text:
    KATHLEEN McNALLY, ET ALS., PLAINTIFFS, v. TOWNSHIP OF TEANECK, ET ALS., DEFENDANTS.
    Superior Court of New Jersey Law Division
    Decided January 17, 1975.

      Mr. Howard M. Kaplan for plaintiffs (Mr. Alan Marlowe on the brief).

      Mr. Jacob Schneider for defendants (Messrs. Schneider, Schneider & Behr, attorneys; Mr. Michael Lubin on the brief).
   Pkesslek, J. C. C., Temporarily Assigned.

Plaintiffs, owners of 49 single-family residential properties in the Township of Teaneek appeal, pursuant to N. J. S. A. 40:56-54, from the township’s confirmation of assessments imposed against their properties to pay for a portion of the cost of improving the streets upon which their homes abut. The appeal raises important legal questions regarding defendant township’s use of a front-foot formula for calculating the amount of the assessments.

The significant facts relating to the making of the challenged assessments, as proved at trial, are essentially undisputed. The township, pursuant to a bond ordinance duly adopted in March 1971, undertook, in part as a local improvement, a substantial street reconstruction project on a group of eleven streets in a residential neighborhood in the so-called West Englewood section of the municipality. The project consisted of five categories of street improvements: (1) storm sewer repair and replacement; (2) sanitary sewer repair and replacement; (3) curb replacements; (4) new curbing where required and (5) new street paving. Pursuant to the terms of the ordinance, the storm and sanitary sewer work and the curb replacement work were undertaken as general improvements. The new curbing and pavement work were undertaken as local improvements for which the benefitted property owners were to be specially assessed pursuant to N. J. S. A. 40:56-1 et seq.

The project was duly undertaken, and completed, and on April 17, 1973, and in compliance with the requirements of N. J. S. A. 40:56-24, the township adopted a resolution prepared by its engineering department reciting the satisfactory completion of the work, fixing for each of the 11 streets the actual construction cost for each of the five categories of work, and determining a separate overhead cost for all categories of work on mch of the 11 streets. The total cost of the entire street improvement program, including overhead, was so certified to be $734,816.05. Of this amount, the local improvement costs were $331,280.72 plus overhead for street paving, and $12,104.95 plus overhead for new curbing cost. These costs were to be the subject of the special assessments. The township then, pursuant to the statute, transmitted this resolution of certification to the three assessment commissioners, appointed in accordance with N. J. S. A. 40:56-22, who then undertook the fixing of the assessments.

Two of the commissioners, Norman E. Sirianni and J. Jerome Case, testified at the trial. The pretrial deposition of the third commissioner, James R. Wynn, whose presence was not procurable at trial by reason of his nonresidency at that time, was admitted into evidence. The testimony of the three commissioners was in substantial agreement as to the manner in which the assessments were made. Their method was simply to calculate, based on municipal maps, the total front feet abutting each of the 11 improved streets and to divide the actual cost of the two local improvement categories for each street by that number of front feet in order to arrive at a front-foot unit cost. That unit cost was then multiplied by the number of front feet of each separate property and the product thus obtained, after application of a uniform overhead factor of 7%, was the figure reported as the assessment, except in the case of corner lots which abutted two improved streets. As to these, the assessment consisted of the unit cost multiplied by the number of front feet on that street, which was the postoffi.ee address of the property plus half of the unit cost multiplied by the front feet on what was then considered as the side street frontage.

It should be noted that the unit cost so arrived at both for paving and new curbing was not the same for each ox the streets involved, and this for the reason, apparently, that the actual lineal foot charge of the contractor vailed from street to street, although no reason for the variation, except in the case of Sussex Street, as indicated infra, was ever offered. As a result of the lineal foot cost variations, the repaving cost on a street-by-street basis ranged from a low of $9.87 to a high of $16.35 a lineal foot. Consequently, properties of equal frontage on different streets were disparately assessed despite the fact'that the paving work on all streets except Sussex Street apparently produced reconstructed streets of the same specifications. It should be further noted tiiat the properties so assessed vary substantially with respect to depth, size and shape.

Over 300 separate properties abutted the 11 improved streets in question, and the assessment made by the commissioners for each, in accordance with the front-foot method described above, was duly reported to the council after public hearing, as required by statute. By resolution adopted October 16, 1973 the township confirmed the assessments as reported, with two minor adjustments. One was the reduction of the lineal foot cost for the Sussex Road properties by $1,115, the council having found that all of the other streets had been paved for a depth of five inches whereas Sussex Road had been paved for a depth of six inches. This reduction was intended to reflect the extra inch of paving, thereby purporting to place the Sussex Road property owners on an equal basis with the owners abutting the other streets. The second adjustment was a reduction of one of the individual assessments, apparently on the basis that extra lineal feet had been calculated into that assessment. The owners of that property are not plaintiffs here.

The owners of the 49 properties, who are plaintiffs here, filed their action within 30 days of the confirmation date, as required by statute, claiming that the assessments were illegal, first, because the street improvement program did not confer any special benefit upon their properties at all, and second, that in the event there was some special benefit conferred which would justify a special assessment, the assessments were made so arbitrarily as not to represent a fair reflection of the dollar amount of any such benefit.

The determination of these contentions requires statement of the essential legal principles governing the making of assessments for local improvements. First, it is clear that the basis of the municipal power to make and collect a special assessment is. the actual fact that the improvement which is the subject of the assessment confers upon the property owners assessed a special benefit by way of enhancement of the value of their properties beyond and in addition to that general benefit which may be enjoyed by all of the property owners and residents of the municipality. Hence, it is a matter of constitutional imperative that the amount of the assessment be calculated in relation to the value of the special benefit and that it not exceed that value. See In re Public Service Elec. and Gas Co., 18 N. J. Super. 357, 363 (App. Div. 1952); Ridgewood Country Club v. Paramus, 55 N. J. 62, 68 (1969); Jardine v. Rumson, 30 N. J. Super. 509, 519 (App. Div. 1954); McQueen v. West New York, 56 N. J. 18, 23-24 (1970); Howorth v. Wenonah, 67 N. J. Super. 161, 165 (Law Div. 1961). And see, N. Y. and G. L. Ry. Co. v. Kearney, 55 N. J. L. 463, 470 (Sup. Ct. 1893), which held unconstitutional an assessment statute which did not require that the amount of the assessment reflect the special benefit but rather simply dictated assessment of properties abutting the improvement in proportion to its expense.

To ensure compliance with this judicially articulated constitutional prerequisite to the municipal power to specially assess, the statute, N. J. S. A. 40:56-26, places upon the commissioners the obligation to "make a just and equitable assessment of the benefit conferred upon any real estate by reason of such improvement having due regard to the rights and interests of all persons concerned, as well as the value of the real estate benefited.” They are further enjoined to levy the assessment "as nearly as may be in proportion to and not in excess of the peculiar benefit, advantage or increase in value which the respective lots and parcels of real estate shall be deemed to have received by reasons of such improvement.” N. J. S. A. 40:56-27.

It is also clear that special benefit in this context has a well-settled meaning. Special benefit is the actual increase in the value of the property which results from the local improvement or, more particularly stated, the difference in the lair market value immediately before and immediately after the making of the improvement. This definition of special benefit is not only currently accepted, see, e. g., McQueen v. West New York, supra, but has also been recognized in our jurisprudence on this subject for at least the last 50 years; see, e. g., In re South Orange, 2 N. J. Misc. 867, 869 (Circ. Ct. 1927), and In re Mulberry Street, Newark, 11 N. J. Misc. 295, 303 (Circ. Ct. 1933). Thus, the task of the commissioners is to devise and implement a method of determining the assessment which is reasonably calculated both to reflect the before and after value of the benefited property and to fairly apportion the burden of payment for the improvement among all the affected property owners. In performing this task the cost of the improvement has relevance — it is not, however, both as a matter of constitutional requirement and statutory mandate, dispositive as the commissioners here seemed to think. That is to say, the cost of the improvement constitutes a ceiling on the total assessments, so that even if the total dollar amount of the special benefits exceeds the improvement cost, the total assessments cannot exceed that cost and will be, consequently, less than the enhancement value. On the other hand, if the cost of the improvement exceeds its enhancement value, the amount of the assessment cannot exceed the enhancement and the municipality must itself pay the difference between the cost and the assessment. This is the express provision of N. J. S. A. 40:56-24, which thereby recognizes the economic reality that cost and enhancement are not equal, equatable or interchangeable concepts. Thus an assessment calculation method, such as the front-foot formula here employed, which is exclusively dependent upon the cost of the improvement and is obviously designed primarily to recoup for the municipality the cost of the improvement on a simplistic mathematical basis, prima facie fails to meet the statutory requirements unless the commissioners have made an initial determination, first, that the total cost does not exceed the total enhancement value, and second, that the formula fairly apportions the burden among all the property owners in accordance with their respective benefits.

Counsel for the township urges that the use of such a cost-related front-foot formula as that here employed where street improvements are involved is a judicially approved and longstanding basis for calculating assessments, and hence that there is nothing either exceptional or objectionable about its use here. The front-foot formula method may be unexceptional and in current usage by municipalities. This court, however, cannot agree that its use is therefore unobjectionable. The front-foot formula method has been deprecated as a matter of ancient precedent in this State. Thus, the former Supreme Court, 120 years ago, in considering such a formula held that:

A mere calculation of the proportion of the sum allowed to the contractor, * * * to each lot according to its size, which is all the commissioners did, was a very different thing from the assessment they were appointed to make. They were required to he, and doubtless were, impartial, disinterested men, and were sworn faithfully, honestly and impartially to perform the duties required of them, not merely that they might verify a calculation of the city surveyor or any other officer, but that they might ascertain the actual expenses incurred, by examining into the whole matter, and by information derived from the documents and other sources; and determine the proportion thereof that ought to be assessed to each parcel or lot according to the actual benefit received by such parcel or lot in the same manner. [State v. Jersey City Mayor and Common Council, 24 N. J. L. 662, 667-668 (Sup. Ct. 1855)]

And five years later, and even more to the point, that court, in invalidating a group of front-foot assessments for street improvement, was moved to observe that:

To make a mere calculation on such a basis would not require the services of three judicious disinterested persons, sworn faithfully, honestly, and impartially to perform their duties. Any clerk or sehool-boy with a little knowledge of arithmetic could do that.
The assessment so made is not to be taken as the exercise of the discretion and judgment of the commissioners and a determination of the benefits. The mode of the operation excludes that idea, and their report shows that all were charged alike without discrimination. It is not an assessment in proportion to the benefits received. [State v. City of Hudson, 29 N. J. L. 115, 116-117 (Sup. Ct. 1860)]

It is true that throughout the ensuing years the front-foot method, presumably because of the ease of its applica^ tion and its convenience to municipalities, gained some measure of respectability. It is critical, however, to note that no court in this jurisdiction has ever approved its use without the basic qualification that there be a factual correlation between the result of the formula and the actual benefit conferred. Indeed, and ironically, the history of even qualified judicial approval of the method begins with the observation that “the mere fact that an assessment laid on property peculiarly benefited in proportion to benefits, and limited thereto, corresponds with area or frontage, will not overturn such assessment.” State, New Brunswick Rubber Co., pros. v. Com'rs of Streets and Services, 38 N. J. L. 190, 195 (Sup. Ct. 1875). Prom this statement it was but a short step to the inversely stated and frequently reiterated principle that “[t]ihe mere fact that in making the assessment, the commissioners have paid considerable regard to frontage, will not invalidate the assessment if they have leen guided ly the principle of apportioning the expense according to the benefits.” State, Kohler, pros. v. Guttenlerg, 38 N. J. L. 419, 422 (Sup. Ct. 1876) (emphasis supplied). And see, e. g., Righter v. Newark, 45 N. J. L. 104, 108 (Sup. Ct. 1882) ("At any rate, a frontage assessment is not necessarily involved * * *”); Raymond v. Rutherford, 55 N. J. L. 441, 448 (Sup. Ct. 1893), aff’d p.c. 56 N. J. L. 340 (E. & A. 1893) ("The principle of frontage assessment is not necessarily wrong. If that mode properly distributes the benefits among the owners of property benefited, there can be no objection to its use.”); Moran v. Jersey City, 58 N. J. L. 144, 147 (Sup. Ct. 1895), aff’d p. c. 58 N. J. L. 653 (E. & A. 1896) ("There can be no objection to frontage assessment wiien it properly distributes the benefits among the owners benefited.”); Thompson v. East Orange, 94 N. J. L. 106, 109 (E. & A. 1919) ("We do not think that the foot frontage rule was adopted here to the exclusion of benefits received. As an element indicating benefit, the frontage theory, when not made the exclusive theory, will not condemn an assessment.”); Wilson v. Ocean City, 11 N. J. Misc. 325, 326, 165 A. 880 (Sup. Ct. 1933), aff’d o. b. 112 N. J. L. 97 (E. & A. 1933) (“The law is settled that an assessment on a frontage basis will not be set aside if that basis appears to be a fair test for the estimation of benefits.”) The courts have, furthermore, been prompt to invalidate frontage assessments when not related to actual benefit. See, e. g., State, Simmons, pros. v. Passaic, 42 N. J. L. 463 (Sup. Ct. 1880); N. Y. and G. L. Ry. Co. v. Kearney, 55 N. J. L. 463 (Sup. Ct. 1893); Lehigh Valley R.R. Co. v. Jersey City, 81 N. J. L. 290 (Sup. Ct. 1911); Bradley v. Asbury Park, 87 N. J. L. 293 (E. & A. 1914); Carton v. Neptune City, 16 N. J. Misc. 5, 196 A. 672 Cir. Ct. 1937); Howorth v. Wenonah, 67 N. J. Super. 161, 167, 169 (Law Div. 1961).

Even if it be assumed that the front-foot method, which is typically based exclusively on cost factors, ever really produces a fair approximation of the increase in market value of the beneiitted property resulting from the improvement (a proposition which this court seriously doubts), the question then is whether or not the plaintiffs here have proved by clear and convincing evidence first, that in making the challenged frontage assessments, the commissioners were not guided by the principle of fairly apportioning the burden among the property owners in proportion to the benefits received by them and second, that under the circumstances here, the frontage formula was not a fair test of the benefit. Considering all of the proofs, this court is satisfied that plaintiffs have borne their burden.

This conclusion is compelled by the commissioners’ testimony and that o fthe township’s expert witness.

Sirianni, the chairman of the commission, testified that after tentatively calculating the assessment by use of the formula in the manner heretofore described, the commissioners did in fact visually “inspect” each street to assure themselves, first, that the work was done, and second, that all of property owners had thereby received a benefit exceeding the proposed assessment. The commissioners unanimously agreed, he said, that with respect to each property there was a benefit in excess of the assessment so calculated. Each commissioner based this conclusion on his own “judgment,” without consulting any sales or other market data, without attempting to place a dollar amount on the benefit received, without attempting to make a determination of either the before or after market value of the property, without appraisals, without consulting real estate experts (none of the commissioners did in fact have any particular expertise in real estate evaluation), and indeed without any expressed factual support of any kind other than the cost figures themselves.

Case’s testimony was substantially the same, also making clear that as to each property he made the entirely subjective judgment that there was a benefit which exceeded the formula result. He also testified that the proposed assessment was made first and then the visual inspection was conducted to make sure that the proposed assessment did not exceed the benefit. After the commissioners had performed their individual visual inspections, he went on, they met again and agreed in every case that the benefit exceeded the cost and hence reported to the council the assessments precisely as proposed before the inspection. Both commissioners considered to some degree the fact that the property owners had also gotten the benefit of the storm and sanitary sewer work and, in some cases, curb replacement for which they had not been charged as that was done under the ordinance as a general improvement.

The pretrial deposition of Wynn was essentially the same. He, however, was apparently of the opinion that the cost assessed to each owner was necessarily less than the benefit since if each owner had individually contracted to have the portion of the street in front of his property paved, he would have paid a higher cost than his front-foot proportional share of the total job. None of the commissioners, it should be noted, were able to explain the varying unit prices on each street or to relate the variation to benefit other than in cost terms.

Based on this testimony, it is clear that the commissioners were actually relying exclusively on cost factors. This court is satisfied that a completely subjective impression that an assessment does not exceed the benefit cannot constitute compliance with the demands of N. J. S. A. 40:56-26 and 40:56-27, particularly where that subjective impression is gained only after the assessment has been, in effect, predetermined and is sought only for the purpose of chocking it out before it is made final. Clearly, the commissioners’ procedure failed to consider the value of the real estate benefitted, as required by N. J. S. A. 40:56-26, except in the vaguest and most subjective manner. And N. J. S. A. 40:56-27, as noted, requires that the assessment be made both in proportion to and not in excess of the benefit. The commissioners made no apparent attempt to comply with the proportional requirement, apparently believing that they had only to deal with the non-excess requirement. Finally, the commissioners here made no apparent attempt to determine whether use of the front-foot formula fairly or proportionately apportioned the burden among the assessed property owners.

That the commissioners’ method was not only not calculated to produce assessments related to and proportional to the benefit but that it also actual ly failed to produce such assessments is made clear by the testimony of the township’s expert real estate witness, Joseph W. Burek, who was peculiarly familiar with the properties in question, having been involved in the mass appraisal of all properties in the township for purposes of a municipal reassessment made shortly before the local improvement here involved was commenced. Based on his knowledge of the property values in the township thus acquired, on his personal inspection of the properties involved and by reference to available market data, he testified as to the fair market value of each property both before and after the improvement was made. The difference, of course, was the benefit he ascribed as resulting from the improvement. This court accepts Burek’s testimony as reliable, fair, and as correct as such opinion testimony can be. That testimony has been summarized on the table annexed as an appendix hereto, which compiles for each of the 49 properties here involved the assessment, Burek’s opinion of both the before-improvement value and the difference between the before and after value (i. e., the benefit), and the court’s calculation of the percentage relationship between the assessment and the benefit and between the assessment and the before value. As that chart shows, the assessments range from a low of 23.17% to a high of 258.72% of the benefit. Eighteen assessments, more than one-third of those here challenged, exceed the benefit. Although one would expect that each property would probably have approximately the same percentage of increment in value as a result of the street improvement, cf. McQueen v. West New York, supra, the assessments range from .89% to 6.36% of the before-improvement value, a differential of over 700%.

The assessments of the 18 properties which exceed the enhancement value obviously cannot stand. The township argues, among other things, that the other 31 must be affirmed since, as a matter of law, a property owner has no cause for complaint as long as his own assessment does not exceed the benefit. That argument, first, misconstrues the case law on which it relies. A property owner was always able to challenge his assessment on the basis of the inadequacy of other assessments if that inadequacy reulted in his assessment being too high and hence his burden too great. See, e. g., Hills v. Rahway, 29 N. J. Super. 16, 24 (App. Div. 1953); In re Mulberry Street, Newark, supra; 301-302; Schlapfer v. Town of Union, 53 N. J. L. 67, 68 (Sup. Ct. 1890). More significantly, the township’s position ignores the statutory mandate for just, fair and proportional assessments. INTor can the grossly disparate percentage of their respective benefit which the owners of these 31 properties are being called upon to pay be justified on any other-basis. The philosophical and constitutional foundations of the now classic statements of Switz v. Middletown Tp., 23 N. J. 580 (1957), and In re Appeal of Kents, Inc., 34 N. J. 21 (1961), demanding equality of treatment of property owners with respect to general assessments, have no less force with respect to local assessments. Local government in this State demands a great deal, both in financial support and in civic responsibility, from its property owners and residents. The least it owes in return is scrupulous fairness in the manner in which it apportions fiscal burdens. The inequity of the placing of the fiscal burden here is self-evident. It is not enough for the township to say that the assessment does not exceed the benefit. The burden must be proportionately placed as well. Here it was not. Hence none of these assessments can stand.

This court does not intend to suggest that the before and after market value appraisal, the “classical and perfect method”, is the only acceptable basis for determining the special benefit. See McQueen v. West New York, supra 56 N. J. at 24, which approved a method based upon ascertaining a percentage by which the improvement increased the before-improvement value of the property. The court does, however, intend to make clear that in order for the assessment to bear the neecssary nexus to the benefit, the actual benefit must be determined on some rational, factually supported basis, and the cost then distributed in accordance therewith. Cost alone cannot itself constitute the basis of the assessment, and a front-foot formula exclusively dependent on a cost basis is improper.

The court is aware that N. J. S. A. 40:56-54 ordinarily requires that if the attack on the assessment is sustained, the court shall correct the assessment. This provision does not preclude the court, however, in appropriate circumstances, from remanding to the municipality for its reassessment. See, e. g., Ridgewood Country Club v. Paramus, supra 55 N. J. at 70-71. Because the assessment method here employed was based on what this court believes to have been a basic misunderstanding of essential constitutional and statutory requirements, because of the number of properties involved, and because of the various alternative methods which are available for properly making these assessments based on the data already at hand, it is clearly more appropriate for the municipality, guided by the principles here stated, to completely reassess these properties by devising a rational method of determining benefits and apportioning costs than for the court to do so.

The determinations here made inevitably raise questions regarding the viability of the unappealed assessments of the properties involved in this street improvement project. The effect of this decision on those assessments has not been directly raised by any of the parties to this action although, since they were identically made, they clearly suffer from the same defect and would assuredly demonstrate the same fatal disparities as those which were appealed from. N. J. S. A. 40:56-55 authorizes the municipality to correct assessments by resolution even where no appeal has been taken where is manifest error, and it would appear to be a matter of essential fairness for the township to include all properties in its reassessment and to “correct” the unappealed assessments in the manner provided by the statute. Cf. Lehigh Valley R. R. Co. v. Jersey City, supra.

The final matter to be dealt with is plaintiffs’ contention that there should be no assessments at all for the reason that the street improvement program conferred no special benefits on their properties. Their expert witness so testified, stating that the repaving added no increment to market value for the reasons that the special assessment constituted a municipal lien, that the increased speed of traffic to be anticipated on the improved streets was an inevitable and undesirable result of the project, that marketability was not increased by new streets and that curbing does not affect market value. The court, however, is not satisfied either that his opinion or his factual basis therefor (a small group of resales) constitutes evidence, either by a preponderance or clearly and convincingly, that there was no enhancement resulting from the project. On the contrary, the court is satisfied from BureFs testimony and that of the commissioners that the market values were enhanced and some special benefit enjoyed by these properties.

The assessments appealed from are accordingly vacated and the matter remanded to the township for its reassessment.

      The owners of the remaining some 275 properties have not challenged their assessments although they were made in precisely the same manner as those here under attack.

      The plaintiff’s burden of proof bas been variously stated as by a “clear preponderance,” “clear proof of great force,” “clear and cogent,” “cogent,” “clear and convincing.” See, e. g., State, Pudney, pros. v. Village of Passaic, 37 N. J. L. 65, 67 (Sup. Ct. 1877), aff’d o. b. 40 N. J. L. 615 (E. & A. 1878) ; In re Public Service Elec. and Gas Co., 18 N. J. Super. 357, 364 (App. Div. 1952) ; Davis v. Newark, 54 N. J. L. 144, 147 (Sup. Ct. 1891); Maplewood v. Smith, 112 N. J. L. 233, 237 (E. & A. 1933). These are clearly semantical rather than substantive differences. The correct statement of the burden is proof “by clear and convincing evidence.” See Evid. R. 1(4).


source: Caselaw Access Project

author: King, J. C. C., Temporarily Assigned.

license: Public Domain

text:
    STATE OF NEW JERSEY, IN THE INTEREST OF J. J., A JUVENILE.
    Juvenile and Domestic Relations Court Camden County
    February 18, 1975.

      Mr. Robert Aaron Greenberg, Assistant Prosecutor, for the State (Mr. Thomas J. Shusted, Prosecutor of Camden County, attorney).

      Mr. William G. Levine, First Assistant Public Defender, for the juvenile (Mr. Stanley Van Ness. Public Defender, attorney) .
   King, J. C. C., Temporarily Assigned.

The juvenile was charged with the offense of breaking and entering into and larceny from a public school building on January 6, 1974. He appeared in the Camden County Juvenile and Domestic Relations Court at an informal hearing with his parents and without counsel on March 13, 1974 and admitted the allegations charged in the petition. The trial judge adjudicated the juvenile delinquent and placed him on probation for one year. Ilis probation was conditioned upon obtaining entry into the Job Corps and in the interim attending weekly sessions at the probation office.

In July, 1974 a violation of probation was filed against the juvenile because he failed to fulfill the conditions of probation. A hearing on the violation of probation was scheduled. The original hearing court also scheduled a formal hearing on the original breaking and entering and larceny charges and required counsel to be present in the event that if an adjudication of delinquency resulted following formal hearing a disposition of commitment could be entertained as a possible alternative. See R. 5:3-3, In re Gault, 387 U. S. 1, 87 S. Ct. 1428, 18 L. Ed. 2d 527 (1967). The original trial judge then recused himself on his own motion because of his previous familiarity with the matter.

Juvenile now moves before this successor court to dismiss the charges on the ground that a second and formal hearing, with the implication of possible commitment, would violate his rights to due process of law and would place him twice in jeopardy for the same offense, contrary to the State and Federal Constitutions, and the provisions of the statute, N. J. S. A. 2A:4-60. No suggestive or controlling precedent is available for the resolution of this problem.

A similar situation was considered in State in the Interest of G. J., 108 N. J. Super. 186 (App. Div. 1969), cert. den. 55 N. J. 447 (1970). There the juvenile was not represented by counsel in the original informal proceeding at which she was adjudicated delinquent and placed on probation for chronic truancy. Subsequently, juvenile’s absence from school persisted and she was charged with a violation of probation. At a formal hearing with Gault safeguards, including counsel, the court found that her continued truancy from school constituted a probation violation and her disposition wras a commitment to the State Home for Girls. On appeal the juvenile urged that the commitment was illegal because it was based on a violation of probation resulting from her original determination of delinquency occurring at an informal hearing without counsel. The Appellate Division rejected that argument, reasoning that the commitment to the State Home was actually based on a new substantive finding of delinquency resulting from continuing truancy, rather than on a finding of a violation of probation. The fact that the matter came before the court on a violation of probation was not determinative so long as the underlying offense, chronic truancy, was sufficient in itself to support an adjudication and subsequent commitment.

In the present case the alleged violations of probation — failing to obtain entry into the Job Corps and failing to attend weekly counselling sessions as ordered — could not support an independent adjudication of delinquency. The case of G. J. indicates that a court may not commit a juvenile for violation of probation alone, regardless of need for commitment or representation by counsel at the probation violation, if the original probation emanated from an nncounselled informal adjudication. The only possible way this present court may consider all of the options available in the treatment of this juvenile, including commitment or the threat of commitment if probation is not successful, would be to conduct a formal hearing on the original charges with all of the Gault safeguards, including counsel.

The pertinent section of the statu le reads as follows:

All defenses available to an adult charged with a crime, offense or violation shall be available to a juvenile charged with committing an act of delinquency.
All eases arising under this act not referred as provided by sections 7 or 8 shall be heard and decided by the juvenile and domestic relations court without a jury. The right to be secure from unreasonable searches and seizures, the right not to be placed twice in jeopardy for the same offense, and the right of due process of law shall be applicable in cases arising under this act as in cases of persons charged with crime. [N. J. S. A. 2A:4-60]

This provision became effective on March 1, 1974 as part of the so-called “JINS” law (Juveniles In Need of Supervision), N. J. S. A. 2A:4-42 et scq., which concerns jurisdiction and proceedings in the juvenile court. A review of the legislative history available to the court is not enlightening as to any special intent or design to be implied by the inclusion of the proscription against double jeopardy 'in the legislation. In the absence of any special mention the court can only conclude a legislative intent to restate the historic common law and constitutional concept of jeopardy as a reminder that they pertain to our juvenile justice system. This court has no doubt that our State Supreme Court and Federal Supreme Court would find traditional concepts of double jeopardy “selectively incorporated” into a juvenile justice system if faced with the issue, and this court premises its opinion on such an anticipated ruling. The Legislature instructs us in N. J. S. A. 2A:A-42 that the act should be construed to accomplish the following purposes:

a. To preserve the unity of tlie family whenever possible and to provide for the care, protection and wholesome mental and physical development of juveniles coming within the provisions of this act;
b. Consistent with the protection of the public interest, to remove from children committing delinquent acts certain statutory consequences of criminal behavior, and to substitute therefor an adequate program of supervision, care and rehabilitation;
c. To separate juveniles from the family environment only when necessary for their health, safety or welfare or in the interests of public safety.

This expressed intent reveals that the Legislature has retained the traditional view of the juvenile proceeding as a nonadversarial system with the parens patriae goal of treatment and aid to the child, aimed towards rehabilitation as the polestar rather than endowment of the process with punitive and criminal concepts. Some may argue that the distinction is illusory and casuistic, but the enunicated legislative purpose is clear. State in the Interest of Carlos, 48 N. J. 224 (1966), State v. L. N., 109 N. J. Super. 278 (App. Div. 1970), aff'd per cur. 57 N. J. 165 (1970), cert. den. 402 U. S. 1009, 91 S. Ct. 2194, 29 L. Ed. 2d 431 (1971); Comment, 26 Rutgers L. Rev. 358, 361—363 (1973). At the same time, and consistent with the mandate of the United States Supreme Court as expressed by Mr. Justice Eortas in Gault, the Legislature has recognized the necessity for the constitutional domestication of the juvenile proceeding in the observance of due process standards of fundamental fairness. In re Gault, supra (requiring rights of notice, confrontation, counsel and possibly self-incrimination as a prerequisite to commitment); In re Winship, 397 U. S. 358, 90 S.Ct. 1068, 25 L. Ed. 2d 368 (1970) (requiring proof beyond a reasonable doubt); cf. McKeiver v. Pennsylvania, 403 U. S. 528, 91 S. Ct. 1976, 29 L. Ed. 2d 647 (1971) (no right to jury trial). In each instance the Supreme Court approached the juvenile’s assertion of constitutional rights by examining the role and purpose of the particular procedural safeguard within the criminal justice system and then analyzing the effect of imposing that safeguard on the presumed substantive benefits of the juvenile process, i. e., informality, flexibility, confidentiality, speed of processing and opportunity for individual disposition and treatment rather than punishment.

Our New Jersey courts have traditionally followed the same approach, balancing the need lor the protection which the particular procedural right would afford against the effect that right would have on the beneficial aspects of the juvenile process. In State in the Interest of R. W., 115 N. J. Super. 286 (App. Div. 1971), aff’d per cur. 61 N. J. 118 (1972), the court rejected the juvenile’s argument that his confession was inadmissible because he had not been given all of the Miranda warnings. The court stated:

In short, the Miranda rule and its corollaries are not to be mechanically — “ruthlessly” — applied when dealing with juveniles of tender age. We think that instead the test must be whether the juvenile was treated with the utmost fairness and with every consideration that his age and all of the surrounding circumstances indicate should have been accorded him. [at 295 of 115 N. J. Super.]

In State in the Interest of W. O., 100 N. J. Super. 358 (App. Div. 1968), the court could find no' reason why the procedural safeguard of sequestration of witnesses, a valuable device to expose untruthfulness, should not be made available to juvenile defendants. In State in the Interest of J. W., 57 N. J. 144 (1970), decided several months before the United States Supreme Court reached the same result in the McKeiver opinion, the contention for the institution of the jury trial in juvenile proceedings was rejected since it would not materially contribute to the fact-finding function of the court but would seriously limit the court’s ability to function in its uniquely flexible and expeditious manner. See also, State in the Interest of L. B., 99 N. J. Super. 589 (J. D. R. Ct. 1968) (juvenile complaint need not be drawn with same exactitude as criminal complaint); State in the Interest of K. V. N., 116 N. J. Super. 580 (App. Div. 1971), aff’d per cur. 60 N. J. 517 (1972) (no equal protection violation for different treatment of juvenile and adult offenders).

The constitutional and statutory safeguards against double jeopardy assure that the State with its great resources and awesome power will not be permitted to harass and oppress the individual citizen with multiple prosecutions or punishments for the same offense. State v. Currie, 41 N. J. 531, 535 (1964); State v. Sims, 65 N. J. 359, 371 (1974). The Currie decision emphasized that “in applying the prohibition against double jeopardy, the emphasis should be on underlying policies, rather than technicalities. The primary purpose should be# fairness and fullfillment of reasonable expectations in the light of the constitutional and common law goals.” 41 N. J. at 539.

In the present case the elements of harassment and oppression do not appear involved. The initial informal hearing afforded a somewhat minimally restrictive mode of treatment for the situation without any possible exposure to the serious consequence of incarceration. This initial informal hearing approach was not one required of the State but was afforded to the juvenile in the best spirit of parens patriop, hopefully to provide a less harsh remedy to resolve what the initial trial judge sincerely believed to be a budding and potentially serious problem. Certainly in dealing with all juvenile problems the court initially resorts to the least severe and restrictive feasible measure in an effort to find a solution. But that measure did not work here. As a result of the informal adjudication the juvenile was never in danger of a custodial disposition. His exposure to a formal hearing and its potential for an actual or suspended custodial sentence arises not from any capricious, whimsical or malicious activity by the State but from his own failure to fulfill the consensual terms of his probation.

The creation of the two types of hearings, formal and informal (essentially the requirement of counsel distinguishes the two), was an immediate consequence of Gault and was formalized by prior court rule, R. 5:9-1(c)-(e) (1967 rule amended in 1974). The dichotomy has since been deleted from the rules, but the practice continues in effect, both at the adjudicative level as well as at the initial intake level. The informal hearing allows the court to deal with each case in a uniquely flexible, speedy and individualized fashion. This procedure is similar to the pretrial diversionary program under R. 3:28 and the motion-to-suspend-proceeding in controlled dangerous substance possession eases under N. J. S. A. 24:21-27 where the matter is returned to court if the adult offender does not comply with the program. Jeopardy should not attach simply because the State agrees to the less onerous procedure.

Following an informal hearing the court may order any disposition specified in N. J. S. A. 2-A :4-61 except commitment. Subsection (c) enables the court to place a delinquent juvenile on probation for a period not to exceed three years “upon such written conditions as the court deems will aid rehabilitation of the juvenile.” Obviously the court must have some means by which to encourage compliance with the conditions of probation, or the entire process may become farcical and ineffective. To accept juvenile’s position here would be to render the court powerless in its efforts to deal with a potentially serious social problem. Indeed, if further indifference to probation persists, a suspended sentence following a formal adjudication with the realistic alternative of incarceration may in many instances be sufficient to motivate cooperation with the probation program by the otherwise indifferent juvenile. Once the court’s acknowledged impotent posture is publicized through the “grapevine” the entire process of informally adjudicated probation, so often to the benefit of the juvenile and society is jeopardized and demoralized. Havoc could be created in the probation programs presently being utilized; general disrespect or tibe dilution of institutional morale in the probation department could follow.

A finding here in favor of juvenile’s contention of double jeopardy would effectively oust the court of any meaningful jurisdiction over the child and deprive the State of any chance of helping the juvenile unless he commits another serious offense. This approach is not consistent with the historical philosophy of the juvenile court or the legislative intent. An institutional result would be the requirement of formal hearings in all cases in order to insure the meaningful enforcement of probation in the few where such enforcement is necessary. The court does not feel that compelling the juvenile to appear now at a first formal hearing, protected by the safeguards of Gault and its progeny, violates any fundamental right of the juvenile. Certainly any inculpatory statements made by the juvenile at the initial uncounselled informal hearing would not be admissible at the formal hearing. Cf. State v. Boone, 66 N. J. 38 (1974). On balance, the interests of the juvenile are well protected at all stages by this result.

It should be added that if the juvenile desires to urge prejudice as a result of a delay in his formal adjudicative hearing, this court will be alert to his contentions and give consideration to such an application within the confines of the principles as stated in Barker v. Wingo, 407 U. S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972); State v. Davis, 131 N. J. Super. 484 (App. Div. 1974), and State v. Smith, 131 N. J. Super. 354 (App. Div. 1974), insofar as they relate to the juvenile justice system. Motion to dismiss is denied and the matter will be promptly listed for a formal hearing before a judge unacquainted with the matter.


author: Pek (Juhiam.

text:
    FRANK CAPASSO, t/a CAPASSO BROS., AND ROBERT LAUDATI, PLAINTIFFS-RESPONDENTS, v. L. PUCILLO & SONS, INC. AND THE TOWN OF BELLEVILLE, DEFENDANTS-APPELLANTS. RICHARD W. DILL AND JAMES PETROZELLO CO., INC., A NEW JERSEY CORPORATION, PLAINTIFFS-RESPONDENTS, v. TOWN OF BELLEVILLE AND THE BOARD OF COMMISSIONERS OF THE TOWN OF BELLEVILLE AND L. PUCILLO & SONS, INC., DEFENDANTS-APPELLANTS.
    Superior Court of New Jersey Appellate Division
    Argued June 4, 1974
    Decided June 28, 1974.

      Before Judges Kolovsicy, Futtz and Cju.ve.

      Mr. Marie I). Lamer argued the cause for appellants (Messrs. Budd, Lamer, Kent, Gross Ac Picillo, attorneys for appellant L. Puoillo & Sous, Inc.; Mr. John B. Scott, attorney for appellant Town of Belleville).

      Mr. David Samson argued the cause for respondents (Messrs. Lied, Wolff & Samson, attorneys).
   Pek (Juhiam.

The judgment is affirmed substantially for the reasons set forth by Judge Kimmelman in his opinion, to which we add the following comments.

There is no merit to defendants’ contention that the Legislature, by enacting the Local Public Contracts Law, L. 1971, c. 198; N. J. S. A. 40A:11-1 et seq., impliedly repealed N. J. S. A. 40 :66-4 which provides in pertinent part that:

The governing body [of a municipality] may * * * contract with any person for * * * the collection, removal and disposal of ashes, garbage, refuse and waste matter or any portion thereof. Before making any such contract or contracts the governing body shall first adopt specifications for tlie doing of the work in a sanitary and inoffensive manner, and any such contract or contracts the amount of which exceeds $2,500.00 shall be entered into and made only after bids shall have been advertised therefor, and awarded in the manner provided in chapter 50 of this Title (§ 40:50-1 et seq.).

As the court said in Henninger v. Bergen Cty. Bd. of Chosen Freeholders, 3 N. J. 68 (1949) :

s- * * Repeals by implication are not favored in the law. In the absence of an express repealer indication of an intention of the Legislature to repeal a prior act must be clear and compelling. There is a strong presumption against such an intention, [at 71]

Further, the fact that Local Public Contracts Law, while expressly repealing in N. J. S. A. 40A:11-38 a number of pre-existing statutes relating to public contracts, did not include N. J. S. A. 40:66-4 among the sections so repealed is cogent evidence that there was no legislative intent to repeal it by implication. Swede v. Clifton, 22 N. J. 303, 317 (1956).

We find without substance defendants’ contention that the fact that N. J. S. A. 40:50-1 to 40:50-5 and 40:50-7, which are referred to in N. J. S. A. 40:66-4, were expressly repealed by the Local Public Contracts Law, see N. J. S. A. 40A:11-38, somehow affects the continued viability of N. J. S. A. 40:66-4. The Local Public Contracts Law is a revision embodying and corresponding in substance with the provisions of the former law. It repeats in its pertinent aspects what had theretofore appeared in the repealed sections of Article 50 of Title 40, thus calling for application of N. J. S. A. 1 :1-3.3 which provides :

Any reference in any statute to any other statute, which is revised by a revision law, shall, after the effective date of such revision, law, be construed to be a reference to the section or sections, if any, of the revision law corresponding in substance to, or superseding, the section or sections of the statute so revised and so referred to.

In view of the last quoted statute, N. J. S. A, 40:66-4 is to be construed so that its provisions relating to the award of a contract in excess of $2500 for the collection of refuse will read as follows:

* * * any such contract * * * shall be entered into and made only after bids shall have been advertised therefor, and awarded in the manner provided in [the Local Public Contracts Law, N. J. S. A. 40A :11-1 et seq.] * * *.

Finally, as Judge Kimmelman’s opinion demonstrates, there is no validity to defendants’ argument that the award of the contract by Belleville to Pucillo without public bidding was authorized by the exception found in N. J. S. A. 40A:11-5(1) (h) which reads in pertinent part:

Any * * * contract * * * of the character described in [N. J. S. A. 40A:11-4 relating to contracts over $2500] may be made, negotiated or awarded without public advertising for bids and bidding therefor if (1) The subject matter thereof consists of
Sh 5*8 *
(h) The supplying of any product or the rendering of any service by a public utility, which is subject to the jurisdiction of the Board of Public Utility Commissioners, in accordance with tariffs and schedules of charges made, charged or exacted, filed with said board.

The fact that persons or corporations engaged in solid waste collection or disposal are now deemed to be public utilities (see the Solid Waste Utility Control Act of 1970, N. J. S. A. 48:13A-1 et seq. and N. J. S. A. 48:2-13), subject to the jurisdiction of the Board of Public Utility Commissioners, is not dispositive. The statutory exception applies to services rendered by a public utility only where they are rendered “in accordance with tariffs and schedules of charges made, charged or exacted, filed with said board.” Pucillo had not filed a schedule of tariffs and charges with the board, let alone having the schedule approved by the board.

It is evident from the very language of the statutory exception that the contract here involved is not excepted from the bidding requirements of N. J. S. A. 40A:11-4 merely because Pucillo is now a public utility subject to the jurisdiction of the Public Utility Commission. Further, a review of the pertinent legislative history of the statutory exception — a history which may “freely” be resorted to ascertain the “true sense and meaning of the language used,” Dept. of Health v. Sol Schnoll Dressed Poultry Co., 102 N. J. Super. 172, 176 (App. Div. 1968) — demonstrates that the legislative purpose was to limit the application of the exception to eases of services furnished by public utilities where advertising and competitive bidding served no purpose because the charges to be made were controlled by a schedule of tariffs filed with and approved by the Public Utility Commission.

The statutory exception first came into our law in 1957 by the adoption of an amendment (L. 1957, c. 209) to N. J. S. A. 40:50-1. L. 1957, c. 209 was enacted only after the Legislature had adopted the changes in the bill (Assembly No. 407) recommended in Governor Meyner’s conditional veto of that bill. Veto messages of Governor Robert B. Meyner, 1957, at 10.

The original bill, which had annexed thereto a statement reading as follows:

The object of this bill is to eliminate the requirement of advertising for bids by municipalities as a prerequisite to contracts with public utilities subject to the jurisdiction of the Board of Public Utility Commissioners. As to such utilities, the possibility of competitive bidding does not generally exist; furthermore, their rates and charges are subject to regulation by the Board of Public Utility Commissioners. Therefore, the requirement of advertising for bids in such cases is meaningless and causes needless formality and expense,

had provided that advertising should not be required

where the contract to be entered into is one with a public utility subject to the jurisdiction of the Board of Public Utility Commissioners of this State.

Had the bill been enacted into law in that form there would be substantial support for defendants’ argument in this ease. But it was not, the Legislature finding persuasive the following reasons stated by the Governor for the changes recommended by him, which were then incorporated by amendment to read as the statute now appears:

I am advised that the purpose of the sponsors of this bill was to clarify the advertising requirement where the service to be contracted for is the furnishing of electric, gas or similar service by a public utility authorized to furnish such service in the area, because in such case, since the rates charged are filed with the Board of Pub-lie Utility Commissioners, advertising for bids serves no useful purpose and causes needless expense.
But the amendatory language in the bill would have a scope and effect beyond that intended. It would eliminate the advertising requirement in eases where the articles to be furnished or the service to be rendered are properly the subject of competitive bidding, merely because the contract is entered into with a public utility.

The judgment is affirmed.


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

text:
    PIED PIPER ICE CREAM, INC., A NEW JERSEY CORPORATION, PLAINTIFF-APPELLANT, v. ESSEX COUNTY PARK COMMISSION, A BODY POLITIC OF NEW JERSEY, AND GOOD HUMOR CORP., INC., DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued February 3, 1975
    Decided February 20, 1975.

      Before Judges Leonard, Seidman and Bischoee.

      Mr. Adrian M. Unger argued the cause for appellant (Messrs. Milton M. and Adrian M. Unger, attorneys; Mr. Jacio J. Steelier on the brief).

      Mr. John J. McDonough argued the cause for respondent Essex County Park Commission (Mr. Lawrence Koenig on the brief).
   The opinion of the court was delivered by

Leonard, P. J. A. D.

Plaintiff in this action in lieu of prerogative writs seeks to set aside a resolution of defendant Essex County Park Commission (Commission), dated March 14, 1973, awarding defendant Good Humor Corporation (Good Humor) the right to sell ice cream and related refreshments throughout the Essex County Park system and to declare null and void the March 30, 1973 contract entered into between them pursuant to said resolution.

The factual and procedural background is fully set forth in the opinion of the trial court reported at 126 N. J. Su per. 301 (Law Div. 1974), and no useful purpose will be served by a full repetition thereof. We merely note that the record indicates that the Commission received informal bids from plaintiff and Good Humor. The former offered to pay 16% commission of gross sales and the latter 13^2%. The Commission, following a “review and evaluation” by its superintendent of recreation and his assistant, determined that Good Humor “would best serve the needs of the Commission and the public.” Accordingly, Good Humor’s proposal was accepted and a three-year contract was awarded to it. Plaintiff’s request for a Commission hearing was denied.

Following a trial upon stipulations, affidavits, depositions, exhibits and memoranda of law, plaintiff appeals from a judgment of dismissal of its action.

The central issues involved on this appeal are (1) whether the Local Public Contracts Law (N. J. S. A. 40A:11-1 et seq.) applies to the Commission, and (2) if it does, whether this law is applicable to the instant contract.

Section 3 of the law (N. J. S. A. 40A:11-3) provides that “a contracting unit” may make, negotiate or award a contract, as therein described, which does not exceed in the aggregate the sum $3500 in a fiscal year, without public advertising for bids and bidding therefor. On the other hand, § 4 (N. J. S. A. 40A:11-4) mandates that every such contract, not included in § 3, “shall be made or awarded only after public advertising for bids and bidding therefor.”

Section 3 (N. J. S. A. 40A:11-3) of the law includes among “Definitions” the following:

(1) “Contracting Unit” means
(e) Any board, commission * * department, branch, * * “ of any county * * *.

It is conceded that the Commission was created pursuant to N. J. S. A. 40:37-96 to 174 and that it consists of five members appointed by the Essex County Board of Freeholders. Thus, we find that it is a “contracting unit,” as above defined, and it is bound by the compulsory bidding provisions of the Local Public Contracts Law. Cf. Harms Exc. Co. v. Monroe Tp. Mun. Util. Auth., 118 N. J. Super. 496 (Law Div. 1972).

Next we consider Commission’s contention that these compulsory bidding provisions of the Local Public Contracts Law are not applicable to the instant contract. It rests its position upon the arguments that (1) it is not contracting for the performance of any work, or the furnishing or hiring of any materials or supplies, the cost of which is to be paid with or out of public funds; (2) the sale of ice cream products to the public in the park system is a discretionary endeavor and is not one that the Commission is legally obligated to perform by virtue of its police powers, and (3) § 5(1) (f) (N. J. S. A. 40A:11-5) excepts from the compulsory bidding provisions any contract or agreement if the subject matter thereof consists of 'the “purchase of perishable foods as a subsistance supply.” This contention and the arguments raised in support thereof are without merit.

At the outset it is to be noted that the statutory policy of the Local Public Contracts Law (N. J. S. A. 40A: 11-1 et seq.) is identical to its predecessor, N. J. S. A. 40: 50-1 et seq., in that the purpose of bidding is to benefit the taxpayer by securing competition and guarding against favoritism, improvidence, extravagance or corruption. Young v. West Orange Redev. Agency, 125 N. J. Super. 440, 443 (App. Div. 1973). The application and construction of this statute should be such as to further, not frustrate, the legislative goals in establishing competitive bidding. Id.

Kurman v. Newark, 124 N. J. Super. 89 (App. Div.), certif. den. 63 N. J. 562 (1973), involved the awarding of a contract by Newark to a private company for the removal from the public streets and the storage of stolen or abandoned motor vehicles. The contractor’s compensation would come from those reclaiming the vehicle or from an auction sale of the vehicles.. We held that the Local Public Contracts Law was applicable to that contract even though there would be no expenditure of public funds, since Newark would be receiving money and not paying any out. In so holding we said, “Simply because Newark by virtue of the proposed contract is passing that charge onto the owner, does not alter the basic fact that the work is being performed for Newark by the contractor.” Id. 124 N. J. Super, at 93.

Likewise, in Schnell v. Millburn, 127 N. J. Super. 155 (App. Div.), aff'd 66 N. J. 137 (1974), we held that the compulsory bidding act applied to a municipal contract with a private company for the installation and maintenance of an alarm panel in the municipal police department, even though the cost thereof was to be paid by the contractor, which in turn would recover the same plus an anticipated profit from payments made by individual subscribers to the system. In making this determination the court said:

To argue that it is within the power of the municipality to provide the convenience and added protection of burglar alarm panels, and that because the municipality is in nowise obligated to provide this service or convenience it is therefore exempt from the requirement of competitive bidding, is to ignore the reason for the existence of competitive bidding. If the purpose of competitive bidding is to guard against favoritism, improvidence, extravagance and corruption, Hillside v. Stermin, 25 N. J. 317, 322 (1957), we fail to see why the fact that the service to be performed by a private contractor is not required by law to be performed by the municipality should exempt it from the competitive bidding requirements of H. J. S. A. 40:48-5 when the cost of the service is passed directly to the consumer and not paid directly out of the municipal treasury. It seems apparent that the same problems as those sought to be prevented or controlled by the Legislature with respect to mandatory services would as readily arise with respect to discretionary services. [127 N. J. Super. at 159, emphasis supplied]

Thus, even though the supplying of ice cream products is a discretionary service and not one that the Commission is obligated to perform, it is our opinion that the Local Public Contracts Law (N. J. S. A. 40A:11-4) mandates that a contract to perform such service may only be awarded to the highest bidder after public advertising for bids and bidding therefor. Furthermore, the Commission may reject the highest bid only after affording a hearing to the highest bidder and finding upon the basis of the evidence adduced thereat that said bidder is not “responsible.” Stamato & Co., Inc. v. Vernon Tp., 131 N. J. Super. 151, 156 (App. Div. 1974).

Although some of the earlier cases seemingly confine “police power” to such regulations as are needful for the public health, the public safety and the public morals, such measures as are fairly requisite for the “public convenience” and the “general prosperity” are now considered within that category. Schmidt v. Bd. of Adjustment, 9 N. J. 405, 415 (1952). Thus, in furtherance of the legislative goals in establishing public bidding, we hold that the service to be rendered in the instant ease is one which is within that broad concept of “police power.”

Finally, we find that N. J. S. A. 40A:11-5(1) (f) is inapplicable.

Based upon the above, we conclude that the procedure utilized by the Commission for the receipt of bids from plaintiff and Good Humor was contrary to law and that the contract awarded by it pursuant thereto to Good Humor is null and void. In the event the Commission desires to award a new contract for the sale of ice cream products within the park system, it shall do so in full accordance with the provisions of the Local Public Contracts Law (N. J. S. A. 40A: 11-4).

Accordingly, the judgment entered in favor of the Commission and Good Humor is reversed and the matter is remanded to the trial court for the entry of a judgment in accordance herewith.


author: Lora, J. A. D.

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. RAYMOND BLOW, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued February 18, 1975
    Decided February 27, 1975.
    Before Judges Collester, Loba and Handler.

      Ms. Randall W. Westreich, Assistant Deputy Public Defender, argued the cause for appellant (Mr. Stanley C. Van Ness, Public Defender, attorney).

      Mr. Solomon Rosengartem, Deputy Attorney General, argued the cause for respondent (Mr. William F. Hyland, Attorney General of New Jersey, attorney).
   The opinion of the court was delivered by

Lora, J. A. D.

Defendant Raymond Blow was indicted for armed robber, in violation of N. J. S. A. 2A :141-1 and 2A:151-5. He was convicted of the lesser included offense of larceny from the person, a violation of N. J. S. A. 2A: 119-1.

On appeal defendant contends that the trial judge improperly charged larceny from the person because the $160 he admitted stealing was not taken from complainant’s person but from beneath the car seat upon which the victim was seated. It further contends that depending on whose testimony the jury believed he could only be found guilty of either armed robbery or the disorderly persons offense of stealing money, a violation of N. J. S. A. 2A:170-30.1.

When complainant stopped his vehicle in downtown Paterson defendant asked him for a ride. Defendant, who described himself as a transvestite, was dressed in women’s clothing at the time. Complainant testified that defendant refused to leave the car when it reached defendant’s specified destination, but instead pulled a knife from his purse and demanded money. Complainant attempted to secrete most of his cash beneath the driver’s seat, but defendant detected him doing so and removed the money.

Defendant denied using a knife during the encounter. Instead, he asserted that the money was taken from beneath the driver’s seat while he and complainant were engaged in sexual activity.

The phrase, “from the person”, contained in N. J. S. A. 2A :119-1, has not heretofore been interpreted by the courts of this State. Defendant argues for a literal interpretation of the phrase which would restrict the high misdemeanor offense to cases in which money, goods or chattels are taken or stolen from the physical person of the victim. The State contends that the broader interpretation given the identical phrase in the robbery statute, N. J. S. A. 2A:141-1, should be applied to larceny from the person. Our courts have interpreted the phrase “from the person * * * of another,” as used in the robbery statute, “to include the taking of personalty from the custody of, or from the constructive possession of, or which is subject to the protection of, another.” State v. Butler, 27 N. J. 560, 589 (1958); State v. Grillo, 11 N. J. 173, 187 (1952); State v. Cottone, 52 N. J. Super. 316, 323 (App. Div. 1958), certif. den. 28 N. J. 527 (1959) ; State v. Culver, 109 N. J. Super. 108, 111 (App. Div. 1970) .

We have considered the out-of-state authorities cited by defendant, together with the factual situations presented therein and the statutory schemes upon which the decisions were based. State v. Lucero, 28 Utah 2d 61, 498 P. 2d 350 (Sup. Ct. 1970), -where defendant took the complainant’s purse which was resting 18 inches away from her and atop a tavern bar, and People v. McElroy, 116 Cal. 583, 48 P. 718 (Sup. Ct. 1897), where complainant had rolled up his trousers and placed them under his head as a pillow and during the night defendant removed $17 from a pocket of the trousers, arose under statutes in which robbery was defined as a taking from the person or his immediate presence. Larceny was defined as a taking from the person. Prom this difference in phraseology the courts derived a legislative intention to more severely limit the ambit of the larceny from the person statute. This distinction does not exist in New Jerser.

While Wilder v. State, 30 Ala. App. 107, 1 So. 2d 317 (Ct. App. 1941), and Terral v. State, 84 Nev. 412, 442 P. 2d 465 (Sup. Ct. 1968), cannot be distinguished on the same basis, both those cases involved factual situations differing from that presented in the case before us, and we are unpersuaded by their reasoning. In Wilder the grabbing of a purse from an empty adjoining seat in a movie theater by one seated behind the owner thereof was held not to be larceny from the person, the court holding the property stolen must be “actually on or attached to the person by his clothing or otherwise, or ... in some manner in his actual physical possession.” The court reasoned that the statute was designed to protect people from the approach of the pickpocket or purse snatcher, as opposed to the act of theft. Terral considered the gravamen of the offense to be the violation of the person and privacy of another. Terra! had taken $250 in gaming tokens from a rack on a gaming table immediately in front of the victim. It was held that defendant could not be found guilty of larceny from the person when the chips were merely taken from his victim’s presence.

The definition of “from the person” must, of necessity, limit the area within which larceny will be punished as a high misdemeanor. However, we do not agree that the Legislature intended the phrase “from the person” to mean from the physical person of the victim. Rather, we are of the view that to constitute larceny “from the person” it is sufficient if the property is taken while in his possession and immediate presence. Banks v. State, 74 Ga. App. 449, 40 S. E. 2d 103 (Ct. App. 1946).

In Banks complainant, defendant, and two women shared a room for the night. Complainant placed his wallet under the pillow on which he slept. During the night defendant removed the wallet. In holding that defendant could be found guilty of larceny from the person the court relied upon cases which construed the phrase “from the person” in a since-amended robbery statute. At the time of decision the robbery statute had been amended to include articles taken from the person or presence of his victim. The presence of force or intimidation in a case of robbery was deemed the only distinction. It was, therefore, “unnecessary that the taking of the property should be directly from one’s person, but is sufficient if it be taken while in his possession and immediate presence.” Id., 40 S. E. 2d at 106.

Here the currency defendant admitted stealing was within the victim’s immediate control. A danger of confrontation between thief and victim was present and the victim’s person and privacy were invaded. People v. McElroy, supra 48 P. at 718. See Commonwealth v. Subilosky, 352 Mass. 153, 224 N. E. 2d 197 (Sup. Jud. Ct. 1967); English v. State, 219 Tenn. 568, 411 S. W. 2d 702 (Sup. Ct. 1966), cert. den. 387 U. S. 921, 87 S. Ct. 2038, 18 L. Ed. 2d 977 (1967); State v. Kobylasz, 242 Towa 1161, 47 N. W. 2d 167 (Sup. Ct. 1951) ; Mack v. State, 465 S. W. 2d 941 (Texas Cr. App. 1971). Cf. State v. Danziger, 121 N. J. Super. 44 (App. Div. 1972), in which defendants’ convictions under N. J. S. A. 2A:170-3 of having offensive or dangerous weapons upon them with intent to assault were sustained although the language of the statute uses the phrase “upon him” and the weapons were within reach and immediately available for assault.

We conclude that larceny from the person includes the theft of money, goods or chattels which are within the immediate custody and control of the victim. Accordingly, on the facts of this case it was not error to charge on the statute.


author: Pjsk Cttkiam.

text:
    GEORGE A. ORAM, JR. AND KATHRYN ORAM, PLAINTIFFS-APPELLANTS, v. NEW JERSEY BELL TELEPHONE COMPANY, A CORPORATION OF THE STATE OF NEW JERSEY, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued February 18, 1975
    Decided February 28, 1975.

      Before Judges Michels, Mokgah and Ckane.

      Mr. George J. 8hamy argued the cause for appellants (Mr. Gerald, Gordon on the brief).

      Mr. Stephen L. Abbott argued the cause for respondent (Messrs. Toolan, Romond, Abbott & Bomenicheiti, attorneys) .
   Pjsk Cttkiam.

Plaintiffs, passengers in an automobile which collided with a telephone pole located two feet from the travelled portion of Route 27 in Eranklin Township, New Jersey, appeal from an order granting summary judgment in favor of defendant New Jersey Bell Telephone Company.

The facts concerning the happening of this accident are free from dispute. The automobile in which plaintiffs were seated was proceeding south in the right-hand lane of Route 27, a four-lane highway, with two lanes in each direction. The paved portion of the roadway is 46 feet wide and the posted speed limit is 50 mph. The right of way is 60 feet wide. An unknown vehicle, also travelling south, but to the left of plaintiffs’ vehicle, forced the latter off the roadway where it struck utility pole #61258 on its left front and left side.

Plaintiffs contend that the defendant was negligent in locating its utility pole approximately two feet from the travelled portion of Route 27 which in the area of the collision has no shoulder or curb, and represented that expert testimony would be submitted to support this contention. Defendant, on the other hand, denies its negligence and further contends that the admitted facts disclose that the location of the utility pole could not, as a matter of law, have been the proximate cause of the accident.

The trial judge concluded that the admitted facts negated the possibility of any actionable negligence on the part of the defendant. We agree.

It is admitted that the left front and left side of plaintiffs’ vehicle collided with the pole in question. Thus, even had the pole been located more than two feet from the travelled portion of Route 27, a collision therewith would nonetheless have happened. In 4 Blashfield Automobile Law (3 ed. 1965), § 163.22 at 399, it is stated:

The placing of a pole too near the highway is not the proximate canse of an injury which resulted when the pole was struck by the left side of a ear since, under the circumstances, the pole would have been struck by the ear even if it were an additional four or five feet from the road.

See also, Kulas v. Public Service Elec, and Gas Co., 41 N. J. 311 (1964).

Moreover, we agree with, the conclusion of the trial judge that the undisputed facts disclose an absence of actionable negligence on the part of defendant in its placement of the utility pole in question. No telegraph or telephone company may erect utility poles upon, along, over or under any public road, street or highway without first obtaining permission by ordinance or resolution from the governing body of the municipality in which it is to be located, N. J. S. A. 48:17-9. As noted in N. J. S. A. 48:17-11:

They shall be located and constructed according to a plan showing the location, number and size of the poles, conduits and other fixtures to be approved by the governing body or board of freeholders before any work is begun. They shall be so placed as not to interfere with the safety or convenience of persons or vehicles traveling on any such street, road or highway.

A telephone company is thus not a free agent in the placement of its utility poles along a public road but must conform to the dictates of a local governing body expressed by way of ordinance with respect to the location of such poles.

Apart from this, however, a telephone company is under no obligation of guarding against extraordinary exigencies created when a vehicle leaves the travelled portion of a roadway out of control. Monaco v. Comfort Bus Lines, Inc., 134 N. J. L. 553 (E. & A. 1946). It need only anticipate ordinary travel which “contemplates an automobile being driven and kept on the roadway.” Monaco v. Comfort Bus Lines, Inc., supra at 557. To require a telephone company to anticipate extraordinary occurrences, such as the one which gave rise to this accident, would be to require it to exercise extraordinary rather than ordinary care to prevent injuries. The duty imposed, however, is to provide for the usual and ordinary risks of travel. Monaco v. Comfort Bus Lines, Inc., supra.

Even with respect to obstructions intruding into the right of way, courts have not always found a suitable basis for liability. In Lorentz v. Public Service Ry. Co., 103 N. J. L. 104, 109 (E. & A. 1926), plaintiff’s driver struck the supporting column of an elevated railway located within the boundaries of the paved roadway. In affirming the dismissal of the complaint, the court stated:

Structures of this kind, authorized by law and used to facilitate public travel, although they are physical obstructions to drivers of ordinary vehicles and perhaps to pedestrians, are, nevertheless not nuisances, and the public must take notice of them.

See also, Murphy v. Asbury Park, 139 F. 2d 888 (3 Cir. 1944), cert. den. 322 U. S. 735, 64 S. Ct. 23, 88 L. Ed. 1569 (1944), and Delaware L. and W. R. Co. v. Chiara, 95 F. 2d 663 (3 Cir. 1938), cert. den. 305 U. S. 609, 59 S. Ct. 68, 83 L. Ed. 387 (1938), both of which involved collisions with concrete structures located within the right of way.

In the recent case of Southern Bell Telephone and Telegraph Co. v. Martin, 229 Ga. 881, 194 S. E. 2d 910 (Sup. Ct. 1972), the court affirmed an order granting the defendant summary judgment in a suit instituted by a passenger injured when the vehicle in which she was riding collided with a telephone pole located outside the travelled portion of the road. The court noted that had the car remained on the road reserved for vehicular traffic, the accident would not have happend. See also, Mattucci v. Ohio Edison Co., 79 Ohio App. 367, 73 N. E. 2d 809 (Ct. App. 1946); Wood v. Carolina Tel. and Tel. Co., 228 N. C. 605, 46 S. E. 2d 717 (Sup. Ct. 1948) ; 3 A. L. R. 2d 6.

TTe therefore conclude that defendant could not have been held liable for locating its utility pole two feet from the travelled portion of Boute 27 and that the trial judge properly granted defendant’s motion for summary judgment.

Affirmed.


author: Michels, J. A. D.

text:
    BETHLEHEM STEEL CORPORATION, A CORPORATION OF THE STATE OF DELAWARE, PLAINTIFF-RESPONDENT, v. K. L. O. WELDING ERECTORS, INC., A CORPORATION OF THE STATE OF NEW JERSEY, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued December 9, 1974
    Decided February 28, 1975.

      Before Judges Michels, Morgan and Milmed.

      Mr. Charles W. Hutchinson argued the cause for appellant {Messrs. Lamb, Hutchinson, Thompson & Chappell, attorneys) .

      Mr. John M. Walsh argued the cause for respondent {Messrs. Schumann, Hession, Kennelty & Dorment, attorneys).
   The opinion of the court was delivered by

Michels, J. A. D.

Defendant K. L. 0. Welding Erectors, Inc. appeals from a summary judgment in favor of plaintiff Bethlehem Steel Corporation determining that it is liable for reasonable attorneys’ fees and costs incurred by plaintiff in successfully defending a wrongful death action instituted by the administratrix ad prosequendum of the estate of Stephen Gallas, one of defendant’s employees.

W. R. Grace & Company (Grace) entered into a contract with plaintiff for the construction by plaintiff of a steel water storage tank at Grace’s chemical plant in Fords, New Jersey. Plaintiff subcontracted the construction of the tank to defendant. During the course of the tank’s construction it was necessary for defendant to use its crane in order to lift steel plates into position. Gallas was fatally injured while assisting a co-worker in replacing the crane’s boom cable when the boom accidentally came in contact with overhead wires carrying highly dangerous current.

The administratrix sued Public Service Electric and Gas Company, Grace and plaintiff to recover for the pecuniary loss suffered by her and her four children as a result of the death of her husband. Plaintiff immediately tendered the defense of the suit to defendant’s insurance carrier, Aetna Casualty and Surety Company, which refused to defend the suit in plaintiff’s behalf. The defense of the suit was then tendered directly to defendant. Upon defendant’s refusal to defend the action, plaintiff retained counsel and successfully defended the suit both at trial and oh appeal. See Gallas v. Public Service Electric and Gas Co., 106 N. J. Super. 527 (App. Div. 1969), aff’d in part and rev'd in part 56 N. J. 101 (1970).

Plaintiff then instituted this action against defendant to recover the attorneys’ fees and costs incurred in defending the wrongful death action under the indemnity provision of its contract with defendant, which in pertinent part provided :

* * * The Contractor shall likewise be solely responsible for and indemnify and hold harmless each of the Bethlehem Companies against and from any and all loss or liability in respect of injuries to or death of any employee, * * *' of the Contractor or any of its subcontractors, while engaged in the Work or while in, on or near the site thereof, or in, on, or near the premises of any of the Bethlehem Companies, however such injuries or death may be caused, and whether or not the same may have been caused or may be alleged to have been caused by the negligence of the Company or of any other of the Bethlehem Companies or of the employees of any of them or by the condition of the premises or otherwise or as a result of any alleged breach of any statutory duty or obligation on the part of the Company or of any other of the Bethlehem Companies or of the employees of any of them.

On cross-motions for summary judgment the trial judge held that a realistic assessment of the language “any and all loss or liability” must be read to include counsel fees and costs incurred by plaintiff in successfully defending the prior wrongful death action and entered summary judgment in plaintiff’s favor.

Defendant appeals, contending that it was not under any contractual obligation to indemnify plaintiff for counsel fees and costs incurred in successfully defending the wrongful death action instituted against it. Defendant contends that the indemnity agreement should be strictly construed and the language thereof does not provide indemnity for such legal expenses. Defendant suggests that since it only agreed to indemnify plaintiff against loss or liability, its obligation does not come into existence until plaintiff’s liability has been established by judgment and the amount of the loss by actual payment.

A contract of indemnity is to be interpreted in accordance with the rules governing the construction of contracts generally. The fundamental rule in construing contracts calls for the ascertainment of the intention of the parties in the light not only of the language used, but also of the surrounding circumstances and the objects sought to be attained by them under their agreement. See Cozzi v. Owens Corning Fiber Glass Corp., 63 N. J. Super. 117, 121 (App. Div. 1960); Stern v. Larocca, 49 N. J. Super. 496, 501 (App. Div. 1958); Longi v. Raymond-Commerce Corp., 34 N. J. Super. 593, 603 (App. Div. 1955). As stated in George M. Brewster Son v. Catalytic Const. Co., 17 N. J. 20 (1954),. in the case of an integrated contract.

[the judicial quest] is for the reasonably certain meaning of the language used, taken as an entirety, considering the situation of the parties, the attendant circumstances, the operative usages and practices, and the objects the parties were striving to achieve. * * * [T]he chosen words and phrases are to be realistically assessed, in relation to the context and the obvious general purpose of the compact, for the meaning that is reasonably clear, such as is within the reasonable understanding of the symbols of expression. In this, we find the true standard if the function of interpretation is to be fulfilled. [at 82]

Applying these principles to the contract here under consideration, we are of the view that it may reasonably be inferred that the parties intended that attorneys’ fees and costs would be subject to indemnification under the contract. An intent on the part of defendant to provide complete and full indemnity to plaintiff for “any and all loss or liability” by Teason of death, personal injury or property damage arising out of tlio construction work or occurring on the job site regardless of the cause thereof or the legal responsibility therefor is unequivocally spelled out in the contract and the objectives contained therein. The very words “any and all” stress the breadth of the indemnity provision and compel the conclusion that legal expenses would be considered a “loss” within the contract.

When plaintiff undertook the defense of the prior wrongful death action after defendant and its insurance carrier refused to do so, it was actually for the sole- benefit of defendant. In the event that a judgment had been recovered against plaintiff in that action, defendant would unquestionably. have been liable to indemnify and hold plaintiff harmless therefrom. The loss sustained by plaintiff would include not only the amount of the judgment but reasonable attorneys’ fees and expenses incurred in defending the action. See Frommeyer v. L. & R. Construction Co., 261 F. 2d 879, 881 (3 Cir. 1958); Miller and Company of Birmingham, Inc. v. Louisville & N. R. R. R. Co., 328 F. 2d 73, 78 (5 Cir. 1964), cert. den. 377 U. S. 966, 184 S. Ct. 1648, 12 L. Ed. 2d 737 (1964). See also, 41 Am. Jur. 2d, Indemnity, § 36 at 726, where the rule is stated as follows:

As a general rule, and unless the indemnity contract provides otherwise, an indemnitee is entitled to recover, as part of the damages, reasonable attorneys’ fees, although there is some authority to the contrary. '* * *

-If counsel fees and costs constitute a part of plaintiff’s damages where a judgment is recovered, it follows that counsel fees and costs constitute a “loss” where the action is successfully defended. Thus, in Thermoid Co. v. Consolidated Products Co., Inc., 7 N. J. 283, 290 (1951), our Supreme Court construed a hold harmless- agreement which did not expressly provide indemnification for legal expenses to include such expenses incurred by the indemnity in the successful defense of a suit within the scope of the agreement, stating:

* * * The plaintiff’s action in defending the Alumbaugh suit was thus for the benefit of the defendant alone, and it is only reasonable that the parties in using the words “We will hold you harmless from any such claims” contemplated the expenses of defending such a suit as well as the possibility that a judgment for brokerage fees might have gone against the plaintiff.

But cf., Queen City Coach Co. v. Lumberton Coach Co., 229 N. C. 534, 50 S. E. 2d 288 (Sup. Ct. 1948).

Accordingly, the summary judgment of liability in favor of plaintiff is affirmed.