author: Collester, J. A. D.

text:
    IRVAL REALTY, INC., ET AL., PLAINTIFFS-RESPONDENTS, v. BOARD OF PUBLIC UTILITY COMMISSIONERS, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued March 22, 1971
    Decided June 28, 1971.

      Before Judges Sullivan, Collester and Labrecque.

      Mr. Richard M. Pisacane, Deputy Attorney General, argued the cause for appellant (Mr. George F. Kugler, Jr., Attorney-General of New Jersey, attorney).

      Mr. Jay H. Greenblabt argued the cause for respondents (Messrs. Greenblatt & Greenblatt, attorneys).
   The opinion of the court was. delivered by

Collester, J. A. D.

This is an appeal by defendant Board of Public Utility Commissioners (Board) from a summary judgment entered in the- Superior Court in favor of plaintiffs, ordering defendant to produce and permit inspection and copying of accident reports made by the Board and those filed with the Board by the South Jersey Gas Company relating to explosions that occurred on plaintiffs’ properties which were serviced by the public utility.

The facts are not in dispute. On May 5, 1969 an explosion occurred on premises in Turnersville owned by Irval Realty, Inc., resulting in extensive damage to the Watson Turkey Farm, which was located on the property and operated by Eastern Turkey, Inc. On July 30, 1969 an unrelated explosion occurred in Bewfield. This explosion completely destroyed a house and seriously injured Eleanor Papalardo, who died several days later. Investigations were made by the Board and the gas company, and reports thereof were filed with the Board pursuant to N. J. S. A. 48:2-36.1 and the Board’s administrative order Bo. 14:260.

Plaintiffs instituted actions against the South Jersey Gas Company for property damages caused by the explosions and for the wrongful death of Eleanor Papalardo. In preparing their cases for trial plaintiffs learned that following the Irval Realty explosion the gas company had removed some piping, and that while the firemen were still fighting the fire which followed the Papalardo explosion the company removed a gas meter, regulator and piping. One piece of such piping was allegedly misplaced. They also learned that reports based on testings conducted by the gas company had been submitted to the Board.

Plaintiffs requested permission of the Board to inspect ••and copy the reports filed by the company and reports made by the Board’s investigators. Defendant notified plaintiffs that such reports were privileged information under its administrative order Bo. 14:260 and refused the request. Plaintiffs thereupon brought an action in lieu of prerogative writs pursuant to N. J. S. A. 47 :lA-4 for an order to inspect ;and copy the records. Defendant filed an answer alleging that the information did not come within the classification •of public records which were discoverable under N. J. S. A. •47:1A-1 et seq. and was privileged under its regulation Bo. 14:406-4(4). Plaintiffs’ motion for summary judgment was .granted and defendant appealed.

N. J. S. A. 48:2-36.1 authorizes the Board to require a public utility to submit accident reports. Pursuant to that statute the Board promulgated administrative order No. 14:260 requiring a public utility to submit reports of “reportable accidents,” which include accidents that result in the death of a person or damage to the property of others amounting to more than $1,000. Defendant does not deny that the accidents involved in this case are “reportable accidents” under its administrative order or that reports have been filed by both the gas company and the Board’s investigators.

In the “Bight to Know Law,” L. 1963, c. 73 (N. J. S. A. 47:1A-1 et seq.), effective July 1, 1963, the Legislature declared it to be the public policy of this State that “public records shall be readily accessible for examination by the citizens of this State, with certain exceptions, for the protection of the public interest.” N. J. S. A. 47 :lA-2 provides in pertinent part:

Except, as otherwise provided in this act or by any * * * executive order of the Governor *' * * or by any regulation promulgated under the authority of any statute or executive order of the Governor, all records which are required by law to be made, maintained or kept on file by any board, body, agency, department, commission * * * or by any public board, body, commission, or authority created pursuant to law by the State * * * shall, for the purposes of this act, be deemed to be public records.

Pursuant to this authority, the Governor in 1963 issued executive order No. 9 which authorized and empowered the head or principal executive of each principal department of the State Government to adopt regulations setting forth which records under his jurisdiction shall not be deemed to be public records subject to inspection and available for copying. Acting under this authority the Board promulgated regulation No. 14:406-4 “(Public Beeords)”, subsection 4 of which provides:

All records which are required to be made, maintained or kept by and for the Board which relate to accidents and investigation of accidents concerning public utilities and to safety inspections and surveys of property and equipment of public utilities shall not be deemed public records, copies of which may be purchased or reproduced under the provisions of Chapter 73, P. L. 1963.

Defendant’s first point, which was not raised below, is that the accident reports here involved are not governed by the “Right to Know Law.” It contends that the public records referred to in the statute that may be inspected and copied are limited to records which “are required by law to be made, maintained and kept on file” and that this phrase means “required by statute”; that since the filing of accident reports is not required by statute but by a Board regulation (administrative order Ko. 14:260) plaintiffs have no right to inspect and copy the reports.

We think the Board takes too narrow and restrictive a view in its interpretation of the phrase “required by law.” As noted above, N. J. S. A. 48:2-36.1 authorizes the Board to order a public utility to submit any data relevant to any inquiry or investigation pending before the Board. Pursuant to that authority the Board adopted a regulation (administrative order Ko. 14-260) which requires a utility to file reports of specified accidents. Orders of the Board may be enforced by recourse to the courts, N. J. S. A. 48:2-41, and by the imposition of penalties, N. J. S. A. 48:2-42. Rules and Regulations adopted by administrative agencies pursuant to the power delegated to them by the Legislature have the force and effect of law. Cammarata v. Essex County Park Comm’n., 46 N. J. Super. 262, 269 (App. Div. 1957), aff’d 26 N. J. 404 (1958). We conclude that the accident reports filed by the public utility in this case fall within the category of public records as defined in the “Right to Know Law.”

Defendant claims that if the accident reports made by its investigators or filed with it by the public utility are public records they are exempt from disclosure under the express exceptions contained in N. J. S. A. 47 :lA-2, namely, exceptions provided by “executive order of the Governor * * * or by any regulation promulgated under the authority of any statute or executive order of the Governor.” It declares that regulation No. 14:406-4(4) barring the inspection and copying of such reports is a reasonable regulation and that disclosure of the reports would be inimical to the public interest. It further contends that the preservation of the integrity and efficiency of the Board requires that accident reports bo privileged from disclosure.

Defendant asserts that administrative order No. 14:260 requiring a public utility to submit accident reports is to help the Board determine what safety practices should be recommended; that its purpose is to consider remedial procedures and not a determination of negligence or other fault on the part of the utility. The Board alleges that utility companies, recognizing that accidents are harmful to the company as well as to the public, have advanced theories, guesses, assumptions and suggestions in their reports which assist in determining what remedial measures should be taken to avoid similar accidents. It claims that if such reports are made available to persons who intend to sue the utility, the reports will be less than candid and greatly reduce their value.

Defendant also alleges that the rationale underlying N. J. S. A. 48:2-38, which exempts its members and employees from testifying or furnishing documents in civil suits, is evidence of legislative recognition of the necessity of keeping its operations free from impairment. It argues that based on this legislative concept courts should not unduly interfere with its operations by requiring disclosure of accident reports.

Preliminarily, it should be noted that plaintiffs do not claim that the reports they wish to inspect would be evidential in their pending civil litigation; they seek only to discover facts set forth therein which may lead to admissible evidence. Cf. Phillips v. Erie Lackawanna R. R. Co., 107 N. J. Super. 590 (App. Div. 1969), certif. den. 55 N. J. 444 (1970).

At common law a citizen was entitled to inspect public records provided he showed a requisite interest therein. In Ferry v. Williams, 41 N. J. L. 332, 336 (Sup. Ct. 1879), the court held it was sufficient if the person seeking inspection had such interest in a specific controversy as would enable him to maintain or defend an action for which the public documents would furnish competent evidence or necessary information. See also Accident Index Bureau, Inc. v. Hughes, 83 N. J. Super. 293, 298-299 (App. Div. 1964), aff’d 46 N. J. 160 (1965); Moore v. Bd. of Freeholders, Mercer County, 76 N. J. Super. 396, 405-407 (App. Div. 1962), mod., 39 N. J. 26 (1962); Taxpayers Ass’n of Cape May v. City of Cape May, 2 N. J. Super. 27 (App. Div. 1949).

Governor Hughes recognized that this right of inspection remained, although supplemented by N. J. S. A. 47:1A-1 et seq., when he issued executive order No. 9 which states:

Chapter 73 represents a right supplemental to the existing right of the public to examine and copy public records, which right has been established under the common law and by statute and remains inviolate even without the benefit of the provisions of said Chapter 73.

It is also clear that the right of the Governor, by executive order, and the Board, by regulation, to exclude public records from disclosure is implicitly qualified by N. J. S. A. 47:1A — 1, which indicates that such exclusions can be made only when necessary fox the protection of the public interest.

In Bzozowski v. Penn-Reading Seashore Lines, 107 N. J. Super. 467 (Law Div. 1969), the court held that plaintiff, who was involved in civil litigation concerning the manner in which an individual met his death at a railroad grade crossing, was entitled under N. J. S. A. 47:1A — 1 et seq. to inspect records of an investigation of the fatality conducted by the Board. The court ruled that the Governor’s executive orders must be read in pari materia with the statute under which the Board was given rule-making power, and that they were issued to carry out the general purpose of the “Right to Know Law” on the one hand and to protect and immunize certain records on the other, such as records of investigations in progress (N. J. S. A. 47 :lA-3), where the inspection, copying or publication would be inimical to the public interest. The court said that the executive orders and regulations promulgated thereunder must bear a relationship to public policy — the need to protect a record from disclosure and the balance between such need and the interests of justice and litigants. The court concluded that the total prohibition against inspection prescribed by regulation No. 14:406-4(4) was never contemplated by the Legislature, and that absent a showing of substantial harm to the public’s interest the inspection should be allowed. We are in accord with the rationale of Bzozowski.

Defendant’s argument, that if inspection of utility company accident reports were permitted the reports would be less than candid, is not persuasive. A similar argument was raised in Bzozowski at 473, 475, and in an analogous case, Lakewood Trust Co. of Lakewood v. Fidelity and Deposit Co., 81 N. J. Super. 329, 335-336 (Law Div. 1963), in which inspections were permitted.

We fail to see how the protection of the public would be adversely affected if plaintiffs were permitted to inspect the utility company’s reports in this case. The Board makes its own investigation of such accidents and it does not imply that utility company reports would be falsified if an inspection was permitted. The fact that a utility company might not include in its reports speculative theories concerning such accidents is clearly outweighed by plaintiffs’ right to be accorded substantial justice in the litigation of their claims.

Moreover, we perceive no logical reason why reports made by the Board’s investigators should not be inspected by citizens with a requisite interest therein, when an investigation has been completed. The statute creating the Board of Public Utility Commissioners, L. 1911, c. 195 (N. J. S. A. 48:2-1 et seq.), was intended to safeguard the interests of both public utilities and members of the public. O’Connor v. Board of Public Utility Comm’rs, 128 N. J. L. 35, 40 (Sup. Ct. 1942), rev’d on other grounds, 129 N. J. L. 263 (E. & A. 1942). Here the Board has made no showing that the inspection of its records and those filed by the gas company would be inimical to the public interest. It is undisputed that plaintiffs have a legitimate interest in such inspection because the records may furnish information calculated to lead to the discovery of admissible evidence in their litigation with the gas company. Pretrial discovery for such purposes is permitted. R. 4:10-2. See Huie v. Newcomb Hospital, 112 N. J. Super. 429, 432 (App. Div. 1970).

We hold the view that the policy of confidentiality of such records adopted by the Board must yield to the greater interest of assuring substantial justice to the plaintiffs. In summary, we hold that plaintiffs have the legitimate interest and status which entitles them to inspect and copy the public records which they seek.

Affirmed.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. ELTON C. PIERCE, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Submitted June 14, 1971
    Decided June 28, 1971.

      Before Judges Conford, Kolovsky and Carton.

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

      Mr. Joseph Tuso, Cumberland County Prosecutor, attorney for respondent (Mr. Samuel J. Serata, Assistant Prosecutor, of counsel and on the brief).
   Per Curiam.

This second post-conviction application based primarily upon alleged exeessiveness of sentence was barred since a prior post-conviction application on the same ground was determined adversely to defendant and not appealed. B. 3:22 — 3; 3 :22-5. Moreover, alleged excessiveness of sentence is not an appropriate ground of post-conviction relief, but only a ground for direct appeal from the conviction unless the sentence is “in excess of or otherwise not in accordance with the sentence authorized by law”. B. 3:22-2. This is not such a case.

There is no merit in the additional claim of absence of speedy trial.

Affirmed.


text:
    ALFRED F. BROWN, PLAINTIFF-APPELLANT, v. STATE OF NEW JERSEY, ET AL., DEFENDANTS-APPELLEES.
    Superior Court of New Jersey-Appellate Division
    Argued June 15, 1971
    Decided June 30, 1971.
    Before Judges Kilkenny, Halpern and Lane.

      Mr. Alfred F. Brown, appellant, argued the cause pro se.

      Mr. David S. Litwin, Deputy Attorney General, argued the cause for respondents-appellees {Mr. George F. Kugler, Jr., Attorney General of New Jersey, attorney).
   Per Curiam.

Alfred F. Brown took and passed the Civil Service examination for the position of legal research analyst with the Newark Housing Authority. He was listed eighth on the list of eligibles and was not afforded veteran’s status. After certification of the top three-eligibles Brown filed a notice of appeal. We granted a stay of appointment of one of the certified eligibles pending determination of this appeal.

Brown contends that (1) the provision of N. J. A. C. 4:9-4, which permits evaluation of education and experience in excess of the minimum requirements, is violative of due process and equal protection, and (2) the Federal Government in determining the dates for the beginning and end of armed conflicts has preempted the State from making such a determination, and thus he qualified as a “veteran,” with the preference attached by Civil Service Commission to that status.

Brown has served as legal research analyst for the Newark Housing Authority as a provisional employee since January 1968. On September 3, 1970, as noted above, he took and passed a Civil Service examination which had been called for that position.

On October 17, 1970 the Department promulgated an eligibility list on which appellant had been listed eighth. The list designated those eligible, their final averages, rank and veteran’s preferences. Although Brown had served in the United States Army from September 22, 1953 until June 30, 1955, he was not given veteran’s status. He was not awarded such status because he had not “served for at least ninety days in active service * * * for the National Emergency.” The emergency is considered to have been terminated on July 27, 1953. N. J. S. A. 11:27-l(ll). For that reason, Brown’s name was not included among those of the eligibles certified for appointment.

The first claim is that N. J. A. C. 4:9-4 violates “due process” and “equal protection.”

N. J. A. C. 4:9-4 provides:

When education and experience are included, as a qualification requirement and are to be rated as part of an examination, an applicant’s education and experience which exceeds the minimum announced requirements shall be evaluated and graded on the basis of scales approved by the chief examiner and secretary.

It thus permits education and experience in excess of minimum requirements to be taken into consideration in evaluating the score of an applicant. Brown contends that such is unconstitutional in that there are not proper and ascertainable standards which the chief examiner may follow in making such evaluation. He also asserts that such is in derogation of legislative policy. Education and experience are merely “qualification requirements.” He argues: “If an applicant possesses the minimum education and experience required for a particular job, then such applicant should thereafter be permitted to demonstrate such education and experience by way of ‘competitive’ examination.”

Such argument, however, is contrary to the philosophy exhibited in N. J. S. A. 11:9-3 which provides in part:

An investigation of education and experience and tests of intelligence, capacity, technical knowledge, mental skill or physical fitness or other qualifications which, in the opinion of the chief examiner and secretary serves to this end, may be employed.

The examiner has been afforded broad discretion in his determination of fitness and ability of applicants for positions. There is nothing which indicates an intention that he be restrained from taking into consideration past achievements of applicants.

Nor is the power of the examiner violative of due process as an improper delegation of authority. N. J. S. A. 11:9-3 evidences an intent that the authority should be vested in the chief examiner and secretary. It is implicit in the statute that education and experience should be taken into consideration where relevant to a determination of the “qualifications, fitness and ability of the person tested actually to perform the duties of the class or position to which he seeks appointment.” This provides “standards sufficiently definitive to guide” the exercise of “broad design” of the legislative aims. Cammarata v. Essex Cty. Park Comm’n, 26 N. J. 404, 410 (1958).

Nor is there any violation of equal protection evidenced. Though a class has benefited from the policy — those with extensive education and experience — the class is reasonably designated to fulfill the Civil Service policy.

Brown’s further argument is that Congress preempted the power of the State to grant preference in appointment to such classes of veterans as they might select.

As pointed out by the Attorney General in his brief, even if Congress possessed the power to do so, it has not seen fit to require States to follow its designation of veterans. There is no conflict between N. J. S. A. 11:27-l(ll) and 5 U. S. C. § 2108(1) (A). The federal statute applies only to the specific title (“Government Organization and Employees”), in which it is contained, as does the New Jersey Civil Service statute.

The decision of the Civil Service Commission is affirmed. The stay heretofore given pending disposition of this appeal is hereby vacated.


author: Leonard, J. A. D.

text:
    IN THE MATTER OF THE PETITION OF SOUTH LAKEWOOD WATER COMPANY PURSUANT TO N. J. S. A. 48:19-17 APPEALING THE REFUSAL OF THE TOWNSHIP OF BRICK TO GRANT MUNICIPAL CONSENT TO EXTEND FRANCHISE WITHIN A PORTION OF SAID TOWNSHIP. BRICK TOWNSHIP MUNICIPAL UTILITIES AUTHORITY, INTERVENOR-APPELLANT, v. SOUTH LAKEWOOD WATER COMPANY, PETITIONER-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued January 25, 1971 — Reargued May 24, 1971— Submitted June 8, 1971-
    Decided July 2, 1971.

      Before Judges Goldmann, Leonard and Fritz.

      Mr. Charles E. Starkey argued the cause for appellant (Messrs. Kannen, Starkey, Turnback & White, attorneys).

      Mr. John R. Rutledge, Jr. argued the cause for respondent South Lakewood Water Company.

      Mr. William Gural, Deputy Attorney General, argued the cause for respondent Board of Public Utility Commissioners (Mr. George F. Kugler, Jr., Attorney General, attorney).
   The opinion of the court was delivered by

Leonard, J. A. D.

The Brick Township Municipal Authority (MUA), as intervenor, appeals from a decision of the Board of Public Utility Commissioners (PUC) in favor of petitioner South Lakewood Water Company (Lakewood Water) approving consents granted by the New Jersey Department of Transportation and the Ocean County Board of Freeholders for the laying of pipes and mains beneath State Highway 70 and certain county roads located in Brick Township and the constructing and maintaining of hydrants on and along these roads in order to service properties bounding on Route 70 from the Lakewood Township line to, the Laurel-ton Circle.

The MUA contends that the PUC does not have the power to allow a water company to extend service to a municipality without the consent of that municipality.

Lakewood Water was incorporated in 1962 to service part of Lakewood Township and this franchise has since been expanded within that municipality. On December 22, 1967 Lakewood Water applied by letter to the Mayor and Council of .Brick Township for consent to serve a portion of that township. On July 8, 1968 it again submitted a request for approval of an extension of its water lines into the area. Though members of the municipal governing body met with the company’s representatives, no action was taken. Thereupon, Lakewood Water obtained the described county and state consents to lay its pipes. On April 3, 1969 Lakewood Water filed a petition with the PUC for approval of these consents and for authority to proceed. On April 24, 1969, before any PUC hearings were held, the MUA was formed and it was stipulated that it could participate in the hearings as an intervenor in place of the township.

In June 1970, following extended hearings, the PUC approved the consents granted to use the county roads and State Highway Eoute 70. In effect, this permitted Lakewood Water to extend service to Brick Township even though the latter had never consented.

The need for municipal consent to lay pipes in other than municipal streets was obviated by N. J. S. A. 48:19-17 which states:

Each wafer company may lay its pipes beneath such public roads, streets and places as it may deem necessary for its corporate purposes, free from all charge to be made by any person or body politic whatsoever for such privilege, and may also construct and maintain hydrants on and along such roads, streets and places, provided that the pipes shall be laid at least 3 feet below the surface and shall not in anywise unnecessarily obstruct or interfere with the public travel or damage public or private property.
The consent of the public body charged with the repair and maintenance of such public roads, streets and places shall first he obtained.
If such public body shall refuse or fail to give its consent, the water company may appeal to the Board of Public Utility Commissioners of the State of New Jersey. A hearing thereon shall be had on notice to all parties in interest, who shall be afforded an opportunity to be heard. If, after such hearing the Board of Public Utility Commissioners shall determine that the installation of such pipes or hydrants is reasonably necessary for the service, convenience or welfare of the public, the water company shall be authorized to proceed in accordance with such determination.

Since in the instant case no municipal roads were to he used, Lakewood Water did not need the township’s consent to lay pipes.

N. J. S. A. 48 :2 — 14 reads in pertinent part:

No privilege or franchise granted after May first, one thousand nine hundred and eleven, to any public uiility by a political subdivision of tbis state shall be valid until approved by the board. Such approval shall be given when, after hearing, the board determines that the privilege or franchise is necessary and proper for the public convenience and properly conserves the public interests. * * *

The PUC, as well as all the parties, followed the policy that the above statute must he read in pari materia with N. J. S. A. 48:19-17, cf. Deptford Tp. v. Woodbury Ter. Sewerage Corp., 54 N. J. 418, 424 (1969), and therefore PUC approval was necessary. Following the hearings, the PUC concluded that it was in the public interest that the proposed extension of water service be approved.

N. J. S. A. 40:14B-61 of the Municipal Utilities Authorities Law provides: “No facilities for the distribution of water within a district shall be constructed unless the municipal authority shall give its consent thereto and approve the plans and specifications therefor.” The PUC ruled that this statute was not applicable in the instant case since the MUA was established “subsequent to the filing of the petition —- as well as the dates on which the petitioner sought the township’s approval to serve the proposed service area.” We agree. The stipulation allowing MUA to participate cannot be construed as an agreement that it was in existence at the crucial time.

However, in making this ruling, the PUC gave no consideration to N. J. S. A. 48:19-20, which sets forth that:

Every * * * water company incorporated under the law of this State, may add to and extend its works to and within any municipality to such extent as may be necessary to carry out its corporate purposes, provided municipal consent is obtained and approved by the Board of Public Utility Commissioners, * * *.
Nothing in this section shall empower any company to supply or furnish water within the corporate limits of a municipality of this State owning or controlling its water supply, without the permission of such municipality.

This act clearly establishes that municipal consent is a prerequisite to any extension of service by a water company to territory within its jurisdiction.

The MUA is the alter ego of the municipality, “a ■means of discharging local governmental, responsibilities for the welfare of the inhabitants of the community.” Jordan v. Zidel, 40 N. J. 244, 248 (1963). That being so, the MUA had the same authority as Brick Township. Though in the instant case MUA consent was not necessary under N. J. S. A. 40.14B-61, nevertheless, some form of consent from the local governing body was mandatory pursuant to N. J. S. A. 48:19-20. Here, the MUA was acting in place of the township and voluntarily intervened in the proceedings. Thus, for our purposes we consider it and the township to be one and the same. Though normally, the PUC has no jurisdiction over municipal utility authorities, In re Glen Rock, 25 N. J. 241, 245-246 (1957); N. J. S. A. 48 :2-13, under the existing circumstances MUA was bound by the PUC determination.

We now turn to the critical issue as to whether the PUC can Teview a refusal of municipal consent to extend services within its boundaries under N. J. S. A. 48:19-20. Preliminarily, we note that although the record does not contain an actual refusal by the township, its conduct was tantamount thereto.

This statute contains no specific provisions for appeal to the PUC from a municipal refusal to grant such permission. In determining whether to acquiesce the municipality has a broad area of discretion. On the other hand, it is plain that the Legislature did not design to vest in the municipality the authority to absolutely veto every request for extension of service. Such a refusal, like any other municipal decision, may be reviewed by the courts in an action in lieu of prerogative writs in the event it is the product of fraud, arbitrary action or palpable abuse of discretion. Newark v. N. J. Turnpike Authority, 7 N. J. 377, 381-382 (1951); see Hackensack Water Co. v. Ruta, 3 N. J. 139, 146-147 (1949).

A judicial review of an alleged arbitrary refusal of consent by Brick Township to allow Lakewood Water to extend service would involve matters identical to those which the PUC have already examined in approving Lakewood Water’s petition. Since both parties agree that installation of an adequate water system is needed, the only issue that would be involved, as it was before the PUC, would be the advisability of having the service of Lakewood Water rather than the MUA. So that in either forum, the fundamental question is which of the two competing water services would better serve the public necessity and welfare. See Aldrich Water Co. v. Sprinkle, 70 N. J. Super. 134, 140 (Law Div. 1961). In the first instance, it is better that such a determination be made by the administrative agency with its great store of expert knowledge.

“Our courts have consistently held that the Legislature in Title 48 intended to delegate the widest range of regulatory powers over public utilities to the PUC.” Deptford Tp. v. Woodbury Ter. Sewerage Corp., supra, 54 N. J. at 424.

* * * [T]he public interest in proper regulation of public utilities transcends municipal or county lines, and * * * 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., 35 N. J. 358, 371 (1961)]

A recognition of this legislative intent is demonstrated in the 1966 amendment to N. J. S. A. 48 :19 — 17 (L. 1966, c. 233). Therein, water companies were given the express right to appeal to the PUC from the refusal or failure of a municipality to give its consent to the laying of pipes under and along its roads and streets. The legislative statement attached to this amendment in its essential part declared:

* * * * * 5¡: sjs Notwithstanding the decision of the Supreme Court in Hackensack Water Company v. Ruta, 3 N. J. 139 (1949) which states that a municipality may not arbitrarily or capriciously refuse its consent, public bodies might delay service to the public by refusing their consent and thus forcing the water company to resort to court action.
The proposed amendment permitting the water company to present its appeal to the Board of Public Utility Commissioners upon refusal or failure of the public body to give its consent, would provide a speedy determination of the controversy.
The public is protected since the board is required to make a finding that the installation is reasonably necessary for the service, convenience and welfare of the public.

Considering this legislative intent and the established judicial policy, we find that even though no express provision is made in N. J. S. A. 48:19-20, the PUC may first review the refusal of a municipality to give the requisite statutory consent. Of course, this determination may be judicially reviewed. See R. 2:2-3 (a) (2).

Despite the fact that the PUC reviewed Lakewood Water’s application to extend service only under the provisions of N. J. S. A. 48:2 — 14, we conclude that its determination is as valid as if it had reviewed the refusal of consent by Brick Township under N. J. S. A. 48:19-20. In effect, the PUC’s decision that the laying of Lakewood Water’s pipes in the roads should be allowed as “necessary and proper for the public convenience,” was a finding that at the time Lakewood Water was better qualified to serve the community. Taking into account the speed in which service could be established, the rates to be charged, and other financial and technical considerations, the PUC decided in effect that the municipal refusal of consent was not warranted and that Lakewood Water should be allowed to serve the area. The record substantially and reasonably supports such a conclusion. In re Greenville Bus Co., 17 N. J. 131, 137-138 (1954).

Judgment affirmed.


author: Carton, J. A. D.

text:
    THE CHESTER THEATRE GROUP OF THE BLACK RIVER PLAYHOUSE, A NEW JERSEY CORPORATION, PLAINTIFF-APPELLANT, v. THE BOROUGH OF CHESTER, DEFENDANT-RESPONDENT, AND STATE OF NEW JERSEY, DIVISION OF TAX APPEALS, DEPARTMENT OF TREASURY, RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued March 25,
    Decided July 6, 1971.

      Before Judges Conford, Kolovsky and Carton.

      Mr. Alan D. Rubenstein argued the cause for appellant.

      Mr. Francis A. Bock argued the cause for respondent Borough of Chester (Messrs. Orr & Bock, attorneys).

      Mr. George F. Kugler, Jr., Attorney General of New Jersey, filed a statement in lieu of brief on behalf of respondent Division of Tax appeals (Mr. Herbert K. Glickman, Deputy Attorney General, of counsel).

      Messrs. McCarter & English filed brief on behalf of The Playhouse Association, Inc., amicus curiae (Mr. Nicholas Conover English, of counsel).

      Messrs. Lum, Biunno & Thompkins filed brief on behalf of The Chatham Community Players, amicus curiae (Mr. William B. Lum, of counsel).
   The opinion of the court was delivered by

Carton, J. A. D.

The Chester Theatre Group of the Black Eiver Playhouse (Group) appeals from an order of the Division of Tax Appeals (Division) affirming the denial by the Morris County Board of Taxation of a real property exemption under N. J. S. A. 54:4-3.6.

The Group is a New Jersey nonprofit corporation organized “to stimulate, perpetuate and develop interest in the dramatic arts and to educate the general public in the arts.” Its charter provides that no part of any income shall inure to the benefit of any private shareholder, member or individual. Upon dissolution the assets of the corporation are to be distributed only to such organizations whose purposes are similar and which enjoy exemption from federal income tax.

Parenthetically, we note that the Group has been exempted from both the New Jersey state sales tax and from federal income tax as an educational institution.

The Groups owns what is commonly called the Chester Theatre (Block 13, Lot 1), situated at the corner of Grove and Maple Streets in the Borough of Chester. For tax purposes the municipality assessed the property at $4200 in 1966 and $3575 in 1967.

The theatre property was acquired by the Group in May 1966 and has been used exclusively for drama workshops, plays, displays of art and productions of music since that time. All activities have been conducted on a nonprofit basis. Membership in the Group is open, but one need not be a member to participate in the Group’s activities. And, although an admission price of about $2 is normally charged for performances, that fee is “just enough to support [the Group’s] function.” The Theatre seats about 125 persons. None of the performers receives any compensation.

The music and drama activities offered in the workshops are similar to those offered by high schools and colleges as part of the educational curriculum. At the hearing before the Division, Dr. Robert W. Young, superintendent of schools, related that although the West Morris Regional School District maintained a dramatic arts program, no such program is offered in the adult education sector “[b]ecause there is a good center in Chester * * * for adults * * *. [T]here is not a demand for this [area of study] because there is an active group [referring to the Chester Theatre Group] in the community * * The school system has also utilized the Chester Theatre for at least one school production.

Apart from offering children’s programs locally, the Group maintains a traveling company which has performed before 4,000 children throughout the country. This company rehearses in the Chester Theatre.

The Division concluded that the organization does not meet the statutory requirements for exemption that it be “actually and expressly used for the moral and mental improvement of men, women and children.”

In pertinent part N. J. S. A. 54:4-3.6, adopted under the authority of N. J. Const. (1947), Art..VIII, § I, par. 2, provides:

The following property shall be exempt from taxation under this chapter: All buildings actually used for colleges, schools, academies or seminaries; * * * all buildings actually and exclusively used in the tcorlc of associations and corporations organised exclusively for the moral and mental improvement of men, women and children, or for religious, charitable or hospital purposes, * * - all buildings owned by a corporation created under or otherwise subject to the provisions of Title 15 of the Kevised Statutes and actually and exclusively used in the work of one or more associations or corporations organized exclusively for charitable or religious purposes, which associations or corporations may or may not pay rent for the use of the premises or the portions of the premises used by them; * * * the land whereon any of the buildings hereinbefore mentioned are erected, and which may be necessary for the fair enjoyment thereof, and which is devoted to the purposes above mentioned and to no other purpose and does not exceed 5 acres in extent; *•' * * provided, in case of all the foregoing, the buildings, or the lands on which they stand, or the associations, corporations or institutions using and occupying them as aforesaid, are not conducted for profit, except that the exemption of the buildings and lands used for charitable, benevolent or religious purposes shall extend to eases where the charitable, benevolent or religious worls therein carried on is supported partly by fees and charges received from or ov behalf of beneficiaries using or occupying the buildings; provided, the building is wholly controlled by and the entire income therefrom is used for said charitable, benevolent or religious purposes. The foregoing exemption shall apply only where the association, corporation or institution claiming the exemption owns the property in question and is incorporated or organized under the laws of this State and authorized to carry out the purposes on account of which the exemption is claimed * * *. [Emphasis added]

Whether the Division’s ruling is correct requires consideration of whether the Group’s property is "actually and exclusively used in the work of [an] association(s) and [or] corporation(s) organized exclusively for the moral and mental improvement of men, women and children.” A conclusion that the property is not used for such purposes would require a consideration of the alternative grounds urged for exemption that the building is used for "religious, charitable or hospital purposes or for one or more of such purposes,” or for a "school” as that term is contemplated by the Legislature. These issues must be considered in harmony with the general principle that ordinarily all property should bear its just and equal share of the tax burden and that the burden of proof is on the exemption claimant. Presbyterian Homes, etc. v. Division of Tax Appeals, 55 N. J. 275, 283 (1970); Bloomfield v. Academy of Medicine of N. J., 47 N. J. 358, 363 (1966); Princeton University Press v. Princeton, 35 N. J. 209, 214 (1961).

There is no legislative delineation of the "moral and mental improvement” classification in the exemption statute. The cluster of abstract concepts themselves suggests that, at most, only a descriptive definition is contemplated.

Many would assert that anything which pertains to the development or betterment of the mental faculties falls within the concept of "mental improvement.” Few would deny that the development of man’s awareness of himself and his consciousness of the world around him are laudable in purpose. Viewed in this broad context, does not life itself on a daily basis serve to educate? That some "improvement” or betterment is contemplated does not delimit the unbounded means of learning. “If way to the Better there be, it exacts a full look at the Worst.” Thomas Harding, “In Tenebris II.”

So, too, philosophers down through the ages have debated what is moral and what morality means. “The notion of morals implies some sentiment common to all mankind, which recommends the same object to general approbation, and makes every man, or most men, agree in the same opinion or decision concerning it.” David Hume, “An Enquiry Concerning the Principles of Morals,” IX (1151).

We are not required here to give a precise definition of these terms nor to catalog all activities which might fall within their ambit. Despite the uncertainty of the outer bounds of the classification, we are satisfied that the activities of this organization are well within its compass and are not so esoteric as to deny the benefit of the exemption.

Through its dramatic offerings and the presentation of musical recitals the Theatre Group seeks to enrich the experience of its members and patrons and to ennoble and strengthen their character. No study of literature is considered complete by the academic community without including a survey of the works of Shakespeare through Eugene O’Neill. What musical appreciation course would be considered meaningful without some reference to Beethoven and other respected composers — both traditional and modern. The performance of such works generates certain pleasure to some although possibly dismay to others. “The great law of culture is, Let each become all that he was created capable of being; expand, if possible, to his future growth * * Thomas Carlyle, “J. P. Richter” (1821).

Contrary to the borough’s contention, there need not be direct proof that the Group’s productions improve any particular individuals morally or mentally. It is generally accepted that dissemination of literary material through the dramatic arts and the presentation of musical recitations advance the intellectual and social bases of man in general. See Little Theatre of Watertown v. Hoyt, 1 Misc. 2d 907, 165 N. Y. S. 2d 292 (Sup. Ct. 1956), aff’d o. b. 4 A. D. 2d 853, 161 N. Y. S. 2d 240 (App. Div. 1957); cf. Stockton Civic Theatre v. Board of Supervisors, 66 Cal. 2d 13, 56 Cal. Rptr. 658, 423 P. 2d 810 (Sup. Ct. 1967); Springfield Art Ass’n v. Porterfield, 23 Ohio App. 2d 267, 262 N. E. 2d 880 (Ct. App. 1970).

Through the Theatre’s activities the community of Chester and the surrounding areas are provided with a vehicle through which participation in the arts, in stage design and in production management is possible. Further, a general educational purpose is fulfilled in that the public is provided with a means to appreciate these art forms. That a performance of Moliére or Chekhov may delight the viewer and that the performer may enjoy his role is incidental to and does not derogate from the inherent intellectual and educational value of the production. See Little Theatre of Watertown v. Hoyt, supra. Although the scope of the Group’s activities is relatively limited by the size and geographical situation of the theatre, the availability of the programs offered advances and benefits the general public morally and intellectually at little or no expense to the individual. See N. J. S. A. 54:4-3.6 which states that “charitable, benevolent or religious work” can be supported by fees without destroying the exemption so long as the organization’s activities are not conducted for a profit.

In view of this conclusion we need not inquire as to whether the Group conducts a “school” or is organized for “charitable purposes” within the meaning of N. J. S. A. 54:4^3.6. However, we observe that the Group is organized for general educational purposes and is exempted from federal income tax and state sales tax on that basis. See Little Theatre of Watertown v. Hoyt, supra; but see Little Theatre of Dallas v. Dallas, 124 S. W. 2d 863 (Tex. Civ. App. 1939). Compare N. J. S. A. 54:4^-3.6 with N. J. S. A. 54:32B-9 (b)(1).

We note that there is authority holding theatre and art groups to be “charitable” within the meaning of similar exemption statutes, see i. e., Stockton Civic Theatre v. Board of Supervisors, Supra; Springfield Art Ass'n v. Porterfield, 23 Ohio App. 2d 267, 262 N. E. 2d 880 (Ct. App. 1970). This organization may arguably also be exempt under the theory that it fulfills, either partially or totally, the community need for adult education in the arts (see N. J. S. A. 18A:50-1 et seq.) and offers activities and productions which intellectually and socially advance and benefit not only the individual participants involved but the general public as well.

Since the Group itself is nonprofit and all property controlled by that corporation is irrevocably and exclusively dedicated to its benevolent purposes, we conclude that Chester Theatre fulfills all requisites to an exemption under N. J. S. A. 54:4-3.6.

Reversed.

       Activities for which the building has been used include a “[James] Thurber Carnival,” “All My Sons” (a play by Arthur Miller), an organ concert, workshops for both children and adults, music concerts, a presentation by the Harlem Dramatic Arts Group, another by the Morristown Players of “Electra,” and the presentation of children’s lhays.


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

text:
    ROMANUS J. BUCKLEY, REVENUE COMMISSIONER OF THE DEPARTMENT OF COLLECTION OF THE CITY OF PHILADELPHIA, PLAINTIFF-APPELLANT, v. FULTON B. HUSTON, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued June 1, 1971
    Decided July 9, 1971.

      Before Judges Conford, Kolovsky and Carton.

      Mr. Albert J. Persichetti, Deputy City Solicitor of Philadelphia, Pennsylvania, admitted pro hac vice, argued the cause for appellant (Messrs. Tort & Daniels, attorneys).

      Mr. Martin F. McKernan argued the cause for respondent.
   The opinion of the court was delivered by

Conford, P. J. A. D.

This is an appeal from a judgment of the Atlantic County District Court denying recovery by the taxing authority of the City of Philadelphia of delinquent wage taxes due over a long period of time from defendant, a New Jersey resident who was employed during that period in Philadelphia.

The issues argued before us have revolved around two questions: (a) whether New Jersey has authorized collection hero of this tax by enactment in 1962 of an amendment of N. J. S. A. 54:8A — 46 (L. 1962, c. 70, § 9); (b) whether, independent of the statute, New Jersey should as a matter of general policy allow its courts to be used for recovery of taxes owing to an out-of-state taxing jurisdiction.

IVe have concluded (1) that by the enactment of the statute cited above the Legislature has made the terms and conditions of that act the conclusive criteria for the existence vel non of a right of recovery of the taxes here involved, and (2) that the act, properly construed, precludes recovery.

In 1961 the Legislature adopted L. 1961, c. 32, commonly known as the Emergency Transportation Tax Act. The purpose of the act was to raise money to meet the costs of solution of commuter transportation problems in so-called critical commuter areas comprising parts of New Jersey and other states — such areas to be designated annually by the Commissioner of Transportation. The act provided for a New Jersey state income tax on New Jersey residents deriving income in the critical commuter area of the other state and on residents of that state deriving income within the critical commuter area here, with a contemplated scheme of credits by either such state (New York long has provided for such a credit) against income taxes imposed by it for the amount of payments of tax to the other. From the beginning the only critical commuter area designated administratively has been the New York-New Jersey metropolitan area.

In 1962 the act was amended (L. 1962, c. 70, § 9) to provide as follows (N. J. S. A. 54:8A-46) :

(a) At the request of the Division of Taxation, the Attorney General may bring suit, in the name of this state, in the appropriate court of any other State to collect any tax legally due this State under this act.
(b) The courts of this State shall recognize and enforce liabilities for taxes lawfully imposed Toy any other State, upon incomes, which extends a like comity to this State, and the duly authorized officer of any such State may sue for the collection of such a tax in the courts of this State. * * *
(c) For the purposes of this section, the words “tax” and “taxes” shall include interest and penalties due under this act, and liability for such interest or penalties or both, due under a taxing statute of another State shall be recognized and enforced by the courts of this State to the same extent that the laws of such other State permit the enforcement in its courts of liability for such interest or penalties or both, due under this act. (Emphasis added.)

The county district court held that the provisions of (b) of the foregoing were controlling, and that since it specified only taxes imposed by another “State” as the permitted object of an action here, taxes imposed by a municipality in another state were not intended to be recoverable here. Although we disagree with the approach of the county district court in regarding the statutory provision as a taxing statute, and therefore of a category which should be construed in favor of the taxpayer, we nevertheless agree with the result reached. The pertinent provisions of N. J. S. A. 54:8A-46 are not taxing legislation but of a jurisdictional nature. The act should he fairly construed in the light of its language and such appropriate indicia of actual legislative intent as are available.

We believe that when the legislators referred in (b) to “taxes * * * imposed by any other State,” they were using the term “State” as it would be understood in common parlance, i. e., to describe taxes imposed by the legislature of another state, assessed and collected by state officials and deposited into the general state treasury for use as appropriated by the legislature. This is to be contrasted with local taxes, which, although authorized by the state legislature, are assessed, collected and disbursed locally and for local governmental purposes.

Several separate considerations, over and above the common signification of the language used, conduce to the stated result.

1. The section in question is an amendment to a statute imposing a state income tax. The apparent purpose of the amendment was to provide the means for the collection elsewhere by the Attorney General of the state income tax thus imposed. It was. presumably deemed necessary, in connection with that objective, to give other states a reciprocal right to sue for their taxes here. But since the dominating legislative concern was the collection of New Jersey state income taxes, there is no reason to infer an intent to allow foreign taxing authorities to sue here for local taxes of any kind. The Legislature was not here concerned with facilitating actions in other states to collect taxes levied locally in New Jersey, and there was no occasion to afford reciprocity in relation thereto. Note the absence from our statute of authorization for any New Jersey local official to sue elsewhere, in contrast to the express grant of such permission in the comparable New York reciprocal statute, which generally is cast in the same framework as our act. Laws of Now York 1962, c. 677, art. 25, § 902.

2. Plaintiff represents that its research discloses that of the 50 states 42 have enacted tax reciprocity statutes allowing their courts to be used to collect taxes of other states;, and that, of these, 22 employ language expressly including a “political subdivision” of the other state as among the entitles permitted to sue. See, e. g., 12 Purdon’s Penna. Statutes § 1292 (adopted August 14, 1963); Laws of New York 1962, c. 677, art. 25 (adopted April 19, 1962).

Thus, with a choice of two types of expression commonly used in reciprocity statutes of other states, one of which would have unequivocally allowed actions here by political subdivisions of foreign states, the New Jersey Legislature eschewed the latter option. Under the circumstances this must be accounted persuasive evidence that the Legislature did not intend to allow actions here by political subdivisions. Cf. Keenan v. Essex Cty. Bd. of Chosen Freeholders, 101 N. J. Super. 495, 507 (Law Div. 1968), aff'd 106 N. J. Super. 312 (App. Div. 1969).

3. The courts of Pennsylvania do not regard a local tax enacted under state legislative authorization as being a "state tax” for purposes of the prohibition in the authorizing statute of local taxes on transactions, subjects, etc., then or thereafter "subject to a state tax.” 53 Purdon’s Penna. Statutes § 15971. National Biscuit Co. v. Philadelphia, 374 Pa. 604, 98 A. 2d 182 (Sup. Ct. 1953).

In view of the affirmative indicia of legislative intent in this particular regard discussed above (especially points 1 and 2)- we see no point in appraising precedents as to whether a local tax, generally speaking, can be considered a state tax for other purposes, or theoretically. See Jersey City v. Martin, 126 N. J. L. 353, 360 (E. & A. 1941); cf. National Biscuit Co. v. Philadelphia, supra; McClelland v. Pittsburgh, 358 Pa. 448, 57 A. 2d 846 (Sup. Ct. 1948).

In arriving at onr conclusion herein we have not given any weight to the traditional rule against one state enforcing the revenue laws of another, as we have been urged to do by defendant. Annotation 165 A. L. R. 796 (1946). There is firm support for the view that the stated doctrine would not now be applied in this State as a matter of common law. See Pennhurst State School v. Estate of Goodhartz, 42 N. J. 266, 271 (1964). But we need not debate what common law would dictate in the present controversy were we not faced with a statute undertaking to control the special subject of permission of actions in this, state for recovery of taxes on incomes levied outside our borders. We have such a statute. It can hardly be gainsaid that in fixing specific terms and conditions for the maintenance of such actions in this State the Legislature by plainest implication was declaring that where such terms and conditions did not exist the action was not to be permitted. Thus, within the general category of foreign taxes on or measured by “income,” of which the Philadelphia wage tax is concededly a species, the Legislature must by enactment of N. J. S. A. 54:8A-46(b) be deemed to have preempted that particular field both affirmatively and negatively.

In short, if, as we hold, the Philadelphia wage tax is not a “State” tax on incomes, the Legislature has manifested a directive that our courts not be open for its recovery. We have no occasion to, and therefore do not intimate whether foreign taxes clearly not referable to income, such as those on personal property, real estate, etc., are recoverable in the courts of this State.

In view of the foregoing conclusions we need not consider questions argued relating to recovery of interest and penalties or as to the application of any statute of limitations.

Affirmed.


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

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. ARTHUR HENRY FISHER, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued June 15, 1971
    Decided July 7, 1971.

      Before Judges Lewis, Matthews and Mintz.

      Mr. Arthur Penn, First Assistant Deputy Public Defender, argued the cause for appellant (Mr. Stanley C. Van Ness, Public Defender, attorney; defendant pro se on supplemental brief).

      Mr. Richard J. Jubanyik, designated counsel, argued the cause for respondent (Mr. A. Donald Bigley, Prosecutor of Camden County, attorney).
   The opinion of the court was delivered by

Lewis, P. J. A. D.

Defendant Arthur Henry Eisher appeals from an order of the Camden County Court which denied his petition for postconviction relief from an allegedly illegal sentence imposed on August 30, 1968.

The record reveals these relevant facts: On May 25, 1967 defendant was sentenced by the Camden County Court on a guilty plea to an indictment charging him with breaking and entering with intent to steal and attempted larceny, respectively in violation of N. J. S. A. 2A:94-1, N. J. S. A. 2A:85-5 and N. J. S. A. 2A:119-2. At the time of sentencing, notwithstanding defendant’s lengthy criminal record, the sentencing judge remarked that he was going to give defendant “a break,” saying: “I am going to take a chance on you, Mr. Eisher, because I think you were drunk at the time you committed this crime, and you told me you are going to stop drinking.” The imposition of sentence then followed:

* * * I am going to sentence you to nine months in the County Jail, and give you credit for what you have served. You have actually served, as I compute it from the information before me — you went to jail on August the 8th. So, it’s approximately nine months and eighteen days that you have spent in jail. You are to have credit for the time you spent in jail, which means you have served the sentence.
Further, I am going to place this man * * * on two years’ probation. The sentence has been served, and there will be two years’ probation.

Defendant violated probation, and, at a hearing on that charge, probation was revoked. Defendant was then sentenced to a term of five to seven years in State Prison. Immediately following that pronouncement, this outburst occurred :

THE DEFENDANT: For what? You can’t given me no more than two years no matter what way you look at it.
Don't worry, Sport, I’m going.
You must be insane. You ain’t even a Judge for Christ’s sake. You call yourself a Judge?
THE COURT: Now, say that remark here.
THE DEFENDANT: You can’t sentence me to five or seven years. I know that much about the law.
THE COURT: Take him away.
THE DEFENDANT: You’re a Judge, my ass. You don’t know the law. You can’t possibly give me more than two years. Are you nuts? And I only got six months of probation.
I’ll go.
You’ll see how long you live. Man, five to seven years for Christ’s sake.

The sentencing judge might well have cited defendant for contempt but he did not do so. At this juncture, it should be noted that where probation has been revoked the court may impose a sentence greater than that initially suspended so long as the new sentence does not exceed that which could originally have been imposed, State v. Pallitto, 107 N. J. Super. 96, 100 (App. Div. 1969), certif. den. 55 N. J. 309 (1970) — here seven years, N. J. S. A. 2A:85-6.

On appeal defendant contends that the original judgment of probation was void, and consequently the subsequent re-sentencing, after a purported violation of probation, was illegal. The arguments run that (1) the original sentence had been fully executed upon the court’s indication that defendant had served the sentence by having been incarcerated for over nine months pending trial, and (2) "since nothing in the record reveals an intention to .suspend the sentence * * * it must be concluded that the judgment of probation was void” and the sentence was executed.

At common law "there could not be suspension of part of a sentence nor a fragmentary imposition of sentence.” Adamo v. McCorkle, 26 N. J. Super. 562, 567 (App. Div.), rev’d o.g. 13 N. J. 561 (1953), cert. den. 347 U. S. 928, 74 S. Ct. 531, 98 L. Ed. 1080 (1954). Consequently, if a sentence was to be suspended, it had to be suspended in its entirety. State v. Braunstein, 5 N. J. Misc. 243, 136 A. 199 (Sup. Ct. 1927). By statute, however, our courts are now empowered to impose a sentence whereby a defendant may be required "to serve a designated part of such sentence in [any county jail, penitentiary or workhouse], and, thereafter, after having been given credit for days remitted, if any, to be released on probation.” N. J. S. A. 2A-.16A-16. This statute also provides that upon violation of the terms of probation, the court may “resentence such person to such jail, penitentiary or workhouse for the remaining portion of the sentence originally pronounced.”

In this respect, a partially suspended sentence under N. J. S. A. 2A:164^16 (providing for custodial detention in a county facility) apparently differs from a complete suspension in that upon a violation of the terms of the latter our law permits the sentencing court to impose a greater custodial sentence than that suspended, provided that the new sentence does not exceed that which could originally have been imposed. In re White, 18 N. J. 449 (1955); State v. Pascal, 133 N. J. L. 528, 533 (Sup. Ct. 1946), aff’d o.b. 1 N. J. 261 (1949); Pallitto, supra, 107 N. J. Super, at 100; State v. Louis, 97 N. J. Super. 35, 40 (App. Div. 1967); State v. Driesse, 95 N. J. Super. 491, 494 (App. Div. 1967). See N. J. S. A. 2A:168-4, the statute upon which this rule is based, which provides in pertinent part that upon revocation of probation the court “may cause the sentence imposed to be executed or impose any sentence which might originally have been imposed.” (Emphasis added).

In the instant matter neither of the foregoing rules for resentencing are applicable because the original sentence was improper for at least two different reasons. Eirstly, the sentence was totally ambiguous with respect to the time and the manner in which it was to be served. That being so, it was illegal and hence correctible at any time. State v. Heslip, 99 N. J. Super. 97, 100 (App. Div.), certif. den. 51 N. J. 570, cert. den. 393 U. S. 928, 89 S. Ct. 265, 21 L. Ed. 2d 265 (1968); Scarponi v. United States, 313 F. 2d 950, 953 (10 Cir. 1963); see R. 2:10-3. Secondly, giving conclusive effect to the sentencing judge’s statement that he intended to impose a term of two years and nine months, Heslip, supra, 99 N. J. Super, at 102, the sentence would have required a custodial term to be served in State Prison. N. J. S. A. 2A:164-15. That being the case, the failure to state a minimum and maximum term violated the mandate of N. J. S. A. 2A:164-17 and invalidated the sentence. State v. Janiec, 25 N. J. Super. 197, 200 (App. Div. 1953); State v. Moore, 21 N. J. Super. 419 (App. Div. 1952). But see State v. Cooper, 54 N. J. 330, 333-336 (1969), cert. den. 396 U. S. 1021, 90 S. Ct. 593, 24 L. Ed. 2d 514 (1970).

It is thus clear that the original sentence pronounced was improper. Therefore, the sentencing court’s jurisdiction was not exhausted and, in fact, will not be exhausted until a valid sentence has been imposed. State v. Culver, 23 N. J. 495, 510-511, cert. den. 354 U. S. 925, 77 S. Ct. 1387, 1 L. Ed. 2d 1441 (1957); State v. Minter, 55 N. J. Super. 562, 569-570 (App. Div. 1969); see R. 2:10-3; State v. Andrews, 105 N. J. Super. 62, 65-66 (App. Div. 1969), remanded 56 N. J. 372 (1970). Moreover, the possibility of increasing the severity of the sentence as originally pronounced is not affected by the problematical considerations attending resentencing after execution of the sentence has begun because, as the sentencing judge later indicated, the incarceration period pending trial was obviously not intended to be a complete satisfaction of the original sentence, and this notwithstanding the ambiguous language he employed. Note the discussions in Culver, Andrews and Minter, all supra; and State v. Weeks, 6 N. J. Super. 395, 399 (App. Div. 1950).

We conclude that the original sentence was improper and that what followed did not preclude its correction. However, the resentencing was defective because it failed to credit defendant with the time that he had previously served pending trial. R. 3:21-8; United States ex rel. Di Rienzo v. New Jersey, 423 F. 2d 224, 226 (3 Cir. 1970). Compare State v. Allison, 81 N. J. Super. 390, 393-394 (App. Div. 1963).

Justice demands that the matter should be remanded for a corrected sentence. In the circumstances, the resenteneing procedure should be conducted before a sentencing judge other than the judge in whose presence defendant’s contemptuous conduct had taken place.

Remanded for resentencing consistent with this opinion.


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

text:
    IN THE MATTER OF SISTER MARGARET MURTHA, CHARGED WITH CONTEMPT OF COURT.
    Superior Court of New Jersey Appellate Division
    Argued May 10, 1971
    Decided July 6, 1971.

      Before Judges Goldmann, Halpern and Fritz.

      Mr. Robert L. Podvey argued the cause for appellant Sister Margaret Murtha (Messrs. Podvey, Sachs Kalbenbacher, attorneys).

      Mr. Edwin H. Stern, First Assistant Prosecutor, argued the cause for respondent State of New Jersey (Mr. Geoffrey Gaulkin, Hudson County Prosecutor, attorney).
   The opinion of the court was delivered by

Goldmann, P. J. A. D.

Sister Margaret Murtha appeals from a Law Division order holding her in contempt for violation of an order directing that she testify before a special Hudson County grand jury, and confining her to the county jail until she had purged herself by answering the questions posed. The trial judge having denied bail, we released Sister Margaret in the custody of her attorneys and scheduled the appeal for early argument.

On March 4, 1971 Sister Margaret appeared pursuant to subpoena before the special grand jury investigating an alleged homicide that had taken place about midnight of February 26/27, 1970. After giving her name, and her address as St. Boniface Convent, Jersey City, she affirmatively answered a question as to whether she was at the convent on February 27, 1970 when Sister Francesca awakened her at 1 a.m. to speak to a Louis Cevetello. Having stated that she had a conversation with him at that time, she was shown a statement signed but not sworn to by her at police headquarters at 3 :05 of the morning in question. She admitted she had read the statement before signing it, but ■when asked if it reflected, in substance, what she had told the police prior to signing, she refused to answer, claiming the priest-penitent privilege.

Sister Margaret was then asked a series of questions which she refused to answer on the basis of the same privilege: whether, after meeting with Cevetello, she had occasion to leave the convent with him and Sister Francesca; whether they drove to the area of Cole Street and 7th and 8th Streets, Jersey City; whether she had occasion to see a man lying there with his stomach moving up and down; whether the three of them then drove to the Second Precinct police station; whether, when Cevetello met her at the convent, he told her he wanted to go to the police station and tell what had happened; whether he at that time told her he had been drinking with a man known as “Happy” and had subsequently hit him, and that he appeared to be badly hurt and was lying in Cole Street between 7th and 8th Streets; whether she had gone to the Second Precinct at 1:30 a.ji. and told Desk Lieutenant Byrne that Cevetello had been in a fight with a man and had come to her at the convent, that the man was still lying in the street and she did not know if he was alive, but that his stomach was moving up and down.

Upon her refusal to answer before the grand jury, Sister Margaret was brought before Assignment Judge Larner for a hearing on her claim of privilege. The grand jury proceedings, outlined above, were read into the record. Sister Margaret was permitted to testify in order to establish the facts upon which she based her claim of the priest-penitent privilege. She said she was a member of the • Dominican Sisters of Caldwell, primarily a teaching order. Her four-year training period to become a nun included instruction in the religious life as well as in secular courses to prepare her for teaching, Cevetello, a Catholic youth of 12 or 13 when she first met him in 1966, attended her social studies classes. From the beginning he would see her at the convent and at school to discuss family, social and moral problems, school problems and, on occasion, religious problems. Over a period of five years he talked with her at least once a month, and sometimes as frequently as once a week.

On cross-examination Sister Maigaret, in answer to the trial judge’s inquiry, admitted that she did not conduct any type of religious services in the school, nor did she “carry on any of the priest [ly] religious functions, such as confession or anything else which is normally done by a priest.” Nonetheless, she insisted that her role as teacher was secondary to her religious life: she viewed herself as “primarily a religious person.”

After considering the testimony, the arguments of counsel and the briefs submitted, Judge Larner found that Sister Margaret could not assert the priest-penitent privilege under N. J. S. A. 2A:84A — 23 (Evidence Rule 29). Privileges, he said, must be strictly construed, citing State v. Briley, 53 N. J. 498 (1969). He found that Sister Margaret was basically a teacher; her contacts wtih Cevetello involved not only the classroom teaching, but “the extension of the true functions of a good teacher, namely, acting by way of an advisor to the pupil, not only in connection with the formal subjects being taught but in connection with all problems that the boy may have had * * The fact that Sister Margaret had a religious training and background, and that she taught in a religious school, did not in the judge’s opinion change her status with respect to her relationship with young Cevetello. Eurthor, she did not perform the normal functions of a priest, did not conduct religious services, and had no powers or functions insofar as the Catholic Church was concerned. Judge Larner also found that what Cevetello told Sister Margaret on the night in question was not communicated to her in her professional character.

An order directing Sister Margaret to answer the questions put to her before the special grand jury was signed on March 9, 1971. This court, as well as the Supreme Court, denied her applications for leave to appeal. It appears that her attorney and the prosecution then agreed it would be satisfactory if Sister Margaret testified before the grand jury as to her observations and actions on the morning in question and to the fact that there had been a conversation between her and Cevetello; and further, that she would give this same testimony if called at the time of trial. However, according to her attorney, when she presented herself at the courthouse on May 6, 1971 to testify before the grand jury, the prosecutor asked her to promise she would testify at the trial as to the conversation she had with Cevetello the morning of February 27 if he took the stand and lied. She rejected the proposal and was then brought before the grand jury and asked the same questions as had been posed on her first appearance. After she again refused to answer the questions, she was taken before Judge Larner and her grand jury testimony read. The judge ordered her to answer, and when she refused to do so on the basis of the priest-penitent privilege, he found her in violation of the order of March 9 and immediately committed her to the county jail. The contempt order here under appeal followed.

It will be seen that the only asserted ground for Sister Margaret’s refusal to answer the questions asked of her before the special grand jury was her claim to the priest-penitent privilege. That claim was re-asserted in her applications for leave to appeal as well as in her application to be released from custody after entry of the contempt order. At oral argument of the appeal, however, a new contention was advanced. What Cevetello had told her, it is now said, was a confidential communication, and the State was prohibited from compelling its disclosure — this under the free exercise of religion provision of the First Amendment to the United States Constitution. It was conceded at the argument that this position was one of individual conscience, and was not a matter of church discipline or doctrine.

The priest-penitent privilege was not recognized as a rule at common law, either in England (certainly after the Restoration, 1660) or in the United States. 8 Wigmore on Evidence (3d ed. 1961), § 2394 at 869. New Jersey did not recognize it prior to 1947. State v. Morehous, 97 N. J. L. 285, 295 (E. & A. 1922). L. 1947, c. 324 (N. J. S. A. 2A:81-9) for the first time provided that

A clergyman, or other minister of any religion shall not be allowed or compelled to disclose in any court, or to any public officer, a confession made to him in Ms professional character, or as a spiritual advisor, or as a spiritual advisor in the course of discipline enjoined by the rules or practice of the religious body to which he belongs or of the religion which he professes.

The 1947 act was repealed by L. 1960, c. 52, § 49 and was supplanted by N. J. S. A. 2A:84A-23 (Evidence Buie 29), which reads:

Subject to Eule 37, a clergyman, minister or other person or practitioner authorized to perform similar functions, of any religion shall not be allowed or compelled to disclose a confession or other confidential communication made to him in his professional character, or as a spiritual advisor in the course of the discipline or practice of the religious body to which he belongs or of the religion which he professes.

Evidence Rule 37 (N. J. S. A. 2A:84A-29) provides that “a person waives his right or privilege to refuse to disclose * * * a specified matter if he * * * without coercion and with knowledge of his right or privilege, made disclosure of any part of the privileged matter * * *.”

Evidence Rule 29 obviously broadened the privilege to include not only a clergyman or minister, but any “other person or practitioner authorized to perform similar functions” of any religion. Moreover, the rule now prohibits not only the disclosure of a confession, hut also any “confidential communication” made to any such designated person in his professional character, or as a spiritual advisor in the course of the discipline or practice of the religious body to which he belongs or of the religion which he professes.

State v. Briley, above, which dealt with the husband-wife privilege in a criminal action (Evidence Rule 23(2), N. J. S. A. 2A :84-17), set out the policy which should control whenever a claim of privilege against testifying is made. Justice Erancis pointed to Evidence Rule 7 as declaring the basic policy of our law — that except as otherwise provided in the Evidence Rules or by statute, every person is qualified and compellable to be a witness and to give relevant and competent evidence at trial. The privileges granted under Evidence Rules 23 to 32, 34, and 36 to 40 (N. J. S. A. 2A :84A-17 to 32) to persons who refuse to testify or to prevent another from testifying were exceptions to that policy. Justice Erancis added:

* * * Since rigid adherence to the letter of the privileges promotes the suppression of truth, they should be construed and applied in sensible accommodation to the aim of a just result. In view of the obvious policy of the law to enlarge the domain of competency of witnesses and to adapt rules of evidence to the successful development of the truth, competency should be regarded as the rule and incompeteney as the exception. '* * * It follows therefore that when a greater public interest is served by recognizing the competency of one spouse to testify against the other and no violence is done to the privilege as expressed in a statutory or judicial rule of evidence, the testimony should be received. [53 N. J. at 506; citations omitted]

Applying what was said in Briley to Sister Margaret’s claim of tbe priest-penitent privilege, attention must at once be focused on tbe clause, "a clergyman, minister or other person or practitioner authorized to perform similar functions.” Sister Margaret did not, and obviously could not, show that she was a person or practitioner authorized to perform functions similar to those performed by a clergyman or minister — more specifically, by a priest. She was a religious (religieuse), a dedicated member of a teaching order of nuns, but she admittedly did not conduct any type of religious services involving pupils in the school, nor did she carry on any of the religious functions of a priest, such as hearing confessions or giving absolution. Asked to explain, if she could, what religious aspect she attached to her relationship with individuals such as Cevetello, as opposed to a social or an educational aspect, her answer was: “Yery frequently some problem, some moral problem as I stated before, or some problem even with some function or law of the church where they would be confused” — sic. When Judge Larner asked her whether this was not part and parcel of the educational process involved in teaching, even if what she did took place after school hours, she answered that she never thought of it as. solely an educational problem; “I saw other aspects of it.” To clarify that answer the judge asked, “When you talk about other aspects, are you talking about the overall general purpose that you feel you have in life; in dealing with children, in handling the whole child, whether it be his formal education, his religious problem, his social problems or whatever may arise; isn’t that it?” Sister Margaret’s answer was, “Yes.”

Counsel has been unable to find anything in Catholic doctrine or practice that would give Sister Margaret the right to claim the priest-penitent privilege. In our own research we have found no authority, textual or decisional, to support the contention now advanced that a nun qualifies for the privilege. In this connection, we were informed by counsel that Sister Margaret’s superiors urged her to testify; neither priest nor mother superior perceived any barrier to her doing so. We note from the record that Sister Francesca, who at one point also claimed the privilege, eventually agreed to testify to the fact of there having been a conversation between Oevetello and Sister Margaret and as to what she (Sister Francesca) saw and did thereafter.

Although we dispose of Sister Margaret’s claim of privilege on the basis of our reading of Evidence Buie 29, one may well question her right to the claim in light of Evidence Buie 37, relating to waiver of privilege by previous disclosure. She did not hesitate to go directly to the police station after viewing the body Cevetello pointed out to her, and there sign a statement as to what he had told her at the convent and what she saw and did thereafter. Her posture then was not that of a person standing in the relation of a priest hearing Cevetello’s confession or confidential communication. He had, quite simply, come to her for support and help in a time of great trouble, ready to go to the police and tell what happened. What Sister Margaret learned, Sister Francesca also learned, and the two of them accompanied Ceretello to Cole Street, and then to the police station. Any claim of confidentiality and privilege evaporates in such a factual setting.

We turn to the contention that the State is prohibited from compelling the disclosure of Cevetello’s alleged “confidential communication” by reason of the First Amendment to the United States Constitution: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; * * *,” made applicable to the states through the Fourteenth Amendment. Cantwell v. Connecticut, 310 U. S. 296, 303, 60 S. Ct. 900, 84 L. Ed. 1213 (1948); Engel v. Vitale, 370 U. S. 421, 430, 82 S. Ct. 1261, 8 L. Ed. 2d 601 (1962).

Counsel quotes at length from the constitution of Sister Margaret’s order as laying down the guidelines for a Dominican sister’s life. A thoughtful reading of the text fails to show that the path Sister Margaret would pursue in this case is dictated by the precepts of her teaching order, whose members “accept as our special commitment the pursuit and dissemination of truth.” The Caldwell Dominicans, declares the order’s constitution, “accept as our specific vocation the apostolate of education, by which we understand the communication of truth, which has ever been the Dominican ideal. Our concept of the educational apostolate embraces the communication of truth at all levels, from pre-school training through adult formation: It includes likewise both the formal and informal channels of education.” In light of the precepts embraced by Sister Margaret and her Dominican sisters, we find without substance her assertion that it was in performance of her obligations that she met with Cevetello and that what she heard, saw and did represented a constitutionally guaranteed right to the free exercise of her religion.

As noted, at oral argument the claim of free exercise of religion was transmuted into a claim of free exercise of conscience — a change of direction quite understandable in light of an inability to demonstrate anything in the Catholic religion prohibiting disclosure. In support of the argument that Sister Margaret was in conscience committed to keep confidential what Cevetello told her, counsel refers us to the treatment of this issue by the United States Supreme Court with regard to persons claiming conscientious objector status under the Selective Service Act. Section 6(j) of the act (50 U. S. C. A., § 456(j)) exempts from combatant training and service in the armed forces any person who “by reason of religious training and belief, is conscientiously opposed to participation in war in any form.” That section goes on to provide that “religious training and belief” does not include “essentially political, sociological or philosophical views, or a merely personal moral code.”

The most recent case is Welsh v. United States, 398 U. S. 333, 90 S. Ct. 1792, 26 L. Ed. 2d 308 (1970), in which the Supreme Court accepted the reasoning of the Second Circuit in United States v. Kauten, 133 F. 2d 703 (1943), that the proper focus of the test for military exemption is on the “conscientious” quality of the belief, and not its religious or nonreligious quality, and therefore the class of exempted persons must be wide enough to include those nonreligious believers whoso opposition is based upon the “compelling voice of conscience.” Cf. In re Weitzman, 426 F. 2d 439 (8 Cir. 1970) (exemption, under section 337(a) of the Immigration and Nationality Act of 1952, 8 U. S. C. A., § 1448(a), from swearing to an oath to bear arms in the armed forces for any person “who shows by clear and convincing evidence” that he is opposed to bearing arms “by reason of religious training and belief”).

The relationship of conscience to religion is a subject that lends itself to almost limitless treatment, whether one’s approach be theological, philosophical or, as here, constitutional. This vexing question has received increasing attention of late, particularly with respect to the claim of conscientious objector status in the military draft. The most recent treatment appears in 38 U. of Chi. L. Rev. 583 (1971), “The Legal Relationship of Conscience to Religion: Refusals to Bear Arms,” where many of the latest writings and authorities are referred to in the footnotes. If Sister Margaret’s cause is to draw any strength from the KautenW elsh-W eitzman holding, it must be that she has clearly and convincingly demonstrated that a compelling voice of conscience has sealed her lips. This she has not done. The most that can be said for her testimony is that it reflects a personally held moral code allegedly rooted in religion.

If Sister Margaret’s present conviction that she should not answer to the grand jury is a sincere one, one cannot but help wonder where that conviction, where that compelling voice of conscience, was when she hastened to the police station immediately after she had gone with Sister Erancesca and Cevetello to view what he had to show her on Cole Street. Then, after telling the police exactly what had been said and what had happened, she signed a statement in which she declared that it was “true and voluntary.”

This ease calls for a balancing of interests — that of the State in enforcing the power of the grand jury to inquire into the commission of a crime, and that of Sister Margaret who claims that she responds to a call of conscience. In the particular circumstances of this case the latter must give way to the former. Cf. People v. Woodruff, 50 Misc. 2d 430, 270 N. Y. S. 2d 838 (Sup. Ct. 1966), aff’d 26 A. D. 2d 236, 272 N. Y. S. 2d 786 (App. Div. 1966), appl. dism. on cond. 20 N. Y. 2d 879, 285 N. Y. S. 2d 622, 232 N. E. 2d 652 (Ct. App. 1967), aff’d 21 N. Y. 2d 848, 288 N. Y. S. 2d 1004, 236 N. E. 2d 159 (Ct. App. 1968); In re Williams, 269 N. C. 68, 152 S. E. 2d 317 (Sup. Ct. 1967), cert. den. 388 U. S. 918, 87 S. Ct. 2137, 18 L. Ed. 2d 1362 (1967).

Counsel has attempted to analogize this ease to Caldwell v. United States, 434 F. 2d 1081 (9 Cir. 1970), cert. grtd., 402 U. S. 942, 91 S. Ct. 1616, 29 L. Ed. 2d 109 (1971), which dealt with the First Amendment’s guarantee of freedom of the press in the setting of a reporter’s refusal to disclose the confidential sources of his information. It is claimed that to compel Sister Margaret to testify before the grand jury would have the same “chilling effect” on her right to a free exercise of her religion as would have been visited upon the right to freedom of the press in Caldwell were the reporter there compelled to reveal his sources. Counsel draws a long legal bow in so arguing. No one is denying Sister Margaret her right to a free exercise of her religion. We perceive no equation, either factual or legal, between Caldwell and the present ease.

The order under review is affirmed.