author: Herb, A. M.

text:
    Helen C. Maloney, petitioner, v. Edwin J. Maloney, defendant.
    [Decided March 21st, 1934.]

      Mr. John Milton, appearing specially for the defendant.

      Messrs. McCarthy & McTague, for the petitioner.
   Herb, A. M.

On February 18th, 1931, Helen C. Maloney filed her petition in this cause for an absolute divorce from the defendant, Edwin J. Maloney, on the ground of desertion. The petitioner was then and still is a bona fide resident of Hew Jersey. Jurisdiction for the purpose of the divorce was acquired by publication, followed by notice without the state, as service substituted for personal service of process within the state.

The defendant did not appear, and the allegations of the petition were proved ex parte before a special master, who found that the parties were married on October 11th, 1924; that there was one child born of the marriage, a girl of five years of age at the time of filing the petition; that the defendant deserted the petitioner and their child in the month of July, 1926, ever since which time his desertion had been willful, continued and obstinate, and that the petitioner was a bona fide resident of Hew Jersey when said cause of action arose and had ever since and for more than two years preceding the commencement of the action continued to be such bona fide resident. A decree nisi was duly entered on March 22d, 1932, in favor of the petitioner, which decree recited that jurisdiction over the defendant had been acquired by publication and notice without the state, as aforesaid. By final decree entered on June 23d, 1932, the decree nisi was made absolute, the parties divorced from the bonds of matrimony, and the marriage dissolved.

The petition contained no specific prayer for alimony of the wife or maintenance of the child. Neither the decree nisi nor the final decree made such provision. No application was made at any time for alimony or maintenance until September 13th, 1933, when the petitioner filed a petition in the cause setting forth the facts hereinabove stated and alleging further that she is without funds to properly support herself and the child and has no income except such as is derived from her own exertions; that defendant is not a resident of New Jersey and cannot be found within this state for the service of process; that defendant has recently become entitled, as next of kin of his uncle, to a distributive share of his uncle’s estate; that said uncle died domiciled in New Jersey and his estate is in process of administration in New Jersey, by reason whereof the defendant has property within this state; and that defendant’s means are amply sufficient for him to raise and pay such sums as may be necessary for the support of the petitioner and their child. The petition prays that an order may be made for permanent alimony for the petitioner and for the payment of a reasonable amount for the support, maintenance and education of the child; that a writ of sequestration issue to compel defendant’s appearance and performance of such order as may be made; that defendant and the administrators of his uncle’s estate be restrained from dealing with the defendant’s property in such manner as to defeat petitioner’s claims, and that a receiver be appointed.

I'pon the filing of this petition, duly verified, an order was made herein on September 13th, 1933, that a writ of sequestration issue against the defendant, directed to a master in chancery, ordering him to immediately sequester the defendant’s estate, &c., restraining the defendant from encumbering, pledging or transferring any of his property within this state, and restraining the administrators of the uncle’s estate from selling, delivering or turning over to the defendant or any other person any or all of the estate, real or personal, &c., to which the defendant is entitled.

On September 14th, 1933, a writ of sequestration was issued pursuant to said order, which was executed as therein directed.

By leave of the court, the defendant, Edwin J. Maloney, appears specially for the sole purpose of attacking the jurisdiction of the court to make the order of September 13th, 1933, and to issue the writ of sequestration; and argues that the court derives its jurisdiction in the matter solely by statute, that the Divorce act does not make any such provision and that the 1919 supplement to the Chancery act, known as the- Sequestration act, cannot be invoked by the petitioner to authorize the order and writ because a claim for alimony is not within the defined purpose of the 1919 act, because it is a general act and cannot be deemed to amend the prior Divorce act which is a special act, because the title of the 1919 act is not sufficiently broad to permit a construction of it to include alimony claims without contravening article 4, section 7, paragraph 4 of the New Jersey constitution, and finally because to so construe the 1919 act would violate the due process of law provision of the fourteenth amendment to the United States constitution.

By virtue of the Divorce act (P. L. 1907 p. 474; 2 Comp. Stat., p. 2021) this court has jurisdiction to award permanent alimony, as well as maintenance for the children of the marriage in the wife’s custody, on the wife’s application after final decree for divorce in her favor, although her petition for divorce does not pray for alimony or maintenance and although the final decree is silent thereon. McKensey v. McKensey, 65 N. J. Eq. 633; Sweeney v. Sweeney, 95 N. J. Eq. 192; Sobel v. Sobel, 99 N. J. Eq. 376; Smith v. Smith, 88 N. J. Eq. 319.

While the court derives its substantive jurisdiction over divorce, maintenance and alimony, solely from the Divorce act (Anon., 24 N. J. Eq. 19; Hervey v. Hervey, 56 N. J. Eq. 424), and while that act prescribes special forms of process and modes of procedure, it was not the legislative intent to limit thereby the court’s remedial powers in dealing with such matters, for by section 9 it is provided that “the like process and procedure shall be had and pursued in all such causes as are usually had and pursued in other causes in the court of chancery, except so far as other process and procedure is prescribed by or under the authority of this act.”

In suits for divorce or nullity as distinguished from suits for maintenance under section 26, the writ of sequestration is not prescribed as original process by the Divorce act. Section 25 (amended P. L. 1933 p. 296) authorizes the issuance of the writ pending a suit for divorce or nullity or after decree for divorce only in execution of an order or decree for alimony. In this respect it is in contrast with section 26, which provides that the writ may issue as original process in maintenance suits. No sound reason for the distinction is apparent. It seems to have arisen through oversight rather than by design. But in view of section 9 the omission is not important if the court have power to issue writs of sequestration as original process in other equity causes.

Such power is expressly granted by the 1919 supplement to the Chancery act, known as the Sequestration act. P. L. 1919 p. 444. By section 1 of this supplement it is provided that “in any proceeding commenced in the court of chancery in which a money decree is prayed against a defendant and it shall be made to appear, by affidavit, that the defendant is a non-resident and has property * * * within this state, the court may, upon the filing of the bill or petition or at any time thereafter, issue its writ or writs of sequestration. * * *.”

If this court prior to the 1919 supplement lacked authority to issue the writ of sequestration as original process in a proceeding such as the present, the supplement affords such authority unless one or more of the objections raised by the defendant are to prevail. He argues that the petitioner does not by her proceedings in this case bring herself within the terms of the supplement, because her original petition for divorce does not contain a prayer for alimony, her subsequent petition for alimony, filed after decree, being only incidental to the earlier proceeding: in other words, because her original pleading is not specific, within the rule of Grobholtz v. Mervel Mortgage Investment Co., 115 N. J. Eq. 411.

There is no merit in this contention. Alimony follows the divorce. It need not be specifically prayed. Had the defendant been served with citation the decree could have provided alimony. Such is the common practice. The petition of September 13th, 1933, served to lay the foundation not of the proceeding for alimony, but of the issuance of the writ of sequestration as mesne process in the suit. So far as the court now has jurisdiction to decree alimony (in rem) it derives the same from the seizure of the defendant’s New Jersey property under the writ. In this sense the writ is original process, although issued as mesne process in the divorce suit. The fact that the original petition does not expressly pray for a “money decree” against the defendant does not keep it from falling within the 1919 supplement; impliedly a money decree is prayed for in every divorce petition filed by a wife, even where no prayer for further relief is included; a fortiori where, as here, there is a prayer for further relief. McKensey v. McKensey, supra.

The defendant next argues that a proceeding of the kind now before the court is not within the defined purpose of the 1919 supplement, because a proceeding for alimony cannot be considered as a “proceeding in which a money decree is prayed.” This would be too narrow a construction. ■

The supplement, by section 15, provides as follows:

“This act is remedial and is to be liberally construed. Its purpose is to subject the property of non-residents to the satisfaction of claims cognizable in a court of equity in analogy to attachment proceedings at law. Errors of form or substance which do no substantial damage are not to vitiate the proceedings, and the court may, at any stage of the proceedings, permit amendments, &e.”

And by section 17:

“The chancellor may make such rules or special orders as he deems necessary for the effectual carrying out of the purpose of this act, and may prescribe the form of writs, notices, process, &c.”

In the case of Frank v. H. E. Salzberg Co., 102 N. J. Eq. 107, Vice-Chancellor Tallón held that this statute authorizes sequestration in any chancery proceeding for a money decree against a non-resident with property in this state.

In Swetland v. Swetland, 105 N. J. Eq. 608, Vice-Chancellor Berry observed that the Sequestration act contains no limitation on the type of equitable action in which a sequestration writ may issue other than that a money decree be sought, and that it is remedial and is to be liberally construed to effectuate its purpose, which is to subject the property of non-residents to the satisfaction of claims cognizable in a court of equity in analogy to attachment proceedings at law.

Alimony, while not a property right, is “a personal right.” It is “imposed as a personal duty upon the husband for the personal benefit and support of the wife, or of the wife and children, in case there be children.” It is a “means of enforcing the continuing duty of support which the husband owed to the wife, and of which he was not permitted to absolve himself by his own misconduct * * Lynde v. Lynde, 64 N. J. Eq. 736. It is a “claim cognizable in a court of equity,” by virtue of the Divorce act, and within the meaning of section 15 of the Sequestration act.

To hold otherwise would not be carrying out the legislative direction contained in section 15, requiring a liberal construction of the supplement and (if the court’s authority is rested on the supplement) might well leave the petitioner without a remedy, for the courts of the several states are not in accord in granting alimony on the application of a wife who has procured a decree for divorce, without alimony, upon substituted service of process, in a sister state. See note, 42 A. L. R. 1389 et seq.

The defendant next argues that the supplement of 1919 is a general act while the Divorce act of 1907 is a special act, and therefore the former cannot properly be held to affect the latter. Hot so. The 1919 act is procedural, while the Divorce act expressly provides that recourse be had elsewhere in matters of procedure not prescribed by the Divorce act. Whether authority in matters of procedure emanates from the Chancery act or the 1919 supplement thereto or from other statutes or from the court’s inherent power, the effect of section 9 of the Divorce act is to authorize the court to have recourse thereto in dealing with proceedings over the subject-matter of which the Divorce act gives the court jurisdiction.

Dor is the title of the Chancery act and of the supplement, thereto such that their provisions cannot constitutionally be-applied to the present proceeding.

The Chancery act and its amendments and supplements are-procedural and general in character. Their provisions apply to all proceedings brought in chancery under special acts except to the extent that such special acts may expressly limit their operation. Realty Company of New Jersey v. Burghardt, 91 N. J. Eq. 120; Cona v. Henry Hudson Co., 86 N. J. Law 154; Silver v. Gattel, 89 N. J. Eq. 402. Their titles (“An act respecting the court of chancery” and “A supplement to cAn act respecting the court of chancery/ &c.,”) are therefore clearly indicative of their purpose.

The purpose of the constitutional provision and the test, to be applied is expressed in Hulme v. Board of Commissioners of Trenton, 95 N. J. Law 30, as follows:

“The constitutional provision (that the title shall clearly indicate the object) was meant to prevent the concealment-of the real object and what is commonly called logrolling. The incongruity of the object of a statute in its application to the facts must depend on the existing state of the law, just, as the court of errors and appeals has held that the object expressed in the title must give notice of the effect of the legislation to one conversant with the existing state of the-law * *

The title of the supplement of 1919 therefore satisfies-article 4, section 7, paragraph 4 of the Dew Jersey constitution in its application to the proceedings under the Divorce act.

So far it has been assumed that the court’s authority to-issue the writ in this case rests upon the 1919 supplement. But it may be rested upon the inherent prerogative power of' the court. As early as the reign of Elizabeth, the court of' chancery issued the writ of sequestration as original process-to compel the defendant’s appearance. Cases which indicate that such practice was resorted to when the occasion arose include: Desbrow v. Crommie, Bunb. 273; Baily v. Peastly, Bunb. 26; Gibson v. Scevengton, 1 Vern. 247 ; Lord Ward v. Lord Meath, 2 Chan. Cas. 173; Ex parte Jephson, Prec. Ch. 549; Vanhathen v. Shuman, Dick. 135; Bashleigh v. Buller, Dick. 152; Rees v. Mansel, Dick. 293; Lord Clifford’s Case, 2 P. Wms. 385; Anon., 1 Atkins 19.

In Hew Jersey, prior to the 1919 supplement, Vice-Chancellor Garrison in the unreported case of Gilson et al., Receivers v. Appleby et al. (docket 31/391), issued a writ of sequestration as original process in a proceeding by reeeivers of an insolvent corporation for an assessment of a non-resident stockholder upon his unpaid stock subscription and for the ■collection thereof. The defendant Appleby resided in Minnesota and could not be served with subpoena in Hew Jersey. He owned Hew Jersey real estate. Had the receivers been obliged to first secure an assessment in Hew Jersey and then sue in Minnesota and upon securing judgment there return to Hew Jersey and sue on such judgment here, the stockholder might in the meantime have disposed of his property. These facts being presented to the vice-chancellor, he ordered the issuance of the writ. The defendant’s lands were seized thereunder and the assessment made and collected.

Every form of process now commonly used in chancery was originally an invention necessitated by the inadequacy of the previous procedural methods to cope with a novel situation, and was issued without legislative sanction, and sometimes in spite of legislative opposition, as the exercise of the royal prerogative inherent in the chancellor in his extraordinary judicial capacity. Spence: The Equitable Jurisdiction of the Court of Chancery, and authorities there collected.

The prerogative of the chancellor to issue appropriate writs is necessarily as broad, within constitutional limitations, as is required to deal effectively with the subject-matter over which his jurisdiction extends. Equity will not suffer a wrong to be without a remedy.

This leaves for discussion the final objection of the defendant, that the fourteenth amendment of the United States ■constitution forbids the issuing of process in rem in an alimony proceeding. His argument is that while a state can acquire jurisdiction of property within its borders in an action in rem, no judgment can be entered against a defendant on a money demand in the absence of personal service upon the defendant within the jurisdiction, or a waiver by him of such service, or an appearance in the action; that while judgment in an action brought against a person concerning a thing, which thing is within the territorial jurisdiction of the court, may be based upon substituted service of process, an action for alimony is not an action concerning a thing; it is not an action in rem or even quasi in rem, but an action purely in personam, because it is brought to secure a money decree although such decree can be satisfied only-out of property of the defendant within the jurisdiction. Hence, unless there be personal service of process upon the defendant within the jurisdiction, or a waiver or appearance, there is a denial of due process of law and a deprivation of property of the defendant -in violation of the rights secured to him by the fourteenth amendment to the constitution of the United States.

It is to be observed that the objection that there has been a denial of due process of law, if valid, is fatal, whether the authority exercised in this case be based uopn the 1919 supplement or upon the inherent jurisdiction of the court. The objection is grounded upon the dicta of the court of errors and appeals in McGuinness v. McGuinness, 72 N. J. Eq. 881, but is disposed of by the more recent decision of the United States supreme court in Pennington v. Fourth National Bank, 248 U. S. 269; 61 L. Ed. 713. There a wife sued for divorce- and alimony in Ohio, joining as defendant an Ohio bank in which her husband had a deposit of money to his credit. The defendant husband was beyond the jurisdiction of the-court, and could not be served with process. At the commencement of the suit, the bank was restrained from paying-out any of the moneys on deposit on the husband’s order, and subsequently paid over the same to the wife on orders of the court. In an action by the husband against the bank it was held that he could not recover. Writing for the court,. Mr. Justice Brandéis said:

“Substituted service on a non-resident by publication furnishes no legal basis for a judgment in personam. Pennoyer v. Neff, 95 U. S. 714. But garnishment or foreign attachment is a proceeding quasi in rem. Freeman v. Alderson, 119 U. S. 185. The thing belonging to the absent defendant is seized and applied to the satisfaction of his obligation. The federal constitution presents no obstacle to the full exercise of this power.

“It is asserted that these settled principles of law cannot be applied to enforce the obligation of an absent husband to pay alimony, without violating the constitutional guaranty of due process of law. The main ground for the contention is this: In ordinary garnishment proceedings the obligation enforced is a debt existing at the commencement of the action, whereas the obligation to pay alimony arises only as a result of the suit. The distinction is, in this connection, without legal significance. * * * The only essentials to the exercise of the state’s power are presence of the res within its borders, its seizure at the commencement of the proceedings, and the opportunity of the owner to be heard. Where these essentials exist, a decree for alimony against an absent defendant will be valid under the same circumstances and to the same extent as if the judgment were on a debt—that is, it will be valid not in personam, but as a charge to be satisfied out of the property seized.

“* * * The injunction which issued against the bank was as effective a seizure as the customary garnishment or taking on trustee process.”

The requirement that the seizure shall be made at the commencement of the proceedings is satisfied when such seizure is made before any adjudication, following reasonable opportunity to be heard, has been reached upon the subject-matter of such proceedings. That is the situation in the present ease: the writ was issued at the commencement of that portion of the proceedings which is directed to the fixing of alimony and maintenance.

The circumstance that the defendant is now precluded from questioning the divorce decree is immaterial. His obligation to support his wife and child was not created by the decree; but by the marriage. The decree affects merely the remedy. The question of the amount of allowance to be fixed is still open, the question of the wife’s right thereto not having been in issue at any time.

So far as the constitutional requirement of due process is concerned, the writ was duly issued.

The application of the defendant under his special appearance to set aside the order and the writ is therefore denied.


source: Caselaw Access Project

author: Olipiiant, S. C. C.

license: Public Domain

text:
    ELSIE McQUILLAN AND CHARLES McQUILLAN, PLAINTIFFS, v. CLARK THREAD COMPANY, A CORPORATION, DEFENDANT.
    Decided February 13, 1934.
    For the motion, Lindabvry, Depue & Faulks (Walter F. Waldau, of counsel).

      Contra, Jack Feinberg.

   Olipiiant, S. C. C.

This matter is before me sitting as a Supreme Court commissioner on a motion to strike the complaint upon the ground that the allegations thereof are sham and upon the further ground that they do not state a good, legal and sufficient cause of action.

The complaint alleges that on October 19th, 1933, and for a long time prior thereto, the defendant was and still is the owner of premises situated on Danforth avenue, in the city of Jersey City, and further alleges that on or about said date, and for a long time prior thereto, the sidewalks were permitted and allowed to be used while they were in a defective and dangerous condition, and that this condition was caused through the carelessness and negligence of the defendant. The complaint further avers that the plaintiff, Elsie McQuillan, while using the sidewalk fell and received injuries.

Attached to the notice of motion to strike was the affidavit of William H. Loftus, vice-president of the defendant, Clark Thread Company. That affidavit states that the Clark Thread Company on October 14th, 1933, sold and conveyed the premises mentioned in the complaint, the deed being executed and delivered, and possession of the premises delivered on said day. The affidavit further states that the Clark Thread Company has not been in possession or control of the premises since the 14th day of October, 1933.

The facts as stated in the affidavit were admitted by plaintiffs’ attorney in the oral argument before me.

At the time the motion to strike the complaint was argued, the plaintiffs asked leave to file an amended complaint in which the present owner and occupier of the premises were joined as defendant and which repeated the count of negligence against the Clark Thread Company, and added a second count sounded in nuisance.

It can be seen that this action is brought against the defendant, who had by warranty deed without reservations conveyed the property five days before the alleged happening of the accident to the plaintiff.

There appears to be no case precisely in point on this question in this state. The leading ease in the country, however, appears to be that of Palmore v. Morris (Superior Court of Pennsylvania, 1897), 37 Atl. Rep. 995. In that case an action was instituted against the defendant for injuries sustained by a minor which injuries were the result of the defendant’s negligence in maintaining a dangerous and badly secured gate on a building adjoining a public sidewalk. The evidence showed that the gate was out of repair and that there was negligence on the part of the one whose duty it was to repair it. The plaintiff was injured while standing on the pavement and looking through this gate into the premises. The day previous to the accident, the defendant had conveyed the property by deed. The lower court submitted the case to the jury and a verdict was rendered for the plaintiff. On appeal this judgment was reversed. Mr. Justice Dean, writing the opinion for the court, said in part:

“But this is not a letting of the land by a landlord to a tenant; it is an absolute sale, whereby the owner devests himself of title, and all right to possession, or of re-entry for repairs, or for any other purpose. Any future possession in face of his deed, unless there be an independent stipulation to the contrary, would be a palpable trespass; and with his surrender of possession all the duties incident to ownership, as to him, were at an end. Prom the moment Lodge took possession under his deed the duties theretofore incumbent on Morris, Tasker & Company were transferred to him, and he became answerable to the public for neglect in their performance. The learned judge of the court below adopts a different event for the commencement of liability on the part of the grantee than possession taken under the deed. He says, ‘he ought, within a reasonable time, to see that the property which he had purchased, if it was in dangerous condition to the public, was put in repair.’ That is, he imports into the deed an implied covenant on part of the grantors that they will be answerable to third parties for defects in the building for a reasonable time after the grantee takes possession. Public policy does not demand that such clogs on the transfer of real estate should be imposed by construction, nor does the law warrant such an implication. Before he purchased the real estate, the law presumes the grantee examined the property, and was cognizant of its situation, surroundings, the character of the structures upon it, and their condition of repair. Without an express covenant by the grantors, as between them and the grantee, there was no duty on the grantors to repair. The purchaser thereafter assumed that duty because he then became the owner and occupant. If the grantors, after possession by Lodge, the grantee, owed no duty to him, why should there be negligence in performance on their part as to the public ? It is not even the case of no actual occupancy, where the law casts the duty on the owner, but one where the owner and actual occupant were the same.”

The rule enunciated in the foregoing case was followed and applied in the case of Smith v. Tucker (Superior Court of Tennessee, 1925), 270 S. W. Rep. 66.

It, therefore, appears that a cause of action founded upon negligence in regard to real property can be maintained only against the owner occupier, i. e., the one in control. Where there has been a transmutation of title and possession, the former owner has no control over the premises and he does not have the right of possession nor the right of entry. Any attempt to make entry on his part for whatever purpose would put him in the category of a trespasser. Having divested himself of all rights in regard to the property, he owes no duty with respect to the condition of the premises. Therefore, the negligent condition which may exist on the premises to the injury of any member of the public, whether he be a licensee or invitee, is not actionable as against the former owner.

The same reasoning would apply to the count charging the maintenance of a nuisance, if leave were given to amend the complaint to contain that count.

Counsel for the plaintiff, in support of his contention that the second count would state a good cause of action relies on the case of East Jersey Water Co. v. Bigelow, 60 N. J. L. 201; 38 Atl. Rep. 631, but that case can be easily distinguished from the one before me. In that case the East Jersey Water Company reserved to itself by special covenant in the lease-the right to maintain the dam and reservoir which created the nuisance and the control and management thereof. It further appeared in that ease that the East Jersey Water Company was actually in control of the water works and dam which caused the diversion of water.

There is a distinction between the situation where one constructs or erects a structure or impediment and where one through negligence permits a sidewalk or some building thereon to fall into disrepair and so become defective. This-distinction was made by the Court of Errors and Appeals in the case of McKeown v. King, 99 N. J. L. 251; 122 Atl. Rep. 753.

Counsel for the plaintiff further contended that a reasonable opportunity must be given the new owner to repair before the liability shifted. The answer to that proposition is that the grantee should have inspected the property and if' necessary insisted upon proper repairs before taking title.

It would be a dangerous principle to declare that liability for injuries sustained by reason of negligence or the maintenance of a nuisance continues after transfer of title. How long would the liability continue? Where would the lino be drawn ?

The motion to strike the complaint will be granted and the motion to amend the complaint will be denied.


author: Per Curiam.

text:
    RICHARD W. BOOTH, COUNTY TREASURER OF THE COUNTY OF ESSEX, RELATOR, v. REGINALD PARNELL, DIRECTOR OF REVENUE AND FINANCE OF THE CITY OF NEWARK; MEYER C. ELLENSTEIN, MICHAEL DUFFY, REGINALD PARNELL, PEARCE R. FRANKLIN AND ANTHONY F. MINISI, COMMISSIONERS, CONSTITUTING THE BOARD OF COMMISSIONERS OF THE CITY OF NEWARK, THE GOVERNING BODY OF THE CITY OF NEWARK, RESPONDENTS.
    Argued January 16, 1931
    Decided April 6, 1934.

      Before Brogan, Chief Justice, and Justices Trenchard and Heher.
    Bor the relator, Arthur T. Vanderbilt.

    Bor the respondents, Franlc A. Boettner (Thomas M. Kane, of counsel).
   Per Curiam.

The relator, the county treasurer of the county of Essex, obtained a rule to show cause why a peremptory writ of mandamus should not issue to compel the designated officials and governing body of the city of Newark, in the county of Essex, to pay the state and county taxes then in default, to relator.

The essential facts of the petition filed herein are admitted. The amounts set forth in the petition as due and owing to petitioner are not disputed. It is conceded that the respondents have collected taxes in excess of the amount apportioned against them by the Essex county board of taxation for state and county taxes.

The only allegation of the petition that is seriously challenged is that it is the duty of the respondents to pay to relator the state and county taxes out of the first moneys received by them as and when they are due for payment.

Now under the system of taxation provided in “An act for the assessment and collection of taxes” (Pamph. L. 1918, ch. 236; 2 Cum. Supp. Comp. Stat., p. 3483, &c., amended Pamph. L. 1933, ch. 182), it is the duty of the county board of taxation to. assess the taxes for the county and apportion them among the various municipalities. The state taxes are also included in the assessment and are apportioned among the various municipalities by the Essex county board of taxation. Under the legislative scheme, as will be seen, the duty of collecting the county and state taxes is imposed in the first instance upon the various municipalities. They in turn are under a duty to pay the state and county taxes to the county treasurer, who in turn is under a duty to pay the state taxes to the state treasurer. The apportionment for the first half year is due on June 15th of each year. The apportionment for the second half year and the state taxes are due on December loth of each year. The county treasurer is under a duty to pay the state taxes to the state treasurer by December 20th of each year. And as will also be seen no discretion is granted the municipalities or the county officials with respect to the payment of these taxes. The duty to pay the same to the county treasurer on the dates mentioned is mandatory and no excuse for failure to pay is allowed by the statute. As will also be seen the statute provides that if there is not sufficient funds in the municipal treasury, the governing body is directed to borrow the money and pay the same.

Under these circumstances, it is clear that the right of relator to the writ of mandamus prayed for is clear under the Tax act of 1918.

The proper remedy to compel the performance of a ministerial duty imposed by statute is by mandamus. State v. Elkinton, 30 N. J. L. 335; O’Hanlon v. Calvert, 88 Id. 33: 95 Atl. Rep. 631; Tipping v. Dougherty, 11 N. J. Mis. R. 931; 169 Atl. Rep. 671.'

Chapter 182 of the laws of 1933, which amends chapter 236 of the laws of 1918, and chapter 215 of the laws of 1924, provides, among other things, that:

“The governing body of each municipality shall cause to be paid to the county treasurer of the county one-half of the amount of county taxes required to be assessed and raised in such municipalities on or before the fifteenth day of June in each year; and on or before the fifteenth day of December shall cause to be paid to the county treasurer the remaining one-half of the county taxes, and also all of the taxes required to be assessed and raised by taxation in such taxing district for state school and other state purposes ***_*** It shall be the duty of the governing body of the municipality or the county to cause the county, local school and state taxes to be paid as and when dne for payment; if there shall not be funds enough in the treasury available for such payment, the governing body shall immediately borrow the money and pay such taxes.”

Under this statutory provision, it is clear that the duty of the respondents in this proceeding to pay the state and county taxes to relator is purely a ministerial one, and the proper method for the county to enforce the collection of state and county taxes in default is by a writ of mandamus. Bayonne v. State, Kingsland, pros., 41 N. J. L. 368; Shields v. Paterson, 55 Id. 495; 27 Atl. Rep. 803; Ross v. Walton, 63 N. J. L. 435; 44 Atl. Rep. 430; affirmed, 67 N. J. L. 688; 52 Atl. Rep. 1132; Trewin v. Shurts, 74 N. J. L. 200; 65 Atl. Rep. 984; Tipping v. Dougherty, supra.

In Tipping v. Dougherty, supra, the court said:

“The right of the relator to a peremptory writ of mandamus is clear. See Tax act, chapter 236, laws of 1918, section 605, as amended by chapter 215, Pamph. L. 1924, and chapter 135, laws of 1899, sections 9 and 29. * * *.

“As seen the statute makes it an inflexible duty upon the part of the city treasurer to pay out of the first money received by him, the state and county taxes. The duty is a ministerial one, and the duty to perform it in a definite way is clear, and the proper remedy to compel this statutory officer to comply with this statutory regulation is by mandamus."

In all of the cases cited there was in the statutes under consideration a provision that the state and county taxes shall be paid to the county treasurer, out of the first moneys collected, and it was held that the legislative policy was that the first fruits of taxation be given to the state and °ounty in derogation to the claims of the local municipalities. Thus Chief Justice Beasley said, in Bayonne v. Kingsland, supra:

“It will be perceived that the state policy embodied in this provision is to give the first fruits of taxation to the state and county, in derogation to the claims of the townships and cities. This adjustment was necessary in order to exempt the state and counties from bearing any part of the loss annually sustained from the deficit occurring in the collection of the taxes, the sum collected invariably falling below the sum assessed. Such deficiency was to be the loss exclusively of the townships and cities.”

In order to put the rights of the state and county to their taxes “as and when due” promptly and clearly beyond dispute, the legislature in the amendment of 1924 expressly provided that the governing body shall cause the same to be paid “as and when due,” and carried that provision into the amendment of 1933, and further provided that the local authorities shall pay them out of any funds in the treasury, and if there is insufficient funds in the treasury, then the local authorities must “immediately” borrow a sufficient amount to pay these taxes to the county treasurer.

Applying this statute to the present case it is clear that it was the duty of the respondents to pay the state and county taxes rather than to use available moneys for other purposes.

The reason for this requirement is obvious. Since neither the state nor the county is given the power to collect these taxes directly from the taxpayer, it is essential that they receive the taxes from the local authorities so that the credit and functions of the state and county be not impaired or measurably destroyed.

The respondents do not dispute the fact that they have received from the collection of taxes an amount in excess of the assessment for state and county purposes. They assert, however, that it was necessary for them to use these moneys and that they did use them to carry on the local government and for debt service. These same reasons for failure to pay have been offered many times by various municipalities, but on every occasion our courts have held that they do not constitute any excuse for failure to pay state and county taxes. Bayonne v. State, Kingsland, pros., supra; Shields v. Paterson, supra; Ross v. Walton, supra; Trewin v. Shurts, supra, and Tipping v. Dougherty, supra.

Since the statute makes it the unqualified duty of the local governing body to pay these taxes as and when due, and since it is admitted that there is due and owing to relator the amount set forth in the petition, it follows that the relator is entitled to a peremptory writ of mandamus in accordance with the prayer of the petition filed herein.

In Shields v. Paterson, supra, the court held, in a situation similar to this, that the legal right to the writ of mandamus being clear, and the matter being of public and urgent interest, a peremptory writ of mandamus would issue in the first instance.

If it be contended that the relator has another remedy under section 63 of the Tax act of 1903 and that therefore a writ should not issue, the answer is first that apparently that section was repealed by the Bevision of 1918, and secondly, if that be not so, clearly that section does not exclude the remedy by mandamus. Trewin v. Shurts, 74 N. J. L. 200; 65 Atl. Rep. 984.

If it be contended that there was no wrongdoing upon the part of the respondents, it is a sufficient answer to say that they have failed to comply with the statutory requirement as to their duties.

The contention that to grant the writ would cause confusion, and the contention that the respondents are without funds, are disposed of adversely to the respondents by the decision in Tipping v. Dougherty, supra.

If it be suggested that the relator is not entitled to interest on delayed payments such contention is without merit.

The rule to show cause will be made absolute and a peremptory writ accordingly granted.

It being made to appear without dispute that, after the rule to show cause was allowed, the relator named in the original petition resigned from the office of county treasurer of the county of Essex; that his resignation has been accepted and his successor, Zenas Crane, has been appointed and duly qualified, and is now the duly qualified treasurer of the county, the writ therefore will run in the name of Zenas Crane, county treasurer of the county of Essex, and will require respondents to pay to that named official the state and county taxes.


author: Pee Cubiam.

text:
    RICHARD W. BOOTH, COUNTY TREASURER OF THE COUNTY OF ESSEX, RELATOR, v. FRANK G. COUGHTRY, COMPTROLLER OF THE CITY OF ORANGE; JOHN C. CROWE, TREASURER OF THE CITY OF ORANGE; FRANK J. MURRAY, WALTER B. SAVAGE, GEORGE H. WERNER, GEORGE ROACH AND CHARLES IPPOLITO, COMMISSIONERS, CONSTITUTING THE BOARD OF COMMISSIONERS OF THE CITY OF ORANGE, THE GOVERNING BODY OF THE CITY OF ORANGE, RESPONDENTS.
    Argued January 16, 1934
    Decided April 6, 1934.
    Before Bbogan, Chief Justice, and Justices Tbenchabd and Hehee.
    For the relator, Arthur T. Vanderbilt.

    For the respondents, Edward B. McGlynn.

   Pee Cubiam.

The relator, -the county treasurer of the county of Essex, obtained a rule to show cause why a peremptory writ of mandamus should not issue to compel the designated officers and governing body of the city of Orange, in the county of Essex, to pay the state and county taxes then in default, to the relator.

A careful examination of the points made for the city at the oral argument and in the comprehensive brief results in this conclusion: The factual situation in this case, so far as the decision of the ease is concerned, is in effect similar to that in Booth v. Parnell, 12 N. J. Mis. R. 413, and we believe that the principles of law applicable thereto are to be found in that decision which is here controlling.

The rule to show cause in this case will be made absolute and a peremptory writ accordingly granted.

It being made to appear without dispute that after the rule to show cause was allowed, the relator named in the original petition resigned from the office of county treasurer of the county of Essex; that his resignation has been accepted and his successor, Zenas Crane, has been appointed and duly qualified and is therefore now the duly qualified treasurer of the county, the writ therefore will run in the name of Zenas Crane, county treasurer of the county of Essex, and will require respondents to pay to that named official the state and county taxes.


author: Pee Curiam.

text:
    RICHARD W. BOOTH, COUNTY TREASURER OF THE COUNTY OF ESSEX, RELATOR, v. FREDERICK R. WAGNER, BOROUGH TREASURER AND TAX COLLECTOR OF THE BOROUGH OF VERONA, AND DAVID SLAYBACK, ARTHUR CRAWFORD, FRANK ZINK, HENRY WILLIAMS, CALHOUN F. BUGBEE, GEORGE BOLLENBACK AND WILLIAM KAPLAN, COUNCILMEN, CONSTITUTING THE BOROUGH COUNCIL, THE GOVERNING BODY OF THE BOROUGH OF VERONA, RESPONDENTS.
    Argued January 16, 1934
    Decided April 6, 1934.

      Before Brogan, Chief Justice, and Justices Trenchabd and Hehee.
    For the relator, Arthur T. Vanderbilt.

    For the respondents, Chester C. Beehman.

   Pee Curiam.

The relator, the county treasurer of the county of Essex, obtained a rule to show cause why a peremptory writ of mandamus should not issue to compel the designated officers and governing body of the borough of Yerona, in the county of Essex, to pay the state and county taxes then in default, to the relator.

We believe that the factual situation in this case, so far as essential to the decision, is in effect similar to that in Booth v. Parnell, 12 N. J. Mis. R. 413, and the principles of law applicable thereto are to be found in that decision which is here controlling.

True the respondents urge that the writ should not go because a member of the board of freeholders of the county said to a member of the borough council that he would be content with a pro raia share of the collections. But that had no binding force upon the relator, first because it was not approved by any resolution of the board of freeholders, and secondly, was contrary to the requirement of the statute and notably would deprive the relator of some portion of both the state and county tax to which he was entitled by law.

The contention that the writ should not go because the borough required the money for other purposes is sufficiently disposed of in Booth v. Parnell, supra.

The rule to show cause in this case will be made absolute and a peremptory writ accordingly granted.

It being made to appear without dispute that after the rule to show cause was allowed, the relator named in the original petition resigned from the office of county treasurer of the county of Essex; that his resignation has been accepted and his successor, Zenas Crane, has been appointed and duly qualified and is therefore now the duly qualified treasurer of the county, the writ therefore will run in the name of Zenas Crane, county treasurer of the county of Essex, and will require respondents to pay to that named official the state and county taxes.


author: Pee Cueiam.

text:
    RICHARD W. BOOTH, COUNTY TREASURER OF THE COUNTY OF ESSEX, RELATOR, v. AUGUST W. FUND, TAX COLLECTOR OF THE TOWNSHIP OF LIVINGSTON; BENJAMIN WINANS, TREASURER OF THE TOWNSHIP OF LIVINGSTON; SAMUEL MacQUAIDE, FREEMAN HARRISON, AUGUST BAER, HERMAN BECK AND EDWARD VAN NESS, COMMITTEEMEN, CONSTITUTING THE TOWNSHIP COMMITTEE OF THE TOWNSHIP OF LIVINGSTON, THE GOVERNING BODY OF THE TOWNSHIP OF LIVINGSTON, RESPONDENTS.
    Argued January 16, 1934
    Decided April 6, 1934.
    Before Brogan, Chief Justice, and Justices Trenchard and Heher.
    Bor the relator, Arthur T. Vanderbilt.

    Bor the respondents, Norman L. Brundage.

    Bor the board of education of the township of Livingston, Alfred J. Grosso.

   Pee Cueiam.

The relator, the county treasurer of the county of Essex, obtained a rule to show cause why a peremptory writ of mandamus should not issue to compel the designated officers and governing body of the township of Livingston, in the county of Essex, to pay the state and county taxes then in default, to the relator.

A careful examination of the brief filed for the respondents and of that filed by the board of education of the township of Livingston results in this conclusion: The factual situation in this case, so far as the decision of the case is concerned, is in effect similar to that in Booth v. Parnell, 12 N. J. Mis. R. 413, and the principles of law applicable thereto are to be found in that decision which is here controlling.

The rule to show cause in this case will be made absolute and a peremptory writ accordingly granted.

It being made to appear without dispute that after the rule to show cause was allowed, the relator named in the original petition resigned from the office of county treasurer of the county of Essex; that his resignation has been accepted and his successor, Zenas Crane, has been appointed and duly qualified and is therefore now the duly qualified treasurer of the county, the writ therefore will run in the name of Zenas Crane, county treasurer of the county of Essex, and will require respondents to pay to that named official the state and county taxes.


text:
    RICHARD W. BOOTH, COUNTY TREASURER OF THE COUNTY OF ESSEX, RELATOR, v. WARREN A. CLAPP, CITY TREASURER AND TAX COLLECTOR OF THE CITY OF EAST ORANGE; FRANCIS T. MORTON, EDWIN L. ELLOR, W. FRANK BOWER, CYRUS H. VAIL, WILLIAM S. LEVINS, WILLIAM C. PEARSON, JOHN F. BRADY, FREDERICK C. RAUCH, ARCHIE H. ORMOND AND CHRISTOPHER R. MORROW, COUNCILMEN, CONSTITUTING THE CITY COUNCIL OF THE CITY OF EAST ORANGE, THE GOVERNING BODY OF THE CITY OF EAST ORANGE, RESPONDENTS.
    Argued January 16, 1934
    Decided April 6, 1934.
    Before Brogan, Chief Justice, and Justices Trenciiard and Heher.
    Bor the relator, Arthur T. Vanderbilt.

    Bor the respondents, Walter G. Ellis.

   Per Curiam.

The relator, the county treasurer of the county of Essex, obtained a rule to show cause why a peremptory writ of mandamus should not issue to compel the designated officers and governing body of the city of East Orange, in the county of Essex, to pay the state and county taxes then in default, to the relator.

A careful consideration of the oral argument and of the brief on behalf of the city results in this conclusion: The factual situation in this case, so far as the decision of the case is concerned, is similar to that in Booth v. Parnell, 12 N. J. Mis. 11. 413, and the principles of law applicable thereto are to be found in that decision which is here controlling.

The rule to show cause in this case will be made absolute and a peremptory writ accordingly granted.

It being made to appear without dispute that after the rule to show cause was allowed, the relator named in the original petition resigned from the office of county treasurer of the county of Essex; that his resignation has been accepted and his successor, Zenas Crane, has been appointed and duly qualified and is therefore now the duly qualified treasurer of the county, the writ therefore will run in the name of Zenas Crane, county treasurer of the county of Essex, and will require respondents to pay to that named official the state and county taxes.


text:
    RICHARD W. BOOTH, COUNTY TREASURER OF THE COUNTY OF ESSEX, RELATOR, v. T. RUSSELL SARGEANT, TOWN TREASURER OF THE TOWN OF BELLEVILLE; WILLIAM KNAPP, TAX COLLECTOR OF THE TOWN OF BELLEVILLE; SAMUEL S. KENWORTHY, FRANK J. CARRAGHER, WILLIAM D. CLARK, PATRICK WATERS AND WILLIAM W. WILLIAMS, COMMISSIONERS, CONSTITUTING THE BOARD OF COMMISSIONERS, THE GOVERNING BODY OF THE TOWN OF BELLEVILLE, RESPONDENTS.
    Argued January 16, 1934
    Decided April 6, 1934.

      Before Brogan, Chief Justice, and Justices Trenchard and Heher.
    For the relator, Arthur T. Vanderbilt.

    For the respondents, Lawrence K. Keenan.

   Per Curiam.

The relator, the county treasurer of the county of Essex, obtained a rule to show cause why a peremptory writ of mandamus should not issue to compel the designated officers and governing body of the town of Belleville, in the county of Essex, to pay the state and county taxes then in default, to the relator.

The factual situation in this case, so far as the decision of the case is concerned, is in effect similar to that in Booth v. Parnell, 12 N. J. Mis. R. 413, and the principles of law applicable thereto are to be found in that decision and in the case of Tipping v. Dougherty, 11 N. J. Mis. R. 931; 169 Atl. Rep. 671, cited therein, which are here controlling.

True, this case is somewhat distinguished from that considered in Booth v. Parnell, supra, by the fact that the act (Pamph. L. 1895, ch. 113, § 29) under which Belleville was incorporated provides that the town treasurer shall pay to the county treasurer the state and county taxes out of the first moneys received from the collection of taxes. But under these circumstances the failure of the town of Belleville to pay the state and county taxes in question cannot be justified; quite the contrary. See particularly Tipping v. Dougherty, supra.

The rule to show cause in this case will be made absolute and a peremptory writ accordingly granted.

It being made to appear without dispute that after the rule to show cause was allowed, the relator named in the original petition resigned from the office of county treasurer of the county of Essex; that his resignation has been accepted and his successor, Zenas Crane, has been appointed and duly qualified and is therefore now the duly qualified treasurer of the county of Essex, the writ therefore will run in the name of Zenas Crane, county treasurer of the county of Essex, and will require respondents to pay to that named official the state and county taxes.


author: Peb Cubiam.

text:
    RICHARD W. BOOTH, COUNTY TREASURER OF THE COUNTY OF ESSEX, RELATOR, v. RALEIGH S. RIFE, DIRECTOR OF REVENUE AND FINANCE OF THE TOWN OF NUTLEY; SIMON BLUM, TAX COLLECTOR OF THE TOWN OF NUTLEY; WALTER F. REINHEIMER, RALEIGH S. RIFE, FREDERICK H. YOUNG, FRANCIS T. STAGER AND THEODORE DeMURO, COMMISSIONERS, CONSTITUTING THE BOARD OF COMMISSIONERS OF THE TOWN OF NUTLEY, THE GOVERNING BODY OF THE TOWN OF NUTLEY, RESPONDENTS.
    Argued January 16, 1934
    Decided April 6, 1934.
    Before Beogan, Chief Justice, and Justices Tbenchabd and Hehee, .
    For the relator, Arthur T. Vanderbilt.

    For the respondents, Edwin J. G. Joerg.

   Peb Cubiam.

The relator, the county treasurer of the county of Essex, obtained a rule to show cause why a peremptory writ of mandamus should not issue to compel the designated officers and governing body of the town of Nutley, in the county of Essex, to pay the state and county taxes then in default, to the relator.

The factual situation in this case, so far as the decision of the case is concerned, is in effect similar to that in Booth v. Parnell, 12 N. J. Mis. R. 413, and the principles of law applicable thereto are to be found in that decision which is plainly here controlling.

The rule to show cause in this ease will be made absolute and a peremptory writ accordingly granted.

It being made to appear without dispute that, after the rule to show cause was allowed, the relator named in the original petition resigned from the office of county treasurer of the county of Essex; that his resignation has been accepted and his successor, Zenas Crane, has been appointed and duly qualified and is therefore now the duly qualified treasurer of the county, the writ therefore will run in the name of Zenas Crane, county treasurer of the county of Essex, and will require respondents to pay to that named official the state and county taxes.


text:
    S. PEARSON MORRIS, PLAINTIFF, v. CHELSEA TITLE AND GUARANTY COMPANY, DEFENDANT.
    Submitted October 14, 1933
    Decided March 23, 1934.
    Before Brogan, Chief Justice, and Justices Trenchart) and Heher.
    For the rule, William I. Garrison.

      Contra, Albert G. Abbott (Thomas G. Siddall, of counsel).
   Pee Curiam.

This rule called upon the defendant to show cause “why the said inquisition (hereinafter referred to) should not be set aside and a new writ of inquiry issue to have the damages of the plaintiff re-assessed.”

The state of the case laid before us consists only of this rule and the stipulation of the parties with a copy of the policy of insurance annexed thereto.

The stipulation is as follows:

“It is hereby stipulated by and between counsel for the respective parties hereto as follows: The complaint in this action was based on a policy of title insurance, in and by which the defendant covenanted to indemnify the plaintiff against loss or damage not to exceed $12,000, suffered by reason of defects in title to a certain second mortgage of which the plaintiff was the assignee. The complaint alleged that by decree of the Court of Chancery the mortgage had been adjudged to be invalid and ineffectual to charge the mortgaged premises. Judgment by default was entered, and a writ of inquiry issued to the sheriff of the county of Atlantic, which by order of this court was executed under the direction of John 13. Slack, Esquire, a Supreme Court commissioner. Upon the execution of the said writ of inquiry, the Supreme Court commissioner, in his charge to the jury, directed the jury that if a verdict was to be found for the plaintiff, two alternative verdicts, one verdict to be based upon the damages sustained by the plaintiff as of the date of the title policy of the defendant and the other verdict as of the date of the final decree of the Court of Chancery in which it was determined that the mortgage was invalid and ineffectual, should be rendered. A rule to show cause was granted to the plaintiff to set aside the findings and the report of the commissioner, in that the Supreme Court commissioner should have charged the jury to find a verdict either of the date of the issuance of the title policy or of the date of the decree of the Court of Chancery. The said inquisition was set aside and a new writ of inquiry was issued, directed to John B. Slack, Esquire, sitting as a Supreme Court commissioner, and this matter was again tried before a jury, and he charged the jury, in assisting them in making up their findings, in the following .language: ‘This is a suit brought in the Supreme Court by Mr. Morris against the Chelsea Title and Guaranty Company, upon a title policy in the sum of $12,000, and insured Mr. Morris as the owner by assignment of a certain mortgage dated May 1st, 1929, and made by Yetta Davis to Sarah Elizabeth Handle, payable eighteen months after date, and which mortgage was declared null and void by a decree of the Court of Chancery on November 17th, 1931, * * * I, therefore, instruct you to find as the amount of damages the value of this property, according to the evidence, as of November 17th, 1931, and from this you are to subtract the amount of the first mortgage, $16,000, with interest due thereon at that time, which has been testified, as well as the taxes due at that time/ The Supreme Court commissioner refused to permit the plaintiff to introduce testimony as to the value of the property as of the date of the title policy and permitted testimony as of the date of the final decree in the Court of Chancery, and refused to permit the plaintiff to introduce testimony as to the consideration parted with by him for the assignment of the mortgage, to all of which exception was taken by the plaintiff. The jury assessed the damages of the plaintiff in the sum of $722.39. The sole question now before this court on the rule is what is the proper measure of damages in this case and as of what date should they be assessed, whether as of the date of the title policy, October 2d, 1929, or of the date of the final decree in Chancery, November 17th, 1931/’

It seems apparent that the answer to that question depends upon the terms of the policy of insurance.

Now, looking at that we see that the policy declares that where (as here) the insurance is upon the interest of a mortgagee, “no claim shall arise under the policy unless * * * the mortgage has been adjudged, by a final determination in a court of competent jurisdiction, to be invalid, or ineffectual to charge the premises described in this policy, or subject to a prior lien or encumbrance not excepted in this policy.” It is, therefore, apparent that by the very terms and conditions of the plaintiff’s policy no damages can be assessed against the title company until and when there has been a final determination by a court of competent jurisdiction adjudging the mortgage to be invalid or ineffectual.

Hence it seems to us that the Supreme Court commissioner did not err in instructing the jury to compute the damages as of the date on which the Court of Chancery found the mortgage to be invalid, instead as of the date when the policy was issued. That seems to be in harmony with the decision in the somewhat similar case of Flockhart Foundry Co. v. Fidelity Union Trust Co., 102 N. J. L. 405; 132 Atl. Rep. 493, where the Court of Errors and Appeals held that: “Under the terms of the particular contract of title guaranty here involved, for breach of which, because of an outstanding interest or title in a portion of the lands, existing prior to the issuance of such guaranty, an action is brought, the measure of the loss or damage is the value of the portion affected by said outstanding interest or title as of the date of a bona fide contract of sale of such lands by the party guaranteed, and is not to be measured by the value of the lands affected as of the time of making such guaranty.”

We think that what we have said in effect disposes of the plaintiff’s argument as found in his brief.

The rule to show cause will be discharged, with costs.


author: Brogan, Chief Justice.

text:
    WILLIAM J. ETTRICK, PROSECUTOR, v. STATE BOARD OF TAX APPEALS, DEFENDANT.
    Decided May 1, 1934.
    For the prosecutor, George Rotlistein.

    For the defendant, William A. Stevens, attorney-general (John J. Solan, of counsel).
   Brogan, Chief Justice.

This writ brings up for review the finding and determination of the state board of tax appeals, adjudging that it was without power to receive tax appeals that arrived at the office of the board on Monday, October 2d, 1933, one day after the time fixed by the statute.

The facts in the case are presented in a written stipulation as follows: That the prosecutor is a resident and taxpayer in the township of North Bergen; that on or before June 15th, 1933, he appealed from an assessment on his property to the Hudson county tax board; that as agent for other taxpayers, he also appealed the assessment on two-hundred and sixty other parcels of real property situated in the same township; that in behalf of himself and the other property owners whom he represented, he appealed from the judgment of the county board to the state board of tax appeals; that said appeals were sent by mail, parcel post, on September 28th, 1933, and delivered at the office of the state board of tax appeals on Monday morning, October 2d, 1933, at nine o’clock, October 1st, being Sunday.

On October 6th, 1933, the prosecutor was advised by the state board of tax appeals that the said petitions of appeal were not received until Monday morning, October 2d, 1933, as aforesaid, and that the board would not accept, file, hear or determine any tax appeals which had not been filed with the said board “on or before midnight, Sunday, September 30th, 1933.”

The question before me therefore is briefly this: Was it the duty of the state board of tax appeals to have received these petitions of appeal although they arrived on Monday, the 2d day of October?

The statute provides that anyone who is dissatisfied with the judgment of the county board of taxation, upon an appeal thereto, may further appeal to the state board of tax appeals “on or before the first day of October,” following the judgment of the county board. See section 704, General Tax act, Revision of 1918. Pamph. L. 1918, p. 881.

It appears from the return to the writ that the board, because October 1st fell on Sunday, kept its office open until midnight on Saturday, September 30th, 1933, for receiving appeals presented or forwarded for filing. The Tax act itself fails to make any provision for extending the time when the last day for the filing of appeal falls upon Sunday.

Before taking up the main question, however, it should be observed in passing that the board, by ruling that it would not receive tax appeals that were not filed on or before midnight, Saturday, September 30th, 1933, shortened the petitioner’s time for filing by one day and even if the appeals were presented on October 1st (Sunday), they could not have been received.

Again, before considering the merits of the case, it will be necessary to dispose of a motion made by the attorney-general, representing the state board of tax appeals, seeking the dismissal of this writ in so far as “said writ provides for a review of the refusal of the state board of tax appeals to receive and file the alleged tax appeals of property owners ■other than William J. Ettrick, the prosecutor herein, on the ground that with respect thereto said writ of certiorari was improvidently granted in that the above-named prosecutor has no interest or standing legally justifying him to sue out a writ of certiorari to have this court review any alleged action of the said board resulting in injury to the owner of property, other than to the said William J. Ettrick.”

The Tax act, Revision of 1918 (Pamph. L. 1918, p. 880, § 701), provides that the said petition “shall be signed and sworn to by the petitioner or his agent, &c.” These petitions of appeal were signed by the prosecutor, individually, with respect to his own property, and, with regard to other properties, as agent for the owners. That this was done seems clear from the stipulation of facts upon which this case was presented, and it further appears from the stipulation that the appeals were taken in conformity with the pertinent rule of the board. His appearance as agent before the several tribunals having jurisdiction over tax appeals, has the sanction of the statute, supra, and he retains that same interest as such in the role of prosecutor of this writ.

The petitions of appeal were rejected not because the prosecutor acted in the capacity of agent, but because the board determined that they arrived too late.

It is true that perhaps the writ might better have been entitled, “William J. Ettrick, individually, and as the agent for others,” but this objection is formal rather than substantial. If it had been raised at the time the writ was allowed, the moving papers and the writ would have been amended. If need be, they will be amended now. This motion will therefore be denied.

The next objection on behalf of the defendant is that the prosecutor’s remedy was by mandamus rather than certiorari. I cannot adopt this view of the law. The Tax act (supra), section 704, provides that any appellant who is dissatisfied with the judgment of the county board of taxation may further appeal to the state board of taxes and assessments (now the state board of tax appeals) on or before the first day of October next and the state board shall proceed to hear and determine all such appeals and render its judgment, &c'.

The functions of the state board are plainly quasi-judicial in character. It is not the failure to perform a ministerial act, such as receiving these appeals that is complained of, but it is the determination of the board that it had no power to receive them, under these circumstances, that is under review. Its action in this determination was essentially judicial rather than ministerial. It is apparent that there are very few matters, judicial or quasi-judicial in character, which have not attached to them incidents that are of the ministerial order. This writ is directed to the determination that the several appeals, when they arrived by mail, were out of time and would not be considered unless they had been filed on or before midnight, Saturday, September 30th, 1933. Therefore certiorari was the proper remedy.

The state board relied for its rejection of these appeals on the case of Hughes et al. v. Griffith, which was decided in 1862, and reported in 143 Eng. Rep. 129; Common Pleas Book 21. This case lays down the rule that when the last day for the performance of an act by the court falls on a day which is dies non, that is, a Sunday or holiday, the party has until the first day upon which the court may act to have the court perform the act which is necessary. To the same -effect was the rule in Bangor v. Somerville, 1 N. J. L. J. 252, in which Mr. Justice Depue held that an appeal brought on Monday was illegal where the last day was Sunday, stating that “Sunday has in no case, we believe, been excluded in the computation of statute time.” These, and other cases from federal and foreign jurisdictions, are cited in the opinion -of the state board of tax appeals. These authorities present a persuasive basis for the determination of the board and yet I believe the better reasoning and more recent authority lead to a contrary conclusion.

The rule expressed in Bangor v. Somerville, supra, while it has never been expressly reversed, so far as I can find, yet, seems not to have been followed by our courts in later cases. In the case of Stryker v. Vanderbilt, 27 N. J. L. 68 (at p. 71), where the question involved the tender of a deed, the •contract providing that the deed was to be given on May 1st, which was a Sunday, the court held that compliance with the contract on Monday was legal performance. In Feuchtwanger v. McCool et al., 29 N. J. Eq. 151, Chancellor Runyon held that where the last day for filing an answer fell on Christmas Day, which was a legal holiday, the answer being filed on the next day thereafter on which the clerk’s office was open, was filed in due time.

The opinion of this court in the case of Von De Place et al. v. Weller, 64 N. J. L. 155; 44 Atl. Rep. 874, announces the principle that in the computation of time within which the requirements of a statute is to be complied with where the last day falls upon Sunday or a legal holiday and the act is to be done by the court and not by the party, it may be done upon the earliest succeeding day upon which the court can perform the duty imposed upon it. That case involved the approval of an appeal bond by the trial court in an appeal from a District Court judgment. The statute required that the bond be approved and accepted within five days. The fifth day came on Sunday; the District Court, for that reason, refused to accept and approve the bond on Monday and this court awarded a mandamus directing the District Court judge to do so.

This same case adverts to the fact that if at common law an act be stipulated or required to be done on a day that falls upon a Sunday or legal holiday, the party has the next day within which to perform it. 3 Chit. Pr. 104. The court in that opinion (Von De Place case) approved the doctrine of Stryker v. Vanderbilt, supra, and said: “We think a similar rule should be considered in requiring acts to be done by parlies in the course of judicial proceedings. It will best protect the interest of litigants and must, for this reason, be presumed to carry into effect the legislative intent.” The court in that case further adverted to the decision of the English court in the case of Hughes et al. v. Griffith, supra, viz., that there was a distinction between a thing to be done by the court as against some act to be done by the parties, saying, whether such distinction rests upon any solid foundation seems doubtful. That this is dicta cannot be disputed, but it is based upon what seems to be sound logic and that which will work even-handed justice. By following that reasoning the prosecutor gets his day in court on this case. It is a construction that protects the interests of the litigants and that is an important element in arriving at legislative intent. Our Circuit Courts followed this reasoning in Williams v. Minsavich, 3 N. J. Mis. R. 565; 129 Atl. Rep. 410, and in Melis v. Goldstein, 4 N. J. Mis. R. 498, and other cases; see, also, Great Falls Power Co. et al. v. Andrus et al., 7 N. J. Mis. R. 3; 143 Atl. Rep. 834. The view here expressed is in harmony with the reasoning of our court of last resort in the case of Southern Power Co. et al. v. Cella et al., 105 N. J. L. 573; 143 Atl. Rep. 755, where the question was somewhat similar.

The effect of what is called the Holiday act of 1895, page 781 (Comp. Stat., p. 3092), is to make each and every Sunday dies non so that business in the public offices of this state cannot be transacted. This legislative enactment lends itself to the construction that when the last day for filing a tax appeal falls on Sunday, it may be done on the first business day thereafter.

The result is, therefore, that the determination of the state board of tax appeals and its action in refusing to accept these appeals which came to hand on Monday, October 2d, 1933, the statutory date for filing of appeals, namely, October 1st, having fallen on Sunday, must be set aside.


author: Case, J.

text:
    IN THE MATTER OF THE APPLICATION FOR AN ORDER DIRECTING THE BOROUGH CLERK OF THE BOROUGH OF ROSELLE TO PLACE THE NAME OF HARRY DVORKEN ON THE PRIMARY BALLOT OF THE DEMOCRATIC PARTY.
    Decided May 1, 1934.
    For the applicant, Thomas F. Hueston.

    For the borough clerk, Guy W. Gordon.

   Heard and decided by

Case, J.

Harry Dvorken filed a petition, with the requisite number of signers, seeking nomination as a candidate of the Democratic party for councilman of the borough of Roselle. Upon objection filed, the borough clerk determined that Dvorken was not a member of the Democratic party and' that therefore his name should not he printed on the primary ballot.

I know of no statutory provision stating, in so many words, that a person, to be eligible for nomination by petition upon a primary ballot as a party candidate, must be a member of that party, though the legislative purpose may perhaps be inferred from paragraph 272 of the Election law, Revision of 1930 (Pamph. L. 1930, ch. 187), which provides that “accompanying said petition each person endorsed therein shall file a certificate, stating that * * * he is a member of the political party named therein.” Chief Justice Gum-mere in In re City Clerk of Paterson, 88 Atl. Rep. 694 (not officially reported), considering methods other than the “writing in” process, doubted whether the legislature could limit the members of a political party in making their party nominations to those of their own party. I do not find it necessary to pass upon that question. Assuming, but not deciding, that the legislature may prohibit party voters from endorsing, in a petition for nomination, a person not of their party, and that the legislature has done so, I consider that Dvorken is nevertheless eligible.

Dvorken concedes that in May, 1932, and in May, 1933, he voted in the Republican primary, and if the controversy were over his right to vote in the approaching primary election as a Democrat, the decision would be in the negative, for paragraph 310 of the election statute (amended Pamph. L. 1931, ch. 374, p. 955) provides that “a voter who votes in a primary election of a political party shall be deemed to be a member of that party until two full years have elapsed after casting of such party primary vote.” That paragraph bears upon the subject of who may vote and carries the caption “Balloting Regulations.” As one of paragraphs 307 to 313, inclusive, it is under the general title of “Balloting.” It and they relate to the events of primarjr election day. They are not made applicable, either expressly ox by necessary inference, to the qualifications of a candidate. So that, even if we accept the argument that a person seeking, by petition, to be named on the primary ballot as a candidate for party nomination must, to be eligible, be a member of that party, we need not, I think, conclude that the statutory definition of one who may vote in a party primary is controlling as to one who would be a candidate thereat.

Dvorken insists that he is, and that he was at the time of filing the petition and for many months theretofore, a Democrat. It is undisputed that for nearly a year past he has publicly declared himself to be a Democrat; that during that period he has been affiliated with the “Regular Democratic Club of Roselle;” that at the last election for members of the general assembly he voted for a majority of the members of the Democratic party and that he intends to continue these political affiliations. The election statute is a composite of many laws passed at different periods and with varying objectives. The last revision, like its predecessors, is not fully co-ordinated. Any of its provisions must be studied with respect to their own content, their history and their immediate context rather than by comparison with other disassociated parts. I think it reasonable to suppose that the legislature in requiring, in paragraph 272, supra, the candidate to certify his party membership, intended to apply that test of party allegiance which it had inserted a few lines earlier in the same paragraph, namely, the voting for a majority of the party candidates at the last election for members of the general assembly, and the intention to affiliate with the party at the next ensuing election. By that test Dvorken is a Democrat.

The time for the completion of the sample primary ballots in season for printing and mailing is here, and there is no opportunity for greater analysis or research. I shall sign an order directing that Dvorken’s name be printed on the ballot.


text:
    AGNES SWEENEY, RESPONDENT, v. THOMAS A. LALLY AND ANNA LALLY, APPELLANTS. ANNA ENGLISH AND RICHARD ENGLISH, RESPONDENTS, v. THOMAS A. LALLY AND ANNA LALLY, APPELLANTS.
    Submitted January 26, 1934
    Decided May 2, 1934.
    Before Justices Paekeb, Lloyd and Pebskie.
    For the appellants, William T. Cahill.

    For the respondents, Harry Edelson.

   Pee Cubiam.

These two cases arose out of a collision between two automobiles at a street intersection. The defendant Anna Lally was charged as the driver of one of the cars, and defendant Thomas Lally on the theory of respondeat superior. No question is raised on this phase of the matter. Plaintiff Agnes Sweeney sued for damages to her car, which was being driven by Anna English, who sued for personal injuries, and whose husband, Eichard English, joined his claim per quod.

The two cases seem to have been tried together without a jury. The alleged errors of the trial judge as assigned on this appeal, are in each case, (1) that the court refused a motion to nonsuit “because of the plaintiffs’ contributory negligence, and the absence of proof of negligence on the part of the defendants;” and (2) “that the trial court refused at the close of the defendants’ case to grant the motion for a direction of verdict because of the failure of the plaintiffs to make out a case by a fair preponderance of the evidence.”

As to the first, it is unavailable so far as it relates to absence of negligence on the part of the defendants because that was not invoked at the trial. So far as contributory negligence is concerned, it was clearly a question of fact, as it generally is in this class of cases. As to the second, if it means that there was no question of fact on the issue of negligence, our answer is that the proposition is wholly without substance. If it means that the court sitting as a jury erred in determining that question of fact, the answer is that if there was any evidence to support the plaintiffs’ case (and we find abundant evidence), the finding of the trial court on that issue is impregnable here.

The judgment is affirmed.


text:
    CHARLES H. WALKLET, PROSECUTOR, v. CIVIL SERVICE COMMISSION OF THE STATE OF NEW JERSEY, DEFENDANT. ANNE E. (FISHER) LEFKOWITZ, PROSECUTOR, v. CIVIL SERVICE COMMISSION OF THE STATE OF NEW JERSEY, DEFENDANT. MILTON D. SWACKHAMER, PROSECUTOR, v. CIVIL SERVICE COMMISSION OF THE STATE OF NEW JERSEY, DEFENDANT.
    Argued January 16, 1934
    Decided May 7, 1934.
    Before Justices Case, Bodine and Donges.
    For the prosecutors, Harry V. Osborne and Charles A. Malloy.

    For the defendant, William A. Stevens, attorney-general.
   Pee Cubiam.

The three matters above entitled come before the court on ■separate writs of certiorari but are argued as a single case. The question is whether the civil service commission, after ■determining that the prosecutors had been illegally discharged from their positions by the state highway commission on August 1st, 1933, has fulfilled its duty by ordering their reinstatement with pay as of various dates in October, 1933. The prosecutors contend that the reinstatement should have been without loss of pay as of the date of their discharge, August 1st, 1933, and that the present action of the commission amounts to an illegal suspension for the intermediate period, without pay, without cause and contrary to the civil service laws.

All of the prosecutors were within the classified civil service of the State of New Jersey and were discharged from their positions in the state highway department either without cause or for reasons that the civil service commission determined were inadequate, and in each instance there were junior incumbents of the same classification retained. The implication is that the discharges were for reasons of economy and that the decision of the state highway commission not to reinstate them as of the date of wrongful discharge was for the same reason.

We regret that the inadequate records do not enable us to make definite disposition. The briefs assume that the action below was based upon a money-saving policy adopted by the civil service commission in a statement which is said to have been issued but which is not before us. Rules of the commission said to he controlling are referred to but are not made to appear. The record does not disclose whether the commission undertook to pass upon the right of the prosecutors to their several salaries for the time they were not in the state service or simply made reinstatement leaving open the right to interim compensation. If we are to understand that prosecutors seek the equivalent of a command upon the state to pay, we are not shown how this may be accomplished by certiorari. There is no proof as to what, if any, attempt was made by the prosecutors to obtain employment during the period of discharge, or as to what, if any, outside compensation was received during that period; and the briefs do not touch upon the relevancy of such questions.

Therefore we can only say, generally, that in our opinion the commission is not vested with authority to detach classified employes from their positions and their salaries, for the-purpose of economy, while junior employes in the same classification remain undisturbed; and, specifically, that when a discharged employe raises, in his appeal to the commission, the question of his right, under section 34 (Pamph. L. 1930, ch. 176), to restoration without loss of pay, he is entitled to a decision on the complete issue thus presented. The decisions as made fail, we think, to meet that requirement squarely in that while they provide that the prosecutors shall be restored to their respective positions and shall be paid from the time of their restoration, they contain no expression as to the intermediate period.

The decisions will therefore be set aside, to the end that the commission, either with or without further proofs, as it may determine, reach and express conclusions comprehensive of the issues. Costs will be allowed to the prosecutors.


text:
    HAROLD BLOCH, PLAINTIFF-APPELLEE, v. JACOB EGERT AND J. P. L. CORPORATION, DEFENDANTS-APPELLANTS.
    Submitted January 26, 1934
    Decided May 14, 1934.
    Before Justices Pakiceb, Lloyd and Perskie.
    Por the appellant, Charles H. Roemer.

    Por the appellee, Saul M. Mann.

   Per Curiam.

This was an action of replevin, the dispute being between two chattel mortgagees, as to priority of the respective mortgages. The trial was without jury. The judge found, and the evidence justified him in finding, that plaintiff’s mortgage, though dated on September 30th, was in fact executed and delivered on the afternoon of September 29th, to the knowledge of the defendant, and recorded at ten-fifty-two on the morning of the 30th; and that defendant’s mortgage was executed on the morning of the 30th and recorded on that day at ten-eight a. m., shortly before plaintiff’s mortgage. It is not suggested that plaintiff lost his rights by lack of promptness in recording his mortgage; and as defendant had actual notice of plaintiff’s earlier mortgage, plaintiff had the prior right of enforcement as against the property. Hoagland v. Shampanore, 37 N. J. Eq. 588. The defendant corporation first sold under its mortgage and bought in the property; then plaintiff did the same, demanded possession, and brought this suit, for the property or damages. The District Court' held plaintiff entitled to recover and awarded judgment for $200 damages, interest and counsel fee.

The first point argued, based on the first specification of alleged error, is that “the trial court erred in awarding judgment in favor of the plaintiff-appellee because there was no proof adduced by the plaintiff of the value of the goods contained in the writ of replevin.” Assuming that there was no proof of value, the lack of that proof would not disentitle plaintiff to any judgment whatever, for at least he would be entitled to nominal damages. Hasselbusch v. Mohmking, 76 N. J. L. 691, 694; 73 Atl. Rep. 961.

The second point (and second specification) is that “at the close of the case appellants moved for a direction of a verdict on the ground that the plaintiff-appellee had failed to prove damages. The,court denied the motion and appellants asked for an exception and the same was granted.” This is not supported in point of fact. The state of the case fails to show any such motion, and the court, when ruled to certify on that point, replied in the negative.

The third specification, argued as the third point, is that, “at the close of the case defendants-appellants moved for a direction of a verdict on the ground that the court had no jurisdiction to determine the priorities of the mortgages. The court denied the motion and appellants asked for an exception and the same was granted.” This also is negatived in point of fact by the certificate of the trial judge, which is conclusive. Ryan v. State, 60 N. J. L. 33; 36 Atl. Rep. 706 (reversed on another ground—at p. 552); 38 Id. 672; Connolly v. Public Service Railway Co., 94 N. J. L. 157, 160; 109 Atl. Rep. 507; Klemmt v. Yeskel, 102 N. J. L. 418, 421; 131 Atl. Rep. 871; State v. Merra, 103 N. J. L. 361, 362; 137 Atl. Rep. 575.

The fourth point (specifications 6 and 7) is that the judgment against defendant Egert was erroneous, because what testimony there was as to him indicated merely that he acted as agent (president) of the corporate defendant, and in nowise in his individual capacity. Apart from the fact that there is nothing to show that the trial court was asked to exclude Egert from the judgment, the rule is settled that in a tort case (and replevin is such) both principal and agent may be held liable.

The fifth point (specification 10) is that “the judgment is contrary to law.” Such a specification has no legal value, as it fails to specify. Booth v. Keegan, 108 N. J. L. 538; 159 Atl. Rep. 402. However, we have examined the argument made in the brief under this point, some of which seems irrelevant, some erroneous in point of fact, and the rest ill-founded in point of law.

The judgment will be affirmed.