author: Per Curiam.

text:
    IN THE MATTER OF THE CHALLENGE OF DISQUALIFICATION FILED BY MISS LILLIAN CLAWANS AGAINST HONORABLE ALEXANDER P. WAUGH, JUDGE.
    Essex County District Court
    Decided December 7, 1950.

      Before Judges John J. Francis, Joseph G. Lyons and Walter H. Conklin, sitting as triers pursuant to statute.

      Mr. George R. Sommer, for Miss Lillian Clawans.

      Mr. Everett M. Scherer, amicus curiœ.

   Per Curiam.

Miss Lillian Clawans, a member of the Bar of this State, filed an affidavit on the basis of which she seeks disqualification of Judge Alexander P. Waugh, Presiding' Judge of the Essex County District Court. Following this action, by virtue of R. S. 2:26-194, Judge Waugh appointed' the members of this special tribunal as triers of the challenge. We then appointed an amicus curice to appear in the proceeding, who, upon notice, moved to dismiss the challenge as being insufficient in fact and in law under the statute. At the conclusion of the argument counsel for the challenge indicated his agreement that the matters contained in the affidavit did not present a cause for recusation within the statute. Because of the general interest which has been exhibited in the action we have concluded to file this memorandum expressing our views on the subject.

The statute of New Jersey dealing with the disqualification of a judge sets forth four grounds which accomplish that result.- They are:

1. Relation in the third degree to any of the parties to the action;

2. Where the judge has been attorney of record or counsel for a party to such action;

3. Where he has given his opinion upon a matter in question in such action; and

4. Where he is interested in the event of such action. (R. S. 2:26 — 193.)

The first and last of these causes are taken from the common law. The blood relationship exclusion is plain and needs no explanation. The “interest” referred to means a pecuniary interest and that alone.

In In re Hague, 103 N. J. Eq. 505 (Ch. 1928, Chancellor Walker), the opinion quotes with approval the following statement in County Commissioners of Charles Co. v. Wilmer, 131 Md. 175; 101 A. 686 (Ct. of App. 1917):

“ ‘The contention made by the appellant is that the disqualification is caused by a sentimental as well as by a pecuniary interest’ * * *. ‘The constitutions or statutes of most, if not all, of the different states, contain a general provision to the effect that a judge shall not act as such in a cause in which he is interested; but the overwhelming weight of authority in construing the meaning that is to be attached to the provision is, that to bring about a disqualification, the interest must be a pecuniary or a personal right or privilege in sonie way dependent upon the result of the case as contradistinguished from every bias, partiality or prejudice which the judge may entertain with reference to the case.’ ”

The affidavit filed here does not seek the disqualification of Judge Waugh in a particular case. It seeks his general disqualification as a judge in all future cases in which Miss Lillian Clawans appears as attorney for a party, and the basic ground urged is that he is so biased and prejudiced against her that no client represented by her would receive a fair trial.

In support of the demand for recusation four specific cases are referred to which resulted adversely to Miss Clawans’ clients after trial before him. In these cases she claims her clients should have been successful. She further refers to a. question put to her by him during one of the trials as to whether or not she had read Buie 3 :80 which, upon reading, she found dealt with contempt proceedings.

It is plain from this general outline of the affidavit that the challenge is not within the purview of the statute (R. S. 2:26-193, 194).

Even assuming that a judge has an antipathy toward a particular attorney, as was said in 536 Broad Street v. Valco Mortgage Co., 135 N. J. Eq. 581 (Ch. 1944); affirmed on opinion below, 136 N. J. Eq. 513 (E. & A. 1945):

“It has been repeatedly stated that prejudice growing out of business, political or social relations is not sufficient to disqualify a judge.”

(Also In re Hague, supra, State v. Weinberger, 38 F. 2d 298 (D.C.N.J. 1930)).

Eundamentally the reason for the establishment of this doctrine is that a judge is conscience-bound-under his oath of office to do impartial justice between parlies to litigation before him. Therefore, “Not only is a judge not required to withdraw from the hearing of a case upon the mere suggestion that he is disqualified to sit, but it is improper for him to do so unless the alleged cause of recusation is known by him to exist or is shown by proof to be true in fact.” State v. De Maio, 71 N. J. L. 220 (E. & A. 1904).

In In re Hague, supra, Chancellor Walker referred with approval to McEwen v. Occidental Life Ins. Co., 172 Cal. 6 (Sup. Ct. 1916), holding that “erroneous rulings against a litigant, even when numerous and continuous, form no ground for a charge of bias or prejudice, especially when they are subject to review.”

The fact that a judge has expressed irritation with an attorney during a trial, or has indicated a dislike for him or his manner of conducting trials, or has said that the attorney should be held in contempt would not justify a challenge to his capacity to sit in judgment on the attorney’s cases nor would such fact justify a judge in disqualifying himself from the performance of his sworn duty to administer justice in the actions within the jurisdiction of his court.

There are very few cases in our own State dealing with this subject. Reference to some in other jurisdictions illustrative of the principle just set forth may be helpful.

In Hutchinson v. Manchester Street Railway Co., 60 A. 1011 (Sup. Ct. N. H. 1905), a challenge was interposed for alleged prejudice against the defendant’s attorney. It was alleged that following the trial of another cause the judge informed the attorney that if he intended to try other cases along the lines adopted in the one just completed he must expect no concessions from the court. So it was asserted that “defendant is led to fear and believe that it will not be able to have a judicial trial at this time.”

The court overruled the challenge because: (1) it merely expressed the opinion of the party that he could not get a fair trial before the challenged judge; (2) the statement attributed to the judge is not indicative of prejudice or hostility toward the defendant, and (3) “at most the remark relates to relations between the judge and counsel, which is no cause for challenge even of a juror.”

Speaking of the common law doctrine of disqualification, the court said:

“At common law, interest in the cause was the only ground which disqualified the judge. * * * For the law will not suppose a possibility of bias or favor in a judge who is already sworn to administer impartial justice, and whose authority greatly depends upon that presumption and idea.”

In. Ex parte N. K. Fairbank Co., 194 F. 978 (D. C. Ala. N. D. 1912), the defendant company by its attorneys complained to the circuit court of the delay of the district court judge in bringing on the action for trial. The circuit judge referred the complaint to the district judge who replied, explaining the delay and pointing out that the attorneys who made the complaint were not the local attorneys of the company. He wrote further that if they had taken the trouble to ascertain the facts they would have discovered the true reasons for the delay and therefore he did not care to advise with them.

Affidavits of disqualification were then filed alleging, among other things, prejudice against the litigant and prejudice against its counsel.

The challenge was rejected, the court saying:

“The letter * * * does not show any personal prejudice against the attorney who wrote that application, and prejudice of a judge against a counsel of a party, when it exists, does not disqualify a judge from presiding in a case in which the lawyer is engaged or prove prejudice against his client; otherwise, every time a judge reproved or deprecated the conduct of an attorney in the trial of a case, no matter how justly, even as to matter preparatory to bringing it to trial, another judge would have to be called in.”

All example of sharp reproof administered to counsel by a court appears in People v. Emmett, 123 Cal. App. 678, 12 P. 2d 92 (D. C. of App. 1932). During a colloquy between court and counsel over the challenging of a juror the court remarked to counsel that “Your standing before these courts Mr.-is not such to entitle you to any great consideration.” An affidavit was filed charging the judge with bias and prejudice.

On appeal it was said that there was an entire absence of any allegation of fact justifying the inference that the court was biased or prejudiced in the slightest degree against the appellant.

An excellent statement of the rule and the reason therefor is set forth in Higgins v. City of San Diego, 126 Cal. 303, 58 P. 700 (Sup. C. Cal. 1899):

“We can see nothing to justify appellant’s conclusion that disqualifying bias exists in the minds of the judges from the episode as to the insufficient affidavit. The judges might without just provocation have thought the attorneys guilty of contempt, and might have said so; but we cannot say that for this reason they would be disposed to bear down upon the attorneys’ client or unduly favor the city. Nor can vre so far impeach the sense of fairness and justice which it is presumed rests in the conscience of every judge as to say that, because the attorney has incorporated distasteful and even scandalous matter In a brief reflecting upon the judge, therefore the judge would punish the offense by mulcting the innocent client. If we must presume bias and prejudice towards a client because of ill feeling towards the attorney, it would establish-a dangerous rule by which the attorney through his own fault could have liis case transferred to another judge by quarreling with the court. We prefer to believe that a judge may, with or without cause, cordially dislike and even distrust an attorney, and yet be capable of doing exact justice towards his client.”

Also in May v. May, 150 Ky. 522, 150 S. W. 685 (Ky. Ct. of App. 1912), it was urged that the judge was disqualified because he was unfriendly to appellant’s attorney and on intimate terms with opposing counsel. The court said:

“A judge of a court is human, and like every other man, must have his likes and dislikes, must find in the members of the bar characteristics and qualities which he likes or dislikes, of which he approves or disapproves. In so far as he is not swayed by these natural emotions to do any man an injustice, the fact that he has them in common with his brother man does not disqualify him from trying a case.”

Aside from the considerations to which we have already adverted, the challenge is insupportable for still another reason. It does not seek the disqualification of Judge Waugh in any ease now pending before him nor on behalf of any particular litigant now before him. It is asked that he disqualify himself or that he be disqualified generally in all cases in which Miss (fiawans appears as attorney becanse of bias and prejudice against her.

Manifestly such challenge is not within our statute, which relates, as all such statutes do, to “any matter in controversy in a cause pending in his court.” (Sec. 193.) We have found no reported ease where a judge has been subjected to any such general disqualification.

The New Jersey statute is more comprehensive than the common law, and this special tribunal, which is created by it for the purpose of determining attacks upon the qualification of a judge, must be bound by its provisions and limitations. As Corpus Juris Secundum puts it: “In order that a judge may be disqualified, there must exist a ground authorized by law to disqualify him, and it is not for the courts to add other grounds of disqualification. As a general rule, where the grounds which will operate ás a disqualification of a judge are expressly and comprehensively set out in a constitution or statute, such provisions are held to be exclusive, particularly where the grounds for disqualification prescribed by the statutes comprehend all those recognized at common law * * (48 C. J. S., § 77, Judges; Garrett v. State, 187 Miss. 441, 193 So. 452 (Miss. Sup. Ct. 1940); Blakeman v. Harwell, 198 Ga. 165, 31 S. E. 2d 50 (Sup. Ct. 1944); Riner v. Flanders, 173 Ga. 43, 159 S. E. 693 (Sup. Ct. 1931)).

Our examination of the law and our study of the affidavit have convinced us that the challenge made cannot be sustained. And we are likewise convinced that under the circumstances. Judge Waugh would not be justified in recusing himself.

An order may be presented dismissing the challenge.


source: Caselaw Access Project

author: Carton, J. A. D.

license: Public Domain

text:
    IN THE MATTER OF THE PETITIONS OF PUBLIC SERVICE ELECTRIC AND GAS COMPANY, PURSUANT TO N. J. S. A. 48:3-17.6 FOR THE RIGHT TO EXERCISE THE POWER OF EMINENT DOMAIN, ETC., AFFECTING LANDS OF JOHN A. SCHROTH, ET AL. APPEAL OF CITIZENS OPPOSED TO POWER TOWERS, READINGTON CHAPTER, INC., APPELLANT, v. PUBLIC SERVICE ELECTRIC AND GAS COMPANY, AND BOARD OF PUBLIC UTILITY COMMISSIONERS OF THE STATE OF NEW JERSEY, RESPONDENTS.
    Superior Court of New Jersey-Appellate Division
    Argued January 29, 1968
    Decided March 15, 1968.

      Before Judges Goldmann, Kilkenny and Carton.
    ■Mr. Thomas J. Beetel argued the cause for -appellant (Messrs.- Sunt, Faherty & Beetel, attorneys).

      Mr. Charles A. Lamby, Jr. argued the cause for respondent Public Service Electric and Gas Company.

      Mr. William Gural, Deputy Attorney General, argued the cause for respondent Board of Public Utility Commissioners of the State of New Jersey (Mr. Arthur J. Sills, Attorney General of the State of New Jersey, attorney; Mr. Leon S. Wolk, Deputy Attorney General, of counsel and on the brief).
   The opinion of the court was delivered by

Carton, J. A. D.

The Board of Public Utility Commissioners (Board)' granted Public Service Electric and Gas Company (Public Service) the right to condemn certain lands for a 200-foot-wide right-of-way from a point in the Township of Holland in Hunterdon County near the Pennsylvania line to the Township of Branchburg, Somerset County. This right-of-way or corridor is to be used to construct overhead transmission facilities to transport bulk electric energy from Pennsylvania to several northeast states, including New Jersey. This portion of the route, together with the proposed northern branch extending from Branch-burg to the New York border, compromises a part of a major power generation and transmission network known as the “Keystone Project.”

The Keystone transmission facilities in this State will consist of steel powers varying in height from 82 to 192 feet,, depending on the nature of the terrain, the spanning distance between towers being from 400 to 1940 feet. These towers will support 500,000-volt, three-phase transmission lines consisting of six aluminum cables.

• Appellant is the Committee Opposing' PówefL Towérs of Keadington, Inc. (C. O. P. T.¡Keadington), a nonprofit corporation of residents in the Keadington area formed to voice opposition to the method of transmission: a»;d,the design and route of.this network. At the hearing.,before .the-Board, appellant and other interested parties, asserted .that .the erection of the towers and.the electric transmission system would .ad-, versely, affect the aesthetic character o^,.the-lands through which the,right-of-way passes and urged,.among other things,, that the cables should be placed underground, .thus eliminating the need for the towers.

On this appeal appellant does not make,any specific,chal-, lenge to the factual findings of the Board, but charges that' the Board, in arriving at its conclusions^ failed''to exercise various planning functions allegedly imposed upon it by statute. The manner in which it is claimed the/board was remiss will be considered hereafter,

I.

BACKGROUND AND PROCEEDINGS BEFORE BOARD

A brief summary of the salient factual background of this controversy and the proceedings before the Board is necessary to understand and determine the issues raised on this appeal by O. O. P. T. Keadington, the sole appealing party.

Early in 1965 Public Service, a New Jersey corporation supplying electricity to the public in 233 New Jersey municipalities, filed petitions with the Commission, pursuant to N. J. S. A. 48:3-17.6 and 48:3-17.7, to exercise the right of eminent domain to acquire interests in certain lands needed for a portion of the right-of-way between Holland Township and Branchburg. These petitions, together with notice of the time and place of the initial hearing, were served on the property owners. Notice was also served on the municipalities in which the properties are located, as well as on the counsel to the Governor, the Department of Conservation and Economic Development, and others. Pursuant to Board directions, Public Service also published notice of the hearing in several newspapers in Hunterdon and Somerset Counties.

In August 1965 C. O. P. T. Tewksbury (not the appellant, but another nonprofit corporation organized generally for the same purpose as appellant) filed a petition, pursuant to N. J. S. A. 48:2-19 and 48:2-36.1, requesting the Board to compel Public Service to submit a complete report on “the feasibility of the method of transmission of electrical energy through the State of New Jersey and the feasibility of the entire route to be taken in New Jersey.” C. O. P. T. Tewksbury had appeared at the outset of the hearings on the eminent domain proceedings. On September 28, 1965 its petition was consolidated with the eminent domain matters.

Appellant C. O. P. T. Readington was formed on November 12, 1965; and on January 24, 1966 (the date of the 27th hearing), over objection of Public Service, it was permitted to intervene.

The Board conducted 37 hearings extending over some 18 months, during the course of which voluminous testimony was presented and 139 exhibits received into evidence. (37 volumes, consisting of 3,900 pages of testimony, have been submitted to the court for consideration on this appeal.) At the conclusion of the hearings the Board filed a 78-page opinion in which it determined that the relief sought by Public Service was in the public interest. In granting Pub-lie Service the authority to exercise the power of eminent domain to acquire the rights-of-way requested in the petitions, the Board, as it was required to do, made numerous findings on the issues raised in the consolidated proceedings.

II.

FINDINGS AS TO REASONABLENESS OF TAKING UNDER N. J. S. A. 48:3-17.7

The Board made the statutory findings required by N. J. S. A. 48:3-17.7, including specific determinations that the taking was reasonably necessary for the service, accommodation, convenience or safety of the public; that the taking was compatible with the public interest, and that it would not unduly injure the owners of private property.

In its decision the Board reviewed at length the evidence which overwhelmingly demonstrated the need for the proposed facilities, and sketched the extent and character of the area served by Public Service and the underlying factors which pointed inexorably to the tremendously increased demand for electric power in the near future. The evidence showed that the company’s service area has realized a high degree of diversified industrial, commercial and residential growth because of the availability of airport, rail, seaport and highway facilities; that population of the area had greatly increased, accompanied by a corresponding growth in sales of electricity, and that the need for reliable electric service to meet these rising demands was a major factor which led to the decision to build, in conjunction with the other companies, the system of extra high-voltage transmission lines. Such facilities are intended to deliver to New Jersey energy generated at low cost at coal fields in Pennsylvania and at the same time provide high-capacity inter-area ties. The Board, in referring to the famous northeast area blackout of 1965, strongly emphasized the importance of interconnection coordination, area inter-ties and power pooling, thus greatly enhancing the system reliability of Public Service and its ability to render safe, adequate and proper service to its customers.

Foting that although nuclear power plants are becoming more economically competitive with other forms of electrical generation, the Board expressed the view that the concept of mine-mouth generation as exemplified by the Keystone Project should not be abandoned as obsolete. The location of the generating site in Pennsylvania, rather than locating new or expanding existing coal using plants in New Jersey, would also have the advantage of not contributing measurably to air pollution in New Jersey.

III.

FINDINGS AS TO FEASIBILITY OF PROPOSED OVERHEAD TRANSMISSION AND FEASIBILITY OF ROUTE

The Board found that the Keystone Project, as well as the Public Service proposal for the construction of overhead transmission facilities in New Jersey, was a reasonable and feasible means of transmitting electricity and that underground DC transmission as urged by C. O. P. T. Reading-ton and others was not economically or technically feasible at the present time.

In arriving at this conclusion the Board reviewed in considerable detail the evidence as to the comparative cost of the underground and overhead lines and the technological considerations involved. It found that the costs of underground transmission would be at least 14 times greater than overhead, and that such a cost differential would be prohibitive. The Board referred to the numerous problems not yet resolved concerning the technical feasibility of constructing 500,000-volt DC transmission facilities underground. The major obstacles relate to power flow reversal and to the dissipation of heat generated in the cables by transmission of such high voltage. The rate of heat dissipation is affected by the type of insulating materials used to surround the cables and the thermal resistance of the soil in which the cable is buried. The Board concluded that in the present state of the art, although there were many new developments and techniques in this field, the reliability and efficiency of the cable and equipment proposed, for use in an underground system, even if available, had not been satisfactorily demonstrated. It was also pointed out that there was no substantial proof that, such equipment would be readily available in the, near future.

The Board also considered whether the company’s method, plans and actions with respect to the entire route were feasible. Reference was made to evidence offered by Public Service that at least six routes through Hunterdon County were considered before it decided that the most feasible route for the Holland-Branchburg leg, considering cost and minimum damage to private property, would be a 200-foot right-of-way immediately adjacent to and abutting New Jersey Power and Light Company’s right-of-way.

At the time of the hearing the exact location of the Branchburg-New York route was still tentative. Selection of the terminal point in Suffern was predicated upon the plan to connect with an inter-area tie at that point with the New York system. Since a straight line from Branch-burg to the Suffern terminal passes through heavily congested areas, some deviation was necessary to meet the practicalities of acquisition of rights-of-way. Originally the. tentative route passed east of Lake Hopatcong and Lake Mohawk. However, after a number of meetings were held between Public Service and various municipalities, planning boards and citizens’ groups, the tentative route was changed to pass west and north of the lakes.

With respect to the Holland-Branchburg leg, the Board found that Public Service had met the burden cast upon it of submitting evidence that it had considered alternative routes in selecting the right-of-way, the availability of such routes, and the reasons why they were discarded in favor of the route finally chosen. It observed that Public Service had made field investigations, utilized land surveys, paralleled existing rights-of-way where feasible, avoided heavily built-up areas where reasonably possible, and met with representatives of local interests in order to inform public officials and residents of the proposed route and to consider such alternate routes as they might suggest. The Board found the Holland-Branchburg route to be reasonable. It also concluded that the route presently proposed by the company from Branchburg to Suffern was reasonable.

At the conclusion of the hearings, the Board granted Public Service authority to condemn the properties required for its right-of-way and upheld the propriety of overhead transmission construction, as well as the feasibility of the route from Holland Township to Branchburg and the tentative-route from Branchburg to New York (except for possible deviations to comply with conditions imposed in'the order)/ In addition, it ordered Public Service to locate its towers, wherever practicable and feasible, so as to conform with the topography, thereby minimizing their effect upon the surrounding areas. It further directed that Public Service establish a program of initial and periodic painting of the1 towers to minimize their effect upon their surroundings; to employ nonuniform clearing of the right-of-way and, wherever possible, allow a maximum number of mature trees tó remain standing; to landscape by means of planting low-' growing species where the right-of-way was conspicuous from heavily traveled roads, and, wherever practicable and feasible, to permit special uses of the right-of-way for farming, recreation and other appropriate purposes. ■ Public Service was also directed to submit, no later than 30 days from the' date of the decision, an outline of the steps it proposed' to-take with respect to the implementation of the order.

Our review1 of the record satisfies us that there was more than sufficient credible evidence to support the Board’s find-' ings and conclusion.' We conclude that its determination mav not be disturbed.

We thus limit oux consideration to the specific legal issues raised on this appeal and to which we now turn.

IV.

THE LEGAL ISSUES INVOLVED

As we have already mentioned, appellant’s attack on the decision of the Board relates principally to the scope of the Board’s functions in the planning and zoning field. It charges that the Board failed properly to discharge the planning and zoning function committed to it by the Legislature.

With respect to the Board’s planning function, appellant advances the thesis that the Legislature has man-, dated the Board to become “the State-wide Planning and Zoning Agency over Public Utility Construction.” This broad concept of the Board’s duty to function as a planning supervisor over public utilities proceeds from appellant’s interpretation of R. S. 40:55-50. That section of the Municipal Zoning Act provides:

“This article or any ordinance or regulation made under authority thereof, shall not apply to existing property or to buildings or structures used or to be used by public utilities in furnishing service, if upon a petition of the public utility, the board of public utility commissioners shall after a hearing, of which the municipality affected shall have notice, decide that the present or proposed situation of the building or structure in question is reasonably necessary for the service, convenience or welfare of the public.”

We cannot agree that the Board has been given planning and zoning powers of the breadth and afSrmative character thus attributed to it simply because of this provision. The quoted section of the Municipal Zoning Act merely specifies that neither the act nor any ordinance made under its authority shall apply to property, buildings or structures used or to be used by public utilities in furnishing service, where the Board, after hearing, shall determine that the proposed building or structure is reasonably necessary for the service, convenience or welfare of the public.

Judicial, construction.of the provision has established that it is an unwritten exception to every municipal ordinance:. Application of Hachensack Water Co., 41 N. J. Super. 408 (App. Div. 1956). We pointed out in N. Y. Central R. R. v. Borough of Ridgefield, 84 N. J. Super. 85, 93 (App. Div. 1964), that public utilities are subject to the municipal zoning power, but by B. S. 40:55-50 the .Legislature created a method for resolving conflicts between different interests and policies — the “public” served by 'the utility on the one hand and the limited group benefited' by the zoning ordinance on the other. “This exemption section expresses a legislative intent that, in the zoning field, -at least some power over a utility is reserved to a municipality, subject to the supervi-sory authority of the Board [of Public Utility Commissioners]' to declare the local regulation inapplicable,” upon' making the necessary determination prescribed therein. In re Public Service Electric & Gas Co., 35 N. J. 358, 373—74 (1961).

As we stated in Ridgefield (84 N. J. Super., at p. 94), R. S. 40 :55—50 makes clear the legislative purpose that local zoning regulation, however beneficial, shall be subordinate to the broader public interest served by the public utility.

Where the authority of that provision is invoked by the public utility, the Board has the power and the duty to consider the suitability of the site chosen for the proposed structure, the physical character of the uses in the neighborhood, the proximity of the site to residential development, the effect on abutting owners, and similar zoning considerations. In re Monmouth Consolidated Water Co., 47 N. J. 251 (1966). Justice Francis’ opinion in the latter case described the nature and scope of the Board’s duty in such a proceeding:

“The hearing before the board on the utility’s petition to establish a discordant use in a prohibited zone was not intended by the Legislature to be simply a pro forma approval of management’s decision. * * * ' Further consideration of the matter should not be limited to the ordinary factors which govern a decision as to whether the public convenience and necessity will be served by a course of operation or conduct proposed by a utility. The issue is broader: (a) Is the projected deviation from the zoning ordinance sufficiently necessary for the convenience and welfare of the public in connection with the service provided by the utility to warrant its authorization; and (b) : If so, can the impact of the discordancy on the locality be lessened by imposition of reasonable conditions designed to preserve aesthetic and other relevant zoning considerations?” (at p. 259)

■[3, 4] We note that B. 8. 40:55-50 by its terms does not become operative until the public utility files a petition with the Board on notice to the municipality seeking exception from the zoning regulations. That section cannot be read to authorize or direct the Board to conduct an inquiry on its own initiative as to whether the proposed transmission system adversely affects the zoning regulations of the municipalities through which the lines pass. Nor was the filing of such a petition a pre-condition under the existing statutory scheme to the Board’s exercise of its eminent domain jurisdiction ox its jurisdiction invoked by Tewksbury C. O. P. T.’s petition to investigate the feasibility of overhead as opposed to underground transmission and the feasibility of the route.

In the event that any conflict between the proposed project and any valid zoning regulation is shown to exist, Public Service must still proceed under R. S. 40:55 — 50 for the necessary relief. Hindsight may demonstrate that time, energy and expense might have been saved had the utility initiated inquiry to. ascertain whether exceptions would be required under this provision and filed the necessary petitions in order that they might be considered in connection with these proceedings. Indeed, it would seem to us from a practical standpoint that the Board should consider adopting a procedure applicable to future cases of this kind whereby it may be ascertained at the outset of the proceeding whether the filing of petitions under R. S. 40:55-50 is contemplated. The Board may then make provision for a hearing, of such proceeding, along with the main proceeding if such course of action is indicated.

Even though R. S. 40:55-50 is not applicable here, it does not follow that the Board may take too narrow a view of its own power and ignore planning and zoning considerations in exercising its investigatory function under R. S. 48:2—19 and 48:2-36.1. In In re Public Service Electric & Gas Co., 35 N. J. 358 (1961), the Court said:

“It [the Board! has an inherent obligation of a primary and fundamental nature to protect the public interest in the matter of the service by utilities, not only in relation to the customer, but also from the standpoint of the impact of the method of service on other segments of the public as well and it must always be affirmatively alert to discharge that responsibility.” (at p. 381)

These considerations are identical with those applicable under R. S. 40 :55-50.

We do not read this language of the court as an expression that the Legislature has imposed upon the Board an affirmative role of planner on a regional basis, in the same way that the-Legislature has conferred planning functions upon county and municipal planning agencies, on a more limited geographical basis. Rather, we interpret the quoted statement as expressing the view that the Board, in exercising its powers in situations such as this, must take into consideration not merely the engineering and economic aspects of the project, but also planning considerations, including those of an aesthetic character, in the balancing of interests.

Thus, the responsibility rests with the management of the public utility in the first instance to determine whether a project shall be undertaken, as well as the extent and character of the facilities to be constructed, and their location. Cf. Monmouth Consolidated Water Co., 47 N. J. 251, 259 (1966). Such a decision does not-of itself determine that the project satisfies the criteria of In re Public Service Electric <& Gas Go., supra, any rhore than it establishes the feasibility of the project or the necessity in the public interest of the proposed facilities. The Board still retains general supervisory control of all aspects of such project on a broad basis.

.[7] Our review of the record in this case satisfies us that the Board, in arriving at its determination, did take into consideration all of the pertinent factors, including the impact of the proposed project on the community.

Public Service initiated its planning of the Holland-Branehburg leg of the right-of-way in 1962. The record establishes that it laid out the route of the transmission line after examination of area photographs, geodetic maps and land surveys^ It considered the use of an existing right-of-way of the New Jersey Power & Light Company and the acquisition of additional width to form the 200-foot strip deemed necessary for the facilities. However, negotiations were unsuccessful in this direction because New Jersey Power & Light Company intends to make use of its right-of-way in the near future. Ultimately Public Service determined to parallel an existing right-of-way of that company in order to use a common corridor and cause a minimum severance of properties. Deviations were necessary in some instances in order not to interfere unduly with buildings and other improvements.

There was evidence that it considered and examined at least six routes through Hunterdon County before reaching the final decision as to the location of this route which is about 22.8 miles in length. With respect to the still tentative Branchburg-New York leg of the Keystone Project, the proofs showed that significant route alterations were made as a result of numerous meetings between Public Service and local interested parties.

•The utility presented evidence before the Board at great length as to the need for the proposed transmission facility, as to the feasibility of underground as against overhead installation, the feasibility of the entire route, the investigations and efforts of the utility, its various decisions and the bases for them. The Board afforded a full'opportunity to all interested parties to bh heard and allowed a complete' exposure of all matters’ of fact- and expert opinion by all parties on the many facets of the project. Witnesses testified ón behalf of appellant, including the Director of the Hunter-don County Planning Board. Notice of the proceeding had been given to all municipalities and counties involved. It cannot be claimed that anyone who had an interest in the matter was denied an opportunity to be heard. The record demonstrates the contrary.

It may be noted that the Board’s decision was not a blanket approval of the project as submitted by Public Service. The Board referred to the factors considered by the company in selecting the route from Branchburg to Suffern, commenting that consideration had been given to the use of existing rights-of-way and the possibility of a major jetport in the Bowling Green Mountain area and land acquisition problems in the more developed areas. But it also ordered Public Service to consider the possibility of using certain railroad rights-of-way suggested by Mrs. Tatton, the secretary of appellant, where they were suitable for this use, and to consider conforming the route to the contour of the terrain in developing the final location of the route.

C. O. P. T. Readington refers to Scenic Hudson Preservation Conference v. Federal Power Com’n, 354 F. 2d 608 (2d Cir. 1965), as authority for its contention as to the Board’s planning duty. Scenic Hudson involved judicial construction of the Federal Power Act, 16 U. S. C. A. § 803(a), a provision which confers much broader powers upon the Federal Power Commission than are conferred upon the New Jersey Board under our statutory scheme.

Appellant’s further contention that the decision of the Board was made without the benefit of consultation with the Division of Regional Planning, Department of Conservation and Economic Development, finds no support in the record. The claim here is that because the Division is charged with promoting the “orderly development of the State’s physical assets” (N. J. S. A. 13 :1B-15.52), the Board must “co-ordinate” with the Division on matters such as the Keystone Project.

The Board decision stated:

“Since tlie outset of these proceedings the Department of Conservation and Economic Development was on notice with respect thereto. Furthermore, COPT Readington was informed that Commissioner Roe would be heard on any day that he chose to appear at the hearings and, as a matter of fact, a date was set for that specific purpose. The Commissioner did not appear, but on February 10, 1967 submitted to the Board a statement he delivered on May 4, 1966 before the Senate Committee. This is contained in Exhibit OJ-12. Accordingly, the Commissioner’s ‘views on this subject’ are before the Board, and essentially are that it would be in the public interest for pending Federal legislation to be adopted providing for an intensive program of research and development with respect to ' the placing of electric transmission lines underground. * * *”

As we have pointed out, the Board recognized the impact of overhead towers and lines on aesthetics, but concluded the techniques involved in such underground transmission had not yet reached a point where the feasibility of such installation had been established. As the Board remarked, the Commission supplied no current remedies which would lead to a different conclusion.

Appellant also complains about the procedure followed in carrying out the Board’s decision. On June 28, 1967 Public Service submitted to the Board by letter “an outline of the steps it proposes to take with respect to the implementation of the Orders of the Board * * This letter was in response to six orders set forth at the end of the Board’s decision and summarized above, the essence of which is that Public Service take all measures possible to minimize the adverse effects of its power towers. Appellant claims that it was denied due process in that it was not afforded an opportunity to be heard on the contents of this letter. The Board, it asserts, should have granted a further hearing on its own motion to consider the contents of this letter.

So far as the record shows, appellant never asked to be heard. Consequently, it cannot be said that appellant was denied an opportunity to be heard.

The letter was simply a proposal for meeting the Commissioners’ directions. The record does not show that the. steps outlined by Public Service were approved by the Board or whether they have been effectuated. If appellant wishes to oppose Public Service’s suggestions as improper or inadequate, it may file its objection with the Board. The Board may consider and act on such complaint in the light of the circumstances.

Appellant’s argument that the Board may have been without jurisdiction in this case is frivolous. It seems to contend that the Keystone Project involved the sale of electric energy in interstate commerce and consequently falls under the jurisdiction of the Federal Power Commission by reason of 16 U. S. C. A. § 824(b). This argument misconceives the purposes of the present proceeding, which was to determine whether Public Service could exercise its power of eminent domain on property it was unable to acquire by agreement of the owners. The federal enactment contains no provision empowering the Federal Power Commission to grant the authorization sought in this action by Public Service. That statute concerns rates, consolidations, purchase of securities, issuance of securities, etc. — none of which is involved here. There is no conflict between state and federal law. The Board has jurisdiction.

Finally, we see no merit in the argument that the Board considered matters outside the record.

Affirmed.

       In its decision the Board points out that the residents of Reading-ton, the township from which appellant’s organization is drawn, were aware well in advance of the proceedings of the plan to construct the proposed transmission lines as well as of the start of these proceedings, and that the chairman of C. O. P. T. Readington by letter informed the Board on January 3, 1965 that its members had been interested in the project for well over a year. The Board also alluded to the fact that the secretary of this organization had appeared pro se and attended all but a few of the earlier hearings. The record discloses that on August 4, 1965 an appearance was entered in the proceedings by the township attorney on behalf of' Readington Township.


author: Gaulkin, S. J. A. D.

text:
    CHANEL INC. AND CHANEL INDUSTRIES, INC., PLAINTIFFS-APPELLANTS, v. CASA FLORA COMPANY, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued November 6, 1967
    Decided March 19, 1968.

      Before Judges Gaulkin, Lewis and Kolovsky.

      Mr. Seymour Margulies argued the cause for plaintiffs-appellants (Messrs. Levy, Lemken & Margulies, attorneys; Messrs. Netter, Lewy, Dowd, Pox, Ness, & Stream by Mr. Lee Epstein, on the brief).

      Mr. Milton M. Unger argued the cause for defendant-respondent (Messrs. Milton M. and Adrian M. Unger, attorneys; Mr. Jack J. Stecher, on the brief).
   The opinion of the court was delivered by

Gaulkin, S. J. A. D.

Plaintiffs (hereafter Chanel) sued to enjoin defendant from rebottling and selling plaintiffs’ “Chanel No. 5 Ean de Cologne.” The trial court entered judgment in favor of defendant (94 N. J. Super. 110 (Ch. Div. 1967)) and Chanel appeals.

Chanel distributes the cologne in sealed bottles of various sizes. It claims that, at least in New Jersey, it sells only to 500 retailers selected by it, and with them it maintains a minimum resale price policy pursuant to N. J. S. A. 56:4-3 et seq. Its fair trade contracts with those retailers provide as follows (emphasis ours) :

“EATJ DE COLOGNE

Size Retail Price Each

379 .... 16 fl. oz. .. . 17.50

378 .... 8 fl. oz. ... 10.00

377 .... i fl. oz. . .. 6.00

376 .... 2 fl. oz. .. . 3.50

If sold by the ounce or smaller quantity: 1 ounce or any fraction thereof, 2.00”

Defendant buys large bottles of the genuine cologne from wholesalers in Massachusetts and New York and rebottles it in one dram (1/8 ounce) vials which it packages in what it calls a “purse size flaeonette.” Defendant sells these only to wholesalers, at 36^ each. Where these wholesalers are located does not appear. Defendant provides them with display material to be given to the retailers which states the retail price of the flaeonette to be $1. However, so far as defendant is concerned, the retailers may sell the flaconette for any price they choose. Chanel did not join as a defendant any price-cutting retailer.

Chanel argues that the cologne in defendant’s flaeonette is not truly Chanel No. 5. Judge Herbert held that that had not been proved. We see no reason to overturn this conclusion, State v. Johnson, 42 N. J. 146 (1964), and therefore we deal with the remaining questions involved in this appeal upon the assumption that defendant’s vials do contain genuine Chanel No. 5.

Chanel asserts that defendant’s operations violate the bottle law, N. J. S. A. 56:3-14 et seq., the New Jersey trade mark law, N. J. S. A. 56:3-1 et seq., and Chanel’s legally fixed minimum price schedule and constitute unfair competition. We agree with Judge Herbert’s rejection of these contentions, and will add but little to the reasons stated by him.

Prestonettes, Inc. v. Coty, 264 U. S. 359, 44 S. Ct. 350, 68 L. Ed. 731 (1924) held that it was not a violation of the federal trade-mark act to rebottle and repackage Coty perfume and sell it as such, provided the label informed the purchaser of the facts. As Judge Herbert pointed out, although Prestonettes has been severely criticized it has never been overruled, and even Chanel admits that, at least with reference to federal trademark law, Prestonettes represents the prevailing law. And in Champion Spark Plug Co. v. Sanders, 331 U. S. 125, 67 S. Ct. 1136, 91 L. Ed. 1386 (1947) the Supreme Court not only adhered to Prestonettes but held that selling reconditioned Champion spark plugs by that name but with full disclosure was not unfair competition. See also Restatement, Torts, § 737(b) (1938); cf. Coca-Cola Co. v. Bennett, 238 Fed. 513 (8th Cir. 1916).

However, Chanel says that its trade-mark is also registered under N. J. S. A. 56:3-1 et seq., and urges that, since in construing our own trade mark act we are not bound to follow Prestonettes and Champion, we should hold that our statute forbids conduct such as Prestonettes and Champion permitted.

Chanel states that New York has so construed its statute, Lanvin Parfums, Inc. v. Le Dans, Ltd., 9 N. Y. 2d 516, 174 N. E. 2d 920 (Ct. App. 1961), certiorari denied 368 U. S. 834, 82 S. Ct. 58, 7 L. Ed. 2d 35 (1961). But the New York statute expressly provides, which ours does not, that a person is guilty of a misdemeanor who

“Knowingly sells, offers or exposes for sale, any goods which are represented in any manner, by word or deed, to be the manufacture, packing, bottling, boxing or product of any person, firm or corporation, other than himself, unless such goods are contained in the original package, box or bottle and under the labels, marks or names placed thereon by the manufacturer who is entitled to use such marks, names, brands or trade-marks', * * (Emphasis added.)

This statute, now § 279-n of the General Business Law of New York, McKinney’s Consol. Laws, c. 20, was part of the Penal Law of New York when Lanvin, supra, was decided. Chanel argues that N. J. S. A. 56:3-8 is the equivalent of the above quoted section of the New York law. We disagree.

Chanel cites no case and we find none which has construed a statute such as ours as the New York statute was construed in Lanvin. On the contrary, all the cases we have found which arose out of statutes similar to ours have adhered to the rules of Prestonettes and Champion. They have held that where there is full disclosure of the facts there is no trade-mark infringement or unfair competition. In fact, until the Court of Appeals reversed the Appellate Division in Lanvin, the New York statute was so construed, even though the statute had been on the books since 1889 and had covered bottlers since 1908.

In Lanvin the Appellate Division had followed Prestonettes and found in favor of defendant rebottler of Lanvin’s Arpege perfume. Justice (now Judge) Breitel, speaking for the majority of the Appellate Division, 12 A. D. 2d 104, 208 N. Y. S. 2d 675, 678 (App. Div. First Dept. 1960), said:

“Although subdivision 6 of section 2354, then as Penal Code, section 364, was added in its original form in 1889 (L. 1889 ch. 45), and as far back as 1908 (L. 1908 ch. 427) it was amended to cover bottlers, boxers, and packers, rarely, if ever, has it been suggested by a court that its design was to prevent rebottling with truthful labels, including a trade name. On the contrary, it has been uniformly held that the statute is a fraud statute and that in the absence of fraud or deception it would lack constitutional validity.”

He pointed out that Prestonettes arose in New York and the New York statute had been cited to the United States Supreme Court.

In Guerlain, Inc. v. F. W. Woolworth Co., 297 N. Y. 11, 74 N. E. 2d 217 (Ct. App. 1947), certiorari denied 332 U. S. 837, 68 S. Ct. 220, 92 L. Ed. 410 (1947) Judge Euld, speaking for the Court of Appeals, held that the sale by E. W. Woolworth Co. of Guerlain perfume in ampules smaller than defendant’s flaconettes at ten cents each violated New York’s Eeld-Crawford Eair Trade Act because Guerlain had validly fixed a minimum price of $1.60 for one dram or less of its perfume. Nevertheless Judge Fuld, joined by Chief Judge Desmond, dissented in Lanvin (174 N. E. 2d, at 923) and voted to affirm upon Judge Breitel’s opinion.

In “The Problem of Trademark Dilution and the Anti-dilution Statutes,” 44 Calif. L. Rev. 439, 478 (1956) Professor Walter J. Derenberg pointed out that the earlier versions of the Lanham Act, until shortly before its enactment, included a provision which permitted the registrant of a trade mark to forbid repacking but “strong opposition by the representatives of the Antitrust Division of the Department of Justice” and others resulted in the elimination of this provision from the statute. This and the reported cases which have involved repacking, rebottling, repairing and renovating lead us to the conviction that we should not strain for the construction of N. J. S. A. 56 :3-8 sought by Chanel. Whether and to what extent repacking and rebottling with full disclosure should be forbidden involves questions of policy which should be solved by the Legislature and not by our filling into the statute that which the Legislature did not place therein.

Chanel urges that in any event the reference to “Chanel No. 5” in the sale of its rebottled cologne, a fragile substance easily imitated and adulterated, is unfair competition. It argues that as a practical matter it is impossible to police the quality of the flaconettes. Furthermore, “There is an air of exclusivity associated with the name * * * one purchases Chanel because it is Chanel. Defendants have taken this product, placed it in a cheap package and is marketing it * * * for one dollar per dram in a quantity not sold by plaintiffs. The fact that the product is sold for the price of one dollar, to The consumer. * * * in and of itself is enough to injure the reputation and good will of the plaintiffs.”

We do not doubt that dilution of a trade-mark may be enjoined. Great Atlantic & Pacific Tea Co. v. A & P Trucking Corp., 29 N. J. 455 (1959). However, on the record before us we are not convinced that such dilution takes place when the facts are fully disclosed to the purchaser. Chanel authorized the sale of its perfume by its selected retailers for $2 for one ounce. We cannot take judicial notice that the sale of an eighth of an ounce for $1 or 89 cents (the resale price in some stores) or $7 to $8 per ounce cheapens plaintiffs’ product. Chanel introduced no evidence to show that defendant’s activities did have an effect upon the buying public or on Chanel’s reputation, nor was there substantial evidence of actual confusion.

However, laying aside the question whether here such proof is essential (cf. Great Atlantic & Pacific Tea Co. v. A & P Trucking Corp., supra, at 459; “Dilution: Trademark Infringement or Will-O’-the Wisp,” 77 Harv. L. Rev. 520, 531 (1964)), we agree with Judge Herbert that Chanel’s method of operation allowed rebottling.

Chanel’s price list permitted rebottling and reselling to “a wholesaler, retailer or consumer” provided that the price of “1 ounce or any fraction thereof” was to be $2. There is nothing in Chanel’s fair trade contract which says in what style or quantities the cologne may be rebottled or repackaged. In short, if defendant’s flaconettes were sold for $2 each with full disclosure, Chanel would have no cause whatever to complain. Chanel does not argue that it was illegal for defendant to buy the cologne or to resell it to wholesalers. If defendant had sold it at retail it would have been bound to abide by the price fixed by Chanel, but defendant is a wholesaler selling to wholesalers.

However, the difficulty of policing the rebottled product to make sure it is genuine, unadulterated and undeteriorated makes it doubly important that the buyer be told the facts fully and unmistakably. Cbanel is entitled to be protected against confusion and the likelihood that a buyer might think that Chanel bottles and sells the flaconettes or is responsible for its contents. We think the defendant’s labeling, packaging and placards are not sufficiently explicit to accomplish those ends. We hold that defendant’s labels, packages and advertising matter should not mention Chanel No. 5 except in type of the same size as that which says the cologne was rebottled by Casa Flora Company, at Bloomfield, N. J., and they should say that it was done without the approval of plaintiffs who assume no responsibility for the contents. Cf. Prestonettes, supra; Bourjois, Inc. v. Hermida Laboratories, 106 F. 2d 174 (3d Gir. 1939). The exact style, arrangement and wording of the labels, the packaging, and the advertising and their positioning on the flaconettes, the packages and the placards we think should be settled by the trial court. It is not our our intention to bind the trial court to the exact wording mentioned above, so long as the guidelines we have laid down are followed.

The Judgment is modified as above set forth and the ease is remanded to the trial court for further proceedings not inconsistent with this opinion. No costs.

ADDENDUM

After the above opinion was filed, we learned that on February 27, 1968 Chapter 311 of the Laws of 1967, N. J. S. A. 24:6D-1 to 24: 6D-3, was approved effective immediately. Since we dealt with the appeal upon the basis of the facts and the law as they existed when the ease was decided by Judge Herbert, we express no opinion upon the effect of the new statute upon the issues. However, upon the remand which we have ordered the trial court may, if the question is raised by the parties, consider the bearing, if any, of the newly enacted statute upon the issues and the disposition to be made of the case.