author: Eritz, J. A. D.

text:
    IN THE MATTER OF EDUCATION ASSOCIATION OF PASSAIC, INC., THANE EMERSON BOWEN, AUDREY THALSHEIMER, RACHEL PRATHER, PAULA CLAIRE FUYDAL, IRVING GOLDSTONE, NICHOLAS S. D’AGOSTINO, MANLIO BOVERINI AND WILLIAM J. FLYNN, DEFENDANTS-APPELLANTS, CHARGED WITH CONTEMPT OF COURT.
    Superior Court of New Jersey-Appellate Division
    Argued October 18, 1971
    Decided December 6, 1971.

      Before Judges Coneord, Matthews and Eritz.

      Mr. Emil Oxfeld argued the cause for appellants (Messrs. Bothbard, Harris <& Oxfeld, attorneys).
   The opinion of the court was delivered by

Eritz, J. A. D.

Defendants appeal from judgments convicting them of contempt of court for violating an injuncfive order enjoining a strike or work stoppage by teachers in the Passaic public school system, or promoting, aiding or abetting the proscribed activity.

Our duty on such appeal, as appellants correctly suggest, is to try the matter de novo on the record below, upon the law and the facts, toward the end of adjudging both guilt and punishment. N. J. S. A. 2A:10-3 and R. 2:10-4; Bd. of Ed. of Newark v. Newark Teachers Union, 114 N. J. Super. 306, 316, 318 (App. Div. 1971) ; Sarner v. Sarner, 28 N. J. 519, 525 (1959), app. dism. 359 U. S. 533, 79 S. Ct. 1137, 3 L. Ed. 2d 1028 (1959), reh. den. 360 U. S. 940, 79 S. Ct. 1446, 3 L. Ed. 2d 1552 (1959); State v. Gussman, 34 N. J. Super. 408 (App. Div. 1955), and Zimmerman v. Zimmerman, 12 N. J. Super. 61, 69 (App. Div. 1950).

Recognition of our obligation in this regard moots for purposes of this appeal the argument here forwarded that the trial court intruded unreasonably at the hearing to the extent of having “assumed the function of prosecutor.” Even were such a charge soundly grounded, defendants would suffer no prejudice, for the “extraordinray review” (Zimmerman, supra, at 69) afforded by our law remains as a bulwark against an attenuation of the rights of an accused.

We are constrained to note, however, that we do not. find defendants’ argument to be soundly grounded in the record. The trial judge, sitting without a jury, did on occasion extend his questioning of witnesses, but this was, on its major occurrence, in respect to records produced during the testimony of the first witness relating to various meetings, and the inquiry by the court obviously intended no more than a coherent, succinct, chronological recitation of events and an identification of the people involved. Prior to his examination of the witness in this respect the trial judge assured counsel (who had already utilized the first trial day in examining the witness) of his intention to afford them “plenty of chance to ask” questions, but expressed the hope he could save time by his procedure. We believe that relatively early in the trial as it was, this method served the salutary purpose of objectively setting the stage on which the attorneys involved then performed their proper function of strategic advocacy.

Later comments by the court deploring the conduct of defendants and vocalizing the extent .to which the sensibilities of the judge were shocked by the fact that

* * * people of this knowledge and ability and position of power over the children of the City of Passaic [referring to defendants] can nevertheless absolutely, unqualifiedly, refuse to follow the law, publish it in the newspaper and tell the whole world, “We simply will not comply with the order of the Court,” and then come in and plead not guilty. * * *.

came after the adjudicatory phase of the action, and during the court’s findings and conclusions. Defendants, obviously offended by this determination, equate the understandable reaction with an erstwhile and persistent attitude of resentment for “the fact that the defendants had availed themselves of their constitutional right to plead not guilty and ask for a trial,” an equation without record support. We believe this comment and others cited by appellant not indicative of permeating prejudice. Cf. In re Buehrer, 50 N. J. 501, 508 (1967).

We find the trial court’s inquiries and comments a far cry from the participation castigated in State v. Homer, 86 N. J. Super. 351 (App. Div. 1965), and remain totally unconvinced that such “was so prejudicial as to prove unfairly devastating and detrimental to the rights of the defendant]^].” Id. at 364.

Nor do we labor under any illusion that the absence of a jury of itself insures against the possibility of prejudicial intervention by the judge.

* * * However, the necessity of judicial self-restraint is no less important where the judge sits alone; if he participates to an unreasonable degree in the conduct of the trial, even to the point of assuming the role of an advocate, what he does may be just as prejudicial to a defendant’s rights as if the case were tried to a jury. [Band's Refuse Removal, Inc. v. Fair Lawn, 62 N. J. Super. 522, 549 (App. Div. 1960), certif. den. 33 N. J. 387 (1960)].

The sharp and apparent contrast between the proscribed activity in Band’s Refuse Removal, Inc. v. Fair Lawn and the conduct of the trial judge here confirms our conviction, upon a review of the whole record, that the latter did not overstep permissible bounds of judicial inquiry or bring to the case any predetermination or innate prejudice.

The principal legal thrust of defendants’ appeal challenges the constitutionality of a prohibition against striking by school teachers, asserting at length the oft-repeated argument that the “New Jersey Constitution authorizes public employees to strike and that the distinction between public and private employment in the New Jersey Constitution is not with reference to the right to strike, but with reference to the matters about which organizations of public and private employees may deal with their employers.” Their brief acknowledges at the same time that our Supreme Court has consistently held otherwise, and has refused to hold that “teachers are beyond that ban.” Bd. of Ed., Union Beach v. N. J. E. A., 53 N. J. 29, 36 (1968); In re Block, 50 N. J. 494, 499-500 (1967). Without respect to the question as to whether the instant order may be thus questioned in a contempt proceeding, In re Bloch, supra, at 499, we observe that defendants thus answer their own question. Simply put, the issue has been squarely decided adversely to their position by our court of last resort. In such a situation it is not our function to alter the rule. Orlik v. De Almeida, 45 N. J. Super. 403, 409 (App. Div. 1957); Murray v. Michalak, 114 N. J. Super. 417, 420 (1970), aff’d o. b. 58 N. J. 220 (1971).

Defendants seek refuge in an argument that service upon them of the order said to have been violated and for the contempt of which they are charged was effectuated by “two lay persons designated by the plaintiff,” and accordingly lacked compliance with R. 4:4-3. The asserted ground is without merit. The rule specifically authorizes service alternatively to that of “the sheriff or other officer authorized by law” in a provision for service “by a person specially appointed by the court for that purpose.” Such an appointment was made here when the court, in its order, authorized service by “plaintiff’s attorney or agent.” Service was effected by plaintiff’s agents.

Mention is made of the fact that a later order, extending time for service, referred only to plaintiff and not to a designee. The later order obviously dealt with nothing more than the time limit previously imposed. Nothing in it remotely suggests an intent to vary the prior specific authorization.

All of this is of no moment in any event. Among the earliest of our reported cases appears:

* * * There are cases where the party will be considered in contempt when the injunction was not regularly served, provided they were present in court at the time it was ordered, or had other certain knowledge that the same had been ordered. [Corey v. Voorhies, 2 N. J. Eq. 5, 7 (Ch. 1838)]

This rule has retained its vitality through the years. In In re Buehrer, supra, an inference that defendant had received notice of the injunctive order was held sufficient to permit a conviction upon proofs of defiance of the order 50 N. J. at 506-507.

We are satisfied from our review of the record that all defendants had actual and timely notice of the injunction and at least so much of its contents as it is now claimed they violated. Actual notice or knowledge of a restraint compels compliance, and a defendant will not be saved from sanctions for wilful disobedience by a crafty suggestion that while he knew better, no one handed him the formal documentary embodiment of restraint.

Einally, defendants urge that the record does not support a finding of proof of their guilt beyond a reasonable doubt. We have independently and carefully reviewed the record, as is our duty, and our determination is in accord with that of the trial judge in all respects save one. We are convinced beyond doubt of the actual knowledge of defendants of the restraints imposed, and of the intentional disobedience to that order by all other than the defendant William J. Elynn. We adopt as our own the findings of the trial court, except as they rleate to Elynn, satisfied that they represent a concise and accurate distillation of the facts and reasonable inferences to be drawn therefrom, and ever mindful of the proposition that conviction for this contempt must be predicated on nothing less than proof of guilt beyond a reasonable doubt.

On the other hand, we admit to an uncertainty with regard to violation of the order by defendant Elynn, and it is this dubiety which requires our adjudication of his innocence of the charge of contempt.

William J. Elynn is a field representative employed by the New Jersey Education Association (NJEA) among whose duties were included that of assisting local teachers’ organizations affiliated with the state organization, in their contract negotiations with their respective school boards. His area of responsibility covered Sussex, Morris and Passaic Counties and included in the affiliates with which he was charged the Education Association of Passaic (EAP). In this capacity he had for some months been assisting EAP in its conferences with the Passaic Board of Education.

We agree entirely with the findings of the court below that on an occasion prior to the issuance of the restraint in question Elynn had, in a burst of temper, alluded to “games” being played by the board of education and suggested the possibility of a “work stoppage.” We concur that there is no affirmative record proof of his having taken positive action to dissuade the teachers from striking after the injunction was known. We share the trial judge’s belief that Elynn stayed, at least on some occasions, at the Alexander Hamilton Hotel, at the same time that at least some of the EAP negotiating team teachers were staying there, purportedly to avoid service upon them of the injunction. In this latter respect it is perfectly obvious that whatever other purpose the Alexander Hamilton may have served, it became the convenient caucusing locale for the negotiating committee, a place for liaison between the NJEA and EAP representatives, and a natural habitat for a negotiator such as Flynn, all in connection with negotiations which continued regularly after the issuance of the injunction on January 16, 1970 and until the settlement on February 1, 1970. The pendency of the strike did not lessen the urgent necessity in the public interest to settle the dispute and get the schools functioning again. Negotiations for that purpose between the board of education and the union representatives were going on and were at a critical stage during the days in question. Flynn’s presence there was essential to that effort and by reasonable inference is consistent with that purpose as distinguished from the purpose of aiding and abetting the strike.

We do not agree with the trial judge that the findings above converge to support beyond a reasonable doubt a finding that Flynn violated the injunction. The suggestion that a threat of work stoppage made in a moment of zealous ire during negotiations is necessarily proof of authorship of or participation in an illegal strike some time later and after an injunction has issued is, we believe, overdrawn. The equation of lack of affirmative proof of efforts by Flynn to dissuade (and we seriously question whether he had such a legal duty, although we heartily share the trial judge’s views that this was his moral duty) with inferences beyond a reasonable doubt of counselling in favor of, or at least aiding and abetting, a strike, is invalid. And were we to condemn on the basis of guilt by association we would be effectively destroying the concept of negotiation. It occurs to us that if the law requires a professional negotiator to disassociate himself entirely from his principals in the event of their illegal activity, we may be denying them and our society help when they need it most. We pause to state emphatically that such a view is intended in no sense to condone participation in the illegal activity. To the contrary, it is essential that a negotiator so situated diligently avoid participation, even while he endeavors to settle the problems producing the difficulties. His efforts in the latter direction should not be burdened, however, with the probability that he will be tarred with the brush of the guilty merely from association.

We find no direct proof whatsoever of guilt of contempt. The circumstantial proof is equivocal, susceptible of both inculpatory and exculpatory interpretation, and attractive for speculation. Such is not proof beyond a reasonable doubt, and we must acquit William J. Elynn.

Having thus completed our task of adjudging guilt, we turn to punishment. As did the trial judge, we have reviewed the presentence reports. With the exception of that of Thane Bowen, we independently concur in the sentences imposed by the trial judge, generally for the reasons stated, and herewith adopt them as our own.

Accordingly, we impose a fine of $500 upon defendant Education Association of Passaic. Sentences upon the individual defendants are to the Passaic County jail, and are as follows: Audrey Thalsheimer, 45 days; ¡Rachel Prather, 30 days; Paula Euydal, 30 days; Irving Goldstone, 60 days; Nicholas D’Agostino, 90 days; Manlio Boverini, 75 days.

We take no exception to the sentence imposed upon Bowen and adopt it for ourselves, but we believe execution of the sentence should be suspended and probation imposed. That such is within the authority of the trial court and this court is beyond question. N. J. S. A. 2A:168-1; In re Buehrer, 50 N. J. 501 (1967).

Bowen had been president of EAP and an active negotiator. As soon as the injunction was served and it became apparent that some members of EAP intended to stay away from work in contravention of the terms of the order, Bowen resigned his office. During the week following service of the injunction, negotiations continued and upon two days of that week the teachers struck. Bowen reported for work both days and there is testimony that he encouraged others to emulate his example. Elis resignation was public, and he assigned as his reason his belief “that the order should be followed and that teachers should accept whatever the Board presented.” While this exemplary, if belated, acknowledgment of the fact that the price of our liberty is obedience to law cannot serve completely to excuse a prior contempt, it provides ample justification for mitigation of punishment.

Thane Bowen is sentenced to the Passaic County jail for 30 days. The sentence is suspended and defendant is placed on probation for a period of one year. It shall be a condition of this probation, and the only one, that defendant shall refrain from participation in any illegal activity, including but not limited to striking or work stoppages, in connection with his employment as a school teacher.

An expression of our views in this action would be incomplete without our comment relating to a matter of some concern to us. The complaint supporting the issuance of the order to show cause in which appear the restraints here found to be violated was verified by an affidavit of a high official in the Passaic school system. It now appears from uncontroverted testimonjr that the affiant was not in fact sworn, does not know the notary public whose name and signature appears on the jurat (although the jurat in usual form recites that the instrument was “sworn and subscribed to before me”), actually signed the instrument in his own office in the presence not of the notary public but of the school board attorney, and did not understand he was signing a sworn statement but, acting under instructions to “Read it over and if you agree with its contents” sign it, signed the affidavit apparently only as a statement of concurrence. As it developed, a paragraph in the complaint when it was first shown the affiant, alleging among other things that picketing or other demonstrations at or near the school premises had been disruptive to the school program, was untrue. The affiant “questioned it at the time” by in-cheating "to the school board attorney that I had no knowledge of the picketing although there was a rumor that there would bo picketing or an honor guard.” Testimony from the affiant which was in no way refuted indicates that despite his concern, the language of the complaint was not changed.

Eestraint in remonstrance against and castigation of such conduct is difficult. The dangers —• to the affiant, the notary, the parties, counsel and the court —• that such practices make probable are too manifest to require detailing.

The threat of compromise to the litigation itself is not the least of these. Examples of difficulties engendered by the absence of the officer in the oath taking process are to be found, for instance, in State v. Mershon, 39 N. J. Super. 599 (Cty. Ct. 1956), and Di Giovanni v. Pessel, 104 N. J. Super. 550 (App. Div. 1969), modified 55 N. J. 188 (1970).

No ground for reversal on this basis was here asserted, nor do we think under the particular circumstances of this case such reason for reversal should obtain. But the fortuity implicit in that dictum cannot in any sense justify the indefensible procedure employed by plaintiff Passaic Board of Education and its attorney. Beyond the carelessness of the practice, we find it difficult to say with confidence, as was said in Di Giovanni, supra, that such conduct was "not demonstrative of a wanton and reckless disregard of [defendants’] rights.” 55 N. J. at 192

While the cases demonstrate that the result in a given matter may vary according to a true working of justice in that action, we believe the law to be that in order to make an affidavit, there must be present at the same time the officer, the affiant, and the paper, and there must be something done which amounts to the administration of an oath. 39 Am. Jur. 2d, Oath and Affirmation § 12, 850.

Only thus can we best insure against the occurrence of the inexcusable thing which happened here: the presentation to the court, on an ex parte application, of a written statement under oath which was factually unsupportable.

Judgment is entered in accordance with the foregoing determinations; any pending stays are vacated.


source: Caselaw Access Project

author: Tumulty, J. S. C.

license: Public Domain

text:
    RUFUS SNELL, PLAINTIFF, v. THOMAS MURRAY AND THE CITY OF NEWARK, A MUNICIPAL CORPORATION, DEFENDANTS.
    Superior Court of New Jersey Law Division
    Decided November 17, 1971.

      Mr. Robert A. Budd argued the cause for plaintiff (Messrs. Budd, Lamer, Kent, Gross & Picillo, attorneys; Mr. Robert A. Budd, on the brief).

      Mr. William Rossmoore, Assistant Corporation Counsel, argued the cause for defendants (William H. Walls, Corporation Counsel, attorney; Mr. William, Rossmoore, on the brief).
   Tumulty, J. S. C.

Is the City of Newark liable for bullet wounds sustained by plaintiff gambler in a “friendly dice game” when confronted by a drunken Newark police officer who, with gun in hand, extorted the proceeds of the game? This novel question is presented by way of a motion for summary judgment made by defendant city. The test for determining the granting of a' summary judgment motion is found in Judson v. People's Bank & Trust Co. of Westfield, 17 N. J. 67:

The standards of decision governing the grant or denial of a summary judgment emphasize that a party opposing a motion is not to be denied a trial unless the moving party sustains the burden of showing clearly the absence of a genuine issue of material fact. At the same time, the standards are to be applied with discriminating care so as not to defeat a summary judgment if the movant is justly entitled to one.
Thus it is the movant’s burden to exclude any reasonable doubt as to the existence of any genuine issue of material fact, 6 Moore’s Federal Practice, par. 56.15(3). The phrasing of our rule, R.R. 4:58-3, slightly different from Federal Rule 56(c), underscores this in the requirement that the absence of undisputed material facts must appear ‘palpably.’ All inferences of doubt are drawn against the movant in favor of the opponent of the motion. The papers supporting the motion are closely scrutinized and the opposing papers indulgently treated, Templeton v. Borough of Glen Rock, 11 N. J. Super. 1, 4 (App. Div. 1950). * * * (at 74-75)

The facts, as narrated by plaintiff, are:

A few friends of mine and myself were having a little friendly dice game when some time between 4:30 and 5:00 a.m. the door was banged open and I saw a man I knew as ‘Murray’ standing in the doorway. He seemed a little high * * * I knew he was a policeman, he pulled his gun out and said ‘I’m Lieutenant Murray, don’t nobody move,’ then he threw his badge on the table. He told us to put all our money on the table. We did. He told Eddie Little that he had seen a ten dollar bill in his hand and that the bill had better be in his pile of money on the table. He leaned over the table, looking at us, and scooped up the money that was in front of each man except one fellow that said he didn’t have any money. About this time the gun went off, I cried out that I was shot, and Murray said I wasn’t shot. Murray took the money off the table, and there was a click after Murray pulled the gun.

The parties agree that Murray was indicted and pleaded guilty to charges that he unlawfully and corruptly did solicit, by color of his office, a fee or reward not allowed by the laws of the State of New Jersey for performing his duties. Upon this plea, sentence was suspended and Murray was placed on probation for three years. So ends SnelPs saga of the “friendly dice game.”

Now for a look at the law. Clearly, a municipality may be held liable for the negligent commission of an act by its agent, while acting within the scope of his employment under the theory of respondeat superior. McAndrew v. Mularchuk, 33 N. J. 172 (1960). McAndrew has been discussed .in law review articles which nonetheless follow the doctrine of respondeat superior in municipal tort area, as seen from the following excerpts:

“ * * McAndrew v. Mularchuk concerned the negligent shooting of the plaintiff by a reserve policeman. The court held that ‘where negligent acts of commission form the basis of the claim against a municipal corporation,’ liability will be determined ‘on general principles of respondeat superior.’ * * * However, the case was to be criticized by at least one court which did not think it went far enough. [“Municipal Liability for Police Torts: An Analysis of a Strand of American Legal History,” 17 U. of Miami L. Rev., 475 at 501, 502 (1967) ]

Also see, Dakin, “Municipal Immunity in Police Torts ” 16 Clev. Mar. L. R. 448 (1967):

In New Jersey a distinction was drawn between acts of omission and those of commission. In McAndrew v. Mularchuh, the Court held that negligent acts of commission could render the municipality liable under the doctrine of respondeat superior so that ‘complete immunity does not exist.’ This was an action for injuries sustained by a minor child when he was struck by a bullet fired by a police officer who was attempting to ‘scare him off.’ Therefore, in New Jersey a municipality would be liable for the torts of assault and battery committed by police officers, since these are definitely acts of ‘commission,’ while for injuries resulting from acts of ‘omission’ the municipality would not be rendered liable. This reasoning is not followed by any other state, [at 453]

Judge William C. MatLes and Assistant U. S. Attorney Robert T. Jones, in “Toward A ‘Scope of Official Duty’ Immunity for Police Officers in Damage Actions,” 53 Georgetown L. J. 889 (1965), call for legislation giving positive statutory protection to police officers acting within the scope of their authority, and to remove that protective shield when the officers abandon their duty. This would appear to be the case law of New Jersey today.

Other cases holding the municpiality liable under the respondeat superior doctrine involve instances where the police officer was clearly acting within the cope of his employment, and while so acting, used reasonable force against the subject of an arrest. McCormick v. State of New York, 34 Misc. 2d 806, 229 N. Y. S. 2d 441 (Ct. Claims 1962); The question of the reasonableness of the degree of force used in effecting an arrest is usually a question for the jury. Brown v. United States, 256 U. S. 335, 41 S. Ct. 501, 65 L. Ed. 961, 18 A. L. R. 1276 (1921).

Another appearance of the doctrine of respondeat superior for municipal liability is when an innocent bystander is injured by police officers acting within the scope of their employment. McAndrew v. Mularchuk, supra; Evans v. Berry, 262 N. Y. 61, 186 N. E. 203 (Ct. App. 1933), rev’g 236 App. Div. 334, 258 N. Y. S. 473 (App. Div. 1932). Recovery has also been awarded against a municipalit}’’ for failure to properly train its agents. Peer v. Newark, 71 N. J. Super. 12 (App. Div. 1961), cert. den. 36 N. J. 300 (1962).

The doctrine of respondent superior is a maxim of common law founded upon a principle that a duty rests upon every man, in the management of his own affairs, whether by himself or his servant or agent, to conduct them in such a manner as to not cause injury to another, and if he fails to do so, he shall answer for damage. Poutre v. Saunders, 19 Wash. 2d 561, 143 P. 2d 554 (Super. Ct.). Likewise, under ordinary agency principles, if a police officer acts in the line of his duty and negligently causes injury, his employer — the municipal or state authority — should respond in damages. McAndrew v. Mularchuk, supra, Greenstone, “Liability of Police Officers for Misuse of Their Weapons,” 16 Clev. Mar. L. R. 397 (1967) :

So long as the officer is engaged in the general furtherance of his employers business, liability to the employer will attach regardless of a deviation from the ‘strict line of his duty.’ [at 407]

In Turner v. American District Telegraph & Messenger Co., 94 Conn. 707, 110 A. 540 (Sup. Ct. Err., 1920) however, a night watchman, employed by a third party, was shot by a roundsman during an altercation which occurred when the roundsman was sent by his employer — the defendant — to investigate the watchman’s failure to “ring in” at a signal box. The Connecticut Supreme Court of Errors, in overturning the verdict and ordering a new trial, stated that the undisputed facts showed the roundsman had concluded his business and all that was remaining for him to do was return to the office of his employer. The court said:

In uttering the taunting language, and in all that followed Sullivan turned aside from the performance of the work committed to him by his employer to have a personal controversy of his own, entirely unrelated to his employer or his employer’s interest, and in no conceivable way promotive of the latter’s business, [at 110 A. 543]

If a servant or agent deviates from the business of his master or principal and, while in the pursuit of his own ends, commits a tort, the master or principal cannot be held liable for the damage inflicted. Shefts v. Free, 105 N. J. L. 577 (E. & A. 1929); Okin v. Essex Sales Co., 103 N. J. L. 217 (Sup. Ct. 1927), aff’d 104 N. J. L. 181 (E. & A. 1927); Son v. Hartford Ice Cream Co., 102 Conn. 696, 129 A. 778 (Sup. Ct. Err. 1925) ; Gindin v. Baron, 11 N. J. Super. 215 (App. Div. 1951), and King v Patrylow, 15 N. J. Super. 429 (App. Div. 1951). Relevant is Lord Kennyon’s statement in Wright v. Wilcox, 19 Wend. 343, quoted in Isaacs v. Third Avenue R. Co., 47 N. Y. 122 (Ct. App. 1871) :

* * * when a servant quits sight of the object for which he is employed, and, without having in view his master’s orders, pursues that which his own malice suggests, he no longer acts in pursuance of the authority given.

Illustrative of the foregoing is City of Green Cove Springs v. Donaldson, 348 F. 2d 197 (5 Cir. 1965), wherein a police officer raped a woman after giving her a traffic ticket. The essential element to be grasped is that once the officer has abandoned his duty and acted in furtherance of his own interest, then the doctrine of respondeat superior does not apply. Vreeland v. Wilkinson, Gaddis & Co., 129 N. J. L. 283 (Sup. Ct. 1942), held that a servant is the alter ego of his master, while acting in the furtherance of his master’s business. But when the servant acts in the furtherance of his own malice, he ceases to become the alter ego of his master and is, in fact, his own principal. It follows then, that Lieutenant Murray, by his gunpoint extortion, not only abandoned his duty, but betrayed his trust as a police officer in the same manner as the police officer who committed the rape. See City of Green Cove, supra.

Plaintiff seems to suggest in his brief that Murray’s criminal activities are legalized because he was “on dutjr” in the sense that the Newark ordinance requires a policeman to be “always on duty,” and that the extortion was legitimatized because performed during duty hours. This suggestion overlooks the basic issue that Murray abandoned his master - and-servant status when he betrayed his duties to further his own illegal ends, as the above cited cases hold.

Liability cannot be laid upon defendant city for negligently training Murray in the use of firearms, since Murray was clearly not acting within the scope of his authority, but rather was engaged in active misfeasance of any authority he may have had; and plaintiff Rufus Snell, was not an innocent bystander, but was actively engaged in the commission of a crime, viz., gaming in violation of N. J. S. A. 2A:112-1. Peer v. Newark, supra, is therefore not applicable. Lastly, the mere fact that the City of Newark entrusted Murray with a pistol would not impose liability for his tortious conduct in using it unless the city had knowledge that he had a propensity to such conduct which constitutes the basis for this action. Lancaster v. Canuel, 193 A. 2d 555 (D. C. Cir. 1963). There was no allegation of knowledge of Murray’s propensity to engage in such conduct, in either the pleadings or the oral arguments before this court. It plainly cannot be regarded as negligence to supply effective weapons to one engaged in police work. Turner v. American District Telegraph & Messenger Co., supra. Finally, this case does not sound in negligence against the city for failure to discipline its employees, among them Murray, since no allegation to this effect had been set forth in the pleadings. In Thomas v. Johnson, 295 F. Supp. 1025 (D. C. D. C. 1968), plaintiff was injured by a police officer’s baton, and the city was held liable in negligence for failure to discipline and in retaining a police officer whom they knew to be incompetent.

Considering the foregoing, the summary judgment motion of defendant City of Newark is granted with prejudice and without costs.

Prepare order.


author: Handler, J. S. C.

text:
    STATE OF NEW JERSEY, PLAINTIFF, v. MARIO MOLINARO, ROCCO CICCHETTI, EMANUEL MONTALBANO, PETER VERDICCHIO, AND ROCCO MAURIELLO, DEFENDANTS. STATE OF NEW JERSEY, PLAINTIFF, v. ANTHONY DE PASQUE, ROSE MARIE RENNA, PETER CARLO, FRANK GRAZIANO, SHIRLEY HUDSON, JOHN F. INGUAGGIATTO, DEFENDANTS. STATE OF NEW JERSEY, PLAINTIFF, v. RICHARD PTAKOWSKI, ROBERT PIERSON, ROBERT J. CREMEN, FRED HERZOG, JOSEPH HOLLINGER, AND JOSEPH GARCIA, DEFENDANTS.
    Essex County Court Law Division (Criminal)
    Decided November 24, 1971.

      Mr. Bicharrd B. McQlynn, Deputy Attorney General, appeared for plaintiff (Mr. Qeorge F. Eugler, Jr., Attorney General of New Jersey, attorney).

      Mr. John P. Bussell, appeared for defendant Mario Molinaro (Messrs. Bussell & McAlevy, attorneys).

      Mr. Frank A. Paglianite, appeared for defendant Rocco Cicchetti.

      Mr. Harvey Weissbard, appeared for defendant Emanuel Montalbano (Messrs. Querques, Isles & Weissbard, attorneys).

      Mr. Elmer J. Herrmann, Jr., appeared for defendants Peter Verdicchio and Rocco Mauriello (Messrs. Blasi é Herrmann, attorneys).

      Mr. James G. Leonardson, appeared for defendants Frank Graziano and Robert Cremen (Messrs. Stein, Bliablias & Goldman, attorneys).

      Mr. Gerald Goldman, appeared for defendant Shirley Hudson (Messrs. Goldman, Carlet & Garrison, attorneys).

      Mr. Charles K. Kurebanas, appeared for defendant John F. Inguaggiatto.

      Mr. Donald Friedman, Assistant Deputy Public Defender appeared for defendant Richard Ptakowski (Mr. Stanley C. Van Ness, Public Defender, attorney).

      Mr. Anthony P. Peduto, appeared for defendant Robert Pierson.

      Mr. Thomas C. Brown, appeared for defendant Fred Herzog.

      Mr. Joseph G. Dooley, Jr., appeared for defendant Joseph Garcia (Thomas F. Durhin, Jr., attorney).
   Handler, J. S. C.

(temporarily assigned). These are three groups of cases (referred to herein as the Molinaro case, the Ptakowski case and the De Pasque case) in which defendants stand indicted by the State Grand Jury for various gambling offenses. Evidence was obtained through the interception of telephonic communications by the New Jersey State Police under the New Jersey Wiretapping and Electronic Surveillance Control Act, L. 1968, c. 409; N. J. S. A. 2A:156A-1 et seq. Defendants have brought motions to suppress evidence which have been consolidated because they share a single overriding issue.

The indictments charge conspiracy to violate the gambling laws as well as substantive gambling offenses. Each group of cases was initiated by an application for authorization to intercept telephonic communications submitted by the Attorney General. The application in each case was based upon an affidavit made by a detective of the New Jersey State Police who had engaged in an investigation of suspected offenses. Each affidavit recites the receipt of information from a reliable informant that illegal gambling operations involving bookmaking and lottery were being conducted over particular telephone facilities by an unknown male and other unidentified persons on a daily basis between certain hours. The bookmaker or gambler operating from the particular telephone, while not known to the informant, was said to be associated with other unknown persons or conspirators as part of a larger gambling enterprise. The affidavit further states that on several occasions in the presence of the detective the informant placed bets with the unknown individual over the particular phone. The locations of the particular phones were determined and placed under surveillance. Each affidavit indicates that conventional investigative techniques would be unavailing and also contains a statement that gambling would continue to occur over the particular subject phone and that it was therefore necessary to intercept more than initial conversations and to maintain the interception for not longer than 15 days. Upon these applications orders containing appropriate factual determinations were entered authorizing the interception of telephonic communications. In two of the investigations, upon further application, the interceptions were extended beyond the initial period. Thereafter, utilizing the information obtained, affidavits for search warrants were prepared, the warrants were issued and upon their execution defendants were apprehended, charged and subsequently indicted.

The pivotal issue involves N. J. S. A. 3A:156A-13(f). This states that “[e]very order entered under this section shall require that such interception * * * be conducted in such a manner as to minimize or eliminate the interception of such communications not otherwise subject to interception under this act.” On these motions it is contended by all defendants that the interceptions were unlawful and that all direct and derivative evidence must therefore be suppressed. More pointedly, they urge that in eondimting the interceptions herein, every single conversation expressed over the various telephones during the interceptions was overheard and recorded without regard to its content or the identity of the participants, and that this was a violation of N. J. S. A. 2A:156A-12(f).

The position of the State was articulated by Deputy Attorney General Stier, a co-director of the Organized Crime and Special Prosecutions Section of the New Jersey Division of Criminal Justice. He testified that he was responsible for the implementation of the Wiretap Act on behalf of the State Police and that he was mindful of the requirements of N. J. S. A. 2A:156A-12(f). He explained that once a wiretap order has been obtained, the physical location of the monitoring operation or plant is determined and the tape recording machine is then put into operation. At the beginning of each monitoring day the assigned police officer brings a fresh reel of tape and places it on the machine which is then turned on. The device for interception works automatically and is activated by any incoming or outgoing call. The machine is not left unattended in an operating position. The monitor usually has a set of earphones which is plugged into the tape machine and he listens to the telephone conversations through the earphones at the same time the tape machine is recording it. The monitor is instructed explicitly that once monitoring has commenced every conversation is to be overheard and recorded in its entirety. In addition to listening to the intercepted conversations, the monitor also prepares a daily log of each day’s interceptions. This log when completed discloses whether a call is incoming or outgoing, the time of the call, the telephone numbers of outgoing calls, a brief synopsis of the contents of each call, the numerical reading of the mechanical counter on the tape machine at the time each call terminated, and a designation as to whether the conversation was “hon-pertinent” in the opinion of the monitor. Each daily log also indicates the time at -which monitoring was begun and completed for the day. When monitoring is completed for the day the monitor removes the reel and seals the tape for transmittal to the Electronic Surveillance Unit at New Jersey State Police Division Headquarters in West Trenton, New Jersey.

Stier stated further that a detective working under a superior officer is primarily responsible for all phases of a particular investigation including the wiretap. Detectives assigned in these cases have received special training in organized crime and illegal gambling operations. Additionally, a lawyer who is a Deputy Attorney General assists the investigating detective and' his superior officer in the preparation of wiretap applications and affidavits and actively participates in policy decisions connected with the investigation. These three individuals consult together daily during the course of a wiretap with a view toward evaluating the quality of the information obtained through the wiretap as well as other investigative sources. The logs for each day’s conversations are reviewed. According to Stier, a policy to be followed in these daily reviews is to determine the hours during which there is the greatest likelihood that the subject telephone will be used for illegal activity; it is thus hoped that monitoring can be undertaken during the time of day when the incidence of incriminatory or evidentiary conversations will be highest. It was contended that this review satisfied the requirements of N. J. S. A. 2A:156A-12(f).

As noted, the critical terms of N. J. S. A. 2A:156A-12(f) are that “the interception of such communications not otherwise subject to interception” under the Wiretap Act be minimized or eliminated. Reference must be made to section 8 of the act which delineates those communications which may be subject to interception. As pertinent to these cases they are communications which would “provide evidence of the commission of the offense of * * * gambling * * * or any conspiracy to commit [such offense] * * * or which may provide evidence aiding in the apprehension of the perpetrator of * * * [such offense].” N. J. S. A. 2A:156A-8. The original orders and renewal orders authorizing wiretapping in all three cases herein included the language required by section 12(f). An example is the order entered in the Ptakowski case which provided, in pertinent part, that “said interception will * * * be conducted in such a way as to minimize or eliminate the interception of communications other than the type described hereinabove.” The “type [of communications] described hereinabove” according to the order referred to “an unknown male and other unknown persons [who] are engaging over a period of time as part of a continuing criminal activity in, and are committing, have committed and are about to commit the offenses of bookmaking, N. J. S. 2A :112-3, conspiracy, N. J. S. 2A :98-1 and 2, and lottery, N. J. S. 2A:121-3; [and] communications evidentiary of such offenses will be obtained through the interception applied for * * The communications thus described in the orders were ones which clearly are subject to interception under the Wiretap Act. The question, therefore, is whether communications not so described were intercepted by the State Police and whether, under the language of section 12(f) of the act and the implementing orders, the interceptions must be deemed unlawful.

In the construction of legislation, words and phrases are normally given their generally accepted meaning or common significance. N. J. S. A. 1:1-1; Lane v. Holderman, 23 N. J. 304 (1957). Among the common meanings ascribed to “eliminate” are to remove, expel, exclude, leave out of consideration, or to ignore. 1 Webster, New International Dictionary of the English Language 832 (2d ed. unabridged 1956). “Minimize” has been construed as meaning to make as slight as possible or to reduce to the smallest possible amount or degree. Cf. People v. Kiser, 112 Cal. App. 2d Supp. 903, 245 P. 2d 1125 (App. Dep’t Super. Ct. 1952); Ex parte Trafton, 160 Tex. Cr. R. 407, 271 S. W. 2d 814 (Ct. Crim. App. 1953). So understood, it would appear to be the intent of the Legislature expressed by N. J. S. A. 2A:156A-12(f) that the wiretapping of telephone calls in the context of a gambling investigation should be undertaken so that “communications not otherwise subject to interception,” i. e., communications which do not directly or indirectly pertain to gambling activities or to persons engaged in gambling or which would not be helpful in securing the arrests of such persons, either be excluded entirely from the interception or in the alternative be included only to the slightest degree or smallest extent possible.

Defendants contend that the practice of the State Police to monitor and record every conversation occurring during the hours when a wiretap is conducted necessarily results in the acquisition of communications which would not be authorized by the act to be intercepted. According to the logs compiled during the electronic surveillance in the Molinaro case, approximately 45% of the total calls monitored were characterized as “n/p” or nonpertinent. (The State concedes only that approximately 31% of the total communications intercepted were characterized as nonpertinent by the intercepting officers.) In the Ptakowski case only 16 out of a total of 594 conversations were noted as “n/p.” In the De Pasque case some 58 of approximately 1296 communications were characterized as being nonpertinent. Judging from the numerical count as noted in the logs for these two cases all “n/p” calls with few exceptions were brief. The characterization of a call as being “n/p” or nonpertinent reflects merely the subjective judgment of the monitor as to the quality of the call. It does not therefore demonstrate conclusively that such a communication was nonevidentiary or not a proper subject for lawful interception.

Conversations were played to underscore the point that the State Police procedure did in fact result in the inclusion of nonsubject communications in the interceptions. Thus, in the Molinaro case there were representative calls which clearly did not in any way pertain to criminal activities.. There were many lengthy conversations between children in which they exhibited typical youthful interest in shopping, clothes, fashions, hair styles, gifts, parties, social events, family outings, games, sports, friends, classmates, teachers, homework, school situations, religious school and music lessons. In other instances adult females discussed prosaic subjects such as draperies, getting their hair done, buying clothes, their children’s problems at school, food and cooking, bingo, relatives, racial attitudes and church membership. In contrast, in the Ptakowski case there were few if any communications brought to the court’s attention which could clearly or unequivocally be regarded as unrelated to criminal matters notwithstanding a “nonpertinent” designation; and those which might be so viewed were brief conversations engaged in by persons who were prime suspects. In the De Pasque case there were several short conversations of a personal and noncriminal nature, but these involved mostly the prime criminal suspect. Prom this sampling it would appear that the number and type of nonsubject or nonevidentiary calls that will in fact be intercepted as a result of a procedure to overhear and record every communication during a wiretap will depend upon the particular circumstances and will vary from investigation to investigation. Upon these motions, however, the contention is sufficiently founded that the methodic practice of the New Jersey State Police to record every conversation uttered in the course of an interception without regard to its investigative quality will usually result in the interception of some conversations which are not evidentiary or meaningful to the criminal investigation.

Section 12(f) of the Wiretap Act in crystal terms prohibits the purposeful interception of nonsubject communications. There is naught in the history of this legislation which would induce a contrary interpretation. The act, as pointed out in previous decisions (State v. Sidoti, 116 N. J. Super. 70 (Law Div. 1971) and State v. Christy, 112 N. J. Super. 48 (Law Div. 1970)), was designed to meet the minimum requirements of Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U. S. C. § 2510 et seq. It also incorporated certain provisions of a model state statute. In many ways it is more stringent than its forebears. State v. Sidoti, supra. The comparable federal provision treating nonsubject communications enjoins that their interception be “minimized,” 18 U. S. C. § 2518(5); it does not prescribe that such communications be “eliminated.” The model state statute is stricter than the Federal Omnibus Act in that it proposed a restriction upon the interception of nonsubject communications substantially similar to N. J. S. A. 2A:156A-12(f). Blakey and Hancock, “A Proposed Electronic Surveillance Control Act,” 43 Notre Dame Lawyer 657, 674 (1968). No other state which has authorized electronic surveillance imposes the stringent New Jersey requirement that the interception of nonsubject communications be either eliminated or alternatively minimized in the conduct of a wiretap.

In the adoption of the New Jersey Wiretapping and Electronic Surveillance Control Act, the New Jersey Legislature attempted to be scrupulous about the protections which it fashioned for individual privacy. It adopted a broad definition of what constituted a private communication entitled to legislative and judicial care N. J. S. A. 2A:156A-2(b). The Senate Committee conceived that the proposed act was strictly limited to prevent abuses by subjecting official action to tight court supervision and control. Senate Committee on Law, Public Safety and Defense, “Report on Senate No. 897 Electronic Surveillance 4-5” (Oct. 29, 1968).

The concern for preserving individual privacy from untoward electronic intrusion, reflected in decisions of the United States Supreme Court, Berger v. New York, 388 U. S. 41, 87 S. Ct. 1873, 18 L. Ed. 2d 1040 (1967), and Katz v. United States, 389 U. S. 347, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967), was shared by the New Jersey Legislature. State v. Sidoti, supra, 116 N. J. Super. at 80. In Berger v. New York, the United States Supreme Court declared unconstitutional a New York statute under which an electronic surveillance through the installation of a listening device in an attorney’s office had been authorized. The Supreme Court considered as the signal vice of the electronic surveillance therein authorized its failure in any way to prune from the interception communications which were in no way connected with the subject of the investigation. There was no provision in the state statute, no judicial directive in the authorizing order, and no discretion voluntarily exercised by executing officers to exclude unrelated communications from the electronic surveillance. As a result the court noted that the “conversations of any and all persons coming into the area covered by the device will be seized indiscriminately and without regard to their connection with the crime under investigation.” 388 U. S. at 59, 87 S. Ct. at 1883-1884, 18 L. Ed. 2d at 1052 (emphasis added).

In Katz v. United States, supra, federal agents had installed a listening device covering a public telephone. The resultant evidence was suppressed because of the absence of prior -judicial sanction. The Supreme Court nevertheless approved the sedulous manner in which the executing officers eliminated and avoided overhearing any communications not pertaining to the gambling investigation. The agents “took great care to overhear only the conversations of the petitioner himself” and “[o]n the single occasion when the statements of another person were inadvertently intercepted, the agents refrained from listening to them.” 389 U. S. at 354, 355, 88 S. Ct. at 512-513, 19 L. Ed. 2d at 583-584 (emphasis added) Cf. Osborn v. United States, 385 U. S. 323, 87 S. Ct. 429, 17 L. Ed. 2d 394 (1966).

Other cases have recognized that an electronic surveillance must be undertaken in a manner reasonably calculated to exclude communications other than those necessary to further the objects of the criminal investigation. In United States v. Escandar, 319 F. Supp. 295 (D. S. D. Fla. 1970), for example, the court upheld an electronic surveillance involving a public telephone located in the lobby of the apartment building in which the suspect lived. The wiretap order itself provided that interception be undertaken only when the suspect was in the building and only when it was determined by “voice recognition” that he was actually using the telephone. 319 F. Supp. at 297. Compare, State v. Sidoti, supra. In Cross v. State 225 Ga. 760, 171 S. E. 2d 507 (1969), it was held that the failure of the order .and renewal order authorizing a wiretap of a defendant’s telephone line to conform to the federal requirements of 18 U. S. C. § 2518(4) (e) and § 2518(5) and to require, among other restrictions, that the surveillance be conducted in such a way as to minimize the recording of communications not otherwise subject to interception, rendered evidence obtained as a result thereof unlawful. In United States v. Scott, 331 F. Supp. 233 (D. D. C. 1971) the question was whether the limiting provision of 18 U. S. C. § 2518(5) provided in the order was followed by the monitoring agents in a narcotics investigation. The supervising agent testified that he understood the order to restrict the interception to conversations relating to narcotics. The record revealed, however, that virtually all conversations were overheard and recorded; approximately 60% of the calls intercepted were completely unrelated to narcotics and certain monitored conversations could not possibly have involved drugs. The court, in holding that the interceptions thus undertaken were unlawful, noted that “[t]he record is devoid of any attempt, no matter how slight, to minimize the interception of unauthorized calls.” (331 F. Supp. at 247).

The State contends that the statute should not be construed to require the exclusion of any communication during the course of an interception, and that once the monitoring is initiated every single communication should be recorded. It was argued that to exclude any conversations even though not otherwise subject to interception might be considered an alteration or editing of a recording in violation of N. J. S. A. 2A:156A-14. If, however, section 12(f) demands that such conversations not be intercepted, their exclusion or reduction in conformity to that requirement could not be regarded as an alteration or editing of the recording in violation of section 14. Section 14 prohibits the adulteration of properly intercepted conversations after they have been recorded.

The major reason assigned for the State’s policjr was a desire not to leave the monitoring officer with the ultimate decision as to what would be recorded. Stier gave illustrations of possible conversations which would make such decisions difficult. With respect to the conversations actually overheard and recorded in the Molinaro case, however, the detective in charge of the investigation and the wiretap was aware that there wore many lengthy personal nonevidentiary calls and that there was no difficulty in discerning when these calls were in progress or in recognizing these conversations as being remote to the criminal activities under investigation.

Moreover, the procedure of the State Police to overhear and record every telephone conversation in its entirety once the daily monitoring has commenced, is not followed uniformly by other law enforcement bodies. Stier acknowledged this. The Essex County Prosecutor, for example, instructs its officers to eliminate or minimize the recording of noncriminal calls. The monitor makes a judgment when he hears a conversation as to whether or not that conversation is incriminatory in nature or needful in terms of the investigation. If he concludes that it is not, he is instructed to turn off the recording part of the machine and not listen to the conversation. The efforts of the Essex County Prosecutor to garner evidence and prosecute crime have not been frustrated by adhering to the stricture of N. J. S. A. 2A :156A-12(f).

It goes too far to argue that police officers are incapable of shouldering a discretion which entails the recognition of the criminal investigative value of a. telephone call. In order to conduct a wiretap or electronic surveillance under the New Jersey Wiretap Act officers must be specially trained. N. J. S. A. 2A:156A-10. Additionally, in these gambling cases the detectives were schooled in organized crime and illegal gambling operations. Moreover, the act invests executing officers with vital discretion in other areas. Under N. J. S. A. 2A:156A-12(f) the authorized interception must begin and terminate as soon as practicable; the interception must be terminated when in the judgment of the executing officers the wiretap is no longer necessary under the circumstances. See State v. Christy, supra, 112 N. J. Super. at 59, 76, 77. In effect, the exercise of discretion in executing a wiretap is inescapable. As Stier stated, the monitoring officer must pay continuous critical attention to the content and quality of each communication during a wiretap and be prepared to act upon this information. The officer also makes a contemporaneous working record or log of each communication that is overheard; he decodes the telephone numbers of outgoing calls; he must discern whether particular conversations are “nonpertinent” and which are particularly important to the investigation and require further investigative efforts; he must be alert to new or unusual developments which might extend the investigation or take it into other channels.

Section 8 of the Wiretap Act defines in a manner generous to law enforcement goals those communications which lawfully may be made the subject of electronic surveillance. Communications which provide evidence of the commission of various enumerated offenses can be the target of a surveillance. Additionally, communications relating to offenses other than those initially suspected and authorized may also be intercepted and utilized by law enforcement officers. N. J. S. A. 2A:156A-18; accord, United States v. Cox, 449 F. 2d 679 (10 Cir. 1971). Section 8 further permits seizure of communications helpful in apprehending persons committing crimes. Thus, ostensibly noncriminal conversations (such as those hypothesized by Stier), which circumstantially tend to establish the identity of unknown suspects, or map the daily routines of the criminal activists, or provide data for further physical surveillances or investigated forays, or furnish information needed in the, preparation and execution of search and arrest warrants, would be within the ambit of an electronic surveillance. Ruses or subterfuges to conceal incriminating conversations, may be realistically countered. If it were suspected that incriminatory matters were being masked by jargon or codes or covertly interspersed with innocuous talk, the overhearing and recording of such conversations in their entirety might bo justified under the circumstances.

A policeman is expected and required to exercise a wide and varied discretion in the performance of his duties. See Davis, Discretionary Justice: A Preliminary Inquiry 222-224 (1969); The President’s Commission on Law Enforcement and Administration of Justice, “Task Force Report: The Police,” 13-35 (1967). Examples are myriad. A police officer must use good sense in deciding when and how to investigate a crime or when to arrest a suspect. E. g., State v. Braxton, 111 N. J. Super. 191 (App. Div. 1970), rev’d 57 N. J. 286 (1970); State v. Bell, 89 N. J. Super. 437 (App. Div. 1965); State v. Hope, 85 N. J. Super. 551 (App. Div. 1964). The use of force in effectuating arrest requires sound judgment. E. g., State v. Mulvihill, 57 N. J. 151 (1970); State v. Washington, 57 N. J. 160 (1970); State v. Fair, 45 N. J. 77 (1965); State v. Owens, 102 N. J. Super. 187 (App. Div. 1968), mod. 54 N. J. 153 (1969), cert. den. 396 U. S. 1021, 90 S. Ct. 593, 24 L. Ed. 2d 514 (1970) . The search and seizure of evidence of crime in the absence of a judicial warrant is a highly discretionary act. E. g., State v. Cox. 114 N. J. Super. 556 (App. Div. 1971), certif. den. 58 N. J. 93 (1971); State v. Boone, 114 N J. Super. 521 (App. Div. 1971); State v. Dennis, 113 N. J. Super. 292 (App. Div. 1971), certif. den. 58 N. J. 337 (1971) . Even when armed with a search warrant, officers must be discriminate in seizing that which is permissible. E. g., Mesmer v. United States, 405 F. 2d 316 (10 Cir. 1969); United States v. Escandar, supra; United States v. Harrison, 319 F. Supp. 888 (D. N. J. 1970); State v. Seefeldt, 51 N. J. 472, 490 (1968).

It should not be thought a remarkable attribute of an officer’s authority in conducting an interception under the Wiretap Act that he be discriminate, discerning and sensitive to communications which do not in any way relate to criminal activities or would not assist in the apprehension of criminal suspects. If it is manifest to the officer that he is attending such a conversation, it would not seem unreasonable that he desist from further eavesdropping. The New Jersey Legislature has recognized the competing values of individual privacy and the need of law enforcement personnel to utilize electronic surveillance in dealing with crime. It has struck the balance by mandating that telephone conversations shall not' be overheard or recorded if and when it becomes clear in tbe mind of the executing officer exercising reasonable judgment under all the circumstances that such conversations do not in any way pertain to the objects of the criminal investigation. This is what N. J. S. A. 2A:156A-12(f) means. The New Jersey State Police intentionally opted to defy this requirement by purposefully including in their interceptions every conversation uttered regardless of its investigative worth. It is patent that they have violated the command of the statute.

N. J. S. A. 2A:156A-21 provides that a motion to suppress may be brought where it is contended that an interception was conducted in violation of the statute or the order authorizing the interception. In the Ptakowski and De Pasque cases, while the State Police procedure to record every conversation regardless of content was applied, this did not in fact result in the acquisition of any substantial number of nonsubject communications. Virtually all of the conversations in the Ptakowski case and almost all of those in the De Pasque case were criminal. By sheer coincidence the evil which section 12(f) was designed to deter did not actually occur. The impermissible invasion of privacy in these eases was negligible. It should follow therefore that the evidence of crime derived from the interceptions undertaken in these cases under the Wiretap Act not be suppressed. Cf. United States v. Langford, 303 F. Supp. 1387 (D. Minn. 1969); United States v. Castle, 213 F. Supp. 56 (D. D. C. 1962), aff'd 120 U. S. App. D. C. 398, 347 F. 2d 492 (D. C. Cir. 1964), cert. den. 381 U. S. 929, 85 S. Ct. 1568, 14 L. Ed. 2d 687 (1965); State v. Rulli, 116 N. J. Super. 120 (App. Div. 1971).

The Molinaro case is in a different posture. The State Police practice to record every conversation indiscriminately did in fact result in the acquisition of a substantial number of nonsubject calls. The evil to be forestalled by section 12(f) was not fortuitously avoided, as in the Ptakowski and De Pasque cases. The impermissible invasion of privacy was extensive. The Molinaro interceptions are therefore clearly unlawful.

Where evidence has been seized unlawfully, suppression of that evidence at trial ordinarily follows. Mapp v. Ohio, 367 U. S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081 (1961); Alderman v. United States, 394 U. S. 165, 89 S. Ct. 961, 22 L. Ed. 2d 176 (1969), reh. den. Ivanov v. United States, 394 U. S. 939, 89 S. Ct. 1177, 22 L. Ed. 2d 475 (1969), app. after remand United States v. Alderisio, 424 F. 2d 20 (10 Cir. 1970), on remand United States v. Butenko, 318 F. Supp. 66 (D. N. J. 1970). This doctrine of suppression is a court-authored remedy. State v. Zito, 54 N. J. 206 (1969); Farley v. $168,400.97, 55 N. J. 31 (1969). Where, however, evidence stems from an unlawful wiretap, suppression of such evidence is the remedy selected specifically by the Legislature, viz:

If tlie motion is granted, the contents of the intercepted wire or oral communication, or evidence derived therefrom, shall not he received in evidence in the trial, hearing or proceeding. [IV. J. S. A. 2A :156A-21]

With respect to the appropriate sanction for an unlawful electronic surveillance, the New Jersey Act follows the model state statute. Blakey and Hancock, “A Proposed Electronic Surveillance Control Act,” 43 Notre Dame Lawyer, supra at 679-680. The Federal Omnibus Act is comparable, 18 U. S. C. § 2515. The statutes of other states which have permitted official electronic surveillance are also uniform in requiring suppression of evidence as the penalty for illegal wiretapping. Thus, all jurisdictions which have authorized official electronic surveillance, including New Jersey, have imposed as the onus for an illegal wiretap the exclusion of evidence derived therefrom in any trial. In United States v. Scott, supra, the court held that the failure of the surveilling agents to abide by the crucial command of the authorizing order to “minimize the interception of communications not otherwise subject to interception,” required the suppression of evidence. In so doing the court stated that if it “were to allow the Government agents to indiscriminately intercept every conversation made and to continue monitoring such calls when it becomes clear that they are not related to the ‘authorized objectives’ of the wiretap and in violation of the limiting provisions of the order such order would become meaningless verbiage and the protections to the right of privacy outlined in Berger and Katz would be illusory.” (331 F. Supp. at 248).

Arguably, the judiciary in a different setting could abandon or modify the exclusionary doctrine since this rule originated with the courts. Cf. State v. Zito, supra. It has been suggested, however, that it is also within the power of a legislative body to adopt or negate a rule of suppression. See Wolf v. Colorado, 338 U. S. 25, 33, 69 S. Ct. 1359, 1364, 93 L. Ed. 1782, 1788 (1948). With respect to evidence derived from an unlawful electronic surveillance, the New Jesey Legislature by N. J. S. A. 2A:156A-21 has instituted such a rule.

Eor the reasons expressed herein, the motions in the Ptakowski and Do Pasque cases are denied; the motions in the Molinaro case are granted.

       Since the co-author of the model state statute is credited in large measure with the drafting of the American Bar Association’s Project on Minimum. Standards for Criminal Justice, “Standards Relating to Electronic Surveillance” (June 1968), it is of passing interest to note the ABA’s proposal with respect to nonsubject communications. The ABA provided that such communications be eliminated or minimized, but this restriction was confined to a surveillance over “public facilities.” While the terminology of section 12(f) of the New Jersey Statute is identical to the language of the ABA proposal, it goes further than the ABA proposal in that it imposes this restriction upon “every order” for an interception, and not merely for an interception applicable to a public telephone.

       No state requires such nonsubject communications be “eliminated.” Five states require that they be “minimized.” See Connecticut P. A. No. 68 (1971) ; Fla. Stat. Ann. § 934.09(5) (1968) ; Minn. Stat. Ann. §626A.06(4) (h) (1969) ; N. H. Rev. Stat. ch. 570-A :9 (1969) ; N. Y. Criminal Procedure Law §700.30 (1971). Colorado requires that interceptions be conducted in such a way as to minimize permissible interceptions. Col. Rev. Stat. 1963, 40-4-30(6) (1969). Three other states which authorize electronic surveillance do not require that the interception of nonsubjeet conversations be minimized. See Arizona Rev. Stat. §13-1051 (1968) ; Mass. Ann. Law ch. 272 §99 (1968); Ga. Code Ann. §26-3004 (1967).

       The ABA, Project etc., “Standards Relating to Electronic Surveillance,” supra at 113-114 proposed a variant solution to ameliorate the exclusionary rule, viz.:
      § 2.3 Evidentiary sanctions.

        (d) Substantial rights; excusable error.
      An error not affecting substantial rights in an application, authorization, or overhearing or recording of the other wise authorized overhearing or recording of wire or oral communications should not be grounds for the suppression of such communications or evidence derived therefrom. Excusable error made in the process of securing authorization for the overhearing and recording of such communications should be subject to cure by judicial ratification.
      It adhered, however, to the rule of total exclusion when this particular subsection was deleted from its final draft. Ibid., (Supplement March 1971) 8-11.


author: Duffy, J. C. C.

text:
    STATE OF NEW JERSEY, PLAINTIFF, v. JANET COREY, DEFENDANT. IN THE MATTER OF THE CONTEMPT OF ESTHER S. FRANKEL, AN ATTORNEY AT LAW OF THE STATE OF NEW JERSEY.
    Passaic County Court Law Division
    Decided November 29, 1971.

      Mr. Leopold Franhel attorney for appellant Esther S. Erankel.

      Mr. Sherman T. Brewer, Jr., Deputy Attorney General, for respondent (Mr. George F. Eugler, Jr., Attorney General of New Jersey, attorney; Mr. Elias Abelson, Assistant Attorney General of counsel; Mr. Sherman T. Brewer, Jr. Deputy Attorney General, on the brief).
   Duffy, J. C. C.

Esther S. Erankel, an attorney at law of New Jersey, appeals pursuant to N. J. S. A. 2A:10-1(c) and R. 1:10-1 from an adjudication of contempt of court entered July 6, 1971 in the Paterson Municipal Court. She was fined $50, payment of which was stayed by the municipal judge pending the outcome of an appeal.

On July 6, 1971 one Janet Corey was charged with a violation of N. J. S. A. 2A:170-4. Upon interrogation the court was unable to elicit any information from her and thereupon assigned appellant as counsel. Appellant refused to accept the assignment and expressly waived the opportunity for a 24-hour cooling-off period to reconsider her position, as directed in In re Logan, Jr., 52 N. J. 475 (1968). She was thereupon adjudged guilty of contempt of court and fined $50.

Succinctly stated, the issue on this de novo appeal on the transcript is “whether the refusal of an attorney to accept appointment as counsel for an indigent accused, defendant or appellant, * * * constitutes contempt of court.” Annotation, “Attorney’s Refusal To Accept Appointment To Defend Indigent, Or To Proceed In Such Defense, As Contempt.” 36 A. L. R. 3d 1221 (1971).

On May 10, 1971, in the cases of Rodriguez v. Rosenblatt and State v. Conley, 58 N. J. 281 (1971), the Supreme Court decided that,

Indeed, whenever the particular nature of the charge is such that imprisonment in fact or other consequence of magnitude is actually threatened or is a likelihood on conviction, the indigent defendant should have counsel assigned to him unless he chooses to proceed pro se with his plea of guilty or his defense at trial. In those rare instances where there is a plea or a trial proceeds without any tender or assignment of counsel and actual imprisonment or other consequence of magnitude looms appropriate to the municipal judge despite the predications to the contrary, the defendant should be given the option of starting anew with suitable safeguards including where necessary, [sic] trial before a substituted municipal judge, [at 295]

On the basis of the above decision an administrative order was issued to all assignment and municipal court judges on May 12, 1971 concerning the assignment of counsel without compensation in municipal court for indigent defendants when the nature of the charge falls within the guidelines of the Rodriguez and Gonley case.

In short, the order called for establishment of a list of attorneys for each municipal court, from which counsel could be assigned by the judges as necessity dictated. Until the list was prepared judges could assign counsel on an ad hoc basis. Furthermore, the order observed that no provision presently exists in the opinion, court rules, or statutes to authorize compensation for assigned counsel.

N. J. S. A. 2A:10 — 1 directs that,

The power of any court of this state to punish for contempt shall not be construed to extend to any case except the * * * (c) Disobedience or resistance by any court officer, or by any party, juror, witness or any person whatsoever to any lawful writ, process, judgment, order, or command of the court.

Appellant alleges that the conviction for contempt was inappropriate because the refusal to accept the assignment did not result in an obstruction of justice.

In Powell v. Alabama, 287 U. S. 45, 53 S. Ct. 55, 77 L. Ed. 158 (1932), a case involving the right to counsel, the court said (at 73, 53 S. Ct. at 65), “Attorneys are officers of the court, and are bound to render service when required by such an appointment.”

The act herein alleged to constitute contempt was the deliberate refusal of Esther Frankel to accept a defense appointment as directed by a lawful court order.

A contempt of court has been defined as a disobedience to the court by acting in opposition to its authority, justice and dignity. Generally speaking, he w-hose conduct tends to bring the authority and administration of the law into disrepute or disregard, interferes with or prejudices parties during litigation, or otherwise tends to impede, embarrass, or obstruct the court in the discharge of its duties is guilty of contempt. [In re Bozorth, 38 N. J. Super. 184, 188 (Ch. Div. 1955)]

Likewise, any willful violation of a court order may itself be contempt. State v. Cary, 49 N. J. 343 (1967).

Unquestionably, Esther Frankel deliberately refused to accept assignment, albeit with good motive, thereby disrupt-ting the court procedure. Her refusal obstructed justice in such a way that the court was prohibited from disposing of State v. Janet Corey with expedience and fairness to all concerned. One can only estimate the frustration of the Supreme Court’s will as enunciated in Rodriguez and Conley if all attorneys could deliberately refuse an assignment.

Doubt of the validity of an order is no justification for noncompliance unless the court issuing it was in fact without jurisdiction. Salmon v. Salmon, 88 N. J. Super. 291 (App. Div. 1965). Resistance in the face of a court order to act as counsel without compensation was not the means to test the validity of the order.

If the person to whom a court order is directed wishes to test its validity before complying with it, the appellate courts are open to him. Otherwise, he must obey it. No other rule is compatible either with the dignity of the courts or the effective prosecution of their business. [Roselle v. MoonaeMe 48 N. J. Super. 17, 25 (App. Div. 1957)]

Rather than refuse assignment and obstruct justice, appellant could, after representing the indigent, raise the issue of compensation by an application to the court, as was done in State v. Rush, 46 N. J. 399 (1966), and State in Interest of Antini, Jr., 53 N. J. 488 (1969).

Notwithstanding appellant’s desire to formulate a “test case,” her motivation does not excuse a deliberate contempt of court. In re Carton, 48 N. J. 9 (1966), an attorney was held in contempt for refusal to obey a court direction to sign a pretrial order. The court said (at 25) that “Good motive of course does not excuse a willful disobedience, but it may be considered in deciding whether a public purpose would be served by a prosecution for contempt.” See also In re Brown, Jr., 50 N. J. 435 (1967).

Next, appellant alleges that the assignment of counsel in municipal court without compensation violates the constitutional rights of an attorney. In particular, she asserts the violation of her First Amendment right to dissent, her Thirteenth Amendment freedom from involuntary servitude, and her Fifth and Fourteenth Amendment prohibitions against taking of property without due process of law or adequate compensation.

In Gideon v. Wainwright, 372 U. S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963), the court found that the Federal Constitution requires the state to furnish counsel to an indigent accused of crime.

The majority of the courts faced with the issue have held that in the absence of statutes, an attorney appointed by the court to represent an indigent accused has no right to compensation by the public, and such denial does not violate any provision of the Federal Constitution. [Annotation, “Right of Attorney Appointed by Court for Indigent Accused to and Court’s Power to Award Compensation by Public. In Absence of Statute or Court Rule,” 21 A. L. R. 3d 819, 821 (1968)]

Since Gideon the constitutional right to counsel has been extended to indigent juveniles when the possibility of commitment exists. In re Gault, 387 U. S. 1, 87 S. Ct. 1428, 18 L. Ed. 2d 527 (1967). Whether a constitutional right to counsel in petty offenses exists has never been decided by the United States Supreme Court or the New Jersey Supreme Court. See In re Garofone, 42 N. J. 244 (1964).

In New Jersey, prior to State v. Bush, supra, attorneys received compensation only in murder cases. N. J. S. A. 2A:163-1. Basing its decision on N. J. S. A. 2A:158-7, the court in Bush held that the bar would no longer absorb the full cost of defending the indigent and directed that reasonable compensation be paid by each county to assigned attorneys. Later, in 1969, the Supreme Court extended compensation to attorneys for indigent juveniles, reasoning that since In re Gault, supra, the obligation to furnish counsel to the indigent juvenile in danger of commitment has become a constitutional and public one, to be covered by the Public Defender. State in Interest of Antini, Jr., supra.

In the case of Rodriguez v. Rosenblatt and State v. Conley, supra, the court found that not as a constitutional right, Tut, as a matter of simple justice, uo indigent defendant should be subjected to a conviction entailing imprisonment in fact or other consequence of magnitude without first having had due and fair opportunity to have counsel assigned without cost.” 58 N. J., at 295.

The identical issues raised herein, alleging a violation of the constitutional rights of a lawyer, were answered in the negative in United States v. Dillon, 346 F. 2d 633 (9 Cir. 1965), and Dolan v. United States, 351 F. 2d 671 (5 Cir. 1965) .

Any right to compensation is purely statutory, and a system of compensation for appointed counsel, in the light of the developing law of the rights of indigents, is a matter for legislative, not judicial treatment. United States v. Dillon, supra. At present there is no statute or court rule in New Jersey which can be cited as authority for directing compensation to attorneys assigned in municipal court. Thus, the attorney must render gratuitous assistance pursuant to his common law obligation and tradition as an officer of the court and as a condition of his license to practice law. State v. Horton, 34 N. J. 518 (1961); State v. Clifton, 247 La. 495, 172 So. 2d 657 (Sup. Ct. 1965); Warner v. Commonwealth, 400 S. W. 2d 209 (Ky. Ct. App. 1966), cert. den. 385 U. S. 858, 87 S. Ct. 108, 17 L. Ed. 2d 85, 1966); Jackson v. State, 413 P. 2d 488 (Alaska Sup. Ct. 1966); Weiner v. Fulton County, 113 Ga. App. 343, 148 S. E. 2d 143 (App. Ct. 1966); Ruckenbrod v. Mullins, 102 Utah 548, 133 P. 2d 325 (Sup. Ct. 1943); Annotation, "Construction of State Statutes Providing for Compensation of Attorney for Services under Appointment by Court in Defending Indigent Accused,” 18 A. L. R. 3d 1074 (1968).

As in the ease of State v. Rush, supra, the duty of gratuitous service in municipal court may become too burdensome for the bar to endure without compensation. In the last paragraph of its opinion the Supreme Court, in State in Interest of Antini, Jr., supra, stated,

With regard to assignments in eases of non-indictable offenses in the local criminal courts, there is no demonstration that presently their burden upon the bar is unreasonable or is likely to become so in the near future. If it should, this court is available to act. [53 N. J. at 495]

Whether the public treasury should now be compelled to compensate attorneys for service in nonindictable offenses cannot now be ascertained, and the sources of such payment should be left to the legislative fact-finding process. See the considerations voiced by the court in Warner v. Commonwealth, supra, 400 S. W. 2d at 211.

After a careful reading of the transcript and consideration of the oral argument and the briefs submitted by both parties, the court finds there was probable cause for the charge and that appellant’s conduct on July 6, 1971 constituted a contempt of court in violation of N. J. S. A. 2A :10 — 1 and R. 1:10 — 1. Therefore, this court is constrained to affirm the judgment of the Paterson Municipal Court.


author: Lane, J. A. D.

text:
    COUNTY OF BERGEN, A BODY POLITIC AND CORPORATE OF THE STATE OF NEW JERSEY, APPELLANT, v. DEPARTMENT OF PUBLIC UTILITIES OF THE STATE OF NEW JERSEY AND WILLIAM E. OZZARD, PRESIDENT OF THE BOARD OF PUBLIC UTILITY COMMISSIONERS, RESPONDENTS. COUNTY OF BERGEN, A BODY POLITIC AND CORPORATE OF THE STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. DEPARTMENT OF PUBLIC UTILITIES OF THE STATE OF NEW JERSEY AND WILLIAM E. OZZARD, PRESIDENT OF THE BOARD OF PUBLIC UTILITY COMMISSIONERS, DEFENDANTS-APPELLANTS.
    Superior Court of New Jersey Appellate Division
    Submitted November 30, 1971

    Decided December 2, 1971.

      Before Judges Kilkenny, Labbecque and Lane.

      Mr. Michael J. Ferrara, Bergen County Counsel for County of Bergen (Mr. James T. Murphy, Assistant Bergen County Counsel, of counsel).

      Mr. Ceorge F. Kugler, Jr., Attorney General, attorney for Department of Public Utilities of the State of New Jersey, and William E. Ozzard, President of the Board of Public Utility Commissioners (Mr. Joseph W. Ferraro, Jr., Deputy Attorney General, of counsel and on the brief).
   The opinion of the court was delivered by

Lane, J. A. D.

These appeals are before us upon leave granted in each ease.

Plaintiff Bergen County appeals from a determination by the Board of Public Utility Commissioners denying its motion to dismiss for lack of jurisdiction. Defendants Department of Public Utilities and William E. Ozzard, president of the Board of Public Utility Commissioners, appeal from a Law Division order denying a motion by the Board to dissolve temporary restraints placed on the Board of Public Utility Commissioners.

Plaintiff operates sanitary land fill disposal sites in Tea-neck and Lyndhurst, both located in Bergen County. The use of the disposal sites is limited to: Bergen County municipalities, private scavengers contracted by Bergen County municipalities, private scavengers contracted by Bergen County residents, and Bergen County residents.

On January 6, 1971 the Bergen County Board of Chosen Freeholders announced an increase in rates for the use of the County’s disposal sites. On January 8, 1971 the Board of Public Utility Commissioners issued an order directing Bergen County to suspend its rate increase and to appear before the Board on January 21, 1971 to show cause why “such increase should not be permanently suspended or why said County of Bergen should not comply with the Board’s Rule of Practice 14:6-16 before increased rates, for disposal of solid waste at the land fill sites in Bergen County, be permitted,” and to show that the proposed increase was reasonable.

On January 21, 1971 plaintiff filed a complaint in the Law Division of the Superior Court seeking to restrain the Board from suspending the increased rates, from conducting the hearing on the reasonableness of the rates, and from ordering the County to show cause why the rates should not be permanently suspended or why the County should not comply with the Board’s Rule of Practice 14:6-16 before the increase was permitted. On February 3, 1971 the Law Division issued an order temporarily restraining the suspension of the rate increase until the Board made findings of fact and conclusions of law on the jurisdictional issue and until all time for appeal had expired. Plaintiff was ordered to hold in escrow the amounts representing the increase in rates.

A hearing was held on the jurisdictional issue and on February 10, 1971 the Board denied the plaintiff’s motion. On February 26, 1971 plaintiff filed a motion for leave to appeal.

Subsequent to the Board’s determination, defendants moved in the Law Division to dissolve the restraints. The motion was denied on March 10, 1971. On March 10 defendants filed a motion for leave to appeal.

A

By the enactment of the Solid Waste Management Act N. J. S. A. 13 :1E-1 et seq., effective May 6, 1970; the Solid Waste Control Act, N. J. S. A. 48:13A-1 et seq., effective November 6, 1970; the County Solid Waste Disposal Financing Law N. J. S. A. 40:66A — 31.1 et seq., effective October 28, 1970, and the Solid Waste Management Authorities Law, N. J. S. A. 40:66A-32 et seq., effective August 16, 1968, the Legislature has set forth a comprehensive scheme for dealing with the problems of solid waste collection and disposal.

The purpose of N. J. S. A. 48:13A-1 et seq. is to provide for an efficient and reasonable solid waste collection, disposal and utilization service by vesting in the Board of Public Utility Commissioners the duty to set forth and enforce standards and rates regulating the economic aspects of such service. N. J. S. A. 48:13A-2. The Board of Public Utility Commissioners is specifically directed to provide for the regulation of the rates of the solid waste industry. N. J. S. A. 48:13A-4.

The purpose of N. J. S. A. 40:66A-31.1 et seq. is to provide for the proper collection, treatment and disposal of solid waste and other refuse on a regional or multi-unit basis. N. J. S. A. 40:66A-31.2. To that end any county coming within the provisions of the act is empowered to “purchase, construct, improve, extend, enlarge or reconstruct garbage disposal facilities within such county either alone ox jointly with any municipality, joint meeting or incinerator authority located within such county * * N. J. S. A. 40:66A-31.4(1). The county may operate, manage and control the solid waste facilities purchased or constructed to supply services to municipalities in accordance with applicable law, rules, regulations or orders. Id.

The powers of a county are restricted to those granted to it by statute. Bergen County v. Port of N. Y. Authority, 32 N. J. 303, 313 (1960). Statutory provisions concerning counties must be liberally construed. Essex County v. Hindenlang, 35 N. J. Super. 479, 486 (App. Div. 1955), app. dism. 24 N. J. 517 (1957); N. J. Const. (1947), Art. IV, § VII, par. 11; N. J. S. A. 40:23-5.6.

Plaintiff argues that its power to regulate the rates for the use of its land fill sites is established by N. J. S. A. 40:66A-31.8, which provides:

After the commencement of operation of solid waste disposal facilities, the county may prescribe and change from time to time rates or rentals to be charged for the use of the services of such facilities. Such rates or rentals being in the nature of use or service charges or annual rental charges, shall be uniform and equitable for the same type and class of use or service of such facilities. Such rates or rentals and types and classes of use and service may be based on such factors as the board of chosen freeholders of the county shall deem proper and equitable.

N. J. S. A. 40:66A-31.5 directs that no county may exercise any of the powers granted by N. J. S. A. 40:66A-31.1 et seq. without first having obtained approval of the State Commissioner of Environmental Protection. Plaintiff has not obtained such approval and therefore may not exercise any powers under N. J. S. A. 40:66A-31.8.

The County argues that it has substantially complied with N. J. S. A. 40:66A-31.5. Even if there had been such compliance and approval had been obtained from the State Commissioner of Environmental Protection, the position of the County would not be improved.

The purpose of N. J. S. A. 40:66A-31.8 was to give authority to counties to charge users of solid waste disposal facilities. Without statutory authority a county would not be able to make such a charge. Cf. Moyant v. Paramus, 30 N. J. 528, 543 (1959) ; Lyon v. Elizabeth, 43 N. J. L. 158, 161 (Sup. Ct. 1881). By N. J. S. A. 48:13A-1 et seq., the Legislature vested in the Public Utility Commission regulatory authority over the rates established by a county where the county is acting as a public utility. There is no indication that the Legislature intended by N. J. S. A. 40:66A-31.8 to exempt counties acting as public utilities from the regulatory powers of the Public Utility Commission.

B

The County argues that it is not a “public utility” within the meaning of Title 48. Title 48 governs public utilities. N. J. S. A. 48:2-l establishes the Department of Public Utilities and a Board of Public Utility Commissioners. N. J. S. A. 48 :2-13 defines the general jurisdiction of the Board. It directs that the Board “shall have general supervision and regulation of and jurisdiction and control over all public utilities * * “Public utility” is defined in part as:

* •:= « every individual, co-partnership, association, corporation or joint stock company * * * that now or hereafter may own, operate, manage or control within this State any * * * solid -waste collection, solid waste disposal * * * system, plant or equipment for public use, under privileges granted or hereafter to be granted by this State or by any political subdivision thereof.

N. J. S. A. 48:13A-4 directs that:

The Board of Public Utility Commissioners shall, after hearing, by order in writing, make appropriate rules, regulations and administrative orders for the regulation of rates and public utility aspects of the solid waste collection industry and the solid waste disposal industry. [Emphasis added.]

The Board of Public Utility Commissioners was intended by the Legislature to have the widest range of regulatory power over public utilities. The provisions of Title 48 are to be construed liberally. Deptford Tp. v. Woodbury Ter. Sewerage Corp., 54 N. J. 418, 424 (1969); In re Public Service Electric and Gas Co., 35 N. J. 358, 371 (1961); State v. New York Central R. Co., 52 N. J. Super. 206, 208 (Ch. Div. 1958). The powers delegated by the Legislature to the Board are to be read broadly. Any exception must be carefully circumscribed. Deptford Tp. v. Woodbury Ter. Sewerage Corp., supra, 54 N. J. at 426. Title 48 reflects a legislative recognition that “public interest in proper regulation of public utilities transcends municipal or county lines, and that a centralized control must be entrusted to an agency whose continually developing expertise will assure uniformly safe, proper and adequate service by utilities throughout the State.” In re Public Service Electric and Gas Co., supra, 35 N. J. at 371. See also Ringlieb v. Parsippany-Troy Hills Tp., 59 N. J. 348 (1971).

Plaintiff relies on In re Glen Rock, 25 N. J. 241 (1957). In that case a municipality supplying water beyond its own boundaries was found not to be a “corporation” within the meaning of N. J. S. A. 48:2-13. The court held that the Board of Public Utility Commissioners did not have jurisdiction over the municipality’s water rates. The viability of this case has been eroded by In re Complaint by Morris Tp., 49 N. J. 194 (1967).

In Morris Tp. a municipality supplying water to areas beyond its municipal boundaries was held to be subject to the rate-making jurisdiction of the Board. Justice Erancis said:

In our judgment a strong case exists for broad control over tbe rates of a municipal utility where service is furnished beyond the corporate limits. A municipality which sells water outside its own boundaries engages in a private or proprietary enterprise. If the users in the adjoining municipality were being served by a privately owned utility, obviously the rates would be subject to regulation by the Board of Public Utility Commissioners. Logic compels the conclusion that the Legislature would not intentionally protect such consumers against arbitrary or unreasonable charges of a private utility and leave them without equal protection against discriminatory rates of a municipal utility. ' * * [49 N. J. at 205]

While the court carefully limited its holding to municipalities supplying water utilities beyond its boundaries pursuant to N. J. S. A. 40:62-49(f), we think the same logic applies in this ease. Plaintiff services not only municipalities within its boundaries, but private scavengers and private residents. If the private scavengers and residents were to utilize a “public utility” land fill site owned and operated by other than a political subdivision of the State, the rates charged them would be subject to regulation by the Board. The fact that a county owned land fill site is used should not deprive the public of the protection provided by the Board’s regulatory powers. To hold otherwise would undermine the Board's ability to ful fill its duty as charged by the Legislature of “sotting forth and enforcing standards and rates for regulating economic aspects of solid waste collection, disposal and utilization service * * N. J. S. A. 48 :13A-2. Under the circumstances here, we hold that the County, operating and managing its land fill sites, is a “public utility” subject to the rate regulatory powers of the Board.

Our view is supported by the recent Supreme Court holding, Ringlieb v. Parsippany-Troy Hills Tp., supra, that the Legislature has preempted the field of solid waste, disposal and management by the enactment of N. J. S. A. 48:13A-1 et seq. and N. J. S. A. 13 :1E-1 et seq.

C

On appeal from the denial of the motion to dissolve the restraints imposed on it, the Board argues that it has the power to suspend the proposed rate increases pending a hearing before it.

N. J. S. A. 48 :2-21 governs rates generally. N. J. S. A. 48:2-21(d) provides in part:

The board, pending such hearing and determination, may order the suspension of the increase, change or alteration until the board shall have approved the same, not exceeding 4 months.

The County argues that the Board does not have the power to suspend because of N. J. S. A. 48:13A-7. That provision states:

a. The board, upon complaint or its own initiative, after hearing, may direct any person engaging in the solid waste collection business or the solid waste disposal business to furnish proof that the charges or rates to be received for such service do not exceed just and reasonable rates or charges for such service.
b. Should the board find that the rates or charges are excessive then it may order the person charging such excessive rates or charges to make an adjustment in the contract to a sum which shall result in just and reasonable rates or charges.

We do not read this statute to be a limitation upon the powers of the Board. N. J. S. A. 48:13A-13 directs:

Nothing contained herein shall be construed to be in derogation of any other right, duty, power or authority granted to the board by the provisions of Title 48 of the Revised Statutes.

Since we have held that under the circumstances of this case the County is a “public utility” within the meaning of Title 48, the Board has the power to suspend the announced increases.

The Board further argues that the Law Division did not have jurisdiction to award the relief sought since plaintiff should have applied for interim relief to the Appellate Division in its appeal from the order of the Board. We find it unnecessary to consider this issue.

The determination of the Board of Public Utility Commissioners is affirmed. The order of the Law Division is reversed and the temporary restraints are dissolved. The County is directed to rebate the amounts collected held in the escrow account.

The matter is remanded to the Board for further proceedings.