author: Lane, J. S. C.

text:
    TOWNSHIP COMMITTEE OF THE TOWNSHIP OF HAZLET, MONMOUTH COUNTY, PLAINTIFF, AND THOMAS O. KELLY, PLAINTIFF-INTERVENOR, v. JOSEPH A. MORALES AND HAZLET TOWNSHIP SEWERAGE AUTHORITY, DEFENDANTS.
    Superior Court of New Jersey Law Division
    Decided March 24, 1972.

      Mr. Francis X. Journiclc, attorney for plaintiff Township Committee of the Township of Hazlet.

      Mr. Edwin A. Kolodziej, attorney for plaintiff-intervenor Thomas O. Kelly (Mr. Dennis M. Lamber, appearing of counsel).

      Messrs. Baling, Moore, O’Mara & Googan, attorneys for defendants (Mr. John W. O’Mara appearing of counsel).
   Lane, J. S. C.

This matter is before the court on a motion for summary judgment on behalf of Thomas O. Kelly, plaintiff-intervenor, a taxpayer and resident of the Township of Hazlet. The complaint in lieu of prerogative writ contests the validity of defendant Joseph A. Morales’ appointment as a member of the Hazlet Township Sewerage Authority.

On December 21, 1971 the Township Committee of Hazlet by a 3-2 vote appointed Morales to membership on the Sewerage Authority for the term of December 21, 1971 to January 31, 1975. At the time Morales was a participating member of the township committee and voted in the affirmative for his own appointment. In the November 1971 election he had been defeated for re-election to the township committee. A member of the Sewerage Authority receives a salary of $1500 a year.

On January 3, 1972 plaintiff township committee commenced this action in lieu of prerogative writ seeking an order declaring the invalidity of defendant Morales’ appointment; declaring a vacancy on the Sewerage Authority; restraining defendant Morales from performing any acts as a member of the Sewerage Authority; and restraining defendant Hazlet Township Sewerage Authority from taking any action for which a majority vote of the membership of the Sewerage Authority is necessary where the majority vote in favor would not exist but for the affirmative vote of defendant Morales.

An earlier motion for summary judgment was made by plaintiff township. That motion was denied on the ground, among others, of doubt of the standing of the township committee to institute the action. The earlier denial of the township’s motion is not res judicata so far as the motion brought on behalf of Kelly which is now before the court.

N. J. S. A. 40:14A-1 et seq. provides for municipal and county sewerage authorities. N. J. S. A. 40:14A-5 provides in part:

(c) * * * neither the holding of any office or employment in the government of any county or municipality or under any law of the State nor the owning of any property within the State shall be deemed a disqualification for membership in or employment by a sewerage authority, and members of the governing body of a local unit may be appointed by such governing body and may serve as members of a sewerage authority. * * *

While N. J. S. A. 40:14A-5(c) allows a member of a governing body to serve as a member of a sewerage authority (see N. J. S. A. 40:46-5, prohibiting generally such dual appointments, and O'Keefe v. Dunn, 89 N. J. Super. 383 (Law Div. 1965), aff’d o. b. 47 N. J. 210 (1966), holding that a statute allowing membership on a governing body and on a housing authority was an exception to the general provisions of N. J. S. A. 40:46-5), plaintiff argues that N. J. S. A. 40:14A— 5(c) does not permit a member of a governing body to vote for himself for such appointment.

A public officer has the duty of serving the public with undivided loyalty, uninfluenced in his official actions by any private interest or motive whatsoever. lie holds a position of public trust. He is under an inescapable obligation to serve the public with the highest fidelity, good faith and integrity. The law tolerates no mingling of self-interest; it demands exclusive loyalty. Driscoll v. Burlington-Bristol Bridge Co., 8 N. J. 433, 474-475 (1952), cert. den. Burlington County Bridge Commission v. Driscoll, 344 U. S. 838, 73 S. Ct. 25, 97 L. Ed. 652 (1952); Newton v. Demas, 107 N. J. Super. 346, 349 (App. Div. 1969), cert. den. 55 N. J. 313 (1970); Aldom v. Roseland, 42 N. J. Super. 495, 500-501 (App. Div. 1956).

A member of a municipal governing body may be disqualified from voting on a matter in which he is personally interested. See Griggs v. Princeton Borough, 33 N. J. 207, 219-220 (1960); Van Itallie v. Franklin Lakes, 28 N. J. 258, 267 (1958); McNamara v. Saddle River, 64 N. J. Super. 426, 429 (App. Div. 1960); Aldom v. Roseland, supra, 42 N. J. Super. at 50; Piggott v. Hopewell, 22 N. J. Super. 106, 110 (Law Div. 1952). See generally, Annotation, “Member of governmental board voting on measure involving his personal interest,” 133 A. L. R. 1257 (1941).

Generally, whether a particular interest is sufficient to disqualify is factual, depending upon the circumstances of the particular case. Van Itallie v. Franklin Lakes, supra, 28 N. J. at 268; Aldom v. Roseland, supra, 42 N. J. Super. at 503. The question is always whether the circumstances could reasonably be interpreted to show that they had the likely capacity to tempt the official to depart from his sworn public duty. Griggs v. Princeton Borough, supra, 33 N. J. at 219; Van Itallie v. Franklin Lakes, supra, 28 N. J. at 268. Actual proof of dishonesty need not be shown. LaRue v. East Brunswick, 68 N. J. Super. 435, 447 (App. Div. 1961); S. & L. Associates, Inc. v. Washington Tp., 61 N. J. Super. 312, 329 (App. Div. 1960), aff’d in part, rev’d in part 35 N. J. 224 (1961); Aldom v. Roseland, supra, 42 N. J. Super. at 503.

The interest which disqualifies is a personal or private one, not such an interest as the public officer has in common with all other citizens. Kramer v. Bd. of Adjust., Sea Girt, 45 N. J. 268, 282 (1965); Aldom v. Roseland, supra, 42 N. J. Super, at 507; Piggott v. Hopewell, supra, 22 N. J. Super. at 111.

In Aldom v. Roseland, supra, Justice, then Judge, Francis said:

The interest which disqualifies is not necessarily a direct pecuniary one, nor is the amount of such an interest of paramount importance. It may be indirect; it is such an interest as is covered by the moral rule: no man can serve two masters whose interests conflict. Basically the question is whether the officer, by reason of a personal interest in the matter, is placed in a situation of temptation to serve his own purposes to the prejudice of those for whom the law authorizes him to act as a public official. And in the determination of the issue, too much refinement should not be engaged in by the courts in an effort to uphold the municipal action on the ground that his interest is so little or so indirect. Such an approach gives recognition to the moral philosophy that next in importance to the duty of the officer to render a righteous judgment is that of doing it in such a manner as will beget no suspicion of the pureness and integrity of his action. * * * [42 N. J. Super. at 502]

However, a remote and speculative interest will not be held to disqualify. See Van Itallie v. Franklin Lakes, supra, 28 N. J. at 269.

In most eases in which it has been held that a public officer' had a disqualifying interest, a direct or indirect pecuniary or other benefit to the official himself or to a relative or employer was involved. See Griggs v. Princeton Borough, supra, 33 N. J. at 207 (University was principal stockholder of a corporation which would benefit by the designation of a particular area as “blighted”; determination by borough council was voided because two of the participating councilmen were professors of the University); Pyatt v. Mayor, etc., Dunellen, 9 N. J. 548 (1952) (zoning ordinances voided where councilman, voting for enactment were employees of a corporation substantially benefited); S. & L. Associates, Inc. v. Washington Tp., supra, 61 N. J. Super, at 312 (zoning amendment enhancing value of property owned by certain participating members of the governing body invalidated); Aldom v. Roseland, supra, 42 N. J. Super. at 503 (zoning ordinance voided where employer of councilman who voted for enactment would be benefited); Hochberg v. Freehold, 40 N. J. Super. 276, 283 (App. Div.), certif. den. 22 N. J. 223 (1956) (zoning amendment permitting enlargement of a horse trank at which a participating councilman operated a horsemen’s kitchen voided). But see Van Itallie v. Franklin Lakes, supra, 28 N. J. at 258 (zoning amendment upheld although participating councilman’s brother held a “lower echelon” position in a benefited corporation); Wilson v. Long Branch, 27 N. J. 360, cert. den. 358 U. S. 873, 79 S. Ct. 113, 3 L. Ed. 2d 104 (1958) (resolution by governing body-designating area as blighted upheld although two members-of planning board were officers in an institution which held mortgages on property within the area and a third member was a health official and lived 300 feet from the area).

In dealing with the issue of disqualifying self-interest, the courts frequently have made a distinction between quasi-judicial action and legislative action. See Pyatt v. Mayor, etc., of Dunellen, supra, 9 N. J. at 554, 555; Bd. of Ed. of West Orange v. International Union Eng., 109 N. J. Super. 116, 120 (App. Div. 1970) ; Aldom v. Roseland, supra, 42 N. J. Super. at 508; Piggott v. Hopewell, supra, 22 N. J. Super. at 110-111. The implication is that if the municipal action-is legislative in nature, it may not be interfered with except upon a showing that it is tainted with fraud, or palpably not in the service of the public interest, or otherwise a clear perversion of power. If the municipal action is quasi-judicial, it may be voided upon a showing of self-interest.

There may be some question as to whether the appointment of a member to the sewerage authority was quasi-judicial. However, even if such action was legislative, there is no reason not to void the action if disqualifying self-interest on the part of a participating member is shown. Certainly participation on a public matter by a municipal official with a direct self-interest would be a perversion of power and palpably not in the public interest.

In Grimes v. Miller, 113 N. J. L. 553 (Sup. Ct. 1934), plaintiff challenged an appointment of the mayor of Clifton to the Passaic Valley Water Commission. A resolution providing for such appointment had been offered to the city council. Action thereon resulted in a tie vote. The resolution was thereafter sent to the mayor for his approval or disapproval. As a result of his inaction the resolution had the effect as if it had been passed by the city council. The court characterized the mayor’s failure to act as equal to an affirmative vote by him appointing himself to office. The court held that the action by the mayor violated the provisions of L. 1917, c. 152 (now N. J. S. A. 40:46-5). The court further found that the mayor was disqualified from participation in his own election because of self-interest. Justice Perskie said :

Moreover, it is elementary, fundamental and grounded in sound public policy that personal interest, such as here, creates the disqualification. In the case of Kuberski v. Haussermann, 113 N. J. L. 162, 168; (Stevens (Kuberski) v. Haussermann, 172 Atl. Rep. 738, 741), Mr. Justice Heher, speaking for this court, said:
‘His personal interest created the disqualification. Generally, public policy forbids the participation of a member of a municipal governing body in any matter before it which directly or immediately affects him individually. Considerations of public policy require the acceptance of a resignation to make it effective. This requirement is designed to safeguard the public interest, and it follows, as a necessary consequence, that the officer tendering his resignation cannot participate in the proceedings or action taken thereon. In the clash of interests — those of the public and the officer who seeks to resign his post — the action to be taken must be determined by a disinterested body.’

In 46 C. J. 940, § 43(10), tit. "Officers,” it is stated:

‘It is contrary to the policy of the law for an officer to use his official appointing power to place himself in office, so that, even in the absence of a statutory inhibition, all officers who have the appointing power are disqualified for appointment to the offices to which they may appoint; nor can an appointing board appoint one of its members to an office, even though his vote is not essential to a majority in favor of his appointment, and although he was not present when the appointment was made, and notwithstanding his term in the appointing body was about to expire; nor can the result be accomplished indirectly by his resignation with the intention that his successor shall cast his vote for him. A statute declaratory of this rule of the common law will be construed liberally so as to give as broad a scope to the remedy provided by it as the language used will justify. Thus remaining in office by the sufferance of the appointing board will not cure such a disability.’
‘It is contrary to the public policy to permit an officer having the power to appoint to office to exercise that power in his own interest by appointing himself.’ Mechem’s Public Offices and Officers (edition 1890), § 112.
The mayor could not break the tie vote by actually and physically casting a vote in favor of the resolution of his appointment. It, therefore, seems clear to us that he sought to avoid or overcome the objection of a direct vote by taking no action. We fail to see any difference between his casting an affirmative vote and his refraining from voting. The latter, by statute, is the equivalent of the former. Iu either event the result is the same; it is wrong and contrary to law. [113 N. J. L. at 558-560]

Defendants argue that Grimes, supra, has been distinguished by O'Keefe v. Dunn, supra, 89 N. J. Super. at 383, and that O'Keefe should apply. In that case plaintiff brought an action in lieu of prerogative writs contesting the right of the Mayor of Elizabeth to veto plaintiff’s appointment to the local housing authority. Defendants counterclaimed, challenging plaintiff’s eligibility for appointment to the housing authority since he was as well a member of the city council. Plaintiff was appointed by resolution by the city council, of which plaintiff was a participating member, by a vote of 8 to O. Defendant’s argument was that N. J. S. A. 40 :46-5 prohibited plaintiff from serving as a member of the housing authority at the same time he was. a member of the governing body. That statute prohibits any member of a governing body from being eligible for appointment to any office required to be filled by the governing body of which he is a member unless the office is required by law to be filled by a member of the governing body. The court interpreted the Housing Authority Act (N. J. S. A. 55 :14A-6) as providing for such dual appointment. It held that the provisions of N. J. S. A. 55:14A-6 created an exception to N. J. S. A. 40 :46-5 and that plaintiff was not prohibited from being appointed to the housing authority.

Defendants argue further that Grimes v. Miller, supra, 113 N. J. L. at 553, is “in large measure” founded on L. 1917, c. 152 (now N. J. S. A. 40:46-5). They then argue that the rationale in O’Keefe v. Dunn, supra, 89 N. J. Super. at 383, finding N. J. S. A. 55:14A-6 an exception to N. J. S. A. 40:46-5, should be applied; and if N. J. S. A. 40:46-5 is inapplicable, Grimes, supra, will be inapplicable.

Their argument fails because in Grimes, supra, while the court did mention a violation of L. 1917, c. 152, it is clear that the primary reason for the court’s holding was the finding of a disqualifying self-interest arising from the mayor’s effective self-appointment to office, whereas, the primary issue in O’Keefe, supra, was plaintiff’s eligibility as a member of the governing body to hold the particular position appointed by that governing body.

Grimes, supra, is clearly applicable to the present case. The fact that N. J. S. A.40:14A-5 allows a member of the governing body to be appointed by that governing body as a member of the sewerage authority does not validate such an appointment where the interested member voted for himself, such vote being essential to the appointment. Being in a position to appoint one’s self to a public office or position is clearly of that class of self-interest which disqualifies. A municipal official in such a situation is not likely to act purely out of undivided loyalty to fhe public.

Defendant further argues that the issue of disqualifying self-interest raises genuine issues of material fact.

While generally whether a particular interest disqualifies is factual depending on the circumstances of the ease, under the test of whether the circumstances could reasonably be interpreted to show likely capacity to tempt, Van Itallie v. Franklin Lakes, supra, 28 N. J. at 268, there can be no factual dispute in this case. Defendant’s vote directly benefited his own interests. In effect he appointed himself. His conduct per se disqualifies his vote and invalidates his appointment. Grimes v. Miller, supra, 113 N. J. L. at 553. Cf. Driscoll v. Burlington-Bristol Bridge Co., supra, 8 N. J. at 474.

It might perhaps be argued that the appointment to the Sewerage Authority pays only $1500 a year and requires a great deal of thankless work and that these circumstances certainly could not reasonably show a likely capacity to tempt defendant from his sworn duty. As a matter of public policy and under Grimes, supra, no public official should be allowed to vote on his own appointment to a public office or position, regardless of the nature of that job. This holding may cause procedural problems within a local government, for example, lack of quorum because of a member’s disqualification. Such problems, however, are inconsequential compared to the public policy of having governing officials act with undivided loyalty for their constituents.

There is no genuine issue of material fact. Plaintiff is entitled to summary judgment declaring that the appointment of Joseph A. Morales to the Hazlet Township Sewerage Authority is void and that a vacancy exists therefore on the Sewerage Authority. The other relief sought in the complaint is superfluous.


source: Caselaw Access Project

author: Botter, J. S. C.

license: Public Domain

text:
    KENNETH ROBINSON, ETC., ET AL, PLAINTIFFS, v. WILLIAM T. CAHILL, ETC., ET AL, DEFENDANTS.
    Superior Court of New Jersey Law Division
    Decided March 30, 1972.

      Mr. Harold J. Ruvoldt, Jr., for plaintiffs (Messrs. Ruvoldt and Ruvoldt, attorneys).

      Mr. Stephen Q. Weiss, special counsel, for defendants (Mr. George F. Kugler, Jr., Attorney General of New Jersey, attorney) .
   Botter, J. S. C.

Following the filing of my opinion in this case on January 19, 1972, and reported in 118 N. J. Super. 223, counsel for defendants asked leave to be heard on the form of judgment to be entered and specifically moved (by letter of February 2, 1972, and orally on February 4, 1972) to postpone certain operative dates fixed by the court in that opinion, namely, the January 1, 1973 date and the January 1, 1974 date. The date suggested by the Attorney General for legislative action was two years from the conclusion of an appeal to the New Jersey Supreme Court, or, in any case, not earlier than January 1, 1974. In my written opinion I had provided that all operations under existing school laws and tax laws shall continue. I further provided:

To allow time for legislative action, such operations shall not be enjoined prior to January 1, 1974, except that if a nondiscriminatory system of taxation is not enacted by January 1, 1973, then from and after that date no state monies shall be distributed to any school districts pursuant to the ‘minimum support aid’ provisions and the save harmless provisions of the Bateman Act (L. 1970, c. 234) which have been identified previously in this opinion. All funds that are thereby set free shall be distributed by appropriate state officials in a manner that will effectuate as far as possible the principles expressed herein; more specifically, these funds shall be applied to raise guaranteed valuations to the highest level that a proportionate distribution of funds will permit, utilizing the remaining provisions of the Bateman Act. [118 N. J. Super. at 280-281]

On the motion to settle the form of judgment I denied the motion of the Attorney General for a change in these dates. However, in the judgment entered I added to the portion of the opinion quoted above the following:

Provided, however, that no such distribution of minimum aid and save harmless funds shall be made without further order of this court, and, in any event, the Commissioner of the State Department of Education, State of New Jersey, on or before November 15, 1972, shall formulate and submit to this court for approval a plan for the effectuation of this provision prior to putting it into effect; and provided, further, that the State Board of Education and/or the Commissioner of the Department of Education, State of Now Jersey, may propose an alternate plan or plans for the use or distribution of said minimum support aid and save harmless funds to effectuate the principles expressed in the written opinion of this court in the event this injunction shall become operative, said plan or plans to be submitted on or before November 15, 1972.

At oral argument the Attorney General contended that the January 1, 1973 date for the possible cut-off of minimum aid to certain school districts presented practical difficulties. He did not contend that any school district would be legally unable to obtain funds to replace the minimum aid loss that may occur. I denied the motion, with leave to the Attorney General to file a brief or letter memorandum specifically indicating whether it was his position that the statutory scheme would make it legally impossible for some school districts to obtain sufficient funds through usual budget appropriations and procedures to make up for the loss, if any, of minimum aid revenues from the State.

By letter of February 17, 1972 I again requested that the Attorney General advise me of his position on this point. I received a reply on or about March 2, and thereupon advised counsel that I intended to write a supplemental opinion on the subject and requested plaintiffs’ attorney Ruvoldt to expedite his reply. He presented his position by letter of March 20.

I interpret the Attorney General’s position to be that the withholding of certain state aid would leave a municipality with inadequate revenues raised by normal tax procedures between January 1 and June 30, 1973, and that this deficit would not be made up by taxes collected until the latter half of 1973. Nevertheless, any municipality whose expenses for the first half of any calendar year exceed tax revenues received during that period may borrow the additional money needed in anticipation of taxes to be received in the second half of the calendar year. This problem, when it exists, is not unique. It may occur because of increases in municipal and county expenses, as well as other reasons, such as the loss of anticipated federal aid or unusual reductions in ratables or in tax collections for a given period.

Under Title 40A, which includes the Local Budget Law (Chapter 4), the fiscal year is. defined as “the calendar year beginning on January 1 and ending on December 31.” N. J. S. A. 40A:1-1. Municipalities adopt budgets for a calendar year and these budgets are transmitted to the county board of taxation no later than March 31 of each year. N. J. S. A. 40A:4-11.

N. J. S. A. 40A:4-12 provides as follows:

The amount to be raised by taxation, as stated in the county budget, shall be the amount to be raised by taxation for county purposes. The amount to be raised by taxation, as stated in the municipal budget, shall be the amount to be raised by taxation for municipal purposes and for school purposes where school district costs are required to be included in the municipal budget. These taxes shall be assessed, levied and collected within the respective taxing districts in the manner prescribed by law.

N. J. S. A. 40A:4-13 provides as follows:

The amount to be raised by taxes for school purposes, required to be certified to the governing body of a municipality for inclusion in its budget, shall be set forth in a separate section of the budget upon adoption and shall be added to the amount to be raised by taxes for school purposes, if any, which were included in the approved bud-, get upon the final adoption of the budget, or it may be omitted from the budget as approved and may he added to the budget, by resolution, on final adoption without public advertisement.

N. J. S. A. 40A:4-14 provides as follows:

In making the certifications of the budget for transmission to the county board, the amount to be raised by taxes for school purposes by a municipality shall be separately stated and
a. In municipalities in which the amount to be raised by taxes for school purposes is required to be certified to the governing body for inclusion in its budget, there shall be deducted from the ‘municipal tax levy’
1. The amount appropriated for debt service after first deducting therefrom the amount of the State school building aid, if any, and
2. the amount of any emergency appropriation for school purposes certified to the municipality and approved by the governing body thereof;
3. the amount appropriated for school capital improvements for land, buildings and equipment.
b. In all other municipalities, there shall be deducted from the municipal tax levy any appropriations for school purposes required.
Said items shall be added by the county board to the amounts to be raised by taxation for school purposes.

■ Following receipt of the municipal budgets, the county board of taxation, on or before April 10, completes a table of aggregates which includes, among other items, total ratables, the amount of county, municipal and district school taxes, and the tax rate for local taxing purposes. N. J. S. A. 54:4-52.

N. J. S. A. 18A:36-1 provides:

The school year for all schools in the public school system shall begin on July 1 and end on June 30.

Under N. J. S. A. 18A:22—14 the board of school estimate in a Type I school district must fix the school budget no later than February 15 of each year for the ensuing school year. That budget includes current expenses, anticipated revenues, the amount available from a surplus account and the amount of state aid anticipated. N. J. S. A. 18A:22-8. The board of school estimate determines the amount of money to be appropriated for public schools “for the ensuing school year, exclusive of the amount which shall have been apportioned to it by the (state) commissioner * * N. J. S. A. 18A:22-14. In a Type II school district, without a board of estimate, a school budget is adopted by the board of education no later than February 1. N. J. S. A. 18A:22-32. By submission of the budget to the electorate the voters determine the amounts to be raised “by special district tax for said purposes” and this sum, together with interest and debt redemption charges, is certified to the county board of taxation on or before April 1, and such amounts “shall be included in the taxes assessed, levied and collected in the municipality or municipalities comprising the district for such purposes.” N. J. S. A. 18A:22-33.

The written opinion of the court in this case, which received widespread notice throughout the State, was handed down January 19, 1972. I assume, however, that school budgets adopted and submitted by April 1, 1972 did not anticipate the possibility of some districts losing minimum state aid or “save harmless” aid. Nevertheless, the amounts to be raised by local taxes in the 1973 calendar year for school purposes will be known on or about January 1, 1973. By then we will know whether the Legislature has acted or not. Certain districts will then know if they will not receive minimum aid or “save harmless” aid that they had anticipated receiving for the period January 1, 1973 to June 30, 1973.

In both Type I and Type II school districts the amounts certified to the county board of taxation to be raised by local taxes for school purposes excludes anticipated state aid. Accordingly, if state aid is withheld from some districts, the amount of revenues to be raised by local taxes during the first half of 1973 will be insufficient in those districts to pay all school costs in budgets adopted early this year unless the amounts certified to the county board of taxation are increased. Counsel for the parties agree that in a Type I school district an additional appropriation of funds can be voted by resolution of the board of education in case of an emergency arising since adoption of the budget. N. J. S. A. 18A:22-21(3). When certified by the board of school estimate, funds must be appropriated by the municipal governing body. N. J. S. A. 18A:22-22 and 23. See Newark Teachers Ass’n v. Board of Education, Newark, 108 N. J. Super. 34, 46-48 (Law Div. 1969), affd 57 N. J. 100 (1970). Actually, what is involved is not an increase in the total budget for school purposes, but rather the need to increase the amount certified to the county board of taxation to be raised by local taxes. The same applies to a Type II district. There, although the total budget for 1972-73 has been voted upon and approved by the electorate, it is fair to construe N. J. S. A. 18A:22-33 to say that the public has voted primarily to determine the amount of money to be raised by local taxes. In a Type II district, under N. J. S. A. 18A:22-40 and 41, to raise “additional sums of money, over and above the amount fixed and determined in the last annual school budget, by special district taxes,” the board of education must determine the amount needed and that amount must be submitted to the voters at a special school election. If approved, a local board of education is authorized to borrow money for these purposes and to issue promissory notes maturing not later than December 31 of the year in which taxes are to be raised for the additional sums required. N. J. S. A. 18A:22-42. This procedure must be completed before April 1 so that the additional amounts certified to the board of taxation may be raised by taxes in that year. N. J. S. A. 18A:22-43.

Municipal taxes are payable on February 1, May 1, August 1 and November 1. N. J. S 8. A. 54:4-66(a). The first two installments of taxes are each one-fourth of the total tax levied against the same property in the preceding year, and the last two installments constitute the full tax for the current year minus the first two installments. N. J. S. A. 54:4-66(c). A municipality must pay local school taxes when due and must borrow sufficient money, if necessary, to pay such taxes. N. J. S. A. 54:4—76. N. J. S. A. 40A:4-64 authorizes a municipality to borrow money and issue notes in anticipation of the collection of taxes for that year. See also N. J. S. A. 40A:4-46 et seq., dealing with emergency appropriations and borrowing.

Although the total school budgets, for July 1, 1972 to June 30, 1973 have been approved by public bodies and by the electorate (in Type II districts), I agree with the contention of the iVttorney General that additional local revenues required because of a loss of state aid would have to bo made up by added appropriations under the procedures mentioned above. This procedure would allow a board of school estimate where one exists, and the public (in a Type II district), to reconsider the total budget in the light of reduced state aid. The amount of minimum aid that may be lost in some districts for the period January 1 to June 30, 1973 is approximately $54 per pupil. Some districts may be able to raise the additional funds without borrowing. In some cases expenditures may be deferred administratively to a later time in the year when additional tax money comes in; and an increase in ratables in some wealthy suburban areas may produce additional revenues even in the first half of 'the tax year.

In any case, the Attorney General apparently concedes that it will not be legally impossible for a school district to obtain sufficient funds when needed to operate schools following January 1, 1973 even if state minimum aid and save harmless aid is withdrawn from certain districts. Reviewing the budget by a .board of school estimate, holding a special election in a Type II district, and borrowing money, where necessary, may be unwanted and inconvenient procedures. However undesirable this may be it need not come to pass if the Legislature acts in time. Moreover, the inconvenience and expense is small compared to the unfairness of giving substantial sums of school aid to wealthy districts with relatively low taxes while poorer districts in the State have inadequate school funds and high taxes. Accordingly, my previous decision, rendered orally, denying the Attorney General’s motion for a change in dates is ratified.

Another point raised by the Attorney General on the motion to settle the form of judgment is the need to specify the specific provision of our State Constitution in which equal protection rights are afforded. In Robinson v. Cahill, 118 N. J. Super. 223, 270-271 (Law Div. 1972) Washington National Ins. Co. v. Board of Review, 1 N. J. 545, 553-554 (1949), was cited for the proposition that the right to equal protection resides in Art. I, par. 1 of our State Constitution. This view would appear to have been cited with approval in Bailey v. Engelman, 56 N. J. 54, 55 (1970). While the phrase “equal protection of the laws” is not used in the New Jersey Constitution, concepts of equality comparable to the rights of equal protection under the Eourteenth Amendment are derived from a number of provisions of our State Constitution. In General Public Loan Corp. v. Director, Div. of Taxation, 13 N. J. 393, 401 (1953), reference is made to Art. I, par. 1 and Art. IV, § 7, pars. 7, 8 and 9, as the “group of constitutional provisions * * * adverted to as the ‘equal protection’ clauses.” See also Robson v. Rodriquez, 26 N. J. 517, 526 (1958), where the court said that the “test of whether a law constitutes special legislation is essentially the same as that which determines whether it affords equal protection of the laws.” See also Alfred Vail Mutual Ass’n v. Borough of Shrewsbury, 58 N. J. 40, 52 (3971), where the court, in dealing with the reasonableness of classifications for legislative purposes, emphasized the requirement that the Legislature act “by general laws” contained in the concluding paragraph of Art. IV, § 7, par. 9.

Although my January 19 opinion dealt with equal protection rights, the concept that legislation must not be arbitrary and cannot contain unreasonable classifications, unnecessary or unrelated to appropriate legislative purposes, may also be expressed in terms of due process rights. See Adler's Quality Bakery, Inc. v. Gaseteria, Inc., 32 N. J. 55, 70 (1960) ; Reingold v. Harper, 6 N. J. 182, 190-194 (1951).

My purpose here is simply to indicate that equal protection rights and the requirement for reasonable classifications germane to a legislative purpose are rights that are derived not only from Art. 1, par. 1, but are common to other provisions of our State Constitution. It may be said that these rights find expression in our State Constitution so pervasive that they constitute the most fundamental and essential guaranty of that Constitution. This means that the Legislature cannot enact a system of education or taxation that prefers one individual or group of individuals over another without a reasonable basis for a distinction between them which is related to the purposes to be served. The right of each citizen of this State to a quality education cannot be inhibited by a legislative scheme that prefers some pupils over others and some taxpayers over others.

With these additional observations, the judgment entered by me on February 4, 1972 shall stand.


author: Pee Curiam.

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. DONALD CREVINA, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Submitted March 27, 1972
    Decided April 6, 1972.
    Before Judges Collester, Mintz and Lynch.

      Messrs. LaEuca & Ivler, attorneys for appellant {Mr. Harvey I. Marcus, of counsel and on the brief and appendix).

      Mr. Joseph D. J. Gourley, Passaic County Prosecutor, attorney for respondent {Mr. John P. Goceljak, Assistant Prosecutor, of counsel).
   Pee Curiam.

Defendant was tried to a jury and found guilty of receiving stolen property in violation of N. J. S. A. 2A:139-1. He raises two grounds of appeal (1) error in denying his pretrial motion to suppress evidence, and (2) error in admitting testimony by police at the trial concerning the actions of defendant’s wife.

The order denying defendant’s motion to suppress evidence is affirmed for the reasons stated in the opinion of Judge Joelson in the Passaic County Court, 110 N. J. Super. 571 (Law Div. 1970).

There was no error in the admission of testimony by police concerning their observation of the actions by defendant’s wife. The testimony did not violate Evidence Rule 28 which bars disclosure of communications made in confidence between a husband and wife.

Affirmed.


author: Per Curiam.

text:
    CAMPBELL FOUNDRY COMPANY, APPELLANT, v. RICHARD J. SULLIVAN, COMMISSIONER, DEPARTMENT OF ENVIRONMENTAL PROTECTION OF THE STATE OF NEW JERSEY, RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued March 20, 1972
    Decided April 21, 1972.

      Before Judges Coneord, Matthews and Pritz.

      Mr. Theodore W. Geiser argued the cause for appellant {Messrs. Hughes, McElroy, Connell, Foley & Geiser, attorneys; Mr. Mark L. Fleder, on the brief).

      Mr. Lawrence E. Stanley, Deputy Attorneys General, argued the cause for respondent {Mr. George F. Kugler, Jr., Attorney General, attorney; Mr. Stephen Shillman, Assistant Attorney General, of counsel).
   Per Curiam.

On October 4, 1967 Campbell Foundry Company (Campbell) applied to the Department of Health (now Department of Environmental Protection) (Department) for a permit to construct and install certain air pollution control devices. Such proposed installation was responsive to an order of the Department dated April 14, 1967 requiring Campbell to abate a violation of the Air Pollution Control Code. The permit was issued on November 20, 1967 and Campbell thereafter installed equipment. On May 28, 1969 Campbell applied to the Department for a certificate to operate the equipment permanently. Permission was denied by order of the Commissioner of the Department dated May 6, 1971. Campbell here appeals that order.

The order of the Commissioner was based on six paragraphs of “findings of fact” which were stipulated to by the Department and Campbell. No hearing was conducted.

While we agree with the Commissioner’s contention that' even though the efficiency of the equipment installed surpasses the minimum requirements as to air contaminant emitted it must also meet the requirement that it incorporate advances in the art, N. J. S. A. 26 :2C-9.2(c), we find ourselves unable to review his determination and conclusional findings of fact because of the complete lack of an evidentiary record. Accordingly we reverse the order appealed and remand the proceedings to the Department for a complete hearing-

We reject appellant’s argument that merely because its apparatus does not exceed maximum allowable emissions specified by the. Code it therefore not need incorporate “advances in the art,” as specifically also required by the statute. N. J. S. A. 26:2C-9.2(c). We think it must, reading the statute as a whole. However, the requirement by the Department that the “advances to be satisfied” must be “the latest” is overly broad. The Legislature should be taken to have intended such advances in the art as have acquired some degree of current use and as are not unreasonably costly in the light of the nature and utility of the industrial operation affected as well as the harm which failure to use them would visit upon the environment. While affirmative findings inferentially approaching such criteria were made by the Commissioner, there must be supporting evidence, here absent, to support the findings.

The respondent’s brief relies on the asserted fact that the performance by appellant’s equipment does not meet Table 2 of the so-called Wortreich Guide, mentioned in Shahmoon Industries, Inc., v. Dept. of Health, N. J., 93 N. J. Super. 272, 279 (App. Div. 1966), certif. den. 49 N. J. 358 (1967). The record does not show that nor do the findings so state. Appellant asserts its equipment is not covered by any of the tables contained therein. Clarifying proofs in that regard should be adduced at the hearing on the 'remand, and the reliability of the Guide reestablished, if respondent continues to rely on it in this case, as appellant was not a party to the Shahmoon case.

Finally, we reject Campbell’s argument advanced here that the Commissioner should be estopped from denying it an operating certifícate on the theory that appellant relied upon the approval of the construction permit in 1967 in proceeding with the installation in question. We need only point to the fact that it was represented by Campbell to the Department that the installation to be made under the 1967 permit would limit emission to an estimated 30 pounds per hour. The actual emission figure attained was just double that.

Reversed and remanded. We do not retain jurisdiction.


text:
    MARY ANN DePOLO, PLAINTIFF-RESPONDENT, v. SILVYA CAPLAN AND ALEXANDER CAPLAN, INC., A CORPORATION OF THE STATE OF NEW JERSEY, DEFENDANTS-APPELLANTS.
    Superior Court of New Jersey Appellate Division
    Submitted February 22, 1972
    Decided April 18, 1972.
    Before Judges Collester, Mintz and Lynch.

      Messrs. Evans, Hand, Allahough & Amoresano, attorneys for appellants (Mr. Brian J. McGrievy, of counsel).

      Mr. Louis T. Gallo, attorney for respondent.
   Per Curiam.

This is an appeal from a jury verdict in favor of plaintiff for personal injuries sustained in a motor vehicle accident.

The accident occurred at 2:45 p.m. on July 30, 1966 at the intersection of Park Street and Claremont Avenue in Montclair. The intersection is controlled by automatic three-color traffic lights. Plaintiff was driving her automobile in a northerly direction on Park Street. As she entered the intersection of Claremont Avenue she collided with the left side of a motor vehicle operated by Thomas Qualy which was crossing the intersection and proceeding westerly on Claremont Avenue. Immediately thereafter plaintiff’s automobile was struck by a car driven by the defendant, Silvya Caplan, which was crossing the intersection in an easterly direction on Claremont Avenue. Qualy, Mrs. Qualy and the defendant testified that the traffic light was green when they reached the intersection and that plaintiff went through a red light. Plaintiff testified that the traffic light was green for her as she entered the intersection but changed to amber when she reached the middle of the intersection and struck the Qualy car.

Defendant raises seven points as grounds for a reversal. We find all of them to be without merit except one. The trial judge charged the jury, in pertinent part, as follows:

In this case, in support of the charge of negligence made, it is asserted that the defendant violated a provision or provisions of the traffic act. The provisions that I’m about to read to you are known as revised statutes, they were passed by the legislature to regulate the conduct of drivers on the highways. There was testimony that the intersection in question was a controlled intersection, namely, that it had traffic signals on it controlling it. That the plaintiff was traveling in a northerly direction on the highway known as Park Avenue and that the defendant was traveling on Claremont Avenue, that would place the defendant — that would place the plaintiff, rather, to the right of the defendant. 39:4-90 says, that is the statute, “The driver of a vehicle approaching an intersection shall yield the right of way to a vehicle which has entered the intersection.”
You will bear in mind the testimony was that the plaintiff and another car had both entered the intersection, they had a collision, and that the defendant in a varied estimate of time from five seconds to one minute then entered the intersection and struck the plaintiff’s car.

Defendant objected to the reference to N. J. S. A. 39:4-90, the right-of-way statute,' on the ground that it was not applicable to the case since traffic at the intersection was controlled by the traffic lights. However, the court did not recharge the jury on the subject.

We hold that it was prejudicially erroneous on the part of the trial judge to refer to N. J. S. A. 39 :4-90 in the charge. The right-of-way statute does not apply at intersections where traffic is controlled by traffic signals, See Corrigan v. Aero Mayflower Transit Company, Ohio App., 91 Ohio Law Abst. 26, 187 N. E. 2d 622, 624 (Ct. App. 1963); Smith v. Flannery, 383 Pa. 526, 119 A. 2d 224, 227 fn. 2 (Sup. Ct. 1956); Spence v. Carne, 40 Tenn. App. 580, 292 S. W. 2d 438, 447 (Ct. App. 1954); Shoe v. Hood, 251 N. C. 719, 112 S. E. 2d 543, 548-549 (Sup. Ct. 1960).

It is undisputed that plaintiff’s car entered the intersection before defendant’s. The charge was misleading because it permitted the jury to conclude that the judge’s subsequent reference to N. J. S. A. 39:4-81 (observing traffic signals) and N. J. S. A. 39:4-105 (three-color traffic signals) did not govern the conduct of the parties upon approaching the intersection.

Reversed and remanded for a new trial.


text:
    STATE OF NEW JERSEY, BY THE COMMISSIONER OF TRANSPORTATION, PLAINTIFF-APPELLANT, v. JOHN N. MANDIS, ET AL., DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued March 28, 1972
    Decided April 21, 1972.
    Before Judges Labbecque, Kolovsky and Allcokn.

      Mr. Alfred L. Nardelli, Deputy Attorney General, argued the cause for appellant (Mr. George F. Kugler, Attorney General, attorney; Mr. Stephen Slcillman, Assistant Attorney General, of counsel; Mr. Roger L. Hillman, Deputy Attorney General, on the brief).

      Mr. Marvin H. Gladstone argued the cause for respondent (Messrs. Gladstone, Hart, Kronenberg, Mandis, Rathe & Shedd, attorneys).
   Pee Curiam.

Condemnation commissioners found that the value of defendants’ property being taken by plaintiff was $66,700. On appeal, a jury found the value to be $83,000. Defendants unsuccessfully moved for a new trial or for entry of judgment n.o.v. in the sum of $135,000, which they claimed was the true value of the property. (Plaintiff had originally offered $53,000).

On May 1, 1970 judgment was entered on the jury verdict awarding defendants $83,000 plus interest at 6% per annum from April 14, 1969, the date the complaint was filed, it appearing that the plaintiff had not taken possession until after the jury verdict.

On July 33, 1970 defendants filed a notice of motion for an order awarding them “legal fees and expert witness fees in the total amount of $5300,” alleging that they were entitled thereto under the authority of N. J. Tpk. Authority v. Bayonne Barrel & Drum Co., 110 N. J. Super. 506, an opinion filed in the Law Division on April 37, 1970.

Relying on that case, the trial court here on November 13, 1970 entered an order granting defendants’ motion and setting the matter down for hearing as to amount of counsel fees and witness fees to be awarded. Eollowing that hearing the court, on April 8, 1971, entered an “amended judgment,” adding to the amounts set forth in the final judgment of May 1, 1970 “as additional compensable costs and expenses” to be paid by plaintiff to defendant, the sum of $5600.”

Plaintiff appeals from the amended final judgment. We reverse. The Supreme Court’s ruling in Housing Authority, Long Branch v. Valentino, 47 N. J. 265, 268 (1966) is dispositive :

With respect to the order denying counsel and expert witness fees, again we find no error. There is no provision in the statute for them. And the application for counsel fees is not within the scope of our existing rule. See R.R. 4:55-7 [now R. 4:42-9],

In so far as N. J. Tpk. Authority v. Bayonne Barrel & Drum Co., 110 N. J. Super. 506 (Law Div. 1970), holds to the contrary, it is disapproved.

It is of interest to note that the bill which eventually was enacted as the “Eminent Domain Act of 1971,” L. 1971, c. 361, N. J. S. A. 20 :3—1 to 50, originally embodied a section reading as follows:

27. Expenses of condemnee. Should the compensation as finally determined in the action, exclusive of interest, exceed the amount of the deposit by 25% or more, the court, after hearing, may determine that in addition to the amounts so determined to be payable, the condemnor shall pay the expenses of the condemnee as herein defined, to be fixed by the court, but not to exceed 10% of the compensation so determined,

but that section was deleted before the bill was enacted into law.

The “amended judgment” is reversed.


author: Harrison, J. C. C.

text:
    CELIA ENGELSON, PETITIONER-RESPONDENT, v. J. F. ZUCKER COMPANY, RESPONDENT-APPELLANT, AND CELIA ENGELSON, PETITIONER-RESPONDENT, v. REMCO INDUSTRIES, INC., RESPONDENT-RESPONDENT.
    Essex County Court, Law Division
    Argued February 18, 1972
    Decided March 9, 1972.

      Mr. Henry Harris for petitioner-respondent (Mrs. Genevieve Flicker on the brief; Messrs. Bothbard, Harris & Oxfeld, attorneys).

      Mr. Thomas J. Osborne, Jr. for respondent-appellant (Messrs. Vaccaro & Osborne, attorneys).

      Mr. Thomas H. Green for respondent-respondent.
   Harrison, J. C. C.

This appeal from awards of the Division of Workmen’s Compensation raises the novel question of liability for death benefits where an employee sustained a compensable heart attack while working for one employer, obtained new employment upon recovery and after the passage of more than 3% years sustained another compensable heart attack, followed by his rapid deterioration culminating in death.

Petitioner Celia Engelson applied for dependents’ death benefits for herself and her six-year-old daughter pursuant to N. J. S. A. 34:15-7 et seq. The Division found both employers equally liable for the death benefits, directing each to pay its half on the basis of the salary paid decedent while in its employ. The first employer appeals, disclaiming any obligation for death benefits. Petitioner filed a pro forma cross-appeal to protect against the possible reversal of the Division’s judgment against both employers. The second employer has filed no appeal or cross-appeal.

The basic issue on this appeal is whether the first employer should be held equally liable for death benefits with the successor employer. Considering the case de novo upon the record before the Division, I find the essential facts to be as follows:

Although only 45 years old, Jack Engelson apparently had an advanced arteriosclerotic condition. On June 12, 1963, while working for respondent-appellant Zueker at a weekly wage of $130, he suffered an acute myocardial infarction due to his work efforts, for which the Division awarded him temporary disability for 20 weeks and permanent disability at 40% of permanent partial total disability.

After recovering from this attack Engelson went to work for respondent Remco, receiving a reduced weekly salary of $84.37 for a job requiring less effort and less hours, 20 hours a week, because of his impaired physical condition. Remco showed this consideration for Engelson as a former employee. On April 3, 1967, three years and ten months after his 1963 attack, Engelson, after some strenuous exertions in the course of his employment by Remco, suffered a second heart attack for which he was hospitalized with a diagnosis of arteriosclerotic heart disease with a very extensive anteroseptal myocardial infarction.

The Workmen’s Compensation Division on March 21, 1968 determined Engelson to be 100% disabled as a result of the second attack but found no causal relation between the 1963 and the 1967 attacks. The Division credited the 40% awarded after the 1963 attack as part of the 100% and held that the 1963 award had relieved Zueker of all obligations in the proceedings, in that matter for any further temporary or permanent disability. This holding was based on the medical testimony that Engelson’s heart condition had “stabilized” between the 1963 and 1967 attacks, meaning that he had a healed infarction which remained unchanged or stationary for an appreciable length of time, from June 1963 to April 1967.

After the April 1967 attack Engelson became unemployable as a cardiac cripple. He was in congestive heart failure and was hospitalized four times during the two years following the April 1967 infarction; in August 1968 for coronary insufficiency, in November 1968 and February 1969 for anteroseptal infarctions, and on May 21, 1969 for extreme heart failure. He died at his home on June 23, 1969. There was no autopsy. The death certificate, as completed by his treating physician, Dr. Saul Lieb, stated the cause of death as being arteriosclerotic heart disease and multiple myocardial infarctions.

The issue of Zucker’s liability for death benefits turns upon the ascertainment of a medical fact issue: Was there a sufficient causal relation between the compensable infarction of June 1963 and the death of June 23, 1969? Kemco, the second employer, supports the petitioner’s position. It urges that both the June 1963 and the 1967 episodes contributed substantially to the death in 1969. Therefore, both employers are liable for the dependents’ death benefits.

Dr. Lieb, decedent’s attending physician, testified that the 1963 infarction made decedent more susceptible to the 1967 infarction. Later in his testimony he said decedent died of congestive heart failure and not as a result of myocardial infarction “because the heart was no longer an efficient mechanism, an efficient pump. It had lost its elasticity and pumping power with each of the several previous myocardial infarctions, each independent but each in its turn injuring the heart.”

Dr. Sanford Lewis, also an internist, testified on behalf of Remco, the last employer. He had examined Engelson for Remco after the second attack in 1967. He found Engelson had a biochemical situation which was “impossible.” He testified:

A. * * * This man was susceptible to new myocardial infarctions not because he had had a previous myocardial infarction at work but because he had a biochemical situation producing arteriosclerosis of his coronary arteries. If he never had that coronary at work he would still be equally susceptible to new infarctions that we talked about. It’s the biochemistry and the arteriosclerosis that produces the susceptibility.
Q. In other words, the progression of this arteriosclerotic process would inevitably have produced this second, third and fourth infarctions?
A. That’s right.

He also testified that if a patient succumbs to heart failure, it is at least in part due to the total of damages of those infarctions to the heart as a pump. But he was also definite in saying that one infarction does not make a person susceptible to another, disagreeing with Dr. Lieb on this subject.

Dr. Jacob S. York, testifying for the first employer, Zucker, gave his opinion that there was no causal relationship between the June 1963 episode and the patient’s demise in June 1969. He had examined the patient on October 12, 1963 after the first attack, and on October 16, 1967 after the second attack. His opinion was given in answer to a hypothetical question which did not reflect an entry in a hospital record that indicated decedent had sustained some degree of cardiac failure immediately after the 1963 episode. When this was called to his attention, Dr. York stated such temporary episodes are not unusual; “the important thing is that when I saw the man on October 12, 1963, approximately five months after the infarction, he showed no evidence of cardiac failure.” He did say, however, that the infarctions left parts of the heart fibrotic, indicating a functional impairment of the heart.

The dilemma in which this court is placed by conflicting medical opinions in appeals such as this has been most understandingly described in the opinion of our Supreme Court in Dwyer v. Ford Motor Co., 36 N. J. 487 (1962).

The authorities relied upon by the parties all agree that there must be causal relation between an employment accident and death for survivors to be entitled to the benefits under N. J. S. A. 34:15. See Renner v. R. L. Tool & Die Co., 57 N. J. 190 (1970); Walck v. Johns-Manville Products Corp., 56 N. J. 533 (1970); Close v. Kordulak Bros., 44 N. J. 589 (1965); Dwyer v. Ford Motor Co., supra; Hagerman v. Lewis Lumber Co., 13 N. J. 315 (1953). Note the collections of authorities in these cases. All of the cited cases except Benner involved a workman’s death due to heart failure.

Before considering the basic issue of the causal relationship it may be well to define some terms as they may pertain to the issues in this case. Black’s Law Dictionary (Rev. 4th ed. 1968) gives the following definitions:

Cause: v. To be the cause or occasion of; to effect as an agent; to bring about; to bring into existence; * * * to induce, to compel. [at 278]
Cause: n. Each separate antecedent of an event, [at 278]
Efficient cause: The working cause; that cause which produces effects or results; an intervening cause, which produces results which would not have come to pass except for its interposition, and for which, therefore, the person who set in motion the original chain of causes is not responsible, [at 605]
Efficient intervening cause: * * * A new and independent force which breaks causal connection between original wrong and injury. [at 605-006]
Condition: * * * Mode or state of being, [at 365]
Effect: n. Result, [at 605]

The medical testimony indicates the following chain of causation that led to the ultimate effect or result, i. e. Engelson’s death. In the first instance, Engelson had a bad biochemical condition — “impossible” by Dr. Lewis’ description. This brought on or induced his advanced arteriosclerotic condition. The occlusionary effect of arteriosclerosis was due to the progressive hardening and narrowing of the blood vessels which in turn brought on the myocardial infarctions with their attendant necrosis, scar tissue or fibrosis, thereby affecting the efficiency of the heart as a pump. Overexertion, tension or strain superimposed upon the condition of Engelson’s cardiovascular system impaired as it was by his advanced arteriosclerosis caused the 1963 infarction. This in turn caused a degree of congestive heart failure in June 1963 while he was in the hospital, although there was no evidence of it in October 1963, according to Dr. York who examined him on October 12, 1963. The infarction healed with some necrotic effect on the heart muscle, which resulted in Engelson, as a man, as a functional unit being deemed 40% impaired by the Division Judge Katzman.

Although his heart condition had stabilized or was operating on a plateau for almost four years, the deterioration of his arteriosclerotic condition continued. His reckless overexertion on April 3, 1967, superimposed on his then deteriorating arteriosclerotic condition, caused a more serious heart attack, with its attendant myocardial infarction and congestive heart failure. This episode made him a cardiac cripple. Immediately following the 1967 attack his cardiovascular condition worsened, and with the heart as a pump left impaired by the 1963 and 1967 infarctions, more infarctions and heart failure episodes led to his death on June 23, 1969.

At what point in this chain of causation is it realistically reasonable to fix the kind of causal relationship to the death contemplated by the policy of the statute and the decisions of our courts? The cases primarily relied upon by respondent employers are readily distinguishable on their facts from the instant case. In Hagerman, supra, 13 N. J. at 318, the court held that a 1945 cardiac episode was an inducing cause of the death irrespective of the passage of time. A direct causal relationship was found between the attack and the death. There was no intervening employment effort present in this case.

Similarly, in Close, supra, 44 N. J. at 600, there was only one work-connected heart episode from which, it was adjudged, decedent never recovered. Significant in the difference between Close and the instant case is the fact that the autopsy in that case showed no other infarction but the first which resulted in congestive heart failure. Again the court found a direct causal relation without an efficient intervening cause.

The essential facts in Schiffres v. Kittalinny Lodge, Inc., 39 N. J. 139 (1963), are in many ways similar to those present here: the two major infarctions, the stabilization periods of approximately 3 years to four years, the arteriosclerotic underlying conditions, the 3IJ/2% and 40% disabilities after the first infarction, and even the ages of the decedents, both in their forties at the time of the first episode. The only distinction between the two cases is the fact that in Schiffres the second heart attack did not arise out of or in the course of his employment. All claims for benefits were made against the employer at the time of decedent’s first attack. The court’s rationale in Schiffres is applicable here. There the award for the first attack under all the prevailing circumstances was held dispositive of all the employer’s obligations under the act. Similarly, in this ease, Division Judge Levine, in determining Engelson’s 100% permanent total disability as a result of the 1967 attack, crediting the 40% disability award for the first episode, dismissed decedent’s petition claiming employer Zucker had a continuing obligation because of the alleged causal relationship between the 1963 and 1967 attacks. The compensation judge based his dismissal on the testimony of Dr. Lieb, sajdng in his decision on March 21, 1968

* * * that the condition of the petitioner had become fixed and stabilized for a considerable period of time following the first infarct. In fact, it was some three and a half years following the infarct — or a little bit longer than that — and only as a result of the new intervening situation, namely, the aggravation of his cardiac condition by the occurrences in April of 1967 while working for Remco, do we have his condition affected and now translated into obvious total disability.
So it would appear to me — unless I can be persuaded otherwise — that the respondent Zucker is relieved of all obligations in this matter for temporary disability and permanent disability. (T-13)

The same reasoning is applicable with respect to the death benefit claim against Zncker. Schiffres, as the later decision of Close held, did not bar a death benefit claim solely on the basis of time elapsed between a heart attack and death. Schiffres does hold that there must be demonstrable evidence of a causal relationship between the attack and the death. Considering the medical and physical chain of causation, based upon all the doctors’ testimony, the testimony as to the compensable accidents of 1963 and 1967, and the legal concepts of causation, I hold that the causal relation required by Schiffres, as well as the other cases, is not what the general definition of “cause” encompasses. Within such a definition “each separate antecedent of an event” would include decedent’s biochemical condition, his arteriosclerotic condition and the condition of the heart after the infarctions resulting from the - employment accidents acting on the poor condition of decedent’s blood vessels. It is not the condition of the workman that determines the employer’s responsibility. It is well settled that an employer takes a worker in the health condition that he hires him. Dwyer, supra, 36 N. J. at 512. It is the compensable accident defined in N. J. S. A. 34:15 that causes certain conditions as consequences. As Dr. Lewis testified, one infarction does not cause another. Similarly, the death in this case did not result from an infarction but from the congestive heart failure, in itself due to a number of factors, i. e., all the links in the chain of causation forged by the testimony of the medical experts.

Plausible arguments were made by respondent’s medical witnesses for the contributory or causal effect of the 1963 episode to the 1969 death as being part of the cumulative effect of all the links in the chain of causation. I find, however, that from 1963 to 1967 the impaired heart condition was fully compensated by the 40 % award, was stabilized for a period of almost four years, and may have permitted decedent to have lived as long as his underlying cardiovascular condition would allow without the intervention of another accident; and that decedent’s unheeding overexertion while in Bemco’s employ in 1967 constituted the efficient intervening cause which produced the heart attack with its immediate consequences of congestive heart failure and the ensuing episodes that resulted in death in 1969. The 40% award for the 1963 episode indicates a substantial functional disability, but this does not necessarily indicate the “appreciable degree” of contribution to the death mentioned in Dwyer where, as here, we have an efficient intervening cause with such immediate devastating consequences.

I find for the reasons herein set forth that respondent employers have not sustained the burden of proving that the 1963 episode was causally related to the 1969 death, and that the 1967 accident and its consequences constituted an efficient intervening cause of death for which Zuckor is not liable for benefits under the statute. As to the provisions with respect to medical bills and legal fees, the judgment of the Division Judge Prioletta is affirmed.

This matter is remanded to the Division of Workmen’s Compensation for a revision of its judgment and entry of an appropriate award in accordance with this opinion.


author: McKenzie, J. D. C.

text:
    BEATRICE LEE, INDIVIDUALLY, AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, PLAINTIFF, v. HOUSING AUTHORITY OF THE CITY OF ELIZABETH, J. WILLIAM FARLEY, JR., IN HIS CAPACITY AS EXECUTIVE DIRECTOR OF THE HOUSING AUTHORITY OF THE CITY OF ELIZABETH, DEFENDANT.
    District Court, Union County
    Decided April 24, 1972.

      Mr. David Einhorn, of the Union County Legal Services Corp., attorney for plaintiff.

      Mr. Seymour 8. Lichtenstein, attorney for defendant.
   McKenzie, J. D. C.

Plaintiff in a class action in behalf of herself and other tenants of defendant seeks to have this court declare as unconstitutional the lease used by defendant and presently in effect in the low-rent housing projects it manages. Defendant moved for summary judgment and plaintiff, agreeing that there was no issue of material fact, consented to have the matters decided as on cross-motions for summary judgment.

Defendant is a municipal housing authority organized pursuant to N. J. S. A. 55:14-1 et seq., and is subject to the provisions of the United States Housing Act, 42 U. S. C. A. § 1401 et seq. The latter provides that the United States Housing Authority, now the Department of Housing and Urban Development (hereinafter HUD), may make such rules and regulations as may be necessary to carry out the provisions of the act. 42 U. S. C. A., § 1408.

Under this delegation of power HUD has issued certain regulations, or circulars, setting forth various provisions which are prohibited in low-income public housing leases such as those under consideration, and requiring other provisions to be included- in such leases. Defendant concedes that its present form of lease may not comply with these circulars, but challenges the authority of HUD to impose such mandatory regulations on the local housing authorities in the administration of low-income housing programs.

Circular NHM 7465.6, issued August 10, 1970, prohibits certain unfair provisions in low-rent public housing project leases, including a waiver by the tenant of any notice or right of legal proceedings prior to eviction where the housing authority determines that the tenant has violated his lease. Defendant’s form of lease provides in part:

5. The tenant hereby expressly waives all notice required by law to terminate his tenancy and all legal proceedings to recover possession of said premises, and agrees that upon any such termination the Management, at its option, may immediately reenter the premises and dispossess the Tenant without legal notice or the institution of any legal proceedings.

Circulars NHM 7465.8 and 7465.9, issued February 22, 1971, require that low-rent public housing project leases provide, among other things, the circumstances under which, for good cause only, the authority may terminate the lease, and a grievance procedure under which a tenant may obtain a hearing on any attempted termination of the lease or other action by the authority. Defendant’s form of lease provides in part, without any further applicable provision:

The Management or the Tenant may terminate this tenancy at the end of any calendar month by giving the Tenant or the Management, as the case may be, one month’s prior notice in writing.

11HM 7465.6 further provides that the housing authority may not include in its lease an exculpatory clause relieving the landlord of liability for failure to provide utilities or other services, whether deliberate or negligent on the part of the housing authority. The lease in question provides:

The Management shall not be liable for failure to supply any of the above services, electrical current and water for any cause whatsoever.

HUM 7465.8 further provides that the lease shall set forth the responsibilities of the tenant in connection with his dwelling unit, and the limitations on his right to use of the same. Defendant’s lease provides that the tenant agrees:

In the event that the number of occupants of said apartment exceeds, in the opinion of the Management, the number of persons that should reasonably be permitted to occupy the apartment, or, in the event that the total of the includable income of the occupants of the apartment is not in excess of the maximum rent now, or which may be permitted for continued occupancy of the apartment, the Tenant and all occupants thereof shall remove therefrom upon written notice from the Management to the Tenant, requesting the Tenant to vacate within a period of not less than one (1) month from the service of such notice, and which notice shall have as its termination date, a monthly rental due date.
The Management may make any proper deductions from the income disclosed under this paragraph, or make any proper allowances in connection therewith, in accordance with the then effective rules and regulations of the Management, and its determination in the matter of income of the occupants shall he incontestahle. [Emphasis added]

It is clear that tbe present lease form now in effect violates the regulations of IIUD in each of the instances set forth.

Defendant asserts that HUD is without authority to require specific provisions in the leases of local housing authorities, relying on 42 U. S. C. A., § 1401, which provides in part:

It is the policy of the United States to vest in the local public housing agencies the maximum amount of responsibility in the administration of the low-rent housing program, including responsibility for the establishment of rents and eligibility requirements (subject to the approval of the Authority), with due consideration to accomplishing the objectives of this chapter while effecting economies.

First, it should be recognized that there is a presumption in favor of the validity of administrative rules and regulations, and the burden of showing invalidity is on the party attaching it. National Customs Brokers & Forwarders Ass’n of America, Inc. v. Federal Maritime Comm’n, 380 U. S. 914, 85 S. Ct. 902, 13 L. Ed. 2d 800 (1964).

Defendant relies principally on a recent decision of the United States District Court for the District of Nebraska, involving the Housing Authority of the City of Omaha. Housing Authority of City of Omaha, Nebraska v. United States Housing Authority, 54 F. R. D. 402 (1972). The court held that RHM 7465.58 and 7465.9 were an invalid exercise of the power of HUD in that they constituted interference in the da3'--to-day management by the local housing authorities, prohibited by § 1401. That decision, however, is not in line with the holdings of other courts on the subject, and the District Court itself stated that the requirements of the circulars might be otherwise mandated on due process grounds, but that that issue was not before the court.

The decisions which have upheld the HUD circulars have as their anchor point Goldberg v. Kelly, 397 U. S. 254, 90 S. Ct. 1011, 25 L. Ed. 2d 287 (1970). There the United States Supreme Court held that public welfare recipients were entitled, as a matter of due process under the Fourteenth Amendment of the United States Constitution, to notice and an evidentiary hearing before their benefits could be terminated. The court stated:

* * * From its founding tbe Nation’s basic commitment has been to foster the dignity and well-being of all persons within its borders. We have come to recognize that forces not within the control of the poor contribute to their poverty. This perception, against the background of our traditions, has significantly influenced the development of the contemporary public assistance system. Welfare, by meeting the basic demands of subsistence, can help bring within the reach of the poor tile same opportunities that are available to others to participate meaningfully in the life of the community. At the same time, welfare guards against the societal malaise that may flow from a widespread sense of unjustified frustration and insecurity. Public assistance, then, is not mere charity, but a means to ‘promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity.’ The same governmental interests that counsel the provision of welfare, counsel as well its uninterrupted provision to those eligible to receive it; pretermination evidentiary hearings are indispensable to that end.

Defendant’s tenants are the recipients of public benefits based on need, substantially the same as the recipients of direct benefit payments under consideration in Goldberg. Only persons earning under a stated income are eligible for housing from defendant, and the rent is determined in each individual’s ease by the amount of bis income. To the extent that the rent so established is below the amount previously determined as the proportionate share of the project’s overall expenses and carry charges allocated to that dwelling unit, the tenant’s rent is subsidized by the Federal Government under the annual contributions contract. 42 U. S. C. A., § 1410.

The application to low-rent public bousing tenants of the benefit of the due process requirements enumerated in Goldberg has already taken place in other jurisdictions. Escalera v. N. Y. C. Housing Authority, 425 F. 2d 853 (2 Cir. 1970); Davis v. Toledo Metropolitan Housing Authority, 311 F. Supp. 795 (N. D. Ohio 1970); Caulder v. Durham Housing Authority, 433 F. 2d 998 (4 Cir. 1970) ; Brown v. Housing Authority of Milwaukee, 340 F. Supp. 114 (D. C. E. D. Wis. 1972).

In addition, the authority of HUD to issue regulations in the form of circulars, implementing the due process requirements of Goldberg, has been upheld in other cases. Glover v. Housing Authority of Bessemer, Ala., 444 F. 2d 158 (5 Cir. 1971); Chicago Housing Authority v. Harris, 49 Ill. 2d 274, 275 N. E. 2d 353 (Sup. Ct. 1971); Housing Authority of Milwaukee v. Mosby, 53 Wis. 2d 275, 192 N. W. 2d 913 (Sup. Ct. 1972). See also, pre-dating Goldberg, the leading case of Thorpe v. Housing Authority of Durham, 393 U. S. 268, 89 S. Ct. 518, 21 L. Ed. 2d 474 (1969).

It is clear that local housing authorities are necessarily subject to greater restrictions than private landlords. Their goal is not financial profit but to provide housing to needy persons who otherwise might not be able to obtain adequate living quarters. The facilities which they manage are merely tools to be used to meet the public need for low-rent housing. This objective is thwarted if eligible tenants are wrongfully evicted; even the most undeserving and undesirable tenant is entitled to due process. See Ruffin v. Housing Authority of New Orleans, 301 F. Supp. 251 (E. D. La. 1969) ; Caulder v. Durham Housing Authority, supra.

If paragraph 5 of defendant’s lease were literally enforced, plaintiff and other tenants could be evicted from their dwellings at any time without any notice whatsoever, and without the protection of any legal proceedings. To state the position of the tenants is sufficient to demonstrate the lack of due process and fundamental fairness accorded to them under the terms of the lease. Obviously, also, it is no answer that defendant housing authority, as a matter of policy, has refrained from exercising the broad powers which it has given itself under the lease.

Even if the lease did not deny a tenant the right to access to the courts, it would still offend due process principles, since, applying the holding of Goldberg, he is also entitled to an evidentiary hearing at the administrative level, before an impartial official or panel, including prior notice of the grounds for the action of the authority, the right to call and examine witnesses, the right to legal counsel, and a decision setting forth the reasons on which it is based. Glover v. Housing Authority of Bessemer, Ala. and Escalera v. N. Y. C. Housing Authority, supra.

Clearly, the lease form presently in use by defendant fails to conform with the requirements of the HUD Circulars and the controlling concept of due process. This, therefore, declares the provisions cited to be unenforceable. The court’s injunction issued January 7, 1972 will remain in effect until such time as a proper lease, embodying the provisions required by HUD, shall have replaced the present lease.

Summary judgment will therefore be entered on the first, second, third and fourth counts in favor of plaintiff. The disposition of the remaining count, involving the handling and disposition of security deposits, will await the outcome of a trial.


text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. JOSEPH F. STURN, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Submitted March 20, 1972
    Decided April 27, 1972.

      Before Judges Sullivan, Leonaed and Caeton.

      Messrs. McDonough, Murray & Meeker, attorneys for appellant (Mr. David J. Meeker, on the brief).

      Mr. Karl Asch, Union County Prosecutor, attorney for respondent (Mr. Elson P. Kendall, Assistant Prosecutor, on the brief).
   Per Curiam.

Defendant was convicted of driving his motor vehicle while his ability to operate was impaired by consumption of alcohol (N. J. S. A. 39:4-50(b)). He does not dispute the validity of the conviction. However, he challenges the correctness of the trial court’s action in holding him to be a subsequent offender under the statute by reason of his conviction in 1963 of drunken driving.

The problem arises because N. J. S. A. 39:4-50, the statute under which the 1963 conviction took place and which dealt only with driving under the influence, was amended in 1966. The effect of this amendment is two-pronged: (1) it retains in force and indeed reads essentially the same as the offense condemned under the former statute of driving under the influence of alcohol, and (2) it establishes a new, but lesser and included offense, of driving while one’s ability to operate is impaired by consumption of alcohol. See State v. Macuk, 57 N. J. 1, 12 (1970).

Both offenses involve the same kind of conduct and are directed against essentially the same evil. That evil is the operation of a motor vehicle by one affected in such a degree that it may affect the safety of others as well as that of the operator himself. Driving under the influence involves more serious consequences than driving while impaired, but the offenses differ mainly in degree. (Indeed, as our Supreme Court has recognized, the impairment offense prescribed under (b) is a lesser included offense of driving under the influence. State v. Macuk, supra.)

The original statute, as well as the individual subsections of the new statute, contain provisions for the imposition of additional penalties for subsequent offenders. As indicated above, defendant’s 1963 conviction was under the older statute. His present conviction is under subsection (b) of the new statute.

Two narrow issues are thus presented: (1) may a conviction for driving with impaired faculties under (b) be deemed a subsequent conviction to one under (a) for driving under the influence of intoxicating liquor, and (2) if so, may such a conviction for driving while impaired be deemed to be a subsequent offense to a conviction under the statute before it was amended in 1966? We hold that both questions should be answered in the affirmative and therefore the second or subsequent offender provision was properly invoked. Statements to the contrary in State v. Cannon, 94 N. J. Super. 66 (Cty. Ct. 1967), are disapproved.

Since the earlier offense of driving under the influence includes the lesser offense of driving while impaired and thus contains all of the elements of the lesser offense, we conclude that the two offenses must be considered the same for purposes of the invocation of the second or subsequent offense penalty for impairment. The salutary purpose of that section would appear to establish a deterrent and preventative sanction to be employed against those whose continued disregard of the safety or the welfare of other members of the public is manifested by a second conviction of the same nature. It would be incongruous to hold that the Legislature intended to preclude the invocation of the subsequent offender section in spite of the fact that the prior conviction contained all the elements of the present conviction and was more serious than the present conviction.

Nor do we perceive any valid reason why defendant may not be penalized as a subsequent offender under the impairment provision simply because the first offense occurred before the 1966 amendment. A conviction under the old statute is, for all practical purposes, the same as one under (a) of the amended act and logically should be treated as such. The amendment merely added a newer and lesser category of the same kind of offense.

Finally, we see no basis for the contention that the 1963 conviction cannot be used to invoke the second offender penalties provided by subsection (b) because it violated the ex post facto provisions of the Federal and State Constitutions. The punishment provided under (b) is for the second offense, not the first. The penalty imposed for the first offense is in no way increased. The first merely provides a background to be considered in sentencing for a second offense. Only the fact of the second conviction brings heavier penalties for the subsequent offense. See State v. Rowe, 116 N. J. L. 48, 53-57 (Sup. Ct. 1935), aff'd 122 N. J. L. 466 (E. & A. 1939), where a statute had been amended in 1931 with a provision for increased penalties for second offenders; it was held not to be a violation of the ex post facto provision to impose those penalties in 1934 because of previous conviction in 1924. See also, In re Zee, 13 N. J. Super. 312, 317-320 (Cty. Ct. 1951), aff'd 16 N. J. Super. 171 (App. Div. 1951), cert. den. 343 U. S. 931, 72 S. Ct. 766, 96 L. Ed. 1340 (1952), cited at length in In re Caruso, 10 N. J. 184, 188-190 (1952).

Affirmed.


text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. ELLA HOPSON, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued March 20, 1972
    Decided April 28, 1972.
    Before Judges Cobles ter, Mintz and Lynch.

      Mr. Edward Carl Broege argued the cause for appellant {Messrs. Broege, Fogel & Weinglass, attorneys).

      Mr. Elson P. Kendall, Assistant Prosecutor, argued the cause for respondent {Mr. Karl Asch, Union County Prosecutor, attorney).
    Statement in lieu of brief submitted by Mr. Michael B. Perle, Deputy Attorney General, for the State of New Jersey, intervenor {Mr. George F. Kugler, Jr., Attorney General of New Jersey, attorney).
   Per Curiam.

Defendant was indicted on two counts: (1) in public, inciting an assault upon Albert Carhart, a municipal officer of the City of Linden, while in uniform, contrary to N. J. S. A. 2A:148-10(b), and (2) assault and battery upon said officer while acting in the performance of his duties, contrary to N. J. S. A. 2A:90-4(a).

Defendant’s motion for dismissal of the indictment was denied in an opinion reported in 109 N. J. Super. 382 (Law Div. 1970).

Defendant was tried to a jury and found not guilty of the assault and battery charge. The jury failed to reach a verdict on the “inciting count.” After a second jury trial in November 1970, defendant was found guilty of inciting an assault, in violation of N. J. S. A. 2A:148-10(b).

The State’s evidence was to the effect that on September 19, 1968 a demonstration of a substantial number of persons occurred at Linden High School. Lt. Albert J. Car-hart, of the city police department, was assigned to photograph student disorders. According to Carhart, a black youngster kicked Carhart, whereupon he grabbed the boy and arrested him. As he did so, a woman whom Carhart did not know but whom he identified as defendant yelled “Eree the black boy. Don’t let him lock him up. Get the cop, get the cop.” A number of black youths surrounded Carhart, grabbed at him, and he was forced to release the boy.

Defendant testified to an entirely different version. Admittedly present at the high school, she denied being in the vicinity of the kicking incident and denied using the language attributed to her. Several witnesses corroborated her testimony.

On appeal defendant challenges the constitutionality of N. J. S. A. 2A:148-10. She further contends that assuming it could permissibly do so, the trial court’s charge to the jury did not cure the facial defects in the cited statute. N. J. S. A. 2A:148-10 provides that:

Any person who, in public or private, by speech, writing, printing of otherwise, advocates, encourages, justifies, praises or incides:
a. The unlawful burning or destruction of public or private property ; or
b. Assaults upon any of the armed forces of the United States, the national guard, or the police force of this or any other state or of any municipality; or
c. The killing or injuring of any class or body of persons, or of any individual. —
Is guilty of a high misdemeanor.

Initially, defendant argues that the trial court erred when it held the statute in question to be facially constitutional. Defendant relies upon Brandenburg v. Ohio, 395 U. S. 444, 89 S. Ct. 1827, 23 L. Ed. 2d 430 (1969), which stands for the proposition that a state may not punish for mere “advocacy” except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action. A statute which fails to draw this distinction impermissibly intrudes upon First and Fourteenth Amendment rights. Significantly, there had been no construction of the statute by the Ohio courts that would bring it within constitutionally permissible limits. Hence, as observed in State v. Cappon, 118 N. J. Super. 9, 19 (Law Div. 1971), the Ohio statute in Brandenburg was held unconstitutional “ ff>y its own words and as applied [it] purports to punish mere advocacy.’ ”

The predecessor statute to N. J. S. A. 2A:148-10 was similar in substance. It was adjudged constitutional in State v. Quinlan, 86 N. J. L. 120 (Sup. Ct. 1914), aff'd o. b. 87 N. J. L. 333 (E. & A. 1915), and State v. Boyd, 86 N. J. L. 75 (Sup. Ct. 1914), aff'd o.b. 87 N. J. L. 328 (E. & A. 1915). In Quinlan the indictment charged that defendant in public by speech advocated, encouraged and incited persons to injure non-strikers, i. e. “ T make a motion that we go to the silk mills; parade through the streets and club them out of the mills, no matter how we get them out, we got to get them out,’ * * 86 N. J. L. at 122 (emphasis supplied). Similarly, the indictment in Boyd charged that defendant, by speech, advocated, encouraged and incited strikers to destroy private property by means of sabotage.

Ordinarily, as observed in State v. Cappon, supra, 118 N. J. Super. at 13, the ruling in Boyd would preclude this court from passing upon the constitutionality of the statute in question. See also, State v. New Jersey National Bank & Trust Co., 117 N. J. Super. 38, 48 (Ch. Div. 1971). However, in the more than 50 intervening years there have been several decisions challenging the constitutionality of statutes similar to the statute here under attack. Additionally, defendant’s contentions are broader than those urged in the earlier cases. Hnder these circumstances we deem it appropriate to consider the constitutional challenge to N. J. S. A. 2A:148-10.

Defendant contends that N. J. S. A. 2A:148-10 is (a) facially unconstitutional; (b) unconstitutional because it lacks the necessary element of intent; (c) unconstitutionally vague, and (d) suffers from the unconstitutional vice of o verb rea dth.

IVe start with the premise that every effort should be made to uphold a statute and every presumption indulged in favor of its validity. United States v. Harriss, 347 U. S. 612, 618, 74 S. Ct. 808, 98 L. Ed. 989 (1954) ; State v. Profaci, 56 N. J. 346, 349 (1970); State v. Klapprott, 127 N. J. L. 395, 399 (Sup. Ct. 1941).

Significantly, we have not been referred to a single case where there has been a prosecution under N. J. S. A. 2A:148-10 or its predecessor statute where the gravamen of the charge was other than incitement to imminent lawless action. The decisional law in this State pertains only to such factual situations. State v. Boyd, supra; State v. Quinlan, supra; State v. Cooper, 113 N. J. Super. 34 (App. Div. 1971). Implicitly, at least, in the cases to which we have alluded, our courts have afforded a narrowing construction to N. J. S. A. 2A:148-10 and its predecessor statute. Its applicability has been limited to persons who, in public or private, by speech, writing or otherwise, incite: (a) unlawful burning or destruction of propertjr, or (b) assaults upon the armed forces of the United States, the national guard, or the police force of this or any other state or of any municipality.

• We are mindful that the statute refers to a person “who advocates, encourages, justifies, praises or incites” assaults upon our armed forces, national guard and police forces. However, the statute, when read in context although not so expressly articulated, actually proscribes considerably more than mere advocacy or encouragement. Its implicit constitutional purpose is to render unlawful intentional conduct by any person who incites assaults upon our armed forces, national guard and respective police forces.

True, no one should be held criminally responsible for conduct he could not reasonably understand to be proscribed. Yet, a statute will not be struck down as vague, even though marginal eases could be put where doubts might arise. If a general class of offenses can be made constitutionally definite by a reasonable construction of the statute, the court is under a duty to give the statute that construction. United States v. Harriss, supra, 347 U. S. at 612, 618, 74 S. Ct. 808 (1954).

As already noted, defendant was specifically charged in the indictment with inciting an assault upon a police officer under a statute which has heretofore implicitly been narrowly construed to this effect. The unlawfulness of such conduct is beyond question. “Intent” is, of course, a necessary ingredient of the crime, and is read into the statute. Cf. State v. Profaci, 56 N. J. at 353.

Subsequent to oral argument our attention was directed to the recent United States Supreme Court decisions in Gooding v Wilson, 405 U. S. 518, 92 S. Ct. 1103, 31 L. Ed. 2d 408, decided March 23, 1972, and Papachristou v. City of Jacksonville, 405 U. S. 156, 92 S. Ct. 839, 31 L. Ed. 2d 110, decided February 24, 1972. We regard Papachristou as completely inapposite. In Gooding a Georgia statute which provides that any person without provocation uses in another person’s presence “ ‘opprobrious words or abusive language, tending to cause a breach of the peace * * * shall be guilty of a misdemeanor,’ ” was held unconstitutional. The court there said the statute could withstand attack upon its facial constitutionality only if, as authoritatively construed by the Georgia courts, it is not susceptible of application to speech, although vulgar or offensive, that is protected by the First and Fourteenth Amendments. Since the Georgia appellate courts had not construed the statute so as to avoid all constitutional difficulties, the statute was declared unconstitutional. However, the court in the course of its opinion stated that

It matters not that the words appellee used might have been constitutionally prohibited under a narrowly and precisely drawn statute. At least when statutes regulate or proscribe speech and when “no readily apparent construction suggests itself as a vehicle for rehabilitating the statutes in a single prosecution,” Dombrowski v. Pfister, 380 U. S. 479, 491, 85 S. Ct. 1116, 14 L. Ed. 2d 22 (1965), the transcendent value to all society of constitutionally protected expression is deemed to justify allowing “attacks on overly broad statutes with no requirement that the person making the attack demonstrate that his own conduct could not be regulated by a statute drawn with the requisite narrow specificity,” * * *. [Emphasis supplied]

Significantly, in the cited case of Dombrowski v. Pjister, the court reaffirmed the principle that even in a direct prosecution in the state’s own courts, a valid narrowing construction can be applied to conduct occurring prior to the date when the narrowing construction was made in the absence of fair warning problems. Such problems are not present in the instant case. Cf. State v. Profaci, supra, where an acceptable limiting statutory construction was applied to the defendant’s prior conduct allegedly in violation of N. J. S. A. 2A:170-29.

In passing we note that defense counsel, in opening his summation, told the jury:

What you have to decide is whether this charge, that Ella Hopson on September 19th, 1968, incited an assault on Officer Carhart, by yelling, as they have testified, “Free the black boy, let the black boy go.” That’s what you have to decide and that’s the framework within which I ask you to do your job.

Additionally, a reading of the trial judge’s charge in its entirety indicates that he stressed a factual finding “of inciting” and “criminal intent” to commit the offense as requisites to a finding of guilty. No objection was taken by defendant to the judge’s charge.

We adjudicate N. J. S. A. 2A:148-10 to be constitutional and affirm the conviction.


text:
    FREEDOM FINANCE CO., INC., A CORPORATION OF THE STATE OF NEW YORK, PLAINTIFF-APPELLANT, v. DONALD BERRY AND ESTHER BERRY, DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued April 10, 1972
    Decided April 27, 1972.

      Before Judges Sullivan, Leonard and Carton.

      Mr. John S. Giava argued the cause for appellant.

      Mr. Peter M. Siegel, Administrator, Middlesex County Legal Services, argued the cause for respondents (Middle-sex County Legal Services, attorney).
   Per Curiam.

Plaintiff, a small loan company, obtained a default judgment in the Civil Court of the City of New York against defendants on a renewal note. Plaintiff then brought suit in New Jersey on the New York judgment. The trial court refused to accord full faith and credit to the New York judgment and granted defendants’ summary judgment motion, holding that the New York court had not acquired jurisdiction over defendants.

It appears that defendants Berry originally traveled to Hewark in March 1965 in search of a loan in response to an advertisement of some kind. At the ABC Brokerage Company in Hewark they filled out a loan application and were required to obtain a cosigner. They were driven to plaintiff’s office in Staten Island by an ABC employee. Plaintiff accepted their application and issued a check to them, in consideration of which they executed a $966.48 note providing for repayment of the loan over a 24-month period in monthly installments of $40.27. Payments were to be made at Freedom’s Staten Island office. In April 1966 defendants owed $818.08. The affidavit of Donald Berry is to the effect that he received a letter at that time suggesting a renewal loan. In accordance therewith, defendants signed a short-form letter and mailed it, along with a renewal note in the amount of $971.66, to Freedom. The Berrys received a check for $800 from Freedom.

It thus appears that defendants went only once to New York in connection with the original transaction and did not go there at all in connection with the renewal note which formed the basis of the default judgment. We conclude that the trial court properly held that the Civil Court of the City of New York did not acquire long-arm jurisdiction over defendants. Merely providing for payments to be made in New York did not constitute transacting business so as to provide a basis for jurisdiction pursuant to the New York Long Arm Statute. New York Civil Practice Law and Rules, § 302; Hubbard, Westervelt & Motteley, Inc. v. Harsh Bldg. Co., 28 A. D. 2d 295, 284 N. Y. S. 2d 879 (App. Div. 1967). Nor should the mere fact that the Berrys picked up the check in Staten Island in connection with the original loan, after having already completed their application in New Jersey, subject them to jurisdiction in the action on the renewal note.

Affirmed.