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In re Application of Joseph Lamb

Decided: April 5, 1961.

IN THE MATTER OF THE APPLICATION OF JOSEPH LAMB, JOHN ANDRYSZCZYK, JAMES COHENNY, RAYMOND MURRAY, ALFRED T. DAVIS AND THOMAS LENAHAN, APPLICANTS, FOR AN ADJUDICATION THAT CHAPTER 1, LAWS OF 1961, AN ACT ENTITLED "AN ACT TO IMPLEMENT ARTICLE IV, SECTION III OF THE CONSTITUTION AND TO RESCIND SECTIONS 52:10-1 AND 52:10-2 OF THE REVISED STATUTES" IS VOID PURSUANT TO CHAPTER 7 OF TITLE 1 OF THE REVISED STATUTES OF 1937


Goldmann, Foley and Lewis. The opinion of the court was delivered by Lewis, J.A.D.

Lewis

[67 NJSuper Page 42] These proceedings were initiated by seven citizens of the State of New Jersey, residents of the County of Hudson, questioning the constitutionality of the enactment procedure of the Legislature in the passage of chapter 1, Laws of 1961. Applicants' petition was filed

with this court pursuant to N.J.S.A. 1:7-4. It was alleged in their petition that the aforesaid statute is void on the ground that the same was not duly passed by both houses of the Legislature in a manner required by the State Constitution.

On March 6, 1961, the date of the filing of said petition, applicants, together with the Attorney General appearing at the direction of the Governor for the purpose of defending the constitutionality of the challenged legislation, requested instructions from this court as to the judicial procedure to be followed and for the scheduling of an early hearing date on the petition, at which time the matter was set down for argument on March 20. The applicants were directed to give notice thereof to each of the county clerks of the several counties of the State of New Jersey and to the clerks of the New Jersey Senate and the New Jersey Assembly, respectively. There is no genuine issue as to any material fact in dispute and the essential facts have been stipulated and briefs submitted.

Applicants' motion for judgment on their petition and the cross-motion by the Attorney General as well as his motion for summary judgment of dismissal were made and orally argued before this court on the hearing date so scheduled. No additional appearances have been entered in the cause.

Our judicial inquiry in these proceedings is limited to the constitutionality of the legislative procedure of enactment and does not extend to the constitutionality of the statute enacted. In re McGlynn , 58 N.J. Super. 1 (App. Div. 1959); In re Freygang , 46 N.J. Super. 14 (App. Div. 1957), affirmed per curiam 25 N.J. 357 (1957); In re An Act Concerning Alcoholic Beverages , 130 N.J.L. 123 (Sup. Ct. 1943).

The legislative history and facts may be briefly summarized as follows:

The legislative year commenced with the opening session on January 10, 1961. On January 30, 1961, both branches

of the Legislature convened and respectively adopted a concurrent resolution to meet in joint session that afternoon in the Assembly Chambers for the purpose of receiving the annual budget message of the Governor.

Thereafter the Senate reconvened and Senate Bill No. 65, entitled "An Act to implement Article IV, Section III of the Constitution and to rescind Sections 52:10-1 and 52:10-2 of the Revised Statutes," was introduced, received first reading by its title and, under suspension of rules as an emergency measure, was advanced for the required number of readings, submitted to vote and affirmatively passed by 17 votes, none in the negative. The General Assembly likewise reconvened after the joint session and embarked upon its usual business. The Speaker of the House was advised that Senate Bill No. 65 had passed in the upper house. No action, however, was taken thereon by the Assembly before it adjourned. Notwithstanding the presence of the Majority Leader John W. Davis in the Assembly and the fact that motions for adjournment in that chamber are "usually and customarily made by the Majority Leader if he is present," Assemblyman Hauser was recognized by the Speaker of the Assembly and he offered the following resolution, which was not made on behalf of the Majority Leader:

" Be It Resolved , That when the General Assembly adjourns, it be to meet on Thursday, February 2, at 10 o'clock A.M., and that when it then adjourn it be to meet on Saturday, February 4, at 10:00 o'clock A.M., and that when it then adjourn it be to meet on Monday, February 6, 1961 at 11:00 o'clock A.M., Eastern Standard Time."

This resolution passed.

Later the same day, January 30, the Governor sent telegrams to all members of the General Assembly calling them back on Wednesday, February 1, 1961. They read:

"I am calling a session of the General Assembly for Wednesday, February 1, 1961, at 11:00 A.M. to act on reapportionment. The public interest requires this session."

and in the telegrams to the Democratic members an additional paragraph was included advising them that "A meeting of all Democratic members of the General Assembly will be held in my office at 9 A.M. the same day."

There are two vacancies in the General Assembly, 58 members presently occupying seats therein; 57 of the 58 members responded in person to the Governor's call and were in session on Wednesday, February 1, 1961. The only absent member was Assemblyman Martin who, on January 31, 1961, telegraphed the Governor advising him that previous business commitments would prevent his attendance.

The minutes of the General Assembly disclose that the Assembly convened at 11:50 A.M. on February 1, 1961, 54 members answering the morning roll call. A resolution was passed rescinding the January 30 motion of adjournment, and was followed by a resolution constituting the General Assembly as meeting in regular session at 11 o'clock on Wednesday, February 1, 1961. Assemblyman Hauser voiced opposition to the proceeding as illegal and unconstitutional on the single ground that "the Governor cannot convene the Assembly alone." Assembly Minutes , February 1, 1961, p. 169. Whether or not his objection was made before or after the adoption of said resolution has not, as a factual matter, been resolved; but it is clear that no action was sponsored or taken on the objection and that Assemblyman Hauser thereafter participated in the session and voted upon the resolutions considered.

On motion, the General Assembly was placed under call, 55 votes being cast in the affirmative (including the vote of Assemblyman Hauser), none in the negative, 3 absent. When the Assembly reconvened that afternoon at 1:30 P.M., 56 members answered the roll call; Assemblymen Martin and Werner did not. Werner, although absent at the roll calls, was present during the session and voted on resolutions which were considered during the morning and afternoon sessions. The only absent member was Assemblyman

Martin, who had telegraphed the Governor as to his inability to be present.

Senate Bill No. 65 was considered during that afternoon session and, under suspension of the rules without committee reference, was passed by a vote of 44 in the affirmative and 10 in the negative. Assemblyman Hauser participated by voting in the negative. The emergency measure resolution which preceded its passage (as required by Art. IV, Sec. IV, par. 6 of the 1947 Constitution) received 45 votes in the affirmative, 1 in the negative. That same afternoon the bill was duly signed, sent to the Governor, approved by him and filed with the Secretary of State, and was designated as chapter 1, Laws of 1961.

It was stipulated that this court may take judicial notice of the facts pertaining to the apportionment of the New Jersey Assembly representation as they relate to the failure to reapportion since 1950, the numerous bills introduced to accomplish reapportionment, the circumstances of the Asbury Park Press, Inc. v. Woolley case , 33 N.J. 1 (1960), and that an appeal in those proceedings was reactivated and reargued before the New Jersey Supreme Court on January 23, 1961; and that on Tuesday, January 31, 1961, John Gildea, clerk of the court, notified the press that a decision of the Supreme Court of New Jersey in that litigation would be handed down by the court in Newark at 5 P.M. on February 1, 1961. The announcement of the court's intention to render its decision was publicized in the press and became generally known throughout the State. Late in the afternoon of February 1, 1961, it was announced that the Supreme Court would not render an opinion in the Asbury Park Press case, as the issue raised therein had become moot.

Applicants predicate their contention upon three major points which were briefed and argued. They are: the Governor did not lawfully convene or call or assemble the General Assembly on February 1, 1961; the General Assembly has no power to convene itself in adjournment, especially

without giving notice of its intention to enact legislation; and the public cannot be estopped from requiring the law makers to comply with the law.

I.

Applicants advance the doctrine of separation of powers and refer to Article III of our 1947 New Jersey Constitution , entitled "DISTRIBUTION OF THE POWERS OF GOVERNMENT" and providing:

"The powers of the government shall be divided among three distinct branches, the legislative, executive and judicial. No person or persons belonging to or constituting one branch shall exercise any of the powers properly belonging to either of the others, except as expressly provided in this Constitution."

It is urged that the Governor cannot exercise any legislative function or power except as expressly provided in the Constitution and that there can be no implied powers in any one of the three distinct branches vis-a-vis any other.

Webster defines "expressly" to mean "in direct terms." It is true that our Constitution of 1947 does not "in direct terms" empower the Governor to convene or call or assemble the General Assembly as such. It does not necessarily follow that he is constitutionally limited from so doing. The word "expressly" should not be carved out of its context. The constitutional mandate is against one branch of government exercising "any of the powers properly belonging to either of the others, except as expressly provided in this Constitution." We must, accordingly, look to the entire instrument.

The various provisions of our Constitution with respect to the three divisions of government must be read, analyzed and interpreted together in determining the intended objectives of this fundamental and basic document. Note in particular:

Article V, Section I, par. 11, first sentence:

"The Governor shall take care that the laws be faithfully executed."

Article V, Section I, par. 12:

"The Governor shall communicate to the Legislature, by message at the opening of each regular session and at such other times as he may deem necessary , the condition of the State, and shall in like manner recommend such measures as he may deem desirable. He may convene the Legislature, or the Senate alone, ...


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