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

text:
    STATE OF NEW JERSEY, PLAINTIFF-APPELLANT, v. DANNY JENKINS HOWARD, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued October 16, 1972
    Decided July 23, 1973.

      Before Judges Collester, Leonard and Halpern.

      Mr. Michael H. Stieber, Assistant Prosecutor, argued the cause for appellant (Mr. Joseph P. Lordi, Essex County Prosecutor, attorney).

      Mrs. Mary A. Aurigemma, Assistant Deputy Public Defender, argued the cause for respondent (Mr. Stanley C. Van
      Ness, Public Defender, attorney; Mr. David P. Jacobs, Assistant Deputy Public Defender, of counsel and on the brief).
   The opinion of the court was delivered by

Collester, P. J. A. D.

The State appeals from an order granting defendant’s motion to dismiss an indictment charging him with the unlawful possession of a straight razor in violation of N. J. S. A. 2A:151-41(c).

N. J. 8. A. 2A:151-41, which prohibits the carrying of dangerous weapons without a permit or identification card, provides in pertinent part that any person who carries on or about his clothes or person, or otherwise in his possession, in any public place, “(c) Any dangerous instrument of the hinds hnown as a * * * dagger, dirk, dangerous hnife, or knife as defined in chapter 5 of the laws of 1952 [switchblade knife] * * * is guilty of a high misdemeanor.” (Emphasis added).

The trial judge dismissed the indictment as a matter of law, basing his decision upon the legislative history of N. J. S. A. 2A:151-41, 2A:151-56 and 2A:151-5. He concluded that the Legislature, by deletion of the term “razor” in L. 1922, c. 138, § 1 (the precursor of N. J. S. A. 2A:151-41), intended to remove a straight razor from the list of weapons proscribed under section 41(c) of the statute.

The State contends the trial court erred in so construing the statute. The State argues here, as it did below, that a straight razor is a knife and that the question of whether it is a “dangerous knife,” possession of which in a public place is forbidden by the statute, is a factual issue for determination by the jury and not by the court.

We have carefully reviewed the legislative history of the statutes involved, which have been amended and supplemented many times since the first statute, barring the carrying of concealed weapons, (the source of N. J. S. A. 2A:151-41), was enacted in 1905. That statute, L. 1905, c. 172, made it a misdemeanor for a person to carry certain stated firearms or “any stiletto, dagger or razor or any knife with a blade five inches in length or over concealed in or about his clothes or person.” The act also contained an omnibus clause covering any “other deadly, offensive or dangerous weapon or firearm.”

In 1922 the statute was amended by the enactment of L. 1922, c. 138, § 1. The term “razor” and the phrase “any knife with a blade five inches in length or over” were deleted from the weapons enumerated in the statute and the descriptive term “dangerous knife” was added. The list of the specific weapons proscribed by the statute was preceded by the language “of the kind known as,” which was substituted for the omnibus clause. Subsequent amendments were enacted, none of which is here pertinent except to note that the requirement of concealed possession was eliminated and the degree of the crime was raised from a misdemeanor to a high misdemeanor.

We do not agree with the trial court’s conclusion that retention of the' term “razor” in N. J. S. A. 2A:151-56 and 2A:151-5 (and their predecessors) indicated a legislative intent to remove a straight razor from the weapons prohibited under N. J. S. A. 2A:151-41(c). Each section of the statute has a significantly ^different purpose. N. J. S. A. 2A:151-56, which was first enacted in 1912, incriminates any person who attempts to use unlawfully against another, or carries or possesses with intent to use unlawfully against another, any instrument or weapon enumerated in N. J. S. A. 2A:151-5 or any other dangerous or deadly instrument or weapon. N. J. S. A. 2A:151-5, which was enacted in 1927, provides for the imposition of an additional sentence upon armed criminals who commit or attempt to commit stated crimes when armed with or having in their possession “any firearm * * * or dangerous instrument of any kind, usually known as a * * * dagger, dirk, dangerous knife * * * razor, stiletto * *

In the recent case of State v. Green, 62 N. J. 547 (1973), our Supreme Court was confronted with the same argument. Ill Green each' defendant contended his conviction for possession-of a dangerous knife should be reversed as a matter of .law* They argued that the knives, found in their possession were pocket knives having folding blades' %x/¡ inches in length and were not “dangerous knives” possession of which was forbidden by N. J. S. A. 2A:151-41(c). In construing N. J. S. A. 2A:151-41(c), 2A:151-56 and 2A:151-5 the court said that section 41(c) was intended to prohibit the naked possession of certain concealed weapons and that the offense was to be distinguished from similar crimes where, in addition to possession, there were elements of use, attempted use or an intent to use such weapons. The court pointed out that as to the latter crimes the penalty is not only greater but there attaches to the fact of possession a presumption of intent to use the same in violation of the law.

In State v. Ryan 23 Conn. Sup. 425, 184 A. 2d 183 (App. Div. 1962), where a similar contention was raised, the court held that the fact a razor was specifically included in a statute making it an offense to carry certain weapons with intent to assault another, while it was not specifically mentioned in another statute making it an offense to carry certain weapons without a permit, did not mean that a razor was excluded from the latter statute — that whether the razor possessed by defendant was a weapon within that provision was a question for the jury.

We also disagree with the argument advanced by defendant on this appeal that the purpose of N. J. S. A. 2A:151-41(c) was limited to prohibit the possession of articles designed to be used as weapons per se. In State v. Green, supra, the court held that such a construction of the; statute was too narrow. The court said, “The subject matter of N. J. S. A. 2A:151-41(c) logically and reasonably demonstrates a legislative intent to forbid the possession of a larger category of dangerous instruments than those characterized by defendants as dangerous per se.” (62 N. J. at 560)

It must be conceded that a straight razor is not a dangerous weapon per se since it is a domestic tool used for shaving hair from the face or body. However, it is obvious that such a razor, which consists of a thin blade of steel, having a sharp edge for cutting fastened to a handle, must be included in the generic term of “knife.” May v. State, 110 Ark. 432, 162 S. W. 43, 44 (Sup. Ct. 1913); Harper v. State, 133 Tex. Cr. R. 255, 110 S. W. 2d 67 (Ct. Cr. App. 1937).

In construing N. J. S. A. 2A:151-41, which seeks to prevent the carrying of weapons of certain specified categories and thus to prevent their use for criminal purposes, we have held that the statute does not intend to catalogue all the weapons but merely lists under generic terms the common designation of those prohibited. State v. Green, 116 N. J. Super. 515, 522 (App. Div. 1971), rev'd on other grounds, 62 N. J. 547 (1973), supra; and see, State v. Witcher, 58 N. J. Super. 464, 471 (App. Div. 1959). This is clearly borne out by the language “Any dangerous instrument of the kinds known as,” which precedes the weapons enumerated in section 41(c).

Thus, while a straight razor, which is a specialized type of knife, may be a domestic tool and not a dangerous knife per se when carried for a lawful purpose, that does not mean that a straight razor may not be a lethal weapon and should be excluded as a matter of law from the term “dangerous knife,” the possession of which is prohibited by the statute. A straight razor which is not dangerous per se will be a dangerous knife within the meaning of N. J. S. A. 2A:151-41(c) if the purpose of possession is its unlawful use as a weapon against another person. See State v. Green, supra, 62 N. J. at 560, and State v. Ebron, 122 N. J. Super. 552 (App. Div. 1973).

It is to be noted that courts in other jurisdictions have held, under varying circumstances, that a straight razor is a dangerous weapon. See Williams v. Commonwealth, 304 Ky. 761, 202 S. W. 2d 408, 409 (Ct. App. 1947), and People v. Morris, 8 Mich. App. 688, 155 N. W. 2d 270, 271 (Ct. App. 1967).

The court below indicated that the decision to grant defendant’s motion to dismiss the indictment was based, in part, upon the rule of strict construction applicable to criminal statutes. However, that rule does not prevent a court from reading the statute in relation to the mischief and evil sought to be suppressed, or prevent a court from giving effect to the terms of the statute in accordance with their fair and natural acceptation. State v. Meinken, 10 N. J. 348, 352 (1952). The law does not favor a construction of a penal statute that will aid in its evasion. State v. Hand, 71 N. J. L. 137, 141 (Sup. Ct. 1904). Statutory language must be given a reasonable construction to promote the efficient enforcement of our criminal law, prevent crime and advance the ends of justice. State v. Gibbs, 79 N. J. Super. 315, 323 (App. Div. 1963). Applying these principles to the instant case, we conclude that the trial court’s construction of N. J. S. A. 2A:151-41(c) was contrary to and inconsistent with the intention of the Legislature.

It is a matter of common knowledge that straight razors have been used as weapons for many years in the commission of various crimes. Ho persuasive reason has been advanced to indicate that the Legislature intended to remove straight razors from the statute prohibiting the carrying of concealed weapons when it enacted L. 1933, c. 138, § 1. The deletion of the term “razor” must be considered in light of the circumstances that existed 50 years ago. At that time the use of safety razors for shaving had grown in popularity, a fact which defendant concedes. It seems only logical that the Legislature then deemed it advisable to revise the language of the statute to eliminate safety razors from the list of concealed weapons proscribed therein. As a result the term “razor” together with the phrase “knife with a blade five inches in length or over” were deleted from the statute and replaced by the designation “dangerous knife.”

A straight razor, which had been considered a dangerous weapon before the 1922 revision, clearly could not be considered less dangerous after the revision. In our view the term “razor,” which had been generally known as a “straight razor,” was subsumed in the new designation of “dangerous knife.” To hold otherwise would create an intolerable situation. A nighttime prowler bent upon some criminal activity, with a knife concealed on his person, would be guilty of violating N. J. S. A. 2A:151-41 (e), while another, who had a straight razor so concealed, would go scot-free. We do not believe that such was the intention of the Legislature when it enacted the revision in 1922.

We conclude that the trial court erred in dismissing the indictment as a matter of law. Whether the straight razor found in defendants possession is a dangerous weapon within the meaning of N. J. S. A. 2A:151-41(c) is an issue not to be determined on a motion to dismiss the indictment. It is an issue which must be determined at the trial after evidence is adduced to show whether or not the purpose of defendant’s possession of the straight razor was for unlawful use as a weapon. Cf. State v. Seng, 91 N. J. Super. 50 (App. Div. 1966).

The order dismissing the indictment is reversed and the case is remanded for trial.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    IN THE MATTER OF PROPOSED INCREASED INTRASTATE INDUSTRIAL SAND RATES BY THE CENTRAL RAILROAD COMPANY OF NEW JERSEY, R. D. TIMPANY, TRUSTEE.
    Superior Court of New Jersey Appellate Division
    Argued June 11, 1973
    Decided July 23, 1973.

      Before Judges Lora, Allcorn and Handler.

      Mr. Howard T. Rosen argued the cause for appellants (Rosen and Weiss, attorney; Mr. Walter G. Reinhard, on the brief).

      Mr. J. Edgar McDonald of the New York Bar, argued the cause for respondent (Mr. Richard B. Wachenfeld, attorney).

      Mr. William Gural, Deputy Attorney General, argued the cause for the Board of Public Utility Commissioners (Mr. George F. Kugler, Jr., Attorney General, attorney).
   Per Curiam.

As we earlier observed in directing the remand of this cause for findings, “in the performance of its rate-fixing function the Board [of Public Utility Commissioners] is bound by one over-riding statutory direction and consideration —■ namely, that the rates fixed be ‘just and reasonable.’ ” Equally fundamental is the proposition, universally accepted, that the “justness and reasonableness of a particular rate * * * can only be determined after an examination of a company’s property valuation which constitutes its rate base; its expenses, including income taxes and and an allowance for depreciation; and the rate of return developed by relating its income to the rate base.” Public Service Coord. Transport v. State, 5 N. J. 196, 216 (1950).

Thus it is that the sole authority of the Board to determine the' justness and reasonableness of an existing or proposed rate without finding a rate base is restricted to the three exceptional and extraordinary situations spelled out by the Legislature in N. J. S. A. 48:2-21.2. And thus it is that the authority granted to the Board to “negotiate * * * with * * * [the] public utility for an adjustment of the individual rates,” must be confined to interim relief pending a proceeding to determine the justness and reasonableness of an existing or proposed rate, N. J. S. A. 48:2-21.1; In re N. J. Power & Light Co., 15 N. J. 82, 96-97 (1954). Were N. J. S. A. 48:2-21.1 to be otherwise construed, rates could be negotiated by the utility with the Board on a permanent basis, completely without regard to the resultant rate of return to the utility and absent any other legislative standards indispensable to a proper delegation of the rate-making power.

In the present case the Board has approved the new rates which, admittedly, were fixed by way of negotiation with the carrier, on a permanent rather than on an interim basis. Lacking such authority, the orders from which the appeals are taken cannot be sustained under N. J. S. A. 48:2-21.1. Compare, Driscoll v. Edison Light & Power Co., 307 U. S. 104, 59 S. Ct. 715, 83 L. Ed. 1134 (1938).

Neither may the orders be justified by virtue of the authority delegated to the Board under N. J. S. A. 48:2—21, generally to fix, modify, approve and disapprove rates. For, although the Board concluded that the “proposed increased rates * * * are just and reasonable,” the conclusion is founded upon considerations other than a fair rate of return calculated by relating projected income (including that reasonably to be anticipated from the proposed increase) to the carrier’s rate base. We do not consider fully allocated costs to be an acceptable substitute. A “finding of fact as to rate base * * *is the foundation stone of a rate determination,” and without it there is nothing to support a rate approved or fixed under N. J. S. A. 48:2-21. Central R. Co. of N. J. v. Dept. of Public Utilities, 7 N. J. 247, 263 (1951).

Except for the authority granted to the Board by N. J. S. A. 48:2—21 and N. J. S. A. 48:2—21.1, the single remaining grant of authority to the Board to fix and approve rates here applicable is found in N. J. S. A. 48:2-21.2(1) (a). It is there provided:

In arriving at any determination as to the justness or reasonableness of any existing rate, fare or charge, or in prescribing a just and reasonable rate, fare or charge, the board shall not be hound:
1. To find a rate base, if it determines that (a) the applicable operating expenses plus depreciation and taxes of conducting the business, for which the rate, fare or charge is established, computed on the basis of the 12 months next preceding the month in which the proceeding is initiated, exceeds the revenue from said operation, during said period, under the existing rates, fares and charges and that the revenue under the piroposed increased rates, fares or charges will not exceed such operating expenses, depreciation and taxes, * *.

A reading of the Board determinations reveals, here again, no findings such as would justify approval of the proposed rates under the terms of the above-quoted section of the statute. Even assuming the soundness of the basic figures adopted by the Board, it is conceded by the Board that the average revenue per car at the proposed rates would be well in excess of out-of-pocket costs. Indeed, the Board further concedes that the revenue per car at the existing (old) rates exceeds out-of-pocket costs in the case of shipments to three of the five shipping destinations — and the figures demonstrate that the aggregate per car revenue exceeds the aggregate per car out-of-pocket costs for all five destinations.

We conclude, therefore, that the action of the- Board in approving and accepting the proposed increased rates on industrial sand was without legal basis or authority, and for this reason must be set aside. In so concluding we are not unmindful of nor unsympathetic to the difficulties and problems confronting many rail carriers, including The Central Railroad of New Jersey. Notwithstanding, such predicament does not and cannot justify the- fixing or approval of freight or other rates without regard to the standards, long extant, by which the competing interests of the railroad and the public are served. Cf., Interstate Commerce Comm’n v. Union Pacific Railroad, 222 U. S. 541, 549, 32 S. Ct. 108, 56 L. Ed. 308 (1911).

Accordingly, the action of the Board of Public Utility Commissioners is set aside and the cause is remanded to the Board to enter an order disapproving the increases in rates proposed, N. J. S. A. 48:2-46; and the Clerk of the Superior Court is authorized to pay to each of the shippers who have made deposits with the Clerk pursuant to the direction contained in the opinion of this court in this matter, filed Eebruary 22, 1913, the respective sum or sums deposited by said shipper, upon application therefor.


text:
    BRUCE G. M. DIESEL, INC., PLAINTIFF-RESPONDENT, v. ASSOCIATES FINANCIAL SERVICES CO., INC., DEFENDANT-APPELLANT, AND WILLIE J. BROWN, DEFENDANT.
    Superior Court of New Jersey Appellate Division
    Submitted November 27, 1972
    Decided July 24, 1973.

      Before Judges Fritz, Lynch and Demos.

      Messrs. Kramer and Kramer, attorneys for appellant (Mr. Milton S. Kramer, on the brief).

      Messrs. Winne & Banta, attorneys for respondent (Mr. John P. Paxton, on the brief).
   Per Curiam.

The facts are not in dispute. They appear in the opinion of the trial court, 118 N. J. Super. 528 (1972).

As there noted, the sole and determinative issue is whether the only lien of one repairing a motor vehicle is that afforded by the Garage Keeper’s Lien Act, N. J. S. A. 2A:44-21, or whether a garageman has also available the common law artisan’s lien. The question is of substantial importance in eases where, as here, there is a perfected security interest, because the former lien is expressly subordinated to such an interest by the statute', while the latter lien is unaffected. Ferrante v. Foley, 49 N. J. 432 (1967), National State Bank v. Rapp et al., 49 N. J. 457 (1967).

The court below held that the Garage Keeper’s Lien did not exclude the common law lien and that the “common law artisan lien on a motor vehicle * * * survives the enactment and amendments to N. J. S. A. 2A:4A-21.” 118 N. J. Super. at 531. We disagree with this conclusion.

' To the extent that the trial court opined, correctly, that statutes in derogation of the common law are to be strictly construed, we point out that the statute in question is quite clear in its reference and applicability to “A garage keeper who shall * * * repair a motor vehicle * * This same clarity obviates the need for statutory interpretation, since the meaning of the statute is abundantly apparent on its face. Duke Power Co. v. Patten, 20 N. J. 42, 49 (1955). And this without consideration for the fact that when the statute was first passed in 1915 (L. 1915, c. 312) there was no provision subordinating its effect to a security interest. Accordingly, it was not in opposition to the common law, but indeed, enlarged the rights visited by the lien of the common law to which the motor vehicle was not known. See B. C. S. Corp. v. Frick, 19 N. J. Misc. 129, 130 (D. Ct. 1941). It was only by L. 1925, c. 33 that this lien was later subordinated to the lien of conditional vendors or chattel mortgagees, and by L. 1961, c. 121, § 4 subordinated to commercial code security interests.

Beyond this, we think that Ferrante v. Foley, supra, was too readily distinguished by the judge below. Ferrante specifically says, “For, if it is a motor vehicle, defendant has only a garage keeper’s lien that is inferior to plaintiff’s [the security interest lienor].” 49 N. J. at 438. Lest this be thought to be obiter dictum, we note that in Ferrante the court went to substantial lengths to conclude that a bulldozer was not a motor vehicle. Such a determination would have been unnecessary if the Garage Keeper’s Lien Act was not exclusive and in lieu of the common law lien. See also Rapp, supra, where the Appellate Division (90 N. J. Super. 300 (1966)) was reversed, not on the basis of its determination that the garage keeper’s lien replaced the common law lien (citing B. C. S. Corp. v. Frick, supra), but significantly, on the Ferrante ground that a bulldozer is not a motor vehicle.

Were we not bound by Ferrante and Rapp, as we believe ourselves to be, we would reach the same result on the plain language of the statute.

Reversed and remanded for entry of judgment against plaintiff in favor of defendant Associates Financial Services Co., Inc.


author: Fritz, J. A. D.

text:
    IN THE MATTER OF THE ESTATE OF WILHELMINA SCHUHMANN, ALSO KNOWN AS BILLIE SCHUHMANN, DECEASED.
    Superior Court of New Jersey Appellate Division
    Argued April 2, 1973
    Decided July 30, 1973.

      Before Judges Fritz, Lynch and Trautwein.

      Mr. Harrison F. Durand argued the cause for appellant Philip Schuhmann (Messrs. Durand, Twombly & Imbriaco, of counsel; Mr. Edwin P. Gordon, attorney).

      Mr. Robert B. Silverman argued the cause for respondent Joseph G. Boratto (Messrs. Gertner & Silverman, of counsel; Messrs. Boratto & Silverman, attorneys).
   The opinion of the court was delivered by

Fritz, J. A. D.

This appeal involves a contest over a decedent’s estate.

'Wilhelmina Schuhmann died after having executed a common or joint will with her husband, Christian J. Schuhmann, who predeceased her. This will, executed June 21, 1967, provided reciprocally in its first paragraph for a bequest of all the estate of the first to die to the survivor. This paragraph also appointed the survivor to he the executor. The second paragraph provided for the contingency of a common disaster by specific bequests on a percentage basis to particular heirs in each of two classes, one class of which had some sort of affinity with Christian in particular, and the other with Wilhelmina. Each class was to receive an aggregate of 50% of the estate. Only the specified heirs could take; any who predeceased surrendered his inheritance to an equal division among the taking members of that class. The appointment of an executor in the event of this contingency was also accomplished. The final paragraph simply directed cremation.

Christian died December 11, 1910, survived by Wilhelmina. The will was admitted to probate and letters testamentary were issued to Wilhelmina. On June 3, 1971 Wilhelmina died of a self-inflicted gunshot wound, without having executed a new will. Some emphasis is here placed by appellant’s argument on the undisputed fact that on April 19, 1971 Mrs. Schuhmann signed the following typewritten note :

April 19, 1971
In case of my death, before making up a new Will and Testament, I hereby state, that the second part of my deceased husband’s CHRISTIAN J. SCHUHMANN’S Will and Testament, to he used in case of common disaster, shall go into effect, as to the distribution of all of my assets. This is to take the place of a new Will and Testament, until such time, when I shall be able to make up a new Will.
/s/ Billie Schuhmann
BILLIE SCHUHMANN

It is appropriate to observe here and now that this writing is unwitnessed and does not satisfy statutory requirements for a testamentary devise.

Nine days after Wilhelmina’s death Manfred gitzmann, a beneficiary of the will in the class relating to Wilhelmina, said to be a nephew and allegedly her sole heir and next of kin, in an instrument asserting intestacy as to Wilhelmina, renounced his “right and claim to administration” in favor of one Joseph G. Boratto. Inconsistently enough, considering the averment of intestacy, Boratto presented the June 21, 1961 will to the surrogate for probate and asked that letters of administration with the will annexed be issued to him. The surrogate denied probate on the ground that “the executor and sole legatte [sic] named in the Last Will and Testament of the above named decedent, has predeceased the Testatrix having died on June 21st, 1967 [sic; this is the date of the will] thereby making the will of no effect.”

The same day Boratto filed a complaint alleging intestacy (“That your plaintiff, after diligent search, has not been able to discover that said deceased left any Last Will and Testament; * * *” — an egregious misstatement, to say the least, the avoidance of which might have led to an earlier straightening out of this procedural morass), asserting that Manfred Sitzmann was the only next of kin, and seeking the issuance of letters of administration. And on the same day those letters were issued by the surrogate.

Subsequently, Philip Schuhmann, brother of Christian and a beneficiary of the will in the class relating to him, applied to the County Court to vacate the surrogate’s aforedescribed actions. A motion for summary judgment by Boratto joined issues, and on the basis of affidavits, briefs, and oral argument, the County Court granted this motion. The will was again denied probate, and the surrogate’s judgments remained undiminished.

After the opinion below Schuhmann moved on affidavit for relief under R. 1:7-4 (to amend or add to the court’s findings) and R. 4 :50-1. The motion was denied.

This appeal from the whole of the judgment and the determination on the motion eventuated.

"We are satisfied that the result achieved by the judgment was substantially correct, although the procedural errors are glaring, aad the County Court simply misread the second paragraph of the will.

First of all, the will should have been admitted to probate despite the fact that intervening circumstances may have negated the effectiveness of everything therein except its clear revocation of prior wills and its direction for cremation. Apparently the writing complied in all respects with the requirements of N. J. S. A. 3A:3-2. No suggestion before the surrogate, the County Court, or here is to the contrary. No caveat was filed. No doubt is apparent on the face of the will. There was and is no allegation of fraud, undue influence, lack of testamentary capacity, or mistake. No dispute had arisen in the surrogate’s court, nor did the surrogate have cause to certify the matter as one of doubt or difficulty in the circumstances then existing. The testatrix is dead and died a resident of this State. Under such circumstances, a will is entitled to probate. In re Gluckman’s Will, 87 N. J. Eq. 638 (E. & A. 1917); cf. R. 4:84-1(d). In re Davis Will, 182 N. Y. 468, 75 N. E. 530 (Ct. App. 1905); see In re Sapery, 28 N. J. 599 (1959). The fact that a testa mentary instrument properly executed is or may be in large measure inoperative, as here, is not a valid ground for refusing probate. 3 Page on Wills Bowe-Parker ed. 30, § 26.12.

The surrogate’s court is one of limited and special jurisdiction. Its jurisdiction is purely statutory, extending to the probate of wills, the granting of letters of administration, and to certain other statutory functions. Mellor v. Kaighn, 89 N. J. L. 543 (E. & A. 1916); 7 N. J. Practice (Clapp, Wills and Administration), § 1910. The surrogate lacks even the power to determine questions arising within the sphere of his responsibility. N. J. S. A. 3A:2-5; In re Watson, 35 N. J. 402, 409 (1961). There is no doubt at all that the surrogate may not undertake to construe a will. For the surrogate here to deny probate, not on the ground of a question relating to the validity of the instrument or its execution but on the basis of his concept of an asserted intestacy, is for the surrogate to arrogate to himself a power of construction exceeding the limited power which is his. 5 N. J. Practice (Clapp, Wills and Administration), § 116.

When the surrogate failed to admit the will to probate, the County Court should have rectified that error before proceeding further. The County Court 'had at least a reviewing jurisdiction under N. J. S. A. 3A :2-3.

But these errors and the procedural technicalities and niceties which they have inspired in the argument to us and in the foregoing discourse “may safely and should justly be passed by here” toward the end of a determination of the fully submitted merits. In re Watson, supra, 35 N. J. at 407-408.

We turn to those merits. The court below found the will to reveal on its face “an intention not to provide for disposition of the joint estate by the survivor.” In effect, the judgment determines that an intestacy resulted. We agree.

The thrust of appellant’s argument concerns itself with an averment of the doctrine of probable intent as viable in New Jersey estate law, an assertion of his right to demonstrate the probable intention of the testatrix, and an insistence that an intention is manifested in the will that the estate of the survivor should be distributed pursuant to the common disaster formula which appeared in the will.

We have no doubt about the correctness of the first two postulates. There is no question at all that proper construction of a will involves concern for and giving effect to the probable intent of the testator. Fidelity Union Trust Co. v. Robert, 36 N. J. 561 (1962). And in that effort we are reaching out in a “less confined approach,” as Justice Hall says in his dissent in In re Cook, 44 N. J. 1, 11 (1965). He continues:

The whole document [the will] is now perhaps more minutely dissected and extrinsic evidence of surrounding circumstances, before and sometimes even after execution, more readily received. [IMd.]

The indulgence of this reach is demonstrated by a willingness even to ascribe to the testator impulses which are common to human nature. In re Conway, 50 N. J. 525, 527 (1967). The extensive perimeters of that to be considered in the search for the intent were recently carefully described in Wilson v. Flowers, 58 N. J. 250 (1971), where it is suggested that extrinsic evidence may be admitted to show that an ambiguity actually exists.

But none of this avails appellant here, for no doubt at all appears from the face of the will; the extrinsic evidence which does appear — the note of April 19, 1971 — confirms the unambiguous nature of the instrument; and the evidence offered, but properly refused admission, serves not to create and then explain an ambiguity in the will, but at best only demonstrates what Wilhelmina Schuhmann might have been inclined to do and why.

It must not be forgotten that the effort is not to divine that which the decedent intended to do> with his estate. Rather, the only proper effort is to ascertain such an intent as it is competently expressed hy the testator in a testamentary instrument which satisfies the statute. Even the generosity of Wilson v. Flowers, supra, limits itself to circumstances where doubt exists or can be created in relation to the expressions of the testamentary instrument, and extends the definition of ‘latent ambiguities” only to those situations where the words of the will could mean different things. 58 N. J. at 262.

In other words, the intent, which has quite properly assumed such a prodigious importance, must be that of the testator at the time of the execution of the will as evidenced to some extent by the writing. In re Klein, 36 N. J. Super. 407 (App. Div. 1955). While the cases cited above suggest that we will construct ambiguity from extrinsic circumstances, if necessary and possible, in order to satisfy this necessity for an expression in the testamentary instrument, they do not suggest giving effect to an intent unexpressed in a writing which satisfies the statute. To hold otherwise would be to disregard the ancient and sound policies underlying the statute of wills. A contrary philosophy would promote fraud, reduce certainty and predictability almost to nothingness, and encourage litigation to the wasting of decedents’ estates.

The purpose correctly to be served is to effect the testator’s intention where it has been expressed less than perfectly. It is not to effect a suppositious, unexpressed intention, no matter how logically and rationally that intention appears, nor how convinced we are that, had the testator the power to do it all over again, he would have done it a different way. In re Klein, supra.

That there was no intent at the time of the making of the will in question to direct a disposition pursuant to the common disaster contingency provision except in the event of a common disaster, is evident on the face of the will and from the extrinsic evidence. Pirst, the will expressly defines the common disaster contingency, both by the generic term and by the imposition of a conclusive presumption. Then it just as expressly declares null and void such a clause in any other event. Secondly, the note of April 19, 1971 is an express acknowledgement by Wilhelmina of the failure of disposition in her will, for the letter itself directs a disposition until there is an opportunity for her to execute “a new Will and Testament.” Particularly since the disposition proposed in that letter is the same as that of the will, we can be certain she knew that such a distribution of the survivor’s estate was not the intention at the, time of the execution of the will. We have no doubt that her intention in April 1971 was a disposition as in the common disaster clause. But the letter did not satisfy the statute. Por us to effectuate that intent by indulging a total fiction in terms of “construing” a will the meaning of which was perfectly plain, would be for us to legislate the statute of wills out of existence.

The evidence which is offered to show probable intent was properly refused admittance. As noted above, there was no room for construction. Secondly, it appears designed to show Wilhelmina’s desires, rather than to demonstrate an expression of those desires in the will.

We agree with the court below, and here adjudge, that an intestacy exists. We announce this determination with an awareness of, and respect for, the sound rule which presumes that one who would make a will would not intend an intestacy. But as we said in In re Schmidt, 46 N. J. Super. 369, 381 (App. Div. 1957), “It is not our function to make a will for the testator, but to construe the one he made.” In Montclair Trust Company v. Lupher, 44 N. J. Super. 408 (App. Div. 1957), we did not hesitate to declare an intestacy in a situation almost precisely like the one before us now except that two (reciprocal) wills were involved. There the testator (who was a lawyer), like Wilhelmina here, simply did not think of the contingency which later occurred. In Glover v. Reynolds, 135 N. J. Eq. 113 (Ch. 1944), aff’d o.b. 136 N. J. Eq. 116 (E. & A. 1945), the same testamentary situation existed and the same arguments were made. The court held the will “inoperative to pass any of the testatrix’ estate.” Darpino v. D’Arpino, 73 N. J. Super. 262 (App. Div. 1962), is distinguishable. There was no express nullification in the will of the dispositive clause in the event the deaths did not result from a common disaster. There was no. practical interpretation by the testator comparable to Wilhelmina’s note of April 19, 1971, here.

The County Court, in denying probate and vacating appellant’s show cause order, in effect continued and sanctioned the appointment of the administrator. As in In re Watson, supra, we have concluded that the interests of justice will best be served by the continuance of the administrator, with leave, however, to any interested persons to apply for the designation of a different administrator or such other relief as may be appropriate.

The judgment is modified to conform to the foregoing. No costs.

       We are not certain whether this motion was served before or after the actual entry of judgment. The opinion below, which was written, is dated May 18, 1972, and said to have been filed on that date. The “order,” i. e., judgment, is dated June 19, 1972 and said to have been filed that date. Appellant’s brief claims that Schuhmann “applied” to the court for the relief sought on June 14, 1972. But his appendix shows the filing date of both the notice of motion and the affidavit to be June 29, 1972, although each is dated June 14, 1972. Additionally, an exchange of correspondence regarding the form of the judgment suggests a fairly substantial disregard on the part of everyone concerned for the rules of procedure generally and B. 4 :42-l in particular.

       As a consequence there is a great deal of material in appellant’s brief purporting to show that which lie would have advanced had he been permitted. Respondent moved to strike this as outside the record. AYe reserved decision on the motion. We think appellant is entitled to demonstrate that which he would have shown in order that the ruling below may be reviewed in that light. But the correct way to do this is by an offer below — in this case by incorporating the details to be proved in the affidavit on the motion — in order that the other party may have a fair chance to meet the proofs head on. There could then be no complaint with respect to the extra-record nature of the substance. But in view of our decision, it has become unnecessary to decide the motion in any event.

       We do not suggest that total inoperability should produce a different result. 3 Page on Wills (Bowe-Parker ed.) 30, § 26.12. We need not decide that issue here where there was testamentary purpose, if only in the revocation of prior wills and the direction for cremation.


text:
    M. A. STEPHEN CONSTRUCTION CO., INC., A CORPORATION OF THE STATE OF NEW JERSEY, PLAINTIFF-APPELLANT, CROSS-RESPONDENT, AND SARK KAVOOKJIAN, PLAINTIFF, v. BOROUGH OF RUMSON, A MUNICIPAL CORPORATION OF THE COUNTY OF MONMOUTH, STATE OF NEW JERSEY, DEFENDANT-RESPONDENT, CROSS-APPELLANT. CARDELL, INC., A CORPORATION OF THE STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. THE TOWNSHIP OF MADISON, A MUNICIPAL CORPORATION IN THE COUNTY OF MIDDLESEX, STATE OF NEW JERSEY, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued April 23, 1973
    Decided July 30, 1973.

      Before Judges Lora, Allcorn and Handler.

      Mr. Stewart M. Hutt argued the cause for appellant M. A. Stephen Construction Co., Inc. (Messrs. Hutt and Berkow, attorneys; Mr. Jay M. Hollander, on the brief).

      Mr. Richard F. Plechner argued the cause for appellant Township of Madison (Mr. Robert G. Hampson, on the brief).

      Mr. William R. Blair argued the cause for respondent Borough of Rumson (Messrs. Parsons, Canzona, Blair and Warren, attorneys).

      Mr. Jay M. Hollander argued the cause for the respondent Cardell, Inc. (Messrs. Hutt and Berkow, attorneys).
   Per Curiam.

Both of these appeals turn on the issue of whether the lowest responsible bidder for public work, whose bid was improperly rejected and the contract awarded to another bidder by the municipal governing body, is entitled to recover damages against the municipality. Accordingly, they will be treated in a single opinion.

In Rumson the borough on October 22, 1970 received bids for the construction of a portion of its sanitary sewer systern in response to advertisement. Seven bids were received, of which that of Stephen was the lowest. On November 25, 1970 the governing body formally rejected all of the bids and directed the borough clerk to readvertise for new bids. The present action was commenced on December 10, 1970, and on January 5, 1971 the trial court entered summary judgment in favor of the municipality. On appeal that judgment was reversed and the cause remanded for plenary trial to determine whether, in rejecting all of the bids, the municipality had acted in good faith. 117 N. J. Super. 431 (App. Div. 1971).

In the interim the borough received the bids which had been solicited by the readvertisement. The plaintiff submitted no bid on this occasion, although invited to do so. The contract was awarded to another contractor and, Stephen not having pursued an application for a stay, the work was substantially completed prior to the argument on the first appeal. On the remand the trial court determined that the rejection of all the October 22, 1970 bids was arbitrary and wrongful, but that inasmuch as the work had been completely performed, no “legal remedies are now available” to Stephen •—■ the judge having earlier granted the motion of the borough to strike the issue of damage from the complaint and the pretrial order, on the ground that Stephen was “not entitled to damages as a matter of law.” 118 N. J. Super. 523, 524 (Law Div. 1972).

In Madison bids were solicited and received on October 10, 1968 for resurfacing of streets. Although Cardell was the low bidder, because of errors in calculation by Cardell the totals did not so indicate and the township governing body awarded the contract to the next lowest , bidder. Thereupon Cardell commenced an action to set aside the award and to compel the township to award the contract to it. Although unsuccessful in the Law Division and the Appellate Division, Cardell ultimately prevailed in that action in the Supreme Court. Cardell, Inc. v. Madison Tp., 105 N. J. Super. 594 (Law Div. 1969), aff’d 105 N. J. Super. 604 (App. Div. 1969), rev'd 54 N. J. 151 (1969).

Following some delay the contract award to the second lowest bidder was vacated and the township awarded the contract to Cardell. A portion of the included work having previously been performed by the second lowest bidder (apparently pursuant to a resolution adopted by the governing body in spite of a stay of the Law Division judgment), Cardell undertook performance of the balance of the work and completed it in September 1970.

The present action was commenced by Cardell against the township in May 1971, seeking damages “for increased costs to plaintiff due to delay in awarding and executing the contract; [and] loss of anticipated profits” for that portion of the work under the contract performed by the second lowest bidder. There is also included a claim for $10,000 “on a certain book account” and “upon an account stated,” the nature of which is not stated.

Before trial was had the township moved “for an order of summary judgment dismissing the plaintiff’s complaint for consequential damages.” The motion was denied. The present appeal was taken from said denial, upon leave granted by this court.

We are thus brought to the single issue in each of these appeals: Does the wrongful rejection of the bid of the lowest responsible bidder by a municipality render the municipality liable in damages to the bidder — whether for loss of profits, increased costs of performance, costs of preparing and submittting the bid, or for other alleged consequential losses ?

The contractor-plaintiffs assert that where a public agency is required to advertise for bids for the performance of work or furnishing of materials and supplies, and to award contracts to the lowest responsible bidder, the responsible bidder who submits the lowest proposal in response to an invitation thereby establishes or creates in himself a right to the award of the contract, which right is breached by the wrongful rejection of his bid; and where, through no fault of the low .bidder, the only adequate remedy for the wrongful breach of such right is damages, the municipality is liable for such damages. Contractor-plaintiffs misconceive both the nature of the relationship between the bidder and the party or agency soliciting bids, as well as the purpose and effect of the laws governing the letting of contracts by public agencies.

It is a fundamental of contract law that a bid for the performance of work or for the furnishing of materials submitted in response to a solicitation therefor constitutes no more than an offer. Unless and until there is an acceptance of that offer, no contract comes into being. 1 Williston on Contracts (3d ed. 1957), § 31 at 82. Thus, in the area of private business, when bids are submitted by various bidders in response to invitation, the person soliciting the bids has the unrestricted power to accept such one of said bids as he may wish, in his complete and absolute discretion. As between him and the bidders he may accept the highest bid, an intermediate bid, the lowest bid, or none of them; and lie may select the bid submitted by the bidder who may be the most or the least responsible, or somewhere in between — all without breaching any right of or any duty or obligation owing to the bidders, In short, the submission of a bid, without more, creates no rights in the bidder. 1 Williston on Contracts, supra.

The same fundamental of the law of contracts applies equally in the public sector. Submission of a bid for public work in response to an invitation likewise constitutes no more than an offer, and it does not and cannot ripen into a contract unless and until there is an acceptance of that offer by the appropriate public authority. Compare Trap Rock Industries, Inc. v. Kohl, 59 N. J. 471, 478 (1971), cert. den. 405 U. S. 1065, 92 S. Ct. 1500, 31 L. Ed. 2d 796 (1972). The single circumstance that the public official acts in a fiduciary capacity for the benefit of the members of the public whom he represents and, as such, owes them the common law obligation of exercising his discretion honestly and in good faith, or may by statute be directed to make his award to the lowest responsible bidder or to the responsible bidder whose bid is most advantageous to the public authority, in no way changes the basic rule or the nature or extent of the correlative rights and duties as between a bidder and the solicitor of the bid. Por, that obligation is imposed for the public good, not for the benefit of the bidder. Murray v. Bayonne, 73 N. J. L. 313 (Sup. Ct. 1906); Peter’s Garage v. Burlington, 121 N. J. L. 523 (Sup. Ct. 1939), aff'd 123 N. J. L. 227 (E. & A. 1939); Hillside Tp. v. Sternin, 25 N. J. 317 (1957); Commercial Clean Corp. v. Sullivan, 47 N. J. 539, 546 (1966).

In sum, and whatever may be the specfics of the duty owing by a public official in a given case to the members of the public to accept the bid proposal which best serves the- public interest, that duty by its very nature runs to the members of the public, and to them alone. It does not run to the bidders, and does not create any right or rights in the bidders. As stated in Hillside Tp. v. Sternin, supra:

Por many years our statutory law has required contracts for the performance of public work ... to be let upon competitive bidding solicited through public advertisement. * * * The purpose is to secure competition and to guard against favoritism, improvidence, extravagance and corruption. Statutes directed toward these ends are for the benefit of the taxpayers and not the bidders; they should be construed with sole reference to the public good. * * * [25 N. J. at 322]

Accord, Talbot Paving Co. v. City of Detroit, 109 Mich. 657, 67 N. W. 979 (Sup. Ct. 1896); Day v. City of Beatrice, 169 Neb. 858, 101 N. W. 2d 481 (Sup. Ct. 1960); Molloy v. City of New Rochelle, 198 N. Y. 402, 92 N. E. 94 (Ct. App. 1910); Somers Construction Co. v. Board of Education, 198 F. Supp. 732 (D. N. J. 1956); 10 McQuillin, Municipal Corporations (3d ed. 1966), § 29.86; 64 Am. Jur. 2d, Public Works and Contracts, §§ 82, 86.

It is true that, as the contracto-r-plaintiffs point out, a bidder claiming to be entitled to the award of a contract for public work has long been held to have sufficient standing to challenge tbei rejection of his bid or the letting of the contract to another bidder, and to compel the award of the contract to him, McGovern v. Trenton, 60 N. J. L. 402 (Sup. Ct. 1897). But such standing was granted simply and solely in order that the- public interest might be served by compelling the lax or erring public official to properly perform his public trust. It was not thereby intended to create or establish in the bidder entitled to the award of the contract a right which, if violated, would render the public agency liable in damages to the bidder.

If ever there had been any doubt on this score, it was resolved by our Supreme Court in Trap Rock Industries, Inc. v. Kohl, supra:

It, of course, serves the public interest to permit suits to enforce the policy of these [competitive bidding] statutes. To that end, a taxpayer may sue. So, too, may a bidder who claims to be entitled to the award. And to the same end, the low bidder is entitled to be heard by the public authority before his bid is rejected. * * * The low bidder is sometimes said to have acquired a “status.” That he has an interest of some character which will support a claim to be heard cannot be questioned. The point to be stressed is that the interest, whatever its dimensions, is conferred upon him to the end that the public will obtain all that is due it in the procurement process, rather than for his individual aggrandizement. * * * [59 N. J. at 479-480]

That same philosophy was expressed in Commercial Clean Corp. v. Sullivan, 47 N. J. 539 (1966). There, a low bidder brought suit to review the action of the State Director of Purchase in rejecting plaintiff’s bid, under a statute which directed that the award should be made to the “responsible bidder whose bid * * * will be most advantageous to the State, price and other factors considered.” The court there said:

It should be noted that appellant quite properly makes no claim for damages based upon the alleged improper failure to award it the contract. Submission of the lowest bid in answer to an advertisement for bids by the State for public work cannot be the basis of a claim for damages based upon the failure or refusal to accept such bid. * * * [at 546]

Nor should it be overlooked that, to allow the lowest responsible: bidder to recover damages not only would violate and run counter to sound and long established principles of law, but also would invert the very policy and reasons which gave rise to the obligation of the public official to accept the bid proposal which best serves the public interest. Thus, ivhere a public authority improperly rejects the lowest bid and awards the contract to the next lowest bidder, who performs the contract work before the ultimate resolution of the legal propriety of the rejection, to permit the low bidder to recover damages would simply twice penalize the public. A “disobedience of the provisions of the statute will make the [public authority] pay the difference between the lowest bid and the bid for which the contract is made, and also the profit that the lowest responsible bidder would have made if the statute had not been violated.” Molloy v. City of New Rochelle, 198 N. Y. 402, 407, 92 N. E. 94, 96 (Ct. App. 1910).

Lastly, the contractor-plaintiffs suggest that just as “our Supreme Court abolished the obsolete, unjust and archaic idea of a state’s sovereign immunity from suit upon an express contract,” so should there be abolished “any concept that a wronged bidder should not receive monetary damages.” Quite aside from the obvious fact that, in law, it is the public which is “wronged” and not the bidder, the two propositions are not equatable. What the contractor-plaintiffs overlook is that the narrowing or elimination of the doctrine of sovereign immunity both in contract and in tort simply imposes upon the sovereign and its agencies the same or similar responsibilities and liabilities as those to which private persons always have been subject — a grant of parity, so to speak. To create in favor of the low bidder for public work, whose bid was improperly rejected, a cause of action for damages against the State or its agencies, would be to prefer the bidder for public work over the: bidder for private work, the latter having no such right of action — creating inequality, where parity now exists.

It is our conclusion, therefore, that neither of the contractor-plaintiffs is entitled to the recovery, of any damages against the respective municipalities by reason of the rejection of their bids, even assuming such rejections to have been in violation of N. J. S. A. 40:50-1. This disposition makes it unnecessary to pass upon the issue of the propriety of the rejection by the Borough of Eumson of all bids originally submitted, raised by the cross-appeal of the borough.

Accordingly, the judgment of the Law Division, Monmouth County, in the case of M. A. Stephen Construction Co., Inc. v. Rumson, is affirmed; and the judgment of the Law Division, Middlesex County, in the case of Cardell, Inc. v. Madison Tp. is reversed, and the cause is remanded with directions to enter judgment in favor of the defendant township on counts 1, 2 and 3 of the complaint, as well as on counts 4 and 5 if the claims for damage therein asserted arise out of the rejection of the bid of Cardell, Inc.

       The Law Division opinion is dated March 13, 1969. A resolution authorizing execution of the contract with the second lowest bidder was adopted March 19, 1969. The order of the Appellate Division staying “performance and enforcement” of the Law Division judgment was dated April 3, 1969. The township governing body on April 7, 1969 adopted a resolution instructing “the appropriate municipal officials to proceed with the first phase of said road resurfacing program.”

       It should be noted that the controlling statute in the present causes (N. J. S. A. 40:50-1) has been repealed and supplanted by an entirely new enactment, the Local Public Contracts Law (N. J. S. A. 40A:11-1 et seq.), effective July 1, 1971. Except for the section dealing with awards of contracts for construction, alteration or repairs of public buildings (N. J. S. A. 40A:11-16), the new law seemingly sets forth no standards by which the affected public agencies are to be guided in making contract awards.

       We are not unaware of the case of Cardell, Inc. v. Woodbridge Tp., 115 N. J. Super. 442 (App. Div. 1971), certif. den. 60 N. J. 236 (1972). As observed by the trial judge below in his opinion in M. A. Stephen Construction Co. v. Rumson, 118 N. J. Super. 523, 527 (Law Div. 1972), no issue as to the liability of the municipality for damages was there raised or passed upon.


author: Kimmelman, J. S. C.

text:
    JAMES J. BONAFIELD, PLAINTIFF, v. WILLIAM T. CAHILL, INDIVIDUALLY AND AS GOVERNOR OF THE STATE OF NEW JERSEY, AND RONALD M. HEYMANN, INDIVIDUALLY AND AS COMMISSIONER OF THE DEPARTMENT OF LABOR AND INDUSTRY OF THE STATE OF NEW JERSEY, AND JOHN J. FRANCIS, DEFENDANTS.
    Superior Court of New Jersey Chancery Division
    Decided July 24, 1973.

      Mr. Daniel E. Isles for plaintiff (Messrs. Isles & Weissbard, attorneys).

      Mr. Morton I. Greenberg, Assistant Attorney General of New Jersey, for defendants (Mr. George F. Kugler, Jr., Attorney General of New Jersey, attorney).
   Kimmelman, J. S. C.

On June 21, 1973 the Commissioner of the Department of Labor and Industry, acting pursuant to orders from the Governor, suspended James J. Bonafield. from his position as judge of compensation of the Division of Workmen’s Compensation. The suspension was based on a charge that Judge Bonafield had engaged in the practice of law in violation of N. J. S. A. 34 :15-49. Judge Bonafield now seeks a judgment vacating the suspension, restoring him to office with back pay, and restraining the Governor and his agents from conducting a removal hearing pursuant to N. J. Const. (1947) Art. V, § IV, par. 5. It is asserted that Judge Bonafield is a judicial officer entitled to hold his office during good behavior and that he may only be removed by impeachment pursuant to the provision of N. J. Const. (1947) Art. VII, § III. The Attorney General of New Jersey, on behalf of defendants, moves to dismiss the complaint or, in the alternative, for summary judgment on the grounds that the court lacks jurisdiction over this matter since plaintiff is not a judicial officer and has failed to exhaust his administrative remedies. N. J. Const. (1947) Art. Y, § IY, par. 5 provides:

The Governor may cause an investigation to be made of the conduct in office of any officer or employee who receives his compensation from the State of New Jersey, except a member, officer or employee of the Legislature or an officer elected by the Senate and General Assembly in joint meeting, or a judicial officer. He may require such officers or employees to submit to him a written statement or statements, under oath, of such information as he may call for relating to the conduct of their respective offices or employments. After notice, the service of charges and an opportunity to be heard at public hearing the Governor may remove any such officer or employee for cause. Such officer or employee shall have the right of judicial review, of both the law and the facts, in such manner as shall be provided by law.

Pursuant to ■ this constitutional authority the Governor has issued Executive Order No. 47 as follows:

WHEREAS, the New Jersey State Commission of Investigation has investigated the faithful execution and effective enforcement of the laws with respect to workmen’s compensation; and
WHEREAS, during the course of said investigation the New Jersey State Commission of Investigation has received sworn testimony and documentation alleging that James J. Bonafield, Judge of Compensation, engaged in the practice of law in violation of R. S. 34: 15-49 between January, 1970 and July, 1972 and has falsely certified on a Department of Labor and Industry questionnaire in March of 1970 that he was not engaged in any outside profession while acting as a Judge of Compensation; and
WHEREAS, said testimony and documentation has been brought to the attention of the Executive Branch of Government by the New Jersey State Commission of Investigation pursuant to P. L. 1968, c. 266, sec. 8 (C.52:9M-8); and
WHEREAS, Article Y, Section IV, paragraph 5 of the Constitution of New Jersey gives me the authority to investigate and take disciplinary actions against persons who receive remuneration from the State; and
WHEREAS, I directed Ronald M. Heymann, the Commissioner of the New Jersey Department of Labor and Industry, to review the sworn testimony and documentation which was presented before the New Jersey State Commission of Investigation and which was related to the unauthorized practice of law by James J. Bonafield; and
WHEREAS, I determined it to be contrary to the jmblic interest for a Judge of Compensation to continue acting in his official capacity pending investigation and therefore directed the suspension of James J. Bonafield from all official duties pending said investigation; and WHEREAS, Commissioner Ronald M. Heymann has now reviewed
the sworn testimony and documentation presented before the New Jersey Commission of Investigation with regard to the unauthorized practice of law by said James J. Bonafield; and
WHEREAS, Commissioner Ronald M. Heymann has now formally charged said James J. Bonafield with engaging in the practice of law while acting as Judge of Compensation during the period from January, 1970 to July, 1972 in violation of R. S. 34:15-49, with acquiescing and fraudulent conduct to conceal the unauthorized practice of law by said James J. Bonafield during the period from January, 1970 to July, 1972 and wilh falsely certifying a Department of Labor and Industry questionnaire in March of 1970 that said James J. Bonafield was not engaged in any outside profession while acting as a Judge of Compensation,
NOW, THEREFORE, I, WILLIAM T. CAHILL, Governor of the State of New Jersey, by virtue of the authority vested in me by the Constitution and Statutes of this State, do hereby ORDER and DIRECT:
1. Ronald M. Heymann, Commissioner of the Department of Labor and Industry, shall serve upon James J. Bonafield, Judge of Compensation, a copy of the charges concerning the unauthorized practice of law by said James J. Bonafield.
2. John J. Francis, Esq. is appointed hearing examiner to conduct a public hearing based on the above charges prepared and served by the Commissioner of Labor and Industry and to report to me his findings of fact and law concerning those charges.
3. James J. Bonafield shall continue to be suspended from all his official duties pending the hearing and determination of the charges.
4. This Order shall take effect immediately.
GIVEN, under my hand and seal this third day of July, in the year of Our Lord, one thousand nine hundred and seventy-three, of the Independence of the United States, the one hundred and ninety-seventh.
/s/ William T. Cahill GOVERNOR
ATTEST:
/s/ Jean E. Mulford__
ACTING SECRETARY TO THE GOVERNOR

Judge Bonafield asserts that he is a judicial officer beyond the reach of the Governor. He relies upon a 1969 amendment (L. 1969, c. 252, § 2) to N. J. S. A. 34:15-49 as indicative of a legislative intent to give full judicial status to judges of compensation in the Division of Workmen’s Compensation, with rights and privileges equivalent to those of judges in the judicial branch. That section provides :

The Division of Workmen’s Compensation shall have the exclusive original jurisdiction of all claims for workmen’s compensation benefits under this chapter. The judges of the Division of Workmen’s Compensation shall hereinafter be appointed on a bipartisan basis by the Governor, with the advice and consent of the Senate and shall serve during good behavior. The salaries of the director of the division and the judges of compensation shall be $27,000.00. Judges of compensation shall not engage in the practice of law and shall devote full time to their judicial duties.

No doubt N. J. S. A. 34:15-49, as amended, establishes a procedure for the appointment of judges of compensation which is essentially the same as that used in the appointment of judicial officers. Appointment is made by the Governor on a bipartisan basis, with the advice and consent of the Senate. The judges must devote full time to their judicial duties and cannot practice law. Apparently, tenure during good behavior is acquired immediately, without the necessity of service for an initial term. Additionally, the Division of Workmen’s Compensation functions for all practical purposes as a court, not only in physical appearance but in judicial procedure and decorum. Its determinations are likewise made by final judgment on the basis of the law and the facts. Mulhearn v. Federal Shipbuilding and Dry Dock Co., 2 N. J. 356, 365 (1949); Stafford v. United States Envelope Co., 45 N. J. Super. 333, 336 (Cty. Ct. 1957); DeAngelo v. Alsan Masons, Inc., 122 N. J. Super. 88, 90 (App. Div. 1973).

Prior to the 1969 amendment to N. J. S. A. 34:15-49 the New Jersey Supreme Court on two separate occasions acknowledged the similarity of the Division of Workmen’s Compensation and its judges to the courts and judges established in the judicial department of the State Government. In each instance, however, the court rejected the argument that the Division and its judges are within the scope of the judicial article of the Constitution. Mulhearn, supra; Campbell v. Dept. of Civil Service, 39 N. J. 556 (1963).

In Mulhearn the court held:

In the light of article III of the Constitution, the Division of Workmen’s Compensation cannot be deemed a court. It is an administrative tribunal in a department that is a component part of the executive establishment. That does not render its functions any less significant in our social economy or its work any less important to the litigants who resort to it than if it were a court. Starting as an administrative body, designed to overcome some of the outmoded technical rules of law that formerly governed the relations of employer and employee and to administer relief summarily on the basis of a statutory schedule of compensation, the Division of Workmen’s Compensation has, except for the fact that it lies outside the scope of the Judicial Article of the Constitution, gradually acquired many of the attributes of a court. [2 N. J. at 365]

Campbell, supra, was decided after the title of Deputy Director of the Division of Workmen’s Compensation was changed to judge, but before his appointment was mandated by the Legislature to be made on a bipartisan basis with the advice and consent of the Senate. The court said:

In support of Ms appeal, Mr. Campbell attacks the jurisdiction of the Commission as well as its procedures and its actual findings. He claims that since he was appointed under L. 1939, c. 111 (N. J. S. A. 11:7-7) he was not to be viewed as a classified civil service employee subject to service ratings, and that the Commission lacked jurisdiction in connection with his dismissal. This latter attack is made though he was the one who sought relief from the Commission (cf. Marro v. Civil Service Dept., 57 N. J. Super. 335, 343 (App. Div. 1959) and it seems to rest on the wholly fallacious notion that he stood in the same position as a judge within the judicial department of government. Though the Legislature recently changed the title from deputy director to judge of compensation (L. 1960, c. 58: N. J. S. A. 34:1A-12), the change was only one of nomenclature without any alteration of status. It is firmly settled that, although the judges of compensation exercise functions which are somewhat akin to those exercised in the courts, they are in no sense members of the judicial department but are rather members of an administrative agency within the executive department. See Mulhearn v. Federal Shipbuilding & Dry Dock Co., 2 N. J. 356, 360 (1949); Nagy v. Ford Motor Co., 6 N. J. 341, 349 (1951); DiMarcello v. American Bridge Co., 76 N. J. Super. 329, 334 (App. Div. 1962) certif. denied 38 N. J. 498 (1962); New Amsterdam Casualty Co. v. Popovich, 27 N. J. Super. 40, 43 (App. Div. 1953). The out-of-state decisions are to the same effect; many of them may be found collected in 100 C. J. S. Workmen’s Compensation § 379b (1958). [39 N. J. at 574]

Judge Bonafield now urges that Mulhearn and Campbell are no longer viable. In view of N. J. S. A. 34 :15-49 he argues that his status is that of a judicial officer assigned to the executive department. Unfortunately, this argument must fail.

Of course, the Legislature has clothed a judge of compensation with most of the trappings of judicial office. He has substantially the same duties and disabilities as a recognized judge. However, the Legislature stopped short of the mark in the most crucial aspect.

The hallmark of a judge is his independence and freedom from interference and control by any authority outside the judicial establishment. Mulhearn, supra, 2 N. J. 361. While elevating the personal statute of a judge of compensation the Legislature, in enacting the amendment to N. J. S. A. 34:15-49, did nothing to insulate him from direction and control of the Commissioner of the Department of Labor and Industry. As head of the department of which the Division forms a part the Commissioner exercises a wide range of administrative and supervisory functions over the Division. See N. J. S. A. 34:1A-3; 34:1-20; 34:1A-11; 52:14B-3(2).

A judge of compensation is therefore subject to some measure of direction and control by the Commissioner, not the least of which are when and where he sits, the nature and extent of his caseload, and the rules of practice and procedure to be followed by his court. Such provisions are inconsistent with essential judicial independence. Were he meant to be a judicial officer in the true sense, this control would undoubtedly subvert the administrative authority of the Chief Justice of the Supreme Court, cf. Mulhearn, supra, and would impinge upon the doctrine of separation of powers.

The Legislature left no doubt as to the status of a judge of compensation when it recently implemented N. J. Const. (1947) Art. VI, § VI, par. 4, which provides a method for the suspension and removal of judges from office. N. J. S. A. 2A:1B-1 et seq., L. 1970, c. 151, § 1. A “judge,” within the context of that enactment, is defined to be “any judge of the superior court, county court, county district court, juvenile and domestic relations court and municipal court.” All judges and courts comprehended by the Rules Governing the Courts of the State of New Jersey are thus included. Judges of compensation are purposely excluded from disciplinary control by the Supreme Court. This omission is a clear recognition by the Legislature that such judges are regarded as employees of the executive department and subject to existing procedures for suspension and removal. Art. V, § IV, par. 5.

Additional evidence of the legislative intent that the Division of Workmen’s Compensation is essentially an administrative tribunal is found in L. 1971, c. 463, § 1; N. J. S. A. 34:15-66, which provides that judgments of the Division of Workmen’s Compensation are directly appealable to the Appellate Division of the Superior Court. This procedure follows the regularly established method provided for the review of the decisions or action of any state administrator agency or officer. R. 2:2-3 (a) (2).

In short, it is observed that while Judge Bonafield possesses the designation of “judge,” his ultimate status is determined, not by mere name or title but by reference to the nature of his work and the position occupied by him with respeet to that work. In re N. J. Bar Ass’n, 114 N. J. Eq. 261 (E. & A. 1933).

For the reasons expressed, it is clear that this court lacks jurisdiction to interfere with the suspension or removal from office of Judge Bonafield. Until the established constitutional procedures have run their course, resort to the courts is premature. The complaint will be dismissed.


author: Milmed, J. S. C.

text:
    HOWARD F. SKARBNIK, AS COUNCILMAN AND AS TAXPAYER, PLAINTIFF, v. SAMUEL A. SPINA AND HARRY BONNET, DEFENDANTS, TOWN COUNCIL OF THE TOWN OF WEST ORANGE, INTERVENOR-DEFENDANT.
    Superior Court of New Jersey Law Division
    Decided July 30, 1973.

      Mr. Howard F. Skarbnik, plaintiff, appeared pro se.

      Mr. Samuel A. Spina, defendant, appeared pro se.

      Mr. William L’E. Wertheimer, appeared for defendant Harry Bonnet (Messrs. Lum, Biunno & Tompkins, attorneys).

      Mr. Thomas E. Durkin, Jr., appeared for intervenor-defendant Town Council of West Orange.
   Milmed, J. S. C.

This matter comes before the court on complaint in lieu of prerogative writs and order to show cause seeking the removal of defendant Harry Bonnet from his office as president of the town .council of the Town of West Orange (N. J. S. A. 40:69A-180(c)) and his temporary replacement by his immediate predecessor in that office, Robert Mangino; and also the removal of defendant Samuel A. Spina from the office of council representative to the joint meeting of which the municipality is a contracting party (R. S. 40:63-68 et seq.), and his temporary replacement by his immediate predecessor in that office, William Cuozzi, Jr. In the complaint plaintiff, as a councilman and taxpayer of West Orange, also seeks injunctive relief and the return of compensation received by defendant officials in their respective offices of council president and council representative to the joint meeting.

Following the hearing of its application therefor on the return date of the order to show cause, leave was granted to the town council to intervene in this action as a party defendant (B. 4:33). The facts are not in dispute. Accordingly, the parties appearing have consented that the court hear the matter as on motion by each of the respective parties for summary judgment, on the pleadings, affidavits and copy of the record filed, and memoranda of law and oral argument submitted.

West Orange is governed by the mayor-council plan B form of government under the Optional Municipal Charter Law, commonly referred to as the; Faulkner Act (L. 1950, c. 210; N. J. S. A. 40:69A-49 et seq.). Its town council consists of five members (N. J. S. A. 40:69A-52), elected at large by the voters of the municipality at a regular municipal election, who serve for a term of four years (N. J. S. A. 40:69A-52). The council determines its own rules of procedure, not inconsistent with ordinance or statute (N. J. S. A. 40:69A-180(a)). A majority of the whole number of members of the council constitutes a quorum, with the proviso that no ordinance shall be adopted by the council without the affirmative vote of a majority of all of the members of the council (N. J. S. A. 40:69A-180 (a)). The vote on every motion, resolution or ordinance must be taken by roll call, and the yeas and nays must be entered on the minutes, which must be signed by the officer presiding at the council meeting and by the municipal clerk (N. J. S. A. 40:69A-180(b)). Appointments by the council require a majority vote. (Ordinance, Rules of Council 1962, as amended, section 12 (b)).

N. J. S. A. 40:69A-180(e) states in pertinent part that

The council at its organization meeting shall elect a president of the council from among the members thereof and he shall preside at its meetings and perform such other duties as the council may prescribe. * * * [Emphasis supplied]

The president of the council is chosen for a term of one year and may not succeed himself. (Ordinance, Rules of Council 1962, as amended, section 3.) The office carries with it an additional annual salary of $500.

West Orange is a member of a joint meeting organized pursuant to N. J. S. A. 40:63-68 et seq. (construction and maintenance of a joint trunk sewer and sewage disposal plant). The joint meeting consists of “the respective governing bodies or boards having authority to construct sewers and drains therein, of the several municipalities” contracting. N. J. S. A. 40:63-85.

N. J. S. A. 40:63-69 defines the words “joint meeting” as used in the statute as follows:

The words “joint meeting” as used in this article shall mean the meeting or assembly of the members of the governing bodies or boards of the several municipalities having authority to make and enter into contracts for the construction jointly of the works or improvements, ■authorized by section 40:63-70 of this title.

Another section, N. J. S. A. 40:63-87, states in pertinent part that

Bach municipality, through its body or board represented in such joint meeting, shall be entitled to one vote therein, on all motions, resolutions, appointments and all other proceedings taken in or by such joint meeting, subject to the qualifications hereinafter specified; and such vote shall be cast and announced as is directed by a majority of all the members of such municipal body or board present in such joint meeting, whether such members present constitute a quorum of such body or board, or not. If only one member of such municipal body or board be present at the joint meeting, the vote of his municipality may be cast by him.

In regard to West Orange, participation in the actions of the joint meeting is thus confined to members of the town council. Annually the town council elects a member of the council to represent the municipality at the joint meeting for a one-year term. The office carries with it compensation of $2,200 for the year.

At its meeting of June 28 of this year, the town council elected its council president for the next fiscal year, i. e., July 1, 1973 to June 30, 1974, and its representative at the joint meeting for the same one-year term. All five councilmen were present, i. e., Councilmen Bonnet (one of the defendants herein), Cuozzi, Skarbnik (plaintiff), Spina (a defendant) and Mangino- (then council president). On the call for nominations for council president, plaintiff Councilman Skarbnik nominated Councilman Cuozzi, and Councilman Cuozzi seconded, the nomination. On the roll call the nomination was defeated, Councilmen Cuozzi and Skarbnik voting “aye” and Councilmen Bonnet, Spina and Mangino voting “nay.” Councilman Spina then moved the nomination of Councilman Bonnet, the motion being seconded by Councilman Mangino. On the roll call the motion was carried and Bonnet was accordingly elected council president for the ensuing year; Councilman Bonnet, Spina and Mangino voting “aye” and Councilman Cuozzi and Skarbnik voting “nay.”

In regard to the council representative at the joint meeting, a resolution designating Councilman Spina to represent the municipality at the joint meeting for the term of one year from July 1, 1973 to June 30, 1974 was introduced. Councilman Cuozzi thereupon nominated Councilman Skarbnik to be the council representative to the joint meeting; Councilman Skarbnik seconding the motion. That motion was defeated, Councilmen Cuozzi and Skarbnik voting “aye” and Councilmen Bonnet, Spina and Mangino voting “nay.” Councilman Bonnet then moved the adoption of the resolution appointing Councilman Spina to represent West Orange at the joint meeting, the motion being seconded by Councilman Mangino. On the roll call the motion was adopted by a vote of 3 to 2, Councilmen Bonnet, Spina and Mangino voting “aye” and Councilmen Cuozzi and Skarbnik voting “nay.”

The single thrust of plaintiff’s claim is that Councilman Bonnet was by reason of self-interest disqualified from voting in favor of the motion electing him to the office of council president, and that Councilman Spina was similarly by reason of self-interest disqualified from voting in favor of the resolution designating or appointing him to represent West Orange at the joint meeting.

Plaintiff relies substantially on the opinion of the court in Tp. Committee, Hazlet Tp. v. Morales, 119 N. J. Super. 29 (Law Div. 1972), which in turn relied substantially upon the opinion of the former Supreme Court in Grimes v. Miller, 113 N. J. L. 553 (Sup. Ct. 1934). Neither holding is applicable in this case. Grimes involved the appointment of the mayor of the City of Clifton to membership in the Passaic Valley Water Commission. There being a tie vote in the city council on the resolution of appointment, it was presented to the mayor for his approval or disapproval. The mayor failed to act on the resolution within the time prescribed by the statute and, the statute providing that in such a situation “it shall be presumed that the action of the mayor was in the affirmative,” the city clerk thereupon certified that it was accordingly “taken to be passed by the city council, as provided by Pamph. L. 1927, ch. 134, p. 248.”

The court observed that

Section 23 of article 37, chapter 152 (Pamph. L. 1917, p. 461 — Home Rule act) provides as follows:
“No member of any governing body of any municipality shall, during the term for which he shall have been elected or appointed such member, be eligible for election or appointment to any office required to be filled by any such governing body of which be is then a member; provided, however, that this restriction shall not apply to any office required by law to be filled by a member of such governing body.”
The appointment is not within the exception of the act. [113 N. J. L. at 556]

Holding that the mayor of Clifton, under the applicable statute and by operation of law, became a member of the governing body of the municipality when “he was called upon to cast a vote, in the council, to break a tie vote,” the court pointed out that

It is quite obvious that the mayor’s failure to act, under the provisions of the act was tantamount of an affirmative vote by him. Does it contravene the provisions of article 37, section 23 (Pamph. L. 1917, ch. 152) of the Home Rule act? We think so.
The prototype of the provisions of the Home Rule act is found as far back as 1885. Pamph. L. 1885, p. 178. The disqualification thus continued to be imposed by the legislature was designed to remedy the mischief of the “temptation which bad seduced members of municipal corporations to use their influence and votes as members of such bodies to advance their personal interests.” It was also designed to prohibit a member of any municipal organization exercising political power from so abusing his official influence. Doyle v. Bayonne, 54 N. J. L. 313; Burtis v. Haines, 91 Id. 4; affirmed, 92 Id. 248. The resultant inaction of the mayor was not only the equivalent of a direct act contrary to the letter of the law but was a challenge and a defiance of the mischief which the law was designed to remedy. It cannot and should not be sustained.
It seems to us that the mayor was disqualified from participation in his own election because of his self-interest. * * * [Ibid. at 557-558]

In Hazlet the township committee, by a 3 to 2 vote, on December 21, 1971 appointed defendant Joseph A. Morales, a member of the township committee who had been defeated for re-election in the November 1971 election, to membership on the Hazlet Township Sewerage Authority for the term from December 21, 1971 to January 31, 1975, the office carrying with it a salary of $1,500 a year. Morales had voted in the affirmative for his own appointment to membership in the sewerage authority. The appointment was declared void. As pointed out by the court in that case, the applicable statute:

N. J. S. A. 40:14A-1 et seq. provides for municipal and county sewerage authorities. N. J. S. A. 40:14A-5 provides in part:
(c) * * * neither the holding of any oflice or employment in the government of any county or municipality or under any law of the State nor the owning of any property within the State shall be deemed a disqualification for membership in or employment by a sewerage authority, and members of the governing body of a local unit may be appointed by such governing body and may serve as members of a sewerage authority. * * * [119 N. J. Super. at 32; emphasis supplied]

It is clear that the appointment in Grimes was prohibited by a specific section of the Home Rule Act of 1917, L. 1917, c. 152, later N. J. S. A. 40:46-5. It is equally clear that in Hazlet the applicable statute, N. J. S. A. 40:14A-5, permitted, rather than required, members of the governing body to be appointed by the governing body as members of a sewerage authority. See Tp. Committee, Hazlet Tp. v. Morales, supra, 119 N. J. Super. at 32-33; see also, O'Keefe v. Dunn, 89 N. J. Super. 383 (Law Div. 1965), aff'd o.b., 47 N. J. 210 (1966).

Here, however, the Legislature has specifically made membership in the governing body of the Town of West Orange a prerequisite for election to the office of council president and for participation in actions of the joint meeting of which the municipality is one of the contracting parties. N. J. S. A. 40:69A-180(c), 40:63-85 and 40:63-87. Thus, the group from which elections to these offices can legally be made is, in the Town of West Orange, restricted to five individuals, namely, the members of the town council.

As stated by Justice Burling in his opinion for the Supreme Court in Scatuorchio v. Jersey City Incinerator Authority, 14 N. J. 72 (1953):

It is axiomatic that municipal bodies in this State have no powers other than those delegated by the Legislature, and must perform their prescribed activities within the statutory ambit, [at 85, emphasis supplied]

As previously indicated in this opinion, the applicable statute governing the procedure to be followed by the town council in the performance of its duties provides in pertinent part that

Council shall determine its own rules of procedure, not inconsistent witli ordinance or statute. A majority of the whole number of members of the council shall constitute a quorum, but no ordinance shall be adopted by the council without the affirmative vote of a majority of all the members of the council. N. J. S. A. 40:69A-180(a). (Emphasis supplied]

The council’s rules of procedure are set forth in its ordinance known as Rules of Council 1962, as amended, which, consistent with the statute, N. J. S. A. 40:69A-180(a), provides in pertinent part that “Three members of the council shall constitute a quorum” (section 7), and that appointments by the council are to be by majority vote at a regular meeting of the council (section 12(b)). The council’s rules of procedure also provide that “Except as otherwise specifically provided in these rules, the proceedings of the council shall be governed by Roberts [sic] Rules of Order” (section 13(a)).

It is immediately apparent that plaintiff’s suggestion that the nominee for council president and the nominee for council representative to the joint meeting disqualify themselves from voting on their respective nominations would require, for election in either situation, the affirmative vote not of the majority, as legislated, but rather of at least three of the four couneilmen remaining. In effect, this would mean that for any such nominee to be elected or appointed, at least four of the five couneilmen (three in addition to the nominee) would have to favor the election or appointment. This suggested requirement is not within the letter or spirit of the applicable statute, N. J. S. A. 40:69A-180, and the local rules of procedure adopted pursuant thereto.

There has been no showing here that either of the defendant couneilmen was at the time of voting subject to any direct or indirect private interest at variance with the impartial performance of his public duty. Cf. Aldom v. Rose land, 42 N. J. Super. 495, 501 (App. Div. 1956). And see, Van Itallie v. Franklin Lakes, 28 N. J. 258, 268-269 (1958). Robert’s Rules of Order Newly Revised (1970), provides in chapter XIII, § 44 (“Voting Procedure”):

ABSTAINING FROM VOTING ON A QUESTION OF DIRECT PERSONAL INTEREST. No member should vote on a question in which he has a direct personal or pecuniary interest not common to other members of the organization. For example, if a motion proposes that the organization enter into a contract with a commercial firm of which a member of the organization is an officer and from which contract he would derive personal pecuniary profit, the member should abstain from voting on the motion.
VOTING ON QUESTIONS AFFECTING ONESELF. The rule on abstaining from voting on a question of direct personal interest does not mean that a member is prevented from voting for himself for an office or other position to which members generally are eligible, nor from voting when other members are included with him in a motion. If a member could never vote on a question affecting himself, it would be impossible for a society to vote to hold a banquet, or for the majority to prevent a small minority from preferring charges against them and suspending or expelling them. * * * [at 345]

Each of the councilmen is eligible for either office. Accordingly, the interest of any one of them in either office is “common to other members” of the council, and any one of them is no more disqualified thereby from voting for himself than are the others from voting against him.

For the foregoing reasons plaintiff’s motion for summary judgment is denied and defendants’ motion for summary judgment is granted, without costs.

         Cf. N. J. S. A. 40A:9-155.

         N. J. S. A. 40:46-5 was repealed by L. 1971, c. 200, effective July 1, 1971. N. J. S. A. 40A:9-175.

       The unreported case of Kurz v. Genova, Superior Court, Law Division, Union County, Docket No. L-31265-72 P.W., also referred to by plaintiff, apparently concerned an appointment of a member of the governing body of the Borough of Roselle Park to be the council representative to a “Joint Sewer Commission” (the same joint meeting as that referred to in the instant litigation). In that ease the court removed defendant from the position of Roselle Park representative to the “Joint Sewer Meeting” to - which he had been appointed by the borough council by a 4 to 3 vote, defendant’s vote being one of the four votes cast for the appointment; the Court relying principally upon the opinion in Hazlet,


author: Doherty, J. C. C.,

text:
    STATE OF NEW JERSEY, DEPARTMENT OF ENVIRONMENTAL PROTECTION, PLAINTIFF, v. JERSEY CENTRAL POWER & LIGHT COMPANY, A NEW JERSEY CORPORATION, DEFENDANT.
    Superior Court of New Jersey Law Division
    Decided July 27, 1973.

      Mr. Lewis Goldshore, Deputy Attorney General, for plaintiff (Mr. George F. Kugler, Jr., Attorney General of New Jersey, attorney).

      Mr. Robert O. Brokaw for defendant.
   Doherty, J. C. C.,

Temporarily Assigned. This is an action by the State of New Jersey as plaintiff, against defendant operator of an electric power generator plant in Lacey Township, in three counts, all! arising out of the same incident. The first count seeks to enforce the penalty provisions of N. J. S. A. 23:5-28, which prohibits the discharge of harmful substances into tidal water. The second count was resolved on motion during the trial, and the third count seeks to recover an award at common law, as parens patriae, for damages done to wild life, e, g., menhaden fish.

The first count encompasses a summary action to recover a penalty, while the third count is one in tort which would be governed by the rules of court concerning jury trial, discovery, etc. The parties have agreed to waive these rules and have the counts tried together. Defendant moved to dismiss the third count for failure to present a claim upon which relief could be granted. Decision was reserved on this motion at trial, but the same is hereby denied.

After a consideration and weighing of all of the testimony, the court finds that plaintiff has shown the following by a preponderance of the evidence:

On January 28, 1972 Jersey Central Power and Light Company operated an atomic power plant in Lacey Township, Ocean County, New Jersey, at a location a short distance west of the westerly shore of Barnegat Bay. In connection with this operation it had created a water intake canal from the south branch of Forked River, which branch lay to the north of its plant, running from Barnegat Bay in a westerly direction past the plant. The plant drew water from this canal into its system for the purposes of (1) cooling its condensers with water pumped through them by three of its four circulating pumps, and (2) diluting the previously circulated water by discharging additional water through one of its three diluting pumps into a discharge canal into which the circulated water was also being discharged. This discharge canal had also been created by Jersey Central Power and Light Company, to run into Oyster Creek, which creek ran along the generally southerly side of the plant into Barnegat Bay. Thus, the plant took water from the south branch of Forked River on its north and pumped it into Oyster Creek on its south, both the branch of the river and the creek being connected with Barnegat Bay a short distance downstream. All three bodies of water are tidelands.

On the date in question the temperature of the water in the intake canal from Forked River was under 40° F, and the temperature of the water in the outlet canal to Oyster Creek and Oyster Creek was well over 50°. This temperature difference resulted from the fact that the condensers had been heating the circulating water prior to its discharge into the outlet canal. Large numbers of menhaden fish were in the outlet canal and Oyster Creek. The plant elected to shut down its generators suddenly on this date, resulting in a cessation of the heat in its condensers, and further resulting in a precipitous drop in temperature of the water being discharged into the outlet canal by the circulating pump which still continued to operate. This lowering of the temperature to under 40° caused a so called “fish kill”, or the death of approximately 500,000 menhaden in and about the outlet canal and Oyster Creek into which it emptied. The value of these fish was $935. The continuous pumping of the colder water over the next few days has not been shown to have had any further effect in new or different “fish kills” during this period.

To sustain a cause of action in the first count under N. J. S. A. 23 :5-28 the State must show that defendant placed in the fresh or tidal waters of the State any “hazardous, deleterious, destructive or poisonous substance * * *.” The court lacks any case law or statutory definitions of these substances. A review of the legislative history of the statute appears appropriate in this regard. State, etc. v. Union County Park Comm'n, 89 N. J. Super. 202, 219, 220 (Law Div. 1956). In the course of a public hearing held on February 26, 1968 in connection with passage of this statute, there appears the following statement by Senator Apy in behalf of Senator Beadleston, the sponsor of the bill:

The intent is not to try to define, as the statutes presently do, that coal tar or sawdust or lime or any one of these things is going to cause the contamination. Rather, the object of the legislation is to say that anyone who permits any injurious substances which have effects that are detrimental to the inhabitants of the waterways shall be responsible for doing it.

This statement, read in conjunction with the form of the bill as it appeared before and after adoption on April 29, 1968, leads the court to examine the effect and not the cause in determining if cold water is a pollutant in this instance. The court finds that the introduction of cold water into an environment artificially kept warm by the power plant killed the fish. The court holds that the putative polluter must take the environment as he finds it, and what may be hazardous in one instance may not be in another, and that the introduction of the cold water from Forked Eiver in this case into the warm water environment of Oyster Creek amounted to the introduction of a deleterious substance. The court therefore finds that defendant violated the statute and imposes a penalty of $6,000.

With respect to the third count there is no controversy bet wen the parties that New Jersey accepts the so-called trust doctrine with respect to dominion and sovereignty over lands covered by tidal waters. Our Supreme Court, in Neptune City v. Avon-by-the-Sea, 61 N. J. 296, 304 (1972), has cited as a succinct statement of this doctrine the language in the ease of Illinois Central R.R. Co. v. People of State of Illinois, 146 U. S. 387, 13 S. Ct. 110, 36 L. Ed. 1018 (1892) :

it is the settled law of this country that the ownership of and dominion and sovereignty over lands covered by tide waters, within the limits of the several states, belong to the respective states within which they are found, with the consequent right to use or dispose of any portion thereof, when that can be done without substantial impairment of the interest of the public in the waters, and subject always to the paramount right of Congress to control their navigation so far as may be necessary for the regulation of commerce with foreign nations and among the states. This doctrine has been often announced by this court. *’ * * [146 U. S. at 435; 13 S. Ct. at 111, 36 L. Ed. at 1036]

Arnold v. Mundy, 6 N. J. L. 1, 71, (Sup Ct. 1831), held that the jus publicum includes the tidal waters and fish found therein. Neptune City v. Avon-by-the-Sea, supra states:

The original purpose of the doctrine was to preserve for the use of all the public natural water resources for navigation and commerce, waterways being the principal transportation arteries of early days and for fishing, an important source of food. [61 N. J. at 304; emphasis supplied]

Wild animals, including fish, within the jurisdiction of a State, as far as they are capable of ownership, are included in the public trust. LaCoste v. Dept. of Conservation, 263 U. S. 545, 44 S. Ct. 186, 68 L. Ed. 437 (1924); Geer v. Connecticut, 161 U. S. 519, 16 S. Ct. 600, 40 L. Ed. 793 (1896).

Both sides recognize the right of the State, as parens patriae (which is to say, trustee), to injunctive relief in order to conserve the trust corpus from actions of a wrongdoer. There has been some distinction made, as argued by defendant, between the recognized right of the State to injunctive relief in those cases, and its right to recover money damages for injury to wild life because of an alleged lack of proprietary interest in the same. However, it would appear to this court unreasonable and injudicious to impose the fiduciary duties of a trustee upon the State while withholding the ability to have the corpus reimbursed for a dimunition attributable to a wrongdoer.

In regard to the damage allegedly done to the public trust, the court is not limited to any set definition of a pollutant. Rather, the court will look to. the subject which is held in trust by the State and determine whether under traditional notions of damages, damage has occurred. State of Maine v. m/v Tamano, 357 F. Supp. 1097, 1101-02 (D. Me. 1973). This court has determined as a matter of fact that the death of the fish resulted from the actions of the power company. There can be little debate that the public trust has been diminished by the loss of these fish.

The court agrees with the reasoning expressed by the court in Maryland v. Amerada Hess, 350 F. Supp. 1060 (D. Md. 1972):

The conclusion seems inescapable to this court, that if the State is deemed to be the trustee of the water, then, as trustee, the State must be empowered to bring suit to protect the corpus of the trust—■ i. e., the waters—for the beneficiaries of the trust—i. e., the public, [at 1067]

The State has not only the right but also the affirmative fiduciary obligation to ensure that the rights of the public to a viable marine environment are protected, and to seek compensation for any dimunition in that trust corpus.

The difficult burden of proving damages, in these as in all cases, is of course on plaintiff. Although it appears generally that the environment may well have been adversely affected in many ways, as argued by plaintiff, the court cannot speculate as to the monetary value of these damages. It awards plaintiff a judgment of $935 on this count, or the market value attributed by the State’s witness to the fish killed on the day in question.