author: Smith, Jos. L., C. C. J. and S. O. 0.

text:
    WALTER D. VAN RIPER, PLAINTIFF, v. T. JAMES TUMULTY, DEFENDANT.
    Decided January 5, 1948.

      For the plaintiff, Harry Green.

    For the defendant, John F. Lynch, Jr. (John A. Matthews, of counsel).
   Smith, Jos. L., C. C. J. and S. O. 0.

The plaintiff’s complaint against the defendant is in two counts, charging alleged slander and libel.

The first count, among other allegations, alleges the plaintiff is a member of the New Jersey Bar and Attorney-General of the State of New Jersey and that the defendant also is a member of said bar.

On or about March 22d, 1946, at Trenton, New Jersey, plaintiff charges the defendant with falsely and maliciously uttering and speaking of and concerning the plaintiff in his profession and calling as a lawyer, and Attorney-General, false, malicious and defamatory matter as more fully set forth in said complaint.

The second count alleges that on April 3d, 1946, the defendant published and circulated in Trenton, New Jersey, written false, malicious and defamatory matter, fully set out in said second count, and re-alleges all of the first count except paragraph 9 of said first count which said paragraph sets forth the uttered and spoken statements complained of in said first count.

The defendant’s answer admits and denies different paragraphs and portions of both counts.

It also sets up seven separate defenses to all counts and an eighth separate defense to the second count.

' In his reply the plaintiff denies and admits different parts ■of the answer and separate defenses. He. also reserved his right to move to strike portions of the answer and the grounds therefor.

The plaintiff’s motion, in accordance with objections to said answer so reserved, is now before this court on a motion to strike the following portions of the answer:

(1) First count, paragraph 4, which alleges “that said attacks have been and are justified, and are for the public good,” upon the grounds that same are irrelevant, argumentative and conclusions of facts and law.

(2) First count, paragraph 7, which alleges “that plaintiff should resign or be removed from the office of Attorney-General of the State of New Jersey” upon the grounds that same is irrelevant, argumentative, and conclusions of facts and law.

The plaintiff also moves to strike the second, third, fourth, fifth, seventh, and eighth separate defenses to both counts on the grounds that these defenses are insufficient in point of law, and fail to allege facts, and set forth conclusions of fact and law, and he also moves to strike the sixth separate defense on the ground it is insufficient in point of law.

The plaintiff contends that Supreme Court rule 40, N. J. S. A. tit. 2, which would be effective, pertinent provision is as follows:

“In lieu of a motion to strike out, the same objection, and any point of law (other than a question of pleading or practice) may be raised in the answering pleadings, and may be disposed of at, or after, the trial; but the court, on motion of either party, may determine the question so raised before trial, and if the decision be decisive of the whole ease the court may give judgment for the successful party or make such order as may be just. (Eule 6, Practice Act 1912.)”

Fo reference is made in the notice of motion asking the court to enter judgment for defendant if motion to strike defenses is denied.

Let us consider the fourth, fifth, and seventh separate defenses. These three defenses claim absolute constitutional privilege, as well as absolute privilege granted to counsel in a judicial or grom'-judieial proceeding.

It is contended by counsel for the plaintiff that the court’s ruling on this motion in disposing of these fourth, fifth, and seventh defenses, may be dispositive of this case as a matter of law. That if this court denies the motion to strike the fourth, fifth, and seventh separate defenses, and holds that same, or any one thereof, constitute good, valid and complete defenses and gave defendant absolute immunity to utter the words or publish the statement in question either during a legislative session or judicial hearing or both, said decision would be dispositive of the whole case and as a matter of law defeat plaintiff’s recovery, and the court may give judgment for the successful party or make such order as may be just in accordance with said Supreme Court rule 40.

Por the purposes of this motion the matters stated in the separate defenses are taken to be admitted as true.

This motion necessarily opens the entire record for consideration.

The plaintiff admits at the time of the utterance of the words quoted in said complaint that the defendant was a duly elected member of the House of Assembly of New Jersey.

Counsel for the plaintiff contends that the defendant waived these defenses of privilege. There is nothing in the record in writing waiving such defenses of privilege and there is no stipulation so agreeing and it might well be disregarded, however, it will be commented on. Our statute controls just such a situation as the plaintiff claims. R. S. 2:27-6; N. J. S. A. 2:27-6, provides:

"Admissions, consents, or agreements made out of court by the parties or their attorneys or counsellors with respect to the conduct of an action shall not be taken notice of by the court unless they are in writing.”

The fourth, fifth and seventh separate defenses could not be stricken on the ground of waiver as the statute had not been complied with in accordance with the provisions therein set forth.

Prom a consideration of the correspondence between counsel it is clear as evidenced by plaintiff’s counsel’s letters of August 30th, 1946, and December 2d, 1946, and defendant’s counsel’s letters of September 4th, 1946, and December 5th, 1946, that the defendant intended to waive the defenses of privilege if the motion to advance this case for immediate or early trial was granted at the opening of the September term, 1946. This said motion was twice denied.

Under article 4, section 4, paragraph. 8, of the New Jersey Constitution, N. J. S. A., it is provided:

“8. Privilege of Members. Members of the Senate and General Assembly shall, in all cases except treason, felony and breach of the peace, be privileged from arrest during their attendance at the sitting of their respective houses, and in going to and returning from' the same; and for any speech or debate in either house, they shall not be questioned in any other place.”

The plaintiff urges these defenses should be stricken because the words and statements complained of were made before the Judiciary Committee of the House of General Assembly which he argues is not the House.

House clearly applies to the membership of the Senate and General Assembly or any duly constituted part of the Senate or General Assembly such as a committee created by the membership of the General Assembly under its rules, authority and powers. The legislature is composed of the members of the Senate and the General Assembly.

House means the meeting of members of either the Senate or General Assembly as a whole or by committee. If a committee of the General Assembly is not a part of the House of General Assembly as the plaintiff contends, then what is it? A committee of the General Assembly created by the General Assembly itself from its own members acts for the General Assembly as a part of the legislature and enjoys the same privileges as when its full membership is in session. These alleged statements were made by the defendant while a member of the General Assembly before a duly constituted Judiciary Committee of said General Assembly in the performance of his duties as an Assemblyman, and therefore, he enjoyed the constitutional privilege granted to a member of the General Assembly and Legislature. Cole v. Richards, 108 N. J. L. 356; 158 Atl. Rep. 466.

Our state constitution, article 4, section 4, paragraph 8, is identical, word for word, with article 1, section 6, clause 1, of the United States Constitution in so far as its provisions are applicable to the instant motion.

The history and the reasons for these provisions in the federal and state constitutions, including the New Jersey Constitution, are stated in Kilbourn v. Thompson (U. S. Supreme Court, 1880), 103 U. S. 168, and Coffin v. Coffin (Mass., 1808), 4 Mass. 1; Cochran v. Couzens, 59 App. D. C. 374; 42 Fed. Rep. (2d) 783; (certiorari denied, 282 U. S. 874; 51 S. Ct. 79).

Mr. Justice Miller, speaking for the United States Supreme Court, in Kilbourn v. Thompson, supra (at pp. 201-204), said:

“The House of Representatives is not an ordinary tribunal. The defendants set up the protection of the constitution, under which they do business as part of the Congress of the United States. That constitution declares that the senators and representatives 'shall in all cases, except treason, felony, and breach of the peace, be privileged from arrest during their attendance at the session of their respective Houses, and in going to and returning from the same; and for any speech, or debate in either House they shall not be questioned in any other place/ ”

Is what the defendants did in the matter in hand covered by this provision? Is a resolution offered by a member, a speech or debate, within the meaning of the clause? Does its protection extend to the report which they made to the House of Kilbourn’s delinquency? To the expression of opinion that he was in contempt of the authority of the House ? To their vote in favor of the resolution under which he was imprisoned? If these questions be answered in the affirmative, they cannot be brought in question for their action in a court of justice or in any other place. And yet if a report, or a resolution, or a vote is not a speech or debate, of what value is the constitutional protection ?

We may, perhaps, find some aid in ascertaining the meaning of this provision, if we can find out its source, and fortunately in this there is no difficulty. For while the framers of the constitution did not adopt the lex et consuetudo of the English Parliament as a whole, they did incorporate such parts of it, and with it such privileges of Parliament, as they thought proper to be applied to the two Houses of Congress. Some of these we have already referred .to, as the right to make rules of procedure, to determine the election and qualification of its members, to preserve order, &e. In the sentence we have just cited another part of the privileges of Parliament are made privileges of Congress. The freedom from arrest .and freedom of speech in the two Houses of Parliament were long subjects of contest between the Tudor and Stuart kings and the House of Commons. When, however, the revolution •of 1688 expelled the last of the Stuarts and introduced a new dynasty, many of these questions were settled by a bill of rights, formally declared by the Parliament and assented to by the crown. 1 W. & M., st. 2, c. 2. One of these declarations is “that the freedom of speech, and debates, and proceedings in Parliament, ought not to be impeached or questioned in any court or place out of Parliament.”

In Stockdale v. Hansard, Lord Denman, speaking on this ■subject, says: “The privilege of having their debates unquestioned, though denied when the members began to speak their minds freely in the time of Queen Elizabeth, and punished in its exercise both by that princess and her two successors, was soon clearly perceived to be indispensable and universally acknowledged. By consequence, whatever is done within the walls of either assembly must pass without question in any other place. Eor speeches made in Parliament by a member to the prejudice of any other person, or hazardous to the public peace, that member enjoys complete impunity. For every paper signed by the speaker by order of the House, though to the last degree calumnious, or even if it brought personal suffering upon individuals, the speaker cannot be arraigned in a court of justice. But if the calumnious or inflammatory speeches should be reported and published, the law will attach responsibility on the publisher. So if the speaker by authority of the House order an illegal act, though that authority shall exempt him from question, his order shall no more justify the person who executed it than King Charles’s warrant for levying ship-money could justify his revenue officer.”

Taking this to be a sound statement of the legal effect of the Bill of Bights and of the parliamentary law of England, it may be reasonably inferred that the framers of the constitution meant the same thing by the use of language borrowed from that source.

Many of the colonies, which afterwards became States in onr Union, had similar provisions in their charters or in bills of rights, which were part of their fundamental laws; and the general idea in all of them, however expressed, must have been the same, and must have been in the minds of the members of the constitutional convention. In the Constitution of the State of Massachusetts of 1780, adopted during the war of the Revolution, the twenty-first article of the Bill of Rights embodies the principle in the following language: “The freedom of deliberation, speech, and debate in either House of the legislature is so essential to the rights of the people, that it cannot be the foundation of any accusation or prosecution, aetion, or complaint, in any other court or place whatsoever.”

This article received a construction as early as 1808, in the Supreme Court of that state, in the case of Coffin v. Coffin, supra, in which Mr. Chief Justice Parsons delivered the opinion. The ease was an action for slander, the offensive language being used in a conversation in the House of Representatives of the Massachusetts legislature. The words were not delivered in the course of a regular address or speech, though on the floor of the House while in session, but were used in a conversation between three of the members, when neither of them was addressing the chair. It had relation, however, to a matter which had a few moments before been under discussion. In speaking of this article of the Bill of Rights, the protection of which had been invoked in the plea, the Chief Justice said: “These privileges are thus secured, not with the intention of protecting the members against prosecutions for their own benefit, but to support the rights of the people, by enabling their representatives to execute the functions of their office without fear of prosecutions, civil or criminal. I, therefore, think that the article ought not be construed strictly, but liberally, that the full design of it may be answered. I will not confine it to delivering an opinion, uttering a speech, or haranguing in debate, but will extend it to the giving of a vote,, to the making of a written report, and to every other act resulting from the nature and in the execution of the office. And I would define the article as securing to every member exemption from prosecution for everything said or done by him as a representative, in the exercise of the functions of that office, without inquiring whether the exercise was regular, according to the rules of the House, or irregular and against their rules. I do not confine the member to his place in the House; and I am satisfied that there are cases in which he is entitled to this privilege when not within the walls of the representatives5 chamber.55

The report states that the other judges, namely, Sedgwick, Sewall, Thatcher, and Parker, concurred in the opinion.

This is, perhaps, the most authoritative ease in this country on the construction of the provision in regard to freedom of debate in legislative bodies, and being so early after the formation of the Constitution of the United States, is of much weight. We have been unable to find any decision of a federal court on this clause of section 6 or article I, though the previous clause concerning exemption from arrest has been often construed.

Mr. Justice Story (section 866 of his Commentaries on the Constitution) says: “The next great and vital privilege is the freedom of speech and debate, without which all other privileges would be comparatively unimportant or ineffectual. This privilege also is derived from the practice of the British Parliament, and was in full exercise in our colonial legislation, and now belongs to the legislation of every State in the Union as matter of constitutional right.55

It seems to us that the views expressed in the authorities we have cited are sound and are applicable to this case. It would be a narrow view of the constitutional provision to limit it to words spoken in debate. The reason of the rule is as forcible in its application to written reports presented in that body by its committees, to resolutions offered, which, though in writing, must be reproduced in speech, and to the act of voting, whether it is done vocally or by passing between the tellers. In short, to things generally done in a session of the House by - one of its members in relation to the business before it.55

Thus freedom of speech is guaranteed to a member of legislature certainly at least while performing his legislative duties.

This privilege is not alone for the protection of the members personally of the legislature, but rather to protect and support •the rights of the citizens of the state and the privilege is-absolute so long as it relates to acts done in relation to legislative matters. Coffin v. Coffin, supra.

Monahan v. Hollingshead (not officially reported) has no-application to the questions here under consideration. It did not involve a pleading or parties in a judicial proceeding.

The defendant’s statements and other matters complained' of in the complaint were made in a judicial or gwasi-judicial proceeding as a member of the General Assembly after a resolution of impeachment had been introduced by him in the-House of General Assembly containing the words complained of and after a resolution had been adopted by the House of General Assembly referring it to its duly constituted judiciary committee. Privilege as a defense as pleaded in fifth separate-defense will stand. LaPorta v. Leonard, 88 N. J. L. 663; 97 Atl. Rep. 251; Rogers v. Thompson, 89 N. J. L. 639; 99 Atl. Rep. 389; McCrann v. Gaul, 95 N. J. L. 393; 112 Atl. Rep. 341; Id., 96 N. J. L. 165; 112 Atl. Rep. 603; Alagna v. N. U. and Cuba Mail S. S. Co., 155 Misc. 796; 279 N. Y. S. 319; Yancey v. Kentucky, 135 Ky. 207; 122 S. W. Rep. 123.

The plea of truth is a-good defense and therefore the sixth' separate defense will not be stricken.

At the time of oral argument and in his brief defendant asks leave to amend the second and third separate defenses-by adding his honest belief of the truth of the alleged words spoken and without malice. This amendment will be allowed and the defenses stand.

Ho argument is submitted on this motion to strike paragraphs 4 and 7 of the first count.

: There is no motion before this court to strike the first separate defense or the answers to the first and second counts • except as herein noted.

The motion to strike portions of the answer filed by the-defendant in accordance with notice of motion setting forth said portions of answers and objections thereto pursuant to-•reservation of motion to strike same contained in plaintiff’s! reply is denied.

Kindly submit an order accordingly.'


source: Caselaw Access Project

author: Mabtino, D. C. J.

license: Public Domain

text:
    Camden City District Court.
    DANTE DE CECCO, PLAINTIFF, v. ALFRED E. WEBER AND MARY E. WEBER, DEFENDANTS.
    Decided December 30, 1947.
    For the plaintiff, Wilfred B. Wolcott.

    For the defendants, Samuel P. Hagerman.

   Mabtino, D. C. J.

The complainant has instituted dispossess proceedings based upon an affidavit of jurisdiction in this court which affidavit sets forth two separate grounds for the removal of the defendants.

The first ground is based upon the right to possession grounded on the theory that defendants are tenants at will. The affidavit states that "On September 1, 1939, I made a lease with the defendants for the continued occupancy of said premises, which lease was for a period of 'five years and expired on September 1, 1944. After expiration of said lease the defendants continued in possession of said premises as tenants at will, paying the same monthly rent provided for by said lease and occupying the premises described in said lease and being subject to all the terms thereof ” On May 22d, 1947, the complainant served a notice upon the defendants requiring them to surrender possession of said premises to him on December 1st, 1947.

The second ground was based upon the theory that the written lease entered into between the parties dated September 1st, 1939, and to continue until September 1st, 1944, under which lease the tenants held over as “tenants at will” provided “that they (tenants) should not make or suffer to be made any alterations in the premises without my written consent” and “the defendants have violated the terms of said lease and have made alterations in said premises as follows” then followed the several alterations which were made in the building.

A motion was made by defendants to dismiss the proceedings since they contended the affidavit did not present factually or legally sufficient facts to warrant jurisdiction in this court.

Disposition of the ease will be made in the inverse order that the legal questions have been presented in the jurisdictional affidavit.

The District Court Act, R. S. 2:32-265; N. J. S. A. 2:32-265, has been construed by our appellate courts in so far as the right to proceed summarily is concerned for the breach of a covenant in a lease. The complainant undoubtedly prepared the jurisdictional affidavit based upon paragraph (C) of this statute. The appellate courts have ruled that in so far as the right of re-entry is concerned the affidavit must show this right independent of the statute for the act is unconstitutional in so far as it attempts to give a right to summary dispossession on the mere violation of any covenant. George Jonas Glass Co. v. Ross, 69 N. J. L. 157; 53 Atl. Rep. 675; Manahan v. City of Englewood, 108 N. J. L. 249; 157 Atl. Rep. 241.

The other cause of action set up in the affidavit must be reconciled with the opinions of both the Supreme Court and Court of Errors and Appeals in Shack v. Weissbard (Supreme Court), 130 N. J. L. 472; 33 Atl. Rep. (2d) 571; (Court of Errors and Appeals), 131 N. J. L. 314; 36 Atl. Rep. (2d) 594. The facts in which case were these:

"On August 8th, 1938, defendant, Weissbard, leased the' premises from the Revenue Building and Loan Association for a period of one year, beginning October 1st, 1938, at a rental of $1,200 per annum, payable at the rate of $100 a month. The contract contained no provision for notice of termination to supersede the notice requisite of the statute, R. S. 2:58-22; N. J. S. A. 2:58-22. At the end of the first year Weissbard held over and thereby became a year to year tenant. Cf. Maier v. Champion, 97 N. J. L. 493, 495; 117 Atl. Rep. 603. As such tenant it is clear that Weissbard was entitled to three months’ notice in termination of the tenancy. R. S. 2:58-22, 46:8-9; N. J. S. A. 2:58-22, 46:8-9. The tenancy was continued by Weissbard holding over each year successively through October 1st, 1941. The plaintiff, Abraham J. Shack, purchased the premises on April 21st, 1942, and on August 19th of that year gave written notice to Weiss-bard to quit the premises on October 1st, 1942. The statute of 1941, R. S. 46:8-10; N. J. S. A. 46:8-10, reads as follows : "Whenever a tenant whose original term of leasing shall be for a period of one month or longer shall hold over or remain in possession of the demised premises beyond the term of the letting, the tenancy created by or resulting from acceptance of rent by the landlord shall be a tenancy from month to month in the absence of any agreement to the contrary.” The only question in this case therefore is whether by virtue of this act a one month notice to the defendant, Weissbard, could end the tenancy which he enjoyed in August, 1942, or whether a three months’ notice to quit was indispensable if the tenancy was to be ended on October 1st of that year.”

R. S. 46:8-10; N. J. S. A. 46:8-10, became effective August 4th, 1941.

The Supreme Court in Shack v. Weissbard, supra, said, “The hold over which created a year to year tenancy occurred on October 1st, 1939.”

The Court of Errors and Appeals in affirming the conclusion of the Supreme Court supra held "In this case the 'original term’ of one year began on October 1st, 1938.”

Applying the Court of Errors and Appeals construction of R. S. 46:8-10; N. J. S. A. 46:8-10, the defendant tenant in the case at hand began his term under his written lease on September 1st, 1939, therefore R. S. 46:8-10; N. J. S. A. 46 :8—10 being prospective in nature would not affect his lease. The defendant’s lease was one from year to year and the notice of May 22d, 1947, was defective.

The motion to dismiss is allowed.


author: Haktshopjste, C. P. J.

text:
    Essex County Court of Common Pleas.
    CHARLES WILSON, AN INFANT, BY HIS NEXT FRIEND, GEORGE WILSON, AND GEORGE WILSON, INDIVIDUALLY, PLAINTIFFS, v. NEWARK SMELTING AND REFINING CO., INC., A CORPORATION INCORPORATED IN THE STATE OF NEW JERSEY, FEBRUARY 26th, 1941, DEFENDANT.
    Decided December 4, 1945.
    Eor the plaintiffs, Harry Cohn.

    Eor the defendant, Milton M. Unger.

   Haktshopjste, C. P. J.

Defendant moves to strike the complaint herein on the ground that proceedings in the Workmen’s Compensation Bureau are plaintiffs’ sole and exclusive remedy.

Plaintiff Charles Wilson is a minor over "16 years of age” but "under the age of 18 yeaTS.” He sues the defendant employer in the first count for negligence in and about his employment, alleging his employment in a foundry to be in violation of law. R. S. 34:2-21.17; N. J. S. A. 34:2-21.17. The plaintiff father sues in the second count on the same facts for expenses and loss of services of his son. Since both sides rely upon the conclusive effect of the terms of the Workmen’s Compensation Act, we proceed to the consideration of such act and its amendments so far as pertinent.

The original act covered the employment of both adults- and minors: "In the employment of minors, Section II [that covering, employers and employees generally] shall be presumed to apply unless the notice [that such Section II is not to apply] be given by or to the parent or guardian of the minor [instead of by the employee himself as in the case of adults].” Pamph. L. 1911, ch. 95, pp. 134, 137, § II, subsec. 9. No such notice is alleged in the case at bar.

The original act further provided in section II that: "When employer and employee shall by agreement * * * accept the provisions of Section II of this Act, compensation for personal injuries to * * * such employee by accident arising out of and in the course of his employment, shall be made * * * according to the schedule” set forth in the act.

(Ibid., sub sec. 7.)

By subsection 8 of the same act it was provided that: "Such agreement shall be a surrender by the parties thereto of their rights to any other method, form or amount of compensation or determination thereof than as provided in Section II of this Act *■ * In short, both adults and minors, so far as all lawful employment contracts were concerned, were, in the absence of notice to the contrary, barred by the Compensation Act. from bringing a suit similar to that here involved.

But since the Compensation Act was held not to cover illegal contracts of employment, minors illegally employed were not bound by its above surrender provisions, and so had, the same right as previously—the sole right—to bring such action at law. Hetzel v. Wasson Piston Ring Co. (Court of Errors and Appeals), 89 N. J. L. 201; 98 Atl. Rep. 306; Lesko v. Liondale Bleach Works, 93 N. J. L. 4; 107 Atl. Rep. 275. These decisions however were based on the illegality of the employment contract, not on the minority of the employee. “This statutory provision with relation to the recovery of compensation only applies where the contract of hiring is a valid one, and not where such contract is prohibited by the statute law of the state.” Lesko v. Liondale, supra. Thus, the Workmen’s Compensation Act, as origi-, nally enacted, barred every minor to whom it applied, from an action, such 'as the present, against his employer, his remedy lying solely under the Compensation Act itself.

Evidently, however, this situation, which prevented minors illegally employed from obtaining the more certain recovery of moneys under the Compensation Act, did not meet with legislative approval, with the result that in 1924 the legislature amended the Workmen’s Compensation Act to make it cover illegal contracts affecting minors. Damato v. De Lucia, 10 N. J: Mis. R. 308; 159 Atl. Rep. 526; reversed on other grounds, 110 N. J. L. 380; 166 Atl. Rep. 173; El v. Newark Star Ledger, 131 N. J. L. 373, 382; 36 Atl. Rep. (2d) 616. In doing this, the legislature sought to discourage sueh illegal contracts, both by granting double compensation to those under 16 and by retaining for those under 16 who were illegally employed, their sole pre-existing right, in the alternative, to bring their common law action. “If the injured employee at the time of the accident is * * * a minor between 14 and 16 years of ago employed * * * at an occupation prohibited at that age by the labor law, a compensation or death benefit shall be payable to the employee or his dependents, which shall be double the amount payable under the schedule provided * * *. Nothing in this act contained shall deprive an infant under the age of 16 [italics mine] of the right or rights now existing to recover damages in a common law or other appropriate action or proceeding for injuries received by reason of the negligence of his or her master.” Pamph. L. 1924, ch. 159, § 9. The above provisions thus saved to those “under the age of 16” the right to bring such an aetion at law as the present, though same was barred to minors generally. The above provisions were carried over substantially verbatim into the 1940 amendment to the Workmen’s Compensation Act, which was in effect at the time of the accident here involved. R. S. 34:15-10; N. J. S. A. 34:15-10, as amended by Pamph. L. 1940, ch. 176, p. 539.

Clearly, this limitation to those under 16, twice appearing in the same amending act, expresses a definite legislative intent. Moreover, this specific intent as to the fixing of such age limit' is made even more clear by the fact that but this year (1945), when the legislature amended the above double compensation clause to cover those under 18 instead of those under 16, it concurrently, and in the same section, amended, the above saving clause to cover those under 18 instead of those under 16. Indubitably, the legislature specifically intended to save from its original bar against actions at law by both adults ánd minors, who came under the beneficent pro-' visions of the Compensation Act, the rights of those under 16 and, today, under 18—the very ages where illegal employments are most apt to occur. But, by the same token, this saving clause saves from such general ban of the act, only such rights as it says, i. e., the rights of those “under the age of 16.” To reach any other conclusion would render utterly nugatory the express language of the legislature, twice repeated in the 1924 amendment, twice again repeated in the 1940 amendment, and twice again repeated, but with the age limit raised to 18, in the 1945 amendment. Pamph. L. 1945, ch. 74, .§ 4. -

Nor are the decisions to the contrary. While there have' been several decisions construing the above saving clause, everyone of them concerned minors under the age of 16, the very class which the statute expressly protected. Damato v. De Lucia, supra; Terlingo v. Belz-Parr, Inc. (Court of Errors and Appeals), 106 N. J. L. 221; 147 Atl. Rep. 480; Zisko v. Travelers Insurance Co. (Court of Errors and Appeals), 117 N. J. L. 366; 189 Atl. Rep. 389; Mauthe v. B. & G. Service Station, 5 N. J. Mis. R. 981; 139 Atl. Rep. 245. Hone of such cases applies to minors over 16, the age of plaintiff here. It is of course improper to rip from their context a few words in such decisions and attempt to apply them authoritatively to the radically different state of facts here involved.

Hor does the language of the 1945 amendment to the above saving clause permit its application retroactively to the accident here involved, which occurred in 1943. In re St. Michael’s Church, 76 N. J. Eq. 524, 532; 74 Atl. Rep. 491; N. Y. S. & W. R. R. Co. v. Huebschman (Court of Errors and Appeals), 111 N. J. Eq. 547, 550; 162 Atl. Rep. 767; Allord v. Henry Muhs Co., 10 N. J. Mis. R. 1230; 163 Atl. Rep. 97; affirmed (Court of Errors and Appeals), 111 N. J. L. 237; 168 Atl. Rep. 298.

The rights of the father, obviously, can rise no higher than those of his son. Buonfiglio v. Neumann & Co. (Court of Errors and Appeals), 93 N. J. L. 174; 107 Atl. Rep. 285; Hartman v. Unexcelled Manufacturing Co. (Court of Errors and Appeals), 93 N. J. L. 418; 108 Atl. Rep. 357. Indeed, there are additional reasons why his right to sue at law is barred. Hetzel v. Wasson Piston Ring Co., supra.

The motion to strike the entire complaint is therefore granted.


author: Pkoctoe, G. C. J.

text:
    Gloucester County Circuit Court.
    IN THE MATTER OF THE CONTEST OF THE ELECTION OF GEORGE R. RAY TO BOROUGH COUNCIL OF THE BOROUGH OF PAULSBORO, GLOUCESTER COUNTY, NEW JERSEY.
    Decided December 26, 1947.

      For the petitioners, William B. Kramer.

    For the incumbent George R. Ray, James B. Avis and B. Edward Klaisz, Jr.

   Pkoctoe, G. C. J.

Eighteen residents and legal voters of the Borough of Paulsboro, County of Gloucester, filed a petition in tbis court praying that the election of George R. Ray to the Borough Council of the Borough of Paulsboro be annulled and that “* * * George L. Brown, the candidate receiving the next highest number of votes, be declared elected and a certificate of election be issued to him; or that the said office of Borough Councilman of the Borough of Paulsboro be declared to be vacant.”

The petition alleges that at the time of the election George R. Ray was not eligible to fill the office of Borough Councilman of the Borough of Paulsboro, because he was not a registered voter and that the “said George R. Ray was ineligible to run for said office because his acceptance of the nomination was false and defective in that it contained a statement by the said George R. Ray that he was a legal voter.”

The petition is filed pursuant to R. S. 19 :29-1, b,:i.; N. J. S. A. 19:29-1, b,i.

At the hearing it appeared that George R. Ray was a citizen of the United States and has been a resident of the Borough of Paulsboro for a period of thirty years. It further appeared that George R. Ray was not registered to vote in the Borough of Paulsboro at the time he accepted the nomination run for the office of Borough Councilman in said borough, nor was he registered on June 9th, 1947, the date of the primary election, nor was he registered on November 4th, 1947, the date of the general election; he did become a registered voter on December 6th, 1947, when he appeared at the office of the County Board of Elections and registered.

The incumbent Kay’s eligibility to the office of Borough Council is to be determined as of the date he was elected and not at a subsequent date. R. S. 19:29-1, b; N. J. S. A. 19:29-1, b; Chandler v. Wartman, 6 N. J. L. J. 301. Therefore, the problem for determination is: Was Kay qualified to hold the office of Borough Councilman on November 4th, 1947, the date of the election?

R. S. 19:23-15; N. J. S. A. 19:23-15, provides, “Accompanying the petition (endorsing a candidate) and attached thereto each person endorsed thereon shall file a certificate, stating that he is qualified for the office mentioned in the petition ; that he consents to stand as a candidate for nomination at the ensuing primary election, and that if nominated he agrees to accept the nomination. Such acceptance shall certify that the candidate is a resident of and a legal voter in the jurisdiction of the office for which the nomination is to he made * * (Italics supplied.)

In accepting the endorsement to stand for nomination for the office of Borough Councilman, Ray signed a certificate which included the statement: “I am a resident of and a legal voter in the jurisdiction of the office for which the nomination is to be made.”

Article 2, paragraph 1 of the state constitution, N. J. S. A., declares: “Every male citizen of the United States, of the age of twenty-one years, who shall have been a resident of this state one year, and of the county in which he claims his vote five months, next before the election, shall be entitled to vote for all officers that now are, or hereafter may be elective by the people; * *

R. S. 40:11-1; N. J. S. A. 40:11-1, provides: “* * * every person holding an office, the authority and duties of which relate to a municipality, shall reside within the municipality.”

It is fundamental that the right to hold public office is restricted to those who are qualified voters under the constitution. Chandler v. Wartman, supra. This principle was further declared by the legislature, subsequent to the adoption of the nineteenth Amendment, in enacting R. S. 10:1-1; N. J. S. A. 10:1—1, which provides, “The right of citizens of this state to hold office or employment shall be co-extensive with their right to vote, * * *.”

It will be seen from the undisputed facts that the incumbent Bay conforms with the constitutional (New Jersey Constitution, article 2, paragraph 1) and the statutory residential, R. S. 40:11-1; N. J. S. A. 40:11-1, qualifications to hold the office of Borough Councilman.

R. S. 19:31-1.1; N. J. S. A. 19:31-1.1, provides, “after July 1st, 1943, no person shall be permitted to vote in any election in any municipality unless such person is permanently registered.”

Petitioners contend that to be a legal voter within the meaning of R. S. 19:23-15; N. J. S. A. 19:23-15, one must not only have the qualifications of a voter as set forth in the state constitution, but must further be permanently registered in accordance with R. S. 19:31—1.1; N. J. S. A. 19:31—1.1. The incumbent Bay contends that registration is not required to make one a legal voter within the meaning of R. S. 19:23-15; N. J. S. A. 19:23-15.

The right to hold office is a valuable one and its exercise should not be declared prohibited or curtailed except by plain provisions of the law. “* * * Statutes imposing disqualifications are to be construed strictly, while those declaring qualifications are to receive a liberal construction. In consequence, ambiguities are to be resolved in favor of eligibility to office.” 42 Am. Jur. 908. The legislature cannot impose any qualification as to the right to vote in addition to or contrary to the constitutional provisions. Allison v. Blake, 57 N. J. L. 6; 29 Atl. Rep. 417. However, it may impose conditions in respect to the exercise of that right as part of the machinery for voting.

The purpose of requiring voters to register permanently is to protect the purity of the ballot box, by ascertaining before the vote is cast whether or not such persons possess the qualifications to vote and by preventing impersonations thereafter at the polls. In re Faith, 22 N. J. Mis. R. 412; 39 Atl. Rep, (2d) 638; In re Freeholders of Hudson County, 105 N. J. L. 57; 143 Atl. Rep. 536.

In Ransom v. Black, 54 N. J. L. 446 (at p. 461); 24 Atl. Rep. 489, Mr. Justice Dixon, whose opinion was affirmed by the Court of Errors and Appeals in 65 N. J. L. 688; 51 Atl. Rep. 1109, said:

“It must be conceded that legislation is necessary to determine who are legal voters, to provide for them the means of voting, to prevent all others from voting, and to ascertain the result of the vote. All legislation conducive to these ends is, therefore, permissible. It is also clear that by a vote is intended the free and honest expression of the voter’s choice, and hence statutes tending to preserve the voter from coercion or immoral influences are legitimate, provided they do not •impair other rights. Outside of these purposes, I see no room for legislative interference with the right of suffrage.”

Mr. Justice Kaliseh, in upholding the constitutionality of the Election Law relating to registration, said in the case of In re Freeholders of Hudson County, supra:

“A qualified constitutional voter is entitled that his or her vote shall have the effect which the law intended it should have, and this would not be the case unless the ballot box is strictly guarded against illegal voting.

“From an examination of the election law relating to registration it is difficult to perceive how a duly qualified voter is deprived from voting in any ease where he has complied with the regulations prescribed by the legislature concerning the exercise of that right. Of course, if a qualified voter, under the constitution, neglects to obey the prescribed legislative requirements necessary to qualify him as a voter, he has no one to blame but himself if he loses his right to vote. It is his own- act which deprives him from exercising the voting privilege. It is quite clear from the decisions of the courts of this state that though an individual falls within the class of those entitled to vote by virtue of the constitutional declaration, nevertheless, the manner in which and how he shall become entitled to exercise the right extended to-him or her, is left to the sound discretion and wisdom .of the lawmaking power of this state.” (Italics supplied.)

It is to be noted from the above opinion that Mr. Justice Kalisch distinguished between a qualified voter under the constitution and one who shall become entitled to exercise the right to vote pursuant to the registration law. Thus it will be seen that one may bo a qualified or legal voter without exercising the right to vote. Eegistration does not confer the right; but is a condition precedent to the exercise of the right.

Cooley, in his authoritative treatise on Constitutional Limi..tations, volume 2, page 1368 (eighth edition), has set forth the rule which appears to be the philosophy of our courts (In re Freeholders of Hudson County, supra) as follows:

■ "While it is true that the legislature cannot add to the constitutional qualifications of electors, it must, nevertheless, devolve upon that body to establish such regulations as will enable all persons entitled to the privilege to exercise it freely and securely, and exclude all who are not entitled from improper participation therein.

"* * * Under such a regulation, the officers whose duty it is to administer the election laws are enabled to proceed with more deliberation in the discharge of their duties, and to avoid the haste and confusion that must attend the determination upon election day of the various and sometimes difficult questions concerning the right of individuals to exercise this important franchise.

“* * * The provision for a registry deprives no one of his right, but is only a reasonable regulation under which the right may be exercised." (Italics supplied.)

, The source of R. S. 19:23-15; N. J. S. A. 19:23-15, is the 1930 Eevision of the Election Law (Pamph. L. 1930, ch. 187). At the time of the passage of the Election Eevision Law permanent registration was not required throughout the state, but only in certain of the larger municipalities. Election Law, supra, as amended by chapter 174, Pamph. L. 1933; N. J. S. A. 19:31-1. Therefore, it seems to be clear that the legislature intended in R. S. 19:23-15; N. J. S. A. 19:23-15, that a person accepting an endorsement for nomination certify that he was a resident of the jurisdiction in which he was standing for office and a legal voter by virtue of the constitutional declaration and not by virtue of registration, as permanent registration throughout the state did not become effective until July 1st, 1943. R. S. 19:31-1.1;, N. J. S. A. 19:31-1.1.

Petitioners rely on the case of Public Service Electric and Gas Co. v. Camden, 13 N. J. Mis. R. 693; 180 Atl. Rep. 778. In that case a petition was filed with the governing body of the City of Camden, requesting a referendum vote on the question of whether the municipality should construct and operate a plant for the manufacture of electricity. The statute (Pamph. L. 1917, ch. 152) provided for the filing of a petition “signed by at least twenty per cent, of the legal voters of the municipality * * *.” N. J. S. A. 40:62-15. The City of Camden was within the operation of the permanent registration system. Pamph. L. 1930, ch. 187, as-amended by Pamph. L. 1933, ch. 174. It was held that by the term “legal voters” it was meant those constitutionally qualified whose names appeared on the active registration list of the city. However, it was not held that such must be the-meaning of those words in every other statutory provision.. As an example, R. S. 19:31-5; N. J. S. A. 19:31-5, provides that one who has the proper qualifications as to citizenship,, age and residence “to qualify him as a legal voter, shall, * * * be entitled to be registered * * *,” and in R. S. 19:31-1.1; N. J. S. A. 19:31—1.1 (Permanent Eegistration Act) it is provided that in 1943 the election board of each district on the first Tuesday in September enter in the canvassing books the names and residences “of all legal voters-residing in their respective election districts” and make up from the canvassing books a register of voters for use at the-general election. It is obvious that the term “legal voters” used in the above statutes means those who are entitled to vote by virtue of the constitutional declaration. Public Service v. Camden, supra, was not a case involving eligibility to- or qualification for office. It is well within reason to understand why “legal voters” must be registered, as regards the-sufficiency of a petition for submission to the voters of a-proposal to increase the powers of a municipality. Without-resort to the registration list, the governing body, to whom’. the petition is presented, would have no method of ascertaining the identity of the signers and their residences, or their other qualifications or disqualifications. A municipality should not be put to the expense of calling a referendum election unless it is reasonably certain that the persons requesting such an election are eligible to vote on the public question. The only expeditious manner of determining who are eligible to vote is to consult the registry list. That seems to me to be the rationale of Public Service v. Camden, supra. This is a far cry from holding that one must be registered in order to stand for or occupy public office.

Chandler v. Wartman, supra, and Jacobsen v. Gardella, 22 N. J. Mis. R. 277; 38 Atl. Rep. (2d) 126, also relied upon by petitioners, are not in point. In the Chandler case the issue before Mr. Justice Parker was whether or not the incumbent was a citizen of the United States at the time of the election. In the Jacobsen case Judge Kinkead found that the incumbent was not a resident of the municipality in which he was elected in contravention of R. S. 40:11-1; N. J. S. A. 40:11-1.

In the present ease the incumbent Bay was elected by a vote of the people. He should not be prevented from taking his seat as councilman, unless clearly ineligible under some constitutional or statutory provision. The language of R. S. 19:23-15; N. J. S. A. 19 :23-15, in requiring a person accepting the endorsement for nomination to stand for office to certify that he is a legal voter, is not sufficiently explicit to show a legislative intent to deprive a person otherwise qualified from the right to hold a public office because he is not a registered voter. It is my opinion that the legislature, in employing the term ‘legal voter” in the above section, meant to refer to those qualities which must exist, in sum, to make of him a voter, as conferring on him the right to be placed among the class of persons which the constitution of our state creates and declares voters. When the legislature passed the Permanent Begistration Law, it is my belief it did not intend to alter the qualifications of one seeking public office. The latter law refers to the idea of a recording of the fact that a person has given proper evidence of the existence of the qualities which constitute him a legal voter. The election laws were never intended to set forth qualifications of office holders. Their requirements that one be a resident and legal voter are merely declaratory of the law as declared in other statutory provisions. R. S. 40:11—1; R. S. 10:1—1; N. J. S. A. 40:11-1; N. J. S. A. 10:1-1; Chandler v. Wartman, supra.

I have been unable to find any case in this state construing R. S. 19:23-15; N. J. S. A. 19:23-15. However, my view appears to be in accord with judicial interpretations of similar statutes in other jurisdictions. Gilbert v. Breithaupt (1940), 60 Nev. 162; 104 Pac. Rep. (2d) 183; 128 A. L. R. 1111, and supplementary note.

I have entertained the present petition, settling for immediate purposes and as a part of the electoral process the right to the office of councilman of the Borough of Paulsboro, without bar to further judicial inquiry by quo warranto. See Conger v. Convery, 52 N. J. L. 417 (at p. 444); 20 Atl. Rep. 166; affirmed, 53 N. J. L. 658; 24 Atl. Rep. 1002.

The judgment is that the said George B. Bay was eligible to the office of Borough Councilman of the Borough of Paulsboro on the day of said election, and his acceptance of the endorsement for nomination was not false and defective, and that he was duly elected to said office; and further that the said George L. Brown was not elected to said office; and further that the said office of Borough Councilman of the Borough of Paulsboro is not vacant.


author: Leyden, C. C. J.

text:
    Bergen County Circuit Court.
    JOHN T. EVANS, PLAINTIFF, v. EDWARD J. MARTIN, DEFENDANT.
    Decided January 6, 1948.
    Bor the plaintiff, Major & Carlson.

    Box the defendant, Arthur A. Donigan.

   Leyden, C. C. J.

The plaintiff and his wife are the owners of their home as co-tenants by the entirety. The house has five rooms and a bath. The defendant, Martin, is the son of Mrs. Evans by a prior marriage and has lived with his mother all of the twenty-five years of his life. Presently he occupies the front bedroom on the second floor with the asserted privilege of using the remainder of the house and grounds except the rear bedroom. Marital difficulties have arisen between Mr. and Mrs. Evans and the plaintiff has ordered defendant to vacate the room and establish himself elsewhere. He refuses to leave, hence this ejectment suit.

The complaint is in the usual form and the amended answer denies the truth of the matters contained therein and sets up a separate defense (see S. C. R. 185) that defendant is a tenant of Mrs. Evans and plaintiff. The motion is to strike the denial as sham and the defense as insufficient in law.

The answering affidavits of defendant and Mrs. Evans demonstrate beyond question that the relation of landlord and tenant does not exist and at best the defendant is merely a boarder paying $15 per week to Mrs. Evans for his room and meals. Mr. Evans’ consent to this arrangement, if ever given, has been long since revoked. The situation presented is not unlike that in Chapman v. Mitchell, 23 N. J. Mis. R. 358; 44 Atl. Rep. (2d) 392, except that there the strangers were a handyman and granddaughter and no board was paid.

• The matter resolves itself into the question: can one co-tenant assign a room to a boarder against the will of the other co-tenant and thus deprive him of his right to full possession of the entire property ?

- We start with the proposition that in an estate by entireties the seizen of the husband and wife during their joint lives is essentially a tenancy in common, terminated on the death of either, with remainder in fee to the survivor. Schulz v. Ziegler, 80 N. J. Eq. 199; 83 Atl. Rep. 968. The fact that the property was paid for by the wife out of her own funds and her husband’s interest therein was a gift from her, as is urged in the answering affidavits, is of no moment. Neubeck v. Neubeck, 94 N. J. Eq. 167; 119 Atl. Rep. 26.

A tenant in common has the right to the full possession of all the property held in co-tenancy except only as it is limited by the equal right of his co-tenant. Neither co-tenant has the right of exclusive possession of any portion of the common property. Hence Mrs. Evans may not deprive the plaintiff of. possession of a portion of the property through the instrumentality of a boarder without his consent.

. The plaintiff has the right to full possession of the common property as against all- the world save his wife. Kleinfeld v. The General Auto Sales Co., 118 N. J. L. 67; 191 Atl. Rep. 460. The defendant as a boarder is a stranger to the title and. right to possession and as such cannot defend as against the plaintiff. His denial of the truth of the matter alleged in the complaint is sham and his separate defense is insufficient. The answer will be stricken.


author: Ebancis, A. M.

text:
    Madeleine L. Savoie, petitioner, v. Edward I. Savoie, defendant.
    [Decided December 16th, 1947.]

      Mr. Paul M. Strade, for the petitioner.

      Mr. Julius P. Litwade, for the defendant.
   Ebancis, A. M.

This matter is before me on defendant’s application to vacate so much of an order dated July 29th, 1947, as required him to pay to petitioner arrears of alimony installments totaling $415. The ground for the application is that petitioner remarried on August 16th, 1947, eighteen days after the execution of the order.

A decree nisi was entered between these parties on March 27th, 1947. At this time the defendant was in arrears under a pendente lite alimony order in the sum of $115. By thg decree he was directed to pay this amount to petitioner. In addition Mrs. Savoie was awarded $30 weekly as alimony.

Defendant disregarded both provisions thereof and the direction for payment of counsel fees and costs and he was cited to appear in contempt proceedings on June 23d, 1947. At this time both parties were represented by counsel and the matter was argued. It was conceded that he owed $879.42, represented by the $115 to which reference has been made, ten weeks alimony amounting to $300, and counsel fees and costs in the sum of $464.42. Ho justifiable reason for his failure was given and he was adjudged in contempt. However he was granted permission to purge himself of his contumacy by paying $300 a month until the full obligation was satisfied.

On July 29th, 1947, an order was entered adjudging Savoie in contempt, specifically fixing the total sum of his arrearages at $879.42 and directing him to make payment thereof on the basis above set forth. He complied with the order to the extent of part of the counsel fees and costs, but did not pay the amount representing the accrued and fixed alimony arrearages.

Then, on learning of petitioner’s remarriage, the pending application was filed.

In support of the application, defendant refers to R. S. 2:50-38; N. J. S. A. 2:50-38, which provides as follows:

“If after the decree of divorce the wife shall remarry, the Court of Chancery shall not mate any order touching the alimony of such wife except that the Court of Chancery, upon application of the former husband, on notice and upon proof of the marriage of the former wife after the decree of divorce, must modify any order touching the alimony of the former wife by vacating such order or decree, or both, directing the payment of money for the support of the former wife.”

The language of this enactment is very broad. It forbids the making of “any order touching the alimony of such wife” and it imposes on the court a mandatory duty to vacate and annul “any and all provisions in any such order or decree directing the payment of money for the support of the former wife.” By necessary implication, cancellation of arrearages is included in the broad sweep of the statute. This is so because before arrearages can be ripened into the form necessary for execution purposes an order of the court is required. Such an order fixes the lump sum of the arrearages and upon application- therefor, a writ of execution may be issued to collect that sum. If contempt proceedings are pursued, again, an order of the court is required, fixing the full sum of the default and either committing the defendant to jail until payment is made, or directing payment in some other fashion, such as by installments. Since no order can be made after the remarriage, obviously there can be no judicial determination of a single lump sum due under the order or decree involved.

By way of dictum in Hougland v. Hougland, 19 N. J. Mis. R. 474; 21 Atl. Rep. (2d) 215, Advisory Master Herr declared that the “intent of the statute is to prevent a wife who has remarried from securing arrearages of alimony and to preclude her from seeking to hold her husband in contempt for non-payment thereof.” In Madden v. Madden, 136 N. J. Eq. 132; 40 Atl. Rep. (2d) 611, where the question of the affect of remarriage on arrearages was directly in issue, he reiterated his earlier view, saying:

“The statute forbids the making of any order Touching the alimony/ which, of course, includes orders for the fixing of the amount of the arrearages, orders in contempt and all other orders intended to enforce collection * * *.”

On appeal there was an affirmance by the Court of Errors and Appeals, which adopted Advisory Master Herr’s opinion, 136 N. J. Eq. 132; 40 Atl. Rep. (2d) 611.

There is one essential difference between the Madden Case and the one before me. In that case, while Madden was cited .in contempt for alimony delinquencies which arose prior to his former wife’s remarriage, he was never actually adjudged in contempt nor was any order entered fixing the amount of the arrearages. Although it was said there that the language of the statute “clearly indicates the legislative intent that remarriage puts an end to all the husband’s obligations,” the court intimated farther on in the opinion that it did not intend such an all conclusive statement. It was indicated that if, previous to the remarriage the sum of the arrearage had been fixed by order of the court, that sum would have taken on the attributes of a judgment. In this respect the opinion says:

“Arrearages do not become vested or take attributes of a judgment for payment of a fixed sum until Chancery so orders. Ho such order was made in this case.”

It seems to follow,'therefore, as a logical inference that if, in the Madden Case, an order had been entered prior to the remarriage, fixing the sum of the arrearages, those arrearages would have been transmuted into a judgment which would not be cancellable within the mandate of the statute.

In the present case the order of July 29th, 1947, determined and fixed with finality the sum due to petitioner and it adjudged defendant in contempt for failure to have paid the weekly sums which composed it. However, the form of the order which directed that he purge himself of his contempt by the payment of monthly installments of $300 raises the problem of whether or not some further order of the court is not contemplated or required in the event that the defendant failed to purge himself as directed. In other words, if the defendant failed to pay any installment, the Chancellor would have to issue a warrant for his commitment. If, as .here,.some of the installments had been paid, an order fixing the balance due would have to be executed and then the warrant issued committing him until that sum was paid. Does the fact that some further order may have to be made in order to accomplish the collection of the sum declared due, impose upon the court, whose decree has been flouted, the duty to cancel the offender’s indebtedness? In a ease such as this, I think not.

The provision in the order, adjudging Savoie in contempt, for satisfaction of the sum of $879.42 in monthly installments, had no effect upon the fixed and' final character of lis liability. That sum became vested with all the attributes «f a judgment, Rooney v. Rooney, 102 N. J. L. 551; 133 Atl. Rep. 752; Lynde v. Lynde, 181 U. S. 183; 21 S. Ct. 555; Second National Bank v. Blauvelt, 44 N. J. Eq. 173; 14 Atl. Rep. 618; R. S. 2:29-57, and an abstract of the order could have been docketed in the Supreme Court as a judgment, R. S. 2:29-57, 58. Only the method of payment was affected.

There are several methods of enforcing payment of a sum fixed by a decree of this kind. One is by writ of execution, another is by attachment in contempt. If, for example, a writ of execution had been issued on this decree and the defendant had agreed to satisfy it by installment payments, but the remarriage had occurred before the full amount was paid, it seems certain that the statute would not require the vacation of the writ. I cannot bring myself to the point of declaring that an order of the court in contempt proceedings for installment payments is any less efficacious than the writ of execution as a means of enforcing payment.

Beyond these considerations all the equities in the situation are with Mrs. Savoie. This defendant willfully disobeyed the order and the decree of this court. He was in default under the pendente Hie order and under the decree nisi. He was at all times financially capable of discharging the obligations imposed upon him. As a matter of fact, when he should have been paying alimony, he was enjoying a Florida vacation. If such a person can mock the decree and then, because of the fortuitous circumstance (for him) of his former wife’s remarriage, avoid the legitimate consequences of his contumacy, then the power and prestige of the court have come upon a serious state of decadence. It cannot be that the legislature intended any such result to flow from the statute. Hnder the circumstances, the petition to vacate the portion of the order of July 29th, 1947, which Axes the liability for the alimony arrearages will be denied. An order may be entered discharging the defendant from all further obligation to pay alimony subsequent to August 16th, 1947, the date of his former wife’s remarriage.


author: Labbecque, Commission!®.

text:
    Division of Tax Appeals.
    BOROUGH OF NORTH ARLINGTON, PETITIONER, v. RIVERVIEW GARDENS, SECTION ONE, INCORPORATED, RESPONDENT. BOROUGH OF NORTH ARLINGTON, PETITIONER, v. RIVERVIEW GARDENS, SECTION TWO, INCORPORATED, RESPONDENT. For the Year 1946.
    Decided January 6, 1948.

      For the petitioner, Bruch & Bigel.

    For the respondent, Charles Rubensiein.

   Labbecque, Commission!®.

The above two eases were argued, together by consent.

Eiverview Gardens, Section One, Incorporated, is the owner of certain property situated in the Borough of North Arlington, consisting of a garden-type apartment development. Eiverview Gardens, Section Two, Incorporated, is the owner of a similar development in the same municipality. For the year 1946, the properties were assessed at two hundred twenty-four thousand seven hundred fifty ($224,750) dollars and three hundred seventy-two thousand seven hundred fifty ($372,750) dollars, respectively. On or about August 7th, 1946, the Borough of North Arlington filed petitions of appeal to the Bergen County Board of Taxation, seeking an increase in the assessment on the improvement in each case.

On October 2d, 1946, the two cases came on for hearing before the county board, which entered judgment dismissing each appeal and affirming the assessments. From the actions of the county board in so doing, the municipality has filed the present appeals with us.

The taxpayer now moves to dismiss both appeals on the ground that we are without jurisdiction to hear the same.

It is first urged that we are without jurisdiction for the reason that the municipality failed to file its petition of appeal in each ease within the time limited by law (Pamph. L. 1946, ch. 161; rule 5 of the Division of Tax Appeals). The facts adduced in support of this contention are briefly these; on October 2d, 1946, the municipality’s appeals came on for hearing before the county board and in the presence of counsel for the respective parties, the board announced its dismissal of the appeals and adopted a resolution to that effect. Thereafter, the petitions of appeal to us were not filed until November 8th.

On its part, the municipality urges that the time to appeal did not begin to run until the date of publication of the entry of the judgments of the county board, that it did not receive notice of the entry of such judgments until October 31st, 1946, and that hence, the appeal was filed within time.

An examination of the applicable statutes bears out the municipality’s contention on this score. Pamph. L. 1946, ch. 161, § 8 (R. S. 54:2-39; N. J. S. A. 54:2-39), as amended provides as follows:

“Any 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 in the State Department of Taxation and Finance by filing a petition of appeal to the division, in manner and form to be by said division prescribed, within one month from the date on which the county board of taxation shall have published the entry of judgment or within one month from the date fixed for final decisions by the county boards, whichever date shall be earlier.”

It is to be noted that the legislature thus provided that the time for appeal should begin to run, not from the date of the judgment of the county board, but from the date of publication of the “entry of such judgment.”

In determining the meaning of the latter provision, recourse must again be had to chapter 161 of the laws of 1946. Section 18 of that statute, R. S. 54:3-26; N. J. S. A. 54:3-26, as amended, provides as follows:

“The county board of taxation shall hear and determine all such appeals within three months after the last day for filing such appeals, and shall keep a record of its judgment thereon irt permanent form, and shall transmit a memorandum of its judgment to the taxpayer, and in all cases where the amount of tax to be paid shall be changed as a result of an appeal, to the collector of the taxing district.”

It is undisputed that notices of the county board’s action, which were dated October 10th, were mailed to the attorney for the municipality and to the municipal collector on October 30th. Ho evidence is produced that the notices mailed to the taxpayers bore a different date or that they were mailed to them any sooner. We conclude, therefore, that the municipality’s appeals were filed within time.

It is next urged that the petitions of appeal to us should be dismissed for the reason that the municipality in its petitions of appeal to the county board failed to charge that it was discriminated against. It is also urged that there was no official action by the municipal governing body finding that the Borough was discriminated against and authorizing the filing of the appeal on this ground.

The rule is well settled that a municipality may appeal to the County Board of Taxation only when it feels discriminated against. This discrimination may involve the assessed valuation of property in the district itself or in another taxing district in the county. R. S. 54:3-21; N. J. S. A. 54:3-21. In re Jersey City, 23 N. J. Mis. R. 311; 44 Atl. Rep. (2d) 189. The power to increase valuations of property for the purposes of taxation being statutory, must be exercised in strict compliance with the statute conferring jurisdiction. Englewood v. Hopper, 54 N. J. L. 544; 23 Atl. Rep. 948. It was therefore necessary, in order to confer jurisdiction upon the county board, that the municipality charge in its petitions of appeal that it was discriminated against. In re Jersey City, 24 N. J. Mis. R. 315; 49 Atl. Rep. (2d) 26.

The petition of appeal filed with the county board in each of the cases sub judice failed to charge or allege discrimination against the municipality. In the absence of such an allegation, the county board was without power to hear the appeals. If the county board was not vested with jurisdiction to hear the appeals, neither are we. Oradell v. State Board of Tax Appeals, 125 N. J. L. 37; 13 Atl. Rep. (2d) 479. And this is so, notwithstanding that the question of jurisdiction may not have been raised before the county board. McMichael v. Horay, 90 N. J. L. 142; 100 Atl. Rep. 205, and In re Jersey City, 23 N. J. Mis. R. 311; 44 Atl. Rep. (2d) 189. The evidence before us likewise indicates that the resolution authorizing the taking of the appeal, and dated August 6th, 1946, likewise failed to allege discrimination. A second resolution, dated November 6th, 1946, was ineffective to correct this omission.

Since the county board was without jurisdiction to hear the appeals in the first instance, they should have been dismissed. It follows that the appeals filed by the municipality to this Division must likewise be dismissed.

The conclusion reached renders it unnecessary to consider the remaining grounds urged in support of the motion.

The motion is granted, and in each ease, the action of the county board is affirmed, and the petition of appeal dismissed.


author: Cojotlin, Comwisstonek.

text:
    Division of Tax Appeals.
    IN THE MATTER OF THE APPEAL OF WALTER P. GARDNER, TRUSTEE OF THE PROPERTY OF THE CENTRAL RAILROAD COMPANY OF NEW JERSEY, FROM THE ASSESSMENT OF THE FRANCHISE EXCISE TAX MADE BY THE DIRECTOR, DIVISION OF TAXATION, DEPARTMENT OF TAXATION AND FINANCE OF THE STATE OF NEW JERSEY, AGAINST THE CENTRAL RAILROAD COMPANY OF NEW JERSEY FOR THE YEAR 1946.
    Decided January 6, 1948.

      For Walter P. Gardner, trustee of the property of the Central Railroad Company of New Jersey, James D. Carpenter.

    For the State of New Jersey, Walter T>. Van Riper, Attorney-General, and Benjamin C. Van Tine and Benjamin M. Taub.

   Cojotlin, Comwisstonek.

Walter P. Gardner, as the trustee of the Central Railroad Company of New Jersey, appeals from the franchise excise tax as found by the Director of the Division of Taxation of the Department of Taxation and Finance against the Central Railroad Company of New Jersey for the year 1946. The basis of the appeal is the disallowance by the Director of certain deductions claimed by the railroad.

An accurate determination of the railroad’s net operating income is a prerequisite in determining the franchise excise tax, as chapter 291 of the laws of 1941 provides in section 14, as amended by chapter 169 of the laws of 1942, R. S. 54.-29A-14; N. J. S. A. 54:29A-14:

“For the purpose of this section, net railway operating income shall be computed as total railway operating revenues from all sources, including any revenue whatever derived directly or indirectly from property which is used for railroad purposes, less costs of railroad maintenance, operation and depreciation, railway tax accruals, uncollectible railway revenues, rentals (both debits and credits) for equipment leased for less than one year or interchanged, and joint facility rents (both debits and credits), and the amount remaining shall constitute the net railway operating income hereinafter mentioned. Deductions from operating revenues for depreciation, additions and betterments, and compensation for personal services shall be subject to regulation by the Commissioner, as to reasonableness of' amount and appropriateness of accounting distribution. Depreciation charges shall in no instance, however, exceed the amount claimed by the railroad for depreciation in its report or reports to the Interstate Commerce Commission and fixed, or if none was claimed then as-fixed, by the Interstate Commerce Commission in determining-the net railway operating income of the railroad for the year-under consideration.”

Thus, in computing the franchise excise tax for the year-of 1946, the net railway operating income of the year of 1945 was used. This was determined by the -Director to be-$2,323,265, while the railroad claims it to be $145,394. The-difference arises from three items which were deducted in the railroad’s report to the Interstate Commerce Commission as-tax accruals with that body’s authorization, and'which report, was filed with the Director as a statement of income for 1945.. The Director disapproved as deductions for the year 1945 of accruals for interest on delinquent taxes in the sum of' $494,349, accruals for 1941 reassessment of taxes in the sum of $1,151,145, and interest accruals on the 1941 assessment, in the amount of $532,422; which makes a total of $2,177,916.. The railroad holds that by disallowing the tax accruals the-Director made an addition and increased the net railway operating income without statutory authority. If the deductions were allowed, the franchise excise tax of the Central Eailroad would be $4,000 and not $422,769 as found by the-Director.

In 1945, the Supreme Court held in Jersey City v. State Board of Tax Appeals, 133 N. J. L. 202; 43 Atl. Rep. (2d) 799, that the Railroad Tax Law of 1941 (laws of 1941, chapter 291, as amended by Pamph. L. 1942, eh. 169), was unconstitutional as it applied to taxes due from the railroads to-the state for the tax year of 1941. When this occurred, the-railroad, to avoid additional interest charges of one per cent.. a month, filed a petition in the United States District Court and sought authority to make a payment in addition to taxes already paid in the sum of the difference of the original 1941' tax assessment, and prayed that payment was to be without: prejudice to recover overpayment to the State of New Jersey. or receive credit on future state taxes, in the event that the Supreme Court should be overruled and the act be declared constitutional as to the year 1941. In 1946, prior to the assessment by the Director for the franchise excise tax for the year 1946, this case was decided by the Court of Errors and Appeals, and known as Jersey City v. Kelly, reported in 134 N. J. L. 239; 47 Atl. Rep. (2d) 354. It overruled the Supreme Court and held that the Railway Tax Law of 1941 was constitutional. The amount paid by the railroad of $1,151,145 on its additional 1941 taxes was never due and payable, which was determined by the determination of Jersey City v. Kelly, supra, and never being due and payable it cannot be claimed as a valid deduction for tax accruals. If it had been finally determined to be due and payable it could have been claimed only as a deduction in the year for which it was paid. Norton v. State Board of Tax Appeals, 134 N. J. L. 57; 45 Atl. Rep. (2d) 799.

As to all three items, including interest, there is no doubt that the Interstate Commerce Commission specifically authorized the deduction for the year of 1945 of the tax accruals as claimed by the raliroad.

In the opinion filed on November 25th, 1947, in the case of Delaware, Lackawanna and Western Railroad System, 26 N. J. Mis. R. 19; 55 Atl. Rep. (2d) 656, in its appeal from the assessment and reassessment of the franchise tax levied against it for the years 1942, 1943, 1944, 1945 and 1946, we discussed in length and in detail as to when railway tax accruals are due and payable, as determined by the Interstate Commerce Commission, and as determined by the DivL sion of Tax Appeals and the courts of New Jersey under our statutes. We came to the conclusion that railway tax accruals shall be allowed for the year in which they are assessed.

To hold that the Director is bound by a report to the Interstate Commerce Commission, and must accept this report as a true statement of the net operating railway income would be to hold that the Director would be bound by any act or change in rules of the Interstate Commerce Commission, even though it would be patent to the Director that he should disallow as a tax accrual the item claimed. With this we cannot agree for the reasons set forth in In the Matter of the Appeals of the Delaware, Lackawanna and Western Railroad System, et al., 24 N. J. Mis. R. 205; 47 Atl. Rep. (2d) 830; Norton v. State Board of Tax Appeals, supra. Nor can we agree that he is in eifect increasing the net railway operating income of the railroad by excepting to deductions claimed, as his action in determining the income is for the purpose of the tax and is peculiarly within his province as a tax official of the State of New Jersey. As stated before, had the decision in Jersey City v. Kelly, supra, been one wherein the Supreme Court was affirmed and the Railroad Tax Law been declared unconstitutional, then the Director, under R. S. 54:29A—25; N. J. S. A. 54:29A-25, would have had the duty to reassess. It provides:

“A. Whenever the Commissioner shall determine that any tax or taxes assessed pursuant to this act were 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.”

Apparently it was the intention of the legislature that the Director had the right to scrutinize the return and if it was erroneous, to reassess. This right to examine the return exists at the time' it is filed and before the assessment is made. We feel that' he acted properly in this case.

The appeal of the Central Railroad for the year 1946 is hereby dismissed.