71 N.J.L. 249 | N.J. | 1904
The opinion of the court was delivered by
The defendant, having been indicted by the grand jury of Ocean county for violations of chapter 39 of the laws of 1902 entitled “An act for the better regulation and control of the taking, planting and cultivating of oysters and clams on lands lying under the tidal waters of the county of Ocean, in the State of New Jersejf” (Pamph. L., p. 170), as amended by chapter 251 of the laws of 1903 (Pamph. J., p, 638), has caused the ■ indictment to be removed into this court by certiorari, and now moves that it be quashed.
The ground principally urged is that the act in question is unconstitutional for want of generality, its scope being territorially limited to certain portions of the county of Ocean.
The constitutional inhibition relied upon is paragraph 11 of section 7 of 'article 4, adopted as an amendment to the constitution in 1875, the portion thereof that is especially pertinent reading -as-ffollows:
“The legislature shall not pass private, .local or special laws in any of the following enumerated cases, that is to say,. * * * regulating the internal affairs of towns and counties; appointing local offices or commissions to regulate*251 municipal affairs; * * * granting to any corporation, association or individual any exclusive privilege, immunity or franchise whatever; * * * the legislature shall pass general laws providing for the cases enumerated in this paragraph, and for all other cases which, in its judgment, may he provided for by general laws.”
The act in question is modeled. closely after the act of March 24th, 1899, pertaining to- the oyster grounds of Delaware bay and Maurice river cove, which was sustained as constitutional by this court in State v. Corson, 38 Vroom 178 (at p. 188, &c.) Little needs to be added to what was said by the present Chief Justice in that case, although the ground of the present attack is somewhat different.
The mere fact- that a given act of the legislature is limited in its territorial scope to a portion of the state coincident with or less than the bounds of a single county or other municipal division, does not make such act an act regulative of the “internal affairs” of such county or municipality within the meaning of the constitutional prohibition. The above paragraph of the constitution deals with the municipalities not as territorial divisions but as governmental entities. An act that deals with matters of municipal government, or affects the municipalities in their governmental capacity, • regulates their internal affairs within the meaning of the prohibition. But an act that has no such force or effect is not within the prohibition, although, with respect to the geographical area of the county or other municipal division, its operation be internal.
The act under consideration in nowise regulates or affects the internal affairs of the county of' Ocean, or of any other municipality. It neither creates any new municipal corporation nor disturbs any already in existence. It neither confers nor withdraws powers of local government'. It imposes no expense upon the county, nor adds anything to the' county treasury. It deals directly with lands owned by the state in its sovereign capacity, for the purpose of administering and regulating fishing privileges that are held by the state in trust for the citizens thereof.
The act before us is like that reviewed in the Corson case
But that provision also contains a mandate upon the legislature to pass general laws providing for the eases enumerated in the paragraph, “and for all other cases which in its judgment may be provided for by general laws.” It is earnestly insisted by the learned counsel for the defendant (and here 'the argument proceeds beyond that which was overruled in the above eases) that legislation concerning the protection and development of the oyster industry may well be, and ought to be, provided for by general laws, operative alike throughout the tidal waters of the state-. But the framers of the general mandate just quoted distinctly and, as we think, wisely left the provision of general laws upon all subjects, outside of those specifically enumerated, to be dealt with according to the judgment of the legislature. Without going so far as to say that no special law outside of the specific prohibitions could be declared void by the courts for want of generality, it is sufficient to declare that it would require a plain case to warrant the courts in interfering.on that ground, and that the statute before us presents no such case:
In addition to the circumstance pointed out in State v.
It would seem to result, as a matter of natural equity, that the regulation of the right to take fish and game in any and .every part of the state ought to be reserved by the legislature .and administered in such manner as to give equal opportunities to all the citizens of the state, rather than that this governmental function should be delegated to the citizens of .any locality. But from this it by no means follows that the taking of fish or game in one locality must be made subject to the same regulations as to times, modes and seasons that .•are in force in other localities. With reference to fish, the character of the waters; with reference to game, the character of the land, whether low or elevated, open or wooded, near to •or. remote from populous centres, near to or remote from the
We find, therefore, that the act under consideration is not unconstitutional in any of the respects mentioned.
The sole remaining ground on which the motion to quash the indictment has been pressed is that it fails to allege that the grounds from which the defendant is charged with having taken oysters and clams were grounds not excepted from the general operation of the act by its ninth section. That section declares that nothing in the act shall be interpreted to confirm the title of any person to airy lands excepted from leaseholds by the provisions of section 5; "provided, however, that any person who has held or planted grounds within the limits therein excepted shall be granted two years’ time from ■June first, nineteen hundred and two, in which to remove said oysters and eultch planted thereon by him.” The argument is that the indictment ought to show that the defendant is not within the saving of this proviso.
But no count of the indictment is founded on either the ■fifth or the ninth section of the act. There are six counts, four of which are based upon violations of section 16, as amended in 1903, and the remaining two counts set up violations of section 21 of the act of 1902. The proviso contained in section 9 has no limiting effect upon either of these pro'hibitions. It sets up an independent personal privilege, based
The motion to quash is denied, with costs.