Board of Chosen Freeholders v. Stevenson

46 N.J.L. 173 | N.J. | 1884

Lead Opinion

Van Syckel, J.

An act was passed March 12th, 1880,. entitled “An act to provide for the payment of fixed annual salaries to the several prosecutors of the pleas of this state.” The first section provides that in eight counties therein named,, of which Passaic is one, .the prosecutors of the pleas shall receive fixed annual salaries instead of fees. The salaries given vary in amount, the highest being $7000 and the lowest $400. Pamph. L. 1880, j). 321.

At the passage of this act special laws existed, which had been enacted from time to time, providing for salaries instead of fees to the several prosecutors of all the other counties. The salaries fixed by these special laws also varied in amount.

The third section of the act of March 12th, 1880, provides- “ that the salaries of the prosecutors of the pleas in the counties not therein specifically named, and which were theretofore-fixed by special acts, shall be continued as thus established.” Stevenson was appointed prosecutor of Passaic after the passage of this act, and if it is constitutional it regulates his compensation.

The first question involved is whether this is a special and local law within the meaning of paragraph 11, section 7, of article IV. of the constitution of this state.

The effect of the act is to abolish the fee system in the whole state, and in this respect it is general in its operation. But it was manifestly the intention of the legislature that fixed salaries should be substituted for the fees swept away, and therefore, unless the substitution is legally made, the purpose of the legislature would not be effected by enforcing it, and the entire act must fall. The test of validity is whether the act is-local in respect to the fixed salaries established by it. To make a law general it must have a uniform operation upon some general principle applicable to the subject. Thomas v. Board of Canvassers, 5 Ind. 4.

A law which does not operate equally on all of the class to which it relates, but creates preferences and establishes inequalities, is not a general law. Van Riper v. Parsons, 11 Vroom 1. The salaries fixed by this law are governed by no general rule, according to population or service rendered. It is arbitrary, and creates the most glaring inequalities. The salary for Passaic, with a population of sixty-eight thousand, is $2000, while that for Union, with a population of fifty-five thousand, is $3000, and $4000 for Camden with a population of sixty-two thousand.

The constitutional amendment was designed to repress such preferences, and to secure uniformity in legislation. The grouping together in a single act of a number of special- or local laws does not constitute a general law. This legislation is not general in its operation and effect, and is as clearly within the constitutional prohibition as if eight several acts had been passed, each applying to one of the counties named in the act of March, 1880. It is in evasion of and not in conformity with the requirement of the fundamental law. Woodruff v. Freeholders, 13 Vroom 533.

This law, being special and local, can it be adjudged to be void for failure to comply with the amendment to the constitution which provides that no private, special, or local bill shall be passed unless public notice of the intention to apply therefor, and of the general object thereof, shall have be.en previously given ? This amendment further provides that the legislature, at the next session after the adoption thereof, and from time to time thereafter, shall prescribe the time and mode of giving such notice, the evidence thereof, and how such evidence shall be preserved. Prior to the adoption of this amendment it had been declared by the Supreme Court of this state in Pangborn v. Young, 3 Vroom 29, that an enrolled statute of this state carries within itself conclusive evidence of its own authenticity. The provisions of the constitution then in force, prescribing the mode of legislative proceeding in the enactment of statutes, were that all bills should be read three times in each house before the passage thereof; that no bill or joint resolution should pass unless a majority of all the members of each house were personally present, agreeing thereto; that the yeas and nays of the members voting on such final passage be entered on the journal which each house is directed to keep of its proceedings and from time to time to publish.

In the case cited, the Chief Justice, in a very able opinion in which I' fully concur, held that the minutes of the two houses, or either of them, although kept under the requirement of the constitution, could not be received to show that the law as actually voted on and passed, and approved by the governor, was variant from that filed in the office of the secretary of state. The extremely uncertain character of the evidence furnished by the journals was discussed by the court in reaching its conclusion that the mandates of the constitution prescribing the mode of legislative procedure were addressed to the legislative branch of the government alone, and that judicial inquiry could not go behind the sanctions which the legislature had provided for the authentication of its acts.

Without such journals it would be impossible for legislators to know the situation of the vast number of bills before them. The inference, therefore, to be drawn from the injunction to keep a journal is that it is intended for the information of the legislative body alone, and not for the perpetuation of testimony to be used in judicial investigation.

After this decision had been promulgated the constitutional amendment now involved was drafted. It was agreed to by two successive legislatures, canvassed before the people, and adopted by popular vote. It must be presumed to have been carefully drawn to effectuate a well-considered object. The members of the commission which framed it had before them the then existing clauses of the constitution, which have been adverted to, and well knew the interpretation they had received. If they had intended that the legislature should be the final arbiter, that end would have been attained under the construction adopted in Pangborn v. Young, by providing that notice should be given and that the legislature should prescribe the time and place of giving notice.

The superadded words in an instrument subjected to the most careful consideration of many legal minds, and so deliberately adopted as a constitutional amendment, must be presumed to have been used for a purpose which, without them, would not have been expressed.

The injunction in the amendment is that at the next session of the legislature after its adoption the legislature shall not only prescribe the time and mode of giving notice, but what shall be the evidence thereof and how such evidenc.e shall be preserved. Some reasonable meaning must be ascribed to this language; it cannot be rejected as surplusage.

The legislative body could have no use for such evidence after the bill has passed; nor can I conceive that it is one of the functions of a subsequent legislature to resolve itself into a court to try a question of fact in order to determine whether a prior legislature had kept within the constitutional restraints. If the fact of giving notice could not be thereafter challenged in the courts, the evidence, instead of being preserved, might as well be cast into the waste-basket. The only purpose for which it can reasonably be believed that the evidence is perpetuated is, that 'it may be used in a judicial investigation whether due notice has in fact been given.

There is no uncertain or doubtful implication in this respect. The preservation of the proof as evidence necessarily implies, in law, its competency and admissibility in courts of justice ; as clearly so, to the legal mind, as if it had been so expressed. Evidence required by the organic law to be preserved after the legislature has, in obedience to the constitutional mandate, perpetuated it, must have all the. qualities of evidence in its ordinary legal acceptation in the absence of words of exclusion and of express limitation to some specific purpose. Otherwise, after the law-maker has carefully preserved the evidence, it is not evidence, and thus the constitution and the law-maker have united in creating something which is nothing. In my judgment the intention is clearly expressed to vest in the judicial tribunals the power to arrest the operation of laws-passed, in the haste of legislation, without the requisite notice-

Such, I believe, was the almost universally-accepted interpretation of this amendment when it passed, and the legislature acting upon it at the first session after its adoption enacted the law now upon our statute-book for its enforcement.

It is possible that the legislature, by exercising its ingenuity, might prescribe such mode of proof as would render the right of review in the courts abortive, but constitutional guaranties are not to be construed upon the hypothesis that legislators will be astute to evade them. On the contrary, we-must ascribe to them the desire to enforce them in the most, beneficial manner.

Whether the legislative act passed in this instance, to effect the object of this amendment, is wisely framed to that end, it is not pertinent to consider. If it is not, the infirmity is-chargeable to the legislative act and not to the constitutional provision. I think it would not be difficult to devise a mode of preserving the evidence which would enable courts to adjudge, with as much certainty as is attainable in the conduct, of human affairs, whether notice, was duly given.

Under the statute passed by the legislature to enforce this amendment, (Rev., p. 1125,) the publication of an act in the Pamphlet Laws is prima- facie evidence that legal notice was given. The only counter-evidence in this case is the admission of the parties that no notice was given. Courts cannot act upon such admissions in determining the constitutionality of statutes. Facts may be admitted by parties to suits, but the law cannot be made or abrogated by agreement. Whether-this statute is law or not law can be adjudged only in the mode prescribed by the legislature; it cannot be declared to be law or not law at the option of litigants. Under a law properly framed, the courts will have the probative force of record evidence to guide them as to the question of notice,, and thereby all uncertainty will be eliminated.

But if the constitutional requirement as to notice had been observed, in my opinion it violates a further amendment forbid ding private, special or local laws which regulate the internal affairs of counties. Such internal affairs can be regulated only by general laws. This law attempts to fix the salary of the prosecutor of the pleas of Passaic county. It is true that the prosecutor represents the state in the administration of the criminal law, and while the administration of justice within a county may not properly be termed an internal affair of the county, the amount of compensation which public officers who administer the laws shall receive from the county treasury is an affair which concerns the county alone, and not the state. This statute does not affect the administration of justice in anywise ; it relates wholly to the salary which the county shall pay. Those who control the county finances are charged with the duty of raising the necessary funds to pay such salaries, and upon such laws depend the extent to which the county shall be burdened by taxation. In no respect can the internal affairs of a county be more materially regulated.

Laws relating to the mode of paying public officers by the-counties, and to the amount of compensation, regulate their internal affairs equally whether such officers' are engaged in administering justice or in the performance of other funetionswithin the county. It seems very clear that the compensation of officers of the latter class can be fixed only by general laws. The reason for applying a different rule to the former-class should be very clear.

The beneficial operation of this salutary constitutional provision will be greatly impaired by an interpretation which permits inequalities to any extent to be created throughout the state by special and local laws for the compensation of prosecutors of the pleas and judges of the Common Pleas of the several counties. Such a construction would withdraw from the people of the counties the protection of this amendment where it is most needed. The imposition of the salaries of these officers upon the county in one instance, and their payment in all other counties out of the state treasury, and ■the payment of salary of one justice of the Supreme Court by the counties in which he presides and of all others from the state treasury, would be extreme cases, but they serve to show how clearly the internal affairs of a county may be controlled and regulated by such laws.

If laws increasing or decreasing the annual expenses of a ■county are to be regarded as laws regulating its internal affairs, then surely the subject matter of this controversy must be governed by general and not by local laws. Such I take to be the correct interpretation of the constitution. The act under review is therefore of no validity.

The judgment below should be affirmed.

Mag-ie, J.

In my judgment the law in question, which .fixes amounts to be paid to prosecutors by particular counties, (which must be raised by taxation,) is obnoxious to the prohibition of the constitution against private, local or special laws regulating the internal affairs of counties. I concur in the views expressed in the prevailing opinion of Justice Van Syckel on this subject, and on that ground I vote to affirm.

Reed, J., and Parker, J., concurred in the above view.

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Dissenting Opinion

Dixon, J.

(dissenting.) I agree with the majority of the court in thinking that the law under consideration is local. Two questions therefore arise: First, whether it violates the constitutional amendment, forbidding local laws which regulate the internal affairs of counties. Secondly, whether it is void for non-compliance with the constitutional amendment requiring that no private, special or local bill shall be passed, unless public notice of the intention to apply therefor, and of the general object thereof, shall have been previously given.

I. Does this law purport to regulate the internal affairs of the counties where it is to operate ? It attempts to fix the salary payable by the county of Passaic to the prosecutor of the pleas of that county. Is the payment of that salary an internal affair of the county ? I think not. The compensation of the prosecutor is a necessary incident of the prosecution of crimes within the body of the county, and such prosecution cannot properly be regarded as an internal affair of the county. The offences to be prosecuted are violations of state laws, committed against the peace of the state, prosecuted in the name of the state by an attorney of the state before judges appointed by the state, the penalties to be imposed are inflicted by direct authority of the state and mainly understate supervision, and whether in any case they shall be remitted is determined in a court of the state. These things have-been so ever since the commonwealth existed; and- they show,, in my judgment, that, according to the general consent of our people, the repression of crime in each county concerns the state at large and is not an internal affair of the county. The incidents partake of the character of the principal.

II. Is the law void for want of notice ?

With regard to this question, I think, first, that whether notice was given is an inquiry not open to judicial consideration. Two theories exist in this country touching the effect as evidence of a document found in the legal depository of laws and regularly certified by the usual authorities to have become a law. One is, that such a document is 'prima, facie a law, but that the courts will receive other evidence, such as legislative journals, to ascertain whether the mandates of .the constitution as to the mode of enacting laws were observed regarding it, and if they were not, will adjudge it null. The other is-that such a document is conclusive evidence of its being a law,, so that no proof can collaterally establish the contrary. This latter is the theory which has been adopted in New Jersey (Pangborn v. Young, 3 Vroom 29,) and it has my entire concurrence. The secretary of state may be regarded as the clerk of the legislative department of the government, and if there appear in his office instruments having the form of law which have not been adopted by the legislature as law, the citizen aggrieved must go to the legislature for redress, just as he would be obliged to go to a court whose records falsely showed a judgment against him. If he says the legislature is not in session and cannot act until his injury is complete, he may be answered that the same imperfections attend the methods of judicial redress; if he suggests that the legislature is not or will not be willing to purge its records from falsehood, he must be answered that it would be indecent for courts to act on such suggestions. The béhests of the constitution as to the mode of legislative procedure are addressed to the legislature itself, and when that department of the government has ■declared that in accordance with those behests it has enacted a law, the executive and judicial departments must receive that that declaration as verity.

But while this is conceded to be the rule touching all other constitutional provisions, it is denied as to this amendment, because the clause directs the legislature to prescribe what shall be evidence of the giving of notice and how the evidence shall be preserved. The argument is that because the evidence was to be preserved, it was designed to have it used to maintain or impeach the validity of the law. The constitution does not itself express such a design; it is ■claimed to appear by inference only. The reasons for such an inference seem to me to be weak and to have been substantially condemned in Pangborn v. Young, ubi supra. There the question was whether the court would permit it to be shown by the journals of the legislature that the alleged law had not been voted for by a majority of each house. The constitution in terms commands that no bill or joint resolution shall pass unless there be a majority of all the members of each body personally present and agreeing thereto; that the yeas and nays of the members voting on such final passage shall be entered on the journal which each house is •directed to keep of its proseedings and from time to time publish. Thus there was the express mandate of the constitution, that evidence of the fact should be made by entry on the journal under the very eye of the house, and should be pre • served, by publishing it to the world, so that loss would be practically impossible; and the fact to be evidenced was the very essence of legislation. Yet these careful provisions in the text of the constitution itself did not induce the court to infer that thé validity of public laws depends upon such evidence as the journals afford. Is it more reasonable to draw a parallel inference from the vague provisions now under review, which concerns only a preliminary to legislation and ■commits the whole subject to the discretion of each legislature? I think not.

The statute passed to carry out this amendment well exemplifies the danger of holding that the question whether due notice was given is a matter for judicial revision. It directs (Rev., p. 1125,) that the notice shall contain a correct statement ■of the general object of the bill, be signed by at least one of the parties who intend to apply for its passage, and be published in at least one of the newspapers printed and published-in every county wherever said bill is or is likely to take effect, and, if no newspaper be printed and published in said county, then in a newspaper printed and published in some adjoining county, which publication shall be at least once in each week for four consecutive weeks next preceding the day prescribed for the first assembling of the legislature in which such bill is to be introduced. It further directs that proof of the publication shall be made by an oath or affirmation in writing made by the publisher or agent of the publisher of every newspaper in which such publication was made, containing a copy of the notice published, which shall be presented with such bill when introduced, and after the final vote upon said bill shall be filed and deposited by the officers of the legislature in whose hands the same may be in the office of the secretary of state, there to remain; by the secretary it is to be recorded. Whether this statute is within constitutional limits and binding upon legislatures, while it stands, may well be doubted. The constitution is satisfied by public notice given previous to the passage of a bill, while this act requires such notice to be given before the assembling of the legislature. But if compliance with this statute is to be the final test of the existence of private, special and local laws, then, first, are the dangers of defective proof, arising out of the neglect or unskillfulness of inexpert draftsmen; and, secondly, the probability that a duty to be performed, not at a specified time, but only after a certain event, not devolved upon any particular officer, but divided among all the officers of the legislature, will be ob- • served by none. After the supreme power of the state has pronounced its sovereign will, the operation of that will is to be kept in abeyance until, or totally defeated' unless, an undesignated official, under the guidance of his own judgment, shall happen to conclude that he ought to file a printer’s affidavit, which somehow has got into his hands. But if it be alleged that obedience to this statute is not requisite, but only obedience to the constitution that public notice shall be given before the passage of the bill, then the answer is that the constitution manifests a design to entrust to the legislature, and not to the courts, the right to say what shall be notice, and what the evidence of it. In my opinion, this entire clause is addressed to the judgment and conscience of the legislative bodies; they are to say, and say conclusively, as they pass upon each private, special local and bill, whether legal notice has been given; and the evidence of such notice is to be made and preserved for use in each house and before the governor, and thereafter, if at all, in order that the people may know whether their servants have regarded constitutional obligations. To that effect is the decision in Broadnax v. Groom, 64 N. C. 244.

As a check upon legislative power, the clause is utterly useless ; for, in fact, no bill of any kind does nowadays pass either house without public notice being given, both by its public introduction and by newspaper correspondents, of the intention to apply for it and its general object, and each legislature can enact. that this notice shall be sufficient, and that the conclusive evidence of it shall be the filing with the secretaiy of state of the certified bill. With such a law the legislative power would stand where it did before this amendment was adopted.

But, secondly, I think there is not, in the present case, competent proof that due - notice was not given. The only evidence to that effect is the admission of the parties. In Illinois, where the courts are willing to go behind the certified bill to see whether the legislature has proceeded according to the constitution in enacting laws, they distinctly repudiate the admission of parties as proof of irregularity. Happel v. Berthauer, 70 Ill. 166. The point for decision is whether what seems to be a public law closely affecting the preservation of the public peace, which is certified by the general assembly, the senate and the governor to have been enacted in conformity with all the requirements of the constitution, and which, under the sanction of the government, has been promulgated as law to all the citizens of the state, is proved not to be law by the admission of two suitors. The question is not one of private concern merely; it involves the enforcement of a public statute, and, in this case, against public officers. If, on a bill for divorce, the parties should stipulate that the defendant was to be taken as guilty of the offence charged, the court would ignore the admission because the public is interested in the maintenance of the marriage state. The enforcement of a public law is quite as important to the public as is the preservation of any single marital bond. The proof to defeat the law should therefore be, not simply evidence legal against the nominal parties, but proof against the state, proof of the absolute fact, proof which constrains the conscience of the court to adjudge that a co-ordinate branch of the government has transgressed its constitutional bounds. This proof no private admission can furnish.

My conclusion, therefore, is that the statute before us was duly passed and is valid, and that therefore the judgment below should be reversed.

For affirmance—Magie, Parker, Reed, Yak Syckel, Clement, Cole, Paterson, Whitaker. 8. For reversal—The Chancellor, Dixon, Knapp. 3.