McDonald v. Bd. of Chosen Freeholders of Hudson County

• Decision Date: 19 May 1924
• Citation: 125 A. 379
• Parties: McDONALD v. BOARD OF CHOSEN FREEHOLDERS OF HUDSON COUNTY.
• Court: New Jersey Supreme Court

125 A. 379

McDONALD

v. BOARD OF CHOSEN FREEHOLDERS OF HUDSON COUNTY.

Court of Errors and Appeals of New Jersey.

May 19, 1924.

Minturn, Campbell, Gardner, Van Buskirk, and Clark, JJ., dissenting.

Appeal from Supreme Court.

Application by Thomas A. McDonald for writ of mandamus to be directed against the Board of Chosen Freeholders of the County of Hudson. Judgment (125 Atl. 378) for relator, and defendant appeals. Affirmed.

John J. Fallon, of Hoboken, for appellant.

Robert H. McCarter and Arthur F. Egner, both of Newark, for respondent.

GUMMERE, C. J. The Legislature of the state on the 28th day of February, 1923, passed an act entitled, "A further supplement to an act entitled 'An act entitled "An act to regulate elections (Revision of 1898)," approved April fourth, one thousand eight hundred and ninety-eight.'" Chapter 9 of the Laws of 1923. By this enactment, the office of superintendent of elections in counties of the first class in this state was established and the duties of the office were prescribed. It was further provided that the said office should be filled by some suitable person to be appointed by the Senate and General Assembly of the state in joint meeting assembled; that the term of such office should be for five years; that the incumbent thereof should receive a salary of $5,000 per annum, to be paid by the county treasurer; that such superintendent should have authority to appoint a chief deputy and other subordinate officers and fix the salaries of his appointees; and that the salaries of the superintendent and of his employees, certified to and approved under his hand, should be paid semimonthly by the county treasurer of the county in which such officer functioned. The Legislature, under the authority of this statute, on the 23d day of March, 1923, held a joint meeting, and then and there appointed the respondent, Thomas A. McDonald, to the office of superintendent of elections for the county of Hudson, a county of the first class; and he, a few days later, appointed a chief deputy and such other subordinate officers as he deemed necessary for the purpose of insuring honest elections in this county, that being the primary object sought to be accomplished by the statute. He at the same time fixed the salaries of his appointees and certified them—as well as his own—to the county treasurer for payment; payment being refused, for the reason that there were no moneys in the county treasury applicable thereto. McDonald then applied to the Supreme Court for a mandamus to compel the board of freeholders of the county to raise a special emergency fund for that purpose. An alternative writ was thereafter allowed by the Supreme Court, and upon the hearing a peremptory writ was ordered. McDonald v. Board of Freeholders of Hudson, 121 Atl. 297. Upon a review in this court the judgment of the Supreme Court granting the peremptory writ was reversed. 122 Atl. 801. The judgment of reversal was entered at the November term, 1923, of this court, and some 10 days later McDonald instituted the present proceeding, by applying again to the Supreme Court, praying the allowance of an alternative writ, directed to the board of freeholders, requiring that body to make provision to pay his salary, and also the salaries of those appointed by him, for the fiscal year beginning January 1, 1923, and to include the same in the budget for the fiscal year beginning January 1, 1924; and, further, to include in said budget for the fiscal year beginning January 1, 1924, an appropriation, to pay the salaries of McDonald and his appointees for that fiscal year, i. e., the year beginning January 1, 1924. An alternative writ was allowed, and the Supreme Court, upon a hearing of the matters involved, granted a peremptory writ, requiring the board of freeholders to make provision in their budget for the year 1924 for the payment of the salaries of McDonald and his appointees, both for the fiscal year beginning January 1, 1923, and also for that beginning January 1, 1924. The present appeal is taken by the board of freeholders from the judgment of the Supreme Court awarding this second peremptory writ.

The first ground upon which the appellant seeks to have the judgment of the Supreme Court reversed is that there is nothing in the state of the case to show that there was not in the office of the county treasurer at the time of the allowance of the peremptory writ sufficient moneys to pay the salaries of the respondent and his several appointees. The answer to this contention is twofold: First, that the former adjudication settled the question of the lack of funds to meet the charges upon the county treasury, so far as the salaries for the year 1923 are concerned, and the "budget" for the year 1924 had not yet been made up at the time of the allowance of the alternative writ. Second, the return to that writ contains no averment that the county has on hand moneys which may be legally appropriated to the payment of these salaries; and, In the absence of such averment, the legal presumption is that the contrary is the fact.

The second ground of appeal is rested upon the assertion that the writ is misdirected; that it should have been directed to the county treasurer instead of to the board of freeholders. We consider this contention to be without merit, and for the reason stated in the opinion of the Supreme Court in dealing with it.

Next, it is argued that the act of February 28, 1923, under which the respondent was appointed superintendent of elections, is unconstitutional: First, because its object is not expressed in its title; and, second, because it is special legislation regulating the internal affairs of counties.

The title of the act has already been quoted. The argument is that it expressed no object for the reason that at the time of its enactment the revision of our election law of 1898 had been repealed by a subsequent revision enacted in 1920, and that therefore there was nothing in existence to be supplemented. But this is not an accurate statement of the situation. The Legislature in 1918 had passed a supplement to the General Election Law as revised in 1898, and that supplement created the duties now required to be performed by superintendents of elections and imposed the performance of those duties upon the prosecutors of the pleas of the several counties which came within the purview of the statute, and made provision for their compensation, as well as for the compensation of their appointees. This supplement of 1918, when enacted, became an integral part of the revision of the election law of 1898. Central R. R. Co. v. State Board of Assessors, 75 N. J. Law, 771, 69 Atl. 239. When the revision of 1920 was enacted, it did not repeal the whole of the revision of 1898 as it then existed, but excepted certain portions thereof from the repealing clause, and one of the excepted portions was that part of the existing statute which was infused into it by the supplement of 1918. That the Legislature may repeal a portion of a statute without destroying the whole of it goes without saying, and the result of the partial repealer of 1920 was to leave the unrepealed portions of the revision of 1898 still in force; that is to say, they still remained a part of our election laws, notwithstanding the enactment of the revision of 1920. This being so, the title of the act of 1923 properly expressed the object of the enactment; i. e., a supplement to the revision of 1898 as it then existed.

The Legislature, however, being apparently doubtful as to the validity of this title, passed a later statute in the same year, by which it was amended so as to more fully express the object of chapter 9. The amendment, however, was entirely unnecessary, as the original title conformed to the constitutional requirement; and we are, consequently, not presently interested in the contention of counsel for the appellant that it is beyond the power of the Legislature to render valid an unconstitutional statute merely by amending the title thereof.

As to the second contention, that chapter 9 of the Laws of 1923 is unconstitutional because it is a special law, regulating the internal affairs of the counties of Hudson and Essex alone, leaving the remaining counties of. the state unaffected thereby. The answer to this contention is contained in the opinion of the Supreme Court in the original litigation between these parties relating to this subject-matter. It is there pointed out that the purpose of the statute is to provide for honest elections in counties of the first class; that it is a...