author: Lane, J. A. D.

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. JOSE MORALES, DEFENDANT-APPELLANT, AND LEON D. YATES, DEFENDANT.
    Superior Court of New Jersey Appellate Division
    Argued September 22, 1970
    Decided October 6, 1970.

      Before Judges Kilkenny, Halpern and Lane.

      Mr. Myles Daitzman, Designated Attorney, argued the cause for appellant (Mr. Stanley O. Van Ness, Public Defender, attorney).

      Mr. Alfred M. Bitting, Assistant Prosecutor, argued the cause for respondent (Mr. Dominick J. Ferrelli, Burlington County Prosecutor, attorney)
   The opinion of the court was delivered by

Lane, J. A. D.

Defendants were indicted for the manslaughter of Angelo Bye in violation of N. J. S. A. 3A:113-5. The jury found both defendants guilty. The matter is before the court on the appeal of Jose Morales.

The homicide occurred shortly after midnight on October 1, 1968 at Emily’s Inn in Easthampton Township, Burlington County. Morales, a married man with seven children, was stationed at Port Dix awaiting honorable discharge after 30 years of service in the United States Army. On September 30, 1968 after attending an R.C.A. Training School where he was learning to become a television repairman, he and a friend, Sergeant Beynolds, went to Emily’s Inn looking for a mutual friend. They arrived at approximately 10 p.m. After having a few drinks, Morales played a game of pool with Bye, the deceased. Bye lost the game and became rather upset although there was no real disagreement between Morales and Bye. Immediately before the shooting Bye and a friend, Linda Marble, were sitting at the bar, as were Morales and Beynolds. The co-defendant, Leon D. Yates, was sitting between Miss Marble and Morales. Before September 80 Morales had never seen Bye, Maride or Yates. Bye got into a conversation with Yates about their respective terms in service. During the course of this conversation Morales called Rye “chicken.” Words were passed between Morales and Rye. Yates reached down and put a gun on the bar which he passed to Rye. Rye picked it up and then slid it back to Yates. The testimony is not clear as to exactly what happened after the gun was returned to Yates. There was testimony that Yates pushed the gun towards Morales and said to him, “Shoot that bastard.” Morales picked up the gun, said something and the fatal shot was fired.

After the shooting Morales remained at the bar. Yates picked up the gun and walked out of the inn.

Morales testified as to the shooting that he had never seen a weapon like that in his life. He thought it was a toy gun and as he was handing it back to Yates, the gun went off. Subsequently the gun was retrieved by the police from a parking lot down the road from Emily’s Inn where Yates had disposed of it.

Defendant argues that he was substantially prejudiced by an erroneous instruction given to the jury. In substance the alleged erroneous instruction was that it would be legally inconsistent for the jury to find Morales not guilty and to find Yates guilty. No objection was made at the time of the trial. He further argues that he suffered irreparable harm becaitse the court in answer to an inquiry from the jury advised the jury that they might recommend leniency.

The thrust of the State’s case was that Morales was guilty as the principal who actually committed the manslaughter and Yates was guilty of aiding and abetting. Under N. J. S. A. 2A:85-14 an aider and abettor is indicted as a principal. In his instructions to the jury which were somewhat confusing the trial court limited the jury’s consideration of the charge against Yates to that of aider and abettor.

The court specifically charged the jury:

Tou may find that the defendant Tates was either guilty of manslaughter by reason of the statute known as the aiders and abettors statute, which I have explained to you, if your verdict of guilty is returned as to Morales, but it would be legally inconsistent for you to find Morales not guilty and to find Yates guilty under the circumstances and under the thrust of the aiders and abettors statute. You should know further that you may find the defendant Yates not guilty of the charge of manslaughter even should you find the defendant Morales not guilty of manslaughter or if you find the defendant Morales guilty of manslaughter and you further find from your examination of the proofs that the acts and conduct of the defendant Yates did not prove his involvement under the aiders and abettors statute to the degree required to sustain a finding of guilt in that regard.

In Ills brief Morales appears to accept the theory of the case that factually Yates could be found guilty only on the theory of aiding and abetting. He argues, however, that the distinction between principals and aiders and abettors bas been abolished and, therefore, the jury should not have been instructed that to find Yates guilty it had to find Morales guilty, citing State v. Cooper, 10 N. J. 532, 567 (1952); State v. Marshall, 97 N. J. L. 10 (Sup. Ct. 1922); United States v. Provenzano, 334 F. 2d 678 (3 Cir. 1964), cert. den. 379 U. S. 947, 85 S. Ct. 440, 13 L. Ed. 2d 544 (1964); Gray v. United, States, 104 U. S. App. D. C. 153, 260 F. 2d 483 (D. C. Cir. 1958); United States v. Klass, 166 F. 2d 373 (3 Cir. 1948) ; State v. Cushing, 61 Nev. 132, 120 P. 2d 208 (Sup. Ct. 1941).

These cases support the proposition that where a defendant is indicted and tried as a principal on the basis of his aiding and abetting another, the State, must show that the alleged crime was committed but need not show by whom it was committed. “The proof must establish the commission of the offense by someone and the aiding and abetting by the defendant so charged.” Roth v. United States, 339 F. 2d 863 (10 Cir. 1964).

Under the factual circumstances before the court, the charge insofar as aiding and abetting is concerned was not erroneous. The only way the State could prove that a crime had been committed was to prove Morales guilty. If in fact Morales was not guilty, Yates could not have been found guilty under the theory of his aiding and abetting the commission of a crime. Shuttleworth v. City of Birmingham, 373 U. S. 262, 83 S. Ct. 1130, 10 L. Ed. 2d 335 (1963); Edwards v. United States, 286 F. 2d 681 (5 Cir. 1960).

The charge, however, was deficient because it did not instruct the jury that they could find Yates guilty as a principal independent of aiding and abetting Morales.

Both Morales and Yates were indicted as principals. Either one could be convicted upon proof that he aided and abetted or upon proof that he was the principal actor. Cf. State v. Jacques, 99 N. J. Super. 230 (App. Div. 1968), aff’d 52 N. J. 481 (1968), cert. den. 395 U. S. 985, 89 S. Ct. 2138, 23 L. Ed. 774 (1969). There was sufficient evidence from which the> jury could have concluded that Morales had committed an excusable homicide by virtue of accident or misadventure. N. J. S. A. 2A:113-6. There was also sufficient evidence from which the jury could have found Yates guilty as the) principal actor in the manslaughter. A charge of involuntary manslaughter against Yates could have been supported on the theory of his careless and reckless use of the gun in question in a place where its accidental discharge could do injury. Cf. State v. Diamond, 16 N. J. Super. 26 (App. Div. 1951); State v. Reitze, 86 N. J. L. 407 (Sup. Ct. 1914); Charge to Grand Jury, 9 N. J. L. J. 167 (O. & T. 1886). Prom the evidence the jury could have concluded that the gun was fired while in Morales’ hand by accident but that Yates had acted with criminal negligence. In such circumstance, Yates would be guilty as a principal actor, acting through the innocent Morales. Perkins, Criminal Law 569 (1957).

Where a defendant may be found guilty either as a principal actor or as an aider and abettor, the jury should be instructed as to both possibilities. State v. Jacques, 99 N. J. Super. 230, supra.

We hold that the failure to charge the jury that Yates could have been found guilty without Morales being found guilty was' plain error. It substantially affected the rights of Morales and was of such a grievous nature to have a clear capacity to bring about an unjust result. State v. Gardner, 51 N. J. 444, 456 (1968). Its capacity for error is shown by the manner in which the jury rendered its verdict. The verdict as to Morales was:

This jury has reached a unanimous decision that Sergeant Morales is guilty of the charge of manslaughter, but also unanimously recommends leniency.

Whereas its verdict as to Yates was:

This jury has reached a unanimous verdict that Leon Daniel Yates is guilty of the charge of manslaughter, period.

The other point on appeal is that reversible error was committed when the court answered an inquiry from the jury as to whether it was possible for the jury to recommend leniency in the following manner:

By way of answer to you, the jury may recommend leniency, but you should know that the Court is not of necessity bound by the recommendation that the jury may make; that the function is intended to be the jury’s primary obligation which is to determine the guilt or innocence and the sentence or punishment is an independent function which is not committed to the jury, but the jury may make such a recommendation if it feels so moved that the Court is not by reason of that recommendation restricted or bound by that recommendation. It is an independent function.

In State v. Overton, 85 N. J. L. 287 (E. & A. 1913), the jury in a murder ease tried before the adoption of the statute allowing a recommendation for life imprisonment [N. J. S. A. 2A:113-4], returned its verdict of guilty of murder iu the first degree “with a recommendation of defendant to the leniency of the court.” The trial court ruled that the recommendation was surplusage and directed the jury to retire and to declare only whether defendant was guilty or not guilty of murder and if guilty whether in the first or second degree, omitting any recommendation. The Court of Errors and Appeals concurred with the view of the trial court “that the verdict as originally rendered was a geod verdict of guilty in the first degree, and that the recommendation should he disregarded as surplusage.” (at 296)

The general rule is quite clear that in the absence of a statute allowing a recommendation, a recommendation by the jury for leniency is mere surplusage and does not vitiate the verdict. 53 Am. Jur., Trial, § 1061, p. 735; Annotations, “Recommendation of Mercy” 17 A. L. R. 1117, 1156 (1922); 87 A. L. R. 1362, 1370 (1933); 138 A. L. R. 1230, 1245 (1942).

The charge as to leniency was not reversible error. However, juries should not be instructed that they can make such recommendations. If inquiry is made by the jury, the judge should firmly charge that they have no right to make such a recommendation and that they should not be concerned with punishment (except, of course, in first degree murder prosecutions).

The judgment of conviction is reversed and the ease remanded as to Morales.


source: Caselaw Access Project

author: Kolovsky, J. A. D.,

license: Public Domain

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. DENNIS MOORE, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued September 14, 1970
    Decided October 8, 1970.

      Before Judges Conford, Kolovsky and Carton.

      Mr. Daniel R. Coburn, Assistant Deputy Public Defender, argued the cause for appellant (Mr. Stanley C. Van Ness, Public Defender, attorney).

      Mr. David S. Baime, Assistant Prosecutor, argued the cause for respondent (Mr. Joseph P. Lordi, Essex County Prosecutor, attorney).
   The opinion of the court was delivered by

Kolovsky, J. A. D.,

Defendant appeals from his conviction, after a jury trial, of having, while armed with a knife, robbed one Littleton Morris.

The State’s proofs showed that Morris was accosted by two men and a woman, all strangers to him, as he was walking along Howard Street, Newark, during the early hours of March 7, 1968. They demanded his money; when he refused, he was threatened with knives and forced to enter a first-floor room at 61 Howard Street. There he was relieved of his wallet, stripped of his clothing, beaten and then ordered to get dressed and return with more money. He left the premises and notified the police, who returned to the room with him. They found only a lighted room empty of occupants.

On the following day, March 8, Morris went to police headquarters. While walking with Detective Melillo into the municipal courtroom where he was to sign a complaint, Morris was told by Melillo that there were some people in the courtroom who on an earlier date had been arrested at the 61 Howard Street address. Melillo suggested that Morris look at the people in the courtroom to see if perchance any of his assailants were among them. Morris walked into the courtroom where there were, according to him, "a lot of peoples.” (Defendant concedes that there were more than ten persons there.) Seated among the group was defendant, whom Morris identified as one of his assailants. It is uncontradicted that defendant was not then in custody. Defendant testified he had arrived at the courtroom after leaving his uncle’s home in Brooklyn earlier that morning.

No objection was interposed when Morris made a definitive in-court identification of defendant nor when he and Melillo testified as to his out-of-court identification of defendant. The first criticism thereof occurred during the course of defendant’s argument for a dismissal at the end of the State’s case. The objection then made was not timely; the objection should have been interposed when the identification testimony was offered and a request made for a voir dire hearing. See State v. Mars, 107 N. J. Super. 36, 39 (App. Div. 1969), certif. den. 55 N. J. 319 (1970); State v. Mustacchio, 109 N. J. Super. 257, 262 (App. Div. 1970). Nevertheless we prefer to deal with the merits of defendant’s argument.

Defendant’s motions to strike the identification testimony were bottomed primarily on a charge that the out-of-court identification procedure was “so unnecessarily suggestive and conducive to irreparable mistaken identification” that to permit such identification evidence to he used would deny defendant due process of law. Stovall v. Denno, 388 U. S. 293, 302, 87 S. Ct. 1967, 1972, 18 L. Ed. 2d 1199 (1967). That argument is not repeated on appeal; in any event, the trial court’s rejection thereof finds full support in the record.

On appeal defendant argues, relying on United States v. Wade, 388 U. S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967) and Gilbert v. California, 388 U. S. 263, 87 S. Ct. 1951, 18 L. Ed. 2d 1178 (1967), that under the Sixth Amendment of the United States Constitution he was entitled la counsel when Morris’ out-of-court identification was made. It was therefore, he says, not only error to deny his motions at the end of the State’s case and at the close of all the evidence to strike the testimony of Morris and of Detective Melillo with respect to that identification hut also error to refuse to strike Morris’ in-court identification of defendant allegedly tainted by the “unconstitutional” out-of-court identification. We find no substance in the argument.

Defendant misconceives not only the scope of the Wade doctrine but also the issue we are called upon to decide in this case. That issue is not, as defendant’s argument assumes, whether the Wade rule requiring the assistance of counsel should be applied to pre-indictment confrontations as well as post-indictment confrontations.

Here we need not reach or decide that question to which the courts have given divergent answers. Some courts, noting that Wade involved a post-indictment lineup and that the Supreme Court’s precise holding was that “for Wade the post-indictment lineup was a critical stage of the prosecution at which he was ‘as much entitled to such aid [of counsel] * * * as at the trial itself,’ ” Wade, supra, 388 U. S. at 337, 87 S. Ct. at 1937, have limited the requirement of counsel to post-indictment confrontations. See e. g., People v. Palmer, 41 Ill. 2d 571, 344 N. E. 2d 173 (Sup. Ct. 1969). Others have extended the rule to situations involving pre-indictment confrontations of an accused. See e. g. Rivers v. United States, 400 F. 2d 935 (5 Cir. 1968); State v. Edge, 111 N. J. Super. 182, 187 (App. Div. 1970); see also, however, State v. Thomas, 107 N. J. Super. 128, 133-135 (App. Div. 1969); State v. Matlack, 49 N. J. 491, 499 (1967), cert. den. 389 U. S. 1009, 88 S. Ct. 572, 19 L. Ed. 2d 606 (1967).

Where, as here, the out-of-court identification takes place during the investigatory phase of the case, before the defendant is arrested or taken into police custody, Wade does not in any event apply; the presence of counsel is not required. Cf. State v. Butler, 256 A. 2d 588, 590-591 (Me. Sup. Jud. Ct. 1969); United States v. Davis, 399 F. 2d 948, 952 (2 Cir. 1968), cert. den. 393 U. S. 987, 89 S. Ct. 465, 21 L. Ed. 2d 449 (1968); Bratten v. Delaware, 307 F. Supp. 643 (D. Del. 1969).

In the case before us there is even less basis for the claimed right to counsel than in Butler, Bratten and Davis, supra, in each of which the claim was rejected by the court, for here defendant was not even a suspect when the confrontation took place. He was only one of a group of unknown people in a courtroom.

Finally, we find no merit in the second ground for reversal argued by defendant. The trial court was correct in ruling that the prosecutor’s reference to the Public Defender’s Office did not call for the grant of a mistrial.

The judgment of conviction is affirmed.

      Indeed, even police custody does not trigger the right to counsel when the identification takes place in circumstances amounting to an on-the-scene confrontation. State v. Thomas, 107 N. J. Super. 128, 134 (App. Div. 1969) and cases cited therein; United States v. Davis, supra.


author: Labrecque, J. A. D.

text:
    STATE OF NEW JERSEY, BY THE COMMISSIONER OF TRANSPORTATION, APPELLANT, v. TOWNSHIP OF SOUTH HACKENSACK, ETC., ET AL., RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued June 22, 1970
    Decided October 1, 1970.

      Before Judges Kilkenny, Labrecque and Leonard.

      Mr. William J. McCormack, Deputy Attorney General, argued the cause for appellant (Mr. George F. Kugler, Jr., Attorney General of New Jersey, attorney; Mr. Edward D. McKirdy, Deputy Attorney General, on the brief).

      Mr. Ralph W. Chandless argued the cause for respondents (Messrs. Chandless, Weller & Kramer, attorneys).
   The opinion of the court was delivered by

Labrecque, J. A. D.

In this condemnation case the State, by the Commissioner of Transportation, appeals from a judgment awarding defendant Township of South Hackensack (the township) $26,650 for land taken by the State in connection with the construction of Interstate Route 80, a limited access freeway running in a general westerly direction from the George Washington Bridge.

The present proceedings were instituted pursuant to the Eminent Domain Act, N. J. S 8. A. 20:1-1 et seq., to fix just compensation for two parcels of land which lay athwart the path of the new freeway, parcel 205 containing 16,150 square feet, and parcel 206, 5,173 square feet. The State sought a fee simple absolute in both parcels. N. J. S. A. 27:7-22.2. They were located in the South Hackensack industrial park, located immediately east of the New Jersey and New York branch of the Erie-Lackawanna Railroad, and comprised a right-of-way occupied by railroad freight tracks and switches utilized by the Industrial Commission of the Township of South Hackensack to connect the industries in the area with the railroad. Since there was to be no access to Route 80, the result of the taking was to entirely sever that railroad siding.

Following other litigation between the parties, which culminated in an order directing the commissioner to proceed with condemnation, the present action was instituted on February 23, 1967. The Condemnation Commission awarded $25,325 for parcel 205 and $2,586.50 for parcel 206. The State thereupon appealed to the Law Division where a unanimous award of $23,030 for parcel 205 and $3,620 for parcel 206 was returned by the jury. The present appeal followed.

The State raises two points, which may be briefly summarized as follows: (1) since each parcel of land taken comprised what had originally been the bed of a public street no compensation was recoverable and (2), if compensation was recoverable, the fact that the lauds taken were dedicated to public use precluded an award for their fair market value.

I

In urging that no compensation whatever was payable the State relies upon State Highway Commissioner v. Elizabeth, 102 N. J. Eq. 221 (Ch. 1928), aff'd 103 N. J. Eq. 376 (E. & A. 1928). We hold the facts in that case to be clearly distinguishable from those here. There the court was dealing with the “Spring Street Route” which was followed by the State Highway Commission in constructing State Highway Route 25 through the City of Elizabeth. The award sought in that case was not, as here, for the physical taking of the bed of a cross street which resulted in a permanent severing of the cross street with no access therefrom to the new highway. It is likewise clear that the comments of the Vice Chancellor in that case, on which the State relies, were in no wise essential to its adjudication. See State v. Cooper, 24 N. J. 261, 269 (1957), cert. den. 355 U. S. 829, 78 S. Ct. 41, 2 L. Ed. 2d 42 (1957). On the contrary, the property actually involved was not the bed of a street but property owned in fee and used as a corporation yard by the City of Elizabeth for which the State had offered to pay. The court assumed it to be held in the city’s private or proprietary capacity, as to which it concluded that “the municipality stands in the same position as any private individual or corporation.” 102 N. J. Eq. at 226-227.

Under the State’s theory, a municipality would be left without remedy in a situation where, in laying out a State highway, each intersecting street in the municipality was severed and left without access to the new highway. We need not determine to what extent State Highway Commissioner v. Elizabeth may be applicable to a situation where the State adopts the alignment of a city street for a State highway. Assuming that the railroad siding was constructed on the bed of dedicated streets, we hold only that it was never intended to eliminate the requirement of compensation for the taking in fee of such portion of the bed of such streets as lay across the proposed alignment of a new State highway and would be left without access to the new highway when the latter was completed.

We are satisfied that the point raised is controlled by State v. Cooper, supra. In that case, the State Highway Commissioner sought a declaratory judgment that the Borough of Fort Lee was entitled to no compensation for the taking of publicly maintained park lands bordering on Hudson Terrace. In 1851, a filed map had shown, in addition to a building lot subdivision, an area, designated as a “Public Square,” which area had been maintained by the borough as a tax exempt public park overlooking the New York skyline. In the course of construction of the Palisades Interstate Parkway, the commissioner sought to acquire the entire area in fee simple absolute for public use without payment of compensation. Named as defendants in the suit were both the borough and the successors in interest of the original owner-dedicator.

The court there held that, notwithstanding the prior dedication of the plot to public use, State Highway Commissioner v. Elizabeth, supra, did not authorize its taking without payment of compensation, and though it found that Port Lee held only sort of secondary title in trust for the purposes of the dedication,” it directed the commissioner to proceed to acquire title under the Eminent Domain Act, N. J. S. A. 20:1-1 el seq., and to pay compensation for the undivided fee absolute. 24 N. J. at 271.

The State seeks to distinguish State v. Cooper on the ground that it involved a public park rather than a highway. We are satisfied that the rationale underlying it is equally applicable here.

The State’s argument assumes that Georgia and Plorida Streets had previously been dedicated to public use by a prior owner. See Highway Holding Co. v. Yara Engineering Corp., 22 N. J. 119, 125-26 (1956); N. J. Highway Authority v. Johnson, 35 N. J. Super. 203, 211 (App. Div. 1955). There was some proof that these streets were delineated on a map filed in 1914, and that, in 1948, the owner had conveyed additional land to the township for widening them. Assuming it to have been so established, formal acceptance by resolution of the offer of dedication was not necessary, but acceptance could be shown by acts of dominion and control exercised over it by the local governing body, provided such acceptance was unequivocal, clear and satisfactory. Sarty v. Millburn Tp., 28 N. J. Super. 199, 205-206 (App. Div. 1953); see also Velasco v. Goldman Builders, Inc., 93 N. J. Super. 123, 138 (App. Div. 1966); Schmidt v. Spaeth, 82 N. J. L. 575, 578 (E. & A. 1911). It could be shown by either direct or circumstantial evidence. Sarty v. Millburn Tp., supra, at 206.

Counsel for the township does not dispute the State’s contention that the streets in question were originally dedicated for street purposes. While there was no proof of formal acceptance of the dedication, it clearly appeared that the township either directly or through its industrial commission, had been and still was using the bed of both streets as the right-of-way for a rail freight line serving plants in the South Hackensack industrial park. This qualified as an acceptance for public use, and was no less so because the actual use of the area taken was currently restricted to freight cars serving only a portion of the public. See Weehawken Tp. v. Erie Railroad Co., 20 N. J. 572, 581-582 (1956); cf. People’s Traction Co. v. Atlantic City, etc., Railroad Co., 71 N. J. L. 134, 135 (1904). There is no challenge to the township’s right to use the lands taken for railroad freight purposes. Other streets presumably furnished access to the area by ear and truck. If those industries requiring rail service were to move away, there was nothing to prevent the township from removing the tracks and resurfacing the streets in question for the use of motor vehicles to serve such industries as would replace them.

II

The State excepted to that portion of the court’s charge in which the jury was instructed that it was not to be concerned as to the extent of the township’s title, i. e., that it possessed less than a fee, and that “The State is taking a fee which means all of the title, and compensation should be in full for all of the title whether, or without regard to who may eventually receive the same, if it is not this particular named defendant, Township of South Hackensack. That would have to be determined in an ancillary proceeding after this. * * * What we want you to do is fix the fair and just award for this particular taking.” It argues that, since the lands in question had been dedicated to public use and the township could not convey them in fee, it was error to permit the jury to bring in a verdict which represented their full value. It concomitantly challenges other rulings of the trial judge which comported with the cited portion of the charge.

Municipalities, no less than private persons, may recover compensation for lands taken by the State for public use, even though such lands may already be devoted to other and different public uses. Cf. State v. Cooper, supra, 24 N. J. at 270; Bergen Cty. Sewer Authority v. Little Ferry, 7 N. J. Super. 213, 218 (App. Div. 1950). There can be no question as to the power of the State to acquire a fee simple absolute in lands being condemned for highway purposes, even though there may be outstanding questions as to their ownership. State v. Cooper, supra, at 268. Here, the State’s determination to acquire the entire fee measured its liability for the payment of compensation. The situation is distinguishable from those eases in which the State acquires only a limited interest in the land. See Tennessee Gas Transmission Co. v. Maze, 45 N. J. Super. 496 (App. Div. 1957). As was said in State v. Cooper, supra:

In the present ease the State Highway Commissioner appropriately instituted a condemnation proceeding under the Eminent Domain Act. He joined the borough as well as the successors in interest of Joseph Coyte [the dedicator] and sought the fixing of the just compensation to be paid for the lands he was taking. His rightful concern was with the total value of the foe absolute in the lands, including the “secondary title” (Hill v. Borough of Belmar [3 N. J. Misc. 254], supra) which the borough held and the “bare legal title” which the successors in interest of Joseph Coyte held (Hill v. Borough of Belmar, supra), and his obligation was to pay just compensation for the undivided fee. See 4 Nichols, supra, §12.36; Herr v. Board of Education, 82 N. J. L. 610 (E. & A. 1912). [24 N. J. at 271 emphasis added]

It follows that the jury was properly instructed to bring in a lump sum verdict rather than a separate verdict representing the interest of the township, as representative of the public, as distinguished from the interests of the dedicator or the adjoining property owners.

The State urges that, even so, the value of the township’s interest is, at most, nominal and, in any event, could not exceed the cost to the township of furnishing substitute facilities. We disagree. In State v. Cooper the court observed:

In the course of or ancillary to the pending condemnation proceeding of the State Highway Commissioner, the respective values of the secondary title taken from the borough and the bare legal title taken from the successors in interest of Joseph Coyte may justly be fixed. See R. R. 4:92. Cf. New Jersey Highway Authority v. J. & F. Holding Co., 40 N. J. Super. 309 (App. Div. 1956); State, by and through State Highway Comm. v. Burk, 200 Or. 211, 265 P. 2d 783, 805 (Sup. Ct. 1954). On that issue it would appear that, at the actual moment of the taking, the secondary title rather than the bare legal title was the interest of substantial value, for the former then carried with it the actual right of use and enjoyment whereas the latter then carried with it no right of use and enjoyment but merely the possibility of obtaining it if the dedication toas improperly abandoned. [24 N. J. at 271-272; emphasis added]

In arguing that, since there was no proof that the township was required to replace the land in question either by a new street or railroad siding, no damages were recoverable, the State cites Boston Chamber of Commerce v. Boston, 217 U. S. 189, 30 S. Ct. 459, 54 L. Ed. 725 (1909); United States v. Des Moines County, Iowa, 148 F. 2d 448, 160 A. L. R. 953 (8 Cir. 1945), cert. den. 326 U. S. 743, 66 S. Ct. 56, 90 L. Ed. 444 (1945); United States v. City of New York, 168 F. 2d 387, 389 (2 Cir. 1945); City of Fort Worth, Texas v. United States, 188 F. 2d 217 (5 Cir. 1951); State of Washington v. United States, 214 F. 2d 33 (9 Cir. 1954), cert. den. 348 U. S. 862, 75 S. Ct. 86, 99 L. Ed. 679 (1954); Franklin County, Georgia v. United States, 341 F. 2d 106 (5 Cir. 1965). The point was not raised in the trial court but we have considered it and find it to be without merit.

Initially, we note that the court below was dealing with lands in which parties other than the township may have had an interest — and which were being used for a special purpose, i. e., to carry railroad sidings. The power to direct the manner in which property may be acquired for public use is vested in the Legislature. Monmouth County Freeholders v. Red Bank and Holmdel Turnpike Co., 18 N. J. Eq. 91 (Ch. 1866); State Highway Comm’n v. Dover, 109 N. J. L. 303, 306 (E. & A. 1932). Eegardless of the procedure or measure of damages prescribed in federal and some other state jurisdictions, our Legislature has ordained that municipally-owned land is to be acquired for state highway purposes by gift, devise or purchase, “or by condemnation in the manner provided in chapter 1 of the Title Eminent Domain (§ 20:1-1 et seq.).” N. J. S. A. 27:7-22, 27:7-23. The Eminent Domain Act requires compensation to be paid to the owner according to the “just value” of the lands taken. State Highway Comm’n v. Dover, supra, at 306. In eminent domain, the commissioners are required to make “a just and equitable appraisement of the value” of the property taken. N. J. S. A. 20 :l-9. On appeal from the commissioners’ award the court has no power to go beyond the clear direction of the statute to fix the value of the lands taken and damage by reason of such taking. State Highway Comm’n v. Dey, 110 N. J. L. 197, 198 (E. & A. 1932); cf. State v. Cooper, supra, 24 N. J. at 270.

Here the commissioner, whose rightful concern was with the total value of the fee in the lands, named as parties in the complaint not only the township, as “owner of record,” but the original dedicator, Geisler, and his heirs and successors in interest, the South Hackensack Industrial Commission and those abutting landowners who might have an interest therein. The damages awarded took the place of the land with respect to all rights and interests dependent on and incident to it. 29A C. J. S. Eminent Domain, § 196, at 864 (1965); State v. Nordstrom, 54 N. J. 50, 53 (1969); N. J. Highway Authority v. J. & F. Holding Co., 40 N. J. Super. 309, 314-315 (App. Div. 1956). The possibility of claims adverse to the claim of the township (the record reveals none such to date) did not preclude the rendition of a lump sum verdict which, since a fee had been taken, encompassed all interests in the land. State v. New Jersey Zinc Co., 40 N. J. 560, 574 (1963); Jala v. Berkeley Savings & Loan Ass’n, 104 N. J. Super. 394, 402 (App. Div. 1969); State Highway Comm’n v. Dey, supra, at 199. Such being the case, the basic measure of damages was the fair market value of the lands taken, Trenton v. Lenzner, 16 N. J. 465, 475-478 (1954); State Highway Comm’n v. Dover, supra, 109 N. J. L. 306-307, plus any diminution in the value of the remainder due to the taking, Sterner v. Nixon, 116 N. J. L. 418 (E. & A. 1936); State Highway Commissioner v. Azzolina Land Corp., 101 N. J. Super. 103, 106 (App. Div. 1968). The settlement of any question of title or of entitlement to the condemnation proceeds was not for the jury, R. 4:73-2, but was a matter which could be determined in ancillary proceedings, R. 4:73-9, formerly R. R. 4:92-10 and 11.

The judgment is affirmed.


author: Per Curiam.

text:
    JOSEPH A. DI RIENZO, APPELLANT, v. BOARD OF MANAGERS OF THE NEW JERSEY STATE PRISON, RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued October 5, 1970
    Decided October 9, 1970.

      Before Judges Goldmann, Leonard and Mountain.

      Mr. Franz J. Skok, assigned counsel, argued the cause for appellant.

      Mr. Joseph T. Maloney, Deputy Attorney General, argued the cause for respondent (Mr. George F. Kugler, Jr., Attorney General, attorney.)
   Per Curiam.

While defendant was serving concurrent sentences of 1-4 years and 3-3 years at the State Prison, he was involved in an incident which resulted in a hearing before a Disciplinary Court. He was found guilty of flagrant misconduct, with a recommendation to the Board of Managers that defendant forfeit 365 days of earned commutation time. After reviewing the case the Board affirmed the finding of the Disciplinary Court that defendant had been guilty of flagrant misconduct, but forfeited only 83 days’ commutation time instead of 365.

Defendant had been charged with creating a disturbance, throwing the contents of a bucket containing urine at the prison officials, attacking the officers and attempting to strangle one of them. He allegedly admitted to Prison Warden Pinto that he had thrown the contents of the bucket a.t the officers. He is also alleged to have assaulted another inmate after hearing the Disciplinary Court’s determination.

We are asked to rule that the action of the Board of Managers in subdelegating to the Disciplinary Court its authority to declare a forfeiture of part of defendant’s earned commutation time contravened the provisions of N. J. S. A. 30:4-140. Further, that defendant was entitled under the due process clauses of the Federal and State Constitutions to a hearing before the Board to show why commutation time should not be declared forfeited.

N. J. S. A. 30:4-140, after providing for commutation time credits, declares:

* * * In case of any flagrant misconduct the board of managers may declare a forfeiture of the time previously remitted, either in whole or in part, as to them shall seem just.

Defendant argues that the .Board of Managers may not lawfully delegate to anyone else its authority to declare a forfeiture, and forfeiture can properly follow only upon a finding of flagrant misconduct after a full hearing before the Board itself.

It is first to be observed that the quoted statute contains no provision expressly permitting delegation, nor does it expressly or inferentially forbid delegation. We do not deal here with the typical regulatory agency that has become so important a part of government. Bather, we deal with a body charged with a duty entrusted to it for disciplinary purposes, a body whose overall responsibility is to form a poliey governing the institution in its ultimate care, and to implement that policy with an effective program of administration.

Every prisoner, upon entering the New Jersey State Prison, is given an “Inmate Buie Book” which contains the rules of the institution and the prisoner’s responsibilities and opportunities to make good use of his time. Under the heading of “Loss of Commutation Time,” the prisoner is informed that loss of time is recommended by the Disciplinary Court, subject to the approval of the Board of Managers. Further, under “Infraction of Buies,” the prisoner is told that if he is charged with a violation of an institution rule, the officer making the charge will so report in writing to the Center Keeper, who will provide clarification for the benefit of the Disciplinary Court. The goal is to process all charges within a 48-hour period, after which the prisoner is advised when he will appear before the Disciplinary Court, at which time he may present any additional information to support his case. The court will then render a decision. These rules are clear and easily understood. Indeed, like the other rules, they reflect a necessary administrative procedure to be followed in a prison environment.

The purpose of N. J. S. A. 30:4-140 is correctional and disciplinary. Viewed in this limited light it appears that the rules and regulations which have generally been held necessary in respect to agency action in a traditional sense should not be held controlling here. What was done in defendant’s case was in conformity with the Board’s rules and regulations for the administration of the State Prison. Cf. Lipschitz v. State, 43 N. J. Super. 522, 526 (App. Div. 1957); McBride v. McCorkle, 44 N. J. Super. 468, 473-474 (App. Div. 1957).

Plaintiff has informed us that within a 12-month period ending May 31, 1970 there was a total of 5,481 disciplinary hearings that came under the jurisdiction of the Board of Managers. It is obvious that the exigencies of administration make impossible a requirement that all of these matters be heard initially by the Board.

A prisoner, of course, is entitled to notice of the misconduct with which he is charged, as well as an opportunity to be heard. This was done here, and the burden therefore became his to show arbitrary and improper action by the Board. He failed to do this.

We find an implied power in the Board of Managers to delegate to the Disciplinary Court or to any other like subordinate body the authority to hear these matters in the first instance, granting to the prisoner the essential rights just referred to, with the report and recommendation of the subordinate body forming the basis for the Board’s final decision. Cf. R. H. Macy & Co., Inc. v. Director, Div. of Taxation, 77 N. J. Super. 155, 176-177 (App. Div. 1962).

Affirmed.


text:
    ONONDAGA TRUCK LEASE, INC., A CORPORATION, PLAINTIFF-RESPONDENT, v. VICTOR C. HOVELL, INDIVIDUALLY AND t/a CIRCLE SERVICE, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued October 5, 1970
    Decided October 9, 1970.
    Before Judges Goldmann, Leonard and Mountain.

      Mr. Joseph J. Talafous argued the cause for appellant (Mr. George H. Schneider, on the brief).
   Eespondent did not file a brief.

Per Curiam.

We affirm for the reasons stated in the reported opinion of Judge Cozzi, 107 N. J. Super. 463. Since there is no proof that there was an indivisible contract between the parties covering services, repairs and materials furnished to all of the vehicles leased to Seaboard by plaintiff, we are not called upon to determine whether, had such been the ease, defendant would have been entitled to a lien on the specific vehicle seized for the entire amount of his bill for services rendered to all the Seaboard vehicles.


text:
    BOROUGH OF NEW SHREWSBURY, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. BLOCK 105, LOT 11, ET ALS., DEFENDANTS, AND HERBERT HARVEY, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued September 15, 1970
    Decided October 7, 1970.
    Before Judges Lewis, Matthews and Mintz.

      Mrs. Sylvia B. Pressler argued the cause for appellant Herbert Harvey.

      Mr. Martin M. Barger argued the cause for respondent (Messrs. Reussille, Cornwell, Mausner & Carotenuto, attorneys) .
   Per Curiam.

The questions raised on this appeal are affirmed substantially for the reasons expressed by Judge Lane in his opinion for the Chancery Division reported at 104 N. J. Super. 360, and his oral opinions of January 30, 1969 and March 7, 1969.


text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. ALBERT RILEY, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued October 13, 1970
    Decided October 20, 1970.

      Before Judges Goldmann, Leonard and Mountain.

      Mr. William A. O’Brien, designated counsel, argued the cause for appellant (Mr. Stanley C. Van Ness, Public Defender, attorney).

      Mr. Willard Bernstein, Assistant Prosecutor, argued the cause for respondent (Mr. Gerard J. DiNicola, Salem County Prosecutor, attorney).
   Per Curiam.

Defendant appeals his conviction following a jury verdict of guilty on an indictment charging him with carnal abuse.

Defendant first argues that the victim’s testimony was not in itself sufficient to prove her age, and that the trial judge did not charge as to the law respecting age. Tt is well settled that one may testify to one’s own age. State v. Huggins, 83 N. J. L. 43, 44 (Sup. Ct. 1912), aff’d 84 N. J. L. 354 (E. & A. 1913), irrespective of the consideration that the fact of age is one of the essentials that must be established as an element of the crime. State v. Girone, 91 N. J. L. 498, 499 (Sup. Ct. 1918). The victim’s testimony as to her age is sufficient, even where there is no corroboration. State v. Calabrese, 99 N. J. L. 312, 315 (Sup. Ct. 1924), aff’d p. c. 100 N. J. L. 412 (E. & A. 1924); and see 1 Wharton, Criminal Evidence (12th ed. 1955), § 264 at 599, and 2 Wigmore on Evidence (3d ed. 1940), § 667 at 785-786. Although the trial judge did not specifically instruct the jury that it had to find as an element of the crime that the victim was 14, he did read the statute and the indictment, both of which specifically indicated that the girl had to be between the ages of 12 and 16 for defendant to be found guilty.

Defendant next contends that the so-called Donohue charge on circumstantial evidence should have been given. See State v. Donohue, 2 N. J. 381, 390 (1949). The charge on circumstantial evidence accorded with the rule in State v. Mayberry, 52 N. J. 413, 436-437 (1968).

Finally, defendant raises as plain error the trial judge’s failure to charge flight, claiming that flight was a "most significant” phase of the case. There was no such request to charge, nor was there any objection to the failure to so charge. Aside from the fact that the proofs do not point to flight, as it is well understood in the law, it was to defendant’s advantage that flight not be charged. Had such a charge been given, the jury could have inferred that the flight was done with a consciousness of guilt and in an effort to avoid an accusation based on that guilt. See State v. Sullivan, 43 N. J. 209, 328-239 (1964). Accordingly, we find no plain error, i. e., an alleged legal impropriety affecting defendant’s substantial rights and of a sufficiently grievous nature to have the clear capacity to bring about an unjust result. State v. Gardner, 51 N. J. 444, 456 (1968).

The judgment is affirmed.


author: Leonard, J. A. D.

text:
    S., ON BEHALF OF HER DAUGHTER, L., AN INFANT UNDER THE AGE OF 14 YEARS, PLAINTIFF-APPELLANT, v. H. M. AND E. M., DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued September 28, 1970
    Decided October 16, 1970.

      Before Judges Goldmann, Leonard and Mountain.

      Mr. Leonard H. Wallach argued the cause for appellant (Mr. David H. Dugan, III, Director, Camden Regional Legal Services, Inc., attorney).

      Mr. Charles A. Cohen argued the cause for respondents.
   The opinion of the court was delivered by

Leonard, J. A. D.

Plaintiff appeals from a judgment discharging a writ of habeas corpus and awarding custody of her illegitimate infant daughter to defendants.

In 1960 plaintiff, then 14 years of age, after experiencing difficulties with her mother, moved in with defendants, her aunt and uncle, and remained there until 1968. L. the daughter here involved, was born on July 15, 1964. About a year later, by reason of plaintiff’s alleged conduct, her aunt demanded that she leave. Plaintiff complied but left her infant daughter with defendants. Some six months thereafter plaintiff returned to the house, remained about two or three weeks, and then disappeared.

In June 1966 plaintiff, who was then living with her mother, gave birth to her second illegitimate child. In early 1968 she went on county welfare and took an apartment in Camden. Then defendants returned L. to her, subject to week-end visitations with them. In June 1968 the infant was brought to defendants’ home where she has remained ever since. The aunt testified that at the time she went to plaintiff’s apartment on a number of successive days but could not find her. About a week later plaintiff called and stated she had been out “balling.” Still later she visited her aunt but did not ask to take the child with her. However, shortly before instituting the present proceedings, plaintiff demanded the return of the child but defendants refused. On that day plaintiff filed a criminal complaint in the municipal court charging hex aunt with kidnapping.

Three days later (August 5, 1968), plaintiff instituted the present habeas corpus proceeding. The next day defendants appeared in court with the infant. The case thereupon proceeded to trial, which was continued to and concluded on August 27.

Plaintiff first contends that the trial court lacked subject matter jurisdiction to award custody of the child to defendants in this habeas corpus proceeding filed in the Law Division of the Superior Court. She argues that the only issue raised by the proceeding was the illegal detention of the child, and that defendants did not counterclaim for nor otherwise affirmatively seek custody. Further, she asserts that child custody matters are cognizable only in the Chancery Division of the Superior Court. This contention and plaintiff’s arguments in support thereof are without merit.

In English v. English, 32 N. J. Eq. 738 (E. & A. 1880), a husband filed a habeas corpus petition, requesting that two of his children, allegedly illegally taken by his wife, be brought into court and that he be awarded their custody. In affirming the trial court’s award of the custody of the children to the wife the court stated:

The jurisdiction of the court of chancery to settle and dispose of the care and custody of' infants, through a procedure like this, is established. The parties, in their litigation, have, by their pleadings and proofs, presented issues within the cognizance of that court, under its general jurisdiction as public guardian of the rights and interests of infants. Such jurisdiction is not, by the use of the writs of habeas corpus to bring the infants into court, cut down and restricted to those limits which outline and bound a strict proceeding on habeas corpus. The writ serves a purpose merely ancillary to the more general design of the suit, to secure a definite disposition of them, as wards of the court, [at 742]

See In re Alsdorf, 142 N. J. Eq. 246 (Ch. 1948). This doctrine has also been applied to proceedings involving children born out of wedlock. See In re Mrs. M., 74 N. J. Super. 178 (App. Div. 1962); In re R. L., 137 N. J. Eq. 271 (Ch. 1945); In re Petagno, 24 N. J. Misc. 279, 48 A. 2d 909 (Ch. 1946).

It was plaintiff who first raised the issue of custody. Her complaint alleged that she was the “sole person entitled to custody” of the child and she requested, in addition to having the child brought before the court, “judgment awarding custody.” Her counsel’s statement, made at oral argument, that these references to custody were inadvertently placed in the complaint is not persuasive. The record is devoid of any attempt to delete them by amendment or otherwise.

Plaintiff made no motion to transfer the proceedings from the Law Division to the Chancery Division. Moreover, under our 1947 Constitution, law and equity jurisdictions are merged into the Superior Court, which court possesses original jurisdiction for all causes of action. Asbestos Fibres, Inc. v. Martin Laboratories, Inc., 12 N. J. 233, 239 (1953); Mayor, etc., of Alpine v. Brewster, 7 N. J. 42, 51 (1951). The Law Division and the Chancery Division may each exercise the powers and functions of the other when the ends of justice so require, and legal and equitable relief may be granted in any cause. N. J. Const. (1947), Art. VI, § III, par. 4. The Law Division, having obtained jurisdiction of the subject matter by the filing of the writ, had authority to completely determine the entire controversy before it, including the issue of custody. See Stamen v. Metropolitan Life Ins. Co., 41 N. J. Super. 135, 140 (App. Div. 1956).

Plaintiff’s next contention is that defendants failed to serve or file a return to the writ of habeas corpus, thereby defaulting and voiding their appearance before the court. N. J. S. A. 2A:67 — 20 provides that a return to the writ shall be made by those upon whom it is served. N. J. S. A. 2A:67-22 requires that the return shall set forth, fully and explicitly, whether defendant has the party in his custody, and if he has, the true cause of the confinement. Thereafter, plaintiff may file an answer to the return, denying the facts set forth therein and alleging other material facts. N. J. S. A. 2A:67-23. Thus, plaintiff states that defendants were barred from litigating the issue of custody.

However, plaintiff did not object to defendants’ failure to file such a return on the first day of trial, the day following service of the writ. Objection was not raised until the second session, some three weeks later. Defense counsel in his opening clearly enunciated the pertinent issues to be “the question of the fitness of this mother to have the custody of this child.” Thus, plaintiff was at that early date apprised of defendants’ position and had ample opportunity to prepare to meet it. Further, the trial court subsequently allowed a formal return to be filed nunc pro tunc. We conclude that this narrow technical ground should not now prevent a determination of this matter on its merits. Passalaqua v. Biehler, 46 N. J. Super. 63, 69-71 (App. Div. 1957). See also State v. Wilson, 135 N. J. L. 398, 402-03 (Sup. Ct. 1947).

Plaintiff also argues that the trial court struck all testimony as to her unfitness as a mother. She alleges that therefore there was no evidence before the court upon which it could have made its finding that she was unfit and thus award custody of the child to defendants.

Plaintiff had moved at the close of all evidence to strike all testimony not relating to the “illegal restraint” of the child. Although it appears that the court at first granted this motion, there is apparent confusion in the -record as to whether the court intended to do so, for the court thereafter found plaintiff to be an “unfit mother” and stated “I deny the motion, and grant Custody to the Aunt.” As we have previously held the issue of custody was properly before the court and therefore the motion should have been denied. However, in view of the nature of this litigation and the time that it has been pending, we, rather than remanding for the trial court’s explanation, shall, pursuant to R. 2:10-5, exercise original jurisdiction and thus bring the matter to a prompt and complete determination.

Upon a reading of the entire record we conclude that plaintiff is an unfit mother. A detailed recitation of the evidence which establishes her immorality and indecency will serve no useful purpose. Suffice it to say, wo And that it would be prejudicial to the welfare of the infant child to leave her in plaintiff’s care and environment. The mother’s maternal right to her child must be considered subordinate to what is truly in the child’s best interest. Cf. DiBiano v. DiBiano, 105 N. J. Super. 415, 418 (App. Div. 1969). Accordingly, custody of the infant is awarded to defendants with whom she has happily resided in the recent years.

Plaintiff’s Anal point, that as a mother she had a constitutional right to bring up her child in her own home, is without merit, particularly in the circumstances of this case.

Judgment affirmed.


author: Pee Curiam.

text:
    NATHAN BERNSTEIN, AS A CITIZEN AND TAXPAYER OF THE BOROUGH OF POMPTON LAKES, PLAINTIFF-RESPONDENT, v. DONALD KROM AND THE MAYOR AND COUNCIL OF THE BOROUGH OF POMPTON LAKES, DEFENDANTS-APPELLANTS.
    Superior Court of New Jersey Appellate Division
    Argued October 5, 1970
    Decided October 16, 1970.

      Before Judges Sullivan, Collester and Labkecque.

      Mr. Lawrence T. Isenberg argued the cause for appellants (Messrs. Isenberg & Isenberg, attorneys).

      Mr. Jerome A. Vogel argued the cause for respondent (Messrs. Jeffer, Walter, Tierney, DeKorte, Hopkinson & Vogel, attorneys).
   Pee Curiam.

Defendants appeal from a summary judgment ordering the mayor and council of the Borough of Pompton Lakes to adopt a resolution directing the borough attorney to institute an action to recover salary overpayments made to the mayor and other members of the governing body of the borough holding office from January 1, 1967 onward.

By his complaint in lieu of prerogative writs plaintiff Nathan Bernstein, a taxpayer, sought, so far as concerned the present appeal, a declaration that certain salary ordinances affecting the salaries of the mayor and members of the council of the borough were illegal, and an order directing the members of the borough governing body to return the allegedly illegal payments or to adopt a resolution ordering the borough attorney to institute an action to recover them.

Pompton Lakes is an incorporated borough operating under a mayor and council form of government consisting of the mayor and six councilmen. Prior to 1967 the annual salary of the mayor had been $750 and that of each councilman $500. However, for the years 1967, 1968 and 1969 the mayor and council adopted a salary ordinance fixing the annual salary of the mayor at $1,500 and that of each councilman at $1,000, and payments were made accordingly.

According to the federal census of 1960 the population of the borough was 9,445. With certain exceptions not here relevant, boroughs having a population less than 10,000 in counties of the second class having a population of more than 265,000 are authorized to fix, by ordinance, the salary of the mayor and council at not more than $750 for the mayor and $500 for each councilman. N. J. S. A. 40:88-3.1, 40:88-3.2. Plaintiff contended that since the ordinances in question had fixed salaries which were in excess of those amounts, they were invalid in the absence of a referendum approving them. N. J. S. A. 40:46—23, 40:46—26.

At the hearing on plaintiff’s motion for summary judgment, the then counsel for the municipality conceded, as its attorney only, that he knew of no legal authority to sustain the legality of the salaries voted by the mayor and council. When specifically questioned by the court as to what right they had to do so, he answered, “I know of none. In my brief I don’t contend they do.”

While the court expressed the opinion that the action of the governing body was illegal, rather than so find and thereafter direct those who had received the increased salary to return the money (some of them were no longer in office and none had been made parties), it entered judgment directing the current governing body to order the borough attorney to institute a suit to recover from those who had received them, all salary payments in excess of $750 for the mayor and $500 for each councilman. The present appeal is from that judgment.

In essence, defendants raise two points, that (1) the facts adduced do not support the relief granted, and (2) the action is barred by R. 4:69-6.

Defendants urge that mandamus was not available because plaintiff’s legal right was not clear. Hot so. We are here concerned with the legal right of the municipality for whose benefit plaintiff brought the present action in lieu of prerogative writs. The facts relative to its rights were not in dispute. The salary ordinances for the years 1967, 1968 and 1969 fixed the salary of the mayor and council at twice the sum authorized by the applicable statute. Payment of salaries in such amounts was unauthorized in the absence of approval by a referendum. It was conceded that no such referendum was held, and that salaries paid out to the mayor and members of the council during the three years in question had exceeded by $11,000 the amount allowed without a referendum. An action for the return of that amount was called for and we cannot say the trial court was in error in directing that the borough attorney, who was appointed and was being paid to represent the borough, should bring such an action for its benefit. Any problem of conflict of interest because of some overriding loyalty on his part to some or all of those who would be defendants in the case could be resolved by the substitution of other counsel, as in other cases.

The availability of other remedies did not preclude the court’s action. While plaintiff could have sought leave of the court to bring an individual action in the name of and for the benefit of the municipality, N. J. S. A. 2A:15-18, or could have sought to induce nine other taxpaying freeholders to join him in such a suit, N. J. S. A. 2A:49-1; Ippolito v. Mayor, etc., Hoboken, 60 N. J. Super. 477 (App. Div. 1960); Demoura v. Newark, 74 N. J. Super. 49 (App. Div. 1962), the court was not obligated to relegate plaintiff to expenditure of his own substance to recover monies due the borough. Further, while we have not considered it in arriving at our determination to affirm, we recognize merit in the suggestion that since the court, pursuant to N. J. S. A. 2A:15-18, was vested with authority to authorize the institution of such a suit in the name of the municipality by an individual resident and taxpayer, it could authorize the bringing of action in the borough’s name and for its benefit by the borough attorney.

We have reviewed plaintiff’s remaining contentions in connection with this point and find them to be without merit. The rights of third parties, i. e., those who have received salary overpayments but are no longer members of the governing body, will not be adversely affected, but they will have a full opportunity to be heard in the action to be brought. We are not concerned with the motives which impelled plaintiff to seek the return of the overpayments to the borough. Nor do we find authority for holding that since payment of the challenged salaries was not concealed by the recipients, but was accomplished after public hearing and passage of the annual salary ordinance, the borough was precluded from recovering the excess salaries paid.

Defendant’s second point, that R. 4:69—6 barred plaintiff’s action, is likewise without merit. Subsection (c) of R. 4:69-6 authorizes the court to enlarge the 45-day period where it is manifest that the interest of justice so requires. It is clear from the record that the trial judge exercised that authority to get to the merits of the matter. The nature of the controversy and the public interest involved afforded just cause for his doing so. Thornton v. Ridgewood, 17 N. J. 499 (1955); Schierstead v. Brigantine, 29 N. J. 220 (1959); Riddlestorffer v. Rahway, 82 N. J. Super. 36 (Law Div. 1963); Guernsey v. Allan, 63 N. J. Super. 270 (App. Div. 1960). Compare Haack v. Ranieri, 83 N. J. Super. 526, 538-540 (Law Div. 1964).

The judgment of the Law Division is accordingly affirmed.


text:
    IN RE 15TH ESSEX COUNTY GRAND JURY OF THE 1967 TERM.
    Superior Court of New Jersey Appellate Division
    Submitted September 29, 1970
    Decided October 19, 1970.

      Before Judges Kilkenny, Halpern and Lane.

      Messrs. Hellring, Lindeman & Landau, attorneys for appellant (Mr. Edwin H. Stern, on the brief).

      Mr. Joseph P. Lordi, attorney for Essex County Prosecutor (Mr. Robert L. Podvey, Assistant Prosecutor).

      Mr. Frederick B. Lacey, attorney for United States Attorney for the District of New Jersey (Mr. John W. Bissell, Assistant United States Attorney for the District of New Jersey).
   Per Curiam.

Hugh J. Addonizio, former mayor of Newark, appeals from an order and “final judgment” of the Law Division, entered on December 10, 1969, “without notice to appellant or an opportunity to be heard with regard to the applications.”

The order directed the Essex County Prosecutor “to make available to the United States Government all evidence, exhibits, transcripts and materials presented to the above-named Grand Jury.” The reference was to the “15th Essex County Grand Jury of the 1967 Term.” The applications for the “turn-over” of this material were jointly made by the Essex County Prosecutor and the United States Attorney for New Jersey.

Addonizio had not been made a party to the applications, although both the federal and Essex County grand juries were conducting concurrent, but separate investigations of the administration of public affairs in Newark, and Addonizio, as mayor, was one of the targets in those investigations.

The “turn-over” was effected, pursuant to the Law Division order. Apparently, no application was made to our courts for a stay. The record before us does not disclose the grant or denial of any motion for a stay. Addonizio did move before trial in the United States District Court to suppress as evidence all materials “turned over” to the United States Government pursuant to the order of December 10, 1969. Judge Barlow of the United States District Court denied that motion.

To what extent, if any, this material, now in federal custody, was used by the United States Attorney has not been made manifest before us. It is, though, a matter of public knowledge that Addonizio and others were indicted by the federal grand jury subsequent to the “turn-over.” His trial and that of some co-defendants resulted in a verdict of guilty. Addonizio was sentenced on September 22, 1970 by Judge Barlow to a prison term of ten years and ordered to pay a fine of $25,000. His convictions are being appealed.

As of now, the issue before us appears to be moot. The United States Attorney and the prosecutor properly note that by reason of the fait accompli, we can render only an “advisory opinion.” However, we shall consider the arguments presented.

Addonizio’s first point is that the order under review is a “final judgment” and appealable. The United States Attorney and the prosecutor maintain that the order is not a “final judgment” appealable to this court. They further aver that the proceeding initiated in this court by Addonizio is not an “appeal.”

The “turn-over” order made on December 10, 1969 by-Judge Giuliano was -final in nature. It was not a mere interlocutory step in some other proceeding in our court. It was as final as that in In re Addonizio, 53 N. J. 107 (1968), wherein the Supreme Court reversed a Law Division order directing the mayor to obey a subpoena requiring him to produce his personal records before the grand jury.

But even if it were not final, the importance of the issue would induce us to grant leave to appeal, nunc pro tunc, if that were necessary. We prefer not to rest our conclusion upon the technical claim of a lack of finality in the order under review.

So, too, we are not inclined to deny Addonizio the right to challenge the “turn-over” order on the theory that his proceeding before us is not an “appeal.” True, Addonizio was not a “party” to the proceeding before Judge Giuliano, at which the prosecutor and United States Attorney joined in applying for the turn-over of the evidence, exhibits, etc., before the Essex County grand jury to the federal officials for use before the federal grand jury in its concurrent investigation of Newark’s administration. It would have been procodurally more correct for Addonizio to have applied to Judge Giuliano for a stay of the “turn-over” order on the ground that he was legally aggrieved thereby and had not been afforded an opportunity to be hoard. Then, if his application had been denied by order of the assignment judge, a review of that order would be properly before the Appellate Division. But here again, we prefer to dispose of this matter on the merits.

In denying Addonizio’s pretrial motion to suppress the evidence turned over to the United States grand jury by the Essex County grand jury, Judge Barlow pointed out that the evidence “may never be offered at trial,” thus making the motion “premature.” Permission to renew the motion was granted if the challenged evidence was offered. Moreover, he ruled that “the admission of evidence obtained in violation of state law is not ordinarily precluded in a federal criminal prosecution, unless the violation of state law constituted, as well, a violation of federal law or the Constitution.” Citing United States v. Scolnick, 392 F. 2d 320 (3 Cir. 1968), cert. den. 392 U. S. 931, 88 S. Ct. 2283, 20 L. Ed. 2d 1389 (1968).

Judge Giuliano recognized that the joint application by the United States Attorney and the Essex County Prosecutor was “unprecedented.” The prosecutor stated that “the action is made necessary to prevent a duplication of effort and expense-, and to prevent possible conflicts which could deter and impede important investigation and, in the-end, perhaps frustrate the activities of both law enforcement groups.” The United States Attorney stressed the need for federal and state cooperation. Judge Giuliano granted the application and at the same time told the Essex County grand jury that “a Eederal Grand Jury will continue the investigation in other, but similar, areas which you have gone into. Your efforts have laid the ground work for that body to take over.”

Addonizio argues that the “turn-over” violates the policy of grand jury secrecy. R. 3:6-7 (formerly R. R. 3:3-7). But, in effect, it merely transferred the factor of secrecy from one grand jury to another. In State v. Clement, 40 N. J. 139, 142 (1963), our Supreme Court noted that “proceedings before a Grand Jury may be disclosed if justice so requires,” reiterating a similar pronouncement in State v. Moffa, 36 N. J. 219, 223 (1961). As the Chief Justice expressed it in State v. Clement, supra, “The rule [R. R. 3:3-7] thus continues a concept, without however defining it. Secrecy of course impedes the search for truth and hence must rest firmly upon some greater social need. That the secrecy of the grand jury has never been absolute is clear enough.” 40 N. J. at 142.

In Reichert v. Comm’r of Internal Revenue, 21& F. 2d 19 (7 Cir. 1954), a prosecution for failure to pay federal income taxes on money which witnesses before a county grand jury in Indiana had testified had been paid to the taxpayer, the disclosure of testimony before the county grand jury by the county prosecutor to the Federal Government was upheld, even in the absence of an application to the state court.

In Commonwealth v. Kirk, 340 Pa. 346, 17 A. 2d 195, 200 (Sup. Ct. 1941), it was stated:

A consideration of the best authorities on the subject [of grand jury secrecy] leads to the conclusion that the rule is for the protection of the Commonwealth, the grand jurors themselves and the witnesses, and is not concerned with “protecting” the accused, whose constitutional and statutory rights are not affected by it one way or the other.

Accordingly, we conclude that the joint application by the United States Attorney and the Prosecutor of Essex County was addressed to the sound discretion of and was properly granted by the assignment judge, thereby promoting enforcement of the law and the administration of justice.

The order under review is affirmed.


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

text:
    VIRGIL J. ZUCCHI, TRADING AS NEW JERSEY MARBLE & GRANITE WORKS, PLAINTIFF-APPELLANT, v. LAKEVIEW MEMORIAL PARK ASSOCIATION, A NEW JERSEY CORPORATION, MEMORIAL SALES COMPANY, INC., A NEW JERSEY CORPORATION, AND ARTHUR J. SILLS, ATTORNEY GENERAL OF NEW JERSEY, DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued September 28, 1970
    Decided October 20, 1970.

      Before Judges Sullivan, Collester and Labrecque.

      Mr. Howard Stern argued the cause for appellant (Mr. Richard H. Miller, on the brief; Messrs. Shavick, Stern, Schotz, Steiger & Croland, attorneys).

      Mr. W. Louis Bossle argued the cause for respondent Lakeview Memorial Park Association (Messrs. Kisselman, Devine, Deighan & Montano, attorneys).

      Mr. Clarence P. Reberkenny argued the cause for respondent Memorial Sales Company, Inc. (Messrs. Hyland, Davis & Reberkenny, attorneys).

      Mr. Kenneth M. Olex, Deputy Attorney General, argued the cause for respondent Arthur J. Sills (Mr. Stephen Skillman, Assistant Attorney General, of counsel; Mr. George F. Kugler, Jr., Attorney General of New Jersey, attorney).
   The opinion of the court was delivered by

Sullivan, P. J. A. D.

This appeal poses the question whether a sales agency holding the exclusive right to sell graves or plots in a cemetery may also engage in the business of selling grave markers in the same cemetery. Plaintiff, an entrepreneur in the business of selling grave markers, charges that lie is unable to compete with the cemetery’s sales agency in the particular cemetery on a basis of equality because of the preferential position inherent in the joint activity. For reasons hereinafter detailed, we conclude that the sale of grave markers by the same agency which sells graves and plots is an unlawful activity which, in the present instance, should not be permitted.

The controversy stems from the Supremo Court decision in Frank v. Clover Leaf Park Cem. Assn., 29 N. J. 193 (1959). There, in a suit brought by a person engaged in the business of selling and installing grave markers, it was held that a cemetery association may not engage in the business of selling grave markers. The rationale of the decision is that a cemetery association is a gtMsi-public, charitable trust which is granted numerous privileges and immunities to aid it in carrying out its non-profit function. The court stated at pp. 202-203:

An acute awareness of the g«asi-publie nature of this charitable trust as well as of its tax exemption and other privileges and immunities is necessary to a solution of the problem. Manifestly, in entering the marlcet for the sale of memorials to lot owners in com petition with private enterprise, these factors give the Association a decided competitive advantage. And, as has been said, the advantage is enhanced psychologically through the close contact with the family of the deceased before, at the time of, and after the burial. These factors of preferred economic position and ease of access to prospective customers in promoting sales, in our judgment, make necessary a strict construction of the statute and the charter emanating therefrom in appraising the claim of implied power to engage in the activity in competition with private business, [at 202-203, emphasis added]

The court concluded that the sale of grave markers had but a slight, indirect and remote relation to the object of the corporate charter and was not necessary or essential to the proper operation of the cemetery. In directing that the practice be discontinued, it concluded that the activity was not only ultra vires the statute and corporate charter, but contrary to the public interest and must be discontinued.

Defendant Lakeview Memorial Park Assoeiation, is a nonprofit corporation organized under Title 15 of the Revised Statutes and eoncededly subject to the mandate of Frank. It does not maintain its own sales force for the sale of graves and plots in Lakeview. Instead, it has designated Parquharson Sales, Inc., as its exclusive agency for that purpose. Parquharson Sales, Inc., is actually John G-. Parquharson, Sr., who has been in the business of selling cemetery lots for 30 years. Mr. Parquharson is also engaged in the sale of grave markers through defendant Memorial Sales Company, Inc. However, the activities and facilities of both corporations are so inter-related that, for all practical purposes, they are a joint operation and the alter ego of Mr. Parquharson. Prior to the decision in Frank, Mr. Parquharson had been selling both cemetery lots and memorial markers for Lakeview Memorial Park. As a. result of Frank the practice was discontinued.

Plaintiff contends that defendant cemetery association gives preferential treatment to Memorial Sales Company, Inc., to facilitate its sales of grave markers. The trial court found, and we agree, that the proofs do not sustain that contention. Plaintiff also contends that, aside from the alleged preferential treatment, Earquharson’s being the exclusive agent for the sale of graves and plots in Lakeview, and also engaging in the grave marker business therein, necessarily gives the grave marker activity an unfair advantage over others in the same business. Plaintiff argues that the sale of the grave or plot establishes a personal relationship with the family, with subsequent entree when the need for a grave marker arises. See Frank, supra at 203. Also, the sales agency would have access to confidential information as to plot owners, names, addresses, etc., not otherwise available.

The> Attorney General, who was joined in these proceedings because of the charitable trust involved, strongly argues that it is unlawful for the cemetery association or its agent, directly or indirectly, to engage in the commercial business of the sale of grave markers.

We conclude that the joint activity is contrary to the principle enunciated in Frank. It is true that defendant cemetery association is not engaged in the sale of grave markers and the proof indicates that it receives no return or profit from sales of markers made by Memorial Sales. The evil is inherent in permitting the exclusive agent for the sale of graves and plots in the cemetery to expand into the grave marker business in the same cemetery.

An essential part of a cemetery’s operation is the sale of its graves and plots to the public. By delegating this function to an exclusive sales agency, such agency becomes an integral part of the cemetery operation and is subject to the same restrictions and limitations as are imposed on the cemetery association. The sale of grave markers by the same agency falls into this category and, under Frank, is ultra vires the legal limits of cemetery operation as well as contrary to the public interest.

Argument is made that the nonjoinder of John Earquharson, Sr., and Earquharson Sales as parties-defendant herein is fatal to plaintiff’s suit since they are necessary parties to the litigation. We do not agree. The cemetery association is a partydefendant, as well as Memorial Sales Company, Mr. Earquharson’s corporate entity for the sale of grave markers.

The cemetery association is to be ordred to require its exclusive sales agency for the sale of its graves and plots to discontinue the sale of grave markers in Lakeview. Memorial Sales Company, Inc., is to be enjoined from the sale of grave markers in Lakeview so long as it is affiliated in any way with the cemetery association’s exclusive sales agency.

Beversed and remanded for further proceedings pursuant to this opinion.

      The cemetery does insist on installing all grave markers at a fixed charge. Frank permits this activity as necesary to the proper maintenance of the cemetery. The cost of a concrete base and perpetual care, as part of the installation charge, would not, without more, appear to be improper.


author: Kolovsky, J. A. D.

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. ROBERT E. JOHNS, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued October 5, 1970
    Decided October 22, 1970.

      Before Judges Conford, Kolovsky and Carton.

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

      Mr. Barnett E. Hoffman, Assistant Prosecutor, argued the cause for respondent (Mr. Edward J. Dolan, Middlesex County Prosecutor, attorney).
   The opinion of the court was delivered by

Kolovsky, J. A. D.

Prior to January 11, 1968 one convicted of incest could not be committed under the Sex Offender Act, N. J. S. A. 2A:164-3 et seq., because “the crime of incest [was] not included among the sex offenses specified in the statute.” State v. Bray, 67 N. J. Super. 340, 346 (App. Div. 1961). An amendment of N. J. S. A. 2A:164-3, effective January 11, 1968, added “incest” to the crimes to which the act applies.

The substantive question sought to be argued on this appeal is whether, in view of the prohibition against ex post facto legislation found in the Federal and State Constitutions, the 1968 amendment may constitutionally be applied to one who committed incest prior to January 11, 1968. Defendant was found guilty at the trial held in July 1968 of an indictment charging him with having had incestuous relations with his daughter between March and December 21, 1967.

The posed question was answered in the affirmative by the sentencing judge on September 9, 1968 when he committed defendant to the Diagnostic Unit, State Prison Farm in Rahway, under the Sex Offender Act, and again on January 31, 1969 when he denied defendant’s pro se motion to correct an allegedly illegal sentence.

No appeal was taken by defendant either from the’ original conviction and sentence or from the denial of the motion to correct the sentence. Such appeal would have been the appropriate vehicle to bring the question before us. The course which defendant has pursued • — ■ a petition for post-conviction relief filed October 14, 1969, seeking to relitigate the same issue, followed by this appeal from the dismissal of the petition — is not. See B. 3 :22-5.

Nevertheless, we are satisfied that the constitutional problem presented is of sufficient import to call for relaxation of the rules so that we may consider the question on its merits.

In ruling adversely to defendant the trial court relied on eases which held that commitment under the Sex Offender Act does not entail a heavier penalty on the offender. Those courts therefore rejected both the contention that the Sex Offender Act deprives the offender committed thereunder of equal protection of the laws, see State v. Wingler, 25 N. J. 161, 174-175 (1957), and the contention that it was a denial of due process to find one a sex offender on the basis of the Diagnostic Center report without affording him an adversary-type hearing on the merits of the report. See, e. g., State v. Blanford, 105 N. J. Super. 56, 60 (App. Div. 1969), remanded for further sentencing proceedings sub nom. State v. Horne, 56 N. J. 372 (1970).

However, the fact that a sentence under the Sex Offender Act does not constitute more severe or greater punishment is not dispositive in determining whether the 1968 amendment constitutes, if applied to defendant, ex post facto legislation.

In the leading case of Lindsey v. Washington, 301 U. S. 397, 57 S. Ct. 797, 799, 81 L. Ed. 1182 (1937), the court,

in holding the sentencing statute there involved to be ex post facto legislation, said:

The Constitution forbids the application of any new punitive measure to a crime already consummated, to the detriment or material disadvantage of the wrongdoer. :s * *
We need not inquire whether [the statutory change] is technically an increase in the punishment annexed to the crime, * * *. It is plainly to the substantial disadvantage of petitioners * * *. [301 U. S. at 40, 57 S. Ct. at 799.]

It is therefore not of controlling significance that a provision for commitment under the Sex Offender Act does not authorize more severe punishment than that provided in the Crimes Act section relating to incest, N. J. S. A. 2A:114-2. It does authorize different treatment of and consequences to a defendant.

As the court recently stated in State v. Horne, 56 N. J. 372 (1970):

Nor is there any question that, even if it be accepted as not more burdensome, a sentence under the Sex Offender Act differs in yarious respects from an ordinary sentence for the substantive offense. See State v. Blanford, supra, 105 N. J. Super. at 59-60; State v. Schreffler, 63 N. J. Super. 148, 152 (App. Div. 1960). [at 377]

Among those differences — see the itemization in State v. Blanford, supra, 105 N. J. Super, at 59-60 — are some of potentially substantial disadvantage to a prisoner. The Supreme Court, in State v. Horne, supra, held that those differences were of sufficient import to entitle a defendant who “duly challenge [s] the sufficiency or any material aspect of the Center’s report” to a full hearing, “to be confronted with the witnesses against him, with the right to cross-examine and with the right to offer evidence on his own behalf.” 56 N. J. at 375.

Such recognition of the substantial quality of those differences mandates, in our view, our holding that to subject a defendant to those differences in treatment by retroactive legislation runs counter to the ban on ex post facto laws.

Subsequent to the filing of the briefs in this matter, defendant filed two motions incorporating additional contentions, none of which however has any merit.

The commitment of defendant under the Sex Offender Act is vacated and the matter remanded to the trial court for imposition of sentence under N. J. S. A. 2A:114-2. Defendant will, of course, be entitled to .appropriate credits for the time he has been confined.


author: Carton, J. A. D.

text:
    CREAM-O-LAND DAIRY, A CORPORATION OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. MILK DRIVERS AND DAIRY EMPLOYEES LOCAL 680, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued September 28, 1970
    Decided October 22, 1970.

      Before Judges Conford, Kolovsky and Carton.

      Mr. Thomas L. Parsonnet argued the cause for appellant (Messrs. Parsonnet, Parsonnet & Duggan, attorneys).

      Mr. Ernest Gross argued the cause for respondent (Mr. Harold J. Sklarew, attorney).
   The opinion of the court was delivered by

Carton, J. A. D.

Defendant Milk Drivers and Dairy Employees Local 680 appeals from a judgment granting plaintiff Cream-O-Land Dairy an injunction restraining the union from picketing plaintiff’s customers. Defendant claims that the state court lacks jurisdiction over the matter since it involves a controversy subject to section 7 or 8 of the National Labor Relations Act (29 U. S. C. A. §§ 157, 158) and is therefore preempted to the jurisdiction of the National Labor Relations Board. We agree.

Dairy had an exclusive contract since 1953 with the Dairy Workers Association, Inc., a labor union, which, with the exception of certain specified classes, represented its employees. The latest contract, dated May 1, 1969, ran for a term of two years and according to Dairy contained wage and fringe benefits equal to or exceeding those in contracts of other dairies or negotiated by Local 680.

On July 8, 1970 representatives of Local 680 were observed picketing a Hills Supermarket, a company with which Dairy did a gross annual business of $600,000. The pickets were carrying signs and passing out handbills to people walking in the store. The picket signs read:

CREAM-O-LAND DAIRY pays wages and fringe benefits below the scale required.by union contracts

DON’T BUY CREAM-O-LAND DAIRY PRODUCTS

MILK.DRIVERS AND DAIRY EMPLOYEES LOCAL 680

On July 15 the Chancery Division, on the basis of affidavits, granted a temporary restraining order returnable July 20, 1970. The affidavit of Backhaus, one of Dairy’s employees, contained an assertion that one of the pickets, in response to his inquiry as to why he was picketing, stated that Cream-O-Land’s drivers reportedly worked six days a week, 14 to 16 hours a day, and were paid $180 per week with no fringe benefits. Backhaus averred that these allegations were false. He also asserted that the picket told him that Local 680 had been trying to organize Cream-O-Land for five years.

On the July 20 return date the court heard testimony similar to that contained in the supporting affidavits. Testimony was offered to the effect that while the picketing was going on, sales of Cream-O-Land products in the store substantially declined but that these sales returned to normal once the picketing was restrained.

Local 680 filed no answering affidavits and offered no witnesses but moved to dismiss on grounds of federal preemption among others. The court made the finding that the picketing with the legend on the placard was “essentially to coerce Plaintiff’s employees, or to act as a coercion upon the Plaintiff and its employees to ultimately enter into and negotiate a contract with the Defendant union.” The court also found that although the picketing was peaceful, it was for an improper or illegal purpose and if permitted to continue would constitute “an irreparable harm to the plaintiff, to Hills Supermarket, as well as to other customers.”

An order was entered enjoining Local 680 from picketing “until the further order of this court.” The court relied upon Ind. Dairy Workers, &c. v Milk Drivers, &c., Local No. 680, 30 N. J. 173 (1959). Despite the apparently interlocutory language of the order, the court later certified to this court its intention that this order constitute a final judgment.

After the institution of these proceedings defendant applied to the National Labor Relations Board for a ruling as to whether or not that board would assert jurisdiction over the issues in this case. On August 26, 1970 the Board issued an advisory opinion to the effect that it had statutory jurisdiction and would assert it in this case.

If it is arguable that the activity in dispute is permitted by section 7 or prohibited by section 8 of the National Labor Relations Act, the courts have no jurisdiction, the National Labor Relations Board having exclusive and preemptive jurisdiction. San Diego Bldg. Trades Council v. Garmon, 359 U. S. 236, 79 S. Ct. 773, 3 L. Ed. 2d 775 (1959). See also International Longshoremen’s Assn. v. Ariadne Shipping Co., 397 U. S. 195, 90 S. Ct. 872, 25 L. Ed. 2d 218 (1970). There are certain exceptions to the rule of preemption which are referred to later in this opinion, hut this case is not within any of them.

Section 7 of the act grants labor’s right to organize, to bargain collectively and to take concerted action in support thereof. Section 8 specifies and prohibits unfair labor practices. Section 8(b) specifies unfair labor practices by unions, including secondary-boycott picketing to force recognition or to organize. Section 8 (b) (4) permits peaceful publication of union grievances.

Dairy argued, and the court found, that defendant through picketing sought to force employees into defendant’s union and to pressure the employer to recognize and bargain with it. In effect, Dairy charges the Local with violation of section 8(b)(4)(C) or 8(b)(7) — charges cognizable by the National Labor Relations Board. Defendant Local’s contention that it had the right of peaceful publication of its grievances through picketing and the Dairy’s charge that these alleged grievances are unfounded in fact also involve a dispute cognizable by the National Labor Relations Board under section 8(b)(7)(C).

Whether, as defendant Local contends, it engaged in this picketing for the sole objective of truthfully advising the public that the employer was perpetuating substandard working conditions, whether the alleged substandard conditions in fact existed, or whether the picketing was, as found by the court, for the purpose of coercing plaintiff and its employees ultimately to enter into and negotiate a contract with Local 680, the matter, at least arguably, involved a labor dispute within the remedial jurisdiction of the National Labor Relations Board.

Garmon, supra, recognized exceptions to the preemption ' doctrine. Where “the regulated conduct touched interests so deeply routed in local feeling and responsibility” preemption would not be inferred nor would preemption be imposed where the activity regulated was a merely peripheral concern of the Labor Management Relations Act. 359 U. S. at 243-244, 79 S. Ct. at 779, 3 L. Ed. 2d at 782. Linn v. United Plant Guard Workers, 383 U. S. 53, 86 S. Ct. 657, 15 L. Ed. 2d 582 (1966), does not change that rule. Linn held that protection against certain defamatory attacks was available in state courts although arising out of a labor dispute.

Nothing shown by the record brings this case within any of the recognized exceptions. Plaintiff makes no allegation of physical violence or threat thereof. It refers to no local responsibility. It alleges no tortious conduct cognizable in the state courts within the Supreme Court’s interpretation. The peaceful picketing it seeks to enjoin cannot be considered of peripheral concern to the concept of federal regulation. Moreover, since the trial court found that the union’s picketing was of a peaceful character, the activity must be considered as arguably protected under section 7. Respondent’s reliance on Ind. Dairy Workers, &c. v. Milk Drivers, &c., Local No. 680, supra, does not aid its cause since the court there expressly noted that none of the parties before it had raised the issue of federal preemption, and it is obvious that the court was expressing no view on-that issue. 30 N. J. at 177.

The judgment awarding the injunction must therefore be reversed.

Local 680 argues that the union is entitled, upon reversal of the injunction on preemption grounds, to allowance of costs and counsel fees. That claim is grounded on the Anti-Injunction Act, N. J. S. A. 2A:15—53, which mandates that no temporary restraining order or interlocutory injunction shall be allowed in a labor dispute case brought pursuant to the statute except upon condition that plaintiff file with the court a bond or undertaking in favor of the persons enjoined, in an amount sufficient to secure them their court costs and counsel fees in the event the injunctive relief sought is subsequently denied by the court or the order granting same is later reversed by an appellate court. It is contended that the injunction was reversible not only on grounds of federal preemption but also for violation of proeedural requirements of the Anti-Injunction Act in several particulars.

Since we do not here reach the merits of the underlying labor controversy, we are not compelled to award costs or counsel fees. See U. S. Pipe & Foundry Co. v. United Steel Workers of America, 37 N. J. 343, 360-64 (1962). In the circumstances of this case, we conclude that costs and counsel fees should not be awarded.