State v. Simon

• Decision Date: 17 June 1891
• Citation: 63 N.J.L. 550,22 A. 120
• Parties: STATE ex rel. HELFER v. SIMON.
• Court: New Jersey Supreme Court

22 A. 120

63 N.J.L. 550

STATE ex rel. HELFER

v. SIMON.

Supreme Court of New Jersey.

June 17, 1891.

(Syllabus by the Court.)

On rule to show cause why a writ of quo warranto should not issue to show by what warrant or authority the respondent claims to use the office, etc., of city physician of the city of Hoboken.

Argued before Depue, Van Syckel, and Scudder, JJ.

W. S. Stuhr, for relator.

W. D. Daly, for defendant.

SCUDDER, J. On July 23, 1889, the mayor of the city of Hoboken appointed the relator city physician for the term of three years, ending May 1, 1892, under the act of Mays, 1889. Laws 1889, p. 328. This law, in terms, authorizes such appointment to be made, with the confirmation of the common council, by a majority vote. The communication from the mayor of his nomination of the relator for city physician was received by the common council at a meeting held July 23, 1889, and it appears by the minutes that four councilmen voted to confirm the nomination, three voted against it, and one was absent. The entire number of councilmen was eight,—two from each of the four wards into which Hoboken is divided. A majority vote of common council would be five votes, and four would not be sufficient to confirm the nomination, if this law is to govern the appointment. We are satis-tied that it is not constitutional. The title of the act is, "An act to authorize cities of the second class to extend the term of office and fix the rate of compensation of certain officers therein." The first section enacts "that in all cities of the second class in this state wherein they have an officer known as 'city physician,' the mayor of any city shall appoint such officer, and the board of aldermen or other legislative body of said city, by a majority vote, confirm said appointment," etc. The second section is merely a repealer. The title is not general, but limits its application to all cities of the second class, and relates to extending the term and fixing the compensation of certain officers therein. The body of the act is even more objectionable than the title, for it confines its operation to cities of the second class, wherein they have an officer known as "city physician." This is a subdivision of classification that makes the purpose of the act very apparent,—to control the appointment of city physician in certain cases. Such legislation is unconstitutional, and the title of the act, though attempting to be more general in its terms, is local and special in its object. It is not within the ruling in Bumsted v Govern, 47 N. J. Law, 368, 1 Atl. Rep. 835, where the general purpose and title of the act were to produce uniformity in the selection and duties of directors of the boards of chosen freeholders of the state, though it applied alone to the county of Hudson; for this title is not general, but distinctive and exceptional, as it relates to some cities and certain officers in those cities, and the body of the act is still further limited to the appointment of a single officer. Mortland v. Christian, 52 N. J. Law, 521,20 Atl. Rep. 673, gives...