State v. Stout

• Decision Date: 20 February 1896
• Citation: 33 A. 858,58 N.J.L. 598
• Parties: STATE (BOROUGH OF GLEN RIDGE, Prosecutor) v. STOUT et al.
• Court: New Jersey Supreme Court

33 A. 858

58 N.J.L. 598

STATE (BOROUGH OF GLEN RIDGE, Prosecutor)

v. STOUT et al.

Supreme Court of New Jersey.

Feb. 20, 1896.

(Syllabus by the Court.)

Certiorari, on the prosecution of the borough of Glen Ridge, against C. Lee Stout and others, to review proceedings taken to incorporate the city of Bloomfield. Proceedings set aside.

Argued November term, 1895, before DEPUE, VAN SYCKEL, and GUMMERE, JJ.

Riker & Riker and Joseph Coult, for prosecutor.

Richards & Gallagher and Thos. N. McCarter, for defendants.

VAN SYCKEL, J. This case involves the legality of the proceedings taken to incorporate a city to be called the "City of Bloomfield," under the act entitled "An act for the incorporation of cities," approved March 22, 1895 (P. L. 551). The act provides "that the inhabitants of any district lying wholly in one county, having a population exceeding five thousand, not including any territory already within the limits of any incorporated city or town, may become a body corporate by the name and title of the city of——," etc.

Reasons 1 and 5 relied upon for reversal are that the territory taken for the new city includes lands already in the borough of Glen Ridge, which is claimed to be a "town," within the meaning of the act of 1895; and that, if said borough is not regarded as a town, then the act is local and special, because it excepts only cities and towns. The classification in the act is alleged to be illusory. The word "town" is used in our legislation in various senses, but a reference to the borough act will show conclusively that, in legislation upon that subject, "boroughs" are not included when the word "town" is used in the supplement of April 22, 1886, to the borough act of 1878, under which Glen Ridge is incorporated, it is provided "that a borough government may be formed under this act and the act to which it is a supplement, by the inhabitants of any portion of this state, now subject to the government of commissioners, or a police and sanitary board, or any other form of municipal government other than that of an incorporated city or town." Supp. Revision, p. 53, § 1. This shows the distinction in the legislative mind between boroughs and towns. Boroughs cannot be formed out of territory already part of a city or town. The word "town," in the act of 1895, does not include boroughs. By the act of 1888 (P. L. 483), for the formation of towns, boroughs may be incorporated as towns, showing that the legislature regards towns as a higher grade of municipality than boroughs, and they are given all powers necessary to conduct local government as fully as cities in most respects. Boroughs which are of an inferior class are prohibited by the supplement of 1886 to the borough act to appropriate the territory of cities and towns which constitute a higher class; but cities and towns may absorb boroughs, for thereby they would be elevated to a higher plane. The power of the legislature to enact general laws providing for the transition from a lower to a higher grade of municipality is recognized by the court in State v. Borough of Clayton, 53 N. J. Law, 277, 21 Atl. 1026. There is therefore a substantial reason for withdrawing towns from the operation of the act of 1895 which does not apply to boroughs. The exclusion of towns and the inclusion of boroughs is not arbitrary or illusory. If this is not true, it is difficult to perceive how the act for the incorporation of boroughs and the act for the formation of towns can both be constitutional. Cities and towns constitute substantial classes. Boroughs and territory subject to the government of commissioners, or of a police and sanitary board, or other local boards, are not within either class. It is competent for the legislature to pass a law for the formation of cities authorizing the inclusion of boroughs, and excluding towns, provided all boroughs are included and the law is made applicable to all counties. Such a law is general, and not special. It provides for the cities so constituted a uniform system of government, and prevents the diversity to which the constitution is inimical. These reasons cannot prevail.

Reason 2 is that said act attempts to delegate the legislative power in contravention of the constitution. It provides that the township committee in which the district to be incorporated lies shall meet for the purpose, among other things, of hearing complaints that territory has been unreasonably included or excluded, and of changing boundaries of the proposed city at their discretion. In re Ridgefield Park, 54 N. J. Law, 288...