State v. Wrightson

• Decision Date: 09 November 1893
• Citation: 56 N.J.l. 126,28 A. 56
• Parties: STATE ex rel. MORRIS et al. v. WRIGHTSON, Clerk. SAME v. O'CONNOR, Clerk, et al.
• Court: New Jersey Supreme Court

28 A. 56

56 N.J.l. 126

STATE ex rel. MORRIS et al.

v. WRIGHTSON, Clerk.

SAME

v. O'CONNOR, Clerk, et al.

Supreme Court of New Jersey.

Nov. 9, 1893.

Applications of Charles B. Morris and others for writs of mandamus to James T. Wrightson, clerk of court, of Essex county, and William E. O'Connor, clerk of the city of Newark, and others, clerks of townships, etc., in said county, to conduct elections for members of the general assembly according to the constitutional provisions. Heard upon rule to show cause and depositions. Rule made absolute.

Argued at June term, 1893, before DEPUE, REED, and LIPPINCOTT, JJ.

Cortlandt Parker, Thomas N. McCarter, John R. Emery, and R. Wayne Parker, for relators.

Allan L. McDermott and Frederic W. Stevens, for defendants.

DEPUE, J. The act of April 16, 1846, (Rev. St. 409,) entitled "An act to regulate elections," by its first section enacted that on the Tuesday next after the first Monday in November in each year they shall be held in each county to elect for such county such a number of persons to be members of the general assembly as such county shall be entitled to elect. The first act dividing counties into assembly districts was passed March 26, 1852, (P. L. 1852, p. 465.) This act was a supplement to the act to regulate elections. The second section of that act enacted that on the day mentioned in the act of 1846 in each succeeding year an election should be held in each of the said assembly districts for one member of the general assembly, who "shall be a resident of said district." In 1861, at the session of the legislature held next after the federal census of 1860, an act was passed which was also a supplement to the act regulating elections, forming the several counties into as many assembly districts as said counties were respectively entitled to members of assembly. P. L. 1861, p. 529. In 1871 a similar act was passed, with the title of "An act to reapportion the several assembly districts of the state of New Jersey." P. L. 1871, p. 45. By the general election law of 1876 the first section of the general election act of 1846 was amended by requiring an election to be held in the several election districts in each county to elect for such county such a number of persons to be members of the general assembly as such county shall be entitled to elect. Revision, p. 337. Supplements to the apportionment act of 1871 were passed March 4, 1878, (P. L. pp. 40, 542;) March 6, 1878, (P. L. p. 49;) March 12, 1878, (P. L. p. 81;) March 29, 1878, (P. L. p. 570;) April 3, 1878, (P. L. p. 266;) April 4, 1878, (P. L. p. 285;) April 4, 1878, (P. L. p. 287;) March 27, 1889, (P. L. p. 115.) Of these acts, all with the exception of the act of April 3, 1878, were alterations in several of the counties of the assembly districts established by the act of 1871, and the act of April 3, 1878, appears to be a general act redisricting all the assembly districts in this state. In 1881 a general act was passed apportioning members of the assembly to the several counties in conformity with the federal census of 1880, and creating new assembly districts in each of the counties. P. L. 1881, p. 146. In 1891 another general act was passed, making a new apportionment of members of assembly among the several counties in conformity with the census of 1890, creating new assembly districts in each of the counties. P. L. 1891, p. 339. By several acts, passed respectively March 7, 1892, (P. L. p. 52,) March 23, 1892, (P. L. p. 180,) March 24, 1892, (P. L. p. 251,) which were supplements of the general act of 1891, alterations were made in the assembly districts of the counties of Mercer, Cumberland, and Burlington. None of this legislation after the act of 1852 contained an express provision for the election of one member of the assembly in each assembly district. But the second section of the act of 1852 has not been repealed, and that section expressly provided for the election of one member in each of the districts. The contention in behalf of the relators that, although assembly districts are established, there is no law in existence which purports to confer the right to elect members of the assembly otherwise than by the counties respectively, is without substance.

The question, therefore, arises directly in this proceeding whether the act of 1891 prescribed a constitutional method of electing members of the general assembly. The consideration arising in limine concerns the right and power of the judiciary to take cognizance of the subject. The contention of counsel in resisting the allowance of this writ is that the question is a political question, and not subject to judicial review. The constitution delegates to the legislative department of the government the function of providing for the election of members of the assembly in the manner and subject to the restrictions prescribed by the constitution. A statute in the performance of that function is the exercise of a legislative, and not a political, power; and the constitutionality of the act by which that legislative power is exercised is undoubtedly a subject of Judicial inquiry. State v. Cunningham, (Wis.) 51 N. W. 725; Parker v. State, (Ind. Sup.) 32 N. E. 836. The prosecutors who apply for this writ are citizens and legal voters in the county of Essex. The gravamen of their complaint is that by the operation of the act of 1891 they are restricted in the exercise of the elective franchise in as full a manner as by the constitution they are entitled to enjoy it. The interest the relators have in the subject-matter of this controversy is sufficient to give them a standing in court to prosecute this writ. If the writ be allowed, its mandate will be directed not to members of the legislature, but to subordinate officers, whose duties in connection with elections are purely ministerial. Recent decisions have furnished weighty precedents affirming the jurisdiction of the courts on the prosecution of citizens and voters over the constitutionality of acts of the legislature making apportionments for the election of its members. State v. Cunningham, supra; Giddings v. Blacker, (Mich.) 52 N. W. 944; Parker v. State, (Ind. Sup.) 32 N. E. 836. In U. S. v. Ballin, 144 U. S. 1, 12 Sup. Ct. 507, the court entertained jurisdiction to pass upon the validity of a rule or the house of representatives for determining the presence of a quorum to transact business. In McPherson v. Blacker, 146 U. S. 1, 13 Sup. Ct. 3, the same court entertained jurisdiction to consider whether a statute of the state of Michigan providing for the choice of presidential electors was in contravention of the constitution. In the argument counsel directly made the point that the controversy was not judicial, because whatever decision that court or any other court might make as to the validity of the state law was subject to review by other political officers and agencies. To this argument Chief Justice Fuller, in delivering the opinion of the court, responded in this language: "it is argued that the subject-matter of the controversy is not of judicial cognizance, because it is said that all questions connected with the election of a presidential elector are political in their nature; that the court has no power finally to dispose of them; and that its decision would be subject to review by political officers and agencies, as the state board of canvassers, the legislature in joint convention, and the governor, or, finally, the congress. * * * The question of the validity of this act as presented to us by the record is a judicial question, and we cannot decline the exercise of our jurisdiction upon the inadmissible suggestion that action might be taken by political agencies in disregard of the judgment of the highest tribunal of the state as revised by our own." In State v. Cunningham, Giddings v. Blacker, and McPherson v. Blacker the writs prayed for were to go to the secretary of state, commanding him to perform the ministerial duty of giving notice that at the next general election electors would be chosen in a certain manner.

By statute the city and township clerks are to give public notice of the time and place and purpose of holding an election, (Revision, p. 338, § 9;) and by the ballot reform act of 1890 it is made the duty of the clerk of the county to receive nominations, and provide official ballots for the election of members of the assembly, (P. L. 1890, p. 361.) The prayer of the petitioners is for a mandamus directed to these officers in the alternative either to give notice, receive nominations, prepare ballots for the election of the number of members of the assembly apportioned to the county of Essex by the whole body of the legal voters of the county, or to receive nominations, prepare ballots and to give notice of an election of such members in accordance with the assembly districts created by the act of 1881. The map marked "Exhibit R, 12" shows the territorial location and extent of the assembly districts created by the act of 1891. The following table, compiled from the testimony, exhibits the population of these districts respectively, and also the number of voters polled in each district at the election of 1892, and the majority of the members elected in each district:

District.

Majority

1892.

Population.

Vote.

Dem.

Rep.

First

18,616

3,381

521

Second

14.897

3,634

310

Third

11,349

3,209

587

Fourth

17,746

4,662

596

Fifth

27,431

6,750

1,334

Sixth

25, 245

3,298

648

Seventh

29,748

6,691

239

Eighth

25,600

5,137

119

Ninth

24,872

6,386

2,130

Tenth

28,172

6,454

751

Eleventh

42,412

9,980

1,623

8,771

5,097

In this construction of districts the eleventh district, with a population of 42,412, and 9,980 qualified voters, is allowed one member of assembly; and the third district, with a population of 11,349, and 3,209 voters, obtains an equal representation in the popular branch of the legislature. A qualified voter of the county of Essex who casts his ballot in the...