On appeal from the Supreme Court, whose opinion is reported in 117 N.J.L. 584.
For the appellants, Ward Kremer and Harry Cassman.
For the respondents, Lester C. Leonard.
The judgment under review herein should be affirmed, for the reasons expressed in the opinion delivered by Mr. Justice Parker in the Supreme Court.
For affirmance -- THE CHANCELLOR, CHIEF JUSTICE, TRENCHARD, CASE BODINE, DONGES, HEHER, DEAR, WELLS, WOLFSKEIL, COLE, JJ. 11.
For reversal -- PERSKIE, RAFFERTY, JJ. 2.
PERSKIE, J. (Dissenting). With all due deference to my colleagues I do not share the views expressed in the opinion of the court below, and adopted here.
The facts are not in dispute. They are fully stated in the opinion of the Supreme Court. The title of the challenged act is "An act concerning municipalities." Chapter 160, Pamph. L. 1936, p. 372. It is conceded, it is, in fact, expressly provided in the very first paragraph of the act itself that a beach commission shall be appointed in every municipality of the state "under the control of the municipal finance commission, and which shall own the beach and upland contiguous thereto." It seems clear to me that these provisions of limitation flatly contradict the title of the act. Surely, "no one, on reading the title, could reasonably understand that the body of the act was to have so limited an effect." Beverly v. Waln, 57 N.J.L. 143, 144; 30 A. 545; Coutieri v. New Brunswick, 44 N.J.L. 58. True, our courts have at times explained and distinguished the holding in Beverly v. Waln, supra (see Johnson v. Asbury Park, 60 Id. 427, 431; 39 A. 693; Kennedy v. Belmar, 61 N.J.L. 20, 25;
38 A. 756; Allison v. Corker, 67 N.J.L. 596, 599; 52 A. 362), but it is also true that it stands unreversed. Until such time as it may be reconsidered, it is, in my opinion, controlling and dispositive of this point. No construction, liberal or otherwise, can transcend the truth -- the conceded fact, that by its title, the act concerns all municipalities but by its provisions it concerns only a specifically limited class of municipalities.
I am, moreover, of the further opinion that the act is fatally defective because it violates paragraph 11, section VII, article IV of our state constitution which prohibits the passage of special laws to regulate the internal affairs of towns and counties, and the appointing of local officers or commissions to regulate municipal affairs.
The Supreme Court observed that "if the act were restricted to municipalities now under a financial commission, it would probably be unsound." Agreed. And it further observed, "or if, again, it were restricted to those now owning a beach front it would likewise be faulty." Agreed. But we are told because the act is not restricted in either particular it is therefore valid. Non sequitur.
I think that the mere joinder of both particulars in the act gives the act no greater efficacy than that which flows from the conceded unsoundness of each particular thereof. ...