duty will not vitiate the result, so as to com- | the length of tenure, and the inference, therepromise the public right. Brown v. Street fore, becomes reasonable, logical, and legal Lighting Dist., 70 N. J. Law, 763, 58 Atl. 339. that if the Legislature intended to disturb That principle is equally applicable here, the existing tenure, when dealing with the where the prosecutor is constituted in legal subject of the appointment and qualification effect a legislative agent for the performance of the appointees, they would have expressly of a public function intimately associated provided for it. Expressio unius exclusio alwith the exercise of the franchise by the pub-terius. This inference is emphasized by the lic. Nor can it be overlooked that the de fendant is the body charged by law with making the appointments, and that it made the appointments in 1918, and that not until practically the eve of the election of 1919, when its personnel had changed, did it attempt to undo the work it had performed in 1918, and that such action was taken in the face of opinions from two Attorneys General to the Governor of the state, advising to the contrary. fact that by the fifth section of the act the filling of vacancies is provided for, but no mention is made of the tenure of appointees; and in the seventh section provision is made for the imposition of a penalty upon a delinquent appointee "at any time within the term of two years,” clearly indicating a legislative recognition of the tenure. [5] In any event, implied repealers are not favored as a method of judicial construction, and the omission or commission in the legis [4] The main question argued is the con-lative purpose must be reasonably clear to structive repeal of a portion of the act of 1911, which provides for the appointment of the district officers for two years, known as the Geran Act (P. L. 1911, p. 276). warrant it. Hotel Corp. v. Stafford, 70 N. J. Law, page 528, 57 Atl. 145; Chew Heong v. United States, 112 U. S. page 536, 5 Sup. Ct. 255, 28 L. Ed. 770. In the present situation every reasonable intendment and logical inference bespeaks to the contrary. The result is the writ of certiorari will go, and, owing to the public exigency incident to the situation, the writ will operate as a supersedeas. (91 N. J. Eq. 303) In re COOK'S GUARDIANSHIP. (Prerogative Court of New Jersey. Aug. 12, 1919.) 1. GUARDIAN AND WARD The original election act to which the subsequent legislation was expressly supplementary was passed as a revision of previous election acts, and prescribed a tenure of one year. P. L. 1898, c. 139. The act of 1911 extended the tenure to two years upon a basis of civil service qualification. The act of 1918 provided that the terms of all previous appointees should expire on September 1st of that year, and empowered the election boards to appoint upon a basis of general fitness from volunteers, school teachers, and others, but made no express provision regarding the tenure of the appointees. The fitness of the subordinates was in legislative contemplation guaranteed by the modus operandi of the selection of the county board of election, which was based upon joint recommendations to the Governor by the Supreme which interest had accrued, commissions were Where guardians invested in securities on Court Justice and the judge of the common improperly allowed on the collection of the inpleas. This system supplanted the civil serv-terest as "income," as it was simply the return ice theory of producing the best results. Un- of the principal of the estate advanced for inder the act the prosecutor was appointed, terest. and the contention now is that, while no express repealer of the two-year term was contained in this legislation, it was repealed by implication by the reconstruction method of selection contained in the act of 1911, which eliminated the civil service method. It is observed that in the later legislation the Legislature is dealing only with the method of selection and its incidents, and it becomes manifest that no inconsistency between the two laws can thereby be predicated, based upon the length of tenure of the appointees, which does not constitute a necessary feature of the method of selection. The defendant's contention, therefore, becomes a non sequitur. King v. Smith, 91 N. J. Law, 648, 103 Atl. page 191. In no section of the later act is there any reference contained to 151-ON PURCHASE OF STOCK WITH ACCRUED INTEREST COMMISSION ON INTEREST NOT ALLOWED — "INCOME." [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Income.] 2. GUARDIAN AND WARD 151 - COMMISSIONS ALLOWED ON EXCESS OF INCOME CarRIED TO PRINCIPAL, BUT NOT AGAIN ON PRINCIPAL. Where the income received by a guardian from the ward's estate exceeded the ward's requirements, and the excess was carried to the principal of the estate, and invested, commissions were properly calculated on the income, but improperly allowed again on the excess as principal. 3. GUARDIAN AND WARD 151- COMMIS SIONS NOT ALLOWED ON ACCRUED INTEREST Under 3 Comp. St. 1910, p. 3861, § 131, stipulating the commission of guardians, where, (107 A.) when two guardians turned over the estate to The rate of commission of guardians being fixed by an order of the orphans' court, and the sum of percentage allowed by the decree confirming their account, the remedy of the ward was by appeal, either from the order or from the decree, within the six months limited by 3 Comp. St. p. 3889, § 204. 5. GUARDIAN and Ward 159 COMMISSION WITHIN STATUTORY LIMITS PRESUMABLY CORRECT IN ABSENCE OF APPEAL. Where the sum allowed guardians as commission was within the limits of 3 Comp. St. p. 3861, § 131, in the absence of a timely appeal directly attacking the amount, it must be assumed to have been arrived at by the orphans' court after due consideration. Appeal from Orphans' Court, Mercer County. In the matter of the guardianship of Charlotte Cook and others, minors. From an order refusing to open, restate, and resettle the account of Margaret P. Hewitt and Henry Palmer, guardians, in so far as it affects Charlotte Cook, Hewitt, as guardian, and the ward named, appeal. Order reversed, with directions to open the account, and to restate and resettle it. Margaret P. Hewitt, one of the guardians, petitioned the orphans' court to open and correct the account because of errors in the calculation of commissions in three several respects. The rule to show cause, granted on the petition, was discharged by an order, March 11, 1919, and from that order this appeal was taken. [1] 1. The guardians invested in securities upon which interest had accrued, and necessarily laid out amounts equal to the principal and interest. Commissions were allowed on the collection of the interest as income. Manifestly it was not income; it was simply the return of the principal of the estate advanced for interest. Metcalfe v. Colles, 43 N. J. Eq. 148, 10 Atl. 804. [2] 2. The income exceeded the requirements of the ward, and the excess was carried to the principal of the estate and invested. Commissions were calculated on the income, which was proper; but they were again allowed on the excess, as principal, which, of course, was wrong. On the argument counsel for the guardian respondent intimated misgivings, and in his brief admits that there was a duplication. That there was is so palpable that I wonder why it was not conceded in the court below, and there corrected. See, also, 106 Atl. 890. Malcolm G. Buchanan and Linton Satter-terest. thwaite, both of Trenton, for appellants. Frank S. Katzenbach, Jr., of Trenton, for respondent. [3] 3. The third overtaxation complained of was this: When the guardians turned over to their ward the estate of $144,506.34, represented by 30 different securities, there had accrued upon these securities interest aggregating $703.39, to which I have already alluded. Commission was allowed on the inThe interest never came to the hands of the guardians. When they turned over the securities to their ward, in discharge of their liability, it was not then due, and it passed with the securities as accretions, and was collected by the ward. Compensation to guardians is statutory, and is measured by their actual pains, trouble, and risk, not to exceed 5 per cent. of assets actually handled. The statute is explicit. The rate is limited to the amount of "the estate and interest or income received," not to exceed "the sum of 5 per centum on such estate and the income received by such guardian." 3 C. S. p. 3861, § 131. Treating this interest as income received by the guardians was not justified by the facts, and the allowance of commission thereon is not warranted by the statute. In Metcalfe v. Colles, supra, Flaacke's Estate (Prerog.) 64 Atl. 1024, and Pomeroy v. Mills, 37 N. J. Eq. 578, commissions were disallowed because the items, although part of the estates upon which they were appraised, never came into the hands of the accountants. BACKES, Vice Ordinary. This appeal is from an order of the orphans' court of Mercer county refusing to open, restate, and resettle the account of Margaret P. Hewitt and Henry Palmer, guardians of the above-named minor, in so far as it affects Charlotte Cook. The account was allowed and confirmed by the orphans' court February 11, 1916, and shows total net assets of $722,532.24, of which Charlotte Cook's share was $144,506.44, to which she was entitled to payment, having attained her majority on that day. In a subdivision of the account is set forth a schedule of the securities to be turned over to her, upon which there was accrued interest of $703.39, making a total of $145,209.83. A flat commission of 5 per cent. on corpus and income was allowed to the guardians, and it was left to the clerk of the court to make the calculation. The amount thus calculated, $7,260.49, was incorporated in the final account This disposes of the grounds assigned in as a discharge, leaving a net balance of $137,- the petition to the orphans' court. The order 949.34, which was paid to the ward. On Au- discharging the rule to show cause is regust 3, 1916, Charlotte Cook and her mother, I versed, with directions to open the account, For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes and to restate and resettle it accordingly. The appellants are entitled to costs. [4, 5] When the appeal was brought on for hearing, the appellants' counsel asked leave to amend the petition to open the account, to enable him to charge that the allowance of 5 per cent. commissions on corpus and income was excessive, considering the pains, trouble, and risk of the guardians. The rate was fixed by an order of the court, and the sum of the percentage allowed by the decree confirming the account. The appellants' remedy was by an appeal, either from the order or from the decree. To have granted the motion would have been, in effect, to circumvent the bar of the statute, which limits the time for taking an appeal to three months. 3 C. S. p. 3889. Besides, the commissions were not included in the account by mistake. Decrees of orphans' court on final settlement of.accounts of guardians are conclusive upon all parties, except, inter alia, for "some fraud or mistake therein" proved to the satisfaction of the court. 3 C. S. p. 3857, § 127. The sum allowed was within the limits of the statute, and, in the absence of an appeal directly attacking the amount, it must be assumed to have been arrived at by the court below after due consideration. Johnson v. Eicke, 12 N. J. Law, 316. Two cases-Culver v. Brown, 16 N. J. Eq. 533, and Jackson v. Reynolds, 39 N. J. Eq. 313-were cited as supporting the appellants' contention. Upon examination it will be found that the accounts were opened for mistake in exceeding the rate of compensation fixed by the statute. (93 N. J. Law, 317) HESTON et al. v. ATLANTIC CITY et al. (Supreme Court of New Jersey. Aug. 6, 1919.) 1. MUNICIPAL CORPORATIONS 887 - CONTINGENT FUND MAY BE USED IN PAYMENT OF AUDITORS OF CITY BOOKS. Despite Act March 28, 1917 (P. L. p. 548), where there was in the contingent fund of city sufficient money to pay accountants who were to audit the city's books, such fund could be utilized, in the absence of specific appropriaresulting from resolution of commissioners, as tion, to liquidate indebtedness to accountants required by statute, selecting accountants as auditors of books at specified compensation. 2. MUNICIPAL CORPORATIONS 236—AUDITING CITY BOOKS NOT CONTRACT FOR "WORK" TO BE LET TO LOWEST BIDDER. the award of a contract for the doing of work or Act April 1, 1912 (P. L. p. 593), prohibiting furnishing of any material or labor in excess of $500 except to the lowest responsible bidder after public advertisement, does not invalidate resolution of commissioners of a city selecting auditors of city's books for a year, as required by statute, at a compensation of $1,175, such services not constituting "work, materials, or labor." Certiorari by Alfred M. Heston and others against Atlantic City and others to remove a resolution of the commissioners of the city. Resolution affirmed. Argued February term, 1919, before PARKER and MINTURN, JJ. Clarence L. Cole, of Atlantic City, for prosecutors. Harry B. Wootton and Joseph B. Perksie, both of Atlantic City, for defendants. In Cook's Guardians (Prerog.) 105 Atl. 792, I had before me an appeal from the decree of the orphans' court allowing commissions on the corpus of the remaining four minors named in the title hereof. The accounts were filed in September, 1917, and were final as to Mr. Palmer; he having then resigned. In view of what was there said, that the estates were managed as a unit, and that the same scrupulous care and attention was given to each (this applied to Charlotte's), and MINTURN, J. [1] The commissioners of the fact that the corpus of Ruth's estate, the Atlantic City on July 18, 1918, adopted a administration of which was then drawing resolution selecting as auditors of the books to a close, was taxed at the rate of 3 per of that city for the year beginning September cent., although the guardians served a year | 1, 1917, Edward P. Moxey & Co. at a compenand a half longer, it is indeed difficult to un-sation of $1,175, payable at the completion derstand upon what theory Charlotte's estate of the audit. The resolution was adopted was charged 5 per cent. The record brought up by that appeal is, of course, not before me, but the report of the case indicates excessiveness of commissions in the present case, if those there allowed were fair and just. However, the appellants, apparently, did not feel themselves aggrieved until long after the time had elapsed for taking an appeal, and as the allowance, if excessive, was judicial error reviewable by appeal only, and not a mistake correctable as such in the court below or here, they must be held to be concluded. in pursuance of the requirement of the stat- The pros (107 A.) certiorari should not issue to test the legal-["on the completion of such audit," which in ity of the resolution upon two grounds: fact happened after September 1, 1918, at First, that there was no fund on hand and which time a specific appropriation for the no appropriation from which payment for purpose was in existence, and the necessity the service could be made; secondly, that the of resorting to the contingent fund was therecontract price was in excess of $500, and by obviated. that bids were not advertised for in compli- The cases of Atlantic City Water Works v. ance with the requirement of the act of Read, 50 N. J. Law, 665, 15 Atl. 10, and Hal1912 (P. L. 1912, p. 593). Omitting consider- stead v. State, 41 N. J. Law, 552, 32 Am. ation of the objection of laches, which has Rep. 247, relied upon by the prosecutor, may been interposed (but which is not without be differentiated by observing that in the merit in public transactions of this character, case at bar the duty to audit and publish where the proceedings are public, and the the result was mandatory, and that the local service contracted for the result of a legis- body was simply a legislative instrumentality lative mandate, eliminating municipal dis- in its execution, while in the case cited cretion as to its necessity), we think that, the work undertaken by the municipal body since there was on hand in the contingent in each instance was entirely of a discrefund sufficient moneys to pay the accountants tionary character, and in no wise imperative at the completion of their services, that fund could be utilized, in the absence of a specific appropriation for the purpose, in liquidating the contract indebtedness resulting from the passage of the resolution in question. A contingent fund in its inception was the method of setting aside income received during the fiscal year and not otherwise appropriated, and retaining it until specifically appropriated at the beginning of the next fiscal year. The act of 1917, c. 192, entitled "An act concerning municipal and county finances," while it gave the fund legislative recognition in municipal appropriations, operated simply to impose a limitation upon the quantum of the fund when utilized as a fiscal subdivision for municipal and county appropriations. as a delegated legislative duty; the one involved a plain duty and absolute compliance, to enforce which mandamus would lie; the other involved only the untrammeled exercise of free will and discretion, in no wise enforceable as a public duty by judicial process. Warmolts v. Keegan, 69 N. J. Law, 186, 54 Atl. 813. [2, 3] It is finally contended that the expenditure, being in excess of $500, was prohibited by chapter 342, P. L. 1912, unless awarded to the lowest responsible bidder, after public advertisement. The act provides that a contract involving such an expenditure "for the doing of any work, or for the furnishing of any material or labor," unless so awarded, shall be invalid. The contention thus resolves itself into the inquiry whether services of the character in question are comprehended by the legislative designation "work," "materials,” and “labor." for the Court of Errors and Appeals, held that under the act of 1909, p. 92, official advertising in a newspaper was not comprehended in the legislative provision requiring the furnishing of labor, work, or materials to the county upon advertisement to the lowest bidder. We are not concerned, however, in this controversy with the modus operandi by which the fund was replenished. It is enough to know that it existed, and was sufficiently replete to meet the requirements of this contract when the compensation was In Delker v. Freeholders, 90 N. J. Law, payable. Nor is it necessary to determine 476, 101 Atl. 370, the chancellor, speaking that such a fund may be utilized for every obligation not otherwise provided for. Such a contention presents obvious difficulties, not the least of which is the barrier erected by the statute of 1876, hereinafter referred to. It is enough for the purposes of this discussion to determine that, since the legislative requirement of publication of the financial status of the city was mandatory and imperative in character, the absence of a specific appropriation could not operate to defeat its execution, otherwise a well-defined legislative policy, presumably devised for the information of the citizen, as a basis for intelligent consideration in the direction of municipal affairs, could be effectually thwarted and subverted by studied inactivity, by a It is unnecessary, however, to invoke the body possessing the peculiar threefold func- reasoning of either case as ratio decidendi tion of appropriating, legislating, and dis- here; for as we apprehend the services to be bursing under a legislative conception of rendered under this resolution were of a concentrated responsibility. The learned chancellor refers to Trenton v. Shaw, 49 N. J. Law, 638, 10 Atl. 273, where the charter of Trenton required that all contracts for work or materials should be given to the lowest bidder, as a result of which the same court held that the supplying of rubber hose to the fire department was not an improvement within the legislative designation. character involving peculiar professional It is also to be observed that the passage educational and experience, which invariably of the resolution required no immediate have differentiated their possessor in the infinancial outlay, but that payment was to be dustrial, economic, and social environment of life, from one possessed only of the capacity to furnish work and labor, as those terms are commonly accepted. Such services are comparable in character with the special services of counsel, the employment of a physician, or like expert service in the discharge of municipal administrative requirements; and while generically all such persons are engaged in work and labor, the ordinary mind, untrammeled by the niceties of phraseology and etymology, would find it difficult, even in the present liberal segregations of economic life, to change the acquired meaning that custom and time has accorded these words. In this light it was that the Legislature in 1912 dealt with the subject, and we are primarily engaged in a search for the legislative intent as evinced by the language employed to indicate it. In such an inquiry we must assume that the Legislature intended to employ language in its ordinary popular and usual acceptance. Gibbons v. Ogden, 8 N. J. Law, 288; McLorinan v. Overseers of the Poor of Bridgewater Tp., 49 N. J. Law, 614, 10 Atl. 187; 1 Kent's Com. 463. In this connection the maxim of interpretation and construction noscitur a sociis is not without its practical application. 3. RECEIVERS 167-WHERE CONDITIONAL against judgment creditors for lack of record, Where conditional bill of sale is invalid as It would seem that the statute now in effect in respect to conditional sales is Act May 9, 1889 (P. L. p. 421), as amended March 14, 1895 (P. L. p. 302), being 1 Gen. St. p. 891, and not section 71 of the act concerning conveyances (2 Comp. St. 1910, p. 1561). 5. CHATTEL MORTGAGES 7 RECEIVERS 77(2)-LEASE OF AUTOMOBILE HELD TO Thus we find in the act sub judice the words "the doing of any work" followed in the disjunctive by "the furnishing of any materials or labor." Such a connotation in- BE MORTGAGE. dicates the acceptance by the legislative mind of the economic, industrial, and popular understanding and use of the words "work, materials, and labor" as distinguished from the services rendered in a professional capacity by an expert accountant, who has neither work, labor, nor materials, eo nomine, to sell in market overt. Trapp v. Brown, 91 N. J. Law, 481, 104 Atl. 302; Black on Interpretation, 135; 36 Cyc. 1118, and cases. These reasons furnish the basis for our conclusion that the resolution in question must be affirmed, with costs. Where all installments have been paid on a lease providing for the rental of an automobile and for the sale of the machine to the lessee at the termination of the lease for $1, and the machine in possession of the lessee is taken by an officer at the instance of the lessor, for a lease is then executed, the aggregate amount of claim under the garage lien law, and a new rental being fixed by the amount due the lessor for repairs, etc., on other cars as well as on that leased, and an additional sum arbitrarily added by lessor, and the machine is then released to the lessee, the transaction is really that of chattel mortgage, and the instrument, not being recorded, is void as against a receiver. 6. QUÆRE. Must the words "attachment or levy," in section 5 of an act concerning conditional sales and to make uniform the law relating thereto," passed in 1919, to become effective July 4, 1919 (P. L. 461), be confined to technical attachment or levy, or may the clause be extended to any lien acquired by operation of law or judicial process, including the equitable lien acquired through the appointment of a receiver-quære? "To be officially reported." Bill by Philip Rapoport against the Rapoport Express Company. A receiver was ap pointed, and the Continental Guaranty Company, assignee of the Federal Truck Company, presented a claim, which was contested by the receiver. Judgment for the receiver. Furst & Furst, of Newark, for receiver. |