author: Carton, J. A. D.

text:
    IN THE MATTER OF THE TRANSFER INHERITANCE TAX ASSESSMENT IN THE ESTATE OF MARIA MC ILVAINE GILLMORE, DECEASED. CHEMICAL BANK NEW YORK TRUST COMPANY, ET AL., EXECUTORS, ETC., APPELLANTS, v. WILLIAM KINGSLEY, ACTING DIRECTOR, ETC., RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued April 8, 1968 —
    Decided May 22, 1968.

      Before Judges Golbmann, Kilkenny and Caeton.

      Mr. Vincent D. Manaban, III argued the cause for appellants (Messrs. Herrigel, Bolán & Herrigel, attorneys).

      Mr. Jeffrey B. Lowe, 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

Carton, J. A. D.

Challenged on this appeal is a determination by the Transfer Inheritance Tax Bureau that the estate of Maria Mcllvaine Gillmore, who died at a nursing home in Summit, New Jersey, on January 12, 1965 was subject to a transfer inheritance tax. The Bureau defends the imposition of the tax on the basis that decedent was a resident of this State within the meaning of the Transfer Inheritance Tax Act (N. J. S. A. 54:34-1 et seq.).

Appellants are her brother, Prancis S. Mcllvaine, and Chemical Bank New York Trust Company, executors of decedent’s will which has been admitted to probate in New York. Mcllvaine and his family are the principal beneficiaries under that will. They contend that Mrs. Gillmore was incompetent by reason of senility when she departed from New York in 1963 and never surrendered or lost her domicile in that state so as to subject her estate to taxation by New Jersey. In this connection we note that an estate tax of $17,000 has been paid by appellants to the State of New York.

The factual genesis of the present controversy is quite clear. Early in April 1963 Mrs. Gillmore’s practical nurse, Mae Seharf, telephoned Prancis Mcllvaine from decedent’s apartment at 124 East 84th Street, New York City, to advise that she could not adequately take care of her. In response to the telephone call Prancis drove to New York on April 14, 1963 and took his sister to his home at Summit, New Jersey. Prancis was her closest living relative and her sole next of kin. On April 30 decedent was placed in the Evergreen Nursing and Convalescent Home in Summit where she remained until her death in 1905. Shortly after taking his sister to Summit, Francis arranged, during the summer of 1963, for the removal of the furniture from her New York apartment and the payment of the rent for the lease expiring on September 30.

In July 1963 Francis filed a verified complaint in the Superior Court, Chancery Division (Union County), seeking to have his sister adjudged a mental incompetent and requesting the grant of letters of guardianship to him. In that complaint he stated that he was domiciled and had his residence at 264 Oak Eidge Avenue, Summit. After averring that he was the brother of decedent, whom he described as “domiciled and who has had her address at 264 Oak Eidge Avenue, Summit” and “is presently residing at the Evergreen Nursing Home, Evergreen Eoad, Summit,” the complaint recited that decedent had been a widow since 1912; there were no children of her marriage; her mother and father were dead; she had no brothers or sisters other than plaintiff, and she owned no real property but had a checking account in the Chemical Bank New York Trust Company with an approximate balance of $1300, as well as a custodian account in the same bank with an approximate market value of $350,000.

At a hearing in the incompetency proceeding held on August 20, 1963 plaintiff’s medical witness expressed the opinion that decedent was mentally incompetent by reason of cerebral arteriosclerosis and/or senility; she was incapable of taking care of herself or her property; her prognosis was poor and her condition incurable. Francis testified that he lived in Summit and further stated that she resided with him in Summit prior to her entering the nursing home. Later in the hearing the following transpired:

“BY THE COURT:
Q. Mr. Macllvaine [sie], how long was your sister living with you in Summit? A. Two or three wreeks.
MR. DRUMMOND [Francis Mcllvaine’s attorney]: She had had an apartment, your Honor. She gave it up because she was losing all — with the loss of memory she moved in with her brother in Summit and then the condition got worse and then she was placed into the nursing home.
THE COURT: Only been here two or three weeks?
MR. DRUMMOND: Tes, sir.
THE COURT: She has her domicile in New Jersey?
MR. DRUMMOND: Tes, sir.
THE COURT: All right.”

An order was entered in the Chancery Division on August 26, 1963 adjudging decedent incompetent and appointing her brother guardian of her person and property. He duly qualified. Pursuant to an order of the court, the Trust Company of Morris County accepted for deposit the securities in the New York custodian account.

On the basis of the foregoing the Transfer Inheritance Tax Bureau determined that decedent was a domiciliary of New Jersey. A payment of $62,562 on account of any tax due was received on January 6, 1966. Apparently prompted by appellant’s protest as to the finding that decedent was a New Jersey domiciliary, the Bureau took the testimony of Francis Mcllvaine and his wife Irene on April 27, 1966 on this subject. The testimony at that hearing will be commented on hereafter.

On August 31, 1966 the Bureau sent appellants a final statement of the amount of tax found due, along with a detailed statement outlining the basis of the Bureau’s determination. This appeal followed.

The Bureau supports the validity of the assessment on two theories: (1) an inheritance tax can be assessed against the transfer of decedent’s intangible assets as a resident of this State, although not domiciled here, and (2) such a tax can be assessed because decedent was actually domiciled here.

The argument that residence alone will support the tax is based upon the provision of N. J. S. A. 54:34-1, which authorizes the imposition of a tax upon the transfer of real or intangible personal property wherever situated where the transfer is from a “resident of this State dying seized or possessed thereof.”

An inheritance tax, like other death duties, rests “upon the principle that death is the ‘generating source’ from which the authority to impose such taxes takes its being.” 28 Am. Jur., Inheritance, Estate & Gift Taxes, § 9 (1940). Such a tax is imposed under the power of a state to make reasonable regulations for the devolution of property upon the death of the owner. See Neilson v. Russell, 76 N. J. L. 655, 659 (E. & A. 1908).

The argument proceeds that any number of states may constitutionally impose an inheritance tax upon the same intangible property. Thus, two or more states may assess death taxes on a decedent’s intangibles upon a judicial determination that the decedent was domiciled therein. State of Texas v. State of Florida, 306 U. S. 398, 410, 59 S. Ct. 563, 83 L. Ed. 817, 827 (1939). See Annotation, 121 A. L. R. 1200 (1939), where the cases are collected.

Proceeding from this premise, the Bureau advances the proposition that although domicile is a valid basis for the imposition of such a tax, it does not provide the exclusive basis for taxation and that residence alone may provide a sufficient platform from which the State may project this sovereign power. The theory is that when a decedent’s person or property comes within the reach of a state through residence there and the state has afforded protection and extended benefits to that person, it has the constitutional power to tax. The Bureau asserts that the State may thus demonstrate the practical fact of its power as a sovereign. See State Tax Commission of Utah v. Aldrich, 316 U. S. 174, 178-179, 62 S. Ct. 1008, 86 L. Ed. 1358, 1369 (1941).

This concept finds cogent expression in the following excerpt from the court’s opinion in Curry v. McCanless, 307 U. S. 357, 59 S. Ct. 900, 83 L. Ed. 1339 (1939) :

“The power to tax ‘is an incident of sovereignty, and is co-extensive with that to which it. is an incident. All subjects over which the sovereign power of a State extends, are objects of taxation; but those over which it does not extend, are, upon the soundest principles, exempt from taxation.’ * * * From the beginning of our constitutional system control over the person at the place of his domicile and his duty there, common to all citizens, to contribute to the support of government have been deemed to afford an adequate constitutional basis for imposing on him a tax on the use and enjoyment of rights in intangibles measured by their value. Until this moment that jurisdiction has not been thought to depend on any factor other than the domicile of the owner within the taxing state, or to compel the attribution to intangibles of a physical presence within its territory, as though they were chattels, in order to support the tax. * * *
* * * But when the taxpayer extends his activities with respect to his intangibles, so as to avail himself of the protection and benefit of the laws of another state, in such a way as to bring his person or property within the reach of the tax gatherer there, the reason for a single place of taxation no longer obtains, and the rule is not even a workable substitute for the reasons which may exist in any particular case to support the constitutional power of each state concerned to tax. Whether we regard the right of a state to tax as founded on power over the object taxed, as declared by Chief Justice Marshall in McCulloch v. State of Maryland, 4 Wheat. 316, 4 L. Ed. 579, supra, through dominion over tangibles or over persons whose relationships are the source of intangible rights, or on the benefit and protection conferred by the taxing sovereignty, or both, it is undeniable that the state of domicile is not deprived, by the taxpayer’s activities elsewhere, of its constitutional jurisdiction to tax, and consequently that there are many circumstances in which more than one state may have jurisdiction to impose a tax and measure it by some or all of the taxpayer’s intangibles.” (at pp. 366-368, 59 S. Ct., at p. 905)

The correctness of the Bureau’s thesis that residence alone may provide a valid statutory basis for the imposition of an inheritance tax depends on whether the Legislature intended that result in adopting the Transfer Inheritance Tax Law. The specific inquiry is whether the word "residence” ■as used in the statute should be read literally or should be •equated with the term "domicile.” See State v. Benny, 20 N. J. 238, 252 (1955); State v. Garford Trucking, Inc., 4 N. J. 346, 353 (1950).

The comment in the Restatement, Conflict of Laws, § 9 •(1934), points up this issue:

“The word residence is often but not always used in the sense of •domicile, and its meaning in a legal phrase must be determined in •each case. It is sometimes used as equivalent to domicile; sometimes it has a broader meaning; and sometimes a narrower meaning. It may mean something more than domicile; the domicile, namely at which a person is resident. On the other hand, it may mean something less than domicile; a dwelling place adopted for the time being, bnt not necessarily with such an intention of making a home and as to create a domicile. The phrase ‘legal residence’ is sometimes used as the equivalent of domicile.” (Comment (e), at p. 20)

We look first to the meaning that the Transfer Inheritance Tax Burean has attributed to this term in its administration of the statute. We find that the Bureau has long and consistently interpreted “residence” to mean “domicile.” See Fowler v. Margetts, 7 N. J. Super. 297 (App. Div. 1950). Indeed, in the present case the Bureau’s covering letter of August 31, 1965 declares that the enclosed statement of tax due shows “the basis upon which the Bureau determines that the decedent was a domiciliary of the State of New Jersey.”

Throughout the present tax proceedings and in the Bureau’s forms appear references to “domicile,” inescapably pointing to the conclusion that the determination of domicile in New Jersey was assumed to be the basis for the imposition of the tax. This long continued practical interpretation given by the agency to the statute which it was required to administer is entitled to considerable weight in determining the legislative intent. See, e. g., Sutherland, Statutory Construction (3d ed. 1943), § 5103.

Our Transfer Inheritance Tax Act, when first enacted in 1909 (c. 228), contained the word “resident.” It has been amended many times, including the extensive revisions of L. 1962, c. 15 and L. 1962, c. 61. Yet the Legislature has never changed the word or attempted to define it to mean other than domicile — this in the face of the -construction adopted and consistently applied by the Bureau and the courts. It is particularly significant that in 1944 the Legislature, apparently concerned by the possible inequity of multiple inheritance taxes sanctioned in Aldrich, supra, authorized the State Tax Commissioner to compromise estate and inheritance taxes with other jurisdictions where “investigation discloses a reasonable donbt regarding domicile.” N. J. S. A. 54:38A-1. Where the Legislature amends a statute after it has been administratively construed, leaving intact that language, it may be inferred that the administrative interpretation has its approval. See Walsh v. Department of Civil Service, 32 N. J. Super. 39, 48 (App. Div. 1954); 2 Sutherland, Statutory Construction (3d ed. 1943), § 5109.

Domicile was basic to the decisions, not only in Fowler but also in Cromwell v. Neeld, 15 N. J. Super. 296 (App. Div. 1951), and In re Dorrance, 115 N. J. Eq. 268 (Prerog. 1934), and 116 N. J. Eq. 204 (Prerog. 1934), affirmed 116 N. J. L. 362 (E. & A. 1936), certiorari denied 298 U. S. 678, 56 S. Ct. 949, 80 L. Ed. 1399 (1936). This interpretation of residence as being the equivalent of domicile for purposes of death taxes seems to be in accord with the generally accepted view. See Restatement, supra, § 9.

We must therefore consider whether decedent was “domiciled” in this State within the intendment of the Transfer Inheritance Tax Act. Domicile is defined in the Restatement, Conflict of Laws, § 9 (1934), as the “place with which a person has a settled connection for certain legal purposes, either because his home is there, or because the place is assigned to him by law.” As the comment to that section states:

“Domicile is not the only place with which a person has a connection for legal purposes. Domicile differs from such other places both in the nature of the connection and in the legal purposes for which such connection is important. Thus a person may be a ‘resident’ or ‘inhabitant’ or a ‘citizen’ of a place without being domiciled therein, although such ‘residence,’ ‘inhabitance,’ or ‘citizenship’ may be significant for some legal purposes. Many legal questions depend upon domicile irrespective of residence, inhabitancy or citizenship.” (Comment (a), at p. 17)

See also Kurilla v. Roth, 132 N. J. L. 213, 215 (Sup. Ct. 1944).

In addition to the generally accepted principle that the concept of “domicile” may have different content and shades of meaning depending upon the context in which it is used, certain other basic principles are generally agreed upon. Every person has a domicile at all times, and no person has more than one domicile at any one time. Restatement, supra, § 11. A domicile once established continues until it is superseded by a new one. Domicile may be acquired in one of three ways: (1) through birth or place of origin; (2) through choice by a person legally capable of choosing his domicile, and (3) through operation of law in the case of a person who lacks capacity to acquire a new domicile by choice. Id., § 26.

In the present case it is evident that decedent was so advanced in senility at the time she left her New York home to live in New Jersey that she did not possess the requisite mental capacity to make a new domicile by choice. Such glimmerings of rationality as she was capable of expressing would suggest that she was not desirous of changing her place of domicile or residence. We observe, however, that Erancis Mellvaine did discuss with Ms sister the matter of coming to live at Ms home. He testified : “She agreed to it temporarily. * * * She said she would stay for a while, but not long. The while was indefinite.”

Since decedent clearly lacked capacity to acquire a new domicile in this State through her own volition, the inquiry must be made whether she did so by operation of law. Had she at the time of her death, by reason of the circumstances arising out of her incapacity and residence with her brother, acquired such a settled connection with this State that she became domiciled here within the meaning of the inheritance tax statute ? We hold that she did.

Mrs. Gillmore was 92 years of age when she left her New York apartment for the last time in 1963 to come to her brother’s home in Summit. Except for that brother and his family, she had no other surviving relatives. She owned no real property in New York or elsewhere. Her personal property, aside from the furniture in her apartment, her clothing and personal effects, consisted of a checking account in Chemical Bank New York Trust Company and various securities in a custodian account in that bank. She had lived alone in her New York apartment for over 40 years and had never owned or rented a residence in any other state.

From 1921 to 1962 decedent filed or had filed on her behalf a New York State income tax return as a resident of New York. Fo New York return was filed on her behalf for either the year 1963 or 1964. She also filed a federal income tax return in New York — at least from 1922 to 1962. The federal income tax return filed for the taxable year 1963 showed her address as that of her brother’s house in New Jersey. The federal returns for the year 1962 and prior thereto and the state returns filed in New York listed her address as the Chemical Bank New York Trust Company, by whom the returns were prepared.

There is evidence that earlier in her life she had been active in community affairs centered in New York, but her ties with events and people in that city naturally loosened and diminished towards the end of her life because of advanced age and deteriorating mental and physical faculties. It appeared that she traveled a great deal in the later years of her life, returning after each trip, however, to the apartment which she still maintained. The record shows that she voted in New York from 1922 to 1962 notwithstanding that her physician had noted in 1961 such a definite change in her mental and physical condition that she had become totally unable to manage her affairs. He declared that her condition became strongly progressive about six months prior to April 1963; her brother had expressed a wish to take her to his home in New Jersey, and he, as her physician, had urged that this be done. She was then unable to walk without help'and her vision was seriously impaired. According to him, however, she knew that she could not take care of herself.

It was therefore perfectly natural and proper that she should leave her New York residence, however, reluctantly, and come to live with her only brother and sole next of kin. She had no one else to care for her and was unable to care for herself. She had been dependent upon him in recent years to help hex in her financial matters. Inevitably, she now became completely dependent upon him.

Considering Mrs. Gillmore’s age and her condition and the circumstances which existed when she came to New Jersey, it must be evident that although she may have had the illusion she was making a visit, she was leaving New York permanently. Any prospect of returning could only be a figment of the imagination. The “days of her years” were far beyond “three score and ten.” Her gray and apathetic condition and her advanced age forbade the cherishing of a “long hope.”

The few remaining ties that decedent had with her New York home were rapidly and completely severed. The hope that she could live out her remaining years with her brother at his Summit home quickly proved to be unrealistic. Mcllvaine and his wife were soon convinced that they were unable to provide the care necessitated by his sister’s condition. Consequently, he made arrangements to place her in the Evergreen Nursing Home in Summit. At some time, it is not clear when, he obtained a power of attorney by which he was able to draw on her account in the New York bank in order to pay her expenses.

In August 1963 he made application to the Chancery Division of the Superior Court in Union County for an adjudication that his sister was mentally incompetent, and for the appointment of himself as guardian of her person and property. We deem it significant that the complaint in that proceeding recited that Mcllvaine was domiciled and had his residence at 264 Oak Ridge Avenue, Summit, and that his sister “is domiciled and * * * has had her address at 264 Oak Eidge Avenue, Summit, New Jersey and is presently residing at the Evergreens Nursing Home, Evergreen Road, Summit, New Jersey.” We note, further, that in his affidavit annexed to the complaint Mcllvaine swore on July 24, 1963 that the matters stated in the complaint “are true to my personal knowledge.”

The significance of these representations becomes readily apparent when it is borne in mind that decedent’s residence and domicile in this State were the foundation upon which rested the Chancery Division’s jurisdiction to make the determination as to her ineompetency and to appoint her brother as guardian of her person and property. See In re Devausney, 52 N. J. Eq. 502 (Ch. 1894); R. R. 4:116-2(a). Their importance is further underscored by the fact that they were manifestly included in the complaint in compliance with the specific mandate of R. R. 4:102-1(b). That rule requires the complaint to state, among other things, the name, age, domicile and address of the alleged incompetent.

That decedent’s domicile in this State was regarded as a crucial factual issue as well as a technical legal requirement clearly appears from the transcript of the hearing at the incompetency proceeding. After Mcllvaine gave testimony that decedent was residing with him at Summit, the trial judge interrogated him as to the length of her residence with him there and was twice assured at this point (and in Mc-Ilvaine’s presence) by his New Jersey attorney that “her domicile according to the plaintiff is Summit.”

On the basis of this hearing the court on August 26, 1968 appointed Mcllvaine as guardian of Mrs. Gillmore’s person and property. Pursuant to the authority and the duty thus cast upon him to provide for his ward’s person and property, he duly qualified as guardian. His attorney promptly obtained an order for the transfer of her securities in the New York bank and their deposit with the Trust Company of Morris County at Morristown. That order provided that the securities so deposited in the New Jersey bank should not be withdrawn except by the authority of a special order of the New Jersey court.

Mcllvaine opened a checking account in the latter institution and continued to maintain his ward at the Evergreen Nnrsing Home nntil her death in 1965. As her guardian he executed and signed her 1963 federal income tax return in which he described his home address as “Francis McIlvaine, Guardian, 264 Oak Ridge Ave., Summit, N. J.” He declared also in that return that her address for the 1963 return was different than in 1962, which previous address he reported was “c/o Chem. Bank N. Y. Trust Co., N. Y.” In the summer of 1963 he also arranged for the removal of decedent’s furniture to his own home. He paid the rent for the New York apartment, the lease for which expired in September of that year. Decedent had not renewed it in the spring of 1963 for the following year. Noteworthy also is the fact that neither he nor the individual at the New York bank who had prepared and filed the federal and New York income tax returns for years previous to 1963 did so for that year.

We are satisfied on the basis of the unique circumstances present in this case that decedent had acquired a New Jersey domicile by operation of law at the time of her death. Eor all practical purposes, her permanent residence was here. Certainly she had no residence elsewhere. Long before her death all her remaining ties with her former home had been cut. It can fairly be said that she came to spend the rest of her days and remained “with as much permanency as life affords.” See First Trust and Deposit Company v. Goodrich, 3 N. Y. 2d 410, 165 N. Y. S. 2d 510, 515, 144 N. E. 2d 396, 399 (Ct. App. 1957).

At her death this State clearly had the most substantial interest in her welfare. New Jersey had extended the umbrella of its protection over her for a considerable period prior to that time. Acting in good faith and in her interest, her brother, as her sole surviving next of kin, had invoked the aid of the Chancery Division for the appointment of himself as the guardian of her person and property. Under that court’s jurisdiction he continued to manage and control her affairs for the remainder of her life. Having been lawfully invested with authority over her person and property, it would seem entirely appropriate that his actions should also control and determine her domicile.

We are not impressed with his protestations in this proceeding that it was never intended that she acquire a domicile here. His actions at a time when ho had no motive to misstate the facts or his own intention, as well as the actions of all of those who were then concerned with her welfare, bespeak an intention that her domicile should follow his. In this connection, we note that the attorney who conducted the incompetency proceeding was not called as a witness to explain the basis upon which he and his client made the representations and recitals as to decedent’s residence and domicile. Nor was any representative of either the New York or New Jersey banks asked to explain why the various tax returns were prepared and filed as they were.

Consequently, we conclude that decedent was domiciled in this State at the time of her death within the meaning of the Transfer Inheritance Tax Act, and that the tax assessed by the Bureau was properly imposed.

We perceive no necessity for deciding the broader issue of whether the appointment of a guardian for decedent may — without more — have had the legal effect of determining her domicile, not only for purpose of inheritance taxes but also for all other purposes. See Restatement, supra, § 40, where it is said:

“If a guardian of the person is appointed for one who is mentally deficient or of unsound mind and who is incapable of acquiring a domicile of choice, the ward acquires a domicile with the guardian if he lives with him within the state of the latter’s appointment.” (Comment (e), at p. 64)

And see § 37 where the same rule of domicile is said to be applicable in the case of a court-appointed guardian for a child.

Notwithstanding the categorical character of the Restatement Comment, it appears that a divergence of opinion has developed among the few jurisdictions that have had reason to consider the exact effect on the domicile of the ward of a court appointment of a guardian. The increasing mobility of our society, accompanied by the tremendous increase in the number of the aging and the problems arising out of their care, paralleled by a great increase in the extent to which intangibles now constitute wealth, constitute developments in our society which seem likely to present many new problems not readily resolved by traditional conflicts of law rules conceived in a less transient society. See Morrill, “Multistate Estates,” 103 Trusts and Estates 734 (1964). See also dissenting opinion of Mr. Justice Frankfurter in State of Texas v. State of Florida, supra, 306 U. S., at p. 429, 59 S. Ct. 563, 83 L. Ed., at p. 837. Consequently, judicial restraint dictates that we limit our decision to the situation at hand.

Nor do we deem it necessary to consider the additional ground for affirmance advanced by the Bureau, that appellants are precluded from attacking the Bureau’s determination as to domicile by reason of the Chancery Division judgment in the incompeteney proceeding. The theory here is that since Mcllvaine’s appointment as guardian was procured on the basis of his representations as to domicile, the doctrine of equitable estoppel should preclude him and his ward’s estate from asserting a contrary position now. Cf. In re Dorrance, supra, 115 N. J. Eq., at p. 271. While this argument has much force, particularly since McIlvaine, as one of the executors of decedent’s will, is a party to this action and since he and his family are the principal beneficiaries of her estate, it seems preferable to us that the issue of domicile be determined in this proceeding anew and on the merits.

Affirmed.

       See Annotation, “Change of state or national domicile of mental incompetent,” 96 A. L. R. 2d 1239 (1962). See also Graveson, “Capacity To Acquire a Domicile,” 3 Int'l L. Q. 149 (1950) ; Note “Domicile as Affected by Compulsion,” 13 U. Pitt. L. Rev. 697 (1952) ; Note, 5 U. C. L. A. L. Rev. 312 (1958) ; Comment, 26 U. Cin. L. Rev. 629 (1957).


source: Caselaw Access Project

author: Labrecque, J. A. D.

license: Public Domain

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. JOSEPH STRUPP, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued May 6, 1968 —
    Decided May 23, 1968.
    Before Judges Corroed, Collester and Labrecque.

      Mr. Carl 11. Sailer, Assistant Deputy Public Defender, argued the cause for appellant (Mr. Peter Murray, Public Defender, attorney).

      Mr. Raymond R. Trom'badore, Assistant Prosecutor, argued the cause for respondent (Mr. Michael R. Imbriani, Prosecutor of Somerset County, attorney).
   The opinion of the court was delivered by

Labrecque, J. A. D.

Defendant appeals from denial of his petition for post-conviction relief.

Defendant previously pleaded non vult to two indictments charging him with sodomy in violation of N. J. S. 2A : 143-2. On June 4, 1954 he was sentenced pursuant to the Sex Offender Act, N. J. S. 2A :164-3, to two indeterminate terms in the New Jersey State Hospital at Greystone Park, to be served concurrently.

In January 1962 defendant moved for correction of his sentence alleging that he should not have been sentenced under the Sex Offender Act. His motion was granted and he was resentenced on June 29, 1962 to not less than 12 nor more than 15 years in State Prison on each indictment, to run consecutively, with credit for 3,036 days already served. Defendant’s petition for post-conviction relief sought a holding that his new prison terms were to be served concurrently rather than consecutively. Relief was denied and the present appeal followed.

In substance, defendant’s challenge to the judgment below is based upon his contention that in correcting his admittedly illegal sentences in 1962 the sentencing judge was precluded from making the new sentences consecutive where they had previously been concurrent.

The State urges that State v. Weeks, 6 N. J. Super. 395 (App. Div. 1950), is dispositive of the point raised. In that ease defendant had pleaded guilty to a number of separate charges and had been sentenced on each, the sentences to run concurrently. It was later determined that the major sentence imposed was illegal (because defendant had not been charged as a third offender), whereupon defendant was resentenced to a legal term, but to run consecutively to, rather than concurrently with, the sentences imposed for the other offenses. Defendant there contended that since the sentence had been held to be invalid only because it had exceeded the maximum term permissible, it was correctable only in that regard and the new sentence could not be extended by making it consecutive to the other terms. We held that in considering what term should be imposed at the resentencing the judge was free to determine not only the term of years but also whether it should be served consecutively to or concurrently with the other valid sentences. See also State v. Stephenson, 41 N. J. Super. 315, 322 (App. Div. 1956).

Defendant urges that our holding in Weeks followed that of the United States Court of Appeals in Kitt v. United States, 138 F. 2d 842 (4 Cir. 1943), and that the effect of that decision had been subsequently circumscribed in Kennedy v. United States, 330 F. 2d 26 (9 Cir. 1964) and Patton v. State of North Carolina, 256 F. Supp. 225 (W. D. N. C. 1966), affirmed 381 F. 2d 636 (4 Cir. 1967), certiorari denied 390 U. S. 905, 88 S. Ct. 818, 19 L. Ed. 2d 871 (1968). In Kitt, where the case had been remanded for “an entirely new sentence,” it was held that the sentencing judge could impose “any sentence which was within the limits prescribed by the statute.” In Kennedy, where defendant had been sentenced to two ten-year concurrent terms for offenses which carried a maximum penalty of but five years, it was held that the sentences were void only as to the excess over five years and that in correcting them, the court could not order that they be served consecutively in order to carry out what was apparently the original intention of the sentencing judge. Accord, Duggins v. United States, 240 F. 2d 479, 481-482 (6 Cir. 1957). See 8 Moore, Federal Practice, § 35.03(2) (1968).

In Patton defendant’s conviction (for which he had received a 20-year prison term) had been set aside on constitutional grounds. He was again convicted and thereupon sentenced to a term which was five years in excess of that previously imposed, hut against which ho was allowed credit for the five years ho had already served. The District Court held the new sentence invalid on the ground that the increased punishment violated the due process and equal protection clauses of the Fourteenth Amendment to the Federal Constitution. The Circuit Court of Appeals affirmed, concluding that:

“* * * increasing Patton’s punishment after the reversal of Ms initial conviction constitutes a violation of his Fourteenth Amendment rights in that it exacted an unconstitutional condition [the risk of a greater sentence or a denial of credit for time already served] to the exercise of his right to a fair trial, arbitrarily denied him the equal protection of the law, and placed him twice in jeopardy of punishment for the same offense.” (381 F. 2d, at p. 646)

Compare United States v. White, 382 F. 2d 445 (7 Cir. 1967) (upholding greater sentence based upon an expanded presentence report which revealed events subsequent to defendant’s first conviction); United States v. Russell, 378 F. 2d 808 (3 Cir. 1967), certiorari denied, Starner v. Russell, 389 U. S. 889, 88 S. Ct. 166, 19 L. Ed. 2d 189 (1967).

We find it unnecessary to determine whether the cases defendant cites call for any modification of the rule enunciated in State v. Weeks, supra. They clearly are not applicable to the facts before us. The defect in defendant’s original sentence was not confined, as defendant claims, to the length of his confinement (in terms of mínimums and máximums) but involved his entire sentence.

The statute, N. J. S. 2A :164-5, provides that a defendant, who on the basis of a written report from the Diagnostic Center is found to be a sex offender, shall be required by the court, upon recommendation of the Diagnostic Center, to undergo specialized treatment for his “mental and physical aberrations.” In such case the court may commit defendant to an institution to be designated by the Commissioner of Institutions and Agencies for treatment, N. J. S. 2A :164-6, in which case the commitment may not exceed the maximum length of sentence permitted by law for the crime of which defendant has been convicted. In the instant case, the court having first mistakenly determined from the report that defendant required treatment as a sex offender, imposed concurrent rather than consecutive commitments to Grey-stone Park. Obviously, since defendant’s commitment on the first charge was for the purpose of curing him of his “aberrations,” his detention thereafter for any additional time under the second charge would have served no useful purpose.

When on defendant’s motion it was made apparent that defendant’s sentencing as a sex offender was without warrant, the sentences became inoperative in their entirety and were properly vacated. Cf. State v. Flood, 32 N. J. Super. 161 (App. Div. 1954). Accordingly, the sentencing judge was not bound by the provisions of the prior sentences in any respect but was free to consider anew the term of years to be imposed for each offense and whether they should be served consecutively or concurrently.

The judgment is affirmed.


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

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. GEORGE DELOS SANTOS, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued March 18, 1968 —
    Decided April 9, 1968.

      Before Judges Coníobd, Collbstwí and Labkecque.

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

      Mr. James R. Zazzali, Assistant Prosecutor, argued the cause for respondent (Mr. Joseph P. Lordi, Essex County Prosecutor, attorney).
   The opinion of the court was delivered by

Conford, S. J. A. D.

Defendant appeals from a conviction

for possession of narcotics. The heart of the appeal is the claim that brutality of the police in “choking” an alleged confederate to prevent his swallowing narcotics assertedly handed him by defendant when about to be arrested by the police invalidated the resulting disclosure of the narcotics and prevented their lawful use by the State as evidence in the resulting prosecution. Reliance is placed on Rochin v. People of California, 342 U. S. 165, 72 S. Ct. 205, 96 L. Ed. 183 (1951) and certain subsequent California state decisions typified by People v. Martinez, 130 Cal. App. 2d 54, 278 P. 2d 26 (D. Ct. App. 1955).

No motion in advance of trial to suppress the evidence was here made, as required by R. R. 3 :2A-6, nor was any objection to the evidence, or attempt to justify the failure to make the pretrial motion offered by defendant at trial. These factors ordinarily preclude consideration of the point on appeal. State v. Fair, 45 N. J. 77 (1965). Defendant argues that under Fay v. Noia, 372 U. S. 391, 83 S. Ct. 822, 9 L. Ed. 2d 837 (1963) and Henry v. State of Mississippi, 379 U. S. 443, 85 S. Ct. 564, 13 L. Ed. 2d 408 (1965), we are nevertheless required to give consideration to the alleged constitutional infirmity, at lease to the extent of remanding for purposes of a hearing to determine whether defendant waived his rights. We have decided to pass the latter rather complex point as we are fully satisfied that under the version of the evidence most favorable to defendant the activity of the police in preventing destruction of this evidence is not constitutionally vulnerable. Incidentally, we disagree with the State’s contention that defendant has no standing to raise the argument of illegality of the seizure. Jones v. United States, 362 U. S. 257, 80 S. Ct. 725, 4 L. Ed. 2d 697 (1960); State v. Wade, 89 N. J. Super. 139, 156 (App. Div. 1965).

The State’s proofs were, in effect, that after nearby surveillance of apparently open sales of narcotics by defendant, the police approached him and one Galarza and another companion, whereupon defendant handed Galarza two glassine envelopes (later proven to contain narcotics) and told him to “swallow them.” Galarza put them in his mouth, Detective Gockeler “grabbed [him] by the throat,” Detective Lyons tried to pry open Galarza’s mouth, and in the ensuing struggle all three fell to the ground. Thereupon Lyons was able to extract the envelopes from Galarza’s mouth. Lyons testified that Gockeler “grabbed [Galarza] around the throat.”

In the Rochin case, supra, the police invaded defendant’s home and bedroom, and, when they asked him who owned two capsules on a nightstand, he put them in his mouth. A struggle ensued in the course of which three policemen jumped upon him and attempted to extract the capsules, but unsuccessfully. He was handcuffed and taken to a hospital where a doctor at police direction forced an emetic solution through a tube into defendant’s stomach. This “stomach pumping” produced vomiting and brought forth the capsules, which contained morphine (342 U. S., at p. 166, 72 S. Ct. 205. The United States Supreme Court held that the procedures of the police were such as to “shock the conscience.” The court viewed the episode in its entirety — the breach of defendant’s privacy, the struggle to open his mouth and “the forcible extraction of his stomach’s contents.” It was said these were “methods too close to the rack and the screw to permit of constitutional differentiation” (at p. 172, 72 S. Ct., at p. 210), and it was concluded that a state conviction resting on evidence so obtained lacked due process.

In subsequent California decisions it was hold that the Rochin principle applied in a case where what the police did was essentially what happened here. See, e. g., People v. Martinez, supra. There is no prior New Jersey case which can unequivocally be identified as involving the application of force to a suspect’s throat to prevent destruction of evidence. However, in State v. O’Shea, 16 N. J. 1 (1954), a bookmaking suspect, upon approach by the police, put several papers in his mouth and attempted to chew and swallow them. “* * * [T]he two officers struggled with O’Shea until he disgorged the papers.” They were found to be betting slips and the defendant was-convicted. The Supreme Court distinguished Rochin, after reviewing the facts there, by observing: “There is not the slightest similarity between the circumstances of that case and those present here” (16 N. J., at p. 8). It is evident from the O’Shea opinion that the police there must have exerted physical force against the suspect’s body sufficient to have prevented ingestion or jnduced expulsion from his mouth or throat.

We can find no material difference between the facts here and those which in O’Shea our Supreme Court held free from the bar of the Rochin rule. The police have a right short of outright brutality of a shocking nature to apply such reasonable force to a suspect as is fairly necessary to prevent an imminent destruction of evidence of the commission of crime. This was all that occurred here. Each case must be. appraised on its own facts.

■ - We- find no basis for reversal in defendant’s other contentions: that the trial judge made prejudicial comments indiis charge,-that four members of the jury had relatives in law enforcement and that defendant was forced to wear “prison clothes” at his trial,

Affirmed.'


text:
    STATE OF NEW JERSEY, BY THE STATE HIGHWAY COMMISSIONER, PLAINTIFF-RESPONDENT, v. AZZOLINA LAND CORPORATION, A CORPORATION OF NEW JERSEY, ET AL., DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued March 18, 1968 —
    Decided May 21, 1968.

      Before Judges Cojsteord, Collester and Labrecqtje.

      Mr. Daniel T. O'Hern argued the cause for appellant (.Messrs. Abram off, Apy & O’Hern, attorneys).

      Mr. Philip S. Garchman, Deputy Attorney General, argued the cause for respondent (Mr. Arthur J. Sills, Attorney General of New Jersey, attorney; Mr. David A. Biederman, Deputy Attorney General, of counsel and on the brief).
   The opinion of the court was delivered by

Conford, S. J. A. D.

The State appealed from an award by condemnation commissioners of $134,800 to defendant for its damages consequent upon the taking by the State of certain property on the east side of Route 35 for road building purposes. The trial jury fixed damages in the sum of $38,500, and defendant appeals, asserting error in several of -the trial judge’s rulings and prejudice arising from his manner of conducting the trial.

Certain exclusions of evidence proffered by defendant and the court’s restriction of defendant’s cross-examination of plaintiff’s principal expert witness had the cumulative effect, in our judgment, of undue prejudice to defendant’s case and require a reversal and new trial.

Defendant owned a 24.3-acre tract of land which fronted on the highway, prior to the taking, to the extent of about 500 feet. The State condemned three parcels, the largest of which was an irregularly shaped piece on the highway of about 0.55 acres with 240 feet of highway frontage, intended to be used by the State as a “jughandle” for a highway crossing. The other two pieces taken were strips of insignificant size.

There was a good deal of confusion at the trial as to whether evidence of the per se value of the jughandle piece was admissible. The court ruled, during the examination of defendant’s expert witness, Heller, that testimony of the value of the property taken was inadmissible, 'on the basis that the sole criterion of damages was the difference between the value before and-the value after the taking, of defendant’s entire landholding. It was defendant’s position — clearly a correct one ■ — ■ that the measure of damages is either that just stated, or, alternatively, the'value of the pieGe taken plus the diminution of the value of the remainder as' a result of-the taking.' Sterner v. Nixon, 116 N. J. L. 418, 420 (E. & A. 1936). The witness Heller did later, however, in the course of explanation of his appraisal of the total damage from the taking as $147,000 ($635,000 before, and '$488,'000 aftet), get into the record without'objection his‘opinion of the valiie of the property taken as $75,000. In ultimately charge ing the jury, moreoyer, the court gaye the correct rule for ascertainment of damages as stated above.

Plaintiff’s principal expert witness, Lazarus, arrived at an estimate a total damage from the taking of $15,500. In the course of explaining this on cross-examination the witness valued the 0.55-acre parcel taken, per se, at $5,500, a figure apparently based on his unit valuation of the large tract from which it was taken at $10,000 per acre. This approach contrasts with the general expert consensus that a small tract of highway frontage will ordinarily have a substantially larger unit value rate than a large tract, with considerable backhand, inclusive of the frontage piece. (Sec the discussion, infra, of Lazarus’ recent appraisal o£ the Husso property) .

The per se value of the parcel here taken was unquestionably an important and directly relevant factor in the determination of defendant’s damages. Plaintiff’s witness Lazarus offered no sales of small highway pieces to aid the jury in appraising the weight of his valuation of the piece here taken at $5,500. Ills proffered comparable sales were all of comparatively large tracts, offered only to support bis valuations of defendant’s land taken in entirety.

Defendant’s witness, Heller, on the other hand, did proffer three transactions involving small nearby pieces indicative, in his judgment, of the relatively higher unit value, of highway frontage property in smaller parcels. One of these, the Chevron sale, reflected a value of $105,000 per acre. The court excluded this from evidence because the property was on a highway island, with frontage on both sides. Another, the Socouy-Mobil sale, was at $155,000 per acre. This was excluded because the witness was not considering it in relation to the above-mentioned “before and after” test. This was clearly erroneous, as it bore on the per se value of the parcel taken, and, as indicated above, the parties are not restricted solely to the “before and after” approach. The third transaction, the Goldin lease, would have been analyzed by the witness to reflect a fee value of $76,000 per acre. This was excluded by the trial court because the witness did not have the original lease in his possession but only a copy. This was patently a mistaken exercise of discretion. Experts, in making appraisals, commonly rely upon copies of instruments deemed by them reliable. Cf. Delaware, L. & W. R. R. Co. v. City of Hoboken, 16 N. J. Super. 543, 556, 557 (App. Div. 1951), reversed on other grounds, 10 N. J. 418 (1952).

Ordinarily, the exercise of discretion by a trial judge in ruling on the admissibility of comparable sales is sustained on appeal. Moorestown Tp. v. Slack, 85 N. J. Super. 109, 114 (App. Div. 1964), certification denied 43 N. J. 452 (1964). However, a more liberal approach should be taken in determining the admissibility of sales where the parcel taken is a small piece with highway frontage and where there are, as here, apparently few transactions available involving small highway parcels in the proximate area. Id., at pp. 114, 115. The size and location of the parcel here taken are significant valuation characteristics, and the Chevron transaction, being closely comparable in these respects, might well have been held admissible, with the expert indicating his opinion concerning the adjustment necessary to reflect the superior highway access of the parcel sold. Evidence of sales cited by an expert serves the function both of independent evidence for the fact-finder and support for the expert’s opinion of value. The latter factor should generally exert a liberal influence on admissibility. See Delaware, L. & W. R. R. Co. v. City of Hoboken, supra (10 N. J., at p. 434; 16 N. J. Super., at pp. 557-58).

We note, further, our disagreement with the trial court’s intimations in colloquy that the Chevron and So-cony-Mobil sales were not admissible comparables because conditioned on zoning permits for conduct of gasoline businesses by the vendees. The availability of the subject jug-handle for use as a gas station was an open question on which experts and jurors might differ. The condition of obtaining a permit is also a matter for consideration by the fact-finder in evaluating the sales, but not a justification for their exclusion from evidence.

One of the sales cited by the plaintiff’s witness, Lazarus, in support of his “tract” valuation of defendant’s property, was that of Morris to Eusso in October, 1964. Some 20 acres of Eoute 35 highway property about a mile and a quarter north of the subject property sold for $160,-000, and Lazarus analyzed the sale as reflecting a value of $8000 per acre for the tract. He stated he himself considered the property as having a value of $8000 per acre as of the time of the sale. On cross-examination the witness volunteered that he had appraised the Eusso property recently for the owner in connection with a condemnation of a small piece of it by the State Highway Department. Defendant asked the court to require the witness to produce a copy of the appraisal for inspection in connection with the cross-examination on the Eusso sale. This was objected to by plaintiff on grounds this was “res inter alios ” and the court sustained the objection on the basis that the appraisal constituted a “work-product.” Neither of these concepts justified the court’s ruling. A recent appraisal by the expert witness of property the sale of which he had cited as reflective of a value therefore which supposedly supported his valuation of the property here involved was a plainly proper and potentially fruitful subject of inquiry in the effort to attack the witness’ expert opinion. It is elementary that an expert witness is always subject to searching cross-examination on the basis for his opinion.

We called for the production of the appraisal in question in order to determine the materiality of its exclusion, and we have examined it. The appraisal, made as of February 11, 1967, was in the sum of $187,000 for a 3.09-acre portion of the Eusso tract, located directly on Eoute 35. This contrasts with Lazarus’ valuation, given in this case, of the entire 20-acre Ensso tract as of Octobef .1964 at $160,000 and with his value for the 0.55-acre parcel here in question (as of 10/22/63) at $5500. Even allowing for the known rise in realty values during the respective %y¡. and 3y2 year intervals, it is clear to us that defendant sustained manifest harm in not being permitted to use this appraisal on cross-examination of the adverse expert witness.

We cannot agree with plaintiff’s argument that the ruling on the Eusso appraisal was nonprejudicial merely because the jury verdict was higher than Lazarus’ estimate of damage. The verdict must have been based on a consideration of the experts’ opinions on both sides, and it was much closer to Lazarus’ figure than to that of Heller.

In view of the foregoing, we need not comment on defendant’s other grounds of appeal except to say that, generally speaking, it is wise for the trial judge not to intrude upon the examination or cross-examination of a real estate expert when not called upon to rale on objections or make essential clarifications of the record. In this technical area, the trial effort should be to minimize any interruptions of testimony which could tend to confuse a lay jury.

Eeversed and remanded for a new trial.

       The reflected unit values of the Chevron. Socony-Mobil and Goldin transactions were furnished the court at its request after the argument.


author: Per Curiam.

text:
    JESSE MOSKOWITZ, ET AL., PLAINTIFFS-RESPONDENTS, v. JOHN J. GROGAN, ET AL., DEFENDANTS-APPELLANTS. C. WILLARD HECKEL, ET AL., PLAINTIFFS-APPELLANTS, v. NICHOLAS V. CAPUTO, INDIVIDUALLY AND AS COUNTY CERK OF ESSEX COUNTY, DEFENDANT-RESPONDENT.
    (Docket No. A-1257-67)
    (Docket No. A-1213-67)
    Superior Court of New Jersey Appellate Division
    Argued May 13, 1968 —
    Decided May 13, 1968.

      Before Judges Gaulkim, Lewis and Kolovsky.

      Mr. Jesse Moskowitz argued the cause for the Hudson County McCarthy ticket; Mr. Daniel F. Gilmore, Assistant County Counsel, argued the cause for John J. Grogan, Clerk of Hudson County, (Mr. William F. Kelly, Jr., County Counsel, attorney; Mr. Robert H. Wall, Assistant County Counsel, on the brief).

      Messrs. Lawrence Lerner and William Rossmoore argued the cause for the Essex County McCarthy ticket; Mr. Adrian M. Foley, Jr. argued the matter for the regular Democratic ticket (Messrs. Pindar, McElroy, Gonnell & Foley, attorneys) ; Mr. Irwin I. Kimmelman, County Counsel, argued the cause for Nicholas Y. Caputo.

      Mr. Frank J. Guccio, County Counsel of Bergen County, appeared amicus curiae.

   Per Curiam.

These cases were consolidated for argument because they involved common questions of law and, to a considerable extent, of fact. Since they affected the primary election to be held on June 4 we decided them orally from the Bench. This opinion is filed to make a record of those decisions.

I

MOSKOWITZ V. GROGAN

Without a drawing, Hudson County Clerk Grogan made the following assignment of places on the voting machine to those running in the Democratic primary:

On Row A, with the slogan “Regular Democratic Organization,” candidates for all offices at stake, namely, Members of the House of Representatives, Delegates and Alternates to the Democratic National Convention (hereafter Delegates), Sheriff, County Clerk and three Freeholders.

On Row B, candidates for the same office under the slogan “Hnited Democrats.”

On Row C, Delegates only, with the slogan “McCarthy for President.”

On Row D, Delegates only, with the slogan “Jesse Gray for President.”

The County Clerk denied the demand of the McCarthy slate for a drawing for position among all four slates. The McCarthy slate alone sought review in the Law Division, which reversed and ordered that on May 13 there be “a drawing pursuant to N. J. 8. A. 19:23-24 for line positions on the ballot for all four groups of candidates in the Democratic Party Primary.” The County Clerk then appealed to this Court.

We announced the following decision from the Bench:

“We understand from the litigants here represented that the United Democrats did not complain or appeal as to their position on the ballot. Mr. Moskowitz has stated that the McCarthy ticket does not want a drawing if it is limited to their ticket and the Gray ticket.
That being the case, the order of the Law Division, Hudson County, is reversed.”

II

HECKEL Y. CAPUTO

Also without a drawing, Esses County Clerk Caputo made the following assignment of places on the voting machines to those running in the Democratic Primary:

On Row A, with the slogan Regular Democratic Organization, candidates for all offices at stake in Esses County, namely, Members of the House of Representatives, Delegates, and three Freeholders.

On Row B, Delegates only, with the slogan “McCarthy for President.”

Charles A. Matthews, an unaffiliated candidate for Freeholder with his own slogan, was also assigned a place on Row C.

The County Clerk denied the demand of the McCarthy slate for a drawing for position and that slate alone sought review in the Law Division, Esses County, which affirmed. The McCarthy slate then appealed to this Court.

We announce the following decision from the Bench:

“Here, too, we understand the McCarthy slate does not want a drawing if it is limited to competing with only the Gray ticket and the United Democrats ticket (if one has been filed). We are advised that Mr. Matthews is content with the position assigned to him. Therefore, the judgment of the Law Division, Essex County, is affirmed.”

Ill

In Hawkes v. Gates, 129 N. J. L. 5 (Sup. Ct. 1942) a faction of the Republican party filed a joint petition for the nomination in the primary election of its candidates for the 16 county offices to be filled, under the slogan “Clean Government Republican.” Another faction did likewise under the designation “Republican Smash Bossism.” Gill Robb Wilson, a candidate for the Republican nomination for the United States Senate requested that his name be placed on the same line with the Clean Government candidates, pursuant to R. S. 19:49-2. The deputy County Clerk drew only as between the Clean Government and Smash Bossism tickets and allotted the first two lines to them. (Although the opinion says that Clean Government was drawn first, it says that the deputy announced that “the group bracketed under the slogan ‘Republican Smash Bossism’ would be placed on the first line of the ballot; the group bracketed under the slogan ‘Clean Government Republican’ on the second line.” (129 N. J. L., at p. 7). Why this was done does not appear in the opinion.)

There were five unaffiliated candidates for United States Senator. The deputy placed the name of each of the five candidates in the box and drew them forth in the following order: (1) Biehl, (2) Ilawkes, (3) Kielb, (4) Pullen and (5) Bowers. The deputy then assigned Biehl, Hawkes and Kielb to the third line and Pullen and Bowers to the fourth line.

Hawkes appealed, contending that there should be a new drawing of the names of all six candidates for United States Senator (including Wilson) “and that the candidates be placed on the * * * ballot in the order in which the names be drawn * * or that the County Clerk be directed to first place the names of the unaffiliated five “on separate lines in the order in which the names were drawn” ahead of the Smash Bossism and Clean Government lines. The Court refused to do so.

Hawkes has been followed in later cases (In re Hoffman, 134 N. J. L. 155 (Sup. Ct. 1946); Bado v. Gilfert, 13 N. J. Super. 363 (App. Div. 1951); see also Harrison v. Jones, 44 N. J. Super. 456, 461 (App. Div. 1957)) and it must be presumed that the Legislature was aware of this ruling when it amended N. J. S. A. 19 :49-2 in 1944, 1945, 1946 and 1948 without making any change therein affecting that holding. Although in HawTces the Court dealt with individual candidates, we think the holding applies where, as here, there are more than one candidate whose petitions were filed with the Secretary of State and who, though affiliated among themselves, are not affiliated, pursuant to N. J. S. A. 19 :49-2, with a ticket of candidates who filed a joint petition with the County Clerk with a common designation or slogan.

In short, we hold that where there are two or more groups of candidates whose joint petitions were filed with the County Clerk (hereafter called, for brevity, county candidates), there must be a drawing for position as between those groups, drawn as a unit, regardless of whether candidates for municipal or party office in municipalities, or candidates whose petitions were filed with the Secretary of State (hereafter called, for brevity, state candidates), did or did not affiliate with the county candidates pursuant to N. J. S. 19:49-2. If there was such affiliation by state candidates, their names must be placed on the same line as the county candidates with which they affiliated. Where there are two or more groups of state candidates who have not affiliated with county candidates they are entitled, as units, to a drawing for position on the ballot as among themselves, but not as against those affiliated with county candidates, for the state candidates who affiliate with county candidates may not be displaced from their position on the same line with their affiliated county candidates. N. J. S. A. 19 :23-24; N. J. S. A. 19 :49-2.

Therefore, we hold that, in Hudson County, as between the McCarthy ticket (the only one which sought review of the action of the county clerk) and the Regular and United Democratic tickets, the McCarthy ticket was not ■entitled to a drawing, and in Esses County the McCarthy ticket was not entitled to a drawing as against the Regular Democratic ticket.

Ho costs to any party.


text:
    LARRY ROBINSON, COMPLAINANT-RESPONDENT, v. BRANCH BROOK MANOR APARTMENTS, GEORGE LEVIN, MARTIN LEVIN, VINCENT G. STROWAY AND CHARLES WALTON, RESPONDENTS-APPELLANTS, v. NEW JERSEY DIVISION ON CIVIL RIGHTS, RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued April 1, 1968 —
    Decided May 17, 1968.

      Before Judges Cofeoed, Collester and Labrecque.

      Mr. Joseph A. Weisman argued the cause for appellants (Messrs. Hannoch, Weisman, Stern & Besser, attorneys; Mr. James J. Shrager, on the brief).

      Mr. Stephen Slcillman, Deputy Attorney General, argued the cause for respondent, New Jersey Division on Civil Rights (Mr. Arthur J. Sills, Attorney General of New Jersey, attorney).
   The opinion of the court was delivered by

Conford, S. J. A. D.

Defendants appeal from the findings, determination and order of the Director, Division on Civil Rights, adjudicating their guilt of discrimination in respect of the rental of an apartment, as against the complainant, Robinson, a Negro, in violation of the Law against Discrimination, particularly N. J. S. A. 18 :25-12(g) (1).

The appeal proceeds on two broad grounds: (1) the fact-finding of discrimination against Robinson by defendants was unjustified; (2) the terms of the remedial administrative order were unduly broad and vulnerably vague.

I

We have carefully canvassed the entire record and find defendants’ objections, legal and factual, to the determination of discrimination, to be without merit. The proofs adduced, if free from attack on admissibility grounds, reasonably sufficed to establish that the defendant landlord, acting through its agent Walton, and the other individual defendants associated with the corporate defendant, hindered, discouraged and refused the rental of an apartment to Robinson while almost simultaneously indicating the availability of the same apartment to a white applicant, Barbara Spooner. Both Mrs. Spooner (pretending to be Miss Spooner) and Robinson informed Walton they were 20 years of age and earning $106 per week. They applied for the apartment the same afternoon, Robinson first. The hearing examiner and the Director could properly find from the entirety of the proofs that the landlord’s purported reasons for the refusal of Robinson — his minority and low earnings —• were not the real reasons and that in actuality Robinson was denied acceptance because of his race.

The crux of the fact case centered upon the alleged telephone calls from Walton to Mrs. Frank on May 1, 1967, from Mrs. Frank to Mrs. Spooner the same evening, and from Mrs. Spooner to Walton on May 2, 1967. If believed, the contents of these communications tended to establish the unqualified acceptance of Mrs. Spooner as a suitable tenant by defendants. In contrast therewith, the concomitant evasion, putting off and ultimate rejection of Robinson made out a prima facie case of illegal discrimination, which was not satisfactorily rebutted.

Defendants objected at the hearing to the evidence of tlie Walton-Frank telephone call on grounds of absence of authentication of Walton as the caller, as Mrs. Frank had not known Walton previously. However, in State v. Bassano, 67 N. J. Super. 526, 530-34 (App. Div. 1961), we held that although traditionally authentication of a telephone conversation required the caller’s identification of himself as X and the witness’s affirmation that he was able to recognize the voice as that of X, the preferred rule now is that reliable circumstantial evidence of the identity of the caller as X will suffice. See McCormick, Evidence (1954), § 193, pp. 405-106. Here Mrs. Spooner had given Walton the Frank address as her own. Although she had also given him a fictitious telephone number for that address, there was extrinsic evidence justifying an inference that someone in the defendant organization had ascertained the correct number. The alleged purport of the Walton call was that Mrs. Spooner could have the apartment. There was supporting evidence that Walton had in fact made the call to the Prank home in that in his conversation with Mrs. Spooner the next day, the admissibility of which was not attacked by defendants, he confirmed the fact he had tried to reach Mrs. Spooner at the Prank apartment the previous day. Circumstances either preceding or following the disputed telephone conversation may serve to establish the identity of the party. See 29 Am. Jur. 2d, Evidence, § 383, p. 435; Annotation, 105 A. L. R. 326, 335 (1936).

While defendants’ brief describes the Prank testimony as hearsay, it offers no supporting argument. The testimony was not hearsay, as it was not offered to show the truth of any assertion of fact by Walton, but rather as verbal conduct constituting a part of the alleged discriminatory activity of the defendants. McCormick, op. cit., § 228, pp. 463-64.

Settled principles of judicial review of gwosi-judicial determinations of administrative agencies require affirmance of the fact-findings here. The conclusion of discrimination was supported by competent, substantial evidence on the whole record. Atkinson v. Parsekian, 37 N. J. 143, 149 (1962).

We are not in agreement with the additional contention that defendants were denied a fair hearing in that the hearing examiner, whose recommended findings were adopted by the Director, icblindly and uncritically” accepted all the testimony of complainant’s witnesses despite obvious defects and “inherent lack of credibility” and rejected that of defendants though “entirely supported by credible evidence.” It is true that substantially all of the incriminatory evidence was accepted while that to the contrary was either disbelieved or held insufficient or immaterial to avert the conclusion of discrimination. But our study of the record indicates that the foregoing is not inconsistent with the conclusion of fair and bona fide discharge of their duties by the officers in the Division. Credibility was an open question on both sides of the controversy here.

II

Aside from their attack on the Director’s determination on the merits, defendants attack those provisions of the order which: (1) direct the corporate defendant to enter into a two-year lease with complainant, a minor (conditioned on cosigning by his parents); (2) direct defendants to cease and desist from discriminating in reference to rental of apartments at the premises in question with respect to processing applications, handling deposits, applying terms and conditions, negotiating and executing instruments and furnishing facilities; (3) specify the same provisions as in (2) but in respect of any apartments now or hereafter owned, controlled or managed by defendants; (4) order defendants to cease and desist from all acts or practices prohibited by N. J. 8. A. 18:25-12(y), which contains three subdivisions, in view of the fact that defendants were charged with and found guilty of a violation of only one of these —• (g) (1); (5) direct defendants to circulate instructions to employees to comply with the order, and (6) direct defendants to post a copy of the order at a prominent place at the premises.

The statutory provision giving jurisdiction to the Director, N. J. S. A. 18:25-17, provides, pertinently:

“If, upon all evidence at the hearing the director shall find that the respondent has engaged in any * * unlawful discrimination as defined in this act, the director shall state his findings of fact and conclusions of law and shall issue and cause to be served on such respondent an order requiring such respondent to cease and desist from such * * * unlawful discrimination and to take such affirmative action, including, but not limited to, * * * extending full and equal accommodations, advantages, facilities, and privileges to all persons, as, in the judgment of the director, will effectuate the purpose of this act, and including a requirement for report of ?he manner of compliance.” (Emphasis added)

In considering whether the order departs from the statutory standards measuring the Director’s remedial power it must be kept in mind that the legislation is regarded as designed to vindicate the rights of the public, as well as those of the individual complainant, against unlawful discrimination. David v. Vesta Co., 45 N. J. 301, 327 (1965). This act stands high in our public policy. Pfaus v. Palermo, 97 N. J. Super. 4, 8 (App. Div. 1967).

Item (1) specified above merely requires defendants to accord complainant the same treatment as the Director found defendants were ready to accord a white minor as tenant. If defendant is willing to rent to white minors it cannot complain of being compelled to rent to Negro minors. See N. J. S. A. 18:25-12(g) (2) (discrimination as to terms or conditions of rental or lease).

Items (2), (3) and (4) are objected to by defendants on the theory that the subject matter of the directions encompassed therein is not sufficiently related to that concerning which discrimination was here particularly adjudicated. Reliance is had on the principle that “administrative orders must be reasonably related to the findings upon which they rest and must avoid undue breadth.” 1 Davis, Administrative Law (1958), § 8.19, p. 603; N. L. R. B. v. Express Publishing Co., 312 U. S. 426, 443, 61 S. Ct. 693, 85 L. Ed. 930 (1941). Analysis of the cases which have applied this principle, sometimes sustaining, on other occasions striking down, orders or portions of administrative orders, indicates that the criterion of “reasonable relationship” is frequently applied from the standpoint of the likelihood, from violation in one area, of the future incidence of violation in another more or less cognate area. The inquiry is subjective. Eor example, a pattern of past behavior by the respondent may indicate the permissible scope of agency control over future behavior by appropriate order. See F. T. C. v. Colgate-Palmolive Co., 380 U. 8. 374, 394-395, 85 S. Ct. 1035, 13 L. Ed. 2d 904 (1965).

In the field of rental discrimination because of race, the Director is not without justification founded upon common knowledge and experience in believing that an apartment owner found to have discriminated because of race in one instance may well have thereby manifested a general disposition to discriminate in that respect. This would reasonably justify a correspondingly broad degree of flexibility in the terms of the cease and desist order, having in mind the statutory policy of protecting the public at large as welL as the individual complainant. So viewed, we can find no basis for criticism of the items of the order under consideration.

Item (2) of the defendants’ objections covers the various common types of rental discrimination recognized by specific prohibitions in N. J. S. A. 18 :25-12 (g) and (h), or closely related to. We see no objection to the order prohibiting practice of any of the commonly known types or aspects of discrimination in rentals in relation to an adjudicated violator. Item (3) extends the prohibition to any property which defendants may own, control or manage now or in the future. This merely extends the prohibitions to property of defendants other than the site here involved and to later acquired property. Again, we see no objection. A potential disposition to discriminate in renting justifies both of the questioned provisions of the order in pursuit of the aim of public protection.

Item (4) of the objections is disposable on substantially the same grounds as set forth above in relation to Item (2).

Item (5) consists of a complaint of lack of understanding of how defendants are to carry out the requirements of the order for instructions to their employees to comply with the order. We think defendants know well how to comply substantially with the direction, and that is all that is required.

The objection to Item (6) is that posting the order stigmatizes defendants as law violators. However, the purpose of the order is not to stigmatize anyone but to alford prospective tenants applying at defendants’ premises protective information as to their rights and to forewarn them of the possibility of denial thereof at the premises. Posting is a common form of administrative sanction and clearly unexceptionable. Cf. Sellers v. Philips Barber Shop, 46 N. J. 340, 344 (1966).

Affirmed.


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

text:
    CHARLES P. JACKSON, COMPLAINANT-RESPONDENT, v. CONCORD COMPANY, A CORPORATION OF NEW JERSEY, t/a HARTFORD ARMS, JOSEPH SAMOST, “JANE” SAMOST, (FIRST NAME BEING FICTITIOUS) JANE ADAMS, EVELYN O’DONNEL, RESPONDENTS-APPELLANTS.
    Superior Court of New Jersey Appellate Division
    Argued April 29, 1968 —
    Decided May 20, 1968.

      Before Judges Sullivan, Polev and Leonard.

      Mr. Peter P. Green argued the cause for respondents-appellants {Mr. Robert T. Mealy, attorney).

      Mr. Stephen Skillman, Deputy Attorney General, argued the cause for the Division on Civil Rights {Mr. Arthur J. Sills, Attorney General of blew Jersey, attorney).
   The opinion of the court was delivered by

Sullivan, S. J. A. D.

Here involved are consolidated appeals, pursuant to R. R. 4:88-8(a), from the findings, determination, order, and supplemental order of the Director of the Division on Civil Rights, Department of Law and Public Safety.

The matter grows out of the efforts of Charles P. Jackson, complainant, to secure an apartment in a large apartment development owned by the corporate respondent. The complainant filed an application for an apartment and paid a deposit. Unable to have his application processed or acted on, complainant filed a complaint with the Division charging that respondents had delayed considering his application for tenancy because he is a Negro. After a determination that probable cause existed for crediting the allegations of the complaint, and after conciliation was unsuccessful, a hearing was scheduled and testimony taken before a hearing examiner. As a result of the hearing, and acting on the recommendations of the hearing examiner, the Director issued his findings and determination that respondents were guilty of discrimination in violation of the Law Against Discrimination, N. J. S. A. 18 :25 — 1 et seq.

The Director’s Order and Supplemental Order mandated that

(1) Respondents forthwith cease and desist from discriminating against complainant and all other persons with respect to the rental or lease of apartments;

(2) Respondents, within 20 days of the Order, issue notice of the Order and written instructions for compliance therewith to all their officers, agents, and employees;

(3) Respondents cause to be posted on the premises, for a period of one year from the date of the entry of the Order, a true copy of the official housing poster of the Division on Civil Rights, a true copy of the written instructions to its officers, agents, and employees, and true copies of the Order and Supplemental Order issued by the Director;

(4) Respondents forthwith lease an apartment to complainant on specified terms;

(o) Respondents, for a period of one year following the date of the entry of the Order, make available to the Division on Civil Rights, during business hours, all records and applications concerning any and all vacancies occurring during that period for any and all apartments located in the development, the disposition of each such apartment, and copies of the rental or lease arrangement made for each vacancy;

(6) Respondents pay complainant “compensatory damages,” as determined by the Director, for losses suffered as a result of the discrimination.

Respondents took separate appeals from the order and supplemental order of the Director, which appeals have been consolidated. After the notices of appeal had been filed, an apartment ivas made available to complainant and a lease dated December 18, 1967 entered into with him on terms which differ somewhat from those specified by the Director. Pending the outcome of the appeals, this court stayed enforcement of the Director’s orders, subject to the terms of the aforesaid lease.

Defendants contend that the finding of discrimination is not supported by substantial credible evidence (see Clover Hill Swimming Club v. Goldsboro, 47 N. J. 25, 36 (1966), and that in any event the proofs are insufficient to implicate the individual respondents in the alleged discrimination.

We conclude that the finding of discrimination is fully supported by the record. Complainant was subjected to all kinds of evasion and delay on his application. This treatment, together with the testimony of respondent’s former rental agent as to the instructions given her, adds up to substantial credible evidence of a policy of discrimination in which complainant found himself enmeshed after he filed his application.

Operation of the development in corporate form does not shield the individuals owning and acting for the corporation from responsibility. Joseph Samost is the principal owner and president of respondent corporation, June Adams a stockholder and secretary, and Evelyn O’Donnel the present rental agent. Effective implementation of the Division’s orders required that the individuals concerned be included in the findings and orders. Otherwise a new corporate shield could be formed to evade the Division’s ruling. Jones v. Haridor Realty Corp., 37 N. J. 384 (1963).

Respondents also argue that the posting requirements, and the provisions for inspection of the business records, exceed the powers given the Division under this act and also constitute, as to respondents, an unreasonable, arbitrary and invidious classification in violation of the State and Federal Constitutions.

This argument lacks merit. The act, in addition to authorizing a cease and desist order, empowers the Director to take such affirmative action, including but not limited to extending full and equal accommodations, as in the judgment of the Director will eifecutuate the purpose of this act, including a requirement for report of the manner of compliance.

We have recently decided that requirements of posting are within the powers granted the Director. Robinson v. Branch Brook Manor Apartments, 101 N. J. Super. 117 (App. Div. 1968). Our reasoning in that case applies equally here.

The provision in the order that respondents, for a period of one year, make available for inspection by the Division its business records relating to apartment vacancies and rentals thereof, is a necessary adjunct to the power vested in the Director to order an end to the unlawful discrimination and to require a report of the manner of compliance. All the provision does is afford the Director supervision of respondents’ rentals during a probationary period of one year. Such authority is clearly within the framework of the act.

Finally, we consider that part of the Director’s order awarding “an appropriate amount of compensatory damages” to complainant. The order, in effect, directed respondents to reimburse complainant: (1) for excess rental the complainant was required to pay as a result of the unlawful discrimination, and (2) ten cents for every additional mile complainant drove back and forth from work as a result of being unlawfully denied the opportunity to rent an apartment in the development. The amount of damages was to be fixed by the Director by subsequent order after an apartment had been made available to complainant.

There is some support for the argument that, upon a finding of unlawful discrimination, the Director should have the right to give the complainant complete relief in-eluding the award of compensatory damages. See Blumrosen, “Antidiscrimination Laws in Action in New Jersey: A Law-Sociology Study,” 19 Rutgers L. Rev., 187, 242 (1965). In New York, the State Commission Against Discrimination is specifically empowered by statute to order payment of compensatory damages. Executive Law, McKinney’s Consol. Laws, c. 18, § 297, subd. 2 (c). The California statute authorizes its Commission to award damages not exceeding $500, in the event that housing accommodations are not available. West’s Ann. Health & Safety Code, § 35738. See generally 15 Am. Jur. 2d, Civil Rights, § 63, pp. 448-450.

The New Jersey Law Against Discrimination does not contain an express provision empowering the Director to award damages. The pertinent section, N. J. S. A. 18:25-17, is as follows:

“18:25-17. Findings and conclusions of director; order

If, upon all evidence at the hearing the director shall find that the respondent has engaged in any unlawful employment practice or unlawful discrimination as defined in this act, the director shall state his findings of fact and conclusions of law and shall issue and cause to be served on such respondent an order requiring such respondent to cease, and desist from such unlawful employment practice or unlawful discrimination and to take such affirmative action, including, but not limited to, hiring, reinstatement or upgrading of employees, with or without back pay, or restoration to membership, in any respondent labor organization, or extending full and equal accommodations, advantages, facilities, and privileges to all persons, as, in the judgment of the director, will effectuate the purpose of this act, and including a requirement for report of the manner of compliance. The director shall have the power to use reasonably certain bases, including but not limited to list, catalogue or market prices or values, or contract or advertised terms and conditions, in order to determine particulars or performance in giving appropriate remedy. If, upon all the evidence, the director shall find that the respondent has not engaged in any such unlawful ■employment practice or unlawful discrimination, the director shall state his findings of fact and conclusions of law and shall issue and cause to be served on the complainant an order dismissing the said complaint as to such respondent.”

The Attorney General, appearing for the Division, argues that a reasonable and sensible interpretation of the act in the light of its history and development, and particularly in view of the specific provision for back pay in employment cases, requires that the act be understood to empower the Director to order complete relief, including the award of money damages for losses suffered as a result of the discrimination. Actually, the issue is the narrow one of statutory construction. The inquiry is as to the legislative intent.

The award of damages to a person suffering monetary loss as the result of the unlawful action of a third party has traditionally been limited to judicial proceedings. Power to award damages will not be extended to an administrative body unless the legislative purpose to grant such power is plainly indicated.

We find nothing in the New Jersey Law Against Discrimination which clothes the Director with authority to award damages. The provision for back pay in employment cases is a precise and limited item of relief. It cannot be interpreted as a broad grant of power. The authorization to take “affirmative action” refers to putting an end to the unlawful employment practice or unlawful discrimination and securing compliance with the cease and desist order. It is not a vesting of carie blanche power in the Director.

The term “compensatory damage,s” is generic and encompasses all damages in satisfaction of or in recompense for the loss or injury sustained. 22 Am. Jur. 2d, Damages, § 11, p. 26. In the instant ease, it would include not only out-of-pocket disbursements and expenses, but also compensation for humiliation, mental suffering and time spent in vindicating the right. Even exemplary damages have a compensatory aspect to them. A broad power to assess such damages in an administrative hearing cannot be inferred as ancillary to the admitted right in the Director to order an end to the unlawful discrimination. We must deny the Division such power absent clear legislative authorization.

The provision for damages is hereby vacated and set aside. Otherwise the findings, determination, order and supplemental order of the Director are affirmed.