Newark evening star and Newark advertiser. [volume] (Newark, N.J.) 1909-1916, 1913-04-10
ADVISED TO SIGN
SMALL BOARD ACT
BY That Means, Opinion to
Fielder Says, Courts May
Pass on 1t.
IFrom 3 stan corre.pondent.l


TRENTON. N. j.. April 1o.-Nelson
B. Gaskill. assistant attorney-gen-
eral. has forwarded to Governor
Fielder an opinion on Assembly bill
No 64S. the small board of freehold
ers' act The governor wished par
ticularly to be informed on the con-
stitutionality of a provision in the
act restricting it's operation so that
it shall not become effective in any
county containing population OF
less than 10000, or in any county
which has not adopted the small
board Of freeholders. until the pro-
visions of the act have been adopted
by a referendum.
THE effect of this proviso.' the
opinion says, sis to render the act
mandatory without a referendum In
counties containing a population of
more than fifty thousand inhabitants,
and in those counties which have
heretofore cast a majority vote in
favor of the small board of freehold
ers. The determination of the con-
stitutionality of this restriction in
wolves the application of the consti-
tutional mandate against special laws
regulating internal affairs of coun-
ties to two classes, one of which is
based upon a population limit, and
the other upon a characteristic de-
termination by the previous casting
Of a vote in favor of the small board
Of freeholders
while ii is true that in a number
of cases the courts have sustained
classification by population as not in
violation of the constitutional pro-
vision referred TO, yet the range OF
these decisions is such that it is prac-
tically impossible to forecast with
certainty the attitude of the court in
any given case, however strongly the
view of the preliminary Interpreting
authority may incline in one direction
or the other. So, while the matter
is not free from doubt. starting with
the presumption which exists that
every act OF the Legisla ture is valid
and the burden of proof is upon him
who asserts the contrary, and re-
9arding the numerous acts of similar
character which have been sustained
by the courts, 1t seems TO me that
for purposes of your action, in APP
proval of the bill, the classification
by population is entitled to your APP
prevail as a preliminary to the final
adjudication i'm the courts.
"rhe second class. which is raised
by the proviso referred to, contains
those counties which have heretofore
cast a majority vote in favor of the
small board of freeholders. You viii
observe that the general language
used brings within this class all those
counties which have by a majority
vote expressed their preference for
the small board of freeholders, even
though the adoption of the small,
board has been impossible by reason
of conditions arising either 10 the
submission of the proposition to the
Noters, or the status of the Law with
reference to certain of these counties
at the time of the election. The
qualifying feature which brings these
&C unties within the els SIS is that The
n aiority of the voters of the county
have expressed their preference foi
this form of county government This
Gle ssificatlon is subject to the same
remarks. and observations made with
reference to the previous population
class 1t has been held that the dis
tinction necessary to mark a class
Under the constitutional prohibition
of special and local Legislation must
be something in the situation or cir
eumstances OF the places embraced
by the enactment which would render
like powers. If granted. Inappropriate
&c and available for other places
State VS.. Bloomfield, AZ N. J. Law 442
Specific instances of a classification
based on other features than those
OF population will be found in the
acts classifying cities and counties
with reference to their proximity tc
the Atlantic ocean or bordering or
certain rivers.
ut cannot be gainsaid that there
is a doubt with reference TO the va
ldity of such classification, in view
of the fact that it finds no absolute
parallel in an adjudicated case, but
there are arguments in favor of such
classification, as well as arguments
against it, and the validity of the
classification. of course, can never b'
tested unless the act receives, as q
preliminary, your approval