author: Mintz, J. S. C.

text:
    JOSEPH P. LORDI, PROSECUTOR OF ESSEX COUNTY, PLAINTIFF, v. UA NEW JERSEY THEATRES, INC., A NEW JERSEY CORP. AND GROVE PRESS, INC., A NEW YORK CORP., DEFENDANTS. EDWARD J. DOLAN, PROSECUTOR OF MIDDLESEX COUNTY, PLAINTIFF, v. GROVE PRESS, INC., A NEW YORK CORP. AND NGC THEATRE CORPORATION, A DELAWARE CORP., DEFENDANTS. LEO KAPLOWITZ, PROSECUTOR OF UNION COUNTY, PLAINTIFF, v. WOOD PLAZA THEATRE CORPORATION AND GROVE PRESS, INC., A NEW YORK CORP., DEFENDANTS.
    Superior Court of New Jersey Chancery Division
    Decided December 9, 1969.

      Mr. Robert L. Podvey, Assistant Prosecutor, for plaintiff Essex County Prosecutor (Mr. Joseph P. Lordi, Prosecutor attorney).

      Mr. David J. Monyek, Assistant Prosecutor, for plaintiff Middlesex County Prosecutor (Mr. Edward J. Dolan, Prosecutor, attorney).

      Mr. Stanley Kaczoroivski and Mr. Predric Shauger, Assistant Prosecutors, for plaintiff Union County Prosecutor (Mr. Leo Kaplowitz, Prosecutor, attorney).

      Mr. Bichará L. Amster for all defendants. (Mr. Nathan Jjewin of the New York and District of Columbia P>ars, of counsel for all defendants; Mr. Douglas S. Liebhafsky of the New York Bar, of counsel for defendant UA New Jersey Theatres, Inc.; Mr. Donald S. Engel of the New York Bar of counsel for defendant NGC Theatre Corporation; Mr. Bernard Kuttner of counsel for defendant Wood Plaza Theatre Corporation).
   Mintz, J. S. C.

In these consolidated proceedings the prosecutors of Essex, Union and Middlesex Counties allege that the motion picture film entitled “I Am Curious (Yellow)” is obscene within the purview of N. J. S. A. 2A: 115—1.1 et seq. They seek to enjoin the showing of this film in the theatres in their respective counties. N. J. S. A. 2A: 115-3.5. The prosecutor of Bergen County did not file a formal complaint but indicated that he would abide by the judgment of the court in these proceedings. Defendants deny that the motion picture is obscene within the meaning of N. J. S. A. 2A:115-1.1 and affirmatively assert that it is within the area of constitutionally protected freedom of speech and press under the First and Fourteenth Amendments to the Constitution of the United States, and Article I, par. 6 of the Constitution of the State of New Jersey.

“I Am Curious (Yellow)" was produced in Sweden. The dialogue is in Swedish with English subtitles added. This film was adjudged not obscene in a 2-1 decision in United States v. A Motion Picture Film Entitled "I Am Curious - Yellow'”, 404 F. 2d 196 (2d Cir. 1968). The court reversed a judgment of forfeiture and confiscation entered in the federal district court upon a jury verdict of obscenity. Judge Hays, writing for the majority, recognized that there may be differences of opinion as to what the picture is “about," but said:

* * * It would perhaps not be demonstrably wrong to say that it is concerned with that subject which has become such a commonplace in contemporary fiction and drama, the search for identity. It is the story of a young girl who is trying to work out her relationship to such political, social, and economic problems as the possibility of a classless society, the acceptance of the Franco regime, and the policy and practice of nonviolence. At one point the girl experiments with oriental religious ritual and meditation. The girl’s inter-personal relationships are also pictured, including particularly her relation to her father, presented as an idealist who has become disillusioned and has given up meaningful activity. A fairly large portion of the film is devoted to the relations between the girl and her young lover.
A number of different techniques are employed in the production of the film. For example much of the early part is in terms of “cinema verite,” showing the girl asking questions on subjects of public importance of the ordinary man or woman in the street. The problem of the nature of reality is suggested by passages representing the girl’s fantasies and by the injection into the story of material concerning the making of the picture itself, such as the director’s relations with the leading actress.
There are a number of scenes which show the young girl and her lover nude. Several scenes depict sexual intercourse under varying circumstances, some of them quite unusual. There are scenes of oral-genital activity, [at 198]

The sex scenes leave very little to the imagination. One' unusual scene is an episode of copulation in the crook of a very large old tree. Nearby a group of fundamentalist Christians are singing. There was testimony to the effect that this scene symbolizes the rebellion of youth against authority and tradition. There is also a scene of intercourse on the balustrade of the Royal Palace in Stockholm, in rhythm to the Swedish National Anthem while a palace guard endeavors to stand at attention watching the antics of the lovers. Apparently this was intended as a humorous incident and was explained by some witnesses as symbolic of the rebellion of youth against authority. Other sexual scenes are shown with greater candor.

The sexual content is frankly presented and, as Judge Hays observed in “/ Am Curious - Yellow ” supra, "with greater explicitness than has been seen in any other film produced for general viewing. The question for decision is whether, going farther in this direction than any previous production, the film exceeds the limits established by the courts.” [at 198]

N. J. 8. A. 2A:115—1.1 provides that:

(a) The word ‘obscene’ wherever it appears in the chapter to whieh this act is a supplement shall mean that which to the average person, applying contemporary community standards, when considered as a whole, has as its dominant theme or purpose an appeal to prurient interest.
(b) Any book, publication, picture, writing, record or other mechanical or electronic audio or visual reproduction or other material shall be obscene within the meaning' of subsection (a) hereof if it is established that:
(1) The dominant theme of the material taken as a whole appeals to a prurient interest;
(2) The material is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters; and
(3) The material is utterly without redeeming social value.

This statute is a codification of the law finally enunciated in Mr. Justice Brennan’s opinion for the United States Supreme Court in A Boole Named “John Cleland’s Memoirs of a Woman of Pleasure” v. Massachusetts, 383 U. S. 413, 86 S. Ct. 975, 16 L. Ed. 2d 1 (1966), hereinafter referred to as Memoirs. As observed in that opinion, all three criteria set forth in the cited statute must coalesce to justify a finding of obscenity. Each of the three criteria is to be applied independently. The social value of the film can neither be weighed against nor cancelled by its prurient appeal or patent offensiveness. If the material in question possesses only a modicum of social value, it is not “utterly without redeeming social value.” Memoirs, at 419, 86 S. Ct. 975.

All ideas having even the slightest redeeming social importance — unorthodox ideas, controversial ideas, even ideas hateful to the prevailing climate of opinion — have the protection of the Eirst Amendment unless excludable because they encroach upon the limited area of more important interests. The protection given speech and press was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people. However, obscenity is not within the area of constitutionally protected speech or press. Roth v. United States, 354 U. S. 476, 484, 77 S. Ct. 1304, 1 L. Ed. 2d 1498 (1957). But cf. Stanley v. Georgia, 394 U. S. 557, 89 S. Ct. 1243, 22 L. Ed. 2d 542 (1969).

Obscenity is excluded from the constitutional protection only because it is utterly without redeeming social value. The portrayal of sex in art, literature and scientific works is not itself sufficient reason to deny material the constitutional protection of freedom of speech and press. Roth v. United States, supra, 354 U. S., at 487, 77 S. Ct. 1304. Material dealing with sex in a manner that advocates ideas, Kingsley International Pictures Corp. v. Regents of the University of the State of New York, 360 U. S. 684, 79 S. Ct. 1362, 3 L. Ed. 2d 1512 (1959), or that has literary, scientific or artistic value, or any other from of social importance, majr not be termed obscene and denied constitutional protection. Jacobellis v. Ohio, 378 U. S. 184, 84 S. Ct. 1676, 12 L. Ed. 2d 793 (1964).

While the State has an interest in and may prevent the dissemination of material deemed harmful to children, that interest does not justify a total suppression of such material, for to do so would reduce the adult population to seeing and reading only what is fit for children. Butler v. Michigan, 352 U. S. 380, 383, 77 S. Ct. 524, 1 L. Ed. 2d 412 (3957); Jacobellis v. Ohio, supra.

Judge Hays stated in “J Am Curious-Yellow,” supra, that the nudity and sexual activity depicted is part of an artistic whole and is united with and related to the story and the characters which are presented. He held that although sexual conduct may be one of its principal themes:

* * * it cannot be said that “the dominant theme of the material taken as a whole appeals to a prurient interest in sex.” Whatever the dominant theme may be said to be * * it is certainly not sex. Moreover, not only is the sexual theme subordinate, but it is handled in such a way as to make it at least extremely doubtful that interest in it should be characterized as “prurient.”
It is even more clear that “I Am Curious” is not utterly without redeeming social value. * * * [I]t is quite certain that “I Am Curious” does present ideas and does strive to present these ideas artistically. It falls within the ambit of intellectual effort that the first amendment was designed to protect. [404 F. 2d at 199-200]

Judge Friendly, in a separate concurring opinion, stated that Judge Hays’ opinion demonstrates the required modicum of social value in the film. He relied solely upon this fact in finding it not obscene and concluded:

* * * I would agree that the presence of ‘redeeming social value’ should not save the day if the sexual episodes were simply lugged in and bore no relationship whatever to the theme; a truly pornographic film would not be rescued by inclusion of a few verses from the Psalms. While this case may come somewhat close to the line, I cannot conscientiously say that a connection between the serious purpose and the sexual episodes and displays of nudity is wholly wanting, [at 201]

Chief Judge Lumbard filed a dissenting opinion in which he stated:

Whatever one can say about the alleged significance of the film, which to this captive onlooker was a continuous and unrelieved boredom except for the sexual scenes, it is almost impossible to remember anything about it. The only impact the picture has and the only impact it was designed to have are the sexual scenes; its only interest to the viewer arises from the uncertainty of the method of mutual sexual gratification in which hero and heroine will next indulge.
While the sex is hetrosexual, the participants indulge in acts of fellatio and cunnilingus. Needless to say these acts bear no conceivable relevance to any social value, except that of box-office appeal. Moreover, the sexual scenes have nothing whatever to do with the remainder of the picture. Obviously the only interest aroused for the average person is a prurient interest. Nor is it persuasive that the explicit sex scenes take only about 10 minutes out of 120. The enormous visual impact of a motion picture as distinguished from other media cannot be disregarded. Cf. Freedman v. Maryland, 380 U. S. 51, 61, 85 S. Ct. 734, 13 L. Ed. 2d 649 (1965). The combination of sight and sound, in the darkness of the movie theatre, result in a uniquely forceful impact on the audience. Because of the nature of this medium, sexual scenes in a motion picture may transcend the bounds of constitutional protection long before a frank description of the same scenes in a book or magazine. Cf. Landau v. Fording, 245 Cal. App. 2d 820, 54 Cal. Rptr. 177 (1966), aff’d per curiam, 388 U. S. 456, 87 S. Ct. 2109, 18 L. Ed. 2d 1317 (1967). * * * [at 203]

In Howard Wagonheim, Agent, etc. v. Maryland State Board of Censors Md., 258 A. 2d 240 (Ct. App. Md.), filed October 22, 1969, the court by a 4-3 vote adjudged the film in question to be obscene. Three members of that court in effect adopted the dissent of Chief Judge Lumbard in “I Am Curious—Yellow” supra. A fourth member concurred but emphasized that there was substantial evidence to indicate pandering within the ambit of Ginzburg v. United States, 383 U. S. 463, 86 S. Ct. 942, 16 L. Ed. 2d 31 (1966). The three judges who dissented agreed with Judge Friendly and found that the film possessed a “modicum of social value.” Counsel represented that the Maryland decision is on appeal to the United States Supreme Court.

The film in question has also been the subject of litigation in several other jurisdictions, with conflicting results. This court viewed the film and is called upon to make an independent judgment, giving such consideration as it deems appropriate to the expert testimony presented before it. Whether or not the motion picture should be suppressed requires ascertainment of the “dim and uncertain line” that often separates obscenity from constitutionally protected expression. Bantam Books v. Sullivan, 372 U. S. 58, 66, 83 S. Ct. 631, 9 L. Ed. 2d 584 (1963).

My conclusion is that the dominant theme of this motion picture taken as a whole appeals to a prurient interest. I also find that the film is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters.

The crucial issue is whether the motion picture is utterly without redeeming social value. There was considerable testimony presented on this criterion by plaintiffs and defendants. 1 will first briefly record my observations respecting the witnesses for plaintiffs on this issue. Father Morton Hill, a Jesuit priest, is a member of the Presidential Commission on Obscenity and president of an organization known as Morality In Media. He stated that the film was utterly without redeeming social value. On cross-examination he testified that the important social issues in the picture are treated insignificantly. The only impact that the picture gives is the sex impact. The rest of the picture is boring. Apparently, he weighed its minimal social value against its prurient appeal and patent offensiveness, contrary to the rule prescribed in Memoirs, supra.

Dr. Ralph Brancale, a psychiatrist and Director of the State Diagnostic Center, and Dr. Basil Campean, a psychiatrist affiliated with the Center, each regarded the sex episodes as entirely unrelated to the remainder of the film. They stated that the 10 or 12 minutes of sexual encounter was included as box office appeal without which the film would not attract the public. They found no redeeming social value in the film.

James Patrick McFadden, assistant publisher of National Review, a magazine, and publisher of a newsletter entitled Combat, was of the view that the girl’s social and political activities were only “vaguely related” to her personal life and that there was nothing in the movie to justify the explicit and offensive sex scenes.

Charles Erancis Earley Clinton, an editorial writer for Triumph Magazine was of the view that the film concerns itself with the character and habits of an unhappy promiscuous Swedish girl who may be engaged in defending Communism. He said there is also an inquiry into the mores and politics of Swedish society. However, in his opinion the patently offensive sexual theme overrides everything else in the film. He was not subjected to cross-examination, presumably because he “weighed” the social value of the film against its prurient appeal and patent oifensiveness, contrary to the rule prescribed in Memoirs.

The defense presented an array of witnesses. I do not accept their testimony with respect to the first two criteria, but do find their testimony helpful with respect to the third criterion.

Ned Polsky, an assistant professor of sociology at the State University of New York, was of the opinion that the film has a great deal of social value because it deals with the discord between the generations and the search of the younger generation for new solutions. He felt that the sex scenes are not tacked on but are an integral part of the story in showing how sex is related to one’s life.

Dr. David Ernest Scanlon, assistant professor of drama and speech at Rutgers, and a student of Swedish drama, testified that he regards the film as an example of the “quest” theme in which all parts of the picture fit together. He characterized it as an “earnest work of art having integrity and coherence,” the product of reflection and the artist’s best impulses and technique.

Hollis Alpert is a film critic for Saturday Review, a film columnist for McCall's Magazine, a publisher of four novels and a lecturer at several universities on the subject of films. He said that “I Am Curious” had social value because it deals with the problems of a young girl in quest for personal values, and that the sex scenes are definitely related to the general theme.

John Ivan Simon was an articulate witness lor the defense. He has taught English, the humanities and comparative literature at several universities. He is the film critic for New Leader. He has written film and theatre reviews for the New York Times, Harper’s, Time Magazine and other publications. He was the drama critic for Commonweal in 1967— 1968, wdiich he characterized as a liberal Catholic weekly. He viewed the film as portraying the search for the good life and thought the film’s message on sex was the need for a permanent lasting relationship. The movie gave him insight into the contemporary Swedish system. He regarded the film as a minor, though honest, work of art.

Dr. Tom Levin is an assistant professor of psychiatry at Albert Einstein College of Medicine. He said that “T Am Curious” has a significant social message in that it reveals the quest of young people for an understanding of their relationship within a particular society. The film, in his view, says that sex is an integrated part of the reality of life.

Dr. Charles Winick is a professor of sociology at City College of New York and a licensed psychologist in New York. He served as advisor on the effects of mass media to the United States Senate Subcommittee on Juvenile Delinquency. He is a member of the Executive Planning Committee of the 19T0 White House Conference on Children and Youth. Dr. Winick viewed the film at the Customs House in New York at the request of the United States District Attorney in the expectation that he might be called as a witness in the federal district court proceeding to which I have already alluded. However, he testified for the distributor, Grove Press, Inc. He regarded the film as extremely important because aesthetically it succeeds in relating the various quests of Lena, the central figure in the picture. He stated that the explicit sex scenes are part of an artistic whole. He said that the film has significance in presenting themes important to today’s young people and in presenting a frank characterization of Lena.

Gerald J. Gargiulo is an assistant professor of religious studies at Manhattan College, and also a practicing psychoanalyst in New York. He believes the picture has social value because its real concern is to present political ideals and, secondarily, to show what young people are experiencing in sexuality. He also said that the sub-themes of nonviolence and fraternization are profoundly religious themes. Although he did not regard the film as a great work of art, he concluded that it had social value.

Professor Sol Worth is associated with the Annenberg School of Communication, a graduate school of the University of Pennsylvania. He has lectured on films at several universities and has produced films. He said that the film has artistic value and is an artistic unit. It is a complex picture that presents issues which make you think. The themes, he said, are not easy to follow, but are not disjointed, and the sexual episodes follow naturally.

Dr. Henry A. Davidson, a psychiatrist and former superintendant of Overbrook Hospital, a psychiatric hospital, testified that the film has social value in that it shows what is troubling our young adults.

The defense offered into evidence a series of reviews by film critics which were received for the limited purpose of showing that the film was seriously treated in respected publications as follows: Vincent Canby in the New York Times, John Simon, in the New York Times, Richard Schickel in Life, Leonard Gross in Look, William Wolf in Cue, Hollis Alpert in Saturday Review, Richard Atcheson in Holiday, Liz Smith in Cosmopolitan, Stanley Kauffmann in The New Republic, Leroy E. Aarons in The Washington Post, Ted Mahar in The Portland Oregonian, Bernard L. Drew in The Hartford Times and Stephen Allen in The Camden Courier-Post.

Plaintiffs offered into evidence the reviews of Alan Adelson .in the Wall Street Journal, Rex-Reed in the New York Times, Nancy Razen in the Newark Star Ledger, Charles Champlin in the Los Angeles Times, and Janies Kilpatrick in the Los Angeles Times.

While I do not unqualifiedly accept everything the experts lor the defense had to say on whether or not the film is utterly without redeeming social value, I believe that their collective testimony was clearly more persuasive than that of plaintiffs and amply reflects the required “modicum of social value.” Memoirs, supra. And I concur in Judge Friendly’s finding to which I made earlier reference and state, as he did, that I cannot conscientiously find that a connection between the serious purpose of the film and the sexual episodes and displays of nudity is wholly lacking.

However, plaintiffs urge that the alleged pandering of the movie should be decisive in finding that it is utterly without redeeming social value. They argue that the film has been advertised in a manner calculated to capitalize on its extensive portrayals of nudity and sexual activity, rather than its supposed serious message, and thus falls within the condemnation of Ginzburg v. United States, supra. The court there said that “* * * Where the purveyor’s sole emphasis is on the sexually provocative aspects of his publications, that fact may be decisive in the determination of obscenity.” (383 U. S., at 470, 86 S. Cl., at 947, emphasis added). The pandering doctrine established in Ginzburg has been substantially incorporated in our statutory law. N. J. S. A. 2A:115-1.2 provides that

In any prosecution under the provisions of the chapter to which this act is a supplement, evidence of pandering or evidence that the sale or distribution of the material in question was exploited on the basis of its appeal to prurient interests, may be considered in determining whether the material is utterly without redeeming social value.

Plaintiffs’ charge of pandering is based solely upon the sale and distribution of the scenario of the film which is contained in a paperback book sold to the general public. The scenario was designed to generate an interest in the motion picture. It is argued that this scenario contains a disproportionately high percentage of pictures of sexual activities and nudity in comparison to the number of such scenes in the film. Hence, it is asserted that pandering operates to negate whatever redeeming social value the film might otherwise have and renders it obscene. In Ginzburg, supra, the court did not deal with a civil action for the suppression of a book or movie, as we are here concerned with, but rather with a criminal action based on the alleged distribution of obscene literature through the mails. While Mr. Justice Brennan’s opinion for the court indicated that pandering properly could be a decisive factor in a determination of obscenity, he also emphasized that criminal convictions of defendants did not necessarily imply suppression of the materials involved, nor chill their proper distribution for a proper use. 383 U. S., at 470, 471, 475, 86 S. Ct. 942.

In the present civil actions plaintiffs seek to enjoin the showing of the film in question. Ginzburg and the instant cases are factually distinguishable. In Ginzburg there was abundant evidence to sustain the finding that the sole emphasis in the advertising was on the sexually provocative aspects of the publications. In the case at bar the newspaper advertising has been completely devoid of any such appeal. There is no claim that the advertising of the film at the theatres here involved is objectionable. The title “I Am Curious (Yellow)” is not suggestive of any appeal to prurient interests. The cover on the paperback book is equally innocuous. Additionally, the book contains not only the scenario of the film, but also excerpts from the testimony of expert witnesses in the United States District Court proceeding to which I have earlier alluded. Both have some redeeming social value and advertise the movie, at least in part, on the basis of its political and social themes. The book which now sells for $1.75 was at the time of this trial available in Newark bookstores, approximately 12 miles from the Colony Theatre in Livingston where the film is currently being shown. There was no testimony respecting the availability of the book in Middlesex or Union Counties. Under all the stated cireumstances, I cannot find that the advertising of the film unduly emphasizes its sexually provocative aspects.

It is plaintiffs’ burden to prove that the film is utterly without redeeming social value. They have failed to do so. On the basis of all the evidence 1 reluctantly and with regret conclude that “1 Am Curious (Yellow)” does possess a modicum of redeeming social value.

Defendants additionally urged the unconstitutionality of the obscenity statute, N. J. S. A. 2A :115—1.1 el seq., as applied to them, particularly in light of Stanley v. Georgia, supra. I refrain from passing upon the same in view of my determination that plaintiffs are not entitled to injunctive relief. It is settled law that a constitutional issue will not be resolved unless absolutely imperative in the disposition of the litigation. Smith v. Livingston, 106 N. J. Super. 444 (Ch. Div. 1969), aff’d o. b. 54 N. J. 525 (1969).

1 thoroughly disliked this movie. I found it offensive and for the most part a bore. However, my subjective distaste for “I Am Curious” is not a proper basis for a finding of obscenity. I am required to act within the guidelines established by the applicable decisions of the United States Supreme Court which have been incorporated into our obscenity statute, At. J. S. A. 2A:115-1.1. In doing so this court is not acting as a censor but is instead discharging its assigned role in delineating the scope of constitutionally protected speech and press. G. P. Putnam’s Sons v. Calissi, 86 N. J. Super. 82, 94 (Ch. Div. 1964), rev’d on other grounds 50 N. J. 397 (1967).

Finally, it was represented by counsel that the basic contracts between the distributor, Gfrove Press, Inc. and the theatre exhibitors provide for the exclusion of minors under the age of 18 from the audience. More importantly, such exclusion is dictated by N. J. S. A. 2A :115—1.3. There was no proof indicating that the current exhibitors were in violation of this provision. However, the exhibitors are cautioned to adhere strictly to this requirement.


source: Caselaw Access Project

author: Mehler, J. S. C.

license: Public Domain

text:
    NEWARK TEACHERS ASSOCIATION, A CORPORATION OF THE STATE OF NEW JERSEY, PLAINTIFF, v. THE BOARD OF EDUCATION OF NEWARK IN THE COUNTY OF ESSEX, THE BOARD OF SCHOOL ESTIMATE OF THE NEWARK SCHOOL DISTRICT AND THE MUNICIPAL COUNCIL OF THE CITY OF NEWARK, DEFENDANTS.
    Superior Court of New Jersey Law Division
    Decided December 2, 1969.

      Mr. Jade Mandell appeared for plaintiff (Messrs. Baile, Jacobs, Goldberger & Mandell, attorneys).

      Mr. Victor A. DeFilippo appeared for defendant Board of Education.

      Mr. Anthony J. Iuliani appeared for defendants Board of School Estimate and the Municipal Council (Mr. 8am

      Weiss on the brief; Mr. Philip C. Gordon, Corporation Counsel of Newark, attorney).
   Mehler, J. S. C.

This is a motion by plaintiff for summary judgment. The essential facts are not in dispute.

Plaintiff is the duly certified bargaining agent of the teaching employees of the Newark Board of Education (board). On June 19, 1967 plaintiff and the board entered into an agreement in which they set forth the terms and conditions of employment of the teachers, including a salary schedule. The contract became effective as of February 1,, 1967, and is to remain in force until February 1, 1970. Among its provisions is one which recognizes the right of plaintiff, by written request made after December 1 of each year of the contract, to negotiate with the board over ail budget items concerning teachers’ salaries and other related matters in the school budget for the following fiscal year. Such negotiations are to terminate, however, as between plaintiff: and the board on February 1 of each year, the statutory date for submission of the budget to the board of school estimate. If these negotiations reach an impasse, either party may request the New Jersey Commissioner of Education to appoint a mediator to help the parties resolve their differences.

Newark is a type I school district (N. J. S. A. 18A:9-2). As such it has a board of school estimate consisting of two members of the board of education, appointed by it, two members of the governing body of the municipality, appointed by it, and the mayor.

The statutory plan for initiating, determining the amount of, approving and funding the annual budget of a type I district is as follows: The board of education prepares and delivers to each member of the board of school estimate, on or before February 1 in each year, a budget for the ensuing year (a school year begins on July 1 and ends on June 30) and fixes a date for a public hearing, which is to be held before the board of school estimate on published notice between February 1 and February 15 next ensuing. At the hearing, taxpayers may be heard with respect to the budget and the various items and purposes for which the moneys are to be appropriated. Then, at or after the public hearing, but not later than February 15, the board of school estimate must fix and determine, by official action taken at a public meeting, the amount of money necessary to be appropriated for the ensuing school year and must make two certificates therefor, delivering one to the board of education and the other to the governing body of the municipality. Upon receipt of the certificate that body must appropriate the amount so certified and include that amount in its tax ordinance, but it is not required to appropriate any amount in excess of 1 of the assessed valuation of the ratables of the municipality. See N. J. S. A. 18A:22-7, 10, 11, 13, 15 and 17.

In December 1968 plaintiff and the board began to negotiate over a demand for an increase in teachers^ salaries and a revision of the salary schedule. Negotiations continued until February 1, 1969, when they were terminated as required by the contract. The board then submitted a budget of $65,000,000 for the year beginning July 1, 1969, which contemplated no change in the existing salary schedule. The board of school estimate reduced the budget to $63,000,000 and certified that amount to the governing body of Newark (city). Since the certified amount exceeded 1 of the valuation of the assessed valuation of Newark’s ratables and therefore was not binding on the city without its consent, the city, upon consideration of the matter, reduced the budget to $61,000,000. The cut was later restored and the city ultimately approved the budget at $63,000,000.

After the budget was adopted, plaintiff invoked the procedures of the New Jersey Employer-Employee Relations Act (N. J. S. A. 34:13A-1 et seq.), which authorizes the New Jersey State Board of Mediation, upon request of a party to a negotiation that has reached an impasse, to take steps through a designated division (in this case the Public Employment Relations Commission) to mediate the dispute and, in case of failure, to invoke fact-finding with a recommendation for settlement. A mediator and a fact-finder were successively designated and each recommended an increase in salaries and a revision of the salary schedules. On August 5, 1969 the board approved the following motion and resolution:

Whereas, the Board deems that salary increases for all its employees are both warranted and necessary for the best interests of this school district, and
Whereas, in order to implement this policy, I hereby move that the Board adopt the following salary schedules, the effective date of both this policy and salary schedules to be the date of receipt of a proper appropriation or the receipt of funds from such other sources which may be available for the implementation of this policy.
Schedule I —Single Salary Schedule for Teachers
Schedule II —Supervisory and Administrative Personnel
Schedule III—Teacher Clerks, Pianists, Laboratory Assistants
Salary Schedule for Board Assigned Substitutes
Salary Schedules for Civil Service Personnel

Resolved, that the Board of School Estimate be asked for an appropriation of $4,700,000 to implement the salary schedules.

Plaintiff and the board estimate that of the amount requested, about $3,500,000 is required for teachers. The balance is for nonprofessional employees.

The board submitted the resolution and a statement of the amount of money necessary therefor to the board of school estimate, which, on August 13, 1969, rejected the request. It did not determine the amount necessary to implement the new salary schedules and hence did not certify any amount to the city.

Plaintiff commenced this action after the board informed it on September 8, 1969 that the new salary schedule would not go into effect until the city appropriated and provided funds to implement it. The complaint is in four counts. The first, which is directed against the board, seeks a judgment (a) declaring void that portion of the board’s resolution which states that “the effective date of both this policy and salary schedules to be the date of a proper appropriation or the receipt of funds from such other sources which may be available for the implementation of this policy” (labelled “offensive language” by plaintiff), and (b) further declaring that the effective date of the policy and schedule was August 5, 1969, the date of their passage. The second count seeks a judgment commanding the board to pay the teachers in accordance with the salary Schedule I of August 5, 1969, a copy of which is annexed to the complaint. The third count asks for a judgment commanding the board of school estimate to fix and determine the amount necessary for the purpose contained in the board’s statement and to certify this amount separately to the board and to the city. The fourth count, alleging that the sum of $4,700,000 should be considered as having been certified to the board and the city, asks that the court command the city to immediately appropriate such sum and pay it over to the custodian of school moneys of Fewark in accordance with N. J. S. A. 18A:22-23.

In short, plaintiff seeks a judgment, the effect of which will provide all teachers with salaries under the new schedule beginning as of August 5, 1969, and which may also have the effect of likewise providing nonprofessional personnel with increased salaries.

Plaintiff has presented its written and oral arguments in the order in which it has framed its complaint. Although plaintiff’s contentions will be discussed in that order, it should be noted at the outset that a basic question in this case, which will be discussed in the latter portion of this opinion, is whether the board was empowered to require the board of school estimate to certify to the city and to require the city to raise and pay over to the board the amount of money necessary to meet increases in salaries granted by the board to all employees during a current school year, no provision for any of which had been made in the board’s annual budget for that year.

I.

Boards of education may seek and receive moneys from municipalities in only two ways. The first and principal one is by means of an annual budget, the procedure for the initiation and adoption of which has already been described for a school district which has a board of school estimate. The contents of the budget of such a district are prescribed by N. J. S. A. 18A :22-8. The budget must indicate, among other things, amounts estimated to be necessary for “current expenses,” which include salaries of all personnel and a miscellany of enumerated items.

The second way is prescribed by N. J. S. A. 18A :22-21 to 23, which provides for the raising of school funds during a school year additional to those set forth in the school budget for that year. Section 21 provides as follows:

When a board of education of a type I district shall determine by resolution that it is necessary to raise in any school year funds additional to those set forth in its annual budget for such year for:
(1) current expenses or repair or furnishing of buildings made necessary because the amount requisite therefor was underestimated in the budget; or
(2) repair or utilization of property destroyed or made unusable by accident or other unforeseen cause; or
(3) meeting emergencies arising since the making of such budget; the board shall prepare and deliver to each member of the board of school estimate a statement of the amount of money determined to be necessary therefor.

Section 22 provides as follows:

The board of school estimate shall meet within a reasonable time after the delivery of the statement and fix and determine the amount necessary for such purpose or purposes and shall certify the same separately to the board of education and to the governing body of the municipality. *

Section 23 provides as follows:

Upon receipt of the certificate, the governing body of the municipality shall immediately appropriate the sum or sums for the purpose or purposes and shall raise such sum or sums in the manner provided by law for the raising of such funds by the municipality in emergencies, and the raising of the funds required by such certificate, in such a ease, shall be considered an emergency. Upon raising the funds, the governing body shall cause the sum or sums to be paid forthwith to the custodian of school moneys of the district for such purpose or purposes.

Plaintiff says that because the sequence of events for requesting, < determining the amount of, and funding additional appropriations is the same as for the annual school budget, the Legislature has made it manifest that in both cases the last act to be performed in the trilogy of events is for an appropriation to take place. Erom this, plaintiff argues that the board, by making the new schedules effective upon the occurrence of an event precedent, namely, appropriation, which the legislative plan contemplates as the last required act, has reversed the sequence of events mandated by the Legislature and has thus acted contrary to the legislative plan.

Although the procedures of type I districts for raising moneys through annual budgets and additional appropriations appear to be the same, there are significant differences between them. In the case of an annual budget, the board of school estimate whose principal function is to supervise the expenditures proposed to be incurred by the board of education, fixes and determines the amount to be expended. N. J. S. A. 18A:22-14. See also Wendel v. Board of Education, Hoboken, 76 N. J. L. 499 (E. & A. 1908). The reviewing body has the discretion to reduce the budget proposed by the board of education and acts only after a public hearing at which the taxpayers, upon notice to them have the right to be heard. The governing body of the municipality also has the right to reduce the amount certified by the board of school estimate when that amount exceeds 1^4% of the assessed valuation of the ratables. Both reviewing authorities may seek to effect savings that will not impair the educational process. Board of Education of East Brunswick Tp., supra, 48 N. J., at 105. As Justice Hall stated for the court in Gualano v. Board of Estimate of Elizabeth School District, supra, 39 N. J., at 305:

The legislative scheme as to appointed school boards, is, therefore, to place in a separate, intermediate body, the majority of whose members are elected officials, the determination of the amount to be raised by taxation for current school purposes and, in addition, to give a kind of veto power to the whole municipal governing body when the figure fixed by the intermediate body exceeds a certain amount.

When an additional appropriation is requested by a board of education pursuant to N. J. S. A. 18A :22—21, the board of school estimate must, as required by section 22, fix, determine and certify the amount necessary for the purpose, and the governing body must, as required by section 23, appropriate and raise the moneys so certified. If the need and circumstances come within the purview of section 21, neither body has any discretion in the matter and, moreover, the 1J4% limitation does not apply. See Gualano, supra, at 306, fn. 1, and Board of Education of Elizabeth v. Elizabeth, 13 N. J. 589, 593 (1953), where the court said that in such a case, if the consent of the governing body were required, “it might fatally handicap the board of education in the event of disagreement between the board and the city in the event of an actual emergency.”

In the case of an annual budget a board of education knows long before the start of a school year what funds are available to it for that year. However, such a board, in requesting an additional appropriation after its budget has been settled, cannot be certain that the purpose for which it seeks funds falls within the purview of N. J. S. A. 18A:22-21. If it pays out moneys from its funds for the current year without first obtaining moneys through appropriation by the municipality, and it turns out that it should not have, it is left in an untenable position, to say the least. Without a protective measure, such as the board took here, it would be in the same position in which the board of education of Elizabeth found itself when it granted all of its employees an increase for a current year, ran short of funds because of it, and was denied relief by the Supreme Court in the Elizabeth case, supra.

There, the city had consented to an annual budget for the school year beginning July 1, 1952. On May 18, 1952, within two months after the budget had been approved, the board of education by resolution decided to increase the salaries of all school employees $200 a year commencing July 1, 1952, and requested the board of school estimate to provide an additional or supplemental appropriation of $190,000. The board rejected the request. On November 13, 1952 the board of education again requested an additional appropriation, this time of $169,725, for the salary increases in the second half of the school year. This request was also rejected by the board of school estimate. Meanwhile, the board of education had been paying the salary increases since July 1, 1952. It made a third request on March 25, 1953, this time for $127,517, in which the board of school estimate acquiesced on May 29, 1953. That board then certified this amount to the city, which refused to pay it. Finding itself short of funds, the board of education sued to compel the city to raise and pay over the moneys requisitioned by the board of school estimate. On appeal from a judgment in favor of the board of education, the Supreme Court set aside the requisition of the board of school estimate as not binding on the city on the ground that in the absence of an emergency, the request for funds was not authorized by and could not be made under N. J. S. A. 18A:22-21. It can thus be seen why a board of education should not act so as to place itself in the position in which the Elizabeth board found itself in the cited case.

I do not find that there is a legislative plan which disabled the board from postponing the effective date of salary raises to a date on which moneys for them were appropriated or otherwise received. Therefore, the so-called “offensive language” will not be declared void; nor may I declare that the effective date of the new schedule was August 5, 1969, unless N. J. S. A. 18A:29-4.1, upon which plaintiff also relies, ordains that a salary schedule becomes effective on the date of its adoption. A fair reading of the statute does not permit such a construction. It provides as follows:

A board of education of any district may adopt a salary policy, including salary schedules for all full-time teaching staff members which shall not be less than those required by law. Such policy and schedules shall be binding upon the adopting board and upon all future boards in tho same district for a period of two years from the effective date of such policy but shall not prohibit the payment of salaries higher than those required by such policy or schedules nor the subsequent adoption of policies or schedules providing for higher salaries, increments or adjustments. Every school budget adopted, certified or approved by the board, the voters of the district, the board of school estimate, the governing body of the municipality or municipalities, or the commissioner, as the ease may be, shall contain such amounts as may be necessary to fully implement such policy and schedules for that budget year.

Plaintiff argues that the term “effective date” appearing in the statute means date of adoption; that a similar thought was shared by the court in Rall v. Board of Education of Bayonne, 104 N. J. Super. 236 (App. Div. 1969). The question there presented, however, was whether the board of education effectively conferred tenure on Rail, a former superintendent of schools, by a resolution attempting to accomplish that object. The statute was cited only by way of an example of legislation empowering a local board to act in regard to a particular subject matter in a manner effectual over a period of time beyond the life of the adopting board. In saying that a salary schedule binds the adopting and future boards for two years from date of adoption, the court probably did not mean to disregard the precise wording of the statute which says that a salary policy and schedules shall bind the boards for two years “from the effective date of such policy”. The court’s use of the word “adoption” cannot, therefore, be considered as an intentional and authoritative equation by it with the words “effective date.”

The statute does not require that a new salary schedule shall go into effect on the date of its adoption. It says that the salary policy shall be binding on the board of education for two years from the effective date of the policy — not from the date of its adoption. Had the Legislature intended the latter, it could easily have so expressed itself. Opinions of the Commissioner of Education, cited by plaintiff on another aspect of the case, show that since the enactment of the statute, boards of education have been adopting salary schedules for inclusion in their budgets for the ensuing school year.

II.

It is undisputed that the annual budget submitted by the board for the school year 1969-1970 contemplated no change in the salary schedule and that the budget as approved did not contain moneys for the salary increases which were adopted in August. Plaintiff contends that the board knew that the salary negotiations which had to be terminated by February 1 would have to be resolved and that when it adopted the new schedules the board intended, in effect, to amend the current 1969-1970 budget in the “current expenses” area.

There is no statutory provision permitting a board oí education to amend its annual budget after it has been approved. Additional funds may be requested and appropriated only under N. J. S. A. 18A:22-21 to 23. In fact, plaintiff conceded at oral argument that it cannot prevail here unless the raises come within the purview oí N. J. S. A. 18A:22-21(1).

In the case of Board of Education of Elizabeth v. Elizabeth, supra, the court held that a board of education may resort to section 21 only in the case of emergency. It held that even though a request is made under the “underestimate” clause of N. J. S. A. 18A:22-21 and not the “emergency” clause of that statute, it cannot be allowed except in case of an emergency, and that a general salary increase does not constitute an emergency, saying:

In a school caso an emergency has been defined as ‘a sudden or unexpected occurrence or condition calling for immediate action,’ * * *. In the orderly conduct of school affairs budget-making should be an annual process except for real emergencies, [at 5931

See also Gualano, supra, 39 N. J., at 306, fn. 1, where the court continued to note the distinction between the case of an emergency and that of an annual appropriation.

Plaintiff here does not say that an emergency existed on August o, 1969. In fact, it has specifically disclaimed the existence of one. Since there is none, I am obliged by the Elizabeth case to hold that the board was precluded from endeavoring to raise moneys for the increased salaries for the current school year. Furthermore, it bound itself to pay only upon receipt of the necessary funds.

Plaintiff says that N. J. S. A. 18A:29-4.1 “binds not only proposed budgets for ensuing school years but also binds additional appropriations,” citing Woodbridge Township Education Association, Inc. v. Board of Education of Woodbridge Tp., 91 N. J. Super. 54 (Ch. Div. 1966). The statute is not subject to such interpretation. It makes no reference to additional appropriations, but only to budgets adopted for a budget year in the manner in which they are customarily made and approved. In Woodbridge the court merely said that boards of education may now fix salary policies and schedules separate from as well as part of annual school budgets instead of providing for salary increases only in their annual budgets as had been the custom before the statute was enacted. The court neither said nor held that, by force of the statute, schedules adopted during a current school year raise salaries for that year.

Plaintiff’s final contention against the board is that by failing to honor the new salary schedule, the board has deprived the teachers of their proper salary, the effect of which constitutes a reduction in compensation in violation of the tenure statute, N. J. S. A. 18A:6-10. The claim is without merit. The failure to receive an increase in salary does not constitute a reduction in compensation. Kopera v. West Orange Board of Education, 60 N. J. Super. 288, 297 (App. Div. 1960).

III.

Plaintiff’s case against the board of school estimate and the city rests on N. J. S. A. 18A:22, 23 and N. J. S. A. 18A:29—4.1. It argues that section 22 compelled that board to fix, determine and certify the amount required to meet the raises and that the degree of discretion reposed in the board by that statute was removed with respect to the pay of teachers by section 29-4.1.

When a real emergency exists section 22 requires the board of school estimate to determine the amount of money needed to meet the request of the board of education and to certify that amount to the governing body of the municipality. Where, however, as here, no emergency existed when the board approved the salary motion and adopted its resolution on August 5, 1969,. the board of school estimate could not lawfully compute the total of the increases for the current school year and call on the city to raise and pay over the moneys to the board. Had it done so its requisition would have had to be set aside, as was done by the court in the Elizabeth, case, supra. The question finally presented is whether N. J. S. A. 18A :29-4.1 authorized and required the board to requisition the city tor moneys for the current school year.

That statute does not purport to apply to, amend or modify the additional appropriation provisions of the school laws, N. J. S. A. 18A -.22-21 to 23. It was evidently enacted to meet an entirely different situation. Apparently prior to the statute it was not uncommon in the give-and-take of annual budget-making for boards of education to reduce salary schedules ■ after their adoption by the board but before final approval by the approving authorities. See e. g., Oualan'o and Woodbridge Township Education Association, Inc., supra, where the boards of education after encountering difficulties in obtaining approval of their proposed budgets which contained salary increases for teachers, amended their budgets by reducing the increases. I find that the purpose of the statute was to prevent such occurrences by forbidding the adopting and future boards and approving authorities from reducing teachers’ salary schedules in the budget-making process.

The statute carries out this purpose by providing that a salary policy and schedule adopted by a board of education shall bind it and future boards for two years, and that “\_e]very school budget adopted, certified or approved by the board, the voters of the district, the board of school estimate, the governing body * * * or the commissioner, as the case may be, shall contain such amounts as may be necessary to fully implement such policy and schedules for that budget year.” (Emphasis added)

Decisions of the Commissioner of Education cited by plaintiff are not pertinent and do not support its position inasmuch as they involve either the interpretation of budgets or the funding of annual budgets. Eor example, in Board of Education of Deptford Tp. v. Deptford Tp., 67 S. L. D. 62, the Commissioner had before him an appeal from the action of the township certifying to the county board of taxation a lesser amount of an appropriation for school purposes for the 1967-68 school year than the amount proposed by the board in its budget, which was rejected twice by the voters. The board had adopted a salary schedule in December 1966 which became part of its budget for the 1967-68 school year. The Commissioner held, as the statute requires, that the salaries called for by the schedule were fixed and that the funds required for its implementation had to be provided for in the budget.

Since in my opinion the statute is not applicable to a request for an additional appropriation for nonbudgeted salary increases, it cannot be employed to compel defendant board of school estimate to certify, and defendant city to raise and pay over, moneys for salary increases for the school year 1969-70. The new schedule for teachers adopted in August 1969 will undoubtedly be given effect in the 1970-71 budget, as required by the statute.

       See also Gualano v. Board of Estimate of Elizabeth School District, 39 N. J. 300, 304 (1963), where this statutory procedure is reviewed for a Chapter 6 district, now known as a type I district since the revision of Title 18.
      School districts are classified as type I and type II. N. J. S. A. 18A :9-2. In a type II district which does not have a board of school estimate the proposed budget is presented to the voters at a referendum. If the5>- reject it, and the proposal, or a revised one, is not approved at a second referendum, the municipal council, after consultation with the board of education, determines the amount to be appropriated. If it fails to do so, the Commissioner of Education makes the determination. N. J. S. A. 18A :22-32, 33, 36, 37, 38. When the amount approved by the council is considered inadequate by the board of education, its remedy is by appeal to the Commissioner of Education. Board of Education of East Brunswick Tp. v. The Township Council of East Brunswick Tp., 48 N. J. 94 (1966).

       “Salary policy” includes fringe benefits of employment in addition to salary schedules. Board of Education of Cliffside Park v. Mayor, etc. of Cliffside Park, 100 N. J. Super. 490, 493 (App. Div. 1968).


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

text:
    MARY ANN PINEIRO AND CARMEN OLGA FAJARDO, PLAINTIFFS-APPELLANTS, v. CARMEN NIEVES, INDIVIDUALLY AND KNOWN AS CARMEN NIEVES FAMILY, ALSO KNOWN AS CARMEN NIEVES AND FAMILY, ALSO KNOWN AS NIEVESY-CARMEN FAMILY, RUBEN NIEVES, GIL RENE NIEVES, AND RAFAELA RODRI-GUES, EITHER JOINTLY OR SEVERALLY, DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued December 1, 1969
    Decided December 16, 1969.
    Before Judges Sullivan, Carton and Halpeen.

      Mr. Aaron G. Greenberg argued the cause for appellants (Mr. Robert STievick, attorney).

      Mr. Herbert E. Greenstone argued the cause for respondents {Mr. Allan J. Naishuler, on the brief; Messrs. Greenstone & Greenstone, attorneys).
   The opinion of the court was delivered by

Sullivan, P. J. A. D.

This appeal involves a family dispute over a New York State lottery ticket which became entitled to a prize of $100,000. The ticket was issued in the name “Carmen Nieves and Eamily.” After the ticket was drawn as a winner Carmen Nieves, by letter, notified the Director of the New York Lottery that she, her sons Ruben and Gil Rene, and her daughter, Rafaela, all defendants herein, were entitled to share in the prize.

Plaintiffs are daughters of Carmen Nieves and claim to be co-owners of the ticket along with their mother and their brother Ruben. Specifically, plaintiffs aver that they and their mother and brother had been purchasing New York State lottery tickets for many months under an agreement that they would each contribute 25 cents towards the one dollar cost of the ticket and, if it won, share equally in the prize awarded. As to the. particular ticket, plaintiff Mary Ann Pineiro, in her amended affidavit, states that it was purchased and paid for by her, that she filled out the name “Carmen Nieves and Eamity,” and shortly thereafter collected 25 cents each from her mother, her brother Ruben, and her sister Carmen, the co-plaintiff herein. (Presumably the ticket was given to her mother.)

After the ticket was drawn as a winner and a check for $100,000 had been sent to defendants, plaintiffs demanded their alleged share of the proceeds. Upon refusal, suit was commenced to enforce plaintiffs’ demand. Defendants’ answer denied plaintiffs’ factual allegations and also pleaded that the alleged agreement was illegal, null and void. Defendants then moved for summary judgment on the ground that the alleged agreement on which plaintiffs based their claim arose out of a gaming transaction and was void by virtue of N. J. S. A. 2A :40—1 and 3.

The trial court ruled that the alleged transaction “springs from a lottery” and was contrary to the present pnblie policy of New Jersey and was unenforceable in the courts of this State by virtue of N. J. S. A. 2A:40--3. Plaintiffs appeal.

Consideration of the matter requires that the provisions of N. J. S. A. 2A :40-l and 3, relied on by the trial judge, be stated.

2A :40-l. Gaming transactions unlawful

All wagers, bets or stakes made to depend upon any race or game, or upon any gaming by lot or ehance, or upon any lot, chance, casualty or unknown or contingent event, shall be unlawful.
* * * * *

2A :40—3. Gaming transactions, obligations and securities void

All promises, agreements, notes, bills, bonds, contracts, judgments, mortgages, leases or other securities or conveyances which shall be made, given, entered into or executed by any person, the whole or part of the consideration of which is for any money, property or thing in action whatsoever laid, won or bet in violation of section 2A :40-l of this title, or for reimbursing or repaying any money knowingly lent or advanced to help or facilitate such violation, shall be utterly void and of no effect.

Those provisions are of ancient origin and contain a broad sweep against the lawfulness of gaming transactions generally. In addition, our criminal statutes make gaming transactions, including possession of a lottery ticket, criminal offenses. As to the criminality of possession of a lottery ticket see AT. J. S. A. 2A :121—3 and Ar. J. S. A. 2A :170—18. However, shortly after the New York State Lottery was established in 1967, these criminal statutes were amended to legalize possession of a ticket for a lottery authorized, sponsored, and operated by another State, provided the ticket was purchased by the holder in that State. See L. 1967, c. 88, §§ 1 and 2. The amendments represent a legislative modification of the public policy against lotteries, and are to he read in pari materia with the provisions of N. J. S. A. 2A:40-1 and 3, making all gaming transactions unlawful and all promises, agreements, and contracts in connection therewith utterly void and of no effect. Eor this reason the earlier cases relied on by defendants, such as Van Doren v. Staats, 3 N. J. L. 448 (Sup. Ct. 1811), are not controlling.

It is to be noted that since the decision by the trial court in this case, Article IV, Section VII, paragraph 2 of our 1947 Constitution has been amended to make legal the conducting of state-operated lotteries in New Jersey when the proceeds aTe used for state institutions, state aid for education. See statement attached to Assembly Concurrent Resolution No. 32 (1969) proposing to amend the aforesaid constitutional article.

In this case the purchase of the ticket in question, and its possession by defendant Carmen Nieves, Was presumptively lawful. Receipt of the prize money was also legal. The winning ticket was made out in the name of “Carmen Nieves and Family.” Plaintiffs are daughters of Carmen Nieves and allege that they are members of the Carmen Nieves Family within the intendment of the legend on the ticket. No public policy is offended by having this factual issue determined.

The summary judgment is set aside and the matter remanded for determination of the factual issues involved. Costs to abide the outcome.


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

text:
    LEO KAPLOWITZ, PETITIONER-APPELLANT, v. K & R APPLIANCES, INC., RESPONDENT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued December 1, 1969
    Decided December 17, 1969.

      Before Judges Conford, Collester and Kolovsky.

      Mr. Alfred J. Hill argued the cause for petitioner (Messrs. Wilentz, Goldman & Spitzer, attorneys).

      Mr. John S. Bonington argued the cause for respondent (Messrs. Schneider & Morgan, attorneys).
   The opinion of the court was delivered by

Conford, P. J. A. D.

Both parties io this appeal agree that petitioner sustained a coronary occlusion causing a myocardial infarction on December 14, 1963 and a recurrence thereof on or about January 18, 1964, both work-connected, the December 14 incident directly and that of January 18 indirectly. The issue disputed below and here is whether later infarctions sustained by petitioner on October 18, 1965, June 30, 1967 and March 3, 1968 were also causally related to the employment. See Schiffres v. Kittatinny Lodge, Inc., 39 N. J. 139 (1963); Close v. Kordulak Bros., 44 N. J. 589 (1965). The Division of Workmen’s Compensation held they were; the Essex County Court that they were not. Petitioner appeals.

More precisely, the issue so resolved was, whether the first infarction caused or materially contributed to the occurrence oí the later infarctions or whether the latter were due solely to the natural progression of the cardivascular, arteriosclerotic disease from which petitioner was suffering even prior to the first occlusion and infarction. Despondent impliedly concedes, and it would he our view, that; if there was causal relation between the first and the three later infarctions, causal relation with work-effort is thereby established and petitioner becomes entitled to an award for the amount of disability existent after the last of the infarctions, which the proofs show to have been substantially greater than after the first.

The record shows hospitalizations for coronary infarctions sustained by petitioner for the following periods; (1) December 15, 1963 to January 12, 1964 ; (2) January 38, 1964 to February 23, 1964; (3) October 18, 1965 to November 10, 1965; (4) June 30, 1967 to July 15, 1967; and (5) March 3, 1968 to March 17, 1968. After the first attack petitioner resumed his employment with respondent in Newark on a part-time basis in July 1964, but soon thereafter changed to a sedentary job nearer home averaging about six hours a day. This continued until his October 1965 attack. He returned to sedentary work on a two-three hours daily basis in April or May 1966 and continued thereat until the June 1967 attack. He returned to the same work in September 1967 and continued until November 1967, when he went to Florida for the winter on his doctor’s advice. He sustained the March 1968 infarction in Florida. The hearings in this case concluded in April 1968.

Petitioner was attended by Dr. Klein, an internist aud petitioner’s family physician, during the entire period of the coronary episodes involved in this case. Petitioner had a previous condition of mild hypertension, emphysema without serious symptoms and a chronic bronchial cough. During and after the 1963-1964 hospitalizations Dr. Klein was prescribing coronary vasodilators and anti-coagulants for the heart and other medications for the bronchitis. There were periodic office visits until the October 1965 attack. There were no visits between February 2, 1965 and August 16, 1965.

At the hospital in October 1965 petitioner was given medications for the heart muscle and for thinning the blood and a diuretic to relieve congestion from fluid in the chest.

Between hospitalizations petitioner was receiving various medications to help his heart and circulation. By the time of the hearings he was also receiving nitroglycerin for relief of anginal symptoms.

Dr. Klein described the 1963-64 infarction as of the anterior-lateral wall (the hospital records say “anterior wall”) ; the October 1965 incident as concerning the “lateral wall”; and the June 1967 event, the anterior wall. He stated that electrocardiograms (“EKG,” hereinafter) taken at different times between the 1963-64 and 1965 infarctions showed an essentially stable condition, but on cross-examination he would not say they showed the prior infarction to have been “healed” but only “healing.” Yet on further cross-examination he conceded that a healed condition would be indicated by a period between “stable” EKG’s. He also said that comparative EKG’s on March 9, 1964 and August 31, 1964 (at some points in the record August 31, 1965 is the date given) reflected “as much healing as possible in the myocardial infarction.”

Dr. Klein testified that the October 1965 infarction was a “fresh” one, in a “different portion of the heart” from the prior one, although contiguous thereto.

Dr. Klein could not relate the October 1965 and later infarctions to the first or to the work effort, but stated: “I’m of the opinion that a man who has had one coronary is a better than average candidate to have another.” However, he conceded this was a statistical conclusion based on the fact that “this is a degenerative disease which progressively worsens itself.” At another point he said in relation to the October 1965 incident: “Certainly this is a recurrent myocardial infarction. Its absolute association with preceding history is — I can’t testify to that.”

Dr. Klein testified that, among other things, a January 19, 1964 EKG showed ischemia, meaning deficient oxygenation, duo to inadequate circulation, and interference with heart-muscle function. He also said there were “bridging symptoms” of pain throughout the whole history of heart pathology here involved.

Dr. Rowland Goodman testified as examining expert for petitioner on the basis of a hypothetical question and examinations of the subject on January 11, 1966, September 19, 1967 and April 18, 1968. He testified that he felt the work effort in 1963 was related to the later heart attacks since it caused petitioner’s condition to deteriorate more rapidly than it would have without it. He also stated the earlier heart attacks contributed to the 1965 one since the EKG’s showed only a healing process and never an arresting of the healing. He had the same opinion in relation to the later infarctions. The fact that the attack was in a different part of the heart was irrelevant. But in giving his diagnosis as of the January 1966 examination he said “the patient was suffering from arteriosclerotic heart disease with headed myocardial infarction, coronary and cardiac insufficiency” (emphasis added). By September 19, 1967 the doctor found “an increasing degree of congestive heart failure,” indicated by extension of rales in the lungs, as compared with the prior examination, and more rapid heart rate than previously.

It is notable that while Dr. Goodman testified that the entire pathological process as it developed all stemmed back to the occlusion and infarction of December 1963, he gave no explanation in physiological terms for that conclusion.

Dr. Jack York, testifying as an expert for respondent, stated that his examination of the subject on January 12, 1966 showed a healed myocardial infarction and coronary insufficiency. There was no evidence of cardiac failure or enlargement. He testified that his examination of the hospital records reflected a “good recovery” from the 1963-64 infarction as well as from the 3965 one. The October 1965 episode resulted from the natural progression of the underlying arteriosclerotic disease, not from the 1963-64 incident “which had stabilized long before.” Each successive infarction closed off a separate and distinct coronary artery and each (after the first) was attributable solely to the progression of the disease, not to any previous infarct. Most of the medication the petitioner was taking was for his arteriosclerotic condition, not for the infarction. Coronary occlusions, generally, are caused by arteriosclerosis, not by cardiac failure.

Tn granting recovery the judge of compensation did not specifically treat the issue as to whether the October 1965 arid later infarctions were caused or materially contributed to by the initial infarction of 1963-64. He found the testimony of the petitioner’s medical witnesses to be more “convincing and acceptable” and stressed that the “bridging symptomology * * * bespeaks causal relation.” He found that the infarcts never “healed or stabilized, but were healing,” but he did not say why he so concluded in light of the admissions of Dr. Klein, based on the comparative EKG’s, to the contrary, and the testimony on that score by Dr. York.

Judge Antell, for the Essex County Court, found that petitioner had not established that the coronary occlusion and infarction of 1963 played a causal role in producing or contributing to the later incidents beginning with the infarction of October 1965. He found lacking in the testimony a medical explanation in physiological terms for the affirmative conclusion of Dr. Goodman, as required by Schiffres v. Kittatinny Lodge, Inc., supra (39 N. J., at 150). He accepted the explanation of Dr. York that the later occlusions and infarctions were caused by the progressive arteriosclerotic condition unassociated with the work effort or the original occlusion and infarction. He consequently reversed the award insofar as it allowed for the increased disability arising out of the later infarctions.

The rule which must govern us on this review needs to be formulated on the basis of the approach taken in Close v. Kordulak Bros., supra (which decision also bears examination on the substantive issue here presented; see infra). That case involved review of concordant conclusions of the Division of Workmen’s Compensation and the County Court allowing compensation in a heart case. The court abandoned previous judicial formulations imposing a duty of full review de novo on the Appellate Division in compensation cases and prescribed the same rule in that regard as that on appeal in any non-jury civil case, viz., “ ‘whether the findings made could reasonably have been reached on sufficient credible evidence present in the record/ considering ‘the proofs as a whole/ with due regard to the opportunity of the one who heard the witnesses to judge of their credibility. * * * and, in the case of agency review, with due regard also to the agency’s expertise where such expertise is a pertinent factor.” (44 N. J., at 599).

It is apparent that the foregoing formulation is couched in terms peculiarly appropriate to a case where the tribunal under review has found in favor of the proponent of the litigated issue, as was the case in Close. It requires adaptation where the tribunal under review (here, the County Court) has found against the proponent of the issue. The finding here under review is that the proponent has adduced inadequate proofs, or proofs which are not creditable, as against creditable counter-proofs, so that in the ultimate the proponent has not borne its burden of establishing its case (causal connection between the original and later infarctions) by the preponderance of the probabilities on the believable evidence. We should strive, in that context as well, to conserve the basic principle of Close — that the Appellate Division will ordinarily not undertake a review de novo and make an independent decision of the contested issue of fact but only decide whether the determination of the tribunal under review is reasonably supportable on the whole record before it. So guided, our function here is to examine the record for the purpose of determining whether the County Court conclusion is reasonably supportable on the whole record before it, in the light of the legal principles applicable, giving due regard to any conflicting findings of the Division of Compensation founded on either special expertise or a superior opportunity to appraise credibility of the witnesses.

Review here must, however, be attuned not alone to the evidence but to certain principles declared in two opinions of the Supreme Court involving compensability in heart cases, Schiffres and Close, both cited above. Schiffres is the more pertinent on the facts.

There petitioner’s decedent had sustained a work-connected coronary occlusion July 1951 causing an infarction in the anterior wall of the left, ventricle of the heart. In January 1955 he sustained a posterior-wall occlusion and infarction, and he died in his sleep in 1958. The issues were causal connection between the 1951 incident and, respectively, the 1955 occlusion and infarction and the death. More fundamentally, the crucial issue was causal connection between the two infarctions. 39 N. J., at 146. It was agreed that the decedent suffered from arteriosclerosis before and after the first infarction. Petitioner offered expert medical testimony to the effect that the first occlusion had impaired circulation in the area of the infarct which was not fully compensated for by the rise of collateral circulation; that the lessened circulation imposed a greater burden on the heart, and that the incidence of the second attack had to be causally attributed to the cardiac condition thus described. The theory advanced was essentially the same as the “statistical” opinion submitted by Dr. Klein in the present case, i. e., that the victim of a coronary attack is a better candidate than other persons for another such attack.

The court criticized this approach on the ground that it was devoid of explanation of the mechanism by which the second infarction, not accompanied by any particular incident, was “physically” produced, as well as of the relation thereof to the first infarction (39 N. J., at 150, 152). See also, stressing the necessity in heart cases of explanation of causal relation in physiological terms, Dwyer v. Ford Motor Co., 36 N. J. 487, 494-495 (1962); Aladits v. Simmons Co., 47 N. J. 115, 124-125 (1966). While the court did not rule out the possibility of satisfactory medical proof in a particular ease of causal connection between a given infarction and a later one, it mentioned with seeming approval the explanation given by respondent’s expert — that when an infarct heals its “pathological effects have spent themselves”; that the resultant lowered cardiac reserve had no causal relation to the occurrence of the later infarct in a different part of the heart wall, the latter having been solely an emanation from the “progressively sclerotic coronary arteries” (39 N. J., at 152). The court found in the ultimate that respondent’s position of absence of causal connection between the two occlusive infarctions was more persuasive than the contrary thesis (39 N. J., at 154), but not without heavy prior emphasis upon the untoward consequences of any tendency to treat a work-connected infarction as a guaranteed basis for recovery of additional compensation for any later infarction or death from infarction (39 N. J., at 146-147).

In Close v. Kordulak Bros., supra, the decedent suffered a compensable coronary occlusion and attendant myocardial infarction on September 9, 1959, and, as established by an autopsy, he died of heart failure, not from any new infarction, on August 3, 1961 (44 N. J., at 591, 600). In the interim he was able to work only six weeks, some time after the first attack, and at a very light job. The evidence showed that decedent’s condition deteriorated “steadily and rapidly” after the heart attack. There' were repeated episodes of coronary insufficiency, four requiring hospitalization. Death was caused by congestive heart failure. The court found persuasive the testimony of three physicians, including the treating physician, that the original infarct "materially contributed to the subsequent severity and rapidity of the degenerative sclerotic process, the repeated attacks of coronary insufficiency and the ultimate acute and terminal heart failure.” (44 N. J., at 600). Contrast Baginsky v. American Smelt. & Refin. Co., 88 N. J. Super. 69 (App. Div. 1965), certif. den. 45 N. J. 588.

In the instant case petitioner resorts to the claimed analogy of Close, respondent to that of Sehiffres. Factually, the case at hand, viewed de novo, seems to fall between the two. But, as seen above, the procedural principles of Close call for appellant to demonstrate from the record unreasonableness in the findings and conclusions of the County Court of absence of causal contribution by the 1963-64 attack to that of October 1965 and the later ones. We think he has failed to do so. :

From the proofs, although in some respects controverted, it could reasonably be found that there was recovery from and healing of the first infarct, and a stabilization of that particular condition well before the 1965 attack, notwithstanding the fact that the general arteriosclerotic condition progressed, with some attendant coronary insufficiency; that the 1965 occlusion and infarction were the results solely of the progress of the degenerative sclerotic process, not materially contributed to by the first infarction or by any direct sequela thereof; that no satisfactory medical evidence of causal relation between the two infarctions was adduced by petitioner; that there were periods of'stabilization after the 1965 and 1967 infarctions; and finally that petitioner’s 1965 arid later coronary incidents were the result of his progressively degenerating arteriosclerotic condition, not related, directly or indirectly, to his work with the respondent corporation. ' '

In the light of the nature of the findings and conclusions of the judge of compensation, summarized above, as against the record, we cannot fault the County Court's conclusions on the basis of alleged failure to accord due weight to the former’s expertise or opportunity to appraise credibility.

Judgment affirmed.

       Throughout this opinion, references to the first infarction will connote the December 1963 and January 3964 incidents, taken together.

       "We are informed petitioner has since died, but none of the circumstances are reflected by the record, and we consequently ignore that fact.

       These dates reflect correction by Dr. Klein of his earlier testimony mentioning a June 22, 1965 date rather than August 16, 1965.


author: Per Curiam. Carton, J. A. D.,

text:
    THANET CORPORATION, A CORPORATION OF THE STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. THE BOARD OF ADJUSTMENT OF THE TOWNSHIP OF PRINCETON, AND W. JOSEPH SHINN, BUILDING INSPECTOR OF THE TOWNSHIP OF PRINCETON, DEFENDANTS, AND THE TOWNSHIP COMMITTEE OF THE TOWNSHIP OF PRINCETON, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued November 17, 1969
    Decided December 10, 1969.
    Concurring Opinion December 22, 1969.

      Before Judges Sullivan, Carton and Halpern.

      Mr. Henry A. Hill, Jr., argued the cause for appellant (Mr. Gordon D. Griffin, attorney).

      Mr. Garrett M. Heher argued the cause for respondent (Messrs. Smith, Stratton, Wise & Heher, attorneys).
   Per Curiam.

This appeal, by the Township of Princeton, in a zoning case arises out of a long-term ground lease entered into between plaintiff, as owner of a five-acre tract of land situated in the Township, and the United States of America (Post Office Department). The lease recognizes that the Government intends to assign the lease to a “tenant” for the construction on the demised premises of a post office and incidental facilities according to the building and design requirements of the Government which will then lease back the premises.

The tract is located in an area zoned as “engineering and research” by the Township. Following the denial of plaintiff’s application for municipal approval of the proposed post office facility (plaintiff sought alternatively a use variance, a special permit, or a variance for the proposed use under the lease), the instant suit was filed seeking a reversal of the denial of the application. By the second count of the complaint, plaintiff sought a declaration that the establishment of the general post office facility will, for the entire period of time it is used for that purpose, be immune from the Township Zoning and Land Subdivision Ordinances.

After issue was joined, the trial court granted plaintiff’s motion for summary judgment on the second count of the complaint, the court holding that the United States Government “whether as owner or lessee, is immune from zoning ordinances.” The court’s opinion is reported at 104 N. J. Super. 180.

On this appeal the Township concedes that if the United States Government owned the tract in question, its establishment of a post office facility would be immune from the Township Zoning Ordinance. However, the Township argues that the Government’s mere lease of the tract, even for post office use, cannot confer immunity on it.

We do not agree and affirm the judgment herein substantially for the reasons expressed in the trial judge’s opinion.

In view of the ruling, we find it unnecessary to consider whether or not plaintiff’s application for a use variance or a special permit should have been granted.

Affirmed.

Carton, J. A. D.,

(concurring in result). In my view, the requested variance should have been granted. However, I question the correctness of the conclusion implicit in the judgment affirmed by the majority that a private owner may invoke governmental immunity from local zoning ordinances by leasing property to a superior governmental agency.

Plaintiff, as owner of a five-acre parcel on Harrison Street North in Princeton Township, had applied for both a hardship variance from the minimum width requirement and a use variance to permit the establishment of a United States post office facility in the Engineering Besearch District.

The voluminous proofs before the board of adjustment are fully summarized in nearly 100 pages of official minutes, taken at six separate hearings in 1967. However, the salient facts do not appear to be in substantial dispute.

The present post office consists of two facilities, a main building located in Palmer Square in Princeton Borough, and the Annex, near the railroad station some distance away in Princeton Township. The main building at Palmer Square houses some 48 employees, is inadequate and outmoded, lacks adequate parking area, and cannot feasibly be enlarged. The Annex, originally designed for 43 employees, now houses over 100, and is leased from Princeton University which now desires the property for its own use. These two facilities, in the fiscal year 1967, handled some 81 y2 million pieces of mail, an increase of 20 million over the previous year. The rate of growth of mail handled between 1961 and 1967 was 66%.

The site for the proposed new facility was selected after investigation of numerous possible sites made as a result of studies begun in 1959 as to postal needs of the Princeton area. It is bounded on one side by property of the American Can Company, which employs 50 employees, and on another by that of Opinion Research Corporation, which has 150 employees. In the vicinity are the premises of Gallop and Robinson, a concern which employs 65 full-time employees and 35 part-time employees.

At the time plaintiff’s application came before the local board, the Engineering Research District permitted uses described in the title (later amended to add office uses). It also authorized related activities requiring “the feeding of employees and transient visitors, lodging of transient visitors and holding of conference assemblies.” In this and most other districts property was permitted to be used for single-family residences, public parks and playgrounds, certain types of farming, and commercial greenhouses and nurseries of a minimum area of ten acres. By special permit, schools and educational institutions, churches, hospitals and nursing homes, cemeteries and public utilities were also permitted. Specifically prohibited were business, commercial or manufacturing uses involving the sale, shipment or production of merchandise and any use involving creation of noise after dark.

The new facility, projected to be used for a 20-year period, is designed to provide a structure containing all or most of the operations carried on in both existing offices, and to house all personnel under one roof. It is also intended to provide adequate parking for both employees and patrons. The objective is to perform all post office functions with much greater efficiency and to provide the public in the entire area with improved mail service.

The planning board, prior to the zoning board hearings, had reviewed the application and made recommendations (to which plaintiff agreed) as to location of the building, additional parking and a change in traffic. That board adopted a resolution in May 1967 approving the proposed project. The zoning board denied the application.

The proofs before the board of adjustment established the need for the new facility, that the public interest would be served thereby, and that the use of the premises for the proposed purpose would be compatible with existing uses, as well as with other uses permitted in the district. My review of those proofs leads me to the conclusion that plaintiff fully satisfied the affirmative and negative requirements of the zoning statute for the granting of the requested variances.

Consequently, the right to erect a facility on its property for use by the United States Government as a post office need not, and should not, rest upon the shifting sands of sovereign immunity. That it need not rest upon such a dubious foundation appears from a review of the evidence on the merits.

It appears also from the nature of these proceedings. The Federal Government is not a party to this action. Nor has it invoked immunity from the local zoning requirements. Plaintiff, a private property owner, not the Federal Government, sought the variances. Upon its property either the Government or its sublessee will erect the substantial structures described in the application. As landlord it will receive from the Government, as tenant, a ground rent for a term of years for the use of the proposed site. As in the case of any other rental, plaintiff, as landlord holding the reversionary interest, will regain control of the leased premises at the expiration of the lease (or its earlier termination), including any buildings remaining thereon. Were it not for a provision in the lease requiring the tenant to pay local taxes, the owner and landlord would be required to assume that burden. Further, the judgment runs in favor of the landlord, the private property owner, not the Federal Government.

FTo one challenges the right of the Federal Government to render itself immune from municipal zoning requirements by purchase or condemnation of the property. That issue is not involved.

The substantive issue which is involved, although somewhat obscured by the manner in which it has been raised, is whether a private owner may invoke immunity from local zoning restrictions by leasing its property to an entity which possesses sovereign immunity but has not, in fact, asserted it. In my judgment, the owner-lessor may not take on the mantle of sovereignty in this fashion. The implications of the majority’s decision to the contrary thus harbor a far-reaching threat to the basic objectives of zoning without any corresponding benefit.

The decision is not confined to the simple question whether a facility on a five-acre parcel, landscaped and designed to harmonize with its environs, should be permitted to be used to fulfill a recognized public need for a post office. Far broader is the scope of the principle which inheres in it.

This determination implicitly permits the lessor, as well as the lessee, to erect any shape or size structure on any lot for any use, irrespective of the duration of the lease, and regardless of whether such use is compatible with other uses in the community ■—• this without any corresponding obligation or commitment on the part of the lessor or the leasing agency as to the manner of such construction or use. The principle adopted necessarily applies to the lease of private property to any of a host of proliferating federal agencies and authorities. Even more important is the likelihood that it is readily susceptible of being applied with equal logic and force to a variety of state agencies and, indeed, to any agency or authority “which occupies a superior position in the governmental hierarchy.” Aviation Services, Inc. v. Board of Adjustment, Hanover Tp., 20 N. J. 275, 282 (1956).

There is no need from a practical standpoint to extend to the lessor who deals with a government agency the same broad immunity to local municipal regulations which that agency itself might exercise. See Carroll v. Board of Adjustment, Jersey City, 15 N. J. Super. 363 (App. Div. 1951); cf. Chicago v. L. J. Sheridan & Co., 18 Ill. App. 2d 57, 151 N. E. 2d 451 (Ct. App. 1958); 2 Anderson, American Law of Zoning § 9.07, at 120 (1968). Nor does Tim v. Long Branch, 135 N. J. L. 549 (E.&A. 1947), support such extension; there the Lanham Act, having been enacted pursuant to the war powers of Congress to remedy an emergency housing shortage, explicitly conferred immunity from local zoning regulations.

The Federal Government here — and for that matter, any agency higher than the municipality in the governmental hierarchy — can readily achieve its proper objectives within the framework of the planning and zoning lavra. Significant on this score is the testimony before the local board of Arthur J. Parsons, National Real Estate Officer under the Postmaster General, to the effect that, although the Government has the power to avoid compliance with any zoning requirements by acquisition of title to the property, only three times in a thousand has this method been used. As he commented, the practice is to have the property developed pursuant to a purchase-lease arrangement under which every consideration is given to local zoning.

Of course, the Government may achieve these objectives by purchasing or condemning the property deemed necessary for the proposed use. In doing so, however, the agency invoking the right of sovereignty must also, by its commitment through ownership, assume responsibility for any erosion of the local zoning scheme and any blight which may result.

When the government agency, however, instead of invoking its sovereignty, elects to lease property from a private person, it acquires a limited right in the property by virtue of and under the authority of the lease which gives it possession. In such case the owner or lessor seeking a use of property not authorized by the zoning regulations, whether the lessee is the Government or a private person, should be required, in the public interest, to obtain whatever variance is required. The property itself should remain subject to local restrictions just as it remains liable for local taxes. If warranted by the public interest, the variance can and should be granted.

In this manner the legitimate planning and zoning interests of the community can readily be accommodated to the objectives of the sovereign government. Both presumably are directed toward the same end of serving the public needs. There is no necessary conflict or friction, nor any reason for thwarting the local community in its efforts to maintain control over the orderly and planned development of the area within its borders. On the other hand, there is a grave danger that those efforts may be frustrated if the lease procedure is sanctioned as a means of escaping all control from legitimate local government requirements. The Post Office Department in this case has taken considerable pains to cooperate with the local government agencies in order that the new facility may have the least possible unfavorable impact upon the community. But local officials ought not be required to assume that all such agencies in the future will implement their plans in the same fashion if not required to do so.

Indeed, the broad principle enunciated by the majority cannot fail to encourage private lessors to invoke governmental immunity through leasing arrangement with state or federal agencies, thereby avoiding local planning considerations and disregarding community sensibilities. Moreover, once the lease has terminated the community is likely to be left with the shell of a structure which can, as experience has only too often demonstrated, serve as the cornerstone for a hardship variance application, the granting of which may perpetuate or even magnify the discordant use. The structure remains in any event, a monument to the absence of cooperation between the community and the superseding governmental entity.

As the court stated in Howard v. Commissioners, 344 U. S. 624, 627 (1953),

*’ * * The fiction of a state within a state can have no validity to prevent the state from exercising its power over the federal areas within its boundaries, so long as there is no interference with the jurisdiction asserted by the Federal Government. The government rights in this dual relationship are not antagonistic. Accommodation and cooperation are their aim. * * *


author: Per Curiam.

text:
    RAYMOND W. MORTON, RICHARD M. SHOFI, AND SOUTHWEST CIVIC ASSOCIATION OF CLARK, A CORPORATION OF THE STATE OF NEW JERSEY, PLAINTIFFS-RESPONDENTS AND CROSS-APPELLANTS, v. MAYOR AND COUNCIL OF THE TOWNSHIP OF CLARK, A MUNICIPAL CORPORATION IN UNION COUNTY, AND THE BUILDING INSPECTOR, DEFENDANTS-APPELLANTS, AND CROSS-RESPONDENTS, AND MABROOK GARDENS, A CORPORATION OF THE STATE OF NEW JERSEY, INTERVENING DEFENDANT-APPELLANT AND CROSS-RESPONDENT. MABROOK GARDENS, A CORPORATION OF THE STATE OF NEW JERSEY, PLAINTIFF-CROSS-RESPONDENT, v. MAYOR AND COUNCIL OF THE TOWNSHIP OF CLARK, A MUNICIPAL CORPORATION IN UNION COUNTY, AND THE BUILDING INSPECTOR, DEFENDANTS-CROSS-APPELLANTS.
    Superior Court of New Jersey Appellate Division
    Argued December 15, 1969
    Decided December 22, 1969.
    Before Judges Goldmann, Lewis and Matthews.

      Mr. Norman A. Kuriz argued the cause for appellant and cross-respondent Mabrook Gardens (Messrs. Levy & Krauss, attorneys).

      Mr. John P. Higgins argued the cause for municipal defendants-cross-respondents (Mr. H. Frank Pettit, on the brief).
   Per Curiam.

We affirm for the reasons stated in Judge EelleUs comprehensive opinion, partially reproduced in 102 N. J. Super. 84 (Law Div. 1968).