author: Leonard, J. A. D.

text:
    JOHN B. KEENAN, SUPERINTENDENT OF ELECTIONS OF ESSEX COUNTY, AND COMMISSIONER OF REGISTRATION OF ESSEX COUNTY, WITHIN THE STATE OF NEW JERSEY, PLAINTIFF-APPELLANT, v. THE BOARD OF CHOSEN FREEHOLDERS OF THE COUNTY OF ESSEX, A BODY POLITIC OF THE STATE OF NEW JERSEY; HARRY LERNER, TREASURER OF THE COUNTY OF ESSEX, AND HENRY A. PEER, TREASURER-ELECT OF SAID COUNTY, DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued April 21, 1869—
    Decided July 1, 1969.

      Before Judges Coneord, Kilkenny and Leonard.

      Mr. Herman W. Kapp argued the cause for appellant.

      Mr. Irwin I. Kimmelman argued the cause for respondents.

      Mr. Arthur J. Sills, Attorney-General, filed an amicus curiae brief (Mr. Stephen BTcillman, Deputy Attorney General, of counsel; Mr. Kenneth M. Olex, Deputy Attorney General, on the brief).
   The opinion of the court was delivered by

Leonard, J. A. D.

Plaintiff is the Superintendent of Elections and the Commissioner of Registration of Essex County (superintendent). The significant issue on appeal is whether plaintiff has the authority to appoint his own counsel, whose salary is to be paid by defendant board, to render legal assistance and advice to him in aid of the discharge of his duties as superintendent and commissioner. The dispositive inquiry is whether plaintiff is an “officer * * * of the State Government” within the meaning of N. J. S. A. 52:17A-11 and N. J. S. A. 52:17A-4(e). The former statute forbids a “state officer” from employing “any person to act as attorney, counsel, solicitor, legal assistant or other legal adviser to such officer * * *” (except for service as an administrative hearing officer). The latter act directs that such officer’s sole legal adviser, attorney and counsel shall be the Attorney-General of the State.

The facts are well stated in the lower court’s opinion, 101 N. J. Super. 495, 496-497 (Law Div. 1968), and need not be repeated here in detail. In brief, plaintiff appointed an attorney as counsel to his office in December of 1965. The appointee served in this position until January 19'68, at which time defendant board removed him from the payroll and directed the treasurer to cease the payment of salary to anyone appointed to such position.

Prior to oral argument, because this case directly involves the scope of the duties and responsibilities of the Attorney-General, we requested the latter, by letter, to file a brief amicus curiae. Such a brief has since been submitted and plaintiff has responded thereto. The Attorney-General supports the conclusion of the trial court.

Judge Antell found in the Law Division that plaintiff was a “state officer” within the meaning of the previously cited statutes, and that defendant board’s actions were therefore proper. We agree with this determination. The court’s reasoning and disposition of the issue was thorough and persuasive. In addition, we note two further considerations tending to support that conclusion.

First, the superintendent of elections is empowered by statute to obtain the use of State Police troopers on election day to aid him “in the enforcement of the election laws of this State.” N. J. S. A. 53 :2—1. Second, the status of the superintendent as a state officer has been recognized in Allan v. Durand, 137 N. J. Law 30, 33 (Sup. Ct. 1948) (the budgetary affairs of the superintendent are subject to the scrutiny of the State Auditor and the removal of the superintendent for malfeasance is within the executive power of the Governor), and MacPhail v. Board of Chosen Freeholders of Hudson Cty., 6 N. J. Super. 613, 617-619 (Law Div. 1950) (although their salaries are paid by the county, employees of the superintendent are “state employees”).

Plaintiffs reliance on a 1961 letter opinion of the Attorney-General to the superintendent is misplaced. This opinion states only that plaintiff’s office is not one of the “State department” encompassed by the provisions of the state civil service act, sec N. J. S. A. 11:4-4(h), to which the Attorney-General is required to appoint a “special counsel.” The opinion then proceeds to advise plaintiff as to how he might obtain reclassification under the civil service procedures. There is nothing in the opinion intimating that plaintiff is not a state officer. In fact, the contrary is true. The opinion assumes that he is such an officer by proceeding to instruct him on how to obtain civil service reclassification.

Several collateral matters have been raised on appeal. Plaintiff argues that defendant board is estopped from now questioning the propriety of his appointment of counsel because it allowed two years to pass before undertaking to remove counsel from the payroll. This argument is not sound. The requisite elements of an estoppel are not present in this case. Defendants are not guilty of any conduct that could give rise to a belief by plaintiff’s counsel that he or his position would be indefinitely retained, or that his position would not some day be abolished or found to be illegal. Similarly, there has been shown no detrimental reliance by counsel on any conduct of defendants pertaining to the future continuance of his employment. On facts such as these there can be no estoppel. See Highway Trailer Co. v. Donna Motor Lines, Inc., 46 N. J. 442, 449, certiorari denied Mount Vernon Fire Ins. Co. v Highway Trailer Co., 385 U. S. 834, 87 S. Ct. 77, 17 L. Ed. 2d 68 (1966); Summer Cottagers’ Ass’n of Cape May v. City of Cape May, 19 N. J. 493, 503-504 (1955). Furthermore, even if the requisite conduct and reliance were here present, they would be of no aid to plaintiff. A governmental body cannot ordinarily be estopped by prior acts that were in violation of law. Adler v. Dept. of Parks & Public Property, Town of Irvington, 20 N. J. Super. 240, 243 (App. Div. 1952); Casale v. Pension Com., etc., of Newark, 78 N. J. Super. 38, 41 (Law Div. 1963).

Plaintiff also contends that counsel’s title to his public office cannot be attacked collaterally, and that the administration of the election laws is not a state function. Both of these points lack merit. The latter assertion is expressly refuted by McDonald v. Board of Chosen Freeholders of Hudson County, 98 N. J. Law 386, 391 (Sup. Ct. 1922), affirmed 99 N. J. Law 393, 398 (E. & A. 1923). The former argument is inapposite because counsel’s title to his position is not being collaterally attacked. It is the legal existence of his office, to which he holds undisputed title, that is under assault.

Plaintiff also complains that the Attorney-General has exceeded the scope of an amicus curiae by assuming and advancing a definite position in his brief regarding the merits of the instant controversy. This point is without merit. The status of an amicus curiae is, of course, advisory rather than adverse, but his function is to provide the court with information pertaining to matters of law about which the court may be in doubt. Casey v. Male, 63 N. J. Super. 255, 258 (Cty. Ct. 1960). The brief of the Attorney-General does not exceed these bounds. His research into the problem before the court has indicated a particular result to him and there is no error in his expressing his opinion to the court. Indeed, he would be remiss in fulfilling his advisory function if he failed to indicate the position to which his research has led. Further, the materials provided in the Attorney-General’s appendix, which were not part of the record below, have not been considered in our disposition of this case.

Plaintiff further maintains that defendant board lacked authority to remove counsel from the payroll. This assertion is frivolous. If county funds were being disbursed to support an illegal position, the board was well justified in ceasing this unwarranted expenditure of public monies. All of plaintiff’s remaining points, which are statutory construction arguments relating to plaintiff’s status as a “state officer” and the extent of his power to retain assistants as may be necessary to carry out the duties of his office, have been satisfactorily disposed of in the lower court’s opinion. See 101 N. J. Super., at pp. 499-507.

Judgment affirmed.


source: Caselaw Access Project

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

license: Public Domain

text:
    NATIONAL COMMUNITY BANK OF RUTHERFORD, APPELLANT, v. CHARLES R. HOWELL, COMMISSIONER OF BANKING AND INSURANCE, AND PEOPLES BANK OF SOUTH BERGEN COUNTY, RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued May 19, 1969—
    Decided July 1, 1969.

      Before Judges Coneord, Kilkenny and Leonard.

      Mr. George A. Brown argued the cause for appellant (Messrs. Morrison, Lloyd, & Griggs, attorneys; Mr. Richard J. Ryan, on the brief).

      Mr. George B. Gelman argued the cause for respondent Peoples Bank of South Bergen County (Messrs. Calissi, Gelman, Ouccio & Klinger, attorneys).

      Mr. Arthur J. Bills, Attorney General of Hew Jersey, filed statement in lieu of brief on behalf of Horace J. Bryant, Jr., Commissioner of Banking and Insurance of Hew Jersey (Mr. Joel L. Shain, Deputy Attorney General, of counsel and on the brief).
   The opinion of the court was delivered by

Conboed, S. J. A. D.

As to appellant’s contentions that the evidence does not support the determinations of the Commissioner that (1) conditions in the locality afford reasonable promise of successful operation by the proposed new bank, and that (2) the interest of the public will be served to advantage by the proposed bank, we disagree. The record as a whole provides substantial credible evidence of the affirmative of those propositions, having regard for the expertise of the Department in this area.

In the foregoing regard, appellant objects to the consideration by the Commissioner, as reflected by his opinion, of part of a 1967 comprehensive study ■—■ “The Structure of Banking in Hew Jersey” — by Professor Cranmer of Drew University, said to have been made at the request of Governor Hughes. The report is not made tho basis of any specific finding on any particular controverted fact by the Commissioner. It is merely quoted to the general effect that Hew Jersey is not overbanked and as to the desirability of enhancing banking competition. Appellant complains that the study was not made part of the record and that it had no opportunity to meet it.

We find no error in the Commissioner’s use of the Cranmer study merely to afford him scholarly background data and professional opinion helpful in relation to broad policy considerations pertinent to the application. Courts and administrative bodies commonly consult comparable studies in order to understand the technical background of a disputed problem for aid in resolving questions of law and policy, but not to decide a specific, controverted, material fact where the study was not previously made part of the record. Sec, e. g., In re Application of Kenilworth State Bank, 49 N. J. 330, 335-336 (1967); Esso Standard Oil Co. v. Holderman, 75 N. J. Super. 455, 467 (App. Div. 1962), affirmed o. b. 39 N. J. 355 (1963). See Davis, “Official Notice,” 62 Harv. L. Rev. 537, 549 (1949).

Elizabeth Federal S. & L. Ass’n v. Howell, 24 N. J. 488, 506-507 (1957), is not to the contrary. There the Commissioner relied ex parte upon "factual material” (p. 506) “developed specifically” for the purpose of deciding the case without affording any prior notice thereof and opportunity of meeting it to objectors.

We find no essential unfairness or prejudice to appellant in the Commissioner’s use of the mentioned material in the instant matter.

Appellant contends that the Commissioner had no jurisdiction to approve the charter for failure of the prerequisite filing, along with the certificate of incorporation, of affidavits by each incorporator stating, among other things, that, except as otherwise stated in the affidavit, the incorporators are the true and only parties in interest. However, it appears from the record that such affidavits were filed with the Commissioner, so that the statute was literally followed. There was no requirement that such affidavits be part of the hearing record, although it would seem that technically they were, the Commissioner having announced at the hearing that the affidavits were before him. In any event, the affidavits were a matter of record in the Commissioner’s office, available for inspection by anyone.

However, appellant points out that the affidavits on file were demonstrably false in their flat assertion that affiants were each “acting on [their] own behalf as an incorporator of the proposed bank and to [their] knowledge and belief the incorporators * * * are the true and only parties in interest.” In fact, as fully developed at the hearing, the incorporators contemplated, and shortly thereafter entered into a subscription contract with Peoples Trust Company of Bergen County, Teal sponsor of the applicant bank, contemplated to be an affiliate thereof, for assignment to shareholders of Peoples of an aggregate of not less than 53% of the common capital stock of applicant bank. There thus was an inexcusable falsity in the affidavits, and this cannot be condoned by this court either in this case or as a precedent for practice in other cases. But we do not think it should be fatal to the application. The statute does not require substantively that the incorporators shall be the only parties in interest, but only that the affidavits shall reveal whether or not they are. The true facts were developed in full on the hearing before the Commissioner. Neither he nor the objector was prejudicially misled by the affidavits.

The practice of chartering affiliated banks has been judicially approved and was not forbidden by statute effective as of the time of this approval. In re Application of Kenilworth State Bank, supra. Cf. L. 1968, c. 415, effective July 17, 1969, prohibiting any officer, director or employee of any bank to be an incorporator of another bank. We find no merit in the appellant’s assertion that the present application for an affiliate bank is an illegal circumvention of the New Jersey Banking Act merely because the moving force behind the application was a bank in another municipality.

Appellant points out that as a condition of approval of a charter the Commissioner is required to determine “as a result of the hearing and of the independent investigation made or caused to be made by him” seven specific facts. N. J. S. A. 17:9A-11 (D). It alleges that, in addition to the factors we have discussed at the head of this opinion as adequately established, there was no proof at the hearing concerning statutory item (4), that no fees, commissions or other compensation were paid for the promotion of the bank or the sale of its stock, and as to item (3), that the proposed officers possess the qualifications, experience and character required for their duties and responsibilities.

Concerning item (4), attestation of this fact was included in the affidavits of the incorporators which the Commissioner announced at the outset of the hearing he had before him. In the absence of any suggestion or proof by appellant of untruth in that regard, this satisfies the statute.

The applicant argues that item (3), as appellant interprets it, could not be satisfied because, at the time of the hearing, bank officers had not yet been selected, it not having been practical to do so in advance of approval of the charter. In his decision the Commissioner deferred his investigation into the qualifications of applicant’s operating personnel until applicant submitted its request for a certificate of authority to commence doing business. The Attorney General tells us this is the longstanding practical construction of the act by the Department. We agree with applicant that the statute does not necessarily call for a hearing and determination before approval of the charter of the qualifications of all operating officers eventually selected. The act calls for a hearing in respect of qualifications of “the proposed officers,” etc. If, for reasons of practicality familiar to the Commissioner as an expert, less than all the eventual operating officers had been selected by applicant by the close of the hearing, we regard it as not contrary to the statute, sensibly construed, to permit the Commissioner to defer his investigation and approval in this regard in respect of those not yet selected. However, the act clearly contemplates that a hearing on the qualifications of all eventual officers should be held on notice to all parties in interest and a favorable determination made thereon before the bank is allowed to open for business. We assume this will be done in this case.

Finally, appellant contends there was failure to satisfy a statutory requirement that the certificate of incorporation state the street, street number and municipality in which the principal office of the bank is located. N. J. S. A. 17:9A— 3. We find to the contrary. The necessary information was provided. Appellant argues there was a violation in that insufficient evidence was presented to establish applicant’s contractual right to the site. In the absence of any contrary evidence by appellant, we think the proofs submitted by applicant in this respect sufficed.

Judgment affirmed.


author: Foley, J. A. D.

text:
    STEVEN PFAU, ET AL., PLAINTIFFS-APPELLEES, v. TRENT ALUMINUM COMPANY, ET AL., DEFENDANTS-APPELLANTS.
    Superior Court of New Jersey-Appellate Division
    Argued June 9, 1969.—
    Decided July 3, 1969.

      Before Judges Sullivan, Foley and Lewis.

      Miss Sonia Napolitano argued the cause for appellants (Messrs. Pindar, McElroy, Connell & Foley, attorneys; Mr. John A. Pindar, of counsel; Mr. Richard D. Catenacci, on the brief).

      Mr. Jerome L. YesTco argued the cause for appellees (Messrs. YesTco and Marcus, attorneys; Mr. Jacob D. Fuchs-berg and Mr. Elliot F. Topper, of counsel).
   The opinion of the court was delivered by

Foley, J. A. D.

With our leave defendants appeal from an interlocutory order of the Law Division by which the fourth separate defense set forth in defendants’ answer was stricken. The precise question presented is whether, under the “grouping of contacts” or “center of gravity” approach adopted in this State by Mellk v. Sarahson, 49 N. J. 336 (1967), the law of Iowa which precludes an action, based upon ordinary negligence, by a guest in an automobile against his host, applies, or whether the law of New Jersey, which permits such a recovery, is applicable.

Plaintiff Steven Pfau was injured while riding as a guest passenger in a car driven by defendant Bruce Trent and owned by defendant Trent Aluminum Company. The accident occurred in Iowa on April 33, 1966 when the Trent car, while rounding a curve, crossed over the center line of a roadway and collided with a vehicle proceeding in the opposite direction.

Plaintiff, a domiciliary of Connecticut, was a student at Parsons College in Fairfield, Iowa. Defendant Bruce Trent, a New Jersey domiciliary, was also a student at that college. Both lived in college dormitories in Iowa. Trent Aluminum Company is a New Jersey corporation which is owned by Brnce Trent’s father. The occupants of the oncoming car, Joseph Davis, his wife and child, were Iowa residents and domiciliaries, and they all were seriously injured in the accident.

It was conceded on the oral argument that the Davis claims have been settled by defendants’ insurance carrier, a New Jersey corporation, and that such claimants have no further interest in the matter. The vehicle driven by Trent was licensed and insured in New Jersey.

Pfau and Trent first met as students at Parsons College. Several days prior to April 33, 1966 Trent agreed to take Pfau with him on a trip to Columbia, Missouri. The boys were to stay over in Missouri and return to college in Iowa at the conclusion of the weekend. Pfau and Trent left Fairfield, Iowa, in the early evening of April 33, 1966. The accident occurred about one hour later.

The traditional rule for determining choice of law in tort cases has been lex loci delicti, the law of the place where the wrong occurred. Mellk v. Sarahson, supra, at page 228. However, in that case the court went on to say that recently there has been recognition by courts and commentators that the mechanical application of lex loci delicti to all choice-of-law problems may work unjust results in a particular case.

Following Babcock v. Jackson, 13 N. Y. 2d 473, 240 N. Y. S. 2d 743, 191 N. E. 2d 279, 95 A. L. R. 2d 1 (Ct. App. 1963), the Melik court adopted the grouping of contacts or center of gravity principle and concluded that New Jersey had the paramount interest in fixing the rights and liabilities arising from the host-guest relationship and that the foreign state in which the accident occurred had no real interest in having its guest statute applied, pointing out, among other things, that both plaintiff and defendant were residents of New Jersey and that the host-guest relationship was formed and was to end here. 49 N. J., at page 234.

In Babcock the court, in refusing to apply an Ontario guest statute and holding that the concern of New York was unquestionably the greater and more direct, the interest of Ontario being at best minimal, stated:

“Tlie xiresent action involves injuries sustained by a New York guest as the result of the negligence of a New York host in the oiieration of an automobile, garaged, licensed and undoubtedly insured in New York, in the course of a week-end journey which began and was to end there. In sharp contrast, Ontario’s sole relationship with the occurrence is a purely adventitious circumstance that the accident occurred there.” (240 N. Y. S. 2d, at p. 750, 191 N. E. 2d, at p. 284).

In Muffalone v. Woodson, 99 N. J. Super. 559 (App. Div. 1968), certification denied 51 N. J. 577 (1968), we upheld an instruction to the jury that the law of New York applied with respect to the liability and responsibility for a death and injuries to persons or property resulting from negligence in the use or operation of such vehicle in the business of such owner, or otherwise, by using or operating the same with permission, express or implied, of such owner. See Vehicle and Traffic Law, McKinney’s Consol. Laws, c. 71, § 388. In that case, a wrongful death action, decedent was killed in an automobile accident in New Jersey when the ear driven by her husband and owned by his father was in collision with an automobile operated by a New Jersey resident. Citing Bat code and Mettle, supra, we held that in the circumstances, which included in addition to the facts stated, that the only purpose of a trip from New York to New Jersey was to pay respects to a deceased member of the family, after which, presumably, tile car in which deceased was riding would return to Now York, the substantive law of that state was controlling. It was our view that there were no New Jersey residents whose interest would bo protected by the law of the forum state, whereas New York had an interest in the adequate compensation for the wrongful death of a resident. 99 N. J. Super., at page 563.

Plaintiff cites and places considerable reliance upon Mullane v. Slavola, 101 N. J. Super. 184 (Law Div. 1968). With out expressing any view as to the holding in Mullane, we conclude that it is readily distinguishable in the important respect that in that case both plaintiff’s decedent and defendant were domiciliaries of New Jersey. The.re, the court said:

“As I view it, * * * New Jersey law should be applied in the instant case. Even though Florida’s ‘contacts’ may be quantitatively greater than New Jersey’s they are qualitatively less significant. The salient consideration is that all the parties at the time of the accident were domiciled in New Jersey. Their Florida residences were temporary. New Jersey’s interest and concern in the parties as domiciliaries was greater than Florida’s interest in them as temporary residents, hence New Jersey’s public policy requiring drivers to exercise greater care for passengers than Florida does, should control.” (101 N. J. Super., at p. 189; emphasis added)

In the present case the basis for the trial court determination was that as between Iowa and New Jersey, the latter had the more significant contacts with the parties and the greater governmental interest in the matter. We cannot agree.

The only alleged contacts of New Jersey were that defendants were domiciliaries of this state and their vehicle was licensed in New Jersey and insured by a New Jersey corporation. As we have noted, the ill-fated trip commenced in Iowa and was designed to terminate in that state, and the accident occurred there. Moreover, the parties to the instant litigation were temporary residents of that state and the injured persons in the other car were residents of that state. Furthermore, the host-guest relationship came into being in Iowa. Lastly, Pfau was a domiciliary of Connecticut which is a lex loci delicti jurisdiction.

It is our judgment that upon the facts of the instant case it clearly appears that applying the "center of gravity” or "most significant contacts” test Iowa had the more significant contacts with the parties to this litigation.

Therefore, for the reasons stated, we conclude that the guest statute of Iowa was properly pleaded by defendants. Accordingly, the interlocutory order of the Law Division is set aside with the direction that the fourth separate defense of defendants’ answer be reinstated.

Keversed.


author: Collesteb, J. A. D.

text:
    STATE OF NEW JERSEY, CHARLES J. KROL, REGIONAL SUPERVISOR, PLAINTIFF-RESPONDENT, v. LARRY SELIGSON, t/a CHICKEN DELIGHT, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellant Division
    Argued November 12, 1968—
    Decided July 7, 1969.

      Before Judges Gatjlexn, Collesteb and Labeecqtje.

      Mr. Sidney Salant, a member of the New York Bar, argued the cause for appellant (Messrs. Lum, Biunno & TompJcins, attorneys).

      Mr. Jerome M. Katz, Deputy Attorney General, argued the cause for respondent (Mr. Arthur J. Sills, Attorney General of New Jersey, attorney).
   The opinion of the court was delivered by

Collesteb, J. A. D.

Defendant appeals from a judgment imposing a penalty of $50 for violation of a regulation promulgated by the state superintendent of the Division of Weights and Measures under the authority of Title 51, Chapter 1, of the statute which deals with the subject of sales of products by measure, weight or containers.

The facts are not in dispute. Defendant conducts a business in Union City under a “Chicken Delight” franchise where pieces of chicken are cooked to order and sold in buckets for off-premises consumption. On February 28, 1968 Citarlos Krol, regional supervisor of the Division, after examining the menu at defendant’s place of business, placed an order for 12 pieces of chicken priced at $3.12. Defendant placed the chicken parts in a batter, cooked them in an electric oven for abont 15 minutes, and then delivered them to Krol in a cardboard bucket. The chicken parts were not weighed before or after they were cooked.

Krol brought suit in the county district court charging the defendant with having sold poultry by the bucket and not by net weight in violation of Regulation 16, promulgated pursuant to N. J. S. A. 51:3—61, and sought recovery of a penalty prescribed by N. J. 8. A. 51 :l-89. At the conclusion of the trial the court entered judgment in favor of the plaintiff imposing a $50 penalty against the defendant. This appeal followed.

Regulation 16 was promulgated by the state superintendent under the purported authority of N. J. 8. A. 51:1-61, which states:

“The state superintendent may make rules and regulations, which shall govern the sale of commodities.”

Regulation 16 provides as follows:

“Meat and poultry to be sold by net. weight only.
1. All meat and/or poultry, offered for sale or sold in the State of New Jersey, shall be offered for sale or sold on the basis of avoirdupois net weight only, and every person, firm, copartnership or corporation selling or offering for sale any meat and/or poultry shall at the time of sale or delivery thereof weigh by avoirdupois weight the quantity of meat and/or poultry sold or delivered and for such purpose shall use a scale tested and sealed by the State Department of Weights and Measures or by any county or municipal superintendent or Assistant Superintendent of Weights and Measures.
v * * * * s? * s,
3. The term ‘poultry’ as used in this act shall mean and include chickens, ducks, geese, turkeys, guineas, and all products the basic ingredient of which is poultry of the prescribed classes; it being provided, however, that squabs shall be exempt from the requirements of this regulation.
4. The penalty for violation of this regulation shall be not less than twenty-five dollars.
5. Effective April 30th, 1932. This regulation is promulgated under the provisions of Section 18, Article 4 [A. J. S. A. 51:1-61], of the laws relating to weights and measures, part of which reads as follows: ‘The State Superintendent may also make rules and regulations which shall govern the sale of commodities.’ ”

Defendant contends that N. J. S. A. 51:1—61 is unconstitutional because the Legislature failed to provide any standards to guide the state superintendent in the exercise of his power to make rules and regulations governing sales of “commodities,” or to determine what commodities are placed within his power. Defendant argues that “commodities” could include everything from pins to steel beams and even locomotives. This point presents a serious question which we find unnecessary to decide because of our disposition of the case on other grounds. However, we think it is appropriate to point out that the statute may be vulnerable as now drawn in order that the Legislature, in its wisdom, may correct it to preclude a future challenge that it is unconstitutional.

See, for example, the Model State Law which has been adopted by the National Conference on Weights and Measures, sponsored by the United States Department of Commerce, National Bureau of Standards, which deals with the sale of foods and food products by weight, including the sale of cooked foods prepared for off-premises consumption.

It is well recognized that the Legislature has the power to delegate to an administrative agency the exercise of a limited portion of its legislative power with respect to a specific subject matter. However, the Legislature may not vest unbridled or arbitrary power in the agency but must furnish reasonably adequate standards to guide it. Ward v. Scott, 11 N. J. 117, 123-124 (1952). The standards need not be expressely stated in a particular section of the statute if they may reasonably be inferred from the statutory scheme as a whole. Schierstead v. City of Brigantine, 20 N. J. 164, 169 (1955). And, there is no unconstitutional delegation of legislative power so long as administrative discretion is hemmed in by standards sufficiently definitive to guide its exercise. Cammarata v. Essex County Park Commission, 26 N. J. 404, 410 (1958).

In the instant case the delegation of power set forth in N. J. S. A. 51:1-61 provides simply that, “The state superintendent may make rules and regulations, which shall govern the sale oE commodities.” The term “commodities” is not defined in the statute. Webster’s New International Dictionary (2d ed. 1958) defines it as, “* * * everything movable that is bought and sold—goods, wares, merchandise, produce of land, etc.” Thus, hypothetically, the state superintendent under N. J. S. A. 51:1-61 could regulate the sale of everything movable. The superintendent argues that here he does not claim the right to regulate the sale of everything movable, only food. But, nowhere in the many sections of the statute is there a provision relating to the sale of all foods at retail. Instead, there are provisions limited to specific foods — 51:1—10 (milk and cream), 51:1—17 (foods which are capable of being measured by dry capacity measure), 51 \1-18 (bread), 51 :1-2I to 28 (fruits, berries and vegetables), 51 -.1—09 (food in packaged form), 61 -.1-31.1 to 81.10 (ice cream and frozen products). On the other hand, since the statute deals with many things other than food, we cannot say that “commodities” must mean food. For example, the statute covers coal, charcoal, thread, seeds, ice, grain, etc. Therefore, we find it difficult to infer from the context of the statute that the state superintendent has the power to regulate the sale of all foods at retail.

In the State of New York the sale of cooked-to-order chicken parts for off-premises consumption (Chicken Delight) is governed by a regulation promulgated by the Commissioner of Agriculture and Markets. However, that regulation is based on a statute: section 193 of the Agriculture and Markets Law, McKinney’s Consol. Laws, c. 69, which provides that all food and food products offered for sale at retail shall be sold or offered for sale by net weight, standard measure or numerical count as may be prescribed by the commissioner. The regulation promulgated by the commissioner under authority of the statute deals with the sale of meat, meat food products, and poultry (whole or parts) by net weight. It specifically exempts the sale of such foods which are sold for immediate consumption on the premises where sold or as one of several elements comprising a ready-to-eat meal sold as a unit for off-premises consumption. In Wickham v. Levine, 47 Misc. 2d 1, 261 N. Y. S. 2d 702 (Sup. Ct. 1965), affirmed 24 A. D. 2d 1035, 264 N. Y. S. 2d 785 (App. Div. 1965) and 23 N. Y. 2d 923, 298 N. Y. S. 2d 507 (Ct. App. 1969), the court enjoined the sale of Chicken Delight cooked-to-order chicken parts for off-premises consumption other than by net weight. However, the court in Wickham based its decision upon an interpretation of the stalule as implemented by the regulation.

Our statute, Tille 51, unlike that in Hew York, does not specifically provide for the sale of food or food products at retail (other than noted above). The statutory authority granted to the state superintendent to make rules and regulations is broad and unrestricted. We believe that the statute should be corrected to preclude an attack upon its constitutionality. At this time we need go no further than to hold, as we do, that Regulation 16 does not apply to the Chicken Delight operation.

The defendant contends that he does not sell poultry or poultry products but prepared food which constitutes a meal or a component part of a meal which is cooked-to-order. The Division, interpreting its own regulation, alleges that the sale of poultry by the piece rather than by net weight violated the regulation, regardless of whether it was cooked or not cooked at the time of the sale. It argues that a bucket of cooked chicken parts is a “product, the basic ingredient of which is poultry,” and that it falls within the same classification as bologna, salami, boiled ham, smoked ham, sliced turkey, corned beef and similar precooked foods, all of which are covered under Regulation 16.

We think there is a distinct difference between the cold cuts of poultry and meat referred to by the Division and plaintiff’s buekets-of-ehicken. The cold cuts are fully prepared before they are exposed for sale. In the Chicken Delight operation the food is not prepared before it is exposed for sale. The customer orders from a menu a bucket of chicken parts which contains a serving for one or more persons at a unit price. The chicken parts are then breaded in a special batter and cooked. They are then delivered to the customer either at the store or his home for off-premises consumption. We see no difference in the Chicken Delight operation than the sale of the familiar “hamburger,” “hot dogs” and “pizza pies” which are cooked-to-order and sold by unit and not by weight for off-premises consumption.

We further note that in the enactment of the Sales Tax Act (N. J. S. A. 54:325-1 el, seq.) the Legislature recognized the difference between the sale of food cooked-to-order for off-premises consumption (which is subject to the tax) and sale of food in an unheated state (other than sandwiches) which is of the type commonly sold in the same form and condition in food stores (which is not subject to the tax). N. J. S. A. 54:325-3(c) (3). It is undisputed that the Chicken Delight operation is subject to the sales tax.

We find nothing in the language of Regulation 16 to indicate that it applies to the sale of food, cooked-to-order, for off-premises consumption. Accordingly, we conclude that the sale of chicken parts, cooked-to-order, described as Chicken Delight, is not governed by the regulation and therefore the judgment entered in this case must be set aside.

We find it unnecessary to pass on the other points raised by the defendant.

Reversed.


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

text:
    IN THE MATTER OF THE GUARDIANSHIP OF DARQUITTA COPE AND BETTINA COPE.
    Superior Court of New Jersey Appellate Division
    Argued February 3, 1969—
    Decided July 8, 1969.

      Before Judges Gauliyin, Collesteb and Labeecque.

      Mr. Richard 8. Semel argued the cause for appellant Betty Cope (Mr. Ronald B. Atlas, on the brief).

      Mr. Eugene T. Urbaniak, Deputy Attorney General, argued the cause for New Jersey Bureau of Children’s Services (Mr. Arthur J. Sills, Attorney General, attorney).
   The opinion of the court was delivered by

Gaulkitst, S. J. A. D.

This case is here on appeal by Betty Cope from a judgment of the Essex County Juvenile and Domestic Eolations Court awarding guardianship, care, custody and control of her two daughters, Bettina and Darquitta, to the New Jersey State Bureau of Children’s Services (Bureau). The order terminates all parental rights between the children and their mother and grants the Bureau full power over the person and property of the children, but “without authority to consent to adoption.” The mother contends that the competent evidence adduced at trial fails to support this award. We agree.

The Bureau proceeds here under N. J. S. A. 30:4(7-15, which provides in pertinent part that a petition for guardianship may be filed whenever “it appears that the best interests of any child under the care or custody of the Bureau

of Childrens Services require that he be placed under guardianship.” N. J. S. A. 30:4C-15 (c). While literally the statutory test is “the best interests of the child,” this does not mean that the Bureau need show no more than that the Bureau’s care has proved more beneficial to the child than that of its parents. All sections of N. J. S. A. 30 :4C, including N. J. S. A. 30 4(7-15 (c), are “to be administered strictly in accordance with [the following] general principles * * * which are declared to be the public policy of this State:

“(a) that the preservation and strengthening of family life is a matter of public concern as being in the interests of the general welfare;
(b) that the prevention and correction of dependency and delinquency among children should be accomplished so far as practicable through welfare services which will seek to continue the living of such children in their homes; * * * * ❖

As we have said in the analogous context of adoption proceedings, the rights of the child’s natural parents are essential factors for judicial consideration.

“The parental relationship is an integral part of the ‘best interests’ test [N. J. S. A. 9 :3-27 subd. C] ; otherwise any person could adopt a child if he were potentially a better parent than the child’s natural mother or father. The welfare of the child is inextricably bound up with the rights of the parent.” In re N, 96 N. J. Super. 415, 423 (App. Div. 1967).

Although the Bureau insists that it will return the children to their mother as soon as she is able to care for them, and the order of the court below forbids adoption apparently with this result in mind, the award of guardianship nonetheless terminates parental rights “for all purposes” and vests full and complete control in the Bureau. Any decision to return the children to their mother appears to be completely within the Bureau’s discretion.

It is, therefore, incumbent upon the Bureau, or other petitioner for guardianship, to show more than that it will provide a belter home for the child. It must demonstrate affirmatively that the child’s “best interests” will be substantially prejudiced if he is permitted to remain with his parent — e. g., that his health and development have been or probably will be impaired and that the parent is unlikely or unwilling to change, or that the parent is in some way incapable of caring for the child or unwilling to do so.

The Bureau’s petitions for guardianship allege that “it is in the best interests” of the Cope children that they be placed under the Bureau’s guardianship because “a potentially dangerous situation of abuse would exist should [Bettina] be returned to Miss Cope at present” and “a potentially dangerous condition of abuse and neglect would exist should Miss Cope request premature removal of Darquitta from placement.”

The evidence revealed that in June 1967 Miss Cope consented to the placement of her two young daughters (then ages 3 and 4) in the temporary custody of the Bureau, which housed them at the Youth Consultation Service in Newark. Although this was the only time the Bureau took custody of the children, it had previously exercised supervisory care over Darquitta after Miss Cope had placed her in a foundling home, and, in June 1965, Miss Cope had agreed to in-home supervision by the Bureau. In late 1965 Miss Cope placed the children in the Bureau’s day care center while she worked. Miss Cope visited the children in September 1967 and apparently removed Bettina from the Bureau. Custody of the child was apparently reasserted by the Bureau after about a month. Miss Cope testified that she had intended the commitment to be temporary only and that she had intended to take the children back when she was rested.

The evidence supporting the Bureau’s petition for guardianship fell into two general categories: testimony concerning the condition of the children after they were placed with the Bureau in June 1967, and testimony tending to show conditions in the Cope home. In both cases, almost all of the evidence adduced was hearsay testimony. Staff members from the Bureau were permitted to testify, over repeated objections by counsel for Miss Cope, to reports of-the physical and mental condition of the children while in the Bureau’s custody, as well as to reports that Miss Cope mistreated the children when they were at home.

Taken together, this evidence showed nothing more than that the children were in poor physical and mental condition when the Bureau first received them; that they flourished while in the Bureau’s care, and that they retrograded when the mother visited them and when she kept Bettina with her. There is very little in the competent evidence to establish the potentiality for abuse and neglect alleged by the Bureau in their petitions. Aside from the hearsay “reports” of mistreatment in the Cope home, the only competent evidence in this regard was the testimony of an Englewood police officer that, in response to a call from an unidentified resident, he appeared at the Cope apartment and found Miss Cope holding an ironing cord and one of the children “in hysterics.” The officer found no evidence of physical abuse of the child and was unable to ascertain the cause of the child’s crying. Miss Cope told him it was none of his business and she would discipline her children as she saw fit. The officer stated that the apartment was “untidy.”

As for the period in September 1967 during which Miss Cope “snatched” Bettina from the Bureau, there was no showing that the mother injured or otherwise mistreated the child. Although it was testified that the purpose of the commitment was “to permit the children to have the kind of services that would benefit them and also to permit the mother to undertake some care and treatment for herself,” we are not informed as to what, if any, treatment was needed by Miss Cope. In particular, there was no showing in the record that she was in any way incapable of earing for her children.

The trial court’s “findings” were simply that the children “were in a condition which indicated that they were deprived children.” There was no explanation of what the court meant by “deprived” here, no indication of the facts upon which this conclusion was based, and no finding that the children had been abused or neglected by their mother or that she was incapable of earing for them.

In view of the fact that almost all of the evidence presented in support of the award was hearsay, we are presented with the difficult question of what type of evidence is to be considered competent in a proceeding of this type. Although we are not dealing here with a criminal proceeding against the parent, the allegations of the petitions concern her conduct and it is quite apparent that substantial Tights of hers are involved. In a situation such as this it is of great importance that the evidence upon which judgment is based be as reliable as the circumstances permit and that the answering parent be given the fullest possible opportunity to test the reliability of the petitioner’s essential evidence by cross-examination.

On the other hand, we are dealing here with a statutory scheme established to provide a means by which the Bureau or other petitioner may obtain guardianship of children in the Bureau’s custody. As the Bureau and the court below both properly indicate, a rule requiring all Bureau personnel having contact with a particular case to give live testimony on ail the matters within their personal knowledge would cause an intolerable disruption in the operation of the Bureau.

As a result, it becomes necessary to allow certain evidence to be produced in a hearsay form while seeking to give full protection to the rights of the parent. In reaching this balance, we conclude that in cases of this type the Bureau should be permittted to submit into evidence, pursuant to Evidence Rules 63(13) and 62(5), reports by Bureau staff personnel (or affiliated medical, psychiatric, or psychological consultants), prepared from their own first-hand knowledge of the case, at a time reasonably contemporaneous with the facts they relate, and in the usual course of their duties with the Bureau.

Reports of this type, prepared by the qualified personnel of a state agency charged with the responsibility for overseeing the welfare of children in the State, supply a reasonably high degree of reliability as to the accuracy of the facts contained therein. The parent remains free to offer evidence contradicting any statements present in such reports and, of course, the trier of the facts may in his discretion call for live testimony on any point.

In the event that such reports contain conclusions drawn from the facts stated in them, the reports may still be admitted, but they should be treated as no more than prima facie evidence of the validity of the conclusions contained in them. If the parent produces evidence refuting such conclusions, petitioner would then have the burden of producing live testimony in order to establish their validity.

In the case of conclusionary statements, the author should be a person qualified to give an opinion on the subject under discussion (e. g., a psychiatrist or psychologist for diagnosis of mental disease or impairment), and no conclusion should be received unless the report contains a statement of the facts or procedures upon which it is based.

As to oral or written reports from neighbors, the police or other persons, the usual rules governing admissibility of hearsay evidence should apply.

In the present case it appears that several of the Bureau’s witnesses testified from written reports prepared by other Bureau personnel. None of these reports was placed in evidence (despite a request by counsel for Miss Cope that they be offered) and we have no way of knowing from the record whether the testimony fully and accurately reflected their contents. Nor did Miss Cope or her counsel have the opportunity to examine these reports. None of the authors of these reports were called to testify, and nothing was introduced to establish the circumstances under which they were prepared. The testimony of the witnesses was “double” (sometimes “triple”) hearsay, making verification of its accuracy virtually impossible.

Since a reversal and remand will be necessary, a word might be said about the “pleadings” used in this case and their relation to the evidence adduced. N. J. S. A. 30:4C-15 states that “a petition, setting forth the facts in the case, may be filed with the juvenile and domestic relations court * * *” (emphasis added). Petitioner in the instant case set forth nothing but the broadest of allegations of potentiality for abuse and neglect, with no “facts in the ease” to support them. Under this state of affairs it is difficult to see how the mother here could adequately prepare a defense to the charge of abuse and neglect. Having, as she does, a very substantial interest in the outcome of the case, and in view of the fact that the charge in the petitions is directed at her conduct or potential conduct toward her children, she is entitled to be reasonably apprised of at least the general factual basis for the allegations in the petitions.

Moreover, it follows from this that the proofs at trial must support the allegations of the petitions in order for petitioner to succeed, and that the trial court should present findings of fact sufficient to enable us to determine if this has been done. The fact that the proofs support other, theretofore unspecified, grounds for award of guardianship, should not be sufficient, since the defending parent has had no opportunity to prepare a defense to the undisclosed allegations. This does not mean that the parties and the court are bound rigidly and precisely to the wording of the petitions. It does mean that the parent has a right to be fairly apprised of the grounds upon which petitioner will rely in seeking guardianship of his children and the grounds upon which the court has rendered its award.

The judgment is reversed and the cause remanded for service of adequate petitions, a full hearing on the merits thereof, and a decision by the court based on sufficient findings of fact, in conformity with this opinion. The Bureau shall retain custody of the children, with such reasonable visitation privileges as it may fix, pending the outcome of this case. Of course, nothing herein is to be taken as an expression of our opinion as to the ultimate merits of the case. That will be for the trial court to decide.


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

text:
    FRANK FORTE AND LOUISE B. FORTE, HIS WIFE, NICHOLAS D'IPPOLITO AND KATHERINE D'IPPOLITO, HIS WIFE, LEWIS D'IPPOLITO AND MADELINE D'IPPOLITO, HIS WIFE, JOSEPH LORENZO AND KATHERINE LORENZO, HIS WIFE, EDO BARZELATTO AND MARY-ANN BARZELATTO, HIS WIFE, AND HERWIN CENTERS, INC., PLAINTIFFS-RESPONDENTS, v. THE BOROUGH OF TENAFLY AND THE PLANNING BOARD OF TENAFLY, DEFENDANTS-APPELLANTS.
    Superior Court of New Jersey Appellate Division
    Argued June 9, 1969—
    Decided July 8, 1969.

      Before Judges Gatjlkust, Collester and Labrecque.

      Mr. Donald W. DeCordova argued the cause for appellants (Messrs. Morrison, Lloyd and Griggs, attorneys).

      Mr. 0. Conrad Schneider argued the cause for respondents {Messrs. Schneider, Schneider, Behr & Carlton, attorneys).
   The opinion of the court was delivered by

GauIiKIW, S. J. A. D.

Defendants (hereinafter Tenafly) appeal from a judgment declaring Tenafly’s amended zoning ordinance unconstitutional insofar as it forbade the construction of a supermarket upon plaintiffs’ lands.

Prior to August 1967, the zoning ordinance permitted such a use in the zone in which plaintiffs’ lands were situated. Early in 1967 plaintiffs applied to the building inspector for a permit to build the building, and to the planning board (board) for approval of its site plan and parking area. The board, aided by Kendree and Shepherd, planning consultants, was then engaged in a planning study of the borough with a view toward a comprehensive master plan. The consultants had recommended and the board agreed that the “central business core” of the borough should not only be preserved as the borough’s retail shopping area, but strengthened and improved. This was to be- done principally by improving the roads and the traffic pattern in said core to eliminate through-traffic and traffic congestion, and by forbidding retail businesses in the rest of the borough. This the board and its advisers felt would encourage retail businesses in the area to remain and improve and expand their properties, thus improving the appearance and enhancing the value of all properties in the business area, and providing the borough with an inviting “downtown” center. If retail businesses were allowed to spread along the roads throughout the borough, it was believed the central business area would deteriorate and decay. Therefore, instead of approving plaintiffs’ application, the board adopted a resolution asking “that an interim zoning ordinance amendment be adopted in order to create a new district known as the C-2 District in order to discourage and restrict the spread of retail business beyond the downtown business core * * Shepherd, the borough’s planning consultant, testified that 93% of all of the borough’s retail business establishments were'in the central business core.

The governing body agreed and, on November 28, 1967, passed ordinance No. 939. The ordinance recited the resolution of the planning board and created the C-2 District, stating

“A. Intent — This district is intended for commercial and wholesale services and small local convenience neighborhood service establishments and other businesses not suited to the general retail business zone, and to provide uses which will not have an adverse effect upon the downtown business core.”

The C-2 District included plaintiffs’ property.

That portion of the C-2 zone here involved included all the lands previously contained in the business zone on the west side of County Road north of Mahan Street to the Cresskill border. Plaintiffs’ lands were on said side of County Road, beginning at Prospect Terrace, the street north of and parallel to Mahan Street. At the time of the passage of the amendment there were a number of businesses in the new C-2 zone. Coming south from the Cresskill border on said side of County Road there was a Robert Hall clothing store. In the next block, between Summit Street and Hudson Avenue there was an Esso Service Station, Midtown County Rambler (selling new and used cars), County Auto Parts, an unoccupied but recently renovated business building and a funeral home. Continuing south, in the next block there was Lamb Studios (manufacturers of ceramics) and property occupied jointly by Stryker Drafting and Manufacturing Company and Poretta Plumbing and Heating Company. Then came plaintiffs’ lots. Below Prospect Terrace there was a barber and beauty shop, a tavern with a catering service, a TV repair shop and a small grocery store with living quarters on the second floor. On the easterly side of County Road, opposite the premises in question, (zoned residential), there is a Ford automobile agency at the corner of Summit Street, a gasoline station at the corner of Hudson Avenue, between Hudson and Prospect a dance school and studio, and on the corner of Prospect and Connty Road a cocktail lounge. The land abutting plaintiffs’ property to the rear is in the M-l industrial zone.

Plaintiffs immediately instituted this action to have the ordinance declared invalid. Defendants contend that the action should have been dismissed because plaintiffs failed to first apply for a variance. Under the circumstances here presented, it would have been futile to apply for a variance and therefore it was proper for plaintiffs to proceed as they did.

After a full trial, the trial court entered the judgment appealed from.

Defendants made some effort before the trial court to justify the elimination of retail stores in the C-2 zone on the ground that such uses would increase traffic on County Road, and so forth. The trial judge ruled, in effect, that since the true reasons were those expressed in the ordinance itself, it was not necessary to pass on the other alleged justifications. We agree, but add that the evidence does not establish any other justification. In other words, if the intention to preserve, rehabilitate and improve the central business area does not sustain the ordinance, it must fall.

The first question, then, is this: May a municipality which wishes to preserve, rehabilitate and improve • an established business area devoted chiefly to retail stores, zone the rest of the municipality against retail sales? We hold that it may.

Plaintiffs admit that if Tenafly were writing on a clean slate it could zone one part of the borough for retail stores and forbid all but residential use in the remainder of the borough. However, they argue that here Tenafly did not write on a clean slate; before the amendment of the ordinance they were in the same zone and had the same rights as those in the so-called central business core; much of the land in the C-2 District was already devoted to commercial uses, including retail, and since the ordinance was tailored to permit nearly all of them to continue as nonconforming uses, the amendment was a sham directed against them alone, solely because they wanted to build a supermarket. Plaintiffs insist it was passed for the sole benefit of the merchants in the central business core; therefore it was unlawfully oppressive, discriminatory and unconstitutional. Puthermoxe, even assuming that Tenafly would have had the right to forbid retail stores in an area not already commercial, it was arbitrary and unreasonable to do so in this area, already largely commercial (including retail) and abutting commercial and industrial zones. They point out that the Eobert Hall store sells only at retail, the gas station and the auto parts store are of course retail, and the manufacturers of ceramics may be selling at retail, as may the plumbing and heating and the barber and beauty shops, the tavern and the TV repair store. The small grocery store admittedly sells only at retail.

The trial judge ruled, in effect, that since the avowed purpose of the ordinance was “to protect the business district” it was invalid. We think that was too narrow a view. Zones are often created or uses therein curtailed in a manner which benefits other zones. The mere fact that this is one of the purposes of the ordinance does not make it invalid. An area desirable for industry may be zoned otherwise because industry would damage a nearby residential or business zone. Conversely, residential uses may be forbidden in or near industrial areas to encourage the full expansion of industrial plants therein without fear of complaint of nuisance. It is true that a municipality may not, by zoning or otherwise, exclude a particular use only because it will compete with an existing business or businesses (179 Duncan Ave. Corp. v. Jersey City, 122 N. J. L. 292 (Sup. Ct. 1939)), but if the exclusion of competition happens to be an incident or effect of otherwise valid zoning, it does not invalidate it.

Tenafly has what it considers to be a decaying central business core, choked by poor parking and traffic facilities. We take judicial notice that this is a problem which today faces many municipalities. Tenafly could have permitted the deterioration to continue into blight, hoping that new and desirable retail business areas would develop elsewhere. Instead, it appears that it wishes to make a strong effort to revitalize the present area. It elected to do so upon the recommendation of the planning consultants and the planning board. We hold that it has the right to do so, and the fact that the ordinance may give the central area a virtual monopoly over retail business does not invalidate it.

There is no evidence that Tenafly is trying to keep out supermarkets, or to benefit any particular business or businesses in the central business coTe. Tenafly is perfectly willing for supermarkets to open in C-l zones, where such uses are permitted, although it concedes that there may be difficulty in finding or assembling therein the necessary land.

Assuming that the ordinance is generally valid, it leaves the question whether it is unreasonable and therefore invalid insofar as it applies to plaintiffs’ property. Plaintiffs contend that it is unreasonable for the ordinance to take away from them the right to sell at retail because nearly every one of their neighbors in the C-2 zone sells at retail—some, like Robert Hall and the grocery, only at retail. They argue that the neighbors will continue to sell at retail either as permitted, accessory or nonconforming uses; hence it is discriminatory, arbitrary and unreasonable not to let them do likewise. But plaintiffs may use their property for the many purposes allowed by the ordinance. If they do, they will have the same rights to make incidental or accessory retail sales as those already carrying on similar businesses in the C-2 zone. The nonconforming retail stores are not so numerous as to make the ordinance unreasonable.

The judgment is reversed.


author: Eoley, J. A. D.

text:
    SAMUEL SHEITELMAN, INC., t/a THE MART, A NEW JERSEY CORPORATION, PLAINTIFF - APPELLANT, v. CHARLES HOFFMAN, t/a HOFFMAN CHAIR CO., DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued April 21, 1969—
    Decided July 9, 1969.

      Before Judges Sullivan, Eoley and Lewis.

      Mr. Samuel A. Gennet argued the cause for appellant (Mr. Aram B. Schefrin on the brief).

      Mr. H. Frank Pettit argued the cause for respondent (Messrs. Pettit, Carlton & Higgins, attorneys).
   The opinion of the court was delivered by

Eoley, J. A. D.

In this negligence—breach of warranty case plaintiff appeals from a judgment of the Law Division entered upon a jury verdict of no cause of action.

Plaintiff is a furniture dealer whose business establishment is located on Route 22, Union, New Jersey. In accordance with its annual custom plaintiff planned to conduct an out-of-door furniture sale over the Fourth of July holiday in 1963. In anticipation thereof, defendant was engaged to supply a tent for the purpose of protecting displays of furniture outside the store. Defendant had provided similar tents for the same purpose in 1961 and 1962. In 1961 plaintiff accepted defendant’s recommendations concerning the manner of erection of the tent and of the flooring within the tent, and was assured that the displayed merchandise would be protected from the elements. The installation made in those two years was satisfactory and apparently fully served plaintiff’s purpose.

On June 27, 1963 defendant again erected a tent and plaintiff proceeded to move its merchandise into it. On July' 2, after some of the merchandise had been transferred to the tent a rainstorm occurred. Water poured through a part of the tent and it collapsed. According to plaintiff, “all of our furniture, ninety-nine per cent, was completely ruined.” The present action followed.

In separate counts of its complaint plaintiff alleged negligence “in failing to properly erect and secure the tent and in failing to supply a tent of waterproof material,” and that defendant breached its warranty to provide a tent which was “fit for the use intended and of merchantable quality.” In answer, defendant alleged as an affirmative defense that the occurrence was an act of God.

At the trial, in support of its defense that plaintiff’s damage was the result of an act of God and therefore not actionable, defendant offered in evidence two articles which appeared in local newspapers on July 3 reporting severe-thunderstorms accompanied by rain on July 2, in the general area in which the town of Union is located. The court admitted large portions of the articles for their “factual content” and then, over the objection of plaintiff, read to the jury as follows:

“Ladies and gentlemen, counsel has asked that a newspaper report of certain facts reported by the Newark Star Ledger and the Newark News be read to you as indicating factual references to the nature of the storm. The Court has consented that parts of the articles in each paper be read to you. I shall do that myself.
The following appeared in the Newark Star Ledger in its Wednesday, July 3rd edition.
‘Strong gusty winds accompanying the rain in Millburn caused telephone, fire and power lines to fall. The Wyoming section of the residential town was left without power for a good part of the day. A large tree was blown down at Church and Spring Streets in Mill-burn. While the thunder showers in Newark provided little more than a trace of rain, approximately an inch fell in South Plain-field area. Five houses in Union County were struck by lightning. In Union lightning started a roof fire of a home. In Bloomfield lightning struck four homes within ten minutes. During the height of the storm trees were knocked down in Cedar Grove.’
The following appeared in the Newark Evening News Edition for July 3rd, 1963:
‘With thunder showers leading the way a mass of drier and somewhat cooler air moved in from the west to break the grip of the ten-day heat wave. Many communities reported damage as well as relief from the heat as gusty winds and rain swept the State. In Bloomfield a bolt of lightning hit a chimney of a home. Another bolt of lightning hit a fire alarm box in Bloomfield. In Millburn, telephone and power lines were down leaving the community’s Wyoming section without power for several minutes. A big tree was blown over in Millburn. And lightning struck the rafters of a house in West Caldwell. In Union County lightning struck houses in several communities. And wires were blown down in several communities, namely Hillside, Mountainside, Union and Roselle. Property damage was light and no one was injured. A bolt of lightning struck a tree in Union and in Elizabeth. Strong winds broke off a large tree branch. The rain was too brief in most areas to make a dent in the lengthy draught that plagued farmers and lawn tenders. Only three hundredths of an inch fell in Newark, although an inch was reported in South Plainfield.’ ”

The general rule is that newspapers or newspaper articles are not ordinarily admissible as evidence of the facts stated therein. 29 Am. Jur. 2d, Evidence, §885. This rule was followed by New Jersey in State v. Otis Elevator Co., 10 N. J. 504 (1962).

In this case, then, admissibility required a showing that the articles were a recognized exception to the hearsay rule. Defendant argues that Evidence Buie 63(13) validated the evidentiary quality of the articles as such an exception. Evidence Buie 63(13) provides:

“A writing offered as a memorandum or record of acts, conditions or events is admissible to prove the facts stated therein if the writing or the record upon which it is based was made in the regular course of a business, at or about the time of the act, condition or event recorded, and if the sources of information from which it was made and the method and circumstances of its preparation were such as to justify its admission." (Emphasis added)

We think the evidence in question was inadmissible and plainly prejudicial. The rationale of the rule is that “records, made in the regular course of business by those who have a competent knowledge of the facts recorded and a self interest to be served through the accuracy of the entries made and kept with knowledge that they will be relied upon in a systematic conduct of such business, are accurate and trustworthy.” Watts v. Delaware Coach Co., 5 Terry 283, 58 A. 2d 689 (Del. Sup. Ct. 1948). While in that ease the court was discussing the Uniform Business Records as Evidence Act, see N. J. S. 2A :82-34 through 37, that enactment differs from Evidence Rule 63(13) only in the respect that under the rule the custodian of the business record need not be called as a witness to attest its authenticity.

A newspaper article is a product of the newspaper business, as distinguished from a record maintained for the purpose of systematically conducting the business itself. While accuracy of reporting is highly desirable from the standpoint of the newspaper-reading public, inaccuracy of reporting bears no direct relationship to the newspaper publishing business itself. Generally, there is no legal obligation on a newspaper reporter to give such an accurate account of the subject upon which he reports as would vouch for its truthfulness. Compare Fagan v. Newark, 78 N. J. Super. 294, 319 (App. Div. 1963).

Moreover, there was no showing as required by Evidence Rule 63(13) that the sources of information upon which the reports were based and the method and circumstances of the preparation of them were such as to justify admission into evidence. Indeed, the identity of the reporters was not revealed. Their personal knowledge of the events reported was not shown, nor do we know whether the reports as published were rewritten or edited by office employees of the newspaper.

Eor these reasons we reverse and remand for a new trial.


author: Kilkenny, J. A. D.

text:
    NEW JERSEY TURNPIKE AUTHORITY, PLAINTIFF-RESPONDENT, v. H. JEROME SISSELMAN, ET AL., DEFENDANTS-APPELLANTS. NEW JERSEY TURNPIKE AUTHORITY, PLAINTIFF-RESPONDENT, v. BERGEN COUNTY ASSOCIATES, ET AL., DEFENDANTS-APPELLANTS.
    Superior Court of New Jersey Appellate Division.
    Argued June 16, 1969—-
    Decided July 10, 1969.

      Before Judges Coneord, Kilkenny and Leonard.

      Mr. Walter H. Jones argued the cause for appellants {Mr. Thomas W. Dunn, on the brief).

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

Kilkenny, J. A. D.

Defendants appeal from three orders of the Law Division, entered in connection with these condemnation proceedings commenced by the Turnpike Authority. The first two orders, made on April 5, 1968 by Judge Pashman, were based upon orders to show cause and/or motions. The third order was made by Judge Trautwein on October 4, 1968, following a plenary hearing.

Defendants’ appeal as to the first interlocutory order of April 5, 1968, is limited to paragraphs (1), (2), (3) and (5) thereof. Paragraph (1) denies defendants’ motion for leave to counterclaim for injunctive and other relief. Paragraph (2) strikes the answer of defendants Sisselman and Bergen County Associates, with the exception of such portions of the answer that raise issues of arbitrariness, oppressiveness and bad faith, as to which a plenary hearing was allowed. Paragraph (3) strikes the answer of defendant Borough of East Rutherford with the same exception applicable to paragraph (2), immediately above. Paragraph (5) provides that any construction or preparation of construction of a roadway by plaintiff on Sisselman or Bergen County Associates property after the date of actual full hearing, as provided in paragraph (4), shall be at the risk of plaintiff.

The other interlocutory order of April 5, 1968 denied a motion by defendants for an order compelling the talcing of oral depositions of the three Turnpike Authority commissioners.

Judge Trautwein’s order of October 4, 1968 was made upon conclusion of a plenary hearing before the judge, sitting without a jury. Based upon the trial judge’s oral opinion of September 18, 19'68, defendants’ motion to dismiss the Turnpike Authority’s complaint on the grounds of arbitrariness, oppression and bad faith was denied; defendants’ answers raising these questions were stricken, and judgment was entered appointing commissioners for the determination of an award of just compensation. The order contained the addendum that, in conformance with the court’s order of April 5, 1968, all construction or preparation for construction of a roadway on the property of defendants, or any of them, up to and including the date of October 4, 1968, "shall have been without risk to the plaintiff.”

We note preliminarily that the roadway in issue has been under construction unabated by any injunctive order during all the time in issue, and further construction progresses from dajr to day.

A summary of the litigation background seems to be in order. In July and August of 1967 the Turnpike Authority instituted condemnation proceedings to acquire two parcels of land in the Borough of East Butherford, allegedly owned or controlled by defendants, the Sisselmans. The acquisitions were deemed necessary in the public interest for the purpose of building a highway spur from the existing Turnpike at Exit 15 to its northerly terminus, thus by-passing Exit 16, a principal outlet for traffic to and from the Lincoln Tunnel. Such a project was expressly authorized by the Legislature. N. J. S. A. 27:23—23.2, L. 1966, c. 6, § 1, effective February 16, 1966.

In its declaration of taking and pursuant thereto and complaint filed, the Authority deposited into court $286,800 for one of the parcels and $93,000 for the other. The acquisitions of defendants’ two parcels were deemed necessary by the Authority because the established alignment of this highway spur required construction of two bridges over Berry’s Creek Canal, thus involving the lands in question. These bridges would form an integral part of the planned additional spur.

Defendants contested the Authority’s condemnation proceedings. They filed an answer in September 1967 in which they set forth the following separate defenses:

1. The proposed taking was arbitrary.
2. The Turnpike Authority had no power to take the land in question.
3. N. J. S. A. 27:23-1 et seg., creating the Hew Jersey Turnpike Authority and defining its powers and responsibilities, under which the Authority acted in the instant case, is an unconstitutional delegation of power.
4. The proposed taking violates 33 U. 8. 0. A. § 401 et seq.
5. The Authority failed to comply with the requirements of N. J. S. A. 40:55—1.13.
6. The complaint failed to state a claim upon which relief could be granted.
7. The complaint was insufficient in law.

In October 1967 defendant sought leave to counterclaim for dismissal and for an injunction against further condemnation proceedings on the grounds enumerated in numbers 4 and 5 above.

We need not detail the various other legal amendments, orders to show cause,-motions and affidavits during the following months, all of which led up to hearings before Judge Pashman as to the substantive validity of defendants’ answer and proposed counterclaim. Apparently, defenses numbered 2, 3, 6 and 7 had been abandoned. They have not been argued before us. The argument was limited to, and Judge Pashman’s decision of January 17, 1968 was concerned only with, defenses numbered 1, 4 and 5. Defenses 4 and 5 were dismissed for reasons hereinafter discussed. Only defense numbered 1, which had asserted arbitrariness, capriciousness, unreasonableness and bad faith on the part of the Authority, was deemed to raise a factual issue requiring a plenary trial thereof. The trial on that limited issue was subsequently conducted before Judge Trautwein, sitting without a jury.

For completeness, we note also that defendants sought leave from Judge Pashman to file a cross-claim against the State, which had been added as a party by reason of the Authority’s earlier amendments of its complaint. Defendants sought by its cross-claim a judgment that they held title to all 275 acres of the meadowlands surrounding their parcels and that the State had no title thereto. In an oral opinion on February 19, 1968 the court allowed the filing of the cross-claim, but ruled that it would not be consolidated with the plenary hearing on the issue of arbitrariness and was not to be tried until after the determination of that matter.

In another pretrial motion defendants sought to compel the Turnpike commissioners to appear for oral depositions. Judge Pashman heard this application on March 1, 1968 and ruled that the commissioners were immune from depositions, “barring allegations of improper behavior,” which were not present in the case. It was determined that, absent such allegations, “the mental processes of fact-finders are beyond the permissible limits of our discovery procedures.”

I

We shall first consider defendants’ appeal insofar as it challenges the propriety of the interlocutory orders made by Judge Pashman.

A

As to the four paragraphs in the order of April 5, 1968 striking certain defenses, denying injunctive relief and burdening plaintiff Authority with the risk of proceeding with construction after the date of the plenary hearing, we find no valid basis for a reversal of that order.

Defendants argue in their appeal only as to two of the defenses stricken, namely, (1) their claim that the proposed taking violates 33 U. S. C. A. § 401 et seq., and (2) the Turnpike Authority failed to comply with the requirements of N. J. S. A. 40:55—1.13. We shall, therefore, deem abandoned any claim of error in the striking of the other defenses.

(1) AS TO 33 U. 8. G. A. § 401

This statutory reference is to the Federal Harbors and Rivers Act. It provides in pertinent part:

“It shall not be lawful to construct or commence the construction of any bridge * * * over or in any * * * canal, navigable river, or other navigable water of the United States until the consent of Congress to the building of such structures shall have been obtained and until plans for the same shall have been submitted to and approved by the Chief of Engineers and by the Secretary of the Army: Provided, that such structures may be built under the authority of the legislature of a state across rivers and other waterways the navigable portions of which lie within the limits of a single State, provided the location and plans are submitted to and approved by the Chief of Engineers and by the Secretary of the Army before construction is commenced * *

The Turnpike Authority’s plans for the highway spur provided for the construction of two bridges across Berry’s Creek Canal. Application for the federal permit had been filed with the Corps of Engineers on July 27, 1966, long before filing of these proceedings, but decision on the application had long been delayed. Therein, the Authority sought approval of construction of the two bridges with a fixed vertical clearance of 25 feet. At the time of the hearings before Judge Pashman, federal approval had not yet been obtained. But, at the same time, the Authority had not yet constructed or commenced the construction of the bridges. The contracts then being performed for it involved only the excavation of muck and the subsequent backfill of materials to provide a foundation for the roadway. A public hearing on its application for construction of the bridges was scheduled by the federal authority for January 18, 1968. No contracts for the actual construction of the proposed bridges would be awarded until the grant of the federal permit. The Authority stated that it intended to abide by the vertical clearance requirements prescribed by the federal authorities.

Judge Pashman correctly ruled that, since no construction of an unapproved bridge was then under way, defendants could not prevail on this contention. Moreover, even if the Authority had violated § 401, it would not mandate a dismissal of the condemnation actions.

The federal approval issue has meanwhile become moot. The Turnpike Authority has, in the interim, obtained federal approval for the bridges, subject to the conditions expressed therein. A copy of the bridge permit, dated November 21, 1968, has been made a part of the record before us. The drawings annexed to the permit evidence that the Coast Guard set the vertical clearance at 35 feet, rather than the 25 feet proposed by the Turnpike Authority. The Authority agrees to comply fully with this standard.

Sisselman is now challenging the approval in the federal court. However, the federal administrative determination is binding upon the parties until it is reversed, and an appeal does not suspend its effect. Cf. Emery v. United States, 27 F. 2d 992 (E. D. Pa. 1928); Johnson & Johnson v. Herold, 161 F. 593 (C. C. D. N. J. 1907); United States v. United, Airlines, Inc., 216 F. Supp. 709, 722-724 (D. C. E. D. Wash. 1962), certiorari dismissed 379 U. S. 951, 85 S. Ct. 452, 13 L. Ed. 2d 549 (1964).

(*) TO N. J. S. A. JO:55-1.18

N. J. S. A. 40:55-l.l el seq., constitutes what is known as the “Municipal Planning Act (1953).” Section 1.13 thereof provides in part that a governing body or other public agency, before taking action necessitating the expenditure of any pubiic funds for any project, shall refer the project to the planning board for review and recommendation. The statute makes the requirement applicable “to action by a housing, parking, highway or other authority, redevelopment agency, school board, or other similiar public agency, Federal, State, county or municipal.”

Defendants argue that the Turnpike Authority failed to refer its project — the proposed turnpike spur — to the East Rutherford Planning Board for review and recommendation. From this premise, it maintains that the Turnpike’s proceedings are fatally defective.

Judge Pashman correctly ruled that this provision in the Municipal Planning Act did not apply once the Legislature has authorized a project such as the Turnpike extension. Such authorization was granted by N. J. S. A. 27:23-23.2 in 1966. The alignment determined by the Turnpike Authority pursuant to that legislative authorization did not require the approval of local planning boards. To hold otherwise would delay, disrupt, fragmentize and possibly defeat completion of this necessary public project, an extensive project passing through several municipalities. That the Turnpike Authority and similar agencies are immune from local zoning and planning regulations has been indicated by such cases as Bloomfield v. New Jersey Highway Authority, 18 N.J. 237, 239-240 (1955); Newark v. New Jersey Turnpike Authority, 7 N. J. 377, 387 (1951); Aviation Services, Inc. v. Board of Adjustment, Hanover Township, 20 N. J. 275 (1956). The rationale of these cases is that legislatively created agencies, authorized by the superior governmental authority of the State, may not be subjected to rules and regulations of local governing boards and agencies, in the absence of clear language subjecting the state-created agency to the jurisdiction of local boards.

The language in N. J. S. A. 40:55-1.13 does not mandate the Turnpike’s need to get local approval from the planning board of every municipality through which its extended highway runs. On the contrary, the statute authorizing the Turnpike Authority to perform its designed functions provides :

“This act, being necessary for the welfare of the State and its inhabitants, shall be liberally construed to effect the purposes thereof.” N. J. S. A. 27:28-19.

And further, N. J. S. A. 27:23-21 provides:

“All other general or special laws, or parts thereof, inconsistent herewith are hereby declared to be inapplicable to the provisions of this act.”

These provisions reinforce Judge Pashman’s conclusion that no local consultation or approval of legislatively authorized projects is required.

Accordingly, injunctive relief and dismissal of the condemnation proceedings were properly denied.

B

We now turn our attention to Judge Pashman’s order of April 5, 1968, insofar as it denied defendants’ motion to take the oral depositions of the three Turnpike Authority commissioners. That denial was based, as noted above, on the premise that they were immune from inquiry into the mental processes by which they made their decisions, in the absence of allegations of improper behavior on their part.

We agree with that determination on the basis of the record herein. United States v. Morgan, 313 U. S. 409, 61 S. Ct. 999, 85 L. Ed. 1429 (1941), expresses the generally accepted rule that the head or heads of an administrative agency may not be examined to probe the mental processes surrounding his or their promulgation of a regulation. Administrative determinations have a quality resembling that of a judicial proceeding. See, too, Braniff Airways Incorporated v. C. A. B., 126 U. S. App. D. C. 399, 379 F. 2d 453, 460 (D. C. C. A. 1967).

Moreover, all the facts material to the determination of legality or arbitrariness of the actions of the Authority have been spread upon this lengthy record, and there is no showing that interrogation of the commissioners personally is necessary to enable the correct determination of this litigation.

II

The next issue to be resolved is whether Judge Trautwein’s findings of fact and conclusions of law were supported by the evidence and in conformity with applicable legal principles.

The trial was limited to the claim made by defendants that the Turnpike Authority’s alignment in the construction of the highway spur was arbitrary, oppressive and done in bad faith. Judge Trautwein concluded that defendants had failed to prove such allegations. Accordingly, judgment was entered in favor of the Authority.

We consider first defendants’ claim that they were entitled to the standards of arbitrariness set forth in Texas Eastern Transmission Corp. v. Wildlife Preserves, Inc., 48 N. J. 261 (1966). In that case, a gas company brought proceedings under the authority of the Natural Gas Act to condemn land for a right of way over property owned by Wildlife Preserves, Inc., a private nonprofit eleemosynary corporation engaged in acquisition of lands and their devotion to conservation and preservation of wildlife. Contention was made that there was a sound alternate route for the pipeline. The Supreme Court held that the wildlife corporation was entitled to have a plenary trial of its claim that a satisfactory alternate route was available. It ruled that the gas company could condemn lands devoted to another public use, if the taker’s use is necessary to accomplish a public purpose, and that purpose is paramount, either by express language of the statute or by necessary implipation therefrom. It noted that the corporation’s devotion of its lands for wildlife purposes represented a “unique” case deserving of a more potent claim to judicial protection, involving more than a dollar valuation.

In summary, Justice Francis, on the court’s behalf, noted that “the quantum of proof required of this defendant to show arbitrariness against it should not be as substantial as that to be assumed by the ordinary property owner who devotes Ms land to conventional uses.” 48 N. J., at p. 273. However, “the ultimate burden of proving arbitrariness in the choice oí route will be on Wildlife Preserves.” Id., at p. 275. But if it introduced reasonable proof of (1) serious damage by reason of the path chosen, and (2) an apparently reasonably available alternate route, which would avoid the serious damage referred to, the burden of going forward with the evidence would shift to plaintiff. Id., at p. 275.

Defendants argue that the two parcels in question are unique and specially adaptable for a marine terminal, which would serve a needed public use and, as such, are entitled to the standards of arbitrariness set forth in the Wildlife Preserves case, supra.

The Turnpike Authority’s position is that the Wildlife case is distinguishable from the instant situation. In the former, the wildlife preserve was an established fact, in actual existence prior to the gas company’s seeking a right of way over the area for the laying of its pipeline. The wildlife preservation involved a public service already being rendered. Here, the marine terminal is not in existence for a public irse, but merely something in the contemplation of individuals, who have been engaged in land speculation, the actual development of an industrial park and are contemplating a plan for future development of a marine terminal, as to which there are many contingencies aside from the Turnpike project.

As to the claim of arbitrariness, the Turnpike Authority points out that the proposed roadway route follows a pipeline which has already established the corridor; the Authority’s established alignment will result in a reduction in the cost of land acquisitions and construction; it will serve the welfare and safety of the travelling public by selection of the shortest route, and it will provide for the least abrupt curve. A great volume of motorists admittedly use the Turnpike daily. Finally, the Authority allegedly selected this route close to the river bank to provide for natural diking, a factor conducive to the reclamation of meadow lands, a matter presently of deep concern to the State in promoting the public welfare.

The findings by the trial judge justify his conclusion that the rule in the Wildlife case is not applicable here because defendants have not yet with sufficient definiteness undertaken and devoted their property to a marine terminal, as contrasted with the full devotion to public use in Wildlife. Rather, the totality of the evidence on this issue justifies a holding that, as to the burden of proof and of going forward with the evidence, defendants are in the same category of other property owners, as defined in Newark v. New Jersey Turnpike Authority, 7 N. J. 377 (1951).

Defendants, although they now press for a 50-foot clearance of Berry’s Creek Canal by the proposed bridge span and at a point 1100 feet west of the proposed location, nevertheless at a meeting with the consulting engineers of the Turnpike Authority on May 11, 1966 suggested a lower span across the canal than the 25-foot vertical clearing in the Authority’s application, and at the precise location now proposed by the Turnpike Authority. These proposals would have been inconsistent with their later and present claim of developing the area for a marine terminal. As noted above, the federal authorities, whose judgment controls, fixed permissible vertical clearance at 35-feet.

We need not recite herein the detailed factual findings by the trial judge. Suffice it to say, they are supported by adequate, substantial and credible evidence. We deem them binding upon us. Abeles v. Adams Engineering Co., Inc., 35 N. J. 411, 424 (1961). Those findings support the conclusion that the Turnpike Authority was not arbitrary, oppressive or unreasonable, as claimed by defendants. Eor the reasons stated above, as well as for those set forth in Judge Trautwein’s comprehensive opinion, we agree with his judgment. Defendants’ dream, “curiously contemporary with the date when the present route was selected by the Turnpike,” as Judge Trautwein observed, is subordinate to the paramount and actively progressing public user for needed highway purposes.

Ill

Defendants’ final point is that the Turnpike Authority’s continuing its construction pending litigation embarrassed the judicial process by creating its own equities at the expense of defendants.

In the first place, the point is now moot in view of our determination on the merits. In any event, we do not agree with the argument made. The line had been established since 1965, was made public in a prospectus in 1966, at which time underwriters and others became interested in the financing, and on the strength of the planned alignment the public purchased 175 million dollars, or more, of bonds. The work has steadily progressed. To halt operations pending this protracted litigation would entail the loss of millions of dollars, and existing contracts would require renegotiation at ever-increasing costs. Delay while awaiting the end result of the litigation would disserve the public interest. Plaintiff’s calculated risk in going forward with the work, absent any legal restraint, was not without justification in the public interest.

The orders and judgment under review are in all respects affirmed.


author: Pee Cueiam.

text:
    THE STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. JAMES WILLIAMS, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued November 12, 1968—
    Decided July 14, 1969.

      Before Judges Gaulkin, Collesteb and Labbecque.

      Mrs. Miriam N. Span, Assistant Deputy Public Defender, argued the cause for appellant (Mr. Stanley G. Van Ness, Public Defender, attorney).

      Mr. Harold N. Springstead, Assistant Prosecutor, argued the cause for respondent (Mr. Guy W. Galissi, Bergen County Prosecutor, attorney).
   Pee Cueiam.

Defendant was convicted of murder, rape and atrocious assault and battery and he appeals.

Defendant contended that the indictments against him should have been dismissed because of the systematic exclusion of Negroes from the grand jury of Bergen County which indicted him. His brief stated that his

“* * * challenge to the array of the jury panel was heard and denied by Judge Kole. Judge Kole stated * * * that the same issue was * * * before Judge Botter in State v. Rochester and that a motion for reconsideration could be made based on the decision in that case. Judge Botter denied the motion in State v. Rochester [105 N. J. Super. 529 (Law Div. 1967)1 and the New Jersey Supreme Court * * * granted [Rochester] leave to appeal (leave granted 4/30/68). The same Grand Jury panel indicted the defendant, James Williams, that indicted Herman Rochester. The defendant, therefore, agrees to be bound by the Supreme Court’s decision in State v. Rochester, as to whether Negroes have been systematically excluded from the Bergen County Grand Jury.”

Consequently, we awaited the decision of the Supreme Court in Rochester. On May 19, 1969 the Supreme Court affirmed Judge Botter’s decision, State v. Rochester, 54 N. J. 85 (1969). Accordingly, we reject this ground of appeal.

Defendant argues that his motion to suppress certain evidence should have been granted. We disagree, for the reasons stated by Judge Kole in his opinion disposing of the motion to suppress, reported in 97 N. J. Super. 573 (Law Div. 1967).

Finally, defendant argues that “The search and interrogation of the defendant was a critical stage of the proceedings and the defendant was therefore entitled to have an attorney present under the Sixth Amendment * * Substantially the same contention was rejected by Judge Kole in said opinion, and we agree with his reasons for rejecting it. (97 N. J. Super., at pp. 600-603).

Affirmed.