corporation, was not exempt from the tax, as the statute exempted only legacies to domestic corporations of the classes named. - [Ed. Note. For other cases, see Taxation, Cent. Dig. § 1694; Dec. Dig. 876(2).] 4. TAXATION 887 INHERITANCE TAX TIME FOR ASSESSMENT-VESTED ESTATE. Under P. L. 1909, p. 326, § 2, required a vested estate, for purposes of levying the transfer inheritance tax, to be appraised immediately at its clear market value, and that after deduction of the value of the particular estate, the tax on the remainder be levied and assessed immediately, where testatrix devised the principal sum of her estate in the hands of her executors at the end of 10 years to the United Hebrew Charities, the legatee's estate was properly assessed immediately upon testatrix's death, being vested. [Ed. Note. For other cases, see Taxation, Cent. Dig. § 1709; Dec. Dig. 887.] * societies, religious, benevolent and charitable institutions and organizations shall be exempt from taxation." In tracing the statutory history of this exemption clause we find that in the act of 1894 (P. L. 1894, p. 318) the exemption clause excepted from the operation of the act property passing to churches, hospitals, and orphan asylums, public libraries, Bible and tract societies, and all religious, benevolent, and charitable institutions and organizations, in trust or otherwise, etc. This clause was construed in Alfred University v. Hancock, 69 N. J. Eq. 470, 46 Atl. 178, by Reed, Vice Ordinary, who held that it did not exempt gifts and bequests to charitable institutions located outside this state, from a transfer tax. And on page 471 of 69 N. J. Eq., on page 179 of 46 Atl., the learned Vice Ordi Certiorari by William H. Price and others, executors, against Edward I. Edwards, comp-nary said: troller, etc., to review an assessment of the transfer inheritance tax against the estate disposed of by prosecutors' testatrix. Writ dismissed, and assessment affirmed. Argued June term, 1915, before PARKER, MINTURN, and KALISCH, JJ. W. Edwin Florance, of New Brunswick, for prosecutors. John W. Wescott, Atty. Gen., and Theodore Backes, Second Asst. Atty. Gen., for defendant. KALISCH, J. The prosecutors' testatrix, a resident of New Brunswick, in this state, died on December 23, 1913. A transfer inheritance tax was assessed by the comptroller against the estate disposed of by her under the fifth and seventh provisions of her will. It is only necessary, for the purpose of presenting the questions raised in this case, to set out the seventh clause of the will, which provides: "The overwhelming weight of authority is that where the Legislature grants exemptions from such a tax to corporations or organizations, it includes in the exemption only domestic corporations and organizations." The effect of the act of 1898, which is a supplement to the act of 1894 (P. L. 1898, p. 106), which exempts from a transfer tax Bible or tract societies, or religious institutions, boards of a church or organization thereof, in trust or otherwise, though not confined in their operations and benefactions to local or state purposes, but for the general good of the people interested therein of the United States or of foreign lands, as the board of home and foreign missions of various church denominations, regardless of the fact whether such societies, religious institutions, or boards are organized under the laws of this state or incorporated under the laws of some other state, was also considered in the case above cited, and held that the exemption did not extend to any other institutions than those expressly described and mentioned therein. It is obvious that the United Hebrew Charities, a corporation organized under the laws of the state of New York, does not come within the category of the institutions exempted by the act of 1898 from a transfer tax. It is neither a Bible nor tract society. It is not a religious inThe fairness of the amount assessed is not stitution. The mere fact that its benefacdisputed. The first objection urged by the tions are limited to those of the Hebrew prosecutors against the validity of the tax faith does not constitute it a religious inis that the bequests are to a charitable in-stitution within the meaning of the Exempstitution, for a charitable use within the tion Act of 1898. It is purely a charitable state of New Jersey, and are therefore with- organization. in the clause of the act of 1912, exempting property passing to charitable institutions. The prosecutors rely for support of their contention on the exemption contained in section 3 of the Inheritance Tax Act of 1912 (P. L. 1912, p. 368) amendatory of section 1, par. 4, Acts 1909, p. 326. Section 3 of the act of 1912 provides: "At the end of the period of ten years above mentioned I give, devise and bequeath the principal sum of my said estate then in the hands of my executors, with any and all accumulations of interest thereon, to the United Hebrew Charities, a corporation whose present address is No. 356 Second avenue, New York City, in trust to keep the same safely invested and to use the interest and income thereof for the support and maintenance of the Jewish poor people of the city of New Brunswick." "Property passing to churches, hospitals and orphan asylums, public libraries, Bible and tract The question as to the immunity of charitable institutions not organized under the laws of this state from the imposition of a transfer tax was presented in the Case of Rothschild, 71 N. J. Eq. 210, 63 Atl. 615. In that case a bequest was made to the "Hebrew Benevolent and Orphan Asylum," a corporation of the state of New York, and Magie, Ordinary, held that it was not exempt under the act of 1898, following Alfred Uni It ap versity v. Hancock, supra. This case was af- the conclusion that it was the clear legislafirmed on appeal. 72 N. J. Eq. 425, 65 Atl.tive intent to limit the operation of the ex1118. That an institution, in order to be emption to domestic corporations. entitled to the exemption under the act of 1898 as a religious institution, must be such in fact is illustrated by Bergen, Vice Ordinary, in his opinion in the Jones' Case, 73 N. J. Eq. 353, 67 Atl. 1035, affirmed by Court of Errors and Appeals, 74 N. J. Eq. 447, 70 Atl. 1101. pears that the exemption clause was again amended in 1914, but we are not concerned with that, because the law requires the tax to be assessed as of the market value of the property of which the decedent died as of the date of the death of such decedent, which, in this case, was December, 1913, and therefore it is manifest that the act of 1914 can have no application. The other grounds, urged by counsel for the prosecutors in his elaborate brief, against the validity of the assessment, may be summed up as follows: That the United Hebrew [1, 2] Thus we have it established by the settled law of this state that the exemption clause in the act of 1894 refers exclusively to domestic charitable corporations, and that the Exemption Act of 1898 refers to religious institutions or bodies, either domestic or foreign. The "United Hebrew Charities," being | Charities cannot qualify as a trustee unless neither a domestic charitable corporation nor a domestic or foreign religious institution, does not therefore come within the scope of either act. [3] Next came the act of 1906 (P. L. 1906, p. 432) the third clause of which is, in substance, the same as found in the act of 1894. It does not, however, contain the provision of the act of 1898, to the effect that the exemption extends to religious institutions, whether domestic or foreign. We must assume that when the act of 1906 was enacted, the Legislature had full knowledge of the construction placed by the courts of this state upon the exemption clauses of the acts of 1894 and 1898. Therefore when that legislative body practically enacted the exemption clause of 1894 and took care to cover the entire subject-matter contained in the act of 1898, without, however, adopting the extension of the benefit of the later act to religious bodies, whether organized under the laws of this state or not, it was tantamount to a legislative construction that the corporations of the nature mentioned in the exemption clause were intended to be domestic corporations. In the case of Gopsill, 77 N. J. Eq. 215, 77 Atl. 793, the effect of the Exemption Act of 1906 upon the Acts of 1894 and 1898 was directly discussed and considered by Walker, V. O., and he there points out with perspicacity, supported by sound reasoning, that its effect, in view of the decision of the courts of this state, was to limit its operation to domestic corporations. It is to be borne in mind that this case was decided in 1910, and that it was not until 1912 that the exemption clause under which the prosecutors claim was enacted. The phraseology of section 3 of the act of 1906, relating to the exemption of religious and charitable institutions, is the same as that of section 4 of the act of 1909 and section 3 of the act of 1912. This legislation, coming, as it did, after the decision In the Gopsill Case, lends additional force to it becomes authorized to carry on its business in New Jersey, either by filing a certificate or by local incorporation, and that this it is not, under the law, permitted to do, because of the nature of its corporation; that if it does incorporate for the purpose, it will be a domestic corporation and exempt from tax; that if it does not qualify as trustee, a domestic charitable corporation could be appointed as substituted trustee who would not be subject to a tax; that the estate consists of an interest in remainder which is contingent and not assessable until it vests in possession. Without assenting to the legal accuracy of these propositions it is apparent that they are, in the main, purely speculative and founded upon some future action that may be taken by the United Hebrew Charities, with which we are not concerned. As to the claim that the estate consists of an interest in remainder which is contingent and therefore not assessable, we find that to be without any substance. [4] We are only concerned with the situation at the death of the testatrix. The estate is a vested one. It vested in the United Hebrew Charities at the death of the testatrix. It is true that the corpus of the estate does not come into the actual possession of the United Hebrew Charities, until the prosecutors, the executors, have administered it for a period of 10 years, but that fact does not strip it of the character of a vested estate. Such an estate is required by section 2 of the act of 1909, page 326, to be appraised immediately at its clear market value and after deducting from such appraisement the value of the particular estate, etc., the tax on the remainder shall be levied and assessed immediately. The procedure pointed out by the statute was followed in the present case. We find, therefore, that the tax was properly levied and assessed. The writ will be dismissed, and the assessment affirmed. (88 N. J. Law, 466) the obstruction is a question not now preSYMONS. CHOSEN FREEHOLDERS OF sented. WARREN. The judgment must be reversed, to the end (Supreme Court of New Jersey. March 6, 1916.) that there may be a new trial. (88 N. J. Law, 51) STATE v. BREWSTER. SAME v. SCOTT. Where defendant chosen freeholders in repairing a culvert across a highway protected the unfinished work by barricades of planks, and (Supreme Court of New Jersey. March 6, 1916.) plaintiff, traveling in the night, collided with the barricade and was injured, the erection of such barricade was not an obstruction of the highway, constituting an active wrong, for which defendants were liable, such guarding of the excavation being only what is ordinarily and necessarily done in highway repair work. [Ed. Note.-For other cases, see Highways, Cent. Dig. 88 480, 483-485; Dec. Dig. 192.1 Appeal from Court of Common Pleas, Warren County. Action by Edwin Symons against Chosen Freeholders of Warren. Judgment for plaintiff, and defendant appeals. Reversed. Argued November term, 1915, before the CHIEF JUSTICE, and SWAYZE and BERGEN, JJ. John H. Dahlke, of Belvidere, for appellant. Harlan Besson, of Hoboken, for appellee. (Syllabus by the Court.) Comp. St. 1910, pp. 2239, 2240), conferring upon [Ed. Note.-For other cases, see States, Cent. Dig. § 42; Dec. Dig. 34.] Error to Court of Sessions, Mercer County. George M. Brewster and another were conwrit of subpoena, and bring error. Reversed, victed of refusing to obey a summons and and new trial awarded. See, also, 87 N. J. Law, 75, 93 Atl. 189. Argued November term, 1915, before GUMMERE, C. J., and SWAYZE and BERGEN, JJ. William B. Mackay, Jr., of Hackensack, and Gilbert Collins, of Jersey City, for plaintiffs in error. Martin P. Devlin, of Trenton, for the State. SWAYZE, J. The defendant undertook to repair a small culvert across the highway. It is conceded that it is a bridge within the meaning of the statute and the decisions in McKinley v. Chosen Freeholders of Union, 29 N. J. Eq. 164, and Whitall v. Freeholders of Gloucester, 40 N. J. Law, 302. The repairs consisted of replacing the old concrete cover of the culvert with a new one. The workmen placed planks across the highway as a guard on each side of the culvert. There was evidence from which it might be inferred that the obstruction was not lighted at night. The highway was a country road where there was little travel. The plaintiff, traveling the highway in the darkness, collided with the planks and was injured. It is not claimed that the failure to light was a neglect to erect, rebuild, or repair the bridge for which a right of action is given by the act of 1860 (1 C. S. 1910, p. 304, pl. 9). The plaintiff rested his case upon the theory that the obstruction of the highway by planks was active wrongdoing, for which the defendants were liable under the rule of Hart v. Free-it. holders of Union, 57 N. J. Law, 90, 29 Atl, 490, and Kehoe v. Rutherford, 74 N. J. Law, 659, 65 Atl. 1046, 122 Am. St. Rep. 411, and the judge submitted the case to the jury on that theory. With this view we cannot agree. So far from its being wrong to guard the new work until the culvert was in condition to use, we think it was only what is ordinarily and necessarily done when a highway or bridge is repaired. Freeholders v. Hough, 55 N. J. Law, 628, 28 Atl. 86. Whether or not the plaintiff has a right of action against any one for failure to light BERGEN, J. The above-named defendants were separately indicted, but, as the same questions were involved, they were tried together, and were argued in like manner in this court. The indictments charge the defendants with refusing to obey a “summons and writ of subpoena" alleged to have been issued by the joint appropriation committee of the Legislature of the state of New Jersey for the year 1914, commanding them to appear before said joint committee to testify in a matter then under investigation by That the summons or the subpoena was served on the defendants does not appear to be disputed. The defendants were convicted in the court of quarter sessions of Mercer county and have appealed from the judgments entered thereon. The first point made by the appellants is that there was no joint appropriations committee of the Legislature of the state for the year 1914, as charged in the indictment. If by this it is intended that the rules of the two Houses of the Legislature do not provide for a joint committee on appropriations, the claim made by the defendants is correct; but this is not sufficient, under the facts | committee as a whole; but, aside from this, shown in this proceeding, to require a re- the chairman had no power to order the isversal of these judgments. The facts show suing of a summons for the attendance of that each House has a committee on appro- witnesses unless he was authorized to do so priations, and that they do not meet and by the action of the committee. The peract separately; but, on the contrary, they sons whom the committee are entitled to meet and act as a joint committee. The res- subpoena are such which the pursuit of the olution authorizing the investigation provid-investigation "shall necessitate," and that is ed "that the joint appropriations committee a quasi judicial function to be exercised by of the Legislature for the year 1914 be and the committee and not by the chairman; they are hereby authorized and empowered otherwise, if each member of the committee to make investigations" of the financial need of certain departments of the state therein named, and to report to the next session of the Legislature. This, we think, was the appointment of the persons constituting the two committees acting jointly as a special committee to make the investigation, and constituted the committees of the two Houses as the committee to make the investigation. exercised his own judgment, persons might be summoned to attend to testify to matters which the pursuit of the investigation, in the judgment of every other member of the committee, might not be necessary as not being within the matters which the committee deemed they were authorized to investigate. The power to require witnesses to neglect their business and to come from all parts of the state to Trenton to testify is very great, The next point is that the plaintiffs in and should only be exercised within the error were not compellable to attend at Tren- lines laid down by the statute, which plainly ton on the day named in the summons, be-limits the exercise of that power to the comcause: (a) No place of meeting was ever mittee as a whole, and it is not delegated by designated by the committee; (b) the com- the Legislature to the chairman or any other mittee never authorized the issuing of sum- member of the committee, and this seems to mons to the plaintiffs in error. The powers be a wise limitation; but, whether wise or of a committee of this character is to be not, the Legislature has so ordained. found in sections 63 and 64 of the act en- The trial court was requested to charge, titled "An act concerning evidence (Revision "There is no evidence that any such comof 1900)." C. S. vol. 2, pp. 2217, 2239. Sec-mittee ever authorized the issuance of subtion 63 provides that any joint committee of pœna or summons to either defendant," and the Legislature, or any standing committee also, "The paper writings served on the reof either House, or any special committee spective defendants were beyond the authorwhich shall have been, by resolution, direct-ity of the statute, and the defendants were ed to enter upon any investigation or in- not bound to respond thereto.". Both of quiry, the pursuit of which shall require the examination of witnesses, shall have power to "summon before them such persons as they may deem necessary and proper, to testify in the matter under investigation." Section 64 provides that any such committee shall have power to compel the attendance before them "of such person or persons as they may deem necessary and proper, to testify in the matter under investigation." This statute clearly shows that the power to summon witnesses is given alone to the committee, and not to any member thereof acting alone. In other words, the statute intends that the persons deemed necessary and proper to testify in the matter under investigation shall be determined by the judgment of the committee, and not that each member of the committee shall alone determine the necessity for the attendance of a particular 1. STREET RAILROADS 462-FRANCHISEperson to testify. The evidence in this case is undisputed that the meeting of the com- The acceptance by a street railway committee, which these defendants were sub-pany incorporated under the laws of this state poenaed to attend, was not held on a day fix- the route of its road and the location of its of an ordinance of a municipality establishing ed by the committee, but on a day fixed by tracks imposes upon the company the duty to the chairman of the committee, and this, we construct, maintain, and operate such railway think, was irregular because the powers dele in accordance with the terms of the ordinance, and in compliance with statutes which confer gated by the Legislature were not given to a upon the company such rights, privileges, and single member of the committee, but to the franchises. An implied condition attaches it these requests were refused, and in this we were not For this error, the judgment in each of the above-stated causes will be reversed, and new trial awarded. (88 N. J. Law, 485) HAMILTON TP. IN MERCER COUNTY v. MERCER COUNTY TRACTION CO. et al. (Supreme Court of New Jersey. April 4, 1916.) (Syllabus by the Court.) ACCEPTANCE - CONSTRUCTION AND OPERA TION. self to the grant of the franchise that it is held when the municipality has always insisted, and [Ed. Note. For other cases, see Street Railroads, Dec. Dig. 462.] TION PANY. CONSTRUC AND MAINTENANCE-DUTY OF COM [Ed. Note.-For other cases, see Street Rail-corporated under the laws of this state stopThe fact that a street railway company inroads, Dec. Dig. 462.] ped work on its road for four weeks consecutive 2. MANDAMUS 132-SUBJECTS OF RELIEF-Îy after being notified by the municipality to ACTS OF PRIVATE CORPORATIONS. proceed furnishes no excuse why the road should not be completed, even though the ordinance of the municipality establishing its route and the location of its tracks provides that, if the company stops work before completion for four per-weeks consecutively after notice to proceed has been given, then the permission to lay the tracks "shall be null and void," when it appears that the municipality has always insisted, and still insists, upon the completion of the road. Mandamus will lie to compel a street railway company to construct, maintain, and operate its road for the benefit of the public, if a legal duty to do so is imposed by law, and there is a clear violation of such duty, unless formance is for some reason impossible. [Ed. Note.-For other cases, see Mandamus, Cent. Dig. §§ 266, 267; Dec. Dig. 132.] 3. STREET RAILROADS 49-CONSTRUCTION AND MAINTENANCE-LEASE OF RIGHTS. A street railway company incorporated under the laws of this state which takes over by lease the rights, privileges, and franchises of another such street railway company by that act assumes the correlative duties and obligations of the franchise, and upon it rests the same burden and duty to construct, maintain, and operate such street railway under the statutes and the ordinances of the municipality as were imposed upon the original company. [Ed. Note.-For other cases, see Street Railroads, Cent. Dig. §§ 125, 126; Dec. Dig. 49.] 4. STREET RAILROADS 461⁄2 CONSTRUCTION AND MAINTENANCE-FRANCHISE-AC CEPTANCE. A street railway company incorporated under the laws of this state that accepts in writing, within the time and in the manner required by the statute, an ordinance of a municipality establishing the route of its road and the location of its tracks, and enters upon the construction of its road, is under a duty to complete and operate such road, even though it has failed to file with the municipal clerk a contract covenanting "to abide by and perform all the matters and things in the ordinance contained," as required by the terms of such ordinance; and at the instance of the municipality a mandamus will issue to compel the perform ance of such duty. [Ed. Note. For other cases, see Street Railroads, Dec. Dig. 46.] Rule by the Township of Hamilton in the County of Mercer to show cause why writ of mandamus should not issue against the MerRule made absolute, and writ of perempcer County Traction Company and others. tory mandamus awarded. Argued November term, 1915, before GARRISON, TRENCHARD, and BLACK, JJ. Alvin W. Sykes and Linton_Satterthwait, both of Trenton, for relator. George W. Macpherson and W. Holt Apgar, both of Trenton, and Frank Bergen, of Newark, for respondents. TRENCHARD, J. This is a rule to show cause why a writ of mandamus should not issue commanding the respondents forthwith to complete the construction of a street railway from the westerly terminus thereof (in the village of Yardville) to the village of North Crosswicks, on the line thereof, and thence to the easterly terminus thereof, within a reasonable time, and to operate the same in accordance with the provisions of an ordinance of the township of Hamilton passCONSTRUC-ed February 7, 1906. [Ed. Note. For other cases, see Street Railroads, Dec. Dig. 461⁄2.) 5. STREET RAILROADS 461⁄2 -- TION AND MAINTENANCE-FRANCHISE. In the absence of any tender of a surrender of the franchise, the fact that the located route of a street railway in a highway is laid across the tracks of a steam railroad which cross such highway, and that the right to cross such tracks at grade has not been obtained, furnishes no excuse why the street railway should not be completed and operated upon its route through the highways of the municipality lying on either side of such steam railroad. [Ed. Note. For other cases, see Street Railroads, Dec. Dig. 461⁄2.] 6. STREET RAILROADS 461⁄2 CONSTRUCTION AND MAINTENANCE DUTY OF COM PANY. The facts are as follows: The respondent the Mercer County Traction Company, a street railway company incorporated under the laws of this state, asked for, procured, and accepted the ordinance in question. The ordinance granted to the company permission to construct, maintain, and operate a street railway in, upon, and along highways of the township of Hamilton, and established the route of its road and the location of its tracks between the termini above mentioned. The ordinance was passed as a substitute for other ordinances passed by the township granting to the same company permission to construct and operate a street railway over a line which included the line in question, which ordinances were surrendered, and such surrender accepted by the relator. When a street railway company incorporated under the laws of this state has failed to complete the construction of its road within the time limited by the ordinance of the municipality establishing its route and the location of its tracks, which it duly accepted, the company is not excused from performance by the fact that the municipality has failed to act upon a proposed ordinance submitted by the company During the existence and under the authorindefinitely extending the time for completion, ity of one or more of such surrendered ordi |