author: Triarsi, J. S. C.

text:
    STATE OF NEW JERSEY, PLAINTIFF, v. WILLIAM CAHILL, DEFENDANT.
    Superior Court of New Jersey Law Division — Criminal
    Decided October 23, 1973.

      Mr. Richard Pizzi, Assistant Prosecutor, for plaintiff.

      Messrs. McGlynn, Ruprecht & Graham, attorneys for defendant (Mr. Louis A. Ruprecht of counsel and on the brief).
   Triarsi, J. S. C.

This is a Motion for a new trial pursuant to R. 3:20-l on the grounds that the verdict was against the weight of the evidence and that there was a manifest denial of justice under the law. Defendant was charged in a four-count Indictment with:

1. Assault with an offensive weapon—2A:90~3
2. Illegal possession of a weapon—2A:151-41
3. Extortion—2A:105-4
4. Extortion while armed—2A:151-5

The case was tried in the Superior Court, Union County and resulted in a jury verdict of guilty as to simple assault and extortion. Count 2, illegal possession of a weapon, was dismissed on motion of the prosecutor and was not considered by the jury. The defendant was found not guilty on the other counts.

The principal thrust of defendant’s argument is that the State knowingly failed to correct false statements made by one of its witnesses by neglecting to bring to the attention of the jury a prior inconsistent and exculpatory statement by said witness, and further, by failing to correct certain statements made by the said witness on cross-examination that were known to the prosecutor to be false.

This is not the typical use of perjured testimony type case where a prosecutor actively or negligently fails to disclose information or prior dealings to defense counsel in an attempt to obtain a conviction. In fact, the record discloses that the prosecutor had made every disclosure required of the State in a criminal case as soon as the information became known to him. This discovery was provided despite the fact that no discovery motion was made pursuant to R. 3 :13-3 (a), ’(b) 'and (c) by defense counsel and no order of discovery was in effect at any time during these proceedings.

A brief review of the pertinent facts discloses that defendant and one Battifarano were originally co-defendants; however, on the second day of trial Battifarano pled guilty to an assault with an offensive weapon charge. The prosecutor and defense counsel stipulated that sometime immediately prior to this plea, Battifarano, his attorney Mr. Deer, and ■the prosecutor engaged in plea bargaining at which time Mr. Battifarano gave the prosecutor a statement that “Mr. Cahill did not have a gun while perpetrating the alleged offense.” Subsequently, Deer met with defendant and defense counsel and informed them of Battifarano’s statement concerning the absence of a gun during the perpetration of the alleged incident. It was during this recess that the prosecutor decided to withdraw the plea bargain offer, stating that he did not believe Mr. Battifarano’s story, and he so informed not only Deer, Battifarano’s attorney, but also defense counsel herein. The plea offer was subsequently reinstated without its being contingent upon Battifarano testifying in the ease as previously stipulated, and Battifarano entered a plea of guilty to the assault with an offensive weapon charge.

On July 2, 1973 Battifarano testified on behalf of the State and on direct examination stated that defendant had used a gun in perpetrating the alleged offense. The prosecutor permitted this statement to rest unchallenged before the jury and did not attempt to correct, dilute or effect the same. He did not attempt or bring to the attention of the witness before the jury the prior inconsistent exculpatory statement. Additionally, certain testimony in the same vein elicited during cross-examination of the witness that is hereafter set forth, was permitted to rest unmolested, thus giving rise to the crucial question on this motion.

The pertinent facts of the Battifarano cross-examination above referred to are:

Q. After yon decided to enter yonr plea of guilty to assault with an offensive weapon, did you have a discussion with your attorney as to whether or not you were going to be testifying in this case?
A. Yes.
Q. In that discussion with your attorney, was the subject of whether or not there was a gun on the premises mentioned?
A. No.
Q. Never?
A. No.
Q. Before your testimony today, have you ever told anybody that there was no gun on the premises that evening?
A. I didn’t tell anybody there was no gun on the premises.
Q. Before your testimony today, have you ever told anybody that it was your intention to testify that there was no gun on the premises?
A. No.
Q. You’ve never said that?
A. No.

The issue herein is -whether the prosecutor is under an affirmative duty to disclose to the court and jury any prior inconsistent and exculpatory statement of his own witness, and further, whether the prosecutor is ¡under an affirmative duty to correct false statements made by his own witness before a jury where both counsel are aware of the falsity.

It is uncontrovertedly the law in New Jersey and all the states that the suppression of exculpatory evidence or use of perjured testimony by the State, whether willful or merely negligent, deprives the defendant of a fair trial. Brady v. Maryland, 373 U. S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963); Napue v. Illinois, 360 U. S. 264, 79 S. Ct. 1173, 3 L. Ed. 2d 1217 (1959).

This principle — that the State may not knowingly use false evidence, including false testimony, to obtain a tainted conviction — implicit in any concept of ordered liberty, does not cease to apply merely because the false testimony goes only to the credibility of the witness. Napue v. Illinois, 360 U. S. 264, 269, 79 S. Ct. 1173, 3 L. Ed. 2d 1217 (1959); State v. Taylor, 49 N. J. 440, 453 (1967).

In order to be entitled to relief on the ground that false or perjured testimony was used in obtaining a conviction, a defendant must establish that (1) the testimony was false or perjured; (2) it was material to the conviction, and (3) the prosecutor either participated in or had knowledge of the falsity. Jackson v. United States, 338 F. Supp. 7 (D. C. N. J. 1971).

There can be no denial of the fact that the witness, prior to his damaging testimony, gave the prosecutor an exculpatory statement; further, there can be no denial that during his cross-examination the witness testified falsely to a highly material fact; and still further, there can be no denial that the prosecutor did not attempt to correct these matters before the jury This action or inaction was highly prejudicial to the defendant for it not only pertained directly to the credibility of the witness but also to the highly material issue of whether defendant used a gun in the perpetration of the offense charged.

It therefore remains for this court to decide the third element, namely, whether the prosecutor participated in the falsity through design or neglect. The conclusion is inevitable. No charge has been fostered that the prosecutor acted designedly, nor has any such thought been considered by the court. He erred.

The prosecution would have this court distinguish the Brady line of cases and the present case because those cases deal with active or negligent concealment by a prosecutor of deals or statements previously made of which defendant was unaware at the time of trial. It is argued that since defense counsel knew of the prior inconsistent statement, the prosecutor was under no duty to disclose that fact to the court and jury because full disclosure of these statements had already been made by the prosecutor to defense counsel, and it was therefore up to defense counsel to pursue the point on cross-examination or else waive his right.

It has been held that a defendant may waive his right to relief on the ground that perjured testimony was used, where he knows of the perjured or false nature of the testimony but makes no attempt to demonstrate its falsity by cross-examination or by his own testimony or by use of rebuttal witnesses who are readily available at trial. McGuinn v. United States, 99 U. S. App. D. C. 286, 239 F. 2d 449 (D. C. Cir. 1956); Green v. United States, 256 F. 2d 483 (1 Cir. 1958). See also, People v. Lueck, 24 Ill. 2d 554, 182 N. E. 2d 733 (Sup. Ct. 1962). However, this court finds a distinction in the present ease from the above cases in that the defense counsel in this case did vigorously cross-examine the witness and repeatedly received a negative response to the question of whether he had ever made a prior statement concerning the absence of a gun.

In Mooney v. Holohan, 294 U. S. 103, 55 S. Ct. 340, 79 L. Ed. 791 (1935), the Supreme Court held that knowing use by the State of perjured testimony to obtain a conviction, and the deliberate suppression of evidence to impeach that testimony, constituted a denial of due process of law. Recently in People v. Faulkner, 7 Ill. App. 3d 221, 287 N. E. 2d 243 (App. Ct. 1972), the Illinois court held that it is also the prosecutor’s duty as a representative of the people to see that defendant receives a fair trial, and when he learns his witness has made an untrue statement, even if only as to a collateral issue, he is duty-bound to inform the court and jury of its incorrectness.

Further, the United States Supreme Court recently held that the good or bad faith of the prosecutor is irrelevant where false testimony is concerned. A new trial is required in a criminal case if false testimony by a state witness is allowed to go uncorrected when it appears that it could in any reasonable likelihood have affected the judgment of the jury. Whether the nondisclosure was a result of negligence or design, it is the prosecutor’s responsibility to disclose the incorrectness of the witness’s statement. Giglio v. U. S., 405 U. S. 150, 92 S. Ct. 763, 31 L. Ed. 2d 104 (1972).

This State has cited with approval, in State v. Taylor, supra, the principle set forth in People v. Sauvides, 1 N. Y. 2d 554, 154 N. Y. S. 2d 885, 136 N. E. 2d 853 (Ct. App. 1956), that:

It is of no consequence that the falsehood bore upon the witness’s credibility rather than directly upon defendant’s guilt. A lie is a lie, no matter what its subject, and, if it is in any way relevant to the ease, the distriet attorney has the responsibility and duty to correct what he knows to be false and elicit the truth, [at 557, 154 N. Y. S. 2d at 887, 136 N. E. 2d at 854 (Emphasis added)]

It is the opinion ol this court that this principle is so deeply rooted in the fair trial concept that the fact that defendant and his counsel were aware of its falsity does not relieve the prosecutor of an affirmative duty to come forward with the truth, especially in this case since the only possible rebuttal witnesses available were Battifarano’s defense counsel and the prosecutor himself. It seems manifestly unjust on these facts to require defense counsel to seek rebuttal witnesses when the prosecutor has the truth at his fingertips.

In light of the totality of the circumstances as herein set forth, this court finds that there was a manifest denial of justice and therefore, in the interest of justice, this court vacates the judgment and grants the defendant’s motion for a new trial.

This court previously disposed all other issues raised by the defense and finds no reason to reiterate its rulings.


source: Caselaw Access Project

author: Yaccarino, J. S. C.,

license: Public Domain

text:
    STATE OF NEW JERSEY, PLAINTIFF, v. THOMAS CONNERS, DEFENDANT.
    Monmouth County Court Criminal Division
    Decided November 13, 1973.

      Mr. Paul Feldman for defendant (Mr. Charles Frankel, attorney).

      Mr. John Mullaney, Assistant Prosecutor for the State (Mr. James W. Coleman, Jr., Prosecutor of Monmouth County, attorney).
   Yaccarino, J. S. C.,

Temporarily Assigned, Defendant appeals from a municipal court conviction of driving under the influence of intoxicating liquor in violation of N. J. S. A. 39 :4-50(a). The appeal was heard de novo on the record.

On September 26, 1972 at approximately 5 p.m. Officer Capraun of the Manalapan Township Police Department was dispatched to the scene of an accident on Route 527 near Rifkins Farm. Upon his arrival at the scene the officer observed a truck lodged halfway into a house which was under construction.

Defendant, who was nearby, advised the officer that he had been driving the truck down the roadway when the door of the truck flew open, causing him to lose control of the vehicle.

The officer testified that he smelled an apparent odor of alcohol on defendant’s breath. Defendant’s eyes were bloodshot and glazed, his clothing was in disarray, his speech was slurred and he fumbled through his wallet in search of his license and registration. Defendant had to lean on the patrol car for balance. The officer also observed that defendant had visible scrapes and scratches about his face and elbow. The officer rendered on-the-scene first aid and then requested defendant to perform certain balance tests. Upon defendant’s refusal he was placed under arrest for suspected drunken driving.

Defendant was taken to the Freehold Area Hospital for emergency treatment and thereafter to Manalapan Township Police Headquarters. During the ride from the hospital to headquarters defendant agreed to submit to a breathalyzer test. Upon arrival at headquarters the officer who was to conduct the test advised defendant that he did not have to take the test. Thereupon, defendant advised the officer that he refused to submit to the test. Thereafter, defendant’s wife arrived at police headquarters and sought to post bail, which had been fixed at $250. She talked to the police officers and then conferred with defendant, who reconsidered his refusal to take the test and “voluntarily” submitted to the examination. The breathalyzer reading was .26%.

What then followed was a rather bizarre course of conduct by the police which included, among other things, the police department’s refusal to accept the cash bail they had fixed, the fingerprinting and photographing of defendant over his objection, the handcuffing of defendant to a post at headquarters, and the ultimate jailing of defendant at the Monmouth County Jail because of his refusal to sign an “arrest form.” This conduct was later termed by the police chief as “standard procedure” for this type of motor vehicle violation.

Defendant explained his conduct as being the result of physical injuries sustained in the accident. With regard to the exceptionally high reading on the breathalyzer, defendant contends that it was caused by the spraying of his mouth with a breath spray that contained 34.6% alcohol prior to the test to eliminate mouth odor which might have affected the test results.

Defendant contends that the court should exclude the breathalyzer test readings because (1) there was no evidence that the machine was in proper working order, the inspection certificates being inadmissible hearsay; (2) his consent to submit to the test was the product of duress, thereby requiring the suppression of the readings, and (3) the manner in which the police obtained his consent was so unfair that it violated the “due process clause” and “fundamental fairness clause” of the Federal Constitution.

The State contends that the inspection certificates of operability are admissible, relying upon Evidence Rule 63(13). It further contends that defendant’s consent was freely given and was not the product of duress.

The court will first consider defendant’s contention that the test readings were taken without his consent and should be suppressed.

Motions to suppress evidence which may be used against an accused in a municipal court proceeding are required to be heard in the Superior Court or County Court. R. 3:5-7. The failure to move timely to suppress the results, either before or during that trial, bars an application made for the first time on an appeal de novo on the record. State v. Swiderski, 94 N. J. Super. 14 (App. Div. 1967); State v. Ferrara, 81 N. J. Super. 213 (Cty. Ct. 1963).

The court will next consider defendant’s contention that the machine testing results, called certificates of operability, were inadmissible.

During the trial the police officer who administered the test to defendant produced two certificates prepared by a State Police coordinator. Over objection, they were received into evidence. The thrust of these certificates is that the officer tested the machine both before and after the time period in which defendant took the test, and the machine was found to be accurate. It is conceded by the state that, absent evidence that the machine was in good working order at the time that defendant took the test, the results or readings are inadmissible.

The use of the breathalyzer reading as reliable evidence was passed upon in State v. Johnson, 42 N. J. 146 (1964). There the court adopted the following statement from State v. Miller, 64 N. J. Super. 262, 268 (App. Div. 1960) :

The Drunkometer is sufficiently established and accepted as a scientifically reliable and accurate device for determining the alcoholic content of Hie blood to admit testimony of the reading obtained upon a properly conducted test, without any need for antecedent expert testimony by a scientist that such reading is a trustworthy index of Mood alcohol, or why.

The Supreme Court set forth a caveat at the conclusion of its opinion:

It is, of course, most essential, in view of the heavy impact the result can have, that proper administration of the test be clearly established before the reading is admitted in evidence. This includes full proof that the equipment was in proper order, the operator qualified and the test given correctly (as well as the fact that the defendant consented orally or in writing). [42 N. J. at 171 emphasis added) ;

In order to understand what the Supreme Court meant by “full proof that the equipment was in proper order,” it is necessary to consider the testimony upon which the court rested its opinion. An examination of the transcript of the testimony in Johnson reveals that Trooper Narcisco Chiappelli testified at length as to his testing of the accuracy and operability of the drunkometer machine at the time the test was administered to the defendant. He was cross-examined at length on this issue. Because the statute creates a presumption from the breathalyzer readings alone, it is imperative that the machine be in accurate working order.

In the case before this court the State contends that such proof is not necessary, but rather the certificates issued by the officer who conducts the before and after testing of the machine and concludes that it is in proper order are admissible in lieu of his testimony. The right of confrontation and cross-examination, therefore, rests upon a conclusion en-capsuled in a “certification” that such are the facts. The State relies upon Evidence Rule 63(13), whidh provides as follows:

A writing offered as a memorandum or record of acts, conditions or events is admissible to prove the facts stated therein if the writing or the record upon which it is based was made in the regular course of a business, at or about the time of the act, condition or event recorded, and if the sources of information from which it was made and the method and circumstances of its preparation were such as to justify its admission.

This rule is generally referred to as the business entry exception to the hearsay rule. This exception is generally limited to business records. “The rule reflects the realization that records trusted and relied upon by businessmen are indispensible in commercial litigation * * * Mahoney v. Minsky, 39 N. J. 208 (1963).” (N. J. Rules of Evidence (1972), at 264; section 63(13)-1, “History & Theory.”; emphasis added); Records other than commercial payment records have been held to be within the rule. Some records of public agencies are admissible for specified purposes. See Sas v. Strelecki, 110 N. J. Super. 14 (App. Div. 1970); Fagan v. Newark, 78 N. J. Super. 294 (App. Div. 1963). The rule has been used to admit bank records in tax fraud cases, Zacher v. United States, 227 F. 2d 219 (8 Cir. 1955); Papadakis v. United States, 208 F. 2d 945 (9 Cir. 1953), and to admit photostatic copies of freight bills in a prosecution for improper transportation of dangerous explosives, West Coast Fast Freight v. United States, 205 F. 2d 249 (9 Cir. 1953). However, in Hartzog v. U. S., 217 F. 2d 706 (4 Cir. 1954), the court held that government work sheets used in the prosecution for income tax evasion were inadmissible because they were made in preparation for prosecution and because they were the product of the author’s judgment and discretion and not the product of any efficient clerical system. The court stated:

There was no opportunity for anyone * * * to tell when an error or misstatement had been made. These worksheets were no more than Baynard’s [the preparer of the worksheets] unsworn, unchecked version of what he thought Hartzog’s records contained. Applying the criterion of the Hoffman case, that admissibility is to be determined by “the character of the records and their earmarks of reliability * * acquired from their source and origin and the nature of their compilation,” Hoffman v. Palmer, 318 U. S. 109, at page 114, 63 S. Ct. 477, at page 480, 87 L. Ed. 645 we hold that these worksheets were inadmissible as evidence of the truth of their contents. (Citations omitted) [at 730]

It has not been suggested in this jurisdiction that the testing of a breathalyzer machine as to its proper working order can be proven by certificates. Admissibility of inspection certificates has been dealt with in other jurisdictions by statute (e. g., Pennsylvania Vehicle Code, 75 P. S. §1002 (d); see Commonwealth v. Parish, 138 Pa. Super. 593, 10 A. 2d 896) (Super. Ct. 1940).

This case is of first impression in New Jersey, as there appears to he no reported case. This court cannot conceive of how this record of scientific conclusion can be admitted without proof of the accurate operability of the machine, especially when such admission creates a presumption at law carrying criminal sanctions (N. J. S. A. 39 :4-50.1.) Inspection certificates have been admitted into evidence in Municipal and County Courts in the past. The rationale of these courts has been that the certificate is entered into evidence to show that on a certain date the breathalyzer was tested for accuracy and, as the State stated in its brief, “to reflect the results of the test.” Without testimony and cross-examination of the coordinator who tested the machine, the certificate becomes the sole proof of the machine’s accuracy, and in reality it is often accepted as the “full proof” required for conviction. Trial by this machine without proof of its accuracy holds no place in our system of jurisprudence.

Even if Evidence Rule 63(13) were applicable, which this court holds it is not, there was no required supporting testimony whatever that the record was made in the ordinary course of business.

This court has considered the applicability of Evidence Rule 63(16), which provides as follows:

Subject to Rule 64, a writing made as a record, report or finding of fact is admissible if (a) the maker was authorized by statute to perforin, to the exclusion of persons not so authorized, the functions reflected in the writing, and was required by statute to file in a designated public office a written report of specified matters relating to the performance of such functions, and (b) the writing was made and filed as required by the statute, [emphasis added]

This rule requires that the maker of the report be authorized by statute and that the writing was filed as required by statute. An examination of N. J. S. A. 39:4-50 et seq. reveals that there is no statutory authorization or requirement with reference to the testing of a breathalyzer or the filing of the test results. In addition, Rule 63 (16) is “subject to Buie 64.” There is no evidence in the record which indicates that the notice requirement of Buie 64 was. complied with.

It should be noted that the court, in answer to inquiry addressed to a deputy attorney general present in court on a like case, was advised that the Attorney General’s office produces the coordinator in all cases where a breathalyzer test was administered and the results are to be offered into evidence.

The court, therefore, concludes that “full proof” as required by State v. Johnson, supra, 42 N. J. 146, is not satisfied by the introduction of certificates in lieu of testimony. Accordingly, defendant’s objection is sustained, and the readings of the breath test are excluded from the court’s consideration.

In light of the Court’s ruling excluding the breath test, defendant’s contention that his consent was the product of duress and the due process contention are moot.

The final issue deals with the question of whether the State, absent the breath test, has proved that defendant operated a vehicle while “under the influence,” while “impaired,” or neither. N. J. S. A. 39:4-50(a), (b).

While the cases are legion dealing with objective manifestations demonstrating “under the influence,” there are no reported decisions dealing with objective signs or manifestations which distinguish “under the influence” from “impaired.” The incorporation of the lesser offense “impaired” requires a review and reassessment of prior decisions dealing with the single offense of “under the influence.” At least one prior decision dealing with the issue of whether or not a defendant was driving “under the influence” held that a driver whose mental or physical faculties were “impaired” by the consumption of alcoholic beverage was operating a vehicle while under “the influence.” State v. Ash, 21 N. J. Super. 469 (App. Div. 1952). Holdings of this nature are rendered nugatory by the adoption of the new offense of operating a vehicle “while impaired.” N. J. S. A. 39:4-50(b).

In order to better understand the intendment of the new act it is necessary to examine its historical development.

The prohibition against drunken driving predates the advent of the automobile. As early as 1898 New Jersey prohibited the “driving of any horse, mule or other beast of burden while under the influence of intoxicating liquor.” See N. J. S. A. 2A :170-13, repealed in 1971.

The first legislative enactment prohibiting drunken driving of a vehicle appeared in 1921 (L. 1921 c. 208, § 4). Prom the date of its enactment until 1966, when the Legislature added the new offense of operating a vehicle while one’s ability is impaired, the statute remained essentially unchanged. There were intermittent changes, but these dealt with suspension periods and the addition of influencing substances such as narcotic, habit-forming or hallucinogenic drugs.

During this period of time several scientific methods of measuring blood alcohol levels were developed. These instruments were used as an aid in the investigation and prosecution of violations of the drunken driving statute. They were developed to the point where in 1951 the Legislature provided that any person who operated a motor vehicle with a blood alcohol level of .15% was presumed to bo operating a vehicle while “under the influence” of intoxicating liquor. See N. J. S. A. 39:4-50.1 The reliability and conclusiveness of this finding was judically approved in State v. Johnson, supra, 42 N. J. 146.

Justice Hall, speaking for a unanimous court, said:

The stated presumption, that if at least 0.15 per cent of alcohol is present in the blood the subject is under the influence of intoxicating liquor for the purposes of operation of a motor vehicle, recognizes the universally accepted truth that such is physiologically the case with respect to every person, regardless of the extent of usual external manifestations, individual tolerance for alcohol or pre-existing individual physical conditions or idiosyncracies. [at 169]

Continued scientific studies and observations revealed that not only was the driver with a .15% blood alcohol level under the influence, but individuals who had a blood alcohol concentration of .10% were presumptively under the influence. Public Hearing on Assembly Bill No. 46, April 10, 1963 at 16-17. These studies, consisting of both laboratory and driving experiments, concluded that while an individual’s tolerance for alcohol and its effect is a factor in cases involving between .05% and .10% of blood alcohol concentration, at .10% all individuals were impaired or under the influence. Public Hearing, supra, at 52-53, 57-58.

An examination of all hearings held before the Senate and General Assembly clearly demonstrates that all of the foregoing conclusions are based on the scientific measurement of blood-alcohol concentration.

In order for law enforcement officials to have input from scientific testing of persons suspected of driving while under the infiuencé, it was urged that the Legislature adopt the “implied consent law.” By virtue of this law every person operating a motor vehicle over a New Jersey highway was declared to consent impliedly to. submit to a breath test or suffer a sanction for his wrongful refusal. This recommendation was adopted and is embodied in N. J. S. A. 39 :4-50.2.

The purpose of the sanction portion of the statute was to persuade every driver to submit to the test to eliminate any guesswork in determining the degree of intoxication. See Public Hearings on Senate Bills, No. 8 & 9, vol. II at 18a (1966). One witness at the hearings testified that while an examining physician could find it easy to conclude that a particular driver was impaired, that there existed 100 pathological conditions which could cause the same impairment as that caused by alcohol. Public Hearing on Assembly Bill No. 46, at 64. This was advanced as an essential reason for the adoption of the implied consent law.

Drunkenness has not been uncommon among civilized people. It is recognizable and has common symptoms. While there are degrees or states of inebriation, it is conduct discernible by lay persons as well as medical experts. Children as well as adults can detect its presence. “Impairment” caused by alcohol is somewhat different. It is not conduct so readily apparent or identifiable. It is not conduct based upon common human experience, but rather a conclusion reached by scientific monitoring under clinical conditions. See Public Hearing on Assembly Bill No. 46, at 55-56. The presence or absence of “impairment” is far more elusive than that of drunkenness. Notwithstanding the inherent difficulty in determining its presence, the Legislature has specially provided that a test is not necessary to support a prosecution or conviction of operating a motor vehicle while impaired. N. J. S. A. 39 :4-50.1 and 50.6.

Such a statutory scheme leaves the court to its own devices in determining what is “impaired” in the absence of the breath test. See State v. Cannon, 94 N. J. Super. 66, 69 (Cty. Ct. 1967), overruled on other grounds in State v. Sturn, 119 N. J. Super. 80 (App. Div. 1972). This is not an occasional problem. It is one which confronts the court in growing numbers. Statistics maintained by the Chemical Breath Testing Unit of the New Jersey State Police bear witness to this conclusion. Since 1967 this unit has maintaoined statistics accumulated by the State Police. At least 20%, or one out of every five drivers, requested to submit to a breath test have refused. During 1967 refusals totaled 259, or 23%. During the year ending June 1973, while the percentage remained basically the same, i. e., 21%, the number of refusals increased to 1,243. See Appendix A. Statistics based on the experience of all law enforcement agencies were not available. However, it is fair to assume that the rate of refusals is not greater or lesser with the State Police than it is with all municipal police departments. There are, therefore, a large number of cases presented to the courts where no scientific testing results are available as an aid in determining whether or not a driver was operating a vehicle while “under the influence,” while “impaired,” or neither.

In March 1968 the State Police prepared a manual entitled New Jersey State Police Drinking Driving Enforcement Guide. This guide contains a chart prepared from a study conducted by Kurt M. Dubowski, Ph.D., of Des Moines, Iowa. See Appendix B. The study related objective symptoms or signs with blood level testing. This chart is of assistance in determining or evaluating levels of intoxication. It sets forth several categories helpful in determining an individual’s state of intoxication. This court adopts this guide as one source of meaningful information.

Comparing defendant’s conduct and physical appearance with the standards set forth on the chart, this court finds, in the absence of a breath test, that defendant was operating his vehicle while he was under the influence of intoxicating liquor.

The facts show that defendant’s clothing was in disarray, he fumbled through his wallet in search of his registration and license, he had to lean on the patrol car for balance, and the odor of alcohol emanated from his breath, all of which are symptoms of “stage 4” conduct on the chart.

The court has considered defendant’s contention that he suffered from the adverse physical effects of the motor vehicle accident and was excited because of the police officers’ handling of the situation. In spite of evidence supporting defendant’s contentions, the court is of the opinion that the State has proved beyond a reasonable doubt that defendant was under the influence of intoxicating liquor as charged.

Accordingly, the Court finds the defendant guilty of N. J. S. A. 39 :4-50(a). Defendant is to present himself to the Court for imposition of sentence forthwith.

       The certificates take the following form:
      STATE OF NEW JERSEY Department of Law and Public Safety Division of State Police Inspection Certificate
      Instrument...............................Number.......... has been inspected and found to be in good operating order on
      Inspector ....................
      NJState Police 343 (Rev. 1-67)


author: Per Curiam.

text:
    PETER M. ROGERS, PLAINTIFF-APPELLANT, v. STATE OF NEW JERSEY, BOARD OF TRUSTEES, TEACHERS’ PENSION AND ANNUITY FUND, DIVISION OF PENSIONS, DEPARTMENT OF THE TREASURY, DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued March 20, 1973
    Decided April 11, 1973.
    Before Judges Kolovsky, Matthews and Crahay.

      Mr. Richard J. Weber argued the cause for appellant (Messrs. Madnick, Milstein & Mason, attorneys).

      Mr. Paul C. O’Connell, Deputy Attorney General, argued the cause for respondents (Mr. George F. Kugler, Attorney General of New Jersey, attorney; Mrs. Virginia Long Annich, Assistant Attorney General, of counsel).
   Per Curiam.

Plaintiff appeals from the final determination made by the Board of Trustees of the Teachers’ Pension and Annuity Fund (TPAF), at its meeting of June 6, 1972, which denied the application of plaintiff for death benefits to which he claimed to lx; entitled as designated beneficiary of his deceased mother, Mary Racioppi, who had formerly been employed as a custodial maid by the Newark Board of Education.

The last day on which Mrs. Racioppi had actually worked was in May, 1970. On November 19, 1970, TPAF approved Mrs. Racioppi’s application for service retirement, the retirement to become effective on December 1, 1970. Mrs. Racioppi died on December 29, 1970 at the age of 66.

Plaintiff argues that he is entitled to death benefits by virtue of the provision in N. J. S. A. 18A:66-38 that:

If a member dies within 30 days after the date of retirement or the date of board approval, whichever is later, a death benefit shall be payable only if he is deemed to be an active member in accordance with this section * *,

contending that his mother was on leave of absence without pay when she retired and therefore was to be “deemed an active member” because the cited section also provides:

For iho purpose of this section, * s'' * a member of the retirement system shall be deemed to be an active member * * * (2) for a period of no more than 2 years while on official leave of absence without pay if satisfactory evidence is presented to the retirement system that such leave of absence without pay is due to the member’s personal illness * *' *.

When plaintiff’s application was first submitted to TPAF it was denied without a formal hearing. Plaintiff appealed and, in accordance with the applicable regulation, a hearing was held before the Hearing Officer of the Division of Pensions. Following the conclusion of the hearing — at which various stipulations were made by counsel and testimony was given by plaintiff, by the Secretary of the Newark Board of Education and by the Chief of Contributions in the Accounting Bureau of the Division of Pensions — the Hearing Officer filed a report.

In it, he reviewed the evidence offered, made findings of fact and concluded that Mrs. Racioppi was not to be deemed an “active member” since she was not on “official leave of absence without pay,” and hence that no death benefits were pa3^able.

The Board of Trustees concurred in the Hearing Officer’s findings, conclusions and recommendation and ruled:

that Mary Racioppi was not on an official leave of absence without pay at the time of her death and that therefore, no group life insurance benefits are payable.

On appeal, plaintiff argues that, contrary to TPAF’s findings, his mother was in fact “on official leave of absence” and should not be penalized for what he refers to as a “bureaucratic” mess. However, we conclude from our study of the record that the findings made by the administrative agency could reasonably have been reached on sufficient credible evidence present in the record, considering the proofs as a whole, and that therefore there is no warrant for our disturbing them. See Jackson v. Concord Company, 54 N. J. 113, 117-118 (1969).

The determination of the Board of Trustees of the Teachers’ Pension and Annuity Fund is affirmed. Ho costs on this appeal.


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

text:
    THE TOWNSHIP OF SPARTA, IN THE COUNTY OF SUSSEX, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. LAWRENCE SPILLANE, ROY CONIGIOONE, JOHN DECKER, ARTHUR E. WALTERS, AND MARSHALL JOHNSON, DEFENDANTS-APPELLANTS. TOWNSHIP OF MOUNT OLIVE, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, AND RICHARD I. MIDGETTE, GEORGE D. SWANSON, ANN L. MADDEN, WALTER LATA AND DANIEL F. LEAHY, BEING THE COMMITTEE OF THE PETITIONERS, AND THE TOWNSHIP CLERK, GRACE HILPERT, PLAINTIFFS-APPELLANTS, v. LAKELAND INDUSTRIAL PARK, INC., A NEW JERSEY CORPORATION, AND AMUSEMENT CORPORATION OF AMERICA, A DELAWARE CORPORATION, DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued September 11, 1973
    Decided October 25, 1973.

      Before Judges Carton, Seidman, and Goldmann.

      Mr. Gerald B. Hanifan argued the cause for appellants Spillane et al. (A-371-72).

      Mr. Frank L. Patti argued the cause for respondent Township of Sparta (A-371-72).

      Mr. Herbert A. Vogel argued the cause for appellants Township of Mount Olive and Grace Hilpert, Township Clerk (Messrs. Vogel, Chait & Wacks, attorneys) (A-1616-73).

      Mr. Richard B. Girdler argued the cause for appellants Midgette et al. (Messrs. Dunn and Infinito, attorneys; Messrs. Warren E. Dunn and Richard, B. Girdler, on the brief) (A—1616—72).

      Mr. Arnold M. Smith argued the cause for respondents Lakeland Industrial Park, Inc. et al. (A-1616-72).
   The opinion of the court was delivered by

Carton, P. J. A. D.

The issue to be resolved in these appeals is whether the referendum procedure provided for in the Eaulkner Act applies to an amendment to the zoning ordinance of a municipality which has adopted the provisions of that act. The Township of Sparta and Township of Mount Olive eases involve this identical issue. Consequently they will be considered together, although they have not been formally consolidated.

Sparta has operated since 1960 under the Council-Manager Plan B of the Faulkner Act, N. J. S. A. 40 :69A-99 et seq. On April 12, 1972 the township council adopted an amendment to its zoning ordinance authorizing a Planned Unit Development (P. U. D.) pursuant to N. J. S. A. 40 :55-55 to 67. The plans for the P. U. D. were originally proposed by a subsidiary of a large corporation owning about 2,000 acres in Sparta.

The amendatory ordinance was referred to and acted upon favorably by the planning board after extended public hearings. Thereafter defendants in the Sparta action filed a petition with the municipal clerk seeking a referendum pursuant to N. J. S. A. 40:69A-185. The petition was found sufficient by the township clerk to comply with N. J. S. A. 40:69A-187, whereupon Sparta Township sought a declaratory judgment to determine whether the referendum provisions of the Faulkner Act were applicable to amendments of a zoning ordinance. The trial judge granted the township’s motion for summary judgment, holding that such provisions were not applicable.

Mount Olive Township operated under the Mayor and Council Plan E of the Faulkner Act, N. J. S. A. 40:69A-68 to 73. On August 25, 1972 the township council, over strong opposition, adopted an ordinance amending the township zoning ordinance by establishing a new zone denominated C-R (Commercial-Recreational). Permissible uses in this zone included permanent year-round or seasonal amusement parks. Two of the defendants in the Mount Olive ease own about two-thirds of the land in the newly created C-R zone on which they intend to construct and operate a major amusement park. The lands in question are located near Interstate Route 80 and were originally zoned for industrial uses.

The amendment was approved by the mayor after its passage by the council. On September 18 the plaintiffs in the Mount Olive case filed a petition with the township clerk for a referendum on the amendatory ordinance. This petition was found to comply with the statutory requirement.

As in the Sparta action, a declaratory judgment was sought by the municipality as to the applicabilty of the referendum procedures to the ordinance. The trial judge ruled in this case, as did the trial judge in the Sparta litigation, that the referendum procedure was not applicable.

The issue raised here presents a question not directly decided before in 3STew Jersey. The Faulkner Act, in pertinent part, provides:

The voters shall also have the power of referendum which is the power to approve or reject at the polls any ordinance submitted by the council to the voters or any ordinance passed by the council, against which a referendum petition has been filed as herein provided. No ordinance passed by the municipal council, except when otherwise required by general law or permitted by the provisions of section 17-32(b) of this act, shall take effect before twenty days from the time of its final passage and its approval by the mayor where such approval is required. * * *[N. J. S. A. 40 :69A-185]

A companion section of the statute (N. J. S. A. 40 :69A-184) provides a slightly different procedure for expressing public participation in municipal government through the initiative process:

The voters of any municipality may propose any ordinance and may adopt or reject the . ame at the polls, such power being known as the initiative. * * *

The Faulkner Act was adopted in order to encourage public participation in municipal affairs in the face of normal apathy and lethargy in such matters. The act gave municipalities the option of choosing one form or another of local government best suited to its needs. It was a legislative demonstration of the democratic ideal of giving the people the right of choosing the form of government they preferred and the opportunity to exercise the powers under that form to the furthest limits. Some 76 of the 567 municipalities of this State have adopted one form or another of the forms of government authorized under the Faulkner Act.

The initiative and referendum processes authorized by the act comprise two useful instruments of plebiscite power and provide a means of arousing public interest. Ordinary rules of construction would, of course, dictate that such provisions should be liberally construed. See 5 McQuillin, Municipal Corporations, § 16.48 at 199—200 (1969), where the author advocates that these procedures should be respected and given wide use if possible. It should be noted, however, that he adds a caveat that any grant of the power of initiative and referendum and its exercise are subject to and must be construed with governing constitutional and statutory provisions. 5 McQuillin, supra, at § 16.50. See also Newark v. Department of Civil Service, 68 N. J. Super. 416, 425 (App. Div. 1961); Cuprowski v. Jersey City, 101 N. J. Super. 15, 27 (Law. Div. 1968), aff’d 103 N. J. Super. 217 (App. Div. 1968).

Undeniably, zoning issues often are of great public interest and some, as in the present case, may concern the entire population of the municipality involved. In both the cases before us it has been argued forcefully that the proposed ordinances change or alter the complexion of the municipalities. Thus, the ultimate question is whether major decisions should be made by the planning boards and governing bodies, with only voiced public approval or dissent as prescribed in the Zoning Act, or whether they should be open to a final decision by the vote of the entire population. This issue pits the philosophy of comprehensive zoning planned by a panel of experts and adopted by elected and appointed officials, against the philosophy of a wider public participation and choice in municipal affairs.

Other states faced with similar problems of referendum provisions have arrived at conflicting determinations. See generally, 42 Am. Jur. 2d, Initiative and Referendum, § 9 at 657; Annotation, “Referendum — Nature of Ordinance,” 122 A. L. R. 769 (1939). However, the decisions of other states furnish little aid here since the laws of the states involved differ in substantial respects from the New Jersey statutes.

Our consideration of the applicability of the referendum provided for in the Eaulkner Act to the zoning procedure logically should begin with an examination of the treatment accorded by our courts to the companion process of the initiative. Smith v. Livingston Tp., 106 N. J. Super. 444 (Ch. Div. 1969), aff’d o. b. 54 N. J. 525 (1969), held that the initiative was not applicable to amendatory zoning ordinances. In so holding, Judge Mintz found that the zoning statutes represented an exclusive grant of power by the Legislature to municipalities generally and was not impliedly superseded by the later adopted Faulkner Act. He noted that the Zoning Act is specific in detailing the manner in which zoning ordinances may be amended; that steps in the zoning procedure include consideration by the municipal planning board, the opportunity of property owners to object, and approval by the governing body. He also pointed out that in the event of objection by the property owners involved, a vote of two-thirds of the governing body is required to effect a change in the zoning ordinance (N. J. S. A. 40 :55-34 to 35). He likewise observed that the initiative and referendum provisions in the Faulkner Act contain no specific reference to zoning. He concluded that if the initiative procedure were allowed to be applied to zoning matters, it would “disregard the valuable expertise of the planning board, and permit the electorate to defeat the beneficent purpose of the comprehensive zoning ordinance.” 106 N. J. Super. at 457.

Appellants argue that a. referendum is sufficiently dissimilar to an initiative as to justify treating it differently. ■They stress the fact that a referendum merely adds an additional stage which follows the governing body’s approval and does not, as in the case of the initiative, provide a substitute for legislative action by the governing body. Consequently, they reason, a proposed zoning change should no more than any other legislative act be immune from further public examination. They point also to the fact that the planning board would not be altogether by-passed as in the case of initiative since a referendum begun by a petitioner would not occur until after the adoption of the zoning amendment and such adoption could not occur until the planning board had reviewed the amendment and made its recommendation. N. J. S. A. 40:55-35 and N. J. S. A. 40:69A-185.

These arguments have some cogency. However, we conclude that essentially the same considerations which bar application of the initiative process to zoning ordinance amendments apply in the case of the referendum.

Zoning is intended to be accomplished in accordance with a comprehensive plan and should reflect both present and prospective needs of the community. See Rudderow v. Mt. Laurel Tp., 121 N. J. Super. 409 (App. Div. 1972); Bellings v. Denville Tp., 96 N. J. Super. 351 (App. Div. 1967). Among other things, the social, economic and physical characteristics of the community should be considered. The achievement of these goals might well be jeopardized by piecemeal attacks on the zoning ordinances if referenda were permissible for review of any amendment. Sporadic attacks on a municipality’s comprehensive plan would tend to fragment zoning without any overriding concept. That concept should not be discarded because planning boards and governing bodies may not always have acted in the best interest of the public and may not, in every case, have demonstrated the expertise which they might be expected to develop.

The spirit and thrust of Smith v. Livingston Tp., supra, requires treatment of both processes in the same fashion in their relation to the zoning procedure. Such considerations stem from the exclusivity and uniqueness of the Zoning Act itself (and the related Planning Act) and the Legislature’s evident intention of providing uniformity of procedure for all municipalities in the State in zoning matters.

Thus, the Legislature has authorized governing bodies of municipalities to establish administrative agencies to assist them in the performance of functions in this area and has laid down very specific and detailed procedure to be followed by all governmental bodies in carrying out such functions. Such comprehensive and precise treatment demonstrates the special concern of the Legislature in this important area of municipal regulation.

Moreover, certain aspects of the zoning statute seem inherently incompatible with the referendum process. N. J. S. A. 40 :55-35 provides three avenues by which an amendment to a zoning ordinance may be effected; first, following approval by the planning board the governing body passes the amended ordinance; second, upon rejection by the planning board the amended ordinance may be approved by two-thirds of the governing body; third, should at least 20% of the landowners directly or contiguously affected by the proposed amendment object, the governing body must pass the amended ordinance by a two-thirds vote. A zoning ordinance amendment does not become operative unless the planning board and governing body have acted. See Abel v. Elizabeth Bd. of Works, 63 N. J. Super. 500 (App. Div. 1960). Whether the referendum stems from a submission of an ordinance by the governing body directly to the voters or by a referendum petition filed by the necessary number of voters, the so-called veto power of the planning board or protesting landowners would be rendered meaningless. A simple majority of the voters would be all that was necessary to approve or disapprove the ordinance.

We are not satisfied that the publicity which might accompany the referendum campaign and the exposure and discussion of the issues generated thereby justify disregarding these procedural requirements. Cf. Meridian Development Co. v. Edison Tp., 91 N. J. Super. 310 (Law Div. 1966). See Lionshead Lake, Inc. v. Wayne Tp., 10 N. J. 165, 179 (1952); Ward v. Scott, 16 N. J. 16, 23 (1954). In this connection we note that the zoning statute requires public notice of proposed zoning changes (N. J. S. A. 40:55-34). Moreover, from common experience we know that zoning amendments of a controversial nature, especially those which may greatly affect the entire population of the communit3r, are often widely discussed and vigorously debated at the public hearings prior to adoption.

In arriving at this conclusion, we find it unnecessary to decide whether the Zoning Act is a “general law” as that term is used in N. J. S. A. 40 :69A-181:

(a) Except as may otherwise he provided in this act, all ordinances shall be adopted and published in the manner required by general law * s- *. [Emphasis added]

In this connection we note that the Zoning Act provides a somewhat different procedure for the publication of zoning amendments (N. J. S. A. 40 :55-34) than is provided for passage of ordinances generally (N. J. S. A. 40:49-2). See Stirling v. Plainfield, 134 N. J. L. 485 (Sup. Ct. 1946), rev’d on other grounds 136 N. J. L. 38 (E. & A. 1947).

Both judgments appealed from are affirmed.


text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. BRUCE J. NUGENT AND ALLAN C. MORRILL, DEFENDANTS-APPELLANTS.
    Superior Court of New Jersey Appellate Division
    Argued November 13, 1973
    Decided November 26, 1973.

      Before Judges Carton, Seidman and Goldmann.

      Mr. Emerson L. Darnell argued the cause for appellants (Messrs. Darnell and Scott, attorneys).

      Mr. Howard Drucks, Deputy Attorney General, argued the cause for respondent (Mr. George F. Kugler, Jr., Attorney General of New Jersey, attorney).
   Per Curiam.

Defendants appeal their conviction for possession of narcotic drugs (marijuana and hashish) after a non-jury trial. They had been indicted on December 21, 1970 for violating N. J. S. A. 24 :18-4, part of the then Uniform Narcotic Drug Law. That act was repealed on October 19, 1970 by the Controlled Dangerous Substances Act, N. J. S. A. 24 :21-1 et seq., effective January 17, 1971. The trial and conviction came late in 1972.

Defendants unsuccessfully moved before trial to suppress the evidence on the ground of unreasonable search and seizure. They also moved for dismissal of the indictment, challenging the constitutionality of N. J. S. A. 24 :18-4. This motion, too, was denied, and we denied leave to appeal from that ruling.

Following the trial, each defendant was sentenced to three months in the county jail, sentence being suspended, and ordered to pay a $250 fine. They filed timely notice of appeal.

The brief presented on defendants’ behalf and which projects the four points about to be discussed is largely devoted to the pharmacological, physiological and sociological aspects of marijuana. However commendable, the presentation does not convince us that a reversal is in order.

Defendants first claim that the Uniform Narcotic Drug Law under which they were prosecuted violates N. J. Const. (1947), Art. IV, § VII, par. 4, which provides, in part, that

To avoid improper influences which may result from intermixing in one and the same act such things as have no proper relation to each other, every law shall embrace but one object, and that shall be expressed in the title. * * *

They characterize the title as misleading or deceptive, confusing the public concerning “the true relationship between marijuana and narcotic drugs.” They assert that a constitutionally proscribed mixing occurred in that marijuana was classed as a narcotic. Their contention is that their motion to dismiss the indictment should therefore have been granted and that their convictions must be set aside as constitutionally improper.

The State is correct when it states that in order for a law to conform to the requirement that its title so express its object as not to be misleading, it is of paramount importance to determine whether the legislators and the public at large were given notice of the subject area with which the legislation deals. See Bucino v. Malone, 12 N. J. 330, 343 (1953). Mere generality or comprehensiveness of a title will not render a statute ineffectual. Courts will give liberal treatment to a title so as to validate the law to which it appertains, whenever such course is reasonably practical. Public Service Electric and Gas Co. v. Camden, 118 N. J. L. 245, 250-251 (Sup. Ct. 1937).

The title of the Uniform Drug Law reads, “An act defining and relating to narcotic drugs, making uniform the law with relation thereto, and providing penalties for violations thereof.” Marijuana is included as a narcotic drug in the definition section of the act, N. J. S. A. 24 :18-2. What defendants argue is that marijuana is not properly classifiable as a narcotic, and this leads them into an exposition of the pharmacology of the matter. The question, however, is strictly a legal one. The 1933 Legislature, following the lead of the commissioners on uniform state laws, believed that marijuana was properly includable among narcotic substances.

A second argument advanced by defendants is that the former act under which they were convicted violates their right to equal protection of the law. It discriminates, they say, against those who possess marijuana, for there are substances far more harmful, or equally harmful, that are not prosecuted — e. g., alcohol, mescaline and peyote.

The simple answer is that a legislature has broad classification powers, Ferguson v. Skrupa, 372 U. S. 726, 83 S. Ct. 1028, 10 L. Ed. 2d 93 (1963), which in due course may legitimately affect some groups of citizens differently than others, McGowan v. Maryland, 366 U. S. 420, 81 S. Ct. 1101, 6 L. Ed. 2d 393 (1961). As the State points out, the fact that a problem at which legislation aims might have been dealt with by a statute that would have included other persons or classes does not violate the equal protection clause. The reason is that "a State may ‘direct its law against the evil as it actually exists without covering the whole field of possible abuses, and it may do so none the less that the forbidden act does not differ in kind from those that are allowed/ ” Hughes v. Superior Court, 339 U. S. 460, 468, 70 S. Ct. 718, 723, 94 L. Ed. 985 (1950). In short, a legislature is not obliged to deal with all matters at one time; there is nothing that compels it to deal with the entire field, in all its ramifications and with all its refinements and possible exceptions. Dandridge v. Williams, 397 U. S. 471, 486, 90 S. Ct. 1153, 25 L. Ed. 2d 491 (1970). And see State v. Smith, 58 N. J. 202, 207 (1971); State v. Young, 57 N. J. 240, 249 (1970), cert. den. 402 U. S. 929, 91 S. Ct. 1527, 28 L. Ed. 2d 863 (1971). Moreover, a court should not set aside a law on the ground that it is allegedly of discriminatory nature, where any state of facts can reasonably be conceived to justify it. McGowan v. Maryland, above.

The courts in Commonwealth v. Leis, 355 Mass. 189, 243 N. E. 2d 898 (Sup. Jud. Ct. 1969), and State v. Kantner, 53 Haw. 327, 493 P. 2d 306 (1972), cert. den. 409 U. S. 948, 93 S. Ct. 287, 34 L. Ed. 2d 218 (1972), dealt with precisely the argument defendants now advance, and in each case the statute was held constitutional.

Defendants also challenge the classification in the Uniform Narcotic Drug Law by pointing to the fact that marijuana was reclassified by the Controlled Dangerous Substances Act. Keclassifieation is not conclusive proof of an irrational prior classification. The fact that the Legislature considered marijuana to be more appropriately classed with the substances enumerated in the later act is not inapposite to its prior classification also having had a rational basis.

The third argument advanced by defendants is that they have a fundamental right, protected by the First, Fourth, Ninth and Fourteenth Amendments to the United States Constitution, to possess marijuana, free of any governmental intrusion. They maintain that since N. J. S. A. 24:18-4 prohibits private possession of marijuana by adults for their private use, it is unconstitutional because it intrudes into purely private conduct. They rely heavily on Stanley v. Georgia, 394 U. S. 557, 89 S. Ct. 1243, 22 L. Ed. 2d 542 (1969), but that case dealt with a clear First Amendment right — a person’s right to possess and look at obscene material in the privacy of his own home. If defendants are correct in their contention, what of a situation involving private possession and use of heroin, a drug which they readily admit is a narcotic? We are not here concerned with what can beyond any doubt be considered as a fundamental right, secured by the Constitution. The cases defendants would rely on deal with just such rights.

The standard to be applied in determining whether a fundamental constitutional right exists is that the reviewing court must look to “the Traditions and [collective] conscience of our people’ to determine whether a principle is so rooted [there] as to be ranked as fundamental.’ ” Griswold v. Connecticut, 381 U. S. 479, 493, 85 S. Ct. 1678, 1686, 14 L. Ed. 2d 510 (1965). The right to possess marijuana or hashish hardly qualifies as a fundamental right.

As a last point, defendants maintain that the trial judge erred in denying their pretrial motion to suppress. We find nothing to this claim. The state trooper had the right to stop the car in which defendants were riding when he observed that there was a hanging. license plate and broken light lens. The fact that they were subsequently found not guilty of a motor vehicle violation does not impugn the propriety of the initial stop, which eventually led to discovery of the drugs in question. See State v. Griffin, 84 N. J. Super. 508 (App. Div. 1964).

The trial judge had the opportunity of hearing and seeing the witnesses and to have a feel of the case which we, as a reviewing court, do not enjoy. We find no abuse of discretion in Ms acceptance of the trooper’s testimony and in denying the suppress motion.

The State has not cross-appealed as to the validity of the sentence. Its time to do so has expired; consequently, we do not pass upon that question.

The judgments of conviction are affirmed.


author: Seidman, J. A. D.

text:
    LEIMPETER’S DISPOSAL SERVICE, INC., A NEW JERSEY CORPORATION; AND JOHN F. LEIMPETER, INDIVIDUALLY, PLAINTIFFS-APPELLANTS, v. MAYOR AND COUNCIL OF THE BOROUGH OF CARTERET; AND THE BOROUGH OF CARTERET, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued October 2, 1973
    Decided November 26, 1973.

      Before Judges Carton, Seidman and Goldmann.

      Mr. Peter J. Selesky argued the cause for appellants (Messrs. Selesky, Kolsky & Epstein, attorneys).

      Mr. Joseph P. Schiappa argued the cause for respondents (Mr. Edward J. Dolan, attorneys; Mr. Sam Weiss, of counsel).
   The opinion of the court was delivered by

Seidman, J. A. D.

Plaintiff Leimpeter’s Disposal Service, Inc., a licensed solid waste collector whose place of business is located in the Borough of Carteret, and whose principal stockholder is plaintiff John E. Leimpeter (collectively referred to herein as “plaintiff”), filed a complaint in lieu of prerogative writs challenging the validity of an ordinance adopted by the governing body of the Borough of Carteret prohibiting private scavengers from dumping or disposing of industrial or commercial refuse on the borough’s waste disposal area. In addition, damages were sought because of plaintiff’s inability to use the waste disposal area.

Defendant borough counterclaimed for damage to the area allegedly caused by plaintiff and also to recover moneys claimed to be owed by plaintiff for the use of the area between 1969 and 1971.

After a hearing the trial judge upheld the ordinance, dismissed plaintiffs’ claim for damages, and awarded the borough $6340 for plaintiffs’ use of the disposal area. 121 N. J. Super. 18 (Law Div. 1972). Plaintiff appeals, contending that (1) the ordinance regulating scavengers does not bear a substantial relation to the public health, safety and welfare; (2) it has standing to raise the constitutional rights of its customers “who are fellow taxpayers in Carteret,” and (3) defendant failed to sustain its burden of proof with respect to the counterclaim.

The last point urged is without merit. Prior to the adoption of the ordinance under review, the municipality issued permits for the use of its disposal area and charged fees for the depositing of refuse and other materials in accordance with an established schedule. Defendant claimed, from its records, that plaintiff owed $6340 for the use of the facility between July 1969 and September 1971. Plaintiff did not deny receiving bills in that amount, but disputed their accuracy. The trial judge found for defendant on the counterclaim, noting that plaintiff had presented nothing to support its contentions. Considering the proofs as a whole, we are satisfied that the result could reasonably have been reached on sufficient credible evidence present in the record and, therefore, should not be disturbed. State v. Johnson, 42 N. J. 146, 162 (1964); Close v. Kordulak Bros., 44 N. J. 589, 598-599 (1965).

Plaintiff apparently does not question the dismissal of its claim for damages. In any event, as the trial judge correctly pointed out, a cause of action against a municipality cannot be grounded on the alleged invalidity of an official legislative determination. Visidor Corp. v. Cliffside Park, 48 N. J. 214, 222 (1966); Veling v. Ramsey, 94 N. J. Super. 459, 461 (App. Div. 1967).

We turn now to the ordinance in question. The proofs disclose that in 1969 the Borough of Carteret created a municipal disposal area. In September 1971 the “Garbage and Trash Disposal” chapter of the municipality’s Revised General Ordinances was amended to prohibit, as had an earlier ordinance, the depositing of refuse not originating in the borough, and by the addition of the following section:

No person or party engaged in the act, business or practice of a private scavenger, or transporter and disposer of garbage, refuse, trash or wastes, of any nature whatsoever having its origin in any commercial, mercantile, business or industrial operation or establishment situated in the Borough of Carteret, shall dump or dispose of same upon any Borough of Carteret owned or operated municipal ground or refuse disposal area or landfill site.

Plaintiff claims that the above amendment is unconstitutional. It argues, in substance, that (1) it regulates business and singles out only those engaged in the lawful pursuit of solid waste removal; (2) government may not, in the guise of protecting the public, arbitrarily interfere with or impose unreasonable restrictions upon business; (3) there is no rational basis for excluding licensed solid waste collectors, and (4) the classification of private scavengers does not bear a reasonable relation to the general object of the legislation and constitutes arbitrary discrimination.

The argument that the ordinance regulates business is unsound. It does not do so at all. What it does, in addition to excluding refuse and waste from outside the borough, is to prohibit private scavengers from using the municipal disposal area for the dumping of solid waste from commercial, business and industrial operations located in the borough. The collection and dumping of refuse from residences in the borough is not affected.

There is no doubt that municipalities are empowered to legislate on the removal and disposal of waste in order to promote the public health, Dover Tp. v. Witt, 7 N. J. Super. 259, 261 (App. Div. 1950), and ordinances which regulate the disposition of garbage are entitled to the presumption of validity generally attending municipal enactments. Marangi Bros. v. Bd. of Com’rs, Ridgewood, 33 N. J. Super. 294, 300 (App. Div. 1954). Those attacking such ordinances have the burden of establishing their unreasonableness. Gilman v. Newark, 73 N. J. Super. 562, 582 (Law Div. 1962).

Since ordinances such as the one involved herein will be sustained whenever they bear a reasonable relation to the safeguarding of public health, Marangi Bros. v. Bd. of Com’rs, Ridgewood, supra, the issue to be resolved is whether, on the facts here present, the ordinance in question is a reasonable exercise of municipal police power.

In his opinion the trial judge referred to the testimony of municipal officials that the amendment was adopted to protect the public health by preventing the depositing of waste of non-Carteret origin, and that under the former ordinance the borough had found it impossible to detect the origin of solid waste, especially that collected by private scavengers who have customers in various municipalities. He noted, further, that when the disposal area was ordered closed in May 1971 by the State Department of Environmental Protection for violations of the State Sanitary Code, remedial steps were taken by the borough.

To remove the disposal area from the jurisdiction of the Public Utilities Commission, the borough ceased to operate the facility as a proprietary enterprise; large sums were spent to upgrade it and its use was denied to private solid waste collectors, thus, according to the trial judge, “significantly diminish [ing] the quantity of waste entering the disposal area, thereby making it less burdensome to maintain the site in a sanitary fashion.”

The trial judge reasoned that since the borough had a valid interest in promoting good health by excluding non-Carteret waste, the barring of private scavengers was not an unreasonable method of effecting that end.

Unquestionably, the municipal disposal area had been in a deplorable condition, hazardous to the public health and welfare. The cause, however, seems to have been the borough’s failure to supervise effectively those using it. The fact that the amendment “significantly diminished” the amount of waste entering the disposal area, thus making it easier to maintain it in a sanitary fashion is, at best, a tenuous point. Solid waste had been deposited not only by private scavengers but also by others, including the municipality’s own sanitation department. The proofs do not support the conclusion that private scavengers were chiefly responsible for the conditions which had prevailed, and their exclusion cannot be justified on that basis.

In any event, the primary motive for the legislative action taken by the municipality, as disclosed by the record, was a genuine concern on its part that the facility would soon be taxed beyond its capacity if the use thereof continued in an unrestricted fashion. It was deemed necessary to limit the disposal area to solid waste originating in the borough. As a consequence, the depositing of waste and refuse from outside the borough was banned.

The propriety of such action is not disputed. A municipality may legally bar the dumping of foreign waste and refuse. Public Health Council v. Franklin Tp. Bd. of Health, 108 N. J. Super. 239, 241 (App. Div. 1970).

An attempt is made to justify the amendatory ordinance under review by relating it to the legitimate policy of excluding solid waste emanating from other municipalities. The argument advanced is that since it is difficult, if not impossible, to detect the origin of waste hauled by private scavengers who also do business elsewhere, placing them in a separate category for the purposes of the ordinance is a reasonable and valid classification and excluding them entirely (except for refuse from borough residences) is a proper exercise of police power in the circumstances.

We do not find the explanation persuasive insofar as it applies to a private scavenger like plaintiff, whose place of business is in the borough. We recognize the possibility that enforcement of the ordinance might be difficult in the case of private scavengers based elsewhere, since, as noted before, the waste being transported could conceivably originate at least in part in another municipality and then be deposited in the disposal area without detection. However, we need not determine at this time what the result should be with respect to those solid waste collectors.

As for Carteret-based scavengers, even though their activities may extend to other municipalities, the borough has not convincingly demonstrated its inability to control them through appropriate means. Moreover, there is nothing in the record to suggest that violations of the ordinance are reasonably to be anticipated. On balance, therefore, viewing the facts and circumstances in their totality, we do not think the hypothetical possibility that some outside refuse might possibly be brought into the municipality is sufficient justification for preventing plaintiff from engaging in the pursuit of an otherwise lawful business.

Additionally, in considering the reasonableness of the ordinance we should not ignore its effect upon those local businesses and industries that have relied upon plaintiff and other private scavengers for the disposal of their solid waste. As taxpayers they ought to have the same access to the waste disposal area as anyone else in the borough.

Although their refuse is not excluded from the disposal area, it cannot be hauled there by private scavengers. Thus, those engaged in business or industry are faced with the choice of either having to transport the solid waste to the disposal area themselves or having it carried by private scavengers to dumps outside the borough at presumably greater expense.

On the facts here present, we perceive no reasonable basis for applying the amendatory ordinance to private scavengers like plaintiff whose businesses are located in Carteret. It is our view, as to them, that the ordinance in question is unreasonable and .arbitrary and cannot be enforced.

So much of the judgment which dismisses the complaint is reversed and the case is remanded to the Law Division for the entry of judgment in conformance with this opinion. The remainder of the judgment is affirmed.

       The judgment tlxat was entered is for $6000, plus interest and costs. The difference in the amounts is not explained.


text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. ROBERT R. BLASI AND ROBERT R. BLASI T/A GOLCONDA CORPORATION, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Submitted February 27, 1973
    Decided March 8, 1973.
    Before Judges Kolovsky, Matthews and Crahay.

      Mr. Howard C. Trueger, attorney for appellant.

      Mr. George F. Kugler, Jr., Attorney General of New Jersey, attorney for respondent. (Mr. Steven F. Pollan, Deputy Attorney General, of counsel.)
   Per Curiam.

The defendant was convicted by a jury of two counts of overdrawing checking accounts in violation of N. J. S. 2A :111-15. The first count involved a check in the amount of $2,050 issued by the defendant on March 23, 1970 payable to a paving company. It was uncontradicted that the check was delivered in partial payment of an outstanding debt owed by a contracting company in which the defendant was a one-half owner and secretary-treasurer. The check was dishonored for insufficient funds.

On this record the conviction on the first count of the indictment may not stand.

While the record clearly supports the finding that the defendant was aware that he had insufficient funds in the bank to cover the check and that he deliberately issued it, it is equally patent that the cheek represented payment against an antecedent debt. No facts were presented suggesting that Blasi obtained a present benefit in exchange for the check as for example, an extension of credit or relief from threatened legal action.

An essential element of the offense is that the person issuing the check do so “. . . with intent to defraud . . .” N. J. S. 2A :111-15.

In State v. Turetsky, 78 N. J. Super. 203 (App. Div. 1963) we find at 212:

. . . So, too, if the jury believed that this $1,000 check was delivered, either postdated or on the date appearing on its face, solely as payment on account of a larger past due obligation and no other consideration passed from the payee to the makers as a result of the delivery of the check, then the element of intent to defraud, essential to the proof of the statutory offense, would have been lacking and the defendants would have been entitled to an acquittal. State v. Riccardo, 32 N. J. Super. 89, 94-95 (App. Div. 1954). As we said in Riccardo:
“. . . while the mere fact that a check is given for a past consideration does not ipso facto negative the element of fraud, it is a controlling circumstance when no other element of fraud exists.”
A check given for a past consideration -might still be tainted with an intent to defraud, as where the maker of the check obtains an extension of credit or relief from threatened legal action. State v. Riccardo, supra at p. 94.

The check involved in the second count was issued by the defendant to the owner of a liquor store in the amount of $500. It bore.the notation on its face that it was in payment on account of a check for $2,000 given to the same paving company.

The record reflects a clear factual dispute as to the purpose of this check. The defendant testified that it was given to the liquor store owner as an expression of good faith since the liquor store owner had cashed the prior cheek which had been dishonored. The payee denied this and specifically testified that upon receipt of the $500 check he cashed it giving the defendant approximately $400 and a quantity of liquor. The credibility issue between defendant and the payee was for the jury’s consideration. State v. Forcella, 35 N. J. 168 (1961), cert. den. 369 U. S. 866, 82 S. Ct. 1035, 8 L. Ed. 2d 86 (1961).

Thus, as to the second count there was proof of new consideration for the check from which the jury could fairly find that the defendant knowingly issued it with intent to defraud.

The other points raised by the defendant are without merit.

The judgment of conviction on the first count of the indictment is reversed. The judgment on the second count is affirmed.


author: Doan, J. S. C.

text:
    TOWNSHIP OF WAYNE IN THE COUNTY OF PASSAIC, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY; AND NEWTON E. MILLER, AS MAYOR OF THE TOWNSHIP OF WAYNE, WALTER JASINSKI, JAMES MINGO, ESTELLE PERRY, JOSEPH VADALA, THOMAS ELM, LEONARD PINE, DAVID WAKS, AND HARRY RUDIGER AS MEMBERS OF THE GOVERNING BODY AND INDIVIDUALLY, PLAINTIFFS, v. THE COUNTY OF PASSAIC, A BODY POLITIC OF THE STATE OF NEW JERSEY, AND BOARD OF CHOSEN FREEHOLDERS OF THE COUNTY OF PASSAIC, BLOOMINGDALE BOROUGH, CITY OF CLIFTON, BOROUGH OF HALEDON, BOROUGH OF HAWTHORNE, BOROUGH OF POMPTON LAKES, BOROUGH OF PROSPECT PARK, BOROUGH OF RINGWOOD, BOROUGH OF TOTOWA, BOROUGH OF WANAQUE, BOROUGH OF WEST MILFORD, AND BOROUGH OF LITTLE FALLS, DEPENDANT. JOHN MAZZACCA, JR., BRIAN BERKIN, BERNARD ROGOFF, ROBERT ALTSHULER, THOMAS ELM, JR., ESTELLE PERRY, DAVID WAKS, ANN GERHOLD, ANDREW MILITELLO, BERNARD ROSEN, ALEX BROWN, PETER GARINO AND WALTER HOFFMAN, INDIVIDUALLY AND AS TAXPAYERS IN THE TOWNSHIP OF WAYNE, COUNTY OF PASSAIC AND AS REPRESENTATIVES OF A CLASS OF INDIVIDUALS WHO UTILIZE RIVERVIEW DRIVE AND ARE AFFECTED BY SAID ROUTE, PLAINTIFFS, v. PASSAIC COUNTY BOARD OF CHOSEN FREEHOLDERS, EDWARD O’BYRNE, DIRECTOR, JOSEPH F. D’ARCO, CHARLES S. DORMAN, DONALD A. FARINELLA, EDWARD GOLA, SIDNEY H. REISS, AND GEORGE J. SOKALSKI, INDIVIDUALLY AND AS A GOVERNMENTAL UNIT, DEFENDANTS.
    Superior Court of Ne.w Jersey Law Division
    Decided November 21, 1973.

      Mr. Robert S. Moraff for plaintiffs.

      Mr. Herman Osofsky, Assistant County Counsel, for defendants County of Passaic and the Board of Chosen Freeholders (Mr. Herman W. Steinberg, County Counsel, attorney).

      Mr. John F. Sullivan for defendant City of Clifton (Mr. Arthur J. Sullivan, Jr., attorney).

      Mr. Lawrence T. Isenberg for defendant Borough of Pompton Lakes.

      Mr. Uldric L. Fiore for defendant Borough of Ringwood.
   Doan, J. S. C.

These consolidated matters are before the court on cross-motions for summary judgment. At the hearing all parties agreed that the motions for summary judgment were to encompass all issues in controversy so that a full and final adjudication could be made. B. 4:46.

On October 5, 1972 the Township of Wayne filed a complaint in lieu of prerogative writs and for a declaratory judgment. This action challenges a policy of the Passaic County Board of Chosen Freeholders which requires that,'as a condition precedent to any county improvement of a county highway, a municipality acquire and convey to the county at no cost all necessary easements or rights-of-way for that portion of a proposed road improvement within the boundaries of the municipality. In essence, the complaint seeks the following relief: (a) to declare this county policy arbitrary, capricious, and unlawful; (b) order the county to cease and desist from enforcing its policy; (c) order the county to institute appropriate proceedings to acquire the necessary property interests to improve Riverview Drive, and (d) order the county to reimburse the township for the administrative expenses and the acquisition costs for easements already acquired by the municipality along Riverview Drive and Ratzer Road.

The answers of the county and other municipalities, taken together, essentially denied the allegations of the complaint and asserted, as affirmative defenses, that road improvements are matters for the discretion of the freeholder board; that there is no arbitrariness or capriciousness involved, and that the municipal acquisition and conveyance of the easements constitute gifts to the county. The Borough of Totnwa cross-claimed, substantially asserting the same claim as plaintiff as to the illegality of the county policy.

In the second case, plaintiffs, taxpayers of the Township of Wayne, individually and as representatives of a class, seek an order to compel the county to widen Riverview Drive, initiate necessary condemnation, declare . the county policy unlawful, and reimburse the municipality for previously acquired easements. These two eases were ordered consolidated on February 23, 1973.

On August I, 1973 the Board of Chosen Freeholders adopted a resolution authorizing county acquisition of the necessary rights-of-way for the improvement of Riverview Drive in the Borough of Totowa, either by purchase or by condemnation. This resolution specifically recites that the authorized county acquisition is “a special exception for Riverview Drive in the Borough of Totowa to [the county’s] previously adhered-to, long-standing policy with respect to municipal cooperation for acquisition of easements for County road widening projects.”

Insofar as the county policy itself is concerned, this controversy is ripe for summary judgment. There is no factual dispute as to the existence or dimensions of that policy; the pleadings, affidavits, deposition, and the resolution of the freeholder board show clearly that the county has required municipal acquisition and conveyance of needed easements before any road improvement project is undertaken by it. The issues for determination are matters of law, not matters of fact. R. 4 :46-2; Judson v. Peoples Bank & Trust Co. of Westfield, 17 N. J. 67 (1954); Felbrant v. Able, 80 N. J. Super. 587, 590 (App. Div., 1963). However, this controversy, insofar as it pertains to Riverview Drive in the Borough of Totowa, has been mooted by the recent resolution of the board and need not be considered further.

I. County Road Improvements

Defendants argue that the county policy is a logical extension of the county’s discretionary authority over road improvements. The New Jersey Constitution of 1947 does provide for implied powers following a grant of express authority :

The powers of counties and such municipal corporations shall include not only those granted in express terms but also those of necessary or fair implication, or incident to the powers expressly conferred, or essential thereto, and not inconsistent with * * * law. [Art. IV, § VII, f 11; emphasis added]

However, defendants’ expansive view of the powers implied in the county’s discretionary authority over road improvements is manifestly inconsistent with the plain terms of the statute which limits the county’s acquisition methods to the three enumerated activities. Uor does defendants’ expansive view find support in Inganamort v. Fort Lee, 62 N. J. 521 (1973), since in this case there is a specific statute, not the general police power, that empowers and delimits the authority of the county. More of that statute later.

The County Home Rule Act of 1918 (L. 1918, c. 185) provides for the creation and general functioning of a county governing board. N. J. S. A. 27:16-1 (§ 1101 of the Act) authorizes a board to widen, improve, and maintain any road or highway under its control. Since this section expressly provides that a county board “shall have power” or “may” improve roads, and is part of a general authorization, this section is permissive rather than mandatory:

“May” is a permissive and not an imperative verb which is to be given its natural and ordinary meaning, barring a clear contextual indication of a different usage. The question is essentially one of legislative intent, to be gathered from the nature and object of the statute considered as a whole. * !i" * [Leeds v. Harrison, 9 N. J. 202, 213 (1952)]

Since the statute is permissive and not mandatory, the county board is invested with discretion in determining what road improvements will be undertaken) counties, like municipalities, “have a wide latitude of discretion with respect to public improvements.” Hoglund v. Summit, 28 N. J. 540, 552 (1959).

Since the county board exercises a discretionary authority, matters of public road improvements are generally beyond judicial cognizance:

The wisdom of making- public improvements is not a matter for judicial investigation, and the courts will not intervene in the proceedings to bring about a public improvement in the absence of fraud or patent illegality. [Paramus v. Bergen County, 25 N. J. 492, 496 (1958)]

Likewise, the manner of the exercise of such discretion is ordinarily beyond judicial review in a proceeding in lieu of prerogative writs:

So long as [a public body] operates within the orbit of its statutory authority, it is well established that the courts will not interfere with the maimer in which it exercises its power in the absence of bad faith, fraud, corruption, manifest oppression or palpable abuse of discretion. [Newark v. N. J. Turnpike Authority, 7 N. J. 377, 381-382 (1931)]

More specifically, mandamus is not available where discretion is exercised within the law:

The discretion beyond control by mandamus is that exercised under the law, and not contrary to law * i;-' * Where there is an omission to do what the law clearly and unmistakably directs as an absolute duty, mandamus is an appropriate remedy. [Reid Development Corp. v. Parsippany-Troy Hills Tp., 10 N. J. 229, 237 (1952)]

Accordingly, to the extent that the complaint of John Mazzacca ei als. seeks to compel improvement of Riverview Drive by order of the court, such relief is beyond the power of the court, absent a showing of fraud, illegality, or palpable abuse of discretion.

For the same reasons that the court cannot compel a county improvement project, the court cannot compel acquisition of easements by the county. N. J. S A. 27:16-2 to 4, and 42 (§§ 1102-1105 of the 1918 Act) prescribe the procedure for county authorization for a road improvement and the acquisition of necessary property interests. This procedure involves the adoption and filing of a resolution and maps, identification of interests to be acquired, publication of intention, a hearing, and adoption of a final plan. The present record does not show that the freeholders board has commenced any such proceeding as to Eiverview Drive in the Township of Wayne, or as to Eatzer Eoad. Thus, the board has not, as yet, decided to make any improvement to these two county roads. Since the board must decide to make a road improvement before acquiring needed easements, and since a court cannot compel a discretionary decision to make a road improvement, then a fortiori the court cannot compel acquisition of easements by the county before adoption of an improvement plan. To compel acquisition of easements by the county, as sought in the township’s complaint, would be tantamount to compelling a road improvement by order of the court rather than through the legislatively-prescribed procedure. Likewise, since a court can compel neither a road improvement nor acquisition of easements, then it cannot compel reimbursement by the county to the township for easements already acquired by the township; to compel such reimbursement would be tantamount to compelling acquisition of easements prior to adoption of an improvement plan.

Consequently, to the extent that both complaints seek an order of the court to compel the county to acquire necessary easements and to reimburse the township for easements already acquired by it,' they must be dismissed.

II. Declaratory Judgment as to County Policy

Although the broad question of the advisability or necessity of road improvement lies within the discretion of the freeholders board and bej^ond judicial interference when properly exercised, the method of acquisition of needed easements presents a different situation. The issue of whether a county can require, without compensation, municipal acquisition and conveyance of needed easements before county improvement of a county road, is a question of first impression in this State. At the hearing, counsel for the defendant county stated that at least one other county in this State has the same policy.

Generally, the affordability of declaratory judgment relief is a matter addressed to the discretion of the court, Passaic Valley Sew. Comm’n v. Paterson, 113 N. J. Super. 148, 151 (App. Div., 1971), so long as there is “an actual controversy * * * that is ripe for judicial interpretation,” Lucky Calendar Co. v. Cohen, 36 N. J. Super. 300, 304 (Law Div. 1955), rev’d on other grounds 19 N. J. 399 (1955). In this case, the parties arc in adversarial positions, the legality of a county policy is involved, and the appropriation and budgeting of governmental funds are affected. Since this policy is of long and continuing effect, this matter is “ripe” for adjudication.

N. J. S. A. 27 :16-2 (§ 1102 of the 1918 Act) provides as follows:

Tiie board of chosen freeholders may acquire by purchase, gift or condemnation, any public road, toll road, private road or byroad, or any portion thereof, or any real estate, or interest therein, for any of the purposes set forth in section 27 :16-1 of this title [§ 1101 of the 1918 Act]. [Emphasis added]

Although the permissive term “may” is again used, the class of permissible activity is limited to the three allowable actions, i. e., purchase, gift, or condemnation. See East Orange v. Bd. of Chosen Freeholders, Essex Cty., 89 N. J. Super. 493, 497 (App. Div. 1965). In the context of this legislation, “may” connotes a mandatory, rather than discretionary, authorization:

The word “may” is ordinarily permissive or directory, and the words “must” and “shall” are generally mandatory. Such terms, however, have been held to be interchangeable whenever necessary to execute the clear intent of the Legislature. The problem is primarily one of ascertaining the intent of the Legislature. [Harvey v. Essex County Board of Freeholders, 30 N. J. 381, 391-392 (1959)]

As an indication of the legislative intent to restrict the board to the three enumerated actions for easement acquisition, § 1201 of the 1918 Act (N. J. S. A. 27:18-1) provides that in constructing speedways a board may acquire lands ifby purchase, gift or condemnation, or otherwise” (emphasis added) (L. 1918, c. 185, at 603). The contrast between the limited means for easement acquisition for road improvement and the broad means available for speedways shows the legislative intent to restrict the board to the three enumerated actions. Since the “powers of a county are restricted to those granted to it by statute,” Bergen County v. Dept. of Pub. Util. of N. J., 117 N. J. Super. 304, 310 (App. Div., 1971), the county policy of requiring municipal acquisition of necessary easements before the county improves a road is beyond the authorized powers of the board.

Apparently aware of the mandate of the statute, defendants have asserted that the municipal acquisition and conveyance of easements constitute “gifts” to the county within the statute. Assuming that a municipality can make a gift of a property interest to the county, the initiation of this litigation and the characterization of the county policy as a “condition precedent” indicate that the requisite donative intent is not present. In re Dodge, 50 N. J. 192, 216 (1967).

The board resolution of August 1, 1973, seeks to legitimize the county policy as being authorized by N. J. S. A. 27 :16-70. However, that section deals with municipal improvement of a county road, with cost participation by the county. The present situation is the exact opposite to that of the section; the county, not the municipality, is improving a county road. Moreover, this section requires “execution of * * * an agreement” as to the apportionment of expenses for the road improvement. The institution of. this litigation indicates that there is no such agreement.

Since the present county policy is not “within the orbit of its statutory authority,” Newark v. N. J. Turnpike Authority, supra, and is an “improper scheme,” Paramus v. Bergen County, supra, the judiciary does have the power to strike down the policy: “the bounds of the delegated authority have been exceeded and it is the duty of the court to say so.” Richardson v. Caputo, 46 N. J. 3, 9 (1965). Accordingly, the current county policy requiring municipal acquisition and conveyance of easements necessary for a county road improvement is contrary to law. If the county board decides to improve a county road, it can acquire the needed rights-of-way only through purchase, gift, or condemnation from the owner of the property or interest, regardless of whether the owner is a private individual or a municipal corporation.

Dor the foregoing reasons, summary judgment declaring the County policy contrary to law is granted. Concomitantly, summary judgment dismissing the other claims of the complaints is granted;