Hetrick v. Roberts, 34.
| Decision Date | 22 September 1937 |
| Docket Number | No. 34.,34. |
| Citation | 118 N.J.L. 586,194 A. 557 |
| Parties | Clarence E. F. HETRICK, Mayor, Thomas H. Pratt, John C. Palmateer, and Harry B. White, Councilmen, and Milford Farley, City Manager of the City of Asbury Park, and the City of Asbury Park, a Municipal Corporation of the County of Monmouth, Prosecutors-Appellants, v. Carlton ROBERTS, Samuel H. Calvert, George Smock, and James Fosyth, Defendants-Respondents. |
| Court | New Jersey Supreme Court |
Appeal from Supreme Court.
Ward Kremer, of Asbury Park, and Harry Cassman, of Atlantic City, for appellants. Lester C. Leonard, of Red Bank, for respondents.
The judgment under review herein should be affirmed for the reasons expressed in the opinion delivered by Mr. Justice Parker in the Supreme Court, reported in 117 N.J. Law, 584, 190 A. 504.
For affirmance: The CHANCELLOR, the CHIEF JUSTICE, Justices TRENCHARD, CASE, BODINE, DONGES, and HEHER, and Judges DEAR, WELLS, WOLFSKEIL, and COLE —11.
For reversal: Justice PERSKIE and Judge RAFFERTY —2.
With all due deference to my colleagues I do not share the views expressed in the opinion of the court below, and adopted here.
The facts are not in dispute. They are fully stated in the opinion of the Supreme Court. The title of the challenged act is An Act concerning municipalities." Chapter 160, P.L.1936, p. 372 (N.J.St. Annual 1936, § *136 —4700(416) et seq.). It is conceded, it is, in fact, expressly provided in the very first paragraph of the act itself (section *136 —4700(416), that a beach commission shall be appointed in every municipality of the state "under control of the Municipal Finance Commission, and which shall own the beach and upland contiguous thereto." It seems clear to me that these provisions of limitation flatly contradict the title of the act. Surely "No one, on reading the title, could reasonably understand that the body of the act was to have so limited an effect." Beverly v. Wain, 57 N.J.Law 143, 144, 30 A. 545; Coutieri v. New Brunswick, 44 N.J.Law 58. True, our courts have at times explained and distinguished the holding in Beverly v. Wain, supra (see Johnson v. Asbury Park, 60 N.J.Law 427, 431, 39 A. 693; Kennedy v. Belmar, 61 N.J.Law 20, 25, 38 A. 756; Allison v. Corker, 67 N.J.Law 596, 599, 52 A. 362, 60 L.R.A. 564), but it is also true that it stands unreversed. Until such time as it may be reconsidered, it is, in my opinion, controlling and dispositive of this point. No construction, liberal or otherwise, can transcend the truth —the conceded fact, that by its title the act concerns all municipalities, but by its provisions it concerns only a specifically limited class of municipalities.
I am, moreover, of the further opinion that the act is fatally defective because it violates paragraph 11, § 7, art. 4, of our State Constitution, which prohibits the passage of special laws to regulate the internal affairs of towns and counties, and the appointing of local officers or commissions to regulate municipal affairs.
The Supreme Court (117 N.J.Law 584, 190 A. 504, 506) observed that, "if the act were restricted to municipalities now under a finance commission, it would probably be unsound." Agreed. And it further observed, "Or if, again, it were restricted to those now owning a beach front, it would likewise be faulty." Agreed. But we are told because the act is not restricted in either particular it is therefore valid. Non sequitur.
I think that the mere joinder of both particulars in the act gives the act no greater efficacy than that which flows from the conceded unsoundness of each particular thereof, for the whole is equal to the sum of it; parts.
The act in question places Asbury Park notwithstanding the fact that it is a seacoast municipality and that other...
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