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Attorney-General v. McGuinness.

78 N. J. L.

"30. Any municipality of this state may adopt the provisions of this act by an 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."

Section 31 provides the method of taking such popular vote and declares how the adoption of the act shall be certified to the civil service commission but makes no provision as to the effect of its failure of adoption, i. e., no affirmative power of rejection is given. The act therefore may be adopted by the governing body without submitting the question to popular vote or the act may, upon proper procedure, be so submitted, and, if it fail of adoption by the electors, be then adopted by the governing body; in other words, the failure of either one of these two designated bodies to adopt the act does not prevent its adoption by the other. This is not a double referendum, such as was upheld by this court in Noonan v. Hudson County, 23 Vroom 398, but an alternative referendum, to which such decision has no application. The difference is manifest. A double referendum, by providing for a popular election after the affirmative action upon the same matter of the governing body, requires the concurrent affirmation of both bodies, that of the voters being a sine qua non to the adoption of the act. The alternative referendum, on the contrary, by providing for the adoption of the act either by the governing body or by the voters, not only requires no concurrent affirmation to which the popular voice is essential, but permits the adoption of the act by the action of the governing body, notwithstanding that it had failed of adoption by the people at the polls. This feature alone would seem to stultify the referendum provision of the act, for the reason that the sole argument and justification for the submission of the adoption of a statute to the governing body of a municipality is the presumption of the representative character of such body in this respect; when, therefore, such governing body is invested with power to adopt a statute, after it has failed of adoption by the people, such governing body is, in effect, clothed with authority to adopt the new law notwithstanding

49 Vroom.

Attorney-General v. McGuinness.

that it demonstrably appears that it is not in this regard representative of the will of the people whose local government is to be so changed. For such a mode of changing local governments it is not perceived that there can be either justification or argument. This phase of the subject need not, however, be further pursued for the reason that the question propounded to counsel and considered by the court goes directly to the fundamental question as to the constitutionality of a statute that is enacted to take effect upon its adoption by the governing body of the municipality to be affected by it.

It is evident, at the outset, that this question is part of a larger question, viz., whether a legislative enactment that takes effect, not at the will of the legislature, but at the will of somebody else, is a constitutionally enacted law?

This question, in so far as the submission of the adoption of charters or their supplements to popular vote is concerned, is entirely at rest in this state. The leading case upon this subject, and the earliest in point of time, is Paterson v. The Society, 4 Zab. 385, decided in the Supreme Court in 1854, upon an opinion delivered by Chief Justice Henry W. Green, in which the subject is treated with characteristic comprehensiveness.

The question before the court was whether or not the act incorporating the township of Paterson into the city of Paterson, which contained a provision that it should not go into effect unless the consent of a majority of the electors of the township should be first obtained, was a constitutional act of legislation.

The constitutional question as stated in the opinion was "Whether a statute is rendered unconstitutional by the fact that its operation is made to depend upon the will of the people expressed through the ballot-box?"

In dealing with this question three propositions of constitutional law were "conceded as indisputable." They werefirst, that legislation cannot be exercised directly by the people; second, that the legislative power can be exercised. only in the mode prescribed by the constitution; third, that a law enacted in any other mode is void.

Attorney-General v. McGuinness.

78 N. J. L.

Having laid down these fundamental propositions Chief Justice Green proceeds to show that the legislature, in submitting the charter provisions of a municipal corporation to the would-be corporators, violates none of these fundamental propositions, for the reason that neither the propriety of the provisions themselves as proper municipal regulations nor the expediency of granting or tendering a charter containing these provisions to the township of Paterson, which were the only legislative questions involved, was submitted to the people; nor for that matter was the question of acceptance at all submitted to the people in their sovereign capacity, i. e., as lawmakers, but solely as a designated class of the community, viz., those persons who, in the operation of the proposed corporation would be directly affected by its provisions. "The question submitted by the act to the inhabitants of the district," he says, "was submitted to them not as a part of the sovereign people but simply as corporators. Their vote was an act of acceptance not of legislation." Upon the ground thus stated, viz., that the acceptance of the statute was not an act of lawmaking or the action of lawmakers or of a lawmaking body, the constitutionality of the act was rested and sustained.

* *

The opinion of Chief Justice Green in Paterson v. The Society has been over and over again cited in the Supreme Court and in this court with uniform and unqualified approval, and, what is more to the point, has been followed in a long line of cases in which statutes thus affecting local government have been enacted to take effect upon their acceptance by the electors of the district immediately affected.

In the list of these cases that follows I shall cite first those cases in which, as in the leading case, the statute was a complete legislative enactment requiring only acceptance to incorporate its provisions in the scheme of local government, and afterward shall cite cases in which the statute delegated legislative powers to be exercised (or not) by the local government, a distinction that, because it inheres in the statutes themselves, and is essential to the harmony of our decisions, should be recognized. For convenience this distinction may

49 Vroom.

Attorney-General v. McGuinness.

be expressed by the terms "referendum statutes" and "statutes delegating legislative power."

The referendum cases are: Warner v. Hoagland, 22 Vroom 63; In re Cleveland, Id. 319; S. C. on error, 23 Id. 188; Kennedy v. Belmar, 32 Id. 20; Allison v. Corker, 38 Id. 596.

The cases involving the delegation of legislative power are: Sandford v. Morris Pleas, 7 Vroom 72; Paul v. Gloucester County, 21 Id. 585; Noonan v. Hudson County, 22 Id. 454; S. C. on error, 23 Id. 398.

These cases are conclusive of what we have called the larger question, viz., the validity of enactments depending for their operation upon some other will than that of the legislature. They go further and establish the validity of such statutes when such other will is that of the voters expressed at the polls, and they have also a direct bearing upon the question that is now before us for determination, viz., whether a statute, that would unquestionably be valid if its acceptance was submitted to the voters of a municipality, is equally so if the submission be to the governing body of such municipality.

Examining the state of our judicial decisions upon this last question I have been able to find but three cases in which such a submission, i. e., to the governing body, was considered and sustained as valid. These three cases are: Riley v. Trenton, 22 Vroom 498; De Hart v. Atlantic City (Supreme Court), 33 Id. 586; Schwarz v. Dover, 41 Id. 502; 43 Id. 311.

Before discussing these cases reference should be made to some cases in which, although the statute was of the same nature as that in the Trenton and Dover cases, no decision was reached upon the point now under consideration.

In Sanford v. Morris Pleas, 7 Vroom 72; Paul v. Gloucester County, 21 Id. 585, and Noonan v. Hudson County, 22 Id. 454, the ultimate submission was to the popular vote. In Dexheimer v. Orange, 31 Vroom 111, the statute was held invalid.

In Rutten v. Paterson, 44 Vroom 467, the required action of the board of freeholders that, if taken, would have raised

Attorney-General v. McGuinness.

78 N. J. L.

the point, was not taken, hence the proceedings were set aside, the opinion holding, incidentally, that the statute was "not unconstitutional as delegating legislative power to private citizens."

Returning to the discussion of the three cases in which the point was raised and decided, viz., Riley v. Trenton, DeHart v. Atlantic City and Schwarz v. Dover, it will be seen that DeHart v. Atlantic City was the only one in which a statute that was in effect a supplement to a municipal charter was limited to, and made operative in, those municipalities alone whose governing body should adopt such statute, i. e., a “referendum statute."

In the other two cases the statute was not of such a character or so limited or conditioned but was er vi termini an accession to the law-making power of an entire class of municipalities, i. e., a "statute delegating legislative power." It happens that in each case the power so delegated was that of creating boards of excise.

The distinction, therefore, between the statute that was considered in DeHart v. Atlantic City and those considered in the Trenton and Dover cases is that the latter conferred legislative power upon all municipalities of a certain class, to be, like all legislative power, exercised by the governing bodies of such municipalities; whereas the former conferred no power at all except upon those municipalities that adopted the act. This distinction is not only as we have said inherent in the statutes themselves, but its recognition is essential in the constitutional aspect upon which Paterson v. The Society was decided. For if the acceptance of a statute is not an act of legislation, and cannot be submitted as an act of lawmaking even to the people themselves, it follows a fortiori that it cannot be submitted to the lawmaking body of such people, i. e., their governing body. The distinction is also essential to the logical validity of the decision in the Trenton and Dover cases, for if the acts considered in these cases had been "referendum statutes" they would have required acceptance and not merely the exercise of legislative power by the local governing body. Our cases therefore, with the single exception of De

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