41 N.J.L. 495 | N.J. | 1879
The opinion of the court was delivered by
This writ of certiorari brings for consideration proceedings of the Court of Common Pleas of Camden county, in granting to the defendant a license to keep an inn and tavern in the city of Camden. Its design is to test, in this way, the power of the Court of Common Pleas to grant such licenses within that city, the city authorities questioning the power of the court so to do. Section one hundred and one of the act entitled “An act to revise and amend the charter of the city of Camden,” approved February 14th, 1871, (Pamph. L., p. 257,) in language clear and entirely certain, confers upon the city council the exclusive right to
It has been settled by adjudications in this court, and in the court of last resort, that the word “ towns,” used in this clause, is a generic term, embracing within its meaning cities, as well as townships and boroughs. Pell v. Newark, 11 Vroom 71; S. C. on error, Id. 550.
' The general effect of the clause in .question was declared to-be to take away from the legislature the control of municipal affairs in these political divisions, through the instrumentality of local and special laws, in all cases where the subject matter of the enactment was not in its nature necessarily local and special, and to attain those ends through general laws, applicable alike to all the members of any class gifted with common qualities or attributes, thus securing uniformity in local municipal govei’nment.
In the case of Bingham v. Camden, 11 Vroom 156, it was decided by this court that an act creating a board of excise commissioners, with power over the subject of licenses, was an act regulating its internal affairs. It was a change in the measure of its corporate powers by enlargement, but it was because it was a change in the attributes of the municipality that it was found to be objectionable. Had the power inhered in the city, taking it away would have been a change precisely equal in degree in the opposite direction.
The power of the legislature to create and destroy cities is not drawn in question, but I think it cannot destroy by piecemeal, through the instrumentality of special laws, with greater right than it can by the same means add to and construct. The repeal of an act, or a section in the city legislation, may take away control over streets, or withdraw the regulation of sidewalks, or street lighting from the city. It may extinguish the power to appoint a police force, or to try and remove its members for disorder, incompetency or crime. Indeed, any function, legislative, administerial or judicial, maybe abstracted from the body of its chartered powers, and in that way important alterations in the internal polity of a town or city by
It would be a narrow aud restrained construction of the word “regulating,” which excluded from its embrace those changes in government which could be wrought by repealing statutes.
If, then, the repealing act of 1876, being local and special in its character, was a “ regulation of the internal affairs ” of the city of Camden, in respect to a matter not in its nature local or exclusively pertaining to that city, it is inoperative, and the licensing power continues with the city, in the sole control of the city council, and was not rightfully exercised by the Court of Common Pleas.
It was decided, in the case of Bingham v. Camden, ubi supra, that the act creating the excise board, and conferring upon it the power to license inns, &c., was within the constitutional inhibition, as one relating to the internal affairs of the city.
The act in question operates upon the same subject, taking away from the city council control over that branch of police regulation, one which has been exclusively administered by it under legislative authority since 1871.
If it be admitted that the power cannot be given by special enactments, it must, for the same reason, be conceded that it cannot thus be taken away.
It is not an act to re-invest the Court of Common Pleas of Camden county with its ancient jurisdiction over this subject. It expresses no such purpose either in the title or body of the act. Such a result is merely incidental. It is, therefore, unnecessary to consider how far such an act might be maintained, which incidentally and casually absorbed a portion of a city's powers.
The exclusive authority and control over the licensing of
It might not be difficult to support a special law as effectuating the constitutional purpose to secure uniformity in ■municipal government when it conferred upon a city a power ■exercised by all others; or lopped off from the powers possessed by it, one peculiar to itself. The court might disregard the mere form of the law; or hold it in such case as necessarily special and local.
Such a rule could not be applied in this case. Camden ■city stands in this respect with other cities in the state, holding and exercising like powers; and only by a general law bringing them all into uniformity could the legislative purpose have been accomplished.
The repealing act failed to take away from the city council the authority vested in that body by the act of 1871, and consequently its jurisdiction remained exclusive of any right m •the Common Pleas.
The license granted by the Pleas is set aside.