62 N.J. Super. 522 (1960) 163 A.2d 465

BAND'S REFUSE REMOVAL, INC., A CORPORATION OF THE STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
BOROUGH OF FAIR LAWN, BERGEN COUNTY, NEW JERSEY, A MUNICIPALITY OF THE STATE OF NEW JERSEY, ET AL., DEFENDANTS-RESPONDENTS, AND FRANK CAPASSO AND GERALD F. CAPASSO, TRADING, ETC., INTERVENORS-DEFENDANTS-APPELLANTS.

Superior Court of New Jersey, Appellate Division.

Argued June 7, 1960. Decided July 27, 1960.

*527 Before Judges GOLDMANN, FREUND and HANEMAN.

Mr. Samuel A. Larner argued the cause for intervenors defendants-appellants (Messrs. Budd, Larner & Kent, attorneys).

Mr. Walter H. Jones argued the cause for defendants-respondents (Mr. Morris Dobrin, attorney).

Mr. Heyman Zimel argued the cause for plaintiff-respondent.

The opinion of the court was delivered by GOLDMANN, S.J.A.D.

Defendants Capasso appeal from a Law Division judgment declaring void ab initio and setting aside their garbage removal contract with the Borough of Fair Lawn; declaring illegal and void ab initio all payments made to them under the contract; setting aside as illegal and void ab initio Fair Lawn ordinance No 688, a supplement to the borough sanitary code; and awarding $303,052.62 in favor of the borough against them.

I.

In February 1957 the Borough of Fair Lawn advertised for bids on a contract for the collection of garbage, ashes, waste and other refuse in the municipality, pursuant to specifications prepared by the borough manager and approved by the council. Prospective bidders were required to complete under oath a standard form of questionnaire concerning experience, equipment and financial ability, and to file it with the borough manager no later than February 26. The borough reserved the right to refuse a set of the specifications to those not qualifying on the basis of the completed *528 questionnaire. Five contractors filed the qualification form. Of these, four were accepted by the borough manager as qualified to bid. The fifth, Thomas Viola & Son, Inc., was disqualified because it lacked the required number of trucks under the specifications.

The notice to bidders stated that bids were to be received at the regular meeting of the borough council on March 26, 1957. However, the governing body by resolution postponed the time for submitting bids until April 9, its next regular meeting, without readvertisement. The borough manager had recommended the postponement because there was then pending certain legislation regarding dumps which might affect the bids. The qualifying contractors were advised of the postponement prior to March 26. All four submitted sealed bids on April 9. These were opened, read and then referred in regular course to the borough manager for review, report and recommendation. The council members subsequently met on several occasions and reviewed the figures, analyzing costs on the basis of their own inquiry and experience. They also conferred with and sought the advice of the borough manager. Finally, the council on April 23, 1957 unanimously awarded a five-year contract for the collection and disposal of garbage in Fair Lawn to the Capassos, the lowest responsible bidder.

On May 3, 1957 the borough and the Capassos executed a written contract for the five-year period at a base price of $1,095,625. The contract, by reference to paragraph 35 of the specifications, provided that the borough was to pay $1.25 additional compensation monthly for each newly constructed unit occupied after the beginning of the contract period. Additionally, the contractor was to have the exclusive right, under paragraph 31 of the specifications, to collect all garbage, ashes and refuse in the borough and, under paragraph 32, the exclusive right to negotiate private contracts with all business and trade establishments in the borough for such service at a reasonable fee. In case of any dispute regarding the fees to be paid, the matter was *529 to be referred to the borough manager, and his decision as to a fair charge was to be final and binding upon both the contractor and the operator of the establishment.

The Capassos began performance under the contract on May 17, 1957, and continued not only up to the time of the institution of this action, but throughout the period of the protracted trial which followed. Their performance was considered entirely satisfactory by the Fair Lawn officials. The borough made regular payments for the garbage service until the end of the trial. At no time did it rescind the contract or take any steps to do so. After judgment was entered we granted a stay; garbage and refuse collection has continued pending the appeal upon a limited payment basis.

On August 13, 1957 the borough council adopted ordinance No. 688, supplementing the ordinance establishing a sanitary code for Fair Lawn. It provided that no permit could be granted any person for the removal and disposal of garbage, ashes and refuse within the borough unless "pursuant to a contract entered into between such person * * * and the Borough * * * in accordance with the statute in such case made and provided." In other words, it prohibited any person other than the municipal contractor (in this case the Capassos) from collecting garbage, ashes and refuse on either a public or private basis.

Subsequent to the adoption of the ordinance plaintiff Band's Refuse Removal, Inc., applied for a license permitting it to collect garbage, ashes and refuse for the year 1958. The borough manager denied the permit because of the ordinance. Plaintiff then instituted this action.

The many unusual features of the case demand an extended consideration of the pleadings and the record.

II.

On November 25, 1957 plaintiff filed a complaint in lieu of prerogative writs stating that during 1957 it had been *530 and still was engaged in removing and disposing of garbage, ashes and refuse from the Western Electric Co. premises in Fair Lawn under a written contract with the company and pursuant to a permit duly issued by the borough permitting it to engage in the scavenger business. The company had invited plaintiff to bid for its 1958 contract. The complaint alleges that plaintiff, in order to be in a position to bid on that contract, applied to defendant borough and defendant borough manager on October 15, 1957 for a permit, which was refused because of the provisions of ordinance No. 688 adopted August 13 previous. The borough had in the meantime entered into an exclusive contract with the Capassos. Plaintiff claimed that the ordinance, the action of the borough in entering into the Capasso contract, and the borough manager's denial of the permit were arbitrary, discriminatory, unconstitutional and ultra vires. It demanded judgment declaring ordinance No. 688 illegal and void, and ordering the borough, and specifically its manager, to renew its previous permit or issue a new one.

Fair Lawn and its officials filed an answer alleging that the borough had entered into a contract with the Capassos as the lowest responsible bidder after proper competitive bidding under the applicable statutes, which contract designated the Capassos as the sole contractor authorized to collect garbage in the borough. By way of separate defenses it was claimed that: (1) plaintiff's action was barred by reason of the limitation period in R.R. 4:88-15; (2) the ordinance constituted a reasonable exercise of the municipal police power in protecting the health and welfare of the community and its citizens; (3) plaintiff was guilty of laches; (4) plaintiff had no proper standing to prosecute the action because it was not a resident or a taxpayer of Fair Lawn; and (5) the action, if successful, would result in a breach of the Fair Lawn-Capasso contract; plaintiff was equitably estopped from seeking relief, having slept on its rights and permitted the contract to be entered *531 into and the Capassos to begin work and expend money and labor thereunder.

Upon motion duly made and granted the Capassos were permitted to intervene as defendants. They thereupon filed an answer which was identical with the borough's, as well as a counterclaim demanding judgment restraining the borough from issuing any permit to plaintiff during the life of the garbage contract, restraining plaintiff from collecting garbage in Fair Lawn, and adjudging ordinance No. 688 and the contract valid.

A grand jury investigation into scavenger practices and contracts in Bergen County led to a new sequence of pleadings. On May 15, 1958 plaintiff was permitted, over defendants' objection, to file an amended complaint in three counts. The first repeated the allegations of the original complaint. The second was ultimately abandoned and is therefore of no moment here. The third count charged that the Fair Lawn-Capasso contract of a year before was not the result of open and honest competitive bidding, but of "secret agreements and understandings by and among Borough officials, Capasso Bros., and others which tainted the bidding with fraud and rendered the awarding of the contract to Capasso Bros. * * * illegal and void." Plaintiff particularized the alleged fraud by referring to the following actions taken by the Bergen County grand jury since the commencement of suit:

(1) The grand jury had voted indictments against borough council member and former Mayor Sogorko, Mayor Matule, Health Officer Begyn and Borough Manager Williamson, some of whom had been involved in awarding the Capasso contract. It had also filed a presentment setting forth certain improper practices involving borough officials in the award of garbage contracts. The amended complaint notes that the specifications provided for granting an exclusive right to collect garbage from private firms in Fair Lawn and that any dispute as to the rates to be charged was to be settled by the borough manager, and then goes on to allege that garbage collection problems were in practice referred by the borough manager to Health Officer Begyn, so that as a practical matter the rates to be charged for private garbage collection were left to *532 Begyn's determination. It is then alleged that the indictment returned against Begyn charges that he regularly received payments from the Capassos, and was in effect their agent; this gave them a favored position in bidding for the garbage contract since they knew that private garbage collection rates would be set by one who was not an impartial arbitrator.

(2) Immediately before the receipt of bids and the award of the garbage contract, the union representing the employees of garbage collection firms in the area had notified the borough manager and the firms that on and after May 1, 1957 truckdrivers' wages would be increased to $114 a week, with helpers getting $104, and that three men would be required on each garbage truck, instead of two as theretofore. The grand jury had charged that the Capassos were not required to pay the increased salaries until January 1, 1958, or to employ three men on each truck. Plaintiff claimed that the Capassos at the time of making their bid knew the union demands would not be enforced against them and were therefore able to adjust their bid accordingly. The result was that the bidding for the garbage contract was not honest and competitive, but fraudulent.

(3) The indictment returned against Health Officer Begyn and other borough officials charged that they received payments from Capasso Bros., so that the health officer was, at the least, directly or indirectly interested in the garbage contract. Since the statutes, including R.S. 40:83-2, made any such interest illegal, the garbage contract was illegal and void.

Plaintiff accordingly demanded judgment declaring the garbage contract illegal and void, dismissing the Capasso answer and removing the Capassos as parties defendant, and restraining defendants from interfering with plaintiff's garbage collection operations in the borough.

The answer of the borough and its officials to the amended complaint denied the fraud alleged in the third count, maintained there had been compliance with the bidding statutes, and iterated the several affirmative defenses included in their original answer. The Capassos' answer was similar.

The action was pretried on May 13, 1958 by the trial judge who later heard the case. (The amended complaint just mentioned was contemplated at the time of pretrial, obviously followed upon it, and was promptly filed on May 15.) In the light of subsequent developments, it is important *533 to note the contentions and issues crystallized in the pretrial order, and the stipulations and admissions of the parties. Plaintiff contended that ordinance No. 688 was arbitrary, discriminatory and ultra vires because it gave the municipal contractor an exclusive right to collect garbage in the borough. Plaintiff also contended that the Capasso contract was illegal and void because (1) the union letter (mentioned in the third count of the amended complaint) was sent out under an agreement between the business agent of the union, Seratelli, and the Capassos that its provisions would not apply in the event the Capassos were awarded the garbage contract, the purpose of the letter being to affect the bids that would be submitted; and (2) since the borough manager would refer to Health Officer Begyn any dispute as to the price to be charged for private garbage collection, and Begyn was on the Capasso payroll, the Capassos were in a favorable position in submitting bids. All this, it was said, amounted to fraud and collusion. The borough and Capasso Bros. denied the ordinance was arbitrary or ultra vires, but represented a reasonable exercise of the police power; and they also denied the alleged fraud and collusion, or that the contract was illegal. They raised the defenses that plaintiff was barred by the limitations of R.R. 4:88-15; it had no standing to attack the ordinance; and it was barred by laches and equitable estoppel. By their counterclaim the Capassos sought to enforce the ordinance and contract and thereby estop or enjoin plaintiff from collecting garbage and refuse from the Western Electric plant.

We particularly note that the parties, by the pretrial order, agreed that "the bids were advertised and the award was made pursuant to N.J.S.A. 40:50-1 and 40:66-4"; that plaintiff was not a resident or taxpayer of Fair Lawn, or a bidder for the municipal garbage contract; and that plaintiff had been refused a permit and had been collecting garbage without one. The case was set down for trial on June 19, 1958, the trial being estimated to take one day.

*534 It will be seen that plaintiff's action, initially involving simply the validity of the ordinance and the propriety of the borough manager's denial of a garbage permit for collection from a private client, had expanded considerably by the time of the pretrial conference. As already noted plaintiff, more than a year after the award of the contract to the Capassos, and without any valid legal interest therein, amended its complaint to allege the invalidity of the basic contract, advancing as grounds therefor certain hearsay statements (the grand jury actions) of alleged fraud, detailed above. Even as to the expanded claim of fraud plaintiff's counsel frankly conceded the limited nature of the fraud issue in the course of the trial when he said:

"* * * plaintiff's theory of the case at the time the plaintiffs amended, and the pretrial conference was held, was addressed to two questions which plaintiff felt it had a reasonable chance of offering proof on. Number one, the notification from the union to all contractors as to a supposedly contemplated raise in salary. Number 2, the relationship between Begyn and Capasso Brothers as disclosed by the indictment."

Plaintiff was further committed and limited in its factual contention of fraud by its answers to interrogatories submitted just prior to the beginning of the trial: its sole objection respecting secret agreements and the absence of open, honest and fair competitive bidding was that "defendant Capasso would receive favorable treatment" — obviously referring to the alleged relationship between Begyn and the Capassos.

III.

We shall first deal with the issues raised by the pretrial order and properly before the court for determination. The Capassos claim that ordinance No. 688 is valid; that plaintiff may not attack the validity of the contract because it has no standing, it is barred by the provisions of R.R. 4:88-15(a) and by laches; and its case is barren of proof *535 of the fraud alleged in the pretrial order. The trial court held against these contentions.

In support of the validity of the ordinance defendants Capasso rely mainly on Atlantic City v. Abbott, 73 N.J.L. 281 (Sup. Ct. 1906), and Marangi Bros. v. Bd. of Com'rs. of Ridgewood, 33 N.J. Super. 294 (App. Div. 1954). Plaintiff and the borough (which, as we will see, completely changed its position months after pretrial), insist that the ordinance is invalid under the case of McKim v. South Orange, 133 N.J.L. 470 (Sup. Ct. 1945).

In McKim the ordinance provided that no one might collect ashes, garbage or refuse in South Orange without procuring a license from the village board of trustees, and that only one license might be issued and in effect at one time. Fees for scavenger service were to be fixed from time to time by resolution of the board. Such a resolution was adopted, establishing a scale of rates the scavenger might charge property users. By further resolution the trustees licensed a certain corporation to be scavenger for one year at a fee of $1 to be paid to the village. The Supreme Court held the ordinance was not a reasonable exercise of the municipal authority. Quoting from Eckert v. West Orange, 90 N.J.L. 545 (E. & A. 1917), the court noted that there are two methods of municipal disposal of garbage, ashes and refuse: the municipality may do the work itself or it may contract with someone else to do the work. However, if the latter course is chosen and more than $1,000 is to be expended, the municipality must publicly advertise for bids and the contract may only be awarded to the lowest responsible bidder. Relating all this to the South Orange ordinance, the court said:

"* * * The ordinance does not simply limit the privilege of collecting refuse to a single scavenger to be selected by the trustees (Atlantic City v. Abbott, 73 N.J.L. 281). It provides, as we have said, that the work shall be paid for by the householder to the scavenger at a price; such a price as the trustees shall fix. The work has been costing the municipality more than $75,000 per year; and the cost under the proposed method will be but little, *536 if any, less than that. Certainly the aggregate of such moneys to be paid to and received by the scavenger will greatly exceed the sum of $1,000, which is the cost limit for contracting without public bidding, R.S. 40:50-1 incorporated by reference in R.S. 40:66-4, supra. Obviously, the village could not contract directly for the doing of the work without calling for bids. The proposed method is, we think, in violation of a public policy, implicit in these and other statutes, that public work exceeding a limited sum shall not be awarded except upon advertisement and to the lowest responsible bidder. The evils attendant upon an award without open bidding are not less under license than under direct contract. * * *" (133 N.J.L., at pages 473-474)

In Atlantic City v. Abbott, above, and referred to in McKim, the local ordinance prohibited anyone except the duly authorized contractor of Atlantic City from collecting or disposing of garbage or refuse, and contained regulations as to the time, means and manner of collection and disposal. After noting that the disposition of garbage is a matter of prime importance to the public health, justifying careful inspection and regulation on the part of the public authorities, the court concluded that although the ordinance created an exclusive right, it could not be said that this was not the result of an attempt to safeguard the public health by means which were reasonable and which bore a real and substantial relation to the end to be accomplished. It would seem that the Atlantic City case contractor considered the salvage value of the garbage sufficient reward to warrant his assumption of the task of collection without compensation. Therefore, the case did not raise the matter of public policy involved in McKim, i.e., the letting out of public work for a price fixed without competitive bidding.

Marangi dealt with still another type of ordinance, which provided that the board of commissioners should have the right to grant the exclusive privilege of collecting garbage, ashes and refuse upon competitive bidding for a period not exceeding five years. Such privilege could be granted to one whose bid provided for the lowest rates for the removal of such garbage. The Marangis contended, and *537 the trial court agreed, that the ordinance was invalid under the McKim case. In reversing we held that the great weight of authority is to the effect that considerations of public health provide sufficient justification for the granting of an exclusive license to a scavenger to collect garbage within a municipality. See Annotations, 15 A.L.R. 293 (1921), 72 A.L.R. 523 (1931), 135 A.L.R. 1309 (1941); 7 McQuillin, Municipal Corporations (3d ed. 1949), § 24.251, p. 90; 2 Dillon, Municipal Corporations (5th ed. 1911), § 678, p. 1023. We held that the vice which inhered in the McKim ordinance was not present in the case then before us, for the ordinance provided for open competitive bidding after public advertisement of the board of health regulations and the specifications. Moreover, the specifications, attached to and made a part of the license agreement, set out the various classifications of users of the service for which competitive bids for rates to be charged were sought.

The Fair Lawn ordinance differs completely from those just considered. It goes no further than to provide that no permit is to be granted any person for the removal and disposal of garbage, ashes and refuse unless it be pursuant to a contract between such person and the borough "in accordance with the statute in such case made and provided." The reference, obviously, is to the bidding statute, R.S. 40:50-1, calling for open, competitive bidding.

The claim is made that there was no fair and truly competitive bidding for the garbage contract because the bids received were only for household garbage, ashes and refuse, but the successful bidder would have the right to collect from business and industrial establishments at rates to be determined between the scavenger and the establishment — or, in event of disagreement, by the borough manager — a clear evasion of the bidding statutes. Further, it is contended that the bids were improperly received and, more important, that fraud and collusion attended the award of the contract. Whatever may eventually be said *538 in support of the claim that the specifications, bids and contract were illegal, we must look to the ordinance itself, passed some three months after the contract was awarded. It limits the issuance of a permit to one holding a scavenger contract executed in complete keeping with the bidding statute.

That the ordinance may result in an exclusive license is not per se a ground for declaring it invalid, for the granting of such permit, as we have seen in the cases just discussed, is well within the municipal police power. It must be presumed that a municipality, acting under such an ordinance, would do so within the frame of reference of a contract awarded "in accordance with the statute in such case made and provided." Were the scavenger contract properly awarded, whether to the Capassos or anyone else, plaintiff would have no cause to complain. And in a case where such contract was not properly awarded, and that fact legally established, again the ordinance would not be subject to attack: plaintiff would have to establish itself as entitled to a permit because holding a municipal contract awarded in keeping with the bidding statutes or, failing to do so, could not obtain the desired permit.

The trial judge was of the opinion that the public health does not require a single garbage collector. In reaching the conclusion that the ordinance "serves no useful public purpose * * * and was contrary to the public good, and is therefore null and void," he referred to the grand jury presentment that "the exclusive licensing of a single scavenger for the collection of garbage without establishing the amount to be charged for such service provides a fertile area for official misconduct." He also referred to the fact that there were 22 licensed scavengers in Teaneck, another Bergen County municipality, and that "there has never been a breath of scandal and practically no dissatisfaction with the collection of garbage in over thirty years, and no danger to the public health." We find nothing in the record to support these assertions given to justify the *539 trial court's determination that the ordinance was illegal and void.

Plaintiff, by the third count of its amended complaint, claimed that the Capasso contract was illegal and void because of alleged fraud, the particulars of which were spelled out in the pretrial order. At the very beginning of the trial the Capassos moved to dismiss this count because, among other reasons, plaintiff did not have the necessary standing to attack the contract. A similar ground was advanced upon motion for involuntary dismissal at the close of its case and upon motion for judgment made at the end of the entire case. The motions were denied.

It is uncontradicted that plaintiff is not and never has been a resident or taxpayer of Fair Lawn, and was not a bidder or potential bidder for the contract. It therefore was a total stranger to the contract, so that under the pretrial order there was no one before the court with the requisite personal or property interest to attack its validity. Cf. Waszen v. Atlantic City, 1 N.J. 272 (1949), where it was held that an unsuccessful bidder, not a resident or a taxpayer of the municipality, had no standing to attack the award of the contract or the validity of the specifications, whereas another plaintiff, a citizen and taxpayer, did; N.J. State Lodge — Fraternal Order of Police v. Aaron, 39 N.J. Super. 423, 428-429 (App. Div. 1956); 18 McQuillin, Municipal Corporations (3d ed. 1950), § 52.01, p. 2 et seq., and particularly § 52.12, p. 30.

There is the further point that plaintiff is barred from attacking the contract by the limitations contained in R.R. 4:88-15(a). The borough manager denied it a permit on October 25, 1957. Since the original complaint was filed on November 25, 1957, the action was commenced within the 45-day period of the rule. There could therefore be no objection to the first count of the amended complaint, which repeated the original complaint, on the ground that it was barred by limitations.

*540 However, the third count of the amended complaint, which attacked the validity of the contract, was not filed until May 15, 1958, more than a year after the Capasso contract was executed. It introduced a new and different cause of action, and therefore may not be held to relate back to the date the original complaint was filed. Russo v. Wright Aeronautical Corp., 1 N.J. 417, 419-420 (1949); 54 C.J.S. Limitations of Actions § 281, p. 335 (1948).

But even if the amended complaint (third count) be deemed to relate back to the filing of the original complaint, the proceeding seeking review of the validity of the contract was not instituted until more than six months after the alleged accrual of plaintiff's right to attack the contract. Plaintiff's cause of action on the contract, if indeed it had a right to bring any, accrued when the contract was executed, and the limitations period therefore ran from that date. Generally, a cause of action is deemed to accrue when facts exist which authorized one party to maintain an action against another. Marini v. Wanaque, 37 N.J. Super. 32, 38 (App. Div. 1955). The contract was awarded after public advertising and at a public meeting. Plaintiff, a scavenger collecting garbage in Fair Lawn at the time, knew or should have known of the municipal action.

In light of the above, we need not consider the arguments made by the Capassos that plaintiff is barred by laches and that its case was barren of proof of the fraud alleged in the pretrial order.

We conclude, under the issues defined at pretrial, that the Fair Lawn ordinance was valid and that plaintiff had no standing to attack the contract and was also barred by R.R. 4:88-15(a) from questioning its validity.

IV.

The Capassos next contend that the judgment must be reversed because of the manner in which the trial judge *541 conducted the proceedings. On the very first day of the trial, June 19, 1958, counsel for these defendants moved that the judge disqualify himself because his activities before trial demonstrated that he had prejudged the issues and exhibited a plan to use the litigation as a vehicle for a broad municipal investigation. Additionally, counsel during the trial objected repeatedly to the participation in the prosecution of the action by both the trial judge and the amicus curiae whom he had appointed. There were also several motions for mistrial because of the allegedly prejudicial actions of the court. All of these were overruled or denied.

The Capassos charge — and it is conceded by the trial judge and plaintiff's attorney, Mr. Zimel — that the judge communicated with Mr. Zimel before the trial began and discussed with him the production of various witnesses. It is also an admitted fact that when, during the course of a telephone conversation, Mr. Zimel informed the judge of the possibility of discontinuing the third count of the complaint, the judge said that if that were done he would immediately declare the contract void. When this was subsequently revealed in the course of a colloquy shortly to be mentioned, the trial judge sought to justify what he said on the ground that this was his sole means of controlling the case, since a very important issue involving the public welfare would be eliminated. We find the justification without merit. What the trial court said suggests a possible prejudging of the issues before a single word of testimony had been adduced. Indeed, it foreshadows what later became manifest — an attitude on the part of the court that a complete exploration into everything that might possibly touch upon the contract was his personal responsibility.

In discharge of his duty, as he conceived it, the trial judge addressed letters to various counsel demanding the production of certain witnesses and records, thus reflecting a prior partisan analysis and preparation of the case normally *542 considered the exclusive function and legitimate interest of counsel representing the respective parties.

On June 10, 1958 counsel for the Capassos wrote the court requesting an adjournment of the trial because Frank Capasso, one of the parties, was in Europe and would not return for more than a month, and for the further reason that plaintiff had not yet answered the interrogatories authorized under the pretrial order. Although counsel for the other parties consented to the adjournment, the court immediately wrote in reply: "Under no circumstances will there be an adjournment of this case."

Six days before the opening of the trial — on June 13, 1958 — the trial judge requested counsel to appear before him. The attorney for the Capassos could not attend because he was engaged in another trial. Nevertheless, the court proceeded to question counsel for plaintiff and the borough, requesting that they produce and subpoena certain named witnesses. As to some of these, plaintiff's attorney said that he had had no intention of calling them. It was during this court appearance that mention was made of the telephone conversation between the trial judge and Mr. Zimel, in the course of which the possibility of discontinuing the third count of the amended complaint was discussed. Mr. Zimel told the court on June 13 that he had amended the complaint because the grand jury had indicted Health Officer Begyn and made a presentment. He frankly admitted, "I have no information other than was contained in the indictment and in the newspapers * * * I have no further proof on that than is contained in the presentment." He went on to explain that the reason he had mentioned dropping the third count when he spoke to the judge on the phone was that "In the recent trial of Mr. Begyn, that part of the indictment which involves him with Capasso Brothers was dismissed by the Court. Since that was dismissed by the Court and there was no ruling on it by any jury or otherwise, I felt that perhaps under those circumstances I might drop the third count and proceed *543 on the illegality of the ordinance itself, feeling now very confident, in my mind anyway, that I would be successful on that point."

After further colloquy, the trial judge proceeded to read a statement obviously prepared in advance for public presentation at the June 13 court session. He reviewed the contents of the pleadings, their filing dates, and the similarity of the positions taken by the borough and the Capassos. He observed that "the fact that the Borough appears unwilling to inquire into the validity of the contract under the present circumstances is most unusual," and then went on to refer to such obviously extra-judicial and legally inadmissible materials as the grand jury investigation, its presentment, and the indictment of two Fair Lawn officials for an offense unrelated to the litigation. "These facts," he said, "together with the newspaper accounts of fraud connected with the collection of garbage under the contract involved in this suit, makes it imperative in the public interest that the matter be investigated * * *." He concluded this part of his statement with the remark that the apparent neglect of the borough to undertake and adequately protect the public interest and welfare involved in the suit "borders on criminal nonfeasance."

The trial judge then proceeded to appoint an amicus curiae, whose duty it would be "to present evidence, subpoena witnesses, examine all witnesses, and submit to the court briefs on the law and facts."

Counsel for the Capassos characterizes the court's statement of June 13 as revealing "a mind ripe for a finding of illegality, fraud, collusion and impropriety." That conclusion is, of course, partisan and strongly stated, but a full reading of the statement readily demonstrates that what the trial judge said was not well advised. His remarks cast a long shadow of a suspicion that the whole case was to be considered in the light of what the grand jury had done and what the newspapers had said; that there was something wrong about the borough and the Capassos taking *544 the same position and filing almost identical pleadings, and that the position of the borough officials bordered on criminal nonfeasance.

With the appointment of an amicus curiae who was to participate fully as an adversary representative of the court in support of the pleaded position of plaintiff, the basis was laid for what in fact became the equivalent of a municipal investigation instead of an impartial trial. A trial judge, no matter how sincerely motivated, may not convert civil litigation into a municipal investigation. The latter is fully provided for under N.J.S. 2A:67A-1.

An investigation into garbage collection practices and contracts may also legitimately be pursued by a grand jury or a legislative committee, as indeed happened in this case. See Senate Resolution 4 of the 1958 Legislature creating a Senate committee "to investigate the subject of garbage collection disposal in the several counties and municipalities of the State"; and Senate Resolution 3 (1959) and Senate Resolution 4 (1960) reconstituting and continuing that committee. The committee held eight hearings in 1959, and two in 1960.

The trial began June 19, 1958 and consumed 21 trial days, as compared with the estimated trial time of one day in the pretrial order. We have already referred to the preliminary motion that the judge disqualify himself under N.J.S. 2A:15-49(c), which provides that no judge shall preside at a trial when he "has given his opinion upon a matter in question in such action." It was denied, as were motions to adjourn the trial because of the absence of defendant Frank Capasso and the failure of plaintiff to answer certain interrogatories, and to dismiss the third count of the amended complaint because barred by R.R. 4:88-15(a) and plaintiff's lack of standing. Objection to participation of amicus curiae in the trial was overruled.

Even a casual reading of the record, covering some 2,000 pages of printed appendix, reveals an extraordinary participation by the judge in the trial of the cause. He obviously *545 had devoted much time in preparing for the questioning of witnesses and the offering of exhibits. This preparation on the part of the court extended to the issuance of subpoenas by the court itself and by its amicus curiae, and the contacting of witnesses for their appearance. The trial judge secured files and documents from the prosecutor's office and sifted them in advance, in preparation of having such of them as he deemed relevant offered as exhibits.

At the hearings the judge called witnesses on his own motion or had the amicus do so, and examined and cross-examined them at length. He offered exhibits he had called for. He ruled upon the propriety of his own questions and upon the admissibility of his own exhibits. On occasion he attacked the credibility of witnesses called by him.

In all, there were 32 witnesses who took the stand during the 21 trial days. Of these, the parties produced five; the trial judge, by his own subpoena, direction or arrangement, called 27. Of the latter, 24 were permitted to testify upon questioning by the court or amicus curiae, and this over the objection of counsel for the Capassos that their names had not been supplied in answer to interrogatories.

The court called Assistant Prosecutors Cuccio and Galda, as well as two shorthand reporters, to testify concerning certain statements which Health Officer Begyn gave the prosecutor's office. Although none of the parties desired to introduce these statements into evidence, believing their admission improper and being unwilling to risk the possibility of a reversal, the court nevertheless through its amicus (although he, too, doubted the propriety of admitting the statements) introduced the statements. The court next called Ridgway, a Bergen County detective, who testified that Frank Capasso told him he had given Begyn a $25 check as a contribution toward a Christmas party, and identified the check.

Borough Manager Williamson was called as a witness by plaintiff. However, the court took over his examination at considerable length. At one point almost 30 pages of the *546 record (roughly about 300 questions and answers) consisted of questioning by the trial judge concerning the Capasso contract. He also asked Williamson to produce certain documents when he returned to the witness stand the next day. Further, he instructed plaintiff's attorney to subpoena the officers of other firms that had bid for scavenger contracts, and their records.

The next witness was Alfred J. Lippman, president of Fereday and Meyer, Inc., one of the unsuccessful bidders, and a witness whom the court had instructed plaintiff to subpoena. Counsel for the opposing parties questioned him for a total of some 19 appendix pages. He was then examined by amicus curiae and the court for some 34 pages as to his computations in preparation for bidding. Another bidder, Stamato, called by plaintiff at the court's request, was questioned by the several counsel for about 13 pages, and by the court and amicus curiae for 17.

The trial judge called as a witness Borough Assessor St. Amour and, together with the amicus, questioned him for 15 pages, as compared with cross-examination by defense counsel covering two pages. Borough Chief of Police Risacher was called as a witness at the judge's suggestion and questioned by him for six pages; counsel for plaintiff asked only three questions. Mayor Vander Plaat was then called to the stand by the court. After two pages of questioning by plaintiff's attorney, the court continued by examining him for 31. Further questioning by amicus curiae and the various counsel consumed 21 pages.

Borough Councilman Shonka was called as a witness by the trial judge and questioned by him and the amicus for 42 pages. The court also called Police Officer Senegeto and, together with the amicus, questioned him about the result of observations he had been instructed to make of the number of trucks and men employed by the Capassos in collecting garbage in Fair Lawn. This examination covers ten pages. The court next called Donald De Bruin, principal clerk-bookkeeper and later the borough clerk and tax collector of *547 Fair Lawn. He was questioned by an attorney who temporarily took the place of amicus curiae, and by the court for 52 pages, while defense counsel examined him for two pages. Another witness called by the court was Ralph Mastrangelo, son of the contractor who held the prior garbage contract in Fair Lawn. The court questioned him for some 50 pages regarding the performance of that contract, with plaintiff's counsel limiting himself to seven pages of examination.

There were other witnesses called and questioned by the court, but the above suffices to demonstrate how active was the judge's participation in the trial. In our opinion, it exceeded the bounds of judicial propriety.

Defendants Capasso do not question the right of a judge to interrogate a witness in order to qualify testimony or elicit additional information, Ridgewood v. Sreel Investment Corp., 28 N.J. 121, 132 (1958), or his right under special circumstances to summon a witness on his own initiative, as in Polulich v. J.G. Schmidt Tool Die & Stamping Co., 46 N.J. Super. 135, 143 et seq. (Cty. Ct. 1957). Generally, a court's interrogation of witnesses, where not excessive, has been sustained. Lawton v. Virginia Stevedoring Co., 50 N.J. Super. 564, 580 (App. Div. 1958), where some of the cases are collected. As was pointed out by our Supreme Court in the Ridgewood case, above, the power to take an active part in the trial of a case must be exercised by the judge with the greatest restraint.

"* * * There is a point at which the judge may cross that fine line that separates advocacy from impartiality. When that occurs there may be substantial prejudice to the rights of one of the litigants. * * *" (28 N.J., at page 132)

The motivation of the trial judge may be found in what he said in his opinion in justification of his appointment of amicus curiae; he felt that the court was "faced with a grave situation testing its ability and will to use its powers, if necessary, to prevent fraud, preserve justice, and *548 protect the public interest." He also observed that he had the power to investigate as auxiliary to his power to decide, and "the power to investigate implies necessarily the power to summon and to question witnesses."

What is called for here is a balancing of judicial power against the interests of a litigant. On the one hand, there is the recognized power of a trial judge to call witnesses. Chalmette Petroleum Corp v. Chalmette Oil Dist. Co.,