City of Jersey City v. Zink , 133 N.J.L. 437 ( 1945 )

I am in full accord with the opinion of Judge McGeehan. In addition thereto I am of the opinion that chapters 4, 5, 6 and 34, Pamph. L. 1945, are constitutional enactments. The majority opinion holds them in violation of article IV, section 7, paragraph 11 of the state constitution. The argument made is based on the false assumption that municipal funds are arbitrarily taken away from certain municipalities and given to others or to the state. The funds dealt with were state funds.Wilentz v. Hendrickson, 135 N.J. Eq. 244.

Because the laws under attack create different methods of allotment than that obtaining under prior acts, because some municipalities will receive less revenue, others more than they did previously, does not make them special legislation. Relators argue that because some municipalities will receive less that they are making a contribution and that their money is being diverted. As said, it never was their money, actually or constructively. They are contributing municipalities only because they will receive less under the general legislative plan of distribution or because the money will be retained in the state fund. This may be an unfortunate result from their standpoint but it is nevertheless constitutionally good legislation. Until distributed it was money of the state and it could allot it under existing acts or change the method of allotment by other appropriate legislation. According to relator's theory and that adopted in the majority opinion, appropriations once made cannot be changed unless the beneficiaries under the prior legislation receive an equivalent or greater sum under the new act. Stated another way, this amounts to an assertion that certain municipalities have received from the legislature an appropriation or grant of these funds in perpetuity.

These statutes create no "burden" or "contributing" municipalities. It is only by comparison with rights claimed to exist under prior legislation that these so-called contributions and burdens are made to appear. Comparisons with prior legislation form no basis for the determination of the question as to whether an act is general or special. Even though the acts do create variant financial burdens upon the municipalities that would not make the legislation special. McDonald v.Freeholders, 99 N.J.L. 393.

The only method by which the majority could hold chapter 34 unconstitutional was to say that all of these acts present one integrated plan and purpose and must be considered in parimateria. Chapters 4, 5 and 6 are disbursing statutes, while chapter 34 is a retaining statute, its sole purpose being to place the interest on past due railroad taxes in the general fund where it already was. Recognizing that difference the holding falls. The facts and the purposes of the acts in question refute the statement.

It is claimed by relators that if chapters 4, 5 and 6 are unconstitutional, chapter 34 is likewise so by reason of the proviso contained therein. With respect to the excision of unconstitutional features from a statute the test is "does it clearly appear that the unconstitutional feature of the statute constitute an essential motive to its enactment." McCran v.Ocean Grove, 96 N.J.L. 158. The legislature was on notice that chapter 4, 5 and 6 were under attack on the ground of unconstitutionality. To meet the possibility of their being held invalid or that they might "fail of effect" it enacted chapter 34 in order to keep all of the money in the general fund under any circumstances.

Appellants rely on Rutgers Chapter, c., v. New Brunswick,129 N.J.L. 238, and say that the invalidation of the proviso of a statute will cause substantive provisions qualified by the proviso to fall also. In that case it was held that the question is one of construction and legislative intent. Of course it is plain to see that if the legislative intent is frustrated by the failure of the proviso the whole act would be invalid, and that if without the proviso the remainder of the act would be accorded a different meaning from that intended by the legislature, the whole act would fall. This is not the situation here where the proviso is distinct and separable from the underlying enactment, i.e., to put all the moneys in the general fund, and does not violate the aforementioned rule.

In Connelly v. Union Sewer Pipe Co., 184 U.S. 540, cited in the Rutgers case it was said if the enforcement of a statute with the constitutionally vicious provision eliminated "would cause results not contemplated or desired by the legislature, then the entire statute must be held inoperative." The exact opposite situation is presented in chapter 34. This court inAttorney-General v. Anglesea, 58 N.J.L. 372, said: "Where part of a statute is unconstitutional, the remaining part may stand only when it will operate in accordance with the apparent legislative intent." There is every right to believe, and all the facts show that in the instant case the legislature would have passed this statute, as it would stand after the excision of the proviso, if by chance that should necessarily be done.

I conclude, therefore, that in the first place these acts do not violate any constitutional provision and that if, perchance, any or all of chapters 4, 5 and 6 do, then chapter 34 must stand with the proviso excised.

Mr. Justice Colie, Judge Wells and Judge Freund desire to be recorded as concurring in the views above expressed.

For affirmance — COLIE, OLIPHANT, WELLS, FREUND, McGEEHAN, JJ. 5.

For reversal — THE CHANCELLOR, CHIEF JUSTICE, PARKER, DONGES, HEHER, PERSKIE, RAFFERTY, DILL, JJ. 8.