In Re the Petition Filed by the Freeholders of Hudson County

143 A. 526, 105 N.J.L. 57, 1928 N.J. Sup. Ct. LEXIS 458

• Court: Supreme Court of New Jersey
• Decided: October 25, 1928
• Status: Published

Opinions

The opinion of the court was delivered by

Kalisch, J.

The petition filed by the petitioner in the present proceeding asks this court, by virtue of sections 11 and 13 of the Declaratory Judgment act (Pamph. L. 1924, pp. 313, 314), to declare unconstitutional an act entitled “A supplement to an act entitled ‘An act to regulate elections’ (Eevision of 1920), passed May 5th, one thousand nine hundred and twenty, and the amendments thereof and supplements thereto,” which supplement was passed October 9th, 1928, and was to take effect immediately.

There is grave doubt as to the applicability of the declaratory judgment statute to a situation where the end sought to be attained concerns the invoking of the power of this court to declare a legislative enactment unconstitutional by means of an advisory opinion, or by a judgment declaring what the prospective rights of individuals are under the assailed statute, in the absence of a real controversy between them.

Tersely stated, the claim of counsel of petitioner is, that the impugned statute brought before this court for review deprives and tends to deprive a voter, who is qualified to vote, from exercising his constitutional right to vote.

In view of the fact that the public is vitally interested and affected by the statute and an election is near at hand, an urgency has arisen for a speedy pronouncement by this court as to the validity of the act, and as counsel of the respective parties have been heard upon the merits of the case and submitted the same to the court, sitting en banc, for determination, we have suspended consideration of the question as to the legal propriety of the procedural form in which the matter is presented.

To sustain the petitioner’s contention, that the statute is unconstitutional, its counsel arguOs, first, that the statute is unconstitutional in that it deprives and tends to deprive a legally qualified voter from voting; secondly, that the statute in its requirements is unreasonable, and therefore void; thirdly, that the statute is in violation of article 4, section 7, paragraph 4, in that the statute violates the constitutional provision that no general law shall embrace any provisions of a private, special or local character. We think that none of these contentions rests upon a sound basis.

Yow, as to the first contention, that the statute is unconstitutional in that it deprives and tends to deprive a legally qualified voter from voting.

Article 2, paragraph 1 of the state constitution declares: “Every male citizen of the United States, of the age of twenty-one years, who shall have been a resident of this state one year, and of the county in which he claims his vote five months next before the election, shall be entitled to vote for all officers that are now, or hereafter may be elected by the people.”

In Ransom v. Black, 54 N. J. L. 446 (at p. 449), Mr. Justice Eeed, in speaking on this constitutional declaration, says: “The right conferred is the right to vote for all elective offices. As to when, where and how the voting is to take place, is left to the legislature. Without the intervention of the legislature the privilege conferred by the constitution would be fruitless. A wide field therefore is left open for the exercise of legislative discretion. The days upon which elections are to be held, the hours of the day or night during which, or between which, votes shall be received must be determined by the legislature. So, too, the places where each election is to be held, the size of the voting precinct, and whether the size shall be measured by territory or population, must also be settled by direct or delegated legislative authority. The widest field for the exercise of legislative wisdom and discussion is in adjusting the method by which the sentiments of the voter shall be obtained and canvassed.” And Mr. Justice Dixon, in the same case (at p. 461), said: “It must b'e conceded that legislation is necessary to determine who are legal voters, to provide for them the means of voting, to prevent all others from voting, and to ascertain the result of the vote. All legislation conducive to these ends is therefore permissible. It is also clear that by a vote is intended the free and honest expression of the voters’ choice, and hence statutes tending to preserve the voter from coercion or immoral influences are legitimate, provided they do not impair other rights. Outside of these purposes I see no room for legislative interference with the right of suffrage.”

The views expressed by this able jurist were affirmed by the Court of Errors and Appeals, the affirmance being reported in 65 N. J. L. 688.

It is quite obvious from this wise judicial declaration, acquiesced in by the Court of Errors and Appeals, that the legislature may, in order to insure honest elections, pass laws to prevent those not entitled to vote from voting. And this is precisely the very object at which the statute in question is aimed. ■

The reasoning which is stressed by counsel of petitioner, and which reasoning concludes that the statute abridges the constitutional right of a legally qualified voter to vote, is the result of a fallacious assumption of premises which do not exist in the legislation assailed. The aim of the statute is to prevent one who is ineligible to vote from voting.

In order to constitute a person eligible to vote, he or sh'e must have attained the age of twenty-one years, and be a citizen of the United States, and a resident of this state for one year, and a resident of the county five months preceding the date of election, and in addition to this constitutional qualification he or she must register in the election district where his or her place of residence is, &c.

In failing to comply with the requirements alluded to, no right to vote has been acquired. There are many provisions in the Election act relating to registration which provide for the correction of mistakes and of omissions, so that those legally qualified to vote shall not be deprived of that right.

The statute, sub judice, provides, in substance, for an investigation of the registry list by the superintendent of elections, prior to the holding of any election; and whenever as a result of such investigation or during the course thereof, he shall have ascertained that persons whose names appear on the registry list have been found to be either dead, or to have moved from the place of registry, or have been found to be registered from some place other than the actual residence of the persons whose name appears upon said registry, or are otherwise not entitled to vote at such election from the place •of registry of such person, or not qualified to vote at such election, that then it shall be the duty of the superintendent to serve an order in writing, signed by him, upon the proper district board of registry and election, ordering such said district board to refuse to allow said person or persons to vote at such election, provided that before signing any such order the superintendent shall give notice to the person to be affected, at least two entire days of his, the superintendent’s, proposed action, and that no such order shall be signed by the superintendent subsequent to the Tuesday preceding such election.

It is quite clear that the statute is directed at those persons who are unlawfully registered, and, therefore, are not qualified to vote.

On what sound theory this regulation, to protect the purity of the ballot box can be said to be in contravention of any constitutional right of a lawfully qualified voter has not been revealed to us. It needs no argument to establish that if an unqualified voter casts his ballot, it has the effect to impair the value of the vote of a duly qualified voter. It cannot, therefore, be logically said because the statute seeks to prevent the unqualified voter from voting at an election that such legislative action is an interference with the constitutional right of a voter, duly qualified to vote.

A qualified constitutional voter is entitled that his or her vote shall have the effect which the law intended it should have, and this would not be the case unless the ballot box is strictly guarded against illegal voting.

Erom an examination of the election law relating to registration it is difficult to perceive how a duly qualified voter is deprived from voting in any case where he has complied with the regulations prescribed by the legislature concerning the exercise of that right. Of course, if a qualified voter, under the constitution, neglects to obey the prescribed legislative requirements necessary to qualify him as a voter, he has no one to blame but himself if he loses his right to vote. It is his own act which deprives him from' exercising the voting privilege. It is quite clear from the decisions of the courts of this state that though an individual falls within the class of those entitled to vote by virtue of the constitutional declaration, nevertheless, the manner in which and how he shall become entitled to exercise the right extended to him or her, is left to the sound discretion and wisdom of the lawmaking power of this state. Ransom v. Black, supra.

It is further contended that the statute, sub judice, is unconstitutional> because it invests the superintendent of elections with the exercise of judicial functions which can only be properly conferred upon and exercised by a judicial tribunal. There can be no reasonably debatable question relative to the character of the functions conferred upon the superintendent of elections. The functions are gmsi-judicial. The superintendent is required first to investigate whether the person registered is properly upon the list of prospective voters, and after he has investigated, he is required to determine upon the information or proof before him whether or not the registered individual is a duly qualified voter in the district of the registry.

It seems to us to be wholly unimportant whether or not the function conferred upon the superintendent is of a quasi- judicial or of a ministerial nature. We think"the statute invests the superintendent with both functions. Moreover, the same sort of objection could be leveled against the constitutionality of the -statutes conferring judicial power upon the board of utility commissioners, boards of health, the state superintendent of public schools and others, who are invested with the performance of gwsi-judieial duties as well as ministerial.

We have not been referred to any provision of the constitution which either expressly or impliedly forbids the conferring of such powers upon state or local boards, or individuals. In fact, there is no such inhibition.

On behalf of the petitioner, it has been further urged that the statute, under consideration, is unconstitutional in that it fails to prescribe, in terms, what the notice required to be given to a prospective voter who is charged with being unlawfully registered shall contain. It is claimed that this legislative omission deprives the registered voter, whose name is proposed to be stricken from the list of duly qualified voters, of due process of law. The contention is, that the legislature should have prescribed what the notice should contain, namely, the time when, and the place where, and before whom, he or she shall appear, &c., in order that the challenged voter may know where and to whom to answer. The puerility of this, contention is palpable.

The character of the notice which the superintendent of election gives is not before us. It may be fairly assumed that the notice will contain the information to the voter that he or she is improperly registered and that he or she will be barred from voting.

The voter has two entire days in which to apply to the superintendent of elections at any reasonable hour and ask that his or her name be restored to the list, by showing that he or she is properly registered and is a duly qualified voter in the district.

The notice operates practically as a rule to show cause and gives an opportunity for the person against whom the rule is directed to answer. Furthermore, the statute provides for an appeal from the decision of the superintendent of elections to the County Court of Common Pleas, which tribunal, after a hearing, has the power to direct, if the evidence warrants it, the name stricken from the list of registered voters to be restored.

An examination of our statutes relating to civil and criminal procedure from their earliest history fails to disclose that the legislature has ever undertaken in any enactment to set out, where it provides for the giving of a notice, what the contents of such notice shall be, unless there was some special reason for so doing.

It is fair to presume that the notice required to be given by the statute under consideration will contain the information that the registered voter will be barred from voting upon the order of the superintendent of elections because the voter is unlawfully registered.

The person to whom the notice is sent is presumed to know the law, and cannot shield himself by the plea that he was ignorant of his rights. Whether a notice required to be given by the statute is such as was within the contemplation of the legislature, is a matter which cannot be determined until a question arises where the sufficiency of the notice is drawn into question.

The further contention of counsel of petitioner is, that the statute under consideration is so unreasonable as to render it unconstitutional. This is an entirely novel proposition. It finds no support from the well-considered cases in this and sister states. We have not been referred to any -provision of the constitution which puts a check upon the exercise of legislative wisdom and discretion in the enactment of laws. The consensus of judicial opinion, not only in this state, but in sister states, is to the effect that the reasonableness or unreasonableness of a legislative enactment is not subject to judicial review or control.

The legislative body is the sole judge of the reasonableness of its enactment. The court is wholly without power to nullify a legislative act because of its being unreasonable. To attempt to do so would be to encroach upon the legislative prerogative under the constitution. In Douglass v. Chosen Freeholders of Essex County, 38 N. J. L. 214, 216, Chief Justice Beasley, speaking for the Supreme Court, said: “Where that which is directed to be done is within the sphere of legislation, and the terms used clearly express the intent, all reasoning derived from the supposed inconvenience,'or even absurdity of the result is out of place. It is no province of the courts to supervise legislation, and keep it within the bounds of propriety and common sense, so that even if in this case it could be demonstrated that the regulation in question was incommodious, or even hurtful, an appeal for relief to the judicial power would be utterly in vain.” This view has been repeatedly adopted in the following eases: Bullock v. Briggs, 78 N. J. L. 63; Island Heights Co. v. Brooks (Court of Errors and Appeals), 88 Id. 613; In re City of Passaic, 94 Id. 386; Weinstein v. Sheer (Court of Errors and Appeals), 98 Id. 514; Doherty v. Spitznagle, 139 Atl. Rep. 426.

Article 3, paragraph 1 of the state constitution ¿Laclares: “The powers of the government shall be divided into three distinct departments — the legislative, executive and judicial; and no person or persons belonging to-or constituting one of these departments shall exercise any of the powers properly belonging to either of the others, except as herein expressly provided.” The judicial power, therefore, cannot constitutionally enter the legislative domain and function as censor of the reasonableness or wisdom of legislative enactments.

Lastly, it is contended that the act is unconstitutional in that it violates the constitutional provision that no general law shall embrace any provision of a private, special or local character. This contention is builded upon the circumstance that the statute, under consideration, applies only to Hudson and Essex counties. There is no merit in this.

Essex and Hudson are counties of the first class. The legislation is peculiarly applicable to those counties. A statute is not tainted with the vice of special legislation because the regulations therein are limited exclusively to two counties of the state. McDonald v. Board of Chosen Freeholders of Hudson County, 98 N. J. L. 384; McDonald v. Board of Chosen Freeholders of Hudson County (Court of Errors and Appeals), 99 Id. 393.

The petition is dismissed.