McDonald v. Board of Freeholders , 99 N.J.L. 393 ( 1924 )

I find it difficult to concur in the conclusion reached by the majority of the court, that the legislation under consideration is not special in character, and that it is not a regulation of the internal affairs of the two counties, which are specially subjected to its provisions, contrary to the interdiction of the constitution. Two counties of the state are segregated from the general classification of counties, and by this legislation are subjected to the electorial supervision of a legislative agent, whose salary is fixed by the legislature, and whose power to appoint inferior agents and officers is without limit, as to number, or restriction as to compensation, to be paid by the taxpayers of the two counties, thus segregated, without consideration and without question.

Acts of the legislature, designed to regulate the frame structure and machinery of local government, we have frequently held, when properly related thereto, may stand as a constitutional expression of the legislative discretion. VanRiper v. Parsons, 40 N.J.L. 1. But when it is proposed that legislation may be designed to impose upon any specially-selected political division of the people, an extraordinary tax or imposition of an arbitrary character, without the consent of the people, and against the will of their chosen representatives in the board of freeholders, I know of no acknowledged principle of American law, and no adjudication in this state, which can be reasonably invoked to support the procedure.

It is argued in support of the proposal that the regulation and control of elections are matters peculiarly within the province of the representatives of the state at large, and not a matter of peculiarly local concern, and that therefore the state maynolens volens segregate any county or counties, and impose upon them the financial burden of state regulation. It may be conceded that the subject of elections is peculiarly the concern of the state at large, but in that concession there is contained the implication that the expense of regulation must also be a matter of state assumption, otherwise we shall have in state administration the very evil which the constitutional inhibition sought to correct — the interference by special legislation, in the guise of general laws, with the internal affairs of towns and counties. If the legislature may arbitrarily and legally impose this burden upon the taxpayers of Hudson and Essex counties, why cease its exactions at county lines? Why not select the two largest cities of the counties and by a species of local regulation impose a supervisor, and a satrapy of lieutenants upon the municipalities, with their incidental burdens upon the local taxpayer? If the legislature may constitutionally exercise this arbitrary power upon these two counties, in electorial matters, why cannot the legislature, with equal logic and plausibility, exercise and apply its conceded general power over the subject of prohibition of those two counties, and impose prohibition agents of like character and with like powers upon these counties, and thus segregating them from all the political subdivisions of the state, upon the theory of density or diversity of population, subject their people to such arbitrary burdens of taxation as the legislative agent may impose upon them.

The fact is that, in supporting this character of legislation, we are, in effect, paving the way, not only for the destruction of the basic American doctrine of home rule in fiscal affairs, and lodging that most important power in the hands of state representatives, who the constitution never intended should exercise it, to the exclusion of the citizens, whose property is thereby subjected to the arbitrary exactions of changing local political agents in nowise responsible to the taxpayer for the character of their work, or the enormity of their fiscal exactions. Such was the theory of regal taxation which induced magna charta at the hands of the then taxpayers of England, and such the basic theory of irresponsible foreign acquisition which produced our present form of national and state government, as the result of the arbitrary exactions of a distant and irresponsible domination.

These fundamental principles are supported by our adjudications in Board of Chosen Freeholders v. Stevenson, 46 N.J.L. 173;Freeholders v. Clark, 65 Id. 276; Foley v. Hoboken, 61Id. 480; Oram v. New Brunswick, 64 Id. 19, and by the general trend of all authorities, state and federal, which I have perused, as well as by the thoughtful consideration of accurate text-writers upon the subject. Cooley Const. L. 562.

In the last case cited Mr. Justice Magie declared "legislative acts affecting salaries which must be raised by taxation in municipalities do regulate internal affairs." The same learned authority in Passaic v. Stevenson, stated "the law in question which fixes amounts to be paid to prosecutors by particular counties which must be raised by taxation, is obnoxious to the prohibition of the constitution against private, local or special laws regulating the internal affairs of counties." In that case it is to be observed that the act sub judice actually fixed the fees in question, while in this act irresponsible agents are cast upon the communities, and their salaries fixed by the carte blanche of a legislative agent. In the same case Mr. Justice Van Syckel says: "Those who control the county finances are charged with the duty of raising the necessary funds to pay such salaries, and upon such laws depend the extent to which the county shall be burdened by taxation. In no respect can the internal affairs of a county be more materially regulated. Laws relating to the mode of paying public officers by the counties, and to the amount of their compensation, regulate their internal affairs equally, whether such officers are engaged in administering justice or in the performance of other functions within the county."

Mr. Justice Garrison, in closing the opinion in Foley v.Hoboken, supra, intimates that such an exaction might well be considered as opposed to the fourteenth amendment of the federal constitution, citing Gulf, c., Co. v. Ellis, 165 U.S. 150.

"An act," says the learned justice, in Budd v. Hancock,66 N.J.L. 133, 135, "is special in a constitutional sense, when by force of an inherent limitation it arbitrarily separates some persons, places or things from others upon which, except for such limitation, it would operate." But cui bono? The sentiment pervading the cases is uniform and consistent, and upon this question the Rubicon long ago was crossed.

It is said that the legislative discretion which guided this act to successful passage must control, and we cannot gainsay. But there are judicial limits even to that, for while legislative discretion may be justified in any instance of legislative supervision, it cannot be justified in arbitrary legislative taxation applicable only to two segregations of the state, to the exclusion of the rest of the state upon a matter concededly of state jurisdiction. Nor can it be justified, as is claimed, upon the theory of the existence of a heterogeneous population, which in these days of rapid transportation neither loses its spots nor changes its character, whether viewed from the banks of the Hudson and Passaic, from the rolling billows of the Atlantic, or the placid waters of the Delaware.

I am advised that Mr. Justice Campbell and Judges Gardner, Van Buskirk and Clark concur in these views.

For affirmance — THE CHANCELLOR, CHIEF JUSTICE, TRENCHARD, PARKER, LLOYD, WHITE, JJ. 6.

For reversal — MINTURN, CAMPBELL, GARDNER, VAN BUSKIRK, CLARK, JJ. 5.