Legg v. Passaic County

• Decision Date: 17 February 1939
• Docket Number: No. 401.,401.
• Citation: 122 N.J.L. 100,4 A.2d 300
• Parties: LEGG v. PASSAIC COUNTY.
• Court: New Jersey Supreme Court

4 A.2d 300

122 N.J.L. 100

LEGG

v. PASSAIC COUNTY.

No. 401.

Supreme Court of New Jersey.

Feb. 17, 1939.

Syllabus by the Court.

1. Chapter 229 of the Laws of 1885 (P. L. p. 299), being an amendment to the supplement to "An Act concerning county physicians" (2 C.S.1910, p. 1705, § 6, recast in R.

S. 40:21-29) restricting the right of a coroner to fees for viewing dead bodies, held a constitutional exercise of legislative power.

2. As a general rule, an inferior court should not undertake to pass in the first instance upon the constitutionality of a statute, unless clearly and indubitably in contravention of the constitution.

Appeal from District Court, Passaic County.

Suit by R. Charles D. Legg against Passaic County to recover a claim for "viewing" dead bodies. From a judgment in favor of the plaintiff, the defendant appeals.

Judgment reversed and judgment entered for defendant.

Argued January term, 1939, before TRENCHARD, PARKER, and PERSKIE, JJ.

Harry L. Schoen, of Paterson, for appellant.

Peter Cohn, of Paterson, for respondent.

PARKER, Justice.

Plaintiff, a coroner of Passaic County, presented a claim against the county for "viewing" some thirteen dead bodies. R.S. 22:4-6. Payment being refused, this suit was brought: and the defence was, in substance, that in Passaic County there was a county physician, pursuant to the act of 1876 (2 C.S. 1910, p. 1704, R.S. 40:21-23 et seq.): that by the act of 1878, amended in 1885 (C.S. 1910, p. 1705, § 6), in counties where there is a county physician, the coroner is not entitled to any fee for viewing a body except by written order of the county physician. The section contains a proviso, but it is not claimed that such proviso is applicable. The district court entered a judgment for plaintiff, and on reargument reiterated that judgment in a written opinion which held that the county physician act was invalid as a defence because it impaired the powers of a coroner as derived from the English law and recognized by our State constitutions of 1776 and 1844.

We consider that the judgment in favor of the respondent was erroneous, and for several reasons. In the first place, it is to be observed that the question involved is not the broad question whether the "Act respecting county physicians" of 1876 (C.S. 1910, p. 1704) is unconstitutional in toto, but the very narrow question whether the supplement of 1878 (P.L. p. 321) as amended in 1885 (P.L. p. 299) is in violation of the constitutional rights of a coroner, whatever they may be, in a county where there is a county physician. The revision of this statute in R.S. 40:21-29 abbreviates the language of the act of 1888 without any material alteration, and is reproduced here for convenience. It reads thus: "When there is a county physician in office, no coroner in the county shall be entitled to receive any fees for viewing the body of any deceased person, unless such view shall have been made upon the written order of the county physician, and the written order shall be attached to the bill of the coroner for such service before being audited or paid, but where the county physician's presence cannot be obtained within six hours after written notice given to him by the coroner of the discovery of the death of any such person, the coroner may proceed. In such cases the coroner shall make an affidavit setting forth the giving of notice as above provided. Such notice shall be served personally upon the county physician or left at his dwelling house or usual place of abode."

It will be observed that this statute goes no farther than to say that the coroner shall not be entitled to fees for viewing a body except under certain conditions laid down in the act and which do not obtain in this case; and the right to fees is all with which we are now concerned. It seems clear to us that, whatever the constitutional status of a coroner, and whatever his constitutional right to "view" dead bodies (of which more presently), he has no constitutional right to any specified fee, or indeed any fee at all. Public officers frequently serve without pay; the commissioners of county parks are a familiar instance. For considerably over a century the powers of a coroner have not been absolutely exclusive under our statutes, for as early as the year 1801 (Revision of 1821, page 511; Elmer's Digest, page 93) the legislature provided for cases in which coroners might not be available by conferring the same powers and jurisdiction on a Justice of the Peace.

In the second place, while it may be unnecessary at the present juncture, in view of what has already been said, we think it proper to point out that one of the fundamental policies of our jurisprudence is not to declare unconstitutional a statute which has been in force without any substantial challenge for many years unless its unconstitutionality is obvious. State v. Kelsey, 44 N.J.L. 1; Engeman v. State, 54 N.J.L. 247, 252, 23 A. 676; Wintermute v. Ellenstein, 117 N.J.L. 274, 279, 187 A. 764. The principle was distinctly stated in State v. Wrightson, 56 N.J.L. 126, at page 206, 28 A. 56, at page 64, 22 L.R.A. 548, where the court said: "Contemporaneous construction and long usage, and especially the practical interpretation by the various departments of the government, are entitled to great weight in the construction of constitutional provisions." In that case the court set aside the statutory scheme of electing members of the assembly by districts which had prevailed for many years, but only on the ground that the language of the constitution was perfectly clear in its language and could not possibly admit of any other interpretation, but that each member of the legislature from any county should be elected by a plurality ballot of all the voters of that county.

The "Act respecting county physicians" (C.S.1910, p. 1704, R.S. 40:21-23 etc.) dates from 1876, P.L.1876, p. 379; and we are not aware of any decision, nor has any been pointed out in the brief for the respondent, which questions in any way the constitutionality of ...