"It is not enough," said Chief Justice Beasley in Rader v. Union, 10 Vroom 509, "that it (a title) embraces the legislative purpose. It must express it." "To confound what the title of an act expresses with what it embraces is to nullify the mandate of the constitution." Griffith v. Trenton, 47 Id. 23.

"It has been thoroughly settled," said Chancellor Magie in State v. Twining, 44 Vroom 683, "by repeated decisions of our courts, including the court of last resort, that to accord with this constitutional provision the title of every act must not only include, but must also express, its object."

Bearing this practical distinction in mind, it is evident that the title of the original Martin act expresses its object as falling under two distinct heads, one relating, as Justice Depue has said, to certain conditions existing anterior to the passage of the act which are therefore properly termed "arrearages," and the other relating to certain future contingencies which are enumerated. Arrearages and their adjustment admittedly come wholly under the first head mentioned in the title, and as to them no notion of futurity is suggested by the title, still less is expressed therein. Indeed the very term "arrearage," signifying as it does something that is to the rear of, i. e., behind one, is so inept a term by which to express something that is ahead of one that its employment in such a sense savors rather of an intentional perversity of language than of the intelligent compliance by a legislative body with a requirement of the constitution.

We think it clear that the object of the supplement of 1891, if construed as the Circuit Court construed it, is not expressed in the title of the original act of 1886. Hence if such construction be given to it the supplement itself is an unconstitutional enactment, which is but another way of saying that such construction should not, if possible, be given to it.

The result we reach is that under the proper construction of the supplement of 1891 the Circuit Court erred in confirming the adjustments reported by the commissioners in the cases of National Docks Railway Company, New Jersey Warehouse and Guarantee Company, E. Caulfield, F. L. Liver

Long Dock Co. v. State Board of Assessors.

78 N. J. L.

more, Christian Kaiser and L. Lilliendohl, for the reason that in these cases there were no arrearages of taxes prior to the approval of such supplement.

In the remaining cases included in report No. 113, arrearages appear to have existed prior to the date of such supplement, indeed prior to the approval of the original act of 1886, hence these adjustments are not challenged by any of the reasons filed by the prosecutors and are therefore unaffected by our present adjudication.

The order brought up by this writ of certiorari being erroneous in the respects indicated, is reversed and set aside to the end that a new order may be made by the judge of the Circuit Court.

LONG DOCK COMPANY, PROSECUTOR. v. STATE BOARD OF ASSESSORS ET AL.

MORRIS AND ESSEX RAILROAD COMPANY, PROSECUTOR, v. STATE BOARD OF ASSESSORS ET AL.

CENTRAL RAILROAD OF NEW JERSEY, PROSECUTOR, v. STATE BOARD OF ASSESSORS ET AL.

Argued February 25, 1909-Decided June 7, 1909.

1. In the ascertainment of the value of second-class railroad property under subdivision 2 of section 3 of the revised act of 1888 for the taxation of railroad and canal property, the state board of assessors is required to value such property at the value it has in exchange for money as shown by the testimony, i. e., at its market value. Additional value imparted to such property by its use under a railroad franchise should not be included in such ascertainment.

2. The duty of the state board of assessors under the supplemental act of March 4th, 1908, is the same, and none other than that required of them by section 3 of the revised act of 1888 recited in such supplement.

On certiorari.

49 Vroom. Long Dock Co. v. State Board of Assessors.

These writs of certiorari bring up for review the action of the state board of assessors in placing a valuation upon the terminal lands of the prosecutors in Jersey City and Hoboken under the supplement to the act for the taxation of railroad and canal property, approved March 4th, 1908. Pamph L., p. 15.

There is one question that is raised by the reasons filed in each case the precise nature of which will be made to appear by a brief recital of antecedent legislation and adjudication.

In 1884 the original statute for the taxation of railroad and canal property was enacted by the provisions of which all the property of these corporations was to be assessed for taxation, property not used for railroad purposes being made assessable. by local assessors and all property that was so used being made assessable by a state board of assessors who were required in acertaining the true value of such property to ascertain the value-first, of the main stem; second, of other real estate used for railroad purposes (called second-class railroad property); third, of tangible personal property, and fourth, of the franchise. The revision of this act in 1888 did not vary these requirements.

The duty thus imposed was performed by the state board of assessors uninterruptedly from 1884 to 1905, when by the provisions of the so-called "Perkins act" (Pamph. L. 1906, p. 571) such duty as to second-class railroad property was transferred to the local municipal assessors, who made such assessments for the years 1906 and 1907.

On March 3d, 1908, the "Perkins act" was declared to be unconstitutional (Central Railroad Co. v. State Board of Assessors, 46 Vroom 771), and on the following day the legislature passed the remedial act under which the valuations and assessments now before us were made by the state board of assessors. This supplement, after reciting the foregoing facts and the further fact that the time within which the state board of assessors might make a proper assessment had by reason of the premises expired, enacted that the time for the performance by the state board of assessors of their duty under the revised act of 1888 with respect to the valuation and as

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78 N. J. L.

sessment of second-class railroad property for the years 1906 and 1907 be extended, and that within such extended time such duty should be performed.

In their performance of this duty which, saving as to time, was precisely the original and normal duty imposed on such board by the revised act of 1888, the state board of assessors placed upon the terminal lands of the respective prosecutors the valuations shown by the returns to these several writs of certiorari. These valuations are now attacked by each of the prosecutors upon the ground that as part of the taxing scheme in question they are in excess of the true value of said lands. The returns to these writs bring up the preliminary assessments and the objections thereto filed with the state board of assessors, together with the exceptions to the final determination of the board. Upon the questions of fact a voluminous mass of testimony taken before the state board is returned upon the weight of which as well as upon the legal questions involved counsel representing the prosecutors and the two taxing districts affected have presented comprehensive arguments both orally and by briefs prepared both before and after the oral argument.

Before Justices GARRISON, BERGEN and VOORHEES.

For the Long Dock Company, William H. Corbin.

For the Morris and Essex Railroad Company, William D. Edwards.

For the Central Railroad Company, George Holmes and Richard V. Lindabury.

For Jersey City, Warren Dixon.

For the city of Hoboken, Horace L. Allen.

The opinion of the court was delivered by

GARRISON, J. From the testimony brought up by these writs we find two facts touching the valuation placed by the

49 Vroom. Long Dock Co. v. State Board of Assessors.

state board of assessors upon the terminal lands of the respective prosecutors to review which these suits have been brought—first, that as to the lands of each of the prosecutors such valuation is in excess of the value such lands have in exchange for money, i. e., their market value; second, that the valuation of such lands by the state board of assessors, in so far as it is in excess of their market value, is based upon and represents the value imparted to such lands by their actual use for railroad purposes under the franchises of the respective corporations so using them.

In view of these findings of fact the pertinent legal questions are first, what is the nature of the duty imposed upon the state board of assessors by the supplemental act of March 4th, 1908? (Pamph. L., p. 15), and second, in the performance of the duty imposed by that supplement, is the state board of assessors to value second-class railroad property at its market, i. e., its money exchange value, or are they to include in such valuation the additional value that is imparted to such property by reason of its use under the franchise of the company so using it?

The first of these questions is answered by the act itself, viz., that the duty it requires of the state board of assessors is that required by the provisions of subdivison 2 of section 3 of the revised act of 1888. There is no suggestion in the supplemental act that the state board is to perform any other or different duties under the recited section of the revised act than such board would have performed in due course if the Perkins act had never been passed. The sole question, therefore, is whether or not in the valuation of second-class railroad property under subdivision 2 of section 3 of the act of 1888 the state board of assessors is to include in and enhance such valuation by an additional value that is imparted to such property by the circumstance that it is used under a railroad franchise.

We think that the increase of value over and above its market value that is imparted to second-class railroad property by reason of its use under a railroad franchise should not be included in the valuation of such property by the state