author: Eielbek, Y. C.

text:
    The Trust Company of New Jersey, executor, &c., complainant, v. Greenwood Cemetery et al., defendants.
    [Decided June 11th, 1943.]

      Mr. Thomas B. Davidson, for the complainant.

      Mr. Edwin K. Large, Jr., for the defendant Elizabeth E. Warden.

      Mr. Frederick M. Barnes, for the defendants E. Stewart Arthur et al. '

      Mr. William 8. Rwrode, for the defendants Hazel M. D. Hodge et al.

      Mr. John J. Corcoran, Jr., for the defendant Greenwood Cemetery.
   Eielbek, Y. C.

By this suit complainant, as executor and trustee under the wills of Emma B. Savage and Mercedes L. Savage, seeks construction of the wills and instruction as to its duties thereunder.

The decedents were sisters and their wills, both dated May 20th, 1931, are identical in every particular except that in the third, fourth and seventh paragraphs of Emma’s will the name of Mercedes appears, while in the same paragraphs of Mercedes’ will, Emma’s name appears.

The sisters were spinsters. At the date of the wills Emma was about seventy-two years old and Mercedes was about seventy-five. They .had no known heirs-at-law or next of kin, save each other. Emma died October 9th, 1941, leaving Mercedes surviving and Mercedes died two days later. Their estates consist entirely of personal property. They had lived together probably always; in any event, for years prior to the execution of the wills and up to the time of Emma’s death. They transacted all their business affairs together, making their investments in the same securities and their estates were nearly equal in amount. They kept a joint checking bank account, opened in 1922, .from which they paid their bills and they had separate safe deposit boxes in which they kept their securities, each having the right of access to the other’s box. At their deaths in each box was found an envelope containing .$12,000 in bonds and on the envelope found in Emma’s box was a written statement signed by Emma, “This is the property of Mercedes” and on the envelope found in Mercedes’ box was a written statement signed by Mercedes, “This is the property of Emma.” The seventh paragraph of each will declares that the testatrix is the owner of only a half interest in the securities and other personal estate mentioned therein and that her sisteT is the owner of the other half interest. While such was not the fact, the declaration evidences how each considered her property with reference to the other, although being an owner in severalty.

The wills were prepared under the supervision of Mr. Vreeland (now dead) who had been the personal friend of the sisters and their financial adviser for years. He was named in the wills as an executor thereof. Tinder his direction the wills were copied from earlier wills, the only change made from the earlier wills being to name complainant as an executor and trustee under the new wills. After the wills had been typed, Mr. Vreeland called to his office the two persons who subsequently attested the execution thereof and in their presence and in the presence of the sisters he stated that the wills had been copied identical with the provisions of the earlier wills, except as to change of executor. One of the witnesses then made some explanation to the sisters of the contents of the wills and asked them if they had read the wills and immediately after they had given affirmative replies, the wills were executed by the respective testatrices in the presence of each other and the wills were left with complainant where they remained until the death of the testatrices.

The foregoing statements are based on testimony with respect to the situation of the sisters, their relations toward each other and the circumstances existing at the time the wills were executed. Such testimony is admissible for the purpose of assisting the court in determining the intention of the testatrices from the expressions used in their wills. Leigh v. Savidge, 14 N. J. Eq. 124; Tooker v. Vreeland, 92 N. J. Eq. 340; 112 Atl. Rep. 665; affirmed, 93 N. J. Eq. 224; 115 Atl. Rep. 255; Coyle v. Donaldson, 91 N. J. Eq. 138; 108 Atl. Rep. 808; Noice v. Schnell, 101 N. J. Eq. 252; 137 Atl. Rep. 582. From inspection of the wills and from the recited facts I think there can he no doubt that the wills were intended to be mutual or reciprocal wills, executed pursuant to agreement between the sisters in a mutual desire to effectuate a common purpose and intent as to the disposition they desired to make of their estates. Their primary concern was for each other during their joint lives and for the survivor after the death of one, so that the survivor should have the enjoyment of their combined assets during her life. Their secondary concern was that on the death of the survivor those assets should be distributed to certain agreed on beneficiaries in agreed amounts.

The first and second paragraphs of their wills provide for funeral services, burial and payment of debts and funeral expenses. Then follow paragraphs three and four, viz. (in quoting them I leave the sister’s name blank) :

“Third: If my sister -, shall survive myself, then I give, devise and bequeath to her all the rest, residue and remainder of my estate, real and personal, whatsoever and wheresoever, absolutely and unconditionally, and to her heirs and assigns forever.”
“Fourth: In the event that I shall survive my sister-, or if she shall not survive me long enough to receive my residuary estate into her custody and control, then it is my will, and I do direct that my executor hereinafter named shall dispose of my estate as follows:”

Then follow money bequests to be paid through the executor for a' total of $60,000, each bequest being to the same person in each will and for identical amounts.

The defendant Elizabeth E. Warden, who is named in each will as.beneficiary of a trust fund of $5,000, contends that on Emma’s death the estate given Mercedes in fee by the third paragraph of Emma’s will was, by the fourth paragraph of that will, made conditional on Mercedes surviving Emma long enough to receive that estate into her custody ■and control; that because Mercedes survived Emma by but two days, Mercedes had not lived long enough to satisfy the requirements of said paragraph and therefore Emma’s estate passed under her will to her executor for disposition according to the terms of her (Emma’s) will. As a beneficiary named in Emma’s will she makes claim to a trust fund of $5,000, and she also contends that she is entitled to a like bequest as a beneficiary named in Mercedes’ will. In other words, she claims to be entitled to two bequests of $5,000 each. All other defendant beneficiaries named in the two wills claim to be entitled to but one payment of the bequests in their favor. Decision on the contention raised by Mrs. Warden turns on the construction to be given to the third and fourth paragraphs of Emma’s will, taking into consideration the entire will and the expressions therein used as they may be affected by the circumstances and the situation of the testatrix at the time she executed her will.

I am of the opinion that it was not the intention of either testatrix, when they executed mutual or reciprocal wills, that those to whom they proposed their estates should ultimately go, should take identical bequests under each will and the reasons for that opinion are based on the form of the wills, the relations between the sisters at and prior to the date of their wills and the strong probabilities arising from the following facts. Each testatrix left an estate approximating $54,000 which, so far as the evidence can now show, was invested in practically the same securities they owned at the time their wills were executed, out of which funeral and administration expenses and federal succession and income taxes would have to be<met before distribution could be made to beneficiaries for a total of $60,000, of which total sum $5,000 is given to Greenwood Cemetery as a trust, the income to be used for the care of two cemetery plots and of the stones, monuments and markers thereon. Each will shows special concern for the interest and welfare of the defendant Matilda Arthur who is named as a beneficiary in six places in the respective wills, one bequest for her benefit being of the residue of the estate in trust for her support and education during minority and of the principal upon arriving at the age of twenty-one. It is impossible to believe that the testatrices intended that their beneficiaries should,, under any circumstances, take under both wills the bequests therein stated for them, when they must have known that the result would be that each bequest would have to abate and that there would be no residuary estate for Miss'Arthur, and it would seem that they must have believed that a single bequest of $5,000 to the cemetery would be ample for the purpose intended, and the cemetery so regards it. Each will disposes of a particularly described diamond ring and of household goods and furniture. There was but one such ring and the household goods and furniture were contained and used jointly in the dwelling the testatrices occupied at the date of their wills. See In re Kinzler’s Estate, 178 N. Y. Misc. 604; 35 N. Y. Sup. (2d) 189; American Trust Co. v. Eckhardt (Ill.), 162 N. E. Rep. 843.

Beverting now to the third paragraph of Emma’s will wherein she gave to her sister Mercedes, in the event that Mercedes should survive her, the entire Tesidue of her estate “absolutely and unconditionally, and to her heirs and assigns forever.” The expressions used import a gift in fee made as definitely and as positively as any words known to the law could express such a gift and under that paragraph there can be no doubt that Mercedes, having survived the testatrix, became vested with the absolute ownership of the entire residue of Emma’s estate to the exclusion of the beneficiaries subsequently mentioned in her will. But the defendant, Mrs. Warden, contends that by reading the fourth paragraph in connection with the third paragraph, the testatrix’ intention is disclosed to be to impose a condition which operates to defeat the vesting of the unconditional estate given Mercedes. I do not agree that such construction should be given the fourth paragraph, especially when considered in connection with the circumstances and situation surrounding the testatrix at the date of her will, because the testatrix having definitely given her estate “absolutely and unconditionally” to Mercedes upon an event that happened, could not thereafter impose a valid condition by which the same estate given unconditionally, should go elsewhere. The rule is that where a testator has manifested an intent to vest an absolute fee-simple in the first taker, a subsequent limitation thereof is void as inconsistent with the rights of the first taker. Kutschinshi v. Sheffer, 109 N. J. Eq. 659; 158 Atl. Rep. 499, and eases there cited Kimble v. White, 50 N. J. Eq. 28; 24 Atl. Rep. 400; affirmed, 51 N. J. Eq. 638; 30 Atl. Rep. 430; Parmentier v. Pennsylvania Company for Insurance, &c., 122 N. J. Eq. 25; 192 Atl. Rep. 62; affirmed, 121 N. J. Eq. 272; 1 Atl. Rep. (2d) 332; Byrne v. Byrne, 123 N. J. Eq. 6-17; 195 Atl. Rep. 848; affirmed on another point, 124 N. J. Eq. 273; 1 Atl. Rep. (2d) 161; Trafton v. Bainbridge, 125 N. J. Eq. 474; 6 Atl. Rep. (2d) 209. The rule is applicable to bequests of personalty as well as land. Hyde v. Hyde, 88 N. J. Eq. 358; 102 Atl. Rep. 830.

Under the third paragraph of Emma’s will her estate vested immediately on her death in Mercedes (Kimble v. White, supra; Fidelity Union Trust Co. v. Rowland, 99 N. J. Eq. 72; 132 Atl. Rep. 673) and having so vested, Mercedes had legal custody and control for the purpose of disposing of it by deed, assignment or will. Her custody and control was subject only to the right and duty of complainant, as Emma’s executor, to administer it for the purpose of paying Emma’s debts, funeral expenses, federal and state taxes and the expense of administration. Emma’s desire as to the final disposition of her estate would be accomplished under Mercedes’ mutual reciprocal will. In that situation what effect should be given to the phrase appearing in a subsequent paragraph of Emma’s will concerning Mercedes not surviving Emma long enough to receive Emma’s residuary estate into her custody and control ? The words “long enough” and “custody and control” have different shades of meaning and are susceptible of several interpretations and therefore are too ambiguous and uncertain to be relied on as indicating a definite intention on Emma’s part to avoid such absolute vesting in Mercedes. To “control” a thing is to have the right to exercise a directing or governing influence over it and to have “custody” of a thing docs not necessarily mean actual possession or enjoyment of it, and it is to be noted that those words “custody and control” were not intended to have the meaning of actual enjoyment, because elsewhere in the will the testatrix in providing for a bequest said that if the designated beneficiary should not ‘dive long enough after my decease to come into the enjoyment of said legacy,” it should go over. It might also be noted that Mercedes had actual custody of

and physical control over that portion of Emma’s estate which consisted of bonds found in Mercedes’ safe deposit box in an envelope marked with Emma’s name. The words "survive me long enough” are most indefinite in, meaning. They may have been intended to indicate the shortest possible interval that might elapse between the deaths of the sisters, having in mind the thought that they might perish in a .common disaster. If surviving Emma two days was not long enough to give Mercedes legal custody and control of Emma’s estate, how long would Mercedes have had to live before it could be said that Emma’s estate had come into her custody and control? The executor of Emma’s estate had at least a year after Emma’s death within which to administer her estate before being required to deliver physical possession of estate assets to Mercedes, had Mercedes survived that long. If Mercedes had survived Emma by eleven months, or had her death occurred the day before Emma’s executor was ready to deliver that estate’s securities to Mercedes, could it be convincingly argued that Mercedes never had legal control over or custody of Emma’s assets? If it could be thought that paragraph four of Emma’s will should be read in connection with paragraph three thereof, it is my opinion that Mercedes survived Emma long enough to have custody and control of Emma’s estate within the meaning and intent of said paragraph four. Shippee v. Shippee, 188 N. J. Eq. 570.

It is my conclusion that under Emma’s will her entire residuary estate passed to Mercedes to the exclusion of all beneficiaries named in the subdivisions of paragraph four thereof and that the bequests and legacies provided for in Mercedes’ will are to be paid by complainant as executor of Mercedes’ will, out of the combined net estates of Emma and Mercedes in accordance with what I believe to have been the intention of the two testatrices as expressed in their mutual reciprocal wills.

The sixth paragraph of each will directs the executor to retain possession of the estates and to accumulate the,income until such income aggregates an amount sufficient to pay all funeral and testamentary expenses and all state and federal taxes and income taxes, and thereafter to transfer the estates as by the wills provided, the declared purpose of such direction being that the beneficiaries shall receive their bequests free and clear of all such charges. I do not think said paragraph applies to the interest which would, under the will of the sister dying first, pass to the survivor but if it does we are not particularly concerned with the paragraph as contained in Emma’s will because it could be of little or no concern to Mercedes’ estate, as an estate, whether charges applicable to Emma’s estate were paid out of the income or out of principal of that estate. But the beneficiaries who are to take by Mercedes’ will are much concerned with the operation of said provision under Mercedes’ will.

It is agreed that at least ten years’ income from the combined estates will be required to be accumulated before such income would be sufficient to pay such charges and if income tax rates are increased, which is not improbable, it will take much longer. When the wills were executed, it does not seem probable that the testatrices were aware that estate expenses and some taxes are chargeable against principal and (as also taxes on bequests) must be paid promptly to avoid heavy interest penalties. Eor does it seem probable that they could have realized what the total of the charges would be; or that the effect of adherence to the provision in question would long postpone their beneficiaries’ enjoyment of the bequests intended for them; or that some beneficiaries might not live long enough to come into possession of their bequests (one has already died); or what its effect would be on the bequests to Greenwood Cemetery for care of cemetery plots if possession of the bequests by the cemetery could not be had within a reasonable time. All beneficiary defendants desire to waive whatever benefit might accrue to them under strict compliance with said provision and they agree that the complainant shall meet all those charges out of corpus and such income as has already accumulated and make distribution of the combined estates at once. The residuary legatee, however, urges that the charges should not wholly come out of the residuary estate but should be prorated among the several beneficiaries.

The intent of the testatrices was that their estates, after the death of the survivor of them, should be of benefit to those they had named in their wills and that such benefit should accrue to them as speedily as possible, but that intent will be defeated if complainant, as executor and trustee under Mercedes’ will, is required to comply strictly with the provisions of paragraph six thereof. This court, as universal trustee, has power in cases of unforeseen emergency and for the protection of cestuis, to authorize an executor and trustee to do acts which are not strictly within the terms of a will, or to modify the terms thereof when such action is necessary to accomplish the intention and object of a testator. Pennington v. Metropolitan Museum, &c., 65 N. J. Eq. 11; 55 Atl. Rep. 468; Hedges v. Hopper, 118 N. J. Eq. 359; 179 Atl. Rep. 261; In re North Jersey Title Insurance Co., 120 N. J. Eq. 148; 184 Atl. Rep. 420; affirmed, 120 N. J. Eq. 608; 187 Atl. Rep. 146. Accordingly the complainant is instructed forthwith to pay all the charges mentioned in paragraph six of Mercedes’ will out of corpus and such income as has accrued thereon, and thereafter to make' distribution of the remainder of the estate in the manner directed by Mercedes’ will. Unfortunately for the residuary legatee such payments- must come out of residue, because it is the explicit direction of Mercedes’ will that the specific bequests should be paid free of the charges and taxes aforementioned.

The final question for consideration is presented by a counter-claim filed by Greenwood Cemetery (a corporation of New York) concerning the bequests given it, to which bequests reference has been made hereinabove. The remains of the two sisters were interred in one of the cemetery .plots described in their wills. The cemetery contends that the bequests to it must be considered as preferred on the ground (1) that the bequests are in the nature of funeral expenses and (2) that both bequests were given on a meritorious consideration, namely, the obligation of the cemetery to see to it that the plots and the stones, monuments and markers thereon are given proper care and attention in perpetuity. I do not think it necessary to comment on such contention (except to suggest some doubt as to its merit) because it seems probable that the estate passing under Mercedes’ will will be ample to satisfy in full all bequests to be paid thereunder. If that probability does not become a certainty, the contention made by the cemetery can then be given full consideration. The further contention raised by the counterclaim concerns the unwillingness of the cemetery to accept the bequests if the terms of Mercedes’ will require it to hold and invest the amounts bequeathed in special trusts, apart from similar trust funds it holds for like purposes, but it would he willing to accept them if the amounts can, under the terms of the will, be added to the cemetery’s “Perpetual Care Fund” which it has established with other funds received by it over a long period of years, fox the perpetual care of plots in its cemetery. That fund, under the laws of Hew York, is required to be kept separate and apart from its general funds and invested only in securities authorized by the laws of that state for investment o£ trust funds. The wills do not direct that the bequests in question shall be held in separate or special trusts and no objection has been raised by any defendant beneficiary to payment of the bequests to the cemetery to be held by it in its “Perpetual Care Fund.” I am of the opinion that the bequests can and should be so paid to and received by the cemetery and that thus the object and intent of the two testatrices as disclosed by subdivisions (a) and (b), paragraph four of their wills, will be carried out. The complainant as executor under Mercedes’ will is authorized to make such payments out of the combined estates which pass under Mercedes’ will.


source: Caselaw Access Project

author: Flannagan, 0. P. J.

license: Public Domain

text:
    Essex County Court of Quarter Sessions.
    STATE OF NEW JERSEY v. MICHAEL LISENA, DEFENDANT.
    Decided May 5, 1943.
    For the state, James McKenna.

    For the defendant, John J. Glancy.

   Flannagan, 0. P. J.

The defendant was convicted under Jt. S. 2:10o-l of using instruments with intent to produce an abortion and sentenced on tbe seventh day of April, 1943, to imprisonment. A writ of error was taken out and was presented to the court on April 30th, 1943, at which time a motion was argued for a “certificate of reasonable doubt.”

ISTo petition or grounds of the motion were presented to the court, as indicated as the preferable practice in State v. Baer, 6 N. J. Mis. R. 29; 140 Atl. Rep. 563, but the grounds were stated orally and argued orally. The grounds appear in the stenographer’s transcript of the motion.

The motion is made under R. S. 2:195-41; N. J. S. A. 2:195-11, which contemplates that in the event the trial judge denies the motion a motion for the same relief may be made to the Supreme Court Justice presiding in the county and that the trial judge state his reasons for such denial, in order, apparently, that the same may be presented to such justice on such motion before him. It is in compliance with this requirement that the reasons for the denial of the motion are now stated in this opinion.

“The sole question to be considered upon an application of this character is whether or not there is a reasonable doubt in the mind of the trial judge as to the validity of the conviction. It is neither the importance, character, nor gravity of the point involved, nor whether the point should, in the opinion of the trial judge, be reviewed by a higher court. It is the state of mind of the trial judge which must determine the question. He must have not only a doubt, but a reasonable doubt, as to the validity of the conviction; otherwise, the certificate should bo refused.” State v. Baer, supra (at p. 30) ; 140 Atl. Rep. (at p. 564).

The first ground upon which the motion was made is that it was error for the trial judge to refuse to grant the motion of defendant, made at the opening of the trial, to quash the indictment as duplicitous or as multifarious. Conceding for argument that the indictment be regarded as multifarious, the motion was addressed to the discretion of the court and there was plainly no abuse of discretion. There had been a previous trial and the defendant was thoroughly familiar with the state’s case. He was well aware of the fact that the state’s proof was that an instrument was used by defendant and defendant could not have been prejudiced in maintaining his defense on the merits by the form in which the indictment'was found. The language objected to in the indictment is as follows: “that Michael Lisena * * * did use in and upon the said June Kowalski divers instruments and means, to the Grand Jurors aforesaid unknown.”

The second ground argued is that the court erred in the admission of certain testimony.

The state called as a witness a physician, Dr. Gauzza, an associate gynecologist, who treated June Kowalski, the abortee, while on the staff of the hospital where she had been taken by a relative for treatment because of a bleeding condition from her female organ.

The state did not refer in its examination-in-chief of Dr. Gauzza to the history given by the abortee to this physician preliminary to treatment, but the defendant’s counsel, himself, opened the subject and asked the doctor bn cross-examination.

“Q. Did she inform you Doctor that she had been to another doctor before she came to the hospital? A. No.”

This question referred to a Dr. Hoffman to whom the abortee testified she had been and who at the time of the trial had joined the army and could not be produced, and who, the defendant’s attorney during the trial suggested was responsible for the abortee’s condition.

Continuing, the defendant’s attorney asked:

“Q. Did she inform you she had taken pills? A. She did not.”

The question may have referred to some quinine pills which the abortee testified she took or may have referred to some pills given her by Dr. Hoffman, which she testified she did not take.

The prosecutor on redirect examination then immediately asked the doctor, “Q. What information did you get from her, Doctor?” to which he replied, “A. That she had it done. By whom we do not know.” Two other questions on a different subject were then asked by the prosecutor, when the court asked, “The court—What do you mean by she had it done? What did she tell you?” Hp to this point no objection by defendant was made. The witness answered:

“The witness: That it came from natural causes—it came through criminal—[interrupted].

“Mr. Bozza: I object.

“The court: Strike out the word criminal. Through physical interference?

“The witness: Through physical interference.”

The information as to whether the bleeding condition of the girl’s female organ was due to natural causes, drugs, or to physical interference (trauma), was obviously information reasonably necessary for intelligent diagnosis and treatment, for which purpose the abortee was in the hospital, and being questioned by the treating physician.

It is a daily and approved practice in the trial courts for treating physicians to be permitted to testify to the history given them by patients necessary for the purpose of diagnosis or treatment. Miscarriage may be caused by disease from within as well as from physical interference or trauma from without, and that the very limited information disclosed in the instant case, viz., that there had been some physical interference, was necessary, seems as plain as would be the case if a patient asked for treatment at the hands of a doctor for a swollen ankle or for a bump on the head. The natural and necessary inquiry would be whether it arose from within or by reason of physicál force from without. The information given the doctor by June Kowalski was as circumscribed as could serve the essential purposes within the limits of reasonable necessity. The patient did not disclose whether the physical interference was by herself or by some one else, or by what means, and she gave no names. Dr. Gauzza testified, “By whom we do not know.”

It is argued that State v. Ludwig, 85 N. J. L. 18; 88 Atl. Rep. 822, is controlling, but I do not consider the case as in point. An examination of the printed “state of case” in that case confirms the inference from the official report that the physician (Dr. Clark), who gave the objectionable testimony, was not a treating physician. He was a surgeon of the police department, who was at the time acting as an investigator at the request of two detectives, Donovan and Mahan, who asked him to “ascertain her physical condition,” referring to the abortee. (Pages 32, 33.) The abortee (Mrs. Goff) had previously testified in the case, but “her testimony had been very vague upon the question whether an abortion had or had not been performed.” The investigator (Dr. Clark) was then called to the stand and was permitted to testify that the abortee told him that she “went to a midwife whose name is Alwine Ludwig,” the defendant, who produced an abortion “by use of instruments,” and that she felt “the introduction of some metal inside of her.” (Page 37.) Such statements to an investigator for the police are obviously objectionable hearsay, the mere fact, standing alone, that the investigator was a physician, does not avail to take the ease out of the category.

The defendant also cites State v. Gedicke, 43 N. J. L. 86, but I do not feel that this ease either is in point. In the Gedicke case declarations of the alleged abortee (called “SS”) made to a physician (Dr. Bleye) of “distinct charges of crime made against defendant,” and of the “use of an instrument to procure her miscarriage” by defendant were permitted. (Page 94.)

Yiewing the point in the instant case from a fresh aspect— The abortee, June Kowalski, testified fully and in detail that the defendant, after agreeing with her to abort her for $150 and after receipt of the money from her, had directed her to his office where he had inserted an instrument into her female organ, which later was followed by pain, bleeding, and a discharge, and her subsequent entry into the hospital for relief and treatment for her bleeding condition. Officer Birmingham testified, uncontradicted and without objection, that June Kowalski stated in his presence and in the presence of defendant that defendant had performed an abortion on her and that defendant made no reply.

In the face of all this testimony it is difficult to see how defendant could have been prejudiced by an additional statement of hers, ex parle, that she had had physical interference, without indication of any connection therewith by the defendant.

The third ground argued is that the court erred in its charge on the subject of the failure of defendant to take the stand in the following respect.

The court in its charge adverted to the testimony of the state’s witness, the abortee, June Kowalski, wherein she testified to a conversation with defendant by which she made a bargain with defendant to abort her, that she agreed therein to pay him $150 for doing so, that she did pay him in his own hand that sum, and that he thereupon inserted an instrument into her private parts. Bach one of these circumstances constituted a link in a chain or course of conduct, each act constituting an incriminating circumstance, and the court charged that defendant’s failure to take the stand and deny this evidence raised a presumption that he could not do so. This seems well within the rule.

The fourth ground argued is that the court erred in refusing to charge request Ho. 6. The request is as follows:

“You must bring in a verdict of acquittal if you are satisfied that the abortion was the result of self infliction by instrument or otherwise or as the result of June Kowalski taking the six quinine pills accompanied with gin producing some bleeding.”

The statute (R. S. 2:105—1; N. J. S. A. 2:105—1) does not require that the effort of the defendant be the cause of an abortion or that any abortion should actually follow his effort or that, if an abortion should follow his effort, hie effort be the cause thereof. In the instant case, even if the pills were the cause of the abortion it would not necessarily avail defendant anything. What the statute contemplates is that the defendant unlawfully use an instrument upon a pregnant woman with intent to cause an abortion. Success or failure in his effort is not the measure of his -criminality. As stated in State v. Gedicke, supra, in speaking of the statute, “The guilt of the defendant is not determined by the success or failure of the attempt.” (Page 89.) Hence, defendant’s request Ho. 6 was properly refused.

I find I have on the whole case no shadow of doubt in my mind of the guilt of the defendant upon the merits. I feel an abiding conviction that the technical grounds argued are without merit and that there is no prejudicial error in the record. The application must be denied.


author: Van Riper, C. P. J.

text:
    Essex County Court of Common Pleas.
    STATE OF NEW JERSEY, COMPLAINANT, v. NATELSON BROTHERS, TRADING AS COLYER & COMPANY, DEFENDANT.
    Decided June 14, 1943.
    Eor the Newark Defense Council, Sidney R. Pine.

    Eor Leonard Dreyfuss, Civilian Defense Director, Benjamin G. Van Tine (Milton M. TJnger> of counsel).
    Eor the defendant, Samuel Ribner.

   Van Riper, C. P. J.

The defendant was found guilty in the Police Court of the City of Newark on a complaint charging it with violating Rule and Regulation 22 promulgated by the Governor of -the State of New Jersey by virtue of the authority conferred upon him by section 13 of chapter 351 of the laws of 1943, N. J. S. A. App.A :9-45.

The appeal resulted in a trial de novo before this court, and the defendant moved for a dismissal, basing its motion-on the following points:

(1) That a corporation defendant may not be held as a disorderly person within the meaning of section 13, chapter 351 of the laws of 1943.

T think it is fundamental that where the legislature passes an act making it illegal for a “person” to do a certain thing, that “person” refers to a corporate identity as well as a natural person unless there is a specific exemption by the wording of the statute which indicates clearly that it is intended not to cover a corporate identity. The characterization and use of the word “person” is sufficient to include both.

(2) That the return of the magistrate fails to show that the defendant was adjudged a disorderly person as is required by section 17, chapter 251 of the laws of 1942, N. J. S. A. App.A :9~49.

An examination of the return made by the judge of the Police Court easily satisfies me that the return is proper and in accordance with the provision of the statute.

(3) That the rule-making power conferred upon the Governor by section 13, chapter 251 of the laws of 1942 is an illegal delegation of legislative power.

This point is directed to a most important phase of our form of government and therefore is worthy of full discussion, particularly in view of the fact that the question of the power of the Governor to promulgate certain rules and regulations by virtue of authority conferred upon him by the last-mentioned statute has not yet been passed upon by the courts of this state.

The act in question, chapter 251 of the laws of 1942, N. J. 8. A. App.A :9—33 et seq., was, as is set forth in section 1 thereof, a war time measure, enacted shortly after this country entered the present conflict, and as indicated by that section, its fundamental purpose was to provide the governmental authorities of the state in war time with the power to use the police power of the state for the protection of the health and safety of all the people of the state.

It was of course necessary in order to do this for the legislature to provide a comprehensive plan and method whereby the various agencies of the state and of the subdivisions thereof could best utilize the power and resources which they possessed in the public interest, that interest ■being fundamentally the protection of our people against attack and the preservation of our safety and health.

The act in question is comprehensive in nature and provides for the creation of a civilian defense organization, and goes into detail in describing many of the problems which it is contemplated will have to be dealt with, and provides further for the setting up of certain governmental agencies, both by and under the civilian defense director and under the Governor of the state.

Section 13 of the act provides that:

“In order to accomplish the purposes of this act, the Governor is empowered to make such orders, rules and regulations as may be necessary adequately to meet the various problems presented by the said war emergency and from time to time to amend or rescind such orders, rules and regulations, including among others the following subjects:

“A. On matters pertaining to. the method of conducting black-outs, partial black-outs, and modifying and controlling illumination * *

There follows then a detailed series of subjects over which and concerning which the Governor is given express authority to • promulgate his rules and regulations, but we are concerned here only with that which refers to the method of conducting black-outs and controlling illumination.

We are now confronted with the question of whether or not, as contended by the defendant, this grant of power to the Governor is such an unlimited grant of legislative power as to make it a violation of our constitutional provision, or whether of not it is merely clothing the Governor with the authority to perform an added executive function.

The defendant relies almost entirely upon the cited eases of Panama, Refining Co. v. Ryan, 293 U. S. 388; 55 S. Ct. 341, and Schechter Poultry Corp. v. United States, 395 U. S. 495; 55 S. Ct. 837, both of which were decided by the Supreme Court of the United States, and in both of which cases the court held that the grant of power to the President by the Congress was of such a broad and unlimited legislative nature that it was a clear violation of the constitutional provision and was therefore unconstitutional. Although of course it does not change the provision of the constitution here questioned, it is worthy of note in passing that the grants referred to in the above-mentioned cases were not the result of any war emergency legislation which attempted to confer upon the President the power to protect the nation against the assaults and emergencies of war.

In the Panama Refining Co. case the court said (293 U. S. 388; 55 S. Ct. 246) : “We look to the statute to see whether the Congress has declared a policy with respect to that subject; whether the Congress has set up a standard for the President’s action; whether the Congress has required any finding by the President in the exercise of the authority to enact the prohibition.” And further: “Section 9 (c) does not state whether or in what circumstances or under what conditions the President is to prohibit * * And also: “It establishes no criterion to govern the President’s course. It does not require any .finding by the President as a condition of his action.” And again: “So far as this section is concerned, it gives to the President an unlimited authority to determine the policy and to lay down the prohibition, or not to lay it down, as he may see fit.” The court then said: “The effort by ingenious and diligent construction to supply a criterion still permits such a breadth of authorized action as essentially to commit to the President the functions of a legislature rather than those of an executive or administrative officer executing a declared legislative policy.” And again in the 8 cheekier case, above referred to, there is the same question raised by the court as to whether or not the Congress by enactment of the statute in question actually declared a policy and left to the President only the administrative function of carrying it out, or whether it gave to the President broad and unlimited legislative powers to prohibit or not to prohibit a certain thing as he saw fit.

I think that chapter 251 of the laws of 1942 does not come within the category of the federal statute referred to in the last above mentioned eases. It is clear from a reading of the statute that the legislature defined a policy. That policy, in so far as it pertains to the act of the defendant in question here, was that the state should prescribe the method of conducting a black-out, and that the state should control illumination during black-outs. The fact that section 13 gives -to the Governor power to make regulations concerning these things amounts in itself to a declaration of policy that those particular subjects were matters which should come within the control of the state, and it follows that if illumination is to be controlled then there must be an administrative method devising that control and saying what it should be.

To contend that the state was without power to use its resources and its police powers to protect its people in time of war from a threatened invasion, or to assist them in preparing to defend themselves and train themselves to resist in case of invasion, would be to say that the state as an instrumentality of protection for its citizens had ceased to exist. And to further say that in order to provide this protection for the people the legislature must by legislative enactment define every detail and prescribe every administrative function would be to produce another absurdity.

We must take judicial notice of the fact that the acts of war are as unpredictable and uncertain as the future unknown acts of God; and therefore if the people are to be protected against them or be trained to meet them, the power of prescribing the conditions under which they are to be met must be so flexible as to permit them to be changed or regulated upon practically a moment’s notice. ' The person entrusted with the regulating of these administrative functions, in this case the Governor of the State, must, if he is to be effective, he clothed with authority to act as situations occur from time to time. Otherwise the policy of the legislature, namely, to provide the people of the state with every possible protection, becomes a nullity.

Unlike the federal statute above referred to, where the court held that the Congress had not declared a policy, "the legislature of our state has declared a policy. Part of that policy is, as prescribed in section 1 of the act, “to aid in the prevention of damage to and the destruction of property during the present war emergency by prescribing a course of conduct for the civilian population of this state during such war emergency and by centralizing control of all civilian activities having to do with the war emergency under the Governor.” It will be seen that by this act it was the declared policy of the legislature to make the Governor commander-in-ehief of civilian activities having to do with the war emergency. Having made him commander-in-ehief, they must of necessity clothe him with the authority to issue orders and to prescribe the method whereby the plan of training of the civilian population for the defense of the people of the state could be carried out.

I am satisfied that the legislature declared a definite policy, and that they did not delegate to the Governor legislative authority, but rather having made him commander-in-chief of civilian activities, in addition to the military activities of the state, which power he álready possesses by virtue of his office, they merely placed in his hands the duty and the responsibility of administering that policy, and said that he should administer it by virtue of regulations which were to be prescribed by him and published in accordance with the terms of the act.

The power which was delegated to the Governor was not unlimited. How many things he might be able to do, or how many subjects concerning which he might be justified in making regulations, it is not necessary to decide here. The fact is that the regulation which he made and which is in question here was one concerning black-outs and controlling illumination, which the legislature specifically said should be the subject-matter of a Governor’s regulation.

Herein the statute differs from the federal statute, and we are able to differentiate from the Panama Refining Co. case where the test seemed to be, as Mr. Justice Cardozo said, whether or not the legislation was “canalized within the banks that keep it from overflowing.” This language, in the words of one who is not anxious to invite further litigation in order to determine what might be said here, means that the test is whether or not the authority granted to the executive is unlimited, or whether or not it is confined and directed to specific subjects. It seems clear that in the statute which we are interpreting here the authority is specific and permits the Governor to act only in certain prescribed instances.

The decisions of the Supreme Court of the United States upon which the defendant relies were with reference to legislation enacted in the early days of the New Deal when the Congress was willing apparently to legislate away all authority almost without reservation. As was said in the Schechier ease, it amounted to “delegation of authority running riot.” (295 U. S. 495; 55 S. Ct. 853.) No such construction can be placed upon the statute in question here. The legislature did not abdicate; it merely appointed an administrative officer to carry out its policies.

I am satisfied that chapter 251 of the laws of 1942 clearly prescribes a legislative policy with reference to the subject-matter of black-outs and controlled illumination, and that Eegulation 22, the one here complained of, was a proper exercise of an administrative function by the Governor in furtherance of a constitutional grant by the legislature to the Governor of an administrative function, and that neither the statute itself nor the regulation referred to in any way conflicts with the constitutional prohibition against the grant of legislative power, and therefore both the statute and the regulation being valid, and the facts upon the trial of this case justifying the conclusion that the defendant violated the regulation in question, a verdict of guilty is hereby rendered and a fine imposed in the sum of $175.


author: WaesohE, President.

text:
    State Board of Tax Appeals.
    CITY OF HOBOKEN, PETITIONER, v. WILLIAM D. KELLY, state tax COMMISSIONER, AND NEW YORK CENTRAL RAILROAD SYSTEM, RESPONDENTS.
    Decided June 15, 1943.

      For the motion, Maximilian M. Stallman.

    Contra, John J. Fallon (by Franlc P. McCarthy).

   WaesohE, President.

This is a motion on behalf of the taxpayers, the several companies constituting the Mew York Central. Eailroad System, to dismiss for lack of jurisdiction the appeal complaint filed with this Board on May 17th, 1943, by the taxing district, City of Hoboken, to contest the assessment of property used for railroad purposes, made by the State Tax Commissioner pursuant to chapter 291 of the laws of 1941 and the amendments thereto, N. J. S. A. 54.'2 9A-l et seq., for the 1943 property taxes.

The statute permitting the filing of said complaint reads as follows:

“The authorities of a taxing district, desiring to contest the validity or amount of any assessment or reassessment of property * * * made by the commissioner under this act, may, as to the assessment or reassessment of property tax, on or before the third Monday of May following the assessment or reassessment thereof * * * file a written complaint with the State Board of Tax Appeals, specifying the grounds of complaint and the relief sought * * N. J. S. A. 54:29A-31; Pamph. L. 1942, ch. 337, § 6, amending Pamph. L. 1941, ch. 291, § 31.

A municipality desiring to take advantage of the provisions of the foregoing statute must comply with certain definite statutory requirements set forth as follows:

“If the complaint is made by * * * any taxing district, á copy of the complaint and notice of application for hearing thereon shall be served upon the taxpayer five days before the filing of the complaint by leaving a copy of such complaint and notice at its principal office in this state.” N. J. S. A. 54:29A—32; Pamph. L. 1941, ch. 291, § 32.

There is no dispute that the City of Hoboken had a right to file a complaint and that such complaint was filed with the State Board of Tax Appeals on the third Monday of May within the time limited by statute, but the basis of the motion is that the procedural requirements of the statute quoted were not complied with by the City of Hoboken.

Briefly stated, the facts surrounding the service of a copy of the complaint upon the taxpayers here involved are that on May 11th, 1943, the City of Hoboken, by its attorney, deposited in a United States mail bag in the Trust Company of Hew Jersey building in Jersey City, Hew Jersey (which bag was placed there for the receipt of mail), a letter addressed to Maximilian M. Stallman, Esq., 810 Broad Street, Newark, New Jersey, with postage thereon fully prepaid, containing a copy of the said complaint filed in this canse. This letter, containing the said complaint was subsequently delivered to the addressee at his office at 810 Broad Street, Newark, New Jersey, on May 14th, 1943. The said office of Maximilian M. Stallman at 810 Broad Street, Newark, New Jersey, is not the principal office in this state of any of the taxpayers involved in this appeal.

It will be noted that the statute requires the service of a "notice of application for hearing” by the taxing district upon the taxpayer. This is in addition to the service of the complaint. The complaint contains the following statement: “The City of Hoboken respectfully requests your honorable Board to hear the matter and correct the assessment in taxes by increasing the assessment as shown on Schedule A annexed hereto and made a part hereof and that the Board order the proper classification of railroad properties as between the various classes thereof.”

It is the contention of the City of Hoboken that the foregoing quoted paragraph constitutes a “notice of application for hearing” of the complaint filed. Counsel for the railroads takes the opposite view.

Proponents of the motion urge that the statutory requirements as to the service of a copy of the complaint and notice of application as outlined are mandatory, and since there was no strict compliance with these requirements the State Board of Tax Appeals acquires no jurisdiction of the subject-matter of the complaint. The City of Hoboken urges that these statutory requirements are directory only; that inasmuch as there was substantial compliance with the requirements of service, that this Board can and should overlook any deficiencies in a strict compliance with the statutory requirements and assume jurisdiction.

The State Board of Tax Appeals is a special statutory tribunal and is therefore strictly limited within the bounds of the jurisdiction prescribed by the legislature which created it and fixed its powers and duties. City of New Brunswick v. Upsilon Chapter, &c., of Rutgers University et al., 18 N. J. Mis. R. 147; 11 Atl. Rep. (2d) 430. There is no common law right to an appeal and such a right is not given in our constitution. The right to an appeal is purely a statutory privilege in this state. In re Hudson County, 106 N. J. L. 62, 72; 144 Atl. Rep. 169.

This Board has the right to interpret statutes, being bound, however, by the principles laid down by our courts in cases dealing with this subject. Of course, before there can be any interpretation of a statute, there must exist some ambiguity in the language of the statute. We see no ambiguity in the statute in question.

In the case of Proprietors of Morris Aqueduct ads. Jones, 36 N. J. L. 206, Chief Justice Beasley wrote the opinion of the Supreme Court. The Court of Errors and Appeals affirmed the judgment of the Supreme Court on the opinion of the Chief Justice (37 N. J. L. 556). In his opinion he said :

“Whether the notice of appeal from the award of the commissioners appointed to assess the value of the land of the petitioner and his damages, is sufficient, is the point in dispute. The statute in question declares that the party aggrieved by such award may appeal to the ‘next or second term of the court/ and that notice thereof shall be served ‘upon the opposite party two weeks prior to such term.’ The appeal in this case was made to the first day of the second term, a notice thereof of one week having been given; * * *

“Upon the argument before the course, an effort was made, on two grounds, to avoid the effect of this clear statutory-expression. The first position taken was, that the legislative direction, with respect to the time for which notice of the appeal is to be given, is not mandatory, but merely directory. $ $ $

“When an act is authorized or directed to he done by a written law, and the time and modes of doing such act are declared, it must, of necessity, oftentimes, he a question, in each particular instance, whether the time or mode so declared was so material in the eyes of the lawmaker, that he has made either an indispensable part of the affair. This idea is expressed by Lord Mansfield in the case of Rex v. Loxdale, 1 Burr. 447, in which he says: “There is a known distinction between circumstances which are of the essence of a thing required to be done by an act of Parliament, and clauses merely directory. * * *

“I am sure that the following proposition is established by the large majority of these authorities, viz.: That every requirement of the act must have the full effect the language imports, unless such interpretation of the words will lead to great inconvenience, injustice, or a subversion of some important object of the act.

““Judging the question now considered by this text, it is clear that the petitioner cannot stand on the ground assumed by him. It has been already said, that the language of this provision in question is too plain to admit of discussion. The right of appeal is given, but it is limited by two conditions; Pirst, it must be made to the first or second term of the court; and, second, a notice of such appeal must he given two weeks before such term. These restrictions upon the right are reasonable; they harmonize with the general scheme of this law, and they lead to no inequitable result. On what ground can they be dispensed with? If the time for notice can he disregarded, so also can the time in which the appeal is required to be made. It is obvious, that if it should be declared that this provision is merely directory, that it simply suggests a convenient mode of proceeding, carrying with it no mandatory force, no rule whatever exists, either as to the time of appealing or of giving notice. Such a conclusion has the effect of entirely abolishing the requirement in question; plain language aiming at a reasonable purpose, is not permitted to operate at all. I find no precedent for such a determination, and it seems opposed to all rational rules of statutory construction. The first ground should, I think, be overruled. * * *”

The Prerogative Court said in the opinion of the Ordinary in the case of Ellison v. Lindsley, 33 N. J. Eq. 258:

• “The only question presented for decision is, whether such posting of the claim was a ‘presenting’ (the term used in the third section of the act) or ‘exhibiting’ (the term employed in the twentieth section) of the claim within the limited period, within the meaning of the act. It certainly cannot be held to be so. If mailing the claim in time to reach the assignee by due course of mail, if no delay should occur, were to be held to he equivalent to presenting or exhibiting the claim, though it should not reach the assignee, it would, of course, be so on any other day than the last day of the limited period as well as on that day. * * *

“A claim sent by mail may, of course, never reach the assignee. The creditor who has recourse to that method of transmitting his claim takes the risk of its reaching its destination in due time. The assignee is to know who are the creditors who make claim as such by their act in presenting or exhibiting their claims within the prescribed period.

“It is urged, in this case, that the failure to present the claim at an earlier day was due to a mere mistake on the part of the appellants, and that that fact entitles them to a consideration which they could not claim if they were guilty of negligence. The alleged mistake was wholly their own. It arose from misreading the entry, in their own book, of the time when the limitation would expire. The Orphans Court has no power to relieve the appellants from the consequences of their mistake. The language of the statute is clear, and the court was not at liberty to extend it by construction. Proprietors of Morris Aqueduct Co. ads. Jones, 7 Vr. 206; Stelle v. Conover, 3 Stew. Eq. 640. * * *”

In the opinion in the case of Bray v. Ocean City Railroad Co., 60 N. J. L. 91; 36 Atl. Rep. 879, the Supreme Court said:

“One of the reasons in each case presents the question whether the order appointing commissioners is fatally defective because it fails to designate or fix a day when the report of the commissioners should be made or filed. * * *

“The language used to express the legislative design in the first section is as follows: ‘That all reports of commissioners hereafter appointed by any court, or by any justice of the Supreme Court, to appraise the damages for the taking of lands or other property for public use, shall be made or filed on or before a day to be fixed in the order of appointment, unless the court or justice shall, by order, extend the time, in which case the report shall be made on or before the day limited by said court or justice, and every appeal from such report shall be taken within five days after the day thus fixed.

“It is impossible to construe this language otherwise than as containing either a mandate or a direction to any court or justice appointing commissioners for this purpose, to fix a day in the order of appointment when their report is to be filed.

“The contention on the part of the railroad company is that the language in this respect is merely directory, and that the order will not fail because the direction was not obeyed. The question thus raised must be settled by an application of the doctrine established by this court in Proprietors, &c., ads. Jones, 7 Vr. 206, the judgment in which ease was affirmed by the Court of Errors, for the reasons given in the opinion in this court. Jones v. Morristown Aqueduct Co., 8 Id. 556.

“Applying this test to the act in question, I find it impossible to construe the clause which impliedly requires the court or justice making an order for the appointment of commissioners to insert in the order a designation of the day when their report shall be made or filed as merely directory. On the contrary, I think it is clearly mandatory.

“The purpose of the act was plainly to establish uniform rules in respect to all appeals from the award of commissioners in all cases of condemnation. One of the rules fixed a limit of time for taking an appeal. * * *"

In the opinion in the ease of Douglass v. Chosen Freeholders of Essex County, 38 N. J. L. 214, the Supreme Court said:

“It is no province of the courts to supervise legislation, and keep it within the hounds of propriety and common sense, so that even if in this case it could be demonstrated that the regulation in question was incommodious, or even hurtful, an appeal for relief to the judicial power would be utterly in vain. This enactment declares that no person elected in pursuance of it shall enter upon the discharge of his duties, unless he shall take an oath within twenty days after his election. The chosen freeholders are elected in pursuance of this charter, as much as the mayor of the city is. It is impossible, naturally, to deny that this expression is plain and certain, or that it embraces these officers—the relators—and this being so, the inquiry is ended.

“But in the next place it was urged, that this requirement fixing the time in which the official oath is to be taken, is not mandatory, but is merely directory. This question, when a statutory designation of time, with respect to the doing of an act, will be considered material to the legislative purpose, or when not, was fully considered by this court in the case of the Proprietors of the Morris Aqueduct ads. Jones, reported in 7 Vr. 206. The general rule there propounded is, that the prescription of the time in a statute is material, unless an intent is clearly evinced from the nature of the act to be done or the general purport of the law, that it was not so intended. The application of this rule obviously leads to the conclusion that this limit of time in this act is mandatory, and must be submitted to. The whole section is framed for the purpose of giving it such efficacy, and to ask the court to disregard the injunction as to time is, in substance, to ask the court to draw a pen through the entire section. Where the statute has said that one of these officers shall ‘not enter upon the discharge of his duties, unless within twenty days after his election,’ &c., he shall take and subscribe an oath, it would be a simple usurpation of power for the court to say that he may enter upon the discharge of such duty upon taking an oath after the lapse of the period designated. The time set is a reasonable one; to conform to it is not even inconvenient; I can see no color of reason for refusing obedience to such a direction. Ho adjudication which was cited, or which I have seen, affords any countenance for the rejection of such a regulation.

“The relators forfeited their right to claim their office under their election, by reason of their neglect to become qualified in accordance with this provision of the charter of the city. * * *”

In the case of White v. White, 61 N. J. Eq. 629; 47 Atl. Rep. 628, 629, a motion was made to the Court of Errors and Appeals to dismiss the appeal on the ground that it was taken too late. The court said in its opinion granting the application for a dismissal of the appeal:

“It is not contended that the legislature may not fix a period of limitation within which a review of a judicial determination must be sought in this court. The contention is that, in the statute before us, the words used to express the limitation in this class of causes are not to be interpreted in their plain and obvious meaning, but that a meaning is to be attributed to them restricting their operation to a portion of the class.

“The rule applicable to the construction of statutes in this respect was laid down in this court by Mr. Justice Elmer thus: ‘Ho principle is better settled or more important to be faithfully adhered to by courts called upon to enforce written statutes than that, in the absence of ambiguity in the language used, no exposition shall be made which is in opposition to the express words, or, as the maxim, is sometimes expressed, it is not allowed to interpret what has no need of interpretation.’ The learned justice then proceeded to quote, with approbation, the statement of the rule by Mr. Justice Washington, in United States v. Fisher, 2 Cranch 399, to this effect: ‘When a law is plain and unambiguous, whether it be expressed in general or limited terms, the legislature should be intended to mean what they have plainly expressed, and consequently no room is left for construction. But if, from a view of the whole law, or from other laws in pari materia, the evident intention is different from the literal import of the terms employed to express it in a particular part of the law, that intention should prevail, for that, in fact, is the will of the legislature.' Rudderow v. State, 2 Vr. 512.

“In the same line Chief Justice Beasley declared that where the letter of the law is absolutely unambiguous and definite and is susceptible of but a single meaning, the clause under construction must be read in such sense, no matter to what futility it may lead. Van Riper v. Parsons, 11 Vr. 1. * * *

“It is not within the province of the courts to construe the language of legislative acts by an inquiry into what the legislature ought to have intended thereby. Their duty is restricted to the question what the legislature did intend thereby, as discovered from its acts. To step beyond this restriction is judicial legislation and not judicial construction. * * *55

See, also, Herod v. Mutual Chemical Company of America, 115 N. J. L. 369; 180 Atl. Rep. 432; Otto v. Braddock, 119 N. J. L. 507, 510; 197 Atl. Rep. 271; Island Heights, &c., Co. v. Brooks & Brooks, 88 N. J. L. 613; 97 Atl. Rep. 267; Earle v. Willets & Co., 56 N. J. L. 334; 29 Atl. Rep. 198; Water Commissioners v. Brewster, 42 N. J. L. 125.

In the opinion in the case of Seiler v. Simpson, 76 N. J. L. 450; 69 Atl. Rep. 971, the Supreme Court said:

“The District Court Act prescribes that a party may appeal ‘if such party shall within ten days after such determination, give notice of such appeal * * * and enter into bond, &e., * * * to be approved by the District Court Judge'.5 Both a notice of appeal and the entering, into bond are necessary steps. * * *

“In the present instance the two acts above stated have not been done, and the omission of either is fatal. The appeal has, therefore, not been perfected so as to give this court the right to act.55

See, also, Lewandowski v. Polonia Publishing Co., 111 N. J. L. 248; 168 Atl. Rep. 273; Wykes v. Smarak, 84 N. J. L. 529; 87 Atl. Rep. 333; Zagerman v. Fenning, 9 N. J. Mis. R. 997; 156 Atl. Rep. 422.

In the ease of Gloucester City v. Greene, 45 N. J. Eq. 747, 751; 18 Atl. Rep. 81, the Prerogative Court held:

“The right of appeal is conditional upon its being demanded within the time limited by the statute. Hillyer v. Schenck, 2 McCart. 398, 401. The rule is firmly settled that a person believing himself to be aggrieved by a decree of the Orphans Court, must, in order to place himself in a position where he will have a right to have such decree reviewed on appeal, make a written demand of appeal to the court pronouncing the decree within the period fixed by the statute, and that if he fails to do so, his right of appeal will be lost forever. Hillyer v. Schenck, supra; Claypool v. Norcross, 9 Stew. Eq. 524; S. C. on appeal, 10 Stew. Eq. 261. This being the law, I think it would require the exercise of a very dangerous degree of ingenuity to find a way by which this court could, notwithstanding the fact that no appeal has been demanded within the time limited by statute, take jurisdiction of the question whether the decree of February 24th, 1888, was valid or not, and pronounce a judgment either affirming or reversing it.”

In the case of Oradell v. State Board of Tax Appeals, 123 N. J. L. 86; 8 Atl. Rep. (2d) 100, the Supreme Court held that :

“This petition of appeal, according to the proofs in the depositions, was neither served on the counsel for nor the clerk of the borough. It follows therefore that the county board acquired no jurisdiction whatever for failure of such service of the petition of appeal on those representative officials of the taxing authority, as required by statute—R. S. 54:3—21 et seq.; N. J. S. A. 54:3—21 ei seq. The judgment of the county board, in the circumstances, was a nullity.”

The Court of Errors and Appeals found no fault with this ruling, but reversed the decision of the Supreme Court on other grounds. 125 N. J. L. 37; 13 Atl. Rep. (2d) 479.

The following statement of the law is taken from 3 Cooley on Taxation (4ih ed.) § 1206 :

“Conditions precedent to a statutory review by an officer or board must, of course, be complied with. Whatever may be the relief sought, the party applying for it must comply strictly with the provisions of the statute which confers the right.”

The following is a general statement of the law taken from Corp. Jur. Secundum:

“The right of appeal being purely statutory, * * * it is an essential to the jurisdiction of the appellate court that there be, * * *, a compliance with all applicable statutory requirements * * *. For a court either to limit the language used or to add to it would be judicial legislation beyond its province.” 4 G. J. S., tit. “Appeal and Error ” 881, § 425.

“* * * the statutes usually require a citation, summons, or notice of appeal to appellee or defendant in error, and compliance with the statute in this respect is generally essential * * * to the jurisdiction of the appellate court * * *. Actual knowledge of the appeal by appellee does not, as a general rule, dispense with the statutory requirements * * *.” 4 O. J. S., tit. “Appeal and Error,” 1040, § 574.

We are of the opinion that the statement quoted above from the complaint of the City of Hoboken does not constitute a “notice of application for hearing” as required by the statute; but even if this quoted statement does constitute such notice, it was not served at the “principal office in this state” of the taxpayers involved and was not served “five days before the filing of the complaint” with this Board.

In view of the numerous decisions of our courts as herein noted, we think that the requirements as prescribed by section 32 of chapter 291 of the laws of 1941 for perfecting an appeal to this Board from the assessment of property used for railroad purposes made by the State Tax Commissioner are mandatory and jurisdictional. Since they were not complied with in this case, we have no jurisdiction to hear the appeal.

The motion to dismiss the appeal must therefore prevail.


author: Martino, D. C. J.

text:
    Camden City District Court.
    NANCY RUTH TROPP AND WALTER W. TROPP, PLAINTIFFS, v. THE GREAT ATLANTIC & PACIFIC TEA CO. ET AL., DEFENDANTS.
    Decided July 2, 1943.
    For the plaintiffs, Joseph Tomaselli.

    For the defendants, Carroll & Taylor.

   Martino, D. C. J.

The plaintiffs are husband and wife. The defendant The Great Atlantic & Pacific Tea Co. maintains a super market in the Borough of Oaklyn, County of Camden, State of New Jersey. The plaintiff Nancy Euth Tropp entered defendant’s store on March 9th, 1943, for the purpose of purchasing household commodities. She noticed that one of the items she sought to purchase namely “Miracle Whip Salad Dressing” was in a compartment over which was affixed a price tag calling the customers’ attention that the ceiling price was 45 cents for the quart jar. She requested to speak to the manager concerning this item. The manager, who was assisting in unloading a truck filled with merchandise for defendant’s store, approached the plaintiff Nancy Euth Tropp. She advised the manager that the ceiling price for a quart jar of “Miracle Whip Salad Dressing” as listed by defendant’s store, namely 45 cents, was incorrect and above the prevailing ceiling price for this commodity. He then referred to a price list book and advised the plaintiff Nancy Ruth Tropp that she was correct and that the ceiling price should be 41 cents. The quart jar had the price 45 cents written on the label and plaintiff Nancy Ruth Tropp testified that the manager changed the figure from 45 cents to 41 cents.- The defendant’s manager denies that he changed the price on the jar but admits the rest of the conversation with this plaintiff. The jar was admitted into evidence without objection and the crayon change in the price marking was plainly visible. The defendant’s manager admitted on the stand that the correct ceiling price per quart of “Miracle Whip Salad Dressing” was 39 cents. He attempts to justify his mistake by testifying that due to the economic conditions he is short of help and at the time plaintiff Nancy Ruth Tropp asked him concerning this item he was busily complying with the O. D. T. order of unloading all trucks immediately and sending them on to their next destination and in the excitement he inadvertently gave plaintiff the price for “Miracle Whip Spread,” which item is listed on the same price list. It further appeared that when plaintiff was leaving the store it was necessary for her to check out with the cashier at one of the store’s exits and the checker or cashier charged her 45 cents for this item, which fact she did not learn until she had arrived home and was checking the goods purchased against the printed receipt handed her by the checker or cashier. She discussed the day’s happenings with her husband, the other plaintiff, when he returned from work and on the following day, March 10th, 1943, she returned to defendant’s store and purchased another jar of the same “Miracle Whip Salad Dressing” together with one other item, which item was not divulged at the trial. She again consulted with het husband that evening. On the following day, March 11th, 1943, her husband, the plaintiff Walter W. Tropp, called at defendant’s store and also purchased a jar of “Miracle Whip Salad Dressing” and paid 45 cents for same. He purchased several other items for which a receipt was admitted into evidence without objection. Two suits were instituted. One suit by Nancy Ruth Tropp alleging two violations as of March 9th, 1943, and March 10th, 1943, and a separate suit by Walter W. Tropp alleging a violation on March 11th, 1943. The amount claimed was $50 for each violation together with reasonable attorney’s fee and costs of suit as provided for under section 205 (e) of the Emergency Price Control Act of 1942, 50 U. S. G. A. Appendix, § 925 (e).

Section 205 (e) of the Emergency Price Control Act of 1942 provides as follows:

“If any person selling a commodity violates a regulation order or price schedule prescribing a maximum price or prices, the person who buys such commodity for use or consumption other than in the course of trade or business may bring an action either for Fifty ($50.00) Dollars or for treble the amount by which the consideration exceeded the applicable maximum price, whichever is the greater, plus reasonable attorney’s fees and costs as determined by the Court * * A”

This act was not created to make public informers of the general public. Viewed in a reasonable light it does not mean that every shopkeeper who makes an overcharge of even a few cents must forfeit $50 to every customer who decides to sue. To permit this interpretation would result in the clogging of all court processes. Persons should not be permitted to succeed under this act where their only motive is to enrich themselves at the expense of the man in business. To do so would violate one of the very purposes of the act which is stated in the preamble “to prevent hardships to persons engaged in business,” chapter 26, title I, section 1, 56 Slat. 23, as amended October 2d, 1942, chapter 578, section 7 (a), 56 Stat. 767; 50 U. S. G. A. Appendix, § 901. Unless the plaintiff can show that the commodity was purchased “for use or consumption” there should be no recovery. The plaintiff Haney Euth Tropp, upon her visit to defendant’s store on March 9th, 1943, I find, intended to make a bona fide purchase “for use or consumption” and therefore should be entitled to recover. A few decisions have been rendered in other jurisdictions as to whether or not the amount recoverable must be $50 where treble the amount by -which the consideration exceeded the applicable maximum price is less than $50. No effort is made by this court to pass upon this point.

The verdict will therefore be a judgment of $50 plus $15 attorney’s fee and costs of suit in behalf of Nancy Euth Tropp on the first count of her complaint. Verdicts of no cause of action on all other counts of her complaint. A verdict of no cause of action on the complaint of the plaintiff Walter W. Tropp.


author: Siberman, D. C. J.

text:
    Second District Court of Paterson.
    MILTON KAPLAN, PLAINTIFF, v. MARDICH ARKELLIAN, DEFENDANT.
    Decided June 26, 1943.
    Dor the plaintiff, Lawrence Diamond.

    Por the defendant, Hey man Zimel.

    For Prentiss Brown, Administrator of the Office of Price Administration, William E. Bandmeyer.

   Siberman, D. C. J.

This is an action at law instituted by the plaintiff, Milton Kaplan, against the defendant, Mardich Arkellian, to recover damages in pursuance to section 205 (e) of the Emergency Price Control Act of 194.2, 50 U. 8. G. A. Appendix, § 925 (e). The facts as set forth in the state of demand allege that, on or about September 14th, 1940, the defendant rented to the plaintiff under a month to month tenancy, certain housing accommodations at an agreed monthly rental of $30; that for the month of August, 1942, the defendant landlord demanded and received from the plaintiff the sum of $33-or an excess of $3 over and above the maximum legal rent. Damages are then claimed by the plaintiff in the sum of $50 together with reasonable attorney’s fees and costs of suit. The second count of the state of demand claims the sum of $3 as moneys had and received by the defendant landlord for the month of July, 1942. This count likewise alleges that the sum of $33 was collected for that month by the defendant.

This cause is now before the court upon motion of the defendant to strike the plaintiff’s state of demand and dismiss the action on the ground that the Second District Court of the City of Paterson is without jurisdiction to hear and dispose of the purported cause of action.

The memorandum of the defendant sets forth the following queries:

1. Did said court have jurisdiction to enforce penalties arising under the laws of the United States?

2. Does the Second District Court of the City of Paterson have jurisdiction to enforce penalties arising under the laws of the United States?

3. Is the action brought under section 205 (e) of the Emergency Price Control Act of 1942 an action for a penalty?

.In deciding this matter the court shall first discuss question number three, which to the court is essentially the beginning point.

Section 205 (e) of the Emergency Price Control Act, under which the ease at bar is brought, provided as follows:

“If any person selling a commodity violates a regulation, order, or price schedule prescribing a maximum price or maximum prices, the person who buys such commodity for use or consumption other than in the course of trade or .business may bring an action either for Eifty ($50.00) Dollars or for treble the amount by which the consideration exceeded the applicable maximum price, whichever is the greater, plus 'reasonable attorney’s fees and costs as determined by the court. Eor the purposes of this section the payment or receipt of rent for defense-area housing accommodations shall be deemed the buying or selling of a commodity, as the case may be. If any person selling a commodity violates a regulation, order, or price schedule prescribing a maximum price or maximum prices, and the buyer is not entitled to bring suit or action under this subsection the Administrator may bring such action under this subsection on behalf of the United States. Any suit or action under this subsection may be brought in any court of competent jurisdiction and shall be instituted within one year after delivery is completed or rent is paid. The provisions of this subsection shall not take effect until after the expiration of six months from the date of enactment of this act.” (Italics mine.)

The plaintiff contends that a consumer action brought under section 205 (e) of the Emergency Price Control Act is not an action for penalty and cites the leading case of Huntington v. Attrill, 142 U. S. 657; 18 S. Ct. 224, 227 (1892). The court in that case said:

“Penal laws, strictly and properly, are those imposing punishment for an offense committed, against the state, and which, by the English and American constitutions, the executive of the state has the power to pardon. Statutes giving a private action against the wrongdoer are sometimes spolcen of as penal in their nature, but in such cases it has been pointed out that neither the liability imposed nor the remedy given is strictly penal.” (Italics mine.)

In Brady v. Daly, 175 U. S. 148; 20 S. Ct. 62 (1899), which was an action to recover a minimum amount of damages fixed by statute, the court, citing Huntington v. Attrill, supra, emphasized that the action was brought by the person damaged and not by the public. In reaching its decision the court said, 175 U. S. at p. 154; 20 S. Ct. 64:

“The further provision in the statute that the damages shall be at least a certain sum named, in the statute itself, does not change the character of the statute and render it a penal instead of a remedial one. The whole recovery is given to the proprietor, and the statute does not provide for a recovery by any other person in case the proprietor himself neglects to sue. It has nothing in the nature of a qui tarn action about it, and we think it provides for the recovery of neither a penalty nor a forfeiture.”

In the case of Hocking Valley Railroad Co. v. New York Coal Co., 217 Fed. Rep. 727 (C. C. A. 6th, 1914), the court* in determining whether the statute was penal by reason of a minimum amount of damages fixed by statute* stated (at p. 729):

“It provides no penalty or forfeiture at the instance of, or for the benefit of the public. The right of action is given only to the injured persons* and is purely remedial in nature. Huntington v. Attrill, 146 U. 8. 657, 667, 668; 13 Sup. Ct. 224; 36 L. Ed. 1123; City of Atlanta v. Chattanooga Foundry and Pipe Works (C. C. A., 6th Cir.), 127 Fed. Rep. 23, 28, 29; 61 C. C. A. 387; 64 L. R. A. 721; Chattanooga Foundry and Pipe Works v. City of Atlanta, 203 U. S. 390, 397; 27 Sup. Ct. 65; 51 L. Ed. 241; affirming the case last cited. It is not rendered penal by the fact that it provides a minimum recovery of $500 Tor any violation of this section’ * *

Under the rule the denomination of recovery as “damages” proves that the action was intended to be remedial and not penal. See Overnight Transportation Co. v. Missel, 316 U. S. 572; 62 S. Ct. 1216; Brady v. Daly, supra.

As to point two referring to the question of jurisdiction, R. S. 2:8-40; N. J. S. A. 2:8—40, states:

“Every action of a civil nature at law* or to recover any penalty imposed or authorized by any law of this state, where the debt, balance, penalty* damage or other matter in dispute does not exceed, exclusive of costs, the sum or value of Five Hundred ($500.00) Dollars, shall be cognizable in the district courts of this state.”

The District Court of Hew Jersey has been described as court of “general jurisdiction” of all cases involving amounts with the pecuniary limitation of the statute. McDevitt v. Connell, 71 N. J. Eq. 119; 63 Atl. Rep. 504.

The courts of this state have held that they have jurisdiction of actions based upon rights arising out of federal law. Fryna v. Fairlawn Fur Dressing Co., 114 N. J. Eq. 462; 168 Atl. Rep. 862; United States v. Smith, 4 N. J. L. 37. It is my conclusion that this is a civil action at law and the Hew Jersey District Court has jurisdiction.

The early reference to point three practically disposed of point one in the argument of the defendant. I might add that this is not an action in the sense of requiring a penalization for a federal violation by federal authority or the punishment by the government by the imposition of a fine or a damage payment directly to government authorities, or the imposition of a jail sentence. 1’t takes the broader interpretation o£ the word penal in giving a private action against the wrongdoer. The test seems to be whether the action is in the name of the state or in the name of an individual party injured, and whether the purpose is to punish an offense against the public justice, or afford a private remedy to an individual who has been wronged. This entire theory of law is ably discussed and disposed of in the case of Huntington v. Allrill, 142 U. S. 657; 13 8. Ct. 224.

It is therefore the conclusion of the court that an action brought under section 205 (e) of the Emergency Price Control Act of 1942 is not an action in the nature of a penalty in the strict sense o£ penalization but is an action permitting an individual wronged to seek damages for his unlawful inconvenience.

The motion to dismiss the action will be denied. A counsel fee of $10 will be allowed to the plaintiff’s attorney.


author: Evans, D. C. J.

text:
    District Court of the Second Judicial District of the County of Monmouth.
    KENTER COMPANY, INC., A CORPORATION, PLAINTIFF, v. FRITZ ERRATH, DEFENDANT.
    Decided June 18, 1943.
    For the plaintiff, Abraham-R. Klitzman.

    For the defendant, John V. Growell.

   Evans, D. C. J.

This matter is before me on order to show canse why the defendant should not be ordered to pay the judgment entered in the cause out of income and upon order to show cause why the said judgment should not be vacated.

Suit was instituted by plaintiff June 5th, 1931, upon contract. Because of the unusual circumstances and the period of time this case has taken I deem it proper to dwell more fully on the statement of proceedings.

The summons was returnable on June- 5th, 1931, and by several adjournments carried over until July 10th, 1931, when the docket shows the ease was postponed until July 31st, 1931, apparently at the request of an attorney for the defendant because the case jacket contains a letter from an attorney other than the plaintiff’s attorney requesting the adjournment until July 31st. The letter does not state the attorney represented the defendant nor was there on file at that time an appearance for defendant.

On August 14th, 1931, the case was marked “not moved.” The docket indicates no other proceedings until February 18th, 1933, when a stipulation dated February 14th, 1933, was filed. This stipulation was signed by the plaintiff’s attorney and the attorney now appearing for the defendant and below his signature is typewritten the following—Attorney for Defendant. The stipulation provided for the reinstatement of said cause on the calendar for trial as of the 24th day of February. The docket indicates two other adjournments and the entry of the non-appearance of defendant on March 31st, 1933, and the subsequent entry of default judgment on April 8th, 1933. On May 11th, 1933, execution was issued to one of the constables and returned unsatisfied on July 5th, 1933. No other proceedings appear until the filing of an affidavit of the attorney for the plaintiff and the order of the court providing for the issuance of alias execution on August 25th, 1942. The alias execution indicates levy made upon the defendant’s right, title and interest in certain personal property on September 24th, 1942, but no disposition of the same. The next entry upon the docket is a substitution of attorney for the plaintiff on February 19th, 1943, followed on March 8th, 1943, by the filing of a petition for discovery and the signing of the order for the defendant to appear before a certain master in Chancery on March 16th, 1943. Apparently service of said order was not obtained as it is followed by the entry of an order to show cause on April 2d, 1943, ordering the defendant to show cause before the court on April 16th, 1943, why he should not pay the judgment out of income. Personal service of this order was obtained. The hearing was adjourned until April 30th, 1943, on which date defendant’s attorney made application for a rule to show cause why said judgment should not be vacated. On the return date affidavits were submitted to this court on behalf of the defendant and argument heard on both rules.

Defendant’s attorney has submitted his affidavit and that of his client to the effect that he had received a written request in 1933 from the plaintiff’s attorney to sign a stipulation to relist the case. That since he had represented the defendant in other matters, he believed he would represent the defendant in this matter. The lawyer then'wrote the defendant and was advised by defendant that he had not been served with process, did not owe the plaintiff the obligation and did not want the lawyer to represent him. The attorney for defendant then and prior to the relisting date advised the plaintiff’s attorney of these facts and submitted a copy of the correspondence between him and plaintiff’s attorney. Defendant’s affidavit corroborates that of the lawyer. It also declares that he did not remember being served with process and that he has a good defense to the state of demand.

Since we are not now concerned with the validity of the initial process that part of defendant’s affidavit can he dispensed with.

“It is the clear policy of our courts to recognize acts by the attorneys of the court as valid and presumptively authorized and, unless the contrary appears, it will be presumed that a stipulation was duly authorized.” Bernstein & Loubet v. Minkin, 118 N. J. L. 203; 191 Atl. Rep. 733, 734.

“The courts of this state have placed great confidence in their attorneys” (Hendrickson v. Hendrickson, 3 Gr. 102, 105), and I believe because of that confidence and to expedite litigation have approved stipulations to a broad degree. The courts have approved the acknowledgment of initial process (Purcell v. Bennett, 68 N. J. L. 520; 53 Atl. Rep. 235), the stipulation of evidence in one cause into another (Hillerys v. Pfeffer, 79 N. J. L. 362; 75 Atl. Rep. 471), and even the waiver of the right to appeal (Harmina v. Shay, 101 N. J. Eq. 273; 173 Atl. Rep. 558).

The defendant in this instance appears upon rule to vacate the judgment and contends not only that the stipulation was without authority but that the plaintiff’s attorney had knowledge of the same. A reading of the affidavits and the docket convinces me of that.

“If the contrary be alleged, affirmative proof must be produced, and until it is the appearance will be held valid; but on it being satisfactorily proved, promptly after the discovery of the fact, that it was entered without authority, the defendant will be relieved from it’s consequences.” Mutual Life Insurance Co. v. Pinner, 43 N. J. Eq. 52; 10 Atl. Rep. 184, 186. The Supreme Court in Greenbaum v. Higgins, 147 Atl. Rep. 722 (not reported in New Jersey) approved the opening of a default judgment when the services of the attorney for the defendant had been discontinued and the plaintiff’s attorney had knowledge of said discontinuance.

The plaintiff raises the question of laches—judgment in this instance was entered in April of 1933. I see no indication from the docket of any circumstances which would have provided notice of the judgment to the defendant prior to this year nor has plaintiff submitted any proof of notice. A similar period of time had lapsed in the case of Mutual Life Insurance Co. v. Pinner, supra, and it was satisfactorily explained. The mere passage of time does not create laches without the precedent of knowledge on the part of the defendant or the existence of such circumstances that defendant should have known of it and not acted promptly to protect his rights. The plaintiff having had knowledge of the lack of authority of the defendant’s attorney to execute the stipulation in question, had opportunity in 1933 to have followed the method of relisting as established by statute, i. e., serving of adverse party personally within five days’ written notice of the relisting and filing proof of service.

Order to vacate judgment granted and order to show cause why payments out of income should not be made upon judgment is dismissed.