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Attorney-General v. McGuinness.

78 N. J. L.

lector by the board of chosen freeholders on December 20th, 1906, for a term of two years, expiring December 7th, 1908, and until the appointment of his successor. On December 7th, 1908, the board of freeholders appointed Booth as his successor. McGuinness claimed that he was protected from removal from office by force of the so-called Civil Service law, found in Pamph. L. 1908, p. 235.

Section 2 of this act provides that "all officers, clerks and employes now in the employ of the state or any municipality adopting this act, coming within the competitive or non-competitive class of the civil service shall continue to hold their offices or employments, and shall not be removed therefrom except in accordance with the provisions of section 24 hereof," &c. Section 24 provides, in a case such as that of McGuinness (if he is in other respects subject to the act), that there shall be no removal from office until the officer shall have been furnished with a written statement of the reasons for such action and been allowed a reasonable time in which to make written answer thereto. Section 30 provides that "any municipality of this state may adopt the provisions of this act by ordinance duly adopted by the governing body of such municipality, or by the petition and vote of the qualified voters of such municipality as hereinafter provided." The next section makes it the duty of the governing body to submit the question of the adoption of the act to the legal voters of the municipality upon being petitioned by a certain number of percentage of the legal voters therein.

This act was approved April 10th, 1908, and took effect immediately. On May 13th, in the same year, the board of freeholders of Essex county undertook to adopt its provisions for that county.

At the trial, some constitutional objections were raised against this enactment, but the trial justice deemed it unnecessary to pass upon them, because he held that section 2, which protects officers, clerks and employes from removal except for cause, does not apply to the case of officers whose terms are established by law; the result being to deprive the incumbent, McGuinness, of the protection of the act. It was also held

49 Vroom.

Attorney-General v. McGuinness.

that the provisions of the act relative to the appointments of new officers do not apply to such an office as that of county collector, which has a term established by law; and there being no other cloud upon the title of the relator to office, an affirmative judgment establishing his title was added to the judgment of ouster.

Justice Swayze's conclusions were based upon the reasoning set forth in the opinion delivered by him in Attorney-General, ex rel. McKenzie, v. Elliott, 48 Vroom 43.

Upon the first argument of the cause in this court, constitutional questions, as well as questions of construction, were raised, and we, deeming that an ampler discussion of some of the fundamental questions should be had, ordered a reargument upon two questions, viz.:

First. Under our constitution and form of government, may the legislature delegate municipal governmental powers to a commission whose members are not chosen from among the citizens or inhabitants of the municipality, even though the exercise of such powers in the municipality is made to depend upon the consent of the voters thereof?

Second. Assuming the first question is to be answered in the affirmative, may the legislature delegate the option of acceptance to the governing body of the municipality instead of to the voters thereof?

The first question assumes that the Civil Service law impairs to some extent the privilege of local self-government in those municipalities by which the law is adopted, and raises the query whether this privilege is a privilege merely conferred by the legislature and subject to be withdrawn or limited by the same authority, or whether it is a fundamental right of the people, either because guaranteed by the constitution or because existent anterior to the adoption of that instrument, and persisting in spite of its adoption.

Upon consideration we adhere to the view that the assumption is well founded; that the act does confer upon the civil service commission some powers of municipal government. Respecting such municipalities as adopt the act, section 1 prohibits appointments to and promotions in the civil service

Attorney-General v. McGuinness.

78 N. J. L.

except according to merit and fitness, to be ascertained, as far as practicable, by competitive examinations, and makes all appointments, transfers, reinstatements and promotions subject to the prescriptions of the act. Section 2 has already been adverted to. Section 3 provides that the governor, with the advice and consent of the senate, shall appoint four residents of the state to be civil service commissioners. Section 8 empowers this commission to prescribe, amend and enforce regulations for carrying into effect the provisions of the act, and gives to the commission, among other things, ample power to investigate the action of any person in the paid employ of such municipality in respect to the execution of this act. Section 10 requires all officers of such municipality to conform to, comply with and aid in carrying into effect the provisions of the act and the rules and regulations of the civil service commission, and prohibits the selection or appointment of any person for appointment, employment, promotion or reinstatement except in accordance with the provisions of the act and the rules and regulations prescribed thereunder. Section 11 divides the civil service of such municipality into the classified service and the unclassified service, the former of which is and the latter not subject to the act. Subsequent sections provide for dividing the classified service into four classes, to be designated as the exempt, the competitive, the non-competitive and the labor classes, which classification may be changed from time to time as the commission shall deem proper, and contain elaborate provisions for examinations as to fitness for positions both in the competitive and the non-competitive classes, or in any other class where examinations are required to be held. Section 18 prescribes that such examinations shall be free to all citizens of the State of New Jersey, with the limitations specified in the rules of the commission as to residence, age, sex, health, habits and moral character. By the same section, the commission is to control all examinations, and may designate the examiners, or may themselves act as examiners. Section 20 provides that the commission shall prepare a register of eligibles, and section 21 provides that appointments shall be made from this list. Section 23 permits

49 Vroom.

Attorney-General v. McGuinness.

the commission to give or withhold consent to the transfer of a person from one office or position in the classified service to another. Section 25 requires the commission to keep an official roster of the classified civil service of each municipality that may adopt the provisions of the act, and requires appointing officers to furnish the materials for the keeping of such roster.

These statutory provisions, and especially those respecting the making, amendment and enforcement of rules and regulations, the control to be exercised by the commission over examinations of applicants, and the discretion about permitting transfers, seem to us to give to the state commission a participation in the government of the several municipalities that adopt the act. If a commission with similar powers were established in and for each separate municipality, it would, beyond doubt, be considered as a branch or department of the municipal government. An instance of such an act is found in Pamph. L. 1905, p. 227.

It is argued that the object of the Civil Service law of 1908 is to secure efficient administration of the affairs of the municipalities, and that this is a matter of general and not merely of local concern. Conceding this, the question remains, what mode has the legislature adopted for this object? If it had merely adopted a standard of fitness, it would have left the local governmental establishments intact, only setting a rule, for their guidance. But in enacting that the maintenance of this standard and the method of its application in particular instances shall be confided to the discretion of a state commission, it has to that extent conferred upon such commission a participation in the local government, and delegated to the commission municipal governmental powers. This feature distinguishes the present act from the Veteran act (Pamph. L. 1897, p. 142), and from statutes that require appointive boards in the municipalities to be equally divided politically, and the like.

Finding, therefore, that the state civil service board does, by virtue of the act of 1908, have some participation in the local government of the several municipalities that accept the

Attorney-General v. McGuinness.

78 N. J. L.

act, the first inquiry is whether the legislation is vitiated by the fact that the board is not chosen by the municipality nor from among its citizens or inhabitants.

The broad question is whether in our system the right of local self-government is guaranteed to the people of the several political divisions of the state, so that the legislature has no power to provide for the government of those divisions by commissions unless such commission is chosen by the people themselves.

For, upon consideration, we must reject the suggestion that the mere appointment of the members of a commission from among the citizens or inhabitants of the municipality affected is any guarantee of local self-government. In order that selfgovernment may amount to more than a name, it is essential that the officials to whose discretion the powers of government are confided should be representative of the will of the governed; that they should be chosen by the electors of the locality affected, and thus impressed with a sense of direct responsibility to the people.

Nor does the circumstance that the acceptance of the system is made to depend upon the previous consent of the electors of the municipality make the system a system of local selfgovernment. For the principle of local self-government does not contemplate nor permit that the voters by a single election shall take from themselves and those who are to come after them the control over their affairs for an indefinite time.

Accepting, therefore, the phrase "government by commission" as sufficiently describing a method of local government by a governing body not periodically chosen by the local electors, the question is whether it is prohibited by our fundamental law.

Now, the government of this state was established by the people upon the basis of a written constitution that assumes to declare certain rights and privileges of the people, to establish and define the right of suffrage, and to distribute the powers of the government into three distinct departments, the legislative, executive and judicial, to define the powers of these departments and impose limitations thereon.

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