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Safeway Trails Inc. v. Furman

Decided: February 3, 1964.

SAFEWAY TRAILS, INC., A CORPORATION OF THE STATE OF MARYLAND, PLAINTIFF-RESPONDENT AND CROSS-APPELLANT,
v.
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, DEFENDANTS-APPELLANTS AND CROSS-RESPONDENTS. THE GREYHOUND CORPORATION, A CORPORATION OF THE STATE OF DELAWARE, PLAINTIFF-RESPONDENT AND CROSS-APPELLANT, V. 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, DEFENDANTS-APPELLANTS AND CROSS-RESPONDENTS. LINCOLN TRANSIT CO., INC., A CORPORATION OF THE STATE OF NEW JERSEY, HILL BUS CO., A CORPORATION OF NEW JERSEY, ROCKLAND COACHES. INC., A CORPORATION OF THE STATE OF NEW JERSEY, MANHATTAN TRANSIT COMPANY, A CORPORATION OF THE STATE OF NEW JERSEY, HUDSON BUS TRANSPORTATION CO., INC., A CORPORATION OF THE STATE OF NEW JERSEY, SOMERSET BUS CO., INC., A CORPORATION OF THE STATE OF NEW JERSEY, DECAMP BUS LINES, A CORPORATION OF THE STATE OF NEW JERSEY, AND WESTWOOD TRANSPORTATION LINES, INC., A CORPORATION OF THE STATE OF NEW JERSEY, ET AL., PLAINTIFFS-RESPONDENTS AND CROSS-APPELLANTS, V. NED J. PARSEKIAN, ACTING DIRECTOR, DIVISION OF MOTOR VEHICLES, DEPARTMENT OF LAW AND PUBLIC SAFETY OF THE STATE OF NEW JERSEY, DEFENDANT-APPELLANT AND CROSS-RESPONDENT



For reversal -- Chief Justice Weintraub, and Justices Francis, Proctor, Hall, Schettino and Haneman. For affirmance -- None. The opinion of the court was delivered by Proctor, J.

Proctor

This appeal consists of three consolidated actions involving the interpretation and validity of the Interstate Busses Excise Tax, N.J.S.A. 48:4-20. The question raised is whether the statute which imposes an excise tax of 1/2 cent per mile on interstate autobuses operated over the highways of this State applies to mileage traveled over the New Jersey Turnpike and Garden State Parkway, and if so, whether the statute as applied violates the Commerce Clause of the Federal Constitution and the Equal Protection Clause of the Fourteenth Amendment.

Lincoln Transit Co. and other autobus companies filed a petition for a declaratory judgment in the Superior Court, Appellate Division, against Ned J. Parsekian, Acting Director, Division of Motor Vehicles, Department of Law and Public Safety of the State of New Jersey. Safeway Trails, Inc., filed a complaint in lieu of prerogative writ in the Superior Court, Law Division, against David D. Furman, Attorney General of the State of New Jersey, Parsekian, and John A. Kervick, State Treasurer of New Jersey. Greyhound Corporation filed a complaint for injunctive relief and a declaratory judgment in the Superior Court, Chancery Division, against Kervick and Parsekian. The Appellate Division ordered that these three actions, in which basically the same relief was being sought, be consolidated and transferred to the Superior Court, Law Division, for trial

Following trial the Law Division held that the New Jersey Turnpike and Garden State Parkway were not highways within the meaning and intendment of N.J.S.A. 48:4-20 and that the highway-use tax imposed by the statute was improperly applied to and collected from the plaintiffs for mileage traveled over those roads and should be refunded. Defendants were enjoined and restrained from enforcing the tax with respect to mileage traveled by interstate autobuses over the New Jersey Turnpike and Garden State Parkway. Safeway Trails, Inc. v. Furman, 76 N.J. Super. 90 (Law Div. 1962). The court later held that plaintiffs were not

entitled to interest upon the refund of the tax monies. Safeway Trails v. Furman, 77 N.J. Super. 26 (Law Div. 1962). Defendants appealed from the judgment below, and the plaintiffs filed joint cross-appeals from that portion of the judgment which denied interest on the tax refunds.

The plaintiffs, common carriers of passengers, operate their autobuses over the highways of this State on both intrastate and interstate journeys. They travel extensively over either the New Jersey Turnpike or the Garden State Parkway. As interstate autobus operators plaintiffs are subject to the provisions of N.J.S.A. 48:4-20 which, prior to amendment in December 1962,*fn1 provided:

"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."

N.J.S.A. 48:4-20 has been in effect since May 7, 1934. L. 1934, c. 68.

The Legislature by the New Jersey Turnpike Authority Act (L. 1948, c. 454, as amended and supplemented by L. 1949, cc. 40 and 41; N.J.S.A. 27:23-1 et seq.) provided for the creation of the Turnpike which became available to the public in the latter part of 1951. The Garden State Parkway was established pursuant to the New Jersey Highway Authority Act (L. 1952, c. 16; N.J.S.A. 27:12B-1 et seq.) and became available in the summer of 1954. Both projects were authorized "in order to facilitate vehicular traffic

and remove the present handicaps and hazards on the congested highways in the State, and to provide for the construction of modern express highways embodying every known safety device including center divisions, ample shoulder widths, longsight distances, multiple lanes in each direction and grade separations at all intersections with other highways and railroads * * *." N.J.S.A. 27:23-1, 27:12B-2. In short, the statutes contemplated the creation of express highways superior to existing roads which would provide safer, faster, and more convenient travel in and through the State.

The New Jersey Turnpike and the Garden State Parkway were constructed by and are operated and controlled by the New Jersey Turnpike Authority and the New Jersey Highway Authority, respectively, in accordance with the authorizing legislation. Each authority was established in the State Highway Department as a body corporate and politic and each constitutes "an instrumentality exercising public and essential governmental functions," whose activities in the exercise of its authority "shall be deemed and held to be an essential governmental function of the State." N.J.S.A. 27:23-3, 27:12B-4. Each authority is comprised of three members appointed by the Governor with the advice and consent of the Senate. Ibid.

The statutes creating these Authorities provide for the sale to the public of the Authorities' bonds to finance the construction of the projects. The statutes authorize the Authorities to fix and collect tolls and other charges for the use of such projects. The operations of both Authorities are designed to be financially self-liquidating. The statute contemplates that upon payment of all bonds and notes, the Turnpike shall become part of the State Highway Department, to be operated free of tolls. N.J.S.A. 27:23-16. The State has guaranteed the punctual payment of the Highway Authority (Parkway) bonds and has provided for the funding of this guarantee. This Court has recognized that the property and roads of the Highway Authority are held for the

State. Behnke v. New Jersey Highway Authority, 13 N.J. 14, 29 (1953).

In 1950 in response to a request from the Division of Taxation, the then Attorney General issued Formal Opinion No. 78-1950 in which he advised that interstate autobus operators would not be subject to the 1/2 cent a mile tax provided by N.J.S.A. 48:4-20 for mileage traveled on the Turnpike. In his view the excise tax was intended to compensate the public for the cost and construction of public roads; the Turnpike Authority Act provided its own means of financing all expenses of the project; and therefore the Turnpike project was not a "highway" within the intendment of N.J.S.A. 48:4-20. In accordance with this opinion, no excise taxes were levied on mileage traveled by interstate autobuses over the Turnpike, and later for similar reasons, the Parkway. In 1960, however, Attorney General Furman issued Formal Opinion No. 11-1960 in which he determined that the New Jersey Turnpike was a "highway" for the purpose of N.J.S.A. 48:4-20 and that the application of the highway excise tax to interstate buses using the Turnpike would not be violative of constitutional guarantees. Pursuant to this ruling, the Acting Director of the Division of Motor Vehicles, on June 1, 1960, notified interstate autobuses using the Turnpike and Parkway that they would be required to report such mileage to the Division of Motor Vehicles and would be required to pay a tax on such mileage under N.J.S.A. 48:4-20. The plaintiffs have complied with this notification and have paid the tax imposed under protest.

Two questions are presented on this appeal: First, whether mileage traveled over the New Jersey Turnpike and Garden State Parkway by interstate autobuses should be included in the computation of the excise tax imposed by N.J.S.A. 48:4-20 and second, if so, whether the imposition of the tax violates the Commerce Clause of the United States Constitution and the Equal Protection Clause of the Fourteenth Amendment.

I.

Generally, our duty in construing a statute is to determine the intention of the Legislature. It is apparent that in 1934 when N.J.S.A. 48:4-20 was enacted, turnpikes and parkways of the type authorized by the Legislature under the Turnpike Authority Act and Highway Authority Act, if not unknown to the legislators, were certainly not within their specific contemplation. However, it is an established rule of statutory construction that a statute written in general terms will be given prospective application to situations unknown or nonexistent at the time of its enactment which are within its general purview and scope where the language fairly includes them. Cain v. Bowlby, 114 F.2d 519 (10 Cir. 1940); State v. Struck, 44 N.J. Super. 274, 278 (Cty. Ct. 1957); 2 Sutherland, Statutory Construction ยง 5102, p. 509 (1943).

Certainly the statutory language "any highway in this state" is broad enough to include within its general and ordinary meaning the New Jersey Turnpike and the Garden State Parkway.*fn2 Indeed, the legislation providing for their construction refers to them as "modern express highways." N.J.S.A. 27:23-1, 27:12B-2, quoted supra. And as stated in Atlantic & S. Ry. Co. v. State Bd. of Assessors, 80 N.J.L. 83, 86 (Sup. Ct. 1910), "For most purposes a turnpike is regarded as a highway; and it may be said to be generally so regarded when the term highway is used in a statute, unless the words and purposes of the act display a different legislative intent." See also Miller v. Pennsylvania-Reading Seashore Lines, Inc., 117 N.J.L. 152 (E. & A. 1936); State, Parker v. City of New Brunswick, 32 N.J.L. 548 (E. & A. 1867); Fenton v. Margate Bridge Co., 24 N.J. Super. 450

(App. Div. 1953), certification denied 12 N.J. 350 (1953). In the absence of an explicit indication of a special meaning, the words of a statute are to be given their ordinary and well understood meaning. Ford Motor Co. v. New Jersey Dept. of Labor and Industry, 5 N.J. 494, 503 (1950); Morris & Essex Investment Co. v. Director of Div. of Taxation, 33 N.J. 24, 34 (1960). Accordingly, we should construe the term "any highway" in N.J.S.A. 48:4-20 to include the Turnpike and the Parkway unless the purpose and general purview of the enactment compel a more restrictive meaning.

The forerunner of the present tax provision was enacted in 1927 (L. 1927, c. 184) and was accompanied by the following statement of purpose:

"This bill imposes an excise on the use of highways of the State by motor vehicles used for carrying passengers or property for hire in interstate commerce. The purpose is to compel such vehicles to bear their just share of taxation. At the present time such vehicles pay nothing to the State of New Jersey, except the registration fees provided for under the Motor Vehicle Act, while other vehicles operating wholly within the State are subject to taxation. The ...


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