N. J.) (81 N. J. L. 640) CROTOIS v. PENNSYLVANIA R. CO. CROTOIS v. PENNSYLVANIA R. CO. (Court of Errors and Appeals of New Jersey. Sept. 21, 1911.) (Syllabus by the Court.) FALSE IMPRISONMENT (§ 15*) - DEFENSES — When the conductor of the defendant's train was justified in causing the arrest of the plaintiff for a violation of section 59 of the general railroad act of 1903 (P. L. p. 674) in knowingly and willfully proceeding on the defendant's train beyond the distance for which he had paid his fare without previously paying the additional fare for the additional distance, and with intent to avoid payment thereof, the plaintiff in such circumstances could not subject the defendant company to liability for false imprisonment by tendering to the conductor the amount of the fare after he has been thus legally arrested at the end of the journey. [Ed. Note.-For other cases, see False Imprisonment, Dec. Dig. § 15.*] Error to Supreme Court. Action by Frederick E. Crotois against the Pennsylvania Railroad Company. Judgment for plaintiff, and defendant brings error. Reversed. Vredenburgh, Wall & Carey, for plaintiff in error. Abner Kalisch and Samuel Kalisch, Jr., for defendant in error. 107 plaintiff was arrested at the instance of the conductor by an officer to whom the conductor had telephoned to be in waiting. Immediately following the plaintiff's arrest he was taken to an office in the terminal building, and there, according to the plaintiff's testimony, he tendered to the conductor the amount of the fare from New Brunswick to Jersey City; but according to the defendant's witnesses he did not tender such fare to the conductor. The arrest of the plaintiff was grounded upon an alleged violation of section 59 of the general railroad act of 1903 (P. L. p. 674). That section provides, among other things, that, "if any person having paid his fare (on any train of any railroad) for a certain distance shall knowingly and willfully proceed on such train beyond such distance without previously paying the additional fare for the additional distance, and with intent to avoid the payment thereof," he may be apprehended, etc. In laying down the law of the case in his charge to the jury, the learned trial judge assumed that the conductor was justified from the circumstances on the train in setting in motion section 59 of the act. The legal propriety of such assumption may well be doubted. Assuming, for present purposes, the validity of the section in question, which is disputed by counsel for the defendant in error, we incline to think that the evidence herein recited, and other evidence unnecessary now to be mentioned in detail, as to what occurred on the train, presented a jury question as to this phase of the case. The statute is penal, and must be strictly construed. In order to justify action under it, the passenger must have traveled, not only without paying his fare, but also with intent to avoid payment thereof. Badewitz v. West Jersey & Seashore R. R. Co., 75 N. J. Law, 268, 67 Atl. 1067; Tidey v. Erie Railroad Co., 66 N. J. Law, 384, 49 Atl. 427, affirmed 67 N. J. Law, 352, 51 Atl. 1110. But, in view of the result of the trial, it is unnecessary for us to now pass upon the propriety of the assumption by the trial judge that the conductor was justified as a matter of law in ordering the plaintiff's arrest. TRENCHARD, J. The plaintiff's action was for assault and battery and false imprisonment. On the trial, at the Essex circuit, it appeared that on March 12, 1909, the plaintiff was riding upon a local train of the defendant company, east bound from Philadelphia to Jersey City. According to the plaintiff's testimony, he was riding on the return half of an excursion ticket bought in Jersey City. It appeared that by the company's regulations three collection points for tickets upon local trains were established upon such route-the first at Philadelphia, the second at Trenton, the third at New Brunswick. Upon the trip in question the conductor, after leaving Philadelphia, took up the Trenton tickets, and punched those reading beyond Trenton, including the plaintiff's. After leaving Trenton the conductor proceeded to take up the New Brunswick tickets, and the plaintiff handed him his ticket, but whether it was punched and returned to the After having thus assumed that the conplaintiff is in dispute. After the train left ductor was justified in setting in motion the New Brunswick, the conductor demanded machinery of the fifty-ninth section, the trial plaintiff's ticket, whereupon the plaintiff in- judge further instructed the jury that the sisted that the conductor had taken his tick- arrest took place when the conductor pointet, and had not returned it. This the conduc- ed out the plaintiff to the officer on the plattor denied, and insisted that the plaintiff form in Jersey City. He then charged, in should look through his pockets, and the con- effect, that the right of the plaintiff to reductor looked through his collected tickets, cover depended upon whether the plaintiff but neither found the plaintiff's ticket. the plaintiff's ticket. thereafter, in the office to which he was takThereupon the conductor demanded fare from en, made a bona fide offer of the fare to the the plaintiff from New Brunswick to Jersey conductor, and concluded by saying: "Is it City, which the plaintiff refused to pay. Up- proved to your satisfaction that this money on the arrival of the train in Jersey City, the was offered to the conductor and refused by *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes If so, [ fact, the question of the force or competency of such affidavits does not come before this court upon writ of error reviewing the judgment of the Supreme Court. the conductor fairly and squarely? As already pointed out, the judge assumed, perhaps improperly, the existence of the facts necessary to constitute a justification for the arrest; but, at least, there was evidence warranting a finding of those facts by the jury. Supposing, therefore, the plaintiff had been lawfully arrested for a completed violation of section 59, he could not render the arrest unlawful, and subject the company to an action for false imprisonment, by afterwards tendering to the conductor the amount of his fare. The judgment below will be reversed, and a venire de novo awarded. (81 N. J. L. 672) EASTWOOD v. RUSSELL. [Ed. Note. For other cases, see Appeal and Error, Dec. Dig. § 1082.*] Error to Supreme Court. Proceedings between George E. Russell and John H. Eastwood for an assessment of a collateral inheritance tax. Judgment imposing tax was affirmed by the Supreme Court, and John H. Eastwood brings error. Affirmed. Lum, Tamblyn & Colyer and Frank H. Sommer, for plaintiff in error. Edmund Wilson, Atty. Gen., for defendant in error. VOORHEES, J. On March 24, 1908, John Eastwood, a resident of Belleville, in Essex county, died leaving a will wherein he appointed John H. Eastwood, the plaintiff in error, his executor, to whom he devised and bequeathed, with a few exceptions, his en (Court of Errors and Appeals of New Jersey. tire estate, valued at about $700,000. The Oct. 2, 1911.) (Syllabus by the Court.) 1. TAXATION (§ 862*)-COLLATERAL INHERITANCE TAX-AMENDMENT OF STATUTES. The act of 1906 (P. L. 1906, p. 432), amending "an act to tax intestates' estates, gifts, legacies, devises and collateral inheritance in certain cases" (P. L. 1894, p. 318), being unconstitutional by reason of its defective title, in no wise changed or affected the prior act of 1894, which latter act continued to exist as if the amendment of 1906 had never been passed. [Ed. Note. For other cases, see Taxation, Dec. Dig. § 862.*] estate so passing to and claimed by John H. Eastwood, a relative of the testator, but not a son or within the exempted degrees, was assessed March 15, 1909, by the surrogate of inheritance tax act of 1894 (P. L. 1894, p. Essex county under the so-called collateral 318), and the tax ascertained to be $35,435.65. The imposition of this tax was resisted by John H. Eastwood, but was affirmed by the Supreme Court. This writ of error is sued out to review that judgment. By act approved May 15, 1906 (P. L. p. 432), sections 1 and 4 of the above act of 1894 were amend 2. TAXATION (§_859*)-COLLATERAL INHERIT- ed. ANCE TAX-PROPERTY TAX." A tax levied upon property passing by will by virtue of the act of 1894 (P. L. 1894, p. 318) is not a property tax to which the provision of Const. art. 4, § 7, par. 12, was designed to apply. [Ed. Note.-For other cases, see Taxation, Dec. Dig. § 859.*] 3. STATUTES (§ 126*)-CONSTITUTIONAL LAW -TITLE OF ACT. It is not permissible for a person assessed under the act of 1894 (P. L. 1894, p. 318) upon property acquired by him by will to assert that the title of that act does not express its object, in that the title contains the word "gifts," while the body of the act places a tax on property transferred by "deed, sale or gift to take effect * * * * after the death of the grantor or bargainor," and that the alleged extra titular objects cannot be cut out of the act, because the act in this regard is severable, allowing the excision of the asserted objectionable features. In Neilson v. Russell, 76 N. J. Law, 655, 71 Atl. 286, 19 L. R. A. (N. S.) 887, 131 Am. St. Rep. 673, this court held that the purpose of the act of 1894 was not to impose a transfer or succession tax, but legacy duties. In Dixon v. Russell, 79 N. J. Law, 490, 76 Atl. 982, we likewise held that the title of the amendment of 1906 "contains no intimation that the purpose of the statute as amended is to impose taxes upon the transfer of property which has been bequeathed by a testator," and declared the act of 1906 invalid because its object was not expressed within its title. Const. art. 4, § 7, par. 4. [1] It is here argued by the plaintiff in er ror that the amendment of 1906 (so far as concerns matters arising after its enactment) wiped out and rendered nugatory, sections 1 and 4 of the act of 1894 by substituting the [Ed. Note.-For other cases, see Statutes, act of 1906, and, the latter act having been Cent. Dig. § 195; Dec. Dig. § 126.*] 4. APPEAL AND ERROR (§ 1082*)-REVIEWQUESTIONS OF FACT. Where a person assessed under the act of 1894 (P. L. 1894, p. 318) contends that the property, which is the subject of the tax passed to him, not by will, but by contract between him and the testator, and presents ex parte affidavits to the surrogate, to prove such agreement, and the Supreme Court on certiorari removing said assessment for review makes no finding of declared unconstitutional, as above stated, there was no legislation extant at the time of the testator's death capable of sustaining the tax. The answer to this proposition is that the act of 1906, being unconstitutional, was without effect at all upon the act of 1894. Central R. R. Co. of N. J. v. State Board of Assessors, 75 N. J. Law, 786, 69 Atl. 245, is in point, where it is said: "The N. J.) EASTWOOD v. RUSSELL 109 fact that the supplement of May 18, 1906, is | and the county courts in 1895, when the void does not in our judgment operate to unconstitutional acts making the county destroy the act itself. The supplement nev- judges elective (P. L. 1895, 323, 647, 807) er had any vitality. It is as if it had never were declared void in Schalk v. Wrightbeen passed, for it cannot be conceived that son, 58 N. J. Law, 50, 32 Atl. 820, and in the Legislature intended that the whole act Johnson v. State, 59 N. J. Law, 271, 35 Atl. should fail unless the provision of the sup- 787, Id., 59 N. J. Law, 535, 37 Atl. 949, 39 plement could be ingrafted upon it." The Atl. 646, 38 L. R. A. 373, and might have rencontrary of this proposition is, however, in- dered insecure the practice in error when sisted upon by the plaintiff in error to this the Legislature attempted to provide for a extent, as set out in his brief: "An uncon- review of the facts by writ of error, at first in stitutional statute is nevertheless a statute. 1890 (P. L. 1890, p. 33) declared unconstituThat, though it be judicially declared unen- tional in Falkner v. Dorland, 54 N. J. Law, forceable because in conflict with the or- 409, 24 Atl. 403, and in C. R. R. of N. J. ganic law, still remains an enactment of leg- v. Tunison, 55 N. J. Law, 561, 27 Atl. 929, islative intent which the courts must reckon and again in 1899 (P. L. 1899, p. 323) dewith, and which the judicial department has clared invalid in Flanigan v. Guggenheim no power to expunge." We are referred to Smelting Co., 63 N. J. Law, 647, 44 Atl. 762. the following cases as supporting this prin- Lang v. Bayonne supra is not pertinent. The ciple: Rader v. Township of Union, 39 N. J. learned Chief Justice in that case said: "I Law, 509; Union Township, Committee of, v. am unable to accept as sound doctrine Rader, 41 N. J. Law, 617; Atty. General v. * that an unconstitutional law is Angelsea, 58 N. J. Law, 372, 33 Atl. 971; void ab initio, and affords no protection for Rutgers College v. Morgan, 70 N. J. Law, acts done under its sanction." And proceed477, 57 Atl. 250; Riccio v. Hoboken, 69 N. J. ed to hold that it must be regarded as valid, Law, 664, 55 Atl. 1109, 63 L. R. A. 485; Lang until declared unconstitutional, as far as inv. Bayonne, 74 N. J. Law, 455, 68 Atl. 90, 15 dividual judgment and obedience thereto are L. R. A. (N. S.) 93, 122 Am. St. Rep. 391; involved. It must also be borne in mind Smith v. Howell, 60 N. J. Law, 384, 38 Atl. that, when the judgment of a court declares 180; Allison v. Corker, 67 N. J. Law, 601, 52 what the law is, that declaration means that Atl. 362, 60 L. R. A. 564. The theory is that it has always existed as so declared. The because an unconstitutional act may form act of 1906, being unconstitutional, by reathe basis of an amendment which eliminates son of its defective title, in no wise changits vice, and thereby become a valid enact- ed or affected the prior act of 1894, which ment, there must be substance in the previ- latter act continued to exist as if the act of ous faulty legislation to give this result. Al- 1906 had never been passed. lison v. Corker, supra, is the leading case, But the plaintiff in error attacks the act holding that the judicial department pro- of 1894 itself as unconstitutional, and argues ceeds with reference to unconstitutional leg- that the imposed tax should be set aside. islation in personam, and therefore adjudg-The reasoning is that the right to acquire ed an act merely unenforceable, but still ex- property through acts inter vivos is a natuistent and capable of vitalization. It is to ral and unalienable right, included in the be noted that this case, as well as those Constitution-section 1, article 1-(Brennan above cited which bear upon this subject, v. United Hatters, 73 N. J. Law, 729, 65 Atl. carefully limits its scope to acts, the body of 165, 9 L. R. A. [N. S.] 254, 118 Am. St. Rep. which contains the infirmity, and not to 727), while the right of acquisition, through those having a faulty title. Aside, however, intestate succession or testamentary disposifrom this consideration, it is not perceived tion, is a mere creature of the law, existing how an amendatory act unenforceable, if by the favor of the state. you will, because of a title defective, so as [2] The argument further continues that to be always and under all circumstances in- "property" acquired by either of these two effective, can be held to have changed, or in methods is subject to taxation, but only in any way modified the prior valid act upon the manner prescribed by article 4, § 7, par. which it was sought to be ingrafted. As 12, Const., reading: "Property shall be asabove said, in it, it wrought no change; hence sessed for taxes under general laws and by the original act never passed out of exist- uniform rules, according to its true value." ence, and needed no revivifying.. Therefore So, if the imposition made by the act of 1894 the effect of Dixon v. Russell was not to re- is a tax on property, it must fall, because of vive the act of 1894, but to declare that it the various exemptions made by the act, but, had in no way been altered by the attempted if an exaction upon the succession, it may amendment of 1906. be justified because that succession exists by The dangers inhering in holding that abor- the grace of the state; such not being a ditive attempts to alter laws should have the rect tax upon property. But, because there effect of nullifying the law as it stood be- is united in the act as well property transfore are too evident to require any comment. ferred by "deed, grant, sale or gift made or It is enough to suggest that a yielding to intended to take effect in possession or enthis argument might have resulted in the joyment after the death of the grantor or abolition of the court of oyer and terminer | bargainor" rights acquired directly from acts inter vivos, that acquisition is a right, must fall, and that there was no legislative not given by the grace of the state, and the imposition, though termed a succession tax, is in reality a tax upon property. The plaintiff in error has not acquired property by an act inter vivos, and therefore that aspect of the statute is not here involved. What passed to him, and so far as this case shows is claimed by him, clearly must be in virtue of the gracious policy of the state in granting to him a privilege to acquire it through a testament, and not in the assertion of his right "by deed, grant, sale or gift." Therefore we do not find it necessary to deal with the contention that the tax is a property tax, to which the provision of the Constitution was designed to apply. In Neilson v. Russell, supra, a legacy duty was declared to be imposed by the act. That is not a tax regulated by the above paragraph of the Constitution. This contention, therefore, fails. [3] But it is further urged that the title of the act of 1894 does not express its object in that the title contains the word "gifts," while the body of the act places a tax on property transferred by "deed, grant, sale or gift * ** to take effect * after the death of the * * * grantor or bargainor." We find it unnecessary to consider this argument, for the reason that the plaintiff in error must derive his right to the property in question under a will, and not as a grantee, or bargainee, as hereinbefore noted and as hereinafter explained, and therefore this attack upon the statute cannot render the act inoperative, as against the plaintiff in error, if there may be exscinded from the body of the act those objects asserted by him to have been omitted in the title. The rule in such cases was laid down in Rader v. Township of Union, 39 N. J. Law, 510, as follows: "It will answer every purpose of law and of public policy to declare in such cases as the one now under advisement the unlawful superaddition to the declared object of the statute to be inoperative and void. This can always be done when the objectionable feature stands by itself, and is separable as a distinct thing from the body of the act, and there is no reason to suppose that the portion thus eliminated constituted an essential motive to the enactment of the law." But it is said that the alleged extra titular objects cannot be cut out of the act, because the enactment was of a comprehensive scheme of taxation, and the view is not warranted that the Legislature would have passed such a statute for the remainder only. The very distinction which counsel makes between the privilege of the transmission of property by testament and succession and the right to transfer it by contract, if it be a valid distinction, is so plain that it would seem to overthrow the argument that the two provisions of the act intent to pass the act, save as a whole. It seems to be clear that this portion can be separated from the rest in each instance, and there will then remain a complete valid statute, embracing the primary object of the Legislature, capable of being enforced afterwards, and that such remainder is not dependent upon the eliminated portion but on the contrary, is quite independent thereof, and separable therefrom so as to overcome any presumption of legislative intent to pass the act only in its original entirety. New Brunswick v. Fitzgerald, 48 N. J. Law, 457, 8 Atl. 729; Johnson v. State, 59 N. J. Law, 538, 37 Atl. 949, 39 Atl. 646, 38 L. R. A. 373; Fagan v. Payne, 75 N. J. Law, 851, 59 Atl. 568. [4] Still another position taken against the tax is that John H. Eastwood became entitled to the property by virtue of a contract made between him and the testator in the latter's lifetime, and not by testamentary succession. The alleged agreement is set forth in certain ex parte affidavits presented to the surrogate who fixed the tax at the time the matter was before him for that purpose. The substance of the agreement thus displayed is that when the plaintiff in error was less than a year old his parents and the testator agreed that testator would adopt the infant, and maintain, educate, and take care of him, and subsequently to the adoption it was the understanding and agreement between the testator and the infant that in consideration of his continuing to live with the testator (to whom he had gone in infancy) as a son and of his valuable services rendered to the testator the testator would treat him as a son, and, upon testator's death, he should receive testator's property. The attempted proof of the facts by ex parte affidavits was in no way effective to bind the state in an adjudication by the surrogate, whether he was or was not invested with jurisdiction for that purpose. They were not competent proof in the Supreme Court in the certiorari proceeding. Klein v. Adams Express Co., 61 N. J. Law, 530, 40 Atl. 445; State v. Gardner, 34 N. J. Law, 327. No affidavits were taken in that court pursuant to the rule granted for that purpose, and no finding of fact was made by the Supreme Court. If the Supreme Court had made a finding favorable to the contention of the plaintiff in error, there would be a question whether there was any testimony to support such finding, but, inasmuch as the court has not made any such finding, the question as to the force or competency of the affidavits is not before us. Sisters of Charity v. Cory, Col. 73 N. J. Law, 699, 65 Atl. 500. For aught that appears in the record, the plaintiff in error claims under the will of the testator. The judgment of the Supreme Court must N. J.) (81 N. J. L. 479) MCCOOL v. WEST JERSEY & S. R. CO. McCOOL v. WEST JERSEY & S. R. CO. 111 As the plaintiff approached the crossing, his view of the tracks on the right-hand or southerly side was obstructed, first, by a (Court of Errors and Appeals of New Jersey. board fence bounding the property of one Sept. 14, 1911.) (Syllabus by the Court.) 1. RAILROADS (§ 350*)-ACCIDENT AT CROSSING CONTRIBUTORY NEGLIGENCE. A traveler who in approaching a three-track railroad grade crossing stopped when his horse's head was 10 or 12 feet from the nearest rail of the nearest track, upon which a freight train was passing, and waited before going forward until it had passed out of sight 200 feet or more away behind a permanent obstruction to the view, cannot be said to be negligent as a matter of law in not waiting for the freight train to get further away, when there was no evidence of any noise from it interfering with the plaintiff's hearing at the time he started forward. [Ed. Note. For other cases, see Railroads, Cent. Dig. § 1174; Dec. Dig. § 350.*] 2. RAILROADS (§ 350*)-INJURY TO TRAVELER -CONTRIBUTORY NEGLIGENCE. When from the evidence the jury may legitimately find that the view of a traveler approaching a three-track railroad grade crossing was so obstructed to his right by a permanent obstruction that up to and at the last point at which he might reasonably decide that it was necessary for him to give up looking to the right, and either look to the left or ahead for the footing of his horse, he could not see the train unknown to him approaching from the right at great speed, and without giving the statutory signals, and which struck his wagon as he was clearing the third track, the question of the alleged contributory negligence of the plaintiff is for the jury. [Ed. Note. For other cases, see, Railroads, Dec. Dig. § 350.*] Gummere, C. J., and Swayze, Bergen, and Voorhees, JJ., dissenting. Error to Supreme Court. Action by John McCool against the West Jersey & Seashore Railroad Company. Judgment for defendant, and plaintiff brings er ror. Reversed. Wescott & Wescott, for plaintiff in error. Gaskill & Gaskul, for defendant in error. TRENCHARD, J. This writ of error brings up for review a judgment entered upon a verdict directed for the defendant at the Camden circuit in an action brought to recover damages for injuries sustained in a crossing accident. The verdict was directed for the defendant upon the ground of the plaintiff's contributory negligence. At the trial it appeared that the plaintiff was a young man 24 years of age. In the month of October, 1907, he was driving a light, covered delivery wagon, drawn by a slow, old horse, in an easterly direction, along Kohler street, in South Gloucester, and came to the crossing of defendant's tracks, upon which both steam and electric trains are operated, the latter by the third-rail system. There are three tracks, all of them used for trains, and running northerly and southerly and at right angles to the street. Howlett, and extending for a distance of 100 feet parallel to and about 22 feet distant westerly from the nearest rail of the first or westerly track. This fence was about six feet high, and obstructed a view of the tracks, but not of a train coming upon the tracks. Beyond the fence, and standing seven feet nearer to the tracks and running parallel therewith for a distance of 75 feet or more, was a high, tight signboard, the top of which was 13 feet above the level of the rail, and which admittedly constituted a complete obstruction to the effective view of the track to the south. The proofs show that a person traveling in the center of Kohler street does not get a view of the tracks to the south for a sufficient distance to be of any practical use until he has at least reached a point 48 feet west from the nearest rail of the furthest track, which point is about 24 feet westerly from the nearest rail of the nearest track. At that point a person can see the railroad to the south far enough to give him a view of about 650 feet of the easterly or third track, upon which an electric train of three cars was coming, unknown to the plaintiff, and admittedly without giving the statutory signals. Of course, from that point forward the view down the track lengthens. About 1100 feet from the crossing the track curves towards the west. As the plaintiff approached the crossing, a freight train was passing on the westerly or nearest track, going south. It was a long train, made up of 22 cars, and drawn by a that he stopped long enough for the freight locomotive engine. The plaintiff testified train to go 100 or 200 feet down the road. He says: "I waited for the freight train to get out of the way so I could have a clear vision of the track, and see if there were any other trains coming." Van Dexter, a witness called for the defense, testified that the freight train had got about 200 yards from the Kohler street crossing when McCool started to go across, or when his horse got his feet on the first track; and, again, he says that the freight train had got 100 or 150 feet beyond the sign referred to when the horse's feet reached the nearest rail. The same witness further testified that when the horse stopped (short of the crossing), and while the freight train was passing, the horse's head was about 10 or 12 feet from the nearest rail. The plaintiff testified that after waiting for the passing of the freight train to open up a clear view of the track, and then looking carefully both ways and listening, and seeing and hearing nothing, he proceeded slowly, continuing to look and listen, and the fact is that he reached the furthest track and his horse had got clear *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes |