Conford, Lewis and Collester.
This appeal has been brought to review the refusal of the New Jersey Racing Commission to process for consideration an application by appellant filed July 31, 1968 for an original permit to conduct a harness race meeting in the Township of North Bergen, County of Hudson. The refusal was based on the advice of the Attorney General that under N.J.S.A. 5:5-39.1 the Commission was without authority in the matter.
The cited section of the racing law provides, among other things, "that the same public question [whether race meetings shall be permitted in a county] shall not be submitted to the legal voters of the same county oftener than once in five years." A referendum occasioned by a provisional permit granted appellant by the Commission in 1967 for a harness race meeting in the Town of Secaucus, Hudson County, was defeated at the general election that year as a result of an adverse poll thereon by the voters of Secaucus, although approved by the voters of the county at large. This had the effect of defeating the 1967 application, as the statute requires a county referendum as a condition of ratification of any provisional original permit granted by the Commission,
and further declares that in the event that a majority of the votes cast in either the county or the municipality where the race meeting is proposed to be held shall have been cast against the public question the provisional license shall be cancelled. N.J.S.A. 5:5-39.1.
Appellant has mounted several constitutional attacks against the statute as interpreted by the Attorney General, and initially suggests these questions can be avoided if the statutory five-year moratorium aforementioned is held not applicable on the ground that the proposed 1968 referendum would concern a different "public question," because involving a track in a different municipality from Secaucus. This approach cannot be indulged as the statute itself (N.J.S.A. 5:5-39.1) frames the public question for all such referenda as:
"Shall . . . (insert running race meetings or harness race meetings, as the case may be) be permitted in the county of . . . (insert name of county)?"
The statutory intent is thus seen to be to pose to the county voters the question whether the county should have a race meeting, whether of the "running" or "harness" variety. The fact that only the proposition of a Secaucus meeting was pending before the Commission is irrelevant to the correctness of the thesis that it was the object of the Legislature to have the county voters determine whether there should be a race meeting in the county. Also irrelevant to the issue as to what public question the voters were passing upon is the circumstance that the Legislature in the same statute ordained for itself (not leaving the matter to the voters, whether of Secaucus or the county) that the pending application should be denied if a majority of the voters, either of the town or of the county, should vote against the public proposition (i.e., whether the race meeting should be permitted in the county).
We also disagree with appellant's argument that unless the previously discussed contention is accepted the statute
is rendered unconstitutional because it "gives the Town of Secaucus a veto power over Hudson County in determining whether a question concerning harness racing should be placed on the ballot within the next five years." This effect, so it is argued, amounts to a delegation of legislative power in contravention of the Constitution.
Preliminarily, neither side disputes that no improper delegation of legislative power occurs by mere reason of the fact that a general statute renders its incidence in a subordinate governmental jurisdiction subject to popular referendum of the voters therein. Paul v. Gloucester County, 50 N.J.L. 585 (E. & A. 1888); Noonan v. Hudson County, 52 N.J.L. 398 (E. & A. 1890); Two Guys from Harrison, Inc. v. Furman, 32 N.J. 199, 231 (1960). But appellant contends that here there is the fatal flaw that the Legislature has delegated to the Secaucus voters the determination whether or not there shall be a five-year moratorium in the entire county.
We are satisfied that the Attorney General provides the dispositive answer to the contention when he points out that it is the Legislature itself, and not the voters of Secaucus, which has established the moratorium. There is not a word about any moratorium in the public question voted upon by the Secaucus voters -- which question, as noted above, is, by express direction of the Legislature, whether there shall be a harness race meeting in Hudson County. The distinct identity and nature of the five-year hiatus in referenda declared by the Legislature, as contrasted with the nature and object of the particular referendum held in 1967, is highlighted by the circumstance that under the statute the moratorium applies whether or not the initial referendum carries. There is an absolute, unqualified prohibition of a submission to the voters of "the same public question" more often ...