author: Harrison, J. C. C.

text:
    IN THE MATTER OF THE ESTATE OF IRWIN MARKOWITZ, DECEASED.
    Essex County Court — Probate Division
    Decided November 12, 1973.

      Mr. Benjamin J. Slavitt, Esq., argued the cause for plaintiff.

      Mr. Thomas R. Farley, Esq., argued the cause for defendants.
   Harrison, J. C. C.

This is an application by the guardian ad litem of two infant plaintiffs for the declaration of partial intestacy with respect to the estate of their adoptive father pursuant to N. J. S. A. 3A:3-11. Although defendants’ counsel (acting for the two natural-born children of decedent) claims a question without specific precedent as to the effect of N. J. S. A. 3A:3-11 is presented by the facts that question does not involve the dispositive issue of the ease. ' We will consider this issue first since defendants placed greater emphasis on it in their brief and argument.

The facts are not in dispute. The testator, Irwin Markowitz, had divorced his first wife by whom he had two children. He then married Robin Markowitz, who had two daughters of her own. born January 18, 1957 and June 9, 1959, respectively. On July 19, 1967 testator executed his will. By an order of adoption entered June 28, 1968, testator adopted his second wife’s two children, who were then respectively 11 and 9 years of age.

Testator died on March 1, 1973 without making any change in his will. He made no specific mention of his adopted children, but by the second paragraph of the will he provided:

In the event that she [his second wife] predeceases me, I then direct my Executors, hereinafter named, in their sole and absolute discretion, (their decision to be final) to distribute the aforesaid chattels to my children, me surviving, as they deem fit and proper.

Plaintiff-guardian contends the two adopted children should be treated as though they were testator’s natural children, born after the will was executed, and'that the estate be distributed on the basis of partial intestacy as to them, claiming that the will neither provided for, mentioned nor disinherited them.

In support of his contention, plaintiff relies upon N. J. S. A. 3A :3-ll and N. J. S. A. 9:3-30. N. J. S. A. 3A :3-ll provides as follows:

If a testator, having any child born at the time of the making of Ms will, shall, at his death, leave any child born after the making thereof, or any issue of any such after-born child, such after-born child or his issue, if neither provided for by settlement nor disinherited by the testator, shall take the same share as if such testator had died intestate.
Toward raising any such share, the devisees and legatees and their representatives shall contribute proportionately out of the part devised or bequeathed therein to them.

N. J. S. A. 9:3-30 B. provides as follows :

The entry of a judgment of adoption shall establish the same relationships, rights, duties and obligations between the child and the adopting parent as if such child were born to such adopting parent in lawful wedlock. In applying the intestate laws of this State, an adopted child shall have the same rights of inheritance as if born to the adopting parent in lawful wedlock. In the construction of any testamentary or other document executed subsequent to the effective date of this act, an adopted child shall be deemed lawful issue of the adopting parent unless such document shall otherwise provide.

The defendants do not dispute adopted children’s rights to be considered "children” with the same inheritance status as though they were natural born children, In re Alter, 92 N. J. Eq. 415 (Prerog. 1921), but they do contend that plaintiffs are not entitled to share in the estate as their guardian ad litem contends for two reasons. Eirst, they claim that though plaintiffs were adopted after the date of the will, they were in fact physically born long before its execution and therefore cannot claim to be after-born children under N. J. S. A. 3A:3-11. Secondly, they claim that the contingent gift in the second paragraph of the will, directing the executors, in the event his wife predeceased the testator, "in their sole and absolute discretion (and their discretion shall be final) to distribute the aforesaid chattels to my children, me surviving ” indicated an awareness and mention of the testator’s after-adopted children as well as his natural-born children which precludes any benefit they might have had under N. J. S. A. 3A:3-11.

The defendants contend that the precise verbiage of N. J. S. A. 3A:3-11 does not include an after-adopted child when it provides for “any child born after the making thereof” (i. e. of the will), citing authorities proscribing correction by the courts of errors or omissions in legislation and citing the actions of the legislatures of the states of Connecticut and Alabama in amending statutes similar to N. J. S. A. 3A:3-11 to specifically provide for a child adopted after the testator executes his will.

We find that their contentions in the context of this case is not in accord with the applicable principles of statutory construction in this State.

N. J. S. A. 3A :3 — 11 and N. J. S. A. 9:3-30 have been construed to be in pari materia. Palmer v. Kingsley, 27 N. J. 425 (1958); State v. Green, 62 N. J. 547, 554-555 (1973). These statutes providing for adoption and inheritance rights of adopted children declare the State’s public policy to provide for the protection and general welfare of such children. The pertinent language of N. J. S. A. 9:3-30 provides:

The entry of a judgment of adoption shall establish the same relationships * * * between the child and the adopting parent as if such child were born to such adopting parent in lawful wedlock.

Born when ? Encompassed within this public policy is the patent purpose to protect children, natural-born or adopted, from the unmindful, inadvertent omission of any provision or mention of them by the parent in his will. The critical consideration is the fact that the child who generally may be considered an object of bounty or of some provision for future care is not in existence at the time the testator-parent malms his will. Eegardless of the time when an adopted child is physically born, he or she does not come into existence as a child of the adoptive parent (in the sense that the law equates the relationship of a natural-born Child with that of an adopted child) until the effective date of the order of adoption.

The defendants argue that the Legislature would have included the term "after-adopted children” had it intended to accord them the same pretermittent rights as after-born children. While it is true that courts generally will not supply what has been omitted by the Legislature, (see Publix Asbury Corp. v. City of Asbury Park, 18 N. J. Super. 286 (Ch. Div. 1951), aff’d 18 N. J. Super. 192 (App. Div. 1951); Abbott’s Dairies, Inc. v. Armstrong, 14 N. J. 319 (1954)), omissions may be supplied where they are necessary to carry out the manifest intent of the Legislature. See Keenan v. Essex County Board of Chosen Freeholders, 101 N. J. Super. 495 (Law Div. 1965).

Principles of statutory construction applicable here were reviewed recently by Justice Mountain as follows:

In -reading- and interpreting a statute, primary regard must be given to the fundamental purpose for which the legislation was enacted. Where a literal rendering will lead to a result not in accord with the essential purpose and design of the act, the spirit of the law will control the letter. This doctrine permeates our case law." [N. J. Builders, etc. v. Blair, 60 N. J. 330, 338-339 (1972)]

Justice EEeher is cited in this case as follows:

'''lie intention emerges from the spirit and policy of the stature rather than the literal sense of particular terms. [Caputo v. The Best Foods, 17 N. J. 259, 264 (1955)]

See also, State v. Angelo’s Motor Sales, 125 N. J. Super. 200, 207 (App. Div. 1973).

Applying these principles to the instant case it is clear that the strict exclusionary effect of the defendants’ position here would run counter to the basic design of our adoption laws. The Legislature’s prerogative to clarify its intent by adding verbiage to the statute does not of necessity make inconsistent or preclude an interpretation of the existing wording in accordance with above cited guidelines provided by our Supreme Court.

Our construction of these statutes as applied to the facts of this case would lead us to hold that an adopted child is “born” to the adoptive parent within the contemplation of N. J. S. A. 9 :3 — 30 with the entry of the order of adoption. Under the undisputed facts in this- case plaintiffs may be deemed to have all the rights of after-born children. Haver v. Herder, 96 N. J. Eq. 554 (Ch. 1924) ; In re Book, 90 N. J. Eq. 549 (E. & A. 1919); In re Reed, 19 N. J. Super. 387 (Cty. Ct. 1952).

The dispositive issue in this case, however, concerns the application of N. J. S. A. 3A:3-11 providing for testator’s partial intestacy as to the after-born child “if neither provided for by settlement nor disinherited by the testator * * It is, indeed, true, as plaintiff here argues, that whether the child was “mentioned or provided for” within the meaning of the statute must be found in the instrument itself. That instrument in this case provides, inter alia:

In the event that she [wife, Robin] predeceases me, I then direct my Executors * * -r to distribute the aforesaid chattels to my children, me surviving * * *.

Whether the phrase in a testatrix’ will, “any child or children who may survive me,” did or did not constitute a mention or provision for after-born children was determined in the affirmative in In re Campbell, 71 N. J. Super. 307, 310 (County Ct. 1961). There Judge Crane, now a judge of the Superior Court, Appellate Division, construing N. J. S. A. 3A:3-10, a companion statute of N. J. S. A. 3A:3-11, rejected the arguments advanced here by plaintiff that the will neither mentions nor provides for the after-born children, saying:

We find no requirement in N. J. S. 3A :3-10 that a specific legacy or settlement be made as was apparently the requirement under English law at one time. See In re Santelli’s Estate, 28 N. J. 331, 333 (1958). Our statutes permit intentional disinheritance. Stevens v. Shippen, 28 N. J. Eq. 487, 536 (Ch. 1877) affirmed 29 N. J. Eq. 602 (E. & A. 1878).

We conclude that the language of the will making the contingent bequest to “my children, me surviving” constituted sufficient mention or provision for the after-adopted children to refute any contention that testator was thoughtless, forgetful, or acted inadvertently with respect to the adopted children when he drew his will. Accordingly, we find N. J. S. A. 3A:3-11 is not applicable to plaintiff’s claims. Plaintiff’s application is denied.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    DONALD MANCO, PLAINTIFF-APPELLANT, v. TOWN OF IRVINGTON AND SAL DI COSTANZO, FIRE CHIEF AND DIRECTOR, DEPARTMENT OF FIRE, TOWN OF IRVINGTON, DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued May 21, 1973
    Decided June 12, 1973.
    Before Judges Carton, Mintz and Seidman.

      Mr. Peter A. Buchsbaum argued the cause for appellant.

      Mr. Herman W. Kurtz, Assistant Town Attorney argued the cause for respondents (Mr. Samuel J. Zucker, attorney).
   Per Curiam.

Plaintiff, a member of the Irvington Fire Department, challenged the constitutionality of Department Directive No. 5A, concerning style and length of hair. He also challenged the hearing procedure whereby the Fire Chief who had ordered plaintiff to cut his hair sat as the hearing officer at the departmental hearing.

The court ruled that the regulation was valid and that the Director (Fire Chief) acted fairly and impartially as hearing officer. Upholding the Director’s determination that plaintiff was in violation of the directive, the court dismissed the complaint. Plaintiff appeals.

Plaintiff was ordered by a Captain McBain of the Irving-ton Eire Department to cut his hair because he was in violation of the directive. He testified that he got a haircut the following day. Three days later McBain and a Deputy Chief Cunningham informed plaintiff that his hair was still in violation of the directive. Directive No. 5A, dated January 21, 1970, in pertinent part, provides:

Because of safety standards it becomes incumbent upon us to adhere to good safety procedures and it becomes -the responsibility of all officers and members of the department to practice simple safety standards to the effect that sideburns because of the safety feature extend to the lower ear lobe, bo parallel to each other and closely (not bushy) trimmed. In line with the same safety practices, the hairline shall not extend below the collar of one’s shirt or uniform. * *

The directive also stated that “ [r]espirators shall not be •worn when conditions prevent a good face seal” and “fs]uch conditions may be a growth of beard, sideburns * *

After reviewing the testimony, DiCostanzo concluded that plaintiff had refused to comply with the directive. He also concluded that plaintiff’s hairstyle and sideburns would interfere with the face-seal on a gas mask. Plaintiff was penalized five days’ pay.

At the Superior Court trial defendant produced two expert witnesses who testified essentially that they doubted gas masks would properly seal over plaintiff’s face because of his hairstyle. Plaintiff’s single witness testified that he had tested the mask on plaintiff and plaintiff’s attorney, whose hair was longer than plaintiff’s. He expressed the opinion that the gas mask would safely seal on him.

The court, in ruling that Directive No. 5A was valid in all respects, stated that there is “an overriding or countervailing public need to curtail the' otherwise fundamental right of the plaintiff with respect to having his hair worn in the style which he would prefer * * The court also ruled that DiCostanzo had not assumed the role of investigator, prosecutor and judge in handling the case, and that plaintiff received a fair hearing, comporting with due process requirements.

It is apparent that there was a sharp dispute among the experts as to the reasonableness of the regulation. In our view, the record amply supports the trial court’s conclusion that safety factors warranted its adoption and that it was, in fact, violated.

We find no merit in plaintiff’s additional argument that Fire Director DiCostanzo’s sitting as a hearing examiner at the departmental hearing deprived him of due process. Captain McBain was the officer who officially filed charges against plaintiff, not DiCostanzo. Plaintiff made no showing of partiality on the part of DiCostanzo in acting in his role as hearing officer. See 4 McQuillin, Municipal Corporations (3rd ed. 1972 rev’d), § 12.259b, p. 367. The record supports the trial judge’s finding that the regulation was in fact violated.

Affirmed.


text:
    JACK KRUL, T/A UNITED ROOFING & SHEET METAL CO., PLAINTIFF-RESPONDENT, v. BOARD OF ADJUSTMENT OF THE CITY OF BAYONNE, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Submitted November 19, 1973
    Decided December 17, 1973.

      Before Judges Lynch, Mehler and Michels.

      Mr. Cresenzi W. Castaldo, attorney for appellant.

      Messrs. Gruen & Goldstein, attorneys for respondent.
   Per Curiam.

An industrial building owned by plaintiff

and located in a multi-family residential zone was totally destroyed by fire. The Board of Adjustment of the City of Bayonne denied plaintiff’s application for a building permit to construct a building on the foundation of the burned-out structure. On review of the denial, Judge Earner reversed the action of the Board and entered judgment directing issuance of the permit. The Board appeals. It urges as grounds for reversal the contentions made by it in the court below and for the further reason, not raised below, that the/ permit would violate Bayonne’s zoning ordinance. That argument is without merit.

The old building was a three-story structure with two apartments on the third floor, which were rented out as dwelling units. Plaintiff proposes to build a one-story building with no apartments. Bayonne’s 1948 zoning ordinance states that “no nonconforming nse shall be extended so as to diminish the extent of a conforming use.” The 1969 revision provides that “no nonconforming use shall be extended at the expense of a conforming use.” These provisions prohibit the extension of a nonconforming use through the modification or elimination of a conforming use, which is not the case here. The new structure is to be only one story high, while the prior structure was three stories high. Thus, although the prior conforming use of a portion of the old building by means of apartments was diminished through their elimination, it was not by reason of an extension of the nonconforming use.

We affirm the judgment below substantially for the reasons expressed by Judge Larner in his opinion, which is reported in 122 N. J. Super. 18 (1972).

Affirmed.


text:
    ELIJAH REDDING AND MARGIE JACKSON REDDING, HIS WIFE; AND HATTIE HARRIS, GEORGE MORGAN, GLADYS CARR, LOUISE LIPSCOMB, AND ALL OTHERS SIMILARLY SITUATED, PLAINTIFFS-RESPONDENTS, v. BURLINGTON COUNTY WELFARE BOARD, A BODY CORPORATE AND POLITIC, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Submitted November 27, 1973
    Decided December 12, 1973.

      Before Judges Carton, Seidman and Demos.

      Mr. John B. Matthews, attorney for appellant.

      Mr. Murray J. Klein, of the Camden Regional Legal Services, Inc., attorney for respondents.
   Per Curiam.

Plaintiffs filed a class action in lieu of prerogative writs to restrain defendant from prosecuting suits in the Burlington County District Court against them and others, all of whom.are or were recipients of welfare aid under the Aid to Families with Dependent Children program, to recover payments received by them allegedly in excess of amounts authorized by law.

Each side moved for summary judgment. The court below held that defendant welfare board had no authority to seek the recovery of welfare overpayments by a civil action, and that the only procedure authorized by statute or regulation for the recovery of overpayments resulting from fraud or wrongdoing was by criminal sanctions or the reduction or denial of future payments. Judgment was entered directing defendant to dismiss the pending actions and enjoining it from instituting any further civil actions for the recovery of alleged overpayments, except as specifically authorized by statute.

The judgment is affirmed essentially for the reasons expressed in the opinion of Judge Wood in the court below. 123 N. J. Super. 572 (Law Div. 1973).


text:
    ESTELLE M. WEINER, PLAINTIFF-RESPONDENT CROSS-APPELLANT, v. HOWARD M. WEINER, DEFENDANT-APPELLANT CROSS-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued December 19, 1973
    Decided January 8, 1974.
    Before Judges Leonard, Allcorn and Crahay.

      Mr. Howard M. Weiner, appellant-cross-respondent, argued the cause pro se.

      Mr. Edward D. McKirdy argued the cause for the respondent-cross-appellant (Messrs. McKirdy and Riskin, P.A., attorneys.)
   Per Curiam.

The judgment of the Chancery Division is affirmed essentially for the reasons set forth in the opinion of Judge Polow.


author: McKenzie, J. C. C.,

text:
    BARRY E. WICHANSKY, PLAINTIFF, v. JOYCE M. WICHANSKY, DEFENDANT.
    Superior Court of New Jersey Chancery Division
    Decided November 15, 1973.

      Mr. Clifford Herbstman for plaintiff.

      Mr. R. M. James Ruscick for defendant.

      Mr. Leon Wilson represented New Jersey Psychological Ass’n, amicus curiae.

      Mr. Martin M. Friedman, for Dr. Daniel Sugarman; Mr. Kenneth L. Abrams, on the brief.
   McKenzie, J. C. C.,

Temporarily Assigned. The parties to this matrimonial action obtained marriage counseling together from Dr. Daniel H. Sugarman, a licensed psychologist. He has been subpoenaed by plaintiff husband to testify as to certain conversations which took place during the course of marriage counseling. Dr. Sugarman moves to quash the subpoena, claiming that such testimonjr would involve communications privileged under the provisions of two separate statutes.

N. J. S. A. 45:8B — 29 (Evidence Rule 28A-1) which is part of the Practicing Marriage Counseling Act enacted in 1968, provides as follows:

Any communication between a marriage counselor and the person or persons counseled shall he confidential and its secrecy preserved. This privilege shall not be subject to waiver, except where the marriage counselor is a party defendant to a civil, criminal or disciplinary action arising from such counseling, in which ease, the waiver shall he limited to that action.

N. J. S. A. 45:14B-28 (Evidence Rule 26A-1) which is part of the Practicing Psychology Licensing Act enacted in 1966, provides as follows:

The confidential relations and communications between a licensed practicing psychologist and the individuals with whom he engages in the practice of psychology are placed on the same basis as those provided between attorney and client, and nothing in this act shall be construed to require any such privileged communications to be disclosed.

Plaintiff takes the position that since Dr. Sugarman is not a licensed marriage counselor, the privilege can only be invoked under the statute applicable to psychologists. Plaintiff then urges that the confidential communications of a psychologist being on the same basis as those between an attorney and client, the privilege is lost in the instant case because it does not extend to communications involving matters for which the parties have together employed the services of the professional. Evidence Rule 26(2).

There is nothing in either of the acts to indicate that they are mutually exclusive and therefore a person may not properly claim the privilege under either act if he qualifies under the provisions of both acts. In the absence of any statutory language to the contrary it must be presumed that the Legislature did not intend the general application of the later statute, in the area of marriage counseling, to be restricted by the terms of the previously enacted statute in the field of the practice of psychology. See Application of Passaic City Clerk, 94 N. J. L. 384 (Sup. Ct. 1920). In fact, the “Practicing Marriage Counseling Act” specifically provides:

Nothing in this act shall be construed to prevent qualified members of other professional groups such as social workers, psychologists, physicians, attorneys at law, members of the clergy or guidance counselors from doing work of a marriage and family counseling nature consistent with the accepted standards of their respective profession. [N. J. S. A. 45:8B-8; emphasis added]

Plaintiff urges that Ritt v. Ritt, 98 N. J. Super. 590 (Ch. Div. 1968), rev’d on other grounds, 52 N. J. 177 (1968), is applicable. There it was held that a medical doctor specializing in psychiatry was not within the purview of the psychologist’s privilege in N. J. S. A. 45 :14B-28. At that time no physician-patient privilege existed in New Jersey (see N. J. S. A. 2A:84A-22.1 to 22.7, effective July 19, 1968), and the trial court held that it would not expand the privilege extended by the Legislature to psychologists to include physicians when the Legislature had not seen fit to grant such a privilege in the medical licensing statute. The court held that the physician was not a licensed psychologist, as specified by the statute, and therefore could be required to testify as to his treatment of one of the parties.

It is significant that the privilege under the Marriage Counseling Act, subsequently enacted, unlike that under the Practicing Psychologist Licensing ¿let, is not limited to one holding a license pursuant to the act, but applies to marriage counselors in general. This court is satisfied that this language used by the Legislature clearly shows an intent to afford the privilege to all marriage counselors, whether they are licensed under the act or whether they are engaged in marriage counseling as part of their practice in another profession pursuant to section 8.

The beneficial and therapeutic results which may be obtained for marital and family relationships through marriage counseling are- entitled to such protection. It is well recognized that to obtain the'full benefit of counseling, the participants must be able to talk freely concerning their problems. That self-disclosures and the discussion of problems often should be in the presence of the other spouse or other persons has also become recognized as a beneficial part of such sessions. To withhold the privilege here sought would clearly have a chilling effect on the vital freedom of communication between the. parties and the therapist, and therefore, in turn, a detrimental effect upon the results which might -otherwise be obtained.

The purpose of marriage counseling is to benefit the parties seeking assistance. It would be contrary to that purpose to punish, in effect, such persons by permitting testimony as to statements made during counseling which would otherwise be barred but for the lack of a license on the part of the counselor. The court is satisfied that such was not the intent of the Legislature. Violations of the act are dealt with under section 27.

The privilege under the Practicing Marriage Counseling Act is clearly broader in scope than that of the Practicing Psychologist Act. It applies to all communications, confidential or not, and cannot be waived. It applies to all persons lawfully engaged in marriage counseling pursuant to the provisions of the act, regardless whether they are licensed marriage counselors.

The court therefore holds that Dr. Sugarman, as a psychologist engaged in marriage counseling with the parties at the time the communications in question were made, is privileged from testifying as to them. Whether the privilege may also be invoked in the present factual situation pursuant to N. J. S. A. 45 :14B-28 (under the Psychologist’s Act) need not be decided at this time.

The subpoena duces tecum served upon Dr. Sugarman will be quashed.


author: Cariddi, J. C. C.,

text:
    STATE OF NEW JERSEY, PLAINTIFF, v. ROBERT MANGHAN, DEFENDANT.
    Superior Court of New Jersey Law Division
    Decided October 10, 1973.

      Nino D. Candi, Assistant Prosecutor, for the State (Mr. Sherwin D. Lester, Prosecutor of Bergen County, attorney).

      Alfred J. Egenhofer for defendant.
   Cariddi, J. C. C.,

Temporarily Assigned. This matter comes before the court, pursuant to B. 3 :5-7, on defendant’s timely motion to suppress evidence alleged to have been obtained as the result of an unlawful search and seizure.

The facts are not substantially in dispute as to the events leading up to defendant’s arrest and his subsequent indictment on charges of possession of heroin in violation of N. J. S. A. 24:21-20, subd. a(l) and taking prohibited articles (heroin) into an institution of detention in violation of N. J. S. A. 2A:101^12.

On the evening of August 14, 1973, at 7 p.m:., defendant walked through a gate into the visitors section of the Bergen County Jail to visit a woman alleged to be his wife. This is the only gate visitors are allowed to enter, and above this gate is a sign which states, “Stop. You are subject to be searched while on these premises.” Upon entering the premises defendant signed the visitors book, as he has done at least 12 times in the past.

An officer of the Bergen County Sheriffs Department had received confidential information from a matron of the same Department to the effect that defendant had been bringing drugs at visiting hours to his wife, who was incarcerated.

The captain apprehended defendant and ordered two other officers to escort him into another room and search his person. Defendant did not physically resist, but when informed that he was going to be searched he stated that he no longer wished to visit and would come back another day. He was not allowed to leave, and a search of his person revealed an aluminum foil packet in his right sock which contained a white powdered substance, later field-tested and found to be heroin.

It is also undisputed that this search was conducted without a search warrant. In a warrantless search the burden of proof is on the State. Chimel v. California, 395 U. S. 752, 89 S. Ct. 2034, 23 L. Ed. 2d 685 (1969); State v. Allen, 113 N. J. Super. 245 (App. Div. 1970).

The Fourth Amendment and Art. I, par. 7, N. J. Const. (1947), prohibit any unreasonable searches and seizures. Reasonableness is the ultimate standard and it is to be determined by the specific facts and circumstances in each case. “In justifying a particular intrusion a police officer must be able to point out specific facts, which taken together with rational inferences from these facts, reasonably warrant that intrusion.” Stephenson v. United States, 296 A. 2d 606 (D. C. Ct. App. 1972). Keasonableness requires the courts to weigh the necessity of the search against the intrusion into the privacy of an individual.

One of the well-established exceptions to the general requirement of a search warrant is when the attendant circumstances are exigent or emergent. Maryland Penitentiary v. Hayden, 387 U. S. 294, 87 S. Ct. 1642, 18 L. Ed. 2d 782 (1967); Johnson v. United States, 333 U. S. 10, 68 S. Ct. 367, 92 L. Ed. 436 (1948); State v. Dennis, 113 N. J. Super. 292 (App. Div. 1971).

In Johnson, the Supreme Court stated:

There are exceptional circumstances in which, on balancing the need for effective law enforcement against the right of privacy, it may be contended that a magistrate’s warrant for search may be dispensed. [at 14], 68 S. Ct. at 309.

New Jersey appellate decisions have held that there must also be a showing of probable cause even if there are exceptional circumstances which excuse obtaining a warrant. State v. Naturile, 83 N. J. Super. 563 (App. Div. 1964). Probable cause has proven to be very difficult to define. It is something more than a mere incriminating inkling and less than absolute proof.

In the issue before this court an officer of the Bergen County Sheriffs Department received information from a member of the same Department, that defendant had given drugs to his wife during the jail’s visiting period. State v. Gillman, 113 N. J. Super. 302 (App. Div. 1971) holds:

Information coming from law enforcement colleagues should be entilied to greater credence than knowledge supplied by an informer who lurks in or near the underworld. The courts have sensibly agreed that where information is so imparted by another law enforcement officer, it is to be received with benevolent assumptions. * * * [305]

The court feels that the information received from the matron, coupled with the fact that defendant had visited the jail at least 12 times previously, supports a finding of probable cause.

The circumstances surrounding this incident certainly should be classified as exceptional or exigent. “Well reasoned opinions of Federal Courts, while not binding, are persuasive on the issue of reasonableness of a search and seizure, in absence of decisions of New Jersey reviewing courts.” State v. Chance, 71 N. J. Super. 77 (Cty. Ct. 1961). United States v. Davis, 319 F. Supp. 20 (N. D. Fla. 1970), states:

* * * there are instances when the procedural safeguards and requirements of the Fourth Amendment are less stringent than might ordinarily be expected.
* * * where a search is made to maintain order or dicipline, to maintain security or to prevent the entry of forbidden articles into a designated area then a warrantless search is proper. * * * [22]

It is vital that contraband articles be kept out of a prison. This is necessary for the protection of the inmates, employees of the institution and law enforcement officials assigned to that institution. There is also a duty toward society which dictates that articles must be kept from a penal institution that would facilitate escape from such institutions.

The State not only has the right, but an obligation, to adopt laws which promote and insure the safety, health and morals of the inmates. It is not necessary to expound on the evils of drugs. However, the perils of the availability of drugs in a penal institution cannot be exaggerated. The ultimate purpose of a penal institution is rehabilitation. Such an institution has a duty to adopt reasonable procedures to insure that drugs are not available to inmates. The Legislature of New Jersey feels so strongly about this issue that it has enacted N. J. S. A. 2A :104^12 imposing a penalty upon one who attempts to take contraband into such institutions. Defendant is charged with a violation of this statute. This imposes a penalty in addition to the charge of possession of such contraband. Certainly, the Legislature feels this an exceptional situation. Therefore, in order to enforce this statute, it was not unreasonable for the prison officials to conduct a search, as in the instant case, of defendant’s person. This is especially true in view of the fact that a sign was posted informing the public that they were subject to such a search.

This type of search is comparable to the federally authorized customs, border and anti-hijacking airport searches. As in the issue before the court, these are situations where it is extremely necessary to detect and confiscate contraband. There are exceptional instances where warrantless searches are authorized. United States v. Skipwith, 482 F. 2d 1272 (5 Cir. 1973); United States v. Thompson, 475 F. 2d 1359 (5 Cir 1973); United States v. Espinoza, 338 F. Supp. 1304 (S. D. Cal. 1972). These cases also hold that such warrantless searches may be conducted on “mere suspicion” of criminal activity in the absence of probable cause or when it is negligible. Since this court has found probable cause in the instant case, it is not necessary to decide whether a “mere suspicion” standard could be applied to a search of visitors to a penal institution. However, such an argument would not be without merit.

It is readily apparent that the logic which allows an airport search to come under the exception of exigent circumstances can be applied to a search of visitors such as the defendant.

There is a definite and substantial interest in keeping contraband from a penal institution. In addition, the person to be searched must voluntarily come to and enter the search area, as defendant did. He had every opportunity to avoid the procedure by not entering the visitors area. A sign was posted informing him of his liability to such a search.

The court feels that less stringent constitutional standards may be applied in this type of situation since the intrusion is so necessary and the circumstances under which such a search is conducted make it much less likely that abuses will occur:

The public is assured that the net can sweep no wider than necessary since the broad right to search is limited to the last possible point in time and space which could protect the aircraft, the boarding gate (or secure corridor entrance). Thus, no mere passerby will be subject to this search — only those in the act of boarding planes could be involved. [United States v. Skipwith, 482 F. 2d at 1276]

Once again, this logic can be applied to the issue before the court. In order to be subject to such a search one must pass through the gates of a penal institution and enter a specific area. A person walking past an institution, even if he appears suspicious, would not automatically be subject to such a search.

The State has alleged that defendant gave his “implied consent” to this search in view of the fact that he passed the sign at least 12 times and entered the visiting area. While there is some merit in this argument in looking at the totality of the circumstances, this court will not impose this standard for consent upon defendant. In authorizing this warrantless search the court is not basing its conclusions on whether defendant waived his right to Fourth Amendment protection but upon the necessity and reasonableness of such a search.

This court finds no merit in defendant’s argument that once the nature of the search became apparent, he should have been permitted to leave the visitors area since he did not desire to be subjected to such a search. Once again, the standards set for airport searches are applicable:

Such an option would constitute a one-way street for the benefit of a party planning airplane mischief, since there is no guarantee that if he were allowed to leave he might not return and be more successful. Of greater importance, the very fact that a safe exit is available if apprehension is threatened, would by diminishing the risk, encourage attempts. Established search procedures are perhaps more valuable by what they discourage, than by what they discover. I see no constitutional requirement, where a defendant knew by objective signs that he was incurring the possibility of a search, that he should thereafter be allowed to play heads-I-win, tails-I-lose. [United States v. Skipwith, 482 F. 2d at 1281]

When a sheriff’s officer had a tip from an extremely credible informant, that heroin had previously been brought into the jail by this defendant, he could not be allowed the option to leave without being searched. This would render such safeguards totally ineffective.

Upon a consideration of all the factors, it is concluded that it was a reasonable exercise of police power to search the defendant without a warrant.

The motion to suppress is denied.


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

text:
    GEORGE TOMASI, INDIVIDUALLY AND TRADING AS GEORGE RICHARDS’ FOR MEN, PLAINTIFF, v. TOWNSHIP OF WAYNE, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, DEFENDANT.
    Superior Court of New Jersey Law Division
    Decided December 17, 1973.

      Mr. William J. Rosenberg for plaintiff.

      Mr. Robert S. Moraf for defendant (Mr. Lawrence D. Katz on the brief).
   Schwartz, L., J. C. C.,

Temporarily Assigned. Plaintiff, the holder of a barber shop license issued by the State of New Jersey, has challenged the constitutionality of an ordinance adopted by Wayne Township prohibiting barber shops from remaining open for business after 6 :30 p.m. on weekdays. He contends that it is an arbitrary exercise of the police power, there being no relationship between the restraint and the public health, safety and welfare to justify the restrictions imposed upon a legitimate and indispensable business.

The municipality contends that the ordinance is a valid exercise of the police power delegated to it by N. J. S. A. 40:52-1(1). The statute which has been in effect since 1917 (L. 1917, c. 97) authorizes municipalities to regulate “the hours of opening and closing on weekdays” of barber shops.

The court is satisfied that the authority to implement this statute has been specifically delegated to the municipality. But it must face the question of the constitutionality of the grant since it has become necessary for the disposition of this matter and the issue is imperative and inescapable. Smith v. Livingston Tp., 106 N. J. Super. 444 (Ch. Div. 1969); State v. Salerno, 27 N. J. 289 (1958).

For this reason plaintiff was required by the court to notify the Attorney General of New Jersey of the pendency of this action, but the State did not participate.

In a number of cases the New Jersey courts have sustained the validity of the statute and ordinances on this subject.

In Falco v. Atlantic City, 99 N. J. L. 19 (Sup. Ct. 1923), a closing hour ordinance and the 1917 closing hour statute were sustained as “well within the limits of the general police powers”:

The fruitfulness of many barber shojjs as spreaders of certain forms of contagious disease is a matter of common knowledge, and the power of the state and its subordinate agents to provide for licensing, regulation, and inspection of such places in the interest of public health cannot be doubted, [at 21]

It must be borne in mind that at that time the barbers were not merely hair stylists and they exercised talents far beyond their passion for voluble self-expression. They engaged in phlebotomy as a therapeutic device, as well as leech-craft, and the reduction of fever by the application of heated suction cups to the body. Teeth extraction by a judicious wrench of the pliers was one of their specialties.

It was not unnatural that a class of persons whose business historically brought its members into close contact with persons suffering bodily infirmities should, before the age of sterilization as we find it today, be made a target of condemnation or restraint.

Barbers were the original surgeons, and since the Middle Ages and until the 20th Century they performed operations and amputations and treated wounds and skin lesions. DeZemler, Once Over Lightly. (1939).

The sign of the barber is still a striped spiral pole, the red fillet representing the bloodied bandages used in their ministrations. Thorpe, Practice and Science of Standard Barbering. (1959).

It is without significance, but of interest, to note that even today, in onr statute on barbering, a physician and surgeon are exempt from the operation of the act. N. J. S. A. 45 :4-30.

Local health regulations of barber shops ended in 1933 when the Legislature preempted (Coculo v. Trenton, 85 N. J. Super. 523 (App. Div. 1964), as to beauty parlors) the entire field of barber hygiene and sanitation in the State by the adoption of an act to license and regulate barbering, which placed the operations of this occupation under the control of the State Department of Health. (L. 1933, c. 175).

Neither in this statute, nor in the succeeding statutes on the subject, did the Legislature mention or disturb the enabling closing hour statute adopted in 1917, and the delegation to municipalities of a limited power to regulate in the area of hours of closing remains in effect. Tonsorial, Inc. v. Union City, 115 N. J. Super. 33 (Law Div. 1971).

The Legislature, by L. 1938, c. 197, enacted a completely new statute regulating the occupation of barbering, providing for the licensing of persons to carry on such occupation, creating the State Board of Barber Examiners, providing for rules regulating the proper conduct and sanitation of the occupation of barbering, and providing penalties for violation thereof.

This law has been amended during the succeeding years so that currently N. J. S. A. 45 :4^27 to 56 comprises a comprehensive set of regulations for licensing, inspection and sanitation requirements for barbers and barber shops.

It would serve no purpose to recite all the statutory provisions to assure hygienic and salutory conditions, but these are some of the regulations mentioned in only one of the chapters, N. J. S. A. 45:4-52:

(a) There shall be readily available at such shop * * * an adequate supply of hot and cold water and where a public water supply under pressure and a sewerage system is available, there shall be provided in such shop * * * a supply of hot and cold running water under pressure. A barber shop owner shall provide at least one wash basin. The wash basin shall be so situated that the same is readily accessible to the operator of each barber chair.
(b) No towel shall be used on any person which has been used upon another patron unless such towel shall have been relaundered and thoroughly dried *' * *.
(c) The head rest of a barber chair shall be covered with a clean covering such as a towel or paper before used on any patron. Head rests shall not be placed on the floor at any time.
(d) There shall be placed about the neck of each patron served a clean towel or other clean material to prevent the hair cloth touching the skin of the patron.
(e) Any tool or part thereof which comes into contact with the head, face or neck of the patron such as razors, scissors, tweezers, combs and parts of vibrators shall be immersed in boiling water or in alcohol of a strength of 70% or higher or treated by some other equally effective method before being used on each patron. All tools or instruments when not in use shall be kept in a closed compartment and shall be disinfected before being used on a patron.
(f) Any shaving mug and shaving brush shall be thoroughly rinsed in hot water immediately before use in serving a patron.
(g) At least 2 receptacles for soiled towels and waste shall be provided. Only used towels shall be deposited in one and wastes such as used shaving paper shall be deposited in the other. All towels used on each patron must be deposited in an enclosed towel receptacle. All laundered linen must be kept in a closed compartment at all times.
(h) No styptic pencil, finger bowl, sponge, lump alum or powder puff shall be used except of the individual applicator type.
(j) A sterilizer solution container for each chair adequate in size to immerse all instruments, tools and combs to be used on each patron. Such containers shall be kept filled at all times and shall be completely emptied and cleaned and refilled with prescribed solutions at least once each week.
(o) Any barber shop maintaining toilet facilities for public use shall maintain such facilities in a clean and sanitary condition.
(t) Containers with covers must be provided for the storage of hair trimmings and other waste materials.
(w) No barber * * * shall engage in barbering nor be employed in a barber shop or barber school who is affected with any contagious or infectious diseases in a communicable stage.
(x) No common drinking cup or glass shall be maintained, kept or used.
(z) No barber shall smoke while serving a patron.

Legislating the closing hours for this business regulated so antiseptically cannot be sustained as a measure related to “contagion.”

The fading of the menace of unhealthy barber shop environment which has taken place since the years of Falco, supra, can be measured by the disappearance of one of the early appliances, the spittoon, from the modern barber shop.

These early accessories had been prominently placed to accommodate the aim of the customers. However, the withdrawal from the scene of the phlegm and saliva receptacle was anticipated by the first curbing of its extensive use in 1938 when the Legislature provided:

(g) If any cuspidor is provided it shall be thoroughly cleaned at least once each day and there shall be kept in such receptacle a disinfectant solution. [L. 1938, c. 197]

The demise of this accoutrement came in 1963. L. 1963, c. 166 provides:

(k) The use of cuspidors in a barber shop is prohibited.

While the hours of closing statute may have been reasonably related to the unhygienic conditions of barber shops at one time, the court must examine the situation as it exists today. In applying constitutional principles, the statutes and ordinances which are found clearly not to conform to the Constitution, after giving weight to the new conditions, must fall. Euclid, Ohio v. Amber Realty Co., 272 U. S. 365, 47 S. Ct. 114, 71 L. Ed. 303 (1926).

In Amodio v. Bd. of Comm’rs, West New York, 133 N. J. L. 220 (Sup. Ct. 1945), the court held that an ordinance compelling Wednesday afternoon closing for barber shops did not violate the Fourteenth Amendment or N. J. Const. (1844), Art. I, § I, particularly because restricting the hours of persons employed in barber shops safeguarded the health of those who might otherwise be engaged in later hours of service. It characterized as a legitimate concern of government the adoption of regulations having specific relation to competency of the workmen.

The court did not cite any authority for the proposition that early closing hours relate to the competency of barbers, i. e., the ability to be productive without being adversely affected by fatigue.

Studies of the subject of fatigue reject the conclusion that weariness is related to the closing or opening hour. It is related to the actual hours of employment. Workers can be just as competent if engaged on a first, second or third shift.

Fatigue affecting efficiency is related to one’s rest the day or night before, the rest periods during the day, wage incentives, the heating, cooling and ventilation of the premises, glare and reflection of lighting facilities, type of barbering services performed, height of chair and of operator, experience, pace of work required, posture habits, orderliness and breadth of working area. Gilbreth, Fatigue Study. (1916).

Under some circumstances efficiency and output per hour are increased by adding a limited number of hours to the normal working day. U. S. Dept. of Labor, Bureau of Labor Statistics, Hours of Work and Output Bulletin No. 917 (1947). Fatigue is related to the efficiency of tools and facilities used and whether they are operated manually or electrically.

Individual differences cause differences in fatigue patterns which cannot be scientifically measured or assumed by a legislature or court. Social attitudes related to oneself or to fellow employees or to customers affect weariness. Whether one is in love or is depressed or ambitious or worried or self-reliant or interested in his job affects fatigue, and the general state of his health and state of his eye health will be reflected in a barber’s efficiency.

In City of Louisville v. Kuhn, 284 Ky. 684, 145 S. W. 2d 851 (Ct. App. 1940), the court said there is clearly a broad distinction between qualifications for engagement in and conditions under which the barbering business may be conducted, and the particular hours in which it may be done. While the legislature may enact laws expressive of the police power, it may not interfere by arbitrary ipsi dixit with a lawful business where there is no plausible ground therefor, and the court has a duty to say so. It further held that members of the barber occupation are denied due process of law when they are denied the right to serve customers in evening hours, and the public welfare is disserved where men employed during the day cannot receive such service in the evening. The result is in incalculable inconvenience and detriment, both to the barber and to the patron.

In Tonsorial Inc. v. Union City, 115 N. J. Super. 33 (Law Div. 1971), the court set aside a Wednesday barber shop closing ordinance primarily because there was no enabling statute delegating to the municipality authority for such enactment as there was for closing hour regulation.

In State v. Schwarcz, 123 N. J. Super. 482 (Law Div. 1973), the challenge to a barber shop closing ordinance was based upon the failure of the municipality to similarly restrict the closing hours of beauty parlors. The court ruled this was no invidious discrimination constituting a denial of equal protection under the law.

In Fasino v. Mayor, etc., Montvale, 122 N. J. Super. 304 (Law Div. 1973), the court declared invalid an ordinance regulating the opening and closing hours of all retail business establishments. Decisions of our courts and of other courts were marshalled and a conclusion reached that the majority view is that ordinances which restrict particular hours of business operation are invalid unless the businesses regulated present a clear danger to the public health or safety or both.

As was written many years ago in the oft-cited case of Yee Gee v. San Francisco, 235 F. 757 (N. D. Cal. 1916):

For that neither a municipality nor the Legislature of a state may competently interfere under the guise of a police regulation with the liberty of the citizen in the conduct of his business — legitimate and harmless in its essential character — beyond a point reasonably required for the protection of the public, is too thoroughly settled to call for any extended citation of authority in its support, [at 763]

The testimony in the present ease established unequivocally - that plaintiff’s barber shop and the other barber shops in the community had not offended any of the local police regulations in the recent history of the community.

Barber shops in days of yore had been suspect as the place of rendezvous for the lawless, where crimes were hatched and sudden attacks upon the unsuspecting public were planned. This was the place to which gentlemen injured in duels and highwaymen wounded in action would repair. Without intending to reflect upon barber shop quartets, raucous and disturbing noises would emanate from barber shops arising from those whose relations were unharmonious.

The laxity of law enforcement in the area of barber shops was portrayed by Shakespeare in Measure for Measure:

Laws for all faults
But calls so countenanced that the strong statutes
Stand like the forfeits in a barber shop
As much in mock and mark.

The State’s concern for public safety in barber establishments is reflected in the barbering statute.

A person is not qualified to receive a certificate of registration unless he is “of good moral and temperate habits”. N. J. S. A. 45 :4-31.

A certificate may be revoked for conviction of a felony, gross malpractice, practice by one having an infectious or contagious disease, advertising by means of knowingly false or deceptive statements, habitual drunkenness or habitual addiction to the use of drugs, immoral or unprofessional conduct, and for repeated violation of sanitary rules. N. J. S. A. 45 :4-40.

The Board of Barber Examiners, or its representatives, shall have the authority to enter upon and to inspect any barber shop at any time during business hours. N. J. S. A. 45 :4-51.

Peace reigns in Wayne. The plaintiff’s shop is in a well-lit shopping area where other stores are open in the evening. In considering the challenged ordinance and statute in reference to the circumstances and the locality, the court must seek justification or need for this manner of police power within this community. Euclid, Ohio v. Amber Realty Co., supra. It finds none. The regulation does not go to sanitation or competency of the barber, nor the protection of the public or the barbers themselves in Wayne.

Its relationship to the public welfare is not greater than a statute forbidding the display of price lists for barber services, which was rejected as arbitrary in State v. Garrubo, 124 N. J. L. 19 (Sup. Ct. 1940).

While the underlying rule of law is that statutes and ordinances are entitled to a strong presumption of validity, Roe v. Kervick, 42 N. J. 191 (1964), and may only be overcome by a clear showing that they are arbitrary or unreasonable, Kozesnik v. Montgomery Township, 24 N. J. 154 (1957), “health, safety and welfare” has been used as a talisman (to ward off evil spirits) — a deceptively compelling ring. The touchstone of the reasonableness of the control is to be found in the relation of the regulation to the health, safety and welfare of the general community. If there is none, the regulation must be struck down as arbitrary and an invasion of the constitutional right of private property. Excesses in serving the public end in view are unacceptable. Collins v. Board of Adjustment, Margate City, 3 N. J. 200 (1949); N. J. Good Humor, Inc. v. Bradley Beach, 124 N. J. L. 162 (1940).

The aria of El Figaro of Wayne is clear and persuasive. The statute as it applies to this municipality, and the ordinance, constitute invalid exercises of the police power.

Let a judgment be entered, without costs, enjoining Wayne Township from enforcing this ordinance.


author: Albano, J. D. C.

text:
    TIME-DC INC., PLAINTIFF, v. TAPPINS INC., DEFENDANT.
    District Court, Essex County
    Decided December 12, 1973.

      Mr. Richard T. Zimmerman for the plaintiff (Messrs. Kleinberg, Moroney, Masterson & Schechter, attorneys).

      Mr. Richard Aloysius Walsh for the defendant (Messrs. Silverman and Walsh, attorneys).
   Albano, J. D. C.

Plaintiff brought a complaint, in two counts, alleging an amount due on a book account and an account stated. Attached to the complaint and made a part thereof was an invoice in the amount of $2,105.82, representing undercharges for shipments of merchandise.

When the matter came on for trial the parties stipulated the facts and then submitted memoranda of law in support of their respective positions.

The stipulated facts show that plaintiff is a carrier engaged in interstate commerce; defendant requested plaintiff to transport merchandise from Minnesota to New Jersey; plaintiff submitted a bill, paid by defendant, based on an erroneous quotation of prices in a published tariff; and then plaintiff sought to recover the sum lost by its mistake,

There appear to be no cases in New Jersey, but the matter has been decided elsewhere.

Under the Interstate Commerce Act, the rate of a carrier, duly filed, is the only lawful charge. No deviation is ■permitted from the published rate, and shippers and travelers :are charged with its- notice. Both must abide by the published rate unless the Commission finds it to be unfair. Further, ignorance or a misquotation of rates is not an excuse for paying or charging less or more than the rate filed. This strict rule embodies the policy adopted by Congress in the regulation of interstate commerce to prevent unjust discrimination. Thus, where there was an undercharge in the sale of a round-trip railroad ticket, where the rate had been published under the Interstate Commerce Act, and where the traveler was not at fault, but the ticket agent had made an error, the Supreme Court of the United States held that the fall rate must be paid. Louisville & N. R. Co. v. Maxwell, 237 U. S. 94, 35 S. Ct. 494, 59 L. Ed. 853 (1915).

The rights and duties of a carrier and a shipper, under the Interstate Commerce Act, are for the good of the public and are calculated to protect against secret rebates and discrimination. The published rates are binding on the carrier and the shipper, and the shipper is presumed to have knowledge of them. Union Transfer Co. v. Renstrom, 151 Neb. 326, 37 N. W. 2d 383 (Neb. Sup. Ct. 1949).

In a case, not unlike this one, a carrier sought to recover undercharges from a shipper. Shipments had been made and paid for when the carrier discovered it had made erroneous charges. Although the shipper based its product costs on the quoted charges and suffered an economic hardship, the court allowed the carrier to recover with interest from the dates of shipments because the tariff binds the carrier and shipper with force of law and may not be waived. Since the tariff is mandatory, no act or omission of a carrier will estop it from enforcing its applicable provisions. Miller v. Ideal Cement Co., 214 F. Supp. 717 (D. Ct. Wyo. 1963).

From the above it follows that judgment must be entered for plaintiff allowing the undercharge of $2,105.82, with interest from the date of filing of the complaint, and costs.

Judgment accordingly.


text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. DERRICK FLINT, BARRY STEVEN JACKSON AND CLEMENTINE JENKINS, DEFENDANTS-APPELLANTS.
    Superior Court of New Jersey-Appellate Division
    Argued January 9, 1973
    Decided March 7, 1973.
    Before Judges Labrecque, Kolovsky and Matthews.

      Mr. Harold Goldman, Designated Attorney, argued the cause for appellant Flint (Mr. Stanley C. Van Ness, Public Defender, attorney).

      Mr. Lloyd N. Simon, Assistant Deputy Public Defender, argued the cause for appellant Jackson (Mr. Stanley C. Van Ness, Public Defender, attorney; Ms. Martha K. Kwitny, Assistant Deputy Public Defender, of counsel and on the brief).

      Mr. Stanley C. Van Ness, Public Defender, attorney for appellant Jenkins (Mr. Graham Roskein, Designated Attorney, of counsel and on the brief).

      Mr. Michael R. Perle, Deputy Attorney General, argued the cause for respondent concerning appellants Flint and Jenkins (Mr. George P. Kugler, Jr., Attorney General, attorney).

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

All defendants were convicted of possession of a dangerous controlled substance in violation of N. J. S. A. 24:21-20, and possession of a revolver in a public place in violation of N. J. S. A. 2A:151-41 (a). Defendants Jackson and Flint were placed on probation for a period of three years on the drug charge and received six months in the Passaic County Jail on the weapons charge. Defendant Jenkins was sentenced to two concurrent indeterminate terms at the Correctional Institution for Women, Clinton.

Prior to trial defendants moved to suppress the evidence used against them in the subsequent trial. The motions were denied. We hold that this was error.

Accepting the State’s version of the events leading up to defendants’ arrest, we find that the police placed a motel room in the Broadway Tourist Motel in Paterson under surveillance. Detective Clark of the Paterson Narcotics Bureau stated that he had received information that defendants Jenkins and Jackson were living in the room and he decided to “check this out.” While the room was under surveillance, the police at about 2 a.m. observed a person unknown to them knock on the door of room 34. Defendant Flint whom Clark claimed to have known (how is not indicated) opened the door. When Flint opened the door the four police officers approached it. Clark stated that Flint attempted to slam the door closed, calling back into the room, “the cops are here clean up.” Flint was unsuccessful in closing the door and the police pushed it open and thereafter searched the room and defendants.

We reverse. The State’s reliance on our decisions in State v. Boswell, 115 N. J. Super. 253 (App. Div. 1971); State v. Royal, 115 N. J. Super. 439 (App. Div. 1971); certif. den. 59 N. J. 294 (1971), in support of the validity of the search here is totally unwarranted. The circumstances presented in those cases differ clearly from the circumstances presented here.

Here we are not informed what information the police had which caused them to go to the motel in the first place and take up their watch on the motel room in question. If indeed there was any information, we are not informed as to its source and reliability and there is no evidence to corroborate any inference that might be drawn that could have' given the police officers probable cause to believe that illicit activity was taking place in room 34. The act of an individual rapping on the door at 2 a.m. could have been of no significance to the police since by their own admission' the stranger was neither questioned nor detained. The claim of Detective Clark that defendant Flint stated, “the cops are here clean up” did not provide probable cause for entering’ the room.

In addition to the foregoing we note that during the trial, the testimony of one of the police officers whose credibibrty the judge relied upon to support his denial of the motion to suppress differed quite sharply as to a critical phase of the events which precipitated the search. In view of the insufficiency of the State’s case on the motion to suppress, that motion should have been granted.

Since we are constrained to reverse, we find it unnecessary to pass on the other grounds urged by defendants for reversal.

The judgments of conviction are reversed.


text:
    BRIGHTON CONSTRUCTION, INC., PLAINTIFF-RESPONDENT, v. L & J ENTERPRISES, INC., DEFENDANT AND THIRD-PARTY PLAINTIFF-APPELLANT, v. BENJ. GRUNAUER COMPANY, A NEW JERSEY CORPORATION, THIRD-PARTY DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued November 19, 1973
    Decided January 4, 1974.
    Before Judges Lynch, Mehler and Michels.

      Mr. Richard K. Rosenberg argued the cause for plaintiff-respondent (Heller & Laiks, attorneys; Mr. Richard K. Rosenberg, of counsel, and Mr. Herbert R. Ezor, on the brief).

      Mr. Robert B. Hermes argued the cause for appellant (Hermes & Gitlin, attorneys; Mr. Robert B. Hermes of counsel and on the brief).

      Mr. Milton C. Yarrow argued the cause for third-party defendant-respondent.
    Before Judges Lynch, Mehler and Michels.
   Per Curiam.

The judgment of the Chancery Division is affirmed essentially for the reasons set forth in the opinion of Judge Kole.


author: Allcorn, J. A. D.,

text:
    FRANK J. COSTANZO, JR., APPELLANT, v. NEW JERSEY RACING COMMISSION, RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Submitted October 23, 1973
    Decided January 4, 1974.

      Before Judges Leonard, Allcorn and Crahay.

      Mr. August J. Landi, Ocean-Monmouth Legal Services, Inc., attorney for appellant (Mr. Vincent A. Lloyd, on the brief).

      Mr. George F. Kugler, Jr., Attorney General, attorney for respondent (Mr. Clinton E. Cronin, Deputy Attorney General, of counsel; Mr. James F. Mulvihill, Deputy Attorney General, on the brief).
   The opinion of the court was delivered by

Allcorn, J. A. D.,

Appellant here appeals from a determination of the New Jersey Racing Commission which affirmed a ruling of the Board of Stewards of Freehold Raceway, revoking an owner’s license theretofore issued to appellant.

The Commission predicated the revocation on the following stated grounds:

(A) You are not in membership with the United States Trotting Association;
(B) You falsified your application regarding an ejection at Bay-State Raceway [Massachusetts] in violation of New Jersey Harness Racing Rule Chapter 7 Rule 2; and
(C) That based upon your arrest record and association with persons of questionable character the New Jersey Racing Commission in accordance with Chapter 7 Rule 3 of the New Jersey Harness Rules and Regulations has determined that granting you a license would not be in the best interest of racing in this State.

At the very outset we take note that the underlying statute does not either expressly or by implication invest the Commission with the authority to delegate to the “Board of Stewards” or to any one else, the power to revoke a license. By the terms of the statute, the Commission is granted “full power * * * to revoke or refuse to issue a license,” if deemed to be in the public interest. N. J. S. A. 5 :5-33. And the procedure to be followed in the case of license revocation is spelled out in detail under the provisions of N. J. S. A. 5:5-51 to 5 :5-61, inclusive ■— all of which speak of and to license revocation by the “commission.” If there were any doubt remaining, it is dispelled by the provisions of N. J. S. A. 5:5-55, which authorize the Commission, “by order, [to] refer to one * * * of its members the duty of taking testimony in a matter pending before it, and to report thereon to the commission,” followed by the express restriction that “no determination shall be made therein except by the commission.” Cf. Mercer County, etc. v. Alloway, 119 N. J. Super. 94 (App. Div. 1972), aff’d 61 V. J. 516 (1972). Accordingly, the action of the “Board of Stewards of the Freehold Baceway,” revoking the appellant’s license in the first instance, is meaningless and a complete nullity.

Notwithstanding, and as noted earlier, the Commission, as such, does have the authority to revoke an owner’s license, on notice and hearing. N. J. S. A. 5 :5-51 to 5 :51-61, inclusive. And, inasmuch as the revocation by the Commission in this cause was attended by all of the constitutional, statutory and other safeguards inherent in the requirements of due process (including a full hearing, on notice), no harm or adverse effect has resulted to appellant therefrom. Consequently, we will consider the appeal on its merits — as, in fact, it has been presented and briefed by both sides.

Appellant asserts, first, that the Commission may not lawfully require, as a preliminary qualification to the granting of an owner’s license, membership in the United States Trotting Association and. thus, may not revoke on said ground a license theretofore issued. It is plain that the specific legislative delegation to the Commission to issue licenses to owners and others “pursuant to such rules and regulations as the commission may adopt,” N. J. 8. A. 5 :5 — 33, contains no reference whatever to membership in or to compliance with the rules and regulations of the U. S. T. A. The Commission argues, however, that such authority is plainly granted under the provisions of N. J. 8. A. 5 :5 — 30, which authorizes the Commission to “prescribe rules, regulations and conditions under which all horse races shall be conducted,” and directs that every permit issued for the running of a harness race shall contain the condition, among others, that “all harness races shall be subject to the reasonable rules and regulations from time to time prescribed by the United States Trotting Association” (except where modified or abrogated by the Commission); and that Buie 26, section 1 of the U. S. T. A. stipulates that “in order to register a horse the owner thereof must he a member of this Association.”

We seriously question whether this specific legislative adoption of the rules and regulations of the U, S. T. A. with regard to race meetings, by reference, may be read into and utilized by the Commission in the exercise of the power conferred upon it to grant and to revoke licenses to owners. Moreover, any such interpretation would render the statute invalid as an improper delegation of legislative power. Eor, in making membership in the U. S. T. A. a prerequisite to the issuance of a state license, the Association (a private organization) would be thereby effectively enabled to exercise a veto in regard to a function that inheres exclusively in the legislative branch of the State Government — worse still, without any guiding standards prescribed by the Legislature, by which the exercise of such veto power might be measured and controlled. Group Health Ins. of N. J. v. Howell, 40 N. J. 436, 446-447 (1963).

As stated by the New York Court of Appeals in striking down a statutory grant of authority' to the Jockey Club to issue state licenses to horse owners and others (Fink v. Cole, 302 N. Y. 216, 97 N. E. 2d 873 (1951)) :

In our view the delegation by the Legislature of its licensing power to The Jockey Club, a private corporation, is such an abdication as to be patently an unconstitutional relinquishment of legislative power in violation of section 1 of article III of the Constitution of this State which provides: “The legislative power of this State shall be vested in the Senate and Assembly.” * * * (97 N. E. 2d at 876; [citations omitted]

Eor these reasons, non-membership in the United States Trotting Association does not constitute a valid ground upon which to predicate either refusal of the issuance of an owner’s license or revocation of such license once issued. We do not pass upon the right of the individual track owner or ■ operator to bar from participation in the trotting races conducted by it, the horse of an owner who does not hold membership in the U. S. T. A.

We turn now to the remaining findings of the Commission. Under (B), the Commission found that the appellant falsified his applieaton for an owner’s license, when he stated that his ejection from Bay State Kaceway had “been clear [ed] H. T. A. Mr. Duke.” The record discloses substantial credible evidence before the Commission to warrant said finding.

It should be here noted, parenthetically, that appellant’s falsifications were not limited to that instance alone. An examination of the testimony given by him at the hearing discloses that appellant there testified falsely as to his lack of knowledge and receipt of notification of the denial by the U. S. T. A. of his application for membership in that Association. It reveals also that appellant swore falsely in his membership application to the U. S. T. A., when he denied ever having been arrested. Nor can the latter falsification be explained as having been the result of appellant’s confusion in distinguishing the difference in meaning of the terms “arrest” and “conviction” — for the record shows the jurat on the application to be dated July 5, 1972, slightly more than two months after the distinction between the; two terms had been fully explained to the appellant at his meeting with Mr. Duke of Harness Track Security, Inc., in late April or early May 1972.

Under item (C) the Commission found that appellant’s “arrest record and association with persons of questionable character [was such] that granting you a license would not be in the best interest of racing in this State.” The evidence introduced at the hearing revealed ample proof of appellant’s association with persons who had been convicted of crime. The circumstance that one of said persons was the father and another the brother of appellant, in no way excuses or lessens the impropriety or the significance of the association.

The proofs further disclosed (and the appellant acknowledged) that within the span of seven years appellant had been arrested on seven or eight occasions, on various charges including first degree murder and robbery, illegal possession of a weapon, assault on a police officer, automobile larceny, passing counterfeit money, and possession of drugs and drug paraphernalia. There was no evidence that appellant had been convicted of any of said charges, and appellant testified that all of them ultimately had been dismissed.

It has long been settled that arrest and indictment of a person, without conviction, is not an acceptable index of character. This, on the theory that an accusation of misconduct is “quite consistent with innocence, and * * * is merely * * * somebody’s hearsay assertion as to the * * * guilt” of the person accused, 3A Wigmore on Evidence (Chadbourn rev. 1970), § 980a at 835. Compare, New Jersey Evidence Rule 47; State v. LaPorte, 62 N. J. 312, 319-320 (1973); Trap Rock Industries, Inc. v. Kohl, 59 N. J. 471 (1971), cert. den. 405 U. S. 1065, 92 S. Ct. 1500, 31 L. Ed. 2d 796 (1972). A fortiori, where the accusation has been dismissed. Consequently, we conclude that the arrest record of the appellant could not be properly considered by the Commission as a factor in its assessment of the moral character of the appellant as it affected the ££best interest of racing in this State.”

Even though we are satisfied that the proven falsification on the application for an owner’s license and the proven association by the appellant with persons convicted of crime, by themselves may furnish adequate reasons for the revocation of appellant’s license, such determination must be made initially by the Commission rather than by this court. Higgins v. N. J. Bureau of Securities, 100 N. J. Super. 266 (App. Div. 1968). To that end, the case will be remanded to the Commission.

Inasmuch as the matter must be remanded, we take occasion to note that counsel for appellant should be afforded an opportunity to examine the reports of Harness Tracks Security, dated May 12, March 2 and February 7, 1972 (from which the source or sources of the information set forth may be deleted, should the Commission deem it necessary), and to introduce evidence refuting any matters contained in said reports concerning appellant and his activities as to which no evidence was received at the original hearing before the Commission. The determination of the Commission shall be made on the basis of the record of the original hearing and any additional evidence presented by the appellant with respect to the reports.

Accordingly, the action of the Commission revoking on the grounds stated in its determination the owner’s license issued to the appellant is set aside, and the cause is remanded to the Commission for further proceedings consistent with this opinion. Pending final determination by the Commission, appellant’s license (if still effective, it having been issued only for one year) shall remain in suspension. No costs to either party.

      lndeed, neither the provisions of the underlying statute (N. J. S. A. 5 :5-22 et seq.) nor the rules and regulations promulgated by the Commission (N. J. A. G. 13:71-1 et seq.) creates or authorizes the creation of a “Board of Stewards.”

      See Martin v. Monmouth Park Jockey Club, 145 F. Supp. 439 (D. N. J. 1956), aff’d 242 F. 2d 344 (3 Cir. 1957) ; Garifine v. Monmouth Park Jockey Club, 29 N. J. 47 (1959).

      Tlie Commission’s own rules and regulations restrict denial of issuance or revocation of a license to the applicant or licensee who has been “convicted of a crime in any jurisdiction.” N. J. A. G. 13:71-4.2(a) (1).
      Compare Martin v. Monmouth Park Jockey Club, 145 F. Supp. 439 (D. N. J. 1956), aff’d 242 F. 2d 344 (3 Cir. 1957), upholding the exclusion of a jockey by the owners of a track because of his record of arrest- and of violations of riding rules. The court there said (145 F. Supp. at 441):

        In a sport where the greatest importance should attach to dissipating any cloud of association with the undesirable, and in which the appearance as well as the fact of complete integrity is of paramount consideration, to exclude plaintiff from riding because of his record was an understandably warranted exercise of discretion.


author: Francis, J. S. C.

text:
    CITY OF BRIDGETON, IN THE COUNTY OF CUMBERLAND, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, PLAINTIFF, v. THE CENTRAL RAILROAD COMPANY OF NEW JERSEY, A CORPORATION OF THE STATE OF NEW JERSEY AND ROBERT D. TIMPANY, TRUSTEE OF THE PROPERTY OF THE CENTRAL RAILROAD COMPANY OF NEW JERSEY, DEFENDANTS.
    Superior Court of New Jersey Chancery Division
    Decided December 20, 1973.

      Mr. Allan H. Harbert, City Solicitor, for plaintiff.

      Mr. Stanley Weiss for defendants (Messrs. Carpenter, Bennett & Morrissey, attorneys).
   Francis, J. S. C.

This is on a motion of a trustee in bankruptcy of the Central Railroad Company of New Jersey (Central) to stay a state proceeding essentially relating to an abatement of a nuisance. The movant relies on the federal ‘^blanket injunction” issued by the federal court pursuant to 11 U. S. C. A. §§ 205(a), 205(j) and 516(4).

The city has brought -this suit pursuant to 28 U. S. C. A. § 959 which permits the maintenance of an action against a trustee where the suit arises out of the trustee’s “carrying on” of the debtor’s business. The statute further provides that the reorganization court’s jurisdiction remains cognizable under its inherent equity power.

The trustee asserts that the reorganization court’s order negates the language of § 959. The weight of authority suggests that 11 U. S. C. A. § 516(4) and 28 U. S. C. A. § 959 should be read harmoniously. Thus, 6 Collier on Bankruptcy (14th ed. 1969), § 3.31(2) at 649-650 provides the following analysis:

(1) In personam suits within the purview of 28 Ü. 8. C. A. § 959 may be instituted without leave of the reorganization court;
(2) The reorganization court may not properly by blanket injunction foreclose the bringing of suits within the terms of § 959;
(3) The * * * trustee * * * may not properly contend as a defense * * * that the claim should be prosecuted only in the reorganization forum;
(4) The * * * trustee * * * may * * * apply to the judge of the reorganization court to enjoin the continuation of the suit.

The issue, properly framed, is whether the facts, and the remedy sought by plaintiff, fall within the- narrow parameters of 28 U. S. C. A. § 959, and outside the exclusive jurisdiction of the reorganization court over “the debtor and its property,” 11 U. S. C. A. § 205(a). In Ex parte Baldwin, 291 U. S. 610, 618, 54 S. Ct. 551, 78 L. Ed. 2d 1020 (1934), cited by trustee, the Supreme Court held that the exclusive jurisdiction of the bankruptcy court is determined by the “main purpose” of the suit. If the continuation of the suit in the state court unduly impedes, burdens, or interferes with the progress of the reorganization proceeding, then the federal judge has the discretion to enjoin the party seeking relief in state court. Kennison v. Philadelphia Read ing Coal & Iron Co., 38 F. Supp. 980 (D. C. Minn. 1941). The main purpose of the suit herein seeks to enjoin alleged nuisances caused by the trustee in the “carrying on of the business” of the railroad. The suit does not seek to terminate rail service or to interfere with reorganization.

Two cases illustrate the propriety of state court jurisdiction in limited circumstances against a trustee in bankruptcy. In Thompson v. Texas Mexican Ry. Co., 328 U. S. 134, 66 S. Ct. 937, 90 L. Ed. 1132 (1946), the Supreme Court held, among other things, that petitioner, a trustee of a railroad under reorganization could sue in the state court for a more favorable rental of trackage under a contract with defendant railroad, also under reorganization'. In Gutensohn v. Kansas City Southern Ry. Co., 140 F. 2d 950 (8 Cir. 1944), the federal court indicated that a declaratory action could be brought in the state court against a trustee of a railroad in bankruptcy. Petitioners sought relief concerning allowances to employees deprived of employment as a result of a coordination agreement among several railroads into which the bankrupt railroad was absorbed. The court stated that the relief sought did not involve any direct or immediate interference with “the debtor and its property.” If the embarrassment to the estate or the debtor is merely incident to or has indirect repercussions on matters involved in the bankruptcy proceeding, the federal judge must take account of public policy considerations behind § 959 to allow the petitioner to have his demand determined locally. See In Re Magnus Harmonical Corp., 233 F. 2d 803 (3 Cir. § 1956). Moreover, federal court discretion to stay state court proceedings in such cases is drastically limited by 28 U. 8. C. A. § 2283.

It should be remembered that the reorganization court is vested with final discretion as to whether or not continuation of a state suit should be enjoined. Diner’s Club v. Bumb, 421 F. 2d 396 (9 Cir. 1970).

Order accordingly permitting the continuation of the state suit.