McCabe, Application of

Decision Date07 January 1980
Citation409 A.2d 1158,81 N.J. 462
PartiesIn the Matter of the Application of Vincent McCABE, Thomas Raymond Nicoletti, Warren Donohue and Richard E. Muller, Appellants.
CourtNew Jersey Supreme Court

John C. Heavey, Jr., Newark, for appellants (Carpenter, Bennett & Morrissey, Newark, attorneys; Morley, Cramer, Tansey, Haggerty & Fanning, Woodbridge, of counsel; and John C. Heavey and Laurence Reich, Newark, of counsel and on the brief).

Erminie L. Conley, Asst. Atty. Gen., for respondent Attorney General (John J. Degnan, Atty. Gen., attorney pro se).

Brian J. Molloy, Woodbridge, for intervenor New Jersey Automobile Dealers Association (Wilentz, Goldman & Spitzer, Woodbridge, attorneys).

The opinion of the court was delivered by

SULLIVAN, J.

This is an appeal filed as of right from the dismissal by the Appellate Division of an application brought under N.J.S.A. 1:7-1 Et seq., originally entitled "An act providing for the decreeing and making known that certain laws and joint resolutions have become inoperative and void."

Section 1 of the act reads:

If, at any time within one year after any law or joint resolution has been filed with the Secretary of State pursuant to sections 1:2-5, 1:2-6 or 1:2-7 of this Title, the Governor has reason to believe that any such law or joint resolution was not duly passed by both houses of Legislature, or approved by the Governor or otherwise made effective as law in the manner required by the Constitution, he may direct the Attorney-General to apply to the Appellate Division of the Superior Court, to have the law or joint resolution adjudged void. Thereupon the Attorney-General shall prepare, sign and prosecute the application. N.J.S.A. 1:7-1.

The act also provides that an application, such as is authorized by section 1:7-1 to be presented by the Attorney General, may be presented by any two or more citizens of the State. N.J.S.A. 1:7-4.

Under Section 2 it is provided that:

The court, on the application, shall inquire summarily into the circumstances and may, for that purpose, order witnesses to be subpoenaed and sworn and their depositions taken and such notice to be given of the taking of depositions and the hearing before the court, by publication or otherwise, as it deems just. N.J.S.A 1:7-2.

Section 3 provides:

After a full hearing the court may, if satisfied that the constitutional and statutory provisions relating to the enactment and approval of laws and joint resolutions have not been complied with, adjudge the law or joint resolution or any part thereof to be void. N.J.S.A. 1:7-3.

If the court adjudges the law or joint resolution or any part thereof to be void,

* * * the clerk of the court shall thereupon make a true copy of the judgment, certify the same under his hand and seal of the court and deliver the copy to the Governor or person administering the government, who shall issue his proclamation under the great seal of the State, setting forth such judgment. The proclamation shall be filed, published and printed with the laws as other proclamations are required to be filed, published and printed, and shall be judicially noticed and received in evidence in all courts of the State in the same manner and to the same extent that the law or joint resolution therein specified would have been if such judgment had not been made. No law or joint resolution, or part thereof, adjudged void shall, after the entry of such judgment as provided in this chapter, be judicially noticed or received in evidence in any of the courts of the State. N.J.S.A. 1:7-6.

The application herein, dated May 5, 1978, brought by more than two citizens of the State, asserted that Chapter 84, Laws of 1977, which supplemented the New Jersey Franchise Practices Act, N.J.S.A. 56:10-1 et seq., by adding sections 13, 14 and 15, 1 is special legislation not enacted in accordance with the notice requirements of N.J.Const., Art. IV, § VII, par. 8 and N.J.S.A. 1:6-1 et seq. In addition it was asserted that the legislation violated N.J.Const., Art. IV, § VII, par. 7 by adding provisions of a private and special character to a general law.

On June 30, 1978 the Attorney General of New Jersey moved to dismiss the application. The motion was based on the argument that proceedings pursuant to N.J.S.A. 1:7-1 Et seq. do not encompass issues which are solely substantive in nature, and that applications properly cognizable under that statute are limited to an attack only upon the machinery of enactment and not upon the constitutional validity of the law itself. In that connection the Attorney General conceded that L.1977, C. 84, had been enacted as general law, not as a private, special or local law and that the notice requirements for a private, special or local law were not followed.

Based on this concession the Attorney General argued that no issue existed concerning the "machinery of enactment" of the act and that the only question remaining is whether the legislation is general or special, a substantive issue which, standing alone, is not cognizable in a proceeding brought under N.J.S.A. 1:7-1 Et seq.

The Appellate Division, after considering the matter on briefs submitted by the parties, adopted the Attorney General's argument and entered an order dated July 26, 1978 dismissing the application. Notice of appeal to this Court has been filed as of right by applicants (appellants). R. 2:2-1(a)(1).

Appellants contend that where a challenge to the validity of legislation is made on the ground that it is a private, special or local law, this necessarily involves the issue whether, if so, it was enacted in accordance with the notice requirements set forth in N.J.Const., Art. IV, § VII, par. 8 and N.J.S.A. 1:6-1 Et seq. Accordingly, appellants submit that the machinery of enactment is involved and the provisions of N.J.S.A. 1:7-1 Et seq. thereby properly invoked.

We view the question differently. Appellants stress the notice requirements for the enactment of a private, special or local law set forth in N.J.Const., Art. IV, § VII, par. 8, and N.J.S.A. 1:6-1 Et seq. However, these requirements are not really pertinent to the question of the validity of L.1977, C. 84.

It is undisputed that the Franchise Practices Act is a general law, enacted as such, and applicable to all franchise relationships in this State pursuant to N.J.S.A. 56:10-4. The challenged legislation, L.1977, C. 84, supplements the Franchise Practices Act by adding three new sections to it. If, as appellants claim, this supplement is private or special legislation, it would be void under N.J.Const., Art. IV, § VII, par. 7, which provides that "(n)o general law shall embrace any provision of a private, special or local character." This would be so even if the constitutional and statutory notice requirements relied on by appellants had been fully satisfied.

The inquiry therefore is not concerned with the notice requirements for private or special legislation and the Attorney General's concession with regard thereto does not play any part in our consideration of the matter. The sole issue is whether the 1977 supplement is a private or special law. If so, it is void because it is violative of N.J.Const., Art. IV, § VII, par. 7.

Thus viewed, appellants' application does not involve the machinery of enactment of the 1977 supplement at all. The only question, substantive in nature, is whether it is private or special legislation, an issue which, standing alone, is not cognizable in a proceeding brought under N.J.S.A. 1:7-1 Et seq.

It is important to understand the nature of a proceeding authorized by N.J.S.A. 1:7-1 Et seq. The act confers original jurisdiction upon the Appellate Division, on proper application, to inquire summarily as to whether any law or joint resolution was not duly passed by both houses of the Legislature, or approved by the Governor or otherwise made effective as law in the manner required by the Constitution. The act provides for a full hearing, witnesses and discovery. However, it has been uniformly held that the subject matter of the inquiry involves only the mechanics of the enactment of the law and not the unconstitutional validity of the law itself. In re Application of Lamb, 67 N.J.Super. 39, 43, 169 A.2d 822 (App.Div.), aff'd 34 N.J. 448, 170 A.2d 34 (1961); In re Application of McGlynn, 58 N.J.Super. 1, 13, 155 A.2d 289 (App.Div.1959); In re An Act Concerning Alcoholic Beverages, 130 N.J.L. 123, 124, 31 A.2d 837 (Sup.Ct.1943); In re Borg, 123 N.J.L. 104, 106, 8 A.2d 221 (Sup.Ct.1939); see Meadowlands Regional Development Agency v. State, 63 N.J. 35, 40-41, 304 A.2d 545 n.1, appeal dismissed 414 U.S. 991, 94 S.Ct. 343, 38 L.Ed.2d 230 (1973).

Typical of proceedings filed under the act are In re Application of Fisher, 80 N.J.Super. 523, 194 A.2d 353 (App.Div.1963), aff'd 43 N.J. 368, 204 A.2d 841 (1964), claim that the bill passed by Senate was not the same as that passed by Assembly; In re Application of Lamb, supra, claim that Assembly was not properly convened when it acted on a bill; In re Chapter 147 of the Laws of 1946, 134 N.J.L. 529, 49 A.2d 255 (Sup.Ct.1946), claim that Senate and Assembly did not pass the same bill; In re Ross, 86 N.J.L. 387, 94 A. 304 (Sup.Ct.1914), claim that revenue measure originated in Senate rather than Assembly; In re Jaegle, 83 N.J.L. 313, 85 A. 214 (Sup.Ct.1912), claim that Governor signed bill lacking amendments which had been passed by Legislature.

The legislative reason for the limited scope of review provided in N.J.S.A. 1:7-1 Et seq. is apparent. Procedural or mechanical issues are the type of questions easily inquired into, are usually lacking in factual dispute and can be raised and decided by the Appellate Division within a short period of time following the enactment of a law.

Appellants cite In re Freygang, 46 N.J.Super. 14, 133 A.2d 672 (App.Div.), aff'd 25 N.J. 357, 136 A.2d 625 (1957), to support their contention...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT