The City of Jersey City et al. appeal from a rule of the Supreme Court discharging rules to show cause why mandamus directed to the State Comptroller should not issue, commanding him to draw his warrants upon the State Treasurer for the distribution of interest which became due on taxes assessed against Class II railroad property and has been paid into the state treasury, to the municipalities in which said Class II property was situated.
In 1944, certain railroads which had defaulted in the payment of taxes during the years 1932 to 1940, paid into the state treasury the amounts of such defaulted taxes and also the amounts of interest, as computed by them to be due; $20,203,639.03 so paid was designated by them as taxes, and $15,276,373.93 so paid was designated as interest on said defaulted taxes. Most of such interest on such defaulted railroad taxes was paid pursuant toR.S. 54:27-4, which provides: "If the taxes of any company, or any portion thereof, remain unpaid on December first following the levying thereof, the company shall be considered in default, and such taxes, or the unpaid portion thereof, shall thenceforth bear interest at the rate of one per cent. for each month until paid," and the balance of such interest was paid pursuant to section 4 of Pamph. L. 1941, ch. 290, which provides: "* * * interest at the rate of three percentum (3%) per annum shall be paid annually upon the balance of delinquent taxes remaining unpaid from and after December first, one thousand nine hundred and forty." Of the total amount paid on account of Class I, II, III and IV railroad property, $10,476,050.70 represented taxes assessed against Class II railroad property, and of the interest paid, $8,076,047.60 represented interest which accrued on such defaulted Class II railroad taxes.
Jersey City, on July 19th, 1944, made a demand on the Comptroller as follows: "The City of Jersey City takes the position that it is entitled, under R.S. 54:24-11 (repealed, but still effective as to distribution of taxes for the years 1932-40), both to taxes and interest accrued upon taxes derived from the assessment of Class II property situated in the City of Jersey City." *Page 452
On August 22d 1944, the Comptroller paid to the various taxing districts (including Jersey City) which were entitled thereto, the entire $10,476,050.70 representing the principal taxes assessed against Class II railroad property, but made no payment of any interest moneys received by the state on said taxes. The action of the Comptroller was predicated upon his conclusion thatPamph. L. 1944, ch. 150 and R.S. 54:24-11 (the applicable statutes) made an appropriation of the principal taxes assessed against Class II railroad property, but made no appropriation of any interest which had accrued on said taxes.
On January 29th, 1945, the legislature enacted and on January 30th the Governor approved chapters 4, 5 and 6 of 1945 which became effective immediately and which by their terms made specific appropriations of the moneys already received by the state as interest on past due railroad taxes. By chapter 4, approximately $3,300,000 was appropriated to the municipalities who received distribution of the delinquent Class II railroad tax principal. By chapter 5, approximately $5,800,000 was appropriated to the school districts of the state. By chapter 6, approximately $4,000,000 was appropriated to all municipalities, to be distributed on the basis of average daily attendance in the public schools. These three acts appropriated approximately $13,100,000 of interest in the state treasury out of a total of $15,276,373.93 received in the summer of 1944.
On January 30th, 1945, on application of Jersey City, and shortly thereafter on application of others, the rules to show cause involved in this case were entered in the Supreme Court, in which proceedings one of the claims advanced was that chapters 4, 5 and 6 of 1945 are unconstitutional.
On March 12th, 1945, the legislature enacted and on March 13th the Governor approved chapter 34 which reads as follows:
"An act concerning the disposition of certain moneys received and to be received by the State as interest on past due railroad taxes.
"BE IT ENACTED by the Senate and General Assembly of the State of New Jersey: *Page 453
"1. All moneys received by the State as interest on past due railroad taxes and held by the State Treasurer on January thirtieth, one thousand nine hundred and forty-five, shall be retained in the State Treasury as part of the general State funds, subject to appropriation hereafter by the Legislature;provided, however, that moneys may be withdrawn therefrom without further appropriation, pursuant to the provisions of `An act for the relief of certain municipalities,' approved January thirtieth, one thousand nine hundred and forty-five (P.L. 1945, c. 4), `An act for the relief of school districts,' approved January thirtieth, one thousand nine hundred and forty-five (P.L. 1945, c. 5), and `An act making an appropriation to the municipalities of this State to be used for the purposes of tax reduction,' approved January thirtieth, one thousand nine hundred and forty-five (P.L. 1945, c. 6).
"2. All moneys received and which shall be received by the State after January thirtieth, one thousand nine hundred and forty-five, as interest on past due railroad taxes shall be retained in the State Treasury as part of the general State funds, subject to appropriation hereafter by the Legislature.
"3. This act shall take effect immediately."
On March 13th, 1945, the rules to show cause were extended so that relators might question the constitutionality of Pamph. L. 1945, ch. 34.
On May 1st, 1945, a rule discharging the said rules to show cause was entered in the Supreme Court.
There are four fundamental considerations in the light of which these appeals must be considered. They are:
1. The interest moneys in question are in the state treasury.
2. The state has a vested interest in those moneys.
3. No money shall be drawn from the treasury but for appropriations made by law.
4. The court can have no concern with the policy, justice or wisdom of the legislation, if the legislation is within constitutional limitations.
These appeals present three questions for determination. *Page 454
First Question. Do the present proceedings constitute a suit against the state which may not be maintained because the state has not consented thereto?
The majority answers that they are not and I concur; but for the following reason which is not set forth in the majority opinion. The appellants recognize the principle that suit may not be brought against the state without the state's consent and limited their application to the Supreme Court to the claim that the statute ordered the performance by a state officer of a ministerial duty which involved no element of discretion or judgment. Their application was based upon the premise that they could establish that the ministerial duty to be performed was set forth in language so clear, specific and unmistakable as to admit of no reasonable doubt. High on Ext. Legal Remedies 12, § 9;Cooper v. State Board, 114 N.J.L. 10; affirmed, 115 Id.115. Any litigant has the right to apply for mandamus on such a basis but unless the litigant establishes that the ministerial duty is clear, specific and unmistakable, the writ will not issue. If the application to the court were on any other basis, it would be a suit against the state.
Second Question. Do R.S. 54:24-11 and 54:24-13 require the Comptroller to pay to municipalities the moneys paid into the state treasury as interest on delinquent taxes assessed against Class II railroad property?
Appellants claim, among other things, that the general rule is that interest follows the tax in distribution and the majority opinion states the question to be "Is the interest on delinquent taxes against Class II railroad properties a part of the tax and does it follow the principal?" If the question before us were as stated by the majority, this would be a suit against the state and this court would have no jurisdiction because the state has not consented thereto. The fact is that the question *Page 455 as stated by the majority was not presented or argued and is not properly before the court. The question presented was as stated above. See appellant's brief, point II, page 32, respondent's brief point, 2, page 22.
All payments of state moneys during the period in question were controlled by Pamph. L. 1944, ch. 150 (the 1944-1945 Appropriation Act), which provides in section 4, "No money shall be drawn from the treasury except for objects as hereinabove specifically appropriated * * * and except such sums which are by law devoted to specific purposes, namely, * * * taxes for the use of taxing districts in this state * * *." Appellants rely on the provisions of R.S. 54:24-11 and 54:24-13 to support their claim that these interest moneys have been appropriated to them.
R.S. 54:24-11 provides "The entire amount of tax derived from the assessment of property described in subdivision II of section 54:22-1 of this title shall be allotted to and paid over to the local taxing districts through which the railroads or canals run, giving to each district the total amount of tax that may be so derived from such property of each railroad or canal company therein."
R.S. 54:24-13 provides "The comptroller shall transmit to each county treasurer a certificate showing the amounts allotted to the taxing districts therein, and shall, on or before December tenth of the year in which the taxes are payable, draw and transmit his warrant upon the state treasury, in favor of the several county treasurers, for the amounts allotted to their several counties. Each county treasurer shall forthwith and not later than December fifteenth, pay to the collector or other proper officer of each taxing district, the amount allotted thereto, deducting, however, the amount due for county taxes from the taxing district. The amount thus paid to the county and taxing district shall be at the disposal of the proper authorities for public purposes."
The answer to this second question depends upon the meaning of "the entire amount of tax derived from the assessment" of Class II property and of "Total amount of the tax that may be so derived from such property." That this language by express words, covers the principal of the tax, but does not *Page 456 by express words cover the interest, is not questioned, but appellants argue that the court could construe this language "as having the intent of directing the distribution of all of the tax receipts, including interest on arrears, derived from the assessment of Class II railroad property" and state that three "independent considerations conduce to this view." These three considerations are: (1) "the decision in Wilentz v.Hendrickson, 135 N.J. Eq. 244, is controlling;" (2) "the uniform contemporaneous practical construction of R.S. 54:24-11 and 54:24-13 is a conclusive criterion of the legislative intent" and (3) "the general rule is that interest follows tax in distribution."
It must be borne in mind that when the language of the legislature is not express and its intent is sought in any case involving the parting with any public right, whether money or property, the room for interpretation of language, not clear and unmistakable in itself, is greatly narrowed. "No public right can be taken away by mere inference or legal construction. It can only be by express grant." Water Commissioners of Jersey City v. Hudson, 13 N.J. Eq. 420; see, also, New Jersey InterstateB and T Commission v. Jersey City, 93 Id. 550. "The law wisely forbids any one to claim that the state has given up any portion of its property or prerogatives, without showing a grant plainly worded to that effect." State v. Kelsey, 44 N.J.L. 1. As was said by Dixon, J., in Little v. Bowers, 46 Id.300; affirmed, 48 Id. 320: "If to doubt whether the state has parted with any public right is to be resolved that it has not, certainly language can scarcely express the reluctance of courts to infer that this most important of all public rights has been surrendered."
"The intention of the legislature is to be obtained primarily from the language used in the statute." 59 C.J. 952. "The general rule is, that where a word or phrase occurs more than once in a statute, it should have the same meaning throughout, unless there is a clear indication to the contrary." Waldron v.Rowe, 91 N.J.L. 71. "Total Taxes" is used in only two other sections of the statute R.S. 54:24-3 and 54:24-4 and "total tax" in R.S. 54:27-1, and in the context the meaning of this language in each case is clear and could not include *Page 457 any interest on taxes. R.S. 54:27-6 speaks of "such state tax and the interest due thereon" and provides that an interested person so paying shall "be entitled to be repaid the amount of the tax and interest thereon" and in four other places speaks of "the tax and interest" indicating that when the intention of the legislature was to include interest on the taxes it was specifically so stated.
The question as to whether an appropriation of "tax" includes an appropriation of interest accrued on said tax was squarely before the court in Burlington County v. Martin, 128 N.J.L. 203. The statute in that case made an appropriation to the counties of "five per centum of the amount of transfer tax collected" and there the County of Burlington brought the same type of proceeding as now before us on the claim that in appropriating five per cent. of the "tax" the legislature intended to include an appropriation of the interest which had accrued on said tax. The Supreme Court decided that an appropriation of "tax" did not include an appropriation of the interest thereon and Brogan, C.J., speaking for the court said:
"It is conceded that the legislature did not, by express words, provide that counties should share in the interest assessed on inheritance taxes. Since we may not attribute to the legislature an intention that the statute does not contain, or by necessary inference support, we must ascertain whether the relators' theory, i.e., that interest follows and becomes part of the tax, is tenable. We do not think it is. In our view, taxes and interest are distinct things. A tax, not being a debt in the legal sense, does not automatically bear interest, if delinquent, unless the legislature so provides. Interest does not inhere in a tax as a legal incident. Camden v. Allen, 26 N.J.L. 398. Interest is an exaction for past due obligations and in essence is a penalty or in the nature of a penalty. Interest or penalty, however one characterizes it, is not taxation but rather a punitive sanction for compelling timely payment of the tax. It is compensation for delay in payment. (Dixon, c., v. JerseyCity, 37 N.J.L. 39.) In this case it is for non-payment within the time fixed by statute (compare Bugbee v. Tatum, 103 Id.600). We are of the opinion *Page 458 that the interest on this tax was not, nor did it become, part of the tax. The statute, supra, permits the county of decedent's residence to participate in the amount of the tax, nothing more. It follows therefore that the relators' claim to a share of the interest is invalid."
In affirming this Supreme Court judgment, 129 N.J.L. 92, this court, while adding further grounds, approved the exposition of the law as set out in the opinion below.
In Wilentz v. Hendrickson the question was whether a forgiveness of interest on past due railroad taxes constituted an appropriation of money in violation of article I, section 20 of our state constitution. The court held that the "debt due from the company to the state" mentioned in R.S. 54:27-4 consisted of the unpaid principal taxes and the delinquent interest thereon and the state had a vested right in and to that interest. The distinction recognized in the Wilentz case between tax "debt" and "taxes" is apparent in the following quotation from the opinion: "We are satisfied therefore, that in the circumstances exhibited and the law applicable thereto, that the interest was compensatory and not penal, and that the state had a vested right in and to that interest, and that this interest, together with the principal taxes, constituted the tax debt due from each of the private railroad companies to the state." The question under consideration here was neither considered nor decided inWilentz v. Hendrickson, and nothing in the opinion in that case says or implies that an appropriation of the "tax" carries with it an appropriation of the interest thereon. I conclude thatWilentz v. Hendrickson gives no support to appellants' contention.
Appellants claim that "uniform contemporaneous practical construction of R.S. 54:24-11 and 54:24-13 is a conclusive criterion of legislative intent;" and the majority in reaching the conclusion that "the interest is an integral and inseparable part of the tax debt and is to be distributed on the same basis as the tax principal" gives as one of three reasons "the uninterrupted contemporaneous construction placed upon these actions (sections) for years by the respondent-comptroller's predecessors in office is most persuasive in reaching this conclusion." Aside from the question whether contemporaneous *Page 459 construction by a state official, no matter how long continued, can extend the express language of an appropriation act, the conceded facts show that there was no "contemporaneous construction" that the appropriation included interest. "Contemporaneous construction" has a definite meaning; that is that it must commence at or about the time the statute went into operation. When did these acts become operative? The language in question had its source in Pamph. L. 1897, ch. 69, which provided "The taxes which shall be hereafter assessed upon" Class II railroad property "shall be allotted to and paid over to the various taxing districts * * * giving to each such district thetotal amount of tax that may be so derived * * *" and this act was passed to appropriate to municipalities, in which Class II property was situated, the entire amount of taxes assessed against such property in place of the share theretofore appropriated; namely, an amount which could not exceed two-thirds of such tax (see Pamph. L. 1888, ch. 208; Pamph. L. 1884,ch. 101; Pamph. L. 1873, ch. 400). In 1905, when the rate was changed, the same appropriation to such municipalities was continued by using "the entire amount of tax derived from the assessment of" Class II property and "the total amount of tax that may be so derived." The identical language was carried into the Revised Statutes in 1937 by R.S. 54:24-11. The record shows that from 1921 to 1940 (with the exception of three years) interest received by the state on delinquent Class II property in amounts ranging from $.07 in 1928 to $97,046.77 in 1922, was paid annually to the municipalities. No suggestion is made that such construction was placed upon the statute from 1897 to 1921 or that any such interest was paid during those years. This span of almost a quarter of a century destroys any vestige of merit in the asserted argument based on contemporaneous construction.
Appellants claim that the general rule is that interest follows tax in distribution. They cite twenty-three cases, all from western states, to support this claim. Examination of these cases discloses that in Crookston v. Polk County (Minn.), 82N.W. Rep. 586, a statute requiring the county treasurer to pay to the city "such taxes, together with all *Page 460 interest and penalties which shall be collected on account of the same" was attacked as unconstitutional; Fergus Falls v. OtterTail County (Minn.), 93 N.W. Rep. 126, construed a statute providing "such taxes, when received, together with all interest and penalties which may be collected on account of same" shall be paid by the county to the city levying the tax; the other cases dealt with attempts by a county official (who was merely a statutory collecting agency for taxes levied by the state, a municipality or a school district and in which the county had no interest either as to principal or interest) to retain for the county moneys received by him as interest on delinquent state, municipal or school district taxes. The rule enunciated in these cases has no application to one who is not a mere collecting agency but has a vested interest in both tax and interest thereon and no case cited even suggests that it has.
I find that an appropriation of the interest moneys in question, in the words of Gummere, C.J., in Mausoleum Builders v. State Board, 90 N.J.L. 163, "does not appear `by language so clear and unmistakable as to leave no doubt' of the existence of that purpose; and to doubt is to deny."
Third Question. Are chapters 4, 5, 6 and 34 of 1945 unconstitutional enactments?
The whole attack made by appellants upon chapters 4, 5, 6 and 34 is predicated on the premise that the interest moneys in question were appropriated to the municipalities by R.S. 54:24-11 and 54:24-13. Since my conclusion is that no clear and unmistakable appropriation of such interest moneys appears, the premise of appellant falls, and with it falls all attack upon the constitutionality of chapters 4, 5, 6 and 34 of 1945.
Statements are made by the majority in support of its answer to this third question which should not go unchallenged. I cite as an example "It is axiomatic that a draft by the state upon the municipalities for the support of the state government, or a subject of primary concern to it, must *Page 461 apportion the burden equally and fairly among the municipalities for, in the final analysis the local owners of real and personal ratables are affected, since the moneys thus withdrawn are necessarily, both in theory and practice, reflected in their tax bills." No authority is given for this statement and I do not agree that it states the law of New Jersey. If it were the law, it would invalidate the tax on Class I railroad property which for more than seventy years has been levied by and for the use of the state (this Class I property consists of the land in each municipality not exceeding 100 feet in width over which the main stem of any railroad runs); it would invalidate the state school tax which has been levied for more than forty years (under which ten per cent. of the amount raised in the different municipalities is held by the state and distributed to the poorer school districts of the state); it would also invalidate the state gas tax and all other taxes of the same nature.
The importance of the constitutional question of the relative rights of the judiciary and the legislature involved in this case, far transcends the admitted importance of the case itself to the municipalities and the state. Even though the equities may be all on one side in a given case, these equities may not be put in the scale to increase the measure of judicial power. It is the duty of the judiciary to see that no one department of government encroaches on the prerogatives of another. 16 C.J.S. 430. By the same token, the judicial branch of the government cannot encroach on or interfere with the legislative branch in the proper exercise of its constitutional powers either by enacting, amending or nullifying laws or by judicial construction. 16C.J.S. 446. It is to the legislature and not to the court that our constitution has granted the power to make appropriations and except for constitutional inhibitions on that power, the legislature is answerable to the people alone for any unjust or unwise exercise of its power. In matters of appropriation particularly, the courts never should read into any appropriation act an inclusion not clearly required. It must be remembered that an error committed in extending an appropriation act by judicial construction cannot be remedied, while an error on *Page 462 the part of the court in restricting the effect of an appropriation act is always open to correction by the legislature. In my opinion, the majority conclusion results in a clear usurpation by the judiciary of a purely legislative function.
Mr. Justices Colie and Oliphant and Judges Wells and Freund wish to be recorded as concurring herein.