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49 Vroom.

Attorney-General v. McGuinness.

Article 4, section 1, paragraph 1, declares that "The legislative power shall be vested in a senate and general assembly." Section of the same article contains numerous limitations upon the powers of the legislature. The bill of rights contained in article 1 imposes other limitations. But it is significant that the whole of the constitution may be searched in vain for any specific provision guaranteeing to the people the right of local self-government, or prohibiting the legislature from exercising powers of local government through the instrumentality of commissions, however chosen.

Nor is the argument for the existence of the alleged right aided by the language of the preamble: "We, the people of the State of New Jersey, grateful to Almighty God for the civil and religious liberty which He hath so long permitted us to enjoy, and looking to Him for a blessing upon our endeavors to secure and transmit the same unimpaired to succeeding generations, do ordain and establish this constitution." For we are still to look to what is thereafter written for the specific provisions that the people did thereby ordain and establish for the purpose of accomplishing the aim of securing and transmitting the liberties of the people to succeeding generations. It is impossible to so construe the preamble as to write something into the constitution that its framers did not write into it. If we were to write "local self-government" into the constitution because we consider that to have been one of the means by which civil and religious liberty were theretofore enjoyed, we might with equal propriety write into it other things that at one time or another had been conducive to such liberty. And if we were thus to write local self-government into the constitution, in what terms should it be defined? What class of subjects should local government include? Should it include only local police regulations, strictly so called, or should it include schools, municipal water works, lighting works, sewers, and the like? And how is local self-government to be exercised; how are the members of the governing body to be chosen, and what are to be their qualifications? The argument drawn from the preamble, hazy as it is, has the double fault of provVOL. XLIX.


Attorney-General v. McGuinness.

78 N. J. L.

ing too much, if it proves anything, and of not defining what it proves.

Nor is the argument aided at all by that section of the bill. of rights which reads: "This enumeration of rights and privileges shall not be construed to impair or deny others retained by the people." This manifestly refers to personal and not to governmental rights. For full governmental powers were by this instrument conferred upon the government thereby established. The legislative power was thereby vested in the general legislature, maker of laws for the whole state and for every part of it, without any other limitation than that which the constitution itself in express terms imposes. As pointed out by Justice Van Syckel in Fritts v. Kuhl, 22 Vroom 204, "It is a postulate of a state constitution, which distinguishes it from the federal constitution, that all the power of the people is delegated by it except such parts of it as are specifically reserved."

It is the very essence of government that it shall operate upon those who are unwilling to be governed. The right of local self-government, if it exists, necessarily limits to that extent the powers of the general government; it creates in some sense and to some extent, an imperium in imperio. Such a limitation is not to be implied.

Nor does it seem to us that the reference in different parts of the constitution to the cities, townships and counties, either as senatorial or assembly districts, or as judicial districts, or as districts for the purpose of qualifying voters or the like, has anything to do with the question how the internal affairs of these several districts shall be governed.

Our municipalities are not imperia in imperio; they are but agencies of the state erected in and for limited parts of its territory, whose governments are established by the state for limited purposes that are of particular concern to the immediate inhabitants, but at the same time are of concern to the people at large.

But counsel for the defendant in error contends that the right of local self-government has existed in the people of New Jersey from time immemorial; that it lies at the founda

49 Vroom.

Attorney-General v. McGuinness.

tion of our institutions; that it was not surrendered by the people of the legislature, and is therefore impliedly protected by the constitution.

The whole of the argument favorable to this view of the matter is summed up in the well-known Michigan case of People v. Hurlburt, 24 Mich. 44. The principal circumstances from which the court there found in the constitution of that state implied restrictions upon the power of the legislature, as regards local government, were, first, that the constitution was adopted in view of a well-understood and tolerably uniform system of local government existing from the earliest settlement of the country, and secondly, that the liberties of the people were generally supposed to spring from and to depend upon that system.

With respect to the second point, whatever may be the historical origin of the liberties of the people, they seem to be dependent at the present day upon the right of the people to participate by suffrage and by representation in the government which they themselves have established under the guaranties of a written constitution. The absence from such written constitution of any guaranty of local self-government is a cogent argument against its existence as a right.

With respect to the first point, the constitution of this state was not adopted in view of any uniform system of local governments, for we have had none such; certainly no uniform recognition of the right of local self-government that is here contended for.

From the commencement of our existence as a state, under the constitution of 1776 until the adoption of the present constitution in 1844, municipal charters in considerable number were enacted by the legislature without any semblance of uniform adherence to the principle of local self-government. Counsel for plaintiff in error has submitted references to many of the charters of that period, among which the following may be mentioned.

The town of New Brunswick was incorporated in 1784. Pat. L., p. 56. The first officers were named in the act; their successors were to be chosen by the qualified voters of the city.

Attorney-General v. McGuinness.

78 N. J. L.

A new charter was substituted in 1801. Pamph. L., p. 244. This provided that the mayor, recorder and aldermen should be appointed by the council and general assembly of the state in joint meeting and commissioned by the governor; councilmen to be chosen by the local electors. The city of Burlington was incorporated in 1784. Pat. L., p. 70. The mayor, recorder and aldermen were to be appointed by the council and general assembly in joint meeting. The city of Perth Amboy was incorporated in 1784. Pat. L., p. 64. The charter provided that the mayor, recorder and aldermen should be appointed by the council and general assembly. So with the charter of the borough of Elizabeth, enacted in 1789. Pat. L., p. 94. The city of Trenton was incorporated in 1792. Pat. L., p. 116. Its charter provided that the mayor, recorder and aldermen were to be appointed by the general assembly of the state in joint meeting, and commissioned by the governor, with assistants, and a clerk, assessor and collector, to be chosen by the freeholders and inhabitants of the city. The borough of Princeton was incorporated in 1813. Pamph. L., p. 7. The mode of choosing the officials was the same as in the case of Trenton. Jersey City was incorporated by Pamph. L. 1820, p. 86. The first board of selectmen were appointed by the act, to serve until their successors were chosen by the freeholders and other taxable inhabitants. Bordentown was incorporated by Pamph. L. 1825, p. 25, the first officials being appointed by the act, their successors to be elected. On the other hand, the city of Camden, incorporated in 1828, and the city of Newark, incorporated in 1836, had from the beginning the power of choosing their own officials. Pamph. L. 1828, p. 193; Pamph. L. 1836, p. 185.

These charters were likewise different one from the other in respect to the powers that were conferred upon the several municipalities.


We thus see that prior to the adoption of our present constitution no uniform system of local governments had been established, nor was there any general recognition of the right of local self-government. Municipal powers were conferred or withheld as the legislature deemed proper. And the privilege

49 Vroom.

Attorney-General v. McGuinness.

of local self-government was likewise conferred in some instances and withheld in other instances, according to the wisdom of the lawmakers.

Our present constitution is therefore not to be construed as if it were adopted in view of any established and uniform system of local self-government.

As already observed, that instrument may be searched in vain for any provision guaranteeing that privilege to the people.

The course of legislation under the constitution of 1844, and the character of the amendments that were adopted by the people after thirty years of such legislation, demonstrate, as we think, that the power of the general legislature over local municipal establishments is not hampered by any limitation guaranteeing local self-government.

During thirty years following the adoption of the constitution, the legislature repeatedly established, by special laws, commissions for the government and regulation of local and municipal affairs, without conferring upon the people of the locality the right of selecting the commissioners, and without even prescribing that the commissioners should be resident in the locality particularly affected. In numerous instances the legislature, in the act, designated by name commissioners to exercise powers of local government. In many cases, it is true, the succeeding commissioners were to be chosen by the people, but this was by no means the invariable rule. In some cases vacancies were to be filled by the governor, in other cases by a justice of the Supreme Court, or by the Circuit Court or Court of Common Pleas. Sometimes the act provided that the remaining commissioners should fill vacancies, sometimes that they should only nominate, and that some other body should make the appointment to fill a vacancy. In some notable instances, the people had no direct voice in the choice of either the first or succeeding commissioners.

The acts of legislation referred to are so exceedingly numerous that a detailed reference to them would unduly prolong this opinion. The learned counsel for plaintiff in error, at the request of the court, and with very great labor and

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