The Newark star and Newark advertiser. [volume] (Newark, N.J.) 1909-1909, 1909-08-12
BRIEF
IN NJ GU|NNESS
CASE IS FILED
Old Fight Over Office of County
Collector Which Went to
Appeals Court.
LEGISLATIVE POWERS
FULLY REVIEWED
Intricate Legal Points Examined
and Subject Is Made Clear
by Ex-Sheriff.

Frank H. Sommer, of Somner, Colby
& Whiting, who, with Herbert Boggs
and Chandler W. Riker, had acted as
counsel for Patrick j. McGuinness. in
his fight to retain the position ofscoun-
ty collector of this county. today filed
his brief on re-argument in compliance
with the Instructions of the judges of
the Court of Errors and Appeals.
The paper is a voluminous affair cov-
ering 1o4 printed pages and incidentally
treats of the development of various
cities from the year 1902. AS a treatise
on the civil service law it is highly i'm
portant, and has been eagerly awaited
by various members of the bar, who
have asked for copies. The subject is
covered by Mr.. Sommer in an exhaus-
tive manner and has occupied a great
deal of time.
The brief furnishes a most complete
treatise on civil service.
The situation, cut of which grew the
dispute, arose when the last Board of
Freeholders under the civil service law
appointed Richard w. Booth to sue
coed Mr.. McGuinness as county col
lector. The latter took the matter into
court before Justice Swayze on quo
warranto proceedings, but the latter
held that the office was for a fixed
term, n therefore he would not de-
eide upon the constitutionality of the
law.
The matter was then taken into the
Court of Errors and Appeals and set
down for argument as the first case
at the last term of court. Here Attor-
ney-General Edmund Wilson stepped
into the case. After argument the
judges submitted the two following
questions and asked counsel to file
briefs:
1. Is an act of the legislature valid
which confers, subject to a referendum
to the voters of a municipality, local
governmental powers to be exercised in
the municipality, upon a commission
the members of which are not selected
from among the citizens of the NUM-
cipality? In other words, can the legis-
lature, under such a form of govern
ment as ours, delegate municipal gov
ernmental powers to a commission the
members of which are not selected
from among the citizens of the munich
pality, even though the exercise of
those powers in the municipality by the
commission is made to depend Upon the
consent of the voters thereof?
2. Assuming that the Legislature has
such authority, can it, after creating a
commission so composed, and clothed
with such powers. delegate to the gov
erning body of such municipality. in
stead of to the voters thereof, the deter
mination of the question whether the
powers conferred upon the commission
shall be exercised by it in the munich
pality, or, to state it in another way,
can the Legislature delegate to the gov
erning body of a. municipality the
power to surrender to a commission, SO
composed, or to retain to itself, as it
shall see fit, governmental powers
which 1t has heretofore exercised?
Mr.. Sommer goes into the power of
the Legislature to make such laws and
cites numerous laws relating to the
~ oioNi uio1dESiOI. I1C dlSo HELL
tions the Incorporation of numerous
cities, among them being Perth Amboys
New Brunswick, Burlington, Elizabeth
and Trenton. Mention is also made of
an act, dated 1903, to ascertain the
boundary lines of the several streets
OF the "townplat" of Newark. In the
summary of the citations to prove the
power of the legislation along this line
0f on a Rf M nrtc - na-a1J4
1T seems to us, then, that there is
no foundation upon which a claim to
the existence in this State of a funda-
mental and extra constitutional right
to local self-government can be built.
and That the power of the Legislature
to delegate municipal government
functions to officers and commissions
In whose selection the municipality
affected has no part, is clear"
After a further recitation of differ
ent acts. the brief concludes:
That the questions propounded by
the court cannot be answered in the
negative without putting aside alto
gether our constitutional and legisfa-
tive history, both as a province and a
State, and multiplying the prior adjudi-
cations of our courts.
10 a hc5dllNt answer involves the
ousting of tile State from its position
of sovereign supremacy and the raising
OF the municipal subdivisions which It
creates to the position of minor sover-
eighties.
That such answer will leave the SOW
ereign State helpless effectively to
guard Itself against the maladministra-
ton of the sovereign powers which IL
delegates to it's municipal subdivisions
and fettered and hampered in the crisis
of an abuse or reputation of it's laws
by the people of a municipality and it's
locally elected or appointed governing
and administrative officials.
That such an answer, BECAUSE of the
impossibillty of defining with any de-
gree of distinctness the limitations of
the right of municipal self-government,
an impossibility hat has caused courts
first declaring the existence of the
right subsequently to abandon such
position, will substitute for the rule
of the constitution the varying rule
of the majority, from time to time, of
those who sit Ia our court of last re-
sort. and the ideas that may for the
time prevail with them as to govern
mental policy.
That UGH results are fraught with
graver danger than any that may flow