58 N.J.L. 372 | N.J. | 1895
The opinion of the court was delivered by
This information exhibited by the attorney-general directly questions the right of the mayor and council of the borough of Anglesea to exercise the franchises of a municipal corporation of this state. The plea to which a demurrer has been filed brought before the Supreme Court— first, the apparent existence of any legislative authority for the corporate life of the defendant; and, second, the constitutionality of such legislation, if any such were apparently part of the statute law of the state.
The legislation concerned is—first, “An act for the formation and government of boroughs,’’ approved March 12th, 1890 (Pamph. L.,p. 58), under which the defendant claims its incorporation; and, second, “An act to repeal an act entitled ‘An act for the formation and government of boroughs,’ ” approved March 12th, 1890 (Pamph. L. 1891, p. 11), by
Where part of a statute is unconstitutional, the remaining part may stand only when it will operate in accordance with the apparent legislative intention, and a provision that is unconstitutional and ineffectual as a law is yet to be regarded upon the question of the intention of the lawmaker. In the present case, there is nothing to warrant the belief that the legislature would have passed the residue of this statute as it will stand after the excision of the proviso; indeed, the contrary is perfectly obvious. The effect, therefore, of holding the proviso bad would not be to repeal the act of 1890, but to eliminate from the statute-book the repealer itself. Pursue, therefore, what course we may, we must ultimately consider whether the act of 1890 is a valid expression of legislative power. The statute in question purports to he a general act, conferring extensive governmental powers, including taxation, public improvement, the granting of licenses and all the machinery of a modern municipality.- The governmental scheme thus tendered may become operative only when the following conditions, and all of them, are in - conjunction. The area to be included must not exceed two square miles, and must have a real taxable value of at least $100,000, provided “during any portion of the year a population of not less than two hundred ” resides within such area.
I confess my inability to see how such a requirement can have any more to do with investing local electors with the power of municipal franchise than if the fortuitous condition were that two hundred cattle must graze on the meadows or two hundred pine trees stand in the forest.
The classification adopted has no real basis; it is at best a mere figment, and the legislation founded thereon falls under the constitutional interdict as construed by this court, viz., that distinctions that do not arise from substantial differences constitute no ground of support for legislation. Hammer v. State, 15 Vroom 667.
The judgment of the Supreme Court should be reversed.
For affirmance—None.
For reversal—The Chancellor, Chief Justice, Garrison, Gummere, Ludlow. Mague, Bogert. Brown, Sims, Smith, Talman. 11.