State v. City of Orange

• Decision Date: 18 February 1897
• Parties: STATE (DEXHEIMER, Prosecutor) v. CITY OF ORANGE et al.
• Court: New Jersey Supreme Court

36 A. 706

60 N.J.L. 111

STATE (DEXHEIMER, Prosecutor)

v. CITY OF ORANGE et al.

Supreme Court of New Jersey.

Feb. 18, 1897.

(Syllabus by the Court.)

Certiorari by the state on the prosecution of John P. Dexhelmer, against the city of Orange and others, to review an ordinance. Ordinance set aside.

Argued November term, 1896, before DEPUE, MAGIE, and GUMMERE, JJ.

Chandler W. RIker, for prosecutor.

Edward M. Colie, for defendants.

GUMMERE, J. The prosecutor was on May 7, 1895, appointed to the office of street commissioner of the city of Orange, for the term of three years. On May 4, 1896, the common council of that city passed a resolution declaring his office vacant. On May 7th the resolution was removed by certiorari into this court for review. On May 8th the common council reconsidered that resolution, and subsequently, at the same meeting, introduced an ordinance consolidating the office of the prosecutor and the city engineer into that of city engineer. This ordinance was finally passed on May 11th, and its validity is now sought to be tested by these proceedings. The foundation of the ordinance in question is "An act concerning certain cities of the second class, permitting the consolidation of offices, and relating to the election, appointment, terms, duties, and compensation of officers," approved March 22, 1895 (1 Gen. St p. 503). This act confers upon the common council or other legislative body of any city of the second class in this state, having a population of less than 35,000, power to consolidate any two public offices of said city, or of any of its departments, and to enact that the duties of the offices so consolidated shall thereafter be performed by one and the same person; and it is conceded by the prosecutor that it, in terms, justifies the action of the municipal defendant. He insists, however, that notwithstanding the statutory foundation upon which the ordinance rests, it must fall, for the reason that the statute itself is void, because it is violative of that provision of our constitution which prohibits the passage of any local or special law regulating the internal affairs of towns or counties. And this objection to the statute is, in our opinion, well taken. The act operates, not upon all the cities of the state, not even upon all cities of the second class, but only upon those cities of the second class which have a population of less than 35,000. Now, although the classification of cities upon the basis of population, for the purposes of legislation, has frequently been held by our courts to be legitimate, yet it is only so in those cases in which population bears a reasonable relation to the subject to which the legislature has applied it; and, if such classification is plainly illusory, it cannot be made the means of evading the constitutional interdict. Paul v. Gloucester Co., 50 N. J. Law, 585, 15 Atl. 272; Warner v. Hoagland, 51 N. J. Law, 62, 16 Atl. 166; Mortland v. Christian, 52 N. J. Law, 521, 20 Atl. 673; Heifer v. Simon, 53 N. J. Law, 550, 22 Atl. 120.

The purpose of the act under consideration is the consolidation of offices in cities. What relation does a fixed number of inhabitants (within certain limits) bear to this subject? How is it germane to the law? It is said that cities which have more than 35,000 inhabitants require a more elaborate system of government, and a greater number of officers, than cities having a smaller population, and therefore are properly excluded from the...