text:
    ALEXANDER MANZO, PLAINTIFF-APPELLANT, v. CALVIN D. EDDINFIELD, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Submitted October 29, 1973
    Decided December 6, 1973.
    Before Judges Lynch, Mehler, and Michels.

      Joseph Bultafuoco, attorney for appellant.

      Messrs. Gurry and Conlan, attorneys for respondent (Mr. Thomas P. McHugh on the brief).
   Per Curiam.

Plaintiff appeals from an order of the Hudson County District Court denying his motion for payment out of the Unsatisfied Claim and Judgment Fund (Eund). He had recovered a $1,500 judgment against the uninsured defendant herein for property damage to his automobile.

The sole ground for denial of payment from the Eund, as stated in the court’s order, was that “at the time of the accident and damage to his vehicle, plaintiff was unable to establish that he was covered by liability insurance, a prerequisite to payment from the Unsatisfied Claim and Judgment Eund.” The Eund contends that he was not entitled to payment “if his vehicle was uninsured at the time of the accident.” It also argues that N. J. S. A. 39:6-?0(d) bars recovery by plaintiff. It is said that an applicant for payment must meet the provision of that subsection to the effect that (so far as pertinent here) : “(d) He was not at the time of the accident, operating or riding in an uninsured motor vehicle owned by him or his spouse, -parent or child * * (Emphasis added). And, it is argued, plaintiff failed to sustain his burden to establish that he was a “qualified person” within that subsection.

The pertinent facts here are undisputed. Plaintiff’s parked vehicle was struck and damaged by another uninsured vehicle on January 9, 1966. It had been parked by plaintiff’s son who had gone to a diner across the street from where it was parked. Plaintiff did not accompany his son. Ho one was in the ear when it was hit.

After judgment against defendant in the suit against the uninsured driver, plaintiff moved for payment from the Fund. The motion was adjourned several times for the reason that it was considered that, in order to succeed, plaintiff had to prove that he was insured at the time of the accident and plaintiff was given time to establish that fact. We do not reach the question as to whether plaintiff’s proofs established that he was, in fact, insured (the proofs were equivocal on this issue) because we hold that the mere fact that plaintiff was uninsured does not bar his recovery and, under the circumstances of this case, plaintiff has satisfied the relevant subparagraph (d) of N. J. S. A. 39:6-70. In other words we hold that, in the context of that subparagraph, plaintiff need not show that he was insured to be a “qualified person.” To comply therewith all he has to establish is that: (a) “He [plaintiff owner of the car, (b)] was not at the time of the accident, operating or riding in, [c] an uninsured vehicle, [d] owned by him or 'his spouse, parent or child * * (Emphasis added). Thus, if we assume, as we do here, that plaintiff’s car was uninsured, he will not be barred from recovery unless he was “operating or riding in” that uninsured vehicle.

The fundamental error in the Fund’s defense is its contention that all uninsured owners of automobiles are precluded from recovery against the Fund. On a superficial consideration, involving one overall concept of the purpose of the Fund act, i. e., to influence uninsured drivers and owners to obtain insurance (cf. Robson v. Rodriquez, 26 N. J. 517 at 525-526), the argument is understandable. But, the legislative enactment does not bar all uninsured owners from recovery from the Fund. If that were the intention it could have been accomplished by clearly saying so, e. g., that no uninsured owner may recover, etc.’ All that the statute says, in this context, is that a certain class of uninsured owners may not recover from the Fund, i. e., those who are “riding in or operating” an uninsured vehicle may not recover.

That not all uninsured owners are precluded from recovery from the Fund was recognized in Robson v. Rodriquez, supra. The court there said:

The fact that the classification does not preclude all uninsured owners of motor vehicles from recovery does not impair its constitutional validity. It is the operation or use of a motor vehicle by an uninsured owner that results in his preclusion from recovery under subsection (d). The Legislature may have concluded that an owner who is not present in his vehicle and could exercise no control over it at the time of an accident is not as great a hazard to either the public or the Fund as an owner who is present in his vehicle at the time of the accident. It is also conceivable that the Legislature did not wish to malee mere ownership of an uninsured motor vehicle the test of exclusion, as it may have considered the possibility that an uninsured owner might permit his vehicle to be operated by an insured driver when the owner is not present. Or that the vehicle might be damaged when not in operation •— when it is parked or garaged. That the motor vehicle might be stolen or operated by one without the owner’s permission is also conceivable. It may be, too, that the Legislature determined that the preclusion from recovery from the Fund by an owner who sustains injury or damage while he is operating or riding in his uninsured vehicle would probably be sufficient to induce the procurement of liability insurance and thus further the legislative objective of mitigating the evil which necessitated the act without enlarging the classification to include all uninsured owners. [At 525; emphasis added]

The foregoing construction of subsection (d) conforms to the statutory language and peculiarly fits the circumstances here. At the time of the accident the "operation and use” of the vehicle was not by plaintiff but by his son. Plaintiff was "not present” in the vehicle and "could exercise no control over it at the time of the accident,” and the ear was damaged "when it [was] parked.” All of: these considerations dictate that the Legislature did not intend that plaintiff bo precluded from recovery. Lastly, Robson constituted a clear and authoritative interpretation of the statute, pronounced in 1958, and it has not been amended since. Construction of a statute by the courts, supported by long acquiescense on the part of the Legislature or failure to amend, while not conclusive, is persuasive evidence that such construction is in accordance with the legislative intent. Lemke v. Bailey, 41 N. J. 295, 301 (1963).

There remains the question as to whether it may be said that plaintiff nevertheles may be said to have been "operating and riding in” his car at the time of the accident although it was in his son’s possession. Mere statement of the question would seem to answer itself. But the Fund answers the question in the affirmative, citing Gilbert v. Unsatisfied Claim and Judgment Fund Board, 85 N. J. Super. 143 (App. Div. 1964), certif. den. 44 N. J. 403 (1965), Stupin v. Sanchez, 113 N J. Super. 84 (App. Div.), aff’d o. b. 59 N. J. 240 (1971), and Robson v. Rodriquez, supra.

None of the cited cases is apposite. In Gilbert the infant plaintiff was a, passenger in an uninsured vehicle which her mother had parked at the curb while she went into a store to purchase candy for her daughter. In the meantime, the ear was struck by an automobile owned and driven by uninsured persons. The court held that in the plain and ordinary meaning of the word the infant plaintiff was “riding” in the car “in the same way a person on a journey would commonly and ordinarily be said to be riding, even though her progress forward was temporarily stopped by an obstacle in the road, or by stopping to make inquiry, or by stopping at a traffic light.” 85 N. J. Super, at 151. Plaintiff here was not in the ear at the time of the accident. In Stupin defendant was an uninsured motorist who ran over plaintiff (also uninsured) while plaintiff was changing a flat tire on his ear which he had been driving. The court held that plaintiff was “operating” the car because, as the court said: “Fixing the flat tire was part of operating the car to enable plaintiff to get home.” 113 N. J. Super, at 85. And in Robson the Supreme Court held that to permit recovery by an administrator ad prosequendum of the decedent who had been killed while operating the uninsured vehicle would reach an absurd result when admittedly decedent herself could not have recovered for her injuries if she had lived As said above, the court in Robson did not consider it irrational, or contrary to the legislative intent, to permit an owner of an uninsured vehicle to recover for its damage if it was struck when parked, and the owner was not present or exercising any control over the car. That is the situation here. Plaintiff was not “riding” in the uninsured vehicle as was plaintiff in Gilbert, nor was he “operating” it, as was plaintiff in Stupin. Therefore, he is a “qualified person” under N. J. S. A. 39:6-70(d), and is entitled to payment of his damages from the Fund.

The order denying plaintiff’s motion for payment by the Fund of the $1,500 judgment is reversed and the matter remanded for entry of an order directing such payment by the Fund. Eo costs.


source: Caselaw Access Project

author: Crahay, J. A. D.

license: Public Domain

text:
    STATE OF NEW JERSEY, PLAINTIFF-APPELLANT, v. EDDIE LEE GIBSON, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey-Appellate Division
    Submitted November 5, 1973
    Decided December 11, 1973.
    Before Judges Leonard, Allcorn and Crahay.

      Mr. Stephen B. Champi, Somerset County Prosecutor, attorney for appellant (Mr. Leonard N. Arnold, Assistant Prosecutor, of counsel and on the brief).

      Messrs. Rodriguez, Corodemus & Justin, attorneys for respondent (Mr. Michael R. Justin, on the brief).
   The opinion of the court was delivered by

Crahay, J. A. D.

Defendant was convicted by a jury of possession of heroin in violation of N. J. S. A. 24:21-20, and thereupon moved for a new trial on the ground that the trial court erred in denying his request that the jury be instructed that if they found that the involved heroin was intended for defendant’s own use, they could find him guilty as a disorderly person under N. J. S. A. 24:21-20 (b). The motion was granted, the trial court concluding that he should have given the requested instruction, and further, that the case presented an opportunity for appellate reexamination of the principle enunciated in State v. Reed, 34 N. J. 554 (1961). On leave granted, the State appeals.

The essential facts are that defendant and another were present in an apartment dwelling which was raided by police executing a search warrant. According to the police, both men were attempting to flush tinfoil packets down a toilet. The police were successful in retrieving three of the packets later found to contain heroin.

Defendant admitted to being a heroin user and there was some evidence from which the jury might infer that he had recently used it. He denied possession of heroin for any purpose at the time of his apprehension. The jury resolved the issue of possession against him and he does not suggest meaningfully that the verdict was against the weight of the evidence.

Reed, supra, held that the Uniform Narcotic Drug Law (then N. J. S. A. 24:18-1 et seq.) proscribed the unauthorized possession of narcotics for any purpose, including the possessor’s imminent use. Notwithstanding that at that time N. J. S. A. 2A:170-8 made unauthorized use of narcotics a disorderly person offense, the Supreme Court in Eeed reversed the ruling of the Appellate Division, 62 N. J. Super. 303 (1960), which had remanded the case to the trial court on the ground that the defendant was entitled to a jury instruction that if he possessed the narcotics solely for his own imminent consumption he was not guilty of the offense charged.

The reason for the legislative distinction between “possession” and “use” is patent and was succinctly stated by Justice Proctor in Reed:

•s -s i» 'wiipn then was the unqualified term “possess” used? Undoubtedly, to facilitate enforcement. It is well known that it is extremely difficult to apprehend and eonviet drug traffickers. Illegal transfers do not take place under the eyes of the police. They are clandestine operations carefully guarded from official scrutiny. The proscription of possession, without more, facilitates the enforcement of the law against trafliekers by eliminating the burden of proving a transfer. If possession is interpreted not to include possession for imminent personal use, the purpose of facilitating enforcement against traffickers would be seriously hindered * * *. [34 N. J. at 565]

This appeal asks simply whether the rule in Reed has been legislatively altered by the New Jersey Controlled Dangerous Substances Act, N. J. S. A. 24:21-1 et seq., enacted in 1970. We are satisfied that it has not.

Under the new Act possession of controlled dangerous substances and possession thereof with intent to distribute are proclaimed to be misdemeanors. N. J. S. A. 24:21-19 (a) (1) and 20(a). A person who uses or is under the influence of a controlled dangerous substance is deemed a disorderly person, N. J. S. A. 24:21-20(b). Significantly, the Legislature did not exempt from criminal liability as misdemeanants those persons who possessed the drugs for their own use. To accept defendant’s argument, we would have to conclude that the Legislature was not aware of the dramatic difference between “possession” and “use,” as enunciated in Reed and in its own prior enactments. No persuasive argument to that end is addressed to us nor is there any warrant in law or reason for so holding.

It had been the rule in this State that the County Court lacked jurisdiction to try a defendant as a disorderly person. State v. McGrath, 17 N. J. 41 (1954). McGrath was effectively overruled in State v. Saulnier, 63 N. J. 199 (1973). Saulnier was decided on June 19, 1973, months after the trial of the instant matter, and was explicit in stating that “the overruling of McGrath is to be deemed prospective and to apply solely to future trials.” At 208.

Even if the new approach, as allowed by Saulmer, to the treatment of “lesser included offenses” was applicable to this case, defendant on this record could not enjoy it. Por there it was stated:

* * * There need not be a jury charge with respect to an included offense unless there is a rational basis in the evidence for a finding that the defendant was not guilty of the higher offense charged but guilty of the lesser included offense, [at 206]

Clearly here, there was no basis whatever for such a finding. The proof of possession was patently distinguishable from the proof of use.

Accordingly, there was no warrant for the trial court’s granting the motion for a new trial. The order under review is reversed and the matter remanded to the trial court with directions to sentence defendant pursuant to R. 3 :21-2 and 4.

Reversed.


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

text:
    WESTCHESTER FIRE INSURANCE CO., RICHARD B. HOLCOMBE, ALICE HOLCOMBE AND WILBUR S. HOLCOMBE, PLAINTIFFS-APPELLANTS, v. THE CONTINENTAL INSURANCE COMPANIES, NEW JERSEY MANUFACTURERS INSURANCE CO., MOTOR CLUB FIRE & CASUALTY CO., JACKIE W. EISNER, ETC., DEFENDANTS-RESPONDENTS. ELMER RICHARD POTENT, GUARDIAN AD LITEM FOR RICHARD M. POTENT, AN INFANT, ELMER RICHARD POTENT AND CHARLOTTE POTENT, INDIVIDUALLY, PLAINTIFFS, v. JACKIE W. EISNER, HALLIE EISNER, ELMER EISNER, SR. AND RICHARD B. HOLCOMBE, SR., ETC., DEFENDANTS.
    Superior Court of New Jersey Appellate Division
    Argued November 7, 1973
    Decided November 27, 1973.

      Before Judges Carton, Seidman and Goldmann.

      Mr. Edward B. Meredith argued the cause for appellants Westchester Fire Insurance Co. and Holcombe (Messrs. Meredith, Meredith & Chase, attorneys).
    Mr. Andrew J. Smithson argued the cause for respondent The Continental Insurance Companies (Messrs. Dietrich, Stockman & Lake, attorneys).

      Mr. Richard D. Catenacci argued the cause for respondent New Jersey Manufacturer’s Insurance Company (Messrs. Hughes, McElroy, Connell, Foley & Geiser, attorneys).

      Mr. Jerome S. Lieb argued the cause for respondents Motor Club Fire & Casualty Co. and Eisner (Messrs. Lieb, Teich & Berlin, attorneys).

      Mr. Frank V. Walsh, Jr. argued the cause for plaintiffs Potent. (Mr. Gregory V. Hopkins, on the brief).
   The opinion of the court was delivered by

Carton, P. J. A. D.

This case presents novel questions as to coverage afforded under automobile and homeowner’s insurance policies by reason of the act of a passenger who threw a stick from a moving automobile, which struck a passing bicyclist. The basic issue is whether the injury sustained by the bicyclist was one “aris[ing] out of the ownership, maintenance or use of the owned automobile * * *” within the meaning of the automobile insurance policies. Corollary to this issue is the applicability of an exclusionary clause of the homeowner’s policy making its coverage inapplicable to “the * * * use of automobiles * *

The underlying facts are stark and briefly stated. Jackie Eisner was driving his father’s automobile. Eichard Holcombe, a passenger in the right rear seat, threw a piece of wooden molding with a nail in it out of the right rear window. The stick struck Eichard Potent, an infant, above the left eye as he was riding his bicycle.

The Potent boy, through his guardian ad litem, and his parents per quod, brought action against Eisner, the driver of the automobile, and his parents, and also against the passenger, Holcombe, and his parents, on various theories:

(1) against Jackie, the driver, because Holcombe, the passenger, threw the piece of wood from the ear allegedly with his knowledge and consent;

(2) against the Eisners, Sr. for negligence in the care, control and discipline of their child;

(3) against Jackie for placing the piece of wood in the car knowing that it would constitute a nuisance because of temptation to a passenger to throw it from the ear;

(4) against passenger Holcombe for negligently throwing it from the vehicle, and

(5) against Holcombe’s parents for negligence in the care, control and discipline of their child.

Motor Club Fire & Casualty Company and Westchester Fire Insurance Co. had issued homeowner’s insurance policies for the Eisners and Holcombes, respectively. They filed answers on behalf of these defendants.

Later Westchester and the Holcombes sought a declaratory judgment to declare that (1) the National Union Insurance Company (Eisner’s automobile liability carrier) was obligated to defend the action and pay any judgment which might result; (2) New Jersey Manufacturers was obligated to defend and pay its proportionate share of any judgment, or alternatively, to provide excess insurance coverage, and (3) the Westchester Fire and Motor Club homeowner’s policies were inapplicable.

On cross-motions for summary judgment in the declaratory judgment action, the trial judge ruled that the homeowner’s insurance carriers, and not the automobile liability insurance carriers, were obligated to defend and be responsible for any ensuing judgment. Motor Club, the Eisners, Westchester Fire and the Holcombes all appealed.

We consider first whether coverage is afforded under the automobile policies. Parenthetically, we note that the automobile carriers for the Eisners and the Holcombes have agreed as to which has primary responsibility in the event coverage under the automobile policies is held to exist. Hence we need not consider the question of primary and excess coverage.

Both Eisner, Sr. and Holcombe, Sr. had standard family automobile liability policies on their cars. The Eisner policy was issued by National Union Insurance Company, with policy limits of $25,000 and $50,000. Holcombe, Sr.’s New Jersey Manufacturers’ policy had limits of $250,000 and $500,000.

Under the terms of each policy the carrier agreed with the insured named in the declaration (Eisner,. Sr. and Holcombe, Sr., respectively),

To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of:
A. bodily injury ^ sustained by any person
arising out of the ownership, maintenance or use of the owned automobile or any non-owned automobile, and * * * defend any suit alleging such■ bodily injury * * * and seeking damages which are payable under the terms of this policy, even if any of the allegations of the suit are groundless, false or fraudulent * * *. [Emphasis added]
The carrier also agreed to insure the following:
• (a) With respect to the owned automobile,
(1) the named insured and any resident of the same household,
(2) any other person using such automobile, provided the actual use thereof is with the permission of the named insured;
(b) With respect to a non-owned automobile,
(1) the named insured,
(2) any relative * * *;
(c) Any other person or organization legally responsible for the use of
(1) an automobile * * * not owned * * * provided the actual use thereof is by a person who is an insured under (a) or (b) above with respect to such automobile

The definitions clause of the policies provided that “ ‘named insured’ means the individual named in * * * the declarations and also includes his spouse, if a resident of the same household”; that “‘non-owned automobile’ means any automobile * * * not owned by the named insured or any relative * * * and that “ ‘use’ of an automobile includes the loading and unloading thereof.”

The critical issue is whether the injury allegedly sustained by plaintiff Potent comes within the scope of the policy provision “arising out of the ownership, maintenance or use” of the automobile, and whether the insurance company is obligated to “defend [the] suit alleging such bodily injury.”

Our research has produced little authority in New Jersey on the meaning of the provision. There is a sharp division of authorities in the courts of other jurisdictions as to its proper interpretation. See Annotation, “Automobile Liability Insurance-Risks,” 89 A. L. R. 2d 150 (1963), which collects many of the cases.

While there is no New Jersey case directly in point, certain eases have supplied certain guidelines. We start with the well settled proposition that if the language of a policy will support two meanings, one favorable to the insured and the other favorable to the insurer, that which will sustain coverage will be applied. Mazzilli v. Acc. & Cas. Ins. Co. of Winterthur, 35 N. J. 1, 7 (1961). Specifically, it has been held that the language of the omnibus clause of a policy must be construed broadly in favor of the insured and injured persons to effectuate a strong legislative policy of assuring financial protection for innocent victims of automobile accidents. Indemnity Ins. Co. v. Metropolitan Cas. Ins. Co. of New York, 33 N. J. 507, 512-513 (1960). Applicable also is another settled principle, that purchasers of insurance are entitled to “the broad measure of protection necessary to fulfill their reasonable expectations.” In the language of our Supreme Court, “their policies should be construed liberally in their favor to the end that coverage is afforded To the full extent that any fair interpretation will allow.’ ” Kievit v. Loyal Protection Life Ins. Co., 34 N. J. 475, 482 (1961).

We consider, then, the language of this provision in light of these general rules of interpretation. In the phrase “ownership, maintenance or use,” the-term “use” is the key word. One commentator has remarked that this term is a broad catch-all designed to include all proper uses of the vehicle not falling within the term “ownership [and] maintenance.” See Baudin v. Traders and Gen. Ins. Co., 201 So. 2d 379 (La. Ct. App. 1967), writ refused 251 La. 224, 203 So. 2d 557 (1967); see also Annotation, 89 A. L. R. 2d at 163, supra.

The court’s comment in Indemnity Ins. Co., supra, 33 N. J. at 513, on the word “use” in the omnibus clause also sheds some light on its meaning here:

* * * ’pp-g think that in this context the words use and operation are not synonymous. The use of an automobile denotes its employment for some purpose of the user; the word “operation” denotes the manipulation of the car’s controls in order to propel it as a vehicle. Use is thus broader than operation. Brown v. Kennedy, 141 Ohio St. 457, 48 N. E. 2d 857 (Sup. Ct. 1943) ; Maryland Casualty Company v. Marshbank, 226 F. 2d 637 (3 Cir. 1955). One who operates a car uses it, Cronan v. Travellers Indemnity Co., 126 N. J. L. 56 (E. & A. 1941), but one can use a car without operating it. An aritomobile is being used, for example, by one riding in it although another is driving.

In the present case it seems clear that the Eisner vehicle was being used by the driver as well as by his passenger. Gronquist v. Transit Casualty Co., 105 N. J. Super. 363 (Law Div. 1969). As Justice Proctor stated in Indemnity employment for some purpose of the user Ins. Co., supra at 513 “[t]'he use of an automobile denotes its

Thus, in the present case the Eisner vehicle was employed for purposes of transportation — that is, to carry those in it from one place to another. Allegedly, it was also being used by Eisner, Sr. for the transportation of tools and materials.

The more difficult question is the meaning of the phrase “arising out of.” The specific inquiry is whether the injury allegedly sustained by the infant plaintiff arose out of defendants’ use of the automobile. The automobile insurance carriers maintain that the motor vehicle in this case was simply the situs of an accident which could have occurred anywhere. They reason that the injury resulted, not from the use of the automobile, but from Holcombe’s intentional act in throwing the stick from the vehicle. Consequently, they urge, the words “arising out of the * * * use * * *” must be interpreted to require a showing of causality between the injury and the use before coverage exists.

We agree with the automobile carriers’ contention that the phrase “arising out of the * * * use” is not synonymous with “while riding.” As one court commented, such a construction would write from the contract the words “arising out of.” See Speziale v. Kohnke, 194 So. 2d 485 (La. App. 1967).

But we do not agree that the words “arising out of the * * * use” require or justify the interpretation that before coverage exists it must appear that the injury is a direct and proximate result, in a strict legal sense, of the use of the automobile. We think that such a construction would do equal violence to the normal meaning of those words. Specifically, the policy does not require that the injury be directly or proximately caused by the automobile itself or by its motion or operation. If such a meaning was intended to be projected by this important clause of the standard family automobile policy, it is difficult to understand why a phrase which clearly conveyed the idea of proximate causation, such as “caused by” or “resulting from,” was not employed.

We consider that the phrase “arising out of” must be interpreted in a broad and comprehensive sense to mean “originating from” or “growing out of” the use of the automobile. So interpreted, there need be shown only a substantial nexus between the injury and the use of the vehicle in order for the obligation to provide coverage to arise. The inquiry should be whether the negligent act which caused the injury, although not foreseen or expected, was in the contemplation of the parties to the insurance contract a natural and reasonable incident or consequence of the use of the automobile, and thus a risk against which they might reasonably expect those insured under the policy would be protected. See 7 Am. Jur. 2d, § 82 at 387 (1963). Whether the requisite connection or degree of relationship exists depends upon the circumstances of the particular ease.

We are satisfied that such a relationship between the alleged injury and defendants’ use of the automobile was presented by the allegations of the complaint.

It is true that the direct cause of the injury was Holcombe’s act in throwing the stick from the car. However, it would seem to make no difference, so far as insurance coverage is concerned, whether the stick blew out of the window, fell out, or was pushed or thrown out. The evidence of the trial will, of course, determine whether that act was intentional or not. In this connection we observe that the test is not what the ultimate fact may be as to the cause of the injury, but whether the allegations of the complaint on their face fall within the risk insured against. See Ohio Cas. Ins. Co. v. Flanagin, 44. N. J. 504, 512 (1965). We note that there is nothing to suggest Holcombe had any intention of causing bodily harm to plaintiff or any other person.

In our mobile society the act of throwing or dropping objects from moving vehicles is not such an uncommon phenomenon that such occurrence may not be anticipated, nor so inconsequential that members of the public need no financial protection from the consequences thereof. However antisocial such conduct may be, everyday experience tells us that various objects are thrown or permitted to fall from moving vehicles. Common examples are lighted cigarettes and cigars, food and drink containers, and other debris. Any one of such objects has a potential for injury to persons on and along the highway. It is of some significance that the Legislature has seen fit to prohibit the loading of vehicles in such a manner as to permit them to spill or scatter their contents on the street. N. J. 8. A. 39:4-77. In the same vein, the Legislature has proscribed the throwing or dropping of objects from vehicles while on the highway. N. J. 8. A. 39:4-64.

In our view, although Holcombe’s act in throwing the stick from the automobile may not have been foreseen or expected, it was a sufficiently foreseeable consequence of the use of the vehicle to mandate coverage under the terms of the policies. We think it was within the reasonable expectation of the parties that the insureds be provided with protection against the consequences of such an act. We think also that a member of the public who sustained injury as a result of such an unfortunate occurrence might reasonably be expected to look to the vehicle and those using it as the source of redress.

This interpretation is consonant with the general rule of construction of insurance policies referred to above ■ — • that policy language which permits more than one construction must be liberally construed in favor of the insured to provide coverage. It also comports with the reasonable expectation of the parties as to the scope of coverage to be provided under these policies.

Decisions of other jurisdictions are not greatly instructive in view of the strong legislative policy of this State of affording wide coverage to innocent victims of automobile accidents under the omnibus clause. Although there is a dearth of case law dealing with the ejection from vehicles of objects which are normally harmless, the recent case of Wy oming Farm Bureau Mutual Ins. Co. v. State Farm Mutual Liab. Ins. Co., 467 F. 2d 990 (10 Cir. 1972), is apposite. There a group of teenagers had been riding in an automobile driven by Sinner. Lorenzen, a passenger sitting in the right rear of the car, threw an empty vodka bottle from the vehicle which struck the curb, shattered and caused an eye injury to a bystander. Sinner testified that he was not aware the bottle was being thrown from the vehicle, but other testimony indicates that he was. After reviewing the facts and law, the court held both Sinner and Lorenzen “were thus shown to have been culpable and at the same time to have been using the vehicle within the meaning of the State Farm policy.”

We observe that a considerable number of cases dealing with the meaning of this clause involve gunshots and ejection of bombs, firecrackers and other intrinsically dangerous objects from motor vehicles. See' Annotation, 89 A. L. R. 2d 150, supra. Generally, the courts in such cases hold that no coverage exists. Such courts have found it difficult to contemplate any causal connection between the discharge of guns or other explosive devices and their happenstance location in the car. Cases of this kind are readily distinguishable from the present. The stick which was thrown cannot fairly be said to be in the same category of intrinsically dangerous objects as guns and explosive devices. Hence we need not decide whether coverage might also exist in New Jersey under those circumstances.

We turn now to the question whether coverage is extended under the homeowner’s insurance policies issued to Eisner, Sr. and to Holcombe, Sr. for the injury allegedly sustained by plaintiff.

The homeowner’s policy defining the “insures” to include the named assured (among others), and residents of his household under the age of 21 in the named assured’s care. The policy specifically provides liability coverage with respect to animals and watercraft owned by an insured and with respect to farm tractors.

In the general liability provision the carrier agrees to provide:

1. COVERAGE V. — PERSONAL LIABILITY:

(a) Liability: to pay on behalf of the Insured all sums which the Insured shall become legally obligated to pay as damages because of bodily injury or property damage, and the Company shall defend any suir against the Insured alleging such bodily injury or property damage and seeking damages which are payable under the terms of this policy, even if any of the allegations of the suit are groundless, false or fraudulent; but the Company may make such investigation and settlement of any claim or suit as it deems expedient.

The apparent broad reach of this provision is greatly decreased, however, by reason of numerous exclusions contained in the homeowner’s policy. The policy expressly provides that:

[Tjhis Policy Does Not Apply:
(b) Tinder Coverages E and F, to the ownership, maintenance, operation, use, loading or unloading of (1) automobiles * * *.

We recognize that the general rule of construction of exclusions in insurance policies is that they must be strongly construed against the insurer. However, we may not disregard their clear import and intent.

Homeowner’s policies of the kind here involved are of relatively recent origin. Their growth and development can be generally ascribed to the rise of tort claims of the kind made against homeowners and their families, and the need for wider protection than that afforded under ordinary residential liability policies. Although the homeowner’s policy is not confined to protection for risks arising strictly out of the use of residential premises, it is, as the name suggests, home-oriented.

It seems clear to us that the language in the policies is mutually exclusive and that, as used in the homeowner’s policy, is specifically designed to exclude the coverage provided under language in the standard family automobile policy for injuries arising out of the use of the motor vehicle insured thereunder. The significance of the exclusion in the homeowner’s policy of coverage relating to use of automobiles is underscored by the specific inclusion of coverage with repeet to animals, watercraft and tractors.

We think that an interpretation which excludes coverage in the present case is in keeping with the reasonable expectations of the parties to the homeowner’s insurance contract.

The net result is that the- automobile carriers are required to defend and provide coverage in the actions brought by plaintiff Potent et al. against the Eisners and the Holcombes. The carriers which issued the homeowner’s policies are not required to do so.

The judgment is reversed.


author: Goldmann, J. A. D.,

text:
    IN THE MATTER OF INFORMATION RESOURCES CORP., A NEW JERSEY CORPORATION.
    Superior Court of New Jersey-Appellate Division
    Argued February 13, 1973
    Decided November 27, 1973.

      Before Judges Goldmann, Fritz and Lynch.

      Mr. Arthur J. Gajarsa, of the District of Columbia Bar, argued the cause pro hac vice for appellant Information Resources Corp. (Mesesrs. Popper, Bain, Bobis, Gilfillan & Rhodes, attorneys).

      Mr. Thomas H. Sullivan, Deputy Attorney General, argued the cause for respondent Bureau of Securities (Mr. George F. Kugler, Jr., Attorney General of New Jersey, attorney; Mr. Stephen Skillman, Assistant Attorney General, of counsel; Mr. Sullivan on the brief).
   The opinion of the court was delivered by

Goldmann, J. A. D.,

Temporarily Assigned. Information Resources Corp. (IRC) appeals from an order of the Chief of the Bureau of Securities prohibiting it, for a period of one year commencing May 15, 1972 and terminating May 15, 1973, from availing itself of (a) the registration of securities provisions of N. J. S. A. 49:3-61 and 62 and Burean Regulation 13 :13-52, and (b) the exemption from registration provisions of N. J. S. A. 49 :3-50(a) and (b) and Regulation 13 :13-53. The order further directed that the company “cease and desist from directly or indirectly negotiating, offering for sale, or issuing any of its securities from or within the State of New Jersey.” The order was based on a determination that IRC had engaged in the sale of securities in violation of the Uniform Securities Law, N. J. 8. A. 49: 3-47 et seq.

IRC was incorporated in New Jersey on March 17, 1970. From July 1970 to February 1971 it maintained offices in New Jersey, first in Union and then in Mountainside. Since then its offices have been located in New York City.

The company was formed to engage in the general manufacture and sale of computer peripheral equipment and related systems — specifically, the development of a data acquisition and recorder terminal. In order to fund the project the board of directors authorized the issue and sale of a single class of common stock. Neal L. Hade, of Sea Cliff, N. Y., now the corporate president, was the moving force behind IRC and received 609 shares for the $25,000 and other assets, technical know-how and prior services he had contributed. Hade and Sal Mancino, of Seaford, N. Y., had before the incorporation been partners in developing the proposed product. Mancino received 100 shares for his contribution of some $5,000 in electronic components and for certain technical services. At the same time Mel Margolies, of Little Neck, N. Y., secretary-treasurer of IRC, received 50 shares for services he had rendered. Thereafter relatives, friends and former clients came forward to request that they be allowed to invest in the enterprise. Shares in varying amounts were sold to them, the price increasing as the terminal project progressed from wooden prototype to working model.

As of January 7, 1972 the company had issued 1,000 shares to 20 individuals. The first shares were issued on August 17, 1970 (to Hade), and the last on November 22, 1971. Of the 20 shareholders 4 transferred their 46 shares to an attorney, and a stock certificate was duly issued to him as their trustee in exchange. If one assumes (as appears to be the case) that the four beneficiaries were residents of this State at the time they acquired their stock, the total number of New Jersey purchasers was eight. Eleven were residents of and acquired their shares in New York State, and one in Maryland. Within the 12-month period from December 17, 1970 to December 17, 1971 — the period chosen by the Bureau Chief — there were sales of IRC stock to 17 persons, 8 of them residents of New Jersey.

The proceedings in the Bureau were initiated by an order requiring IRC to produce certain specified documents relating to the corporate structure and to securities sales. The company complied on January 10, 1972, at the same time seeking an exemption from the registration of securities under N. J. S. A. 49:3-50(b) (9). On February 14, 1972 the Bureau issued an order directing the company to show cause why it should not be declared to have offered or sold and' issued its shares without complying with the registration requirements of our Uniform Securities Law’ or obtaining an exemption therefrom. In response to that order the company appeared for a hearing before the Chief of the Bureau, acting as hearing examiner. He filed his findings of fact and conclusions of law in regular course, and on May 5, 1972 issued the order of prohibition here on appeal.

IRC’s principal contention is that the Bureau erred in holding that the company’s sales of its ¿hares were not exempt from registration under N. J. S. A. 49:3-50(b) (9). That section reads:

(b) The following transactions are exempted from the provisions of [27. J. S. A. 49:3-60, “Registration of Securities,” and 27. J. S. A. 49:3-63, “Filing of Sales Literature”] of this act: ********
(9) any transaction pursuant to an offer directed by the offeror to not more than 10 persons * * * in this State during any period of 12 consecutive months, whether or not the offeror or any of the offerees is then present in this State, if (i) the seller reasonably believes that all buyers are purchasing for investment, and (ii) no commission or other remuneration is paid or given directly or indirectly for soliciting any prospective buyer in this State; but the bureau chief may by rule or order, as to any transaction, withdraw or further condition this exemption, or increase or decrease the number of offerees permitted, or waive the conditions in subdivision (i) and (ii) * *.

The Bureau Chief held that sales of securities by a New Jersey corporation to non-Jersey residents constituted the sale of securities “in this State” and could be considered by the Bureau in determining whether IRC was exempt from the provisions of the Uniform Securities Law under the “private offering” exemption provisions of N. J. S. A. 49:3-50(b)(9). He found that the company had exceeded the permissible number of sales and was therefore in violation of the law because it had not registered or obtained an exemption from registration.

In brief outline, the cited exemption section states in unambiguous language that security transactions are exempt from the registration requirements of the Act if (a) directed to not more than ten offerees in this State within a period of 12 consecutive months, (b) the purchases are for investment, and (e) there is no commission or other remuneration paid or given for soliciting a prospective buyer in this State.

There is nothing in the record showing that remuneration of any kind was given or paid to the offeror (solicitor).

It is also evident from the record that all purchases of IRC shares were for investment purposes. The uncontroverted evidence was that purchasers were requested to sign, and did sign, an “investment letter” indicating their intent of purchasing for investment. Although the Bureau Chief manifested a somewhat negative attitude toward the letter — he said he: had never seen one quite like it — the thrust and significance of the statements contained therein cannot be ignored. Certainly they formed a basis for the company, through its officers and directors, to reasonably believe that the purchasers’ intent was to invest, not speculate. All that the quoted statute requires is that “the seller reasonably believes that all buyers are purchasing for investment.”

This brings us to consideration of the number of offers made in this State in any period of 12 consecutive months. It was uncontroverted that IRC common stock was sold to a total of 20 persons in a 20-month period from March 17, 1970, when IRC was incorporated, to November 22, 1971. (Taking the Bureau’s 12-month period from December 17, 1970 to December 17, 1971 — and this would eliminate Hade, Mancino and Margolies, who acquired their 759 shares before that time — there were 17 purchasers.) As already noted, only eight were New Jersey residents — or using the language of the statute, transactions pursuant to an offer were directed by the offeror to only eight persons in this State. And if one were to count the trustee to whom four of these eight transferred their shares, with the company issuing a single stock certificate to him, at best the number would be increased to nine.

With respect to the shares acquired by the other 12, it is to be noted that three (Hade, Mancino, Margolies) obtained theirs in connection with the formation of the company, and this in New York. The other nine also bought their share in New York, after the company had moved its offices there in February 1971. These, like others, approached the company in an apparent desire to invest in the promising field of computer technology. They were accommodated. The offers, the acceptances, and the completed sales all involved only New York and Maryland — never New Jersey. This takes the transactions out of the statute’s registration requirement: as such they are not to be counted in determining the right to exemption under N. J. S. A. 49:3-50(b) (9). The language there, relevant to the question of offer and acceptance, is (to repeat) whether the offeror directs his offer “to not more than 10 persons * * * in this State * * * whether or not the offeror or any of the offerees is then present in this State * *

In support of the Bureau’s action respondent’s brief urges that the legislative intent is indicated by N. J. S. A. 49:3-51, which deals with the scope of the Act and provides in pertinent part:

(a) Sections [N. J. S. A. 49:3-60, “Registration of Securities”] apply to- persons who sell or offer to sell when (1) an offer to sell is made in this State, or (2) an offer to buy is made or accepted in this State:
(c) For the purpose of this section, an offer to sell or to buy is made in this State, whether or not either party is then present in this State, when the offer (1) originates from this State (2) is directed by the offeror to this State and received at the place to which it is directed (or at any post office in this State in the case of a mailed offer) ;
(d) For the purpose of this section, an offer to buy or to sell is accepted in this State when acceptance (1) is communicated to the offeror in this State and (2) has not previously been communicated to the offeror, orally or in writing, outside this State; and acceptance is communicated to the offeror in this State, whether or not either party is then present in this State, when the offeree directs it to the offeror in this State reasonably believing the offeror to be in this State and it is received at the place to which it is directed (or at any post office in this State in the case of a mailed acceptance) ; * * * * * * *

It is argued that this demonstrates the Legislature’s concern “to subject to regulation as broad a spectrum of offers and sales of securities as possible in order to insure the investing public a full measure of protection.” One may readily subscribe to that proposition and yet conclude that there is nothing in N. J. S. A. 49:3-51 or elsewhere in the statute in conflict with our interpretation of the registration requirements: that they do not encompass offers, acceptances and the resultant sales made entirely outside of New Jersey, at least in the application of N. J. S. A. 49:3-50(b) (9) to the facts of this case.

The Bureau does not allege that the statutory language under consideration is vague or ambiguous. Unambiguous language is presumed to express the legislative purpose, Bass v. Allen Home Imp. Co., 8 N. J. 219, 226 (1951); see Lane v. Holderman, 23 N. J. 304, 313 (1957), and is not, except in the clearest case, to be given extraterritorial operation. Cf. United States v. Spelar, 338 U. S. 217, 222, 70 S. Ct. 10, 94 L. Ed. 3 (1949).

Only eight (at best, nine) of the offers were “in this State.” The Bureau would add all the transactions with the other purchasers of IRC stock, notwithstanding that no aspect of any of them occurred in, or had any effect in, New Jersey. By doing so it fell into error. The company had discharged its burden of proof by establishing all of the three elements necessary for exemption under N. J. S. A. 49:3— 50(b)(9). IRC was therefore not required to register its securities under the registration section, N. J. S. A. 49:3-60. The order of prohibition must therefore be reversed.

Although this concludes the matter, we consider it not inappropriate to comment briefly on the sanctions imposed by the Bureau. IRC contends that, assuming all the offers of its stock were offers beyond the ten-person ambit of N. J. S. A. 49 :3-50(b) (9), the sanctions constituted an abuse of the Bureau’s discretion and were punitive, inappropriate and contrary to the purposes of the Uniform Securities Law.

N. J. S. A. 49:3-67(a) authorizes the Bureau Chief to issue such orders as are reasonably necessary to carry out the provisions of the Act. What is reasonably necessary finds more explicit exposition in subsection 67(b): only such orders may issue as are “necessary and appropriate (1) in the public interest, or (2) for the protection of investors, or (3) consistent with the purposes fairly intended-by the policy and provisions of this act.”

Initially, we observe that there was no finding of fraud or willful violation of the statute, or that any of the investors were injured by the sale of IRC stock. In fact, there was no finding that the company would not have been entitled to an exemption from registration had timely application therefor been made. Prohibiting the company from procuring an exemption from registration or from availing itself of the lawful registration of its securities for a period of one year strikes us as unduly harsh. We need not, however, pass upon these aspects of the order of prohibition, for the sanctions expired by their own terms on May 15, 1973.

The third and final sanction imposed was, as heretofore stated, that IEC “cease and desist from directly or indirectly negotiating, offering for sale, or issuing any of its securities from or within the State of New Jersey.” This sanction, as worded, would appear to be without term — a permanent injunction. Bealizing, as we do, that ordinarily we are loath to substitute our judgment as a reviewing court for that of the Bureau Chief, Higgins v. N. J. Bureau of Securities, 100 N. J. Super. 266, 276 (App. Div. 1968), that sanction, if so construed, would clearly represent an abuse of discretion in light of the facts and circumstances attending the issuance and sale of the IEC shares to the several investors. Cf. Data Access Systems, Inc. v. State, 117 N. J. Super. 95, 99 (App. Div. 1971), rev'd in 63 N. J. 158 (1973), because the Bureau could not require state registration of federally registered securities.

However, respondent assures us that a permanent cease and desist order was not intended. After the one-year prohibition had run, says the State, IEC could avail itself of the statutory provisions for registration or exemption, and assuming it did so, would then be free to offer its securities for sale. The one-year period has run; the company now has the option of seeking registration or exemption.

One other matter: IEC contends that the proceedings in the Bureau violated its rights to due process, an impartial hearing and fundamental fairness. The basis for this claim is the concentration of power lodged in the Bureau Chief, who acted not only as investigator and preliminary finder of fact, but as hearing examiner and adjudicator of guilt. We need not advert to the company’s specification of instances where the hearer allegedly dealt unfairly with the presentation of its case.

Considering the whole of the record, the hearing was essentially a fair one. We have dealt above with the findings and conclusions reached. The real challenge here is to the procedure required by the statute. Federal courts as well as our own have held that the mere combination of functions in a single agency does not, without more, violate due process. For example, in Mackler v. Bd. of Education, Camden, 16 N. J. 362 (1964), the Supreme Court held that although a concentration of inquisitional, prosecutional and judicial power must be guarded against in. order to preserve impartiality of judgment, the mere fact that two board of education members had signed a formal complaint against defendant did not disqualify them from participating in the hearing, especially since no malice or ill will against defendant could be shown. See also, In re Blum, 109 N. J. Super. 125 (App. Div. 1970), holding that a merger of the functions of investigation, prosecution and judgment in the State Board of Medical Examiners would not violate due process. Cf. F. S. Donahue, Santo & Co. v. Kugler, 119 N. J. Super. 377 (App. Div. 1972), rev’d 61 N. J. 492 (1972).

The wisdom of creating an agency with a responsibility for both initiating and adjudicating a proceeding is a legislative function, and not a judicial one. In re Larsen, 17 N. J. Super. 564, 569-570 (App. Div. 1952), and see 575, Judge (now Mr. Justice) Brennan concurring. We perceive no prejudice that was visited upon IRC by reason of the concentration of powers in the Bureau Chief here complained of.

The order of prohibition is reversed.


text:
    RUTGERS COUNCIL OF THE AMERICAN ASSOCIATION OF UNIVERSITY PROFESSORS, PLAINTIFF-APPELLANT, v. THE NEW JERSEY BOARD OF HIGHER EDUCATION AND RALPH A. DUNGAN, AS CHANCELLOR OF HIGHER EDUCATION, AND INDIVIDUALLY, DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued November 7, 1973
    Decided November 27, 1973.

      Before Judges Carton, Seidman and Goldmann.

      Mr. Joel H. Sterns argued the cause for appellant (Messrs. Sterns and Greenberg, attorneys (Mr. Sterns and Mr. Michael J. Herbert, on the brief).

      Mr. Arthur Winkler, Deputy Attorney General argued the cause for respondents (Mr. George F. Kugler, Jr., Attortorney General of New Jersey, attorney; Mr. Stephen Skillman, First Assistant Attorney General, of counsel; Mr. Winkler, on the brief).
   Goldmann, J. A. D.,

Temporarily Assigned. Rutgers Council of the American. Association of University Professors (RC-AAUP) appeals from the whole of a resolution adopted by the Board of Higher Education (Board) on December 15, 1972, accepting the Student-Faculty Ratio Study Report prepared by the staff of the Department of Higher Education and adopting a 32-week budgetary calendar and other procedures to provide equitable funding for Rutgers University, the State University, as well as for the Newark College of Engineering and the State Colleges. These funding concepts were utilized by the Board in preparing and presenting a budget request for Rutgers to the Bureau of the Budget, Department of the Treasury, and then to the Governor and Legislature for the fiscal year 1973-1974.

RC-AAUP is the exclusively designated negotiating representative for Rutgers faculty members in their employment relations with the University. Respondent Board is an integral element of the Department of Higher Education (N. J. S. A. 18A:3-1) and responsible for the general supervision of higher education in New Jersey, as detailed in N. J. S. A. 18A :3-6 et seq. Respondent Chancellor of Higher Education Dungan is likewise a principal element of the Department (V. J. S. A. 18A:3-1) and its chief executive officer (N. J. S. A. 18A:3-21).

The validity of the resolution in question is challenged on three grounds: (1) in adopting the student-faculty ratio the Board violated the procedural requirements of the New Jersey Administrative Procedure Act (N. J. S. A. 52:14B-1 et seq.); (2) the Board’s unilateral adoption of the student-faculty ratio policy and 32-week budgetary calendar without prior consultation and negotiation with RC-AAUP as negotiating unit violated the New Jersey Employer-Employee Relations Act (N. J. S. A. 34:13A-1 et seq.), and (3) in adopting the student-faculty ratio policy the Board violated the autonomy of Rutgers.

I

The following factual background may be derived from the statements of facts submitted by the parties.

The State has annually appropriated money to Rutgers, even prior to its becoming the State University in 1956 when it was designated an instrumentality of the State for the purpose of providing public higher education. The funds so appropriated have generally been made available to Rutgers to allocate, within limited guidelines, according to its own priorities. The total sum appropriated each year was determined by resort to certain formulas or budgetary mechanisms. Rutgers would submit specific budget requests or recommendations to the Department for such items as instruction, research, auxiliary services and other programs. After review and revision the Department would submit the budget to the Governor through the Budget Bureau. He would then send his recommendations to the Legislature, which would ultimately determine what should he appropriated for Rutgers.

The largest component of state funds appropriated to Rutgers and other institutions of higher education has been for instruction and research, and the amount for these purposes was computed by resort to the mechanism of student-faculty ratios. Thus, the funding for Rutgers was on the basis of one faculty position for every 12.6 full-time equivalent students enrolled. Quite understandably, this ratio was nothing more than a budget-generating convention. It did not necessarily relate to the actual number of students in any particular classroom, since Rutgers could allocate teaching positions internally to accord with its own priorities. Moreover, it could generate additional faculty positions by using funds derived from private and federal sources — revenues reflected in its budget requests.

The 12.6-1 student-faculty ratio actually had no analytical justification, nor did those used in connection with the Newark College of Engineering or the State Colleges. The several ratios were not grounded in rationale or in programmatic objectives. As the State’s interest and efforts in providing higher education for more and more students increased, and the cost of doing so mounted, officials on both the executive and legislative levels of State Government questioned the validity of the ratios that had been used. The result was that the Legislature, on the recommendation of the Governor, appropriated $20,000 in the 1971-1972 budget for the Department to study the existing ratios in order to determine if changes were necessary. The intention was that the study be completed and considered for incorporation into the fiscal 1972-73 budget. The Director of the Budget Bureau set up certain guidelines to be followed. We are informed that the Department then established a committee made up of representatives of all public institutions of higher education, appointed by the respective institutions. Rutgers had six on the committee, one a faculty member.

As the study progressed ad hoc committees were established, made up of members of the general committee and additional individuals designated by the institutions. Rutgers had representatives on all these committees. In addition, members of the Department’s study team met with Rutgers administrative and faculty personnel some eight times to discuss issues related to the project. The comments, suggestions and critiques received from these sources resulted in changes in the proposed student-faculty ratios for Rutgers and the other institutions of higher education.

The study was not quite completed when Rutgers, in mid-September 1972, regularly submitted to the Department its budget request for the 1973-74 fiscal year. In a statement accompanying the request Rutgers acknowledged that the Department and the University had for more than a year been engaged in a study of appropriate ratios for funding faculty for instruction, research, curriculum development, public service and academic administration. However, no final agreement had been reached. Rutgers nevertheless agreed “to abide by a jointly determined allocation formula, but must insist on the understanding that Rutgers retains flexibility to assign faculty resources in accordance with institutional goals within reasonable limits of divergence from categories and units actually generating the faculty resources.” Rutgers therefore did not consider the allocations in the detailed budget as final; rather, they were subject to change when a final determination was reached. It made clear that it could not accept a budget based on a student-faculty ratio formula alone. While Rutgers recognized that a formula budget based on cost per student had validity for elements of the budget impacted by students, that procedure would adversely affect areas of the budget not tied directly to students, e. g., expenditures for separately budgeted research, library functions serving industrial research and rendering public service to the community beyond the University.

After some 15 months of intensive study and discussion the Department in November 1972 submitted to the Board a staff report: “Final Report and Staff Recommendations and Student/Faculty Ratios for Rutgers University, NCE [Newark College of Engineering] and the New Jersey State Colleges.” There followed the Board resolution of December 15, 1972, adopting the recommendations for new budgetary procedures set out in the study report.

The introduction to the report notes that the study was an essential part of the new budgeting approach initiated in 1971 for New Jersey’s public colleges. It would replace the older “line-item” budgets and their multiplicity of controls over specific budgetary items, with new budgeting techniques. The new approach, “based on modern techniques of planned program budgeting, seeks to • group costs around general ‘program’ centers, ascertain the costs of those programs, effectively relate them to performance objectives, and ultimately determine the effectiveness with which those objectives have been met.” The student-faculty ratio study, said the report, was the first major step to deal effectively with the complexities attending determination of per student cost. Several reasons made the ratio a crucial ingredient: (1) faculty salaries, the largest item in a college budget, was the most important element in determining cost per student; (2) variations in the educational costs of different categories of students are. largely caused by differences in their faculty resource requirements, and (3) since the faculty are at the core of most aspects of college and university life, a study of their activities is central to an understanding of higher education budgeting.

The report describes the student-faculty ratio as follows:

Quite simply the student-faculty ratio is the number of students per faculty member, for any given category of students. The student-faculty ratio is a budgetary device used in connection with enrollment projections to generate faculty lines for a school. The formula generated faculty lines multiplied by the average salary for a faculty member yields the dollar amount required for academic lines in The Instruction and Departmental Research (IDR) budget of the school. The IDR budget together with the 12 other budget categories, including organized research, extension and public service, auxiliary services, physical plant, student services, etc., comprise the total institutional budget.

The single, most important difference between the new system and the old, the report went on to explain, is that the old unitary ratio (e. g., for Eutgers, one faculty member for every 12.6 students) had been divided into a number of differentiating components: by student levels, by subject matter areas, and by faculty functions.

Pursuant to its statutory duties to receive, coordinate, balance and present an annual budget request for the University, N. J. S. A. 18A:3-14(f), the Board reviewed Rutgers’ budget proposal and presented a budget request for the University, through the Bureau of the Budget, to the Governor and the Legislature. This request incorporated the new budgetary mechanisms contained in the study report. It was accompanied by Rutgers’ original budget request of September 15, 1972. Thereafter, in accordance with the statutory procedures set out in N. J. S. A. 52:27B — 10 et seq. and N. J. S. A. 52 :ll-32 to 35, the budget requests for Rutgers were considered by the Budget Bureau, the Governor and the Legislature, culminating in the Appropriations Act for the fiscal year 1973-74.

Rutgers had requested $76,475,649. The Department reduced his figure to $72,936,000 and transmitted the revised budget to the Budget Bureau in December 1972. After review by the Bureau the Governor requested $72,053,310 of the Legislature.

II

Appellant RC-AAUP first argues that the Board, in adopting the December 15, 1972 resolution, violated the procedural requirements of the New Jersey Administrative Procedure Act, N. J. S. A. 52 :14B-1 et seq., which contains safeguards for parties who might be affected adversely by “administrative rules and regulations” adopted by “State agencies,” N. J. S. A. 52:14B-4. This section of the Act requires that prior to the adoption of a rule the agency shall (1) give at least 20 days’ notice of its intended action, setting out the terms and substance thereof and the time when, the place where and the manner in which interested persons may present their views — the notice to be published in the New Jersey Register, and (2) afford interested parties reasonable opportunity to submit data, views or arguments, orally or in writing, and fully consider all submissions. Admittedly, none of this was done when the resolution was adopted. Appellant points out that N. J. S. A. 52:14B-2(a) makes it clear that respondent Board is a state agency that must comply with the Administrative Procedure Act. Subsection 2(a) provides that state agency” shall include each of the principal departments in the executive branch of the State Government, and all boards * * * within any such departments * * * authorized by statute to make, adopt or promulgate rules or adjudicate contested cases.” (The excepting clause of this definition is clearly inapplicable to respondents.)

The Department of Higher Education is a principal department, N. J. S. A. 18A:3-1, and respondent Chancellor is its chief executive officer and a member of the Governor’s cabinet. The Board of Higher Education is an element within the Department structure; it has the power to make, alter, repeal and enforce rules for carrying out the statute. Accordingly, it is subject to the Act.

The core issue here is obviously whether the Board was engaged in rule-making when it adopted the resolution under attack. Respondents contend that what the Board did cannot be construed as rule-making within the definition contained in N. J. S. A. 52:14B-2(e) :

“Administrative rule” or “rule,” when not otherwise modified, means each agency statement of general applicability and continuing effect that implements or interprets laws or 'policy, or describes the organization, procedure or práctice requirements of any agency. The term includes the amendment or repeal of any rule, but does not include: (1) statements concerning the internal management or discipline of any agency; (2) intra-agency and inter-agency statements; and (3). agency decisions and findings in contested cases.

They also maintain that budget requests submitted to the Legislature, including those from various agencies of State Government as well as the Governor’s proposed budget, are, whatever their form, only recommendations. No one is directly affected by any such recommendation: its effect depends upon the Legislature’s concurring therein. The legislative process accords anyone opposing the recommendation full opportunity to address his objections to the Legislature. N. J. S. A. 52:11 — 33 et seq.; N. J. S. A. 52:13C—18 et seq.; N. J. Const. (1947), Art. IV, § IV, par. 6. And if the Legislature nevertheless accepts the recommendation, judicial review is available. Respondents therefore contend that it is the action of the Legislature, and not that of the recommending agency, which is properly the subject of judicial challenge. In short, respondents argue that the budget recommendation submitted by an administrative agency to the Legislature may not be collaterally attacked in the courts, as RC-AAUP seeks to do here in challenging the student-faculty ratio funding formula.

It is generally recognized that, within their allotted sphere, rules and regulations of a state administrative agency, duly promulgated under properly delegated powers, have the force and effect of law. State v. Atlantic City Electric Co., 23 N. J. 259, 270 (1957). It may reasonably be inferred from this principle that rules have a binding effect on all persons subject to them. They must be obeyed. Accordingly, analysis of the Board’s resolution in light of the first sentence of N. J. S. A. 52:14B-2(e), quoted above, is appropriate in order to determine whether it bound Rutgers in any continuing, effective and fundamental way.

The Rutgers Board of Governors is responsible in the first instance for the preparation of the University budget. Once formulated it is forwarded to the Board of Higher Education which, as earlier stated, has the duty of coordinating and balancing all requests from the State’s institutions of higher learning, and then submitting a combined request for appropriations to the Governor. N. J. S. A. 18A:3-14(f). The responsibility of the Board to make a budget request for Rutgers to the Governor and the Legislature is specifically stated in N. J. S. A. 18A:65-25(b). The Board’s adoption of the student-faculty funding ratio was consonant with its recommending or requesting authority under these two statutes.

The formula was not self-executing. It had no independent operative effect merely because the Board, in its considered judgment, decided to. adopt it. Like all budget requests from spending agencies, the budget proposal for Rutgers (and also the Newark School of Engineering and the State Colleges), as well as the budget conventions used to formulate the budget, had to be reviewed, investigated and, if deemed necessary, amended by the .Bureau of the Budget, the fiscal advisor to the Governor. (It should be noted here that the Bureau had before it the budget requests and recommendations of Rutgers along with those forwarded by the Board of Higher Education. It is our understanding that the Legislature did, too.) When the Budget Bureau completed its work, the Rutgers budget had to be concurred in by the Governor and, ultimately, the Legislature. That body had the discretion and authority to accept, reject or modify the budget proposal presented bjr the Board or the University. In fact, it had the power to formulate a budget of its own. What the Legislature did was not to reject or change the funding techniques’ recommended by the Board and concurred in by the Governor, but to adopt and implement them through the Appropriation Act for fiscal 1973-1974.

Realistically, then, appellant’s dispute is with the Legislature in implementing the new funding policy, and not with the Board which embodied it as a recommended procedure in forwarding Rutgers’ budget request after subjecting it to review. But looking at the Board resolution itself, as though no further action by Budget Bureau, Governor or Legislature were involved, we do not consider the resolution as an exercise in rule-making. Rnle-making, as respondents point out, resembles in many respects the enactment of statutes, and characteristically involves the adoption of rules establishing a pattern to be followed thereafter in a certain group of matters and governing the rights, duties and obligations of large numbers of individuals. See, e. g., Boller Beverages, Inc. v. Davis, 38 N. J. 138, 151—152 (1962).

What the Board was doing by its resolution was to adopt a budget generating device. It established certain student-faculty ratios and a 32-week academic year, and this represented its considered judgment in recommending the extent to which the State should fund higher education, including Rutgers’ needs. In this connection it should not be overlooked that once the Appropriation Act was passed, Rutgers was not inexorably bound by the ratio. The Board’s adoption of the ratio study report meant only that Rutgers would, in the end, presumably be allotted funds by the Legislature in accordance with the student-faculty funding ratios. The resolution did not control Rutgers’ application of total available funds, including moneys received from other sources. It is to be remembered that, as noted earlier in this opinion, when Rutgers forwarded its 1973-74 budget request it insisted on its right to make reasonable deviations from the funding lines embodied in the ratios, in order to meet institutional goals. Those goals are, of course, the internal affair of the University.

We accordingly hold that the resolution is not a rule within the contemplation of the Administrative Procedure 4ct.

Ill

We find equally unconvincing RC-AAUP’s argument that the Board’s unilateral adoption of the student-faculty ratio policy and 32-week budgetary calendar violated the Employer-Employee Relations Act, N. J. S. A. 34:13A-1 et seq.

Appellant had served as principal spokesman for the Rutgers faculty before that law was enacted. The statute simply gave this traditionally observed relationship a formalized legal basis. Pursuant to that law RC-AAUP and the administration at Rutgers entered into collective negotiating agreements, including one executed on December 1, 1970 and modified on April 29, 1971. By mutual oral agreement of the parties its terms were still in effect when this appeal was brought.

Section 7 of the Employer-Employee Relations Act (N. J. S. A. 34:13A — 5.3) provides that a majority representative of public employees in an appropriate unit may act for all employees in the unit. Further, that the majority representative and designated representatives of the public employer shall meet at reasonable times and negotiate in good faith with respect to grievances and the terms and conditions of employment. When an agreement is reached, these terms and conditions are to be embodied in a signed writing. The Legislature never defined what it meant by “terms and conditions,” nor did it specify what subjects were negotiable and what subjects were outside the sphere of negotiation. Section 10 (N. J. S. A. 34:13A — 8.1) expressly provided that no provision in the Act shall “annul or modify any statute or statutes of this State.” As a reviewing court, we must give continuing effect to the provisions of the law relating to the Department of Higher Education, N. J. S. A. 18A:3-1 et seq., without frustrating the goals or terms of the Employer-Employee Relations Act. Appellant claims that the Board of Higher Education should have negotiated the student-faculty ratio funding formula with RC-AAUP before adopting it, and this for the reason that the formula imposed certain workloads, class sizes, class hours, ei cetera, on the Rutgers faculty. Hot so.

We have heretofore observed that the Board is vested with a duty to make a budget recommendation for Rutgers, pursuant to N. J. S. A. 18A:3-14(f) and 18A:65-25(b). We find nothing to indicate that the Legislature, when it adopted the general terms of the Employer-Employee Relations Act, contemplated that the Board of Higher Education would or could abdicate this administrative responsibility or, indeed, abdicate its management responsibilities with respect to state higher education policies.

The Board’s right to make a budget recommendation for Rutgers was intended by the Legislature to be exercised freely, and in a manner that would enable it to receive an independent and analytical assessment of the budgetary needs of the University. As respondents point out, if the Employer-Employee Relations Act were construed to compel collective negotiations on the budget recommendations given to the Legislature by the Board, this obvious legislative intent would he frustrated, for the recommendations it made each year would reflect compromise and not the Board’s independent judgment. -Vs we have remarked earlier in this opinion, any member of a public or private interest group may examine any budget recommendation made by the Board and, if so minded, submit his views and appropriate data with regard thereto to the executive and legislative branches of government. This, and not collective negotiation,, is the proper avenue for interested parties to follow.

The fact is that the Legislature did not impose any additional controls over collective negotiations between Rutgers and the faculty when it adopted the new funding formula recommended by the Board. It simply appropriated money for the use of the University in the same fashion as it had since 1956 when the State University was created. Rutgers received funds which it could' allocate internally in accordance with its own priorities, institutional goals and privately generated faculty positions Within this framework RC-AAUP, as the exclusive negotiating agent for the faculty, was free to negotiate all terms and conditions with the University, even as it had in prior years.

Finally, and to emphasize what has been said before, the budgetary policies and devices adopted by the Board in its December 15, 1972 resolution represented a proper exercise of its statutory responsibility to prepare and present an annual budget for Rutgers to the Governor and Legislature. Those policies and devices were without force or effect until the Legislature concurred in them and promulgated a budget for the University based upon them.

With regard to the 32-week budgetary calendar, we observe, as did our Supreme Court in Burlington County College Faculty Ass’n v. Board of Trustees, Burlington County College, 64 N. J. 10, decided November 20, 1973, and reversing 119 N. J. Super. 276 (Law Div. 1972), that while the calendar undoubtedly fixes when the University is open with courses available to students, it does not in itself fix the days and hours of work by individual faculty members, or their workloads or their compensation. These matters are mandatorily negotiable under the Act, although the negotiations are to be conducted in the light of the calendar. Although the calendar undoubtedly has some practical effect on employment arrangements, it was not a subject for mandatory negotiation.

We therefore conclude that the Board resolution was not a final administrative action subject to the Employer-Employee Relations Act.

IV

The third point advanced by RC-AAUP is that the Board resolution violated Rutgers’ autonomy. We see no merit in the argument. In the first place, this matter is the concern of the University, acting through its Board of Governors, and not appellant’s. Secondly, whatever the precise nature and amount of independence, autonomy or self-government vested in the University by law (N. J. S. A. 18A :65-27) — see, in this connection, Rutgers v. Piluso, 60 N. J. 142 (1972); Rutgers v. Kugler, 110 N. J. Super. 424 (Law Div. 1970), aff’d 58 N. J. 113 (1971); Trustees of Rutgers College in N. J. v. Richman, 41 N. J. Super. 259 (Ch. Div. 1956) — what the Board did was simply to perform its statutory duty to advise and recommend to the Legislature the extent of state aid it believed appropriate and necessary for the University. It was the Legislature which adopted the new funding formula in appropriating funds for Eutgers for its instruction and departmental research use.

Appeal dismissed.


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

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. JAMES JOSEPH JENNINGS, JR., DEFENDANT-APPELLANT.
    Superior Court of New Jersey-Appellate Division
    Argued February 22, 1972
    Decided March 30, 1972.

      Before Judges Conford, Matthews and Fritz.

      Mrs. Miriam, N. Span, Assistant Deputy Public Defender, argued the cause for appellant (Mr. Stanley C. Van Ness, Public Defender, attorney).

      Mr. Elson P. Kendall, Assistant Prosecutor, argued the cause for respondent (Mr. Karl Asch, Union County Prosecutor, attorney).
   The opinion of the Court was delivered by

Conford, P. J. A. D.,

Defendant was indicted for the murder of one Farrell and was convicted by a jury of manslaughter. Of several points of appeal argued we find one to have merit — that the court over objection excused a defense witness from testifying on a purported claim of privilege of self-incrimination advanced by counsel for the witness without requiring the witness himself to take the stand and refuse under oath (or affirmation) to claim the privilege for stated reasons.

Defendant accosted Farrell on the street while Farrell, with a knife in his hand, was apparently menacing another person sitting in a parked ear. The shooting followed momentarily thereafter. Defendant had arrived at the scene in a car with one Figone (the witness mentioned above), had addressed Farrell with a demand for money the latter assertedly owed him, and then, according to defendant’s testimony, when Farrell raised the knife toward him, defendant’s gun went off, resulting in the fatal wounding of Farrell. The State, however, adduced testimony from which the jury could have concluded that the shooting was not a justified act of self-defense.

Figone had been called as a witness before the grand jury and, after being informed by the prosecutor that he had a privilege of not incriminating himself, testified he knew nothing about the shooting until defendant told him about it later that day. lie had loaned defendant his car but was not with him at the time.

Defendant contends that a week or so before the trial, when. the prosecutor learned from the defense that Figone was to testify for defendant, he had him indicted for the murder, obstructing justice, aiding defendant to escape apprehension and perjury. Figone was confined in jail on these charges when called as a witness.

In the course of its case the defense called Figone as a witness. The court promptly excused the jury. The judge then inquired of the witness whether he had counsel, and the latter responded he had consulted with counsel (Mr. Metro) who had advised him to “testify to the truth.” When the court pressed the witness as to whether counsel advised him to testify, the witness said:

I think it’s right that I should testify, not that he advised me. I think it’s right that I should tell the truth.

The judge expressed the view that in view of the “very serious charge” against Figone, Mr. Metro should be given the opportunity of telling the court “his position * * * in this case.” Defense counsel advised the court she had informed Mr. Metro the day before that she was calling Figone as a witness and he had said he had no objection. A recess was called during which the judge phoned Mr. Metro and ascertained the latter desired to be present during any testimony he might advise the witness to give. The case was recessed (on a Eriday) to permit Mr. Metro to be present the following Monday morning.

On the resumption of the trial on Monday the defense called Eigone again, and the court again excused the jury. On inquiry by the court, Mr. Metro stated he was advising the witness not to testify on grounds of self-incrimination. Eigone answered “yes” to the court’s question whether he understood that counsel was advising him not to answer any questions which might incriminate him. But the witness was not asked whether he would himself invoke the privilege not to incriminate himself. The prosecutor suggested there be a voir dire, interrogation of the witness out of the presence of the jury, and the court acceded, in order to “see if the questions are permissible.” No one, including Mr. Metro, objected to the procedure.

Defense counsel proceeded at once to question Eigone as to his knowledge concerning the shooting. At the first question, Mr. Metro stated he was advising his client not to answer. The court directed the witness to answer the questions. Thereupon the witness, over periodic continuing objections by Mr. Metro, testified he was present at the shooting and saw defendant shoot Earrell after the latter turned to cut defendant with his knife. He said he came there with Earrell, the latter driving Eigone’s car, but not expecting any shooting, and he left the scene with defendant immediately afterwards. When, on cross-examination, Figone was asked whether, later that day, he went to get “CO-3 guns” in Newark, and Mr. Metro objected again, the witness responded, “I don’t want to answer that question.” The court remarked, “I can’t compel him to answer that one.” The witness continued to Tefuse to answer questions about the guns but answered all others.

After the testimony on “voir dire" the judge ruled he would “respect Mr. Metro’s objections” and refuse to “compel” the witness to testify as such testimony would tend to incriminate the witness because the conflict between his grand jury testimony and the voir dire testimony, if repeated before the jury, would expose him to a charge of false swearing. (Later in the case the judge indicated that his action had been based also on Eigone’s potential implication of himself as a principal in the homicide.)

Defense counsel thereupon requested that “Mr. Eigone [be] called to the stand in front of the jury and plead the Fifth Amendment in front of the jury * * She argued:

Tour Honor, lie can’t refuse to take the stand. He can refuse to testify. I would like him called to the stand, and then let him plead the Fifth Amendment, because only the defendant has a right not to take the stand in the first place. [Emphasis added]

The court responded it would not “permit” Eigone to testify as he “would clearly incriminate himself.”

When, after further argument on other matters, counsel renewed her request that Figone be called to the stand to see whether he might decide to testify or “formally waive” his right not to, the court responded, “I see no reason for it. It’s time consuming * * * Mr. Metro has announced to this court that Mr. Figone will not testify. Am I correct, Mr. Metro ?” Mr. Metro said: “Yes, your Honor.” (Emphasis added). But it is clear that Mr. Metro had made no such announcement.

I

It is and long has been fundamental that the privilege against self-incrimination is personal to the individual claimant, and the election to invoke it must be exercised by the witness himself, on the stand and under oath, after hearing a question or questions addressed to him. It is not invocable by an attorney as his surrogate. State v. Williams, 59 N. J. 493, 502 (1971); In re Boiardo, 34 N. J. 599, 604 (1961); State v. Fary, 19 N. J. 431, 435 (1955); State v. Mohr, 99 N. J. L. 124, 129-130 (E. & A. 1924); In re O’Shea, 166 F. 180, 182 (D. N. J. 1908); United States v. Willis, 145 F. Supp. 365 (M, D. Ga. 1955); United States v. Johnson, 76 F. Supp. 538, 540 (M. D. Pa. 1947); Bouschor v. United States, 316 F. 2d 451, 458 (8 Cir. 1963); State v. Kiser, 98 N. E. 2d 322 (Ohio Ct. App. 1950); State v. Brown, 221 La. 394, 59 So. 2d 431 (La. Sup. Ct. 1952).

The barrier to self-incrimination of a witness is up “only when the witness himself chooses to put it up.” State v. Fary, supra (19 N. J. at 435). Moreover, even “the witness may not claim the privilege until the question is put * * * and if he answers the question without claiming the privilege he irrevocably waives it.” Ilid.

There are important reasons why a claim of the privilege is thus closely circumscribed. The first is that it is at war with the great objective of the trial — the ascertainment of the truth as to the issues contested. State v. DeCola, 33 N. J. 335, 344 (1960) ; In re Pillo, 11 N. J. S, 19 (1952) ; and see, State v. Briley, 53 N. J. 498, 506 (1969). Secondly, as noted in In re Boiardo, supra, “* * * it is the witness, and not counsel, who must so state [the area in which he claims an answer to a question will incriminate him], and must do so under oath, for it is the penalty of perjury which is the sole assurance against a spurious assertion of a claimed apprehension”. 34 N. J. at 604; (Emphasis added).

So strongly was the concept of the personal nature of the privilege once held in this State that Chief Justice Gummere expressed the view, in State v. Mohr, supra (99 N. J. L. at 129-130), “that the witness has no right to be attended byr his personal counsel (who has no place in the trial of the cause) and receive from him advice as to whether or not he shall answer a given question.” A softer view in that particular regard was later expressed by Chief Justice Weintraub in State v. Decola, supra (33 N. J. at 355-356), who said:

*• =!■ * jf circumstances reasonably allow, counsel should be permitted both to advise the witness and to assist the court in passing upon a claim of privilege.

See also, State v. Williams, supra, 59 N. J. at 503.

But the foregoing in nowise qualifies the admonitions in Boiardo and Fary, both supra, that only the witness personally may claim the privilege and then only when faced, under oath, with a specific question.

The principles outlined above reveal the error of the trial court’s course in this case. While the court cannot be faulted for calling in Figone’s counsel to assure itself the witness would not be sacrificing his rights thorugh ignorance, the conduct of a voir dire to determine whether the witness’s testimony before the jury would be self-incriminating was plainly both premature and self-defeating. First, the witness had not himself yet claimed the privilege; second, drawing incriminatory responses from him was just as damaging to him on voir dire as if before the jury. Even if the witness were claiming his privilege (as here he was not; see infra) the court would have properly been called upon to rule thereon without requiring the witness to reveal the totality of the incriminatory story but only “enough to indicate a basis for fear [of incrimination] while withholding facts which would prove it.” State v. DeCola, supra (33 N. J. at 350); In re Pillio, supra (11 N. J. at 19—20). There was, moreover, the danger to the witness in the course taken oí leading him into a waiver of the privilege through his detailing of any of the pertinent facts. State v. Fairy, supra.

But what is determinative of this appeal is that the witness never was required by the court personally to claim the privilege purportedly sought for him by his counsel. As noted, on the voir dire he answered all questions concerning the homicide itself without apparent hesitancy or protest despite objections by his counsel; he never once uttered a hint of claim of privilege during the extended colloquy between the court and all three counsel; and, most important, the court denied defendant’s repeated requests that the witness be put on the stand before the jury and required personally either to answer questions or to claim and show the basis for an assertion of his privilege.

The trial court was not justified, when defendant’s vital interests in adduction of Eigone’s favorable testimony were at stake, in inferring a claim of privilege by the witness personally from his counsel’s several statements that he was advising the witness not to testify or even from counsel’s accordant answer to the court’s interrogatory assertion of its understanding that the witness would not testify. Not only is such an inference not a permissible substitute under the eases for testing the witness’ personal intentions on the stand under oath (or affirmation), but there was substantial doubt about it here in the light of the witness’s strong expression when first called of a desire to testify to “the truth” independently of counsel’s advice and the readiness with which he told his whole version of the shooting (on voir clire), discriminatingly withholding only information as to the asserted later acquisition of guns. These considerations gain added emphasis in this particular case where defendant was on trial for his life.

We note, in passing, that the court erred in its view that the witness would be incriminating himself as to false swearing or perjury by the conflict between his grand jury testimony and that which he gave on the voir dire. State v. DeCola, supra (33 N. J. at 351-352); State v. Williams, supra.

For the reasons stated there must be a reversal and a new trial at which, if defendant calls Figone as a witness, the latter shall be required to take the stand before the jury under oath (or affirmation), await specific questions, and either answer them or personally assert and demonstrate a basis for not doing so grounded in a claim of self-incrimination.

II

Defendant asserts the prosecution violated his right to due process by indicting Figone when it appeared the latter intended to testify for the defense, while giving immunity to another witness who promised to and did testify for the State. He relies upon Pyle v. Kansas, 317 U. S. 213, 63 S. Ct. 177, 87 L. Ed. 214 (1942), which held a prima facie right to a hearing in federal habeas corpus was established by a verified petition that the Kansas authorities obtained petitioner’s criminal conviction by deliberately suppressing testimony favorable to him and knowingly adducing against him perjured testimony.

We cannot find what is adduced here to resemble the showing by the petitioner in Pyle. There is not the slightest basis to doubt that the prosecutor here believed in good faith that he had a valid murder case against defendant and that the testimony of his witnesses against defendant was the truth. While the circumstances attending the pressures mounted against Figone may raise some suspicion of high-handedness, what is demonstrated is far from a showing amounting to denial of due process to defendant.

III

Plain error is argued in relation to the prosecutor’s comments in summation concerning the course of the bullet through the decedent’s head and the inferences drawn therefrom as to the respective positions of the defendant and the victim. We conclude the remarks in question were permissible inferences from the autopsy report admitted in evidence. In any event, there is no such manifest injustice as would amount to plain error.

IV

Defendant argues that the activation by the trial court of the multiple offender statute against him consequent upon the jury’s verdict was a denial of equal protection of the laws for the reason that the statute is rarely invoked in Union County. H.e specifically complains of the court’s quashing a subpoena issued by defendant to the prosecutor seeking records as to the number of multiple offenders actually sentenced as such in the county in the past 20 years.

We find no error in the quashing of the subpoena. Defendant cites no authority to support his contention although it is common knowledge that use of the multiple offender statute is selective and not uniform. But the statute does not create a new substantive crime; it is merely a vehicle for imposing a greater penalty for the particular crime “where such defendant has persistently engaged in unlawful activities.” State v. Washington, 47 N. J. 244, 248-249 (1966). In that sense, use of the statute by the court is merely a phase of the permissible exercise of discretionary judgment as to what is appropriate punishment for a particular offender within available legal limits. The statute authorizes the court to require the filing of a multiple-offender accusation when the court thinks the current offense is such as to -warrant imposition of a greater penalty than the maximum allowable by law for that offense. N. J. S. A. 2A:85-13. We find no arbitrary exercise of discretion in that regard below, nor do we- see any possibility that permitting the discovery sought by defendant would have promoted any proper purpose relevant to the issue of appropriate punishment of this defendant. However, in view of our conclusion in I, above, the judgment and sentence must be set aside in toto.

Eeversed and remanded for a new trial.

      We do not decide whether there was waiver here, as defendant has not raised the point. A factor against waiver may be thought to inhere in the nature of the court’s direct interrogation of the witness at the beginning of the voir dire, possibly justifying an inference that the witness deemed himself ordered to testify.