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Brown v. Heymann

Decided: December 4, 1972.


For judgment for defendant -- Chief Justice Weintraub, Justices Jacobs, Proctor, Hall and Mountain, and Judges Conford and Sullivan. Opposed -- None. The opinion of the Court was delivered by Weintraub, C.J.


This case involves the Reorganization Plan for the Department of Labor and Industry adopted by the Governor under the Executive Reorganization Act of 1969, N.J.S.A. 52:14C-1 et seq. The complaint was filed in Superior Court, Chancery Division. In part the complaint attacks the mode of adoption of the plan, and since the reorganization act provides that a reorganization plan "shall have the force and effect of law" and shall be published with the public laws, N.J.S.A. 52:14C-7(c), the trial court viewed the complaint to be, in that respect, an action for the annulment of a law on the ground that it was not "duly passed" and for that reason to come within N.J.S.A. 1:7-1 et seq., which provides for a summary proceeding in such matters before the Appellate Division. The trial court accordingly transferred the cause to the Appellate Division. We certified the matter before judgment in the Appellate Division.

The order of transfer to the Appellate Division was not limited to the issue of the regularity of the adoption of

the plan. Since all the issues can be resolved fairly in the present proceeding and no one questions this procedure, we will go directly to the merits.


Plaintiffs attack the constitutionality of the reorganization act. Under that act, the Governor is authorized to prepare a reorganization plan and deliver it to both houses of the Legislature, N.J.S.A. 52:14C-4. A plan will take effect unless both houses shall within 60 days after such delivery pass a concurrent resolution "stating in substance that the Legislature does not favor the reorganization plan," N.J.S.A. 52:14C-7(a). The plan, if not thus disapproved, "shall have the force and effect of law" and will be published with the public laws, N.J.S.A. 52:14C-7(c). The reorganization act further provides that all acts or parts of acts "inconsistent * * * with a reorganization plan adopted hereunder, are, to the extent of such inconsistency, hereby repealed." N.J.S.A. 52:14C-11.

Plaintiffs say that this method of adopting a reorganization plan violates the mandate of the State Constitution that a bill shall not pass unless a majority of all the members present in each house shall agree thereto, Art. IV, § 4, para. 6, and the further mandate that the bill shall then be presented to the Governor for his consideration, Art. V, § 1. para. 14. They contend also that under the reorganization act the Governor would exercise legislative power in violation of Art. III, para. 1, which reads:

"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."

Plaintiffs do not say the delegation to the Governor of authority to adopt a reorganization plan is defective for lack of adequate standards for the exercise of the delegated

power. The standards are plainly sufficient. They are found in the statement of the purposes to be achieved, N.J.S.A. 52:14C-2(a), and in the specification of what a reorganization plan may do, N.J.S.A. 52:14C-4(a), and may not do, N.J.S.A. 52:14C-6(a). Rather plaintiffs contend the power to reorganize is nondelegable, that is, it must be exercised by the Legislature itself, and perhaps also that the reservation of the authority in both houses to disapprove a plan renders invalid a delegation of power which, but for that reservation, would be constitutionally permissible.

Our statute, as the statement annexed to the bill reveals, was patterned upon the federal Executive Reorganization Act, 5 U.S.C.A. § 901 et seq. There, too, the chief executive is authorized to prepare plans for reorganizations within his branch of government, to become effective unless disapproved by either house of the Congress rather than by both houses as under the New Jersey statute, 5 U.S.C.A. § 906(a).

The constitutionality of the federal act was sustained by three-man courts in Isbrandtsen-Moller Co., Inc. v. United States, 14 F. Supp. 407 (S.D.N.Y. 1936), affirmed on other grounds, 300 U.S. 139, 57 S. Ct. 407, 81 L. Ed. 562 (1936), and Swayne & Hoyt v. United States, 18 F. Supp. 25 (D.D.C. 1936), affirmed on other grounds, 300 U.S. 297, 57 S. Ct. 478, 81 L. Ed. 659 (1937). In the first cited case, the trial court readily found the standards were adequate to contain the exercise of the delegated power. As we have said, plaintiffs do not question the sufficiency of the standards in our statute. With respect to the issue before us, the federal court said in that case (14 F. Supp. p. 412):

"As it [the Congress] did not confer upon anyone functions it was bound to keep and exercise for itself, there was no failure to preserve the required separation of governmental powers."

In both cases, the United States Supreme Court found it unnecessary to pass upon the constitutional issue. The question

has not since been raised. It is safe to say the constitutionality of the federal statute is now accepted.

Apparently the only other opinion involving such statutes is Opinion of the Justices, 96 N.H. 517, 83 A.2d 738 (Sup. Ct. 1950). There the Governor called for an advisory opinion as to the constitutionality of the New Hampshire executive reorganization act. The statute, as revealed by the opinion, was the same as ours in relevant aspects. The New Hampshire court split 3 to 2, the majority finding the statute to be invalid.

The majority opinion did not find the Legislature could not delegate to the Governor authority to adopt plans of reorganization. Rather the majority found there in fact was no delegation, saying (pp. 740-741):

"We do not conceive that these provisions constitute a delegation of legislative authority to the Governor. Rather the authority is withheld entirely to the Legislature to determine whether the plans which he submits shall or shall not become law. They do not become law upon transmittal, nor by the lapse of time merely. Only the lapse of twenty-five 'legislative' days, coupled with inaction on the part of the Legislature, or its adjournment during the period, is sufficient under the act to give to the plan or plans the character of law. When filed they are no more ...

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