Board of Chosen Freeholders v. Stevenson

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 — 183 — 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 — 184 — 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 — 185 — 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 — 186 — 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 noticeSuch, 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. Whether187 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 — 188 — 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.