In re Haynes

22 A. 923, 54 N.J.L. 6, 25 Vroom 6, 1891 N.J. Sup. Ct. LEXIS 30

• Court: Supreme Court of New Jersey
• Decided: November 15, 1891
• Status: Published

Opinion

The opinion of the court was delivered by

Beasley, Chief Justice.

The present proceeding stands before the court in this wise: Mr. Haynes, as the mayor of Newark, presented to the Chief Justice of this court a petition, stating, inter alia, that in pursuance of the act of the 28tli of March, 1891, he had appointed in Newark a board of street and water commissioners, and that a controversy touching the title of the officers so appointed existed, and he therefore prayed that a special term of this court should be held for the purpose of hearing and deciding, in a summary way, that litigation in conformity with the twenty-fifth and twenty-sixth sections of the statute just mentioned. In compliance with this application an order was made for the parties tointerplead, and thereupon certain persons, who were the old incumbents of the offices, relating to the streets and the water-supply, exhibited their informations, averring that the new appointees of the mayor had intruded into and had usurped said offices,, and that the act whereby such wrong was attempted to. be justified was unconstitutional and void. These allegations having been traversed, it is upon such pleadings and certain admitted facts that the matter has been heard. ■

The controversy thus presented gives rise to but a single question, and that is whether the act thus put in issue is constitutional or not.

Inasmuch as none of the exceptions taken to this statute has, in my opinion, any solidity whatever, my exposition of the views of the court upon the subject will be as brief as is consistent with perspicuity.

The first point of counsel’s criticism related to the title of the act thus challenged. That title was as follows, viz.-' “An act concerning cities of the first class in this state, and constituting municipal boards of street and water commissioners, and defining the powers and duties of such municipal boards, and relating to the municipal affairs and departments of such cities placed under the control and management of such boards, and providing for the maintenance of the same.”

It was insisted that this title is insufficient, as it does not fulfil the constitutional requirement “ that every law shall embrace one object and that shall be expressed in the title.”

That this proposition is not sustainable it seems to me will be at once apparent to every unprepossessed mind. The entire object of the act is the constitution of municipal boards of street and water commissioners in cities of, the first class, and this title, in express terms, says that such is the legislative purpose. The superadditions following this plain declaration of the statutory object, as that it is an act “ defining the powers and duties” of such boards, and relating to affairs and departments placed under their control, the worst that can be said of these is that they are unnecessary. They may be, and probably are, redundencies, for if boards of the kind specified are to be erected, necessarily the power of such boards must be defined, and the law must relate to the affairs entrusted to their management. But by the presence of such superfluities the plain expression of the object of the act is not in anywise perplexed, as such superfluities harmonize in all things with such expression.

Consequently, in my opinion, this exception is without foundation either in law or reason. It has always been held that these statutory titles, with regard to their construction, are to be liberally treated, so as to validate the law to which they appertain, if such course be reasonably practicable. In such a connection hypercriticism is utterly out of place, the only requirement, being that the title of the statute shall express its object in a general way so as to be intelligible to the ordinary reader. This is the rule when there is obscurity, but this rule need not be invoked on this occasion, for this statutory superscription is, on the point in question, both explicit and unambiguous.

A second objection of the same strain was that this act is out of harmony with the fourth paragraph of section 7 of the fourth article of the constitution. The clause thus referred to is in these words : “No act shall be passed that shall provide that any existing laws, or any part thereof, shall be made or deemed a part of the act, or which shall enact that any existing law, or any part thereof, shall be applicable, except by inserting it in any such act.”

This clause was interpreted by counsel in its strictly literal meaning, and judicial views expressed by courts of other states were referred to justifying, as it was thought, such a course. Such decisions, it may be said in passing, could not have with us the accustomed force of judicial determination, as they are mere translations of constitutional language which is not identical with the terms of the constitutional clause now in question. It may be further said, also, in passing, that to read this clause in the sense ascribed to- it by counsel would render its judicial application replete with difficulties, .•and that to give it such force would invalidate many of our legislative enactments. In my opinion, a very large body of the supplementary statutes now existent would, by the adoption of such a rule of exposition, be illegalized. That this unreasonable operation is not to be permitted to this constitutional prohibition, in view of its obvious purpose, was recently adjudged by the Supreme Court in the case of Campbell v. The Board of Pharmacy, 16 Vroom 241.

But it is not necessary to pursue this subject further, for the reason that it does not belong to the present inquiry.

In the argument before the court in behalf of the relators, the constitutional clause just recited was thus applied.

The act of 1891, now sub judice, directs ‘the respective mayors of cities of the first class to appoint five residents to be known as street and water commissioners, and it provides, among other things, that such commissioners shall have all the powers and capacities theretofore vested by existing legislation in boards or officers having charge and control over the streets or the water supply of such respective cities. At the passage of this act the streets of Newark were cared for 'by a street commissioner and the water supply by an aque•duct board, each of these officers being vested with extensive powers. Consequently, it appears that the act is plain to this extent: it clothes these appointees of the mayor with all the statutory authority that had been previously possessed by the officials whom they had superseded.

The position taken against this scheme by counsel was “that the powers and duties of these new municipal boards are not defined except by reference to existing laws,” and for ■that purpose making such existing laws applicable, and which It was contended was inhibited by the constitutional provision •above quoted.

But, most assuredly, it is a conclusive answer to this argument to refer to the fact that this subject is res adjudícala in ■this state. This legislation in the respect now in question is identical with that which was sanctioned by the Court of Errors in In re Cleveland, Mayor, &c., reported in 23 Vroom, for the statute tested on that occasion, in express terms, provided that “ every power, &c., now existing in any office, &.c.,. shall be performed by the board of street and water commissioners in this act provided for.” It seems obvious that this-decision, entirely authoritative, is applicable in every respect in the present instance.

And, indeed, considering the matter independently of authority and looking at it solely in the light of legal principles, it would appear to be plain that this clause of the constitution can have no effect in any case of the class to which the one in hand belongs. It can never be applicable where there is a mere substitution of one officer in the place of another. Official authority resides in the office and not in the incumbent, the consequence being that a change in the mode of appointment to such office does not affect -its powers, and the new appointee will become possessed of the right to exercise all such powers by the sheer force of his incumbency and without any legislative declaration to that effect. When an act provided that.the justices of this court should, ex-offieio-, become members of the Orphans’ Court, Common Pleas and Quarter Sessions, it was not deemed necessary to define the powers they thereby acquired. It was never doubted that each Supreme.Court justice became at once invested with all the prerogatives exercisible by any member of the respective courts just designated. If a statute were to be enacted requiring each mayor in each city of the state to be chosen by its common council, no one, it is presumed, would deny that every of such officers would, by mere intendment of law, be-entitled to exercise all the authorities theretofore resident in such offices. In the instance before us the incumbents of the offices appertaining to the streets and the water supply were,, by legislative decree, discharged and the mayor’s appointees, took their place, and by force of that substitution such appointees became entitled to perform every function and to-exercise every power that had been legally performed or exercised by their predecessors. In such a transaction the offices themselves undergo no change; what is changed is the method of the appointment of their incumbents.

From this view it necessarily follows that this legislative grant to these new officials of the power which had been possessed by their predecessors, is altogether useless and nugatory ; that the same state of affairs would exist without it as with it, and from this conclusion it also necessarily follows that the presence of such a legislative grant in the statute under consideration cannot invalidate the statute. The statutory provision under criticism effects nothing, the result being that it cannot be said to do what this constitutional clause prohibits — that is, to enact that any existing “ law shall be applicable ” to the act in which it is found.

It has not seemed to the court that there is even a semblance of substance in this objection.

With respect to certain other powers vested in these commissioners, this court at the present time has no concern. Such grants of power have been elaborately criticised in the arguments of counsel, but such criticism, it is deemed, has no pertinence on this occasion. For if it were granted that all these complimentary powers — such as the prerogative to enact city ordinances within a certain sphere — were absolutely nugatory and void, such concession could not, even in the most distant degree, have any effect on the judicial examination now in hand. On this information the only question to-be considered and to be decided is, whether these respondents have the right to officially supersede these relators, and to this extent, as we have seen, such right is thought to. be unquestionable, and upon reaching that result the present inquiry is concluded. These grants of power here referred to are easily separable from those authorities that inhere in these respondents, by force of their substitution, in the place of superseded officers, and consequently they can be eliminated without impairing or in anywise diminishing this statute in its present application. Such excision would take place by the operation of general legal rules, and there is express provision for such-•a course of treatment in one of the sections of the enactment in question.

There is still another objection which it may be proper to notice particularly, as it occupied a prominent place in the arguments of counsel. It is this, that1 the statute under consideration- was of a purely local character and is on that account unconstitutional.

The reasoning on this subject ran in this line, viz., that while cities could be classified on the footing of population, nevertheless such fact did not authorize legislation appertaining to streets and water supply, as such necessities are common to all the municipalities of the state, be they great or small.

The fallacy of this argument proceeds from a misconception of the subject of the statute to which it relates. It is true that streets and water supplies are matters common to all cities, no matter what their grade, but this legislation does not attempt to deal with these things in this wide point of view. What it deals with is exclusively the machinery by which such interests are to be regulated. If, therefore, municipal population, when it is large, does not reasonably 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 just referred to would be impregnable. But such, we think, is not .the fact. It is true that the classification of our cities is made on the basis of population, but this- term- in this connection connotes 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. In a small city the supervision and control of the streets and of the water supply may well be, as it usually has been, left in the hands of those entrusted to administer generally its affairs, but all experience-has shown that such matters in large cities can be properly-managed only by independent boards duly organized for the purpose, and this is little more than saying that the swaddling-bands of the infant are not the fit habiliments of the man. "We have found no force-in the proposition that, with respect to the machinery requisite to the management of their streets and water, the small and large cities of the state must be similarly organized.

Our conclusion is that these commissioners appointed by the mayor, under the act of 1891, are legally in office.

Let judgment be entered accordingly.