Eastwood v. Russell

• Decision Date: 02 October 1911
• Citation: 81 A. 108,81 N.J.L. 672
• Parties: EASTWOOD v. RUSSELL.
• Court: New Jersey Supreme Court

81 A. 108

81 N.J.L. 672

EASTWOOD

v. RUSSELL.

Court of Errors and Appeals of New Jersey.

Oct. 2, 1911.

Error to Supreme Court.

Proceedings between George E. Russell and John H. Eastwood for an assessment of a collateral inheritance tax. Judgment imposing tax was affirmed by the Supreme Court, and John H. Eastwood brings error. Affirmed.

Lum, Tamblyn & Colyer and Frank H. Sommer, for plaintiff in error.

Edmund Wilson, Atty. Gen., for defendant in error.

VOORHEES, J. On March 24, 1908, John Eastwood, a resident of Belleville, in Essex county, died leaving a will wherein he appointed John H. Eastwood, the plaintiff in error, his executor, to whom he devised and bequeathed, with a few exceptions, his entire estate, valued at about $700,000. The estate so passing to and claimed by John H. Eastwood, a relative of the testator, but not a son or within the exempted degrees, was assessed March 15, 1909, by the surrogate of Essex county under the so-called collateral inheritance tax act of 1894 (P. L. 1894, p. 318), and the tax ascertained to be $35,435.05. The imposition of this tax was resisted by John H. Eastwood, but was affirmed by the Supreme Court. This writ of error is sued out to review that judgment. By act approved May 15, 1906 (P. L. p. 432), sections 1 and 4 of the above act of 1894 were amended. In Neilson v. Russell, 76 N. J. Law, 655, 71 Atl. 286, 19 L. R. A. (N. S.) 887, 131 Am. St. Rep. 673, this court held that the purpose of the act of 1804 was not to impose a transfer or succession tax, but legacy duties. In Dixon v. Russell, 79 N. J. Law, 490, 76 Atl. 982, we likewise held that the title of the amendment of 1906 "contains no intimation that the purpose of the statute as amended is to impose taxes upon the transfer of property which has been bequeathed by a testator," and declared the act of 1906 invalid because its object was not expressed within its title. Const, art. 4, § 7, par. 4.

It is here argued by the plaintiff in error that the amendment of 1906 (so far as concerns matters arising after its enactment) wiped out and rendered nugatory, sections 1 and 4 of the act of 1894 by substituting the act of 1906, and, the latter act having been declared unconstitutional, as above stated, there was no legislation extant at the time of the testator's death capable of sustaining the tax. The answer to this proposition is that the act of 1906, being unconstitutional, was without effect at all upon the act of 1894. Central R. R. Co. of N. J. v. State Board of Assessors, 75 N. J. Law, 786, 69 Atl. 245, is in point, where it is said: "The fact that the supplement of May 18, 1906, is void does not in our judgment operate to destroy the act itself. The supplement never had any vitality. It is as if it had never been passed, for it cannot be conceived that the Legislature intended that the whole act should fail unless the provision of the supplement could be ingrafted upon it." The contrary of this proposition is, however, insisted upon by the plaintiff in error to this extent, as set out in his brief: "An unconstitutional statute is nevertheless a statute. That, though it be judicially declared unenforceable because in conflict with the organic law, still remains an enactment of legislative intent which the courts must reckon with, and which the judicial department has no power to expunge." We are referred to the following cases as supporting this principle: Rader v. Township of Union, 39 N. J. Law, 509; Union Township, Committee of, v. Rader, 41 N. J. Law, 617; Atty. General v. Angelsea, 58 N. J. Law, 372, 33 Atl. 971; Rutgers College v. Morgan, 70 N. J. Law, 477, 57 Atl. 250; Riccio v. Hoboken, 69 N. J. Law, 664, 55 Atl. 1109, 63 L. R. A. 485; Lang v. Bayonne, 74 N. J. Law, 455, 68 Atl. 90, 15 L. R. A. (N. S.) 93, 122 Am. St. Rep. 391; Smith v. Howell, 60 N. J. Law, 384, 38 Atl. 180; Allison v. Corker, 67 N. J. Law, 601, 52 Atl. 362, 60 L. R. A. 564. The theory is that because an unconstitutional act may form the basis of an amendment which eliminates its vice, and. thereby become a valid enactment, there must be substance in the previous faulty legislation to give this result. Allison v. Corker, supra, is the leading case, holding that the judicial department proceeds with reference to unconstitutional legislation in personam, and therefore adjudged an act merely unenforceable, but still existent and capable of vitalization. It is to be noted that this case, as well as those above cited which bear upon this subject, carefully limits its scope to acts, the body of which contains the infirmity, and not to those having a faulty title. Aside, however, from this consideration, it is not perceived how an amendatory act unenforceable, if you will, because of a title defective, so as to be always and under all circumstances ineffective, can be held to have changed, or in any way modified the prior valid act upon which it was sought to be ingrafted. As above said, in it, it wrought no change; hence the original act never passed out of existence, and needed no revivifying. Therefore the effect of Dixon v. Russell was not to revive the act of 1894, but to declare that it had in no way been altered by the attempted amendment of 1906.

The dangers inhering in holding that abortive attempts to alter laws should have the effect of nullifying the law as it stood before are too evident to require any comment. It is enough to suggest that a yielding to this argument might have resulted in the abolition of the court of oyer and terminer and the county courts in 1895, when the unconstitutional acts making the county judges elective (P. L. 1895, 323, 647, 807) were declared void in Schalk v. Wrightson, 58 N. J. Law, 50, 32 Atl. 820, and in Johnson v. State, 59 N. J. Law, 271, 35 Atl. 787, Id., 59 N. J. Law, 535, 37 Atl. 949, 39 Atl. 646, 38 L. R. A. 373, and might have rendered insecure the practice in error when the Legislature attempted to provide for a review of the facts by writ of error, at first in 1890 (P. L. 1890, p. 33) declared unconstitutional in Falkner v. Dorland, 54 N. J. Law, 409, 24 Atl. 403, and in C. R. R. of N. J. v. Tunison, 55 N. J. Law, 561, 27 Atl. 929, and again in 1899 (P. L. 1899, p. 323) declared invalid in Flanigan v. Guggenheim Smelting Co., 63 N. J. Law, 647, 44 Atl. 762. Lang v. Bayonne supra is not pertinent. The learned Chief Justice in that case said: "I am unable to accept as sound doctrine * * * that an unconstitutional law is void ab initio, and affords no protection for acts done under its sanction." And proceeded to hold that it must be regarded as valid, until declared unconstitutional, as far as individual judgment and obedience thereto are involved. It must also be borne in mind that, when the judgment of a court declares what the law is, that declaration means that it has always existed as so declared. The act of 1906, being unconstitutional, by reason of its defective title, in no wise changed or affected the prior act of 1894, which latter act continued to exist as if the act of 1906 had never been passed.

But the plaintiff in error attacks the act of 1894 itself as unconstitutional, and argues that the imposed tax should be set aside. The reasoning is that the right to acquire property through acts inter vivos is a natural and unalienable right, included in the Constitution—section 1, article 1—(Brennan v. United Hatters, 73 N. J. Law, 729, 65 Atl. 165, 9 L. R. A. [N. S.] 254, 118 Am. St. Rep. 727), while the...