* shall hold as scrutable as though all the resources of [tive appointments" (article 6, § 4); or, “Judges burnished rhetoric obtained. The highest of and registers of probate * all canons for the construction of a statute their offices for four years, commencing on the is that intention will control interpretation. first day of January next after their election" No clearer statement has been made as to the (article 6, § 7). dominating influence of intention than that which is found in Kent's Commentaries: In the exposition of a statute the intention of the lawmaker will prevail over the literal sense of the terms; and its reason and intention will prevail over the strict letter. When the words are not explicit the intention is to be collected from the context, from the occasion and necessity of the law, from the mischief felt and the remedy in view, and the intention is to be taken or presumed according to what is consonant with reason and good discretion. 1 Kent's Com. § 462. Thus far the language of the statute is virtually the same as that in the Constitution relating to tenure of office of judges of municipal courts, who "shall hold their of fices for the term of four years." Article 6, § 8. But the statute proceeds: "The present chief of police shall be eligible to appointment, * * and if appointed his term shall begin from the time this act takes effect. Vacancies in said office shall be filled for the unexpired term." of police" were appointed, and solely in such event. But the "present chief of police" was already eligible to new appointment. Reference in the act to him, as one eligible for appointment to office, signified not more than his holding of office manifested. Nor did the Legislature direct his appointment; determination of that subject is left to the option of the mayor. But the existing commission of the "present chief of police" the new statute probably would terminate. To make clear it intended no discrimination against him, in removing tenure of office from the pleasure of appointive agency, but designed only to make the term more secure than it was before, the Legislature said, in sub Cursory reading would indicate beginning Modern tendency, concerning incumbency of term as fixed in the event "present chief of public office, is toward the establishment, either by Constitution or by statute, of terms of definite duration. This idea is strongly suggested in French v. Cowan, 79 Me. 426, 10 Atl. 335. That case and Wilson v. McCarron, 112 Me. 181, 91 Atl. 839, arose under the self-same statute. Decision in the first mentioned was shaped by the rule that mandamus is not an appropriate remedy to try title to office as against one in possession under color of right. Viewing that case in the aspect of what was regarded as its merits, this court remarked that contestants each claimed the same official station under a statute which, when read in connection with the act it amended, divided the terms of office of city marshal in Lewiston into bi-stance: ennial periods, following each other, closely and continuously, from an initial starting point. But this statement, being alien from the determinative factor in the case, does not attain above dictum. More recently, in Wilson v. McCarron, supra, the court, differently interpreting statutory situation, held that the Legislature had created an office and designated length of its term, but had not undertaken to define the time when the term should begin or end, and that it had made no provision for filling vacancy. What Mr. Justice Foster said as dictum in the one case, and Mr. Justice Haley spoke in speak-find abundant support in French v. Cowan, ing the court's decision in the other, is supported by reasoning and principle, argumentatively ascribing accuracy to respective primary premise. In the present case the statute provides that, subject to removal, the chief of police "shall hold office for the term of five years." Stopping there, meaning is clear. There are no words of limitation, as in the general statute relating to tenure of certain public officers, like "and no longer, unless reappointed." R. S. c. 2, § 41. Nor is beginning of term expressly marked as in the Constitution: "When this act becomes effective, the present chief of police shall be eligible for appointment to the term which shall then begin, if the mayor shall elect to appoint him." This interpretation may not follow exact purport of the words actually used, but it gives sensible and intelligible effect to language readily lending itself thereto. The statute not only measures up to all the requirements indicated in Wilson v. McCarron, supra, as essential to the fixing of a definite term, but its interpretation would supra, were that case authoritative in citation on the query here. [2] The statute became effective July 3, 1909. That day marked starting point for the first regular term. That term continued by force of the appointment to July 3, 1914. By operation of law the incumbency of the appointee for the first regular term was prolonged, beyond the expiration of specific appointment, to November 2, 1914, awaiting coming of a successor; such appointee, without further designation, meanwhile continuing an arm of the law, holding office as a trust of the state. Bath v. Reed, 78 Me. 276, 4 Atl. 688; Bunker v. Gouldsboro, 81 Me. 188, 16 Atl. 543; Auburn v. Water Power (111 A.) Co., 90 Me. 71, 37 Atl. 335. Then plaintiff | ner. For that purpose a local improvement came; not to fill out what remained unex- is defined in the act (article 20, § 1) as "one pired of a five-year term, for the office was the cost of which, or a portion thereof, may not vacant in the sense of being destitute | be assessed upon lands in the vicinity thereof lawful occupant, though for four months of benefited thereby." A specific enumeration it was in condition that appointment thereto of such improvement is therein enumerated, might have been made; but he came to oc- among them laying out, widening, straightencupy for the second regular five-year peri-ing, extending, changing, or altering in any od, four months of which conjoined acts of the mayor and himself had caused to lapse. That lapsing they were as powerless to repair as man is to restore a day that is done. The plaintiff's term of office as chief of police in Portland expired with the 2d day of July, 1919. From that time on he is without right to salary of the office. In accordance with the stipulation of the report, judgment will be entered for the defendant. SPEAR, PHILBROOK, and DEASY, JJ., concur. manner, or grading or altering or paving or repaving or otherwise improving or reimproving any street, or curbing or recurbing, guttering or reguttering any sidewalk; and general power by ordinance is given "whenever convenient to carry on one or more of such works as one improvement." Prior to the passage of such ordinance it is provided that the notice of the pendency of the ordinance shall be mailed to every known property owner affected, "and a hearing ac corded to every person interested therein." Section 10 of article 20 of the act provides that no "local improvement" shall be under MORRILL and WILSON, JJ., concur in taken where objection thereto is filed with result. (94 N. J. Law, 505) LOGAN v. BELSFERD, City Clerk, et al. (No. 1.) the municipal clerk, in writing, by two-thirds in value of the lands proposed to be assessed for such improvements, before the final passage of the ordinance. In this situation the commissioners of the city of Beverly had be (Court of Errors and Appeals of New Jersey. fore them for introduction an ordinance pro June 18, 1920.) (Syllabus by the Court.) Municipal corporations 298, 303(1)-Ordinance for improvement passed without hearing on remonstrance invalid. "The Home Rule Act" (chapter 152, Laws 1917) provides for the filing of a remonstrance by property owners affected by a proposed local public improvement. Such a remonstrance was filed, but was not acted upon by the city commissioners, and no hearing was accorded the remonstrants, but the ordinance was passed without reference to the remonstrance. Held: (1) That the ordinance passed under such circumstances was invalid. (2) That the hearing accorded by the statute in such cases was a condition precedent to the valid exercise of the statutory power to pass the ordinance. Kalisch, J., dissenting. Appeal from Supreme Court. Proceedings by Garret D. Logan against W. Fred Belsferd, City Clerk of the city of Beverly, and others. Judgment for plaintiff, and defendants appeal. Affirmed. At viding for the construction of sidewalks and * The latter ordinance was in effect so far as title is concerned a resuscitation of an ordinance introduced at a meeting on April 22, limited in its operation to certain streets, but at the meeting of May 20 its operation was enlarged so as to cover, in the language of the title, "the streets of the city." It will be observed, therefore, that the Francis J. Smith, of Camden, for appel- ordinance introduced at the meeting of May lants. 20 was not the ordinance to which the propPalmer & Powell, of Mt. Holly, for respond- erty owners were notified to respond, but a ent. radically different measure. The ordinance, however, passed its first reading and was orMINTURN, J. Among the powers confer- dered published in the local paper, and nored upon municipalities by chapter 152 of the tice was thereby given that at the meeting of Laws of 1917, known as the "Home Rule June 3 it would be taken up for final readAct," was that of undertaking and complet- ing. At that meeting a remonstrance against ing local improvements in a specified man- its passage was filed with the commissioners, For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes signed by owners of two-thirds in value of (94 N. J. Law, 542) The ordinance was thus passed without a hearing, and this writ is invoked by an af- COLUCCI v. EDISON PORTLAND CEMENT fected property owner to vindicate his statutory right in that respect. CO. (No. 40.) (Court of Errors and Appeals of New Jersey. June 14, 1920.) (Syllabus by the Court.) Master and servant 375(1)—Death of sleep. ing employé held not an accident "arising in course of employment." It is no answer to this demand to assert that by commingling the making of a sidewalk improvement with other improvements concededly local, within the express terms of the enactment, the right of preliminary hearing may be denied to the protesting propWhere an employé during working hours erty owner. It is enough to observe that the stopped the work which he was employed to ordinance in question includes in its provi- perform, left the place where he was employed sions the making of "local improvements"; to perform it, went 100 yards away into another and we are therefore not required to pass building of his employer, deliberately lay down upon the question whether sidewalks may be to sleep, and slept for three hours, until he comprehended in such a statutory designa- was accidentally killed, held, that the accident tion. The fundamental defect in the situa- did not arise in the course of his employment, tion is of a twofold character. The ordi- within the meaning of the Workmen's Compensation Act. nance which was passed was not the measure which was introduced, and to which the prop erty owners were notified to appear, and had a right to discuss, but was a measure of a radically different character, and created new and more comprehensive obligations, and as the proceedings are statutory, and are conceived and prosecuted not upon the initiative of the property owners affected but are entirely in invitum, the statutory provisions must be subjected to a reasonably strict construction, in furtherance of the constitutional requirement of due process of law. State v. Van Geison, 15 N. J. Law, 341; State v. Jersey City, 30 N. J. Law, 93; Erie R. R. v. Paterson, 79 N. J. Law, 512, 76 Atl. 1065. The necessity for such a construction in this instance is emphasized because the method provided by statute to insure a hearing by written protest or remonstrance, and which is intended by the statute to operate as a condition precedent to the valid passage of the ordinance, was concededly discarded and ignored. [Ed. Note.-For other definitions, See Words and Phrases, First and Second Series, Course of Employment.] Appeal from Supreme Court. Proceedings by James Colucci under the Workmen's Compensation Act to obtain compensation for the death of Leo Colucci, opposed by the Edison Portland Cement Company, employer. An award was affirmed on certiorari (108 Atl. 313), and the employer appeals. Reversed. William H. Morrow, of Belvidere, for appellant. George M. Shipman, of Belvidere, for respondent. WHITE, J. This is an appeal from a judgment of the Supreme Court, affirming an award by the court of common pleas of Warren county of compensation under the Workmen's Compensation Act (P. L. 1911, p. 134) to the plaintiff for the death of his 21 year The statutory right thus conceded in such old son, Leo, upon whose wages plaintiff a situation becomes more than a mere empty was proved to be partially dependent. The form; it carries with it the substantial right essential circumstances or facts, as establishto practically effectuate the purpose of such ed by the findings of the common pleas court remonstrance by means of a public hearing, and the undisputed testimony, were as folfor as was said in Londoner v. Denver, 210 lows: U. S. 386, 28 Sup. Ct. 714, 52 L. Ed. 1103, cit- Leo, a general utility laborer in defendant's For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (111 A.) Hulley v. Moosbrugger, 88 N. J. Law, 61, 95 Atl. 1007, L. R. A. 1916C, 1203. The learned common pleas judge resolved both these questions in the affirmative, but in this respect, so far as his decision was a conclusion of law from established facts, it was subject to review in the Supreme Court, and the affirming judgment of that court is subject to review on appeal here. Bryant v. Fissell, supra; Hulley v. Moosbrugger, supra. cement works, had been at work before the employment, and, if so, was it in the course accident (in accordance with his employ- of the employment? Both must be answered ment) in shoveling away broken rock or cin- | in the affirmative to warrant the award. ders, which spilled from a conveyer belt Bryant v. Fissell, 84 N. J. Law, 72, 86 Atl. 458; moving through an inclosed tunnel. The work was very trying, because of the dust and dirt and of the heat, and it was necessary for the men so employed to go out of their respective tunnels to seek fresh air and rest for a few minutes "now and then," re-entering the tunnel and resuming the shoveling, however, "in five or ten minutes," so as to prevent an accumulation of the spillings from clogging up the tunnel and stopping the running of the conveyer belt. Leo was working on the night shift, which commenced at 6 p. m. and ended at 7 a. m. Some time between 1:34 a. m. and 2:30 a. m. he left his tunnel and went to the dryer house of his employer's plant, about 100 yards away, which house he entered and lay down upon a pile of brick and went to sleep. His time card in the company time clock was punched at 1:34 a. m., which, if he punched it, would indicate that he terminated his work for that night at that time. There was no evidence as to who punched this card, however, and the learned trial judge made no finding upon this point. At 3:45 a. m. the assistant foreman, Sabo, one of whose duties was to keep the men at their work, found Leo's conveyer clogged with an accumulation of spillings, went to look for him, found him sleeping in the dryer house, tried to awaken him, to get him to go back to his work, but was unsuccessful, and finally went himself and shoveled out the tunnel, so the conveyer could run. At about 5 a. m. Sabo again found this tunnel clogged up, and again himself shoveled it out, and then at 5:30 a. m. went over to the dryer house and asked Jim, the fireman, if Leo was still asleep in there, and was told that he was, and said, “Come on; I wake him up, and you see some fun," or words to that effect, and took a brick (one witness thought it was an iron bolt) and climbed up some outside tower stairs alongside an adjoining building, and threw the brick down on the corrugated iron roof of the dryer house, so as to make a big noise and to shake the soot and "black stuff" down on the sleeping man, in order to give him a scare. This was within a few minutes of quitting time, and Sabo did not wait and tell Leo to get back to work, but ran down the stairs and slipped away, so that Leo would not see who it was that played the joke upon him. Sabo was asked on cross-examination if his purpose was not to get Leo back to work, but answered, "Well, it was about quitting time." Unfortunately there was a rusty hole or weak spot in the roof, and the brick struck and went through it, and hit Leo in the stomach, so that he died the next day. Two questions are presented by these facts, namely: Did the accident arise out of the 1. Did the accident arise out of the employment? This would ordinarily depend upon whether what the assistant foreman, Sabo, did at 5:30 in the morning, when he ascended the stairs outside another building and threw the brick on the iron roof under which Leo was sleeping, was reasonably within the scope of his employment to keep the men at their work, or whether it was a bit of "horse play," quite outside the confines of that employment. Hulley v. Moosbrugger, supra; Mountain Ice Co. v. McNeil, 91 N. J. Law, 528, 103 Atl. 184, L. R. A. 1918E, 494. The Supreme Court seems to have taken the view that, because Sabo, as assistant foreman, was the immediate superior in authority over Leo, the doctrine of the foregoing cases does not apply. Without expressing any opinion upon this view in its application to cases where the accident occurred because the superior performed a duty which he was employed to perform in a way not reasonably contemplated by his employer, it seems to us quite clear that, where the act causing the injury was not only without the contemplated method of performance, but was also entirely outside the scope of the employment itself, the doctrine has full application, irrespective of the fact that the one who caused the injury was superior in authority within the employment to the one who was injured. We think, therefore, that if Sabo, in throwing the brick, was not doing it in order to get Leo to return to his work, but was doing it simply as what seemed an innocent joke, to scare him and to have some fun with him, quite apart from his return to work, whether before or after it was time to quit, it was in all essential respects like the "horse play" in Hulley v. Moosbrugger, supra, or the assault as a result of "horse play" in Mountain Ice Co. v. McNeil, supra. If this were all there was in the case, it might be necessary to send it back for an express finding of fact upon this point; but our view upon the second point involved renders this unnecessary. 2. Did the accident arise in the course of Leo's employment? Of course, if he deliberately stopped work and recorded himself as leaving at 1:34 a. m., as shown by the time clock, and departed about his own affairs, whether to go to sleep in his own bed at 12. Frauds, statute of 63 (4)—Interest In home, or on a pile of brick in the defendant's land may be surrendered by act or operation dryer house, or to do anything else he chose, of law. there could be no recovery, for obviously the accident did not arise in the course of the employment. But, assuming that his Under section 2 of the statute of frauds, an interest in land such as that acquired by a purchaser under written contract may be surrendered by act or operation of law. Appeal from Supreme Court. Action by Adolph Ganz and another against Samuel Elfenbein. From a judgment for plaintiffs, defendant appeals. Affirmed. John W. Ockford, of Jersey City, for appellant. Isador Haber, of Town of Union, for respondents. SWAYZE, J. Elfenbein entered into a card in the recording clock was punched through mistake or otherwise by some one else, and that what Leo actually did was not to terminate his shift hours of work, but was simply to stop his work, leave his place of work, go 100 yards away from it, and deliberately lie down to go to sleep; did the accident which caused his death three hours afterward, while he continued to sleep and without his having returned to his work, arise in the course of the employment? We think it did not. He had for the time abandoned his employment. It was not a case written agreement under seal to convey land of an accident resulting from an employé to Adolph Ganz and wife. Ganz paid $1,000 unintentionally falling asleep while perform-on account of the purchase money. When ing his work, as in Dixon v. Andrews, 91 N. J. Law, 373, 103 Atl. 410; but it was a case of an employé intentionally stopping and leaving his work and going 100 yards away and deliberately lying down and going to sleep, and remaining asleep away from his work during a period of 3 hours, during which time he was killed by the accident. It is true that Leo was probably very tired and sleepy. He had been off shift all the day preceding the night of the accident, but the night and day before that he had at his own request (he was paid by the hour) worked both the day and the night shifts in succession. But, no matter how good his reason for leaving his employment may have been, the controlling fact is that he did leave it, and that the accident to him occurred while he was deliberately away. It did not, therefore, arise in the course of his employment, within the meaning of the Workmen's Compensation Act. The judgment is reversed. (94 N. J. Law, 445) GANZ et al. v. ELFENBEIN. (No. 54.) they met to carry out the agreement a controversy arose. As a result they made a parol agreement to rescind, and Elfenbein gave Ganz his check for $1,000 as return of deposit. He stopped payment on the check, and Ganz brought this action. The complaint counts: (1) On the agreement for rescission, averring the giving of the check as a return of the deposit, and the acceptance thereof by the plaintiff; and (2) on the check. Shortly after the rescission Elfenbein sold the property to another. The defense is that the rescission amounted to a contract for the sale of an interest in land, and was not binding because there was no written memorandum to satisfy the statute of frauds. [1, 2] It is held in some cases that, where a vendee has an interest in lands under a contract of sale, that interest cannot be revested in the vendor without a writing; in other cases the question is dealt with as if it were about a mere executory contract of sale, and no interest in the land had been created. The question is an interesting one, but we are not concerned with it under the facts in this case. They bring it within the rule of Long v. Hartwell, Adm'r of Carpenter, 34 N. J. Law, 116, 124, 125. The case rests upon an actual performance of the contract by way of accord and satisfaction, as (Court of Errors and Appeals of New Jersey. Justice Van Syckel there said. The present June 14, 1920.) 1. Frauds, statute of 139(1)-Executed agreement to rescind contract for sale of land not open to attack under statute. Where seller gave check to return down payment on parol rescission, and it was accepted, the contract was so far consummated that the buyer might, when the seller stopped payment, recover the amount of the check, regardless of the question whether he had acquired an interest in the land by contract for purchase; for, even though the statute was applicable, the buyer's performance by accepting the check was a surrender of his right. case is even stronger. This action is on a check of the defendant, and the only defense is lack of consideration. Lack of consideration may be shown as between the parties, but the difficulty of the defendant is that he has shown a sufficient consideration. If the statute of frauds is not applicable, the case is the ordinary case of a discharge of Elfenbein's liability in consideration of his check. If the statute of frauds is applicable, the case is that of Elfenbein giving a check in consideration of Ganz's promise to discharge Elfenbein's liability, and a performance by For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |