Warren Railroad v. Town of Belvidere

35 N.J.L. 584

Opinion

The opinion of the court was delivered by

Bedle, J.

The tax in this case was assessed for the year 1805 against the company on its capital stock, under the law of 1862, (March 28th.) It was sustained in the Supreme Court, and also in this court. After which an alternative mandamus-was issued, commanding its payment, together with the twelve per cent, thereon as interese from December 20th, 1865. The return sets up certain facts why the writ should - not be enforced, and also that the company was not bound to pay the twelve per cent. To this return a demurrer was interposed, and the opinion of the Supreme Court sustains the right of the town to collect the tax, notwithstanding the facts of the return, but disallows the claim for the twelve per cent. The facts and questions affecting the merits fully appear in the opinion of that court. 5 Vroom 193. The conclusions reached by this court on the points now raised, are as follows:

1. The tax act of 1862 is repealed by the act of 1866, (Nix. Dig. 957, § 32,

*) but such repeal does not affect the tax as,sessed. That was a matter closed by the assessment, and, besides, has been concluded by final judgment since the repeal.

2. The twelve per cent, was a creature entirely of section fifteen of the Act of 1862, and is in its nature a penalty for delinquency in the payment of taxes. The repeal of the statute defeated the claim under it, and for that reason the mandaiMis was too broad.

3. Section twenty-seven of the act of 1866, although in words substantially the same as section fifteen of the act of 1862, yet, with some variation, is only prospective in its operation, and does not reach past delinquencies, and is not a revision or continuation of section fifteen. The whole act of 1862 is in terms repealed Without any saving clause, and the legal results of the repeal must follow.

4. Section four of an act to repeal certain acts and parts of acts, approved April 17th, 1846, (Nix. Dig. 910,) does not remove the difficulty. That section was intended only to relieve from certain consequences of the repeal made by the revision of 1846, and is not applicable to repeals by prospective legislation.

5. In examining the record brought here, it is found that it does not contain, by fair legal construction, a final judgment. There is some color of one, but it only amounts to an order overruling the demurrer, and that the town take nothing by the motion thereon. The effect of such an order is to permit an application to the Supreme Court to withdraw the demurrer, on payment of costs, and for leave to amend, or to apply for another writ, as the town may be advised. It was an interlocutory order merely, and no writ of error could properly lie thereon until final judgment. The court must therefore dismiss the writ; but, inasmuch as no objection was raised to it, and the merits have been fully argued, it has been deemed best to give the conclusions of the court thereon.

The writ of error must be dismissed, and the record remitted to the Supreme Court.

For dismissal — Bedle, Scudder, Kennedy, Lathrop, Wales — 5. ■

Contra — Dalrimple, Clement, Olden — 3.

Cited in State, North Ward N. Bank, pros., v. Newark, 10 Vr. 386; Del., Lack. & W. R. R. Co., v. Salmon, 10 Vr. 301; Middleton v. N. J. West Line R. R. Co., 11 C. E. Gr. 274.

Rev. p. 1060, § 90.