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In re Application of Edward R. McGlynn

Decided: July 1, 1959.

IN THE MATTER OF THE APPLICATION OF EDWARD R. MCGLYNN, ROBERT E. KROUSE AND BENJAMIN C. LONDA, APPLICANTS, FOR AN ORDER OF ADJUDICATION, ETC. RE: CHAPTER 46, LAWS OF 1959, ETC., PURSUANT TO CHAPTER 7 OF TITLE 1 OF REVISED STATUTES


On motions to dismiss application.

Goldmann, Freund and Haneman. The opinion of the court was delivered by Goldmann, S.j.a.d.

Goldmann

The applicants, three citizens of the State of New Jersey, have applied to the Appellate Division, pursuant to N.J.S.A. 1:7-4, for an adjudication that the statute now known and designated as chapter 46 of the Laws of 1959 was not made effective as law in the manner provided by the Constitution, and is therefore void.

On June 3, 1959 notice was served on the Attorney General that the application would be presented to this court and an order sought defining and determining the procedure to be followed. The matter was set down for June 15, at which time the applicants were directed to give public notice, by publication in eight designated newspapers throughout the State, that any citizen might appear in defense of the purported law, and subpoena and examine and cross-examine witnesses. See N.J.S.A. 1:7-2 and 5. Notice of intention

to do so was to be filed on or before June 26. The notice was duly published, but no citizen responded.

On June 15 the following were, on application, permitted to intervene in defense of the purported law: Walter H. Jones, on behalf of the Senate of New Jersey; Elmer M. Matthews, on behalf of the General Assembly of New Jersey, and for himself individually; and Frederick J. Gassert, on behalf of the New Jersey Association of Private Colleges and Universities, and for himself individually. Senate President Wesley L. Lance was permitted to appear as amicus curiae , as was the Attorney General of New Jersey. A full hearing of the matter was set down for July 1, at which time the court would inquire summarily into the circumstances to determine whether the constitutional and statutory provisions relating to the enactment and approval of laws had been complied with. See N.J.S.A. 1:7-2 and 3.

In the meantime, each of the three intervenors moved to dismiss the application for failure to state a cause of action upon which the relief sought could be granted, claiming that the admissible factual allegations of the application failed to establish that chapter 46 was not enacted in a valid manner, but on the contrary showed that it had been duly passed by both Houses of the Legislature and made effective as law in the manner required by the Constitution. The motions were argued June 22, 1959, at which time we determined that they be held until the scheduled hearing of July 1 had been concluded and the record closed. Counsel were instructed that the court particularly desired further information "regarding the factual basis for the final certification to Senate Bill No. 2 (which became Chapter 46) by the Speaker of the House of Assembly, and also as to whether the Senate, in sending that bill to the General Assembly, failed to accompany it with the objections of the Governor."

The matter was fully heard, argued and decided on July 1. This opinion amplifies the oral conclusions we made at that time, resulting in a dismissal of the application.

I.

The argument advanced by the applicants, summarized in II below, makes necessary a brief review of the legislative history of Senate Bill No. 2 as well as two other bills, Senate 259 and Senate 264, intended as amendments of Senate 2.

Senate 2 was introduced January 13, 1959. The title of the bill was:

"An Act concerning higher education, providing for the creation, award and administration of State competitive scholarships for use by qualified students in any accredited New Jersey institution of collegiate grade, and repealing section 18:16-33 of the Revised Statutes."

It passed on third reading on January 19, 1959 by a vote of 20-0, and on the same day was sent to the House of Assembly, where it was finally passed on May 4, 1959 by a vote of 39-3. The bill then went to the Governor, who returned it to the Senate on May 11, 1959 for reconsideration, with his objections, pursuant to Art. V, Sec. I, par. 14(b) of the State Constitution.

Senate 2, to be known as the State Competitive Scholarship Act, established a general college scholarship program to be administered by a newly created State Scholarship Committee consisting of the Commissioner of Education and eight other members to be appointed by the Governor. Scholarships would be $400 or the amount charged for tuition, whichever was less. The grants would be based mainly on financial need and the result of a single competitive examination. The number of scholarships to be awarded annually was to equal 5% of the total number of students graduating from approved New Jersey high schools during the school year preceding the examination. Each scholarship was to be for a period of four academic years, conditioned upon the holder achieving satisfactory academic progress and being regularly enrolled in an institution of collegiate

grade in New Jersey, accredited by the State Board of Education.

In his conditional veto message to the Senate the Governor stated it to be his firm belief that "the sound evolution of our society depends upon extending educational opportunities to those who have the capacity for advancement but lack the financial means." For this reason, he said, he had twice recommended to the Legislature the adoption of a scholarship program. He noted that at a public hearing he had called to learn the views of all interested in the matter, it had generally been agreed by those who spoke, including those who felt the bill should be signed as it stood, that Senate 2 presented a number of difficult problems. The Governor declared it to be "in the public interest to adopt a new scholarship law." His message then called attention to a patent constitutional infirmity which precluded him from accepting the bill in its then form, as well as certain other features of the legislation which, in his view, required correction.

The constitutional infirmity to which the Governor referred was that the bill established a scholarship commission with no attachment to the administrative structure of the State Government, contrary to the mandate of Art. V, Sec. IV, par. 1 of the State Constitution requiring that all administrative offices be allocated by law among and within the principal executive departments. It was his recommendation that the proposed commission be established as an advisory commission to the State Board of Education and within the Department of Education.

The Governor then proceeded to point out that (1) under the proposed legislation scholarships to the six State colleges and to Rutgers Law School, as well as those given as part of the program carried out by the State Rehabilitation Commission, would be cut off. This he considered undesirable. (2) The attempt to fix the number of scholarships on a formula of 5% of the previous year's high school graduating class was unwise; the number ought to be determined

by the dollar amount available for appropriation, and by the number of eligible students. (3) Restricting use of the scholarships to in-state colleges was not justifiable because of New Jersey's proximity to the colleges of Pennsylvania and New York and because we did not presently have educational facilities of the size and variety enjoyed by other states, like California and New York. (4) The bill properly required a showing of financial need as well as scholastic promise, but failed to take into account certain situations (which the Governor described) where need should be more realistically assessed. (5) Finally, the scholastic factor could not fairly be tested solely on the basis of a single competitive examination; other relevant factors should be taken into account and standards established as to the relative weight to be given scholastic promise and financial need.

In the light of these observations the Governor recommended to the Senate that it make 35 amendments to the bill. Some of these were of a major character; others were intended by way of clarification and accuracy of expression, or were merely formal.

The conditional veto message was received and read in the Senate on May 11, 1959. On May 18 Senate 2 was reconsidered and passed by a vote of 15-0, "the objections of the Governor to the contrary notwithstanding."

On the same day there was introduced Senate Bill No. 259 entitled:

"An Act to amend and supplement 'An Act concerning higher education, providing for the creation, award and administration of State competitive scholarships for use by qualified students in any accredited New Jersey institution of collegiate grade, and repealing section 18:16-33 of the Revised Statutes.'"

The bill was at once advanced to third reading as an emergency measure by a vote of three-fourths of all the members of the Senate (1947 Const., Art. IV, Sec. IV, par. 6), and passed 16-0. However, three days later, on May 21, the

bill was reconsidered and placed back on second reading for further consideration. No further action was thereafter taken on the bill.

After Senate 259 had been placed back on second reading, there was introduced Senate Bill No. 264, entitled

"An Act to amend the title and body of 'An Act concerning higher education providing for the creation, award and administration of State competitive scholarships for use by qualified students in any accredited New Jersey institution of collegiate grade, and repealing section 18:16-33 of the Revised Statutes.'"

The bill was read the first time by its title, advanced to second reading without reference, passed on second reading, and ordered to have a third reading. Four days later, on May 25, the bill was considered and passed by a vote of 16-0.

Senate 264 was sent to the Assembly on May 25. After passing on second reading, it was advanced to third reading as an emergency measure, under a resolution adopted by more than a three-fourths vote of all the members of the Assembly.

At this point the Assembly, instead of finally voting on Senate 264, took up Senate 2 which had been sent over from the Senate that day with a message that it had been reenacted, "the Governor's objections thereto notwithstanding," and requesting Assembly concurrence. It was then regularly moved that Senate 2 "be reconsidered and that it become a law, the Governor's objections thereto notwithstanding." The motion was adopted by a vote of 48-6 (later changed to 47-7 when an assemblyman requested that his affirmative vote be recorded in the negative).

Directly after this action the Assembly took up Senate 264 on third reading under the emergency resolution and passed the bill by a vote of 47-3.

Following the passage of Senate 2 in the Assembly over the Governor's veto, it was returned to the Senate. The Senate President then delivered it to the Secretary of State, who assigned it chapter number 46 of the Laws of 1959.

The Assembly also sent Senate 264 back to the Senate. (We note, in passing, that it was delivered to the Governor subsequent to the hearing and our determination of July 1, but he did not sign it until July 27, 1959. It was given chapter number 150 of the Laws of 1959).

II.

Applicants allege that the Senate, in approving Senate 264, thereby adopted certain amendments to Senate 2, with like effect as though physically incorporated therein, and that from that time on Senate 2 and Senate 264 were, "in contemplation of law, a single instrument albeit contained in two separate documents." Further, that when the General Assembly received these two bills on May 25, it had before it "a single legislative bill," and although it proceeded to approve the same "in two steps and by two votes, its final action constituted, in legal contemplation, a single reenactment, with amendments, of Senate Bill No. 2."

The argument is best stated in the words of the application itself:

"24. In form, the Senate and General Assembly purported to reconsider Senate Bill No. 2 and to pass or approve the same by two-thirds of all the members of each house, and such action, if legally effective would operate to render Senate Bill No. 2 a law upon such approval by the General Assembly on May 25, 1959, pursuant to Article V, Section I, paragraph 14(a) of the Constitution.

25. Applicants allege that despite the form, the substance and effect of the above-described action in the two houses was to amend and reenact Senate Bill No. 2 and that the consequences thereof are governed by the provisions of Article V, Section I, paragraph 14(b) of the said Constitution, under and by which the same did not become a law."

Applicants, by way of conclusion of law, aver that

"* * * the provisions of the Constitution are operative according to the substance and the fact of the action of the Legislature, without regard to the form taken or procedure followed, and * * * the consequences of amending and reenacting a bill which has been ...


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