Board of Chosen Freeholders v. Stevenson

Dixon, J.

(dissenting.) I agree with the majority of the court in thinking that the law under consideration is local. Two questions therefore arise: First, whether it violates the constitutional amendment, forbidding local laws which regulate the internal affairs of counties. Secondly, whether it is void for non-compliance with the constitutional amendment requiring that no private, special or local bill shall be passed, unless public notice of the intention to apply therefor, and *189 of the general object thereof, shall have been previously given.

I. Does this law purport to regulate the internal affairs of the counties where it is to operate ? It attempts to fix the salary payable by the county of Passaic to the prosecutor of the pleas of that county. Is the payment of that salary an internal affair of the county ? I think not. The compensation of the prosecutor is a necessary incident of the prosecution of crimes within the body of the county, and such prosecution cannot properly be regarded as an internal affair of the county. The offences to be prosecuted are violations of state laws, committed against the peace of the state, prosecuted in the name of the state by an attorney of the state before judges appointed by the state, the penalties to be imposed are inflicted by direct authority of the state and mainly understate supervision, and whether in any case they shall be remitted is determined in a court of the state. These things have-been so ever since the commonwealth existed; and- they show,, in my judgment, that, according to the general consent of our people, the repression of crime in each county concerns the state at large and is not an internal affair of the county. The incidents partake of the character of the principal.

II. Is the law void for want of notice ?

With regard to this question, I think, first, that whether notice was given is an inquiry not open to judicial consideration. Two theories exist in this country touching the effect as evidence of a document found in the legal depository of laws and regularly certified by the usual authorities to have become a law. One is, that such a document is 'prima, facie a law, but that the courts will receive other evidence, such as legislative journals, to ascertain whether the mandates of .the constitution as to the mode of enacting laws were observed regarding it, and if they were not, will adjudge it null. The other is-that such a document is conclusive evidence of its being a law,, so that no proof can collaterally establish the contrary. This latter is the theory which has been adopted in New Jersey (Pangborn v. Young, 3 Vroom 29,) and it has my entire con *190 currence. The secretary of state may be regarded as the clerk of the legislative department of the government, and if there appear in his office instruments having the form of law which have not been adopted by the legislature as law, the citizen aggrieved must go to the legislature for redress, just as he would be obliged to go to a court whose records falsely showed a judgment against him. If he says the legislature is not in session and cannot act until his injury is complete, he may be answered that the same imperfections attend the methods of judicial redress; if he suggests that the legislature is not or will not be willing to purge its records from falsehood, he must be answered that it would be indecent for courts to act on such suggestions. The béhests of the constitution as to the mode of legislative procedure are addressed to the legislature itself, and when that department of the government has ■declared that in accordance with those behests it has enacted a law, the executive and judicial departments must receive that that declaration as verity.

But while this is conceded to be the rule touching all other constitutional provisions, it is denied as to this amendment, because the clause directs the legislature to prescribe what shall be evidence of the giving of notice and how the evidence shall be preserved. The argument is that because the evidence was to be preserved, it was designed to have it used to maintain or impeach the validity of the law. The constitution does not itself express such a design; it is ■claimed to appear by inference only. The reasons for such an inference seem to me to be weak and to have been substantially condemned in Pangborn v. Young, ubi supra. There the question was whether the court would permit it to be shown by the journals of the legislature that the alleged law had not been voted for by a majority of each house. The constitution in terms commands that no bill or joint resolution shall pass unless there be a majority of all the members of each body personally present and agreeing thereto; that the yeas and nays of the members voting on such final passage shall be entered on the journal which each house is *191 •directed to keep of its proseedings and from time to time publish. Thus there was the express mandate of the constitution, that evidence of the fact should be made by entry on the journal under the very eye of the house, and should be pre • served, by publishing it to the world, so that loss would be practically impossible; and the fact to be evidenced was the very essence of legislation. Yet these careful provisions in the text of the constitution itself did not induce the court to infer that thé validity of public laws depends upon such evidence as the journals afford. Is it more reasonable to draw a parallel inference from the vague provisions now under review, which concerns only a preliminary to legislation and ■commits the whole subject to the discretion of each legislature? I think not.

The statute passed to carry out this amendment well exemplifies the danger of holding that the question whether due notice was given is a matter for judicial revision. It directs (Rev., p. 1125,) that the notice shall contain a correct statement ■of the general object of the bill, be signed by at least one of the parties who intend to apply for its passage, and be published in at least one of the newspapers printed and published-in every county wherever said bill is or is likely to take effect, and, if no newspaper be printed and published in said county, then in a newspaper printed and published in some adjoining county, which publication shall be at least once in each week for four consecutive weeks next preceding the day prescribed for the first assembling of the legislature in which such bill is to be introduced. It further directs that proof of the publication shall be made by an oath or affirmation in writing made by the publisher or agent of the publisher of every newspaper in which such publication was made, containing a copy of the notice published, which shall be presented with such bill when introduced, and after the final vote upon said bill shall be filed and deposited by the officers of the legislature in whose hands the same may be in the office of the secretary of state, there to remain; by the secretary it is to be recorded. Whether this statute is within constitutional limits and bind *192 ing upon legislatures, while it stands, may well be doubted. The constitution is satisfied by public notice given previous to the passage of a bill, while this act requires such notice to be given before the assembling of the legislature. But if compliance with this statute is to be the final test of the existence of private, special and local laws, then, first, are the dangers of defective proof, arising out of the neglect or unskillfulness of inexpert draftsmen; and, secondly, the probability that a duty to be performed, not at a specified time, but only after a certain event, not devolved upon any particular officer, but divided among all the officers of the legislature, will be ob- • served by none. After the supreme power of the state has pronounced its sovereign will, the operation of that will is to be kept in abeyance until, or totally defeated' unless, an undesignated official, under the guidance of his own judgment, shall happen to conclude that he ought to file a printer’s affidavit, which somehow has got into his hands. But if it be alleged that obedience to this statute is not requisite, but only obedience to the constitution that public notice shall be given before the passage of the bill, then the answer is that the constitution manifests a design to entrust to the legislature, and not to the courts, the right to say what shall be notice, and what the evidence of it. In my opinion, this entire clause is addressed to the judgment and conscience of the legislative bodies; they are to say, and say conclusively, as they pass upon each private, special local and bill, whether legal notice has been given; and the evidence of such notice is to be made and preserved for use in each house and before the governor, and thereafter, if at all, in order that the people may know whether their servants have regarded constitutional obligations. To that effect is the decision in Broadnax v. Groom, 64 N. C. 244.

As a check upon legislative power, the clause is utterly useless ; for, in fact, no bill of any kind does nowadays pass either house without public notice being given, both by its public introduction and by newspaper correspondents, of the intention to apply for it and its general object, and each legislature can enact. *193 that this notice shall be sufficient, and that the conclusive evidence of it shall be the filing with the secretaiy of state of the certified bill. With such a law the legislative power would stand where it did before this amendment was adopted.

But, secondly, I think there is not, in the present case, competent proof that due - notice was not given. The only evidence to that effect is the admission of the parties. In Illinois, where the courts are willing to go behind the certified bill to see whether the legislature has proceeded according to the constitution in enacting laws, they distinctly repudiate the admission of parties as proof of irregularity. Happel v. Berthauer, 70 Ill. 166. The point for decision is whether what seems to be a public law closely affecting the preservation of the public peace, which is certified by the general assembly, the senate and the governor to have been enacted in conformity with all the requirements of the constitution, and which, under the sanction of the government, has been promulgated as law to all the citizens of the state, is proved not to be law by the admission of two suitors. The question is not one of private concern merely; it involves the enforcement of a public statute, and, in this case, against public officers. If, on a bill for divorce, the parties should stipulate that the defendant was to be taken as guilty of the offence charged, the court would ignore the admission because the public is interested in the maintenance of the marriage state. The enforcement of a public law is quite as important to the public as is the preservation of any single marital bond. The proof to defeat the law should therefore be, not simply evidence legal against the nominal parties, but proof against the state, proof of the absolute fact, proof which constrains the conscience of the court to adjudge that a co-ordinate branch of the government has transgressed its constitutional bounds. This proof no private admission can furnish.

My conclusion, therefore, is that the statute before us was duly passed and is valid, and that therefore the judgment below should be reversed.

*194 For affirmance—Magie, Parker, Reed, Yak Syckel, Clement, Cole, Paterson, Whitaker. 8. For reversal—The Chancellor, Dixon, Knapp. 3.