Opinion

In Re the Petition Filed by the Freeholders of Hudson County

  • 105 N.J.L. 57
  • 143 A. 526
  • 1928 N.J. Sup. Ct. LEXIS 458
Court
Supreme Court of New Jersey
Filed
Oct 25, 1928
Status
Published
Author
Minturn
On the bench
G-Ummere, Trewchart, Lloyd, Parker, Minturn, Kalisch, Black, Katzenbach, Campbell
Cited by
5 cases
Authority
More cited than 41.2%

The opinion

Minturn, J.

(dissenting). While in this day the right of the legislative branch of government to regulate the exercise of the franchise must be accepted as an established constitutional truism, and beyond the realm of reasonable criticism, still the books are replete with cases which exhibit the judicial effort to so guard the exercise of this undoubted power, as to prevent even its well-intentioned exercise from lapsing into the realm of prohibition or transgression, and thus unconsciously invade the clear legal right of the citizen. Eor concededly as the power to tax involves within the generic concession, when unrestrained within limitations of reasonableness, the power to destroy, so any governmental concession may be so exercised, as to seriously impair the funda

*66

mental power upon which it is based, and from which it derives its power to function. Thus in the case

sub judice

if the' necessity for reasonable remedial legislation be conceded, the inquiry persists whether any piece of legislation may not in its practical application so far impinge upon that rule of legal reason, which has come to be denominated as the constitutional doctrine of due process of law, and which invariably requires a notice and hearing as a necessary preliminary to condemnation.

Webster, in his famous argument in the Dartmouth College ease ( 4

Wheat.

518 ), clarified this essential doctrine of the common law so vividly that his language has become almost axiomatic in constitutional jurisprudence: “By the law of the land is most clearly intended the general law; a law which hears before it condemns; which proceeds upon inquiry, and renders judgment only after trial. The meaning is that every citizen shall hold his life, liberty, property and immunities under the protection of the general rules which govern society.”

The practical effect of the legislation in controversy is to reverse these prerequisites of constitutional adjudication, and to subject the voter to condemnation before the election board where he has been registered, without first giving him an opportunity to be heard in explanation or extenuation of his status before the board or the accusing official.

The act in that respect is therefore subject to judicial criticism, as an invasion of the constitutional right of the citizen to be legally protected in the lawful exercise of the franchise and to that extent is unconstitutional.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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