author: Thomas, J. S. C.

text:
    GERALDINE SILVERMAN, JOHN DALTON, RUTH J. DALTON, JOHN J. CAFFREY, SR., EUGENE ZDUNIEWICZ, PLAINTIFFS, v. BOARD OF EDUCATION OF THE TOWNSHIP OF MILLBURN, DEFENDANT.
    Superior Court of New Jersey Law Division
    Decided May 14, 1975.

      Mr. Edward Kucharski for plaintiffs.

      Mr. Steven B. Hoskins for defendant (Messrs. McCarter & English, attorneys).
   Thomas, J. S. C.

This action comes before the court by way of an order to show cause. Plaintiffs are a bondholder and taxpayers residing in the Township of Millburn. Defendant is the Board of Education of Millburn. This dispute has arisen over the proposed action of defendant board to close the Washington Elementary School and lease it to the State Department of Education for use as a school for the hearing handicapped. There being no factual disputes, but only questions of law, the action is being resolved on cross-motions for summary judgment.

Washington School was constructed in 1968 with funds from a multi-purpose school bond issue. Construction was approved by a referendum on January 24, 1967 which “authorized” the board of education “to construct a new elementary schoolhouse to be designated as Washington School.” The same referendum also authorized defendant to purchase land and embark on other construction projects not connected with the Washington School. The total amount of bonds authorized was $2,870,000. This amount was greatly in excess of the sum needed for construction of Washington School. The bonds themselves do not specify for what purposes the money is to be used, except to say they were authorized by virtue of the January 24, 1967 referendum. The bonds contain no express covenants restricting the use of the Washington School building for use as an elementary school.

Plaintiffs challenge the proposed lease of the school to the State, asserting that once a capital project is approved by the voters and constructed, its use may not be changed as long as there remains an outstanding debt for the structure. The only exceptions plaintiffs would permit to the change of use would be if the change is approved by the voters at a referendum or if the building remains unused. Plaintiffs therefore argue that the board of education has only three alternatives with regard to the use of this still bond-indebted structure: (1) use it as an elementary school, (2) vacate the building and have it remain unused, or (3) get voter approval to change the use. Plaintiffs’ argument would also preclude the use of the school structure as a high school or a junior high school without voter approval.

Defendant has raised two grounds upon which it contends the court should not hear this controversy on the merits. These grounds are lack of standing on the part of plaintiffs to maintain this action and plaintiffs’ failure to exhaust their available administrative remedies.

Plaintiffs Lave standing to maintain the action under the New Jersey courts’ liberal approach to the issue of standing. In Crescent Park Tenants Ass’n v. Realty Equity Corp. of N. Y. Park Ass’n, 58 N. J. 98 (1971), our Supreme Court noted that the courts in New Jersey will not entertain proceedings by plaintiffs who are mere “intermeddlers” or “interlopers” or “strangers” to the dispute. The court went on to say:

Without ever becoming enmeshed in the Federal complexities and technicalities, we have appropriately confined litigation to those situations where the litigant’s concern with the subject matter evidenced a sufficient stake and real adverseness. In the overall we have given due weight to the interests of individual justice, along with the public interest, always bearing in mind that throughout our law we have been sweepingly rejecting procedural frustrations in favor of just and expeditious determinations on the ultimate merits, [at 107, 108; citations omitted]

The record is clear that plaintiffs are not strangers to the dispute nor intermeddlers, but rather they represent their own personal interest and the public interest of the community in the resolution of the dispute over the closing of this school. Plaintiffs have evidenced a sufficient stake and a real adverseness to entitle them to standing in this controversy.

Furthermore, it is not necessary for plaintiffs to exhaust their administrative remedies before a judicial review of this controversy. This court recognizes that the Commissioner of Education has jurisdiction to hear and determine controversies that arise pursuant to his powers under N. J. S. A. 18A:6-9. The court is also mindful of the fact that in most circumstances, before there may be a judicial review of a school board’s decision, there must be an exhaustion of administrative procedures unless the interests of justice require otherwise. See East Brunswick Bd. of Ed. v. East Brunswick Tp. Council, 48 N. J. 94 (1966). However, our Supreme Court stated in Matawan v. Monmouth Cty. Tax Board, 51 N. J. 291 (1968), that when an issue to be decided is solely a question of law, the doctrine of exhaustion of administrative remedies is not applicable. This question was also considered in Durgin v. Brown, 37 N. J. 189 (1962) where the court was called upon to determine the effect of a referendum passed by the voters authorizing bonds for the construction of a new high school. The court found:

The amount of administrative expertise involved must also be considered, but although the view of the state agencies would undoubtedly be desirable, the case ultimately involved a question of law concerning the effect to be accorded to the referendum. In these circumstances we cannot quarrel with the trial court’s exercise of discretion, [at 203]

It is immaterial to a determination of the issue of an exhaustion of administrative remedies whether this ease comes to the court by way of an action in lieu of prerogative writs or otherwise. Therefore, since the controversy before the court involves what is essentially a purely legal question, plaintiffs will not be required to exhaust their administrative remedies.

Plaintiffs seek to have this court restrain the closing of the Washington Elementary School on two grounds: (1) that the bondholders would be adversely affected if the school is no longer operated as an elementary school, and (2) since construction was approved by the voters and underwritten from funds of a resulting authorized multi-purpose bond issue not yet repaid in full, the school will remain a capital debt owed by the taxpayers, while the benefits for which the school was constructed will have been withdrawn without returning to the voters for their approval of the proposed change of use.

It is established law in this State that a local board of education may in the exercise of its discretionary powers discontinue the use of a public school within the boundaries of its jurisdiction. Boult v. Passaic Bd. of Ed., 136 N. J. L. 52.1 (E. & A. 1948); Schults v. Teaneck Bd. of Ed., 86 N. J. Super. 29 (App. Div. 1964), aff’d 45 N. J. 2 (1965). In addition to its right to close a school, the board of education may, pursuant to powers granted by virtue of N. J. S. A. 18A:20-2, sell and lease real estate and personal property, subject to restrictions provided in N. J. S. A. 18A:2A-76.

The first question which then arises is whether N. J. S. A. 18A:24-76 comprises such a restriction since it provides:

No bond resolution * * * shall be modified, altered, revoked, added to or otherwise changed in any respect that would tend to adversely affect the interest or right of the holder of any bond or bonds issued hereunder. This provision shall be deemed to be a contractual obligation and not subject to modification or repeal so long as any of said bonds are issued, outstanding and unmatured. * * *

The court finds that this section is not an operative restriction on the proposed lease of Washington School. N. J. 8. A. 18A:24^76 became effective in 1971, four years after ■the bond referendum was approved, and thus the provisions of this section were not in the contemplation of the bondholders or taxpayers at the time of the referendum and could not give rise to a contractual obligation during the period ■of the bond issue. More importantly, even if N. J. 8. A. 18A:24^76 were given retroactive application, there has been no showing that change in use of the school would adversely affect any of the bondholders monetary interest. In fact, the contrary is true. The school building will no longer be a money-consuming entity but rather will generate funds for the school district by virtue of the lease to the Siate.

Plaintiffs, conceding that the bondholders will not suffer any impaired investment due to the proposed change of use, nevertheless contend that the bondholders will be adversely affected in another manner. It is argued that the holders of the bonds lent their money for a specific purpose, i. e., the Washington Elementary School. It is to be inferred from this that had the bondholders known that the school would not be used as an elementary school, they would have not purchased the bonds. I disagree.

The funds spent for the Washington School were only a portion of the total bond issue and the bondholders could not specify where the proceeds of the bonds were to be used. Moreover, had the bondholders wanted to restrict the future use of the capital projects which they were underwriting, they could have insisted on specific covenants in the bonds restricting the projects to the desired use.

The next question which arises is whether the decision to operate Washington School as an elementary school is binding since it was approved by a referendum. In Durgin v. Brown, 37 N. J. 189 (1962), the court discussed the effect of a binding referendum on subsequent actions of the school board. The court said :

In these circumstances, the Legislature could hardly have meant that notwithstanding the election the board may change its mind with the freedom it would have if its discretion alone were involved. Rather we think the Legislature committed the final judgment to the voters, [at 198]

But the Supreme Court cautioned:

This is not to say that the vote, upon the referendum must be obeyed no matter what may later ensue. We may assume the Legislature intended some residual power to meet the extraordinary or unexpected. One can conceive of supervening events which so nullify the premise upon which the vote was had, that discretion remains in the board to seek relief from the mandate in the public interest, [at 198]

The affidavit of Paul Rossey, Superintendent of the Mill-burn Schools, sets forth the enrollment figures of the Washington School for the years 1972, 1974 and the projected enrollment for the 1975 school year. In 1972, 168 pupils were enrolled. The projected figure for the 1975 school year is 128 students, resulting in a net loss of 47 students or almost a 28% reduction in enrollment. The court finds that such a decrease in enrollment is the typo of a supervening event contemplated by Durgin, thereby relieving the board from further compliance with the referendum. See also State v. Lally, 80 N. J. Super. 502 (Law Div. 1963).

The voters of Millburn have elected the board of education to formulate and execute educational policies for Millburn Township. The members of the board are responsible for the efficient operation of the school system. If the board were so limited in its discretion so as to prevent it from making the best use of the physical assets of the school district, the voters would ultimately be the ones to suffer. Plere the board has determined that the Washington School is not needed as an elementary school. It would be illogical, unreasonable and probably in derogation of the board’s responsibility to the residents of Millburn to allow the school to remain open partially used by a limited number of students or to allow the school to remain vacant when a satisfactory and advantageous lease could be entered into for its public use. When the circumstances upon which a referendum is based have so changed, the board must be able to act, albeit in a reasonable manner, in a way consistent with the public interest.

The township’s schools will be run at a lower cost without any sacrifice in the quality of education. In addition, the lease of the building to the State Department of Education will not only generate enough income to pay the principal and interest on the bonds, but will provide a decent and necessary facility for the education of hearing-handicapped children.

This is not a case where a facility was built with funds from a bond issue for school purposes and then the use changed to a remote use. Rather the change- present here is still an educational use consistent with the purposes for which the school was built. Shuster v. Hardwick Tp. Bd. of Ed., 17 N. J. Super. 357 (App. Div. 1952).

The action of the school board to- discontinue the use of Washington School is a proper function of the school board. This is not to say that the plaintiffs have no recourse. As the court in Lolly said:

Dissatisfaction on the part of the school district members with the exercise of discretion and the formulation of policy on the part of any board member may always be expressed at the polls. [80 N. J. Super. at 512]

The court finds that there has been no abuse of the board’s power in the closing of the Washington School. ETor has this court found the board’s action to be arbitrary, capricious or unreasonable. In fact, the action of the board under the circumstances is in the best interest of the community. Further, the board’s action is not taken in bad faith. The bonds were requested and authorized for a needed purpose. This purpose was fulfilled with the construction and operation for seven years of the Washington School. Changed cirr cumstanees dictate the change of use.

The court, therefore, denies plaintiffs’ motion for summary judgment and grants defendant’s motion to dismiss the complaint. The temporary restraint continued to date with reference to developing a contractual relationship between the township and the State for the Washington School is herewith removed.


source: Caselaw Access Project

author: Marzulli, J. S. C.

license: Public Domain

text:
    STATE OF NEW JERSEY, PLAINTIFF, v. WILLIAM CHRISTOPHER, DEFENDANT.
    Superior Court of New Jersey Law Division
    Decided April 25, 1975.

      Mr. Ralph L. Fusco, Assistant Prosecutor for the State (Mr. Joseph P. Lordi, Prosecutor of Essex County, attorney).

      Mr. John C. Love argued the cause for the Defendant.
   Marzulli, J. S. C.

The motions presented by the State and defendant present issues of first impression for this jurisdiction. The court will first deal with defendant’s motions.

Defendant William Christopher is being tried for the murder of William Malone. A polygraph test was given by the State to its principal witness, Lucille Greiner, with her consent. Defendant requests that the questions, answers and the results of the test be made available to him. Secondly, he wants the results of the polygraph test which indicated the witness’ answers had been evasive to many questions admitted into evidence for the purpose of attacking the credibility of the witness. The. prosecutor chose to reject these results when he called Mrs. Greiner as a State’s witness. Defendant was not provided with the information he seeks prior to trial.

The testimony of Mrs. Greiner was detrimental to defendant’s case. She indicated that she had seen him on the porch of decedent’s property soon after the alleged killing. There can be no question that the law requires the prosecutor to reveal any information which would tend to exculpate a defendant. Brady v. Maryland, 373 U. S. 83, 83 S. Ct. 1194, 10 L. Fd. 2d 215 (1963); State v. Taylor, 49 N. J. 440 (1967); State v. Vigliano, 50 N. J. 51 (1967); State v. Harrison, 119 N. J. Super. 1 (App. Div. 1972). These cases follow the rationale set forth in State v. Vigliano in which the court held:

The primary duty of the State in a criminal prosecution is not to seek convictions; it is to see that justice is done and truth is revealed. [Emphasis supplied]

Under that rationale the prosecutor erred in not making the information available to defendant prior to trial. Therefore, defendant’s motion for discovery regarding the polygraph test is granted.

Defendant’s motion to have the results of the polygraph test admitted into evidence does not involve the issue of the reliability of the polygraph test itself. Our Supreme Court in State v. McDavitt, 62 N. J. 36 (1972), stated:

Polygraph testing has been developed to such a point of reliability that in a criminal case when the State and the defendant enter into a stipulation to have the defendant submit to a polygraph test and have the results introduced into evidence such stipulation should be given effect.

It is, therefore, apparent that in a proper case the results of the polygraph test are admissible for the limited purpose of indicating that the person tested was not telling the truth at the time of the test. It is for the jury to decide what weight and effect such evidence should be given. In the context of the present case the requirements set out in McDavitt, supra, have been met. Defendant requested the results of the test be admitted into evidence. The prosecutor,, by requesting that the witness take the test and consent to its use for any lawful purpose, has impliedly agreed to its use.

One may argue that the prosecutor’s use of a polygraph test did not result in a clear, unequivocal and complete stipulation. However, a reading of United States v. Hart, 344 F. Supp. 522 (D. C. 1972) indicates the contrary. In that instance, a prosecution witness during the course of cross-examination blurted out that he had undergone a lie detector test. The court found that the test requested by the prosecutor had indicated that the witness was lying and that the government was fully aware of this fact before it put the witness on the stand. The court then concluded that having requested that the witness undergo a polygraph test and then having rejected the results of those tests, the prosecutor was obligated to show (1) the prior experience with polygraph tests and with the particular testors which led the Bureau of Narcotics and Dangerous Drugs to have its witness submit to the test; (2) the basis for the subsequent doubts about the validity of polygraph tests which led to the disregard of the results, and (3) any other relevant material concerning the tests which defendants may request from the government on their behalf.

The court further stated that the results of the tests which the Government had the witness take were admissible on behalf of defendant because the Government initially thought they were reliable enough to assist it in evaluating the witness. The court ended with the note that this did not in any way change the general rule and permit a party to offer its own polygraph test into evidence.

The case presently before us falls within the same arena. Therefore, by following the dictates -of Hart, supra, this court would also be following the guidelines set down in State v. McDavitt, supra. Defendant’s motion to have the polygraph conclusions admitted into evidence is granted.

At trial a witness for the State testified that a navy watch cap found at the scene of the homicide had been sent to the State Police to be tested. A report indicated that hair had been found in the watch cap. Copies of the report had not previously been furnished to either the prosecutor or defense counsel.

The prosecutor moved for an order to compel defendant to supply hair samples to compare with the strands of hair found in the watch cap. Defense counsel objected, arguing that discovery comes too late; that there are no eases which indicate hair comparison is scientifically reliable, and that the taking of the hair clipping would violate defendant’s Fifth Amendment privilege against self-incrimination.

A reading of New Jersey Court Rules, R. 3 .T3-3, indicates that the right to discovery is an ongoing one. Under circumstances such as these, where the existence of the hair was not known to either side, the right to discovery would be contemplated under the rules.

Our courts have consistently held that the Fifth Amendment privilege against self-incrimination refers to “testimonial utterances,” communication, and not to evidence of corporal features and other identifying characteristics of a person’s physical or mental conditions. See State v. Alexander, 7 N. J. 585 (1951); State v. Blair, 45 N. J. 43 (1965), in which the court permitted blood samples to be admitted into evidence against the defendant. In State v. Cary, 49 N. J. 343 (1967), the court held that the physical properties of a person’s voice are not testimonial or communicative and, therefore, permitted the State to compel the defendant to submit to a voice test. In State v. McKenna, 94 N. J. Super. 71 (Cty. Ct. 1967), the prosecutor’s office moved for a court order to compel a defendant to submit to a tape recording of his voice. The court, in considering voice as a physical characteristic, stated:

It has long since been established that there are certain tests and examinations which are not violative of the privilege encompassed in the Fifth Amendment, and among these are the taking of fingerprints, photographing, physical examination for identifying characteristics, and voice identification tests.

As such, the court granted the motion.

State v. Carr, 124 N. J. Super. 114 (Law Div. 1973), involved a situation in which the court found that compelling a defendant to furnish the State with handwriting exemplars was not a violation of his Fifth Amendment rights.

The prevailing rationale for the decisions above seems to be best enunciated in United States v. Fiorovanti, 412 F. 2d 407 (1969), in which the United States Court of Appeals for the Third Circuit stated;

The proscription of the Fifth Amendment does not foreclose the the introduction of all testimony of the defendant; the mischief it seeks to avoid is the use of any process which compels a defendant to make testimonial utterances against his will. [Emphasis supplied]

Certainly hair samples can’t be said to be a communication.

Hair samples of defendant shall be taken and submitted to a court-appointed expert, approved by both attorneys, the costs of such expert to be borne by the State.

The final issue to be determined by the court is whether the hair analysis should be admitted into evidence. This will depend upon the determination of the scientific reliability of the analyzation of hair. In State v. Walker, 37 N. J. 208 (1962), the New Jersey Supreme Court expressed its prevailing attitude concerning scientific aids when it stated:

When scientific aids to the discovery of truths achieve a high degree of recognition as to their reliability, we do not hesitate to take judicial notice of this fact and admit evidence obtained through their use when they are administered by qualified persons.

See State v. Dantonio, 18 N. J. 570 (1955); State v. Cerciello, 86 N. J. L. 309 (E. & A. 1914); Cortese v. Cortese, 10 N. J. Super. 152 (App. Div. 1950).

Whether the evidence will be ' admissible will have to await the results of the test, the desire of either party to move the results into evidence and the evidence relating to the scientific reliability of the hair comparison analysis.


author: Joelson, A. J. S. C.

text:
    ESTELLE F. GREENBERG, PLAINTIFF, v. ANTHONY C. MARTINI, CITY CLERK OF THE CITY OF PASSAIC, DEFENDANT.
    Superior Court of New Jersey Law Division
    Decided May 23, 1975.

      Mr. Howard Stern for plaintiff (Messrs. Shavick, Stern, Schotz, Steiger & Croland, of counsel).

      Mr. Joseph F. Scancarella for defendant.

      Mr. Robert Kronman for intervenor Robert Hare.

      Mr. August Michaelis for intervenor Fred Kuren.

      Mr. Walter Tencza for intervenor John Salek.

      Mr. Marvin Stern for intervenor Margie Sender.
   Joelson, A. J. S. C.

This is an action in which plaintiff seeks to require a run-off election for four councilman-at-large positions in the City of Passaic. Plaintiff finished in fifth place in an election for four positions of councilman-at-large. The candidates who finished in the first four places have been permitted to intervene under B. 4:33-1.

There is no dispute as to the facts in the case. The City of Passaic operates under Council-Mayor Plan B, as provided by N. J. 8. A. 40:69A-49. At an election held on May 13, 1975 for the four positions of couneilman-at-large 9,414 persons were recorded as having entered and left the voting booths and 70 as having cast absentee ballots, making a total of 9,484. There were 11 candidates on the ballot. The one who attained the highest number of votes received 3,788, and the second highest received 3,720. All the 11 candidates together received an aggregate vote of 27,948, which figure is obtained by adding all the votes recorded by all the candidates. Other than the 11 candidates contesting for the four positions of councilman-at-large, there were no other candidates on the ballot since no offices other than these four councilman-at-large positions were to be elected.

The city clerk has declared that it is his intention to certify that no run-off election will be required, based upon his finding that four candidates have received a majority under a formula provided by N. J. 8. A. 40:69A-160(d) for cases where no suitable counters have been provided or the tally of the number of voters cannot be determined. It is this determination that is challenged by plaintiff.

N. J. 8. A. 40 ¡69A-160 (d) provides that “if four councilmen at large are to be elected and 2 or more candidates for said office receive a majority of the votes cast, the 4 candidates receiving the greatest number of votes shall be elected.” The statute then goes on to make the following provision, upon which the outcome of this case hinges:

As used in tliis section, the number constituting a majority of the votes cast shall be computed by dividing by 2 the number of voters who cast a vote for at least one candidate for councilman at large, and then adding one. Voting machines to be used in such election shall be equipped, as soon as practicable with one or more counters so connected as to keep a tally of the number of voters who cast votes for one or more of the candidates for councilman at large. Until such time as suitable counters have been so provided, or whenever the tally of the number of voters cannot be determined for any reason, then the number constituting said majority of the votes cast shall be computed by adding all the votes cast for each candidate for said office, dividing that total by twice the number of councilmen at large to be elected and then adding one.

It is ■uncontroverted in this case that the voting machines used in the Passaic election had public counters to record the number of voters who entered the voting booths, and also counters to record the number of votes accorded each candidate. It is also agreed that there were no other special or additional counters. The Passaic; County Superintendent of Elections testified that the voting machines used in the Passaic election were so devised that once a person entered a voting booth and pulled the handle to close the booth’s curtain, the handle could not be moved to open the curtain unless a lever over the name of at least one candidate had been depressed. The Superintendent added, however, that it was possible for a voter to depress such lever over a candidate’s name, restore it to its original position and then move the handle which controlled the curtain for exit.

It is the opinion of the court that even without special or additional counters, one can ascertain the number of votes that would constitute a majority "by dividing by two the number of voters who cast a vote for at least one candidate for councilman at large, and then adding one.” 9,414 persons were recorded on the public counters. The only position for which they could have voted was councilman-at-large since no other position (or question) was on the ballot. Thus, the highest candidate having received only 3,788 votes, neither of the two leading candidates can be said to have garnered a majority of the votes east.

Defendant and intervenors contend, however, that the public counters only disclose how many people entered and left the voting booths, but that we are left in the dark as to how many actually voted for at least one candidate. Accordingly, they urge that the court utilize the alternative method provided by the last sentence of N. J. S. A. 40:69A — 160 quoted above, and compute a majority “by adding all the votes cast for each candidate for said office, dividing that total by twice the number of councilmen at large to be elected and then adding one”, which was the formula employed by the city clerk.

The court is of the opinion that this formula need only be called into use when the presence on the ballot of another office (such as mayor) makes it impossible to ascertain the number of voters who cast a vote for at least one candidate for councilman-at-large. Since the only votes that could possibly be cast were for the office of councilman-at-large, there were “suitable counters” and thus it cannot be held that the tally of the number of voters who cast a vote for at least one candidate cannot be determined.

The contention of defendant and intervenors is that persons may have failed to vote after having entered the voting booths, and have pointed to other elections on public questions in Passaic in 1949 and other municipalities since then where tallies show that a small percentage of persons did so. The court has not studied the prolixity of the public questions involved nor the familiarity of the electorate with the use of voting machines in those instances. However, it seems logical to presume that voters who entered the voting booths voted for at least one candidate before leaving. Why else would they enter? One can always contrive possibilities which fly in the face of logic, but common sense rather then strained legalisms should still be the guide. Absent any proof to the contrary, the court must assume that if indeed any of the persons counted failed to vote, such number would be so minimal as to be insignificant. This is especially so in view of the elaborate procedure described by the superintendent of elections as necessary to effect egress from the booths without actually voting.

In this context, it must be kept in mind that under N. J. 8. A. 40:69A-160(d) two or more candidates must receive a majority if the four candidates receiving the greatest number of votes are to be declared elected. The first two highest candidates received 3,788 and 3,720 votes respectively. Thus, in order for 3,720 to be regarded as a traditional majority, only a mere 7,439 or less voters could have voted for at least one councilman-at-large. Since 9,484 were recorded on the public counters and absentee ballots, we would have to conclude that 2,045 of those on the public counters failed to vote in order to get down to the figure of 7,439 voters. It seems entirely unrealistic that 2,045 people (or more than 20%) who were registered on the public counters would fail to cast a vote for any of the available candidates for couneilman-atlarge. It is the opinion of the court that candidates who have not achieved a majority in the accepted mathematical manner should not be permitted to do so by resorting to a stand-by method through a fanciful supposition of mass non-voting by those recorded on the public counters.

The only reported case which appears to have interpreted the statute in question is Trugman v. BeÁchenstein, 27 N. J. 280 (1958). This ease is not entirely helpful because it involved a situation in which there were other offices than councilman-at-large on the ballot and also because it was decided before the statute was amended to its present form. However, there is some advice of a philosophical nature contained in that opinion which bears repeating here. In ruling in favor of plaintiff, who sought a run-off, the Court said:

It may be added that if a doubt lingered, it should be resolved in favor of plaintiff’s position. The Legislature sought to insure a decisive verdict at the polls. Hence the provision for a run-off. If we were uncertain as to the legislative will, we should lean to a construction which would guarantee that we are not requiring less than the Legislature intended.

That case affirmed an Appellate Court decision, Trugman v. Reichenstein, 50 N. J. Super. 377 (App. Div. 1958), in which the court stated:

From the reading of the entire Faulkner Act it is apparent that one of the ends the Legislature had in mind was to eliminate as far as possible the rule of municipalities by officials elected by a minority vote. . . The clear and definite aim of the statute is to obtain insofar as possible the election of candidates by a majority vote.

This court reads this language to suggest that in the event any doubt should exist, it should be resolved in favor of requiring an actual majority whenever such can reasonably be determined rather than the last resort artificial “majority” provided by statute in such cases where a true majority is not possible to be ascertained. When reasonably determinable, an actual majority is to be preferred to a “majority” which is considerably less than one-half, and which is not a majority at all.

The court finds that no candidate received the majority mandated by N. J. S. A. 40:69A-160 and directs that a runoff be conducted pursuant to N. J. S. A. 40:69A-161.


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

text:
    CHARLES S. LIGE AND GILBERT H. FRANCIS, DIRECTOR, DIVISION ON CIVIL RIGHTS, RESPONDENTS, v. TOWN OF MONTCLAIR; MAYOR AND COMMISSIONERS, APPELLANTS.
    Superior Court of New Jersey Appellate Division
    Argued April 29, 1975
    Decided May 13, 1975.

      Before Judges Halpern, Crahay and Wood.

      Mr. Joseph C. Dickson, Jr. argued the cause for appellants.

      Mr. Raymond A. Noble, Deputy Attorney General, argued the cause for respondent (Mr. William F. Hyland, Attorney General of New Jersey, attorney; Mr. Stephen Skill-man, Assistant Attorney General, of counsel; Mr. Noble on the brief).
   The opinion of the court was delivered by

Halpern, P. J. A. D.

Appellants appeal from the final order of the Division on Civil Rights (Division) which determined that appellants had engaged in discriminatory practices in their past hiring and promoting of policemen and firemen, in violation of N. J. 8. A. 10:5-l et seq., and the remedies imposed in connection therewith. Appellants have conceded that their past hiring and promotional practices violated the statute, so that we are concerned only with whether paragraphs 6 and 11 of the remedies imposed in the final order are valid.

This matter came before the Division by virtue of two amended complaints which were heard together. The first was filed by respondent Charles S. Lige, and the second by the Director of the Division. Lige, a black man, complained that appellants’ hiring procedures were unlawfully discriminatory in that they had a disparate effect on black applicants. The Director’s amended complaint, in addition to Lige’s charges, asserted that appellants’ promotion examination practices and procedures were discriminatory in that they had a disparate effect on minority groups. Neither of the amended complaints charged respondents with intentionally discriminating, rather that the testing processes used resulted in unlawful discrimination. However, the statutes here involved are concerned with the consequences of respondents’ acts, not their intentions.

A brief synopsis of the undisputed proofs will portray the situation then existing in Montclair with respect to the issues at hand. By the 1970 census Montclair had a population of 44,055 persons. There were 11,985 black inhabitants comprising about 27% of the population. The fire department consisted of 86 whites and three blacks, the latter group comprising 3.4% of the department. The police department consisted of 119 men of whom 15 were blacks, or 14.5% of the department. The fire department chief, his seven deputies, nine of ten captains and 12 lieutenants were white. The chief of police', the two deputies, eight of nine captains, six of seven lieutenants and seven of eight sergeants were white. It was stipulated that for the past ten years six vacancies had to be filled annually in the police department and three in the fire department, and the same number of vacancies was estimated for the foreseeable future.

We were advised at oral argument, and it appears to be undisputed, that Montclair is attempting to eliminate its former illegal hiring and promotion practices. We, therefore, turn to the narrow issue remaining, namely, whether the directives contained in paragraphs 6 and 11 of the final order, imposing a quota system for Montclair’s future hirings and promotions in the police and fire departments, were valid.

We are fully cognizant of the difficult issue confronting us and the far-reaching effect an ultimate determination will have on all employers and employees in New Jersey. We are also aware that there is no direct precedent to guide us in New Jersey in construing the power of the Division in ordering this type of remedy under N. J. 8. A. 10:5-l et seq., and that under similar federal and foreign state statutes the decisions are in conflict. The most recent decision of the United States Supreme Court in De Funis v. Odegaard, 416 U. S. 312, 94 S. Ct. 1704, 40 L. Ed. 2d 164 (1974), failed to pass on the issues there presented which, although in a different context are, to an extent, analogous to those confronting us herein. However, Justice Douglas’ dissenting opinion points up the complexity and far-reaching implications of the problem.

We start with the truism that the Eederal and New Jersey State Constitutions proscribe invidious discrimination in hiring because of marital status, sex, race, color or creed. New Jersey’s legislative intent to this end is clearly set forth in a variety of statutes proscribing discrimination in all forms, and they must be construed to give the Division broad powers to insure and protect those eonstitutional and legislative mandates. See Fraser v. Robin Dee Day Camp, 44 N. J. 480 (1965). But those powers must not be exercised in such a way as to discriminate against others.

The temptation is great to attempt to right the wrongs against many minorities (black, white, yellow, brown and red) which have unfortunately existed for generations, by letting a small number of the minority groups now obtain what others similarly situated will be denied. Once a quota system is imposed, as was done here, such numerical criteria will unquestionably result in the kind of invidious discrimination and injustice the quota system was designed to prevent.

The remedy here imposed may enable a few qualified members of a minority group to reach a point in numbers which the Division believes to be numerically correct based on a formula which uses percentages of minorities to population. But what minorities are we talking about? We pride ourselves as a nation on the “mix” of our people wherein history has proven our strength lies. But that “mix” is comprised not only of blacks, but of Poles, Jews, Scandinavians, Italians, Puerto Bicans, Hungarians, Cubans, Germans and others too numerous to list. It is one thing for the Division to find that a given person has been discriminated against and give him relief. See Zahorian v. Russell Fitt Real Estate Agency, 62 N. J. 399 (1973). But when it fashions a remedy on a class quota basis, it leads to insoluble problems and piles discrimination on top of discrimination.

Our ultimate goal should be to eliminate all invidious discrimination based on sex, race, color or creed. Everyone should have an equal opportunity to obtain the job he or she seeks based on qualification for that job, because no other standard can survive in a free society. Courts should hesitate, in a given case, to rectify the wrongs of the past by a method of racial quotas which in itself invidiously discriminates against others — be they of the majority or minority. It would defeat the very purpose of N. J. 8. A. 10: 5-1 et seq., for which the Division was created, namely, to safeguard all individuals from invidious discrimination because of sex, race, color or creed. Loving v. Virginia, 388 U. S. 1, 10, 87 S. Ct. 1817, 18 L. Ed. 2d 1010 (1967); Harper v. Virginia Bd. of Elections, 383 U. S. 663, 668, 86 S. Ct. 1079, 16 L. Ed. 2d 169 (1966).

We therefore hold that the Division, in fashioning the remedies contained in paragraphs 6 and 11 of its final order, has exceeded its statutory power and has violated the Federal and State Constitutions, and, therefore, said paragraphs are stricken from the final order. The matter is remanded to the Division with directions to examine appellants’ present hiring and promotion practices in the police and fire departments to the end that appellants be compelled to remove all artificial, arbitrary and unnecessary barriers to employment when such barriers operate invidiously to discriminate on the basis of racial or other impermissible classification. The hiring procedures must be job-oriented and untainted by racial or cultural discrimination. Griggs v. Duke Power Co., 401 U. S. 424, 91 S. Ct. 849, 28 L. Ed. 2d 158 (1971).

The final order is modified in accordance herewith. We do not retain jurisdiction.

       6. Future appointments to the Montclair Fire Department shall be conducted on the following basis: One (1) qualified minority applieant shall be selected for every one (1) qualified white applicant until the total number of minority officers on the Fire Department equals at least fifteen (15) persons.
      Initial selection of minority candidates shall be made from the pool of qualified minority applicants which result from the re-evaluation process as set forth herein in paragraph 4 and 5 and shall continue until such pool is exhausted.
      11. The Black applicants who are deemed qualified by this reevaluation shall bo so notified in writing. Fuutre promotions in the Montclair Police Department shall be made on the following basis.
      One qualified Black applicant shall be promoted for every one qualified white applicant until 50% of those minority applicants deemed qualified by the re-evaluation have been promoted.

        e.g. N. J. S. A. 10:1-1 et seq.; N. J. S. A. 10:5-1 et seq.; N. J. S. A. 18A :38-5.1; N. J. S. A. 17:34-44.


author: Allcokn, J. A. D.

text:
    STATE OF NEW JERSEY, BY THE COMMISSIONER OF TRANSPORTATION, PLAINTIFF-RESPONDENT, v. MARKET ASSOCIATES, A PARTNERSHIP OF NEW JERSEY, AND WILDLIFE PRESERVES, INC., A NEW JERSEY CORPORATION, DEFENDANTS-APPELLANTS.
    Superior Court of New Jersey Appellate Division
    Argued April 22, 1975
    Decided May 13, 1975.

      Before Judges Kolovsky, Lynch and Allcorn.

      Mr. John N. Malyska argued the cause for the appellants (Messrs. Meyner, Landis & Verdon, attorneys).

      Mr. Stephen A. Herman, Deputy Attorney General, argued the cause for the respondent (Mr. William F. Hyland, Attorney General, attorney; Mr. Stephen Skillman, Assistant Attorney General, of counsel).
   The opinion of the court was delivered by

Allcokn, J. A. D.

In the unusual, almost unique, circumstances present in this case, defendant landowners were entitled to show and should be permitted to introduce evidence that, on the date of the taking, a willing buyer and a willing seller would have recognized the reasonable probability in the near future of a change in the local zoning ordinance affecting the use of the property taken, and the influence of that factor on the market value as of the date of the taking. State v. Gorga, 26 N. J. 113 (1958).

Given the history through 1963 of the municipal zoning regulations affecting the use of all or the major portion of the lands condemned and the judicial treatment of those regulations (see Morris County Land, etc. v. Parsippany-Troy Hills Tp., 40 N. J. 539 (1963), and Jersey Central P. & L. Co. v. Morris County Land, etc., 91 N. J. Super. 40 (App. Div. 1966)), the likelihood that the amended regulations affecting the use of these premises, adopted in 1968, would be declared invalid in the litigation challenging their validity (pending at the time of the filing of the condemnation proceeding), was exceedingly strong. This likelihood, in turn, rendered it at least reasonably probable that there would be a change of those zoning regulations in the near future. Consequently, the determination of the trial judge that, as of the date of taking, there was no reasonable probability of a zone change in the near future, was in error and must be reversed, and the canse remanded for trial.

On the trial both sides will be entitled to introduce evidence (1) as to the market value of the land on the taking date as restricted by the controlling use regulations contained in the 1968 zoning ordinance, and (2) as to the premium, if any, that a buyer would pay and a seller accept in light of the reasonable probability of a zoning change in the near future. As the court observed in Gorga:

The important caveat is that the true issue is not the value of the property for the use which would he permitted if the amendment were adopted. Zoning amendments are not routinely made or granted. A purchaser in a voluntary transaction would rarely pay the price the property would be worth if the amendment were an accomplished fact. No matter how probable an amendment may seem, an element of uncertainty remains and has its impact upon the selling price. At most a buyer would pay a premium for that probability in addition to what the property is worth under the restrictions of the existing ordinance. In permitting proof of a probable amendment, the law merely seeks to recognize a fact, if it does exist. In short if the parties to a voluntary transaction would as of the date of taking give recognition to the probability of a zoning amendment in agreeing upon the value, the law will recognize the truth. [26 N. J. at 117]

Nevertheless, evidence as to the market value of the property for the uses which would be permitted if the zoning change were in fact adopted or which would be permitted were the property to remain nnzoned following the likely judicial declaration of invalidity of the regulations in effect as of the date of taking, may be submitted. But such testimony may be received only for the limited purpose of explanation by the expert of his opinion of the then market value as affected by the reasonable probability of a zone change in the near future, and the jury should be instructed accordingly. Id. 26 N. J. at 117-118.

The circumstance that this court in 1974 did in fact declare invalid the 1968 zoning regulations governing the use of this property (Wildlife Preserves, Inc. v. Parsippany-Troy Hills Tp.), and that thereafter the Supreme Court denied certification (65 N. J. 294 (1974)), is of no significance on the issue of value in this litigation; nor does it sanction proof by the landowner of the market value of the property on the basis of its highest and best use as though it were unregulated or unzoned at the time of the taking. The value must be determined in the light of the attendant facts and circumstances as of the date of the taking — including the existence of the uninvalidated zoning regulations, and the reasonable probability of their being changed by reason of their likely invalidity. To the extent that this holding is in conflict with the principles set forth in Jersey Central P. & L. Co. v. Morris County Land, etc., 91 N. J. Super. 40 (App. Div. 1966), we decline to follow them for the foregoing reasons.

We find no error in the denial by the trial judge of defendants’ request to stay the trial in the Law Division pending disposition of the proceedings challenging the validity of the 1968 zoning regulations.

Accordingly, the judgment is reversed, and the cause is remanded to the Law Division for trial.


author: Per Curiam.

text:
    STATE OF NEW JERSEY, BY THE COMMISSIONER OF TRANSPORTATION, PLAINTIFF-RESPONDENT, v. WILDLIFE PRESERVES, INC., A CORPORATION OF NEW JERSEY, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued April 22, 1975
    Decided May 13, 1975.

      Before Judges Kolovsky, Lynch and Allcorn.
    Mr. John N. Malyska argued the cause for the appellant (Messrs. Meyner, Landis & Verdon, attorneys).

      Mr. Stephen A. Herman, Deputy Attorney General, argued the cause for the respondent (Mr. William F. Hyland, Attorney General, attorney; Mr. Stephen Skillman, Assistant Attorney General, of counsel).
   Per Curiam.

This is a companion case to State v. Market Associates and Wildlife Preserves, Inc., 134 N. J. Super. 282, decided by this court today. Although the issues are substantially the same, we reach a contrary result.

In the present cause the date of taking by the State was March 23, 1967. At that date, the zoning regulations affecting the use of the property taken were those that had been adopted by the municipality in 1964. Despite the fact that more than two years had elapsed between the adoption of the regulations in 1964 and the date of the taking, defendant had not challenged their validity nor, so far as the record discloses, did any other person similarly affected attack the regulations — all, including defendant, seemingly content with the regulations. Even following service of the complaint in this condemnation proceeding defendant took no action whatever to obtain a judicial review of the regulations. Indeed, it was not until August 12, 1968 — a month and a half after those regulations had been amended by the municipality, and more than 16 months subsequent to the taking date — that the defendant initiated any challenge to the validity of the controlling regulations.

Thus, as of the date of this taking the likelihood that the controlling use regulations would be declared invalid was exceedingly remote, at best — in turn rendering the prospect of a change in the use regulations by reason of a declaration of invalidity most dubious. Absent a reasonable probability on the date of the taking of a change in the zoning ordinance in the near future, in the very nature of things the owner’s proof as to market value necessarily is restricted to the highest and best use of the land as permitted by the local use regulations in effect at the taking date. State v. Gorga, 26 N. J. 113 (1958).

Moreover, throughout the trial it was the undeviating position of the landowner that, by reason of its peculiar physical characteristics, the land taken was not susceptible to the construction of buildings on it, but rather “has to be used in its natural state”; and, therefore, that the highest and best use of the land “is as an educational facility, also to foster conservation and also for some form of recreation and research in connection with conservation.” In these circumstances, the landowner may not on this appeal urge that the land was susceptible of a different (and, presumably, more valuable) use.

Accordingly, the judgment is affirmed.


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

text:
    JOHN RETZ, PLAINTIFF-APPELLANT, v. MAYOR AND COUNCIL OF THE TOWNSHIP OF SADDLE BROOK, BERGEN COUNTY AND RUTH McGINNIS, TOWNSHIP CLERK, SADDLE BROOK, NEW JERSEY, DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued April 8, 1975
    Limited Remand Directed April 14, 1975
    Additional Memoranda Submitted After Remand April 25, 1975
    Decided May 15, 1975.

      Before Judges Carton, Crane and Kole.

      Mr. Dennis P. LaHiff argued the cause for appellant (Messrs. Messineo & Messineo, attorneys).

      Mr. William D. Gorgone argued the cause for respondents.
   The opinion of the court was delivered by

Carton, P. J. A. D.

Plaintiff brought this action as a taxpayer to compel defendant municipal officials to conduct a referendum on a bond ordinance and to restrain the award of contracts to make the improvements authorized by the ordinance. The trial judge granted summary judgment in favor of defendants and plaintiff appealed. This court denied his motion for a stay of judgment. However, in view of the emergent situation and the nature of the issue involved, we accelerated determination of the appeal.

The challenged bond ordinance is a multi-purpose one, authorizing several improvements, including the construction of a new municipal complex to house administrative offices, the police department and the local ambulance corps; construction of an addition to a fire house; the making of various road improvements, and the purchase of equipment. 'There is no claim that the ordinance was improperly adopted.

Einal publication of the ordinance occurred on September 19, 1974. However, on September 27, eight days after final publication, a petition designated as a “taxpayers’ petition,” protesting adoption of the ordinance, was filed with the township clerk.

Plaintiff, in his complaint, designates himself as a “taxpayer” and claims that the petition contained 989 names, including his own, and that such signatures represent ownership of property having an assessed value of $19,759,960. The petition contained no reference to the statute pursuant to which it was filed, or affidavits from petition circulators attesting to the authenticity of signatures, and no specific request for a referendum beyond the statement of protest.

On October 10 defendant township clerk certified to the township council that the petition was invalid and notified plaintiff of her finding. Also on October 10, at a public meeting, the mayor and council, after receiving opinions that the petition was invalid, awarded contracts to low bidders on three of the projects. We are informed that work was begun under at least one of these contracts, but it has been discontinued pending the outcome of this litigation. In this connection we note that plaintiff did not seek certification of our refusal to grant a stay of the judgment.

The trial judge, in granting summary judgment for defendants, found that plaintiff lacked standing to prosecute the complaint for the reason that he owned no real property in the municipality. (It seems to be conceded that Retz had in 1963 conveyed his property to C. S. R. Realty Corporation of which he claimed to be a major stockholder.) The judge further found that the protest petition failed to satisfy the provisions of the Optional Charter Law (Faulkner Act), N. J. 8. A. 40:69A-185 et seq., in various particulars. The trial judge also found that plaintiff’s claim as to the amount of tax ratables represented on the petition should not prevail against the clerk’s finding that the amount was insufficient to meet the Home Rule referendum provision (N. J. 8. A. 40:49-27), given Retz’ concession that he himself had not made determination of the assessed valuation of the properties owned by signatories of the petition. The judge further found that the clerk’s certificate of insufficiency was conclusive as a matter of law under N. J. 8. A. 40 :49-27. Having thus resolved the controlling issues in favor of defendants, the judge declined to consider whether plaintiff might also be precluded from any relief by reason of the Local Bond Law, on the ground that N. J. 8. A. 40A:2-18 bars any right of referendum on a bonding ordinance.

Plaintiff concedes that the petition does not satisfy the requirements of the Faulkner Act but contends that it is the Home Rule Act which governs and that its requirements are satisfied. N. J. 8. A. 40:49-27 provides:

Any ordinance authorizing the incurring oí any indebtedness, except ior current expenses shall become operative ten days after the publication thereof after its final passage, unless within said ten days a protest against the incurring of such indebtedness shall be filed in the office of the municipal clerk signed by taxpayers representing ten per cent in amount of the assessed valuation of such municipality, whose names appear on the last preceding assessment roll thereof, in which case such ordinance shall remain inoperative until a proposition for the ratification thereof shall be adopted, at an election to be held for that purpose, by a majority of the qualified voters of the municipality voting on the proposition, subject to the provisions of sections 40:49-10 to 40:49-12 of this title.
The certificate of the clerk of the municipality filed in this office as to the filing or sufficiency of any protest shall be. conclusive for the purposes of this section.
$ $ $ $ $ H* *

.According to the affidavit of Saddle River’s tax collector, the total assessed ratables, as of October 8, 1974, amounted to $158,867,355. On this basis the petition must represent $15,886,736. Plaintiff alleges that the signatures on the petition represent $19,759,960, while the clerk’s countering affidavit asserts that the petition represents only $8,243,780 of assessed valuations.

The precise basis of the discrepancy in the calculations between defendants and plaintiff as to the amount of ratables represented by the petition did not clearly appear from the record on summary judgment. Consequently, because resolution of this issue might well render determination of the numerous other legal issues unnecessary, we remanded the matter to the trial court for an expedited hearing and limited findings on this question.

After a full hearing the trial judge concluded that the petition did not contain the signatures of taxpayers representing 10% in amount of the assessed valuation in the township whose names appeared on the last preceding assessment roll of that municipality. The judge made the following specific findings:

This court finds as a fact based upon the evidence presented and under the rules of law applied, that the amount of assessed valuation represented by the petition necessary to equal 10% is: (a) $15,888,735.50; (b) that the petitions represent $11,298,355.00 of assessed value; (c) that the petitions are, therefore, short of 10% by $4,816,855.50.

We conclude that the trial judge correctly determined that the petition failed to meet the statutory requirement. His determination that the petition fell short of the statutory requirement by $4,816,855.50 turns, in our view, on its resolution of a dispute between the parties as to whether, in the ease of property shown on the tax rolls as owned by tenancy by the entirety, the signature of one spouse on the petition should be counted for the full value of the property so owned, half of that value, or none at all. The judge upheld the township clerk’s decision which allowed one-half such valuation if only one spouse had signed. We are of the opinion that this ruling was a fair and proper one under the circumstances and comports with the legislative intention.

There is no presumption that a husband or wife has the authority to act on behalf of the other. See Sladkin v. Riby, 103 N. J. L. 449 (E. & A. 1927); Sternberger v. Hurtzig, 36 N. J. Eq. 375 (Ch. 1883), and O'Carroll v. Stark, 85 N. J. L. 438 (Sup. Ct. 1914). See also, 41 Am. Jur. 2d, Husband and Wife, § 233 at 197.

Under the general law of principal and agent, it has been the rule that the agency of a wife to act on behalf of a husband, or vice versa, must derive from a clearly expressed authority from one to the other. There is no original or inherent power on the part of one spouse to act for the other. The authority must arise from express appointment. The only exception appears to be with respect to necessities.

Thus, it is well established that where property is held by tenancy by the entirety one spouse cannot sign a deed of conveyance without the other’s signature. Similarly, neither party has power to bind the interest of the other on a mortgage.

We see no reason why a different result should pertain in deciding whether one tenant by the entirety may sign a taxpayers’ petition as representing the total ownership interest of the property. One tenant by the entirety may not be aware that the other has signed, or may actually be opposed to the object of the petition.

Indeed, a strict application of the law of tenancy by the entirety might require the signatures of both spouses to commit the property or, in statutory terms, to represent the value of the property on the petition. But, as the referendum requirements of N. J. 8. A. 40:49-27 raise questions of both property and voting rights, we conclude that a narrow reliance on property law principles would be contrary to the legislative purpose. The archaic fiction of “the oneness of husband and wife” is viewed unfavorably in this State and deserves no extension into this sphere. See Ft. Lee S. & L. Ass’n v. LiButti, 106 N. J. Super. 211; dissent at 216 (App. Div. 1969), rev’d on the dissent below 55 N. J. 532 (1970). Each taxpayer has a right to vote and, as a taxpayer, should have a right to sign or not sign and have the signature reflect what is, as a practical matter, his or her one-half interest in the property.

Under the statute only those whose names appear on the most recent municipal tax assessment roll are eligible to sign the petition. Where the property is held in a tenancy by the entirety, in contrast to where a spouse holds only a dower or curtesy interest, the names of both spouses are carried on the assessment roll. The Legislature clearly intended that the full value of a property could be represented on a petition only by the signatures of both tenants by the entirety. In this case plaintiff seeks credit for the full value of properties where only one spouse has signed the petition. But there is nothing in the record to suggest that any of the nonsigning parties, in fact or by implication authorized their respective spouses to speak for them.

In view of our conclusion that the petition failed to satisfy the requirements of N. J. 8. A. 40:49-27, we find it unnecessary to decide other challenges made to the validity of the petition grounded on defendants’ contentions, among others, that (1) plaintiff was not a taxpayer in the municipality; (2) the petition was deficient under the Faulkner Act because it did not contain the signatures of the requisite 25% of the registered voters and that the provisions of the Faulkner Act rather than those of the Home Rule Act were applicable; (3) the clerk’s certificate as to the insufficiency of the petition was conclusive as a matter of law under N. J. 8. A. 40:49-27, and (4) in any event, plaintiff was precluded from relief because the Local Bond Law (V. J. 8. A. 40A:2— 18) bars any referendum on bonding ordinances.

Affirmed. No costs.


text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. JOHN G. KALAFAT, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Submitted April 22, 1975
    Decided May 22, 1975.

      Before Judges Matthews, Fritz and Botter.

      Messrs. Lewis, Siegel and Wood, attorneys for appellant.

      Mr. C. Judson Hamlin, Middlesex County Prosecutor, attorney for respondent (Mr. Richard A. Feldman, Assistant Prosecutor, on the brief).
   Per Curiam.

This is an appeal from a judgment of the Middlesex County Court which found the defendant guilty of speeding at the rate of 66 miles an hour in a 55-mile an hour zone, after a trial de novo. The appeal was from a municipal court of Cranbury Township, Middlesex County.

Defendant challenges the County Court judge’s ruling that admitted into evidence a certificate issued by the then Deputy Superintendent of the Division of Weights and Measures, Department of Law and Public Safety, describing and verifying a measured one-half mile course in Hightstown, on the ground that it does not come within Evid. R. 63 (13) exception to the exclusion of hearsay evidence established in Evid. R. 63. The State contends that the certificate bears an overwhelming indicia of trustworthiness and thus is entitled to classification as a business record under Evid. R. 63(13). See Mahoney v. Minsky, 39 N. J. 208, 218 (1963); State v. McGeary, 129 N. J. Super. 219, 226 (App. Div. 1974).

The facts are undisputed. On October 23, 1973 Trooper Matusiewicz of the New Jersey State Police issued a summons to defendant charging him with speeding, in violation of N. J. S. A. 39:4-98. He was found guilty of the offense in the Cranbury Township Municipal Court and he appealed to the Middlesex County Court. At the trial de novo the trial judge accepted Trooper Matusiewicz as being qualified to testify regarding his use of Vasear equipment. Vascar had been employed by the trooper in apprehending defendant.

According to Matusiewicz, he had calibrated his Yascar equipment twice on October 23, 1974 and at least once on October 24. He testified that he checked the accuracy of the equipment’s measurement of distance by the use of a pair of markers which had been certified by the Division of Weights and Measures. Defense counsel objected to the admission into evidence of the certificate of accuracy of marked distance because the individual who had measured the distance did not testify as to the mode and accuracy of the measuring procedure. The County Court judge then offered to permit defense counsel to measure the course himself, but that offer was declined. Defendant’s objection was overruled. Thereafter, the trooper proceeded to testify as to the calibration of his equipment, how he employed it on the day in question and the result of the readout showing defendant to be travelling at a speed of 66 miles per hour.

The conviction followed.

We agree that the admission of a document as a business record requires that a foundation be laid to insure that the record was made in the ordinary course of business shortly after the transaction, by one who had firsthand knowledge of the facts recorded. See Evid. B. 63(13); State v. Conners, 129 N. J. Super. 476, 485 (App. Div. 1974); McCormick, Evidence, 598-605 (1954)., And while we recognize that the State predicated admission of the certificate under Evid; B. 63(13), we find no reason to require that that rule served as the basis for admitting the certificate into evidence. See Isko v. Livingston Tp. Planning Bd., 51 N. J. 162, 175 (1968).

Under Evid. R. 63 (15) a statement by a public official within the scope of his duty,' as to a condition or event is admissible :

Subject to Rule 64 * * * if in the form of (a) a written statement of an act done, or an act, condition or event observed by a public official if it was within the scope of his duty either to perform the act reported or to observe the act, condition or event reported and to make the written statement, or (b) statistical findings made by a public official whose duty it was to investigate the facts concerning the act, condition or event and to make statistical findings.

The absence of an explicit requirement for a foundation in Evid. R. 63(15), as contrasted with such an explicit requirement in Evid. R. 63(13), indicates that neither the reporter nor custodian need appear to provide a foundation for a public record admitted under Evid. R. 63(15). See State v. McGeary, above, 129 N. J. Super. at 228-229. The inherent trustworthiness of a report of an unchanging fact by a disinterested public official overcomes the usual barrier to its admissibility because of hearsay.

The Superintendent of Weights and Measures has the duty of providing a standard measure and of certifying approved measures, N. J. S'. A. 51 :l-55, 51 :l-58, 52:17B-23; accordingly, a certificate of accuracy issued by him constitutes a statement of an act observed by a public official within the scope of his duty. As such it is admissible without a foundation under Evid. R. 63(15)

The certificate in question is also admissible under N. J. S. A. 51:1-102 as presumptively authentic and correct. Hence no foundation is necessary to show that the method of certification was correct.

The judgment of the County Court is affirmed.


text:
    CRITERION INSURANCE COMPANY, PLAINTIFF-RESPONDENT, v. MICHAEL KUPIEC, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Submitted May 13, 1975
    Decided May 27, 1975.

      Before Judges Carton, Crane and Kole.

      Messrs. Casby and, Garrigle, attorneys for appellant (Mr. William A. Garrigle of counsel and on the brief).

      Messrs. Orlando, Yampell, Forgash and Slimm, attorneys for respondent (Mr. Michael A. Orlando on the brief).
   Per Curiam.

Plaintiff Criterion Insurance Company (Criterion) is the insurance carrier for Polanski, the owner of an automobile operated by defendant Kupiee that was involved in an accident. Persons claiming to have sustained damages as a result thereof instituted actions therefor. Criterion at first denied coverage on the ground that Kupiee did not have the permission of the insured to drive, and filed a declaratory judgment action for the purpose of an adjudication of noncoverage. That action was dismissed by stipulation after Criterion agreed to pay $29,000 into court and in effect admitted coverage, according to it, in order to protect the named insured.

Meanwhile, however, after the disclaimer of coverage, the Unsatisfied Claim and Judgment Fund (the Fund) assigned the General Adjustment Bureau (General) to investigate and defend the claims against Kupiec under N. J. S. A. 39 :6-66. Legal fees and other expenses were incurred by General in that endeavor and attorneys assigned by General appeared of record on behalf of Kupiec. After such expenses were incurred Criterion instituted the present action for an order permitting it to deposit the $29,000 into court, restraining the Law Division negligence actions and ordering a refund to it of any surplus money remaining after all claims were paid.

By way of counterclaim Kupiec, through General’s attorneys, sought to recover from Criteron counsel fees paid to Kupiec’s private attorney before the Eund entered the litigation, as well as legal fees and investigative costs paid by General in connection with the litigation.

A motion for summary judgment to compel Criterion to pay counsel fees and investigation costs to the Eund (i. e., General) under B. 4:42-9 (a) (6) was denied by the trial judge. This appeal followed.

The judge held that such fees and costs may not be recovered by the Eund or its assigned carrier from the insurance company that initially denied coverage, notwithstanding Gerhardt v. Continental Ins. Co., 48 N. J. 291 (1966), and Unsatisfied Claim and Judgment Fund Board v. Concord Ins. Co., 110 N. J. Super. 191 (Law Div. 1971). The latter case held that the Eund could institute a declaratory judgment action against an insurance carrier that disclaimed coverage to its insured, thereby relegating him to a defense by the Fund.

The court below relied on N. J. S. A. 39:6-66(e), which provides that the Eund may assign its cases to insurers in proportion to their premium writings, and that each such insurer “shall at its own expense” make the appropriate investigation in connection with, and conduct the defense of, the claim assigned to it, all on behalf of the Eund. The court concluded that the legislative intent was to have the insurance carriers of this State bear the costs of the defense of assigned cases as a quid pro quo for the conduct of business within the State. It found that the statutory provision that cases be assigned in proportion to the amount of premiums collected in this State supported the legislative purpose to have all insurance carriers in the State bear the burden of “this unpleasant task in an equitable manner.”

We have concluded that the court below took too restrictive a view of the statute. We see no necessary relationship between the provisions relied on by the court and the issue of who should bear the expense of defending a case with respect to which an insurance carrier disclaims liability, or a case involving the very issue of coverage itself. The provisions obviously did not contemplate the situation where an insurer denies coverage.

Where there is a disclaimer by an insurance carrier, the Eund has the right to institute a declaratory judgment action against the carrier to determine coverage, so that (1) it need not saddle an assigned carrier with the costs of investigation and defense, and (2) it may endeavor to protect the integrity of the Fund against claims covered by insurance. See Unsatisfied Claim and Judgment Fund Board v. Concord Ins. Co., supra. But that is not its sole remedy. See Burd v. Sussex Mut. Ins. Co., 56 N. J. 383, 391 (1970). It may assign the defense to a carrier in accordance with the statute and, in the first instance, that carrier may be required to investigate and defend at its own cost. Nevertheless, if at any point the issue of insurance coverage arises and it is determined judicially that defendant is in fact covered by another insurance carrier, or the latter agrees to such coverage for settlement purposes, the cost burden shifts. In such event the disclaiming carrier is required to pay the investigatory and legal expenses incurred by the Eund-assigned carrier in connection with the claim assigned to it.

We do not agree with Criterion that this interpretation of the statute would discourage insurance carriers who dispute coverage from settling the coverage question. Rather, in our view it would prevent the arbitrary denial of coverage by insurance carriers and encourage such settlements, at least in cases where the coverage question is in doubt. In short, we believe that it would further the legislative design to preserve the Eund by precluding inappropriate disclaimers by carriers simply because the cost of investigating and defending the claim is being borne by the carrier assigned by the Eund.

Since, as we have stated, the Legislature did not contemplate the situation in which a carrier might deny coverage, the provisions dealing with the assignment of judgments to the Eund and the subrogation of the Eund to the judgment creditor’s cause of action where it pays a judgment, N. J. 8. A. 39:6-77 and 39 :6-88, have no relevance to the issue at hand. The amount that may be recovered or retained by the Eund in connection with any such cause of action does not include the legal or other expenses incurred by the assigned carrier in defending the claim upon which such judgment is predicated.

We hold, therefore, that the Eund may recover counsel fees and investigative costs in connection with all of the litigation here involved. Of course, the ultimate beneficiary of that recovery will be the assigned carrier, General.

Reversed and remanded for proceedings not inconsistent with this opinion.

      No question is raised on this appeal as to Kupiec’s right to recover the fees he paid his personal counsel. The issue framed here and below relates only to the Fund’s right to collect legal fees and investigation costs.


author: Wood, J. S. C.,

text:
    IN RE: ESTATE OF EDWARD WIDENMEYER, DECEASED.
    Superior Court of New Jersey Appellate Division
    Argued May 13, 1975
    Decided May 28, 1975.

      Before Judges Halpern, Crahay and Wood.

      Mr. Joseph J. MacDonald argued the cause for appellant Sylvia Rohr Casale, executrix of the Estate of Edward Widenmeyer, deceased (Messrs. Harrison, Hartman & MacDonald, attorneys; Mr. MacDonald of counsel).

      Mr. Harry Haushaller, Deputy Attorney General, argued the cause for respondent Transfer Inheritance Tax Bureau (Mr. William F. Hyland,, Attorney General of New Jersey, attorney; Mr. Richard M. Conley, Deputy Attorney General, of counsel; Mr. Haushalter on the brief).
   The opinion of the court was delivered by

Wood, J. S. C.,

Temporarily Assigned. This is an appeal by Sylvia Bohr Casale, executrix of the estate of Edward Widenmeyer, deceased, from a determination of the Trans-ire Inheritance Tax Bureau which denied to appellant the status of a "Class A” beneficiary under N. J. S. A. 54:34-2 (prescribing rates of taxation) on the ground that she was not the wife of decedent and was therefore classified as a “Class D” beneficiary, resulting in the taxation of property passing to her under the will at a higher rate. The Bureau also disallowed the inclusion of the value of part of decedent’s real estate in the computation of the base from which the executrix’ commission is computed.

The facts are substantially undisputed. Sylvia Bohr Casale married one Guido Casale in a civil ceremony in New York on July 14, 1923. A daughter, Jeannette (Now Mrs. Veraldo), was born in 1924. A son, Stephen, was born in 1928. The family moved to Montvale in 1930. In 1932 Casale left his family and moved to Brooklyn, New York, where he took up residence with another woman. Although never served with notice of any divorce action, appellant “assumed” that Casale had obtained a divorce' and remarried.

Sometime between 1935 and 1937 appellant began living with decedent Edward Widenmeyer. He moved into her house and they continued cohabitation until his death. They held themselves out as husband and wife, and were so considered by their neighbors and friends and by appellant’s children. They were never ceremonially married. In 1950, being uncertain whether her marriage to Casale had been dissolved, appellant instituted divorce proceedings, obtaining personal service on Casale in this State. Final judgment of divorce was entered in the Superior Court on August 17, 1950.

In 1939, by N. J. S. A. 37:1-10, common law marriages were abolished in New Jersey, and all such marriages since that time have been and are illegal and void. Nevertheless, appellant claims that she was the wife of decedent by virtue of a valid, common law marriage. She contends that when she and decedent commenced cohabitation prior to 1939 they did so with the bona fide intent of becoming and remaining husband and wife and that, but for the impediment of her prior existing marriage, they would have had a valid common law marriage. She contends, further, that upon her obtaining judgment of divorce, their intent "related back” to the commencement of their cohabitation, resulting in a valid common law marriage then existing between her and decedent. We cannot agree.

It is clear that when appellant and decedent began living together she knew of the impediment which existed in connection with her undissolved marriage to Casale. Had that impediment been removed prior to the enactment of N. J. S. A. 37:1-10, or had the impediment been one of which the parties were unaware, there would have resulted a common law marriage. Dacunzo v. Edgye, 19 N. J. 443 (1955). In this ease, however, the impediment was known to the parties. Hence they could not validly have intended or undertaken a common law marriage prior to 1939. When the impediment was at last removed, the barrier of the statute had been raised. Therefore, there was never a time when appellant and decedent could have intended or joined in a valid common law marriage.

Appellant contends in the alternative that, even if not the common law wife, she was the de facto■ wife of decedent and entitled to recognition as such and to the status of a “Class A” beneficiary. Parkinson v. J. & S. Tool Co., 64 N. J. 159 (1974). The contention is without merit. Parldnson dealt with a woman who was living with a man in what they both thought was a legal relationship, and who sued to recover death benefits under the Workmen’s Compensation Act. The Supreme Court held that, for purposes of the Workmen’s Compensation Act, she was considered decedent’s legal wife and it allowed compensation. The court, however, carefully limited its holding to the factual situation before it. That situation is not at all analogous to the present case. Not only is the element of good faith in the relationship lacking, but the broad protective policies of the Workmen’s Compensation Act are not subserved in this situation where what is sought is simply a lower rate of taxation of an inheritance transfer.

Eiually, appellant contends that the Bureau erred in disallowing as a deduction commissions which had been computed on approximately $90,000 worth of realty which was devised to appellant’s daughter. Under N. J. S. A. 54:50-1 and the Administrative Procedure Act, N. J. 8. A. 52:14B-1 el seq., the Director of the Division of Taxation promulgated N. J. A. C. 18:26-7.10(d), which provides that executors’ commissions are not allowed on real estate specifically devised except where the personal estate is not sufficient to pay the debts and costs of administration of the estate. Appellant attacks this regulation as invalid. We disagree. The validity of the regulation has recently been upheld. In re Talakowitsh, 127 N. J. Super. 290 (App. Div. 1974).

Our cases uniformly hold that whenever there is sufficient personalty to pay decedent’s debts, and real estate is specifically devised, title passes directly to the devisee and not through the executor. There is no proof here that the sale of this real estate was necessary to pay decedent’s debts.

The determination of the Transfer Inheritance Tax Bureau is affirmed.