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On these facts the trial court charged the jury that "if the difficulty was due wholly to the mistake of the conductor of the South Orange car, and if the ten-minutes regulation was a reasonable one, then the verdict ought to be for the defendant, for in that case the plaintiff will have to sue the company under another form of action, in an action upon the contract, and not in this action, an action in tort." This instruction was erroneous. If the plaintiff was, by his contract with the company, entitled to ride upon the New York car without the payment of an additional fare, provided he boarded that car within 10 minutes after leaving the South Orange car, and was entitled to a proper transfer ticket as an evidence of his right to do so, then an action of tort will lie for his wrongful expulsion, unless by his own fault or carelessness he aided in producing the situation which lead to that expulsion. Consolidated Traction Co. v. Taborn, 58 N. J. Law, 1, 32 Atl. 685. If inquiry on his part would have informed him of the rule which made it necessary that the transfer ticket should be used within 10 minutes of the time punched upon it, and if due care on his part required that he should make such inquiry, then his failure to do so would have been a contributing cause to the injury which he complains of, and would be a bar to his right to recover.

The judgment under review should be reversed.

(68 N. J. L. 670)

ATLANTIC CITY v. GROFF.

GARRETSON, J. The plaintiff in error brought ejectment against the defendant in error to recover a piece of land 50 feet wide by 200 feet long, being an extension of New York avenue northerly from the north line of Baltic avenue. Prior to March 1, 1894, New York avenue extended to the northerly line of Baltic avenue, and the plaintiff in error claims that by virtue of a deed given on that day the owner of the locus in que dedicated it to public use for a street as, n extension of New York avenue. This deed, with various acts of the then owner, was introduced in evidence to prove dedication, and the defendant, on her part, also introduced in evidence acts by the owner of the locus in quo tending to show the exercise of ownership, and a purpose inconsistent with its dedication; and this evidence, being submitted to a jury, resulted in a verdict for the defendant, and this writ of error brings up the judgment entered upon this verdict.

It appears from the evidence that October 19, 1882, Richard Hackett and wife conveyed to Edward Champion a tract of land on the northerly side of Baltic avenue, 165 feet by 200 feet, the easterly 50 feet of which is the locus in quo. In 1884 Champion moved a building about 18 or 20 feet long upon the land in question, which he used for some years as a carpenter shop, and did subsequently rent it to an upholsterer, and then for a grocery. In 1885 Champion built a house fronting on Baltic avenue, and near the westerly line of what would be New York avenue, if extended northerly, and in 1888 altered it so that the rear part might be used by a separate family, and made an entrance to it from what would be New York avenue. March 1, 1894, Champion and wife conveyed to Justus Siebert a lot of land in the rear of the house which he had built, by the following description: "Beginning at the northeast corner of Justus Siebert's land on

(Court of Errors and Appeals of New Jersey. the line of Daniel Morris' land and runs from I had any more conversation after that in regard to the land in question; that is, with the street-the intended New York avenue. We had no more talk over that, only what we had before." We therefore find no error in the exclusion of the question.

March 2, 1903.) DEDICATION-QUESTION FOR JURY-EVIDENCE.

1. The words in a deed, "to the intended New York avenue line, thence (2) southwardly along said intended New York avenue line," are not of themselves sufficient, in law, to amount to a dedication by the grantor of the deed of other of his lands for a public street which shall be an extension of the street named.

2. In such case dedication is a conclusion of fact to be drawn by the jury from the circumstances of each particular case, and the deed mentioned, with the language therein used, is one of the circumstances to be submitted to the jury upon the question of dedication.

Magie, Ch., and Van Syckel, Garrison, and Hendrickson, JJ., dissenting. (Syllabus by the Court.)

Error to Circuit Court, Atlantic County. Action by Atlantic City against Catherine Groff. Judgment for defendant, and plaintiff brings error. Affirmed.

Godfrey & Godfrey, for plaintiff in error. George A. Bourgeois, for defendant in error.

thence eastwardly along Daniel Morris' line 66 feet more or less to the intended New York avenue line, thence (2) southwardly along said intended New York avenue line 120 feet to a post, thence (3) westwardly along the line of Edward Champion's land 58 feet to the line of Justus Siebert, thence (4) northwardly along said Siebert's line 120 feet more or less to the place of beginning." The claim of the plaintiff is that the words, "to the intended New York avenue line, thence (2) southwardly along said intended New York avenue line," operated as a dedication by the grantor in that deed, and the owner of the premises in question, of the locus in quo to public use as a street. That the plaintiff did not regard these words as a complete dedication appears from the fact that it introduced evidence of other facts and acts by the grantor in that deed while still owning the locus in quo, from which, with this deed, the jury was asked to infer the dedication.

If it is unequivocally manifested by the

Exception was also taken to the admission of the deed from Champion to Groff, the defendant, for the locus in quo. This was the foundation of the defendant's title, and was a fact bearing upon Champion's intention to dedicate, and so was competent.

Other exceptions were taken to the admission of testimony to rebut the evidence of dedication upon the ground that the deed from Champion to Siebert, of itself, dedicated the land for a public street; but, as that deed was itself only one fact going to show dedication, all evidence of facts by the grantor tending to show no dedication were competent evidence for the defendant.

We find no error, and the judgment below

instrument or act under which dedication is
claimed that it is the intention of the then
owner to dedicate, it will be for the court
to so declare; but, if not, dedication is a con-
clusion of fact to be drawn by the jury from
the circumstances of each particular case;
the whole question, as against the owner of
the soil, being whether there is sufficient evi-
dence of an intention on his part to dedicate
the land to the public use as a highway. 9
A. & E. Enc. of L. (2d Ed.) 34. The facts
and circumstances relied upon to prove the
existence of an intent to dedicate on the part
of the dedicator must be of a positive and
unequivocal character. If the dedication is
made to depend upon a written instrument,
the language of the instrument must positive-
ly and distinctly show an intention to dedi-
cate, and the dedication must arise at once
from the dedicatory act, or, if some time
be specified, then at that time. The language
used in the deed is not positive and unequivo-
cal. "The intended New York avenue line" is affirmed.
might mean that at some future time the
grantor in the deed would dedicate the locus
in quo for a public street. It might also
mean that the public authorities were intend-
ing to extend New York avenue northerly
beyond Baltic avenue, so as to embrace the
locus in quo, or this language might be re-
garded merely as a description. A mere ref-
erence to a street or road, or a recital of its
existence, simply for the purposes of location
and description, or to give the boundaries of
the land conveyed, is not sufficient to make
a dedication. In the present case the descrip-
tion in the deed given by Champion to the
defendant, "beginning in the northerly line
of Baltic avenue where the same would be
intersected by the easterly line of New York
avenue if continued across said Baltic ave-
nue," is only description, and not dedication.
We think, therefore, that this description in
the deed from Champion to Siebert was a
fact, with other facts offered in evidence, to
be submitted to the jury, to determine wheth-
er when this language was used the grantor
in that deed, and the then owner of the locus
in quo, intended by it to dedicate the prem-
Ises in question for a public street.

Siebert, the grantee in the deed in which it is claimed that the dedication arises, was asked "What conversations, if any, did you have with Mr. Champion [the grantor in that deed] subsequent to the time of taking your deed, about the sidewalk on New York avenue, if extended?" This question was excluded, and its exclusion assigned for error. Declaration by Champion while he owned the locus in quo would be competent, but declarations made after he had conveyed to the defendant would be hearsay, so that the question was too broad. But subsequently the same witness was asked the question, "What conversations, if any, did you have with Mr. Champion just subsequent to your buying this land, after you got your deed?" An objection to it being overruled, answer: "I don't think

54.Α.-51

MAGIE, Ch., and VAN SYCKEL, GARRISON, and HENDRICKSON, JJ., dissent.

(69 N. J. L. 104)

RICCIO v. MAYOR, ETC., OF CITY OF
HOBOKEN.

(Supreme Court of New Jersey. March 30,

1903.)

PUBLIC SCHOOLS-CONSTITUTIONAL LAW-UNI-
FORMITY OF PROVISIONS-GENERAL LAWS.

1. In so far as the Legislature relegates to the various municipalities of the state the management and support of free public schools within their borders, that subject becomes part of the internal affairs of the respective municipalities; and a law, which confers the same powers and imposes the same duties respecting that subject upon any constitutional class of municipalities, is general, in the constitutional

sense.

2. "An act to establish a system of public instruction," approved March 26, 1902 (P. L. p. 69), is not rendered unconstitutional by the fact that its provisions respecting the support and management of free public schools in cities differ from its provisions on that subject in other municipalities.

(Syllabus by the Court.)

Certiorari by Michael Riccio against the mayor and council of the city of Hoboken to review an ordinance. Affirmed.

Argued February term, 1903, before GARRISON, SWAYZE, and DIXON, JJ.

Francis H. McCauley, for prosecutor. Thomas N. McCarter, Atty. Gen., for the State.

DIXON, J. In pursuance of a resolution of the board of education of the city of Hoboken, and of a determination by the board of school estimate, the mayor and council of the city, in October last, adopted an ordinance providing for the issue of city bonds to the amount of $130,000, to meet the expense of purchasing land and erecting thereon a new schoolhouse. These proceedings schools. In the present case we are required, which, however, still recognized town

are based on the act to establish a system of public instruction, approved March 26, 1902 (P. L. p. 69), and their legality is now assailed on the ground that that act is unconstitutional.

The pertinent provisions of the Constitution are found in article 4, § 7, the sixth paragraph of which requires the Legislature "to provide for the maintenance and support of a thorough and efficient system of free public schools for the instruction of all the children in this state between the ages of five and eighteen years," and the eleventh paragraph of which forbids the Legislature to pass local or special laws "regulating the internal affairs of towns and counties," or "providing for the management and support of free public schools." These paragraphs became part of the Constitution in the year 1875. The particular objection urged against the act of 1902 is that its provisions respecting the management and support of free public schools in cities differ from its provisions on the same subject in other municipalities, and therefore are special. The chief reliance of the objector is found in the opinion delivered for the Court of Errors in Lowthorp v. Trenton, 62 N. J. Law, 795, 44 Atl. 755. That opinion, however, was deprived of much of the force otherwise attributable to it by the later decision of the same court in Hermann v. Guttenberg, 63 N. J. Law, 616, 44 Atl. 758. As a decision, the Lowthorp Case is scarcely relevant, for it was only to this effect: that the mere form of municipal government cannot be coupled with population to make the basis of a statutory classification for enactments regarding the support and management of public

management of public schools were, previous to the year 1875, committed to the various municipalities of the state as part of their internal affairs. As early as September, 1682, an island in the Delaware river was given by the assembly of West Jersey to the town of Burlington for the maintenance of a public school (Grants & Concessions of N. J. p. 445), and in 1693 and 1695 the inhabitants of each town within the province of East Jersey were empowered to maintain a school within the town by public tax (Id. 328, 358). In 1820 the inhabitants of each township in the state were authorized to raise by tax such sum of money as the town meeting should vote, to be expended under the direction of the town committee for the education of poor children residing in the township. Elm. Dig. 577. In 1829 "An act to establish common schools" provided for the division of the state appropriation among the townships of the state, and the control of common schools by the township, or by school districts created by the township authorities. P. L. 1828-29, p. 105. In 1831 this act was repealed, and a new statute substituted, but, although the school district was given a more independent character, the state funds were still apportioned among, and the local funds were raised by, the several townships. P. L. 1830-31, p. 145. Similar conditions were preserved in the act of 1837-38 (P. L. p. 246), and continued until 1867 (see Nix. Dig. 733). Concurrently with these general statutes, various local charters were enacted conferring upon particular cities special powers for the maintenance of public schools. In the act of 1867 (P. L. p. 360) a system of state control was establish

ed to consider, not a statutory classification, but what, in Hermann's Case, was declared to be a classification adopted by the Constitution itself, according to which cities, boroughs, towns, townships, and villages form distinct classes for legislation respecting their internal affairs. The present question, therefore, is whether the Legislature can employ this constitutional classification in legislating for public schools.

In considering this question, attention may first be given to the paragraph of the Constitution prohibiting local and special laws concerning the internal affairs of towns and counties. If the management and support of free public schools can be included among such affairs, then the broad rule laid down in Hermann's Case would fully support the position that a law prescribing the mode in which all cities should deal with the subject would not violate that prohibition. It must be remembered that the Constitution is a practical instrument, and therefore an important element in its correct interpretation and construction will be found in the usages prevailing when its provisions were adopted. Examined from this point of view, it seems reasonably clear that the support and

ships and cities as possessing special powers and duties in reference to the common schools within their borders, and in the numerous municipal charters passed between 1867 and the adoption of the constitutional amendments in 1875 will be found special provisions for particular municipalities on that subject. Indeed, it may be truthfully said that at no time prior to the adoption of the amendments of 1875 can anything be discovered in our legislative history on the subject of public education which does not point to the support and management of common schools in cities and in other municipalities as a matter more or less of local concern. While the state made some provision for their support, it was confessedly inadequate, and the determination of the additional means to be furnished was treated as an internal affair of each locality, which was likewise charged with the responsibility of the proper expenditure of all the funds appropriated. Consequently, notwithstanding the general interest of the state at large in the education of its citizens, I think that the support and management of public schools may be treated by the Legislature as an internal affair of the various municipalities denominated towns in this paragraph of the Constitution. Certain ly the education of youth concerns the local community as much as does the prosecution of those who violate the laws of the state, and an important incident of such prosecution was made by legislation an internal affair of the counties. Passaic v. Stevenson, 46 N. J. Law, 173. A like power must exist in the Legislature respecting schools.

* *

* * *

* *

If, therefore, we had to deal only with the clause requiring the internal affairs of towns to be regulated by general laws, there could be no hesitation in holding that under the Hermann Case a statute providing, for each of these classes of municipalities, a different method of managing and supporting public schools, would be constitutional. But it is urged that the clause which forbids local or special laws providing for the management and support of public schools places this subject outside of the internal affairs mentioned in the other clause, and requires it to be dealt with on a footing different from municipal classification; otherwise, it is argued, the school clause is rendered meaningless, as mere tautology. This argument has, however, but little force in the construction of fundamental laws. Prof. Story justly said: "Another rule of interpretation of the Constitution is that the natural import of a single clause is not to be narrowed * * simply because there is another clause which might otherwise be deemed * within its scope," and he quotes from the Federalist that "tautologies are to be ascribed sometimes to the purposes of greater caution, sometimes to the imperfection of language, and sometimes to the imperfection of man himself." 1 Story's Com. Con. § 449. But on closer examination it will be perceived that the view above favored by us does not reduce the school clause to a pleonasm. The education of children is a matter which concerns the state at large, as well as the local community in which they dwell, and may, therefore, reasonably be regarded in either aspect. As a concern of the local community, it falls within the clause for the regulation of internal affairs, while as a concern of the whole state it falls within the other clause. The Legislature has dealt with it from both points of view. The state appropriations treat it as involving the good of the state, while the local provisions treat it as of narrower moment. But in either aspect the laws relating to it are required by the Constitution to be general, and what we are now deciding is simply that legislation treating it as a matter of local concern is general if it applies to every member of any single class of municipalities as defined by the Constitution. The decision in Hermann's Case seems to afford direct support for this conclusion. Beside the inhibition of special and local laws for regulating the internal affairs of towns and counties stands the inhibition of such laws for laying out, opening, altering, and working highways;

but in the case cited the law under consideration was one relating to street improvements, and limited to towns eo nomine. Nevertheless, that law was maintained as general, because it applied to an entire constitutional class. By parity of reasoning, a law relating to the support and management of public schools will be, general if it applies to such a class. See, also, Lewis v. Jersey City, 66 N. J. Law, 582, 50 Atl. 346, and Allison v. Corker, 67 N. J. Law, 596, 52 Atl. 362.

There remains to be noticed the sixth paragraph of the Constitution, above cited, enjoining upon the Legislature the duty of providing a thorough and efficient system of free public schools for the instruction of all the children of the state between specified ages. While this clause is mandatory, it is not prohibitive. It points out the object at which the Legislature should aim, but it does not invalidate efforts that fall short of the desired result. If the system devised be inefficient and partial, this clause will not render it utterly abortive. Alongside of this imperative duty to enact a perfect and universal system, there still remains the power to do that which, although inadequate, is useful. This constitutional duty does not interfere with the validity of a general law which deals with free public schools as state institutions, or which authorizes any constitutional class of municipalities to deal with them as local institutions.

Our conclusion is that there is no sufficient reason given for holding the statute unconstitutional, and the proceedings under review should, therefore, be affirmed, with costs.

(64 N. J. E. 408)

LAMPREY et al. v. WHITEHEAD. (Court of Chancery of New Jersey. April 14, 1903.)

WILLS-NATURE OF ESTATE-DEED BY
DEVISEE.

1. Under a devise to which the provisions of section 10 of the descent act (1 Gen. St. p. 1195) apply, while an estate in the lands devised vests in any child of the devisee for life, it is an estate which will be devested by the death of such child, leaving issue, during the life of the devisee for life.

2. A title made by a conveyance executed during the life of the devisee for life, from a child having a vested estate under the provisions of that section, being subject to be devested in the event of the death of such child, leaving issue, during the life of the devisee for life, is not a marketable title which a purchaser ought to be compelled to take by a decree for specific performance.

(Syllabus by the Court.)

Bill by Jennie T. Lamprey and C. P. Lamprey, her husband, against Henry C. Whitehead. Dismissed.

Thomas M. Moore, for complainants. Arthur S. Corbin and John R. Beam, for defendant.

MAGIE, Ch. The bill in this cause seeks a decree compelling the specific performance

by the defendant of a contract in writing | conveyed said lands to the complainant Jen

made by him with the complainants for the purchase of certain lands in the city of Passaic. By the terms of the contract, complainants agreed to convey to the defendant the said lands in fee simple, free from all incumbrance, except the right, if any, of any child born to one Evaline Brainerd (a former owner of the premises) after the date of the contract; and the defendants agreed to pay complainants, on delivery of the deed for said lands, the sum of $8,000. The complainants aver that they tendered to defendant a conveyance which would have vested in him a title to the lands in question in fee simple, free from any incumbrance except that mentioned in the contract, and that defendant refused to accept the same, or to pay the consideration which he had agreed to pay therefor.

The defendant, by his answer, admits the making of the contract, the tender of the conveyance to him, and his refusal to accept the same and pay the consideration. He asserts that he ought not to be compelled to accept the conveyance or to pay the consideration, because the title which would have been vested in him by the conveyance is not one of a merchantable character. The precise point of his objection is that the title which he would thereby acquire is subject to be devested by the happening of a certain contingency.

*

* *

*

The complainants, by their bill, set up their title to the premises thus: The lands were owned in fee simple by Nathan Stevens, who died seised thereof in 1885, leaving a last will and testament, executed so as to pass the title to real estate, and bearing date July 1, 1880. By the sixth section of that will, he devised to his daughter, Evaline Brainerd, "for and during her natural life two vacant lots of land ** in the city of Passaic in the state of New Jersey and upon the death of Evaline A. Brainerd leaving issue, I give and devise all the above mentioned real estate to such issue, and in case there should be no issue her surviving, then I give and devise * * said lands at Passaic to my sons Melvin Stevens and Clarence Stevens as tenants in common." The two lots which were thus devised comprise the lands which were the subject of the contract in question.

*

Evaline A. Brainerd had two children, Grace E. Brainerd and Allen W. Brainerd, who in 1894 were both of age. On the 22d day of November, 1894, the said children, Grace E. and Allen W. Brainerd, and Melvin Stevens, all being unmarried, conveyed all their right, title, and interest in said lands to the said Evaline A. Brainerd, and on November 26, 1894, Clarence Stevens, also unmarried, conveyed his right, title, and interest in the said lands to Evaline A. Brainerd. On November 23, 1894, Evaline A. Brainerd and her husband, by a deed with warranty,

nie T. Lamprey.

The bill asserts that Allen W. Brainerd afterward died unmarried; that Grace E Brainerd, after the execution of her deed to Evaline A. Brainerd, intermarried with one John T. Underwood, and is now living with her said husband, with possibility of issue hereafter to be born.

The defendant admits, by his answer, the facts asserted in the bill above mentioned, and contends that if Grace E. Underwood should die before her mother, Evaline A. Brainerd, leaving issue, such issue would become seised of the said lands, and that the title made by the conveyance from Grace E. Brainerd to Evaline A. Brainerd would be wholly defeated by the happening of such contingency.

It does not admit of any doubt that the devise in the will of Nathan Stevens is one which falls within the provisions of the "Act further regulating the descent of real estates," passed June 13, 1820, and which have been in force since the passage of that act, and are now included as sections 10 and 11 of the "Act directing the descent of real estates." 1 Gen. St. p. 1193. The devise is a counterpart, in all respects except two, of the devise considered in the celebrated case of Hopper v. Demarest, 21 N. J. Law, 525; Demarest v. Hopper, 22 N. J. Law, 599. The devise in that case was to testator's daughter Catharine, for and during her life, and after her death the lands devised were to be equally divided among her heirs. The devise before us is to testator's daughter Evaline for life, and upon her death to such issue as she may leave surviving her, with the condition of a devise over in case of no issue surviving her.

The section of the act of 1820, which is now section 10 of the descent act, was admitted to be applicable to the devise which was the subject of consideration in Hopper v. Demarest, both in the Supreme Court and in the Court of Errors. The provisions of that section are equally applicable to the case in hand. It is thereby enacted that if any lands are thereby devised to any person for life, and, "at the death of the person to whom the same shall be devised for life, to go to his or her heirs or to his or her issue," then "said lands shall go to and be vested in the children of such devisee equally, to be divided between them as tenants in common in fee." In expressing the opinion of the Supreme Court upon the construction of this statute, in its application to the devise considered in Hopper v. Demarest, Chief Justice Green, with the concurrence of Justices Whitehead and Randolph, declared that the devise in the will then in question would have given to the daughter, to whom the testator devised it for life, an estate in fee simple, by virtue of the rule in Shelley's Case. He further held that the first section of the act of 1820, now section 10 of the descent

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