CONTRACTORS' BONDS-ACTION ONFEDERAL -- JOINT DEFENDANTS 1. A demurrer is an appearance in the cause, and by filing it defendant waives all objections to the jurisdiction of the court over his person. [Ed. Note.-For cases in point, see vol. 3, Cent. Dig. Appearance, §§ 27, 80.] 2. Under the express provisions of Gen. St. N. J. p. 2336, § 2, where, in an action on a bond, one of two defendant joint debtors is properly in court, plaintiff is entitled to judgment against both such joint debtors. [Ed. Note.-For cases in point, see vol. 30, Cent. Dig. Judgment, §§ 412-431.] 3. Under the federal statute of August 13, 1894 (chapter 280, 28 Stat. 278 [U. S. Comp. St. 1901, p. 2523]), entitled "An act for the protection of persons furnishing materials and labor for the construction of public buildings,' and providing that the action therein authoriz ed to be brought in the name of the United States upon a bond given by a person entering into a contract with the government for the construction of any public work shall be prosecuted only in a court authorized to require security for costs in case judgment is for defendant, a domestic corporation, by bringing an action on such a bond, impliedly authorizes the court to require security for costs in such case, and hence the court has jurisdiction of the action. Action by the United States of America, to the use of the Sayre & Fisher Company, against Richard A. Griefen and another. On demurrer of defendant United States Fidelity & Guarantee Company to the declaration. Judgment for plaintiffs on the de murrer. See 56 Atl. 120. Argued November term, 1904, before GUMMERE, C. J., and GARRISON, GARRETSON, and REED, JJ. Alan H. Strong, for demurrant. J. Kearney Rice, opposed. GUMMERE, C. J. This is an action upon a bond given by the defendant Griefen, who was the contractor building the government post office in New Brunswick, as principal, and the Fidelity & Guarantee Company as surety, to the United States, to secure to laborers and materialmen payments due them for work done or materials furnished upon the building. The commencement of the declaration recites that the summons was served upon the defendant the United States Fidelity & Guarantee Company by giving and delivering a true copy thereof to Thomas K. Johnston, deputy commissioner of banking and insurance, at the office of the commissioner of banking and insurance, at the state house in the city of Trenton, and at the same time handing him $2 for the service fee; and that it was re60 A.-33 -- turned "Not found" as to the defendant Griefen. The first ground upon which the demurrer is rested is that in an action upon a joint obligation only a joint judgment can be rendered, and that a joint judgment cannot be rendered in this case because one of the defendants - Griefen was not served with process at all, and that jurisdiction was not properly acquired over the other defendant, the Fidelity & Guarantee Company. The subject of the validity of the service of process upon the latter defendant has already undergone consideration by this court on a motion to set aside the service of the summons (U. S. v. Griefen, 70 N. J. Law, 123, 56 Atl. 120), and its legality has been upheld. We see no reason to doubt the soundness of the conclusion we then expressed. But, even were that conclusion erroneous, it would not avail the demurrant now. A demurrer is an appearance in the cause (New Jersey v. New York, 6 Pet. 323, 8 L. Ed. 414), and by filing it a defendant waives all objections to the jurisdiction of the court over his person (Ogdensburgh, etc., R. R. Co. v. The Vermont, etc., R. R. Co., 63 N. Y. 176, 181; Handy v. Insurance Co., 37 Ohio St. 366; Rowland v. Coyne, 55 Cal. 1; Thompson v. Benefit Association, 52 Mich. 522, 18 N. W. 247). One of the defendants being properly in court, the plaintiff is entitled to proceed to judgment against both the joint debtors by virtue of the provisions of section 2 of the act concerning obligations (Gen. St. p. 2336). The first ground of the demurrer is without merit. The second ground of demurrer challenges the jurisdiction of the court over the subjectmatter of the litigation. It appears from the allegations of the declaration that the bond upon which the action is brought was given in compliance with the requirements of the federal statute of August 13, 1894 (chapter 280, 28 Stat. 278 [U. S. Comp. St. 1901, p. 2523]), entitled "An act for the protection of persons furnishing materials and labor for the construction of public buildings." This statute, after enacting that any person entering into a contract with the United States for the construction of any public work shall execute a bond with sufficient sureties, conditioned to promptly make payments to any persons supplying him with labor and materials in the prosecution of such work, and empowering any person supplying labor or material on such work, who has not been paid therefor, to bring suit upon the bond in the name of the United States for his own use, provides that the action shall be prosecuted only in a court which is authorized to require proper security for costs in case judgment is for the defendant. The contention on the part of the demurrant is that this court has no power to require the Sayre & Fisher Company, for whose benefit this suit is brought, to give security for costs to the defendants, because that company, as appears on the face of the declaration, is a domestic corporation, and that, therefore, this court is not one of those in which the federal statute authorizes the bond to be prosecuted. How far the power of this court extends to compel a resident plaintiff to furnish a defendant with security for his costs appears to be an open question. That it exists, in some cases at least, is declared in the case of State Bank v. Evans, 14 N. J. Law, 298, and again in the case of Moorehouse v. Cotheal, 21 N. J. Law, 335. So far as our decisions show, however, it has never been exercised against an unwilling plaintiff in an action upon contract. But in the present case the court is not called upon to exercise the power against the plaintiff in invitum. By bringing their action here, the plaintiffs, by necessary implication, tender themselves willing to furnish proper security for costs in case judgment shall be for the defendants, provided they are directed by the court to do so. That this court is authorized to require security for costs from a plaintiff under such circumstances we do not 'doubt. The plaintiffs are entitled to judgment upon the demurrer. (72 N. J. L. 154) HOLLINGSEAD et al. v. CAMDEN & SUBURBAN RY. CO. (Supreme Court of New Jersey. April 11, 1905.) STREET RAILROADS-NEGLIGENCE-COLLISION INSTRUCTIONS. Upon the trial of an action against a traction company to recover damages for the partial destruction of a wagon with which an electric car collided, the trial judge, without objection, instructed the jury as to the duty of the motorman in terms that made the traction company an insurer against collisions under particular circumstances specified. He then refused a request for instructions to the effect that the motorman was not obliged to foresee that the driver of the wagon would leave his place of safety beside the track, and turn across the track, until he did so turn. Held, under the evidence in the case, and in view of the instructions actually given, that the refusal of this request was erroneous. (Syllabus by the Court.) Certiorari to Court of Common Pleas, Burlington County. Action by Ellwood Hollingsead and William D. Rogers against the Camden & Suburban Railway Company. Judgment for plaintiffs, and defendant brings certiorari. versed. Re Argued November term, 1904, before FORT and PITNEY, JJ. Franklin M. Levis, for plaintiff. Nelson Burr Gaskill, for defendant. PITNEY, J. This certiorari is brought to review a judgment of the common pleas in favor of the plaintiff, entered upon the verdict of a jury, upon trial of an appeal from the small-cause court. The action was brought to recover damages for the partial destruction of an ice wagon owned by the plaintiffs, with which a trolley car collided. The collision took place on Main street, in Moorestown, while the wagon was in charge of two employés of the plaintiffs, who were delivering ice to residents along the street. Immediately before the collision they were driving easterly along the southerly side of the street, quite clear of the trolley tracks; and then, having occasion to cross the street, they turned to the left, nearly at right angles, and drove across the tracks. Defendant's electric car was coming from the westward, and struck the wagon while it was upon the tracks in crossing. There was a motion to nonsuit, based solely on the ground of contributory negligence in the agents of the plaintiffs. A motion was also made to direct a verdict for the defendant, but without specifying any grounds for the motion, and so at most it raised no question beyond that raised by the motion to nonsuit. An examination of the evidence convinces us that both motions were properly denied, there being plainly disputable questions for the jury's consideration, both with respect to the negligence of defendant's motorman and with respect to the conduct of the occupants of the wagon. The remaining reasons assigned for reversal relate to the charge of the trial judge to the jury. No objection was made below to the instructions as given, the sole criticism there suggested being to the refusal of the judge to accede to the defendant's requests to charge. All the requested instructions were given with a single exception. In the refusal of this one we find substantial. error. For an understanding of the point it should be premised that testimony was introduced by the defendant (the witnesses being the motorman and a passenger who was in the car at the time) tending to show that as the car approached the wagon it was running at very moderate speed, and that the motorman gave signal of his approach by ringing the gong; that the wagon, which up to this point had been proceeding close to the rail of the trolley track, was thereupon driven from the rail towards the curb at the side of the street, and that as the motorman undertook to pass the wagon the driver turned suddenly across in front of the car; that when this turn was made the wagon was only 20 feet from the front of the car; and that with the best efforts of the motorman it was impossible to stop the car in time to avoid a collision. This evidence was strongly contradicted by the testimony on the part of the plaintiffs, but, of course, the defendant had the right to ask the jury to believe it, and to give proper effect to it if believed. On the motorman's statement, there was nothing to charge him with notice of an attempt by the driver of the wagon to cross the tracks until a point of time so late as to render it impossible to stop the car with the use of the ordinary appliances. In this juncture the trial judge instructed the jury as follows: "It is the duty of the defendant to have appliances, and a motorman who can use those appliances, and who does use them in such a way as to prevent an accident. If you believe, under these circumstances, that this car had these appliances, and that they had a motorman who did use these appliances, and that he attempted to stop, but could not stop his car by reason of the wagon turning immediately in front of him, then it is your duty to find a verdict for the defendant. But when the wagon did turn upon the track to cross it, if the car was far enough away for the motorman to stop it before it struck the plaintiffs' wagon, and the motorman did not use these appliances, and did not stop his car, then the defendant is liable in damages." This language is open to the criticism that it seems to make the traction company an insurer against collisions under the particular circumstances specified. But as no objection was made below, this criticism is not here important, except as the clauses quoted have a bearing upon the action of the trial judge in refusing defendant's request for the following instructions, viz.: "A motorman is obliged to have his car under control as he approaches a wagon beside the track, but he is not obliged to infer that the driver will leave his place of safety and turn in upon the track." To this the court's response was: "I charge you that a motorman is obliged to have his car under control as he approaches a wagon beside a track. I will not charge the latter part, but I will say that it is his duty, if the driver does leave his place of safety and turn in upon the track, to have his car under such control that he can stop his car, if it is possible to stop it, before reaching the wagon which crosses the track." The effect of this refusal was to place upon defendant's motorman the burden of foreseeing that the driver was about to turn across the track, when there was nothing to give the motorman notice of the driver's intention. If it were admissible to construe the request as negativing the proposition that the driver ought to foresee the probability that a wagon proceeding along the side of the street may turn in order to cross the tracks, the refusal might be sustained. But the request conceded the motorman's duty to foresee a reasonable probability of the wagon being turned, for it admitted that the motorman must have his car under control. The defendant at the same time prayed that the jury should be instructed, in effect, that the motorman is not obliged to provide against an actual turning of the wagon until it does turn. This, we think, was a proper instruction reasonably requested by the defendant under the circumstances, and in view of the evidence presented by the defendant and the other instructions given to the jury the denial of this request was, we think, erroneous. PER CURIAM. The record before us consists of a state of demand, transcript of shorthand notes of testimony, a motion by the defendant for direction of a verdict at the close of the case, a refusal, and the charge of the judge, all in a district court. There is no verdict, no judgment, no state of the case agreed upon or stated, no appeal. The counsel for appellant, in his brief, says "the rule to show cause should be made absolute." Rules to show cause in cases tried in the district courts cannot be brought before this court by appeal. The appeal will be dismissed. (72 N. J. L. 64) STATE v. CORRIGAN et al. (Supreme Court of New Jersey. April 8, 1905.) ELECTIONS-APPOINTMENT OF COUNTY BOARDS -VALIDITY-MISDEMEANORS-DE FACTO MEMBERS. 1. The authority conferred by the election law of April 4, 1898 (P. L. p. 237), upon the Governor of the state to appoint county boards of election, is separable from the provisions of the law respecting nominations to the Governor for such appointment, so that, if these provisions be unconstitutional, the authority would nevertheless remain. 2. The authority conferred by that law upon county boards of election to appoint district boards of registry and election is valid to this extent at least: that persons so appointed to constitute district boards become de facto members thereof, and as such are indictable for official misdemeanors created by that law. (Syllabus by the Court.) Thomas Corrigan and others were indicted for violation of the election law. Motion to quash indictment denied. Argued February term, 1905, before GARRISON, SWAYZE, and DIXON, JJ. George Berdine, Pros., and Robert H. McCarter, Atty. Gen., for the State. Alan H. Strong and Robert Adrain, for defendants. DIXON, J. This is a motion to quash an indictment found in the Middlesex oyer at the September term, A. D. 1904, and brought into this court by certiorari. The indictment charges that the defendants on November 8, 1904, were public officers, to wit, members of the district board of registry and election in the First District of the Sixth Ward of the city of New Brunswick, and that they willfully refused to hold and conduct the general election to be held in that district on the day named, whereby the duly registered voters in that district were prevented from voting at such election. Conduct of this character is by section 197 of the election law of April 4, 1898 (P. L. p. 324), declared to be a misdemeanor. In support of the motion to quash, it is insisted that the provisions of this law for the appointment of members of the county and district boards of election are unconstitutional, because they make the holding of certain political opinions or membership in certain political parties a test of eligibility for such appointments. I deem it unnecessary to decide whether our Legislature has power to require such qualification for any public office of profit or trust, since, even if it be assumed that the power is lacking, the indictment should not be quashed. The first clause of the thirteenth section of the act is as follows: "There shall be in every county a board of elections, to consist of four persons, to be appointed by the governor in July in each year, and who shall be legal voters within the counties for which they are respectively appointed." This clause is complete, and, standing alone, would be unquestionably valid in its provision for constituting a county board of elections in each county. Such boards are fundamental in the scheme which by this statute the Legislature designed for conducting the necessary elections throughout the state. If the subsequent clauses of the section, by which the Legislature sought to circumscribe the general power of appointment thus conferred on the chief executive of the state, are unconstitutional, they should be rejected, rather than be allowed to defeat the paramount purpose of the law. The courts should not infer that, if the special intent of the Legislature as to the qualifications of the members of these boards was ineffective, the entire scheme was to be rendered abortive. I think it should be held that under this act county boards of election are lawful entities, and hence capable of being constituted by de facto members. Flaucher v. Camden, 56 N. J. Law, 244, 28 Atl. 82. Such boards, even if the members were illegally appointed, are competent to perform all acts for which boards composed of persons lawfully chosen would be competent. Dugan v. Farrier, 47 N. J. Law, 383, 1 Atl. 751; s. c., 48 N. J. Law, 613, 7 Atl. 881. Hence each county board could exercise the function delegated in the fifteenth section of the statute to "appoint for each election district in the county four persons, legal voters and residents in such district, to be the board of registry and election for such district." By this clause the statute makes complete provision for district boards, and they are as essential for the execution of the legislative scheme as the county boards. Except in one contingency, and that a secondary one, the Legislature has not directed that members of the district boards should be affiliated with any political party, or have any specified political bias; and even if it had, and such a direction were invalid, the direction might be ignored on the course of reasoning above approved with regard to county boards. In any event, the district board being a lawful entity, even de facto members, while they remained in possession of the office, would be held to the same responsibility as if their title was lawful. Rex v. Borrett, 6 C. & P. 124; State v. Goss, 69 Me. 22; Kirby v. State, 57 N. J. Law, 320, 31 Atl. 213. The motion to quash should be denied, and the indictment returned to the Middlesex oyer for trial. 1. Under the "act relating to certain illegal borough governments, requiring the payment of their debts" (P. L. 1899 p. 534), and the gen eral "act for the assessment and collection of taxes" (P. L. 1903, pp. 406, 410, §§ 19, 25), where the assessor of the borough has made an assessment of taxes for the purpose of satisfy ing a judgment against the borough, and has submitted his assessment list and a duplicate thereof to the borough council, it is the duty of the council to examine and revise the assessment list and duplicate, to make such correc tions therein as may be found necessary, and to return the corrected duplicate to the assessor. 2. Performance of this duty will be enforced by mandamus. [Ed. Note.-For cases in point, see vol. 33, Cent. Dig. Mandamus, §§ 130, 131, 249; vol. 45, Cent. Dig. Taxation, §§ 911, 912.] (Syllabus by the Court.) Application by the state, on the relation of Howard M. Cooper, for writ of mandamus to the mayor and council of the borough of Cape May Point. Writ granted. Argued June term, 1904, before FORT and PITNEY, JJ. Norman Grey, for relator. PITNEY, J. This is an application for a mandamus to require Edward W. Springer, Percy L. Haldeman, and Albert B. Schellinger, the members of the common council of the borough of Cape May Point, to revise an assessment of taxes made by the assessor of the borough for the purpose of paying a judgment recovered by the relator against, the borough. Relator's judgment is founded upon a debt that was contracted by a de facto borough government organized under an unconstitutional law. Afterwards the Legislature passed the act of March 24, 1899, entitled "An act relating to certain illegal borough governments, requiring the payment of their debts." P. L. 1899, p. 534. This act has been sustained by the Court of Errors and Appeals as constitutional and efficacious for purposes limited by the scope of its title. Cooper v. Springer, 65 N. J. Law, 594, 48 Atl. 605. Pursuant to that decision, a tax assessor and a tax collector have been appointed for the borough. In a subsequent decision (Cooper v. Cape May Point, 67 N. J. Law, 437, 51 Atl. 511) this court held, in effect, that, for the purpose of effectuating the beneficial intent of the act of 1899, the respondents, being members of the last governing body of the de facto borough, are the representatives of the governmental establishment created by that act. The act makes the new borough government responsible for the obligations of the de facto government, and provides that it shall be subject to the general laws of the state relating to the government of boroughs. This refers us to the general borough act of 1897, section 45 of which (P. L. 1897, p. 307) provides that "all general laws applicable to the assessing and collection of taxes in the several townships of this state, shall apply to the assessing and collection of taxes in boroughs." By a supplement of 1878 to the general act of 1874 respecting executions (P. L. 1878, p. 182; Gen. St. p. 1421, § 34), it is provided that when any execution shall be issued against a borough, and there shall be no property belonging to the borough sufficient to satisfy the same whereon to levy, the officer authorized to execute the process shall serve a copy of it upon the assessor and collector, and the assessor shall assess the amount due upon the execution upon the property within the borough, and this tax shall be assessed and collected at the same time and in the same manner, and under the same conditions, restrictions, and regulations, as taxes for other purposes are required to be assessed in such borough, and, when collected, shall be paid over to the officer serving the process A similar provision is embodied in the new "act for the assessment and collection of taxes," approved April 8, 1903 (P. L. 1903, p. 410, § 25). This act, by its terms (P. L. 1903, p. 435, § 66), took effect December 20, 1903, and its provisions apply to proceedings on and after that date relating to taxes assessed for the year 1903. In the present case it is made to appear that a writ of execution was issued out of this court on March 9, 1903, commanding the sheriff of Cape May county to make the amount of the relator's judgment against the borough. It was served upon the assessor, and the members of the borough council were duly notified thereof. The assessor proceeded in April, 1903, to make an assessment upon all the property in the borough for the purpose of paying the execution, and submitted the same and a duplicate thereof to the council for approval and confirmation. No action has been taken by the members of the council in the matter, and the present application is for a writ that shall require them to do their duty in the premises. By section 19 of the new tax law (P. L. p. 406), the assessor is required to submit his tax list and the duplicate to the governing body of the taxing district, who are required to examine, revise, and correct the same-the assessor attending their meetings to assist them and the duplicate, with the corrections entered therein, is to be returned by them to the assessor. A similar duty of revision was imposed upon the governing bodies of boroughs and other municipalities by the supplement of April 11, 1867, to the general tax law of 1846. P. L. 1867, p. 934 (Gen. St. p. 3301, § 93). This was among the acts repealed at the time of the revision of the tax law in 1903. P. L. 1903, p. 436, § 1. Under this provision it has been held by this court that the revision and correction of the duplicate by the council or other governing body is a continuation of the work of the assessor, and is necessary to make a complete assessment. Vanderpool v. Bonnell, 49 N. J. Law, 317, 320, 321, 8 Atl. 116; Ridgefield v. Goodday, 65 N. J. Law, 153, 155, 46 Atl. 590. Upon the whole, it is plainly incumbent upon the members of the borough council, in furtherance of the design of the act of 1899, and as a necessary step in the collection from the taxpayers of the moneys due upon the relator's execution, to examine and revise the assessor's tax list and duplicate, to correct the same, if they require correction, and return the duplicate to the assessor, with the corrections, if any, entered therein. As the facts of the present case are not at all in dispute, let a peremptory mandamus be issued accordingly. |