author: Per Curiam.

text:
    JOHN BEXIGA, JR., AN INFANT BY HIS GUARDIAN AD LITEM, JOHN BEXIGA, SR., AND JOHN BEXIGA, SR., INDIVIDUALLY, PLAINTIFFS-APPELLANTS, v. HAVIR MANUFACTURING CORP., DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued March 15, 1971
    Decided April 26, 1971.

      Before Judges Sullivan, Oollestee and Labbecque.

      Mr. Robert J. Oardonshy argued the cause for appellants (Messrs. Forman, Forman & Oardonshy, attorneys).

      Mr. James F. Norton argued the cause for respondent (Messrs. Lane & Evans, attorneys).
   Per Curiam.

Plaintiffs appeal from an adverse judgment following the granting of defendant’s motion for involuntary dismissal at the close of their case.

Plaintiff John Bexiga, Jr. sued for loss of fingers and deformity to his right hand caused by its being struck by the ram of a punch press which he was operating for his employer Eegina Corporation (Regina). The action was grounded in negligence, strict liability in tort and breach of warranty of fitness of purpose. His father sued for loss of services and expenses.

The power press in question was manufactured by defendant Havir Manufacturing Corp. (Havir) in 1961 and was sold that same year to J. L. Lucas & Son, Inc. and shipped to Regina, the employer of John Bexiga, Jr. There was no contention that the press malfunctioned because of defective materials, workmanship or inspection. Bather, plaintiffs’ theory was that the press, though properly manufactured so far as it went, was so inherently hazardous that the manufacturer was under a duty to protect the ultimate user from the danger posed by it. Eeduced to its simplest terms, plaintiffs’ basic contention was that the machine should have been equipped at the factory with some form of safety device to guard against or minimize the danger.

Plaintiffs’ proofs were to the effect that on June 12, 1966 plaintiff John Bexiga, Jr., an 18-year-old high school junior who had been working evenings for Eegina for approximately two months, was directed, for the first time, to work on the machine in question. His supervisor showed him how to operate the machine and then left. He had been operating it for about half an hour when, as he described the accident:

Well, I put tlie round piece of metal on the die and the metal didn’t go right to the place. I was taking my hand off the machine and I noticed that a piece of metal wasn’t in place so I went right back to correct it, but at the same time, my foot had gone to the pedal, so I tried to take my hand off and jerk my foot off too and it was too late. My hand had gotten cut on the punch, the ram.

The machine was adaptable to a number of operations but wsa being used at the time solely as a punch press to punch holes in small metal discs. Its essential components were the ram, the die and a foot pedal which actuated a clutch causing the ram to descend with tremendous force (it was rated at ten tons) when the pedal was depressed. In actual operation, when a disc similar to the ones Bexiga was handling would be placed on the die and the pedal depressed, the ram would plunge downward onto the disc four inches below, it would then return to its original position, the finished disc would be automatically blown into an adjoining container, the trimmings would be ejected and the press would be ready for another cycle. The only protective device with which the press was equipped at the factory was a metal guard for the large flywheel.

A mechanical engineer called by plaintiffs testified as an expert that at the time of the accident the press amounted to a “booby trap” because of the absence of a protective device to prevent the ram from descending while the operator’s hands were in the work area (point of operation) beneath it. He testified that effective protective devices to guard against the hazard were available and known to the trade, both at the time the press was purchased and at the time of the accident. He described one such device as a pair of push-button controls so spaced as to require the use of both of the operator’s hands before the ram could be activated. Another was a guardrail or swing gate (of which there were many variations) to shield the operator’s hands from the ram. His testimony would have supported an inference that had the press been equipped with either form of safety device the accident would probably not have happened.

The expert conceded, however, that at the time the press was purchased and up to the time of trial, in accordance with the practice in the trade, presses like the one here involved were not equipped with guardrails at the factory, but it was customary for the ultimate purchaser of the machine to install them. This was because the appropriate type of guardrail or other device to be employed in a given case would depend on the particular use to which the machine was to be put. He opined, nevertheless, that the machine was unsafe as designed and the hazard inherent in its operation required that it be equipped with some form of protective device. He stated that proper design for safety would have been satisfied by the installation of a push-button control (requiring the simultaneous use of both hands of the operator) such as was furnished by the manufacturer on the large presses. He conceded that a large variety of protective devices were available to the purchaser of a press, but averred that in the case of quite a number of machines they were “not gotten eventually because the machine comes without one.”

The issue presented is a narrow one. We are not concerned with the general question of whether power presses such as the present one should be equipped with safety devices, but whether the manufacturer could be held liable to plaintiffs, based upon the testimony of plaintiffs’ expert and under the theory of negligence or strict liability in tort, for its omission to embody some form of safety device in the power press delivered to Regina.

We are in accord with plaintiffs’ contention that conformance with industry standards of construction, manufacture or design, while evidential on the issue of negligence, is of itself not conclusive as to the absence of negligence. Texas & P. R. Co. v. Behymer, 189 U. S. 468, 23 S. Ct. 622, 47 L. Ed. 905 (1903); Wellenheider v. Rader, 49 N. J. 1, 7 (1967); Shafer v. H. B. Thomas Co., 53 N. J. Super. 19, ,22-25 (App. Div. 1958). Upon a showing of negligence on its part, defendant could be held liable notwithstanding that its negligence concurred with the negligence of Regina' or its employees to permit the machine to be in the dangerous condition which proximately caused the accident. Post v. Manitowoc Eng. Corp., 88 N. J. Super. 199, 204-206 (App. Div. 1965). Plaintiffs’ right to recovery did not depend upon the presence of privity between them and defendant. Rosenau v. New Brunswick, 51 N. J. 130, 140-142 (1968); Santor v. A. & M Karagheusian, Inc., 44 N. J. 52, 63 (1965); Jakubowski v. Minnesota Mining and Manufacturing Co., 80 N. J. Super. 184, 192-193 (App. Div. 1963). However, taking as true all evidence supporting plaintiffs’ views and giving them the benefit of all legitimate inferences to be drawn therefrom, we are satisfied that they failed to-make out a prima facie case under either of the theories cited aboveC

On the issue of strict liability the pertinent portion of the rule is set forth in the Restatement as

(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate 'user or consumer, or to his property if
(a) the seller is engaged in the business of selling such a product, and
(b) It is expected to and does reach the user or consumer without substantial change in the condition in which it is sold, [Restatement, Torts 2d, § 402A (1965) ]

See also Rosenau v. New Brunswick, supra, 51 N. J. at 140-142; Schipper v. Levitt & Sons, Inc., 44 N. J. 70, 90-92 (1965); Santor v. A & M Karagheusian, supra, 44 N. J. at 64-67. From the foregoing it is clear that strict liability presupposes that the assertedly defective product placed in the channels of trade by the manufacturer be expected to and does reach the user or consumer without substantial change in the condition in which it leaves the manufacturer’s hands.

(4] Such was not the case here. At the most, plaintiffs’ proofs established that Havir sold a specified power press to Lucas, presumably a dealer in machinery, and shipped it to Eegina pursuant to the dealer’s instructions. There is nothing in the record to support an inference that either Lucas or Eegina ordered safety devices installed or even that Havir was in the business of furnishing such devices (the testimony was that they were available from third parties). Assuming that Iiavir knew that Eegina intended to use the press in its manufacturing operations, industry custom directed that the installation of protective devices was the duty of the buyer, hence it had no reason to believe that the press would he put to use without some additions, i- e., the installation by Regina of protective devices suitable to whatever manufacturing process the press was to be devoted. Further, N. J. S. A. 34:6-62, which was in effect at the time of sale but has since been repealed and superseded by N. J. S. A. 34:6A-3, required that a factory owner equip its power presses with proper guards.

By reason of the foregoing it cannot be said that the absence of safety devices amounted to a defect in the machine for which Havir could be held responsible under strict liability principles. Since the machine was designed to perform a number of different manufacturing operations, and the method of affording protection to the operator could differ with each operation, to hold otherwise would be, in effect, to require the supplier of the press to afford protection under all circumstances of use.

The following cases, which involve products intended to be used in the form they leave the manufacturer’s hands, are clearly distinguishable. Henningsen v. Bloomfield Motors, Inc., 32 N. J. 358 (1960) (automobiles); Jakubowski v. Minnesota Mining and Manufacturing Co., supra (grinding wheels); Rosenau v. New Brunswick, supra (water meters); Deveny v. Rheem Manufacturing Co., 319 F. 2d 124 (2 Cir. 1963) (water heaters); Morrow v. Caloric Appliance Corp., 372 S. W. 2d 41 (Mo. Sup. Ct. 1963) (gas stoves) ; B. F. Goodrich Co. v. Hammond, 269 F. 2d 501 (10 Cir. 1959) (tires); Richey v. Sumoge, 273 F. Supp. 904 (U. S. D. C. Or. 1967) (brush cutters). Compare Schipper v. Levitt & Sons, Inc., supra, (manufacturer held not liable for injury from use of water from boiler which should have been •equipped with mixing valve when installed by builder).

On the issue of negligence a manufacturer owes the duty of exercising reasonable care in the design and production of its product to avoid an unreasonable risk of harm from the use thereof by those likely to be exposed to the risk. Jakubowski v. Minnesota Mining and Manufacturing Co., supra; Restatement, Torts 2d §§ 395, 398 (1965). The maker of an article for sale or use by others is required to use reasonable care and skill in designing it so that it is reasonably safe for the purpose for which it is intended as well as for other uses which are foreseeably probable. Jakubowski, supra, 80 N. J. Super, at 191-194. Whether reasonable care has been exercised in a given ease depends upon whether there has been a breach of this duty, whether by action or inaction, which had it been observed would have avoided the injury complained of. Brody v. Albert Lifson & Sons, 17 N. J. 383, 389 (1955).

Here the facts to which we have already adverted negate any inference of negligence on defendant’s part. The infant plaintiff was injured, not because of any defect in the machine proper, but because safety devices, which the jury could have found should have been furnished to guard against the hazards inherent in all such machines, were not supplied when the machine was placed in operation as part of Regina’s manufacturing plant. The basic issue here is whether the jury should have been permitted to determine whether responsibility for the absence of such precautions was chargeable to defendant. Our answer is in the negative.

Viewed realistically, we fail to see how, under the proofs, Havir could reasonably have been expected to do anything more than deliver the press ordered by Lucas to Regina, the latter’s customer. Schipper v. Levitt & Sons, Inc., supra, 44 N. J. at 96 — 99. In the absence of an order from either Lucas or Regina, it was not contractually obliged to install any safety devices. While it is conceivable that it might have refused to deliver the press which Lucas had ordered unless it was also authorized to install safety devices, Regina could undoubtedly have procured an equivalent product from another manufacturer. Eurther, assuming that an obligation were to be imposed on Havir to install some sort of safety device, what form would it have taken? Obviously, it would have been impracticable to install a safety device that would be adapted to- all uses. Since the machine could be used to perform various tasks it conceivably could require a different group of safety devices in connection with each task. It was apparently for this very reason that both the custom in the trade and N. J. S. A. 34:6-62 placed the primary obligation of supplying them upon the factory owner whose employees were to use them. We hold that the imposition of such a duty upon Havir would have been impractical and that it did not act unreasonably in not equipping the press with safety devices “on its own.”

Plaintiffs urge that Havir as the manufacturer owed a duty to warn “of latent limitations of the machinery” if the foreseeable user thereof would be ignorant of them, and the manufacturer has no reason to believe the ultimate user will recognize the danger, citing Martin v. Bengue, Inc., 25 N. J. 359 (1957), and Schipper v. Levitt & Sons, Inc., supra. However correct this may be as an abstract statement of the law, it has no application here. The asserted defect in the machine, i. e., the absence of guards or safety devices, was patent rather than latent. Further, their argument that Havir failed in its duty to “give instructions for the proper use of the machinery” and that no such instructions or warnings were inscribed on the machinery is negated by their own expert who testified:

Q Assume now the machine is manufactured as that particular machine was in 1961, assume it was manufactured without safety guards. Now in your opinion, should the manufacturer have recommended to the purchaser a manner in which that particular machine was to be put to use?
A I’m sorry, I don’t think so.

There was no duty on the part of Havir to warn that one who inserts his hand in a power press when the ram is descending risks injury, see Prosser, Torts (3d ed. 1964), § 96 at 666-667 or of the obvious fact that there were no safety guards.

Neither Martin v. Bengue nor Schipper v. Levitt & Sons, Inc. is apposite. In the former the product was one which was liable to be ignited under certain conditions, a characteristic of which the user could be totally unaware. In Schipper, again, the defect was a latent one, the boiler having been constructed so as to produce domestic hot water at a temperature far in excess of normal, in the absence of a mixing valve.

For the foregoing reasons we conclude that the motion to dismiss was properly granted. In so doing we are not to be considered as holding that a defect, in order to be actionable, must be a latent one, see Schipper v. Levitt & Sons, Inc., supra, at 84, or that infant plaintiff was guilty of contributory negligence as a matter of law.

Affirmed.

       Power presses of this (press-rite) type manufactured by Havir were rated at from 2 tons through 85 tons.

       The heavier machines apparently wpúld not require that anything be held by the operator.

       Rules .and regulations governing tlie safe operation of power presses were promulgated by the Department of Labor and Industry in June 1950. Current rules and regulations are to be found in N. J. A. C. 12:143.


source: Caselaw Access Project

author: Bachman, J. D. C.

license: Public Domain

text:
    STATE OF NEW JERSEY, PLAINTIFF, v. JOAN KOLCZ, GERALDINE RIFINO, WALTER WEBER, PETER TEAGNO, SALLY RIZZO, POLONIA S. HENSEL, AGNES GIBBONS, PATRICK GIBBONS, FLORENCE CSIK, DEFENDANTS.
    Middlesex County Court Law Division (Criminal)
    Decided April 7, 1971.

      Mr. Edward A. Podole'slci, Assistant Prosecutor, for the State (Mr. Clinton E. Cronin, Acting Prosecutor, attorney for the State).

      Mr. Bryan D. Garruto, for defendant (Messrs. Heilhrunn, Tahman, Finkelstein, Heilhrunn ¡£ Garruto, attorneys).
   Bachman, J. D. C.

(temporarily assigned). This is an appeal of nine cases wherein the respective defendants were found guilty of violating N. J. S. A. 2A :170-31 (trespassing) by the Monroe Township Municipal Court.

The incident occurred on January 26, 1971, at about 2 p.m., at the Eossmoor Community, “a planned retirement village.” What this means is that a developer using a parcel of land in Monroe Township laid out a community consisting of dwelling units, a church structure, a community hall and a small shopping area. To accomplish this the Township zoning ordinance was amended to accommodate such a plan. Upon the completion of the dwelling units they were advertised for sale to persons over the age of 62. Children may live with their parents, provided they are 18 years of age or older. A person wishing to occupy one of the dwelling units purchases a share or shares of stock in a corporation and signs a contract with that corporation granting him permission to live there; the contract is renewable at the option of the resident every three years.

Upon entering into occupancy the person buying an interest is given what is called a “welcome booklet.” This contains, among other things, rules and regulations governing the community. The pertinent part of this booklet reads as follows: “Solicitors and unauthorized persons will not be admitted to Rossmoor, New Jersey.”

There is no municipal corporation in New Jersey by the name of Rossmoor, and the Rossmoor development with which we are concerned is located in and is-part of Monroe Township.

Defendants are members of a group of citizens of the township who desire to change the present form of municipal government. They embarked upon this in the manner prescribed by the appropriate statute of New Jersey, i. by circulating a petition to be signed by the required number of local citizens. On January 26, 1971 this group, one of whom is a member of the municipal governing body, went to Rossmoor with the intention of asking the residents to sign their petition. They intended to do this by going from door to door of the dwelling units, ringing door bells and asking the residents if they care to sign the petition. Rossmoor is, apparently, in part surrounded by a wall and there are gates with security guards. Upon arriving, the nine defendants were met by the president of one of the holding companies and by a lawyer, their visit apparently having been anticipated. They informed these two gentlemen of their intention and were told that they could not enter upon the premises. Defendants nevertheless entered and went about their intended mission. Complaints were then signed in the municipal court by Donald Ankeny, president of Mutual No. 2 of New Jersey, which is the holding corporation for the land upon which defendants entered.

There is no question that these defendants were who they said they were, what they said they were, and doing what they said they were going to do. In other words, they were engaged in a bona fide activity, seeking signatures on their petition to change the form of government. There is testimony before this court that no political doorbell ringing had ever been tolerated in the Rossmoor community. On the other hand, the district committeeman of one of the major political parties testified that each year he engaged in so-called door-bell ringing for one of two purposes: either to get his own petition signed so that his name would be on the ballot, or to advocate the candidacy of the national, state, county and local candidates of his party’s choosing. He was told he could do it because he was a resident of Rossmoor. This court accepts the testimony of the committeeman as true, and rejects the contrary testimony. Eurther testimony showed there had been, at various times, an introduction of political candidates at social affairs held in the community, but the only candidates introduced were residents of the community.

Defendants, in their conversation with the representatives of the community on January 26, 1971 were informed that they could go to the community center and set themselves up in such a manner that residents could go to them if they desired to sign the petition.

During the course of the trial a representative of the Middlesex County Board of Elections testified. She said that the total number of registered voters in Monroe Township was 4,628 and of that number 990 resided within the confines of Rossmoor.

The aforementioned is the factual setting presented to this court and our decision is rendered solely in relation to the present circumstances.

In State v. Kirk, 84 N. J. Super. 151 (Cty. Ct. 1964), the court stated that under certain circumstances picketing on private property would not constitute a trespass. What the courts must do is balance the “equities” on an individual case basis.

The case of Martin v. City of Struthers, 319 U. S. 141, 63 S. Ct. 862, 87 L. Ed. 1313 (1943), involved an ordinance which made it unlawful for anyone distributing “handbills, circulars, or other advertisements” to ring a doorbell or otherwise summon homeowners to the door for the purpose of receiving such literature. A member of the Jehovah’s Witnesses, who was convicted of violating the ordinance by distributing pamphlets to homeowners concerning a religious meeting, had her conviction reversed by the U. S. Supreme Court. The court ruled the ordinance to be an unconstitutional invasion of the right of free speech and press. In weighing the conflicting interests of the defendant’s civil rights, as well as the right of the individual homeowner to determine whether or not he wishes to receive defendant’s message, against the interest of the community which attempted by this ordinance to insulate its citizens, whether they wanted such protection or not, the court concluded that the ordinance substituted the judgment of the community for the judgment of the individual householder and submitted the distributor to criminal punishment even though the intended recipient of the literature may have, in fact, been glad to receive it. Annotation, 35 A. L. R. 2d 379 (1954) Justice Black, in his opinion, said:

For centuries it has been a common practice * * * for persons not specifically invited to go from home to home. * * * to communicate ideas to the occupants or to invite them to political, religious, or other hinds of public meetings. Whether such visiting shall be permitted has in general been deemed to depend upon the will of the individual master of each household, and not upon the determination of the community. * * *[319 U. S. at 141, 63 S. Ct. at 862, 87 L. Ed. at 1316]

The court stated that anyone familiar with political life realizes that campaigning door-to-door is one of the most accepted techniques of seeking popular support. Also, the circulation of nominating papers would be greatly handicapped if they could not be taken to the citizens in their homes. Furthermore, it was said that

The dangers of distribution can so easily be controlled by traditional legal methods, leaving to each householder the full right to decide whether he will receive strangers as visitors. * * * [319 U. S. at 147, 63 S. Ct. at 865, 87 L. Ed. at 1319]

Justice Murphy, in his concurring opinion in Martin, cites Schneider v. Town of Irvington, 308 U. S. 147, 60 S. Ct. 146, 84 L. Ed. 155, 165:

One is not to have the exercise of his liberty of expression in appropriate places abridged on the plea that it may be exercised in some other place [319 U. S. at 150, 63 S. Ct. at 867, 87 L. Ed. at 1321]

Applying this principle to the case before the court, one cannot help but agree that there is no substitute for door-to-door communication.

The Martin case concerns itself with safeguards and states that door-to-door canvassing may be reasonably regulated as to time, number and identification of canvassers. These regulations will protect the privacy and safety of the homeowner and yet preserve the substance of free speech.

* * * The fact that, some regulation may be permissible, however, does not mean that the First Amendment may be abrogated. * * * Freedom of religion has a higher dignity under the Constitution than municipal or personal convenience. [319 U. S. at 151, 63 S. Ct. at 867, 87 L. Ed. at 1321]

In Marsh v. Alabama, 326 U. S. 501, 66 S. Ct. 276, 90 L. Ed. 265 (1946), a company-owned town sought to ban the distribution of literature of Jehovah’s Witnesses. A direct conflict existed between an individual’s First Amendment rights and the right of the owners of the town to prohibit the exercise of these rights. Justice Black explained:

Ownership does not always mean absolute dominion. Tile more an owner, for his advantage, opens up his property for use by the public in general, the more do his rights become circumscribed by the statutory and constitutional rights of these who use it. *' * * When we balance tbe Constitutional rights of owners of property against those of the people to enjoy freedom of press and religion, as we must here, we remain mindful of the fact that the latter occupy a preferred position. * * * In our view the circumstance that the property rights to the premises where the deprivation of liberty, here involved, took place, were held by others than the public, is not sufficient to justify the State’s permitting a corporation to govern a community of citizens so as to restrict their fundamental liberties and the enforcement of such restraint by the application of a State statute. [326 U. S. at 506, 66 S. Ct. at 278, 90 L. Ed. at 268-270.]

Justice Erankfurter, in Ms concurring opinion stated:

* * * Title to property as defined by State law controls property relations ; it cannot control issues of civil liberties which arise precisely because a company town is a town as well as a congeries of property relations. * * * [326 U. S. at 511, 66 S. Ct. 281, 90 L. Ed. at 271]

Thus, the principle emerged that, when determining whether property is public, the court will look at constitutional law rather than the law of property. Wolin v. Port of New York Authority, 392 F. 2d 83 (2 Cir. 1968).

In Hall v. Commonwealth, 188 Va. 72, 49 S. E. 2d 369 (1948), a regularly ordained minister of Jehovah’s Witnesses was convicted of unlawful trespass. The minister and others entered a 12-story apartment bmlding and were informed by the attendant at his desk that they could not go upstairs unless they complied with the rule regulating the calls of all visitors. Disregarding the attendant, the parties went upstairs to distribute their tracts. Some of the tenants complained to the management and shortly thereafter the minister was arrested, charged and convicted.

In Hall every visitor who entered the building was required to stop at the desk in the lobby and have the clerk announce his arrival to the tenant. The effect of that rule was that the tenant determined whether or not the visitor was allowed to call. The court stated:

The object of the regulation adopted by the Prestwould corporation with the acquiescence of the tenants is to secure the safety, comfort, convenience, and privacy of all tenants. * * * The attendant in the lobby is made the servant — the doorkeeper — of each tenant. * * * Bach householder and not the owner exercises the right to determine whether he will receive the visitor, be he an acquaintance or a stranger, [at 373]

Previous cases have upheld the rights of individuals “to go upon the streets and to go from house to house and knock upon the doors abutting on the streets, in order to enable them to distribute their (evangelical) literature.” These rights were upheld in cases where the streets and abutting houses were privately owned by a corporation. However, no court has yet ruled that an individual has “any Constitutional right to go beyond the streets and into the abutting houses against the wishes of the owners or occupants.” Hall, supra, at 377.

Breard v. Alexandria, 341 U. S. 622, 71 S. Ct. 920, 95 L. Ed. 1233 (1951), held, in its relevant part, that a municipal ordinance prohibiting canvassers or peddlers from calling at private residences unless requested or invited by the individual occupant to do so, does not, as applied to solicitors of magazine subscriptions, unconstitutionally abridge freedom of speech and press. The court distinguished Martin v. City of Struthers, supra, saying:

As no element of the commercial entered into this free solicitation and the opinion was narrowly limited to the precise fact of the free distribution of an invitation to religious services, we 1'eel that it is not necessarily inconsistent with the conclusion reached in this case. [341 U. S. at 643, 71 S. Ct. at 933, 95 L. Ed. at 1249]

Using the same reasoning as the Supreme Court, this court believes that it can distinguish the case at hand from Breará, supra, in that the present case involves defendants who were not engaged in commercial activity. It appears that persons endeavoring to disseminate political or religious information are protected by the Constitution, but those wishing to canvass an area for business purposes must yield to other considerations. The Supreme Court in Breará states that freedom of speech is not an absolute right, but must be adjusted to the rights of others. That right must yield whenever the attempt to exercise it is solely for the purpose of commercial profit.

This court believes that decisions relating to municipalities are equally applicable to Rossmoor, since it is in many essential regards a self-sufficient community. The corporate officers may speak for the citizens of Rossmoor on matters relating to health, welfare and safety. These officers may believe that it is their duty to protect the Rossmoor residents from annoying or obnoxious sales methods, but the court cannot allow the corporation to decide to bar what it knows to be a bona fide political endeavor.

In Breará, supra, the court quoted from Martin, supra, stating:

Freedom to distribute information to every citizen whenever he desires to receive it is so clearly vital to the preservation of a free society that, putting aside reasonable police and health regulations of time and manner of distribution, it must be fully preserved. [341 U. S. at 643, 71 S. Ct. at 933, 95 L. Ed. at 1248]

Although the guaranties of free speech and free press will not be used to force a community to admit peddlers or solicitors of publications to the homes of its residents, Breará, supra, such guaranties should be used to insure that each individual alone decides what political and religious information he wishes to receive.

This court is bound by legal principles reiterated by the United States Supreme Court. In applying these principles to the instant case the court feels that defendants were exercising a legal right in a legal manner and therefore were not trespassers. This court does not wish to open wide the gates of Rossmoor and thereby allow anyone to come in, at anytime, for any purpose. Nevertheless, this court feels compelled to hold ajar the gates of Rossmoor under the present circumstances. To hold otherwise would, in effect, create a political “isolation booth.”

The nine complaints are therefore dismissed and counsel for defense will submit the appropriate order for judgment.


author: Mountain, J. A. D.

text:
    FRANCES MURRAY AND JOHN A. MURRAY, PLAINTIFFS-RESPONDENTS, v. ANDREW J. MICHALAK AND JEAN K. MICHALAK, t/a THE CHANCELLOR GUEST HOME, DEFENDANTS-APPELLANTS.
    Superior Court oí New Jersey Appellate Division
    Argued November 23, 1970
    Decided December 16, 1970.
    Before Judges Goldmann, Leonard and Mountain.

      Mr. Jay E. Greenblatt argued the cause for appellants (Messrs. Greenblatt and Greenblatt, attorneys).

      Mr. William J. Hughes argued the cause for respondents (Messrs. Loveland, Hughes and Garrett, attorneys; Mr. Arthur T. Ford, III, on the brief).
   The opinion of the court was delivered by

Mountain, J. A. D.

Defendants appeal from a judgment entered upon a jury verdict in favor of plaintiffs. They allege as error the refusal of the trial court to grant their motions for judgment at the conclusion of the plaintiffs’ case and for judgment non obstante veredicto following the return of a verdict favorable to plaintiffs. Defendants offered no proofs.

The root of a tree elevated a flagstone in defendants’ sidewalk. The tree was growing in the strip of ground that commonly is to be found between sidewalk and curb. While walking along the sidewalk plaintiff, Prances Murray, tripped over the raised slab, fell and sustained injuries.

There was no testimony as to who planted the tree. An expert called by the plaintiffs estimated it had been planted 15-25 years before the accident. It was also shown that the municipality (Ocean City) had no shade tree commission, never had one, nor did it care for or maintain the city’s shade trees. On the other hand, there was uncontradicted testimony that defendants as well as their immediate predecessors in title, had never tended the tree nor had they ever, sought to repair the sidewalk. Upon this evidence the court found that a jury might reasonably draw an inference that the tree had been planted by a former owner of defendants’ property and that hence this issue — who planted the tree — should go to the jury. We cannot agree.

An abutting owner is not liable for injuries suffered by a pedestrian on a defective or dilapidated sidewalk even though it constitutes a nuisance, unless the proofs show that that owner or his predecessor in. title participated in the creation or continuance of the nuisance. Rupp v. Bergess, 70 N. J. L. 7 (Sup. Ct. 1903); Rose v. Slough, 92 N. J. L. 233 (E. & A. 1918); Murphy v. Fair Oaks Sanatorium, 127 N. J. L. 255 (E. & A. 1941); cf. American Law Institute, Restatement of the Law, 2 Torts (Negligence, sec. 349-50, pp. 956-960; Negligence Law in New Jersey, Stevenson (1945), pp. 132-133. The owner of premises abutting a public sidewalk is not responsible for defects therein caused by the action of the elements or by wear and tear incident to public use, and not caused by his own wrongful act. Rupp v. Burgess, supra; Volke v. Otway, 115 N. J. L. 553 (E. & A. 1935) ; Halloway v. Goldenberg, 4 N. J. Super. 488 (App. Div. 1949); Snidman v. Dorfman, 7 N. J. Super. 207 (App. Div. 1950). [Moskowitz v. Herman, 16 N. J. 223, 225-226 (1954)]
A plaintiff does not make out a prima facie case against an abutting owner merely by putting in proof of the existence of a nuisance, and he cannot thereby throw upon the owner the burden of establishing that neither he nor his predecessor in title is responsible for its creaUon or continuance, (citing cases) On the contrary, plaintiff has the burden of proving that the owner or his predecessor in title was responsible therefor. [Lambe v. Reardon, 69 N. J. Super. 57, 61-65 (App. Div. 196.1), certif. den. 36 N. J. 138 (1961)]

It must be conceded that the proofs necessary to establish a prima fade case may often be difficult or impossible for a plaintiff to discover. But this court has said,

We come then to the question whether there is a presumption, or a rule affecting the burden of proof, which aids the plaintiffs. In the present ease, as above observed, there is no proof that the defective work on the sidewalk, undertaken 23 to 25 years before the accident, was performed by or chargeable to one of defendants’ predecessors in title. But, it will bo asked, is it not so likely that the work was imputable to a predecessor in title that we may presume it? Perhaps over the years, municipalities, the Works Progress Administration, utilities and others whose acts are not properly imputable to the owner, have built or performed work on sidewalks with such frequency that no such presumption can fairly be indulged. It will be observed that the cases attempt to find in the proofs some basis, even though at times not strong, for drawing an inference that the abutting owner or a predecessor in title caused the work to be done.
********
In any event it is held that if there is no proof as to who performed the work, there must be a judgment for the defendant. [Orlik v. De Almeida, 45 N. J. Super. 403, 408 (App. Div. 1957)]

In our view the proofs justify no inference as to who planted the tree, and accordingly we must conclude that plaintiffs have not sustained the necessary burden of proof. Defendants’ motion for judgment should have been granted.

Plaintiffs ask us to depart from existing case law and adopt the so-called Pennsylvania rule with respect to sidewalk injury cases such as this one. Dissatisfaction with the prevailing rule in this state provoked the same argument in an earlier ease and we can only repeat the answer there given.

The briefs deal with the power of the court to alter the decisional law. However, it is not the function of the Appellate Division to alter a rule solidly supported by the courts of last resort. [Orlik v. De Almeida, supra, at 409.]

Reversed, with directions to enter judgment for defendants.


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

text:
    IN THE MATTER OF PETITION OF THOMAS F. X. SMITH, MUNICIPAL CLERK OF THE CITY OF JERSEY CITY, IN RE RECALL ELECTION OF THE CITY OF JERSEY CITY. THOMAS F. McGOVERN AND ANIELLO R. PECORARO, INDIVIDUALLY AND INCUMBENT COUNCILMEN OF THE CITY OF JERSEY CITY, PLAINTIFFS-APPELLANTS, v. THOMAS F. X. SMITH, CITY CLERK OF THE CITY OF JERSEY CITY, DEPENDANT-RESPONDENT.
    Superior Court of New Jersey-Appellate Division
    Argued March 23 and 30, 3971
    Decided April 28, 1971.

      Before Judges Lewis, Matthews and Mihtz.

      Mr. Benjamin II. Ohodash argued the cause for Thomas J. Whelan, Mayor of Jersey City.

      Mr. Harold J. Buvoldt, Jr. argued the cause for Thomas F. McGovern and Aniello R. Pecoraro, individually and incumbent couneilmen of Jersey City (Messrs. Buvoldt and Buvoldt, attorneys).

      Mr. James F. B,yan, Corporation Counsel of Jersey City, argued the cause for Thomas F. X. Smith, City Clerk of Jersey City.

      Mr. Floyd F. Lombardi argued the cause for Citywide Independent League (Mr. Ralph P. Messano, attorney).

      Mr. William J. Brennan, III argued the cause for Community Action Council (Messrs. Bernard M. Hartnett, Jr., Gerald P. Lally and Mr. Brennan, attorneys).
   The opinion of the court was delivered by

Lewis, P. J. A. D.

This consolidated proceeding embraces three appeals from four separate orders of the Law Division regarding the recent effort of the Citywide Independent League (O.I.L.) and the Community Action Council (C.A.C.), two civic and political organizations of the City of Jersey City (city), to recall the mayor and seven of the nine councilmen of the city. The matters here under review have come before us as the result of numerous motions and petitions seeldng emergent relief, leave to appeal and the consolidation and acceleration of the several appeals involving the mayor and two ward councilmen.

In view of the complexity of the proceedings and particularly because the major issues raised are of first impression in this State, a recital of the significant events productive of this litigation is essential.

On January 11,1971 the C.I.L. filed a petition with Thomas P. X. Smith, the municipal clerk of the city (clerk), seeking the recall of Mayor Thomas J. Whelan, Ward Councilmen Thomas P. McGovern, Aniello R. Pecoraro, Prancis Quilty and William Massa, and Councilmen-at-Large Thomas Plaherty, John Jaroski and John Kelaher. The latter five incumbents did not participate in these proceedings. The petition directed against Mayor Whelan was subscribed by 30,362 signatures. The petition directed against McGovern contained 5,945 signatures, and the petition directed against Pecoraro contained 3,384 signatures.

On January 29 the clerk certified the results of his examination of the Whelan petition. He reported that of the signatures filed, only 17,089 were acceptable in tabulating the 26,870 signatures required to effect the mayor’s recall. It was his conclusion that the required number, statutorily prescribed by N. J. S. A. 40 :69A-169 as “(35%) of the registered voters of the municipality,” represented 35% of the registered voters of the city on November 3, 1970, the date of the last general election in the city.

The clerk notified the C.I.L. of the deficiency so as to enable it to amend the original petition within the ten-day period allowed by N. J. S. A. 40:69A-170. On February 8 the C.A.C., with the permission of the C.I.L., filed a separate petition containing 33,037 signatures as. an amendment to the original C.I.L. petition. The following day the clerk made a motion before Judge Larner of the Law Division for a declaratory judgment concerning the permissibility of the amendment procedure. At the hearing thereof on February 10 the court determined that inasmuch as the petitions represented the will of the signers, i. e., the voters-at-large, and not that of the groups soliciting the signatures, and because the statements of the grounds for recall were substantially the same in both petitions, the consolidation of the two petitions by way of an amendment was permissible. An appropriate order to that effect was entered February 17. On February 35 a notice of appeal from that order was filed by Mayor Whelan.

On February 11 the clerk certified the results of his examination of the C.I.L. petitions against the ward councilmen. His report recited that of the 5,945 signatures filed against McGovern, only 3,447 were validated. This sum fell short of the required 5,396 signatures. Additionally, the clerk’s report stated that of the 3,384 signatures filed against Pecoraro, only 1,101 were validated, thus failing to meet the required number of 3,019. Again the clerk notified the C.I.L. that its petitions were deficient.

On February 31 the C.A.C. filed two other separate petitions., this time as an amendment to the original petitions against McGovern and Pecoraro. The next day McGovern and Pecoraro instituted a suit seeking injunctive and declaratory relief to restrain the clerk from examining or otherwise acting upon the petitions seeking their recall, on the grounds that the C.A.C. amendment was impermissible and that the C.I.L. petitions were so permeated with fraud as to be invalid in their entirety. After the matter was heard, the Law Division, on February 27, denied their application. In doing so Judge Larner indicated that his previous determination of the clerks original motion for a declaratory judgment, involving the Whelan petitions, was dispositive of their contention regarding the permissibility of the amendment. Additionally, he noted that the fraud alleged would not serve to vitiate the entire petition, notwithstanding that such fraud might prove to be extensive, on the theory that the electorate-at-large should not be penalized for the misconduct of particular individuals. He distinguished his decision from those cited cases wherein petitions were totally invalidated, on the theory that there the perpetrators of the fraud were candidates for the offices involved.

On March 1 McGovern and Pecoraro sought leave from this court to appeal from the February 27 order of the Law Division. Thereafter, on March 4 we entered an order granting emergent relief, directing the clerk to refrain from certifying the validity of any petitions or fixing a date for a recall election until further ordered.

On March 3 the Law Division enjoined the clerk from fixing a date for the recall election of the mayor pending a final determination of his appeal to this court. On March 5 we entered an order which directed the clerk to announce the results of his examination of the petitions against the mayor but restrained him from certifying those results and from fixing a date for recall. The order further provided that oral argument of the mayor’s appeal would be heard on March 23. On March 6 we directed that the McGovern and Pecoraro motion for leave to appeal also be listed for argument on that date.

Subsequently, the O.A.C. filed its notice of motion for leave to appeal from two orders of the Law Division dated March 5 and March 11, whereby it was respectively determined that the relevant percentage of the voters of the city was to be computed with reference to the date of the last general election and that the affiants required to attest to the petition sheets circulated in the city wards had to be residents of those wards. The G.A.C. also submitted a petition to this court for emergent and other relief related to said order. On March 12 we granted leave to appeal from the orders of March 5 and March 11 and set down a hearing for March 30. Thereafter, on March 17, the C.l.L. submitted a petition for leave to appeal which, in due course, was granted.

Oral arguments were heard on March 23 and 30, 1971, and on the latter date, with the consent of all parties, this court sua sponte ordered that the several instant appeals be consolidated; an appropriate order has been filed. Hereafter, for convenience of reference and except as otherwise provided, the G.A.C. and C.l.L. shall be designated as petitioners and the mayor and eouncilmen shall be referred to as incumbents.

Essentially, this appeal requires the resolution of the following four issues: (1) whether the consolidation of the C.l.L. and C.A.C. petitions qualifies as, an amendment within the meaning of N. J. S. A. 40:69A-170; (2) whether the presence of fraud in certain C.l.L. petition sheets, as occasioned either by the actions of the solicitors of signatures, the statutory affiants attesting thereto or the signers of the petition, or all of the above, invalidates the entire petition; (3) whether the date of the last general election preceding the filing of the petitions is the appropriate standard with reference to which the relevant percentage of “registered voters” is to be computed, and (4) whether the affiant of a petition seeking the recall of a ward councilman is required to be either a signer of the petition or a resident of the ward, or both.

Preliminarily, we note that our determinations in these respects substantially accord with those expressed in the several oral opinions of Judge Larner for the Law Division. We shall consider the issues seriatim.

I

In substance, incumbents argue that the provision of N. J. S. A. 40:69A-170, allowing the amendment of petitions, does not embrace the consolidation of two separate petitions. Their contention is meritless and their reference to generally unrelated statutory provisions in support of a contrary conclusion is not helpful.

As used in common parlance, the word “amend” has been broadly defined to include such activities as: to repair, to restore, to free from faults, to alter in any way, and to improve. Webster’s New International Dictionary (2d ed. 1959). It is plain that the manner of performing these activities can include addition or subtraction. To exclude one or the other is manifestly unreasonable. Cf. United States v. Lapp, 244 F. 377, 383 (6 Cir. 1917). Specifically, with regard to amendment by addition, it has been observed that the words and processes described by addition and amendment may “be regarded as roughly or even accurately interchangeable.” O’Pry v. United States, 249 U. S. 323, 330, 39 S. Ct. 305, 307, 63 L. Ed. 626 (1919). Furthermore, it has also been noted that even an act independent and original in form (the present “consolidation”) is to be treated as amendatory. 1 Sutherland, Statutory Construction (3d ed. 1943), § 1901 at 325; see United States v. La Franca, 282 U. S. 568, 51 S. Ct. 278, 75 L. Ed. 551 (1931).

There is no cogent reason for excluding addition or consolidation as a means of amendment and this is especially true where the petitions involved share common grounds of origin and represent the interests of the community-at-large. To hold otherwise would frustrate the public will and would contravene our oft-stated policy to liberally interpret statutory provisions pertaining to recall in favor of the electorate. Westpy v. Burnett, 82 N. J. Super. 239, 246 (App. Div.), aff'd o. b. 41 N. J. 554 (1964); see Wene v. Meyner, 13 N. J. 185, 197 (1953); Giuliano v. Reichenstein, 110 N. J. Super. 489, 498 (Law Div. 1970); Stone v. Wychoff, 102 N. J. Super. 26, 33 (App. Div.), certif. den. 52 N. J. 254 (1968); 4 McQuillin, Municipal Corporations (3d ed. 1968), § 12.251 at 312.

II

The resolution of the question concerning the effect of the alleged fraud on the validity of the entire recall action is essentially a matter of philosophy involving a choice between, on the one hand, allowing every qualified citizen to effectively register his discontent with the elected officials representing him and, on the other hand, limiting the possibility of fraud in such endeavors to the minimum by striking down all such protests because some are infected with fraud. Incumbents’ reliance on the authority of McCaskey v. Kirchoff, 56 N. J. Super. 178 (App. Div. 1959), in support of the latter alternative, is misplaced. See In re Petition of Job, 111 N. J. Super. 170, 172 (App. Div.), certif. den. 57 N. J. 124 (1970). That case, as well as Weisberger v. Cohen, 22 N. Y. S. 2d 1011 (Sup. Ct. 1940), aff’d sub nom. Matter of Weisberger v. Cohen, 260 App. Div. 392, 22 N. Y. S. 2d 835 (App. Div. 1940), was concerned with the treatment of petitions secured in behalf of the candidacy of political aspirants who themselves had knowingly participated in the procurement of fraudulent signatures. Cf. Matter of Collins v. Heffernan, 187 Misc. 165, 167, 63 N. Y. S. 2d 692, 694-695 (Sup. Ct. 1946), which dealt with forgeries gathered by agents, employees and friends of candidates. The decisions to completely invalidate those petitions seem to have been predicated upon the equitable principle that a wrongdoer should not benefit from his own wrongdoing.

Additionally, we note that unlike those foreign jurisdiction cases cited by incumbentsi, the instant matter does not turn solely upon the fraud of the petition circulators. Here, the alleged fraud is stated in general terms, and, although we are satisfied that there are spurious and forged names present in several petitions, the source or sources of the fraud remain unidentified. Moreover, it is significant that fraud was not the exclusive basis for the clerk’s rejection of many of the signatures. His reasons for refusing to validate certain signatures include: “Not Registered,” “Signature does not compare with that reflected in Bureau of Elections Binder,” “No such address,” “Out of City,” “Illegible,” “Duplicates,” “Generally no address or name or similar contingency” and “Not Eligible.”

In other jurisdictions the courts have taken divergent views respecting the effect of various types of fraud on petitions of nomination, initiative and referendum. See, e. g. Sturdy v. Hall, 204 Ark. 785, 164 S. W. 2d 884 (Sup. Ct. 1942), and Sturdy v. Hall, 201 Ark. 38, 143 S. W. 2d 547 (Sup. Ct. 1940), reconciled in Pafford v. Hall, 217 Ark. 734, 233 S. W. 2d 72 (Sup. Ct. 1950); Barkley v. Pool, 103 Neb. 629, 173 N. W. 600 (Sup. Ct. 1919); State, ex rel. v. Graves, 90 Ohio St. 311, 107 N. E. 1018 (Sup. Ct. 1914); State, ex rel. Donofrio v. Henderson, 4 Ohio App. 2d 183, 211 N. E. 2d 854 (Ct. App. 1965); State ex rel. Carson v. Kozer, 105 Or. 486, 210 P. 179 (Sup. Ct. 1922); State ex rel. v. Olcott, 62 Or. 277, 125 P. 303 (Sup. Ct. 1912); Morford v. Pyle, 53 S. D. 356, 220 N. W. 907 (Sup. Ct. 1928).

Our view of the effect of fraud on petitions for recall accords with that of the courts of New York. See Matter of Lefkowitz v. Cohen, 262 App. Div. 452, 29 N. 7. S. 2d 817 (App. Div. 1941) aff’d 286 N. Y. 499, 36 N. E. 2d 680 (Ct. App. 1941), wherein the Appellate Division, in deciding an appeal from an order which declared void a petition designating John R. Davies as a mayoral candidate, rejected the theory that persons who obtain signatures to designating petitions are the agents of all the signers “so as to make those who are honest chargeable with knowledge that some of the signatures are forged or fraudulent. (Matter of Burke v. Terry, 203 N. Y. 293, 297, 96 N. E. 931).” The court ruled that it would be unjust to disenfranchise those citizens whose names happened to be on sheets which contained names that were irregular, and that to reject the entire petition because it was “saturated with fraud” would unfairly deprive qualified signers of the right to designate a candidate “simply because others over whom they have no control may have perpetrated a wrong.” 262 App. Div. at 454, 29 N. Y. S. 2d at 820.

Here, as Judge Lamer appropriately observed:

* * * in a recall petition, and particularly the recall petitions in this City, there is no individual, there is no party involved, there is no perpetrator of a fraud who is to be penalized by virtue of vitiating his entire application because of what he did. So that the entire rationale of the MoCaslcey case of preventing the perpetrator of the fraud from carrying it out by this wholesale voiding of the jjetition does not apply.

Furthermore, it is noteworthy that the matter was before the Law Division on a motion for injunctive relief. The trial court found, and we agree, that incumbents would not be prejudiced if the clerk continued to perform his duties.

Ill

Petitioners urge that the trial court erred in its conclusion that the computation standard for determining the required percentage of the registered voters of the city was the date of the most recent general election rather than the date of the filing of their petition. They point to the fact that with the exception of N. J. 8. A. 40 :69A-184, the Faulkner Act under which the city functions, and specifically N. J. S. A. 40:69A — 169, is unlike analogous provisions appearing in other sections of our election laws in that it fails to explicitly provide that the relevant percentage of registered voters shall be computed with reference to the next-preceding general election. The argument runs that in the absence of definitive statutory guidelines, the 25% requirement should be struck against the number of voters registered at the end of the month preceding the filing of a recall petition. Petitioners rely heavily upon Roman v. Sharper, 53 N. J. 338 (1969), and urge that qualified voters are those who are eligible to vote at a recall election. In that case the court held that for purposes of tabulating the 25% requirement, “qualified voters/5 in the case of a ward election, meant “voters registered from that ward and therefore ‘qualified5 to vote at the election55 (at 341-342). It is thus argued that the most recent general election date is not controlling.

The incumbents seek to refute that contention and take the position that “only two figures have been used as a reference base55 in our election law: “(a) the number of voters who voted at the last general or municipal election or (b) the number of registered voters at a former election.55 They base this' predication upon Johnson v. Reichenstein, 50 N. J. Super. 116, 121 (App. Div. 1958), wherein this court stated: “The pattern that emerges from the statutes is that the number of signers required is readily ascertainable by reference either to registration totals or votes cast in a prior election.55 Incumbents may have misread the import of that case. We did not mean there to indicate that these were the sole bases of reference, nor did we intend to imply that the prior election, which is most commonly used, must always serve as the reference base for ascertaining registration totals. Compare N. J. S. A. 40:69A-1, 3, 19, 25, 153, 169, 184 and 185; and N. J. S. A. 19:13-5. However, in light of the several provisions throughout our election laws referring to the most recent general election fox a determination of voter registration, it is at least arguable that if the Legislature had intended the quantitative base to be in some manner related to the date of filing a recall petition, and not the date of the last general election, it would have so provided in unmistakable language.

The absence of statutory guidance in N. J. S. A. 40 :69A~169, regarding an appropriate standard for determining the reference base, necessitates a practical approach to the problem. In this respect we are guided by the actions of the Legislature in other related areas. Note, e. g., N. J. S. A. 40:71-1 and 5; N. J. S. A. 40:74-14; N. J. S. A. 40 :75-3 and 27; N. J. S. A. 40 :80 — 1. By way of comparison, see N. J. S. A. 19:13-5 of the General Election Act, which requires a petition nominating an officer for election to be signed by at least 2% of the entire vote cast for members of the General Assembly at the last-preceding general election.

During the Law Division hearing of this matter petitioners called the clerk of the local Burean of Elections as a witness. lie testified :

Q. Mr. Brady, if I were to ask you now how many registered voters there were in Jersey City on January 11, 1970, what effort would the Bureau of Elections have to make in order to ascertain that figure, sir?
A. They would take the report as of November the 3rd, 1970, subtract from it the removals and add the additions.
THE COURT: Are those figures readily available?
THE WITNESS: On a monthly basis only, your Honor, not on a daily basis.
s¡: í> * ❖ * * Jje *
Q. So if I asked you, for example, as of January 1st what the figures were, you wouldn’t have to do anything. You have those figures.
A. We would have to make a few additions or subtractions, simple arithmetic.

The evidence in this area of the case was most general and related to the municipality-at-large. There is an indication in the record, however, that the allegedly ascertainable monthly calculations referred to were not available with regard to the municipal wards.

More importantly, there is no statutory requirement to maintain a current voter registration list. We recognize that such lists are indirectly up-dated by statutorily mandated monthly reports concerning death, N. J. S. A. 19:31-16, and disenfranchisement by conviction, N. J. S. A. 19 :31-17, by registrations entered by municipal clerks, N. J. S. A. 19 :31 — 7, by the discretionary acts of commissioners or county boards of registration, N. J. S. A. 19 :31-15, by the corrective procedures required to be exercised by the commissioners or municipal clerks, N. J. S. A. 19 :31 — 11.1, 12, 13.1, 14, 19, 23 and 26, and by the acts of the registrants themselves, N. J. S. A. 19:31 — 11 and 13. Nevertheless, these procedures are not so coordinated as to insure the ascertainment of the current voter registry with requisite certitude.

The trial judge, who was aware of these inherent problems, concluded:

* * * that for purposes of clarity, certainty and accord with the overall plan of the election laws, that the Legislature intended that the only practical intention that can be utilized is the number of registered voters as of the time of the last general election, otherwise we get involved with extensive and elaborate technicalities and methods of trying to find out as of a certain date the number of people that have been stricken from the rolls since the last general election, the number of people who have registered since the last general election. This is not a standard norm, that, I think, was intended by the Legislature. * * * If you are to utilize the date of the filing of the petition, this makes it too viable, too much subject to, as I say, disputes, litigation, arguments, et cetera.

In the circumstances of this case, particularly where a period of less than 60 days had intervened between the last general election and the end of the month preceding the filing of the petitions, during which period recall petitions were being circulated, we find neither a practical nor a legal basis upon which to disturb the determination of the Law Division.

1Y

Petitioners claim that the identity of the affiants either as ward residents and/or as signers of the petitions they attested is irrelevant to the validity of those petitions. They maintain that a departure from the provisions of N. J. S. A. 40:69A-170, to the extent that a petition affiant failed to sign the petition or was not a ward resident, or that he was neither a ward resident nor a signer, is a mere technical failure which should not invalidate an otherwise valid affidavit or petition. They insist that such an approach is consonant with our ease law and further, that it is necessitated by the practical exigencies of a “multi-level recall” effort.

In support of their relaxed approach to the express directives of the Legislature they rely principally upon Sharrock v. Keansburg. 15 N. J. Super. 11 (App. Div. 1951). However, Sharrock is not supportive of their contention and, as incumbents appropriately observe, that was a post-election contest. Qualitatively, there seems to be some difference between an effort to set aside a concluded election and an attempt to preliminarily eliminate or cure deficiencies in an inchoate recall action. See In re Smock, 5 N. J. Super. 495, 501-502 (Law Div. 1949); 29 C. J. S. Elections § 51 at 68; cf. In re Clee, 119 N. J. L. 310 (Sup. Ct. 1938). Additionally, it is noteworthy that Sharrock involved a directory statutory provision with which there had been substantial compliance.

In this regard we are mindful that there is no constitutional right to recall officeholders and that if the right is granted, the Legislature can impose rational restraints upon its exercise. Roman, supra, 53 N. J. at 341; see In re Smock, supra, 5 N. J. Super, at 501; Leers v. Diehl, 11 N. J. Misc. 525, 527, 167 A. 216, 217 (Sup. Ct. 1933). Here, the Legislature did just that. Consequently, there must be a substantial compliance with the statutory procedure adopted. Bab v. Hoyt, 79 N. J. Super. 531, 533 (Law Div. 1963).

The express provision that “[o]ne of the signers to each such paper,” N. J. S. A. 40:69A-170, shall execute the statutory affidavit cannot readily, if at all, be ignored on the theory that it is directory and not mandatory in nature. In fact, with regard to the rationale of Roman, that the Legislature intended “to commit the subject of recall to the voters qualified to vote” in the ward recall effort, the affiant’s residence in the ward appears to be the essence of the explicit statutory provision. See 53 N. J. at 341-342. See also, State of New Jersey, Report of the Commission on Municipal Government, 16-17 (1949). Therefore, the statute should not be considered merely directory. Paramus v. Block 1527, Lots 1-2, Ridgewood Park Estates, 42 N. J. Super. 369, 375 (App. Div. 1956); Sharrock, supra, 15 N. J. Super, at 17; see Swiney v. Dept. of Treasury, Div. of Pensions, 84 N. J. Super. 186, 192 (App. Div. 1964).

Apart from these considerations-, it is of more than little interest that in at least one instance our former Supreme Court rejected certain petitions in an initiative on the ground that the statutory affidavit was executed by “one who did not sign the paper [petition] itself.” Buohl v. Beverly, 89 N. J. L. 378, 379 (Sup. Ct. 1916). In Buohl the statute (L. 1911, c. 221, at 478) provided that the “signatures, verification, authentication, inspection, certification, amendment and submission” of petitions for initiative “shall be the same as provided for petitions under the last [recall] section.” Significantly, except for the substitution of the word “take” for the word “make” (an oath), that section contains language identical to the critical provision presently involved. Compare N. J. S. A. 40 :69A — 170, reproduced in part in n. 3, supra, and L. 1911, c. 221, § 15, at 476.

Of like effect as Buohl is Fiannaca v. Gill, 78 Nev. 337, 372 P. 2d 683 (Sup. Ct. 1962), citing Buohl with approval, and In re Opinion of the Justices, 114 Me. 557, 95 A. 869 (Sup. Jud. Ct. 1915), wherein the precise questions now raised were considered. To wit:

(A) In certain cases it appears that the verifying petitioner did not sign the petition as a petitioner, which he verifies, but did sign some other petition. In such case shall the names on the petition verified by him be counted?
Answer: We answer in the negative.
(B) Would it affect the counting of names on petitions just described if the verifying petitioner, although failing to sign the petition as a petitioner, which he verified, sign a similar petition as a petitioner in the same town or city; such latter petition being properly certified by the town clerk?
Answer: We think the verification of a petition must be by a petitioner whose name is upon the petition verified. [114 Me. at 570, 95 A. at 875]

In the same vein, see 42 Am. Jur. 2d, Initiative and Referendum, § 30 at 678.

Although it may seem that the conclusion suggested by the foregoing discussion conflicts with the philosophy previously adopted in relation to the effect of the alleged fraud upon the validity of the entire O.I.L. petition, it is to be remembered that the underlying distinction is not one of philosophy but, rather, of compliance with the clear and explicit terms of the statute in question. See Sharrock, supra, 15 N. J. Super at 18. In the circumstances, the statute must be enforced without qualification. Rafferty v. Schatzman, 81 N. J. Super. 58, 62-63 (Law Div.), aff’d o. b. 81 N. J. Super. 64 (App. Div 1963). This is not to say, however, that a petition sheet must always fall where the affidavit appended to it is technically irregular or defective. See Wyckoff, supra, 102 N. J. Super, at 31-32; accord, Pafford v. Hall; State, ex rel. v. Graves; cf. State ex rel. Carson v. Kozer; Barkley v. Pool, all supra. Also, see 28 Am. Jur., Initiative, Referendum And Recall, § 62 at 477-478.

In the instant case, it would seem to have been perfectly permissible to have amended the affidavits by substituting qualified affiants, who could have attested to the genuineness of the signatures, within the ten-day amendment period of N. J. S. A. 40.-69A-170. If such affiants were unavailable, one or more of the signers could have rechecked the signatures by recirculating them among the signers of the petition. Such a course of action not only seems plausible but, also, is clearly within the intendment of the statute. In fact, it is plain that the legislative provision for an opportunity to amend defective petitions was intended to comprehend any curable defects. That petitioners failed to avail themselves of that opportunity now debars them from complaint. Cf. Sharrock, supra, 15 N. J. Super, at 19; 26 Am. Jur. 2d, Elections, § 224 at 55. To hold otherwise would do violence to the explicit language of the statute and contravene the clear intent of our Legislature.

Eor the foregoing reasons, the several orders under review are affirmed.

       Part of this statute provides, in substance, that in first class municipalities having a population exceeding 800,000 an initiated ordinance may be submitted upon a petition signed by voters equal to 15% of the valid votes cast at the last-preceding election for the General Assembly.

       This statute provides that a recall petition shall demand the removal of a designated incumbent, be signed by qualified voters equal in number to at least 25% of the registered voters of the municipality, and be filed with the municipal clerk. It shall set forth a statement of the cause upon which the removal is sought.

       This statute provides in pertinent part, that the signatures to a recall petition need not all be appended to one paper but each signer shall add to his signature his place of residence giving the street and number or other sufficient designation if there shall be no street and number. One of the signers to each such paper shall take an oath before an officer competent to administer oaths that the statement therein made is true, as he believes, and that each signature to the paper appended is the genuine signature of the person whose name it purports to be.


author: Eastman, J. C. C.

text:
    BARBARA WRIGHT, PLAINTIFF, v. NATHAN WRIGHT, JR., DEFENDANT.
    Superior Court of New Jersey Chancery Division
    Decided April 28, 1971.

      Mr. Thomas R. Ashley for plaintiff (Messrs. Brown, Yogelman, Morris & Ashley, attorneys).
   Eastman, J. C. C.

(temporarily assigned). The question to be decided on this pendente lite motion is whether, in a separate maintenance action, a “long-arm” personal service on a nonresident defendant gives Chancery in personam jurisdiction over him to warrant the entry of support orders and judgments against him. Defendant has filed no answer nor has he in any manner appeared in the action.

Plaintiff’s complaint alleges that she and defendant were married in North Carolina in 1942. Erom 1964 to November 1968 they cohabited as husband and wife in Orange, N. J., when defendant abandoned her and their daughter Carolyn, now aged 12. He remained in this State'until June, 1969. On June 26, 1969 he instituted a suit for divorce against plaintiff in Nevada and procured a divorce decree on July 17, 1969. Plaintiff entered no appearance in that action nor did she participate in any manner. That decree was later adjudged to be of no force or effect by a judgment of this court on October 19, 1970 (Docket M3958-69).

After securing his ex parte divorce he returned east, went to New York, apparently residing in Albany until he purchased a $50,000 home overlooking the Hudson Biver in Selkirk, N. Y., where he lives with another woman whom he apparently married after securing the Nevada decree. He has since June 1969 been employed by the State University of New York, at Albany, as chairman of its African-American Studies Department.

Defendant is alleged to be a renowned author and educator, has served as a consultant to the University of Cincinnati, C. IV. Post College and the Minneapolis Board of Education. He has published a number of works, one of which is entitled Black Power and Urban Unrest. Significantly for purposes of this ease he writes a weekly Sunday article for the Newark Star Lodger.

Plaintiff’s complaint seeks separate maintenance and support for herself and the child of this marriage. Defendant is allegedly earning $45,000 a year. Service of the summons, complaint and notice of motion for temporary allowances were personally served on defendant at the State University in Albany by a deputy sheriff of Albany County.

New Jersey statutes dealing with jurisdiction are set forth in N. J. S. A. 2A:34-8, 9 and 10. Section 8 grants jurisdiction to the Superior Court “of all causes of divorce or nullity and of alimony and maintenance * * This deals with subject matter. Section 9 deals with nullity when “either party is a bona fide resident of this state at the time of the commencement of the action” and process is served upon the defendant “as prescribed by the rules of the supreme court.” Section 10 deals with jurisdiction over the parties in absolute divorce or in bed and board divorce situations, and service of process is again prescribed by court rule. No' present statute provides expressly for jurisdiction over the parties in separate maintenance actions. Consequently we must look to decisional law and our court rules'.

An order or judgment for the payment of alimony or support is a personal judgment, and it has been the law that process had to be served on defendant personally within the State whether he was a resident or a nonresident defendant. Kase v. Kase, 18 N. J. Super. 12 (App. Div. 1952); cf. Meeker v. Meeker, 52 N. J. 59 (1968).

R. 4:4-5 provides for service of summons on absent defendants, but jurisdiction is limited by this rule to actions in rem or quasi in rem. Mrs. Pressler’s comment to this rule notes that it is “not applicable to service of process on absent or nonresident defendants in matrimonial actions.”

We have no matrimonial rule dealing with service of process in separate maintenance actions. See R. 4:78, which refers to divorce and nullity only. In the general rules governing the civil practice in the Superior Court, R. 4:4^4 particularizes the methods of service to secure in personam jurisdiction over a defendant. By subparagraph (a) service of a summons and complaint shall be made on an individual by, among other methods, delivery of copies “to him personally; or by leaving a copy thereof at his dwelling house or usual place of abode with a competent member of his family of the age of 14 years or over then residing therein.” This rule does not state that this service must be accomplished in this State nor that it cannot be served elsewhere than in this State. Cf. R. 4:4-4(i).

Subparagraph (c) of R. 4:4-4 deals with the service of process on corporations, partnerships and associations. This is the rule, along with subparagraph (d), which vests our courts wtih jurisdiction over nonresidents consistent with due process, under the so-called long-arm theory.

In Roland v. Modell's Shoppers World of Bergen County, 92 N. J. Super. 1 (App. Div. 1966), the Appellate Division held, citing International Shoe, infra, that “due process requires only that in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend Traditional notions of fair play and substantial justice.’ ” The rule has been construed not to be limited to corporations hut to apply as well to individuals.

In J. W. Sparks & Co. v. Gallos, 47 N. J. 295 (1966), a stockbroker’s suit against an individual involving the purchase and sale of stock, our highest court held that there should be no “differentiation” between corporations and individuals in the exercise of jurisdiction under long-arm statutes. After reviewing Pennoyer v. Neff, 95 U. S. 714, 24 L. Ed. 565 (1878); International Shoe Co. v. Washing ton, 326 U. S. 310, 66 S. Ct. 154, 90 L. Ed. 95 (1945); McGee v. International Life Ins. Co., 355 U. S. 220, 78 S. Ct. 199, 2 L. Ed. 2d 223 (1957), and Hanson v. Denckla, 357 U. S. 235, 78 S. Ct. 1228, 2 L. Ed. 2d 1283 (1958), Justice Jacobs said:

Nothing in Hanson, McGee or International Shoe furnishes support for the District Court’s flat differentiation of non-resident individuals from foreign corporations. Nor are we persuaded that there should be such differentiation. As Professor David Currie has pointed out, International Shoe made it clear that the test is “fundamental fairness” to the defendant in the light of his contacts with the forum state, its legitimate interests, and the interests of trial convenience, and that there is no justification for limiting the test to corporations for if it is fair to subject corporations with business contacts in a state to legal action there, it is also fair to do the same with respect to individuals ‘similarly situated’. 1963 U. Ill. L. F. at p. 561 fat 301 ].

Although not previously decided in this State, I see no reason why a long-arm jurisdiction should not be available in a separate maintenance action against a nonresident defendant, given an appropriate factual setting. In this case the State of New Jersey has a legitimate interest in the abandoned wife and child who still remain domiciled here. Defendant’s “minimal contacts” in New Jersey are prima facie established by the weekly column which he writes and submits for publication in the Newark Star Ledger, a local newspaper. It is a continual contact in this State. The court has seen these articles from time to time, which are published along with the author’s picture. He is doing business in this State.

It is therefore my opinion that Chancery has acquired in personam jurisdiction over defendant, and plaintiff may proceed to the orderly prosecution of her case.


author: Babger, J. S. C.

text:
    THE STATE OF NEW JERSEY, PLAINTIFF, v. RAFAEL GARCIA, DEFENDANT.
    Superior Court of New Jersey Law Division — Criminal
    Decided April 26, 1971.

      Mr. Stanley J. Kaczorowslei, Assistant Prosecutor, for the State (Mr. Karl Asch, Union County Prosecutor, attorney).

      Mr. Robert P. Gliclcman for defendant (Mr. Saul C. Schuizman, attorney).
   Babger, J. S. C.

This is an application by the State for an order forfeiting title to a motor vehicle truck, being a 1968 Dodge, Model D-200, Serial No. 1281822629, to the County of Union under the provisions of N. J. S. A. 24:18-38.1, 38.2 and 38.3. The application is before the court on notice of motion, with proofs attached, and served upon defendant’s attorney. In furtherance thereof the court fixed a date for a hearing, at which time the court was informed there would be a stipulation of facts. Consequently, no testimony was taken and the court heard legal argument. B. 1:6-l et seq.

Defendant was indicted for possession of a substantial quantity of marijuana, a violation of N. J. S. A. 24:18-4. Ue retracted his plea of not guilty, pleaded guilty, and was thereafter sentenced on March 26, 1970. As indicated in the stipulation of facts, the amount of marijuana involved, a part of which was found in a false bottom of the truck, was sizable, creating an inference that defendant in the use of the vehicle described was engaged in the trucking of this prohibited drug.

The following facts are stipulated by the State and defendant :

On December 10, 1969, the Linden Fire and Police Departments responded to a fire in a frame dwelling at No. 40 West Elizabeth Avenue, Linden, New Jersey, which was occupied by defendant, Rafael Garcia, and his family.
While the 'fire was being extinguished, a large quantity of marijuana was discovered in the dwelling. Another quantity of marijuana was discovered in a false bottom of a pickup truck parked behind the dwelling.- Photographs showing the false bottom and its contents have been presented to the Court.
The truck is described as being a 1968 Dodge bearing Arizona registration plate JC-1290, and owned by the defendant, Rafael Garcia, with no liens thereon.
The total weight of the marijuana was 899 pounds.
The defendant was indicted for the possession of the marijuana, to which he pleaded guilty and was sentenced.
Subsequently, the State moved, on notice to defendant, for forfeiture of the truck.

The State’s proofs indicate that there are no other suits or proceedings pending and undetermined in any court of competent jurisdiction seeking a recovery or return of the property concerned. This is required by N. J. S. A. 24:18-38.3.

The property was seized by the County of Union as the result of defendant’s arrest and has since been in its custody. N. J. S. A. 24:18-38.1 and 38.2. This application is brought under the provisions of N. J. S. A. 24:18-38.3.

Two types of forfeiture of property are judicially recognized in the law: (1) common law (or judicial) forfeiture, and (2) legislative (or statutory) in rem forfeiture. The common law forfeiture depended largely on the owner’s conviction for treason or felony. Statutory forfeiture is limited to an in rem proceedings against the offending property which is condemned as such as though it had itself committed the criminal act. Farley v. $168,400.97, 55 N. J. 31, 36-38 (1969). The aim of the forfeiture is to prevent the use of such property in criminal offenses and to penalize directly the property and indirectly the owner for such use or permitting such use. The law has always disfavored forfeitures; statutes granting the right are strictly construed, but are generally recognized where the police power of the state is being exercised. Berry and Ackley v. DeMaris, 76 N. J. L. 301, 307-312 (Super. Ct. 1908) ; 36 Am. Jur. 2d, Forfeitures and Penalties, at 615-616. The divestiture of title takes place at the time of the commission of the offense, the seizure or the final judgment of forfeiture. State v. Moriarity, 268 F. Supp. 546, 562 (D. Ct. N. J. 1967).

In Farley, supra, Chief Justice Weintranb stated:

In short, then, when a statute provides for a forfeiture, the forfeiture takes place upon the occurrence of the forbidden act or omission unless the statute provides otherwise, and the sovereign’s title is in no sense inchoate because procedural due process requires an opportunity to dispute the claim of forfeiture in a judicial proceeding. The judgment in such a proceeding simply resolves a title contest, as it does in other settings, as when the situs of ownership depends upon the construction of a will or a deed, or upon a relationship to a deceased, or upon adverse possession. The judgment which settle-s the dispute does not initiate the title; it serves only to confirm the title by dissipating claims against it. [at 55 N. J. at 40]

It is defendant’s contention that any forfeiture under N. J. 8. A. 24:18 — 38.1 through 38.3 is unconstitutional, in that these sections of the statute are vague and confusing and deny due process under the Fourteenth Amendment, and do not provide for any notice to any interested party of the seizure or forfeiture. Defendant relies on Commercial Credit Corp. v. Congleton, 21 N. J. Super. 88 (Cty. Ct. 1952). A later case passed this issue. Ben Ali v. Towe, 30 N. J. Super. 19, 25 (App. Div. 1954). Commercial Credit held that N. J. S. A. 24:18-38.1 through 38.3 were unconstitutional for vagueness and the confusing provisions contained therein, and further, for lack of provision for any notice to any interested party, resulting in a denial of due process.

This court is satisfied as a result of the cases hereinafter cited that the principles set forth in Commercial Credit, that statutes relating to forfeitures which do not provide for notice deny due process, is not the prevailing rule in this State, particularly where the proceedings are in rem, Haney and Scattergood v. Compton, 36 N. J. L. 507, 522 (E. & A. 1873), and has been at least overruled by the cases hereinafter cited. This court, upon a reading of the sections of the statute cited, does not find the vagueness or confusion referred to and indicated in the Commercial Credit case. The language of the sections of the statute referred to is not set out at length because it is fully stated in the cases herein cited.

The court in Commercial Credit appears to have grounded its decision principally on the lack of a provision for notice in the statute. It also indicated that it found vagueness and confusion in the language. It should be noted that in the present case there is no claim by any third party — the situation in Commercial Credit.

This court concludes that the question of notice under an in rem forfeiture statute is procedural and not substantive, and, as stated in Barley, supra:

We note that a forfeiture statute need not provide for procedural due process. In this State, the judiciary itself has the constitutional power to provide for the demand of procedural due process, whatever they may be. State v. American-Hawaiian Steamship Co., 29 N. J. Super. 116, 128-129 (Ch. Div. 1953). [55 N. J. at 43, n. 5]

Of course, procedural due process requires notice to those interested in or having any claim upon the property concerned, with a proper opportunity to be heard. Berry and Ackley v. DeMaris, supra, 76 N. J. L. at 306-307; Farley v. $168,400.97, supra, 55 N. J. at 43; Kutner Buick, Inc. v. Strelecki, 111 N. J. Super. 89, 102 (Ch. Div. 1970). The court is satisfied that in this case the State has satisfied due process through its notice of motion and the hearing provided by this court.

This court finds that the motor vehicle described under the provisions of the cited statutes has, because of its illegal use, been forfeited to the County of Union, and title thereto is accordingly ordered transferred to it; that the statute is not vague or confusing, or unconstitutional for lack of any notice provision since this is procedural.


text:
    JAMES DUNBAR, PLAINTIFF-APPELLANT, v. DAVID B. KELLY, SUPERINTENDENT OF THE DIVISION OF STATE POLICE, DEPARTMENT OF LAW AND PUBLIC SAFETY, STATE OF NEW JERSEY, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued January 26, 1971
    Decided May 4, 1971.

      Before Judges Lewis, Matthews and Mintz.

      Mr. Thomas J. Savage argued the cause for appellant {Mr. Paul R. Williams, Jr., attorney).

      Mr. Theodore A. Winard, Deputy Attorney General, argued the cause for respondent {Mr. George F. Kugler, Jr., Attorney General of New Jersey, attorney).
   The opinion of the court was delivered by

Matthews, J. A. D.

Plaintiff appeals from an order of the Division of State Police which dropped him from the rolls of the New Jersey State Police, effective April 15, 1910. We are concerned with an interpretation of N. J. S. A. 53:1-8 and 53:1-8.1.

Plaintiff was sworn in as a state policeman for a two-year term on April 15, 1966. On April 15, 1968, he was reappointed for a second two-year period. See N. J. S. A. 53 :l-8.

During May 1969 plaintiff apparently committed some errors in connection with the investigation of the murder of two young women whose motor vehicle was found abandoned alongside the Garden State Parkway. The precise nature of the alleged errors and/or omissions is not clear. For the purposes of this appeal, however, we accept the fact that the Division of State Police believed plaintiff in some manner breached approved State Police procedures in connection with the investigation. No charges were ever brought against plaintiff for these alleged breaches of procedure. Instead, at the conclusion of the second two-year term he was advised he was not to be reappointed.

The two statutes involved here provide for the appointment and removal of officers in the State Police and for the granting of tenure of state policemen. They read as follows:

N. J. S. A. 53:1-8

All the officers and troopers enumerated in section 53 :l-5 of this title shall be appointed or reappointed by the superintendent for a period of two years, and shall be removable by him after charges have been preferred and a hearing granted. Any one so removed from the state police for cause after a hearing shall be ineligible for reappointment.

N. J. S. A. 53 :1-8.1

Any member of the department of state police who has or shall hereafter serve continuously as such member for a period of five years shall thereafter continue in such membership during good behavior.
The term “member” as used in this section shall be taken to mean and include all officers and men of the state police except the superintendent, whose term is fixed by law.

Plaintiff argues that a proper interpretation of N. J. S. A. 53 :l-8 guarantees every State Police officer the right to a preference of charges against him and a hearing prior to his removal. In short, plaintiff would have us interpret the provisions of the statute as requiring a hearing in all cases where the Superintendent of State Police determines not to reappoint a state policeman at the termination of his first or second two-year term.

The State contends that in situations where the Superintendent fails to reappoint an officer when his first or second two-year term has expired, the officer has not been “removed” since the statute does not compel the Superintendent to reappoint. As a corollary, the State contends that an officer may in such cases be dismissed without a hearing.

N. J. S. A. 53 :l-8 provides for the appointment, reappointment and removal of the officers and troopers in the State Police service. N. J. S. A. 53 :1-8.1 provides for the granting of tenure to members of the State Police. It is apparent that the Legislature intended to give the. Superintendent a great deal of flexibility and reasonably unrestricted control in his preliminary evaluation of the members of the State Police force. Thus, the act provides the protection of charges, an opportunity for a hearing and a determination of cause prior to a removal during the two-year period after the first appointment, during the two-year period after his reappointment, if he is reappointed after his second anniversary, and during the one-year period after a second reappointment on his fourth anniversary, until he qualifies for statutory tenure under N. J. S. A. 53 :1 — 8.1. To accept plaintiff’s argument that the Superintendent must prefer charges, grant a hearing, and show cause prior to the denial of a reappointment on the second or fourth anniversary of enlistment would have the effect of granting tenure on a first or second enlistment. This, in our opinion, would be contrary to the clearly expressed legislative intent. Cf. Zimmerman v. Board of Education, Newark, 38 N. J. 65, 75 (1962).

We conclude that there is no obligation on the part of the Superintendent to reemploy a State Police officer or trooper at the completion of either his first or second two-year term. At the end of each of the first and second two-year periods the employment expires unless the trooper is reemployed by the Superintendent. In the absence of express legislation to the contrary, we find no obligation on the Superintendent to reappoint after the expiration of the first or second two-year period. The reasons for failing to reappoint at the end of such periods axe irrelevant, since we find that the Legislature has granted complete discretion in the Superintendent to determine a trooper’s suitability for permanent employment.

The determination of the Division of State Police is affirmed.