State v. Hoagland

• Decision Date: 20 November 1888
• Citation: 51 N.J.L. 62,16 A. 166
• Parties: STATE ex rel. WARNER, v. HOAGLAND et al.
• Court: New Jersey Supreme Court

16 A. 166

51 N.J.L. 62

STATE ex rel. WARNER,

v. HOAGLAND et al.

Supreme Court of New Jersey.

November 20, 1888.

(Syllabus by the Court.)

On application for a mandamus.

By an act entitled "An act concerning the construction, care, and improvement of the public ways, parks, and sewers in certain of the cities of this state, and assessments for the same," passed February 14, 1888, (P. L. 1888, p. 88,) it was enacted that in each of the cities of this state, excepting cities of the first class, the opening, construction, care, cleaning, repairing, alteration, and improvements of the roads, streets, avenues, lanes, alleys, and parks, and of the public sewers and drains within the corporate limits thereof, should be vested exclusively in the common council or board of aldermen of such city. Section 3 provided that any officer, commission, or board (other than the common council or board of aldermen) now possessing any of the powers mentioned in the first section of the act in any of the cities aforesaid should, as soon as this act should take effect in such city, cease, determine, and be abolished; and that all assessments then remaining unpaid for street or sewerage improvements in such city should be collected for the use of said city by the collector or other officer having charge of the collection of taxes, with the same power and authority for the collection of such assessments, by sale of land or otherwise, theretofore possessed by the officer, board, or commission so abolished. The seventh section provided that all acts and parts of acts, both general and special, inconsistent therewith, should be repealed, with a proviso that none of its provisions should take effect in any city until the acceptance thereof should have been submitted to a popular vote, and that the legal voters of said city might at such election decide upon the acceptance or rejection of the act, and that, if there should be a majority of ballots in favor thereof, but not otherwise, the act should take effect in such city immediately. The eighth section provided that the act should take effect immediately, as regards the submission thereof to popular vote. By special act of the legislature, approved March 23, 1871, entitled "An act appointing commissioners of streets and sewers in the city of New Brunswick," the office of commissioners of streets and sewers was created. To this official body was committed the sole and exclusive power of directing and causing streets to be graded and improved, and sewerage works to be constructed, and of making assessments therefor on property benefited, with power to collect the assessments by the sale of lands. The act provided that the assessments should be entered in books to be kept by the commissioners, to be designated "Books of Assessments for Streets and Sewers," and that transcripts thereof should be conclusive evidence of such assessments. In addition to the powers conferred on the commissioners for the execution of public improvements, and the making and collection of assessments, the board was authorized to make and issue, in the name of "The Commissioners of Streets and Sewers in the City of New Brunswick," improvement bonds under the hands of the commissioners, and under the seal of the commission, pledging for the redemption thereof the faith and credit of the city, for the purpose of paying the cost and expenses of the improvements authorized by the act. To provide for the redemption of these bonds the commissioners were required to invest the assessments, when collected, in certain stocks or bonds, to be deposited in a bank to the credit of the sinking fund; the interest accruing thereon to be subject to draft by the commissioners, the principal to be applied by the bank to the redemption of the improvement bonds. P. L. 1871, p. 795. The respondents were elected, and qualified as commissioners for terms respectively which had not expired when the act of 1888 was passed. Assessments for benefits, aggregating a considerable sum, made by the commissioners, are still due and unpaid, and improvement bonds issued by them to a large amount are outstanding, and bonds in which assessments collected were invested by the commissioners are now on deposit in the bank for the redemption of the improvement bonds so issued. The act of February 14, 1888, was submitted to a popular vote at a charter election on April 10, 1888, and accepted, a majority of ballots being in favor thereof. The election and acceptance and all proceedings relating thereto were in compliance with the act. The relator is collector of taxes, the officer having in charge the collection of taxes in New Brunswick. He applies for a mandamus to obtain the books containing the record of unpaid assessments, kept by the commissioners under the act of 1871.

Argued before DEPUE, VAN SYCKEL, and DIXON, JJ.

A. H. Strong, for relator. A. V. Schenck, contra.

DEPUE, J., (after stating the facts as above.) The act of 1888, on which the relator founds his right to the possession of these records, abolished the office of the respondents, and transferred its duties to the relator. The respondents resist the application, and contend that the act of 1888 is unconstitutional and void. The act thus drawn in question excepts from its operation "cities of the first class." It is insisted that for this reason it is a special and local law, regulating the internal affairs of cities. The classification of cities was made by the act of March 4, 1882. Supp. Revision, 506. That statute divided cities into four classes,—cities of the first class, consisting of those having a population exceeding 100,000; cities of the second class, those having a population not less than 12,000 nor more than 100,000; cities of the third class, consisting of those not embraced within either the first or second classes, excepting cities on the Atlantic ocean, which are seaside or summer resorts; the cities thus excepted being designated as cities of the fourth class. The scope and purpose of the classification act of 1882 has been a subject of misapprehension which has occasioned some faulty legislation. The act, properly construed, does not purport to establish an absolute rule to discriminate between classifications which are admissible under the constitutional provision and those forbidden by its interdict. The office of the act is to provide a classification for the convenience of municipal legislation, analogous to the interpretation clauses frequently inserted in statutes or general acts assigning a meaning to particular words, or a particular construction to statutory expressions, such as the general act relative to statutes. Revision, 1120. The third section, which declares that laws referring to cities under the classification therein made shall be construed to apply to and embrace all cities within that classification, clearly indicates the purpose to be that of statutory construction. Assigning to the act of 1882 its appropriate office, the result will be that the statute under consideration will read as excluding from its operation cities having a population exceeding 100,000 inhabitants; and upon such a rendering the question will arise whether the classification adopted is such in substance as to bring this act within the category of general laws. It is incontestable at this day that population may be made the basis of classification in statutes relating to municipal bodies and their police powers. The power of the legislature to legislate within that sphere on a classification on the score of population has been set at rest by two recent decisions. I refer to Randolph v. Wood, 49 N. J. Law, 85, 7 Atl. Rep. 286, (which was affirmed by the court of errors, 50 N. J. Law, 175, 15 Atl. Rep. 271, the opinion of Mr. Justice KNAPP in the supreme court being adopted as the opinion of the court,) and State v. Scott, 50 N. J. Law, 15 Atl. Rep. 272, decided by the court of errors by a unanimous vote, the opinion of Mr. Justice VAN SYCKEL in that case being the opinion of the entire court. Randolph v. Wood was decided upon an act entitled "An act concerning cities of the third class," approved April 20, 1883, (Supp. Revision, p. 527, § 129,) and framed in compliance with the classification act of 1882. It enacted that in cities of the third class the term of office of the legislative body should be for as many years as there were members from each ward, and provided for so classifying members that the term of one member from each ward should expire each year, and one member from each ward should be elected for each year. The act wrought a radical change in the organization of cities within its purview, and was conspicuously a regulation of internal affairs; and in the classification act of 1882, cities of the third class were those with a population of less than 12,000, excluding cities bounding upon the Atlantic ocean, which were seaside or summer resorts. The act was upheld by this court and the court of errors as a constitutional exercise of legislative power. In State v. Scott, the section in question prescribed the minimum fees for licenses to sell liquors, graduated by a classification upon population, $100 being the minimum fee in municipalities having a population of not more than 3,000; $150 in municipalities having a population exceeding 3,000, and not exceeding 10,000; and $250 in municipalities with a population in excess of 10,000. It was conceded that this section was a regulation of the internal affairs of towns and cities. The classification on which it was founded was sustained.

It must not be inferred from these decisions that classification on the basis of population may be resorted to as a means of evading the constitutional interdict of local and special laws, where the classification is plainly illusory. Mr. Justice KNAPP, in dealing with the case then in hand, states the principle in these words: "A law is to be regarded as general when its...