and for the preservation of the public health, safety and welfare of the municipality and its inhabitants, and as may be necessary to carry into effect the powers and duties conferred and imposed by this subtitle, or by any law.

The purpose of the statutes should not be frustrated by an unduly narrow interpretation of the power to “regulate.” Authority delegated to an administrative agency should be construed so as to permit the fullest accomplishment of the legislative intent. Cammarata v. Essex County Park Comm’n, 36 N. J. 404, 411 (1958); 43 Am. Jur., Public Administrative Law, §§ 4, 35.

In Kirzenbaum v. Paulus, 51 N. J. Super. 186 (Law Div. 1958), the court, in interpreting N. J. S. A. 40:67-1 which provided for the delegation of the power to “regulate” structures on the streets, permitted the construction of á' sidewalk bank depository, saying:

In the opinion of this court the term “regulate” in the cited statute is held to constitute a delegation of power by the Legislature to the municipality to authorize and encumbrance such as is here contemplated if, in the opinion of the municipal body, such authorization is in the public interest, with particular reference to the 'improvement of‘.traffic conditions, and thereby affecting the safety and welfare .of its citizens, [at 195]

To regulate means “to fix, ■ establish or control; to. adjust by rule, method or established mode; to direct by rule or restriction; to subject to governing principles or laws * * *.” Black’s Law Dictionary (3d ed. 1933), 1519; Jamesburg v. Hubbs, 6 N. J. 578, 585 (1951).

The court recognizes the enactment of a taxi fare ordinance as representing a proper exercise by the governing bbdy' of its police power to regulate, as it is designed to serve an essential and public interest, even though i't interferes with the freedom of contract between contracting parties, the cab company and the passenger. See Inganamort v. Fort Lee Continental Gardens, Inc., 62 N. J.. 521, 537 (1973), as to rent control ordinances; N. J. 8. A. 33: 1-40 as to municipal regulation of the conduct of businesses licensed to sell alcoholic beverages.

The constitution provides no restraint against the delegation to an administrative agency of a considerable measure of discretionary authority to administer a statute enacted pursuant to the police power of the State, provided the statute establishes a sufficient basic standard and a definite and certain rule of action for the guidance of such agency. Public Service Coordinated Transport v. State, 5 N. J. 196 (1950).

Plaintiff has not raised the issue whether, by the delegation of the power to “regulate,” the power of the governing body to fix prices or rates is implied, and the court will not express an opinion thereon. However, in other areas, the grant of police powers by the Legislature in N. J. S. A. 40 :48-2, without requiring stated standards, has been sustained, i. e., Bd. of Health, Weehawken Tp. v. N. Y. Central R. Co., 4 N. J. 293, 300-301 (1950); Fred v. Mayor, etc., Old Tappan Borough, 10 N. J. 515 (1952). Trial courts will be obliged to adhere to the “expansive view” of home rule as related to the implied and incidental powers invested in local government by N. J. Const. (1947) Art. IV, § VII, par. 11, following Inganamort v. Fort Lee Continental Gardens, Inc., supra, 62 N. J. at 533.

Plaintiff challenges not only the decision of the council but also the manner in which its petition for relief was heard and resolved.

The method of providing due process under law for specific state agencies has been prescribed in statutes dealing with the Public Htilities Commission (N. J. S. A. 48:2-1), with the Milk Control Board (N. J. 8. A. 4:12A-9), and with many other state agencies which are given rule-making powers, i. e., Board of Optometry (N. J. 8. A. 45:12-4), and N. J. 8. A. 2G :2C-8 conferring power of air pollution control on the State Department of Health.

Upon the adoption of the Administrative Procedure Act (N. J. 8. A. 52:14B), effective September 1, 1969, all of the departments and agencies of the Executive Branch of the State Government and other specified state agencies became subject to the rule-making and procedural requirements of the act and to the New Jersey Administrative Code to be promulgated by the Division of Administrative Procedure of the Department of State.

However, with limited exceptions, i. e., N. J. S. A. 40 :60-51.2, requiring a “public hearing” to release a restriction in a deed delivered by a governing body, N. J. 8. A. 40:47-6, outlining disciplinary hearing for police, and other specific statutes, the Legislature has not provided any administrative procedure for the guidance of municipal agencies as Congress has provided under the Federal Administrative Procedure Act for federal agencies, and as has been provided for state agencies by N. J. 8. A. 52:1413.

Because of the paucity of decisional law respecting the "due process” applicable to the area of local legislative powers as distinguished from gwasi-judicial power, it is necessary to review the nature of the administrative authority which occupies the gamut between these two poles.

At one end of the spectrum of municipal regulation is the concept of gmsi-judicial power, such as resides in boards of adjustment, planning hoards and governing bodies in zoning and planning matters, short of adoption of municipal ordinances. Applicants in this area are entitled to a judicial trial type of hearing, including notice, examination and cross-examination of witnesses, and an administrative determination grounded on competent and credible proofs and represented by appropriate findings based thereon. Tomko v. Vissers, 21 N. J. 226, 238-241 (1956).

At the other end of the axis of municipal regulation is the general classification of legislative or gwasi-legislative powers. Eor the purpose of determining the present issue, the ministerial powers and other varying positions of administrative action of a municipal governing body need not be considered.

When an administrative agency acts legislatively, it should conduct its proceedings as does a Legislature. The strictures of judicial procedures are wholly unrelated and unadapted to the promulgation of rules and regulations. [Consolidation Coal Co. v. Kandle, 105 N. J. Super. 104, 113 (App. Div. 1969), aff’d 54 N. J. 11 (1969)].

The elements of fact-finding as required in gwasi-judicial proceedings are entirely inappropriate to administrative proceedings of a strict legislative nature, except where the Legislature requires such findings to be made before the agency can act. Cf. In re Plainfield-Union Water Co., 11 N. J. 382, 392, 395 (1953); Abbotts Dairies v. Armstrong, 14 N. J. 319, 331-334 (1954).

* * Ii tlie measures invoked tend to serve a legitimate interest of society, the wisdom oí the course taken is not ordinarily a justiciable S sic 1 question. When the subject lies within the police power of the State, “debatable questions as to reasonableness are not for the courts but for the legislature which is entitled to form its own judgment.” [Citation omitted]. The range, of the State’s discretion in promoting the security and well being of the public “accords with the subject of its exercise." [Citation omitted]. Where the end is one to which legislative power may properly be directed, it is enough “if it can be seen that in any degree, or under any reasonably conceivable circumstances, there is an actual relation between the means and the end.” [Citation omitted]. [Abelson’s Inc. v. N. J. State Board of Optometrists, 5 N. J. 412, 420 (1950) ; Consolidation Coal Co. v. Kandle, supra.]

When a statute is silent as to. the mode of procedure, a governing body is not required to hold a judicial type of hearing before acting legislatively. Ufheil Const. Co., Inc. v. Oradell, 123 N. J. Super. 268, 273 (App. Div. 1973); In re Port Murray Dairy Co., 6 N. J. Super. 285, 301 (App. Div. 1950).

Yet, while rate-making is labelled a legislative process, the due process clause of the U. S. Constitution provides that no one shall be deprived of bis property without due process of law, and the “due process” which must be accorded in the establishment of a rate includes the affording of an opportunity for a hearing. Si. Joseph, Stock Yards Co. v. United States, 298 U. S. 38, 50, 56 S. Ct. 720, 80 L. Ed. 1033 (1935).

Railroad rates have long been regulated under the interstate commerce power, prices of milk under the police power, and in time of war prices generally have been controlled under the war power. The procedure by which the requirements of due process have been met has varied. In respect to the public regulation of the rates of private concerns in peacetime, which is what we have here, the minimum requirements for a hearing are clearly established. Jordan v. American Eagle Fire Ins. Co., 83 U. S. App. D. C. 192, 169 F. 2d 281 (D. C. Cir. 1948).

In this instance rate-making combined the elements of policy making and adjudication, being a blend of prescription for the future with the disposition of a particular, immediate petition.

When rates are to be established, frequently adjudicative facts as to a particular present situation are in dispute which would call for a trial-type of hearing, and yet the board may also weigh related considerations involving legislative or executive action.

While fact finding may to some extent be involved in the process, the due process requirements of confrontation and cross-examination, the hallmarks of the judicial inquiry, are not necessarily present. Rather the quasi-legislative inquiry tends to consult broad relevant data available from surveys, studies and published experience, free from the limitations of confrontation and cross-examination. Initially, the quasi-legislative inquiry depends on staff work. [Jones v. District of Columbia, 116 U. S. App. D. C. 301, 323 F. 2d 306, 309 (D. C. Cir. 1963)]

In the present case no staff work was prepared or presented at the public hearing by the council, nor was any study made of the data organized by the plaintiff in support of its position.

In the leading case of Public Service Coordinated Transport v. State, 5 N. J. 196 (1950), Chief Justice Vanderbilt said (at 214) “It is well recognized that rate making is a legislative and not a judicial function * * However, since the Legislature specifically provided in N. J. S. A. 48:2-21(b) that the Board of Public Utility Commissioners may “fix just and reasonable individual rates” the court held that where the reasonableness of the fixed rate is challenged, the court is duty-bound to weigh the evidence adduced at the hearing and resolve for itself the issue of reasonableness.

The court emphasized that

* * rate making is not an adversary proceeding in which the applying party needs only to present a prima facie case in order to be entitled to relief. There must be proof in the record (of the Commission) not only as to the amount of the various accounts but also sufficient evidence from which the reasonableness of the accounts can be determined, [at 219J,

and the applying party has the burden of proof in this regard.

There is no legislative direction, however, as to the procedure to be followed in the fixing of rates by municipal agencies.

In Laba v. Newark Board of Education, 23 N. J. 364, 382 (1957), the Supreme Court, in referring to the broad powers vested in school governing bodies, said: “[a]bsent specific legislative direction, the administrative tribunals may mould their own procedures so long as they operate fairly and conform with due process principles.”

This holding is in accordance with the general principles of administrative law. See 2 Am. Jur. 2d § 437, at 245; 2 Davie, Administrative Law Treatise, § 11.02, at 41 (1958).

Fair procedure would appear to require the adoption of the rule of reasonableness in furtherance of the broad goal of regulation. Molyka v. McCorkle, 58 N.J. 165, 179 (1971). The fair play, traditional in Anglo-American justice, rejects arbitrary action and insists upon a balancing of the interests of the commuting public which requires protection against threatened consequences of unrestrained practices of the taxi business, and a consideration of the effects of economic maladjustment which may threaten to destroy the taxi industry or diminish the quality of its service and deprive the community of a necessary mode of transportation.

Administrative agencies are always expected to exercise their responsibility upon reasoned judgment. While rate-making power involves a consideration of large questions of public policy and business wisdom, its conclusions must be factually supported, thus blending quasi-judicial with gwessi-legislative functions.

In order to make a valid judgment as to the reasonableness of the rate in the present case, the local board was required to look behind the figures shown by the applicant’s books and to make comparison -with parallel situations, as well as experience in other municipalities. Lacking these tests, the record would lack the evidence upon which a proper fare base could be determined, bearing in mind that the hearing is primarily informational to assist the council to develop a reasonable rate or fare structure. See Nassau County v. Metropolitan Transp. Authority, 57 Misc. 2d 1025, 293 N. Y. S. 2d 1017, 1021 (Sup. Ct. 1968).

The hearing need not conform strictly with common-law rules of evidence or procedure. Cf. Norwegian Nitrogen Products Co. v. United States, 288 U. S. 294, 53 S. Ct. 350, 77 L. Ed. 796 (1933); United States v. Nugent, 346 U. S. 1, 73 S. Ct. 991, 97 L. Ed. 1417 (1953); In re Port Murray Dairy Co., supra, 6 N. J. Super. at 295. Nevertheless, an essential of the fair hearing contemplated is that the evidence or material upon which the body may rely to support its order be disclosed and made part of the hearing record, with opportunity of refutation afforded to the interested parties. Cf. Krauss v. A. & M. Karagheusian, Inc., 13 N. J. 447 (1953); In re Plainfield-Union Water Co., 11 N. J. 382 (1953); Family Finance Corp. v. Gough, 10 N. J. Super. 13 (App. Div. 1950). The determination must be accompanied by adequate findings which decide the basic facts and embody its conclusions resting thereon. These findings are of the utmost importance, not only in insuring a responsible and just determination by the board, but also in affording a proper basis for effective judicial review. See Household Finance Corp. v. Gaffney, 11 N. J. 576 (1953); Abbotts Dairies v. Armstrong, supra, 14 N. J. at 332.

In re Marion Bus. Transp. Co., 53 N. J. Super. 308 (App. Div. 1958), the court said:

We have been urged to make our own findings upon the record. The field of public utility regulation is a highly complex one. The Legislature has allocated to those highly experienced the obligation and prerogatives of rendering judgment. On the basis of this record it is not appropriate for us to make our own findings of fact, [at 314; citations omitted]

Cf. New Jersey Bell Telephone Co. v. Communications Workers, etc., 5 N. J. 354, 378 (1950) ; 2 Davis, Administrative Law, supra, at 528. Similarly, the local authority entrusted with the power of taxi regulation must determine the facts at issue.

* * * On judicial review the court will not substitute its independent judgment for that of the board but will confine its inquiry to the ascertainment of whether the evidence before the board furnished a reasonable basis for its action. In re Greenville Bus. Co., 17 N. J. 131, 137-138 (1954) [citations omitted]

Where the record presented to the reviewing court is inadequate and the administrative agency has acted under misapprehension regarding its function, the proper course is to remand the matter for rehearing and determination. Kotlarich v. Ramsey, 51 N. J. Super. 520, 543 (App. Div. 1958).

In order to expedite the ultimate conclusion of the appeal, we are remanding the record to the governing body so that it may supplement the record by its own calculation of income, operating and other expenses, allowance for depreciation, experience in neighboring communities, value of tangible and intangible properties, and other facts leading to a proper rate base and reasonable rate of return to the licensee. The applicant shall have the opportunity to be heard and the council will make its fact findings and conclusions within 30 days of the order of remand I will issue.

Plaintiff will have seven days after receipt of notice of the council’s decision to file a brief with the court if it seeks review of the municipality’s determination. Defendants will have seven days after service of a copy of plaintiff’s brief to file an answering brief. The appeal will be thereafter set down for further argument and all issues properly raised will he considered.