For affirmance as modified -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hall, Schettino and Mountain. For reversal -- None. The opinion of the court was delivered by Mountain, J.
Many of the background facts in this case appear in Kingsley v. Wes Outdoor Advertising Co., 106 N.J. Super. 248 (Ocean Cty. D. Ct. 1969), aff'd 55 N.J. 336 (1970).
Wes Outdoor Advertising Co. (Company) erected and maintained a number of outdoor advertising signs or structures without first securing permits as required by the Outdoor Advertising Act, N.J.S.A. 54:40-54. The Division of Taxation, acting through the State Supervisor, Outdoor Advertising Tax Bureau, directed the Company to remove them. This was not done and suit was instituted in the Ocean County District Court seeking the imposition of penalties (N.J.S.A. 54:40-65) and the recovery of the expense to which the State had been put in removing certain of the signs. (N.J.S.A. 54:40-57). The District Court substantially sustained the position of the Division and imposed a penalty of $100 per day for each violation. The total penalty for all violations thus amounted to $57,200, there having been 572 days of separate infractions. To this was added the cost of removing the four structures ($1,015) together with an identical amount assessed as an additional penalty pursuant to N.J.S.A. 54:40-57. Thus on July 14, 1969 judgment was entered against the Company in the total amount of $59,230 together with costs.
At the trial the defendant had confined itself largely to the single argument that the District Court was without jurisdiction to enter judgment in an amount larger than $1,000 (that having then been the monetary jurisdictional limit of that court as fixed by statute).*fn1 This issue was determined both in the District Court and in this court on appeal adversely to the Company's contention.
Simultaneously with the commencement of the suit described above, on February 25, 1969, the Company instituted
an action in lieu of prerogative writs in the Law Division of the Superior Court naming the Director of the Division of Taxation and the State Supervisor, Outdoor Advertising Tax Bureau, as defendants. This suit sought to enjoin defendants from removing the signs and demanded a declaration that portions of the Outdoor Advertising Act were unconstitutional and that plaintiff was entitled to receive permits for the signs or structures in question. A temporary restraining order issued upon the filing of the complaint but was dissolved May 9, 1969 at which time the action was dismissed with prejudice.
Thereafter on October 28, 1969 the Director of the Division of Taxation, through the Attorney General, caused a writ of execution to issue to the Sheriff of the County of Ocean seeking to satisfy the judgment. On November 28, 1969 execution was stayed, but this stay was thereafter lifted and on January 9, 1970 the sheriff levied upon certain property allegedly owned by the Company. On January 22, Wesley K. Bell, the actual owner of the Company, filed a claim of property with the sheriff, demanding that the goods and chattels upon which the levy had been made be delivered to him, as being his personal property and not that of the Company. Upon the sheriff refusing this demand, Bell instituted a further plenary suit, this time in the Ocean County Court, alleging that he was the owner of the property in question, reciting the entry of the aforementioned judgment, the issuance of the writ of execution, the levy made by the sheriff, his own claim of property and the refusal of the sheriff to surrender the goods and chattels. The suit sought a determination as to the ownership of the property. An order issued directing the Attorney General and the sheriff to show cause why the relief sought in the complaint should not be granted and temporarily restraining them from taking any further action looking to a sale of the property. Thereafter apparently the return day of the order to show cause was continued from time to time.
At this point events took a rather bizarre turn. On May 1, 1970, a consent judgment was entered in the suit pending in the Ocean County Court expunging the judgment originally entered in favor of the State against the Company in the Ocean County District Court, "[u]pon the condition that Wesley K. Bell, individually, be substituted therefor as judgment debtor nunc pro tunc, which is based upon assurances received from the said Wesley K. Bell that he individually is the owner of all billboards, ground leases, automobiles, accounts receivable, checking accounts and bank accounts and all other properties, real, personal and intangible, of the Wes Outdoor Advertising Company, a corporation of the State of New Jersey." On the same day, the Director of the Division of Taxation caused a writ of execution to issue to the Sheriff of Ocean County directed against the property and assets of the new judgment debtor, Wesley K. Bell.
The reason motivating Bell in having himself substituted as judgment debtor soon became apparent. On May 7 he moved for an order directing that he be committed to the Ocean County jail for a period not to exceed 30 days pursuant to the provisions of N.J.S.A. 54:40-67. To understand Bell's purpose it is necessary to set forth a portion of this statute, which reads as follows:
If judgment shall be rendered for the plaintiff, the court shall cause any defendant who may refuse or fail to pay forthwith the amount of the judgment rendered against him and all costs and charges incident thereto to be committed to the county jail for a period not exceeding 30 days.
If a defendant who is committed to jail in default of payment of the penalty shall serve the full period for which he shall be committed, upon his release from jail he shall be entitled to have the judgment satisfied of record, and the certificate of the warden of said jail that the said defendant has been detained for the period specified in the ...