Seymour v. City of Orange

• Decision Date: 04 March 1907
• Citation: 74 N.J.L. 549,65 A. 1033
• Parties: SEYMOUR v. CITY OF ORANGE.
• Court: New Jersey Supreme Court

65 A. 1033

74 N.J.L. 549

SEYMOUR

v. CITY OF ORANGE.

Court of Errors and Appeals of New Jersey.

March 4, 1907.

(Syllabus by the Court.)

Error to Supreme Court

Action by John Seymour against the city of Orange. Judgment for defendant, and plaintiff brings error. Affirmed.

Simeon H. Rollinson, for plaintiff in error. William A. Lord, for defendant in error.

SWAYZE, J. The plaintiff in error sued to recover salary as president of the common council of the city of Orange, or, failing that, the per diem compensation given to members of the council by the city charter. The case was tried before the chief justice without a jury, and he found in favor of the defendant.

The only right of the plaintiff as a member of the council, or as president thereof, arises out of the act of 1892. P. L. 1802, p. 119; Gen. St. p. 500, § 202. This act was held by the Supreme Court to be unconstitutional in Christie v. Bayonne, 64 N. J. Law, 191, 44 Atl. 887, upon the authority of our decision in De Hart v. Atlantic City, 63 N. J. Law, 223, 43 Atl. 742, and we are now confronted with the question whether Christie v. Bayonne was rightly decided.

There is a distinction between the statute involved in the De Hart Case and that now before us. The former required the city government to act within three months from the date of the passage of the act. The latter requires that the act be submitted to the voters at the next municipal election after its approval. In similar cases we have held that the words "the next municipal election" ought to be construed to mean the next election after the municipality comes into the class affected by the legislation. Ross v. Freeholders of Essex, 69 N. J. Law, 291, 55 Atl. 310; Fagan v. Payen (N. J. Err. & App.) 59 Atl. 568. If the provision for submission to the voters stood alone, this case would be governed by the decisions last cited. But the act of 1892 required a resolution of the common council of the city, before the act can be submitted to the people. Such a resolution can only be adopted in an existing city. If the effect of requiring such a resolution is to prevent the application of the act to cities which would be subject thereto but for the fact that their existence may have begun after the passage of the act, the act must be regarded as special, and, since it clearly regulates internal affairs of cities, it would in that event be unconstitutional. The rule laid down in De Hart v. Atlantic City was expressly approved in Ross v. Freeholders of Essex, and the only question was whether it was applicable to the case in hand. In Bennett v. Trenton, 55 N. J. Law, 72, 25 Atl. 113, it was held that an act, applicable only to cities having certain characteristics at a particular time, was bad, because it did not apply to cities which might have those characteristics thereafter. Subsequently, in Cooper v. Springer, 65 N. J. Law, 594, 597, 48 Atl. 605, we explained this ruling as one that was limited to instances where the class would in the future, in the ordinary and regular course of events, be increased and added to. Cases where the class is added to by the natural growth of population are clearly within the rule, but not because there is any special peculiarity in a classification by population, but because such increase can be readily forseen in the present social conditions, and the failure of the Legislature to provide for it evinces a design to limit the application of the statute.

That the rule is not limited to cases where the increase in the class is due to an increase of population is shown by our decisions. In the early case of Richards v. Hammer, 42 N. J. Law, 435, the Supreme Court declared an act to be unconstitutional because its operation was restricted to cities where a board of assessment and revision of taxes existed at the time of the passage of the...