State v. City of Elizabeth

• Decision Date: 06 January 1894
• Citation: 28 A. 51,56 N.J.l. 71
• Parties: STATE (ALEXANDER et al., Prosecutors) v. CITY OF ELIZABETH et al.
• Court: New Jersey Supreme Court

28 A. 51

56 N.J.l. 71

STATE (ALEXANDER et al., Prosecutors)

v. CITY OF ELIZABETH et al.

Supreme Court of New Jersey.

Jan. 6, 1894.

(Syllabus by the Court.)

Certiorari on the relation of James H. Alexander, Robert M. Moore, and Lebbeus B. Miller to review certain resolutions of the city council of the city of Elizabeth purporting to grant a license to the New Jersey Jockey Club to maintain a race course in said city. Resolutions set aside, and declared null and void.

Argued June term, 1893, before DEPUE, LIPPINCOTT, and ABBETT, JJ.

R. V. Lindabury, John R. Emery, and Joseph Cross, for prosecutors.

Allan L. McDermott, Samuel Kalisch, Chauncey H. Beasley, and James A. Connelly, for defendants.

LIPPINCOTT, J. This writ brings into this court for review and adjudication certain resolutions of the city council of the city of Elizabeth, passed at a meeting of the city council on April 1, 1893, purporting to grant a license, or to be a license, to or for the New Jersey Jockey Club, to maintain a race course in said city, for running, racing, trotting, or pacing horses, mares, or geldings, for a purse, plate, stake, or other thing. On that day the New Jersey Jockey Club presented a petition to the city council of the city of Elizabeth requesting that a license be granted to them under and by virtue of the provisions of chapter 16, Laws 1893, to maintain a race course for racing, running, trotting, or pacing of horses, mares, or geldings, for a purse, plate, or other thing to be run, paced, or trotted for by such horses, mares, or geldings, on their grounds, in the city of Elizabeth, as named in said act. Upon the presentation of this petition, the city council adopted the following resolution: "Resolved, that the New Jersey Jockey Club is hereby licensed for a period of five years to maintain and use a race course in this city for the running, racing, trotting, or pacing of horses, mares, or geldings, for a purse, plate, stake, or other thing; the said race course being the one used by the New Jersey Jockey Club for such running, trotting, or pacing prior to the first day of January, eighteen hundred and ninety-three." In addition to this resolution there were some other resolutions adopted at such meeting, imposing conditions as to the management of such race course, and requiring the payment to the city of Elizabeth of the sum of $5,000 for the privilege granted under and by virtue of the license, and also limiting the time in each year of racing on such race course to a period of 30 days in the fall and 30 days in the spring of each year during the continuance of the license. The adoption by the city council of those resolutions is attempted to be justified by the defendants under the provisions of an act of the legislature of this state, entitled "An act concerning the maintaining of race courses in this state, and to provide for the licensing and regulating of the same," passed February 27, 1893, (P. L. 1893, p. 28.) By the first section of this act it is provided "that the board of chosen freeholders of any county in this state, or the board of aldermen, common council, township committee, or other body having general charge of the affairs of any city, township or municipal division of this state, in which there is situated and maintained a race course for the racing, running, trotting or pacing of horses, mares or geldings, for a purse, plate, or other thing to be run, paced or trotted for by such horses, mares, or geldings, shall have power and is hereby authorized to license the owners of such race course to maintain and use the same for any running, pacing or trotting of any horses, mares or geldings, for any purse or stake, plate or other thing; such license shall be for a period of not more than five years, and no license shall be granted for the maintenance or use of a race course within the corporate limits of any city having a population of more than one hundred thousand people according to the census last taken." By the third section it is provided "that it shall be unlawful for any person or incorporated body or association to maintain or use a race course in this state, for the racing, running, trotting or pacing of horses, mares or geldings, for a purse, plate or other thing, or to permit such running, racing, trotting or pacing upon any grounds owned or leased or controlled by such person or incorporated body or association, unless license for that purpose shall be granted as in this act provided. Any license granted under this act shall become void upon any breach of any condition upon which it shall be granted." By the fourth section it is provided "that it shall not be lawful for any person or incorporated body or association to maintain or use in this state, for the running, trotting or pacing of horses, mares or geldings, for a purse, plate or other thing to be run, paced or trotted for by such horses, mares or geldings, any race course which was not used for such running, trotting or pacing, prior to the first day of January, one thousand eight hundred and ninety-three, unless such person or incorporated body or association shall first file with the secretary of state a certified copy of a resolution adopted by three-fourths of the members of the board of chosen freeholders of the county in which such race course is proposed to be maintained, which resolution shall declare that the maintaining of such race course is a public necessity."

The question whether this act is one which regulates the internal affairs of towns and counties has been extensively discussed in the arguments and briefs of counsel in this cause, and it has been seriously contended by the defendants that this act is not within the meaning of the language of paragraph 11, § 7, art. 4, of the constitution of this state, referring to laws "regulating internal affairs of towns and counties."

It will be perceived by the first section of this act power to license is conferred upon the boards of chosen freeholders, or the board of aldermen, common council, township committee, or other body having general charge of the affairs of any city, township, or municipal division of this state in which there is situated and maintained a race course of the character named in this section, and it also provides that no license shall be granted for the maintaining or use of a race course within the corporate limits of any city having a population of 100,000 people, according to the census last taken. The second section provides that these licenses shall be granted only upon certain expressed conditions, and the third section provides that it shall be unlawful for any person or incorporated body or association to maintain or use a race course of the character named in the act unless the license for that purpose shall have been granted as in the act provided, and that any license granted under this act shall become void upon the breach of any condition upon which it shall be granted. This act undoubtedly confers power upon the municipalities named in the first and fourth sections in a direction in which it has not been heretofore exercised. It may be that, primarily, racing within this state is not a question which concerns the internal affairs of towns or counties, but it cannot be well contended that a statute which confers power upon these municipalities to restrict, limit, or extend racing is a statute which does not demonstrably affect the internal affairs of such municipalities, within the meaning of the express inhibition of the constitution forbidding the enactment of a certain character of statutes regulating such affairs. The statute, on its face and by its express conditions, renders racing of a certain character unlawful unless the powers conferred on these municipalities are exercised to permit it. The third section of the act expressly declares that racing of the character mentioned in the act shall be unlawful unless it be legalized by a license which can only be granted by the governing body having general charge of the affairs of such municipalities, and certainly the statute in this respect is dealing with a question of municipal government, and whether it be one of police, revenue, or some other power of municipal government is quite immaterial. Municipal government is a creation of statute, and the powers of municipal government may extend to almost every feature of regulation not inhibited by the constitution within the area over which it extends. It becomes a matter of the internal regulation of the affairs of the municipality by force of the statute, and it cannot be claimed, so far as the statute is concerned, to be a question any longer of state policy, but a matter relating to the internal affairs of the municipality to which it applies. It becomes the power of the municipality. If the general subject-matter here, as contained in this statute, be one over which the legislature has power and jurisdiction, then it cannot be contended, when its power is conferred upon any municipality, aside from the question of whether the statute be invalid or not, that such matter does not become the internal affair of such municipality. It may be superfluous to pursue this subject further, but on decided authority there can exist no question but that this statute is one regulating the internal affairs of towns and counties. In Bingham v. Mayor, etc., of Camden, 40 N.J.Law, 157, (in this court,) Justice Reed says: "The establishment of a municipality, whether by custom, royal charter, or legislative grant, carries with it certain incidental powers essential to its existence as a body politic. In addition to these incidental powers, others are granted, or the incidental powers regulated by express provision in their respective charters All these matters which are the subject of control by the municipality incidentally, or which already exist, or may thereafter be conferred by grant, concern the internal affairs of the city. ...