author: Rosenberg, J. C. C.

text:
    THE BOARD OF EDUCATION OF PASSAIC IN THE COUNTY OF PASSAIC, DAVID HAMMER AND ROBERT HOPKINS, INDIVIDUALLY, AND AS TAXPAYERS, AND BOARD OF EDUCATION OF THE CITY OF PATERSON IN THE COUNTY OF PASSAIC, INTERVENOR, PLAINTIFFS v. BOARD OF EDUCATION OF TOWNSHIP OF WAYNE, BOARD OF CHOSEN FREEHOLDERS OF PASSAIC COUNTY, AND BOARD OF TRUSTEES OF PASSAIC COUNTY CHILDREN’S SHELTER, DEFENDANTS.
    Superior Court of New Jersey Law Division
    Decided July 6, 1972.

      Mr. Louis Marion, Jr. for plaintiffs Board of Education of Passaic, David Hammer and Eobert Hopkins (Mr. Robert P. Swartz on the brief).

      Mr. Robert P. Swartz for intervener Board of Education of the City of Paterson.

      Mr. Herman W. Steinberg for defendants Board of Chosen Freeholders of Passaic County and Board of Trustees of Passaic County Children’s Shelter (Mr. Anthony J. Orrioo on the brief).

      Mr. Sylvan Rothenberg for defendant Board of Education of Township of Wayne.
   Rosenberg, J. C. C.

The matters before this court are cross-motions by plaintiffs and defendants for summary judgment. The issues raised are of novel impression to the courts of New Jersey.

In December 1954 the Passaic County Board of Chosen Freeholders adopted a resolution creating a children’s shelter in accordance with N. J. S. A. 9:12A-1 and further provided for the appointment of a board of Trustees in accordance with the statute. The shelter was constructed in Wayne and intended as a temporary facility for delinquent and abandoned or neglected children.

No formal educational program was conducted at the shelter prior to September 1968. In 1968 both the board of trustees of the Passaic County Children’s Shelter and the board of freeholders adopted resolutions providing for an educational program to be instituted at the shelter under the auspices of the Wayne Board of Education. In addition it was provided that the cost of the educational program would be supported on a pro rata basis among the various school districts which had pupils in attendance at the shelter.

The tuition charges for the shelter for the years 1968-69, 1969-70 and 1970-71 totaled $36,256, $45,800 and $37,240, respectively. The decision to apportion said costs on a pro rata basis resulted in assessments against Paterson in the amounts of $26,574, $31,056 and $23,328, and against Passaic in the amounts of $6,901, $10,712 and $8,392 for the same periods. Thus, although there are 14 other municipalities in Passaic County, the school districts of Passaic and Paterson have been assessed with approximately 90% of the cost of the shelter’s educational program.

At first the plaintiff boards of education objected to the charges submitted for the program and resisted payment. After it was threatened to discontinue the education classes, both boards decided to make payments under protest.

The dispute was brought before the court by the instant action in lieu of prerogative writs, commenced by the Board of Education of the City of Passaic and by David Hammer and Eobert Hopkins, individually. At the pre-trial the Board oí Education oí the City of Paterson was granted leave to intervene as a party plaintiff. The complaint alleges that the educational program established at the Passaic County Children’s Shelter is in violation of existing laws and that monies paid by the plaintiff hoards of education pursuant to such program were paid by mistake. Consequently, plaintiff hoards of education seek an accounting, restitution of the monies previously paid, and a restraint upon defendants from collecting additional monies from them for the educational program at the county shelter. Additionally, the individual plaintiffs seek this court to adjudge that the Passaic County Board of Chosen Freeholders, or, in the alternative the Board of Education of the Township of Wayne, is required to provide free education for the children housed at the Passaic County Children’s Shelter.

Under Judson v. Peoples Bank and Trust Co. of Westfield, 17 N. J. 67, 74 (1954), summary judgment may be rendered when the pleadings, depositions and admissions on file, together with affidavits submitted on the motion, show clearly that there is no genuine issue of material fact requiring disposition at a trial. In the instant case there is no factual dispute and judgment may be rendered on the applicable law.

Plaintiffs contend that N. J. S. A. 9:12A-1 places the responsibility of funding the educational program conducted at the county shelter on the Passaic County Board of Chosen Freeholders. This court is in full agreement with such a contention.

N. J. S. A. 9:12A-1, in authorizing the establishment of a children’s shelter, states in part: “* * * the board of chosen freeholders shall provide the funds for carrying on the shelter and for the betterments, improvements and replacements that may be required, in the annual appropriations, but money for new buildings and the equipment thereof and other pe.Tmanent improvements may he raised by bond issue.” Thus the statutory language itself has established that the funds for the operation of the shelter, which in this court’s opinion encompasses the educational program conducted therein, are to be provided by the board of chosen freeholders.

Plaintiff’s contention is further supported by a comparison of N. J. S. A. 9:12A-1 with N. J. S. A. 18A:54-1 et seq., dealing with county vocational schools, and N. J. S. A. 18A:47-1 et seq., dealing with schools for dependent and delinquent children. In both of the last-mentioned statutes, provision is specifically authorized for the receiving school district to collect from the sending school district a sum for the tuition and maintenance of children attending classes within the receiving school district. However, in enacting N. J. S. A. 9:12A-1 the Legislature failed to provide for the payment of tuition for educational programs at county shelters to be made on a pro rata basis by sending school districts. Had the Legislature intended for the sending school districts to be responsible for the tuition costs of pupils at the shelter, it would have so provided as it did with vocational education, N. J. S. A. 18A :54-1 et seq., and detention schools, N. J. S. A. 18A:47-1 et seq. Such silence in failing to so provide is interpreted by this court to mean that the Legislature intended that a county-organized educational program operated at a county facility should be funded by the county through the board of freeholders. Such an interpretation is consistent with the literal meaning of N. J. S. A. 9:12A—1.

Defendants argue that the cost of educating the children at the county shelter should be borne on a pro rata basis by the sending school districts. Defendants have presented two arguments to support their contentions: (1) shelter children are nonresidents of Wayne school district and as such their tuition costs must be reimbursed under N. J. S. A. 18A:38-1 et seq., and (2) the educational program at the shelter consists of a special class under either N. J. S. A. 18A:46-1 et seq. or N. J. S. A. 18A.-47-1 et seq.

Defendants’ first argument is based on N. J. S. A. 18A:38—3, which states that “Any person not resident in a school district, if eligible except for residence, may be admitted to the schools of the district with the consent of the board of education upon such terms, and with or without payment of tuition, as the board may prescribe.” Defendants further contend that the payment of tuition expressed in N. J. S. A. 18A:38-3 is further implemented by N. J. S. A. 18A:3A-19, which provides in part: “Whenever the pupils of any school district are attending public school in another district * * * the board of education of the receiving district shall determine a tuition rate to be paid by the board of education of the sending district.”

This court is not satisfied that N. J. S. A. 18A:38-1 et seq. is applicable to the case at bar for two reasons. The first is that the defendants have not demonstrated that the abandoned or neglected children housed at the shelter have any other residence than that of the shelter. Secondly, the educational program at the shelter does not constitute a “public school of the receiving district.” Although the program is conducted under the auspices of the Wayne School board, it cannot be said to be a school of just one district since it is controlled by the county and has been funded by various municipalities within the county. Due to these factors, this court holds that the educational program at the shelter does not constitute a public school of the Wayne School District and as such the sending school districts are under no obligation to pay tuition for the children attending the program at the shelter.

Defendants’ second argument is that the educational program at the shelter consists of special classes under either N. J. S. A. 18A:46-1 et seq. or N. J. S. A. 18A:47-1 et seq., both of which provide that the sending school district should make tuition payments to the receiving school districts.

Defendants readily admit, however, that N. J. S. A. 18A:47-1 et seq., which is restricted to schools for dependent and delinquent children, is not applicable to all the children at the shelter. This is due to the fact that the abandoned or neglected children housed at the shelter have not been adjudged juvenile offenders. Thus, since N. J. S. A. 18A :47-l et seq. does not apply to all of the children at the shelter, this court is of the opinion that no part of the educational program conducted at the shelter can fall within the statute merely because some of the pupils would qualify for a school for dependent and delinquent children.

The same reasoning is applicable to defeat defendants’ contention that N. J. S. A. 18A:46-1 et seq., which deals with schools for handicapped children, is controlling. In attempting to stretch the coverage of this statute, the defendants contend that the children confined at the shelter fall within the definition of a handicapped child as set forth in N. J. S. A. 18A:46-1 in that all shelter children are “socially maladjusted.” Such a conclusion cannot be accepted. To say that a child is “socially maladjusted” merely because the child was abandoned or neglected by his or her parents is in fact repulsive to this court. Although abandonment or neglect could cause social maladjustment in a child, this court thinks it highly unfair to conclude that all such children are “socially maladjusted.” Thus, since it has not been shown that N. J. S. A. 18A:46-1 et seq. is applicable to all the children housed at the shelter, this court is again of the opinion that no part of the educational program conducted at the shelter can fall within the statute merely because some of the group members would qualify for a school for handicapped children.

In sum, it is this court’s opinion that there is no statutory direction by which the Passaic County Board of Chosen Freeholders is authorized to seek tuition payments from the plaintiff school boards.

Having decided that the plaintiff school boards were under no legal obligation to pay the tuition costs which were assessed against them, this court must now concern itself with the issue of whether the plaintiffs may recover the monies previously paid. Such a question seems to be one of first impression in this jurisdiction.

Plaintiffs argue for restitution on the grounds that the tuition assessments were paid under mistake of law. The general rule is that such payments made by municipal corporations or agents thereof under mistake of law are recoverable.

In his treatise on municipal corporations, McQuillin states that “although the authorities are by no means uniform, the prevailing view seems to be that payments made by a municipality under mistake of law may he recovered.” 17 McQuillin, Municipal Corporations (3d ed. 1968), § 49.62 at 317. In agreement is Corpus Juris Secundum, which provides:

Although there arc decisions to the contrary, the general rule is that payments made by public officers under mistake of law may be recovered back, and that action may be maintained to recover public funds p'Siid without authority, although paid under a mistake of law, regardless of the good faith of the payee.
Similarly, it is generally held that payments made by municipal subdivisions of the state under mistake of law may be recovered back * * *. [70 C. J. S. Payment § 156 at 365 (1951)]

In dealing with the issue of whether the government could recover erroneous refunds, the court in United States v. Hart, 12 F. Supp. 596, 597 (E. D. Pa. 1935), aff'd 90 F.2d 987 (3 Cir. 1937), held that “it is well settled that in case of the government, states, and even municipalities, money paid by mistake may be recovered.” So also, the case of Powell v. Lawlor, 197 Misc. 521, 95 N. Y. S. 2d 193, 194-195 (Sup. Ct. 1950), held that “payment of public funds or trust funds by agents of municipalities is not subject to the general rule that money paid under a mistake of law may not he recovered back.”

The issue not having been previously decided in this jurisdiction, this court will adopt the majority view and hold that municipalities may recover payments made under mistake of law. The reasoning behind such a decision is that this court does not feel that a municipality or subdivision thereof, as the instrument of the people, should be bound by a misinterpretation of the law by the authorities in charge.

Applying the holding of law above to the facts of the case, this court is of the further opinion that the tuition payments were made under a mistake of law. As defined in the case of Flammia v. Maller, 66 N. J. Super. 440, 459 (App. Div. 1961), a mistake of law occurs where a person is truly acquainted with the existence or nonexistence of facts, but is ignorant of or comes to an erroneous conclusion as to their legal effect. In the case at bar the plaintiff school boards paid the tuition payments under protest, but such payments certainly would not have been made had plaintiffs realized the invalidity of the assessments.

Having determined that municipalities may recover payments made under mistake of law and that the tuition payments in the instant case were so made, it is hereby ordered that an accounting be made, that all previously paid tuition assessments be returned, and that the Passaic County Board of Chosen Ereeholders is to provide free education to the children housed at the county shelter.


source: Caselaw Access Project

author: Handler, J. S. C.

license: Public Domain

text:
    MAHLON V. HAMLIN AND HELEN HAMLIN, PLAINTIFFS v. CONSTANTINE MATARAZZO, JR., CYPRESS CONSTRUCTION CO., INC., A CORPORATION OF THE STATE OF NEW JERSEY, MAYOR AND COUNCIL OF THE BOROUGH OE NORTH CALDWELL, PLANNING BOARD OF THE BOROUGH OE NORTH CALDWELL, DEFENDANTS.
    Superior Court of New Jersey Law Division
    Decided June 30, 1972.

      Mr. Harvey B. Pearlman appeared for plaintiffs (Messrs. Friedman, Kates & Uscher, attorneys).

      Mr. Herbert Kramer, appeared for defendants Constantine Matarazzo, Jr., and Cypress Construction Co., Inc.

      Mr. John J. Me Donough, appeared for the defendants Mayor and Council of North Caldwell and Planning Board of North Caldwell.
   Handler, J. S. C.

This is an action in lieu of prerogative writs challenging the validity of the tentative approval of a proposed subdivision under the Municipal Planning Act, L. 1953, c. 433; N. J. S. A. 40:55-1.1 et seq. Plaintiffs are the owners of a lot and dwelling in the Borough of North Caldwell. Defendant Matarazzo is the present owner and defendant Cypress is the contract purchaser of the proposed subdivision. Defendant Planning Board of North Caldwell initially approved the plat and this was affirmed on appeal by defendant, the Mayor and Council of the Borough of North Caldwell. The parties have moved for summary judgment.

The initial application was for the tentative approval of a plat denominated Wind Ridge South Section II. It envisaged the subdivision and construction of 43 single residence structures on the Matarazzo tract, constituting approximately 28 acres of undeveloped farm land. Plaintiffs’ property lies at the lowest elevation of a large water shed or drainage area which includes the Matarazzo tract. Surface waters from this tract flow through a natural drainage ditch called Greenbrook which meanders from the Matarazzo farm on a winding course through public lands owned by the County of Essex, thence through lands located in the adjoining Township of Cedar Grove, returning to defendant borough and through a developed residential area known as “Tall Timbers” which includes plaintiffs’ residence. Green-brook cuts through plaintiffs’ property.

When Tall Timbers was developed the water course over the lot now owned by plaintiffs was realigned. This lot was conveyed in 1955 to plaintiffs’ predecessor in title. Plaintiffs apparently acquired their title in 1960. On the property adjacent to that of plaintiffs this water course has been enclosed in a concrete pipe or culvert so that waters passing through this pipe are discharged into the drainage channel in its natural and unimproved condition as it crosses plaintiffs’ property. Over the years the discharge of these waters onto the Hamlin property has substantially widened and deepened the bed of this ditch and has caused extensive erosion of plaintiffs’ land.

The planning board met on July 21, 1971 to consider the application by Cypress. The plaintiffs objected at that time to the subdivision for the reason that it could not be adequately drained and that it would greatly augment the discharge of draining waters onto their property and exacerbate the erosion of their land. Pursuant to N. J. S. A. 40 :55-1.18, the board on July 28, 1971 adopted a resolution granting tentative approval of the plat subject to certain modifications not pertinent to this litigation. The only reference in the proceedings to the overall drainage situation was contained in a letter dated April 20, 1971 from the borough engineer to the effect that Wind Eidge South Section II could be drained without any problem and that there will be no effect on Greenbrook. flhe factual basis for this conclusion was not adumbrated and there was no mention of any possible erosive or flooding effect on low-lying landowners as a result of the construction of the proposed subdivision. The board itself did not make any factual determinations and its resolution does not indicate whether it considered the adequacy or feasibility of drainage plans, or the impact of draining waters on other properties.

Pursuant to N. J. S. A. 40:55-1.19 the Hamlins appealed this action to the Mayor and Council of the Borough of North Caldwell and a hearing was held on August 10, 1971. A professional engineer, Alonzo Lawrence, testified for plaintiffs. He stated the Hamlins’ property was at the bottom of a drainage area of some 165 acres and expressed the view that the construction of 43 homes will materially affect the erosion condition of the Hamlin property. The basis for this conclusion was that at the present time the rate of absorption of surface water on the Matarazzo farm was estimated at 70% but that with the completion of the proposed development this rale of absorption would be reduced to 6%; thus both the volume and velocity of the surface run-off will increase and the erosion along the banks of the drainage ditch through Hamlins’ property will be aggravated. On cross-examination Lawrence conceded that if the drainage brook had been enclosed years ago, none of the property would have been lost to erosion. At the conclusion of his testimony the borough engineer stated that he differed with Lawrence’s assessment of the amount of the drainage and other factors but had no other comments at that time.

Upon completion of the hearing the mayor and council affirmed the recommendation of the planning board that the subject subdivision be approved and dismissed the appeal of the Hamlins. Included in their resolution were the following findings: (1) the borough engineer has reported that the drainage area of the premises in question is through the existing water course extending through the Euffalo [i. e., Tall Timbers] development; (2) that a well defined and active water course, known as Greenbrook, has existed over said Hamlin’s land, and that the watershed area of the Wind Eidge South Section II is naturally drained through Greenbrook; (3) said Hamlin is under a legal duty to protect his property along said water course; (4) the development of the property delineated on said map for one-family homes is a reasonable use of said premises; (5) the use of said water course for the purpose of drainage of said premises is a reasonable use of said water course.

In this action plaintiffs press the objections initially raised before the planning board. They contend in effect that the tentative subdivision approval is invalid because there was not considered or included therein as a general term or condition any provisions for drainage; and that the tract cannot be subdivided and developed without creating a serious problem of erosion. Defendants on the other hand argue that the proposed subdivision can be adequately drained and that any additional protective measures deemed requisite to a drainage system may be fashioned and required at the time final approval of this subdivision is sought. They further assert that since the status of the drainage ditch over plaintiffs’ property was the subject of another litigation and a resultant consent judgment, this action is moot.

Under the Municipal Planning Act the tentative approval of a plat or subdivision confers upon an applicant a guarantee that any general terms and conditions included therein will not thereafter be modified. Specifically, “[t]his tentative approval shall confer upon the applicant the following rights for a 3-year period from the date of the tentative approval: (1) that the general terms and conditions upon which the tentative approval was granted will not be changed * * N. J. S. A. 40:55—1.18. Provisions for the drainage of a projected subdivision development would constitute such a general condition. N. J. S. A. 40 :55-1.20 provides that “[i]n acting upon plats the planning board shall require, among other conditions in the public interest, that the tract shall be adequately drained * * This is reinforced by the additional statutory directive that the board “shall further require that all lots shown on the plats shall bo adaptable for the intended purposes without * * * peril from flood, * * * [or] erosion * * Id.

The general terms and conditions envisaged by N. J. S. A. 40:55—1.18, including drainage, embrace the most basic, fundamental and significant features of a proposed subdivision—those apects of a development upon which the essential feasibility of the project is predicated. Pennylon Homes, Inc. v. Planning Bd., Stanhope, 41 N. J. 578 (1964); Levin v. Livingston Tp., 35 N. J. 500 (1961). Such basic terms and conditions including adequate drainage are therefore required to be included in a tentative approval and cannot later be altered or modified to the economic detriment of the applicant.

Proper drainage should be resolved before a tentative approval is granted in order to insure a sufficient consideration of the public interest as well as to insulate a developer from any modifications that might seriously affect the economic feasibility of the project. Planning derelictions at the local level, ill-conceived plans and insufficient facilities for drainage stemming from the fractionalization and development of lands have spawned horrendous difficulties at the community level. See Ardolino v. Florham Park Board of Adjustment, 24 N. J. 94, 108-109 (1957); Sum mit v. Horton Corp., 70 N. J. Super. 529, 537 (Ch. Div. 1961). Cf. Hopler v. Morris Hills Regional District, 45 N. J. Super. 409 (App. Div. 1957). Local planning boards have therefore by the Municipal Planning Act been legislatively entrusted to protect and enjoined to secure what is conducive for the public good and welfare. Pennyton Homes, Inc. v. Planning Bd., Stanhope, supra; Levin v. Livingston Tp., supra. In Hilton Acres v. Klein, 35 N. J. 570 (1961), the court considered the extent to which an adequate system of sewage disposal—analogous to drainage—must be resolved as a basis for tentative approval. It noted that the Municipal Planning Act provided a procedure for local inquiry into the problems which may be engendered by a subdivision and that when an application for tentative approval is presented to the local planning board it must study and determine the adaptability of a particular subdivision for proper and effective drainage as well as sewage among other conditions. In discharging its statutory imperative, “the public interest in all its ramifications, both present and future, shall be paramount.” 35 N. J. at 579. It is thus essential that the local planning board assure for the benefit of all lots within the ambit of a subdivision adequate provisions for drainage and protection from flooding or erosion. Under the Municipal Planning Act these matters are the subjects of general conditions and must be considered and resolved before tentative approval is conferred. N. J. S. A. 40:55-1.30. Pennyton Homes Inc., v. Planning Bd., Stanhope, supra; Purich v. Weininger, 73 N. J. Super. 344, 353-354 (App. Div. 1963); certif. den. 37 N. J. 331 (1963); Summit v. Horton Corp., supra.

Plaintiffs assert with justification that neither the planning board nor the governing body required defendants to demonstrate the feasibility of drainage for the proposed subdivision and that in effect the tentative approval vested in them air immutable right to proceed with the development immune from any later superimposed conditions pertaining to a general drainage system. Defendants rejoin, however, by contending that under N. J. S. A. 40:55-1.21 the municipality may obligate the developer as a precondition to final approval to furnish any improvements necessary to provide sufficient drainage. N. J. S. A. 40:55-1.21 provides:

Before final approval of plats the governing body may require, in accordance with the standards adopted by ordinance, the installation, * * of any or all of the following improvements it may deem to be necessary or appropriate: * * *, water mains, culverts, storm sewers, * * *, drainage structures, and such other subdivision improvements as the municipal governing body may find necessary in the public interest.

The requirement that the planning board consider for tentative approval the fundamental capability of a subdivision to be adequately drained is not blunted by the supplemental measures contemplated under N. J. S. A. 40:55-1.21. This section permits the governing body to demand the construction of certain improvements before final approval of a subdivision is rendered. Many of the improvements enumerated in section 21 which relate to drainage would constitute the engineering or construction details involved in the specific implementation of a drainage system and, if deemed necessary by the planning board or governing body, may he required as an incident to final approval. There may be to some extent a gray area, an overlap of considerations pertinent to a drainage system required to he resolved as a general condition for tentative approval under N. J. S. A. 40:55-1.20 and those factors subsumed in a final approval under N. J. S. A. 40:55—1.21. Any ambiguities, however, arising from the theoretical duplication between these statutory sections should be resolved by the courts in favor of the public interest. Pennyton Homes, Inc. v. Planning Bd., Stanhope, supra, 41 N. J. at 585-586. Thus, the particular improvements constituting the implementation of a drainage system may even he foreshadowed or anticipated in general plans for a drainage system. But they are not to be regarded as a substitute for or an equivalent to such overall drainage plans which must be included as a general condition at the earlier and pivotal stage of tentative approval under section 20.

It is to be concluded therefrom that drainage, in all of its essential aspects as it might affect lands within the pale of a proposed subdivision, must be considered, resolved and included as a general condition in any tentative approval under the Municipal Planning Act.

In entertaining an application for tentative approval of a proposed subdivision the planning board should make specific and detailed factual findings upon which it bases its ultimate determination. See, Smith v. Morris Tp. Comm., 101 N. J. Super. 271, 282 (App. Div. 1968). It is to be noted, however, that the statute provides:

If the planning board disapproves any plat, the findings and reasons for such disapproval shall be stated upon the records of the planning board and the applicant shall be given a copy. [N. J. S. A. 40:55-1.18; emphasis added]

This imposes an affirmative duty , upon the planning board in the nature of an explicit instruction to furnish upon the record its findings and reasons if it disapproves a plat. This does not by implication however obviate or negate a comparable requirement if there be an approval of a plat, especially over the specific objections of an interested party such as a neighboring property owner. Such a person would be aggrieved by the action of the planning board and would be entitled to appeal such an approval to the governing body. N. J. S. A. 40:55-1.19. Thus where the administrative proceeding before the planning board assumes an adversary cast, the deliberative process undertaken by the agency at such a hearing should be fully disclosed upon the record. Cf. Handlon v. Belleville, 4 N. J. 99 (1950); In re Borough of Peapack-Gladstone, 11 N. J. Super. 498 (App. Div. 1951); compare N. J. Ins. Underwriting Association v. Clifford, 112 N. J. Super. 195 (App. Div. 1970); N. J. S. A. 52:14B-9, 10. Without complete factual findings and expressed reasons disclosed on the record there can be no intelligent assessment of the local determination upon review. See Hilton Acres v. Klein, 64 N. J. Super. 281, 300 (App. Div. 1960), mod. 35 N. J. 570 (1961).

The procedure followed by the planning board in this respect was inadequate. Neither the resolution itself nor the record of the proceedings explicate the deliberations of the board. While reference was made to a letter report of the borough engineer, this report did not deal with drainage as it might affect land situated as plaintiffs’. The engineer did not testify at the meeting concerning any plans for a drainage system or erosion and Hood control. Moreover the resolution encompassing the board’s tentative approval of the subdivision did not indicate to what extent drainage, erosion, or flood conditions were considered.

In adjudicating an appeal from a planning board’s tentative approval of a plat the governing body must provide a hearing and state its findings and reasons. N. J. S. A. 40:55-1.19. In this ease the position of plaintiffs at the municipal appeal, buttressed by the testimony of a professional engineer, was to the effect that the subdivision could not be developed as indicated in the plat without inevitable and substantial injury to their property. The inquiry at the municipal level therefore should have been whether the plat could he adequately drained without causing unreasonable or untoward erosion and flooding. Cf. Armstrong v. Francis Corp., 20 N. J. 320 (1956). In the face of testimony which forecast this result the governing body should have required the presentation of more evidence on the problems of drainage, erosion and flooding; and it should have determined in the light of all the evidence the extent to which plans for adequate drainage could be crystallized into general conditions incident to the tentative approval. The determination of the governing body as reflected in its resolution discloses that it did not properly or effectively grapple with the issue before it. Its recitals to the effect that a property owner has a legal duty to protect his own property and that there is natural drainage through an existing water course are not dispositive factual determinations. Its statements that a development of the tract for residential homes and the utilization of the existing water course for drainage are reasonable uses constitute mere conclusions.

Where the record presented to a reviewing court is inadequate and the administrative agency has acted under a misapprehension regarding its function, the proper course is to remand the matter for a rehearing and redetermination. Kotlarich v. Ramsey, 51 N. J. Super. 520, 543 (App. Div. 1958). The matters here must he recycled and again brought before the planning board, the planning agency initially responsible for determining the general conditions to be included in a tentative approval. Smith v. Morris Tp. Comm., supra. On such remand, it should require the submission of evidence concerning the adequacy of drainage of the proposed subdivision and whether the potential danger of untoward flooding and erosion can be thwarted or forestalled; it should consider such plans for drainage and determine whether the tract can be sufficiently drained, and it should require such a plan as it may deem satisfactory to be included as a general condition to its tentative approval. Its judgment must be memorialized of record so that a reviewing body or court can fathom its factual and conclusory bases.

Defendants have further asserted that this litigation is moot by virtue of the entry of a consent order settling an earlier suit brought in the Chancery Division of the Superior Court. In that suit plaintiffs sought to enjoin the borough and others (not the defendants here) from building conduits and discharging surface water from another tract of land upon their property and to perform such construction as would protect their property from erosion. In that case plaintiffs moved to amend their complaint to include a cause of action against Cypress, which had contracted to purchase the Matarazzo tract for subdivision. This motion was denied. Thus potential injury from erosion which the Wind Ridge South Section II subdivision might engender, the res sub judice, was not interjected in the Chancery Division suit. The consent judgment entered therein anticipates that certain improvements will be undertaken with respect to the drainage ditch as it crosses plaintiffs’ property. Consequently the execution of this judgment might become germane at the hearing before the planning board on the issue of what would be requisite to an adequate drainage system to be included as a general term or condition to any tentative approval of the subdivision here under consideration. The advantages which might accrue to plaintiffs by the performance of that judgment do not however render moot the within action in lieu of prerogative writs or preclude the relief to which they are entitled.

For the foregoing reasons summary judgment shall be entered against defendants and the matter shall be remanded to the Planning Board of the Borough of North Caldwell for further proceedings consistent with this decision.


author: Johnson, J. S. C.

text:
    STATE OF NEW JERSEY, PLAINTIFF, v. MILTON YORMARK, STANLEY PERWIN, ROBERT MULVANEY, J. L. BRIZARD, DEFENDANTS.
    Superior Court of New Jersey Law Division
    Decided July 12, 1972.

      Mr. Alan Siller, Assistant Prosecutor, appeared for Mr. Joseph P. Lordi, Essex County Prosecutor, attorney.

      Mr. Richard A. Walsh, attorney, appeared for defendant Stanley Perwin.

      Mr. Stephen N. Dermer, attorney, appeared for defendant Robert Mulvaney.
   Johnson, J. S. C.

The four defendants named above were charged with conspiracy to obtain money under false pretenses and the defendants Yormark and Perwin in addition were charged with obtaining money by false pretenses. After a protracted trial the defendants, on January 8, 1971, were found guilty of the various charges by a jury and thereafter each of the defendants was sentenced to a custodial term in the County Penitentiary and fined.

Following the entry of judgment the defendants appealed to the Appellate Division of the Superior Court which affirmed the various convictions.

Three of said defendants filed a petition for certification to the New Jersey Supreme Court which denied the same.

On February 2, 1972 the defendants applied for a stay of sentence to permit them to apply to the Supreme Court of the United States. This stay was granted until March 20, 1972. On March 6, 1972 an application for a stay of sentence was made to said Court which application was denied on March 15, 1972.

On March 17, 1972 a motion was made to this court for a new trial on the ground of newly discovered evidence alleging that the verdict of the jury had been improperly influenced as set forth in an affidavit attached to the notice of motion.

Thereafter this court took testimony on many days and heard the arguments of counsel. Counsel have also submitted briefs which have been considered.

The defendants herein have presented evidence from which this court concludes that after all parties had announced to the court they rested and during the summation an overnight recess was taken. The next morning one of the jurors conferred with the trial judge and advised him that an attempt had been made to have the wife of said juror intercede with said juror on behalf of one of the defendants. Thereafter said juror was interrogated in open court, outside the presence of the other jurors. The juror stated he would not be prejudiced thereby. The defendants moved to dismiss the juror. The trial judge denied said motions and permitted the juror to remain as a member of said jury but admonished him not to disclose the alleged incident to the remaining jury members. After the completion of the summations and charge of the court a jury of 12 was selected pursuant to B. 1:8—2 (c) and the juror in question was chosen as one of the 12 to decide the issues in said case.

On this motion the defendants contend that during the deliberations of said jury the juror in direct violation of the court’s admonition disclosed to some or all of the other jurors that an attempt had been made to influence him. They argue that this misconduct on the part of the juror is capable of tainting the verdict and that said verdict should be set aside. In support of this contention the defendants cite as authority several decisions of this State as well as the federal courts and the Supreme Court of the United States. Among these decisions are State v. Kociolek, 30 N. J. 93 (1955); State v. Levitt, 36 N. J. 266 (1961); State v. La Fera, 43 N. J. 97 (1964); Remmer v. United States, 347 U. S. 227, 74 S. Ct. 450, 98 L. Ed. 654 (1954); Stone v. United States, 113 F. 2d 70 (6 Cir. 1970); United States v. Rakes, 74 F. Supp. 645 (E. D. Va. 1947).

The State, in opposing said motion, does not deny that the alleged misconduct of the juror might have improperly influenced his fellow jurors but argues that the alleged misconduct of the juror was not only improperly instigated by the alleged misconduct of the defendants but was thereafter “discovered” by the continued allegedly improper conduct of the defendants. The State argues that the defendants violated a rule promulgated by the Supreme Court of New Jersey and for that reason no evidence of taint, if it existed, should be permitted to be used by such a defendant to attain that which he would have attained if his first alleged act of misconduct had been successful.

R. 1:16 of the Rules of General Application entitled Miscellaneous Limitations on Attorneys and Parties reads in section 1:

Except by leave of court granted upon good cause shown, no attorney or party shall himself or through any investigator or other person acting for him interview, examine or question any grand or petit juror with respect to the verdict or deliberations of the jury in any action.

Following the filing of the motion for a new trial by the defendants the State filed a motion for permission to examine the jurors. At that time this court noted there was a strong public policy against probing into jury verdicts. Jurors are to be protected against efforts to browse among their thoughts in search of something to invalidate their verdicts and this court stated it would not permit interrogation of any jurors until it could decide how and where the interrogation that apparently had taken place had its genesis.

The court now has had the benefit of the tapes used to record portions of the interviews held with the jurors, transcripts of those tapes prepared at the order of the court by a certified court reporter, and oral testimony taken in open court in the presence of all counsel. The court has had the benefit of observing the demeanor of the various witnesses and is satisfied therefrom that the witness Ronald Porambo was requested by the defendant Milton Yormark to hold said interviews in a planned effort to obtain sufficient information to attempt to set aside the verdict returned by those jurors.

Although the witness Porambo testified that he was simply working on a journalistic assignment and during his interviewing of the jurors in question he uncovered the information which forms the basis of the motion for a new trial, I do not believe his testimony.

Evidence, to be believed, must not only proceed from the mouth of a credible witness, but it must be credible in itself—such as the common experience and observation of mankind can approve as probable under the circumstances. We have no test of the truth of human testimony, except its conformity to our knowledge, observation and experience. Whatever is repugnant to these belongs to the miraculous, and is beyond judicial cognizance. Evidence is generally considered improbable when it imputes to the parties to a transaction, occurring in the ordinary course of business, conduct inconsistent with the principles by which men, similarly situated, are usually governed. Daggers v. Van Dyck, 37 N. J. Eq. 130 (Ch 1883).

The manner in which the witness Porambo testified, his inappropriate laughter during his examination, his hedging when asked direct questions on specific points and his failure to articulate his reasons for the various interviews belies his true purpose. If he were on a journalistic mission as he testified, why did he not complete it rather than turn over the tapes to a defendant with whom he had no connection, as he contended?

There was also produced the testimony of several members of the bar who testified they had nothing to do with the actions of Porambo and were unaware of what he was doing until after he had done it. I am satisfied these attorneys did not initiate the interviews but I am not satisfied they told “the whole truth and nothing but the truth.” These attorneys are men of vast experience. They knew that what Porambo was up to was something they could not be associated with and so they simply closed their eyes in the hope it would go away.

While the State argues that the evidence shows the fine hand of an attorney directing the actions of Porambo and asks the Court to infer that those directions were given by the various attorneys who represented the defendants, I do not so find. The legal directions followed by Porambo were supplied by the defendant Milton Yormark who it must be noted has disappeared and has failed to surrender himself to the Sheriff as required.

The principal question raised on this motion is an interesting and novel one—one which requires a balancing of equities. Eo person should be convicted as the result of impropriety or prejudice. It cannot be said that for a juror to state to his fellow jurors that an attempt to influence him had been made, whether that be the truth or not, has no impact on that juror or the others to whom the information is imparted. In all jurisdictions where fairness and justice reign a verdict tainted by such information should be set aside.

On the other hand the people are also entitled to justice. To permit an accused or someone acting on his behalf to attempt to influence jurors would thwart all justice and prevent all convictions. Should such actions go unstopped? To permit an accused to view members of a jury over a long trial (as here for five months) and see if he thinks one might be approachable and then to contact that juror, would scrap the entire administration of justice.

To compound the problem it would be unthinkable that such an accused be permitted to set aside his conviction by bringing to the attention of the Court his wrongdoing in attempting to influence a juror. Justice must require greater protection for society than that. The Supreme Court stated in State v. La Fera, supra, “when contending values clash in their demands, a balance must be struck, and the balance struck is not to be shown a poor one because in some unknowable cases there may be an injustice.” 42 N. J. at 107.

To permit these defendants to benefit by their own wrongdoing simply shocks my sense of fairness and justice. I for one cannot be a party to that disregard for the rights of so many. It is apparent to me that the conspiracy of which these defendants were convicted did not terminate with their apprehension. The defendant Yormark has continued to work for the benefit of his co-conspirators and while they may not have been privy to the entering of said plot by Porambo they should not benefit by his nefarious acts. The only effective method of preventing such conduct is to suppress the use of that which was learned improperly.

The motions made by the respective defendants for a new trial are denied as are the motions for bail. The motion by the State for permission to interview the jurors is likewise denied. Orders consented to as to form by all counsel should be submitted.


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

text:
    REV. WILLIAM MASON; REV. PAUL KNAUER; JAMES BOYD AND GERTRUDE SYKES, PLAINTIFFS v. CITY OF PATERSON, ET AL., DEFENDANTS. BOARD OF ALDERMEN OF THE CITY OF PATERSON, A DULY ELECTED GOVERNING BODY OF THE CITY OF PATERSON, ET AL., PLAINTIFFS v. ARTHUR C. DWYER, ACTING MAYOR AND PRESIDENT OF THE BOARD OF FINANCE OF THE CITY OF PATERSON, ET ALS, DEFENDANTS.
    Superior Court of New Jersey Law Division
    Decided July 6, 1972.

      Mr. Dennis J. Cummins, Jr., appeared for plaintiffs (Dkt. No. L-l7449-71).

      Messrs. Miller & Beenstra for plaintiffs (Dkt. No. L. 19197-71), (Mr. Leonard 8. Miller appearing).

      Mr. Joseph A. LaCava for defendants City of Paterson, City Clerk, Mayor, Clerk of the Board of Finance and Fire and Police Board (Dkt. No. L 17449-71); and for defendants Arthur C. Dwyer and Board of Commissioners of Assessment of Taxes (Dkt. No. L 19197—71), (Mr. Harry Zax appearing).

      Mr. Charles H. Boemer, appeared for Commissioners of Assessment of Taxes, individually.
   Crane, A. J. S. C.

These are actions in lieu of prerogative writs which have been consolidated. Each of the actions attacks the validity of various aspects of the structure of the government of the City of Paterson.

Since the essential facts are not in dispute the parties have elected to proceed in a summary manner pursuant to the provisions of R. 4:67.

In 1907 the Legislature enacted a series of statutes which were intended to establish a new form of government in the City of Paterson. Lendrim v. Ryan, 98 N. J. L. 322, 323 (Sup. Ct. 1923). Prior to that time the governmental powers were vested in a Mayor and a Board of Aldermen pursuant to the provisions of a special act creating the city charter. L. 1871, c. 325, p. 808 et seq., which was enacted prior to the amendment of the Constitution of 1844 adopted in 1875 prohibiting private, local or special laws. N. J. Const. (1844), Art. IV, § VII, par. 4, N. J. S. A., Const., at 622.

The statutes in question distributed powers formerly exercised by the Board of Aldermen to newly created boards. Grosso v. Paterson, 55 N. J. Super. 164, 170 (Law Div. 1959). L. 1907, c. 45, p. 79, now found in N. J. S. A. 40:174-6 et seq., created the Board of Fire and Police Commissioners. L. 1907, c. 46, p. 89, now found in N. J. S. A. 40:186—5 et seq., created the Board of Finance. L. 1907, c. 62, p. 114, now found in N. J. S. A. 40:175-9 et seq., created the Board of Public Works.

The statute had the effect of stripping the Board of Aider-men of virtually all its legislative powers and vesting them in the newly created boards, all of which are appointed by the Mayor. It is undisputed that Paterson is the only municipality in the State functioning under such a distinctive form of government. Its unique quality was recognized in Fielding v. Board of Ed., Paterson, 76 N. J. Super. 50—57 (Ch. Div. 1962), wherein it was said by Judge Collester:

Paterson of course, has a unique form of government in this State. It is sometimes referred to as the strong type of government, where its primary governmental functions are controlled by boards appointed by the mayor.

Shortly after the enactment of the statutes the Attorney General brought a proceeding in the nature of quo warranto to test their validity. The Supreme Court, in McCarter v. McKelvey, 78 N. J. L. 3 (Sup. Ct. 1909), held that even though the statutes applied only to cities having a population between 100,000 and 300,000, they did not violate the provision of the then existing Constitution relating to private, special or local laws. The decision was affirmed by the Court of Errors and Appeals in Attorney General v. McKelvey, 78 N. J. L. 631 (1910). At that time Paterson had a population of 135,600; Camden had a population of 94,538; and the population of the City of Trenton was 96,815. (See the attached Schedule of Population.) The possibility that Camden and Trenton would shortly fall within the statutory class undoubtedly had a great influence on the decision. The court commented:

In form, therefore, the act is general, and, while at the time of its adoption it may have applied to Paterson alone, the Legislature must have anticipated that the time was not far distant, probably not farther than the census of the current year, when Camden and Trenton would come within the class.” [78 N. J. L. at 626]

With all due deference to the court, its interpretation of the intent of the Legislature was apparently mistaken. It is curious to note that between the time of the argument of the case before the Court of Errors and Appeals, November 24, 1909, and the date the decision was filed, June 20, 1910, the statutes in question were all amended to change the population limits to a range of between 110,000 and 200,000. L. 1910, c. 292, p. 530; L. 1910, c. 293, p. 532; L. 1910, c. 294, p. 524. The statutes were approved on April 13, 1910, taking effect immediately.

In 1920, when the population of Camden had risen to 118,700 and the population of Trenton was 123,356, the Legislature amended the statute relating to the Board of Finance to limit the class to cities having a population between 125,000 and 200,000. L. 1920, c. 308, p. 557. Nothing was done at that time about the population limits as they existed in the statutes creating the Board of Fire and Police Commissioners or the Board of Public Works. However, in 1923 all three statutes were once again amended to establish the population limits between 133,000 and 200,000, L. 1923, c. 1, p. 11; L. 1923, c. 2, p. 13; L. 1923, c. 3, p. 15, where they have remained to date.

Ordinarily trial courts are required to avoid constitutional issues unless their determination is imperative in the disposition of the litigation. Tonsorial Inc. v. Union City, 115 N. J. Super. 33 (Law Div. 1971). Here, however, the lines are clearly drawn, the issue is inescapable.

Acts of the Legislature are presumptively valid. State v. Profaci, 56 N. J. 346, 349 (1970). This is especially so when a statute has been in force for a long period of years. Gibraltar Factors Corp. v. Slapo, 23 N. J. 459, 463 (1957). In relation to statutes dealing with the internal affairs of municipalities based upon a population classification the test is whether “population bears a reasonable relation to the necessities and proprieties of the various kinds of municipal government.” Bucino v. Malone, 12 N. J. 330, 345 (1953). To be valid the classification must “rest upon distinctions that are substantial and not merely illusory.” Raymond v. Teaneck Tp., 118 N. J. L. 109, 111 (E. & A. 1936). An arbitrary classification will not be permitted to stand. Kudlich v. Griffin, 88 N. J. L. 573, 578 (Sup. Ct. 1916). In McCran v. Ocean Grove, 96 N. J. L. 158 (E. & A. 1921) it was stated that:

In our view, an act is equally special whether it confers upon a single municipality substantial powers in addition to those possessed and enjoyed by other municipalities of the same class; or whether, as to a single municipality, it places substantial restrictions and limitations upon the powers conferred while like powers are enjoyed and exercised by other municipalities of the class free from such restrictions and limitations, [at 163]

The context in which a statute operates is an important factor in judging whether a law is general or special. Batistich v. Brennan, 45 N. J. 533, 535 (1965). The substance and necessary operation of the statute must be considered as well as the form. In re Freygang, 46 N. J. Super. 14, 22 (App. Div. 1957), aff’d 25 N. J. 357 (1957). In form the statutes under consideration are general in nature; however, the effect of the various amendments has demonstrated that the legislative purpose was to create a special form of government for the City of Paterson. It is not denied that Paterson’s unique structure of government finds no counterpart in any other municipality of the State. It is conceded that in all other forms of municipal government local legislative functions are performed by elected representatives. When a law by the application of its terms is designed to operate only in a specified locality of the State, satisfactory reasons must be found to exclude it from the prohibition against local laws. Wanser v. Hoos, 60 N. J. L. 482 (E. & A. 1897). Here the legislative history has shown a continuous effort to exclude other cities of the State having nearly the same population from the operation of the act. The objects excluded are of determining significance in deciding whether an act is special or general. Harvey v. Essex County Board of Freeholders, 30 N. J. 381, 389 (1959); Scott v. Bloomfield, 94 N. J. Super. 592, 598 (Law Div. 1967), aff’d 98 N. J. Super. 321 (App. Div. 1967). Yo logical reason can he perceived as to why essentially all local legislative functions in Paterson must be performed by officials appointed by the Mayor while they are performed by elected representatives in all other municipalities of the State. Yor is there any explanation why municipalities of nearly similar size are excluded from the operation of the acts. Cf. Alfred Vail Mut. Ass’n v. New Shrewsbury, 58 N. J. 40, 50 (1971). It is apparent that the classification is illusory and that the constitutional provisions against special laws have been violated. N. J. Const. (1947), Art. IV, § VII, par. 9 and its predecessor, N. J. Const. (1844), Art. IV, § VII par. 4.

It has been suggested by counsel for the city that if a determination of unconstitutionality is made that it should apply only to the amendatory legislation and not to the original enactments of 1907. A glance at the schedule of population will demonstrate the effect of such a suggestion. If the amendments were held invalid and the acts of 1907 permitted to stand, Paterson’s unique form of government would then be inflicted upon Elizabeth, Camden and Trenton. Such a bizarre result is certainly to be avoided. In any event, it is apparent that the arbitrary classifiication existed in the original acts of 1907 as well as in the amendatory acts of 1910, 1920 and 1923, supra.

Plaintiffs have asserted other grounds based upon provisions of the United States Constitution, i. e., denial of equal protection of the laws, denial of a republican form of government, denial of the right of suffrage, and taxation without representation. In view of the determination of the court it will not be necessary to discuss these issues.

In the sixth count of the complaint filed by Kev. William Mason and others, it is contended that the Board of Education of the City of Paterson is “not truly representative of the citizens of the City.” However, the Board of Education was not served with the notice of motion for summary disposition and this claim is deemed to have been abandoned.

The fifth count of the complaint filed by the Board of Aldermen and others deals with N. J. 8S. A. 40:171-174 which provides for the appointment of commissioners of assessment of taxes in cities having a population of between 100,000 and 300,000. Since the statute apparently affects a number of cities other than Paterson, no attack is made upon its constitutional validity. See Livelli v. Hoboken, 78 N. J. L. 245 (Sup. Ct. 1909). However, the plaintiffs contend that N. J. S. A. 40:48-1 requires that such a board “could not come into being until created by the adoption of an ordinance by the governing body,” which has not been done.

The position of the plaintiffs is not tenable. Here the offices themselves were created by the Legislature. The mandatory language of the statute, “there shall be appointed blithe mayor,” leaves no room for doubt. Where an office is created by statute no ordinance on the part of the local governing body is necessary. See Jersey City v. Dept. of Civil Service, 7 N. J. 509, 524 (1951); Handlon v. Belleville, 4 N. J. 99, 108 (1950).

The claims as to the invalidity of the payment of overtime compensation to the Commissioners of Assessment of Taxes is apparently abandoned, the parties having submitted no supporting evidence. In any event, they appear to be of little importance or merit. The claims for counsel fees are not cognizable in this court at this time in view of the provisions of R. 4:42-9.

The changes in local government which will be brought about as a result of the determination in this case undoubtedly may be of considerable significance to some citizens and officials of the City of Paterson. While there is no inherent right of local self-government, Wagner v. Newark, 24 N. J. 467 (1957), and consequently vested rights are not involved, nevertheless the court ought to avoid the creation of chaotic conditions, Mauk v. Hoffman, 87 N. J. Super. 276, 283 (Ch. Div. 1965), and provide for the continuation of the orderly functions of government. Consequently in the exercise of the court’s inherent authority to control the execution of its own orders, the order to be entered in conformity with this opinion will provide an opportunity to the citizens of the City of Paterson to initiate proceedings to avail themselves of any of the many options available for the government of municipalities under N. J. S. A. 40:69A-1 et seq., as was politely suggested in Schwartz v. Board of Aldermen, Paterson, 106 N. J. Super. 208, 209 (App. Div. 1969).


author: Per Curiam.

text:
    GENE M. BIALKOWSKI, PLAINTIFF-APPELLANT v. BOROUGH OF RIDGEFIELD, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, AND GEORGE CALZA, DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued June 20, 1972
    Decided June 28, 1972.

      Before Judges Labrecque, Kolovsky and Aulcokn.

      Ms. Sylvia B. Pressler argued the cause for the appellant (Okin, Pressler & Shapiro, attorneys).

      Mr. Michael L. Scherby argued the cause for the respondents.
   Per Curiam.

Under the provisions of N. J. S. A. 40:87-15, the borough council was authorized to appoint, in addition to various designated administrative officials, "such other officers as the council may deem necessary.” The same section provided that all such officers "shall hold office for 1 year and until their successors shall have qualified.” A 1970 amendment simply added to the list of specifically designated offices, the office of “borough building inspector.” L. 1970, c. 301, § 1.

Thus, on the occasion of each appointment of the plaintiff as building inspector, the term thereof was limited hy the foregoing statute to a period of one year. And this is precisely the term for which he was appointed by the governing body of the defendant municipality. Each of the resolutions adopted for the years 1968, 1969, 1970 and 1971 appointed plaintiff as building inspector “for the year [designating the specific year].”

This conclusion is not affected in any manner by the passage by the borough council in December 1969 of the ordinance which adopted as the borough’s building code ordinance the major portion of the provisions of the Standard Building Code of New Jersey. The provisions of section B 103.0 of that ordinance, which prohibited the removal of the building inspector “except for cause” and after a hearing, could relate only to removal during the one-year term for which he was appointed to administer the office. To otherwise construe this section (i. e., as providing for appointment during good behavior) would be to permit a municipality by ordinance to negate and to contradict a state statute expressly limiting the duration of the term of a municipal office to “1 year,” N. J. S. A. 40:87—15. Auio-Rite Supply Co. v. Woodbridge Tp., 35 N. J. 188 (1957).

Each of the four successive appointments of the plaintiff as building inspector having been made for a fixed term of one year, he has and had no tenure in that office hy virtue of his status as the holder of an exempt fireman certificate. He is not entitled to tenure under N. J. S. A. 40A:14-60 or its predecessor statutes (N. J. S. A. 40:47-60 and 61), for it expressly excludes from its protection those persons holding “appointments made for a fixed or stated period of time.” Similarly, he is not entitled to tenure un-der N. J. S. A. 40A:14-63 or its predecessor statute (N. J. S. A. 40:47-64), since by clear implication it also excludes persons whose terms of office are fixed by statute. Allgaier v. Woodbridge Tp., 5 N. J. Super. 21 (App. Div. 1949); Greenfield v. Passaic Valley Sewerage Comm’rs, 126 N. J. L. 171 (Sup. Ct. 1941).

Contrary to the contention of the plaintiff, there is nothing in the 1970 revision of Chapter 47 of Title 40, and specifically the sections dealing with tenure of persons holding exempt firemen certificates (N. J. S. A. 40:47-60 to 40:47-67, inclusive), which indicates any legislative intent “to change the pre-existing scheme.”

Affirmed.


text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT v. MIKE MORALES, DEFENDANT-APPELLANT. MIKE MORALES, PLAINTIFF-APPELLANT v. NEW JERSEY STATE PAROLE BOARD, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued June 19, 1972
    Decided July 18, 1972.

      Before Judges Collesteb, Mintz and Lynch.

      Mrs. Rosemary K. Reavey, Assistant Deputy Public Defender, argued the cause for the defendant-appellant and plaintiff-appellant Mike Morales (Mr. Stanley G. Van Ness, Public Defender, attorney).

      Mr. Elson P. Kendall, Assistant Prosecutor, argued the cause for plaintiff-respondent State of New Jersey (Mr. Karl Asch,, Union County Prosecutor, attorney).

      Mr. Joseph T. Maloney, Deputy Attorney General, argued the cause for defendant-respondent New Jersey State Parole Board (Mr. George P. Kugler, Jr., Attorney General of New Jersey, attorney; Mr. G. Robert Wills, Deputy Attorney General, of counsel and on the brief).
   Per Curiam.

This matter involves two separate appeals: (1) denial of defendant’s petition for post-conviction relief, and (2) the revocation of defendant’s parole by the State Parole Board.

I

Defendant was found guilty of carnal abuse and on April 11, 1958 was committed to the New Jersey State Hospital at Marlboro. Pie took no direct appeal. His first petition for post-conviction relief was filed on July 14, 1967. It was dismissed by the court, without an evidentiary hearing, on October 13, 1967 on the ground that it had not been filed within five years after defendant’s conviction. R. R. 3 :10A-13, now R. 3 -.22-12.

On March 30, 1971 defendant filed a second petition for post-conviction relief alleging the verdict was against the weight of the evidence and “there is no specific sentence— the sentence is ambiguous.” The court again dismissed the petition under the provisions of B. 3 :22-12. Defendant appeals contending that the petition should not have been dismissed because of defendant’s excusable neglect.

The order dismissing the petition is affirmed. The petition did not allege facts showing the delay in filing for more than five years was due to defendant’s excusable neglect, B. 3:22—12. Moreover, the claim that the verdict was against the weight of the evidence can be raised only on a direct appeal; it is not a ground for post-conviction relief. B. 3:22-2 and 4. And further, contrary to the assertion of defendant, the sentence to an indeterminate term at the State Hospital was proper. N. J. S. A. 2A:164-6. It was specific and unambiguous.

II

Defendant was paroled from the New Jersey State Hospital at Marlboro on April 17, 1969. On August 11, 1970 defendant was arrested and charged with atrocious assault and battery for stabbing the husband of his paramour. "When interviewed by his parole officer he admitted the stabbing and also having sexual relations with the victim’s wife. On October 5, 1970 defendant pleaded guilty in the municipal court to simple assault and battery and was sentenced to the time served in jail (60 days).

Upon receipt of the parole officer’s report the State Parole Board on September 16, 1970 declared defendant delinquent on parole as of August 11, 1970, the date of his arrest, and revoked his parole. The stated grounds for revocation were:

1. Failure to refrain from conduct on parole which shall give reasonable cause to believe that you have resumed, or are about to resume, criminal conduct or associations, as evidenced by the circumstances of your arrest on or about August 11, 1970 by the Elizabeth police for atrocious assault and battery.
2. Failure to notify your parole officer as soon as possible after your arrest.

When defendant was released from the Union County jail on October 6, 1970 he was transported to the Rahway Diagnostic Unit as a parole violator. On December 29, 1970 defendant was given a hearing on the September 16, 1970 revocation of parole. The parole board decided that the revocation should remain in effect and defendant would not be reparoled.

On appeal defendant raises four arguments: (1) he was entitled to a hearing on the proposed revocation of parole with counsel to assist him at the revocation hearing, (2) the revocation of parole was arbitrary, capricious and an abuse of discretion depriving defendant of due process of law under the Fourteenth Amendment, (3) rules and regulations concerning the parole of sex offenders should be promulgated in accordance with N. J. S. A. 2A:164-8, and (4) as a paroled sex offender whose alleged violation of parole was unrelated to his status prior to parole he should be given reasons why he has not been recommended for parole by the Special Classification Review Board.

We conclude that the arguments raised are lacking in merit. Following oral argument of this appeal the United States Supreme Court rendered its decision in Morrissey v. Brewer, 408 U. S. 471, 92 S. Ct. 2593, 33 L. Ed. 2d 484 (decided June 29, 1972) which laid down due process requirements that must be afforded a parolee before a parole board may revoke his parole. We find that several of the requirements, notably a preliminary hearing and notice of a hearing prior to revocation, are absent in this case. However, we have carefully reviewed the record and conclude that had all the specified due process requirements of Morrissey been scrupulously followed the same result, revocation of parole, would have been reached. It is undisputed that Morales pleaded guilty to assault and battery while on parole, an act which violated Sections 3a, b, c, and d of the conditions of parole which he signed on April 16, 1969, the day prior to his release on parole. Morrissey clearly states that a parolee cannot relitigate issues determined against him in other forums. To now require a remand for an evidentiary hearing would be an exercise in futility.

The issue of whether a parolee has a constitutional right to the assistance of counsel was not reached nor decided in Morrissey. However, other courts have held that there is no right to counsel at a parole revocation hearing and that any such right depends entirely upon the existence of statutory provisions. Johnson v. Stucker, 203 Kan. 253, 453 P. 2d 35, 40 (Sup. Ct. 1969), cert. den. 396 U. S. 904, 90 S. Ct. 218, 24 L. Ed. 2d 180 (1969). In the absence of such a statute and in view of our Supreme Court’s statement in Pulchaski v. N. J. State Parole Bd., 55 N. J. 113, 116 (1969), cert. den. 398 U. S. 938, 90 S. Ct. 1841, 26 L. Ed. 2d 270 (1970), to the effect that the decisions to date generally hold no such right to counsel exists in parole revocation proceedings, we hold that there is no constitutional requirement to provide a parolee with counsel during a parole revocation proceeding. See Bearden v. State of South Carolina, 443 F. 2d 1090, 1093 (4 Cir. 1971); Hyser v. Reed, 115 U. S. App. D. C. 254, 318 F. 2d 225, 238 (1963), cert. den. Thompson v. United States Bd. of Parole, 375 U. S. 957, 84 S. Ct. 446, 11 L. Ed. 2d 315 (1963) and Baxter v. Commonwealth, 1971 Mass. Adv. Sh. 487, 268 N. E. 2d 670, 674-675 (Sup. Jud. Ct. 1971).

We turn next to appellant’s second point. In State v. Lavelle, 54 N. J. 315 (1969), the New Jersey Supreme Court stated:

Ordinaria the grant or denial of parole is a matter which rests in the discretion of the parole authority. It is not a judicial function * * * Courts must give great weight to the expertise of the Board in dealing with parole decisions. They should not intervene unless it clearly and convincingly appears that the Board abused its discretion, (at 322 and 325)

Although Lavelle concerned the decision to grant parole, we believe a similar test applies in the judicial review of parole revocation decisions. We find no abuse of discretion in the decision of the Board to revoke defendant’s parole where the offense evidencing his failure to refrain from anti-social conduct was admitted by defendant.

Defendant’s points 3 and 4 involve matters which are not properly before us for judicial review.

Affirmed.


text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT v. JOHN J. HORN, SR., DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued July 11, 1972
    Decided July 20, 1972.

      Before Judges Lewis, Labbecque and Feitz.

      Mr. Thaddeus G. Raczlcowshi argued the cause for appellant {Messrs. Sailer, Fleming & Raczlcowslci, attorneys).

      Mr. Anthony J. Pace, Assistant Prosecutor, argued the cause for respondent {Mr. George F. Kugler, Jr., Attorney General of New Jersey, attorney).
   Per Curiam.

Defendant appeals from a judgment of the Bergen County Court finding him guilty of violation of N. J. S. A. 39:4-75. The background facts are set forth in the opinion of the County Court, 117 N. J. Super, at 74-75, and need not be repeated.

The summons to defendant for operating his alleged 56.000 lb. tractor-trailer combination over Bergen County’s Ferry Street Bridge (which was posted for 15 tons or 30.000 lbs.) was made returnable in the Bergen County District Court where, after a trial in which defendant adduced no evidence, judgment was entered finding him guilty and imposing a fine of $50 and $5 costs.

On appeal to the County Court, after a hearing on the basis of a transcript of the trial in the District Court, the trial judge ordered a plenary trial de novo, assertedly “so that both parties would have an opportunity to present a complete record in view of the important issues raised on this appeal.” Again defendant adduced no proof and at the conclusion of the testimony the defendant was again adjudged guilty and sentenced to pay a fine of $100 plus $25 costs. The present appeal followed.

Initially we consider defendant’s contention that the County Court was in error in ordering a de novo plenary trial. R. 3:23-8(a) provides, in pertinent part, that:

If a verbatim record or sound recording was made pursuant to R. 7:4-5 in tlie court from which the appeal is taken, the original transcript thereof duly certified as correct shall be filed by the appellant with the county clerk, and a certified copy served on the prosecuting attorney within 10 days after the filing of the notice of appeal or within such extension of time as the court permits. In such cases the trial of the appeal shall be heard de novo on the record unless by reason of the application of subsection (c) hereof it shall appear that the rights of either party may be prejudiced, in which event there shall be a plenary trial de novo.

We are in accord with defendant’s contention that since a taped record of the proceedings in the District Court had been made and was transcribed and filed with the county clerk, the appeal should have been heard de novo on that record. There was neither proof nor finding of any application of subsection (c) of R. 3:23-8 which would have justified a plenary trial de novo.

We note that at the hearing in the County Court the court indicated that it was prepared to dispose of the appeal on the record below. While normally we would remand to the County Court for that purpose, we conclude that, since the record is before us, the interest of justice will best be served by the exercise of our orgiinal jurisdiction and the disposition of the appeal on the merits without further delay. R. 2:10-5. Cf. Huster v. Huster, 64 N. J. Super. 29, 34 (App. Div. 1960); Hughes v. Knight, 33 N. J. Super. 519, 525 (App. Div. 1955).

Defendant first challenges the authority of the Bergen County Police to stop and weigh the vehicle being driven by him or to issue a summons for his alleged violation of N. J. S. A. 39:4-75. We find this contention to be without merit, substantially for the reasons set forth in the opinion of the County Court, 117 N. J. Super. at 76-81. Defendant’s argument that no useful purpose would be served by extending enforcement authority to county police officers is belied by the fact, among others, that a county is chargeable under the Bridge Act, N. J. S. A. 27:19—1 et seq., with the repair and maintenance of many bridges within its borders and that one of the recognized sources of damage to such bridges is the operation of vehicles over them which exceed their posted load limits. In the light of the specific grant of authority to county police to enforce the provisions of Title 39 found in N. J. S. A. 39:5-1 and N. J. S. A. 40:22-5 (now 40A:14-107), it would be incongruous to hold that county policemen are without power to compel adherence to load restrictions on county bridges.

We reject the suggestion that the grant of such law enforcement authority to the Bergen County Police would create an unconstitutional burden upon interstate commerce. Cf. Maurer v. Hamilton, 309 U. S. 598, 603-606, 60 S. Ct. 726, 84 L. Ed. 969 (1939) ; South Carolina State Highway Dept. v. Barnwell Bros., 303 U. S. 177, 187, 58 S. Ct. 510, 82 L. Ed. 734 (1938); Sproles v. Binford, 286 U. S. 374, 52 S. Ct. 581, 76 L. Ed. 1167 (1932).

In pursuance to our fact-finding authority, R. 2:10-5, we have reviewed the record made in the District Court and conclude therefrom that defendant was stopped and his tractor-trailer weighed in the manner set forth in the reported opinion of the judge of the County Court. The total of all the recorded axle weights was 56,220 lbs., 26,220 lbs. in excess of the bridge’s posted limit.

Loadometers are in widespread use by law enforcement agencies throughout the country and are a relatively simple and accurate means of determining vehicle weight. Officer Saccente, who testified, was qualified by training and certification to conduct the weighing. The operation of the loadometers in the manner described by him was proper. They were required to be tested annually and here they had been tested and their calibrations checked on March 19, 1971 (the offense took place on April 8, 1971). The fact that there was a difference of some 2,000 lbs. between the axle weight on one side of the vehicle and that on the opposite side does not vitiate the results of the weighing in view of the uncontradicted testimony that a slight beveling of the road surface where the weighing took place would tend to throw more of the weight on one side. The absence of a reading for one axle due to lack of an outside wheel was a factor in defendant’s favor.

By reason of the foregoing we are convinced beyond a reasonable doubt that defendant violated N. J. S. A. 39:4r-75 at the time and place in question, and we so find.

We are in accord with defendant’s contention that he was improperly sentenced. His fine should not have exceeded that meted out to him in the District Court. State v. De Bonis, 58 N. J. 182, 188-189 (1971). His sentence is accordingly modified to call for a fine of $50 and $25 costs.

Defendant’s conviction and his sentence, as modified, are affirmed.


author: Halpern, J. A. D.

text:
    STATE OF NEW JERSEY, PLAINTIFF-APPELLANT, v. PHILIP P. SIDOTI, NICOLA AURIEMMA, RITA AURIEMMA, JOHN A. GUANCIONE, AND RAYMOND DE FILLIPPIS, DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued July 25, 1972
    Decided August 3, 1972.

      Before Judges Leonard, Halpern and Lynch.

      Mr. Michael R. 8tieber, Assistant Prosecutor, argued the cause for appellant {Mr. Joseph P. Lordi, Essex County Prosecutor, attorney; Mr. B. Benjamin Cohen, Assistant Prosecutor, of counsel and on the brief).
    Ur. Donald 8. Goldman argued the cause for respondents Sidoti and Guancione {Messrs. Goldman, Goldman & Caprio, attorneys).

      Messrs. Bussell & McAlevy, attorneys for respondent De Eillippis, filed a statement in lieu of brief.

      Messrs. Alongi, Bregg & DeVito, attorneys for respondents Auriemma, filed a statement in lieu of brief.
   The opinion of the court was delivered by

Halpern, J. A. D.

By leave granted, the State appeals from an order suppressing all the evidence seized resulting from two wiretap orders issued by the Essex County Assignment Judge. The relevant facts, the legislative history of the New Jersey Wiretapping and Electronic Surveillance Control Act (N. J. S. A. 2A:156A-1 et seq.), and the reasons for its action are set forth in the court’s opinion (116 N. J. Super. 70) and will not be repeated herein. Since the “Sidoti” wiretap, which followed the “Mitarotonda” wiretap in point of time, was held invalid because of the alleged infirmities in the Mitarotonda wiretap, we will deal primarily with the latter.

Preliminarily, we grant respondents’ motion and strike from appellant’s appendix the affidavit of James T. Palma dated February 11, 1972. This affidavit was not part of the record below and, therefore, is not properly before us. Wallach v. Williams, 52 N. J. 504, 505 (1968).

In addition to the reasons given by the court for suppressing the evidence seized, respondents contend N. J. S. A. 2A:156A—1 et seq., is unconstitutional on its face, and that the Mitarotonda and Sidoti wiretaps were illegal because the prosecutor failed to apply personally for the orders but authorized named detectives in his office to do so. These contentions are without merit. See State v. Dye, 60 N. J. 518 (1972).

The court suppressed the evidence seized because, as we understand the opinion, it found the Mitarotonda wiretap failed to show a “special need” for a wiretap on public telephones, as required by N. J. S. A. 2A:156A-11, of the breadth, duration and undifferentiated scope authorized by the court in violation of the Fourth Amendment of the Federal Constitution. Combining the elements of “special need” with the scope and breadth of the authorized tap is not warranted. Each must be considered separately in light of the existing circumstances.

We are in accord with the court’s views that the New Jersey Legislature, in adopting N. J. S. A. 2A:156A-1 et seq., was sensitive to the threat to individual privacy inherent in any form of wiretapping, and in particular when a public telephone was involved. Section 11 of the statute expresses this concern by requiring the court to determine that an undefined “special need” exists to intercept wire communications over public telephones. Such special need to be in addition to the standards fixed in Section 10.

We find that the proofs presented on the application for the Mitarotonda wiretap showed ample probable cause for belief that a “special need” existed to issue the order. It must be emphasized that the wiretap dealt with a bookmaking operation. We have long recognized that such operations are conducted by shrewd and ingenious individuals who constantly devise new techniques to avoid detection. State v. Kuznitz, 36 N. J. Super. 521, 530 (App. Div. 1955), certif. den. 20 N. J. 136 (1955). It is reasonably inferable that such individuals are fully acquainted with the provisions of N. J. S. A. 2A:156A-1 et seq., and in particular with the mandate that “special need” must be shown when public telephones are involved. Therefore, it does not strain the imagination to realize that bookmakers, whether or not part of organized gambling, would use public telephones to conduct their operations. In the process, they will utilize every conceivable ploy to avoid detection by the police whose mode of operation by surveillance, wiretapping and informers are well known to them. Detection by the police of bookmaking operations becomes more difficult with the passage of time. All this is evident in the proofs presented on the application for the Mitarotonda wiretap, a synopsis of which indicates that (a) information was received by the police from a reliable informant that Mitarotonda was utilizing two public telephones in booths located on public streets for bookmaking purposes; (b) the information was verified by surveilling the area over a four day period during which time the police observed Mitarotonda’s actions which bore the well-known earmarks of a bookmaking operation; (c) the police observed the transfer of cash and slips of paper between Mitarotonda and unknown persons, and heard the placing of horse and lottery bets; (d) the impossibility of continuing surveillance in the area without being detected; and (e) the impracticality of executing a search warrant at the telephone booths. Under such circumstances, we conclude that probable cause to believe that a “special need” existed for the issuance of the wiretap order had been shown because usual investigative methods would be unlikely to succeed. See Approved Draft, 1971, of the A. B. A. Project, etc., Standards Relating to Electronic Surveillance, § 5.10, and commentary thereon.

We turn to respondents’ contention and the court’s determination that the order permitting the Mitarotonda wiretap was too broad and unrestricted. The questioned portion of the order provided that the interception was to cover Mitarotonda and other unknown males and

* * * will begin and end as soon as practicable and be conducted in such a way as to minimize or eliminate the interception of communications other than the type described hereinabove; said interception shall terminate no later than thirty days from the beginning of interception * * *.

The thrust of the court’s reasoning was that the order was defective because it “* * * constituted at best a loose hobble upon the discretion of the executing officers * * *” because it lacked “* * * concrete restrictions as to persons, times or duration * *

Our difficulty in deciding the issues presented stems from the fact that the court decided the motions to suppress without taking any proofs as to how the orders were executed by the police. We agree with the reasoning in State v. Christy, 112 N. J. Super. 48 (Law Div. 1970) that a wiretap order, similar to the one here in question, which did not specify the hours of interception and which limited the period to 30 days, was valid. While it is desirable for an order to be more specific as to which person’s communications are to be intercepted, what hours of the day and the number of days the tap should last, bookmaking is a continuing operation, carried on with a myriad of persons, thus defying such specificity. Therefore, absent the ability to be more specific, wiretapping orders which place the burden on police to begin and end the tap as soon as practicable, and to be done in such a way as to minimize or eliminate irrelevant communications, are valid. It then becomes the court’s obligation to determine whether the actions of the police, as tested by Fourth Amendment standards, comport with due process and the court’s direction in executing the order. United States v. King, 335 F. Supp. 523 (S. D. Calif. 1971). We must weigh the State’s duty of protecting the public as against the potential danger of unreasonable wiretapping violative of an individual’s right to privacy and free expression. On balance, the former must prevail if due process has been complied with. State v. Bisaccia, 58 N. J. 586, 590 (1971).

Therefore, we reverse the judgment below and remand the matter to the trial court to hold a plenary hearing to determine the means used and the circumstances under which the Mitarotonda wiretap was executed. If the police acted in good faith and in compliance with the order, so much of the intercepted communications that are relevant should be admissible in evidence, together with the evidence seized as a result thereof. State v. Bye, supra. So much thereof as is irrelevant and has been obtained through the “insolence” of the police in violation of the order and respondents’ constitutional rights, together with the fruits thereof, should be suppressed. Coolidge v. New Hampshire, 403 U. S. 443, 91 S. Ct. 2022, 29 L. Ed. 2d 564 (1971); State v. Dye, supra; State v. De Simone, 60 N. J. 319 (1972); State v. Bisaccia, supra.

In view of the foregoing, we make no determination of the issue raised by the State, based on Wong Sun v. United States, 371 U. S. 471, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1962), that even if the Mitarotonda tap were unlawful, the evidence secured by virtue of the Sidoti wiretap and search was admissible since it has become so attenuated as to dissipate the taint of the original unlawfulness.

Nor do we think it proper to decide whether respondents are aggrieved persons who have standing to challenge the evidence resulting from the Mitarotonda wiretap even assuming it to be invalid. We do this because the necessary facts were not presented on this issue, nor was it raised or argued below or in this court. This issue should be determined on the remand. See Alderman v. United States, 394 U. S. 165, 89 S. Ct. 961, 22 L. Ed. 2d 176 (1967); N. J. S. A. 2A:156A-17, 18 and 21; R. 3:5-7.

Jurisdiction is not retained.