For denial and remandment -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. Opposed -- None. The opinion of the court was delivered by Haneman, J.
[54 NJ Page 72] On June 14, 1968 plaintiffs filed a two-count complaint in the Superior Court, seeking to enjoin the enforcement of the "Milk Dating Law." N.J.S.A. 24:10-57.23. The first count alleged that the statute had been passed by the State Senate in a manner contrary to the New Jersey Constitution and contrary to common law.
The second count raised various constitutional objections to the substance of the statute.
The Court determined it lacked jurisdiction of the first count, see N.J.S.A. 1:7-4, and transferred the cause to the Appellate Division pursuant to R.R. 1:27 D (a) (b). Prior to argument there, this Court certified the case on its own motion. R.R. 1:10-1.
Since no testimony was heard by the trial court, the parties entered into the following stipulation of facts in lieu of record. See R.R. 1:6-2; R.R. 2:6:
"1. On March 20, 1967, the Senate of New Jersey acted favorably on a bill which was introduced in the Senate (S.15) and which was subsequently passed upon favorably by the Assembly and signed by Governor Richard J. Hughes as L. 1967, c. 92 § 1, otherwise known generally and hereinafter referred to as the 'Milk Dating Law,' codified as N.J.S.A. 24:10-57.23.
2. On March 20, 1967, Senator Sido L. Ridolfi was the President of the Senate of New Jersey.
3. At the time the Senate acted favorably on the bill which became the Milk Dating Law, the functions, powers, duties and emoluments of the office of Governor devolved upon Senator Sido L. Ridolfi as President of the Senate, pursuant to Article 5, Section 1, Paragraph 7, New Jersey Constitution of 1947.
4. The bill which became the Milk Dating Law received affirmative votes from 15 Senators, the minimum number of favorable votes required by the rules governing the Senate on March 20, 1967. Included in the 15 affirmative votes was an affirmative vote case by Senator Sido L. Ridolfi."
I. The casting of a decisive legislative vote by the President of the New Jersey Senate at a time when he had assumed the powers and duties of the Governor by virtue of Art. V, § 1, par. 6 and par. 7, of the 1947 New Jersey Constitution, contravenes the doctrine of separation of powers guaranteed by Art. III of that Constitution.
II. The exercise of legislative power by the President of the Senate while he is acting Governor of the State constitutes the holding of incompatible public offices ...