State v. Bd. of Chosen Freeholders of Hudson County

• Decision Date: 21 June 1890
• Citation: 52 N.J.L. 398,20 A. 255
• Parties: STATE (NOONAN et al., Prosecutors) v. BOARD OF CHOSEN FREEHOLDERS OF HUDSON COUNTY.
• Court: New Jersey Supreme Court

20 A. 255

52 N.J.L. 398

STATE (NOONAN et al., Prosecutors)

v. BOARD OF CHOSEN FREEHOLDERS OF HUDSON COUNTY.

Court of Errors and Appeals of New Jersey.

June 21, 1890.

Affirming 18 Atl. Rep. 117.

Error to supreme court.

Thomas F. Noonan, Jr., for plaintiff in error. John A. McGrath, for defendant in error.

McGILL, Ch. The object of this suit is to test the constitutionality of the act of the legislature entitled "An act to authorize the board of chosen freeholders of any of the several counties of this state to lay out, open, construct, improve, and maintain a public road therein," approved April 7, 1888, (P. L. 397.) The act provides that when any board of chosen freeholders of any of the several counties of this state shall deem it for the best interests of such county to lay out, open, construct, improve, and maintain a public road extending through such county in any direction, it may, by resolution, submit to the electors of such county the question whether or not such public road shall be laid out, opened, constructed, improved, and maintained as provided in the act, and that, if a majority of the electors voting shall favor such road, then the board of chosen freeholders shall be invested with all the rights and powers necessary and expedient to lay out, etc., the road but if such majority of electors shall vote against such road, then nothing in the act is to apply to or be effective in the county. The act then prescribes the manner of conducting the election, and confers the powers necessary to build and pay for the road, specifying the methods by which, and the conditions and limitations under which, they are to be exercised. It is contended—First, that the reference of the question whether the road shall be built to the board of freeholders and the electors of the county is a delegation of legislative power, which is in conflict with the requirement of the constitution that the legislative power of the state shall be vested in the senate and general assembly, (article 4, § 1, par. 1;) second, that the act is within the constitutional inhibition against private, special, or local laws for the laying out, opening, altering, and working of roads or highways, (article 4, § 7, par. 11;) and, third, that it violates that further provision of the constitution which forbids the passage of private, local, or special laws regulating the internal affairs of counties, (Id.)

A simple examination of the legislation in question discloses that the law itself is a complete and efficient piece of machinery, replete with all powers necessary to its effective operation. The feature of it which gives rise to the first objection is that, instead of putting itself in action, it prescribes a method by which it may be brought into action in any of the localities to which it applies, by the exercise of another judgment than that of the law-making power. Wisdom to discern the real interests of the governed, it is urged, is an attribute of legislation, as essential to its completion as the power to command or prohibit. The impracticability of the creation of laws by the law-making power to meet all phases of action, however trifling, numerous, and local, has necessitated not only the delegation of police powers to municipalities, but also the framing of general laws, which, so far as they apply to individual cases, are to be called into action by another wisdom than that of the law-maker. In other words the law-making power approves the general scheme of the law,...