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(108 A.)

than 10,000 population, by a board consisting, was repealed by implication must find its of three commissioners. P. L. 1911, § 3, p. proper solution and determination in the 464, so-called "Home Rule Act" of 1917, as amended by the act of 1918.

Section 6 of the act of 1911, inter alia, provides that every ordinance relating to the granting of franchises, or the right to occupy or use the streets, bridges, or public places, etc., must receive the approval, by vote, of one more than a majority of all the members, before being finally adopted.

Above all it is to be borne in mind that the Home Rule Act furnishes a full and complete scheme for the governing of municipalities, defining their powers and the procedure and method of enforcing them.

Article 10 of the statute of 1917 deals with the subject of ordinances in great detail, and, among other things, on page 345 of the act establishes the procedure for the passage of ordinances and by providing (section 1) as follows:

Section 3 of the act of 1911 was amended in 1912 (P. L. 1912, p. 644) so as to permit a municipality, by ordinance, to increase a board of commissioners, consisting of three members, to five, or to decrease a board of five commissioners to three. This section, like the original, provides that a majority of the members of the board shall constitute a quorum, and that the affirmative vote of one more than a majority of all the members shall be necessary to adopt any motion, resThis makes it apparent that the requireolution, or ordinance, or pass any measurement of section 6 of the act of 1912, as a unless otherwise provided for in the act.

The only important change made in the phraseology of section 6 by the amendment of 1912 was to insert the word "such" so as to read "such ordinance," instead of "every ordinance," the plain effect of which was to leave the requirement of the section that one vote more than a majority was necessary for the passage of ordinances concerning the subjects mentioned in the section, only applicable to ordinances granting

street franchises.

For the defendants it is claimed that the requirement of section 6 that the vote of one or more than a majority of all the members of the board is necessary to pass a valid ordinance, granting any franchises or the right to occupy or use the streets, was impliedly repealed by an act entitled "An act concerning municipalities" approved March 27, 1917, as amended in 1918 (P. L. 1917, p. 319;. P. L. 1918, p. 478); that since these enactments the passage of any ordinance may be lawfully effected by a majority vote. We think this contention is sound.

A careful examination of the statutes last referred to convinces us that it was the clear design of the Legislature to do away with the differentiation of the number of votes required in commissioned governed cities to pass an ordinance relating to the granting of franchises, etc., from the number of votes required to enact ordinances relating to other matters of equal, if not of more, importance to the citizens of such municipalities, and to establish a uniform rule by placing the passage of all ordinances by a majority vote in all municipalities, whether under the form of commission government, or under mayor and common council, or any other form of municipal rule.

The question whether the provision of section 6 of the act of 1912, concerning the vote required to pass an ordinance relating to the granting of franchises, etc., by municipalities

in any municipality concerning the procedure "Nothing herein shall repeal any law effective for the passage and publication of any ordinance or resolution, except. *

matter of procedure, that one more vote than a majority must be cast to pass a valid ordinance relating to the granting of franchises, etc., was kept alive by force of the nonrepealing clause. The necessary inference is that it was not the legislative design at that time to repeal any law which concerned the procedure for the passage and publication of any ordinance.

It is equally clear that in 1918 the legislative mind underwent a change. Article 10, from which the above excerpt of the nonrepealing clause was taken, was amended, and the entire above quoted nonrepealing clause was excised from the act. The legal effect of this was to impliedly repeal section 6 as to method of procedure for the passage of an ordinance.

It is to be observed that the nonrepealing clause refers to "any law concerning procedure for the passage and publication of any ordinance or resolution."

The circumstance that the Legislature eliminated the nonrepealing clause from article 10 must be given some significance. The necessary inference is that the Legislature intended to make the procedure for the pas→ sage of ordinances and resolutions uniform throughout the various municipalities. A comparison of section 6, of the act of 1912 with the amended article 10 of the act of 1918 will disclose that the latter provides a complete method of procedure for the passage of an ordinance.

We think the rule approved of by the Court of Errors and Appeals, in Eldridge v. Phila. & Reading R. R. Co., 83 N. J. Law, p. 463, 85 Atl. 179, that "when the Legislature frames a new and general rule covering an entire subject-matter all earlier and different rules touching the same matter are to be discarded in favor of such later rule," is peculiarly applicable to the situation created by the passage of the Home Rule Act in regard to the procedure for the passage of ordinances.

To the same effect is Haynes v. Cape May, or passage of a motion or the doing of any other 52 N. J. Law, 180, 19 Atl. 176. act the board has power to do."

[5] We think that when it appears, as it does in this case, that the Legislature inserted a nonrepealing clause, in a statute in relation to procedure for the passage of an ordinance, and in a later amending statute providing for procedure left out the nonrepealing clause, it by necessary implication repealed such procedure clause of the former statute.

That such repeal was not inadvertently brought about in the present case, but was expressly intended, is evidenced by the fact that there was added to the amended article 10 this paragraph:

"Before any ordinance shall take effect, such ordinance or its title shall be published at least once in a newspaper circulating in such municipality. It shall not be necessary to publish an ordinance otherwise than as required by this act."

Keeping in view that the Legislature was dealing with all ordinances, and that it declared that it shall not be necessary to publish an ordinance otherwise than as required by the latter act, it seems to us that there could not have been a more expressive declaration of the legislative intent that all ordinances shall be governed by the act of 1917 as amended by the act of 1918 than expressed.

Other cases on the subject and to the same effect are: McDermott v. Miller, 45 N. J. Law, 251; Cadmus v. Farr, 47 N. J. Law, 208, in which the English and American cases on the topic are collated by Magie, J.; Hutchinson v. Belmar, 61 N. J. Law, 443, 39 Atl. 643; Whittingham v. Milburn Tp. (Court of Errors and Appeals) 90 N. J. Law, 347, 100 Atl. 854, 102 Atl. 1054.

For the prosecutor it is argued that "there is no such inconsistency between the two acts as to make an implied repealer." We have already endeavored to point out that

the action of the Legislature in omitting the nonrepealer clause in the amendment of 1918 was tantamount to an express repeal of the provision relating to ordinances for franchises contained in article 10 of the act of 1917. The legislative mind might have been influenced by the fact that there was no substantial reason why an ordinance relating to a franchise should require four votes in cities having five commissioners and a unanimous vote in cities having only three commissioners, while all other ordinances, no matter how important or grave to the public welfare, could be lawfully passed by a majority vote. Further, the Legislature might have had in mind that to make an especial exception in the regard pointed out for the passage of ordinances relating to street fran

Moreover, a fair reading of the Home Rule Act clearly indicates that the legislative pow-chises would have a tendency to foster monopers conferred by the act on municipalities are to be exercised by them, so far as the regulation of their internal affairs are concerned, solely in accordance with the provisions of the act. Its clear object was to erect a machinery of administration of municipal affairs which shall operate uniformly in all municipalities.

[6] The fact that the Home Rule Act makes no provision whatever as to what vote shall be sufficient for the passage of an ordinance or the transaction of any other lawful business is a cogent circumstance tending to establish that the Legislature intended that the common-law rule apply that a majority vote of the members of the municipal body constituting a quorum shall be sufficient for the purposes mentioned.

This legal rule is well expressed in Barnert v. Paterson, 48 N. J. Law, 395, by Knapp, J., at page 400 (6 Atl. 15, 17), where he says:

"When the charter of a municipal corporation or a general law of the state does not provide to the contrary, a majority of the board of aldermen constitute a quorum, and the vote of a majority of those present, there being a quorum, is all that is required for the adoption

If

olies, by circumscribing the granting of fran-
chises for the use of the public streets to
prospective competing corporations or per-
sons within almost prohibitive bounds.
the original purpose of the exception was to
shackle the will of the majority in granting
franchises, and in order to make it more
onerous for applicants for street franchises
for a legitimate purpose to obtain them, then
such exception is wholly irreconcilable with
the spirit of the Home Rule Act.

We are inclined to the view that, where the Legislature, by a general statute, as here, covered the entire subject of municipal powers and procedure thereunder, as granted to the municipalities of this state, failed to make any provision for the number of votes which shall be necessary for the passage of an ordinance or the transaction of any other lawful business, the lawmaking power intended to adopt the common-law rule, as above stated, and hence any exception, existing in a former statute to the common-law rule, and which is inconsistent with such rule, is impliedly repealed, unless the exception is in express terms retained by such general statute.

The ordinance will be affirmed, with costs.

(108 A.)

(93 N. J. Law, 427)
Upon contracts made between the commis-
PASSAIC VALLEY SEWERAGE COM'RS v. sioners and municipalities for an intercepting
MAYOR AND ALDERMEN OF JER-

SEY CITY et al. (No. 42.)

sewer or sewers, plant, and work authorized by the act, they "shall have full power in their corporate name to purchase and acquire all

(Court of Errors and Appeals of New Jersey. lands, rights and interest in lands, either withNov. 17, 1919.)

in or outside the territory of the joint contracting municipalities, which may be necessary for

1. TAXATION 217 - LAND ACQUIRED FOR the construction of such intercepting sewer or

SEWERAGE PURPOSES.

Lots acquired by Passaic Valley Sewerage Commissioners, incorporated and given certain powers by P. L. 1902, p. 195, and P. L. 1907, p. 22, page 29, § 5, and page 33, § 11, for the purpose of Passaic Valley sewer for which certain cities contracted with commissioners, is the property of the municipalities who joined in the contract and within exemption of Tax Act 1903 (P. L. p. 394).

sewers, and its appurtenances, and for this purpose are authorized to condemn the same in the manner provided by the general laws of this state relating to the condemnation of lands for public use."

Nineteen cities contracted with the commissioners for the construction of the Passaic. Valley sewer.

For the purposes of such sewer the com

2. TAXATION 184-LAND USED FOR INTER- missioners acquired two certain lots of land

CEPTING SEWER NOT TAXABLE.

Lots acquired by Passaic Valley Sewerage Commissioners, incorporated and given certain powers' by P. L. 1902, p. 195, and P. L. 1907, p. 22, page 29, § 5, and page 33, § 11, for the purpose of construction of intercepting sewer to relieve the Passaic river from pollution, does not come within P. L. 1910, p. 199, making land used for protection of water supply taxable.

Appeal from Supreme Court,

Certiorari by the Passaic Valley Sewerage Commissioners against the Mayor and Alderman of Jersey City and others to review sale of real estate for taxes. Judgment for defendants (105 Atl. 722), and plaintiff appeals.

Reversed.

Riker & Riker, of Newark, for appellant.

in Jersey City. These lots were assessed for taxes by the city for the years 1914 and 1915, which taxes having remained unpaid for more than two years, the lots were sold; the city becoming the purchaser.

The appellant, by writ of certiorari, sought in the Supreme Court to have the assessment for taxes and the sale had thereunder set aside upon the ground that the lands of the appellant were exempt from taxation and as a corollary were exempt from sale for taxes.

The Supreme Court dismissed the writ, and the legal propriety of such dismissal is brought here, by the appellant, for review.

[1] The learned judge in the opinion states in succinct fashion the legal question involved, thus:

"The prosecutors claim exemption under the tax act of 1903. * * * Section 3 of that act

John Bentley and Edward P. Stout, both exempts property of the United States, the state

of Jersey City, for respondents.

KALISCH, J. The Passaic Valley Sewerage Commissioners is a body politic and corporate organized under the act of 1902 (P. L. 1902, p. 195), to perform certain public functions and duties. Its powers and duties were further defined by legislative enactment in 1907 (P. L. 1907, p. 22).

of New Jersey, 'and of the respective counties, school districts and taxing districts when used for public purposes.' The property taxed is property necessary for the public work of an the Passaic river for the benefit of the municiintercepting sewer to prevent the pollution of palities in the Passaic Valley. There is no question that it is used for public purposes. It is not property of a county or school district. The only question is whether it is property of

By section 11 of the later statute, pages a taxing district or taxing districts." 33 and 34, it is declared that

"The said Passaic Valley Sewerage Commissioners heretofore appointed, and their successors in office, are and shall continue to be a body politic and corporate, with perpetual succession under the name of Passaic Valley Sewerage Commissioners, with power to sue and be sued, with power to adopt and use a corporate seal, and with the right, power and authority to acquire, hold, use and dispose of all such property, real or personal, as may be proper or necessary, and with all other power or authority proper or necessary to carry out and effectuate the purposes for which the said board is created."

The learned judge answers this query by holding that the lots held by the commissioners for the public purpose for which they were acquired were not exempt from taxation, because it could not be properly said that the board of sewerage commissioners is a "taxing district" within the meaning of the Tax Act of 1903 (P. L. p. 394).

Its

We think this is a too narrow view of the meaning of the act. Sight is lost of the fact that the appellant is a body politic. officers are appointed by the Governor, re ceive a fixed salary paid out of the public treasury, and half of the costs and expenses

By section 5 of the act, page 29, it is pro- incurred by the board in investigating and vided, inter alia, that

performing the duties imposed upon it by

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the act is paid out of the state treasury, and | by condemnation are to pass to the board in as to the other half the costs and expenses trust for the county," therefore such propthe board is authorized to issue certificates, erty was property of the county and came levy taxes, etc. It is therefore manifest that within the exemption of the tax act of 1903. the board of commissioners is an arm of the state to be weilded for the achievement of certain public purposes in which the state has an interest.

To carry out this public purpose, the board of commissioners is authorized to acquire property as an agent of the state for the benefit of the states minor political divisionsin this case the municipalities. It goes without saying that these municipalities are taxing districts.

The property acquired by the sewage commissioners is acquired by it, as the state's agent, for the benefit of those municipalities engaged with it in the joint enterprise to achieve a public work undertaken by the state through its agent for the benefit of such contracting parties. And to more effectually carry out the design of the act the state has clothed the commissioners with the government, direction, and control of the joint enterprise. All of this is made manifest by the last clause of section four of the Act of 1907, p. 29, which expressly provides that the municipalities and the Passaic Valley Sewerage Commissioners in all contracts made between them pursuant to the act shall undertake and agree upon request of the commissioners to exercise and put in operation all their powers of eminent domain for the condemnȧtion of lands, rights in lands, and other property for the benefit of such joint enterprise. The section immediately following confers power on the commissioners to purchase and acquire lands, by condemnation if necessary for this purpose. For what purpose? This question is answered by section 4: "For the benefit of such joint enterprise." And this can mean nothing else than for the benefit of the municipalities who have joined in the contract with the commissioners.

It is said that this case can be distinguished from Essex County Park Commission v. West Orange, 75 N. J. Law, 375, 67 Atl. 1065, and 77 N. J. Law, 575, 73 Atl. 511, where it was held that because the act creating the commission expressly provided that land to be acquired by the cominission in the corporate name of the board shall be "for the benefit of the county," and "titles to land required

While it is true that no such express language is contained in the act under consideration in the present case, we do not consider the use of express language necessary, so long as the same purpose expressed by such language appears inferentially from the language and design of the act. We think that this sufficiently appears here. It is evident that the only permissible inference that can be drawn from the language and general design of the statute we are considering is that the property acquired by the commissioners is held for the benefit of the municipalities who had joined in the contract for the sewer. Such property is not the property of the commissioners, but the property of the municipalities, and hence comes clearly within the exemption of the tax act of 1903.

[2] For the respondent it is further insisted that, even though the appellant's lots or land were exempt from taxation, under the act of 1910 (P. L. 1910, p. 199), a supplement to the tax act of 1903, they are taxable.

This act refers to lands used for the purpose and for the protection of water supply, and provides that the lands of the respective counties, townships, cities, etc., used for the purpose and for the protection of the public water supply, shall be subject to taxation, etc.

We do not think that lands used for the construction of an intercepting sewer for the purpose of releiving the Passaic river from pollution fairly comes within the designation "of lands used for the purpose and for the protection of public water supply."

There is nothing in the record before us that discloses that the lots taxed are used for the purpose and protection of public water supply. On the contrary, it appears that the lots were acquired for the purpose of the construction of an intercepting sewer to relieve the Passaic river from pollution. In order to include this class of property of a body politic for taxation, the intent of the Legislature to do so must be clearly expressed. Trustees of Public Schools v. City of Trenton, 30 N. J. Eq. 681.

The judgment below must be reversed, and the assessment for taxes and the sale had thereunder are set aside, with costs.

(91 N. J. Eq. 131)

(108 A.)

KALISCH, J. This is an appeal from a deWALL v. AMERICAN SMELTING & RE- cree of the Court of Chancery advised by FINING CO. et al. (No. 87.)

(Court of Errors and Appeals of New Jersey. Nov. 17, 1919.)

1. EXECUTORS AND ADMINISTRATORS 518(2) -ASSETS FOR PURPOSE OF AUXILIARY AD

MINISTRATION.

An intestate's beneficial interest in a royalty agreement with a foreign mining corporation, pledged to secure his debt to a New Jersey corporation doing business in New York, the place of primary administration where the claim secured might be enforced, held to constitute assets in New Jersey for the purpose

of auxiliary administration.

2. EXECUTORS AND ADMINISTRATORS 518(4) -NOTICE ESSENTIAL TO AUXILIARY ADMIN

ISTRATION.

Under Orphans' Court Act, § 29, where there is a domiciliary administrator, the application for letters auxiliary must come from such administrator, and, if he fails to make the application within 60 days after the death of his decedent, a creditor or relative may do so upon notice to domiciliary administrator, unless the latter waives the right to administer, which is equivalent to notice. 3. EXECUTORS AND ADMINISTRATORS 519(1) —AUXILIARY ADMINISTRATION UNNECESSARY IN ABSENCE OF BONA FIDE CRFDITORS.

A bill by an auxiliary administrator to impress a trust upon assets in New Jersey will be dismissed, where the proceedings are not necessary and are not instituted in good faith; the domiciliary administrator being able to sue, and there being no bona fide creditors within

the state.

Vice Chancellor Griffin dismissing complainant's bill of complaint. The facts are fully stated in the opinion by the Vice Chancellor. It will therefore not be necessary to restate them, as it will be sufficient for our purpose to allude only to those facts which are essential to illustrate the legal rule applicable to the questions raised on this appeal.

Edwin Gould had a judgment for over a million dollars against F. Augustus Heinze, the complainant's decedent, which judgment was entered in the county of New York, on the 15th day of October, 1914. Heinze, the judgment debtor, died at Saratoga Springs, the place of his domicile, on November 4, 1914. Administration was granted by the Surrogate of Saratoga county to Mrs. Fleitman, a sister of the deceased, on the following day. She was removed by said surrogate on August 23, 1916, on an application of Mr. Gould, on June 6, 1916, and one Walter A. Fullerton was appointed in place and stead of Mrs. Fleitman. Shortly before Mr. Gould's application for Mrs. Fleitman's removal, her brother Arthur P. Heinze applied to the surrogate of Hudson county for administration upon the estate of complainant's decedent upon the ground that there were personal property-choses in action, belonging to the estate of his deceased brother within that county, and creditors of the decedent living in this state. Although Mrs. Fleitman was still administratrix under her original appointment, and had at no time during the two years of her administration applied for auxiliary letters in this state, she gave Arthur P. Heinze, shortly before he applied for letters of administration to Hudson county, waiver of her right to such administration. If there were choses of action in this state belonging to the estate of the deceased, there was no legal obstacle in the way of Mrs. Fleitman to prevent her from entorcing them. Be that as it may, she apparently did not see fit to do so. The waiver of the right to

4. EXECUTORS AND ADMINISTRATORS 519 (1) -GOOD FAITH AND BONA FIDE CREDITORS NOT SHOWN IN ACTION BY AUXILIARY AD-a

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administer in this state in favor of her brother and his application for letters in Hudson county upon the grounds that there were assets and creditors in this state clearly indicate that the object sought was to prevent any assets here from being transferred to New York, and thus fall within the grip of the preference of the Gould judgment. But whatever their motives may have been, they cannot affect one way or another the legal situation arising from the facts under re

Franklin Bien, of New York City, for ap-view. Following the order of events, we find pellant.

Treacy & Milton, of Jersey City, for respondent American Smelting & Refining Co. Albert I. Drayton, of Jersey City, for respondent Miners' Smelting Co.

that Mr. Heinze was removed from his administration and Mr. Wall was appointed administrator in the former's place and stead. As such substituted administrator, Mr. Wall instituted the present proceeding, Gilbert Collins, of Jersey City, amicus the object of which is to allow the New Jercuriæ, for Fullerton, primary administrator. sey assets to be distributed among creditors

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