O'Hanlon v. Calvert

The opinion of the court was delivered by Garrison, J.

If effect is given to the act of April 9th, 1913, the ballots printed for use at the election to be held on the 2d day of November next, must not contain the name of any candidate for city councilman in the city of Elizabeth. Such is the provision of such act of the legislature. Upon the authority of the decision in Lang v. Bayonne, 74 N. J. L. 455, the city clerk was and the county clerk is bound to accept that statute as a valid act of legislation binding upon them. The gist of that decision is: “The provisions of a solemn *35 act of the legislature, so long as it has not received judicial condemnation, are binding upon the citizen.”

The objections that are now urged against the use of the writ of mandamus to compel the county clerk to obey this staiuie amount therefore to this: That the city clerk by

violating this rule of law may justify the county clerk in a like violation and thereby place it beyond the prerogative power of this court to arrest such second violation by the mandate of its peremptory writ commanding a statutory oíficiál to comply with a statutory requirement. If such were the law, it would be as unwholesome in principle as it would be intolerable in practice. Mandamus lies.

Upon the present application we are required by reason of our judicial office to do what the city and county officials are not authorized to do, viz., to determine whether the act of 1913 is an unconstitutional enactment. The shortness of the time between the argument of this case and the election day makes promptness of decision of far more importance than the form in which such decision is cast. I shall, therefore, merely suggest in the briefest possible way the grounds upon which we hold the act in question to be constitutional.

The case of Attorney-General v. McKelvey, 78 N. J. L. 623, is authority for the doctrine that in legislation relating solely to the structure and machinery of government cities may be classified upon the basis of their population according to the discretion of the legislature. If an illusive subclassifieation be made the statute will not be saved by the fact that it concerns the machinery of government, but if such sub-classification is based upon a substantial criterion germane to the subject of legislation, and hence not illusory the circumstance that such legislation is limited to cities of a certain population will not render it unconstitutional if it relate solely to the structure and machinery of government.

In the present case, the criterion of the subelassification, viz., the existence of a board of public works, is a substantial one strictly germane to the subject of the legislation, viz., the reduction of the number of city councilmen; the act, there *36 fore, is not unconstitutional because it applies only to cities of the second class.

Having reached this conclusion, we are, of course, of the opinion that such a view was one that it was permissible for the legislature to hold. If it was, the act must be sustained upon the rule laid down in the case of Attorney-General v. McGuinness, 78 N. J. L. 346, which was approved by the Court of Errors and Appeals in Attorney-General v. McKelvey, and followed by that court in the recent case of Hudspeth v. Swayze (Chancellor-Sheriff-Jury case), 85 Id. 592.

The contention that the second section of the act is not within its title does not require present consideration; tire provision of that section is either incidental to the main object of the act or extraneous thereto; if the former, it is within the title; if the latter, it is susceptible of excision.

The argument that effect cannot be given to the act or that its classification is illusory because the term “a board of public works” is not legislatively defined is without substance. On the same day the legislature provided, by chapter 326, for the creation of a board of public works in any city of the second class that adopted such provision upon a referendum to its voters. In this act the powers and duties of the body thus created and denominated are legislatively defined. Elizabeth has adopted this act.

Eor present purposes, therefore, the words used in the present act are sufficiently defined to serve as a basis of classification; what cities come within this class, would, I apprehend, depend not upon a mere question of nomenclature, but upon the existence of a body having substantially similar powers; all such are within its scope without regard to nomenclature. It is not a question of play upon words.

In conclusion, nothing that has been advanced in the argument of respondents’ counsel has convinced us that chapter 32-5 of the laws of 1913 is not a constitutional statute, or that the county clerk should not in the printing of the ballots be required to give effect to it.

To this end a peremptory writ of mandamus will issue in accordance with the prayer of the relator’s petition and the *37 rule to show cause allowed thereon; nothing in our conclusion, however, has any reference to the filling of the vacancy in one of the wards occasioned by death.