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In re Petition of John Borg and Donald G. Borg Praying That Chapters 196 and 197 of Laws of 1939 Be Declared Null and Void

Decided: September 7, 1939.

IN THE MATTER OF THE PETITION OF JOHN BORG AND DONALD G. BORG PRAYING THAT CHAPTERS 196 AND 197 OF THE LAWS OF 1939 BE DECLARED NULL AND VOID


On petition for annulment of chapters 196 and 197 of the laws of 1939, based on R.S. 1:7-1 et seq.

For the petitioners, George F. Losche (Louis A. Mounier, Jr., on the brief).

For the State of New Jersey, Joseph Lanigan, assistant attorney-general (David T. Wilentz, attorney-general, on the brief).

Before Brogan, Chief Justice, and Justices Parker, Case, Bodine, Donges, Heher, Perskie and Porter.

Parker

The opinion of the court was delivered by

PARKER, J. The petition is filed under and by virtue of R.S. 1:7-1 et seq., which sections are a revision of the act of 1873 (Comp. Stat., p. 4978) entitled: "An act providing for decreeing and making known that certain laws and joint resolutions have become inoperative and void." The attack is on chapters 196 and 197 of the laws of 1939, the first entitled: "An act authorizing the payment of two million dollars ($2,000,000.00), and interest thereon, to the Teachers' Pension and Annuity Fund out of the seven million dollar bond act created by chapter three hundred and eighty-seven of the laws of one thousand nine hundred and thirty-three, when the bonds issued under such act, and the interest thereon, have been fully paid;" and the second: "An act directing the payment out of the treasury of this State to the State

Financial Assistance Commission of the sum of two million dollars ($2,000,000.00.)" The gravamen of the attack on these acts is that by them the legislature has undertaken to create a debt or liability of the state in the amount of more than $100,000 without a popular referendum, in defiance of paragraph 4 of section VI of article IV of the Constitution, which provides inter alia that "no such law shall take effect until it shall, at a general election, have been submitted to the people, and have received the sanction of a majority of all the votes cast for and against it at such election."

We are of opinion, and clearly, that as a matter of procedure the present application is misconceived. Turning to the parent act of 1873, which remained unchanged until the Revision of 1937, it will be seen that it authorizes a petition such as the present one only when there is "reason to believe that any such law or joint resolution was not duly passed by both houses of the legislature or duly approved as required by the constitution of this state." It is therefore, we think, obvious that any attack on a statute by virtue of the act of 1873 must perforce have been an attack on the machinery of enactment and not on the provisions of the statute itself; and indeed this seems to have been the uniform view of the bench and bar, as is evident from an examination of the decisions in previous cases where such petitions have been filed. Bloomfield v. Freeholders, 74 N.J.L. 261; 65 A. 890; In re Public Utility Board, 83 N.J.L. 303; 84 A. 706; In re Jaegle, 83 N.J.L. 314; 85 A. 214; In re Ross, 86 N.J.L. 387; 94 A. 304; In re Low, 88 N.J.L. 28; 95 A. 616; In re Chapter 184 of 1923, 98 N.J.L. 586; 121 A. 736; In re Hague, 104 N.J. Eq. 31; 144 A. 560. The language of the act relative to the procedure is fully quoted in the case of In re Public Utility Board, 83 N.J.L. (at p. 305), and the pertinent clause has already been quoted, viz., "that any such law * * * was not duly passed by both houses of the legislature, or duly approved as required by the constitution of this state."

The very recent case of In re Miller, 122 N.J.L. 176; 2 A.2d 522, is not to the contrary, but rests on the

failure to comply with a procedural condition precedent to the enactment of a certain special class of statutes, which condition is as much a part of the machinery of enactment as any of the legislative steps in the enactment of a general statute. Paragraph 9 of section 7 of article IV of the constitution provides that "no private, special or local bill" (note the word) "shall be passed, unless public notice of the intention to apply therefor, and of the general object thereof, shall have been previously given. The legislature, at the next session after the adoption hereof, and from time to time thereafter, shall prescribe the time and mode of giving such notice, the evidence thereof, and how such evidence shall be preserved." As appears by the report of the Miller case, ubi supra, the legislature did so prescribe; but in that case, the constitutional condition precedent of notice of intention was not complied with, and the attempted procedure of enactment without notice was simply nugatory because of having no foundation on which to rest.

But it is suggested, and indeed argued, that by the Revised Statutes of 1937 the language of the act of 1873 was so changed as that an attack by petition based on unconstitutionality in the provisions of a statute is authorized. But in our opinion the change is merely in form of language and not in legislative intent. The clause as found in R.S. 1:7-1 is "has reason to believe that any such law or joint resolution was not duly passed by both houses of the legislature, or approved by the governor, or otherwise made effective as law in the manner required by the constitution." It is argued in this case, that for the reasons presently to be discussed, chapters 196 and 197 did not and could not have become "effective as law" for reasons inherent in their provisions. Of this, more presently. But taking the revised language itself as compared with the original language, it seems entirely clear that the revised language still relates exclusively to the matter of passage and enactment, and not to the effect of ...


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