a court." 316 U.S. at pages 513, 514, 62 S. Ct. at page 1135, 86 L. Ed. 1629.
It is clear that the principle enunciated in Ogden v. Saunders is confronted with the same state power said to have been brought into play in impact with Sturges v. Crowninshield. If a contrary view is taken, then the entire justification of the New Jersey composition statute would fall in so for as it could operate on non-resident bondholders, and in view of the diversity of citizenship of the innumerable owners of such securities the approved state scheme would deteriorate into a futility. The plaintiff-relator cannot acquire the advantage he seeks by reason of his non-resident status.
The plaintiff-relator contends that if his judgment was included in the amended refunding plan, the New Jersey composition statute is unconstitutional and void to the extent that it restricts the right of the holder of the judgment to compel the City by mandamus to satisfy the principal and interest of his judgment, under the case of Sovereign Camp W.O.W. v. Wilenta, D.C.N.J.1938, 23 F.Supp. 23. In that case a "three judge" court held unconstitutional certain "stay" provisions of the Municipal Finance Commission Acts of New Jersey, N.J.P.L.1933, c. 330, N.J.S.A. 52:27-1 et seq., N.J.P.L.1935, c. 195 and c. 258 N.J.S.A. 52:27-46 et seq., in so far as they affected the right of the complainant in that case to enforce its judgment obtained in this court and held that such enforcement should be in accordance with the law existing in the state of New Jersey at the time of the issuance and sale of the bonds in question. The provisions of the New Jersey composition statute, N.J.P.L.1933, c. 331, N.J.R.S. 52:27-34 et seq., N.J.S.A., were not considered in the case. An appeal to the United States Supreme Court, reported in 306 U.S. 573, 59 S. Ct. 709, 83 L. Ed. 994, was dismissed only after the court pointed out that the issue was not one for which a court of three judges is prescribed, and an appeal to the Circuit Court of Appeals of the Third Circuit, reported in 108 F.2d 1022, resulted in a reversal upon a stipulation in which the appellee confessed error in that the District Court was without jurisdiction, as determined by the United States Supreme Court, because it was improperly composed of three judges. I cannot agree that the decision of the District Court in that case is decisive of any rights of the plaintiff-relator herein, particularly in the light of the later Faitoute case.
Upon analysis the several objections made by plaintiff-relator to the granting of the motion of the defendant-respondents on the ground of waiver, acquiescence, laches and res adjudicata are devoid of merit. He insists that in the amended refunding plan there is no reference to provision for the inclusion of the judgment or the bonds and coupons upon which it is based. An examination of the printed amended refunding plan discloses that definite reference to the inclusion of the judgment in the plan and to the bonds represented by it is found in the form of resolution attached to the plan itself and marked Schedule A. The conduct of the City in appearing and resisting an application of bondholders and a taxpayer who sought to review by certiorari in the New Jersey Supreme Court a resolution on the Council of the City to pay the installment for the year 1940 is suggested as evidence of acquiescence. It is to be remembered that the writ of mandamus was in effect and the City at that time was unarmed with the decision in the Faitoute case. The application was refused but the appearance of the City in the matter had no more effect than the passage of the resolution or the payments of the installments themselves. Similarly, the stipulations of June 9, 1937 and June 14, 1938, are urged as evidence of the acquiescence of the City in the operation of the judgment upon it. The earlier stipulation was made at a time when the composition proceedings had not reached a stage of completion and amounted to an agreement to terms which would otherwise have been inevitably decreed by the court, and the latter stipulation was one in which the plaintiff-relator or his predecessors agreed that no contempt proceedings would be brought against the defendant-respondents if they made payments in a lesser sum than that directed by the mandamus by reason of the release of such portion of the judgment as represented the bonds and coupons deposited by the Central Hanover Bank & Trust Company. It is a fact that the City insisted, pursuant to the earlier stipulation, that each bond and coupon should be so stamped that its reduction to judgment should be indicated thereon. However, neither the stipulations nor the endorsement stamped on the bonds and coupons sustains the inference of waiver or acquiescence in the plaintiffs'-relators' rights under the judgment in the light of the efforts of the defendant-respondents to resist them, which were equally as rigid as the plaintiffs'-relators' determination to remain outside of any involvement in the composition proceedings.
The charge by the plaintiff-relator that the order of this court for the writ of madamus on the second application for such a writ constituted res adjudicata is not sustained because at the time of the order the proceedings had only been initiated and the plan was not approved until a year later. The presence and resistance of the City's representatives to the abortive application for the writ of certiorari to the New Jersey Supreme Court by the bondholders and taxpayer to review the resolution of the City Council in authorizing the payment of the 1940 installment was likewise offered as res adjudicata. It cannot be said to rise to such significance. The application was denied by the court and no papers were filed.
It was shown that recently certain interests in the judgment were sold by the plaintiff-relator or his predecessors and that if this motion is granted such purchasers stand to suffer thereby. It would seem that they can acquire no greater equities than the original holders of the judgment enjoyed and are subject to the same vicissitudes.
It is noted that the Supreme Court observed in the Faitoute case: "We do not go beyond the case before us. Different considerations may come into play in different situations." 316 U.S. at page 516, 62 S. Ct. at page 1136, 86 L. Ed. 1629.
I am unable to find that the deep and underlying considerations in this case are different. The owners of bonds in this case took a further step in connection with them. Being non-residents of New Jersey they reduced them to judgment in the United States District Court. The judgment did not attach itself to anything as a lien. The basic pattern is still that ruled upon in the Faitoute case. No priority is established for it in impact with a valid composition proceeding under the New Jersey statute. The holder of such a judgment must find his place on the same level of distribution as all of the other holders of the municipality's obligations contemplated in the plan even though, as here, a writ of mandamus had issued. I am constrained to the conclusion that the defendant-respondents neither waived any rights to enforce the acceptance of the plan approved by the New Jersey Supreme Court upon the plaintiffs-relators nor did they acquiesce in the liquidation of the judgment outside of the plan at a rate of return in excess of other bondholders contemplated in the plan. The defendant-respondents acted to enforce the provisions of the plan upon the plaintiff-relator or his predecessors with reasonable dispatch after its legality was established and were guilty of no laches.
Therefore, the motion of the defendant-respondents that the enforcement of the judgment and writ of mandamus based thereon should be perpetually stayed must be granted. Notice should be given by the defendant-respondents that an order will be settled on a forthcoming motion day in conformity with this opinion and the circumstances as they may have been affected by the consent order filed herein on March 20, 1943.
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