State v. Corker

• Decision Date: 16 June 1902
• Citation: 52 A. 362,67 N.J.L. 596
• Parties: STATE (ALLISON, Prosecutor) v. CORKER, Assessor.
• Court: New Jersey Supreme Court

52 A. 362

67 N.J.L. 596

STATE (ALLISON, Prosecutor)

v. CORKER, Assessor.

Court of Errors and Appeals of New Jersey.

June 16, 1902.

(Syllabus by the Court.)

Appeal from supreme court.

Certiorari by the state, on the prosecution of William O. Allison, against Charles Corker, assessor, to review an assessment of relator's property. Prom a judgment modifying the assessment (48 Atl. 1118), prosecutor brings error. Modified.

George R. Dutton and Charles L. Corbin, for plaintiff in error.

Peter W. Stagg, for defendant in error.

COLLINS, J. In this ease the supreme court affirmed, upon certiorari, road and lamp taxes assessed in 1897 and 1898 upon lands of the prosecutor in the township of Ridgefield, in the county of Bergen, and set aside a park tax assessed in 1897 upon the same lands. The present writ of error is in review of such affirmance.

The foundation of the road and park taxes is an act entitled "An act concerning public roads and parks and creating boards for the control and management of the same," approved March 1, 1893 (P. L. p. 69; 3 Gen. St. 'p. 2951), as amended and supplemented by an act approved March 17, 1896 (P. L. p. 80), and accepted in said township. The act of 1893 provided that the township committee of any township in the state might cause it to be divided into convenient road districts, and in such case should submit the question of the acceptance or rejection of the act to the legal voters of the township, and that after acceptance such committee should call an assembly of the freeholders of each district to elect a suitable person, who should be a legal voter in the township and a freeholder and resident in such district, as a road commissioner of the district for a term of three years. The commissioners elected and their successors were constituted a board of commissioners, to be known as a "Public Road Board," of the township. At the same meeting, and annually thereafter, the assembled freeholders were authorized to vote to raise money by taxation within the district for the making, maintaining, and repairing of the public highways within the district and for keeping in repair and Improving any public parks in the township. Each commissioner was given the powers, within the limits of his district of the overseers of highways, and to the board was committed the duties of the township committee over highways and parks. Powers of condemnation and improvement, and assessment of consequent benefits, were also conferred by the act, but those are not Involved in this case. The taxes voted in each district were to be assessed and collected by the township assessor and collector. This statute was by the supreme court, in 1894, held unconstitutional in Allison v. Blake, 57 N. J. Law, 6, 29 Atl. 417, 25 L. R. A. 480, because the election of the commissioners was limited to the freeholders of the districts. The act of 1896 by amendment of certain sections vested the power to elect commissioners and to vote taxes in the legal voters of the respective districts, instead of in the freeholders of the district and authorized the township committee, with the consent of the public road board, to increase or diminish the number or change the boundaries of the road districts. The foundation of the lamp tax is an act entitled "An act authorizing the division of townships into street lighting districts and the erection and maintenance of street lights therein and the election of street light commissioners in said district" passed May 27, 1894 (P. L. p. 540; 3 Gen. St. p. 3669), as amended March 25, 1896 (P. L. p. 132). the act of 1894 authorized the township committee of any township in any county of the second and third class in the state to set off and divide the said township into districts, to be designated by numbers, and to alter the same from time to time, and by resolution to define and declare the limits, boundaries, and numbers of the districts; and it was provided that the same, being so defined and declared, should be deemed and taken as street lighting districts, each of which should be a body corporate under the name of "Street Lighting District No. —," and have power to sue and be sued, make and use a common seal, and all other corporate powers necessary for carrying out the powers conferred by the act. It was further provided that on the first Tuesday of June of each year the legal voters of such district should be authorized to meet for the purpose of electing three commissioners of the district, and to determine by ballot, by the vote of the majority of those present and voting, a sum of money to be raised and expended within the district for the ensuing year for the erection and maintenance of street lights. It was further provided that the sum so appropriated should be certified to the commissioners, who should give notice to the township assessor to assess the same upon the taxable property within the district, and that the taxes so assessed should be collected by the township collector, and paid over to the commissioners of the district, who were empowered to expend the same for the purpose of lighting the streets within the district. The act of 1893 by amendment eliminated the restriction of the original act to townships in particular counties.

We agree that the act of 1893 was unconstitutional for the reason given in the supreme court in the ease of Allison v. Blake, ubi supra. In Smith v. Howell, 60 N. J. Law, 384, 38 Atl. 180, in an opinion in the supreme court upholding the act of 1894 as amended, it was rightly conceded that the original act was unconstitutional; but we do not approve the reason given for that concession. Such reason was that the title of the act could not support legislation not extending to all townships. The case of Beverly v. Wain, 57 N. J. Law, 143, 30 Atl. 545, was cited as authority; but in that case the object expressed in the title of the statute involved was legislation respecting "the cities of Wis state,"—a phraseology necessarily extending to all such cities, while the enactment was not so extensive. The opinion delivered in the cause, which seems to have been misleading by reason of a terseness otherwise admirable, has been properly explained in Johnson v. Borough of Asbury Park, 60 N. J. Law, 427, 431, 39 Atl. 693, and Kennedy v. Borough of Belmar, 61 N. J. Law, 20, 25, 38 Atl. 756. The real reason of unconstitutionality of the act of 1894 was that the townships of the specified counties had no characteristics to differentiate them from townships of other counties. The act, therefore, was in violation of article 4, § 7, par. 11, of the constitution, prohibiting private, local, or special laws regulating the internal affairs of towns and counties.

It is contended for the plaintiff in error that, notwithstanding the amendments of 1896, the legislation recited is still unconstitutional. A preliminary question raised is of the validity of the two acts of 1896, independently considered. It is argued that, as the original statutes were void, they could not be amended. For the purposes of this case it may be conceded that the unconstitutional provisions referred to were inseparable from the legislative intent, so that in each case the entire statute was unconstitutional. The question raised, therefore, is fairly presented. The argument is that an unconstitutional statute is a nullity. Granting this, it does not follow that it may not be imported into valid legislation by appropriate reference. It is entirely within the legislative power to give effect to documents without their full recital. Statutes validating agreements of lease, merger, or consolidation of railroad corporations are usually cast in that form (e. g., P. L 1871, pp. 946-1093; P. L. 1872, p. 567). The matter is one purely of identification. Surely nothing can be more definite than a reference to a document that has been regularly promulgated as a public statute. In Mortland v. Christian, 52 N. J. Law, 521, 20 Atl. 673, it was held by this court that a statute providing for election of chosen freeholders of a county from assembly districts created under previous legislation was valid, whether such districts could be constitutionally created or not. But I am prepared to go farther, and hold that an unconstitutional statute is nevertheless a statute; that is, a legislative act. Such a statute is commonly spoken of as void. I should prefer to call it unenforceable, because in conflict with a paramount law. If properly to be called void, it is only so with reference to claims based upon it. Neither of the three great departments to which the constitution has committed government by the people can encroach upon the domain of another. The function of the judicial department with respect to legislation deemed unconstitutional is not exercised in rem, but always in personam. The supreme court cannot set aside a statute as it can a municipal ordinance. It simply ignores statutes deemed unconstitutional. For many purposes an unconstitutional statute may influence judicial judgment, where, for example, under color of it private or public action has been taken. An unconstitutional statute is not merely blank paper. The solemn act of the legislature is a fact to be reckoned with. Nowhere has. power been vested to expunge it or remove it from its proper place among statutes.

The plaintiff in error, in support of his contention, refers us to this injunction of the constitution: "No law shall be revived or amended by reference to its title only, but the act revived or the section or sections amended shall be inserted at length." Article 4, § 7, par. 4. The provision as to revival has no bearing on the present case. The claim is that under the provision as to amendment where a statute is wholly unconstitutional, an amendment of the section or sections that make it so leaves the other sections unaffected, unless inserted at length in the new statute, and that they should be considered as if...