DEASY, J. Bill of interpleader. The sum | reached the hospital the following morning of $2,000 being the amount of a beneficiary George A. Martin, Jr., had died. certificate issued by the complainant corporation to George A. Martin, Jr., deceased, has been paid into the clerk of courts for the county of Penobscot to be disposed of under direction of court.

Georgie A. Penney, daughter, and Forest L. Martin, brother, of deceased each claims the fund; the former as original, the latter as substituted beneficiary.

George A. Martin, Jr., on February 26, 1917, the day before his death, signed a formal instrument purporting to substitute the name of his brother for that of his daughter as beneficiary.

The question to be determined is whether such substitution was legally effectual.

[1] The by-laws of the corporation read themselves into and become a part of its contracts of insurance. Grand Lodge v. Edwards, 111 Me. 361, 89 Atl. 147; Grand Lodge v. Conner, 116 Me. 224, 100 Atl. 1022; Shuman v. A. O. U. W., 110 Iowa, 642, 82 N. W. 331; Grand Lodge v. Connolly, 58 N. J. Eq. 183, 43 Atl. 286; Lahey v. Lahey, 174 N. Y. 152, 62 N. E. 670, 61 L. R. A. 791, 95 Am. St. Rep. 554.

The provision of the plaintiff's by-laws relating to change of beneficiaries is as follows: "Sec. 10. A member may, at any time, when in good standing, revoke his directions as to the payment of his beneficiary certificate, and a new beneficiary certificate shall thereafter be issued, payable to such beneficiary or beneficiaries as such member may direct in accordance with these laws, upon the payment of a fee of fifty cents. Said revocation and direction must be made in the form prescribed, signed by the member in presence of and attested by the recorder of his lodge, and accompanied by the required certificate of the subordinate lodge, under its seal, shall be forwarded with the beneficiary certificate to the Grand Recorder. If it is impracticable to have said revocation and direction signed in the presence and attested by the recorder, attestation may be made by a notary public or an officer of a court of record, with

his official seal attached. When such revocation, direction and certificate, made in accordance with these laws, shall have been received by the Grand Recorder, any previous direction in regard to the payment of the benefit shall thereby be rendered null and void."

The reservation and direction in the pending case was not signed in the presence of the recorder nor in the presence of a notary or court officer.

It was signed by George A. Martin, Jr., and in his absence delivered to the recorder, who signed the attestation clause. The latter did not then forward the revocation to the Grand Lodge, but kept it, intending to see the insured, who was ill at a hospital in Bangor, ascertain if the signature were his voluntary act, and obtain his assent thereto. His as

[2] When the corporation by the voluntary direction of the assured has actually changed the beneficiary by the issuance of a new certificate in lieu of the original, such substitution is valid and effectual though the for|malities provided by the by-laws have not been observed. Delaney v. Delaney, 175 Ill. 187, 51 N. E. 966; Bowman v. Moore, 87 Cal. 306, 25 Pac. 409; Simcoke v. Grand Lodge, 84 Iowa, 383, 51 N. W. 9, 15 L. R. A. 114; Lamont v. Hotel Asso. (C. C.) 30 Fed. 817; Faubel v. Eckhart, 151 Wis. 155, 138 N. W. 615.

Several courts have also decided that a substitution is valid and effectual, though not completed by the issuance of a new certificate, if the assured has done everything in his power to effectuate it, and nothing remains to be done but some ministerial act on the part of the society. Holden v. Modern Brotherhood, 151 Iowa, 673, 132 N. W. 332; Sanborn v. Black, 67 N. H. 538, 35 Atl. 942; Eatman v. Eatman (Tex. Civ. App.) 135 S. W. 165; Luhrs v. Luhrs, 123 N. Y. 367, 25 N. E. 388, 9 L. R. A. 534, 20 Am. St. Rep. 754.

A substitution may be effectual where complete conformity by the assured to the prescribed method has been prevented by the fraudulent act of the beneficiary. Lahey v. Lahey, 174 N. Y. 146, 66 N. E. 670, 61 L. R. A. 791, 95 Am. St. Rep. 554; Marsh v. American Legion, 149 Mass. 512, 21 N. E. 1070, 4 L. R. A. 382; Supreme Conclave v. Cappella (C. C.) 41 Fed. 1.

But none of these authorities are applicable to the facts in the pending case. The substitution was not complete. No new certificate had been issued. A condition remained unperformed which the contract required the assured to perform. It required that he execute his revocation in the presence of a specified officer. This he failed to do. The completion of the substitution may have been prevented or interrupted by the illness of the member, but not by the fault of the society or the fraud of the beneficiary.

[3] The attorney for Forest L. Martin contends that the requirement of the by-laws that the revocation and direction must be in the presence of the recorder is solely for the benefit of the corporation, and that failure to conform to it is not available to any other party. While there are cases sustaining this contention, the preponderance of authority and the better reasoning is to the contrary.

A provision contained in a beneficiary certificate, prescribing that a substitution must be made in the presence of a designated official, is a material and substantial requirement, without conformity to which, or waiver by the member during his lifetime, no substitution can be legally effected. Abbott v. United Order of Pilgrim Fathers, 190 Mass.

(108 A.)

101 Pa. 118; Grand Lodge v. Connolly, 58 N. [ Company. Judgment for plaintiff (92 N. J. J. Eq. 180, 43 Atl. 286. Law, 277, 105 Atl. 459), and defendant appeals. Affirmed.

PER CURIAM. The only substantial [4] The member has the unqualified right point made on this appeal is that the rule to change the beneficiary. He also has the laid down in the Supreme Court, and supright to determine how, when he can no lon-ported by cases cited in the opinion below, ger speak, the fact of the change shall be as

For purposes of the applicability of section Action by Minnie Hahn against the Dela- 2 it is immaterial whether the contract of emware, Lackawanna & & Western Railroad ployment was made by the minor directly, or

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

by the parent directly, or by the minor as agent [ cases and perhaps in the present case, leave of the parent.

Appeal from Supreme Court.

Action by Helen Hartman, an infant, against the Unexcelled Manufacturing Company and others. Complaint stricken out, and final judgment entered for defendants, and plaintiff appeals. Affirmed.

Charles E. S. Simpson, of Jersey City, for appellant.

Isidor Kalisch, of Newark, for respondents.

the infant practically remediless, because the compensation payments might run out before majority, the parent would get those accruing before majority, leaving the injured child with a disfigured body and impaired health and without any damages for the wrong done. We need not stop to discuss proposition 3 above, but proceed directly to No. 5.

[1, 2] The answer to this argument ab inconvenienti is that it is not true; for so far as concerns loss of wages at least it is the parent who loses the common-law right of recovery, and not the child; or, to put it PARKER, J. The plaintiff below, an in- more accurately, the weekly compensation fant of 18 years of age, was employed by the based on wages is intended as compensation defendants, or one of them, as a worker in a to the injured employé and his dependents fireworks factory, and was injured while so for all elements of damage. The act proworking by an explosion in the factory. She vides for no suit by a parent for compensabrought suit for damages at common law, tion per quod; and we held at the last term alleging negligence and her complaint was that the parent could not recover at common struck out and judgment final entered for law. Buonfiglio v. R. Neumann & Co., 107 defendants on the fundamental ground that Atl. 285. The result is that the parent is as the accident was one arising out of and barred entirely of recovery per quod unless in the course of her employment, and there he or she takes the statutory method of rehad been no notice or agreement to bring jecting the elective compensation scheme, or the employment under section 1 of the Work-receives notice from the employer, as in Brost men's Compensation Act (P. L. 1911, p. 134), v. Whitall-Tatum Co., 89 N. J. Law, 531, 99 her sole remedy was for compensation under Atl. 315, L. R. A. 1917D, 71, a suit at common section 2 of the act. This action of the court law by the employé. Whether or not the conbelow is the gravamen of the appeal.

The case in its general features is substan-tract of employment is made, or contemplated tially identical with Young v. Sterling Leath- by the statute as made, by the infant herer Works, 91 N. J. Law, 289, 102 Atl. 395, and but for the serious attempt made by counsel to avoid the effect of the decision in that case by a different line of argument, it would be useless to extend the present opinion.

The steps in the argument now made seem to be these:

(1) At common law the parent could hire out the minor child and take his wages. (2) Such contract could be made through the child as the parent's agent.

(3) The compensation act created such an agency by operation of law whenever the infant sought and secured employment.

(4) At common law, if in such a situation the child were injured by the master's negligence, two causes of action would arise, one by the parent for expenses and loss of wages until the child's majority; the other by the child for damages on account of physical injury, etc., and prospective loss of wages after majority.

(5) To bar this second action by application of the Compensation Act would, in many

self, or as agent for the parent, or directly by the parent, is quite immaterial. If there is a valid employment of an infant over 14 years (see Hetzel v. Wasson Piston Ring Co., S9 N. J. Law, 201, 98 Atl. 306, L. R. A. 1917D, 75), and no agreement or notice to make sec-. tion 2 inoperative, then in case of injury the whole theory of the act is that the compensa. tion shall be paid to, and sued for by, the employé, or dependents, or benficiaries. These are the words of the statute itself. Nowhere therein is a parent, qua parent, recognized as entitled to any of the prescribed compensation.

Such being the case, the alleged injustice of confining the infant employé to recovery under the act disappears.

The balancing of considerations touching amount of compensation, on the one hand, and the right to it without regard to questions of negligence, on the other, is a legislative matter several times alluded to by us, and needs no further discussion here. The judgment will be affirmed.

(108 A.)

(91 N. J. Eq. 72)

In re ROEBLING'S ESTATE.

GUMMERE, C. J. The appeal in this case was taken from a decree of the Ordinary setting aside pro tanto the assessment of a

(Court of Errors and Appeals of New Jersey. transfer tax laid by the comptroller of the Nov. 18, 1919.)

state treasury upon the estate of Ferdinand W. Roebling, deceased, who, at the time of 1. TAXATION 860-CONSTRUCTION OF STAT- his death in March, 1917, was a resident of

UTE IMPOSING TRANSFER TAX.

Act April 20, 1909 (P. L. p. 325), held to impose a tax upon the transfer of the estates of decedents, and not merely to regulate the procedure to be followed in the settlement of such estates; such procedure being a matter cognizable by the Ordinary, irrespective of the statute.

2. CONSTITUTIONAL LAW

56-JURISDICTION OF SUPREME COURT TO REVIEW TAX ASSESS

MENTS CANNOT BE IMPAIRED.

The Legislature cannot by the exercise of its power to create statutory agencies as tribunals to review the action of taxing authorities destroy the right of review resting in the Supreme Court in matters of taxation, by designating as such agency a court of superior jurisdiction whose judgments or decrees rendered in the performance of its ordinary judicial functions are ordinarily reviewable only by appeal to the Court of Errors and Appeals.

3. TAXATION 900(1)-REVIEW OF TRANSFER TAX ASSESSMENT BY CERTIORARI.

An appeal to the Court of Errors and Appeals will not lie from decree of Ordinary setting aside pro tanto assessment of transfer tax under Act April 20, 1909 (P. L. p. 325, §§ 1 and 18); such assessment being reviewable in Supreme Court by certiorari only, notwithstanding section 20, making assessment primarily reviewable by the Ordinary, whose orders and decrees are ordinarily reviewable only by an appeal to the Court of Errors and Appeals.

4. COURTS 90(1)-ACTION IN COURT OF ERRORS AND APPEALS NOT PRECEDENT ON QUESTION NOT RAISED.

Action of Court of Errors and Appeals in reviewing orders of Ordinary passing on validity of transfer tax assessments on appeals from such orders is no controlling precedent upon question of court's jurisdiction to entertain such appeal, where question of jurisdiction was neither mooted on the argument nor considered by the court.

the state.

Our act to tax the transfer of property of resident and nonresident decedents (Pamph. Laws 1909, p. 325), after enacting in section 1 that a tax should be imposed upon the transfer of any property real or personal of resident and nonresident decedents in certain cases, provides in section 18 that the Comptroller of the treasury shall assess and fix the cash value of the property of persons whose estates shall be liable to the payment of the tax, and levy the tax to which the same is liable. The section then provides that any person or corporation dissatisfied with the appraisement or assessment may appeal to the Ordinary of this state, and the twentieth section vests the Ordinary with jurisdiction to hear and determine all questions in relation to any tax so levied.

In the present case, the comptroller of the treasury having assessed and levied a transfer tax upon the Roebling estate, the parties interested therein appealed to the Ordinary, who, as has been already stated, reduced the tax so assessed and levied. The state comptroller thereupon took this appeal from the decree of the Ordinary, and the question to be determined is whether an appeal will lie directly to this court.

[1] That the legislative purpose exhibited by the statute is to provide the imposition of a tax upon the transfer of the estates of decedents, and not merely to regulate the procedure to be followed in the settlement of such estates, a matter cognizable by the Ordinary irrespective of the statute (as was suggested by counsel at the argument), we have no doubt. Mr. Cooley, in his work on Taxation, accurately defines "taxes" as the enforced proportional contribution of persons and property, levied by the authority of the state, for the support of government, and for all public needs. The present impost comes within the definiIn the matter of the transfer inheritance tion. It is an enforced contribution; it is tax assessed by the State Comptroller on the levied for the use of the state; and it imestate of Ferdinand W. Roebling, deceased. poses a common burden upon all of the class From a decree of the Ordinary (104 Atl. 295) of persons embraced in the statutory scheme setting aside pro tanto the assessment of a-i. e., all transferees of the estates of detransfer tax laid by the Comptroller of the cedents. But a discussion of this point seems State Treasury, the State Comptroller aphardly necessary. The Constitution of the peals. On motion to dismiss appeal. Mo-state requires the Legislature to express in tion granted. the title of every statute the object of the enactment, and the object expressed in the present statute is "to tax the transfer of property of resident and nonresident decedents."

Appeal from Prerogative Court.

John R. Hardin, of Newark, for appellant. Scott Scammell and Charles Besore, both of Trenton, and Herbert Noble, of New York City, for respondent.

[2] In the case of Dufford v. Decue, 31 N.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

J. Law, 302, the Supreme Court, in an opinion by Beasley, C. J., after pointing out that the power to review the action of statutory agencies created for the purpose of assess ing and levying taxes was vested in the Supreme Court by the Constitution held that the court could not be deprived of that power by legislative enactment, or compelled to share it with any other tribunal. In the later case of Flanagan v. Plainfield, 44 N. J. Law, 118, 124, it is said that, although the Legislature cannot deprive the court of this power, it may create statutory agencies as tribunals to review the action of taxing authorities, for the reason that the action of these reviewing agencies may in turn be passed upon by the Supreme Court under its certiorari power, and that in doing so this tribunal necessarily considers the validity of the original assessment and levy. It is, of course, conceded that in providing such intermediate tribunal it is open to the Legislature either to create an agency for the purpose or, in its wisdom, to select an existing agency, either administrative or judicial, and vest in it the power of original review. But it cannot, by the exercise of this power, destroy the right of review resting in the Supreme Court in matters of taxation by designating as such agency a court of superior jurisdiction whose judgments or decrees rendered in the performance of its ordinary judicial functions are reviewable only by this court. In re Prudential Insurance Company, 82 N. J. Eq. 335, 88

Atl. 970.

[3] It seems proper to add that we find nothing in the statute of 1909 to indicate a purpose on the part of the Legislature to interfere with the power of review vested in the Supreme Court. The mere fact that it saw fit to designate the Ordinary as the agency to pass upon the action of the state comptroller in assessing and levying the tax does not suggest such a purpose, particularly in view of the failure of the Legislature to specify the method of reviewing the action of that judicial officer, and the knowledge of that body (which is to be imputed to them) that an attempt to transfer the power of review directly to this court would be in violation of one of the constitutional prerogatives of the Supreme Court.

[4] On the argument of the cause counsel

called our attention to four cases in each of which the order of the Ordinary passing on the validity of a transfer tax assessed by the state comptroller was removed by appeal directly to this court, and that order either affirmed or reversed by us, and contended that these cases by implication determined that a party aggrieved by tue order of the Ordinary was entitled to appeal directly to this court. The cases referred to are In re Vineland Historical Society, 67 N. J. Eq. 730, 63 Atl. 1119, In re Rothchild's Estate, 72 N. J. Eq. 425, 65 Atl. 1118, In re Jones' Estate, 74 N. J. Eq. 447, 70 Atl. 1101,` and Astor v. State, 75 N. J. Eq. 303, 72 Atl. 78. In the latter case there was a reversal, but no opinion was rendered by us. In the Vineland Case there was an affirmance by a divided court, and of course no opinion was delivered. In each of the other two cases there was an affirmance on the opinion below. It seems clear to us from what has been said that the question of jurisdiction was neither mooted on the argument nor considered later by the court; for it can hardly be conceived that a matter so vital as the power of the Legislature to strip the Supreme Court of one of its most important functions would have been passed over without a word indicative of the view of this court on the subject. The only explanation is that none of the astute counsel who argued these cases, and none of the members of the court as it was constituted at the time of the various arguments, perceived that the question of our jurisdiction was involved in the decisions, and that the court proceeded to the consideration of the causes without giving thought to so important a matter. In this situation we have no hesitation in declaring that our prior action provides no precedent which should be considered as controlling by us in the present case.

The case before us, involving, as it does, a matter of taxation, is reviewable by certiorari only, notwithstanding the fact that the legislative agency created for the purpose of a primary review of the action of the tax assessor is a court of record whose orders and decrees ordinarily are reviewable only by an appeal to this court.

The motion to dismiss must prevail.