author: Conklin, Commissioned Waesche, Pbesikrnt.

text:
    Division of Tax Appeals.
    PENNSYLVANIA RAILROAD SYSTEM, PETITIONER, v. FRANK E. WALSH, DIRECTOR OF THE DIVISION OF TAXATION, RESPONDENT. THE CITY OF JERSEY CITY, PETITIONER, v. FRANK E. WALSH, DIRECTOR OF THE DIVISION OF TAXATION AND PENNSYLVANIA RAILROAD SYSTEM, PENNSYLVANIA RAILROAD COMPANY, NEW YORK BAY RAILROAD COMPANY, UNITED NEW JERSEY RAILROAD AND CANAL COMPANY, RESPONDENTS. THE CITY OF HOBOKEN, PETITIONER, v. FRANK E. WALSH, DIRECTOR OF THE DIVISION OF TAXATION AND PENNSYLVANIA RAILROAD SYSTEM, RESPONDENTS. .
    Decided April 22, 1947.
    Dor the Pennsylvania Railroad System, Wall, Haight, Carey <& Hartpence (John Hartpence, of counsel).
    Dor the City, of Jersey City, Charles Rooney {Joseph C. Glavim, of counsel).
    Dor the City of Hoboken, John J. Fallon {Frank P. McCarthy, of counsel).
    Dor the State of Hew Jersey, Walter JD. Van Riper, Attorney-General, and Benjamin C. Van Tine and Benjamin Taub, Deputy Attorneys-General.
   Conklin, Commissioned

These appeals involve the assessment of the property of the Pennsylvania Railroad System for the year 1945, which system operates as lessee other railroads that appear herein as respondents; to wit, the Pennsylvania Eailroad Company, New York Bay Eailroad Company, and United New Jersey Eailroad and Canal Company. The Pennsylvania Eailroad System filed a complaint seeking a reduction in the assessments made by the Director of Taxation. Complaints were filed by the cities of Jersey City and Hoboken seeking increases in these assessments. Other appeals involving railroads for the year 1945 have been determined by this Division and opinions have been written and filed. The instant complaints involve the same common questions of law and fact as previously determined.

Por the reasons set forth in the opinions filed in the cases of Pitney v. Walsh, 25 N. J. Mis. R. 196; 51 Atl. Rep. (2d) 871; Delaware, Lackawanna and Western Railroad v. Walsh, 25 N. J. Mis. R. 272; 52 Atl. Rep. (2d) , and Erie Railroad v. Walsh, 25 N. J. Mis. R. 269; 52 Atl. Rep. (2d) , the appeals of the Pennsylvania Eailroad System and the City of Hoboken are hereby dismissed.

Proofs were adduced as to the true value of the railroad property by both the railroad and the municipalities. In most instances the railroad’s proof of true value was lower than the assessment made by the Director of Taxation and in all instances the proof of true value by the city’s witnesses was greater than the assessment made by the Director. However, as to certain parcels hereinafter described, the railroad offered proof of true value which was less than that placed upon it by the city’s experts but substantially larger than the assessment made.

The good faith of the Director of Taxation and the validity of his actions are presumed, and when they are assailed the burden of proof is upon the complaining party. Central Railroad Company of New Jersey v. State Tax Department, 112 N. J. L. 5; 169 Atl. Rep. 489. In the case of New Jersey Bell Telephone Co. v. Camden, 122 N. J. L. 270; 4 Atl. Rep. (2d) 705, 708, the court commented, in referring to this presumption, as follows:

“Just how far that presumption will carry has not been determined in our courts, but in our opinion it will not stand up against uncontradicted evidence contrary to the presumption.”

In all the cases heretofore decided in the 1945 railroad assessments there were proofs as to true value which were offered by the railroads to show that the properties were over-assessed and proofs offered by the municipalities to show that they were under-assessed. In the instant case, however, the proofs submitted by both Jersey City, seeking increases, and the railroad opposing the requested increases, indicate that certain properties were not assessed at true value, but were under-assessed. Common sense and good logic compel us to take cognizance of the fact that the parties in interest concur that the assessment is too low, and therefore the judgment of this Division in regard to the appeal of the City of Jersey City as it applies to property owned by the New York Bay Railroad Company and the United New Jersey Railroad and Canal Company is that the appeal be granted to increase the property to true value as follows:

True
Property , Assessment Value
New 7orle Bay Railroad Co.
Sidings outside main stem (in ballast) 488,285 ft...................... $686,634 $900,213
Sidings outside main stem on trestle (11,232 ft.) .................... 5,707 16,669
Greenville sub-station .............. 70,658 73,502
Track scales and office, cap. 150 tons.. 5,250 7,665
Grain elevator, cap. 200,000 bushels. .. 75,000 85,822
Electric power and lighting plant and fixed machinery/ brick 74'x89'..... 46,855 56,200
Five transfer bridges .............. 484,175 535,524
United New Jersey Railroad and Canal Co.
Brick drains at Marion (Shanley’s cut) 8,246 11,157
Sidings outside main stem (in ballast) 82,932 ft....................... 125,615 139,326
Passenger station and shelters, Journal Square ........................ 412,515 439,838
True
Property Assessment Value
Sub-station, Journal Square ........ 198,103 199,688
Terminal passenger stations, platforms, and umbrella shelters and station enclosure ...................... 41,000 45,999
United New Jersey Railroad and Canal Co.—Harsimus Branch
Sidings outside main stem (in ballast) 162,873 ft..................... 247,324 273,626
Pier “P” and shed thereon 160'x915'.. 1,003,400 1,016,557
Preight transfer bridges No. 4 and No. 3 and fixed machinery ........... 19,370 35,176
Pier “L” and shed thereon 177'xl365' 245,327 408,217
Preight transfer bridges No. 5 and No. 6 and fixed machinery............ 29,321 55,107
Pier “M” (Coal Dock) ............ 121,348 185,779
Ploat yard, between Pier “M” and stock yards, 162'xl240'........... 339,421 423,183
Gantry crane, 5th and Henderson Sts., capacity 25 tons................ 8,050 10,332
Yardmaster’s office, brick, Henderson Si, 30'x65'................... 16,000 16,965

In its complaint, the City of Jersey City sought a reclassification of certain railroad property from main stem to second class, but the Division took no proofs on this feature of the case, and therefore this opinion does not deal with the question as it remains upon our calendar to be heard.

Judgments have been entered in accordance with the foregoing conclusions.

Waesche, Pbesikrnt.

(Dissenting.) The valuation assessments here under review were levied for the year 1945 on property in railroad use. These assessments as finally fixed and determined by the Division of Tax Appeals should be at the true value of the property assessed (N. J. S. A. 54:29A-7 to 54:29A-17; Pamph. L. 1941, ch. 291; Pamph. L. 1942, ch. 337). The property involved in these assessments, which property consists of both land and structures, is located in Jersey City, and is owned and used by railroads operating within the Pennsylvania Railroad System. The 1943 and the 1944 assessments which were levied on the same property were also appealed to the State Board of Tax Appeals. By stipulation, the testimony taken in the appeals from those assessments and also the exhibits are included in the record of the appeals from the 1945 assessments.

The structures in this appeal consist of railroad tracks (rails, ties, ballast, etc.), railroad stations, including shelters and offices, transfer bridges, piers, machinery and other structures and equipment, all of which were especially designed and erected for railroad use. They are not suitable for any other purpose, and they have no market value. They are constituent parts of a railroad.

Jersey City appealed from the assessments on the land and on the structures. The city contends that the assessments are insufficient, i. e., that they are below the true value of the property assessed. The Pennsylvania Railroad appealed only from the assessments on the land. The railroad contends that the assessments on the land are excessive, i. e./that they are above true value. The railroad resists Jersey City’s contention that the assessments on the structures are too low. The Attorney-General, on behalf of the state, contends that the assessments are neither too high nor too low, but that they correctly represent the true value of the property assessed. He seeks to maintain the assessments at the amounts levied by the Director of the Division of Taxation.

The Division of Tax Appeals dismissed the railroad’s appeal. I disagreed with this action because, in my opinion, some of the assessments on land are excessive. The Division dismissed Jersey City’s appeal from the assessments on land and also from the assessments on some of the structures, but it increased the assessments on twenty-one structures. I disagreed with this action because, in my opinion, it was not made to appear that any assessment on structures was insufficient.

The Division of Tax Appeals is required to hear any complaint filed by a taxpayer or a taxing district as to the amount of any assessment. "If it shall be made to appear upon such hearing that any such assessment” is excessive or insufficient, the Division is required to correct and adjust the assessment (N. J. S. A. 54:29A-33; Pamph. L. 1942, ch. 337). To correct or adjust an assessment means to make it conform to the true value of the property assessed, as required by the constitution and the statutes.

Taxation is the taking by government of privately owned property. The Division of Tax Appeals is in the executive branch of the government, the branch whose function is to administer and enforce the tax laws as written and as interpreted by the courts. The legislature created the Division of Tax Appeals to insure strict compliance with the constitutional and statutory requirement that property shall be assessed for taxation by uniform rules at its true value, so that the people of our state may be assured of the faithful observance of these principles, and so that their property may be secured from an unlawful taking under the guise of taxation. Therefore, no excuse, no matter how skillfully it may be dressed in legal dialectics, will suffice to acquit this Division of blame for fixing an assessment at either more or less than the true value of the property asssessed if the evidence of its true value is available. We are obligated by law to make all assessments brought to us by appeal conform to the true value of the property assessed—no less, no more. We are permitted to change an assessment only when it is “made to appear” excessive or insufficient. This Division is not a corridor down which a taxpayer may escape from a just assessment and a fair share of the tax burden; neither is it an alley from which to ambush a taxpayer and take a pound of his flesh. Our task is to make sure that assessments are justly levied. Justinian said in the ancient Eoman Law, over a thousand years ago.

“Justice is the constant and enduring will to give to every man his right.”

At the hearing of the 1944 appeal, Jersey City produced as a witness Hugh Phillips, who testified on September 19th, 1944, as to the value of structures. He is a civil engineer, and had some experience in the construction and maintenance of railroad property. He had no experience in-the operation of a railroad. His testimony in the 1944 appeal is stipulated as a part of the record in this appeal. He valued the structures by estimating the cost to reproduce them new as of the assessing date, and deducting therefrom a percentage of such cost for physical depreciation, which percentage he determined from an inspection of the property. The resulting estimate was, in his opinion, the true value of the structures. He said, that there was no depreciation for obsolescence in any of the structures. Phillips also testified in the 1945 appeals, and valued the structures in the same manner; but, from the estimated cost of reproduction new, he deducted for physical depreciation a larger amount than he had in the 1944 appeal because of the additional year of age and consequent physical change in the structure.

The Pennsylvania Kailroad produced James M. Cleminshaw as a witness on the value of structures in the 1944 appeal. He testified on September 20th, 1944, to overcome the testimony given the previous day by Phillips in the 1944 appeal. Cleminshaw is an expert appraiser of land, buildings, fixed machinery, and equipment. He had no experience in designing, erecting, or maintaining structures for railroad use. He had no experience in the operation of a railroad.' He estimated the cost to reproduce the structures new as of *the assessing date, and then depreciated that figure for physical deterioration and obsolescence. His testimony in the 1944 appeal is stipulated as a part of the record in this appeal, but he did not testify in the 1945 appeal. Moreover, Oleminshaw’s estimates to reproduce the structures new given in the 1944 appeal should be considered as a challenge to the accuracy of Phillips’ estimates, and not literally taken as the touchstone of true value just because his testimony was offered by the railroad.

The Attorney-General produced Henry L. Pryer as a witness on behalf of the state to testify on the value of structures in the 1944 appeal. He testified on October 6th, 1944, after he had listened to the testimony of both Phillips and Cleminshaw.

Mr. Fryer is a civil engineer. Between 1902 and 1904 he worked for the Baltimore and Ohio Railroad, Pennsylvania Railroad, and Norfolk and Western Railroad on construction and maintenance of railroad structures. From 1904 to the present time he has been employed by the State of New Jersey in the valuation of railroad property for the purposes of taxation. From 1940 to June, 1944, he had charge, under Mr. Focht, of the valuation of all railroad property in New Jersey. He succeeded Mr. Focht upon his death in June, 1944.

Mr. Fryer testified that in his opinion the value of the structures as assessed for the year 1945 by the Director of the Division of Taxation represented their true value. He said that the true or assessed value of the structures was arrived at by the same method that Mr. Focht used to determine true value. The Director of the Division of Taxation also testified that the method Mr. Focht used for determining the true value of property in railroad use was the same method used by him for determining the true value of railroad property for the 1945 assessments.

Mr. Louis Focht was a graduate engineer from Lehigh Hniversity. From 1883 to 1897 he was employed in the ■engineering department of the Lehigh Valley Railroad Company, and during the last ten years of that time he was Division Engineer in charge of construction and maintenance on the New Jersey, Lehigh, and Pottsville Divisions. He ■designed and constructed almost every type of railroad structure : bridges, round-houses, stations, tunnels, tracks, elevators, &c. In May, 1898, he was employed by the State of New Jersey as engineer in charge of the valuation of all the physical property of the railroads in New Jersey. He continued in that position until the time of his death.

Mr. Focht appeared as a witness on behalf of the state at the hearing of the appeal to the State Board of Tax Appeals from the 1939 assessments on property of the Central Railroad •of New Jersey. He testified in that appeal that the method for determining the true value of property in railroad use had not changed since .1884. He said that the true value of a ■structure was arrived at from a calculation based upon the actual cost to erect the structure new. The railroads, he said, reported to the state the actual cost to erect each structure new. Mr. Feeht and. a staff of competent assistants checked and studied the plans and specifications for the structure, estimated the cost to erect it, and made a personal and careful inspection of the structure. Thereafter they held a conference with the railroad’s tax officers before appraising the structure and assessing it at its true value. From the actual cost to erect the structure new an amount was deducted for physical deterioration and obsolescence. Mr. Focht said that frequently the difference between the actual cost to erect a structure and the estimated cost was from fifteen (15%) per cent, to twenty-five (25%) per cent, and that the bids of experienced contractors to erect a railroad structure varied by as much as two hundred (200%) per cent. He said that it was not only impractical to determine the true value of a structure by estimating each year its reproduction cost new, less physical deterioration and obsolescence, but that it was impossible for his department, to value structures by that method because there were over 21,000 railroad structures in New Jersey. Hence, the Director of the Division of Taxation did not, indeed could not, determine every year the true value of railroad structures from a wild estimated cost to reproduce them new on the assessing date, especially during the years when our country was at war and both labor and materials were unavailable.

Many of the early statutes of New Jersey incorporating railroads provided for a tax to be imposed upon the railroad, which tax was fixed and determined by the act as a certain percentage of the cost of construction. In 1869 the legislature passed an act providing for “a tax of one-half of one per centum upon the costs of their respective works, including all their property of every description not otherwise taxed.” (Pamph. L. 1869, p. 226.) In 1873 the legislature provided that railroads shall be taxed upon their “cost, equipment, and appendages” at the rate of one-half of one per centum of such cost. (Pamph. L. 1873, p. 112.) It would therefore seem that the method used by Mr. Focht for nearly fifty years for determining the true value of structures in railroad use had legislative sanction, and that the method based on estimated reproduction cost new as of the assessing date does not have legislative sanction.

There is a total of thirty-six railroad structures involved in the 1945 assessments here under review. This Division found that the assessments were insufficient on twenty-one of those structures; i. e., that the assessments were below the true value of the structures. The Division affirmed the assessments on the other fifteen structures.

The only evidence of the value of all these thirty-six structures is the testimony of Phillips, Cleminshaw and Fryer. Either the testimony of Phillips, or the testimony of Cleminshaw, or the testimony of both, had to be relied upon by the Division to justify the increases it made in the twenty-one assessments. It therefore follows that the method Phillips and Cleminshaw used (for they used the same method), in arriving at their respective values of those twenty-one structures was approved by the Division, and the method used by the Director of the Division of Taxation was disapproved. Such necessarily had to be the effect of the Division’s decision because the method used by Phillips and Cleminshaw and the method used by the Director of the Division of Taxation are entirely different methods and would not produce the same results. One of these two methods is right; the other is wrong. If the method used by the Director of the Division of Taxation was wrong in valuing any of the thirty-six structures here under review, ipso fado, it was wrong as to all of them. Ergo, all of the thirty-six assessments on structures should have been changed by either increasing them or decreasing them according to the weight that should be given the testimony of Phillips and Cleminshaw. But this was not done. The Division affirmed some of the assessments and disaffirmed others. Such being the case, it thereby necessarily approved the method used by the Director of the Division of Taxation and also approved the method used by Phillips and Cleminshaw, and, at the same time, disapproved both methods. This highly inconsistent position defies all reason. Assessed values fixed in this manner appear out of nowhere as if by magic, like pulling rabbits out of a hat. The difference is that the rabbits are real while the assessments are mere pseudo-values. Moreover, the Division has totally disregarded the constitutional rule of uniformity, which requires that the same method should be used in valuing all these structures. State, North Ward National Bank v. City of Newark, 39 N. J. L. 380: Stratton v. Collins, 43 Id. 562.

An examination of the increases will show that they lack the supporting evidence and logical reasoning that every assessment should have. As an example, I will analyze the supporting testimony of a few of the values as finally determined by this Division.

The grain elevator at the Greenville Terminal of the Pennsylvania Railroad is twenty years old, having been built in 1926. Prior to 1936 it was assessed locally by the assessor of Jersey City. In 1935 its assessed value was $75,000. The first year it was assessed-as property in railroad use, 1936, it was assessed at $75,000. Each year since 1936 it has been assessed by the State Tax Commissioner at $75,000. Jersey City appealed the 1945 assessment. The railroad did not appeal this assessment. Phillips valued the structure for the tax year 1945 at $85,249.12.- Cleminshaw did not value it for the year 1945, but he valued it for the year 1944 at $89,101. Eryer valued it at $75,000 for the year 1945. The Division of Tax Appeals valued it for the 1945 assessment at $85,822.

Four hundred eighty-eight thousand two hundred eighty-five (488,285) feet of sidings of the New York Bay Railroad Company were assessed for the year 1945 at $686,634. Jersey City appealed the assessment; the railroad did not. Phillips valued these sidings for the year 1945 at $958,884.33. Cleminshaw did not value them for the year 1945, but he did value them for the year 1944 at $934,184. Fryer valued them at $678,856 for the year 1945. The Division valued them for the 1945 assessment at $900,213.

Four gantry cranes were assessed for the year 1945 at $79,892. Jersey City appealed the assessment. Phillips valued the four cranes at $193,388. Cleminshaw did not value them for the year 1945, but for the year 1944 he valued them at $73,000. Fryer valued them for the year 1945 at $79,892. This Division affirmed the assessment.

The brick office building at Exchange Place was assessed for the year 1945 at $53,000. Jersey City appealed the assessment. Phillips valued the building at $147,009.46. Cleminshaw did not value this structure. Fryer valued it at $53,000. This Division affirmed the assessment.

For the reasons herein given I could not find that the evidence justified any change in the assessments on structures as levied by the Director of the Division of Taxation;


source: Caselaw Access Project

author: Conklin, Commissioner:

license: Public Domain

text:
    Division of Tax Appeals.
    CITY OF HOBOKEN, PETITIONER, v. FRANK E. WALSH, DIRECTOR OF THE DIVISION OF TAXATION, AND HOBOKEN MANUFACTURERS RAILROAD SYSTEM, RESPONDENTS.
    Decided April 22, 1947.

      For the City of Hoboken, John J. Fallon (Frank P. McCarthy, of counsel).
    For the Hoboken Manufacturers Eailroad System, James D. Carpenter (Charles B. Collins, of counsel).
    For the State of Hew Jersey, Walter D. Van Riper, Attorney-General, and Benjamin C. Van Tine and Benjamin Taub, Deputy Attorneys-General.
   Conklin, Commissioner:

The complaint filed by the City of Hoboken alleges that certain properties of the Hoboken Manufacturers Eailroad System were under-assessed for the year 1945 and that property assessed by the state as land outside the main stem and in railroad use should be assessed locally as property not in railroad use. Appeals from the amount of the assessment, with respect to two parcels, were withdrawn from our consideration at the time of hearing, upon motion of the attorney for the City of Hoboken. The only matters left to be determined are the assessment on Block 269, Lot 24, which includes land outside the main stem, and the question of reclassification.

The valuation on Block 269, Lot 24, as found by the Director of Taxation should not be disturbed, as the proofs fail to establish palpable error in the method of valuation as used by the Director in the instant case, for amount of assessment.

Prior to the hearing a motion was made by counsel for the railroad, in which the Attorney-General joined, to dismiss that portion of the appeal as it applied to the reclassification, on the ground that the Division of Tax Appeals did not have jurisdiction to hear it. President Waesche, who presided at the hearing, reserved decision on the motion, advised counsel that the matter would be determined by the Division, and proceeded to hear the case upon its merits.

A statutory procedure is provided to determine if railroad property outside the main stem is railroad property in railroad use, subject to assessment by the state, or railroad property not in railroad use, subject to local assessment. R. S. 54:29A-41 to 54:29A-43, inclusive; N. J. S. A. 54:29A-41 to 54:29A-43, inclusive, outline a method to determine if property is railroad property in railroad use, where a dual assessment has been made by both the Director of the Division of Taxation and by the local taxing authority, through a summary hearing before three justices of the Supreme Court. The applicable section, R. S. 54:29A-41; N. J. S. A. 54:29A-41, provides:

“If property of a taxpayer has or shall have been, in any year, assessed by the local authorities of a taxing district, and has or shall have been also assessed by the state tax commissioner as property used for railroad purposes, the supreme court or any three justices thereof, assigned by the chief justice, shall determine, in a summary manner, the character of the property and whether used for railroad purposes and by whom it has lawfully been assessed. This determination shall be made whether the taxes in question have been paid or not and whether a certiorari to review either assessment has been granted or not.”

The respondent contends that inasmuch as this power is vested in the Supreme Court, in the case of a dual assessment, and since no powers are vested by the Eailroad Act of 1941 (section 54:29A-1, et seg.; N. J. S. A. 54:29A-1, et seg), in the Division of Tax Appeals to hear such a matter of reclassification of railroad property, that the Division of Tax Appeals is without jurisdiction and therefore cannot take the matter under consideration. With this we do not agree.

The motion to dismiss that portion of the appeal which applies to reclassification is hereby denied, as the Division does have jurisdiction and should determine the matter upon its merits. R. S. 54:29A—31; N. J. S. A. 54:29A—31, provides:

“Any taxpayer, the attorney-general on behalf of the state, or the authorities of a taxing district, desiring to contest the validity or amount of any assessment or reassessment of property or franchise tax m,ade by the commissioner under this act (chapter), may, as to the assessment or reassessment of property tax, on or before the third Monday of May following the assessment or reassessment thereof, and, as to the assessment or reassessment of franchise tax, on or before the first Tuesday of September following the assessment or re- ' assessment thereof, file a written complaint with the state hoard of tax appeals, specifying the grounds of complaint and the relief sought, which shall be in such form and contain such further information as may be from time to time prescribed by the rules of the state board of tax appeals for the better understanding and determination of the complaint.” (Italics ours.)

It appears that under the Bailroad Act of 1941, as amended, this petitioner was perfectly within its rights to contest the assessment before this Division on complaint and appeal, as the statute gives the authority of the taxing district a right to contest the validity of the assessment made by the commissioner.

In the proofs offered there is a variance in the testimony as to whether this is property in railroad use. We find as a fact that the assessment of the director as property in railroad use should not be disturbed and therefore this appeal shall be dismissed. ■

Judgments have been entered in accordance with the foregoing conclusions.


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

text:
    Atlantic County Circuit Court.
    BARTHOLOMEW GEORGE ADAMS, PLAINTIFF, v. THE COUNTY OF ATLANTIC, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, DEFENDANT.
    Decided May 20, 1947.

      For the plaintiff, Coulomb, McAllister & Hunter.

      For the defendant, Edmond G. Gaslcill, Jr.

   Joseph L. Smith, C. C. J.

This is a motion to strike the complaint based upon seven grounds. The seventh ground will not be considered as the complaint has been amended so as to eliminate this objection. The remaining six grounds upon which defendant relies assert that the complaint is insufficient in law. The complaint alleges that the plaintiff, an investigator in the office of the Prosecutor of the Pleas for the County of Atlantic, is entitled to certain salary or compensation from the defendant which amounts to the difference between his compensation as a member of the United States Naval Eeserve and what he would have received had he continued in his county employment from May 6th, 1943, to June 22d, 1945. It appears from further allegations of the complaint that the plaintiff was appointed to his position in the office of the Prosecutor of the Pleas in July of 1935. He continued in active service as an investigator until April 20th, 1943, but was paid until May 6th, 1943, for accrued vacation time. On Septemer 29th, 1941, the plaintiff enlisted in the New Jersey State Guard and on October 29th, 1942, he resigned to accept a commission as a lieutenant in the New Jersey State Guard. On October 30th, 1942, plaintiff was appointed a lieutenant in the said State Guard and continued as such until and including at least the 19th day of April, 1943. On November 27th, 1942, while serving as a lieutenant in the State Guard plaintiff enlisted in the United States Naval Eeserve and was assigned to inactive service. Plaintiff was notified on or about April 14th, 1943, to report for active duty in the United States Naval Eeserve. Plaintiff, in accordance with his orders, submitted his resignation on the night of April 19th, 1943, and was assigned to active duty in the United States Naval Eeserve on April 20th, 1943. Plaintiff served in the United States Naval Eeserve on active duty until he was honorably discharged on June 22d, 1945.

The cause of action herein asserted by the plaintiff is based on R. S. 38:12-4; N. J. S. A. 38:12-4, and R. S. 38:12-5; N. J. S. A. 38:12-5, which read as follows:

“R. S. 38:12-4; N. J. S. A. 38:12—4. Leave of absence for state and municipal employees without loss of pay; additional to regular vacation.

“All officers and employees of this State or of any county or of any municipality in the State or of any board or commission of the State or of any county or municipality who are members of the National Guard, naval militia or New Jersey State Guard shall be entitled to leave of absence from their respective duties without loss of pay or time on all days during which they shall be engaged in field training or other duty ordered by the Governor.

“Leave of absence for military or naval duty shall be in addition to the regular vacation allowed to such employees by the State, county or municipal law, ordinance, resolution, or regulation. As amended L. 1941, c. 109, p. 251, Sec. 23.”

“R. S. 38:12-5; N. J. S. A. 38:12—5. Salary to equal loss suffered while on active service.

“During the absence of any such officer or other employee, mentioned in section 38 :12-4 of this title, on active service with the army or navy of the United States or any other organization affiliated therewith, such person shall ■ receive such portion of his salary or compensation as will equal the loss he may suffer while on such active service.”

The question before the court as raised by this motion is whether or not the plaintiff is within the provisions of R. S. 38:12-4; N. J. S. A. 38:12-4, and R. S. 38:12-5; N. J. S. A. 38:12-5. The defendant contends that the plaintiff is not entitled to the benefits contained in R. S. 38:12-4; N. J. S. A. 38:12-4, and R. S. 38:12-5; N. J. S. A. 38:12-5 because on the date the plaintiff was assigned to active duty in the United States Naval Keserve he was not a member of the New Jersey State Guard.

In deciding this motion the court is permitted to consult the statutes of the United States, the appropriate New Jersey statutes, and the records of the applicable government departments. Authority for this is contained in the ease of Stephens v. Civil Service Commission, 101 N. J. L. 192 (at p. 194); 127 Atl. Rep. 808 (at p. 809), wherein Judge Clark said, “the general principles of statutory construction applicable are well established and can be briefly stated.. In assisting us to arrive at the intention of the legislature we are permitted to consult the statutes of the United States, of our own state, and such records of the government departments involved as are properly matters of judicial notice.” Counsel have also stipulated that the resolution of the Board of Chosen Freeholders of the County of Atlantic and the certified copy of the record from the office of the Adjutant-General of the State of Hew Jersey, the affidavit of the plaintiff, the photostatic copy of plaintiff’s record in the office of the Adjutant-General of the State of New Jersey and the affidavit of Brigadier General Bowers be used and considered by the court in deciding this motion.

Where the words of a statute are clear and their meaning and application are plain, sensible and substantial there is no authority for and the statute cannot be controlled by judicial construction. Herod v. Mutual Chemical Company of America, 115 N. J. L. 369; 180 Atl. Rep. 432; Alexander Hamilton Hotel Corp. v. Board of Review of New Jersey Unemployment Compensation Commission, 127 N. J. L. 184; 21 Atl. Rep. (2d) 739. The words of R. S. 38:12-4; N. J. S. A. 38:12-4, and R. S. 38:12-5; N. J. S. A. 38:12-5, are clear but their meaning and application are not plain, sensible and substantial with reference to members of the Hew Jersey State Guard. By virtue of R. S. 38:5-7.1; N. J. S. A. 38:5-7.1, it is clear that the Hew Jersey State Guard may not be called, ordered, or drafted, as such, into the military service of the United States. The same statute expressly states that no member of the Hew Jersey State Guard shall be exempt from military or naval service under any law of the United States by reason of his enlistment or commission in the Hew Jersey State Guard. Congress by statute provided that the Haval Reserve shall be a component part of the United States Havy. This statute (34 U. S. C. A. 853) was passed June 25th, 1938. Section 853 b of this act provides that no officer or man of the Haval Reserve shall be a member of any other naval or military organization except the Hava] Militia. It is further provided that by appointment or enlistment in the Haval Reserve, one is obligated to serve in the navy in time of war or when in the opinion of the President a national emergency exists. State statutes should be so construed as to harmonize with federal legislation on the same subject and facilitate the administration of justice, 59 Corp. Jut. 1053. All statutes are presumed to be enacted by the legislature with full knowledge of the existing condition of the law and with reference to it. 59 Corp. Jur. 1038. It should be noted that R. S. 38:12-4; N. J. S. A. 38:12-4, which has its source in the laws of 1937, chapter 49, was amended by the laws of 1941, chapter 109, so as to change the original designation of “New Jersey Guard” to “New Jersey State Guard.” This conforms with the classification of the militia as contained in R. S. 38:1-1; N. J. S. A. 38:1-1. Thus the court must conclude that members of the New Jersey State Guard are to receive the same benefits under this statute as members of the New Jersey National Guard and the naval militia. In Tucker v. Beltramo, 117 N. J. L. 72 (at p. 77); 186 Atl. Rep. 821 (at p. 824), Mr. Justice Heher said: “A modification of the law was indubitably contemplated. This is fairly to be presumed from the change in phraseology. There is a presumption against useless legislation.” In the case of members of the New Jersey National Guard and the naval militia the applicability of R. S. 38:12-5; N. J. S. A. 38:12-5 can be effected upon their respective units being called to active duty with the United States Army or Navy. But what of members of the New Jersey State Guard? That unit cannot be called into active duty by the federal government as is provided in R. S. 38:5-7.1; N. J. S. A. 38:5-7.1. It is conceivable that members of the New Jersey State Guard could be drafted into federal service and thus become eligible for the benefits of R. S. 38:12-5; N. J. S. A. 38:12-5. Would this deprive a member of the New Jersey State Guard otherwise eligible for the benefits of R. S. 38:12-5; N. J. S. A. 38:12-5, of the privileges of this statute if he volunteered for service in the United States military forces ? It is clear that no distinction is to be made between one who volunteered his services and one who was drafted. Mr. Justice Heher in Kobylarz v. Mercer, 130 N. J. L. 44 (at p. 48); 31 Atl. Rep. (2d) 208 (at p. 212), said: “There can be no distinction in this behalf between those who volunteer for service during the war and those whose services are conscripted.” The fact that this plaintiff was ineligible for the draft as is contended by the defendant is of no consequence. A further question arises as to whether the provisions of 34 U. S. C. A. 853 prohibiting members of the Naval Keserve from being members of any other military organization except the Naval Militia would not nullify the provisions of R. S. 38:12-5; N. J. S. A. 38:12-5, with respect to members of the New Jersey State Guard. The United States Constitution provides that the constitution and the laws passed pursuant thereto shall be the supreme law of the land, article 6, clause 2, thus if a law passed by a state in the exercise of its acknowledged powers comes into conflict with an act of Congress, the state law must yield. In State v. Sutton, 87 N. J. L. 192 (at p. 194); 94 Atl. Rep. 788, Mr. Justice Garrison said: “Another canon of constitutional law is that the language of the legislature will if possible, be so construed as to uphold rather than to destroy a statute it has enacted.” In so far as members of the New Jersey State Guard are concerned 34 U. S. C. A. 853 b and R. S. 38:12-5; N. J. S. A. 38:12-5, are in conflict if a literal interpretation is to be given to both of these statutes. Strictly speaking, a member of the New Jersey State Guard cannot be a member of the United States Naval Keserve. It would require a separation from the New Jersey State Guard prior to commencing active duty, as distinguished from inactive duty, with the United States Naval Keserve. I make this distinction in view of my remarks to follow concerning “inactive duty.” However, I do not think that the provisions of 34 U. S. C. A. 853 b would operate automatically to deprive a member of the New Jersey State Guard of his status as such by virtue of the fact that such a member is assigned to active duty with the Army or the Navy. At most I think the status of a member of the New Jersey State Guard called to active duty with the Army or Navy would merely be a suspension of his status as an officer or enlisted man in the New Jersey State Guard. In Kobylarz v. Mercer, supra, 130 N. J. L. (at p. 52); 31 Atl. Rep. (2d) (at p. 214), Mr. Justice Heher said: “The strongest grounds of public policy dictate that when the national security is periled by war the citizen’s performance of this imperative duty should be stimulated and encouraged. The legislative history reveals a recognition of this principle. The civil rights and privileges of a public officer who joins the armed forces in the emergency of war are to be secured so far as is practicable and consistent with the common interest. * * * Such is the legislatively established state policy. And we find no conflicting and overriding federal policy. Section 1222 of the Revised Statutes of the United States (10 U. S. C. A., § 576) invoked by appellant is not conclusive of the issue. It provides that ‘No officer of the Army on the active list shall hold any civil office, whether by election or appointment, and every such officer who accepts or exercises the functions of a civil office shall thereby cease to be an officer of the Army, and his commission shall be thereby vacated.’

“It would seem that-this provision is not in terms applicable to a state or municipal officer on leave of absence for service in the Army during the war, where under state law his occupancy of the civil office is suspended during the period of the exigency. But, however this may be, the statute manifestly does not operate to vacate the civil office in the case at hand. Such an interdiction upon a state officer in the national interest must be distinct and peremptory. Nolis it the province of this court to enforce the federal policy thus laid down; it is not our function to determine Gabriel’s status as an officer of the Army under that section.”

The plaintiff contends that he is entitled to the privileges of R. S. 38:12-5; N. J. S. A. 38:12-5, for the reason that on September 29th, 1941, he enlisted in the New Jersey State Guard and was an-officer in the said guard when he enlisted in the United States Naval Reserve on November 27th, 1942. At that time the plaintiff was assigned to inactive duty in the Naval Reserve and continued to serve actively in the New Jersey State Guard. The mere enlistment of the plaintiff in the United States Naval Reserve with an immediate assignment to inactive duty of course would not entitle the plaintiff to any of the privileges enumerated in R. S. 38 :12-5 ; N. J. S. A. 38:12-5, for the evident reason that no time or pay would bo lost by such a public employee. Further by his enlistment in the United States Naval Reserve and his assignment to inactive duty, the plaintiff was not in the naval service and he had done no more than obligate himself to serve when called upon in war or in a national emergency declared by the President. Hilton v. United States (1943), 99 Ct. Cl. 386. The plaintiff’s right to bring this action therefore rests upon his entrance on active duty with the United States Navy as of April 20th, 1943. The plaintiff alleges that he did not prepare his resignation from the New Jersey State Guard until the night of April 19th, 1943. Further this resignation was submitted in accordance with his orders from his superior officer in the United States Naval Reserve for the express purpose of serving on active duty with the United States Navy. This court holds that the plaintiff was such a member of the New Jersey State Guard at the time he went on active duty with the United States Navy as to entitle him to the privileges of R. S. 38:12-5; N. J. S. A. 38:12—5. As was stated by Mr. Justice Minturn in West Shore Railroad Co. v. State Board of Taxes, 92 N. J. L. 332 (at p. 335); 104 Atl. Rep. 335 (at p. 336) : “The inquiry obviously resolves itself into one of legislative intent, and to divine the legislative purpose we must consider not only the act sub j-udice, imposing the tax, but all kindred legislation; for the rule of construction is fundamental that when divers laws are made relating to one subject-matter, the whole must be considered as constituting one system, and mutually connected one with another. New Jersey Insurance Co. v. Meeker, 37 N. J. L. 282, 304.” In the instant case our legislature intended to stimulate and encourage the citizen’s duty to render service in a national emergency. The legislature therefore provided certain privileges for public employees who were members of the National Guard, the naval militia, and the New Jersey State Guard and who were absent due to active service with the Army or Navy of the United States. The defendant contends that this plaintiff occupies no different position than other Atlantic County employees who served in the armed forces on leave of absence but without pay. The legislature made provision for these employees by the provisions of R. S. 38:23-3; N. J. S. A. 38:23-3. They are not considered in the same category as public employees who were also members of the militia of the State of New Jersey. Therefore this plaintiff herein is entitled to bring this action under R. S. 38:12-5; N. J. S. A. 38:12-5, because in addition to being a county employee he was also a member of the New Jersey State Guard at the time he entered upon active duty with the Navy. In this connection the court desires to point out that many private business concerns made provision whereby their former employees, in active service were paid the difference in what they had been earning and their service pay for the duration of their military service. In the case of Roper v. Walsh, 289 N. Y. 546; 43 N. E. Rep. (2d) 528, the Court of Appeals of New York in a per curiam decision upheld the right of a New York City fireman to recover the difference in pay between what he received as a member of the United States Naval [Reserve and what he would have received as a city fireman. See, also, Williams v. Walsh, 289 N. Y. 1; 43 N. E. Rep. (2d) 498.

It seems clear that R. S. 38 :12-5; N. J. S. A. 38:12-5 was intended by the legislature to apply to members of the New Jersey State Guard regardless of whether or not they volunteered or were drafted into federal service. The whole purpose and intent of the legislature in creating the State Guard was to provide a state force to take the place of the National Guard and thus by necessary implication it would consist of men ineligible for other reasons for the most part to serve on active duty with the Army or Navy. A statute often speaks as plainly by inference and the purpose which underlies it. That which is clearly implied is as much a part of the law as that which is expressed. Brandon v. Montclair, 124 N. J. L. 135; 11 Atl. Rep. (2d) 304.

It is a natural inference that our legislature intended to confer the privileges of R. S. 38:12-4 and 5; N. J. S. A. 38:12-4 and 5 to those who volunteer for active duty and resign their commissions in the militia as well as to those who may be drafted for active federal service and who may neglect to submit their resignations to the proper state authoritics. This plaintiff was within the letter and the spirit of these statutes.

It is true that the plaintiff submitted his resignation as an officer in the State Guard through proper channels to the Governor on April 19th, 1913. This resignation gave the plaintiff’s reason for resigning that he was entering the United States Navy. The resignation was approved by the Battalion Commander on May 5th, 1943. It was further approved by the Commander of the State Guard on May 27th, 1943. The Governor of the state then accepted the said resignation effective April 19tli, 1943. It is not clear on what date the Governor actually accepted the said resignation but it is apparent that the resignation had not cleared the official channels until at least May 27tli, 1943. In the service of the United States the resignation of an officer is not complete until he receives notice of the acceptance of same. Mimack v. United States, 10 Ct. Claims 584. There is no specific statute concerning resignation from the New Jersey State Guard but R. S. 38:5-8; N. J. S. A. 38:5-8 provides that the provisions of law and the regulations in respect to the National Guard, and Naval Militia of the state where applicable, shall apply to the New Jersey State Guard. R. S. 38:3-22; N. J. S. A. 38:3-22 provides that a commissioned officer of the National Guard may resign his commission but such resignation shall not become effective until it shall have been accepted by the Governor. The absolute necessity of such a provision is especially apparent in war time. If military officers were permitted to resign of their own will and thereby to set the time when their resignation should become effective, chaos would result. In this ease the affidavit of the Adjutant-General of the State of New Jersey reveals that the Governor accepted resignations of officers of the New Jersey State Guard effective the date prior to the date on which such individuals commenced active federal service; notwithstanding the resignation may not have been received by the Adjutant-General or accepted by the Governor until a date subsequent to the effective date of acceptance. This procedure was followed pursuant to Army Begulations 850-250, paragraph 4, which provides, “State Guard and Federal Service—a. Selective Service.—Membership in the State Guard does not constitute ground for individual exemption from Federal miiltary service under the Selective Training and Service Act of 1940 approved 16 September 1940 (54 Stat. 885; 50 U. S. C. Appendix 301-318; 50 U. S. C. A. Appendix, §§ 301-318; M. L. 1939 Sup. II., sec. 2225-1-2225-16) or other Federal law. Furthermore, such membership clearly would be incompatible with active service in the armed forces of the United States. Accordingly the State authority concerned should provide for the prompt discharge from the State Guard of such of its members as are inducted, enlisted, or otherwise engaged in the active military service of the United States.” The Special Order by which the Governor accepted the plaintiff’s resignation was similar to what is known as a nunc pro tunc entry made in appropriate cases by our courts. The phrase nunc pro tunc is used to express that a thing is done at one time which ought to have been performed at another but the rule of nunc pro tunc entries can never be invoked to change a legal status. Rinehart v. Rinehart, 91 N. J. Eq. 354; 110 Atl. Rep. 29. The legal status of the plaintiff in so far as he was a member of the New Jersey State Guard serving on active duty with the United States Navy cannot be changed by a subsequent acceptance of his resignation to the extent that he is thereby to be denied the privileges of R. S. 38:12-4 and 5; N. J. S. A. 38:12-4 and 5.

This court holds that the proper Judicial construction and interpretation of R. S. 38:12-4; N. J. S. A. 38:12—4, and R. S. 38:12-5; N. J. S. A. 38:12-5, when viewed in conjunction with the existing federal and state laws on the subject requires that the court give effect to the intention of the legislature by concluding that the plaintiff is within the provisions of the said statutes. This court further holds that the plaintiff’s resignation was not accepted until subsequent to his going on active duty with the United States Navy and therefore the motion to strike the complaint will be denied. '


author: Drewbn, C. P. J.

text:
    Hudson County Court of Quarter Sessions.
    THE STATE OF NEW JERSEY v. BERNARD N. McFEELY ET AL.
    Decided April 29, 1947.
    For the state, Horace K. Roberson.

    Tor the defendants, Edward J. O’Mara.

   Drewbn, C. P. J.

This is a motion to quash an indictment for conspiracy at common law. (It is stipulated by the state that the indictment is not within the terms of our conspiracy statute, R. S. 2:119—1; N. J. S. A. 2:119-1, but is intended to be within those of R. S. 2:103-1; N. J. S. A. 2 :103-1.)

The defendants are government officers of the City of Hoboken. They include the Mayor, the Director and Deputy Director of Public Safety, the chief and deputy chief of police, and divers superior officers of the city’s department of police. The persons at whom the confederated purpose is charged to have been directed are described as patrolmen of the city’s police, seventeen in number. The design of the conspiracy is charged, with all the necessary allegations of corrupt and evil purpose, to have been the coerced dismissal or resignation of the named patrolmen from their respective positions as policemen of the city. The means by which the stated purpose was planned to be accomplished are described and alleged as, among other things, unwarranted harassment, the making of false and groundless departmental charges, and various unjustified intimidations having reference to impoverishment, civil injury and other evil prospects. Numerous overt acts are alleged.

That the conspiracy statute, supra, does not displace conspiracy at common law would appear to be entirely settled. State v. Norton, 23 N. J. L. 33; State v. Donaldson, 32 Id. 151; State v. Loog, 13 N. J. Mis. R. 536; 178 Atl. Rep. 623; affirmed, per curiam, sub. nom. State v. Henry, 117 N. J. L. 442; 188 Atl. Rep. 918; State v. Continental Purchasing Co., 119 N. J. L. 257; 195 Atl. Rep. 827; affirmed, per curiam, 121 N. J. L. 76; 1 Atl. Rep. (2d) 377; State v. Ellenstein, 121 N. J. L. 304; 2 Atl. Rep. (2d) 454.

The argument to quash concedes, in the survey of juristic development which it presents, that the earliest principles of common law conspiracy have been progressively amplified and extended; but it denies emphatically that the result of this is to include a charge like that made by the present indictment, which throughout their discussion is dealt with by defendants as a charge of conspiracy to do no more than civil injury to individuals. Whether in every case such a purpose must be adjudged insufficient as an element of criminal conspiracy at common law is beside the present question, but it is the court’s opinion that the indicated view of the charge made by this indictment is altogether too narrow. In the survey of development already mentioned authorities are cited by defendants as declaring the limits to which the development has gone. Out of these authorities we shall consider from among the objects stated as rendering a confederated purpose indictable, those which have a bearing on the controversy. (These, of course, are all in addition to combinations to commit crime and combinations having designs implemented by criminal means.) The indictable instances thus shown are those in which the purpose is to defraud an individual by fraudulent and indirect devices; or to prejudice the public or the government; or to use improper- means to injure another’s reputation; or to impoverish another in his trade or profession (Wharton’s Crim. L. 486, et seq.). The question is, do the principles just stated, or the pronouncements of our own courts (infra), or both together, embrace the conspired purpose in the charge before us.

The argument of attack is made as it we had only to return to the orthodox by restoring the purity of texts. But strictly, there is no orthodox. The problem is that of rightly tracing the evolving course of common law on the subject in hand, from which it follows that our primary concern is to ascertain the phase to which the development of doctrine thus far has brought us rather than the exact terms of the primal doctrine itself. Some of the very texts defendants cite in their own support carry implicit evidence of the pressure of expanding change against which they were written. The learned brief submitted for the motion takes us back through far away centuries and into many an ancient book, but it will serve no useful purpose now to linger among the antiquities, and for a reason presently to appear.

There are plenty of judicial pronouncements that are in contemporaneous and direct conflict with what defendants urge. These are pronouncements by our own appellate courts. By them it is laid down that a conspiracy is indictable at common law where its intended result is the injury or oppression of individuals; or where the public interest is injuriously involved; or where the design is to cause civil injury, or unjustly to subject individuals to the power of the confederates. State v. Norton, 23 N. J. L. 33 : State v. Donaldson, 32 Id. 151; State v. Cole, 39 Id. 324; State v. Bienstock, 78 Id. 256; 73 Atl. Rep. 530; State v. Continental Purchasing Co., supra.

Now defendants admit all of these pronouncements by our courts, but they would discount them in toto as obiter dicta; and in those instances where the precise adjudication is at variance with the attack now made, the decisions are said to be actually though not ostensibly in cases of statutory rather than common law conspiracy, or they are said to be without precedent and to be unsupported by the authorities they rely on. Whether the cases referred to are for the reasons stated truly without force as precedent will not, in the deciding of this issue, be called in question; the decisions themselves stand and are binding here. With regard to the so-called obiter dicta, an observation must be made. In an inquiry like this, obiter dicta do evince the thoughts and appraisals by which the courts expressing them are guided to their conclusion, and though they may not stand in close relation to the exact issue, they do have their part, nevertheless, in determining it and must be taken as disclosing an aspect of repugnance between life and the law as the same is contemplated by those whose duty it is judicially to declare the principle of accommodation revealed thereby. Not the sources of the common law, only its evidence is found in decisions and in texts; and the two are not always convertible terms. Heise v. Earle, 134 N. J. Eq. 393 (at p. 402) ; 35 Atl. Rep. (2d) 880. Also, the obiter dicta in question, if such they be, have been so repeatedly approved by our appellate courts as to command present adherence.

In overruling a long established principle of common law and supplementing it with one more consonant with modern considerations and requirement, our Court of Errors and Appeals has made this observation: “Great progress has been made in every field of human endeavor since 1777. Many and varied have been the changes. So has the law, from time to time, likewise undergone changes. Majestically the law always lends itself to an interpretation which results in the safeguarding and preservation of human and property rights. It is because law is based on reason and justice that it ultimately triumphs. The science of the law must not merely be a pulsating and living factor but a virile, wholesome and ardent champion of truth and justice as well.” Loudon v. Loudon, 114 N. J. Eq. 242 (at p. 246); 168 Atl. Rep. 840.

In saying the things we have and in quoting the foregoing passages it is not forgotten that we are dealing with the law of crimes. The purpose is to show the common law as capable of organic life. Striking workmen were once indictable as conspirators, and in defendants’ brief there is a reference to “the now outmoded labor cases.” Thus we see the common law, theoretically at least, in its spontaneous adaptability, and though in its interpretation no new crime may be created, it becomes fairly apparent that old ones may be preterttdtted. The word of caution given in defendants’ brief that the office of the court is to interpret law and not to make it has not been lost. Nor it is enough to say that while the court may define a common law crime it may not in doing so devise one, for it is altogether possible for a new definition to result in a new crime. The margin between defining and devising could be found deceiving and uncertain country. At any rate, there is no reason to be complacent about the clarity or simplicity of the answer to the question raised by this motion.

The expansive principles of common law conspiracy that have been cited, including those by our own courts, are stated in the abstract and in general terms. But the indictment itself is not abstract, it presents a concrete case, and we have been able to find no precedent, nor has any been brought to our notice, in which superior public officers have been indicted for criminal conspiracy arising out of the exercise of command and authority over their subalterns. For this reason and because of what we deem the over-confident belief of defense counsel that the factors in our problem are plain and calculable, we quote from the language of Chief Justice Beasley in State v. Donaldson, supra, as partly embodied in 12 Corp. Jur. 540, § 1: “It has been said that there is perhaps no crime an exact definition of which it is more difficult to give than the offense of conspiracy; a difficulty resulting in a large measure from the fact that the law on the subject of conspiracy, except where settled by legislative enactment, is, beyond certain limits, in a very uncertain state; the eases beyond such limits, which have been adjudged to be conspiracies, appear, it has been said, ‘to stand apart by themselves’ and to be ‘devoid of that analogy to each other which would render them susceptible of classification.’ ”

Let it now be remarked that what the state asks of this court is, in effect, that the court, a trial court, designate as a common law crime conduct whose character as such is imputed out of circumstances distinctly novel to the purpose. This should not be done lightly. What grounds are there for doing it at all ? The answers given to this question represent the reasons which, in the judgment of this court, relate the allegations in the indictment before us to the broadened principles of common law conspiracy above set forth out of the opinions of our own appellate courts and standard juristic texts. The first reason appears from a reflection upon what the deficiencies of the law would be were the limitations of common law conspiracy what the defendants say they are. There is a double potentiality in the combination described by the charge here made; its possible consequences are not only private and personal, but also public and social. The first relate to the right of the patrolmen to pursue their means of livelihood and to carry on their chosen work in life without inimical interference or frustration like that alleged, and to their right to be free from “impoverishment in their trade;” and the second relate to a contaminated police morale or positive impairment of police protection, or both, either of which would amount to a definite prejudice to the public. A reflection like that suggested would appear to be an altogether legitimate approach to the problem. Chief Justice Beasley, whose opinions characteristically reveal a learned, philosophic sense of the common law, justified the broadening of the common law rule by those cases of criminal conspiracy which could not have been “sustained upon any other doctrine.” State v. Donaldson, supra (at p. 153). Another impelling thought is that the ever tightening interdependence of men in modern society, economically and socially, presents more and more the need of minimum standards of mutual right and protection—within, of course, the principles stated— which the law can enforce. This consideration has in-view the nameless, devious and infinitely variegated and intolerable wrongs and oppressions rendered possible upon the combining for evil oi the resources of many against one, or of many against a few. Then there is the very nature of conspiracy itself. “An act may be immoral without being indictable, where the isolated acts of an individual are not so injurious to society as to require the intervention of the law. But when immoral acts are committed by numbers, in furtherance of a common object, and with the advantages and strength which determination and union impart to them, they assume the grave importance of a conspiracy, and the peace and order of society require their repression.” State v. Burnham, 15 N. H. 396. And “there are circumstances in which combinations of persons, for the promotion of evil, portend a danger, and call for legal interposition, when the single efforts of individuals might pass unnoticed by the law.” 2 Bishop’s Criminal Law (7th ed.), 180.

And lastly, a concerted, malicious scheme to drive men out of their employment and so deprive them of a means of livelihood, by the pressing of groundless charges of wrongdoing, very probably amounts to a combination to “defraud by fraudulent and indirect devices.”

However, and all things else notwithstanding, it is urged upon the court that the duty and accompanying right of these defendants to impose discipline on those they are charged with oppressing renders the indictment a paradox in the law. They say further that the relation noted, in and of itself, disqualifies the allegations as sufficient to constitute a charge of criminal conspiracy. This objection at once brings to mind the opposing truism that the power to enforce discipline is normally the power to abuse or pervert it, and that where abuse or perversion ensue, it must, if for no better reason than the preservation of discipline and hence of the service itself, be rendered amenable to a higher authority, more especially where, as here, a vital public interest is involved. To this the reply is made that the law already provides the higher authority and R. S. 40:47-10; N. J. S. A. 40:47-10 is cited. We are not prepared to say that some complication of the problem might not thus arise. Concededly the respective official positions of these defendants (appearing on the face-of the indictment) vests in them the duty of authority and discipline over the subalterns named, and it cannot be that every excess or other departure from permissible standards of command that involves the conduct of plural actors shall' amount to a criminal conspiracy. But returning to this particular indictment, it is the court’s opinion, assuming the-truth of the allegations as for present purposes we must, that the departure from permissible standards thus presented is-matter not of. degree only, but of kind.

There is nothing for this, the trial court, to do but declare-in its discretion, and for the reasons set forth, that the indictment before it is included within the scope of the principles by which the common law of conspiracy is now broadened-To do otherwise would amount, in effect, to a multiple repudiation by this court of appellate decisions.

The motion to quash must be denied.


author: Kustkeab, 0. C. J.

text:
    IDA C. ROSE, PLAINTIFF, v. RALEIGH FITKIN-PAUL MORGAN MEMORIAL HOSPITAL-ANN MAY FOUNDATION, DEFENDANT.
    Decided May 10, 1947.
    Por the plaintiff, Parsons, Labrecque, Canzona & Combs.

    Por the defendant, Durand, Ivins & Carton.

   Kustkeab, 0. C. J.

This case was tried before the court without a jury on stipulation by the parties that a trial by .jury be waived and the matter heard and determined by the court.

The case involves the right of a private nurse, earing for a patient at the Pitkin Hospital, to recover damages from the hospital for injuries sustained by her as the result of a fall due to the alleged negligence of an employee of the •defendant-hospital.

The evidence shows that on December 7th, 1943, the plaintiff, a registered nurse, 52 years of age, was attending a patient in the defendant-hospital. The plaintiff was privately employed and personally paid by the patient. On the day in question, she had gone into the kitchen to procure a meal for her patient. On her way back to her patient, she was carrying the patient’s tray in front of her, when she was thrown by a pan which had been placed on the floor under a leaking pipe by a hospital employee.

The plaintiff’s version of the accident was corroborated by other witnesses, one of whom was the hospital employee who had placed the pan under the leak.

On cross-examination, the plaintiff testified that she was one of a number of nurses who were registered at the hospital for service. She admitted that having been a graduate of the Ann May School of Nursing, which is the trailing school for nurses operated by the defendant-hospital, she obtained a preference granted to such graduates when nurses were desired at the hospital; and that this registry service was operated by the hospital as a matter of courtesy, and that she paid nothing for this service. Plaintiff also admitted that while attending patients at the hospital, she was permitted to obtain her meals at the hospital, which meals were paid for by the patient.

At the conclusion of the plaintiff’s case, the defendant moved for a nonsuit on the ground that the plaintiff was a recipient of the benefactions of the defendant-hospital, or a beneficiary of the hospital, and that the hospital, being admittedly a charitable corporation, was not liable as such for the mere negligence of its servants. The defendant-hospital has subsequently stated through counsel that it does not propose to offer any testimony. Therefore, the court may grant the motion for a nonsuit; and if it does not, a verdict awarding damages to the plaintiff will be in order.

There is no uniformity among the courts of the several states concerning the liability of a charitable institution to respond in damages for negligence or its servants. Some states have adopted the rule of absolute or unqualified immunity so far as charitable institutions are concerned. The courts of New Jersey, on the other hand, have adopted the rule of qualified immunity.

In D’Amato v. Orange Memorial Hospital, 101 N. J. L. 61; 127 Atl. Rep. 340, the Court of Errors and Appeals held that a hospital patient was a beneficiary of the institution, and as such was not entitled to recover for the negligence of the hospital’s servants. The court made no distinction between a paying patient and a charity patient.

In Boeckel v. Orange Memorial Hospital, 108 N. J. L. 453; 158 Atl. Rep. 832, the rule as to the non-liability of hospitals to beneficiaries was extended by the Supreme Court to include as beneficiaries persons injured while visiting patients. At p. 456 of 108 N. J. L.; at p. 833 of 158 Atl. Rep., the court held: "Accepting the principle, as applied to a charitable institution maintaining a hospital, that public policy denies recovery to a patient injured through the negligence of a nurse, we consider that the logic of the rule holds the same negation against those who, in visiting a patient, are injured from like cause.” Verdicts in favor of the plaintiffs were set aside by the Supreme Court, and when the ease was re-tried before Circuit Court Judge Lawrence without a jury, Judge Lawrence rendered a verdict in favor of the defendant. An appeal was taken and the Court of Errors and Appeals, in an opinion reported in 110 N. J. L. 509; 166 Atl. Rep. 146, unanimously affirmed the trial court, thereby approving the earlier ruling of the Supreme Court.

In Simmons v. Wiley Methodist Episcopal Church, 112 N. J. L. 129; 170 Atl. Rep. 237, the immunity of charitable institutions was restricted by our highest court. In that case, the plaintiffs were injured in a highway collision through the negligence of the servant of the defendant-church. The rule was laid down that a charitable institution is liable in damages for injuries sustained by a person on the public highway through the negligent operation of the charitable institution’s truck by its servant, where the injured person was a stranger having no beneficial relation to the institution.

The court held, 112 N. J. L. (at p. 132); 170 Atl. Rep. (at p. 238) :

“How, it is quite within reason to declare that public policy forbids a charitable institution being held constantly to the danger of damages for untoward results in some of the continuous ministrations to the direct beneficiaries of its charitable contributions; but such a rule is not invoked with equal justice, nor indeed by virtue of any public requirement, in the case of tortious injuries to those outside of its benefits, neither seeking nor receiving the same. It may well be sound public policy to avoid a diversion of trust funds from the-direct object of their charitable donor by forbidding their application to damages for the negligence of the charity’s servants where the injured party participates in the charity’s bounty, but no charitable organization, no matter how lofty in character the motive or purpose, should be permitted with impunity to set up and operate machinery and thereby injure-by negligence those unconcerned in and unrelated to that which the donor brought into being or supports in operation.. To hold otherwise would be to acquiesce in the careless selection of servants, and in the carelessness of those selected, in the operation of automobile trucks on the public highway to-the injury of entire strangers to the charity, a proposition repugnant to one’s sense of justice.”

In Kolb v. Monmouth Memorial Hospital, 116 N. J. L. 118; 182 Atl. Rep. 822, the immunity of charitable institutions was further limited. In that case, the plaintiff was a member of a first aid squad. The first aid ambulance, with the plaintiff and another, brought a patient to the Monmouth Memorial Hospital. Hpon reaching the hospital, plaintiff entered through the emergency entrance to get the hospital stretcher to carry the patient into the hospital. It was while-in the act of getting the stretcher that he fell and was injured through the negligence of the employees of the hospital. A verdict in favor of the plaintiff was unanimously affirmed by the Court of Errors and Appeals, which held, 176 N. J. L. (at p. 120); 182 Atl. Rep. (at p. 823) :

“It obviously, therefore, becomes necessary to recur to the-question of the relation of the plaintiff to the hospital at the time of the accident. What was his status? It is clear that he was not personally the recipient of the benefactions, of the hospital. Was he, however, a beneficiary of its benefactions, or was he 'unconcerned in and unrelated to’ the-hospital and its operation? A beneficiary is defined as 'the-recipient of another’s bounty; one who received a benefit or advantage.’ 7 C. J. 1133, 1134. Judicial construction and application of that term, in this class of eases, finds perfect, expression in the Boeckel case.

“In the case at bar, the facts, on the point of the relation of the plaintiff to the hospital, are not in dispute. They arc these: Plaintiff was a member of the first aid squad of the ■Oakhurst volunteer fire department. The organization owned, among other equipment, an ambulance to take care of emergency cases. In response to a call that one, Eoss Clayton, of Deal, New Jersey, had to be taken to the defendant hospital, plaintiff, in company with a fellow member of the squad, drove to the Clayton home and transported him to the hospital. Upon reaching the hospital plaintiff entered through the emergency entrance, as he had done on some twenty-five or thirty other occasions, to get the hospital stretcher to carry the patient into the hospital. It was while there and in the act of getting this stretcher that he fell and sustained the injuries for which he sued. Plaintiff was not related to the patient; he had nothing to do with the arrangements for the patient’s admission to the hospital; they were made by the members of the patient’s family and his physician. There is not even a suggestion that plaintiff received any compensation, from either the patient, or the hospital, or his organization, for his services. Obviously, therefore, in transporting Clayton to the hospital plaintiff was neither the recipient nor the beneficiary of the hospital’s benefactions. We are firmly of the opinion that plaintiff was, within the holding of our cases, ‘'unconcerned in and unrelated to’ the hospital and its operation.”

In Bianchi v. South Park Presbyterian Church, 123 N. J. L. 325; 8 Atl. Rep. (2d) 567, the church house of the defendant was used as a social center as well as for the administration of church affairs. The plaintiff belonged to a girl scout troop which held weekly meetings in the church house. While attending one of these meetings, the plaintiff was injured by reason of the negligence of the janitor in failing to illuminate the steps. The Court of Errors and Appeals affirmed a judgment of nonsuit upon the ground that the plaintiff', in using the church house as a member of the girl scout troop, was a beneficiary of the defendant’s charity. The plaintiff was ruled to be a beneficiary.

In the instant case, the defendant-hospital contends that the plaintiff must be deemed to be a beneficiary of the hospital’s charity for a number of reasons, namely: She was a graduate of the defendant-hospital School of Nursing; she obtained all her employment as a nurse at the defendant institution; she was registered at the hospital for service, and by virtue of such registration, she received a preference because she was a IPitkin graduate; and she paid nothing for this registry service which was maintained as a courtesy service by the hospital.

I must hold to the contrary. The plaintiff, despite her familiarity with the hospital, and her almost constant employment as a nurse there, must nevertheless be deemed to be a stranger so far as the hospital’s charity is concerned. It was not charity which prompted the defendant to train the plaintiff and others in the defendant’s School of Nursing, but rather the realization that well-regulated hospitals require the services of competent nurses.

Nor was there any charitable intent in the defendant’s operation of a registry system, free of charge to the plaintiff, whereby the plaintifE (as a graduate of the defendant’s nursing school) obtained a preference when nurses were needed. The defendant well knew the .qualifications and the competency of any graduates of its own school, and the hospital benefited generally when it could provide competent nurses to patients who requested them. It was probably expediency which motivated the operation of the registry system, but it certainly was not charity.

Hospitalization connotes much more than mere treatment at a hospital by a physician. In the case of those patients who possess the necessary means, it also conceives the care and remedial service which can only be administered by skilled and competent nurses.

Considering the definition of a beneficiary which was cited with approval in Kolb v. Monmouth Memorial Hospital, supra, namely, as being “the recipient of another’s bounty; one. who has received a benefit or advantage,” it is clear that the defendant does not bestow any bounty on the plaintiff when it authorizes her to attend a hospital patient. The hospital merely permits her to earn a livelihood under cireumstances which, as heretofore set forth, are mutually advantageous and beneficial.

I conclude that the plaintiff cannot be brought within the rule of exemption of charitable organizations, which has been approved in D’Amato v. Orange Memorial Hospital, supra; Boeckel v. Orange Memorial Hospital, supra, and Bianchi v. South Park Presbyterian Church, supra, and that she was not a recipient of the defendant’s benefactions, but was to the contrary a stranger to the hospital’s charity.

At the time of the happening of the accident, and under the circumstances surrounding the presence of the plaintiff in the hospital, I feel that the plaintiff was an invitee to whom the defendant owed the duty of using ordinary care to keep the hospital premises reasonably safe. The defendant having violated this duty must respond in damages to the plaintiff.

So far as the damages are concerned, it is undisputed that the plaintiff had a hospital bill of $316.53, medical expenses amounting to $334, and twelve weeks’ loss of earnings at $43 per week, amounting to $504. The special damages of the plaintiff, therefore, amounted to $1,044.53. Her injuries, while not extremely severe, were quite painful, and in addition, she has sustained a three per cent, permanent disability. In my opinion, the plaintiff is entitled to an award of $3,500.

Judgment for that amount, therefore, will be entered in favor of the plaintiff, Ida C. Eose, and against the defendant, Ealeigh Fitkin-Paul Morgan Memorial Hospital-Ann May Foundation.

Postea in accordance with this determination may be submitted to the court.


author: Davidson, 0. C. J.

text:
    PAUL CARUSO, PLAINTIFF, v. JOHN HANCOCK MUTUAL LIFE INSURANCE COMPANY, A CORPORATION, DEFENDANT.
    Decided May 13, 1947.

      For the plaintiff, Nathan Rabinowitz.

    For the defendant, McGarter, English & Binder.

   Davidson, 0. C. J.

This case, ‘of novel impression, and involving no disputed questions of fact, was, by stipulation, tried by the court without a jury.

Plaintiff seeks to recover the face amount of a policy of insurance issued to Frank Caruso, his son, on June 18th, 1942, in which policy he was named as beneficiary. Insured, while serving as a soldier in the United States Army, was killed by enemy action on March 26th, 1945, in the Battle of the Bulge during an advance in Brey, Germany.

The policy contained a War and Aviation Kisk Exclusion Provision, the pertinent clauses of which read as follows:

“Anything in this Policy to the contrary notwithstanding, it is hereby provided that death as hereinafter described is not a risk assumed under the Policy and in the event of such death the liability of the Company shall be limited as hereinafter set forth.

“(a) Death while the Insured is serving outside the forty-eight states of the United States, the District of Columbia and the Dominion of Canada in the military or naval or air-forces of any country at war, whether such war be declared or undeclared, or death within six months after the termination of such service from any injury or disease sustained or contracted while in such service.

“(e) Death within two years from the date of issue of the Policy, as a result of war or any cause incident thereto, whether such war be declared or undeclared, while the Insured is outside the States of the United States, the District of Columbia and the Dominion of Canada.

“In the event of any such death, the liability of the Company shall be limited to the amount of the premiums paid on the policy less any dividends apportioned and credited, plus interest at the rate of 3% compounded annually, plus any dividends left to accumulate, plus the reserve on any paid-up policy additions, and less any indebtedness on the Policy existing at the date of death' or when extended term or paid-up insurance may have become effective.”

.The sole question presented for determination is the interpretation of the foregoing clauses. If clause (a) is applicable to the admitted facts, plaintiff’s recovery is limited to the amount of premiums paid, plus dividends and interest, an aggregate of $91.97; whereas, if clause (c) is applicable, defendant is liable for the face amount of the policy.

The authorities are in agreement as to the fundamental rules of construction, for a policy of insurance is simply a contract and its provisions should, of course, be construed as in any other contract. The insurer having a larger part in the selection and terminology of clauses, policies of insurance will be liberally construed to uphold the contract, and conditions in them which create forfeitures will be construed most strongly against the insurer and will never be extended beyond the strict words of the policy. Snyder v. Dwelling-House Insurance Co., 59 N. J. L. 544; 37 Atl. Rep. 1022. This rule of construction, favorable to the insured, clearly can only have application where there is ambiguity, so that the intent is not clear and doubt arises upon perusal. Harris v. American Casualty Co., 83 N. J. L. 641; 85 Atl. Rep. 194; Connell v. Commonwealth Casualty Co., 96 N. J. L. 510; 115 Atl. Rep. 352.

The elemental rule of construction is to arrive at and determine the intention of the parties as demonstrated by the language employed, when read and considered as a whole. Effect, if possible, will be given to all parts of the instrument, and the construction which gives a reasonable meaning to all its provisions will be preferred to one which leaves a portion of the writing useless or inexplicable. Bullowa v. Thermoid Co., 114 N. J. L. 205; 176 Atl. Rep. 596.

It is not a proper function of the court to rewrite or distort a contract under the guise of judicial construction. Chief Justice Gummexe aptly remarked in Kupfersmith v. The Delaware Insurance Co., 84 N. J. L. 271; 86 Atl. Rep. 399:

“The law will not make a better contract for parties than they themselves have seen fit to enter into, or alter it for the benefit of one party and to the detriment of the other. The judicial function of a court of law is to enforce the contract as it is written.”

Application of the established rules to the construction of the clauses in question reveals no ambiguity unless one is to be arbitrarily disregarded and considered wholly meaningless. Interpreted without strain or distortion and assigning to the words their ordinarily and commonly accepted meaning, there seems to be no valid reason why both clauses cannot be effectually enforced without conflict, for the limitation in clause (a) clearly and specifically refers only to those serving in the military, naval or air forces, while clause (c) must of necessity apply to insureds not so serving in the armed forces. The obvious intent of clause (a) is to protect the company against abnormal losses necessarily arising in the military forces as a result of such action, regardless of the length of time the state of conflict might endure.

The exclusion under clause (e) clearly applies, without limitation, to insureds other than those serving in the armed forces, i. e., civilians, and in modern warfare may be invoked in varied and numerous situations. A Y. M. C. A., Salvation Army, or other fraternal or organization worker, Eed Cross nurse, a civilian on either governmental or private mission, one stranded in the zone of hostilities—all are within its purview, and the illustrations might be further extended.

Clause (a) is a specific clause applying only to an insured serving in the armed forces outside of the United States, the District of Columbia and the Dominion of Canada, while clause (e) is general, and the United States Supreme Court in Mutual Life v. Hill, 193 U. S. 551; 24 S. Ct. 538, holds “that a clause which is substantially directed to a particular matter controls in respect thereto over one which is general in its terms.”

So,, too, where there is a repugnancy between a general clause and specific ones, the latter will govern; and if there is no actual repugnancy, taking the words of the contract literally, and from the whole instrument it appears that the purpose of the parties was solely directed to the particular matter to which the special clause or words relate, the general words will be restrained. Williston on Contracts, § 619; 13 C. J. 535. A construction that will void a clause of the contract for repugnancy is to be avoided, if possible. Cf. Restatement on Contracts, § 236; Ehnes v. Hrones, 127 N. J. L. 551; 23 Atl. Rep. (2d) 592.

Clause (a) is a “military status clause,” as distinguished from a “cause of death clause” and in such cases the status of the insured and not the cause of death is the ground upon which the exoneration of the insurer from liability stands. Life and Casualty Insurance Co. v. McLeod, 70 Ga. App. 181; 27 S. E. Rep. (2d) 871.

Stinson v. New York Life Insurance Co., D. C., 69 Fed. Supp. 860, holds to the same effect that

“Where the type of provision is such as to limit the liability of the insurer with respect to the ‘status’ of the insured at the time of his death, it seems clear that the critical question is whether'or not he was in such status at that time,,, regardless of the cause of death.”

The industry of counsel has developed but one case involving construction of clauses comparable to those here in question, and Coit v. Jefferson Standard Life Insurance Co., (Cal. Sup.), 168 Pac. Rep. (2d) 163, construing substantially similar clauses, holds that the “status” rather than the “results” clause should prevail.

jFor the reasons outlined, my conclusion is that the specific clause (a) applies and that in accordance with the terms of the policy, plaintiff is entitled to judgment in the sum of $91.97.


author: Conklin, Commissioner.

text:
    Division of Tax Appeals.
    NEW YORK CENTRAL RAILROAD SYSTEM, PETITIONER, v. FRANK E. WALSH, DIRECTOR OF THE DIVISION OF TAXATION, RESPONDENT. CITY OF JERSEY CITY, PETITIONER, v. FRANK E. WALSH, DIRECTOR OF THE DIVISION OF TAXATION, AND NEW YORK CENTRAL RAILROAD SYSTEM, NEW YORK CENTRAL RAILROAD, NEW JERSEY JUNCTION RAILROAD, RESPONDENT. TOWN OF WEST NEW YORK, PETITIONER, v. FRANK E. WALSH, DIRECTOR OF THE DIVISION OF TAXATION, AND NEW YORK CENTRAL RAILROAD SYSTEM, RESPONDENT.
    Decided May 19, 1947.
    Por the New York Central Railroad, John A. Hartpenoe.

    Por the City of Jersey City, Charles A. Rooney (Joseph C. Glavin, of counsel).
    Por the Town of "West New York, Samuel L. Hirschberg {Anthony J. Armore, of counsel).
    Por the Township of Weehawken, John N. Platoff.

    Por the State of New Jersey, Walter D. Van Riper, Attorney-General, and Benjamin Taub and Benjamin Van Tine, Deputy Attorneys-General.
   Conklin, Commissioner.

Complaints were filed hv the New York Central Railroad System, the City of Jersey City, and the Town of West New York against the assessment as made by the Director of Taxation for the year 1945. The several companies comprising the New York Central Eailroad System appealed from the assessment of their properties as made by the Director and further appealed from the assessment of the floating equipment, which included barges, canal barges, car floats, derricks, dredges, ferries, scows, lighters, pile drivers, tugs, &c., used in marine freight. The Town of West New York and the City of Jersey City complained that the assessments were too low.

In the proofs offered, it was uneontradicted that Pier 7, shown in Schedule A of the complaint filed by the Town of West New York as Item No. 9, was under-assessed by the Director of Taxation. The testimony of witnesses produced by both the municipality and the railroad indicated that the value of Pier 7 and the elevator thereon was $500,000. (See Pennsylvania Railroad v. Frank E. Walsh, Director of Taxation, Department of Taxation and Finance, 53 Atl. Rep. (2d) 156, the opinion of the Division of Tax Appeals on the assessment of the Pennsylvania Eailroad for the year 1945.)

Por the reasons outlined in the opinions filed in the Pennsylvania Eailroad ease, supra, and in the other railroad cases for the year 1945, Erie Railroad System v. Frank E. Walsh, Director of Taxation, Department of Taxation and Finance, 53 Atl. Rep. (2d) 155; Delaware, Lackawanna and Western Railroad v. Walsh, 53 Atl. Rep. (2d) 153; Lehigh Valley Railroad v. Walsh, Atl. Rep. (2d) ; Pitney (New Jersey Central Railroad) v. Walsh, 25 N. J. Mis. R. 196; 51 Atl. Rep. (2d) 871, the appeals are hereby dismissed, with the exception of paragraph 9, Schedule A of the complaint of the Town of West New York, which appeal is granted.

Judgments have been entered in accordance with the foregoing conclusions.


author: K/reamee, Commissioner.

text:
    Division of Tax Appeals.
    ANNA POLL, PETITIONER, v. CITY OF PLAINFIELD, RESPONDENT.
    Decided May 19, 1947.
   K/reamee, Commissioner.

This is an appeal from a judgment of dismissal by the Union County Board of Taxation of a petition for a reduction of a real property assessment levied by the City of Plainfield for the year 1946.

The record reveals that the petition of appeal to the Division of Tax Appeals was deposited with the postal authorities for mailing on December 16th and was received at the statutory office of the Division on December 18th.

Since a failure to file a petition of appeal within the period prescribed by statute is a fatal jurisdictional defect, it is within the province of this body to determine, sua sponte, whether or not the subject appeal has been filed within time. Singer Manufacturing Co. v. City of Elizabeth, New Jersey Tax Reports (Supp. 1941), 104, see, also, City of Hoboken v. Kelly, Tax Commissioner, 21 N. J. Mis. R. 193; 32 Atl. Rep. (2d) 710; City of New Brunswick v. Upsilon Chapter, &c., 18 N. J. Mis. R. 147; 11 Atl. Rep. (2d) 430.

R. S. 54:2-39; N. J. S. A. 54:2—39, of our tax statute reads in part, 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, and the division shall proceed summarily to hear and determine all such appeals and render its judgment thereon as soon as may be.”

November 15th is the date fixed for final decision by the county boards (see R. S. 54:3-21; N. J. S. A. 54:3-21, and R. S. 54:3-26; N. J. S. A. 54:3-26). Under R. S. 54:2-39; N. J. S. A. 54:2-39, should the date of publication of judgment be “earlier” than November 15th, appellants are compelled to file their petitions within one month of .the earlier date but clearly the last possible date for filing in any ease cannot extend beyond December 15th.

As the record is barren of anything to indicate the date of publication of the entry of the county board judgment, we will proceed to determine whether the within appeal was filed on or before December 15th. For if it cannot be considered to have been filed on or before that date, then it must be dismissed regardless of when the entry of the county board judgment was published.

December 15th, 1946, fell on a Sunday and under the decision of our New Jersey Supreme Court in Ettrick v. State Board of Tax Appeals, 12 N. J. Mis. R. 432; 172 Atl. Rep. 365, petitioner herein had until Monday, December 16th, to file her petition. In the Ettrick case the petition was mailed to the clerk of the board and received by him on December 16th, December 15th having been a Sunday. In the case at bar, however, the -petition was deposited in the mail on the last day for filing, i. e., December 16th, but was not received at the office of the Division until after the period for filing had expired. Under these circumstances, the prevailing view in jurisdictions throughout the country is that such filing is not within time.

In Pendry v. Brennan, 31 Idaho 54; 169 Pac. Rep. 174, the last, day for entering an appearance in a law action fell on May 17th. On that dato the defendant's attorney mailed a "demurrer” to the clerk of the court, who did not receive it until after that date, at which time a default judgment had already been entered. On a motion to reopen the judgment the court stated:

"This contention (defendant's) is to the effect that when this demurrer to this complaint was deposited in the post office on the 17th day of May, the filing was complete within the meaning of the law. If the contention were confined to the service of the demurrer by mail, the contention of the appellant might be conceded; but as we understand it, a different rule applies with reference to the filing of a paper. To file the demurrer it must be deposited with or placed in the custody of the proper officer whose duty it is to place his filing mark upon it, and it is incumbent upon the party filing to see that the paper is so deposited or placed in the custody of such officer before he may claim that it is properly filed. * :¡s s|s»

In Hewitt v. International Shoe Co., 115 Fla. 508; 155 So. Rep. 725, the last date for filing a petition to reopen a judgment was June 11th of the particular year. The petition was placed in the mail on ,lune 11th but was not received by the clerk of the court until June 12th. It was held that the petition was not filed within time, the court stating:

tea.- s^ as rp^g petition was not filed in contemplation of law until it was actually received and ‘filed’ by the clerk as sis as on j^g 12th * * * even though it was mailed on June 11th, properly addressed to the clerk and forwarded by air mail, special delivery, with the intention that it should be received and be filed by the clerk on June 11th instead of on June 12th.

“Papers which the law requires to be filed on or before a certain day * * * are not legally filed by merely placing them in the United States mail during the period of time permitted for filing them. Such papers should not only be mailed within the time allowed by law but should be mailed sufficiently early to be received at the office of their destination before the time allowed by law expires for the filing of such papers.”

In re State, ex rel. Attorney-General, 185 Ala. 347; 64 So. Rep. 310, 311, involved a factual situation similar to that in the Hewitt case. It was held:

“* * * The unqualified requirement of the rule is that application for rehearing must be * * * filed within the period stipulated. The mail must and could only be the agent or agency of the party applying for rehearing. If there be delay in the transmission * * * however free from fault * * * the applicant may have been, it cannot be said that he has complied with this * * * provision * * *. This application for rehearing was so seasonably and properly posted as that in due course it should have reached the clerk on July 4th, 1913, the last day * * * on which it could have been seasonably filed with the clerk. It did not reach him within time.”

The foregoing rule has been similarly applied in Muskingum Watershed Conservatory Dist. v. Steinmetz, 57 Ohio App. 502; 15 N. E. Rep. (2d) 164; State, ex rel. O'Hearn v. Erickson, 152 Minn. 349; 188 N. W. Rep. 736; City of Maud v. Tulsa Rig Reel and Manufacturing Co., 165 Okla. 181; 25 Pac. Rep. (2d) 792; Wampler v. Snyder, 66 Fed. Rep. (2d) 195; Poyner v. Commissioner of Internal Revenue, 81 Id. 521; See, also, United States v. Lombardo, 241 U. S. 73; 36 S. Ct. 508; Gates v. State, 128 N. Y. 221; 28 N. E. Rep. 373; Sweeney v. City of New York, 225 N. Y. 271; 122 N. E. Rep. 243; Cheesman v. Cheesman, 236 N. Y. 47; 139 N. E. Rep. 775; Moores v. State, 4 Neb. 781; 96 N. W. Rep. 225; Tyson v. United States, 76 Fed. Rep. (2d) 533; Commonwealth v. O'Bryan Utley & Co., 153 Ky. 406; 155 S. W. Rep. 1126; In re Gorski, 227 Mass. 456; 116 N. E. Rep. 811; Stubbs v. Mendel, 148 Ga. 802; 98 S. E. Rep. 476. We are cognizant of the hardship that may be visited upon this appellant but we are constrained to find that the petition has not been filed within time and must be dismissed.

So ordered.