author: Seidman, J. C. C.

text:
    HUNTERDON COUNTY DEMOCRAT, INC., A NEW JERSEY CORPORATION, PLAINTIFF, v. THE RECORDER PUBLISHING COMPANY OF BERNARDSVILLE, A NEW JERSEY CORPORATION; AND READINGTON TOWNSHIP, A MUNICIPALITY OF THE STATE OF NEW JERSEY, DEFENDANTS.
    Superior Court of New Jersey Chancery Division
    Decided December 10, 1971.

      Mr. Bussell W. Annich, Jr., for plaintiff (Messrs. Mason, Griffin & Moore, attorneys).

      Mr. Henry M. Hoyt for defendant The Recorder Publishing Company of Bernardsville (Messrs. Hoyt, Jeffers & Weilancl, attorneys).

      Mr. William M. D’Annunzio for defendant Readington Township (Messrs. Gebhardt & Kiefer, attorneys).
   Seidman, J. C. C.

(temporarily assigned). The principal issue in this declaratory judgment action is whether defendant newspaper qualifies under N. J. S. A. 35 :1-2.2 for the publication of official advertising.

Plaintiff Hunterdon County Democrat, Inc. owns and publishes a newspaper by that name which circulates generally throughout Hunterdon County, the principal office and place of publication of which is stated to be in the Borough of Elemington. Defendant Recorder Publishing Company of Bernardsville (Recorder) owns and publishes, among other weekly newspapers, The Hunterdon Review and The High Bridge Gazette (Review), which also has general circulation in that county, particularly in its northwest section, including Readington Township, the Town of Clinton and the Borough of Plemington.

Plaintiff contends that the Review moved its principal publication office from Whitehouse Station in Readington Township to the Town of Clinton in 1969, as a result of new ownership, and that in doing so the Review is no longer qualified to publish official advertising by virtue of the fact that it has not been published continuously in the township for the two-year period required by N. J. S. A. 35 :1-2.2. The Review disputes this and contends it is qualified to publish official advertising.

Although the Township of Readington was joined as a party defendant because of a possible issue of the validity of its official advertising in the Review, the parties agreed at the time of trial not to have that issue adjudicated.

Having considered the testimony of the witnesses produced on each side, the exhibits and the depositions received in evidence by stipulation, the court is now required to announce its findings of fact and state its conclusions of law thereon. R. 1:7-4.

I

The court finds that until June of 1969 the Review was owned by Review Publishing Company and published by Raymond von Culin. All functions of the newspaper were performed at an office located on Main Street, Whitehouse Station, although there was a small branch in High Bridge. In 1968 von Culin obtained a variance for a building owned by him in Clinton permitting him to open an office and install printing presses in that location. On May 14, 1969 he announced the consolidation of the Hunterdon Review with the High Bridge Gazette and the proposed “relocation of the Review Publishing Company’s plant and editorial and advertising offices in Clinton.” About a month later the name, circulation files and good will of the Review were purchased by Recorder.

Por a short time thereafter the Review continued to operate at Whitehouse Station, but the printing of the paper was transferred to Recorder’s plant in Bernardsville. On July 9, 1969 the Review opened an office in Clinton in space rented from von Gulin and moved editorial personnel and a bookkeeper to that location, retaining at the White-house Station office a full-time employee whose duties included some editorial work, preparation of advertising layouts, handling of classified advertisements and attending to circulation. In November 1969 he was replaced by an employee who functioned as circulation manager and classified advertising salesman, in addition to doing some news reporting. The editor of the newspaper, based in Clinton, spent part of each day in Whitehouse Station. Early in January 1970 a second employee was assigned to the White-house Station office.

The newspaper has been issued every Wednesday during all periods in question, and has been prepared for distribution at the Bernardsville office (now at Stirling), where copies are bagged or bundled and loaded onto a delivery truck sent there from Whitehouse Station the preceding night. The truck proceeds by a prescribed route to various post offices, news-stand locations and other nonmail delivery points in the Hunterdon County circulation area, leaving bags or bundles of newspapers for distribution.

The Review has been entered as second-class mail matter under the postal laws and regulations at the Whitehouse Station Post Office. The depositing of bags at other post offices is by arrangement with the postmaster at Whitehouse Station.

From these basic facts it is evident that although a substantial part of the editorial and advertising operations was transferred from Whitehouse Station to Clinton after the change in ownership in 1969, the Whitehouse Station office was retained and staffed for the transaction of business.

II

The qualifications of a newspaper for publishing official advertising are contained in N. J. S. A. 35:1-2.1 (state publications) and N. J. S. A. 35 :1-2.2 (publications by counties, municipalities, individuals and corporations). The pertinent provisions of each are identical:

* * * said newspaper or newspapers shall be entirely printed in the English language, shall be printed and published within the State of New Jersey, shall be a newspaper of general paid circulation possessing an average news content if not less than thirty-five per centum (35%), shall have been published continuously in the municipality where its publication office is situate for not less than two years and shall have been entered for tioo years as second-elass mail matter under the postal laws and regulations of the United States. In case a newspaper cannot meet these qualifications itself; but has acquired another newspaper which meets these qualifications, the acquiring newspaper shall be deemed to meet these qualifications if it is published in the same municipality and entered in the same post office as was the acquired newspaper. [Emphasis supplied]

The only statutory qualification in dispute in this case is the one pertaining to continuous publication “in the municipality where its publication office is situate for not less than two years.” Plaintiff argues that the place of publication of the Review was transferred to Clinton in July 1969 and that it thereafter ceased publication in White-house Station. Defendant newspaper claims that it has been published continuously in the original location for the requisite period, despite the moving of some of the editorial and advertising operations to Clinton.

To place the issue in proper perspective, one should note that the problem before the court is not whether the Review is eligible for designation by Readington Township as an official newspaper for the publication of all advertisements and notices required by law to be published by the municipality. See N. J. S. A. 40:53 — 1. In such case the statutory requirement is that the advertisements be “published in at least one newspaper published and circulating in the municipality, and if there be no such newspaper, then in at least one newspaper published in the county in which the municipality is located and circulating in the municipality.” N. J. S. A. 40:53-2. There is, of course, a potential overlapping of issues, but not until it is first determined that the newspaper in question possesses the statutory qualifications for publishing official advertising.

A newspaper not qualified to publish official advertising cannot be designated by a municipality as its official newspaper. But one that is qualified may or may not be eligible for such designation, depending on whether it is published and circulated in the municipality, or if there be none so eligible, whether it is published in the county and circulated in the municipality.

The issue here is whether the Preview has the requisite qualifications for official advertising, of which the pertinent one is that the newspaper shall have been published continuously in the municipality where its publication office is situate for not less than two years. The resolution of that issue requires interpretation of the words “publish,” “place of publication” and “publication office.”

As originally enacted, the statutory requirement was that the newspaper “shall have been published continuously for not less than one year and shall have been entered as second class mail matter under the postal laws and regulations of the United States.” “L. 1935, c. 177, § 1, and L. 1936, c. 208, § 1. The period of continuous publication was increased to two years by L. 1938, c. 328, and subsequently a two-year period was prescribed for the entry as second-class mail matter. L. 1941, c. 147. The requirement of continuous publication in the same municipality where its publication O'ffice is situate appeared for the first time in 1941. L. 1941, c. 409.

Dictionary definitions of “publish” and “publication” are not too helpful. The Random House Dictionary of the English Language (1966) definies “publish” as:

1. to issue, or cause to be issued, in copies made by printing or other processes, for sale or distribution to the public * * * 2. to issue publicly the work of * * * 6. to issue printed editions, as newspapers, books, etc. ® * *

“Publication” is defined therein as “the act of publishing.”

Other definitions of “publish” are: “to bring before the public, as for sale; esp.: a. To print and issue from the press, as a book, newspaper, etc.” Webster’s Collegiate Dictionary (5th ed. 1939); “* * * prepare and issue copies of (book, engraving, publication) for sale to the public,” American Oxford Dictionary (Am. ed. 1927). See also 35A Words and Phrases 150.

These definitions would have been adequate for the statute as it was worded prior to 1941, but the amendment adopted that year added another element to the general concept of publishing — location. How one must know not only whether the act of publishing is being performed, but also where it is done.

The statute pertaining to legal newspapers has received infrequent judicial attention in this State. In fact, cases on the general subject of newspaper publishing are sparse in number. An' early case, Bayer v. Hoboken, 44 N. J. L. 131 (Sup. 1882), aff’d 45 N. J. L. 185 (E. & A. 1883), dealt with an 1877 statute limiting the publication of municipal proceedings to designated newspapers printed and published in the city “that shall have been in existence and published in said city for over two years.” Writs of certiorari brought up for review resolutions of the common council of Hoboken awarding the official printing to the Hobohen Advertiser, the contention being that the paper was not printed in the State. The facts were that the office of the newspaper was in Hoboken; the entire matter for the newspaper was composed, set up and placed in forms there and then sent over to New York for the press work, and the papers were brought back to the Hoboken office for issuance to subscribers. The court rejected as too narrow an interpretation of the act the argument that the newspaper was not printed and published in Hoboken because the press work was done in New York. It held that the composition of the material, the setting of the type and preparing of the forms for the press work constituted substantial and important parts of the printing process, and that since this work was done exclusively in the Hoboken office, it was no misapplication of the statutory language to say that the paper was printed and published there.

In re Bond Printing Co., Inc., 135 N. J. L. 478 (E. & A. 1947), involved an application for a declaratry judgment to determine the right of the Asbury Parle Sun to continue to print and publish official advertising. The Bed Banle Daily Standard, which had been published in Bed Bank for a number of years, was purchased by Bond Printing Company, Inc., in 1945 and its name was changed to Asbury Parle Sun. The Standard was discontinued as a newspaper and all of its equipment was transferred to a building in Asbury Park, and the Sun was first printed and published there in January 1946. The plaintiff argued that since it printed, published and issued a daily newspaper in Asbury Park, it was not subject to the limitation and restrictions imposed by N. J. S. A. 35:1 — 2.1 and 35 :1-2.2. Its theory was that there is no statutory limitation on the domicile of a New Jersey newspaper, and once legal status had been attained, as in the case of the Standard, the name and domicile of the newspaper could be changed without the loss of its status.

The plaintiff conceded that for a newspaper to qualify for legal advertsiing it must be published continuously for not less than two years in the municipality where its publication office is situate, and also that the Sun had its publication office in Asbury Park only since January 1946 and was first published in that month. The court held that the Sun did not meet the statutory qualifications. It said:

Clearly, the intention of the legislature was to limit legal advertising only to those newspapers having stability and continuous existence in the municipalities where their publication offices are maintained, and, to qualify for such legal advertising, two years was determined as tbe minimum period within which a newspaper must be in existence in such municipality.

In Bayer the court merely concluded that where all other operations of a newspaper are performed in a municipality, it is published there, even though the actual press work is done elsewhere. This is in accord with the generally accepted view in other jurisdictions that publication is not synonymous with printing. Connerly v. Stephenson, 181 Ark. 833, 28 S. W. 2d 60 (Sup. Ct. 1930); Stanwood v. Carson, 169 Cal. 640, 147 P. 562 (Cal. Sup. Ct. 1915); Ricketts v. Village of Hyde Park, 85 Ill. 110 (Sup. Ct. 1877); State v. Bass, 97 Me. 484, 54 A. 1113 (Sup. Jud. Ct. 1903) ; Amos Brown’s Estate, Inc. v. City of West Seattle, 43 Wash. 26, 85 P. 854 (Sup. Ct. 1906). But see Carter v. Land, 174 Ga. 811, 164 S. E. 205 (Sup. Ct. 1932); Petition of Christiansen, 231 P. 2d 152 (Cal. App. 1951).

The significance of In re Bond Printing Co., Inc. is that when a newspaper bodily moves all its operations from one municipality to another it does not take along its previously acquired status as a newspaper qualified to print official advertising. In that case, as well as in Bayer, the fact of publication in a particular municipality is either assumed or conceded. The terms “publish,” “place of publication” and “publication office” are not defined.

As indicated above, for a newspaper to be eligible for official advertising it must be published within the geographic boundaries of the municipality wherein its publication office is situate.

Ill

It is not in dispute that when ownership of the Review changed hands in June 1969 the newspaper possessed the statutory qualifications for printing the official advertising of a municipality. Until then it is evident that all the activities and operations of the newspaper, with the exception of a branch office in High Bridge, were conducted in White-house Station. In support of its contention that as a result of moving the “principal office” to Clinton the Review was no longer so qualified, plaintiff advances the argument that the location of the editorial and business offices are the statutory criteria for determining the situs and office of publication, and that the statute itself reveals a legislative intent to equate both the place of publication and office of publication with the location of the business and editorial offices. The court is of the view that this concept is too broad.

In one sense a newspaper is published in every place where it is circulated or its contents made known, but it is not in that general sense that the place of publication is used in a statute such as the one involved here. Le Roy v. Jamison, 15 Fed. Cas. No. 8,271, at 380 (D. Cal. 1875); Wolfe County Liquor Dispensary Ass’n v. Ingram, 272 Ky. 38, 113 S. W. 2d 839, 842 (Ct. App. 1938); Village of Tonawanda v. Price, 171 N. Y. 415, 64 N. E. 191 (Ct. App. 1903). A newspaper or magazine is often published at different times in different towns or cities, and in different places in the same city. Perkins v. Keller, 43 Mich. 53, 4 N. W. 559, 561 (Mich. Sup. Ct. 1880). See also McFarlane v. Hulton, [1899] 1 Ch. 884 (Eng). A newspaper may be published at a given place, within the meaning of one statute, and yet not meet the requirements for publication under a different statute. State ex rel. Vickers v. Board of Com’rs, 77 Mont. 316, 250 P. 606, 608 (Sup. Ct. 1926).

When a statute requires, in one form or another, that the publishing be in a specified place, it then becomes necessary to define the place of publication. It has been held elsewhere that a newspaper, in such case, is published at the place where it is first distributed to the public, Madigan v. City of Onalaska, 256 Wis. 398, 41 N. W. 2d 206, 208 (Sup. Ct. 1950); where it is first put into circulation, Addison v. Town of Amite City, 161 So. 364, 367 (La. App. 1935); State ex rel. Vickers v. Board of Com’rs, supra; where it is first issued, that is, given to the public for circulation, Le Roy v. Jamison, supra; where it is first put into circulation, where it is first issued to he delivered or sent, by mail or otherwise, to its subscribers, Polzin v. Rand, McNally & Co., 250 Ill. 561, 95 N. E. 623, 628 (Sup. Ct. 1911); People ex rel. O'Connell v. Read, 256 Ill. 408, 100 N. E. 230 (Sup. Ct. 1912); where it is entered in the post office and where it is first put in circulation, Vick v. Bishop, 40 So. 2d 845, 848 (Ala. Sup. Ct. 1949); Bardwell v. Town of Clinton, 180 So. 148, 150 (La. App. 1928); State v. Briwa, 198 La. 970, 5 So. 2d 304, 308 (Sup. Ct. 1941); State v. Bass, supra, 54A. at 1115. See also Drainage Dist. No. 9 v. Merchants' & Planters' Bank, 2 S. W. 2d 1079, 1081 (Ark. Sup. Ct. 1928); Allen v. Globe-Democrat Publishing Co., 368 S. W. 2d 460, 464 (Mo. Sup. Ct. 1963), State ex rel. Sun Company, Inc., v. Vigil, 74 N. Mex. 766, 398 P. 2d 987, 991 (Sup. Ct. 1965); Matter of Gainsway, 66 Misc. 521, 522, 123 N. Y. S. 966 (Sup. Ct. 1910).

In this State the term “place of publication” was considered in Montesano v. Liberty Warehouse Co, 121 N. J. L. 124 (E. & A. 1938), the question being whether the Jersey Observer, within the meaning of the Uniform Warehouse Receipts Law, was published in Union City. The statute referred to required the advertisement of sale of goods for default in the payment of storage charges to be published once a week for two consecutive weeks in a newspaper published in the place where such sale is to be held. The court noted that the newspaper was printed in Hoboken and “its printing office is at least the main place of publication.” A branch office was maintained in Union City, to which some of the papers were dispatched and from there locally distributed. The court held:

It is conceded that the printing is not done at the branch office, and it is also conceded that a newspaper may be published where it is not printed. It appears, however, that within the meaning of such statutes as that upon which we are now passing the place of publication of a newspaper is tvhere the paper is first put into circulation, where it is first issued to be delivered or sent, by mall or otherwise, to its subscribers. People ex rel. O’Connell v. Read, 256 Id. 408, 100 N. E. 230; State v. Bass 54 Atl. Rep. 1113. To give the word such a meaning as would bring within its application any newspaper circulating in a municipality would quite nullify the obvious intent of the legislation, for it is likely that there is no municipality in which newspapers from some soui’ce do not circulate, and we think that the maintenance of an office for convenience and expedition in effecting local distribution does not suffice to constitute publication. We are left with a very incomplete stipulation of the facts relating to the publishing incidents of the newspaper in question. But upon the reeord placed before us our conclusion is that the attributes of the office maintained in Union City and the characteristics of the distribution and circulation within that municipality were insufficient to constitute the statutory publishing. [Emphasis supplied]

In the ease of Wildwood, etc., Pub. Co. v. Wildwood, 35 N. J. Super. 543 (Law Div. 1955), plaintiff questioned the legality of the publication by the City of Wildwood of legal notices printed in a newspaper published by defendant Cape May County Leader Co. The facts, as found by the court, were that plaintiff, whose main office and printing plant were in Wildwood, published and circulated The Independent Record in that municipality. Defendant Cape May Leader Co. published a weekly newspaper known as The Wildwood Leader and, since 1939, according to the newspaper masthead, had its general office in Wildwood, the same address also appearing in the statement of ownership, management and circulation required by federal statute. The newspaper was printed in the printing shop of the Cape May County Leader Co. in the City of North Wildwood. It was entered at the post office in Wildwood, and letterheads and bill-heads contained the Wildwood address. The managing editor had desks both at the Wildwood address and at the printing plant in North Wildwood. Mail was received either at a Wildwood post office box or at the Wildwood address. Sixty-five percent of the total distribution of the newspaper was in Wildwood. Newspapers were loaded on a truck at the North Wildwood printing plant and were first delivered to newstands and dealers in Wildwood, after which the balance of the newspapers was issued to dealers in North Wildwood. Mailing of the newspaper was at the Wildwood post office. After holding that both papers were circulated in Wildwood and that plaintiff’s paper was published and circulated in that municipality, the court ruled that the defendant’s newspaper was also published there:

The Wildwood Leader is first put into circulation in Wildwood. It is under the control of the publisher until delivered to the newsstands or newsdealers or deposited in the post office in Wildwood for mailing. It is first issued for public consumption in Wildwood, and only after the newspaper has been completely issued in Wildwood is it released to the public in any other municipality. I find, therefore, that not only is The Wildwood Leader circulated in Wildwood, but that its publication office has been there situated for upwards of two years and it has been published there for upwards of two years. It has been entered as second-class matters under the postal laws and regulations of the United States in Wildwood.

The most recent reported case is Schultz v. Board of Education Wanaque, 105 N. J. Super. 165 (App. Div. 1969), in which the issue was whether petitioner’s newspaper was published in the Borough of Wanaque within the meaning of N. J. S. 18A:22-11, which required that publication of the notice of a school budget public hearing and of the statement annesed to the budget be in at least one newspaper published in the district. The court said:

The ‘place of publication of a newspaper is where the paper is first put into circulation, where it is first issued to be delivered or sent, by mail or otherwise, to its subscribers.’ Montesano v. Liberty Warehouse Co., 121 N. J. L. 124, 125 (E. & A. 1938). See also Wildwood, etc. Pub. Co., v. Wildwood, 35 N. J. Super. 543, 547 (Law Div. 1955). A newspaper may be considered published where it is not printed. Montesano, supra, 121 N. J. L. at p. 125.
It is not disputed that a second-class mailing permit has been accorded to the Bulletin by the Wanaque post office since 1950. The paid circulation of the newspaper varies from 450 to 720 issues. Of this amount, 325 are mailed through the Wanaque post office. The balance are sold through three news-stands and carriers within the borough.
Although the paper is printed in Butler and Riverdale, the Bulletin maintains an office (a counter and a desk) in a store in Wanaque. This office is listed on the masthead as the publication office. The office is open between 9:00 a.m. and 5:00 p.m. on weekdays and someone is there during these times for the transaction of business. Mail is received, news items are left, advertising space is ordered and paid for, and bills are paid at those office. Further, some news articles are prepared for printing in the newspaper on these premises.
Under all these circumstances here present we find that the Bulletin is ‘first put into circulation’ in Wanaque. Consequently, we conclude that it is, within the meaning of N. J. S. 18A:22-11, published in that borough. * * *

Prom these cases it seems clear that “place of publication” relates to the dissemination of the newspaper, i. e.j to its issuance, distribution and circulation. “Place of publication,” however, should be distinguished from “publication office,” as the latter term is used in the pertinent statute.

IV

In seeking a definition of “publication office” one should note at the outset that in order to comply with the requirements of N. J. S. A. 35 :1 — 2.2, a newspaper must be entered as second-class matter under the postal laws and regulations of the United States. 39 U. S. C. A. § 4352 provides in pertinent part as follows:

(a) Upon application in the form prescribed by him the Postmaster General shall enter as second class mail, at the Post Office where the office of publication is maintained, any publication which is entitled under sections 4353-4357 of this title to he classified as second class mail. * * * [Emphasis supplied]

Section 4354 provides that generally a mailable periodical publication is entitled to be entered and mailed as second class mail if it “is issued from a known office of publication.”

Section 132.222 of the U. S. Postal Service Manual defines “known office of publication”:

* * * A hnoivn office of publication is a public office where the business of the publication is transacted during the usual business hours. The office must be maintained at the place where the publication has been granted original second class mail privileges. Offices for the trans action of business may be maintained at more than one place, but mailings may be accepted at the second class pound rates only at the post office where original or additional mail privileges have been authorized. [Emphasis supplied]

There seems to be a distinct correlation between that portion of N. J. S. A. 35:1-2.2 requiring publication in the municipality where the publication office is situate and the one dealing with the entry of the newspaper as second-class mail matter. It was noted earlier herein that the requirement for the entry as second-class mail matter was contained in the original statute, and that the term “publication office” was not employed until 1941, when provision was made for continuous publication “in the municipality where its publication office is situate.” L. 1941, c. 409. Since the federal postal laws, as well as the pertinent regulations, employ the term “office of publication,” there is a reasonable inference that the legislative intent at the time of the 1941 amendment was to attribute to the words “publication office” the meaning given to the comparable words “office of publication” in the federal postal laws and regulations.

According to these laws and regulations, there must be a known office of publication, one where the business of the publication is transacted during usual business hours. There is a significant recognition that offices for the transaction of business may be maintained at more than one place, although second-class mailings are accepted only at the post office where original or additional mail privileges have been authorized. Measured by these standards, there is no doubt that the Review has an office of publication in Whitehouse Station within the purview of the federal laws and regulations.

The language of N. J. S. A. 35 :1-2.2 does not warrant a different interpretation or definition of “publication office.” Such office, as distinguished from “place of publication,” is where activities are conducted which lead to the ultimate publishing of the newspaper. There is nothing in the statute which requires editorial or business functions to be wholly performed at the publication office, or which limits a newspaper to one “publication office.” It is true, of course, that the office ought to be more than a nominal one established solely to meet the requirement of the statute. It should be genuinely engaged in the transaction of the newspaper’s business during usual business hours.

Prior to its acquisition by Eecorder, the Review was admittedly qualified to print official municipal advertising. The court finds from the evidence a clear intent on the part of the new owner to continue transacting business at White-house Station office. In the Review’s issue of June 18, 1969 a news item appeared which reported the sale of the newspaper and announced that the Review would “open an office shortly in Clinton while maintaining the office in White-house Station.” The masthead continued to read “White-house Station,” and the statement of ownership, management and circulation filed with the post office identified the location of the “known office of publication” as Whitehouse Station, even though Clinton was named as the headquarters or general business offices. The Whitehouse Station office continued to be staffed, regular business hours were maintained, news and sports items were received there, advertising was solicited and accepted, and circulation was attended to.

One cannot say that the Review has not had stability and continuous existence for a period of at least two years in Eeadington Township, the municipality which includes Whitehouse Station. Cf. In re Bond Printing Co., Inc., supra.

The court concludes, therefore, that where, as here, a newspaper concededly eligible to publish official advertising of a municipality, and having a publication office in that municipality, changes ownership and transfers some of the editorial, advertising and business operations elsewhere, but retains and staffs the original office for the transaction of business, and no change is made with respect to the entry of the newspaper as second-class mail matter in the local post office, the original office does not lose its status as the publication office of the newspaper within the meaning of N. J. S. A. 35 :1-2.2.

The Whitehouse Station office of the Review is, therefor, its “publication office” within the meaning of that statute.

Y

A final issue remains for consideration. It is whether Readington Township, of which Whitehouse Station is a part, is the municipality wherein the Review has been published continuously for at least two years. The problem is complicated by the statement in Montesano v. Liberty Warehouse Co., supra, that “the place of publication of a newspaper is where the paper is first put into circulation, where it is first issued to be delivered or sent, by mail or otherwise, to its subscribers.” See also, Wildwood, etc., Pub. Co. v. Wildwood, supra, and Schultz v. Board of Education, Wanaque, supra. The substance of this language, though varied in form, is found in numerous cases in other jurisdictions.

Prom the evidence presented in this case it appears that news items and advertising matter are received and edited mainly at the Review offices in Whitehouse Station and Clinton, and the copy is then sent or taken to the printing plant in Stirling (Bernardsville prior to August, 1970) during the week preceding the day of publication. The physical distribution of each issue is made in substantially the following manner: Every Tuesday night, between 8 and 9 p.m., a delivery truck is dispatched from Whitehouse Station to the printing plant, where the copies, bundled or bagged, and labeled according to destination, are loaded onto the truck, which then proceeds along a regular route in a generally counterclockwise direction. Copies of the newspaper are first dropped off at Oldwick, in the northeast corner of Hunterdon County, and mailings and deliveries are then made at post offices and other locations in a number of communities, including, in order, Califon, High Bridge, Glen Gardner, Hampton, Clinton, Annandale, Lebanon, White-house, Whitehouse Station, Elemington and Readington. Mailings at other post offices are by arrangement with the postmaster at Whitehouse Station.

According to circulation figures for the month of January 1970, out of a total issue of about 2500 copies, 582 were distributed at Whitehouse Station, 364 at Elemington, 285 at Clinton, and 276 at High Bridge. Other communities received relatively few copies. During the month of August 1971, 737 copies were distributed in Whitehouse Station and 887 in Clinton. The figures for most of the other places remained virtually unchanged.

The language of Montesano, if interpreted and applied literally, might suggest that the Review is first published in Oldwick, since that is where the first delivery is made, or, if Whitehouse Station is to qualify as the place of publication, that the entire issue of the Review must be brought back to that location for initial distribution by mail or otherwise. The court is of the opinion that such interpretation would be manifestly unrealistic and unreasonable when viewed in the context of the legislative intent.

It has been said that “statutes should be read sensibly so as to be consistent with reason and good discretion,” Schierstead v. Brigantine, 29 N. J. 220, 230 (1959); Keenan v. Board of Chosen Freeholders, Essex County, 105 N. J. Super. 271, 279 (Law Div. 1969), and that “interpretations which lead to absurd or unreasonable results are to be avoided.” State v. Gill, 47 N. J. 441, 444 (1966).

N. J. S. A. 35 :1-2.2 and N. J. S. A. 40:53-2, considered together and in conjunction with numerous other statutes requiring the publishing or printing of such official matter as ordinances, resolutions, notices, bids, and the like (an illustrative listing of which is found in Wildwood, etc., Pub. Co. v. Wildwood, supra, 35 N. J. Super. at 544-545), reveal a legislative scheme for the dissemination of official information to members of the public affected thereby. The specific concern, of N. J. S. A. 35 :1-2.2 is that only newspapers having stability and continuity of existence in the municipality where the publication office is maintained should be qualified for the publishing of official advertising. In re Bond Printing Co., Inc. supra. N. J. S. A. 40:53 — 2, which provides for the publication of official notices in "at least one newspaper published and circulating in the municipality,” if there be such newspaper, is designed to ensure wide and prompt dissemination of official matter to the inhabitants of the community. The two statutes complement each other.

There is no doubt in the court’s mind that the Review is an established weekly newspaper that has wide circulation throughout Readington Township. A substantial part of each issue has always been distributed in that municipality or mailed from the Whitehouse Station Post Office. Until ownership of the newspaper was changed, practically all of the operations, including printing, mailing and other distribution, took place in or from Whitehouse Station, so that the problem now before the court did not exist.

• The court does not consider it persuasive or controlling that physical delivery of the Review is now first made elsewhere than at Whitehouse Station. It is clear that the delivery procedure in effect since the transfer of ownership is designed solely for convenience and expedition in effecting local distribution, and is not intended to make any community other than Readington Township the place of publication within the meaning of N. J. S. A. 35 :1-2.2. A like result was reached in Montesano, in which the maintenance of a branch office in another municipality to facilitate the local distribution of a newspaper was held not to constitute a publication of the newspaper in that municipality.

Actually, the Review is delivered to the distribution and mailing points the night before the day of issue, so that, in a sense, there is a simultaneous issuance of the newspaper at all locations.

In the ease of Hinchman v. Barns, 21 Mich. 556, 559-560 (Sup. Ct. 1870), the court cautioned against inquiring narrowly into the precise spot of first issue of a newspaper, and held that each of the Detroit papers involved was published, so far as practicable, in every part of the same city at the sametime, and it was immaterial that the office of one of the papers was in the second ward of the city and not in the senatorial district in which the particular notice was required by statute to be published. The court said:

Statutes, upon which the public are to act, do not purposely lay traps of this character, and a construction that will have this effect is not to be adopted unless compelled. If it should be adopted, the question of the validity of a notice in some cases might require the courts to inquire, when a fire or other accident in one establishment required the proprietors to resort to the office and employ the agencies of a neighboring establishment to publish an issue, whether the office supplying the accommodation was within the same ward or not, so that the place of publication could be considered the same. We are clearly of opinion that no such inquiries are requisite; that within the meaning of this statute a city, village or township in which a paper is issued is its place of publication, — one part of it just as much as another, and that the statute does not design to take notice of inferior subdivisions, or to inquire at all into the circumstance of whether the proprietors printed their own paper or hired another to do so, or whether they made distribution through their own agents, or by selling their issues, or to regard at all so unimportant a circumstance as whether the office of the publishers is on one side of a street in ward One, or on the other side of the same street in ward Two, when in each case the manner of publication would be the same, the paper would reach the same persons, give the same notice of the matters it contained, and accomplish the same purposes.

On the facts here present it would be unreasonable to hold that the Review is not published in Readington Township merely because each issue of the newspaper is not transported back to Whitehouse Station from the printing plant before deliveries are made elsewhere. The term “publish” should not be given so restrictive an application. A sensible construction of N. J. S. A. 35 :1-2.2 leads to the conclusion that the Review is published in Readington Township.

YI

By reason of the foregoing, the court concludes that the Review is qaulified for the publication of official advertising in accordance with the provisions of N. J. S. A. 35 :1-2.2. Judgment will be entered accordingly.


source: Caselaw Access Project

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

license: Public Domain

text:
    JOHN J. O’CONNOR, PLAINTIFF, v. CITY OF UNION CITY, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY; JAMES E. LAGOMARSINO, DIRECTOR OF DEPARTMENT OF REVENUE AND FINANCE; HARRISON C. HULTMAN, COMPTROLLER AND SUPERVISOR OF ACCOUNTS; AND LIBERO D. MAROTTA, DEFENDANTS.
    Superior Court of New Jersey Law Division
    Decided December 6, 1971.

      Mr. George J. Kaplan attorney for plaintiff.

      Mr. Victor P. Mullica attorney for defendants City of Union City, James E. Lagomarsino and Harrison C. Hultman.

      Mr. Richard J. Plaza attorney for defendant Libero D. Marotta.
   Larner, A. J. S. C.

This is an action in lieu of prerogative writs brought by plaintiff as a citizen and taxpayer of the City of Union City challenging the validity of a resolution adopted by the board of commissioners wherein they designated Libero D. Marotta as “Special Counsel to the City of Union City for all matters pertaining to bond sales.” The matter came before the court on the return day of an order to show cause why the resolution should not be set aside as contrary to law and upon the application for preliminary restraints pending final hearing.

During the argument on the return date it became apparent that there are two issues to be determined in the litigation: (1) the validity of the resolution and the accompanying appointment of Marotta as special bond counsel, and (2) the reasonableness and propriety of the bill submitted by him in connection with the issuance of school bonds on June 1, 1971. Issue (1) is a legal one which can be determined in a summary manner at this time, as attested to by the stipulation of counsel. Issue (2) is a factual one requiring a plenary hearing.

It is plaintiff’s contention that the appointment of Marotta by the board of commissioners in the manner expressed in the resolution creates a “position” 'which can only be brought into valid existence by the adoption of an ordinance with all its legal formalities and not by a mere resolution. Defendants, to the contrary, assert that the designation of Marotta as bond counsel does not create an “office” or “position” but merely names him as an employee with the result that the resolution suffices for validity.

It is well settled that a municipal “office” or “position,” if not expressly provided for by statute, can be created only by ordinance. N. J. S. A. 40:48-1; Jersey City v. Department of Civil Service, 7 N. J. 509, 524 (1951); Handlon v. Belleville, 4 N. J. 99, 108 (1950); Wagner v. Lodi, 56 N. J. Super. 204, 206 (App. Div. 1959); Orange v. Goldberg, 137 N. J. L. 73, 75-76 (Sup. Ct. 1948); Serritella v. Water Commission, Garfield, 128 N. J. L. 259, 263 (Sup. Ct. 1942); Toomey v. McCaffrey, 116 N. J. L. 364, 366 (Sup. Ct. 1936).

The underlying rationale for this requirement is that the creation of a new office or position, involving as it does an additional financial burden for the public, should be preceded by the public notice and deliberation attendant upon the passage of an ordinance. See Kovalycsik v. Garfield, 58 N. J. Super. 229, 234 (App. Div. 1959); Orange v. Goldberg, supra; Davaillon v. Elizabeth, 121 N. J. L. 380, 381 (Sup. Ct. 1938).

Courts in the past have drawn distinctions in definition and consequences between an “office,” a “position” and an “employment.” Generally, it has been held that an “office” involves employment which is governmental in character and duties which are certain and permanent; that a “position” is analogous to an office in that the duties are also permanent and certain, but differs therefrom in that the duties may be nongovernmental and not established by law; that “employment” differs from both an office and position in that the duties are neither certain, permanent nor governmental. See Wilentz ex rel. Golat v. Stanger, 129 N. J. L. 606, 614-615 (E. & A. 1943); Newark v. Department of Civil Service, 68 N. J. Super. 416, 429 (App. Div. 1961); Kovalycsik v. Garfield, supra 58 N. J. Super. at 236; Board, of Chosen Freeholders of Hudson County v. Brenner, 25 N. J. Super. 557, 562-564 (App. Div. 1953); Fredericks v. Board of Health, 82 N. J. L. 200, 201-202 (Sup. Ct. 1912). The cases have concluded that although the creation of an “office” or “position” requires an ordinance, a mere “employment” may be created by resolution.

In this case the governing body by its resolution sought to invest Marotta with the right to represent the municipality-in all public bond matters in perpetuity or until revoked by a subsequent governing body, without specifying the term of his incumbency and without specifying the compensation to be paid to him. In effect, it sought to create an appointment which is hybrid in nature and which does not necessarily fit into the cubbyhole designations of “office,” “position” or “employment.”

On mature analysis, there should be no need for exact classification within the dichotomy dictated by the cited cases since rigid classification is of little usefulness in deciding the issue at bar. See Glasser, “A New Jersey Municipal Law Mystery: What Is a ‘Public Office,'?” 6 Rutgers L. Rev. 503 (1952). It is clear that the appointment herein names Marotta as the attorney on a perpetual and continual basis to handle all bond matters in the municipality, although the appointment can be modified or repealed by any subsequent resolution of this governing body or any future governing body.

It is the court’s opinion, however, that despite the absence of a set term and despite the right of termination, the appointment with its involvement of continuity and exclusivity is of sufficient importance to the community to fall into the category of those matters which require the deliberate process of an ordinance. As noted in Kovalycsik v. Garfield, supra, 58 N. J. Super. at 237: “[T]he trend of the cases makes clear that the policy of the Home Eule Act, effectuated by requiring positions to be created by ordinance, is best served by a strict interpretation of the employee category.”

Applying this strict construction policy, it would follow that the nature of this appointment should require for validity the adoption of an ordinance rather than a resolution.

It should be noted, of course, that this conclusion does not detract from the right of a municipality to retain special counsel for a particular piece of litigation or legal work through a letter or resolution or other form without the necessity of adoption of an ordinance. However, where the appointment is not limited to a particular case or a particular matter but purports to retain an individual as counsel in perpetuity for all matters pertaining to bonds, the situation is one which requires the ordinance procedure.

In light of the foregoing, the court will enter judgment in favor of plaintiff declaring the resolution and the appointment of Marotta as bond counsel in general, void and of no effect. However, it is apparent from the proofs that Marotta did perform certain services in connection with a particular bond issue involving the school system of Union City. Eetention for such an individual transaction would be perfectly proper sans ordinance. He would, therefore, be entitled to the reasonable value of his services based upon the proofs as to the value of those services to the municipality.

Since the foregoing determination involving the validity of the appointment of defendant as bond counsel, the court held a plenary hearing on the issue of the reasonable value of the legal services rendered by defendant. In passing, it should be noted that Union City is generally represented by its corporation counsel, Cyril J. McCauley, whose tenure in office was sustained by this court in litigation wherein the newly elected group of commissioners sought to appoint Marotta to the position held by McCauley. Lynch and McCauley v. Union City, Dockets L-37629-69 and L-37625-69 (October 5, 1970), aff’d App. Div. Dockets A-310-70 and A-311-70 (November 4, 1971). Having been frustrated in their effort to reward Marotta by the abortive appointment as corporation counsel, the members of the governing body adopted the resolution discussed supra appointing him as “Special Counsel * * * for all matters pertaining to bond sales,” thereby setting the scene for shunting the salaried corporation counsel and the within litigation relating to Marotta.

The evidence reveals that on March 4, 1971 the governing body of Union City adopted an ordinance authorizing a bond issue for capital projects for two schools in the district in the amount of $2,100,000. In harmony with established practices and the demands of the financial community, New York bond counsel, Hawkins, Delafield & Wood, was retained to perform the requisite legal services and add its imprimatur on the legality of the bonds as protection for the underwriters and the purchasing public. This firm performed its services and rendered its final approving opinion on July 22, 1971. On August 24-, 1971 the firm submitted a voucher to the city in the sum of $3,250 for services rendered, plus disbursements of $16.77, for a total of $3,266.77. Thereafter, on September 1, 1971 Marotta submitted his voucher to the city incorporating the services rendered by the Hawkins firm with the services allegedly rendered by him, and requesting a total of $15,540. By this voucher, Marotta therefore sought a net fee for himself amounting to $12,273.23.

Although the resolution of May 20, 1971 appointing Marotta recites: the fact is that Marotta has had no prior experience in municipal bond matters. The retention in connection with the bond issue was his first introduction to the legal intricacies involved.

WHEREAS, the City of Union City is desirous of engaging an attorney experienced in bonding matters; and
WHEREAS, Libero D. Marotta has the requisite experience to represent the City of Union City in matters pertaining to bond sales * * *,

Marotta testified that he is a sole practitioner operating an office with one secretarial employee. His services subsequent to his appointment on May 20, 1971 involved in great measure such research as was necessary to educate himself in the area of New Jersey law relating to a bond issue and the statutory requisites and procedures for such a municipal undertaking. In addition, he also reviewed the bond ordinance and the resolution adopted by the board of education. He had several telephone conversations with a member of the Hawkins firm and also with a member of the underwriting firm of Matthews & Wright. He further testified as to some correspondence with New York counsel and of his review of the opinion rendered by that firm. Furthermore, he prepared a nonlitigation certificate and submitted the same to New York counsel.

However, the testimony is clear that he submitted no written opinions or reports, that he never conferred personally with any members of the New York law firm, and that he did not attend the closing which took place in New York. Ho file or writings of any kind were offered in evidence to support the nature or extent of the services allegedly rendered.

Marotta kept no record of the time expended on this project, although he ventured an estimate of having devoted 60-70 hours in the matter. The court is satisfied that this estimate represents an exaggerated guess, having no relationship to reality.

The court concludes from the evidence and the reasonable inferences therefrom that the time and effort expended by Marotta were minimal and, in many respects, duplicative of the services rendered by New York bond counsel.

Marotta, nevertheless, justifies the reasonableness of his fee on the basis that it is in accordance with established standards of the profession wherein legal fees in connection with municipal bonds are keyed to the amount of monies realized by the municipality from the bond issue. And, it is manifest that this standard was the sole guideline utilized by him in computing the fee, the total charge of $15,540 representing ^ of 1% of the total amount of bonds sold.

It is true that the practice upon which Marotta relies has been followed by some municipal attorneys in this State for many years. In fact, several county bar associations that have adopted minimum fee schedules have incorporated fees based on differing percentages of the total amount realized from the bond issue. See 1971 New Jersey Lawyers Diary and Manual 839. If these schedules and practices are applied as the sole test of reasonableness, the charge submitted by Marotta is well within the suggested guidelines.

Despite these self-imposed and self-serving standards, it is the view of this court that the mere existence of such a practice among some of the municipal attorneys should not foreclose a reexamination of its propriety, not only with regard to the particular case before the court, but also with regard to its continued use as a standard of measurement for counsel fees in bond matters. Parenthetically, it should be noted that this practice has been the subject of criticism and consideration by an appropriate committee of the New Jersey Bar Association. See 94 N. J. L. J. 971 (1971). See also Bayou Meto Drainage District v. Chapline, 143 Ark. 446, 220 S. W. 807, 810 (1920).

It is manifest that if the practice of sotting fees for legal services in bond matters is pegged to the amount of the bond issues, the fees underwritten by the taxpaying public of the many municipalities of this State involve very substantial sums of money. And, since the subject matter concerns the public and public moneys, greater vigilance by the courts is warranted than in private contractual fee arrangements between attorney and client.

The services of a local attorney in bond matters are the same regardless of the size of the issue. The quantum of the borrowings is not dependent upon the skill and ability of the attorney or the benefit which the attorney produces for the client. This is quite distinguishable from the contingent fee practice in contract or tort cases where the client pays a fee based mainly upon the extent of benefit produced by the attorney’s efforts and where the attorney shares in the risk of recovery. It may be contended in theory that the size of the bond issue is correlated with the degree of responsibility undertaken by the attorney. However, in the particular context of municipal bond issues, the major, or perhaps total, responsibility is undertaken by the New York law firm which imprints its seal of approval as the guarantee for the purchasing public. Therefore, as to services rendered by bond counsel in that capacity, there may be some justification in the allowance of fees based in some part on the amount involved in the transaction, although such a criterion should play a small part in the determination of reasonableness together with all other accepted guidelines for setting legal fees. In the case of Marotta, however, it is clear that he did not issue any certificate which could involve him in any future responsibility to the bond purchasers for a legal defect in the bonds or underlying documents, and that the amount of the borrowings has m> rational relationship in any way to the value of the services rendered by him as local bond counsel.

It is apparent that the practice adopted by some municipal attorneys in this State of admeasuring fees by the sole criterion of the size of the bond issue foists upon the taxpaying public the payment of exorbitant fees which are based upon an irrelevant and arbitrary standard rather than the normal guidelines for determining the reasonableness of legal fees. Such a practice is improper, legally and ethically, and should be discontinued. In re Bloomer, 37 N. J. Super. 85 (App. Div. 1955); In re Bloomer, 43 N. J. Super. 414 (App. Div. 1957), cert. den. 33 N. J. 667 (1957); Code of Professional Responsibility DR 2-106(A).

Whether a municipal attorney is entitled to a fee for his services in connection with municipal bond matters depends on the nature of his retainer with the municipality. If the salary allotted to him is intended to encompass all legal services, his efforts in correlation with the services of New York bond counsel should produce no additional compensation. If, however, his retention as corporate counsel is limited in nature at a minimal annual salary and not intended to include bond services, his compensation should be measured by the amount of time and effort expended and the value of the service to the municipality and not upon the quantum of the bond issue.

In this case Marotta was not the corporation counsel of the city, so that he is entitled to some compensation. Upon a review of all of the evidence and a consideration of the actual services rendered by him, the value of those services to the community and the time expended in connection therewith, it is crystal clear that the requested fee in excess of $12,000 is outrageous.

It is the court’s conclusion that a reasonable fee by way of compensation to Marotta is $1,000, exclusive of the charges of Hawkins, Delafield & Wood.

Judgment will be entered accordingly.


text:
    JOHN J. O’CONNOR, ROBERT C. BOTTI AND JOSEPH CAPUANO, PLAINTIFFS, v. HARRY M. CALANDRILLO, JR., PAUL J. LOMBARDO, JAMES E. LAGOMARSINO, FRANK X. CLARK, AND WILLIAM J. MEEHAN, JOINTLY, SEVERALLY AND AS MEMBERS OF THE BOARD OF COMMISSIONERS OF THE CITY OF UNION CITY IN THE COUNTY OF HUDSON, LAWRENCE P. PARACHINI AND HARRISON C. HULTMAN, DEFENDANTS.
    Superior Court of New Jersey Law Division
    Decided December 20, 1971.

      Mr. George J. Kaplan, attorney for plaintiffs.

      Mr. Victor P. Mullica, attorney for defendants.
   Larner, A. J. S. C.

The City of Union City is governed by a board of commissioners pursuant to the form of government authorized by the Walsh Act, N. J. S. A. 40:70 — 1 et seq. Plaintiffs, as residents and taxpayers of the city, brought this action in lieu of prerogative writs attacking the right of three of the commissioners to hold other paid positions in the municipality. A further charge relating to the validity of positions held by two other officials, Frank X. Clark and Lawrence P. Parachini, has already been determined by this court in an oral opinion. Consequently, this opinion will deal only with the issues involving defendants Harry M. Calandrillo, Jr., Paul J. Lombardo and James E. Lagomarsino.

Since the facts are not in dispute, counsel stipulated on the return date of the order to show cause that the court consider the matter in the procedural status of cross-motions for summary judgment.

Calandrillo, Lombardo, Lagomarsino, Clark and Meehan were elected as commissioners of. Union City on May 12, 1970 and assumed their offices on May 19, 1970. At the organization meeting, pursuant to the applicable statute, the commissioners were assigned to head the five separate departments as follows:

William J. Meehan — Public Works

Harry M. Calandrillo, Jr. — Public Safety

Paul J. Lombardo — Revenue and Finance

James E. Lagomarsino ■ — • Public Affairs

Frank X. Clark — Parks and Public Property

Each of the commissioners receive a salary of $7500 a year and William J. Meehan receives an additional $500 as mayor.

On or about July 17, 1970 Lagomarsino, as Director of Public Affairs, appointed his fellow commissioner, Calandrillo, to a position designated as Advisor of Veterans’ Affairs at an annual salary of $3900. Prior thereto, Calandrillo had been on leave of absence from his former position as a municipal police officer.

On January 7, 1971 there was a reshuffling of the departments among the commissioners, with the following result:

William J. Meehan — Public Affairs

Harry M. Calandrillo, Jr. — Public Works

Paul J. Lombardo — Public Safety

James E. Lagomarsino — Revenue and Finance

Frank X. Clark — Parks and Public Property

Shortly thereafter, on January 16, 1971, a series of events took place which gave rise to this litigation. (1) Calandrillo gave up his job as Advisor of Veterans’ Affairs, terminated his leave of absence with the police department, and was assigned to the Detective Bureau by the new Director of Public Safety, Lombardo, at an annual salary of $11,124. Subsequently, on June 9, 1971, he was promoted by his superior to the position of acting sergeant and has been serving in the dual posts of police sergeant and city commissioner to this date. (2) Lombardo, in turn, was named as secretary of the Board of Assessors at an annual salary of $7500 by his fellow commissioner Lagomarsino, in his capacity as Director of Revenue and Finance, and has been serving in the dual posts of secretary to the Board of Assessors and commissioner to this date. (3) Lagomarsino, in turn, was named as Advisor of Veterans’ Affairs at an annual salary of $3900 by his fellow commissioner Meehan, in his capacity as Director of Public Affairs, and has been serving in the dual posts of Advisor of Veterans’ Affairs and commissioner to this date.

Plaintiffs assert that the appointment of the three commissioners to the additional city posts is illegal because of common law incompatibility and certain statutory prohibitions. As to the common law inhibition, the key issue is whether the posts assumed by the three commissioners are incompatible with their elective offices as members of the governing body, so as to prohibit them from continued holding of the dual offices.

Regardless of the existence of specific statutory prohibitions, the common law doctrine of incompatibility has developed as a matter of public policy in order to insure that there be the appearance as well as the actuality of impartiality and undivided loyalty. Ahto v. Weaver, 39 N. J. 418, 433-434 (1963) (dissenting opinion). Incompatibility exists “where in the established governmental scheme one office is subordinate to another, or subject to its supervision or control, or the duties clash, inviting the incumbent to prefer one obligation to another.” Reilly v. Ozzard, 33 N. J. 529, 543 (1960); McDonough v. Roach, 35 N. J. 153, 155-157 (1961). See also, Ahto v. Weaver, 39 N. J. 418, 422-424 (1963); Jones v. MacDonald, 33 N. J. 132, 136-138 (1960); State ex rel. Clawson v. Thompson, 20 N. J. L. 689, 690 (Sup. Ct. 1846). If the duties of the two offices are such that when “placed in one person they might dis-serve the public interests, or if the respective offices might or will conflict even on rare occasions, it is sufficient to declare them legally incompatible.” De Feo v. Smith, 17 N. J. 183, 189 (1955).

In De Feo the offices in question held by defendant were as elected freeholder of Atlantic County and as appointed member of the Atlantic County Board of Taxation. The court concluded that the offices were incompatible, pointing out:

The county board of taxation is under the control of the board of chosen freeholders in all matters concerning its actual physical make-up and existence. It sets the salaries of the secretary of the tax board, establishes the number of employees and their emoluments, and determines the board’s budgetary allotments each year. In effect, the board of chosen freeholders controls the purse strings, determines the expenditures and has the right and power to establish and fix the size of the office of the tax board, the number of administrative assistants and the operating overhead.
The defendant as a member of the tax board would in effect be requisitioning from himself as a freeholder an allotment of public funds for the transaction of public business. The performance of one of his offices would automatically enrich the coffers of the other, thereby eliminating an element of independent control of the public moneys to be expended. These two capacities may well conflict in the public interest and are difficult of reconciliation. Not only might the dual office-holding hinder the defendant’s own freedom of discretion, but his conclusions could conceivably also unconsciously impair and influence the free choice of the remaining members of both boards. [17 N. J. at 189]

As members of the board of commissioners, Calandrillo, Lombardo and Lagomarsino, with their colleagues, Meehan and Clark, have full control over the affairs of the municipality in all phases of government. N. J. S. A. 40 :72-2. Under this broad grant of powers they may determine the powers and duties of each department and its employees. This includes the power to define the qualifications, functions and duties of all officers and employees, the conditions and terms of their employment and the salaries to be paid to them. N. J. S. A. 40:72-5; N. J. S. A. 40:73-6.

It is thus conceivable that Lagomarsino, as commissioner, would be called upon to determine whether he, as Advisor of Veterans’ Affairs, should receive a higher salary; whether the qualifications of his office should be modified; whether a term of office should be established; whether his duties should be circumscribed or increased; ox whether the positions should be abolished altogether.

The same potential oí conflict of interest exists with respect to Calandrillo, as commissioner and police sergeant, as well as Lombardo, as commissioner and secretary of the Board of Assessors.

As observed by our Supreme Court in Jones v. MacDonald, supra:

It is no answer to say that the conflict in duties outlined above may never in fact arise. * * * Nor is it an answer to say that if a conflict should arise, the incumbent may omit to perform one of the incompatible roles. The doctrine was designed to avoid the necessity for that choice. [33 N. J. at 138]

Although the particular offices or positions to which those three commissioners were assigned are not incompatible with their offices as commissioners in the sense of function, nevertheless they are clearly incompatible within the broad sense of the evil sought to he avoided by the salutary rule invoked in the interest of the public.

Each of the additional posts assumed by these commissioners is subordinate to the board of commissioners of which they are members, and each of them is subject to the control of that hoard. This control is real and meaningful, for it affects the very existence of their positions and the emoluments received by them. Eor them to continue in these dual positions would deprive the citizens of the municipality of the independent judgment of these elected officials whenever an issue might arise affecting their respective jobs. And this public deprivation is not only measured by the absence of independence of judgment of the three individuals involved but also by their influence upon each other and their other colleagues on the board — an influence which has already manifested itself in the manner in which the appointments came into being in January 1971. See De Feo v. Smith, supra, 17 N. J. at 189.

It is therefore determined on the basis of the applicable common law doctrine that the dual posts held by Calandrillo, Lombardo and Lagomarsino are legally incompatible and that they cannot continue to hold the same.

In view of this conclusion it becomes unnecessary to consider whether certain provisions of the Consolidation Act, L. 1908, c. 179, §§ 6 and 100, prohibiting dual office holding, are still viable in the government of Union City, or whether N. J. S. A. 40:46-5 prevents the dual office holding herein. See also N. J. S. A. 40A:9-4(4)a and its current effect on the dual office provision of N. J. S. A. 40:46-5, in light of the schedule of repealers in N. J. S. A. 40A:9-175.

At this point it is the court’s duty to delineate the method of implementation of the judgment that Calandrillo, Lombardo and Lagomarsino cannot continue to hold the dual posts. The generally accepted common law rule dictates that by the acceptance of an incompatible office, the office holder has made a binding election which ipso facto vacates the first office. De Feo v. Smith, supra, at 190; Kobylarz v. Mercer, 130 N. J. L. 44, 46 (E. & A. 1942); Tonkin v. Kenworthy, 112 N. J. L. 274, 280 (Sup. Ct. 1933); Wescott, Attorney-General v. Scull, 87 N. J. L. 410 (Sup. Ct. 1915). In the context of this case the strict application of this rule would mean that the three defendants would be derived of their offices as commissioners and that said offices would be declared vacant.

This rule, however, should not be applied inalterably in all fact situations. McDonough v. Roach, supra, 35 N. J. at 159. The public interest and welfare should be the paramount and controlling factor. To declare the office of commissioner vacant in each instance would frustrate the public will expressed in the elective process and compel the incumbent to accept the lesser post to which he was appointed, without the approval of the voters of the community. If the three commission offices were declared vacant, the absence of an available quorum on the board would involve substantial confusion and expense brought about by the requisite interim appointment of commissioners by the Governor and a special eleciion thereafter. See N. J. S. A. 40:72-15.1 and 15.2. Such a result would appear io- be an inappropriate subordination of reason to rule.

In McDonough the Supreme Court solved this problem by granting to defendant the option to elect which office he sought to retain. See also, McCue v. Antisell, 105 N. J. Super. 128, 131 (App. Div. 1969); Woodhull v. Manaban, 85 N. J. Super. 157, 168 (App. Div. 1964) ; Commonwealth ex rel. Crow v. Smith, 343 Pa. 446, 23 A. 2d 440, 442, n. 3 (Sup. Ct. 1942); Commonwealth ex rel. Ryan v. Haeseler, 161 Pa. 92, 28 A. 1014 (Sup. Ct. 1894).

In the particular circumstances herein the court is of the opinion that neither the mandatory election of the later position nor the optional election of either position should be invoked. It is as reasonable and logical to conclude that the later appointment is void because of its incompatibility with the first office and that as a consequence the later position should be declared vacant.

It will therefore be ordered that (1) the position of secretary of the Board of Assessors held by Paul J. Lombardo be declared vacant, (2) that the position of Advisor of Veterans5 Affairs held by James B. Lagomarsino be declared vacant, and (3) that Harry M. Calandrillo, Jr. be returned to his former status as a member of the police force on leave of absence without pay, subject to applicable laws and Civil Service regulations.

In addition to the attack upon defendants5 right to hold the dual offices, plaintiff also seeks a judgment directing them to refund to the city the salary paid to them in connection with their appointive positions. Defendants, in reply, assert that they received compensation while acting at least as defacto officers and, therefore, should not be compelled to refund the moneys to the city treasury. In support of this position defendants rely upon the opinion of the Appellate Division in Jersey City v. Dept. of Civil Service, 57 N. J. Super. 13 (1959).

In that opininon Judge Goldmann presented a comprehensive review of the law pertaining to de facto officers and concluded that in New Jersey a de facto holder of a position who actually rendered services in good faith should receive the compensation of the office. See also, Erwin v. Jersey City, 60 N. J. L. 141 (E. & A. 1897). The doctrine has in fact been codified by legislation in this State, which reaffirms the policy of payment of compensation to a person who holds an office or position de facto. N. J. S. A. 40:11-7.

It is significant, however, that every judicial expression espousing the policy of payment of compensation to a de facto holder of a position contains the caveat that the service must have been rendered in good faith and without dishonesty or fraud. It is also significant that the doctrine, as it applies to the compensation rights of the holder of the de facto office (as distinguished from the rights of the innocent members of the public in dealing with the de facto officer), has not been involved in any cases in this State dealing with dual office holding.

In De Fazio v. Mayor, etc., Hoboken, 12 N. J. Super. 515 (1961), the Appellate Division denied recovery for services performed by plaintiff in the position of assistant city attorney which was created by an ordinance declared to be invalid. In discussing the application of the de facto doctrine, the court referred to the authorities in other jurisdictions, noting:

The second largest class includes those cases in which the de facto officer in good faith and with a reasonable and conscientious belief of his authority performs under color of title the duties of the office.
Fundamentally, it must be realized that the doctrine pertaining to the activities of de facto officers had its origin in the policy of the public interest and protection. Not unlike many other beneficial doctrines of the law and indeed advantageous legislation, it is not permitted to be utilized for mischievous purposes, [at 519-520]

In defining “good faith” the court borrowed from Bouvier’s Law Dictionary, concluding:

Good faith has been defined to consist of an honest intention to abstain from taking an unconseientious advantage of another, even through the forms or technicalities of law, together with an absence of notice, information or belief of facts which would render the transaction or undertaking mischievous and insidious.

Utilizing the foregoing definition as a polestar, it is manifest that the three commissioners participated in the overall plan of re-assignment of departments and the creation of dual positions for themselves, with full knowledge of the potential infirmity of their action. They assumed that their control of the governing body was the vehicle through which they could provide additional income for themselves on the hopeful chance that the inertia of the public would guarantee the absence of legal attack in the courts. And if litigation ensued, they would at least retain the emoluments of the second position in the meantime.

This mental reservation can be gleaned from defendants’ actions and their administration sometime subsecpient to their appointment to the additional positions. On August 16, 1971 A. E. Mangione, Jr., Director of Classifications of Local Government Service of the Civil Service Department of New Jersey, forwarded letters to Lombardo, Meehan and Lagomarsino relating to the dual positions held by defendants in their respective departments. The letters pointed out that it was the opinion of the Attorney General that the holding of the appointive position in each instance was incompatible with the elective position of commissioner. The letter further gave notice that if the name of each appointee continued to appear on the payroll of the department after September 3, 1971, the wages allotted would be disapproved.

Despite this warning defendants, with the apparent cooperation of their colleagues on the commission and the-disbursing officials, continued to draw their salaries, at least until the date of hearing on November 12, 1971.

The court must therefore conclude that defendants did not act in their respective de facto offices in good faith. A financial reward to them for undertaking this abortive game of chance should not be permitted at the expense of the taxpayers of the municipality. Their actions do not bespeak the good faith required to invoke the rule of fairness and justice which underlies the grant of compensation to a de facto officer. The same rationale is appropriate in construing the parallel statutory provision cited above, N. J. S. A. 40 :11-7, which presupposes the requisite of good faith for its application. See De Fazio, supra, 12 N. J. Super. at 522.

The judgment of the court will therefore include a direction that (1) Calandrillo repay to Union City all moneys received by him as Advisor of Veterans’ Affairs and as a member of the police department while serving as commissioner, (2) Lombardo repay to Union City all moneys received by him as secretary of the Board of Assessors while serving as commissioner, and (3) Lagomarsino repay to Union City all moneys received by him as Advisor of Veterans’ Affairs while serving as commissioner. Counsel should stipulate the amount involved in each instance so that the order may include the dollar amount of the judgment in favor of Union City as against each affected defendant.

       it also appears that he was on the commission when an ordinance was adopted on February 18, 1971 creating the office, formally designated as “Veterans’ Service Officer,” defining his duties and establishing a salary range.


author: Meanor, J. C. C.

text:
    AUBREY D. DIXON, PLAINTIFF, v. MARTIN BOWDEN, DEFENDANT.
    Superior Court of New Jersey Law Division
    Decided December 22, 1971.

      Mr. Sidney A. Brass for plaintiff (Messrs. Brass & Brass, attorneys).

      Mr. Joseph Coult for defendant (Mr. Edward E. Kuebler, attorney).
   Meanor, J. C. C.

(temporarily assigned). An unusual series of calamities that has befallen this plaintiff gives rise to a novel question under the Unsatisfied Claim and Judgment Fund Law, N. J. S. A. 39 :6-61 et seq.

On March 26, 1967 plaintiff, while stopped in his automobile, was struck in the rear by a vehicle operated by defendant. He was not in the course of his employment at the time. Judgment of liability because of this accident has already been entered for plaintiff.

On April 6, 1967, while at work as a chef, plaintiff collapsed. Erom the fall alone, plaintiff sustained some permanent injury. The cause of the fall was either heat exhaustion, which would be exclusively work-related, or brain damage suffered in the automobile accident which has left him with a resultant left hemiplegia. Plaintiff has never contended that this latter condition resulted from anything but the automobile accident.

The results of the fall at work, which would be compensable if caused either by the automobile accident brain injury or by heat exhaustion, George v. Great Eastern Food Products, Inc., 44 N. J. 44 (1965), were the subject of a workmen’s compensation award of 30% of total, or $10,800, plus $2,780.60 in medical expenses. Against this total of $13,580.60 petitioner was assessed a total of $981.50 for counsel fees, medical witness fees, and litigation expenses. Thus, plaintiff netted more than $10,000 from his compensation award for the consequences of the fall at work.

Since plaintiff deemed himself totally and permanently disabled mainly because of (1) a chronic pre-existing peptic ulcer; (2) the consequences of the automobile accident, and (3) the effects of the compensable fall at work, he made application to the so-called Two Percent Fund, N. J. S. A. 34:15-94 et seq. This application was consolidated with his claim petition for the accident of April 6, 1967. The judge of compensation, in addition to entering the award of 30% of total referred to above, found that petitioner was totally and permanently disabled and recommended that plaintiff receive benefits from the Two Percent Fund. The automobile accident injuries were expressly included as an essential pre-existing condition leading to qualification for Two Percent Fund benefits. This recommendation was approved and plaintiff was awarded the difference between his 30% of total and 100% of total, or 315 weeks of compensation at $80 per week totaling $25,200.

It is not necessary here to go into the details of plaintiff's injury claim. Suffice it to say that he asserts that the automobile accident led to brain injury which caused his collapse at work; a serious visual impairment and left hemiplegia. The court has examined various medical reports and plaintiff unquestionably has respectable medical opinion to support his views. Defendant contests the assertions that the fall at work and the left hemiplegia are results of the automobile accident, but concedes that plaintiff in any event would be entitled to more than nominal damages.

Defendant, who is represented through the Unsatisfied Claim and Judgment Fund, is impecunious and has absconded. The question arises whether under the above circumstances plaintiff would be entitled to collect from the Unsatisfied Claim and Judgment Fund the proceeds, up to Fund limits, of the judgment he would receive after trial on damages. Plaintiff has no desire to go through an expensive trial only to receive an uncollectible judgment, and is willing to forego the case if he cannot recover from the Fund.

The Unsatisfied Claim and Judgment Fund Law is designed to pay up to limits of $10,000/$20,000 and $5,000 judgments caused by the tortious actions of uninsured automobile operators. This Fund is financed by a surcharge collected from those who register uninsured automobiles. The theory of the Two Percent Fund is to provide benefits according to the workmen’s compensation schedules for those who are rendered totally and permanently disabled because of their last compensable accident combined with a pre-existing nonwork-related condition. It must be recognized that these brief, general descriptions of the two Funds are not completely accurate. They will suffice for purposes of this opinion which does not call for a detailed analysis and history of either Fund. It is pertinent to point out, however, that the Two Percent Fund is made up of mandatory contributions by workmen’s compensation insurers. N. J. S. A. 39:15-94. Both Funds are administered by the State.

To borrow a phrase from the late Justice Frankfurter, “(T)his is a horse soon curried.”

The issue arises because the Unsatisfied Claim and Judgment Fund Law provides that before payment can be made the injured plaintiff must show that he “is not a person covered with respect to such injury * * * by any workmen’s compensation law. * * *.” N. J. S. A. 39:6-70(a). This statute is quite clear that where benefits are payable under a workmen’s compensation law and an uninsured motorist is liable in tort for the same injury, no collection on the tort judgment may be had from the Unsatisfied Claim and Judgment Fund. See Shebell v. Strelecki, 104 N. J. Super. 139 (App. Div. 1969).

That the Two Percent Fund is a workmen’s compensation law is settled by Bello v. Comm’r of Dept. of Labor and Industry, 56 N. J. 41 (1970). All of the injuries for which plaintiff now seeks recovery have been compensated either by his workmen’s compensation recovery against his employer or by his judgment against the Two Percent Fund. Thus, all of these injuries are covered by a “workmen’s compensation law,” and under N. J. S. A. 39:6-70(a) none of them can be the subject of a judgment which the Unsatisfied Claim and Judgment Fund is obligated to pay.

It must be remembered that the Unsatisfied Claim and Judgment Fund was not designed to make every claimant completely whole. It was created for the purpose of providing a source of limited recovery for those injured by the torts of uninsured motorists. N. J. S. A. 39:6-70 (a) emits an unequivocal intention to forego payment from this fund on account of injuries which are also the subject of a workmen’s compensation recovery. The statute does not say that workmen’s compensation rights will bar collection only if the Workmen’s Compensation Law comes into play at the time of the tort of the uninsured motorist. The bar is against collection for an injury which is also the subject of a workmen’s compensation award. This situation exists here. N. J. S. A. 39:6-70 (a) will prevent collection from the Unsatisfied Claim and Judgment Fund of any award of damages plaintiff receives.

For the foregoing reasons, the complaint will be dismissed with prejudice, but without costs.

         Olberding v. Illinois Cent. R. Co., 346 U. S. 338, 340, 74 S. Ct. 83, 98 L. Ed. 39 (1953).


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

text:
    IN THE MATTER OF THE APPLICATION FOR WRIT OF HABEAS CORPUS BY D. D.
    Superior Court of New Jersey Appellate Division
    Argued November 9, 1971
    Decided December 23, 1971.

      Before Judges Kilkenny, Labbecque and Lane.

      Mr. Michael S. Bolear, Legal Aid Society of Mercer County, argued the cause for appellant.

      Mr. Joseph T. Maloney, Deputy Attorney General, argued the cause for respondent, Department of Institutions and Agencies (Mr. George F. Kugler, Jr., Attorney General of New Jersey, attorney; Mr. Stephen Shillman, Assistant Attorney General, of counsel; Messrs. Alfred L. Nardelli and Joseph T. Maloney, Deputy Attorneys General, on the brief).

      Mr. Arthur Meisel filed a brief amicus curiae for the American Civil Liberties Union of New Jersey.
   The opinion of the court was delivered by

Kilkenny, P. J. A. D. D. D.

(hereinafter “Debbie”), a 17-year-old girl born on July 31, 1954, is now and since her last transfer thereto on April 31, 1971 has been confined as a mental patient in the female wing of the Vroom Building, a maximum security unit of the State Hospital for mental patients, now known as Trenton Psychiatric Hospital.

Debbie wrote a letter to Judge Kingfield stating therein:

Dear Sir:

I am a 16 year old girl and I am being held in the Vroom Building. I do not want to stay here.

Please give me a lawyer and a hearing to get out of here.

(D.D.)

The letter was witnessed by an assistant social work supervisor and an assistant supervisor of security.

Judge Kingfield treated the letter as a petition for a writ of habeas corpus and referred the matter to the Legal Aid Society of Mercer County, ■which designated an attorney to represent Debbie. Judge Kingfield personally conducted a hearing at the Yroom Building. Debbie, as well as her attorney, attended the hearing. There was medical and other testimony on behalf of Debbie and on behalf of the State.

Having considered the testimony of Dr. Edward Folmer and Dr. Hubert M. Hoffman of the Medical Staff of the Trenton Psychiatric Hospital, the only medical witnesses, from which it appeared that Debbie is incompetent and, if released, would be dangerous to herself or to others or to the property of others; and having been satisfied that Debbie is in need of further hospitalization for her mental condition, Judge Kingfield entered an order on June 21, 1971 denying Debbie’s petition for her release and directing that she be “confined at the Trenton Psychiatric Hospital until restored to reason and discharged therefrom according to law.”

The present appeal is by Debbie from the judgment of June 21, 1971. The following contentions are made:

I. The statute under which Debbie was committed to Trenton Psychiatric Hospital at the request of the Bureau of Children’s Services is invalid under the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution.
II. Persons committed to a State Mental Hospital in New Jersey are constitutionally and statutorily entitled to receive adequate and effective treatment designed to cure or improve their condition.
III. The transfer of Debbie from East Hospital to the Yroom Building and her continued confinement there without a hearing and without a reasoned consideration of less drastic alternatives are unconstitutional as a deprivation of liberty without due process.

The evidence unquestionably supports Judge King-field’s findings and conclusions that Debbie is incompetent, would be dangerous to herself and others if released, and is in need of further hospitalization for her mental condition. Dr. Hoffman, testifying for defendant as a licensed doctor and holding the administrative position of chief of service of the East Hospital, a less confining unit than the maximum security Vroom Building, was familiar with Debbie and had observed her treatment in the East Hospital. Her treatment consisted essentially of chemotherapy. Debbie was transferred by an administrative officer’s order from the East Hospital to the Vroom Building on April 21, 1971 because on that date there was an altercation between Debbie and an attendant. The employees refused to go on their jobs if she was not transferred. Dr. Hoffman stated that Debbie was occasionally “assaultive” and a “fairly-strong” girl requiring “a couple of people to hold her” when she gave them troirble. The doctor felt that the Vroom Building was not a proper place for Debbie, but she should not be returned to the so-called “civil section” because “the employees would walk out immediately.”

Dr. Eolmer testified that he was Debbie’s treating physician and has known her for many years in both the East Hospital and the Vroom Building, to which her last admission was on April 21, 1971 when she struck a woman, caused the woman to be sent to a hospital, and this woman “is now partially disabled.” He stated that Debbie has schizophrenia, suffers from hallucinations, and does not have a passive-aggressive personality. She has been in a mental hospital since the age of eight, being first diagnosed in 1962 as a childhood schizophrenia. There is definite evidence that she is now psychotic and has a borderline I. Q. of 79. The doctor averred that she should remain hospitalized. He recommended 200 milligrams of Thorazine three times a day, to start with.

We conclude at this point that the Vroom Building is not a proper place in which to confine Debbie. The only medical witnesses so agreed. We might add that she is the only juvenile there. The other female patients are all adults and the majority have been committed to that unit because they are criminally insane. The only possible reason for keeping Debbie there is because of its maximum security feature. But this reason is greatly outweighed by the building’s detrimental factors. We direct the transfer of Debbie from the Yroom Building within 30 days, if that transfer has not already been effected. We leave to the administrative officials the selection of another suitable hospital, subject to judicial review if necessary.

It is beyond question that a person committed to a state hospital for the mentally afflicted has a right to receive treatment in an effort to cure or improve his or her condition. It is a notorious fact that overcrowding and under-staffing in our public mental institutions result in inadequate treatment for the average patient. But recognition must be given to a patient’s right to treatment. It is not enough to confine the patient, to afford only minimal custodial care, to institutionalize him or her in a mental prison. It has been stated that civil confinement for an indefinite duration may he sufficiently inhumane so as to constitute cruel and unusual punishment, violative of due process of law. 15 Villanova Law Review 961 (1970).

We recognize that the Legislature is better equipped to create specific procedures and establish the necessary institutions to insure a mental patient’s right to treatment than are the courts. However, in the absence of any legislative implementation, the court must function to protect the rights of persons committed to our public mental institutions. The court may insure that the administrators have performed their task with care and reached a reasonable result.

The “continuing failure to provide suitable and adequate treatment cannot be justified by lack of staff or facilities.” Rouse v. Cameron, 125 U. S. App. D. C. 366, 373 F. 2d 451, 457 (D. C. Cir. 1967). See, too, “The Right to Treatment,” 77 Yale L. J. 87, 111 (1967).

In 1960 the American Bar Association Journal heralded the advent of a new right, the right of the involuntarily committed mental patient to receive adequate treatment:

The fact that a person has a mental ailment is not a crime. Therefore, if anyone is voluntarily restrained of his liberty because of a mental ailment the state owes a duty to provide for him reasonable medical attention. If medical attention reasonably well adapted to his needs is not given, the victim is not a patient but is virtually a prisoner. [“A New flight,” 46 A. B. A. J. 516, 517 (I960)]

Incarceration with mere custodial care need no longer be sanctioned in a society apprised of the many advances in psychiatric techniques.

Our own statutes make the foregoing abundantly clear. N. J. 8. A. 30:4-7.1 provides in part:

It is hereby declared to be the public policy of this State to make maximum provision for the health, safety and welfare of incompetent patients in State and county institutions for the mentally ill and mentally retarded * * *.

N. J. 8. A. 30:4-24.1 provides:

Every individual who is mentally ill or mentally retarded shall be entitled to humane care and treatment and, to the extent that facilities, equipment and personnel are available, to medical care and other professional services in accordance with the highest accepted standards. * * *

Habeas corpus challenges the place as well as the fact of confinement, even if the challenged place is a particular ward or section of the hospital complex, and specifically if the particular ward or section is a maximum security unit, as here. Covington v. Harris, 136 U. S. App. D. C. 35, 419 F. 2d 617, 620 (D. C. Cir. 1969).

We find no need to decide whether the statute under which plaintiff was committed is invalid. The issue was not raised in the trial court.

We conclude that Debbie should be transferred from the Vroom Building as soon as conveniently possible, and in all events within 30 days. She is to be transferred to a moro appropriate place for suitable treatment, subject to judicial review if the appropriateness of relocation or treatment is questioned before the Law Division. We do not retain jurisdiction.

Except as herein otherwise provided the judgment is affirmed.