Hetrick v. Roberts

• Decision Date: 13 March 1937
• Docket Number: No. 235.,235.
• Citation: 190 A. 504
• Parties: HETRICK et al. v. ROBERTS et al.
• Court: New Jersey Supreme Court

190 A. 504

HETRICK et al.

v. ROBERTS et al.

No. 235.

Supreme Court of New Jersey.

March 13, 1937.

Syllabus by the Court.

1. Chapter 160 of the Laws of 1936 (P. L. p. 372 [N.J. St.Annual 1936, § *136—4700 (416) et seq.]), entitled "An act concerning municipalities," is not unconstitutional as failing to express its object in the title.

2. Chapter 160 of the Laws of 1936 (P. L. p. 372) is not unconstitutional as violating the provision that "the Legislature shall not pass private, local or special laws regulating the internal affairs of towns and counties; appointing local officers or commissions to regulate municipal affairs."

Certiorari by Clarence E. F. Hetrick and others, city officials of Asbury Park, against Carlton Roberts and others, members of the Asbury Park Beach Commission.

Writ dismissed.

Argued October term, 1936, before PARKER and LLOYD, JJ.

Ward Kremer, of Asbury Park, and Harry Cassman, of Atlantic City, for prosecutors.

Lester C. Leonard, Sp. Asst. Atty. Gen., for defendants.

PARKER, Justice.

The writ in this cause is addressed to "Carlton Roberts, George Smock, Samuel H. Calvert and James Forsyth, the Beach Commission of Asbury Park," and calls for "a certain action or proceeding appointing" them by name as members of the Asbury Park Beach Commission, and any and all proceedings done and taken by them as such Beach Commission. Fundamentally the writ is aimed at chapter 160 of the Laws of 1936 (P.L. p. 372 [N.J.St.Annual 1936, § *136—4700(416) et seq.]), entitled "An Act concerning municipalities." This act applies to "every municipality of this State under control of the Municipal Finance Commission." That language in turn harks back to chapter 340 of the Laws of 1931 (P.L. p. 830), entitled "An Act concerning municipal finances" since amended many times (N.J.St.Annuals 1931-1936, § *136— 4700(101) et seq.). The act of 1931, one of our financial emergency statutes, provided that in case of default on municipal bonds and on summary investigation by a justice of this court, such justice may make an order declaring such default (section 101 N.J.St.Annual 1931, § *136—4700(101), and on filing the same, the statute itself (section 102 N.J.St.Annual 1931, § * 136—4700(102) designates the Attorney General, the State Tax Commissioner, and the Commissioner of Municipal Accounts as the "Municipal Finance Commission." The result seems to be a quasi receivership of the municipality in default, the original governing body continuing to function in a limited way, controlled both as to action and nonaction by the Municipal Finance Commission, in respect to matters of a financial character. See Hourigan v. North Bergen Tp., 113 N.J.Law, 143, 149, 172 A. 193, 785. A number of municipalities, of various grades, are subject to this act. The City of Asbury Park is one of them, and the act of 1936, first cited above, is applicable to it. The meat of the present controversy is in the very first clause of the act of 1936 (N.J. St.Annual 1936, § *136—4700(416), which reads: "In every municipality of this State under control of the Municipal Finance Commission, and which shall own the beach and upland contiguous thereto, a beach commission shall be appointed." The act goes on to provide for method of appointment, powers, etc., which are in general to control the beach, make concessions for bathing, amusement, and other purposes, collect revenue, and deposit it in a special fund. Police powers are also conferred. It may be said, in a broad and general way, that the necessary effect of the act is to remove the owned beach front from the control both of the original governing body and the municipal finance commission.

Pursuant to this act, the Governor appointed four citizens of Asbury Park as members of the Beach Commission; they qualified, after a rule to show cause was made herein, but had not functioned when the present writ issued, on July 17, 1936. Consequently they have not taken any action beyond qualifying; and hence the legal attack is on the statute itself and the appointments made thereunder by the Governor, which necessarily stand or fall with the statute.

The rule to show cause why certiorari should not be allowed is dated June 23, 1936, and contains a stay of any exercise of functions as commissioners. However, they qualified on July 1. The writ issued July 17 and they were then in office. There may be some question as to whether certiorari, rather than quo warranto, is the proper remedy; but as this case is of importance as involving the constitutionality of a statute, it seems better not to deal with a point not stated by either side, particularly as the brunt of the attack is not on the right of the defendants to be members of the municipal finance commission, but on the existence of such commission as a legal and constitutional entity. Lewis v. Newark, 74 N.J.Law, 308, 313, 65 A. 1039; Loughran v. Jersey City, 86 N.J.Law, 442, 92 A. 55. Not only this, but the prosecutors constitute the ci devant governing body of Asbury Park, whose performance of official duty is interfered with.

The claim of the present prosecutors is that the act of 1936 is unconstitutional, and therefore there is legally no such body as the Beach Commission of Asbury Park. We proceed therefore to examine that claim. A number of reasons are assigned, but there are only two basic points in the case, the determination of which will dispose of all matters at issue. The first is that the object of the act is not expressed in the title. The second is that the act violated that part of paragraph 11, § 7, article 4 of the State Constitution which reads: "The legislature shall not pass private, local or special laws in any of the following enumerated cases, that is to say: * * * Regulating the internal affairs of towns and counties; appointing local officers or commissions to regulate municipal affairs."

As to expression of object in the title, the title reads: "An Act concerning municipalities." The objection of course is, not that it is too narrow, but too broad, and gives no real indication of an intent to legislate for seaside cities owning their beach...