Fagan v. Payen

• Decision Date: 15 November 1904
• Parties: FAGAN, Mayor, et al. v. PAYEN et al.
• Court: New Jersey Supreme Court

59 A. 568

75 N.J.L. 851

FAGAN, Mayor, et al.

v. PAYEN et al.

Court of Errors and Appeals of New Jersey.

Nov. 15, 1904.

Error to Supreme Court.

Petition of Mark M. Fagan, mayor of Jersey City, and others, against John C. Payen and others. Judgment for defendants. 57 Atl. 469. Petitioners bring error. Reversed.

Allan L. McDermott, for plaintiffs in error.

Collins & Corbin and George L. Record, for defendants in error.

REED, J. By the act of 1891 (P. L. 1891, p. 249; 1 Gen. St. p. 465), the mayors of cities of the first class were directed to appoint five persons as street and water commissioners—one for the term of three years, two for the term of four years, and two for the term of five years—and, at the expiration of the term of service of each of these commissioners, others were to be appointed in their place for the term of five years. In 1894 (P L. 1894, p. 524; 1 Gen. St p. 465) a supplement to the preceding act was passed. The purpose of the supplement was to make the board elective, instead of appointive, to at once end the terms of office of the then members of the board, and to provide for a temporary board until a charter election could be held. The present contest is between those claiming to be members of the board by virtue of an election under the supplement, and those claiming by virtue of an appointment by a mayor under the act of 1891. The claim of the latter is asserted upon the ground that the supplement providing for an elective board is unconstitutional. The vice of the supplemental legislation, as it is insisted, is that it is special, in that it will not apply to cities hereafter growing into the first class.

The section of the supplement which provides for the termination of the terms of the old board is section 1. It enacts that the terms of office of the members of the board theretofore appointed under the original act shall end upon the passage of the supplement. Section 2 provides for a new appointment of persons who shall constitute the board until an election shall be held, and those members elected shall have qualified. Section 3 defines the powers of this appointed board, and section 6 directs the method of organizing such board. The provisions concerning the election of a new board are contained in sections 3 and 4. Section 4 provides that, at the next municipal or charter election to be held in each city of the first class, there shall be elected five members of the board of street and water commissioners for said city, two of whom shall be elected for the term of one year, two for the term of two years, and one for the term of three years, and that at each municipal or charter election thereafter there shall be elected a member or members of the board of street and water commissioners to succeed the member or members whose term then expires, for the term of three years. Section 5 directs that upon the ballots to be used at the election to be held in such cities in 1895 the designation of the office to be filled shall be as follows: For members for term of one year; for members for term of two years; for members for term or three years—and that at each election thereafter the designation of the office to be filled shall be as follows: "For member or members of board." Section 4 (the first of these sections) provides a scheme which seems to be applicable not only to any existing cities of the first class, but also to any city which should thereafter come into the class. The "next municipal or charter election" would, as to existing cities, be the first election after the passage of the act; but, as to any future cities, the first election held in same. This section, it is perceived, together with section 7, providing that the mayor of each city of the first class shall have power to remove members of the board for cause, and section 8, providing how vacancies shall be filled by the mayor, constitutes an elective scheme which will include all cities of the first class. But it is insisted that the language of section 5 must be regarded, and that it is referable alone to existing cities of the first class. Assuming this to be so, the question remains whether it is such an integral part of the scheme that it cannot be excluded without destroying the plan. The section deals only with a matter of detail, namely, the form in which the ballots to be used were to be printed. It is manifest that without this section the election could be and would be carried on in substantially the manner provided for by the section. If the supplement had been passed without the fifth section, no one would doubt that a practicable method of electing the members of the board was enacted. The force of section 5 is limited to an ascertainment of the intention of the Legislature in enacting section 4. If it is obvious that the Legislature did not intend that any part of a statute should have effect unless the void part should operate, then the void part invalidates the whole. The vicious part must be distinct and separable, and, when stricken out, enough must remain to be a complete act, capable of being carried into effect, and sufficient to accomplish the object of the law as passed in accordance with the intention of the Legislature. Sutherland on Statutes, § 169. Allen v. Louisiana, 103 U. S. 80, 26 L. Ed. 318; People v. Porter, 90 N. Y. 68. A grant of power to pave streets was sustained, although coupled with a void provision that the costs should be assessed upon abutting owners. State v. Elizabeth, 40 N. J. Law, 278. A clause providing for a penalty is good, although the manner provided for recovering the penalty is bad. Campbell v. Board of Pharmacy, 45 N. J. Law, 241. An act authorizing a municipal corporation to pass ordinances to compel railroad companies to protect grade crossings, which act contains a proviso for a judicial review of the ordinance, is good as an authority to pass ordinances, although the method of review is void. McCullough v. Franklin, 59 N. J. Law,...