author: Habtshobne, C. P. J.

text:
    Essex County Court of Common Pleas.
    JUNIUS JORDAN, PETITIONER-APPELLEE, v. LINDEMAN & CO., INC., RESPONDENT-APPELLANT.
    Decided June 6, 1945.
    Eor the petitioner-appellee, John A. Laird.

    Eor the respondent-appellant, Foley & Francis (Gerald T. Foley).

   Habtshobne, C. P. J.

Respondent appeals from the Bureau’s award to petitioner on the grounds (1), that respondent is not a “contractor” within the meaning of the statute R. S. 34:15—79; N. J. S. A. 34:15—79, and that (2), petitioner had not earned any wages before the injury occurred.

It is undisputed that respondent, a coal dealer, had customarily engaged one Pentimone to help him with the latter’s trucks in delivering coal to customers, some of which could be directly chuted from the wagon to the customers’ coal bins, others of which had to be carried, and that the customers paid an additional charge of fifty cents for every “carry.” Pentimone used a five-ton truck and was having some difficulty on a ehuting job when he informally arranged for petitioner to help him. Petitioner’s claim is that the arrangement was for Pentimone to pay him $3 a day. Pentimone differs, and the Bureau found as a fact that the arrangement was as Pentimone said to Jordan, “Well, I have some carries. I will pay you. You get fifty cents a ton for carrying * * *. If you will help me, I will help you cany coal, and whatever you make, it will be yours” (record, page 23). Pentimone also testified that any other work Jordan did for him was to be done in “consideration” for Jordan being paid for the carry jobs (record, page 49).

So Jordan went with Pentimone to Lindeman’s yard and helped him in his deliveries. But before Jordan had delivered any “carry jobs,” though while he was in the act of helping load a “carry job,” Jordan was hurt.

Since Pentimone, Jordan’s employer, was not an employee of respondent Lindeman but was an independent contractor, under ordinary circumstances, had Pentimone carried workmen’s compensation insurance as required by the statute, Jordan could not have recovered against Lindeman, the general contractor. But since Pentimone had not taken out insurance, the Bureau held Lindeman responsible under the terms of the above section of the act providing that “Any contractor placing work with a subcontractor shall, in the event of the subcontractor’s failing to carry Workmen’s Compensation insurance as required by this article, become liable for any compensation which may be due an employee or the dependents of a deceased employee of a subcontractor.” R. S. 34:15-79; N. J. S. A. 34:15-79.

Respondent claims, however, that this section only applies to building contracts, relying on Mitten v. O’Rourke, 115 N. J. L. 177; 178 Atl. Rep. 797; Gerber v. Sherman, 15 N. J. Mis. R. 295; 191 Atl. Rep. 285; Priby v. Lee, 15 N. J. Mis. R. 292; 191 Atl. Rep. 105. True, in each of these cases a building contract was involved, but the point of such decisions was not that the statute applied to contracts concerning realty as distinguished from contracts concerning personalty, but that the owner of the land was not the "contractor” within the meaning of the above statute. This is clearly so by definition. A contractor is "One who formally undertakes to do anything for another; specifically, one who contracts to perform work, or supply articles * * *; stone contractor, road contractor, coal contractor, &c.” Webster’s New International Dictionary (2d. ed.). Clearly, one who pays for the work done or articles supplied does not “undertake to do anything for another,” except to write a check. But not so with one engaged in the arduous duty of delivering and carrying coal.

Indeed, were the coal, which was being loaded by Jordan at the time he was hurt, intended for use in heating a building in winter, so that the workmen might complete or repair it under a contract, Jordan could recover even under respondent’s contention. Surely, the fact that the coal in question might perchance have been intended for use in the ordinary heating of a building, cannot suffice to take the situation out of a statute which specifically covers "any contractor.”

Respondent’s contention indeed would largely defeat the very purpose of the statute. This is to protect an employee, whose direct employer violates the New Jersey policy by failing to take out compensation insurance, by permitting such employee to recover from the general contractor, who gets the direct benefit of, and is ultimately paid for, the work of such employee. This is no hardship on the general contractor, who gets the benefit of the work, and who could, and should, see that the work is sublet to responsible subcontractors who will comply with tho policy of the state. In effectuating this statutory purpose it makes no difference whether the work in question .involves realty or personalty.

The further question remains whether petitioner has proven his “daily wages” upon the basis of which his compensation is to be calculated. B. 8. 34:15-12; N. J. 8. A. 34:15'-12. These wages “mean the money rate at which the service rendered is recompensed under the contract of hiring in force at the time of the accident.” R. 8. 34:15-37; N. J. 8. A. 34:15-37. Where an employee is injured in an accident arising out of and in the course of his employment, it is the “rate” as fixed in the “contract of hiring” which counts, not the actual money which has been paid the employee, nor the amount of money which he may have in fact earned during the part of the day which preceded the accident. If it were the latter, we wonld reach the absurd result that the disability compensation payable to the employee would differ, depending upon whether the accident occurred in the early part of the day, in the case of a daily wage, or in the latter part of the day.

That this “rate” was fixed in the contract of hiring here and that the employee was engaged in the eonrse and scope of the employment at the time he was hurt, clearly appears from the evidence. While Jordan and Pentimone disagree as to the terms of the contract, they agree as to the fact that Jordan was actually engaged in working for Pentimone at the time he was injured and Pentimone says the work he was then doing was “done in consideration of his being paid for the carry job.” (Record, page 49.) Indeed, the truck Jordan was then loading was “a carry.” (Record, page 20.) Hence, the employee was hurt in an accident arising out of and in the course of his employment. Assuming Pentimone’s version of the “rate” to be correct, as appellant claims, Jordan was to he paid at the rate of fifty cents per ton carried. The track which Jordan was then load ing for this “carry job” held five tons. So, had Jordan’s accident not prevented him from completing the work he had started, he would have earned $2.50 on that particular load; and Pentimone adds that “a load or so” was to he carried that afternoon.” (Record, page 48.)

The finding that Jordan’s wages were fixed at a rate which would have netted him $3 for this, the first day of his employment, had not the accident intervened during the day, is therefore not an over-estimate. That it was in fact fair is corroborated—though corroboration is unnecessary, since the rate basis is that relied on by appellant—by Pentimone’s own earnings on previous carries, as well as by Jordan’s version that the contract was to pay him $3 a day straight. In any aspect then, the basis for the award is clear and fair. As for the possibility that Pentimone might have carried some coal himself, the burden of proving any such deduction from petitioner’s wages rested on appellant. It cannot be heard to complain that same may have been of a speculative character.

The order of the Bureau is affirmed, and a determination may be entered accordingly.


source: Caselaw Access Project

author: Waesche, President.

license: Public Domain

text:
    State Board of Tax Appeals.
    1943 Assessment. SOCONY-VACUUM OIL CO., INC., PETITIONER, v. BOROUGH OF EDGEWATER, RESPONDENT; 1944 Assessment. BOROUGH OF EDGEWATER, PETITIONER, v. SOCONY-VACUUM OIL CO., INC., RESPONDENT.
    Decided June 5, 1945.
    For Socony-Yaeumn Oil Co., Inc., J. Yincent Barnitt.
    For the Borough of Edgewater, Milton T. Lasher.

   Waesche, President.

For the year 194-3 the assessor of the Borough of Edgewater in the County of Bergen levied an assessment against oil owned by the Soeony-Yaeuum Oil Co., Inc., a corporation of the State of New York. For the year 1944 he levied another assessment against oil owned by said corporation. The assessment for each of these two years was appealed to the Bergen County Board of Taxation, which Board sustained the 1943 assessment, but set aside and canceled the 1944 assessment. The oil company appealed to the Division of Tax Appeals the judgment of the County Board on the 1943 assessment, and the Borough appealed the judgment on the 1944 assessment. The two appeals were heard together by the Division of Tax Appeals, and this opinion deals with both appeals.

The facts relating to the property assessed are undisputed, and they are the same for each assessment. The single issue in dispute is whether the oil was in continuous transit through New Jersey from one state to another state. It is contended1 for the Borough of Edgewater that its journey terminated in' Edgewater.

Socony-Vacuum Oil Co., Inc., owns an oil refinery situated' on the East River in King’s County, New York, where it processes high-octane gasoline from a partially refined crude oil, known in the trade as cracking stock. The oil is shipped to the refinery on the East River from Texas and Oklahoma. Prior to the war, this cracking stock was carried in tankers by sea from Houston, Texas, to the company’s plant on Long Island. During 1942 and 1943 so many oil tankers were being sunk along the Atlantic seaboard by enemy submarines that the oil company was forced to discontinue the transportation of oil by sea from Texas to New York. At this time the United States Army and Havy were in urgent need of high-octane gasoline, and they took the entire output of this gasoline manufactured by the Socony-Vacuum Oil Company at its aforesaid King’s County refinery. Since the flow of this cracking stock from Texas to New York was effectively shut off by sea, the Socony-Vacuum Oil Company’s only recourse was to ship the stock by rail in tank cars. The tank cars carrying this product from the Texas and Oklahoma oil fields arrived in New Jersey on the west bank of the Hudson River, and ordinarily would have been taken by car floats across the river to New York. But the abnormal increase in traffic moving in New York Harbor due to the war created a demand for car floats in excess of the number available. Consequently the United States Office of Defense Transportation requested the Socony-Vacuum Oil Company to empty the tank ears bringing cracking stock for their East River plant immediately upon their’ arrival at tide water in New Jersey,.! so that these cars could be returned as quickly as possible to the oil fields for more oil. ■

In June, 1942, the Socony-Vacuum Oil Company leased from the Valvoline Oil Company for one year, starting June 15th, 1-942, one 55,000-barrel, stationary oil tank located in Edgewater at the plant of the Valvoline Oil Company. It was agreed that said tank would be used exclusively by the Soeony-Vacuum Oil Company for the purpose of unloading railroad tank cars carrying cracking stock from Texas and Oklahoma for the manufacture of 100-octane aviation gasoline. It was also agreed that the oil would be transferred from said tank to oil barges for movement to New York, except for small quantities that may be taken in railroad tank cars. The Soeony-Yacuum Oil Company had estimated that it would require facilities for unloading approximately thirty railroad tank ears per day, and the Yalvoline Oil Company agreed that it would furnish those facilities. In June, 1943, the aforesaid lease was renewed for another year.

As the oil arrived by rail in tank cars at Edgewater, New Jersey, it was immediately pumped into this 55,000-barrel tank, and the cars were then free to return at once to the oil fields for refilling. Erom the 55,000-barrel tank in Edge-water the oil was transferred almost immediately (within twelve to forty-eight hours) to oil barges, in which it was taken to the company’s refinery in New York. The oil was not separated or treated in New Jersey; it was not sold in New Jersey. It was not sold until after it had been processed in New York.

During the transition of this oil from railroad tank eaT to oil barge, some portion of it was assessed for taxes for the years 1943 and 1944 by the assessor of Edgewater as it passed through the 55,000-barrel tank.

In the ease of Lehigh and Wilkes-Barre Coal Co. v. Junction, 75 N. J. L. 922, 927; 68 All. Rep. 806, the Court of Errors and Appeals held that “To obtain the protection of the commerce clause of the federal constitution, there must be a continuous movement of the merchandise from one state to another in the actual course of delivery, but if that movement is interrupted by natural causes beyond the control of the shipper, a temporary halting will not subject the property to local taxation.” The New Jersey Supreme Court held in the case of State, Detmold & Cox, Pros., v. Engle, Receiver, &c., 34 N. J. L. 425, 427, that “Property in transit through the state * * * is not to be considered as having a situs within such state for purposes of taxation.” And in the case of State, Lehigh and Wilkesbarre Coal Co., Pros., v. Carrigan, 39 Id. 36, our Supreme Court held that “The transportation of property is a constituent part of commerce, and a tax upon such property in its transportation from state to state, is a regulation of commerce among the states, and cannot constitutionally be imposed under state authority.”

The assessments made by the assessor of the Borough of Edgewater,. which are the subject-matter of these appeals, were invalid. The oil levied upon was in transit through the state and not subject to taxation in this state. The judgment of the Bergen County Board of Taxation sustaining the 1943 assessment here under appeal will be reversed and the assessment canceled. The judgment of the Bergen County Board of Taxation canceling the 1944 assessment will be affirmed, and the appeal of the Borough of Edgewater will be dismissed.


author: Oliphant, S. C. C.

text:
    STATE OF NEW JERSEY, PLAINTIFF, v. ERIE RAILROAD COMPANY, A CORPORATION OF NEW YORK, LEHIGH VALLEY RAILROAD COMPANY, A CORPORATION OF PENNSYLVANIA, NEW YORK CENTRAL RAILROAD COMPANY, A CORPORATION OF NEW YORK, THE DELAWARE, LACKAWANNA AND WESTERN RAILROAD COMPANY, A CORPORATION OF PENNSYLVANIA, READING COMPANY, A CORPORATION OF PENNSYLVANIA, AND THE CITY OF JERSEY CITY, DEFENDANTS.
    Decided June 11, 1945.

      Sbr the plaintiff, Walter T). Vcm Riper, Attorney-General, and Benjamin V. Van Time, Assistant Attorney-General.

      For the defendant railroads, Edward A. MarTcley and Maximilian M. Stallman {Raymond J. Lamb, of counsel).
    For the defendant City of Jersey City, Charles A. Rooney {Charles Hershenstein and Milton B. Conford, of counsel).
   Oliphant, S. C. C.

By virtue of agreement between all parties these cases were tried by the court, sitting without a. jury. Stipulations of fact were entered into and there exists • at present no controversy as to any fact. It was further agreed and stipulated that a finding in the case wherein the Erie Bailroad Company is defendant would apply with equal force and effect to all of the defendants except as to the bankruptcy proceedings of that company affecting its payments.

It was further stipulated that should the court determine that there shall be any additional sums due the plaintiff, the state will then have the opportunity to offer testimony before i ■the court, or a master, to determine the amount thereof.

The complaint is in five counts, one against each defendant, ) that against the Erie Bailroad Company being contained in the first count. It is filed under the authority of R. S. 54:27—4; N. J. S. A. 54:27—4, and seeks the recovery in excess of $12,000,000 claimed to be owing to the state by the defendants.

By order of the late Mr. Justice Porter dated November 28th, 1944, the City of Jersey City was made a party defendant. The facts succinctly stated are as follows:

The defendant did each year from 1932 to 1940, inclusive, make partial payments, subsequent to default, on the taxes' levied on its property and contested the remainder.

When these payments were made, the defendant directed that they be applied to principal taxes, not on interest thereon. The state through its Comptroller accepted them as such, issued receipts therefor, and so credited them on its books of account. The state concedes that its Comptroller accepted and used these payments made by the defendant knowing that they were intended by it as payments on account of principal.

In several instances the state through its agents, the Comptroller, Treasurer and Attorney-General by various documents sot forth that the payments had heen accepted as such against principal, particularly in proceedings in the federal courts and in the information suits filed by the Attorney-General in the Court of Chancery, which are hereafter referred to, also on occasion when specific parcels of land were sold by the defendants.

Most of the payments were in two categories. (1) Those made pursuant to orders of the United States District Court in connection with their grant to the defendant of injunctive relief, and (2) those made by the defendant at the conclusion of the 1932-1933 litigation by the denial of a writ of certiorari by the United States Supreme Court and the filing of a petition by the Attorney-General under R. S. 54:28-1; N. J. S. A. 54:28-l.

On July 22d, 1941, what has been termed “The First Kailroad Settlement Act” was enacted into law. Laws of 1941, chapter 290, N. J. S. A. Append. A: 4-7.1, et seq. In that act, it was provided that payments made thereunder should be accompanied by waiver documents and other papers in such form as the Attorney-General might require. He never approved or prescribed any such forms. The act further provided that interest on delinquent taxes be at the rate of three per cent, per annum instead of one per cent, per month as previously provided for. R. 8. 54:27-4; N. J. S. A. 54:27-4.

Notwithstanding the Attorney-General never specified or approved any waiver or any forms the defendant delivered to the Comptroller on August 4th, 1941, its certified check in the sum of $4,822,603.17 in payment of what it assumed to be its full tax delinquency with interest at three per cent, from December 1st, 1940, to August 4th, 1941, and same was receipted for and retained but not deposited or used by the state. On September 4th, 1941, the Attorney-General filed a civil information in the Court of Chancery challenging the constitutionality of chapter 290, Laws of 1941.

On May 21st, 1942, chapter 241, Laws of 1942, N. J. S. A. Append. A: 4-7.1, et seq., became effective. This legislation has been termed “The Second Eailroad Settlement Act” and on the same day the Attorney-General filed a supplemental information and obtained a restraining order restraining the State Treasurer from accepting or depositing any cheek from any railroad taxpayer. As heretofore stated the Treasurer had not deposited or collected the check delivered to him on August 4th, 1941.

The final decree of the Court of Chancery on said information was filed September 28th, 1943, which declared the “Settlement Acts” unconstitutional. Wilentz v. Hendrickson, 133 N. J. Eq. 447; 33 Atl. Rep. (2d) 366. This was affirmed by the Court of Errors and Appeals. Wilentz v. Hendrickson, 135 N. J. Eq. 244; 38 Atl. Rep. (2d) 199. Thereupon on July 11th, 1944, the defendant delivered to the Comptroller its checks, which with the checks theretofore delivered on August 4th, 1941, represented what it assumed to be its full tax delinquency, with interest thereon at the rate of one per cent, per month computed to July 22d, 1941, and at three per cent, after that date. Said interest payments at three per cent, per annum were computed on the basis of crediting all payments or tenders made on account of taxes subsequent to July 22d, 1941, as of the date of such tenders or payments with no interest computed or paid thereafter on the amount of such payments. i

The payments were accepted without prejudice to the state claiming that the defendant owed more in principal than was covered by the payments, due to the claim that prior payments should have- been credited first against interest and then against principal and that the payments should be credited as of July 11th, 1944, rather than the date on which the cheeks had been delivered to the State Treasurer. Thereafter on July 15th, 1944, final payments were made, the state accepting same without prejudice to its claiming more due in principal by reason of previous application to principal rather than interest and as to the rate of interest applicable.

The issues presented for determination by the court are:

I. Should the partial payments made by defendant on account of delinquent principal taxes made between December 1st, 1932, and July 22d, 1941, be credited against such principal taxes to the exclusion of the interest due thereon and if not, how should they be applied ?

II. Were the payments made by the defendant pursuant to and subsequent to the passage of the “Settlement Acts” payment of taxes and valid and sufficient to stop the running of interest on the principal taxes as represented thereby?

III. Is the interest rate computable subsequent to July 22d, 1941 (the effective date of the first Settlement Act) to bo calculated at the rate of three per cent, per annum as provided for therein or at the rate of twelve per cent, per annum pursuant to the provisions of R. S. 54:27-4; N. J. S. A. 54:27-4?

IY. Should the payments made by the defendant in July, 1944, be appropriated to principal and interest in the amounts designated by it, notwithstanding that on said date it may have owed more in interest than it was then purporting to pay; or should such payments be applied in some oilier manner ?

I.

The situation here presented is not that of the usual debtor and creditor relationship. A tax, in its essential characteristics, is not a debt, nor in the nature thereof. It is an impost levied by authority of government upon its citizens or subjects. It is not founded on contract or agreement. It operates in invitum,. It does not automatically carry interest. Camden v. Allen, 26 N. J. L. 398. Taxes and interest are distinct things and a tax not being a debt in the legal sense does not automatically bear interest, if delinquent, unless the legislature so provides. Interest does not inhere in the tax as a legal incident. It is not taxation but,a punitive sanction for compelling timely payment. It is compensation for delay in payment. Burlington County v. Martin, 128 Id. 203; 25 Atl. Rep. (2d) 17.

Accrued interest as well as the tax becomes one indivisible lien and merges in the debt due from the company to the state. Wilentz v. Hendrickson, 133 N. J. Eq. 447 (at p. 466); 33 Atl. Rep. (2d) 366. Delinquent interest was compensation which together with the unpaid principal taxes merged and constituted the debt. Wilentz v. Hendrickson, 135 N. J. Eq. 244 (at p. 249); 38 Atl. Rep. (2d) 199.

The debt or debts owed by the defendant did not consist of several debts, except as for each tax year, nor a debt consisting of more than one incident. Principal and interest constitute for each tax year a single tax debt. The accrued delinquent interest was rather a bookkeeping item of the debt.

While R. S: 54:27-4; N. J. S. A. 54:27-4, provides for and permits partial payment of taxes, it cannot be read to imply that partial payments can be made on principal while interest thereon is owing.

The first question presented is, has the debtor the absolute right to dictate that a payment shall be applied to principal to the exclusion of the interest accrued and due thereon?

This problem is one of first impression in this state.

The intervening defendant cites Holcomb v. Holcomb, 74 N. J. L. 257; 65 Atl. Rep. 855, and puts great stress thereon in support of its argument. An examination of the file discloses that the question here involved was not argued or considered by the court in that case.

The defendant railroad company relies strongly on Benson v. Reinshagen, 75 N. J. Eq. 358; 72 Atl. Rep. 954, 955. There the court said “The law undoubtedly is that the debtor may- direct the application and if the creditor accepts the money, even though he does not assent to such application, he is bound to make it if he receives the money under such direction,” citing 2 Am. & Eng. Cycl. L. (2d ed.) 435.

There can be no denying that that is the law but as stated in that opinion it is a too narrow and restricted exposition thereof. The same rule is found in 30 Cyc. (at pp. 1228, 1231).

There is no absolute right in the debtor, with no qualifications or restrictions, to have the payment credited to principal to the exclusion of interest. The acceptance of a payment with' directions to apply such to principal constitutes a contract or agreement between the parties wherein they treat the interest as a demand separate and apart from the principal.

This theory, which I consider the proper rule, is best illustrated by the opinion in the case of Kann v. Kann, 259 Pa. 583; 103 Atl. Rep. 369. The court there said: “Ordinarily, interest is considered as incidental to or forming an. integral part of the principal debt upon which it accrues and not as a separate demand, but, when a payment is made on account of the debt there is nothing to prevent the parties from mutually treating interest as a demand separate and apart from the principal, so as to appropriate the payment to the latter rather than the former, if they see fit—a debtor in making a payment may demand its application to principal as against interest, and if it is accepted without immediate protest, such acceptance will be tantamount to an agreement to apply the money as directed, the creditor being bound accordingly-—such circumstances constitute a contractual situation, and the court will not set aside agreements unless they are without consideration, illegal against public policy, made without contractual capacity, or induced by fraud, accident or a mistake of fact.”

It was held in Tooke v. Bonds, 29 Texas 420, that where there is a single debt consisting of principal and interest the debtor could not, as a matter of right appropriate partial payments to the extinguishment of the principal in advance of the discharge of the interest but there is no reason why this might not be done by the mutual assent of the parties.

The same view was taken by the court in the case of In re: Cunningham’s Estate, 311 Ill. 311; 142 N. E. Rep. 740, where the court said: “Where the claim of the debtor is a single debt, consisting of principal and interest the debtor cannot, as a matter of right, appropriate a partial payment to the extinguishment of the principal in advance of the discharge of the interest.”

The Supreme Court of Montana in Monidah, v. Hruze, 62 Mont. 444; 205 Pac. Rep. 232, in affirming a lower court decision said: “After an exhaustive review of the authorities, the court concluded that the debtor may stipulate at the time of making payment that the eredit shall be given upon the principal, even though there is interest due, and, if the creditor accepts without protest, such acceptance will be iantamcnmt to an agreement to apply the money as directed.” See, also, Cohen v. Chicago, 377 Ill. 221; 36 N. E. Rep. (2d) 220.

The law favors the payment of interest first. 40 Am. Jur. 794; 96 Am. St. Rep. 69.

In Gwynn v. Whittakers’ Adm’r, 1 Har. & J. (Md.) 754, it was said "Money paid by the debtor must be first applied to extinguish the interest, and the surplus, if any, to consume so much of the principal, and the debtor has no election to make a different application.”

If the payments made by the debtor were not voluntary, as is claimed by the state and intervening defendant there would, of course, be no right of application under any circumstances, but in view of the foregoing conclusions I have not deemed it necessary to determine whether or- not some or all of the payments were voluntary or involuntary.

Heither the Comptroller, the Treasurer or the Attorney-General had authority or power to enter into contracts on behalf of the state. Their authority is circumscribed and limited by statute. These can be searched in vain for any delegation of contract power with reference to the application of partial payments on taxes due.

R. S. 52:19—11; N. J. S. A. 52:19—11, contains the only power given the. Comptroller upon which the defendant could rely. That reads: "The Comptroller shall examine, audit, adjust and settle all accounts due to or presented against the state and certify the amounts adjusted or allowed, to the Treasurer after receipt or payment.”

There was nothing between the state and the defendant to settle. There was no controversy as to the amount of delinquent principal taxes due or the amount of interest due thereon. The sole question confronting the Comptroller was as to whieh item the payments should be applied. This was a legal rather than an administrative problem. He had no choice. His clear duty was to protect the interests of the state to the fullest extent and to obtain for it the maximum revenue. It cannot be said that an agent of the state has authority to contract to the detriment, disadvantage or injury of his principal without clear delegation of such authority.

What the state’s agents did was to, in effect, annul or cancel a financial obligation due from the defendant to the state. This tbe legislature could not do, much less its agents. Wilentz v. Hendrickson, supra.

A public officer ean make for the government he represents only such contracts or agreements expressed or implied as he is authorized to make. Whiteside v. United States, 93 U. S. 247; 7 Wall 666; Fort Worth Cavalry Club v. Sheppard, 125 Tex. 399; 83 S. W. Rep. (2d) 660.

“Every public officer is bound to perform his duties—primarily for the benefit of the public.” 43 Am. Jur. 78. In 46 Corp. Jur. 1032, the following rule is stated: “Statutes delegating powers to public officers must be strictly construed, and all persons dealing with public officers must inform themselves as to their authority, and acts which are within the apparent but in excess of the actual authority of officers will not bind the government which they represent, unless ratified by it.”

As for the Attorney-General, nothing that he did can be construed as contracting or agreeing on behalf of the state as to the appropriating of tax payments to principal rather than interest. If he had done so it was beyond the scope of his power and authority which he derives from R. S. 52:17-2; ffl. J. S. A. 52:17-8. What actions he may have taken in other proceedings could not bind the state in this suit. What he did in most instances was the result of information furnished him by the Comptroller’s office based upon its theory of computation.

The defendant knew or should have known the limitation of the powers of the state’s agents. The rule is stated as follows in 59 Corp. Jur. 173: “The powers of state officers being fixed by law, all persons dealing with such officers are charged with knowledge of the extent of their authority or power to bind the state and are bound at their peril to ascertain whether the contemplated contract is within the power conferred.”

It was against public policy for an officer of the state to fail to obtain every tax dollar and all the interest thereon to Y/hich it was legally entitled. It was against public policy for the Comptroller to have attempted to relieve the defendant of the statutory pressure to make full payment of its taxes, consisting of the continuous running of interest against principal until that interest was paid. 17 C. J. S., Contracts, § 811, states: “As applied to a contract to which the state, through any of its duly authorized agents becomes a party, public policy has been invaded when there lurks in the contract a mischievous tendency so as to be injurious to the interests of the state.”

The defendant asserts and pleads that the state by reason of its course of conduct is estopped now from asserting and claiming its present method of retroactive re-calculation and re-application of the amounts and payments.

To prevail in this defense the defendant must show that the doctrine of equitable estoppel or estoppel in pais can be invoked against the state.

The collection and enforcement of taxes is a strict governmental function and' vitally affects the public interest.

The law is well settled that estoppel must not be invoked against a state when it is acting in its governmental or public capacity, 31 C. J. S., Estoppel, 404, § 138, and that the government is not estopped by previous acts, conduct or mistake of its agents with reference to the determination of tax liabilities, 31 C. J. S., Estoppel, 434, § 147, and cases cited therein. 49 Am. Jur. (at p. 299), states the law to be “The state cannot be estopped by the unauthorized acts of its officers,” citing Chicago, St. P. M. & O. R. Co. v. Douglas County, 134 Wis. 197; 114 N. W. Rep. 511.

It was held in Mullen v. State, 114 Cal. 578; 46 Pac. Rep. 670, that the state is not estopped from denying the validity of a contract made without authority even though the .contractor has in good faith performed services under the contract, since he must at his peril know the authority of those who seem to act for the state. “The government is never estopped, as an individual or private corporation may be, on the ground that the agent is acting under an apparent authority which is not real; the conclusive presumption that his powers are known rendering such a consequence impossible.” So here the defendant acted at its peril in its dealings with the Comptroller.

Even if the doctrine of estoppel could, in a proper ease, be invoked against the state the factual situation presented here would not be sufficient upon which to do so. The necessary elements are not present. The defendant did not rely on what the Comptroller did. That official did what he was asked to do by the defendant. Nothing that he did was intended to influence the conduct of the defendant in the amount or manner of its payments. Its acts were entirely self-determined. The essential element of reliance by the defendant on the acts of the state’s agent has not been shown. New Jersey Suburban Water Co. v. Harrison, 122 N. J. L. 189 (at p. 194); 3 Atl. Rep. (2d) 623.

Even if all elements of an estoppel are present there can be none such against the state in tax matters if the representations were made by an officer lacking the necessary authority. United States v. Globe Indemnity, 17 Fed. Supp. 839; Id., 2 Cir., 94 Fed. Rep. (2d) 576.

There being no absolute right in the debtor to dictate the application of payments in the present factual situation and the state’s agents having had no authority to contract or make agreements especially in these tax matters, on its behalf, and estoppel not being available as a defense against the state, we are led to the question of how the payments should be applied.

Were we not here concerned with the construction of a very detailed statute and had the legislature merely provided for the payment of interest on defaulted taxes, in view of my holdings hereinbefore expressed, I would determine that the rule laid down by Chancellor Kent in Conn v. Jackson, 1 Johns Ch. (N. Y.), 13, 17, and generally referred to as the “United States Kule,” would apply. That has been followed in this state in Meredith v. Banks, 6 N. J. L. 408; Stark v. Hunton, 3 N. J. Eq. 300; Baker v. Baker, 28 N. J. L. 13; dictum by the court in Holcombe v. Holcombe, 74 Id. 257; 65 Atl. Rep. 855, and Collerd v. Tully, 77 N. J. Eq. 439; 11 Atl. Rep. 1079.

As has been shown, interest does not attach to defaulted taxes as a matter of course. Interest in such a ease is a creature of statute and any matters incident and appertaining thereto must likewise follow all statutory requirements. It follows that we may have recourse to so-called rules of application only if the statute is silent on that score. Wherefore, it becomes necessary to examine the statute.

R. S. 54:27-4; N. J. S. A. 54:27-4, provides that "such taxes, or the unpaid portion thereof” shall hear interest from the date of default until finally paid. Thus partial payments were within the contemplation of the legislature when this provision became law. R. S. 54:26-12; N. J. S. A. 54:26—12, provides that, as a condition for prosecuting a writ of certiorari> a railroad company shall pay the amount of taxes not in substantial dispute. Thus under certain circumstances, it was required that partial payments be made by the railroad companies. It is quite obvious that the legislature intended that the amount of taxes not in substantial dispute should be fully paid and completely eliminated from the controversy, leaving only the disputed balance to be litigated, which balance would bear interest from the date of default to the date of payment. Neither of these statutory requirements could be literally complied with if we apply the "United States” rule. The same is true if we apply the rule advocated by the defendant company and sometimes referred to as the commercial rule. The only logical and workable construction that can be placed upon the language of the statute is that every dollar of tax was intended to carry its own interest burden in the event that such dollar of tax should be in default.

To explain—let us suppose that $1,000,000 of taxes are in default and a railroad company wishes to pay $100,000 on account. At the time of the payment of the $100,000, the Comptroller must divide that sum into two component parts so that one of them will represent interest at the statutory rate on the other for the period of the delinquency. The interest component will then be deductible from the balance of interest owing at the time the payment is made and the principal component will be deductible from the balance of principal owing at that time. The mathematical formula for accomplishing this result is feasible and easy of application. Any payment heretofore made by the railroad companies subsequent to default must be so adjusted as to accomplish this result.

This application of payments and construction, which is advocated by the state is logical, workable, understandable mid just. It is the only construction which is in complete harmony with the several statutory provisions hereinabove set forth. It is the only construction whereby one can refer to a balance of principal taxes and say that such amount plus interest from the date of default to the date of payment constitutes the true and full tax debt of a defaulting company to the state. While it deviates from the “United States” rule it does not repudiate it.

II.

The defendant, when it made its payment on August 4th, 1941, knew the act in pursuance of which it was made had not been complied with, i. e., that the payment and other documents should be in the form approved by the Attorney-General. While the certified check was received and receipted for by the Comptroller and the Treasurer it was never deposited or cashed, though retained.

The defendant who knew this situation, undoubtedly could have secured the return of its check but it preferred to let it remain in the hands of the Treasurer pending the outcome of the attack on the constitutionality of the “Settlement” acts. Even after the restraint imposed on the Treasurer by the decree of the Court of Chancery on May 21st, 1942, it continued to leave it in his custody.

The final decree of the Court of Chancery, Wilentz v. Hendrickson, supra, adjudged and decreed the “Settlement Act” as being in contravention of article I, section 20 of the constitution (N. J. S. A.), and null and void, and permanently enjoined the State Treasurer from carrying out or executing any of the provisions thereof. It therefore follows that anything done in pursuance thereof was of no force or effect.

III.

The Settlement Acts having been declared unconstitutional and null and void in their entirety the interest rate subsequent to July 22d, 1941, must be calculated at the rate of twelve per cent, per annum as provided for in R. S, 54:27-4; iV. J. 8. A. 54:27-4.

IY.

Despite the fact that the defendant, designated exactly how much principal and interest it was intending to pay by the payments made in July, 1944, they must, of course, be applied on account of their tax debts in the same manner as is held hereinabove, with respect to the payments made by it between December 1st, 1932, and July 22d, 1941, and dealt with under the first issue. The exchange of receipts and correspondence between the Comptroller and the defendant in 1944 can no more affect the operation of the statute and the rights of the state than any of the various unauthorized acts of the Comptroller prior to that year. In order to apply the rule of partial payments herein adopted to the 1944 payments, however, it will be necessary for the parties to stipulate exactly what part of each of such payments was intended by the defendant to be applied to the respective tax debts of each tax year in arrears. If the parties cannot so stipulate, that issue will be referred to a master for determination.

If all parties can agree upon the amounts due, calculated in compliance with this opinion, I will enter judgment in those- sums. Otherwise, determination of such amounts will also be referred to a master for hearing and determination.

It should be emphatically stated that nothing said in this opinion is meant to reflect in any way upon the integrity or ability of any state official. What they did, without question, appeared to them at the time to be'the legal and proper action to take and the thing which the interests of the state seemed to demand.


author: Leyden, S. C. C.

text:
    FREDERICK M. ROLLENHAGEN, PLAINTIFF, v. HARRY S. STEVENSON, DEFENDANT.
    Dated July 3, 1945.
    For the plaintiff, Bremen & Nugent.

    For the defendant, Frank 0. Bc&rho.

   Leyden, S. C. C.

Plaintiff moves to strike fte answer of "the defendant to the complaint on an alleged judgment obtained against the defendant on his agreement and confession of judgment in the State of New. York, and entered on or •about the 15th day of September, 1926, in the Supreme Court, New York County. The companion application for summary judgment was properly abandoned for lack of authority of the Supreme Court Commissioner to enter a judgment in a Supreme Court issue. Milberg v. Keuthe, 98 N. J. L. 779; 121 Atl. Rep. 713.

The complaint is in the usual form and contains, by incorporation and reference, what purports to be an exemplified copy of the judgment record of the New York court, with the defendant’s statement and confession of such judgment dated September 1st, 1925, annexed thereto.

The answer contains a general denial and five separate defenses. Considering the defenses seriatim, we have the first, which is attacked as insufficient in law and sham. It sets up that the alleged judgment sued upon is void for lack of jurisdiction of the court in which it was entered by reason of the non-residence of the defendant in New York County on September 1st, 1925, the time of the making of the statement and confession of judgment. It appears from the motion papers that the defendant was not a resident of New York County at the time mentioned, and that such residence is a prerequisite to the entry of a valid judgment on confession under the law of the State of New York. New York Civil Practice Act, § 543; Williams v. Mittlemann, 259 App. Div. 697; 20 N. Y. S. (2d) 690.

This defense is sufficient in law. A defendant may impeach a" judgment of a sister state upon the ground that the court of the sister state lacked jurisdiction over the subject-matter for failure to conform strictly to the authority given by the defendant and granted by the statutes of that state. Grover & Baker Sewing Machine Co. v. Radcliffe, 137 U. S. 287; 11 S. Ct. 92; National Exchange Bank of Tiffin v. Wiley, 195 U. S. 257; 25 S. Ct. 70; Hazel v. Jacobs, 78 N. J. L. 459; 75 Atl. Rep. 903; 34 C. J. 102, ¶ 274.

The second separate defense, attacked as insufficient in law, pleads nul tiel record, i. e., no such record. Under it the defendant may show the non-existence of the record as a record without contradicting the recitals in the alleged record itself.' The motion papers point out that the original confession and judgment roll are missing from the files of the Yew York County clerk’s office. This defense is sufficient in law.

The third, fourth and fifth separate defenses, challenged as insufficient in law and sham, deny the existence and validity of the alleged assignment and the consideration therefor from American Cities Company, Inc., the judgment creditor, to the present plaintiff, dated March 13th, 1945, upon the ground of the non-existence of that corporation, it having been dissolved by proclamation of the Yew York Secretary of State on December 15th, 1930. The complaint contains an allegation that the judgment creditor assigned and transferred all its right, title and interest in and to said judgment from the present plaintiff for a legal and valuable consideration. The answer contains a general denial, and this denial squarely places the burden upon the plaintiff to prove a valid and legal assignment of such judgment. The non-existence, invalidity, illegality and failure of consideration for such assignment need not be specially pleaded. The third, fourth and fifth separate defenses are therefore unnecessary and improper. They will be stricken. Cf. Gionti v. Crown Motor Freight Co., 128 N. J. L. 407; 26 Atl. Rep. (2d) 282.

In a suit on a judgment entered of record in a court of a sister state, the facts relied upon to avoid such judgment, e. g., lack of jurisdiction of the court of the sister state over the subject-matter or the non-existence of the judgment record, must be specially pleaded and may not be given in evidence under the general issue. Moulin v. Insurance Co., 24 N. J. L. 222; Beale v. Berryman, 30 Id. 216; Anthony v. Wilson, 74 Id. 630; 65 Atl. Rep. 988.

The motion, as to the general denial and first and second separate defenses is denied, and granted as to the third, fourth and fifth separate defenses.


author: Haetshoenb, C. P. J.

text:
    Essex County Court of Common Pleas.
    HERMAN POWELL, PETITIONER, v. ALFRED R. MEYER, WARDEN OF THE ESSEX COUNTY JAIL, DEFENDANT.
    Decided June 29, 1945.

      For the petitioner, Thomas Potter.

    For Walter D. Van Eiper, Attorney-General, Jerome B.' LitvaJc.

    For the warden, C. William Caruso.

   Haetshoenb, C. P. J.

The Governor of New Jersey, after a hearing, issued his extradition warrant for the return of petitioner Powell, as an escaped prisoner, to the State of Georgia, on the due demand of the Governor of that state, all as provided by the Uniform Extradition Act in force in New Jersey and Georgia and generally throughout the states of the Union, R. S. 2 :185-6 as amended, N. J. 8. A. 2:185-6, et seq. This act implements the brief, mandatory provisions of the United States Constitution that “A person charged in any State with treason, felony or other crime, who shall flee from justice and be found in another State, shall, on demand of the executive authority of the State from which he fled, be delivered up, to be removed to the State having jurisdiction of the crime.” U. S. Const., article IV, section 2.

Powell has applied to this court under the above act, and obtained a writ of habeas corpus. Thereunder he objects to his return to Georgia, claiming that he has been denied “equal protection of the law” and “due process of law” in Georgia, Const. Ga., article 1, section 1, paragraphs 2, 3, in that negro citizens were systematically excluded from the grand and petit juries by which he, a negro, was indicted, tried and convicted of murder; that because of popular feeling against him, he did not have a fair trial; and that ■ he now fears mob violence. But as to the latter, his petition admits that the Georgia authorities adequately protected him in 1941, at the time of the death from the automobile accident, the basis of the charge against him. And of course, during the four intervening years any popular feeling would naturally have subsided, let alone the fact that he does not appear to have been endangered during the many months he was in the small Georgia jail, from which he so readily escaped.

Meanwhile, during these - years Powell promptly appealed his conviction to the higher courts in Georgia, though without raising the present constitutional grounds. Practically concurrently with the affirmance of such conviction (Powell v. State, 193 Ga. 398; 18 S. E. Rep. (2d) 678), he escaped from confinement and came to New Jersey where he lived till his arrest, May 29th, 1944. Since then, the legal steps taken on his behalf have included a hearing before this court on the extradition, as provided by the above act (R. S. 2:185—18; N. J. S. A. 2:185-18); an application to the United States District Court for the District of New Jersey for a writ of habeas corpus for his release from custody, at which, for the first time, the grounds now relied on were urged for his release; the denial of such writ by that court; an appeal therefrom to the United States Circuit Court of Appeals for the Third Circuit, which affirmed the action of the United States District Court (Powell v. Meyer, 147 Fed. Rep. (2d) 606); and, upon the abandonment of his appeal therefrom to the United States Supreme Court, the present application to this court for a writ of habeas corpus.

The question now is, whether on the above grounds this court should refuse to honor the extradition warrant of the New Jersey Governor, and should release him so that this state cannot comply with the provisions of the above extradition clause of the United States Constitution that he “shall * * * be delivered up” to Georgia. • This is despite the fact that the federal courts have themselves stayed their arm, till after Powell has applied to the Georgia courts to right the wrong he claims to have existed in Georgia. Powell v. Meyer, supra; Sanderlin v. Smyth, 4 Cir., 138 Fed. Rep. (2d) 729.

Here it should be borne in mind that there is much stronger reason for the interposition of the federal courts on habeas corpus, which have jurisdiction over Powell’s person whether he be in New Jersey or in Georgia, than for that of the courts of New Jersey. This is for the reason that the extradition clause of the United States Constitution does not apply in its mandatory requirements to the federal government, but only to the states. Historically, this is because the federal government was created by the constitution for the primary purpose of overcoming the failure of the states, after the Bevolution, to co-operate fully with each other, either legally or commercially, for the common welfare of our citizens. Thus, the very purpose of the extradition clause was to insure co-operation by one state with another in the enforcement of each other’s laws. The essence of the extradition clause, in short, is constitutional comity.

Yet, even without any such constitutional constraint, the rule is well established in the federal courts that, even when basic constitutional grounds exist, the federal courts will not interfere on habeas corpus with the functioning of the state courts in such a situation unless “the state courts will not, or cannot, do justice.” Sanderlin v. Smyth, supra; Moore v. Dempsey, 361 U. S. 86; 43 S. Ct. 265. This doctrine is based not on lack of power, but on the propriety of the exercise of admitted power'—comity. Surely it is appropriate to give a sovereign state the opoprtunity to review the correctness of its own acts before such acts are condemned by others. And this is just what petitioner has here failed to do.

Surely, this doctrine applies with at least equal force to the courts of a state foreign to that whose courts took the action of which complaint is made. For while the federal courts have jurisdiction in Georgia, the New Jersey courts lack any power whatever to enforce their judgment in such state. Thus, even if Powell were released here, Georgia would still be at full liberty to pursue him, as an escaped convict, throughout all the rest of the states of the Union.

Again, in order to prove but a single one of the grounds on which he relies, it would be necessary to give in evidence in New Jersey, a thousand miles from Georgia, all of the records as to the selection of all of the grand and petit juries in each of the 159 counties in Georgia over the past ten years and more. When this impracticable situation can be overcome by a trial in the forum where the wrong is alleged to exist, the convenience of the petitioner himself, let alone that of the State of New Jersey, lends additional force to the propriety of the application of the federal rule in this state.

Hor is this the crucial point. This is, that while the federal courts are not subject to the extradition clause of the United States Constitution, the state courts are. And if the State of New Jersey were to refuse to discharge the prisoner here, it would violate the mandatory provisions of the United States Constitution, that such person “shall * * * be delivered up * * *”—a clause whose purpose is the very keystone in the structure of the United States themselves. In fact, our courts have repeatedly said that the extradition clause creates an “absolute obligation on each state.” And further, that by such clause “in the place of spontaneous submission to the law of comity, there is now substituted that implicit obedience which is due to a rule of law.” In re Voorhees, 32 N. J. L. 141, 145; In re Thompson, 85 N. J. Eq. 221, 227; 96 Atl. Rep. 102. For this reason it has long been settled that, on extradition, the asylum state has no right to consider the merits—the prisoner’s guilt or innocence—but only the question of whether the prisoner is within the extradition clause itself, i. e., his identity with the fugitive charged, and the fact that the charge is one of actual crime. Roberts v. Reilly, 116 U. S. 80; 6 S. Ct. 291; In re Thompson, supra; In re Williams, 5 N. J. Mis. R. 528; 137 Atl. Rep. 422.

Often the courts, out of sympathy for the prisoner, are wont to scrutinize extradition proceedings rather closely. But in these cases it seems to be overlooked that the prisoner’s rights and person can be fully protected, while at the same time the state’s constitutional obligations, as above, can be fully performed. Here, specifically, Powell’s rights can be fully protected, even on his return to Georgia, by application there to either or both the state and, if necessary, the federal courts in Georgia.

On the other hand, Powell has never yet presented to the Georgia courts the grounds of objection he'now urges. How can he, in justice, charge Georgia with injustice, unheard? And even should his application to the state courts of Georgia prove fruitless, he is amply protected by his then clear right to apply to the United States Supreme Court for its protection of his constitutional rights. Nor need he fear injustice at the hands of the people of the State of Georgia, as distinguished from the Georgia authorities. As seen above, that fear is without substance. But even if it had substance, this court and this state could well arrange terms with Georgia for his security there, concurrent with his removal, even to the extent of a prompt application to the federal courts in Georgia for their protection and consideration of the matter, under the very doctrine above alluded to. Note here the similar steps previously taken by New Jersey with Georgia to insure the safety from mob violence in Georgia of the prisoner there extradited from this state to Georgia, as passed upon with approval by our highest state court. In re Paramore, 95 N. J. Eq. 386; 123 Atl. Rep. 246; affirmed, 96 N. J. Eq. 397; 125 Atl. Rep. 926.

As to Commonwealth v. Superintendent, 152 Pa. Super. 167; 31 Atl. Rep. (2d) 576, suffice it to say that the terms of the Pennsylvania Habeas Corpus Act, 12 P. S., §§ 1892, et seq., as to inquiring “into the facts of the ease,” do not exist in the New Jersey statute (R. S. 2:82-36; N. J. S. A. 2:82-36), and this quite regardless of the requirements of the United States Constitution and of the doctrine of comity as between sovereignties.

The writ will be discharged.


author: Per Curiam.

text:
    SACHS QUALITY FURNITURE, INC., PLAINTIFF-APPELLANT, v. CHARLES HAFLEY AND MARGARET HAFLEY, DEFENDANTS-RESPONDENTS.
    Submitted January 16, 1945
    Decided February 5, 1945.
    Before Justices Parker and Colie.
    For the appellant, Abraham H. Carchman (Benjamin Coe, of counsel).
    For the respondents, Thomas 8. Glancy (Bernard 8. White, of counsel).
   Per Curiam.

Appellant, Sachs Quality Furniture, Inc., appeals from a judgment in its favor in the amount of $12.07 and costs. The specification of determinations reads as follows:

“1. The court erred in refusing to grant plaintiffs motion for a directed verdict and grant judgment in favor of the plaintiff as a matter of law.

“2. The court erred in failing to enter judgment in favor of the plaintiff, as matter of law, for the sum of forty-two dollars and seven cents ($42.07).”

As to the first specification, an examination of the record discloses no motion on behalf of plaintiff for a directed verdict and ho refusal of the trial court thereon. There is, therefore, no basis for this specification.

As to the second specification of alleged error in failing to enter judgment in favor of the plaintiff for $42.07 as a matter of law, this, too, seems to be defective. See Press v. Klink, 115 N. J. L. 475.

There being no question before the court for review, the appeal is dismissed, with costs.


author: Burling, C. 0. J.

text:
    Atlantic County Circuit Court.
    JOHN SBROLLA, COMPLAINANT, v. MARIA HESS, DEFENDANT.
    Decided July 16, 1945.

      For the complainant, Lloyd, Horn & Pershie (by David M. Pershie and Jolm B. Baratía).

    For the defendant, Martin Bloom.

   Burling, C. 0. J.

On June 5th, 1945, complainant commenced proceedings in the Atlantic City District Court to acquire possession of “house and accommodations and premises” situate and known as premises 108 North Annapolis Avenue, in the City of Atlantic City, New Jersey, on the ground that the defendant, tenant in possession of the premises, held over and continued in possession thereof after the expiration of his term and after demand was made and written notice given by the landlord for delivery of possession of the premises to him. B. S. 2:58-17 (a); N. J. 8. A. 2:58-17 (a). Prior to the return date of the summons to show cause why possession should not be delivered to complainant, an application was made by complainant, pursuant to B. 8. 2:58-27; N. J. 8. A. 2:58-27 (see, also, B. S. 2:32-274; N. J. 8. A. 2:32—274) to the Honorable Frederic E. Colie, a Justice of the Supreme Court of New Jersey, for an order transferring the cause to the Atlantic County Circuit Court. On June 11th, 1945, an order was made by him transferring the cause to the Circuit Court of the County of Atlantic and in due season the appropriate papers were delivered to the clerk of the Atlantic County Circuit Court, thereby vesting that court with full and exclusive cognizance of the case. B. 8. 2:58-27; N. J. 8. A. 2:58-27.

Pursuant to the mandate of the statute (B. 8. 2:58-28; N. J. 8. A. 2:58-28) a venire facias was issued by the Atlantic County Circuit Court Judge returnable in one week. Prior to the return date of the venire facias as aforesaid, defendant moved to dismiss the affidavit and the cause of action based thereon upon the ground that the notice to terminate the tenancy set forth in the affidavit was not in accordance with the requirements of the statutes of the State of New Jersey, and that the Circuit Court was, therefore, without jurisdiction to entertain the proceeding. Prior to the return date of the motion, complainant filed a petition with the court setting forth in substance that in order to determine the question raised by the motion, to wit; the constitutionality of chapter 84 of the laws of 1945 (B. 8. 46 :8-ll, ei seq.j N. J. 8. A. 46:8-11) it was necessary either to take depositions or to stipulate certain facts with regard to the method of enactment of the law, and with regard to the classification set forth in the seventh (seventeenth of the revision) section of the original act. The petition prayed for the right to stipulate or take depositions on the matters aforesaid and on other matters and also for a postponement pending the takimg of the depositions, or the entering into of the stipulation, of the return date of the motion and of the trial. The trial was adjourned until July 16th, 1945, and the argument on defendant’s motion was adjourned until June 29th, 1945. No testimony was taken and a stipulation has been entered into between the parties and filed with the court. The motion to dismiss the affidavit was argued and briefs submitted and decision reserved until the adjourned date of trial. The jury having been summoned in accordance with the venire facias and the cause coming on for trial in the presence of the parties and their attorneys to inquire into and try the proceedings for the possession of said premises, the defendant renewed his motion to strike out affidavit of the complainant and the cause of action upon the ground that it appears affirmatively on the face of said affidavit that notice to terminate the tenant’s term was not given in accordance with the requirements of the law in such ease made and provided and that therefore the court is without jurisdiction to act under said affidavit. The motion to dismiss the cause of action is predicated upon the admitted failure of the affidavit to allege notice in compliance with chapter 84 of the laws of 1945 (B. 8. 46 :8—11, et seq.; N. J. 8. A. 46:8-ll, ei seq.). Complainant contends that compliance with this statute is unnecessary, since the statute is unconstitutional and therefore void. Thus, 'the issue as to the constitutionality of the act in question is now singularly before the court.

The complainant has abandoned any question as to the method of enactment of the legislation for the purpose of this proceeding only and as to the constitutionality of the statute in view of its title. Complainant relies in this proceeding upon the contentions that the statute violates article 4, section 7, paragraph 4 and article 4, section 7, paragraph 11 of the state constitution (W. J. 8. A.) in that the act in question is special legislation and that the statute violates the obligation of contract and due process clauses of the federal and state constitutions, namely article 1, section 10, el. 1 and the Fourteenth Amendment of the Constitution of the United States of America and article 1, paragraph 1 and article 4, section 7, paragraph 3 of the Constitution of the State of New Jersey in that:

a. It constitutes a deprivation of property without due process of law.

b. It constitutes an impairment of obligation of contract.

e. It denies to persons the equal protection of the laws.

d. It deprives parties of remedies for enforcing contracts which existed when the contracts were made.

e. It is not a lawful exercise of the police power since it is arbitrary, discriminatory and applies only to a portion of the public.

In approaching the question of the unconstitutionality of the statute, these formulas present themselves:

“It is the settled rule of judicial policy in this jurisdiction that a legislative enactment will not bo declared void unless its repugnancy to the constitution is so manifest as to leave no room for reasonable doubt. The constitutional limitation upon the exercise of legislative power must be clear and imperative. This is a well defined limitation engrafted upon the function assumed by the courts, federal and state, to nullify a statute for unconstitutionality.” State v. Murzda (Court of Errors and Appeals, 1935), 116 N. J. L. 219 (at p. 223); 183 Atl. Rep. 305 (at p. 307).

“To declare a statute unconstitutional is a judicial power to be delicately exercised. The exercise of that power has been entrusted to the courts. There it has been for generations and there it must remain until the people in a constitutional manner lodge it elsewhere. The responsibility must be fearlessly assumed.” Wilentz v. Hendrickson (Court of Chancery, 1943), 133 N. J. Eq. 447 (at p. 487) ; 33 Atl. Rep. (2d) 366 (at p. 390).

The act (Pamph. L. 1945, ch. 84) contains the following preamble:

“Whereas, certain landlords have been and are taking undue advantage of the existing housing shortage which has created a serious emergency in certain cities of this state; and

“Whereas, the peace, welfare and morals of the general public is threatened to such an extent as to make necessary and advisable the passage of measures which shall tend to promote the general welfare by curbing oppressive actions of landlords who seek unduly to raise rents, profiteer in rents, terminate tenancies for no valid cause and otherwise deprive their tenants of housing facilities; therefore,”

Sections 1 and 2 of the act are as follows:

“1. Fxcept as herein otherwise provided, any tenancy for dwelling purposes now existing, whether under a lease, or from month to month, or otherwise, shall continue, notwithstanding the expiration of the tenancy by its terms, or by the service of a notice to end the tenancy by the landlord to the tenant, either prior or subsequent to the passage of this act; provided, the tenant is otherwise entitled to continue in possession, under the terms of the letting and shall continue to pay the rent.as stipulated at the beginning of his tenancy.”

“2. Any tenancy now existing and which shall continue under the provisions of this act, may be terminated by a landlord, who is also the owner of the demised premises, by a notice in writing to that effect, to the tenant, which shall be served upon the tenant not less than six months prior to the date of termination specified in the notice; provided, the owner and landlord, in good faith, desires the premises for actual use by himself and his family, for dwelling purposes, as his principal year around home and legal residence and is otherwise legally entitled to terminate the tenancy on the date specified for such termination.”

The act makes it a misdemeanor to fail to make the limited use for one year of the premises after obtaining possession. Summer rentals are deleted from its effect and premises of sixteen rooms or more.

Section 7 is an important section in defining the limited operation of the act as follows.

“7. This act shall be inoperative except in cities bordering on the Atlantic ocean in counties of the fifth class having a population of less than one hundred fifty thousand according to the last Federal census.”

The facts in paragraph 2 of the stipulation hereinbefore referred to are relevant and regardless of the stipulation are the subject of judicial notice, namely:

“2. There are two Fifth Class counties in the State of New Jersey: Atlantic County and Monmouth County, the County of Monmouth having a population of 161,238 as of the 1940 Federal census and the County of Atlantic having a population of 124,066 as of the same census. There are four cities in Atlantic County bordering on the Atlantic Ocean, namely Brigantine, Atlantic City, Yentnor City and Margate.”

It is a matter of such common knowledge as to require judicial notice (James Mitchell, Inc., v. Kreuger (Hudson County Circuit Court, 1932), 10 N. J. Mis. R. 1176 (at p. 1179); 163 Atl. Rep. 10; Wilentz v. Hendrickson, 133 N. J. Eq. (at p. 485); 33 Atl. Rep. (2d) 366) that a general condition has existed of a shortage of housing accommodations due primarily to the embargo upon the use of critical materials and labor needed in the war effort which were normally available and required in the construction of housing facilities. This situation found recognition in the interest of national defense in federal legislation in the Emergency Price Control Act of 1942 (50 U. S. C. A. Appendix, §§ 901, et seq.) and regulations issued pursuant thereto. By stipulation of the parties, the following facts are admitted and now deemed relevant:

“1. Pursuant to the authority conferred under 50 U. S. C. A. Appendix, Section 902 (b) and (c) the Price Administrator of the United States Government appointed under the Emergency Price Control Act, has issued declarations setting forth the necessity for the stabilization or reduction of rents for housing accommodations in every county of the State of New Jersey, pursuant to the same statutory authority the Price Administrator has issued regulations effective in every County of the State of New Jersey on the following dates:

Counties
Hate of Rent Control Regulations
Burlington, Camden, Gloucester, Bergen, Essex, Hudson, Middlesex, Monmouth, Morris, Passaic, Somerset, Union .......................... July 1, 1942
Sussex ............................ August 1, 1942
Warren ........................... September 1, 1942
Salem, Hunterdon, Mercer........... November 1, 1942
Cape May, Cumberland ............. December 1, 1942
Atlantic ........................... June 1, 1944
Ocean ............................ April 1, 1945

“The regulations issued by the Price Administrator which are effective in every county in the State of New Jersey established maximum rent dates in each county, the said maximum rent dates being either March 1st, 1942, September 1st, 1943, or February 1st, 1944.. There is attached hereto and by this reference made a part hereof, the Housing Eegulations for all defense rental areas, and the parties hereto agree that the provisions contained in the said regulations are in force and effect in each county of. the State of New Jersey.”

The attack by the complainant upon the act divides itself into two categories:

I.

That it violates article 4, section 7, paragraph 4 of the Constitution of the State of New Jersey, the pertinent part of which paragraph is: “No general law shall embrace any provision of a private, special or local character,” and article 4, section 7, paragraph 11 of the Constitution of the State of New Jersey, the pertinent part of which paragraph is: “The legislature shall pass general laws providing for the cases enumerated in this paragraph, and for all other cases which, in its judgment, may be provided for by general laws.” By application of the formula of classification, the only municipalities in the State of New Jersey in which the act by its terms is operative are the cities of Atlantic City, Ventnor, Margate and Brigantine, in the County of Atlantic.

That the legislature dealt with the legislation as being general in nature is obvious by the admitted non-compliance with article 4, section 7, paragraph 9, providing for public notice of intention of application for a special or local bill.

There have been a large number of decisions upon the subject of classification in our state.

One of the leading eases is Budd v. Hancock (Supreme Court, 1901), 66 N. J. L. 133 (at p. 133); 48 Atl. Rep. 1023 (at p. 1024), wherein it was held:

“A law is special in a constitutional sense when, by force of an inherent limitation, it arbitrarily separates some persons, places or things from others upon which, but for such limitation, it would operate. The test of a special law is the appropriateness of its provisions to the objects that it excludes. It is not, therefore, what a law includes that malees it special, but what it excludes. If nothing he excluded that should be contained the law is general.”

And in another leading case, Burlington v. Pennsylvania Railroad (Court of Errors and Appeals, 1928), 104 N. J. L. 649 (at p. 654); 142 Atl. Rep. 23 (at p. 25), it was held:

“A law is not objectionable on the ground that in its operation it is confined to certain localities if it does not exclude from its sway or effect any place or subject belonging to the class to which it relates. Van Riper v. Parsons, 40 N. J. L. 1.

“If the legislative object be one for the imposition of which population affords a proper basis, an act is general without regard to the number of municipalities affected by it, or to the wisdom or unwisdom of applying its provisions to the classes selected. Calvo v. Westcott, 55 N. J. L. 78; 25 Atl. Rep. 269, citing Mortland v. Christian, 52 N. J. L. 521, 537; 20 Atl. Rep. 673; Randolph v. Wood, 49 N. J. L. 85; 7 Atl. Rep. 286.

“A law, to be general, must operate equally upon all of a group of objects which, having regard to the purposes of the legislation, are distinguished by characteristics sufficiently marked and important to make them a class by themselves. Central Railroad Co. v. State Board of Assessors, 75 N. J. L. 771, 786; 69 Atl. Rep. 239.”

And in one of the early leading cases, Van Riper v. Parsons (Supreme Court, 1878), 40 N. J. L. 1 (at pp. 8, 9), it was held:

“My theory is, that if a set of objects be fairly classified, a law embracing them will bo a general one, and in all respects unobjectionable; but undoubtedly, if the classification be illusive, being contrived with a view of escaping the constitutional restriction, it can lend no support to the legislation connected with it. * * * Interdicted local and

special laws are all those that rest on a false or deficient classification; their vice is that they do not embrace all the class to which they are naturally related; they create preference and establish inequalities; they apply to persons, things or places possessed of certain qualities or situations, and exclude from their effect other persons, things or places which are not dissimilar in these respects.” (Italics supplied.)

With the law as hereinabove set forth in view, we consider the enactment in question. Its preamble recites that landlords have been and are taking undue advantage of the existing housing shortage which has created a serious emergency in certain cities of this state and further that the general public is threatened to such an extent as to make necessary and advisable the passage of measures which shall tend to-promote the general welfare by curbing oppressive actions of landlords who seek unduly to raise rents, profiteer in rents, terminate tenancies for no valid cause and otherwise deprive-their tenants of housing facilities.

The wisdom of the act is for the legislative branch but it: cannot be contended that such emergency exists only in cities bordering on the Atlantic Ocean in counties of the fifth class-having a population of less than 150,000 according to the last federal census; that the emergency exists only in Brigantine, a city having no manufacturing work and having one of the-smallest populations of any city in the state; that this emergency exists only in the seaside municipalities of Atlantic-City, Margate and Yentnor whose chief occupation is catering, to visitors that the emergency is any less in large industrial areas in the northern, central and western part of Mew Jersey, or that the landlords in all areas of Mew Jersey, with the-exception of these four municipalities, act differently than the landlords in those four municipalities. Mo one would contend that the welfare and morals of the general public off the state are affected by the action of landlords alone in the-municipalities of Brigantine, Atlantic City, Yentnor and Margate. The Office of Price Administration has promulgated regulations limiting the rights of landlords due to a-, national emergency which are in effect in every county of the-state.

The defendant submitted that there exists in the instant case “some characteristic or peculiarity that distinguishes iff from those places excluded; that is that the four cities im question are resorts, and are adjacent to large cities, which frequent these resorts, and as a result of which an unusual" condition has been created. Residents of large cities have in-great numbers been purchasing homes in these cities and have-been dispossessing the occupants of these homes. This condition is one that is peculiar to the four cities and does not apply to other parts of the State of New Jersey.”

Even these characteristics are not peculiar to the four municipalities particularly affected by this act. Assuming the allegation to be a fact, it is common knowledge there exists possessors of surplus cash who seek investment and ownership in real estate not particularly local to these municipalities nor particularly local to them as resort municipalities. Other resorts and municipalities of the State of New Jersey have felt the effect of the added influx of people and the impetus toward real estate ownership.

Under the federal statutes and its incident regulations landlords in all parts of the State of New Jersey are presently on an equal footing. Making due allowance for the quartering of soldiers and housing demands incidental thereto, the demand for housing in Brigantine, Atlantic City, Yentnor and Margate, which have no war industries, is no greater than the demand for housing in various metropolitan districts throughout the state in which defense plants and factories are working on two and three shifts a day. The conditions and wants of areas other than those mentioned in this act with regard to housing and housing facilities render the legislation equally appropriate to such areas.

The distinctions are not substantial but illusory. The test of the generality of a law that it shall embrace all and exclude none whose conditions and wants render such legislation equally appropriate to them as a class has not been met and by this test, the act is a special and local one and is discriminatory and unconstitutional.

II.

The act is further vulnerable to attack as raised in the second category of grounds. Complainant asserts that it violates the obligation of contract and the due process clauses of the federal and state constitutions (article 1, section 10, cl. 1, Fourteenth Amendment of the Constitution of the United States and article 1, paragraph 1 and article 4, section 7, paragraph 3 of the Constitution of the State of New Jersey). The pertinent provisions of each are as follows:

United States Constitution: “Art. 1, Section 10, cl. 1 * * * No State shall * * * pass any Bill of Attainder, ex post facto Law, or Law impairing the obligation of Contracts, or grant any Title of Nobility.”

Amendment: “Art. XIY, See. 1 * * * Eo State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

New Jersey Constitution: “Art. 1. Rights and Privileges. 1. * * * All men are by nature free and independent, and have certain natural and unalienable rights, among which are those of enjoying and defending life and liberty, acquiring, possessing, and protecting property, and of pursuing and obtaining safety and happiness.”

“Art. IV, Sec. 7. 3. * * * The legislature shall not pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts, or depriving a party of any remedy for enforcing a contract which existed when the contract was made.”

' By chapter 84 of the New Jersey Laws of 1945, effective April 4th, 1945, the legislature undertook to extend every tenancy “now existing” for dwelling purposes, involving premises containing less than sixteen rooms, in four cities of this state, namely, Atlantic City, Brigantine, Margate City and Yentnor, for a period of two years and three months from the effective date of the act. The act required of the tenant only that he continue payment of rent “as stipulated at the beginning of the tenancy” and that he be “otherwise entitled to continue in possession.”

The only exception to the rule established by the legislature was that it permitted the termination of such tenancies where the following three conditions should all concur, to wit:

(1) That the landlord, being also the owner of the demised premises should serve a notice in writing upon the tenant effective not less than six months prior to the date of termination specified in the notice; and

(2) That the owner-landlord should in good faith desire the premises “for actual use by himself and his family for dwelling purposes as his principal year around home and legal residence;” and

(3) That the owner-landlord should be otherwise legally entitled to terminate the tenancy on the date specified for such termination.

The period of two years and three months hereinbefore mentioned is fixed by that provision of the act which continues its effectiveness until July 4th, 1947.

Since a great many landlords cannot possibly comply with the conditions that would bring them within the exception above mentioned (for example, a corporation landlord-owner could never so comply) this act means that the rights of many tenants to remain in possession of leased premises are arbitrarily extended for the period mentioned at the then existing rent “as stipulated at the beginning of the tenancy ” whether or not the landlord is agreeable to such extension, whether or not the alleged emergency described in the preamble of- the act shall continue to exist during said period of two years and three months and whether or not the rent stipulated at the beginning of the tenant’s tenancy should in the light of subsequent development be a “reasonable” or an “unreasonable” one.

At the argument of this motion, both parties admitted that there was factual justification for the declaration by the legislature of the emergency situation. While the court is not bound to accept the determination of the legislature, it must however give considerable weight to the determination of the legislature that such an emergency in fact existed especially where the facts supporting it are in evidence and matters of common knowledge and observation. Although the act does not by its term limit its operation during a period of existing emergency, still the fair inference from the fact that it is of a limited duration is that the legislature estimated the period and in any event should the emergency cease within the period, the court may at such time so declare and the occasion for the exercise of unusual power falls. Hourigan v. North Bergen Township (Court of Errors and Appeals, 1934), 113 N. J. L. 143 (at p. 151); 172 Atl. Rep. 193, 785.

The defendant admits that the act impairs the obligation of contract and the due process constitutional provisions under ordinary circumstances but asserts that such rights are made subject to the exercise of the police power by the state when otherwise justified and asserts that under the existing circumstances the police power has been validly exercised and that such valid exercise nullifies the effect of such violation during the exigency.

Although an emergency does not increase constitutional power nor diminish constitutional restrictions, it may furnish the occasion for the exercise of power possessed. Home Building and, Loan Association v. Blaisdell (1934), 290 U. S. 398 (at p. 425); 54 S. Ct. 231. And at page 440 of 290 (N. S.), at page 241 of 54 S. Ct., it was held:

“Whatever doubt there may have been that the protective power of the state, its police power, may be exercised—without violating the true intent of the provision of the federal constitution—in directly preventing the immediate and literal enforcement of contractual obligations, by a temporary and conditional restraint, where vital public interest would otherwise suffer, was removed by our decisions relating to the enforcement of provisions of leases during a period of scarcity of housing. Block v. Hirsh, 256 U. S. 135; 41 S. Ct. 458; Marcus Browning Holding Co. v. Feldman, 256 U. S. 170; 41 S. Ct. 465; Edgar A. Levy Leasing Co. v. Siegel, 258 U. S. 242; 42 S. Ct. 289.”

In a recent New Jersey case, Bucsie v. Longworth Building and Loan Association (Court of Errors and Appeals, 1937), 119 N. J. L. 120 (at p. 123); 194 Atl. Rep. 857, 860, it was held:

“It is well settled, however, that the constitutional interdiction against statutes impairing the obligation of contracts does not prevent the state from exercising such powers as are vested in it for the promotion of the common weal, or are necessary for the general good of the public, though contracts previously entered into may thereby be affected. Home Building and Loan Association v. Blaisdell, supra, 290 U. S. (at p. 437); 54 S. Ct. 231; Manigault v. Springs, 199 U. S. 473; 26 S. Ct. 127; 50 L. Ed. 274. But the exercise of such powers is subject to the limitation that it must be reasonable under the conditions and the legislation must have substantial relation to its object and must not be arbitrary or discriminatory. Wolf Packing Co. v. Court of Industrial Relations, 262 U. S. 522, 535; 43 S. Ct. 630, 632; 67 L. Ed. 1103; Nebbia v. New York, 291 U. S. 502 (at p. 535); 54 S. Ct. 505; 78 L. Ed. 940.” (Italics supplied.)

In 2 Cooley on Constitutional Limitations (8th ed.) 1128, is set forth:

“The exercise of the power for the public welfare may inconvenience individuals, increase their labor and decrease the value of their property. It is a matter resting in the discretion of the legislature and the courts will not interfere therewith except where the regulations adopted are arbitrary, oppressive or unreasonable.

“The wisdom or expediency cannot he subjected to judicial review. But the power is subject to the limitations imposed by the Federal and State Constitutions upon every power of government and it will not be suffered to invade or impair the fundamental liberties of the citizens.”

It is not for the court to pass upon the wisdom of the act, that is for the legislative branch, hut assuming the facts warrant the declaration of the emergency, the action is not to be unbridled and unfettered but is circumscribed with certain limitations. Thus as to the legislation in question, it v/ould seem to leave open to determination the question whether the exercise of the power is arbitrary, discriminatory, oppressive or unreasonable.

The Emergency Act of the United States Government hereinbefore referred to and known as tlie Emergency Price Control Act of 1942 and its incident regulations has manifold provisions therein set forth for the protection and benefit of landlords, one of which is to fix rents which are generally fair and equitable.

Two of the leading eases relating to the subject of housing conditions under exigencies were: Block v. Hirsh, 256 U. S. 135; 41 S. Ct. 458, and Marcus Brown Co. v. Feldman, 256 U. S. 170; 41 S. Ct. 465. In the first case there was a review of legislation of Congress affecting the District of Columbia and in the second ease of legislation of the State of New York. In these Housing Acts machinery was provided to secure the landlord a reasonable rent. Block v. Hirsh, supra 256 U. S. (at p. 157); 41 S. Ct. 458.

In. the act, there is no safe guard to fix rents which are generally fair and reasonable. Since the measure of rent is that “as stipulated at the beginning of his tenancy” the landlord may be deprived of his property during the duration of the act and at the same time have to meet increased cost of taxes and maintenance. For instance the rates of municipal taxes for 1945 in the cities of Atlantic City, Margate and Ventnor show an increase over the year 1944.

In relation to the seeond category of the attack, the act is an invalid exercise of the police power in that the means adopted are discriminatory, oppressive and unreasonable, in that they provide no formula, safeguard or machinery to fix rents which are generally fair and equitable during the exigency.

In the language of Mr. Justice Perskie in the case of Wilentz v. Hendrickson (Court of Errors and Appeals, 1944), 135 N. J. Eq. 244 (at p. 251); 38 Atl. Rep. (2d) 199:

“Thus in the exercise of our undisputed right, historically imbedded in our jurisprudence to declare a statute unconstitutional and with proper regard for the self imposed limitations looking toward favoring the constitutionality of legislation, and deeply sensible of the respect and regard which we entertain for .our co-ordinate branches of our government, we find that we entertain no doubt as to the constitutionality of the challenged statutes.”

Conclusion.

The act is unconstitutional. The motion is denied.


author: Pee Cubiam.

text:
    ELENA GRABOL, PETITIONER-PROSECUTRIX, v. BORSTEIN ELECTRIC COMPANY AND LUMBERMEN’S MUTUAL CASUALTY INSURANCE COMPANY, RESPONDENTS-DEFENDANTS.
    Argued January 16, 1945
    Decided March 9, 1945.
    Before Brogan, Chief Justice, and Justices Dongbs and Pebskie.
    For the petitioner-prosecutrix, Isadore E. Hermann and Albert B. Melnik.

    For the respondents-defendants, Boceo Palese.

   Pee Cubiam.

This is an application for certiorari to review a judgment of the Burlington County Court of Common Plea in the ease of a petition for compensation filed by decedent-employee’s widow under the statute, B. 8. 34:15—1, et seq. The employee, a salesman in the employ of the defendant company, died in a tavern at Atsion, New Jersey, where he went in an endeavor to persuade the tavern proprietor that an electrically operated beer cooling system which he had installed could be improved to suit the proprietor’s requirements. His family doctor testified that some weeks before his death the decedent manifested an “auricular fibrillation,” i. ean irregularity of the heart beat.

The deputy commissioner dismissed the petition, holding that the burden of proving an accident resulting in death, which arose out of and in the course of the employment, had not been sustained. The Pleas, on appeal, affirmed. Application for certiorari to the Supreme Court Justice in the district was unsuccessful. Allocatur was refused. The application before us is to the court en banc. Thus two competent fact-finding tribunals have held that the instant case was not in which, under the proofs, the petition could be sustained. A justice of this court has held in effect that no debatable question of law or fact was open in the case and review was denied by him. We are of the same mind. It does not appear that the decedent met his death by accident which arose out of and in the course of the employment. Nothing untoward or out of the ordinary was proved as having occurred at or just preceding the time when the decedent died. To conclude otherwise would be to indulge in sheer speculation. The decedent died while he was in the course of his employment. That is all that appears. Neither his employment nor the duties he performed therein were factors in his untimely death. Compare Johnson v. Ulster Iron Works, 9 N. J. Mis. R. 239; affirmed, 109 N. J. L. 267.

Certiorari is denied.


text:
    FAMILY FINANCE CORPORATION, PLAINTIFF, v. MILDRED BUSCH AND LEON BUSCH, OTHERWISE KNOWN AS LOUIS SILK, DEFENDANTS.
    Argued January 16, 1945
    Decided February 7, 1945.
    Before Justices Parker and Colie.
    Por ihe defendants, Ira J. Katchen.

   Per Curiam.

On the facts laid before us in this case we think it indubitable that the defendants are entitled to a change of venue to Monmouth County. To that end a suitable rule may be entered in the clerk’s office.


author: Masucci, D. C. J.

text:
    District Court of the Second Judicial District of the County of Essex.
    EDWIN A. KIRCH & CO. (A CORPORATION OF NEW JERSEY), PLAINTIFF, v. HARRY B. O’HARE AND CATHERINE O’HARE, DEFENDANTS.
    Decided June 28, 1945.
    Eor the plaintiff, M&rvin Q. Wiener.

    Eor the defendants, pro se.

   Masucci, D. C. J.

This matter comes before the court upon a request by the clerk for instructions as to whether he is required to make a monthly inspection of the financial records of the sergeants-at-arms. At the same time there is before the court an inquiry by the sergeant-at-arms, first as to whether he is required to submit his financial records to the clerk for examination and, second, whether he is required to report to the judgment creditor or attorney before returning a writ of execution marked “no levy” or “unsatisfied.” Reference is made to chapters 123 and 135, of the laws of 1945, N. J. 8. A. 2:32-157.1, 2:32-153.1. It is pointed out that the two statutes use the word “constable” and do not use the word “sergeant-at-arms.”

It appears that the office of sergeant-at-arms of the District Court is created only by statute (N. J. S. A. 2:8—31). With the exception of the method of appointment and the term, the office of sergeant-at-arms of the District Court and the office of constable are similar and for the most part identical. The statute provides in part: “Sergeants-at-arms appointed under authority of this section shall, respectively, during their continuance in office, * * * he invested with and possess all tibe rights, privileges, powers and duties of a city or county constable, as the case may be, in all matters and proceedings appertaining to the court to which they, respectively, are attached; * * *” It may be noted that the sergeant-at-arms is invested with a constable’s rights, privileges and powers on the one hand and at the same time he is charged with a constable’s “duties” on the other hand.

After an examination of both chapter 123 and chapter 135 of the laws of 1945, the court can find no intent by the legislature to exempt sergeants-at-arms from the “duty” of keeping a full record of all moneys received; of submitting these to inspection; of depositing in a trust fund or of making a monthly remittance and a report as provided in chapter 123. Likewise the court can find no legislative intent to exempt the sergeant-at-arms from the “duty” of making a report on executions as required under chapter 135.

Having come to this conclusion as to the sergeant-at-arms and having heretofore directed the clerk to inspect constables’ accounts, as is in the statute provided, I have directed him to inspect sergeants’-at-arms accounts in the same manner.


author: Pee Curiam.

text:
    THE STATE OF NEW JERSEY, DEFENDANT IN ERROR, v. JOHN TULENKO, IMPLEADED WITH OTHERS, PLAINTIFF IN ERROR.
    Submitted May 2, 1944
    Decided September 22, 1944.
    Before Beogan, Chief Justice, and Justices Donges and Perseus.
    For the plaintiff in error, John 0. McGwire and Hyman Siegendorf.

    For the defendant in error, Walter D. Van Bip&r and John M. Ward.

   Pee Curiam.

Plaintiff in error was a member of tbe district election board for tbe third election district of tbe first ward in the City of Passaic on November 3d, 1942. He, with other members of the board, was indicted by tbe April, 1943, grand jury on a charge of non-feasance in office, arising out of certain alleged irregularities in the conduct of the general election in said district in 1942. Plaintiff in error was found guilty by tbe jury at a trial in the Passaic County Court of Quarter Sessions.

Plaintiff in error briefs nine points for reversal. The first four points attack the indictment as being faulty and insufficient. It is argued (1) that the indictment is duplicitous in that it charges several distinet offenses in a single count; (2) that it is "ambiguous and uncertain” "in that it does not give the accused reasonable notice of the act, law or statute against which he is called to defend himself;” (3 and 4) that it fails to charge a crime.

The indictment in this proceeding is in substantially the same form as in the case of State of New Jersey v. Monia et al., No. 3, May term, 1944, of the Supreme Court, recently decided and reported in 132 N. J. L. 91. The conclusion in that ease is dispositive of the grounds argued for reversal as to the sufficiency of the indictment in this case.

The next point is that the granting of a severance as to one defendant, on motion of the state, and the refusal to grant a continuance was error and prejudicial to plaintiff in error. Wo objection was raised as to the severance, and no harm to plaintiff in error is shown from such action. Motion was made for a continuance because the defendant against whom the indictment was not moved was desired as a witness, and because a policeman who was assigned to the election board for the election day in question was desired as a witness, and they were in the armed service. Wo showing was made as to the availability of either of these witnesses. It appeared that a number of adjournments had been granted to defendants, the last one two weeks preceding the trial. It does not appear that either of these witnesses was not available for service of subpoena or that any effort had been made to secure their attendance. Wor does it appear that these witnesses would have testified to any matters concerning which their testimony was desirable or not presented. Hence, it does not appear that there was any abuse of discretion in the action of the trial judge, or that the plaintiff in error was unjustly deprived of the presence of and benefit of essential testimony by the persons in question.

The next point has to do with the admission of tally sheets and ballots in evidence. A like question was dealt with in State v. Moma, supra, where it was held these records were admissible.

The seventh point has to do with the testimony of four witnesses for the state, who testified as to the results of a recount of the ballots in question. This question was held in State v. Moma, supra, to be without merit.

The eighth and ninth points have to do with the refusal of the trial court to direct an acquittal, and the contention that the verdict is against the weight of the evidence. Upon a review of the evidence we conclude that there was proof warranting the court in denying the motion for a directed acquittal and raising a jury question. Nor does it appear that the verdict is against the weight of the evidence. Hence this court will not set the verdict aside as the result of mistake, passion, prejudice or partiality. State v. Monia, supra.

The judgment is accordingly affirmed, with costs.