author: Waesche, Commissionek.

text:
    Division of Tax Appeals.
    IN THE MATTER OF THE APPEAL OF CITY OF NEWARK v. AMERICAN REALTY AND INVESTMENT CO., FOR THE YEAR 1946.
    Decided April 27th, 1948.

      For the petitioner, Vincent Casale.

    For the respondent, Joseph L. IAppman.

   Waesche, Commissionek.

The City of Newark brought this appeal to the Division of Tax Appeals from the judgment of the Essex County Board of Taxation which fixed the assessment for the year 1946 on the land of the American Bealty and Investment Co., known on the tax duplicate of said city as Block 164, lots 20 and 23. The original assessment on the land for 1946, as fixed by the city’s assessor, was $136,900. The taxpayer appealed from this assessment to the Essex County Board of Taxation, which board reduced the assessment to $109,500. The city appealed to the Division of Tax Appeals to increase the assessment to the true value of the land.

The attorneys for the City of Newark and for the taxpayer agree that the judgment of the Essex County Board of Taxation was entered and published on October 8th, 1946. The city’s petition of appeal was filed with this division on November 9 th, 1946, more than one month after the publication of the County Board’s judgment. The taxpayer, therefore, now moves to dismiss the city’s appeal, because the petition of appeal was not filed with this division within one month from the date the Essex County Board of Taxation published the entry of its judgment (N. J. S. A. 54:2-39). The city contends that the statute does not limit the time within which it must file this appeal.

The first appeal which the statute allows to an aggrieved taxpayer or to a taxing district for discrimination is an appeal to the County Board of Taxation under section 54:3-21 of the Bevised Statutes as amended (N. J. S. A. 54:3-21). The petition of appeal must be filed with the County Board on or before August 15 th following the assessment. The time limit for filing an appeal to the County Board is the same, under the statute, for both the taxpayer and the taxing district.

Section 54:2-39 of the Revised Statutes, as amended, Pamph. L. 1946, ch. 161, p. 726, § 8; N. J. S. A. 54:2-39, permits an “appellant who is dissatisfied with the judgment of the County Board of Taxation upon his appeal” to appeal from that judgment to the Division of Tax Appeals by filing a petition of appeal with the Division “within one month” from the date on which the County Board of Taxation published the entry of its judgment. Under this section of the statute, only the appellant before the County Board of Taxation is given the right of appeal to the Division of Tax Appeals. Since the city was not the appellant before the County Board, the appeal sub judice was not brought under this section of the statute.

Section 54:2-35 of the Bevised Statutes, as amended, Pamph. L. 1946, ch. 161, p. 726, § 7; N. J. S. A. 54:2-35, provides that any action or determination of a County Board of Taxation may be appealed for review to the Division of Tax Appeals. Under this section of the statute, any taxpayer or a taxing district may appeal from the County Board judgment to the Division of Tax Appeals. The appeal sub judice was brought under this section of the statute.

The purpose of the three sections of the statute mentioned above as to provide within a reasonable time a fair and impartiaUreview and final determination of the original assessment. The policy of the state is to insure the taxation of all property at its true value (R. S. 54:3-13; N. J. S. A. 54:3-13), and to settle all tax controversies within a reasonable time. Montclair v. State Board of Tax Appeals, 127 N. J. L. 382; 22 Atl. Rep. (2d) 525; affirmed, 128 N. J. L. 319; 24 Atl. Rep. (2d) 849. These three sections of the statute are in pari materia. They must be construéd as a related whole, and a uniform and consistent legislative intent must be given to all parts thereof “so as to consistently effectuate the general legislative policy.” West Shore Railroad Co. v. State Board of Tax Appeals, 92 N. J. L. 332, 335; 104 Atl. Rep. 335; Passaic National Bank, &c., Co. v. Eelman, 116 N. J. L. 279, 287; 183 Atl. Rep. 677, 681; Jamou neau v. Murphy, 130 N. J. L. 498, 502; 33 Atl. Rep. (2d) 834; affirmed, 131 N. J. L. 39; 34 Atl. Rep. (2d) 417. In the case of Croter v. County of Somerset (Court of Errors and Appeals), 123 N. J. L. 407, 410, 412; 8 Atl. Rep. (2d) 691, 694, the court said:

“It is an elementary canon of construction that effect must he given, if possible, to every clause and sentence of a statute. It is to be presumed that every provision has significance in the delineation of the legislative purpose. * * *

“These enactments were in pari materia, and, on well settled principles of interpretation, are to be construed together as a homogeneous and consistent whole, giving effect to all their provisions and leaving no clause inoperative.”

In the recent opinion of the Court of Errors and Appeals in the case of Edgewater v. Corn Products Refining Co., 136 N. J. L. 664, 668; 57 Atl. Rep. (2d) 39, 42, the court said:

“The statute is not to be given an arbitrary construction, according to the strict letter, but one that will advance the sense and meaning fairly dedueible from the context. It is to be reasonably construed with reference to the central purpose of the entire enactment. The general intent is to be kept in view in ascertaining the scope and meaning of any part. The obvious definite purpose of the law giver is an implied limitation on the sense of general terms, and a touchstone for the expansion of narrower terms. The plain intention always prevails over the literal sense of the terms; the reason of the enactment will prevail over the strict letter. * * * It is not The words of the law, but the internal sense of it that makes the law.’ * * * If the sense and reason of the enactment find expression in the instrument as a whole, it is to he effectuated accordingly.”

As stated above, R. S. 54:3-21; N. J. S. A. 54:3-21, fixes August 15th following the assessment as the time limit for filing an appeal to the County Board of Taxation for both the taxpayer and the taxing district. If a taxing district or a taxpayer is the appellant before the County Board and dissatisfied with the judgment of that board, either may appeal to the Division of Tax Appeals, provided the petition of appeal is filed with the Division of Tax Appeals within one month from the date of the publication of the County Board judgment, N. J. S. A. 54:2-39. This limitation of time for filing a petition of appeal to the Division of Tax Appeals is applicable to the appellant before the County Board, whether the appeal is filed by a taxpayer or a taxing district. This is consistent with the time limitation fixed by the statute for a taxpayer or a taxing district to file an appeal to the County Board. It is also consistent with the policy of the state to settle all tax controversies within a reasonable time.

But, if the taxing district or the taxpayer is not the appellant before the county board, then, in that event, either may appeal to the Division of Tax Appeals under R. S. 54:2-35; N. J. S. A. 54:2-35. Unless the time limitation for filing an appeal under R. S. 54:2-35; N. J. S. A. 54:2-35 is the same as under R. S. 54:2-39; N. J. S. A. 54:2-39, the law •is not uniform. Furthermore, unless the time limitation for filing-an appeal under R. S. 54:2-35; N. J. S. A. 54:2-35 is controlled by the time limitation under R. S. 54:2-39; N. J. S. A. 54:2-39, there is no statutory time limitation for filing an appeal under R. S. 54:2-35; N. J. S. A. 54:2-35. The law, then, would not only be inconsistent, but would also be contrary to the policy of the state, which is to settle all tax controversies within a reasonable time. The following absurd situation would then be possible under the statute: the appellant before the County Board would be required by R. S. 54:2-39 N. J. S. A. 54:2-39, to file his appeal within one month from the publication of the County Board judgment, which appeal actually could be heard and determined by the Division of Tax Appeals and the right of appeal from the same County Board judgment would still remain open under R. S. 54:2-35; N. J. S. A. 54:2-35. This not only violates the public policy and necessity which requires an end to litigation, but, in addition, statutes ought not be given a construction that may lead to absurd, unjust, or contradictory results. Jensen v. Woolworth Co., 92 N. J. L. 529; 106 Atl. Rep. 808; Donohue v. Campbell, 98 N. J. L. 755; 121 Atl. Rep. 700.

The very point under discussion was decided by the State Board of Tax Appeals on February 5th, 1935, in an opinion by President Weaver, in the case of Newark v. American Cable Co., et al., 1934-1939 Tax Reports 21; 58 N. J. L. J. 82. The city’s appeals, in that case, were taken under section 10 of chapter 120 of the laws of 1906. This section later became section 54:2-35 of the Eevised Statutes, N. J. S. A. 54:2-35. The petitions of appeal were filed after December 15th following the County Board, judgment. The taxpayer moved to dismiss the appeals because they were filed out of time. Mr. Weaver held that the time limitation for filing the petitions of appeal pursuant to section 10, of chapter 120, of the laws of 1906 (later to become R. S. 54:2-35; N. J. S. A. 54:2-35), was controlled by section 104 of chapter 236, of the laws of 1918, as amended by section 14 of chapter 266, of the laws of 1933, which required petitions of appeal to be filed on or before December 15th. That part of section 104 requiring petitions of appeal to be filed on or before December 15th following the County Board’s judgment became part of section 54:2-39 of the Eevised Statutes, N. J. S. A. 54:2-39. The State Board of Tax Appeals, therefore, dismissed the city’s appeals because, under said section 104, they were filed out of time.

Sections 54:2-35 and 54:2—39 were re-enacted in chapter 161 of the laws of 1946. In the case of Ross v. Miller, 115 N. J. L. 61, 64, 65; 118 Atl. Rep. 771, 773, the court, quoting from the case of Lynch v. Long Branch, 111 N. J. L. 148; 161 Atl. Rep. 664, said:

“ ‘A judicial construction of a statute of long standing has force as a precedent from the presumption that the legislature is aware of it, and its silence a tacit admission that such construction is correct. The re-enactment of a statute after a judicial construction of its meaning is to he regarded as a legislative adoption of the statute as thus construed. So, where the terms of a statute which has received a judicial construction are used in a later statute, * * * that construction is to be given to the later statute; for if it were intended to exclude any known construction of a previous statute, the legal presumption is that its terms would be so changed as to effectuate that intention.’ ”

For the foregoing reasons, the appeal of the City of Newark in the case sub judice should be dismissed.


source: Caselaw Access Project

license: Public Domain

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    EDWARD J. FICK, PETITIONER, v. AMERICAN MUTUAL LIABILITY INSURANCE COMPANY, RESPONDENT.
    Decided May 12, 1948.
    For the petitioner, Joseph Butt.

    For the. respondent, Richard D. Porter {John W. Taylor).
   This is a proceeding brought by. Edward J. Fick, as petitioner, against American Mutual Liability Insurance Company, as respondent, seeking compensation under and by virtue of the terms and provisions of R. S. 34:15-1, et seq.; N. J. S. A. 34:15-1, et seq., "prescribing the liability of an employer to make compensation for injuries received by an employee in the course of employment, establishing an elective schedule of compensation and regulating the procedure for determination of liability and compensation thereunder.”

A petition and answer thereto were duly filed with the secretary of the Workmen’s Compensation Bureau, at his office in Trenton, New Jersey. In the regular course this matter came on for hearing before me, Maurice A. Kaltz, a Deputy Commissioner of Compensation, at the Bureau Chambers in Perth Amboy, New Jersey, on February 24th, 1948.

The pertinent facts as produced at the hearing were that the petitioner was regularly employed on a salary basis as a claim representative by the respondent company. On June 17th petitioner, while so employed, was injured during his participation in a one-legged contest while attending a picnic sponsored by Amlico Associates, which is an association of employees of the respondent company and of which association petitioner was a member and as a member contributed toward the expenses of the picnic. The petitioner was requested to attend the picnic by one of his superiors. June 17th was a usual work day and on that day petitioner had three alternative choices of conduct which were: 1. To work on a skeleton crew in the office; 2. To pursue his normal duties; or 3. To go to the picnic. The choice was a voluntary choice with no penalty attached. In any event, no matter which course he took, petitioner was paid his salary.

After duly considering all the evidence produced at the hearing had in this matter I find and determine that the picnic was sponsored by an association of respondent’s employees; namely, Amlico Associates. The participation and injury of petitioner in the games conducted at the picnic was not related to the employment in the statutory sense nor was the injury the result of a risk inherent in or incident to the employment. The respondent company merely accorded petitioner the privilege of attending a picnic if he so desired. Petitioner’s attendance at the picnic was purely a voluntary one with no penalty attached for failure to attend. The petitioner was not under the supervision and control of the respondent at the time of the alleged accident. Any injuries that he sustained while participating in any games at the picnic were not the result of an accident arising out of and in the course of his employment. The principle of “mutual benefit” is not applicable nor were any proofs offered to afford a basis for application of such principle.

Ordered that the petition filed herein be, and the same is hereby dismissed, and judgment is hereby entered in favor of the respondent against the petitioner on this 12th day of May, 1948.

Maukice A. Kaltz,

Deputy Commissioner.


author: Pkoctok, C. C. J.

text:
    ROSE LOFTUS, ADMINISTRATRIX AD PROSEQUENDUM AND GENERAL ADMINISTRATRIX OF THE ESTATE OF JANE RONAN, DECEASED, PLAINTIFF, v. PUBLIC SERVICE INTERSTATE TRANSPORTATION COMPANY, A CORPORATION OF THE STATE OF NEW JERSEY, DEFENDANT.
    Decided June 10, 1948.
    For the plaintiff, Edward V. Martino.

    For the defendant, Garl T. Freggens.

   Pkoctok, C. C. J.

The defendant has applied for an order allowing taxation of costs.

'The suit was originally commenced by Jane Eonan for damages as the result of injuries received by her when she was struck by defendant’s bus in the City of Camden, Flew Jersey, on October 10th, 1946. The complaint alleged that the aforesaid Jane Eonan resided in the City and County of Philadelphia, Commonwealth of Pennsylvania, and the defendant served a demand for security of costs, which security was filed with the clerk of this court. Thereafter Jane Eonan died and on June 27th, 1947, an amended complaint was filed by Eose Loftus, administratrix ad prosequendum and general administratrix of the estate of Jane Eonan, deceased. The amended complaint set forth that the new plaintiff, Eose Loftus, resided in the City and County of Philadelphia, Commonwealth of Pennsylvania. The first count of the amended complaint further asserted that the said Eose Loftus was appointed general administratrix of the estate of Jane Eonan, deceased, by the register of wills for the County of Philadelphia, in the Commonwealth of Pennsylvania. It was further alleged that pursuant to R. S. 3:13-7; N. J. S. A. 3:13-7, plaintiff had filed with the register of the Prerogative Court of Flew Jersey an exemplified copy of her letters of administration which were issued by the register of wills of the Commonwealth of Pennsylvania. Plaintiff as general administratrix, on this count, demanded damages for the pain suffered by her decedent, Jane Eonan, and for medical expenses incurred by the aforesaid Jane Eonan.

The second count of the amended complaint, which was an action brought under our Death Act, N. J. S. A. 2:47—1, et seq., stated that the plaintiff was appointed administratrix ad prosequendum of the estate of Jane Eonan, deceased, by the surrogate of Camden County.

The defendant served a demand for security of costs on the plaintiff and such security was died.

The case came on for trial before the court and jury in the Camden Circuit and at the conclusion of plaintiff’s case defendant’s motion for a nonsuit was granted. Defendant has now requested an order taxing the costs of the defendant against the plaintiff.

The right to costs is a creature of statute; there was no such allowance at common law. Lehigh Valley Railroad Co. v. McFarland, 44 N. J. L. 674. Under R. S. 2:27-378; N. J. S. A. 2:27-378, the prevailing party in an action at law is entitled to costs.

R. S. 2:27-381; N. J. S. A. 2:27-381, provides: “If plaintiff, in an action wherein he would be entitled to recover costs on a judgment in his favor, is nonprossed or nonsuited or a judgment passes for defendant, defendant shall have judgment against plaintiff for his costs, except where plaintiff is an executor or administrator prosecuting in his representative capacity, which costs shall be taxed as prescribed by law, and for which he shall have such execution as plaintiff would be entitled to had judgment passed in his favor.” (Italics supplied.) This legislation finds its source in the Practice Act (chapter 247, laws of 1903), which in turn is based upon the ancient provisions of the act of February 18th, 1795 (Pat. L. 1800, p. 149), and its English forerunners. Walton v. Taylor, 78 N. J. Eq. 266; 79 Atl. Rep. 437.

The exemption italicized above applies in cases where the deceased had begun the action and had died pendente lite, as in the present case. Miller v. Stieglitz, 11 N. J. Mis. R. 927; 168 Atl. Rep. 839.

However, in suits commenced in this state by a foreign executor or administrator, R. S. 3:13-7; N. J. S. A. 3:13-7, provides: “Any executor or administrator by virtue of letters obtained in another State may prosecute any action * * * in any court in this State, as if his letters had been granted in this State; provided that there shall be filed in the office of the Eegister of the Prerogative Court an exemplified copy of his letters testamentary or of administration and that security for the costs may he required from such executor or administrator as if he were a non resident of this State’’ (Italics supplied.)

This statute finds its source in chapter 119 of the laws of 1896, which superseded similar provisions in Pamph. L. 1879, p. 28, later amended by Pamph. L. 1887, p. 154 (2 Comp. Stat., 1910, p. 2265, 21 and note). It appears that no

right on the part of a foreign executor or administrator to maintain a suit in this state existed prior to the enactment of this legislation. Riddle v. Slack, 96 N. J. L. 412; 115 Atl. Rep. 741. It follows that foreign executors and administrators were not included within the scope of the earlier legislation (R. S. 2:27—381; N. J. S. A. 2:27-381) exempting executors and administrators from the payment of costs.

Even if it be conceived that foreign executors and administrators are included in the intendment of R. S. 2:27-381; N. J. S. A. 2:27-381, the same result obtains. In the ease of an irreconcilable conflict between two statutes the later statute is held to repeal the earlier statute by implication as far as they are incompatible. McNeely v. Woodruff, 13 N. J. L. 352.

It is my conclusion that in a case where a resident executor or administrator is a party plaintiff, costs are not taxable against'him but that under R. S. 3:13-7; N. J. S. A. 3:13-7, having to do with a non-resident executor or administrator, which compels the filing of requested security, a defendant who has prevailed at the trial is entitled to costs. The language of the statute requiring a non-resident executor or administrator to file security for costs would be meaningless if such costs could not be assessed against him. There is a presumption against vain or useless legislation. Tucker v. Frank J. Beltramo, Inc., 117 N. J. L. 72; 186 Atl. Rep. 821.

An order will be entered taxing the costs of the defendant. against the plaintiff.


author: Waesche, Commissionee.

text:
    Division of Tax Appeals.
    NATIONAL BANK OF NEW JERSEY, A CORPORATION OF THE UNITED STATES, PETITIONER, v. MIDDLESEX COUNTY BOARD OF TAXATION, RESPONDENT. For the Year 1946.
    Decided May 17th, 1948.
    Dor the petitioner, Irving Biker.

    Dor the respondent, Paul W. Ewing (by John T. Keefe).

   Waesche, Commissionee.

This appeal is brought by the National Bank of New Jersey, a banking association organized under the authority of the United States, to the Division of Tax Appeals from the judgment of the Middlesex County Board of Taxation. The principal place of business of said bank is located at 390 George Street, in the City of New Brunswick, Middlesex County, New Jersey. Pursuant to section 54:9-5 of the Revised Statutes as amended, Pamph. L. 1942, ch. 235; N. J. S. A. 54:9-5, the said bank filed with the secretary of the Middlesex County Board of Taxation a statement, under the oath of its president, which sets forth, among other things, the capital, surplus, and undivided profits, of the bank as indicated by its books as of January 1st,-1946, as follows:

Preferred Stock “A,” par value... $150,000

Preferred Stock “B,” par value... 168,750

Common Stock ........................ $550,000.00

Surplus ................................ 350,000.00

Undivided profits ....................... 142,595.14

Total ........................... $1,042,595.14

The statement also shows that the total assessed value of the real property of the bank for the year 1946 is $352,890. The Middlesex County Board of Taxation fixed the true value of the common stock of said bank, as of January 1st, 1946, at $689,705.14, and assessed the stock accordingly. The bank appealed this assessment to the County Board. Its appeal was dismissed and the assessment affirmed.

The bank contends that in ascertaining the true value of its common stock, the retireable value of its preferred stock and'the assessed value of its real property should be deducted from the sum of its capital, surplus, and undivided profits, R. S. 54:9-4; N. J. S. A. 54:9-4. The County Board deducted the par value of the preferred stock. Its retireable value is twice its par value. Hence, this appeal to the Division of'Tax Appeals.

Section 54:9-4 of the Revised Statutes, N. J. S. A. 54:9-4, provides as follows:

"The value of each share of common stock of each bank shall be ascertained and determined by adding the amount of its capital, surplus and undivided profits and deducting therefrom the assessed value of its real property, * * * and also deducting therefrom an amount equal to the aggregate par or retireable value of all classes of the issued and outstanding preferred stock of such bank, and by dividing the result by the number of its shares of common stock outstanding, ii being the intention that the shares of preferred stock and the capital represented thereby shall not be assessed or taxed; * *

The issue in this appeal lies in the application of the law embraced in the foregoing section 54:9-4 to the facts of the case, viz., should the par value or the retireable value of the preferred stock of this bank be deducted from the sum of its capital, surplus, and undivided profits in ascertaining the true value of the common stock?

The Constitution of New Jersey provided that property should be assessed for taxes "according to its true value,” article 4, section 7, paragraph 12; N. J. S. A. The Court of Errors and Appeals in the case of North Bergen Township v. Bergen Boulevard Holding Co., 133 N. J. L. 569; 45 Atl. Rep. (2d) 623, 626, held that: "The constitutional requirement is that property is to be assessed for taxation at its true value.” In the case of New Jersey Bell Telephone Co. v. Newark, 118 N. J. L. 490; 193 Atl. Rep. 844, 847; affirmed, 124 N. J. L. 451; 12 Atl. Rep. (2d) 675, the Supreme Court said: "The interpretation generally given to the expression True value,’ as used in the constitution and tax laws, is that the valuation for taxation should be on the price which the assessor believes could be obtained for the property, in money, at a fair sale, * *

The statute for the taxation of bank stock provides that: "The shares of the common capital stock of banks, * * * shall be assessed and taxed according to their true value, to be determined in accordance with the provisions of sections 54:9-4 and 54:9-9 of this title.” R. S. 54:9-2; N. J. S. A. 54:9-2. The phrase “according to their true value” means at their true value or fair selling price. Sections 54:9-4 and 54:9-9 are merely statutory guides for the determination of the true value of the common stock.

Section 54:9-9. provides that the true value of the common capital stock of any bank is to be ascertained and determined from an inspection of the.statement filed by the bank with the secretary of the County Tax Board, and “from any other sources of information which may be open” to the County Board.

In the case of Newark v. Tunis, 81 N. J. L. 45; 78 Atl. Rep. 1066, the Supreme Court held that the true value of the shares of stock of a national bank was their market value. In the case of Commercial Trust Co. v. Hudson Board of Taxation, 86 N. J. L. 424; 92 Atl. Rep. 263, 267; affirmed, 87 N. J. L. 179; 92 Atl. Rep. 799, the Supreme Court said:

“The method prescribed by the legislature, in section 2. [Pamph. L. 1914, p. 141], is not a complete method of ascertaining true value. It does not provide how the value of the capital, surplus and undivided profits shall be determined. Sometimes this value properly ascertained would give a correct result. It is only when the shares of stock have a value not represented by the actual assets of the corporation,- or when for some reason the true value is less than the value of the actual assets, that the addition of the three amounts, when determined, would fail to give the true value. The rule of section 2 is- only a working rule to enable assessors to ascertain true value, not the basis of assessment. Section 2 does not stand alone. Section 3 requires a statement of the amount of capital, surplus and undivided profits as the same are indicated by the books of the company, and upon these statements the county board is required to act by section 6. The legislature could not h^ve thought that the books of the corporation would be an infallible test of the amount of capital, surplus and undivided profits; they would be no more infallible than the method of section 2; the statement was no doubt required because it would furnish information that would assist in determining the true value. So, the value of each share ascertained under section 2 would give valuable information; but the county board is not limited by section 6 to the facts ascertained from the books (book value), and from adding together the amount of capital, surplus and undivided profits (liquidation value). It is authorized to resort to other sources of information which maybe open, and required to ascertain the true value of all the capital stock issued and outstanding. These last words had, at the time the act of 1914 was passed, a defined meaning in statutes providing for the taxation of trust companies, and were held to be equivalent to the whole number of shares. Fidelity Trust Co. v. Vogt, 66 N. J. L. 86; 48 Atl. Rep. 580. The provision in section 6, last cited, then requires the county board to ascertain the true value of the whole number of shares issued and outstanding. When section 6 goes on to say that the amount thus ascertained to be due upon the shares of stock shall be the tax levied and to be paid, it can only mean the amount ascertained by the county board based on true value after considering—(1) the value ascertained by adding together capital, surplus and undivided profits (liquidation value); (2) the amount of capital, surplus and undivided profits as the same are indicated by the books of the company (book value); (3) the true value of all the capital stock issued and outstanding. It is section 6 alone that prescribes the manner in which true value of all the capital stock shall be ascertained, and that manner is by the county board instead of by local assessors; the value' of a single share is to be determined in accordance with section 2 by deducting the assessed value of real estate and dividing by the number of shares.

“The prosecutors wrongly assume that the words “to be determined in the manner hereinafter prescribed’ refer to the incomplete and imperfect method set forth in section 2. In fact, they refer to the proceedings of the body which is to determine, in the first instance, the true value; that is to say, thé county board of taxation, and the prescribed manner is not the incomplete one of section 2, nor that of section 3, but the complete scheme of section 6, which involves a consideration of all the elements of the problem.”

R. S. 54:9-4; N. J. S. 4. 54:9-4, is practically a replica of “section 2” mentioned in the foregoing opinion of the Supreme Court. R. S. 54:9-5; N. J. S. A. 54:9-5 is practieally the same as “section 3,” and R. S. 54:9-9; N. J. S. A. 54:9-9, is taken from “section 6” mentioned in the above opinion.

In the case of Second National Bank, &c., v. State Board of Tax Appeals, 114 N. J. L. 573; 178 Atl. Rep. 96, 97, the Supreme Court said: “The county board must, from all the evidence, determine the true value of bank stock for purposes of taxation. The bank’s statement is not binding.”

The National Bank of New Jersey is a banking association organized under the authority of the laws of the United States. The federal statutes provide as follows:

“If any part of the capital of a national bank * * * consists of preferred stock, the determination of whether or not the capital of such bank is impaired and the amount of such impairment shall be based upon the par value of its stock even though the amount which the holders of such preferred stock shall be entitled to receive in the event of retirement or liquidation shall be in excess of the par value of such preferred stock. 12 U. S. C. A., § 5lb-1.

“The term ‘capita? as used in provisions of law relating to-the capital of national banking associations shall mean the amount of unimpaired common stock plus the amount of preferred stock outstanding and unimpaired; * * *.” 12 U. S. C. A., § 51c.

“No association * * *, shall, during the time it shall continue its banking operations, withdraw, or permit to be withdrawn, either in the form of dividends or otherwise, any portion of its capital.” 12 U. S. C. A., § 56.

On January 12th, 1937, the National Bank of New Jersey amended its Articles of Association and fixed its capital stock at $875,000, divided as follows:

(a) 50,000 shares of Preferred Stock “A” of the par value of $7.50 each, or a total of $375,000;

(b) 10,000 shares of Preferred Stock “B” of the par value of $25 each, or a total of $250,000;

(c) 10,000 shares of Common Stock of the par value of $25 each, or a total of $250,000.

The amended Articles of Association permit the bank to increase its capital stock by the issuance of additional- shares of common stock or by increasing the par value per share of such stock. On January 12th, 1943, the total number of shares of common stock outstanding was 10,000 of the par value of $25 each. On January 1st, 1946, the total number of shares of common stock outstanding was 10,000 and the capital represented by those shares of common stock was $550,000.

The amended Articles of Association provide that as long as any shares of preferred stock “A” are outstanding, the net profits of the bank must be applied first to the payment of dividends on the outstanding preferred stock “A,” next to the payment of specified amounts into the preferred stock “A” retirement fund, and the balance, if any, to the payment of dividends on the outstanding preferred stock “B,” and then into the preferred stock “B” retirement fund.

The Articles of Association provide further that no preferred stock shall be retired unless the sum total of the unimpaired capital, surplus, and undivided profits, and the retirement funds exceed $1,500,000 by an amount at least equal to the sum necessary to effect such retirement, except with the approval of the Comptroller of the Currency. And no shares of preferred stock shall he called or purchased for retirement unless all accrued dividends on the preferred stock to he retired have been paid.

Whenever the balance in the preferred stock “A” retirement fund shall amount to as much as $15,000, the bank must offer to purchase preferred stock “A” for retirement from the lowest bidder but not in excess of $15 per share, its retireable value.

Whenever the balance in the preferred stock “B” retirement fund shall amount to as much as $10,000, the bank must offer to purchase preferred stock “B” for retirement from the lowest bidder but not in excess of $50 per share, its retireable value.

The preferred stock “A” is subject to retirement by call upon the payment of $15 per share, and the preferred stock “B” is subject to retirement by call upon the payment of $50 per share, provided the capital of the bank is not impaired, or the sum of its capital, surplus and undivided profits reduced below $1,500,000.

Tims tie Articles of Association and the federal statute protect the capital of the bank against impairment by the retirement of the outstanding preferred stock. The retireable value of the preferred stock at any particular time is subject to the provisions of the Articles of Association and the federal statute. The retireable value of the preferred stock at any particular time is, therefore, a fact to be determined from the evidence. It is not a fixed and definite amount at all times.

The capital of the bank on January 1st, 1946, was $868,750. This capital was represented by 30,000 shares of outstanding preferred stock "A,” 6,750 shares of outstanding preferred stock “B,” and 10,000 shares of outstanding common stock. As of January 1st, 1946, the capital was divided as follows:

Par value Preferred "A” Stock........ $150,000
Par value Preferred “B” Stock........ 168,750
Par value Common Stock............. 550,000

On January 1st, 1946, the surplus was $350,000, and the undivided profits were $143,595.14. The total amount of capital, surplus, and undivided profits, on January 1st, 1946, was $1,361,345.14. As before-mentioned, no preferred stock can be retired without the approval of the Comptroller of the Currency, unless the sum of the unimpaired capital, surplus, and undivided profits, and the retirement funds exceed $1,500,000 by an amount at least equal to the sum necessary to effect such retirement. Therefore, the preferred stock had no retireable value on January 1st, 1946, since there was lacking the approval of the Comptroller of the Currency.

Furthermore, on January 1st, 1946, the surplus was $350,000 and the undivided profits were $143,595.14. Hence, the surplus and the undivided profits amounted to $493,-595.14. Therefore, if the preferred stock were called and retired at twice its par value, the bank would have to pay out $637,500. This would impair the capital of the bank, which is forbidden by its Articles of Association and the federal statute.

Mr. Kaymond E. Crimes, the executive vice-president of the bank, testified as follows:

“Q. And on December 31st, 1945, or beginning of January, 1946, was there any definite plan that a certain and specific amount of either of these two classes of stock would actually be redeemed during the year 1946? A. Planned where? By whom?

“Q. The bank. They are the only ones retiring it, isn’t that right? A. We had no predetermined ideas that we might exceed the requirements of the Articles of Association.”

Now let us again revert to R. S. 54:9-4; N. J. S. A. 54:9-4, which says that it is “the intention that the shares of preferred stock and the capital represented thereby shall not be assessed or taxed.” Here, then, is the reason for deducting the preferred stock from the capital, surplus, and undivided profits. It is deductible only because it is not taxable. What, then, are the assets of the bank which are not to be assessed or taxed? The statute, R. S. 54:9-4; N. J. S. A. 54:9-4, expressly mentions only the capital represented by the preferred stock. In this case, on January 1st, 1946, that capital amounted to only $318,750, the par value of the preferred stock.

Since the statute permits the deduction of the par or retire-able value of the preferred stock in determining the true value of the common stock, we can assume that the assets of the bank which the statute intended should not be assessed or taxed also includes such funds as may have been set aside or are immediately available for the retirement of the preferred stock. The evidence does not show that any funds had either been set aside for the retirement of the preferred stock or were available for that purpose of January 1st, 1946. Therefore, the only assets of the bank represented by the preferred stock which are not to be assessed or taxed for the year 1946 are $318,750, which sum represents the par value of the preferred stock. In the case of Second National Bank, &c., v. State Board of Tax Appeals, supra, the Supreme Court said:

“No bank can value its assets for the purpose of carrying on business at one figure and then seek the reduction of taxes by substituting figures which, if submitted elsewhere, would result in the loss of its franchise.’^

It is the intent of section 54:9-4 of the Revised Statutes, N. J. S. A. 54:9-4, that the true value of the common stock of a bank shall be the value of those assets of the bank which are represented by the common stock less the assessed value of its real property. Those assets would be the bank’s capital, exclusive of its real property, as represented by the common stock at its par value plus whatever surplus and undivided profits the holders of the common stock would be entitled to receive in ease of liquidation, or such as should be attributed to the common stock in order to keep the bank a solvent and going concern under the law. A bank might conceivably .build up a surplus and undivided profits more than sufficient to retire the preferred stock at its call or retireable value. In such a case, it would not be proper to attribute all of that surplus and undivided profits to the common stock, because this money would first have to be used for the retirement of .'the preferred stock. In such a case, it would be proper to deduct the full retireable value of the preferred stock. But where the preferred stock cannot be retired at its retireable value as of the assessing date, the bank can only deduct the par value of the preferred stock and the money in the retirement fund or available therefor at that time in arriving at the true or assessable value of the common stock.

From the evidence in this ease and for the foregoing reasons the appeal should be dismissed and the judgment of the County Board affirmed. .


author: Lloyd, C. 0. J. and S. 0. C.

text:
    GORDON W. ADAMS, PLAINTIFF, v. CITY OF ATLANTIC CITY, A MUNICIPAL CORPORATION OF THE COUNTY OF ATLANTIC IN THE STATE OF NEW JERSEY, DEFENDANT.
    Decided June 14, 1948.

      For the plaintiff, Lee F. Washington.

    For the defendant, Leon Leonard.

   Lloyd, C. 0. J. and S. 0. C.

This matter comes before the court on a motion to strike out a complaint filed under the provisions of the Uniform Declaratory Judgments Act, R. S. 2:26-66, et seq.; N. J. S. A. 2 -.26-66, et seq. The facts, as recited in the complaint and necessarily admitted for the purposes of this motion, are as follows:

In June of 1943, the plaintiff was appointed a temporary fireman in the paid fire department of the City of Atlantic City, at an annual salary of $2,050, beginning June 16th, 1943. Said appointment was made by the Director of Public Safety as the municipality’s duly authorized appointing authority. At the time of the appointment, Atlantic City had already adopted the provisions of the Civil Service Act, R. S. 11:1, et seq.; N. J. S. A. 11:1, et seq., and, according to the complaint, the municipality “has ever since been governed by said act, as supplemented and amended.” Plaintiff emphasizes in his complaint that his appointment was originally of a temporary nature, “pending the holding of a civil service examination for the position.” Plaintiff was sworn in, placed in the regular uniform of the paid fire department, assigned to a regular full-time shift and continued as a paid fireman until March 3d, 1944, on which date he enlisted in the United States Navy.

On November 10th, 1944, plaintiff received his honorable discharge from the navy and he then returned to his employment with the Atlantic City fire department. He continued to serve as a paid fireman until February 28th, 1947, when, according to the complaint, “he was summarily dropped from his said position, without cause, or hearing, or charges, or trial.”

Plaintiff contends that under R. S. 38:16-1; N. J. S. A. 38:16-1, Veterans’ Tenure Act, he was protected in his employment and that his dismissal was illegal and void. He further contends that by. reason of the facts recited in his complaint, a justiciable controversy has now arisen between plaintiff and the defendant touching the plaintiff’s status with' respect to his alleged office, position, or employment and his right to collect back salary from the date of his allegedly illegal discharge. Plaintiff asks a judgment in his favor declaring that his discharge from employment was illegal and void and that he was and has remained a permanent employee of the Atlantic City fire department. He further asks a judgment against the defendant for all back salary from the date of his allegedly illegal discharge.

Defendant moved to strike out the complaint on the ground, inter alia, that plaintiff is precluded from instituting an action for a declaratory judgment in this matter because there are other legal remedies available to him and, particularly, because he has not exhausted his statutory remedies.

Since the adoption of the Uniform Declaratory Judgments Act in this state our courts have held that the declared purpose of the act, R. S. 2:26-61; N. J. S. A. 2:26-61, limited its application ordinarily to cases where rights had not yet been invaded or wrongs yet committed to the extent of actionable damage; that whether or not relief under the act should be granted is a matter resting in sound, judicial discretion, but that such relief ought not ordinarily to be granted where amother adequate remedy is at hand. Empire Trust Co. v. Board of Commerce, &c., 124 N. J. L. 406; 11 Atl. Rep. (2d) 152. This interpretation, in so far as it indicates that the mere availability of another adequate remedy is sufficient reason for denying relief under the Declaratory Judgments Act, has been adversely criticised and even expressly repudiated by the federal courts and text writers. Franklin Life Insurance Co. v. Johnson (10th Cir.), 157 Fed. Rep. (2d) 653. Borchard, Declaratory Judgments (2d ed.) 315, et seq., and cited cases. But even the broadest view of the scope of the act suggests that discretion should be exercised against granting declaratory relief where another remedy would be more effective or appropriate. Borchard (2d ed.) 302, et seq., and cases cited. 34 DuVall, "Declaratory Actions," Amer. Bar Ass’n Journal (May, 1948), 379, et seq., and cases cited. Even stronger is the caution against allowing the use of the Declaratory Judgment to replace an administrative ox other specific, statutory procedure for relief. Borchard (2d ed.) 861; U. S. Fidelity and Guaranty Co. v. Thirion, 123 N. J. L. 29; 7 Atl. Rep. (2d) 863.

In the instant case, the complaint shows on its face that plaintiff’s original, temporary appointment was necessarily subject to the terms of the Civil Service Act. Therefore, the question of whether or not that temporary appointment developed or was changed into a permanent position by the happenings and circumstances recited in the complaint is one for presentation, in the first instance, to the Civil Service Commission, under R. S. 11:22-38 or 11:25-1; N. J. S. A., 11:22-38 or 11:25-1, or by petition to a Supreme Court Justice for summary review under R. S. 11:25-4; N. J. S. A. 11:25-4. The statutory proceedings are clearly more effective and appropriate than a declaratory judgment from this court could be in settling the present controversy between the parties. Moreover, the Declaratory Judgments Act ought not to be used to nullify the express provisions of the Civil Service Act. Borchard (2d ed.) 861, and cases cited. U. S. Fidelity and Guaranty Co. v. Thirion, supra.

In pleading the Veterans’ Tenure Act, R. S. 38:16-1; N. J. S. A. 38:16-1, to support his request for declaratory relief, plaintiff disregards the admission in his complaint that Atlantic City operates under the provisions of the Civil Service Act and that this act was controlling the appointments to the Atlantic City fire department at the time of plaintiff’s temporary appointment and at all times since. It is settled that a temporary appointment under civil service cannot be converted into, a permanent appointment except through compliance with the terms of the Civil Service Act. Shalvoy v. Johnson et al. (Supreme Court), 84 N. J. L. 547; 87 Atl. Rep. 471. The Veterans’ Tenure Act has been expressly held inapplicable to positions controlled by the Civil Service Act. Dodd v. Van Riper (Court of Errors and Appeals, 1946), 135 N. J. L. 167, et seq; 51 Atl. Rep. (2d) 34. Certainly the Veterans’ Tenure Act by its own terms is inapplicable to appointments made for a fixed or stated period of time; R. S. 38:16-1; N. J. S. A. 38:16-1, and the duration of plaintiff’s temporary appointment was at all times limited by R. S. 11:22-15; N. J. S. A. 11:22-15.

If in pleading the Veterans’ Tenure Act, plaintiff meant to show that somewhere during his employment the Civil Service Act ceased to control that employment, all he would be showing thereby would be that said employment was ultra vires and void, because contrary to legislative enactments, which plaintiff admits were binding on the municipality. In that situation, plaintiff could have had no employment, position or office under the municipal government which the Veterans’ Tenure Act could protect. Whatever the intention was in pleading both the Civil Service Act and the Veterans’ Tenure Act, plaintiff’s complaint fails to set forth any ground for Telief by way of a Declaratory Judgment from this court.

Plaintiff raised objections to the notice of motion, arguing that the grounds stated therein were not sufficiently specific. Said objections were not well taken.

For the reasons stated above, the motion to strike is granted.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    MANUEL V. PERALES, PETITIONER, v. WORTHINGTON PUMP AND MACHINERY CORPORATION, RESPONDENT.
    Decided June 30, 1948.
    For the petitioner, Saul M. Mann.

    For the respondent, James J. Carroll.

   This is a proceeding brought by Manuel V. Perales, as peti-; tioner, against Worthington Pump and Machinery Corporation, as respondent, seeking compensation under and by virtue of R. S. 34:15-35.1 to 34:15-35.9; N. J. S. A. 34:15-35.1 to 34:15-35.9, known as the silicosis and asbestosis supplement to the Workmen’s Compensation Act and being chapter 88, laws of 1944, approved April 10th, 1944, and effective January 1st, 1945.

A petition and answer were duly filed with the secretary of the Workmen’s Compensation Bureau at his office in Trenton, New Jersey. In regular course, the matter came on for trial before me, John J. Stahl, a Deputy Commissioner of Com.pensation, at the chambers of the Workmen’s Compensation Bureau, 158 Ellison Street, Paterson, New Jersey.

The present proceeding is grounded upon a claim of silicosis, a disease of the lungs, defined by the statute 34:15-35.2 as “due to breathing air containing silicon dioxide dust, characterized anatomatically by generalized fibrotie changes in the lungs, with a development of miliary nodulation,” and which disease petitioner avers was contracted by him during his employment with the respondent. Considerable testimony was offered in behalf of the respective parties, some of which was in sharp conflict as to fact as well as to credibility.

The burden of proof rests upon the petitioner to establish his right to an award of compensation from the respondent.

The petitioner testified that he was regularly employed by the respondent as an electric welder at its plant in Harrison, New Jersey, from June, 1943, to January, 1946; that in the same room in which he worked were chippers, burners and sand blasters; that the sand blasters were but twenty feet from his welding booth, who, in the operation of their sand blasting machines, caused fine sand to permeate the room, bo that the atmosphere appeared muddy; that from time to time during the period of his employment he was compelled to leave the room and go outside in the yard for fresh air; that during the months of September and October, 1945, he began to experience for the first time a faint feeling, chest pains, difficulty in breathing, a general tired feeling and short windedness; that on November 8th, 1945, he consulted Dr. L Glassman of New York City, who, after physical and X-ray examination, diagnosed his case as one of silicosis; and that cm January 15th, 1946, because of the gravity of his condition, he was forced to terminate his employment with the respondent. On cross-examination it was elicited that petitioner had been a coal miner in Pennsylvania from 1932 to 1942, both as an employee of a large coal mining company and as a free lance mine operator.

Dr. Irving L. Appelbaum, a specialist in lung diseases, was the petitioner’s sole medical expert. He testified that he examined and X-rayed the petitioner on February 26th, 1946, discerning the following objective findings: pharynx slightly congested; teeth poor; heart essentially normal; blood pressure 120/78; regular sinus rhythm—rate 75; lungs emphysematous breath.sounds, with few scattered inconstant rales bilaterally; and X-rays disclosing fine linear fibrosis of both lungs with peri-bronchial nodulation and accentuated Hiler areas. In answer to a hypothetical question, the doctor expressed an opinion that the petitioner was suffering from silicosis with bilateral linear fibrosis; that the said disease was due to his last occupation with the respondent during the past three years; and that the petitioner was totally disabled from returning to his last occupation with respondent as a welder. On cross-examination, Dr. Appelbaum conceded that X-rays alone are not diagnostic of silicosis, and that sand blasting may or may not give off particles of sand fine enough to cause silicosis.

Upon the conclusion of the petitioner’s case, respondent moved for a dismissal of the petition on four specific grounds, to wit: (1) that petitioner failed to prove exposure to free silica or to air containing silicon dioxide (Si 02) dust during his employment with the respondent; (1) that he failed to establish the' degree of his incapacity as that of total disability; (3) that petitioner’s occupation was that of a welder, and the proofs failed to show that the disease of silicosis was due to or peculiar to the welding trade, occupation, process or employment therein; and (4) that the petitioner, in absence of conclusive proof in favor of his claim, failed to establish exposure to the inhalation of silicon dioxide dust over a period of not less than five years during the ten years immediately preceding the date of his disablement. A ruling thereon was reserved until the respondent had put in its defense whereupon the motion on the four stated grounds was renewed.

The respondent’s defense was a general denial of Perales’ claim of having contracted silicosis during his employ with the Worthington Pump and Machinery Corporation. In challenging petitioner’s right to a recovery under the statute, three physicians were produced by the respondent, namely, Dr. James B. Jaso, plant physician and a specialist in industrial medicine and surgery; Dr. Abraham B. Jaffin, specialist in chest diseases; and Dr. Thomas J. Ormsby, specialist in lung diseases, whose opinions were diametrically opposite to the one expressed by Dr. Irving L. Applebaum in behalf of the petitioner.

Dr. Jaso testified that he made a pre-employment physical ■examination of the petitioner on June 12th, 1943, and also took X-rays of his chest on June 12th, 1943, and re-X-rayed his chest on January 11th, 1945. He further testified that it was the policy of the respondent-plant to X-ray the chests of all prospective employees with past histories of dust exposure or former mine workers, as well as all employees engaged in welding who were given periodic X-ray examinations of their chests. Dr. Jaso expressed the opinion that X-rays taken of the petitioner were negative for silicosis.

Dr. Jaffin, after inspecting both series of X-ray films, those of Dr. Appelbaum and Dr. Jaso, testified that they depicted practically the same shadows in the chest cavity, indicating good inspiration and expiration. He testified further that Exhibit P-1, one of Dr. Appelbaum’s films, showed a fat man’s chest without any gross pathology. He was of the •definite opinion that Perales was not suffering from silicosis.

Dr. Ormsby testified that he made a physical examination ■of petitioner and also X-Tayed him on October 25th, 1946, which revealed that Perales wss not a victim of silicosis; the X-rays disclosing normal cardiac shadow, normal diaphragmatic shadows, normal angles of the lungs and normal bone structure of the chest; that the lung fields were free of tuberculosis, acute infection, pneumonia or fungus involvement; that there were increased linear markings of both lung fields, indicating some pulmonic scarrings. He concluded from the X-ray standpoint that the film taken by him was essentially a normal film, and that by comparative study of X-rays of Drs. Appelbaum and Jaso, it was his opinion that the pulmonic findings were the same in all films, indicative of searrification of lung tissue. Dr. Ormsby further testified that his physical examination revealed the following: Occupational history—coal miner 1932 to 1943, welder 1943 to 1946, and unemployed 1946 to present time; complaints: shortness of breath, becomes winded upon walking up stairs or walking several blocks, and upon sleeping requires two pillows; objective findings; no evidence of respiratory embarrassment, no dyspnea, no cyanosis, normal sedimentation' test, and normal vital capacity test 3.3 liters. In answer to a hypothetical question embracing the essential facts as developed by the evidence, Dr. Ormsby expressed the opinion that the petitioner did not contract silicosis as a result of his employment at the respondent’s plant, nor was he suffering from the disease of silicosis in any form. On cross-examination Dr. Ormsby testified that the sear tissue of petitioner’s lungs as evidenced by the X-ray films was due to his former occupation of coal miner; and that the disability ascribed to this condition did not exceed 10% of the partial total.

In this posture of the proofs wherein the opinions of the medical experts are so sharply conflicting and irreconcilable,, it becomes-necessary, in order to arrive at a decision, to accept the view which seems the more credible, weighty and reasonable. In my considered judgment, I find that the overwhelming weight of the credible medical testimony preponderates in favor of the respondent’s three physicians to the effect that Perales does not suffer from silicosis. I feel reasonably satisfied, upon a careful consideration of the entire evi-. denee, that the petitioner acquired some form of respiratory affliction as a result of his occupation as coal miner for several years prior to his employ with the Worthington Pump and Machinery Corporation, and that the said respiratory condition, in all probability, may have been affected or aggravated by reason of his welding operations through the inhalation of obnoxious fumes and other atmospheric impurities during the three year employment period with the respondent.

While silicosis admittedly is an1 occupational disease, the silicosis supplement to the statute 34:15-35.1 differs materially from the enumerated occupational disease section of the statute, 34:15-31. Obviously the silicosis supplement sets up its own procedural requirements and limits recovery of compensation to cases of total disability ox where death ensues. The second paragraph of 34:15-34.5 specifically provides: “Neither compensation nor damages shall be payable for partial disability due to silicosis or asbestosis in respect to any employee subject to the provisions of this act.”

The proofs here having failed to disclose that the petitioner is suffering from silicosis in any form, it would appear that the respondent is entitled to a dismissal of the petition on all four grounds as hereinbefore set forth in its motion. Accordingly I am constrained to grant the said motion.

It is therefore * * * ordered that the petition be and the same is hereby dismissed.


author: Del Mas, J.

text:
    Special Statutory Tribunal.
    Case No. 1 BOROUGH OF HASBROUCK HEIGHTS, COMPLAINANT, v. GEORGE O’BRIEN, DEFENDANT. Case No. 2 BOROUGH OF HASBROUCK HEIGHTS, COMPLAINANT, v. FRED MEILER, DEFENDANT.
    Decided June 30, 1948.

      For the complainant, Borough of Hasbrouck Heights, Ralph W. Ohandless.

    For the defendant George O’Brien, Albert V. D’Amato.

    For the defendant Fred Meiler, Raymond H. Flanagan.

   Del Mas, J.

All parties have agreed that the two above-entitled eases should be argued and decided together, the facts and law in both cases being the same.

The two defendants having each been convicted of violating an ordinance of the Borough of Hasbrouck Heights in a summary proceeding and sentenced to ninety (90) days in the county jail, petitioned me for a review of the proceedings.

These are not appeals under R. S. 40:87-42; N. J. S. A. 40:87-42, but are proceedings authorized by R. S. 2:215-7; N. J. S. A. 2:215-7, which provides for a review by the judge of the Court of Common Pleas and not by the court itself. Therefore, the papers should not be entitled in the Bergen County Court of Common Pleas. In passing, it should be noted that the recorder in his record of conviction sets forth the titles of the cases as State of New Jersey, Sergeant Albert Gernert, prosecutor, against the respective defendants. This is also erroneous inasmuch as the charge is a violation of a borough ordinance and the State of New Jersey is not a party to either action.

The defendants have set forth many reasons why, in their opinions, their convictions should be set aside, some having no merit whatsoever and some presenting debatable questions of law. I do not deem it necessary, however, to consider any of them, except those referred to hereafter.

The recorder instead of following the time-honored procedure of setting forth the names of the witnesses with the gist of their testimony, returned that the testimony of the witnesses was -“taken stenographically by Edward Salbin, who was first duly sworn; the transcript of the testimony and proceedings is herewith returned.” My attention has not been called to any statute authorizing the taking of the proceedings stenographically nor the substitution of a transcript of the testimony and proceedings in lieu of including a statement of the substance of the evidence as a part of the conviction and, in the absence of any such authority, the transcript cannot be considered by me in arriving at a decision. The result is that there is no evidence legally returned to this court and the conviction must, therefore, be set aside. See Esping v. Elizabeth Society P. C. C., 79 N. J. L. 357; 75 Atl. Rep. 547; Elizabeth v. Central Railroad Co., 66 N. J. L. 568; 49 Atl. Rep. 682; Rothman v. State, 102 N. J. L. 43; 130 Atl. Rep. 888; State v. De Maio, 69 N. J. L. 590; 55 Atl. Rep. 644; affirmed, 70 N. J. L. 220; 58 Atl. Rep. 173.

At the trial before the recorder, as indicated by the so-called transcript of proceedings, defendants’ counsel attempted to enter a special appearance and to show, by an examination of the witnesses produced on behalf of the borough, that the warrant for defendants’ arrest was issued before the complaint had been sworn to. This transcript was not made by virtue of any order or rule of this court and, since the transcript cannot be used as a substitute for a proper record of conviction, I think it is also improper that it should be used for the purpose of attacking the validity of the conviction. I know of no authority for such practice and none has been called to my attention.

There is a still stronger reason why the proceeding should be set aside. The complaint was made by a sergeant of police of the Borough of Hasbrouck Heights and the jurat sworn to before someone whose name I cannot read, but who signs it as borough recorder; there is a seal annexed which is also unreadable; no court is mentioned; and it is not said that any ordinance of the Borough of Hasbrouch Heights has been violated. If the part of the complaint which alleges a violation of the statutes in such case made and provided be treated as surplusage and assuming that it was intended to charge a violation of section 17 of Ordinance No. 418 of the Borough of Hasbrouck Heights, even then a reference to such section of such ordinance clearly shows that the complaint does not set forth any violation thereof. The complaint alleges that the defendants did each violate:

“Ordinance No. 418, Section 17, in that the defendant did and within the jurisdiction of this court, willfully and unlawfully did make and take what is commonly known as a book, upon the running of horses, mares, and geldings, contrary to the form of the statutes in such case made and provided, and against the peace of the state.”

Section 17 of ordinance 418 of the Borough of Hasbrouek Heights reads as follows:

“Ho person shall set up, keep or maintain in any house or premises a faro table, faro bank, roulette or other device or game of chance hazard or address for the purpose of gambling for money or other valuable thing, and no person shall deal, play or engage in faro roulette, or other device or game of chance or address, either as banker player, dealer or otherwise for the purpose of gambling.”

“Bookmaking” was defined by the Court of Errors and Appeals, in the case of State v. Morano, 134 N. J. L. 295 (at p. 299); 47 Atl. Rep. (2d) 419, 422, as follows:

“The making or taking and recording or registering of bets or wagers on races and kindred contests.”

The ordinance in question says nothing about bookmaking or betting on horses in so many words. It first prohibits “a faro table, faro bank, roulette or other device.” The purpose of this part of the ordinance was evidently to forbid the use of certain apparatus used for gambling. Hnder the familiar rule of construction noscitur a sociis the words “or other device” must be referred to what precedes it in the ordinance. A “book” is not a device for gambling—it is the means for recording bets which have already been made. It is the evidence of gambling rather than the device for gambling and it is not, in itself, a game of chance, hazard or address. The latter part of the ordinance prohibits a person from “dealing, playing or engaging in faro roulette, or other device or game of chance or address, either as banker player, dealer or otherwise for the purpose of gambling.”

The complaint does not allege that the defendants did any of these things.' For all that appears, the bets may have been made and the gambling done by other people. If it was intended to allege that the defendants made bets on horses at the address in question, and thereby indulged in a game of chance, the complaint could have so stated in very simple and easily understood words.

The rule of law governing the interpretation of complaints or informations in summary proceedings has been variously stated. Hawkins says, in Book II of his “Pleas of the Crown ” ch. 26, § 4:

“That seeing an information differs from an indictment in little more than this, that the one is found by the oath of twelve men, and the other is not so found; but is only the allegation of the officer who exhibits it, whatsoever certainty is requisite in an indictment, the same at least is necessary also in an information, and consequently, as all the material parts of the crime must be precisely found in the one, so must they be precisely alleged in the other, and not by way of argument or recital.”

An examination of the English authorities shows that the views which Sergeant Hawkins expressed have been applied not only to those informations which were preferred by the Attorney-General in criminal matters, but also to those informations which formed the foundation of summary proceedings. See Rex v. Trelawny, 1 T. R. 222; 99 E. R. 1062; Rex v. Edwards, 1 East. 278; 102 E. R. 108; Rex v. Corden, 4 Bur. 2279; 98 E. R. 189; Rex v. Mallinson, 1 Bur. 679; 97 E. R. 509, and Paley (9th ed.) 479, under title, “Description of the Offense.”

The requirement of certainty in relation to indictments has been time and again passed upon by our Court of Errors and Appeals and may be found by an examination of the opinion of Chief Justice Beasley in Linden Park Horse Association v. State, 55 N. J. L. 557; 27 Atl. Rep. 1091, and by another opinion of the same court written by Mr. Justice Heher in the recent case of State v. Morano, 134 N. J. L. 295 (at p. 296); 47 Atl. Rep. (2d) 419.

The various learned judges who have considered the problem in reported cases in New Jersey, in relation to complaints in summary proceedings, have differed in their expression of the law. The cases may be divided into three classes:

(1) Those where it was said that the rules of construction should he the same as those applied in indictments in criminal proceedings. In this class is the case of Sparks v. Stokes, 40 N. J. L. 487 (at p. 491).

(2) Those in which it was said that there should be a greater strictness in the case of complaints in summary proceedings than in the case of indictments. In this class, following Chitty’s Criminal Law, is the case of Doughty v. Conover, 43 N. J. L. 193 (at p. 196).

(3) Those in which it was said that a lesser degree of strictness is necessary in the case of complaints in summary-proceedings than in the ease of indictments in criminal matters. In this class is the case of Dziatkiewicz v. Township of Maplewood, 115 N. J. L. 37 (at p. 40); 178 Atl. Rep. 205. However, the same learned justice who wrote that opinion-said, in Haviland v. Egan, 11 N. J. Mis. R. 799 (at p. 801); 168 Atl. Rep. 171, 172:

“The compaint should state with legal certainty the offense-alleged” and that “Nothing is presumed or intended in favor of a [sic] validity of a complaint or of a conviction had thereon, the ordinance being penal and the proceeding summary.”

And again in State v. Rowe, 116 N. J. L. 48 (at p. 51); 181 Atl. Rep. 706, he questioned, without the court deciding, whether a complaint in a summary proceeding of a quasi-criminal character need measure up to the exactness of an indictment in a criminal procedure.

In the matter of indictments, since bills of particulars have come into more common usage there has been a tendency on the part of the courts to be more liberal in sustaining their validity and to relax to some extent the strictness with which they were interpreted at common law. Perhaps, also, there-has been some slight relaxation of the strictness of interpretation to be given to complaints in summary proceedings, but,, if so, there would seem to be no good reason to doubt the-wisdom of the rule asserted by Sergeant Hawkins. Since bills of particulars are not allowed in summary proceedings, the necessity for setting forth the facts constituting the complaint is, if anything, stronger than in the case of an indictment.

A study of the many decisions reported in the New Jersey Keports, including those referred to in this opinion, leads me-to the belief that all of the judges who have expressed their opinions entertained similar views as to the certainty required of a complaint, and that when those views are applied to a particular set of facts, no matter how the rule is expressed, the result is about the same. I have, however, come to the following conclusions:

(1) That whatever facts are necessary to be alleged in an indictment, must also be alleged in a complaint in a summary proceeding.

(2) That because officials who prepare such complaints are not required in many cases to be learned in the law and are not expected to be familiar with legal terminology, a complaint in a summary proceeding, although not prepared with, technical nicety, is sufficient if it states with legal certainty the offense with which the defendant is charged.

(3) That because the statutes of jeofails and amendments do not apply to complaints in summary proceedings and the judges who are authorized to try such cases are not empowered to grant bills of particulars, in many cases there should be a greater strictness than in the ease of indictments.

Judged by any of the rules of interpretation hereinbefore set forth, it is my opinion that the complaints in the actions under consideration are insufficient to properly apprise the defendants with that of which they stood charged and, therefore, the proceedings were illegal and are herewith set aside and the defendants hereby discharged from custody.


author: Leyden, C. O. J.

text:
    MARGARET BURNS AND KENNETH H. BURNS, PLAINTIFFS, v. ROSS VILARDO AND ISRAEL FEIGENOFF, DEFENDANTS.
    Decided July 8, 1948.
    For the plaintiffs, Ohandless, Weller <£ Kramer.

    For the defendants, Morrison, Lloyd & Griggs.

   Leyden, C. O. J.

The matters in difference between the parties are at issue and the case is ripe for trial. It comes within the blanket order of reference of Supreme Court issues for disposition at Circuit. The defendants, pursuant to rule 40 of the Supreme Court, N. J. S. A. tit. 2, now move before trial for the determination of a reserved point of law, the favorable determination of which, it is said, will be dispositive of the whole matter, and as a preliminary thereto also move for the striking of the reply as sham.

The plaintiff Margaret Burns sues for personal injuries which she says she suffered by reason of alleged malpractice of the defendants, who are physicians and surgeons, in the diagnosis and treatment of two injured fingers of her right hand. Her husband, Kenneth H. Burns, seeks damages for the consequential loss he alleges he suffered by reason of the said injury to his wife including the sum expended in the endeavor to cure her of her injuries and for the loss of her society and services. The complaint on its face sets forth causes of action for malpractice. There is no allegation that the negligence of the defendants was an intervening, independent act which resulted in injury not connected with the industrial accident. The answer denies any carelessness, negligence or malpractice in the treatment of Mrs. Burns’ injury and as a separate defense sets up that the plaintiff was awarded and accepted compensation pursuant to the New Jersey Workmen’s Compensation Act, N. J. S. A. 34:15-1 et seq., for any and all injury she received. The answer further raises and reserves the question of law that the plaintiff, by virtue of her acceptance of the compensation so paid, is barred from maintaining the present action against the defendants. The reply denies the payment and receipt of the compensation award. This denial is unsupported and is obviously sham. There was no dispute on this point at the argument. The reply, therefore, will be stricken, thus clearing the way for the determination of the reserved point of law.

The undisputed facts of the matter as gathered from the motion papers and the argument substantially are that on February 8th, 1945, Margaret Burns, while an employee of the Wright Aeronautical Corporation, received an injury to the index and second fingers of her right hand arising out of and in the course of her employment. She was taken immediately to the defendants, the plant physicians, and received medical treatment from them for the injury until April 16th, 1945. Some time later she became dissatisfied with the manner in which the fractured bone in the finger was reduced by the defendants and had the job re-done by a physician and surgeon of her own selection whose bill for such services was paid by the employer as part of the compensation award.

Subsequently application was made by the plaintiff for compensation under the New Jersey Workmen’s Compensation Act and approximately six and one-half months after her injury and on August 24th, 1945, was awarded compensation for temporary disability from February 9th, 1945, to May 20th, 1945, and from May 27th, 1945, to and including August 15th, 1945, for a period of twenty-six weeks at $20 per week. In addition, compensation for permanent disability was awarded as follows: 15% right first finger—six weeks; 75% right second finger—twenty-two and one-half weeks, or twenty-eight and one-half weeks at $20 per week. Payment was made and the awards accepted by the plaintiff.

Assuming, but only for the purposes of the discussion, that the defendants were negligent in the treatment of plaintiff’s injured fingers, that negligence simply aggravated the original industrial injury. There was no break in the chain of causation, no “nows actus interveniens” which would relieve the employer from making payment for the increased disability, if any, caused by the aggravation. The second injury, the aggravation, if any, came in the immediate sequence of events. The employer was responsible in compensation for the whole injury to the plaintiff as determined at the time of the making of the award on August 24th, 1945. Flanagan v. Charles E. Green & Son, 121 N. J. L. 327; 2 Atl. Rep. (2d) 180; affirmed, 122 N. J. L. 424; 5 Atl. Rep. (2d) 742. As was pointed out by the Court of Errors and Appeals, 122 N. J. L. (at p. 426) ; 5 Atl. Rep. (2d) (at p. 743), there is no distinction, in so far as compensation is concerned, between disability arising from negligent treatment of the original injury resulting in its aggravation and a wholly independent-injury. The ultimate disability is classable as resulting from the first injury in that it came about through treatment of that injury and was directly connected therewith. The original industrial mishap and its assumed aggravation by the defendants should therefore be classified as one and the same compensable injury.

The Workmen’s Compensation Act, if its terms are accepted by the employer and employee, imposes liability for compensation on the employer regardless of fault and provides an exclusive remedy to employees for accidental injuries arising out of and in the course of employment. The remedy is in substitution of any right to any other method, form, or amount of compensation. R. S. 34:15-8; N. J. S. A. 34:15-8; Gregutis v. Waclark Wire Works, 86 N. J. L. 610; 92 Atl. Rep. 354. In accordance therewith, full compensation has been paid by the employer and accepted by the plaintiff for the disability attributable .to her original injury. She is entitled to but one satisfaction for that injury.

It is important to note that the original injury was not caused by the act of a third party tort feasor, other than the employer, and for which wrong the employee would have a remedy for the recovery of damages. Here, at best, the injury was aggravated by the alleged negligence of the plant physicians. Since the original, substantive injury was not caused by the defendants, the case does not come within the rule permitting an employee to recover damages from a third party tort feasor. The remedy provided by the Compensation Act is exclusive and any aggravation of the original injury not caused by an independent, intervening act is considered compensable. Therefore the plaintiff’s alleged right of action for negligence against the plant physicians is abrogated.

The rights of Kenneth H. Burns for his alleged consequential loss are derivative and depend upon the validity of the claim of his wife. His cause of action falls with that of his wife.

This determination in favor of the defendants is decisive of the whole case. A postea may be prepared containing the factual background, the determination of the point of law, and a finding in favor of the defendants and against the plaintiffs of no cause of action.


author: Martino, D. C. J.

text:
    Camden City District Court.
    ELIZABETH J. VOGEL, PLAINTIFF, v. CHARLES A. LOTZ, DEFENDANT.
    Decided August 6, 1948.
    For the plaintiff, Le Boy Goblin and William H. Farr.

    For the defendant, Waller 8. Feown and Samuel P. Orlando.

   Martino, D. C. J.

The plaintiff instituted suit for the recovery of a fee paid to the defendant for services rendered by him. The defendant was the district supervisor of the State Transfer Inheritance Tax Department of the State of New Jersey when he rendered the alleged services to the plaintiff. The plaintiff had met the defendant by prearrangement at a Camden bank where she had gone to examine with the defendant the contents of the safe deposit box of her late husband who died on February 2d, 1945. Following an examination of the contents of the safe deposit box, the defendant filled out an inheritance tax return for the plaintiff and advised her-to go to the surrogate’s office of Camden County so that she could qualify as administratrix of her husband’s estate. He had also advised her that in order to arrange for the transfer of her husband’s automobile it would be necessary for her to visit the Office of Price Administration.

Subsequently she visited the office of the defendant who advised her that she should have a will. The defendant did not draw the will in her presence and on her next visit to his office the will was ready for execution. On the day that she executed the will the defendant told her that his fee was $100 for services rendered. The plaintiff never questioned the amount of the fee nor offered any objections to the payment of same. It appears from the testimony that the defendant’s right to payment was challenged only after she had talked with her attorney a few months after she had given the defendant a check. She admitted on cross-examination that she “Didn’t know or suspect that anything was wrong,” and she admitted on cross-examination that she was perfectly satisfied to pay the $100.

The plaintiff maintains that the defendant was not entitled to any payment since any work he did toward preparing the inheritance tax return was in connection with his duties as inheritance tax supervisor and to receive payment for these services would be contrary to R. S. 54:34-8; N. J. S. A. 54:34-8. This statute makes it a misdemeanor for an appraiser to take a fee or reward either directly or indirectly from an executor or administrator or any other person liable to pay a tax or any portion thereof. It further provides that the State Tax Commissioner shall immediately dismiss the appraiser so offending from his employment. Plaintiff further maintains that since defendant was not an attorney-at-law his preparation of the will made him guilty of a violation of R. S. 2 :111-3; N. J. S. A. 2 :111-3, in that he was engaged in the practice of law.

If the defendant had sued the plaintiff to recover the value of the services he rendered such a claim might be repulsive to our statutes. The law seems to be settled that such an action might be considered against public policy. Since a •case of this type is affected with a public interest our courts have been zealous in their efforts to protect that public interest. Our courts have already intimated that one who has unlawfully practiced law cannot recover compensation therefor. Morris v. Muller, 113 N. J. L. 46; 172 Atl. Rep. 63; Gionti v. Crown Motor Freight Co., 128 N. J. L. 407; 26 Atl. Rep. (2d) 282.

On the other hand, the courts have been reluctant to permit the recovery of any payment which in the opinion of the court is voluntary. The law seems to be settled that where a person without mistaking the facts and without fraud or coercion pays a demand which is unenforceable against him (italics supplied) the payment is a voluntary payment and cannot be recovered back. Camden v. Green, 54 N. J. L. 591; 25 Atl. Rep. 357, 358; Magna Manufacturing Co. v. Aetna Casualty Insurance Co., 129 N. J. Eq. 142; 18 Atl. Rep. (2d) 565.

In McCrory Stores Corp. v. S. M. Braunstein, 99 N. J. L. 166; 122 Atl. Rep. 814, where a tenant confronted with a •demand for rent claimed by it to be in excess of that provided in the lease and being threatened with legal proceedings to enforce such a demand, paid the amount demanded and later brought suit to recover back the alleged excess the payment was declared voluntary and a verdict for the defendant was rightly directed. Our highest court significantly stated:

“In the case at bar the landlord’s claim was either legal or illegal. If legal, plaintiffs wure, of course, bound to pay it. If illegal, they were entitled to 'resist it in a judicial proceeding.”

Where the payer has an alternative course consistent with -a denial of the validity and enforceability of the claim, the payment is regarded in law as voluntary and is therefore not recoverable. Sutton v. Metropolitan Casualty Insurance Company of New York, 117 N. J. L. 21; 186 Atl. Rep. 465.

The payment sought to be recovered was certainly free from the taint of duress or other compulsion as a reading of the testimony will clearly indicate. Duress is aptly defined in Koewing v. Town of West Orange, 89 N. J. L. 539; 99 Atl. Rep. 203, as follows:

“The duress for which a person may avoid any contract or conveyance made, or recover back any money paid under its influence, exists where one by the unlawful act of the beneficiary or his authorized agent, or by the act of some person with his knowledge, is constrained under circumstances which deprive him of the exercise of free will to agree or to perform, the act sought to be avoided.”

It is a well settled and a universally recognized general rule that money voluntarily paid under a claim of right where the payer feels an obligation to pay for some services rendered even though a suit for the services might not avail the payee any recovery, the person making the payment or affected by it cannot recover it back on the ground that the asserted claim was invalid or unenforceable.

Therefore a verdict in favor of the defendant of no cause for action shall be entered.


author: Dee wen, C. P. J.

text:
    Hudson County Court of Quarter Sessions.
    IN THE MATTER OF THE ORDER OF FILIATION AGAINST HAMILTON GORDON EL.
    Decided July 29, 1948.

      Por the appellant, Harry Krieger.

    Por the City of Jersey City, Charles A. Rooney (Paul C.. SupinsM> of counsel).
   Dee wen, C. P. J.

This appeal is from an order of filiation made upon the verdict of a jury in the Pirst Criminal Court, of Jersey City. R. S. 9:17-30; N. J. S. A. 9:17-30.

The ease was tried January 9th, 1948, the birth of the child' having occurred October 16th, 1947. Appellant was born December 6th, 1930, so that he is still within the age limit of eighteen years as defined in the Juvenile and Domestic Eelations Court Act, R. S. 9:18-13 as amended; N. J. S. A. 9:18—13.

If the illicit begetting of child in circumstances rendering one amenable to our bastardy law is an act of delinquency within the provisions of the cited statute, it follows that the Juvenile and Domestic Eelations Court has jurisdiction in all consequent proceedings. This contingent proposition the City of Jersey City concedes, but it denies that the facts here do present a delinquency within the intent and meaning of' the act, and it claims further that assuming they do, jurisdiction of the Juvenile Court is not exclusive but concurrent with that of the criminal courts of the city. There are thus two questions to be decided. Is the alleged misconduct of this defendant a delinquency in the indicated sense? If so,, is the jurisdiction of the Juvenile Court in the premises exclusive or concurrent? Upon the trial below the jurisdiction of the court was challenged from the outset.

Juvenile delinquency is declared by the statute in question to be “any act which when committed by a person of the age' of eighteen years or over would constitute * * * any act or offense for which he could be prosecuted in the method of [sic] partaking of the nature of a criminal act or proceeding.”' R. S. 9:18-13 as amended.

At the outset and in passing it might be observed that for the offense of fornication, ingredient in the episode alleged» this appellant certainly "could he prosecuted in the method” described; and further that the fixing and enforcing of obligations incident to the illegitimate birth are within the authority of the Juvenile Court. It would seem that this alone should decide the first question; but we need not rest here.

The briefs submitted are in large part given to a discussion of the correct and proper designation of proceedings of this kind, whether they are civil or criminal, or quasi in the one class or the other. But the denomination applied by our appellate courts in decisions on the point appears uniformly to depend upon the nature of the question presented; that is, the proceedings are to be thought of as gMasf-eriminal for some purposes and as quasi-civil for others. The Court of Errors and Appeals in Montclair v. Eason, 92 N. J. L. 199; 104 Atl. Rep. 291 (Mr. Justice Parker), said: "It may be conceded that bastardy proceedings are sometimes characterized as criminal or gwasi-criminal in character, but usually they are held to be in the nature of civil proceedings. * * * In this state it seems to be settled that they are civil or at least quasi-civil. (Montclair v. Eason, 92 N. J. L. 199; 104 Atl. Rep. 291.)” To show complete absence of category we need nothing more than the quoted statement. In the city’s brief the proceedings are spoken of as "essentially civil.” In Thatcher v. Hackett, 16 N. J. Mis. R. 459; 1 Atl. Rep. (2d) 438, the court considers the element of conflict between the legislative grant of appellate jurisdiction to the Quarter Sessions, a criminal court, and the pronouncement in Montclair v. Eason, supra. In Dally v. Overseers of Woodbridge, 21 N. J. L. 491, the question was whether character evidence, admissible ordinarily only in a criminal case, was proper under a charge of bastardy. Such evidence had been excluded at the trial on the ground that it is allowable only in a criminal case. The Supreme Court reversed and declared the case to be "not strictly civil” so as to exclude character testimony. See, also, Hawkins v. State, 21 Id. 630. So, there is nothing to be gained by attempts at classification.

Here we have a law of fundamental social and moral purpose, drastic in its remedial design. The problem and the test of the law’s application, manifested in the clear concern of particular sections and throughout, is the protection of pliant youth against demoralizing reproach as a consequence of infraction. Its major care is for the quality of the judicial and corrective environment in which youth is to be placed when its delinquency necessitates the public processes of inquiry and discipline. And in order that there be neither hurt nor hardening, all avoidable external shame of the culprit is to be obviated by the means and in the manner which the statute devises. The only exception to this broad policy thus far pronounced by our law is in the extreme instance of a capital ease. State v. Smigelski, 137 N. J. L. 149; 58 Atl. Rep. (2d) 780; In re Mei, 122 N. J. Eq. 125; 192 Atl. Rep. 80; In re Daniecki, 119 N. J. Eq. 359; 183 Atl. Rep. 298.

The act shall be liberally construed for the accomplishment of its purpose. R. S. 9:18-1; N. J. S. A. 9:18-1. It expressly makes children, that is juveniles within its jurisdiction, the wards of the state (R. S. 9:18-3; N. J. S. A. 9:18-3); and provides further that “children who appear before the court in any capacity shall be deemed to be wards of the court and protected accordingly.” R. S. 9 :18-20; N. J. S. A. 9:18-20. The ascertainment at any stage that one concerned as culprit in any criminal or ^msi-eriminal matter is a juvenile shall require the immediate transfer of the case to the Juvenile and Domestic Delations Court (R. S. 9 :18—16; N. J. S. A. 9:18-16). Cases involving juveniles shall be heard separate and apart from those involving adults and without the assistance of counsel. Trials shall be without jury and the accused shall at all times be segregated and protected against contact with adult offenders (R. S. 9 :18-25; N. J. S. A. 9:18-25). Transportation from place to place shall be by means other than the usual and ordinary police equipment employed in the transportation of adults. R. S. 9:18-25; N. J. S. A. 9:18-25.

So much for spirit and purpose. Now what are some of the things by which a bastardy proceeding may be said “to partake of a criminal action?” They are readily multiplied. To begin with, the bastardy law provides for suit in the criminal court of the city or other municipality and for appeals to the Quarter Sessions by trial de novo, with a jury. R. S. 9:17—1, 20; N. J. S. A. 9 :17-1, 20. Its initial process is a warrant of arrest executed by a police officer. R. S. 9 :17-4; N. J. S. A. 9 :17-4. For the release of the accused pending trial bail is required. R. S. 9:17-6; N. J. S. A. 9:17-6. In default of surety, commitment may be to the common jail of the county (R. S. 9:17-10; N. J. S. A. 9:17-10); and there are the like provisions in the event of conviction and default of performance bond for the commitment of the accused. Nothing more than this sequence of penal features in a bastardy case should be required to show a “method partaking of the nature of a criminal action or proceeding.” The city responds to this by urging that the procedural steps recited are not more peculiar to bastardy proceedings than they are to purely civil issues whose non-relation to the Juvenile Court Law cannot be questioned and whereunder the same procedural incidents are to be found, such as initial arrest and holding to bail and ultimate commitment. But this contention is not in point. The only relevant inquiry here is whether there are features in the case before us that bring it within the statutory meaning and intent and not whether the same features are to be found in other eases clearly beyond the purview of the problem.

There is a further compelling consideration. The statute gives heed not only to misdeeds of a criminal nature but also in the most general terms to the very earliest signs of the wayward trend. Idle roaming of the streets at night, truancy, growing up in idleness, incorrigibility and any deportment endangering the morals, health or general welfare of a juvenile (R. S. 9:18-12; N. J. S. A. 9:18-12). In discerning the bad potency of the misbehavior described and remembering that the juvenile period extends to the age of eighteen years, who can with good sense doubt that illicit juvenile paternity must be included in the apprehended consequences ? Certainly it must be included in “deportment endangering the morals * * * or general welfare of a juvenile.” And where illicit juvenile paternity has ensued, as it is claimed to have ensued here, we are surely not free to suppose that this corrective social law, because it has so far failed of its preventive purpose in a given ease, should be thereupon intended to apply no further. While the offender remains a juvenile he continues within the purpose and design of the Juvenile Law, not only for correction of delinquency already committed, but for his protection against still further decline. The statute marks no stage and takes no occasion for the abandoning of erring youth to its error.

Reverting to the element of fornication, it is to be observed that were there to be the distinction for which the city contends between that offense and a charge of bastardy, it could only be on the ground of the aggravated personal and social harm involved in the latter instance; but it is this very ground that would in reason and conscience operate not to remove the case from the Juvenile Court but more definitely to keep it there.

By way of argument the city asks a question. Should it be determined that the Juvenile Court jurisdiction is exclusive, “what would become of the right of appeal on trial de novo which would lie naturally in courts outside of Juvenile Courts ?” The answer is that juvenile defendants in bastardy cases are entitled to the same right of review as juvenile defendants in all other cases.

It is the judgment of this court that the charge now dealt with involves delinquency that clearly brings the case within the jurisdiction of the Juvenile Court.

For its claim that the jurisdiction of the Juvenile Court is concurrent only the city relies on R. S. 9:18-14; N. J. S. A. 9:18-14. This, statute gives the' Juvenile Court concurrent jurisdiction with other courts in bastardy cases, without restriction as to age, but it concedes nothing of the peculiar and exclusive jurisdiction of the Juvenile Court over juvenile delinquents.

The exclusive jurisdiction given by R. S. 9 :18-12; N. J. S. A. 9:18-12, applies in the present ease.

For the reasons stated the action of the First Criminal Court of Jersey City in making the order of filiation appealed from is reversed.

There is also raised the question of res judicata. It appears from statements in appellant’s brief that prior to the trial in the Criminal Court of the city the same issue was heard by the Juvenile Court, upon sworn complaint and resulting in dismissal. The point is argued for appellant at some length and authorities cited. To this the city makes no other response than the mere assertion that in the case previously heard the parties and the issues were different. Heedless to say, the question of res judicata cannot be decided without determining whether or not there was sufficient identity of parties and issues in the two trials. However improbable we may regard the existence of valid ground for the city’s denial of such identity, the fact remains that there is before us no record of the Juvenile Court proceedings by which the basic determination can be made. The court simply cannot be put in the position of deciding the question as if it were no more than a controversy between counsel over the facts.