Henninger v. Bd. Of Chosen Freeholders Of Bergen County
| Decision Date | 24 October 1949 |
| Docket Number | No. A-15.,A-15. |
| Citation | 68 A.2d 833 |
| Parties | HENNINGER v. BOARD OF CHOSEN FREEHOLDERS OF BERGEN COUNTY et al. |
| Court | New Jersey Supreme Court |
OPINION TEXT STARTS HERE
Action by Mary M. Henninger against the Board of Chosen Freeholders of the County of Bergen and others for a declaratory judgment as to the validity of R.S. 30:9-12.1 et seq., N.J.S.A., authorizing erection of county hospitals and for an injunction.
The Superior Court, Appellate Division, Eastwood, J.A.D., 2 N.J.Super. 1, 64 A.2d 365, dismissed plaintiff's appeal from an order denying her application for an injunction and from a judgment of no cause of action rendered against her in Superior Court, Law Division, Bergen County, plaintiff appealed to the Appellate Division and the appeal was certified to Supreme Court.
The Supreme Court, Oliphant, J., held that regardless of the constitutionality of challenged statute, defendant board had power under R.S. 40:32-3, N.J.S.A., and constitutional grant of implied power to erect, maintain and operate a county hospital and affirmed the judgment of no cause of action.
Walter H. Gardner, Passaic, argued the cause for appellant (Gardner & Williams, Passaic, attorneys).
Milton T. Lasher, Hackensack, argued the cause for defendants-respondents, Board of Chosen Freeholders of the County of Bergen.
The opinion of the court was delivered by
Appellant appeals from a judgment of no cause of action rendered against her in the Superior Court, Law Division, Bergen County. The appeal was to the Appellate Division but was certified directly to this Court.
The respondent, the Board of Chosen Freeholders of Bergen County has authorized and is constructing a hospital at Bergen Pines.
Plaintiff, as a resident and taxpayer of Bergen County, instituted suit by complaint seeking a declaratory judgment on (a) the validity of Chap. 34, P.L.1947, R.S. 30:9-12.1 et seq., N.J.S.A. (hereinafter called the 1947 act), (b) declaring the rights and status of the plaintiff thereunder, (c) that the Board of Chosen Freeholders has no right or authority to enter into contracts pursuant to said statute and (d) enjoining and restraining the Board.
The injunction prayed for was denied by the trial court and plaintiff appealed this phase of the case to the Appellate Division. There that appeal was dismissed on the ground that, regardless of the constitutionality of the 1947 act, the Board of Freeholders had power under R.S. 40:32-3, N.J.S.A. (hereinafter called the 1918 act) to erect, maintain, repair, alter, enlarge, furnish and equip County hospitals such as the one here in question. No finding was made as to the constitutionality of the 1947 act, Henninger v. Board of Chosen Freeholders of County of Bergen et al., 2 N.J.Super. 1, 64 A.2d 365 (App.Div.1949).
In the trial division the primary issues were (1) Did the Board act under the 1947 act or was there authority outside that act for the erection of the hospital? (2) If the Board acted under that act, is it constitutional?
While the constitutionality of the 1947 act is seriously questioned, we do not pass upon it for the reason counsel for the Board disclaimed any intention or purpose to proceed thereunder, asserting there is ample authority under the 1918 act for its purposes and further, the record is devoid of any evidence which could lead to the conclusion the actions of the Board were taken under the 1947 act.
Appellant argues the authority respecting County hospitals, granted a Board of Freeholders under the 1918 act, being a general authority, is by implication repealed by the 1947 act. Assuming the constitutionality of the latter act we are not persuaded the 1918 act was repealed thereby. Repeals by implication are not favored in the law. In the absence of an express repealer indication of an intention of the Legislature to repeal a prior act must be clear and compelling. There is a strong presumption against such an intention. McNeely v. Woodruff, 13 N.J.L. 352 (Sup.Ct.1833); Adams v. Mayor and Common...
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