author: Larner, A. J. S. C.

text:
    TONSORIAL INCORPORATED t/a THE ODYSSEY, PLAINTIFF, v. THE CITY OF UNION CITY AND THE BOARD OF COMMISSIONERS OF THE CITY OF UNION CITY, DEFENDANTS.
    Superior Court of New Jersey Law Division
    Decided May 19, 1971.

      Mr. Gregory T. Farmer for plaintiff (Mr. Anthony M. De Fino, attorney; Mr. Gregory T. Farmer on the brief).

      Mr. Jack Prizzia for defendants.

      Mr. Robert S. Feder for Union City Boss Barbers Association, amicus curiae (Mr. George B. Campen on the brief).
   Larner, A. J. S. C.

This action in lieu of prerogative writ, challenges the validity of a municipal ordinance of the City of Union City entitled “An Ordinance to Regulate Barber Shops, Barbering and Itinerant Barbers in the City of Union City, County of Hudson, to Eix Opening and Closing Hours for Barber Shops and to Provide Penalties for the Violation Thereof.” The provision in question, section 11, provides in part that “It shall be unlawful for any barber shop to be open for business on any Sunday, Hew Year’s Day, July 4th, Labor Day, Thanksgiving Day, Christmas, Memorial Day, Washington’s Birthday and all Wednesdays except whenever there is a weelc containing a holiday; in that instance the barber shop may remain open.” (Emphasis added).

Although the matter was presented on the return of an order to show cause for preliminary restraint, the parties stipulated that the court consider the case as if it were submitted on final hearing.

The facts are not in dispute. Plaintiff is engaged in the business of barbering in Union City and is the owner of a barber shop which offers such services to the general public. On January 27, 1971 the Department of Health of the city filed a complaint against Thomas Russo as president of plaintiff corporation alleging that he engaged in barbering at his place of business in violation of section 11, in that he kept his shop open on January 27, 1971, a Wednesday. This court temporarily restrained the city from enforcing the ordinance pending the determination of the issues presently before the ■court.

In addition to the parties to the litigation, an amicus ■curiae brief was filed on behalf of the Union City Boss Barbers Association.

Plaintiff challenges the validity of the ordinance on the following grounds: (1) in enacting N. J. S. A. 40:52-1(l) the Legislature has preempted local regulation of the barbering profession; (2) N. J. S. A. 40:52-1(l) does authorize local regulation of plaintiff’s business, the municipality is nevertheless not empowered thereunder to adopt ordinances compelling barber shops to close on Wednesdays, and (3) the ordinance is unconstitutional with relation to such compulsory closing in that it is discriminatory, oppressive and unreasonable.

The particular question at issue is a novel one in this state since there are no reported opinions on the subject.

N. J. S. A. 40:52-1 provides:

Tile governing body may make, amend, repeal and enforce ordinances to license and regulate: * * * (1) The opening and closing of barber shops on Sunday and legal holidays, and the hours of opening and closing on week days, and to impose a penalty for the violation of any such ordinance, not exceeding a fine of $25.00, or imprisonment in the municipal lockup, or in the county jail, not exceeding 10 days.

It further provides that:

Nothing in this chapter contained shall be construed to authorize or empower the governing body of any municipality to license or regulate any person holding a license or certificate issued by any department, board, commission, or other agency of the State.

Plaintiff asserts that since barber shops are licensed by the State Board of Barber Examiners pursuant to N. J. S. A. 45 :4-27 et seq., the municipality is prohibited from making, amending or enforcing ordinances to regulate the days or hours of opening and closing of businesses engaged in barbering. This argument would have merit if the issue before the court were limited to the validity of an ordinance requiring a barber to obtain a municipal license when that individual holds a license from a state agency, since such state preemption would exclude municipal power to regulate or license in this field. Coculo v. Trenton, 85 N. J. Super. 523 (App. Div. 1964); Galante v. Teaneck Dept. of Health, 70 N. J. Super. 362 (Law Div. 1961).

The attack, however, on municipal power to regulate hours and days of opening and closing of barber shops within the limits of N. J. S. A. 40 :52-1 (l) is without merit. As already noted, N. J. S. A. 40:52 — 1 (l) affirmatively grants such power to municipalities. In addition, N. J. S. A. 45 :A-50.10 expressly provides that “Nothing in this act [State Licensing Act] shall be construed to limit or impair the right of any municipality to regulate or license barber shops by ordinance as provided by law.”

A consideration of all the statutory enactments in pari materia leads to the unmistakable conclusion that despite' the state preemption of licensing and regulation of barber shops, the Legislature has delegated to municipalities a limited power to regulate in the area of hours and days of closing.

Assuming the existence of the power to regulate in this area, plaintiffs further contention is that N. J. S. A. 40:52-1 (l) authorizing the regulation of hours of work and the days of closing does not empower a municipality to adopt an ordinance requiring barber shops to' close on a Wednesday or any other particular weekday. Defendants contend that reasonable construction of the statute permits the assertion of such power as a fair extension of the legislative intent.

It is axiomatic in this State that a municipal corporation is a government of enumerated powers and that it has no inherent powers to adopt ordinances or regulations except those affirmatively delineated by the Legislature. A municipality must act within its: delegated authority. Roselle v. Public Service Elec. & Gas Co., 35 N. J. 358 (1961); Wagner v. Mayor, etc., Newark, 24 N. J. 467 (1957); Bucino v. Malone, 12 N. J. 330 (1953); Fred v. Mayor, etc., Old Tappan, 10 N. J. 515 (1952); Edwards v. Mayor, etc., Moonachie, 3 N. J. 17 (1949); Jersey City v. Martin, 126 N. J. L. 353 (E. & A. 1941). This limitation, of course, is to be interpreted in light of the constitutional provision that laws concerning municipal corporations shall be liberally construed in their favor and shall include not only powers granted in express terms but also those which are necessary or incident to the powers conferred. N. J. Constitution (1947) Art. IV, Sec. VII, par. 11. In addition, the court is cognizant of the underlying rule of law that a municipal ordinance is entitled to a presumption of validity. Kozesnik v. Montgomery Tp., 24 N. J. 154, 167 (1957).

However, neither the constitutional mandate nor the presumption of validity warrants reading into the statutes a power that does not exist and is not intended to be granted. Magnolia Development Co., Inc. v. Coles, 10 N. J. 223, 227 (1952). When the validity of an ordinance is before the court, judicial intervention is mandated where the power assumed by the municipal governing body is beyond the boundaries delineated by the statutory language and legislative intent. Lynch v. Edgewater, 8 N. J. 279, 286 (1951); Donohue v. Campbell, 98 N. J. L. 755, 763 (E. & A. 1923).

In the statute in question the Legislature authorized municipalities to regulate the opening and closing of barber shops on Sundays and legal holidays and to regulate the hours of opening and closing on weekdays. The separate treatment of these two areas of regulation is meaningful and significant. It evinces an intent that the power to regulate as to weekdajrs excludes total closing and is limited to hours of opening and closing.

It is of some interest that in the parallel situation of beauty parlors the statutory language authorizing regulation by municipalities is similar. N. J. S. A. 40:48-2.1. The Appellate Division in Coculo v. Trenton, supra, dealing with the beauty parlor statute, was careful to delineate the limitation of delegated power in the following language:

State control over beauty parlors, as such, has been delegated to the municipalities only to the limited extent that the local governing bodies may regulate the week-day business hours of such establishments and their opening and closing on Sundays and holidays. [85 N. J. Super. at 526]

Defendants rely on Amodio v. Board of Comm’rs’ West New York, 133 N. J. L. 220 (Sup. Ct. 1945), as authority to the contrary. In that case the former Supreme Court sustained as constitutional an ordinance of West Few York requiring the closing of barber shops on Wednesday afternoons. It is urged that closing in toto on Wednesdays is but a logical extension of the holding in that case and should be sustained. In the first place, the issue of statutory construction and delegated power was not raised or passed upon in Amodio. And more importantly, the case is distinguishable because regulation of the number of hours on a Wednesday is not equated with total Wednesday closing in the context of the legislative mandate.

The court therefore concludes that the enabling legislation N. J. S. A. 40:52-1(l) does not authorize a municipality to adopt an ordinance compelling the closing of all barber shops on any days of the week other than Sundays and holidays. The views of the Union City Boss Barbers Association, or even the desires of most of the barbers in the community, can have no effect upon the basic legal issue. If the municipality has no power to engage in the attempted regulation, the popularity of its regulation with barbers or the public is of no legal consequence.

Another facet of plaintiff’s complaint attacks the regulation as unconstitutional in that it represents an arbitrary and discriminatory exercise of police power in violation of the Fourteenth Amendment of the U. S. Constitution and Art. 1, pars. 1 and 5 of the F. J. Constitution. Whether an ordinance compelling total closing during a weekday is reasonable even if statutorily authorized is highly questionable. In fact there is substantial authority in other jurisdictions to the effect that regulation of hours or opening and closing of barber shops in any form is unconstitutional because regulating the hours of work by barbers bears no- real and substantial relation to the health, safety, morals or general welfare of the public, and therefore is not a valid exercise of the police power. Noble v. Davis, 204 Ark. 156, 161 S. W. 2d 189 (Sup. Ct. 1942); State v. Danberg, 40 Del. 136, 6 A. 2d 596 (Ct. Gen. Sess. 1939); Miami v. Shell’s Super Store, Inc., 50 So. 2d 883 (Fla. Sup. Ct. 1951); State Bd. of Barber Examiners v. Cloud, 220 Ind. 552, 44 N. E. 2d 972 (Sup. Ct. 1942) ; Louisville v. Kuhn, 284 Ky. 684, 145 S. W. 2d 851 (Ct. App. 1940); Alexandria v. Hall, 171 La. 595, 131 So. 722 (Sup. Ct. 1930) ; In re Opinion of the Justices, 337 Mass. 796, 151 N. E. 2d 631 (Sup. Jud. Ct. 1958); Knight v. Johns, 161 Miss. 519, 137 So. 509 (Sup. Ct. 1931); Stale v. Paille, 90 N. H. 347, 9 A. 2d 663 (Sup. Ct. 1939); People ex rel. Pinello v. Leadbitter, 301 N. Y. 695, 95 N. E. 2d 51 (Ct. App. 1950); Cincinnati v. Correll, 141 Ohio St. 535, 49 N. E. 2d 412 (Sup. Ct. 1943); Oklahoma City v. Johnson, 183 Okla. 430, 82 P. 2d 1057 (Sup. Ct. 1938); Amitrano v. Barbaro, 61 R. I. 424, 1 A. 2d 109 (Sup. Ct. 1938); Huron v. Munson, 67 S. D. 88, 289 N. W. 416 (Sup. Ct. 1939); State v. Greeson, 174 Tenn. 178, 124 S. W. 2d 253 (Sup. Ct. 1939); State ex rel. Newman v. Laramie, 40 Wyo. 74, 275 P. 106 (Sup. Ct. 1929). Such regulation, however, has been susstained by iSiew Jersey courts' in early decisions. La Porta v. Board of Health, 71 N. J. L. 88 (Sup. Ct. 1904); Falco v. Atlantic City, 99 N. J. L. 19 (Sup. Ct. 1923); Amodio v. Board of Commr’s, West New York, supra.

The court, however, will not undertake to resolve the constitutional challenge since it is not necessary for the disposition of the litigation. Trial courts are mandated to avoid decisions on constitutional issues except when such decisions are imperative and inescapable. Smith v. Livingston Tp., 106 N. J. Super. 444 (Ch. Div. 1969); Accident Index Bureau, Inc. v. Hughes, 83 N. J. Super. 293 (App. Div. 1964), aff'd 46 N. J. 160 (1965); Ahto v. Weaver, 39 N. J. 418 (1963); State v. Salerno, 27 N. J. 289 (1958).

In view of the foregoing, judgment will be entered in favor of plaintiff setting aside the provision of the ordinance compelling Wednesday closings and permanently enjoining the municipality and its agents from enforcing said provision.


source: Caselaw Access Project

author: Canton, J. A. D.

license: Public Domain

text:
    IN THE MATTER OF: JERSEY CITY EDUCATION ASSOCIATION, LOUIS T. SCIALLI, THOMAS FAVIA, SARAH GROCHOW, GAIL ROMANOWSKI, DORIS E. FILLIPPONE, ETHEL P. BROWN, DANIEL CUPO, GAIL HALL, BARBARA SCHNEIDER, AND ROBERT ROGENSTEIN, INDIVIDUALLY AND AS OFFICERS AND MEMBERS OF THE EXECUTIVE BOARD OF THE JERSEY CITY EDUCATION ASSOCIATION, AND FRANK AMARATO, JAMES AUMACK, MARY DAVIS, MARGARET DEL PRETE, DIANNE FERRARA, BERNICE MACCHIA, NEIL PAGANO, MICHAEL WARJANKA, MAE McCOMB, MYRA DANIELL, CHARGED WITH CONTEMPT OF COURT, DEFENDANTS-APPELLANTS.
    Superior Court of New Jersey Appellate Division
    Argued March 22, 1971 — Supplementary Briefs Submitted March 81, 1971 and April 14, 1971
    Decided May 21, 1971.

      Before Judges Coyford, Kolovsky and Carton.

      Mr. Emil Oxfeld argued the cause for appellants (Mr. Philip Feintuch, attorney).

      Mr. Norman L. Kline, Assistant Prosecutor, argued the cause for respondent (Mr. Geofrey Gaulkin, Hudson County Prosecutor, attorney).
   The opinion of the court was delivered by

Canton, J. A. D.

In these consolidated appeals the Jersey City Education Association (Association) and 20 individual member teachers challenge the validity of summary convictions for contempt of court for violating a restraining order of the Chancery Division issued February 9, 1970 prohibiting them from engaging in a strike against the Jersey City Board of Education (board).

All defendants argue that the injunctive order was unconstitutionally issued. One group of defendants, comprised of officers and members of the executive committee of the Association, argue that the proofs fail to establish their violation of the order. The second group, consisting of members at large, although making no claim that their acts were not violative of the order, argue that actual notice of the February 9 restraining order was not established against them. The Association advances the additional argument that the amount of the fine levied against it was in excess of that constitutionally permissible as punishment for summary contempt.

A summary of the chronological background leading to the strike and the proceedings which arose from it shed light on the legal issues involved.

Negotiations between representatives of the board and the Association began about December 1, 1969, the teachers having submitted their original proposals to the board late in October or early November. Some ten meetings of the parties took place thereafter — the negotiations principally concerning the issue of salary.

On January 15, 1970 Mayor Whelan of Jersey City delivered what was designated as the “State of the City Address” in which he set forth the problems the city faced in financing public education and related services. He indicated 5that the schools would be closed the following September unless financial assistance from the State was forthcoming. The next day the board published the proposed school budget limiting the teacher salary increase to $100 across the board.

An impasse in negotiations between the board and the teachers was reached on January 16, 1970, due in large measure to the board’s statement that the $100 increase was the final offer and also because of a failure to agree on issues concerning size of classes, a proposed study of a mental health class, drug abuse and various special courses. When a mediator’s efforts to resolve the dispute were unsuccessful, the State Public Employees’ Relations Commission sent a list of names of fact-finders to the board which indicated acceptance of this list in early February.

After various meetings of the parties in which the Association unsuccessfully sought to have the board of school estimate defer adoption of the proposed budget until the issues in dispute were resolved, and while the fact-finding group remained in session, the members of the Association voted on Sunday afternoon, February 8, to strike. Negotiations with the fact-finding group immediately broke off when Scialli, president of the Association, returned from the meeting and announced that the teachers had voted to strike.

The following day (Monday, February 9) the board filed a complaint alleging in essence that defendant Association and the group consisting of Louis T. Scialli, president; Thomas Eavia, first vice-president; Marion Winds, second vice-president; Sarah Groehow, financial secretary; Gail Romanowski, corresponding secretary; Doris Fillippone, recording secretary; and Ethel P. Brown, Daniel Cupo, Gail Hall, Robert Rogenstein and Barbara Schneider, members at large of the executive board, advocated and called a strike by the pnblic school teachers of Jersey City. On the basis of defendants’ concession that as of February 9, 1970 such a strike existed, Judge Lynch that day entered a temporary restraining order until further order of the court and an order to show cause why an injunctive order should not be entered.

The restraining order was addressed to defendant Association and the individual defendants, “their associates, their servants, agents or employees or any individual acting in concert with or in combination with them.” It restrained them

a. From picketing about, near or on schools or school grounds or areas aboxit the public schools oí the City of Jersey City.
b. From striking, participating in any strike, adjoining [sic], abetting, counselling, persuading any person or persons or any teacher or employee of the plaintiff to strike or to remain away from their work for the purpose of striking or from interlerring with any person or persons, student or students desiring to enter the Public Schools of the City of Jesey City.
c. To refrain from any act which will in any manner disrupt the lawful and orderly conduct of the schools and the education of the public school children of the City of Jersey City or of interferring in any manner with the welfare and safety of the public school students. From ordering, commanding, directing, assisting, abetting, counselling, persuading or suffering in any manner whatsoever any person or persons who attempt to commit or who commit any of the aforesaid acts.

When issuing the restraining order the court announced that the merits of the dispute were not involved and that the court was taking such action because public employees have no legal right to strike. The court also made it clear that the restraining order was an order of the court. Copies of the complaint and affidavits were directed to be served upon the named defendants. The board was also directed to publish the order in a prominent manner on February 10 “by way of display advertising” in the Hudson Dispatch and Jersey Journal.

On February 10 each named defendant was served with the February 9 restraining order. On February 11, on the basis of affidavits that alleged that each of these individual defendants continued his strike tactics and absented himself without excuse or authority from school; that none of them was ill on that day, having attended a meeting of the board of school estimate that morning, and that a number of pickets were stationed in front of various Jersey City schools after service and publication of the order, Judge Lynch issued an order of arrest charging these defendants with violating the restraining order. After presenting themselves to the court voluntarily, they were released on their own bond of $1,000 each.

On the following February 19 the second group of defendants, comprised of ten teachers of Public School No. 12, were ordered to be arrested for the violation on Friday, February 13, of the February 9 restraining order. These defendants were also released on bail of $1,000. This second group of defendants is comprised of the following teachers: Frank Amarato, James Aumack, Mary Davis, Margaret Del Prete, Dianne Ferrara, Bernice Macchia, Neil Pagnano, Michael Warjanka, Mae McComb and Myra Daniell.

A consolidated summary trial of all defendants for contempt of court was conducted by Judge Lora in which Lawrence P. Brady, Esq. was designated to prosecute' the contempts. " The prosecution offered considerable evidence, which will be referred to hereafter, in support of the charges. The defense recalled one of the State’s witnesses concerning an article appearing in the newspaper but offered no other evidence. None of the defendants testified.. It was.conceded that the individual defendants of the first group, whether in their respective capacity or individually, as well as defendants New Jersey Education Association and Jersey City Education Association, were properly served on February 10 with the order to show cause, the complaint and the temporary restraining order.

After the prosecution rested its case, Judge Lora granted motions for acquittal as to defendants Gould and New Jersey Education Association. He also granted a dismissal as to defendant Marion Winds, a vice-president of the Jersey City Education Association, at the conclusion of the case. He found all other defendants guilty of violating the restraining order.

The officers and members of the executive board of the Teachers’ Association were sentenced to three months in county jail, two months suspended, fined $500 each and placed on probation for one year. The second group of defendants, with the exception of Frank Amarato, was sentenced to 30 days in county jail, 20 days suspended, fined $200 each and placed on probation for one year. Amarato was sentenced to 30 days in county jail, 15 days suspended, fined $250 and placed on probation for one year. Defendant Jersey City Teachers Association was fined $10,000.

I

All defendants contend that the February 9, 1970 restraining order was issued contrary to the provisions of the New Jersey Constitution.

We overlook the fact that the validity of a restraining order is justiciable only on appeal from the order and not from an adjudication for contempt thereof. In re Tiene, 17 N. J. 170 (1954). On the merits of the question presented, the law is contrary to defendants’ assertion. Delaware River and Bay Authority v. International Organization, etc., 45 N. J. 138 (1965); Board of Education, Union Beach v. N. J. E. A., 53 N. J. 29 (1968); In re Block, 50 N. J. 494 (1967); In re Buehrer, 50 N. J. 501 (1967). Any suggestión that this conclusion should be re-examined in light of the right to “organize” should be addressed to the Supreme Court.

II

Defendants next argue that there was no proof beyond a reasonable doubt that there were knowing violations of the restraining order.

As to the first (Sciaili) group, notice of the restraining order is not in issue. These defendants, all officers, or members of the executive board of the Association, contend only that there is no proof that absence from school was pursuant to a strike plan or other concerted activity. They also argue that the attendance records of defendants were improperly admitted. Defense counsel stipulated as to what the contents of the attendance books were, but refused to stipulate the meaning of the symbols used in them or any conclusions to be gleaned therefrom.

Francis McCarthy, assistant superintendent in charge of personnel, testified as to the existence of a standard operating procedure requiring all teachers to sign or report in. On the basis of this procedure, records were maintained of teachers present or absent.

Principals of individual schools kept daily information sheets showing actual attendance and absences. This information was consolidated in a summary report prepared under McCarthy’s supervision. The attendance records established that all individual defendants of both groups (with some exceptions as to certain individual dates) were generally absent from February 9 to March 3 without explanation or excuse. He testified, further, that although the Jersey City school system had a teaching staff of 1743 and the normal absence rate was no more than 10%, during the period from February 9 to March 3 the total teachers present on any one school day ranged between 288 and 400. During this period all schools were open each school day, but closed shortly after 9 a.m. due to teacher absences.

We are satisfied that the attendance records were properly admitted into evidence and that they warrant the inference that all individual defendants absented themselves from school pursuant to the strike activity. Simply because these particular defendants may have been at the board of estimate meeting on February 11 and engaged in some form of negotiation, did not relieve them of their obligation of performing their duties as teachers or alternatively of reporting an expected absence to the appropriate authorities.

Such evidence of absence from school without excuse or explanation in violation of school regulation, coupled with all the other evidence, including the fact that a union strike was in progress and that these defendants occupied executive positions in the Association whose members voted the strike, established beyond question that all of these individual defendants, as well as the Association of which they were officers, were participating directly or indirectly in the strike, and aiding and abetting it in violation of the restraining order.

As to the second group, the teachers of P. S. 12 who were charged with violating the restraining order on February 13, the primary issue is the adequacy of notice.

One cannot be found guilty of contempt of a labor injunction unless it is shown lhat he acted with knowledge of the injunction. However, it is not necessary to prove formal service on the individual. Actual notice of its existence and its contents is sufficient. Although actual knowledge must be established, it may be inferable from the facts. See Garrigan v. United States, 163 F. 16 (7 Cir. 1908), cert. denied 214 U. S. 514, 29 S. Ct. 696, 53 L. Ed. 1063 (1909). See also, 51B C. J. S. Labor Relations § 988; Annotation, “Contempt — Injunction—Nonparty,” 15 A. L. R. 386, 400 (1921); 48 Am. Jur. 2d, Labor and Labor Relations, § 1527.

The question before us is whether the record is sufficient to justify the conclusion beyond a reasonable doubt that these teachers acted with knowledge of the restraining order. We are satisfied that it does.

Knowledge may be inferred from the circumstances surrounding the violation of the order. From the stipulation of counsel it appears that these defendants were members of the union. Their representatives had been negotiating with representatives of the board for many weeks prior to the calling of the actual strike on February 8. The restraint was issued on February 9 (Monday). The proofs showed that there was wide dissemination of news of the strike and of the order restraining it, and that the order was published in its entirety in full-page displays in both the Hudson Dispatch and the Jersey Journal, the principal local dailies circulated in Jersey City. General news reports of the strike continued throughout the week of February 9.

Julia Barnes, principal of P. S. 12, testified that on February 13 several of these defendants, not particularly identified, came into her office and left self-addressed envelopes so that their paychecks could be mailed to them. She observed all of the defendants in this group standing or walking around in front of the entrance of that school from about 8:15 a.m. to 8:40 a.m. on that same day and testified that they did not report that day for the purpose of teaching. Although she did not see any of these defendants actually carrying a sign that day, she described their activity as picketing.

The inescapable inference from all the circumstances is that these defendants were not only aware of the strike but that they were also familar with the existence and contents of the court order whose proscriptive terms extended to all members of the union. These defendants, as teachers and members of the striking Association, had a strong economic stake in the outcome of the lengthy negotiations which led up to the strike. There was wide dissemination in the news media of the strike and specifically of the general tenor of the restraining order. There is no reasonable doubt that these defendants had actual notice that they were restrained from striking, or aiding or abetting in the strike in any way.

Finally, in the exercise of our appellate function we concur with the penalty as imposed against each individual defendant.

Ill

Defendant Association advances the further contention that the $10,000 fine levied against it exceeds that authorized by law in a summary criminal contempt proceeding such as this. The principal basis for this contention is that the Legislature, in adopting N. J. S. A. 2A :169-4, ifhas clearly specified the maximum penalty which may bo assessed in non-indictable and non-jury cases as being six months in jail or by a fine of not more than $500.” That section, as it was amended in 1968, reads:

Except as otherwise expressly provided, a person adjudged a disorderly person shall be deemed to have been guilty of a petty offense and shall be punished by imprisonment in the county workhouse, penitentiary or jail for not more than six months or by a fine of not more than $500 or both. [L. 1968, c. 133, § 1]

It should be noted that this provision does not purport to prescribe the punishment for all petty offenses. It is simply an amendment to the general punishment section of the Disorderly Persons Act. Adopted in response to the holding of the United States Supreme Court in Duncan v. Louisiana, 391 U. S. 145, 194, 88 S. Ct. 1444, 20 L. Ed. 2d 491, 522 (1968), its apparent purpose is to insure that all disorderly persons offenses may be tried by the court without a jury.

The other sections of the act list the various offenses prohibited under the category of disorderly persons. Contempt of court is not among those listed. Nor does the Disorderly Persons Act refer to contempt of court regarding the punishment which may properly be imposed for the commission of that offense. The effect of N. J. S. A. 2A:169-4 is merely to prescribe the limits of punishment for the petty offense of being a disorderly person.

Compare the inclusive language of N. J. S. A. 2A:85-1, which provides “all other offenses of an indictable nature at common law, and not otherwise expressly provided for by statute, are misdemeanors”; see, too, N. J. S. A. 2A:10-1 which, after defining what constitutes contempt of court, contains this proviso: “Nothing contained in this section shall be deemed to affect the inherent jurisdiction of the superior court to punish for contempt.”

Consequently, we do not interpret N. J. S. A. 2A:169-4 as expressive of a legislative intention to limit or specify the maximum penalty which could be imposed for all petty offenses and particularly contempt of court. Nor do we read In re Buehrer, 50 N. J. 501 (1967), as adjudicating that summary contempt constitutes a disorderly persons offense. The following language of the Buehrer opinion does not mandate the conclusion urged by defendants:

We have not passed upon the outer limits of punishment with respect to the offenses below the grade of crime. As stated above, the Legislature authorized a year’s imprisonment and a fine of $1,000 for a disorderly persons offense. The amount of the fine presents no problem. Whether a jail term for a year exceeds constitutional limits may be debatable. No case in our State has dealt with that question. An authorized maximum of six months has been upheld. * * * (emphasis added) [at 519].

In view of our conclusion that the Disorderly Persons Act does not apply to contempts of court, we need not consider the State’s further argument that the term “person” as used in that statute refers only to persons individually and was not intended to protect corporations or organizations of persons. Cf. Grosjean v. American Press Co., 297 U. S. 233, 56 S. Ct. 444, 80 L. Ed. 660 (1936), which considers whether a corporation must be treated as a person and entitled to due process of law and equal protection.

We also do not read the Buehrer case to set the outer limits of punishment for all summary contempt convictions. Buehrer involved individuals, not a corporation. The decisión represents a limitation on the inherent jurisdiction of the court in assessing the maximum penalty for a violator subject to both a fine and a term of imprisonment. The court was concerned not with the amount of the fine (“The amount of the fine presents no problem,” at 519), but with the possible duration of the prison term.

We are not persuaded that Buehrer intended to fix the maximum fine in situations where imprisonment was impossible or to hold that a fine in excess of the $1,000 imposed on some defendants in that case may not be assessed against a corporate defendant because it would violate the concept of the “petty offense” limitation.

The line of demarcation between “petty offense” and “criminal prosecution” has been equated with the right of trial by jury. See Frank v. United States, 395 U. S. 147, 148, 89 S. Ct. 1503, 23 L. Ed. 2d 162 (1969). Under Bloom v. Illinois, 391 U. S. 194, 198, 88 S. Ct. 1477, 20 L. Ed. 2d 522 (1968), contempt of court must be denominated a petty offense unless the punishment makes it a serious offense.

We observe that the federal statutes do not fix the limits (except in certain cases) for punishment for contempt, nor do they distinguish between those contempts which should be classified as petty or serious. In considering the problem the federal courts have adopted a hindsight approach as the criterion.

Where no maximum penalty is authorized, the severity of the penalty actually imposed is the best indication of the seriousness of the particular offense. [Frank v. U. S., supra at 149, 89 S. Ct. at 1505]

Both Bloom and Frank considered the consequences of a jail sentence in contempt cases. In Bloom a sentence of two years imprisonment for contempt after trial without a jury was held to be a “serious” offense — requiring a trial by jury. In contrast, Frank upheld a conviction after trial without a jury as being a petty offense where defendant was given a suspended sentence and placed on probation for three years.

In Rankin v. Shanker, 23 N. Y. 2d 111, 295 N. Y. S. 2d 625, 242 N. E. 2d 802 (Ct. App. 1968), the court considered whether a fine of $10,000 per day or 1/52 of the total amount of annual membership dues “whichever is the lesser” (provisions setting this penalty are contained in the Taylor Law — Jud. Law § 751, subd. 2, par. [a]), render the contempt a “serious” crime within the meaning of Bloom v-Illinois, supra.

<? * * The determination, whether it is serious or petty under the decisions, turns not on the amount of the fine which may be imposed but solely on the length of the prison sentence. (See Ex parte Wilson, 114 U. S. 417, 428, 5 S. Ct. 935, 29 L. Ed. 89; People v. Bellinger, 269 N. Y. 265, 271, 199 N. E. 213, 216; Matter of McKinney v. Hamilton, 282 N. Y. 393, 397, 26 N. E. 2d 949, 951, 127 A. L. R. 1283). Consequently, as the cases reveal, the fine, even though sizeable in amount, furnishes no valid criterion for the defendants’ claim that the contempt charged against them constitutes a serious crime. Further, even if the amount of the permissible fine had any relevance, the fine — which in the last analysis must be borne by the union membership (see e. g., Martin v. Curran, 303 N. Y. 276, 281, 101 N. E. 2d 683, 686) — is actually small, amounting, at most, to no more than a member's weekly union dues for each day of the contempt. [295 N. Y. S. 2d at 632, 242 N. E. 2d at 807-808]

We note also that in United States v. United Mine Workers of America, 330 U. S. 258, 67 S. Ct. 677, 91 L. Ed. 884 (1946), the court held that the union had no right to a trial by jury despite a fine of $700,000 (reduced by the court from $3^ million). However, the “right to trial by jury” was argued in terms of the right as granted under § 11 of the Norris-LaGuardia Act and not under the equal protection or due process clauses. The Supreme Court concluded the corporate defendant was properly tried without a jury.

The court in Cheff v. Schnackenberg, 384 U. S. 373, 86 S. Ct. 1523, 16 L. Ed. 2d 629 (1966), denied Holland Furnace’s petition for certiorari (381 U. S. 924, 85 S. Ct. 1559, 14 L. Ed. 2d 683 (1965)) despite a $100,000 fine after trial without a jury, but granted Oheff’s individual petition arising from that same action so as to determine if he had been denied his right to a jury trial. Cheff had been sentenced to six months imprisonment. The court upheld his conviction.

In its latest pronouncement, the Supreme Court has held that “no offense can be deemed ‘petty’ for purposes of the right to trial by jury where imprisonment for more than six months is authorized.” Baldwin v. New York, 399 U. S. 66, 69, 90 S. Ct. 1886, 1888, 26 L. Ed. 2d 437, 440 (1970).

Our research has disclosed no case holding that a conviction which could result only in the imposition of a money fine, regardless of amount, and not in imprisonment, gives rise to a right to a jury trial — or makes a “petty” offense a “serious” one.

Since Buehrer, as Judge Lora observed, “was concerned only with the question of the permissible limits of non-jury proceedings and punishment of individuals, and not of a union or association such as here involved,” we are not bound by the limitation prescribed in that case. We have already noted that there exists no limitation of a legislative nature.

TJnlike union officers, the union itself cannot be jailed for contempt. On the other hand, the citation of all striking members individually and the invocation of plenary proceedings as to each present an impracticable alternative method of vindicating the public wrong committed by willful defiance of the order. We observe also that the sting of a $500 or $1,000 maximum fine even on a daily basis, would not, in all probability, serve as a deterrent to a large union calling a strike of public employees.

We are of the opinion that corporations are sufficiently dissimilar to individuals to warrant the imposition of a fine exceeding $1,000 in a summary contempt proceeding. A greater fine does not transform the contempt from a petty to a serious offense and would not require the incidents of indictment and trial by jury. Consequently, a fine, limited only by reasonableness, may be imposed against a corporate defendant in a summary contempt proceeding. The fine imposed against defendant Association by the trial court was a proper one under the circumstances of this ease. We concur in that sentence.

All pending stays are vacated. Eines are to be paid forthwith, if not already paid. Jail terms shall be served commencing July 12, 1971.

Affirmed.


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

text:
    LEON WALDMAN, MARTIN WALDMAN AND J. M. FRIED, PLAINTIFFS-APPELLANTS, v. ALCAN ALUMINUM CORPORATION, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued May 24, 1971
    Decided June 1, 1971.

      Before Judges Goldmann, Leonard and Fritz.

      Mr. Bruce Lubitz argued the cause for appellants (Messrs. Hannoch, Weisman, Stern & Besser, attorneys).

      Mr. Steven B. Hoskins argued the cause for respondent (Messrs. McCarter & English, attorneys).
   The opinion of the court was delivered by

Goldmann, P. J. A. D.

Plaintiffs appeal, by leave granted, from an order entered by Chancery Division Judge Mintz staying this litigation in its entirety pending arbitration pursuant to the New Jersey Arbitration Act, N. J. S. A. &A:24-1 et seq., and referring certain of the disputes to public accountants for decision.

Plaintiffs, together with William Pried and William Wald-man, were the principals and employees of Wallmaster, a concern engaged mainly in the sale of aluminum siding. Wallmaster sold its business to National Distillers in 1964. In 1965 defendant Alcan Aluminum Corporation purchased Wallmaster, which became its Brixite Division.

On January 1, 1966 plaintiffs William Pried and William Waldman entered into a profit-sharing employment agreement with defendant fixing their respective annual salaries. The agreement also provided that Leon Waldman was to receive 6}i% of the annual increased earnings, Martin Wald-man a like percentage, and J. M. Pried 1 %y2%. The calendar year 1965 was selected as the “Base Period.” “Base Period Earnings” were defined as the net earnings before taxes, and “Adjusted Base Period Earnings” as the “Base Period Earnings” after making, among others, the following adjustment:

Retroactive increase to 1st January 1965 in the transfer price of bare aluminum strip to two cents per pound below the Company’s [Alcan’s] base list prices of such strip at the time of transfer.

Earnings for years subsequent to 1965 were to be determined by deducting from gross sales revenues: (1) all selling, sales administration, sales promotion, advertising and distribution expenses; (2) the “standard manufacturing cost” —■ carefully defined in the agreement — of the products sold (the raw material to be used was purchased by plaintiffs from defendant), and (3) interest at the rate paid by the company on bank borrowings on accounts receivable and inventories of finished goods. “Increased earnings” was defined as the amonnt by which the earnings for the year concerned exceeded the adjusted base period earnings.

The agreement contained the following arbitration clause:

9. Any controversy or claim arising out of or relating to this Agreement or the breach thereof shall be settled by arbitration in the City of Cleveland in accordance with the rules then obtaining of the American Arbitration Association except any disputes as to the amount of any payment under Section 2(b) hereof which shall be decided as expressly provided in Schedule A by the Company’s Independent Public Accountants.

Schedule A attached to the agreement provided that

* * * In case of dispute as to the amount of each payment the matter shall be referred to the Company’s Independent Public Accountants for decision and their decision shall be final.

Plaintiffs’ term of employment under the agreement was for a period of four years, from January 1, 1966 to December 31, 1969. Paragraph 3 provided that

* * * Each of the Employees hereby undertakes and agrees that during such term and for two years following the end of such term, he will not compete directly or indirectly, or participate as a director, officer, employee, agent representative or otherwise or as a stockholder, partner or joint venturer or have any direct or indirect financial interest (including without limitation, the interest of a creditor in any form) in any business competing directly or indirectly with the building products business, present and future (or any part of any such building products business), of the Company or of any other company of the Aluminum Limited Group, provided that, if, during the term of employment of the Employees under this Agreement the employment of any of the Employees is terminated for cause pursuant to Section 5 hereof, this provision shall apply for the Employee concerned to the date of termination and for two years following such date. * * *

A dispute having arisen as to the amounts due plaintiffs under the agreement, they instituted a Chancery Division action in May 1970, following the termination of their employment. The first count demanded judgment directing defendant to account to plaintiffs for all earnings during the four years from 1966 through 1969, to grant plaintiffs and their agents access to all books and records pertinent to the determination of those earnings, and to pay them the amount found to be justly due and owing. The second count sought a declaration of the invalidity of the paragraph 3 covenant not to compete. Alcan moved for an order staying the action pursuant to the Arbitration Act, N. J. S. A. 2A :24-4, pending arbitration of the issues raised by the complaint. Judge Mintz, after considering the briefs and hearing oral argument, granted the motion and entered an order which provided that (1) “all disputes concerning the interpretation of the agreement which in any way touch upon, effect or pertain to the amount of any payment” due plaintiffs, as well as any disputes as to the amount of any payment due, be decided by the company’s independent public accountants, as provided in paragraph 9 and Schedule A of the agreement, and (2) any other controversy relating to the agreement, including the dispute as to the validity of the covenant not to compete, be in the first instance submitted to arbitration, as provided in paragraph 9.

On the argument of defendant’s motion, plaintiffs contended that public policy dictated that the restrictive covenant issue be decided by the courts of this State and, further, that defendant’s accountants were not empowered to resolve any disputes relating to the interpretation of the agreement. They project the same contentions on this appeal.

Paragraph 9 of the agreement, quoted above, is altogether clear in providing that all controversies, with the single exception of disputes over the amount of payments, shall be settled by arbitration. Plaintiffs, who were fully experienced businessmen and in a position to insist upon reasonable terms, readily accepted paragraph 9. That provision was without limitation as to the kind of controversy or claim that should go to arbitration. We agree with Judge Mintz in his determination that the covenant not to compete set out in paragraph 3 should, in the first instance, be determined by arbitration. Plaintiffs rely on Solari Industries, Inc. v. Malady, 55 N. J. 571 (1970). That case concerned itself with the question of whether a noncompetition provision without geographical limit could be partially enforced or was invalid on its face. Cf. Whitmyer Bros., Inc. v. Doyle, 58 N. J. 25 (1971). It did not address itself to the question presented here — whether the covenant not to compete is to be reviewed in the first instance by arbitrators, as called for by the agreement.

We are not convinced that the arbitrators are less suited than is the Chancery Division to make a factual determination of whether the covenant not to compete is reasonable in light of the position of the parties and the nature of the business involved. And even if that determination be deemed to involve a question of law, arbitration is nonetheless proper. Milk Drivers, etc., Local 680 v. Cream-O-Land Dairy, 39 N. J. Super. 163, 177-178 (App. Div. 1956).

We cannot, however, agree with that part of the order under review which provides that any and all disputes concerning the interpretation of the agreement which in any way touch upon or affect the amounts due plaintiffs under the agreement should be decided by the company’s independent public accountants.

Paragraph 9 does not grant the accountants the broad power of construing the agreement. There will have to be an interpretation of the literal language of the agreement, and in construing that language consideration will have to be given to the subject matter as well as to the object and purpose of the agreement. Cf. Tessmar v. Grosner, 23 N. J. 193, 201 (1957). Consideration will also have to be given to such other determinants as the practical construction the parties gave to their agreement. Cf. Journeyman Barbers, etc., Local 687 v. Pollino, 22 N. J. 389, 394 (1956). All though accountants possess an expertise in mathematically ascertaining the amounts that might be due plaintiffs as well as in accepted accounting procedures, they have no special expertise in construing the contract provisions that should enter into determining what factors are to be included in that calculation. As we read the agreement, the intent of the parties was that the company’s accountants would perform their function only after all disputes as to the interpretation of the agreement were resolved by the arbitrators.

Accordingly, the order should be modified so as to provide that all disputes with regard to the interpretation of the agreement which in any way affect or pertain to payments due plaintiffs are to be settled by the arbitrators in the first instance. The accountants will then calculate the actual amounts due in light of that interpretation.

The order, as so modified, is affirmed.


author: Lane, J. A. D.

text:
    LOUIS RIVELL, PLAINTIFF-APPELLANT, v. CIVIL SERVICE COMMISSION AND THE CITY OF NEWARK, DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division.
    Argued May 25, 1971
    Decided June 2, 1971.

      Before Judges Kilkenny, Halpern and Lane.

      Mr. Anthony T. Colasanti argued the cause for appellant (Mr. Angelo R. Bianchi, attorney; Mr. Colasanti, on the brief).

      Mr. W. William Modes, Assistant Corporation Counsel, argued the cause on behalf of respondent City of Newark.

      Mr. George F. Kugler, Jr., Attorney General, attorney for Civil Service Commission (Mr. David S. Litwin, Deputy Attorney General, of counsel) submitted statement in lieu of brief.
   The opinion of the court was delivered by

Lane, J. A. D.

Plaintiff appeals from a decision of the Civil Service Commission upholding and affirming the action of the City of Newark in removing him from the Police Department.

Plaintiff received a regular appointment as a patrolman of the City of Newark from a Civil Service list on June 6, 1964. On October 22, 1968 charges were preferred against him for violations of Rule 7:4.7, Rule 6 :14 and Rule 6 :2 of the Newark Police Department Rules and Regulations. The basis of the first charge was that when plaintiff had been ordered by the police surgeon to report from sick leave on August 22, 1968, he failed to inform his superior officer that he had been returned to duty. The basis of the second charge was that plaintiff had received a lawful order from the police surgeon to report to duty from sick leave and failed to comply with that order. The third charge alleged that plaintiff had absented himself from work without any superior officer giving him permission to do so. At a departmental hearing on January 3, 1969, he was found guilty of all the charges and suspended for 30 days. In addition, he was assessed an additional 30-day suspension as a result of alleged insubordinate conduct towards the Police Director at the time of the departmental hearing.

On Januray 27, 1969, Lt. William E. Weber gave plaintiff, who was still on suspension, an order to report to the First Precinct station so that he could be served with final notice of disciplinary action concerning the three charges referred to above. Earlier, on January 24, he had first been ordered to the station by Weber. When plaintiff advised Weber on the telephone on January 27 that he was not going to come into the precinct, Captain Charles M. Zizza came on the telephone and gave him a direct order on the telephone to report to the precinct at 3 p.ir. or charges would be instituted against him. Captain Zizza testified:

When Rivell heard this he said to me “You order me?” And there was some laughter and again, in quotes “I’m not taking orders from you. You did enough to me already.”

At the time of the conversation, plaintiff was officially assigned to Captain Zizza’s command, and it was Captain Zizza’s function to serve him with the final notice of disciplinary action. Lt. Weber’s telephone conversation with plaintiff was made at the direct request of Captain Zizza.

As a result of plaintiff’s failure to report to the precinct as ordered, charges were preferred against him as follows:

CHARGE I: Violation of Rule 3:2.5, Chapter 3, Rules and Regulations — Lawful Orders. “Police officers . . . shall always respond to the lawful orders of superior officers . . .” (TWO COUNTS)
Specifications:
1. Patrolman Louis J. Rivell, First Precinct, while on departmental suspension January 24, 1969, at or about 1 :15 p.m., having received a lawful order, via telephone, from Lieutenant William Weber, a superior officer, to report to the First Precinct station on January 27, 1969, did, without just cause, fail and neglect to comply with such order.
2. Patrolman Louis J. Rivell, First Precinct, while on departmental suspension January 27, 1969, at or about 12:30 p.m., having received a lawful order, via telephone, from Captain Charles M. Zizza, a superior officer to report to the First Precinct station by 3:00 p.m. on said date, did, without just cause, fail and neglect to comply with such order.
CHARGE II: Violation of Rule 6:8, Chapter 6, Rules and Regulations — ACTS OF INSUBORDINATION — “Department members shall not commit acts of insubordination or disrespect to any superior officers.” (TWO COUNTS)
Specifications:
1. Patrolman Louis J. Rivell, First Precinct, while on departmental suspension January 27, 1969 was insubordinate and disrespectful to Lieutenant William Weber, a superior officer, in that, at or about 12:30 p.m. he communicated with Lieutenant Weber, instead of reporting in person as previously ordered, via telephone, at the First Precinct station and did, knowingly and wrongfully say to him, “If you want to serve me with the final papers you can do so by bringing them to me at a store at 354 Broadway”, or words to that effect, and upon being advised that he was required to submit reports of receipt of the papers, the said Patrolman wrongfully replied, “I am not going to submit any reports, if you want to serve the papers at the Broadway address I will take them but I am not going to submit any reports”, or words to that effect; and upon being told by the Lieutenant that he was still subject to department rules and regulations while under suspension, Patrolman Rivell did further wrongfully reply, “When the department starts paying me after my sixty days, I’ll start obeying orders”, or words to that effect.
2. Patrolman Louis J. Rivell, First Precinct, while on departmental suspension January 27, 1969, at or about 12:30 p.m., was disrespectful and insubordinate to Captain Charles M. Zizza, in that after being ordered by said superior officer, via telephone, to report to the precinct station by 3 :00 p.m., on said date or department charges would be brought against him, Patrolman Rivell did, knowingly and wrongfully reply, “You order me”, and eommenced to laugh, and then he did further wrongfully reply, “I’m not taking any orders from you, you did enough to me already”, or words to that effect.

At a departmental hearing held April 11, 1969, plaintiff was found guilty of the charges and was discharged from Ms position as a patrolman in the Newark Police Department.

A hearing before the Civil Service Commission was held December 29, 1969. The Commission reversed the findings on the initial three charges that resulted in the 30-day suspension, holding that there was a lack of credible evidence to support them. Further, the additional 30-day suspension for insubordination was reversed on the ground that the evidence did not show an act of insubordination.

As to the two additional charges based upon plaintiff’s failure to report, the Commission stated:

This appellant, though under suspension, for a defined period of time, was a member of the Newark Police Department, a quasi-military unit and was bound by the Rules and Regulations of that department. His failure to report as commanded by two superiors is a serious breach of conduct of a member of such a quasi-military organization. It is the Hearer’s determination that the attitude as displayed by this appellant does not make him good timber for membership in a Police Department as does his failure to accept the responsibility and adhere to the Rules and Regulations of the department. Orders of superior officers must be complied with or the fiber of the organization is torn asunder.

The action of the appointing authority in removing plaintiff from the Police Department was upheld and affirmed.

Plaintiff argues on appeal that the order to report to the precinct was not a lawful order because at the time it was given plaintiff was not an active member of the Newark Police Department, being suspended. Essentially the argument is that a suspension is the equivalent to a removal for the duration of the suspension. Therefore, it is argued an employee under suspension is not subject to any orders during the time of the suspension.

Suspension has been defined as only a “temporary forced withdrawal from the exercise of office” as opposed to a dismissal. Murley v. Township of Raritan, 117 N. J. L. 357 (Sup. Ct. 1936). But see Ballurio v. Castellini, 29 N. J. Super. 383, 390 (App. Div. 1954). A suspended policeman remains as part of the department, for suspension is simply a matter of discipline of the policeman while a member of the department. Murley v. Township of Raritan, supra. Therefore, he should be subject to any applicable rules and regulations.

The rules and regulations of the Newark Police Department define suspension as (Rule 7:13.1) :

Suspension is the act of temporarily denying a police officer or a civilian employee the privilege of performing his duties as a consequence of alleged violation of Department Rules and Regulations or violation of the law. While under suspension, the police officer or the civilian employee shall not receive pay.

This definition refers only to the suspension from duty. It does not indicate that the suspended policeman need not follow other rules and regulations.

Rule 7:13.7, however, provides:

RELIEVED FROM DUTY. A police officer under suspension is relieved from the duty of reporting to a precinct station or other command, unless he is directed otherwise by the Chief of Police. He shall be responsible for any further violations of the Departmental Rules and Regulations while under suspension.

The clear intent of this rule is to make two separate points. The first relates to a policeman’s performance of duty from which he has been suspended. Rule 7:13.1. The second sentence states that he, nevertheless, remains subject to the Department Rules and Regulations.

A policeman who' is off-duty is not allowed to act with disregard to department regulations but must comport himself properly and follow all rules and regulations. Hailes v. Kearny, 101 N. J. L. 401 (E. & A. 1925); Herbert v. Atlantic City, 87 N. J. L. 98, 101 (Sup. Ct. 1915). Moreover, a policeman who has taken a leave of absence without pay is still subject to the rules and regulations and may be dismissed for a violation of the rules during the leave of absence. Ward v. Keenan, 3 N. J. 298 (1949). It follows logically that a suspended policeman being disciplined as a member of the police department is also subject to applicable rules, and regulations.

Since plaintiff while suspended was subject to the rules and regulations, he would be required to respond to all lawful orders of his superiors. Rule 3 :2.5. Ilis refusal to obey an order while not on active duty properly made him subject to dismissal. Cf. Ward v. Keenan, 3 N. J. 298, supra. As long as one remains a member of the police department, he must comport himself properly and not do any acts which tend to impair the morale and discipline of the police department. Ward v. Keenan, supra; In re Cohen, 56 N. J. Super. 502, 507 (App. Div. 1959), certif. den. 31 N. J. 297 (1960) ; Martin v. Smith, 100 N. J. L. 50, 52 (Sup. Ct. 1924).

Plaintiff contends that the order given to him to report to the precinct was not a lawful order because under Eule 7:13.7 a suspended officer is relieved from reporting “to a precinct station or other command” unless he is directed otherwise by the Chief.

Plaintiff misinterprets the rule to say that he cannot be required to report to the precinct station for any reason whatsoever unless directed to do so by the Chief of Police. This interpretation ignores the fact that Eule 7 :13.7 refers to duty as does the definition of suspension in Eule 7 :13.1. It would be logical to require an order from the Chief of Police to allow a suspended policeman to return to duty. It would not be logical to require an order from the Chief of Police to have a suspended policeman report to a precinct station for routine paper work. Thus, the order to report to the station other than for return to duty from a superior, not the Chief of Police, was a lawful order. A commonsense interpretation of Eule 7:13.7 is that the term “reporting to a precinct station or other command” means “reporting for duty from suspension.”

Upon appeal to the Civil Service Commission, the Commission held a hearing de novo and upheld Rivell’s dismissal. In its review of the disciplinary matter the Commission should uphold the action of the Police Director as long as the discipline was not so severe as to amount to a clear abuse of discretion. Newark v. Massey, 93 N. J. Super. 317, 325 (App. Div. 1967); Newark v. Civil Service Comm'n, 115 N. J. L. 26, 30 (Sup. Ct. 1935). Where the Police Director’s action is warranted on the facts, it is arbitrary for the Commission to overrule it. Moorestown Tp. v. Armstrong, 89 N. J. Super. 560 (App. Div. 1965), certif. den. 47 N. J. 80 (1966).

When on appeal to the appellate court, the action of the Commission will only be upset if it was clearly arbitrary, capricious or unreasonable, or if it lacked fair support in the evidence. Campbell v. Dept. of Civil Service, 39 N. J. 556, 562 (1963); Moorestown Tp. v. Armstrong, supra, at 565.

We have reviewed with care the testimony taken before the Commission and find that there was substantial credible evidence to support the decision and order of the Commission.

At the oral argument plaintiff urged that we consider that the punishment was excessive.

Manjr New Jersey cases indicate the importance of maintaining discipline within the paramilitary organization to a police department. Refusal to obey orders and disrespect cannot be tolerated. Such conduct adversely affects the morale and efficiency of the department. State v. Naglee, 44 N. J. 209, 221 (1965), rev’d on other grounds, Garrity v. State, 385 U. S. 493, 87 S. Ct. 616, 17 L. Ed. 2d 562 (1967); Newark v. Massey, 93 N. J. Super. 317, 323 supra; In re Emmons, 63 N. J. Super. 136, 140 (App. Div. 1960); Robbins v. Town Council of Bloomfield, 13 N. J. Misc. 353, 178 A. 212 (Sup. Ct. 1935); Hoar v. Preiskel, 3 N. J. Misc. 494, 128 A. 857 (Sup. Ct. 1925).

The evidence supported a finding that plaintiff had disobeyed a lawful order and had been disrespectful to a superior officer. His dismissal from the police department was an appropriate action.

The order and decision of the Civil Service Commission is affirmed.


author: Halpern, J. A. D.

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. ARTHUR A. JORDAN, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued May 25, 1971
    Decided June 4, 1971.

      Before Judges Kilkenny, Halpern and Lane.

      Mr. Edward Hannigan, Assistant Deputy Public Defender, argued the cause for appellant (Mr. Stanley C. Van Ness, Public Defender, attorney; Mr. Hannigan, of counsel and on the brief).

      Mr. David N. Dubrow, Assistant Prosecutor, argued the cause for respondent (Mr. Joseph P. Lordi, Essex County Prosecutor, attorney; Mr. Dubrow, on the brief).
   The opinion of the court was delivered by

Halpern, J. A. D.

Following a jury trial, defendant was convicted of the unlawful possession of heroin. He appeals from the judgment of conviction. He contends the court erred in denying his motion, made before trial, to suppress the evidence seized by the police without a search warrant.

On January 26, 1970 Detectives Gockeler, Jackson and Pepe, members of the narcotic squad of the Newark Police Department, while making an investigation, were on the sixth floor of a common hallway in the Park Lane Hotel attempting to listen at the door of room 602. The door opened, and a woman was about to exit therefrom. Gockeler, who had eight years experience on the narcotic squad, testified at the hearing on the motion to suppress that he looked into the room and saw defendant drop a stack of 15 glassine envelopes to the floor. Suspecting that the envelopes contained narcotic drugs, ho arrested defendant and confiscated the envelopes. Subsequent tests confirmed his suspicion. Only Gockeler testified for the State on the suppression hearing. The defendant did not testify either at the suppression hearing or the trial. In fact, defense counsel conceded at the suppression hearing that what Gockeler did was not a search. It is obvious from the record that the trial judge limited his factual findings because of such concession. One may assume from defense counsel’s concession and the trial judge’s statement that counsel and the court understood Gockeler’s testimony to be that he was in the hallway when the envelopes were dropped.

The factual issue in dispute is whether, as the State contends, Gockeler saw defendant drop the envelopes while standing in the hallway, or, whether as defendant contends, he saw it after entering the room. If defendant’s contention is correct, the police would have committed an unlawful trespass making the subsequent arrest and seizure invalid. Wong Sun v. United States, 371 U. S. 471, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963); Johnson v. United States, 333 U. S. 10, 68 S. Ct. 367, 92 L. Ed. 436 (1948). If the State’s contention is correct, the arrest and seizure were valid because Gockeler had a right to be in the common hallway and what fell into plain view from that vantage point was not a search. State v. Smith, 37 N. J. 481, 495-496 (1962), cert. den. 374 U. S. 835, 83 S. Ct. 1879, 10 L. Ed. 2d 1055 (1963). It gave the police probable cause to arrest defendant and seize the envelopes. State v. Di Rienzo, 53 N. J. 360, 385 (1969); Harris v. United States, 390 U. S. 234, 236, 88 S. Ct. 992, 19 L. Ed. 2d 1067 (1968).

We have carefully studied the transcript of the hearing on the motion to suppress. While it is arguable that Gockeler’s testimony is subject to a different construction, we are satisfied he was in the hallway when he made his observations. We are also satisfied he had probable cause to suspect the envelopes contained narcotics and to arrest defendant. State v. Contursi, 44 N. J. 422, 432-433 (1965).

Defendant further argues that in considering his motion to suppress we should take into account the testimony of all the witnesses adduced at the trial of the indictment. We are not referred to any New Jersey authority in support of this contention. The federal cases cited are not helpful. They were decided before suppression motions were reviewable on appeal under the federal rules. See 8A Moore’s Federal Practice § 41.08 [5] and § 41.09.

Suppression motions are required to be made and determined before trial, otherwise they are deemed waived. R. 3:5-7. Thus, the losing party may move before trial for leave to appeal. R. 2:2-4 and R. 2:5-6. To permit defendant to go beyond the record made on the suppression motion would destroy the purposes and the scheme of the rules. The rules contemplate a full airing of the evidence before trial. On this appeal we may only consider whether the motion to suppress was properly decided based on the evidence presented at that time. The court’s decision becomes the law of the ease and is binding on whatever judge ultimately tries the case. See State v. Contursi, 44 N. J. 422, 425 (1965) where defendant, at trial, attempted to renew his motion to suppress and Justice Hall, speaking for the Court, said it was “very properly rejected summarily.” See also State v. Romeo, 43 N. J. 188, 202 (1964), cert. den. 379 U. S. 970, 85 S. Ct. 668, 13 L. Ed. 2d 563 (1965).

Presumably, if defendant could show that the motion was denied because of fraud, or that the interest of justice required a new hearing on the merits (e. g., perjury), such would be permissible under the rules. No such showing having been made, there is no reason to consider the trial record on the issue presented.

Affirmed.


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

text:
    STATE IN THE INTEREST OF A. C. STATE OF NEW JERSEY, COMPLAINANT-RESPONDENT, v. A. C., JUVENILE-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued January 5, 1971
    Decided June 3, 1971.

      Before Judges Lewis, Matthews and Mintz.

      Mr. William S. Gurkin, assigned attorney, argued the cause for appellant.

      Mr. Elson P. Kendall, Assistant Prosecutor, argued the cause for respondent (Mr. Karl Asch, Union County Prosecutor, attorney; Mr. Arthur J. Timins, Assistant Prosecutor, on the brief).
   The opinion of the court was delivered by

Lewis, P. J. A. D.

A. C., a juvenile, appeals from an adjudication of delinquency in the Union County Juvenile and Domestic Relations Court, whereby he was committed to the “New Jersey Reformatory for Males”; the sentence was suspended and the youth was placed on probation. He now seeks a reversal of that adjudication on the grounds that (1) the automobile search, the seizure of the alleged marijuana and his arrest were unlawful; (2) the State failed to produce at the trial the best evidence, i. e., the marijuana itself, and (3) it was not proven that he was in the car for an unlawful purpose so as to justify prosecution under the “Good Account” or Juvenile Delinquency Statutes.

The record reveals that on July 30, 1968, at about 3:07 a.m., Officers Pinho and Mulhearn of the Elizabeth Police Department were conducting a routine patrol in the vicinity of an area which Pinho described as a “very high crime area and * * * .a very large narcotic area.”

Pinho testified that as his patrol car was proceeding in a southerly direction on Fifth Street he noticed a car parked on MagnoHa Avenue in which “one or two heads appeared to duck down as [they] rode past.” The suspicion of the officers was aroused and they stopped to investigate the parked car, which was occupied by defendant A. C., his brother S. C., H. G. and Elwood Thomas. Except for the latter, all of the others were under 18 years of age. Defendant was at that time 16 years old. The doors of the parked vehicle were locked and the windows shut save for a partially opened right rear window. The car was owned by defendant’s uncle.

When Officer Pinho approached the automobile he asked Thomas what they were doing there and he is said to have replied that they were just sitting in the car. According to defendant, all of the occupants replied, “We wasn’t doin’ nothin’ but listen to the radio.” Officer Pinho noticed that there was smoke in the car and that two of of the occupants, one of whom he recalled was Thomas, were smoking cigarettes. When he focused his flashlight in the rear of the automobile he observed a homemade cigarette, which he believed to be a marijuana reefer, on the rear seat between H. G. and Thomas. He also observed two manila envelopes — “the type of which marihuana is carried in” — on the rear floor. After the contents of the manila envelopes were examined, Pinho concluded that marijuana had been found. The occupants of the car were then placed under arrest for possession of that drug. At this juncture we note Pinho’s- testimony that he had received training in a police academy with respect to narcotics and marijuana and that within the last two years he had made 40 to 50 arrests involving marijuana.

It is plain from the evidence that the items seized were properly transmitted by the officer to the chemist employed by the New Jersey State Police and that the samples analyzed were, in fact, marijuana. There is no substance to the argument that the chain of possession from the time Pinho seized the alleged marijuana to the date of trial was not adequately established. The proofs plainly reveal a proper chain of possession.

It has long been settled that objects in the plain view of a law enforcement officer, who has a right to be in the position to have that view, are subject to seizure and may be introduced into evidence. Harris v. United States, 390 U. S. 234, 236, 88 S. Ct. 992, 19 L. Ed. 2d 1067 (1968); State v. Bell, 55 N. J. 239, 248 (1970); State v. Hock, 54 N. J. 526, 533-535 (1969), cert. den. 399 U. S. 930, 90 S. Ct. 2254, 26 L. Ed. 2d 797 (1970) ; State v. DiRienzo, 53 N. J. 360, 385 (1969). The police actions in the instant circumstances did not constitute a search of the vehicle, but assuming that they did, the standard of the validity of such actions would be reasonableness and not certitude. See State v. Gosser, 50 N. J. 438, 447 (1967), cert. den. 390 U. S. 1035, 88 S. Ct. 1434, 20 L. Ed. 2d 295 (1968); State v. Miller, 47 N. J. 273, 278 (1966). We find no demonstration of unreasonableness.

The argument that the “best evidence” — the marijuana itself — was not introduced is devoid of merit. The best evidence rule pertains to the proof of writings. 4 Wig-more, Evidence (3d ed. 1940), §§ 1173-1175 at 301-304; McCormick, Evidence § 195, at 408-409 (1954). Moreover, even if the seized marijuana, the real evidence, were the best evidence of marijuana possession, its destruction, in the instant circumstances, would not necessarily preclude the introduction of other “secondary” evidence. See In re Rasnick, 77 N. J. Super. 380, 387 (Cty. Ct. 1962). Defendant’s contention ignores Pinho’s personal observations, the findings of the State’s chemist, and the testimony of witnesses who identified the marijuana.

Einally, defendant urges that the State failed to prove that he was engaged in or intended to engage in an unlawful activity and that he cannot properly be convicted under either of the statutes alleged to have been violated.

The complaint charged that A. C. and his two juvenile companions were delinquent children under N. J. S. A. 2A :4r-14 in that they failed to give a good account of themselves, in violation of N. J. S. A. 2A-.170-1, because they were in a motor vehicle with an adult person “when Police confiscated two bags of alleged marijuana and 1 homemade marijuana cigarette,” which conduct was “detrimental to the health, morals and general welfare of the juveniles,” citing. N. J. S. A. 2A:4-14(2) (m). The statutory references in pertinent part provide:

Any person who is apprehended and cannot give a good account of himself, or who is engaged in an illegal occupation and who is in this state for an unlawful purpose, is a disorderly person. In any prosecution under this section the fact that the person apprehended cannot give a good account of himself or is engaged in an illegal occupation is prima facie evidence that he is present in this state for an unlawful purpose. * * * [N. J. S. A. 2A:170-1]
Except as stated in section 2A :4-15 of this Title, the juvenile and domestic relations court shall have exclusive jurisdiction to hear and determine all cases of juvenile delinquency.
Juvenile delinquency is hereby defined as the commission by a child under 18 years of age.
s¡: í¡: sjt H« *• * # 'A
(2) of the following acts:
# * * * $ * $ $
(m) Deportment endangering the morals, health or general welfare of said child. [N. J. S. A. 2A :4-14]

In State v. Zito, 54 N. J. 206, 219 (1969), N. J. S. A. 2A:170-1 was held not to be void for vagueness, but the “good account” provision was construed to require the arresting officer to offer the accused an opportunity to explain. However, the last sentence of the provision to the effect that the absence of a good account shall be evidence of presence of an unlawful purpose was declared invalid. The court then added: “We stress that an arrest cannot be made because a person refused or failed to give a good account. An arrest can be made only if in the total circumstances there is probable cause to believe the individual was present at the place for an unlawful purpose, i. e., to commit a crime or a petty offense.” (At 219-220).

Subsequently, this statute was challenged in the federal courts in an action to declare it unconstitutional and to enjoin its enforcement, with particular reference to prosecutions then pending under the statute. Note Karp v. Collins, 310 F. Supp. 627 (D. N. J. 1970), wherein a three-judge district court, constituted pursuant to 28 U. S. C. A. §§ 2281, 2284 to consider the constitutionality issue, concluded :

*• s * The present statute, despite the limited operation to which the Supreme Court of New Jersey has restricted it, remains too vague and fails to define with constitutional definiteness when one crosses the boundary between thought and criminal conduct. It fails to provide adequate standards to insure a fair administration of the law.* * * * [310 F. Supp. at 634]

On appeal to the United States Supreme Court, the judgment of the District Court was vacated on March 1, 1971 and the ease was remanded for further consideration in light of the court’s recent decisions in Younger v. Harris, 401 U. S. 37, 91 S. Ct. 746, 27 L. Ed. 2d 669 (1971), Samuels v. Mackell, 401 U. S. 66, 91 S. Ct. 764, 27 L. Ed. 2d 688 (1971) and Fernandez v. Mackell, 401 U. S. 66, 93 S. Ct. 764, 27 L. Ed. 2d 688 (1971), which dealt with the doctrine of federal nonintervention in pending state prosecutions. Kugler v. Karp, 401 U. S. 930, 91 S. Ct. 933, 28 L. Ed. 2d 210 (1971).

Accordingly, the existing law of this State remains as enunciated in State v. Zito, supra. State v. Young, 57 N. J. 240, 260-264 (1970), cert. den. 402 U. S. 929, 91 S. Ct. 1537, 38 L. Ed. 3d 863 (1971). As an intermediate appellate tribunal, we adhere to the decision of our Supreme Court in those cases. Any departure should be undertaken “by the court of last resort, and not by the Appellate Division.” Casale v. Housing Authority, City of Newark, 43 N. J. Super. 53, 62 (App. Div. 1956). Accord, Silagy v. State, 105 N. J. Super. 507 (App. Div.), certif. den. 54 N. J. 506 (1969); State v. Moffa, 79 N. J. Super. 425, 432-433 (App. Div. 1963), rev’d o. g. 42 N. J. 258 (1964).

We return now to the instant matter. Although Officer Pinho was never asked to testify whether defendant was called upon to give an account for his presence in the parked car, the record is clear that he gave an account to the extent that he stated, “We wasn’t doin’ nothin’ but listen to the radio.” In any event, defendant’s arrest and adjudication of delinquency were based upon factors other than what he said or failed to say. The evidence could support at least one of two inferences — (a) that the juvenile was in the car possessing and smoking marijuana, or (b) if not, that he was in the car associating with others who were smoking marijuana. Either inference is sufficient to support a finding of guilt under N. J. S. A. 3A:A-14(3) (m). There was ample evidence from which unlawful purpose may have been inferred. Since the adjudication rested upon competent testimony and was not against the weight of the evidence, it should remain undisturbed. See State v. Johnson, 43 N. J. 146, 161-163 (1964), and State v. Welsch, 29 N. J. 152, 156 (1959).

The order under review is affirmed.

      footnotes are omitted.


author: Labrecque, J. A. D.

text:
    PLEASANTVILLE TAXPAYERS, THOMAS WILSON, ROY E. DEGAN, THOMAS BURKE, JOHN D. YOUNG, AND ALL OTHERS SIMILARLY SITUATED AS A CLASS, PLAINTIFFS-APPELLANTS, v. CITY OF PLEASANTVILLE, ACKLEY ELMER, TAX ASSESSOR, AND RAYMOND BECKMAN, JR., TAX COLLECTOR, DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued May 17, 1971
    Decided June 7, 1971.

      Before Judges Sullivan, Collester and Labrecque.

      Mr. Morton Feldman argued the cause for appellants.

      Mr. Sheppard A. Guryan argued the cause for respondents (Messrs. Lasser, Lasser, Sarolcin & Hochman, attorneys).
   The opinion of the court was delivered by

Labrecque, J. A. D.

Plaintiffs instituted the present action, seeking relief for themselves and others similarly situated from alleged discriminatory assessments levied upon certain properties located in a nine block area in the City of Pleasantville. They subsequently moved for an order that they be permitted to maintain the suit as a class action, that on behalf of all property owners involved, and upon payment of a single filing fee, they be permitted to file and maintain a single appeal to the Atlantic County Board of Taxation, covering all of the properties within the area. They also moved that defendant city be required to maintain an account record of all taxes paid by each property owner and of the alleged unlawful portion thereof and for other relief. Defendants moved for summary judgment. The latter motion was granted and the additional relief sought was denied. See Pleasantville Taxpayers v. Pleasantville, 111 N. J. Super. 377 (Law Div. 1970).

Plaintiffs thereafter moved for a new trial or, in the alternative, that the order for summary judgment be reopened or set aside on the ground of newly discovered evidence. They also sought leave to amend their complaint and have the matter transferred to the Chancery Division. Their motions were denied and they appeal from the summary judgment in favor of defendants and from the denial of their subsequent motions.

The present action is directed against the reassessment of some 161 parcels of real property located within the nine block area in question. The owners of 138 parcels have authorized the bringing of the present suit. In addition, the owners of 100 (or 103) parcels filed appeals to the county board. What appellants basically seek is to bypass the county board and the Division of Tax Appeals. Alternatively, they seek a mandatory direction from the Law Division requiring those agencies to permit them to test the amounts of the contested assessments by the filing of a single petition, the payment of a, single fee and the holding of a single hearing involving all the parcels in question (although the owners of 58 of them failed to appeal to the county board).

The main thrust of plaintiffs’ argument appears to be that while the assessments in question are highly discriminatory, the amount of the tax saving to each taxpayer in the event of favorable action on his appeal would be small (approximately $61) and the handling of the matter as a single, class action, either in the Law Division or the administrative tribunals, would result in such a saving of time, manpower and fees as to call for the relief which they seek.

Any taxpayer who is aggrieved by the assessed valuation of his property or because he is discriminated against may appeal to the county board of taxation of the county in which the property is located. N. J. S. A. 54:3-21. Should he be dissatisfied with the decision of the county board upon his appeal he may appeal to the Division of Tax Appeals, N. J. S. A. 54:2-39, where a de novo review is afforded him. In addition, by N. J. S. A. 54:2-35 “any [other] action or determination” by the comity board is made reviewable bjr the Division of Tax Appeals. All actions of the Division are reviewable in the Appellate Division. R. 2:2-3 (a) (2).

By the foregoing a full administrative review is made available to any taxpayer who desires to contest the assessment upon his property. The administrative agencies have •been held to be especially fitted for the task and to possess the expertise necessary to provide adequate relief. See J. H. Becker, Inc. v. Marlboro Tp., 82 N. J. Super. 519, 529 (App. Div. 1964). Cf. Delaware, Lackawanna and Western R. R. Co. v. Neeld, 23 N. J. 561, 575 (1957). The procedure to be followed in invoking the jurisdiction of both the county board and the Division is a simple one, calculated to facilitate the filing of appeals by small property owners, many of whom appear before the county board without attorneys. All that is required is the completion, filing and service of a simple verified petition (usually a printed form available from the agency) in the case of each parcel whose assessment is challenged. The filing fees are nominal ($1 to $10), depending upon the valuation of the property involved.

Ordinarily the courts will not preempt the jurisdiction of county boards in the absence of countervailing circumstances demonstrating that the interest of justice requires otherwise. R. 4:69-5; Central R. R. Co. v. Neeld, 26 N. J. 172, 178-181 (1958), cert. den. 357 U. S. 928, 78 S. Ct. 1373, 2 L. Ed. 2d 1371 (1958). We find no such countervailing circumstances here. Mere differences of opinion as to whether the challenged assessments are based upon true value do not justify judicial interference. J. H. Becker, Inc. v. Marlboro Tp., supra, 82 N. J. Super. at 529.

Plaintiffs cite Baldwin Const. Co. v. Essex County Bd. of Taxation, 16 N. J. 329 (1954) and Ridgefield Park v. Ber gen County Bd. of Taxation, 31 N. J. 420 (1960). We find neither decision to be apposite. In Baldwin the county board had ordered specific corrections and revisions in the tax list of the City of East Orange in an area arbitrarily fixed by the board during the process of revising the assessments pursuant to N. J. S. A. 54:4r-46, and had plaintiff been relegated to its administrative remedy the county board would have been reviewing its own acts. In Ridgefield Park v. Bergen County Bd. of Taxation, supra, the court was dealing with an action to compel future compliance by local assessors with the statutory mandate. In Nolan v. Fitzpatrick, 9 N. J. 477 (1953), on which plaintiff also relies, the court was presented with an issue of law, i. e., whether the requisition of the Hudson County Boulevard Commissioners was mandatory upon the county board of freeholders, and it was held that to require determination of that legal question by the administrative agency, subject to further judicial review, would result in useless delay which in the circumstances could not be countenanced. See also Ward v. Keenan, 3 N. J. 298, 302, 308-309 (1949).

We have reviewed the remaining grounds urged by appellants and find them to be without merit. The proceedings for review of tax assessments provided by N. J. S. A. 54:3-21 and N. J. S. A. 54:2-39 comprise an integrated whole, designed to secure a prompt adjudication of disputes involving the valuation and assessment of real property. In general, proceedings before the county board are informal, probably by reason of the fact that any appeal therefrom is a de novo one. Evidence admissible in the Law Division on the issue of value or discrimination would be equally admissible both there and in the Division. The mere fact that a majority of the members of the board may belong to the same political party as the assessor, standing alone, affords no ground for bypassing it. We are given no reason to believe that the members of the board or the Division will not perform their full statutory duty, or that they will not reasonably cooperate with the appealing taxpayers and their counsel in consolidating or listing together appeals involving the same questions of law and fact so as to effect as great a saving of time and expense as possible, consistent with the board’s other commitments, in hearing them.

Plaintiffs sought an order from the court below permitting them, alternatively, to pursue their administrative remedy before the county board as a class, upon the filing of but one petition and the payment of but one fee for the 161 properties. The court was without jurisdiction to grant such relief. Appeals to the .county board are governed by N. J. S. A. 54:3-21.

The judgment of the Law Division is affirmed.

      At the oral argument we were advised that the board had already-heard and granted some measure of relief as to a number of the appeals filed with it.


author: Carton, J. A. D.

text:
    COUNTY OF BERGEN, APPELLANT, v. DEPARTMENT OF CIVIL SERVICE OF THE STATE OF NEW JERSEY, ET ALS., RESPONDENTS, v. ROY MORRISEY AND COUNTY DETECTIVES ASSOCIATION OF NEW JERSEY, INTERVENORS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued May 10, 1971
    Decided June 7, 1971.

      Before Judges Conford, Kolovsky and Carton.

      Mr. Edwin C. Eastwood, Jr., Assistant County Counsel, argued the cause for appellant (Mr. Michael J. Ferrara, County Counsel, attorney).

      Mr. David S. Litwin, Deputy Attorney General, argued the cause for respondents (Mr. George F. Kugler, Jr., Attorney General of New Jersey, attorney).
    Statement in lieu of brief filed on behalf of County Detectives Association of New Jersey, Inc. by Paul R. Williams, Jr.
   The opinion of the court was delivered by

Carton, J. A. D.

The main question required to be resolved on this appeal is whether a county board of chosen freeholders or the county prosecutor, as employers, have the power and authority to transfer members from the county police force to full-time investigative positions in the prosecutor’s office without first obtaining approval from the Civil Service Commission.

The issue comes before us as the result of an appeal by-plaintiff County of Bergen from an order of the Civil Service Commission directing that a competitive examination be held for county detective’s positions in that county. Plaintiff brought an action in the Superior Court to enjoin the scheduled examination, the publication of the list of grades resulting from that examination, and to prevent the Civil Service Commission from disapproving the payroll of the county police officers presently assigned to the prosecutor’s office.

The Law Division declined to restrain the examination, but did issue a show cause order and restraint against publishing the examination grades and against disapproval of the payroll. After a hearing on the order to show cause, the Law Division transferred the matter to this court on the ground that the complaint involved a challenge to a final determination of a state administrative agency. B. 3:3-3 (a) (2). The restraints previously imposed were continued pending order of this court. We accelerated this appeal because of the important public issue involved.

The factual background is not in substantial dispute. Since 1966 a practice of transferring members of the county police department to full-time investigative work in the county prosecutor’s office has existed in Bergen Connty. This practice, originally adopted by agreement between the connty freeholders, a former chief of county police, and the former prosecutor, has been continued to the present time without being approved or sanctioned by the Civil Service Commission. Under this arrangement a total of 21 county police officers are now assigned to the prosecutor’s staff-in investigative positions.

As a result of complaints made to it, the Department of Civil Service conducted an investigation and condemned the practice as unauthorized and contrary to law. The Civil Service Commission then issued the order presently under appeal directing that a competitive examination he held for the position of Bergen county detective. An examination was held on September 18, 1970 but the results have not yet been published.

Plaintiff’s position is that the hoard, as employer of the county police, has the right to assign them to duties in the prosecutor’s office by virtue of the power conferred upon it by the Legislature to establish a county police force. That legislation does indeed authorize the hoard to establish a police force for regulation of traffic N. J. S. A. 40 :22-l. Its provisions empower officers so appointed to enforce the motor vehicle laws, to regulate traffic, and to arrest for the commission of any crime in any part of the county N. J. S. A. 40 :22 — 2 and 5.

But even if we assume the correctness of plaintiff’s argument that county policemen are law enforcement officers and not merely traffic police, the general power to create such a law enforcement body cannot he interpreted to include the right to transfer the members of that force, designated as a classified service, to another Civil Service position (even assuming the similarity of such positions) without the knowledge and consent of the Civil Service Commission.

Indeed, N. J. S. A. 11:22-8 carefully prescribes the prerequisites to the granting of approval of any such transfer:

A person holding an office or position in the classified service may, on his own request and with the consent of the commission, be transferred to a similar office or position in another office, department or institution. No transfer shall be made from an office or position in one class to that of another class nor to an office or position for original entrance to which there is required by this subtitle, or the rules adopted pursuant thereto, an examination involving essential tests or qualifications different from or higher than those required for original entrance to an office or position held by such person.

This section is expressive of the legislative scheme, evidenced in other provisions of the Civil Service Act, that transfers shall not be a matter of routine but made only under conditions and upon terms which harmonize with the overall concept of the Civil Service system. Even in the ease of temporary transfers, although consent of the employee is unnecessary, such transfers are governed by rules approved by the Commission and such placements are subject to its review N. J. S. A. 11:11 — 3; N. J. A. C. 4:15-4.

Nor does the fact that the Legislature has imposed upon the prosecutor’s office the general duty of enforcing the law add to the persuasiveness of plaintiff’s argument. The prosecutor is obliged to “use all reasonable and lawful diligence for the detection, arrest indictment and conviction of offenders against the laws.” N. J. S. A. 2A:158-5. To this end the Legislature has conferred upon the prosecutor authority to appoint county detectives (N. J. S. A. 2A:157-2) and county investigators (N. J. S. A. 2A:157-10). But the exercise of that power- to appoint must be in keeping with limitations contained in the other pertinent provisions of the statutory grant of authority.

With respect to the position of county detective, N. J. S. A. 2A:157-2 provides:

The prosecutor in each of the several counties of this State may appoint such number of suitable persons, not in excess of the number, and at salaries not less than the minimum amounts, in this chapter provided, to be known as county detectives, to assist tire prosecutor in the detection, apprehension, arrest and conviction of offenders against the law. Persons so appointed shall he in the classified service of the civil service and shall possess all the powers and rights and he subject to all tile obligations of police officers, constables and special deputy sheriffs in criminal matters. [Emphasis added]

The underscored portion of this provision makes it clear that the Legislature intended the appointment oE county detectives to be controlled by the Civil Service provisions, particularly those pertaining to the classified service. The appointments must be made according to merit as determined by competitive examinations — not by personal choice of the prosecutor.

The position of county investigator differs from that of county detective. N. J. S. A. 2 A :157-10 provides:

In addition to the office of county detective, there is created in the office of the prosecutor, the office or position of county investigator which shall be in the unclassified service of the civil service. The prosecutor of each of the several counties of this state may appoint such number of suitable persons, not in excess of the number, and at salaries not less than the minimum amounts, in this act provided, to be known as county investigators, to serve at his pleasure and subject to removal by him, and to assist the prosecutor in the detection, apprehension, arrest and conviction of offenders against the law. Persons so appointed shall possess ail of the powers and rights and be subject to all the obligations of police officers, constables and special deputy sheriffs, in criminal matters.

The position of investigator is within the unclassified service. Such an employee serves at the pleasure of the prosecutor.

The prosecutor has power under this provision to appoint to the unclassified position of county investigator any qualified individuals, including members of the Bergen county police. In such case, however, county policemen so appointed would serve at the will of the prosecutor as do all other appointees to the investigator position. They could not retain the Civil Service status they enjoyed as county police. If the contrary were true, the prosecutor could, in effect, establish the position of county investigator in the classified service. Eor the same reason, any permanent transfer from the classified service to an unclassified status may not be permitted without subverting the Civil Service scheme.

Nor can the transfer of the 21 employees from the county police to the prosecutor’s office as county detectives be justified by virtue of the provisions ot N. J. S. A. 11:26B-2. This provision of itself confers no power to transfer. It merely preserves the pension, retirement and annuity rights of employees who have been granted leave of absence for the purpose of serving in a similar position in certain other government offices. Apart from the question whether there has been compliance with other statutory conditions to the granting of such transfers (N. J. S. A. 11:22-8 and N. J. S. A. 11:26B-1 to ll:26B-3), plaintiff county neither sought nor obtained consent of the Commission prior to such transfers. Significantly, the Commission expressly disapproved them upon their discovery. Thus, up to the time of the institution of the present proceeding none of these transfers was in accordance with the statutory requirements and therefore cannot be held to have been validly made.

Contrary to the county’s assertion, there is no basis for permitting an application for lateral transfers at this time. The Commission has already made the factual determination that irrespective of compliance with the statutory notice and consent requirements, the positions of county policeman and county detective are substantially dissimilar. The wholesale transfer of county police to the county detective service was considered “highly irregular” in that it “violated the applicable statutes as well as the rules and administrative policies of the Civil Service Commission and the Department of Civil Service.” These determinations find ample support and we may not disturb them.

The action of the Department of Civil Service is affirmed and the. stays heretofore granted against it are dissolved.