(83 N. J. Eq. 510)

RUBBER & CELLULOID HARNESS TRIM-
MING CO. v. RUBBER-BOUND

BRUSH CO. et al.

(Court of Chancery of New Jersey. July 18, 1914.)

1. CORPORATIONS (§ 37*)-EXISTENCE-TERMREINCORPORATION.

Complainant was incorporated, under the general corporation act (P. L. 1849, p. 300), January 23, 1873; its franchise to terminate January 1, 1900. In 1874 the Legislature passed a special act (P. L. 1874, p. 1071) to extend and amend its corporate powers and privileges, section 11 of which provided that the corporation should not, from the date of the act, be bound or affected by the act of 1849, under which it was incorporated, or its supplements, except as prescribed by the act of 1874. Held, that complainant's corporate existence under the act of 1874 continued indefinitely, and

did not therefore terminate in accordance with its original articles.

[Ed. Note.-For other cases, see Corporations, Cent. Dig. § 105; Dec. Dig. § 37.*] 2. STATUTES (§ 113*)-PLURALITY OF OBJECTS -SPECIAL LAWS.

Act March 17, 1874 (P. L. 1874, p. 1071), is entitled "An act to extend, amend, and increase the corporate powers and privileges of the Celluloid Harness Trimming Company," and section 11 of the act provides that the company shall not, from the date of the approval of the act, be bound, controlled, or in any wise affected by the general corporation act of 1849 (P. L. p. 300), under which it was organized, or any provisions thereof not incorporated in the act of 1874. Held, that such act is not invalid as containing an object not expressed in its title.

[Ed. Note. For other cases, see Statutes, Cent. Dig. §§ 141-144; Dec. Dig. § 113.*] 3. EQUITY (§ 447*) BILL OF REVIEW GROUNDS-NEWLY DISCOVERED EVIDENCE.

Where the date of the alleged expiration of a corporation's charter appeared from the public records, the fact that its corporate life had expired at the time it brought suit against defendant for unlawful competition could not be said to constitute newly discovered evidence sufficient to sustain a bill to review a judgment against defendant.

against the defendants in accordance with the prayer of the bill. 81 N. J. Eq. 419, 88 Atl. 210. The decree was affirmed on appeal. 81 N. J. Eq. 519, 88 Atl. 210.

The defendants now seek to review the decree in that case and set the same aside upon the ground that, at the time of the filing of the bill and of the making of the decree and of the affirmance on appeal, there was no such corporation as the Rubber & Celluloid Harness Trimming Company; its franchise to be a corporation having expired on the 1st day of January, 1900. They allege that they did not discover the fact until after the affirmance, and they allege, therefore, that the fact is a newly discovered fact and amounts to newly discovered evidence, within the rules touching the filing of

bills of review.

[1] The facts are these. The complainant was incorporated under the general corporation laws of this state on January 23, 1873, by virtue of an act of the Legislature entitled "An act to authorize the establishment and to prescribe the duties of companies for manufacturing and other purposes," approved March 2, 1849 (P. L. p. 300). The incorporation papers provided that the company would commence its existence on February 8, 1873, and terminate on January 1, 1900.

In 1874 the Legislature passed an act entitled "An act to extend, amend and increase the corporate powers and privileges of the Celluloid Harness Trimming Company"; it was approved on March 17, 1874 (P. L. 1874, p. 1071). This act recited the organization of the company under the act of 1849, and ratified and confirmed the incorporation and the election of directors, and further constituted the company a body corporate in fact and in law by the name which it had chosen, for the purpose of manufacturing and selling celluloid harness trimmings and articles used therewith and for carrying on any business incident thereto in this state. The eleventh section of that act provided that the comSuit by the Rubber & Celluloid Harness pany should not, from the date of the apTrimming Company against the Rubber-proval of the act, be bound, controlled, or in Bound Brush Company and others. On defendants' motion for leave to file a bill of review. Denied.

[Ed. Note.-For other cases, see Equity, Cent. Dig. §§ 1091-1094; Dec. Dig. § 447.*]

See, also, 81 N. J. Eq. 519, 88 Atl. 210.

Carl V. Vogt, of Morristown, for the motion. Thomas M. Kays, of Newton, and Alfred F. Skinner, of Newark, opposed.

HOWELL, V. C. In 1911 the Rubber & Celluloid Harness Trimming Company filed its bill in this court against the RubberBound Brush Company and others, to restrain the defendants from the commission of certain acts which it was alleged amounted to unfair trade and unfair competition on the part of the defendants, and such proceedings were had therein that on December 6, 1912, a final decree was entered therein

any wise affected by the said act of 1849 or any of its provisions or any supplements thereto, except as is in the act of 1874 prescribed. On November 29, 1877, the name of the company was changed to Rubber & Celluloid Harness Trimming Company, being the name now used by it in the prosecution of its business.

From these facts the defendants conceived that the company ceased to exist on January 1, 1900, and that therefore the decree in this suit should not and in fact could not have been made in its favor; there being no legal entity, bearing the name assumed by the complainants, in whose favor the decree could be made.

I think the motion should be denied upon the ground that the act of 1874 continued the existence of the complainant corporation in

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes 91 A.-41

which every person has free access. The evidence so called was as accessible to the defendant at the time this suit was brought as it is to-day. The public offices in which it resides remain to-day as they were then, and, so far as I can see, the only possible reason for calling the evidence newly discovered evidence is that it was not searched for at the time when it should have been set up by proper pleading in the cause. The whole subject of newly discovered evidence, so far as it applies to bills of review, was discussed by Vice Chancellor Garrison in Richards v. Shaw, 77 N. J. Eq. 399, 77 Atl. 618; quoting from earlier cases, he says:

definitely, and that by the plainest construc- tion consists of certain public records to tion. After reciting the incorporation of the company under the act of 1849 and the election of directors and the completion of the organization thereunder, it proceeds to ratify all that had been done in the past with regard to those matters and to reincorporate it (section 1), and then it provides in the eleventh section that, after the approval of the act of 1874, the company should cease to be bound, controlled, or in any wise affected by the act of 1849, or by any of its provisions, or by any supplements thereto, except as is prescribed in the act of 1874. I do not see how words could make it plainer that it was the intention of the Legislature to withdraw the corporation from the operation of the general corporation laws and place it under the supervision of the act of 1874.

[2] It is claimed, however, that this act is unconstitutional, for the reason that it violates a provision of the Constitution then in force, which required that every law should embrace but one object, and that such object should be expressed in the title. Particularly is this objection urged to section 11. On this point the facts are quite similar to those in the case of State ex rel. Walter v. Town of Union, 33 N. J. Law, 350. There the act complained of was entitled "An act to amend an act to incorporate the town of Union in the township of Union in the county of Hudson, approved March 29, 1864." P. L. 1868, p. 351. This act validated an ordinance passed by the town of Union, but passed irregularly, for the construction of a sewer in the Hackensack plank road. It is claimed that this purpose was not expressed in the title. The Supreme Court, however, held the contrary. The opinion says:

"The unity of the object must be sought in the end which the legislative act purposes to accomplish, and not in the details provided to reach that end. The degree of particularity which must be used in the title of an act rests in the legislative discretion, and is not defined by the Constitution. There are many cases where the object might with great propriety be more specifically stated; yet the generality of the title will not be fatal to the act if, by fair intendment, it can be connected with it."

And it holds the general title, which was given to the act, to be in accordance with the provisions of the Constitution. To the same effect is State ex rel. Doyle v. Newark, 34 N. J. Law, 236, also a case in the Supreme Court. The same rule was announced by the Court of Errors and Appeals in Newark v. Mount Pleasant Cemetery Company, 58 N. J. Law, 168, 33 Atl. 396, and by Chancellor McGill in this court in Stockton v. Central Railroad, 50 N. J. Eq. 52, 69;† Sawter v. Shoenthal, 83 N. J. Law, 499, 83 Atl. 1004; Shultise v. O'Neill (Sup.) 88 Atl. 854. Following these authorities I must conclude that the act is constitutional.

[3] There is another reason why this motion cannot prevail. It is claimed that the evidence of the nonexistence of this corpora

"When application is made to file a bill of review upon the discovery of new matter, the rule is that the matter must not only be new, but must be such as the party, by the use of reasonable diligence, could not have known" of it. "If there be any laches or negligence in this respect, that destroys the title to the relief."

Such a bill (of review) must rest upon some new matter which has been discovered after the decree and could not possibly have been In my used when the decree was made. opinion the evidence, which is now claimed to be newly discovered, is not such in any sense whatever. It cannot be called newly discovered evidence for the purpose of a bill of review, because it did not occur to the defendant to make a search for it. The motion must be denied.

SCHARF v. REISER. (Supreme Court of New Jersey. June, 1914.) 1. STATUTES (§ 51*)-INCORPORATING LAW BY REFERENCE.

P. L. 1912, p. 630, as to jurisdiction of "disputes involving the domestic relation," in defining such term to mean all complaints for violation of the Disorderly Persons Act of 1898 (P. L. 1898, p. 942), does not provide that any existing law, or part thereof, shall be made or deemed a part of the act, or shall be applicable, within the prohibition of the Constitution that this shall not be done, except by inserting it.

[Ed. Note. For other cases, see Statutes, Cent. Dig. § 48; Dec. Dig. § 51.*] 2. STATUTES (§ 64*)-EFFECT OF PARTIAL IN

VALIDITY.

If P. L. 1912, p. 630, as to jurisdiction of "disputes involving the domestic relation," in defining such term by reference to an existing law, be considered in violation of the Constitution, it could be disregarded as a separable provision, leaving in effect the further definition thereof, as all charges against any person for abandonment of wife or children.

[Ed. Note.-For other cases, see Statutes, Cent. Dig. §§ 58-66; Dec. Dig. § 64.*]

3. STATUTES (§§ 107, 117*)-TITLE AND SUB

JECT.

The title of P. L. 1912, p. 630, "An act providing for the hearing and determination of disputes or matters affecting the domestic relation, and conferring jurisdiction on the county juvenile courts," not only embraces, but expresses, the single object of the act, the hearing and de

•For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r İndexes

† 24 Atl. 964, 17 L. R. A. 97.

termination of disputes or matters affecting the | giving of the bond is suspended. The judgdomestic relation.

[Ed. Note. For other cases, see Statutes, Cent. Dig. 88 121-134, 154–157; Dec. Dig. §§

107, 117.*]

ment in this case did not follow the language of the act, but provided that “in default of payments to the overseer of the poor, Reiser 4. HUSBAND AND WIFE (§ 315*)-ABANDON- should be committed to the county jail, there MENT SUPPORT ORDERS-COMMITMENT to stand committed until the further order TO JAIL.

Under the Poor Law (P. L. 1911, p. 403, 8 33), providing that an order for support shall provide for a bond, and that in default thereof accused shall be committed till it be given, unless, in the discretion of the magistrate, the giving of it be suspended, a provision of the judgment that in default of payments to the overseer of the poor, defendant be committed to jail, there to stand committed till the further order of the court, amounting to a committing at the discretion of the court, is unauthorized.

[Ed. Note.-For other cases, see Husband and

of the court, unless he shall sooner be discharged by due process of law." This amounts to committing him at the discretion of the court, and I find no statutory authority for that procedure.

The judgment, therefore, I think must be reversed.

CIVIL SERVICE COMMISSION v.
O'NEILL. †

(Syllabus by the Court.) MUNICIPAL CORPORATIONS (§ 182*)—CHIEF OF

Wife, Cent. Dig. §§ 679-682; Dec. Dig. § 315.*] (Supreme Court of New Jersey. Nov. 19, 1913.) Proceeding by Jacob Scharf, overseer of the poor of the town of Union, against Albert Reiser. There was a judgment against defendant, and he brings certiorari. Reversed. Harlan Besson, of Hoboken, for prosecutor. Merritt Lane, of Jersey City, for defendant.

POLICE-UNCLASSIFIED SERVICE.

The chief of police in cities governed by the charter act of 1908, p. 486 (2 Comp. St. 1910, P. 1239), is by said act constituted a head of department, and therefore in the unclassified service under section 11 of the Civil Service Act of 1908, p. 235 (3 Comp. St. 1910, p. 3795).

Corporations, Cent. Dig. §§ 466-471; Dec. Dig. [Ed. Note.-For other cases, see Municipal

Application by Edmund Wilson, Attorney General, on the relation of the Civil Service Commission of New Jersey, for a writ of quo warranto against William H. O'Neill. murrer to information sustained. Judgment affirmed by Court of Errors and Appeals, 91

Atl. 644.

De

Argued before GUMMERE, C. J., and PARKER and KALISCH, JJ.

Nelson B. Gaskill, Asst. Atty. Gen., for relator. Borden D. Whiting, of Newark, for respondent.

SWAYZE, J. [1-4] This is a proceeding under chapter 360 of the Laws of 1912. I see no force in the objection to the constitutionality of this act. The reference to the act relating§ 182.*] to disorderly persons does not amount to a provision that any existing law, or any part thereof, shall be made or deemed a part of the act, nor does it intend that any existing law, or part thereof, shall be applicable. All it does is to define the words "disputes involving the domestic relation" by a reference to the Disorderly Persons Act of 1898 (P. L. 1898, p. 942). Even if this were objectionable under the constitutional provision (and I think it is not), it is a severable provision of the act of 1912, which would still suffice to give the juvenile court jurisdiction of all charges against any person for abandonment or nonsupport of wives or children. That is quite enough to cover the present case. Nor do I find any difficulty in the title of the act. It seems to me that it not only embraces, but expresses the object of the legislation, and has but a single object in view, viz., the hearing and determination of disputes or matters affecting the domestic relation. As a part of that scheme jurisdiction is conferred upon the juvenile courts. The procedure now is governed by Poor Law of 1911, c. 196. This makes a change in that it permits the wife of a deserting husband to make a complaint without the intervention of the overseer of the poor. That was done in this case, and I see no objection to it. The procedure is that pointed out in sections 27 to 33, inclusive, and the procedure seems to have been carefully followed in all respects except one. The order authorized by section 33 provides for a bond, and, in default thereof, that accused shall be committed to the county jail or penitentiary until such bond shall be given, unless, in the discretion of the magistrate, the *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes † Duplicate opinion of 88 Atl. 946,

PARKER, J. The controversy relates to the office of chief of police of the city of East Orange. The information attacks the appointment of respondent, O'Neill, by the mayor and his confirmation by the council as in contravention of the Civil Service Act of 1908 (C. S. p. 3795), which was adopted by East Orange. The information sets up that East Orange adopted as its charter the referendum charter act of 1908 (P. L. p. 486; C. S. p. 1239), and also adopted the Civil Service Act: that the Commission classified the office of chief of police in the competitive class, and gave due notice thereof, but that disregarding the Civil Service Act the mayor nominated respondent to the council as chief of police, the nomination was confirmed by the council, and that he assumed and still exercises said office unlawfully in violation of said act. The demurrer specifies several grounds, of which only the first and third need be considered. The first is, in substance, that the classification of the office in question by the Commission was without warrant of

law; the third, that the Civil Service Act | constituted to perform them. On the other does not apply to said office.

We are clear that whatever weakness may inhere in respondent's title to the office, it is invulnerable to the attack made by the present information. By section 11 of the Civil Service Act, all heads of departments of municipalities adopting the act are in the un- (Court of Errors and Appeals of New Jersey.

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

It was conceded that the collision occurred about 8:30 p. m. on September 9, 1913, on Whalley avenue, in New Haven, at a point some distance west of Westville Center. The automobile bus in which the plaintiff was riding was proceeding in a westerly direction evidence that the plaintiff offered evidence and the trolley car in an easterly direction. The collision occurred about midway between Dayton street and West Prospect street. The defendant company maintains a single-track trolley line on Whalley avenue at this point where the accident occurred. The roadway to

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes