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49 Vroom.

Attorney-General v. McGuinness.

Hart v. Atlantic City, are all harmonized by the recognition of the fact that from a constitutional standpoint the acceptance by a municipal corporation of the provisions of a legislative act is one thing and that the delegation of legislative power to municipal corporations is quite another and different thing.

Of the former, i. e., “referendum statutes,” Paterson v. The Society is the leading example; of the latter, i. e., "statutes delegating powers of local government," the most conspicuous illustration is Paul v. Gloucester County, in which Mr. Justice Van Syckel said: “The validity of this law may be rested securely upon the right of the legislature to delegate the powers of local government to political subdivisions of the state.”

In this opinion of Mr. Justice Van Syckel Justices Depue and Dixon concurred. It is therefore a most significant fact that when at the very next term after the decision of Paul v. Gloucester County these same three justices, sitting in the Supreme Court, decided the case of Warner u. Hoagland, in which the statute was a referendum act, the submission of the statute to popular vote 'was explicitly vindicated in Mr. Justice Depue's opinion upon the ground that “A provision in a municipal charter or in a supplement to it, that it should not take effect unless accepted by the inhabitants is not a delegation of legislative power," the exact antithesis of the ground of decision in Paul v. Gloucester County.

And throughout his opinion Mr. Justice Depue adopts the doctrine and almost the precise words of Chief Justice Green in Paterson v. The Society, saying in conclusion: "The acceptance is submitted to the inhabitants of the municipalities as corporators, and not as a sovereign part of the people, and their vote is an act of acceptance and not of legislation.”

The case now before us for decision is like Warner v. Hoagland and Paterson 1. The Society in that the legislation involved is a referendum statute and not a delegation of legislative power; and a review of the cases in which such statutes were involved, from the time Paterson v. The Society was decided down to the present time, reveals no case in which

Attorney-General v. McGuinness.

78 N. J.L.

the submission of such a statute, otherwise than to the voters, has been sustained, with the single exception of DeHart v. Atlantic City in the Supreme Court.

This one Supreme Court decision is therefore the only authority for the right of the legislature to submit the acceptance of such a statute to the governing body of a municipality. It is true that this case came to this court on error, and that the judgment was reversed, but not upon the point now under consideration, touching which the only reference in the opinion of Chancellor McGill is the query: "If the adoption of the act may be by a city council why not by a single city official ?” De Hart v. Atlantic City, 34 Vroom 223.

This Supreme Court decision, liowever, runs directly counter to the fundamental doctrine of Paterson v. The Society, which may be summarized to be that the legislative will may be imposed as law upon municipalities, but, if any other will is to intervene between the legislature and such municipalities, it must be the will of the people who are to be governed by such law and not an alien will, even though it be that of the governing body for the time being of the municipality. That this is the logical result of the doctrine that we have adopted has been sufficiently pointed out, and it must be equally clear that such doctrine is effectually subverted, if some other will than that either of the legislature or of the people can be called in to eke out the constitutional enactment of a law.

Paterson v. The Society called for the application of this doctrine only to the extent that a municipal charter enacted to take effect upon its acceptance by the electors of the municipality was a constitutionally enacted law; the case now before us calls for the application of the same doctrine to the extent that a supplemental municipal charter enacted to take effect on its adoption by the law-making body of the municipality is not a constitutionally enacted law.

No case calling for this application of the doctrine of Paterson v. The Society has hitherto come to this court, with the exception of DeHart v. Atlantic City, in which the point was not considered, or, at least, was not decided.

49 Vroom.

Attorney-General v. McGuinness.

In the decision of the present case, therefore, I am of opinion that the decision of this point in DeHart v. Atlantic City, in the Supreme Court, should be overruled, and the true doctrine applicable to the case before us declared to be as herein stated. From this it results that a statute in the nature of a supplemental charter that is enacted to take effect upon its adoption by the governing body of a municipality is not a constitutionally enacted law

This result leads in the present case, not to the invalidation of the Civil Service law, as a whole, but merely to the excision of those provisions that are conditioned upon the adoption of the act by municipalities.

The two classes of provisions are independent and clearly severable under the rule stated in Attorney-General v. Anglesea, 29 Vroom 372. The statute itself, in its thirty-third section, expressly provides that "in case for any reason any section or any provision of this act shall be questioned in any court and held to be unconstitutional or invalid, the same shall not be held to affect any other section or provision of this act.”

With the force and effect of this section and also with the severability, by judicial rule, of the two methods contained in the act for its adoption by municipalities, we are not called upon to deal or to express any opinion. The statute in the present instance having been adopted by the governing body and being on that account held to be invalid as a protection to the plaintiff in error, further questions that might arise on some other state of facts are of no concern to him.

The construction placed upon the act by Mr. Justice Swayze in the Supreme Court, in so far as the office in dispute is concerned, meets with our approval, but with regard to the views suggested as to the office of Vice Chancellor in McKenzie v. Elliott, 48 V room 13, we wish to be understood as expressing no opinion.

In accordance with the foregoing views, the judgment of the Supreme Court is affirmed.

At the request of three members of the court, the votes upon the following questions were taken separately: VOL. XLIX.

25

Attorney-General v. McGuinness.

78 N.J.L.

1. Is the act of April 10th, 1908, unconstitutional in so far as it provides that in municipalities that adopt the act the appointment of certain officers and employes shall be regulated in part by a commission, the members of which are not appointed by or from among the electors or inhabitants of such municipalities respectively?

Yes-None.

No—TIE CILANCELLOR, CHIEF JUSTICE, GARRISON, REED, TRENCHARD, PARKER, BERGEN, VOORHEES, MINTURN, BOGERT, VROOM, GRAY, DILL, CONGDON, JJ. 14.

2. Is the act unconstitutional in so far as it is made to take effect in municipalities upon its adoption by the governing body thereof?

Yes—THE CHIEF JUSTICE, GARRISON, REED, TRENCHARD, PARKER, BERGEN, VOORHEES, MINTURN, BOGERT, VROOM, GRAY, DILL, CONGDON, JJ. 13.

NO—THE CHANCELLOR. 1.

3. Shall the judgment of the Supreme Court be affirmed ?

Yes—THE CHANCELLOR, CHIEF JUSTICE, GARRISON, REED, TRENCHARD, PARKER, BERGEN, VOORHEES, MINTURN, BOGERT, VROOM, GRAY, DILL, CONGDON, JJ. 14.

No-None.

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ELIJAH DALLETT BOWER, PLAINTIFF IN ERROR, v. ELIZ

ABETH G. BOWER ET AL., EXECUTORS, DEFENDANTS
IN ERROR.

Argued July 2, 1909-Decided November 15, 1909.

1. The act of March 23d, 1881 (Gen. Stat., p. 2112), which requires

“that in all cases where a bond and mortgage has or may hereafter be given for the same debt, all proceedings to collect said debt shall be first to foreclose the mortgage,” &c., has no application where the existence of the mortgage has been lawfully terminated before the institution of proceedings on the bond to

collect the debt. 2. A judgment entered upon a directed verdict will be reversed on

error if by such direction any material matter in issue concerning which there was a substantial conflict in the testimony was re

solved by the trial court adversely to the plaintiff in error. 3. To constitute such a conflict it is not necessary that the facts

themselves be in dispute, for if the inference to be drawn from undisputed facts is one about which there may reasonably be an honest difference it is for the jury, not the court, to draw such

inference. 4. A legatee sued his father's executors for a legacy of $1,000 given

him by his father's will: the executors, under a notice of set-off, produced and proved a bond given by the legatee to his father for $1,000, and showed its continued custody by the testator; the legatee then produced from his own possession the mortgage that had accompanied said bond canceled of record during the life of the testator. Held, that upon the issue whether the debt secured by the bond was unpaid the inference to be drawn from the foregoing facts constituted a question for the jury which it was error

for the trial court to determine by the direction of a verdict. 5. Held, also, that the cancellation of a mortgage that had been

given to secure a bond, while not raising a presumption that the debt itself had been paid, was susceptible of that inference, and

hence was competent evidence to go to the jury on that question. 6. The fundamental characteristic of a presumption as distinguished

from an inference is that the former affects the duty of producing further testimony, not merely the weight of that already produced.

On error to the Supreme Court.

For the plaintiff in error, Austin H. Swackhamer.

For the defendants in error, David O. Watkins.

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