text:
    IRENE E. KEELY, RELATOR, v. PENSION COMMISSION OF THE CITY OF HOBOKEN, RESPONDENT.
    Argued Orally September 6, 1947—
    Briefs Submitted September 19, 1947
    Decided October 20, 1947.
    Before Case, Chief Justice, sitting as a single justice pursuant to the statute.
    Bor the relator, Edward Stover.

    Bor the respondent, Dominich B. Binaldi.

   Case, Chief Justice.

John P. Keely, having served as a policeman on the force of the City of Hoboken, was retired January 31st, 1944, on pension for disability due to causes other than injuries received in the performance of duty. He was then unmarried. He married the relator, Irene E. Keely, on April 29th, 1944, and died May 31st, 1947, at the age of 49 years. Mrs. Keely has unsuccessfully applied to the Pension Commission of the City of Hoboken for a pension as the. widow of the retired policeman and now asks for a peremptory or alternative writ of mandamus to compel the Commission to allow her such .a pension. She rests upon the following excerpt from section 3, chapter 234, Pamph. L. 1947, an amendment to R. S. 43:16-3; N. J. S. A. 43:16-3:

“The widow of any member who died on or after July first, one thousand nine hundred and forty four, and who is not receiving at the time this amendment takes effect a pension equal to the amount provided by this amendment, shall, beginning with the effective date of this act, receive a pension in the amount provided by this amendment.”

It is argued that those words, torn from their paragraph and considered as an isolated provision, are applicable to relator; but clearly, to have sense at all, they must be read in the light of what has gone before. I believe them to be so closely related to the preceding provisions of the paragraph and of the section in which the paragraph is placed as not to be susceptible of the suggested meaning.

The first paragraph of the section applies to the widow of a member of the force who shall have been retired on a service retirement pension or who shall have continued in service after becoming eligible for such pension and shall not have lost his life while on duty or who shall have been retired on a service disability pension and shall have continued making contributions to the fund until his death and grants a pension to such widow if she married her husband before the date of his retirement and before he reached fifty years of age and not while he was suffering from the last illness which resulted in his death.

The second paragraph (of which the words in controversy are the closing sentence) relates to the widow of a member who shall not have retired but shall die before coming eligible for pension while still employed by the department and shall not have lost his life while on duty, and to the widow of a member who shall have been retired on a non-service disability pension and shall have continued his contributions until his death and grants a pension to such a one provided she married her deceased husband before the date of his retirement and before he reached fifty years of age and not while he was suffering from the last illness which resulted in his death. Then follow the words upon which relator relies.

The amendatory statute was approved June 2d, 3947, and. thereupon took effect; and by the usual rules of construction would look only to the future. The purpose of the final sentence in the paragraph was, in my opinion, not to abolish the reiterated requirements that a widow, to be eligible for pension, must have married the department member before his retirement, but simply to bring the benefit of a pension, or, if it so be, of an increase in an existing pension, to a widow, otherwise within the purview of the statute, whose pension status had become established on or after July 1st, 1944. To yield to relator’s argument would be, as I conceive, to upset the legislative scheme regarding pensions to the widows of firemen and policemen as contained in the theretofore existing statutes and as set forth in the presently considered amendment. The precise sentence is found in an earlier amendatory act, chapter 150, Pamph. L. 1945, where it is subject to the same construction.

The application will be denied, with costs.


source: Caselaw Access Project

author: Pboctok, C. C. J.

license: Public Domain

text:
    CARL H. B. SUMMERILL, PLAINTIFF, v. MARY E. HUNT, DEFENDANT.
    Decided November 25, 1947.

      For the plaintiff, Starr, Summerill & Lloyd.

    For the defendant, Wayland A. Lucas.

   Pboctok, C. C. J.

This action of ejectment was tried before a jury at the Salem Circuit and at the conclusion of the testimony there were cross motions for directed verdicts. At the court’s suggestion, both parties consented that the case be withdrawn from consideration of the jury and the case was submitted to the court on both the facts and the law. Hayes v. Kluge, 86 N. J. L. 657; 92 Atl. Rep. 358.

The evidence seems to be without dispute and the court finds the following to be the facts:

Garnett Summerill owned and was in possession of the premises in question, together with surrounding lands, at the time of his death on September 24th, 1896. Under his will the premises in question and the surrounding lands were devised to a number of individuals, among whom was the plaintiff Carl IT. B. Summerill, as a contingent remainder-man. It was stipulated by the parties that the plaintiff is the ultimate devisee of the premises in question under the aforesaid will.

On September 4th, 1915, the Salem and Penns Grove Traction Company was incorporated pursuant to chapter 172, Pamph. L. 1893; N. J. S. A. 48:15—6, et seq., for the purpose of operating a street railway. Following its incorporation the traction company commenced condemnation proceedings, in accordance with the aforesaid act under which it was incorporated, against the premises in question, which resulted in a condemnation award dated April 24th, 1916, and recorded June 26th, 1916, in the clerk’s office of Salem County. It appears that everyone having any interest in the premises was made a party to the condemnation proceedings. The award of the commissioners, duly appointed by the Supreme Court, is stated as follows:

“We do award that the said company pay to William G. Summerill and John M. Summerill, Trustees under the Will of Garnett Summerill, deceased, the sum of Four thousand dollars ($4000.00) said sum includes an award for fencing as well as a full and complete award for the value of the land taken and the damages thereto, and to the remaining lands of said Trustee, and for all other damages, costs and expenses in these proceedings of said Trustees under the Will of Gar-nett Summerill, deceased.

“And we do further award that the said Company pay to James B. Summerill, Lessee and Oestui Que Trust, and to Charles H. L. Summerill, personally as Lessee and Oestui Que Trust, and as Guardian of Carll H. Summerill, a minor. Contingent Kemainderman, in full for all their damages of any nature whatever and their interest, whatever it may be in said lands as well as for all their costs and expenses of every kind in this proceeding, the sum of Four thousand dollars ($4000.00).

“Dated April 24th, 1916.”

The Salem and Penns Grove Traction Company operated the said street railway over the premises in question thereafter and until about the year 1930, when the said company removed its tracks and wooden ties therefrom. Apparently the' traction company had encountered financial difficulties. It was declared insolvent by a decree of the Court of Chancery on April 20th, 1933, and Charles J. Degnan was appointed its receiver. On May 10th, 1934, the receiver was authorized by the Court of Chancery to sell the premises to Earl B. Hunt for the sum of $700 and on June 11th, 1934, the aforesaid Charles J. Degnan, receiver of the. Salem and Penns Grove Traction Company, conveyed the premises in question by a bargain and sale deed to the aforesaid Earl B. Hunt. This deed, which was recorded in the clerk’s office of Salem County in Book 215 of Deeds, page 348, provided that the premises were conveyed by the receiver to the aforesaid Hunt;

“Together with all and singular the tenements, hereditaments and appurtenances thereunto belonging, or in anywise appertaining, and the reversion and reversions, remainder and remainders, rents, issues and profits thereof. And also, all the estate, right, title and interest, property, possession, claim and demand whatsoever, as well in law as in equity, which the said Corporation was seized and oí the said Party of the Eirst Part hereto, of, in and to the above described premises, and every part and parcel thereof, with the appurtenances.

“To have and to hold all and singular the above mentioned described premises, together with the appurtenances, unto the said Party of the Second Part his heirs, executors, administrators, and assigns forever. And the said Party of the Pirst Part, for himself, his successors and assigns, does covenant, promise and agree to and with the said Party of the Second Part, that he has not made, done or suffered any act, matter or thing whatsoever since his appointment as such Receiver as aforesaid, whereby the above granted premises, or any part thereof, are, shall or may be impeached, charged or encumbered in any manner whatsoever.”

At the time of the receiver’s conveyance of the premises to Earl 33. Hunt, there was a small electric transformer station upon the premises. Hunt converted the station into a lunchroom and also constructed a small gasoline station upon the premises. The defendant Mary 13. Hunt is the successor in title to Earl 33. Hunt by a devise contained in his will. At the present time the defendant leases the gasoline station and lunchroom to a third party.

The property has not been used for the purpose of a street railway since 1930 and the charter of the Salem and Penns Grove Traction Company was revoked by proclamation of the Governor January 8th, 1941. Pamph. L. 1941, pp. 1111 and 1175.

The primary question for determination relates to the quality of the estate in the lands in question which was acquired by the Salem and Penns Grove Traction Company pursuant to the condemnation proceedings. If the traction company acquired an estate in the lands in fee-simple absolute, the defendant is entitled to that estate as a successor in title. If, on the other hand, the traction company did not' acquire such an estate but only a qualified or conditional estate dependent upon a continuing use of the lands for the-purpose for which it was incorporated, and if such use has-been abandoned, then the defendant’s title will be no greater than that which the traction company obtained and there will be a reversion of title to the owner, or his successor in title,, the plaintiff, whose lands were taken by condemnation.

Chapter 172, Pamph. L. 1893; N. J. S. A. 48:15-6, et seq., under which the Salem and Penns Grove Traction Company was incorporated, was a general statute enacted primarily to make possible the change in motive power from horses to-other means of traction, especially electricity. That statute-contained a provision as to the procedure to be followed by traction companies in the exercise of the power of eminent domain granted to companies incorporated thereunder. The-General Eminent Domain Act of 1900, Pamph. L. 1900, ch.. 53; N. J. S. A. 20:1-1, et seq., provided for the procedure in condemnation and superseded the provisions of the 1893 act relative thereto. Paterson and State Line Traction Co. v. DeGray, 70 N. J. L. 59; 56 Atl. Rep. 250. In order to determine the quality of the estate in the premises in question acquired by the traction company, it is necessary to examine-both the 1893 act and the 1900 act.’ The language of the-1893 act does not specify in so many words the kind of an estate in land which may be acquired by condemnation. There-is nothing in the language which suggests that the traction company will be authorized to acquire an estate in lands in fee-simple absolute by the exercise of the power of eminent domain. Section 14 of the aforesaid act provides for the-appointment of commissioners to appraise the damage to the owners and the filing of said report in the county clerk’s office, after which it provides, “and thereupon and on payment or tender of payment of the respective amounts assessed and awarded as herein provided, the said company is hereby empowered to tahe possession of the lands and easements in said report mentioned required for any of the purposes aforesaid, and to have, hold, use, occupy, possess and enjoy the same for any or all of said purposes.” (Italics supplied.)

It is my opinion that the word “lands” mentioned above was intended by the legislature to mean only such right or estate in lands necessary for the use of a street railway company. Cf. New Jersey Zinc and Iron Co. v. Morris Canal and Banking Co., 44 N. J. Eq. 398; 15 Atl. Rep. 227; affirmed, 47 N. J. Eq. 598; 22 Atl. Rep. 1076. Moreover, section 21 of the act provides that upon the merger of two traction companies that all the rights, privileges and franchises of each of said companies and all property, &c., be deemed to be transferred to and vested in the new corporation without further act or deed, “and all property, all rights of way and all and every other interest shall be as effectually the property of the new corporation as they were of the former corporations, parties to said agreement; and the title to real estate, either by deed or otherwise, under the laws of this state vested in either of such corporations shall not he deemed do revert or be in any way impaired by reason of this act.” ■(Italics supplied.)

It will be noted that the legislature provided against a reverter in case of merger. Had the legislature intended that a fee-simple absolute should be acquired on condemnation, the language relating to reverter upon merger would have been idle words.

The legislature in 1908 supplemented the 1893 act by providing a method of re-location of lines. Pamph. L. 1908, ch. 136; N. J. S. A. 48:15-16, 48:15-27. Section 3 of said act, N. J. S. A. 48:15—27, provides as follows:

“In ease such company has acquired by condemnation any land or easement therein along the original route so changed as aforesaid, so much of said land so acquired as aforesaid •as is not within the amended route shall upon the construction of such railway along said amended route revert to the original owners thereof.” (Italics supplied.)

The above act further illuminates the intendment by the legislature that the condemnor would not acquire a fee-simple absolute. For if the traction company had acquired a fee-simple absolute in the premises in question, the legislature would have been without power to provide for a reversion to the original owner had the traction company relocated its lines.

The General Eminent Domain Act, Pamph. L. 1900, ch. 53; N. J. S. A. 20 :1—1, et seq., which was in force at the time of the condemnation proceedings provides that any corporation “having power to take land or other property for public use, shall have determined to acquire land or other property pursuant to authority conferred by law and cannot acquire such land or other property by agreement with the owner, whether by reason of disagreement as to price, or the legal incapacity or absence of the owner, or his inability to convey valid title, or the lack of authority of the party determining to acquire the property to do so by agreement, or by reason of any other cause, the compensation shall be ascertained and paid in the manner directed by this act.” Pamph. L. 1900, p. 79; N. J. S. A. 20 :1-1.

After providing for the method of obtaining the appointment of commissioners and for the hearing by the commissioners and for the incidental procedure, the statute then provides that “Upon the filing of the report of the commissioners, and upon payment or tender of payment of the amount awarded, as hereinafter provided, the petitioner is hereby empowered to enter upon and take possession of said land or other property for the purposes for which the same was authorized to be taken * *

These provisions of the act plainly disclose that the land taken by condemnation shall be for the authorized purpose (establishment of street railways) and not otherwise.

It is my opinion that the before mentioned statutes, fairly construed, did not authorize the taking of a fee-simple absolute by the traction company in its condemnation proceedings, but that they permitted the taking only of a qualified fee.

Had the legislature provided especially for the acquisition of a title in fee-simple absolute by condemnation, the question would at once arise as to the constitutionality of the act. It appears to be the settled law that a fee-simple absolute cannot be acquired by condemnation.

Mr. Justice Lloyd, speaking for the Supreme Court in the ease of Frelinghuysen v. State Highway Commission, 107 N. J. L. 218; 152 Atl. Rep. 79, said:

“The present constitution provides in article 1, section 16 that ‘private property shall not be taken for public uses without just compensation.’ This is a recognition of a legislative power to take private property for a public nse, but is far from giving authority to take such property for other than public uses. When the state takes the property of its citizens for highway purposes, it acquires an easement only, and it would seem that it is empowered to take only so much of the title as is essential to the public use authorized. New Jersey Zinc and Iron Co. v. Morris Canal and Banking Co. 44 N. J. Eq. 398, 404; 15 Atl. Rep. 227. To take all the right, title and interest of an owner obviously may be beyond such necessity and be a contradiction in terms of the right to acquire an easement only. Public uses are constantly changing and particularly with regard to the lands occupied by our highways; the courses and directions of the highways arc frequently altered and upon the abandonment of such lands for such use, unless the state holds a greater title by the voluntary act of the owner, the easement ceases and the state has no further interest.

“To sustain the contention of the commission in this case would open the door to wide and dangerous invasions of private property. A power thus conferred would permit the acquisition of private property for a public use with its ultimate destination intended to be devoted to a private use, and foreign to the cause for which it was condemned.

"Our view is that this power does not exist * *

(Italics supplied.)

The Court of Errors and Appeals in affirming the Supreme Court adopted the opinion of Mr. Justice Lloyd. 108 N. J. L. 403; 158 Atl. Rep. 465. Frelinghuysen v. State Highway Commission, supra, has been followed and the principles therein enunciated have been reaffirmed in the later cases of Camden Forge Co. v. Camden County Park Commission, 14 N. J. Mis. R. 626; 186 Atl. Rep. 519; Holcomb v. Western Union Telegraph Co., 109 N. J. L. 551; 162 Atl. Rep. 760, and Wolf v. State Highway Commission, 110 N. J. L. 237: 164 Atl. Rep. 470. Assuredly, if the State of New Jersey, or a political subdivision thereof, has not the power under the present constitution to acquire a fee-simple absolute by condemnation, a private corporation does not have that power. The cases of Bentley v. Newark, 108 N. J. L. 317; 158 Atl. Rep. 463, and Carrol v. Newark, 108 N. J. L. 323; 158 Atl. Rep. 458, relied upon by the defendant and.both of which cases were decided the same day the Erelinghuysen case was-affirmed by the Court of Errors and Appeals, do not hold a contrary view. In the Bentley case and the Carrol case the-court found that the public use had not ceased to exist. Chief' Justice Case (then Mr. Justice Case), who wrote the opinions in both cases, said at the conclusion of each opinion that as-the City of Newark was still devoting the lands to a public-use, it was not necessary to determine whether the title held by the city by condemnation was a fee-simple absolute or a fee-simple determinable.

The case of Currie v. New York Transit Co., and National Docks Railway Co., 66 N. J. Eq. 313; 58 Atl. Rep. 308, is-also relied upon by the defendant. That case does lend support to the right of the legislature to authorize the condemnation of lands in fee-simple absolute. However, even with such legislative authority, the court clearly indicates that its-decision was based on the actual continuance of th° usé for which the property was acquired. The decision was to theeffeet that an additional and unauthorized use would not be-enjoined, and the estate of the condemnor would not be divested, so long as the condemnor “continues to devote the land to the uses which its charter prescribes,” and “so long' at least as its corporate life continues to exist.”

There is. therefore, no conflict between the decision in the Currie ease and the holding in the Erelinghuysen • case. In the present case there has been a cessation of the use for-which the premises were condemned. The Currie case is not in point.

The general rule where property is condemned for a public use and then abandoned is well stated in the annotation in 136 A. L. R., p. 320, as follows :

“Although there is some disagreement in the cases involving the effefct of the abandonment of land condemned for railway purposes upon the title to such land, with respect to-the precise nature of the interest received by the railroad-•company under tlie condemnation proceedings (this question being principally controlled by the provisions of the statute under which the eminent domain proceeding was had), there seems to be general agreement among the decisions that, assuming that the interest received by the railroad was less than a fee simple absolute, the title to the land condemned reverts to the original owner, or his heirs or assigns, upon abandonment thereof for railroad uses.”

While no Hew Jersey cases are cited in the annotation, the •court decisions in this state would seem to indicate that there is a reversion upon abandonment of the use for which the property was condemned. In Slingerland v. Newark, 54 N. J. L. 62; 23 Atl. Rep. 129, the city brought proceedings to condemn land of the prosecutor for a water supply. The prosecutor raised the objection that the city never intended to use the land for that purpose. The court in its opinion said:

“But the same uncertainty attends almost every condemnation; after the taking something may occur to prevent the •actual user. The common effect of such an occurrence is that the land reverts to the prior owner. Such would be the consequence here. The water company acquires no title whatever, and the city acquires title for the specified use only, on failure of which the rights of the former owner would come into play. It can afford the prosecutor no ground of complaint that his rights may so soon revive.”

Paterson v. Kearney, 84 N. J. L. 456; 87 Atl. Rep. 103; affirmed, 87 N. J. L. 327; 93 Atl. Rep. 1086, was a condemnation proceeding by a town to acquire a water supply. The prosecutors raised the objection that the proceedings were not within statutory authority since the real object was to authorize the diversion of water by a private water company. As to this the court in its opinion said:

“* * * If that is not the real object, or if the water is diverted to some other use not authorized, the right acquired will be at an end, just as land reverts to the prior owner when the use for which it is condemned is abandoned.”

The purchaser from the receiver and his successor in title, the defendant, have used the premises for the purposes of a restaurant and gas station and there is no evidence of any intent to attempt to devote the property to street railway purposes. The actual abandonment of the use of the land in question by the traction company for street railway purposes is evidenced by the actual removal of the tracks, ties and rails, &c., from the land, followed by a receivership proceeding, the sale of the land by the receiver, dissolution of the traction company by proclamation for non-payment of taxes, and an alien use of the land.

The defendant contends that there was no intentional abandonment and cites McConihay v. Wright, 121 U. S. 201; 7 S. Ct. 940. That ease was covered by a state statute which provided that no forfeiture of title on the ground of abandonment could be enforced except by the state. The case is not in point.

It is clear that the use for which the premises were acquired by condemnation has been abandoned. The right of re-entry for a condition broken has arisen and exists in favor of the plaintiff, and is properly asserted by a suit in ejectment. Cornelius v. Ivins, 26 N. J. L. 376.; Carpender v. City of New Brunswick, 135 N. J. Eq. 397; 39 Atl. Rep. (2d) 40.

The plaintiffs right of possession of the premises in question is clear and judgment is rendered accordingly in favor of the plaintiff and against the defendant.


author: McAlevy, Recorder.

text:
    Recorder's Court of the City of Hoboken.
    THE MAYOR AND COUNCIL OF THE CITY OF HOBOKEN, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, v. MARIE BAUER, JOHN MULLER, ANTHONY SANTENELLO, AND WALTER KAUGER, DEFENDANTS.
    Argued October 1, 1947
    Decided October 16, 1947.

      For the complainant City of Hoboken, Albert J. Shea.

    For the defendants, Anthony P. LaPoria.

   McAlevy, Recorder.

These cases come before this court on the complaint of Arthur Marotta, a lieutenant of police of this city, for the alleged violation of the provisions of an ordinance -which was regularly adopted by the Board of Commissioners of the Mayor and Council of the City of Hoboken on July 23d, 1940. The ordinance provides for the license, regulation and control of the use of merchandise vending appliances, musical instruments, appliances for entertainment, exercise of skill, and the like in hotels, taverns and other places of business.

Although there are only four cases submitted for prosecution at this time, there are some eighty-odd similar complaints against various other individuals pending in court. All these cases concern either the ownership or possession of bubble gum, peanut, weighing and cigarette machines together with an assortment of mechanical music players commonly refered to as "juke boxes” without the owners or possessors thereof having first obtained a license therefor in accordance with the provisions of said ordinance.

Counsel for the defendants has filed demurrers to these eomplaints, and in doing so states many reasons why the demurrers should be sustained, among them: (1) the ordinance is null and void because it fails to set forth a "norm” or standard, as the Board of Commissioners under the ordinance have unrestricted discretion or control over the issuance or non-issuance of said licenses and that it is therefore arbitrary, oppressive, illegal and unconstitutional and interferes with the business and lawful pursuit of the defendants in the operation, of business. (2) Said ordinance unduly interferes with defendants’ liberty to contract in violation of the Fourteenth Amendment of the Constitution of the United States; it is discriminatory and deprives the defendants of their liberty and property without due process of law.

It is contended, by counsel for the city that an inferior court such as this lacks jurisdiction to pass upon the constitutionality ot unconstitutionality of an ordinance or statute unless it appears so “on its face” but he does contend that this court does have jurisdiction to declare the ordinance void" if it is in violation of the Home Eule Act now known as section 40:49-5 of the Revised Statutes of New Jersey, N. J. S. A. 40:49-5.

In Black’s Constitutional Law (3d ed.) (at p. 61), the learned author says;

“Thus a county court of a state may adjudge an act of the state legislature to be void for repugnance to the federal constitution; for the judge of that court is bound by his oath to support that constitution as the supreme law of the land.”

At p. 60, the same author says:

“All courts have the right to judge the constitutionality of1 a statute.”

The Eecorder’s Court is not a county court. It is municipal court and the subject-matter now pending before it concerns a municipal ordinance as distinguished from a state statute. As recorder, I took an oath to uphold the Constitution of the United States and the Constitution of the State of New Jersey. I, therefore, find that pursuant to that oath the Eecorder’s Court of the City of Hoboken has the authority to inquire into the constitutionality of the particular ordinance under consideration.

It is my ruling that the ordinance in question is void. It fails to set forth a “norm” or standard by which the City Commission should govern itself in the granting or rejection of applications for licenses. It is said by our Court of Errors and Appeals in Lipkin v. Duffy, 119 N. J. L. 366; 196 Atl. Rep. 434, in dealing with a conviction for violation of a city ordinance in operating a junk yard without a license:

“The ordinance in question is also unreasonable and invalid because of a reservation of discretionary power in the governing body to decline and revoke licenses for sufficient cause appearing to such body, without specifying uniform rules and regulations to apply to all applicants.”

And in the case of Phillips v. The Borough of East Paterson, 134 N. J. L. 161; 46 Atl. Rep. (2d) 667, the Supreme Court said:

“* * * n beeil settled in this state that an ordinance is invalid where it vests broad discretion in the mayor and council in granting or not granting a permit. See Lipkin v. Duffy, 119 N. J. L. 366; 196 Atl. Rep. 434; South Orange v. Heller, 92 N. J. Eq. 505; 113 Atl. Rep. 697.”

In the case of Phillips v. The Town of Belleville, 135 N. J. L. 271; 52 Atl. Rep. (2d) 441, our Supreme Court said:

“An ordinance, however, which seeks to accomplish that result (to assume sole control of the erection of automobile service stations under its inherent police power) must lay down a sufficient norm or standard for the guidance of the municipal council upon which the granting or refusal of a requested permit may depend. * * *• Omission of such standard renders the ordinance fatally defective and an invalid exercise of the general police power. * * * There is no such standard included in the ordinance .concerned. As enacted, the Board of Commissioners may at will authorize or deny a request for the erection of gasoline stations. Such arbitrary exercise of the police power cannot be upheld.”

In the case of Keavey v. Randall, 1 N. J. Mis. R. 311; 122 Atl. Rep. 379, our Supreme Court said:

“An ordinance which leaves it within the control of a municipal board to grant some permits and refuse others is invalid.”

In dealing with the ordinance now under consideration, the Board of Commissioners of the Mayor and Council of the City of Hoboken has reserved unto itself unrestricted and absolute power to give or not to give a license at will. The ordinance is arbitrary, unlawful and void in that it contains no requirements as to the character of the place, the terms and conditions under which a license could be issued and the .character of the applicants. There is no norm or standard set up by which an applicant would know whether or not he had met the requirements and was therefore entitled to a license. The businesses of the defendants are lawful enterprises and the Constitution of the United States guarantees to every individual the right to engage in any lawful pursuit. An ordinance such as the one under consideration which gives the Board of Commissioners unlimited jurisdiction and unrestricted control over the issuance of licenses without any legal requirements does in effect deny to these defendants the right of their liberty without due process of law under the Fourteenth Amendment of the Constitution of the United States.

The defendant Bauer possesses a confectioner’s retail business license issued by the city and now in force and effect and under that license is privileged to conduct what is commonly termed “a candy store business.” It is my opinion that selling chewing gum is an integral part of that business. This defendant is now charged with ownership without a license of an automatic vending bubble gum machine which is in operation in her already licensed place of business. The alleged violation in her ease is for a period of time between May 1st, 1947, and after September 1st, 1947—if she were to be adjudged guilty of said violation for that period of time, under the penalty provision of this ordinance she could be subjected to a fine in the approximate amount of $24,600, and failing to pay the fine she could be jailed for an approximate period of thirty years—all because she owned and possessed a penny bubble gum machine. Other defendants herein could meet a similar fate for maintaining penny weighing machines in their drug stores.

It is a certainty to me that this punishment would be in the nature of "an excessive fine and cruel and unusual punishment” in contravention of the Eighth Amendment of the United States Constitution and article 1, paragraph 15, of the Constitution of the State of New Jersey, N. J. S. A.

The demurrers are sustained and the defendants ordered immediately discharged from custody.


author: Waesohe, Commissioner.

text:
    Division of Tax Appeals.
    TOWNSHIP OF NORTH BERGEN, PETITIONER, v. HACKENSACK WATER COMPANY, RESPONDENT. For the years 1944, 1945, 1946. HACKENSACK WATER COMPANY, PETITIONER, v. TOWNSHIP OF NORTH BERGEN, RESPONDENT. For the year 1946.
    Decided November 25, 1947.

      For the Township of North Bergen, Nicholas 8. Schloeder.
    For the Hackensack Water Company, Milton, McNulty & Augelli (by Joseph Keane).

   Waesohe, Commissioner.

The assessments under review were levied for the years 1944, 1945, and 1946 on the personal property of the Hackensack Water Company located in the Township of North Bergen, consisting of cast iron water mains, service lines, hydrants, valves and meters. The appeals for the three years were tried together by agreement between the township and the water company.

The township assessor assessed the personal property of the water company for the year 1944 at $1,400,000. Upon review of the assessor’s tax list and duplicate, the Hudson County Board of Taxation reduced the assessor’s value of the water company’s personal property located in the township to $940,000. The township appealed from this assessment to the County Tax Board, which appeal the County Board dismissed for lack of jurisdiction. This action of the County Board is reviewable by the Division of Tax Appeals, Oradell v. State Board of Tax Appeals, 125 N. J. L. 37; 13 Atl. Rep. (2d) 479, and the appeal to this body is a hearing de novo. City of Paterson v. Baker et al., 6 N. J. Mis. R. 4; 139 Atl. Rep. 604.

The reason given for the County Board’s dismissal of the 1944 appeal for lack of jurisdiction is that the township’s petition of appeal alleged that it felt discriminated against because1 the assessment of $940,000 was below the true value of the property. Assuming, as we must, that all the taxable property in the Township of Worth Bergen was assessed at true value, then, if the property of the water company was assessed below its true value, there would be a discrimination against all the other property in the taxing district in favor of the water company. Hence, the allegation in the petition of appeal that the township was discriminated against because the property of the Hackensack Water Company was assessed below true value raised a valid question .for appeal, and the County Board was, therefore, in error in dismissing the township’s appeal.

The township did not appeal the 1945 assessment to the Hudson County Board of Taxation. Instead it appealed directly to the Division of Tax Appeals in the State Department of Taxation and Finance. The appeal was filed Decern-ber 15th, 1945. The petition of appeal alleges that the assessor of the Township of Worth Bergen valued the personal property of the Hackensack Water Company at $1,400,000, and that the Hudson County Board of Taxation revised the assessment by reducing it to $940,000, which the township claims is less than the true value of the property.

A municipality has only such authority as is granted to it by the legislature, New Jersey Good Humor, Inc., v. Bradley Beach, 124 N. J. L. 162; 11 Atl. Rep. (2d) 113, and it must follow the procedure laid down by the legislature in the exercise of any such authority, State v. Perth Amboy, 29 N. J. L. 259. The Division of Tax Appeals is a special statutory tribunal, and is, therefore, strictly limited within the bounds of the jurisdiction prescribed by the legislature, Hoboken v. Kelly; 21 N. J. Mis. R. 193; 32 Atl. Rep. (2d) 710. The right of appeal to this body is purely statutory, and- it is essential to-our jurisdiction to hear an appeal that the appellant comply with all applicable statutory requirements, Hoboken v. Kelly, supra.

The statute requires an assessor to file with the County Board of Taxation Ms complete assessment list or duplicate on or before January 10th (N. J. S. A. 54:4-35; Pamph. L. 1943, ch. 120, § 4). The County Board of Taxation is required by law to examine, revise, and correct the assessor’s tax list and duplicate. R. S. 54:4-46, 47; N. J. S. A. 54:4—46, 47. The County Board of Taxation is required to certify to the tax collector the “corrected, revised, and completed” duplicate on or before April 1st. R. S. 54:4-55; N. J. S. A. 54:4—55. The assessments levied on the property in the assessor’s duplicate are not complete until the County Board of Taxation certifies the assessor’s duplicate to the tax collector. Middletown v. Ivins, 102 N. J. L. 36; 130 Atl. Rep. 648.

The statute permits a taxing district “which may feel discriminated against by the assessed valuation of property” to appeal “to the county board of taxation by filing with it a petition of appeal” on or before August 15th (N. J. S. A. 54:3-21; Pamph. L. 1945, ch. 125). But, of course, a taxing district could not “feel discriminated against by the assessed valuation of property” until after the assessment was corrected, revised and completed, because until then, the amount of the assessment is not known. So, therefore, the statute requires the County Board of Taxation to certify to the tax collector the completed duplicate on or before April 1st, in order that an appellant will have ample time to prepare and file a petition of appeal with the County Board of Taxation before August 15th, when the time for filing appeals expires.

This is the only section of the law, N. J. S. A. 54:3-21, which gives to taxing districts the right to appeal from a local valuation assessment, and which prescribes the procedure such an appeal must follow. The statute provides that an appellant who is dissatisfied with the judgment of the County Board of Taxation upon his appeal may appeal from that judgment to the Division of Tax Appeals (N. J. S. A. 54:2-39). Hence, there is no appeal to the Division of Tax Appeals unless the appellant before the County Board of Taxation is dissatisfied with the judgment of that board, ergo, there must be a judgment of the County Board. The statute contemplates a settlement of most of the tax problems by tbe County Boards. The law does not expect that all questions relating to valuation assessments will be settled by the Division of Tax Appeals—only those which cannot be settled by the County Boards.

Counsel for the Township of North Bergen contends that section 54:2—35 of the Revised Statutes, N. J. S. A. 54:2-35, gives to a taxing district the right to appeal a local valuation assessment directly to the Division of Tax Appeals. Section 54:2-35 is a general provision covering appeals from County Boards of Taxation to this Division, while sections 54:3-21 and 54:2-39 specifically deal with the right of appeal of a taxing district in a minute and definite way and, moreover, they are later in point of time. “The rule is that where there is any conflict between a general and specific statute covering a subject in a more minute and definite way the latter will prevail over the former and will be considered an exception to the general statute.” Ackley v. Norcross, 122 N. J. L. 569; 6 Atl. Rep. (2d) 721; affirmed, 124 N. J. L. 133; 11 Atl. Rep. (2d) 106. Consequently, we do not think that the 1945 appeal of the township has legislative sanction.

We have examined the testimony and the tax history submitted to us on the hearing of these appeals. As to the value of the property, the township put in evidence the expert opinions of two civil engineers who had had considerable experience in designing, constructing, installing, and maintaining pipe lines and other structures of a water system, and also in appraising the value of water company properties. They valued the property of the Hackensack Water Company located in the Township of North Bergen at $1,415,000 as of October 1st, 1943, and $1,440,000 as of October 1st, 1945.

The. Hackensack Water Company offered the testimony of its vice-president, Mr. Emil J. Ericker, who had been with the company 39 years, and who was well qualified to express an opinion as to the value of its properties. Mr. Ericker valued the property under appeal as of October 1st, 1943, and also as of October 1st, 1945, at $920,000.

He based his valuation of $920,000 on an estimate of $978,836.45 as the cost of reproduction new on the assessing date less physical depreciation. According to Mr. Ericker, the water mains are located about three and one-half to four feet below the surface of the street—the township maintains that the average depth is somewhat greater, about five feet. He estimated that it would cost $319,082.40 for the removal of rock for laying the water mains, and he added 15% or $47,862.36, to this cost for overhead. (The township maintained that it would cost $499,159.50 for rock excavation.) Mr. Frieker deducted for depreciation from the cost of rock removal $143,906.15, and from the overhead cost for rock removal he deducted $21,585.92, or a total deduction for depreciation for rock removal of $165,492.07.

We think Mr. Frieker erred in deducting for depreciation these amounts for rock excavation. The cost for the removal of rock over and above the cost for the removal of dirt is a non-depreciable item. The water company will never need to duplicate this expense. In other words, since there will be no work of reproduction as regards rock excavation, the cost thereof will never occur again in any reproduction new of the present pipe line.

After a consideration of all the evidence, we have reached the following conclusions:

1. The motion of counsel for the Hackensack Water Company to dismiss the 1944 appeal of the Township of Forth Bergen will be denied, and a judgment will be entered fixing the 1944 valuation assessment of the personal property of the Hackensack Water Company located in the Township of Forth Bergen at $1,225,000;

2. The motion of counsel for the Hackensack Water Company to dismiss the 1945 appeal of the Township of Forth Bergen will be granted;

3. The appeal of the Hackensack Water Company and the appeal of the Township of Forth Bergen from the 1946 assessment on the personal property of the Hackensack Water Company located in the Township of Forth Bergen will be dismissed and the action of the Hudson County Board of Taxation in fixing the assessed value of said property at $1,250,000 will be affirmed.


author: Sidberman, D. C. J.

text:
    Second District Court of Paterson.
    LIBERTY MUTUAL INSURANCE CO. v. MAHIEU CONSTRUCTION CO.
    Decided December 3, 1947.
    For Liberty Mutual Insurance Co., J ohn W. Taylor.

    For Mahieu Construction Co., Cox & Walburg,

   Sidberman, D. C. J.

It appears that in the stipulated facts one, James C. Kearney, was employed by the Croft Steel-windows, Inc., engaged in work at the Paterson Savings Institution, Market Street, Paterson, New Jersey. He was injured and received compensation from the Compensation Court in the State of New York. As a result of the compensation claim, the plaintiff herein in compliance with the provisions of the New York court expended the sum of $66.85 for hospitalization, &e.

It appears further that in the compensation laws of the State of New York section 29, subdivision 1, there is a provision wherein the employee may bring action within six months after the award of compensation and before one year against the third party who might be involved or responsible fox tlie injury. The act provides further than in such case the payor of compensation shall have a lien on the proceeds of any recovery from such other, whether by judgment, settlement or otherwise, after the deduction of reasonable and necessary expenses. Notice of the commencement of such action shall be given within thirty days thereafter to the Commissioner, to the employer and to the insurance carrier, upon a form prescribed by the Commission.

The notices, &e., were all served in compliance with the rules and regulations and requirements as is provided in the New - York statute, and that subsequently the litigation by Jamos 0. Kearney against the defendant herein in the United States District Court, District of New Jersey, was settled and Kearney received from the Mahieu Construction Co. or its insurance carrier the sum of $250 in full settlement. This payment was made by the New York Casualty Co., the insurance carrier for the defendant herein in Newark, New Jersey, and no provision, arrangement or deduction was made for the lien placed upon the litigation by the plaintiff herein.

The question resolves itself into one as to whether or not the courts of the State of New Jersey recognize and follow the regulations of the State of New York, and whether or not the New York legislature can impose its regulations upon persons or corporations in the State of New Jersey. There is no question in the court’s mind that where the laws of a foreign state do not conflict with the laws of our state nor the public policy of this state, it is the duty of our courts to recognize and enforce the laws of said sister state. In circumstances similar to the case at bar the Revised Statutes 34:15-40, N. J. S. A. 34:15-40, provides for a somewhat similar protection to situations analogous or identical hereto and the only difference being that instead of actually imposing a lien upon the funds, the State of New Jersey gives the right to sue. In other words, the purpose in both states is to protect the rights of both the injured workman and the insurance carrier; the procedure is minutely different in the respective states. Where the doctrine of state comity is involved the rule is that where the laws of a foreign state do not conflict with the public policy of this state, it is the duty of our courts to recognize and enforce the laws of said sister state. See Zurich Accident, &c., v. Ackerman Bros., Inc., 124 N. J. L. 191; 11 Atl. Rep. (2d) 52; Giardini v. McAdoo, 93 N. J. L. 138; 107 Atl. Rep. 437. Because New York State goes somewhat further and imposes a lien upon the proceeds while the State of New Jersey permits a suit to-be instituted for the recovery of the money is no reason to determine that the intent is not the same for the protection of the employer, employee and the insurance carrier.

Under the circumstances, the defendant herein is responsible for failure to conform with the notice received under the laws of the State of New York which are analogous to our workmen’s compensation laws. Judgment will be rendered in favor of the plaintiff and against the defendant in the sum of $66,85.


author: Pulop, D. C. J.

text:
    Second Judicial District Court of Union County.
    WALTER BEINECKE, Jr., PLAINTIFF, v. JOSEPH TERRANOVA, DEFENDANT.
    Decided December 3, 1947.
    For the plaintiff, George 8. & Robert A. Sauer.

    For the defendant, Lester Sandies.

   Pulop, D. C. J.

This is a suit for the eviction of a tenant of premises at 56 State Highway 29 in the Township of Hillside.

The parties stipulated that: (a) the landlord obtained a certificate from the O.P.A. prior to July 1st, 1947, permitting the eviction of the .tenant for the purpose of converting the property to commercial use: (b) the landlord desires to have possession of the premises in order that he may convert the land for use for an automobile sales and service station.

The landlord says that, if economically feasible, he will move the building and continue its use for dwelling purposes, but does not bind himself to do so. Consequently, that possibility cannot be taken into account in determining the case.

The landlord contends that the O.P.A. certificate became a vested right preserved to him under section 1(b) of the Price Control Act of 1946, 50 U. S. C. A. Appendix, § 901(b), which reads as follows:

“(b) The provisions of this Act, and all regulations, orders, price schedules, and requirements thereunder, shall terminate on June 30, 1947, or upon the date of a proclamation by the President, or upon the date specified in a concurrent resolution by the two Houses of the Congress, declaring that the further continuance of the authority granted by this Act is not necessary in the interest of the national defense and security, whichever date is earliest; except that as to offenses committed; or rights or liabilities incurred, prior to such termination date, the provisions of this Act and such regulations, orders, price schedules, and requirements shall be treated as still remaining in force for the purpose of sustaining any proper suit, action, or prosecution with respect to any such right, liability or offense.”

It must be noted that the Price Control Act of 1946 did not merely expire. It was replaced by the Housing and Rent Act of 1947, 50 U. S. C. A. Appendix, §§ 1881, et seq. Section 209A of that act provides: “no action or proceeding to recover possession * * * shall be maintainable by any landlord against any tenant in any court * * * unless * * * ” and then sets forth specifically the conditions under which a tenant may be evicted. One of these conditions is section 209A (a)(4), which reads as follows:

“(4) The landlord seeks in good faith to recover possession of such housing accommodations for the immediate purpose of substantially altering, remodeling, or demolishing them and replacing them with new construction, and the altering or remodeling is reasonably necessary to protect and conserve the housing accommodations and cannot practically be done with the tenant in occupancy, and the landlord has obtained such approval as may be required by Federal, State, or local law for the alterations, remodeling, or any construction planned.”

None of the other provisions allowing eviction are gpplieable to this case and it is upon this provision that the landlord relies.

A reading of the language of section 209 (a) (4), shows that eviction is permitted for the purpose of “protecting and conserving the housing accommodations” and not for any other purpose. Congress, in its wisdom, has seen fit to prohibit the removal of tenants for the purpose of converting housing accommodations to commercial use.

It is first suggested that the prohibition in question is so utterly foolish and foreign to the purpose of the Housing and Bent Act of 1947 that the act should not be read as written, but should be construed to mean what it does not say. The court has no power to construe the act contrary to the words used. Nor can it properly be said that the result is so absurd that Congress cannot have intended to mean it. Within the limits of the power of Congress, it is not for the court to say whether or not the provision is wise. That question is solely for the legislative body.

The landlord suggests that this construction results in a deprivation of a vested right of the landlord to evict the tenant. That may well be the ease. The mere fact that legislative action abolishes vested rights does not necessarily render the action unconstitutional.

Prior to the establishment of rent control, every landlord had the vested right to remove any tenant at the expiration of his term, to rent his property to whomsoever he pleased and at whatever rent he pleased. These rights were taken away for the time being and that action has been authoritatively held constitutional. It is a subject of judicial notice that the emergency which created the occasion for the exercise of constitutional power is still with us, for the housing situation is still serious.

With respect to the constitutional question, the United States Supreme Court held in Fleming v. Rhodes, 331 U. S. 100; 67 S. Ct. 1140:

“Federal regulation of future action based upon rights previously acquired by the person regulated is not prohibited by the constitution. So long as the constitution authorizes the subsequently enacted legislation, the fact that its provisions limit or interfere with previously acquired rights does not condemn it. Immunity from federal regulation is not gained through forehanded contracts. Were it otherwise the paramount powers of Congress could be nullified by ‘prophetic discernment.'’ The rights acquired by judgments have no different standing. The protection of housing accommodations in defense-areas through the price control acts may be accomplished by the appellant notwithstanding these prior judgments.”

The suit will be dismissed.


author: Conklin, Commissioner.

text:
    Division of Tax Appeals.
    IN THE MATTER OF THE APPEALS FROM THE ASSESSMENT AND RE-ASSESSMENT OF THE FRANCHISE TAX LEVIED AGAINST THE DELAWARE, LACKAWANNA AND WESTERN RAILROAD SYSTEM, IN THE STATE OF NEW JERSEY, FOR THE YEARS 1942, 1943, 1944, 1945 AND 1946.
    Decided November 25, 1947.
    For Delaware, Lackawanna and Western Railroad System, Carpenter, Gilmour & Dwyer (James D. Carpenter and Elmer J. Bennett, of counsel).
    For the State of ISTew Jersey, Walter D. Van Riper, Attorney-General, Benjamin G. Van Tine and Benjamin M. Taub.

   Conklin, Commissioner.

The complaints filed by the Delaware, Lackawanna and Western Railroad System, hereinafter referred to as the Railroad, involve the assessment of the Railroad for franchise excise taxes by the Director of Taxation tinder authority of Pamph. L. 1941, ch. 291, as amended by Pamph. L. 1942, ch. 169; R. S. 54:29a—13, et seq.; N. J. S. A. 54:29A—13, et seq., for the years of 1942, 1943, 1944, 1945 and 1946. The railroad has paid all of the taxes as assessed and re-assessed.

The appeals for the years 1942, 1943, 1944 and 1945 arise from the fact that the Director made adjustments in the assessment of the franchise taxes that increased the assessment of this railroad for the year 1942 by $233,359; for the year 1943 by $273,498; decreased the assessment $76,126.02 for the year 1944; and increased the assessment for the year 1945 by $21,085.98. The authority for the Director’s actions is found under the provisions of R. S. 54:29A-25; N. J. S. A. 54:29A-25, which provides:

“a. Whenever the Commissioner shall determine that any tax or taxes assessed pursuant to this Act less than or in excess of the amount thereof lawfully assessable, he may correct such deficiency or error by re-assessing such tax, or any part thereof.”

This adjustment was occasioned by the decision of the Court of Errors and Appeals in the ease of Wilentz v. Hendrickson, 135 N. J. Eq. 244; 38 Atl. Rep. (2d) 199, wherein the court declared that chapter 290 of the Public Laws of 1941 (R. S. App. A:4—7.1, et seq.; N. J. S. A. A:4-7.1, et seq.), an act relating to the collection of delinquent taxes upon railroad companies and purporting to abate interest and penalties, was unconstitutional. The collection of the remitted interest on delinquent taxes of necessity caused an adjustment of the franchise excise taxes.

The railroad, for the years 1942 and 1943, in its method of bookkeeping, with the approval of the State Tax Commissioner, treated as current railroad tax accruals the past due defaulted taxes covering the years during which the Delaware, .Lackawanna and Western Railroad and certain other railroads resisted payment of property taxes, in determining the franchise excise tax. In the year 1944 and the year 1945, the State Tax Commissioner disallowed everything except the current taxes as deductions in arriving at his figure of the net railway operating income. The cases for the years 1944 and 1945 were appealed to this Division and we held that the State Tax Commissioner acted properly in disallowing everything except current taxes. See In the matter of the appeals of the Delaware, Lackawanna and Western Railroad et al., 24 N. J. Mis. R. 205; 47 Atl. Rep. (2d) 830.

The 1946 ease is entirely a new matter. The proofs offered indicate that the railroad’s method of accrual of delinquent taxes for the various years was in accord with the rulings of the Interstate Commerce Commission, and further that the comptroller of the railroad had the specific approval of that body in the method of bookkeeping followed by the railroad.

It is contended by the railroad that the action of the Director in increasing the system net operating income and then levying the tax on the amount as thus increased is not authorized by the New Jersey statute; that it places an unconstitutional burden on interstate commerce; and that the adjustment made is invalid because it conflicts with the power delegated to and exercised by the Interstate Commerce Commission. '

As stated by this Division in its decision in In the matter of the appeals of the Delaware, Lackawanna and Western-Railroad et al., supra:

“The Court of Errors and Appeals has held that Tax accruals’ mean the current taxes for the particular year which have been assessed in conformity with the law; e. g., the amount certified by the tax assessor, and the state is not concerned with the bookkeeping practices of the railroad companies. The statute provides that in computing the next preceding year’s net railway operating revenue, there shall be deducted from the total operating revenue from all sources ‘railway tax accruals,’ among other items. The intent thereof is that the deduction for ‘tax accruals’ shall be the amount of the taxes for the year in which ‘the net operating railway income’ is computed.’’

' Mr. Justice Oliphant (now Chancellor) said for the Court of Errors and Appeals in the case of Norton v. State Board of Tax Appeals, 134 N. J. L. 57; 45 Atl. Rep. (2d) 799:

“It is to be noted that as to ‘tax accruals/ no reference is made in the statute to the Interstate Commerce Commission, while there is as to ‘depreciation.5 Whether or not taxes fixed, contingent or paid were reported to the Interstate Commerce Commission is immaterial. It matters not when or where the tax accrual items are reflected on the books of the railroad companies, what the Interstate Commerce Commission does with the items or what its rules provide with respect to railroad bookkeeping.55

And further:

“We again call attention to what was said above concerning Interstate Commerce Commission permission. Neither special permission from the Interstate Commerce Commission, nor new rules nor new interpretation of old rules by that body can be given consideration in determining whether an amount may be treated as a railway tax accrual under our statutes for New Jersey franchise tax purposes. Such must be our finding, otherwise, it might be held that the act is unconstitutional.55

It is contended by the railroad that the statements by the court in Norton v. State Board of Tax Appeals, supra, in regard to railway tax accruals and the Interstate Commerce Commission, are mere dictum. Whenever a question fairly arises in the course of a trial and there is a distinct decision of that question, the ruling of the court in respect thereto can in no just sense be called mere dictum. Union Pacific Railroad Co. v. Railroad Co., 199 U. S. 160; 26 Supr. Ct. 19; Florida C. R. Co. v. Schutte, 103 U. S. 118; New York Central and Hudson River Railroad Co. v. Price, 159 Fed. Rep. 330.

The opinion of the court in Norton v. State Board of Tax Appeals, supra, was not mere dictum. If anything, it was judicial dictum, and should be considered by this Division in arriving at its decision. A definition of judicial dictum and the weight to be given to it is set out in the opinion of Chancellor Walker in the case of Crescent Ring Co. v. Travelers Indemnity Co., 102 N. J. L. 85; 132 Atl. Rep. 106. He stated:

“There is a decided difference between the two kinds. Obiter dictum is an expression of opinion by the court or judge on a collateral question not directly involved, or mere argument or illustration originating with him; while judicial dictum is an expression of opinion on a question directly involved, argued by counsel and deliberately passed on by the court, although not necessary to a decision. While neither is binding as a decision, judicial dictum is entitled to much greater weight than the other and should not be lightly disregarded. In re Chadwick’s Will, 80 N. J. Eq. 168; 82 Atl. Rep. 918. The observation of the learned Chief Justice in Kennedy v. McKay (43 N. J. L. 288), was on a question present in the pleading and proofs in the ease, and, although not necessary to the decision of the cause, was, nevertheless, judicial dictum by a judge of the highest order of ability, and should, therefore, be given the weightiest effect.”

Thus, we conclude that the method used by the Director of Taxation in figuring the railway tax accruals, though not in accord with the regulation of the Interstate Commerce Commission, was in accord with the statutes of the State of New Jersey, and the decisions of our courts.

The regulation or supervision by the Interstate Commerce Commission is solely for the purpose of the work of the Interstate Commerce Commission, and is not binding on the Director of Taxation of the State of New Jersey, any more than it is on the Bureau of Internal Bevenue of the United States Government. It would be tenuous to argue that the legislature delegated its power to tax to the Interstate Commerce Commission.

The assessments as re-assessed by the Director of Taxation are found to be correct and the appeals of the Delaware, Lackawanna and Western Kailroad System for the years 1942, 1943, 1944,1945 and 1946 from the franchise excise tax levied against it are hereby dismissed.

Judgments accordingly.


author: Smith, Jos. L., C. C. J.

text:
    Essex County Circuit Court.
    GENERAL HOME IMPROVEMENT CO., A CORPORATION OF NEW JERSEY, AND JOSEPH EVANGELISTA, PLAINTIFFS, v. AMERICAN LADDER COMPANY, INC., A NEW JERSEY CORPORATION, AND NEWARK LADDER AND BRACKET SALES CO., INC., A NEW JERSEY CORPORATION, INDIVIDUALLY, SEVERALLY, JOINTLY AND IN THE ALTERNATIVE, DEFENDANTS.
    Decided December 8, 1947.

      For the plaintiffs, Braff & Litvalc.

    For the defendants, Autenrieth & WoHendylce.

   Smith, Jos. L., C. C. J.

This is a motion to strike the first twenty-one counts of the complaint on the ground that they are insufficient in law. In general the complaint sets forth that the corporate plaintiff purchased a ladder from either or both of the defendants and that the individual plaintiff, an employee of the corporate plaintiff, was injured as the result of a fall while using the ladder when one of its rungs broke.

The corporate plaintiff seeks to recover damages for breach of implied and express warranties under the first six counts. The damages claimed are the sums of money which the corporate plaintiff was and is obliged to pay by virtue of an award made by the Workmen’s Compensation Bureau in favor of the individual plaintiff as an employee.

R. S. 46:30-31, f (1) ; N. J. S. A. 46:30-21, ^ (1), provides : "Where the buyer, expressly or by implication, makes known to the seller the particular purpose for which the goods are required, and it appears that the buyer relies on the seller’s skill or judgment (whether he be the grower or manufacturer or not), there is an implied warranty that the goods shall be reasonably fit for such purpose.”

R. S. 46:30-31, If (6); N. J. S. A. 46:30-21, If (6), provides that an express warranty of condition does not negative a warranty or condition implied under this chapter unless inconsistent therewith.

Bor the purposes of this motion we will therefore treat the first six counts as one. The question raised by the motion to strike these six counts calls for a determination as to whether or not the seller of an article not inherently dangerous is liable for the damages incurred by the purchaser as the result of the injury sustained by the purchaser’s employee while using the article for the purpose for which it was intended. Counsel and the court have not found a case precisely in point within this state. The general rule of law is that the consequential damages sustained on account of the buyer’s responsibility for the injury to its employee are not too remote for recovery in an action upon warranty against the manufacturer and seller where the manufacturer and seller knew the use to which the buyer intended to put the purchased article. London Guarantee and Accident Co. v. Strait Scale Co., 322 Mo. 502; 15 S. W. Rep. (2d) 766; 64 A. L. R. 936; Mowbray v. Merryweather, 2 Q. B. (Eng.) 640-C.A; Boston Woven Hose and Rubber Co. v. Kendall, 178 Mass. 232; 59 N. E. Rep. 657.

The damages were within the contemplation of both the buyer and the manufacturer and must be considered the natural result of the breach of warranty. Dayton Power and Light Co. v. Westinghouse Electric and Manufacturing Co., (6th Cir.) 287 Fed. Rep. 439. In Cassini v. Curtis Candy Co., 113 N. J. L. 91 (at p. 97); 172 Atl. Rep. 519, 521, Mr. Justice Perskie said “there is a further basis of liability totally distinct from the theory of negligence. Liability for personal injuries may be predicated upon a breach of warranty, express or implied, quality and fitness for a particular purpose. So in the case of Griffin v. James Butler Grocery Co., supra [108 N. J. L. 92; 156 Atl. Rep. 636], suit was brought by the injured plaintiff against the vendor and retailer direct, who sold her a can of peaches which caused physical injury. The court sustained a recovery upon an implied warranty, relying upon section 15 of the Sales of Goods Act. 4 Comp. Stat., p. 4650, § 15 [N. J. S. A. 46 :30-21].

“In the last mentioned type of case, however, the warranty inures only for those whose benefit the goods were bought.”

The question of whether or not the award of the Workmen’s Compensation Bureau properly is a part of the recoverable damages of the corporate plaintiff remains. Damages must be such as the parties must have contemplated as the natural result o£ the breach of the contract under the special circumstances of the case. Berg v. Rapid, Motor Vehicle Co., 78 N. J. L. 724; 75 Atl. Rep. 933. In Stave v. Giant Food Arcade, 125 N. J. L. 512; 16 Atl. Rep. (2d) 460, recovery was denied for the physical injury suffered by a child who became ill as a result of drinking the contents of a can of pineapple juice, on the theory of warranty, where the purchaser was not the child. However, Mr. Justice Bodine said (125 N. J. L., at p. 513; 16 Atl. Rep. (2d), at p. 460), “the parents however properly sued for damages suffered by reason of expenses incurred by them in and about the cure of their child by reason of the breach of the implied warranty of fitness. That presented a question for the jury under proper instruction.”

The analogy between allowing the parents to recover on the theory of breach of warranty for the expenses incurred in effecting a cure of the child and in allowing a master to recover on the same theory for the expenses imposed on him by law in compensating the injured employee appears to be very strong. However, in the case of Interslate Telephone and Telegraph Co. v. Public Service Electric Co., 86 N. J. L. 26; 90 Atl. Rep. 1062, the employer was not permitted to recover from a tort feasor for the compensation paid to an employee who had been injured by the negligence of the tort feasor on the ground that the compensation paid could not be distinguished from the ordinary compensation called wages. Recovery was also denied in Erie Railroad Co. v. Michelson, 111 N. J. Eq. 541; 162 Atl. Rep. 764, and New York, Susquehanna and Western Railroad Co. v. Huebschmann, 109 N. J. Eq. 40; 156 Atl. Rep. 330, on the ground that there was no implied contract or agreement either in law or in equity that reimbursement to the insurance company would be made out of the judgment recovered against'the third party wrong-doer. In Newark Paving Co. v. Klotz, 85 N. J. L. 432; 91 Atl. Rep. 91, the employer was held to have no right by way of subrogation to the claim of the workman against the tort feasor. It was only by statutory amendment that the right of reimbursement has been secured by the employer and the insurance company against the third party tort feasor.

These eases can be distinguished from the cause of action set forth by counts 1 through 6, in that they are all based on suits in tort for the negligence of third parties who caused personal injury to the employee. It is clear that at the common law only the injured party had the right to bring an action to recover damages. Here the suit is for breach of contract between the parties to the contract. The corporate plaintiff herein is not attempting to subrogate itself to the rights of its employee but is asserting its primary cause of action to recover the direct damages sustained by it by virtue of the defendants’ breach of contract. Counts 1 through .6 are sufficient to set forth a cause of action in law and the motion to strike with respect to them is denied. The court, in deciding a motion to strike, must take as true all the allegations of the complaint which are well pleaded.

In so deciding this motion I am aware that the right of the corporate plaintiff to recover its alleged damages under, our cases involves the question of whether the compensation was paid by the corporate plaintiff as employer or by its carrier. See Standard Surety and Casualty Co. v. Murphy, 129 N. J. Eq. 284; 19 Atl. Rep. (2d) 229; Erie Railroad Co. v. Michelson, supra; Scheno Trucking Co., Inc., v. Bickford, 115 N. J. Eq. 380; 170 Atl. Rep. 881; United States Casualty Co. v. Hyrne, 117 N. J. L. 547; 189 Atl. Rep. 645; Aetna Life Insurance Co. v. Moses, 287 U. S. 530; 53 S. Ct. 231. This is a matter of proof and thus on the motion before the court the allegations of the first six counts must be held to set forth a cause of action sufficient in law and this court so holds.

Counts number 7 through 12 are based on the breach of implied and express warranties and they repeat the allegations of the first six counts with the exception that they do not allege by whom the ladder was purchased. These counts fail to set forth a cause of action sufficient in law. The only person entitled to be considered for damages under a breach of warranty is the person who contracted with the vendor. The alleged warranties arise out of contract and cannot be asserted against one with whom the plaintiff has had no contractual relations. Schlosser v. Goldberg, 123 N. J. L. 470; 9 Atl. Rep. (2d) 699; Cornelius v. Filippone & Co., 119 N. J. L. 540; 197 Atl. Rep. 647. A warranty on the sale of personalty does not run with the property. Diamond T. Motor Car Co. v. Eucker, 10 N. J. Mis. R. 814; 160 Atl. Rep. 41. Counts 7 through 12 will be stricken.

Counts number 13 through 15 seek damages in behalf of the corporate plaintiff for the sums of money which the corporate plaintiff was obliged to pay under the award of the Compensation Bureau. These counts are based on negligence and by them the corporate plaintiff seeks to recover damages from the third party tort feasor apart from any contractual relation. The cause of action attempted to be asserted by these counts is a cause of action in tort for damages arising out of an injury to the person. The right to bring an action in the courts of this state is possessed by the injured person alone. United States Casualty Co. v. Hyrne, supra. Under the Workmen’s Compensation Act, laws of 1911, chapter 95, N. J. S. A. 34:15-1, et seq., where an employee was injured through the negligence of one not his employer, under such •circumstances as to entitle him to compensation from his employer, the employer could not recover from the tort feasor the compensation paid to the employee under the statute.. Inter-State Telephone and Telegraph Co. v. Public Service Electric Co., 86 N. J. L. 36; 90 Atl. Rep. 1062; Erie Railroad Co. v. Michelson, 111 N. J. Eg. 541; 162 Atl. Rep. 764.The legislature has amended the Compensation Act, from time to time, to provide for the reimbursement of the employer or insurance carrier where a third person or corporation is liable to the employee for an injury. The statutory conditions and procedures by which the employer may secure reimbursement are contained in R. S. 34:15-40; N. J. S. A. 34:15-40. At the common law the employer had no right of action. United States Casualty Co. v. Hyrne, supra; Erie Railroad Co. v. Michelson, supra. The statute, being in derogation of the common law, must be strictly construed. The corporate-plaintiff hah not brought itself within the provisions of R. S. 34:15-40; N. J. S. A. 34:15-40. The right of action of the plaintiff being statutory, the requirements of the statute must be strictly met. Standard Surety and Casualty Co. v. Murphy, supra.

The counts 13 through 15 will be stricken.

Counts 16 through 31 are based on the alleged breach off implied and express warranties made by the manufacturer and seller to the individual plaintiff. What has been said with regard to counts 7 through 13 is equally applicable here.. These counts allege that the warranties were made to the general public or ultimate consumers. Warranties are based on contract and there is no allegation to the effect that the-defendants or either of them had contracted with the individual plaintiff. The duty of a manufacturer to exercise reasonable care towards the ultimate consumer as in Cassini v. Curtis Candy Co., supra, and Cornelius v. Filippone, supra, is grounded on tort and not in contract. In Tomlinson v. Armour, 75 N. J. L. 748 (at p. 755); 70 Atl. Rep, 314 (at p. 316) Chancellor Pitney said, “In this state we have repeatedly held that where a duty arises solely out of a contract no one can bring an action for its breach unless he be a party to the contract or one for whose benefit it is made.”

Counts 16 through 21 will be stricken.

An order may be presented in accordance with ther foregoing.


author: Fkankenbach, Commissionee.

text:
    Division of Tax Appeals.
    IN THE MATTER OF THE APPLICATION OF THE CITY OF JERSEY CITY FOR THE RECLASSIFICATION OF CERTAIN PROPERTY OF THE CENTRAL RAILROAD COMPANY OF NEW JERSEY, FOR THE YEARS 1945 AND 1946.
    Decided October 28, 1947.
    For the City of Jersey City, Joseph 0. Glavin.

    For the Central Railroad Company of New Jersey, William F. Hanlon.

    For the State of New Jersey, Benjamin M. Taub, Assistant Attorney-General.
   Fkankenbach, Commissionee.

These are appeals for 1945 and 1946 brought by the City of Jersey City to have the Phillip Street, Lafayette, Jersey Avenue and Henderson Street branches of the Central Railroad Company of New Jersey, together with a connection from the Newark and New YotIi branch to the main line of Central, said connection being known as the Y connection, reclassified from Class I (main stem) assessment and assessed as Class II railroad property in railroad use but not main stem, and to have certain main stem lands, properly assessed as such, which lands are now assessed for a width of 100 feet, contracted to a lesser width for assessment purposes. Affected by the second portion of each appeal are the Newark and New York branch of Central and a portion of the main line consisting of a section starting east of Communipaw Avenue and running westerly to about Chapel Avenue, Jersey City. The appeals for both years were tried together.

Hundreds of pages of testimony were taken and numerous exhibits were introduced at the hearings, and by stipulation testimony taken in a similar appeal by Jersey City with respect to the 1943 assessment of the properties affected by this appeal was made a part of this record. Some of the stipulated testimony in the 1943 appeal included depositions taken in the Supreme Court by Jersey City with respect to the 1942 assessment of these properties.

The pertinent portions of the statute controlling the assessment by the Director of the Division of Taxation (formerly State Tax Commissioner) of main stem lands as to classification, said statute being R. S. 54:29A-17; N. J. S. A. 54:29A-17, are:

"On or before November first in each year the Commissioner shall determine the true value, as of the preceding January first, of all property used for railroad purposes in this State. He shall, in such determination, ascertain values according to the following classes:

"I. The length and value of the main stem of each railroad, and the length of such main stem in each taxing district;

HI. The value of the other real estate used for railroad purposes in each taxing district in this State, including the roadbed (other than main stem), tracks, buildings, water tanks, riparian rights, docks, .wharves, and piers, and all other real estate, except lands not used for railroad purposes.”

The definition of main stem, as set forth in the statute, R. S. 54:29A-2; N. J. S. A. 54:29A-2, reads:

" ‘Main stem’ of a railroad means the roadbed not exceeding one hundred feet in width, with its rails and sleepers, and all structures erected thereon and used in connection therewith, not including passenger or freight buildings erected thereon.”

Addressing ourselves in the first instance to both aspects of the instant appeals as a single problem, we are frank to admit that we feel bound by the decision of the New Jersey Supreme Court with respect to the very questions placed before us.

It will be noted that part of the record produced before the Division of Tax Appeals includes depositions taken before the New Jersey Supreme Court in a similar appeal affecting these properties for the 1942 assessment.

In disposing of these questions in the 1942 appeal, the Supreme Court stated, in State v. State Board of Tax Appeals, 134 N. J. L. 34; 45 Atl. Rep. (2d) 599:

“Various branches are involved. Our careful examination of the testimony and exhibits satisfies us that hereto tl«e method employed by the Commissioner and the result reached by him are correct, save in one particular. It was frankly admitted by Mr. Focht that in some instances (main stem) as assessed or valued exceeded the statutory width limited to one hundred feet.”

This decision of the Supreme Court was affirmed by the Court of Errors and Appeals, 135 N. J. L. 481; 52 Atl. Rep. (2d) 852.

The Division is bound by the pronouncements of the Supreme Court in Central Railroad Company of New Jersey v. J. H. Thayer Martin, 114 N. J. L. 69; 175 Atl. Rep. 637, and as the New Jersey Supreme Court has spoken on these very issues, we have no alternative, the testimony being substantially the same in the record, but to follow the decision and determination of that higher tribunal.

However, even if there was not this prior decision of the Supreme Court in the 1942 ease to follow, and we were to determine the issues before us on the record and on our independent judgment, we would arrive at a like result.

There is at all times a presumption in favor of the correctness of an assessment. As stated in Estell v. Hawkins, 50 N. J. L. 122; 11 Atl. Rep. 265:

“The presumption is in favor of the correctness of the estimation made by the assessor, the sworn officer, and before a tax can be disturbed on the ground alleged, the burden is put upon the objector to show by his proofs a clear error in such estimation.

“When the testimony does not decidedly bear against the correctness of the assessor’s action, the court cannot disturb it.”

The foregoing was quoted with approval in Central Railroad Company of New Jersey v. State Tax Department, 112 N. J. L. 5; 169 Atl. Rep. 489, where the court expressed in the following language what it considered to be the proper type of testimony to overcome this presumption:

“But was the testimony in the instant case sufficiently definite, positive or certain in quality or quantity to overcome the presumption of the correctness of the assessment made?”

More than this usual presumption of correctness, however, attaches to the assessments with respect to which these appeals were taken. We must here consider that the Director (formerly State Tax Commissioner) has the legislative authority to use his personal knowledge and judgment under the provisions of R. S. 54:29A-67; N. J. S. A. 54:29A-67, which reads:

“The commissioner shall be entitled to use his personal knowledge and judgment as to the value of any property which he is required to assess, upon original assessment or upon review thereof.”

So we must here consider not only that the assessment carries with it the usual legal presumption of correctness but also that we should not and cannot disturb the assessment, because of this statutory grant given the Director, except for “palpable error,” as that has been the test applied by the courts in the interpretation of the statute hereinbefore set forth. As was stated in Central Railroad of New Jersey and another v. State Board of Assessors, 49 N. J. L. 1; 7 Atl. Rep. 306:

“We do not consider that we have the right to alter or annul any of the proceedings of this body except for palpable error; for it is not to be overlooked that the statute in question expressly declares that the assessors ‘shall be entitled to use their personal knowledge and judgment as to the value of the property.’ ”

Originally the duties now performed by the Director of the Division of Taxation, as far as assessments of railroad properties are concerned, devolved upon the State Board of Assessors, referred to in the foregoing quotation as “this body.” It is significant that in Central Railroad of New Jersey v. State Board of Assessors, supra, the Supreme Court did not limit the restriction placed upon themselves to the question of valuation only. They considered that they had no right to “alter or annul” except for palpable error “any of the proceedings” of the Board of Tax Assessors.

And the cited decision in the Central Bailroad of New Jersey case has been followed in United New Jersey Railroad and Canal Co. v. State Board of Taxes and Assessments, 100 N. J. L. 131; 125 Atl. Rep. 335; Long Dock Co. v. State Board of Assessors, 80 N. J. L. 592; 92 Atl. Rep. 439, and Pitney et al. v. Kelly, 21 N. J. Mis. R. 405; 34 Atl. Rep. (2d) 547.

We view the use of this expression “any of the proceedings” as a mandate that just as we should not disturb a valuation established by the Director “except for palpable error” so also we should not, except for “palpable error,” disturb the determination of the Director as to classification of main stem or as to the amount of property determined by him to constitute main stem.

Addressing ourselves to the first aspect of these appeals, that the Director erroneously assessed certain branches as main stem instead of as other real estate used for railroad purposes, we must determine whether or not Jersey City, the appellant, has proved that the Director committed “palpable error” in his determination that these branches met the statutory requirements of R. S. 48:12-24, 25 and 26; N. J. S. A. 48:12—24, 25 and 26, portions of what is commonly known as The Bailroad Act. We must look to The Bailroad Act, for nowhere in The Railroad Tax Act (chapter 291, laws of 1941; N. J. S. A. 54:29A—1, et seq.) is the word “branch” used, although it will be noted that in disposing of the appeal by Jersey City with respect to this question in the 1942 case the Supreme Court, in State v. State Board of Tax Appeals, supra, used the words: “Various branches are involved.”

And the test is the same with respect to the second aspect of these appeals. Assessments were for the entire width of one hundred feet, the maximum allowed by statute. Did Jersey City, the appellant, prove that the Director committed “palpable error” in assessing this width instead of a lesser width as main stem?

Our answer to these questions is the same in each instance, namely, that the appellant has not carried the burden of proof required of it for us to determine that there was “palpable error” in these determinations of the' Director. To use a quotation from the opinion of the Supreme Court in United New Jersey Railroad and Canal Co. v. State Board of Taxes and Assessment et al., 101 N. J. L. 303; 128 Atl. Rep. 427, “The assessments are supported by the evidence.” And to further quote from the cited opinion, “We are unable to say” that the testimony adduced by Jersey City “so preponderates as to overcome the judgment of the” Director “and the testimony that supports it.”

Dor the reasons stated the appeals for both years will be dismissed.

Judgments accordingly.