Sisters of Charity v. Cory

Green, J.

(dissenting). It is very probable that .1 agree with my brethren in their views as to the meaning, abstractly considered, of section 3, subsection 4, of “An act for the assessment and collection of taxes,” approved April 8th, 1903. Pamph. L., pp. 395, 396. It is even probable that I would agree with them as to the force and effect of this legislation, applied concretely in the present cases, if these were cases of first impression. Nevertheless, I find myself unable to agree with my brethren in voting to reverse the judgment of the Supreme Court. My inability arises from the fact, conceded by the Supreme Court (43 Vroom 429), and also in the prevailing opinion, that a reversal cannot be had without overruling Sisters of Charity v. Township of Chatham, 23 Id. 373 (1890), and this I do not think it right to do.

Before passing to the reasons for my vote, I think it necessary to remark that the older case should, in my judgment, be freed from the aspersion cast upon it by the learned justice *708who dissented therein — an aspersion repeated in somewhat different form in the opinion now prevailing. The words of the dissenting justice were (23 Vroom at p. 378) : “The public ought not to be concluded on a point not raised or put at issue, as to which they were not notified to produce evidence, and which was not raised in the argument.” In my view, the issue raised in the older case was, taxable or not. Upon this issue counsel for the charity argued exempt, for statutory reason a; counsel for the township argued taxable, for constitutional reason b; with the latter the Supreme Court (22 Id. 89) agreed, but this court (23 Id. 373), reversing the Supreme Court, said exempt, for statutory reason c. Everywhere and always the question, taxable or not, was before the mind; only the views respecting it differed. As I have had occasion to say in another place, this court is not so trammeled by rules, and was not in 1890 so trammeled, as to be obliged to decide a question contrary to its opinion of the right merely because it is or was unable to agree in detail with the view of that question espoused by one or the other of contending counsel.

Examining the cases in hand, we find that the facts respecting the property of tire prosecutor and the use thereof are the same as in the older case. The Supreme Court, admitting the binding force of the earlier decision, said (43 Vroom, at p. 429) : “The only question to be decided is, whether the land that has been assessed against the prosecutor is exclusively devoted to the same charitable purposes to* which the buildings thereon are devoted, as illustrated by such appellate decision. Of this, there is in the testimony before us plenary proof."

We find, also> that the statute, construed and applied, is the same as in the older case. The Supreme Court said (43 Vroom, at p. 427) : “In that case the identical language of the present statute was before the court of last resort." The opinion now prevailing observes: “In our opinion, in the earlier case, after reciting the exempting provision of the statute [which remains unchanged except in its phraseology], we proceeded * *

*709The proposition, therefore, of the prevailing judgment is that, in a case involving like facts and like law, the solemn adjudication of more than sixteen years ago is to be disapproved and overruled, the maxim "stare decisis” notwithstanding. And (cm bono?) because, as the opinion, reduced to its. essence, appears to me to answer, it were better so.

But, if the maxim “stare decisis” is not of itself sufficient, there are other grounds on which I do not think it right to overrate the older case, and I mention them very briefly.

The case in 23 Vroom 373 et seq. has been cited by the Supreme Court in Firemen’s Relief Association v. Johnson, 33 Id. 625 (1898); Paterson Rescue Mission v. High, Receiver, 35 Id. 121 (1899); Litz v. Johnston, Collector, 36 Id. 169 (1900), and by this court in Children’s Seashore House v. Atlantic City, 39 Id. 391 (1902). How far did the decision now to be overruled enter into those cases as one foundation stone, and how far are they to be shaken by the withdrawal of the one stone? T cannot answer with certainty in advance of a testing, but that litigants and counsel may regard those cases as more open to question than they were before this day, I am not at liberty to doubt.

In State of New Jersey v. Taylor, 39 Vroom 276 (1902), the constitutionality of a section of the Criminal Procedure act was attacked. Asserting that the question had been laid at rest by Brown v. State of New Jersey, 33 Id. 666 (1898), this court said, only four years later (39 Id., at p. 279): “Such a declaration must be accepted as final. This court will not review, much less overturn, a decision made by it upon a matter which was directly presented for its determination, except upon the fullest conviction that it was erroneous. And it will not do so even then' when the decision has been so long acquiesced in and acted upon that a return to the 'proper principle would disastrously affect existing interests.” See, also, the language of this court in Newark v. Schuh, 7 Stew. Eq. 265 (1881). Are we now, by overruling a solemn decision of four times four years ago, to open the door of this court for assaults upon other decisions which someone may deem objectionable? I fear that we are at least setting the gates ajar.

*710In another case just decided, a majority of this court says: “When a decision upon a point of law has been made upon solemn argument and upon mature deliberation, the community have a right to regard it as a just declaration or exposition of the law, and to regulate their actions by it. When a rule has once been1 deliberately adopted and declared, it ought never to be disturbed by the same court except for very urgent reasons, and upon a clear manifestation of error. See 1 Kent Com. 475.” If this be a satisfactory ratio decidendi in that case, why not in these? A persistent adherence to one statutory exposition is hardly more important to-the public than another.

Believing that more harm is likely to be done by overruling Sisters of Charity v. Township of Chatham, 23 Vroom 373, than by adhering to' its principle, I am constrained to vote to affirm the judgment under review.

For affirmance — Green. 1. For reversal — The Chancellor, Chief Justice, Fort, Garrets on, Hendrickson, Pitney, Reed, Bogert, Vre-DENBURGIT, VROOM, GRAY, DlLL. 12.