State v. Wurts

• Decision Date: 19 June 1899
• Citation: 43 A. 744,63 N.J.L. 289
• Parties: STATE (BOTT et al., Prosecutors) v. WURTS, Secretary of State.
• Court: New Jersey Supreme Court

43 A. 744

63 N.J.L. 289

STATE (BOTT et al., Prosecutors)

v. WURTS, Secretary of State.¹

Court of Errors and Appeals of New Jersey.

June 19, 1899.

(Syllabus by the Court.)

Error to supreme court.

Certiorari by the state, on the relation of Charles Bott and others, against George Wurts, secretary of state. Judgment for defendant (40 Atl. 740), and plaintiffs bring error. Affirmed.

William D. Edwards, Allan McDermott, and John P. Stockton, for plaintiff in error.

Samuel H. Grey, Atty. Gen., for defendant in error.

DIXON, J. Article 9 of the constitution of New Jersey, ratified by the people August 13, 1844, is as follows: "Any specific amendment or amendments to the constitution may be proposed in the senate or general assembly, and if the same shall be agreed to by a majority of the members elected to each of the two houses, such proposed amendment or amendments shall be entered on their journals, with the yeas and nays taken thereon, and referred to the legislature then next to be chosen, and shall be published for three months previous to making such choice, in at least one newspaper of each county, if any be published therein; and if, in the legislature next chosen as aforesaid, such proposed amendment or amendments, or any of them, shall be agreed to by a majority of all the members elected to each house, then it shall be the duty of the legislature to submit such proposed amendment or amendments, or such of them as may have been agreed to as aforesaid by the two legislatures, to the people, in such manner and at such times, at least four months after the adjournment of the legislature, as the legislature shall prescribe; and if the people, at a special election to be held for that purpose only, shall approve and ratify such amendment or amendments, or any of them, by a majority of the electors qualified to vote for members of the legislature voting thereon, such amendment or amecdments so approved and ratified shall become part of the constitution: provided, that if more than one amendment be submitted, they shall be submitted in such manner and form that the people may vote for or against each amendment separately and distinctly; but no amendment or amendments shall be submitted to the people by the legislature oftener than once in five years." The legislature of 1896 and 1897 having regularly agreed to three proposed amendments, one of which related to lotteries, another to appointment to office, and the third to woman suffrage, an act was passed and approved May 25, 1897, for submitting these amendments to the people of the state. This act, after providing for the transmission to the secretary of state of certificates showing the results of the voting in the several election precincts throughout the state, enacts as follows: "It shall be the duty of the governor to summon to attend him, on the nineteenth day of October next, four or more of the members of the senate, who shall meet on said day of October in the senate chamber, in the city of Trenton, at the hour of two o'clock p. m., and they with the governor shall constitute a board of state canvassers to canvass and estimate the votes given for and against each of said amendments; and the said board of state canvassers shall proceed to organize and determine the result according to the provisions of the act entitled 'An act to regulate elections,' approved April 18, 1876, so far as they are applicable. * * *. The said board of state canvassers shall determine and declare which of said proposed amendments have been adopted, and shall forthwith deliver a statement of the result as to each amendment to the secretary of state of this state, to be filed in his office as an official paper, and any proposed amendment which by said certificate and determination of the board of state canvassers shall appear to have received in its favor a majority of all the votes cast in the state for and against said proposed amendment shall from the time of filing such certificate be and become an amendment to and part of the constitution of this state; and it shall be the duty of the governor of this state forthwith after such determination to issue a proclamation declaring which of said proposed amendments have been adopted by the people." Laws 1897, p. 466, § 12. The board of state canvassers, provided for as above, having, on October 19, 1897, filed in the office of the secretary of state a statement of the result of the election, and its determination and declaration that the proposed amendments relating to lotteries and to appointment to office were adopted, and that the proposed amendment relating to woman suffrage was rejected, and the governor, on October 25, 1897, having issued a proclamation declaring that the said amendments relating to lotteries and to appointment to office had been adopted by the people, and become part of the constitution of the state, the supreme court, on December 3, 1897, at the instance of Charles Bott and others, citizens and taxpayers of the state, who voted upon said proposed amendments, allowed a writ of certiorari to remove into that court for review the statement of the result of the election, made by the state board of canvassers, touching the proposed amendment relating to lotteries, in order that it might be judicially decided whether, on the facts shown in that statement, the board of canvassers had legally determined that the said proposed amendment was adopted. Upon proper return to that writ and due proceedings and argument, the supreme court considered the reasons urged by the prosecutors against the legality of the determination of the board of state canvassers, and decided (1) that their determination was legal, and (2) that the concurrence of the board of state canvassers and the executive department of the government, in their respective official functions, placed the subject-matter of complaint beyond the cognizance of the judicial department of the government, and upon each of these grounds adjudged that the writ should be dismissed. This judgment is now before us on writ of error.

The question naturally arising first in this case concerns the legitimate scope of our inquiry: Have we authority to consider and decide whether the determination of the board of state canvassers, that the proposed amendment had been adopted, was lawful, or did that determination, followed by the proclamation of the governor, preclude judicial cognizance of the subject? In dealing with this question it is well to note its real character: First The objections urged by the prosecutors against the legality of the determination of the board rest upon the express provisions of the constitution; they being that the act by which the proposed amendments were submitted to the people did not submit them "in such manner and form that the people might vote for or against each amendment separately and distinctly," as the constitution directs, and that the lottery amendment, according to the statement of the result of the election made by the board, and brought before the court by the writ of certiorari, was not approved and ratified by a majority of the electors qualified to vote for members of the legislature voting thereon, as likewise the constitution requires. Secondly. It should be observed that neither the board of canvassers nor the governor was exercising a function devolved upon them by the constitution. Each derived authority wholly from the statute. The powers conferred upon them might as well, if the legislature had so willed, have been cast upon any other body. Thus, by act of congress, under the federal constitution, which is no more inexplicit on this topic than ours, substantially the same functions of determination and promulgation are to be performed by the secretary of state. Rev. St. U. S. 1873-74, § 205. Thirdly. The present proceeding is one of direct, not collateral, review. Even if it be conceded that, whenever the validity of this proposed amendment as a part of the constitution was incidentally assailed, conclusive effect would be given to the action of these statutory authorities, so far as that action bad not been overturned, yet it would by no means follow that their action could not in this proceeding be questioned and annulled. The determination of every legal tribunal appearing to be within its jurisdiction, though impregnable by collateral attack, is subject to reversal by appeal. Fourthly. The subject for consideration was brought by legal process before that tribunal (the supreme court), which in our system of government possesses the judicial power, if it resides anywhere, of reviewing and setting aside, when illegal, the conclusions of statutory tribunals. It thus becomes manifest that there was present in the supreme court, and is now present in this court, every element tending to maintain jurisdiction over the subject-matter, unless it be true, as insisted, that the judicial department of the government has not the right to consider whether the legislative department and its agencies have observed constitutional injunctions in attempting to amend the constitution, and to annul their acts in case they have not done so. That such a proposition is not true seems to be indicated by the whole history of jurisprudence in this country.

In New Jersey the judicial authority was thus declared by Chief Justice Beasley, in State v. Rogers, 56 N. J. Law, 480, 616, 28 Atl. 758, and on this point he was delivering the opinion of every justice of the supreme court: "When the inquiry is whether the legislature or any other body or officer has violated the regulations of the constitution, it is entirely plain that the decision of that subject must rest exclusively with the judicial department of the government." In that case the right of the court to determine which body of men constitutionally composed the senate of the state was vindicated. On the same principle the supreme court In State v. Pritchard, 36 N. J....