Wanser v. Hoos

60 N.J.L. 482 | N.J. | 1897

Lead Opinion

The opinion of the court was delivered by

Depue, J.

The issue presented in this case is upon the validity of an act of the legislature, passed March 18th, 1897, entitled “An act relating to cities of the first class in this state, and providing for the holding of municipal and charter elections therein, and regulating the terms of elective and appointive officers therein.” Pamph. L., p. 43. It provides that all municipal officers in cities of the first class shall be elected in each year on the first Tuesday after the first Monday of November, which is the day fixed for the annual election of state and county officers, and upon the same official ballots required by law for the election of state and county officers. It combined the election of municipal officers with elections for state and county officers, which theretofore had been kept separate. The contention was that this act was in violation of constitutional provisions. This contention was sustained by the Supreme Court.

Paragraph 11, section 7 of article 4 of the constitution provides that the legislature shall not pass any private, local or special laws in certain enumerated cases, among which is “ regulating the internal affairs of towns and counties.” This constitutional prescription is a restriction on the sovereign power of the legislature that did not appear in either the constitution of 1776 or 1845. It was introduced into the organic law of this state by an amendment in 1875, and grew out of the public appreciation of the evils that sprang from local and special legislation in relation to municipal affairs. The people, in adopting this constitutional provision, intended to eradicate the source of these evils. In language too plain and explicit to be misapprehended it prohibited the legislature from passing any local or special law on those subjects and restricted such legislation to general laws.

The construction and force of this constitutional provision present a legal question to be decided by the courts. State v. Rogers, 27 Vroom 480. The course of legislation on this subject by the legislature, while it is entitled to respect, cannot be permitted to control the decision of the judicial department of the government in its construction of the constitutional provision, for, as was said by Chief Justice Marshall, in Cohens v. Virginia, 6 Wheat. 264, 389, “ the power to make or unmake (the fundamental instrument of government) resides only in the whole body of the people and not in any subdivision of them.”

The legislature may, without infringing on this constitutional interdict, resort to classification for the convenience of legislation. The act of 1882 (Gen. Stat., p. 458), by which cities were divided into classes on the basis of population, and other statutes by which boroughs and counties were in like manner divided, are instances of such legislation. The act of 1882 expressly declares that the classification therein made was for the purpose of municipal legislation in relation to cities, and that all legislation founded upon such classification should be construed to embrace all cities of the class referred to.

The courts, in a series of eases too numerous to be cited, have given to this constitutional provision a fixed construction. In the first case in which this provision came before the court, a general law, as contradistinguished from a special or local law within the meaning of the constitution, was defined to be a law that embraced a class of subjects or places and did not omit any subject or place naturally belonging to such a class. Van Riper v. Parsons, 11 Vroom 1.

The test of the generality of a law adopted is that it shall embrace all and exclude none whose conditions and wants render such legislation equally appropriate to them as a class. It is also equally well settled by decisions of our courts that, although population may be made the basis of classification in statutes relating to municipal bodies, such a classification cannot be made the means of evading the constitutional interdict of local or special laws. The question whether any particular statute is local or special must be determined not upon its compliance with a legislative classification, but upon whether, having regard to the character of the legislation and the limitation upon it contained in the act, the statute is or is not a general law as defined by the courts.

The Supreme Court of the United States has likewise proceeded upon this principle in deciding upon the validity of statutes under the equality clause in the fourteenth amendment to the federal constitution. In Gulf, Colorado and Santa Fe Railway Co. v. Ellis, 165 U. S. 150, the court held that there might be classification for the purposes of legislation, but that the mere fact of classification was not sufficient to relieve a statute from the reach of the equality clause of the fourteenth amendment, and that in all cases it must appear not merely that a classification has been made, but also that it is based upon some reasonable ground—something which bears a just and proper relation to the attempted classification, and is not a mere arbitrary selection; and in the application of that principle the court set aside an act of state legislation as in violation of the constitutional provision.

It must not therefore be inferred from the language used in the opinions of the courts that' the mere aggregation of individuals in a municipality is the actual basis on which a classification may legitimately rest. The constitutional prescription relates to the regulation of the internal affairs of towns and counties without regard to- population, and it applies as well to the lesser as to the greater municipalities in this state. In In re Haynes, 25 Vroom 25, 28, Chief Justice Beasley, in discussing this subject, speaking of an act establishing a board of street and water commissioners in cities of the first class, observed: “It is true that the classification of our cities is made on the basis of population, but this term, in this connection, connotes hot only the number of the inhabitants, but also municipal magnitude in all respects; and a city largely populous must necessarily have a great stretch of streets and a water-supply of immense volume. It is the largeness of such necessities, incident, to a great population, that differentiates cities of'the first class from cities of the other classes, and the consequence is that all legislation regulative of such necessities, on account of their magnitude, is obviously constitutional, as it is germane to the basis of municipal classification.” If, therefore, municipal population, when it is large, does not require a different kind of machinery from that which is suitable to a small population, then it would be plain that the position of the counsel of the relators (that the act was special and local) would be impregnable. The Chief Justice reiterates the same views in Matheson v. Caminade, 26 Id. 4.

In Warner v. Hoagland, 22 Vroom 62, a statute relating to streets, avenues, parks and sewers, in which cities of the first class were excepted, was sustained on the ground that the extent and cost of local improvements necessary to the growth and prosperity of the excepted cities require efficient and expensive city governments, and that the affairs of these municipalities could not be managed by local governments adapted to cities of the population and insulated position of the smaller cities of the state. The same reasoning was adopted by the court in Randolph v. Wood, 20 Id. 85, and also in Mortland v. Christian, 23 Id. 521, 538. The counsel of the plaintiff in error having relied considerably upon the latter case to sustain the present legislation, a statement of the grounds upon which that ease was decided will be appropriate. The act then under consideration was one changing the membership and mode of election of the boards of freeholders in counties of the first class. In sustaining the law as not being local and special, the learned judge who delivered the opinion of this court said: “ No one familiar with the construction and operation of boards of freeholders in the several counties in this state can fail to see that, by this scheme, an entirely new and distinct system of administrative machinery is provided—one more compact in form, with greater executive possibilities, making greater demands upon the time and services of the members, for which increase pay is provided, together with an increase of individual responsibility, with which is coupled a substantial security to the public by means of bonds with heavy penalties. That such a system is not applicable to the smaller counties is not less evident than that the existence of such machinery would be an unnecessary and disastrous burden upon their finances. Whether' the largest counties do require boards of such increased efficiency is not for us to decide. If they do, it is evidently in respect to matters growing out of excess of population. The legislature, in whom the determination of these questions is vested by the constitution, has decided that counties of the first class do require a change of the character indicated by this act, which changes, from the considerations just mentioned, are inappropriate to the smaller counties for the same reasons which constitute their appropriateness to the larger ones. Such being the relation borne by the provisions of this act to the various counties of this state, viewed from the standpoint of population, the act in question must be deemed to be general, in that it reaches the one class to which the legislature has determined that it is appropriate, and that that class is distinguished by those features which constitute its appropriateness from all the other counties in the state.” The act sustained was restricted to counties of the first class. It created boards of freeholders in such counties, with membership, powers, duties and responsibilities different from those pertaining to boards of freeholders in other counties of the state, and changed the time of the election of its members from the spring to the annual election in the fall. The act concerned the machinery by which the affairs of these counties were administered, and the classification was sustained by this court on the ground of the magnitude of the interests which came under the jurisdiction of boards of freeholders in those counties, which made the system of administrative machinery adopted appropriate to such larger counties and inappropriate to the smaller counties in the state. The change in the time for holding the election of these officers, who were county officers, to the election day on which the other county officers were elected, was a mere incident in the scheme of administration provided by the act, which, the classification having been found to be lawful, was, in the judgment of the legislature, necessary, and in fact was eminently appropriate, for the election of the members of the newly-created boards, who wére elected from the assembly districts, and was a matter of discretion on the part of the legislature. This case give's no countenance to the notion that the legislature may classify on the basis of population, and thereupon legislate upon any subject relating to the .internal affairs of’ municipalities untrammeled by the constitutional prescription. The decision gives no-support to the act' under consideration.

State v. Borough of Clayton, 24 Vroom 277, is not in eonflict with the cases above referred to. The act sustained provided a scheme for oi’ganizing borough governments. ' It provided for' the incorporation of the inhabitants of any township or part of a township .embracing an area not exceeding four square miles and containing a population not exceeding five thousand,-whenever’, at an election called and conducted in a specified- manner, a majority of the electors thex’ein qualified tó vote for state and township officers approved of it. In providing for these local governments, population, whatever it may represent or indicate, as well as area, are considerations necessarily entering into the propriety of establishing such local governments, an.d, as was said by the present Chief Justice, “population does bear a plain and obvious relation to the necessity and propriety of various grades off municipal government.” • The classification oxi the basis of population as'well as ax’ea'being necessarily committed to the judgment and discretion of the legislature, the court declared that it would not interfere with the legislative judgment uriléss the classification be illusive or be. applied illusively. The provisions of the act were extended throughout-the state and open to be accepted by a popular vote wherever-, area and population complied with the requirements of the act.

Paul v. Gloucester County, 21 Vroom 586, is a case of similar-aspect. An act to regulate the sale of intoxicating and brewed liquors was under examination. The'question pertinent to-this discussion' was whether the classification by- population for the purpose of fixing the minimum license fee wa,s vicious.;.. In that case the legislation in question was under the police power of the state. The evil at which the legislation was aimed was one that concerned individuals, and the regulation of this traffic had prevailed in this state from the earliest period. In the opinion of this court sustaining the law, Mr. Justice Van Syckel said (at p. 592): ‘‘ In administering the license laws the practice has prevailed, under the Inn and Tavern act, to regard the density of population in fixing the license fees. Where the population is dense the legislature may have concluded that the people will be more prosperous; that they will expend their money for luxuries more freely and will pay higher prices than in sparsely-settled districts. Also, that the larger the population the greater will be the expense of maintaining the police department. No more suitable basis of classification, which the legislature could have selected for itself, has suggested itself during my consideration of this subject.” Indeed, it may be said with great force that no classification for the purpose of regulating the sale of intoxicating liquors is so eminently appropriate as a classification on the basis of population. Matheson v. Caminade is also a similar case. The legislation under examination established in every city of the second class having a population of fifty thousand or over one police court, and provided for the appointment of the judge by the governor, with the advice and consent of the senate. The contention was that cities of this class were not possessed of any quality that would justify the giving to them alone a court of this character. The Chief Justice, in his opinion, declares that this criticism had no force, unless it be assumed that the needs of the smaller cities regarding magistracy were identical with the larger ones. He said: “Such an assumption would of course be absurd, and yet, if it be admitted that places of great population require and are entitled to a more elaborate system of police than places of a sparse population, the fallacy of the position in question is demonstrated, for the legality of a legislative classification for such municipalities has become manifest,”

■ It would need no argument to demonstrate that it is density -of population that in a great measure creates the necessity for increased police service. Population in that respect is an -appropriate, if not the most appropriate, classification for such legislation. It was with respect to legislation of the -character of that involved in State v. Borough of Clayton and Matheson v. Caminade that Mr. Justice Van Syckel, in Paul ». Gloucester City, said (at p. 592): “Whether the basis of -classification is wise or judicious, or Whether it will operate as fairly as some other basis that might be adopted, is a question for the legislature and not for the courts. The extreme limit, -of our inquiry in this direction is, Does population bear any reasonable relation to the subject to which the legislature has .applied it ? Is it germane to the law ? M

The act now in hand is not an act establishing a scheme of local government, as was the act in the Clayton case. It is .-.an act regulating the internal affairs of existing municipalities. Nor is it a police regulation in which population is essentially the basis of classification, as in Paul v. Gloucester City and Matheson v. Caminade. This act stands on considerations •extraneous to those in the class of cases above cited. A case more pertinent to the case in hand is Anderson v. Trenton, 13 Vroom 486, 488. In that case a classification on the basis of population in an act authorizing cities having a population of not less than twenty-five thousand to issue municipal bonds was held to be an illusory classification, and the court set :-aside the act on the ground that it could not see any natural -connection between the number of people in a city government and its right to fund a floating debt. The learned judge who delivered the opinion of the court said that it Was manifest that “ if the classification made by a statute is to be justified or not, by considering whether it is proper to apply the peculiar provisions of the law to the particular individual or individuals designed to be affected, then laws will be upheld • or overthrown, not as the courts shall decide them to be gen- • eral or special, but as they shall deem them wise or unwise. No rule heretofore laid down in this state sanctioned such a test of constitutionality, nor do I think that such a criterion should be adopted.”

.It is also apparent' from the decisions in the courts of our own state aud in other jurisdictions, federal and state, that; when a law is in terms local, satisfactory reasons must be foünd to exclude it from the constitutional’ interdict. That the cities or municipalities, to which it applies have been properly classified for general municipal purposes, does not of itself furnish a.sufficient reason for sustaining such legisla-r tion. Otherwise the elaborate reasoning in Ex parte Haynes, Mortland v. Christian and similar cases was superfluous. The court should have simply said, “these cities have been-legally classified and the legislature may deal with their internal affairs in its discretion.” ;

• The principle by which general laws are distinguished from those which are either local or special applies to all legislation-regulating the internal affairs of municipalities, and the discretion that enters into the decision of the question whether a particular law is general or local or special is that where the classification appears to rest on substantial grounds and the-line of demarcation which separates the places included from those excluded is a matter of judgment, the resolution of the legislature will .prevail unless it plainly appears that, such classification is an evasion of the constitution.

In the much-canvassed case of Mortland v. Christian similar-views were expressed by Mr; Justice Garrison (atpp. 538, 539)¿ who said; “Whether the largest counties do require boards of such increased efficiency is not for us to decide. If they do, it is evidently in respect to matters growing out of excess of population. • The legislature, in whom the determination of these questions is vested by the constitution, has decided that counties of the first class do require a change of the character indicated by -this act, which changes, from the considerations just mentioned, are inappropriate to the smaller counties for the same reasons which constitute their appropriateness to the larger ones. * * * The act in question must be deemed, to be general in that it reaches the one class to which the legislature has determined that it is appropriate, and that that -class is distinguished by those features which constitute its ■appi'opriateness from all the other counties in .the state.”

In State v. Borough of Clayton the present Chief Justice said (at pp. 278, 279): “In determining whether this act is general, within this meaning [that is, whether the class is composed of all municipalities which, considering the purposes of the legislation, are distinguished from others by qualities or characteristics such as to make the legislation appropriate to them and inappropriate to others], its purpose is first to be •considered, and it is then to be determined whether the municipalities on which it operates have substantial distinctions segregating them from other municipalities, and evincing that such legislation is germane to them and not to others.” 'In •every case the primary consideration in the process of determining whether a particular law, local or special on its face, is a general law in the sense of the constitution is the consideration whether the classification adopted is based on those .substantial grounds which justify the limitation of its enactments to one set of municipal bodies and the exclusion of 'Others. No question of legislative discretion can possibly .arise until the preliminary question is solved.

It was conceded that the legislation in question is a regulation of the internal affairs of the cities to which it applies, but it was contended that it related to the structure and machinery of government, and therefore classification on the basis of population was legitimate, whether the structure arid machinery provided were equally appropriate to other cities or not. It must not be assumed that acts relating to the structure or-machinery, of municipal government are freed from those rules apt to distinguish general from .local and special laws in other cases. The decisions are directly to the ■contrary. But it is unnecessary to discuss the conditions tinder which discretion may be said to enter into leglislation affecting the structure of municipal government, as exemplified in Matheson v. Caminade and MoLanghlin v. Newark, for the cáses cited do not sustain -the assertion that this act relates to either the structure or the machinery of government. In State v. Borough of Clayton the act provided for the organization of local governments with the appropriate-machinery. In McLaughlin v. Newark, 28 Vroom 298, the-act provided the means of dividing cities of the class embraced in it into wards and election districts. It dealt, as-was said by the learned justice who delivered the opinion of the court, only with the structure of the governmént—theformation of the machinery by which the affairs of the city are to be regulated. In Ex parte Haynes the act constituted' municipal boards in certain cities and defined their powers and duties. The act, as was said by the Chief Justice, dealt exclusively with the machinery by which the city interests within their departments were to be regulated. In Owens v. Furey the act established a municipal board of public works in certain cities. In Matheson v. Caminade the act established a police court in cities of the second class and provided for the manner of the appointment of the magistrates by which such courts should be held. In these and all the cases in which statutes based on a classification on the ratio of population were sustained, for the reason that they related to the-structure or machinery of municipal government, such legislative acts were directed immediately to the structure of the municipality itself or to the powers or the machinery of municipal government.

The act under examination differs in every material respect' from those involved in the preceding cases. It in no sense affects the machinery, powers or structure of the city governments, nor does it change the mode of selecting city officers. The constituency by which those officers are elected remains-the same. The act simply changes the date of their election by the same constituency and combines the election of municipal officers with the election of state and county officers upon-the same official ballot. It applies only to cities of the first -class—that is, to those having a population exceeding one-hundred ■ thousand. Newark and Jersey City are the only cities of this state with a population above the limit mentioned in the act, the population of Newark being, by the census of 1895, two hundred and fifteen thousand eight hundred and six, and Jersey City, one hundred and eighty-two thousand seven hundred and thirteen. Among the cities with a population not exceeding one hundred thousand are Paterson, with a population of ninety-seven thousand three hundred and forty-four; Camden, with a population of sixty-three thousand four hundred and sixty-seven; Trenton, sixty-two thousand five hundred and eighteen; Hoboken, fifty-four thousand and eighty-three, and Elizabeth, forty-three thousand eight hundred and thirty-four.

From the earliest period in the history of this state it has been the policy to keep the election of township, town and city officers separate from the election of state and county officers. This policy is- forcibly expressed in an act of the legislature passed in 1889 (Gen. Stat, p. 1331), which in its preamble recited, “Whereas, it is deemed for the best interest of municipal government that elections for local officers should not be held on general election days,” and enacted “ that no local or charter election shall be held in this state on the same day fixed for the holding of a general election or on the day when members of the general assembly are now elected by law.” At the time this act was passed no one of the cities, towns, boroughs or townships had its local election coincident with the state and county elections. The act changes the day for municipal elections in the two cities and combines the election for local officers with the election for state and county officers. The issue presented by this record is whether, having regard to the subject-matter of this legislation, cities having a population exceeding one hundred thousand have, by reason of population, characteristics distinguishing them from cities with a population of less than one hundred thousand which would make such legislation appropriate to the former class of cities and inappropriate to' cities having a less population. In solving this issue it must be borne in mind that this act, as already observed, in no sense relates either to the machinery or the powers or the structure of city government. On what course of reasoning can substantial grounds be found for discriminating between the cities of the one class and other cities, towns, townships and localities in the matter of holding local elections at the same time and combined with elections for state and county officers ? What characteristics are inherent in the population or affairs of the two cities embraced in the act distinguishing them from other cities—Hoboken, .Paterson, Elizabeth, Trenton and Camden, cities of large population—which render an election for local officers, combined with an election for county and state officers, appropriate to the one class and inappropriate ter the other, of such magnitude and importance as will justify the inclusion of the one class and the exclusion of the other from this scheme of legislation.? The act being local on its face, just grounds for such discrimination must be found in its subject-matter to relieve it from the constitutional interdict.

In the Supreme Court the grounds assigned for such a discrimination appear, briefly, to have been the double expense, the lack of interest on the part of voters and consequent negligence in the choice of candidates, and in safeguards against election frauds, such as bribery, fraud and corruption. Under the latter head it was argued that offices in large cities being more lucrative the temptation to election frauds is greater, calling for more elaborate and expensive safeguards than are applicable to charter and municipal elections elsewhere. It will be observed that by the act of February 19th, 1896 (Pamph. L., p. 13), it is provided that in every city of this state having a population exceeding forty thousand, the charter election and all elections for municipal officers should be held and conducted as the elections for members of the general assembly were held and conducted at the last election preceding the time of holding such charter election or election for municipal officers. If the stringent election laws which apply to the fall elections are necessary to suppress frauds in the conduct of elections, such laws are in force in Paterson, Camden, Trenton, Hoboken and Elizabeth, cities having a ■populatiomin excess of forty thousand, and these cities are ex-eluded from the legislation under review. And as covering the whole of this subject, if any advantages are to be gained or evils prevented by combining elections for city officers with state elections, can any reasonable ground be assigned for conferring such benefits upon Jersey City which should not be conferred upon Hoboken in the same county, or granted to Newark and denied to Paterson, Camden, Trenton, Elizabeth and, I may add, other cities in the state ?

With respect to the other reasons assigned as grounds for the discrimination created by this act, such as the expense of separate elections, lack of interest in voters and election frauds, these evils exist in a comparative degree in all the cities of this state, and if the combination of municipal and state elections will cure these evils, other cities cannot lawfully be excluded from this curative process. The reasoning of the justices of the Supreme Court on these subjects is so satisfactory that elaboration is unnecessary. Indeed, I may say that the counsel who argued this case in this court for the plaintiff in error, by his brief, seems to have repudiated the existence of any grounds to justify this classification by that process of reasoning. His argument for reversing the judgment below rests mainly, if not wholly, upon the contention that this legislation relates to the structure and machinery of local government—an argument which, to me, seems unfounded.

Being of opinion that this act is an act regulating the internal affairs of cities based upon an insufficient classification, and therefore in violation of the constitutional prescription, I shall vote to affirm the decision of the' Supreme Court.

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Dissenting Opinion

Dixon, J.

(dissenting). My conclusion that the statute under review in this case is constitutional rests upon four legal propositions which are, I think, fully supported by the decisions in this state: :

First. Our earliest cases involving the effect of the constitutional amendment forbidding the passage of private, local and special laws to regulate the internal affairs of 'towns and counties, lay down the principle that a law is general, and so not prohibited, if it applies to a class of towns, provided the class is formed upon a basis which bears some reasonable relation to the object of the law. Van Riper v. Parsons, 11 Vroom 1; Hammer v. Richards, 15 Id. 667.

Second. Later cases decide that towns may constitutionally be classified upon the basis of their population, for the purpose of legislation, whenever there exists a reasonable relation between population and the object of the law. Randolph v. Wood, 20 Vroom 85; S. C. on error, 21 Id. 175.

Third. Contemporaneously with the announcement of the foregoing rule, it was declared that whenever population may constitutionally be made the basis of classification, the line of demarcation can be drawn in the discretion of the legislature, provided it be not drawn illusively—that is, “with a view of escaping the constitutional restriction,” as Chief Justice Beasley expressed it in Van Riper v. Parsons, 11 Vroom 9. Randolph v. Wood, 20 Id. 85, 91; Paul v. Gloucester County, 21 Id. 585, 592; Warner v. Hoagland, 22 Id. 62, 68; Mortland v. Christian, 23 Id. 521, 538; Matheson v. Caminade, 26 Id. 4.

Manifestly the rule last mentioned is but a corollary from the previous decisions, for, place the line of cleavage where you will, and let the reason for discriminating between the smallest member of the lower class and the largest member of the higher class be ever so strong, that reason will approach the vanishing point when you compare the largest member of the lower class with the smallest member of the higher class * consequently, between these the line must be drawn arbitrarily or nearly so, and this arbitrary power must rest with the legislature, subject to the proviso stated.

Fourth. Our more recent decisions have, in some cases, expressly declared, and in others assumed, that there exists a reasonable relation between the population of towns and their' “structural forms of government and administration—the structure of the municipal government, the formation of the machinery by which their local affairs are to be regulated.” This proposition is sustained by the uniform practice of civilized nations, for everywhere the systems of municipal government provided for large communities differ from those adopted for small ones. Our courts have relied upon it to support many statutes dealing with a gi’eat variety of municipal concerns. Mortland v. Christian, 23 Vroom 521; In re Haynes, 25 Id. 6, 28; Lewis v. Moore, Id. 121; In re Sewer Assessment for Passaic, Id. 156; Owens v. Fury, 26 Id. 1; Matheson v. Caminade, Id. 4; Baker v. Delaney, Id. 9; Oler v. Ridgeway, Id. 10; McLean v. Gibson, Id. 11; Calvo v. Westcott, Id. 78; McLaughlin v. Newark, 28 Id. 298; S. C. on error, 29 Id. 202; Johnson v. Asbury Park, Id. 604.

The propositions thus established embody this rule applicable to the present case: that a law will be general although it embraces only a class of cities formed on the basis of their population according to the discretion of the legislature, provided the law deals merely with the structure or machinery of municipal government, and provided the class does not appear to have been formed illusively.

It remains to consider whether the statute now in hand comes within these two provisos. Its purport is to change the day for holding the municipal elections in cities of the first class—that is, in cities having a population exceeding one hundred thousand.

That the municipal elections form part of the machinery of the local government is too plain to be elucidated by anything beyond the statement of it. It seems equally evident that the body possessing the general legislative power to authorize or prohibit such elections possesses also, as an incident, the power to set the times for holding them, and unless there be express constitutional provision to the contrary, this incidental power must be as untrammeled as the principal. -No such provision exists in New Jersey. I am quite unable to perceive why, if the legislature can prescribe or abolish municipal elections in a designated class of cities, without regard to the existence of such elections in other cities, and in its absolute discretion, it cannot also, with like freedom of judgment, fix the day for holding them.

The last matter' for consideration is whether the line of demarcation between cities of the first class and other cities, which this statute adopts, is an illusive one—one “ contrived ■ with a view of' escaping the constitutional restriction.” . That it is not is established by several reasons—first, it was originally drawn as part of a general classification of all the cities -of ’the state soon after the adoption of this constitutional amendment, and with the sole purpose, I believe, of furnishing a rational basis for constitutional statutes adapted to the diverse needs of our very dissimilar municipalities; second, when drawn it was in recognition of a very wide gap between ■ the cities upon one side of it and those upon' the other, and although some cities then far below it have now nearly reached it, that must happen with any permanent limit and cannot render it illusory; and third, every branch of government has for many years and in numerous instances acted upon it as an honest-and reasonable division, unquestioned in this particular until the present controversy arose. -

I must therefore consider this statute as one dealing with a class of cities formed by the legislature in the exercise of its constitutional discretion, upon a basis reasonably related to the object of the law, and therefore must vote to reverse the judgment of the Supreme Court.

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Dissenting Opinion

Collins, J.

(dissenting). I base my dissent from the conclusion reached in this cause upon three fundamental’ rules evolved from the long discussion of the constitutional power of the legislature to classify towns when regulating their internal affairs by law.

IHrst. For legislation dealing only with the structure of municipal government—the formation.of the machinery by which municipal affairs are to be regulated—the municipalities of the state may be distributed into classes constituted on the basis of. population.

1 This rule was thus formulated in the Supreme Court in the case of McLaughlin v. Newark, 28 Vroom 298, 299, and was approved by this court in its affirmance of the judgment therein. S. C., 29 Id. 202.

The rule is now conceded, but its applicableness in this case is questioned. It is doubted that' a statute the only purpose, or the chief purpose, of ■which is to change the date of municipal elections deals at all with- the structure or machinery of municipal government. I have no such doubt. It seems self-evident that such a statute deals directly and solely therewith.

. Incumbency of office has the same place in the structure and machinery of municipal government that heart-action has in an animal mechanism. Without:it there can be no living organization. Elections and appointments to office are correlative. . Most of the judicial decisions leading to the establishment of the rule above stated turn upon statutes providing for change from one to the other of these methods of filling municipal office. In Warner v. Hoagland, 22 Vroom 62, the law sustained transferred from boards of commissioners to the common council important powers of government in all cities except those of the first class.. The law sustained in In re Haynes, 25 Id. 6, took from various boards elected by the people and placed in one board to be appointed by the mayor all the powers over public works in cities of the first class. A later law, never questioned, made that board.elective. Pamph. L. 1894, p. 524. Owens v. Fury, 26 Vroom 1, and other cases decided at the same term with that case, sustained, for other cities of a class based upon population, laws tranisferring from elective to appointive boards and officers various governmental powers. Surely, then, in judicial opinion, elections to municipal offices enter into the structure and machinery of municipal government. The fixing of a date for such elections is, of course, a necessity.

In Mortland v. Christian, 23 Vroom 521, this court adjudged that local elections are- subject, to legislative change on the, basis of population, and did so on the express ground that the act then under review concerned the machinery of administration. S. C., Id. 537. It is now observed that the change Of date there sustained was a mere incident in the scheme of administration provided- by the act, and the inference seems to be that, standing alone, a change would not have been upheld. T eannot think that such an inference was intended or that this court means to declare that, had the act left unchanged the date of election, a new date might not have been fixed by a separate act. There have been several such separate acts extant. In 1895 (Gen. Stat., p. 515) it was enacted, in a statute dealing with no other subject, that in all cities of the second class the annual or charter elections should be held on the second Tuesday of April, and in 1896 (Pamph. L., p. 169) it was enacted that the municipal or charter elections in cities of the first class should be held on the second Tuesday of April. It is this last-named act alone that justifies the change •of Newark’s charter election from autumn to spring, the former act (Pamph. L. 1892, p. 21) being plainly unconstitutional Can it be that, under the decision now rendered, Newark must return to October elections? It was very justly said by the present Chief Justice, in the case of State v. Borough of Clayton, 24 Vroom 277, 281, that while the legislature may, in •obedience to the constitutional requirement, pass a general law providing for a complete system of government for all municipalities, or for appropriate classes' thereof, it is clear that it may also pass a series of co-related acts having the same purpose. I must assume that an act like that now •overthrown would have been sustained had it fixed some' other day for municipal elections than that already set apart by law for state and county elections. If so it would have 'been so sustained by force of the rule I have stated, for on' nothing else can it rest.

But it is argued that in applying the rule the court must' look at every act dealing with the structure or machinery of municipal government to see if population bears relation to its particular subject. This would lead to a paradox destructive of the rule. The courts have adjudged that population bears a reasonable relation to the structure and machinery of municipal" government. This becomes meaningless if we say instead that population bears a reasonable relation to so much of the structure and machinery of municipal government as bears a reasonable relation to population. I find no support in the adjudged cases for the suggested limitation.The formative judicial opinion out of which the rule was finally evolved is only useful as showing the continuous progression that led to that result. For example, in the Haynes case, relied on as an instance of this limitation, Chief Justice Beasley, in vindicating a statute by which in cities of the first class the legal machinery for controlling streets and water-supplies was regulated (25 Vroom 6), did indeed confine himself to showing the relation of those interests to population. He needed to go no farther, but in the later case of Matheson v. Caminade, 26 Vroom 4, 6, he uses language in which I find no hint of limitation. There he says: “ It has been decided that, with regard to structural forms of government and administration, the municipalities of the state may be distributed, for legislative action, into classes constructed on the basis of population. The ground plainly expressed, for this conclusion was that population in this connection is a connotative term, signifying not only the populousness of a city, but, as well, the magnitude of its public concerns, and hence a fair classification on such basis was a distribution of cities which, in -all essentials, were of different grades, manifestly requiring different forms of government, and hence the choice of adaptive forms of government was of necessity a legislative function.”

This is the only safe and sure rule. I trust the decision of the present cause has not overthrown it.

' Second. When the drawing of some line of demarcation between the larger and the smaller aggregations of people is justified, it is for the legislature to say where that line shall be placed.

- I quote this rule from the opinion of the Supreme Court in the case of Randolph v. Wood, 20 Vroom 85, 91. This court approved it when affirming judgment in that case (21 Vroom 175), and it is. not questioned now. Of course any classificatiou, to be valid, must be not illusive or evasive. The “ first class ” of the general act has been too often sustained by this court to be now challenged as an evasion of the constitution. I do not see the force of the observations made upon that subject in the course of the prevailing opinion in this cause.

Third. Legislation appropriate to-a proper class of municipalities is valid, though not extended to other classes to which it may be equally appropriate.

This' rule results from the reasoning and decisions in several cases, among them State v. Borough of Clayton, supra, followed and approved by this court in Road Commission v. Harrington Township, 26 Vroom 327.

Nb one has stated this rule more clearly and comprehensively than the learned judge who speaks for this court in the present case; In the case of Johnson v. Asbury Park, 29 Vroom 604, he says (at pp. 607, 608).: “An examination of the many statutes relating to cities of the several classes, towns, townships and boroughs will disclose diversities in the power granted to these several municipal bodies which, if tried by the criterion proposed by counsel in this case, viz., that no reason can be given for granting certain special powers to one class of municipalities and withholding them from other classes, would operate disastrously upon the system of municipal government in force in this state. 'The division of municipalities into cities, towns; townships and boroughs being a classification permitted by the constitution for the-purpose of local government, the powers to be conferred upon these bodies severally which pertain to the ordinary functions of local government must rest in legislative discretion.”

The'same reasoning applies, of course, to statutes that relate to the structure and machinery of municipal government.

If, therefore, the act now impugned' is invalid; it .must be so because of some vice sui generis. Such a vice js said to inhere in the combination 'of municipal with general elections. This, is the stress of the opinions of the Supreme Court in Hoos v. O’Donnell, ante p. 35, and of this'court in the present-case approving that decision. -The claim must be thus stated, viz., that in regulating by means of elections the formation of local government in a proper class of municipalities constituted on the basis of population, the legislature has not the constitutional power to fix for such elections a date already set apart by law for state and county elections or (by implication) for national elections, and to prescribe the use of a single ballot.

I had supposed the opposite of this proposition to be involved in Mortland v. Christian, supra. There a statute was upheld as constitutional which reorganized, in counties of a class based on population, their boards of chosen freeholders by substituting for a membership elected in the spring from townships and city wards one to be elected from assembly districts in November at the general election. True, the point was not specially ruled and perhaps was not fully presented by counsel, still it was of necessity involved in the case and it would seem that a resolution against it must subsist in the judgment.

Taking up the question as res nova, I cannot assent to the proposition. I see for it no basis whatever. In this court it is said that it has always been the policy of this state to keep the election of township, town and city officers separate from the election of state and county officers. This is a mistake. There have been previous instances of combining municipal with general elections. They were combined in Newark in 1851 (Pamph. L., p. 233, § 4), in Atlantic City in 1854 (Pamph. L.,p. 280, § 4), and in Elizabeth in 1867 (Pamph. L.,p. 333, § 2). In the last-named city the combination prevailed until the act of 1889. The legislature of 1889 did declare its policy, but the legislature of 1897, as to cities of the first class, adopted a different one by law, and the courts cannot review its judgment.

It should be noted that an incidental combination, as in the law upheld in Mortland v. Christian, supra, would be as much against the supposed policy invoked as separate legislation would be. I cannot distinguish the cases. Furthermore, the same reasoning would avoid statutes framed to include all towns as well as those limited to a class.

Whatever may be thought as to the wisdom or unwisdom of combining municipal with general elections, the subject is one of legislative policy and entirely within legislative control. The people have declared no such policy in the constitution.

In the Supreme Court, in Hoos v. O’Donnell, the case was rested by one of the judges upon a proposition not adopted in the prevailing opinion in this court in the present case but deserving of attention. That proposition is that the act overthrown infringes the implied constitutional restriction that all regulations of the elective franchise must be uniform and impartial. But this restriction has reference to such a right of suffrage as is guaranteed by a constitution or inherent in government by the people, and does not preclude local or special laws. For example, registry laws for large cities only have, in this state, existed unchallenged for more than twenty-five years, and I have no doubt that many of the other regulations now general would be unassailable, even if limited in operation.

But a sufficient answer to the objection is found in the fact that the restriction appealed to does not include municipal elections. There is in this state no constitutional right in the people to elect municipal officers. The legislature, in its control of municipal corporations, is limited only by various requirements that laws shall be general. If it is seen fit to adopt the method of popular elections in administering these governmental agencies and the requirements of generality are met by a proper classification, the voter cannot complain that his vote in that behalf is called for in some localities at the time of exercise of his general right of suffrage and in others at a different time.

The doctrine that voters at municipal elections cannot constitutionally be subjected to or protected from the influence of state or national politics unless all municipalities, or at least all of the same type, are included in every law that may have such an effect, will, if logically carried out, lead to startling results. The legislature, if it change the date of the general election, must avoid the date of local elections in every municipality in the state. It cannot, by classifying counties, yield to the powerful argument now current, that in populous communities local should be separated from general elections, for counties as well as towns come within the constitutional prohibition. When providing for local elections in classes of towns or counties otherwise permissible, it must conform to the will of the federal congress, for, under the constitution of the United States (article 1, section 4), the right to fix the time of election of members of the house of representatives rests in the national legislature and has been exercised. U. 8. Rev. 8tat. § 25. I cannot assent to a doctrine that of necessity leads to such results.

I find nothing in the opinions of the Supreme Court or of this court to convince me that the act of March 18th, 1897, is unconstitutional. It is unnecessary to discuss the other objections urged by counsel. It is sufficient to say that I find them all untenable and vote for reversal.

There is a suggestion in the opinion delivered for this court to which I think the court does not mean to stand committed,- and that is, that when a law is seen on its face to operate only in specified localities, it is to be deemed to be local or special until the contrary is shown. The presumption should be the other way, for every intendment is in favor of the constitutionality of legislation. Cooley Const. Lim. *182.

For affirmance—The Chief Justice, Depue, Lippincott, Van Syckel, Adams, Bogert, Hendrickson, Nixon. 8.

For reversal—Collins, Dixon, Ludlow. 3.