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Molina v. Comision, &c.

92 N. J. L.

The case shows clearly that they amounted to what is called by the defendant a sequestration of Molina's property. The case does not turn upon the proper or the improper translation of words; nor does it depend at all upon the use of the word "sequestration" by the defendant. It depends upon the acts of the parties, and the authority given.

The announcement, as it is called, to Alvarez, which is set forth in the order to Barera, states that the government has resolved to sequester the properties of Molina with the purpose of beginning the investigation of the civil and penal responsibilities which the state will exact. It was, then, a sequestration at the beginning of a proceeding, call it judicial or not. It was a sequestration by way of mesne process, and not by way of final process; for evidently, before Molina's title could be divested under the proceeding, there was meant to be some investigation. This investigation was had, and Molina was found to come within the class of persons whose property was to be sequestered. The rights that passed by the sequestration were such rights as would pass upon a sequestration by way of mesne process under our law; those rights are rights of custody only, and not of title. It has been held that on such a sequestration under our law a sale may be ordered by the court of certain kinds of property, including the produce of a farm. Shaw v. Wright, 3 Ves. Jr. 22: Goldsmith v. Goldsmith, 5 Hare 123. Where a government has sequestered property no doubt it also may order a sale. But speaking generally, the position of sequestrators is that of custodians only.

That this was the nature of the procedure in the present case is shown by the express limitation upon the authority given to Alvarez, as the representative of Molina. He is ordered to abstain as long as the sequestration lasts, from disposing in any way of Molina's property under his strictest responsibility to the government. This prevented any sale by him; and there is no suggestion of any sale by the government or its agents. That is excluded by the fact that investigation was to be made before Molina was condemned. Alvarez is also told by the order of General Alvarado that

92 N. J. L.

Molina v. Comision, &c.

this does not deprive him of the administration of such properties; that he must give an account of it to the provisional superintendent and controller, Andres Barera. The subsequent papers, especially the detailed report of July 12th, 1916, from the director general of sequestered property, show that it was the policy of the government to keep the administrator's staff, which was officiating, in control of the sequestered property, for the very obvious reason that in that way the property would be made very much more productive.

It is clear that under the order of April 16th to Barera, he was not to have the actual management of the property, but to receive the accounts of the administration by Alvarez, Molina's own representative. It is quite likely that the administration later involved the turning of the property, or the proceeds of the land, into cash, notwithstanding the express prohibition in General Alvarado's order to Alvarez; and it may be, and I think it probable, that the accounting by Alvarez to Barera involved not merely a statement of account, but the actual turning over of proceeds of sales if any were subsequently permitted, and it is possible that Alvarez, as the recognized representative of Molina confided. with the administration of Molina's property by General Alvarado himself, subsequently was permitted to sell the produce of the farm and to pass a good title thereto. This, however, is not the claim of the defendant. Such a claim would not avail on this motion since in the absence of an express order for sale, it involves inferences to be drawn by a jury from facts proved. The defendant's present claim is that in some way and at some time the revolutionary government had power to sell and pass a title to the crops of henequen. The evidence makes it probable that that was the situation at least as to a part of the crops; but as counsel for the plaintiff well argued, in order that the defendant. may prevail upon the present motion it must show not only that there was authority to sell part of the crops, but that there was authority to sell all; for if the title to any part of the henequen converted by the present defendant was im

92 N. J. L.

Molina v. Comision, &c.

perfect, this action can be maintained, although the amount of damages might be less. Probably this is the true situation. Considerable time elapsed before the Mexican government took over the revolutionary government of Yucatan, the administration of the sequestered estate. Nieto testifies that the general manager in the republic was first appointed about the end of 1915. It may well be that the revolutionary govcrnment of Yucatan would not, or could not, take the responsibility of parting with the property without the action of the Mexican government. If so, there was in the meantime no one authorized to sell the henequen. It was impounded, but not yet forfeited or condemned, if in fact it

ever was.

The motion to dismiss the complaint must be denied unless I am required to grant it because both plaintiff and defendant are citizens of Yucatan and the wrong complained of was committed there. I know of no such rule in New Jersey; and the cases cited by counsel from the New York courts, to which I have had access, do not sustain his position. On the contrary, the first case cited, Robinson v. Oceanic Steam Navigation Co., 112 N. Y. 315, quotes McCormick v. Penna. Central Railroad Co., 49 Id. 303, to the contrary; and calls attention to the fact that the then pending case was governed by the Code of Civil Procedure enacted after the decision of the McCormick case. We have no such statute as required the decision reached by the New York Court of Appeals in Robinson v. Oceanic Steam Navigation Co.

Latourette v. Clark, 30 How. Pr. 242, is said in Burdick v. Freeman, 120 N. Y. 420, to be regarded as overruled; and in the latter case the court did take jurisdiction although it said that the Supreme Court might in its discretion have refused to entertain the action. This is far from holding that there is a lack of jurisdiction in such a case.

Hoes v. N. Y. & N. H. & H. R. Co., 173 N. Y. 435, comes nearer being in point, but the ground of decision there was, as the court said, that it presented a case of collusion and legal fraud.

92 N. J. L.

Molina v. Comision, &c.

I have not felt called upon to examine the other New York cases referred to, which were decided by inferior courts.

Even the case of Dewitt v. Buchanan, 54 Barb. 31, cited in defendant's brief, implies that special reasons may justify an action by a non-resident plaintiff against a nonresident defendant for an injury happening abroad. Such a special reason exists in this case, where the proceeding is in rem to reach property attached in our jurisdiction.

Even if counsel for the defendant are right in their contention that the henequen said to have been converted by the defendant had all of it been sold to the defendant by the authority of the government of Mexico or of Yucatan, it would not be my duty to dismiss the complaint. The rule was stated by the United States Supreme Court in Ricaud v. American Metal Co. Justice Clarke for the court says that the rule that the courts of one independent government will not sit in judgment on the validity of the acts of another done within its own territory, does not deprive the courts of jurisdiction once acquired over the case. It requires only that when it is made to appear that the foreign government has acted in a given way on the subject-matter of the litigation, the details of such action or the merit of the result can not be questioned, but must be accepted by our courts as a rule for their decision. To accept a ruling authority and to decide accordingly is not a surrender or abandonment of jurisdiction, but an exercise of it. The Supreme Court in that case in fact, decided the question upon the merits; as it had also previously decided the case of Underhill v. Hernandez, 168 U. S. 250. In the case of the American Banana Co. v. United Fruit Co., 213 Id. 347, it is true that the action of the court was a dismissal of the complaint; but it was after a trial upon the merits, not on a mere preliminary motion. The action taken was equivalent to the direction of a verdict under our practice after all the evidence is in; and the defendant would be swift if a verdict should be directed in its favor to call attention to the difference in the legal effect of a judgment thereon, and the mere dismissal of the

O'Brien v. Public Utility Board.

92 N. J. L.

complaint. Moreover, if I understand the case, the claim of the defendant is a claim of right not shown by documents which the court must construe, but shown by facts, by acts of the revolutionary authorities, or the Mexican government, the effect of which and the inferences to be drawn therefrom, are the proper subjects of inquiry by a jury, as well as the date upon which the alleged right to sell accrued. The present motion is denied, with costs.

CHARLES F. X. O'BRIEN, PROSECUTOR, v. BOARD OF PUBLIC UTILITY COMMISSIONERS AND PUBLIC SERVICE RAILWAY COMPANY, RESPONDENTS.

Argued October 14, 1918-Decided October 18, 1918.

1. A resident, citizen and owner of real estate, in a municipality in which some of the lines of a street railway run, has a proper standing to prosecute a writ of certiorari to review an order by the board of public utility commissioners increasing the rate which the railway is allowed to charge for transportation of passengers.

2. The scope of the Public Utility act is very broad and was meant to give full control of all public utilities to the board so far as could be done by legislation.

3. In order that the board of public utility commissioners may acquire jurisdiction to grant an increase in rates to a public utility, under section 17 of the Public Utility act (Pamph. L. 1911, p. 374) it is not necessary that there be evidence before the board of the value of the property of such public utility, where the justice and reasonableness of such rate can be determined without first ascertaining the value of the property.

4. A just and reasonable rate for the service rendered by a public utility is rather a question of business judgment than one of legal formula, and must often be tentative, since the exact result cannot be foretold, and the real test of the justice and reasonableness of an individual rate is that it should be as low as possible and yet sufficient to induce the investment of capital in the business and its continuance therein.

On certiorari.

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