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Driscoll v. Sakin

Decided: April 21, 1939.

ALFRED E. DRISCOLL, RESPONDENT,
v.
MEYER L. SAKIN, APPELLANT



On appeal from the Supreme Court, whose opinion is reported in 121 N.J.L. 225.

For the respondent, Louis B. LeDuc.

For the appellant, Meger L. Sakin, pro se.

Per Curiam.

The judgment under review herein should be affirmed, for the reasons expressed in the opinion delivered by Mr. Justice Bodine in the Supreme Court.

For affirmance -- THE CHANCELLOR, PARKER, CASE, DONGES, PERSKIE, PORTER, WELLS, JJ. 7.

For reversal -- HETFIELD, DEAR, WOLFSKEIL, RAFFERTY, JJ. 4.

RAFFERTY, J. (Dissenting.) This suit was instituted under section 1 of the Quo Warranto act by the relator as a citizen and taxpayer of Camden county, to test the legal right of the present appellant to hold the office of one of the Republican members of the Camden County Board of Elections. Defendant interposed a plea admitting and justifying his occupation of the office. To this plea relator filed a demurrer which was sustained by the Supreme Court. Judgment of ouster followed.

The Supreme Court based its finding on R.S. 19:6-17, et seq. This statute contemplates nomination of a member of the County Board of Elections by the state chairman of each of the two most powerful political parties, the nominee to be commissioned thereupon by the governor. The Republican state chairman did not nominate appellant for the office, but did name one Walton.

The question involved is whether the appellant could legally hold the office, not having the nomination of the state chairman. It does not involve the question of the power of the court to compel the governor to appoint the nominee of the state chairman nor the doctrine of separation or integration, as the case may be, of governmental power.

I favor reversal of the Supreme Court upon the view that the legislature could not delegate to an entity not governmental, the power of appointment to public office.

The content of governmental power is fixed by article 3, section 1, of the Constitution, as residing exclusively within the three distinct departments of government, "The powers of the government shall be divided into three distinct departments;" and the vesting of the power of appointment to public office in any person not included within either of these three distinct departments, it seems to me, is illegal as being without the scope of this constitutional provision. There is implicit therein the direction that the powers of government shall reside nowhere except in the "three distinct departments."

It seems to me incontrovertible that the legislature did, in this case, repose in the respective state chairmen of the two major political parties the power of appointment to public office. The statute provides that the chairman of the state committee of each political party shall, during the month of February in each year, nominate a person for a member of the County Election Board, and that the governor shall commission such appointee. R.S. 19:6-18. It will be seen from this statutory scheme that the governor is entirely without discretion and is required to commission the nominee of the chairman of the state political party, which in effect can mean nothing else than that the chairman of the state political party appoint a public officer.

In Rouse v. Thompson, 228 Ill. 522; 81 N.E. Rep. 1109, the Supreme Court of Illinois considered a state statute providing that "the county central committee of each political party shall designate and establish delegate districts in their respective counties on or before, &c., &c." Citing People v. Bennett, 29 Mich. 451, the court said:

"It is not in the power of a legislature to abdicate its functions or to subject citizens and their interests to the interference of any but lawful public agencies. * * * Such legislative and local authority as can be delegated at all must be delegated to municipal corporations or local boards and officers. * * * If it can be delegated at all, * * * it must be delegated to some body recognized by the constitution as capable of receiving such authority. * * * It is ...


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