# Wanser v. Hoos > Supreme Court of New Jersey · June 15, 1897 · 60 N.J.L. 482 URL: https://www.frixlaw.com/law-library/cases/8271064 ## Case - **Full name:** PETER F. WANSER, IN ERROR v. EDWARD HOOS, IN ERROR - **Court:** Supreme Court of New Jersey - **Decided:** June 15, 1897 - **Citations:** 60 N.J.L. 482; 31 Vroom 482; 38 A. 449; 1897 N.J. LEXIS 33 - **Precedential status:** Published - **Opinion:** Dissent by Collins - **Judges:** Collins, Depue, Dixon - **Cited by:** 21 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8271064 ## Opinion text Collins, J. (dissenting). I base my dissent from the conclusion reached in this cause upon three fundamental’ rules evolved from the long discussion of the constitutional power of the legislature to classify towns when regulating their internal affairs by law. IHrst. For legislation dealing only with the structure of municipal government—the formation.of the machinery by which municipal affairs are to be regulated—the municipalities of the state may be distributed into classes constituted on the basis of. population. 1 This rule was thus formulated in the Supreme Court in the case of McLaughlin v. Newark, 28 Vroom 298, 299 , and was *541 approved by this court in its affirmance of the judgment therein. S. C., 29 Id. 202. The rule is now conceded, but its applicableness in this case is questioned. It is doubted that' a statute the only purpose, or the chief purpose, of ■which is to change the date of municipal elections deals at all with- the structure or machinery of municipal government. I have no such doubt. It seems self-evident that such a statute deals directly and solely therewith. . Incumbency of office has the same place in the structure and machinery of municipal government that heart-action has in an animal mechanism. Without:it there can be no living organization. Elections and appointments to office are correlative. . Most of the judicial decisions leading to the establishment of the rule above stated turn upon statutes providing for change from one to the other of these methods of filling municipal office. In Warner v. Hoagland, 22 Vroom 62 , the law sustained transferred from boards of commissioners to the common council important powers of government in all cities except those of the first class.. The law sustained in In re Haynes, 25 Id. 6, took from various boards elected by the people and placed in one board to be appointed by the mayor all the powers over public works in cities of the first class. A later law, never questioned, made that board.elective. Pa mph. L. 1894, p. 524. Owens v. Fury, 26 Vroom 1 , and other cases decided at the same term with that case, sustained, for other cities of a class based upon population, laws tranisferring from elective to appointive boards and officers various governmental powers. Surely, then, in judicial opinion, elections to municipal offices enter into the structure and machinery of municipal government. The fixing of a date for such elections is, of course, a necessity. In Mortland v. Christian, 23 Vroom 521 , this court adjudged that local elections are- subject, to legislative change on the, basis of population, and did so on the express ground that the act then under review concerned the machinery of administration. S. C., Id. 537 . It is now observed that the change *542 Of date there sustained was a mere incident in the scheme of administration provided- by the act, and the inference seems to be that, standing alone, a change would not have been upheld. T eannot think that such an inference was intended or that this court means to declare that, had the act left unchanged the date of election, a new date might not have been fixed by a separate act. There have been several such separate acts extant. In 1895 (Gen. Stat., p. 515) it was enacted, in a statute dealing with no other subject, that in all cities of the second class the annual or charter elections should be held on the second Tuesday of April, and in 1896 (Pamph. L., p. 169) it was enacted that the municipal or charter elections in cities of the first class should be held on the second Tuesday of April. It is this last-named act alone that justifies the change •of Newark’s charter election from autumn to spring, the former act (Pamph. L. 1892, p. 21) being plainly unconstitutional Can it be that, under the decision now rendered, Newark must return to October elections? It was very justly said by the present Chief Justice, in the case of State v. Borough of Clayton, 24 Vroom 277, 281 , that while the legislature may, in •obedience to the constitutional requirement, pass a general law providing for a complete system of government for all municipalities, or for appropriate classes' thereof, it is clear that it may also pass a series of co-related acts having the same purpose. I must assume that an act like that now •overthrown would have been sustained had it fixed some' other day for municipal elections than that already set apart by law for state and county elections. If so it would have 'been so sustained by force of the rule I have stated, for on' nothing else can it rest. But it is argued that in applying the rule the court must' look at every act dealing with the structure or machinery of municipal government to see if population bears relation to its particular subject. This would lead to a paradox destructive of the rule. The courts have adjudged that population bears a reasonable relation to the structure and machinery of municipal" government. This becomes meaningless if we *543 say instead that population bears a reasonable relation to so much of the structure and machinery of municipal government as bears a reasonable relation to population. I find no support in the adjudged cases for the suggested limitation.The formative judicial opinion out of which the rule was finally evolved is only useful as showing the continuous progression that led to that result. For example, in the Haynes case, relied on as an instance of this limitation, Chief Justice Beasley, in vindicating a statute by which in cities of the first class the legal machinery for controlling streets and water-supplies was regulated ( 25 Vroom 6 ), did indeed confine himself to showing the relation of those interests to population. He needed to go no farther, but in the later case of Matheson v. Caminade, 26 Vroom 4, 6 , he uses language in which I find no hint of limitation. There he says: “ It has been decided that, with regard to structural forms of government and administration, the municipalities of the state may be distributed, for legislative action, into classes constructed on the basis of population. The ground plainly expressed, for this conclusion was that population in this connection is a connotative term, signifying not only the populousness of a city, but, as well, the magnitude of its public concerns, and hence a fair classification on such basis was a distribution of cities which, in -all essentials, were of different grades, manifestly requiring different forms of government, and hence the choice of adaptive forms of government was of necessity a legislative function.” This is the only safe and sure rule. I trust the decision of the present cause has not overthrown it. ' Second. When the drawing of some line of demarcation between the larger and the smaller aggregations of people is justified, it is for the legislature to say where that line shall be placed. - I quote this rule from the opinion of the Supreme Court in the case of Randolph v. Wood, 20 Vroom 85 , 91. This court approved it when affirming judgment in that case ( 21 Vroom 175 ), and it is. not questioned now. Of course any classifica *544 tiou, to be valid, must be not illusive or evasive. The “ first class ” of the general act has been too often sustained by this court to be now challenged as an evasion of the constitution. I do not see the force of the observations made upon that subject in the course of the prevailing opinion in this cause. Third. Legislation appropriate to-a proper class of municipalities is valid, though not extended to other classes to which it may be equally appropriate. This' rule results from the reasoning and decisions in several cases, among them State v. Borough of Clayton, supra, followed and approved by this court in Road Commission v. Harrington Township, 26 Vroom 327 . Nb one has stated this rule more clearly and comprehensively than the learned judge who speaks for this court in the present case; In the case of Johnson v. Asbury Park, 29 Vroom 604 , he says (at pp. 607, 608).: “An examination of the many statutes relating to cities of the several classes, towns, townships and boroughs will disclose diversities in the power granted to these several municipal bodies which, if tried by the criterion proposed by counsel in this case, viz., that no reason can be given for granting certain special powers to one class of municipalities and withholding them from other classes, would operate disastrously upon the system of municipal government in force in this state. 'The division of municipalities into cities, towns; townships and boroughs being a classification permitted by the constitution for the-purpose of local government, the powers to be conferred upon these bodies severally which pertain to the ordinary functions of local government must rest in legislative discretion.” The'same reasoning applies, of course, to statutes that relate to the structure and machinery of municipal government. If, therefore, the act now impugned' is invalid; it .must be so because of some vice sui generis. Such a vice js said to inhere in the combination 'of municipal with general elections. This, is the stress of the opinions of the Supreme Court in Hoos v. O’Donnell, ante p. 35, and of this'court in the present-case approving that decision. -The claim must be *545 thus stated, viz., that in regulating by means of elections the formation of local government in a proper class of municipalities constituted on the basis of population, the legislature has not the constitutional power to fix for such elections a date already set apart by law for state and county elections or (by implication) for national elections, and to prescribe the use of a single ballot. I had supposed the opposite of this proposition to be involved in Mortland v. Christian, supra. There a statute was upheld as constitutional which reorganized, in counties of a class based on population, their boards of chosen freeholders by substituting for a membership elected in the spring from townships and city wards one to be elected from assembly districts in November at the general election. True, the point was not specially ruled and perhaps was not fully presented by counsel, still it was of necessity involved in the case and it would seem that a resolution against it must subsist in the judgment. Taking up the question as res nova, I cannot assent to the proposition. I see for it no basis whatever. In this court it is said that it has always been the policy of this state to keep the election of township, town and city officers separate from the election of state and county officers. This is a mistake. There have been previous instances of combining municipal with general elections. They were combined in Newark in 1851 (Pamph. L., p. 233, § 4), in Atlantic City in 1854 (Pamph. L.,p. 280, § 4), and in Elizabeth in 1867 (Pamph. L.,p. 333, § 2). In the last-named city the combination prevailed until the act of 1889. The legislature of 1889 did declare its policy, but the legislature of 1897, as to cities of the first class, adopted a different one by law, and the courts cannot review its judgment. It should be noted that an incidental combination, as in the law upheld in Mortland v. Christian, supra, would be as much against the supposed policy invoked as separate legislation would be. I cannot distinguish the cases. Furthermore, *546 the same reasoning would avoid statutes framed to include all towns as well as those limited to a class. Whatever may be thought as to the wisdom or unwisdom of combining municipal with general elections, the subject is one of legislative policy and entirely within legislative control. The people have declared no such policy in the constitution. In the Supreme Court, in Hoos v. O’Donnell, the case was rested by one of the judges upon a proposition not adopted in the prevailing opinion in this court in the present case but deserving of attention. That proposition is that the act overthrown infringes the implied constitutional restriction that all regulations of the elective franchise must be uniform and impartial. But this restriction has reference to such a right of suffrage as is guaranteed by a constitution or inherent in government by the people, and does not preclude local or special laws. For example, registry laws for large cities only have, in this state, existed unchallenged for more than twenty-five years, and I have no doubt that many of the other regulations now general would be unassailable, even if limited in operation. But a sufficient answer to the objection is found in the fact that the restriction appealed to does not include municipal elections. There is in this state no constitutional right in the people to elect municipal officers. The legislature, in its control of municipal corporations, is limited only by various requirements that laws shall be general. If it is seen fit to adopt the method of popular elections in administering these governmental agencies and the requirements of generality are met by a proper classification, the voter cannot complain that his vote in that behalf is called for in some localities at the time of exercise of his general right of suffrage and in others at a different time. The doctrine that voters at municipal elections cannot constitutionally be subjected to or protected from the influence of state or national politics unless all municipalities, or at least all of the same type, are included in every law that may have *547 such an effect, will, if logically carried out, lead to startling results. The legislature, if it change the date of the general election, must avoid the date of local elections in every municipality in the state. It cannot, by classifying counties, yield to the powerful argument now current, that in populous communities local should be separated from general elections, for counties as well as towns come within the constitutional prohibition. When providing for local elections in classes of towns or counties otherwise permissible, it must conform to the will of the federal congress, for, under the constitution of the United States (article 1, section 4), the right to fix the time of election of members of the house of representatives rests in the national legislature and has been exercised. U. 8. Rev. 8tat. § 25. I cannot assent to a doctrine that of necessity leads to such results. I find nothing in the opinions of the Supreme Court or of this court to convince me that the act of March 18th, 1897, is unconstitutional. It is unnecessary to discuss the other objections urged by counsel. It is sufficient to say that I find them all untenable and vote for reversal. There is a suggestion in the opinion delivered for this court to which I think the court does not mean to stand committed,- and that is, that when a law is seen on its face to operate only in specified localities, it is to be deemed to be local or special until the contrary is shown. The presumption should be the other way, for every intendment is in favor of the constitutionality of legislation. Cooley Const. Lim. *182. For affirmance—The Chief Justice, Depue, Lippincott, Van Syckel, Adams, Bogert, Hendrickson, Nixon. 8. For reversal—Collins, Dixon, Ludlow. 3. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8271064. Public record. Not legal advice.