84 N.J.L. 54 | N.J. | 1913
The opinion of the court was delivered by
The relators claim title to the office of chosen freeholders of Union county, under the act of 1902, amended
The county of Union is a county of the second class, that is, a county with a population of not less than fifty thousand nor more than three hundred thousand inhabitants. Pamph. L. 1911, p. 19. By the amendment of 1908 a proviso was inserted in section 1. of the act of 1902, in the following language: “Provided, however, this act shall not apply to counties of the second class.'''’ Obviously, if this proviso is to control and the statute with the proviso was within the power of the legislature to enact, the adoption of the act of 1902 in 1911 was without warrant of law. The relators advanced two claims by way of attack upon the proviso. They say — first, that the proviso is repugnant to the rest of the section and must be.rejected, and second, that if the proviso is sustained the act then becomes unconstitutional.
We think the first contention is untenable. /The proviso is indeed repugnant to the rest of the section, but the question is whether the proviso or the other language is to prevail. A distinction is made in the eases between a saving clause repugnant to the purview of the act, and a repugnant proviso. Townsend v. Brown, 4 Zab. 80; Clark Thread Co. v. Kearny Township, 26 Vroom 50. In the first-cited case Mr. Chief Justice Green said: “The rule has long been established, that if a proviso in a statute be directly contrary to the purview of the statute the proviso is good, and not the purview, because it speaks the later intention of the legislature.” The rule was recognized by Mr. Justice Van Syekel, in the last-cited case, although he quoted from Sedgwick and Chancellor Kent as to its arbitrary character. If we take only the words of the act, the clause forbidding its application to second-class counties is undoubtedly a proviso; it is so denominated by the legislature itself, and upon the rule of law above stated this clause would nullify the preceding portion of the
The next question is whether the effect of holding the proviso to control rather than the purview of the section, is to make the amendment of 1908 unconstitutional. The argument is that there is no rational basis for a distinction between the number of freeholders and the cons tit utency that elects them in counties having less than fifty thousand or more than two hundred thousand inhabitants on the one hand, and counties having between fifty thousand and two hundred thousand on the other hand. This question, however, is set at rest by the decision of the Court of Errors and Appeals. Attorney-General v. McKelvey, 49 Vroom 621. It was there held, upon the authority of the earlier cases, that a law is general within the constitutional provision as to towns and counties, although it embraces only a class formed on the basis of population according to the discretion of the legislature, provided that the law deals merely with the structure and machinery of government, and the class does not appear to have been formed illusively; and a classification for that purpose will not be deemed illusive merely because the effect is to make the legislation applicable to municipalities of a certain size only. In the present case the legislation relates to the structure and machinery of government. It is applicable to all counties that may at any time possess the specified population. It was therefore entirely within the discretion of the legislature whether the act should apply to first-class counties and third-class counties, and not apply to second-class counties. The McKelvey case was itself a case of an intermediate class. Under the rule of that ease it would clearly have been permissible for the legislature to provide in a separate act for the organization of the board of freeholders in counties of the first and third class. This is all they have done by excluding second-class counties from the operation of the act of 1908.
The legislature itself seems to have realized the difficulty with the attempted adoption of the act of 1902 by the referendum in Union and other counties in 1911, and in 1912 and 1913 several attempts were made to validate these elections. We pass over the very serious question that the case presents whether the so-called election was in fact an election or a mere voluntary attempt of a considerable number of voters to ■hold an election. The difficulty, of course, is that an election must be held under authority of law in order to bind the voters who either take no part at all or fail to vote upon the
Chapter 181, Pamph. L. 1912, p. 278, applies only to elections for the acceptance or rejection of an act to reorganize boards of chosen freeholders of the several counties of this state, reducing the membership thereof, and fixing the salaries, and providing for the election and terms of office of the members, and also for the appointment and terms of officers appointed by such boards in conformity with the provision of section 7 of the act. If we disregard as too technical the fact that the voters of Union county did not vote for the acceptance of an act with that title, but voted only for the adoption of the act reducing the number of members of the board of chosen freeholders, approved March 26th, 1902, we should still find it impossible to hold that chapter 181 of the laws of 1912 was effective, since the only election that it attempts to validate is one held in conformity with the provisions of section 7. That section provides that there shall be printed on each ballot the proposition, “Eor the law reducing the number of freeholders,” and “Against the law reducing the number of freeholders.” This is obviously a different question from the one submitted in Union county, which was: “Shall the act reducing the number of members of the board of chosen freeholders, approved March 26th, 1902, be adopted?”
Chapter 314 of the laws of 1912 (Pamph. L., p. 553) is open to the same objection. It validates elections where the act of 1902 and the supplements and amendments thereto had been submitted to the legal voters of the county, and the majority of the votes cast at such election was in favor of the adoption thereof. Here it was the already superseded act of 1902 alone for which they voted. Ho opportunity was afforded them to vote upon the supplements or amendments thereto. Moreover, chapter 314 seems intended to cure only irregularities in the submission of the question. It is much more than a mere irregularity' yvhen the voters are given no opportunity
This legislation of 1912 was as unsatisfactory to the legislature as it is to us, and three acts have been passed in 1913. Chapter 2 applies only to elections theretofore held and attempts to cure only defects in the notice of election, in the calling of the same, and in the method of manner of submission or certification thereof.
Chapter 4 applies only to freeholders elected pursuant to the provisions of chapter 355 of the laws of 1912. Eor reasons already stated, this act is inapplicable to Union county. The relators could not have been elected pursuant to the provisions of that act, since it required a referendum which had never been had in that county for that act.
Chapter 5 validates all- elections heretofore held for the adoption of the provisions of any law for the reduction of the number of members of the board of freeholders, notwithstand
As to those of the defendants whose terms would otherwise have expired, they hold over because no successors have been chosen and qualified. Comp. Stat., p. 3489, pl. 130; Wright v. Campbell, 45 Vroom 609. The other defendants hold to the ends of their terms. The defendants are entitled to judgment.