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

text:
    CITY OF BAYONNE, DEFENDANT-APPELLANT, v. INTERNATIONAL NICKEL CO., INC., PLAINTIFF-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued November 12, 1968
    Decided December 13, 1968.

      Before Judges Conford, Kilkenny and Leonard.

      Mr. Nicholas A. Pane-pinto argued the cause for appellant.

      Mr. Prospero JDeBona argued the cause for respondent (Messrs. Milton, Keane £ JDeBona, attorneys; Mr. John B. Wefiing, on the brief).

      Mr. Arthur J. Sills, Attorney General of New Jersey, filed statement in lieu of brief on behalf of respondent Division of Tax Appeals (Mr. Charles H. Landesman, Deputy Attorney General, of counsel).
   The opinion of the court was delivered by

Coneoed, S. J. A. D.

The City of Bayonne appeals the cancellation by the Division of Tax Appeals of a personal property tax levied by its assessor for the tax year 1965 on personal property of International Nickel Co. The taxpayer possessed taxable personal property, used in its business, in the Bayonne taxing district on January 1, 1964, the assessing date for 1965 taxes, N. J. S. A. 54:4^-11 (as amended by L. 1964, c. 141), but removed all of it from this State to the States of New York and West Yirginia during thé year 1964, so that none of it was in Bayonne on January 1, 1965 or thereafter.

The action of the Division was predicated on the theory that N. J. S. A. 54:<H, providing for taxation of real and personal property “within the jurisdiction of this State,” precluded the assessment for 1965 by a New Jersey taxing district of personal property which was physically beyond the borders of the State before the calendar year 1965 began. Bayonne contends that the status and location of the property on January 1, 1964, the statutory listing or assessing date for flip tax year 1965, controls as to Bayonne’s right to impose the tax for that year. The taxpayer responds that Bayonne's construction of the tax statute would render it invalid as violative of the due process clause of the 14th Amendment to the United States Constitution.

Our careful consideration of the arguments of the parties and our independent research lead us to the firm conclusion that the taxing district’s appeal must be sustained and the assessment restored. The legislative intention is that property found in the taxing district on the statutory assessing date is taxable therein for the corresponding tax year, although removed therefrom subsequent to the assessing date. Our tax statutes, as thus construed, do not offend due process even where the removal antedates the so-called tax vear.

I

A review of the pertinent legislation should be preceded by the observation that beginning in 1960 there was in this State a period of intense public controversy over, and a number of legislative amendments of the law in respect of the taxation of tangible personal property, especially such as is used in business. See, e.g., Smitz v. Kingsley, 37 N. J. 566 (1962) ; Zilo v. Kingsley, 92 N. J. Super. 37 (App. Div. 1966). Detailed review of all of these enactments, several of which remained in suspension for varying periods of time, need not here be undertaken, as none of this legislation affects the basic principle we find to have characterized our tax law for decades, i.e,., that the tax status of property, whether for purposes of exemption, valuation or assessing location, is fixed as of the assessing date, except where in some instances it has been specifically otherwise provided by the Legislature. See East Orange v. Palmer, 47 N. J. 307, 320-321 (1966).

N. J. S. A. 54:4-l, prior to amendment by L. 1960, c. 51, called for the taxation of “all property real and personal within the jurisdiction of this State [not expressly exempted or excluded]” annually at its true value, and recited that “[a] 11 property shall be assessed to the owner thereof with reference to the amount owned on October first in each year, and the person so assessed for personal property shall be personally liable for the taxes thereon.”

N. J. S. A. 54:4-9, prior to the 1960 amendment, provided: “The tax on all tangible personal property in this State shall be assessed in and for the taxing district where the property is found.”

The 1960 statute eliminated “true value” as the basis for assessment of tangible personal property and introduced a new classification of taxable personal property used in business. The assessing standard for the latter was to be “fair value,” presumed to be the net book value of the property “as of the listing date.” L. 1960, c. 51, §§ 4, 5. Later amendments provided for new and lower valuation bases and tax rates for assessment of various categories of tangible personalty used in business.

The assessing date for the new tax category of tangible personal property used in business was changed by L. 1960, c. 51, § 8 from the prior October 1 to the prior January 1, the act providing that January 1, 1961 “shall be the listing date with respect to taxes payable in the year 1962,” and correspondingly for subsequent tax years. (Eor convenience we use the term “assessing date” rather than “listing date” herein.) This scheme was carried forward through the tax year 1965 and thereafter by L. 1964, c. 141, § 3 (“The taxable value shall be determined as of January 1, 1964, which shall be the listing date with respect to taxes payable in the year 1965,” and correspondingly for subsequent tax years).

Insofar as concerns the place of taxation of tangible personal property used in business, the 1960 act (c. 51) retained the previous basic concept, and called for assessment thereof “at the general tax rate of the taxing district wherein such property is found, for the use of such taxing district.” Section 7, amending B. S. 54:4r-9. This concept as to the place of taxation was continued in L. 1964, O. 141, above referred to, as was the long-existent rule of personal liability for such taxes of the “person lawfully assessed.” (Section 1).

While apparently no New Jersey statute, past or present, can be found expressly to say, in so many words, that tangible personal property is assessable by that taxing district in which it is found on the assessing date, the whole tenor of the taxing statutes as of any given time in our modern history has spelled out that unmistakable intent. It was stated, for example, in Shillingsburg v. Ridgway, 69 N. J. L. 113 (Sup. Ct. 1903), that “visible personal property” is assessable at the place where found “on the day * * * for commencing the assessment” (a then-current paraphrase for “assessing date,” “tax date,” etc.). To the same effect, see Tennant v. State Board of Taxes and Assessments, 95 N. J. L. 465 (E. & A. 1921) (syllabus). This has, to our knowledge, been the practical construction accorded the statutes, over the years, by the taxing authorities of this State on every level, and we are aware of no challenge heretofore to the principle that the statutory assessing date controls the incidence of the legal place of assessment of tangible personal property (subject to qualifying principles as to nontaxable status of such property in the taxing district, as where only temporarily situated, or in transit in interstate or foreign commerce, etc., when found in such taxing district on the assessing date).

Indeed, we do not understand the taxpayer to challenge the foregoing, except in application to a case like this where the property in question has been removed from the state taxing jurisdiction prior to commencement of the calendar tax year. In such instance, so it is argued, the United States Constitution prohibits the levy even if the property was found there on the assessing date; consequently, the taxing statutes should be construed consonantly with the constitutional rule. We address ourselves to that argument.

II

Preliminarily, we observe that in none of the cases cited by the taxpayer or the Division of Tax Appeals is there a square holding supportive of the position asserted. Indeed, we find no prior case in which a court has been asked to determine that property found in a state on the assessing date fixed b}1- the statutes thereof in reference to a particular tax j^ear is constitutionally untaxable by that state or its political subdivisions because not present therein during the tax year.

We deal first with the New Jersey decisions relied upon by taxpayer. It quotes from Bogota v. Brewster Equipment Co., 83 N. J. Super. 586 (App. Div. 1964):

“To allow Bogota to tax tangible personalty located in California, Utah, New York and Pennsylvania on October 1, 1959 and October 1, 1960 would result in a denial of due process of law—such property then being permanently located in those states and employed there in the prosecution of Brewster Company’s business.” (at p. 606; emphasis added)

The foregoing was written in reference to a holding that road construction equipment never within the boundaries of the State was not assessable by a New Jersey taxing district merely because the ofiices of the owner-corporation were situated there. It was held that the property in question was on the respective assessing dates physically located and intended for permanent use and disposal in other states — therefore'had a taxable situs there and not in New Jersey. Actually, the reference to the assessing dates — October 1, 1959 and October 1, 1960 — in the quoted excerpt from the Brewster opinion, is inferential that if the property were in New Jersey on the mentioned taxing dates, it would be assessable in this state.

In N. Y. Central R. R. Co. v. State Dept of Taxation, etc., 137 N. J. L. 288 (Sup. Ct. 1948), cited by the Division and taxpayer, the court, while recognizing the general principle “that the power of the state to tax is limited to subjects within its jurisdiction” (at p. 294), was confronted only with the question whether floating equipment of the railroad taxpayer used for transportation of freight in the Hudson Eiver and New York Harbor was validly taxed by New Jersey under the Railroad Tax Law of 1941, which provided for a formula of assessed valuation based upon proportionate time of presence of the equipment in this State. The court sustained the tax as against a contention that the sole taxable situs of the property was New York, where the owner corporation was domiciled. It is of present interest that there was no question raised concerning the validity of the statutory formula which based the proportionate valuation aforementioned on experience during the calendar year preceding the tax year. In other words, the incidence of location of the property during the lax year was irrelevant to the validity of the assessment.

The leading federal decision for the proposition that a state’s effort to assess property beyond its borders offends the due process rights of the taxpayer, and cited by the respondent herein, is D. L. & W. R. Co. v. Commonwealth of Pennsylvania, 198 U. S. 341, 25 S. Ct. 669, 49 L. Ed. 1077 (1905). The taxpayer was subjected by Pennsylvania to a corporate capital stock tax without allowing it a deduction for coal owned by the company which, by the time of the assessing period, referred to in the opinion as the “time the appraisement was-made” (at p. 345, 25 S. Ct., at 669), had been transported out of the state and was being held by the taxpayer elsewhere awaiting sale to the company’s customers. The United States Supreme Court held that the taxation of the capital stock was, in effect, a taxation of the company assets, including the coal in question, and therefore, to the extent that the assessed valuation reflected the value of tangible property beyond the borders of the state as of the time of statutory tax appraisal of the property, it constituted a taking of the taxpayer’s property without due process of law. It is apparent from the court’s analysis that, far from supporting the present taxpayer’s position, the decision implies the contrary. It holds that the critical time for determining whether the property is constitutionally untaxable by the state because absent is the time as of which the statutory appraisal is to be made (in other words, the assessing date).

“making the different prices of the stock at different times in the year, and the average price thereof, and otherwise following the provisions of the statute, simply makes a way of finding the value of the stock between the 1st and 15th of November in . each year. That is the material time when the value is to be ascertained, and at that time this coal was not in the state.” (at pp. 357-358, 25 S. Ot., at p. 674).

It is to be noted that the result of the decision was that Pennsylvania lost the tax even though the coal, or part of it, was within its borders at some time or times during the tax year, for the sole reason that it was not present there as of the assessing date. For the same result, in a case where the assessing date was fixed at the beginning of the tax year, see Overstreet v. Ty-Tan, Inc., 48 So. 2d 158 (Fla. Sup. Ct. 1950). The present Bayonne assessment accords with the rule of the D. L. & W. R. Co. case, since the property in question was in Bayonne on the assessing date.

Other decisions of the United States Supreme Court cited by respondent for the constitutional rule espoused are not here helpful, since none of them involves any question concerning the determinative character of the statutory assessing date in relation to the absence of the taxed property from the taxing jurisdiction. See Norfolk & Western Railway Company v. Missouri State Tax Commission, 390 U. S. 317, 88 S. Ct. 995, 19 L. Ed. 2d 1201 (1968); Frick v. Commonwealth of Pennsylvania, 268 U. S. 473, 45 S. Ct. 603, 69 L. Ed. 1058 (1925); Union Refrigerator Transit Co. v. Commonwealth of Kentucky, 199 U. S. 194, 26 S. Ct. 36, 50 L. Ed. 150 (1905).

In the closely analogous field of constitutional limitation of state taxing power in respect of goods being shipped in foreign commerce, both the courts and all the parties involved in Empresa Siderúrgica, S. A. v. County of Merced, 337 U. S. 154, 69 S. Ct. 995, 93 L. Ed. 1276 (1949), affirming the decision of the California Supreme Court, 32 Cal. 2d 68, 194 P. 2d 527, 11 A. L. R. 2d 934 (1948), assumed without question that the exempting export status of the property in question was to be determined as of the California statutory tax date (March 5, 1945, for the tax year 1945-1946) (337 U. S., at p. 155, 69 S. Ct. 995). It is further significant that the property held taxable by California because not in course of transit as of the tax date was entirely out of the state on an ocean carrier well before the end of the tax year. (337 U. S., at p. 155, 69 S. Ct. 995).

Nor is respondent’s thesis aided by other out-of-state cases it cites. In Brock & Co. v. Bd. of Sup’rs of Los Angeles County, 8 Cal. 2d 286, 65 P. 2d 791, 110 A. L. R. 700 (Sup. Ct. 1937), the court rejected a jeweler’s appeal from a 1935 assessment by the county on part of his jewelry stock-in-trade which he had transported to Hawaii prior to the '£tax date” (March 4, 1935) and brought back to Los Angeles soon after that date. The purposes of the trip were coneedediy two: (a) to show the articles to potential customers in Hawaii and (b) to evade taxation on the property for the year 1935. The taxpayer’s argument was that the motive of removal was irrelevant—the property was excluded from taxation because absent from the state on tax day. The rejection of that position by the court, like the reasoning in our own decision in George M. Brewster & Son, Inc. v. Borough of Bogota, supra, n. 1, was that the removal of the goods from their permanent Los Angeles situs was merely temporary, and thus insufficient to transfer their taxable situs. It is not our position in the instant case that mere presence of personal property within a state at the assessing date is determinative of taxability therein. The presence must be of a permanent character as of that date, as was the case with the present respondent’s property as of January 1, 1964.

In Commonwealth v. Westinghouse Air Brake Co., 251 Pa. 12, 95 A. 807 (Sup. Ct. 1915), also cited by respondent, the significance of the assessing date was not an issue. The case simply follows the general, undisputed rule precluding taxation of property permanently beyond the borders of the taxing state.

The controlling significance of the assessing date was adjudicated in Overstreet v. Ty-Tan, Inc., supra, and also in Stebco, Inc. v. Gillmouthe, 189 Or. 427, 221 P. 2d 914 (Sup. Ct. 1950), certiorari denied 340 U. S. 920, 71 S. Ct. 358, 95 L. Ed. 665 (1951), a case primarily concerned with a contention that the goods taxed were exempt as being in the course of interstate commerce, where it was said (221 P. 2d, at p. 919) that “the law presumes that all property, such as that before us, is subject to taxation at the place where it was on tax day.”

Reflection concerning the rationale for the due process basis for denying the power of taxation over personal property absent from the state will reflect the lack of merit in respondent’s invocation of the doctrine here. The theory is that for a state which offers no governmental services in relatí on to property, as where it is physically absent from the jurisdiction, to levy a tax on it is so unfair and unjustified as to be tantamount to taking the taxpayer’s property without due process. Union Refrig. Transit Co. v. Kentucky, supra, 199 U. S., at p. 202, 26 S. Ct. 36; “the [due process] question is whether the tax in practical operation has relation to opportunities, benefits, or protection conferred or afforded by the taxing State,” Norfolk & Western R. Co v. Missouri Tax Com., supra, 390 U. S., at p. 325, n. 5, 88 S. Ct., at p. 1001).

The tax the Division nullified here was for governmental services and protection which taxpayer’s personal property was receiving from Bayonne and from New Jersey as of January 1, 1964, when that property was permanently situated in Bayonne. The fact that in the statutory tax scheme the tax is denominated as “for” 1965 and permits the taxpayer to pay it in the latter calendar year does not gainsay the truth of the foregoing assertion. Nor does that fact palliate the escape from tax contribution for the governmental services and protection as of the date referred to if International Nickel Oo. were to succeed in voiding this assessment. The taxes paid by the corporation to Bayonne in 1964 do not cover the obligation, as those were for the protection and services it was receiving as of January 1, 1963. Under our statutory scheme no taxpayer pays taxes for more tax years than the number of assessing dates on which he possesses tangible personalty within the borders of the state.

There is no talismanie quality or significance of constitutional dimension in the “tax year” such that absence from the State of personal property all during that year should automatically invalidate an assessment denominated “for” that year but statutorily based upon location in the State of property upon a certain date preceding, but not unduly remote therefrom, and reasonably referable to that year. The tax here contested does, in the language quoted above from Norfolk & Western R. Co. v. Missouri Tax Com., “in practical operation [have] relation to opportunities, benefits, or protection conferred or afforded” by New Jersey and Bayonne.

While assessing practices in most states vary in respect of the relation in time between assessing, or tax dates, and corresponding tax years, the New Jersey statutes have for a long time fixed assessing dates which antedated the commencement of the tax year. Until 1960, as noted above, October 1 of the prior year was designated the assessing date for both real and personal property, B. 8. 54:4-1, and the date was moved back in 1960 to January 1 of the prior year for tangible personal property used in business. See above. A reasonable time interval between assessing date and tax year has obvious functional justification. In New Jersey statutory theory, the local assessor examines the property on the assessing date and carries on the work of valuation and assessment from then until January 10 following, when he files his completed list of assessed valuations with the county board of taxation. N. J. 8. A. 54:4^35. That body then conducts an administrative review of the assessment lists, and certifies the lists to the local collectors after revising and correcting the assessments contained therein, as may be necessary, on or before May 1. N. J. 8. A. 54:4^55. Taxes assessed are payable quarterly during the tax year. N. J. 8. A. 54:4-66, and assessments are appealable to the county board on or before August 15. N. J. 8. A. 54:3-21. Further appeals to the State Division of Tax Appeals and the Appellate Division of the Superior Court are also provided for.

Under the recent statutory amendments applicable to tangible personal property used in business, a considerable amount of information must be collated before assessment valuation ratios and tax rates for any tax year can be determined for such property. See, e.g., L. 1963, c. 9; L. 1964, c. 141, and L. 1966, c. 138. Presumably, the time period between assessing date and tax year was extended (by moving the assessing or listing date back to January 1 of the prior 3’ear) in order to render the administration of the foregoing revised assessing procedures more convenient and feasible.

In these circumstances, the time spread between assessing date and tax 3rear is not unreasonably great, and respondent does not argue the contrary. We see no reason why, in the light thereof, our statutory scheme should he held vulnerable on due process grounds when applied to exact a tax for personal property permanently present in and receiving governmental services from the municipality and State on and as of January first of a given year mereJ}r because the assessment will not be formally entered in the books and the taxpayer not be billed for and required to pay the tax until the following calendar year, pending which he removes the property from the State.

The assessment in question is valid. The judgment of the Division of Tax Appeals is

Reversed.

       However, mere presence of personal property in a taxing district on the assessing date will not assure its taxability there if it was present there only temporarily. In such case it is assessable at the residence of its owner. George M. Brewster & Son, Inc. v. Borough of Bogota, 20 N. J. Super. 487 (App. Div. 1952).

       It may further be noted that the Railroad Tax Raw, like the Personal Property Tax Act here involved, fixes the assessing date for all property in railroad use at January 1 of the year preceding the tax year. However, it expressly excludes property passing out of railroad ownership between January 1 and October 1, N. J. S. A. 54:29A-17 (presumably to enable it to be assessed locally rather than by the State).

       The Pennsylvania statute provided for assessment of the stock at the value between November 1 and November 15 of each year for the tax year ending in said November. ‘ ;


source: Caselaw Access Project

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

license: Public Domain

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. EVERETT LEROI JONES, CHARLES MCCRAY AND BARRY WYNN, DEFENDANTS-APPELLANTS.
    Superior Court of New Jersey Appellate Division
    Argued December 9, 1968
    Decided December 23, 1968.

      Before Judges Gaulkin, Collester and Labrecque.

      Mr. Raymond A. Brown argued the cause for appellants.

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

Gaulkot, S. J. A. D.

Defendants were convicted and sentenced for the unlawful possession of weapons, IV. J. 8. 2A :151-41, and they appeal. They contend that (1) the court’s charge was improper in that it went beyond permissible comment on the evidence; (2) the arrest and search of defendants was without probable cause, was conducted with excessive force and was otherwise improper, and if guns were found (which defendants deny) they were unlawfully seized; (3) the trial judge was biased against defendants, and his bias pervaded the atmosphere of the trial and affected the jury to defendants’ prejudice, and (4) the sentences were excessive.

Basieallj', the State’s ease was that the so-called “Newark riots” had commenced on July 13, 1967; in the early morning of July 14 police headquarters broadcast an alarm to look for a blue panel truck from which shots were being fired at police; at about 2:30 a. si. a police car occupied by five policemen came upon defendant Jones’ Volkswagen “camper,” described as “green”; the camper had come to a stop, or had been compelled to stop by the police car swinging in front of it, and four of the officers approached the car; the three defendants were in the car, Wynn driving, McCray in the passenger seat in front, and Jones in back. As one officer asked Wynn for his driver’s license and the registration, Officer Gevers shone his flashlight into the camper from the passenger side and saw a revolver on a shelf under the dashboard; the three defendants were then ordered out of the camper; while Jones was getting out, a revolver fell from underneath his tunic; the three were then placed under arrest; a box of bullets was found in a paper bag on the front seat, and six bullets in Wynn’s pants pocket.

Defendants denied that there were guns in the car or on their persons, and claimed that the charges were falsely made by the police to cover up their own misbehavior. Defendants claimed that they had done nothing wrong and were on their way home; they were stopped without cause, dragged from the camper and beaten, either because the police wrongly thought theirs was the “blue panel truck” whose occupants had been firing at police, or because the police (or some of them) knew Jones as a militant, or because the police were tired, nervous, over-worked and resentful of Negroes because of the rioting. Defendants said they were so severely beaten that at least two of them — Jones and McCray — had to be taken to the hospital by the police for medical attention. Defendants argued that consequently, when they realized who Jones was and that defendants had done nothing to deserve the beatings they received, the police, to “cover up,” made the false charge against them of unlawful possession of firearms. Counsel for defendants charged in their summations that the police “fabricated” the story, “put those guns in that car to cover up this brutal beating,” “to justify their action.”

In short, the issue was almost entirely one of credibility — whether the police or defendants were to be believed. Most of the summations of counsel and of the prosecutor were devoted to this one question.

Defendants do not contend that the verdict was against the weight of the evidence. However, they do contend that since credibility was the paramount issue, the judge’s charge was devastatingly improper and fatally unfair. They claim not only that it went far beyond comment on the evidence but that it became a summation on behalf of the State of a type which even a prosecutor would not be permitted to make. They claim the judge in florid language extolled and defended the police while, with sarcasm and scorn, he belittled defendants and their contentions. Beyond that, and most important, they claim that the charge was an exhortation to the jury to support the police by convicting defendants.

To be fair to the State as well as to defendants, it is necessary to reproduce without a break what we deem to be the most critical portion of the charge. The judge said (paragraph numbering ours):

“1. You saw and heard each of these officers testify. The defendants would have you believe that they are prevaricators and that they committed the most flagrant kind of perjury when they stated under oath the manner in which they found and removed the two loaded revolvers and the ammunition from the Volkswagen which the defendants occupied at two-thirty a.m. on July 14, 1967.
2. Did they appear to you to be evilly disposed and wicked men who would resort to such calumny? Is it conceivable that these five men in blue would confer and agree together to commit such an unconscionable, outrageous act? In the final analysis, ladies and gentlemen, what interest did these officers have at the time of the arrest other than to restore law and order under extremely hazardous conditions ?
3. By the same standards, consider, if you will, the demeanor of the defendants and their interest in the outcome of this trial. Did they testify with candor? Were their answers responsive and forthright or were they evasive? Do you believe that Jones was riding on the front seat in order to receive instructions in the operation of his motor vehicle between the hours of eleven-thirty P.M. and two-thirty a.m. or was this testimony introduced merely in an attempt to contradict and discredit the testimony offered by the ofiicers that Jones was pulled out of the rear of the car?
4. I charge you that you are to consider all of the evidence in this case including the exhibits but you are not to be confused or diverted from the central issue in this case which is the guilt or innocence of these defendants for the illegal possession of two revolvers by the mass of trivia which unfortunately has crept into this trial.
5. What is the fact? That, ladies and gentlemen, is for your determination because as 1 have already indicated you are the sole, the exclusive and the ultimate judges of the facts. You must determine where the truth lies.
6. In connection with your consideration of that problem you will, of course, have in mind the attitude, bearing and demeanor of the several witnesses on the witness stand, the manner in which they gave their testimony, the interest that many of them may have in the outcome of the proceedings, the impression generally that they made upon you as to truthfulness and the inherent probability or improbability of their testimony tested by your own common sense and your own common experience. You must resolve the facts in this case, apply the law to the facts and render your verdict.
7. In the final analysis, ladies and gentlemen, the police officer is the shield of the community against the use of violence and other lawless acts. I also remind you that a crime is a public wrong; that is, a wrong of such a public character that the sovereignty, the authority and the majesty of the entire body politic prosecutes the offender as one who has committed a wrong against its peace and dignity.
Our government cannot exist or survive without the rule of law. ‘Where law ends tyranny begins.’
If you find after due consideration and comparison of all of the evidence and in accordance with the principles of law as I have enunciated them to you that the State has failed to sustain the required burden of proof then it is your duty to find the defendants not guilty but if, on the other hand, you believe the testimony of Officers Gevers, Spiessbach, McCormick, Searpone and Delaney and are satisfied that the State has established the guilt of each defendant beyond a reasonable doubt on the essential elements of the offense alleged in the indictment your verdict should be guilty as charged.”

Defendants object chiefly to paragraphs numbered 1, 2 and 7. We, too, are troubled by them.

The State contends that the judge had the right to make these statements, since at several points elsewhere in his charge he stated that the jurors were the sole and exclusive judges of the facts and the credibility of the witnesses, and that his comments on the evidence were not to be taken as binding on the jury. It is true that a judge may express “his views on the weight and value of evidence even to the extent of an opinion as to guilt, so long as he plainly leaves the sole determination of all factual issues to the jury * * State v. Begyn, 34 N. J. 35, 53 (1961); State v. Rudd, 49 N. J. 310 (1967). However, “The privilege of commenting on the evidence has its inherent limitations, and should not be abused. * * * Nor should a judge assume the role of a partisan advocate. The comment should be temperately and fairly made, and should not be argumentative or contentious to a degree which makes it characteristically an act of advocacy. * * * In criminal cases, the court should be cautious in the exercise of the power of comment with a view to protecting the rights of the defendant.” 53 Am. Jut., Trial, § 589, p. 465.

In Billeci v. United States, 184 F. 2d 394, 87 App. D. C. 274 (D. C. Cir. 1950), the court stated the rules which should govern a judge’s comments upon the evidence. It said:

“The purpose of his comment is to aid, through his experience, the inexperienced laymen in the box in finding the truth in the confusing conflicts of contradictory evidence. In exceptional cases he may even express his opinion upon the evidence, or phases of it. But there is a constitutional line across which he cannot go. The accused has a right to a trial by the jury. That means that his guilt or innocence must be decided by twelve laymen and not by the one judge. A judge cannot impinge upon that right any more than he can destroy it. He cannot press upon the jury the weight of his influence any more than he can eliminate the jurj' altogether. It is for this reason that courts have held time and again that a trial judge cannot be argumentative in his comments; he cannot be an advocate; he cannot urge his own view of the guilt or innocence of the accused.
The public interest requires that persons who have committed crimes be convicted of them. But the responsibility for producing the evidence which will persuade twelve jurors of guilt beyond a reasonable doubt is upon the prosecutor. It is a serious public responsibility, but it is upon the prosecutor and upon him alone. The judge has no part in that task. The prosecutor represents society in the prosecution. The attorney for the defense represents the accused. The judge is a disinterested and objective participant in the proceeding. ‘Prosecution and judgment are two quite separate functions in the administration of justice; they must not merge.’ ”

In Strader v. United States, 72 F. 2d 689 (10 Cir. 1934), Bridges, a federal narcotics agent, testified against defendant doctor charged with unlawfully giving Bridges prescriptions for narcotics. The defense was entrapment. The court described the conflict in the evidence as follows:

“Bridges, testifying with respect to the three sales made to him, stated that he was not an addict and did not say or indicate on any of the occasions in question that he was; that he told appellant he wanted a prescription; that no physical examination was made of him; and that the prescription was readilj" furnished on payment therefor at the rate of $1 per grain. On the other hand, appellant testified that at the time Bridges came to Ms office on the first occasion he was in a serious physical condition, unshaven, unkempt, nervous, and with water running from his eyes; that a careful ph3'sical examination was made of him, having particular reference to his pulse, heart beat, and nervous reflexes; that he said he was an addict and used about two grains of morphine daily, and that he was in great bodily pain; that in appellant’s belief it was necessary to provide morphine by means of the prescription in order to relieve his suffering; * *

The trial court charged the jury:

“ ‘II hat purpose 3Vould Bridges have, then, for making a false statement? The maintenance of his position does not depend on his making false statements, and you may therefore give to the testimony of Bridges the same weight and credibility that you would give any other person under similar circumstances, and it is for you to determine whether or not you will believe the statements made by Bridges and corroborated by Blanche Baker are true. On the other hand, you may, in giving consideration to the weight and credibility of the testimony of the defendant, you may consider the fact that he is defendant in this case. * * * you may take into consideration the fact that if he were guilty, what kind of a statement he would make, and is his interest in this case such as would lead him to make an untrue statement to secure his acquittal.’ ”

The Circuit Court of Appeals reversed, even though this portion of the charge was not specifically objected to. The court said:

“The instruction went an arrow’s flight beyond the permitted bounds of fair and helpful analysis of the evidence or comment upon it as an aid to the jury in arriving at a just verdict. It singled out the testimony of Bridges and told the jury that there was no motive for him to testify falsely, that there was such a motive on the part of. appellant, and it was -intimated in a pointed way that for such reason false testimony might be expected from him. That was argumentative and prejudicial. Minner v. United States, supra [10 Cir., 57F 2d 506] ; Yoder v. United States (C. C. A. [10 Cir.]) 71 F. 2d 85; Quercia v. United States, 289 U. S. 466, 53 S. Ct. 698, 77 L. Ed. 1321.
* * * If appellant issued the prescriptions in good faith as a physician, believing Bridges to be a bona fide patient, for the purpose of curing disease or relieving suffering, he was not guilty. Boyd v. United States, supra, [271 U. S. 104, 46 S. Ct. 442, 70 L. Ed. 857], His own testimony was submitted in an.effort to establish that fact, and, in the very nature of things, it was the focal point of his defense. The instruction segregated the testimony and emptied it of effect. We think the error was sufficiently serious that it should be corrected, even though no specific exception was taken at the time.”

See also Starr v. United States, 153 U. S. 614, 14 S. Ct. 919, 38 L. Ed. 841 (1894), and the annotations in 95 A. L. R. 789 and 113 A. L. R. 1308.

As Justice Proctor said in Village of Ridgewood v. Sreel Investment Corp., 28 N. J. 121, 132 (1958) with reference to the parallel right of a judge to question witnesses:

“* * * ‘the power to take an active part in the trial of a case must be exercised by the judge with the greatest restraint, especially before a jury.’ There is a point at which the judge may cross that fine line that separates advocacy from impartiality.”

See also State v. Guido, 40 N. J. 191, 207-208 (1963).

As Chief Justice Weintraub said in Guido:

“It is difficult to review a charge of unfairness upon a dry record. A person’s manner may negate a barb his printed word seems to hold, just as it may supply a sting the record will not show.” (at p. 208)

We think that here the dry record shows that the charge went unfairly beyond mere comment on the evidence. The import of the charge was not only that the judge believed the testimony given by the police, hut that he thought the jury should do likewise. And paragraph 7 of the charge was clearly no comment on the evidence but rather a reason for accepting the police testimony, not because of its believabilitv but because the witnesses were policemen. This was obviously improper. Cf. State v. Corbo, 32 N. J. 273 (1960); State v. Walker, 33 N. J. 580 (1960); State v. Bowden, 62 N. J. Super. 339, 362 (App. Div. 1960). Paragraph 7, it must be recalled, came shortly after the judge’s reference to the police witnesses as “these five men in blue.” Witnesses should not be referred to in such terms, for the jury may consider them to be expressions of admiration of the witnesses and certification of their credibility. And, finally, it must be noted that the admonition that “the police officer is the shield of the community against the use of violence and other lawless acts,” and the balance of paragraph 7, followed immediately after paragraph 6 in which the judge directed the jury to consider the interest of the witnesses in the outcome of the case, etc.

The State argues that if the passages complained about by defendants are read in the context of the entire charge, they are harmless. We have studied the entire charge carefully and we find nothing in it which materially ameliorates the prejudice. On the contrary, there are other parts of the charge which we have not mentioned specifically which add to rather than detract from the force of the impropriety. Eor example, although it is admitted that Jones and McCray were treated at the hospital for injuries, at one point in the charge the judge said “except for lacerations indicated in the hospital records, do you believe that the defendants actually suffered the injuries which they relate or is this an attempt to beguile you by gross exaggeration and irresponsible charges?” The reference to the “five men in blue” was in paragraph 2, which not only cast aspersions on the defense but concluded with the rhetorical question “What interest did these officers have at the time of the arrest other than to restore law and order under extremely hazardous conditions?”; paragraph 2 was followed by an overstated derogatory remark about Jones’ testimony in paragraph 3; and in paragraph 4 the judge spoke of “the mass of trivia which unfortunately has crept into this trial” which, in the context of the trial, obviously referred to defendants’ evidence about the alleged beatings and other misconduct of the police.

We find that the motion to suppress the evidence seized was properly denied, for the reasons stated in the opinion of the trial judge.

Since the convictions must be reversed because of the improprieties in the charge, we find it unnecessary to discuss the remaining points raised by defendants.

Reversed and remanded for a new trial.


author: CrALAjm, B. P., J. C. C.

text:
    THE STATE OF NEW JERSEY, PLAINTIFF, v. NORMAN CLARK, DEFENDANT.
    Superior Court of New Jersey Law Division
    Decided December 4, 1968.

      Mr. V. Michael Rossi for defendant.

      Mr. Harold Springsiead, Assistant Prosecutor for the State (Mr. G-uy Galissi, Bergen County Prosecutor, attorney).
   CrALAjm, B. P., J. C. C.

(temporarily assigned). Defendant pleaded non vuli on December 2, 1963 to indictment Ho. • S-94-63 on the charge of homicide. He was sentenced to the New Jersey State Prison for not less than 15 nor more than 25 years. Defendant has filed an application for post-conviction relief on the following grounds:

1. There is newly discovered medical evidence which indicates that his acts were not the natural and probable cause of the death of the victim.
2. His plea of non-wilt was not voluntarily made.
3. Court-appointed counsel was ineffective, insufficient and not of defendant’s own choosing.
4. The reason upon which the trial court based the imposition oí sentence was erroneous, and further, failed to take into consideration the probation report.

The first contention presents a question of novel impression in the State of i\ew Jersey, but first the court will deal with defendant’s claim that his plea of non vult to the indictment was not voluntarily made. An examination of the transcript discloses that the questions propounded and the answers given thereto by defendant reveal that the judge made an exhaustive inquiry on the day the defendant pleaded, to determine whether or not his plea was voluntary and to insure that it was in fact voluntary. The argument that the plea was involuntary is without merit.

As to the contention that court-appointed counsel wras ineffective, insufficient and not of his own choosing, defendant was asked whether he was satisfied with the services of the assigned counsel and he answered in the affirmative. The trial judge exhaustively questioned the accused at the time and made sure he was satisfied with his assigned counsel. The court finds that this claim is completely without merit.

Defendant alleges that he was under tranquilizing medication for “shock and depression upon learning of his wife’s demise” and, as a result of his condition and the effects of the medication, was lacking the requisite mental capacity to enter a plea of non vult to the indictment voluntarily and understandingly. The court rejects this contention. Tranquilizing drugs are also known as ataractic drugs since they are intended to induce ataraxy. The term “ataraxy” means absence of anxiety, or untroubled calmness. American Psychiatric Assn. Committee on Public Information (A Psychiatric Glossary, 1957).

Tranquilizing drugs are drugs used to reduce anxiety and tension without reducing mental alertness. Webster’s New Collegiate Dictionary, (1967). The record shows the plea was entered after defendant had consulted with his counsel, and was not accepted until the trial judge had conducted an exhaustive inquiry into defendant’s comprehension of the nature and consequence of his pleading non vult. After such inquiry the judge determined the plea to be voluntary and that defendant understood exactly what was happening. The proceeding was conducted in open court, under the fairest of conditions and with the assistance of counsel. In State v. Torzillo, 61 N. J. Super. 253 (App. Div. 1960), the court stated:

“A motion to withdraw a plea of non vult should be denied where the plea was entered by defendant or by his counsel in his presence, if defendant knew and understood what was being done and there was absent any circumstance of force, mistake, misapprehension, fear, inadvertence or ignorance of his rights and of the consequences of his plea.” (at p. 261)

In further dealing with defendant’s contention that his plea was not voluntary because he was under the influence of tranquilizers, this court cites United States v. Tom, 340 F. 2d 127 (3 Cir. 1965), where the court held:

The fact that the petitioner was an addict who had been deprived of drugs except tranquilizers for four days prior to the entry of his plea of guilty does not render him per se incompetent to plead to the charges against him.

See also Roddy v. United States, 296 F. 2d 9 (10 Cir.).

Consequently this court finds no basis for concluding that defendant lacked the requisite mental capacity to enter a plea of non vult.

Finally, defendant contends there is newly discovered medical evidence as to the cause of death of the victim.

Dr. Robert M. Livingston testified that he examined the records concerning the victim’s hospital stay and also examined the autopsy reports; that she died as a result of the lack of blood before the operation and insufficient blood transfusions during her stay in the recovery room; that she was not a prime risk for surgery; that had he been the operating surgeon he would have operated a second time (he further criticized the hysterectomy and removal of the cervix), and, that if more Mood had been transfused into her after the operation she would have lived.

Dr. Frank Drews, Jr. testified that he examined and operated on the deceased and saw her in the emergency room; he described the course of the projectile; he testified that there were eight perforations in the small bowel; he described the operation and that the deceased never responded thereto and that she was never without Mood from the moment she entered surgery until her expiration. He described the county physician’s autopsy report. He also described the course of the bullet, the amount of blood and time of the transfusions, and that she died from shock and damage caused by the gunshot wound.

The question of responsibility for homicide where the victim’s death resulted from the intervening treatment or mistreatment of the wound or injury inflicted by the accused, not from the wound or injury itself, is a novel question before a New Jersey court. Consequently an exhaustive search of the authorities in other jurisdictions for guidance in dealing with this novel problem has been made.

“The question is whether, where the alleged victim’s death immediately results from medical treatment or mistreatment of a wound or injury inflicted by the accused, there is the necessary legal connection between the accused’s wrongful act and the result, or whether the medical treatment or mistreatment of the wound or injury is an intervening cause which breaks the chain of causation leading from the accused’s wrongful act to the victim’s death. Host of the cases presenting the question have arisen in jurisdictions having no statute expressly dealing with the effect of medical treatment of an alleged homicide victim’s wound or injury. * * * In those jurisdictions wherein there is no statute expressly dealing with the effect of medical treatment of an alleged homicide victim’s wound or injury, it has generally been held or expressly recognized that one who has inflicted a wound or injury upon another is criminally responsible for his death, notwithstanding that different or more skillful medical treatment might have saved his life, or that death was Immediately caused by a surgical operation rendered necessary by the existence or condition of the wound or injury. In such cases the accused’s initial wrongful act is deemed to retain its eausal character, on the ground that the intervening act of administering medical or surgical treatment was a foreseeable consequence of the accused’s initial act and was dependent upon and arose out of the original cause of death. * * * In these jurisdictions the basic rule is that where a person inflicts upon another a dangerous wound, that is, one calculated to endanger or destroy life, it is no defense to a charge of homicide that death was contributed to by or immediately resulted from unskillful or improper treatment of the wound by attending physicians or surgeons. * * * There are several strong intimations that the basic rule is limited to mere negligent treatment and is not applicable to willful mistreatment. Furthermore, it is generally recognized that gross maltreatment of the wound, which was the sole cause of death, is available as a defense to a charge of homicide, because the wound was not the proximate cause of death. * * *
In the absence of a statute expressly dealing with the effect of medical treatment of an alleged homicide victim’s wound or injury, it has generally been held or expressly recognized that an accused who inflicted upon the alleged victim an injury which is calculated to destroy or endanger life cannot exonerate himself by showing, that different or more skillful medical treatment might have saved the victim’s life, * * * or that death was immediately caused by a surgical operation rendered necessary by the existence or condition of the wound.”

See 100 A. L. R. 2d pp. 772-777; Quillen v. State, 49 Del. 163, 110 A. 2d 445 (Sup. Ct. 1955); State v. Cox, 82 Idaho, 150, 351 P. 2d 472 (Sup. Ct. 1960); Hall v. State, 199 Ind. 592, 159 N. E. 420 (Sup. Ct. 1928); People v. Nerida, 29 Cal. App. 2d 11, 83 P. 2d 964 (Ct. App. 1938); Osborn v. Commonwealth, 6 Ky. Law Rep. 47, 12 Ky. Ops. 649 (Ct. App. 1884), holding that where a wound is calculated to produce death and a surgical operation is performed at the instance of competent physicians, when in their opinion it becomes necessary, and the patient dies, the party inflicting the wound is responsible criminally for the act, although the operation may have been the immediate cause of death.

In Odenal v. State, 128 Tenn. 60, 157 S. W. 419 (Sup. Ct. 1913), the court dealt with this problem in the following manner:

“The rule on this subject, supported by the weight of authority, is that to exonerate the accused from the charge of causing death by a dangerous wound unlawfully inflicted, it must appear, not only that the operation was performed in a grossly negligent and unskillful manner, hut also that it was the sole cause of the death, and not one of a series of intermediate causes, following in the train of injury, the original cause. One who unlawfully inflicts a dangerous wound upon another is held for the consequences flowing from such injury, whether the sequence be direct or through the operation of intermediate agencies dependent upon and arising out of the original cause. One of these dependent occurrences is the necessity of surgical aid, which may eventuate as the immediate cause of death. Surgical aid must be employed, with the attendant risks. Surgeons are not infallible. They are required to have and exercise only reasonable skill, measured by the rule of their art or profession. When the accused inflicts the injury that necessitates the operation, he is held to assume the risk attendant on it. Much is required before the surgeon can be substituted for the defendant.”

In People v. Paulson, 80 Ill. App. 2d 44, 225 N. E. 2d 424 (App. Ct. 1967), where the deceased died from meningitis caused by infection which entered the surgical incision during an operation for a subdural hematoma due to a blow on the head from the defendant, the court held as a matter of law that

“A supervening act will not relieve an accused from responsibility for the death of another unless that act was disconnected from the act of the accused. * * * In the instant ease, according to the uncontroverted testimony, death was caused by an infection which developed during an operation to relieve a hematoma, the hematoma having been caused by a blow to the head allegedly inflicted by the defendant. The chain of events ultimately causing the death of Lee James was set in motion by the act of the defendant, and therefore the resulting infection was not disconnected from the defendant’s act.”

Finally, in People v. Meyers, 392 Ill. 355, 64 N. E. 2d 531 (Sup. Ct. 1946), the court stated:

“The law is that when the State has shown the existence, through the act of the accused, of a sufficient cause of death, the death is presumed to have resulted from such act, unless it appears death was caused hy a supervening act disconnected from any act of the defendant. * * *”

In 1 Hale’s Pleas of the Crown p. 428, it is said:

“But if a man receives a wound, which is not in itself mortal, but either from want of helpful applications or neglect thereof, it turns to a gangrene, or a fever, and that gangrene or fever be the immediate cause of his death, yet, this is murder or manslaughter in him that gave the stroke or wound, for that wound, though it were not the immediate cause of his death, yet, if it were the mediate cause thereof, and the fever or gangrene was the immediate cause of his death, yet the wound was the cause of the gangrene or fever, and so consequently is causa causatic.”

Yew Jersey has no case law on this particular point; the closest it seems New Jersey comes to dealing with this general type of a problem is in State v. Loray, 41 N. J. 131 (1963), where, in dealing with a blow to a person with a preexisting heart condition, we find the Supreme Court looking to the Iowa court and other authorities for guidance and deciding the fact that a victim of an assault is in a weakened condition or suffers from disease and as a result succumbs to a blow which might not be fatal to a person in perfect health does not lessen the criminal responsibility for causing death. We know of no duty imposed upon a victim to supply a guarantee of good health to a robber.

Defendant cites the case of State v. Johnson, 6 W. W. Harr. 341, 175 A. 669 (Del. Sup. Ct. 1934), as the controlling law in this case. The court there said:

“If you [jury] shall be satisfied that the accused unlawfully did inflict upon the deceased the wound, but shall entertain a reasonable doubt whether the wound was one calculated to endanger life and whether the death of the deceased resulted therefrom, or from misconduct of the deceased, or maltreatment of the wound, your verdict should be not guilty of manslaughter, but guilty only if the evidence shall so warrant.”

In the present case, we are dealing with a gunshot wound — certainly a wound that is calculated to endanger human life. The Delaware law on this point can be found in Quillen v. State, 110 A. 2d 445, at p. 454 (Sup. Ct. 1955), which held that:

“If the death of the wounded person resulted from or in the course of treatment by medical men who follow the usual course of practice that good physicians adopt, in an endeavor to heal the patient, the person who has inflicted the wound is chargeable with the death. * * * Now it is one of the ordinary consequences of a wound that a medical man should be called in to treat it; and is one of the probable incidents of medical practice that the patient should die under treatment. And the person inflicting the wound is responsible for this, as one of the consequences which in the natural course of events, results from his unlawful act.”

In tlie present case defendant Clark shot his wife; she received medical treatment which this court finds was in the usual course of practice that good practitioners adopt and, consequently, defendant is chargeable with her death.

Defendant also cites State v. Zelichowski, 52 N. J. 377, (1968), which holds that a homicide conviction could not be sustained without proof beyond a reasonable doubt of a proximate relationship between defendant’s attack on the victim. That case does not apply here. This court finds no reasonable doubt as to defendant’s act and the resulting death of his wife. That act was the sole proximate cause of her death, and the evidence he has produced has not cast the slightest shadow of doubt upon that conclusion.

As a trier of the facts I give to the testimony of the two doctors the weight to which I deem it is entitled, and I may reject their opinion. I find as a fact that the wife’s death was not caused by a supervening act disconnected with any act of defendant.

Finally, as to the contention that the trial judge failed to take into consideration the probation report, the record is clear that defendant was consulted and a proper sentence was imposed.

For all of these reasons the application for post-conviction relief is denied.


author: llitowx, R. Coopjbh, J. S. O.

text:
    THE BOARD OF EDUCATION OF THE BOROUGH OF WOODBURY HEIGHTS, PLAINTIFF, v. GATEWAY REGIONAL HIGH SCHOOL DISTRICT, J. HARVEY SHUE, SUPERINTENDENT OF SCHOOLS FOR GLOUCESTER COUNTY, AND DR. CARL L. MARBURGER, COMMISSIONER OF EDUCATION OF THE STATE OF NEW JERSEY, DEFENDANTS.
    Superior Court of New Jersey Law Division
    Decided December 19, 1968.

      Messrs. Falciani, Cotton & Chell {Mr. Fug ene P. Chell, appearing), for plaintiff.

      Messrs. Hannold Hannold {Mr. Harold W. Hannold appearing), for defendant Gateway Regional High School District.

      Mr. A rthur J. Sills, Attorney General of New Jersey {Mr. Stephen G. Weiss, Deputy Attorney General, appearing), for defendants, J. Harvey Shue and Dr. Carl L. Marburger.
   llitowx, R. Coopjbh, J. S. O.

Plaintiff seeks a declaratory judgment construing the meaning and legal effect, as to it, of L. 1967, c. 74, since amended by L. 1968, c. 29, and now known as A. J. 8. 18J :39-l, el seq. Plaintiff also seeks a determination as to whether it shall ho obligated to pay Gateway Regional High School District (hereinafter “Gateway”) for transporting nonpublic school students who live within the Borough of Woodbury Heights and who attend private, nonprofit schools from kindergarten through sixth grade and also from grades seven through twelve, to such schools as are not more than 20 miles from the residence of such pupils.

The facts are not disputed and all parties have moved for summary judgments.

Defendant Gateway is a regional junior high school and a high school district composed of students from grades 7 through 12 from the Boroughs of Woodbury Heights, Wenonah, Westville and National Park, all in Gloucester County, New Jersey.

Plaintiff (hereinafter “Woodbury Heights”) does not now, nor has it ever, transported or paid for the transportation of any students living within its jurisdiction to any school within or without its jurisdiction 'with the exception of providing certain transportation under B. 8. 18:14—9. When the voters in Woodbury Heights on June 28, 1962 elected to become a part of Gateway the ballot stated specifically that the grades for which they were joining were 7 through 12, inclusive. Thereafter, and down to the present time, none of the pupils from grades 7 through 12, attending Gateway are afforded any public transportation, although that regional district does provide public transportation for its students from the other three municipalities.

On August 17, 1967 Woodbury Heights, having been made aware of the fact that Gateway intended to provide transportation for students within the jurisdiction of Woodbury Heights who attend private, nonprofit schools from kindergarten through grade 6, as well as those from grades 7 through 12, notified Gateway in writing that it would not accept the responsibility of reimbursing Gateway for such transportation, alleging that such transportation was not within the meaning of the statute referred to above. Gateway, nevertheless, is providing such transportation and does intend to charge Woodbury Heights therefor under the provisions of the above act.

On May 26, 1967 Governor Hughes signed into law -4s-sembly Bill No. 21, as amended (L. 1967, c. 74). The bill expanded the then existing school transportation provisions in several substantial respects, beginning July 1, 1967. One portion pertained specifically to regional school district transportation. Thus, it was provided that:

“Whenever any regional school district provides any transportation for pupils attending schools other than public schools pursuant to this act, said regional district shall assume responsibility for the transportation of all such pupils and the cost of such transportation for pupils below the grade level for which the regional was organized, shall be prorated by the regional district to the constituent districts 011 a per pupil basis after approval of such cost by the county superintendent of schools.” N. J. S. 18A :39-l.

Woodbury Heights is the governing body of a school district composed of the Borough of Woodbury Heights. The disti'ict is a “Type II” school district (formerly “Chapter 7”) organized for grades kindergarten through six.

There are residing in Woodbury Heights some nine children who attend private, nonprofit schools in grade levels below grade 7 and who are transported to school pursuant to N. J. S. 184 :39-l. These children, since they live “remote,” are being transported to school by Gateway. In accordance with the requirement of N. J. 8. 184:39-1, the cost of such transportation is being prorated by the regional district among the constituent districts on a per pupil basis, and Gateway has hilled Woodbury Heights for the costs so incurred. Woodbury Heights has challenged this hilling, asserting that since no kindergarten to grade 6 public school pupils residing in Woodbury Heights are being transported, there was no responsibility placed upon it to pay for the transportation by Gateway of private, nonprofit school pupils in grade levels below that for which Gateway is organized (7 through 12).

Woodbury Heights, in its motion for summary judgment, advances the following four main arguments:

L B. 8. 18:14-8, as revised, is not intended to compel the Borough of Woodbury Heights to provide payment for transportation of private school students, grades kindergarten to 6, wherein it does not provide a like service for those attending public schools.

IT. B. 8. 18:14-8, as amended, if intended to compel the Borough of Woodbury Heights to provide payment for transportation of private school students, grades kindergarten to 6, whereas it does not provide a like service for those attending public schools, violates the “equal protection” guarantee afforded plaintiff’s constituent taxpayers under the Fourteenth Amendment of the United States Constitution.

III. R. S. 18:14-8, as amended, reviewed by standards established by recent United States Supreme Court decisions, contravenes the separation of Church and State, as guaranteed by the “establishment clause” of the First Amendment of the United States Constitution.

IY. By joining in the formation of Gateway, Woodbury Heights did not surrender its right to determine who, in its territorial jurisdiction should be transported to school in grade levels below 7.

All defendants contend that N. J. 8. 18A:39-1 is valid and constitutional, and that Woodbury Heights is, by its terms, required to pay its pro rata share of costs incurred by Gateway in transporting the children in question to private, nonprofit schools in grade levels below 7.

The complaint in this action does not specifically raise any issues of constitutional dimension. Indeed, it appears to allege only that N. J. S. 18A:39-1 simply does not require Woodbury Heights to pay any sums for the transportation by Gateway of kindergarten through grade 6, private, nonprofit students residing in Woodbury Heights. Nevertheless, Woodbury Heights’ brief is primarily devoted to a discussion of federal constitutional issues. Defendants contend that plaintiff, being a local school board, is without standing to impugn the constitutionalitjr of the act.

A brief statutory history of this law may prove helpful in understanding and interpreting the intention of the Legislature.

The earliest pupil transportation law in New Jersey was enacted in 1894. See L. 1894, c. 335, § 22. It vested discretion in local boards of education to provide transportation to public school for children living remote and to levy a special tax for that purpose.

In 1900 the law was amended to provide as follows:

“Whenever in any school district there shall be children living remote from any school house, the board of education of such district may make rules and contracts for the transportation of such children to and from school.” L. 1900, O. 98, § 118.

The school transportation law remained in the above form, except for minor changes, until 1941.

In the interim, a substantial question was raised as to whether local school boards were required (rather than simply-permitted) to transport to public school any child living remote therefrom. Prior to 1907, N. J. S. A. 18:11-1 (now N. J. S. 18A.-33-1) provided that “each school district shall provide suitable school facilities and accommodations for all children residing in the district and desiring to attend the public schools therein.” In Board of Education of Freling-huysen Tp. v. Atwood, 73 N. J. L. 315 (Sup. Ct. 1906), affirmed 74 N. J. L. 638 (E. & A. 1906), the court held that a board of education was under no statutory obligation to provide for the transportation of public school children. In 1907 N. J. 8. A. 18:11—1 was amended with the term “suitable school facilities” broadened so as to expressly include “convenience of access to the public schools.” L. 1907, c. 123 § 1. Thus, N. J. S. A. 18:11-1 provided as follows:

“Each school district shall provide suitable school facilities and accommodations for all children who reside in the district and desire to attend the public schools therein. Such facilities and accommodations shall include proper school buildings, together with furniture and equipment, convenience of access thereto, and course of study suited to the ages and attainments of all pupils between the ages of five and twenty years. Such facilities and accommodations may be provided either in schools within the district convenient of aceess to the pupils, or as provided in sections 18:14—5 to 18:14-9 of this title.”

The Legislature specifically stated then that each school district “shall” provide suitable school facilities and accommodations for all children who wish to attend public school in the district and that such facilities and accommodations “shall include * * * convenience of access thereto.” Thus, in the discharge of its mandatory obligation to provide “convenience of access” a board of education was henceforth required to provide free transportation to public school children living remote from the schoolhouse. See Board of Education of West Amwell Tp. in Hunterdon County v. State Board of Education, 5 N. J. Misc. 152 (Sup. Ct. 1927).

In 1941 a most significant change was made in N. J. S. A. 18:14-8. Eor the first time, transportation benefits were extended to children attending nonpublic school. The spirited public reaction created by the 1941 amendment culminated in the landmark case of Everson v. Board of Education of Ewing Tp., 133 N. J. L. 350 (E. & A. 1945) affirmed 330 U. S. 1, 67 S. Ct. 504, 91 L. Ed. 711 (1947), holding that the 1941 amendment to N. J. S. A. 18:14-8 did not transgress the Eirst Amendment of the United States Constitution. As recently noted in Fox v. Board of Education, West Milford Tp., 93 N. J. Super. 544 (Law Div. 1967), the framers of our 1947 Constitution subsequently incorporated the Everson principles into our fundamental law. See N. J. Const., Art. VIII, § IV, par. 3; Fox v. Board of Education, West Milford Tp., supra, at pp 558-559.

In Board of Education, Cent’l Reg’l High School District of Ocean County v. State Board of Education, 27 N. J. 76 (1958), the court held that under N. J. S. A. 18:14-8 a regional high school district had the power to transport children to parochial school even if they were in grade levels below that for which the regional district was created. Such transportation, of course, had to be along the established bus routes under N. J. S. A. 18:14-8.

In the Fox case, supra, the principal question raised was simply whether a local school board had discretionary power under N. J. S. A. 18:14-8 to transport children to nonpublic school along independent routes. The court's opinion disposed of that issue in the negative, upon the basis that it saw no authority for such discretion in the existing legislation. 93 N. J. Super., at pp. 565-566.

L. 19'67, c. 74 was introduced in original form as Assembly Bill No. .21 (hereafter A-21) on January 30, 1967. A-21 did not specifically include regional school districts by name. On March 6, 1967 the Assembly Committee adopted a substitute bill which dearly spells out the intention to include children living within any regional school district. On April 5 and 6 public hearings were conducted on the proposed bill. Woodbury Heights refers in its brief, and apparently relies upon, certain dialogue occurring at the public hearings. The subject of that discussion was whether a school district like Trenton, which bussed no public school students, would be obliged to bus nonpublic school students if the bill became law. Some thought that the amended bill so provided, as did many parents of pupils in parochial schools. It did not. Subsequently, the bill was amended before passage. The Committee Substitute bill under consideration at the time of the public hearings was not chapter 74 as passed in final form. On May 1, 1967 A-21 was passed by the Senate in further amended form. A comparison of chapter 74, with -V—21 reveíais that in final form it provided that whenever any regional school district provides any transportation for pupils attending nonpublic school, the district was to assume responsibility for transporting all such pupils, and that the cost of such transportation for pupils below the grade level for which the regional district was organized was to be prorated to the constituent districts on a per pupil basis. This language did not appear in the original bill.

As noted heretofore, the Central Regional High School case (27 N. J. 76) held that a regional school board could transport pupils to nonpublic school (along established routes) even if they were in grade levels below that for which the regional district was organized. In passing the 196 7 amendment the Legislature saw fit to set forth that inherent power expressly. Plaintiff would have this court unilaterally amend the statute and substitute exactly the opposite of what the Legislature has mandated in clear terms. Courts do not exercise the function of the Legislature. See Bendler v. Bendler, 3 N. J. 161 (1949).

In essence, then, all that the Legislature has done in N. J. 8. 18A :3 9—1 is to expand the scope of its predecessor by effectuating legislatively what the court refused to do judicially in the Fox ease. Ho longer need private, nonprofit school pupils living remote have to depend upon established public school bus routes in order to be entitled to transportation to school. How, so long as any public school'pupil living remote is transported by a school district, including a regional school district — except handicapped, vocational or technical school students —■ all nonpublic school pupils similarly situated are also to be transported. The Legislature not only drew no distinction based upon grade levels, it specifically mandated that they were irrelevant.

Simply stated, there are children residing in the territorial jurisdiction of Gateway who live remote from public school. Since they attend grades 7 through 12, they must, by law, be transported. Some attend grades kindergarten through 6. They, too, must by law, be transported. This requirement existed before enactment of the 1967 amendment and was continued. There also reside in the constituent districts of Gateway, including Woodbury Heights, children living remote from nonpublic school. Before enactment of the 1967 amendment they, too, had to be transported, but only along established public school bus routes. Under the Central Regional decision it mattered not that they were in grades below 7 through 12, for, as Justice Jacobs made quite clear, regardless of the grade level for which a regional school district is established pursuant to N. J. S. A. 18:8-1 et seq. (now N. J. S. 18A:13-1 et seq.), be it 7 to 12, 9 to 12, kindergarten to 12, or any other basis, the transportation statute relates to:

“* * * any district, including a regional board in a regional district; and it does not recognize any distinction based on the, grades being attended by the school children who are resident within the district. * * *” (27 N. J., at p. 80; emphasis added)

Woodbury Heights asserts that before passage of N. J. 8. 18A :39-l, nonpublic school children residing in Woodbury Heights and who lived remote from school were not transported. That is true, but not because of any grade level distinction. These children were not transported simply because there was no established public school bus route for them to travel. As no public school children living in Wood-bury Heights lived remote from school, there were no established public school routes. There are still no such routes in Woodbury Heights, hut this now makes no difference because the Legislature has eliminated that limiting requirement.

Accordingly, viewed strictly as a matter of statutory interpretation, and in light of its antecedents and judicial expositions pertaining thereto, the present school bus law, N. J. S. 18A :39-1, manifestly requires that Gateway transport the children living in Woodbury Heights and who attend grades below 7 in nonpublic, nonprofit schools located remote from their places of residence.

Although not specifically alleged in the complaint, Woodbury Heights maintains that if N. J. S. 18A :39-l is to be construed as defendants insist, and not judicially amended, then it must be deemed violative of the Equal Protection Clause of the Fourteenth Amendment. This contention is predicated upon plaintiff’s belief that the statute provides a benefit, payable from public funds, to private school pupils to the exclusion of public school pupils similarly situated. If the statute did so provide its constitutionality might be suspect. However, since it does not, no equal protection issue exists on this score.

N. J. S. 18A ;39—1 clearly treats all similarly situated pupils equally. The public school students below grade 7 who reside in Woodbury Heights are in a different class from some of their nonpublic school peers; they do not live remote from their schools. N. J. S. 18A :39--l, like its progenitor N. J. 8. A. 18:14-8, is predicated essentially upon a remoteness criteria. No child (other than handicapped), either before or after enactment of chapter 74, could compel expenditure of public funds to transport him to school unless he lived remote therefrom. As recognized by the Everson case, New Jersey parents are required to send their children to school. See N. J. S. 18A :38-25 el seq. They are free, if they so choose, to provide their children with an education equivalent to that which may be obtained in a public school. See State v. Massa, 95 N. J. Super. 382 (Cty. Ct. 1967). N. J. S. 184 :38-25. If a parent, as is his statutory prerogative, wants to send his child to nonpublic school, but the distance to the school requires considerable financial expenditures, then the State may legitimately, as part of a general program, pay for such costs. As noted by the court in Everson:

“It was to meet this mischief that the original statute authorizing the transportation of pupils living remote from the schools was enacted. The statutes looking to transportation became complementary to and in aid of the compulsory education statutes.” (133 N. J. L., at p. 355).

In affirming, the United States Supreme Court iterated this thought, stating that all that N. J. S. A. 18:14-8 did, and properly so, was to assist all parents in getting their children safely and expeditiously to and from any accredited school. See 330 U. S., at p. 18, 67 S. Ct. 504.

Thus, the Legislature has deemed it to be an essential public purpose to benefit children living remote by guarding them against the hazards attendant upon travelling to school. The Legislature, beginning in 1941, did not choose to distinguish between whether a child had to travel to a public school or a nonpublic school, for a child is a child and the hazards of travel do not depend upon the school which the child attends. If a child lives remote from a nonpublic school, and if in the regional school district in which he resides a public school child living remote from school is transported, then he, the nonpublic school child, must also be transported. No equal protection violation exists in these circumstances.

The remaining two issues raised by Woodbury Heights have no merit under existing law and will, therefore, not be further considered.

A judgment will be entered in accordance with these conclusions.


author: Hjeine, J. S. C.

text:
    IN THE MATTER OF DISCIPLINARY PROCEEDINGS AGAINST OFFICER LEONARD GIOGLIO, JR.
    Middlesex County Court
    Decided December 16, 1968.

      Mr. Gabriel Kirzenbaum for Officer Gioglio.

      Mr. Joseph F. Bradshaw for City of New Brunswick.
   Hjeine, J. S. C.

(temporarily assigned). This is an appeal by Leonard Gioglio, Jr., a police officer of the City of New Brunswick, pursuant to N. J. S. A. 40 :47-10, to review his conviction after hearing upon written charges preferred by the chief of police. Two charges were preferred:

(1) Insubordination and absence without leave in that he failed to report for duty in uniform, as directed, at 9 p.m., July 15, 1968. (This charge was claimed to be in violation of sections 2 and 4 of the Police Rules and Regulations.)

(2) Breach of discipline in that he granted an interview to a newspaper reporter which was published in the Daily Home News on July 15, 1968. (This charge was claimed to be in violation of section 50 of the Rules and Regulations.)

In defense of the charges Gioglio now contends that

(a) The rules and regulations are invalid because they were adopted by resolution and not by ordinance of the board of commissioners (New Brunswick is governed by a board of commissioners operating under the provisions of N. J. 8. A. 40-70-1 et seq.)

(b) As to the first charge, his absence was excusable

(c) As to the second charge, the rule is too vague and, therefore, unenforceable

(d) The rule violates his constitutional right of freedom of speech guaranteed by the Eirst Amendment.

The court finds the following facts:

On May 26, 1967 the chief of police issued and served on Gioglio an order requiring him to return to duty with the uniformed patrol effective Monday, May 29, 1967. Upon receipt of this order Gioglio went to Commissioner Valenti, Director of the Department of Public Safety, and discussed with him the continuation of his assignment on a special detective squad. Commissioner Valenti conferred with the chief of police and as a result the order was withdrawn. Later on the chief discussed with the director the need for more officers in uniform to meet the increase in crimes of violence on the streets, with the result that Gioglio was ordered by the chief to report in uniform for patrol duty, commencing with the 9 p.m. shift on July 1, 1968. The order indicated that it was a temporary assignment. This order was not complied with because previous to the date thereof Gioglio was given permission by Ms captain to take Ms vacation from July 1 to July 15.

On July 12 Gioglio received an order from the Chief to report in uniform to the lieutenant in charge of the 9 p.m. shift on Monday, July 15, for assignment to patrol duty. The assignment was to continue until further notice. Immediately after receipt of the order Gioglio again went to Director Yalenti to complain about it. The director advised him that he was aware of the order, it was issued with his consent and that it should be obeyed. Gioglio complained about being required to return to patrol duty and said he would fight the order. He left the director with the impression that he would not obey the order.

On July 14 Gioglio wrote to the director stating that he had accumulated approximately 500 hours of overtime work in the course of his special detective work assignment and requested that he be given leave effective July 15 for this accumulated time, so that he could pursue opportunities for employment elsewhere. He was careful to state that the letter was not to be construed as a resignation. This would come if his pursuits bore fruit. The director turned the letter over to the chief, who responded in writing denying the request for leave and pointed out that plainclothesmen had never been granted leaves of absence to compensate for accumulated hours of overtime work.

On July 15, at about 8:40 p.m., Gioglio called police headquarters on the phone, spoke to the police dispatcher and advised him that he was not reporting for work. When asked by the dispatcher whether he was reporting off as sick, Gioglio replied, “No, I am just reporting off.”

The next evening Gioglio appeared at the meeting of the board of Commissioners to complain publicly against the chief of police. While there he allowed himself to be interviewed by a reporter of the Daily Home News. The next day lie issued a written statement to the press.

Police Rules and Regulations

As far as I can find, our courts have not specifically passed upon the question of whether the rules or regulations governing a police department can only be adopted by ordinance and not by resolution. The question was expressly by-passed by our Supreme Court in Borough of Jamesburg v. Hubbs, 6 N. J. 578, 584, 585 (1951). Cf. Alcutt v. Board of Police Comm’rs. of Trenton, 66 N. J. L. 173 (Sup. Ct. 1901), affirmed 67 N. J. L. 351 (E. & A. 1902); Hofbauer v. Board of Police Comm’rs. of City of East Orange, 133 N. J. L. 293 (Sup. Ct. 1945). But see Antonelli Construction, Inc. v. Milstead, 34 N. J. Super. 449, 456 (Law Div. 1955).

N. J. S. A. 40:41-1 provides,

“The governing body of every municipality may make, amend, repeal and enforce ordinances to establish, maintain, regulate and control a police department and force, and subject to the provisions of articles 3 of this chapter (§40:47-21 et seq.), a paid fire department and force therein; to prescribe and establish rules and regulations for the government and discipline thereof; the appointment, terms and removal of the officers and members thereof, and to prescribe their duties and fix their compensation.”

The present rules and regulations governing the police department were adopted on March 3, 1925 by resolution of the board of commissioners. They were published in printed book form and presumably distributed to all present members of the police force.

The original ordinance establishing the New Brunswick police department was enacted in 1902. By ordinance adopted August 4, 1925 that ordinance was amended to provide for an enlarged police force. Section 2 thereof provided, among other things:

“The Detective Ueutenants, Lieutenants, Sergeants and Patrolmen shall severally perform the duties imposed upon them respectively by the ordinances, orders, rules and regulations as have been or may, from time to time, be adopted for the government and control of the Police Department.”

Tlie city now contends that assuming the rules and regulations can only be adopted by ordinance and not by resolution and, therefore, are of questionable validity, they nevertheless had new life breathed into them by the amendatory ordinance of August 4, 1925. It argues that the rules and regulations were incorporated in the amendator]'' ordinance by reference and, therefore, satisfied the statutory requirement.

The validity of the enactment of the rules and regulations need not be resolved in this case.

Charge of Failure to Report for Duty

The first charge against Gioglio accuses him of insubordination and absence without leave in that he failed to report for duty in uniform as directed by bis Chief.

"The finding of misconduct need not be predicated upon the violation of any particular regulation or rule.” Asbury Park v. Dept. of Civil Service, 17 N. J. 419, 429 (1955) ; In re Emmons, 63 N. J. Super. 136, 140 (App. Div. 1960).

The order to report for duty is, in the opinion of the court, not such a rule or regulation as is within the intendment of N. J. S. A. 40 :47—1. That section has reference to rules and regulations of general tenor and application and does not apply to an order to work a special assignment of indefinite duration. Borough of Jamesburg v. Hubbs, 18 N. J. Super, 5, 11 (App. Div. 1952). A police officer is not free to choose his working hours. He may not accept the benefits entirely discharged from the burden of his employment. Id., at p. 9.

I cannot accept Gioglio’s belated excuse that he failed to report for duty because he was distraught by reason of the events that occurred on the afternoon of July 15. If he was neither physically nor mentally fit for duty that evening, he could very easily have informed headquarters when he called to report “oil” that he reported “off” because of illness. When he called headquarters to report “off” he was specifically asked whether he was reporting off “sick” and he replied, “No, I am just reporting off.”

In my opinion, his failure to report for duty was willful. It was consistent both with his attitude expressed several days before that he intended to fight the order, and the impression he left with the director of the department that he did not intend to obey the order. This attitude is supported by the fact that the next evening, rather than attempting to make amends for his disobedience, he appeared at the meeting of the board of commissioners for the purposes of castigating the police chief and furthering his claim for paid time-off in lieu of compensation for overtime worked.

A police department is a military-type organization. City of Newark v. Massey, 93 N. J. Super. 317, 323 (App. Div. 1967); Klein v. Civil Service Comm’n. of Cedar Rapids, 152 N. W. 2d 195, 200 (Iowa Sup. Ct. 1967). Discipline must be enforced. An officer does not have the unbridled right to determine in his own mind whether a given order or assignment of duty should or should not be obeyed. This would lead to an entire breakdown in discipline and morale that could have very unfortunate results.

The conviction on the first charge is affirmed.

Charge of Interview and Statement to Newspaper

As to the second charge, we have a different problem. Here, Gioglio is charged with a breach of the rules and regulations in that he granted an interview to a newspaper reporter that was published.

Rule 50, claimed to have been breached, provides as follows:

“It will be regarded a breach of discipline for an officer of the Police Department to prepare or publish an interview or subject himself to be interviewed on any business pertaining to the Police Department, except by permission of the Director of the Department of Public Safety or the Chief of Police.”

Assuming arguendo that the rules and regulations were properly adopted, that is, incorporated into the ordinance of August 4, 1925, and hence sufficiently complied with the requirement of N. J. S. A. 40 :47—1, it is contended that they violate the right of free speech guaranteed by the First Amendment of the Federal Constitution and are too vague to be enforceable.

The general rule is now well established that an authorized governmental body may adopt reasonable rules or regulations for the government and discipline of the members of a police department to the end that such members may not be allowed to disrupt or impair the public service. Alcutt v. Board of Police Comm’rs. of Trenton, supra; Hofbauer v. Board of Police Comm’rs. of City of East Orange, supra; see cases collected in the annotations, 91 L. Ed. 787 (1947) and 163 A. L. R. 1358 (1946); and, in addition Klein v. Civil Service Comm’n. of Cedar Rapids, supra; Riley v. Board of Police Comm’rs of City of Norwalk, 147 Conn. 113, 157 A. 2d 590 (Sup. Ct. Err. 1960); DeGrazio v. Civil Service Comm’n of City of Chicago, 31 Ill. 2d 482, 202 N. E. 2d 522 (Sup. Ct. 1964); Flood v. Kennedy, 12 N. Y. 2d 345, 239 N. Y. S. 2d 665, 190 N. E. 2d 13 (Ct. App. 1963); Hayman v. City of Los Angeles, 17 Cal. App. 2d 674, 62 P. 2d 1047 (D. Ct. App. 1936); Board of Education of City of Los Angeles v. Swan, 41 Cal. 2d 546, 261 P. 2d 261 (Sup. Ct. 1953).

While one employed in the public service does not have a constitutional right to such employment, McAuliffe v. Mayor, etc., of the City of New Bedford, 155 Mass. 216, 29 N. E. 517, 518 (Sup. Jud. Ct. 1892); Board of Education of City of Los Angeles v. Swan, supra; Belshaw v. City of Berkeley, 246 Cal. App. 2d 493, 54 Cal. Rptr. 727 (D. Ct. App. 1966), he cannot be removed or suspended from his public employment in disregard of his constitutional right. Pickering v. Board of Education, 391 U. S. 563, 88 S. Ct. 1731, 20 L. Ed. 2d 811 (1968); Wieman v. Updegraf, 344 U. S. 183, 73 S. Ct. 215, 97 L. Ed. 216 (1952); Keyishian v. Board of Regents, 385 U. S. 589, 87 S. Ct. 675, 17 L. Ed. 2d 629 (1967); Fort v. Civil Service Comm’n. of County of Alameda, 61 Cal. 2d 331, 38 Cal. Rptr. 625, 392 P. 2d 385 (Sup. Ct. 1964). In DeStefano v. Wilson, 96 N. J. Super. 592, 598 (Law Div. 1967), the court struck down a fire department rule or regulation prohibiting political activity which it held to he akin to free speech protected by the First Amendment.

The privilege of public employment and the right of free speech are not incompatible, nor are they mutually exclusive. Belshaw v. City of Berkeley, supra. The public employee may speak freely so long as he does not impair the administration of the public service in which he is employed. City of St. Petersburg v. Pfeiffer, 52 So. 2d 796 (Fla Sup. Ct. 1951); Belshaw v. City of Berkeley, supra; cf. Hildebrandt v. Bailey, 65 N. J. Super. 274 (App. Div. 1961).

The newspaper account mainly concerned itself with Gioglio’s request for 500 hours of time off to compensate him for claimed overtime previously worked and the director’s response that the established policy of the department was not to give plainclothesmen accumulated time off because of such an understanding when an officer goes to plainclothes duty. The newspaper story makes one reference to the fact that Gioglio claimed “discontent in the police department, criticized the abilities of superior officers in certain situations.” The claims are not documented nor supported by any factual detail or any specifics to which they may relate.

In Wood v. Georgia, 370 U. S. 375, 82 S. Ct. 1364, 8 L. Ed. 2d 569 (1962), Chief Justice Warren, speaking for the court, said,

“Men are entitled to speak as they please on matters vital to them; errors in judgment or unsubstantiated opinions may be exposed, of course, but not through punishment for contempt for the expression. Under our system of government, counterargument and education are the weapons available to expose these matters, not abridgement of the rights of free speech and assembly.”

Even if it be conceded that a newspaper story such as the one here under consideration be considered as critical of the snperior officers, there is no showing in this case that its publication impaired or disrupted the public service.

Pickering v. Board of Education, supra, further held that statements by public officials on matters of public concern must be accorded Eirst Amendment protection despite the fact that the statements are directed at their nominal superiors, citing Garrison v. Louisiana, 379 U. S. 64, 85 S. Ct. 209, 13 L. Ed. 2d 125 (1964); Wood v. Georgia, supra.

“The burden is upon the governing body to show that there is a compelling public interest which warrants the restriction of First Amendment rights. In the absence of such a showing, these rights are not subject to impairment or destruction. Thomas v. Collins, 323 U. S. 516, 65 S. Ct. 315, 89 L. Ed. 430 (1945) ; Bates v. City of Little Rock, 361 U. S. 516, 80 S. Ct. 412, 4 L. Ed. 2d 480 (1960) ; NAACP v. Button, 371 U. S. 415, 83 S. Ct. 328, 9 L. Ed. 2d 405 (1963) ; Gibson v. Florida Legislative Investigation Committee, 372 U. S. 539, 83 S. Ct. 889, 9 L. Ed. 2d 929 (1963).” DeStefano v. Wilson, supra, at p. 599.

To which may be added Belshaw v. City of Berkeley, supra, and the eases therein cited.

In Pickering the court recognized that the problem for the court in any case is to arrive at a balance between the interests of the public officer or public employee, as a citizen, in commenting upon matters of public concern, and the interest of the state or local government, as an employer, in promoting the efficiency of the public services it performs through its employees. In Wood v. Georgia, supra, the United States Supreme Court weighed the balance in terms of the clear and present danger standard. The court said:

“[0]ut-of-court publications were to be governed by the clear and present danger standard described as ‘a working principle that the substantive evil must be extremely serious and the degree of imminence extremely high before utterances can be punished’.”

It may be argued that a vice of the rule or regulation here under consideration is that in its vagueness it proscribes the officer from preparing or publishing an interview on any business pertaining to the police department without permission of the chief of police or director of the department, and without regard to the contents of such publication or its effect upon the administration of the public service. An officer could be charged with the violation of this rule even though the interview was laudatory or complimentary of the operation of the department. The blanket proscription is tantamount to a total denial of an officer’s right to free speech. So regarded, it may be violative of both the First and Fourteenth Amendments.

“The basic principal is that a statute is bad if it ‘either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application’ Connally v. General Construction Co., 269 U. S. 385, 391, 46 S. Ct. 126, 127, 70 L. Ed. 322, 328 (1926).” State v. Smith, 46 N. J. 510, 518 (1966)

This is not to say that the rule or regulation cannot be drawn in broad terms, provided it is controlled by a sufficient basic norm or standard. It need not be minutely detailed to cover every possible situation. Moyant v. Borough of Paramus, 30 N. J. 528, 553 (1959); Ward v. Scott, 11 N. J. 117, 123, 124 (1952). It would be sufficient if the rule or regulation provided a standard merely in terms that would proscribe such statements or interviews pertaining to the police department that impair the public service or improperly interfere with the due administration of criminal justice. Such activity would undoubtedly constitute conduct unbecoming a police officer, warranting discipline at the hands of the proper authorities. Cf. State v. Van Duyne, 43 N. J. 369, 389 (1964).

However, constitutional questions should not be resolved unless absolutely imperative in the disposition of the litigation; Ahto v. Weaver, 39 N. J. 418, 428 (1963); State v. Salerno, 27 N. J. 289, 296 (1958).

Certainly in this type of proceeding, where this court is sitting only as a statutory tribunal to review the conviction in the departmental proceedings by the Director of Public Safety, and not by reason of any constitutional or inherited common law jurisdiction, the court should coniine itself to an affirmance or reversal of such conviction below. Borough of Jamesburg v. Hubbs, supra, 6 N. J., at p. 582 (1951); City of Wildwood v. Neiman, 44 N. J. Super. 209, 212 (App. Div. 1957); N. J. S. A. 40:47-10. In this type of review this court, in the face of its findings as to the second charge, will not assume to pass upon the constitutionality of the rule or regulation in question. State v. Salerno, supra. Cf. Hildebrandt v. Bailey, supra.

The court finds no objectionable comments in the newspaper account of Gioglio’s interview or in his statement to the press.

1 conclude that the newspaper article containing Gioglio’s statement represents nothing more than an exercise of his constitutionally protected right of free speech for which, in the absence of a showing that his conduct impaired the public service, he cannot be punished under the rules or regulations of the police department, assuming their valid enactment. There is not the slightest proof Gioglio’s statement or interview impaired the administration of the public service of the department of which Gioglio was a member. The conviction on this charge is reversed.

The sentence of this court is that Leonard Gioglio, Jr., on the first charge, be suspended from duty, without pay, for a period of four months from July 15, 1968.