Opinion
06-01-1914
WILSON, Atty. Gen., v. BOARD OF CHOSEN FREEHOLDERS OF GLOUCESTER COUNTY.
Nelson B. Gaskill, Asst. Atty. Gen., for the State. John Boyd Avis, of Woodbury, for defendant.
Information by Edmund Wilson, Attorney General of the state of New Jersey, against the Board of Chosen Freeholders of the County of Gloucester, for an injunction. Injunction granted.
Nelson B. Gaskill, Asst. Atty. Gen., for the State. John Boyd Avis, of Woodbury, for defendant.
The state erected a memorial statue on park lands of the defendant, known as Ft. Mercer, in Gloucester county, to commemorate the battle of Red Bank, fought during the Revolutionary War, which, upon being completed, was delivered into the "care and supervision" of the board of freeholders of Gloucester county, the defendant, as provided by chapter 79 of the Laws of 1905, p. 163. A commission appointed under the act chose the design of the monument and contracted for its completion, and selected the site in the park, as it was empowered to do. The Sons of the Revolution in New Jersey placed on each of the four sides of the monument a tablet with inscriptions explanatory of the battle as authorized by a joint resolution of the Legislature of 1909 (P. L. 1909, p. 549). The tablets had the approval of the committee named in and as required by the resolution. In putting on these tablets, it was necessary to displace one which the monument building commission had affixed, the inscriptions upon which dealt chiefly with facts attending the building of the statue. Evidently piqued at what was regarded as an intrusion upon its dominion over the monument, the board of freeholders promptly removed the displacing tablet and substituted the original. Thereupon the Attorney General filed this information to compel the restoration of the removed tablet and to restrain further interference. The charge in the information that the board would repeat what it had done if the offending tablet were restored is not denied by the answer and must be taken as admitted.
The board of freeholders, in justification of its conduct, sets up that, the monument having been erected upon its land, it became a part of the realty, and that the title thereto passed out of the state and the control over it, beyond the Legislature. Although the monument is firmly imbedded in the ground and, within the scope of its usefulness and purpose, was intended to be a permanent structure, it nevertheless retained its independence of the realty and the character of a removable fixture. It was built on the lands of the county with the permission and consent of the board of freeholders, from which unqualified circumstance an agreement is to be implied between the state, as licensee, and the board, as landowner, that it was to remain personal property. Bronson on Fixtures, p. 145; Pope v. Skinkle, 45 N. J. Law (16 Vroom) 39. This rule obtains between individuals and a fortiori should it be applied when public property is involved. The language of the act, under the authority of which the monument was created, plainly indicates that its erection upon the lands of the county was not to work a conversion of property, and that the state's right of ownership in it should remain unimpaired and exercisable whenever and however the Legislature saw fit so to do. The provision that, upon its completion, only "the care and supervision of said monument or statue shall devolve upon and be vested in the board of chosen freeholders of the county of Gloucester" negatives any notion of a change of title and is an implied assertion of its retention by the state, in which the board, by accepting the care and supervision, acquiesced.
But a vindication of the state's right to the statue may be rested upon a broader basis than the rule of law applicable to removable fixtures. The contribution by the board of chosen freeholders of the land for a statue intended to be a permanent and lasting memorial of the valor and success of the colonial troops was more than a mere permission or license. It was a cession by the county to the state of the use of the land, by which the state acquired an easement, to endure as long as the land should be used for the purpose to which it was dedicated.
Thus, in the exercise of its right of ownership, the state appropriated funds for and delegated power to the patriotic organization already named, to purchase tablets with inscriptions explanatory of the battle and to place them on the monument. This work the defendant has prevented and threatens to continue to obstruct, which will be enjoined unless two additional grounds urged by counsel have merit. One is that as caretaker, having the supervision of the monument, the duty was imposed upon the board to preserve the monument intact, as completed by the building commission, and delivered to the board, and in this to prevent the removal of the commission's tablet; the other that the inscription on the tablet substituted for the original is not explanatory of the battle, as required by the joint resolution. The answer to these contentions is that, by the provision of the act above quoted, the state committed simply the "care and supervision" of the monument to the board of chosen freeholders, as its agent, subject at all times to the legislative control and direction, which relation the Legislature undoubtedly has the power at any time to terminate as it has the right to add to, take from, or altogether remove the monument, if in its wisdom it should so elect; and that when the Sons of the Revolution, with the approval of the committee appointed by the joint resolution, selected four tablets, it was well within that body's power in making room for them on the monument to remove the one officiously put there by the building commission; and further that, if in its judgment the inscription on one or more of the four tablets was not to the taste of the board or violated the law, it was not the board's right to forcibly interpose. The power to correct was the state's prerogative, to be effectuated throughother channels. The board of freeholders, even though it had the care and supervision of the monument, in interfering with the work directed by the state, was as much a trespasser and wrongdoer as if the acts complained of had been committed by a stranger.
There will be an injunction perpetually restraining the board of chosen freeholders of the county of Gloucester from in any manner obstructing the Sons of the Revolution in New Jersey in removing from the said monument the building commission's tablet and in replacing the tablet heretofore removed by the board, and thereafter from removing the four tablets of the Sons of the Revolution or in any manner interfering with the same. This is not, however, to be construed as taking from the board its duty of care and supervision. Costs will be awarded against the board.