Evening Journal Ass'n v. MacPhail

• Decision Date: 26 April 1957
• Docket Number: No. L--7687,L--7687
• Citation: 45 N.J.Super. 184,131 A.2d 887
• Parties: The EVENING JOURNAL ASSOCIATION, a corporation of the State of New Jersey, Plaintiff, v. William MacPHAIL, Commissioner of Registration of Hudson County, Defendant. . Law Division
• Court: New Jersey Superior Court

Page 184

45 N.J.Super. 184

131 A.2d 887

The EVENING JOURNAL ASSOCIATION, a corporation of the State of New Jersey, Plaintiff, v. William MacPHAIL, Commissioner of Registration of Hudson County, Defendant.

No. L--7687.

Superior Court of New Jersey Law Division.

April 26, 1957.

Stein, Stein & Engel, Jersey City (Howard Engel, Jersey City, appearing), attorneys for plaintiff.

Samuel Schneiderman, Bayonne, attorney for defendant.

SMITH, J.S.C.

This is an action in lieu of prerogative writ in which the plaintiff demands judgment that the defendant be required to permit plaintiff, at a time and place ordered by the court, to photograph the signature copy register of one Thomas Gangemi so that plaintiff may publish a reproduction thereof in its newspaper, and the plaintiff moves for a summary judgment.

The court has considered the pleadings filed in this case, the complaint and answer thereto, the notice of motion and the moving papers attached thereto, namely, the affidavits, and the memoranda submitted on behalf of both the plaintiff and the defendant.

The court gathers that the facts, briefly, are that on or about April 2, 1957, and subsequently, the Jersey Journal published a political controversy and paid political advertisements related to the approaching Jersey City municipal election which is to be held on May 14, 1957.

A charge was made by one of the incumbent commissioners of the city, Mr. Ringle, that from 1938 to 1941 Thomas Gangemi, a business man and candidate for the office of city commissioner of Jersey City on one of the opposition slates in the present election, was listed on the city payrolls as a laborer and as such received and cashed checks during that time.

A paid political advertisement then appeared in the newspaper published by the plaintiff containing what purported to be a reproduction of a Jersey City payroll check dated May 31, 1941, made out to the order of one Thomas Gangemi in the amount of $75. The advertisement also contained a reproduction of the endorsement of said check. Thomas Gangemi, the candidate, reportedly has denied that he was the Thomas Gangemi named as payee in the check.

The affidavit indicates that the editor of the Jersey Journal, Mr. Eugene Farrell, sent an employee to examine and attempt to procure a photograph of the signature copy register of the said Mr. Gangemi which is within the custody of the defendant in his position as Commissioner of Registration of Hudson County, who has the custody and care of certain signature copy registers and other records required to be kept for use in general elections. Permission was granted to examine the signature copy register but not to make a photographic copy thereof.

The present action is one by the plaintiff wherein it seeks to compel the defendant to permit the photograph to be made of same, as plaintiff says, 'in furtherance of its business and as a public service,' and as I have already indicated, this is a motion for a summary judgment seeking a court order for that purpose.

The plaintiff contends it has a right to inspect the signature copy register under the express provisions of R.S. 19:31--10, N.S.J.A., which provides in part as follows:

'The signature copy registers shall at all times, except during the time as above provided and subject to reasonable rules and regulations be open to public Inspection.'

These records, called 'registration records,' are by statute and reported cases considered to be and are public records. The statutes concerning registration records contain no provision regarding the right of the general public to obtain and make photostatic copies. The commissioner of registration is obliged to preserve and protect all public records, as well as any and all rights of any individual voter.

The right of a newspaper publisher to inspect public records, the plaintiff contends, is granted under a case decided in the Michigan Supreme Court, Nowack v. Fuller 243 Mich. 200, 219 N.W. 749, 60 A.L.R. 1351 (1928), and also Holcombe v. State, 240 Ala. 590, 200 So. 739 (Sup.Ct.1941). Plaintiff, from such decisions, concludes that it has not only the right to inspect or examine them but to photograph them for newspaper publication. Plaintiff refers this court to a New York decision that 'the right to copy seems to be a necessary incident of the right to inspect.' In re Becker, 200 App.Div. 178, 192 N.Y.S. 754, 756 (App.Div.1922).

From the right to copy evolves the right to use a photographic device, so the plaintiff contends, and cites a decision by a Texas court which allowed a plaintiff to photograph the documents it sought to inspect and copy. Tobin v. Knaggs, 107 S.W.2d 677 (Tex.Civ.App.1937). Therefore, the plaintiff contends that both by statute and authority it has a right to make a photostatic copy of the records, to photograph same, and publish a reproduction of the requested signature copy record.

There is no specific statutory requirement as to the rights of the general public, as well as newspapers published in the county, to make a photostat of such public records in the commissioner of registration's office.

In this motion for summary judgment plaintiff relies on authority in the case of Casey v. MacPhail, 2 N.J.Super. 619, 65 A.2d 657 (Law Div.1949), in which a motion was made for summary judgment under then Rule 3:81--4 to allow plaintiff to make inspection of duplicate forms of registration filed with the superintendent of elections. In that case the plaintiff was a candidate for the office of commissioner of the City of Jersey City and its police chief. The court ruled that the plaintiff was entitled to inspect the registration forms and to copy same, but enjoined him, as I recall, from turning over any of the information to the Department of Police for purposes of investigation or otherwise. In fact, what the court there held was the right to inspect was subject to certain qualifications.

In this State the right of a taxpayer to inspect public records is clear. Ferry v. Williams, 41 N.J.L. 332 (Sup.Ct.1879) ; Higgins v. Lockwood, 74 N.J.L. 158, 64 A. 184 (Sup.Ct.1906). It seems to me, however, significant that in the case of Taxpayers Ass'n of Cape May, New Jersey, v. City of Cape May, 2 N.J.Super. 27, 64 A.2d 453, 456 (App.Div.1949), the plaintiffs were confined to an examination of documents which were public records. Just...