87 N.J.L. 541 | N.J. | 1915
The opinion of the court was delivered by
This action was brought under the first section of “An act to prevent the unlawful waste and destruction of timber in this state.” Comp. Stat., p. 5396. The plaintiff having filed his complaint, defendant moved to strike it out upon three grounds—first, that the Timber act referred to in the complaint has been repealed; second, that the statute does not permit an action to be brought under it in the Supreme Court; third, that the complaint does not state any offence against the statute. Having heard argument upon the motion, the court below considered that the first ground upon which the motion was rested was well taken, and ordered the complaint to be stricken out and judgment final entered for the defendant. The plaintiff appeals from the judgment entered pursuant to such order.
The statute under which the action was brought was passed in 1820. Penn. Laws, p. 700. The first section provided that if any person should cut down, cany away or destroy, any tree, sapling or pole, standing or lying on any land within this state to which such person had not any right or title, without leave first had and obtained of the owner thereof, he should forfeit and pay for each tree, sapling or pole so cut down, carried away or destroyed, the sum of $8, one-half to the owner of the land, and the other half to the person who should sue for and prosecute the same; and that whenever anj' person should be sued or prosecuted before any justice of the peace, it should be lawful for the justice to proceed whenever the penalty demanded should not exceed $100, notwithstanding any claim of the defendant to the land whereon the trees, saplings, or poles were cut. The second section made the same offence criminal, and punishable by a fine not exceeding $100, or imprisonment at hard labor not exceeding one year; but contained a proviso that a person who had been subjected to a prosecution for a penalty as
This statute remained upon the statute books without alteration or amendment until 1874, when the general laws of the state were revised by the legislature. By that revision the first section of the Timber act,was retained in its original form and under its original title. Rev., p. 1187. Sections 2, 3, 4 and o were expressly repealed (Rev., p. 1120, 1399, § 610) and were at the same time re-enacted in their original form as sections 103-106 of the Crimes act (Rev., p. 245), where the revisers considered, apparently, that they more properly belonged. Eo actual change in the statutory scheme which had been in force since 1820 occurred until the Crimes act was again revised in 1898, when the legislature amended the proviso of section 2 of the original Timber act (section 103 of the Crimes act), so as to read as follows: “Provided this section shall not apply to any person who shall do the same by mistake or accident, or without any intention to injure or defraud the owner thereof.” Comp. Stat., p. 1788, § 138.
The contention made by the defendant, and which prevailed in the trial court, was that the effect of this amendment of 1898 was, by necessary implication, to repeal the first section of the Timber act, and take away the civil remedy (Clark v. Collins, 15 N. J. L. 473) provided by it.
Having concluded that the ground upon 'which the trial court struck out the plaintiff’s complaint, and ordered judgment against him, is untenable, we have examined the other reasons upon which the defendant based his application; for, if either of them is sound, then the action of the trial court which is now the subject of challenge must be sustained, although the reason given for it by that court cannot be supported.
The second ground upon which the motion to strike out was rested was that the civil proceeding provided by the Timber act was only cognizable before a justice of the peace. But a mere glance at the first section of the statute shows the fallacy of this contention. It provides a penalty of $8 for each tree, sapling or pole cut down, carried away or destroyed, and authorizes a prosecution before a justice of the peace whenever the penalty demanded shall not exceed $100. When it is remembered that the limit of jurisdiction of the justice’s court at the time when this statute was enacted was $100, and that the penalty proscribed by the act, where the number of trees cut down and carried away or destroyed should be more than twelve, would exceed the limit of that jurisdiction, it is obvious that the prosecution of the civil remedy, where the sum sought to be recovered is in excess of $100, must be carried on in one of the courts of superior jurisdiction.
As to the third ground relied upon by the defendant, viz.,
The judgment under review will he reversed.
For affirmance—Kalisci-i, Wi-iite, JJ. 2.
For reversal—The Chancellor, Ci-iiee Justice, Garrison, Swayze, Trenciiard, Parker, Bergen, Minturn, Vre-DENBURGH, TERHUNE, ILEPPENI-IELMER, JJ. 11.