Opposition Brief — Luckenbach Terminals, Inc. v. Township of North Bergen

IN THE

Supreme Court of the United States

OCTOBER TERM, 1939.

wo. 115...

Luckensacnh Termrnas, Ixec., a corporation of the

State of New Jersey,

Appellant,

v.

Townsurp or Nortu Bercen 1n tHe County or Hupson,

a municipal corporation of the State of New Jersey,

New Jersey Junction Rarroap Company, a corpora-

tion of New Jersey, Tue New York Cenrrat Rar-

roap Company, a corporation, County or Hupson, a

municipal corporation of the State of New Jersey,

Appellees.

AppreaL From New Jersey Court or Errors anp APPEALS.

BRIEF IN OPPOSITION TO THE MOTION MADE BY

THE APPELLEE TOWNSHIP OF NORTH BERGEN

TO DISMISS THE APPEAL OR TO AFFIRM THE

DECREE.

/ CLARENCE KELSEY,

Counsel for Appellant.

The Court Press, 150 Bay St., Jersey City, N. J.

re ET?

seas

INDEX.

PAGE

I—Status Of Case.......cseceeecccerecvcseveees 1

[l--Unconstitutionality of Apportionment Act..... 3

I1l—The Federal Question Was Timely and Prop-

erly Raised ......cceeeeeeeeeeerereeeeeeneees 4

1V—Consideration of Brief of Appellee..........- 17

V—Allege Other Tenable Grounds Did Not Exist. 23

Tap_e or Cases CITep:

Abendroth v. N. ¥. Elev. R. Co., 54 N. Y. Supr. Ct. 4179

Ancient Egyptian Arabic Order of the Mystic Shrine

v. Michaux, 279 U. S. 737.2... 6. eee eee eens 3+

Bogert v. Elizabeth, 27 N. J. Eq. 568........--++++- 8, 26

Broad River Power Co. v. South Carolina, 281 U. 58.

OT cd cece eee eb seavdebdeuaavenbnuns scebwas 34

Chicago B. & Q. Ry. v. Chicago, 166 U. 8. 226........ 34

Chicago, Milwaukee and St. Paul Ry. Co. v. Min-

mesota, 1384 U. 8. 418........ccccccccccceeess 3, 16

Clark Thread Co. v. Kearny, 55 N. J. L. 50........ 3

Coe v. Armour Fertilizer Works, 237 U. 8S. 413..... 3, 15

Commercial Co. v. Southern Surety Co., 100 N. J.

Eq. 92, affirmed 101 N. J. Eq. 738........ 8, 24, 25, 26

Davidson v. New Orleans, 96 U. S. 105...........-. 3, 16

Enterprise Irr. Dist. vy. Farmers’ Mut. Canal Co., 243

TF PE, cc cunccnceeesdsacouscevevevedtebedss 34

Farncomb v. Denver, 252 U. S. 7....-.e cece eeecees 31

Fitzgerald v. Faunce, 46 N. J. Li. 586.... 6.66 e eee 27

Gibes v. Zimmerman, 290 U.S. 326........60 eee eee i]

Groel v. Newark, 78 N. J. Li. 142..... 0c ec eeeeeeees 3

eee ee

PAGE

Kirkpatrick v. New Brunswick, 40 N. J. Eq. 46, af-

BOOS GE He De HG, BW sc cciesccccccccvvcvcccces 8, 26

Lawrence vy. State Tax Commission of Mississippi,

Bee We Ee Eee nd vewrcdcosccncses secsbisebes 34

OOS GS, Gee Ee We Te Gv cocccvcceccesecesavans 34

Massie v. Asbestos Brake Co., 95 N. J. Eq. 298....... 35

Maawell v. Goetschins, 40 N. J. L. 391.............. i)

McGregor v. Hogan, 263 U. 8. 234...........-000. 34

Meredith v. Perth Amboy, 63 N. J. L. 520........... 23

Mitsch v. Riverside, 86 N. J. L. 603..............3, 25

Moran v. Horsky, 178 U. 8. 205........cccccccccess 33

Paterson v. East Jersey Water Co., 74 N. J. Eq. 49,

SED OO Wie ale Gs Be nse sccccccccccecscoces 35

People ex rel. Bryant v. Zimmerman, 278 U.S. 63... 5

Pierce Oil Co. v. Texas, 212 U. S. 86.............. 33

Pittsburgh v. Board of Public Works, 172 U. S. 32.. 31

Post v. Anderson, 111 N. J. Li. BOB... ccc ec cccee 20

Postal Telegraph Cable Co. v. Newport, Ky., 247

ym Mb che kuuinédundekie cesedeedecdsdeess 34

Preston v. Chicago, 226 U. S. 447...........000000- 33

Reeves ¥. Jones, 14 HK. J. La BBB... ccccccccccess 5

Security Trust Co. v. Lexington, 203 U. S. 323,

3, 4, 22, 31, 34

eee We Ses Ee We Mb ik bcc cccccccevcdesusens 33

Smith v. Cohen, 123 N. J. Bq. 419.........02006- 8, 25, 26

Southern Ry. Co. v. Virginia, 290 U. S. 190........ 3, 16

ee ey Ps ee Bs ie bs Oe pcre cccccccevcioeh 7, 20

Stevens v. Enders, 13 N. J. Li. 271...... ccc ccceces 4

Gee G Pas FE Gee Ee Mabe occccscoccccsccvetet 3, 14

Utley v. St. Petersburgh, 292 U. 8. 106.............. 31

Van Solinger v. Harrison, 39 N. J. L. 51... eee eee

iii

PAGE

Walsh v. Newark, 78 N. J. Li. VOB... cece eee cece ees 23

Ward v. Board of County Commissioners of Love

County, Okla., 253 U. 8. 17. cece cece cece ee eees 34

Welles v. Schaffer, 98 N. J. Bq. 81... 6. cece eens 8, 19, 25

Weyerhaueser v. Minnesota, 176 U. 8. 550.......++. 31

Orner Avutnorities Crrep:

“Act for Quieting Title” of March 2, 1870........-.. 25

Act of December 23, 1914, 38 Stat. 790, of the Judicial

ae Cc cccoedeccccvoserescteceerceeosesesseve 33

Apportionment Act of DL icccadcceucuces ccs

ie Ce ipacetedenedecnedtecchéasessreruned 6, 26, 30

i SOP errr rre mre 6 fF SS

ee Pe cou naddonteseseteéetdtcovsaseeienues 31

eek: De ccoddbbccceutanecveevesucooeseotesss 7,17, 33

General Tax Act of 1903, ch. 208, Sec. 31............. 6, 30

—_ » oS errr rrr ry 6, 22

N. J. Compiled Statutes:

Vol. 1, p. 407, See. 14, as amended by P. L. 1925,

Po 77 cccccccccccccccccvccecccesvesccsesseess 23

Vol. 4, p. 5309, Bec. 1.0... ccccccccccccccccscves 25

P. L. 1908, ch. 30B, p. O4. 0... cccccccccccccceeeeees 6

P. L. 1918, ch. 236, See. 501, p. 862.......-. 62. ee eeee 22

P. L. 1919, ch. 121, pp. 285 to 289, as amended by P. L.

1933, ch. 335, p. 879.....6-ceeeeeeveeeees 3, 5, 9, 10, 11

Rules of the N. J. Court of Errors and Appeals, Rule 9 11

U. S. Constitution, 14th Amendment, Sec. 1......3,5,9, 22

12 Corpus Juris, pp. 1228 and 1229................-3,14

Ds Ot... . cap cegabeebnewaseceedoccerosodeeers 14

IN THE

Supreme Court of the United States

OCTOBER TERM, 1939.

Luckensacn Tenmixars, Ixc., a corporation of the

State of New Jersey,

Appellant,

v.

Towxsurp or Nortn Bercen 1x THe County OF Hupson,

a municipal corporation of the State of New Jersey,

New Jersey Junction Rarroap Company, a corpora-

tion of New Jersey, Tue New York Centra Rat-

noap Company, a corporation, County or Hupson, a

municipal corporation of the State of New Jersey,

Appellees.

AprraL rrom New Jersey Court or Errors anp APPEALS.

Lp

—

BRIEF IN OPPOSITION TO THE MOTION MADE BY

THE APPELLEE TOWNSHIP OF NORTH BERGEN

TO DISMISS THE APPEAL OR TO AFFIRM THE

DECREE.

——_—_—_

1.

Status of Case.

The application to the Supreme Court of the United

States for allowance of an appeal in this case was made

on April 11, 1940, to the chief justice of New Jersey, and

”

-

he refused because the remittitur had before that date

gone down from the highest court in the state to the tria}

court and he said he was without power. Application next

was made, on April 13, 1940, to Mr. Justice Roberts,

who, after he had conferred with one of the other Justices

of the Supreme Couft, declined to allow the appeal. On

April 19, 1940, an application was made to Mr. Justice

Frankfurter who allowed the appeal.

The appeal is from a final deeree rendered in the

New Jersey court of errors and appeals in the last resort

in all causes on January 25, 1940, and from each and

every part thereof, but the record and proceedings having

the same day been remitted to the court of chancery of

New Jersey, the clerk of that court was ordered to pre-

pare, certify and transmit the record to the Supreme Court

of the United States within forty days of April 19, 1940.

The original papers were, on April 19, 1940, served

upon Edward L. Whelan, the clerk of the court of chan-

cery of New Jersey, and left with him, and copies were

served upon the attorneys of the appellees in the state

courts, including copies of the statement directing atten-

tion to the provisions of paragraph 3 of Rule 12 of the

Supreme Court of the United States, all by April 24, 1940,

On May 3, 1940, a praccipe for the transcript of the

record was served upon the attorneys for the appellees,

and the original was filed on that day with the clerk of

the court of chancery of New Jersey.

On May 7, 1940, a statement against the jurisdiction

of this Court, including a motion to dismiss or affirm was

served upon me, by the appellee Township, and I am

to file this brief in opposition to the motion thus made

(Rule 7, par. 3).

3

Il.

Unconstitutionality of Apportionment Act.

Manifestly, the statute of New Jersey, which we have

called the Apportionment Act (Laws of New Jersey of

1919, eh. 121, Pp. 985 to 289, as amended by ch. 335 of

the Laws of New Jersey for the year 1933, p. 879) is

unconstitutional, because of a clause in section 6 thereof,

“that apportionments may be made without notice to the

interested parties.” (Italics supplied.) (See pp. 1 and

2 of Statement as to Jurisdiction) and without notice

given, either before or after the apportionment has been

made.

Security Trust Co. v. Lexington, 203 U. 8. 323, 333;

Coe v. Armour Fertilizer Works, 937 U. S. 413; Southern

Ry. Co. v. Virginia, 290 U. 8. 190; Chicago, Milwaukee

and St. Paul Ry. Co. Vv. Minnesota, 134 U. 8S. 418, 457,

458; Davidson v. New Orleans, 96 U. S. 105. In Stuart

y. Palmer, 74 N. Y. 183, 186, 188, held “The law requires

no notice, and a provision for notice cannot be implied.”

12 Corp. Jur. 1228 and 1229. And some of the cases in

New Jersey, holding the same rule, are: Mitsch v. River-

side, 86 N. J. L. 603; Clark Thread Co. v. Kearny, 55

N. J. L. 50; Groel v. Newark, 78 N. J. L. 142; Van Solinger

y. Harrison, 39 N. J. L. 51.

It is unconstitutional because repugnant to See. 1 of

the 14th Amendment to the Constitution of the United

States, which reads in part as follows:

“Nor shall any state deprive any person of life,

liberty or property without due process of law.”

The bill of complaint of the appellant filed in the court

of chancery of New Jersey also attacked the tax sale of

the lands of the appellant based on said apportionment,

ee LL LEILA

4

and prayed that the apportionment and tax sale and

certificate of tax sale be set aside and for an injunction

restraining the Township from enforcing the tax sale or

apportionment, and that they be declared fraudulent,

ultra vires, illegal and void and that the title of the com.

plainant be quieted against the lien of the certificate of

tax sale asserted by the Township (R. 16 to 35).

The Federal Question Was Timely and Properly

Raised.

On March 11, 1937, the appellant made application to

the New Jersey supreme court, on affidavits and exhibits,

for a writ of certiorari to review the apportionment of

taxes of July 5, 1933, and the tax sale of September 12,

1935, founded thereon, and was granted a rule to show

cause. The apportionment could not be set aside while

the tax sale stood, so the tax sale first had to be set aside

or the apportionment and tax sale be set aside together.

The action in the state common-law court was brought

to set aside both the tax sale and apportionment. In

accordance with the state statute of limitation, this was

done within eighteen months after the tax sale and so

within time according to state law:

“If the application for the writ and rule to show

cause were made within the eighteen months limita-

tion, the statute is considered as fulfilled. When the

rule comes to argument, it always relates back to the

time it was granted.”

Stevens v. Enders, 13 N. J. W. 271.

The question is whether any notice is provided for by

the statute (Security Trust Co. v. Lexington, 203 U. 8.

323, 333).

ee

The grounds advanced for granting the certiorari,

were that they were “ynconstitutional”, in that the appor-

tionment was contrary to See. 1 of Article 14 of the Con-

stitution of the United States, which provides, inter alia,

“Nor shall any state deprive any person of life, liberty

or property without due process of law”, and also uncon-

stitutional by the State Constitution, and that the appli-

eation was founded on about twelve other good and valid

grounds.

The federal ground of “yneonstitutionality” could not

very well be set forth in the affidavits or exhibits used

in making the application for the writ and therefore it

appears in the brief filed by the applicant with that court.

This same course was adopted in People ex rel. Bryant

y. Zimmerman, 278 U. S. 63, 68, 69.

SuBMITYED TO THE Srate Supreme Covurt.

Under the first point, on pages 5 to 7 of the brief, the

following appears: “The statute of 1919 providing for

apportionments and reapportionments of taxes is uncon-

stitutional. * * * Chapter 121 of the Laws of New Jersey

for the year 1919 * * * is unconstitutional. Section 6 of

this statute provides in part:

“Such apportionment may be made without notice

to the interested parties, but in such case any inter-

ested party who did not waive notice may apply for

a reapportionment on notice; and Section 1 of Ar-

ticle 14 of the Constitution of the United States pro-

vides, inter alia, ‘Nor shall any state deprive any

person of life, liberty or property, without due pro-

,99

cess of law’.

In Reeves v. Jones, 74 N. J. L. 330, it was held that:

“No question of laches is involved upon the issuance

of a writ of certiorari at any time during the period

prescribed by the statute.”

ee

—_—$—.—

6

In deciding the application, the state supreme court

wholly disregarded the claims of the applicant that the

statute of 1919 was unconstitutional, and held that the

applicant was guilty of laches in making its application

(118 N. J. L. 348, 350) and said that “on July 5, 1933,

the taxes were apportioned on the basis of the new hold.

ings,” which would be impossible as the opinion shows

that such new holdings were not acquired until April,

1934, nearly nine months after the apportionment. We

say “impossible”, because the illegal Act of 1919 pro-

vides in its fourth section (p. 2 of Statement as to Juris-

diction) that:

“4. The apportionment shall be made according

to the value of the respective subdivisions at the time

the respective charges were levied or imposed, unless

the claim is justly chargeable only to a particular

part of said parcel,”

and the preceding Act for apportionment of taxes was

sec. 31 of the General Tax Act of 1903 (P. L. 1903, eh.

308, p. 394), which was repealed by the General Tax Act

of 1918, but provided, in said see. 31, “that taxes may be

apportioned among proper subdivisions of such parcel

* * * according to the values of the respective subdivi-

sions at the time the tax became due, * * * the tax on

each subdivision shall be a lien thereon in the same

manner as originally assessed.”

The opinion of the state supreme court is replete with

errors of fact as well as of law and was inapplicable.

It says that “the applicant obtained additional ripa land”,

which is not so, and retained a five-foot fringe of ripa

along the river, which is true, but it was not procured or

retained until nearly nine months after the apportion-

ment of July 5, 1933. The applicant got the deed convey-

ing the triangular tract of land, dated February 14, 1934,

which included the five-foot fringe of ripa (Ex. C, 5,

~~

7

R. 278 to 287) on March 8, 1934. The opinion further

says, that the state claimed title to the accretion. There

was no accretion for the state to claim title to and they

made no claim to any. Then the opinion goes on to treat

the lands as though the applicant, at the time of the

apportionment, had already made the changes, but, they

were, in fact, made about nine months after the appor-

tionment. We find that the applicant went to the railroad

companies in October, 1933, four months after the appor-

tionment, and made an entire new deal (R. 163, 164).

In fact, down to the time of the change in March, 1934,

the applicant knew nothing about an apportionment of

its lands having been made (R. 164) and did not learn the

result of the apportionment until February, 1937.

And the court finished its opinion by saying that “it

appears to us that, upon the showing made, the appor-

tionment was not unfair to applicant.” The opinion holds

that it was not until April, 1934, that applicant received

knowledge of the apportionment—nearly nine months

after the actual apportionment—by receiving amended tax

pills, but it did not seek a reapportionment provided by

Sec. 6 of the 1919 act, and see See. 9 of the Apportion-

ment Act of 1919 (Statement as to Jurisdiction, 2) which

requires a deposit of a sum sufficient to pay the estimate

apportionable to the sub-division in which the applicant is

interested. The application for a certiorari as to this

riparian plot was refused, and although the highest court

of the state held, as to the effect of refusing a writ of

certiorari, in State v. Wood, 23 N. J. L. 560, 561.

“that where the state supreme court refuses to grant

the writ the decision rests in the discretion of the

court and cannot, in any technical or appropriate

sense, be denominated final. There the court refused

to take cognizance of a matter in controversy, and

oN TE RO

a ee ee

8

they decided not to examine the questions of law

arising between the parties; they passed no definite

sentence and settled no right. The court further said

that ‘the matter in controversy cannot be said to be

res adjudicata; the decision of the court cannot be

pleaded, nor relied upon in any way, as a former

judgment and the question at issue may be again

agitated before the same or a coordinate tribunal.

* * * There is a wide and obvious distinction, which

no argument can render more clear, between the re-

fusal to entertain a cause, and the rendering of a

final judgment upon the matter at issue.”

A reference to the following cases, reported in New

Jersey, showed that a bill in chancery would lie in such

a case:

Bogert v. Elizabeth, 27 N. J. Eq. 568; Kirkpatrick vy.

New Brunswick, 40 N. J. Eq. 46 (affirmed 41 N. J. Eq.

347); Smith v. Cohen, 123 N. J. Eq. 419; Commercial

Co. v. Southern Surety Co., 100 N. J. Eq. 92 (affirmed

101 N. J. Eq. 738).

In Welles v. Schaffer, 98 N. J. Eq. 31, 33, Viee-Chan-

cellor Backus held that an attack on a certificate of tax

sale, if the certificate is voidable, must be made by cer-

tic ari; if it is void, by ejectment, bill to remove the

cloud or bill to quiet title.

Paragraph 31 of the bill of complaint filed in the court

of chancery, September 13, 1937 (R. 29) avers that said

act (of 1919) is unconstitutional for the following reasons,

among others; “It also provides that an apportionment

may be made without notice to the interested parties”.

And paragraph 32 of the bill avers that “no notice of said

apportionment was given to the complainant, or waived by

it, either before or after said apportionment was made, and

agentes neces

complainant had no knowledge of the results thereof until

the discovery on said February 25, 1937, of the said

certified copy of resolution, Exhibit G” (R. 29, 30).

The above allegation that “It also provides that an

apportionment may be made without notice to the inter-

ested parties”, referred to the “due process of law

clause” in the Federal Constitution. because the State

Constitution does not contain a clause like the “due

process of law clause” in the Federal Constitution (Aben-

droth v. N. ¥. Elev. R. Co., 54 N. Y. Supr. Ct. 417;

Marwell v. Goetschius, 40 N. J. L. 391), and page 30

of the typewritten brief filed with the trial court on

behalf of complainant is under the following heading:

“Said apportionment was made under the provi-

sions of Chapter 121 of the Laws of New Jersey

for the year 1919, entitled ‘An act for the appor-

tionment of assessments for taxes and other municipal

assessments, charges or liens’, approved April 11,

1919, as amended by chapter 335 of the Laws of

New Jersey for the year 1933; and said Acts are

unconstitutional; and said apportionment was made

without notice to the complainant ;” (See Gibes v.

Zimmerman, 290 U. S. 326, 328.)

And on page 29 of the brief filed with the trial court,

under said heading, appears the statement, “We also

contend said Apportionment Act, chapter 121 of the

laws of 1919, is unconstitutional because it provides,

in Section 6 thereof, that such apportionment can be

made without notice to the interested parties” and again

on page 30 of the brief, under said heading, appears

the averment that “Section 1 of Article 14 of the Con-

stitution of the United States provides, inter alia, ‘Nor

shall any State deprive any person of life, liberty or

,”

property, without due process of law’”.

10

No oral argument was allowed at the conclusion of

the hearing and the final argument was made by brief

only.

There was offered to the vice-chancellor, in the course

of the argument to dismiss the bill, made at the beginning

of the trial, the record of the ease in the supreme

court and the briefs filed in that case, and he received

them (R. 82); and the claim was made by the complain-

ant during the trial that the statute of 1919, constituting

the Apportionment Act, was unconstitutional, during

which argument the solicitor for the Township said,

“That argument was considered and the matter decided

adversely” (R. 161). He must have meant only that the

charge of unconstitutionality had been “considered by

the state supreme court and by that court decided ad-

versely”. The records of the state supreme court and

the briefs therein filed were not printed with the record

which went with the appeal from the court of chancery

to the court of errors and appeals.

In deciding the case, the vice-chancellor said (R. 70

to 74) that the bill of complaint alleged “unfair appor-

tionment, unconstitutionality of the Act, Ch. 121, P. L.

1919, under which the apportionment was made, and

fraud on the part of the municipality. * * * Complain-

ant’s failure to prove fraud or ‘corrupt design’ and its

laches in seeking relief compels a dismissal of the bill.

This being so, it is not necessary to pass upon the con-

stitutionality of the act;” and he dismissed the bill of

complaint (R. 74).

In their answers filed in the court of chancery, both

defendants, the Township and County, alleged that

“notice of such apportionment was given to the complain-

ant in April, 1934” (R. 48, par. 23; 56, par. 23; and 49,

par. 41).

The petition of appeal to the court of errors and ap-

11

peals specifies, as a ground of appeal, that the decree

of the court of chancery of New Jersey is erroneous in

that it adjudges that complainant's bill of complaint be

dismissed, whereas said bill avers, that “The statute

under which said apportionment was made is chapter 121

of the Laws of New Jersey for the year 1919 (P. L. 1919,

p. 285) entitled ‘An Act for the apportionment of assess-

ments for taxes and other municipal assessments, charges

or liens’, as amended by chapter 335 of the Laws of

New Jersey for the year 1933, and the defendants ad-

mitted at the trial that said apportionment was made

under said laws” (R. 29), and that the bill alleges that

said act of 1919 is unconstitutional for the following

among other reasons:

“(d) It is in derogation of Section 1 of Article 14

of the Constitution of the United States, which pro-

vides that no state shall deprive any person of life

liberty or property without due process of law, t. ¢.,

said Act provides for apportionment without notice

to the parties in interest being given either before or

after apportionment” (R. 8 and 9).

The instant case in the appellate court was not argued

orally but was submitted on brief. By Rule 9 of the

court of errors and appeals, adopted at the February

term, 1932, it is provided that all causes properly noticed

and listed will be submitted on brief unless counsel give

notice otherwise; except appeals or writs of error in all

manslaughter or murder cases which shall be argued

orally.

The brief on behalf of the appellant (at p. 4) said:

“J also claim that said statute of 1919, in providing

that an apportionment can be made without notice to

the interested parties, is repugnant to that part of

Section 1 of the 14th Amendment to the Constitution

12

of the United States which provides: ‘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

law’.”

Under the heading on page 38:

“The apportionment of the taxes against Plot 4 A,

Block 438 C, and the Tax Sale founded thereon, ere

unconstitutional, ultra vires, illegal and void for the

Following Reasons:

(A) Because the statute under which said appor-

tionment was made is unconstitutional.

Sub-division (A) reads:

“Said apportionment was made under the provi-

sions of Chapter 121 of the Laws of New Jersey for

the year 1919, entitled ‘An Act for the Apportion-

ment of assessment for taxes and other municipal

assessments, charges or liens’, approved April 11,

1919, as amended by Chapter 335 of the Laws of the

year 1933; and said laws are unconstitutional and

said apportionment was made without notice to the

appellant”.

The brief, further considering the constitutional ques-

tion, says (at p. 42):

“I also contend said Apportionment Act, Chapter 121

of the laws of 1919, is unconstitutional because it pro-

vides, in Section 6 thereof, that ‘such apportionment may

be made without notice to the interested parties’.”

“If the foregoing is the law it would appear that without

notice to or knowledge by an owner, his lands can be

subdivided for purposes of taxation, and that assessments

of taxes already levied against them can be apportioned

without his knowledge or consent in such way that one

13

subdivision will be re-assessed by the apportionment for

more than it should bear while the other subdivision is

thereby released from a greater part of the burden, and

that, no matter how long a time intervenes between the

apportionment and knowledge thereof gained by the

owner of a subdivision, and no matter to what extent he

has been wronged by the apportionment, in order to

obtain a reapportionment he must, by Section 9 of the

Apportionment Act, if the governing body of the muni-

cipality requires it, deposit with his application various

sums of money including sufficient to pay the estimated

amount of taxes apportionable to the subdivision in which

he is interested. As to how and by whom this estimated

amount is to be determined at the time the application for

a reapportionment is filed, the statute is silent; and why

an owner who has been wronged by an unfair apportion-

ment should be compelled to pay his taxes, sooner than he

otherwise would be required to, as a condition to obtain-

ing a just reapportionment, is not disclosed.”

“Section 1 of Article 14 of the Constitution of the

United States provides, inter alia, ‘Nor shall any State

deprive any person of life, liberty or property, without

due process of law.’”

“Section 12 of Section 7 of Article 4 of the Constitution

of New Jersey, as amended, provides that ‘Property

shall be assessed for taxes under general laws, and by

uniform rules, according to its true value’.”

“Section 31 of the General Tax Act of 1903 (P. L. 1903,

Chap. 208, p. 394), required a notice to be given all owners

of a parcel of land of a proposed apportionment of taxes

assessed against it.”

“Manifestly this statute of 1919 is upon its face uncon-

stitutional, and the attempted apportionment in the instant

case, based thereon, is illegal and should be set aside.

Our bill alleges, in paragraph 32 thereof, and the resolu-

——

14

tion (Exhibit C-8, pp. 309-310) passed on July 5, 1933 by

the Commissioners of North Bergen, and the testimony

of Mr. Mewhinney (p. 140) and of Mr. Stefferson (pp.

145 and 146), show that no notice of the proposed appor-

tionment was given to or waived by the appellant, and

that it was attempted and intended by said apportion-

ment to deprive the complainant of its property without

due process of law.”

“The act fails te provide for notice to the landowner,

and, indeed, it provides by section 6 thereof, that appor-

tionments may be made without notice to the parties in

interest.”

Corpus Juris has this to say about such an act (vol. 12,

pp. 1228 and 1229):

“Where boards or commissioners act in a judicial

or quasi-judicial capacity, notice is necessary to

render their order due process of law. The law

authorizing the proceedings must require notice or it

will be unconstitutional. It is not enough that a

person may by chance have notice, or that he may,

as a matter of favor or courtesy, have a hearing.

* * * Under this view the statute is not unconstitu-

tional unless it undertakes to dispense with notice.

Other cases hold that the statute itself must spe-

cifically require notice, or otherwise it authorizes

proceedings without notice, and is therefore uncon-

stitutional.”

Note 27 to the above quoted text cites the case of

Stuart v. Palmer, 74 N. Y. 183, which holds (at p. 186):

“The law requires no notice, and a provision for

notice can not be implied”.

and (at p. 188):

“T am of the opinion that the constitution sanctions

no law imposing such an assessment, without a

ay

15

notice to, and a hearing or an opportunity of a

hearing by the owners of the proper’; to be assessed.

It is not enough that the owners may by a chance

have notice, or that they may as a matter of favor

have a hearing. The law must require notice to

them and give them the right to a hearing and an

opportunity to be heard. It matters not, upon the

question of the constitutionality of such a law, that

the assessment has, in fact, been fairly apportioned.

The constitutional validity of law is to be tested, not

by what has been done under it but what may, by its

authority, be done. The legislature may prescribe

the kind of notice and the mode in which it shall be

given, but it cannot dispense with all notice.”

Another case cited in Corpus Juris is Coe v. Armour

Fertilizer Works, 237 U. S. 413, in which Mr. Justice

Pitney wrote the opinion of the court, and said (at pp.

422 and 423):

“Thus construed, and as applied in this case, we

think section 2677 is repugnant to the ‘due process

of law’ provision of the Fourteenth Amendment,

which requires at least a hearing, or an opportunity

to be heard, in order to warrant the taking of one’s

property to satisfy his alleged debt or obligation;

and in our opinion the other sections do not ade-

quately supply the defect.”

and (at p. 425):

“Thus in Security Trust Co. Vv. Lexington, 203

U. S. 323-333, the court, by Mr. Justice Peckham,

said with respect to an assessment for back taxes:

If the statute did not provide for a notice in

any form, it is not material that as a matter of

grace or favor notice may have been given of the

proposed asessment. It is not what notice, un-

16

called for by the statute, the taxpayer may have

received in a particular case that is material, but

the question is, whether any notice is provided for

by the statute.’”

In Southern Ry. Co. v. Virginia, 290 U. S. 190, it was

held that:

“An act giving the commonwealth the power, with-

out notice or hearing, to command a railway com-

pany to abolish a grade crossing and construct an

overhead is unconstitutional as repugnant to sec-

tion 1 of the Fourteenth Amendment” (Cites 134

U. S., 418 and 457-458).

The case of Chicago, Milwaukee and St. Paul Ry. Co.

v. Minnesota, 134 U. S. 418 (at pp. 457-458), the court,

in holding an act unconstitutional, said:

“It deprives the company of its right to a judicial

investigation by due process of law, under the form

and with the machinery provided by the wisdom of

successive ages for the investigation judicially of

the truth of a matter in controversy, and substitutes,

therefor, as an absolute finality, the action of a

railroad commission which, in view of the power

conceded to it, by the state court, cannot be re-

garded as clothed with judicial functions or possess-

ing the machinery of a court of justice”.

It was held in Davidson vy. New Orleans, 96 U. 8S. 105,

and in other cases which followed it, that:

“When a law provides a mode for confirmation or

contesting an assessment for taxation, with appro-

priate notice te the person charged, the assessment

cannot be said to deprive the owner of his property

without due process of law”,

17

and the defendants will argue here, in reply, that see-

tion 6 of the Apportionment Act provides that:

“In such case (an apportionment without notice)

any interested party who did not waive notice may

apply for a reapportionment on notice”,

and that the appellant did not make an application for

a reapportionment, and, therefore, cannot complain. But

it will be noticed that by section 9 of said Apportionment

Act it is further provided that:

“Any such governing body or authorized officer may

refuse to comply with any application for apportion-

ment or reapportionment, unless the written applica-

tion shall be accompanied by a map showing the

entire parcel and the sub-divisions desired, and shall

also be accompanied by the deposit of a sum sufficient

to cover the expense of the notice and advertisement

hereinbefore provided, and to pay the estimated

amount apportionable to the subdivision in which

the applicant is interested”.

IV.

Consideration of Brief of Appellee.

The motion to dismiss or affirm, made by the appellee,

does not clearly state the facts on which it is based, as

required by Rule 7, paragraph 1.

It also states facts not of record, i. e. depth of water,

ete.

The appellee says on this motion (See its brief, pp. 4

and 11) that a new suit was brought by it in the court

of chancery of New Jersey since the decision herein by

the appellate court, to foreclose the rights of the appel-

lant in the property in question, and other property,

18

and that on April 8, 1940, a motion was made in be-

half of the complainant in that suit to strike out the

answer filed by the appellant (here), and that the ap.

peal to the Supreme Court of the United States is mani-

festly taken for delay only.

The appellant says in answer that it decided back in

the month of last January to make application for an

appeal to the Supreme Court of the United States, and

made such intention known also to the solicitors of the

appellees on February 26, 1940, when the appellee moved

to make the decree of remittitur of the appellate court

the decree of the court of chancery, and the vice-chancellor

was then asked to grant a stay pending such appeal if

allowed.

But the foreclosure suit had already been commenced

by the filing of a bill on February 24, 1940, which sought

to foreclose not only the premises sold at the tax sale

on September 12, 1935, but the valuable new ripa as well

which has never been sold for taxes and which the soli-

citor of the appellee admitted having included in his bill

of complaint, averring that a detailed description of

the property sold by the collector of taxes included the

northerly two-fifths part of the riparian tract and the

five foot wide riparian fringe acquired from the state

nine months after the apportionment. And, added to the

description, the following appears: “Together with

such rights as the Luckenbach Terminals, Inc., may have

in lands under water adjoining the aforementioned tract,

together with such rights as the Luckenbach Terminals,

Inc., may have conveyed to the New Jersey Junction

Railroad and The New York Central Railroad and to the

County of Hudson.

Being also known as Lot 4 A. B. in Block 438 C on

the Township Assessment Map of the Township of

North Bergen in the County of Hudson.”

—

19

On April 22, 1940, during the argument of a motion to

strike the answer filed by the appellant in that suit,

the charge was made that the solicitor of the appellee

Township knew, when he filed the bill for the appellee,

that the ripa acquired in April, 1934, had not been sold

for taxes; and he admitted that he included that plot

in the bill beeause he thought it should be included

or something to that effect.

Because the foreclosure suit was a new suit and between

other parties than those in the instant case, I refrained

from mentioning these facts in any of the papers hereto-

fore filed herein, but now that the appellee has brought

it in, I am compelled to mention it. On February 24,

1940, when the bill was filed in the foreclosure suit, the

solicitor for the appellee could not have known of my

intention to try to get a review of the present case in

the Supreme Court of the United States, and he now

claims in his brief that the appeal to Washingon is

“manifestly taken for delay only”. The value of the

real estate involved in this foreclosure suit, including the

parcels attempted to be foreclosed, which were never sold

for taxes, amounts to about one million dollars, and a

pill filed to foreclose the equity of redemption after a

tax sale is fatal if it includes more lands than were

sold at the tax sale. (Welles v. Schaffer, 98 N. J. Eq. 34.)

The appellee, Township, in its brief filed on the motion

to dismiss or affirm, does not say that the federal ques-

tion of “due process of law” was not timely or properly

raised in the state courts, but practically admits that the

state courts decided the case on independent and non-

federal grounds adequate to support their decision; but

the appellant says that the appellee has failed to show that

any of the non-federal grounds upon which the decisions of

the state courts rest are tenable or broad enough to

20

support their decision, or that they have a fair or sub-

stantial basis.

The refusal of the state supreme court to grant the

writ of certiorari was discretionary, non-appealable, not

res adjudicata nor a final decision, and could not be

quoted by another court as a decision. State v. Wood,

23 N. J. L. 560, 561, 562; Post v. Anderson, 111 N. J. L,

303, 304.

But both the court of chancery and the court of errors

and appeals not only quoted from the decision of the

state supreme court but followed it in deciding the case,

and held that the appellant was guilty of such laches as to

be unable to maintain its case, whereas the case in the

state supreme court was instituted within the statutory

time of eighteen months after the tax sale; and the court

of chancery and court of errors and appeals decided

that fraud had not been found in the case, whereas it

appeared, and still does appear, that the whole riparian

tract in the township was apportioned so that the south-

erly three-fifths part thereof was reassessed at $9,000,

and the northerly two-fifths part at $496,000 per year,

the apportionment thereby increasing the assessment

from $202,000 to $496,000 per year on the northerly

two-fifths part, and decreasing the assessment from $303,-

000 to $9,000 per year on the southerly three-fifths part.

The case of State v. Wood, 23 N. J. L. 560, 561, was

decided in 1847, and has never been overruled, and it

recently has been in part approved by our highest state

court in Post v. Anderson, 111 N. J. L. 303.

In the opinion of the state supreme court (118 N. J. L.

348, 350) it is said:

“In July, 1933, the taxes were apportioned on

the basis of the new holdings. Applicant’s ripa

lands had been assessed at $505,000. On July 5,

—

21

1933, the assessed valuation was apportioned, $9000.

to that part of the tract to be occupied by the rail-

road company, and $496,000. to the portion retained

by the applicant. The contention of the applicant

is that the entire assessment of $505,000. should have

been apportioned upon the basis of lineal frontage,

viz, three-fifths to the railroad company, and two-

fifths to the applicant. * * * That the apportionment

for the years 1930 to 1933, inclusive, was made in

July, 1933, ° ° ° and applicant received knowledge

of the apportionment in April, 1934, at or immedi-

ately after the transfer of titles.”

The triangular shaped piece conveyed by the State

of New Jersey to the appellant on March 8th, 1934 (con-

veyance dated February 14, 1934, R. 978 to 287) is shown

as bounded by red lines (R. 287), and the same day that

it received the conveyance from the State, it conveyed

to the railroad companies “a permanent and perpetual

easement and right of way for the construction, mainte-

nance and operation of the railroad” in all parts

thereof but a strip five feet wide and 635 feet long on

the riverward or easterly side, which it retained in order

to preserve to itself the thing of value in the entire hold-

ing, namely, the preferential right to obtain a grant or

lease from the state of the submerged land contiguous

thereto (R. 241 to 255). This reservation is shown in the

deed on page 248 of the record. These facts were ad-

mitted at the trial. Se how could the state supreme court

say that the apportionment of taxes on July 5, 1933, were

on the basis of the new holdings acquired nine months

later? Section 4 of the unconstitutional apportionment

act provides that:

“4, That the apportionment shall be made accord-

ing to the value of the respective subdivisions at the

time the respective charges were levied or imposed,

22

unless the claim is justly chargeable only to a par-

ticular part of such parcel.”

This riparian right, on July 5, 1933, had cost the

appellant at least $800,000 in addition to the taxes paid

thereon from the year 1920 to 1929, inclusive, but the

state court of first instance said nothing in its opinion

about the constitutionality of the apportionment act of

1919, although the first point in the brief submitted to

that court for the appellant contained a quotation of the

“due process of law” clause as set forth in Section 1 of

the Fourteenth Amendment to the Constitution of the

United States, and a claim that the act was unconstito-

tional because Section 6 thereof provided that “appor-

tionments may be made without notice to interested

parties”.

The conveyance of the additional triangular shaped

tract by the State of New Jersey on March 8, 1934,

could not have been and was not taken into considera-

tion in apportioning the taxes for the years 1930 to

1933, for as we have shown at the foot of page 7 of our

“Statement as to Jurisdiction”, lands owned by the state

are not subject to taxation, and under the prevailing

General Tax Act (Laws of N. J. for 1918, Ch. 236, See-

tion 501, page 862) this land after it was acquired from

the state could not be assessed until October 1, 1934, for

the taxes for the year 1935. So, they were not included

in the apportionment of July 5, 1933, upon which the

tax sale is based.

And referring to the case, quoted on page 3 of our

“Statement as to Jurisdiction”, of Security Trust Co. v.

Lexington, 203 U. 8S. 325, 333, we say that part of the

opinion of the state supreme court which holds, at page

351, that the appellant should have sought a reapportion-

23

ment under Section 6 of the Apportionment Act of 1919,

does not conform thereto; in which respect the state

supreme court fell into error, but an error not review-

able.

V.

Alleged Other Tenable Grounds Did Not Exist.

Then again, the question of laches, decided by the

state supreme court, at page 951 of its opinion: It is

clear that a tax sale having intervened on September 12,

1935, at which the two-fifths northerly part of the riparian

lands, retained by the appellant after the apportionment,

was sold, nothing could be done after that about a re-

apportionment until the tax sale was reopened, for while

the tax sale stood, there could be no reapportionment.

As a general principle, laches is not a bar where a tax

is assessed in violation of constitutional rights, or if the

tax is otherwise a void lien, Mitsch v. Riverside, 86

NX. J. L. 603, 610; Walsh v. Newark, 78 N. J. L. 168, 170;

and Meredith v. Perth Amboy, 63 N. J. L. 520, 522, the

last-cited case holding that :

“This statutory limitation of eighteen months upon

the allowance of a prerogative writ cannot be en-

forced for the protection of an assessment which

the legislature could not constitutionally authorize.”

And by the law of the state, appellant was within

time in bringing the action in the state supreme Court,

for the rule to show cause why a certiorari should not be

granted was made on March 11, 1937, and within the

eighteen months succeeding the tax sale as required by

Section 14 of “An Act relative to the Writ of Certiorari”

(Vol. 1 Compiled Stat. 407, as amended by P. L. of 1925,

p. 77). (See last page of this brief.)

eee EE eee

As to the charge of fraud: The fact remains that the

southerly three-fifths part of the 1,010 feet in length of

ripa that was apportioned stands assessed by the appor-

tionment for $9,000 per year while the northerly two-

fifths part is assessed by the apportionment for $496,000

per year, and we say that is fraud which was calculated

to take over one hundred thousand dollars out of appel-

lant’s pocket at least inherent fraud. Surely no appor-

tionment act should be so construed that it will enable

the person or persons appointed to make the apportion-

ment to increase or decrease the assessed valuations so

that an assessment of $500 per foot of frontage on the

shore of the two-fifths part is increased from $202,000

to $496,000 per year, while the apportionment of $500

per foot of frontage on the shore of the remaining three-

fifths part is decreased from $303,000 to $9,000 per year,

unless there was something in the value of the respective

prices which was not present here. When the taxes were

assessed the value of $500 per foot was there.

The charge that the court of chancery of New Jersey

did not have jurisdiction to hear the case, because the

appellant here had an adequate remedy at law by cer-

teriori in the state supreme court, and that a municipality,

in assessing, levying and apportioning taxes, is within

the province of a court of law. In the suit in the lower

courts, when the appellant was turned away from the

state supreme court, it sought help from the only other

available court, the court of chancery of New Jersey,

where among the other relief prayed was that the Town-

ship be restrained from enforcing the illegal tax sale

and apportionment. There were also charges of uncon-

stitutionality in the Apportionment Act, fraud and con-

cealment in the making of the apportionment, over which

subjects the court of chancery had jurisdiction. The

decision of Vice-Chancellor Backes in Commercial Co. v.

pie)

Southern Surety Co., 100 N. J. Eq. 92 (affirmed in 101

N. J. Eq. 738) shows that where the jurisdiction of

courts of law and equity for the redress of fraud is con-

current, the court of equity should retain jurisdiction in

eases where the remedy at law is not as complete as in

equity. Cases are cited in the opinion where the courts

of chancery retained jurisdiction because of its power of

cancellation of an instrument and to grant an injunction.

The bill of complaint filed in the court of chancery con-

tained all the allegations necessary in a bill to quiet title

under the “Act for Quieting Titles” of March 2, 1870

(4 Compiled Stat. 5399, Sec. 1) and may be said to be a

bill quia timet as well. Smith v. Cohen, 123 N. J. Eq. 419.

In Welles v. Schaeffer, 98 N. J. Eq. 31, 33, Vice-Chan-

cellor Backes held that an attack on a certificate of tax

sale, if void, is by bill to remove the cloud or bill to quiet

title, or, if voidable, by certiorari.

The Township and County, appellees, have assumed

the position throughout that the commissioners of the

township had the right on July 5, 1933, to make the

apportionment based on what might thereafter occur,

and a further proposition that they had the right to

disregard the annual assessment of taxes levied for the

years 1930 to 1933 against the ripa lot, 4-A, and reduce

the annual assessment against the southerly three-fifths

part that might be conveyed to the railroad company,

from a valuation of $500 a foot to $14 a foot of frontage

per year, and add the difference of $291,000 of valuation

per year to the two-fifths part that might be retained by

the appellant, just because it might retain the rights at

some future time to acquire the submerged lands lying

in front of the two-fifths part. Such an apportionment

was illegal and void, and the court of chancery had the

jurisdiction to set it and the tax sale based thereon aside.

i eel —

Bogert v. Elizabeth, 27 N. J. Eq. 568; Kirkpatrick y,

New Brunswick, 40 N. J. Eq. 46, affirmed 41 N. J. Eq. 347;

Smith v. Cohen, 122 N. J. Eq. 419; Commercial Co. v.

Southern Surety Co., 100 N. J. Eq. 92, affirmed 101 N. J.

Eq. 738.

The taxes for the year 1930 to 1933, inclusive, on this

whole ripa tract, 4-A, were high and were based on the

preferential right existing throughout each of those years

in the owner to aequire from the State the adjacent lands

under water. They were assessed, as the Exhibits B, C,

D and E attached to the bill show (R., pp. 38, 39),

according to the frontage of 1,010 feet on the River at

$500 per foot a year. The fact that nine months after

the making of the apportionment of July 5, 1933, the

appellant acquired a new high water line from the State

upon which its preferential right would thereafter depend

could not be taken into consideration, for, in making

its conveyance to the railroad companies, the appellant

would convey an easement rather than the fee and would

reserve its riparian rights for which, and the acreage

of land in the rear, it had paid $1,750,000 in the year

1920. (See $1,750 of cancelled revenue stamps attached

to deed Ex. 11, R., pp. 312 to 318.)

Given a tract of vacant land of equal length, breadth

and value throughout, how could a municipality honestly

apportion unpaid taxes thereon other than in accordance

with the length of the respective parcels into which it

was to be divided. The Apportionment Act of 1919, even

if it is not constitutional, provides in its fourth section,

that:

“4. That the apportionment shall be made accord-

ing to the value of the respective subdivisions at the

time the respective charges were levied or imposed,

unless the claim is justly chargeable only to a par-

ticular part of such parcel.”

27

The two-fifths part of this ripa plot retained by the

appellant gained no increase in value and the claim that

about all but $9,000 of said taxes of $505,000 per year

assessed against all of said plot could be chargeable only

to that part of it retained by the appellant, known after

the apportionment as Plot 4-AB, is preposterous.

In Fitzgerald v. Faunce, 46 N. J. L. 536, it was held

by the court of errors and appeals of New Jersey, in

giving consideration to a grant of an easement for the

exclusive use of lands “It is a grant of the soil itself and

not a mere easement, as it is difficult to understand how

the exclusive use could be demised and the land not.”

This brings us to a consideration of the charge (on p.

9 of the Appellee’s Brief) that they did not make

the admission, charged on page 6 of the statement as

to jurisdiction filed by the appellant. But a refer-

ence to the record will show that they did so admit.—I

turn to page 104 of the Record, and there find under

heading of “stipulations”, which I read to the court (20th

line) that “paragraphs 24, 25 and 26 (of the bill) are

admitted. 27, 28 and 29 are denied”, and it appears in

the next line, that Mr. Schloeder said to the court “If the

court please, again there, we simply refer to the instru-

ments. He draws conclusions from the instruments, and

the instrument of course we admit”.

Turning to page 6 of the Statement as to Jurisdiction,

I find the part quoted by counsel of the appellee Town-

ship, and an examination of Exhibit G (pp. 42 and 43

of the Record), shows the resolution for the apportion-

ment adopted and signed, on July 5, 1933, by three of the

township commissioners, apportioning $9,000 yer year

to the southerly three-fifths part of the plot 4-A, Block

438-C, and known as 4-AA in Block 438-C, and $496,000

per year to the northerly two-fifths of plot 4-A or 4-AB,

28

in Block 438-C. In making up the Statement as to the

Jurisdiction, of course, we did not pretend to quote the

facts from the testimony as recorded and so had to

condense them. Said Exhibit G proved the allegations

of paragraph 28 of the bill (R. 108). Mr. Schloeder said

on the argument, made and reiterated before trial, to

strike the bill of complaint, that “practically everything

ean be stipulated except this allegation of fraud” (R. 100),

But the paragraph which follows and says, “that the three

state tribunals who passed on the question had deter-

mined the challenged statement to be without substance”,

is a fiction, for taking the first, the state supreme court

(118 N. J. L. 348 to 352), says (on p. 350):

“Prosecutors ripa lands had been assessed at

$505,000. On July 5, 1933, the assessed valuation

was apportioned $9,000 to that part of the tract to

be occupied by the railroad company and $496,000

to the portion retained by the prosecutor. The con-

tention of the prosecutor is that the entire assess-

ment, that is to say, $505,000 should have been ap-

portioned upon the basis of the lineal frontage, viz.

three-fifths to the railroad company and two-fifths

to the prosecutor.”

The second court to pass on the question, the court of

chancery (Opinion, R. 70 to 74) from which it appears

that before the apportionment the ripa tract was known

as Plot 4-A, in Block 438-C, which by the apportionment

was divided into two pieces, known as the Lot 4-AA, in

Block 438-C, and Lot 4-AB, in Block 438-C, * * * (p. 72)

and that 4-AB was thereafter assessed at $496,000; and

it does not say what it found was assessed by the appor-

tionment on lot 4-AA, but it must have been the re-

mainder, of $9,000.

The third court was the court of errors and appeals,

and an examination of its opinion fails to disclose any

reference therein as to the riparian lot which was apor-

tioned (Appendix A to Statement as to Jurisdiction).

As to appendix “A”, annexed to appellee’s Statement in

Opposition, is attached what purports to be all of the

testimony of the township assessor, but it takes in only his

direct examination, the cross-examination is left out.

However, his testimony amounts to saying that he assessed

$16,000 for the land, a length of 1,010 feet (p. 239) and a

width of 5 to 8 feet, and $496,000 for the ripa rights, but

that in 1932 after the State Board of Taxation had reduced

the total assessment from $757,500, on the whole of

plot 4-A, to $500 per foot, he followed the assessment

so made by the State Board. His testimony is contra-

dicted by all the other evidence in the case.

When the amended tax bills were made out, after the

apportionment, the bills for 1930 to 1933, inclusive, were

dated back and show what this last witness testified to,

not an allocation of $16,000 on land for one piece and

$496,000 for ripa, but $9,000 for the southerly three-fifths

part known as plot 4-AA (R. 366, 367) and $496,000 for

the northerly two-fifths part known as plot 4-AB (R. 368,

369). What was the apportionment made for but to

divide the unpaid taxes that appeared against the ripa

plot on July 5, 1933? It was not to determine, as now

claimed by the appellee, how much should be assessed

against the land and how much against the ripa.

The next paragraph of the motion (Statement against

Jurisdiction, p. 7) to dismiss the appeal states that

the appellant retained “all of the valuable riparian

rights in the lands constituting approximately 98% of

the easement”. The efforts of the appellee Township

have been to deprive the appellant of its valuable

riparian lands, which cost it, in 1920, over $800,000 and

since then about $200,000 expended on account of a lease

from the state of the lands under water (R. 346 to 355)

and hundreds of thousands for taxes, which land it was

not willing to give away to a railroad company and a

county. The appellants did not make any agreements

in writing with the railroad company or county, but lived

up to its verbal agreement and expected them to do like-

wise.

The acquirement in 1934, after the apportionment was

made, of the triangular shaped tract of submerged land,

was put through not to help the appellant in any way,

but because the railroad company needed a new roadbed

54 feet wide, and it was planned by the county engineer,

including a new five foot riparian fringe which, of course,

would give the appellant an inferior position in respect

to acquiring submerged lands, for even this five feet

wide riparian fringe was taken by the railroad for slopes

and embankments of their road bed (R. 245, 246).

The Apportionment Act of 1919 is unconstitutional and

provides by its fourth section (Statement of Jurisdiction,

p. 2) that:

“The apportionment shall be made according to the

value of the respective sub-divisions at the time the

respective charges were levied or imposed, unless the

claim is justly chargeable only to a particular part

of such parcel.”

and Chapter 208 of the General Tax Act of New Jersey

of 1903, provides in Section 31, “that in making appor-

tionments the lands shall be assessed in accordance with

the value thereof when the taxes came due”. The taxes

for 1930 to 1933, inclusive, were past due and unpaid

when the County made its verbal agreement and the

appellant expected it to live up to the agreement. The

$65,000 paid by the County to the appellant was for the

damage arising from the change of grade, as shown by

the unsigned letter submitted by it to the appellant (R.

338, 339).

—

31

Answering the contention, set forth in the last para-

graph on page 3 of the adversary’s brief, we have to say

that the Apportionment Act of 1919, being unconstitu-

tional, the appellant was not obliged to seek recourse to

the reapportionment provided by it (Security Trust Co.

y. Lexington, 203 U. S. 323, 333) but had the right to

treat it as unconstitutional. The appellant says that if

the appellant had been treated honestly and fairly by

the Township-Appellee there would have been no trouble.

The sale for taxes, of September 12, 1935, amounting to

$172,856.59 against plot 4-AB should have been for about

$65,000 and for the additional five years, since 1934,

about $115,000 more, a total to 1939, inclusive, of $180,000

instead of $376,177.77 as stated on page 4 of opposing

brief.

The failure of the appellant to take advantage of the

alleged remedy afforded by Sections 6 and 7 of the

Apportionment Act is that that Act is unconstitutional,

and it did not require that any notice should be given a

taxpayer of an apportionment.

The eases quoted by the appellee, namely, Farncomb

v. Denver, 252 U. S. 7; Pittsburgh v. Board of Public

Works, 172 U. S. 32; Weyerhaueser v. Minnesota, 176

U. S. 550, and Utley v. St. Petersburgh, 292 U. 8. 106;

are all based on some law which required a taxpayer or

interested party to have notice, before or after the final

determination of the amount which had to be paid, so

that he could be heard, but that is one reason why the

unconstitutional Apportionment Act in the instant case

should be condemned.

On page 9 of his brief, the adversary says that the

taxpayer was afforded a full and complete hearing upon

the merits in the state supreme court, but there again is

a question of difference, for the taxpayer says that after

the argument, on Saturday, May 1, 1937, of the rule to

32

show cause before the chief justice, the rule to show cause

was denied, but without prejudice to an application to

be made to the second branch of the court at Trenton,

on May 4, 1937, and the state of the case and brief had

to be printed by that time and notice of the argument

given, and the argument was heard on May 6, 1937, and

in the short time of one-half an hour given to argue

the taxpayers’ side, the court could not have under-

stood the case. In receiving the brief submitted by

my adversary, I find that he says, at page 2 thereof,

that the riparian rights which go with the ownership

of a ripa consist of a right, upon payment to the state,

to fill in the submerged lands in front of the ripa,

and that such right was valued in the instant case at

$500,000, but I call the Court’s attention that the right

is more extensive, and that upon a grant of submerged

lands by the state to a riparian owner he becomes the

owner of the fee to the land lying under water with the

enjoyment of same as any other owner of land; and I

have yet to see any explanation of why a Township

should take such a deep interest in these lands. It can

make no difference to the Township what property

owners seek to do with their lands or what contracts

they make regarding it so long as they keep within the

law.

I have made answer to all the points raised. No notice

was given the taxpayer in the present case either before

or after the apportionment that its lands had been ap-

portioned, and that is where the vice of this unconstitu-

tional act lies, and as the secretary of the appellant

taxpayer testified in the suit in the court of chancery:

“That 4-AB meant nothing to me as I did not know

what 4-AB meant, and although I tried to find out, I

was unable to do so” (R. 185). One bill, out of the

fifty-two offered into evidence, was stamped “Appor-

—_ageamiareae

33

tioned by the Board of Commissioners, July 5, 1933.

Corrected bill” (R. 175), but the witness testified that

the dates 1930, 1931, 1932 and 1933, upon the amended

tax bill did not refer to the time they were received by

him, but were bills with the old year numbered upon

them (R. 184) and when he got bills after the appor-

tionment of 4-AA for $9,000 and of 4-AB for $496,000

he did not know which bill the appellant should pay

(R. 185).

The answer to Point B and Point C on pages 4 and 5

of the adversary’s brief, is that no notice was called for

by the Apportionment Act and appellant had the right

to treat it as unconstitutional and not entrust hundreds

of thousands of dollars to the township commissioners

under Section 9 of that act in order to obtain a re-

apportionment, and that when appellant learned of the

result of the apportionment in February, 1937, there had

already been a sale of its lands for taxes.

Point D, on page 5 of the adversary’s brief, has al-

ready been answered.

When the case of Moran v. Horsky, 178 U. 8. 205, 207,

was decided, and even as late as the decision in the case

of Preston v. Chicago, 226 U. S. 447, 450, the Act of

December 23, 1914, 38 Stat. 790, of the Judicial Code

had not been passed, empowering the Supreme Court to

review decisions of state courts sustaining the claim of

federal right, in addition to those denying it, but even if

that were not so, the laches or delay in the Moran v.

Horsky ease (supra) was fourteen years.

And the same should be said of the decision in Smith

y. Adsit, 83 U. S. 185, and Pierce Oil Co. v. Texas, 212

U. S. 86, and the eases therein cited.

The taxpayer did not exercise his mandatory right to

34

have a reapportionment on notice. One reason for its

not doing so was that it knew nothing about the appor-.

tionment having been made, but if it had known, it

would not have exercised the right and paid down a

hundred thousand dollars more than it could have been

justly taxed.

The appellee has quoted from Security Trust Co, vy,

Lexington, 203 U. 8. 335, where the taxpayer had a hear-

ing in court before seeking a review in the Supreme

Court of the United States and a reduction of about

$5,000 had been made in its tax, and therefore it had

received all the hearing it was entitled to,

This leaves unconsidered only one case cited by the ap-

pellee, namely, McGregor v. Hogan, 263 U. S. 234, and

there the taxpayer had notice.

It is well settled that the jurisdiction of the Supreme

Court to review a judgment of a state court, the effect

of which is to deny a federal right, cannot be defeated

by placing such judgment on non-federal grounds which

are plainly untenable.

Postal Telegraph Cable Co. v. Newport, Ky., 247 U. 8.

464, 475, 476; Ward v. Board of County Commissioners

of Love County, Okla., 253 U. 8S. 17, 22; Broad River

Power Co. v. South Carolina, 281 U. 8. 537, 540; Ancient

Egyptian Arabic Order of the Mystic Shrine v. Michauza,

279 U. S. 737, 745; Lawrence v. State Tax Commission

of Mississippi, 286 U. 8S. 276, 282; Enterprise Irr. Dist.

v. Farmers’ Mut. Canal Co., 243 U. 8. 157, 164; Love v.

Griffith, 266 U. 8. 32, 33; Chicago B. & Q. Ry. v. Chicago,

166 U. 8. 226.

The law in New Jersey is clear that when a bill of

complaint is filed for the enforcement of a legal right,

the equitable remedy is not ordinarily barred by a mere

acquiescence for a period less than the statutory limita-

35

tion of law in a similar case. Massie v. Asbestos Brake

Co., 95 N. J. Eq. 298, 311; Paterson v. East Jersey Water

(‘o., 74 N. J. Eq. 49, 97, affirmed 77 N. J. Eq. 588.

The motion to dismiss the appeal or to affirm the

decree of the New Jersey Court of Errors and Appeals

should be denied.

Respectfully submitted,

CLARENCE KELSEY,

Counsel for Appellant.

Dated, May 25, 1940.

(M674)