City of Bayonne v. Murphy & Perrett Co.

Decision Date11 June 1951
Docket NumberNo. A--134,A--134
Citation7 N.J. 298,81 A.2d 485
PartiesCITY OF BAYONNE v. MURPHY & PERRETT CO. et al.
CourtNew Jersey Supreme Court

Alfred Brenner, Bayonne, argued the cause for appellant.

Thomas J. Armstrong, Jersey City, argued the cause for respondents (Armstrong & Mullen, Jersey City, attorneys).

The opinion of the court was delivered by

BURLING, J.

This is a civil action in which both the plaintiff City of Bayonne, a municipal corporation of its State, and the defendants, motorbus operators, appeal from a judgment of the Hudson County Court. The appeals were addressed to the Appellate Division of the Superior Court and prior to hearing there were certified to us upon our own motion.

Suit was instituted below by the City of Bayonne against the 30 defendants, all motorbus operators, to recover the city's proportionate share of gross receipts taxes, together with statutory penalties, viz., $100 for each offense, for failure to file monthly statements showing the gross receipts and failure to make payment of the taxes as the same became due. The statutory authority for both taxes and penalties is hereinafter discussed. The series of events culminating in this suit appears to have had its inception during the winter of 1928. The facts were stipulated for a trial to the court without a jury, and are briefly recited here. Prior to 1928 no motor buses on the Bergen Avenue Bus Route in Jersey City, New Jersey, and particularly none operated by the defendants in the suit, did any business in the City of Bayonne. During the winter of 1928 the various operators on the Bergen Avenue route determined that buses on that route could conveniently commence their northbound trip from the northeast corner of Broadway and 54th Street in the City of Bayonne. The portion of the entire route, as so extended, lying within the City of Bayonne has been determined to be one sixty-fifth part thereof. The president and secretary of the Bergen Avenue Bus Owners Association acting on behalf of all the defendants called upon the Supervisor of Bus Transportation of the City of Bayonne to arrange for payment of the proportionate part of the 5% Gross receipts tax which would begin to be due the plaintiff city when the route became extended into that municipality. The Supervisor was in charge of the operation of all motor buses operating within the territorial bounds of the City of Bayonne. Upon learning from these officers of the Association, by means of reports of all the operators on the route in question, that the monthly tax payable to the City of Bayonne by each of the operators (i.e., those who have been named defendants in this suit) would not amount to more than 75 cents the Supervisor referred the officers of the Association to the Mayor, and after consultation between them, the Mayor and the Supervisor, they were advised by the Mayor to 'take their business to the City Clerk'. Thereupon the same Association representatives called upon the City Clerk, and after conference with him were told by him: 'What do you wish us to do; hire two additional clerks to take care of this matter. It is too small an amount for us to bother with. Continue to pay your full taxes to Jersey City and when we wish to commence to take our proportionate share we will advise you to commence payment to us.'

Thereafter, all the defendants continued to pay their full gross receipts tax to the City of Jersey City. However, in the spring of 1929, the president of the Association made a second effort on behalf of the defendants to arrange for payment of the proportionate share of the tax to the City of Bayonne. He was again granted audience by the Supervisor and the City Clerk, and again was informed the City would not accept the tax because the amount involved was too small. Thereafter and until demand was made by the City of Bayonne in June, 1948, the defendants paid the full tax to the City of Jersey City; from and after June, 1948, the defendants have paid their proportionate share of the monthly gross receipts tax to the City of Bayonne.

By the complaint in this suit, filed January 24, 1949, the plaintiff municipality sought to recover its proportionate share of the gross receipts tax from the time in 1928 or 1929 (the complaint is not specific) the defendant began operation on the Bergen Avenue Route in the City of Bayonne to the time in June, 1948, when the defendants, after demand by the city, began to pay the current proportionate share of such taxes, and also sought to recover statutory penalties for failure to file monthly statements and make monthly payment of the said taxes. The complaint was founded on R.S. 48:16--25, N.J.S.A., which reads as follows:

'Every person as herein defined, owning and operating an autobus as herein defined, in any city of this state shall, on or before the tenth day of each calendar month, file with the city treasurer of such city a statement, verified by oath, showing the gross receipts from the business of said autobus or busses during the preceding calendar month, and shall at the same time pay to the city treasurer of such city five per cent of such gross receipts as a monthly franchise tax for revenue for the use of such city; provided, that if the route over which such autobus is operated shall extend beyond the limits of such city, then such person shall include in such statement the length of the route over which said autobus is operated both within and without said city, and shall pay as said franchise tax to said city five per cent of such proportion of the gross receipts as the length of the route in the city bears to the whole length of such route.

'The sum accruing to any city under this section when paid shall be in lieu of all other franchise taxes and municipal license fees.

'Any person owning and operating an autobus or busses in any city of this state neglecting or refusing to make such monthly statement or payment at the time and as required herein shall thereby forfeit and pay for such neglect or refusal one hundred dollars for each offense, to be recoverable by action in the name of such city in any court of competent jurisdiction, and when collected paid into the city treasury. Any person who shall falsely make any oath required to be made in this section shall be guilty of perjury.'

The above statute is a portion of an act relating to jitneys, i.e., buses carrying no more than 6 passengers, as hereinafter discussed.

The defendants answered, denying that they were required to file monthly statements as alleged in the complaint, and raising Inter alia separate defenses of full payment, neglect and refusal on the part of the plaintiff to accept the taxes, and the 6 year (R.S. 2:24--1, N.J.S.A.), 2 year (R.S. 2:24--22a and b, N.J.S.A.) and 1 year (R.S. 2:24--22d, N.J.S.A.) statutes of limitations.

Pretrial conferences were held on December 21, 1949 and September 29, 1950. In the pretrial orders the plaintiff confined its complaint as to taxes to a period of 6 years next prior to the commencement of suit, and admitted that it could not recover the penalties sued for in excess of one year.

When the matter came before the trial court for hearing, as submitted on stipulation of facts, oral argument and briefs, the plaintiff sought to amend its complaint to substitute R.S. 48:4--14, N.J.S.A., and R.S. 48:4--16, N.J.S.A. for R.S. 48:16--25, N.J.S.A., supra, as the legislative authority upon which the action was founded.

R.S. 48:4--14, N.J.S.A., supra, relates to franchise tax in language almost identical to the taxing language of R.S. 48:16--25, N.J.S.A., supra, and R.S. 48:4--16, N.J.S.A., supra, relates to penalties, in language almost identical to that relating to penalties in R.S. 48:16--25, N.J.S.A., supra. R.S. 48:4--14 was amended by L.1946, c. 130, sec. 1 and L.1947, c. 230, sec. 1, N.J.S.A. These amendments related principally to the day of the month on which operating reports were required to be filed, and to an exclusion of charter and special bus operation from the provisions of the statute. These amendments do not affect the questions presented on this appeal.

The reason for the substitution appears to be that the plaintiff discovered that R.S. 48:16--25, supra, is a portion of Article 3 of Chapter 16 of the Title 48 of the Revised Statutes, N.J.S.A., and such article relates solely to 'any automobile or motor bus, commonly called jitney, with a carrying capacity of not more than six passengers' (R.S. 48:16--23, N.J.S.A.). R.S. 48:4--14 and 16 are portions of Chapter 4 of Title 48 of the Revised Statutes, N.J.S.A., which chapter relates to any automobile or motor bus carrying passengers for hire which is held out, announced or advertised to operate or run, or which is operated or run, over any street or public place in this state and indiscriminately accepts and discharges such persons as may offer themselves for transportation either at the termini or points along the way or route on which it is used or operated or may be running (R.S. 48:4--1, N.J.S.A.). The plaintiff upon the opening of the trial had admitted that if it were entitled to recover any monies by way of penalties against the defendants, it would be limited to such sums as would be due during a period of one year next after the offense committed under R.S. 2:24--22d, N.J.S.A., which is a limitation on actions brought to invoke statutory penalties.

After consideration of the motion to amend, the court allowed the motion to substitute R.S. 48:4--14, N.J.S.A., supra, (relating to the franchise tax) but denied the motion to substitute R.S. 48:4--16, N.J.S.A., supra (relating to the penalty) on the ground that such latter amendment would constitute the pleading of a new cause of action after the same had been barred by the applicable statute of limitation. (R.S. 2:24--22d, N.J.S.A., supra) The plaintiff, as above related, admitted that it was bound by this statute.

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