Burlington County v. Martin

• Decision Date: 18 September 1942
• Docket Number: No. 51.,51.
• Citation: 28 A.2d 116,129 N.J.L. 92
• Parties: BURLINGTON COUNTY et al. v. MARTIN, State Tax Commissioner, et al.
• Court: New Jersey Supreme Court

28 A.2d 116

129 N.J.L. 92

BURLINGTON COUNTY et al.

v. MARTIN, State Tax Commissioner, et al.

No. 51.

Court of Errors and Appeals of New Jersey.

Sept. 18, 1942.

Syllabus by the Court.

The discretionary writ of mandamus will ordinarily not be awarded, when such award will create disorder or confusion.

Appeal from Supreme Court.

Proceeding by the County of Burlington and Frank A. Snover, Treasurer of the County of Burlington, relators, against J. H. Thayer Martin, State Tax Commissioner, and others, for an alternative writ of mandamus directed against respondents to require payment to the county of a proportionate share of interest collected on transfer inheritance tax assessed against the estate of a deceased resident of the county. From a judgment of the Supreme Court in favor of the respondents, 25 A.2d 17, 128 N.J.L. 203, the relators appeal.

Judgment affirmed.

Arthur T. Vanderbilt, of Newark (Harold T. Parker, of Mt. Holly, on the brief), for appellants.

William A. Moore, of Trenton, for respondents.

PARKER, Justice.

The facts are adequately stated in the opinion of the Supreme Court, ubi supra; and the meritorious question posed and answered by that court is whether by virtue of the statute of 1931 cited in the opinion below, the County of Burlington was entitled to five per cent. not only of the principal amount of the succession tax involved (which it received in July, 1936) but also to five per cent. of the interest thereon collected by way of penalty. The Supreme Court decided that question in the negative, and appellants seek a reversal of that decision.

We conclude that the judgment Under review should be affirmed. On the general merits, and particularly the construction of the statute involved, the arguments for the appellants, while forceful, are not convincing. But we consider that the meaning of the act should be regarded as settled by practical construction over a course of many years. The statute was first enacted in 1909, revised slightly in 1931, and carried into the Revision of 1937. It is not suggested that at any time during the passage of over thirty years, was any such payment made, or claim therefor submitted for judicial determination, as that now claimed. On the contrary, the settled practice has been to withhold any percentage of interest or penalty in these cases; and in such a situation, courts are disposed to accept the contemporaneous construction of a statute whose meaning is doubtful. State v. Kelsey, 44 N.J.L. 1; Commonwealth Roofing Co. v. Riccio, 81 N.J. Eq. 486, 489, 87 A. 114. Moreover, the...