McArdle v. Mayor of Jersey City

The opinion of the court was delivered by Depue, Chief Justice.

The board of aldermen of Jersey City, a city of the first class, passed a resolution May 7th, 1901, to the effect “That the licenses for keeping of inns and taverns and the sale of liquors, to be issued by this board on the first day of July, nineteen hundred and one, shall be issued for the period of one year from that date, and shall be *595 issued only upon the payment of the full amount of one year’s license fee for each license issued.” McArdle, a resident and taxpayer of Jersey City, sued out a certiorari to set aside this resolution as violating the act providing for an excise department in cities of the first class. Dickinson was subsequently admitted as a party prosecutor. The Supreme Court on this certiorari adjudged that the resolution of the board of aldermen should be set aside, on the ground that it was in conflict with the act under consideration. This writ of error is brought to review the judgment of the Supreme Court, assigning as error that the said act is unconstitutional — first, because it is a private, local and special law; second, because it violates the provisions of article II., section 1, of the constitution.

The act is entitled “An act to establish an excise department in cities of the first class in this state.” It applies only to cities of the first class. The contention that it is based upon an insufficient classification is untenable. A classification on the basis of population in statutes relating to the machinery and powers of municipal government is legitimate where population bears, as it does in this instance, a reasonable relation to the necessities and proprieties of the municipal government. Wanser v. Hoos, 31 Vroom 482 . This doctrine has been applied to sustain statutes relating to the police, powers of municipalities, using that expression in its broadest sense. Warner v. Hoagland, 22 Vroom 62 ; Mortland v. Christian, 23 Id. 521; In re Haynes, 25 Id. 6; In re Sewer Assessment for Passaic, Id. 156; Owens v. Fury, 26 Id. 1; Matheson v. Caminade, Id. 4; Baker v. Delaney, Id. 9; McLean v. Gibson, Id. 11; Wood v. Atlantic City, 27 Id. 232; McLaughlin v. Newark, 28 Id. 298; 29 Id. 202.

This legislation does not infringe upon article IV., section 7, paragraph 11, of the constitution, which interdicts special laws regulating the internal affairs of towns and counties.

A question of more importance arises under the assignment of error that this act violates article II., section 1, of the constitution, and for that reason is void. Article II., section 1, regulates and secures the right of suffrage. It declares that *596 “every male citizen of the United States, of the age of twenty-one years, who shall have been a resident of this state one year, and of the county in which he claims his vote five months, next before the election, shall be entitled to vote for all officers that now are or hereafter may be elective by the people.”

The construction of this constitutional provision, so vital to the existence of popular government, is not at all in doubt. The constitutional mandate is clear and distinct that every qualified voter “shall be entitled to vote for all officers that now are or hereafter may be elective by the people.” So far as the construction of this constitutional mandate has been presented to the courts of this state there is entire unanimity in its construction. The decisions on that subject arose under these circumstances: The constitution provides that the members of assembly apportioned to any county shall be selected by the legal voters of the county. In State v. Wrightson, 27 Vroom 126, 199 , it was held that an act of the legislature providing for the election in assembly districts of members of assembly apportioned to any county was unconstitutional and void. This decision was made on the ground that to every qualified voter was secured, by the fundamental law, the right to a voice in the election of all officers which, by the constitution or otherwise, are elective by the class of legal voters to which he belongs. In Allison v. Blake, 28 Id. 6, it was decided by the Supreme Court that all persons within the class designated by the constitution are entitled to vote for all officers elective by the people, whether the offices to be filled be created by the constitution or by legislation; and that the class of voters who shall be entitled to the elective franchise cannot be diminished or enlarged by the legislature; and that, consequently, a statute which confined the right to vote for road commissioners to the freeholders of the districts, excluding qualified voters who were not freeholders, was unconstitutional. The same principle was adjudged in Kimball v. Hendee, Id. 307, with respect to the election of school trustees. The constitution of Ohio contains a provision similar to ours, that qualified voters shall be “entitled to vote at *597 all elections.” It was held by the courts of that state that the constitutional right to vote at all elections is denied by a statute which provided for the election of four members of the board of police commissioners, but denied to any elector the right to vote for more than two persons for such commissioners. State v. Constantine, 42 Ohio 437 ; 9 Am. & Eng. Corp. Cas. 39. Indeed, the language of the prescription on this subject in our constitution is so explicit as not to admit of any other construction. In Allison v. Blake, 28 Vroom 6, 9 , Chief Justice Beasley declared that “the constitutional language is clear and unambiguous, and there is not a syllable of the instrument that throws it in doubt. In the presence of such a fact, there is no room for construction. Under such circumstances, the rule of reason, as well as of law, peremptorily requires that the plain language of the primary law must be taken to express the purposes of its framers.”

The act now under examination provides for a board of excise commissioners to consist of four persons, each of whom shall be elected at large in such city; and, by section 2, it is provided that “within the time provided by law, before the election held next after the passage of this act for the election of municipal officers in any city of the first class, two persons shall be nominated for excise commissioners, one for a term of two years and one for a term of one year, by each political party or petitioning body of citizens having the right by law to nominate candidates for municipal offices, to be voted for at such election; and at such election the two persons receiving the highest number of votes for excise commissioner for each of said respective terms shall be the duly elected excise commissioners for the terms so specified; such commissioners shall be elected in the same manner as other municipal officers in said city, subject, however, to this proviso: that no ballot shall contain the name of more than one commissioner for each of said terms.” The section quoted relates only to the first, election. Section 3 provides for future elections— that two members of the board shall be nominated in the manner specified in section 2, but that no ballot shall contain the name of more than one person for excise commissioner.

*598 On its face, this act is plainly an infringement of that constitutional provision which secures to qualified voters the elective franchise.

■ That the members of this board, when chosen by the people, are officers, is entirely clear. The act provides that these commissioners shall be elected in the same manner “as other municipal officers,” and shall hold “office” for two years and have an annual salary of $1,000 each, and that each commissioner, before he enters upon the duties of his office, shall take and subscribe an official oath. These officials, elected as municipal officers at a popular election, are also charged with responsible and important public duties. In State v. Deshler, 1 Dutcher 177, 182, trustees of school districts, constables and other township officers were declared to be officers within the meaning of this constitutional provision. A similar ruling was made with respect to school trustees, in Kimball v. Hendee, supra, and with respect to road .commissioners, in Allison v. Blake, supra. In 5 Cent. Dict. 4091, tit. “Office,” an office is described as “the right and duty conferred on an individual to perform any part of the functions of government, and receive such compensation, if any,_ as the law may affix to the service.”

The argument of the counsel for the defendants in error that this is not an election, but an appointment by the legislature of persons to perform the duties of excise commissioners, who shall be selected in the manner pointed out by the act, if sound (which it is not), would enable the legislature to tamper with the elective franchise at its will, and the constitutional provision which was designed to secure to the qualified voters of the state the elective franchise would be made a nullity.

It is contended that if those parts of sections 2 and 3 which provide that no ballot shall contain the name of more than one commissioner, gives the act an unconstitutional effect, these words may be stricken out, leaving a board of excise commissioners consisting of four persons elected by the voters under the General Election law. The question is whether the court will be justified in making such a judicial excision of *599 an act of tlie legislature, which seems to be complete in all its parts and evinces a purpose inconsistent with that which would be accomplished by such a mutilation of the statute. “It is undoubtedly true that there may be cases where one part of a statute may be enforced as constitutional, and another be declared inoperative and void because unconstitutional; but these are cases wjiere the parts are so distinctly separable that each can stand alone, and where the court is able to see and to declare that the intention of the legislature was- that the part pronounced valid should be enforceable, even though the other part should fail. To hold otherwise would be to substitute for the law intended by the legislature one which they may never have been willing, by itself, to enact.” Poindexter v. Greenhow, 114 U. S. 270, 304 . “But if the different parts of the act are so intimately connected with, and dependent upon, each other as to warrant a belief that the legislature intended them as a whole, and that if all could not be carried into effect the legislature would not have passed the residue independently, and some parts are unconstitutional, all the provisions which are thus dependent upon each other must fail.” Johnson v. State, 30 Vroom 535, 539 . The title of the act is quite decisive on this subject. It is entitled “An act to establish an excise department in, cities of the first class in this state.” It expressly provides that the excise department should consist of four persons, elected in the manner “as herein provided.” That it was the purpose of the legislature, in passing this act, to abolish the former method of constituting this board is manifest. Until commissioners are elected pursuant to the provisions of the act, there can be no excise department in the city to execute any of the provisions of this statute. The election of a board in the manner provided by the act is essential to “establish an excise department.” It is quite clear, from the entire act. that an excise board consisting of four members, elected by the electors at large, was not contemplated-in this legislative scheme.

The manner in which this board is to be established being *600 in violation of the constitution, the entire scheme of legislation embodied in the act must fail.

It is also contended, in the same connection, that the proper mode of relief is by all the qualified voters in the county presenting ballots at the election containing the names of the whole number of commissioners to be elected, and therefore that this court should not entertain this writ of error. It is apparent that such a procedure would give rise to the greatest confusion. How are the qualified voters to procure the printing of such ballots, and what assurance can be had that even a majority of the qualified voters would adopt this method of securing their right of suffrage, or that the election officers would receive the ballots? Embarrassment arising in this manner, induced the Supreme Court, in State v. Wrightson, 27 Vroom 215 , to entertain a proceeding, by way of man-damns, without a previous demand or refusal. It is there said that “to postpone the commencement of these proceedings [that is, by mandamus] until the time preceding the annual elections, at which the county clerk and the clerks of the cities and townships of the county are required to perform the duties devolved upon them under the election laws, would effectually prevent proceedings then instituted being practically of any avail.”

The defendants in error prosecuted their writ of certiorari, and brought up to the Supreme Court a resolution of the board of aldermen that, in the absence of this act, was regular and valid. The Supreme Court, on the hearing of the writ of certiorari, set aside that resolution, on the ground that such municipal action was not permitted by the act in question. That judgment of the Supreme Court is before this court by the writ of error, and we cannot determine the propriety of the judicial action of the Supreme Court without considering the force and effect of the act under consideration, and, consequently, its validity under constitutional prescriptions.

The judgment of the Supreme Court should be reversed, and this act declared unconstitutional in its entirety.

*601 For affirmance — None.

For reversal — The Chancellor, Depue (Chief Justice), Van Syckel, Garrison, Collins, Fort, Garretson, Bogert, Adams, Vredenburgh, Voorhees, Vroom. 12.