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N. J.)

STATE V. JOHNSON

657

(82 N. J. L. 330)

| to said act (P. L. 1908, p. 30) requires the STATE V. JOHNSON.

county clerk to preserve such lists for five (Supreme Court of New Jersey. Nov. 27, years. It seems to us that the duty imposed 1911.)

upon the clerk under the above legislation to (Syllabus by the Court.)

preserve such registers in his office for the INDICTMENT AND INFORMATION ($ 137*)-OF-term of five years is a part of the election

FENSES AGAINST ELECTION LAWS-QUASH- law intended to aid in insuring the purity ING INDICTMENT.

of elections, and to assist in the discovery The act concerning elections requires the county clerk to preserve for a period of five and prosecution of frauds, and that, if the years, after they are deposited with him reg- clerk should allow such registry lists to go istry lists used at an election and checked to out of his possession during the forbidden indicate persons voting thereat. makes it a misdemeanor for any officer to will period in such manner as to afford the opfully or negligently violate any duty imposed portunity to alter or mutilate them, it would on him by the act. The defendant was indicted be a violation of the act relating to elections, for withdrawing, removing, and carrying away because in our opinion such registers are a from the possession of the county clerk certain registers which had been used and checked at part of the election proceedings. If the an election. Held that, if the clerk violated county clerk can allow the registers to be his duty in allowing the registers to be removed removed and carried away by any one who out of his possession through the procurement, aiding, and assisting of the defendant, it is not may apply for them, alterations and mutilaso manifest that no judgment could be render- tions would be comparatively easy, and the ed on the indictment that the discretion to registers become of small value as records of quash it ought to be exercised.

the manner in which the election had been [Ed. Note.-For_other cases, see Indictment and Information, Dec. Dig. § 137.*]

conducted. We think it is clear that this

legislation requires the county clerk to preCertiorari to review indictment for viola- serve these registers in the form he receiytion of election law by Enoch L. Johnson. ed them from the clerks of the board of regHeard on motion to quash indictment. De istry and elections, and that he is not prenied.

serving such lists within the meaning of the Argued November term, 1911, before GAR- act when he allows them to be withdrawn RISON, PARKER, and BERGEN, JJ.

from his possession. He is to preserve them, Edmund Wilson, Atty. Gen., for the State. and this is not done when he allows a person, French & Richards and Gilbert Collins, for without statutory authority, to withdraw defendant.

them from his custody and control, and thus

subject them to unlawful changes and alteraBERGEN, J. The writ allowed in this tions, and, if he does so, it is not so clear proceeding brings into this court from the that he would not be guilty of a violation of court of oyer and terminer of the county of the act concerning elections as to warrant Atlantic an indictment against the defend the quashing of an indictment if one were ant, and a motion is now made to quash it. presented against him for such neglect to The indictment, among other things, sets out preserve the registers, because the preservathat at a general election held in Atlantic tion is a duty which the law has imposed county in November, 1910, the clerks of the upon the county clerk, and under section 197 respective boards of registry and elections, of the act to regulate elections (Revision of as required by law, kept a register of the 1898, P. L. 1898, p. 237) “every public officer voters, and checked the names written there- upon whom any duty is imposed by this act in as the voters deposited their ballots, and, who willfully or negligently violates his said after the canvass of the votes, the registers duty, or who neglects or willfully omits to so checked were filed with the clerk of the perform the same, shall be deemed guilty of county of Atlantic to be there preserved by a misdemeanor.” If such violation of the him for a period of five years. The indict- law by the clerk is an indictable offense, ment then charges that thereafter the defend then, under section 2 of the supplement to ant "unlawfully, willfully, and with evil in- the act regulating elections (P. L. 1903, p. tent, and without warrant in the law, did 224), which reads, “Whoever at any election carry away, remove, and withdraw said reg. in this state shall in any way counsel, proisters from and out of the possession of the cure, aid, advise, assist or abet any official said county clerk.” The argument for the or person in any act which is contrary to the defendant is that the taking, carrying away, provisions of this act or to the act to which and withdrawal of the registers unlawfully this is a supplement, shall be guilty of a misand with evil intent is not made a crime by demeanor," this defendant would be guilty the statute, and therefore the indictment equally with the clerk if he counseled, prosets out no punishable offense.

cured, aided, etc., that official in any act Section 67 of the act concerning elections contrary to the provisions of the statute. (P. L. 1898, p. 271) requires the registry list That the indictment charges the defendant to be deposited with the county clerk after with doing the act as principal rather than each election, and section 1 of a supplement as aiding and abetting the county clerk is

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

81 A.-42

of no importance, because all who aid or 3. STATUTES (8 64*)—-EFFECT OF PARTIAL INparticipate in the commission of a misde VALIDITY.

Where an object of the act is fully expressmeanor are principals, and one indicted as a ed in the title, an object, unexpressed in the principal may be convicted as such, where title, if wholly distinct and separable from the the testimony limits his participation to aid expressed object, may be excised from the body

of the act. ing and abetting State v. Wilson, 79 N. J. Law, 241, 75 Atl. 776. It does not appear Cent. Dig. $ 195; Dec. Dig. § 64.*]

[Ed. Note.-For other cases, see Statutes, to us that it is so manifest that no judgment

4. EMINENT DOMAIN ($ 234*)-PROCEEDINGS can be rendered on this indictment that it

TO TAKE PROPERTY-AWARD OF COMMISought to be quashed, and we prefer to follow SIONERS. the rule laid down in Proctor v. State, 55

The award made by the commissioners, N. J. Law, 472, 26 Atl. 804, that the discre without specifically setting out what portion of tion to quash an indictment on motion will of the lands, and what portion represents the not be exercised unless upon the clearest damages sustained by the taking thereof, was and plainest ground, but the defendant will in compliance with the settled law of this 'state. be left to a demurrer, motion in arrest of main, Cent. Dig. 88 592-603; Dec. Dig. § 234.*]

[Ed. Note.-For other cases, see Eminent Dojudgment, or writ of error. The motion to quash will be denied, and

Application by Benjamin F. Hutches, Jr., the indictment retained in this court for and others for writ of certiorari, to review trial.

an award of commissioners, under the conWhen this motion was argued, an appli- demnation act of 1902, to the Borough of

Hohokus. Proceedings by the commissioners cation was also made for a special writ of

affirmed. certiorari to bring up some of the proceed

Argued June term, 1911, before GARRIings relating to the finding of the indictment,

SON, TRENCHARD, and KALISCH, JJ. if the motion to quash was refused, in order that the defendant might have so much of

James T. Ackerman, for plaintiffs. J. W. the proceedings as related to the finding of De Yoe, for defendant. the indictment brought into this court that he may have the opportunity to avail himself

KALISCH, J. A petition was filed by the of all of the defenses he would be entitled borough of Hohokus to condemn certain to if the indictment remained in the oyer lands described in said petition for park purand terminer.

poses, for the use of its inhabitants, under We think that the defendant is entitled an act entitled "An act to provide for the to a writ sufficiently broad to accomplish this purchase, construction, and maintenance of purpose, the scope of which will be fixed public parks by the cities and other municiwhen the writ is submitted for allowance. palities in this state.” P. L. 1902, p. 574.

The fifth section of this act was amended by an act, approved May 17, 1906 (P. L. 1906, p.

553), entitled "An act to amend an act en(82 N. J. L. 140)

titled 'An act to provide for the purchase, HUTCHES et al. v. BOROUGH OF HOHO-construction and maintenance of public parks KUS.

by cities and other municipalities in this (Supreme Court of New Jersey. Nov. 21, 1911.) Tands purchased under this act may be paid

'” "The (Syllabus by the Court.)

for out of the proceeds of said bonds, and 1. EMINENT DOMAIN (§ 9*)-NATURE OF Pow. in case of condemnation, the mode of proER-AUTHORITY OF BOROUGH.

cedure shall be that provided in an act enThe borough of Hohokus, under the act of titled 'An act to regulate the ascertainment

, ed in the class of municipalities mentioned in and payment of compensation for property said act empowered to purchase lands for pub- condemned or taken for public use (Revision lic use, is, by virtue of such power to purchase, of 1900), approved March twentieth, further authorized to condemn lands for such thousand nine hundred.”

one public use, by force of the act of 1903, p. 393. [Ed. Note.-For other cases, see Eminent

[2] The plaintiffs in certiorari impugn the Domain, Cent. Dig. $§ 27-34; Dec. Dig. $ 9.*j constitutionality of this amendment, contend

ing that it is in contravention of that part of 2. STATUTES (8 51*)-ENACTMENT-FORM OF STATUTE.

paragraph 4, § 7, art. 4, of the state ConstiThe act of 1906, p. 553, amending the fifth tution, which declares: “No act shall be passsection of the act of 1902, p. 574, is not in ed which shall provide that any existing law, contravention of that part of paragraph 4, § 7, or any part thereof, shall be made or deemed art. 4, of the state Constitution, which declares, "No act shall be passed which shall provide a part of the act, or which shall enact that that any existing law, or any part thereof, shall any existing law, or any part thereof, shall be applicable by inserting it in such act," since be applicable by inserting it in such act.” it merely provides for a method of procedure The act of 1906 does not come within the by which the act, which is complete in itself, may be carried into effect.

letter or spirit of the constitutional inhibi[Ed. Note. For other cases, see Statutes, Dec. tion here invoked. It simply provides for a Dig. $ 51.*]

method of procedure by which the act may

N. J.)

PEER V. BLOXHAM

659

be carried into effect. This act is strictly in /certiorari against the validity of the proharmony with previous legislation of the ceedings is that the act of 1900 (P. L. p. 79), same import, which has been repeatedly up- which provides for condemnation of lands, held by the courts of this state, and declar- does not provide for an appeal from the ed by them not to be within the constitution award of the commissioners, and is therefore al interdiction invoked in this case. The ex- in violation of that clause of the federal Conplicit and unequivocal pronouncements of stitution which declares that "no state shall this court and of the Court of Errors and deprive any person of life, liberty or propAppeals upon this topic do not leave this erty without due process of law.” This obclass of legislation open to any further prac-jection is wholly without substance. The act tical controversy or discussion. Campbell v. of 1900 was amended by an act of 1909 (P. Board of Pharmacy, 45 N. J. Law, 241; De L. 1909, p. 225), whereby the express right Camp v. Hibernia R. R. Co., 47 N. J. Law, of appeal is conferred upon any petitioner or 49; Christie v. Bayonne, 48 N. J. Law, 409, owner of any land or property taken for pub5 Atl. 805; In re Haynes, 54 N. J. Law, 24, lic use from the report of the commissioners 22 Atl. 923; Kennedy v. Belmar, 61 N. J. to the circuit court. Law, 23, 38 Atl. 756.

[4] The final objection is aimed against [3] The plaintiffs in certiorari further con- the award of the commissioners, because they tend that the act is unconstitutional, because have not set out specifically what portion of it is in violation of paragraph 4, § 7, and the sum awarded represents the appraised article 4, of the Constitution, which declares, value of the lands, and what portion repre"Every law shall embrace but one object and sents the damages sustained by the taking that shall be expressed in the title," in that thereof. This has been held not to be esthe title to the act of 1902 (P. L. 1902, p. sential. The award of the commissioners 574) reads, "An act to provide for the pur- was in compliance with the settled law of chase, construction and maintenance of pub- this state. Penn R. R. Co. v. National Dock lic parks by cities and other municipalities Co., 57 N. J. Law, 86, 30 Atl. 183; Bright v. in this state"; whereas, in the body of the Platt, 32 N. J. Eq. 362; Zimmerman v. Hudact, the right of condemnation is added to son & Nav. R. Co., 76 N. J. Law, 251, 71 Atl. the object stated in the title. It is obvious | 127. that the body of the act includes an object The proceedings are affirmed, with costs. not expressed in the title. But this does not vitiate the entire act. That part of the act

(82 N. J. L. 288) providing for condemnation is wholly distinct

PEER V. BLOXHAM et al. and separable from the right to purchase, and therefore leaves the right to purchase (Supreme Court of New Jersey. Nov. 20, 1911.) uninfected by its presence. The provision 1. AFFIDAVITS (8 18*)-EVIDENCE TO SUPPORT for condemnation may be excised without im

MOTIONS.

Affidavits on which a rule to show cause pairing the validity of the act. Rader v.

was founded cannot be used, after the rule is Township of Union, 39 N. J. Law, 509; Fa- made, to support a motion not of course, or be gan v. Payne, 75 N. J. Law, 854, 59 Atl. 568. read on hearing of a rule to show cause depend[1] That the validity of the condemnation ing on extrinsic facts; proof by depositions tak

en on notice to interested parties being necesproceeding cannot be upheld solely by virtue sary after the granting of the rule to show of the act of 1902 is conceded by the defend

Practice Act (P. L. 1903, p. 537), $8 ant, and has judicial support. Griffith v.

196, 197, provided that upon four days notice,

both parties may take affidavits or permitting Trenton, 76 N. J. Law, 23, 69 Atl. 29. But the opposing party to give separate notice for it is insisted by counsel for defendant that, taking depositions and providing for the examiby force of a supplement to the act entitled nation and cross-examination of the witnesses "An act relating to boroughs (Revision of and the taking of stenographic testimony. 1897)," P. L. 1903, p. 393, which provides: “1. Cent. Dig. ss 69-78; Dec. Dig. § 18.*]

[Ed. Note. For other cases, see Affidavits, In all cases in which authority has been or 2. AFFIDAVITS ($ 18*)—USE AS EVIDENCE-Ex may hereafter 'be given to boroughs to ac

PARTE AFFIDAVITS. quire lands for any public work, improve The practice of taking ex parte affidavits ment, or use by purchase, it shall be lawful to be used on argument of a motion is peculiar for such borough to condemn and take such

to the Chancery Court. lands in the manner and by proceedings pro- Cent. Dig. SS 69-78; Dec. Dig. '$ 18.*]

[Ed. Note. For other cases, see Affidavits, vided by law”-and since, by the act of 1902, 3. MOTIONS ($ 26*)—AFFIDAVITS-FILING. boroughs .were empowered to purchase lands

The affidavits on which a rule to show for public parks, etc., hence, by the act of cause is made must be filed as a basis for the 1903, the right to condemn lands was con- rule upon entering it. ferred on the defendant. This contention is [Ed. Note. For other cases, see Motions, well founded, and is supported by the deci- | Cent. Dig. 26; Dec. Dig. $ 26.*] sions of our courts. Phil. Safe Dep. & Ins. Action by Augustus L. Peer against Frank Co. v. Borough of Merchantville, 75 N. J. E. Bloxham and others. On rule to show Law, 452, 68 Atl. 170.

cause why the proceeds of execution sale Another objection urged by the plaintiffs in I should not be paid to plaintiff in part satis

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

faction of his judgment. Motion to make Nothing of this kind was done in the rule absolute denied, and rule extended as present case, plaintiff relying on his origistated.

nal moving affidavit for his proof. The moArgued November term, 1911, before GAR- tion to make the rule absolute will be deRISON, PARKER, and BERGEN, JJ. nied, but the rule may be extended until Joshua R. Salmon, for the rule.

December 15th next, to the end that plaintiff

may support it by depositions, and such PARKER, J. The meritorious question documentary evidence as is required pursuinvolved in this application relates to the ant to the practice above indicated. respective priorities of execution creditors as against a fund of money in court, realized by sale under one or more of the executions.

(71 N. J. E. 587) But as a matter of practice we cannot ex

ALBERT v. HAEBERLY et al. amine into or decide this question for the Court of Chancery of New Jersey. May 28,

1906.) reason that no evidence appears to have been taken under the rule to show cause

(Syllabus by the Court.) from which the rights of the respective exe- 1. GIFTS (8 47*)-INTER VIVOS--VALIDITYcution creditors to the fund or their priori BURDEN OF PROOF. ties can be determined. The plaintiff

Where an absolute gift, without reserva

tion of power to reroke, is made by a dependent claiming the prior right to the fund, relies member of the family to the dominant member, entirely on the affidavit upon which the without any valuable consideration proceeding rule to show cause was allowed, and no to the donor, the burden of proof is laid upon depositions have been taken thereunder in the donee to show that the donor had the benesupport of the rule, although express provi-plaining the effect of the challenged transac

exsion was made therefor.

tion. [1] The present application is typical of Ed. Note.-For other cases, see Gifts, Cent. numbers of similar ones that are constantly Dig. $ 85; Dec. Dig. $ 17.*] presented, and the frequency of such appli- 2. GIFTS (8 49*)-INTER Vivos_VALIDITY

SUFFICIENCY OF EVIDENCE. cations justifies a reiteration of the well

Where the lawyer who drew the transfer established rule that affidavits on which a of property from the dependent member of the rule to show cause is founded lose their family, and conducted the business incident to efficacy as proof as soon as such rule to its execution, had for years previously been emshow cause is made, and that, after this, who was the donee), had received his instruc

ployed as counsel for the dominant member ex parte affidavits, whether made before or tions for preparing the transfer in the presence after the granting of the rule, are not com- of the husband of the donee, and in the matter

of the transfer is not shown to have acted inpetent to prove the facts necessary to sup- dependently for the protection and advantage of port a motion not of course, or to be read the donor, the burden of proof cast upon the on the hearing of a rule to show cause, de- donee is not successfully carried. pending on facts extrinsic to the record. [Ed. Note. For other cases, see Gifts, Cent. Such facts can be brought before the court Dig. $ 95; Dec. Dig. $ 19.*] only by depositions taken on notice. Bald. 3. FORMER DECISION CONTROLLING. win v. Flagg, 43 N. J. Law, 495, citing Gal- cision of the Court of Errors and Appeals in

This case held to be controlled by the debraith v. Cooper, 24 N. J. Law, 219; State the case of Albert v. Haeberly, 68 N. J. Eq. V. Gardner, 34 N. J. Law, 327, 329.

664, 61 Atl. 380, 111 Am. St. Rep. 652. [2] The practice of taking affidavits ex parte, to be used on the argument of a mo- Emily B. R. Haeberly and others.

Bill in equity by Amelia Albert against tion, is peculiar to the Court of Chancery.

Final Baldwin V. Flagg, supra.

A later case is hearing on bill, answer, and proofs. Decree Klein v. Adams Express Co., 61 N. J. Law. for complainant. Affirmed (74 N. J. Eq. 451, 530, 40 Atl. 415. [3] The affidavits on which 70 Atl. 1100). a rule to show cause is made must be filed Bourgeois & Sooy, for complainant. Wilas a basis for that rule upon entering the liam I. Garrison, for defendants. same. Galbraith v. Cooper, supra. Upon the granting of the rule and in support of GREY, V. C. (orally). I do not care to it, the moving party must repeat his proof hear from complainant's counsel, because I in the form of depositions taken on notice aw convinced that this case ought to be setto all parties interested. Four days' no-tled in the way I am about to determine it. tice is required; and on such notice both [3] I have listened with interest to the desides may take depositions, or the opposing fendants' counsel to hear any suggestion why party may give a separate notice. Practice this cause is not substantially controlled by Act of 1903 (P. L., p. 537) $$ 196, 197. The the decision of the Court of Errors and Apwitnesses are to be examined and cross-peals in the case of Albert v. Haeberly, reexamined in regular course, and the testi- ported in 68 N. J. Eq. 664, 61 Atl. 380, 111 mony may now be taken stenographically in Am. St. Rep. 652. The circumstances in this cases to which the practice act is applicable. (ase differ very slightly from those which Id. $ 197,

were before that court in that judgment

N.J.)

ALBERT V. HAEBERLY

661

The present matter is the challenge by the and her stepmother, Mrs. Haeberly, who is complainant of the validity of a release in the principal defendant in this suit. The writing, made by her on October 16, 1902, complainant sought to set aside a conveyance to Mr. Charles Wells, an attorney at law of of her share of her father's real estate, the state of Pennsylvania, of what was call- which Mrs. Haeberly, while Amelia was a ed a trust fund in his hands, with a direc- member of her family, in December, 1902, tion to deliver the corpus of that fund to had induced her to make herself (Mrs. Haebthe defendant Mrs. Haeberly.

erly), without any independent, uninfluenced The circumstances under which this paper advice on the subject, by a deed of gift which was made are as follows: William Robin-contained no power of revocation. The son was the father of Lena and Amelia Rob- Court of Errors and Appeals held that the inson by a wife who died. He then married circumstances proven showed that Amelia, the defendant (now Mrs. Haeberly), who though of age, was one of the family of bore him one child, named Edna. William which Mrs. Haeberly was the head and domiRobinson died intestate, leaving at his death nant member; that Amelia lived in an athis three children-Amelia Robinson, the mosphere of trust and confidence in Mrs. complainant in this suit, Lena Robinson, her Haeberly; that it was an inequitable adsister of the whole blood, and Edna Robin- vantage taken of Amelia to accept from her son, her sister of the half blood, an infant an irrevocable conveyance of her lands, givabout two years old. Edna Robinson died en without competent and independent adabout two years after the death of her fa- vice, and without valuable consideration ther. There was litigation in the state of passing to her. On these grounds the Court Pennsylvania between the representatives of of. Errors and Appeals declared Amelia's the estate of William Robinson and his conveyance of her lands made in December, , brothers, Charles and Augustus, touching the 1902, to Mrs. Haeberly, to be void. In the settlement of a brewery property, which had case at bar Amelia seeks to set aside the been held in partnership between them, transfer of her interest in the principal of which resulted in the final establishment of her sister Edna's share of the lands, which the right of William to one-third. The prop- Amelia made to Mrs. Haeberly on October erty consisted of both real and personal es- 16, 1902. Amelia had come of age in Autate, and was of such a character that there gust, 1902. was some uncertainty as to what part was As above stated, it is affirmatively proven realty and what personalty. nder the law by both sides that on October 16, 1902, she of Pennsylvania, as it has been proven here, was a member of Mrs. Haeberly's household. the real estate part of William Robinson's es- At that time Amelia was living, as she had tate descended on his death intestate to his for more than ten years, in entire harmony children, one of whom was his daughter Ed- with her stepmother, accepting and obeying na. Edna's portion, upon her death, an in- orders from Mrs. Haeberly as the head of fant, and, of course, intestate, under the law the family. All the evidence tends to prove of the state of Pennsylvania, as to the real that Mrs. Haeberly was a positive woman, estate, passed to her mother for life, and to who understood and appreciated the fact her half-sisters Lena and Amelia in fee. that wealth was a means of power. She The controversy in this case arises touching had conducted the lawsuit against her first the transfer, or claimed transfer, on October husband's brothers, Charles and Augustus 16, 1902, by Lena and Amelia, to their step- Robinson, for several years, and had finally mother, the defendant Mrs. Haeberly, of won it. While her stepdaughters were untheir reversion in the fund arising from the der age she received $1,000 a year from the sale of the real estate to the extent of Edna's guardian of each of them for their mainteshare, the fee in which came to them on Ednance and education. Amelia says she was na's death. There has been, as has been for years kept in ignorance of the fact that stated, a considerable amount of flat contra- she had an independent fortune. In the setdiction in the testimony in this case. This tlement of William Robinson's estate, his is true, however, only of minor matters, for widow (who had now become Mrs. Haeberly) as to the essentials which I deem to be con- secured for herself, as against her steptrolling the decision of the cause there is no daughters, every element of value to which dispute whatever. In matters of family con- her status as widow entitled her. Her pertention it is not at all unusual to have mem- sonal appearance and bearing when she was bers of the family of creditable appearance giving her testimony accord with all the give testimony against each other which is evidence which indicates that in the family directly contradictory. This is to a certain she was easily “monarch of all she surveyextent true in this case, but, touching the ed.A claim that she specially considered important phases settled by the Court of her stepdaughters was based on her assent Errors and Appeals, the evidence presented to the correction of a clerical mistake in the by both sides is in harmony.

settlement of the estate, which was only disIn the Court of Errors and Appeals case covered after it had passed unnoticed through above cited the contention was between the several courts. This correction was a matter complainant, Mrs. Amelia Robinson Albert, / of the simplest honesty, about equivalent to

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