text:
    IN THE MATTER OF THE PETITION OF FIFTEEN REGISTERED VOTERS OF THE COUNTY OF SUSSEX ON BEHALF OF JOAN M. FLANAGAN, CANDIDATE FOR THE OFFICE OF COUNCILMAN IN AND FOR THE TOWNSHIP OF SPARTA IN THE COUNTY OF SUSSEX.
    Superior Court of New Jersey Appellate Division
    Argued July 9, 1974
    Decided July 12, 1974.

      Before Judges Ekitz, Lthoh and Michels.

      Mr. Craig U. Dana argued the cause for appellant Harry C. Wright (Messrs. Morris, Downing & Sherred, attorneys; Mr. David L. Jubanowsky, on the brief).

      Mr. Emanuel A. Honig argued the cause for petitioners-respondents (Messrs. Honig and Honig, attorneys; Mr. Richard E. Honig, on the brief),
   The opinion of the court was delivered by

Fritz, J. A. D.

At issue in this election dispute is whether 294 write-in votes for a candidate for council in Sparta Township should be counted for Harry C. Wright, an active candidate for the office, as the board of canvassers and county board of elections decided, or should be disregarded, as the judge below determined, because they were voted only for “Wright” or “Mr. Wright” and without a first name or initial.

The facts are undisputed. The final results of the election, held May 14, 1974, (after a recount) were certified according to the following tabulation: George Dykstra, 1,744; Bichard Hunsicker, 1,523; Harry Wright, 1,193; Joan M. Elanagan, 1,161; Charles Eletcher, 1,022; all others, 53. Among the “others” were votes for C. Wright, 3; George Wright, 4; Erank Wright, 1; Charles Wright, 1; W. Wright, 1; Bichard Wright, 1; Henry Wright, 1; and Harry B — t [sic], 1. Since there were three vacancies, Dykstra, Hun-sicker and Harry Wright were declared the winners.

The remaining significant facts can be readily synthesized: Other than Harry C. Wright and his wife, there are eight registered voters in the township whose last name is Wright. There is no record among the registered voters in the township of any named Frank, Richard, Henry, George or William Wright. Nobody in the township named Wright campaigned for the office except Harry Wright. There is no suggestion in the record that any Wright other than Harry sought the office or, indeed, authorized a candidacy, either directly or indirectly.

On the other hand, Harry Wright campaigned vigorously for a write-in vote, from the day he was denied a place on the printed ballot when his nominating petitions were held to be untimely filed, through an unsuccessful application to the courts to be permitted to use stickers, up to the day of the election. His picture appeared, with that of the other four candidates whose names appeared on the ballot, in a leading newspaper article on Sunday two days prior to the election. Most significantly, he campaiged in tandem with Dykstra and Hunsicker, in opposition to Flanagan and Fletcher. The campaign advertising of Dykstra and Hunsieker inevitably embraced Wright in the coalition. It would appear that in none of the political advertising did Dykstra and Hunsicker join without equal billing for Harry Wright. A published “open letter” endorsement by the state senator from the 15th Legislative District extolled “the qualifications and stated aims of the candidates” Hunsicker, Dykstra and Harry Wright, describing the challenge facing the latter as “probably the most difficult” because he was a write-in candidate. Unfortunately, Harry Wright’s campaign suggested, on frequent occasions, the mnemonic, “Write in Wright.”

In such circumstances we are persuaded beyond any doubt that the characterization by the trial judge of the questioned 294 votes as “ambiguous” and their allocation to Harry Wright as “arbitrary” disregards the real world practicality of the situation.

There is evidence of four write-in votes cast for George Wright, eoncededly not registered in Sparta. There is evidence of three such votes for C. Wright and one vote for Charles Wright. None other of the Wrights (or R — t) received more than one vote. Petitioners argue that one vote constitutes its recipient a candidate. No authority is offered for this dogma. We reject the argument as an absolute proposition because the ultimate conclusion as to candidacy vel non depends so intimately on the circumstances of a given case. We can contrive hypotheses in which one vote might well constitute its recipient a candidate. The converse is as easily conceived. Here concededly no Wright other than Harry sought the office. There is no suggestion whatsoever (leaving aside the 294 votes for the moment) that any of the other Wrights was the subject of any elective desire beyond an isolated wayward expression, a self-cast vote, or a prank. Accordingly we find the statement of the court below that “This is certainly not a case where there is only one candidate for the office in question whose surname is the same or essentially the same as the one written-in by the voter,” one with which we cannot concur, which we believe is unsupported in the record, and which, in our judgment, ignores the hard realities of the situation.

No evidence whatsoever appears of more than that lonely one (or not more than four in the case of George, the ineligible) vole for any Wright other than Harry (still leaving aside for the moment the 294 votes). In these circumstances we decline to share the apparent concern of the trial judge that some of the 294 votes must necessarily have been meant for the “other” Wrights. We are persuaded that in the situation here the probability almost to a certainty is that those intending to cast the isolated vote for one other than Harry Wright identified their selection by something other than a surname in view of the “Write-in Wright” campaign. It is far more likely that some of the “other” Wright votes (not counted for Harry) were in fact cast for him than it is that any of the 294 were for one other than him.

A number of earlier cases dealing with the absence or abridgement of given names need no longer be considered in view of the enactment of L. 1930, c. 187, par. 205, to be found now in N. J. S. A. 19:16-4 in which the following appears :

No ballot cast for any candidate shall be invalid by reason of the fact that the name of such candidate may be misprinted, or his 'Christian name or his initials may be omitted.
No ballot cast for any candidate shall be invalid by reason of the use of any paster permitted by this Title on which the title of office may be printed or the name of such candidate may be misprinted or part of his Christian or surname or initials may be omitted, or because the voter in writing the name of such candidate may misspell the same or omit part of his Christian name or surname or initials.

Clearly, the Legislature has mandated a search for the real intention of the voter no matter how crudely it is expressed, provided only, of course^ that there is a reasonable expression of that intent on the ballot. In re Klayman, 97 N. J. Super. 295 (Law Div. 1967). We correctly strive to prevent disenfranchisement, abhorred in the law. In re KeoghDwyer, 106 N. J. Super. 567, 576 (Law Div. 1969), aff’d o. b. 54 N. J. 523 (1969); In re Klayman, supra.

Further, we have matured beyond the holding of Weeks v. Kip, 64 N. J. L. 61 (Sup. Ct. 1899), suggesting that tihe intent of the voter may not be gleaned from extrinsic evidence. To be sure there must be an expression of intent on the ballot, but the ballot is to be read in the light of surrounding circumstances, evidence of which is admissible. Gulino v. Cerny, 13 Ill. 2d 244, 148 N. E. 2d 724 (Sup. Ct. 1958); see generally 26 Am. Jur. 2d, Elections, § 271 at 98.

Varying extrinsic factors have been considered by the courts in searching for the voter’s intent. Whether there are other candidates of the same name is one of these, as is the extent and vigor of the campaign carried on by the contestant in its likelihood of bringing his name to the attention of the voters. Beck v. Cousins, 252 Iowa 194, 106 N. W. 2d 584 (Sup. Ct. 1960). In a word, reliable evidence which, in the light of human experience might reasonably be expected to demonstrate intent expressed on the ballot but less than perfectly, should be searched to effectuate the voter’s wish and preserve the franchise.

The judge below correctly noted the rule by observing that “the amount of notoriety which accompanies a candidate’s campaign may be considered in determining the intention of the ambiguous ballot.” We believe he erred in at least three respects, however, in his implied view that to assign these 294 votes to Harry Wright “merely because he campaigned more vigorously than other ‘Wrights’ ” (emphasis added) constituted arbitrary and illegal action. First, Harrjr Wright indeed campaigned more vigorously than “other ‘Wrights’” because no other Wrights campaigned at all. To the extent this expression implies there were other campaigning Wrights it is entirely unsupported by the record. Second, read, in context, the statement supports as a conclusion of the trial judge that there were in fact other Wright candidates. As related above, we do not equate the casual vote —• or even four — with candidacy. We are of the opinion that the record supports the conclusion that there was only one candidate named Wright — Harry Wright -— and that any other conclusion is unsupported by the record. Finally, we are of the judgment that under the particular circumstances of this case, including the nature of the campaign and the fact that Harry Wright’s teammates finished first and second, the “mere” circumstance of the unique campaign activity and coalition might well serve by itself as ample to demonstrate the intent of these 294 voters to vote for Harry Wright. Coupled with the absence of any other Wright campaign and the sparseness to the disappearing point of votes for any other named (or initialled) Wright, we are firmly convinced that all of these 294 votes were intended for Harry Wright. See Gulino v. Cerny, supra; Beck v. Cousins, supra; Appeal of McCracken, 370 Pa. 562, 88 A. 2d 787 (Sup. Ct. 1952); Annotation, “Validity of write-in vote where candidate’s surname only is written in on ballot,” 86 A. L. R. 2d 1025 (1962).

The case before us presents a remarkable similarity to that considered in Dupin v. Sullivan, 355 S. W. 2d 676 (Ky. Ct. App. 1962), where an election turned on the validity of write-in votes bearing only a surname, the write-in candidates having been active campaigners. While the ease can be distinguished on the ground that nothing in the opinion speaks of others in the community with' the same name as the write-in candidates (but they “were the only ones by those names who were active contestants for election”), and we have doubt with regard to' the expression there that it was necessary for the dissidents to identify the voters who east the bad votes (but see Application of Murphy, 101 N. J. Super. 163 (App. Div. 1968), certif. den. 52 N. J. 172 (1968), noting exception at 101 N. J. Super. 168), we share the obvious expression therein of the imposing significance of the campaign activity. As was held in similar context in Appeal of Mc-Cracken, supra, that which “common sense and the obvious facts dictate” must not be ignored by a relegation of vote counting to “a humanized adding machine.” (88 A. 2d at 788.)

The standard to be applied is not one of absolute sureness. Reasonable certainty is enough. Petition of Wade, 39 N. J. Super. 520 (App. Div. 1956). Here our conviction far exceeds this minimum.

State v. Johnson, 42 N. J. 146 (1964) is apposite. There the following appears:

But if the appellate tribunal is thoroughly satisfied that the finding is clearly a mistaken one and so plainly unwarranted that the interests of justice demand intervention and correction * * *, then, and only then, it should appraise the record as if it were deciding the matter at inception and make its own findings and conclusions. While this feeling of “wrongness” is difficult to define, because it involves the reaction of trained judges in the light of their judicial and human experience, it can well be said that that which must exist in the reviewing mind is a definite conviction that the judge went so wide of the mark, a mistake mnst have been made. This sense of “wrongness” can arise in numerous ways —■ from manifest lack of inherently credible evidence to support the finding, obvious overlooking or underevaluation of crucial evidence, a clearly unjust result, and many others. This, then, is when and how the permissive power of R. R. 1:5 — 4(b) should be utilized by the first appellate tribunal and is what our prior cases mean no matter how they have expressed it. [at 162]

In this matter we hold to a “definite conviction that the judge went so wide of the mark, a mistake must have been made.” We experience the feeling of wrongness, the sense of the unjust result. Dolson v. Anastasia, 55 N. J. 2 (1969).

We reverse and enter judgment declaring Harry Wright elected.

      Tlie word comes from the Latin candidatus and this from the white toga worn by those in ancient Rome who sought after an office. Webster’s Third Neto International Dictionary, 325 (1971).

        State ex rel. O’Brien v. Bayonne Board of Councilmen, 30 A. 430 (Sup. Ct. 1894; not officially reported); Weeks v. Kip, 64 N. J. L. 61 (Sup. Ct. 1899); Davis v. Bell, 27 N. J. L. J. 76 (Cir. Ct. 1904; not officially reported).


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    ANTHONY SCALISE, PLAINTIFF-RESPONDENT AND CROSS-APPELLANT, v. THE CENTRAL RAILROAD COMPANY OF NEW JERSEY, DEBTOR IN REORGANIZATION AND THE TRUSTEE OF THE PROPERTY OF THE CENTRAL RAILROAD COMPANY OF NEW JERSEY, JOHN E. FARRELL, DEFENDANTS-APPELLANTS AND CROSS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued May 21, 1974
    Decided July 15, 1974.

      Before Judges Kolovsky, Eritz, and Demos.

      Mr. William F. Tuohey argued the cause for appellants and cross-respondents (Messrs. Milton, Keane & Brady, attorneys) .

      Mr. Francis Sorin argued the cause for respondent and cross-appellant.
   Per Curiam.

This negligence action, brought pursuant to the Eederal Employers Liability Act, in which a violation of the Safety Appliance Act is alleged, resulted in a verdict for plaintiff in the amount of $36,000. Both sides moved for a new trial, which motions were denied. Defendants appeal, asserting that the verdict was the result of “mistake, passion, prejudice or partiality,” and claiming reversible error in the judge’s charge. Plaintiff cross-appeals, urging that because of a failure of an automatic coupler to function, the negligence of defendant railroad constituted a violation of the Safety Appliance Act, and he should not have been burdened with a contributory negligence charge nor have his verdict diminished by the application of a comparative negligence computation.

Defendants’ claim of mistake in the verdict is bottomed on the quantum of the amount awarded. It is notable here that defendants utilized the services of several doctors in the examination and treatment of plaintiff following the accident. None of these was produced at the trial to testify, nor did defendants offer any other medical proofs. In the absence of proofs to contradict plaintiff’s evidence, medical and otherwise, relating to his injuries, we cannot say that the verdict was so excessive that a new trial should he required. Andryishyn v. Ballinger, 61 N. J. Super. 386, 393-395 (App. Div. 1960), certif. den. 33 N. J. 120 (1960). We do not perceive a miscarriage of justice. Dolson v. Anastasia, 55 N. J. 2 (1969); R. 4:49-1 and 2:10-1.

Defendants complain of the failure of the judge below to charge, as they had requested, that any damages awarded “will not be subject to Federal Income Taxation.” The request was submitted on the authority of Domeracki v. Humble Oil, 443 F. 2d 1245 (3 Cir. 1971), cert. den. 404 U. S. 883, 92 S. Ct. 212, 30 L. Ed. 2d 165 (1971), in which the following appears:

Given the absence of complications that an instruction would engender, the tax consciousness of the American public, and the general lack of knowledge about the statutory exclusion, we hold that in personal injuries actions the trial courts in this Circuit must, in the future, upon request by counsel, instruct the jury that any award will not be subject to federal income taxes and that the jury should not, therefore, add or subtract taxes in fixing the amount of any award. [443 F. 2d at 1251].

At the outset, we observe that we are not bound by the decision. State v. Speciale, 96 N. J. Super. 1, 7 (App. Div. 1967), certif. den. 50 N. J. 291 (1967). We might well avoid the issue by doing what was done in Domerachi: rejecting the argument for reversal on the ground that here, as there, there is no evidence that the jury was motivated, in its judgment, to increase its award “based on mistaken considerations of tax consequences.” (443 F. 2d at 1252). But we think the Domerachi rule is not the proper one, and that the judge below was correct in his refusal to charge the request. The “absence of complications that an instruction would engender,” assumed in Domerachi, gives us pause, and the conjecture which such an instruction might invite or suggest in the mind of a juror, who has also been told that damages may be awarded for lost wages, seems cause enough for a rejection of the rule. Cf. Botta v. Brunner, 26 N. J. 82 (1958).

It is not without significance in our judgment, as Domerachi acknowledges, that the view there expressed is “new” among the circuits, that at least three circuits disagree with that view, and that the Domerachi “position we adopt has been accepted by only a handful of state jurisdictions.” As a matter of fact, the majority disagrees. Gorham v. Farmington Motor Inn, Inc., 159 Conn. 576, 271 A. 2d 94 (Sup. Ct. Err. 1970); Raines v. N. Y. Cent. R. R. Co., 51 Ill. 2d 428, 283 N. E. 2d 230 (Sup. Ct. 1972), cert. den 409 U. S. 983, 93 S. Ct. 322, 34 L. Ed. 2d 247 (1972); Henninger v. Southern Pacific Co., 250 Cal. App. 2d 872, 59 Cal. Rptr. 76 (Ct. App. 1967); Stallcup v. Taylor, 62 Tenn. App. 407, 463 S. W. 2d 416 (Ct. App. 1970), see Annotation, “Propriety of taking income tax into consideration in fixing damages in personal injury or death action,” 63 A. L. R. 2d 1393. We hold not only that there was no error, but that such a charge is improper.

The remaining issues, both on the appeal and cross-appeal, concern the judge’s treatment' of the equipment causing the accident: an automatic coupling device on a railroad car, and a chain used during its alleged inoperability. Defendant asserts that the trial judge erroneously found the chain to be a part of the automatic coupling device, and in charging the jury to this effect confused the jurors. Plaintiff urges that the mere failure of the coupler to function was a violation of the Federal Safety Appliance Act sufficient to remove contributory negligence from the case, and that therefore a verdict diminished by a percentage allowing for the contribution of plaintiff’s negligence is improper. We have examined the record carefully, including the charge as a whole (State v. Wilbely, 63 N. J. 420 (1973)). We are content that the proper issues were clearly and correctly submitted, that the jury well understood the nature of these issues and that its verdict reflected his understanding, and that the verdict should not be disturbed.

Affirmed. No costs.


author: Lynch, J. A. D.

text:
    FEDERAL PAPER BOARD CO., INC., PETITIONER-APPELLANT, v. BOROUGH OF BOGOTA, RESPONDENT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued January 21, 1974
    Remanded March 26, 1974—
    Decided July 15, 1974.

      Before Judges Collester, Lynch and Michels.

      Mr. Martin T. Durkin argued for appellant (Messrs. Durkin & Foerst, attorneys).

      Mr. Thomas A. Tinghino argued for respondent.
   The opinion of the court was delivered by

Lynch, J. A. D.

Appellant-taxpayer appeals from a decision of the Division of Tax Appeals (Division) which sustained the tax rate on tangible business personalty in Bogota as fixed by the Bergen County Tax Board at $13.64 for the tax year 1965. Appellant contends that the county hoard erred in arriving at the tax rate because it used as a base for calculation thereof the value of the total assessments of business personalty for the tax year 1963, in applying the statutory formula mandated by L. 1964, c. 141 (N. J. S. A. 54:4-9 et seq.), rather than adjusting said value in accordance with reductions thereon later obtained on appeal and resulting in less taxes “collected.” It is taxpayer’s contention that if such reductions had been recognized, and applied in the calculation, that rate would be $5.95 and would result in a tax bill to taxpayer in the amount of $31,315, rather than the $71,789 which was billed in applying the $13.64 rate.

The problem presented requires interpretation of the interim legislation contained in L. 1964, c. 141, which established the method of calculating the tax rate to be applied on tangible business property for the tax years 1965 and 1966. Here we are concerned with that for the year 1965. Section 2 of the statute provided:

The adjusted personalty tax rate for each taxing district shall be determined as follows by the respective county boards of taxation:
a. First, for the tax year 1965, for each taxing district there shall be derived a fraction in which 1963 business personal property taxes in the district are the numerator and in which all 1963 property taxes in the district, real and personal, are the denominator. Second, the fraction so determined in each district shall be multiplied by the total property tax levy in the district for the tax year 1965. Third, the dollar figure so determined shall be divided by the 1965 total taxable value of business personal property in the district and the resulting dollar figure shall be the 1965 adjusted personalty tax rate expressed in mills per dollar of assessed value; * * *.

Thus, the statutory formula here included, among other considerations, the factor of the 1963 business personalty property taxes and the 1963 taxes on all property, real and personal, in a tax district. Also, section 7 of the 1964 act prescribed a report by the Director of the Division of Taxation (Director). Section 7 read:

The Director oí the Division of Taxation shall compile and publish and distribute a report, in such form and detail as he shall prescribe, indicating real and personal property taxes levied and collected throughout all taxing districts for the tax year 1963 and each year thereafter which shall be used by county boards of taxation and other oflieials in determining and reviewing adjusted personalty tax rates. LFmphasis added]

The emphasis is ours, but the language emphasized creates the issue as argued by taxpayer.

In his report dated December 16, 1964 the Director indicated that the business personal property taxes in Bogota for 1963 totaled $251,616. Taxpayer contends that the 1963 personal property tax actually collected by Bogota was only $123,831.29. This lower figure of such taxes actually collected resulted because other large Bogota taxpayers, Brewster & Son, Inc. and Brewster Equipment Co., after appeal, had obtained reductions in their business personalty assessments for the year 1963 in the amount of $1,695,000. Since the total of such assessments in Bogota had amounted to $3,730,331, the reductions obtained by the Brewster Companies reduced the business personalty assessments by almost 45%, and resulted in the consequent reduction in the amount of business personal property taxes actually collected.

Taxpayer’s argument is based upon the wording of section 7 to the effect that the report of the Director of the Division of Taxation must indicate real and personal property taxes “levied and collected” (emphasis ours) in a taxing district for the year 1963; that the phrase means that the report shall indicate the actual taxes collected for that tax year rather than those merely levied. It is contended that the Director’s report of December 16, 1964 was in error in that it did not indicate the taxes which had been collected for the tax year 1963, but rather the taxes which were levied based upon the original assessments in Bogota for that year.

The Division rejected taxpayer’s contention, and held that a reasonable construction of the relevant statute required that the Director would have to use a formula that could apply to every taz district in the State, and this could only be done if he were to report on the amount of taxes levied and to assume that they were collected, or were collectible. It followed, said the Division, that the county board, in accepting the Director’s table in its fixing of the tax rate, would likewise have to construe the statute in that fashion.

After oral argument herein we remanded the matter to the Division, essentially for findings of fact as to when, and by wlhat method, the settlements with the Brewster companies were effected. The purpose of the remand was to attempt to throw some light on the practical problems confronting the Director of Taxation in preparing his report as provided in N. J. S. A. 54:4-9(d), and the county board in fixing the rate. We had in mind the possibility, for example, that such reductions had not been effected by the time the Director compiled his report and, indeed, by the time the county tax board fixed the tax rate for the year 1965, and thus it would not know what taxes had been actually collected. After remand the Division found that there was no written evidence of a judgment or stipulation being filed with either the Bergen County Board of Taxation or the Division of Tax Appeals. A search of the records in both tribunals failed to produce conclusive proof as to when, or 'how, the Brewster reductions were effected. It was determined, however, that, pursuant to N. J. S. A. 54:4-49, in the year 1969 the Town of Bogota received a credit totaling $14,334.62 on account of county taxes because of the reduction in the assessments of Bogota’s personal property for the year 1963. This was the extent of recoupment for the 1963 reductions which the statutory scheme provides. In conclusion, the Division found that no judgment was ever rendered with respect to the Brewster assessments and, as late as 1968, the record on those appeals was still open on the Bergen County Tax Board files. The Division concluded its findings by saying that: “In view of the above facts it is obvious that the County Board had no knowledge of the Brewster Co. and Bogota maneuvering [sic] at the time it was preparing to set the tax rate for personal property in the subject year.” There was substantial credible evidence to support that finding and we accept it. State v. Johnson, 42 N. J. 146 (1964).

Statutes must be read sensibly and all rules of construction are subordinate to the proposition that a statute will not be construed to lead to absurd or anomalous results. Marranca v. Harbo, 41 N. J. 569, 574 (1964). See also, State v. Gill, 47 N. J. 441 (1966). Every effort should be made to avoid such results. Union Co. Bd. of Freeholders v. Union Co. Park Comm’n, 41 N. J. 333 (1964). Even specific language may be avoided to escape a result it would be inconceivable to think the Legislature intended. Sandler v. Springfield Tp. Bd. of Adjustment, 113 N. J. Super. 333, 345 (App. Div. 1971).

The findings of fact by the Division serve only to demonstrate that the taxpayer’s argument, i. e., that only the taxes actually “collected” for the tax year 1963 are to be considered in calculating the tax rate under L. 1964, c. 141, would lead to an unreasonable construction of the act, productive, indeed, of absurd results.

If the statute were so construed at the time the county board calculated the tax rate, namely, on or before April 10, 1965, it could not have known what taxes had actually been collected or would be collected for the tax year 1963. No part of the statutory scheme imputes such knowledge to the county tax board except, as taxpayer argues, the report of the Director of Taxation pursuant to N. J. S. A. 54:4-9(d). But neither could he have known such information at the time he prepared his report. The court takes notice of the fact that tax appeals in the Division, and through appeals to the courts, have taken many years, and it is not until the the conclusion of such litigation that the amount of taxes actually “collected” for a particular tax year can be ascertained. We cannot impute to the Legislature an intent to require the Director, in compiling his report, to do what it was impossible for ‘him to 'do, i. e., determine the amount of taxes actually collected for a particular tax year.

We further determine that N. J. S. A. 54:4r-9(d) directs that the Director’s report shall be used only as one of the “tools” to be used by the county tax board in determining adjusted personalty tax rates. The operative portions of the statute in the fixing of the rate are contained in N. J. S. A. 54:4-9 (a) and (b). In subsection (a) the reference is not to taxes “levied and collected” for 1963. but rather “business personal property taxes” and “all 1963 property taxes in the district, real and personal.” Further, the fraction to be used is to be multiplied by the “total property tax levy.” (Emphasis added). Finally, the dollar figure so determined is to be divided by the 1965 total “tax appeal value of business personal property.”

One contemplates how often, after a particular tax year, the amount of taxes actually collected for that year changes by reason of subsequent judgments on appeals. Again reason dictates that the taxpayer’s construction of the statute leads to absurd results. It must be apparent that with each change in dollars collected the application of the formula provided in N. J. S. A. 54:4-9 (a) would result in different rates as reductions on appeal were granted. Indeed different rates would be applied as against different taxpayers — those who had paid taxes before the particular reductions and those after such results were reached. Surely such a construction of the statute is, to say the least, unreasonable — we think, absurd. We cannot, and do not, so construe it.

Taxpayer also contends that the calculation of the tax rate adopted by the county board of taxation is “unconstitutional.” We find no merit whatever in the contention.

The judgment of the Division of Tax Appeals is affirmed.

      A procedure which we do not approve.


text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. ANTONI ROSZKOWSKI, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued June 11, 1974
    Decided July 17, 1974.

      Before Judges Kolovsky, Fritz and Crane.

      Mr. Barry B. Goldman argued the cause for appellant.

      Mr. Joseph J. Rodgers, Deputy Attorney General, argued the cause for respondent (Mr. William F. Hyland, Attorney General of New Jersey, attorney).
   Per Curiam.

Defendant was indicted for possession of lysergic acid diethylamide (LSD) with intent to distribute it and for distribution of the same substance on May 27, 1971. The trial court granted an order requiring the State to furnish defendant the identity of the informant who was present at the time of the alleged transaction. This court, on a previous appeal, on the authority of Fvid. R. 36, reversed the order of the trial court on the representation of the prosecutor, which was not disputed by defendant, that the in-. formant was not an active participant in the transaction, his participation being limited to introducing defendant to the state trooper who procured the drugs. Defendant nevertheless, by means unknown to us, learned the identity of the informant and subpoenaed him to testify at the trial.

When the informant, one Martin Skulnick, appeared in court at the trial, he was sent at the direction of the prosecutor to the witness waiting room in the prosecutor’s office. When he was called as a witness the prosecutor announced to the court, out of the presence of the jury, that Skulnick intended to assert his privilege against incrimination. The trial court hold a hearing in camera during which the witness himself asserted the privilege which the court sustained. Skulnick was not permitted to testify. Defendant was found guilty of both counts of the indictment.

On appeal the defendant asserts that the prosecutor violated professional standards of conduct resulting in the denial of a right to a fair trial, that the suppression of the testimony of the informant was error, and that the State failed to establish a satisfactory chain of evidence.

We have no difficulty with the last point. The State introduced testimony to show that Trooper Bunting who procured the drug from defendant delivered it to a state police detective who first locked it in a cabinet in his home and then delivered it to the state police laboratory where it was received and processed in the ordinary course of business. There was no suggestion of irregularity or tampering, thus the State has sustained its burden. State v. Brown, 99 N. J. Super. 22, 27 (App. Div. 1968), certif. den. 51 N. J. 468 (1968).

Nor do we find any professional irregularity in the conduct of the prosecutor with regard to the previous appeal. We do however disapprove of the cavalier manner in which the prosecutor attempted to assert control over the informant witness by ushering him out of the courtroom to a witness waiting room in the prosecutor’s office. It is not shown that defense counsel was denied access to him but we point out that witnesses are not the private property of any party to litigation and access to interview them should not be frustrated. Further, we disapprove strongly of the prosecutor’s conduct during Skulnick’s examination on voir dire in at least implicitly, if not explicity, threatening Skulnick with prosecution.

The substance of the testimony of Skulnick on voir dire, under threat of incarceration by the court, was to the following effect. Skulnick went to high school with the defendant. On May 27, 1971 he was working with the State Police and especially Trooper Bunting. He knew Trooper Bunting by the name of “Bo.” He was fairly positive that he was present at a Hess gas station in Lakewood with Bunting when a meeting between them and defendant took place. The conversation between Trooper Bunting, the defendant and him turned to drugs. Defendant passed a substance into the car. He could not remember whether or not he physically received it.

We are of the opinion that the assertion of the privilege of self incrimination should not have been sustained. Skulnick was working with the state police in undercover work as an informant. As such his activities were carried out at the behest of and for the benefit of the State. In such a capacity he was not acting as an accomplice of the defendant. United States v. Becker, 62 F. 2d 1007 (2 Cir. 1933); Tibbetts v. State, 494 S. W. 2d 552, 553 (Tex. App. 1973); Pitts v. State, 291 Ala. 136, 279 So. 2d 119, 120 (Sup. Ct. 1973); State v. Ballesteros, 100 Ariz. 262, 413 P. 2d 739, 742 (Sup. Ct. 1966); State v. Wheelhouse, 6 Or. App. 151, 486 P. 2d 1292-1293 (Ct. App. 1971); State v. Wiese, 182 N. W. 2d 918 (Sup. Ct. Iowa 1971), and since his participation in the criminal events was the product of creative activity on the part of law enforcement officials he would be entitled to assert a valid defense of entrapment to any charges which might be brought against him arising out of the transaction. State v. Dolce, 41 N. J. 422 (1964). We hold therefore that under the circumstances here presented, the informant was clothed with a limited immunity from prosecution by virtue of the status of his activity on behalf of the State. Cf. Cashen v. Spann, 125 N. J. Super. 386 (App. Div. 1973).

It follows that the assertion of the privilege against self incrimination was not available to Skulnick and defendant should have been permitted to interrogate him about his participation in the transaction with the defendant. Defendant was thus deprived of the opportunity to present witnesses in his favor as guaranteed by the Sixth Amendment and the New Jersey Constitution, Art. I, ^[10.

The judgment of conviction is reversed and the case is remanded for a new trial.


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

text:
    JOHN PANEPINTO ET AL., PLAINTIFFS-RESPONDENTS AND CROSS-APPELLANTS, v. EDMART, INC. AND APKEL BUILDING CORPORATION, DEFENDANTS, AND CITY OF BAYONNE AND HENRY E. KRUSE, DEFENDANTS-APPELLANTS AND CROSS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued May 21, 1974
    Decided July 18, 1974.

      Before Judges Kolovsky, Era and Demos.

      Mr. M. Stanley Susskind argued the cause for appellants.

      Mr. Marvin S. Davidson argued the cause for respondents (Mr. Francis P. Meehan, Jr., attorney).
   The opinion of the court was delivered by

Kolovsky, P. J. A. D.

In 1965 and early 1966 plaintiffs purchased from defendant Edmart, Inc. one-family homes in a building development in Bayonne known as “Shoreerest Homes.” Edmart, Inc. had applied for, and had obtained in September 1964, subdivision approval for the development from the Planning Board of the City of Bayonne after posting a performance bond of $100,000 to assure the installation by it of various improvements, including streets, curbs, sidewalks, catch basins, fire hydrants and sewers.

On several dates beginning in May 1966 — but all before the City of Bayonne adopted a resolution accepting the sewer lines in the development — the sewer lines backed up during heavy rainstorms, causing damage in the basements of plaintiffs’ homes. The fault was found to be in the inadequate depth of the sewer lines as compared with the depth of plaintiffs’ homes.

The city, after an investigation, instituted an action against the developer and the surety on its performance bond. That action was settled on terms which called for and accomplished the elimination of the problem by the installation of new sewer lines at a lower depth.

Plaintiffs instituted this action to recover the damages which they allegedly had suffered by reason of the floodings which had occurred prior to the installation of the new sewer line. Joined as parties defendant were: the developer, Edmart, Inc.; its “engineer and designer of the development,” one Curley; its general contractor, Apkel Building Corporation (Apkel); the City of Bayonne and the city engineer, Henry E. Kruse.

After trial before the court without a jury a judgment was entered awarding plaintiffs a total of $35,629.44 against the City of Bayonne and Kruse, its engineer, and a total of $51,840.17 against Edmart, Inc. and Apkel Building Corporation.

Defendants Bayonne and Kruse appeal from the judgment against them. Defendants Edmart, Inc. and Apkel do not appeal. Plaintiffs, by a cross-appeal directed only to Bayonne and Kruse, challenge the allocation of damages among •the several defendants and the refusal of the trial court to award them damages “for mental anguish or physical pain or discomfort by reason of the repeated flooding.”

However, we do not reach the merits of the cross-appeal since we are satisfied that neither the city nor its engineer should have been held liable in damages to plaintiffs and that the judgments against them must be reversed.

The trial court imposed liability on the municipal defendants because it found that the sewer system shown on the plans submitted by the developer to the planning board and the installation thereof were defective and concluded that the municipal defendants were chargeable with “affirmative” negligent conduct for which — under the purported authority of Fagliarone v. North Bergen Tp., 78 N. J. Super. 154 (App. Div. 1963), certif. den. 40 N. J. 221 (1963) — they could be held to respond in damages to plaintiffs.

The court recognized that neither of the municipal defendants had either designed or installed the sewer system. It explained its finding of liability thusly:

However that may be, the facts of this case bespeak of an affirmative action on the part of the municipality even though it did not design or install the system. We need go no further than the affirmative action of its Planning Board in approving the subdivision plan with its sewer system which it knew or should have known, with the exercise of reasonable care and diligence, was improperly designed and which was not capable of handling the volume of drainage and sewage required for the subdivision. In granting its approval, it was acting as affirmatively as the Township of North Bergen did in Eagliarone in bringing about the damage which ensued on the property owners.
Further, its failure to inspect and super-vise the installation was, in the contention of this case, an affirmative wrongdoing — the kind of positive misfeasance which has been the foundation of municipal liability in negligence law.
:¡s i> * * * s!” si'-
In the case at hand, however, we are dealing with what is a public improvement located on public property and which is intended to become public property and operated and maintained by the municipality. The home owner is certainly in no position to pursue the design adequacy or to supervise the installation of a sewer system or to establish standards and specifications to be followed by one who becomes obligated to make the installations by reason of a municipal subdivision ordinance.
That function is particularly the responsibility of the municipality.
I conclude, therefore, that the City of Bayonne is liable to the plaintiffs for all damages caused by the back-up of water and sewage into their homes for the period of their occupancy and ending with the completion, with the replacement of the sewer system in or about November of 1968. * * !r
What has been said of the liability of the municipality applies with even greater force to that of the defendant Kruse. He failed to perform the duty cast upon him not only by the accepted standards of practice within his profession, but by the very terms of the subdivision ordinance. He was, in short, negligent in the performance of his duties, and he is liable to the plaintiffs who are the reasonably foreseeable victims of that negligence.

Fagliarone v. North Bergen Tp., supra, furnishes no support for the trial court’s conclusion. In that case the municipality itself planned, constructed and maintained a sewer line which was found to he defective and inadequate so that flooding resulted. The court ruled that what was shown was a “negligent act of commission” rather than a mere “error in judgment,” so that plaintiffs would be entitled to some remedy. But it made no determination as to what that remedy would be, saying:

In any event, we are not here concerned with the problem of remedy; the sole question before the court is defendant’s alleged negligence and liability. The litigation has not arrived at a point where the proper remedy for the existing condition must be determined. That remedy will be fashioned at the second stage of this action, when the court deals with the questions of the scope of the mandatory injunction and the damages which plaintiffs demand, [at 157]

Before leaving our consideration of Fagliarone, it may be noted that in Barney's Furniture Warehouse v. Newark, 62 N. J. 456 (1973), the court found it not necessary to express an opinion “as to the soundness of the distinction drawn in [Fagliarone] between negligence and an 'error in judgment.’ ” (At 467)

' In Barney’s the court reversed a judgment against the city for damages sustained by properties in Newark caused by flooding due to inadequate sewer facilities, holding that the alleged default of the city in failing to provide adequate sewerage was "of a nature involving exercise of legislative judgment and discretion” (at 470) and so did not "permit the sanction of an imposition of damages for the result of its exercise.” (At 469)

In the course of its opinion in Barney’s the court referred to Harrington v. Woodbridge, 70 N. J. L. 28 (Sup. Ct. 1903), the “leading case in this jurisdiction” relating to "municipal tort liability for flooding or inadequate drainage arising out of the operation of sewer systems.” (At 464 of 62 N. J.)

In Harrington the declaration sought damages from defendant municipality because allegedly the public sewer line with whidh plaintiff’s house was connected by a lateral pipe lacked a proper pitch or fall or capacity, with the result that the cellar of plaintiff’s house was periodically flooded with water and sewage. In sustaining a demurrer to the declaration the court said — in language quoted with approval in Barney’s:

* * * Consequently, the pith of the complaint against the defendant is that it failed to construct the public sewer with such capacity and fall as would enable the plaintiffs safely to connect their cellar with it.
This complaint is without legal basis. The general doctrine on this subject is that in devising a plan for the construction of public sewers the public authorities discharge a quasi judicial duty, involving the exercise of judgment and discretion with regard to general convenience, and that their wisdom in the performance of that duty is not subject to review in a private suit brought to recover damages because of their error. They owe to no individual the duty of devising such a plan as will afford to him sufficient drainage. [70 W. J. L. at 29]

Here there is even, less justification for imposing damage liability on the municipal defendants than there would have been in Harrington and Barney’s. Here, tflie municipal defendants did not plan or install the sewer systems. That was done by the developer from whom plaintiffs bought their houses and the sewer system was not accepted by the municipality until after the floodings here involved and after the deficiencies in the sewer system had been corrected.

We may accept the trial court’s finding that the city engineer and the city’s planning board were negligent in approving and accepting the plans submitted by the developer and in their inspection and supervision of the installation of the original sewer.

However, the decisions thus made in conceded good faith by the public officials involved the performance and exercise of discretionary quasi-judidal functions and duties, and so afford no basis for imposing liability in damages either on the engineer or his employer, the city, even if they or either of them acted negligently in the performance of those functions. Plaintiffs have cited us no case which has imposed liability on a city or its engineer in similar circumstances. On the contrary, the cases and authorities dealing with the question whether tort liability should be imposed on governmental units or their employees for the negligent performance of qmm-legislative or gwm-judicial duties are all to the contrary. See Visidor Corp. v. Cliffside Park, 48 N. J. 214 (1966); Hoy v. Capelli, 48 N. J. 81 (1966); Willis v. Dept. of Cons. & Ec. Dev., 55 N. J. 534, 540-541 (1970); Annotation, “Municipal Corporation — Liability,” 41 A. L. R. 3d 567 (1972); Fiduccia v. Summit Hill Const. Co. Inc., 109 N. J. Super. 249 (Cty. D. Ct. 1970); Jaffe, “Suits Against Governments and Officers: Damage Actions,” 77 Harv. L. Rev. 209, 223 (1963).

As the court said in Willis v. Dept. of Cons. & Ec. Dev., supra, after first holding that the State may be sued in tort:

* * * But we do emphasize that the State will not be held liable for legislative or judicial action or inaction, or administrative action or inaction of a legislative or judicial cast, nor generally with respect to decisions calling for the exercise of official judgment or discretion. This limitation seems to be uniformly accepted, as we pointed out in Hoy v. Capelli, supra, 48 N. J. at 89, and Visidor Corp. v. Borough of Cliffside Park, supra, 48 N. J. at 218-223. In. those cases, we invoked the same limitation with respect to the liability of municixjal corporations. [55 N. J. at 540-541]

The same immunity exists in favor of a municipal officer or employee who, called upon in circumstances such as were present here to exercise his judgment and discretion; acts in good faith, albeit negligently. Bedrock Foundations, Inc. v. Geo. H. Brewster & Son, Inc., 31 N. J. 124, 138 (1959); Jaffe, supra, at 223.

The judgment against defendants City of Bayonne and Kruse is reversed and judgment entered in their favor. No costs to any party on this appeal.


author: Furman, J. S. C.

text:
    MICHAEL LEHRHAUPT, INDIVIDUALLY AND AS CHAIRMAN OF THE MADISON TOWNSHIP ZONING BOARD OF ADJUSTMENT, DOUGLAS H. REED, INDIVIDUALLY AND AS VICE CHAIRMAN OF THE MADISON TOWNSHIP ZONING BOARD OF ADJUSTMENT, FRANCIS M. CLARK, INDIVIDUALLY AND AS SECRETARY OF THE MADISON TOWNSHIP ZONING BOARD OF ADJUSTMENT, LOUIS LA PLACA, INDIVIDUALLY AND AS A MEMBER OF THE MADISON TOWNSHIP ZONING BOARD OF ADJUSTMENT, GERALD C. KELLY, INDIVIDUALLY AND AS ATTORNEY FOR THE MADISON TOWNSHIP ZONING BOARD OF ADJUSTMENT, LINDA CHORORUS, INDIVIDUALLY AND AS A CLASS IV MEMBER OF THE MADISON TOWNSHIP PLANNING BOARD, JEAN R. MCNIFF, INDIVIDUALLY AND AS A CLASS IV MEMBER OF THE MADISON TOWNSHIP PLANNING BOARD, AND RICHARD F. ZIPP, INDIVIDUALLY AND AS A CLASS IV MEMBER OF THE MADISON TOWNSHIP PLANNING BOARD, PLAINTIFFS, v. THE HONORABLE WILLIAM FLYNN, MAYOR, AND THE TOWNSHIP COUNCIL OF THE TOWNSHIP OF MADISON, DEFENDANTS.
    Superior Court of New Jersey-Chancery Division
    Decided July 1, 1974.

      Mr. Gerald C. Kelly, for plaintiffs (Messrs. Hooley, Perselay, Butler & Kelly, attorneys).

      Mr. Louis J. Alfonso, for defendants.
   Furman, J. S. C.

Madison Township enacted an ordinance mandating full financial disclosure by township officials, on April 1, 1974. Plaintiffs, members of the zoning and planning boards and the zoning board attorney, challenge its constitutional and statutory validity in this declaratory judgment action. The ordinance’s implementation is stayed pending a judicial determination on motion and cross-motion for summary judgment. Municipal legislation may be upheld or struck down without submission of testimony or evidence, despite the presumption of its validity. N. J. Builders Ass’n v. Mayor, E. Brunswick Tp., 60 N. J. 222, 224 (1972); Summer v. Teaneck, 53 N. J. 548, 551 (1969); Moyant v. Paramus, 30 N. J. 528, 539 (1959); Adams Newark Theatre Co. v. Newark, 22 N. J. 472, 474 (1956), aff’d 354 U. S. 931, 77 S. Ct. 1395, 1 L. Ed. 2d 1533 (1959).

The State Legislature has not specifically authorized municipal enactment of financial disclosure ordinances. The validity of the ordinance must therefore rest upon the general delegation of police power to municipalities in N. J. S. A. 40:48-2. Financial disclosure bills applicable to both state and local officials are pending before the State Legislature in its 1974 session (Assembly Bills 167, 178, 475; Senate Bill 309) in conformity with a swelling nationwide trend that elected officials, candidates for elective office and high appointed officials reveal publicly their financial assets and liabilities. Cal. Gen. Laws Ann. Tit. 9, § 1, adopted on initiative June 4, 1974; Fritz v. Gorton, 83 Wash. 2d 275, 517 P. 2d 911 (Sup. Ct. 1974); Stein v. Howlett, 52 Ill. 2d 570, 289 N. E. 2d 409 (Sup. Ct. 1972); Carmel-by-the-Sea v. Young, 2 Cal. 3d 259, 85 Cal. Rptr. 1, 466 P. 2d 225 (Sup. Ct. 1970).

Such financial disclosures have been referred to as purifying democracy (Emerson, The System of Freedom of Expression 634 (1970)) and akin to the public right to know (Red Lion Broadcasting Co. v. F. C. C., 395 U. S. 367, 89 S. Ct. 1794, 23 L. Ed. 2d 371 (1969); N. Y. Times v. Sullivan, 376 U. S. 254, 84 S. Ct. 710, 11 L. Ed. 2d 686 (1964)).

The ordinance under review is less an intrusion on the right of privacy than out-of-state-legislation on the subject approved in Stein and Fritz, supra, and disapproved in Carmel, supra. The financial disclosure reports only of the mayor and members of the township council become public records; those of the appointed officials to whom the ordinance applies are kept confidential, except in judicial proceedings brought by the appointing authority or the board of ethics to prosecute or enjoin violations of the ordinance. The chairman of the board of ethics reviews all financial disclosure reports and advises the mayor and council as to compliance and possible conflicts and irregularities. Penalties for false filing or nonfiling are a maximum 30 days in jail and $500 fine.

The ordinance’s disclosure requirements are comprehensive not only as to the officeholder’s cash, hank accounts, receivables, real property, securities, equity interests in proprietorships or partnerships and other assets and liabilities, but as to his spouse’s and minor children’s. The minimum value of cash, bank accounts, receivables, motor vehicles and liabilities to be reported is set at $1,000. Cash surrender value of life insurance policies, vested interests in pension plans and all furnishings and fixtures are specifically excluded.

Another major thrust of the ordinance, which is not challenged in this action, is to require disclosure of possible conflicts of interests other than through legal or beneficial ownership, that is, any employment or rendering of services for compensation for an in dividual, partnership or corporation regularly transacting business with the township, but not the amount of such compensation.

A succession of Supreme Court decisions has confirmed that the police power delegated to municipalities in N. J. S. A. 40:48-2 is coterminous with the police power of the State Legislature, unless there is a state preemption or the subject matter necessarily lends itself to general and uniform, rather than local, legislative control, even in the absence of state preemption. Inganamort v. Fort Lee, 62 N. J. 521, 536 (1973); N. J. Builders Ass’n, supra. 60 N. J. at 226-227; Summer, supra 53 N. J. at 552; Moyant, supra 30 N. J. at 542; Fred v. Old Tappan Mayor & Council, 10 N. J. 515, 519 (1952). The municipal police power extends to legislation uncharted by prior state legislation on the subject matter. N. J. Builders Ass’n, supra; Moyant, supra; Fred, supra.

Financial disclosure by township officials is appropriate for local rather than general legislative control. Madison refers to numerous recent irregularities, including criminal indictments and convictions, justifying its innovating legislaton on the subject matter without specific state enablement or guide.

The issue to be resolved, therefore, is whether the ordinance under review meets the test of substantive due. process of law, that is, whether in intruding on the right of privacy it is in reasonable furtherance of the public health, safety or welfare. The right of privacy has the dignity of a fundamental liberty, constitutionally protected. Griswold v. Connecticut, 381 U. S. 479, 85 S. Ct. 1678, 14 L. Ed. 2d 510 (1965); Application of Tiene, 19 N. J. 149, 163-164 (1955); Palmer v. Schonhorn Enterprises, Inc., 96 N. J. Super. 72, 75 (Ch. Div. 1967); McGovern v. Van Riper, 137 N. J. Eq. 24, 33 (Ch. 1945).

The public welfare objectives purportedly sought by the township in the ordinance under review are to unbare evidence of. crimes, such as bribery and extortion, and other abuses of office, to avoid conflicts of interest and to instill and encourage public trust in the integrity of the officials subject to it.

The first objective appears marginally advance. As an adjunct to criminal investigation the ordinance would provide meaningful data only on the second annual filing, as-sinning that an official who had, for example, accepted bribes accurately reported his increased assets or those of his wife or minor children. But the wisdom of legislation is not properly within the scope of judicial review. Vickers v. Gloucester Tp, Comm, 37 N. J. 232, 242 (1962); Kennedy v. Newark, 29 N. J. 178, 184 (1959); Kozesnik v. Montgomery Tp., 24 N. J. 154, 167 (1957).

The second objective, the disclosure of conflicts of interest, unmistakeably promotes the public welfare. The third and final objective, that of instilling and encouraging public trust in the integrity of township officials, is irrelevant in constitutional terms, not per se a rationale for legislation. Whatever assuages or placates popular opinion at the moment cannot justify legislation, unless that legislation is otherwise within the police power in reasonable furtherance of the public health, safety or welfare.

The Illinois and Washington Supreme Courts sustained financial disclosure statutes as constitutional under the police power in Stein and Fritz, supra, respectively. In rejecting constitutionality the California Supreme Court in Carmel, supra, termed that state’s disclosure statute overbroad because of its intrusion into irrelevant, as well as relevant, private financial matters, a distinction of significance as to conflicts of interest, less so as to extortion and other crimes.

The ordinance under review in its challenged provisions accomplishes a monitoring function over corruption and conflict of interest in municipal office. Deprivation of privacy is minimal. All financial disclosure reports remain confidential, except those of the elected officials, the mayor and council. In mandating full financial disclosure by township officials themselves the ordinance cannot be said to “sweep unnecessarily broadly and thereby invade the area of protected freedoms” (NAACP v. Alabama, 377 U. S. 288, 307, 84 S. Ct. 1302, 1314, 12 L. Ed. 2d 325, 338 (1964)). That enactment reasonably furthers the public welfare and must be upheld.

Other considerations bear on the ancillary requirement that the township official report his spouse’s and minor children’s full financial data. A husband is under no obligation to disclose his total assets and liabilities to his wife, nor since the Married Persons Act, L. 1852, c. 171 (N. J. S. A. 37:2-12) is a wife to her husband. Each spouse’s property is independent of the other’s. Painter v. Painter, 65 N. J. 196 (1974). In addition, as to a spouse’s or minor child’s beneficial interests, a trustee’s duty to account runs to the beneficiary, not to the spouse or parent, and periodic accountings may not coincide with the annual filing date for financial disclosure reports.

The ordinance imposes penal sanctions for non filing as well as false filing. An official to whom the ordinance applies; if he lacks complete data concerning a spouse’s or minor child’s assets and liabilities, has no alternative except to resign and forego his civic responsibility. Legislation thus depriving an official of elected or appointed office without fault is constitutionally defective. Alternative provisions requiring a report of all transfers to a spouse or minor child during the preceding year and, as in Stein, supra, including within the official’s report financial assets of a spouse or minor child "constructively controlled” by him, would accomplish the legislative purpose of preventing or uncovering diversions of illegitimate funds, without exposing an official to penal sanctions or loss of office.

A further challenge to the ordinance is that the classification of enumerated officials subject to it is incomplete and thus unreasonable because of the omission of the township clerk, deputy clerk, auditor, municipal judge and violations clerk of the municipal court. The omission of the latter two is proper both under the general doctrine of separation of powers and the specific provision of N. J. Const. (1947), Art. YI, § II, par. 3, that “[T]he Supreme Court shall make rules governing the administration of all courts in the State.” As to the township clerk, deputy clerk and auditor, their functions are predominantly ministerial, not discretionary, warranting their exclusion from a classification of officials, other than tax collector, vested with decision-making authority.

Plaintiffs’ final contentions are that the ordinance is unconstitutional because it is ex post facto as applied to previously elected and appointed officials, and an invalid infringement on the statutory autonomy of the zoning board and planning board. These contentions are without merit. Both Stein, and inferentially Fritz, supra, reject the ex post facto argument. The members of the zoning board and planning board are subject to municipal legislative supervision, within the police power and not in conflict with their statutory responsibilities.

The ordinance under review is sustained as valid except that provision requiring disclosure of a spouse’s and minor children’s assets and liabilities, which is held to be invalid and severable.

      A11 members of the zoning board, Class II and IV members of the planning board, the township manager, director of law, director of finance, treasurer, tax collector and tax assessor, township engineer, building inspector, plumbing inspector, head of the recreation department, head of the department of public, works, chief of police, township prosecutor, health administrator, director of welfare, chairman of industrial commission, zoning board attorney and planning board attorney.

      Denial of the privilege against self-incrimination was not argued. That argument would be foreclosed under, e. g., N. J. Builders, Owners & Managers Ass’n v. Blair, 60 N. J. 330, 341 (1972), assuming an otherwise valid enactment within the police power.


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

text:
    THE STATE OF NEW JERSEY, PLAINTIFF, v. JOSEPH SUIT, DEFENDANT.
    Superior Court of New Jersey Law Division — (Criminal)
    Decided July 3, 1974.

      Mr. Russell Cottrell, Assistant Prosecutor, for plaintiff (Mr. James M. Coleman, Jr., Prosecutor of Monmouth County, attorney).

      Mr. Thomas J. Spinello, Assistant Deputy Public Defender, for the defendant (Mr. Stanley C. Van Ness, Public Defender, attorney).
   McGowan, A. J. S. C.

Defendant moves before trial for dismissal of count I of Indictment PTo. 790-73 charging him with the felony murder of one Charles Williams on February 10, 1974. It is defendant’s position that as a matter of law he cannot be charged with the murder of Williams, whose death occurred as a result of a wound inflicted by another, one Solomon Richardson, one of the intended victims. Williams and Suit were engaged in the commission of an armed robbery upon Richardson, among others, when Richardson shot and fatally wounded Williams and injured defendant Suit. The State argues that under N. J. S. A. 2A:113-1, which the State submits adopts the total common law felony-murder doctrine, Suit is liable for murder, since Williams’ demise occurred during the commission of one of the crimes outlined by the statute. For purposes of deciding this motion, defendant and the State have stipulated to the following facts:

On Sunday, February 10, 1974, at about 5:30 p.m. defendant Joseph Suit together with Charles Williams entered an apartment located at 1215 Lake Avenue in the City of Asbury Park, New Jersey. Present in the apartment were the tenant, Lew Marsh, and three visitors-Estelle Coleman, Clarence Vaugh and Solomon Richardson. After a period of conversation Williams pulled out a 22-eal. pistol, pointed it at Richardson and the others, and then robbed them. During the course of the armed robbery Suit was located near the inside of the door of the apartment. While Williams was placing a bullet into his own gun, Richardson produced his own gun, a 38-eal. pistol which had been hidden on his person. Richardson shot and killed Williams and then shot and wounded Suit. Coleman, Richardson and Vaugh were later found with two guns, namely, the pistol used by Williams and the gun used by Richardson. Eor purposes of this motion it is stipulated that defendant Suit acted as an accomplice to the armed robbery, perpetrated by Williams. The State will rely exclusively upon the felony-murder doctrine in its prosecution of defendant Suit.

The issue squarely before this court is whether under N. J. S. A. 2A:113-1 a surviving participant in an armed robbery can be held liable for murder where his coparticipant was killed as a result of a shot fired by the intended victim in an apparent attempt to abort the robbery.

Since dismissal is a severe remedy, it is defendant’s burden to offer this court “the clearest and plainest” of grounds to justify such action. State v. Welek, 10 N. J. 355 (1952). Counsel for defendant and for the State agree there is no controlling New Jersey authority on point with the particular fact pattern at bar. Thus, an examination of our statute in light of its interpretation by New Jersey courts, and an examination of the statutes and case law of our surrounding jurisdictions, is essential to a determination of this matter.

N. J. S. A. 2A:113-1 provides in pertinent part:

li any jierson, in committing or attempting to commit * * * robbery * * * kills another, or if the death of anyone ensues from the committing or attempting to commit such crime or act; * * * then such person so killing is guilty of murder.

The degree of murder is set forth in N. J. S. A. 3A:113-2 as follows;

Murder * * * which is committed in perpetrating or attempting to perpetrate . . . robbery * * * is murder in the first degree.

The prosecutor argues that under the above-cited statutes any death which occurs during the commission of a felony is imputable to the perpetrator as murder. The State relies on State v. Kress, 105 N. J. Super. 514 (Law Div. 1969), and points to that part of the opinion which discusses and interprets the murder statute. The factual pattern in Kress is different and distinguishable. Kress was a bail hearing where the court considered the propriety of a murder indictment against a defendant who, in effect, used a bank official as a shield in attempting to escape from a bank after committing an armed robbery. The police, while apprehending the perpetrators, fatally wounded the official. Defendant there argued that he could not be held liable for murder since the police fired the fatal shots. This argument was based on an interpretation of N. J. S. A. 2A:113-1 which held that the phrase “then such person so killing” required that liability must be predicated on the person who in fact fired the fatal shot. Although a portion of the statute speaks in terms of “if the death of anyone ensues from the committing” (hereinafter referred to as the ensues clause), defendant argued that that provision is incomplete and of no effect lest it be coupled with the concluding phrase placing liability on the person acting. The Kress court rejected 'this argument and found that the ensues clause could stand alone, without regard to the closing provision, otherwise the phrase would be mere surplusage. However, the Kress court also noted that the facts involved indicated defendant used decedent as a shield, thus forcing decedent into a position likely to cause his death. Kress, supra, 105 N. J. Super. at 521-522. The State submits that Kress is illustrative of the wide sweep of New Jersey’s murder statute.

Defendant counters and argues that the interpretation of the murder statute in Kress ignores the mandate of State v. Provenzano, 34 N. J. 318, 322 (1961), which requires a common sense interpretation of a criminal statute. It is submitted that the ensues clause without the concluding phrase is incomplete and incomprehensible. Moreover, defendant submits that there is no authority in case law for the position adopted in the Kress decision. See, also, the excellent ease note critically analyzing the Kress decision, 24 Rutgers L. Rev. 591 (1970).

A review of some New Jersey cases is appropriate if we are to gain any insight into the felony-murder doctrine in general. At the outset it should be noted that there is no dispute at present as to whether Suit’s liability is lessened since he was an accomplice. All participants in a felony are liable as if they were principals. See N. J. S. A. 2A:85-14.

Some cases which discuss felony-murder are concerned with the concept of res gestae and consider questions of whether the felony was abandoned or completed prior to the commission of the homicide. In State v. Mule, 114 N. J. L. 384 (E. & A. 1935), defendants were convicted of first degree murder. While the case centers about the question of whether one of the participants had withdrawn from the felony, Mule is noteworthy here since that court discusses the effect that the conduct of the victim might have on the elements of the crime. During a robbery attempt the victim assaulted one of the robbers and was lunging for defendant when it appeared to both felons that the victim was about to resort to a weapon. One of the felons fired a shot, allegedly to scare the victim but which subsequently killed him. The court found that this act was committed in an attempt to perpetrate the robbery and held that the victim’s conduct was of no consequence in assessing defendant’s liability :

That the resistance offered by the intended victim, whether unexpected or otherwise, prompted Scarponi to use the gun for self-protection, is therefore of no moment. It matters not that he fired the shot to escape violence at the hands of the resisting victim, and not to aid in the consummation of the planned robbery, or because of fright, as he suggested.
In such circumstances, the shooting was woven into the fabric of the planned crime, and was inseparable from it. [114 N. J. L. at 391-392]

This res gestae approach actually developed in response to defense arguments that the felony was complete prior to the infliction of the fatal blow. See State v. Artis, 57 N. J. 24, 32 (1970); State v. Turco, 99 N. J. L. 96 (E. & A. 1923); State v. Gimbel, 107 N. J. L. 235 (E. & A. 1930).

In State v. Carlino, 98 N. J. L. 48 (Sup. Ct.), aff'd 99 N. J. L. 292 (E. & A. 1923), the question was whether an accomplice who had fled the scene had sufficiently removed himself from the crime to escape liability for a shot fired by one of his accomplices. The court held (at 52) that all participants in an unlawful act are liable as principals for the particular crime; all are liable for murder if but “one of them * * * kill a man,” State v. Lucas, 30 N. J. 37 (1959); State v. Butler, 27 N. J. 560 (1950); State v. Hubbard, 123 N. J. Super. 345 (App. Div. 1973); Ruvesel v. State, 62 N. J. L. 216 (E. & A. 1898). Also, in State v. James, 96 N. J. L. 132 (E. & A. 1921), that court, in considering insanity as a defense to a felony murder, stated that a homicide committed in the perpetration of a robbery, if murder at all, is murder in the first degree. (Emphasis supplied). This case is noteworthy in that it is the sole case in New Jersey which indicates that murder may not lie for a homicide committed during a felony.

The prosecutor here argues that it can be nothing but first-degree murder because of the breadth of the language of N. J. S. A. 2A:113-1, as evidenced by the holding in State v. McKeiver, 89 N. J. Super. 52 (Law Div. 1965). In that case defendant, charged with felony-murder, moved to dismiss on grounds that since decedent, a bystander and possible victim, had suffered cardiac arrest during the robbery, the death could not be attributable to the felony. The court held (at 57) that “the fact that there was no physical contact with decedent does not negate the premise that a homicide occurred as a result of fear and apprehension during defendant’s commission of a robbery.” It was the court’s opinion that the death was a direct result of defendant’s actions. This ease, of course, presents a fact pattern different from the case at bar.

Our Supreme Court, in State v. Bunk, 4 N. J. 461 (1950), cert. den. 340 U. S. 839, 71 S. Ct. 25, 95 L. Ed. 615 (1950), expressly declined to rule if first-degree murder would lie where decedent was killed by a third person not acting in concert or having any connection with defendants. The issue arose on appeal as a claim of error in the trial court’s charge. Judge Francis (later Justice Francis) instructed the jury as follows:

During the drawing of this jury, and while some of you were in the box and while some others of you were in the courtroom a legal argument between counsel and the Court took place. At that time I expressed the view that if during the course of this attempted robbery a third person, such as a patron of the tavern, drew a gun or used a gun to aid in repulsing the robbers and in doing so accidentally killed another person, the persons attempting the robbery would be guilty of murder in the first degree for that killing.
Since that time my further study of this statute and of the law has convinced mo that the view l then expressed was an erroneous view. Consequently, in order to avoid any possible misunderstanding on the subject, I expressly withdraw that assertion and instruct those of you who heard it to disregard it.
If the killing of Peter Newcomb came about through the firing of a shot by a third person in resisting the attempt at robbery and that third person had no connection with these defendants, then under the statute they are not guilty under the indictment and must be acquitted. [4 M. J. at 468J

Our Supreme Court merely held that the charge was not ground for reversal. It should be noted that the theory of this charge is adopted by Schlosser in his Treatise on New Jersey Criminal Law. He comments that while the point has not been decided, it is doubtful the felons could be held liable for a killing of another by a third person attempting to repulse the robbers. See 2 Schlosser, Criminal Laws of N. J. (3 ed. 1970), § 57:16 at 94. Both Bunk and Schlosser speak in terms of the death of another person, thus not clearly indicating applicability to the death of a co-felon.

It appears that this court must examine both the purpose of the doctrine and the instant fact pattern to decide this issue. At the outset it should be noted that at common law any homicide which resulted from the perpetration or attempted perpétration of an inherently dangerous felony was murder. Perkins, Criminal Law (2 ed. 1969) 41. The doctrine arose and is premised upon a theory of transferred intent, that is, that one perpetrating or attempting to perpetrate an inherently dangerous felony possesses a malevolent state of mind which the law calls malice. However, the felony-murder doctrine is not actually concerned with the “intent to kill” or “malice aforethought” which is normally an element to be proven in a first-degree murder prosecution. Rather, the phrase employed to define intent here is “man-endangering state of mind.” See generally, Perkins, op. cit., at 46 et seq.

It is this intent which transfers into that element of malice necessary to sustain a charge of first-degree murder and is imputed to the person who kills during the felony. Thus, when killing occurs in the commission of a robbery, it is murder in the first degree, even though death was not intended. Therefore, in such a case, the State is not under any duty to prove a willful, deliberate and premeditated killing. State v. Holland, 59 N. J. 451, 458 (1971); State v. Turco, supra, 99 N. J. L. at 102.

From the New Jersey eases it appears there is no real question as to liability when the perpetrator uses the victim as a shield, Kress, supra; or when the perpetrator himself fires the shot or fatally injures a third party, Turco, supra, Gimbel, supra and Mule, supra. A real question is presented, however, in situations such as the one at bar where the fatal shot was fired by the intended victim in an effort to defend against the robbery being perpetrated upon him or intended to be perpetrated upon him, resulting in the death of a co-perpetrator. The difficulties presented in such situations require the courts to examine the factual pattern of each case in light of the particular statutory authority.

Unquestionably robbers are the factual cause of any shooting which is intended to frustrate the robbery or arrest the offenders, but whether a factual cause is to be recognized as the proximate cause of resulting harm requires a policy-decision in a situation such as this. Many possibilities are involved when death has been caused by those defending against robbery, of which the following may be mentioned with no attempt to be exhaustive: (1) The robbers may not have been armed; (2) they may have been armed but without having displayed a weapon; (3) one robber may have actually or apparently reached for a weapon; (4) he may have displayed a weapon without pointing it; (5) he may have pointed an unloaded weapon, and so forth. [Perkins, op. cit. at 721]

Thus, it is the person who acts and his reasons for so acting which must be scrutinized. If the action is that of the robber, clearly he is the cause of the resulting death. If the action be that of the victim, and he be “such person so killing”, his actions are absolutely justifiable. How, then, is it possible to transfer malicious intent when none is present where a justifiable homicide occurs?

Therefore, many courts have adopted the position that without clear proximate causation, traceable through the actions of the felon, liability will not be found. See Morris, “The Felon’s Eesponsibility for Lethal Acts of Others,” 105 U. of Pa. L. Rev., 50, 51 (1956). In these jurisdictions the act must be one directly attributable to the felon or his accomplice, and in furtherance of the common plan to commit the felony. The New York Court of Appeals, in People v. Wood, 8 N. Y. 2d 48, 201 N. Y. S. 2d 328, 167 N. E. 2d 736 (1960), stated that.:

* * * in order for a felon to be guilty of the homicide, the act (as in agency) must be “either actually or constructively his, and it cannot be his act in either sense unless committed by his own hand or by some one acting in concert with him or in furtherance of a common object or purpose.” (Commonwealth v. Campbell, 89 Mass. 541, 544 [rioter not guilty of a murder for accidental killing of an innocent person by those suppressing the riot] ; Butler v. People, 125 Ill. 641, 18 N. E. 338, 1 L. R. A. 211 [felon not guilty although rowdy conduct resulted in accidental killing of bystander by town marshal] ; People v. Garippo, 292 Ill. 293, 127 N. E. 75 [felon not guilty where unknown person killed his accomplice during course of a robbery] ; Commonwealth v. Moore, 121 Ky. 97, 88 S. W. 1085, 2 L. R. A., N. S. 719 [felon not guilty where victim of robbery accidentally killed a bystander] ; State v. Oxendine, 187 N. C. 658, 122 S. C. 568 [felon not guilty where victim of assault killed by a bystander]). [201 N. Y. S. 2d at 332, 167 N. E. 2d at 739]

It should also be noted that the Wood court concluded that in light of the common law, case law and a fair reading of the murder statute, the legislature intended felony-murder to be confined to homicides committed only by felons.

This position was also adopted in Pennsylvania, as evidenced by Commonwealth v. Redline, 391 Pa. 486, 137 A. 2d 472 (Sup. Ct. 1958). Previously, the law in Pennsylvania was contained in Commonwealth v. Thomas, 382 Pa. 639, 117 A. 2d 204 (Sup. Ct. 1955), which held defendant liable for the death of his accomplice who was shot by the victim/ owner of a grocery store while attempting to flee after an armed robbery. The Bedline court held Thomas to be an unwarranted extension of the felony-murder doctrine and held that a justifiable homicide could not be used to support a charge of murder. It was the reasoning in Bedline that a criminal charge could not be lodged against someone for the consequences of lawful conduct of another. For a full discussion of the cases in this area, see Annotation, “Criminal liability, where act of killing is done by one resisting felony or other unlawful act committed by defendant,” 56 A. L. R. 3d 239 (1974). See also, People v. Austin, 370 Mich. 12, 120 N. W. 2d 766 (Sup. Ct. 1963) ; People v. Hudson, 6 Ill. App. 3d 1062, 287 N. E. 2d 41 (App. Ct. 1972), which adopt the position advanced in Bedline, supra.

The California courts have also held that for a defendant to be convicted under the felony-murder rule, it is necessary that the felon or his accomplice commit the killing. If the facts are not so, then the killing cannot be said to be committed to perpetrate the felony — rather, it is done in an attempt to frustrate same. People v. Washington, 62 Cal. 2d 777, 44 Cal. Rptr. 442, 402 P. 2d 130 (Sup. Ct. 1965). Also, in Commonwealth v. Balliro, 349 Mass. 505, 209 N. E. 2d 308, 14 A. L. R. 3d 640 (Sup.-Jud. Ct. 1965), the court reiterated the century-old Massachusetts rule that no person could be guilty of a homicide unless the act of homicide be actually or constructively his.

Similarly, the proposed New Jersey Penal Code embraces the standards of liability for felony-murder as outlined by the case law and statutory authority in New York, Pennsylvania and California. 1 New Jersey Penal Code, “Report & Penal Code,” Final Report of the New Jersey Criminal Law Revision Commission (Oct. 1971). In fact, the felony-murder provision of the proposed Code is substantially the same as that outlined in the New York Penal Code, § 125.25. (See footnote 2, supra). Under the proposed Code, §§ 2C: 11-2 et seq., liability would be imputed to a participant only for the death of a person other than one of the co-participants in the robbery.

The State argues that the above-cited cases are inapplicable because oí statutory differences. It is argued that the New Jersey statute is an expansion of the common law, in the sense that it speaks in terms of “any death which occurs without regard to the person whose action causes same.” I cannot agree with this statutory interpretation.

N. J. S. A. 2A:113-1 cannot be bifurcated into incomprehensible segments. If the ensues clause is severed and held to stand alone, it is not only a sentence fragment, hut also Imposes no liability because it is without conclusion. A penal statute without a penalty clause is of no force and effect. State v. Fair Lawn Service Center, Inc., 20 N. J. 468, 473 (1956). Nor can I find any authority for the conclusion in Kress that the semicolon is dispositive on the question of legislative intent. Rather, it appears that where “the dominant statutory purpose is clear, the court may disregard punctuation or even repunctuate in search for legislative intention.” In re Marvin, 97 N. J. Super. 62, 73 (App. Div. 1967). See, again, Comment, 24 Rutgers L. Rev. 591 (Spring 1970). We must bear in mind that we are construing a penal statute and cannot “create a liability when the words of the enactment are not clear in fixing it * * *.” State v. Mundet Cork Corp., 8 N. J. 359, 365 (1952) cert. den. 344 U. S. 819, 73 S. Ct. 14, 97 L. Ed. 637 (1952). The ultimate question in this situation is whether in fact this defendant is guilty of this crime. State v. Giardina, 27 N. J. 313, 316 (1958). Of course, this does not mean that a ridiculous result shall be reached because some ingenious path may be found to that end. Rather, it means that a statute shall not be extended by tenuous interpretation beyond the fair meaning of its terms, lest it be applied to persons or conduct beyond the contemplation of the legislature. State v. Carbone, 38 N. J. 19, 24 (1962); State v. Provenzano, supra, 34 N. J. at 322.

It is this court’s opinion that defendant herein is beyond the contemplation and proscription of N. J. S. A. 2A:113—1. The act resulting in Williams’ death cannot be directly attributable to defendant in furtherance of the common plan to commit robbery. Nor can defendant be said to be the “person so killing” under the statutory language. Suit was not the person who killed. Rather it was Richardson, the intended victim, whose voluntary responsive actions resulted in what may be termed a justifiable homicide.

As a matter of law, I find on these facts that defendant cannot be held to answer a charge of felony-murder under N. J. S. A. 2A:113-1. Therefore, count I of Indictment 790-73 is dismissed. Motion granted.

      it should be noted, however, that at this point in time most felonies were capital offenses. Thus, there was no increase in penalty by virtue of a felony-murder prosecution.

      This conclusion was adopted by the New York Legislature, as evidenced by New York Penal Code, § 125.25, McKinney’s Consol. Laws, c. 40, which provides in pertinent part that: *' * A person is guilty of murder when * * * (3) Acting either alone or with one or more other persons, he commits or attempts to commit robbery * * * and, in the course of and in furtherance of such crime or of immediate flight therefrom, he, or another participant, if there be any, causes the death of a person other than one of the participants; except that in any prosecution under this subdivision, in which the defendant was not the only participant in the underlying crime, it is an aflirmative defense that the defendant: (a) Did not commit the homicidal act or in any way solicit, request, command, importune, cause or aid the commission thereof; and (b) Was not armed with a deadly weapon * *■ *” (Emphasis supplied)

      The controlling murder statutes in Pennsylvania are as follows: 18 Purdon, eons. Pa. Stat. Ann., § 2051. “Criminal Homicide — (a) Offense defined. • — ■ A person is guilty of criminal homicide if he intentionally, knowingly, recklessly or negligently causes the death of another human being, (b) Classification. — Criminal homicide shall be classified as murder, voluntary manslaughter, or involuntary manslaughter.”

        IMd. § 2502. “Murder —• (a) Murder of the first degree. — A criminal homicide constitutes murder of the first degree when it is committed by means of poison, or by lying in wait, or by any other kind of willful, deliberate, and premeditated killing. A criminal homicide constitutes murder of the first degree if the actor is engaged in or is an accomplice in the commission of, or an attempt to commit, or flight after committing, or attempting to commit robbery, rape, or deviate sexual intercourse by force or threat of force, arson, burglary, or kidnapping, (b) Murder of the second degree. — All other kinds of murder shall be murder of the second degree. Murder of the second degree is a felony of the first degree.”

        Cal. Rev. Stat. § 189 provides in pertinent part as follows: “All murder which is perpetrated by means of a bomb, poison, lying in wait, torture, or by any other kind of willful, deliberate, and premeditated killing, or which is committed in the perpetration of, or attempt to perpetrate, * * * robbery * * * is murder of the first degree; and all other kinds of murders are of the second degree.

      Accord. People v. Gilbert, 63 Cal. 2d 690, 47 Cal. Rptr. 909, 408 P. 2d 365 (Sup. Ct. 1965), vacated on other gorunds 388 U. S. 263, 87 S. Ct. 1951, 18 L. Ed. 2d 1178; Taylor v. Superior Court of Alameda County, 3 Cal. 3d 578, 91 Cal. Rptr. 275, 477 P. 2d 131 (Sup. Ct. 1970), and People v. Johnson, 28 Cal. App. 3d 653, 104 Cal. Rptr. 807 (D. Ct. App. 1972) (recognizing rule).

      Section 2C:ll-3 of the proposed New Jersey Penal Code, supra, provides in pertinent part as follows:
      “* * *, criminal homicide constitutes murder when: * * *
      (4) it is committed when the actor, acting either alone or with one or more other persons, is engaged in the commission of, or an attempt to commit, or flight after committing or attempting to commit robbery * * *, and in the course of and in furtherance of such crime or of immediate flight therefrom, he, or another participant, if there by any, causes the death of a person other than one of the participants; except that in any prosecution under this Subsection, in which the defendant was not the only participant in the underlying crime, it is an affirmative defense that the defendant:
      (a) did not commit the homicidal act or in any way solicit, request, command, importune, cause or aid the commission thereof; and
      (b) was not armed with a deadly weapon, or any instrument, article or substance readily capable of causing death or serious physical injury and of a sort not ordinarily carried in public places by law-abiding persons; and
      (c) had no reasonable ground to believe that any other participant was armed with such a weapon, instrument, article or substance; and
      (d) had no reasonable ground to believe that any other participant intended to engage in conduct likely to result in death or serious physical injury.” [Emphasis supplied]
      Note: Vol. II: Commentary, New Jersey Penal Code, supra, at 156-158, discusses the felony-murder provision and appears to be in line with the reasoning of the New York eases cited supra.


text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. CARL C. SCHLUE, DEFENDANT-APPELLANT.
    Superior Court oí New Jersey Appellate Division
    Submitted June 25, 1974
    Decided July 10, 1974.

      Before Judges Kolovsky, Leonard and Carton.

      Mr. Frank J. Ferry, attorney for appellant.

      Mr. William F. Hyland, Attorney General of New Jersey, attorney for respondent (Mr. George H. Henningsen, Deputy Attorney General, of counsel and on the brief).
   The opinion of the court was delivered by

Kolovsky, P. J. A. D.

Defendant appeals from the judgment of conviction entered on a jury verdict- finding him guilty of obstruction of justice. At common law it was, and under N. J. 8. A. 2A:85-1 it still is, a misdemeanor “to do any act which prevents, obstructs, impedes, or hinders the due course of public justice.” State v. Cassatly, 93 N. J. Super. 111, 118 (App. Div. 1966).

The indictment on which defendant was tried alleged, in essence, that between July 20, 1971 and August 15, 1971:

(1) The State police were conducting an investigation “concerning the activities of [defendant] and divers others associated with him in connection with the payment of sums of money by various individuals to [defendant] for the purpose of acquiring and retaining work as ironworkers,” and
(2) Defendant, knowing of the investigation and knowing that one Ricci “had information germane to the said investigation,” wilfully and corruptly sought to induce and persuade Ricci “to deny falsely, if questioned in the course of the investigation that he * * * had such information; to the obstruction, hindrance and impedance of the due course of public justice.”

Defendant does not contend that the evidence adduced, consisting primarily of Ricci’s testimony and a recorded tape of a meeting between defendant and Ricci, does not furnish plenary support for the jury’s verdict. Ricci’s testimony and the tapes, if credited, established that in the spring and summer of 1971 defendant, who knew that the State Police were conducting an investigation with respect to payments allegedly made to him by Ricci and others, sought to induce Ricci to mislead the State Police and tell them that he had no information as to any wrongdoing by defendant.

Ricci also testified to events which had allegedly occurred the year before, in April 1970. According to him, he had then paid defendant, who had some official connection with an ironworkers union, $2,100 and had agreed to, and thereafter did pay to defendant $10 for each day he worked, this in return for defendant seeing to it that Ricci procured a “union book” which enabled him to work as an ironworker.

Defendant concedes that evidence with respect to the payments allegedly made by Ricci to him would normally be admissible to show his motive for seeking to induce Ricci to mislead the State Police. However, he contends that in this case the evidence was not admissible because, at a prior trial in October 1972 of an indictment charging him with a violation of N. J. S. A. 2A:93-8 by reason of his having received such payments from Ricci, a jury had found him not guilty. Further, defendant argues that the acquittal at the prior trial entitled him to invoke “double jeopardy” and “collateral estoppel” as a bar to his prosecution for obstruction of justice.

The several arguments are all without merit. The present prosecution for obstruction of justice based on acts committed by him in July and August 1971 was not barred by his prior acquittal in a prosecution for bribery based on acts done by him in April 1970, allegedly in violation of N. J. S. A. 2A:93-8, which reads as follows:

Any person who gives, offers or promises any money, real estate, service or tiling of value to any foreman or person having other workmen or employees under his control or authority, for the purpose of influencing him to employ or retain any workman or employee in any position, or for the purpose of procuring employment or avoiding discharge therefrom, and any such foreman, or person in control or authority, who accepts or agrees or offers to accept any money, real estate, service or thing of value for any of such purposes, is guilty of a misdemeanor.

Contrary to what defendant argues, he has not been tried twice for the same offense. There is no warrant for sustaining defendant’s plea of double jeopardy — this whether we apply the “same transaction” test, State v. Roller, 29 N. J. 339, 345 (1959), the “same evidence” test, State v. Labato, 7 N. J. 137, 144-147 (1951), or the “lesser included offense” test, State v. Dixon, 40 N. J. 180 (1963).

The two alleged offenses for which defendant was tried were separate criminal transactions occurring more than a year apart. The elements of each crime are distinct and different. The elements of the crime of obstructing justice are the doing of an act which obstructs, impedes or hinders the due course of public justice — here, seeking to induce another to give false information to the police authorities engaged in an investigation.

None of these is a constituent element of the bribery offense for which defendant was theretofore tried. The elements of that offense and the ultimate issues of facts which were to be decided at the first trial were:

(3) Whether defendant was a “foreman or person having other workmen or employees under his control or authority,” and
(2) Whether defendant accepted or agreed or offered to accept money or other thing of value “for the purpose of influencing him to employ or retain any workman or employee in any position, or for the purpose of procuring employment or avoiding discharge therefrom 4 *

Nor is there any merit to the argument that the prosecution for obstruction of justice should have been barred on the grounds of collateral estoppel. Cf. State v. Redinger, 64 N. J. 41 (1973); State v. McCue, 122 N. J. Super. 171 (App. Div. 1973). Collateral estoppel means simply “that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit.” Ashe v. Swenson, 397 U. S. 436, 443, 90 S. Ct. 1189, 1194, 25 L. Ed. 2d 469 (1970). See also, State v. Ebron, 61 N. J. 207 (1972).

As we have already indicated, none of the issues of ultimate fact in the prosecution for obstruction of justice were involved or decided in the trial on the bribery charge.

Further, the fact that defendant had been acquitted in October 1972 of the bribery charge stemming from the payments allegedly" made to him by Eieci did not bar the introduction of Eieci’s testimony as to the alleged payments for the purpose of showing his motive, in July and August 1971, for seeking to induce Eieci to mislead the State Police. State v. Yormark, 117 N. J. Super. 315, 337 (App. Div. 1971), certif. den. 60 N. J. 138, 139 (1972), cert. den. 407 U. S. 925, 92 S. Ct. 2459 32 L. Ed. 2d 812, 409 U. S. 862, 93 S. Ct. 151, 34 L. Ed. 2d 109; State v. Robinson and Chittenden, 16 N. J. L. 507 (Sup. Ct. 1838). As the court said in Yorinarle, supra:

* * *■ The admission of such testimony, although it relates to other alleged offenses for which the defendants had been previously acquitted, is upheld by the great weight of authority throughout the country.

Defendant also argues, without any citation of supporting authority, that the court erred in precluding him from informing the jury that he had been acquitted at the prior trial for a violation of N. J. S. A. 2A:93-8.

We disagree. The very reasons adverted to in State v. Robinson and Chittenden, supra, for not barring the State, despite the prior acquittal, from offering evidence with respect to the payments allegedly made by Ricci to defendant also appty to bar the admission of evidence that defendant bad been acquitted. As noted in Robinson and Chittenden, the record of the judgment of acquittal at the prior trial does not disclose why defendant was then acquitted. It may have been because the jury was not satisfied that defendant was a '“foreman or person having other workmen or employees under his control or authority.” The jury verdict did not necessarily mean that the jury at the first trial did not believe Ricci’s testimony that he had made the payments to defendant. No justification appears for admitting the acquittal into evidence and thus opening the door to a full collateral investigation into what transpired at the former trial and why the first jury found as it did.

There is some authority which tends to support defendant’s argument. See, e. g., Annotation, “Evidence — other offense — acquittal,” 86 A. L. R. 2d 1132, 1144 (1962), but. we find it unpersuasive. Cases such as People v. Griffin, 66 Cal. 2d 459, 58 Cal. Rptr. 107, 426 P. 2d 507 (Sup. Ct. 1967), involved situations in which it appeared that the judgment record of the former trial — there, a Mexican judgment acquitting defendant of assault and rape — contained specific and detailed findings of fact contrary to the testimony offered, to show the similarity of the circumstances of the two attacks, at defendant’s later trial in California for murder of another woman.

Further, the acquittal in October 1972 was not relevant to the question of the defendant’s motive in July-August 1971, the critical dates involved in the trial for obstruction of justice, see State v. Heaton, 56 N. D. 357, 217 N. W. 531 (Sup. Ct. 1928), nor was it material to the ultimate and controlling question whether defendant, knowing of the State Police investigation, had sought to thwart it by attempting to have Bieci mislead the State Police.

Finally, there is no substance to defendant’s argument that, even though he had not moved for consolidation, the State should have moved for a consolidated trial of the bribery and obstruction of justice indictments.

The judgment of conviction is affirmed.