On appeal from the Supreme Court, Essex County Circuit.
For the plaintiff-appellant, John A. Bolger.
For the defendant-respondent, John Warren and David J. Wilentz, attorney-general, amicus curiae (Louis J. Cohen, assistant attorney-general, and Merritt Lane, of counsel).
The opinion of the court was delivered by
CAMPBELL, CHANCELLOR. An action was brought for the purpose of recovering the withdrawal value of ten installment
shares of the stock held by the plaintiff-appellant in the Niagara Building and Loan Association, which, on December 31st, 1932, was consolidated and merged with the Longworth Building and Loan Association, the defendant-respondent. This stock was subscribed for June 17th, 1919. Written notice of withdrawal was given on June 15th, 1931, and on subsequent dates prior to October 15th, 1931, and the action in question was commenced January 19th, 1934. In her complaint the appellant rested her right of action upon the ground that she was entitled to payment according to the terms and provisions of the statute existing at the time she subscribed for the shares in question. This was Pamph. L. 1903, p. 457. The statute in effect at the time she gave notice of her withdrawal was Pamph. L. 1925, ch. 65, p. 189. The terms and provisions of both of these statutes, as to the question of withdrawal, are, to all intents and purposes, alike.
Between the date of giving her notice of withdrawal and the commencement of her suit Pamph. L. 1932, ch. 102, and Pamph. L. 1933, chs. 48, 166 and 258 had been adopted and become effective. Pamph. L. 1932, ch. 102, became effective April 22d, 1932, and Pamph. L. 1933, chs. 48, 166 and 258 became effective March 10th, 1933, May 11th, 1933, and June 21st, 1933, respectively.
The appellant appears to contend that whether the act of 1903 or 1925, supra, controlled, she was entitled to have her action December 15th, 1931.
In its answer the defendant-respondent pleaded, among other things, all of these statutes and certain orders of the commissioner of banking and insurance issued pursuant to the 1933 acts, and reserved the right to move to strike the complaint as not setting up a cause of action. Plaintiff-appellant moved to strike the answer and upon the coming on of the hearing of such motion before the Circuit Court judge, sitting under the statute, as a Supreme Court commissioner, the defendant-respondent moved to strike the complaint and prevailed, and from the judgment entered the plaintiff below appeals and urges and argues four grounds for reversal:
1. That Pamph. L. 1932, ch. 102, is not retrospective.
2. That Pamph. L. 1932, ch. 102, if retrospective is unconstitutional.
3. That Pamph. L. 1932, ch. 102, is not an emergency act.
4. That the orders issued by the commissioner of banking and insurance under Pamph. L. 1933, chs. 48, 166 and 258 are invalid and without effect and the statutes are unconstitutional as being an improper delegation of legislative powers.
Counsel for appellant concedes in his brief that if Pamph L. 1932, ch. 102, supra, or the orders of the commissioner of banking and insurance issued under the 1933 statutes, supra, are controlling, then appellant's complaint failed to state a cause of action.
The first three points urged for reversal can, most conveniently, be considered together.
First, it is urged that the 1932 act is not emergency legislation because it does not recite the existence of an emergency and is not limited in its existence to the period of any emergency but forms a permanent part of the statutes relating to and regulating building and loan associations. This, in the cause before us, is not necessary. A legislative declaration of the existence of an emergency is entitled to judicial consideration but the courts must be guided by what is common knowledge. Home Building and Loan Association v. Blaisdell, 290 U.S. 398; 54 Sup. Ct. Rep. 231; 78 L. Ed. 413.
Further, an emergency does not create or bestow legislative power, not otherwise constitutionally existing, but it may furnish the occasion and necessity for the exercise of such power. Home Building and Loan Association v. Blaisdell, supra; People v. Title Mortgage and Guaranty Co., 264 N.Y. 69; 190 N.E. Rep. 153, 156; Hourigan v. North Bergen, 113 N.J.L. 143, 151.
It must be noted that this statute does not, by its terms, limit its operation to the period of an existing emergency and this reason takes it out of the class of mere emergency legislation -- so called. But it is unnecessary to sustain the statute on the temporary ground that it is an emergency statute, because it is sustainable on broad constitutional grounds as a valid exercise of the reserved power of the state.
This so-called reserved power is generally referred to as the police power of the state and extends to all great public needs. Noble State Bank v. Haskell, 219 U.S. 104, 110; 55 L. Ed. 112; 31 Sup. Ct. Rep. 486. What are the police powers of the state?
Mr. Justice Taney, in The License Cases, 5 Howard 504, 583; 12 L. Ed. 256, 291, said:
"They are nothing more or less than the powers of government inherent in every sovereignty to the extent of its dominions. And whether a state passes a quarantine law, or a law to punish offenses, or establish courts of justice, or requiring certain instruments to be recorded, or to regulate commerce within its own limits, in every case it exercises the same power; that is to say, the power of sovereignty, the power to govern men and things within the limits of its dominion. It is by virtue of this power that it legislates; and its authority to make regulations of commerce is as absolute as its power to pass health laws, ...