*1 JERSEY, PARSONS, STATE OF NEW BY THEODORE ATTORNEY-GENERAL D. JERSEY, O PLAINTIFF-RESPONDENT, F THE STATE OF NEW v. OTIS ELEVATOR COM P ANY, CORPORATION, DEFENDANT-APPELLANT, A GRENTHAL, ABRAHAM SUBSTITUTED RECEIVER OF CO., DEFENDANT-RESPONDENT, J. B. & SKEHAN RHODES, AIDA M. INDIVIDUALLY AS AND EXECU RHODES, TRIX OF THE WILL OF FRANK C. DEFEND ANT. Argued September 22 and 1952 Decided March 1953.
(1) *2 the appellant the cause for Mr. Waldron M. Ward argued *3 Ward, & Pitney, Hardin Elevator Company (Messrs. Otis Hazlehurst, Mr. Arthur J. P. Jr. and Mr. Robert attorneys; Martin, Jr., brief). on the the Poznalc, Van Attor- appointed by
Mr. Aaron specially the the State respondent cause for ney-General, argued Jersey. New the cause for Abraham Phillips argued Perlman
Mr. Sol B. Skehan & Co. Grenthal, receiver of J. substituted by of the court was delivered The opinion New instituted C. The Jersey J. Vanderbilt, of the action in the Division Chancery Superior this 1946, c. Escheat Act of the pursuant provisions (L. to 2:53-15 to J. S. A. 155, as amended and supplemented; 32; the Otis 28), now N. J. S. 2A:37-11 to alleging certain or had in its Company custody possession Elevator that had only, described terms general personal property, 2:53-21, in N. J. A. escheated the State. As 8. provided by Elevator was ordered Company Otis personal prop to retain all escheatable complaint, answer further until the order in its custody possession then erty of the court and to its disclose to the answer plaintiff such information such escheatable regarding personal prop as was erty and would pertinent cause a determination speedy of the action. After successive stipulations extending time to answer until the final disposition by this court of the test case of State v. 5Co., Standard Oil N. J. 281 (1950), affirmed S.U. 71 Ct. 95 L. Ed. 1078 (1951), the Otis Elevator filed its answer forth all Company setting the information called court, the order of the including detailed schedules names last known ad showing dresses of record owners all unclaimed personal prop in its erty custody or with the nature possession together and amounts of such In addition in answer property. Otis Elevator asserted various defenses Company relating jurisdiction court, of the of the constitutionality Act, Escheat and the applicability of statute of limi tations. answer of the Otis
According Elevator Company, bulk of the unclaimed in its personal property custody or consisted of possession stock in the name of registered Frank C. Rhodes. Claim to this stock was made Abraham Grenthal, substituted receiver of the firm of B. Skehan Co., in & an independent action instituted in New York the Otis Elevator Mrs. Frank against Company C. Rhodes, as executrix of the estate her deceased husband. institution New York action occasioned an amend- ment of the complaint filed this escheat so as proceeding include Grenthal and Mrs. Rhodes as defendant; parties *4 an amendment of the answer filed the Otis Elevator Com- as an forth additional defense the pany setting possibility it double subject liability; and the might filing answer by Grenthal of an amended complaint claiming the Rhodes’ stock. Default was entered Mrs. Rhodes against failure for to answer. At the claim Grenthal hearing but Otis Elevator fully litigated, Company, it although answer, had raised various in its defenses did not contest any the escheat of of the personal by the property sought State.
The judgment 3, 1952, of the court entered March on disallowed the claim; Grenthal declared all the personal property reported the Otis Elevator its answer Company to have escheated to the State and directed that be turned over Treasurer; to the State Otis Elevator discharged of all Company liability to the escheated respect prop erty; directed that State Treasurer out of pay escheated $7,000 a counsel fee of costs and plus disbursements to the had attorney who the action prosecuted State, $2,788.30 for the a fee of a reward the escheator, and a fee of $100 to officer to take appointed by The depositions. of the Otis Elevator request Company allowance reasonable counsel fees and disbursements was denied. So much of this as disallowed judgment claim of Grenthal to the Rhodes’ stock has been affirmed by this court on a v. separate appeal, State Otis Elevator Com 10 N. J. 504 pany, (1952). present the Otis appeal by Elevator Company seeks review only portion of request allowance of judgment denying fees disbursements. are
Two main on this an questions presented appeal: may allowance of counsel fees be made to a defendant in pro- under N. ei J. A. 2:53-15 ceedings to escheat seq. personal and, so, if an should allowance been have made to the defendant Otis Elevator Company?
I. This is the first case which it has been contended that counsel fees are a matter of substantive law. Prom the outset Jersey, in PTew following English precedents, allowance of costs and counsel fees had been uniformly considered by the courts of this to be a matter of procedure rather than of substantive law. Rader v. Southeasterly Road Des trict, 36 J. L. Ct. (Sup. 1873); Murphy v. Brown & J. L. Co., 91 N. Ct. (Sup. 1918); Igoe Brothers v. Surety Co.,
National N. J. L. 243 & A. (E. 1934); Jackson, Robinson N. J. Misc. 866 (C. P. 1936); *5 L. 173 & A. v. & F. Construction (E. Savitt L. In 1939). 123 N. J. L. 149 Ct. 1940), affirming (Sup. view the uniformly Supreme accordance with this accepted Court, prac in exercise of the over rule-making power the II, VI, it Article by Section procedure tice granted Buie the Constitution promulgated 3 of paragraph of fees to effective September be :54-7 relating of the Consti with the Judicial Article 1948, coincidentally form that no 3 :54-7 in its original provided tution. Buie in the taxed costs services should allowed or fee legal actions, out of a otherwise, (b) in matrimonial except (a) the actions for foreclosure court, in in unc'ontested (c) fund rules lawby “as these or by or (d) provided of mortgages, action, there is a fund whether not any with respect the rule of January (d) in paragraph court.” On that “the authority, the qualification amended by adding was Chancery in Court of granting heretofore vested hereby is superseded.” fees causes generally, of counsel Inc., v. Regency, Westervelt’s Sons the case of John S. In first had Court occasion to 472 (1950), 3 N. J. of meaning effect constitutionality, consider held : pp. 477-478) unanimously (at It there rule. ambiguous originally written not when considered rule as “The adopted rule-making in the exercise of It was whole. upon practice procedure power relating conferred the Court II, paragraph VI, of the Constitution 1947. Section Article designed plainly The to be self-contained exclusive. cited It was purpose paragraph (d)] clear the rule makes [of amendment' Chancery, regard powers supersede the old Court this authority Chancery statutory lodged in Division not (d) appellant Superior of the rule as force of subdivision but a it. amendment clarification construe The would * * * purpose. purpose, original The not an amendment ‘by futuro; retrospective sig- operative phrase has it no law’ is conflicting preexisting nificance; stat- was not intended it rule field covers the exclu- remain in force. utes should all sion of else.” Farber, was Katz v. with the rule
The next case dealing was held “There is a fund where N. J. 333 (1950), the fund or has over jurisdiction the court 'where *6 Then Title & Trust Co. (at Liberty estat'” came p. 344). Plews, 6 N. J. we held (at 44):
v. where p. (1950), types specifically, has enumerated the “In Rule 3:54-7 this court may made, and the dis- of he actions in which allowances to counsel denying granting or of of limited to the cretion the trial court is allowances in such actions.” & Trust in Title Liberty As of time of the decision Plews, an allowance Co. in addition to supra, permitting herein- of and situations counsel fees in the of actions types (b), (e), (a), before mentioned in specifically paragraphs fees was counsel Buie an allowance of of :54-7, (d) in cases certain Bule 1:2-28 on appeals also permitted by of the Superior to the Division (made Appellate applicable providing Buie 2:12-1 4:2-6); by virtue Buie by Court of compensation assigned for the of reasonable allowance for Buie 5:2-5, cases; providing counsel murder and by in compensation fees workmen’s allowance of counsel on Plews, & Trust Co. v. Title Liberty after Shortly appeals. December 7, 1950 decided, the Court on was Supreme
supra, (d) from paragraph 3:54r-7 by deleting amended Buie again was that amendment law.” The effect of “or by the words those cases except fees all of counsel to bar an allowance themselves, thereby rules for in the provided specifically an allow basis for such statutory any eliminating completely that therefore, authority apparent, It is readily ance. exclusively fees be found of is to allowance counsel be it should of completeness Eor sake
Buie 3:54^7. January amended effective was last Buie 3:54r-7 noted dealing specifically (e) the addition of paragraph by fees in actions. probate of counsel the allowance the exclusive source constitutes 3:5A-7 now Buie That recently fees most of counsel the allowance authority foT Burlington- in Driscoll v. by reiterated it was where stated Bridge Bristol (1952), : p. 495) (at statutory obstacle to the allowance no there were if “But even granted plaintiffs, case can be this none to the fees procedure governed because the allowance fees is matter of rule of court and there is here. no ‘fund court’ other basis provisions warranting
within Buie :54-7 an allowance.” Such, then, was the state of the law with to the respect allowance of 4, 1952, counsel fees on March when the court below entered its in the instant judgment case denying request defendant Elevator Otis Company allowance of reasonable counsel fees and disbursements. It should noted in this the allowance of regard costs fees, and.counsel a matter procedure, being governed the state of the law at the time entry the judg ment, Inc., John S. Westervelt's Regency, Sons v. supra (at *7 Plews, Title p. 479); Liberty & Trust Co. v. supra (at p. 44). Before ato as consideration of the proceeding question Rule 3:54^7 whether authorizes an allowance counsel fees of the defendant Otis Elevator in the instant case Company it is consider necessary to the and effect meaning of N. J. The A. 2:53-23. pertinent portions S. of this section the of Escheat Act as provide follows: depositing proceeds “Before so the of said escheated public fund, Jersey] [the the he Treasurer of the State of New shall per (5%) moneys deduct therefrom five centum of the so received pay having sup- the same to shall the escheator as reward plied upon the information and evidence which the escheat has been prosecuted successfully pay and shall other such fees and costs the decree shall direct. Chancery Chancery Superior [now Division of the shall, decree, expenses Court] fix its final the fees and at- torney prosecuted or counsellor who shall have the escheat in the Chancery Chancery Superior Court of [now the Division of the Court], expenses moneys The fees shall be from deducted by moneys by received State Treasurer from realized him personal property paid by
from the sale said shall be him as by directed said decree.” It is the contention of the State that this statute provides the necessary authorization an allowance counsel fees the attorney specially appointed by Attorney-General prosecute escheat, that but it fails to authorize an allowance to counsel for and, the defendant therefore, none can be awarded to him. This without argument obviously merit, for it is based upon premise, previously demon- strated herein to false, be that the allowance fees is a matter of statute rather than a matter within exclusively of the power Court. rule-making
N. J. 2:53-23, however, S. A. is not without its effect. 20 of
Chapter the Laws of 1944 J. A. 52:174.-1 et S. (N. seq.) establishing of Law in Department the State Govern ment J. A. (N. administered 52:174.-2) Attorney- by General, imposed on the others, department duty, among to “Attend to all generally matters in which the legal * * * State is a party or which its or interests rights are involved” A. J. 8. It (N. that no 52:17A-i'g). provided member of the department “shall receive any compensation, fees or costs in addition to his for or reason regular salary by * * * service any performed him for the State except by allowance or by the appropriation Legislature” J. 8. A. (N. It 52:17A-10). further provided “Uo * * * counsel shall special employed ex cept by authority of the Attorney-General, and then only Governor, approval provided appro have made priations therefor, been unless matter be of such an emergency and shall be so declared Governor” Thus, A. (N. 52A7A-13). 8. when the Escheat Act was two later adopted years c. (L. 155), unless special *8 had been made therein provision the Attorney-General would have without been authority appoint counsel special thereunder prosecute and he or proceedings his representa tives would have been from prohibited allowance receiving any of fees former that Court of Chancery otherwise might award, have been see v. empowered Driscoll Burlington- Co., Bridge Bristol supra (at p. N. J. S. A. 494). 2:53-23, while it cannot constitute the basis for the award of counsel in escheat fees does have the proceedings, effect of removing the statutory obstacles theretofore so as existing to permit the court to make an award of fees to counsel for the state in the in escheat event proceedings that such an award is S Bule :54r-7. authorized
10 fees of counsel
Does Buie 3 :54-7 authorize an allowance it Quite obviously in under the Escheat Act? proceedings the mean within does there -“fund in not unless is a court” had several has of the rule. This court ing (b) paragraph a “fund there is of'when occasions consider the question N. J. Farber, 4 Manning, v. court,” Farley in Katz supra; v. 236 7 N. J. Co., Trust 571 v. Seaboard Milberg (1950); Co., supra; Burlingtov-Bristol Bridge Driscoll v. (1951); Burlington N. Haines v. In re J. Koretzky, (1951); Janovsky Commission, 8 N. J. 539 Bridge (1952); County Co., 11 N. v. American Motorists Insurance J. (1952). cases, immediately however, dispositive None these is in the instant case. the question Buie thereof (b)
In 3:54-7 and paragraph construing the rule limiting that the in mind purpose to be borne allowed was in counsel fees be might the kinds of cases which fees counsel grant the abuses of the power to eliminate in the under the former practice that prevailed American Motor in v. Janovsky As out pointed Chancery. Co., the rule “this’ supra, promulgating ists Insurance in the federal philosophy, long accepted court adopted administration interests of sound courts, judicial his own litigant bear by having every will best advanced fewa situations.” specially designated fee except Plews, Trust Title Co. this court supra, & Liberty And in . 44): p. stated (at contemplated would or could be com- not rule “It was provisions dispensed pletely under in individual cases
Rule 3:1-2.” that there a fund was of opinion The court below court, Attorney-General since purpose in behalf of the was “to create or the action bringing class,” for the benefit of a people a fund preserve v. American Car A Foundry Cintas Jersey, citing New modified (Ch. 1943), Eq. Eq. 133 N. J. sound, entirely conclusion'is but one This 1944). A.&(E. find a class to doctrine of support need to not does
11 Trust United States v. Equitable Co., fund in In 283 court.
U. Ct. 75 L. Ed. 1379 (1930), 738, 51 fees were S. S. 639, friend an awarded to counsel of the next of incompetent Indian whose had been property dissipated approval Farber, see Katz v. supra, Interior; Secretary of J. 333 4 and cases there cited. (1950), reason,
There is another out equally compelling arising escheat, nature of there is here very holding v. Standard Oil N. J. 5 281 State fund in court. In 95 L. Ed. affirmed, 341 U. S. Ct. 428, 822, 71 S. (1950), : court stated (at p. 297) 1078 (1951), this usage signifies falling property “In ‘escheat’ to the modern owner; category only sovereign an for want of and this embraces not owner, property has other but also owner which no whose whereabouts is unknown. Under the common law owner’s whose England came to be classified as ‘another branch of the escheats ordinary king’s revenue.’ Blachstone’s Comm. 302. What was sovereignty. originally is now an incident of an incident of tenure Gill, Ward, 443, 451; (Md.) In & re Melrose Matthews v. Avenue, 10 235, (1922). 48, The E. 23 A. L. R. 1233 234 N. Y. 136 N. only upon escheat, early operative at law common doctrine subject tenure, related since that which was the reversionary right tenant, want of a was the lord to take for personal property, tangible eventually in extended to include principle right tangible. be to take that which jura regalia. Dyke Crown, longed appertained as to no to the one 434, Eng. Rep. Reprint Walford, Full 557. The Moo. P. C. v. Property steps because it is vacant. in to take the Crown by State, as its vacantia is taken or assumed described as tona right Property falls ‘to the as a matter of class Crown own. this (1902), sovereign power.’ Re Barnett’s Trust exercise of its estates, personal (Eng.) ‘In which are B. R. C. 198. 1 Ch. by law, King heir where no kin.’ Lord Mansfield is last allodial Reprint 67, Eng. Rep. Burgess Wheate, Full Bl. 1 W. (1884). Property Eng. escheats to State Rul. Cas. 614 10 part Brown, ownership. Hamilton v. 161 U. S. of the common Lynham, ; (1896) Sands v. 27 Grat. Ed. Ct. 40 L. abolished, (1876), 291, (Va.) succession is tenures 295. ‘With subject personal right estate or real.’ of escheat is' like whether Avenue, supra.” In re Melrose is one which the that an escheat action thus appears It an of property court seeking accounting comes into as to the residual owner judgment it is of which *10 title thereto. The complaint, using language statute A. 2:53-21), J. 8. that certain (N. alleges property and and discovery “has escheated to the State” seeks an in of all such accounting possession custody of the defendant. It that in an action is well recognized an such as this the nature of is accounting within control of the court and constitutes a brought “fund in court” within the Rule meaning of 3:54-7(5). Co., American Car & 133 N. J. Foundry Cintas v. Eq. see Seaboard Trust 1943); Milberg N. J.
(Ch. 236 (1951).
II. shown that the allowance fees of counsel has Having always been deemed a matter State, in this that procedure sole source authority for allowance counsel fees is a where there fund in is Rule 3 and :54-7, that there court, is a fund it remains to consider certain arguments advanced this State.
First it is that the rule of W esterveli’s v. argued Regency, Inc., 3 N. J. 472, 478 rule supra, (1950) as (“The [3:54-7 to counsel field covers the exclusion of all else.”); fees] Farber, the rule of Katz v. supra, N. J. 344 (1950) a fund is in court ‘where the jurisdiction court has (“There ; or estate5 over the fund the rule 55) of Winberry v. 5 N. J. Salisbury, (1950) (“The rule-making power not subject is to overriding legisla * * * tion, but is confined to practice, procedure and must when administration55) way the State is a give party to In such it the action. cases is maintained the Legislature and that such may procedure prescribe legislatively pre be in with scribed conflict procedure may rules of court practice, administration relating procedure and will rules of We can override the court. find no basis law or on the view, for such but we equity contrary cannot but such as suggestion fraught regard great inconvenience, would lead to systems because it two of procedure, one for ordinary the other litigation, involving litigation Indeed, State. in this view the Legislature prescribe might different many systems as there are or procedure might to which' the is a proceedings thus party, defeating the objectives of uniformity, flexibility simplicity are the goals our new it procedural system conceded have throughout been measure country large achieved here. If the doctrine were on us urged accepted, even be extended to all might criminal trials because the *11 State is a necessarily party.
But far more than the important procedural difficulties of a rival or even a of multiple system practice procedure is the grave substantive of to the State a conceding danger preferred in the a position courts as One of the plaintiff. of the law
signal triumphs common as distinguished from continental systems of is that centuries it jurisprudence has a been is to the recognized that principle everyone subject rule of law and that no man is above or the law. beyond Bracton, Said the writers on greatest early English law, common “Rex debet non esse sub Tiomine sed deo sub et sub lex lege (“The not guia regem.” should king facit law, under man but under God and under the any because the law Legitus makes Be et Gonsuetudinibus king.”) Publications, s. 5; I. 8. 4 Angliae, Selden Select Society, Passages the Worles Bracton and Azo (edited from Maitland, London, 1895). See also Lord use of this Coke’s in his celebrated encounter with passage James I. Prohibi- 65, tions del Golee Roy, Rep. English Reprint -This had in (1612). an principle exception sub- long stantive law: “(1) King wrong; (2) procedural The can no rule do King rule that cannot be sued in Ms own courts —a rule de- days from a rived feudal when lord could not be sued in his own (London, 1950), court.” and. Wade Constitutional Law Phillips,
309. In however, this England, has exception disap- gradually peared; has been from long recoverable the Crown aby petition of contract right; enforced obligations against 1860, idem, exceptions
the Crown since and “with important Act, sec. establishes Proceedings against Crown person as if it were liability private Crown tort liable for torts full it can be made capacity; age 312. its servants or Idem agents,” the doctrine State;
In this as in country this generally, lingers of the sovereign and the infallability nonsuability This immunity. of sovereign on in doctrine guise State, but is however, against doctrine suits applied, it has suits such as this brought no application assert into court to State. In case the coming this State derivative, residual to the personal rights Oil owners, or unknown absentee Standard State J. 281, is neither Its standing supra, (1950). nor than that of the unknown absentee greater higher in such circum plaintiff individual owners. State as any over any does not stand in preferred position stances and a in the of an accounting citizen. form equity Seeking title, like other suitor must, every the State judgment fundamental equity. principle itself do This equity, any to law as is as much subject private the State itself modern importance citizen grows practical *12 and activ times assumes more functions constantly greater functions; to various ities with respect the that even by though Next it is contended State the power, has the to exercise right rule-making the court as to should, yield provisions out of to comity, legislative concerned. The rule- cases where the State is in procedure a Court, however, is not of the Supreme power making the it at its on option; contrary, exercised by privilege must the the Supreme a that of justices it is duty in cases as of their constitutional obligations part exercise as much as the private litigation, involving quite the it clear: making of Constitution the language governing make rules the administration “The Court shall subject law, pro- and, practice and in the State of all courts Section, VI, 2, para- 1947, Article Const. in all such courts.” cedure graph 3. called make draft They on committees of an initial experts rules; draft the rules submitted tentative they bar; to the entire and bench and have continued they an annual process by Rule 1:7—3 for providing judicial conference, in the “to consider improvements procedure courts.” The made all the Judicial Conference is up each the leaders of judges except municipal magistrates, branch of the the 21 Legislature, Attorney-General school, county the dean of each law prosecutors, approved the state examiners, bar the officers and trustees of the State Bar Association, association, each bar president county from the of each by bar delegates appointed president bar association in the same county members proportion General and ten Assembly, laymen by appointed Chief Justice. the annual conference Months before request is made in the New Law Journal and by publication Jersey letters to the bar associations for by suggestions improv- the rules of court. committees are ing Special frequently on appointed report major These topics difficulty. and all are considered and
reports carefully suggestions debated con at the Judicial Conference. Thereafter pro undertake the justices arduous work of considering each on recommendation. all passing by odds Rule-making the most difficult task have they them. assigned They realize that very part that has been large progress made the new establishment judicial from the springs improvements procedure administration practice, pre- the new rules of court. therefor They scribed regard an not as. arduous task but power only also as rule-making rests them responsibility upon continually high year know full well that judicial after year. They any system rests its laurels will soon on stagnate. We that within constitutional limits the courts agree should with the cooperate Legislature serving public. Bennett,
In Massett 4 N. Building Company *13 we have listed 21 different types nonjudicial (1950), ex- at the they functions that perform legislative agents of the expressed appropriate press request Legislature statutes. Indeed, few states have further in this direc- gone tion. In doubtful situations we have not hesitated to yield to the power of the in a Thus Legislature spirit comity. in the exercise of our exclusive over the admis- jurisdiction sion of members of the bar and in the absence of any legislation on the subject, we fixed the fees to be paid applicants for admission to the bar Rule examinations, 1:8-8(2). Thereafter 1948, 390, L. c. Legislature by R. 2:16-64, presented a different schedule of fees. We 8. thereupon promptly conformed our rule to the statute in of the recognition primacy matters, Legislature fiscal even within a field of the Supreme Court’s exclusive jurisdic- tion. Such examples might But we cannot multiplied. accede to the argument the court divide may its consti- tutional with duty respect other rule-making any branch of government because State is a inter- or party ested in the outcome of or that shirk litigation, may abdicate its constitutional in the name responsibility so-called judicial deference. The Constitution 1947 wisely superseded common
law
writs and
prerogative
substituted in
thereof
place
pro
in lieu of
ceedings
writs in
prerogative
civil matters "as of
,”
VI,
V,
Article
right
Section
paragraph
because,
chiefly
reasons,
other
“It was
among
too,
thought,
right
sue
aout prerogative writ should not be
on obtain
dependent
the allocatur
ing
of a court or of a justice thereof.
It was
believed that the allowance of a
writ should
prerogative
not
be a matter of judicial discretion
more
any
than the filing
bill
or the
equity
issuance of a
answer,”
subpoena
Keenan,
Ward v.
N. J.
304 (1949). Similar con
sideration should
our hand
stay
here in
developing
federal doctrine of judicial deference which has been em
United
ployed
States
on occasion to
individuals and
prevent
states
sovereign
alike from having
constitutional
questions
moment
greatest
adjudicated.
The classic
of such results are
examples
Massachusetts v.
Mellon,
U. S.
S. Ct.
Then it is urged by State that the Escheat Act would be unconstitutional if it did not contain procedural It provisions. is undeniable that all judicial proceedings, whether in statute, the common law originating are necessarily subject constitutional requirements pro cedural due But process. mean in judicial does not authorized proceedings by statute the must be procedure provided by where, statute as in State, this matters of prac tice and have been procedure committed to the courts by constitutional mandate. If the a new Legislature prescribes the court has the right, set duty.to up corresponding procedure enforcement, for its if one does not already exist. would, however,
It defeat the desired objectives of simplicity flexibility if procedure, statutory procedures might on the rules of court. engrafted fact, In taken Legislature has this view of precisely our rule-making responsibility two re- comprehensive visions. Sensing undesirability of commingling substantive and law in procedural Title of the Revised Statutes with the administration of civil dealing and criminal and in
justice Title 3 the administration dealing estates, the an Advisory June Legislature appointed Committee c. 171) on Revision of Statutes (L.
revise these two titles one-sixth of total about comprising bulk of the Revised delete the procedural Statutes and to therein, matter and on December 1951 it enacted the *15 Titles 2A recommendations of its Committee as Advisory and 3A of the Revised cc. (L. 345). Statutes in June 1952 it a Again, Commission appointed Legislative on Statute Revision a similar task with perform respect the 56 titles of the Revised Statutes remaining (L.
c. on 1953 it enacted the recommenda 11) February tions its Committee as 1 to 54 and these Advisory S. S. bills are now before the Governor for executive action. Like wise, the Governor has consistently supported rule-making power Court encroach vetoing legislation thereon; see the vetoes of ing 103); (1947-1949, p. S. 237 A. 87 p. 76); 38); A. (1950, (1950, p. 49); A. 634 in Veto
(1950, p. (1952, p. 113), Messages Driscoll, E. Hon. Governor New Jersey. Alfred it is insisted that the’ Finally, may State escheat per sonal without action. With property administratively judicial this we find view ourselves complete disagreement. been uniformly
action has escheat required proceedings. If the other than may appropriate State contraband use to its absolute without and un compensation, great bounded inroad on will have made private property rights law into the without constitutional way any warrant.
III. There a fund in court out of which an being allowance of counsel fees be made under might Rule 3:54^7(6), is next as question presented to whether the court below abused its discretion the allowance of a denying reasonable fee counsel defendant Otis Elevator while Company at the same time a substantial allowance to granting counsel Three for State. reasons were advanced the trial fund (1) for defendant’s denying request: the use for must full measure as preserved possible on State; indicates a willingness Escheat Act (2) counsel part Legislature compensate defendant; there State for the and (3) but not counsel fees counsel in these cases that an allowance of danger reasonable will without a show of inspire activity legal much for a and third call as justification. first reasons as to denial of an allowance to counsel for the result of a defendant, for the and the second reason is have previ- N. J. A. 2:53-23. As we 8. misinterpretation out, has the effect of ously lifting this section pointed merely or his Attorney-General restrictions on the statutory an when otherwise per- allowance representatives receiving It intended an to counsel mitted. was not allowance deny defendant; that “the indeed, it specifically provides * * * shall pay Treasurer of the State of New Jersey fees and costs as the decree shall direct.” such other such The nature of under the Escheat Act is proceedings *16 the defendant that in the case of ordinary personal property an counsel fees where it is entitled to allowance of plainly in in the fund court. Here is important assists creating the difference in and personal property to note escheating In the escheat of real to property pursuant real property. B. 2 :53-l ei at the statute 8. in effect time seq.,
our former action, the the of this the burden of commencement the the State. When placed upon Attorney- proceedings had reason to believe that a seized of real person General heirs, intestate and without he was had died required estate a writ of to be issued directed to the inquisition to cause him and as follows: commanding sheriff
“* * * you, that, by good we command and oath twelve you your county, diligently inquire lands, lawful men what and hereditaments the said .......... of at tenements was seized death, any; inheritance, if of his and what estate of and the time died, any, what, thereof, and whether he made devise when he any heir, and, did, heir, if who his and whether he left he yearly lands, value of such what is the clear tenements heredita- * * (B. 2:53-1) ments;
If any occupant of the affected real estate or any person traversed aggrieved a trial was ordered and inquisition, the burden was on the State to all such matters as “prove are requisite of law establish escheat” judgment to 8. 2:53-5). (B.
Contrast this with practice to the escheat of real respect with the property procedure for the prescribed escheat of personal property. There the burden of inquisition is lifted from the proof State and thrust by the statute on the defendant. The complaint against person suspected of or custody having possession escheatable personal prop- need erty only terms, be general yet defendant bemay court order required Attorney-General, deputy appointed “to furnish to the or his
prosecute action, person having possession all information such personal may property of such have with relation to the last-known any person any having in, together any address of interest relating to, personal property.” (N. other information such J. 2:53-21). 8. A. The defendant may not default leave the State but the court shall proof, requiring petition “Make an order the defendant answer within a time therein limited. Such order shall contain such other may appropriate speedy directions deem deter- cause, protection property, mination or for pertinent prosecution
disclosure of information to the of the cause.” (IV. 2:53-21). A. 8. If any person any claim to the lays sought escheated, he is required general petition, “file his claim form of an answer to the which may require why
answer shall set forth in such detail as the court answering party contends mentioned in the petition (IV. 2:53-22). should not escheat to the State.” J. 8. A. *17 And in the event a claim is made sought be escheated the burden is not the State to upon prove escheat, it is the “claimant’s burden but of clearly establish- evidence that he was the by competent owner ing rightful had presently a valid claim as see such,” State v. Otis Elevator 10 N. Company, which supra, (1952), deals with a claim made in the instant escheat proceeding.
It is thus that a under the apparent Escheat complaint Act with respect to is an personal property extraordinary in which the proceeding, defendant required perform duty would otherwise fall the State of upon furnishing all the information necessary substance to and give sup In port complaint. these circumstances the statute places oar in the defendant’s laboring hands and without any on its wrongdoing part commands it to produce appropri ate that in proof course ordinary judicial proceedings would come from the In these plaintiff. circumstances it is that when only equitable it comes allowance of counsel fees the defendant be at least as favorable considera given tion as the State.
In these escheat as no doubt is the proceedings, situation in most such the efforts defend proceedings, ants were not devoted to the exclusively of infor furnishing mation furtherance of the claim State’s to the personal in its or possession control. While at the hearing it did not contest escheat, in its answer it did raise cer which, valid, defenses if tain would have defeated the escheat.
It is therefore essential in this, and in other similar pro that the trial court in ceedings, whether to make determining an allowance of counsel fees to the defendant and in fixing the amount thereof consider what portion of the defendant’s efforts redounded to the benefit of the and, in the event the- escheat is contested actually trial, at the whether the had reasonable justification defendant for so Obvi doing. if a defendant should
ously make a mere “show of legal feared, as the court below activity,” the court would be either justified counsel fee denying altogether even the costs of the assessing it. In proceeding against we are of the instant case that the opinion below, of its misinterpretation reason force of N. J. S. A. T, and Rule
2:53-23 abused supra, its discretion in 3:54— allowance of counsel fees any to the denying defendant Otis *18 us of the record before Elevator but on basis Company, a reasonable we are what would be not prepared say determined by be allowance. The amount of the fee can best rendered. the court in which the services were IY. as it reversed insofar from is judgment appealed of reasonable
denied the defendant’s for the allowance request cause is remanded and the counsel fees and disbursements the pur- Court for Division of Chancery Superior in accordance the defendant an allowance to pose making in this opinion. the views expressed appro The Escheat Act Jacobs, J. (dissenting). State, personal property the common for good, priates Its validity owner. by abandoned rightful which has been Co., 5 N. J. Oil State Standard is no longer questioned. 822, 95 L. Ed. 71 Ct. U. S. affirmed (1950), terms, a positive it embodies As I read its 1078 (1951). the escheated prop dissipation policy against legislative to its fees and costs of counsel payment erty through honored consistently has This been policy custodian. escheat many judgments and in none of trial courts
our allowance 1946 was such has since obtained which the State is to down strike majority’s decision The result of made. who honored that the trial judge and adjudge this policy find reason discretion; I no persuasive since his had abused dissent. action, I respectfully for this
I. Legislature was enacted Act the Escheat When Thus, fees. and counsel of costs aware problem fully the escheated that from provided it expressly and the fees the escheator shall pay Treasurer 5% who court, attorney fixed to be expenses, 2:53-23; A. N. J. S. for the State. action prosecuted deliberately any provision It omitted 2A :37-21. N. J. S. fees custodian but to the defendant
payment expenses defend not against did shall provide imposed costs “without ant where it has resisted the except proceeding 2:53-25; A. reasonable cause or N. J. S. justification.” *19 seems 2A N. J. S. :37-23. The purpose overriding legislative evident; prop insofar as abandoned fairly practicable, diminution, should be available to without erty State on people; thus taxation lessening general burden be may while the escheator and the for State attorney have recovered they entitled to be out of paid similar State, the defendant custodian is not in a for in it, and should not be whole permitted expend position and In for fees or counsel costs. part, charges through context, the Treasurer to provision pay State directing and other costs as the judgment the escheator “such fees and fees and within direct” refers to costs permissible shall simply act, to the for attorney such those allowable expressly 2:53-23; N. 2A:37-21. See A. J. S. State. Co., 19 Super. 107, v. Otis Elevator N. J. (Ch. Div. 1952). Director that from 1946 to
The Administrative reports instituted; escheat were 1953, 559 Eebruary proceedings State, in final for the these resulted judgments 286 of dismissed; 76 were and instance still no were pending ever allow costs or counsel fee to the the trial court did meaningful This construction is practical custodian. defendant 535, 540 Driscoll, 130 N. J. L. Ct. v. (Sup. (C ino and it is not without significance although 1943)); they acts are now common states throughout escheat allowance of costs or counsel provision omit generally custodian, any and no decision court in Yew fee to allowance, such an is cited elsewhere, sustaining Jersey v. To the see State First Wis contrary, the majority. 250 Wis. Milwaukee, 107, 26 N. W. National Bank consin where the Wisconsin Court found 161 (1947), 2d a aside trial court’s allowance of setting difficulty no bank in a fee to defendant to escheat proceeding bank deposits. abandoned
II. The majority takes the that the allowance opinion position of counsel fees and disbursements is a matter of entirely and is Rule practice exclusively 3:54r-7. governed by It relies upon decisions which related to controversies between private involved escheat litigants no or comparable statutory In the policy. matter, instant we are not dealing with the allowance of counsel fees costs ordinary between litigation private parties. Jersey City Kelly, Cf. 134 N. J. & are L. A. We with (E. 1946). dealing which, owner, abandoned property for want of a known has to the State passed has set public The State good. aup method complete for its recovery has declared all of the specific It has directed rights respect thereto. out certain amount shall to the paid escheator, an additional amount shall be to the paid attorney *20 State, and the balance shall be “into the paid general funds the state.” Whether in any others shall share State’s property would of' hardly be matter simple practice from substantive distinguished at right; least would mixed present elements of substantive and in right procedure a field which is- of and primary special legislative concern. Cohen See v. Industrial Loan 337 Corp., U. S. Beneficial 541, 559, 69 1221, 1231, Ct. 93 1538, S. L. Ed. 1543 (1949),- where Justice rightly pointed out that “in Rutledge many situations procedure and substance are so interwoven that rational separation becomes well-nigh impossible.”
The doctrine judicial supremacy in an rule-making, nounced Winberry in Salisbury, 240, v. 5 N. J. 255 (1950), has received considerable attention in academic circles. Dean Pound recently came to its defense Procedure (Pound, Under Rules New 66 in Harv. L. Jersey, Rev. 38 whereas others have (1952)), questioned its constitutional implications. basis social See Kaplan Greene, Legislature’s Relation to Judicial Rule-Making; An Ap Winberry Salisbury, v. 65 praisal Harv. L. Rev. 234 Heckel, 6 (1951); Law, Constitutional Rutgers L. Rev. 27,
25 29 In (1951). any event, it an depar- represented important ture from traditional federal constitutional both concepts, state, and its ultimate rest upon vindication well may the measure Stone, J., of self-restraint in its application. Cf.
in United Butler, 1, 312, States v. 297 80 78, S. 56 Ct. U. S.
L. Ed. 477, 495 (1936). Farms,
In 306, Como Inc. 6 317 Foran, v. N. J. Super. Div. me (App. 1950) Judges joined Bigelow Donges in the that the suggestion doctrine of in judicial supremacy as a matter of towards the rule-making ought, comity Legis fair, lature, be accompanied by important recognition statutory policies fields which are of special legislative concern. In taking contrary reject approach majority basic which have in the philosophies able guided past judges in their statesmanlike of a and inde development strong pendent, coordinate, though judicial branch of government. need
One
but
read
“political questions” cases including
the opinions
Borden,
Taney
Chief Justice
Luther v.
7
How.
1, 12 L.
581
(U. S.)
Ed.
Chief
White
Justice
(1849),
States Telephone and
Co.
223
Telegraph
Oregon,
v.
Pacific
118,
S.
32
Ct. 224,
U.
S.
S. cases the opinion of Clarke in including Oetjen Justice Central Leather 62 U. 38 Ct. L. S. S. Ed. and the (1918), “judicial deference” in the eases listed
separate opinion of Justice Brandeis in Ashwander v. Tennes see Valley Authority, 288, 341, U. S. Ct.
L. Ed. how (1936) recognize effectively United States Court has availed itself the- instru *21 ment of selfdimitation in appropriate circumstances. See Warren, 2 Supreme Court United History States 193, 722; Finkelstein, (1928), Judicial 37 Self-Limitation, L. Weston, Questions, Harv. Rev. 338 (1924); Political 38 Harv. L. Rev. 296 (1925); Einkelstein, Further Rotes on Judicial Self-Limitation, 39 Harv. L. Rev. 221 (1925). the famous
Compare opinion of Justice Stone dissenting Justices Brandéis and (joined by Cardozo) in United States 26 Butter,
v. where he noted that while supra, poignantly other subject judicial branches of are always government restraint and exercise only check on court’s assertion power its “own sense of self-restraint.”
In our we find view advanced direct precedent in the Thus, Como case. our former Su Farms although preme Court had admittedly paramount rule-making power in its writ jurisdiction, wisely constitutional prerogative on to reasonable gave recognition policies bearing legislative the exercise City, of that Owen v. Atlantic jurisdiction. See 145, 125 N. J. 147 L. Ct. v. Town 1940); Traphagen (Sup. Hoboken, West 39 ship 232, N. J. L. 237 Ct. 1877); (Sup. Case, J., at 261. The Winberry Salisbury, supra, p. refer majority to recent revisions which have elimi legislative nated statutory which were provisions strictly procedural; however, it is in these noteworthy, revisions Legis lature did not alter its and counsel policy to costs relating fees in escheat matters on the but, contrary, expressly 24:37-21; 24:37-23, reasserted it. See N. J. J. S. S. 1, effective 1952. In view of the January issue particular us it at may, before this be well to remind ourselves juncture, that in our the executive and democracy branches legislative are the ultimate of the “welfare of government guardians as people Holmes, the courts.” quite great degree Missouri, J., in Kansas & Texas Railway Co. Texas v. May, 267, 270, 638, 639, 194 24 Ct. 48 U. S. L. Ed.
(1904).
III. When the new rule fees was under relating con sideration in 1948 a choice of philosophies presented the court. Some advocated that counsel fees should be liberally available to successful where litigants, particularly claim or defense of the had litigant no reasonable losing Costs, Goodhart, basis. See L. Yale 872 (1929); McCormick, Counsel Fees and Other Expenses, Minn. L. ; Rev. Col. Rev. (1931) L. (1953). But Satterthwaite, Costs to Increasing be Paid by Losing cf. *22 advocated that L. J. 133 Others Party, J. (1923). entire of judicial restrictions be on the placed practice
rigid fees, the serious abuses allowance of counsel pointed the practice adverse which had public accompanied effects in latter view the Court of and elsewhere. This Chancery 3 :54^7 which adopted by prohibits Buie in a few judicial specially allowance of counsel fees except Motorists situations. v. American designated Janovsky See Co., 11 Insurance N. J. 1 When (1952). Legislature with a these situations it was met veto sought enlarge the comment that it “would revive an bearing unhappy prac tice that has been See Veto repudiated.” Messages generally Driscoll, Hon. E. Governor New Jersey (1950), Alfred 76: p. matrimonial, Rule 3:54-7 counsel fees in fore permits a fund in closure actions and “out of court.” probate We are underlay not concerned with the reasons which matrimonial, favor of foreclosure exceptions probate actions; are, however, we concerned here with the reason In for the fund in court and its exception proper scope. Farber, 4 dealt
Katz v. N. J. 333 Justice Case (1950), at but none of his illustrative instances subject length bears on escheat that Obviously fortuity proceedings. concerns and result the transfer of may litigation and incidental is no basis for
specific property accounting each shall from bear principle departing litigant fee; his is own counsel it clear accordingly, specific rescission and adverse performance, replevin, comparable pro made under Buie may no allowance ceedings generally Co., 3 :54r-7. See v. American Motorists Insurance Janovsky 8 N. Driscoll v. supra; Burlington-Bristol Bridge however, Where, creates or a party (1952). preserves fund not for the benefit of himself but for the solely benefit he of a class whom that the others represents, only just bear their fair share of cost of the In the litigation. case of Trustees
language leading Greenough, L. 532, 26 Ed. “they U. S. (1882), ought contribute their due proportion expenses which he make the fund upon incurred. To them charge
has fairly *23 of such contribution.” way securing most the equitable McCormiclc, 622; Note, Allowance Attor at supra, p. See of Rev. Court, Fund in 35 Col. L. (1935). Fees a neys’ 740 from Car Foundry see Cintas v. American & To the same effect 135 Co., 301, 1943), 303 affirmed N. (Ch. 133 N. J. J. Eq. : 1944) & A. Eq. (E. applies a to the matter before me is “The rule which that court discretion, equity will, of sound an in the exercise order allow fees, fund, complainant payable out a to a or counsel ance of directly has, expense, at own his where he his either to counsel preservation, protection or in a suit maintained successful fund, brought into a fund in which a common court crease of practice situated, may others, similarly share. This custom or theory originated English was based on courts conscience, should, good bear fair share their others who benefit (6th litigation. Darnell’s Oh. Plead. & Prae. the burden of the 73, 74; *1377; ed.) tit. 15 C. J. Am. 14 Am. Jur. ‘Costs’ §§ seq.; seq.; 210; L. et 1150 et 107 A. R. 749 tit. ‘Costs’ 49 A. L. R. § Sprague 527; 1157; Greenough, 26 L. Ed. U. S. Trustees Bank, supra. 59 S. Ct. [307 U. v. Ticonic National Eq. ; Merwin, Eq. § & Plead. 1018.” 1184]
L. Ed. the fund in has limited today strictly Until this court Thus in purpose. court rule in keeping underlying Co., it disallowed Bridge supra, v. Burlington-Bristol Driscoll action to rescind in an plaintiffs counsel fee to the prevailing a public body, pointing an illegal purchase an action to create or pre that the was “not out proceeding benefit of class of which the' plaintiffs a fund a serve for v. Burlington in Haines are Similarly, representatives.” Commission, Bridge (1952),-it County action, fee in a plaintiffs taxpayers’ counsel disallowed is the subject fact that which that “The holding control court through is under litigation a fund in restraints” does not create issuance of temporary in Janovsky v. American Motorists recently And more court. fee it declined to allow counsel a supra, Insurance a determi a fund into court sought tendered who plaintiff was entitled to it, he or defendant as to whether nation not an action proceeding that “the plaintiff’s noting he which of a class fund the benefit create or protect denied justly cases were If in these represented.” parties the trial fee, it be said fairly counsel how can fee under abused its discretion in disallowing matter? instant it facts presented following inwas possession Elevator Company The defendant Otis unclaimed been which had stock and dividends corporate unknown owners. their and abandoned for over 14 years stead, and in the owners’ instituted its action duly the constitution while was this court sustained pending abandoned to such of the Escheat and its ality application Act an filed Nevertheless, the defendant property. thereafter vested and it had answer which asserted that “acquired relied upon the abandoned property, absolute right” *24 constitutionality of limitations, and statute of attacked an amended In the act and of the court. jurisdiction had answer filed the United States after defenses were the same affirmed the decision of this court formal any find in the Indeed, reasserted. I do not record to the claim withdrawal its defenses or its groundless did not behalf, it its apparently on own although its claim the trial. In view of foregoing, at press than are losing defendant was in better hardly any position Motorists v. American Janovsky claimants See generally. Church, Episcopal
Insurance West v. St. James’ supra; case 324, 326 & A. In the West 1914). J. Eq. (E. Parker, fees after that costs counsel noting Justice are court, funds claimants of in to unsuccessful ordinarily denied that a doctrine would contrary “encourage aptly suggested and frivolous unnecessary litigation.” Milwaukee, Bank In v. First National State Wisconsin Court, in the Wisconsin Supreme denying
supra, fee abandoned a to escheat proceeding to the bank respondent 107, 26 N. : said Wis. W. 2d bank deposits, [250 162] regulating in the statutes costs do not warrant “The sections by respondent. apply does the rule which allowance asked for Nor permits a under circumstances to make an allowance out some party preserved expense a or where a at the fund created brought this not created bank has common fund is into court. The already preserve fund; it than it has more to it done little depositors bound to the to do.” Elevator Com- The defendant Otis same be said may which rightfully It was the' custodian of pany. have These owners might to unknown owners. belonged the defendant would at time and in that event any appeared whatever deduction have been to remit without any obliged un- on and, indeed, have been chargeable might perhaps it years, three which, claimed dividends after the lapse from had and had benefited account placed general un- replaced over these When the State many years. full, in part. it their not known owners acquired rights The it was under placed defendant not assert that may it was under pre- burden of its records for special searching the owners maintain records for current existing obligation Eurthermore, it mayrbe until or other payment legal discharge. are now defendant, as the noted such corporations, records to called to maintain voluminous upon frequently other aid due as taxes and for sums government realizing entailed amply justi- whatever is public purposes; burden interest. fied advancement public consequent that when assert that “it is majority only equitable defendant be it comes to the counsel fees the allowance of at as the No least as favorable consideration State.” given the attorney was ever taken from the allowance to appeal it, we are not concerned although relation seems clear that allowances have no respective *25 from prop- to each other. The defendant is seeking payment else, On the to someone State. erty namely, belonging hand,' the from anyone other' State did not seek payment the trial court to fix a else’s but simply requested reasonable amount from its own payable property. Perhaps have have it would been omitted politic Legislature for for State allowance provision special attorneys But that a matter of exclusively to them. legislative judg- furnishes no basis for judicially initiating ment fees to custodians escheat allowing practice
31 matters with consequent of state revenues and impairment incipient perils, remindful aof phase history. vanishing Co., See State v. Otis Elevator at 112. supra, p.
I would affirm the judgment entered the Chancery Division.
Heher, (dissenting). statutory proceeding the “escheat” of the enumerated tangible intangible personal 1946, property (L. 155, amended; c. A. as N. J. S: 2:53-15 ei is sui seq.) and the generis; and interests rights parties necessarily depend of the upon provisions act itself.
At common law, abandoned
personal property
not
escheatable, but was subject
to the
only
right of appro
priation by the
as bona vacantia. The
sovereign
State
has the same
right
limited
appropriation
as
except
State’s
Constitution
laws and the due process
provision of the Fourteenth Amendment
to the Federal
Constitution.
“Escheat” in modern
usage’ signifies
falling
property to
owner;
for want of an
sovereign
the term comprehends not only
which has
no
other owner, but also property whose owner or whose owner’s
whereabouts is unknown. The common law of England
classifies escheat as “another branch of the
ordi
king’s
nary revenue.” Blaclcstone’s Comm. 302. The
to take
right
that which
to no one
belonged
appertained
Crown,
to the
jura regalia. Property described as bona vacantia is taken
or assumed
State,
as its own.
Property
this class
“falls to the Crown as a matter of
in the exercise
right
sovereign power;”
escheats to
State as
part
common
v.
ownership.
Standard Oil
5 N. J. 281
affirmed
(1950),
sub nom. Standard Oil Co. v. New Jersey,
428,
341
822,
U. S.
71 Ct.
95
S.
L. Ed. 1078 (1951); Roth
Delano,
226,
22,
U.
S.
S. Ct.
32
44
108,
S. Ct.
State’s superior under the doctrine of bona vacantia right was described by Blackstone as the avoidance of “that strife and contention, which the mere title of is apt occupancy to create and continue, and to provide support public a manner the indi authority least burthensome to viduals.” Blackstone’s Comm. 298.
The State may
to take
proceed administratively
property
of this class into its protective
subject to eventual
custody,
escheat;
where,
here,
but
as
is
subjected
property
escheat
through
judicial
there must needs be
process,
with the
compliance
of due
And it
requirements
process.
may be conceded that the exercise of the
sovereign right
protective
custody
abandoned or
property apparently
unclaimed is
due
where the
dependent upon
process
property
held,
is adversely
some form of
on notice
although
proceeding
would ordinarily be
necessary
abandoned
bring
prop
Here,
erty
possession.
the act is
effect an
designed
escheat
and the
judicial process;
provision
pro
cedural due
in the
process
subjection of
bona
property
vacantia
function;
to escheat is in essence a
it is
legislative
the course of
which such
is
proceedings by
reduced
possession
the title of the unknown or
owner
missing
foreclosed, and therefore an
the escheat
integral part
process itself. State v.
Co.,
Standard Oil
cited
Provi
supra;
dent Institution
Malone,
v.
Savings
660,
U. S.
Ct.
S.
L. Ed. 865 (1950).
itsBy nature, such very due procedural process not within the exclusive function conferred rule-making upon VI, II, Section paragraph Article Constitution interpreted Winberry 5 N. J. 240 Salisbury, nor does the (1950); denial statutory of a counsel fee to the custodian of the liable to *27 the .authority escheat the infringe constitutional regulate practice procedure. to the falls to said, As abandoned just personal that owner; is corollary for of an and the want sovereign State’s, enforceable the the of escheat is right exclusively conditions State, at the the such instance of only upon It the the shall ordain. authority as State by legislative . seem to fundamental Legislature, would the escheat exercise its sole to for provide province incident or also, must as an inseparable abandoned property, of the condition the declaration judicial facet power, as deem may such notice and it politic escheat upon hearing and in keep the nature of the proceeding to appropriate only due with the demands Not process. reasonable ing here, was done that; also as may the Legislature provide, the unknown or owner missing a claim of property for condi escheat, reasonably before and after the judgment otherwise, time and the for procedure tioned as to The line that and establishment of the claim. prosecution not always is the substantive from the procedural separates blends into adjective and where distinguishable; substantive, sepa is which unity precludes there substantive A rule of jurisdiction. ration assessing rule-making it diminish nor can jurisdiction, cannot or enlarge the substantive rights litigants. modify, enlarge abridge 767, 61 Ct. Sherwood, 313 U. v. S. S. United States Navigation Co. Washington Ed. 1058 Southern L. (1941); 263 U. S. Philadelphia v. Baltimore & Steamboat L. The mode of 68 Ed. 480 (1924). acquiring 44 Ct. S. of the in this and the substantive
jurisdiction rights field within the legis and their enforcement are litigant parties jurisdiction The statute defines the court’s lative province. suit; jurisdiction the exercise of is entertain the United States Compare terms
subject grant. Sherwood, supra.
v. cited v. submit, Pizzutti, of Wuchter I is Such, principle 259, 73 L. Ed. (1928), applying 48 Ct. U. S. Oil Co. And see Fourteenth Amendment. Standard New cited where Reed Jersey, Mr. Justice supra, Eederal there Supreme Court in hand said case Pizzutti, differed Wuchter v. “since it here not from defective attempted statutory validate provision which, notice recourse sufficiency of the notice not statute, was in fact although required by Here given. itself, is the statute court, as state interpreted by which requires what we think is notice.” adequate [341 428, 71 U. S. S. Ct. 826.] word,
In a the conditions the enforcement of the attending right of escheat and the sovereign's proceedings perfect are the escheat so related to the substantive intimately process it. to be from It is a inseparable special statutory pro- *28 for the escheat, declaration of ceeding conditioned as pro- vided the itself; State the conditions the by substance, are of and not within the cited procedural of the constitu- concept tional of to the authority grant touching matters practice of procedure.
It is within the of the province Legislature, protec- revenue, own tion of its to for disclosure and transfer provide of subject to escheat without the benefit of a counsel fee the custodian of the or the record of its And this is what has ownership. done here. Legislature This not a suit alone, is between private but a parties the State take by over abandoned property, for proceeding its care and protection outset, at the its ultimately ap- as the The propriation State's own. has Legislature plenary enforce the power to of sovereign right property; this end it the mode and may provide method of exercising escheat, the State's right subject to the requirements of due and take all reasonable process, measures against its undue diminishment. It is well within the author- legislative ity lay upon custodian personal property Iona duty vacantia the of' disclosure and surrender without fee or act. compensation
The is not to the rules subject State relating in invitum jurisdiction exercise or imposition or counsel fees. costs
35 without suable, indirectly, The is not directly sovereign waiver. consent, by manifested action or by legislative Scott, Gallena v. 11 N. J. 231 And principle (1953). fee
also the assessment of a counsel precludes against State favor of the custodian of abandoned property.
There The is from costs. State immunity sovereign costs, absent its own courts is not liable for party litigant Deneen v. liability. statute rise to such expressly giving 80 Ct. 378, 1907); 225 Ill. N. E. 321 Unverzagt, (Sup. S., A., 101 1 L. R. Williams, 529, 297, v. 61 A.
State Md. law, pays
254
the common
1905). By
public
(Ct. App.
not, and the
no costs. “In
does
England,
King
rel. Phillips
stands in
ex
United States
place
King.”
clxix,
v.
131
25 L. Ed.
Gaines,
(1880).
U. S.
Appendix
The
United States.
by
recognized
principle
immunity
alone
waive or
may
qualify
Congress
Reeside v.
national
from a
for costs.
government
judgment
Walker,
272,
11 How.
(1930);
380,
And the of counsel fees and costs recovery cessful even in a suit adversary involving rights party, in the has no basis whatever private parties, interests sanctioned statute or contract common law. Unless *29 neither fees nor costs are or a counsel equity, recognized there contract, In the of a statute or can allowable. absence fees, either suit or recovery directly by of counsel no a breach of his bond. Textileather as indirectly damages Insurance Co., American Mutual Liability Corporation 1933). & A. But in while the 110 N. J. L. 483 equity, (E. there and is a party, recog
rule is the same between party fees, counsel “payable to award discretionary power nized fund, a or to his counsel complainant directly out of a to has, either maintained a suc he at his own expense, where the or increase a protection suit for preservation, cessful others, fund in which fund, or into a common brought 36 situated, share. custom or
similarly practice This may the originated theory the courts and was based on English should, conscience, that the others who benefit bear good their fair Cintas v. share of the of the litigation.” burden & American Car 133 301 Foundry Eq. (Ch. 1943), See, also, affirmed 135 N. J. & A. (E. 1944). Eq. Clements, Clements v. 129 N. J. & A. 1941); Eq. (E. 119 N. J. Universal Insurance Co. v. Indemnity Caltagirone, & Bartletta, A. Nobile v. 112 N. J. (E. 1936); Eq. Eq. & A. a mere incidental rule, Under this (E. 1933). the is not is whether advantage question litiga enough; tion was in the the interest eventu advancement of of those 48; entitled the fund. 14 Am. Jur. ally found to be to 1159; R. L. A. L. A. R. 753. Even without the “fund in court” immunity, sovereign doctrine here would not entitle custodian counsel fee. truly adversary; custodian proceeding asserted its own abandoned invoked right property, statute, escheat, of limitations to defeat pleaded sufficiency constitutional Escheat Act challenged itself and the I concur in the jurisdiction of court. and conclusions of Mr. Justice in this Jacobs reasoning behalf. rule,
There under the is no cited were it ground applicable State, fee to assess in favor of the against custodian for its unsuccessful resistance to the de- State’s mand, is a fee mere nor allowable for the disclosure of the liable escheat. Abandoned subject State, escheat; to the care and of the custody finally and there is no reason custodian should perceivable why State, have a counsel fee to the against charged which is the same State’s for its eventual property, thing, State’s The demand of the owner right. recognition unclaimed, for his no matter how had lain property, long would have been honored without compensation, this which the is the State has succeeded. right is the sense and Such statute. significance Compen- escheator, made sation is to be to the there is provision *30 attorney and of “the fees expenses payment But no mention shall have escheat.” who prosecuted the payment for made of the custodian. provision n direct” shall as the “such other fees and costs judgment moneys of the to pay the direction immediately follows 5% supplied “as reward having received to the escheator in the judgment evidence” resulting the information and the next suc has reference to the escheat, provision the court authorizing the same section paragraph ceeding who. attorney prosecuted fix the fees expenses to taken, and compared are to be These provisions escheat. allow the specific reference to the first as having together, of one implies The mention made the second. by ance alierius. esi exclusio unius the other. Expressio exclusion of 210a; 651. It was necessary Broom’s Maxims Litt. Co. who attorney for the prosecuting make provision fees and his the Attorney-General,
called from bar fund. A design made were naturally chargeable quite should- not proceed fees the custodian provide It is not implication. uncertain inference or doubtful from escheat .shall be that all proceedings without significance defendant except or to parties costs to “without fees such costs or counsel against may impose the court cause or reasonable has defended' “without who a defendant” 2A:37-23. 2:53-25; N. J. A. 8. N. J. 8. justification.” statute for the payment no being express provision There the escheated property, the custodian of fee a counsel practice The rule of court allowable. none is force as against are without utterly the rule under equity the sovereign. affirm the judgment.
I would and Justices -Vanderbilt,- Justice reversal—-Chief For . Burling —4 Oliphant, Wachenfeld and Jacobs —2. Heher For affirmance—Justices