On appeal from Hudson County Court.
For affirmance -- Chief Justice Vanderbilt, and Justices Case, Heher, Oliphant, Wachenfeld, Burling and Ackerson. For reversal -- None. The opinion of the court was delivered by Burling, J. Heher, J., concurring in result.
This is a civil action in which both the plaintiff City of Bayonne, a municipal corporation of this State, and the defendants, motorbus operators, appeal from a judgment of the Hudson County Court. The appeals were addressed to the Appellate Division of the Superior Court and prior to hearing there were certified to us upon our own motion.
Suit was instituted below by the City of Bayonne against the 30 defendants, all motorbus operators, to recover the city's proportionate share of gross receipts taxes, together with statutory penalties, viz., $100 for each offense, for failure to file monthly statements showing the gross receipts and failure to make payment of the taxes as the same became due. The statutory authority for both taxes and penalties is hereinafter discussed. The series of events culminating in this suit appears to have had its inception during the winter of 1928. The facts were stipulated for a trial to the court without a jury, and are briefly recited here. Prior to 1928 no motor buses on the Bergen Avenue Bus Route in Jersey City, New Jersey, and particularly none operated by the defendants in the suit, did any business in the City of Bayonne. During the winter of 1928 the various operators on the Bergen Avenue route determined that buses on that route could conveniently commence their northbound trip from the northeast corner of Broadway and 54th Street in the City of Bayonne. The portion of the entire route, as so extended, lying within the City of Bayonne has been determined to be one sixty-fifth part thereof. The president and secretary of the Bergen Avenue Bus Owners Association acting on behalf of all the defendants called upon the supervisor of bus transportation of the City of Bayonne to arrange for payment
of the proportionate part of the five per cent gross receipts tax which would begin to be due the plaintiff city when the route became extended into that municipality. The supervisor was in charge of the operation of all motor buses operating within the territorial bounds of the City of Bayonne. Upon learning from these officers of the association, by means of reports of all the operators on the route in question, that the monthly tax payable to the City of Bayonne by each of the operators (i.e., those who have been named defendants in this suit) would not amount to more than 75 cents, the supervisor referred the officers of the association to the mayor, and after consultation between them, the mayor and the supervisor, they were advised by the mayor to "take their business to the city clerk." Thereupon the same association representatives called upon the city clerk, and after conference with him were told by him: "What do you wish us to do; hire two additional clerks to take care of this matter? It is too small an amount for us to bother with. Continue to pay your full taxes to Jersey City and when we wish to commence to take our proportionate share we will advise you to commence payment to us."
Thereafter, all the defendants continued to pay their full gross receipts tax to the City of Jersey City. However, in the spring of 1929, the president of the association made a second effort on behalf of the defendants to arrange for payment of the proportionate share of the tax to the City of Bayonne. He was again granted audience by the supervisor and the city clerk, and again was informed the city would not accept the tax because the amount involved was too small. Thereafter and until demand was made by the City of Bayonne in June, 1948, the defendants paid the full tax to the City of Jersey City; from and after June, 1948, the defendants have paid their proportionate share of the monthly gross receipts tax to the City of Bayonne.
By the complaint in this suit, filed January 24, 1949, the plaintiff municipality sought to recover its proportionate share of the gross receipts tax from the time in 1928 or 1929
(the complaint is not specific) the defendant began operation on the Bergen Avenue route in the City of Bayonne to the time in June, 1948, when the defendants, after demand by the city, began to pay the current proportionate share of such taxes, and also sought to recover statutory penalties for failure to file monthly statements and make monthly payment of the said taxes. The complaint was founded on R.S. 48:16-25 which reads as follows:
"Every person as herein defined, owning and operating an autobus as herein defined, in any city of this state shall, on or before the tenth day of each calendar month, file with the city treasurer of such city a statement, verified by oath, showing the gross receipts from the business of said autobus or busses during the preceding calendar month, and shall at the same time pay to the city treasurer of such city five per cent of such gross receipts as a monthly franchise tax for revenue for the use of such city; provided, that if the route over which such autobus is operated shall extend beyond the limits of such city, then such person shall include in such statement the length of the route over which said autobus is operated both within and without said city, and shall pay as said franchise tax to said city five per cent. of such proportion of the gross receipts as the length of the route in the city bears to the whole length of such route.
The sum accruing to any city under this section when paid shall be in lieu of all other franchise taxes and municipal license fees.
Any person owning and operating an autobus or busses in any city of this state neglecting or refusing to make such monthly statement or payment at the time and as required herein shall thereby forfeit and pay for such neglect or refusal one hundred dollars for each offense, to be recoverable by action in the name of such city in any court of competent jurisdiction and when collected paid into the city treasury. Any person who shall falsely make any oath required to be made in this section shall be guilty of perjury."
The above statute is a portion of an act relating to jitneys, i.e., buses carrying no more than six passengers, as hereinafter discussed.
The defendants answered, denying that they were required to file monthly statements as alleged in the complaint, and raising inter alia separate defenses of full payment, neglect and refusal on the part of the plaintiff to accept the taxes, and the six-year (R.S. 2:24-1), two-year (R.S. 2:24-22 a and b) and one-year (R.S. 2:24-22 d) statutes of limitations.
Pretrial conferences were held on December 21, 1949, and September 29, 1950. In the pretrial orders the plaintiff confined its complaint as to taxes to a period of six years next prior to the commencement of suit, and admitted that it ...