Safeway Trails, Inc. v. Furman
| Decision Date | 31 July 1962 |
| Docket Number | No. L--12425,L--12425 |
| Citation | 76 N.J.Super. 90,183 A.2d 788 |
| Parties | SAFEWAY TRAILS, INC., a corporation of the State of Maryland, Plaintiff, v. David D. FURMAN, Attorney General of the State of New Jersey and head of the Department of Law and Public Safety; Ned J. Parsekian, Acting Director, Division of Motor Vehicles and John A. Kervick, State Treasurer of New Jersey, Defendants. The GREYHOUND CORPORATION, a corporation of the State of Delaware, Plaintiff, v. John A. KERVICK, Treasurer of the State of New Jersey, and Ned J. Parsekian, Acting Director, Division of Motor Vehicles, Department of Law and Public Safety of the State of New Jersey, Defendants. LINCOLN TRANSIT CO., Inc., a corporation of the State of New Jersey, Hill Bus Co., a corporation of New Jersey, Rockland Coaches, Inc., a corporation of the State of New Jersey, Hudson Bus Transportation Co., Inc., a corporation of the State of New Jersey, Somerset Bus Co., Inc., a corporation of the State of New Jersey, DeCamp Bus Lines, a corporation of the State of New Jersey, Manhattan TransitCompany, a corporation of the State of New Jersey, and Westwood TransportationLines, Inc., a corporation of the State of New Jersey, Plaintiffs, v. Ned J. PARSEKIAN, Acting Director, Division of Motor Vehicles, Department of Law and Public Safety of the State of New Jersey, Defendant. |
| Court | New Jersey Superior Court |
Joseph Harrison, Newark (Harrison & Jacobs, Newark, attorneys) and William A. Roberts, Washington, D.C. Bar pro hac vice (Roberts & McInnis, Washington, D.C., attorneys) for plaintiff, Safeway Trails, Inc.
Merritt Lane, Jr., Newark (McCarter & English, Newark, attorneys) for plaintiff, The Greyhound Corporation.
George M. Eichler, Jersey City, for plaintiff, Lincoln Transit Co., Inc., and the seven other plaintiffs joined therewith.
Alan B. Handler, Deputy Atty. Gen., of the State of New Jersey, for defendants. (Arthur J. Sills, Atty. Gen., of the State of New Jersey, attorney).
This is a suit for a declaratory judgment with respect to the proper application of the Interstate Busses Excise Tax, R.S. 48:4--20, N.J.S.A. and for a judgment with respect to the constitutionality of that statute insofar as it may be held to apply to miles traversed by interstate busses over the New Jersey Turnpike and the Garden State Parkway. Plaintiffs seek an injunction restraining the defendants from enforcing R.S. 48:4--20, N.J.S.A. with respect to interstate mileage traveled by plaintiffs' busses on the New Jersey Turnpike and the Garden State Parkway. Plaintiffs also seek a mandatory injunction requiring the defendants to refund all sums paid by the plaintiffs under R.S. 48:4--20, N.J.S.A. on account of interstate mileage traversed on the New Jersey Turnpike and Garden State Parkway since June 1, 1960.
Plaintiffs Lincoln Transit Co., Inc., Hill Bus Co., Rockland Coaches, Inc., Hudson Bus Transportation Co., Inc., Somerset Bus Co., Inc., DeCamp Bus Lines, Manhattan Transit Company and Westwood Transportation Lines, Inc., all corporations of the State of New Jersey, instituted an action in the Superior Court of New Jersey, Appellate Division (Docket A--30--60), naming as defendant Ned J. Parsekian, Acting Director, Division of Motor Vehicles, Department of Law and Public Safety of New Jersey. Safeway Trails, Inc., a corporation of the State of Maryland, started suit in the Superior Court of New Jersey, Law Division, Essex County (Docket L--12425--60 P.W.) against David D. Furman, Attorney General of the State of New Jersey and head of the Department of Law and Public Safety, Ned J. Parsekian, Acting Director, Division of Motor Vehicles, and John A. Kervick, State Treasurer of New Jersey. The Greyhound Corporation, a corporation of the State of Delaware, instituted an action in the Superior Court of New Jersey, Chancery Division, Mercer County (Docket C--1843--60) against John A. Kervick, Treasurer of the State of New Jersey and Ned J. Parsekian, Acting Director, Division of Motor Vehicles, Department of Law and Public Safety of the State of New Jersey. These actions, in which basically the same relief was being sought, were consolidated by order of the Superior Court, Appellate Division, entered July 10, 1961 and transferred to the Superior Court, Law Division, Essex County, for trial.
All of the plaintiffs are common carriers of passengers by motor bus owning and operating autobusses which traverse the highways of this State for the purpose of carrying both interstate and intrastate passengers. By reason of their interstate operations plaintiffs are subject to and required to comply with the provisions of R.S. 48:4--18 et seq., N.J.S.A. Pursuant to R.S. 48:4--20, N.J.S.A., plaintiffs are obliged to pay the sum of one-half cent for each mile traveled by their busses over the highways of this State as part of an interstate journey. This sum is exacted as an excise for the use of the highways of this State. No excise is payable, however, for miles traveled in municipalities to which monthly franchise taxes have been paid under the provisions of N.J.S.A. 48:4--14 et seq., N.J.S.A. By virtue of the provisions of R.S. 48:4--30 and 48:4--32, N.J.S.A. refusal by plaintiffs to pay the excise will expose them to the probable revocation of their motor vehicle registrations and a penalty of five dollars for each day the tax remains unpaid after it is due.
R.S. 48:4--20, N.J.S.A. has been in effect since May 7, 1934. Its source is L.1934, c. 68. The New Jersey Turnpike was made available to the public in November 1951. Shortly thereafter plaintiffs inaugurated scheduled or charter service Via the New Jersey Turnpike. The Garden State Parkway was made available to the public in August 1954. Several of the plaintiffs have taken advantage of the facilities of the Parkway since that date. All of the plaintiffs have continuously engaged in the said services Via the Turnpike and Parkway, as the case may be, since these facilities were made available to them.
On November 14, 1950, by Formal Opinion Number 78, the Attorney General of New Jersey advised the Deputy Director of the New Jersey Division of Taxation, that interstate carriers of persons using the New Jersey Turnpike would not be subject to the tax imposed by R.S. 48:4--20, N.J.S.A. It was the Attorney General's opinion that the New Jersey Turnpike was not a highway within the meaning of the taxing statute.
On April 18, 1960 the then Attorney General of New Jersey, by Formal Opinion Number 11, advised the Acting Director of the New Jersey Division of Motor Vehicles that R.S. 48:4--20, N.J.S.A. does apply to interstate busses using the New Jersey Turnpike. This opinion, which reversed Formal Opinion Number 78 (1950), not only dealt with the question of whether or not the New Jersey Turnpike is a highway within the meaning of R.S. 48:4--20, N.J.S.A., but also with the constitutional questions which would arise out of this application of the excise tax.
Prior to July 25, 1960 the Acting Director of the Division of Motor Vehicles promulgated an order or regulation that the excise tax imposed by R.S. 48:4--20, N.J.S.A. is applicable to interstate mileage traversed over the New Jersey Turnpike. The plaintiffs were required to pay and have paid under protest since July 25, 1960, excise for the interstate miles traveled by their busses over the New Jersey Turnpike and the Garden State Parkway.
The question of whether or not the Garden State Parkway and the New Jersey Turnpike are 'highways' within the meaning and for the purpose subserved by R.S. 48:4--20, N.J.S.A. must of necessity be answered first. This is due to the fact that if this court answers the above question in the negative there would be no occasion to examine the constitutional issues which arise out of the present application of the excise tax.
R.S. 48:4--20 N.J.S.A. reads as follows:
'Every person owning or operating an autobus which is operated over any highway in this state for the purpose of carrying passengers from a point outside the state to another point outside the state, or from a point outside the state to a point within the state, or from a point within the state to a point outside the state shall pay to the commissioner of motor vehicles, as an excise for the use of such highway, one-half cent for each mile or fraction thereof such autobus shall have been operated over the highways of this state, except that no excise shall be payable for the mileage traversed in any municipality to which such owner or operator has paid a monthly franchise tax for the use of its streets under the provisions of section 48:4--14 of this title.'
The cardinal guide in the interpretation of a statute is the intention of the Legislature, and that intent so far as possible is to be derived from the language of the statute. Harvey v. Board of Chosen Freeholders of Essex County, 51 N.J.Super. 363, 144 A.2d 34 (Law Div.1958), affirmed 30 N.J. 381, 153 A.2d 10 (1959). The defendants argue that the language of R.S. 48:4--20, N.J.S.A. is clear and unambiguous and that in such a case there is no room for judicial construction. Cf. Bass v. Allen Home Imp. Co., 8 N.J. 219, 84 A.2d 720 (1951); Rosenthal v. State Employees', etc., System of N.J., 30 N.J.Super. 136, 103 A.2d 896 (App.Div.1954); Sutherland, Statutory Construction (3d ed. 1943), § 45021.
While defendants' premise is true in the ideal situation, it cannot be said to be allinclusive. The following language taken from the late Chief Justice Vanderbilt's opinion in Watt v. Mayor, etc., of Franklin, 21 N.J. 274, 277, 278, 121 A.2d 499, 500 (1956), is instructive:
'In every case involving the application of a statute, it is the function of the court to ascertain the intention of the Legislature from the plain meaning of the statute and to apply it to the facts as it finds them. Carley v. Liberty Hat Mfg. Co., 81 N.J.L. 502 507, 79 A. 447, 33 L.R.A.,N.S., 545 (E. & A. 1910). A clear...
To continue reading
Request your trial
-
Simon v. Pettit
...statement in Hale that the scope to be given the word depends upon the context in which it appears. See Safeway Trails, Inc. v. Furman, 76 N.J.Super. 90, 183 A.2d 788 (1962), rev'd, 41 N.J. 467, 197 A.2d 366 (1964) (superior court held that, in the context of a state highway-users tax statu......
-
Gallagher v. Mayor and Council of Town of Irvington
...ascribed to them." Clark v. Degnan, 163 N.J.Super. 344, 372, 394 A.2d 914 (Law Div.1978). See, also, Safeway Trails, Inc. v. Furman, 76 N.J.Super. 90, 101, 183 A.2d 788 (Law Div.1962), rev'd 41 N.J. 467, 197 A.2d 366 (1954), app. dism. and cert. den. 379 U.S. 14, 85 S.Ct. 144, 13 L.Ed.2d 84......
-
Safeway Trails, Inc. v. Furman
...to mileage traveled by interstate autobuses over the New Jersey Turnpike and Garden State Parkway. Safeway Trails, Inc. v. Furman, 76 N.J.Super. 90, 183 A.2d 788 (Law.Div.1962). The court later held that plaintiffs were not entitled to interest upon the refund of the tax monies. Safeway Tra......
-
Clark v. Degnan
...generally be deemed to have been used by the Legislature in the sense that has been ascribed to them. Safeway Trails, Inc. v. Furman, 76 N.J.Super. 90, 101, 183 A.2d 788 (Law Div.1962), rev'd 41 N.J. 467, 197 A.2d 366 (1964), app. dism. and Cert. den., 379 U.S. 14, 85 S.Ct. 144, 13 L.Ed.2d ......