State v. Borough of Belmar

• Decision Date: 08 November 1897
• Citation: 38 A. 756,61 N.J.L. 20
• Parties: STATE (KENNEDY, Prosecutor) v. BOROUGH OF BELMAR et al.
• Court: New Jersey Supreme Court

38 A. 756

61 N.J.L. 20

STATE (KENNEDY, Prosecutor)

v. BOROUGH OF BELMAR et al.

Supreme Court of New Jersey.

Nov. 8, 1897.

(Syllabus by the Court.)

Certiorari by the state, on the prosecution of Clarence Kennedy, against the borough of Belmar and others, to review a resolution of defendant borough. Certiorari dismissed.

Argued November term, 1890, before DEPUE, GUMMERE, and MAGIE, JJ.

E. A. Armstrong, for prosecutor.

Halstead H. Wainwright, for defendant.

MAGIE, J. Prosecutor seeks to set aside a resolution of the borough council of the borough of Belmar submitting to an election of its voters the acceptance or rejection of an act entitled "A further supplement to an act entitled 'An act for the formation of borough governments,' approved April 5, 1878," which supplement was approved March 14, 1893 (1 Gen. St. p. 204, pl. 152). By the terms of that supplement, boroughs organized under the borough act of 1878 are given authority to construct sewers; but it is expressly provided that the supplement shall not go into effect, or be binding on any such borough, unless it shall have been submitted to the votes of the voters of the borough, and accepted by the votes of a majority at a special election held for that purpose in the manner provided in section 16.

Prosecutor first contends that this legislation is within the prohibitions of the constitution, because the legislative power is thereby delegated to the voters of a municipality, and because it provides a rule only for such boroughs as accept its terms, and so lacks the required generality of application. But these objections cannot avail prosecutor, for the questions they raise have been disposed of in this state, so that they cannot be reopened. Warner v. Hoagland, 51 N. J. Law, 62, 16 Atl. 166; In re Cleveland, 51 N. J. Law, 319, 17 Atl. 772; Id., 52 N. J. Law, 188, 19 Atl. 17; Noonan v. Hudson Co., 52 N. J. Law, 398, 20 Atl. 255.

The next contention is that the provisions of the supplement in question do not apply to the borough of Belmar, because it was not organized under the borough act of 1878. It appears in the statement of the case that Belmar was originally incorporated under the provisions of the act entitled "An act for the formation and government of boroughs," approved March 12, 1890 (1 Gen. St. p. 225). That act has been declared to be in opposition to constitutional requirements and void. Attorney General v. Borough of Anglesea, 58 N. J. Law, 372, 33 Atl. 971. Defendant's claim that it is properly characterized as a borough "organized" under the borough act of 1878 is put solely upon the provisions of "An act relating to boroughs and borough commissions," approved April 21, 1896 (Laws 1896, p. 339). By that act the legislature repealed the act of March 12, 1890, above cited, the "Act for the formation and government of boroughs," approved April 2, 1891 (1 Gen. St. p. 236), the "Act for the formation of borough governments in seaside resorts," approved March 29, 1878 (1 Gen. St. p. 254), and the "Act for the formation of borough commissions," approved March 7, 1882 (1 Gen. St. p. 286), and all supplements or amendments to said acts, and further enacted that every borough or borough commission established and formed under them, and now a de facto corporation, exercising corporate powers, should thereby be created a borough by its present corporate name, and be a body corporate, in fact and in law, and be governed by the borough act of 1878, and the supplements and amendments thereto, and other general laws relating to boroughs, and that each such borough should have the powers conferred, and be subject to the duties imposed, by said acts last mentioned. Passing for the present the question of the right of the legislature to adopt such legislation, and assuming that the borough of Belmar became endowed thereby with the corporate powers which were conferred by the borough acts of 1878 upon the boroughs incorporated under its provisions, let us inquire whether this borough may be properly said to have been organized under that act. Corporate life exists for the performance of certain functions prescribed by legislation, by the means and in the mode likewise thus prescribed. Like living organisms, the functions of a corporate body may be few or many, simple or complex, and be performed by means or in modes correspondingly varied. But the rule which fixes such functions and the means and modes of their performance is the rule of the organization. So legislation which prescribes the functions of municipal corporations, and the means and modes of their performance, may be said to be the law which organizes such corporations. Therefore, in my judgment, if the borough of Belmar, by the act of April 21, 1896, ubi supra, has been endowed with the powers conferred upon boroughs by the borough act of 1878, and that act prescribes the means and modes of its exercising its municipal functions, it may well be characterized as a borough organized under this act, and the supplement of March 14, 1893, ubi supra, does apply to it.

But prosecutor attacks the validity of the act of April 21, 1896, and contends that it is without legislative force, because, he claims, it is in opposition to provisions contained in paragraph 11 of section 7 of article 4 of the constitution.

It is first contended that it is violative of the last clause of that paragraph, which forbids legislation providing that any existing law shall be made or deemed a part of the act, or shall enact that any existing law shall be applicable, except by inserting it in such act. If this contention is correct, it is obvious that the plain purpose of this act could not have been effected except by setting out in it the whole borough act of 1878, with all its amendments and supplements, and all the general borough laws on our statute books. I...