This is a suit for a declaratory judgment with respect to the proper application of the Interstate Busses Excise Tax, R.S. 48:4-20, and for a judgment with respect to the constitutionality of that statute insofar as it may be held to apply to miles traversed by interstate busses over the New Jersey Turnpike and the Garden State Parkway. Plaintiffs seek an injunction restraining the defendants from enforcing R.S. 48:4-20 with respect to interstate mileage traveled by plaintiffs' busses on the New Jersey Turnpike and the Garden State Parkway. Plaintiffs also seek a mandatory injunction requiring the defendants to refund all sums paid by the plaintiffs under R.S. 48:4-20 on account of interstate mileage traversed on the New Jersey Turnpike and Garden State Parkway since June 1, 1960.
Plaintiffs Lincoln Transit Co., Inc., Hill Bus Co., Rockland Coaches, Inc., Hudson Bus Transportation Co., Inc., Somerset Bus Co., Inc., DeCamp Bus Lines, Manhattan Transit Company and Westwood Transportation Lines, Inc., all corporations of the State of New Jersey, instituted an action in the Superior Court of New Jersey, Appellate Division (Docket A-30-60), naming as defendant Ned J. Parsekian, Acting Director, Division of Motor Vehicles, Department of Law and Public Safety of New Jersey. Safeway Trails, Inc., a corporation of the State of Maryland, started suit in the Superior Court of New Jersey, Law Division, Essex County (Docket L-12425-60 P.W.) against David D. Furman, Attorney General of the State
of New Jersey and head of the Department of Law and Public Safety, Ned J. Parsekian, Acting Director, Division of Motor Vehicles, and John A. Kervick, State Treasurer of New Jersey. The Greyhound Corporation, a corporation of the State of Delaware, instituted an action in the Superior Court of New Jersey, Chancery Division, Mercer County (Docket C-1843-60) against John A. Kervick, Treasurer of the State of New Jersey and Ned J. Parsekian, Acting Director, Division of Motor Vehicles, Department of Law and Public Safety of the State of New Jersey. These actions, in which basically the same relief was being sought, were consolidated by order of the Superior Court, Appellate Division, entered July 10, 1961 and transferred to the Superior Court, Law Division, Essex County, for trial.
All of the plaintiffs are common carriers of passengers by motor bus owning and operating autobusses which traverse the highways of this State for the purpose of carrying both interstate and intrastate passengers. By reason of their interstate operations plaintiffs are subject to and required to comply with the provisions of R.S. 48:4-18 et seq. Pursuant to R.S. 48:4-20, plaintiffs are obliged to pay the sum of one-half cent for each mile traveled by their busses over the highways of this State as part of an interstate journey. This sum is exacted as an excise for the use of the highways of this State. No excise is payable, however, for miles traveled in municipalities to which monthly franchise taxes have been paid under the provisions of N.J.S.A. 48:4-14 et seq. By virtue of the provisions of R.S. 48:4-30 and R.S. 48:4-32, refusal by plaintiffs to pay the excise will expose them to the probable revocation of their motor vehicle registrations and a penalty of five dollars for each day the tax remains unpaid after it is due.
R.S. 48:4-20 has been in effect since May 7, 1934. Its source is L. 1934, c. 68. The New Jersey Turnpike was made available to the public in November 1951. Shortly thereafter plaintiffs inaugurated scheduled or charter service
via the New Jersey Turnpike. The Garden State Parkway was made available to the public in August 1954. Several of the plaintiffs have taken advantage of the facilities of the Parkway since that date. All of the plaintiffs have continuously engaged in the said services via the Turnpike and Parkway, as the case may be, since these facilities were made available to them.
On November 14, 1950, by Formal Opinion Number 78, the Attorney General of New Jersey advised the Deputy Director of the New Jersey Division of Taxation, that interstate carriers of persons using the New Jersey Turnpike would not be subject to the tax imposed by R.S. 48:4-20. It was the Attorney General's opinion that the New Jersey Turnpike was not a highway within the meaning of the taxing statute.
On April 18, 1960 the then Attorney General of New Jersey, by Formal Opinion Number 11, advised the Acting Director of the New Jersey Division of Motor Vehicles that R.S. 48:4-20 does apply to interstate busses using the New Jersey Turnpike. This opinion, which reversed Formal Opinion Number 78 (1950), not only dealt with the question of whether or not the New Jersey Turnpike is a highway within the meaning of R.S. 48:4-20, but also with the constitutional questions which would arise out of this application of the excise tax.
Prior to July 25, 1960 the Acting Director of the Division of Motor Vehicles promulgated an order or regulation that the excise tax imposed by R.S. 48:4-20 is applicable to interstate mileage traversed over the New Jersey Turnpike. The plaintiffs were required to pay and have paid under protest since July 25, 1960, excise for the interstate miles traveled by their busses over the New Jersey Turnpike and the Garden State Parkway.
The question of whether or not the Garden State Parkway and the New Jersey Turnpike are "highways" within the meaning and for the purpose subserved by R.S. 48:4-20 must of necessity be answered first. This is due to the
fact that if this court answers the above question in the negative there would be no occasion to examine the constitutional issues which arise out of the present application of the excise tax.
R.S. 48:4-20 reads as follows:
Every person owning or operating an autobus which is operated over any highway in this state for the purpose of carrying passengers from a point outside the state to another point outside the state, or from a point outside the state to a point within the state, or from a point within the state to a point outside the state shall pay to the commissioner of motor vehicles, as an excise for the use of such highway, one-half cent for each mile or fraction thereof such autobus shall have been operated over the highways of this state, except that no excise shall be payable for the mileage traversed in any municipality to which such owner or operator has paid a monthly franchise tax for the use of its streets under the provisions of section 48:4-14 of this title.
The cardinal guide in the interpretation of a statute is the intention of the Legislature, and that intent so far as possible is to be derived from the language of the statute. Harvey v. Board of Chosen Freeholders of Essex County , 51 N.J. Super. 363 (Law Div. 1958), affirmed 30 N.J. 381 (1959). The defendants argue that the language of R.S. 48:4-20 is clear and unambiguous and that in such a case there is no room for judicial construction. Cf. Bass v. Allen Home Imp. Co. , 8 N.J. 219 (1951); Rosenthal v. State Employees', etc., System of N.J. , 30 N.J. Super. 136 (App. Div. 1954); Sutherland, Statutory Construction (3 d ed. 1943), § 45021.
While defendants' premise is true in the ideal situation, it cannot be said to be all-inclusive. The following language taken from the late Chief Justice Vanderbilt's opinion in Watt v. Mayor, etc. of Franklin , 21 N.J. 274, 277, 278 (1956), is instructive:
"In every case involving the application of a statute, it is the function of the court to ascertain the intention of the Legislature from the plain meaning of the statute and to apply it to the facts as it finds them, Carley v. Liberty Hat Mfg. Co. , 81 N.J.L. 502, 507
(E. & A. 1910). A clear and unambiguous statute is not open to construction or interpretation, and to do so in a case where not required is to do violence to the doctrine of the separation of powers. Such a statute is clear in its meaning and no one need look beyond the literal dictates of the words and phrases used for the true intent and purpose in its creation. But few statutes can boast of such clarity or stand that test through every inquiry, and the court must take the responsibility of determining in each case presented whether the particular statute, in its application to it, is clear and unambiguous.
The need for construction arises in two instances. As we move away from the ideal of a clear and unambiguous statute we find statutes that on their face are clear and unequivocal but in light of related legislation and of the surrounding facts and circumstances of the case in which it is applicable, the true meaning becomes indefinite or obscure. In these instances it may be the plain meaning of the words themselves that casts doubt as to the true intention of the Legislature, or often it is the absurdity of the result flowing from a literal application of that plain meaning that causes wonder as to the true purpose of the enactment. Then, too, there are those less difficult instances in which the meaning of a statute is obviously obscure or doubtful, where the language used is per se capable of dual interpretation. When these circumstances appear the court is not only at liberty to interpret the statute but it is its solemn duty to seek out and give effect to the legislative intent evident from the aids available to it." (Citations omitted)
The learned Chief Justice went on to ask (at p. 278):
"When from the plain meaning of the words used in a statute reasonable men are led to question whether the Legislature intended a particular result, can it be said that their enactment is clear and unambiguous?"
In the instant case the facts show that in 1960 the then Attorney General of New Jersey reviewed the statute here being considered and placed an entirely different construction on the language contained therein than that of his learned predecessor. In the ten-year period between the Formal Opinions rendered by these learned Attorneys General not one word of R.S. 48:4-20 had been altered. The fact that completely opposite conclusions with respect to the application of the same statute were reached by two Attorneys General of this State might be enough to justify this Court's exercise of its interpretative function.
There are, however, other factors, such as related statutes and the circumstances which existed at the time R.S. 48:4-20 was enacted which, when taken together, show the need for interpretation.
Applying the principles set forth in Watt v. Mayor of Franklin, supra , to the statute under review, this court feels justified in exercising its interpretative function with reference to whether the Legislature intended the word "highway" in R.S. 48:4-20 to be applied in its broad generic sense or in such a manner as to exclude toll roads from its purview.
The word "highway" is of Saxon derivation, meaning a right of use for passengers whether private or public. It is a generic name for all kinds of ways which are common to all people having occasion to pass over them. Township of Parsippany-Troy Hills v. Bowman , 3 N.J. 97 (1949); Wild v. Deig , 43 Ind. 455, 13 Am. Rep. 399 (Sup. Ct. 1873); Koutsky v. Grabowski , 150 Neb. 508, 34 N.W. 2 d 893 (Sup. Ct. 1948); Skinner v. Town of Weathersfield , 78 Vt. 410, 63 A. 142 (Sup. Ct. 1906).
There can be no doubt that both the Garden State Parkway and the New Jersey Turnpike are "highways" within the meaning of the word as it is generally used. The statutes under which both projects came into being classify them as such. As to the Garden State Parkway, N.J.S.A. 27:12B-2 provides that:
"In order to facilitate vehicular traffic and remove the present handicaps and hazards on the congested highways in the State * * *, the New Jersey Highway Authority (hereinafter created) is hereby authorized and empowered to acquire, construct, maintain, improve, repair and operate highway projects (as hereinafter defined) * * *."
The definition of a "highway project" is found in N.J.S.A. 27:12B-3(d) to be "any express highway, superhighway or motorway." To the same effect are N.J.S.A. 27:23-1 and N.J.S.A. 27:23-4(b) with regard to the New Jersey Turnpike.
The word "highway," however, is not always afforded a broad, all-inclusive construction. Cf. Arkansas State Highway Commission v. Southwestern Bell Telephone Co. , 206 Ark. 1099, 178 S.W. 2 d 1002 (Sup. Ct. 1944), wherein turnpikes were said to be "public highways" but not "highways of the state" within the meaning of an act authorizing the construction of telephone lines along and over the public highways of the state without requiring payment as compensation for exercising that right.
Various reasons are set forth in support of the position that the Legislature could not have intended to include Turnpike and Parkway mileage for the purpose of measuring the excise tax imposed by R.S. 48:4-20. The argument is made that at the time R.S. 48:4-20 was enacted the Turnpike and Parkway were not yet in existence and that therefore the Legislature could not have intended them to be included within the ambit of the tax imposed. It is further asserted that at the time R.S. 48:4-20 was enacted (L. 1934, c. 68) there were no toll roads in existence in the State of New Jersey, the last of the toll roads having been ...