Wanser v. Hoos

— 524 — 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 — 525 — 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. — 526 — 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 classifi — 527 — cation.” 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 — 528 — 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 — 529 — 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.;.. — 530 — 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,” — 531 — ■ 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 — 532 — 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 — 533 — 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 — 534 — 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 men — 535 — tioned 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 — 536 — 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 ex537 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.