State v. City of Elizabeth

• Decision Date: 20 September 1901
• Citation: 49 A. 1106,66 N.J.L. 484
• Parties: STATE (GILHOOLY et al. Prosecutors) v. CITY OF ELIZABETH. STATE (HOPPER et al., Prosecutors) v. CITY OF PATERSON.
• Court: New Jersey Supreme Court

49 A. 1106

66 N.J.L. 484

STATE (GILHOOLY et al. Prosecutors)

v. CITY OF ELIZABETH.

STATE (HOPPER et al., Prosecutors)

v. CITY OF PATERSON.

Supreme Court of New Jersey.

Sept. 20, 1901.

(Syllabus by the Court.)

Certiorari by the state, on the prosecution of P. H. Gllhooly and others, against the city of Elizabeth, and by John Hopper and others against the city of Paterson. Judgment set aside.

Argued June term, 1901, before VAN SYCKEL, FORT, and GARRETSON, JJ.

Lindabury, Depue & Faulks, for prosecutors.

John W. Griggs, Eugene Emley, Wm. I. Lewis, and Frank Bergen, for defendants.

VAN SYOKEL, J. The only question involved in these cases which it is necessary to discuss is whether an act approved March 21, 1901 (P. L. 1901, p. 208), is constitutional. The first section of the act reads as follows: "Upon the petition of not less than one hundred voters of any city, the governor may, in his discretion, appoint a commission of three residents and voters of such city, not more than two of whom shall belong to the same political party, to divide the city for which they are appointed into wards, each ward to contain as nearly as practicable an equal number of inhabitants and consist of convenient and contiguous territory in a compact form; such division not to take place oftener than once in five years." The validity of this legislation is assailed on the ground that it violates the clause of the state constitution which vests legislative power in a senate and general assembly, and also the clause which divides the powers of government into three distinctive departments, the legislative, executive, and judicial, and forbids that any person belonging to or constituting one of these departments shall exercise any of the powers properly belonging to either of the others. We deem it to be the established rule that the districting of a city into wards is a legislative act, which cannot be delegated. In re Ridgefield Park, 54 N. J. Law, 288, 23 Atl. 674; State v. Simons, 32 Minn. 540, 21 N. W. 750. That this law commits to the governor the determination of an important question of public policy controlling the local government of cities does not admit of controversy, as he is given an absolute and unlimited discretion, controlled by no rule, to be exercised in accordance with no facts to be ascertained by him, and upon no principle or terms of expediency declared by the legislature. The legislature, established under the constitution, has the exclusive power to enact the law. The rule is well stated in Dowling v. Insurance Co., 92 Wis. 63-74, 65 N. W. 738-741, 31 L. R. A. 112-115, in this language: "The result of all the cases on this subject is that a law must be complete in all its terms and provisions when it leaves the legislative branch of the government, and nothing must be left to the judgment of the electors, or other appointees, or delegates of the legislature, so that in form and substance it is a law in all its details in prcesenti, but which may be left to take effect in future, if necessary, upon the ascertainment of any prescribed fact or event." The supreme court of Penn sylvania, in Moers v. City of Reading, 21 Pa. 202, enunciated a like rule in these words: "The legislature cannot delegate its power to make a law, but it can make a law to delegate a power to determine some fact or state of things upon which the law makes or intends to make its own action depend." The case of Field v. Clark, 143 U. S. 649, 12 Sup. Ct. 495, 36 L. Ed. 294, in my judgment, carries this right of the legislature to delegate a function connected with the operation of the law to its extreme...