text:
    New York and New Jersey Water Company v. North Arlington Borough.
    [Decided December 15th, 1909.]
    1. A borough ordinance providing that any person desiring to dig up or open the public streets shall apply to the mayor in writing describing the place for which permit is desired, and the object of opening the street, and that the mayor shall have power to grant the permit whenever in his judgment it may seem proper, is valid under Borough law (P. L. 1897 p. 285 § 28) giving boroughs the power to prescribe the manner in which corporations or individuals shall exercise any privilege granted to them in the use of any street, or in digging up the same for any purpose.
    2. An application addressed to the mayor and council of a borough for a permit to open streets is not a compliance with an ordinance requiring the application to be made to .the mayor.
    8. xl water company is not entitled to an injunction against interference with its proceeding to open streets for the purpose of laying pipes where it has not applied to the mayor of the borough for a permit as required by a borough ordinance, though the mayor and council to whom the company did apply imposed unreasonable conditions on the granting of the permit.
    On motion for preliminary injunction.

      Mr. Gilbert Collins, for the motion.

      Mr. John M. Bell and Mr. Warren Dixon, contra.

   Howell, V. C.

The complainant, a water company, owns the right of way for a pipe line which it is constructing to augment the water-supply of the city of Bayonne, which runs from the Passaic river in an easterly and westerly direction across the borough of North Arlington. It crosses three streets, Eiver road, Kearny avenue and Schuyler avenue. The company is now engaged in constructing a pipe line in this right of wajr, and in order to finish its work it is necessary to cross the three streets named. This crossing cannot be effected without digging up and opening the surface of the street to make the trench in which the water pipe shall eventually be laid. The company on November 1st iast, for the purpose of obtaining a permit to open those three streets and lay their pipe therein, addressed a communication to the “Mayor and council of the borough of North Arlington/'-1 in which it informed the mayor and council that it was engaged in laying a thirty-inch pipe line from Belleville to Kearny, and thence to the city of Bayonne, which would necessarily cross the three streets named, and that it would be necessary for the company to open and excavate across each of the said streets; that it claimed to own the property to the centers of the streets and that it was lawfully entitled to lay its pipes across and under the same, subject only to proper supervision and regulation from the mayor and council as to the method of doing the work in order to avoid accident and any unnecessary interruption of traffic. The communication doses with the following:

“Application is therefore hereby made to your honorable body to issue a permit for the opening of such streets and the laying of the said pipe under and across the same under such proper regulation and provision by your engineer as you may fix. We request that you take action on this matter promptly, and remain,

On November 3d last, this communication was presented to the common council of the borough, and the permission sought was refused except under such hard conditions that the company felt that it could not comply with them. The borough then assumed the attitude of opposing the construction of the pipe line across the said streets, and thereupon the water company filed its bill of complaint to restrain the borough from interfering with the laying of its Avater pipe across said highways, the complainant offering to submit to any regulation for the doing of the work which this court might prescribe. The bill alleges that there is no general ordinance on the subject of opening highways in the borough of North Arlington, but it appeared on the argument that there Avas an ordinance which took effect on July 2d, 1900, and is still in force, by which it was provided that if any person desired to dig up or open the public streets of the borough he should apply to the mayor in writing, describing the place, avenue, street or highway for which permit is desired, and the object of opening the same, and that the mayor should have power to grant the permit for such purpose whenever in his judgment it might seem proper. The ordinance contains other provisions for the protection of the borough and its highways, and provides punishment by fine or imprisonment for such persons as may violate its commands.

This ordinance seems to be within the provisions of the twenty-eighth section of the Borough law (P. L. 1897 p. 285). That section gives to boroughs the power

“to prescribe the manner in which corporations or individuals shall exercise any privilege granted to them in the use of any street, road or highway, or in digging up the same for any purpose whatever.”

Eor the purposes of this motion it will be considered to be a valid ordinance, and within that class of ordinances which passed under review in the supreme court in Cook v. North Bergen, 72 N. J. Law (43 Vr.) 119, in which the ordinance in question, passed by the toAvnship of North Bergen, resembled in its general features the ordinance uoav under consideration.

Section 23 of the Borough act provides that the council of the borough shall consist of the mayor and councilmen, so that when the complainant addressed its application for leave to open the street "To the mayor and council of the borough of North Arlington/’’ its communication must be held to have been addressed to the council. This is not a compliance with the ordinance, which provides that the application shall be made to the mayor, to whom is confided the power to grant a permit * * * whenever in his judgment it may seem proper. Counsel for'the complainant argues, however, that inasmuch as the application was addressed to the mayor and council it was within the terms of the ordinance, for the reason that the addition of the words “and council” was supererogatory, and that it was a proper application because the mayor is ex-officio a member of the council, and further because the mayor participated in the reception and refusal of the application, and that inasmuch as the refusal was based upon unreasonable conditions the refusal was a void act, and that the complainant therefore has a right to proceed to open the streets without anybody’s permission. I think that the conditions which the mayor and council attempted to impose upon the complainant were unreasonable to the highest degree, and that the only conditions which may be imposed by anybody in granting an application under that ordinance are conditions which are necessary for the proper protection of the borough and its public highways, and these appear to me to have, been fully covered by the provisions of the ordinance. I think, however, that the unreasonable nature of the conditions imposed will not relieve the complainant from making its application in accordance with the provisions of the ordinance. The application should be made to the mayor, and his refusal, if he should see fit to refuse, must be put upon grounds which are not unreasonable in their character, but which are necessary for the proper protection of the borough and its highways.

The result is that the injunction must be denied.


source: Caselaw Access Project

author: Howell, V. C.

license: Public Domain

text:
    Mattie Stout v. Portland Cement Company.
    [Decided December 24th, 1909.]
    1. The answer must always support the cross-bill.
    2. An upper riparian proprietor unlawfully depriving a lower proprietor of the waters of the stream may not, in the absence of any contract between the parties or equity or obligation, maintain a bill to restrain the lower proprietor from suing at law for past damages to ascertain the extent and character of the upper proprietor’s violations and to award damages therefor merely to prevent a multiplicity of actions, and because the lower proprietor made no complaint for two years during which the upper proprietor unlawfully took water from the stream.
    On motion for preliminary injunction.

      Mr. Conover English, for the motion.

      Mr. William C. Oebhardt, contra.

   Howell, V. C.

The complainant is the owner of a mill site on Pohatcong creek, in Warren county. The defendant owns about seven hundred acres of land through which this creek runs; its land adjoins the land of the complainant, it being the upper and the complainant the lower riparian proprietor. The defendant has established a large factory for the manufacture of cement on its property, and in the course of its manufacturing process it takes large quantities of water from the creek.

In the early part of the present year the complainant filed her bill in this court alleging that the defendant had been taking from the creek for its own purposes so much of the water as to sensibly diminish the amount which otherwise would naturally flow from its land to that of the complainant, and she prays that the defendant may be enjoined from diverting, pumping, forcing or in any other way conveying the waters of the creek or its tributaries or any part thereof from their natural channel and customary course. On filing this bill a motion was made for a preliminary injunction. This was heard before Vice-Chancellor Walker, who denied the motion upon the ground that the complainant had knowingly suffered the injury complained of to continue for two years and upwards without applying for relief, and further, that in a case where the relief would, if granted, effect the stoppage of the defendant’s business, the delay was fatal to the application for a preliminary injunction. There was likewise,,the objection that the complainant’s right had not been established at law.

The defendant answered this bill and therein claimed that it had the right to use some of the water of the creek; that such use was essential to the operation of its plant; that the complainant had been cognizant from the beginning of the defendant’s operations there; that it was the defendant’s intention to continue to use the water; that it had had the actual and continued use of it since January, 1903, and that in the meantime the complainant had taken no legal proceedings to enjoin it from so doing. There is likewise a denial that the taking of the water from the creek interfered with or diminished the power afforded by the stream for the complainant’s mill, and a further allegation that the complainant has not been damaged by reason of anything that the defendant has done.

The complainant then brought an action in tort against the defendant in the Warren county circuit court, in which it declared that the defendant for the six years preceding the beginning of the action wrongfully and unlawfully diverted and turned unnecessary and unreasonable quantities of water from the creek away from the complainant’s mill and stopped the water of the creek from running and flowing along its usual course to the complainant’s mill and from supplying the same with water for the necessary operation thereof, and that by reason thereof the water of the said creek did not run or flow to the complainant’s mill as the same of right ought to have done and otherwise would have done, and alleging damages amounting to $20,000.

The defendant, by leave of the court, now files a supplemental answer by way of cross-bill against the complainant in which the foregoing facts are alleged and by which it prays that the complainant may be enjoined from further proceeding with her said action at law, and that it may be determined and decreed, in case the complainant is entitled to a writ of injunction as prayed for in her said bill, what amount of compensation, if any, should be awarded to the complainant as just and equitable in lieu of the issuance of the writ of injunction prayed for in the complainant’s bill.

Tt will be observed, therefore, that there, are now two suits pending, one in this court and one in the Warren county circuit court. The suit in this court is for an injunction to prevent the defendant from future disturbance of the complainant’s right. The common-law action is an action for damages for past infractions of the same right. What the defendant is now seeking to do is—-first, to stay the suit for past damages; second, to have it determined by this court whether the defendant is now or has been in the past guilty of a violation of any right of the complainant to fiowage of water, and third, if the court finds that there is such an infraction of the complainant’s right that it will ascertain the extent and character thereof and award to tho complainant such damages as she may he entitled to, which damages the defendant stands ready to pay. As a question of pleading it ma}f be said that the answer must always support the cross-bill. There is a variance between them in this ease which must count strongly against the defendant. The answer denies all the injury complained of, while the theory of the cross-bill is that the defendant is committing a continuous trespass on the rights of the complainant, and that it desires to continue the same trespass indefinitely and to pay therefor such sum as this court may assess. If the defendant is guilty of the charge laid to its door it is depriving the complainant of a valuable right in the waters of the creek, and this right is property to which the complainant is entitled. Shortly, then, the case under the cross-bill takes upon itself the aspect of an attempt to take private property for private uses upon such compensation being made as the court may award. This, of course, is not to be thought of. There is no proceeding known to the law by which one man can take the property of another for the private use of the taker, no matter what rate of compensation may be offered. This would be an interference with vested rights and cannot be permitted. It will be observed that there is no contract between these parties upon which the cross-bill in this case can be predicated, nor is there any equity alleged by which the bill can be supported, excepting that the jurisdiction invoked may be exercised to prevent a multiplicity of suits. I do not understand that the doctrine touching the power of this court to interfere with a multiplicity of suits extends to the case made by the cross-bill. In short, what the defendant says is this:

“I am committing a most flagrant disturbance of the right of the complainant for which she is suing me. I desire to continue my trespass and to enjoin her suits for damages, not because I have any right in her land, but because she is bringing actions to defend the title to her property which I want and aih willing to pay for.”

The fact that the complainant lay still and made no complaint for a period of two years, during which time the defendant took water from the stream, may have been sufficient laches to have justified the court in denying to her the provisional relief which she sought, but is she to be deprived of the title to her estate because she did not bring suit immediately upon the beginning of the trespass?

A case similar to this is Stevenson v. Morgan, 64 N. J. Eq. (19 Dick.) 219. There the complainant brought suit in this court to restrain the defendant from raising his dam and flowing the complainant’s land; he also asked for an assessment of unliquidated damages for injuries caused by past overflows. Vice-Chancellor Grey, who heard the case, held that the equitable relief by injunction against future overflows and the right to recover damages for past overflows were not parts of the same cause of action and that each might be prosecuted separately from the other. A very common instance of a procedure of this sort arises in actions for nuisance, where it is quite the customary thing to bring a common-law action for past damages and at the same time exhibit a bill for an injunction to prevent future injuries.

It was said on the argument on behalf of the defendant that the very thing sought to be done by it in the case at bar had time and again been done in this court and been sanctioned by the court of errors and appeals, and a number of cases was cited in support of the statement. Among the others is Sparks Manufacturing Co. v. Town of Newton, 57 N. J. Eq. (12 Dick.) 367. That was a case in which the complainant sought to restrain the town of Fewton from diverting water from the stream which supplied their mill to furnish a municipality with potable water. The court found on the facts and the law in favor of the complainant and proceeded to assess the complainant’s damages by reason of the diversion; this course was taken because both parties joined in requesting it. Vice-Chancellor Pitney said {p. 392) that inasmuch as both parties had submitted themselves to the jurisdiction of the court, and requested that he should determine the amount of compensation, he felt constrained by the state of the authorities to assume that jurisdiction. This view was coincided in on appeal in Ingersoll v. Newton, 60 N. J. Eq. (15 Dick.) 400.

A perusal of this case will disclose the fact that the main ground for jurisdiction to assess damages was the fact that both parties had submitted themselves to the jurisdiction of the court, on that question.

The Passaic river pollution cases are also cited as an example of what the court may do in the same direction; but these eases stand not upon the power of the court to take a man’s property and devote it to private uses by other people upon compensation, but rather upon the equitable consideration of convenience. There the court found that the city of Paterson was guilty of polluting the river, but denied an injunction to stop it on the ground that it would work great injury to the defendant to stop immediately the flow of its sewage into the river, and for that reason suggested a substitutionary remedy, the resort to which was assented to by the defendant. These cases necessarily stand by themselves and are no authority for what the defendant here seeks to do. Another class of cases is illustrated by Paterson and Newark Railroad v. Kamlah, 47 N. J. Eq. (2 Dick.) 331. There a railroad company having the power of condemnation obtained possession of land which belonged to Kamlah; he brought ejectment. This court enjoined his suit and ascertained the value of the land and the damages and directed that he should make conveyance to the company upon payment of the amount so ascertained; but this was based upon the fact that the company had the right of condemnation, and the legislature had provided a method by which the railroad company might acquire title. There is nothing in the report to show whether the parties consented to that particular method of ascertaining the value or not. Yice-Chancellor Pitney refers to the remedies arising out of the power of condemnation in the case of Sparks Manufacturing Co. v. Newton, supra.

In New York and Greenwood, Lake Railroad Co. v. Stanley, 34 N. J. Eq. (7 Stew.) 55; affirmed, 35 N. J. Eq. (8 Stew.) 28S, there was an agreement between the defendants and the Montclair Eailway Company by virtue of which that railway company entered upon the defendants’ lands and constructed its railway over them. The railway company did not perform the covenants of the contract on its part to be performed; .it failed, and after two foreclosures title to the railroad line came to the complainant company, which filed its bill to enjoin an action of ejectment which the defendants had begun, and to obtain title upon the performance of the agreement made by the Montclair Eailway Company. The defendants, by their answer, declared their willingness to convey on receiving compensation for their land and damages assessed as of the date when the Montclair Eailway Company went into possession, with interest. The chancellor held that the complainant had a right to equitable protection against the defendants’ legal right to the same extent, and on the same terms, that the Montclair Eailway Company would have been entitled to it, and thereupon assessed damages in accordance with the submission of the parties. On appeal the same position was taken.

In these cases and in all the other cases cited on the defendant’s brief there was some right or some equity or some contractual relation which permitted the court to compel a transfer of title upon an ascertainment and payment of proper compensation. In the case at bar I find neither contract nor equity nor obligation of any kind on the part of the complainant which can be made the basis of the decree which the defendant seeks. She shall not lose her right because she did not immediately protest against the trespass. In short, the action of the defendant appears to me to be a pronounced disturbance of the complainant’s right, begun without even a claim of right and continued deliberately and with the intention of-compelling the defendant to yield to the demands of the complainant. This is a situation which no court of conscience could look upon with any degree of favor.

There was considerable argument on the question whether this court had the right to assess unliquidated damages, but in view of the result that I have reached it will be unnecessary to enter upon that somewhat vexed question.

I will advise a decree denying the defendant’s motion for a preliminary injunction.


author: Walkeb, Y. C.

text:
    In the matter of the sale of lands devised to St. Michael’s Church, Atlantic City, by James Doris, deceased.
    [Decided October 20th, 1909.]
    1. Wherever a testator devises and bequeaths property for charitable uses, a residuary legatee under the will has no interest in the trust property save as one of the public, and can question the proceedings of the holder of such trust property only by bill and information preferred on behalf of himself and all others similarly interested, in conjunction with the attorney-general, representing the public, or' by a class-bill making the attorney-general a defendant.
    2. In proceedings for the sale of lands under public statutes, which proceedings are ex parte and where no provision is made to let in anybody to defend, no one claiming right, title or interest in the lands may intervene in the proceedings, as such rights as he may have will not be affected by any order or decree that may be made in the premises.

      3. Where an act of the legislature provides for the sale of land in ex parte proceedings if it shall be made to appear that the interests of the owner thereof or of a particular estate therein will be promoted by such sale, the rights of others claiming interests in the premises will be protected by the limitation that the lands shall not be sold unless it be. to the interest of such owner, as his interest protects the interest of all others claiming rights therein.
    4. The act of April 17th, 1905 (P. L. 1905 p. 287), amended May 15th, 1907 (P. L. 1901 p. J¡08), authorizing the sale of land granted or devised to religious associations, or to corporations formed or existing for the purpose of education, or to officers or trustees of such corporation, in certain cases, is prospective and not retroactive.
    5. An amendatory act, like other legislative enactments, takes effect only from the time of its passage and approval, and has no application to prior transactions, unless an intent to the contrary is expressed in the act or is clearly to be implied from its provisions.
    On application for sale of lands devised to a religious corporation, and on application of an individual for leave to answer and contest the application.

      Mr. Peter Baches, for St. Michael’s Church.

      Mr. Clarence L. Cole, for Catherine Bloomer.
   Walkeb, Y. C.

St. Michael’s Church of Atlantic Oityr, a religious corporation organized under the statute of this state, filed a petition showing that James Doris, late of Atlantic City, died September 9th, 1906, leaving a last will and testament which was duly admitted to probate; that by such will he gave to St. Michael’s Church a tract of land and a legacy in the following words:

“I give, devise and bequeath unto St. Michael’s Church of Atlantic City, New Jersey, the vacant lot of ground on Atlantic avenue, adjoining where I reside (one hundred and ten feet front by one hundred feet deep) for the purpose of building a church and school on said lot, and also direct that the sum of ten thousand dollars shall be given towards the building' of said church on said piece of ground.”

The petition proceeds to show that the lot so devised is located on Atlantic avenue, the main business thoroughfare of Atlantic City; that along the avenue is a double track overhead trolley railway, the traffic on which is constant during the summer season and is continuous during the entire twenty-four hours of the day; that the avenue is traversed by all persons who enter or leave the city by automobile or other conveyances; that the traffic along the avenue is very noisy; that almost its entire frontage is used for stores, saloons and hotels; that the lot devised is located adjacent to a licensed saloon and barroom, and that stores and places of business surround it; that owing to the constant traffic and noise along the avenue and its close proximity to stores, saloons and other commercial establishments, the lot is unsuited for the purpose of erecting either a church or school building thereon; that the situation and circumstances of the place are such that the interests of the corporation will be promoted by a sale of the land and by devoting the proceeds thereof in erecting a church edifice for the use of the congregation upon other lands situated in a location more accessible to the immediate homes of the members of the congregation of the church, and one more desirable and suitable for church and school purposes.

The application of the church is based upon “An act authorizing the sale of land granted or devised to religious associations, or to corporations formed or existing for the purpose of education, or to officers or trustees of such corporations, in certain cases,” approved April 17th, 1905 (P. L. 1905 p. 287), and the amendment thereto, approved May 15th, 1907 (P. L. 1907 p. 462).

The act mentioned, as amended, provides that the chancellor may, in a summary manner, by reference to a master, proceed to inquire into the merits of the application; and if it shall satisfactorily appear to the court that the interests of the petitioner will be better promoted by the sale or disposal of the property, the chancellor shall authorize and direct the petitioner to sell or dispose of the lands, or any part thereof, and that the proceeds may be invested in securities in which trustees are authorized by law to invest, or, in the discretion of the trustees, may be set apart and devoted to such use or uses not inconsistent with the nature and objects of the association or corporation as under the existing situation’ and circumstances in the place where the lands are located, will better promote the interests of the corporation, the determination of the trustees to be first reported to the chancellor to be approved by him before the proceeds shall be invested or set apart and devoted to such uses.

Upon filing the petition reference was made to a master who has reported that the devised lot is wholly unsuited for the location of a church and school, especially for the church and school of the petitioner, and that the interests of the petitioner will be better promoted by a sale of the lot and investment of the proceeds in the purchase of a lot in a locality free from the objectionable features of the devised lot, and more comfortable, accessible and available to the members of the congregation and school.

The petitioner moves for the confirmation of the master’s report, and Catherine Bloomer, a sister of the devisor, who is the residuary legatee named in his will, petitions the court for leave to be let in to answer and contest the petition and offer proof to controvert the material and relevant facts therein set forth. She alleges that because her brother, James Doris, died after the act of 1905 became effective, the church cannot avail itself of the provisions of the act; that if the church is allowed to sell the land or cause the same to be used for any purpose other than a church or school, it will be contrary to the will of James Doris, whose wish it w'as that a church and school might be erected on the devised lot .as a monument to his memory.

It is contended, on behalf of Catherine Bloomer, that she has an interest as residuary legatee under the will of her brother which will permit her to be heard to prevent a diversion of the trust estate. This contention, in my judgment, is untenable. The devise in question and the legacy bequeathed in conjunction with it are for charitable uses, and, therefore, the petitioner, Catherine Bloomer, is interested, if at all, only as one of the public. Therefore, she could only question the proceedings of the trustee, St. Michael’s Church, in conjunction with the attorney-general, representing the public, by bill and information. Larkin v. Wikoff, 75 N. J. Eq. (5 Buch.) 462. Another remedy open to her would be a bill on behalf of herself and all others similarty interested, making the attorney-general a defendant. See Lanning v. Commissioners of Public Instruction, 63 N. J. Eq. (18 Dick.) 1.

There is another reason why the petitioner cannot intervene in this cause, and that is, because no provision is made in the act under which these proceedings are taken for letting in anybody to defend. This being so, if Catherine Bloomer has any rights, they will not be affected by any order or decree that may be made in this cause.

In Cool’s Executors v. Higgins, 23 N. J. Eq. (8 C. E. Gr.) 308, it was held:

“The rights or liens of encumbrancers who are not required to have notice, or who do not have notice of the proceedings, are not affected by the sale. The purchaser holds subject to legacies charged on the lands.”

In that case Chancellor Zabriskie remarked (at p. ,311) :

“The act is not framed for avoiding liens or encumbrances. It requires no process. No notice is to be given, except to such persons as are entitled to vested or prospective estates in the premises. No provision is made for notice to encumbrancers or lien claimants. The proceeding can be by petition only, and not by bill, and no subpoena or other process can be issued.”

So it is with the act under which we are proceeding in this matter. It merely provides that if it shall be represented to the chancellor that, &c., he may proceed in a summary manner by reference to a master to inquire into the merits of the application, &c. It is not even provided how the proceedings shall be instituted. In this the act is lame. It should, I think, have provided, as is usual in such cases, that the proceeding should be instituted by petition. However, there is no provision for charging any person as defendant, and no provision for the issuance of process, and, therefore, nobne can be admitted to defend. In this situation, as already shown, no rights of third parties can be affected. If Mrs. Bloomer has any interest as one of the public it can be protected by a proceeding of the character above pointed out.

But, it would appear, that Mrs. Bloomer is protected in any event by the terms of the act under which these proceedings are taken, because it is provided in tbe act that a sale may be had only if it shall appear that the interests of the corporation will be promoted by a sale. Now, if she has interests, those claimed by the corporation are hers, and what would benefit the corporation would benefit her. Said Chancellor Zabriskie, in Cool’s Executors v. Higgins, supra (at p. 312) :

“The act only authorizes the sale where it will promote the interest of the owners of the particular and future estates, and when it would be the interest of anyone who might own the lands in fee to sell. This limitation of the power protects the tenant in remainder. If it will injure his interest the sale must not be directed. * * * If this power is wisely exercised it will prevent all injury to the remainderman in eases where it would be the interest of the owner of the fee to sell.”

Thus it would appear that the interest of Mrs. Bloomer, as residuary legatee, if any she has, would not be injured by a sale of the devised premises in these proceedings, for they would be ordered to be sold only if it appeared that the interests of the corporation who holds them to charitable uses would be promoted by the sale, and, as airead}!- remarked, the corporation’s interests are her interests, if any she has.

So far as the claim that the church proposes by selling the land and acquiring another lot and building a church and school' thereon, to divert the legacy of $10,000, it is sufficient to say that that question cannot be litigated in this matter. Litigation concerning a legacy surely camiot be imported into a statutory proceeding for the sale of lands. As already pointed out Mrs. Bloomer's remedy, if she be entitled to any, is by bill and information, or by bill on behalf of herself and the class she represents, making the attorney-general a party defendant.

It was also contended on behalf of Catherine Bloomer that the act of April llth, 1905, does not apply to wills made after its date. This contention, in my judgment, is not tenable; and while Catherine Bloomer is without standing to raise the question, it will, nevertheless, be noticed, as an examination of the statute under which these proceedings were instituted will disclose, that the trustees’ case does not fall within its provisions.

The language of the statute is “Wherever lands and tenements may have been granted, conveyed or devised to religious associations,” &c.

The supreme court, in State, Alden, prosecutor, v. Newark, 40 N. J. Law (11 Vr.) 92, held:

“The words shall have been, or shall be, in the act passed April 9th, 1875, to heal defects in public notices, are prospective and not retrospective. The intent to make statutes retroactive must clearly appear by express words ox by necessary implication.”

And Mr. Justice Scudder, speaking for the court, remarked (at p. 98) :

“ ‘Shall have been’ is in the future perfect tense, which represents an event as completed in future time, and ‘shall be’ represents what will take place in future time. If the legislature had intended to make the law retroactive it would have been easy to express it by the use of the words has been or had been, in the present or past perfect tense, or other equivalent words.”

The words “may have been” are also in the future perfect tense, and, therefore, it appears that the statute of 1905, by its very terms, is prospective and not retroactive. But it was materially changed by the amendment of 1907, and the petition preferred by St. Michael’s Church is, of necessity, rested upon-the amendatory act of May 15th, 1907, for the provisions of the latter superseded the former, so far as the amendment went. The first section of the original act provided that wherever lands and tenements may have been granted, conveyed or devised, &c., upon condition that they shall be held in trust for specific uses and purposes, and appropriating the rents, issues and profits thereof to specific use, but without power to sell and convey, and the specific use to which the rents, issues and profits thereof are dedicated can be enhanced by a sale or disposal of the lands, the chancellor may, in a summary manner, &c. By the amendatory act of 1907 (section 1), the original act is amended so as to provide that wherever lands and tenements may have been granted, conveyed or devised, &c., upon condition that they shall be held in trust for specific uses and purposes, and appropriating the rents, issues and profits thereof to specific use, but without power to sell and convey, and the existing situation and circumstances in the place where the lands are located are such that the interests of the corporation will be better promoted either by the sale or disposal of the lands, or any part thereof, or by devoting them, or any part thereof, to some use or purpose not inconsistent with the nature and objects of the corporation other than the specific use or trust named in the instrument by which the lands are conveyed or devised, the chancellor may, in a summary manner, &c. These were the only provisions existing after May 15th, 1907, the date of the approval of the amendment, and were not in force September 9th, 1906, when James Doris died. His devisee, St. Michael’s Church, has not sought relief under section 1 of the act of April 17th, 1905, by showing that the specific use to which the rents, issues and profits of the land devised could be enhanced by sale or disposal of the same—it could not do so, as that provision of the act had been repealed at the time these proceedings were instituted by the enactment of the amendment. The statute as it originally stood looked entirely to enhancing the revenues of the lands granted or devised in trust. And this view is borne out by the third section of the original act, which provided alone for the investment of the proceeds of sale and the paying over of the interest arising thereon for the uses specified in the grant or devise. I repeat those provisions are no longer in force. Quite different are the provisions of the amendatory act of May 15th, 1907. The application referred to the court in this matter comes directly within section 1 of the amendatory act, and shows that the existing situation and circumstances in the place where the lands are located are such that the interests of the corporation will be better promoted by a sale thereof, and section 3, as amended, provides that the proceeds of sale may be either loaned and invested, or be set apart and devoted to such me or uses not inconsistent with the nature and objects of the corporation as under the existing situation and circumstances will better promote the interests of the corporation. How it is quite obvious that if the land devised can be sold the proceeds of the sale may be invested in other lands in the same locality better suited to the uses and trusts in that behalf contained in the will of the devisor, and upon which trusts alone they may be used. Such disposition of the proceeds, it would seem, could not have been made if a sale could have been had under the act as it originally stood, but can be made if a sale under the amendatory act may be authorized. The devise was to use the land itself and not the issues arising therefrom.

But the language of the amendatory act, namely, wherever lands and tenements may have been granted, conveyed or devised to religious associations, &c., like the phraseology of the original act, is prospective and not retroactive, and, therefore, the will of the late James Doris does not fall within the provisions of the amendment, because he died in 1906, and the amendment did not go into effect until its approval on May 15th, 1907.

“An amendatory act, like other legislative enactments, takes effect only from the time of its passage and has no application to prior transaction unless an intent to the contrary is expressed in the act or clearly implied from its provisions.” 26 Am. é Eng. Eneycl. L. (2d ed.) 112 § 7.

The supreme court of this state has held that the supplement to an act of the legislature goes into operation on the 4th of July next after its passage, unless otherwise specifically provided. State, Vreeland, prosecutor, v. Town of Bergen, 34 N. J. Law (5 Vr.) 438. In line with this case is that of McLaughlin v. Newark, 57 N. J. Law (28 Vr.) 298, in which the supreme court held (at p. 801) that an amendment to an existing statute, which, under our constitution, recites the amended section at length in the amending act, does not express an intention then to enact the whole' section as amended, but only an intention then to enact the change which is indicated. That, of course, means that the original act stands from the time of its passage to the time of the amendment, after which time it still stands so far as not amended, and is changed from that time forth so far only as amended. See, also, Schwarzwaelder v. German Mut. Fire Ins. Co., 59 N. J. Eq. (14 Dick.) 589 (at p. 593). The rule has been stated as follows:

“The portions of the amended sections which are merely copied without change are not to be considered as repealed and again enacted, but to have been the law all along; and the new parts or the changed portions are not to be taken to have been the law at any time prior to the passage of the amended act. The change takes effect prospectively according to the general rule.” 1 Lewis’ Suth. Stat. Con. (2d ed.) 443 § 237.

Therefore, although Mrs. Bloomer has no standing to intervene in these proceedings, and although the master’s report is abundantly supported by the depositions annexed to it, no order can be made for a sale of the devised lot and the investment of the proceeds and the purchase of another lot in Atlantic City in a locality free from the objectionable features of the one sought to be sold, because the amendatory act under which the application is made was not enacted until after the will of the decedent became operative, and as the terms of the amendment are prospective and not retroactive, a case is not made falling within the act now in force. Therefore, both the original application and the petition for leave to intervene must be dismissed.


author: Walker, V. 0..

text:
    The Artistic Porcelain Company v. Noah W. Boch, trading as The American Porcelain Works.
    [Decided October 22d, 1909.]
    1. A contract that the covenantor will not engage in a competitive business, although a contract in restraint of trade, is not opposed to public policy but is valid and enforceable, when the restraint contracted for is partial and is reasonably required for the protection of the covenantee in the use and enjoyment of the particular business the covenantor contracts not to carry on.
    2. It will be presumed that the parties intended to make a valid contract and that they designed to provide a reasonable restraint.
    3. Where the restraint is without qualification it is unreasonable and contrary to public policy; but where it is subject to some qualification, either as to time or space, the question is whether it is reasonable, and, if reasonable, it is good in law.
    4. A contract founded upon adequate consideration that the covenantor will not engage in the manufacture or sale of white porcelain door knobs, unlimited as to space, but limited as to time to a period of approximately five years, is reasonable and will be enforced by injunction.

      On application for preliminary injunction.

      Mr. W. Holt Apgar, for the complainant.

      Messrs. Olarh & Case, for the defendant.
   Walker, V. 0..

The bill of complaint alleges that the complainant corporation, on July 25th, 1906, entered into an agreement in writing with the defendant, which recited that the complainant was then manufacturing black and brown door knobs, shutter knobs and wheels at the plant of the American Porcelain Works, so called, and the complainant thereby sold to the defendant all right, title and interest it might have in the goods, chattels, stock in trade, chemicals, materials and other personal property then on the plant of the American Porcelain Works, for which the defendant agreed to pay a certain price, and the agreement then proceeds:

“The said Boch further agrees as an important part of the consideration of this sale and transfer that he will abstain from the manufacture or sale, directly or indirectly, of porcelain, or of any imitation thereof, except tile, until January first, nineteen hundred ten, except as hereinafter provided, and the said Porcelain Co. agrees that so long' as the said Boch will promptly furnish it with such black and brown door knobs as may be required of it by the Skillman Hardware Mfg'. Oo. not to exceed 150,000 in any one month until May first, nineteen hundred and ten, it will abstain from the manufacture or sale, directly or indirectly, of black and brown door knobs, mineral knobs, black and brown shutter knobs and black and brown wheel, and the said Boch further agrees that until said May first, nineteen hundred and ten, he will furnish to the Artistic Porcelain Co. for the said Skillman Hardware Mfg. Co. requirements of black and brown door knobs not to exceed 150,000 in any one month, said mineral door knob to be delivered to the Skillman Hardware Mfg. Co. and charged at $5.50 per M and Jet at $6.00 per M less 3% discount.”

The parties had business relations with each other under this agreement, with perhaps some variations of its terms (other than those contained in the above-recited part), by mutual agreement, until April 7th, 1909, when they entered into another agreement containing, among others, the following, stipulation:

“It is further covenanted and agreed between the parties hereto that the stipulations, covenants and agreements contained in said contract of July twenty-fifth, nineteen hundred and six between the parties hereto by which the party of the second part binds himself not to manufacture porcelain ware excepting- tile, until January first, nineteen hundred and ten and the party of the first part binds itself not to manufacture jet or mineral door knobs for the same period shall be and the same is hereby extended, as part of this agreement, for five years from said date, to wit, until the first day of January, nineteen hundred and fifteen.”

On June 3d and 11th, 1909, the complainant ordered of the defendant certain jet and mineral knobs which the defendant refused to.supply, writing the complainant under date of June 10th that the defendant did not care to fill the order and recognized .no contract by which he might be compelled to do so, and on June 12th he also wrote the complainant referring him to the letter of the 10th, remarking that he meant exactly what he said and would fill no orders on the complainant’s account.

The bill and affidavits show that in July and August, 1909, the defendant manufactured thousands of white porcelain door knobs and has the same in stock ready to be placed on the market and sold. The bill prays that the contract between the parties may be specifically enforced and that the defendant may be restrained from manufacturing or selling directly or indirectly any white ox porcelain knobs during the period in the contracts mentioned, namely, until January 1st, 1915.

With the injunctive feature of the bill we are at present alone concerned.

Two defences have,been interposed—first, that the agreements are void as being in restraint of trade, and second, that the complainant, has violated the contract and the defendant has elected to rescind.

A contract that the vendor of a business will not engage in a competitive business, although a contract in restraint of tradej is not opposed to public policy but is valid and enforceable when the restraint contracted for is partial and is reasonably required fox the protection of the purchaser in the use and enjoyment of the business purchased. Trenton Potteries Co. v. Oliphant, 58 N. J. Eq. (13 Dick.) 507, 508. In that ease the contract did not embrace one whole area, hut several areas disjunctively described, as the State of Maine, the State of New Hampshire or the State of New Jersey, and it was held that no restriction could be imposed upon the vendor as to any area beyond the State of New Jersey, but within that area an injunction should go restraining competitive business.

The latest case in our courts is that of Fleckenstein Brothers’ Co. v. Fleckenstein, 71 Atl. Rap. 265, in which the defendant sold his business and covenanted not to engage in, promote or give his name to any similar business located within five hundred miles of Jersey City for twenty years, It was held that the restraint was only partial, and was severable and sustainable in so far as it applied to the city, even if unenforceable as to outside territory. The limitation as to time, independently of extent of territory or in connection with it, was not considered.

In these eases it is held that the court will presume that the parties intended to make a valid contract and that they designed to provide a restraint which will be reasonable. This, of- course, is subject to the universal rule that the parties cannot make the law, but must follow it, and when, upon a given state of facts, a rule of law operates, it is inexorable, and the intention of the parties to the contrary must be overriden.

Now, it is perfectly obvious that the restriction as to territory in the agreement under consideration is unlimited. No areas are named as in the Trenton Potteries and Fleclcenstein Gases, and therefore the court is given no opportunity to interpret the contract as to area, in respect to which question there is no room whatever for construction, there being nothing to construe. Therefore, tested alone by the question of extent of territory, the agreement appears plainly to be general and unlimited, and, consequently, inoperative and void. It remains to be seen whether the time limit of the extension agreement, being a period of approximately five years, makes the contract one of partial restraint to such an extent as to take it out from under the operation of the general rule.

In Ping. Treat. L. Cont. (1905), tit. “Restraint of Trade,” 840 et seq., the áuthor lays it down that the result of the English authorities ajDpears to be that where the restraint is without qualification it is unreasonable and contrary to public policy, but where it is subject to some qualification, either as to time or space, the question is whether it is reasonable, and, if reasonable, it is good in law; that reasonableness depends upon all the circumstances, which must be duly weighed in each case; that the American decisions have not gone so far as the English, but that the old law has been a great deal modified in some jurisdictions; that the generality of time or space must always be an important factor in the consideration of reasonableness, although not per se a decisive test; that what is reasonable in a given case is a question not of fact, but of law, for the court.

There are cases holding that a restriction covering a period of five years is unreasonable, as in Bishop v. Palmer, 146 Mass. 469, and there are cases holding that such a limitation of time is not unreasonable, as in Oakdale Manufacturing Co. v. Garst, 18 R. I. 484.

Prom the affidavits submitted it is apparent that there is a large demand for white porcelain door knobs and that they can be readily sold. There is- no showing that they are patented or that anyone has a lawful monopoly in them. I do not see that the rights of the public will be harmed by an enforcement of the agreement made by Mr. Boch, the covenantor.

Vice-Chancellor Green, in Ellerman v. Chicago Junction Railways Co., 49 N. J. Eq. (4 Dick.) 217 (at p. 253), said (quoting from Diamond Match Co. v. Roeber, 106 N. Y. 473) :

“To the extent that the contract prevents the vendor from carrying on the particular trade it deprives the Community of any benefit it might have from his entering into competition. But the business is open to all others and there is little danger that the public will suffer harm from lack of persons to engage in a profitable industry. Such contracts do not create monopolies. They confer no special or exclusive privileges.”

My judgment is that the covenant in question, which is certainly founded upon adequate consideration, is not one in illegal restraint of trade, but is valid and enforceable.

Several defences on the facts were urged at the hearing. One was that the defendant had been dragooned into making the contract. This contention is without force. He certainly was not subjected to any duress, and even if he dealt at some disadvantage ‘with the complainant, being sui juris, he could have refused to deal at all. On this head no ground is presented justifying a refusal to enforce the contract.

Another defence was that the complainant had violated the contract and the defendant had a right to treat it as rescinded. Much of the claimed violation occurred prior to the agreement of April 7th, 1909, which expressly provides that the stipulations and agreements of the contract of July 25th, 1906, concerning the subject-matter of this suit, shall be extended for five years from January 1st, 1910. That is not all: Mr. Boch in "his affidavit says that on May 24th, 1909, he signed and mailed to the complainant company a notice wherein he informed the complainant that under the contract of July, 1906, there was due to him, with reference to firing kilns, the sum of $720 a year, amounting to over $1,500; also that upon refusal of payment or recognition of the claim it would result in a forfeiture of the contract. Furthermore, in his affidavit he denies that with the exception of such modification as may be contained in the contract of April 7th, 1909, there was any modification agreed to by him concerning the subject-matter of the documents, and he says he denies that he consented to any modification of the. condition concerning the firing of kilns.

Defendant makes the further contention that he is financially responsible and that the complainant has an adequate remedy at law. The innumerable instances in which a violation of a contract of the kind under consideration has been enjoined are rested upon the ground that from the nature of such cases just and adequate damages cannot be estimated for a breach of the contract, and that injunctive relief avoids a multiplicity of actions. The objection is not tenable.

The complainant, in my opinion, is entitled to the relief it seeks. The result is the order to show cause will be made absolute, and an injunction will issue according to the prayer of the bill. The complainant is entitled to costs against the defendant.


author: Walker, Y. G.

text:
    The Title Guarantee Land Company v. The Mayor and Aldermen of the City of Paterson et al.
    [Decided December 24th, 1909.]
    1. As to whether a subsequent legislative act repeals by implication a former one, the canon of construction is: If both acts can stand together both shall stand, but if they are so repugnant to each other that both cannot stand together, the former gives place to the latter.
    2. There is no repugnancy beween the act of March 80th, 1886, commonly called the Martin act (Gen. Stat. p. 3370). and the act of April 8th, 1903, commonly called the General Tax act (P. L. 1903 p. 394), and therefore the latter does not repeal by implication any of the provisions of the former.
    3. A sale of land by the city of Paterson under the provisions of the Martin act as amended by the supplement of June 2d, 1905 (P. L. 1905 p. 457), is valid.
    On final hearing on pleadings and agreed state of facts.

      Mr. Thomas G. Simonton, for the complainant.

      Mr. Edward F. Merrey, for the defendants.
   Walker, Y. G.

The city of Paterson, under appropriate proceedings, sold a lot or tract of land belonging to the complainant, by virtue of the provisions of the act entitled “An act concerning the settlement and collection of arrearages of unpaid taxes, assessments and water rates or water rents in cities of this state, and imposing and levying a tax, assessment and lien in lieu and instead of such arrearages, and to enforce the payment thereof, and to provide for the sale of lands subjected to future taxation and assessment,” approved March 30th, 1886 (Gen. Stat. p. 3370), commonly called.the Martin act.

The complainant’s contention is that the Martin act was repealed by the act entitled “An act for the assessment and collection of taxes,” approved April 8th, 1903 (P. L. 1903 p. 394), commonly called the General Tax act, and that, therefore, the sale is ultra vires and a clond upon its title, which it seeks to have removed. A companion act to the one last mentioned is the act entitled “An act to repeal sundry acts concerning taxes,” also approved April 8th, 1903. P. L. •1903 p. 436. The unquestioned object of the latter act was to repeal prior acts inconsistent with the former, and it is significant that it contains no repealer of the Martin act. Besides this repealing act, the General Tax act, in its last section, contains a repealer of all acts, general and special, inconsistent with its provisions; and whether it did so or not, it would operate to repeal all inconsistent provisions in other acts.

The complainant insists that the provisions of the Martin act relating to the collection of taxes in arrears, is, by implication, repealed by the General Tax act, which, among other things, provides a method for the collection of delinquent taxes. The method and character of sale provided for in the General Tax act is to be found in P. L. 1903 p. 4@8 § 52,' as amended by P. L. 1906 p. 387. There is no substantial change made by the amendment. The provision is that the land shall be sold to such person as will purchase the same for the shortest ternj, or in fee where no one will bid for a shorter term. As is well known, all sales under the Martin act are made in fee.

As to whether a subsequent act repeals by implication a former one, the canon of construction is: If both acts can stand together both shall stand, but if they are so repugnant to each •other that both cannot stand together, the former gives place to the latter.

Let us examine the two acts to see if there be discoverable in them any such repugnancy as will operate as a repeal of the former.

Prior to the passage of the General Tax act of 1903, taxes were assessed and collected in cities of the state under charters, and the provisions of the Martin act were applicable to such municipalities only in case the board having control of their finances adopted it and put it in force. In other words, it was elective whether or not proceedings for the collection of taxes in arrears he had under the provisions of the Martin act. The General Tax act of 1903 made the proceedings for assessment and collection of taxes uniform throughout the municipalities of the state. And, as already asserted, the latter’s companion repealing act did not repeal the Martin act. In this connection it is significant to note that the legislature since the passage of the General Tax act of 1903 has passed six supplements to the Martin act, as follows: March 39th, 1904 (P. L. 1904 p. 345; P. L. 1904 p. 381); June 2d, 1905 (P. L. 1005 p. 490; P. L. 1905 p. 497); May 17th, 1906 (P. L. 1906 p. 551); March 10th, 1908 (P. L. 1908 p. 24).

The Martin act concerns not alone the settlement and collection of arrearages of unpaid taxes, but also assessments and water rates or water rents, and imposes and levies a tax, assessment and lien in lieu and instead of such arrearages and enforces the payment thereof. Mow, to hold that the Martin act was repealed, or, rather, that its tax- collecting features were repealed by the General Tax act of 1903, which latter act provides only for the levying and collection of taxes, would be 'by construction and implication to override the salutary provisions of the Martin act which permit taxes, with assessments and water rates, to be collected together and at the same time. Such a result can only be reached if the provisions of the General Tax act admit of no construction other than the logical repeal, by implication, of the provisions of the Martin act. The omission of any repealer of the Martin act by the legislature of 1903, cortpled with the fact that four legislatures since that year have passed supplements to that act, leads to the view that the legislature has at all times considered the Martin act in force and effect, notwithstanding the General Tax act. Then, too, the General Tax act does not legislate upon the whole subject of the Martin act, which is a reason for believing that the legislature did not intend by implication to repeal that act.

A late case on the subject of repeal by implication is that of Hotel Register Corporation v. Stafford, 70 N. J. Law (41 Vr.) 528, opinion by Mr. Justice Pitney, now chancellor. In that case it was held that a portion of the revised Attachment act, which authorizes the issuance of an attachment against the property of an absconding and non-resident debtor, is not impliedly repealed by section 84 of the revised Practice act, which permits an action to be commenced by attachment in certain cases, and it is said (at p. 536) :

“It may further be remarked that section 84 of the Practice act is not by its terms exclusive of the former practice by attachment. It permits but does not require. So far as cases covered by the Attachment act are concerned, it furnishes a concurrent remedy.” See, also, Board of Health v. Ihnken, 72 N. J. Eq. (2 Buch.) 865.

Now, if the contention of counsel for the complainant were to be adopted, it would destroy the concurrent remedy given to cities for the collection of taxes in arrears by the adoption of the Martin act in lieu of the proceedings under the General Tax act, and would deprive the cities of the advantage of adjusting arrears of taxes along with arrears of assessments and water rates at the same time. This consequence could no.t, I think, have been in the legislative mind, at the time of the passage of the General Tax act, and as this question of implied repealer is always one of legislative intent, when the intent to repeal is palpably lacking, repeal does not take place. Board of Health v. Ihnken, supra.

By the supplement to the Martin act, approved June 2d, 1905 (P. L. 1905 p. 497), it is provided that lands may be sold for taxes and assessments levied in any city, and which then were or should thereafter become unpaid and in arrears for the space of two years from and after the time when due and payable, in the discretion and upon the direction of the board having charge of the control of the finances of the city; and the complainant here admits that the sale in question in this cause was lawful, if the act just mentioned is constitutional; but asserts that the Martin act, being repealed by the General Tax act, that article 4, section 7, of the constitution, which inhibits the revival of acts by reference to their title, and provides that an act revived shall be inserted at length, operates to invalidate the act of June 2d, 1905, because it attempts to revive the Martin act without inserting its provisions at length. However, it is not necessary to examine this contention, because, as I view it, the Martin act was never repealed by the General Tax act, and, consequently, there is no attempt by the act of June 2d, 1905, to revive any defunct act.

These views lead to the conclusion that the sale in question was lawful, and that, therefore, the complainant’s bill should be dismissed.