51 N.J.L. 319 | N.J. | 1889
The opinion of the court was delivered by
This litigation has its root in the act of the legislature entitled “An act concerning, the government of cities of this state,” approved April 6th, 1889.
The general purpose of that enactment is to vest in the respective mayors of the cities the power to appoint the principal municipal officers, thus abolishing, in the main, all the existing methods for the performance of that function.
The law, by its terms, is made operative only in such cities whose inhabitants choose to accept it, its language in that respect being, “ that the board of aldermen or common council of'any city may, by resolution, or the mayor of any city may,
This act was accepted by a popular vote at an election held in Jersey City, and the mayor has proceeded to fill the municipal offices in pursuance of its provisions.
The counsel of the former officers who were thus superseded, in their argument before us, challenged, in the first place, the validity of the statute itself, and, in the second, the legality of the election that has been held by virtue of its authority.
In support of the first of these propositions it was insisted that the legislation was unconstitutional, on the ground that it was special and local.
It was not denied that the statute by its terms was general, as it embraced the whole of the legal class to which it is applicable, and was unlimited with respect to place; but the objection was to its capability of being converted into a local and special law by its acceptance by some cities and its rejection by others. It was said that the true test of the conformity of legislative action to the clause of the constitution to which the argument related, was the result of such action. And in support of this doctrine the case of the appeal of the City of Scranton School District v. Lackawanna Iron and Coal Co., reported in 113 Penna. St. 176, was relied on. The question presented for consideration was whether a law was valid that was to take effect only when adopted by a municipal vote, in view of that clause of the constitution of Pennsylvania
But we have said that if an act be framed for a general purpose, and which is calculated to effect that end, such statute will not be unconstitutional for the reason that, in its execution, its entire object may not be effectuated.
And from this principle it follows, as an unavoidable corollary, that the limitation in point of time for the adoption of the privileges of this law, cannot be regarded as an invalidating circumstance.' The statutory language in this respect is, that no election shall be held under its provisions after the 1st day of October, 1890. It is true, that this provision may eventuate in the production of different local results, but such ■outcome is not the necessary effect of the law, and there is no indication that such an end was in view. This law is capable of coming into operation within the time prescribed, in every city in the state; it is, therefore, within the meaning of the ■constitution, a general and not a local act, for, as has been just said, it must be regarded either as general or special at the time of its enactment, and it is not to be ranked in the former class by reason of the fact of its subsequent general adoption, nor in the latter class because of its partial rejection.
In addition to these considerations, it seems to us that the •question above discussed must be regarded as res adjudicata in this state. In the recent decision of the Court of Errors
In the opinion of the court, the act in question is not in any respect out of harmony with the constitution of the state.
The next contention to be considered relates to the election which has been held in Jersey City under the authority of the statute in question.
Several objections have been urged by counsel against the legality of that proceeding.
First, it is insisted that the statute was not properly submitted according to its own directions to the popular vote. In this respect, the statutory authorization is “ that the board of aldermen or common council of any city may, by resolution, or the mayor of any city may, by proclamation, submit the question of the acceptance or rejection of this act to the voters of such city at any general or charter election to be held therein.” In the present instance, the mayor being temporarily absent from the state, the president of the board of aldermen performed this function. By the charter of Jersey City, it is provided “ that in case of the absence of the mayor from the city, * * * the president of the board of aldermen shall be invested with the power and authority of the mayor until either the mayor resumes his duties,” &c. It is manifest that under the designated conditions it was the legislative intent to confer on the president of the board of aldermen not only a part, but the whole of the power resident in the chief executive of the city; he was empowered to do everything that the mayor, by virtue of his office, could do ;
In view of this legislative action, and in consideration of the fact that by the charter of the city the mayor pro tempore is clothed, when legally in office, with all the powers and faculties of the municipal executive, it does not seem reasonable to believe that it was the design of the law makers, when they declared that the election in contemplation might be ■called by the mayor, to exclude from such function the person who, although he had not been elected to the office, was de
On this head our conclusion is, that under the existing circumstances, the president of the board of aldermen had the legal authority to proclaim the election in question.
It is not necessary, therefore, to discuss the subject argued by counsel relative to the efficacy of the statute which was-subsequently passed for the purpose of validating this action of the acting mayor of the city.
A second objection to the preliminaries of the election under-examination is, that the president of the board of aldermen in his proclamation -misrecited, in an important particular, the act that was submitted to the voters for acceptance or rejection.
The draft of this act, as it stood originally before the legislature, contained, at the close of section 2, the declaration that “ no more than two tax commissioners so appointed shall be-from the same political party,” but that regulation was struck out before its final passage. By inadvertence the clause thus-eliminated was retained in the act as recited in the proclamation calling the election, and it is argued that this mistake vitiates the entire electoral procedure.
This position appears to us extravagant and untenable. The statute does not require its publication as an antecedent to the election, and in the proclamation it is referred to and designated by its title and the date of its enactment, and it would be singular indeed, if, by a mistake of an official, in the-doing of an entirely superrogatory act, an election relating to a-, matter of public importance, and in which the people at large-have an interest, should, ipsofaeto, be annulled.
The legal rule in matters of this nature is, that in order to invalidate the procedure the error complained of in the given case must appear from the proofs, or by necessary intendment, to have so affected the election as to have changed its result. In the case before us, there is nothing to indicate that the-mistake referred to, and which related only to a single class of officials, did, in point of fact, affect this election to the extent-
With respect to the objection touching the publication of the notice of the election, we are of opinion that it conformed to the statutory direction.
Nor, after careful examination, have we found the existence of any radical imperfection in the act auxiliary to the one just disposed of, and by authority of which this court is now in session. The law referred to is entitled “A supplement to an act entitled ‘An act concerning the government of cities of the state/” approved April 6th, 1889, such supplement having been passed on the 19th of April, in the same year. The general object of this supplementary legislation is to settle expeditiously and in a summary way, all controversies arising which concern the rights or title of any person who has been appointed by a mayor of a city to office by virtue of the primary act. The scheme thus put on foot consists in a requirement that the chief justice of this court, on the application of any mayor, shall convoke a Supreme Court to hear and decide such litigation, and shall superintend and adjust the pleadings, so that the proper issue shall be formed. There is a provision that all parties claiming any right, title or interest in the office in dispute, shall be brought in and made parties to the record.
In this procedure we do not find anything that is calculated to deprive these litigants of any substantial right. They are plainly entitled, by force of the system thus contrived, to all the rights and privileges that appertain to the trial of official title by virtue of the writ of quo warranto. The jurisdiction in both procedures belongs to the same tribunal; and if these litigants had been at issue on any matter of fact, and either of them had demanded a trial by jury, such trial would have been directed by the court, for, as the legislative direction is for*the court to try the case, the necessary implication arises, that the procedure is to be conducted in the ordinary mode. The parties have formed, by mutual arrangement, their own issues; have taken testimony to their satisfaction, and, with
The other questions presented in the arguments of counsel have been considered, but have not appeared to us to be of sufficient solidity to require special discussion.
In fine, in our opinion, judgment of ouster should be entered against these incumbents who are holding possession of these offices by force of an election or appointment unde»the old city charter.