(74 N. J. L. 330)

REEVES et al. v. JONES. (Supreme Court of New Jersey. April 5, 1907.) 1. JUSTICES OF THE PEACE-CERTIORARI-OBJECTIONS NOT RAISED BELOW.

Where, at a trial before the small cause court, the justice dismissed the action as to one of two defendants because there was no return of service upon the defendant by the constable, the plaintiffs will not be heard on certiorari to question the validity of such ruling, on the ground that defendant had appeared by asking an adjournment; it appearing that no objection was made to the ruling at the time by the plaintiffs or their counsel who was present. [Ed. Note. For cases in point, see Cent. Dig. vol. 31, Justices of the Peace, § 776.]

2. CERTIORARI-LACIES.

No question of laches is involved upon the issuance of a writ of certiorari at any time during the period prescribed by the statute.

[Ed. Note. For cases in point, see Cent. Dig. vol. 9, Certiorari, § 59.]

(Syllabus by the Court.)

Certiorari by M. William Reeves and J. Lewis Lane against Samuel Jones to review a judgment of a small cause court. Affirmed. Argued November term, 1906, before HENDRICKSON, ARD, JJ.

SWAYZE, and TRENCH

Berry & Wriggins, for prosecutors. Townsend Godfrey, for defendant.

HENDRICKSON, J. This is a certiorari which has been brought to a hearing before a single justice of the Supreme Court, pursuant to section 5 of the certiorari act, approved April 8, 1903 (P. L. p. 344; Motts' Practice Act, p. 135). The writ in this case is directed to a small cause court to bring up the judgment, order, or proceedings in the suit for review. The record returned shows that the prosecutors on April 18, 1905, brought suit against Samuel Jones and Mary C. Jones jointly, in an action on contract to recover a sum claimed to be due for professional services rendered as physicians. The particular error complained of, and sought to be reviewed, is the action of the justice below, at the trial, in dismissing the suit as to Samuel Jones, on the ground that the return upon the summons showed no service on the latter. The transcript shows no actual judgment entered against the prosecutors after such order of dismissal for costs or otherwise. The question has not been raised by the defendant as to whether certiorari will lie to bring up such an order, and whether it will or not, is not considered or determined in this proceeding.

It is contended for the defendant, however, that the writ in this case should be dismissed as having been improvidently granted, on the ground of laches; it appearing that the prosecutors waited nearly 18 months after the action complained of before bringing their writ. But it appears they did bring their writ before the expiration of 18 months, which is the time limited by section 3 of the certiorari act. This being so, the ground of

66 A.-8

laches must fail. It has been held that no question of laches is involved upon the issuance of a writ of certiorari at any time during the period prescribed by the statute. Graff v. Smolensky, 35 Ill. App. 264; 4 Enc. of Pl. & Pr. 137b.

The prosecutors urge, as ground of reversal of the order of dismissal, that, in point of fact, although the return upon the summons was defective in the respect named. the defendant, Samuel Jones, appeared, with Mary C. Jones, the other defendant, on the return day, and asked and obtained an adjournment of the cause for two weeks, and upon the adjourned day appeared again and asked and obtained a further adjournment, thereby submitting himself to the jurisdiction of the court and curing the defect complained of, citing Honeyman on Small Cause Courts (Ed. 1901) p. 514, with cases cited. But it is contended for the defendant that the action of the court below should not now be reversed on the ground alleged, because the same was not brought to the attention of the justice at the trial, and no objection was raised by the plaintiffs or their attorney, who was present. to the motion to dismiss. An inspection of the transcript of the justice shows these allegations to be true. This disclosure is fatal to a reversal on the ground named. The principle is well settled that questions not raised below, or alleged erroneous action as to which no objection was made, cannot be presented to or considered by the reviewing court. 6 Cyc. 821. The same principle finds support in the decisions of our courts. In Cole & Taylor v. Cliver, 44 N. J. Law, 212, it was held by the Court of Errors that objections to the sufficiency of the proof of a plea of privilege must be made at the trial, or they will be regarded as having been waiv. ed. This principle is further illustrated in Shangnuole v. Ohl, 58 N. J. Law, 557, 34 Atl. 755; Jaques v. Hulit, 16 N. J. Law, 38; Steward v. Sears, 36 N. J. Law, 173.

My conclusion is, therefore, that the order of dismissal cannot be reversed on the ground stated. And since no other ground of reversal is shown in the reasons or in the brief of counsel of the prosecutors, the order and proceedings below must be affirmed, with costs.

(74 N. J. L. 439) LIPPINCOTT v. LIPPINCOTT, Tax Collector, et al. (Supreme Court of New Jersey. March 27, 1907.)

1. TAXATION-NATIONAL BANK STOCK. The owners of national bank stock are to be taxed thereon at its true value. [Ed. Note.-For cases in point, see Cent. Dig. vol. 45, Taxation, §§ 646, 647.] 2. SAME-VALUATION.

In ascertaining the true value of the shares of such stock for the purpose of taxation, the act approved May 11, 1905 (P. L. p. 457) does not require that the nontaxable property of the banks should be deducted from their assets.

3. SAME DEDUCTIONS AND EXEMPTIONS.

The only effect of that act is to allow an individual taxpayer to claim the same deductions and exemptions as against the assessment of his shares of national bank stock as he might against the assessment of his other personal property.

(Syllabus by the Court.)

Certiorari by Heulings Lippincott against Isaac Lippincott and others to review an assessment for taxes. Assessment confirmed.

Argued November term, 1906, before HENDRICKSON, SWAYZE, and TRENCHARD,

JJ.

French & Richards, for prosecutor. Joseph Kaighn and Daniel V. Summerill, Jr., for defendants.

TRENCHARD, J. This writ of certiorari brings up for review an assessment of taxes made by the township of Chester, in the county of Burlington, against the prosecutor, Heulings Lippincott, for 216 shares of stock of the National State Bank of Camden, at $67.50 per share, making a value of $14,580. The taxes were assessed for the year 1905. On May 20, 1905, the bank had as capital stock, surplus, and undivided profits $529,348.99. Of this it had real estate $85,685; stocks and bonds $96,850; mortgages $3,500; and United States bonds and premiums $108,875. In ascertaining the value of prosecutor's shares, the assessor deducted from the assets of the bank the assessed valuation of the real property of the bank, and made no other deduction or exemption therefrom. It is conceded that the stocks, bonds, mortgages, and United States bonds and premiums in which the capital stock, surplus, and undivided profits were invested are nontaxable in the hands of individuals. If, in making the assessment, the stockholder was entitled to have the assessor deduct the nontaxable securities in which the assets of the bank were invested, the assessment was erroneous and excessive; if, on the contrary, he was not entitled to have such securities deducted, the assessment was right. The sole question therefore is whether the holder of shares of bank stock is entitled to have the assessor, when he values the shares, deduct from the assets, in addition to the assessed valuation of the real property of the bank, the value of the nontaxable securities held by the bank as a part of its assets.

It has been held by the Supreme Court of the United States that national bank shares are liable, under the acts of Congress, to state taxation, although the entire capital of the bank is invested in United States bonds; that bank shares represent proprie tary interests distinct from that of the capital stock. People v. Commissioners, 4 Wall. 244, 18 L. Ed. 344; Lionberger v. Rowse, 9 Wall. 468, 19 L. Ed. 721; Mercantile Bank v. New York, 121 U. S. 138, 7 Sup. Ct. 826, 30 L. Ed. 895. In Evansville Bank v. Britton, 105 U. S. 322, 26 L. Ed. 1053, it was held

that, under certain limitations, national bank shares are taxable with exclusive reference to their value, and without regard to the nature of the property held by the bank as a corporation. In our own state it was held that owners of national bank stock were to be taxed thereon at its true value, and that, in ascertaining the true value of such shares for the purpose of taxation, our then existing laws (the tax act of 1869 [P. L. 1149] and the bank act of 1899 [P. L. p. 431]) did not require that nontaxable property of banks should be deducted from their assets. Mechanics' Nat. Bank v. Baker, 65 N. J. Law, 113, 46 Atl. 586, affirmed 65 N. J. Law, 549, 48 Atl. 582. But the prosecutor in this case contends that the reduction claimed is allowed by an act of the Legislature entitled "A supplement to an act entitled 'An act for the assessment and collection of taxes,' approved April eighth, one thousand nine hundred and three," approved May 11, 1905 (P. L. p. 457) which provides as follows: "Section 1. In assessing the shares of stock of banks or banking associations organized under the laws of this State or of the United States, the assessor shall allow all the deductions and exemptions granted by law from the value of other taxable property owned by individuals in this State, and the assessment and taxation of such shares of stock shall not be at a greater rate than is made or assessed upon other moneyed capital in the hands of individuals in this State. In making such assessment, the assessed valuation of the real property of such bank or banking association shall be deducted from the total valuation of the shares of stock assessed against the stockholders." Upon an examination, we find that the act above recited is in effect the same as the New York act of July 1, 1882; the chief difference being in the use of the word "exemptions" in our act, instead of the word "exceptions" used in the New York statute. The New York act was construed by the United States Supreme Court in Mercantile Bank v. New York, 121 U. S. 138, 7 Sup. Ct. 826, 30 L. Ed. 895. In that case the court held that, under the New York statute, the owners of national bank stock were not entitled to claim any deduction from the assessed value of their shares on account of United States securities owned by the bank. The conclusion there announced and the reasoning by which it is supported we regard as decisive of the present case. It will be observed that the language of our act is not apt language, if the intent was to allow the valuation of the bank stock to be reduced by deducting from the assets of the bank such securities as were exempt from taxation. The word "deductions" is not an apt word for such purpose. It is true the word "exemptions" is not an appropriate word in the view we take of the act; but, in matters of taxation, we must incline in favor of sustaining the tax, and he who sets up an exemption must be required to establish it.

Cooper Hospital v. Camden, 70 N. J. Law, 478, 57 Atl. 260. It will also be observed that the act of 1905 provides that, "in making such assessment, the assessed valuation of the real property of such bank or banking association shall be deducted from the total valuation of the shares of stock assessed against the stockholders." If the Legislature had intended that there should also be "deducted from the total valuation of the shares of stock assessed against the stockholders" the nontaxable securities held by the bank, it would, we presume, have said so in appropriate language. The fact that the act authorizes the deduction of real estate in making the assessment is an indication that nothing but real estate is to be deducted upon the principle that the expression of one thing excludes the other. The Constitution of our state requires that property shall be assessed at its true value, and shares of bank stock would not be assessed at their true value if the contention of the prosecutor prevails. In order, therefore, to sustain the legislation in question as constitutional, we are obliged to construe it as not allowing the deduction of the securities in which the assets of the bank were invested.

It is contended by the prosecutor, in view of the language of the act of 1905 that "the assessment and taxation of such shares of stock shall not be at a greater rate than is made or assessed upon other moneyed capital in the hands of individuals in this state," that the assessment under review is illegal, because it is alleged the tax act of 1903 provides for a less rate of assessment for trust companies than is imposed on shares of national banks. The Supreme Court of the United States, in construing section 5219 of the Revised Statutes of the United States [U. S. Comp. St. 1901, p. 3502], which contains a provision similar to that in our act, held that the "other moneyed capital" intended by this legislation is such capital as, in its use, comes into competition with the business of the national banks. Aberdeen Bank v. Chehalis, 166 U. S. 440, 17 Sup. Ct. 629, 41 L. Ed. 1069; Mercantile Bank v. New York, 121 U. S. 138, 7 Sup. Ct. 826, 30 L. Ed. 895. We know of no reason why the language of our act should not receive the same construction as was given the same words in the act of Congress, for it is evident that the words were inserted in our statute in order that it might be in harmony with the federal statute. The tax act of 1903 (P. L. p. 394) provides for the taxation of every trust company "upon the full amount of its capital stock paid in and accumulated surplus." The act concerning trust companies (P. L. 1899, p. 450) which was under consideration in Mechanics' Nat. Bank v. Baker, 65 N. J. Law, 549, 48 Atl. 582, and in Fidelity Trust Co. v. Vogt, 66 N. J. Law, 86, 48 Atl. 580, provides for the taxation of every trust company "upon the amount of its capital stock issued and outstanding," and it was held

both by this court and by the Court of Errors and Appeals that this meant that the assessment should be upon the full amount of the capital stock issued and outstanding, and that it should be assessed at its true value. In that view, as was said by Chancellor Magie, in Mechanics' Nat. Bank v. Baker, 65 N. J. Law, 549, 553, 48 Atl. 582, the assessment and imposition upon them is exactly equivalent to that upon shares of national bank stock.

We do not think that the change in the act of 1903 suffices to overcome this construction. If, however, the act of 1903 was intended to change the law as declared in Mechanics' Nat. Bank v. Baker and Fidelity Trust Co. v. Vogt, supra, the act was unavailing for that purpose, for the reason that it would, as was said by the Court of Errors and Appeals in Mechanics' Nat. Bank v. Baker, supra, be rendered invalid by the constitutional provision requiring assessment at true value. It does not appear in the present case that trust companies of this state have any assets invested in United States bonds to which the rule adopted in Van Allen v. Assessors, 3 Wall. (U. S.) 573, 18 L. Ed. 229 would be applicable; nor does it appear that the capital invested in trust companies is in fact assessed at a lower rate than is assessed upon the shares of national banks. Mercantile Bank v. New York, supra; Covington v. First Nat. Bank, 198 U. S. 100, 25 Sup. Ct. 562, 49 L. Ed. 963. We think, therefore, that the contention of the prosecutor cannot prevail. Our conclusion necessarily is that the only effect of our act of 1905 is to allow an individual taxpayer to claim the same deductions and exemptions as against the assessment of his shares of national bank stock as he might against the assessment of his other personal property.

The result is that the assessment under review should be confirmed, with costs.

(74 N. H. 188)

CLARK et al. v. TOWN OF MIDDLETON. (Supreme Court of New Hampshire. Strafford. March 5, 1907.)

1. TAXATION-UNEQUAL ASSESSMENT-VALU

ATION.

Where plaintiffs sought an abatement of taxes, alleging that the valuation of their property was not in proportion to the valuation of other property, and proved that the market value of plaintiffs' property, appraised at $5,000, was $2.000, but did not show the valuation of any other property or that the valuation of plaintiffs' property was disproportionate to the valuation of other property, plaintiffs' petition should have been dismissed.

2. SAME-APPRAISAL.

Under express provisions of Pub. St. 1901, c. 58, § 1, it is the duty of the selectmen of a town to appraise all property therein for taxation at its fair market value. 3. SAME-PRESUMPTIONS.

Where, in a proceeding for abatement of taxes, plaintiffs alleged that their property was assessed at 21⁄2 times its value, and proved by direct evidence that all other property in the town, as to which there was evidence, was appraised at the same rate, they were not entitled

to the presumption that the assessing officers had performed their duty in assessing at the fair market value, as required by Pub. St. 1901, c. 58, § 1, in order to show a disproportionate assessment.

4. TRIAL OBJECTIONS-WAIVER.

The rule that an objection which may be cured at the time by further evidence or action is waived unless the ground of the objection is specifically stated applies to a motion to dismiss where the ground of the motion could have been obviated at the time if the objection had been known.

5. APPEAL-REVERSAL-JURISDICTION

REMAND.

AFTER

Where an order for abatement of taxes on plaintiffs' petition was reversed on exceptions and the cause remanded because of failure of proof, the trial court after remand had power to reopen the case and afford plaintiffs an opportunity to produce missing evidence.

Transferred from Superior Court, Strafford County; Stone, Judge.

Petition by Charles E. Clark and another against the town of Middleton for abatement of taxes. A decree was rendered in favor of plaintiffs after the denial of defendant's motion to dismiss the petition, and the case was thereupon transferred to the Supreme Court for hearing of defendant's exceptions. Case discharged.

George E. Cochrane and James A. Edgerly, for plaintiffs. John Kivel and George T. Hughes, for defendants.

PARSONS, C. J. The plaintiffs alleged as the ground upon which they asked an abatement of the tax assessed against them that the valuation of their property upon which the tax was assessed was not in proportion to the valuation of other property. Upon competent evidence, at the trial it was found that the fair market value of the plaintiffs' property, appraised at $5,000, was $2,000; but there was no evidence of the valuation of any other property, or that the valuation of $5,000 placed by the selectmen upon the plaintiffs' property was disproportionate to the valuation placed by them upon other property. There was therefore a failure of direct evidence tending to establish a point made essential by the pleadings, and which was material as matter of law. Winnipiseogee, etc., Co. v. Laconia, 74 N. H. 82, 65 Atl. 378; Amoskeag Mfg. Co. v. Manchester, 70 N. H. 200, 46 Atl. 470. The decree for the plaintiffs appears to have been based on the assumption, or finding, that other property in the town was appraised at its fair market value. In the absence of direct evidence upon this point, the decree cannot be sustained; and the motion to dismiss should have been granted unless there are facts in evidence from which such inference could properly be made. It was the duty of the selectmen to appraise all property at its fair market value. Pub. St. 1901, c. 58, § 1. If there is a presumption that public officers have performed their duty sufficient in the absence of any evidence to sustain the burden of proof in favor of one relying upon the regularity and validity of

their proceedings (Cross v. Brown, 41 N. H. 283, 289), such presumption will not aid the plaintiffs here, because they have by direct evidence established that all the property in Middleton, as to the appraisal of which there was evidence, was appraised at 21⁄2 times its value.

The appraisal of other property has heretofore become material in tax abatement cases upon the claim of the plaintiffs that such property was appraised at less than its value. In this case the plaintiffs appear to concede that such property was not appraised at less than its value. The question, therefore, is not material unless it is claimed by the defendants that the other property in the town, as well as that of the plaintiffs, was appraised in excess of its fair market value. It does not appear that the defendants, in making their motion to dismiss, made such claim, or stated the ground upon which they relied. It is a general rule that an objection which may be cured at the time by further evidence or action is waived unless the ground of the objection is specifically stated. Blodgett v. Webster, 24 N. H. 91; Whitehouse v. Bickford, 29 N. H. 471, 481; Ossipee Mfg. Co. v. Canney, 54 N. H. 295, 314, 315; Hayward v. Bath, 38 N. H. 179, 183; Haines v. Insurance Co., 59 N. H. 199; Edgerly v. Railroad, 67 N. H. 312, 317, 36 Atl. 558; Emery v. Railroad, 67 N. H. 434, 435, 36 Atl. 367; Matthews v. Clough, 70 N. H. 600, 602, 49 Atl. 637; Wheeler v. Railway, 70 N. H. 607, 615, 50 Atl. 103, 54 L. R. A. 955. The principle has been applied in the cases cited to exceptions to evidence and to instructions to the jury; but it applies equally upon a motion to dismiss, where the ground of the motion could readily have been obviated at the time if the objection had been made known. Baldwin v. Wentworth, 67 N. H. 408, 36 Atl. 365; Elwell v. Roper, 72 N. H. 585, 587, 58 Atl. 507. Upon the plaintiffs' concession that other property was appraised at its full value, and the absence of claim that it was appraised at a higher rate, it may have been inferred that such was conceded to be the fact. Such conclusion may have been amply justified by the course of the trial, and, if well founded, would support the decree. If it were clear that the objection now insisted upon was not taken at the trial, the exception would be overruled; but, although the ground of the motion to dismiss is not expressly stated, the character of the findings has some tendency to show that the question now raised may have been presented at the trial. Justice, therefore, requires that the case should be discharged for judgment for the plaintiffs according to the decree, unless the defendants at the trial based their motion to dismiss upon the ground that the property in the town other than the plaintiffs' was appraised in excess of its true value. If this was the defendants' contention at the trial, the motion should be granted on the evidence re

ported. Should the plaintiffs ask to reopen the case and for an opportunity to introduce evidence as to the appraisal of other property, the superior court has power to grant such request should justice require. Case discharged. All concurred.

(74 N. H. 207)

GLIDDEN v. TOWN OF NEWPORT. (Supreme Court of New Hampshire. Sullivan. March 5, 1907.)

1. TAXATION-LIABILITY OF PROPERTY-MONEY AT INTEREST.

Pub. St. 1901, c. 55, § 7. cl. 5, subjects to taxation money at interest, including money loaned on any mortgage, obligation, note, or other security. Plaintiff advanced money to the purchasers of real estate under a bond from the owner, under an arrangement whereby the land was deeded to plaintiff, on an understanding that he would convey to the purchasers under the bond, on the payment to him of the amount advanced and interest, and plaintiff gave a bond binding himself to convey, and those to whom the bond was given gave no note, but promised to pay plaintiff the amount advanced. Held, that the transaction amounted to a mortgage, and plaintiff was properly taxed on the amount advanced by him.

Where plaintiff gave a bond to convey certain real estate to the obligees on repayment to plaintiff of moneys advanced by him, and thereafter he petitioned a town for abatement of a tax imposed on the sums advanced, if the provision of the bond did not amount to a promise by the obligees to pay the money and interest, as between plaintiff and the town parol evidence was admissible to show such a promise. 3. TAXATION PROPERTY SUBJECT TO TAXMORTGAGED REAL ESTATE.

Pub. St. 1901, c. 56, § 14, provides that real estate shall be taxed to the person claiming the same, or to the person who is in possession and actual occupancy, if such person will consent to be taxed. Chapter 55, § 7, cl. 5, imposes a tax on money at interest, including money loaned on any mortgage. Held, that where land was conveyed to one to secure an advancement, and he gave a bond for reconveyance, the transaction amounting to a mortgage, the real estate was properly taxed to him, notwithstanding that he was taxed for the amount of his advancement.

Exceptions from Superior Court, Sullivan County; Wallace, Judge.

Petition by Emery J. Glidden against the town of Newport for the abatement of taxes. Petition dismissed, and plaintiff brings exceptions. Exceptions overruled.

In November, 1903, Edson W. and Julius E. Harvey were in possession of a farm in Newport under a bond for a deed from one Fletcher. Fletcher was pressing them for the payment of $1,350 due upon the bond, and they applied to the plaintiff for a loan of the money. The plaintiff agreed to loan them the money, he to have a deed of the farm and to give them a bond conditioned that he would convey the farm to them upon the payment of the $1,350 and interest. November 25, 1903, the plaintiff took a deed of the farm from Fletcher, paid him $1,350, and gave a bond to the Harveys, binding himself, his heirs, executors and administrators, in the

sum of $5,000, as follows: "Whereas, the above bounden Emery J. Glidden has this day agreed to sell to the said Edson W. Harvey and Julius E. Harvey the following described tract of land [describing it], on condition that the said obligees shall pay the sum of thirteen hundred and fifty dollars in manner following, to wit, by yearly payments of fifty dollars, the first of said payments to be paid on or before the 25th day of November, 1903, and annual interest on the principal to be paid on or before the 25th day of November of each year: Now, the condition of this obligation is such that if the said Edson W. Harvey and Julius E. Harvey shall pay the said sum of thirteen hundred and fifty dollars and interest in manner above described, and shall in the meantime pay all taxes on said premises, keep the buildings reasonably insured for the benefit of the said Emery J. Glidden as his interest shall appear *

and the said Emery J. Glidden shall on the completion of the said payments and interest, and the performance of the other agreements and covenants by the said obligees to be performed, make, execute, and deliver, or cause to be made, executed, and delivered a good and sufficient warranty deed to the said obligees of said premises, and the said obligees shall carry on the said farm in a husbandlike manner and shall keep the buildings on said premises in reasonable repair, then this obligation shall be null and void, otherwise to remain in full force and virtue." In December, 1904, one Thatcher requested the plaintiff to loan him $500 with which to purchase the Cutting farm in Newport. The plaintiff agreed to do so if Thatcher would convey the farm to him and allow him to retain two acres of it; the plaintiff to give Thatcher a bond for a deed of the remainder of the farm. Thatcher purchased and conveyed the farm to the plaintiff on December 31, 1904, for $515 paid him by the plaintiff, who at once gave Thatcher a bond binding himself, his heirs, executors, and administrators in the penal sum of $1,000 to convey said remainder to Thatcher upon the payment of $500 and interest, etc. The condition of the bond is substantially like that of the Harvey bond, excepting that it contains a provision by which the obligor is to allow the obligee to have full possession and control of the premises while the payments are being made. The Harveys have been in possession of the farm mentioned in their bond ever since its date. Thatcher took possession of the farm described in his bond immediately upon its execution, and he and his assigns have been in possession since. Both farms were taxed to the plaintiff in 1905-the first one at $2,000, and the last one at $500-and he or the obligees paid the taxes. Payments of principal and interest have been made and have been indorsed upon the bonds. No note or other obligation was taken by the plaintiff from the obligees. One purpose of the plaintiff in taking the papers in the form described was