author: Per Curiak. Coneord, P. J. A. D. Kolovsky, J. A. D. Carton, J. A. D.

text:
    TANYA TIBBS, INFANT, BY HER GUARDIANS, MR. & MRS. HAROLD DIGGS; NELLIE HARRELL, INFANT, BY HER GUARDIANS, MR. AND MRS. SAMUEL SPURGEON; GENSEY LAWRENCE, INFANT, BY HER GUARDIANS, MR. & MRS. NORRIS LAWRENCE; DENISE AVERETTE, INFANT, BY HER GUARDIANS, MR. & MRS. WILLIE AVERETTE, AND OTHERS SIMILARLY AFFECTED, APPELLANTS, v. BOARD OF EDUCATION OF THE TOWNSHIP OF FRANKLIN (SOMERSET COUNTY), RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued February 16, 1971
    Decided March 30, 1971.

      Before Judges Coneokd, Kolovsky and Carton.

      Mr. James B. Ventanlonio (Director, Somerset County Legal Services) argued the cause for appellants (Messrs. Michael D. Lang and William J. Zaino on the brief).

      Mr. Leonard N. Arnold argued the cause for respondent.
   Per Curiak.

The expulsions of appellants are reversed and set aside for failure to produce the accusing witnesses for testimony and cross-examination.

The matters are remanded to the Commissioner of Education for rehearing de novo of the charges on which appellants were expelled should the local school authorities choose to prosecute them. No costs.

Coneord, P. J. A. D.

(concurring) The per curiam opinion of the court represents what all the members of the court can agree upon. I herewith supplement that determination with my own reasons for joining therein and my own more specific views as to what the Commissioner of Education should do and the local school authorities may do at this juncture.

We granted leave to appeal an interlocutory decision of the State Commissioner of Education, but denied appellants’ request for ad interim readmission to classes at EranMin High School from which they had therefore been expelled or suspended for an alleged physical assault upon other students said to have occurred October 7, 1970. (All were ultimately expelled.) The Supreme Court on motion thereafter directed the appellants to be readmitted to school, subject to good behavior, pending determination of this appeal.

The sole issue presented is whether a high school student may be expelled from school on the charge of physical assault upon another student where the hearing conducted by the local board of education on the charge is not preceded by identification to the accused of the accusing student witnesses whose ex parte statements the school administration has relied on in bringing the disciplinary proceedings and where such witnesses do not appear to testify at the hearing. My view, and I believe that of the court, is that this procedure denies due process to the student so expelled, and this notwithstanding a determination by the local board, held warranted by the State Commissioner, that the student witnesses wore afraid to testify because of fear of physical reprisal and should not be compelled to do so against their will.

On October 7, 1970, according to hearsay testimony adduced before the local board and the Commissioner, two students at the school, sisters, were assaulted by a group of others, all or mostly girls, while all were walking home after classes, a short distance from the school exits. They were struck with a stick, pushed to the ground and jumped upon or kicked, and some of their possessions were taken from them and purloined or scattered. One of them sustained the destruction of her eyeglasses. Both had minor injuries. They ran, crying, back to the guidance office at the school. It appears that neither could, or was willing to, identify any of their attackers. But a number of student witnesses volunteered statements to the school authorities identifying appellants and others (about ten in all) as involved in the episode. They were apparently assured, upon request, that they would not be identified to the accused students because of fear of physical retaliation.

The alleged assailants were, so far as available, called in for interviews, and generally denied complicity. But some stated they were in the vicinity and had seen part of the events. In the case of appellant Tanya Tibbs, statements of other students supporting her defense that she had seen but not participated in the occurrence were proffered to the school authorities by her parents, but investigation thereof failed to satisfy the authorities that the prima facie case against her had been impaired. We are informed that initial suspensions were imposed upon a total of ten students. After informal hearings the suspensions were lifted as to five of the accused, but the other five, including the four present appellants, were expelled by the board of education after hearings substantially of the kind afforded Tanya, and described hereafter.

Tanya was originally notified of a suspension to begin October 13, 1970 and to terminate November 16. (She remained out of school until the Supreme Court order of January 25, 1971.) Tanya’s parents were given notice October 27, 1970 by the superintendent of schools that the board of education would meet November 2, 1970 for a full hearing to consider the recommendation of the school principal and himself that the girl be expelled from school for “assault upon a student of Franklin High School”; that they could be represented by an attorney; that the vice-principal and principal would testify and be subject to cross-examination, and that signed statements of student witnesses would be presented but that such students would not appear at the hearing. The accused pupil would have the right to present testimony of witnesses or a signed statement by any witness not desiring or able to attend.

The hearing was postponed to November 9, 1970 at the request of Tanj^a’s attorney but the latter was informed that the statements of the student witnesses to be provided would not be signed or identified.

At the hearing before the board the principal and vice-principal of the high school testified concerning their investigation and the informal hearings they conducted as to the incident, resulting in findings and conclusions by them substantially to the effect indicated above, including that of ■Tanya’s guilt.' The principal also testified that he had received a telephone call from the mother of one of the accused students threatening the life of one of the prospective student witnesses. There was testimony that the student witnesses were in terror of retaliation if their identity was revealed to the accused students. The principal explained that the problem he faced in deciding whether to produce the children to testify was “a two-fold one: What happens within the confines of a racially tense school; and my own concern for the continued safety of the students involved.” (It seems agreed there has been a history of racial conflicts at the school.) The board voted to accept into evidence unsigned and unidentified statements by student witnesses, and three such were read into the record. In each such statement Tanya was identified as one of those “doing the hitting.” A statement by the victims, identified as the Cornwell sisters, was also read. This described the occurrence but omitted identification of any assailant.

The attorney for Tanya objected throughout the hearing to the failure to identify and produce and subject to cross-examination any of the accusing witnesses whose statements were read. On the basis of that deficiency he refused to adduce defensive testimony by or on behalf of his client, lie had also at the outset of the hearing moved that two members of the board disqualify themselves as prejudiced because of public statements previously made by them concerning the incident and alleged antecedent related occurrences. The motion was denied.

The board of education thereupon voted Tanya guilty and then took testimony concerning her prior disciplinary record in school. This was generally poor. After argument by counsel against expulsion the board voted that determination.

Tanya filed an appeal against the expulsion with the Commissioner of Education and petitioned him for ad interim relief of admission to classes pending adjudication. A hearing on the petition was conducted November 30, 1970 before the Division of Controversies and Disputes at which the school principal testified to the substance of what had been adduced before the local board. On December 1, 1970 the Commissioner of Education denied ad interim relief. He expressly decided that the procedure used by the local board comported with due process and that he was satisfied by the testimony of the principal “that school officials had sufficient cause for concern regarding the safety of potential student witnesses” so as to justify not “releasing the students’ names” or permitting their cross-examination.

It is not necessary here to pursue in detail the long and uneven development of the law over the past centirry concerning appropriate procedures in school and college student disciplinary proceedings. See Annotations, 58 A. L. R. 2d 903 (1958); A. L. R. 2d Later Case Service (56-63 A. L. R. 2d) at 219; the extensive survey of authorities and literature in R. R. v. Board of Education, Shore Reg. H. S., 109 N. J. Super. 337 (Ch. Div. 1970); Note, 41 Temple L. Q. 349 (1968); Abbott, “Due Process and Secondary School Dismissals,” 20 Case Western Reserve L. Rev. 378 (1969).

To summarize briefly, the early cases, particularly in relation to proceedings below the college level, generally did not recognize due process concepts as appropriate to the exercise of discipline of students, even in the case of expulsion. The idea of the school administrators being in loco parentis to students of secondary and primary grade level held some sway. In the course of time, however, when the sanction applied for misconduct was expulsion or suspension of severe ■duration, especially in college-level cases, the decisions began do speak in terms of hearing requirements of due process. Rut a variety of expressions can be found in the cases as to the specifics of fair hearings or due process, particularly in Telation to such claimed incidents as the right of counsel, personal appearances of accusing witnesses, and the right of cross-examination of such witnesses by the defense. The variations are probably explainable on the basis of the diversity of attendant circumstances in different eases — the mature of the offense; nature of the prosecuting and adjudicating entities; ages of the accused students and of witnesses; stage of the proceedings in the entirety of the process of investigation, punishment-treatment and review; and effect of statutory provisions, e. g., as to right to subpoena witnesses or to counsel, or the absence thereof, etc. See Madera v. Board of Education, City of New York, 386 F. 2d 778 (2 Cir. 1967), cert. den. 390 U. S. 1028, 88 S. Ct. 1416, 20 L. Ed. 2d 284 (1968); Schwartz v. Schuker, 298 F. Supp. 238 (E. D. N. Y. 1969).

Our own statutes are rudimentary. N. J. S. A. 18A:37~3 provides that certain types of pupil misbehavior, including “d. physical assault upon another pupil * * *” may be attended by “suspension or expulsion from school.” A principal may suspend any pupil Tor good cause” but must report it forthwith to the superintendent of schools. The superintendent must report the suspension to the board of education at its next regular meeting. Either the principal or superintendent may reinstate the pupil prior to the second regular meeting of the board thereafter unless the board does so at its first meeting. N. J. S. A. 18A :37-4. No suspension may continue beyond the second regular meeting of the board after the suspension unless the board continues it, “and the power to reinstate, continue any suspension reported to it or expel a pupil shall be vested in each board.” N. J. S. A. 18A:37-5. No hearing procedures attendant upon suspensions or expulsions are specified.

The leading decision of the modern era relating to fair procedures in college expulsion eases is Dixon v. Alabama State Board of Education, 294 F. 2d 150 (5 Cir. 1961), cert. den. 368 U. S. 930, 82 S. Ct. 368, 7 L. Ed. 2d 193 (1961). The guidelines there stated were quoted in full in R. R. v. Board of Education, Shore Reg. H. S., supra (109 N. J. Super, at 349), and need not be repeated here. Basically similar standards were declared in State ex rel. Sherman v. Hyman, 180 Tenn. 99, 171 S. W. 2d 822, 826 (Sup. Ct. 1942), cert. den. 319 U. S. 748, 63 S. Ct. 1158, 87 L. Ed. 1703 (1943). In contrast with the particular procedures followed here, the Dixon guidelines require affording the accused student in advance the names of the witnesses against him and a report of the facts they attest to. Cross-examination of witnesses and a “full-dress judicial hearing” is said not to be necessary. (294 F. 2d at 159). Some cases, however, seem to suggest the desirability of production of the accusatory witnesses at the hearing and allowance of their cross-examination. Esteban v. Central Missouri State College, 277 F. Supp. 649, 651-652 (W. D. Mo. 1967), approved in the appeal of a later phase of the case, 415 F. 2d 1077, 1089 (8 Cir. 1969) (per Blackmun, Circuit Judge); semble, Marzette v. McPhee, 294 F. Supp. 562, 567 (W. D. Wis. 1968), and Buttny v. Smiley, 281 F. Supp. 280 (D. Colo. 1968).

Opposing mandatory production at the hearing of prosecution witnesses and cross-examination of them, in addition to the Dixon and Hyman cases, Supra, are State ex rel. Ingersoll v. Clapp, 81 Mont. 200, 263 P. 433 (Sup. Ct 1928), cert. den. 277 U. S. 591, 48 S. Ct. 528, 72 L. Ed. 1003 (1928), error dism. 278 U. S. 661, 49 S. Ct. 7, 73 L. Ed. 568 (1928); People ex rel. Bluett v. Board of Trustees, University of Illinois, 10 Ill. App. 2d 207, 134 N. E. 2d 635, 58 A. L. R. 2d 899 (App. Ct. 1956); semble, Scoggin v. Lincoln University, 291 F. Supp. 161 (W. D. Mo. 1968); Wasson v. Trowbridge, 382 F. 2d 807 (2 Cir. 1967).

A modern public-school case in which the right of the accused student to hear and cross-examine witnesses against him was sustained, Geiger v. Milford Independent School District, 51 Pa. Dist. & Co. R. 647 (C. P. 1944), stands in contrast with a later decision of a Pennsylvania court of equal standing denying the right to a hearing of that kind as apt to “undermine entire disciplinary machinery of the school system.” Mando, etc. v. Wesleyville School District, 81 Pa. Dist. & Co. R. 125 (C. P. 1952).

In R. R. v. Board of Education, Shore Reg. H. S., supra, our Chancery Division held a Dixon-type hearing mandatory as a condition for suspension of indefinite duration of a high school student charged with an assault on another child (oil school premises). The New Jersey State Department of Education, has heretofore recognized the general requirements of procedural due process in relation to school students facing severe disciplinary sanctions. Scher v. Board of Education, West Orange, 1968 School Law Decisions 92, 95.

There is no issue in the present ease as to the necessity for a “fair hearing procedure” antecedent to imposition by a local board of education of the sanction of expulsion of a student for misconduct. "Both sides agree on it. The issue is whether student witnesses against the accused must be identified to the accused and be produced and be subject to cross-examination, either (a) generally, or (b) under the circumstances of this case.

It is apparent from the decided cases that due process in the school or college context does not, by the weight of authority, require the production in person and right of cross-examination of adverse witnesses. It does call for identification of such witnesses and for supplying the accused with statements or affidavits by them verifying the charges in advance of the hearing. That much is minimally essential, in an issue over controverted objective conduct, as here, to give the accused a fair opportunity to meet and refute possibly mistaken or unfounded assertions of fact. If, despite the witnesses’ fears, their identity must be revealed as a matter of minimum due process to the accused, there would seem little point in precluding the availability of the substantially more revealing personal testimony of the witnesses for the benefit both of the triers of the fact and the defense of the accused children in the search for the truth of the matter. Common experience, moreover, establishes that the right of cross-examination is almost always essential for assurance of an enlightened determination of a contested issue of fact. I therefore conclude that in the context of such a case as this not only should the accusing witnesses be identified in advance but also, as a general matter and absent the most compelling circumstances bespeaking a different course, be produced to testify and to be cross-examined.

Cross-examination of school children witnesses in proceedings like these should, however, be carefully controlled by the hearing officer or body, limited to the material essentials of the direct testimony and not be unduly protracted. Such a proceeding is decidedly not in the nature of a criminal trial nor to be encrusted with all the ordinary procedural and evidential concomitants of such a trial.

It remains to consider the particular objections raised by respondents to identification and examination at the hearing of the accusatory witnesses. I have no inclination to gainsay the determination of the local and state educational officials that these children were in a genuine state of fear over having their identity revealed. Whether the procdural policy adopted and approved at the administrative level for the handling of this matter would be justified, in the attendant circumstances, were the ultimate sanctions imposed substantially less than that of expulsion of the accused, is not the immediate issue here. I discuss that particular contingency later herein. We here confront a decision for expulsion ■— action which constitutes deprivation of a most drastic and potentially irreparable ldnd. In that setting compromise with punctilious procedural fairness becomes in-acceptable. As was recently stated by a writer on the subject:

The problem can be put in greater perspective by considering the importance of fair procedure to the student involved. He may have as much to fear from the arbitrary use of power at the secondary level as at the college or university level. This is particularly true where the misconduct may result in an expulsion or a lengthy suspension. The stigma of compulsory withdrawal may follow even a high school student for many years after the institution has considered the incident closed. Expulsion or suspension always involves a permanent notation on the student’s record which may have long term effects on his ability to achieve entry into college or the job market. Moreover, if the child is unable to return to school, the economics of a premature withdrawal are startling and more tangible evidence of the burden that he must shoulder. [Abbott, of. cit., supra, 20 Case Western Reserve L. Rev., at 382]

At oral argument respondent conceded there was no assurance of early or favorable action on any application for reinstatement after expulsion which might be made by appellants, and it is apparent that admission to schools in other districts, if obtainable at all, would entail payment of a substantial non-resident fee these students could probably ill afford.

As against the interests of the pupils here accused in remaining in school, the school community must be content to deal with threats or intimidation of the kind allegedly encountered by invoking the jurisdiction of the law enforcement authorities who must be presumed equal to> their responsibilities.

So much decided, the question arises as to the next step in the matter. Both sides have expressed a preference for a remand to the local board of education should the action of the Commissioner not be sustained by the court. But the court has concluded that the remand should be to the Commissioner of Education. My own reasons for joining in that direction are the following.

Although, technically speaking, the appeal before us is from the interlocutory decision of the Commissioner, our determination has been to reverse and set aside the expulsions. The initiative for further action in respect of the accused pupils rests with the local school authorities. Three electives are apparent: (a) to have the appellants retried, producing the accusing witnesses for testimony and cross-examination; (b) to abandon the objective of expulsion or suspension for a substantial term, and to deal with the allegedly offending children with lesser discipline-treatment measures not requiring a formal hearing with “due-process” trappings; (c) to drop the matter entirely.

If the decision is to present the case for expulsion anew, I believe the wisest course in this particular exigency is to have the rehearing conducted by the Commissioner de novo pursuant to his authority under W. J. S. A. 18A:6-9. The local board has by now been embroiled in the matter to the point where a desirable appearance of impartiality on its part would be- difficult to project. Moreover rehearing by the Commissioner would accelerate a final resolution of the matter.

If, however, the decision of the local authorities, whether in order to relieve the student witnesses of the mental trauma of revealing their identity or for any other reason, is to forego further efforts to effect expulsion or severe terms of suspension, and to deal with the allegedly offending children in other appropriate ways, the matter, in my view, should be returned by the Commissioner to the local school authorities for suitable action in the first instance (the Commissioner, of course^ always retains statutory review jurisdiction in respect of any action taken locally). I think it appropriate for the court to express its views on this contingency in light of the fact that at oral argument respondents indicated a probable decision not to produce the student witnesses against their will.

I do not presume to suggest specific suitable alternative action by the local authorities, or whether, indeed, any further action would be- indicated at all. That decision is for the local school people. One can conceive the possibility that the local authorities will not decide on further action until after consultation with the guidance and psychological staffs of the school. Such consultations might lead to decisions for temporary home instructions, psychological treatment, the application of moderate disciplinary measures (detention, reprimand, etc.), or any combination of the foregoing and other measures as appropriate ways of handling these eases in the interests of the pupils themselves and the school community at large.

What I feel impelled to say for myself in relation to the legalities is that in the area of handling, disciplining or treating problem pupils at the high school level, generally speaking (the records of at least several of the appellants here involved show they were problem pupils), the concept of formal “due process” hearings as a prerequisite for administrative action short of expulsion or severe suspension is most inappropriate, and, if imported into that sphere would, in my view, be inimical to the welfare, educational and otherwise, not only of the children requiring such handling but of the particular school community as a whole. Cf. Madera v. Board of Education, City of New York, supra.

And it is the local school administration, which lives with such problems, rather than the Commissioner, which should in the first instance exorcise the judgment and assume the responsibilities required in these complex and sensitive concerns. Decisions like Goldberg v. Kelly, 397 U. S. 251, 90 S. Ct. 1011, 25 L. Ed. 2d 287 (1970), involve adverse government action against persons who are sui juris and not immature members of a controlled high school community in the course of a process of disciplined education. Such decisions are therefore not apposite in the immediate context. “Constitutional rights” are not involved.

At the oral argument appellants expressly conceded they would have no objection to local board action short of expulsion or extended suspension on procedures such as were employed in this case.

It is thus my opinion that if the local authorities inform the Commissioner that they elect to proceed along the lines of alternative (b), supra, they should be permitted to do so by completing their investigation of the matter, giving the accused pupils another opportunity to explain their position in relation to the assault incident (first informing them that expulsion, etc. is not an objective of the investigation), and then dealing with the matter in such manner as in their best judgment may be appropriate.

Kolovsky, J. A. D.

(concurring). The State Commissioner of Education has heretofore recognized that in proceedings before a local board of education which may lead to the expulsion or suspension of a public school student for alleged misconduct — as contrasted with scholastic failure — due process requires, among other things, that the accused student be given at least the names of the witnesses against him and copies of the statements and affidavits of those witnesses. Scher v. Board of Education, West Orange, 1968 School Law Decisions, 92, 95.

In my view, due process also requires that there be added to these minimal rights the right to demand that any such witness appear in person to answer questions. If the witness does not do so, his statement should not and may not be considered or relied on by the board.

By his decision of December 1, 1970 the State Commissioner ruled, despite his previous holding in Scher, that in this case the local board did not have to identify the witnesses against the accused students and could act on the basis of unsigned statements obtained from the witnesses. Justification therefor was found in the determination by the local board, based on the testimony of its investigatory staff, that the witnesses were afraid to testify for fear of physical reprisal.

In my opinion such fears afford no justification in any case for depriving the accused students of their constitutional right to be confronted by and to examine the witnesses against them. An ordered society cannot accept the view that the police and prosecuting authorities will be impotent to prevent and punish unlawful conduct of the kind which the witnesses allegedly fear and on that basis deny the accused students their constitutional right to demand confrontation by the witnesses against them.

Such right is a fundamental aspect of due process, whatever other variant in the form of the hearing may be permitted where a public school student is charged with misconduct. Cf. Dixon v. Alabama State Board of Education, 294 F. 2d 150 (5 Cir. 1961), cert. den. 368 U. S. 930, 82 S. Ct. 368, 7 L. Ed. 2d 193 (1961).

It must be borne in mind that the action sought to be reviewed here is administrative action by a governmental agency, an agency which has the power to compel the attendance of witnesses. See N. J. S. A. 18A :6 — 20. Cases upholding expulsions or suspensions from schools or colleges that are not governmental agencies and whose administrators lack such power (see State ex rel. Ingersoll v. Clapp, 81 Mont. 200, 215, 263 P. 433 (Sup. Ct. 1928); People ex rel. Bluett v. Board of Trustees of University of Illinois, 10 Ill. App. 2d 207, 134 N. E. 2d 635 (App. Ct. 1956)) are therefore of no' precedential significance.

Bather, what is of controlling significance is the constitutional rule which mandates that a respondent charged with misconduct in a hearing before a governmental agency be given the opportunity to confront and cross-examine adverse witnesses where the decision of the governmental agency will turn on questions of fact. Goldberg v. Kelly, 397 U. S. 254, 269-270, 90 S. Ct. 1011, 1021, 25 L. Ed. 2d 287 (1970); Greene v. McElroy, 360 U. S. 474, 496-497, 79 S. Ct. 1400, 1413, 3 L. Ed. 2d 1377 (1959).

As the United States Supreme Court recently said in applying the rule to the ease of a welfare recipient whom the governmental agency had ruled ineligible for further welfare assistance:

In almost every setting where important decisions turn on questions of fact, due process requires an opportunity to confront and cross-examine adverse witnesses. E. g., ICC v. Louisville & N. R. Co., 227 U. S. 88, 93-94, 33 S. Ct. 185, 187-188, 57 L. Ed. 431 (1913) ; Willner v. Committee on Character & Fitness, 373 U. S. 90, 103-104, 83 S. Ct. 1175, 1180-1181, 10 L. Ed. 2d 224 (1963). What we said in Greene v. McElroy, 360 U. S. 474, 496-497, 79 S. Ct. 1400, 1413, 3 L. Ed. 2d 1377 (1959), is particularly pertinent here:
“Certain principles have remained relatively immutable in our jurisprudence. One of these is that where governmental action seriously injures an individual, and the reasonableness of the action depends on fact findings, the evidence used to prove the Government’s case must be disclosed to the individual so that he has an opportunity to show that it is untrue. While this is important in the case of documentary evidence, it is even more important where the evidence consists of the testimony of individuals whose memory might be faulty or who, in fact, might be perjurers or persons motivated by malice, vindictiveness, intolerance, prejudice, or jealousy. We have formalized these protections in the requirements of confrontation and cross-examination. They have ancient roots. They find expression in' the Sixth Amendment * * *. This Court has been zealous to protect these lights from erosion. It has spoken out not only in criminal cases, * * but also in all types of cases where administrative * * * actions were under scrutiny.”
Welfare recipients must therefore be given an opportunity to confront and cross-examine the witnesses relied on by the department. [(Goldberg v. Kelly, supra, 397 U. S. at 269-270, 90 S. Ct. at 1021); emphasis added].

My brother Conford suggests that such right of confrontation does not exist if the local board should decide that the penalty to be imposed on the accused students for the assaults and batteries with which they are charged is less than “expulsion or severe term of suspension.”

I cannot agree. The constitutional rights of the accused students may not be dissipated by a decision by the local board in advance of a hearing that the penalty will not be “expulsion or a severe term of suspension.” Moreover, it is evident that any suspension beyond the preliminary period of suspension which, under N. J. S. A. 18A:37 — 1, a principal may lawfully impose without a hearing, is a “severe term of suspension.”

Eurther, I see no justification for the suggestion that the State Commissioner may, instead of hearing and deciding the charges himself, return the matter “to the local, school authorities for suitable action in the first instance”

[ i]i, * * ®, the decision of the local authorities, whether in order to relieve the student witnesses of the mental trauma of revealing their identity or for any other reason, is to forego further efforts to effect expulsion or severe terms of suspension, and to deal with the alleged offending children in other appropriate ways * * *.

The suggestion envisions that the only evidence to be offered is that heretofore offered to establish that the accused students had committed assaults and batteries, the written statements of unidentified student witnesses. Those statements are hearsay.

Under settled rules of administrative law, such hearsay, standing alone and absent other legally competent evidence, would afford no legal basis for a finding or determination by either the local board or the State Commissioner that the students had committed the acts with which they are charged — and this irrespective of the penalty to be imposed if the misconduct charged is proven. Gilligan v. International Paper Co., 24 N. J. 230, 236 (1957); Mazza v. Cavicchia, 15 N. J. 498, 509 (1954); Andricsak v. National Fireproofing Corp., 3 N. J. 466, 471 (1950); D’Amico v. Blanck, 85 N. J. Super. 297, 303 (App. Div. 1964), certif. denied 43 N. J. 448 (1964); Friese v. Nagle Packing Co., 110 N. J. L. 588, 589 (E. & A. 1933); Helminsky v. Ford Motor Co., 111 N. J. L. 369, 373 (E. & A. 1933); Annotation, ‘'Administrative Law — Hearsay Evidence,” 36 A. L. R. 3d 12, 43 (1971 ).

The Commissioner’s decision of December 1, 1970 (which had approved the procedures adopted by the local board) is (he only decision from which the appeal before us was taken — a decision which we now reverse.

Appeals from the orders entered by the local board, after separate hearings, expelling the appellants from school are pending undetermined before the Commissioner. The Commissioner is now in a position to and should proceed to hear and determine those appeals under the power granted by N. J. S. A. 18A:6 — 9. Such determinations will embrace all issues, including that of the alleged guilt of the students and the penalties to be imposed if they are found guilty.

The history of this litigation, the controversy which it has engendered at the local level and the desirability of a speedy resolution of the charges and issues presented all militate against our granting the request made by the parties hereto that, in the event we did not affirm the Commissioner’s decision of December 1, 1970, we remand the cases to the local board of education for further proceedings rather than call on the Commissioner to proceed with the appeals.

Now that the Commissioner has our ruling as to the basic issue presented, he should proceed to hear and determine the appeals promptly.

Carton, J. A. D.

(concurring) : The hearing on the remand to the Commissioner should be in accordance with the legislative mandate that the Commissioner shall “hear and determine all disputes and controversies arising out of the school law.” N. J. S. A. 18A:6-9. The statute contemplates a full review of the evidence and an independent determination of all issues including determination of guilt and assessment of penalties. See In re Masiello, 25 N. J. 590 (1958), and In re Fulcomer, 93 N. J. Super. 404 (App. Div. 1967). This “judicial type” hearing requires that witnesses against the accused students be produced and be subjected to cross-examination. The accused students should, of course, have the right to testify and produce witnesses on their behalf.

No useful purpose would be served, and much harm may unnecessarily result, if upon the remand, the Commissioner is required again to refer any part of this controversy to, and await action by, the local board. Such a piecemeal approach would serve only to prolong an already overly lengthy proceeding. More important, under the circumstances present in this case, it could hardly fail to revive the community strife which commonly accompanies such controversies. Cf. In re Fulcomer, supra.

I concur generally with the view expressed by Judge Kolovsky that in a disciplinary proceeding such as this which may result in expulsion, due process requires that the accused student be afforded an opportunity to confront and cross-examine adverse witnesses. However, I am concerned that our recognition of that right may be construed to mean that such a full-dress hearing is a necessary ingredient of procedural due process at the local hoard level or that our decision be interpreted to lay down the requirements of all such proceedings conducted at that level.

I would hold only that any proceeding conducted by the local board must comply with the minimum requirements set forth in Dixon v. Alabama State Board of Education, 294 F. 2d 150 (5 Cir. 1961), cert. den. 368 U. S. 930, 82 S. Ct. 368, 7 L. Ed. 2d 193 (1961). The board should not be compelled, and due process does not require, the in-person production of adverse witnesses and the right of cross-examination at the local board hearing. Although cross-examination is a valuable method of developing the entire factual situation in a given case, it must be borne in mind that the proceeding is an administrative one conducted and controlled by boards of nine lay citizens ordinarily unfamiliar with legal procedures.

The courts cannot envision the whole range of situations which might arise in this administrative area. On the other hand, the Commissioner has an expertise in this field and by reason thereof is. in an excellent position to develop and formulate workable and comprehensive procedures. Consequently, we should leave to his office the responsibility of determining the specific format of the hearings and the safeguards required at the board level in eases of this kind, subject of course to the fundamental requirements set forth in Dixon.

It may be pointed out that the Commissioner, in the exercise of his broad supervisory powers, may, where it appears desirable, grant preliminary or injunctive relief to preserve the rights of any party pending a decision by the local board. Furthermore, in the event either party feels aggrieved by the outcome of the hearing at the local level, the exercise of his right to appeal automatically brings the matter before the Commissioner for an independent hearing and determination by him. Compliance with every fundamental requirement of due process can thus be assured without loss of efficiency — the goal which the administrative process in the educational system seeks to attain — and without unnecessary disruption in the operation of that system.

       One need not determine whether the Administrative Procedure Act’s mandate for cross-examination in contested cases, N. J. S. A. 52:14B-10(a), is without application here because the local board is not a state agency or is an agency whose primary responsibility is the management of an educational program and the dispute relates to the “internal affairs” of that program. N. J. S. A. 52:14B-2(a).

       Consider the broad authority vested in the principal alone to suspend under N. J. S. A. 18A:37-4 and the liability of misbehaving pupils to “punishment”, apart from suspension and expulsion, under N. J. S. A. 18A :37-2.


source: Caselaw Access Project

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

license: Public Domain

text:
    THE BOARD OF EDUCATION OF NEWARK IN THE COUNTY OF ESSEX, A CORPORATION, ETC., PLAINTIFF-RESPONDENT, v. NEWARK TEACHERS UNION, LOCAL NO. 481, AMERICAN FEDERATION OF TEACHERS, A.F.L.C.I.O., ETC., ET AL., DEFENDANTS. IN THE MATTER OF NEWARK TEACHERS UNION, LOCAL 481, AMERICAN FEDERATION OF TEACHERS, A.F.L.C.I.O., ETC., AND ONE HUNDRED EIGHTY FIVE (185) OTHERS, APPELLANTS.
    Superior Court of New Jersey Appellate Division
    Argued March 15, 1971
    Decided April 5, 1971.

      Before Judges Confokd, Kolovsky and Carton.

      Mr. Seymour Cohen argued the cause for appellants.

      Mr. R. Benjamin Cohen, Assistant Prosecutor, argued the cause for respondent (Mr. Joseph P. Lordi, Essex County

      Prosecutor, attorney; Mr. Bruce P. Miller, Assistant Prosecutor, of counsel and on the brief).
   The opinion of the court was delivered by

Conrord, P. J. A. D.

This is an appeal by the defendant union and 185 individual defendants from summary adjudications of contempt of court and sentences pursuant thereto for violation of a January 31, 1970 order of the Chancery Division restraining defendants from engaging in a strike against the Newark Board of Education. The issues projected on the appeal are narrow. Prohibited picketing by most of the defendants is in effect conceded in the single brief filed on behalf of all defendants.

A quotation from defendants’ brief well sets the background against which the issues before us must be considered :

On the following day (February 1) at a meeting sponsored by the Newark Teachers Union, held at the Military Park Hotel in Newark, attended by 2,000 or more people, covered by all major television and radio networks and newspapers in the New York metropolitan area, a strike was called. On the following day, Monday, More than 3,000 of the approximately 4,000 school teachers of the Newark school system did not report to their classrooms. That situation with some up and down fluctuations remained fairly constant throughout the four weeks of the strike.

The foregoing may be supplemented by the fact that at the February 1 (Sunday) union mass meeting the president of the union, Carol Graves, told the audience that the union had been served with the restraining order but that it would strike anyway as the only means of redress of its grievances.

The restraining order was broad and comprehensive. It was directed against the union, the New Jersey State Federation of Teachers', “their respective members, officers, directors. committee members, employees, agents and representatives,” (there followed the names of 11 individuals) “and all persons acting in behalf of or in concert or participation with the said defendants or the said members, officers,” etc. Among the acts that were prohibited were:

1. Cansing, instigating, promoting, sanctioning, authorizing, carrying on, participating in, fostering, continuing, lending support or assistance to or aiding or abetting any strike, sitdown, slowdown, work stoppage or other impediment to work, against the plaintiff or by any employee or employees of the plaintiff;
2. Picketing, congregating, parading, patrolling, loitering, gathering, or walking back and forth, — or causing, instigating, promoting, encouraging, sanctioning, intimidating, coercing, counselling or authorizing any person or persons to picket, congregate, parade, patrol, loiter or walk back and forth, ■ — ■ in front or in the vicinity of the public schools, buildings, grounds, playgrounds, yards, or premises of the plaintiff or operated or administered by the plaintiff, or in front of any buildings, grounds, playgrounds and premises on or at which any instructional or guidance program is conducted by plaintiff ;
3. Interfering with, obstructing, impeding, or delaying, or attempting to interfere with, obstruct, impede or delay the plaintiff in the performance of any of its duties and functions or in the conduct of the Newark public school program; * * *
7. Agreeing, conspiring, or combining to do any of the foregoing acts, or directly or indirectly accepting, arranging for, or soliciting from any source funds or other support for the doing of any of the foregoing acts mentioned in paragraph “1” to “6”, directly preceding the within paragraph “7”.

While the order was to expire February 13, 1970, it was continued and ultimately made permanent.

Most if not all the individual defendants were arrested for violations of the restraint, generally when found picketing or assembling and congregating outside the schools on what normally would have been regular school days when the teacher-defendants would normally be expected to be working inside the buildings. Six officers of the union were arrested pursuant to arrest orders expressly naming them. Almost all the other individual appellants were arrested pursuant to a general arrest order issued by the Chancery Division not naming specific persons but directing the arrest by the sheriff of “any individual who- in his presence or that of any member of his staff is observed to continue to violate this court’s order of January 31, 1970.

I

The first appellate point urged is that the general order of arrest was illegal and the State may not rely upon the “fruits” of the illegal seizures pursuant thereto — i. e., the identification of the picketing defendants. Even if the premise were conceded, the conclusion derived therefrom would not follow.

Even if the general order be invalid for failure to name or identify particular persons to be arrested, cf. West v. Cabell, 153 U. S. 78, 85-86, 14 S. Ct. 752, 38 L. Ed. 2d 643 (1894); Fisher, Laws of Arrest 107 (1967), we do not find the arrests invalid. An arrest not supportable under a warrant therefor will not be held invalid if there is another basis upon which to sustain it. Cf. State v. Masco, 103 N. J. Super. 277, 282 (App. Div. 1968). Here there is.

The common law made, a distinction between felonies and misdemeanors for purposes of distinguishing the criteria for authorization of an arrest by a peace officer without a warrant. In the case of the former the test was probable cause to believe the arrestee had committed or was committing the offense; in the latter, whether the offense was being committed in the officer’s presence. State v. Smith, 37 N. J. 481, 494-495 (1962), cert. den. 374 U. S. 835, 83 S. Ct. 1879, 10 L. Ed. 2d 1055 (1963). In State v. Doyle, 42 N. J. 334 (1964), the dichotomy between “felonies” and “misdemeanors” for the foregoing purposes was transmuted into one between offenses punishable by incarceration in state prison for more than one year and those not so punishable. Id. at 349. In the present case, since the alleged offenses by defendants were specified by the court’s order to be prosecuted summarily by the court without initial indictment by grand jury and trial by jury, the maximum potential incarceration for guilt became limited to six months. In re Buehrer, 50 N. J. 501 (1967). Consequently, applying the criterion of Doyle, supra, these alleged offenses fell into the category wherein the peace officers could arrest only if the offenses were committed in the presence of the officers. It is onr conclusion that they did.

The term “presence” sums up the requirement that the officers knew of the criminal event by the use of their senses. State v. Smith, supra, 37 N. J. at 495. The criminal event in the present case would be any objective conduct by an individual which an officer could fairly conclude was violative of the restraining order. Picketing, with or without the carrying of signs, would obviously be such. The order also contains prohibitory language broadly referable to the ordinary common-law concept of aiding and abetting. Individuals assembling or milling about in groups outside schools or school administration buildings, infer-ably to deter teachers or other school personnel from attending to their duties or to encourage others to continue with their participation in the union endeavor to carry on the strike, can fairly be said to be aiding and abetting the violation of the restraining order by others as well as directly violating it themselves. We therefore conclude the offenses by those defendants who were arrested were being committed in the presence of the arresting officers and that the arrests were consequently valid.

This makes it unnecessary for us to consider what seems to us at least a dubious proposition ■ — • that if the: arrests were illegal the convictions were achieved with the aid of the illegal “fruits” thereof in the form of “identification” of the wrongdoers.

II

Defendants contend that they were convicted of contempt of court because of absence from the classroom although they were never charged with that act.

We do not find that any defendant was convicted of contempt for absence from the classroom per se as an act of disobedience of the restraining order. It is evident from the totality of the findings in each case that evidence of absence from the classroom by teacher defendants, coupled with, proof that the absentee had failed to comply with a school regulation requiring explaining absences to the principal of the school, and in the light of all the other evidence in the case, was taken as a sufficient showing to justify the ultimate determinative finding that the particular absent defendant was participating, directly or indirectly, in the strike, contrary to the restraining order.

That the several trial judges entertained this conception is illustrated by Judge Mintz’ comment at the outset of the Kirschbaum hearing: “* * * we’ll proceed on the theory that the Order to Show Cause charges this defendant with unlawful picketing in front of the Lafayette Street School on February 19, 1970 and unlawful absence from his classroom as part of a strike movement on the pari of Local Union 481” (Emphasis added).

Again, “Now, the contention of the State is that this defendant by absenting himself unlawfully or without justifiable reason from the; classroom aided, and abetted in a strike(Emphasis added)

Thus it was the ultimate determination, expressly or impliedly, of participation in the strike which underlay each adjudication of contempt.

The vast majority of the individual defendants were proven to have been picketing, and as to these there can be no question that the adjudications of contempt were unexceptionable. Defendants’ brief names eight defendants who assertedly were not proven involved in picketing but were convicted solely on the allegedly uncharged offense of absence from school. Those so named are defendants Eaymond Kirschbaum, Fred Klock, Dorothy Bergman, Ellen Asselmeyer, James Peluso, Marilyn Lago, Maria Mirabella and Alan Yablonsky. The specific evidence and findings as to these were as follows:

Kirschbaum. On February 19 he was loitering as one of a group of three persons across the street from Lafayette School whereas his place of employment as a teacher was East Side High School. He was found not to have been “picketing” as such “in front of” Lafayette School. He was found to have absented himself from classes without cause or notice.

Klock. He was observed on February 19 driving a car in front of the Summer Avenue School and waving his left arm out the car window. He was then seen to stop his car in front of the school and blow the car horn while continuing to wave his arm. A number of persons, including several of the other defendants who had been walking in front of the school, moved out of their line upon hearing Klock. Klock was then arrested. There was also evidence that Klock was assigned to Barringer High School, and was absent without notice from February 2 to 25, 1970. On the basis of this evidence a trial judge found that Klock was probably “the lookout for pieketers at or near Summer Avenue School”; he interpreted the evidence against Klock as indicating that the defendant “would blow his [car] horn and wave his hand to direct pieketers to leave when the official car was arriving in the area.”

Bergman. Several officers and detectives saw her at the Summer Avenue School on February 19 wearing a sign referring to the teachers’ union and standing near an automobile occupied by two other persons. There was also evidence that she had been absent from the Boylan Street School without notice from February 2 to 25. A trial judge found that she had been “present with a picket sign near the Summer Avenue School after some of her colleagues had been arrested,” in addition to having participated in the strike with knowledge of the restraining order.

Asselmeyer and Peluso>. These defendants were the two persons in the ear netst to which defendant Bergman was arrested. The evidence against them was that a sign referring to the strike was seen in the car which they occupied, and upon the arrest of Miss Bergman the car drove away from the Summer Avenue School. A detective gave chase in his vehicle and apprehended Peluso and Asselmeyer several blocks from the school. There was also evidence that Peluso was absent without explanation from his assigned duties at Abington Avenue School from February 2 to 25, and that Asselmeyer was absent throughout the same period from the Boylan Street School. The trial judge found that these two defendants

* * * were observed on February 19, 1970 in the area of Summer Avenue School. Mrs. Asselmeyer was wearing a picket sign, and Mr. Peluso accompanied her in an automobile in which the picket sign was located. From this it can be inferred that they had picketed in the area of Summer Avenue School, but, in any event, they were out of school despite knowledge of the restraining order, and by staying out in concerted fashion with their colleagues until February 26, as a result of the strike call on February 1 at the union meeting, they were thereby also guilty of violating the order.

The trial judge found that an inference of picketing by these defendants was permissible and that they had concertedly violated the restraint.

Lago, Mirabella, and Yablonsky. There was evidence that they were seen standing in front of Immaculate Heart of Mary Church, across the street from the Lafayette Street School, on February 19. There were m pickets immediately in front of that school. As a vehicle bearing Essex County Sheriff’s markings approached the school, the three named defendants ran into the church; after the marked vehicle left the area of the school and church they returned to the sidewalk in front of the church. They were subsequently arrested. There was also evidence that Yablonsky was absent from his South Street School duties from February 2 to 25 without notice to the principal, and that Marilyn Lago and Maria Mirabella were inexcusably absent from their duties at the Oliver Street School during that same period, although Marilyn Lago did call in sick from February 19 to 25. The trial judge found that the evidence sustained the charge that these defendants were picketing, congregating, parading, etc. “in the vicinity” of a Newark public school.

We conclude that all the defendants, including those specifically mentioned above, were properly found guilty of contempt of court in that the proofs justified beyond a reasonable doubt findings that they violated the restraining order by willfully participating in or aiding and abetting the strike in one or more of the ways prohibited by the restraining order.

Pursuant to our appellate responsibility under N. J. S. A. 2A:10-3 and R. 2:10-4; Sarner v. Sarner, 28 N. J. 519, 525 (1959), app. dism. 359 U. S. 533, 79 S. Ct. 1137, 3 L. Ed. 2d 1028 (1959), reh. den. 360 U. S. 940, 79 S. Ct. 1446, 3 L. Ed. 2d 1552 (1959); State v. Gussman, 34 N. J. Super. 408 (App. Div. 1955), and Zimmerman v. Zimmerman, 12 N. J. Super. 61, 69 (App. Div. 1950), we have reviewed the evidence in all the cases de novo on the record and concur in the findings below of guilt of each of the defendants of contempt of court beyond a reasonable doubt.

Ill

Defendants contend they were improperly convicted of contempt in that they were afforded no or inadequate notice of the offense or offenses they were charged with. We do not agree.

Specifically, defendants contend the requirements of R. 1:10-2, governing summary contempt proceedings, were not observed by the State. The rule requires the court to institute the proceedings by order for arrest or order to show cause “specifying the acts or omissions alleged to have been contumacious.” The arrest order of February 10 recited sworn allegations that “illegal picketing has been and is being conducted on a well-organized plan.” The complaints filed against particular defendants charged assembling with others and picketing at named locations. Each defendant was later served with an “order continuing arrest” charging them, knowing of the existence and content of the restraining order of January 31, with (a) carrying on and participating in a strike against the board of education; (b) picketing, congregating and assembling at a specific location in front of a school or board of education building, and (c) obstructing and impeding the board of education in conducting its functions and programs.

We are satisfied that the foregoing, in totality, adequately apprised the defendants of the charges on which they would be tried and met the spirit and intent of B. 1:10-2 as well as defendants’ rights to due process.

IV

Defendants contend that the sentences imposed were “arbitrary and excessive.” The sentences imposed were, for the most part, ten days in jail and a fine of $200. Dp to three months in jail and $500 fines were imposed upon union leaders. The union was fined $40,000. The argument is that the sentencing motivations were “subjective,” whereas they should have been exclusively based on the “objective” facts; that the defendants were being punished essentially for striking rather than for violating the restraint.

The assertions are not soundly conceived. Sentences were in all cases based upon the violation of the restraint although the effect of the contempt on the public interest was undoubtedly in the minds of the sentencing judges, having been expressly mentioned in some instances. Defendants’ apparent argument •— that the nature and effect of the conduct restrained by the order contemned is irrelevant to appropriate punishment for the contempt ■— is ill founded. Were it accepted, all criminal contempts of court would be punished relatively uniformly, all being theoretically merely the affront to the dignity of the court. The law is otherwise. The public interest in the subject matter of the restraint is a highly relevant factor in assessing punishment for the contempt. In re Buehrer, supra, 50 N. J. at 507, 508. There is no more important public interest than the freedom from interruption in, or the disruption of, the education of school children. See N. J. Const., Art. VIII, § IV, par. 1.

It is our duty as an appellate court in summary contempt cases to adjudge punishment as well as guilt. N. J. S. A. 2A:10-3; R. 2:10-4. Sarner v. Sarner, supra; Zimmerman v. Zimmerman, supra. We have hereinabove adjudicated guilt of all defendants. After assaying the whole record and considering the appellate arguments we concur in the sentences severally imposed on each of the defendants by the respective trial courts which are herewith incorporated by reference into this determination. All pending stays are vacated. Pines are to be paid forthwith if not already paid. Jail terms shall be served commencing July 12, 1971.

So ordered.


author: Matthews, J. A. D.

text:
    STATE OF NEW JERSEY, PLAINTIFF-APPELLANT, v. CURTIS HOWARD BLINSINGER, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued January 12, 1971
    Decided April 5, 1971.

      Before Judges Lewis, Matthews and Mintz.

      Mr. I. Michael Heine, Assistant Prosecutor, argued the cause for appellant {Mr. A. Donald Bigley, Camden County Prosecutor, attorney).

      Mr. James G. Aiken argued the cause for respondent (Messrs. Aiken and Lake, attorneys).
   The opinion of the court was delivered by

Matthews, J. A. D.

On October 22, 1937 defendant entered a guilty plea to an accusation charging him with breaking and entering the pro-shop of the Tavistock Country Club with intent to steal. He was given a suspended sentence and placed on probation for three years. On April 14, 1959, %\y2 years later, defendant was found guilty of simple assault and battery, a violation of N. J. S. A. 2A :170-26, a disorderly persons offense, in Camden Township. The conviction under the Disorderly Persons Act was expunged in a proceeding in the Camden County Court under the provisions of N. J. S. A. 2A:169-11. Judgment of ex-pungement was entered in June of 1969.

On August 8, 1969 defendant instituted a proceeding under N. J. S. A. 2A:164-28, seeking to have his original breaking and entering conviction expunged. The Camden County Court granted him the relief requested and the State has appealed.

The State first argues that the subsequent “conviction” of defendant of simple assault and battery bars the expungement of the prior conviction for breaking and entering. The pertinent portion of N. J. 8. A. 2A:16A-28 reads as follows:

In all eases wherein a criminal conviction has been entered against any person whereon sentence was suspended, or a fine imposed of not more than $1,000, and no subsequent conviction has been entered against such person, it shall be lawful after the lapse of 10 years from the date of such conviction for the person so convicted to present a duly verified petition to the court wherein such conviction was entered, setting forth all the facts in the matter and praying for the z-elief provided for in this section. [Emphasis added]

It is the State’s position that the reference to a “subsequent conviction” in this section refers to any type of conviction, whether it be criminal or disorderly. The State also argues that the fact that the assault and battery conviction was later expunged should make no difference since there was at some time a “subsequent conviction.” We find it unnecessary to rule on this second argument in view of our conclusion hereinafter reached, and also because the argument was not raised before the court below.

The provisions of N. J. S. A. 2A:164-28 are operative only in the case of a “criminal conviction.” We hold that the reference to a “subsequent conviction” must be construed in pari materiaJ with the phrase “criminal conviction” contained in the paragraph. Accordingly, oniy a subsequent criminal conviction should bar an expungement of the record. Violations of the Disorderly Persons Act are not usually considered to be crimes. They are not admissible, for example, to affect the credibility of a witness. See e. g., State v. Blocks, 119 N. J. L. 277, 282 (Sup. Ct. 1938); State v. Tune, 17 N. J. 100, 109-111 (1954).

We also deem it significant that the Legislature, in enacting N. J. S. A. 2A:169-11 (L. 1968, c. 279, § 1), the statute permitting expungement of a disorderly persons record, saw fit to refer to both criminal and disorderly person convictions. That statute, under which defendant’s 1959 disorderly conviction was properly expunged, reads in part:

In all cases wherein a person has been adjudged a disorderly person whereon sentence was suspended or a fine imposed and no subsequent criminal or disorderly person conviction has been entered against such person, it shall be lawful after the lapse of 5 years from the date of such conviction for the person so adjudged a disorderly person to present a duly verified petition to the County Court of the county in which the conviction was entered, setting forth all the facts in the matter and praying for the relief provided for in this act.

The State also contends that defendant’s 1937 conviction for breaking and entering cannot be expunged in any event, because breaking and entering with intent to steal is the equivalent of burglary. We disagree.

JV. J. S. A. 2 A :164-28 excepts convictions for certain crimes, including burglary, from its provisions. At common law, burglary was the breaking and entering of the dwelling of another in the nighttime with intent to commit a felony. Perkins Criminal Law, (2 ed. 1969), c. 3 at 212.

There is nothing in the legislative history to guide us in the construction of this statute. We observe, however, that under the provisions of our murder statute, N. J. S. A. 2A: 113-1 and 2, the reference to the word “burglary” therein has been construed by our courts to mean common-law burglary. See State v. Butler, 27 N. J. 560 (1958); State v. Burrell, 120 N. J. L. 277 (E. & A. 1938); State v. Hauptmann, 115 N. J. L. 412 (E. & A. 1935), cert. den. 296 U. S. 649, 56 S. Ct. 310, 80 L. Ed. 461 (1935).

We agree with the conclusion of the trial judge that if the members of the Legislature meant and used the term burglary to include breaking and entering, they would have included the term breaking and entering in the statute. We see no significance in the fact that the chapter heading in the revised statutes refers to “Burglary and Like Crimes.” The provisions of N. J. S. A. 1 :l-6 prohibits the use of headings or footnotes in construing any statutes, specifically providing that “in the construction of the Revised Statutes, or of any statute or any part thereof, no outline or analysis of the contents of any title, subtitle, chapter, article or other part thereof, no cross l-eference or cross reference note and no headnote or source note to any section thereof shall be deemed to be a part of the Revised Statutes or such statute.”

The judgment of the trial court is affirmed.


author: Pee Cueiam.

text:
    ROSEMARY COFONE, PLAINTIFF-APPELLANT, v. ANGELO COFONE, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued April 5, 1971
    Decided April 13, 1971.

      Before Judges Goldmann, Leonard and Ekitz.

      Mr. Robert L. Doris, Jr. argued the cause for appellant (Mr. Elliot M. Baumgart, Administrator, Essex County Legal Services Corp., attorney).
    Respondent did not file a brief.
   Pee Cueiam.

Plaintiff sought a divorce on the ground of defendant’s adultery with Rita Chizmar. Her action was uncontested. Judgment of dismissal was entered in the Chancery Division and she appeals.

All that plaintiff in her testimony offered by way of proof of adultery was that defendant had told her “he was seeing [Miss Chizmar] before we were married, and he was still going with her”; that she had once found a pair of dofendant’s pants soaking in the bathroom washbasin with white stains on the front, and that she had seen defendant get out of Miss Chizmar’s car at night when it stopped on a side street across from the marital home.

Miss Chizmar testified that she was friendly with defendant and had maintained a relationship with him until October 1969, a date some six months before trial. The following ensued during her direct examination by plaintiff’s attorney :

Q. During the period of his marriage did you commit adultery with him?
A. Yes, I did.
THE COURT: Wait a minute. She has rights under the United States Constitution. You should not have asked her that question. There is nobody here to protect her, and she answered it too fast for me to protect her, but you are a lawyer. She has no understanding and has not been given any understanding on the record here that she has certain rights under the Fifth Amendment to the United States Constitution and could avail herself of them. Now she has put herself in a position, where she could probably be or might probably be indicted by a Grand Jury.
I will strike the question and strike the answer, and I will say that you cannot prove adultery out of the mouth of an alleged adulteress, except in a very rare, hotly contested case, and this is not that sort. Go ahead.
Q. During the period of that relationship how often did you see Mr. Cofone ?
A. I would say about a few times a week.
Q. Did you see him in circumstances where you were alone with Mm?
A. Yes.
Q. The two of you together?
A. Yes, I did.
Q. Did that sort of circumstances exist up until October of 1969?
A. Yes, it did.

Joseph Curto, a friend of defendant, added little to the ■proofs. He said that he had seen defendant in his (defend.ant’s) father’s apartment in the spring of 1968. When he walked into the place through an open door, he found defendant in his shorts and a woman on the bed. He could not positively identify the woman. He had also seen defendant and Miss Chizmar together a few times, once in a car in the spring of 1969.

On recall, Miss Chizmar denied that she was in the apartment of defendant’s father when Curto walked in.

In denying a divorce the trial judge stated that he believed the situation was a collusive one. He disbelieved all of Curto’s testimony and much of plaintiff’s.

The trial judge was mistaken when he said that “you cannot prove adultery out of the mouth of an alleged adultress, except in a very rare, hotly contested case.” A co-respondent’s testimony is direct proof of the commission of the offense, and while open to suspicion, it is admissible as primary evidence. Hedden v. Hedden, 21 N. J. Eq. 61, 65 (Ch. 1870); DeDonis v. DeDonis, 1 N. J. 43, 45 (1948). Without corroborative proof, such testimony is ordinarily insufficient as a basis for a judgment. Renner v. Renner, 13 N. J. Misc. 749 (Ch. 1935); 12 N. J. Practice (Herr, Marriage, Divorce and Separation) (3d ed., Lodge, 1963), § 2279 at 465 and § 2290 at 488. The co-respondent’s testimony as to adultery should have been allowed, after she had first been warned of her Fifth Amendment rights.

But this does not resolve the matter. Any consideration of an adultery case must begin with Berckmans v. Berckmans, 16 N. J. Eq. 122 (Ch. 1863), where the court, in language that has often been repeated, said:

To establish the existence of adultery, the circumstances must be such as would lead the guarded discretion of a reasonable and just man to that conclusion. It must not be a rash and intemperate judgment, moving upon appearances that are equally capable of two interpretations. * * *
The facts proven must be such as cannot be reconciled with probability and the innocence of the parties. * * *
Mere imprudence, indiscretion or folly, is not conclusive evidence of guilt. The mind of the court must be satisfied that there was an intimacy between the parties, entirely inconsistent with the duty which a virtuous wife owes to herself and to her husband.
* * * "Where the conduct of a party admits of two interpretations, equally consistent with probability, the one involving guilt and the other consistent with innocence, the rule of evidence as well as the dictates of justice, require that the interpretation should be favorable to innocence. [At p. 140; citations omitted]

The language oí our former Court of Errors and Appeals in affirming Berclcmans is even stronger. See 17 N. J. Eq. 453, 454 (1864). The court said that the charge of adultery, if true, is known as a crime, and its prosecution partakes strongly of the nature of a criminal proceeding, so much so that the complaining spouse must prove the charge “beyond a reasonable doubt.”

Berckmans was quoted with approval in Eberhard v. Eberhard, 4 N. J. 535, 545-546 (1950). Our Supreme Court there said that the heart of the Berclcmans rule is that where there are two interpretations of the conduct of the accused party, equally consistent with probability, the interpretation should be favorable to innocence.

Had Miss Chizmar’s testimony been received, would there be sufficient corroboration such as to establish adultery within the rule enunciated in Berclcmans ? The answer must be in the negative. The only corroboration would be plaintiff’s, who testifed, simply, that her husband admitted he continued seeing the co-respondent, and that she had seen her husband get out of Miss Chizmar’s car at night. Although the record strongly suggests collusion, see Welch v. Welch, 35 N. J. Super. 355 (App. Div. 1955), we rest our affirmance on the fact that adultery was not proved.

Affirmed.


author: Herbert, J. S. C.

text:
    NEVICELLA GALASSO, PLAINTIFF, v. CARMINE DEL GUERCIO, HOLY CROSS CEMETERY, A NEW JERSEY CORPORATION, MONSIGNOR JOSEPH A. DOYLE, ARCHDIOCESAN CEMETERY DIRECTOR, THE SPATOLA FUNERAL HOME, DEFENDANTS.
    Superior Court of New Jersey Chancery Division
    Decided March 23, 1971.

      Mr. Amedeo O. Jacovino for plaintiff (Messrs Friedman & D’Alessandro, attorneys).

      Mr. Jack J. Soriano for defendant Del Guereio (Messrs. Marinello, Henkel, Soriano & Klein, attorneys).

      Mr. Joseph A. darken, Jr. for defendants Holy Cross Cemetery and Monsignor Doyle (Messrs. Gassert, Murphy and darken, attorneys).
   Herbert, J. S. C.

Plaintiff is the widow of Pasquale Galasso', who died March 9, 1970, and is the sister of de¡fendant Del Guereio. The subject matter in dispute is the use of space in the Del Guereio family mausoleum in Holy Cross Cemetery, North Arlington. (The cemetery is located in Bergen County: but the litigants have consented to this court deciding the case. The cemetery has also agreed that the final judgment insofar as it shall relate to the burial of the remains of Pasquale Galasso, shall be binding upon it.)

Defendant Del Guereio immediately after Pasquale Ga-lasso’s death objected to use of the mausoleum as Galasso’s place of burial. On the eve of the funeral the complaint was filed and an interim restraint obtained, thus enabling plaintiff to have her husband’s body placed in the mausoleum at least temporarily. Since the funeral Del Guereio has made it clear that he does not oppose use of tire mausoleum as Galasso’s final resting place, but he does vigorously object to the placement of Galasso’s coffin in the particular space it now occupies. Del Guercio’s admitted objective is to save that place for himself.

The mausoleum was built by plaintiff’s mother. She died intestate in 1937, survived by all lour of her children. Two of the four have since died and their bodies are in the mausoleum. It contains, a total of 17 burial spaces, eight on the upper level and nine at the lower level. Including the space in which Galasso’s coffin has been placed, seven of the eight on the upper level are occupied, and all nine below are empty. Defendant Del Guercio is a widower and his wife’s body is in the mausoleum. Directly opposite her resting place is the coffin of Galasso. Defendant desires to occupy that space when his: time comes.

It is provided in the rules and regulations of Holy Cross Cemetery that

Under the Statutes of the State and the regulations of the Management of the Cemetery, if the owner of a lot die, making no disposition of his lot by will, the lot of such intestate descends to his “heirs-at-law” — that is, to the same persons who, by the laws of this State, would inherit any residue of his real estate.

This provision appears to be substantially in accord with N. J. S. A. 8:3-31. It follows that when Galasso died his wife — the plaintiff — owned by inheritance from her mother a one-fourtli interest in the cemetery plot and the mausoleum erected upon it.

The> basic question is whether defendant Del Guercio, as a co-owner with plaintiff, can insist upon his consent being secured as a condition of a lawful burial in the mausoleum for plaintiff’s husband. Del Guercio relies upon N. J. S. A. 8 :2-24, which reads as follows:

The body of any deceased person or the ashes thereof shall not be interred in any plot or lot in a cemetery owned by a cemetery association incorporated under sections 8:1-1 to 8 :l-5 of this Title or under any special act, unless the deceased person had, at the time of his decease, an interest in the plot or lot, or was the relative of some person having such an interest, or was the wife or such person or her relative, except by the consent of all persons having an interest in such plot or lot.

In Friant v. Dolbow, 41 N. J. Super. 84 (Ch. Div. 1956), the statute was construed and applied. It was there held that a co-owner of a cemetery lot, who had failed to get from other co-owners consent to bury her deceased husband in it, had buried him illegally, and at the suit of nonconsenting co-owners disinterment of the body was ordered.

If N. J. S. A. 8:2-24 were applicable to Holy Cross Cemetery, then Friant would be authority for ordering that Ga-lasso’s body be moved to a position in the mausoleum to which defendant Del Guercio consents. The power to grant or withhold permission for any burial at all — if it exists— must include power to consent on condition that only a place on the lot or in the mausoleum approved by the consenting co-owner be used. However, I am informed that Holy Cross Cemetery, is not an incorporated cemetery association. The statute, N. J. S. A. 8 :2-24, applies only to a “plot or lot in a cemetery owned by a cemetery association incorporated under sections 8:1 — 1 to 8 :l-5 of this Title or under any special act * * The certificate issued to Mrs. Del Guercio senior, on the strength of which the mausoleum was built, shows on its face that it came from the Roman Catholic Archdiocese of Newark, N. J. One of the provisions of the certificate is that title, to the plot in question shall remain in the Archdiocese. The legal power of a diocese of the Roman Catholic Church to own and maintain cemeteries is recognized by statute. N. J. S. A. 16:16 — 11.

Because Holy Cross Cemetery is not an incorporated cemetery association, N. J. S. A. 8:2-24 (quoted above) does not apply here and Friant, supra, is not a controlling precedent for this ease. This conclusion leads the inquiry back to the rules and regulations of Holy Cross Cemetery. They require applications for interment to be made in advance of any burial and specify various conditions to be met by an applicant. At page 16 of the booklet containing the rules and regulations the following provision is found:

If the application is for interment of others than the immediate family of the owner of the lot or grave, permission in writing or in person from such owner must be presented.

Galasso was, of course, a part of the immediate family of plaintiff, and she was an owner, although not the sole owner. Was she required, under the quoted regulation, to get consent from all co-owners to place her husband’s body in the mausoleum ? It is my judgment that she was not. If plaintiff had died and if her husband or anyone else had made application to Holy Cross Cemetery for interment of her body, there surely would have been no need to ask co-owners for permission to use the Del Guercio tomb. The ownership interest of plaintiff would have been enough to rule out any such requirement. It is my view that the regulation of Holy Cross Cemetery, quoted above, puts deceased members of the immediate family of a co-owner in the same class, in this respect, as a deceased owner or co-owner. If that were not so, any degree of ownership of a cemetery plot, less than sole ownership, would have questionable practical value; burial of a co-owner’s spouse or child could always be blocked by a refusal of another owner to consent to burial.

It is my view that the proper construction of the rule under consideration is to read it this way:

If tlie application is for interment of others than the immediate family of the owner [or a co-owner] of the lot or grave, permission in writing or in person from such owner [or from all such co-owners] must be presented.

It follows that plaintiff needed no permission from her brother for the burial in the Del Guercio mausoleum of her husband, a member of her immediate family. It also follows, I think, that plaintiff was not restricted in her choice of empty spaces. A cemetery lot may be held by two or more persons in common. 14 Am. Jur. 2d, Cemeteries, § 26 at 134. A general rule of tenancies in common is that no cotenant has a right to exclude other cotenants or to appropriate to his sole use any particular portion of the propertjr in which all have an individed interest, 20 Am. Jur. 2d, cotenancy and joint ownership, § 34, 126, and when the complaint was filed the controversy related only to empty places in the. tomb, one of which defendant Del Guercio sought to reserve to himself for future use, contrary, it seems, to the stated general rule.

Antrim v. Malsbury, 43 N. J. Eq. 288 (E. & A. 1887), involved an attempt to keep a particular grave site from being used, so that it might be used sometime in the future for the burial of a member of another family. That ease was instituted by members of the Malsbury family for the purpose of establishing the right to bury Mrs. Malsbury by the side of her deceased husband in a free burial ground owned by a church. Opposition came from the trustees of the church and members of the Wright family on the basis that the particular plot had previously been appropriated by Mr. Wright for his own and family use. The court held there was insufficient proof as to the appropriation of any lot by any individual or family, and therefore neither plaintiffs nor defendants had any better claim to use the particular plot in question. The court concluded that the burial ground was purchased by the church for all its members, to be buried therein as their deaths might occur. Consequently, no individual member could reserve for his own future use any graves which were held by the church for the benefit of all.

Another case of some interest is Ryan v. Schmit, 1 Wis. 2d 215, 83 N. W. 2d 685 (Sup. Ct. 1957), where a widower, nearly three years after his wife’s burial, sued to compel the moving of her body from one grave site to another within a plot which the wife at the time of her death owned in common with her two sisters. Plaintiff at the time of the funeral had instructed the undertaker to place the body in grave number 1 on the plot, but the burial was in grave number 4 by direction of the two sisters. The court refused to order the sisters, the undertaker and the cemetery to permit disinterment and reburial in grave number 1, saying in part:

Plaintiff contends for a rule that when several persons are entitled to burial in a lot containing several grave sites, each shall have his choice among the sites available at the time of his death. Plaintiff phrases his rule: “first dead, first choice.” This rule is not contained in any statute. It is not alleged that any regulation of the Cemetery, any terms of its conveyance of the lot, nor any agreement among the owners so provides. Plaintiff has cited no case which applies such a rule.
We are mindful of the fact that co-owners may disagree as to who shall lie next to whom and that an unfortunate situation might arise where disagreement prevented burial within the family lot. If the court were then asked to intervene, it might, resort to the rule urged by plaintiff, if no other basis for resolving the dispute appeared more equitable under all the circumstances. The right being vindicated by the court in such a case would be the right of burial on the family lot, rather than any right to a particular location. It should be noted that the action before us is one to erect disinterment, brought two years and ten months after the burial. A formula which might commend itself as an expedient means of resolving a dispute which obstructed rightful burial does not delineate a right which a court must vindicate by ordering disinterment and transfer to another site on the same lot. [83 N. W. 2d at 688]

Mrs. Galasso’s action was started before her husband’s burial, and the actual ruling of the Wisconsin court has no application here, but the quoted comments from the opinion are helpful. I think the equitable decision here is to recognize plaintiff’s right to have her husband’s body laid to rest in the mausoleum and, beyond that, do nothing to interfere with her choice of a particular location within the structure not already occupied as a result of an earlier burial.

The judgment to be prepared by plaintiff’s attorney should declare the right of Mrs. Galasso to have her husband buried in the Del Guercio mausoleum and enjoin the defendants from removing the coffin from the location in which it has been placed unless Mrs. Galasso should consent to such removal.


author: Feitz, J. A. D.

text:
    PUBLIC SERVICE COORDINATED TRANSPORT, A CORPORATION OF NEW JERSEY, PLAINTIFF-APPELLANT, v. DELAWARE RIVER PORT AUTHORITY, A BODY CORPORATE AND POLITIC CREATED BY COMPACT BETWEEN THE STATE OF NEW JERSEY AND THE COMMONWEALTH OF PENNSYLVANIA, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued March 29, 1971
    Decided April 14, 1971.

      Before Judges Goldmark, Leokabd and Feitz.

      Mr. Richard Fry ling argued the cause for appellant (Mr. Walter S. Cramer, attorney).

      Mr. F. Stevenson Fluharty argued the cause for respondent (Messrs. Duane, Morris & Heckscher, attorneys, Mr. Roland Morris of counsel).
   The opinion of the court was delivered by

Feitz, J. A. D.

This is an action by plaintiff Public Service Coordinated Transport to recover from defendant Delaware Biver Port Authority a portion of certain bridge tolls paid under protest. Plaintiff paid these tolls from a date when defendant raised the tolls until a reduction in the tolls some months later following an administrative hearing regarding the reasonableness of the toll structure. Plaintiff seeks to recoup the- difference between the amount of the tolls paid and the later adjustment.

The essential facts are not in dispute. Defendant is a bistate body corporate and politic created by compact between the State of New Jersey and the Commonwealth of Pennsylvania, consented to by the Congress of the United States. That compact authorized defendant to own and operate the Walt Whitman and Benjamin Franklin Bridges which cross the Delaware River between Camden, New Jersey, and Philadelphia, Pennsylvania.

Defendant’s toll rates have at all times been and remain subject to the provisions of section 503 of the General Bridge Act of 1946 as amended (33 U. S. C. § 526), which reads as follows:

Amount of tolls
If tolls shall be charged for the transit over any interstate bridge of engines, cars, street cars, wagons, carriages, vehicles, animals, foot passengers, or other passengers, such tolls shall be reasonable and just, and the Secretary of Transportation may, at any time, and from time to time, prescribe the reasonable rates of toll for such transit over such bridge, and the rates so prescribed shall bo the legal rates and shall be the rates demanded and received for such transit.

Plaintiff is a motor carrier of passengers for hire and operates, among other services, interstate service between points in New Jersey and points in other states, including the Commonwealth of Pennsylvania. Its buses annually make numerous crossings over the Delaware River on defendant’s bridges.

Defendant charges tolls for vehicular crossings of the aforementioned bridges. During the latter part of January 1968 defendant announced its intention of increasing its various toll rates effective February 1, 1968. The purpose of such increase was to provide financing for the construction of two new bridges, a high-speed transportation facility between Lindenwold, New Jersey, and Philadelphia, and certain other facilities and improvements. Included among other increases was the raising of the bus toll rate from 50^ to $1 per crossing.

Subsequent to the increase in rates, complaints with respect thereto were made to the Federal Highway Administrator who, by virtue of a chain of legislation and delegation, succeeded, to the authority of the Secretary of the Army as prescribed in section 503 of the General Bridge Act.

An administrative hearing plumbed the matter in depth. Plaintiff, among others, participated fully. The hearing examiner, on extensively detailed findings and conclusions, determined in part, that the bus tolls should be reduced and recommended a 10% downward adjustment to 90^f. We note that the Federal Highway Administration was represented as an interested entity at the hearing and that its brief, filed for the hearing officer’s benefit, concluded that “a reduction should be made in bus tolls from $1.00 to 75 cents or in the alternative a 10% discount be granted busses based on frequent use; and that with this adjustment the tolls should be found just and reasonable.”

Despite an apparently contrary finding below, we are satisfied that the hearing officer made a specific finding “that the present bus tolls [i. e., $1] are above the zone of reasonableness.”

Exceptions to the report and the recommended order were filed with the Federal Highway Administrator who, on September 11, 1968, filed his opinion. With the express exception of the bus tolls, about which more later, the Administrator concluded that “the examiner’s recommended toll structure * * * is just and reasonable and [I] am adopting the findings of fact he has made.” We conceive this to be an adoption of the finding of unreasonableness with respect to the $1 bus toll, although it should be noted that the Administrator found later (in an opinion and order filed on December 11, 1968, on a petition for reconsideration by the City of Philadelphia) that “the Administrator did conclude that the Port Authority had made a prima facie showing that its toll schedule was reasonable. Although the opinion did not specifically so state, that conclusion is implicit.” This subsequent opinion and order denied the petition for reconsideration and specifically declared that “the proceedings in this case are hereby terminated.”

With respect to the exception concerning the bus tolls, the Administrator concluded his earlier opinion as follows:

I find that if the present toll schedule is revised so as to (1) reduce the present bus toll rate by 25 percent, and (2) provide a 10 percent scrip discount for trucks over 7,000 pounds gross weight as recommended by the examiner, that the resulting toll schedule is reasonable and just. Unless the DRPA toll schedule is so revised within 20 days from the date of this opinion the Administrator will issue an order prescribing such rates as the legal rates to be charged by the Authority.

Defendant did not seek administrative or judicial review or reconsideration of the Administrator’s action, nor did it wait for the Administrator to implement his opinion by-order. Defendant reduced the bus toll rate from $1 to 75 j, effective October 1, 1968.

Plaintiff seeks reimbursement for the difference between the $1 per trip it paid during the period from February 1 to October 1, 1968, and the 75^ per trip rate found to be within the zone of reasonableness by the Administrator and fixed by defendant as the toll effective October 1, 1968. The parties agree that during this period plaintiff’s buses made 465,125 crossings at the $1 rate and the amount in controversy is established to be $116,281.

Plaintiff sued defendant in the Law Division of the Superior Court for these damages, asserting that “the amount so charged and collected by defendant was unreasonable and unjust, was excessive to the extent of 25^ per crossing, and to that extent was illegal by virtue of the provisions of Section 503 of the General Bridge Act of 1946, 60 Stat. 847, 33 U. S. C. § 526.” An answer was filed by defendant, who then responded to plaintiff’s appropriate request for admissions, from which record the foregoing facts appear. As observed above, these facts are not in dispute. Cross-motions for summary judgment were filed. This appeal is from a summary judgment entered in favor of defendant and from denial of plaintiff’s motion for summary judgment.

We concur in the result reached below.

Plaintiff bottoms its action upon the existence of a common law right of reparations. Although the cases are not in harmony and the matter cannot be said to be entirely free from doubt, it would appear that such a right existed. Texas and Pacific Railway Company v. Abilene Cotton Oil Company, 204 U. S. 426, 27 S. Ct. 350, 51 L. Ed. 553 (1907) (hereinafter Abilene); cf. Ocean Grove Camp Meeting Ass’n v. Bradley Beach, 91 N. J. L. 364 (C. P. 1918), aff'd o. b., 93 N. J. L. 249 (E. & A. 1919), where it is said (91 N. J. L. at 366) that “the law raises an assumption to refund the money which can no longer be honestly retained.” There is authority to the contrary. Atlantic Lumber Corp. v. Southern Pacific Co., 47 F. Supp. 511 (D. Ore. 1942). It appears clear that charges paid to governmental authorities may be recouped in cases where there is no proper warrant for the charge. Kastens v. West New York, 88 N. J. Super. 224 (App. Div. 1965), Smith v. Jersey City, 52 N. J. L. 184 (E. & A. 1889), Forbes Pioneer Boat Line v. Board of Commissioners, 258 U. S. 338, 42 S. Ct. 325, 66 L. Ed. 647 (1922), reversing 80 Fla. 252, 86 So. 199 (Sup. Ct. 1920). But cf. Alfred Vail Mutual Ass’n v. Halpin (New Shrewsbury), 107 N. J. Super. 517 (App. Div. 1969), aff'd 58 N. J. 40 (1971).

We need not resolve here the issue of the existence of reparations at common law, since we are satisfied that under Abilene, supra, and T. I. M. E., Inc. v. United States, 359 U. S. 464, 79 S. Ct. 904, 3 L. Ed. 2d 952 (1959), the matter of these bridge tolls is the subject of regulatory legislation sufficient to extinguish a common law right to reparations if such existed.

The matter is not without difficulty. Reduced to basic analysis the holdings in Abilene and T. I. M. E. seem at first blush to converge and blend into the unlikely propositions that: If sanctions are provided in the legislation, an intent to extinguish the common law right is demonstrated. If sanctions are not provided, the same intent can be found on the basis that the legislative body, having elsewhere provided for sanctions and having thus recognized its power to impose such sanctions, would have provided for them if they were intended. We suspect an implicit judicial recognition, with which our own opinion accords, that common law sanctions are, in all practicality, inconsistent with legislative regulation where rates for public utilities — e. g., bridge tolls — are concerned. Consistent with the rationale of Abilene and the majority opinion in T. I. M. E., we hold to the opinion that in this day of universal administrative control of rate making in the public interest, such rule is sound. Nor should there be any necessity to arrive at such a declaration by a tortured application of the factual situation.

Thus viewed, any irrationality between T. I. M. E. and Abilene, so vigorously decried by the dissent in T. I. M. E. where Justice Black complained he was "unable to understand why the Court strains so hard to reach so bad a result,” not only can be explained and understood, but also serves to recall the wisdom of Justice Holmes in his observation that "various circumlocutions” are employed because “constitutional principles must leave some play to the joints of the machine.” Forbes Pioneer Boat Line v. Board of Commissioners, supra, 258 U. S. at 340, 42 S. Ct. at 326, 66 L. Ed. at 649 (1922).

Be all this as it may, the fact remains that we are controlled by the T. I. M. E. decision. It was there held (in a determination that the Abilene result "did not rest upon the fact that under Part I [of the Interstate Commerce Act] the I. C. C. had reparations authority with respect to unreasonable charges paid by shippers”) that "the crucial question of reasonableness [cannot] be decided by the courts.” Or as pungently paraphrased in the dissent, that “primary jurisdiction [in the administrative body] is inconsistent wtih court remedies of any kind.”

It is appropriate to observe here that a major thesis of the dissent in T. I. M. E now seems unsound. The dissent insisted that legislative history of the Motor Carrier Act involved in T. I. M. E. (but not in Abilene) demonstrated congressional understanding of Abilene that if sanctions were not expressly provided, the common law sanctions would be preserved. Despite the far-reaching import of the T. I. M. E. decision, with the attendant insistence of the dissent that congressional intent had been subverted, Congress on August 24, 1962, by Pub. L. 87-595, § 1, 76 Stat. 397, amended section 216 of the Motor Carrier Act, 49 U. S. C. § 316, having to do with rates, without legislatively altering the impact of T. I. M. E. and without changing the provision of that act which, before T. I. M. E. and since, reads, “Nothing in this section shall be held to extinguish any remedy or right of action not inconsistent herewith.” We presume that the legislators were aware of the T. I. M. E. holding.

The practical reasons for the soundness of such a rule are obvious. If common law sanctions were preserved to plaintiff, they would of necessity be preserved in any similar situation to the many hundreds of thousands of commuters and transients who used such a bridge and paid a toll later found to be above the zone of reasonableness. The multitude of claims which might follow, all potentially the subject of litigation in the courts, extends beyond reason. Worse, the disparate results almost certain to flow from a succession of trials would demonstrate precisely the inequalities abhorred in Abilene. As in Abilene, this alone would frustrate' the purpose of the legislation and is inconsistent with its intent.

The question of reasonableness of bridge tolls is not a matter for the courts, but has been exclusively preempted by legislation imposing the obligation upon the proper administrative authority under the regulation of section 503 of the General Bridge Act of 1946.

Even were this not so, the result achieved below was correct. There is no disagreement, even as between the majority and dissent in T. I. M. E., that reasonableness of rates is in any case first a matter for the administrative agency whose “primary jurisdiction” is unquestioned. In the instant matter the only determinations heretofore administratively made are that $1 was above the zone of reasonableness and that 75^5 was within the zone of reasonableness. The extent to which the 25 <t differential, or any part thereof, has crossed the line marking the extremes of the zone of reasonableness has not been so determined, and should in no event be first determined by a court. Abilene and T. 1. M. E. contain nothing to the contrary. In fact, it would appear that the litigants in T. I. M. E. both conceded that “the question of reasonableness of past rates cannot itself be decided in the courts” but is a matter for administrative agency determination. 359 U. S. at 468, 79 S. Ct. at 907, 3 L. Ed. 2d at 956.

Montana-Dakota Utilities Co. v. Northwestern Public Service Co., 341 U. S. 246, 71 S. Ct. 692, 95 L. Ed. 912 (1951), where fraud was asserted, and Hewitt-Robins, Inc. v. The Eastern Freight-Ways, Inc., 371 U. S. 84, 83 S. Ct. 157, 9 L. Ed. 2d 142 (1962), having to do with routing rather than rates, are distinguishable.

The judgment is affirmed. Uo costs.