No-Worry Chem. Co. v. Du-All Chem. Co.

• Decision Date: 24 February 1938
• Citation: 197 A. 364
• Parties: NO-WORRY CHEMICAL CO. v. DU-ALL CHEMICAL CO. et al.
• Court: New Jersey Circuit Court

197 A. 364

NO-WORRY CHEMICAL CO.

v. DU-ALL CHEMICAL CO. et al.

Circuit Court of New Jersey. Essex County.

Feb. 24, 1938.

Action by the No-Worry Chemical Company, a corporation of the State of New Jersey, against the Du-All Chemical Company, a corporation of the State of New Jersey, and another for damages for defendants' possession of bottles bearing plaintiff's trade-mark. On motion to strike the answer as sham. Order entered denying the motion.

Kraemer, Siegler & Siegler, of Newark, for plaintiff. Andrew B. Crummy and Francis A. Kraus, both of Newark, for defendants.

SMITH, Circuit Judge.

This comes on a motion to strike the answer filed by the defendants as sham. The answer, in turn, raises objections in points of law, stating that the complaint sets forth no cause of action and that the statute upon which the complaint is based is unconstitutional. Therefore, the sufficiency of the complaint as well as of the answer is now before the court.

The complaint is based on chapter 366 of the Laws of 1933, R.S.1937, 56:3-14 to 56: 3-34, 1:1-10, N.J.St.Annual 1933, § § 25 —43 to 25 —61, and alleges that the defendants violated the provisions of section 7 of the said act, R.S.1937, 56:3-20, N.J.St. Annual 1933, § 25-49, by having in their possession, without the written consent of the plaintiff, 380 bottles and 16 cases bearing the registered mark of the plaintiff, and thereby became indebted to the plaintiff in the sum of $1,980, being $5 per container, as provided by the statute. The answer sets forth a general denial in addition to objections in point of law.

The affidavits in support of the answer allege an oral agreement with the plaintiff for the exchange of bottles and cases, and further state that the defendants stand ready to deliver to the plaintiff said bottles and cases in their possession pursuant to such agreement.

It is contended by the defendants that the act is unconstitutional because the title does not set forth the object of the act, contrary to article 4, section 7, paragraph 4, of the New Jersey Constitution, which provides that every law shall embrace but one object, and that shall be expressed in the title. The act in question, P.L.1933, p. 995, was entitled "An Act concerning bottles, barrels, half-barrels [and other types of containers and vessels enumerated in the title.]" The point attempted to be made by the defendants is that the word "concerning" does not indicate the object, but merely designates the subject of the legislation; that the purpose of the act, the scheme intended by the Legislature, is not expressed in the title. The general rule is that the title must express the subject matter generally, together with an indication of the legislation respecting it. Mortland v. Christian, 52 N.J.L. 521, 20 A. 673. However, in Sawter v. Shoenthal, 83 N.J.L. 499, 83 A. 1004, the rule is given that the validity of the title is not to be determined by nice distinctions of etymology or definition of words, but by the facts of the case and the history of the legislation. Bearing in mind previous legislation on the subject, it appears clear that the title of the act gave notice to all those interested in the subject that the Legislature, under the act, would deal with the whole subject of bottles, cases, and similar containers enumerated in the title.

In State v. Haight, Receiver, 36 N.J.L. 54, "An act relating to taxes to be paid," etc., P.L.1870, p. 1168, was held not in violation of the constitutional provision herein discussed.

In Rader v. Township Committee of Union, 39 N.J.L. 509, the statute in question was entitled "An act in relation to streets in Union township, in Union county." P.L. 1871, p. 1500. Under this act, certain provisions were also made for parks. Chief Justice Beasley, holding that the act was invalid in so far as it attempted to make provisions for parks, held that the rest of the act was constitutional. He stated:

"The object of legislation is described to be streets in Union township, and in the body of the act, power is given to construct a sewer and make public parks."

Chief Justice Beasley then concluded that the legislation pertaining to sewers, under that act, was constitutional, because sewers may be said to be comprehended in a description purporting to relate to streets, but that the legislation concerning parks was outside the scope of the title.

It will be noted that the Chief...