Ross v. Bd. of Chosen Freeholders of County of Essex

• Decision Date: 15 June 1903
• Citation: 55 A. 310,69 N.J.L. 291
• Parties: ROSS v. BOARD OF CHOSEN FREEHOLDERS OF COUNTY OF ESSEX et al.
• Court: New Jersey Supreme Court

55 A. 310

69 N.J.L. 291

ROSS

v. BOARD OF CHOSEN FREEHOLDERS OF COUNTY OF ESSEX et al.

Court of Errors and Appeals of New Jersey.

June 15, 1903.

(Syllabus by the Court.)

Error to Supreme Court.

Action by James P. Ross against the board of chosen freeholders of the county of Essex and others. Judgment for defendants, and plaintiff brings error. Affirmed.

Henry Young, for plaintiff in error.

Joseph L. Munn, for defendant in error, board of chosen freeholders.

Charles L. Corbin, for defendant in error Essex county park commission.

DIXON, J. This writ of error brings under review the judgment of the Supreme Court entered on the opinion of Mr. Justice Collins, reported in 53 Atl. 1042, to which reference is made for the facts of the case.

The only questions discussed in argument here relate to the constitutionality of "An act to establish public parks in certain counties in this state and to regulate the same," approved March 5, 1895 (Gen. St. p. 2618).

One of the objections urged against the act is that, because it is limited to counties having a population exceeding 200.000, it is a special regulation of the internal affairs of counties, and thus violates article 4, § 7, par. 11, of the Constitution. But we think the Legislature may divide counties on the basis of their population for the purpose of enabling the more populous to lay out public parks. Densely settled communities have the greater need for these open spaces, to which the inhabitants may resort for refreshment, and hence there is a rational connection between the basis of classification and the purpose of the enactment. As was said in Paul v. Gloucester County, 50 N. J. Law, 585, 592, 15 Atl. 272, 1 L. R. A. 86: "Whether the basis of classification is wise or judicious, or whether it will operate as fairly as some other basis that might be adopted, is a question for the Legislature, and not for the courts. The extreme limit of our inquiry in this direction is, does population bear any reasonable relation to the subject to which the Legislature has applied it? Is it germane to the law?" As this act forms and deals with a legitimate class, it is in this feature general.

Another objection presented is that the act violates the same paragraph of the Constitution, because, according to the words of the statute, it cannot take effect in any county

■ unless the voters of the county accept it at the next election held after its passage, thus practically confining it to counties then having the designated population. If this be the real meaning of the statute, it must be adjudged unconstitutional, under the rule laid down in De Hart v. Atlantic City, 63 N. J. Law, 233, 43 Atl. 742. But courts never approve an interpretation of a statute which will defeat its main purpose, if there be any reasonable construction which will uphold it. Atlantic City Waterworks Co. v. Consumers' Water Co., 44 N. J. Eq. 427, 15 Atl. 581. The legislative design fairly expressed by this statute is that to the voters of every county having the required population should be tendered the right of accepting the benefits of the law, and in order to insure the enjoyment of this right the act imposes certain duties upon the county officers, and points out the time for their performance. But there certainly is no clear declaration, and therefore it should not be believed, that the Legislature considered exact compliance with the method provided for securing the right as more important than the right itself. Our construction of the statute is that the provision for submitting the matter at the "next election" is directory; that, in counties having the proper population when the act was passed, the local officers are directed to perform their duties with reference to the first election thereafter, and in counties subsequently acquiring sufficient population those duties will relate to the next election after such acquisition, but that in both cases the duties enjoined continue until performance. They cannot be discharged by neglect. Albright v. Sussex Lake Commissioners (N. J. Sup.) 53 Atl. 612, 616.

A further objection to the validity of the act is that, by requiring the appointment of the park commissioners to be made by a justice of the Supreme Court, it violates article 3 of the Constitution, which declares that "the powers of the government shall be divided into three distinct departments—the legislative, executive and judicial; and no person or persons belonging to, or constituting one of these departments, shall exercise any of the powers properly belonging to either, of the others, except as herein expressly provided." This article contains three clauses: A distributive clause, "the powers of the government shall be divided into three distinct departments—the legislative, executive and judicial"; a prohibitive clause, "and no person or persons belonging to, or constituting one of these departments, shall exercise any of the powers properly belonging to either of the others"; and an excepting clause, "except as herein expressly provided." The distributive clause cannot be read as the declaration of an abstract proposition, that the powers of government are naturally divided into legislative, executive, and judicial departments, for the words indicate, not the powers of government generally, but "the powers of the government"— that is, the government then being formed, and a division not already existing, but one about to be made, "the powers of the government shall be divided." Hence we must seek for the scope of the division primarily in the Constitution itself. The intended division is there plainly disclosed. By article 4, § 1, par. 1, "the legislative power is vested in a Seuate and General Assembly"; by article 5, § 1, "the executive power is vested in a Governor"; and by article 6, § 1, "the judicial power is vested in" the courts. The division contemplated by article 3 relates, therefore, only to such powers of the government as are to be exercised by the Senate and General Assembly, or by the Governor, or by the courts. But as was said in Paul v. Gloucester Comity, 50 N. J. Law, 611, 15 Atl. 284, 1 L. R. A. 86, "there is a multitude of governmental duties which have never been and cannot possibly be performed, either by the Legislature, or by the Governor, and which are certainly not prescribed by the Constitution to the judiciary." Clearly, the powers appropriate for the discharge of these duties must lie outside of the division intended by this clause of the Constitution. Among the powers thus excluded must be the power of appointing local officers, for it cannot be believed that this power, requiring for its proper exercise such diversity of knowledge respecting local needs, was constitutionally devolved upon either of the departments designated. Nothing in the history of this or of the mother country would suggest such a course. The prohibitive clause of this article calls for some consideration of "the powers properly belonging to" the several departments into which the powers of our government are divided, for the purpose of determining whether they include the power to appoint officers for the management of local concerns. Here it should be noted that the force of this clause is not to confine the legislature to powers which are legislative, the Governor to powers which are executive, and the courts to powers which are judicial, but merely to forbid each department to encroach upon the powers properly belonging to another. The powers properly belonging to each of these departments, and therefore forbidden to the others, are those assigned under the general terms "legislative power," "executive power," and "judicial power," and also those specifically delegated by the Constitution to the Senate and General Assembly, or to the Governor or to the courts. But since in these specific delegations of power the appointment of local officers, as distinct from authority to provide for their appointment, is not mentioned, our consideration may be confined to the general terms employed.

The question presented is, can the power of appointing to office be said, in our government, to belong properly to the Legislature, or to the Governor, or to the...