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Keith Machinery Corp. v. Borough of South Plainfield

Decided: December 17, 1965.

KEITH MACHINERY CORPORATION, A NEW YORK CORPORATION, PLAINTIFF,
v.
THE BOROUGH OF SOUTH PLAINFIELD AND JOHN BORI, TAX COLLECTOR, DEFENDANTS



Gerofsky, J.s.c.

Gerofsky

[89 NJSuper Page 586] This is a declaratory judgment action involving the construction of an act of the Legislature known as the Moving Permit Statute (N.J.S.A. 40:52A-1 et seq.) and an ordinance enacted on October 13, 1949, by the Borough of South Plainfield pursuant to said statute. Plaintiff Keith Machinery Corporation, a New York corporation, further demands the return of $1525 held by the borough attorney. Defendants Borough of South Plainfield and Tax Collector John Bori claim this money as a condition for a removal permit granted to plaintiff under the aforesaid statute and ordinance. Neither counsels' nor the court's research has produced any authority construing the Moving Permit Statute or the ordinance of the Borough of South Plainfield here under consideration, or any similar legislation elsewhere.

The facts of the case are not in dispute. Plaintiff purchased certain personal property on February 24, 1965. Some of the property was purchased from Specialty Plastics Processors, Inc., a New Jersey corporation hereinafter referred to as "Specialty." The bulk of the property was purchased from Keaton Rubber Co., a New Jersey corporation hereinafter referred to as "Keaton." The property purchased from Keaton had previously been owned by Specialty, subject to a chattel mortgage held by Keaton, and had been surrendered by Specialty to Keaton on February 24, 1965. On March 9, 1965 plaintiff sold the property in question at auction sale subject to the provision that plaintiff would remain the owner of the property until delivery thereof to the respective purchasers.

On March 10, 1965, plaintiff was advised by the tax collector of the borough that a moving permit was required to transport or deliver the property and that such a permit would not be issued until plaintiff paid the outstanding personal property taxes assessed against Specialty for 1965 and prior years. Plaintiff denied that it was liable for the payment of those taxes as a condition for obtaining a moving permit. The parties finally agreed that a permit would be issued upon plaintiff's depositing the sum of $1525 with the borough attorney pending judicial determination of the matter.

The principal issue before this court, then, is whether an owner of personalty is liable for the payment of personal property taxes assessed against a prior owner of the property sought to be removed, as a condition to the issuance of a removal permit.

A further issue is presented to the court through plaintiff's contention that if the municipality's construction of the statute be correct, then the Moving Permit Statute violates N.J. Const., Art. IV, ยง VII, par. 4, which provides that "every law shall embrace but one object, and that shall be expressed in the title." Plaintiff argues that requiring a present owner of personal property to pay the unpaid taxes of a prior owner is in effect the imposition of a new tax, whereas the title of

the act in question is, "An Act relating to the collection of certain tangible personal property taxes in certain municipalities"; and that therefore the statute embraces more than one object, both imposition and collection, and one of the objects, imposition of a tax, is not expressed in the title of the act.

The point is presented, not as an attack on the constitutionality of the statute, but as an additional argument that, according to accepted principles of statutory construction, a court should strive to construe a statute so that its constitutionality will be maintained. In view of the ultimate holding of the court, the matter becomes moot. Parenthetically, I point out that notice of the pendency of this suit was given to the Attorney General of the State of New Jersey, presumably pursuant to R.R. 4:37-2, and he has declined to intervene.

The issue of liability for taxes assessed against a prior owner of the property sought to be removed requires an examination of the language of the Moving Permit Statute and of the ordinance enacted by the defendant borough. Since the wording of the enabling act is identical to that of the corresponding sections of the ordinance in question, except for minor variations not here relevant, the court shall treat with the enabling act, which perforce will be dispositive of the ordinance for the purposes of this case.

N.J.S.A. 40:52A-2 authorizes any municipality to enact an ordinance requiring the owner of tangible personal property to apply for a permit from the tax collector of the municipality before removing the property from the premises. N.J.S.A. 40:52A-4 authorizes the requirement that all personal property taxes assessed against the owner of the property be paid before the issuance of a permit. The wording of the statute, which is critical to a determination of the issue, is as follows:

"The ordinance may provide that upon the filing of such application as aforesaid it shall be the duty of the tax collector to ascertain forthwith the total amount of taxes due that have been charged or assessed

against the person owning or claiming to own the tangible personal property sought to be transported or removed and which have not been paid at the time of the making of such application but excluding any taxes assessed or charged for real property, together with the interest and other charges thereon, and to notify the person making such application the total amount due for such taxes, interest and other charges. The ordinance may provide that when such application is made during or after the period provided by statute for the assessment of taxes for any year, the person owning or claiming to own the tangible personal property sought to be removed or transported shall be liable to pay not only the taxes ...


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