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

text:
    IN THE MATTER OF THE ESTATE OF CHARLES F. SEABROOK, DECEASED. THE BANK OF NEW JERSEY AND LEO P. DORSEY, TWO OF THE EXECUTORS UNDER THE WILL OF CHARLES F. SEABROOK, APPELLANTS, v. WESTMINSTER CHOIR COLLEGE, BOARD OF EDUCATION OF UPPER DEERFIELD, PRINCETON THEOLOGICAL SEMINARY AND THE DEERFIELD PRESBYTERIAN CHURCH, CROSSAPPELLANTS-RESPONDENTS, AND BELFORD L. SEABROOK, JOHN W. SEABROOK, ET ALS., CLARENCE B. McCORMICK, ROBERT A. SIDUR AND DONALD G. McALLISTER, REMAINING EXECUTORS UNDER THE WILL OF CHARLES F. SEABROOK, ET ALS., RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Submitted November 5, 1973—
    Decided February 25, 1974.

      Before Judges Conford, Handler and Meanor.

      Messrs. Hyland, Davis & Reberkenny, attorneys for appellants The Bank of New Jersey and Leo P. Dorsey (Mr. William F. Hyland, of counsel).

      Messrs. Archer, Greiner and Read, attorneys for cross-appellants-respondcnts Westminster Choir College and Board of Education of Upper Deerfield (Mr. Peter E. Driscoll, of counsel).

      Messrs. Meyner and Wiley, attorneys for cross-appellants-respondents Princeton Theological Seminary and Deerfield Presbyterian Church (Mr. Thomas D. Hogan, on the brief).

      Messrs. Clapp & Eisenberg, attorneys for respondents Belford L. Seabrook, as executors under the will of Norma Dale Seabrook, and John M. Seabrook and C. Courtney Seabrook, individually (Mr. Alfred C. Clapp, of counsel).

      Messrs. Rickman, Berry, Ferren & Tyler, attorneys for respondents Orlando, Holweiler & Yampell, Esqs., attorneys for the Estate of Charles F. Seabrook (Mr. Grover C. Rickman, on the brief).

      Messrs. Crowell and Otten, attorneys for respondents Patricia B. Otten et al.

      Messrs. Shapiro, Brotman, Eisenstat and Capizola, and Mr. Santo Salvo and Mr. Frank Ferry, attorneys for respondents Clarence 13. McCormick, Donald Q. McAllister, Robert A. Sidur and South Jersey National Bank, as executors of the estate of Samuel P. Orlando.

      Messrs. Stryker, Tams & Dill, attorneys for respondent Thelma Seabrook Sidur.

      Mr. David L. Horuvitz, for respondents Belford L. Seabrook, individually and Charles F. Seabrook, II.
   The opinion of the court was delivered by

Conford, P. J. A. D.

These are appeals from that part of an order. entered in the Chancery Division fixing executors’ commissions on corpus and fees for counsel to the executors in the administration of the estate of Charles E. Seabrook, who died October 20, 1964. Certain of the appellants originally appealed also the denial by the court of a demand by income beneficiaries that earnings of a corporation wholly owned by the testator, C. E. Seabrook Company, be allocated to income of the estate rather than corpus. This issue has been settled pending the appeal. The remaining issues are:

(a) whether the commissions awarded to executors are excessive;
(b) whether such commissions are inadequate, and
(c) whether the counsel fees awarded to the attorneys of the executors are excessive.

The background of the matter may be stated as follows. The testator’s principal asset at death consisted of all the shares of stock of the corporation named above (“company”) and several subsidiaries thereof. The company owned 12,000 acres of land in Cumberland County, most of which was farmland under long-term lease for farming purposes to Seaman Brothers. The subsidiary companies operated housing consisting of several hundred units and a large horticultural nursery, both fairly profitable operations and well run under the salaried ($21,000 per annum) management of Donald G. McAllister, who is also one of the six executors of the estate. The other executors are Bank of New Jersey (formerly Camden Trust Company); Samuel P. Orlando (until his decease in the Spring of 1972), who was the company’s attorney at $5,000 per annum and served also as counsel to the estate; Clarence B. McCormick, a banker, who also became president of the company after the testator’s death at a salary of $9,000 per annum; Leo P. Dorsey, a New York lawyer, and Robert A. Sidur, son-in-law of Mr. Seabrook, who received a salary of $6,000 as head of the housing subsidiary but whose principal occupation was elsewhere. These men also served during the administration as the board of directors of the company.

There was a contest over probate of the will by next-of-kin claiming fraud and undue influence by Mr. Orlando and Mr. Dorsey. After 2%2 years of litigation the matter was settled by an increase of the distributive share of the widow and reduction of those of the several charitable beneficiaries.

The executors qualified as such about April 1967, after the will contest, and have continued as executors until the present time, bid: the active administration largely subsided in November 1971 when the corporate shares (inclusive of the subsidiary corporations) were sold in bulk for $9,000,000 net (free of brokerage), and the proceeds were converted into United States Treasury bills.

The executors sought corpus commissions of $922,455.38, or the maximum statutory rate of 5% for one executor and 1% for each of the five additional executors on corpus receipts of $9,224,553.83. N. J. S. A. 3A :10-2. The trial court allowed the mandatory 5% of the first $100,000 and 2/4% of the remainder, and an additional 2% by reason of there being more than one fiduciary, or a total of $417,604.93.

The representatives of Mr. Orlando sought a counsel fee for his law firm of $300,000 and were allowed by the trial court $200,000.

I

N. J. S. A. 3A:10—1 provides that allowance of commissions on corpus in excess of $100,000 to testamentary fiduciaries "shall be made with reference to their actual pains, trouble and risk in settling the estate rather than in respect to the quantum of the estate.” N. J. S. A. 3A:10-2 sets forth a maximum percentage of allowance on corpus over $100,000 coming into the fiduciary’s hands: i. e., 5%, and, in addition, regardless of the amount of corpus, a maximum rate of 1% additional for each fiduciary in excess of one.

In In re Bristle, 138 N. J. Eq. 476 (E. & A. 1946), it was said in relation to the same statutory provision:

Obviously, the maximum commission was intended to be applied to administrations involving the maximum amount of trouble and risk, [at 477]

In that case the appellate court reduced an award of corpus commissions from 3y2% to 2^%, pointing out, among other things, that the estate had “for its size, entailed a simple administration”. Iiid.

The foregoing thesis is the point of departure of the comprehensive guidelines set out by the Supreme Court in In re Estate of Moore, 50 N. J. 131 (1967), for determining corpus commissions of testamentary fiduciaries. It was there emphasized that “actual pains, trouble, risk, and services rendered” is the principal factor by which the court'determines what portion of the statutory maximum rate should be applied to the statutory base — i. e., the gross estate received at inception plus gross receipts during the administration. Id. at 145. Thus, in deciding how much of the 5% maximum rate here allowable should be applied to the base of $9,124,553.83 — gross estate less $100,000 (assuming an estate with one executor), one must determine what degree of maximum “pains, trouble and risk” was experienced by these particular executors. If pains, trouble and risk here were average, neither high nor low, and no other depreciating factor were present, a rate of roughly half the maximum of 5 %, or from 2y2% to 3%, would be appropriate.

We conclude that pains, trouble and risk here were average ■—■ i. e., neither high nor low but moderate. We agree with the finding of the Chancery Division judge that “for the most part the services rendered were * * * a caretaking operation”. Apart from the care and responsibility involved in the major decision to sell off the company shares in 1971 and in the consummation of that transaction, running this estate involved the routine matters of attending to tax returns, including settling a dispute over valuations, collecting income and paying expenses, and the other general miscellany of an uncomplicated administration. Payment of taxes and the expenses of a prior will contest did, however, involve arranging for loans from the company to the executors, retiring some of the corporate stock and effecting a loan from a savings and loan association, but these matters presented no great difficulties.

There was also some oversight of the operation of the business of the company, but the executorial trouble in that regard was fairly nominal in view of the facts that the business was well run by McAllister, McCormick and Sidur in their separately paid capacities as employees and officers of the company, and that at least its routine legal problems were being handled by Orlando in his capacity as paid counsel for the company.

There is no doubt that good judgment and care were exercised in respect of the final sale. But the great credit the executors argue is due them for having made that sale possible by refusing earlier offers to sell parts of the land is refuted by the fact that they had no real choice in the matter until August 1971, when the lessee of the bulk of the land failed to exercise its option for lease renewals which could have extended 15 years beyond 1972. The evidence in the case is uniform that this factor effectively blocked the chance of any earlier advantageous sale of the property prior to the expiration of the lease option. The best offers received by the executors previously were from 40% to 50% of the ultimate sale price of $9,000,000.

The appealing executors argue their allowance should reflect a reward for their efforts in having resisted the will contest and rejected inadequate overtures for settlement thereof. We pass the point that this seems not to have been urged before the trial court. The contention is without merit. These fiduciaries had no responsibility in the estate until after the will contest, when they qualified, although the corporate fiduciary was one of two administrators pendente lite which were compensated for services as such, as was their counsel in that behalf. Two of the present individual executors were under attack for alleged fraud and undue influence in the matter of the will, and it was obviously to their personal interest to resist those charges. While there may be law in some other jurisdictions that it is the duty of an executor named in a will to defend and establish the will as against those who oppose its probate, see 95 O. J. S., Wills, § 324 at 158, no New Jersey authority is cited by the parties to that effect. Moreover, we do not discern that these six executors, in their capacity as named-in-the-will but not yet qualified fiduciaries, were parties to the will contest or represented therein. Under such circumstances they can be compensated in this proceeding only for services rendered after qualification as executors in this, not the pendente lite administration.

The appealing executors also complain of the trial judge’s having allegedly depreciated his allowance for their services on the basis that there would be due them further corpus allowances when they were discharged as executors and assumed administration of the testamentary trusts. There was an allusion to the latter fact by the trial judge in his opinion but we doubt that it was more than a makeweight observation. Authority for the relevance of such a consideration may be found in In re Bristle, supra, 138 N. J. Eq. at 477. A sounder approach, however, would seem to have been reflected by In re Hibbler’s Estate, 78 N. J. Eq. 217 (Prerog. Ct. 1910), aff’d o. b. 79 N. J. Eq. 230 (E. & A. 1911), wherein it was indicated that a judgment as to how much should be allowed as trustee should take into account what was previously allowed as executor. Cf. In re Armour’s Will, 33 N. J. 517 (1960).

In any event, if the trial court’s observation influenced the allowance, appellants will not have been prejudiced as that consideration will not affect our own determination as to what the award should he in this case.

It remains to be observed, relative to the factor of risk, that under the will the corporate fiduciary was relieved of any right or responsibility to (a) participate in any decision concerning any sale of the shares in the company, or (b) participate in decisions as to company management. It was also relieved of any liability in respect of loss caused by actions or defaults by the other executors in relation to the company.

Thus, on the basis of what has been stated, our conclusion that this was an average estate in terms of pains, trouble and risk to the executors in its administration should operate to reduce the 5% maximum corpus commission rate accordingly. We accept the trial court’s determination of as fairly reflective of the “average” factor for pain, trouble and risk presented. However, the trial court erred in not further reducing the commission rate to reflect the significant circumstance that the base of over nine million dollars in corpus receipts represents a value resulting substantially entirely from the effects of general real estate inflation upon the value as of the time the executors took over their administration in April 1967 — $2,000,000. The executors have conceded this fact in the depositions.

In the Moore case, supra, it was pointed out:

* *' The time during the administration when the value increased lias to be taken into account and where the increase has existed only during a fraction of the period, the rate should be calculated downward accordingly. In other words, an increase in value at the late stages of an administration should not be related back to inception, and it is the accountant’s obligation to present to the court the facts with reference to the time and amount of value increases claimed. Likewise, it has become quite generally and soundly accepted that where a substantial increase in value is in no sense attributable to the efforts of the fiduciary, but only to the universal effects of inflation, * * the rate of commission allowed should * * * be lower than if calculated upon inventory values’. Appleby v. Appleby, supra (140 N. J. Eq., at p. 12). [50 N. J. at 147; footnote omitted].

We do not interpret the two thoughts thus expressed as calling for two separate and distinct adjustments downward of the commission rate, but rather as representing two approaches to the rationale for adjusting the rate downward once. In other words, a fiduciary who begins administration of an estate then valued at $2,000,000 which by inflation alone rises to a value of $9,000,000 by the termination of the administration should be subject to a fair adjustment downward of the otherwise proper rate to be multiplied against the end-value of $9,000,000 because he has not borne the responsibility' of custody and administration of that much of a valuation over the whole period of his administration. The implication of the latter part of the excerpt quoted from Moore, supra, is that he might be exempt from such a downward rate revision if his managerial acumen, rather than sheer inflation, were creditable for the rise, or might, alternatively, be allowed credit therefor in the fixing of the “pains, trouble and risk” factor.

There being no evidence as to just when and at what rate the valuation rose, we assume it rose at a uniform rate during the five years of the administration and that therefore the average value over the five year period was $5,500,000 ($9,000,000 plus $2,000,000 divided by two). Since $5,500,000 is roughly 60% of $9,000,000, there ought theoretically to be a revision downward by 40% of whatever rate would otherwise be properly applied to the base. We have already determined above that after application of the “pains, trouble and risk” factor the 5% maximum rate should be reduced to 2;%%. Reducing that rate to the extent of 40% thereof would leave the tentative effective rate (on the assumption of a one-executor estate) at 1.5%.

Theoretical evaluations may not always be just ones, however. We have decided that the 1.5% rate arrived at above should be adjusted to 1.75% on a subjective review of the entire record of the performance of the executors over the five-year period involved and all elements properly to be considered in relation thereto, including the management of the successful final sale.

Appellant executors have argued they should not be dealt with adversely because of the valuation inflation factor in view of the fact that only by holding on to the bulk of the land until the nine million dollar sale opportunity came along was it possible to realize on it. However, we have already indicated that the executors had no real choice but to wait until a determination of whether the renewal option on the lease of the farmland would be exercised. In any case, the prudent holding of property for a better price seems to appertain more appropriately to the fixing of the pains, trouble and risk factor than to mitigation of the rate adjustment for the inflationary rise called for by Moore, supra. There is therefore, for both these reasons, no basis to mitigate the adjustment for the inflation factor.

II

The Chancery Division allowed the executors an additional 2% on corpus by reason of there being more than one fiduciary. The statute allows a maximum of 1% additional on total corpus per fiduciary in excess of one, so that the potential additional rate for the six executors here was 5%, N. J. S. A. 3A :10-2, subd. a(3), which was the rate requested by them.

We can see no reason, as a matter of logic and principle,' why the same considerations we . deemed appropriate in scaling down the maximum rate of 5% applicable to a one-executor estate (as to excess over $100,000) should not also apply, and to the same degree, in determining what part of the maximum rate of 5% for the additional five executors should be allowed in respect thereof. Hor has any such reason been suggested by the parties. We consequently fix the same rate of 1.75% as the allowable rate for the stated purpose.

Ill

The trial court allowed a counsel fee of $200,000 for legal services rendered to the executors by Mr. Orlando and his firm. We are constrained to find the allowance excessive to the extent of constituting a mistaken exercise of discretion as (a) not reflecting the, fact that Mr. Orlando received $25,000 in retainers for legal work for the company, as distinguished from the executors; (b) placing too high a value on legal services to the executors, and (c) allocating to value of legal services, as opposed to value of services as executor, Mr. Orlando’s leadership and coordination of the activities of the executors.

Mr. Orlando wore a number of hats in relation to the subject matter of this administration. He was (1) executor, perhaps the most active of' the six; (2) counsel to the executors; (3) a member of the board of directors of the company, and (4) attorney for the company. The affidavit of services he filed below reflects services in all four capacities, in many instances not clearly defined. As already noted, Mr. Orlando was paid a $5,000 annual retainer over a period of five years for services as attorney to the company — a fact not noted in the affidavit of services nor mentioned in conneetion with the evaluation of his legal services to the executors in the Chancery Division opinion.

It is clear that in appraising the value of legal services to an estate, such services must be segregated from services by the attorney rendered as a fiduciary, for which he is separately compensated by commissions on corpus and income. In re Estate of Simon, 93 N. J. Super. 579, 585 (App. Div. 1967); N. J. S. A. 3A :10-8.

Although an examination of the affidavit of services discloses a considerable number of items readily identifiable as legal services to the estate, there are numerous others more to be characterized as services as executor or corporate director, or as legal services to the company for which payment was to be separately made. Many of the items overlap. The brief of two of the beneficiaries analyzes the services as breaking down to 523 hours for services to executors; 163.50 for services to the corporation, and 159.75 for services as executor. The trial court accepted a breakdown by other counsel as reflecting 739.75 hours of legal services to the executors (but not discriminating as to legal services to the company). The $200,000 counsel fee allowed below breaks down to $270 per hour on the basis of 740 hours and $382 per hour on the basis of 523 hours. In our judgment, even the smaller rate is clearly excessive for ordinary legal services attendant upon an estate administration not involving any significant litigation, if any at all.

The foregoing conclusion is made with full deference to the trial court’s high opinion of Mr. Orlando’s status at the bar, in which we concur, and with such recognition of the factor of the amount involved in the estate as is appropriate. See In re Bloomer, 37 N. J. Super. 85, 94 (App. Div. 1955).

The trial court appears, from its opinion, to have been influenced by Mr. Orlando’s statement in his affidavit that:

As legal counsel for the estate, the task fell largely to me to guide the administration of the estate, to coordinate the efforts of the executors in the administration of the estate and to coordinate the efforts made over a period of several years to accomplish an appraisal of the estate’s assets, the efforts to find a buyer at an acceptable price, and the efforts made to effectuate the actual sale.

However, it is plain that this leadership role pertains essentially to the status of executorship, not legal services, and should be recognized, if in fact warranted, by a suitable share in the gross corpus commissions awarded to the executors for services as such, not by inflation of the value of legal services rendered by Mr. Orlando individually.

We conclude that a fair valuation of the services of counsel in this administration is $135,000, and the award of counsel fee is modified accordingly.

IV

Corpus commissions will be fixed as follows:

5% of the first $100,000 ............ $ 5,000.

1.75% of the balance of $9,124,553.83 .. 159,679.68

1.75% of the total $9,224,553.83 for factor of additional executors ..... 161,429.68

$326,109.36

Counsel fee will be fixed at $135,000.

Judgment modified as to corpus commissions and counsel fee in accordance with this opinion, and affirmed as so modified.

      We have in mind that even in an estate of minimal pain, trouble and risk a rate of at least 1% would ordinarily be allowable.

      The executors Sled returns for inheritance tax purposes showing a valuation of $2,000,000 as of the time of the testator’s death in October 1964. This figure was compromised with federal tax auditors at .33,000,000. The parties, including appellant executors, have assumed a true value of $2,000,000 as of the time the present administration began, and so will we.

      We are using the $9,000,000 figure rather than the statutory base of $9,124,553.83 for averaging purposes since the inflationary influence applies only to the land value, and land was almost the only component of the corporate assets which in effect were the subject matter of the sale of stock for $9,000,000.

      Mr. Orlando also received $8,000 as a special fee for some insurance litigation for the company.


source: Caselaw Access Project

author: Pee Curiam.

license: Public Domain

text:
    JAMES J. BONAFIELD, PLAINTIFF-APPELLANT, v. WILLIAM T. CAHILL, INDIVIDUALLY AND AS GOVERNOR OF THE STATE OF NEW JERSEY AND RONALD M. HEYMANN, INDIVIDUALLY AND AS COMMISSIONER OF LABOR AND INDUSTRY OF THE STATE OF NEW JERSEY AND JOHN J. FRANCIS, DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued February 19, 1974—
    Decided March 7, 1974.

      Before Judges Conford, Meanor and Botter.

      Mr. Harvey Weissbard argued the cause for appellant (Messrs. Isles &. Weissbard, attorneys; Mr. Daniel E. Isles, of counsel).

      Mr. I. Leo Motiuk, Deputy Attorney General, argued the cause for respondents; Mr. Stephen Skillman, First Assistant Attorney General, of counsel (Mr. William F. Hyland, Attorney General of New Jersey [Mr. George F. Kugler, Jr., former Attorney General of New Jersey] attorney).
   Pee Curiam.

We affirm the judgment of the Chancery Division essentially for the reasons stated in the opinion of Judge Kimmelman, 125 N. J. Super. 78 (1973), and those which follow.

Appellant’s contention that as a “judicial officer” he is removable only by impeachment pursuant to N. J. Const. (1947), Art. VII, § III, par. 1, would if accepted leave him totally immune from removal on the charge here levelled against him — practicing law while a judge of compensation. That constitutional provision, which subjects to liability to impeachment “The Governor and all other State officers,” extends only to commission of a misdemeanor. Appellant’s offense was not a misdemeanor. He concedes ho is not impeachable under N. J. Const. (1947), Art. VI, § VI, par. 4, nor removable under N. J. S. A. 2A:1B-1 et seq., which are confined to judges of named courts.

The essential inquiry here is whether judges in compensation are officers or employees in the Executive Branch of the State Government. If they are, they are not excluded from the Governor’s power to remove any state “officer or employee,” under N. J. Const. (1947), Art. V, § IV, par. 5, by reason of the exception therein for a “judicial officer.” We agree with Judge Kimmelman’s determination that the latter exception was not intended to apply to officers in the Executive Branch whatever the judicial nature of their functions and that appellant is an administrative judge in the Executive Branch.

Judgment affirmed.


author: Meanor, J. A. D.

text:
    STATE OF NEW JERSEY, PLAINTIFF-APPELLANT, v. FELIX MALAVE, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued February 19, 1974—
    Decided March 12, 1974.

      Before Judges Conford, Meanor and Botter.

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

      Mr. Robert J. Galluccio argued the cause for respondent (Messrs. Goodman & Bothenberg, attorneys).
   The opinion of the court was delivered by

Meanor, J. A. D.

The State appeals, pursuant to leave, from an order granting defendant’s motion to suppress.

A search warrant was issued authorizing a search of:

* * * the premises of 851 Madison Ave 3rd floor and all parts connected thereto. Plus a Puerto Rican male in his forties about 5'6 in height medium build who lives at said address.

The warrant also provided for the seizure of various named items of gambling paraphernalia. It had been issued on the affidavit of Detective Don Trifari of the Paterson Police Department. His affidavit recited that information had been received from a reliable confidential informant that a Puerto Bican man residing at 851 Madison Avenue, third floor, was picking up numbers bets from individuals and stores along Park Avenue and Market Street and was taking the slips to his residence at 851 Madison Avenue. On April 27, 1973 the informer met Trifari and pointed out the suspect to him. The detective conducted a surveillance of the suspect on that day and the next, observing activity clearly sufficient to lead to a reasonable belief that the suspect was taking bets on the street and in stores. At the conclusion of the surveillance on April 27 Trifari saw the suspect enter 851 Madison Avenue.

The warrant was issued May 2, 1973 and executed that day by Trifari. The suspect was searched and arrested on the street a considerable distance from 851 Madison Avenue. No suspicious activity was observed by Trifari on May 2 before execution of the warrant. At the time of arrest "2 slips with numbers” were found on his person. A search of 851 Madison Avenue revealed nothing incriminatory, and it is established that defendant did not live there and never had.

Warrants to search the person are comparatively rare, probably because most searches of individuals take place as incident to arrest. Nonetheless, it is established that a warrant may issue to search a person as well as a place. See B. 3:5-3 and State v. Masco, 103 N. J. Super. 277, 281 (App. Div. 1968).

Defendant argues, and the' trial court held that the warrant authorized the search of a person only at or near 851 Madison Avenue and not at some other location. We believe, on the other hand, that the warrant authorized two independent searches •—■ one of a person and the other of a place. We see no reason why a warrant to search a person must specify the place where he is to be searched. See Dow. v. State, 207 Md. 80, 113 A. 2d 423, 49 A. L. R. 2d 1205 (Ct. App. 1955).

The sufficiency of the description of the person to be searched contained in the affidavit is attacked. It seems to have been assumed below that defendant was in fact the person Trifari observed during his two-day surveillance, but there was no express evidence on the point. It was stipulated at oral argument, however, that Trifari, if asked, would testify that defendant was in fact the individual pointed out to him by the informer.

Obviously the description of defendant in the warrant would fit a large number of people in Paterson, New Jersey. A description of a person to be searched should, of course, be as particularized as circumstances permit. However, our cases permit the requirement of particularity to be enhanced by the fact that the affiant in support of a warrant to search a place participates in its execution, on the theory that this factor substantially diminishes the prospect of mistake. State v. Daniels, 46 N. J. 428 (1966); State v. Bisaccia, 58 N. J. 586 (1971); State v. Wright, 61 N. J. 146 (1972).

We see no reason why this principle is not applicable to the searches of persons as well as of places. There is no dispute that Detective Trifari executed the warrant, and this circumstance effectively insulated this warrant from being mistakenly executed against an individual who was not its object. Elsewhere warrants have been 'held valid where they contained a general description of the person to be searched, coupled with a recognition that the suspect to be searched would be identified with particularity at the scene by an officer with personal knowledge of the identity of that person. Saum v. State, 200 Md. 85, 88 A. 2d 562 (Ct. App. 1952); Wilson v. State, 200 Md. 187, 88 A. 2d 564 (Ct. App. 1952); Giordano v. State, 203 Md. 174, 100 A. 2d 31 (Ct. App. 1953); Dow v. State, supra. See also Fomby v. State, 120 Ga. App. 387, 170 S. E. 2d 585 (App. Ct. 1969), cert. den. 397 U. S. 1008, 90 S. Ct. 1236, 25 L. Ed. 2d 421 (1970) and State v. DeSimone, 60 N. J. 319 (1972).

Beversed.


author: Per Curiam.

text:
    FREDDIE SCHNELL, ELECTRO-PROTECTIVE CORPORATION AND SUPREME SECURITY SYSTEMS, INC., PLAINTIFFS-RESPONDENTS, v. TOWNSHIP OF MILLBURN, A MUNICIPAL CORPORATION, AND WELLS FARGO SIGNAL SYSTEMS, A CORPORATION, DEFENDANTS-APPELLANTS.
    Superior Court of New Jersey Appellate Division
    Argued February 20, 1974—
    Decided March 15, 1974.

      Before Judges Halpern, Matthews and Bischoff.

      Mr. Michael R. Griffinger argued the cause for appellants (Messrs. Crummy, O’Neill, DelDeo & Dolan, attorneys for appellant Wells Pargo Signal Systems; Mr. Eugene T. O’Toole, attorney for appellant Township of Millburn).

      Mr. Sidney Krieger argued the cause for respondents.
   Per Curiam.

Plaintiffs instituted this action to set aside a resolution of defendant Township of Millburn (Millburn) which enabled defendant Wells Pargo Signal Systems (Wells Pargo) to provide an alarm panel in the central communication network of the Millburn Police Department. Plaintiffs and Wells Pargo are competitively engaged in the commercial and residential burglar alarm business.

In 1970 Millburn advertised for bids for construction of a new Police Administration Center, including a communications console. The console was to provide space for a burglar alarm enunciator panel; the township contemplated that a panel would be installed by the burglar alarm industry at no cost to the township. The function of the enunciator panel is to indicate the occurrence of an intrusion of the premises of a burglar alarm subscriber. The console installed in Mill-burn Police Headquarters contained space for two 60-zone enunciator panels.

On March 10, 1973 Wells Eargo submitted a proposal to install and maintain a 60-zone enunciator panel at its expense. It agreed to make connection facilities available to all alarm companies and their subscribers. It also proposed a $45 installation fee and $5 monthly rental and maintenance fee per subscriber. In addition it expressed the hope “that the town of .Millburn will specify that all alarm connections will utilize this new facility.” In a resolution adopted March 30, 1973, which neither specifies a term during which Wells Eargo may maintain this system nor specifies fees, the township committee accepted the Wells Eargo offer. Wells Eargo installed one 60-zone enunciator panel; we are advised that space presently remains for another such panel.

On March 30, 1973 plaintiffs Supreme Security Systems, Inc. and Electro-Protective Corporation expressed objections to the township committee to the Wells Eargo authorization without competitive bidding. Both companies were informed on April 30, 1973 that the township considered competitive bidding unnecessary in this circumstance. This action followed. The trial judge found that competitive bidding was required by N. J. S. A. 40:48-5 and declared the resolution null and void.

The central issue before us is whether Millburn was required to employ the competitive bidding process prior to awarding the privilege to install burglar alarm enunciators. No one contests the power of Millburn to provide facilities for individual burglar alarms.

A municipality may contract with private persons to provide any service which the municipality is authorized to render. N. J. S. A. 40:48-5. However, that statute also provides that any such contract shall not be let without competitive bidding. And N. J. S. A. 40A:ll-4 provides that every contract for the performance of public work .in excess of $3,500, the cost of which is borne by public funds, shall-be' subject to competitive bidding.

If a contractor performs a function within the police power of a municipality, it is immaterial that the public will bear the expense directly; the particular arrangement does not alter the basic fact that the work is being performed for' the municipality. Kurman v. Newark, 124 N. J. Super. 89, 93 (App. Div. 1973) certif. den. 63 N. J. 562 (1973); McKim v. South Orange, 133 N. J. L. 470, 474 (Sup. Ct. 1945). To argue that it is within the power of the municipality to provide the convenience and added protection of burglar alarm panels, and that because the municipality is in no wise obligated to provide this service or convenience it is therefore exempt from the requirement of competitive bidding, is to ignore the reason for the existence of competitive bidding. If the purpose of competitive bidding is to guard against favoritism, improvidence, extravagance and corruption, Hillside v. Sternin, 25 N. J. 317, 322 (1957), we fail to see why the fact that the service to be performed by a private contractor is not required by law to be performed by the municipality should exempt it from the competitive bidding requirements of N. J. S. A. 40:48—5 when the cost of the service is passed directly to the consumer and not paid directly out of the municipal treasury. It seems apparent that the same problems as those sought to be prevented or controlled by the Legislature with respect to mandatory services would as readily arise with respect to discretionary services.

Finally, we find no merit to defendants’ arguments that this action was instituted out of time and that plaintiffs have no standing to bring it. While the complaint was filed more than 45 days after the adoption of the resolution under attack, the delay was caused by the failure of defendant township to reply to plaintiffs’ demand that the matter be placed out for public bidding. Plaintiff Schnell, as a citizen and taxpayer of the township and therefore a potential user of the system, unquestionably has standing.

Affirmed.


author: Schreiber, J. S. C.

text:
    HACKENSACK MEADOWLANDS DEVELOPMENT COMMISSION AND STATE OF NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION, PLAINTIFFS, v. MUNICIPAL SANITARY LANDFILL AUTHORITY, A JOINT VENTURE OF WILLIAM A. KEEGAN, INC., RECLAMATION AND IMPROVEMENT CO., PETER ROSELLE & SONS, INC., AND DELAWARE SANITARY CO., DEFENDANTS, AND CITY OF YONKERS, NEW YORK, DEFENDANT-INTERVENOR.
    Superior Court of New Jersey Chancery Division
    Decided February 13, 1974.

      Mr. Mark L. First, Deputy Attorney General, for plaintiffs (Mr. George F. Kugler, Jr., Attorney General of New Jersey, attorney).

      Mr. David Samson for defendants (Messrs. Lieb, Wolff & Samson, attorneys).

      Mr. Eugene J. Fox, of the New York Bar, Corp. Counsel for City of Yonkers, pro hac vice for defendant-intervenor (Messrs. Schapira, Steiner & Walder, attorneys).
   Schreiber, J. S. C.

The Hackensack Meadowlands Development Commission (HMDC) and the State of New Jersey, Department of Environmental Protection (DEP), seek to enjoin the Municipal Sanitary Landfill Authority (MSLA) from accepting for disposal in its landfill site located within the Hackensack Meadowlands District any solid wastes originating from or collected outside the territorial limits of New Jersey. Both HMDC and DEP had adopted regulations, effective September 1, 1973 and August 31, 1973, respectively, which prohibited such disposal.

An ad interim restraint, consented to by defendant, had heen entered pending determination of the request for a permanent injunction. On the return date of the order to show cause defendants answered by challenging the constitutionality of the regulations and the Waste Control Act, N. J. S. A. 13:1I-1 et seq. The hearing was adjourned to allow plaintiffs time to respond to the challenges. In the meantime the City of Yonkers, New York, whose refuse was being deposited on the MSLA site, moved for and was granted leave to intervene as a party defendant. No testimony was taken at the hearing. The parties relied on affidavits and the transcript of proceedings taken before the Hackensack Meadow-lands Commission on June 18, 1973.

MSLA has made a three-fold attack. It contends that (1) the Waste Control Act, regulation N. J. A. O. 7:26—1.5 promulgated thereunder, and certain regulations of HMDC, namely, N. J. A. C. 19:7-l.l(g) and (h), are invalid, arbitrary and unreasonable; (2) the procedure followed by DEP in promulgating its rule, N. J. A. C. 7 :26-1.5, violated due process of law, and (3) all the above designated regulations and the Waste Control Act must fall because they violate Article 1, Section 8, paragraph 3 (the Commerce Clause) and Article 4, Section 2, (the Privileges and Immunities Clause) of the H. S. Constitution.

I

The Waste Control Act, N. J. S. A. 13 :1I-'l to 8, recites that the Legislature found that the disposal of wastes generated or collected outside the State poses a threat to the quality of New Jersey’s environment and that the Commissioner of Environmental Protection was empowered to create regulations prohibiting the “landfill of solid waste” and the “disposal of liquid wastes” within the State which originated or were collected outside New Jersey. The Commissioner adopted Regulation N. J. A. C. 7 :26-1.5, effective August 31, 1973, which reads as follows:

Out of State waste
(a) No person engaged in the collection of solid or liquid wastes shall dispose of any solid or liquid wastes which originated or were collected outside the territorial limits of this State in sanitary landfills in the Hackensack Meadowlands District.
(b) No person owning or operating a sanitary landfill within the Hackensack Meadowlands District shall accept for disposal in such sanitary landfill any solid or liquid wastes which originated or were collected outside the territorial limits of this State.

Defendant contends that there is no basis for the Legislature’s findings, that the regulation is invalid in the absence of a showing of a causal relationship between banning out-of-state garbage in New Jersey and a threat to its environment, and that the regulation is overly broad by banning all wastes. The statute and the administrative regulations' are presumptively valid. Harvey v. Essex County Board of Freeholders, 30 N. J. 381 (1959); Burton v. Sills, 53 N. J. 86 (1968); State v. Profaci, 56 N. J. 346 (1970). Since one can reasonably and readily conceive of facts which would support the Legislature’s findings and the Commissioner’s regulations, the onus is on defendant to establish that the Legislature’s and Commissioner’s actions are arbitrary. Consolidation Coal Co. v. Handle, 105 N. J. Super. 104 (App. Div. 1969), aff’d 54 N. J. 11 (1969); Municipal Sanitary Landfill Authority v. Hackensack Meadowlands Development Comm’n, 120 N. J. Super. 118 (App. Div. 1972); Borden’s Farm Products Co., Inc. v. Baldwin, 293 U. S. 194, 55 S. Ct. 187, 79 L. Ed. 281 (1934). Defendant’s proof consisted of an affidavit of an engineer, Dennis L. Backus, and the transcript of proceedings before the Hackensack Meadowlands Commission held on June 18, 1973 with respect to its proposed regulations. The affidavit asserts that quantities of solid wastes are used for construction purposes and that therefore a complete ban on disposal of out-of-state solid wastes is inappropriate. This conclusion does not necessarily follow because no reference is made to the amount of New Jersey refuse which is being used for landfill purposes, the limited amount of area available, and the environmental and public health impacts involved. Further, an affidavit of Lino Pereira, the Principal Environmental Engineer of DEP, asserts that sanitary landfills “present a pollution danger because they do uot conserve or recover resources but bury them, and because they severely limit the future use of the land on which they are located.” Additionally, he avers that sanitary landfills present a unique fire problem. An affidavit of Bernhard V. Lind, Acting Chief of the Bureau of Solid Waste Management in the DEP, asserts that of the 55,000 tons per week of solid waste being disposed of in the Hackensack Meadowlands District, 10,000 tons originated outside New Jersey and there was an acute shortage of remaining landfill life located there. In view of all the foregoing, it is obvious that MSLA has not met its burden.

The same type of attack has been made upon regulations N. J. A. C. 19:1—1.1 (g) and (h) of the HMDC. These regulations read as follows:

19:7-l.l(g). No solid waste originating or collected outside of the territorial jurisdiction of New Jersey shall be disposed of or treated within the Hackensack Meadowlands District. No sanitary landfill operator shall accept for disposal, at a sanitary landfill within the Hackensack Meadowlands District, any solid waste originating or collected outside of the territorial limits of New Jersey.
19:7—1.1(h). All operators of sanitary landfills within the Hackensack Meadowlands District shall submit to the Commission, together with their applications, as provided in Sections 3 and 4 of this sub-chapter, a certification stating that no solid waste originating or collected outside of the territorial limits of New Jersey will be accepted for disposal or treatment.

Defendant has made no showing that there was no basis for these regulations. The affidavits of William D. McDowell, Executive Director of HMDO, and George D. Cascino, its Chief Engineer, disclosed that three surveys had been made to determine the volume and origin of solid waste disposed of in landfills in the Hackensack Meadowlands District. The first disclosed that in 1968 some 30,000 tons were entering the District each week, of which 4,000 tons originated outside New Jersey. HMDC study in 1971 revealed that the weekly tonnage was 42,000, of which 5,000 emanated from outside the State. In April 1973 HMDC updated its study. At that time weekly tonnage had increased to 55,000, of which 10,000 came from sources outside New Jersey. The Commission concluded that the sites had only three years of life remaining and that banning of out-of-state garbage would extend the landfill life some six months.

Under the Hackensack Meadowlands Development Act the Commission must provide disposal facilities for the New Jersey municipalities (totalling 118, according to plaintiffs) which had been utilizing the District. N. J. S. A. 13 :17-10(a), (b) and (e). The affidavits point out that the Commission needs as much time as possible to develop a viable alternate method of disposal. One cannot reasonably contend that promulgation of the regulations under the totality of these facts and circumstances was arbitrary.

Defendant also argues that the HMDC regulations contravene N. J. S. A. 13:17-6(w) and 13:17-10(b) and (e) by failing to provide for disposal facilities for waste equal to levels at the time the statute was passed, which levels included out-of-state waste. N. J. S. A. 13 :17-6 (w) authorizes HMDC “to provide solid waste disposal facilities for the treatment and disposal of solid waste, as hereinafter provided.” N. J. S. A. 13 :17-10 reads:

(a) Within 6 months of the effective date of this act the commission shall undertake and complete a survey of the district to determine the total amount of solid waste treated and disposed on a daily basis in the district as of the effective date of this act by persons in this State.
(b) The commission is hereby authorized, empowered and directed to guarantee that solid waste disposal facilities sufficient to treat and dispose of the total amount of solid waste determined by its survey shall be available or be provided by the commission.
£ * * * * i'fi *
(e) The commission, in its discretion, may provide solid waste disposal facilities sufficient to treat and dispose of more than the total amount of solid waste determined by its survey, and may make such facilities available to persons other than those treating and disposing of solid waste in the district as of the effective date of this act. [Emphasis added]

Defendant reads these three sections together as guaranteeing continued use to all persons utilizing the disposal facilities in the Meadowlands at the time the act was passed. To interpret the statute in that way, however, one must delete the last three words in subsection (a). The inclusion of those words, “in this State,” demonstrates that the Legislature was concerned about waste collected in New Jersey. If it intended to include all waste disposed of in the Meadowlands no matter where its origin, the phrase “in this State” would not have been inserted, since, obviously, garbage dumped in the Meadowlands is dumped in this State. One must assume in interpreting a statute that the legislators would not insert a redundant or meaningless phrase. The only significance in these words is that the Legislature was interested in providing for disposal of New Jersey garbage — therefore, the remaining subsections, when referring to the “total amount of solid waste determined by its [the Commission’s] survey,” are concerned with the total amount of garbage disposed of in the Meadowlands by persons in this State, i. e., the total amount of New Jersey waste dumped in the Meadowlands. This is the only sensible interpretation. The concern of the New Jersey Legislature was to safeguard the area for New Jersey operations — not New York, Pennsylvania, or other jurisdictions. As Justice Jacobs wrote in J. C. Chap. Prop. Owners’, etc., Ass’n v. City Council, 55 N. J. 86 (1969) :

When all is said and done, the matter of statutory construction here will not justly turn on literalisms, teehnisms or the so-called formal rules of interpretation; it will justly turn on the breadth of the objectives of the legislation and the eommonsense of the situation, [at 100]

To the same effect: State v. New Jersey National Bank and Trust Co., 62 N. J. 50 (1972). Defendant’s contention that the regulations contravene the enabling statute is unsound for the statute mandates only that the Commission guarantee disposal facilities for New Jersey communities utilizing the landfill sites as of the effective date of the act.

II

Defendant attacks the procedure followed by the DEP in adopting N. J. A. C. 7:26-1.5, claiming that the failure to hold a hearing prior to adoption of the rule denied defendants due process. This contention has no merit. Plaintiff DEP caused the proposed regulation to be published in the New Jersey Register on July 5, 1973, with the statement that “interested persons may present statements or arguments in writing relevant to the proposed action on or before August 3, 1973.” 5.N. J. R. 220(c). This notice was consistent with the Administrative Procedure Act, N. J. S. A. 52:14B-1, ei seq., and complied with N. J. S. A. 52:14B-4(a) (2), affording any interested person a reasonable opportunity to be heard. Defendant concedes that the act does not require a formal hearing and that it did not submit a statement or request a hearing. The uncontroverted statement in the affidavit of Mr. Lind is that no written statement or argument was received by DEP from any interested person. Under these circumstances there was no constitutional or statutory requirement that a hearing be held prior to the promulgation of the regulations. Motyka v. McCorkle, 58 N. J. 165 (1971).

ill

There remains defendant’s constitutional challenges. i. e.j that the DEP and HMDC regulations set forth above violate Article I, Section 8, paragraph 3 (Commerce Clause) and Article IV, Section 2 (Privileges and Immunities Clause) of the U. S. Constitution. (Defendant has not argued the Waste Control Act is unconstitutional). Defendant has not vigorously advanced its argument with respect to Article IV, Section 2, and it is not necessary to deal with that contention in depth. Suffice it to say there are serious infirmities in that position, such as the fact that it is not applicable to corporations and that it only applies where there is no substantial reason for the discrimination. Paul v. Virginia, 8 Wall. 168, 75 U. S. 168, 19 L. Ed. 357 (1868) ; Hemphill v. Orloff, 277 U. S. 537, 48 S. Ct. 577, 72 L. Ed. 978 (1928); Toomer v. Witsell, 334 U. S. 385, 68 S. Ct. 1156, 92 L. Ed. 1460 (1948).

Article I, Section 8, provides that “Congress shall have power * * * to regulate commerce * * * among the several Stales * * DEP and HMDC contend that garbage is not a legitimate subject of trade or commerce and therefore not within the purview of the Commerce Clause. They rely upon a number of cases which recognize the power of a state to forbid the sale or importation of impure foods or such articles as would spread disease and pestilence and would be immediate causes' of destruction of or injury to human health and life. A state’s prohibition of the interstate transportation of diseased animals has been held not to contravene the Commerce Clause. Clason v. Indiana, 306 U. S. 439, 59 S. Ct. 609, 83 L. Ed. 858 (1939). Similarly, statutes forbidding the importation and sale of adulterated or injurious food or drugs have withstood constitutional attacks. Crossman v. Lurman, 192 U. S. 189, 24 S. Ct. 234, 48 L. Ed. 401 (1904); Price v. Illinois, 238 U. S. 446, 35 S. Ct. 892, 59 L. Ed. 1400 (1915). In Sligh v. Kirkwood, 237 U. S. 52, 35 S. Ct. 501, 59 L. Ed. 835 (1915), a Florida statute prohibiting the exportation of fruits which were unfit for human consumption was held valid. All these cases classified the matter (diseased animals, adulterated food, fruit unfit for human consumption) as nonmerchantable. In all the food and drug cases the articles were banned to protect the public from mistaking them for pure and wholesome foods and to prevent the spread of disease. The articles involved had no useful purpose and were per se dangerous to health. On the other hand, refuse may be utilized for construction, landfill, recycling of paper, bottles and metal, and production of electricity. In passing, it might be noted that some successful incinerator systems which create waste heat for power generation exist in Germany, the Netherlands, Prance and Switzerland. In the instant situation there is no prohibition against the transportation of out-of-state garbage in or through New Jersey or the disposal of such refuse in New Jersey landfill sites located in places other than the Hackensack Meadowlands District. It is not the danger to public health due to transportation of garbage in New Jersey or location of the garbage in a licensed landfill site in the State which is the evil that the Waste Control Act and the regulations are directed at. The purpose is conservation of the land used for disposal sites in the Hackensack Meadow-lands District so that their life expectancy will be extended from 3 to 3J4 years. In any event, the regulations in question here which are directed to the restricted use of sites for New Jersey garbage cannot be sanctioned on the concept that garbage is not a legitimate subject of interstate commerce.

It is well established that a state may, in the exercise of its police power, enact legislation, even though it may affect interstate commerce, provided that the Redera Government has not preempted the field. Gibbons v. Ogden, 9 Wheat 1, 22 U. S. 1, 6 L. Ed. 23 (1824); Missouri, Kansas & Texas Railway v. Haber, 169 U. S. 613, 18 S. Ct. 488, 42 L. Ed. 878 (1898); Sligh v. Kirkwood, supra.; Yellow Cab Co. of Camden v. Stale, 126 N. J. Super. 81 (App. Div. 1973), certif. den. 64 N. J. 498 (1974).

The Rederal Government has not adopted legislation dealing with the use of waste landfill sites. Enrther, the regulations and statute in question are clearly within the authority of the State’s police power to conserve its landfill sites. It has been recognized that the dumping of garbage in a landfill is an unattractive and undesirable use of land and that it creates potential health and fire hazards. In Shaw v. Byram Tp., 86 N. J. Super. 598 (App. Div. 1965), Judge (now Justice) Sullivan wrote:

* *' Garbage or refuse is unsightly, smelly, attracts flies and rodents, and is a potential fire hazard. It is a prime source of disease and contamination. It has been called a necessary evil because it is a by-product of civilized society. Ordinarily, some provision is made for its collection and disposal by the local government. However, problems of public health and welfare are involved, and no matter how carefully regulated, garbage dumps present some hazard to^ a community, the degree of hazard being directly related to the amount of garbage dumped, [at 6021

In Municipal Sanitary Landfill Authority v. Hackensack Meadowlands Development Comm'n, Judge Lynch approved the Commission’s finding that:

Sanitary landfills conducted on virgin land forever ruin the possibility of preserving the site for conservation. Additionally, such landfill operations can have an adverse effect on the ecological balance of the surrounding area. A sanitary landfill operation also has severe Umitioig effects on future development of the property. Problems of settlement, gas generation, and fires make it difficult to construct structures on former landfill sites. [120 N. J. Super, at 122]

However, state regulations and laws based on the exercise of the police power may only stand if they do not discriminate against interstate commerce. In other words, the exercise of the police power may not be predicated on a method directed against interstate commerce. Plaintiffs concede that this is so. This nondiscrimination principle has been expounded in several United States Supreme Court decisions. In Huron Portland Cement Co. v. Detroit, 362 U. S. 440, 80 S. Ct. 813, 4 L. Ed. 2d 852 (1960), the City of Detroit had passed an ordinance which limited the permissible amount and density of smoke emissions from the boiler stacks of vessels while docked in the city. Huron Portland Cement Co., a Michigan corporation whose ships travelled among several states via the Great Lakes, challenged the code as an unlawful interference with interstate commerce. The court held that the ordinance was a valid exercise of the state’s police power since it applied generally to all ships and did not discriminate in favor of local industry. Mr. Justice Stewart wrote:

* * * State regulation, based on the police power, which does not discriminate against interstate commerce or operate to disrupt its required uniformity, may constitutionally stand. Hennington v. Georgia, 163 U. S. 299, 16 S. Ct. 1086, 41 L. Ed. 166; Lake Shore & M. S. R. Co. v. Ohio, 173 U. S. 285, 19 S. Ct. 465, 43 L. Ed. 702 ; Pennsylvania Gas Co. v. Public Service Com. 252 U. S. 23, 40 S. Ct. 279, 64 L. Ed. 434 [PUR 1920E 18] ; Milk Control Bd. v. Eisenberg Farm Products, 306 U. S. 346, 59 S. Ct. 528, 83 L. Ed. 752; Bob-Lo Excursion Co. v. Michigan, 333 U. S. 28, 68 S. Ct. 358, 92 L. Ed. 455.
* * ❖ * * >js *
It has not been suggested that the local ordinance, applicable alike to “any person, firm or corporation” within the city, discriminates against interstate commerce as such. It is a regulation of general application designed to better the health and welfare of the community. * * We conclude that no impermissible burden on commerce has been shown, [at 448, 80 S. Ct. at 818].

In S. C. Hwy. Dept. v. Barnwell Bros. Inc., 303 U. S. 177, 58 S. Ct. 510, 82 L. Ed. 1522 (1938), Mr. Justice Stone, in upholding a state law which limited the width and load of trucks on state highways, wrote:

The commerce clause by its own force, prohibits discrimination against interstate commerce, whatever its form or method, and the decisions of this Court have recognized that there is scope for its like operation when state legislation nominally of local concern is in point of fact aimed at interstate commerce, or by its necessary operation is a means of gaining a local benefit by throwing the attendant burdens on those without the state. Robbins v. Shelby County Taxing District, 120 U. S. 489, 498, 30 L. Ed. 1189; Caldwell v. North Carolina, 187 U. S. 622, 626, 47 L. Ed. 336. It was to end these practices that the commerce clause was adopted.

In Guy v. Baltimore, 100 U. S. 434, 25 L. Ed. 743 (1879), a Maryland statute authorized Baltimore to collect wharfage fees from all vessels which docked in city wharves, provided that the material to he loaded or unloaded was not produced in Maryland. The city adopted an ordinance accordingly. The court commented:

In the exercise of its police powers, a State may exclude from its territory, or prohibit the sale therein of any articles which, in its judgment, fairly exercised, are prejudicial to the health or which would endanger the ilves or property of its people. But if the State, under the guise of exerting its police powers, should make such exclusion or prohibition applicable solely to articles, of that kind, that may be produced or manufactured in other States, the courts would find no difficulty in holding such legislation to be in conflict with the Constitution of the United States, [at 443]

The court invalidated the ordinance on the ground that:

* * * no State can, consistently with the Federal Constitution, impose upon the products of other States, brought therein for sale or use, or upon citizens because engaged in the sale therein, or the transportation thereto, of the products of other States more onerous public burdens or taxes than it imposes upon the like products of its own territory, [at 439]

The court also indicated that the wharves-were property held for public use by the municipality, which could not “be permitted by discrimination” to impede commercial intercourse. That property held for public use may not be limited on a discriminatory basis has peculiar pertinence here. The New Jersey Legislature has deemed it appropriate to classify operations of garbage landfill sites as public utilities. N. J. S. A. 48 :2—13. As sucb they would appear to be affected with a public interest as much as a municipally owned wharf. It might be noted that the State has expressly prohibited a public utility from directly or indirectly making or giving “any undue or unreasonable preference or advantage to any person, locality or particular description of traffic, or subject any particular person, locality or particular description of traffic to any prejudice or disadvantage.” N. J. S. A. 48: 3-4.

DEP and HMDC rationalize that discrimination is absent because the regulations do not prefer New Jersey over out-of-state landfill operators or garbage haulers. The difficulty with that rationale is that it is the discrimination based on the origin of the refuse, not the residence of the owner or carrier, which is invidious. Transportation of the refuse, whether carried by New Jerseyans or nonresidents, in interstate commerce is directly affected by the ban.

Although the State’s objective in attempting to conserve a local natural resource for local needs is a proper police power purpose, that cannot be accomplished by discrimination based on the source of the refuse. In Pennsylvania v. West Virginia, 262 U. S. 553, 43 S. Ct. 658, 67 L. Ed. 1117 (1923), a West Virginia statute restricted the exportation of natural gas to ensure a sufficient supply for its own citizens. Although the Supreme Court recognized (at 598, 43 S. Ct. at 665) that “the gas is a natural product of the state and has become a necessity therein, that the supply is waning and no longer sufficient to satisfy local needs and be used abroad, and that the act is therefore a legitimate measure of conservation in the interest of people of the state,” the statute had to fall because it interfered with interstate commerce.

Oklahoma enacted a law which prevented a pipeline company from transporting natural gas outside the state. The purpose of the law was to conserve natural gas in the Oklahoma fields for consumption in the state. In declaring the statute violative of the Commerce Clause, the U. S. Supreme Court, in West v. Kansas Natural Gas Co., 221 U. S. 229, 31 S. Ct. 564, 55 L. Ed. 716 (1911), commented:

* * * The statute of Oklahoma recognizes it to be a subject of intrastate commerce, but seeks to prohibit it from being the subject of interstate commerce, and this is the purpose of its conservation. In other words, the purpose of its conservation is in a sense commercial — the business welfare of the State, as coal might be, or timber. Loth of those products may be limited in amount, and the same consideration of the public welfare which would confine gas to Lie use of the inhabitants of a State would confine them to the inhabitants of the State. If the States have such power a singular situation might result. Pennsylvania might keep its coal, the Northwest its timber, the mining States their minerals. And why may not the products of the field be brought within the principle? Thus enlarged, or without that enlargement, its influence on interstate commerce need not be pointed out. To what consequence does such power tend? If one State has it, all States have it; embargo may be retaliated by embargo, and commerce will be halted at state lines. And yet we have said that “in matters of foreign and interstate commerce there are no state lines.” In such commerce, instead of the States, a new power appears and a new welfare, — a welfare which transcends that of any State. But rather let us say it is constituted of 1 lie welfare of all of the States and that of each State is made the greater by a division of its resources, natural and created, with every other State, and those of every other State with it. This was the purpose, as it is the result, of the interstate commerce clause of the Constitution of the United States. If there is to be a turning backward it must be done by the authority of another instrumentality than a court. Lat 255, 31 S. Ct. at 571]

The Commissioner of Environmental Protection and the Hackensack Meadowlands Development Commission adopted the regulations in question to expand the life of the landfill sites for garbage collection in the Hackensack Meadowlands District from 3 to 3years. To attempt to accomplish that end by discriminating against sources of refuse solely because they originate or are collected outside the State under the circumstances here contravenes Article I, Section 8, Clause 3 of the U. S. Constitution. The regulations are invalid.

      L. 1973, c. 363, enacted on January 2, 1974, authorizes the Commissioner of the Department of Environmental Protection to determine when any solid or liquid waste which originated or was collected outside New Jersey may not be brought into the State. He has enacted regulations to that effect. N. J. A. C. 7 :l-4.2. The effect of that statute and regulations is not before the court, although they may render this decision moot. It is interesting to note that the regulations adopted by the ■ Commissioner except from the prohibition separated waste material intended for recycling or reclamation, municipal solid waste to be processed into reusable secondary materials, including fuel and heat, and “hazardous waste” which is to be treated in a solid waste disposal facility. The new law and regulations are concerned with the public health as well as environmental impact. The Commissioner’s definition of “hazardous waste” would appear to fall into category of nonmerchantable material not subject to the Commerce Clause, N. J. A. C. 7:1-4.1.


author: Lane, J. S. C.

text:
    TOMS RIVER PUBLISHING COMPANY, A CORPORATION OF THE STATE OF NEW JERSEY, PLAINTIFF, v. THE BOROUGH OF MANASQUAN, MONMOUTH COUNTY, NEW JERSEY; BOROUGH COUNCIL OF THE BOROUGH OF MANASQUAN, STUART R. HANCOCK, MAYOR OF THE BOROUGH OF MANASQUAN; THE POLICE DEPARTMENT OF THE BOROUGH OF MANASQUAN; WILLIAM A. MORTON, CHIEF OF POLICE OF THE BOROUGH OF MANASQUAN; AND SGT. LAVOKI OF THE POLICE DEPARTMENT OF THE BOROUGH OF MANASQUAN, DEFENDANTS.
    Superior Court of New Jersey Chancery Division
    Decided February 6, 1974.

      Mr. Peter R. Strohm argued the cause for plaintiff (Messrs. Rothstein, Mandell & Strohm, P. C., attorneys).

      Mr. John D. Wooley argued the cause for defendants, Borough of Manasquan, Council of the Borough of Manasquan, Stuart R. Hancock, Mayor of the Borough of Manasquan and William A. Morton, Chief of Police of the Borough of Manasquan.
   Lane, J. S. C.

In this action plaintiff seeks an injunction to restrain the enforcement of a provision of an anti-litter ordinance. The matter is before the court on final hearing.

Plaintiff publishes a public newspaper in Ocean and Monmouth Counties under the name of “The Reporter.” It is distributed by plaintiff without charge to residents within the Borough of Manasquan and is hand delivered to the homes of all residents unless they have specifically requested that it not he delivered.

At its regular meeting on April 23, 1973, the governing body of Manasquan passed Ordinance 884, which reads in part:

No person shall deposit or deliver any paper, circular or printed material of any kind at any residence within the Borough of Manasquan, except upon the expressed request and order of the owner or occupant of any such residence.

Municipalities have no powers other than those delegated to them by the Legislature and by the State Constitution. Ringlieb v. Tp. of Parsippany-Troy Hills, 59 N. J. 348, 351 (1971); Wagner v. Newark, 24 N. J. 467, 474 (1957). N. J. S. A. 40 :48-2, however, is a sweeping grant of legislative power to municipalities:

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.

Normally municipal ordinances are presumed to he valid. Courts are instructed that such ordinances must receive liberal construction. N. J. Const., Article IV, Section VII, 11. See Moyant v. Paramus, 30 N. J. 528, 534 (1959),

In Johnson v. Township of Montville, 109 N. J. Super. 511 (App. Div. 1970), the court stated:

In passing upon the validity of the ordinance the role of the courts is tightly circumscribed, fOit omit.] There is a presumption that the municipal governing body acted reasonably and that the resulting legislation is valid. [Git omit.] We may not pass upon the wisdom of a particular ordinance, and debatable issues or questions of policy involved in its passage must be resolved in favor of the municipality. [Git. omit.] We are not free to compare the views of the municipal governing body with our own and from this to determine what policy would be in the best interest of the community’s residents. The wisdom of the course chosen by the governing body, as distinguished from its legality, is reviewable only at the polls. * * * [at 519]

However, the police power delegated by the state is not infinite and illimitable. Iannella v. Piscataway Township, 138 N. J. Eq. 598, 600 (Ch. 1946). An exercise of delegated power in a manner not within the contemplation of the Legislature must be restrained within proper bounds and be held void. Hasbrouck Heights Hosp. Ass’n. v. Bor. of Hasbrouck Heights, 15 N. J. 447, 455 (1954). Justice Heher summarized the appropriate restraints upon the exercise of the police power in Schmidt v. Board of Adjustment, Newark, 9 N. J. 405 (1952) :

The exercise of the power is contained by the rule of reason. Arbitrary action is inadmissible. There must be a substantial connection between the moans invoked and the public interest designed to be advanced. The inquiry is whether, considering the end in view, the measure “passes the bounds of reason and assumes the character of a merely arbitrary fiat.” [Cit. omit.] It is requisite that there be a rational relation between the regulation and the service of the common welfare in an area within the reach of the police power, and that the means be reasonable and appropriate to that end. Restraints upon property cannot be unreasonable or unduly discriminatory. A police regulation that goes beyond the public need is not effective to curtail the basic rights of person or of private property made the subject of constitutional guaranties. But where the subject is comprehended in the police power of the state, debatable questions as to the reasonableness of the measure áre not for judicial cognizance. * * * [at 416]

See 7 McQuillin, Municipal Corporations, § 24.393 (3d ed. 1968 Rev. Vol.). Compare Dziatkiewicz v. Township of Maplewood, 115 N. J. L. 37, 42 (Sup. Ct. 1935) and Allen v. McGovern, 12 N. J. Misc. 12, 14, 169 A. 345 (Sup. Ct. 1933) with Evans v. LePore, 26 N. J. Misc. 215, 216-217, 59 A. 2d 385 (Sup. Ct. 1948) and Hackettstown v. Tomas, 85 N. J. Super. 578 (Cty. Ct. 1964).

The municipal police power can be exercised only in those areas where regulation is needful for the common good, i. e., public health, safety, morals or general welfare, and then only by reasonable means substantially connected with the public interest designed to be advanced. Moyant v. Paramus, supra, 30 N. J. at 544; Mogelefsky v. Schoem, 90 N. J. Super. 49, 57 (App. Div. 1966), modified and remanded 50 N. J. 588 (1967).

The sweep of the police power is coextensive with the public need, which has been defined as that which is reasonably demanded by, but not necessarily indispensable to, the general welfare. A regulation that maintains the proper balance between collective and individual rights is ordinarily a legitimate exercise of the authority. Mansfield & Swett, Inc. v. West Orange, 120 N. J. L. 145, 153 (Sup. Ct. 1938).

The allegation is that the provision of Ordinance 884 is so broad in its terms as to curtail the right of freedom of the press guaranteed by the First Amendment of the United States Constitution and that it is therefore unconstitutional on its face. The normal rule of presumption of validity of municipal action does not apply where the municipal action impinges upon a citizen’s freedom secured by the First Amendment.

* í= * fA]ny attempt to restrict those liberties must be justified by clear public interest, threatened not doubtfully or remotely, but by clear and present danger. The rational connection between the remedy provided and the evil to be curbed, which in other contexts might support legislation against attack on due process grounds, will not suffice. [Thomas v. Collins, 323 U. S. 516, 530, 65 S. Ct. 315, 322, 89 L. Ed. 430 (1945)]

The right to distribute, circulate or otherwise disseminate ideas and written materials has long been recognized to constitute an integral part of the right of free speech and press. Both rights are clearly fundamental ones protected by the First Amendment. Martin v. Struthers, 319 U. S. 141, 143, 63 S. Ct. 862, 87 L. Ed. 1313 (1943); Lovell v. Griffin, 303 U. S. 444, 450-452, 58 S. Ct. 666, 82 L. Ed. 949 (1938). The freedom of speech and press embraces the right to distribute literature and necessarily protects, the right to receive it. Martin v. Struthers, supra, 319 U. S. at 143, 63 S. Ct. 862. Accord, Marsh v. Alabama, 326 U. S. 501, 505, 66 S. Ct. 276, 90 L. Ed. 265 (1946). The privilege may not be withdrawn even if it creates the minor nuisance for a community of cleaning litter from the streets, although the peace, good order and comfort of the community may require regulation of the time, place and manner of distribution. Martin v. Struthers, supra, 319 U. S. at 143, 63 S. Ct. 862.

An ordinance touching such fundamental protected rights must be narrowly drawn to define and punish specific conduct as constituting a clear and present danger to a substantial state interest. See Gooding v. Wilson, 405 U. S. 518, 522, 92 S. Ct. 1103, 31 L. Ed. 2d 408 (1972); Elfbrandt v. Russell, 384 U. S. 11, 18, 86 S. Ct. 1238, 16 L. Ed. 2d 321 (1966); Sherbert v. Verner, 374 U. S. 398, 406-407, 83 S. Ct. 1790, 10 L. Ed. 2d 965 (1963); Cantwell v. Connecticut, 310 U. S. 296, 311, 60 S. Ct. 900, 84 L. Ed. 1213 (1940). Legitimate legislative goals cannot be pursued by means that broadly stifle fundamental personal liberty when the end can be narrowly achieved. Shelton v. Tucker, 364 U. S. 479, 488, 81 S. Ct. 247, 5 L. Ed. 2d 231 (1960). Such intrusions into constitutionally protected areas must be founded on a compelling state interest which overrides private rights. In Martin v. Struthers, supra, 319 U. S. 141, 63 S. Ct. 862, 87 L. Ed. 1313, the court stated:

Freedom to distribute information to every citizen wlierever lie desires to receive it is so clearly vital to tbe preservation of a free society that, putting aside reasonable police and health regulations of time and manner of distribution, it must be fully preserved. The dangers of distribution can so easily be controlled by traditional legal methods, leaving to each householder the full right to decide whether he will receive strangers as visitors, that stringent prohibition can serve no purpose but that forbidden by the Constitution, the naked restriction of the dissemination of ideas, [at 146-147, 63 S. Ct. at 865]

In Lovell v. Griffin, supra, 303 U. S. 444, 58 S. Ct. 666, 82 L. Ed. 949, the Supreme Court had before it an ordinance which prohibited distribution of any literature of any kind without the permission of the City Manager. Mr. Chief Justice Hughes stated:

The ordinance in its broad sweep prohibits the distribution of “circulars, handbooks, advertising, or literature of any kind.” It manifestly applies to pamphlets, magazines, and periodicals. * * * The ordinance is not limited to “literature” that is obscene or offensive to public morals or that advocates unlawful conduct. There is no suggestion that the pamphlet and magazine distributed in the instant case were of that character. The ordinance embraces “literature” in the widest sense.
The ordinance is comprehensive with respect to the method of distribution. It covers every sort of circulation “either by hand or otherwise.” There is thus no restriction in its application with respect to time or place. It is not limited to ways which might be regarded as inconsistent with the maintenance of public order, or as involving disorderly conduct, the molestation of the inhabitants, or the misuse or littering of the streets. The ordinance prohibits the distribution of literature of any kind at any time, at any place, and in any manner without a permit from the city manager.
We think that the ordinance is invalid on its face. Whatever the motive which induced its adoption, its character is such that it strikes at the very foundation of the freedom of the press by subjecting it to license and censorship. The struggle for the freedom of the press was primarily directed against the power of the licensor. It was against that power that John Milton directed his assault by his “Appeal for the Liberty of Unlicensed Printing.” And the liberty of the press became initially a right to publish “without a license what formerly could be published only with one.” While this freedom from previous restraint upon publication cannot be regarded as exhausting the guaranty of liberty, the prevention of that restraint was a leading purpose in the adoption of the constitutional provision. [Cit. omit.] Legislation of the type of the ordinance in question would restore the system of license and censorship in its baldest form, [at 450-452, 58 S. Ct. at 669]

In Martin v. Struthers, supra, 319 U. S. 141, 63 S. Ct. 862, 87 L. Ed. 1313, the ordinance involved read:

It is unlawful for any person distributing handbills, circulars or other advertisements to ring the door bell, sound the door knocker, or otherwise summon the inmate or inmates of any residence to the door for the purpose of receiving such handbills, circulars or other advertisements they or any person with them may be distributing.

Mr. Justice Black said:

We are faced in the instant case with the necessity of weighing the conflicting interests of the appellant in the civil rights she claims, as well as the right of the individual householder to determine whether he is willing to receive her message, against the interest of the community which by this ordinance offers to protect the interest of all of its citizens, whether particular citizens want that protection or not. The ordinance does not control anything but the distribution of literature, and in that respect it substitutes the judgment of the community for the judgment of the individual householder. It submits the distributor to criminal punishment for annoying the person on whom he calls, even though the recipient of the literature distributed is in fact glad to receive it. * * * [at 143-144, 63 S. Ct. at 863]

See also Schneider v. New Jersey, 308 U. S. 147, 160-165, 60 S. Ct. 146, 84 L. Ed. 155 (1939).

Defendants argue that an ordinance limiting distribution of advertising literature is not per se unconstitutional and that a balancing of personal and collective rights in this case should lead to the conclusion that the challenged ordinance is a reasonable exercise of the police power. They suggest that a balancing of fundamental rights is required and that the ordinance is designed to protect the right of privacy of individuals and must be weighed against the rights of freedom of speech and press of the public in general and of individual distributors.

Defendants rely on Breard v. Alexandria, 341 U. S. 622, 71 S. Ct. 920, 95 L. Ed. 1233 (1951). There the court considered the ordinance before it in the context of the freedoms of speech and press and of burdens upon interstate commerce. The court concluded that the ordinance did not restrict fundamental freedoms, in that the activities prevented were solicitations for orders and were essentially commercial. The court reviewed the holding in Martin v. Struthers, supra, 319 U. S. 414, 63 S. Ct. 862, 87 L. Ed. 1313, and distinguished it on the grounds that it involved free, non-commercial solicitation of a religious nature.

Here we are not dealing with solicitation of orders but merely distribution of news.

The validity of an anti-litter ordinance was at issue in Van Nuys Publishing Co. v. City of Thousand Oaks, 5 Cal. 3d 817, 97 Cal. Rplr. 777, 489 P. 2d 809 (Sup. Ct. 1971), cert. den. 405 U. S. 1042, 92 S. Ct. 1317, 31 L. Ed. 2d 583 (1972). The ordinance provided in pertinent part:

Section 1¡. Xo person may throw, cast, distribute, scatter, deposit, pass out, give away, circulate or deliver any handbill, dodger, circular, newspaper, paper, booklet, poster, other printed matter or advertising literature of any kind in the yard or grounds of any house, building structure, on any porch, doorstep or vestibule, in any public hallway, or upon any vacant lot or other private property without having first obtained permission of the owner or of an adult resident or occupant thereof.

In declaring that part of the ordinance invalid and unconstitutional, the court stated:

In sum, though attempting to meet the very real problem of accumulation of litter, the present penal enactment goes substantially beyond what is necessary to achieve the city’s anti-littering objective and, in so doing, treads directly on First Amendment rights. As the United States Supreme Court observed in Thornhill v. Alabama (1940) 310 U. S. 88, 97-98, 60 S. Ct. 736, 742, 84 L. Ed. 1093, there is a “i>ervasive threat inherent in [the] very existence * * * [of] a penal statute 4 91 * which does not aim specifically at evils within the allowable area of state control but, on the contrary, sweeps within its ambit other activities that in ordinary circumstances constitute an exercise of freedom of siieech or of the press. The existence of such a statute * * * results in a continuous and pervasive restraint on all freedom of discussion that might reasonably be regarded as within its purview.”
Thus, although in other contexts we would normally strive to construe the language of the ordinance narrowly to preserve its constitutionality, we believe that its “chilling effect” on sensitive First Amendment rights forecloses its rehabilitation and compels its demise as unconstitutional on its face. The very presence of the ordinance on the books endangers the free distribution of ideas. The would-be lay pamphleteer does not turn to court decisions to find a judicial interpretation of the ordinance; he reads the ordinance. Its cold words of absolute prohibition may stay his publication. [97 Cal. Rptr. at 784, 489 P. 2d at 816]

In People v. Walkenhorst, 59 Misc. 2d 563, 299 N. Y. S. 2d 912 (App. Term 1969), the challenged ordinance read in pertinent part that no person, with' certain exceptions not quoted in the opinion, “shall enter upon any private residential property in [Rockville Center] for the purpose of distributing ‘any hand bill, pamphlet, tract, notice, or advertising matter * * * without the consent of the occupant of said premises previously given.’ ” The court found the ordinance constitutional but held that the distribution of an experimental college newspaper did not fall within the categories specified and was therefore not prohibited. In determining that the ordinance was constitutional, the court relied on People v. Bohnke, 287 N. Y. 154, 38 N. E. 2d 478 (Ct. App. 1941), cert. den. 316 U. S. 667, 62 S. Ct. 1034, 86 L. Ed. 1743 (1942), in which the challenged ordinance also sought to limit distribution of the same essentially commercial material and in which the court specifically noted that the ordinance did not prohibit pamphleteering but only regulated it. In that case defendants were' ordained ministers but also authorized representatives of the publishing house of their religion, who distributed religious pamphlets without the consent of private residents.

Holdings such as these would appear unduly to limit the protections of freedom of speech and press set forth by the Supreme Court in Martin, Lovell and Schneider, supra, restricting those protections to the distribution of blatantly non-commercial literature. However, even assuming that they correctly apply the law, they are to be distinguished from the present case, in which the challenged ordinance prohibits the distribution of any printed matter of any kind to any person without the person’s prior consent and, thus, give enormous weight to rights of privacy at the expense of the freedoms of speech and press. Whether this ordinance is designed to reduce littering, as its context would suggest, or to protect individual residents from disturbance by deliveries of such material, as defendants contend, its impact is far broader than is necessary to achieve those ends and is, in fact, so broad as to interfere with the freedoms of speech and press and of free communication which the First Amendment guarantees both to those who seek to circulate printed material and .those who wish to receive it.

Plaintiff seeks an injunction to restrain the enforcement of the ordinance. A court of equity may exercise its power to enjoin the enforcement of invalid ordinances or the abuse of administrative powers granted by the Legislature. Cappa v. MacArthur, 133 N. J. Eq. 4, 6-7 (Ch. 1943). That portion of Ordinance 884 under attack is so overbroad as to be facially unconstitutional. An injunction will issue restraining the enforcement of the portion of Ordinance 884 quoted at the beginning of this opinion.