Wanser v. Hoos

• Decision Date: 02 October 1897
• Citation: 38 A. 449,60 N.J.L. 482
• Parties: WANSER v. HOOS.
• Court: New Jersey Supreme Court

38 A. 449

60 N.J.L. 482

WANSER

v. HOOS.

Court of Errors and Appeals of New Jersey.

Oct. 2, 1897.

Error to supreme court.

Action between Peter F. Wanser and Edward Hoos. From a judgment for the latter, the former brings error. Affirmed.

Charles L. Corbin, for plaintiff in error.

Allen L. McDermott, for defendant in error.

DEPUE, J. The issue presented in this case is upon the validity of an act of the legislature entitled "An act relating to cities of the first class in this state, and providing for the holding of municipal and charter elections therein, and regulating the terms of elective and appointive officers therein." P. L. 1897, p. 43. It provides that all municipal officers in cities of the first class shall be elected in each year on the first Tuesday after the first Monday of November, which is the day fixed for the annual election of state and county officers, and upon the same official ballots required by law for the election of state and county officers. It combined the election of municipal officers with elections for state and county officers, which theretofore bad been kept separate. The contention was that this act was in violation of constitutional provisions. This contention was sustained by the supreme court. Hoos v. O'Donnell, 37 Atl. 447.

Paragraph 11, § 7, art. 4, of the constitution, provides that the legislature shall not pass any private, local, or special laws in certain enumerated cases, among which is "regulating the internal affairs of towns and counties." This constitutional prescription is a restriction on the power of the legislature. This limitation on the sovereign power of the legislature did not appear either in the constitution of 1776 or 1845. It was introduced into the organic law of this state by an amendment in 1875, and grew out of the public appreciation of the evils that spring from local and special legislation in relation to municipal affairs. The people, in adopting this constitutional amendment, intended to eradicate the source of these evils. In language too plain and explicit to be misapprehended, it prohibited the legislature from passing any local or special law on that subject, and restricted such legislation to general laws. The construction and force of this constitutional provision presents a legal question to be decided by the courts. State v. Rogers, 56 N. J. Law, 480, 28 Atl. 726, and 29 Atl. 173. The course of legislation on this subject by the legislature, while it is entitled to respect, cannot be permitted to control the decision of the judicial department of the government in its construction of the constitutional provision; for, as was said by Chief Justice Marshall in Cohens v. Virginia, 6 Wheat. 264, "the power to make, or unmake, the fundamental instrument of government, resides only in the whole body of the people, and not in any subdivision of them." The legislature may, without infringing on this constitutional interdict, resort to classification for the convenience of legislation. The act of 1882 (1 Gen. St. p. 458), by which cities were divided into classes, and other statutes, by which boroughs and counties were in like manner divided, are instances of such legislation. The act of 1882 expressly declares that the classification therein made was for the purpose of municipal legislation in relation to cities, and that all legislation founded upon such classification should be construed to embrace all cities of the class referred to. The courts, in a series of cases too numerous to be cited, have given to this constitutional provision a fixed construction. In the first case in which this constitutional provision came before the court, a general law, as contradistinguished from a special or local law, within the meaning of the constitutional provision, was defined to be a law that embraced a class of subjects or places, and did not omit any subject or place naturally belonging to such a class. Van Riper v. Parsons, 40 N. J. Law, 1.

The test of the generality of a law adopted is that it shall embrace all and exclude none whose conditions and wants render such legislation equally appropriate to them as a class. It is also equally well settled by decisions of our courts that, although population may be made the basis of classification in statutes relating to municipal bodies, such a classification cannot be made the means of evading the constitutional interdict of local or special laws. The question whether any particular statute is local or special must be determined, not upon its compliance with a legislative classification but upon whether, having regard to the char acter of the legislation and the limitation upon it contained in the act, the statute is or is not a general law, as defined by the courts. The supreme court of the United States has likewise proceeded upon this principle in deciding upon the validity of statutes under the equality clause in the fourteenth amendment to the federal constitution. In Railroad Co. v. Ellis, 165 U. S. 150, 17 Sup. Ct. 255, the court held that there might be classification for the purpose of legislation, but that the mere fact of classification was not sufficient to relieve a statute from the reach of the equality clause of the fourteenth amendment, and that in all cases it must appear not merely that a classification has been made, but also that it is based upon some reasonable ground,—something which bears a just and proper relation to the attempted classification, and is not a mere arbitrary selection; and, in the application of that principle, the court set aside an act of state legislation, as in violation of the constitutional provision.

It must not be inferred from the language used in the opinions of the courts that the mere aggregation of individuals in a municipality is the actual basis on which a classification may legitimately rest. The constitutional prescription relates to the regulation of the internal affairs of towns and counties, without regard to population, and it applies as well to the lesser as to the greater municipalities in this state. In re Haynes, 54 N. J. Law, 28, 22 Atl. 923. Chief Justice Beasley, in discussing this subject, speaking of an act establishing a board of street and water commissioners in cities of the first class, observed that "it is true that the classification of cities is made on the basis of population, but this term, in this connection, included not only the number of the inhabitants, but also municipal magnitude in all respects; and a city largely populous must necessarily have a great stretch of streets and a water supply of immense volume. It is the largeness of such necessities, incident to a great population, that differentiates cities of the first class from cities of the other classes; and the consequence is that all legislation regulative of such necessities, on account of their magnitude, is obviously constitutional, as it is germane to the basis of municipal classification. If, therefore, municipal population, when it is large, does not require a different kind of machinery from that which is suitable to a small population, then it would be plain that the position of the counsel of the relators [that the act was special and local] would be impregnable." The chief justice reiterates the same views in Matheson v. Caminade, 55 N. J. Law, 4, 25 Atl. 933.

In Warner v. Hoagland, 51 N. J. Law, 62, 16 Atl. 166, a statute relating to streets, avenues, parks, and sewers, in which cities of the first class were excepted, was sustained on the ground that the extent and cost of local improvements necessary to the growth and prosperity of the excepted cities require efficient and expensive city governments, and that the affairs of these municipalities could not be managed by local governments adapted to cities of the population and insulated position of the smaller cities of the state. The same reasoning was adopted by the court in Randolph v. Wood, 49 N. J. Law, 85, 7 Atl. 286, and also in Mortland v. Christian, 52 N. J. Law, 538, 20 Atl. 673. The counsel of the plaintiff in error having relied considerably upon this case to sustain the present legislation, a statement of the grounds upon which that case was decided will be appropriate. The act then under consideration was one changing the membership and mode of election of the boards of freeholders in counties of the first class. In sustaining that law as not being local and special, the learned judge who delivered the opinion of this court said: "No one familiar with the construction and operation of boards of freeholders in the several counties in this state can fail to see that by this scheme an entirely new and distinct system of administrative machinery is provided, one more compact in form, with greater executive possibilities, making greater demands upon the time and services of the members, for which increased pay is provided, together with an increase of individual responsibility, with which is coupled a substantial security to the public by means of bonds with heavy penalties. That such a system is not applicable to the smaller counties is not less evident than that the existence of such machinery would be an unnecessary and disastrous burden upon their finances. Whether the largest counties do require boards of such increased efficiency is not for us to decide. If they do, it is evidently in respect to matters growing out of excess of population. The legislature, in whom the determination of these questions is vested by the constitution, has decided that counties of the first class do require a change of the character indicated by this act, which changes, from the considerations just mentioned, are inappropriate to the smaller counties for the same reasons which constitute their appropriateness to the larger ones. Such being the relation borne by the provisions of this act to the various counties of this state, viewed from the standpoint of population, the act in question must...